GIFT  OF 


LAWS 
RELATING  TO  THE  NAVY 


ANNOTATED 


INCLUDING    THE    CONSTITUTION   OF   THE 

UNITED    STATES,  THE    REVISED    STATUTES 

OF  THE  UNITED  STATES,  AND  THE  UNITED 

STATES  STATUTES  AT  LARGE 


IN  FORCE  MARCH  4,  1921 


COMPILED  BY 

GEORGE  MELLING 


"WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

1922 


v.  Vi  :•:'.• 


^'  S.  SwDf,  .roor 


^tnenta. 


Gift 


7^' 
/I 


^■ 


<' 


Department  of  the  Navy, 
Office  of  the  Judge  Advocate  General, 

Washington,  June  28,  1922. 
From :  The  Judge  Advocate  General  of  the  Navy. 
To :  The  Secretary  of  the  Navy. 

1.  There  is  transmitted  herewith  a  compilation  of  the  laws  relating  to 
the  Navy,  Navy  Department,  and  Marine  Corps,  annotated,  which  has  been 
prepared  by  Mr.  George  Melling,  attorney  in  this  office,  by  authority  of  the 
Secretary  of  the  Navy,  pursuant  to  the  following  resolution  of  the  United 
States  Senate,  adopted  March  30,  1914: 

Resolved,  That  the  Secretary  of  the  Navy  be  requested  to  prepare  and  submit  to  the  Senate 
at  its  next  regular  session,  or  as  soon  thereafter  as  practicable,  a  compilation,  with  complete  index, 
of  existing  laws  relating  to  the  Navy,  Navy  Department,  and  Marine  Corps,  with  annotations 
showing  how  such  laws  have  been  construed  and  applied  by  the  Navy  Department,  the  Comp- 
troller of  the  Treasury,  the  Attorney  General,  or  the  courts,  the  cost  of  said  compilation,  not  to 
exceed  $3,000,  to  be  covered  by  appropriations  to  be  reported  by  the  Committee  on  Appropriations. 

2.  It  is  recommended  that  this  compilation  be  published  for  the  informa- 
tion of  the  naval  service,  with  the  understanding  that  no  inference  of  depart- 
mental construction  is  to  be  drawn  from  the  arrangement  of  the  laws  and 
cross  references  embodied  therein,  or  from  the  inclusion  or  omission  of  a  par- 
ticular enactment,  and  that  no  added  weight  is  given  to  any  decision  or  opinion 
by  reason  of  its  inclusion. 

J.  L.  Latimer. 
Approved,  June  28,  1922. 

Theodore  Roosevelt, 

Acting  Secretary  of  the  Navy. 
Ill 


5034:]  i 


PREFACE. 


This  compilation  is  divided  into  three  parts,  in  addition  to  an  introduction 
briefly  explaining  the  sources  of  the  law  governing  the  Navy  and  certain 
elementary  rules  for  the  interpretation  of  statutes. 

Part  1  contains  the  full  text  of  the  Constitution  of  the  United  States  and 
all  amendments  thereto,  with  digested  decisions  and  opinions  of  especial 
interest  to  the  Navy,  and  an  analytical  index  reproduced  from  official  documents. 

Part  2  consists  of  the  sections  of  the  Revised  Statutes  of  the  United  States 
relating  to  the  Navy,  Navy  Department,  and  Marine  Corps,  numerically 
arranged,  as  published  in  the  second  edition  of  the  Revised  Statutes  *  and 
subsequent  amendments  to  and  including  March  4,  1921.  The  annotations  to 
these  sections  contain  references  to  related  statutes,  as  well  as  digests  of 
decisions  and  opinions  on  the  same  subject. 

Part  3  embodies  acts  and  resolutions  of  Congress  in  force  March  4,  1921, 
which  are  not  contained  in  the  Revised  Statutes,  and  which  have  been  reprinted 
from  the  United  States  Statutes  at  Large.^  Many  of  these  laws  are  quoted 
or  summarized  in  Part  2,  in  connection  with  sections  of  the  Revised  Statutes 
to  which  they  relate;  but  they  have  nevertheless  been  placed  in  their  chrono- 
logical order  in  Part  3,  except  where  they  expressly  amend  or  reenact  par- 
ticular sections  of  the  Revised  Statutes  or  subsequent  enactments,  in  which 
case  they  have  in  general  been  reproduced  in  the  place  of  the  provision  for 
which  substituted,  without  needless  duplication.  In  Part  3  the  annotations 
consist  principally  of  cross  references  to  sections  of  the  Revised  Statutes  and 
other  enactments  on  the  same  subject  which  have  been  more  fully  an- 
notated. 

This  arrangement  of  the  compilation  will  make  it  possible  for  those  using 
it  most  frequently  to  turn  to  a  particular  section  of  the  Revised  Statutes  or 
to  an  act  or  resolution  of  a  particular  date,  with  which  they  are  familiar, 
without  the  necessity  of  consulting  the  index  on  every  occasion;  while  related 
statutes  may  also  be  readily  located,  from  the  cross  references,  without  recourse 
to  the  index.  Furthermore,  the  sections  of  the  Revised  Statutes  are  grouped, 
as  in  the  ofTicial  publication,  under  descriptive  titles  ^  and  chapter  headings 
which  will  also  facilitate  the  use  of  the  compilation  without  constant  reference 
to  the  index.  At  the  same  time,  no  effort  has  been  spared  to  make  the  index 
as  complete  as  possible. 

It  was  naturally  impracticable  to  annotate  fully  every  provision  of  law 
contained  in  the  compilation,  as  that  would  have  produced  a  work  so  voluminous 
as  to  defeat  its  purpose.  In  this  situation,  certain  sections  have  been  annotated 
copiously,  and  others  more  briefly  or  not  at  all,  to  the  end  that  the  compila- 

>  See  Introduction,  p.  2. 
'  See  Introduction,  p.  5. 
8  See  Introduction,  p.  3. 


PREFACE. 

tiou  might  onibody  the  material  which,  in  the  light  of  past  experience,  was 
believed  to  be  of  greatest  value. 

In  not  a  few  instances  conflicting  opinions  have  been  rendered  as  to  the 
interpretation  of  some  statutory  provision  concerning  which  there  has  been  no 
final  adjudication.  In  such  cases  the  various  opinions  expressed  on  the  sub- 
ject have  been  digested  without  regard  to  their  effect,  so  that  all  precedents 
might  be  available  for  consideration  should  the  question  again  arise. 

In  order  that  the  compilation  might  be  found  useful  by  those  not  trained 
in  the  law  or  not  having  access  to  the  decisions  cited  therein,  the  digests  have 
been  stripped  of  technical  language  wherever  possible,  and  made  as  full  as 
space  would  permit,  even  to  the  point,  in  some  instances,  of  reproducing  nearly 
the  entire  decision,  contrary  to  the  usual  practice  in  works  of  this  character. 
Other  decisions  which  were  not  of  general  interest,  or  which  were  merely 
cumulative,  have  been  cited  without  any  digest  of  the  particular  case. 

It  has  been  found  necessary  to  include  in  the  compilation  some  few  statu- 
tory provisions  which  were  possibly  not  in  force  on  March  4,  1921,  but  which 
had  not  been  expressly  repealed  and  as  to  the  existence  of  which  there  was 
such  doubt  that  their  omission  would  have  been  unwarranted  in  the  absence 
of  a  definite  ruling  on  the  subject.  Other  provisions  which  were  expressly 
repealed  or  plainly  superseded  by  later  enactments  have  been  omitted  or, 
when  of  possible  liistorical  value,  have  been  included  with  explanatory  notes. 

An  incomplete  advance  copy  of  the  compilation,  which  was  issued  in 
pamphlet  form  in  1915,  has  been  revised  and  embodied  in  the  finished  work. 

Certain  abbreviations  used  in  citations  tlu'oughout  the  compilation  are 
explained  in  the  Introduction.^  Other  citations  which  may  require  explana- 
tion are  the  following:  "R.  S."  refers  to  the  Revised  Statutes  of  the  United 
States,  second  edition;  ''Stat."  refers  to  the  United  States  Statutes  at  Large; 
"Comp.  Dec."  refers  to  decisions  of  the  Comptroller  of  the  Treasury;  "Op. 
Atty.  Gen."  refers  to  opinions  of  the  Attorneys  General;  "C.  M.  O."  refers  to 
court-martial  orders  published  by  the  Navy  Department;  ''S.  and  A.  Memo." 
refers  to  memoranda  published  monthly  by  the  Bureau  of  Supplies  and 
Accounts  of  the  Navy  Department;  "Naval  Dig."  refers  to  a  digest  published 
by  the  Navy  Department  in  1916;  file  numbers  refer  to  papers  on  file  in  the 
office  of  the  Secretary  of  the  Navy. 

*  See  Introduction,  p.  6. 


VI 


INTRODUCTION. 

I.  The  Constitutiox. 
II.  The  Revised  Statutes. 

III.  The  Statutes  at  Large. 

IV.  Decisions  of  Courts,  Opinions  of  Law  Officers  of  the  Government, 

Regulations,  etc. 
V.  Classification  of  Statutes. 
VI.  The  Interpretation  and  Construction  of  Statutes. 


The  law  governing  the  Navy  is  contained  principaUj  in  the  Constitution  of 
the  United  States,  the  Revised  Statutes  of  the  United  States,  and  the  United 
States  Statutes  at  Large.  In  addition  there  is  a  large  mass  of  naval  law  to  be 
found  in  the  decisions  of  courts,  opinions  of  law  officers  of  the  Government, 
regulations  issued  with  the  express  or  implied  approval  of  the  President,  and 
customs  and  usages  of  the  Navy. 

I.  The  Constitution. 

The  ConstitutiorL  consists  of  seven  original  articles,  drafted  in  1787, 
and  ninenteen  articles  in  amendment  thereof  which  have  since  been  adopted. 
It  is  provided  by  the  original  Constitution  (Art.  VI)  that  "this  Constitution, 
and  the  laws  of  the  United  States  which  shall  be  made  in  pursuance  thereof; 
and  aU  treaties  made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land." 

Congress  is  authorized  by  the  Constitution  ''to  provide  and  maintain  a 
Navy,"  and  "to  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces"  (Art.  I,  sec.  8).  These  clauses  of  the  Constitution  are  the 
authority  for  most  of  the  statutory  enactments  relating  to  the  Navy,  although 
other  less  explicit  clauses  of  the  Constitution  impHedly  authorize  legislation 
either  directly  or  indirectly  governing  the  Navy. 


(II.)  INTRODUCTION.  Revised  Statutes. 

II.  The  Revised  Statutes. 

The  Re.dsed  Statutes  "  embrace  the  statutes  of  the  United  States 
general  and  permanent  in  their  nature,  in  force  on  the  1st  day  of  December, 
1873,  as  revised  and  consohdated  by  commissioners  appointed  under  an  act  of 
Congress."  * 

The  "  Revised  Statutes  "  is  one  act  of  Congress,  over  a  thousand 
pagfts  in  length,  entitled  ''An  act  to  revise  and  consolidate  the  statutes  of  the 
United  States,  in  force  on  the  first  day  of  December,  anno  Domini  one  thou- 
sand eight  hundred  and  seventy-tlu-ee " ;  it  commences  with  the  usual  clause, 
^^  Be  it  enacted  hy  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America  in  Congress  assembled/'  contains  5,601  sections,  bears  the  approval  of 
the  President  dated  June  22,  1874,  and  provides  that  it  "shall  be  designated 
and  cited,  as  The  Revised  Statutes  of  the  United  States,"  ^ 

The  main  object  of  the  revision  was  to  incorporate  all  the  existing 
statutes  in  a  single  volume,  that  all  persons  desiring  to  know  the  written  law 
upon  any  subject  might  learn  it  by  an  examination  of  that  volume  without  the 
necessity  of  referring  to  prior  statutes  upon  the  subject.^  Accordingly  it  was 
provided  by  the  Revised  Statutes  that  "  all  acts  of  Congress  passed  prior  to  said 
first  day  of  December,  one  thousand  eight  hundred  and  seventy-tliree,  any 
portion  of  which  is  embraced  in  any  section  of  said  revision,  are  hereby  repealed 
and  the  section  applicable  thereto  shall  be  in  force  in  lieu  thereof;  all  parts  of 
such  acts  not  contained  in  such  revision,  having  been  repealed  or  superseded 
by  subsequent  acts,  or  not  being  general  and  permanent  in  their  nature."  ^ 
However,  it  is  further  provided  by  the  Revised  Statutes  that  "  aU  acts  of  Con- 
gress passed  prior  to  said  last-named  day  [December  1,  1873]  no  part  of  which 
are  embraced  in  said  revision,  shall  not  be  affected  or  changed  by  its  enact- 
ment"; ^  and  it  is  permissible,  when  necessary,  to  refer  to  the  original  statutes 
as  an  aid  to  the  interpretation  of  sections  of  the  Revised  Statutes  where  the 
meaning  of  the  latter  is  not  plain. 

The  first  edition  of  the  Revised  Statutes  was  published  in  1874, 
pursuant  to  an  act  of  Congress  approved  June  20th  of  that  year;  ^  it  is  a  tran- 
script of  the  original  Revised  Statutes  as  enacted  by  Congress  and  approved 
by  the  President,  and  which  is  preserved  in  the  Department  of  State.^  A  great 
many  errors  and  omissions  were  discovered  in  the  Revised  Statutes  after  the 
publication  of  the  first  edition,  and  several  hundreds  of  such  errors  were  cor- 
rected in  subsequent  acts  of  Congress.* 

A  second  edition  of  the  Revised  Statutes  was  published  in  1878, 
having  been  prepared  by  a  commissioner  appointed  under  authority  of  an  act 
of  Congress  approved  March  2,  1877.^  This  second  edition  "is  not  in  any 
proper  sense  a  new  revision  of  the  statutes  of  the  United  States.     The  commis- 

1  Section  5595,  R.  S. 

2  Hamilton  v.  Rathbone  (175  U.  S.,  421);  Murdock  v.  Memphis  (20  WalL,  590,  617). 

3  Section  5596,  R.  S. 
*  18  Stat..  113. 

6  Wright  V.  U.  S.  (15  Ct.  CIs.,  80). 

6  Act  Feb.  18, 1875, 18  Stat.,  316,  entitled  "  An  act  to  correct  errors  and  to  supply  omissions  in  the  Revised  Statutes 
o(  the  United  States";  act  Feb.  27,  1877  (19  Stat.,  268),  entitled  "An  act  to  perfect  the  revision  of  the  statutes  of  the 
United  States  and  of  the  statutes  relating  to  the  District  of  Columbia." 

'  19  Stat.,  268. 


Revised  Statutes.  INTRODUCTION.  (II. 

sioner  was  not  clothed  with  power  to  change  the  substance  or  to  alter  the  lan- 
guage of  the  existing  edition  of  the  Revised  Statutes,  nor  could  he  correct  any 
errors  or  supply  any  omissions  therein  except  as  authorized  by  the  several 
statutes  of  amendment.  Of  specific  amendments  there  are,  however,  several 
hundred,  which  have  been  incorporated  with  the  text.  The  portions  of  the 
statutes  repealed  are  printed  in  italics  and  included  in  brackets,  and  the  new 
matter  introduced  is  printed  in  the  ordinary  roman  letter  and  also  included 
in  brackets."  ^  This  form  has  been  followed  in  the  present  compilation,  which 
is  based  on  the  second  edition  of  the  Revised  Statutes,  being  the  edition  now  in 
general  use.  (See,  for  example,  sec.  284  of  the  Revised  Statutes,  as  printed 
herein.) 

This  second  edition  of  the  Revised  Statutes  is  only  a  new  pubhcation; 
a  compilation  containing  the  original  Revised  Statutes  with  specific  amend- 
ments afterwards  made  by  Congress  and  incorporated  therein  according  to  the 
judgment  of  the  editor.- 

By  direction  of  Congress  there  was  pubhshed,  as  part  of  the  second  edition, 
the  Articles  of  Confederation,  the  Declaration  of  Independence,  the  Ordinance 
of  1787  for  the  Government  of  the  Northwestern  Territory,  the  Constitution 
of  the  United  States  with  footnotes  referring  to  decisions  of  the  Federal  courts 
thereon,  the  "act  to  provide  for  the  revision  and  consohdation  of  the  statute 
laws  of  the  United  States,"  approved  June  27,  1866,  the  ''act  providing  for 
pubhcation  of  the  Revised  Statutes  and  the  laws  of  the  United  States,"  ap- 
proved June  20,  1874,  and  the  "act  to  provide  for  the  preparation  and  pubh- 
cation of  a  new  edition  of  the  Revised  Statutes  of  the  United  States,"  approved 
March  2,  1877.  There  is  also  pubhshed  an  act  amending  the  act  last  cited, 
approved  March  9,  1878. 

"Titles"  in  the  Revised  Statutes. — The  Revised  Statutes  is 
divided  into  74  "titles,"  which  titles  when  of  sufficient  length  are  subdivided 
into  "chapters."  Title  I,  which  is  in  two  chapters,  contains  "General  Pro- 
visions," dealing  with  "definitions,"  and  "form  of  statutes  and  effect  of 
repeals";  continuing,  the  various  titles  cover  "The  Congress"  (Title  II);  "The 
President"  (Title  III);  the  "Executive  Departments,"  collectively  and  sepa- 
rately (Titles  IV  to  XII);  "The  Judiciary"  (Title  XIII);  "The  Army"  (Title 
XIV);  "The  Navy"  (Title  XV);  "The  Militia"  (Title  X\^);  and  so  on  to 
Title  LXXIV,  which  contains  "Repeal  Provisions." 

It  is  provided  by  the  Revised  Statutes  that  "the  arrangement  and  classi- 
fication of  the  several  sections  of  the  revision  have  been  made  for  the  purpose 
of  a  more  convenient  and  orderly  arrangement  of  the  same,  and  therefore  no 
inference  or  presumption  of  a  legislative  construction  is  to  be  drawn  by  reason 
of  the  Title  under  which  any  particular  section  is  placed."  ^  Thus,  for  example, 
section  1428  of  the  Revised  Statutes,  which  appears  under  Title  XV,  "The 
Navy,"  provides  that  "the  officers  of  vessels  of  the  United  States  shaU  in  all 
cases  be  citizens  of  the  United  States."  The  law  from  which  this  section  is 
taken  did  not  relate  to  the  Navy,  and  no  inference  of  a  '^ legislative  construction" 
could  be  drawn  by  reason  of  this  clause  being  placed  in  the  revision  under  the 

I  Extract  from  preface  to  second  edition  of  the  Revised  Statutes.  » Section  5600,  R.  8. 

»  Wright  V.  U.  S.  (15  Ct.  Cls.,  80). 


3 


(II.)  INTRODUCTION.  Revised  Statutes. 

title  mentioned.  That  is  to  say,  the  mere  fact  that  this  section  is  placed  under 
the  title  relating  to  the  Navy  is  not  to  be  taken  to  mean  that  Congress  regarded 
this  law  as  applicable  to  the  Navy,  and  intended  it  to  be  so  construed.  How- 
ever, upon  other  considerations  this  section  has  been  held  to  require  that  officers 
of  vessels  of  the  Navy  must  be  citizens  of  the  United  States  the  same  as  officers 
of  private  vessels  of  the  United  States.*  (The  same  provision  is  repeated  in 
section  4131,  Revised  Statutes,  under  the  title,  "Regulation  of  Commerce  and 
Navigation.") 

Marginal  notes.^ — The  first  edition  of  the  Revised  Statutes,  by  direction 
of  Congress  contained  marginal  notes  referring  to  the  statutes  from  which 
each  section  was  compiled.  Thus,  under  Title  X,  "The  Department  of  the 
Navy,"  will  be  found  section  415  wliich  provides  that  'Hhere  shall  be  at  the 
seat  of  Government  an  Executive  Department,  to  be  known  as  the  Department 
of  the  Navy,  and  a  Secretary  of  the  Navy,  who  shall  be  the  head  thereof." 
After  this  section  appears  the  following  note:  "30  April,  1798,  c.  35,  s.  1,  v.  1,  p. 
553."  This  note  means  that  section  415  was  based  on  the  act  of  Congress 
approved  April  30,  1798,  chapter  35,  section  1,  which  act  is  published  in  volume 
1  of  the  Statutes  at  Large,  page  553.  By  reference  to  the  volume  and  page 
cited  will  be  fomid  the  original  law  establishing  the  Department  of  the  Navy. 

Many  sections  of  the  Revised  Statutes  w^ere  compiled  from  several  acts  of 
Congress,  in  which  cases  the  margmal  notes  are  more  copious;  as,  for  example, 
section  161,  concernmg  "Departmental  regulations,  property,  and  records," 
the  notes  to  which  section  refer  to  nine  acts  of  Congress,  all  of  which  must  be 
examined  if  it  is  desired  to  trace  the  history  of  the  section. 

These  marginal  notes  can  not  in  all  cases  be  accepted  as  correct,  as  in  some 
instances  erroneous  references  are  given.  Thus,  the  note  to  section  285  of  the 
Revised  Statutes  cites  volume  19,  instead  of  volume  9,  of  the  Statutes  at  Large 
for  the  original  law  upon  which  this  section  of  the  revision  was  based.  Nor  do 
the  margmal  notes  in  aU  cases  furnish  a  complete  history  of  the  legislation,  as 
for  example,  section  1422  of  the  Revised  Statutes,  w^hich  cites  an  act  passed 
in  1862  as  its  earliest  authority,  whereas  a  similar  statute  was  enacted  March  2, 
1837.     (5  Stat.,  153.) 

In  the  second  edition  of  the  Revised  Statutes  the  original  marginal  ref- 
erences are  preserved,  with  additional  notes  incorporated  pursuant  to  instruc- 
tions given  by  Congress  and  referring  to  acts  passed  subsequent  to  the  period 
covered  by  the  revision,  which  either  expressly  amend  same  or  which,  in  the 
opinion  of  the  commissioner,  "may  in  any  manner  affect  or  modify  any  of  the 
provisions  of  the  said  Revised  Statutes  or  any  of  the  amendments  thereto." 
References  to  statutes  of  this  kind  were  expressly  directed  by  Congress  to  be 
indicated  in  the  marginal  notes  by  a  difference  m  type.  Thus,  referring  again 
to  section  161,  the  last  act  cited  in  the  marginal  notes  thereto  is  "15  Aug., 
1876,  c.  287,  s.  3,  v.  18,  p.  169, "  italics  being  used  to  distinguish  this  reference 
from  those  contained  in  the  marginal  notes  which  appeared  in  the  first  edition 
under  the  same  section  and  which  are  repeated  in  the  second  edition  in  roman 
letters. 

I  See  note  tj  section  1428,  Revised  Statutes. 

■■i  In  this  compilation  (pt.  2)  the  marginal  notes  are  reprinted  from  tlie  second  edition  of  the  Revised  Statutes,  but 
appear  in  parentheses  immediately  following  the  text,  instead  o  fin  the  margin. 


statutes  at  Large.  INTRODUCTION.  (III.) 

The  marginal  notes  are  not  only  of  historical  value,  but  frequently  are 
important  in  interpreting  sections  of  the  Revised  Statutes,  where  it  becomes 
necessary  to  refer  to  the  original  law  in  order  to  ascertain  the  meaning  of 
ambiguous  language  occurring  in  the  revision.^ 

III.  The  Statutes  at  Large. 

The  Statutes  at  Large  consist  at  this  writing  of  41  volumes,  extending 
from  March  4,  1789,  to  March  4,  1921.  The  laws  contained  in  the  first  17 
volumes  are  practically  superseded  by  the  Revised  Statutes,  and  occasions  for 
reference  to  said  volumes  will  ordinarily  be  infrequent.  The  remainmg  vol- 
umes, however,  commencing  with  December  1,  1873,  must  always  be  consulted 
in  connection  with  the  Revised  Statutes  in  order  to  ascertain  whether  any 
particular  section  of  the  revision  has  been  repealed,  superseded,  amended,  or 
otherwise  affected  by  subsequent  enactments.  More  than  a  thousand  sections 
of  the  revision  have  thus  been  modified  by  various  later  statutes,  in  addition 
to  which  a  "Criminal  Code"  and  a  "Judicial  Code"  have  been  enacted,  revis- 
mg  and  superseding  the  sections  of  the  Revised  Statutes  as  well  as  subsequent 
laws  on  those  subjects. 

An  "  Index  Analysis  of  the  Federal  Statutes,"  from  1789  to  1907, 
was  pubhshed  by  authority  of  Congress  in  1908,  and  this  will  be  found  inval- 
uable in  locating  the  sections  of  the  Revised  Statutes  on  any  subject  and 
amendatory  acts  contained  in  volumes  18  to  34  of  the  Statutes  at  Large.  For 
later  enactments  reference  must  be  had  to  the  official  index  contained  in  each 
volume  of  the  Statutes  at  Large,  with  the  assistance  where  available  of 
unofficial  pubfications,  such  as  the  "United  States  Compiled  Statutes,"  the 
"Federal  Statutes  Annotated,"  the  "United  States  Statute  Citer-Digest,"  etc., 
to  which  pubfications  supplements  are  issued  periodically,  keeping  the  various 
works  practically  up  to  date. 

IV.  Decisions  of  Courts,   Opinions  of  Law  Officers  of  the  Govern- 
ment, Regulations,  etc. 

Authoritative  decisions  and  opinions  of  the  Federal  courts  and 
law  oflB.cers  expounding  the  law  contained  in  the  Revised  Statutes  and  the 
Statutes  at  Large  become,  in  effect,  a  part  of  the  various  laws  which  have 
been  the  subject  of  such  decisions  and  must  be  carefully  consulted  if  it  is  desired 
to  know  definitely  what  the  law  is  on  any  given  subject.  Thus,  let  it  be  sup- 
posed that  the  question  is.  What  law  authorizes  the  retirement  of  warrant 
officers  of  the  Navy  for  physical  disabifity?  An  examination  of  the  Revised 
Statutes  and  Statutes  at  Large  will  not  disclose  any  law  specificaUy  covering 
the  point  at  issue.  Turning,  then,  to  the  decisions  of  the  courts,  we  find 
that  the  question  was  considered  by  the  United  States  Supreme  Court  in  the 
case  of  Brown  v.  United  States,^  and  that  it  was  there  held  to  be  doubtful 
whether  the  retirement  of  warrant  officers  for  physical  disabifity  was  authorized 
by  law,  but  that  the  court  decided  to  adopt  the  decision  of  the  Navy  Depart- 
ment that  warrant  officers,   the  same   as   commissioned  ojficers,  should  be 

»  See  below,  VI,  D,  2,  "Marginal  Notes  In  Revised  Statutes."  *113  U.  S.,  571. 


(IV.)  INTRODUCTION.  Decisions,  etc. 

retired  under  sections  1448  to  1455,  Revised  Statutes.  The  result  of  this 
decision  is  that  the  sections  cited  include  warrant  officers  the  same  as  if  they 
had  boon  spocificaUy  montionod  therein  by  Congress. 

Decisions  of  the  United  States  Supreme  Court  of  course  rank  first 
among  the  Fetk^ral  authorities,  and  those  are  published  officially  in  what  are 
known  as  the  United  States  Reports,  although  the  earlier  volumes  are  known 
and  commonly  cited  by  the  names  of  the  ofhcial  reporters,  viz,  Dallas,  Cranch, 
Wheaton,  Peters,  Howard,  Black,  Wallace,  and  Otto.  Thus, ''  1  Pet.,  100,"  would 
mean  volume  1  of  Peters's  reports  of  the  decisions  of  the  United  States  Supreme 
Court,  page  100.  The  official  pubhcations  of  later  decisions  of  the  Supreme 
Court  are  cited  simply  as  "U.  S."  Thus  "200  U.  S.,  100,"  would  mean  volume 
200  of  the  decisions  of  the  United  States  Supreme  Court,  page  100. 

Decisions  of  Inferior  Federal  courts  come  next,  and  these  may  be 
found  in  the  Federal  Cases,  cited  as  "Fed.  Cas.,"  and  extending  from  1789  to 
1880;  and  the  Federal  Reporter,  cited  as  "Fed.  Rep."  or  "Fed.,"  and  extending 
from  1880  to  date;  both  of  which  reports,  although  unofficial  publications,  are 
generally  consulted  and  cited  by  lawyers  and  courts,  the  official  publications  of 
the  same  decisions  being  of  more  limited  circulation.  These  reports,  however, 
do  not  mclude  the  decisions  of  the  Court  of  Claims,  which  are  published  officially 
in  what  are  known  as  the  Court  of  Claims  Reports,  cited  as  "Ct.  Cls."  or 
"C.  Cls.,"  and  contain  a  particularly  large  number  of  decisions  of  importance 
to  the  Army  and  Navy.  ^ 

The  Attorney  General  being  the  chief  law  officer  of  the  Government, 
his  official  opinions,  which  are  published  by  authority  of  Congress,  come  next 
in  order  after  decisions  of  the  Federal  courts  in  the  interpretation  of  Federal 
statutes  and  the  appUcation  of  judicial  decisions  relating  thereto.  Other 
opinions  and  decisions  are  pubhshed  by  different  departments  of  the  Govern- 
ment, such  as  the  Decisions  of  the  Comptroller  of  the  Treasury,  Decisions  of 
the  Department  of  the  Interior,  Decisions  of  the  Interstate  Commerce  Com- 
mission, etc. 

Decisions  of  State  courts  also  contain  many  cases  relating  to  naval 
law,  which,  while  not  controlling  upon  the  Federal  Government,  are  usually 
regarded  as  instructive  and  accorded  more  or  less  weight,  in  the  consideration 
of  similar  questions,  where  not  in  conflict  with  any  Federal  authority. 

Short-cuts  to  these  decisions  are  to  be  found  in  the  digests  and  indexes 
pubhshed  in  connection  therewith,  and  in  legal  encyclopedias,  text-books,  and 
unofficial  indexes  and  digests.  Among  the  latter  the  most  important  is  the 
"American  Digest,"  which  contains  in  accessible  form  a  complete  digest  of  all 
reported  decisions  of  American  courts,  commencing  with  the  year  1658  and  kept 
practically  up  to  date  by  new  editions  and  supplements.  Of  value  in  this 
connection  are  the  unofficial  reports  of  leading  cases,  published  with  notes,  in 
which  are  collected  important  decisions  bearing  upon  the  points  discussed, 
such  as  the  "Lawyers  Reports  Annotated,"  cited  as  "L.  R.  A.,"  the  "American 
and  Enghsh  Annotated  Cases,"  cited  as  "Ann.  Cas.,"  etc.  Also  should  be 
mentioned  what  are  known  as  "Shepard's  Citations,"  which  enable  the  lawyer 
to  trace  the  decisions  in  which  a  particular  case  has  been  cited,  affirmed,  fol- 


'  For  brief  explanation  of  the  judicial  system  of  the  United  States,  see  note  to  the  Constitution,  Article  I,  section  8, 
clause  9. 


Classes  of  Statutes.  INTROD  UCTION.  (V.) 

lowed,  distinguished,  reversed,  etc.  Of  these,  "Shepard's  United  States 
Citations,"  and  "Shepard's  Federal  Citations"  are  the  ones  to  be  consulted 
in  connection  with  decisions  of  the  Federal  courts. 

Regulations  and  customs  and  usages  of  the  Navy,  where  approved 
by  Congress,  or  not  in  conflict  with  any  statutory  enactment,  have  the  force 
of  law  and  are  so  regarded  by  the  courts.  For  reference  to  the  authorities 
relating  to  this  subject,  and  bearing  particularly  upon  the  force  and  effect  of 
Navy  Regulations,  Naval  Instructions,  usages  of  the  Navy,  etc.,  see  notes  to 
sections  161  and  1547  of  the  Revised  Statutes,  published  in  this  compilation. 

V.  Classification  of  Statutes. 

A  great  many  classifications  of  statutes  have  been  adopted  and  are  of 
importance  in  connection  with  rules  to  be  appUed  to  their  interpretation.  Of 
the  different  classes  the  following  may  be  mentioned  and  briefly  explained : 

A  declaratory  statute  is  one  which  merely  declares  or  afiirms  what  is 
already  the  existing  law  by  established  custom  or  by  constitutional  or  statutory 
provision.  Thus,  by  section  1458  of  the  Revised  Statutes,  under  the  title  "The 
Navy,"  it  was  provided  that  "  the  next  officer  in  rank  shall  be  promoted  to  the 
place  of  a  retired  officer,  according  to  the  established  rules  of  the  service;"  by 
various  laws  referrmg  to  different  classes  of  officers  of  the  Navy  it  is  required 
that  they  pass  prescribed  examinations  prior  to  promotion,  although  a  general 
requirement  to  the  same  effect  is  contained  in  sections  1493  and  1496  of  the 
Revised  Statutes;  by  act  of  August  22,  1912,^  it  is  provided  that  the  President 
may  mitigate  or  remit  disabilities  imposed  by  law  upon  convicted  deserters 
from  the  Navy,  a  power  which  he  already  possessed  and  exercised  under  the 
Constitution;  and  by  sections  177  to  182  of  the  Revised  Statutes  the  President 
is  empowered  to  make  temporary  designation  of  an  officer  to  perform  the  duties 
of  the  head  of  a  department  or  bureau  in  case  of  the  death,  resignation,  absence 
or  sickness  of  the  incumbent,  although  prior  to  the  enactment  of  the  law  now 
contained  in  those  sections  it  had  been  held  by  the  Attorney  General  that  this 
power  was  possessed  and  properly  exercised  by  the  President  under  the  Constitu- 
tion.- In  that  case,  however,  the  Attorney  General  said  that  "  a  general  pro- 
vision of  law  is  desirable  to  remove  all  doubt  on  the  subject,"^  and  this  is  the 
principal  value  of  all  such  declaratory  statutes. 

Public  and  private  acts. — Of  "public"  and  "private"  statutes  it  has 
been  said  that  "the  former  embrace  the  whole  community;  the  latter  only 
certain  individuals  or  associations.  The  only  important  distinction  is  that 
courts  take  notice  of  the  former  without  special  reference,  but  not  of  the  latter. 
It  is  usual,  however,  to  do  away  with  this  distinction,  by  inserting  in  private 
statutes  a  special  clause  declaring  that  they  shall  be  treated  as  public."^ 

Special  or  private  acts  are  rather  exceptions  than  rules;  being  those  which 
operate  only  upon  particular  persons  and  private  concerns,  the  judges  are  not 
bound  to  take  notice  unless  they  be  formally  shown  and  pleaded.* 

1  37  Stat.,  356. 

2  See  notes  to  sections  177  and  181,  Revised  Statutes. 

3  Walker's  American  Law,  section  17.  See  also  Unity  v.  Barrage  (103  U.  S.,  447,  454,  456);  Beaty  v.  Knowler  (4  Pet. 
152);  Railroad  Co.  v.  Richmond (96 U.S.,  521,  529);  U.  S.  v.  St.  Anthony  R. Co.  (192  U.  S.,  524);  Young  y.  Bark  (4  Cranch, 
384,388);  Gardner  v.  CoUector  (6  Wall.,  499,508). 

*  11  Enc.  U.  S.  Rep.,  71;  Unity  v.  Barrage  (103  U.  S.,  447,  454);  People  v.  Wright  (70  ni.,  388,  398). 


(V.)  INTRODUCTION.  Classes  of  Statute. 

"In  this  country  the  disposition  has  been,  on  the  whole,  to  enlarge  the 
Umits  of  the  class  of  public  acts,  and  to  bring  within  it  all  enactments  of  a 
general  character,  or  whicli  in  any  way  affect  the  community  at  large."  ' 

Congress  has  provided  that  "the  term  'private  bill'  shall  be  construed  to 
mean  all  bills  for  the  rehef  of  private  parties,  biUs  granting  pensions,  bills 
removing  politicjil  disabilities,  and  bills  for  the  survey  of  rivers  and  harbors."  ^ 

A  penal  statute,  as  the  name  implies,  is  one  which  imposes  a  penalty. 
This  class  embraces  all  such  statutes  as  provide  for  the  punishment  of  offenses 
against  the  State  and  which  are  within  the  pardoning  power  of  the  Executive.^ 
In  a  broader  sense  the  term  includes  acts  which  are  penal  in  their  nature, 
although  not  enforceable  by  a  criminal  prosecution.*  A  statute  providing  that 
no  officer  or  enlisted  man  of  the  Army  shall  receive  pay  for  time  absent  from 
duty  on  account  of  misconduct  is  in  the  nature  of  a  penal  statute  and  must  be 
construed  strictly ;  ^  but  one  requiring  that  officers  of  the  Navy  who  are  found 
unfit  for  promotion  from  causes  arising  from  their  own  misconduct  shall  be 
discharged  with  not  more  than  one  year's  pay,  is  not  a  penal  statute,^  as  it  was 
not  intended  for  the  punishment  of  such  officers,  but  primarily  to  promote  the 
efficiency  of  the  service. 

A  remedial  statute  is  one  which  is  beneficial  in  its  nature,  intended  to 
redress  some  existing  grievance,  to  introduce  some  new  regulation  or  proceeding 
conducive  to  the  public  good,  or  to  supply  defects  of  the  law  arising  from 
mistake,  change  of  circumstances,  etc.''  Thus  a  law  providing  for  the  reap- 
pointment and  retirement  of  a  former  officer  of  the  Navy  is  remedial,  ^  as  are 
laws  providing  for  the  removal  of  the  charge  of  desertion  standing  on  the 
records  of  the  Army  or  Navy  against  certain  classes  of  persons  who  served 
in  the  Civil  War,  *  laws  authorizing  the  issuance  of  discharge  certificates  in  true 
name  to  persons  who  enlisted  under  assumed  names,  etc.;  also  a  statute  pro- 
viding for  extensions  of  enhstments  by  men  in  the  Navy.  '" 

A  mandatory  statute  is  one  which  absolutely  requires  strict  com- 
phance  with  its  terms,  so  that  official  acts  not  done  in  the  manner  it  prescribes 
are  null  and  void.  " 

A  directory  statute  is  one  intended  merely  "for  the  guide  of  officers  in 
the  conduct  of  business  devolved  upon  them,  which "  does  "not  limit  their  power 
or  render  its  exercise  in  disregard  of  the  [statutory]  requisitions  ineffectual. 
Such  generally  are  [statutory]  regulations  designed  to  secure  order,  system, 
and  dispatch  in  proceedings,  and  by  a  disregard  of  which  the  rights  of  parties 
interested  can  not  be  injuriously  affected."  '^ 

1  Unity  V.  Burrage  (103  U.  S.,  447,  45.5);  Ketchum  v.  St.  Louis  (101  U.  S.,  315). 

2  Public  printing  and  binding  act,  Jan.  12, 1895,  section  55  (28  Stat.,  609),  as  amended  by  act  Jan.  20, 1905,  section  2 
(33  Stat.,  611). 

«  U.  S.  t'.  Chouteau  (102  U.  S.,  603,  611);  Huntington  v.  AttriU  (146  U.  S.,  657,  667). 

<  Huntington  v.  Attrill  (146  U.  S.,  657,  660,  667). 

'20Comp.  Dec.,  69. 

«  See  note  to  act  Aug.  5, 1882  (22  Stat.,  286);  file  26260-1392,  June  29, 1911;  see  also  Street  v.  U.  S.  (133  U.  S.,  300) ;  and 
see  note  to  section  1441,  Revised  Statutes. 

'  See  Baylies  t'.  Curry  (30  111.  App.,  105, 109);  Van  Hook  v.  Whitlock  (N.  Y.),  2  Edw.  Ch.,  304,  310;  O'Connor  v.  State 
(71  S.  W.  (Tex.),  409,  411);  In  re  Lauritsen  (99  Minn.  520, 109  N.  W.  404,  408);  Buckmaster  v.  McEIroy  (20  Nebr.,  557, 
564,  31  N.  W.,  76,  80);  Western  Trav.  Ace.  Assn.  v.  Taylor  (87  N.  W.,  950,  953,  62  Nebr.,  783);  Montpelier  v.  Senter  (72 
Vt.,112,  47  Atl.,392,393). 

8  Quackenbush  v.  U.  S.  (177  U.  S.,  20,  27). 

»  File  26539-551,  Mar.  17,  1913;  19  Op.  Atty.  Gen.,  222;  Cole  v.  U.  S.  (34  Ct.  Cls.,  454). 

10  20  Comp.  Dec.,  380. 

»  36Cyc.,  1157;  Bondw.  Baltimore  (118  Md.,  159,  84  Atl.,  258,  260);  French  v.  Edwards  (13  Wall.,  506);  Hubbert  v. 
Campbellsville  Lumber  Co.  (191  U.  S.,  76,  77). 

>2  French  v.  Edwards  (13  WaU.,  511). 

8 


statutory  Construction.  INTRODUCTION.  (VI,  A.) 

A  prospective  statute  is  one  which  applies  to  future  cases  and  con- 
ditions. 

A  retrospective  statute  is  one  which  applies  to  and  operates  upon  a 
past  state  of  facts.  A  retrospective  statute  affectmg  and  changing  vested 
rights  is  very  generally  considered  in  this  country  as  founded  on  unconstitu- 
tional principles  and  consequently  inoperative  and  void.  * 

A  curative  statute  is  a  retrospective  law  ordinarily  passed  to  validate 
irregularities  in  legal  proceedings,  or  to  give  effect  to  contracts  which  might 
otherwise  fall  for  failure  to  comply  with  teclinical  legal  requirements.^  Cura- 
tive acts  may  also  be  embraced  in  the  remedial  class. 

"The  power  which  can  direct  what  proceedings  shall  be  had  can  approve 
and  make  valid  any  proceedings  which  are  actually  taken.  The  power  which 
can  give  authority  to  act  can  ratify  any  act  that  is  taken,  and  generally  leg- 
islative recognition  of  an  act  or  a  corporation  validates  the  act  or  the  corpo- 
ration, although  neither  one  nor  the  other  may  have  had  fuU  prior  legal 
authority."  ^ 

VI.  The  Interpretation  and  Construction  of  Statutes. 

A.  GENERAL    CONSIDERATIONS. 

B.  THE    LEGISLATIVE    INTENT    TO    BE    GIVEN    EFFECT. 

C.  HOW    LEGISLATIVE    INTENT    IS    TO    BE    ASCERTAINED. 

D.  AIDS    TO    INTERPRETATION    OF   AMBIGUOUS    STATUTES. 

E.  CONSTRUCTION    OF    PARTICULAR    STATUTES. 

A.    GENERAL    CONSIDERATIONS. 

A  distinction  has  been  drawn  between  the  words  "interpretation"  and 
"construction,"  the  former  being  held  to  mean  the  reading  of  a  statute  accord- 
ing to  its  letter,  while  the  latter  is  defined  to  be  the  reading  of  a  statute  accord- 
ing to  its  spirit  and  intent;*  it  being  said  that  "the  very  essence  of  construction 
is  the  extension  of  the  meaning  of  a  statute  beyond  its  letter."^  In  practice, 
however,  this  distinction  is  not  always  observed,  the  terms  frequently  being 
used  interchangeably. 

"On  the  abstract  principles  which  govern  courts  in  construing  legislative 
acts,  no  difference  of  opinion  can  exist.  It  is  only  in  the  application  of  those 
principles  that  the  difference  discovers  itseK."^  It  has  been  said  that  "there 
are  many  rules  of  interpretation,  but  they  are  of  little  use;  common  sense  is 
the  best  guide." ^  It  has  also  been  said  that  "it  is  perfectly  possible  to  make 
almost  anything  out  of  a  tariff  act  by  construction  without  violating  rules  for 
the  interpretation  of  statutes,"^  and  that  "when  justices  of  the  United  States 

1  Heinzen  v.  U.  S.  (42  Ct.  Cls.,  58).    See  also  Hubbert  v.  CampbellsviUe  Lumber  Co.  (191  U.  S.,  76, 77);  Bond  v.  Balti- 
more (118  Md.,  159,  84  Atl.  258,  260);  36  Cyc,  1157;  Compare  Schenck  v.  Peay,  21  Fed.  Cas.  No.  12451. 

2  Schamblin  v.  Means  (6  Cal.  App.,  261,  91  Pac,  1020,  1022);  McSurely  v.  McGrew  (140  Iowa,  163,  118  N.  W.,  415, 
119);  Meigs  v.  Roberts  (162  N.  Y.,  371,  56  N.  E.  838,  840). 

3  Street  v.  IT.  S.  (133  U.  S.,  307);  see  also  13  Comp.  Dec,  417. 

4  U.  S.  V.  Farenholt  (206  U.  S.,  226);  Felton  v.  U.  S.  (96  U.  S.  699,  702). 
'  Williams  v.  Gaylord  (186  U.  S.,  157, 163). 

6  U.  S.  V.  Fisher  (2  Cranch,  358,  386). 

'  Walker's  Am.  L.,  sec.  17. 

»  Clay  V.  Erhardt  (48  Fed.  Rep.,  294). 

9 


(VI,  B.)  INTRODUCTION.  Statutory  Construction. 

Supreme  Court  (or  of  any  other  court)  divide  on  a  question  of  statutory  con- 
struction, the  minority  rarely  have  difhculty  in  finding  well-settled  rules  of 
interpretation  to  support  their  dissent."*  However,  the  rules  by  which  courts 
are  guided  in  construing  statutes  are  sanctioned  by  wisdom  and  experience,^  of 
which  they  are  the  outgrowth;  an  examination  of  these  rules  will  show  that 
"common  sense"  is  generally  their  foundation;  and  in  cases  where  different 
rules,  if  applied,  would  lead  to  opposite  results  in  construing  a  statute,  ordinarily 
little  difhculty  will  be  experienced  in  determining  which  of  the  rules  must 
yield  in  the  particular  case,  resort  being  had  under  such  circumstances  to  the 
many  aids  to  interpretation  sanctioned  by  precedent.  In  involved  cases, 
where  several  statutes  are  passed  at  different  times  relating  to  the  same  subject, 
the  provisions  of  which  to  the  uninitiated  may  appear  to  be  hopelessly  at 
variance,  apphcation  of  established  principles  of  construction  will  generally 
serve  to  evolve  a  systematic  and  harmonious  legislative  scheme  from  the  whole. 

However,  regardless  of  individual  opinions  as  to  the  value  of  rules  of 
construction,  it  is  certam  that  a  knowledge  of  the  fundamental  princi- 
ples and  their  application  is  necessary  if  it  is  desired  to  construe  a  law  with 
reasonable  assurance  that  the  result  reached  will  likely  be  sustained  by  a  court, 
if  later  called  upon  judicially  to  construe  the  same  statute;  for  if  the  con- 
struction placed  upon  a  law  can  not  be  sustained  by  any  estabUshed  canon  of 
statutory  construction,  it  is  apparent  that  such  construction  will  have  diffi- 
culty in  prevailing  against  estabhshed  rules  if  attacked  in  a  court  by  which 
such  rules  will  certainly  be  apphed. 

The  principles  stated  in  the  followmg  pages  are  well  established.  Gen- 
erally, illustrative  cases  have  been  mentioned  or  cited,  but  the  decisions  in 
which  the  different  rules  of  construction  have  been  applied  are  so  numerous 
and  the  circumstances  so  varied  that  to  attempt  more  than  a  bare  outline 
would  be  beyond  the  scope  of  this  introduction. 

B.    THE    LEGISLATIVE    INTENT    TO    BE    GIVEN    EFFECT. 

The  first  rule  to  be  observed  in  construing  statutes  is  that  if  possible  an 
act  is  to  be  so  construed  as  to  effectuate  the  legislative  intent.  This  has  been 
called  "the  cardmal  rule  of  construction."  ^ 

1.  What  is  the  legislative  intent. — The  "legislative  intent"  does  not 
mean  the  mtention  of  the  person  who  drafted  the  law,  nor  the  intention  of  the 
individual  member  who  introduced  it  in  the  legislative  body,  but  the  intention 
of  the  legislature  as  a  whole.  The  purpose  of  the  majority  who  voted  for  the 
passage  of  the  law  may  have  been  entirely  different  from  that  of  the  particular 
individuals  who  proposed  it  or  who  may  have  been  interested  in  securing  its 
enactment.  Accordingly  it  is  established  by  the  authorities  that  the  intention 
of  the  individual  by  whom  a  statute  was  framed  can  not  be  considered  in 
determining  the  meaning  of  such  statute.* 

1 1  Fed.  Stat.  Ann.  (2d  ed.),  25. 

2  See  The  Paulina's  Cargo  (7  Cranch,  52,  60);  Cary  v.  Curtis  (3  How.,  236,  239);  The  Mary  Ann  (8  Wheat.,  SsO,  3S7). 

>  Postmaster  General  v.  Early  (12  Wheat.,  136,  152);  see  also  9  Op.  Atty.  Gen.,  472,  In  which  it  was  stated:  "It  was 
unnecessary  to  quote  a  judicial  decision  for  the  purpose  of  proving  that  all  written  laws  are  to  be  construed  according  to 
the  Intention  of  the  legislature,  for  that  is  a  fundamental  principle  which  nobody  denies." 

*  File  24482-34,  May  1, 1911;  see  below,  VI,  D,  5,  "Legislative  History." 

10 


statutory  Construction.  INTRODUCTION.  (VI,  B.) 

2.  The  courts  always  presume  that  the  legislature  acts  advisedly 
and  with  full  knowledge  of  the  situation. ^  "We  must  assume  that  the  mem- 
bers by  whose  vote  the  act  became  a  law  fully  weighed  its  meaning  and 
intended  what  it  expressed. "^  Thus,  in  prohibiting  heads  of  departments, 
other  than  the  Attorney  General,  from  employing  attorneys  or  counsel  at  the 
expense  of  the  United  States,  Congress  is  presumed  to  have  contemplated, 
inasmuch  as  ships  of  war  are  constantly  on  the  high  seas  and  in  foreign  ports, 
that  questions  of  law  would  arise  in  respect  to  them  in  the  administration  of 
the  Navy  Department,  and  accordingly  intended  to  include  the  employment  of 
counsel  in  foreign  countries  within  the  prohibition  of  the  statute.^  And  in 
construing  a  statute  providing  for  the  distribution  of  prize  money  and  author- 
izing payment  of  a  specified  bounty  where  the  enemy's  vessel  was  "of  equal 
or  superior  force,"  it  was  held  that  the  court  could  not  suppose  that  Congress 
overlooked  the  fact  that  an  enemy's  vessel  might  be  supported  by  land  bat- 
teries, mines,  and  torpedoes,  and  accordingly  that  "the  enemy's  vessel"  did 
not  mean  the  enemy's  vessel  and  the  land  batteries,  mines,  and  torpedoes  by 
wliich  it  was  supported.* 

3.  It  is  the  intent  of  the  legislature,  as  expressed  in  the  law  itself 
and  apparent  upon  its  face,  that  must  govern  its  construction  if  that  intent 
can  reasonably  be  gathered  from  its  terms.^ 

4.  Where  the  language  of  the  statute  is  plain  and  unambiguous, 
*'  the  legislature  should  be  intended  to  mean  what  they  have  plainly  expressed," 
and  there  is  no  need  to  resort  to  rules  of  construction  to  get  at  the  intent  and 
meaning  of  the  law.^  "Legislative  enactments,  where  the  language  is  unam- 
biguous, can  not  be  changed  by  construction,  nor  can  the  language  be  divested 
of  its  plain  and  obvious  meaning. ' '  ^ 

5.  It  is  the  province  of  courts  to  construe  laws  and  not  to  make 
them;  accordingly,  considerations  of  injustice,  inconvenience,  and  absurdity 
which  may  result  from  interpreting  a  statute  according  to  its  letter,  where  clear 
and  unambiguous,  must  be  addressed  to  the  legislature.^  Where  great  incon- 
venience will  result  from  a  particular  construction,  that  construction  is  to  be 
avoided,  unless  the  meaning  of  the  legislature  be  plain;  in  which  case  it  must  be 
obeyed.^  It  is  only  where  the  proper  construction  is  otherwise  doubtful  that 
arguments  based  on  the  mconvenience,  injustice,  or  prejudice  to  the  public 
interests  resulting  from  a  proposed  construction  may  be  considered.^"  "It  is, 
however,  an  adamantine  rule  of  interpretation  that  the  intention  of  the  legis- 
lature is  to  be  gathered  from  the  words  of  the  statute;  and  where  the  phrase- 

1  Chesapeake,  etc.,  Tel.  Co.  v.  Manning  (186  U.  S.,  238, 245);  Field  v.  Clark  (143  U.  S.,  649, 672);  28  Op.  Atty.  Gen.,  87; 
19  Op.  Atty.  Gen.,  591. 

2  Slidell  V.  Grandjean  (111  U.  S.,  412,  437). 

3  21  Op.  Atty.  Gen.,  195;  see  section  189,  Revised  Statutes,  and  note. 

<  Dewey  v.  U.  S  (178  U.  S.,  510).    [Prize  money  is  not  now  allov/ed  by  law.] 
i  File  26253-200:1,  Feb.  17,  1912;  see  also  file  2625.3-114,  Aug.  19,  1910,  page  14. 
«  Lake  Co.  v.  Rollins  (1.30  U.  S.,  670);  Dewey  v.  U.  S.  (178  U.  S.,  521);  27  Op.  Atty.  Gen.,  431,  432. 
'  State  Tonnage  Tax  Cases  (12  Wall.,  204,  217);  Rodger's  case  (36  Ct.  Cls.,  266);  Clark's  case  (37  Ct.  Cls.,  60);  26  Op. 
Atty.  Gen.,  537. 

8  11  Enc.  U.  S.  Rep.,  151;  Donn  v.  Hamdon  (1  Paine  61,  9  Fed.  Cas.  No.  4819,  reversed,  1  Wheat.,  300);  20  Op.  Atty. 
Gen.,  736;  Thoraley  v.  U.  S.  (113  U.  S.,  310, 315);  U.S.  v.  Chase(135U.  S., 255, 262);  U.  S.  v.  Alger  (152  U.  S.,  384,  397);  Plessy 
V.Ferguson  (163  U.  S.,  537,  558);  Hawaii  v.  Mankichi  (190  U.  S.,  197,247);  Citizens' Bank?;.  Parker  (192  U.S.,  73, 80);  New 
Jersey  U.Anderson  (203  U.S.,  483,  490);  Texas,  etc.,  R.  Co.  v.  Abilene  Cotton  Oil  Co.  (204  U.S.,  426);  The  Garden  City  (26 
Fed.  Rep.,  766);  In  re  Howard  (63  Fed.  Rep.,  265). 

9  U.  S.  V.  Fisher  (2  Cranch,  358,  386). 

10  File  26521-30,  Jan.  25, 1912;  26  Op.  Atty.  Gen.,  537. 

54641°— 22 2  11 


(VI,  B.)  INTRODUCTION.  Statutory  Construction. 

ology  admits  of  no  doubt,  the  definitely  expressed  meaning  must  be  recognized, 
notwithstanding  the  statute  as  thus  construed  may  bo  deemed  irrational  legis- 
lation."' The  province  of  a  court  "is  to  declare  what  the  law  is,  and  not, 
under  the  guise  of  interpretation,  or  under  the  influence  of  what  may  be  sur- 
mised to  be  the  policy  of  the  Government,  so  to  depart  from  sound  rules  of 
construction  as  in  effect  to  adjudge  that  to  be  law  which  Congress  has  not 
enacted  as  such."^ 

6.  The  spirit  and  purpose  of  the  act  are  not  to  be  lost  sight  of  in 
a  strict  adherence  to  its  letter;  ^  for  " a  thing  which  is  within  the  intention 
of  the  makers  of  a  statute  is  as  much  within  the  statute  as  if  it  were  within  the 
letter;  and  a  thing  which  is  within  the  letter  of  the  statute  is  not  within  the 
statute  imless  it  be  within  the  intention  of  the  makers."*  The  classical  prece- 
dent commonly  cited  by  courts  on  this  point  is  the  case  in  which  a  statute  pro- 
hibiting the  drawing  of  blood  in  the  streets  of  Bologna  was  held  not  to  apply  to 
a  surgeon  who  drew  blood  in  treating  a  patient  suddenly  taken  ill  in  the  street, 
although  literally  construed  he  was  subject  to  its  penalties.  Similarly  a  statute 
providing  that  a  prisoner  who  broke  prison  should  be  held  guilty  of  a  felony 
would  not  be  applied  by  the  court  to  a  prisoner  who  broke  out  of  prison  when  it 
was  on  fire;  "for  he  is  not  to  be  hanged  because  he  would  not  stay  to  be  burnt." 
These  cases  were  quoted  by  the  Supreme  Court  of  the  United  States  in  holding 
that  a  pohce  officer  who  arrested  a  mail  carrier  upon  a  charge  of  miu^der,  while 
the  mail  carrier  was  on  duty,  was  not  guilty  of  a  crime  in  delaying  the  mails 
although  he  thereby  violated  the  letter  of  a  Federal  statute.^ 

A  leading  case  on  this  point  is  Holy  Trinity  Church  v.  United  States.^  The 
statute  prohibited  the  importation  of  aliens  under  a  contract  to  perform  labor 
in  this  country.  Certain  classes  of  persons,  such  as  actors,  artists,  lecturers, 
etc.,  were  expressly  excepted  from  the  prohibition  of  the  statute,  but  ministers 
were  not  so  excepted.  It  was  nevertheless  held  by  the  court  that  the  intent  of 
the  law  was  not  to  include  ministers  in  its  prohibition,  and  accordingly  that  the 
bringmg  of  a  minister  to  this  country  imder  contract  was  not  prohibited  by  the 
statute,  although  within  its  letter.  "The  operation  of  such  a  statute  must  be 
restrained  within  narrower  limits  than  its  words  import,  if  the  court  is  satisfied 
that  the  hteral  meaning  of  its  language  would  extend  to  cases  which  the  legis- 
lature never  intended  to  include  in  it."  ^ 

So  also  the  meaning  of  the  legislature  may  be  extended  beyond  the  precise 
words  used  in  the  law,  from  the  reason  or  motive  upon  which  the  legislature 
proceeded,  from  the  end  in  view,  or  the  purpose  which  was  designed;  the  limita- 
tion of  the  rule  being  that  to  extend  the  meaning  to  any  case  not  included 
within  the  words,  the  case  must  be  shown  to  come  within  the  same  reason 
upon  which  the  lawmaker  proceeded,  and  not  merely  a  like  reason.^  Thus  the 
words  "assistant  surgeons,"  as  used  in  the  Navy  personnel  act  of  March  3, 

1 1  Fed.  Stat.  Ann.  (2d.  ed.),  99;  see  also  9  Op.  Atty.  Gen.,  50;  13  Op.  Atty.  Gen.,  460. 
2  Dewey  v.  U.  S.  (178  U.  S.,  521);  White  v.  U.  S.  (37  Ct.  Cls.,  378;  191  U.  S.,  545,  551). 
«  Felton  V.  U.  S.  (96  U.  S.,  699,  702). 

<26  0p.  Atty.  Gen.,  356,  362;  U.  S.  v.  Freeman  (3  How., 565);  Raymond  v.  Thomas  (91  U.  S.,715);  11  Enc.U.S.Rep. 
113, 114. 

6  U.  S.  ».  Kirby  (7  Wall.,  482). 

«  143  U.S.,  457. 

'  U.  S.  v.  American  Bell  Tel.  Co.  (159  U.  S.,  548, 549);  see  also  Brewer  v.  Blougher  (14  Pet.,  198). 

« U.  S.  V.  Freeman  (3  How.,  656) 

12 


statutory  Construction.  INTRODUCTION.  (VI,  B.) 

1899,  were  construed  to  include  passed  assistant  surgeons,  in  order  to  effectuate 
the  intent  of  the  law.* 

These  principles  must  be  cautiously  applied,  and  can  not  be  extended  to 
the  point  where,  under  the  guise  of  construction,  the  power  of  legislation  is 
attempted  to  be  exercised.  The  cases  in  which  the  letter  of  the  statute  is  not 
deemed  controUing  "are  few  and  exceptional,  and  only  arise  where  there  are 
cogent  reasons  for  beheving  that  the  letter  does  not  fully  and  accurately  disclose 
the  intent.  No  mere  omission,  no  mere  failure  to  provide  for  contingencies, 
which  it  may  seem  wise  to  have  specifically  provided  for,  justify  any  judicial 
addition  to  the  language  of  the  statute."  ^  "  It  is  not  for  the  courts  to  tamper 
with  the  words  of  a  statute,  or  by  a  stramed  construction  of  legislative  enact- 
ments, the  language  of  which  is  clear  and  explicit,  to  accomplish  results  not 
contemplated  by  Congress."^  Where  a  provision  is  omitted  from  a  statute, 
either  by  design,  mistake,  or  oversight  of  the  legislature,  the  courts  have  no 
power  to  supply  it  where  the  language  used  is  clear  and  unambiguous.*  "  It  is 
better  to  submit  to  a  temporary  inconvenience  than  to  set  the  laws  all  afloat  by 
laying  down  a  canon  of  construction  which  leaves  the  plain  words  and  seeks  to 
speU  out,  or  guess  at,  the  supposed  intent  of  the  legislature,  contrary  or  supple- 
mentary to  that  which  is  clearly  embodied  in  the  words  it  has  used."  ^  The 
principle  that  a  thing  may  be  within  the  intent  of  the  law,  though  without  the 
letter,  does  not  warrant  includmg  a  thing  which  has  been  omitted  by  Congress, 
because  of  the  conjecture  that,  had  the  case  been  foreseen.  Congress  would 
have  embraced  it  within  the  intent.^  Accordingly,  where  the  law  empowered 
the  Secretary  of  the  Navy  to  remit  or  mitigate  the  sentence  imposed  by  any 
Tiaval  court-martial,  although  the  statute  was  plainly  intended  to  confer  upon 
the  Secretary  authority  over  all  sentences  imposed  by  courts-martial  upon 
persons  in  the  naval  service  under  his  jurisdiction,  it  was  decided  that  he  was 
without  authority  to  remit  or  mitigate  the  sentence  imposed  by  an  Army 
court-martial  upon  an  enlisted  man  of  the  Marine  Corps  while  serving  with 
the  Army  but  restored  to  naval  jurisdiction  prior  to  execution  of  the  sentence; 
and  that  action  of  the  President  in  such  case  was  necessary.' 

With  reference  to  criminal  cases,  it  has  been  held  that  "  it  would  be  danger- 
ous, indeed,  to  carry  the  principle  that  a  case  which  is  within  the  reason  or 
mischief  of  a  statute  is  within  its  provisions,  so  far  as  to  punish  a  crime  not 
enumerated  in  the  statute  because  it  is  of  equal  atrocity  or  of  kindred  character 
with  those  which  are  enumerated."* 

1  U.  S.  V.  Fahrenholt  (206  U.  S.,  226). 

2  U.  S.  V.  Goldenburg  (168  U.  S.,  103). 

3  Bate  Refrigerating  Co.  v.  Sulzberger  (157  U.  S.,  37). 

<  Folsom  V.  U.  S.  (160  U.  S.,  127);  Hobbs  v.  McLean  (117  U.  S  ,  567,  579);  Leavenworth,  etc.,  R.  Co.  v.  U.  S.  (92 
U.  S.,  733,  751);  Kennedy  v.  Gibson  (8  Wall.,  498,  506);  U.  S.  v.  Union  Pac.  R.  Co.  (91  U.  S.,  72,  85);  26  Op.  Atty.  Gen., 
537;  see  also  9  Op.  Atty.  Gen.,  50;  13  Op.  Atty.  Gen.,  460. 

6  Merritt  v.  Welsh  (104  U.  S.,  702). 

6  27  0p.  Atty.  Gen.,  136. 

'  File  26267—127,  Nov.  10,  1914. 

8  U,  S.  V.  Wiltberger  (5  Wheat.,  76, 96). 


13 


(VI,  C.)  INTRODUCTION.  Statutory  Construction. 

C.    HOW   LEGISLATIVE    INTENT    IS    TO    BE    ASCERTAINED. 

As  already  stated,  the  legislative  intent  is  to  be  ascertained  from  the  law 
itself,  whore  the  language  is  clear  and  unambiguous.  In  cases  where  the  lan- 
guage used  is  ambiguous,  and  only  in  such  cases,  resort  may  be  had  to  extrinsic 
aids  to  interpretation,  which  will  be  briefly  considered  below,  under  Section 
VI,  D,  "Aids  to  interpretation  of  ambiguous  statutes."  First  as  to  the  princi- 
ples which  govern  in  ascertaining  the  legislative  intent  from  the  law  itself: 

1.  Law  must  be  coiistrued  as  a  whole. — "  In  the  exposition  of  statutes 
the  esta])hshed  rule  is  that  the  intention  of  the  lawTiiaker  is  to  be  deduced  from 
a  view  of  the  whole  statute,  and  every  material  part  of  the  same."  ^  "The 
whole  statute  must  be  examined.  Single  sentences  and  smgle  provisions  are 
not  to  be  selected  and  construed  by  themselves,  but  the  whole  must  be  taken 
together."  ^  "Every  part  of  a  statute  must  be  construed  in  connection  with 
the  whole,  so  as  to  make  aU  the  parts  harmonious  if  possible,  and  to  give  meaning 
to  each."  ^  It  may  be  necessary  to  consider  every  par.t  of  an  act  in  its  effect 
upon  other  parts  in  order  to  arrive  at  a  construction  that  will  be  effective.^ 
In  case  of  repugnancy  between  two  provisions  in  a  statute,  the  one  general 
and  the  other  specific,  the  latter  will  prevail,  unless  a  contrary  intent  is  plain.^ 

2.  Effect  to  be  given  to  every  word. — Every  word  used  in  a  statute  is 
presumed  to  have  a  separate  and  independent  meaning  of  its  own.^  Congress 
is  not  to  be  presumed  to  have  used  words  for  no  purpose.''  Accordingly  words 
can  not  be  construed  as  redundant  and  rejected  as  surplusage  where  it  is  pos- 
sible to  give  them  full  effect,*  but  may  be  rejected  when  they  can  not  be  given 
effect.^  And  this  rule  requires  that  effect  be  given  to  every  word  of  a  penal 
statute. ^°  "  It  is  a  cardinal  rule  of  statutory  construction  that  significance  and 
effect  shall  if  possible  be  accorded  to  every  word."  ^^  But  where,  from  excess 
of  caution  or  in  accordance  with  custom,  several  words  of  similar  import  have 
been  used  in  the  same  connection  in  a  statute,  as  is  frequently  the  case,  it 
is  not  required  that  some  new  meaning  be  given  to  the  superfluous  words, 
the  general  rule  being  inapplicable  under  such  circumstances. ^^  And  it  is  not 
necessary  to  give  every  word  its  exact  signification  as  an  independent  word, 
if  that  signification  be  inconsistent  with  other  words  and  other  parts  of  the 
statute,  the  first  and  controlhng  rule  being  to  ascertain  what  the  legislature 
intended,  as  indicated  by  all  the  provisions  on  the  same  subject  matter,  har- 
moniously construed  as  far  as  possible;  and  accordingly  single  words  must 
sometimes  yield  their  restricted  meaning  to  a  more  general  signification  and 
greater  comprehensiveness,  if  necessary  to  carry  out  the  manifest  wiU  of  the 
lawmakuig  power.  ^^ 

3.  Words  presumed  to  have  been  used  in  their  ordinary  sense. — 
Where  the  language  of  a  statute  is  free  from  ambiguity,  words  must  be  given 
their  usually  accepted  meaning.^^     "The  popular  or  received  miport  of  words 

1  Kohlsaat  v.  Murphy  (96  U.  S.,  153,  159).  8  Stephens  v.  Cherokee  Nation  (174  U.  S.,  445). 

2  PoUard  v.  BaUey  (20  Wall.,  520,  525).  »  21  Op.  Atty.  Gen.,  286,  288. 

3  Washington  Market  Co.  v.  Hoflman  (101  U.  S.,  112,  115).       "U.S.  v.  Gooding  (12  Wheat^  460,  477). 

*  File  111:50-26,  page  5,  July  31,  1909.  "  Washington  Market  Co.  v.  Hoffman  (101  U.  S.,  115). 

6  36  Cyc,  1130.  12  u.  S.  v.  Bassett  (2  Story,  404;  24  Fed.  Cas.  No.  14539). 

6  Murphy  v.  Utter  (186  U.  S.,  95,  HI).  »3  Farden  v.  U.  S.  (13  Ct.  Cls.,  347). 

'Piatt  V.  Union  Pac.  R.  Co.  (99  U.  S.,  48,  58)  i«  Merchants  Nat.  Bank  v.  U.  S.  (42  Ct.  Cls.,  6). 


u 


(VI,  C.)  INTRODUCTION.  Statutory  Construction. 

furnishes  the  general  rule  for  the  interpretation  of  public  laws  as  well  as  of  pri- 
vate and  social  transactions."  ^     Wlien  a  statute  uses  a  technical  term  which 
is  known  and  its  meaning  clearly  ascertained  by  the  common  or  civil  law,  from 
whichever  it  is  taken,  it  is  proper  to  refer  to  that  law  for  its  meaning.^     The 
term  "beyond  seas"  in  a  statute  must  receive  the  legal  interpretation  usually 
given  to  it,  unless  there  be  an  indication  to  the  contrary;  ^  and  the  word  "enlist- 
ment,"  where  used  in  its  technical  significance  in  an  act  relating  to  the  Army, 
does  not  apply  to  a  cadet,  who  is  not  an  enlisted  man.^     Where  the  legislature 
makes  use  of  a  word  having  a  well-defined  technical  meaning,  it  is  presumed  to 
use  the  word  in  its  technical  sense  in  the  absence  of  an  indication  to  the  contrary 
in  the  statute.*     The  general  rule  is  that  the  same  word  is  used  with  the  same 
meaning  wherever  it  occurs  in  an  act;  ^  but  where  necessary  to  harmonize  the 
different  provisions  of  a  statute,  a  different  meaning  may  be  given  to  the  same 
word   in  different  parts  of  a  statute.®     The  same  words   as  used  in  different 
statutes  may  have  different  meanmgs;  but  the  presumption  is  otherwise.^     "A 
word  is  not  a  crystal,  transparent  and  unchanged,  it  is  the  skin  of  a  living 
thought  and  may  vary  greatly  m  color  and  content  according  to  the  circum- 
stances and  the  time  in  which  it  is  used."* 

4.  General  words  may  be  restricted  by  context. — "There  is  no 
mode  by  which  the  meaning  affixed  to  any  word  or  sentence,  by  a  deliberative 
body,  can  be  so  well  ascertained  as  by  comparing  it  with  the  words  and  sen- 
tences with  which  it  stands  comiected."  ^  This  principle  is  known  as  "noscitur 
a  sociis,"  which  means  the  interpretation  of  a  word  or  phrase  by  reference  to 
other  words  with  which  it  is  associated. '° 

The  most  common  application  of  this  principle  occurs  where  several  classes 
of  persons  or  things  are  specifically  enumerated  in  a  statute,  and  immediately 
following  and  classed  with  such  enumeration  the  clause  embraces  ''other" 
persons  or  things,  as  is  done,  for  example,  throughout  the  Articles  for  the 
Government  of  the  Navy."  In  such  cases  the  particular  application  of  this 
principle  is  known  as  the  ''ejusdem  generis"  rule,  in  accordance  with  which 
the  word  "other"  will  generally  be  read  as  "other  such  hke,"  and  persons  and 
things  therein  comprised  thus  restricted  to  the  same  genus  or  class  as  those 
specifically  enumerated  instead  of  being  extended  to  include  such  as  are  of  a 
superior  or  different  quality  or  class. ^^  Thus,  in  an  early  case,  it  was  held  by 
the  Supreme  Court  that  the  words  " other  place"  appearing  in  the  phrase  "  any 
other  place  or  district  of  country,  under  the  sole  and  exclusive  jurisdiction  of 
the  United  States,"  did  not  include  a  vessel  of  the  Navy,  which  was  not  of 
similar  character  with  the  places  previously  enumerated  which  were  "objects 

'  Maillaxd  v.  Lawrence  (16  How.,  251,  261). 

2  Irwin  V.  U.  S.  (38  Ct.  Cls.,  87). 

3  Babbitt's  case  (16  Ct.  Cls.,  202);  and  see  15  Op.  Atty.  Gen.,  645;  28  Op.  Atty.  Gen.,  87. 
<  Ilawley  v.  Diller  (178  U.  S.,  476,  488). 

5  In  re  Jackson  (40  Fed.  Rep.,  374);  Babbitt's  case  (16  Ct.  CIs.,  212). 

6  Cherokee  Nation  v.  Georgia  (5  Pet.,  1, 19;  compare  U.  S.  v.  St.  Anthony  R.  Co.,  192  U.  S.,  524). 
'  File  9736-18,  pige  2,  "Addenda"  ;  Greenleaf  v.  Goodrich  (101  U.  S.,  278,  281). 

8  Towne  v.  Eisner,  245  U.  S.,  418,  425;  31  Op.  Atty.  Gen.,  279;  Lamar  v.  V.  S.,  240  U.  S.,  60,  65;  see  also  Hendee  v. 
U.  S.,  124  U.  S.,  309,  and  U.  S.  v.  Mouat,  124  U.  S.,  303. 

9  Wheaton  v.  Peters  (8  Pet.,  591,  661). 

10  Virginia  v.  Tennessee  (148  U.  S., 503, 519);  U.  S.  v.  Rodgers  (150 U.  S.,  249,  278);  Stoutenburgh  v.  Hennick  (129 U.S., 
141, 147);  HoUender  v.  Magone  (149  U.  S.,  586);  American  Fur  Co.  v.  U.  S.  (2  Pet.,  358,  367);  21  Op.  Atty.  Gen.,  124. 

11  Section  1624,  Revised  Statutes;  sec  C.  M.  O.  No.  21,  1910,  p.  10. 

"  File  24482-34,  May  1,  1911,  page  14;  United  States  v.  United  Verde  Copper  Co.  (196  U.  S.,  207);  Merchants  Nat. 
Banki;.  U.  S.  (42  Ct.  Cls.,  6). 

15 


(VI,  C.)  INTRODUCTION.  Statutory  Construction. 

ill  their  nature  fixed  and  territorial";  and  accordingly,  that  under  the  statutes 
then  in  force  a  Federal  court  did  not  have  jurisdiction  to  punish  the  crime  of 
murder  committed  on  board  a  war  vessel  of  the  United  States  in  Boston  harbor.^ 
This  prmciple,  like  all  others  relating  to  the  interpretation  and  construc- 
tion of  statutes,  is  not  inflexible;  its  purpose  is  to  assist  in  arriving  at  the 
legislative  intent,  and  where  the  application  of  the  principle  would  fail  to 
accomplish  this  purpose  it  is  rejected,  and  general  words  may  be  given  a 
more  comprehensive  effect  than  specific  where  such  appears  to  be  the  mten- 
tion  of  the  legislature.^ 

5.  Interpretation  of  miscellaneous  words. — ^The  Kevised  Statutes 
contains  definitions  of  various  words  which  may  be  apphed  in  interpreting  the 
provisions  of  Federal  statutes.  For  example,  it  is  provided  that  the  word 
"person"  may  include  partnerships  and  corporations;  that  the  plural  number 
may  include  the  singular,  and  vice  versa;  that  the  mascufine  gender  may  include 
females;  that  reference  to  any  officer  may  include  any  pereon  authorized  by 
law  to  perform  the  duties  of  such  office,  etc.^ 

In  addition,  under  judicial  decisions  the  word  "or"  may  be  construed  as 
"and";*  and  the  word  "and"  may  be  construed  as  "or";^  and  even  in  a 
penal  statute,  the  words  "fine  or  imprisonment"  may  under  certam  circum- 
stances be  read  "fine  and  imprisonment."  ^  But  these  words  are  not  to  be 
construed  otherwise  than  according  to  their  ordinary  and  well-understood 
meaning  except  where  it  is  necessary  to  effectuate  the  plain  intent  of  the  law.' 

As  to  the  interpretation  of  the  words  "may"  and  "shall,"  see  below  (VI, 
E,  5),  "Mandatory  and  directory  statutes." 

6.  The  expression  of  one  thing  is  the  exclusion  of  another. — 
Another  rule  of  value  in  interpreting  statutes  is  that  where  certain  classes  of 
persons  or  things  are  specifically  included  or  specifically  excepted  in  a  statute, 
this  is  to  be  understood  as  meaning  that  the  legislature  did  not  intend  to  include 
or  except  any  class  of  persons  or  thmgs  not  specifically  mentioned.  The  rule 
is  known  in  law  as  "expressio  unius  est  exclusio  alterius,"  which  means  that 
"the  expression  of  one  thing  is  the  exclusion  of  another."  This  rule  is  also 
subject  to  the  paramount  consideration  of  effectuating  the  legislative  intent, 
and  was  accordingly  not  appUed  in  the  case  of  the  Holy  Trinity  Church  akeady 
noted.^ 

7.  A  prospective  operation  is  to  be  given  to  a  statute  unless  the 
legislative  intent  to  the  contrary  is  expressed  in  unambiguous  terms  or  is  clearly 
imphed.^  Thus  a  statute  intended,  as  indicated  by  its  title,  "to  reorganize 
and  increase  the  efficiency  of  the  personnel  of  the  Navy,"  should  not  be  con- 

1  U.  S.  V.  Bevans  (3  Wheat.,  336,  390) 

s  Cutler  V.  Kouns  (110  U.  S.,  720,  728);  U.  S.  v.  Briggs  (9  How.,  351);  Faw  v.  Marsteller  (2  Cranch,  10);  Stevens  v.  U.  S. 
(41  Ct.  Cls.  344),  noted  under  section  284,  Revised  Statutes;  see  also  30  Op.  Atty.  Gen.,  294, 295,  and  authorities  there  cited. 

•  See  sections  1  to  6,  Revised  Statutes. 

<  Union  Ins.  Co.  v.  U.  S.  (6  Wall.,  763);  Converse  v.  U.  S.  (26  Ct.  Cls.,  6). 

6  18  Op.  Atty.  Gen.,  540;  Long  v.  Palmer  (16  Pet.,  69). 

'Carter  v.  McClaughry  (183  U.  S.,  392,  393);  see  also  U.  S.  v.  Shawls  (2  Paine  166,  28  Fed.  Cas.  No.  16448);  Rioe  v. 
U.S.  (53  Fed.  Rep.,  912). 

'  U.  S.  V.  Haun  (26  Fed.  Cas.  No.  15329);  18  Op.  Atty.  Gen.,  540;  Rice  v.  U.  S.  (53  Fed.  Rep.,  912). 

8  See  above,  section  VI,  B,  6. 

«  Jasper  v.  U.  S.  (43 Ct.  Cls., 368,  371,  citing  U.  S.  v.  Heth,  3  Cranch,  399,  413;  Chew  Heong  v.  U.  S.,  112  U.  S.,  536,  559; 
White  w.  U.  S.,  191  U.  S.,  545;  see  also  Reynolds  v.  McArthur,  2  Pet.434;  19  Comp.  Dec,  487;  U.  S.  v.  Burr.,  159  U.  S.,  82, 
Warren  v.  Etna  Ins.  Co., 29  Fed.  Cas.  No.  17206;  Auffm'ordtv.  Rasin,102U.S.,622;  15  Op.  Atty.  Gen.,  222, 259;  9  Op.  Atty. 
Gem.,  437). 

16 


statutory  Construction.  INTRODUCTION.  (VI,  D.) 

strued  so  as  to  give  a  gratuity  to  certain  officers  for  past  services.'  "Even 
though  the  words  of  a  statute  are  broad  enough  in  their  literal  extent  to  com- 
prehend existing  cases,  they  must  yet  be  construed  as  applicable  only  to  cases 
that  may  hereafter  arise,  unless  the  language  employed  expresses  a  contrary 
intention  in  unequivocal  terms. "^ 

8.  Controlling  purpose  of  statute  prevails  in  its  construction. — 
A  secondary  purpose,  which  from  the  nature  of  things  would  defeat  the  con- 
trolUng  purpose  of  a  statute,  will  not  be  ascribed  to  Congress,  especially  when 
it  rests  on  mere  implication.^  The  specific  intent  of  the  legislature  is  to  be 
found  in  the  leading  provisions  of  a  statute.^  Where  the  principal  purpose 
of  a  statute  is  to  provide  compensation  to  a  person  damaged  by  the  wrongful 
act  of  another,  and  not  to  punish  the  wrongdoer,  it  is  not  to  be  construed  as 
penal.^  Similarly,  where  a  statute  was  intended  primarily  to  increase  the 
efficiency  of  the  Navy,  and  incidentally  to  rid  the  service  of  officers  unable  to 
qualify  for  promotion  because  of  their  own  misconduct  by  providing  that  such 
officers  should  be  discharged  with  not  more  than  one  year's  pay,  the  controlling 
purpose  of  the  law  should  not  be  defeated  by  giving  it  a  strict  construction 
against  the  Government  and  in  favor  of  a  particular  officer.^ 

D.    AIDS    TO    INTERPRETATION    OF   AMBIGUOUS    STATUTES. 

Where  the  language  of  a  statute  is  ambiguous  or  susceptible  of  two  mean- 
ings, certain  established  rules  may  be  availed  of  in  endeavoring  to  arrive  at 
the  legislative  intent.  But  m  connection  with  the  application  of  all  such  rules 
it  must  be  borne  in  mind  that  their  purpose  is  to  solve  real  and  not  fanciful 
ambiguities,  and  that  they  may  not  be  invoked  as  a  means  of  escape  from  the 
plain  language  of  a  statute  or  for  the  purpose  of  raising  a  doubt  where  none 
in  fact  exists. 

1.  The  title  of  a  statute,  although  not  properly  a  part  of  the  law,  may 
be  resorted  to  in  case  of  doubt  as  a  source  of  information  in  interpreting  lan- 
guage used  in  the  act.  Thus  the  word  "mihtary"  in  a  broad  sense  may  refer 
both  to  the  land  and  naval  forces;  but  where  a  statute  provided  for  the  arrest 
of  deserters  from  the  military  service,  the  Attorney  General  held  that  it  could 
not  be  construed  to  include  deserters  from  the  Navy,  because  the  title  of  the 
act  showed  plainly  that  the  law  was  intended  to  apply  only  to  the  Army,  and 
hence  that  the  word  "military"  was  used  in  its  more  restricted  sense.'  Simi- 
larly the  title  of  the  Navy  personnel  act  of  March  3,  1899,  was  referred  to  by 
the  courts  as  indicating  that  certain  provisions  contained  in  the  act  were 
intended  to  operate  prospectively  only  and  not  to  give  a  gratuity  to  certain 
officers  for  past  services.^  But  where  the  language  of  an  act  is  plain,  it  may 
be  applied  to  cases  not  comprehended  by  its  title;  as,  for  example,  an  act 

1  White's  case  (37  Ct.  Cls.,  365;  191  U.  S.,  545;  see  also  17  Op.  Atty.  Gen.,  557);  U.  S.  v.  Moore  (95  U.  S.,  762). 

2  Twenty  Per  Cent  cases  (20  Wall.,  179,  187);  see  also  file  8627-189,  May  12, 1915;  but  see  7  Comp.  Dec,  844,  noted 
under  section  1407,  Revised  Statutes. 

»  Denver  Pac.  R.  Co.  v.  U.  S.  (12  Ct.  Cls.,  237,  259,  681). 

<  The  Paquete  Habana  (175  U.  S.,  677,  681). 

s  Brady  v.  Daly  (175  U.  S.,  148);  Johnson  v.  Southern  Pac.  Co.  (196  U.  S.,  1). 

»  See  note  to  act  Aug.  5,  1882,  22  Stat.,  286;  file  26260—1392,  June  29, 1911;  see  also  Street  v.  U.  S.  (133  U.  S.,  300). 

'  File  5621,  Nov.  17, 1906.  [The  arrest  of  deserters  from  the  naval  service  is  now  specifically  provided  for  by  act 
Feb.  16, 1909,  sec.  15,  35  Stat.,  622.]  As  to  interpretation  of  the  word  "military,"  see  file  26509-201:1,  May  26,  1917;  24 
Comp.  Dec,  788. 

8  White's  case  (37  Ct.  Cls.,  365,  affirmed,  191  U.  S.,  550);  see  also  Holy  Trinity  Churcli  v.  U.  S.  (143  U.  S.,  467);  Robinson 
V.  U.  S.  (42  ct.  Cls.,  52);  19  Op.  Atty.  Gen.  ,616. 

IT 


(VI,  D.)  INTROD  UCTION.  Statutory  Construction. 

wliich  by  its  title  applied  to  "American  seamen,"  but  which  was  nevertheless 
held  to  extend  to  fi)reio;nei"s.'  And  even  when  the  meaning  of  a  statute  is 
doubtful  it  has  been  said  that  tlie  title  lias  little  weight  in  its  construction. ^ 

2.  Marginal  notes  in  Revised  Statutes. — As  already  explained, 
marginal  notes  are  incorporated  in  the  Revised  Statutes  in  accordance  with 
instructions  of  Congress,  indicating  the  laws  from  which  the  different  sections 
of  the  revision  were  compiled.  It  has  been  held  that,  in  case  of  ambiguity  in 
the  language  of  the  revision,  these  notes  may  be  consulted  as  an  aid  to  con- 
struction, and  that  resort  may  be  had  to  the  original  statutes  to  which  they 
refer.' 

3.  Conditions  existing  at  the  time  the  law  was  enacted. — In  cases 
of  doubtful  construction  it  is  safe  guidance  for  a  court  to  look  into  the  con- 
ditions surrounding  the  subject  matter  of  the  legislation  at  the  time  the  act 
was  passed  and  the  situation  as  it  existed  and  as  it  was  pressed  upon  the  atten- 
tion of  Congress.*  The  court  should  endeavor  to  place  itself  as  far  as  possible 
in  the  light  that  the  legislature  enjoyed,  to  look  at  things  as  they  appeared  to 
it,  and  to  discover  the  purpose  of  the  law  from  the  language  used  in  connection 
with  attending  circumstances.  ^  "The  general  rule  is  that  laws  speak  from  the 
date  of  their  enactment,"  ®  and  they  should  accordingly  be  construed  as  of 
the  time  of  their  enactment.'^  Thus  where  Congress  authorized  the  appoint- 
ment, from  the  Navy  Dental  Reserve  Corps,  of  "dental  corps  officers  of  per- 
manent tenure,"  the  language  quoted  was  construed  to  mean  that  such  appoint- 
ments were  to  be  made  to  the  grade  of  acting  assistant  dental  surgeon,  which 
was  the  only  grade  in  the  regular  Dental  Corps  at  the  time  the  law  was  passed, 
as  the  grade  of  assistant  dental  surgeon  was  not  to  come  into  existence  until 
more  than  two  years  later. ^ 

4.  Reasons  for  the  enactment  of  the  law. — The  evil  or  mischief 
which  the  law  was  designed  to  remedy  is  also  a  proper  subject  for  consideration 
in  arriving  at  the  legislative  intent  in  case  of  doubtful  language.^  It  is  one  of 
the  oldest  and  best  recognized  principles  of  construction  that  "the  preexisting 
law  and  the  reason  and  purpose  of  the  new  enactment  are  considerations  of 
great  weight."  *"  ''There  is  no  better  way  of  discovering  its  true  meaning  when 
expressions  in  it  are  rendered  ambiguous  by  their  connection  with  other  clauses 
than  by  considering  the  necessity  for  it  and  the  causes  which  induced  its  enact- 
ment." " 

5.  Legislative  history. — In  arriving  at  the  meaning  of  a  statute  where 
the  proper  construction  is  doubtful,  it  is  always  proper  to  consider  the  history 
of  the  statute  and  the  different  steps  taken  in  the  enactment  of  the  law  as  dis- 

1  Patterson  v.  Bark  Eudora  (190  U.  S.,  169,  172,  173). 

» Hadden  ti.The  Collector  (5  WaU.,  107). 

»  Barrett  v.  U.  S.  (169  U.S.,  218,227,  22S);  U.  S.  v.  AverUl  (130  U.  S.,335, 338);  U.  S.  v.  Lacher  (134  U.  S.,626,  627);  U.  S. 
V.  Hirsch  (100  U.  S.,  33);  Hamilton  v.  Rathbone  (175  U.  S.,  414,  420);  Merchants  Nat.  Bank  v.  U.  S.  (42  Ct.  Cls.,  6);  see 
also  VI,  E,  1,  "Revised  Statutes,"  below. 

<  Clark's  case  (37  Ct.  Cls.,  60);  U.  S.  v.  Smith  (197  U.  S.,  386);  Holy  Trinity  Church  v.  U.  S.  (143  U.  S.,  457). 

5  File  26260-1392,  June  29,  1911,  p.  5;  27  Op.  Atty.  Gen.,  78;  Piatt  v.  Union  Pac.  R.Co.  (99  U.  S.,  48,63);  Dewey  v. 
U.S.  (178 U.S.,  510,  520);  HamQton  v.  Rathbone  (175  U.  S.,  414);  Holy  Trinity  Church  v.  U.  S.  (143  U.  S.,  457). 

«25  Op.  Atty.  Gen.,  299;  file  13707—38:9. 

'  Irwin  V.  U.  S.  (38  Ct.  Cls.,  87). 

8  File  13707-38: 9. 

9  Holy  Trinity  Church  v.  U.  S.  (143  U.  S.,457);  Wilson  v.  Mason  (58  Fed. Rep., 768);  29 Op.  Atty.  Gen.,344;  19  Comp» 
Dec.,  847;  file  20200-1392,  June  29,  1911;  C.  M.  O.,  4-1913,  pp.  6,  8. 

10  27  Op.  Atty.  Gen.,  78;  Hamilton  w.  Rathbone  (175  U.  S.,419);  Merchants  Nat.  Bank  u.  U.S.  (42  Ct.  Ois.,  6). 
»  Heydenfeldt  v.  Daney,  etc.,  Co.  (93  U.  S.,  634,  638). 

18 


statutory  Construction.  INTRODUCTION.  (VI,  D.) 

closed  by  the  legislative  records.^  This  includes  the  reports  of  committees  ^ 
and  the  introduction  of  amendments ;  ^  but  the  opinion  of  the  draftsman  of  the 
law  can  not  be  considered/  except  as  it  indicates  the  existing  conditions  and 
purpose  of  the  law  as  it  was  pressed  upon  the  attention  of  Congress.  ^ 

6.  Debates  in  Congress. — The  views  expressed  by  individual  Members 
of  Congress  in  the  course  of  debates  "are  not  appropriate  sources  of  informa- 
tion from  which  to  discover  the  meaning  of  the  language  of  a  statute  passed  by 
that  body  " ;  ^  the  law  as  it  passed  being  the  will  of  the  majority  of  both  Houses.^ 
"It  is  impossible  to  determine  with  certainty  what  construction  was  put  upon 
an  act  by  the  members  of  a  legislative  body  that  passed  it  by  resorting  to  the 
speeches  of  individual  members  thereof.  Those  who  did  not  speak  may  not 
have  agreed  with  those  who  did,  and  those  who  spoke  might  differ  from  each 
other."  ^  Frequently  the  arguments  of  individual  members  can  hardly  be  con- 
sidered even  as  the  dehberate  views  of  the  persons  who  made  them ;  ^ ' '  nor  have 
there  been  want  ing  illustrious  instances  of  great  minds  which,  after  they  had, 
as  legislator  or  commentators,  reposed  upon  a  short  and  hasty  opinion,  have 
deliberately  withdrawn  from  their  first  impressions  when  they  came  upon  the 
judgment  seat  to  reexamine  the  statute  or  law  in  its  full  bearings."  ^° 

But  it  has  been  held  that  ' '  the  statements  of  those  who  had  charge  of  the 
law,  made  to  the  legislative  body  passing  it,  as  to  its  meaning  and  purpose,  are 
always  competent."  "  And  debates  may  be  referred  to  for  information  as  to 
the  existmg  conditions  and  the  evil  or  mischief  which  the  law  was  intended  to 
remedy,^^  or  to  confirm  a  construction  otherwise  arrived  at  by  the  court.*^ 

7.  Prior  enactments  on  the  same  subject  may  be  consulted  in  cases 
of  doubt  in  an  effort  to  ascertain  the  legislative  intent.  Wliere  the  subject 
of  a  prior  act  is  identical  with,  and  not  merely  similar  to,  the  law  mider  consid- 
eration, the  two  acts  are  said  to  be  ''in  pari  materia"  "  and  should  be  con- 
strued together  unless  the  language  of  the  act  to  be  construed  is  plain  and  free 
of  all  uncertainty.^^ 

Several  statutes  on  the  same  general  subject,  passed  at  different  times 
by  successive  legislatures,  without  express  repeal  of  former  provisions,  should 
be  so  construed  that  all  parts  of  each  shall  retain  their  force  and  effect,  except 
where  it  is  apparent  that  by  the  later  acts  substantial  changes  were  intended. 

1  U.  S.  V.  Burr  (159  U.  S.,  78,  85);  Blake  v.  Banks  (23  Wall.,  307);  but  see  Andrews  v.  Hovey  (124  U.  S.,  716). 

2  Austin  V.  U.  S.  (25  Ct.  Cls.,  454);  Holy  Trinity  Church  v.  U.  S.  (143  U.  S.,  457,  464);  Bate  Refrigerating  Co.  v.  Sulz- 
berger (157  U.  S.,  1,  42);  Chesapeake,  etc.,  Tel.  Co.  v.  Manning  (186  U.  S.,  238,  246);  Binns  v.  U.  S.  (194  U.  S.,  486,  495); 
Dubuque,  etc.,  R.  Co.  v.  Litchfield  (23  How.,  87). 

3  27  Op.  Atty.  Gen.,  437;  file  26260-1392,  June  29, 1911;  Blake  v.  National  Banks  (23  Wall.,  307). 
<  File  24482-34,  May  1,  1911. 

6 19  Comp.  Dec,  847;  Jennison  v.  Kirk  (98  U.  S.,  460). 

6U.  S.  V.  Freight  Assn.  (166  U.  S.,  318);  27  Op.  Atty.  Gen.,  78;  9  Op.  Atty.  Gen.,  472;  compare  9  Op.  Atty.  Gen., 
438  ;  8  Op.  Atty.  Gen.,  230. 

'  Aldridge  v.  Williams  (3  How.,  23). 

8  U.  S.  V.  Trans-Missouri  Freight  Assn.  (166  U.  S.,  290,  318). 

9  Downes  v.  Bidwell  (1S2  U.  S.,  244,  254). 

10  Mitchell  v.  Great  Works  Milling,  etc.,  Co.  (2  Story,  653:  17  Fed.  Cas.  No.  9662). 

"  Ex  parte  Farley  (40  Fed.  Rep.,  69);  27  Op.  Atty.  Gen.,  78;  26  Op.  Atty.  Gen.,  254. 

12  Holy  Trinity  Church  v.  U.  S.  (143  U.  S.,  465);  American  Net  &  Twine  Co.  v.  Worthington  (141  U.  S.,  473);  U.  S. 
V.  Wilson  (58  Fed.  Rep.,  768). 

13  Hepburn  v.  Griswold  (8  Wall.,  610);  Untermeycr  v.  Frcund,  (50  Fed.  Rep.,  80);  Northern  Pac.  R.  Co.  v.  U.  S. 
(36  Fed.  Rep.,  285);  U.  S.  t).  Union  Pac.  R.  Co.,  (37  Fed. Rep.,  554);  In  re  Secy,  of  Treasury  (71  Fed.  Rep.,  513;)  In 
re  Musser  (49  Fed.  Rep.,  832);  Wilson  v.  Spaulding  (19  Fed.  Rep.,  307);  Walton  v.  U.  S.  (24  Ct.  Cls.,  380);  16  Op.  Atty. 
Gen.,  379. 

"  Louisiana  v.  Mississippi  (202  U.  S.,  1,  41);  United  Soe.  ti.  Eagle  Bank  (7  Conn.,  456,  469);  see  also  U.  S.  v.  Freeman 
(3  How.,  556). 

15  Barnes  v.  PhUadelphia,  etc.,  R.  Co.  (17  Wall.,  302). 

19 


statutory  Construction.  INTRODUCTION.  (VI,  D.) 

Incidental  clijuiges  will  not  be  imputed  unless  clearly  intended  by  the  legisla- 
tors and  within  the  scope  of  the  particidar  matters  considered  by  them.  Wliat 
is  to  be  determined  is  the  will  of  the  legislature,  and  that  will  as  expressed  in 
the  latest  enactment  is  paramount;  but  on  all  matters  in  which  the  will  of  the 
latest  legislature  has  not  been  clearly  manifested,  that  of  all  former  legislatures 
must  stand.' 

Prior  enactments  on  the  same  subject  may  be  consulted  in  order  to  ascer- 
tam  the  legislative  intent,  even  though  such  prior  acts  have  been  repealed,^ 

8.  Implied  repeals  never  favored. — "It  is  a  fundamental  and  familiar 
rule  that  a  repeal  by  implication  is  never  held  to  take  place  unless  there  is  an 
irreconcilable  repugnancy  between  the  earher  and  later  acts,  and  that  if,  by 
any  permissible  construction,  both  may  stand  and  be  enforced,  there  is  no 
such  repeal."  ^  Every  doubt  should  be  resolved  agauist  a  construction  wliich 
would  work  an  unplied  repeal,  and  it  is  not  to  be  admitted  unless  the  imphca- 
tion  is  so  clear  as  to  be  equivalent  to  an  explicit  declaration.^  "It  nmst  not 
be  supposed  that  the  legislature  intended  by  a  later  statute  to  repeal  a  prior 
one  on  the  same  subject,  unless  the  last  statute  is  so  broad  in  its  terms  and  so 
clear  and  explicit  m  its  words  as  to  show  that  it  was  intended  to  cover  the  whole 
subject,  and,  therefore,  to  displace  the  prior  statute;"^  or  "unless  its  provisions 
are  so  clearly  repugnant  as  to  imply  a  negative."  *  "Statutes  which  apparently 
conflict  with  each  other  are  to  be  reconciled,  as  far  as  may  be  on  any  fair  hy- 
pothesis;" '  "  if  both  can  exist,  the  repeal  by  implication  wiU  not  be  adjudged. "  * 

"The  general  presumption  is  that  if  a  repeal  was  mtended  it  would  have 
been  expressly  declared;  and  such  is  the  usual  practice  of  legislation."  ® 

Where  two  acts  are  in  apparent  conflict,  and  one  of  the  acts  is  general  and 
the  other  special,  the  rule  is  that  the  special  act  wiU  be  construed  as  an  excep- 
tion to  the  provisions  of  the  general,  and  both  acts  thus  given  effect  even 
though  the  special  act  be  earher  in  date.^" 

9.  Statutes  not  operative  against  the  Government. — It  is  "the 
settled  rule  of  construction  that  the  sovereign  authority  of  the  country  is  not 
bound  by  the  words  of  a  statute,  unless  named  therein,  if  the  statute  tends  to 
restrain  or  diminish  the  powers,  rights,  or  interests  of  the  sovereign;"  "  "unless 
its  language  requires  that  such  meaning  shall  be  given  to  it."  ^^  Thus  a  statute 
prohibiting  the  transportation  of  merchandise  from  one  port  in  the  United 
States  to  another  port  in  the  United  States  in  foreign  vessels  was  held  not  to 
apply  to  the  transportation  of  coal  belonging  to  the  Goveriunent  and  needed 

»  Wilcox  0.  U.  S.  (12  Ct.  Cla.,  495,  502);  Mills  v.  Scott  (99  U.  S.,  25,  28);  file  13707-38:9. 

2  Bank  v.  Collector  (3  Wall.,  495,  513);  Ex  parte  Crow  Dog  (109  U.  S.,  556,  561);  InreHohorst  (150  U.  S.,  653, 660); 
Knowlton  v.  Moore(178  U.  S.,  41). 

»  29  Op.  Atty.  Gen.,  110;  see  also  24  Op.  Atty.  Gen.,  562;  25  Op.  Atty.  Gen.,  113;  23  Op.  Atty.  Gen.,  411. 

<  Osborn  v.  Nicholson  (13  Wall.,  654,  662). 

•  Frost  V.  Wenie  (157  U.  S.,  46,  58). 

«  Welch  V.  Cook  (97  U.  S.,  541,  543);  U.  S.  v.  Gillis  (95  U.  S.,  407,  416). 

'  Deals  V.  Hale  (4  How.,  37,  51);  and  see  15  Op.  Atty.  Gen.,  639,  where  it  is  said  that  tliis  rule  must  be  applied  so  as  to 
prevent  any  unnecessary  disturbance  of  regulations  by  subsequent  statutes. 

8  Johnson  u.  Browne (205  U.S.,  309,  321);  compare  Eckloff  ».  D.  C.  (135  U.  S.,  242);  file  13707-36,  Sept. 30,  1913.  But, 
"  to  so  legislate  as  to  prevent  the  application  of  previous  legislation  is  to  repeal  the  previous  legislation  by  implication  " 
(22  Op.  Atty.  Gen.,  255,  257;  compare  32  Op.  Atty.  Gen.  476). 

»  U.  S.  V.  Cloths  (Crabbe,  370,  28  Fed.  Cas.  No.  16563);  9  Op.  Atty.  Gen.,  47. 

»»36  Cyc,  1151;  Rodgers  «;.  U.  S.  (185  U.  S.,  83);  Petri  v.  Creelman  Lumber  Co.  (199  U.  S.,  497);  U.  S.  v.  Nix  (189 
U.  S.,205). 

11  U.  S.  V.  Herron  (20  Wall.,  251,  255);  see  also  U.  S.  v.  Knight  (14  Pet.,  301);  26  Op.  Atty.  Gen.,  415;  see  also  Cook 
County  Nat.  Bank  v.  U.  S.  (107  U.  S.,  451). 
i'26  0p.  Atty.  Gen.,  417. 

20 


statutory  Construction.  INTRODUCTION.  (VI,  D.) 

for  the  use  of  the  Navy.^  But  a  tariff  act  requiring  the  payment  of  duty  on 
imports  was  held  to  apply  to  the  importation  of  coal  by  the  Government  for 
the  use  of  the  Navy,  notwithstanding  that  the  payment  of  duty  by  the  Govern- 
ment to  itself  would  amount  in  effect  merely  to  a  bookkeeping  transaction;  the 
practice  of  Congress  having  been  to  except  the  Government  specifically  from  the 
operation  of  tariff  laws,  where  such  was  the  intention,  and  the  policy  of  the  law 
being  to  encourage  American  industries.^ 

"Where  the  Government  is  not  expressly  or  by  necessary  implication 
included,  it  ought  to  be  clear  from  the  nature  of  the  mischiefs  to  be  redressed, 
or  the  language  used,  that  the  Government  itseK  was  in  contemplation  of  the 
legislature  before  a  court  of  law  would  be  authorized  to  put  such  an  inter- 
pretation upon  any  statute."^ 

10.  Objectionable  results  to  be  avoided. — The  rule  is  that  an  act  of 
Congress  must  be  construed  as  within  the  powers  conferred  upon  Congress 
unless  in  the  judgment  of  the  court  it  is  plainly  and  palpably  inconsistent  with 
the  Constitution.* 

Also,  where  the  language  used  is  susceptible  of  two  meanings,  it  should  be 
so  interpreted  as  to  avoid  absurd  results,  inconvenience,  injustice,  um-eason- 
ableness,  or  hardship.  But  it  is  only  in  the  case  of  doubt  that  such  considerations 
may  be  taken  into  account.^ 

"All  laws  which  derogate  from  the  constitutional  authority  of  the  exe- 
cutive or  judiciary,  and  all  laws  giving  special  or  unusual  powers  to  indivi- 
duals, must  be  construed  strictly  and  according  to  the  narrowest  sense  of  their 
words.  No  intention  must  in  such  cases  be  imputed  to  the  lawgiver  beyond 
what  is  clearly  expressed  in  terms  too  plain  to  be  misunderstood."^ 

11.  Construction  adopted  by  Congress.— Congress  is  presumed  to 
have  known  what  construction  has  been  placed  upon  language  used  by  it  in 
a  statute,  and  when  the  same  language  is  used  again,  in  a  subsequent  statute 
on  the  same  subject,  without  any  indication  of  a  contrary  intent,  it  should  be 
given  the  same  construction  as  it  received  in  the  former  act.''  This  rule  applies 
to  language  which  has  been  construed  in  decisions  of  the  Supreme  Court  and 
Court  of  Claims,*  and  also  to  the  construction  placed  upon  a  law  in  practice 
by  the  proper  administrative  officers,^  unless  the  circumstances  are  such  that 
Congress  could  not  be  presumed  to  have  knowledge  of  the  departmental  con- 
struction.^" 

12.  Contemporaneous  construction  by  executive  departments. — 
The  contemporaneous  construction  placed  upon  a  law  by  the  officers  charged 
with  its  administration,  where  uniform  and  long  continued,  will  be  given  great 
weight  by  the  courts  in  passing  upon  a  statute  so  construed,  and  in  case  of 

1  2G  Op.  Atty.  Gen.,  415. 

2  26  Op.  Atty.  Gen.,  466. 

3  U.  S.  V.  Hoar  (2  Mason,  314;  26  Fed.  Gas.  No.  15373);  16  Comp  Dec,  696. 

<  Boske  V.  Comingore  (177  U.  S.,  459);  see  also  Butler  v.  White  (83  Fed.  Rep.,  581);  U.  S.  v.  Mackenzie  (30  Fed.  Gas. 
No.  18313). 

'■>  See  above,  Section  VI,  B,  5. 

6  9  Op.  Atty.  Gen.,  472. 

'  Sewing  Machine  Co.'s  case  (18  Wall.,  553,  584). 

8  U.  S.  V.  GiUis  (95  U.  S.,  416);  File  26254-50,  July  1, 1908;  25  Op.  Atty.  Gen.,  309;  but  see  15  Comp.  Dec.,  47. 

9  21  Op.  Atty.  Gen.,  410;  21  Op.  Atty.  Gen.,  3.39;  21  Op.  Atty.  Gen.,  352;  15  Op.  Atty.  Gen.,  646;  28  Op.  Atty.  Gen.,  87; 
Valk  V.  U.  S.  (28  Ct.  Cls.,  241);  Jonas  v.  V.  S.  (50  Ct.  Cls. ,  281);  U.  S.  v.  Hermanos  (209  U.  S.,  337);  U.  S.  v.  Talk  (204  U.  S., 
143);  Op.  Atty.  Gen.,  Apr.  U,  1918,  file  26510-1022:12;  Schuetze  v.  U.  S.  (24  Ct.  Cls.,  299);  29  Op.  Atty.  Gen.,  436;  17 
Op.  Atty.  Gen.,  60;  20  Op.  Atty.  Gen.,  433. 

"  Dollar  Sav.  Bank  v.  U.  S.  (19  WaO.,  237). 

21 


(VI,  E.)  INTRODUCTION.  Statutory  Construction. 

(louhl.  will  1)0  controlliiin;.'  KspecirtUv  will  the  courts  look  witii  disfavor  upon 
any  sudtlcn  ohuufjjo  whoroby  parties  who  have  contracted  with  the  Govern- 
ment upon  the  faith  of  such  construction  may  be  prejudiced.-  Where  such 
construction  of  tlie  law  has  received  the  tacit  if  not  express  approval  of  Con- 
gress, the  court,  will  not  feel  at  liberty  to  disregard  it  although  the  correctness 
of  such  construction  "may  well  be  doubted."^  However,  "while  contempora- 
neous and  long-continued  departmental  construcHon  of  an  ambiguous  statute 
is  entitled  to  very  groat  weight,  it  is  quite  otherwise  where  the  statute  is  clear 
and  there  is  no  need  for  the  assistance  doi-ivod  from  that  source."* 

E.    CONSTRUCTION    OF    PARTICULAR    STATUTES. 

1.  Revised  statutes. — "A  change  of  language  in  a  revised  statute '^  will 
not  change  the  law  from  what  it  was  before,  unless  it  be  apparent  that  such 
was  the  intention  of  the  legislature."**  "The  reenacted  sections  are  to  be  given 
the  same  meaning  they  had  in  the  original  statute  unless  a  contrary  intention 
is  plainly  manifested." '  ' '  Upon  a  revision  of  statutes,  a  different  interpretation 
is  not  to  be  given,  to  them  without  some  substantial  change  of  phraseology — 
some  change  other  than  what  may  have  been  necessary  to  abbreviate  the  form 
of  the  law."^  But  "where  the  language  of  the  Revised  Statutes  is  plain  and 
unambiguous,  the  granmiatical  structure  simple  and  accurate,  and  the  meaning 
of  the  whole  intelligible  and  obvious,  a  court  is  not  at  liberty  by  construction 
to  reproduce  the  law  as  it  stood  before  the  revision.  Whatever  palpable  modifi- 
cations, alterations,  or  changes  of  preexisting  laws  may  be  found  in  the  Revised 
Statutes  are  as  much  in  force  as  any  of  these  provisions."  ® 

2.  Appropriation  acts. — The  general  rule  of  law  is  that  when  Congress 
makes  a  specific  appropriation  for  any  particular  purpose,  no  more  shall  be 
expended  lor  that  purpose  than  is  thus  appropriated;  and  if  a  general  appro- 
priation applicable  to  the  same  purpose  would  otherwise  be  available  to  meet 
the  same  expenditure,  the  specific  appropriation  operates  to  repeal  in  part  or 
supersede  the  general  appropriation  and  render  its  use  for  the  specific  purpose 
illegal.^" 

The  rule  that  a  specific  appropriation  is  exclusive,  and  that  another  general 
appropriation  is  not  available  for  the  same  purpose,  is  a  rule  of  administration 

>  Brown  v.  V.  S.  (n3  V.  S.,  568,  571);  U.  S.  v.  Moore  (95  U.  S.,  760);  U.  S.  v.  Johnston  (124  U.  S.,  236);  Heath  v.  Wal- 
lace (138  U.  S.,  582);  8  Op.  Atty.  Gen.,  198;  U,  S.  v.  Finnel  (185  U.  S.,  236);  Merchants  Nat.  Bank  v.  U.  S.  (42Ct.  Cls.,6), 
Plummer  v.  U.  S.  (224  U.  S.,  137).  "  It  is  not  so  important  that  the  construction  of  a  statute  as  doubtful  as  this  be 
exactly  what  Congress  intended,  as  that  a  construction,  acted  on  for  20  years,  should  be  upheld"  (20  Op.  Atty.  Gen., 
362).  "When  an  act  of  Congress  has,  by  actual  decision  or  by  continued  usage  and  practice,  received  a  eonstmction  at 
the  proper  department  and  that  construction  has  been  acted  on  for  a  succession  of  years,  it  must  be  a  strong  and  pal- 
pable case  of  error  and  injustice  that  would  justify  a  change  in  the  interprclation  to  be  given  to  it  "  (2  Op.  Atty.  Gen.; 
558).  ''The  ollicers  concerned  are  usually  alile  men  and  masters  of  the  subject.  Not  unfrequently  they  are  the  drafts- 
men of  the  laws  they  arc  afterwards  called  upon  to  interpret"  (U.  S.  v.  Moore,  96  U.  S.,  763).  Schell's  Exs.  v.  Fauche 
(138  U.  S.,  572);  20  Op.  Atty.  Gen.,  436;  10  Op.  Atty.  Gen.,  296;  compare  17  Op.  Atty.  Gen.,  119. 

2  U.  S.  V.  Ala.  R.  Co.  (142  U.  S.,  621);  see  also  20  Comp.  Dec.,  182;  Comp.  Digest,  pp.  295,  296;  Thurber  v.  U.  S.  (40 
Ct.  Cls.,  489);  Nelson  v.  U.  S.  (41  Ct.  Cls.,  163);  I'lummer  v.  V.  S.  (224  V.  S.,  137,  140,  143). 

3  Garlinger  v.  U.  S.  (30  Ct.  Cls.,  477).  For  further  citation  of  cases  see  11  Enc.  U.  S.  Rep.,  138-143;  and  see  1  Fed  Stat. 
Ann.  (2d  ed.),  78-84;  20  Op.  Atty.  Gen.,  436. 

<  29  Op.  Atty.  Gen.,  298. 

'•>  This  refers  to  any  statute  which  has  been  revised  by  a  subsequent  enactment,  and  is  not  limited  to  "  The  Revised 
Statutes  of  the  United  States." 

•  Stewart  v.  Kahn  (11  Wall.,  493,  502). 

'  U.  S.  V.  Le  Bris  (121  U.  S.,  278,  280);  see  also  "Marginal  notes  in  Revised  Statutes,"  sec.  VI,  D,  2,  above. 
8  McDonald  v.  Ilovey  (110  U.  S.,  619,  629). 
»  Bowen  v.  U.  S.  (14  Ct.  Cls.,  162;  100  U.  S.,  508). 
10  27  Op.  Atty.  Gen.,  30,  34. 

22 


statutory  Construction.  INTRODUCTION.  (VI,  E.) 

firmly  established  by  the  accountmg  branch  of  the  Government ;  but  there  is 
no  such  statutory  limitation  on  the  use  of  appropriations.  While  this  rule  is 
a  proper  one,  it  may  be  remarked  of  it,  first,  that  it  operates  within  a  narrow 
range;  second,  that  the  Comptroller  recognizes  that  two  appropriations  may 
sometimes  be  available — ''cumulative"  appropriations,  as  they  are  called — 
and,  finally,  that  the  Comptroller  has  noticed  certain  reasonable  limits  to  the 
appUcability  of  the  general  rule  m  order  to  accomplish  the  evident  purpose  of 
Congress.  ^ 

No  clause,  phrase,  or  section  of  an  appropriation  act  ought  to  be  construed 
as  permanent  legislation  unless  such  words  are  used  therein  as  make  that  pur- 
pose clear.2  "Annually,"  "hereafter,"  and  similar  words  in  an  appropriation 
act  indicate  permanent  legislation.^  Permanent  legislation  contained  in  an 
appropriation  act  becomes  effective,  where  not  otherwise  specified,  imme- 
diately upon  approval  of  the  act.^ 

3.  Penal  laws. — The  general  rule  is  that  penal  statutes  are  to  be  strictly 
construed,  which  means  in  effect  that  the  language  is  not  to  be  extended  so  as 
to  include  persons  or  things  not  -clearly  withm  its  terms.^  But  in  construing 
penal  laws  as  all  others  the  whole  purpose  is  to  effectuate  the  legislative  intent 
if  possible;  and  therefore  it  is  settled  that  the  rule  of  strict  construction  does 
not  require  that  the  purpose  be  ignored  or  defeated;  it  merely  means  that 
cases  must  not  be  brought  withm  the  provisions  of  the  statute  that  are  not 
clearly  embraced  by  it.  On  the  other  hand,  a  narrow,  technical,  or  forced 
construction  of  words  is  not  to  be  adopted  so  as  to  exclude  cases  that  are 
obviously  witliin  its  provisions.*  The  words  of  a  penal  statute  are  to  be  given 
their  fuU  meaning;  ^  and  effect  is  to  be  given  to  every  word  used  if  it  can  be 
done  without  violating  the  obvious  intention  of  the  legislature.^ 

"While  we  are  bound  to  give  the  person  accused  the  benefit  of  every 
statutory  provision,  we  are  not  bound  to  import  words  into  the  statute  which 
are  not  found  there."  ^  "In  expounding  a  penal  statute  the  court  wiU  not 
extend  it  beyond  the  plain  meaning  of  its  words,"  ^°  but  the  rule  of  strict  con- 
struction is  not  violated  by  giving  to  words  the  more  extended  of  two  meanings 
where  such  construction  best  harmonizes  with  the  context  and  most  fully  pro- 
motes the  pohcy  and  objects  of  the  legislation." 

1  26  Op.  Atty.  Gen.,  81,  citing  3  Comp.  Dec.,  71;  6  Comp.  Dec.,  124;  7  Comp.  Dec.,  665;  9  Comp.  Dec.,  259;  10  Comp. 
Dec.,  655;  12  Comp.  Dec,  61;  7  Comp.  Dec,  142;  4  Comp.  Dec,  121;  1  Comp.  Dec,  357;  2  Comp.  Dec,  59;  8  Comp.  Dec, 
685;  10  Comp.  Dec,  832. 

2  27  Op.  Atty.  Gen.,  108;  but  see  7  Op.  Atty.  Gen.,  306.  Vulte's  Case  (47  Ct.  Cls.,  324,  327;  233  U.  S.,  509,  514);  file 
24501-26,  July  11,  1911. 

3  U.  S.  V.  Jarvis  (26  Fed.  Cas.  No.  15468);  Comp.  Dec.  May  28, 1908  (87  S.  and  A.  Memo.  ,716). 

«  7  Op.  Atty.  Gen.,  306;  Comp.  Dec,  May  28,  1908  (87  S.  and  A.  Memo.,  716);  Chance  v.  U.  S.  (38  Ct.  Cls.,  75);  see 
also  Arnold  v.  U  S.  (9  Cranch,  104,  119);  14  Op.  Atty.  Gen.,  542;  14  Op.  Atty.  Gen.,  681;  10  Comp.  Dec,  281;  12  Comp. 
Dec,  306;  13  Comp.  Dec,  429;  14  Comp.  Dec,  607;  U.  S.  v.  Ewing  (140  U.  S.,  143);  file  28500-54,  March  5,  1915;  file 
26254-1729,  Mar.  6,  1915;  file  26254-1729:  1,  Ckimp.  Dec,  Mar.  10,  1915;  file  5942-192,  Mar.  12,  1915;  and  see  30  Op. 
Atty.  Gen.,  334;  22  Comp.  Dec,  640;  5  Comp.  Dec,  782;  file  5460-70,  Mar.  22,  1915;  26253-364:  1,  Mar.  23,  1915;  27  Op. 
Atty.  Gen.,  552;  file  9644-55,  Mar.  22,  1919. 

'-  U.  S.  V.  Lacher  (134  U.  S.,  624). 

6  Northern  Securities  Co.  v.  U.  S.  (193  U.  S.,  197, 358);  U.  S.  v.  Wfltberger  (5  Wheat.,  76);  U.  S.  v.  Palmer  (3  Wheat., 610, 
629);  The  Emily  (9  Wheat.,  381,  388). 

'  U.  S.  V.  Hartwell  (6  Wall.,  385,  386). 

8  U.  S.  V.  Gooding  (12  Wheat.,  4G0,  477);  see  file  26260-1392,  June  29, 1911. 

9  Grin  v.  Shine  (187  U.  S.,  181,  186). 

">  U.  S.  V.  Morris  (14  Pet.,  464,  475);  Northern  Securities  Co.  v.  U.  S.  (193  U.  S.,  197,  358);  U.  S.  v.  Wiltberger,  (5 
Wheat.,  76,  95). 

11  U.  S.  ».  Hartwell  (6  WaU.,  385);  U.  S.  v.  Winn  (3  Sumn.,  209,  28  Fed.  Cas.  No.  16740). 

23 


(VI,  E.)  INTRODUCTION.  Statutory  Construction. 

4.  Remedial  statutes  are  to  l)c  liherally  construod  so  as  to  accomplish 
the  beueficial  })iirpose  of  the  legislature  to  the  fullest  extent  consistent  with 
the  language  of  the  law; '  but  a  statute  is  not  to  be  so  hberally  construed  as 
to  violate  its  language.^ 

5.  Mandatory  and  directory  statutes. — The  cjuestion  whether  or  not 
a  statute  is  mandatory  or  directory  depends  upon  the  intention  of  the  legisla- 
ture, to  be  ascertained  from  a  consideration  of  the  entire  act,  its  nature,  its 
object,  and  the  consequences  that  would  result  from  construing  it  one  way  or 
the  other.^ 

"It  is  well  settled  that  'may,'  in  any  statute,  is  to  be  construed  as  equivalent 
to  'shall'  or  'must'  when  the  public  interests  or  rights  are  concerned  and  when 
the  public  or  third  persons  have  a  right  de  jure  [in  law]  to  claim  that  the  power 
granted  shall  be  exercised."  * 

''The  general  rule  is  that,  where  Congress  confers  a  power  upon  an  executive 
officer  which  involves  the  rights  or  interests  of  private  individuals  or  the  general 
pubhc,  the  language  used  by  Congress  is  to  be  considered  as  imposing  a  duty 
rather  than  a  discretion."  * 

Thus,  a  statute  providing  that  the  Secretary  of  the  Navy  "is  hereby  author- 
ized" to  furnish  a  clothing  bounty  to  apprentices  on  enlistment  in  the  Navy  is 
mandator}'.  Wliilc  the  ordinary  meaning  of  this  language  is  generally  per- 
missive, nevertheless  in  this  case,  the  object  of  the  statute  being  to  encourage 
enUstments,  it  "is  to  be  construed  as  imposing  upon  the  Secretary  of  the  Navy 
an  imperative  obligation  and  not  merely  discretionary  power."  * 

"Shall"  will  be  construed  as  "may"  where  no  public  or  private  right  is 
impaired  by  such  construction;  but  where  the  public  are  interested,  or  where 
the  pubhc  or  third  persons  have  a  legal  claim  that  the  act  shall  be  done,  it  is 
imperative  and  wi'l  be  construed  to  mean  "must."  For  example,  section 
1498,  Revised  Statutes,  providing  that  naval  examining  boards  "shall  consist 
of  not  less  than  three  officers  senior  in  rank  to  the  officer  to  be  examined," 
was  evidently  framed  as  a  protection  to  officers  generally,  and  is  therefore 
construed  as  mandatory;  hence  the  proceedings  of  a  board  are  fatally  defective 
where  one  of  the  members  was  junior  to  the  candidate.^ 

"The  rule  of  construction  of  statutory  provisions  regulating  the  time, 
form,  and  mode  of  proceeding  by  courts  and  public  officers  is  that  they  are 
generally  to  be  deemed  directory  and  as  intended  merely  to  secure  system, 
uniformity,  and  dispatch  in  the  conduct  of  public  business.  'Provisions  of 
this  character  are  not  usually  regarded  as  mandatory  unless  accompanied  by 
negative  words,  importing  that  the  acts  required  shall  not  be  done  in  any 
other  manner  or  time  than  designated.'"  * 

1  Jones  V.  Guaranty,  etc.,  Co.  (101 U.  S., 622, 626);  Beley  v.  Naphtaly  (169  V.  S.,  353, 359,  360);  Ramsey  v.  Tacoma  Land 
Co.  (196  U.  S.,  360,  362);  20  Comp.  Dec.,  380. 

2  U.  S.  p.  St.  Anthony  R.  Co.  (192  U.  S.,  524,  540). 

3  File  262CO-1244,  April  14,  1911;  see  also  8  Op.  Atty.  Gen.,  112. 
«  25  Op.  Atty.  Gen.,  270;  file-  26539-551. 

»  File  26260-1244,  AprU  14,  1911;  see  also  8  Op.  Atty.  Gen.,  112. 

«  In  re  Stein,  105  Fed.  Rep.,  749, 750,  quoting  French  v.  Edwards  (13  Wall.,  506-511);  see  also  Indianapolis,  etc.,  R.  Co. 
V.  Horst  (93  U.  S.,  301);  AVest  Wisconsin  R.  Co.  v.  Foley  (94  U.  S.,  100);  Labadio  v.  U.  S.  (31  Ct.  Cls.,  436);  Woolridgey. 
McKenna  (8  Fed.  Rep.,  650);  Thomas's  Motion  (15  Ct.  Cls.,  335). 


24 


PART  1. 


THE  CONSTITUTION  OF  THE  UNITED  STATES 

OF  AMERICA. 


25 


HISTORICAL  NOTE. 

[Compiled  principally  from  notes  to  Constitution  in  Revised  Statutes  of  the  United  States,  second  edition,  and  S.  Doc. 

No.  427,  66th  Cong.,  3d  sess.j 


The  origfinal  Constitution. — In  May, 
1785,  a  committee  of  Congress  made  a  report 
recommending  an  alteration  in  the  Articles  of 
Confederation,  but  no  action  was  taken  on  it, 
and  it  was  left  to  the  State  Legislatures  to  pro- 
ceed in  the  matter.  In  January,  1786,  the  Leg- 
islature of  Virginia  passed  a  resolution  pro\dd- 
ing  for  the  appointment  of  five  commissioners, 
who,  or  any  three  of  them,  should  meet  such 
commissioners  as  might  be  appointed  in  the 
other  States  of  the  Union,  at  a  time  and  place 
to  be  agreed  upon,  to  take  into  consideration 
the  trade  of  the  United  States;  to  consider  how 
far  a  uniform  system  in  their  commercial  regu- 
lations may  be  necessary  to  their  common  in- 
terest and  their  permanent  harmony;  and  to 
report  to  the  several  States  such  an  act,  relative 
to  this  great  object,  as,  when  ratified  by  them, 
will  enable  the  United  States  in  Congress 
effectually  to  provide  for  the  same.  The  Vir- 
ginia commissioners,  after  some  correspondence, 
fixed  the  first  Monday  in  September  as  the  time, 
and  the  city  of  Annapolis  as  the  place  for  the 
meeting,  but  only  four  other  States  were  repre- 
sented, viz:  Delaware,  New  York,  New  Jersey, 
and  Pennsylvania;  the  commissioners  ap- 
pointed by  Massachusetts,  New  Hampshire, 
North  Carolina,  and  Rhode  Island  failed  to 
attend.  Under  the  circumstances  of  so  partial 
a  representation,  the  commissioners  present 
agreed  upon  a  report  (drawn  by  Mr.  Hamilton, 
of  New  York),  expressing  their  unanimous  con- 
viction that  it  might  essentially  tend  to  ad- 
vance the  interests  of  the  Union  if  the  States  by 
which  they  were  respectively  delegated  would 
concur,  and  use  their  endeavors  to  procure 
the  concurrence  of  the  other  States,  in  the 
appointment  of  commissioners  to  meet  at  Phila- 
delphia on  the  second  Monday  of  May  following, 
to  take  into  consideration  the  situation  of  the 
LTnited  States;  to  devise  such  fmther  pro\'isions 
as  should  appear  to  them  necessary  to  render 
the  Constitution  of  the  Federal  Government 
adequate  to  the  exigencies  of  the  LTnion;  and 
to  report  such  an  act  for  that  pm-pose  to  the 
United  States  in  Congress  assembled  as,  when 
agreed  to  by  them  and  afterwards  confirmed  by 
the  Legislatures  of  every  State,  would  effectu- 
ally provide  for  the  same. 

Congress,  on  the  21st  of  February,  1787, 
adopted  a  resolution  in  favor  of  a  convention, 
and  the  Legislatures  of  those  States  which  had 
not  already  done  so  (with  the  exception  of 
Rhode  Island)  promptly  appointed  delegates. 
On  the  25th  of  May,  seven  States  ha\'ing  con- 
vened, George  Washington,  of  Virginia,  was 
unanimously  elected  President,  and  the  con- 
sideration of  the  proposed  constitution  was 
commencod.  _  On  the  17th  of  September,  1787, 
the  Constitution  as  engrossed  and  agreed  upon 
was  signed  by  all  the  members  present,  except 


IVIi-.  Gerry,  of  Massachusetts,  and  Messrs. 
Mason  and  Randolph,  of  Virginia.  The  presi- 
dent of  the  convention  transmitted  it  to  Con- 
gress, with  a  resolution  stating  how  the  proposed 
Federal  Government  should  be  put  in  operation, 
and  an  explanatory  letter.  Congress,  on  the 
28th  of  September,  1787,  directed  the  Constitu- 
tion so  framed,  with  the  resolutions  and  letter 
concerning  the  same,  to  "be  transmitted  to  the 
several  Legislatures  in  order  to  be  submitted 
to  a  convention  of  delegates  chosen  in  each 
State  by  the  people  thereof,  in  conformity  to 
the  resolves  of  the  convention." 

On  the  4th  of  March,  1789,  the  day  which  had 
been  fixed  for  commencing  the  operations  of 
Government  under  the  new  Constitution,  it 
had  been  ratified  by  the  conventions  chosen 
in  each  State  to  consider  it,  as  follows:  Dela- 
ware, December  7,  1787;  Pennsylvania,  De- 
cember 12,  1787;  New  Jersey,  December  18, 
1787;  Georgia,  January  2,  1788;  Connecticut, 
January  9,  1788;  Massachusetts,  February  6, 
1788;  Marvland,  April  28,  1788;  South  Caro- 
lina, May'2.3,  1788;  New  Hampshire,  June  21, 
1788;  Virginia,  June  26,  1788;  and  New  York, 
•luly  26,  1788. 

The  President  informed  Congress,  on  the  28th 
of  January,  1790,  that  North  Carolina  had 
ratified  the  Constitution  November  21,  1789; 
and  he  informed  Congress  on  the  1st  of  June, 

1790,  that  Rhode  Island  had  ratified  the  Con- 
stitution May  29,  1789.  Vermont,  in  conven, 
tion,  ratified  the  Constitution  January  10,  1791- 
and  was,  by  an  act  of  Congress  approved  Feb- 
rtiary  18,  1791,  "received  and  admitted  into 
this  Union  as  a  new  and  entire  member  of  the 
United  States." 

The  first  ten  amendments  to  the  Constitu- 
tion of  the  United  States  [commonly  known 
as  the  "Bill  of  Rights"]  were  proposed  to  the 
legislatm-es  of  the  several  States  by  the  First 
Congress,  on  the  25th  of  Septenaber,  1789. 
They  were  ratified  by  the  following  States, 
and  the  notifications  of  ratification  by  the 
governors  thereof  were  successively  communi- 
cated by  the  President  to  Congress:  New 
Jersey,  November  20,  1789;  Maryland,  De- 
cember 19,  1789;  North  Carolina,  December 
22,  1789;  South  Carolina,  January  19,  1790; 
New  Hampshire,  January  25,  1790;  Delaware, 
January  28,  1790;  Pennsylvania,  March  10, 
1790;  New  York,  March  27,  1790;  Rhode 
Island,  June  15,  1790;  Vermont,  November  3, 

1791,  and  Virginia,  December  15,  1791.  There 
is  no  evidence  on  the  journals  of  Congress 
that  the  legislatines  of  Connecticut,  Georgia, 
and  Massachusetts  ratified  them. 

The  eleventh  amendment  to  the  Constitu- 
tion of  the  United  States  was  proposed  to  the 
legislatiu"es  of  the  several  States  by  the  Third 
Congi-ess  on  the  5th  of  March,  1794;  and  was 


54641°— 22- 


27 


Historical  Note. 


PL  1.   THE  CONSTITUTION. 


doclared  in  a  message  from  the  Prosidont  to 
Congress,  dated  th(>  Stli  of  January,  179S,  to 
have  been  ratified  by  the  k'gislatures  of  three- 
fourths  of  the  States. 

The  twelfth  amendment  to  the  Constitu- 
tion of  the  I'uitcd  Slates  was  proposed  to  the 
U'gbUitures  of  llio  several  ytat(>s  l)y  the  Eighth 
Congress,  on  tlie  12th  of  December,  1S03,  in 
lieu  of  the  original  third  paragraph  of  the  fust 
section  of  the  sr  cond  artide;  and  was  declared 
in  a  proclamation  of  the  Secretary  of  State, 
dated  the  2oth  of  Sept<>mber,  1804,  to  have  been 
rati  lied  by  the  K'gislatures  of  three-fourths 
of  the  States. 

The  thirteenth  amendment  to  the  Con- 
stitution of  the  United  States  was  proposed  to 
the  legislatures  of  the  several  States  by  the 
Thirt}-eighth  Congress,  on  the  1st  of  February, 
1865,  and  was  declared,  in  a  proclamation  of  th(^ 
Secretary  of  State,,  dated  the  18th  of  December, 

1865,  to  have  been  ratified  by  the  legislatures  of 
twenty-seven  of  the  thirty-six  States,  viz; 
Illinois,  Rhode  Island,  Michigan,  Maryland, 
New  York,  West  Virginia,  Maine,  Kansas, 
Massachusetts,  Pennsylvania,  Virginia,  Ohio, 
Missouri,  Nevada,  Indiana,  Louisiana,  Minne- 
sota, Wisconsin,  Vermont,  Tennessee,  Arkansas, 
Connecticut,  New  Hampshire,  South  Carolina, 
Alabama,  North  Carolina,  and  Georgia. 

The  fourteenth  amendment  to  the  Con- 
stitution of  the  United  States  was  proposed  to 
the  legislature's  of  the  several  States  by  the 
Thirty-ninth  Congress,  on  the  16th  of  June, 

1866.  On  the  21st  of  July,  1868,  Congress 
adopted  and  transmitted  to  the  Department  of 
State  a  concurrent  resolution  declaring  that 
"the  legislatures  of  the  States  of  Connecticut, 
Tenijessee,  New  Jersey,  Oregon,  Vermont,  New 
York,  Ohio,  Illinois,  West  Virginia,  Kansas, 
Maine,  Nevada,  Missouri,  Indiana,  Alinnesota, 
New  Hampshire,  Massachusetts,  Nebraska, 
Iowa,  Arkansas,  Florida,  North  Carolina,  Ala- 
bama, South  Carolina,  and  Louisiana,  being 
three-fourths  and  more  of  the  several  States  of 
the  Union,  have  ratified  the  fourteenth  article 
of  amendment  to  the  Constitution  of  the  United 
States,  duly  proposed  by  two-thirds  of  each 
House  of  the  Thirty-ninth  Congress:  Therefore 
Resolved,  That  said  fourteenth  article  is  hereby 
declared  to  be  a  part  of  the  Constitution  of  the 
United  States,  and  it  shall  be  duly  promulgated 
as  such  by  the  Secretary  of  State."  The 
Secretary  of  State  accordingly  issued  a  procla- 
mation, dated  the  28th  of  July,  1868,  declaring 
that  the  proposed  fourteenth  amendment  had 
been  ratified,  in  the  manner  hereafter  men- 
tioned, by  the  legislatures  of  thirty  of  the  thirty- 
six  States,  viz:  Connecticut,  June  30,  1866; 
New  Hampshire,  July  7,  1866;  Tennessee,  July 
19,  1866;  New  Jersey,  September  11,  1866  (and 
the  legislature  of  the  same  State  passed  a  reso- 
lution in  April,  1868,  to  withdraw  its  consent  to 
it);  Oregon,  September  10,  1866;  Vermont, 
November  9,  1866;  Georgia  rejected  it  Novem- 
ber 13,  1860,  and  ratified  it  July  21,  1868; 
North  Carolina  rejected  it  December  4,  1866, 
and  ratified  it  July  4,  1868;  South  Carolina 
rejected  it  December  20,  1866,  and  ratified  it 
July  9,  1868;  New  York  ratified  it  January  10, 
1867;  Ohio  ratified  it  January  11,  1867  (and  the 
legislature  of  the  same  State  passed  a  resolu- 


tion in  January,  1868,  to  withdraw  its  consent 
to  it) ;  Illinois  ratified  it  January  15, 1867 ;  West 
Virgina,  January  16, 1867;  Kansas,  January  18, 
1867;  Maine,  January  19,  1867;  Nevada,  Janu- 
ary 22,  1867;  Missouri,  January  26,  1867;  Indi- 
ana, January  20,  1867;  Minnesota,  February  1, 
1867;  Rhode  Island,  February  7,  1867;  Wis- 
consin, F(>bruary  13,  1867;  Pennsylvania, 
February  13,  1867;  Michigan,  February  15, 
1867;  Massachusetts,  March  20, 1867;  Nebraska 
June  15,  1867;  Iowa,  April  3,  1868;  Arkansas, 
April  6, 1868;  Florida,  June  9, 1868;  Louisiana, 
July  9,  1868,  and  Alabama,  July  13,  1868. 
Georgia  again  ratified  the  amendment  February 
2,  1870.  Texas  rejected  it  November  1,  1866, 
and  ratified  it  February  18,  1870.  Virginia 
rejected  it  January  19,  1867,  and  ratified  it 
October  8,  1 869.  The  amendment  was  rejected 
by  Kentucky  January  10,  1867;  by  Delaware 
February  8, 1867;  by  Maryland  March  23,  1867, 
and  was  not  afterwards  ratified  by  either  State. 

The  fifteenth  amendment  to  the  Constitu- 
tion of  the  United  States  was  proposed  to  the 
legislatures  of  the  several  States  by  the  For- 
tieth Congress  on  the  27th  of  February,  1869, 
and  was  declared,  in  a  proclamation  of  the 
Secretary  of  State,  dated  March  30,  1870,  to 
have  been  ratified  by  the  legislatures  of  twenty- 
nine  of  the  thirty-seven  States.  The  dates  of 
these  ratifications  (arranged  in  the  order  of 
their  reception  at  the  Department  of  State) 
were:  From  North  Carolina,  March  5,  1869; 
West  Virginia,  March  3,  1869;  Massachusetts, 
March  9-12,  1869;  Wisconsin,  March  9,  1869; 
Maine,  March  12,  1869;  Louisiana,  March  5, 
1869;  Michigan,  March  8,  1869;  South  Carolina, 
March  16,  1869;  Pennsylvania,  March  26,  1869; 
Arkansas,  March  30,  1869;  Connecticut,  May 
19,  1869;  Florida,  June  15,  1869;  Illinois, 
March  5,  1869;  Indiana,  May  13-14,  1869; 
Ney?  York,  March  17-April  14,  1869  (and  the 
legislature  of  the  same  State  passed  a  resolu- 
tion January  5, 1870,  to  withdraw  its  consent  to 
it);  New  Hampshire,  July  7,  1869;  Nevada, 
March  1,  1869;  Vermont,  October  21,  1869; 
Virginia,  October  8,  1869;  Missouri,  January 
10,  1870;  Mississippi,  January  15-17,  1870; 
Ohio,  January  27,  1870;  Iowa,  February  3, 
1870;  Kansas,  January  18-19,  1870;  Minnesota, 
February  19,  1870;  Rhode  Island,  January  18, 
1870;  Nebraska,  February  17,  1870;  Texas, 
February  18,  1870.  The  State  of  Georgia  also 
ratified  the  amendment  February  2,  1870. 

The  sixteenth  amendment  to  the  Consti- 
tution of  the  United  States  was  proposed  to 
the  legislatures  of  the  several  States  by  the 
Sixty-first  Congress  on  the  12th  day  of  July, 
1909,  and  was  declared,  in  an  announcement 
by  the  Secretary  of  State,  dated  February  25, 
1913,  to  have  been  ratified  by  the  legislatures 
of  the  following  thirty-eight  of  the  forty-eight 
States.  The  dates  of  these  ratifications  were: 
Alabama,  August  17,  1909;  Kentucky,  Febru- 
ary 8,  1910;  South  Carolina,  February  23, 
1910;  Illinois,  March  1,  1910;  Mississippi, 
March  11,  1910;  Oklahoma,  March  14,  1910; 
Maryland,  April  8,  1910;  Georgia,  August  3, 
1910;  Texas,  August  17,  1910;  Ohio,  January 
19,  1911;  Idaho,  January  20,  1911;  Oregon, 
January  23,  1911;  Washington,  January  26, 
1911;  California,  January  31,   1911;  Montana, 


28 


Pt.l.   THE  CONSTITUTION. 


Historical  Note. 


January  31,  1911;  Indiana,  February  6,  1911; 
Nevada,  February  8,  1911;  Nebraska,  Febru- 
ary 11,  1911;  North  Carolina,  February  11, 
1911;  Colorado,  February  20,  1911;  North 
Dakota,  February  21,  1911;  Michigan,  Febru- 
ary 23,  1911;  Iowa,  February  27,  1911;  Kansas, 
March  6,  1911;  Missouri, '  March  16,  1911; 
Maine,  March  31,  1911;  Tennessee,  April  11, 
1911;  Arkansas,  April  22,  1911;  Wisconsin,  May 
26,  1911;  New  York,  July  12,  1911;  South 
Dakota,  February  3,  1912;  Arizona,  April  9, 
1912;  Minnesota,  June  12,  1912;  Louisiana, 
July  1,  1912;  Delaware,  February  3,  1913; 
Wyoming,  February  3,  1913;  New  Jersey, 
February  5,  1913;  New  Mexico,  February  5, 
1913.  The  States  of  Connecticut,  New  Hamp- 
shire, Rhode  Island,  and  Utah  rejected  this 
amendment. 

The  seventeenth  amendment  to  the  Con- 
stitution of  the  United  States  was  proposed  to 
the  legislatixres  of  the  several  States  by  the 
Sixty-second  Congress  on  the  16th  day  of  May, 
1912,  and  was  declared,  in  an  announcement 
by  the  Secretary  of  State,  dated  May  31,  1913, 
to  have  been  ratified  by  the  legislatures  of  the 
following  thirty-six  of  the  forty-eight  States. 
The  dates  of  these  ratifications  were:  Massachu- 
setts, May  22,  1912;  Arizona,  June  3,  1912; 
Minnesota,  June  10,  1912;  New  York,  January 
15,  1913;  Kansas,  January  17,  1913;  Oregon, 
January  23,  1913;  North  Carolina,  January  25, 
1913;  California,  January  28,  1913;  Michigan, 
January  28,  1913;  Idaho,  January  31,  1913; 
West  Virginia,  February  4,  1913";  Nebraska, 
February  5,  1913;  Iowa,  February  6,  1913; 
Montana,  February  7,  1913;  Texas,  February 
7,  1913;  Washington,  February  7,  1913;  Wyom- 
ing, February  11,  1913;  Colorado,  February  13, 
1913;  Illinois,  February  13,  1913;  North  Dakota, 
February  18,  1913;  Nevada,  February  19,  1913; 
Vermont,  February  19,  1913 ;  Maine,  February 
20,  1913;  New  Hampshire,  February  21,  1913; 
Oklahoma,  February  24,  1913;  Ohio,  February 
25,   1913;  South  Dakota,  February  27,   1913; 


Indiana,  March  6,  1913;  Missouri,  March  7, 
1913;  New  Mexico,  March  15,  1913;  New  Jersey. 
March  18,  1913;  Tennessee,  April  1,  1913; 
Arkansas,  April  14,  1913;  Connecticut,  April 
15,  1913;  Pennsylvania,  April  15,  1913;  Wis- 
consin, May  9,  1913. 

The  eighteenth  amendment  to  the  Con- 
stitution of  the  United  States  was  proposed  to 
the  legislatures  of  the  several  States  by  the 
Sixty-hfth  Congress  on  the  19th  day  of  De- 
cember, 1917,  and  was  declared,  in  an  an- 
nouncement by  the  Acting  Secretary  of  State, 
dated  January  29,  1919,  to  have  been  ratified 
by  the  legislatures  of  three-fourths  of  the 
whole  number  of  States  in  the  United  States, 
as  follows:  Alabama,  Arizona,  California,  Colo- 
rado, Delaware,  Florida,  Georgia,  Idaho*  Illi- 
nois, Indiana,  Kansas,  Kentucky,  Louisiana, 
Maine,  Maryland,  Massachusetts,  Michigan, 
Minnesota,  Mississippi,  Montana,  Nebraska, 
New  Hampshire,  North  Carolina,  North 
Dakota,  Ohio,  Oklahoma,  Oregon,  South 
Dakota,  South  Carolina,  Texas,  Utah,  Vii'ginia, 
Washington,  West  Virginia,  Wisconsin,  and 
Wyoming. 

The  nineteenth  amendment  to  the  Con- 
stitution of  the  United  States  was  proposed  to 
the  legislatures  of  the  several  States  by  the 
Sixty-sixth  Congress  on  the  5th  day  of  June, 

1919,  and  was  declared,  in  an  announcement 
by  the  Secretary  of  State  dated  August  26, 

1920,  to  have  been  ratified  by  the  legislatures 
of  three-fourths  of  the  whole  number  of  States 
in  the  United  States,  as  follows:  Wisconsin, 
Illinois,  Michigan,  Ohio,  Massachusetts,  Iowa, 
Missouri,  Nebraska,  Montana,  Minnesota,  New 
Hampshire,  Utah,  California,  Maine,  Pennsyl- 
vania, Kansas,  Arkansas,  Texas,  New  York, 
South  Dakota,  North  Dakota,  Colorado,  Rhode 
Island,  Indiana,  Kentucky,  Oregon,  Wyoming, 
Nevada,  Arizona,  New  Jersey,  Oklahoma,  West 
Virginia,  New  Mexico,  Idaho,  Washington,  and 
Tennessee. 


29 


THE  CONSTITUTION. 


(The  text  of  the  Constitution  and  of  the  amendments  given  below  is  reproduced  from  S.  Doc.  No.  427,  66th  Cong., 
3d  sess.] 

[The  preamble.]  We  the  People  of  the  United  States,  in  Order  to  form  a 
more  perfect  Union,  establish  Justice,  insure  domestic  Tranquihty,  provide  for 
the  common  defence,  promote  the  general  Welfare,  and  secure  the  Blessings  of 
Liberty  to  ourselves  and  our  Posterity,  do  ordain  and  estabUsh  this  Consti- 
tution for  the  United  States  of  America. 

ARTICLE  I. 

Section  1.  [Legislative  powers  vested  in  Congress.]  All  legislative  Powers 
herein  granted  shall  be  vested  in  a  Congress  of  the  United  States,  which  shall 
consist  of  a  Senate  and  House  of  Representatives. 
Congress  can  not  legislate  in  detail. — To 


attempt  to  regulate  by  statute  the  minute  move- 
ments of  CAery  part  of  the  compUcated  ma- 
chinery of  government  would  evince  a  most 
unpanlonable  ignorance  on  the  subject.  Whilst 
the  great  outlines  of  its  movements  may  be 
marked  out  and  Hmitations  imposed  on  the 
exercise  of  its  powers,  there  are  numberless 
things  which  must  be  done  that  can  neither  be 
anticipated  nor  defined  and  which  are  essen- 
tial to  the  proper  action  of  the  Government. 
(U.  S.  V.  Macdaniel,  7  Pet.,  14;  U.  S.  v.  Web- 
ster, 28  Fed.  Cas.,  515;  Lewis  Pub.  Co.  v.  Wy- 
man,  182  Fed.  Rep.,  13,  16;  Haas  v.  Henkel, 
216 U.  S.,462,  480;  6  Op.  Atty.  Gen.,  358.) 

Quasi  legislative  powers  may  be  exer- 
cised by  heads  of  departments. — Congress 
can  only  legislate  in  a  general  way,  and  lai^e 
powers  are  necessarily  intrusted  to  the  different 
departments.  They  really  exercise  in  this  way 
by  delegation,  and  necessarily  so,  for  the  pur- 
pose of  carrying  on  the  vast  affairs  of  the  Govern- 
ment and  its  details,  authority  which  in  a 
strict  sense  pertains  to  Congress.  (21  Op.  Atty. 
Gen., 438,  439.)  The  authority  thus  exercised 
by  heads  of  departments  is  "quasi  legislative." 
(16  Op.  Atty.  Gen.,  495.) 

For  other  decisions  concerning  executive 
regulations,  see  note  to  section  161,  Revised 
Statutes. 

Constitutionality  of  Statutes. — "To  war- 
rant a  court  in  declaring  unconstitutional  a  law 
passed  by  Congress,  the  defect  of  legislative 
power  must  be  of  the  most  plain  and  indispu- 
table character.  The  fact  that  a  law  of  Con- 
gress has  been  in  course  of  execution  for  many 
years  and  has  been  acquiesced  in  during  that 
time  is  a  strong  reason  why  the  coiu-ts,  espe- 
cially those  of  a  subordinate  character,  should 
not  decide  the  same  to  be  unconstitutional." 
(U.  S.  V.  Mackenzie,  30  Fed.  Cas.  No.  18313.) 

Although  the  President  should  veto  an  act 
on  the  ground  that  he  believed  it  to  be  uncon- 
stitutional, if  it  should  subsequently  be  passed 
by  Congress  over  his  veto  and  the  President 
proceed  to  carry  it  into  execution,  such  action 
by  him  can  not  be  enjoined  by  the  courts. 
(Mississippi  v.  Johnson,  4  Wall.,  475.) 


The  Attorney  General  is  authorized  by  statute 
to  pass  upon  the  constitutionaUty  of  acts  of 
Congi-ess  when  requested  to  render  an  opinion 
thereon  by  the  President  or  head  of  a  depart- 
ment.    (Sec. 358,  R.  S. ;  27  Op.  Atty. Gen.,  259.) 

"Every  law  is  to  be  carried  out  so  far  forth 
as  is  consistent  with  the  Constitution,  and  no 
further.  The  sound  part  of  it  must  be  exe- 
cuted, and  the  vicious  portion  of  it  suffered 
to  drop.  A  legislative  act  is  not  to  be  treated 
as  void  merely  because  it  is  coupled  with  an 
abortive  attempt  to  usurp  executive  powers. 
It  stands  to  reason  that  if  a  condition  such  as 
this  is  asserted  to  be  is  void  it  coiild  have  no 
effect  whatever,  either  upon  the  subject  matter 
or  upon  other  parts  of  the  law  to  which  it  is 
appended.  *  *  *  You  [the  President]  are 
therefore  entirely  justified  in  treating  this  con- 
dition (if  it  be  a  condition)  as  if  the  paper  on 
which  it  is  written  were  blank."  (9  Op.  Atty. 
Gen.,  462.) 

Congress  can  not  enact  advice  or  coun- 
sel. It  can  enact  nothing  but  that  which  is 
to  have  fidl  vigor  and  effect  of  a  law.  (18  Op. 
Atty.  Gen.,  18;  but  see  sec.  1755,  R.  S.) 
However,  where  Congress  enacted  a  law  which 
was  construed  by  the  Attorney  General  to 
be  advisory  only,  and  not  mandatory  upon 
the  President  as  claimed,  the  Attorney  General 
in  his  opinion  to  the  President  remarked: 
"  But  it  is  what  yoii  called  it  in  your  message — 
a  recommendation;  and  your  respectful  defer- 
ence to  the  wishes  of  Congress  induced  you  to 
carry  it  out,  though  you  were  not  boimd  to  do 
80."     (9  Op.  Atty.  Gen.,  462.) 

"Procuring  legislation  by  the  private 
solicitation  of  persons  who  have  no  official  dela- 
tions which  authorize  them  to  communicate  with 
Congress  is  never  to  be  commended;  it  can  be 
excused  only  where  the  motive  is  as  manifestly 
honest  as  it  was  in  this  case.  You,  yourself, 
speaking  of  this  very  affair  in  a  solemn  message 
have  declared  it  to  be  dangerous  to  the  sub- 
ordination and  discipUne  of  the  Army,  since, 
if  it  were  encouraged,  'officers  might  then  be 
found,  instead  of  performing  their  appropriate 
duties,  besieging  the  halls  of  Congress  for  the 
purpose  of  obtaining  special  favors  and  choice 


30 


Senators. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  3. 


places  by  legislative  enactment.'  "  (Atty. 
Gen.  to  the  President,  9  Op.  Atty.  Gen.,  468; 
Messages  and  Papers  of  the  Presidents,  vol.  5,  p. 
597;  see  also  acta  July  11, 1919,  sec.  6,  41  Stat., 
68,  and  Aug.  24,  1912,  sec.  6,  37  Stat.,  555.) 

By  General  Orders,  No.  32,  War  Department, 
March  15,  1873,  it  was  ordered  that  "no  officer, 
either  active  or  retired,  shall,  directly  or  indi- 
rectly, without  being  called  upon  by  proper 
authority,  solicit,  suggest,  or  recommend  action 
by  Members  of  Congress  for  or  against  military 
affairs;"  that  "all  petitions  to  Congress  by 
officers  relative  to  subjects  of  a  military  char- 
acter will  be  forwarded  through  the  General  of 
the  Army  and  Secretary  of  \\'ar  for  their  action 
and  transmittal;  "  and  that  " an  officer  \TLsi ting 


the  seat  of  government  during  a  congressional 
session  will,  upon  his  arrival,  register  his  name 
at  the  Adjutant  General's  Office,  as  now  re- 
quii-ed,  and,  in  addition,  address  a  letter  to  the 
Adjutant  General  of  the  Army,  reciting  the 
purpose  of  and  time  that  will  be  embraced  by 
his  visit  and  the  authority  under  which  he  is 
absent  from  his  command  or  station.  The  pur- 
pose or  object  so  recited  will  be  the  strict  guide 
of  the  officer  during  his  stay. ' '  (As  to  authority 
of  Secretary  of  War  to  issue  such  an  order,  see 
letter  of  Secretary  of  War  in  reply  to  House 
Resolution  of  April  13,  1874,  as  published  in 
Executive  Document  No.  275,  House  of  Rep- 
resentatives, 43d  Cong.,  1st  sess.;  Lieber  on 
Regulations,  Appendix  A.) 

Sectiox  2.  [Clause  1.  Election  of  Representatives.]  *  The  House  of  Repre- 
sentatives shall  be  composed  of  Members  chosen  every  second  Year  by  the 
People  of  the  several  States,  and  the  Electors  in  each  State  shall  have  the 
Qualifications  requisite  for  Electors  of  the  most  numerous  Branch  of  the  State 
Legislature. 

[Clause  2.  Qualifications  of  Representatives.]  ^  No  Person  shall  be  a  Repre- 
sentative who  shall  not  have  attained  to  the  Age  of  twenty-five  Years,  and 
been  seven  Years  a  Citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  Inhabitant  of  that  State  in  which  he  shall  be  chosen. 

[Clause  3.  Apportionment  of  Representatives  and  direct  taxes.]  ^  Repre- 
sentatives and  direct  Taxes  shall  be  apportioned  among  the  several  States 
which  may  be  included  within  this  Union,  according  to  their  respective  Num- 
bers, which  shall  be  determined  by  adding  to  the  whole  Number  of  free  Persons, 
including  those  bomid  to  Service  for  a  Term  of  Years,  and  excluding  Indians 
not  taxed,  three  fifths  of  all  other  Persons.  The  actual  Enumeration  shall  be 
made  within  three  Years  after  the  first  Meeting  of  the  Congress  of  the  United 
States,  and  within  every  subsequent  Term  of  ten  Years,  in  such  Marnier  as 
they  shall  by  Law  direct.  The  Number  of  Representatives  shall  not  exceed 
one  for  every  thirty  Thousand,  but  each  State  shall  have  at  Least  one  Rep- 
resentative; and  until  such  enumeration  shall  be  made,  the  State  of  New 
Hampshire  shall  be  entitled  to  chuse  three,  Massachusetts  eight,  Rhode-Island 
and  Providence  Plantations  one,  Connecticut  five,  New-York  six.  New  Jersey 
four,  Pennsylvania  eight,  Delaware  one,  Maryland  six,  Virgmia  ten.  North 
Carohna  five.  South  Carolina  five,  and  Georgia  three. 

The  first  sentence  of  this  clause  is  amended  by  the  fourteenth  amendment,  second  section. 

[Clause  4.  Vacancies  in  House  of  Representatives.]  *  When  vacancies  happen 
in  the  Representation  from  any  State,  the  Executive  Authority  thereof  shall 
issue  Writs  of  Election  to  fill  such  Vacancies. 

[Clause  5.  Officers  and  impeaching"  power  of  House  of  Representatives.]  ^  The 
House  of  Representatives  shall  chuse  their  Speaker  and  other  Officers;  and 
shaU  have  the  sole  Power  of  Impeachment. 

Section  3.  [Clause  1.  Number  and  election  of  Senators.]  ^  The  Senate  of 
the  United  States  shall  be  composed  of  two  Senators  from  each  State,  chosen 
by  the  Legislature  thereof,  for  six  Years;  and  each  Senator  shall  have  one  Vote. 

This  clause  is  superseded  by  the  seventeenth  amendment. 


31 


Art.  I,  Sec.  5.  Pt.  1.   THE  CONSTITUTION.  The  Congress. 

[Clause  2.  Term  of  Senators  and  filling  of  vacancies.]  -  Immediately  after 
they  shall  be  assembled  in  Consequence  of  the  first  Election,  they  shall  be 
divided  as  equally  as  may  be  into  three  Classes.  The  Seats  of  the  Senators 
of  the  first  Class  shall  be  vacated  at  the  Expiration  of  the  second  Year,  of  the 
second  Class  at  the  Expiration  of  the  fourth  Year,  and  of  the  third  Class  at 
the  Expiration  of  the  sixtli  Year,  so  that  one-third  may  be  chosen  every  second 
Year;  and  if  Vacancies  happen  by  Resignation,  or  otherwise,  during  the 
Recess  of  the  Legislature  of  any  State,  the  Executive  thereof  may  make  tem- 
porary Appointments  until  the  next  Meetmg  of  the  Legislature,  which  shall 
then  fill  such  Vacancies. 

This  clause  is  modified  by  the  seventeenth  amendment. 

[Clause  3.  Qualifications  of  Senators.]  '  No  Person  shall  be  a  Senator  who 
shall  not  have  attained  to  the  Age  of  thirty  Years,  and  been  nine  Years  a  Citizen 
of  the  United  States,  and  who  shall  not,  when  elected,  be  an  Inhabitant  of  that 
State  for  which  ho  shall  be  chosen. 

[Clause  4.  The  Vice-President  and  his  vote.]  *  The  Vice  President  of  the 
United  States  shall  be  President  of  the  Senate,  but  shall  have  no  Vote,  imless 
they  bo  equally  divided. 

[Clause  5.  Officers  of  the  Senate.]  ^  The  Senate  shall  chuse  their  other 
Officers,  and  also  a  President  pro  tempore,  m  the  absence  of  the  Vice  President, 
or  when  he  shall  exercise  the  Office  of  President  of  the  United  States. 

[Clause  6.  Trial  by  Senate  of  impeachments.]  ^  The  Senate  shall  liave  the 
sole  Power  to  try  aU  Impeachments.  When  sitting  for  that  Purpose,  they  shall 
be  on  Oath  or  Affirmation.  When  the  President  of  the  United  States  is  tried, 
the  Chief  Justice  shall  preside:  And  no  Person  shall  be  convicted  without  the 
ConcuiTence  of  two  thirds  of  the  Members  present. 

[Clause  7.  Judgment  in  cases  of  impeachment.]  ''  Judgment  in  Cases  of 
Impeachment  shall  not  extend  further  than  to  removal  from  Office,  and  dis- 
qualification to  hold  and  enjoy  any  Office  of  honor.  Trust  or  Profit  under  the 
United  States:  but  the  Party  convicted  shall  nevertheless  be  liable  and  subject 
to  Indictment,  Trial,  Judgment  and  Punishment,  according  to  Law. 

Section  4.  [Clause  1.  Holding  of  elections  for  Senators  and  Representa- 
tives.] ^  The  Times,  Places  and  Manner  of  holding  Elections  for  Senators  and 
Representatives,  shall  be  prescribed  in  each  State  by  the  Legislature  thereof; 
but  the  Congress  may  at  any  time  by  Law  make  or  alter  such  Regulations, 
except  as  to  the  Places  of  chusing  Senators. 

[Clause  2.  Annual  session  of  Congress.]  ^  The  Congress  shall  assemble  at 
least  once  in  every  Year,  and  such  Meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  Law  appoint  a  different  Day. 

Section  5.  [Clause  1.  Regularity  of  elections,  quorum  to  do  business,  etc.] 
^  Each  House  shall  he  the  Judge  of  the  Elections,  Returns  and  Qualifications  of 
its  o^^^l  Members,  and  a  Majority  of  each  shall  constitute  a  Quorum  to  do 
Business;  but  a  smaller  Number  may  adjourn  from  day  to  day,  and  may  be 
authorized  to  compel  the  Attendance  of  absent  Members,  in  such  Manner,  and 
under  such  Penalties  as  each  House  may  provide. 


32 


The  Congress. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  6. 


Acts  of  Member  not  legally  elected. — A 
member  of  Congress  who  has  actually  been 
seated  is  a  de  facto  member,  and  acts  performed 
by  him  as  such  are  valid,  although  he  may  sub- 
sequently be  unseated  as  the  result  of  an  elec- 


tion contest.  So  held  with  reference  to  the 
nomination  of  a  candidate  for  appointment  as  a 
midshipman  at  the  Naval  Academy.  (21  Op. 
Atty.  Gen.,  342.) 


[Clause  2.  Rules  of  proceedings;  punishmeiit  of  members.]  ^  Each  House 
may  determine  the  Rules  of  its  Proceedings,  punish  its  Members  for  disorderly 
Behavior,  and,  with  the  Concurrence  of  two  thirds,  expel  a  Member. 

[Clause  3.  Journal  of  proceedings.]  ^  Each  House  sliall  keep  a  Journal  of 
its  Proceedings,  and  from  time  to  time  publish  the  same,  excepting  such  Parts 
as  may  in  their  Judgment  require  Secrecy;  and  the  Yeas  and  Nays  of  the  Mem- 
bers of  either  House  on  any  question  shall,  at  the  Desire  of  one  fifth  of  those 
Present,  be  entered  on  the  Journal. 

[Clause  4.  Temporary  adjournments.]  *  Neither  House,  during  the  Session 
of  Congress,  shall,  without  the  Consent  of  the  otlier,  adjourn  for  more  than  three 
days,  nor  to  any  other  Place  than  that  in  which  the  two  Houses  shall  be  sitting. 

A  temporary  adjournment  is  not  a  "re-  only  to  the  case  where  the  Senate  adjourns  sine 

cess  of  the  Senate"  within  the  meaning  of  die  (23  Op.  Atty.  Gen.,  599;  affirmed,  29  Op. 

Article  II,  section  2,  clause  3,  empowering  the  Atty.  Gen.,  602;  contra,  Gould  v.  U.  S.,  19  Ct. 

President  to  fill  vacancies.     "Recess"   refers  Cls.,  593,  595;  33  Op.  Atty.  Gen.,  20.) 

Section  6.  [Clause  1.  Compensation  and  privilege  of  Senators  and  Repre- 
sentatives.] ^  The  Senators  and  Representatives  shall  receive  a  Compensation 
for  tlieir  Services,  to  be  ascertained  by  Law,  and  paid  out  of  the  Treasury  of  the 
United  States.  They  shall  in  all  Cases,  except  Treason,  Felony  and  Breach  of 
the  Peace,  be  privileged  from  Arrest  during  their  Attendance  at  the  Session  of 
their  respective  Houses,  and  in  going  to  and  returning  from  the  same;  and  for 
any  Speech  or  Debate  in  either  House,  they  shall  not  be  questioned  in  any  other 
Place. 


The  privilege  from  arrest  does  not  ex- 
empt Senators  and  Representatives  from  being 
served  with,  and  required  to  obey,  a  subpoena 
in  a  criminal  case.  (U.  S.  v.  Cooper,  25  Fed. 
Gas.  No.  14861.) 

Naval  courts-martial  and  courts  of  in- 
quiry have  power  to  issue  Like  process  to  com- 
pel witnesses  to  appear  and  testify  as  United 
States  courts  of  criminal  jurisdiction;  and  re- 
fusal of  any  person  to  appear  and  testify  when 
so  subpoenaed  is  punishable  as  a  misdemeanor  by 
fine  and  imprisonment.  (Act  Feb.  16, 1909,  sees. 
11  and  12,  35  Stat.,  621,  622.)  Held,  that  under 
this  law  a  court  of  inquiry  is  empowered  to  sub- 
poena a  Representati\e  attending  a  session  of 
Congress,  but  that  if  he  refused  to  appear,  he 
could  not  be  compelled  to  do  so  owing  to  the 
fact  that  under  this  clause  of  the  Constitution 
he  would  be  pri\'ileged  from  arrest  for  the  mis- 
demeanor so  committed.  (Court  of  inquiry 
Rec.  No.  5203,  pp.  1281-1286,  1293-1294,  1339- 
1343,  1363-1365,  1422.) 

[In  the  case  cited  the  court  of  inquiry  issued 
a  subpoena  for  Representative  John  W."  Weeks. 


The  record  showed  that  he  was  advised  by  the 
Speaker  and  parliamentarians  of  the  House  not 
to  respond  without  an  order  of  the  House;  that 
this  would  necessitate  the  introduction  of  a  res- 
olution in  the  House,  which  would  possibly 
create  a  debate  and  produce  considerable  pub- 
licity as  to  the  subject  of  the  inquiry;  that  he 
was  willing  to  appear  voluntarily  without  a  sub- 
poena; that  the  Department  had  been  consulted 
and  held  as  above  stated.  Accordingly,  the 
court  decided  to  withdraw  the  subpoena,  and 
Representative  Weeks  thereupon  voluntarily 
appeared  and  testified.] 

Privilege  applies  only  to  civil  cases. — 
"The  words  'treason,  felony,  and  breach  of  the 
peace '  were  used  by  the  framers  of  the  Consti- 
tution in  Sec.  6,  Art.  I,  and  should  be  construed, 
in  the  same  sense  as  those  words  were  commonly 
used  and  understood  in  England  as  applied  to 
the  parliamentary  privilege,  and  as  excluding 
from  the  privilege  all  arrests  and  prosecutions 
for  criminal  offenses,  and  confining  the  privilege 
alone  to  arrests  in  civil  cases."  (Williamson 
V.  U.  S.,  207  U.  S.,  427.) 


[Clause  2.  Appointment  of  Senators  or  Representatives  to  otlier  oflSces.] 
2  No  Senator  or  Representative  shall,  during  the  Time  for  which  he  was  elected, 
be  appointed  to  any  civil  Office  under  the  Authority  of  the  United  States, 
which  shall  have  been  created,  or  the  Emoluments  whereof  shall  have  been 
encreased  during  sucli  time;  and  no  Person  holding  any  Office  under  the  United 
Statas,  shall  be  a  Member  of  either  House  during  his  Continuance  in  Office. 


33 


Art.  I,  Sec.  7. 


Pt.  1.   THE  CONSTITUTION. 


Veto  Po-wer. 


This  clause  prevents  the  appointment  of 
a  ft)rnuT  i^cnutor  to  a  c\\\\  oilico  created  after 
his  resignation  from  the  iSenate,  but  "during 
the  time  for  which  he  was  elected."  (17  Op. 
Atty.  Gen.,  3G5.)  It  also  prevents  his  appoint- 
ment as  a  member  of  the  Cabinet,  where  the 
salary  of  the  office  was  increased  during  his 
service  in  the  Senate.  (See  note  to  sec.  160, 
R.  S.)  The  President  is  not  authorized  to 
nominate  for  office  a  person  ineligible  under 
this  clause,  and  such  a  nomination,  although 
confirmed  by  the  Senate,  can  not  be  made  the 


basis  of  an  appointment  to  the  nominee  even 
when  his  disqualification  ceases.  (17  Op.  Atty. 
Gen.,  522.) 

The  Secretary  of  War  is  not  in  the  military 
service,  but  is  a  civil  officer.  (U.  S.  v.  Bums, 
12  Wall.,  246.) 

Whether  a  retired  Army  officer  can  receive 
pay  as  such  while  holding  a  seat  in  Congress  is 
a  question  of  grave  doubt  which  only  a  deter- 
mination of  the  Supreme  Court  can  satisfac- 
torily settle.  (20  Op.  Atty.  Gen.,  686;  see  also 
file  27231-74,  May  12,  1916.) 


Section  7.  [Clause  1.  Bills  for  raising  revenue.]  ^All  Bills  for  raising 
RoTonue  shall  originate  in  the  House  of  Representatives;  but  the  Senate  may 
propose  or  concur  with  Amendments  as  on  other  Bills. 

[Clause  2.  Approval  and  disapproval  of  bills  by  President.]  -  Every  Bill 
which  shall  have  passed  the  House  of  Representatives  and  the  Senate,  shall, 
before  it  become  a  Law,  be  presented  to  the  President  of  the  United  States; 
If  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it,  with  his  Objections 
to  that  House  in  which  it  shall  have  originated,  who  shall  enter  the  Objections 
at  large  on  their  Journal,  and  proceed  to  reconsider  it.  If  after  such  Recon- 
sideration two  thirds  of  that  House  shall  agree  to  pass  the  Bill,  it  shall  be  sent, 
together  with  the  Objections,  to  the  other  House,  by  which  it  shall  likewise 
be  reconsidered,  and  if  approved  by  two  thirds  of  that  House,  it  shall  become 
a  Law.  But  in  all  such  Cases  the  Votes  of  both  Houses  shall  be  determined 
by  Yeas  and  Nays,  and  the  Names  of  the  Persons  voting  for  and  against  the 
Bill  shall  be  entered  on  the  Journal  of  each  House  respectively.  If  any  BOl 
shall  not  be  returned  by  the  President  within  ten  Days  (Sundays  excepted) 
after  it  shall  have  been  presented  to  him,  the  Same  shall  be  a  Law,  in  like 
Manner  as  if  he  had  signed  it,  unless  the  Congress  by  their  Adjournment  prevent 
its  Return,  in  which  Case  it  shall  not  be  a  Law. 


Bills  vetoed  as  unconstitutional  and 
becoming  law  without  President's  ap- 
proval.— ^\Vhere  certain  bills  were  enacted  into 
law  without  the  approval  of  President  Johnson, 
who  had  vetoed  them  on  the  ground  of  their 
unconstitutionality,  he  proceeded  to  put  them 
into  effect,  and  it  was  held  by  the  Supreme 
Court  that  such  action  on  the  part  of  the  Presi- 
dent could  not  be  enjoined,  notwithstanding 
the  alleged  unconstitutionality  of  the  statutes. 
(Mississippi  v.  Johnson,  4  Wall.,  475.) 

Veto  of  bill  authorizing  restoration  of 
dismissed  officer. — A  bill  passed  by  both 
houses  of  Congress  pro^•ided:  That  the  Presi- 
dent be,  and  he  is  hereby,  authorized  to  nomi- 
nate and,  by  and  with  the  advice  and  consent 
of  the  Senate,  to  appoint  Fitz  John  Porter,  late 
a  major  general  of  the  United  States  Volunteei-s 
and  a  brevet  brigadier  general  and  colonel  of 
the  Army,  to  the  position  of  colonel  in  the  Army 
of  the  United  States,  of  the  same  grade  and  rank 
held  by  him  at  the  time  of  his  dismissal  from  the 
Army  by  sentence  of  court-martial  promul- 
gated January  27,  1863.     *    *    *     " 

This  bill  was  vetoed  by  the  President  in  a 
message  reading  in  part  as  follows: 

"  It  is  apparent  that  should  this  bill  become  a 
law  it  will  create  a  new  office  which  can  be 
filled  by  the  appointment  of  the  particular  in- 


dividual whom  it  specifies,  and  can  not  be  filled 
otherwise;  or  it  may  be  said  with  perhaps 
greater  precision  of  statement  that  it  ■u'ill  create 
a  new  office  upon  condition  that  the  particular 
person  designated  shall  be  chosen  to  fill  it. 
Such  an  act,  as  it  seems  to  me,  is  either  unneces- 
sary and  ineffective  or  it  involves  an  encroach- 
ment by  the  legislative  branch  of  the  Govern- 
ment upon  the  authority  of  the  Executive. 
As  the  Congress  has  no  power  under  the  Consti- 
tution to  nominate  or  appoint  an  officer  and  can 
not  lawfully  impose  upon  the  President  the 
duty  of  nominating  or  appointing  to  office  any 
particular  indi\'idual  of  its  own  selection,  this 
bill,  if  it  can  fairly  be  constnied  as  requiring  the 
President  to  make  the  nomination  and,  by  and 
with  the  advice  and  consent  of  the  Senate,  the 
appointment  which  it  axithorizes  is  in  manifest 
violation  of  the  Constitution.  If  such  be  not  its 
just  interpretation,  it  must  be  regarded  as  a 
mere  enactment  of  advice  and  counsel,  which 
lacks  in  the  very  nature  of  things  the  force  of 
positive  law  and  can  serve  no  useful  purpose 
upon  the  statute  books."  (Veto  message  of 
President  Arthur,  Jidy  2,  1884,  Messages  and 
Papers  of  the  Presidents,  vol.  8,  p.  221.) 

The  Attorney  General  advised  the  President  that 
the  above  bill  was  beyond  the  power  of  Congress 
and  should  not  be  approved  by  the  President, 


34 


Veto  Power. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  7. 


for  reasons  similar  to  those  afterwards  given  in 
the  veto  message  above  quoted.  (See  18  Op. 
Atty.  Gen.,  18,  noted  imder  Art.  II,  sec.  2, 
clause  2.) 

The  Secretary  of  the  Navy  in  commenting  upon 
the  above  veto  message  stated:  "The  foregoing 
clear  exposition  of  the  force  of  section  2  of  Arti- 
cle II  of  the  Constitution  *  *  *  shows  that 
an  effectual  barrier  has  been  established  by  the 
Constitution  to  any  restoration  to  the  Navy,  by 
legislation,  of  particiilar  officers  who  have  been 
dismissed  therefrom;  and  the  Supreme  Court 
has  further  established  the  proposition  that 
such  dismissals  when  once  accomplished  can  not 
be  revoked  by  the  Executive.  No  more  impor- 
tant doctrines  than  these  can  be  stated  bearing 
upon  the  welfare  of  our  Na\'y  personnel. ' '  (An- 
nual Report,  1884,  p.  43.  See  also  note  to  Art. 
II,  sec.  2,  clause  2,  "Restoration  of  dismissed 
officers.") 

Veto  of  bill  to  annul  the  finding  and  sen- 
tence of  a  court-martial. — "There  are  other 
causes  that  deter  me  from  giving  this  bill  the 
sanction  of  my  approval.  The  judgment  of  the 
court-martial  by  which,  more  than  twenty  years 
since,  Fitz  John  Porter  was  tried  and  convicted 
was  pronounced  by  a  tribimal  composed  of  nine 
general  officers  of  distinguished  character  and 
ability.  Its  investigation  of  the  charges  for 
which  it  found  the  accused  guilty  was  thorough 
and  conscientious,  and  its  findings  and  sentence 
were  in  due  coiu-se  of  law  approved  by  Abraham 
Lincoln,  then  President  of  the  United  States. 
Its  legal  competency,  its  jurisdiction  of  the  ac- 
cused and  of  the  subject  of  the  accusations,  and 
the  substantial  regularity  of  all  of  its  proceed- 
ings are  matters  which  have  never  been  brought 
into  question.  Its  judgment,  therefore,  is  final 
and  conclusive  in  its  character    *    *    *. 

"The  pro\isions  of  the  bill  now  under  con- 
sideration are  avowedly  based  on  the  assumption 
that  the  findings  of  the  court-martial  have  been 
discovered  to  be  erroneous;  but  it  will  be  borne 
in  mind  that  the  investigation  which  is  claimed 
to  have  resulted  in  this  discovery  was  made 
many  years  after  the  events  to  which  that  evi- 
dence related  and  under  circumstances  that 
made  it  impossible  to  reproduce  the  evidence 
on  which  they  were  based. 

"It  seems  to  me  that  the  proposed  legislation 
woTild  establish  a  dangerous  precedent,  calcu- 
lated to  imperil  in  no  small  measure  the  binding 
force  and  effect  of  the  judgments  of  the  various 
tribiuials  established  under  om-  Constitution 
and  laws. 

"I  have  already,  in  the  exercise  of  the  par- 
doning power  with  which  the  President  is 
vested  by  the  Constitution,  remitted  the  con- 
tinuing penalty  which  had  made  it  impossible 
for  Fitz  John  Porter  to  hold  any  office  of  trust  or 
profit  under  the  Government  of  the  United 
States;  but  I  am  im willing  to  give  my  sanction 
to  any  legislation  which  shall  practically  annul 
and  set  at  naught  the  solemn  and  deliberate 
conclusions  of  the  tribunal  by  which  he  was 
con\dcted  and  of  the  President  by  whom  its 
findings  were  examined  and  approved."  (Veto 
message  of  President  Arthur,  July  2,  1884,  Mes- 
sages and  Papers  of  the  Presidents,  vol.  8.  p. 
221.) 


Veto  of  bill  to  alter  military  records. — 
"The  bill  is  objectionable  because,  if  approved, 
it  will  require  that  for  all  purposes  that  are  con- 
trolled by  the  laws  of  the  United  States,  Aaron 
Cornish  shall  be  held  and  considered  to  have 
been  honorably  discharged  as  assistant  surgeon 
from  the  Ninety-seventh  New  York  Volunteer 
Infantry.  But  it  is  a  fact  that  Asst.  Surg. 
Cornish  was  dismissed  fi-om  the  military  serv- 
ice of  the  United  States  as  of  the  organiza- 
tion mentioned  September  8,  1862,  in  pursu- 
ance of  an  order  issued  by  competent  authority. 
In  addition  to  this  the  approval  of  this  bill  will 
require  an  alteration  of  historical  records  that 
should  be  kept  inviolate.  If  approved,  the  bill 
will  also  require  the  issuance  of  a  certificate  of 
honorable  discharge  in  the  case  of  an  officer 
who,  as  a  matter  of  fact,  was  not  honorably  dis- 
charged from  the  military  service.  It  is  im- 
possible to  discharge  Cornish  honorably  now, 
because  both  he  and  the  organization  of  which 
he  was  a  member  passed  out  of  the  military 
service  of  the  United  States  and  beyond  mili- 
tary control  more  than  40  years  ago.  And  to 
issue  a  certificate  to  show  that  he  is  now,  or  was 
at  some  previous  time,  honorably  discharged 
firom  the  military  service  of  the  United  States 
would  be  to  issue  a  false  certificate. 

"It  is  easily  possible,  without  any  alteration 
of  historical  records  and  without  the  issuance 
of  a  discharge  certificate  that  is  contrary  to  the 
fact,  to  confer  upon  Aaron  Cornish,  or  any  other 
person  claiming  under  him,  any  right  or  benefit 
to  which  he,  or  such  other  person,  would  have 
been  entitled ,  if  it  were  a  fact  that  he  actually 
was  honorably  discharged  from  the  military 
service  of  the  United  States.  If,  as  is  pre- 
sumably the  case,  it  is  desired  to  give  him,  or 
some  other  person  claiming  under  him,  a  pen- 
sionable status,  of  which  he  or  such  other  person 
is  now  deprived  by  reason  of  the  fact  that  he 
was  not  honorably  discharged,  that  object  can 
be  accomplished  with  certainty,  without  re- 
quiring any  alteration  of  records  and  without 
the  issue  of  an  incorrect  discharge  certificate, 
by  enacting  a  law  pro\dding  as  follows: 

"  'That  in  the  administration  of  the  pension 
laws,  Aaron  Cornish,  who  was  assistant  surgeon. 
Ninety-seventh  New  York  Volunteer  Infantry, 
shall  hereafter  be  held  and  considered  to  have 
been  discharged  honorably  from  the  military 
service  of  the  United  States  as  a  member  of  said 
organization  on  the  eighth  day  of  September, 
eighteen  hundred  and  sixty-two.'  "  (Veto 
message  of  President  Taft,  Mar.  28,  1910, 
quoting  and  adopting  report  of  The  Adjutant 
General  of  the  Army;  S.  Doc.  No.  464,  61st 
Cong.,  2d  sess.;  45  Cong.  Rec,  pt.  4,  pp.  3848, 
3849.) 

Veto  of  bill  to  restore  to  active  list 
oflS,cer  voluntarily  retired.— "I  inclose 
herewith  copy  of  reports  of  the  Secretary  of  the 
Navy  and  of  the  Chief  of  the  Bureau  of  Na\'iga- 
tion  adverse  to  the  signature  of  this  bill.  The 
report  of  the  Chief  of  the  Bureau  of  Navigation 
gives  the  precedents  which  this  bill  follows. 
In  each  case  special  reasons  were  believed  to 
exist  at  the  time  why  a  special  exception  should 
be  made,  but  actual  experience  has  shown  that 
in  each  case  the  restoration  served  as  a  prece- 


35 


Art.  I,  Sec.  8. 


Pt.  1.   THE  CONSTITUTION. 


Naturalization. 


ment,  and  I  see  no  reason  why  that  action 
should  be  reversed.  The  board  was  composed 
of  well-known  officers,  and  I  believe  that  their 
recommendation  was.  in  accordance  \vith  their 
oaths,  based  upon  the  relative  standing  and 
special  fitness  of  the  officer  concerned,  as  well 
as  the  efficiency  of  the  naval  service.  If  this 
bill  for  the  rslief  of  Commodore  Veeder  is  ap- 
proved, it  will  probably  be  followed  by  others 
of  a  similar  nature  for  the  retm-n  of  all  officers 
who  have  been  placed  on  the  retired  list  in 
accordance  with  the  provisions  of  the  personnel 
act,  and  it  is  my  opinion  that  the  enacting  of 
this  measure  into  a  law  will  have  a  most  inju- 
rious effect  upon  the  naval  service."  (Veto 
message  of  President  Taft,  Mar.  4,  1911,  46 
Cong.  Rec.,  pt.  5,  p.  4290.  61st  Cons:.,  3d  sess. 
But  see  act  Mar.  3,  1915,  38  Stat.,  939,  making 
provision  for  restoration  to  active  list  of  all 
officers  compulsorily  retired  under  the  personnel 
act  of  Mar.  3,  1899;  and  see  act  of  Aug.  29, 
1916,  39  Stat.,  602,  603,  making  provision  for 
restoration  to  the  active  list  of  Commodore 
Veeder  and  other  officers  named  therein. 

Veto  of  bill  to  make  retired  oflB^cers  of 
Army  not  amenable  to  court-martial. — 
See  note  to  section  1457,  Revised  Statutes. 


dent  for  the  restoration  of  somebody  else  where 
the  cause  was  not  quite  so  strong.  Commander 
White  was  transferred  to  the  retired  list  three 
years  ago  on  his  own  application.  Ho  now 
seeks  reinstatemeixt.  All  the  advantages  that 
should  bo  derived  from  the  legislation  under 
which  he  was  retired  will  be  lost  if  the  various 
individuals  who  take  advantage  of  it  are  en- 
couraged to  believe  that  whenever  they  desire 
to  undo  their  action  that  end  can  be  achieved 
by  supplemental  special  legislation.  I  agi-ee 
entirely  with  Admiral  Pillsbury's  statement 
that  legislation  of  this  character  does  not  con- 
tribute to  the  best  interests  of  the  service.  I 
accordingly  return  the  bill  without  my  ap- 
proval."" (Veto  message  of  President  Roose- 
velt. Apr.  7,  1908,  42  Cong.  Rec,  pt.  5,  p.  4503, 
60th  Cong..  1st  sess.)     ' 

Veto  of  bill  to  restore  to  active  list 
officer  compulsorily  retired. — "In  accord- 
ance Avith  the  provisions  of  the  personnel  act  of 
March  3,  1899,  Capt.  Veeder  was  placed  upon 
the  retired  list  with  the  rank  of  commodore, 
being  one  of  the  officers  deemed  by  the  board 
of  five  rear  admirals  less  efficient  than  the  re- 
maining captains  on  the  active  list.  The  find- 
ing of  this  Doard  was  approved  by  me,  acting 
upon  the  recommendation  of  the  Navy  Depart- 

[Clause  3.  President's  action  on  joint  resolutions.]  ^  Every  Order,  Resolu- 
tion, or  Vote  to  which  the  Concurrence  of  the  Senate  and  House  of  Representa- 
tives may  be  necessary  (except  on  a  question  of  Adjournment)  shall  be  pre- 
sented to  the  President  of  the  United  States;  and  before  the  Same  shall  take 
Effect,  shall  bo  approved  by  him,  or  bemg  disapproved  by  him,  shall  be  repassed 
by  two  thirds  of  the  Senate  and  House  of  Representatives,  according  to  the 
Rules  and  Limitations  prescribed  m  the  Case  of  a  Bill. 

Section  8.  The  Congress  shall  have  Power  [Clause  1.  Ee venue  power, 
common  defense  and  general  welfare.]  ^To  lay  and  collect  Taxes,  Duties, 
Imposts  and  Excises,  to  pay  the  Debts  and  provide  for  the  common  Defence 
and  general  Welfare  of  the  United  States;  but  all  Duties,  Imposts  and  Excises 
shall  be  uniform  throughout  the  United  States; 

[Clause  2.  Borrowing  power.]  ^  To  borrow  money  on  the  credit  of  the 
United  States ; 

[Clause  3.  Power  over  commerce.]  ^  To  regulate  Commerce  with  Foreign 
Nations,  and  among  the  several  States,  and  vnth  the  Indian  Tribes; 

[Clause  4.  Naturalization  and  bankruptcies.]  ■*  To  establish  an  uniform 
Rule  of  Naturalization,  and  uniform  Laws  on  the  subject  of  Bankruptcies 
throughout  the  United  States ; 


"The  power  of  naturalization,  vested  in 
Congress  by  the  Constitution,  is  a  power  to 
confer  citizenship,  not  a  power  to  take  it  away. 
'A  naturalized  citizen,'  said  Chief  Justice  Mar- 
shall, 'becomes  a  member  of  the  society,  pos- 
sessing all  the  rights  of  a  native  citizen,  and 
standing,  in  the  \-iew  of  the  Constitution,  on 
the  footing  of  a  native.  The  Constitution  does 
not  authorize  Congress  to  enlarge  or  abridge 
those  rights.  The  simple  power  of  the  national 
legislature  is  to  prescribe  a  uniform  rule  of 
naturalization,  and  the  exercise  of  this  power 
exhausts  it,  so  far  as  respects  the  individual. 


The  Constitution  then  takes  him  up,  and, 
among  other  rights,  extends  to  him  the  capac- 
ity of  suing  in  the  courts  of  the  Urdted  States 
precisely  under  the  same  circumstances  which 
a  native  might  sue.'  Congress  having  no  power 
to  abridge  the  rights  conferred  by  the  Constitu- 
tion upon  those  who  have  become  naturalized 
citizens  by  virtue  of  acts  of  Congress,  a  fortiori, 
no  act  or  omission  of  Congress,  as  to  the  pro- 
viding for  the  naturalization  of  parents  or  chil- 
dren of  a  particular  nice,  can  affect  citizenship 
acquired  as  a  birthright,  by  virtue  of  the  Con- 
stitution itself,  without  any  aid  of  legislation." 


86 


Inferior  Courts. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


deemed  to  have  voluntarily  relinquished  and 
forfeited  their  rights  of  citizensliip,  as  well  as 
their  ri^ht  to  become  citizens;  and  such  desert- 
ers shall  be  forever  incapable  of  holding  any 
office  of  trust  or  profit  under  the  United  states, 
or  of  exercising  any  rightsof  citizens  thereof." 
(Sec.  1998,  R.  S.,  as  amended  by  act  Aug.  22, 
1912,  37  Stat.,  356.) 

For  other  statutes  and  decisions  relating 
to  citizenship  and  naturalization,  see  note  to 
Amendments,  Art.  XIV. 


(U.  S.  V.  Wong  Kim  Ark,  169  U.  S.,  649._  As 
to  loss  of  citizenship,  compare  Mackenzie  v. 
Hare,  239  U.  S.,  299.) 

Naturalization  of  enlisted  men  of  the 
Navy  and  Marine  Corps. — Special  provision 
has  been  made  by  Congress  in  these  cases, 
which  form  exceptions  to  the  general  naturali- 
zation law.  (See  act  May  9,  1918,  40  Stat., 
542.) 

Deserters  from  the  military  or  naval 
service,   who    desert  in    time    of   war,    "are 

[Clause  5.  Coinage,  weights,  and  measures.]  ^  To  coin  Money,  regulate  the 
Value  thereof,  and  of  foreign  Coin,  and  fix  the  Standard  of  Weights  and  Meas- 
ures ; 

[Clause  6.  Counterfeiting.]  ®  To  provide  for  the  Punishment  of  counter- 
feiting the  Securities  and  current  Coin  of  the  United  States; 

[Clause  7.  Post  ojfices  and  post  roads.]  '^  To  establish  Post  Offices  and  post 
Roads; 

[Clause  8.  Patents  and  copyrights.]  ^  To  promote  the  Progress  of  Science 
and  useful  Arts,  by  securing  for  limited  Times  to  Authors  and  Inventors  the 
exclusive  Right  to  their  respective  Writings  and  Discoveries ; 


Right  of  Government  to  use  a  patent. — 

Congress  has  pro\dded  that  the  owner  of  any 
patented  invention  may  recover  reasonable 
compensation  by  suit  in  the  Court  of  Claims 
for  the  unauthorized  use  thereof  by  the  United 
States;  but  that  this  shall  not  apply  to  any 
device  invented  by  any  person  while  in  the 
employment  or  service  of  the  United  States, 
or  who  is  in  such  employment  or  ser'/ice  at  the 
time  of  making  claim,  or  to  the  assignee  of  any 
such  patentee.  (Act  June  25,  1910,  36  Stat., 
851,  as  amended  by  act  July  1,  1918,  40  Stat., 
705.  See  also  act  Oct.  6,  1917,  sec.  10  (i),  40 
Stat.,  422.) 

[Clause    9.  Inferior    courts.]  ^  To 
Supreme  Court ; 

Courts-martial. — ^This  clause  does  not  ap- 
ply to  military  and  naval  courts,  which  form  no 
part  of  the  judicial  system  of  the  United  States, 
but  are  instrumentalities  of  the  executive, 
created  by  Congress  under  its  power  "to  make 
rules  for  the  government  and  regulation  of  the 
land  and  naval  forces."  (See  Kurtz  v.  Moffitt, 
115  U.  S.,  500;  Dynes  v.  Hoover,  20  How.,  78; 
Ex  parte  Milligan,  4  Wall.,  137;  U.  S.  i).  Macken- 
zie, 30  Fed.  Cas.  No.  18313;  Ex  parte  Hender- 
son, 11  Fed.  Cas.  No.  6349;  Ex  parte  Dickey, 
204  Fed.  Rep.,  322;  C.  M.  O.  24,  1914,  p.  19.) 

Judicial  system  of  United  States. — The 
United  States  has  been  divided  by  Congress 
into  "judicial  districts"  and  "judicial  cir- 
cuits." Each  State  comprises  one  or  more 
judicial  districts,  and  in  each  district  there  is 
a  court  called  a  District  Court  for  which  there 
are  provided  one  or  more  district  judges,  with 
a  few  exceptions  in  which  only  one  judge  is 
provided  for  two  districts  in  the  same  State. 
There  are  nine  judicial  circuits,  each  of  which 
necessarily  embraces  a  number  of  judicial  dis- 
tricts. In  each  judicial  circuit  there  is  a  Cir- 
cuit Court  of  Appeals  consisting  of  three  judges, 
who  may  be  either  circuit  judges,  of  whom  two 


"It  has  been  determined  that  the  Govern- 
ment of  the  United  States  has  no  right  to  use  a 
patented  invention  without  compensation  to 
the  owner,  under  the  constitutional  provision 
that  in  the  exercise  of  the  power  of  eminent 
domain  it  may  take  private  property  for  public 
use,  but  not  without  making  just  compensation 
therefor.  (U.  S.  v.  Burns,  12  Wall.,  246;  Cam- 
meyer  v.  Newton,  94  U.  S.,  225;  James  v.  Camp- 
bell, 104  U.  S.,  356;  Hollister  v.  Benedict  Mfg. 
Co.,  113  U.  S.,  59;  U.  S.  v.  Palmer,  128  U.  S., 
262;  Belknap 7;.Schild,  161  U.S.,  10.)"  23  Op. 
Atty.  Gen.,  302.) 

constitute    Tribunals    inferior    to    the 


or  more  are  authorized  for  each  judicial  circuit, 
or  any  of  the  district  judges  within  the  circuit. 
In  addition,  the  justices  of  the  Supreme  Court, 
of  whom  there  are  nine  including  the  CMef 
Justice,  are  allotted  one  to  each  circuit,  and 
are  authorized  to  sit  as  judges  of  the  Circuit 
Court  of  Appeals  within  their  respective  cir- 
cuits, being  designated  as  the  "circuit  justice" 
for  the  circuit. 

Tlie  circuit  courts  of  appeal  for  the  respective 
circuits  exercise  appellate  jurisdiction  over  the 
district  courts  within  the  circuit,  except  that 
in  certain  cases  appeals  and  writs  of  error  may 
be  taken  direct  to  the  Supreme  Court.  The 
judgments  of  the  circuit  courts  of  appeal  are 
final  in  a  great  many  cases.  In  others,  appeals 
and  writs  of  error  may  be  taken  to  the  Supreme 
Court. 

In  addition.  Congress  has  established  special 
tribunals  of  very  limited  jurisdiction,  such  as 
consular  courts,  the  Court  of  Claims,  and  the 
Court  of  Customs  Appeals.  It  hasalso  pro- 
vided for  courts  in  Alaska,  District  of 
Columbia,  Hawaii,  Philippine  Islands,  and 
Porto  Rico.  (See  Judicial  Code,  act  Mar.  3, 
1911,  36  Stat.,  1087.) 


3T 


Art.  I,  Sec.  8. 


Pt.  1.  THE  CONSTITUTION. 


War  Power. 


[Clause  10.  Crimes  at  sea  and  offenses  against  law  of  nations.]  '°  To  define 
and  punish  Piracies  iiud  Felonies  committed  on  the  high  Seas,  and  Offenses 
ajrainst  the  Law  of  Nations ; 


The  judicial  power  of  the  United  States 
embraces  "all  cases  ol"  adnuralty  and  mariiime 
juiisdiclion."     (Art.  Ill,  eec.  2,  clause  1.) 

Piracies  and  felonies  committed  on  the 
liigli  eoas  are  defined  and  punished  by  the 
Criminal  Code,  act  of  March  4,  1909,  sections 
290-310  (35  iStat.,  1145-1148);  offenses  wilhin 
the  admiralty  and  maritime  jurisdiction  are  de- 
fined and  punished  by  same  act,  sees.  272-289 
(35  Stat.,  1142^1145.) 

Power  of  Congress  to  punish  offenses. — 
The  Constitution  contains  no  grant  to  Congress 
of  power  to  provide  for  the  punishment  of 
crimes  except  piracies  and  felonies  committed 
on  the  high  seas,  offenses  against  the  law  of 
nations,  treason,  and  counterfeiting  the  securi- 
ties and  current  coin  of  the  United  States. 
Nevertheless,  Congress  has  power  to  provide  for 
the  punishment  of  other  crimes  within  the  State 
or  within  the  territory  over  which  Congress  has 
plenary  and  exclusive  jurisdiction.  (Logan  v. 
U.  S.,  144  U.  S.,  283.) 

Any  act  of  Congress  which  plainly  and  di- 
rectly tends  to  enhance  the  respect  and  love  of 
the  citizen  for  the  institutions  of  his  country 
and  to  quicken  and  strengthen  his  motives  to 
defend  them,  and  which  is  germane  to  and 
intimately  connected  with  and  appropriate  to 
the  exercise  of  some  one  or  all  of  the  powers 
granted  by  the  Constitution  to  Congress,  must 
be  valid.  (U.  S.  v.  Gettysburg  Electric  R.  Co., 
160  U.S.,  679.) 

The  Government  of  the  Union  is  not  de- 
pendent on  the  States  for  the  execution  of  the 
great  powers  assigned  to  it;  its  means  are  ade- 
quate to  its  ends.  (McCulloch  v.  Maryland, 
4  Wheat.,  316,  424:_  In  re  Debs,  158  U.  S.,  578.) 

ImpUed  power  in  Congress  to  pass  laws  to 
define  and  punish  offenses  is  also  derived  from 
the  Constitutional  grant  to  Congress  to  declare 
war,  to  raise  and  support  armies,  to  provide 
and  maintain  a  na\^%  and  to  make  rules  for  the 
government  and  regulation  of  the  land  and 
naval  forces,  and  to  provide  for  organizing, 
arming  and  discipUning  the  militia  and  for  gov- 
erning of  such  part  of  them  as  may  be  employed 
in  the  public  service.  Like  implied  author- 
ity is  also  vested  in  Congress  from  the  power 
conferred  to  exercise  exclusive  jurisdiction  over 
places  purchased  by  the  consent  of  the  legisla- 

[  Clause  11.  Power  to  declare  war 
War,   grant   Letters   of   Marque   and 
Captures  on  Land  and  Water; 

I.  The  War  Power. 
II.  Property  of  Belligerents. 
III.  Acquisition  and  Government  op  Ter- 
ritory. 
Discipline  of  Army. 
Martial  Law. 


IV. 
V. 


I.  The  War  Power. 


Power  of  Congress  to  declare  war  and 
President's     power     as     Commander     in 


ture  of  the  State  in  which  the  same  shall  be  for 
the  erection  of  forts,  magazines,  arsenals,  dock 
yards  and  other  needful  buildings,  and  from 
the  clause  empowering  Congress  to  pass  all  laws 
which  shall  be  necessary  and  proper  for  carry- 
ing into  execution  the  foregoing  powers  and  all 
other  powers  vested  by  the  Constitution  in 
the  Government  of  the  United  States  or  any 
department  or  ofhcer  thereof.  (U.  S.  v.  Hall, 
98  U.  S.,  346;  see  also  U.  S.  v.  Bamow,  239 
U.  S.,  77.) 

Any  act  committed  with  a  view  to  evading 
the  legislation  of  Congress  passed  in  the  execu- 
tion of  any  of  its  powers,  or  of  fraudulently 
securing  the  benefit  of  such  legislation,  may 
properly  be  made  an  offense  against  the  United 
States.  But  an  act  committed  within  a  State, 
whether  for  a  good  or  a  bad  purpose,  or  whether 
with  an  honest  or  a  criminal  intent,  can  not 
be  made  an  offense  against  the  United  States 
unless  it  has  some  relation  to  the  execution  of  a 
power  of  Congress  or  to  some  matter  within  the 
jurisdiction  of  the  United  States.  An  act  not 
haying  any  such  relation  is  one  in  respect  to 
wliich  the  State  can  alone  legislate.  (U.  S.  v. 
Fox,  95  U.  S.,  672.) 

Miscellaneous  cases. — U.  S.  v.  White,  27 
Fed.  Rep.,  203  (not  necessary  for  Congress  to 
name  offense);  U.  S.  v.  Smith,  5  WTieat.,  157 
(not  necessary  for  Congress  to  define  the 
offense);  U.  S.  v.  Kelly,  11  ^Mieat.,  417  (judicial 
definition  of  offense  not  defined  by  Congress); 
U.  S.iJ.  Holmes,  5'WTieat.,  417  (offense  on  ves- 
sel held  by  phates);  U.  S.  v.  Bowers,  5  "^Tieat., 
198  (offense  committed  by  foreigner  on  foreign 
vessel  at  sea);  U.  S.  v.  Arjona,  120  U.  S.,  484 
(offense  against  law  of  nations).  See  also,  U.  S. 
t'.  Palmer,  3  WTieat.,  610;  U.  S.  v.  Wiltberger, 
5  WTieat.,  76;  U.  S.  v.  Pirates,  5  TMieat.,  184; 
U.  S.  1'.  Bevans,  3  Wheat.,  336. 

"That  the  laws  of  nations  constitute  a 
part  of  the  laws  of  the  land  is  established  from 
the  face  of  the  Constitution,  upon  prmciple  and 
by  authority.  But  the  laws  of  war  constitute 
much  the  greater  part  of  the  law  of  nations. 
Like  the  other  laws  of  nations,  they  exist  and 
are  of  binding  force  upon  the  departments  and 
citizens  of  the  Government,  though  not  defined 
by  any  law  of  Congress."  (11  Op.  Attv.  Gen., 
I   299.) 

and  regulate  captures,  etc.]  "To  declare 
Reprisal,    and   make   Kules   concerning 

Chief. — "Congress  has  the  power  not  only  to 
raise  and  support  and  govern  armies  but  to 
Tcleclare  war.  It  has,  therefore,  the  power  to 
provide  by  law  for  carrying  on  war.  This 
power  necessarily  extends  to  all  legislation 
essential  to  the  prosecution  of  war  with  \dgor 
and  success,  except  such  as  interferes  with  the 
command  of  forces  and  the  conduct  of  cam- 
paigns. That  power  and  duty  belong  to  the 
President  as  Commander  in  Chief.  Both  these 
powers  are  derived  from  the  Constitution,  but 
neither  is  defined  by  that  instrument.     Their 


38 


Wax  Power. 


Pt.  1.  TEE  CONSTITUTION. 


Art.  I,  Sec.  8. 


extent  must  be  determined  by  their  nature 
and  by  the  principles  of  our  institutions.  The 
power  to  make  the  necessary  laws  is  in  Con- 
gress, the  power  to  execute  in  the  President. 
Both  powers  imply  many  subordinate  and 
auxiliary  powers.  Each  includes  all  authority 
essential  to  its  due  exercise.  But  neither 
can  the  President  in  war  more  than  in 
peace  intrude  upon  the  proper  authority  of 
Congi-ess,  nor  Congi-ess  upon  the  proper  author- 
ity of  the  President.  Both  are  servants  of  the 
people,  whose  will  is  expressed  in  the  funda- 
mental law.  Congress  can  not  direct  the  con- 
duct of  campaigns,  nor  can  the  President  or  any 
commander  under  him,  without  the  sanction  of 
Congress,  institute  tribunals  for  the  trial  and 
pimishment  for  offenses,  either  of  soldiers  or 
civilians,  unless  in  cases  of  a  controlling  neces- 
sity which  justifies  what  it  compels,  or  at  least 
insures  acts  of  indemnity  from  the  justice  of 
the  legislature."  (Ex  parte  Milligan,  4  Wall., 
2, 139,  concurring  opinion  of  four  justices;  see 
also  Swaim  r.  U.  S.,  28  Ct.  Cls.,  173,  221, 
aflSrmed,  165 U.  S.,  553;  and  see  note  to  Art.  II, 
sec.  2,  clause  1.) 

Power  of  President  in  advance  of  con- 
gressional action. — "If  a  war  be  made  by 
invasion  of  a  foreign  nation,  the  President  is  not 
only  authorized  but  bound  to  resist  force  by 
force.  He  does  not  initiate  the  war,  but  is 
bound  to  accept  the  challenge  without  waiting 
for  any  special  legislative  authority."  ''Prize 
Cases,  2  Black,  635.) 

"WTiether  the  President  in  fulfilling  his 
duties  as  Commander  in  Chief  in  suppressing  an 
insurrection  has  met  with  such  armed_  hostile 
resistance  and  a  civil  war  of  such  alarming  pro- 
portions as  will  compel  him  to  accord  to  them 
the  character  of  belligerents  is  a  question  to  be 
decided  by  him,  and  this  court  must  be  gov- 
erned by  the  decisions  and  acts  of  the  political 
department  of  the  Government  to  which  this 
power  was  intrusted.  He  must  determine 
what  degree  of  force  the  crisis  demands.  The 
proclamation  of  blockade  is  itself  official  and 
conclusive  evidence  to  the  coiu"t  that  a  state 
of  war  existed  which  demanded  and  authorized 
a  recourse  to  such  a  measiu-e,  under  the  cir- 
cumstances peculiar  to  the  case."  (Prize 
Cases,  2  Black,  635.) 

"A  state  of  actual  war  may  exist  without 
any  formal  declaration  of  it  by  either  party; 
and  this  is  true  of  both  a  civil  and  a  foreign 
war."     (Prize  Cases,  2  Black,  635.) 

"That  a  foreign  nation,  or  insiu-rectionary 
body  of  citizens,  may  by  invasion  of  the  United 
States  or  by  other  acts  bring  about  a  condition 
of  affairs  which  will  warrant  the  President  in 
declaring,  in  advance  of  congressional  legisla- 
tion, that  a  state  of  war  exists,  was  asserted  by 
the  Supreme  Coiu-t  in  the  Prize  Cases."  (2 
Willoughby  Const.,  796.)  [That  power  of  de- 
claring war  is  exclusive  with  Congress,  see 
Perkins  v.  Rogers,  35  Ind.,  167.] 

"The  question  in  the  present  case  is.  When 
did  the  Kebellion  begin  and  end?  *  *  * 
The  proclamation  of  intended  blockade  by  the 
President  may,  therefore,  be  assumed  as  mark- 
ing the  first  of  these  dates,  and  the  proclama- 
tion that  the  war  had  closed  as  marking  the 
second."     (The    Protector,    12    Wall.,    700.) 


[The  President's  proclamations  of  intended 
blockade  were  issued  on  April  19  and  27,  1861; 
see  also  102  U.  S.,  426,  438;  9  Wall.,  71;  15  Op. 
Atty.  Gen.,  572,  574;  sees.  1997  and  4749,  R.  S.; 
proclamations  that  the  war  had  closed  were 
issued  on  April  2  and  August  20,  1866.] 

Extent  of  war  power. — "The  measures  to 
be  taken  in  carrying  on  war  and  to  suppress  in- 
surrection are  not  defined.  The  decision  of  all 
such  questions  rests  wholly  in  the  discretion  of 
those  to  whom  the  substantial  powers  involved 
are  confided  by  the  Constitution.  In  the 
latter  case  the  power  is  not  limited  to  \dctories 
in  the  field  and  to  the  dispersion  of  the  insur- 
rectionary forces.  It  carries  with  it  inherently 
the  power  to  guard  against  the  immediate  re- 
newal of  the  conflict  and  to  remedy  the  evils 
which  have  arisen  from  its  rise  and  progress." 
(Stewart  v.  Kahn,  11  Wall.,  493.) 

The  power  to  prohibit  the  liquor  traffic  as  a 
means  of  increasing  war  efficiency  is  part  of 
the  war  power  of  Congress.  (Hamilton  v. 
Kentucky  Distilleries  Co.,  251  U.  S.,  146;  Rup- 
pert  V.  Caffey,  251  U.  S.,  264.) 

Congress  has  the  authority  to  raise  and  sup- 
port armies  and  to  make  rules  and  regulations 
for  the  protection  of  the  health  and  welfare  of 
those  composing  them  against  the  evils  of 
prostitution,  and  may  leave  the  details  of  such 
regulations  to  the  Secretary  of  War.  A  citizen 
may  legally  be  convicted  of  setting  up  a  house 
of  ill  fame  within  five  miles  of  a  military 
station,  that  being  the  distance  designated  by 
the  Secretary  of  War  in  regulations  made  by 
him  under  the  act  of  May  18,  1917,  section  13 
(40  Stat.,  76).  (McKinley  v.  U.  S.,  249  U.  S., 
397.) 

II.  Property  of  Belligerents. 

Effect  of  declaration  of  war. — "The 
people  of  the  two  countries  become  immedi- 
ately the  enemies  of  each  other— all  intercourse, 
commercial  or  otherwise,  between  them  un- 
lawful—all contracts  existing  at  the  com- 
mencement of  the  war  suspended,  and  all  made 
during  its  existence  utterly  void.  The  insur- 
ance of  enemies'  property,  the  drawing  of  bills 
of  exchange  or  purchase  on  the  enemies'  coun- 
try, the  remission  of  bills  or  money  to  it  are 
illegal  and  void.  Existing  partnerships  be- 
tween citizens  or  subjects  of  the  two  countries 
are  dissolved  and,  in  fine,  interdiction  of  trade 
and  intercourse,  direct  or  indirect,  is  absolute 
and  complete  by  the  mere  force  and  effect  of 
war  itself.  All  the  property  of  the  people  of  the 
two  countries  on  land  or  sea  are  subject  to  cap- 
ture and  confiscation  by  the  adverse  party  as 
enemies'  property,  with  certain  qualifications 
as  it  respects  property  on  land  (Brown  i;.  U.  S . ,  8 
Cranch,  110) .  All  treaties  between  the  belliger- 
ent parties  are  annulled.  The  ports  of  the 
respective  countries  may  be  blockaded,  and 
letters  of  marque  and  reprisal  granted  as  rights 
of  war,  and  the  law  of  prizes  as  defined  by  the 
law  of  nations  comes  into  full  and  complete 
operation,  resulting  from  maritime  captures, 
jure  belli.  War  also  effects  a  change  in  the 
mutual  relations  of  all  States  or  countries,  not 
dii-ectly,  as  in  the  case  of  belligerents,  but  im- 
mediately and  indirectly,  though  they  have 
no  part  in  the  contest,  but  remain  neutral." 


39 


Art.  I,  Sec.  8. 


Pt.  1.   THE  CONSTITUTION. 


War  Power. 


(Prize  Cases,  2  Black,  635,  682,  dissenting 
oi)iiiion  Justice  Nelson;  see  also  McCormick  v. 
iluinphrov,  27  Ind.,  154;  Perkins  v.  Rogers,  35 
Ind..  1(17. ■) 

Confiscation  of  enemy  property. — "War 
gives  the  right  to  confiscate  l)ut  does  not  of  it- 
self confiscate  tlie  pro]ierty  of  tlie  enemy." 
(Brown  v.  U.  S.,  8  Crunch,  110;  see  also  Britton 
V.  Butler,  4  I'ed.  Cas.  No.  1903;  Wagner  v. 
Schooner  Juanita,  28  Fed.  Cas.  No.  17039; 
Miller  v.  U.  S.,  11  Wall.,  304;  Brown  v.  Hiatt, 
4  Fed  Cas.  No.  2011.) 

''^^^len  war  breaks  out  the  question  what 
shall  be  done  with  enemy  property  in  oiir 
countr\'  is  a  question  rather  of  policy  than  of 
law.  The  rule  which  we  apply  to  the  property 
of  our  enemy  will  be  applied  by  him  to  the 
property  of  our  citizens.  Like  all  other  ques- 
tions of  policy  it  is  proper  for  the  consideration 
of  a  department  which  can  modify  it  at  will; 
not  for  the  consideration  of  a  department  which 
can  pursue  only  the  law  as  it  is  written.  It  is 
proper  for  the  consideration  of  the  legislature, 
not  of  the  executive  or  judiciary."  (Brown 
V.  U.  S..  SCranch,  110.) 

Authority  of  military  commander  to 
seize  private  property. — "Private  property 
may  be  taken  by  a  military  commander  to  pre- 
vent it  from  falling  into  the  hands  of  the  enemy 
or  for  the  purpose  of  converting  it  to  the  use  of 
the  public;  but  the  danger  must  be  immediate 
and  impending,  or  the  necessity  urgent  for  the 
public  service  such  as  will  not  admit  of  delay 
and  where  the  action  of  the  civil  authority 
would  be  too  late  in  providing  the  means  which 
the  occasion  calls  for.  The  facts  as  they  ap- 
peared to  the  officer  must  fiirnish  the  rule  for 
the  application  of  these  principles.  But  the 
officer  can  not  take  possession  of  private  prop- 
erty for  the  purpose  of  insuring  the  success  of  a 
distant  expedition  upon  which  he  is  about  to 
march."    (Mitchell  v.  Harmony,  13  How.,  115.) 

"If  private  property  there  [in  conquered 
territory']  was  taken  by  an  officer  or  a  soldier  of 
the  occupying  army,  acting  in  his  military  char- 
acter, when  by  the  laws  of  war  or  the  proclama- 
tion of  the  commanding  general  it  should  have 
been  exempt  from  seizure,  the  owner  could 
haA-e  complained  to  that  commander,  who  might 
have  ordered  restitution  or  sent  the  offending 
party  before  a  military  tribunal,  as  circum- 
stances might  have  required,  or  he  could  have 
had  recourse  to  the  Government  for  redress. 
But  there  can  be  no  doubt  of  the  right  of  the 
Army  to  appropriate  any  property  there, 
although  belonging  to  private  individuals, 
which  was  necessary  for  its  support  or  conven- 
ient for  its  use.  This  was  a  belligerent  right 
which  was  not  extinguished  by  the  occupation 
of  the  country,  although  the  necessity  for  its 
exercise  was  thereby  lessened.  However  ex- 
empt from  seizure  on  other  grounds  private 
property  there  may  have  been,  it  was  always 
subject  to  be  appropriated  when  required  by 
the  necessities  or  convenience  of  the  Army, 
though  the  owTier  of  property  taken  in  such  case 
may  nave  had  a  jiist  claim  against  the  Govern- 
ment for  indemnity."  (Dow  v.  Johnson,  100 
U.  S.,  158, 167;  compare,  Heflebower  v.  U.  S., 
21  Ct.  Cls.,  2.37 ;  U.  S.  v.  Pacific  R.  Co.,  120  U.  S., 
239;  Alexander  v.  U.  S.,  39  Ct.  Cls.,  383;  13  Op. 
Atty.  Gen.,111;  Wigging's  Case,  3  Ct.  Cls.,  413.) 


"Extraordinary  and  unforeseen  occasions 
arise,  however,  beyond  a  doubt,  in  cases  of  ex- 
treme necessity  in  time  of  war  or  of  immediate 
or  impending  danger  in  which  pri\ate  ])roperty 
may  be  impressed  into  the  public  service  or 
may  be  seized  and  appropriated  to  the  public 
use  or  may  even  be  destroyed  without  the  con- 
sent of  the  owner.  *  *  *  The  rule  is  well  set- 
tled that  the  officer  taking  private  property 
for  such  a  purpose,  if  the  emergency  is  fully 
proved,  is  not  a  trespasser  and  that  the  Govern- 
ment is  bound  to  make  full  compensation  to 
the  owner."     (U.  S.  v.  Russell,  13  Wall.,  623.) 

Status  of  inhabitants  in  enemy  coun- 
try.— "The  district  of  country  declared  by  the 
constituted  authorities  during  the  late  Civil  War 
to  be  in  insurrection  against  the  Government  of 
the  United  States  was  enemy  territory,  and  all 
the  people  residing  within  such  district  were, 
according  to  public  law  and  for  all  purposes 
connected  with  the  prosecution  of  the  war, 
lial)le  to  be  treated  by  the  United  States, 
pending  the  war  and  while  they  remained 
within  the  lines  of  insurrection,  as  enemies 
without  reference  to  their  personal  sentiments 
and  dispositions."  (Ford  v.  Surget,  97  U.  S., 
594.) 

"It  is  said  that,  though  remaining  in  rebel 
territory,  Mrs.  Alexander  has  no  personal 
sympathy  with  the  rebel  cause  and  that  her 
property  therefore  can  not  be  regarded  as 
enemy  property;  but  the  court  can  not  inquire 
into  the  personal  character  and  dispositions  of 
individual  inhabitants  of  enemy  territory.  We 
must  be  governed  by  the  principle  of  public 
law  so  often  announced  by  this  Ijench  as  appli- 
cable alike  to  civil  and  international  wars,  that 
all  the  people  of  each  State  or  district  in  insur- 
rection against  the  United  States  must  be  re- 
garded as  enemies  until,  by  action  of  the 
legislature  and  the  executive,  or  otherwise, 
that  relation  is  thoroughly  and  ])ermanently 
changed."  (Mrs.  Alexander's  Cotton,  2  Wall., 
404;  see  also.  Miller  3'.  U.  S.,  11  Wall.,  268,  sus 
taining  laws  providing  for  confiscation  of  pri- 
vate property  owned  by  friendly  as  well  as 
hostile  inhabitants  of  the  Confederate  States.) 

III.  Acquisition  and  Government  of 
Territory. 

Power  to  acqviire  territory. — "The  genius 
and  character  of  our  institutions  are  peaceful, 
and  the  power  to  declare  war  was  not  conferred 
upon  Congress  for  the  purposes  of  aggression  or 
aggrandizement,  but  to  enable  the  General  Gov- 
ernment to  vindicate  by  arms  if  it  should  be- 
come necessary  its  own  rights  and  the  rights  of 
its  citizens.  A  war,  therefore,  declared  by 
Congress  can  never  be  presumed  to  ])e  waged 
for  the  purpose  of  conquest  or  the  acquisition 
of  territory;  nor  does  the  law  declaring  the  war 
imply  an  authority  to  the  President  to  enlarge 
the  limits  of  the  United  States  by  subjugating 
the  enemy's  territory.  The  United  States,  it 
is  true,  may  enlarge  its  boundaries  by  conquest 
or  treaty  and  may  demand  the  cession  of  ter- 
ritory as  a  condition  of  peace  in  order  to  in- 
demnify its  citizens  for  the  injuries  they  have 
suffered,  or  to  reimburse  the  Government  for 
the  expense  of  the  w^ar;  but  this  can  be  done 
only  by  the  treaty-making  power  or  the  legisla- 


te 


War  Power. 


Ft.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


tive  authority,  and  is  not  a  part  of  the  power 
conferred  upon  the  President  by  the  declara- 
tion of  war.  His  duty  and  power  are  purely 
military.  *  *  *  He  may  invade  the  hostile 
country  and  subject  it  to  the  sovereignty  and 
authority  of  the  United  States;  but  his  con- 
quests do  not  enlarge  the  boundaries  of  this 
Union  nor  extend  the  operations  of  our  insti- 
tutions and  laws  beyond  the  limits  before 
assigned  to  them  by  the  legislative  power." 
(Fleming  v.  Page,  9  How.,  603.) 

"The  Constitution  confers  absolutely  upon 
the  Government  of  the  Union  the  power  of 
making  war  and  of  making  treaties;  conse- 
quently that  Government  possesses  the  power 
of  acquiring  territory,  either  by  conquest  or 
treaty."  (American  Insurance  Co.  v.  Canter, 
1  Pet.,  511.) 

"The  war  power  and  the  treaty-making 
power  each  carries  with  it  authority  to  acquire 
new  territory."  (Stewart  v.  Kahn,  11  Wall., 
493.) 

'•The  power  to  acquire  territory,  either  by 
conquest  or  treaty,  is  vested  by  the  Consti- 
tution in  the  United  States."  (U.  S.  v.  Huck- 
abee,  16  Wall..  414.) 

The  port  of  Tampico,  Mexico,  while  in  the 
military  possession  of  the  United  _  States  and 
governed  by  its  military  authorities  acting 
under  the  orders  of  the  President,  was  not  a 
part  of  the  United  States  and  did  not  cease  to 
be  a  foreign  country  in  the  sense  in  which 
these  words  are  used  in  the  acts  of  Congress. 
'•It  is  true  that  when  Tampico  had  been  cap- 
tured and  the  state  of  Tamaulipas  subjugated, 
other  nations  were  bound  to  regard  the  country 
while  our  possession  continued  as  the  territory 
of  the  United  States  and  to  respect  it  as  such. 

*  *  *  As  regards  all  other  nations  it  was  a  part 
of  the  United  States  and  belonged  -to  them  as 
exclusively  as  the  territory  included  in  our 
established  boundaries.  But  yet  it  was  not  a 
part  of  this  Union.  For  every  nation  which 
acquires  territory  by  treaty  or  conquest  holds 
it  according  to  its  own  institutions  and  laws. 

*  *  *  The  power  of  the  President  under  which 
Tampico  and  the  state  of  Tamaulipas  were 
conquered  and  held  in  subjection  was  simply 
that  of  a  military  commander  prosecuting  a 
war  waged  against  a  public  enemy  hy  the  au- 
thority of  his  Government."  Tampico  there- 
fore continued  to  be  a  foreign  port  "nor  did 
our  laws  extend  over  it."  (Fleming  v.  Page, 
9  How.,  603.) 

Status  of  Porto  Rico  while  under  military 
government  pre\'ious  to  ratification  of  treaty 
of  peace  ceding  the  island  to  the  United  States: 
'"During  this  period  the  United  States  and 
Porto  Rico  were  still  foreign  countries  with 
respect  to  each  other.  *  *  *  The  fact  that  not- 
withstanding the  military  occupation  of  the 
United  States  Porto  Rico  remained  a  foreign 
country  within  the  revenue  laws  is  established 
by  the  case  of  Fleming  v.  Page."  (Dooley  v. 
U.  S.,182U.  S.,222.) 

"Cuba  is  none  tlie  less  foreign  territorj^ 
■within  the  meaning  of  the  act  of  Congi-ess, 
because  it  is  under  a  military  government 
appointed  by  and  representing  the  President 
in  the  work  of  assisting  the  inhabitants  of  that 
island  to  establish  a  government  of  their  own 


under  which  as  a  free  and  independent  people 
they  may  control  their  own  affairs  without 
interference  by  other  nations."  As  between 
the  United  States  and  all  foreign  nations,  Cul)a 
was  to  be  treated  as  if  it  were  conquered  ter- 
ritory. '"But  as  between  the  United  States 
and  Cuba,  that  island  is  territory  held  in  trust 
for  the  inhabitants  of  Cuba  to  whom  it  right- 
fully belongs."  (Neely  r.  Henkel,  180  U.  S., 
109;  see  also  23  Op.  Atty.  Gen.,  120.) 

Government  of  conquered  territory  dur- 
ing war. — By  the  conquest  and  military  occu- 
pation of  the  port  of  Castine,  Me.,  by  the  Brit- 
ish during  the  War  of  1812,  "the  enemy  ac- 
quired that  firm  possession  which  enabled  him 
to  exercise  the  fullest  rights  of  sovereignty  over 
that  place.  The  sovereignty  of  the  United 
States  over  the  territory  was,  of  course,  sus- 
pended and  the  laws  of  the  United  States  could 
no  longer  be  rightfully  enforced  there  or  be 
obligator  upon  the  inhabitants  who  remained 
and  submitted  to  the  conquerors.  By  the  sur- 
render the  inhabitants  passed  under  a  tempo- 
rary allegiance  to  the  British  Government  and 
were  bound  by  such  laws,  and  such  only,  as  it 
chose  to  recognize  and  impose.  From  the 
nature  of  the  case  no  other  laws  could  be  ol)- 
ligator^'  upon  them;  for  where  there  is  no  pro- 
tection or  allegiance  or  sovereignty  there  can 
be  no  claim  to  obedience."  (U.  S.  v.  Rice,  4 
Wheat.,  246.) 

"Although  the  city  of  New  Orleans  wag  con- 
quered and  taken  possession  of  in  a  civil  war 
waged  on  the  part  of  the  United  States  to  put 
do'ma  an  insurrection  and  restore  the  supremacy 
of  the  National  Government  in  the  Confederate 
States,  that  Government  had  the  same  power 
and  rights  in  territoiy  held  by  conquest  as  if 
the  territory  had  belonged  to  a  foreign  country 
and  had  been  subjugated  in  a  foreign  war. 
*  *  *  In  such  cases  the  conquering  power 
has  a  right  to  displace  the  preexisting  authority 
and  to  assume  to  such  an  extent  as  it  may  deem 
proper  the  exercise  by  itself  of  all  the  powers 
and  functions  of  government.  It  may  appoint 
all  the  necessary  officers  and  clothe  them  with 
designated  powers,  larger  or  smaller,  according 
to  its  pleasure.  It  may  prescribe  the  revenues 
to  be  paid  and  apply  them  to  its  own  use  or 
otherwise.  It  may  do  anything  necessary  to 
strengthen  itself  and  weaken  the  enemy. 
There  is  no  limit  to  the  powers  that  may  be 
exerted  in  such  cases  saxe  those  which  are 
foimd  in  the  laws  and  usages  of  war.  *  *  * 
In  such  cases  the  laws  of  wai-  take  the  place  of 
the  Constitution  and  laws  of  the  United  States 
as  applied  in  time  of  peace."  (New  Orleans  v. 
New  York  Mail  S.  S.  Co.,  20  Wall.,  387;  Dooley 
V.  U.  S.,  182  U.S.,  222.) 

"WTiile  his  [military  commander's]  power  is 
necessarily  despotic,  this  must  be  imderstood 
rather  in  an  administrative  than  in  a  legisla- 
tive sense.  Wliile  in  legislating  for  a  con- 
quered country  he  may  disregard  the  laws  of 
that  country,  he  is  not  wholly  above  the  la'ws 
of  his  own.  *  *  *  His  power  to  adminis- 
ter would  be  absolute,  but  his  power  to  legis- 
late would  not  be  •without  certain  restrictions — 
in  other  words,  they  would  not  extend  be- 
yond the  necessities  of  the  case.  *  *  *  .  I* 
was  said  that  the  courts  established  in  Mexico 


41 


Art.  I,  Sec.  8. 


Ft.  1.   THE  CONSTITUTION. 


War  Power. 


duruiR  the  war  'were  nothuig  more  than  the 
apentii  of  the  military-  power  to  a.s.sist  it  in  pre- 
eervLnp  order  iji  tlie  conquered  territoiy  and  to 
protect  the  ijihabitants  in  their  persons  ajid 
property  while  it  was  occupied  by  the  Ameri- 
(■;ui  arms.  They  were  subject  to  the  militar\^ 
power  luid  tlieir  deci.sions  under  its  control 
whenever  the  commandinfi;  officer  thou<i;ht 
proper  to  interfere.  They  were  not  courts  of 
the  United  States  and  had  no  rij^ht  to  adjudi- 
cate upon  a  question  of  'prize  or  no  prize,' 
althoupii  Congress  in  the  exercise  of  its  general 
authority  in  relation  to  the  national  courts 
would  have  power  to  validate  their  action." 
(Dooley  v.  U.  S.,  182  U.  S.,  222.) 

"So  long  as  the  war  continued  it  can  not  be 
denied  that  he  [the  President]  might  institute 
temporary  goA-ernments  in  insurgent  districts 
occupied  by  the  national  forces  or  take  meas- 
ures in  any  States  for  the  restoration  of  State 
goA'ernments  faithful  to  the  Union,  employing, 
however,  in  such  efforts  only  such  means  and 
agents  as  were  authorized  bv  constitutional 
laws."     (Texas  v.  White,  7  Wall.,  700.) 

"The  mimicipal  laws — that  is,  such  as  affect 
private  rights  of  persons  and  property  and  pro- 
vide for  the  pimishment  of  crime — are  gener- 
ally allowed  to  remain  in  force  and  to  be  ad- 
ministered by  the  ordinary  tribunals  as  they 
were  administered  before  the  occupation. 
They  are  considered  as  continuing  unless  sus- 
pended or  superseded  by  the  occupying  bellig- 
erent."_    (Dow  V.  Johnson,  100  U.  S.,  158.) 

"While  we  see  no  reason  to  doubt  the  con- 
clusion of  the  court  that  the  port  of  Tampico 
[during  its  occupation  by  the  United  States  in 
the  Mexican  War]  was  still  a  foreign  port,  it  is 
not  perceived  why  the  fact  that  there  was  no 
act  of  Congress  establishing  a  customhouse 
there  or  authorizing  the  appointment  of  a  col- 
lector should  have  prevented  the  collector 
appointed  by  the  military  commander  from 
granting  the  usual  documents  required  to  be 
issued  to  a  vessel  engaged  in  the  coasting  trade. 
A  collector,  though  appointed  by  a  miLitai-y 
commander,  may  be  presumed  to  have  the 
ordinary  power  of  a  collector  under  an  act  of 
Congress,  with  authority  to  grant  clearances  to 
ports  within  the  United  States,  though,  of 
course,  he  would  have  no  power  to  make  a 
domestic  port  of  what  was  in  reality  a  foreign 
port."     (De  Lima  v.  Bidwell,  182  U.  S.,  1.) 

Government  of  conquered  and  ceded  ter- 
ritory after  war. — See  note  to  Article  IV, 
section  3,  clause  2. 

IV.  Discipline  op  Army. 

Jurisdiction  over  persons  in  military 
service  during  war. — "The  question  here  is, 
What  is  the  law  which  governs  an  army  invad- 
ing an  enemy's  country?  It  is  not  the  ci\-il 
law  of  the  invaded  coimtry.  It  is  not  the  civil 
law  of  the  conquering  country.  It  is  military 
law — the  law  of  war — and  its  supremacy  for  the 
protection  of  the  officers  and  soldiers  of  the 
Army  when  in  service  in  the  field  in  the  ene- 
my's country  is  as  essential  to  the  efficiency  of 
the  Army  as  the  supremacy  of  the  civil  law  at 
home  and  in  time  of  peace  is  essential  to  the 
preservation  of  liberty."  (Dow  v.  Johnson, 
100  U.  S.,  158,  170.) 


"This  doctrine  of  nonliability  to  the  tribu- 
nals of  the  invaded  country  for  acts  of  warfare 
is  as  applicable  to  membere  of  the  Confederate 
Army  when  in  Pennsylvania  as  to  members  of 
the  National  Army  when  in  the  insurgent 
States.  The  officers  or  soldiers  of  neither  Army 
could  be  called  to  account  civilly  or  crimhially 
in  tliose  tribunals  for  such  acts,  whether  those 
acts  resulted  in  the  destruction  of  property 
or  the  destruction  of  life.  Nor  could  they 
be  required  by  those  tribunals  to  explain  or 
justify  their  conduct  upon  any  averment  of  the 
injured  party  that  the  acts  complained  of  were 
unauthorized  by  the  necessities  of  war." 
(Dow  V.  Johnson,  100  U.  S.,  158,  1G9.) 

Courts-martial  did  not  have  exclusive  juris- 
diction to  try  persons  in  the  Army  for  offenses 
punishable  by  State  laws  during  the  Civil  War 
while  they  were  in  States  "occupying  as  mem- 
bers of  the  Union  their  normal  and  constitu- 
tional relation  to  the  Federal  Government,  in 
which  the  supremacy  of  that  Government  was 
recognized  and  the  civil  courts  were  open  and 
in  the  undisturbed  exercise  of  tlieir  jurisdiction. 
WTien  the  armies  of  the  United  States  were  in 
the  territory  of  insurgent  States,  banded  to- 
gether in  hostility  to  the  National  Government, 
and  making  war  against  it — in  other  words, 
when  the  armies  of  the  United  States  were  in  the 
enemy's  country — the  military  tribunals  men- 
tioned had  imder  the  laws  of  war  and  the 
authority  conferred  by  the  section  named  ex- 
clusive jurisdiction  to  try  and  punish  offenses 
of  every  grade  committed  by  persons  in  the 
military  service.  Officers  and  soldiers  of  the 
armies  of  the  Union  were  not  subject  during  the 
war  to  the  laws  of  the  enemy  or  amenable  to  his 
tribunals  for  offenses  committed  by  them. 
They  were  answerable  only  to  tlieir  o"wn  Gov- 
ernment and  only  by  its  laws  as  enforced  by  its 
armies  could  they  be  punished.  *  *  *  The 
fact  that  when  the  offense  was  committed  for 
which  the  defendant  was  indicted  the  State  of 
Tennessee  was  in  the  military  occupation  of  the 
United  States  with  a  military  governor  at  its 
head  appointed  by  the  President  can  not  alter 
this  conclusion.  Tennessee  was  one  of  the  in- 
surgent States  forming  the  organization  known 
as  the  Confederate  States,  against  which  the 
war  was  waged.  Her  territory  was  enemy's 
coimtry,  and  its  character  in  this  respect  was  not 
changed  until  long  afterwards  *  *  *.  The 
laws  of  the  State  for  the  punishment  of  crime 
were  continued  in  force  only  for  the  protection 
and  benefit  of  its  own  people."  (Coleman  v. 
Tennessee,  97  U.  S.,  513,  515;  see  also  Tennes- 
see V.  Hibdom,  23  Fed.  Rep.,  795;  24  Op.  Atty. 
Gen.,  570.) 

When  the  armies  of  the  United  States  are  in 
the  enemy's  country,  the  established  military 
tribunals  of  the  United  States  have  under  the 
laws  of  war  and  statutory  authority  exclusive 
jurisdiction  to  try  and  pimish  offenses  of  every 
grade  committed  by  persons  in  the  military 
service.  (24  Op.  Atty.  Gen.,  570,  citing  Cole- 
man V.  Tennessee,  97  U.  S.,  509.) 

"While  it  is  true  that  the  jurisdiction  of  mili- 
tary tribunals  is  not  exclusive  in  time  of  peace 
and  in  territory  where  the  supremacy  of  the 
United  States  is  recognized  and  the  relations 
between  the  local  government  and  the  National 
Government  normal,  and  where  also  the  exer- 


42 


War  Power. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


cise  of  jurisdiction  of  the  local  ciAdl  courts  is  not 
disturbed,  it  is  equally  true  that  when  the 
armies  of  the  United  States  are  in  hostile  terri- 
tory, and  as  in  the  present  case  engaged  in 
actual  warfare,  the  jurisdiction  of  such  tribunals 
over  such  offenses  is  exclusive ;  and  it  is  evident 
from  the  decisions  cited  that  in  reference  to  the 
present  question  [Philippine  insurrection]  the 
country  was  none  the  less  'enemy's  country' 
and  the  territory  hostile  because  it  was  harassed 
by  insiurection  against  a  sovereignty  perfect  in 
law  rather  than  attacked  or  defended  by  a  recog- 
nized belligerent."     (24  Op.  Atty.  Gen.,  570.) 

"It  is  well  settled  that  a  foreign  army  per- 
mitted to  march  through  a  friendly  country  or 
to  be  stationed  in  it  by  authority  of  its  sovereign 
or  government  is  exempt  from  its  civil  and 
criminal  jurisdiction  *  *  *.  Much  more 
must  this  exemption  prevail  where  a  hostile 
army  invades  an  enemy's  country.  There 
would  be  something  singularly  absurd  in  per- 
mitting an  officer  or  soldier  of  an  invading  army 
to  be  tried  by  his  enemy  whose  country  it  had 
invaded.  The  same  reasons  for  his  exemption 
from  criminal  prosecution  apply  to  civil  pro- 
ceedings. There  would  be  as  much  incon- 
gruity and  as  little  likelihood  of  freedom  from 
the  irritations  of  the  war  in  civil  as  in  criminal 
proceedings  prosecuted  during  its  continuance. 
In  both  instances,  from  the  very  nature  of  war 
the  tribunals  of  the  enemy  must  be  without 
jurisdiction  to  sit  in  judgment  upon  the  military 
conduct  of  the  officers  and  soldiers  of  the  in- 
vading army  *  *  *.  It  is  manifest  that  if 
officers  or  soldiers  of  the  Army  could  be  required 
to  leave  their  posts  and  troops  upon  the  sum- 
mons of  every  local  tribunal  on  pain  of  a  judg- 
ment by  default  against  them  which  at  the  ter- 
mination of  hostilities  could  be  enforced  by  suit 
in  their  own  States,  the  efficiency  of  the  Army  as 
a  hostile  force  would  be  utterly  destroyed." 
(Dow  V.  Johnson,  100  U.  S.,  158,  165.) 

"  Nor  is  the  position  of  the  invading  belligerent 
affected  or  his  relation  to  the  local  tribunals 
changed  by  his  temporary  occupation  and 
domination  of  any  portion  of  the  enemy's  coun- 
try *  *  *_  Ti^e  mimicipal  laws — that  ia, 
such  as  affect  private  rights  of  persons  and 
property  and  pro\dde  for  the  punishment  of 
crime — are  generally  allowed  to  remain  in  force 
and  to  be  administered  by  the  ordinary  tribu- 
nals as  they  were  administered  before  the  occu- 
pation. They  are  considered  as  continuing  un- 
less suspended  or  superseded  by  the  occupying 
belligerent.  But  their  continued  enforcement 
is  not  for  the  protection  or  control  of  the  army 
or  its  officers  or  soldiers.  These  remain  subject 
to  the  laws  of  war  and  are  responsible  for  their 
conduct  only  to  their  own  government  and  the 
tribunals  by  which  those  laws  are  admmistered. 
If  guilty  of  wanton  cruelty  to  persons  or  of  un- 
necessary spoliation  of  property  or  of  other  acts 
not  authorized  by  the  laws  of  war,  they  may  be 
tried  and  pimished  by  the  military  tribunals. 
They  are  amenable  to  no  other  tribunal  except 
that  of  public  opinion,  which  it  is  to  be  hoped 
will  always  brand  with  infamy  all  who  author- 
ize or  sanction  acts  of  cruelty  and  oppression." 
(Dow  V.  Johnson,  100  U.  S.,  158;  see  also  24  Op. 
Atty.  Gen.,  570.) 


An  officer  of  the  Army  may  be  sued  in  the 
courts  of  the  United  States  for  vmauthorized 
seizure  of  the  property  of  a  citizen  traveling 
with  the  Army  as  a  trader  during  the  war  with 
Mexico.  "The  trespass  was  committed  out  of 
the  limits  of  the  United  States.  But  an  action 
may  be  maintained  in  the  circuit  court  for  any 
district  in  which  the  defendant  may  be  found 
upon  process  against  him  where  the  citizenship 
of  the  respective  parties  gives  jurisdiction  to  a 
court  of  the  United  States.  "  (Mitchell  v.  Har- 
mony, 13  How.,  115.) 

The  validity  of  a  seizure  by  a  United  States 
officer  in  command  of  troops  while  in  an  insur- 
gent State  could  not  be  tried  in  a  municipal 
court  in  a  common-law  proceeding,  where  the 
property  seized  belonged  to  an  enemy,  as  such 
seizure  was  an  act  of  war  and  no  action  can  be 
maintained  in  such  court  against  the  captor  of 
booty.  This  conclusion  does  not  conflict  with 
the  ruling  of  the  Supreme  Court  in  Mitchell  v. 
Harmony,  as  there  the  property  in  question  be- 
longed to  a  citizen  and  not  to  an  enemy.  (Cool- 
idge  V.  Guthrie,  6  Fed.  Cas.  No.  3185') 

An  officer  of  the  Federal  Army  was  sued  in 
New  Orleans  for  seizure  of  private  property  by 
a  subordinate  officer  under  his  authority, 
alleged  to  be  a  wanton  abuse  of  power.  Judg- 
ment was  entered  against  defendant,  with  in- 
terest and  costs.  Suit  was  brought  on  this 
judgment  in  the  Federal  court  for  the  district 
of  Maine  and  judgment  entered  by  that  court 
for  $2,659.67  and  costs.  This  was  reversed  by 
the  Supreme  Court  on  ground  that  lower  courts 
were  without  jurisdiction.  (Dow  v.  Johnson, 
100  U.  S.,  158.) 

An  officer  in  the  Army  of  the  United  States 
who,  while  operating  in  the  Philippines  during 
the  insurrection  in  those  islands  and  while  the 
government  of  military  occupation  was  in  force 
therein,  committed  homicide  against  a  native 
of  those  islands,  was  amenable  only  to  the  laws 
of  war  and  could  not  be  tried  by  the  civil  courts 
of  those  islands  or  of  the  United  States;  and 
having  left  the  military  service,  he  could  not  be 
tried  for  the  offense  by  a  military  court.  A 
court-martial  has  no  jurisdiction  over  an  officer 
after  he  has  left  the  service,  and  a  military  com- 
mission has  no  jurisdiction  to  try  such  officer 
after  peace  has  been  proclaimed.  (24  Op. 
Atty.  Gen.,  570.)  [^\^lile  the  United  States 
was  not  at  war  with  any  recognized  power  dur- 
ing the  Philippine  insurrection,  nevertheless  a 
state  of  war  existed  for  certain  purposes  as  to 
all  the  military  forces  of  the  United  States 
directly  engaged  in  the  suppression  of  said  in- 
surrection (7  Comp.  Dec,  345);  see  note  to 
section  290,  Revised  Statutes.] 

An  officer  of  United  States  Volunteers  was 
charged  with  having  deliberately  murdered  a 
brother  officer  during  the  Mexican  War  at  a 
place  in  Mexico  occupied  by  the  United  States 
troops  and  under  the  jurisdiction  of  the  United 
States.  He  escaped  to  the  United  States  during 
the  progress  of  his  trial  by  a  military  commis- 
sion. Held,  that  he  could  not  be  tried  by  any 
civil  court  of  the  United  States;  and  the  vol- 
unteer forces  to  which  he  belonged  having  been 
disbanded  and  mustered  out  of  the  service,  he 
could  not  be  brought  to  trial  by  a  military  court 


54641°— 22- 


43 


Art.  I,  Sec.  8. 


rt.  1.   THE  CONSTITUTION. 


War  Power. 


as  for  a  military  offense.  "However  much  it  is 
to  be  rej^rotted  that  the  extraordinary  case  of 
Capt.  Foster  should  escape  a  judicinf  or  mili- 
tary investigation,  it  is  of  iiifiiiitoly  hit^hor 
moment  that  the  constitutional  princinlos  of 
the  Government  as  wisely  exi)()undcd  oy  the 
judiciary  should  be  upheld  and  enforced.  If 
the  country  hereafter  should  be  likely  to  be 
placed  in  circumstances  under  which  a  similar 
case  might  arise.  Congress  can  easily  pro\'ide 
against  a  recurrence  of  the  diliiculties  of  the 
present  case."     (5  Op.  Atty.  Gen.,  55.) 

V.  Martial  Law. 

Military  jurisdiction  over  civilians  in 
time  of  war. — "There  are  under  the  Consti- 
tution three  kinds  of  military  juri.sdiction:  One 
to  be  exercised  both  in  peace  and  war;  another 
to  be  exercise<l  in  time  of  foreign  war  without 
the  boimdaries  of  the  United  States,  or  in  time 
of  rebellion  and  civil  war  within  the  States  or 
districts  occujiied  by  rebels  treated  as  belliger- 
ents; and  a  third  to  be  exercised  in  time  of 
invasion  or  insurrection  within  the  limits  of  the 
United  States,  or  during  rebellii)n  within  the 
limits  of  States  maintaining  adhesion  to  the 
National  Government,  when  the  i)ublic  danger 
requires  its  exercise.  The  first  of  these  may  be 
called  jurisdiction  under  the  military  law,  and 
is  found  in  acts  of  Congress  prescribing  rules 
and  articles  of  war,  or  otherwise  providing  for 
the  government  of  the  national  forces;  the  sec- 
ond may  be  distinguished  as  military  govern- 
ment, superseding,  as  far  as  may  be  deemed 
expedient,  the  local  law,  and  exercised  by  the 
military  commander,  under  the  direction  of  the 
President,  Avith  the  express  or  iniplied  sanction 
of  Congress:  while  the  third  may  be  denomi- 
nated martial  law  proper,  and  is  called  into 
action  by  Congress  or  tem]iorarily  when  the 
action  of  Congress  can  not  be  invited,  in  the 
case  of  justifying  or  excusing  peril,  by  the 
President,  in  times  of  insurrection  or  invasion, 
or  of  civil  or  foreign  war,  within  districts  or 
localities  whose  ordinary  law  no  longer  ade- 
quately secure?  pubUc  safety  and  private 
rights."  (Ex  parte  Milligan,  4  Wall.,  2,  141, 
concurring  opinion  of  four  justices.) 

"  Martial  law  is  the  law  of  military  ne- 
cessity in  the  actual  presence  of  war.  It  is 
administered  by  the  general  of  the  Army,  and 
is  in  fact  his  will."  (U.  S.  v.  Diekelman,  92 
U.  S.,  520.  For  other  definitions,  see  8  Op. 
Atty.  Gen.,  365;  In  re  Egan,  8  Fed.  Caa.  No. 
4303;  In  re  Ezeta,  C2  Fed.  Rep.,  972.) 

"\Miat  has  been  called  the  paramount  law 
of  self-defense,  common  to  all  countries,  has 
established  the  rule  that  whatever  force  is 
necessary  is  also  lawful.  'Whatever  force  is 
necessary  for  self-defense  is  also  lawful.  This 
law,  applied  nationally,  is  the  martial  law, 
which  is  an  offshoot  of  the  common  law,  and 
although  ordinarily  dormant  in  peace,  may  be 
called  forth  by  insurrection  or  invasion.' " 
(Commonwealth  v.  Shortall,  206  Pa.  St.,  165; 
65  L.  R.  A.,  193.) 

"The  right  in  the  miUtary  officer  to  govern 
by  martial  law,  as  we  have  said,  arises  upon 
the  fact  of  existing  or  immediately  imjiending 
force  at  a  given  place  and  time,  against  legal 
authority,  which  the  civil  authority  is  incom- 


petent to  overcome;  and  it  is  exercised  pre- 
cisely u])on  the  ])rinciple  on  which  self-defense 
justiiies  the  u.se  of  force  by  individuals.  *  *  * 
That  is,  thero  are  cases  where  force  mu.st  be 
resisted  by  force,  instead  of  waiting  for  the 
civil  authorities.  *  *  *  This  is  the  doc- 
trine expressed  by  the  maxim,  inter  arma  silent 
leges ;  *  *  *  that  is,  that  in  the  midst  of  ac- 
tual force,  for  arma  is  used  as  meaning  force,  the 
law  is  silent."     (Griffin  v.  Wilcox,  2lTnd.,370.) 

"  As  has  been  said  by  a  distinguishod  civiUan, 
'when  foreign  invasion  or  civil  war  renders  it 
impo.ssible  for  courts  of  law  to  sit,  or  to  enforce 
the  execution  of  their  judgments,  it  becomes 
necessary  to  find  some  rude  substitute  for  them 
and  to  employ  for  that  purpose  the  military, 
which  is  the  only  remaining  force  in  the  com- 
munity; and,  while  the  laws  are  silenced  by 
the  noise  of  arms,  the  rulers  of  the  armed  force 
must  punish,  as  equitably  as  they  can,  those 
Climes  which  threaten  their  own  safety  and  that 
of  society;  but  no  longer. '  This  necessity  must 
be  shown  affirmatively  by  the  party  assuming 
to  exercise  this  extraordinary  and  irregular 
power  over  the  Ufe,  liberty,  and  property  of  the 
citizen,  whenever  it  is  called  in  question." 
(In  re  Egan,  8  Fed.  Cas.  No.  4303.) 

"Public  danger  warrants  the  substitution  of 
executive  process  for  judicial  process."  (Mover 
V.  Peabody,  212  U.  S.,  78.) 

"Unquestionably  a  State  may  use  its  military 
power  to  put  down  an  armed  insurrection  too 
strong  to  be  controlled  by  the  civil  authority. 
The  power  is  essential  to  the  existence  of  every 
government,  essential  to  the  preservation  of 
order  and  free  institutions,  and  is  as  necessary 
to  the  States  of  this  Union  as  to  any  other  gov- 
ernment. The  State  itself  must  determine 
whi  t  degree  of  force  the  crisis  demands.  And 
if  the  government  of  Rhode  Island  deemed  the 
armed  opposition  so  formidable  and  so  ramified 
throughout  the  State  as  to  require  the  use  of 
the  military  force  and  the  declaration  of  martial 
law,  we  see  no  ground  upon  which  this  court 
can  question  its  authority.  It  was  a  state  of 
war,  and  the  established  government  resorted 
to  the  rights  and  usages  of  war  to  maintain  itself 
and  to  overcome  the  unlawful  opposition." 
(Luther  v.  Borden,  7  How.,  1.) 

"It  is  not  unfrequently  said  that  the  com- 
munity must  be  either  in  a  state  of  peace  or 
war,  as  there  is  no  intermediate  state.  But 
from  the  point  of  view  now  under  consideration 
this  is  an  error.  There  may  be  peace  for  all  the 
ordinary  purposes  of  life  and  yet  a  state  of  dis- 
order, violence,  and  danger  in  special  directions, 
which,  though  not  technically  war,  has  in  its 
limited  field  the  same  effect,  and  if  important 
enough  to  call  for  martial  law  for  suppression 
is  not  distinguishable,  so  far  as  the  powers  of 
the  commanding  officer  are  concerned,  from 
actual  war.  The  condition  in  fact  exists,  and 
the  law  must  recognize  it,  no  matter  how  opin- 
ions may  differ  as  to  what  it  should  be  most  cor- 
rectly called."  (Commonwealth  v.  Shortall, 
206  Pa.  St.,  165;  65  L.  R.  A.,  193.) 

Martial  law  "is  called  into  action  by  Con- 
gress, or  temporarily,  when  the  action  of  Con- 
gress can  not  be  invited,  in  the  case  of  justifying 
or  excusing  peril,  by  the  President."  (Ex 
parte  Milligan,  4  Wall.,  2,  concurring  opinion; 
see  also  Despan  v.  Olney,  7  Fed.  Cas.  No.  3822.) 


44 


War  Power. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


"  It  is  to  be  borne  in  mind  that  this  power  is 
not  one  to  be  exercised  only  by  the  highest 
officers  of  the  Government,  in  whoae  hands  it 
might  be  exercised  with  moderation.  It  is 
claimed  for  the  President  as  Commander  in 
Chief  and  as  incident  to  a  state  of  war.  But  if 
it  exists  at  all  it  exists  as  the  law  of  war  or  mar- 
tial law,  and  may  be  exercised  by  the  military 
officer  in  command  of  any  district  without  ref- 
erence to  his  rank,  as  rightfully  as  by  the  Presi- 
dent himself.  He  might  be  afraid  to  exercise 
it  without  orders  from  his  superioi,  but  if  it 
exists  at  all  it  belongs  to  him  as  well  as  to  the 
President."  (Johnson  v.  Jones,  44  111.,  143; 
92  Am.  Dec,  159.) 

Limitations  upon  exercise  of  martial 
law. — ' '  Martial  law  can  not  arise  from  a  threat- 
ened invasion.  The  necessity  must  be  actual 
and  present;  the  invasion  real,  such  as  effectu- 
ally closes  the  courts  and  deposes  the  civil 
administration.  *  *  *  There  are  occasions 
when  martial  rule  can  be  properly  applied.  If 
in  foreign  invasions  or  civil  war  the  courts  are 
actually  closed  and  it  is  impossible  to  admin- 
ister criminal  justice  according  to  law,  then  on 
the  theater  of  active  military  operations,  where 
war  really  prevails,  there  is  a  necessity  to  fur- 
nish a  substitute  for  the  civil  authority  thus 
overthrown,  to  preserve  the  safety  of  the  Army 
and  society;  and  as  no  power  is  left  but  the 
military,  it  is  allowed  to  govern  by  martial  rule 
until  the  laws  can  have  their  free  couise.  As 
necessity  creates  the  rule,  so  it  limits  its  dur?- 
tion,  for  if  this  government  is  continued  after 
the  courts  are  reinstated  it  is  a  gross  usurpation 
of  power.  Martial  rule  can  never  exist  where 
the  courts  are  open  and  in  the  ])roper  and  unob- 
structed exercise  of  their  jurisdiction.  It  is 
also  confined  to  the  locaUty  of  actual  war." 
(Ex  parte  Milligan,  4  Wall.,  2.) 

"A  citizen  not  connected  with  the  military 
service  and  resident  in  a  State  where  the  courts 
are  open  and  in  the  proper  exercise  of  their 
jurisdiction  can  not,  even  when  the  privilege 
of  the  writ  of  habeas  corpus  is  suspended,  be 
tried,  convicted,  or  sentenced  otherwise  than 
by  the  ordinary  courts  of  law."  (Ex  parte  Mil- 
Ugan,  4  Wall.,  3.) 

The  Federal  authority  having  been  unop- 
posed in  the  State  of  Indiana  and  the  Federal 
courts  open  for  the  trial  of  offenses  and  the  re- 
dress of  grievances,  the  usages  of  war  could  not, 
under  the  Constitution,  afford  any  sanction  for 
the  trial  there  of  a  citizen  in  civil  life  not  con- 
nected with  the  military  or  naval  service  by  a 
military  tribunal  for  any  offense  whatever. 
"  It  is  claimed  that  martial  law  covers,  with  its 
broad  mantle,  the  proceedings  of  this  miUtary 
commission.  The  proposition  is  this:  that  in  a 
time  of  war  the  commander  of  an  armed  force  (if 
in  his  opinion  the  exigencies  of  the  country  de- 
mand it  and  of  which  he  is  the  judge)  has  the 
power,  within  the  lines  of  his  military  district, 
to  suspend  all  civil  rights  and  their  remedies 
and  subject  citizens,  as  well  as  soldiers,  to  the 
riile  of  his  will;  and  in  the  exercise  of  his  lawful 
authority  can  not  be  restrained  except  by  his 
superior  officer  or  the  President  of  the  Uiiited 
States.  *  *  *  Martial  law  established  on 
such  a  basis  destroys  e^'ery  guaranty  of  the 
Constitution  and  effectually  renders  the  'mili- 
tary independent  of  and  superior  to  the  civil 


power.'  *  *  *  Civil  liberty  and  this  kind 
of  martial  law  can  not  end  are  together.  *  *  * 
It  will  be  borne  in  miml  that  this  is  not  a  ques- 
tion of  the  power  to  proclaim  martial  law  when 
war  exists  in  a  community  and  the  courts  and 
ci^il  authorities  are  overthrown."  (Ex  parte 
Milligan,  4  Wall.,  3,  124-127.) 

"Martial  law  is  exercised  in  our  country,  the 
mihtary  being  on  the  spot  to  execute  it  where 
no  civil  authority  exists;  but  where  the  civil 
authority  exists,  the  Constitution  is  imperative 
that  it  shall  be  paramount  to  the  military." 
(Griffin  v.  Wilcox,  21  Ind.,  370.) 

"Martial  law  is  restricted  to  those  places 
which  are  the  theater  of  war  and  to  their  imme- 
diate vicinity.  Modified  by  the  necessities  of 
war,  it  is  obvious  it  can  not  operate  beyond  these 
bounds."     (In  re  Kemp,  16  Wis.,  359. )_ 

"Neither  can  even  the  Commander  in  Chief 
of  the  Army  extend  martial  law  beyond  the 
sphere  of  military  operations.  If  he  possessed 
this  power,  in  time  of  war  or  insurrection,  over 
the  whole  extent  of  the  Nation,  whether  within 
the  theater  of  military  operations  or  not,  the 
political  institutions  and  laws  of  the  land  would 
be  entirely  at  his  mercy."  (Jones  v.  Seward,  40 
Barb.  (N.  Y.),  563.) 

"But  when  the  civil  courts,  in  the  midst  of 
loyal  communities,  are  exercising  their  ordinary 
jurisdiction,  the  appeal  to  the  mihtary  arm  or 
to  martial  law  is  needless."  (Johnson  v.  Jones, 
44  111.,  143;  92  Am.  Dec,  159.) 

See  note  to  Article  I,  section  8,  clause  13, 
"Civil  responsibility  of  persons  in  military 
service." 

Effect  of  martial  law. — When  martial  law 
is  declared  by  a  State  during  a  local  insurrec- 
tion, "  the  officers  engaged  in  its  mihtary  service 
might  lawfully  arrest  anyone  who,  from  the  in- 
formation before  them,  they  had  reasonable 
grounds  to  believe  was  engaged  in  the  insurrec- 
tion, and  might  order  a  house  to  be  forcibly  en- 
tered and  searched  when  there  were  reasonable 
grounds  for  supposing  he  might  be  there  con- 
cealed. Without  the  power  to  do  this,  martial 
law  and  the  miUtary  array  of  the  Government 
would  be  mere  parade  and  rather  encourage  at- 
tack than  repel  it."  (Luther  v.  Borden,  7 
How.,  1.) 

"The  effect  of  martial  law  is  to  put  into  opera- 
tion the  powers  and  methods  vested  in  the  com- 
manding oflicer  by  military  law.  So  far  as  his 
i:)0wers  for  the  preservation  of  order  and  security 
of  Ufe  and  property  are  concerned,  there  is  no 
limit  but  the  necessities  and  exigency  of  the 
situation;  and  in  this  respect  there  is  no  differ- 
ence between  a  public  war  and  domestic  insur- 
rection." (Commonwealth  t;.  Shortall,  206  Pa. 
St.,  165;  65  L.  R.  A.,  193.) 

Martial  law  "overrides  and  suppresses  all 
existing  civil  laws,  civil  officers,  and  civil 
authorities  by  the  arbitrary  exercise  of  military 
power;  and  every  citizen  or  subject,  in  other 
words  the  entire  population  of  the  country, 
within  the  confines  of  its  power,  is  subjected  to 
the  mere  will  or  caprice  of  the  commander.  He 
holds  the  hves,  lil:)erty,  and  property  of  all  in 
the  palm  of  his  hand.  Martial  law  is  regulated 
by  no  known  or  established  system  or  code  of 
laws,  as  it  is  over  and  above  all  of  them.  The 
commander  is  the  legislator,  judge,  and  exe- 
cutioner.    His  order  to  the  provost  marshal  is 


45 


Art.  I,  Sec.  8. 


Pt.  1.  THE  CONSTITUTION. 


War  Power. 


llii;  bcginuinp  and  tho  oiid  of  iho  trial  aiul  coii- 
(lemnation  of  the  accused.  There  may  be  a 
lioaring,  or  not,  at  his  will.  If  ]>enni1ted.  it 
may  be  before  a  dnimheiwl  court-martial  or  the 
more  formal  board  of  a  military  commission,  or 
both  forma  may  be  dis]>en.sod  with  and  the  trial 
and  condemnation  be  enually  legal,  though  not 
equallv  humane  and  juaicious."  (In  re  Egan, 
S  Fed."C'as.  N(..  4;U);i.) 

"The  will  of  the  military  chief  *  *  *  is, 
subject  to  slight  limitations,  the  law  of  the  mili- 
tary zone  or  theater  of  war.  It  is  sometimes 
spoken  of  as  a  substitute  for  the  c\y\\  law.  It 
is  baid  also  that  the  ])roclamation  of  martial  law 
ousts  or  suspends  the  ('ivil  jurisdiction.  These 
expressions  are  hardly  accurate.  The  invasion 
or  insurrection  sets  aside,  suspends,  and  nulU- 
fiea  the  actual  operation  of  the  Constitution  and 
laws.  The  guaranties  of  the  Constitution  as 
well  ivs  the  common  law  and  statutes,  and  the 
functions  and  powers  of  the  courts  and  officers, 
become  inoperative  by  virtue  of  the  disturb- 
ance. The  proclamation  of  martial  law  simply 
recognizes  the  status  or  condition  of  things  re- 
sulting from  the  invasion  or  insurrection  and 
declares  it.  In  sending  the  army  into  such 
territory  to  occupy  it  and  execute  the  will  of 
the  military  chief  for  the  time  being,  as  a  means 
of  restoring  peace  and  order,  the  executive 
merely  adopts  a  method  of  restoring  and  making 
effective  the  Constitution  and  laws  within  that 
territory,  in  obedience  to  his  sworn  duty  to  sup- 
port the  Constitution  and  execute  the  laws." 
(State  V.  Brown,  71  W.  Va.,  519,  521;  33  Ann. 
Cas.,  2.) 

"  In  most,  if  not  all,  of  the  instances  in  which 
the  civil  courts  have  treated  sentences  of  the 
militarj^  commissions  as  void,  the  commissions 
acted  and  the  sentences  were  pronounced  in 
tranquil  territory,  not  covered  by  any  procla- 
mation of  martial  law,  in  which  there  was  no 
actual  war,  in  which  the  Constitution  and  laws 
were  in  full  and  unobstructed  operation." 
(State  V.  Brown,  71  W.  Va.,  519,  524;  33  Ann. 
Cas.,  3.)  ["  In  some  ])arts  of  the  country,  during 
the  War  of  1812,  our  officers  made  arbitrary 
arrests  and  by  military  tribunals  tried  citizens 
who  were  not  in  the  military  service.  These 
arrests  and  trials  when  brought  to  the  notice  of 
the  courts  were  uniformly  condemned  as  ille- 
gal."    (Ex  parte  Milligan,  4  Wall.,  128.)]  _ 

"Power  to  establish  a  military  commission 
for  the  punishment  of  offenses  committed  with- 
in the  military  zone  is  challenged  in  argument; 
but  we  think  such  a  comnussion  is  a  recognized 
and  necessary  inc'ident  and  instrumentality  of 
martial  government.  A  mere  power  of  deten- 
tion of  offenders  may  be  wholly  inadequate  to 
the  exigencies  and  effectiveness  of  such  govern- 
ment. How  long  an  insurrection  or  a  war  may 
last  depends  u])on  its  character."  (State  v. 
Brown,  71  W.  Va.,  519,  525;  33  Ann.  Cas.,  4.) 

"So  long  as  such  arrests  [without  judicial 
process]  are  made  in  good  faith  and  in  the  honest 
belief  that  they  are  needed  in  order  to  head  the 
insurrection  off,  the  governor  is  the  final  judge 
and  can  not  be  subjected  to  an  action  after  he 
is  out  of  office  on  the  ground  that  he  had  not 
reasonable  ground  f(jr  his  belief.  *  *  * 
When  it  comes  to  a  decision  b>^  the  head  of  the 
state  iipon  a  matter  involving  its  life,  the  ordi- 
nary rights  of  individuals  must  yield  to  what  he 


deem.s  tho  necessities  of  the  moment."  (Moyer 
V.  rcabn.ly,  212  U.  S.,  78.) 

"N(j  more  force,  however,  can  be  used  than 
is  nec-essary  to  accomplish  the  object.  And  if 
the  power  is  exercised  for  tho  purposes  of  op- 
pression and  any  injury  willfully  done  to  person 
or  property,  the  party  by  whom  or  by  whose 
order  it  is  committed  will  undoubtedly  be 
answerable."     (Luther  v.  Borden,  7  How.,  1.) 

"  It  is  an  unbending  rule  of  law  that  the  exer- 
cise of  military  power  where  the  rights  of  the 
citizen  are  concerned  shall  never  be  jjushed 
beyond  what  the  exigency  requires."  (Ray- 
mond V.  Thomas,  91  U.  S.,  712.) 

During  the  war  of  1812  Gen.  Jackson  de- 
clared martial  law  in  New  Orleans.  By  his 
order  some  of  the  citizens  were  arrested  for  sedi- 
tious publications.  A  %vrit  of  habeas  corpus 
was  issued  and  served  on  Gen.  Jackson,  who 
tore  up  the  writ  and  sent  the  judge  by  force 
beyond  his  lines.  Later,  news  was  received  of 
the  treaty  of  peace  and  martial  law  revoked. 
The  court  issued  a  process  against  Jackson  for 
contempt  of  court.  He  came  into  court  per- 
sonally, submitted  to  its  jurisdiction,  and  paid 
a  fine  of  $1,000.  "  I  have  always  been  taught  to 
beUeve  that  Judge  Hall  was  right  in  imposing 
the  fine  and  that  Gen.  Jackson  earned  the 
brightest  page  in  his  history  by  paying  it  and 
gracefully  submitting  to  the  judicial  power. 
Such  I  believe  is  the  judgment  of  history  and  of 
thoughtful  judicial  inquirers,  though  a  grateful 
country  very  properly  refunded  to  her  favorite 
general  the  sum  he  had  paid  for  a  necessary 
but  unauthorized  exercise  of  mihtary  power." 
(Dissenting  opinion  of  Mr.  Justice  Miller,  Dow 
V.  Johnson,  JOO  U.  S.,  158,  194;  see  also  Ex  parte 
Beck  (245  Fed.  Rep.,  967,  973.) 

Military  comniissions. — "The  laws  of  war 
constitute  much  the  greater  part  of  the  law  of 
nations.  Like  the  other  laws  of  nations,  they 
exist  and  are  of  binding  force  upon  the  depart- 
ments and  citizens  of  the  Government,  though 
not  defined  by  any  law  of  Congress  *  *  * 
It  is  manifest  from  what  has  been  said,  that  mil- 
itary tribunals  exist  under  and  according  to  the 
laws  and  usages  of  war  in  the  interest  of  justice 
and  mercy.  They  are  established  to  save  hu- 
man life,  and  to  prevent  cruelty  as  far  as  possi- 
ble. The  commander  of  an  army  in  time  of  war 
has  the  same  power  to  organize  military  tribu- 
nals and  execute  their  judgments  that  he  has 
to  set  his  squadrons  in  the  field  and  light  bat- 
tles. His  authority  in  each  case  is  from  the  law 
and  usage  of  war.  *  *  *  That  the  laws  of 
war  authorized  commanders  to  create  and  es- 
tablish military  commissions,  courts,  or  tribu- 
nals for  the  trial  of  offenders  against  the  laws 
of  war,  whether  they  be  active  or  secret  partici- 
pants in  the  hostilities,  can  not  be  denied. 
*  *  *  It  must  be  constantly  borne  in  mind 
that  such  tribunals  *  *  *  can  not  exist  ex- 
cept in  time  of  war,  and  can  not  then  take  cogni- 
zance of  offenders  or  offences  where  the  civil 
courts  are  open,  except  offenders  and  offences 
against  the  laws  of  war  *  *  *  The  fact  that 
the  civil  courts  are  open  does  not  affect  the  right 
of  the  military  tribunal  to  hold  as  a  prisoner  and 
to  try.  The  civil  courts  have  no  more  right 
to  prevent  the  military,  in  time  of  war,  from  try- 
ing an  offender  against  the  laws  of  war  than  they 
have  a  right  to  interfere  with  and  prevent  a  bat- 


46 


The  Navy. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


tie."  (11  Op.  Atty.  Gen.  297,  holding  that  "  the 
persons  charged  with  the  assassination  of  the 
President  in  the  city  of  "Washington,  on  the  14th 
of  April,  1865,  may  be  lawfully  tried  before  a 
military  tribunal";  see  also  Carver  t).  U.  S.,  16 
Ct.  Cls^  361;  111  U.  S.,  609.) 

A  military  commission  was  without  jurisdic- 
tion to  try  a  member  of  the  United  States  Army 
in  occupation  of  Cuba  in  1900,  for  homicide, 
notwithstanding  that  the  offense  was  not  cog- 
nizable by  Army  court-martial.  Although 
Cuba  was  being  governed  by  the  President  of 
the  United  States,  principally  by  means  of 
American  soldiers,  it  did  not  have  the  status  of 
martial  law  or  military  government.  (23  Op. 
Atty.  Gen.,  120.) 


Rules  governing  military  commissions  and 
provost  courts  convened  by  naval  authority 
are  published  in  C.  M.  O.  Nos.  13,  1916,  page 
6,  and  15,  1917,  page  8. 

See  "Unconstitutional  Claims  of  Mili- 
tary Authority,"  published  in  Journal  of  the 
American  Institute  of  Criminal  Law  and  Crimi- 
nology, vol.  5,  page  718,  for  criticism  of  decisions 
of  the  United  States  Supreme  Court  and  other 
authorities  above  cited;  see  also,  Johnson  v. 
Duncan,  3  IMartin  (La.)  530,  6  Am.  Dec.  675, 
cited  in  dissenting  opinion  in  Luther  v.  Borden, 
7  How.  83,  in  dissenting  opinion  in  Re  Moyer, 
12  L.  R.  A.  (N.  S.)  979,  35  Colo.  159,  etc. 


[Clause  12.  Raising  and  support  of  armies.]  ^^  To  raise  and  support  Armies, 
but  no  Appropriation  of  Money  to  that  Use  shall  be  for  a  longer  Term  than 
two  years ; 

[Clause  13.  Provision  for  a  Navy.]    ^^  To  provide  and  maintain  a  Navy; 


I.  Power  to  Provide  Navy. 
II.  Freedom  from  State  Interference. 
Jurisdiction  of  Civil  Authorities. 
Responsibility  of   Military  Authori- 
ties FOR  Illegal  Acts. 
Protection  of  Military  Officers    for 
Acts  Done  in  Performance  of  Duty. 


III. 
IV. 


I.  Power  to  Provide  Navy. 

Distinguished  from  power  to  govern 
Navy. — "The  power  to  formulate  Articles  for 
the  Government  of  the  Navy  and  f>unish  indi- 
vidual officers  for  violation  thereof  is  conferred 
upon  Congress  by  the  clause  of  the  Constitution 
authorizing  it  'to  make  rules  for  the  government 
and  regulation  of  the  land  and  naval  forces;' 
[Art.  I,  sec.  8,  clause  14.]  The  power  to  pro- 
vide what  persons  may  be  appointed  or  enlisted 
in  the  naval  service,  the  qualifications  they 
must  possess,  and  the  total  number  of  the  entire 
force,  is  conferred  by  the  clause  authorizing 
the  Congress  'to  provide  and  maintain  a  Navy.' 
Statutes  passed  under  the  first  clause  mentioned 
are  penal  and  are  to  be  enforced  by  courts-mar- 
tial; those  passed  under  the  second  clause  are 
enacted  in  the  interest  of  the  Na\'y  at  large  and 
are  to  be  administered  by  the  President  either 
alone  or  with  the  aid  of  examining  boards  or 
such  other  instrumentalities  as  may  be  deter- 
mined upon  by  Congress.  Persons  excluded 
from  appointment  for  lack  of  any  required 
qualification — health,  age,  nationality,  height, 
temperament,  or  any  other  condition  that  Con- 
gress might  see  fit  to  impose — are  not  being  pun- 
ished under  penal  laws  for  their  failure  to 
measure  up  to  the  necessary  requirements,  but 
are  merely  incidentally  affected  by  the  Gov- 
ernment's policy  *  *  *  ."  (File  26260- 
1392,  June  29, 1911,  pp.  24-25;  see  also  Op.  Atty. 
Gen.,  Feb.  15,  1918,  file  26282-326:  2.) 

Acquiring  and  manning  ships  of  war. — 
This  clause  authorizes  the  Government  to  buy 
or  build  any  number  of  steam  or  other  ships  of 
war,  to  man,  arm,  and  otherwise  prepare  them 
for  war,  and  to  dispatch  them  to  any  accessible 


part  of  the  globe;  and  to  establish  a  naval  acad- 
emv  to  prepare  voung  men  for  the  naval  service. 
(U.-  S.  V.  Rhodes,  27  Fed.  Cas.  No.  16151.) 
Similar  authority  might  be  implied  in  the 
power  to  '  'declare  war. "  (U.  S.  v.  Burlington, 
etc..  Ferry  Co.,  21  Fed.  Rep.,  340.) 

Power  to  compel  rnilitary  service. — 
Powers  granted  to  Congress  by  Article  I,  sec- 
tion 8,  of  the  Constitution,  include  power  to 
compel  military  service,  exercised  by  the  se- 
lective draft  law  of  May  18,  1917  (40  Stat., 
76).  This  conclusion,  ob\'ious  upon  the  face 
of  the  Constitution,  is  confirmed  by  a  histori- 
cal examination  of  the  subject.  (Selective 
Draft  Law  Cases,  245  U.  S.,  366.) 

Allowance  of  pensions. — Congress  is  em- 
powered to  give  or  withhold  a  pension,  to  pre- 
scribe who  may  receive  it,  and  to  determine  all 
the  circumstances  and  conditions  under  which 
any  application  therefor  shall  be  prosecuted. 
No  man  has  a  legal  right  to  a  pension;  the  whole 
control  of  the  matter  is  within  the  domain  of 
congressional  powe*-.  (Frisbie  v.  U.  S.,  157 
U.  S.,  166;  see  also  U.  S.  v.  Van  Leuven,  62 
Fed.  Rep.,  56.) 

II.  Freedom  from  State  Interference. 

State  interference  with  Federal  instru- 
mentalities.— The  principle  that  no  State  has 
the  right  to  interfere  with  the  instrumentalities 
of  the  Federal  Government  has  been  recognized 
from  the  earUest  days  of  our  Government. 
(File  6769-21,  July  19,  1911,  and  26524-54, 
Feb.  12,  1914.) 

'  'Such  is  the  law  with  reference  to  all  instru- 
mentalities created  by  the  Federal  Government. 
Their  exemption  from  State  control  is  essential 
to  the  independence  and  sovereign  authority  of 
the  United  States  within  the  sphere  of  their 
delegated  powers."  (Fort  Leavenworth,  etc. 
R.  Co.  V.  Lowe,  114  U.  S.,  525.) 

"Such  being  the  distinct  and  independent 
character  of  tlie  two  Governments  within  their 
respective  spheres  of  action,  it  follows  that 
neither  can  intrude  with  its  judicial  process 
into  the  domain  of  the  other,  except  so  far  as 
such  intrusion  may  be  necessary  on  the  part  of 


47 


Art.  I,  Sec.  8. 


Pt.  1.   THE  CONSTITUTION. 


The  Navy. 


the  National  (.lovernment  to  preserve  its  riulit- 
ftil  supremacy  iu  cases  of  conflict  of  autliority. 
In  their  kxwa  and  mode  of  enforcement  neither 
is  resjionsilile  to  the  other.  How  their  respec- 
tive laAvs  shall  l)e  enacted;  how  they  shall  be 
carried  into  execution;  and  in  what  tribunals, 
or  by  what  officers;  and  how  much  discretion, 
and  whether  any  at  all,  shall  be  vested  in  their 
officers,  are  matters  subject  to  their  own  control, 
in  the  regulation  of  which  neither  can  interfere 
withtheother.  Now,  among  the  powers  assigned 
to  the  National  Government  is  the  power  to  raise 
and  support  armies  and  the  power  to  provide 
for  tlie  government  and  regulation  of  the  land 
and  naval  forces.  *  *  *  No  interference 
with  the  execution  of  tliis  power  of  the  National 
Government  in  the  formation,  organization, 
and  government  of  the  armies  l)y  any  Stiite  offi- 
cials could  be  permitted  without  greatly  impair- 
ing the  efficiency,  if  it  did  not  utterly  destroy, 
this  branch  of  the  public  service."  (IT.  S.  v. 
Tarble,  13  Wall.,  397.) 

"A  building  on  a  tract  of  land  owned  by  the 
United  States,  used  as  a  foit,  or  for  other  public 
purposes  of  the  Federal  Government,  is  ex- 
empted, as  an  instrumentality  of  the  Govern- 
ment, from  any  such  control  or  interference  by 
the  State  as  will  defeat  or  embarrass  its  effective 
use  for  those  pui-poses  "  [although  such  land 
may  not  be  under  the  exclusive  jurisdiction  of 
the  United  States].  (Chicago,  etc.  R.  Co.  v. 
McGlinn,  114  U.  S.,  545,  explaining  Ft.  Leaven- 
worth R.  Co.  V.  Lowe,  114  U.  S.,  525.) 

"  If  any  particular  State  had  it  in  its  power  to 
intermeddle  with  the  police  and  government  of 
an  Army  or  Na^■y  *  *  *  upon  any  pretext, 
there  would  be  an  end  of  the  exclusive  authority 
of  the  United  States  in  this  respect.  Wars  and 
other  mea,sures  unpopular  in  particular  sections 
of  the  country  might  be  impeded  in  their  prose- 
cution by  the  interference  of  the  State  authori- 
ties. Such  a  conflict  of  jurisdictions  must  ter- 
minate in  anarchy  and  confusion."  (Argument 
of  Attorney-General,  U.  S.  v.  Bevans,  3  Ulieat., 
374.) 

"National  banks  are  instrumentalities  of  the 
Federal  Government.  *  *  *  It  follows  that 
an  attempt  by  a  State  to  define  their  duties  or 
control  the  conduct  of  their  affairs  is  absolutely 
void  whenever  such  attempted  exercise  of 
authority  expressly  conflicts  with  the  laws  of 
the  United  States  and  either  frustrates  the  pur- 
pose of  the  national  legislation  or  impairs  the 
efficiency  of  these  agencies  of  the  Federal  Gov- 
ernment to  discharge  the  duties  for  the  per- 
formance of  which  they  were  created. "  (Davis 
V.  Bank,  161  U.  S.,  275.) 

Taxation  of  Federal  instrumentalities. — 
"If  the  States  may  tax  one  instrumentality 
employed  by  the  Government  in  the  execution 
of  its  powers,  they  may  tax  any  and  every  other 
instrumentality.  They  may  tax  the  mail; 
they  may  tax  the  mint;  they  may  tax  patent 
rights;  they  may  tax  the  papers  of  the  customs- 
house;  they  may  tax  judicial  process;  they 
may  tax  all  the  means  employed  by  the  Gov- 
ernment to  an  excess  which  would  defeat  all  the 
ends  of  government.  This  was  not  intended  by 
the  American  people.  They  did  not  design  to 
make  their  government  dependent  on  the 
States."  (McCuUoch  v.  Maryland,  4  Wheat., 
432,  per  Chief  Justice  Marshall.) 


Taxation  of  Federal  property. — "It  is 
familiar  law  tiiat  a  State  ha,s  no  power  to  tax 
property  of  the  United  States  witliin  its  limits. 
This  exemption  of  their  property  from  State 
taxation — and  by  State  taxation  we  mean  any 
taxation  by  authority  of  the  State,  whether  it 
be  strictly  for  State  purposes  or  for  more  local 
and  special  objects — is  founded  upon  that 
principle  which  inheres  in  every  independent 
government,  that  it  must  he  free  from  any  such 
interference  of  another  government  as  may  tend 
to  destrov  its  powers  or  impair  their  efliciency." 
(Wisconsin  C.  R.  Co.  v.  Price  Countv,  133  U.  S., 
496:  Van  Brocklin  r.  Tennes-see.  117  IJ.  S.,  151.) 

Poll  taxes  upon  persons  in  Navy. — "A 
poll  tax  upon  the  person  of  an  officer  of  the 
Navy  levied  by  a  State  or  municipality  within 
the  confines  of  which  he  is  ordered  officially  to 
perform  duty  as  an  agent  of  the  Government  in 
his  capacity  as  such  officer  is  not  such  a  tax  as 
he  can  be  lawfully  required  to  pay."  (File 
9212-22,  Feb.  21,  1912:  see  also  file  9212-^7, 
and  Ex  parte  White,  228  Fed.  Rep.,  88.) 

State  tax  on  Federal  automobiles. — 
"Automobiles  purchased  for  the  President 
under  appropriations  made  by  Congress  are  not 
subject  to  taxation  by  a  State,  nor  can  the 
chauffeurs  operating  said  machines  be  taxed 
by  a  State  for  the  privilege- of  performing  the 
duties  pertaining  to  their  emplo\Tnent."  (28 
Op.  Atty.  Gen.,  604.) 

"A  State  may,  however,  in  order  to  protect 
the  public  against  dangers  that  might  arise 
from  performing  the  duties  of  a  lawful  employ- 
ment in  an  unlawfid  manner,  adopt  reasonable 
police  regulations  which  require  that  certain 
conditions  be  complied  with  before  entering 
upon  such  occupation,  and  the  fees  intended 
merely  to  pay  the  expenses  of  complying  with 
these  requirements  may  be  exacted."  (28  Op. 
Atty.  Gen.,  604.) 

"Under  existing  law  and  appropriations  an 
employee  of  the  Federal  Government  who  pays 
a  fee  to  a  State  for  a  chauffeur's  license  to  oper- 
ate a  Goveniment-o\vned  motor  vehicle  on 
public  business  is  not  entitled  to  reimburse- 
ment therefor  from  public  fimds.  Quaere, 
whether  the  Federal  Government,  while  deny- 
ing the  right  of  a  State  to  exact  from  it  a  motor 
vehicle  license  fee,  should  at  the  same  time 
accept  such  a  license  and  place  the  tag  e\ddenc- 
ing  it  upon  such  motor  vehicle."  (23  Comp. 
Dec,  386.) 

A  law  of  a  State  penalizing  those  who  operate 
motor  trucks  on  highways  without  having  ob- 
tained licenses  based  on  examination  of  com- 
petency and  payment  of  a  fee,  can  not  consti- 
tutionally apply  to  an  employee  of  the  Post 
Office  Department  while  engaged  in  driving  a 
Government  motor  truck  over  a  post  road  in 
the  performance  of  his  official  duty.  (John- 
son v.  Mai-yland,  254  U.  S.,  51.) 

Hunters'  licenses  issued  by  States. — The 
appropriation  "General  expenses.  Bureau  of 
Entomology,"  is  not  available  for  the  payment 
of  a  fee  for  a  hunter's  license  to  be  issued  by 
a  State  to  a  scientific  investigator  of  the  De- 
partment of  Agriculture  as  an  attempted  condi- 
tion precedent  to  his  performing  his  official 
duties  in  that  State.     (23  Comp.  Dec,  57.) 

State  taxation  of  Federal  salaries. — 
' '  The  powers  of  the  National  Government  can 


48 


The  Navy. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


only  be  executed  by  officers  whose  services  must 
be  compensated  by  Congress.  The_  allowance 
is  in  its  discretion.  The  presumption  is  that 
the  compensation  given  by  law  is  no  more  than 
the  services  are  worth,  and  only  such  in  amount 
as  will  secure  from  the  officer  the  diligent  per- 
formance of  his  duties.  *  *  *  The  com- 
pensation of  an  officer  of  the  United  Statesis 
fixed  by  a  law  made  by  Congress.  It  is  in  its 
exclusive  discretion  to  determine  what  shall  be 
given.  *  *  *  Does  not  a  tax,  then,  by  a 
State  upon  the  office,  diminishing  the  recom- 
pense, conflict  with  the  law  of  the  United  States, 
which  secures  it  to  the  officer  in  its  entireness? 
It  certainly  has  such  an  effect."  (Dobbins  v. 
Commissioners,  16  Pet.,  4.35.) 

Taxation  of  Federal  telegrams. — A  State 
tax  upon  telegraph  messages  could  not  be  col- 
lected upon  messages  sent  by  officers  of  the 
United  States  on  public  business.  (Western 
Union  Tel.  Co.  v.  Texas.  105  U.  S.,  460.) 

Taxation  of  Federal  contractors. — "Can 
a  contractor  for  supplying  a  military  post  with 
provisions  be  restrained  from  making  purchases 
witlun  any  State,  or  from  transporting  the  pro- 
visions to  the  place  at  which  the  troops  were 
stationed?  Or  could  he  be  fined  or  taxed  for 
doing  so?  We  have  not  yet  heard  these  questions 
answered  in  the  affirmative.  It  is  true  that  the 
property  of  the  contractor  may  be  taxed,  as  the 
property  of  other  citizens;  and  so  may  the  local 
property  of  the  bank.  But  we  do  not  admit 
that  the  act  of  purcliasing  or  of  conveying  the 
articles  purchased  can  be  under  State  control." 
(Osbom  V.  United  States  Bank,  9  Wheat.,  867.) 

Taxation  of  passenger  transportation. — 
"A  special  tax  on  raih-oad  and  stage  companies 
for  every  passenger  carried  out  of  the  State  by 
them  is  a  tax  on  the  passenger  for  the  privilege 
of  passing  through  the  State  by  the  ordinary 
modes  of  travel  and  is  inconsistent  with  objects 
for  which  the  Federal  Government  was  estab- 
lished and  with  rights  conferred  by  the  Consti- 
tution on  that  GoA-ernment  and  on  the  people. 
An  exercise  of  such  a  power  is  accordingly 
void."     (Crandall  v.  Nevada,  6  Wall.,  35.) 

"The  Federal  power  has  a  right  to  declare 
and  prosecute  wars  and  as  a  necessary  incident 
to  raise  and  transport  troops  tlu-ough  and  over 
the  territory  of  any  State  of  the  Union.  If  this 
right  is  dependent  in  any  sense,  however 
limited,  upon  the  pleasure  of  a  State,  the  Gov- 
ernment itself  may  be  overthrown  by  an  ob- 
struction to  its  exercise.  Much  the  largest  part 
of  transportation  of  troops  during  tiie  late  re- 
bellion was  by  railroads,  and  largely  through 
States  whose  people  were  hostile  to  the  Union. 
If  the  tax  levied  by  Nevada  on  railroad  passen- 
gers had  been  the  law  of  Tennessee,  enlarged  to 
meet  the  wishes  of  her  pe(jple,  the  Treasiu-y  of 
the  United  States  could  not  have  paid  the  tax 
necessary  to  enable  its  armies  to  pass  tlirough 
her  territory."  (Crandall  v.  Nevada,  6  Wall., 
35.) 

"The  United  States  has  a  right  to  require  the 
services  of  its  citizens  at  the  seat  of  Federal 
Government  in  all  executive,  legislative,  and 
judicial  departments,  and  at  all  points  in  the 
several  States  where  the  functions  of  the  Gov- 
ernment are  to  be  performed  *  *  *.  The 
citizens  of  the  United  States  have  the  correla- 


tive right  to  approach  the  great  departments  of 
the  Government,  the  ports  of  entry  through 
wliich  commerce  is  conducted,  and  the  various 
Federal  ofiices  in  the  States.  The  taxing 
power,  being  in  its  nature  unlimited  over  the 
subjects  within  its  control,  would  enable  the 
State  governments  to  destroy  the  above-men- 
tioned rights  of  the  Federal  Government  and  of 
its  citizens  if  the  right  of  transit  tlirough  the 
States  by  railroad  and  other  ordinary  modes  of 
travel  were  one  of  the  legitimate  objects  of 
State  taxation."  (Crandall  v.  Nevada,  6  Wall., 
36;  compare  28  Op.  Atty  Gen.,  604.) 

Inspection  of  powder. — The  powder  offi- 
cer for  the  harbor  of  Norfolk,  appointed  under  the 
laws  of  Virginia  to  superintend  the  handling  of 
all  powder  to  and  from  vessels  in  the  harbor,  haa 
no  authority  over  powder  belonging  to  the  Fed- 
eral Government,  and  the  United  States  is  not 
liable  for  any  charge  for  services  performed  by 
him  imder  the  authority  of  that  law.  (25  Op. 
Atty.  Gen.,  234;  compare  28  Op.  Atty  Gen., 
604). 

"  It  ia  not  open  to  question  that  such  a  law  is 
the  legitimate  exercise  by  the  State  of  its  police 
power  so  far  as  its  provisions  do  not  affect  the 
agencies  of  the  Federal  Government  or  impair 
their  efficiency  in  performing  the  functions 
which  they  are  designed  to  perform.  No  police 
regulation  of  a  State,  however,  can  be  permitted 
to  interfere  with  the  instrumentalities  of  the 
Federal  Government  *  *  *.  If  the  State  of 
Virginia  has  authority  to  control  the  shipment 
through  the  State  of  powder  belonging  to  the 
Government  and  impose  a  charge  therefor,  it 
may  stop  euch  powder  at  its  borders  on  the 
ground  that  it  is  improperly  boxed,  or  that  it  is 
not  boxed  in  accordance  with  regulations  of  the 
State.  It  is  obvious  that  such  a  proceeding 
would  seriously  interfere  with  and  impede  an 
agency  of  the  Government.  If  Virginia  may 
make  and  enforce  such  a  police  regiilation,  it 
follows  that  every  other  State  may  do  the 
same  *  *  *.  If  the  State  may  control  the 
transfer  of  powder  belonging  to  the  Government, 
it  may  inspect  a  regiment  of  Cavalry  under  a 
police  regulation  providing  for  the  inspection 
of  all  horses  coming  within  its  borders.  If  one 
State  may  inspect  aregiment  of  Cavalry  and  im- 
pose a  charge  therefor,  it  follows  that  every  other 
State  may  do  the  same.  If  a  regiment  of  Cav- 
alry may  be  inspected  and  turned  back — for,  of 
course,  the  power  to  inspect  includes  the  power 
to  stoj) — an  army  of  Cavalry  and  Artillery  may 
be  inspected  and  stopped  at  the  borders  of  a 
State  *  *  *.  If  a  State  imder  the  exercise 
of  its  police  power  may  prevent  the  Federal 
Government  from  sending  its  troops  and  mu- 
nitions of  war  to  different  parts  of  the  country, 
the  Constitution  did  not  -in  fact  'provide  for 
the  common  defense.'"  (25  Op.  Atty.  Gen., 
234.) 

Inspection  of  battleships. — "The  health 
laws  of  a  State  do  not  extend  to  agencies  of  the 
Federal  Government,  and  as  battleships  belong- 
ing to  the  United  States  are  agencies  of  the 
Federal  Government,  the  charges  by  a  health 
officer  of  a  State  for  the  inspection  of  such  bat- 
tleships are  not  a  legal  claim  against  the  United 
States."  (13  Comp.  Dec,  672,  followed,  file 
6118-3,  Nov.  22,  1907.) 


49 


Art.  I,  Sec.  8. 


PL  1.   THE  CONSTITUTION. 


The  Navy. 


"Quarantine  charges  have  been  allowed  in 
some  instances  where  naval  vessels,  particularly 
colliers  which  have  no  medical  ollicers  on  board, 
arrive  from  a  foreij^n  ])ort,  or  from  an  infected 
port  in  the  United  St^ites.  In  such  instances 
It  is  always  assumed  that  actual  services  are 
rendered  by  the  inspecting  oihcer,  and  that 
such  services  are  necessary  in  defense  and  pro- 
tection of  the  public  health,  and  the  payment 
isforsuchserWces.  The  case  reported  *  *  * 
is  entirely  different.  No  servdces  were  ren- 
dered, and  the  charge  is  in  the  nature  of  a  quar- 
antine fee  or  tax.  Wliile  the  department 
desires  to  afford  all  reasonable  facilities  to 
quarantine  oflicers  in  making  inspections,  it 
can  not  undertake  to  pay  fees  of  this  character 
every  time  a  war  vessel  enters  a  port  of  the 
United  States.  Such  charges  are  unnecessary 
and  would  become  onerous  if  made  at  every 
port  entered  by  naval  vessels.  The  bill  referred 
to  *  *  *  should,  therefore,  not  be  paid." 
(File  3983,  Mar.  5,  190G;  followed,  fde  6118-2, 
Dec.  29,  1906.)  [This  decision  was  prior  to  the 
decision  of  the  Comptroller  of  the  Treasury 
quoted  in  preceding  paragraph .  See  also  23  Op. 
Atty.  Gen.,  299,  noted  below.] 

Inspection  of  horses. — Where  the  Federal 
Government  acquiesces  in  the  requirement  of 
State  laws  and  makes  arrangements  for  inspec- 
tion of  its  horses  in  accordance  therewith,  the 
expense  is  properly  payable  from  its  appropri- 
ations. (Comp.  Dec,  June  12,  1915,  War  Dept. 
Bui.  No.  26,  July  16,  1915,  distinguishing  21 
Comp.  Dec,  449.) 

Toll  for  property  of  United  States  pass- 
ing over  wharves. — "The  State  harbor  com- 
missioners of  California  are  charged  by  the  laws 
of  that  State  with  the  supervision  and  control 
of  the  wharves  and  landings  of  the  harbor  of  San 
Francisco,  with  the  right  to  collect  dockage, 
wharfage,  rent,  or  toll.  The  imposition  of  a 
toll  or  charge  by  such  commissioners  on  mer- 
chandise, being  the  property  of  the  United 
States,  passing  to  or  over  the  wharves  at  San 
Francisco,  is  constitutional  and  valid,  the 
charge  being  for  a  ser\dce  rendered;  the  Gov- 
ernment is  not  entitled  to  such  services  free  of 
toll."     (23  0p.  Atty.  Gen.,  299.) 

"It  has  been  adjudged  that  the  United  States 
Government  is  not  entitled  to  have  property  or 
troops  transported  free  over  a  railroad,  even 
where  a  land  grant  provided  that  the  road  shall 
remain  a  public  highway  for  the  use  of  the  Gov- 
ernment free  from  all  toll  or  other  charges  for 
transportation,  since  that  act  did  not  include 
free  use  of  rolling  stock  (Lake  Superior  &  M.  R. 
Co.  v.V.  S.,  93  U.  S.,  442).  This  principle 
fairly  includes  the  Government  use  of  State  or 
municipal  wharf  and  harbor  facilities.  That  is 
to  say,  the  different^kinds  of  Government  prop- 
erty affected  in  this'case,  while  used  for  public 
service  and  in  sovereign  and  important  opera- 
tions of  the  Government  such  as  required  this 
shipment,  are  not  instrumentalities  or  agencies 
which  are  necessarily  free  from  local  charges 
for  services  or  facilities  generally  legitimate. 
Indeed,  from  Railroad  Co.  v.  Peniston  (18  Wall., 
5,  36),  showing  that  a  tax  upon  property  of 
agents  of  the  United  States  does  not  necessarily 


hinder  the  ellicient  exercise  of  their  powers  or 
discharge  of  their  duties,  it  seems  to  be  a  conse- 
quence that  the  same  distinction  would  aj)ply 
to  the  Government  itself,  and  that  a  charge  upon 
Government  property  which  was  not  a  tax  upon 
operations  of  the  Government  or  a  direct 
obstruction  to  the  exercise  of  Federal  powers 
would  not  necessarily  be  invalid.  This  is  also 
the  conclusion  to  be  drawn  from  Railroad  Co. 
V.  United  States  (93  U.  S.,  442);  so  that,  while 
Government  property  may  not  be  taxed  nor 
Government  instrumentalities  or  agencies  nor 
the  operations  of  the  Government  be  obstructed 
or  burdened  in  any  such  way,  if  the  Government 
is  properly  liable  to  pay  charges  for  transporta- 
tion, a  charge  for  services  or  facilities  analogous 
to  transportation  and  connected  with  it  would 
not  be  a  tax  and  would  not  be  invalid  on  that 
score."  (23  Op.  Atty.  Gen.,  299;  compare  28 
Op.  Atty  Gen,  604). 

State  health  laws. — The  health  authorities 
of  the  State  of  Illinois  are  without  j  lu^isdiction 
to  require  reports  from  the  naval  authorities  at 
Great  Lakes,  apart  from  any  question  of  juris- 
diction over  the  lands  occupied  by  the  naval 
training  station  at  that  place.  (File  14560-174, 
Apr.  19,  1916.  See  also  file  4778-95,  Dec.  16, 
1916,  re  training  station,  San  Francisco,  Cal.) 

Exemption  from  State  laws  requiring 
employment  of  pilots. — "Commanders  of 
public  vessels  are  not  required  to  employ  and 
pay  branch  pilots  upon  entering  the  ports  and 
harbors  of  the  United  States.  This  exemption 
extends  to  all  vessels  belonging  to  the  United 
States,  and  employed  in  the  public  service, 
whether  they  are  armed  or  not."  (4  Op.  Atty. 
Gen.,  532.) 

"The  penalties  imposed  by  State  laws  for 
piloting  vessels  without  due  license  from  the 
State  have  no  application  to  persons  employed 
as  pilots  on  board  of  the  public  vessels  of  the 
United  States,  the  latter  vessels  being  within 
the  exclusive  jurisdiction  of  the  United  States." 
(16  Op.  Atty.  Gen.,  647.) 

Exemption  from  compvilsory  personal 
services  under  State  laws. — "The  salary 
of  a  Federal  officer  may  not  be  taxed;  he  may 
be  exempted  from  any  personal  services  which 
will  interfere  with  the  discharge  of  his  official 
duties,  because  those  exemptions  are  essential 
to  enable  him  to  perform  those  duties." 
(Bank  v.  Commonwealth,  9  Wall.,  353.) 

Persons  connected  with  the  military  service 
of  the  United  States  are  exempt  from  perform- 
ing road  duty  u])on  order  of  the  county  authori- 
ties when  comjiliance  with  such  order  would 
interfere  with  their  duty  to  the  Federal  Govern- 
ment. The  land  for  a  military  post  having 
been  purchased  by  the  United  States  with  the 
consent  of  the  State,  neither  the  State  nor  other 
local  authorities  have  power  to  interfere  with 
any  instrumentalities  necessary  to  the  pro])er 
use  of  such  location  as  a  military  post.  This 
would  be  true  even  if  the  land  had  been  ac- 
quired within  the  State  without  any  consent 
whatever  on  the  part  of  the  legislature  of  the 
State.  It  is  certainly  true  that  the  county 
authorities  would  have  no  right  to  interfere  in 
any  way  with  the  troops  located  at  the  post. 


60 


The  Navy. 


Ft.  1.  THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


It  is  not  claimed  that  the  officers  and  enlisted 
men  of  the  Army  stationed  at  the  fort  are  sub- 
ject to  road  duty  in  the  county.  The  same  is 
true  of  teamsters  employed  and  regularly  used 
by  the  quartermaster's  department  at  the  fort. 
A  military  post  could  not  be  properly  main- 
tained without  teamsters.  The  character  of  an 
Army  teamster's  service  and  his  duties  are  such 
that  it  would  be  impossible  for  him  to  perform 
them  properly  and  be  at  the  call  of  the  road 
commissioners  to  work  public  roads  of  the 
county  outside  of  the  Government's  property. 
The  State  and  county  have  no  right  to  call  on 
him  to  be  absent  from  the  fort  when  such  ab- 
sence would  interfere  with  the  proper  discharge 
of  his  duties  as  a  necessary  and  im]>ortant,  even 
if  an  humble,  part  of  the  Army  of  the  United 
States.  The  necessary  conclusion  is  that  the 
detention  of  the  petitioner  in  jail  for  failure  to 
perform  road  duty  is  in  violation  of  his  rights 
under  the  Constitution  and  laws  of  the  United 
States,  such  laws  including  the  Articles  of  War 
and  the  Army  Regulations,  the  latter  made  in 
pursuance  of  the  statutes  of  the  United  States, 
and  therefore  for  present  purposes  considered 
as  a  part  of  the  statutes.  (Pundt  v.  Pendleton, 
167  Fed.  Rep.,  997;  compare  Butler  v.  Perry, 
240  U.  S.,  328.) 

As  to  the  exemption  of  civil  employees  under 
the  War  Department  from  jury  duty  in  a  State 
court  where  such  exemption  is  not  allowed  by 
the  court,  the  Attorney  General  is  reluctant  to 
render  an  opinion,  as  to  do  so  might  bring  him 
in  confUct  with  a  judicial  tribunal.  In  this 
case  the  State  j  udge  in  refusing  the  claim  noti- 
fied the  War  Department  that  he  would  excuse 
the  men  from  such  duty  if  in  the  department's 
opinion  not  to  do  so  would  seriously  prejudice 
the  public  interest.  Under  these  circum- 
stances no  such  serious  occasion  has  as  yet  arisen 
as  would  justify  the  Attorney  General  in  re- 
\dewing  the  ruling  of  the  State  judge.  *"  If  the 
claim  of  right  to  jury  duty  from  Government 
workmen  shall  in  the  future  be  so  far  pressed 
as  to  cause  serious  inconvenience  in  your  [Sec- 
retary of  War's]  judgment,  of  course  I  can  not 
then  hesitate  to  meet  the  question."  (20  Op. 
Atty.  Gen.,  618;  see  also  file  21090-3,  Sept.  3, 
1908.) 

Limitation  upon  exemption  from.  State 
interference. — "These  agencies  [of  the  Fed- 
eral Government]  are  exempt  from  State  control 
by  police  regulation,  or  by  the  exercise  of  the 
taxing  power,  so  far  only  as  that  legislation  may 
interfere  with  or  impair  their  efficiency  in  per- 
forming the  functions  by  which  they  are  de- 
signed to  serve  the  Government."  (Bank  v. 
Commonwealth,  9  Wall.,  353;  Railroad  Co.  v. 
Peniston,  18  Wall.,  5;  Western  Union  Tel.  Co. 
V.  Mayor,  38  Fed.  Rep.,  560.) 

III.  Jurisdiction  of  Civil  Authorities. 

Exemption  of  Federal  officers  and  sub- 
ordinates from  arrest  by  State  author- 
ities.—"An  officer  of  the  United  States  Army, 
in  the  discharge  of  his  duty,  acting  in  obedience 
to  commands  by  the  Secretary  of  War,  who  in 
turn  is  executing  an  act  of  Congress,  is  not  sub- 
ject to  arrest  on  a  warrant  or  order  of  a  State 


court,  and  *  *  *  such  arrest  is  wholly  ille- 
gal." (In  re  Turner,  119  Fed.  Rep.,  231;  see 
also  State  v.  Burton,  103  Atl.,  962.) 

"It  is  begging  the  whole  question,  and  it  is 
idle,  to  say  that  any  and  all  Federal  officers  are 
amenable  and  subject  to  the  laws,  civil  and 
criminal,  of  Iowa  when  within  the  State.  Of 
course  they  are.  The  Secretary  of  War,  the 
general  of  the  Armies,  the  Chief  Justice,  and 
even  the  President,  perhaps,  are  subject  to  all 
laws  of  Iowa  when  in  Iowa.  No  one  disputes 
this.  But  that  is  not  the  question.  Can  any 
one  of  those  officers,  or  any  subordinate,  in  the 
discharge  of  his  duties  as  a  Government  officer, 
be  subject  to  the  laws  of  the  State  while  in  the 
State?  That  is  the  question  and  the  only  ques- 
tion. The  State  is  not  greater  than  the  Nation, 
but,  on  the  contrary,  the  State  is  but  a  part, 
and  a  small  j)art,  of  the  Nation.  And,  if  I  am 
wrong,  then  instead  of  the  President,  and  the 
Secretary  of  War,  and  the  general  of  the  Army, 
being  in  control,  we  will  have  army  commands 
given  by  and  through  the  courts,  and  an  officer 
like  Major  Turner  cashiered  and  dismissed  from 
the  service  if  he  refuses  to  obey  the  commands 
from  his  superiors,  and  if  he  does  obey  them, 
thrown  into  a  county  jail  for  contempt  of  court.'' 
(In  re  Turner,  119  Fed.  Rep.,  231.) 

"The  arrest,  under  authority  of  a  State,  of  a 
Federal  officer,  and  that  officer  one  of  the 
Federal  Army  in  the  performance  of  a  com- 
mand by  a  superior  which  he  dare  not  disobey, 
presents  a  matter  of  urgency,  and  it  is  within 
the  discretion  of  the  Federal  court  to  at  once 
take  cognizance  of  the  case,  and  act  at  once, 
rather  than  allow  the  case  to  be  carried  through 
three  courts,  taking  two  or  three  years  of  time." 
(In  re  Turner,  119  Fed.  Rep.,  231.)  [In  this 
case  an  officer  of  the  Army  was  enjoined  by 
a  State  court  from  obeying  the  orders  of  the 
Secretary  of  War.  He  disregarded  the  in- 
jimction  and  was  attached  and  imprisoned  for 
contempt.  His  release  was  ordered  by  the 
Federal  court  upon  writ  of  habeas  corpus.] 

There  is  no  act  of  Congress  authorizing  a  call 
by  the  governor  of  a  State  for  the  surrender  of  an 
officer  of  the  Navy  charged  with  having  broken 
the  peace  of  such  State,  nor  any  law  authorizing 
an  arrest  by  the  Executive  with  a  view  to  a 
forcible  surrender  by  him  for  the  purposes  of 
trial.  However,  advised  that  the  accused  be 
ordered  by  the  Navy  Department  to  surrender 
himself.  (1  Op.  Atty.  Gen.,  244.  See  further, 
note  to  Art.  IV,  sec.  2,  clause  2,  and  Art.  I,  sec. 
8,  clause  14;  see  also  note  to  sec.  355,  Revised 
Statutes.) 

The  State  authorities  are  not  empowered  to 
arrest  persons,  either  in  the  naval  or  the  civil 
service  of  the  United  States,  within  the  limits 
of  a  navy  yard,  whether  on  shore  or  on  board 
vessels  at  the  yard,  without  fir.st  obtaining  the 
permission  of  the  commandant,  to  the  end  that 
such  service  of  process  shall  not  interfere  with 
or  obstruct  operations  of  the  United  States  Gov- 
ernment.    (File  6769-21,  July  19,  1911.) 

However,  where  a  police  officer,  holding  a 
warrant  for  the  arrest  of  an  enlisted  man  upon 
a  charge  of  misdemeanor,  persuaded  the  man 
to  leave  his  vessel  on  liberty  and  accompany 
the  police  officer  outside  the  limits  of  the  navy 
yard,  there  making  the  arrest,  it  was  held  by  the 


51 


Art.  I,  Sec.  8. 


Pt.  1.   THE  CONSTITUTION. 


The  Navy. 


Attorney  General  that  while  there  are  authori- 
ties which  iudirato  that  an  ai>])lication  to  the 
coinniandins^  otiiror  is  a  norcssary  condition 
precedent  to  the  State's  acquirinc:  jurisdiction 
(especially  Ex  ]>arte  McRol>crts,  l(j  Iowa,  GOO, 
G04),  yet  the  better  Wew,  as  held  in  the  case  of 
In  re  O'Connor  (:]7  Wis.,  379),  is  that  applica- 
tion to  the  commandinfr  ollicer  is  not  juris- 
dictional, the  matter  l)cin,i;  one  that  does  not  go 
to  the  jurisdiction  ol"  the  civil  court  issuing  the 

Iirocess;  that  there  is  no  doubt  that  the  mem- 
)ers  of  the  military  forces  of  the  United  States 
are  8ul)ject  in  times  of  ]ieace  to  the  criminal 
laws  of  the  States;  and,  accordingly,  that  want 
of  an  ai)i)lication  to  the  commanding  oflicer 
would  be  a  mere  informality  which  might  make 
the  warrant  of  arrest  irregular  but  would  not 
make  it  void  or  liable  to  be  attacked  upon  a 
habeas  corpus  ])roceeding.  (File  7657-261:1, 
Nov.  M,  19J4.) 

"If  the  civil  magistrate  has  become  de  facto 
seized  of  a  case  of  murder,  if  indictment  is 
pending,  if  the  accused  is  thus  in  the  actual 
jurisdiction  of  the  law  of  the  land,  it  is  not  mate- 
rial to  the  validity  of  the  proceedings  at  law 
and  the  right  of  the  magistrate  to  go  on  accord- 
ing to  the  lex  loci,  whether  the  party  passed 
into  the  hands  of  the  magistrate  regularly,  by 
the  act  and  with  the  consent  of  his  commanding 
officer,  or  whether  by  breach  of  arrest  of  the 
partv,  desertion,  or  anv  other  violation  of  mili- 
tarj^'duty."     (6  Op.  Atty.  Gen.,  413.) 

A  mail  carrier,  although  on  duty,  is  subject 
to  arrest  by  the  State  authorities  upon  a  charge 
of  murder.  (U.  S.  v.  ICirby,  7  Wall.,  482,  hold- 
ing specifically  that  the  police  officer  making 
such  arrest  was  not  su])ject  to  criminal  proceed- 
ings for  \dolation  of  the  Federal  statute  against 
delajdng  the  mails.)  From  this  decision  of  the 
Sui)reme  Court  it  would  appear  that  the  well- 
established  principle,  that  the  State  authorities 
can  not  interfere  with  an  instrumentality  of  the 
Federal  Government,  is  subject  to  an  excejition 
in  a  case  where  a  person  of  the  Federal  Govern- 
ment is  arrested  in  good  faith,  upon  a  charge  of 
felony.  However,  it  would  seem  that  the 
charge  upon  which  such  an  arrest  is  made 
would  require  a  very  clear  prima  facie  case  to 
warrant  such  action,  as  otherwise  the  Federal 
Government  might  be  seriously  interfered  with 
and  embarrassed  in  its  official  functions.  In  the 
case  presented,  an  enlisted  man  was  arrested 
upon  a  charge  of  felony  while  traveling  through  a 
State  under  orders;  was  acquitted ,  and  has  been 
released  and  proceeded  to  carry  out  his  orders. 
This  would  have  been  a  good  casein  which  to  test 
the  question,  in  view  of  the  fact,  as  now  appears, 
that  the  charge  was  wholly  without  foundation. 
In  its  present  status  it  does  not  a])]iear  that 
there  is  any  action  which  can  be  taken  by  the 
Government.  Should  another  case  of  this 
character  arise,  and  the  department  be 
promptly  informed  thereof,  consideration  might 
be  given  to  the  feasiljility  of  having  the  legality 
of  the  arrest  tested  in  hal)eas  corpus  proceedings 
instituted  in  behalf  of  the  United  States.  (File 
26524-70,  Aug.  12,  1914.) 

The  imposition  of  a  sentence  of  imprisonment 
for  60  days  on  a  solflier  by  the  authorities  of  a  city 
for  a  ^dolation  of  a  city  ordinance,  where  the  act 
charged  did  not  result  in  nor  threaten  any  in- 
jury to  person  or  property,  is  unwarranted,  and 


the  soldier  will  be  discharged  by  the  Federal 
court  and  restored  to  the  custody  of  his  com- 
manding oflicer,  on  ])etition  of  the  latter  in  ha- 
beas cor])U3  i)roceeding3.  (Ex  parte  Schlaffer, 
15-1  Fed.  Rep..  921.) 

While  an  enlisted  soldier  in  time  of  ])eace  may 
be  subjected  to  arrest  and  punishment  for  vio- 
lation of  a  numici])al  ordinance,  the  same  as  a 
civilian,  yet  where  any  ])unishment  is  sought  to 
be  iullicted  which  will  interfere  Avith  the  per- 
formance of  the  duties  which  he  owes  to  the 
United  States,  the  utmost  good  faith  is  required 
from  the  civil  authorities  and  any  unfa  ir  or  un- 
just discrimination  against  the  offender  because 
he  is  a  soldier,  or  departure  from  the  strict  re- 
quirements of  the  law,  or  any  cruel  or  unusual 
punishment,  can  be  as  justly  inquired  into  by 
the  Federal  courts  in  proceedings  instituted 
by  his  commanding  officer  as  it  can  be  in  pro- 
tecting the  interests  of  the  United  States  in  any 
matter  where  its  necessary  governmental  agen- 
cies are  involved.  (Ex  parte  Schlaffer,  154 
Fed.  Rep.,  921.) 

"A  court  or  judge  of  the  United  States  has 
power  to  issue  a  writ  of  habeas  corpus  on  peti- 
tion of  the  United  States  for  the  purpose  of  an 
inquiry  into  the  cause  of  detention  of  a  ])risoner 
held  by  a  State  to  answer  to  a  criminal  charge, 
where  it  is  alleged  by  the  petitioner  that  the  act 
charged  as  a  crime  was  committed  by  the  pris- 
oner in  the  performance  of  his  duty  as  a  soldier 
of  the  United  States;  and  it  has  authority  to  de- 
termine summarily  as  a  fact  whether  or  not  such 
allegation  is  true,  and  if  found  to  be  true  to  dis- 
charge the  prisoner  on  the  ground  that  the  State 
is  without  jurisdiction  to  try  him  for  such  act." 
(U.  S.  V.  Lipsett,  156  Fed.  Rep.,  65.) 

"It  is  an  exceedingly  delicate  jurisdiction 
given  to  the  Federal  courts  by  which  a  person 
under  an  indictment  in  a  State  court,  and  sub- 
ject to  its  laws,  may,  by  the  decision  of  a 
single  judge  of  the  Federal  court,  upon  a  writ 
of  habeas  corpus,  be  taken  out  of  the  custody 
of  the  officers  of  the  State  and  finally  discharged 
therefrom,  and  thus  a  trial  by  the  State  court 
of  an  indictment  foimd  under  the  laws  of  that 
State  be  finally  prevented.  Cases  have  oc- 
cui'red  of  so  exceptional  a  nature  that  this 
course  has  been  pursued."  (Drury  v.  Lewis, 
200  U.  S.,  1,  quoting  from  Baker  v.  Grice,  169 
U.  S.,  284.  In  the  Drury  case  the  court  re- 
manded the  accused  for  trial  to  the  State 
court,  the  evidence  being  conflicting  as  to 
whether  or  not  he  had  in  fact  exceeded  his 
Federal  authority.) 

We  are  of  opinion  that  while  the  circuit  coiirt 
has  the  power  to  do  so,  and  may  discharge  the 
accused  in  advance  of  his  trial,  if  he  is  re- 
strained of  his  liberty  in  violation  of  the 
National  Constitution,  it  is  not  bound  in  every 
case  to  exercise  such  a  power  immediately  upon 
application  for  the  writ.  We  can  not  suppose 
that  Congress  intended  to  compel  those  courts, 
by  such  means,  to  draw  to  themselves,  in  the 
first  instance,  the  control  of  all  criminal  prose- 
cutions commenced  in  State  courts  exercising 
authority  within  the  same  territorial  limits, 
where  the  accused  claims  that  he  is  held  in 
custody  in  violation  of  the  Constitution  of  the 
United  States.  The  Federal  courts  should 
exercise  their  discretion  in  the  Light  of  the  rela- 
tions existing  under  our  system  of  Govem- 


52 


The  Navy. 


PL  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


ment  between  the  judicial  tribunals  of  the 
Union  and  of  the  States,  and  in  recognition  of 
the  fact  that  the  public  good  requires  that  those 
relations  be  not  disturbed  by  unnecessary  con- 
flict between  courts  equally  bound  to  regard 
and  protect  rights  secured  by  the  Constitution. 
(Ex  parte  Royall,  117  U.  S.,  241;  see  also 
Tiusley  v.  Anderson,  171  U.  S.,  101;  Ex  parte 
Wood,  155  Fed.  Rep.,  190.) 

In  the  absence  of  express  statutory  authori- 
zation, the  general  authority  of  the  President 
to  see  that  the  laws  of  the  United  States  are 
faithfully  executed  empowered  him  to  ap- 
point a  deputy  marshal  to  protect  a  Federal 
judge  whose  life  was  threatened  in  consequence 
of  the  conscientious  and  faithful  discharge  of 
his  duties.  Where  such  deputy  was  arrested 
and  brought  to  trial  in  a  State  court  upon  a 
charge  of  minder,  for  a  homicide  committed 
while  acting  witliin  the  line  of  duty  thus  as- 
signed him,  he  was  entitled  to  release  on  habeas 
corpus  issued  by  a  Federal  judge.  (In  re 
Neagle,  135U.  S.,  1.) 

It  is  recognized  that  during  times  of  peace 
the  military  power  in  the  United  States  is  sub- 
ordinate to  the  ciWl,  and  that  an  enlisted  man 
is  amenable  to  the  statutory  law  and  under 
proper  circumstances  and  on  necessary  occa- 
sions may  be  subject  to  arrest  and  detention 
for  the  violation  of  municipal  ordinances  the 
same  as  any  ciNilian.  The  relations  existing 
between  the  police  force  and  the  enlisted  men 
and  the  peace  and  welfare  of  the  community 
demand  consistent  and  harmonious  action,  both 
by  the  ofhcers  in  command  on  the  one  side  and 
the  higher  municipal  authorities  on  the  other, 
in  checking  and  controlling  the  forces  under 
each.  The  enUsted  man  should  be  as  obedient 
and  sub-serxdent  to  cIatI  law  when  called  upon 
as  he  is  to  mihtaiy  law,  and  the  municipal  au- 
thorities should  recognize  his  peculiar  condi- 
tions and  res])onsibilities  and  act  in  harmony 
and  accord  with  his  officers.  It  is  not  consid- 
ered that  enlisted  men  should  be  treated  and 
held  in  any  detention  or  attempted  ]:)unish- 
ment  the  same  as  though  they  were  answerable 
to  no  other  power.  Their  position  and  the  re- 
cpiirements  of  their  con'stitutional  duty- demand 
in  behalf  of  the  National  Government  from  the 
municipal  authorities  such  a  recognition  of  its 
rights  as  would  accomplish  a  preservation  of 
the  peace  and  the  observance  of  the  city  ordi- 
nances without  in  any  way  affecting  their  du- 
ties as  soldiers.  (Ex  parte  Schlaffer,  154  Fed. 
Rep.,  921.) 

Where  persons  in  the  Navy  or  Marine  Corps 
are  arrested  by  the  Federal  or  State  authorities 
Avhile  on  leave  for  criminal  offenses  and  return 
to  duty  under  bail,  they  may  be  granted  leave 
of  absence  by  their  commanding  officer  in  order 
to  appear  in  the  ciAdl  court  for  trial.  (File 
5322,  G.  O.  No.  121,  par.  17,  Navy  Dept.,  Sept. 
17,  1914.) 

_  By  enlistment  a  person  is  not  absolved  from 
liability  to  arrest  for  taxes  on  property  due  pre- 
vious to  his  enlistment.  (Webster  v.  Seymour, 
8Vt.,  135.) 

State  courts  can  not  order  release  of 
persons  held  by  authority  of  United 
States. — "Xo  State,  judge,  or  court,  after  they 
are  judicially  informed  that  a  party  is  im- 
prisoned under  the  authority  of  the  United 


States,  has  any  right  to  interfere  with  him,  or 
require  him  to  be  brought  before  them.  And 
if  the  authority  of  the  State,  in  form  of  judicial 
process  or  otherwise,  should  attempt  to  control 
the  marshal  or  other  authorized  officer  of  the 
United  States,  in  any  respect,  in  the  custody 
of  his  prisoner,  it  would  be  his  duty  to  resist  it, 
and  to  call  to  his  aid  any  force  that  might  be 
necessary'  to  maintain  the  authority  of  the  law 
against  illegal  interference."  (Ableman  v. 
Booth,  21  How.,  506.) 

"We  do  not  question  the  authority  of  the 
State  court,  or  judge,  who  is  authorized  by  the 
laws  of  the  State  to  issue  the  writ  of  habeas 
corpus,  to  issue  it  in  any  case  where  the  party 
is  imprisoned  within  its  territorial  Limits,  pro- 
\'ided  it  does  not  appear,  when  the  application 
is  made,  that  the  person  imprisoned  is  in  cus- 
tody under  the  authority  of  the  United  States. 
Tliecourtor  judge  has  a  right  to  inquire,  in  this 
mode  of  proceeding,  for  what  cause  and  by 
what  authority  the  prisoner  is  confined  within 
the  territorial  limits  of  the  State  80vereignt\^ 
But  after  the  return  is  made,  and  the  State 
judge  or  court  is  judicially  apprised  that  the 
party  is  in  custody  under  the  authority  of  the 
United  States,  they  can  proceed  no  furtlier." 
(Ableman  v.  Booth,  21  How.,  506;  see  also 
United  States  v.  Tarble,  1.3  Wall.,  397.) 

In  the  event  that  a  writ  of  habeas  corpus 
should  be  issued  by  a  State  court  to  a  com- 
manding officer  of  the  Navy  or  Marine  Corps, 
afloat  or  ashore,  the  latter  will  commimicate 
with  the  Secretary  of  the  Nav^^;  and,  if  in- 
structions are  not  received  by  the  commanding 
officer  from  the  Secretary  of  the  Nai-y  by  the 
return  day  of  the  writ,  the  officer  upon  whom 
the  writ  is  served  will  make  return  thereto, 
showing  that  the  party  is  held  by  authority  of 
the  United  States,  but  without  producing  the 
bodv  of  the  partv  in  court.  (G.  O.  No.  121, 
Sept.  17, 1914; compare  12  Op.  Atty.  Gen.,  258.) 

State  courts  cannot  punish  perjury 
committed  before  Federal  court. — "The 
power  of  punishing  a  witness  for  testifying 
falsely  in  a  judicial  proceeding  belongs  pecu- 
liarly to  the  Government  in  whose  tribunals 
that  proceeding  is  had.  It  is  essential  to  the 
impartial  and  efficient  administration  of  justice 
in  the  tribunals  of  the  Nation  that  witnesses 
should  be  able  to  testify  freely  before  them,  un- 
restrained by  legislation  of  the  State  or  by  fear 
of  punishment  in  the  State  courts.  The  ad- 
ministration of  justice  in  the  national  tribunals 
would  be  greatly  embarrassed  and  impeded  if 
a  witness  testifying  before  a  court  of  the  Umted 
States,  or  upon  a  contested  election  of  a  Member 
of  Congress,  were  Liable  to  prosecution  and 
punishment  in  the  courts  of  a  State  upon  a 
charge  of  perjury  preferred  by  a  disappointed 
suitor  or  contestant  or  instituted  by  local  pas- 
sion or  prejudice.  A  witness  who  gives  his 
testimony,  pursuant  to  the  Constitution  and 
laws  of  the  United  States,  in  a  case  pending  in 
a  court  or  other  judicial  tribunal  of  the  United 
States,  whether  he  testifies  in  the  presence  of 
that  tribunal,  or  before  any  magistrate  or  officer 
either  of  the  Nation  or  of  the  State)  designated) 
by  act  of  Congress  for  that  purpose,  is  account- 
able for  the  truth  of  his  testimony  to  the  United 
States  only;  and  perjury  committed  in  so  testi- 
fying is  an  offense  against  the  pubhc  of  the 


53 


Art.  I,  Sec.  8. 


Pi.  1.   TUE  CONSTITUTION. 


The  Navy. 


United  States,  and  within  the  exchiaivc  juris- 
diction of  the  courta  of  the  United  fcjtates." 
(Tlionuia  r.  I-,oney,  134  U.  S.,  372.) 

Mandamus  against  Federal  officers. — 
See  nolo  to  Article  11,  section  1,  clause  1, 
"^huuiainurt  a.u'ainst  heads  of  d(']>artiuciit,s.'' 

Habeas  coi-pus  proceedings  in  Federal 
courts  to  discharge  persons  from  the 
Navy. — \\'here  a  peraon  is  being  held  for  trial 
by  court-martial,  he  will  nut  bedi.sdiarged  from 
the  jurisdiction  of  the  court  and  from  the  nuli- 
tary  service  even  though  hi.s  original  enlistment 
was  fraudulent.  (In  re  Morrissey,  137  U.  S., 
157;  Ex  parte  Rock,  171  Fed.  Kep.,  240;  Dil- 
lingham V.  Booker,  l(i3  Fed.  Kei).,  090,  file 
595(>-(i;  In  re  Scott,  144  Fed.  Kep.,  79,  file 
2757^;  In  re  Lessard,  134  Fed.  Kep.,  305; 
U.  S.  V.  Reaves,  126  Fed.  Kep.,  127,  file  152-04; 
Solomon  v.  Davenport,  87  Fed.  Re]).,  318;  see 
also  file  5624,  Feb.  17,  1896;  compare  Ex  parte 
Baklej,  148  Fed.  Rep.,  56,  afiirmed,  Dilling- 
ham V.  Baklev,  152  Fed.  Rep.,  1022,  file  5506-5; 
and  Ex  parte  Lisk,  145  Fed.  Rep.,  860,  file 
2757-8,  in  which  latter  cases  the  court  ordered 
the  petitioner's  release  from  naval  custody.) 

For  other  decisions,  see  note  to  Article  I ,  sec- 
tion 8,  clause  14,  "Judgments  of  courts-martial 
acting  within  their  jurisdiction  not  open  to  re- 
view l)y  civil  courts,"  and  see  note  to  section 
761,  Revised  Statutes. 

IV.  Responsibility   of  Military   Authori- 
ties FOR  Illegal  Acts. 

Civil  responsibility  of  persons  in  military 
service. — "No  man  in  this  country  is  so  high 
that  he  is  above  the  law.  No  officer  of  the  law 
may  set  that  law  at  defiance  with  impunity. 
All  the  officers  of  the  Government,  from  the 
highest  to  the  lowest,  are  creatures  of  the  law 
and  are  bound  to  obey  it.  It  is  the  only  su- 
preme power  in  our  system  of  Government,  and 
every  man  who  by  accepting  office  participates 
in  its  functions  is  only  the  more  strongly  bound 
to  submit  to  the  supremacy  and  to  observe  the 
liabilities  wliich  it  imposes  upon  the  exercise  of 
the  authority  wliicli  it  gives."  (U.  S.  v.  Lee, 
106  U.S.,  196.) 

A  person  making  an  illegal  arrest,  even  when 
the  privilege  of  the  writ  of  habeas  corpus  is  sus- 
pended, is  liable  to  damages  in  a  civil  suit  for 
such  arrest,  and  to  punishment  in  a  criminal 
prosecution.     (Griffin  v.  Wilcox,  21  Ind.,  372.) 

Although  martial  law  exists,  "no  more  force 
*  *  *  can  be  used  than  is  necessary  to  ac- 
complish the  object.  And  if  the  power  is  exer- 
cised for  the  purpose  of  oppression  and  any  in- 
jury willfully  done  to  person  or  property,  the 
party  by  whom  or  by  whose  order  it  is  com- 
mitted, will  undoubtedly  be  answerable." 
(Luther  v.  Borden,  7  How.,  1.) 

At  the  close  of  the  War  of  1812,  Gen.  Jackson 
was  sentenced  to  pay  a  fine  of  $1,000  for  con- 
tempt of  court,  in  refusing  obedience  to  a  writ  of 
habeas  corpus,  which  fine  he  paid.  (See  Dow  v. 
Johnson,  100  U.  S.,  158, 194,  noted  under  Art.  I, 
sec.  8,  clause  11,  "Effect  of  martial  law  ".) 

Captain  of  a  ship. — "No  doubt  there  are 
cases  where  the  expert  on  the  spot  may  be 
called  upon  to  justify  his  conduct  later  in 
court,  notwithstanding  that  he  had  sole  cona- 
mand  at  the  time  and  acted  to  the  best  of  his 


knowledge.  That  is  the  position  of  the  cajitain 
of  a  ship."     (Moyer  v.  Peabody,  212  U.  S.,  78.) 

A  commanding  officer  in  the  Navy  "is  not  to 
be  shielded  from  re.sponsibility  if  he  acts  out  of 
his  authority  or  jurisdiction,  or  inflicts  private 
injury,  either  from  malice,  cruelty,  or  any 
species  of  opi)reasion  founded  on  considerations 
independent  of  public  ends.  The  humblest 
seaman  or  marine  is  to  be  sheltered  under  the 
aegis  of  the  law  from  any  real  wrong  as  well  as 
the  highest  in  office."  (Wilkes  v.  Dinsman, 
7  How.,  89.)  [In  tliis  case  suit  was  brought  by  a 
marine  against  the  commanding  officer  of  a 
squadron,  the  marine  alleging  that  he  was  ille- 
gally detained  on  board  after  the  expiration  of 
his  term  of  enlistment,  and  that  he  was  illegally 
punished  by  the  commanding  officer.  Judg- 
ment was  given  against  the  squadron  com- 
mander, but  was  reversed  by  the  Supreme 
Court,  which,  while  making  the  above  state- 
ment as  to  the  responsibility  of  commanding 
officers,  held  that  in  this  case  the  detention  was 
legal,  and  that  the  commanding  officer  had  the 
legal  right  to  infiict  punishment;  that  "the 
commander  was  acting  as  a  public  officer, 
invested  with  certain  discretionary  powers, 
and  can  not  be  made  answerable  for  any  injury 
when  acting  within  the  scope  of  his  authority 
and  not  influenced  by  malice,  corruption,  or 
cruelty.  His  position  is  quasi  judicial.  Hence 
the  burden  of  proof  that  the  officer  exceeded  his 
powers  is  upon  the  party  complaining ;  the  rule 
of  law  being  that  the  acts  of  a  public  officer  on 
public  matters  witliin  his  jurisdiction,  and 
where  he  has  a  discretion,  are  to  be  presumed 
legal  until  shown  by  others  to  be  unjustifiable. 
It  is  not  enough  to  show  that  he  committed  an 
error  in  judgment,  but  it  must  have  been  a 
malicious  and  willful  error."  See  Dinsman  v. 
Wilkes  (12  How.,  389^.] 

Members  of  a  court-raartial.— Members 
of  a  duly  constituted  and  organized  naval  court- 
martial  "are  responsible  in  civil  courts  for  any 
abuse  of  power  or  illegal  proceedings."  (Par. 
241,  Naval  Courts  and  Boards,  1917.)  [On  gen- 
eral subject  of  responsibility  of  judges  of  civil 
courts,  see  Spalding  v.  Vilas,  161  U.  S.,  483, 
and  Bradley  v.  Fisher,  13  Wall.,  335.] 

"If  a  court-martial  has  no  jurisdiction  over 
the  subject  matter  of  the  charge  it  has  been 
convened  to  try,  or  shall  inflict  a  punishment 
forbidden  by  law,  though  its  sentence  shall  be 
approved  by  the  officers  having  a  revisory  power 
of  it,  civil  courts  may  on  an  action  of  a  party 
aggrieved  by  it  inquire  into  the  want  of  the 
court's  jurisdiction  and  give  him  redress." 
(Dynes  v.  Hoover,  20  How.,  65.) 

"In  such  cases,  as  has  just  been  said,  all  of 
the  parties  to  such  illegal  trial  are  trespassers 
upon  a  party  aggrieved  by  it,  and  he  may  re- 
cover damages  from  them  on  a  proper  suit  in  a 
civil  court  by  the  verdict  of  a  jury. ' '  (Dynes  v. 
Hoover,  20  How.,  65.) 

' '  According  to  our  laws,  all  military  courts  are 
under  a  constant  subordination  to  the  ordinary 
courts  of  law.  Officers  who  have  abused  their 
powers,  though  only  in  regard  to  their  own  sol- 
diers, are  liable  to  prosecution  in  a  court  of  law, 
and  compelled  to  make  satisfaction.  Even  any 
flagrant  abuse  of  authority  by  members  of  a 
court-martial,  when  sitting  to  judge  their  own 
people  and   determine  in  cases  entirely  of  a 


54 


The  Navy. 


PL  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


military  kind,  makes  them  liable  to  the  animad- 
version of  the  civil  judge."  (Johnson  v.  Dun- 
can, 6  Am.  Dec,  (j7!J;  3  Martin  (La.),  530.) 

Judge  Advocate  General  of  the  Navy. — 
In  1904  suit  was  entered  by  Paymaster  Robert 
B.  Rod uey, retired, against Capt.  Sam.  C.  Lemly, 
Judge  Advocate  General  of  the  Navy,  based 
upon  action  alleged  to  have  been  taken  by 
Captain  Lemly  in  hia  official  capacity.  The 
rnited  States  attorney  for  the  District  of  Co- 
lumbia was  instructed  by  the  Department  of 
Justice  to  appear  in  behalf  of  the  Judge  Advo- 
cate General  in  response  to  the  summoiis  upon 
the  latter.  June  23,  1904,  an  order  was  entered 
by  the  chief  justice  of  the  Supreme  Court  of 
the  District  of  Columbia  dismissing  the  suit. 
(At  law.  No.  4G683,  Supreme  Couirt  of  the  Dis- 
trict of  Columbia;  file  204-04.) 

Illegal  order  not  a  defense. — "It  can 
never  be  maintained  that  a  military  officer  can 
justify  himself  for  doing  an  unlawful  act  by 
producing  the  order  of  his  superior.  The  order 
may  palliate,  but  it  can  not  justify'."  (Mitchell 
V.  Harmony,  13  Wall.,  115.) 

''Neither  the  Secretary  of  the  Treasury  nor 
the  President  could  nullify  the  statute,  and 
though  the  defendant  [collector  of  the  port  of 
New  York]  may  have  thought  himself  bound  to 
obey  the  instructions  of  the  former,  his  mis- 
taken sense  of  duty  could  not  justify  his  refusal 
of  the  clearance,  and  these  instructions  afford 
him  no  protecticm  unless  they  were  authorized 
in  law."  (Hendricks i).  Gonzalez,  67  Fed.  Rep., 
351;  see  also  Kilbourn  v.  Thompson,  103  U.  S., 
168.) 

A  naval  officer  is  liable  in  an  action  of  trespass 
for  seizing  the  plaintiff's  ship  in  ol^edience  to 
an  order  of  the  President  based  upon  a  misinter- 
pretation by  him  of  an  act  of  Congress.  ''I  con- 
fess the  first  bias  of  my  mind  was  very  strong  in 
favor  of  the  opinion  that,  though  the  instruc- 
tionsof  the  Executive  could  not  give  a  right  they 
might  yet  excuse  from  damages.  I  was  much 
inclined  to  tliink  that  a  distinction  ought  to  be 
taken  between  acts  of  civil  and  those  of  mili- 
tary officers;  and  between  proceedings  within 
the  body  of  the  country  and  those  on  the  high 
seas.  That  implicit  obedience  which  military 
men  usually  pay  to  the  orders  of  their  superiors, 
and  wliich  indeed  is  indispensably  necessary  to 
every  military  system  appeared  to  me  strongly 
to  imply  the  principle  that  those  orders,  if  not 
to  perform  a  prohiliited  act,  ought  to  justify  the 
person  whose  general  duty  it  is  to  obey  them, 
and  who  is  placed  by  the  laws  of  his  country  in 
a  situation  which  in  general  requires  that  he 
should  obey  them.  *  *  *  But  I  have  been 
con\inced  ihat  I  was  mistaken,  and  I  have  re- 
ceded from  this  first  opinion.  I  acquiesce  in 
that  of  my  brethien,  wliich  is  that  the  in- 
structions can  not  change  the  nature  of  the 
transaction  nor  legalize  an  act  which  without 
them  would  have  been  a  plain  trespass. ' '  (Lit- 
tle D.  Barreme,  2  Cranch,  170,  opinion  of  Cliief 
Justice  Marshall.)  [In  this  case  the  Supreme 
Court  affirmed  the  judgment  of  the  lower  court 
against  the  officer,  in  the  sum  of  $8,504  damages 
and  costs.] 

"In  time  of  peace,  at  least,  an  officer  is  not 
obliged  to  obey  an  illegal  order.  *  *  *  It 
becomes  his  duty,  at  once  or  within  a  reason- 
able lime,  to  appeal  to  the  highest  authority 


for  revocation,  modification,  or  correction  of 
the  illegal  order."  (Ide  v.  U.  S.,  25  Ct.  Cls., 
407;  150  U.  S.,  517.     See  also  C.  M.  O.  37, 1915.) 

"Captain  Gambler,  of  the  British  Navy,  by 
the  order  of  Admiral  Boscawen,  pulled  down  the 
houses  of  sutlers  on  the  coast  of  Nova  Scotia, 
who  were  supplying  the  sailors  with  spirituous 
Liquors,  the  health  of  the  sailors  being  injured 
by  frequenting  them.  The  motive  was  evi- 
dently a  laudable  one,  and  the  act  done  for  the 
pubUc  service.  Yet  it  was  an  invasion  of  the 
rights  of  private  property  and  without  the  au- 
thority of  law,  and  the  officer  who  executed  the 
order  was  held  liable  to  an  action,  and  the  sut- 
lers recovered  damages  against  him  to  the  value 
of  the  property  destroyed."  (See  Mitchell  v. 
Harmony,  13  How.,  115.) 

An  officer  of  the  Army  was  sued  for  seizing 
property  of  plaintiff  diuing  the  war  with  Mex- 
ico imder  the  order  of  his  superior  officer. 
Judgment  was  rendered  against  defendant  and 
affirined  bv  the  Supreme  Court,  amounting  to 
$104,562.23.  Plaintiff  was  a  trader  and  went 
from  the  United  States  into  the  adjoining  Mexi- 
can pro\inces,  which  were  in  possession  of  the 
military  authorities  of  the  United  States,  for 
the  piu-pose  of  caiTying  on  a  trade  which  was 
sanctioned  by  the  executive  branch  of  the 
Government  (as  a  means  to  conciliation  of  the 
pro\'inces  bordering  on  the  L^nited  States)  and 
also  by  the  commanding  military  officer.  "It 
is  certainly  true  as  a  general  rule  that  no  citizen 
could  lawfully  trade  with  a  pubUc  enemy;  and 
if  foimd  to  be  engaged  in  such  illicit  traffic  hia 
goods  are  liable  to  seizure  and  confiscation. 
But  the  rule  has  no  application  to  a  case  of  this 
kind;  nor  can  an  officer  of  the  United  States 
seize  the  property  of  an  American  citizen  for  an 
act  which  the  constituted  authorities,  acting 
within  the  scope  of  their  lawful  powers,  have 
authorized  to  be  done."  Accordingly  held 
that  "it  was  improper  for  an  officer  of  the 
United  States  to  seize  the  property  upon  the 
ground  of  trading  with  the  enemy;"  and  that 
'the  officer  w^ho  made  the  seiziu-e  can  not  jus- 
tify his  trespass  by  shoA\'ing  the  orders  of  hia 
superior  officer.  An  order  to  commit  a  trespass 
can  afford  no  justification  to  the  person  by 
whom  it  was  executed; "  that  "if  the  jjower  ex- 
ercised by  Col.  Doniphan  had  been  within  the 
limits  of  a  discretion  confided  to  him  by  law, 
his  order  would  have  justified  the  defendant 
even  if  the  commander  had  abused  his  power 
or  acted  from  improper  motives.  But  we  have 
already  said  that  the  law  did  not  confide  to 
him  a  discretionary  power  over  private  prop- 
erty. Urgent  necessity  would  alone  give  him 
the  right;  and  the  verdict  finds  that  this  ne- 
cessity did  not  exist.  Consequently  the  order 
given  was  an  order  to  do  an  illegal  act,  to  com- 
mit a  trespass  upon  the  property  of  another, 
and  can  afford  no  justification  to  the  person  by 
whom  it  was  executed.  The  case  of  Captain 
Gambier,  to  which  we  have  just  referred,  is  di- 
rectly in  point  upon  this  question."  (Mitchell 
V.  Harmony,  13  How.,  115.) 

"The  willful  killing  of  a  soldier  by  a  guard 
may  be  as  clearly  murder  as  the  willful  killing 
of  one  citizen  by  another.  Nor  will  any  order 
of  a  superior  officer  to  an  inferior  in  rank  justify 
the  willful  killing  of  a  person  under  the  peace 
and  protection  of  the  law.    A  soldier  is  bound 


55 


Art.  I,  Sec.  8. 


n.  1.   THE  CONSTITUTION. 


The  Navy. 


to  obey  only  the  lawful  orders  of  his  superiors. 
If  he  receive.s  an  order  to  do  an  unlawful  act,  he 
is  bound  neitlier  by  his  duty  nor  his  oath  to  do 
it.  So  far  from  such  an  order  being  a  justifica- 
tion, it  makes  the  party  giving  the  order  an 
jicconi]ilice  in  the  crime.  For  instance,  an  or- 
der from  an  officer  to  a  soldier  to  shoot  another 
for  disrespectfid  words  merely  would,  if  obeyed, 
be  murder  both  in  the  officer  and  soldier." 
(U.  S.  V.  Carr,  25  Fed.  Cas.  No.  14732;  see  be- 
low,"  Order  not  clearly  illegal  may  be  defense," 
and  "Extenuating  and  aggravating  circum- 
stances.") 

Order  not  clearly  illegal  may  be  de- 
fense.— "The  law  is  that  an  order  given  by  an 
iithcer  to  his  private,  which  does  not  expressly 
or  clearly  show  on  its  face  its  illegality,  the 
soldier  is  bound  to  obey;  and  such  order  is  his 
full  protection.  The  first  duty  of  a  soldier  is 
obedience,  and  without  this  there  can  be 
neither  discipline  nor  efficiency  in  an  army. 
If  every  subordinate  officer  and  soldier  were  at 
liberty  to  question  the  legality  of  the  orders  of 
the  commander,  and  obey  them  or  not  as  he 
may  consider  them  valid  or  invalid,  the 
precious  moment  for  action  would  be  wasted. 
Its  law  ia  that  of  obedience.  No  question  can 
be  left  open  of  the  right  to  command  in  the 
armv,  or  of  the  duty  of  obedience  in  the  soldier. " 
(In  re  Fair,  100  Fed.  Rep.,  149;  U.  S.  v.  Lipsett, 
156  Fed.  Rep.,  71.) 

An  order  illegal  in  itself  and  not  justifiable 
by  the  rules  and  usages  of  war,  so  that  a  man 
of  ordinary  sense  and  understanding  would 
know  when  he  heard  it  read  or  given  that  the 
order  was  illegal,  would  afford  a  soldier  no 
protection  for  a  crime  committed  under  such 
order;  but  an  order  given  by  an  officer  to  his 
private  which  does  not  expressly  and  clearly 
show  on  its  face  or  body  thereof  its  own  illegality 
the  soldier  would  be  bound  to  obey  and  such 
order  would  be  a  protection  to  him.  (Riggs  v. 
State,  43  Tenn.  (3  Cold.),  85;  U.  S.  v.  Clark,  31 
Fed.  Rep.,  710,  717.) 

"  Except  in  a  plain  case  of  excess  of  authority, 
where  at  first  blush  it  is  apparent  and  palpable 
to  the  conunonest  understanding  that  the  order 
is  illegal,  I  can  not  but  think  that  the  law 
should  excuse  the  military  subordinate  when 
acting  in  obedience  to  the  order  of  his  com- 
mander. Otherwise  he  is  placed  in  the  dan- 
gerous dilemma  of  being  liable  for  damages  to 
third  persona  for  obedience  to  an  order,  or  to 
the  loss  of  his  commission  and  disgrace  for 
disobedience  thereto  *  *  *,  The  first  duty 
of  a  soldier  is  obedience,  and  without  this  there 
can  be  neither  discipline  nor  efficiency  in  the 
Army.  If  every  suboidinate  officer  and 
soldier  were  at  liberty  to  question  the  legality 
of  the  orders  of  the  commander,  and  obey  them 
or  not  as  he  may  consider  them  vaUd  or  invaUd, 
the  camp  would  be  turned  into  a  debating 
school  where  the  precious  moment  for  action 
would  be  wasted  in  wordy  conflicts  between 
the  advocates  of  conflicting  opinions. ' '  (McCall 
V.  McDowell,  15  Fed.  Cas.  No.  8G73;  quoted 
with  approval,  U.  S.  v.  Clark,  31  Fed.  Rep., 
710,  716;  U.  S.  v.  Lipsett,  156  Fed.  Rep.,  71.) 

"A  miUtary  subordinate  is  not  hable  in 
damages  for  making  an  illegal  arrest  if  he  acted 
in  pursuance  of  an  order  from  his  superior  wliich 
was  legal  on  its  face;  the  hability  for  the  false 


imprisonment  ia  confined  to  the  officer  who 
gave  the  order."  (McCall  v.  McDowell,  15 
Fed.  Cas.  No.  8673.) 

"The  defendant  does  not  stand  in  the  situ- 
ation of  an  oflicer  who  merely  obeys  the  com- 
mand of  his  superior,"  if  "it  ap]>ears  that  he 
advised  the  order  and  volunteered  to  execute 
it  when  according  to  miLitarj'  usage  that  duty 
more  properly  belonged  to  an  officer  of  inferior 
grade."     (Mitchell  v.  Harmony,  13  How.,  115.) 

"  Soldiers  might  ieasonal)ly  think  that  their 
officer  had  good  grounds  for  ordering  them  to 
fire  into  a  distirderly  crowd  which  to  them  might 
not  appear  to  be  at  that  moment  engaged  in 
a(;ts  of  dangerous  violence,  but  soldiers  could 
hardly  su])pose  that  their  officer  could  have 
any  good  grounds  for  ordering  them  to  fire  a 
volley  down  a  crowded  street  when  no  disturb- 
ance of  any  kind  was  either  in  progress  or 
apprehended.  The  doctrine  that  a  soldier  is 
bound  under  all  circumstances  whatever  to 
obey  his  superior  officer  would  be  fatal  to 
military  discipUne  itself,  for  it  would  justify 
the  private  in  shooting  the  colonel  Ijy  the  oiders 
of  the  captain,  or  in  deserting  to  the  enemy  on 
the  field  of  battle  on  the  order  of  his  immediate 
superior.  I  think  it  is  not  less  monstrous  to 
suppose  that  superior  orders  would  justify  a 
soldier  in  the  massacre  of  unoffending  civihans 
in  time  of  peace,  or  in  the  exercise  of  inhuman 
cruelties,  such  as  the  slaughter  of  women  and 
children,  during  a  rebelUon.  The  only  line 
that  presents  itself  to  my  mind  is  that  a  soldier 
should  be  protected  by  orders  for  wliich  he 
might  reasonably  beUeve  hia  officer  to  have 
good  grounds.  The  inconvenience  of  being 
subject  to  two  jurisdictions,  the  sjinpathies 
of  which  are  not  unUkely  to  be  opposed  to  each 
other,  is  an  inevitable  consequence  of  the 
double  necessity  of  preserving  on  the  one  hand 
the  supremacy  of  the  law,  and  on  the  other  the 
discipline  of  the  Army."  (2  Willoughby 
Con&t.,  1195,  quoting  1  Stephen's  Hist.  Cr.  L. 
Eng.,  205.) 

"An  army  is  not  a  deliberative  body.  It  is 
the  executive  arm.  Its  law  is  that  of  obedi- 
ence. No  question  can  be  left  open  as  to  the 
right  to  command  in  the  officer,  or  the  duty  of 
obedience  in  the  soldier."  (In  re  Grimley, 
137  U.  S.,  153.  See  also6  Op.  Attv.  Gen.,  357, 
365,  and  Martin  v.  Mott,  12  Wheat,,  30.) 

Extenuating  and  aggravating  circum- 
stances.— "In  respect  to  those  compulsory 
duties,  whether  in  reenlistiug  or  detaining  on 
board  or  in  punishing  or  imprisoning  on  shore, 
while  arduously  endeavoring  to  perform  them 
in  such  a  manner  as  might  advance  the  science 
and  commerce  and  glory  of  his  country  rather 
than  hia  own  personal  designs,  a  pubhc  officer 
invested  with  certain  discretionary  powers 
never  has  been  and  never  should  be  made 
answerable  for  any  injiu-y  when  acting  within 
the  scope  of  his  authority  and  not  influenced 
by  maUce,  corruption,  or  cruelty  *  *  *. 
The  officer  being  intrusted  with  a  discretion  for 
pubUc  puq)oses  is  not  to  be  punished  for  the 
exercise  of  it,  unless  it  is  first  proved  against 
him  either  that  he  exercised  the  power  con- 
fided to  bim  in  cases  without  his  jurisdiction 
or  in  a  manner  not  confided  to  him,  as,  with 
maUce,  cruehy,  or  willful  oppression,  or  in  the 
words  of  Lord  Mansfield,  that  he  exercised  it 


56 


The  Navy. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


as  if  'the  heart,  is  wrong.'  In  short,  it  is  not 
enough  to  show  that  he  committed  an  error  in 
judgment,  but  it  must  have  been  a  malicious 
and  wiUful  error."  (U.  S.  v.  Clark,  31  Fed. 
Rep.,  710,  716;  Wilkes  v.  Dinsman,  7  How.,  89.) 

"In  an  action  of  false  imprisonment  the 
defendant  [plaintiff],  by  his  gross  and  incen- 
diary language  on  the  news  of  the  assassination 
of  Abraham  LincoLn,  the  President  of  the 
United  States,  ha^ang  provoked  his  arrest, 
though  the  same  was  illegal,  such  provocation 
must  be  taken  into  account  in  mitigation  of 
damages."  (McCall  v.  McDowell,  15  Fed. 
Cas.  No.  8673.) 

"In  an  action  for  false  imprisonment,  where 
the  arrest  complained  of  was  illegal  but  was 
caused  by  the  defendant  while  acting  as  com- 
manding officer  of  a  military  department  of  the 
United  States,  without  malice  or  intention  to 
injure  or  oppress  the  plaintiff,  but  from  good 
motives  and  considerations  involving  the 
public  peace  and  safety,  the  plaintiff  is  only 
entitlecf  to  recover  compensatory  damages." 
(McCall  V.  McDowell,  15  Fed.  Cas.  No.  8673.) 

"The  move  upon  Chihuahua  was  imdoubt- 
edly  undertaken  from  high  and  patriotic  mo- 
tives. It  was  boldly  planned  and  gallantly 
executed  and  contributed  to  the  successful 
issue  of  the  war.  But  it  is  not  for  the  court  to 
say  what  protection  or  indemnity  is  due  from 
the  public  to  an  officer  who,  in  his  zeal  for  the 
honor  and  interest  of  his  country,  and  in  the 
excitement  of  military  oi>erations,  has  tres- 
passed on  private  rights.  That  question  be- 
longs to  the  political  department  of  the  Govern- 
ment."    (Mitchell  V.  Harmony,  13  How.,  115.) 

In  Beckwith  v.  Bean  (98  U.  S.,  266)  a  judg- 
ment for  $15,000  against  two  Army  officers  for 
arresting  a  civilian  during  the  Civil  War  on  the 
charge  of  aiding  and  abetting  deserters  from  the 
Army,  was  reversed  on  the  ground  that  certain 
evidence  in  mitigation  had  been  erroneously 
excluded  by  the  trial  court;  and  that,  if  the 
officers  acted  in  good  faith,  as  the  evidence  ex- 
cluded was  intended  to  show,  "they  were 
entitled  by  every  consideration  of  justice  to 
stand  before  the  jury  in  a  more  favorable  light 
upon  the  question  of  damages  than  they  would 
or  should  have  stood  had  they  been  actuated  by 
ill-will  or  sought  to  oppress  one  whose  conduct 
had  not  justified  the  conclusion  that  he  had 
violated  any  law." 

"If  a  homicide  be  committed  by  a  military 
guard  without  malice  and  in  the  performance  of 
his  supposed  duty  as  a  soldier,  such  homicide 
is  excusable  unless  it  was  manifestly  beyond  the 
scope  of  his  authority  or  was  such  that  a  man  of 
ordinary  sense  and  understanding  would  know 
that  it  was  illegal."  (U.  S.  v.  Clark,  31  Fed. 
Rep.,  710.)  [In  this  case  it  was  held  that  the 
finding  of  an  Army  court  of  inquiry  was  entitled 
to  great  weight  as  showing  that  guard  was  not  to 
blame.] 

"In  charging  the  jury  in  U.  S.  v.  Carr,  1 
Woods,  484  [25  Fed.  Cas.  No.  14732],  Mr.  Justice 
Woods  instructed  them  to  'inquire  whether  at 
the  moment  he  fired  his  piece  at  the  deceased, 
with  his  surroundings  at  that  time,  he  had 
reasonable  grounds  to  beUeve  and  did  believe 
that  the  killing  or  serious  wounding  of  the  de- 
ceased was  necessary  to  the  suppression  of  a 
mutiny  then  and  there  existing,  or  of  a  disorder 


which  threatened  speedily  to  ripen  into  a  mu- 
tiny. If  he  had  reasonable  ground  so  to  believe, 
and  did  so  beUeve,  then  the  kilUng  was  not  un- 
lawful. *  *  *  But  it  must  be  understood 
tliat  the  law  will  not  require  an  officer  charged 
with  the  order  and  discipline  of  a  camp  or  fort 
to  weigh  with  scrupulous  nicety  the  amount  of 
force  necessary  to  suppress  disorder.  The  ex- 
ercise of  a  reasonable  discretion  is  all  that  is  re- 
quired."    (U.  S.  V.  Clark,  31  Fed.  Rep.,  716.) 

"A  public  officer  is  not  liable  to  an  action  if 
he  falls  into  error  in  a  case  where  the  act  to  be 
done  is  not  merely  a  ministerial  one,  but  is  one 
in  relation  to  which  it  is  his  duty  to  exercise 
judgment  and  discretion,  even  although  an 
individual  may  suffer  by  his  mistake.  A  con- 
trary principle  would,  indeed,  be  pregnant 
with  the  greatest  mischiefs."  (Kendall  v. 
Stokes,  3  How.,  87;  see  also  Spalding  v.  Vilas, 
161  U.  S.,  483.) 

"The  defendant  having  caused  the  arrest  and 
imprisonment  of  the  plaintiff,  who  was  a  civil- 
ian and  not  amenable  to  military  law,  it  was  his 
duty  to  make  provision  against  his  being 
treated  with  undue  harshness  and  severity  or 
subjected  to  any  treatment  or  discipline  not 
necessary  and  proper  to  restrain  him  of  his 
liberty  for  the  time  being;  and  having  failed  to 
do  so  and  suffered  the  plaintiff  to  be  confined 
in  the  guardhouse  with  dnmken  soldiers  and 
to  be  compelled  to  lay  in  common  with  military 
culprits,  the  damages  for  the  false  imj^rison- 
ment  must  be  enhanced  on  account  of  such 
treatment."  (McCall  v.  McDowell,  15  Fed. 
Cas.  No.  8673.) 

"But  in  this  case  the  defendant  does  not 
stand  in  the  situation  of  an  oflScer  who  merely 
obeys  the  command  of  liis  sui)erior.  For  it 
appears  that  he  advised  the  order  and  volun- 
teered to  execute  it  when  according  to  military 
usage  that  duty  more  properly  belonged  to  an 
officer  of  inferior  grade."  (Mitchell  v.  Har- 
mony, 13  How.,  115.) 

V.  Protection  of    Military  Officers   foe 
Acts   Done  in  Performance  op   Duty. 

Congress  may  protect  oflB.cers  against 
civil  or  criminal  responsibility. — "Congress 
has  power  to  i^rotect  officers  and  persons  engaged 
or  concerned  in  making  arbitrary  arrests  and  im- 
prisonments, or  arrests  or  imprisonments  with- 
out ordinary  legal  warrant  or  cause,  under  the 
authority  or  in  pursuance  of  an  act  suspending 
the  writ  of  habeas  corpus,  by  the  passage  of  laws 
indemnifying  such  officers  and  persons  against 
the  ordinary  legal  consequences  thereof  or  de- 
claring that  they  shall  not  be  liable  to  an  action 
or  other  legal  proceeding  therefor."  (McCall 
V.  McDowell,  15  Fed.  Cas.  No.  8673.) 

"  It  is  not  for  the  court  to  say  what  protection 
or  indemnity  is  due  from  the  public  to  an  officer 
who,  in  his  zeal  for  the  honor  and  interest  of  his 
country  and  in  the  excitement  of  military 
operations,  has  trespassed  on  private  rights. 
That  question  belongs  to  the  political  depart- 
ment of  the  Government."  (Mitchell  v. 
Harmony,  13  How.,  115.) 

An  act  of  Congress  passed  during  the  Civil 
War  (Mar.  3,  1863,  12  Stat.,  756) providecl  that 
any  order  of  the  President  during  the  existing 
war  should  be  a  defense  to  any  prosecution, 


57 


Art.  I,  Sec.  8. 


rt.  1.   THE  CONSTITUTION. 


Land  and  Naval  Forces. 


civil  or  criminal,  "for  any  search,  seizure, 
arrest  or  inipriii^nment,  made,  done,  or  com- 
mitteil,or  act.s  omitted  to  l)e  done,"  niider  au- 
thority of  such  order.  ThL'^  act  was  u])held, 
the  coTirt  saying:  "That  an  act  iiassed  alter  the 
event  which  in  effect  ratifies  what  has  been  done 
and  declarers  that  no  suit  shall  be  sustained 
agiiinst  the  ]iarty  actina:  under  color  of  authority 
is  valid,  so  far  as  Congress  could  have  conferred 
sxich  authority  before,  admifcs  of  no  reixsonable 
doubt.  These  are  ordinary  acta  of  indemnity 
passed  by  all  govenmients  when  the  occasion 
requires."  (Mitchell  v.  Clark,  110  U.  S.,  633; 
see  also  O'Reilly  De  Camara  v.  Brooke,  142 
Fed.  Rep.,  858;  209  U.  S.,  45. 

Referring  to  acta  of  March  3,  1863  (12  Stat., 
756), and  March  2, 1867  (14Stat.,432),itwasheld 
by  theSuiireme  ( 'ourt  that  "  these  statutes  were 
enacted  among  other  things  to  protect  parties 
from  liability  to  ])rosecution  for  acts  done  in  the 
arrest  and  iiu])risomuent  of  jjersons  during  the 
existence  of  the  rebellion,  under  orders  or 
proclamations  of  the  President  or  by  his  au- 
thority or  a])proval,  who  were  charged  with 
partici]>ation  in  the  rebellion,  or  as  aiders  or 
abettors,  or  as  being  guilty  of  (lisloyal  ]iractices 
in  aid  thereof,  or  any  A-iolation  of  the  usages  or 
the  laws  of  war":  that  said  statutes  do  not 
"cover  all  acts  done  by  olTicers  in  the  military 
service  of  the  United  States,  simply  because 
they  are  acting  under  the  general  authority  of 
the  President  as  commander  in  chief  of  the 
armies  of  the  United  States";  that,  "assuming 
that  they  are  not  liable  to  any  constitutional 
objection,  they  only  cover  acts  done  under 
orders  or  proclamations  issued  by  the  President 
or  by  his  authority" ;  that  "  they  do  not  dispense 
with  the  exhibition  of  the  order  or  authority 
upon  which  a  party  relies";  and,  accordingly, 
that  "where  certain  military  ofTicers  of  the 
United  States,  being  sued  for  the  arrest  and 
imprisonment  of  a  person  in  Vermont,  not  con- 
nected with  the  military  ser\T.ce  of  the  United 
States,  alleged  in  their  pleas  that  the  arrest  and 
imprisonment  were  made  under  the  authority 
and  by  the  order  of  the  President,  whose  orders 
as  commander  in  chief  of  the  armies  of  the 
United  States  by  the  rules  and  regulations  of 
the  Army  they  were  bound  to  obey,  without 
setting  forth  any  order,  general  or  special,  of 
the  President  directing  or  appro\-ing  of  the  acts 
in  question,     *    *    *    the  pleas  were  defective 


and  insufTicient."  (Bean  v.  Beckwith,  18 
Wall.,  510.)  [In  the  case  of  In  re  Mur])hv,  17 
Fe<l.  Cas.  No.  9947,  it  wius  held  that  the  act  of 
March  2, 1867,  validating arrestof  citizens  by  mil- 
itary under  acts  of  ( "ongress  and  jiroclamationa 
and  orders  of  President  or  ]>y  his  authority  and 
approval,  was  void  ius  ex  post  facto.  In  Griflm 
i;.  Wilcox  (21  Ind.,  370)  theactof  March  3, 1863, 
was  held  to  violate  the  fourth  amendment.] 

"A\hen  an  officer  of  the  United  States  is  sued 
for  the  ])erformance  of  his  duty,  the  Government 
is  bound  to  ])rotect  him  by  ])aying  the  costs  of 
his  defense.  If  he  defends  himself,  and  proves 
upon  his  trial  that  he  was  executing  the  law, 
or  the  orders  of  his  siijierior,  his  expenses  ought 
to  be  reimbursed  to  him."  (9  Op.  Atty.  Gen., 
51,  case  of  Capt.  Wilkes;  compare  22  Comp. 
Dec,  264.) 

"This  is  required  by  the  plain  principles  of 
justice  as  well  as  by  sound  jiolicy.  No  man  of 
common  prudence  would  enter  the  public 
service  if  he  knew  that  the  performance  of  his 
duty  would  render  him  liable  to  be  plagued  to 
death  with  lawsuits  which  he  must  carry  on 
at  his  own  expense.  For  this  reason  it  has  been 
the  uniform  practice  of  the  Federal  Govern- 
ment, ever  since  its  foundation,  to  take  upon 
itself  the  defense  of  its  officers  who  are  sued  or 
prosecuted  for  executing  its  laws.  The  follow- 
ing are  some  of  the  cases  in  which  this  has  been 
done:  Mitchell  v.  Harmony,  13  How.,  115; 
Elliott  V.  Swartwout,  10  Pet.,  137;  Tracy  v. 
Swartwout,  10  Pet.,  80;  Lawrence  v.  Allen,  7 
How.,  785;  Same  v.  Caswell,  13  Howard,  488; 
Greely  v.  Thompson,  10  How.,  225;  King  v. 
Maxwell,  17  How.,  147;  The  United  States  v. 
Guthi-ie,  17  How.,  284;  The  United  States  v. 
Booth,  18  How.,  476;  Greely  v.Burgess,  18  How., 
413;  Stairs  v.  Peaslee,  18  How.,  521;  Gelston  v. 
Hoyt,  3  Wheat.,  247;  Fleming  v.  Page,  9  How., 
603;  Kendall  v.  The  United  States,  12  Pet.,  51 
[524];  Marbury  v.  Madison,  1  Cr.,  137.  In  Little 
V.  Barreme,  2  Cr.,  170,  the  Government  took  no 
l^art  in  the  defense,  but  it  afterwards  assumed 
the  judgment  and  paid  it  with  interest  and  all 
charges."  (9  Op.  Atty.  Gen.,  51;  see  also  12 
Comp.  Dec,  208,  and  12  Comp.  Dec,  191.) 

Civil  responsibility  for  seizure  of  private 
property  during  war. — See  note  to  Art.  I, 
sec  8,  cl.  11,  "  Jiirisdiction  over  persons  in 
mihtary  service  during  war." 


[Clause  14.  Regulation  of  land  and  naval  forces.]    ^*  To  make  Rules  for  the 

and  naval  Forces; 

sentinels;  fleets,  squadrons,  separate  vessels, 
boats,  crews,  are  land  and  naval  forces,  inte- 
grally and  independently,  no  less  than  when 
compounded  in  the  general  mass,  and  so  is  the 
individual  soldier  and  seaman."  (U.  S.  v. 
Mackenzie,  30  Fed.  Cas.  No.  18313.) 


Government  and  Regulation  of  the  land 

I.  General    Powers    of   Congress    and 
President. 
II.  Power  to  Create  Courts-Martial. 

III.  Finality  of  Court-Martial  Proceed- 

ings. 

IV.  Jurisdiction  of  Courts-Martial. 
V.  Jurisdiction  of  Civil  Courts. 

VI.  Application    op    Constitution   to   the 
Navy. 


I.  General  Powers  of  Congress  and 
President. 

Land  and  naval  forces. — "Armies,   divi- 
eione,  brigades,  regiments,  companies,  guards, 


Powers  of  Congress  and  of  the  Presi- 
dent.— "The  power  to  make  the  necessary 
laws  is  in  Congress;  the  power  to  execute  in  the 
President.  Both  powers  imply  many  subordi- 
nate and  auxiliary  powers.  Each  includes  all 
authority  essential  to  its  due  exercise.  But 
neither  can  the  President  in  war  more  than  in 
peace  intrude  upon  the  proper  authority  of  Con- 
gress, nor  Congress  upon  the  proper  authority 
of  the  President.    Both  are  servants  of  the  peo- 


58 


Land  and  Naval  Forces. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


pie  whose  will  is  expressed  in  the  fundamental 
law."     (Ex  parte  Milligan,  4  Wall.,  139.) 

"Congress  may  increase  the  Army  or  reduce 
the  Army  or  abolish  it  altogether;  but  so  long 
as  we  have  a  military  force,  Congress  can  not 
take  away  from  the  President  the  supreme  com- 
mand. It  is  true  that  the  Constitution  has  con- 
ferred upon  Congress  the  exclusive  power  'to 
make  rules  for  the  Government  and  regulation  of 
the  land  and  naval  forces;'  but  the  two  powers 
are  distinct;  neither  can  trench  upon  the  other; 
the  President  can  not  under  the  guise  of  military 
orders  evade  the  legislative  regulations  by 
which  he  in  common  with  the  Army  must  be 
governed;  and  Congi'ess  can  not  in  the  guise  of 
'rules  for  the  government'  of  the  Army  impair 
the  authority  of  the  President  as  Commander 
in  Chief."  (Swaim  v.  U.  S.,  28  Ct.  Cls.,  173, 
221;  affirmed,  165  U.  S.,  553.) 

For  other  cases  see  note  to  Article  II,  section 
2,  clause  1;  and  see  note  to  Article  II  section 
2,  clause  2,  as  to  powers  of  Congress  and  of  the 
President  with  reference  to  appointments  and 
promotions  in  the  Army  and  Navy. 

Delegation  of  power  to  make  regula- 
tions.— Congress  can  only  legislate  in  a  general 
way,  and  large  powers  are  necessarily  intrusted 
to  the  different  departments.  They  really  ex- 
ercise in  this  way  by  delegation,  and  neces- 
sarily so,  for  the  purpose  of  carrjdng  on  the  vast 
affairs  of  the  Governmentand  itsdetails,  author- 
ity which  in  a  strict  sense  pertains  to  Congress. 
(21  Op.  Atty.  Gen.,  438,  439.) 

While  of  course  Congress  can  not  constitu- 
tionally delegate  to  the  President  legislative 
powers,  "it  may,  in  conferring  powers  consti- 
tutionally exercisable  by  him,  prescribe  or 
omit  prescribing,  special  rules  of  their  admin- 
istration or  may  specially  authorize  him  to  make 
the  rules,  ^^llen  Congress  neither  prescribes 
them  nor  expressly  authorizes  him  to  make 
them,  he  has  the  authority,  inherent  in  the 
powers  conferred,  of  making  regulations  neces- 
sarily incidental  to  their  exercise."  (McCall's 
Case,_15Fed.  Cas.,  1230.) 

It  is  well  settled  that  executive  regulations 
when  directly  approved  by  Congress  have  the 
absolute  force  of  law  equally  with  other  legis- 
lative acts.  Regulations  not  approved  by  Con- 
gress have  the  force  of  law  only  when  founded 
on  the  President's  constitutional  powers  as 
Commander  in  Chief  of  the  Army  and  Navy  or 
when  consistent  with  and  supplementary  to  the 
statutes  which  have  been  enacted  by  Congress. 
(In  re  Smith,  23  Ct.  Cls.,  452,  459.) 

Congress  has  approved  regulations  issued  bv 
the  Secretary  of  the  Navy  with  the  approval  of 
the  President  and  authorized  him  to  make 
changes  therein  in  the  same  manner.  (Sec. 
1547,  R.  S.)  The  Navy  Regulations  so  issued 
by  the  Secretary  of  the  Na\^  have  the  force 
and  effect  of  positive  law.  (27  Op.  Atty.  Gen., 
257;  Ex  parte  Reed,  100  U.  S.,  13;  Smith  v. 
Whitney,  116  U.  S.,  180.) 

For  citation  of  decisions  on  subject  of  ex- 
ecutive regulations,  see  note  to  sections  161 
and  1547,  Revised  Statutes;  see  also  Article  II, 
section  2,  clause  1. 

Power  of  President  to  change  estab- 
lished customs. — A  custom  which  "has  come 


down  to  us  from  the  British  Navy  and  which 
has  been  expressed  in  regulations  sanctioned  by 
Congress,  has  thus  become,  in  effect,  a  national 
policy;  it  is  believed  that  a  change  therein 
would  involve  matters  more  properly  a  subject 
for  the  exercise  of  the  constitutional  powers 
vested  in  Congress  '  to  provide  and  maintain  a 
Navy '  and  '  to  make  rules  for  the  government 
and  regulation  of  the  land  and  naval  forces.' 
In  other  words,  the  regulation  in  this  case  did 
not  prescribe  the  rule,  but  was  merely  declara- 
tory of  the  preexisting  rule  based  on  established 
custom .  Under  such  circumstances  an  amend- 
ment of  the  regulation  would  involve  something 
more  than  occurs  in  the  ordinary  case ;  that  is 
to  say,  it  would  involve  not  merely  the  change 
of  a  regulation  but  a  radical  change  in  pre\'iou3 
custom  which  Congress  has  indicated  should  be 
continued.  That  the  President's  power  to 
make  such  changes  is  not  without  limitation  is 
supported  by  the  Attorney  General's  opinion 
holding  that  the  President  was  without  author- 
ity to  make  radical  changes  in  regulations  pre- 
scribing in  accordance  with  custom  the  duties 
to  be  performed  by  staff  officers  of  the  Marine 
Corps.  (30 Op.  Atty.  Gen.,  234.)"  (File3973- 
107,  Feb.  16,  1915.) 

II.  Power  to  Create  Courts-Martial. 

Trials  by  jury  not  required  in  the  Navy. — 
Among  the  powers  conferred  upon  Congress  by 
the  eighth  section  of  the  first  article  of  the  Con- 
stitution are  the  following:  "To  provide  and 
maintain  a  Navy; "  "to  make  rules  for  the  gov- 
ernment and  regulation  of  the  land  and  naval 
forces; "  and  the  fifth  amendment,  which  re- 
qmres  a  presentment  of  a  grand  jury  in  cases  of 
capital  or  otherwise  infamous  crimes  expressly 
excepts  from  its  operation  ' '  cases  arising  in  the 
land  or  naval  forces; "  and  by  the  second  section 
of  the  second  article  of  the  Constitution  it  is 
declared  that  "the  President  shall  be  Com- 
mander in  Chief  of  the  Army  and  Navy  of  the 
United  States  and  of  the  militia  of  the  several 
States  when  called  into  the  actual  service  of  the 
United  States." — "These  provisions  show  that 
Congress  has  the  power  to  provide  for  the  trial 
and  punishment  of  military  and  naval  offenses 
in  the  manner  then  and  now  practiced  by  civil- 
ized nations  and  that  the  power  to  do  so  is 
given  without  any  connection  between  it  and 
the  third  article  of  the  Constitution  defining  the 
j  udicial  power  of  the  United  States ;  indeed  that 
the  two  powers  are  entirely  independent  of 
each  other."  (Dynes  v.  Hoover,  20  How.,  65; 
see  also  U.  S.  v.  Mackenzie,  30  Fed.  Cas.  No. 
18313;  Ex  parte  Henderson,  11  Fed.  Cas.  No. 
6349;  Ex  parte  Dickey,  204  Fed.  Rep.,  322.) 
* '  Under  these  powers  it  has  always  been  sup- 
posed that  Congress  may  provide  for  the  trial 
by  court-martial  of  persons  in  the  land  or  naval 
forces,  or  in  the  militia  in  ser\dce,  for  military 
offenses.  This  is  the  usual  mode  of  trial  for 
these  offenses  which  had  prevailed  in  England, 
the  country  from  which  we  borrowed  most  of 
our  laws,  for  more  than  a  hundred  years  prior 
to  the  adoption  of  our  Constitution,  and,  in 
fact,  ever  since  England  has  had  any  standing 
i   army  at  all     It  is  also  the  mode  which  pre- 


54641°— 22 5 


59 


Art.  I,  Sec.  8. 


PL  1.   THE  CONSTITUTION. 


Land  and  Naval  Forces. 


vailed  in  the  colonies  at  the  time  the  Conven- 
tion sat,  and  it  has  been  a  part  of  onr  code  of 
laws  relatino;  to  the  governni(nit  of  the  land  and 
naval  forces  and  of  the  militia  in  service  ever 
since  we  luid  a  (.io\-crnment .  Tliis  mode  of  trial 
of  military  men  for  nulitar\-  offenses  has  become 
too  well  fixed  in  onr  system  to  now  admit  of 
question."     (Expartellenderson,  11  Fed.  Cas. 

No.  6349.) 

"The  sixth  amendment  affirms  that  'in  all 
criminal  prosecutions  the  acc-used  shall  enjoy 
the  ritrht  to  a  speedy  and  pu])lic  trial  by  an 
impartial  jury,'  language  broad  enough  to  em- 
brace all  persons  and  cases;  but  the  fifth,  recog- 
nizing the  necessity  of  an  indictment  or  pre- 
sentment before  anyone  can  be  held  to  answer 
for  high  crimes,  excepts  'cases arising  in  the  land 
or  naval  forces  or  in  the  militia  when  in  actual 
service  in  time  of  war  or  pul)lic  danger;'  and 
the  framers  of  the  Constitution  doubtless  meant 
to  limit  the  right  of  trial  by  jury  in  the  sixth 
amendment  to" those  persons  who  were  subject 
to  indictment  or  presentment  in  the  fifth .    i'he 
discipline  necessary  to  the  efficiency  of  the 
Army  and  Navy  required  other  and  swifter 
modes  of  trial  than  are  furnished  by  the  com- 
mon-law courts;  and  in  pursuance  of  the  power 
conferred  by  the  Constitution  Congress  has  de- 
clared the  kinds  of  trial  and  the  manner  in 
which  they  shall  be  conducted  for  offenses  com- 
mitted while  the  party  is  in  the  military  or 
naval  service.     Every  one  connected  with  these 
branches  of  the  public  service  is  amenable  to 
the  jurisdiction  which  Congress  has  created  for 
their  government,  and  while  thus  serving  sur- 
renders his  right  to  be  tried  by  the  civil  courts." 
(Ex  parte  Milligan,  4  Wall.,  3,  123.) 

"It  is  not  denied  that  the  power  to  make 
rules  for  the  government  of  the  Army  arid  Navy- 
is  a  power  to  provide  for  trial  and  punishment 
by  military  courts  without  a  jury.  It  has  been 
so  imderstood  and  exercised  from  the  adoption 
of  the  Constitution  to  the  present  time. "  (Ex 
parte  ]\Iilligan,4  Wall.,  137,  concurring  opinion 
of  four  justices.) 

In  the  exercise  of  this  power  Congress  has 
enacted  rules  for  the  regulation  of  the  Army, 
known  as  the  Articles  of  War  (sec.  1342,  R.  S.), 
and  for  the  Navy,  known  as  the  Articles  for  the 
Government  of  the  Na\'y  (sec.  1624,  R.  S.). 
Every  officer  before  he  enters  on  the  duties  of 
his  office  subscribes  to  these  articles  and  places 
himself  within  the  power  of  courts-martial  to 
pass  on  any  offense  which  he  may  have  com- 
mitted in  contravention  of  them.  (Carters. 
McClaughry,  183  U.  S.,  365.) 

"The  notion  suggested  by  Sir  Matthew  Hale 
and  repeated  by  Sir  William  Blackstone(Com., 
vol.  1,  p.  213)  that  'martial  [military]  law  is 
built  on  no  settled  principles  but  is  entirely 
arbitrary  in  its  decisions  and  is  in  truth  not  law 
but  something  indulged  rather  than  allowed  by 
law '  is  an  exploded  absurdity.  A  court-martial 
is  a  lawful  tribunal,  existing  iDy  the  same  author- 
ity that  any  other  court  exists  by,  and  the  law 
military  a  branch  of  the  law  as  valid  as  any 
other^  and  it  differs  from  the  general  law  of  the 
land  m  authority  only  in  this  that  it  applies  to 
officers  and  soldiers  of  the  Army,  but  not  to 
other  members  of  the  body  politic,  and  that  it 


islimited  to  breaches  of  military  duty.  *  *  * 
There  is  the  less  room  for  the  sujx'rficial  remark 
of  Sir  Matthew  Hale  to  be  applied  in  tlie  United 
States,  inasmuch  as  the  Constitution  expressly 
empowers  Congress  'to  make  (special)  rules  for 
the  government  of  the  land  and  naval  forces' 
and  expressly  excepts  the  trial  of  cases  arising 
in  the  land  or  naval  service  from  the  ordinary 
provisions  of  law.  "     (6  Op.  Atty.  Gen.,  413.) 

III.  Finality    of  Court-Martial   Proceed- 
ings. 

Judgments  of  courts-martial  acting 
witliin  their  jurisdiction  not  open  to  re- 
view by  civil  courts.— Courts-martial  are  law- 
ful tribunals  with  autJiority  to  finally  deter- 
mine any  case  over  which  they  have  jurisdic- 
tion, and  their  proceedings  when  confirmed  as 
provided  are  not  open  to  review  by  the  civil 
tribunals  except  for  the  purpose  of  ascertaining 
whether  the  military  or  naval  court  had  juris- 
diction of  the  person  and  subject  matter  and 
whether,  though  having  such  jurisdiction,  it 
had  exceeded  its  powers  in  the  sentence  pro- 
nounced. (Carter  v.  McClaughry,  183  U.  S., 
365;seealsoGrafton^.U.S.,206U.S.,,333,348.) 

' '  With  the  sentences  of  courts-martial  wliicli 
have  been  convened  regularly  and  have  pro- 
ceeded legally  and  by  which  punishments  are 
directed  not  forbidden  by  law  or  which  are 
according  to  the  laws  and  customs  of  the  eea, 
civil  courts  have  nothing  to  do  nor  are  they  in 
any  way  alterable  by  them."  (Dynes  v. 
Hoover,  20  How.,  65.) 

"Within  the  sphere  of  their  jurisdiction  the 
judgments  and  sentences  of  courts-martial  are 
as  final  and  conclusive  as  those  of  civil  tribunals 
of  last  resort,  and  the  only  authority  of  civil 
courts  is  to  inquire  whether  the  military  au- 
thorities are  proceeding  regularly  within  their 
jurisdiction.  If  they  are,  they  can  not  be  inter- 
fered with  no  matter  what  errors  may  be  com- 
mitted in  the  exercise  of  their  lawful  jurisdic- 
tion. "     (In  re  McVey,  23  Fed.  Rep.,  878.) 

"Undoubtedly  errors  are  committed  by 
courts-martial  which  a  civil  tribunal  would 
regard  as  sufficient  ground  for  a  reversal  of  their 
judgments  if  it  were  sitting  as  an  appellate 
court.  But  there  is  always  this  radical  differ- 
ence between  an  appellate  court  sitting  for  the 
correction  of  errors  and  a  civil  court  into  which 
the  record  of  a  court-martial  is  collateral — in  the 
former  there  is  not  a  failure  of  justice;  the  ap- 
pellate court  may  reverse  a  judgment  or  pre- 
scribe another  or  award  a  new  trial ;  in  the  latter 
the  court  must  either  give  full  effect  to  the  sen- 
tence or  pronounce  it  wholly  void. "  (Swaim 
V.  U.  S.,  28  Ct.  Cls.,  217;  affiimed,  165  U.  S., 
553.) 

An  officer  of  the  Army  attacked  the  sentence 
of  a  court-martial  on  the  ground,  among  other 
things,  that  it  was  void  because  in  violation  of 
the  fifth  amendment,  declaring  that  no  person 
shall  be  subject  for  the  same  offense  to  be  twice 
put  in  j  eopardy  of  life  or  limb .  On  behalf  of  the 
Government  it  was  argued  that  the  question 
was  one  within  the  power  of  the  court-martial 
to  decide,  and  must  be  held  to  have  been 
waived  or  be  assumed   to  have  been  ruled 


60 


Land  and  Naval  Forces.         Pt.  1.  THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


against  the  accused,  in  which  case  the  decision 
would  be  conclusive  on  habeas  corpus,  since  if 
incorrect  it  would  be  merely  error  and  would 
not  go  to  the  jurisdiction.  It  had  been  held  by 
the  Supreme  Court  that  the  courts  of  the  Dis- 
trict of  Columbia  had  jiirisdiction  to  decide  a 
similar  question  in  cases  tried  by  them,  and  that 
their  decision  would  not  be  reviewed  in  that 
particular  on  habeas  corpus.  "It  is  difficult  to 
see  why  the  sentences  of  courts-martial,  courts 
authorized  by  law  in  the  enforcement  of  a  sys- 
tem of  government  for  a  separate  community 
recognized  by  the  Constitution,  are  not  witlrin 
this  rule.  Its  applicability  would  seem  to  be 
essential  to  the  maintenance  of  that  discipline 
which  renders  the  Army  efficient  in  war  and 
morally  progressive  in  peace  and  which  is 
secured  by  the  military  code  and  the  decisions 
of  the  military  courts. ' '  (Carter  v.  McClaughry, 
183  U.  S.,  365.) 

Although  error  was  committed  by  a  naval 
court-martial  in  permitting  the  judge  advocate 
to  be  present  for  a  short  time  during  a  closed  ses- 
sion of  the  court,  this  was  an  error  of  procedure 
only,  and  could  not  be  corrected  by  a  civil 
court  in  habeas  coi-pus  proceedings.  "It  is 
clear  that  the  civil  courts  are  in  no  sense  appel- 
late tribimals  for  the  revision  of  proceedings  in 
courts-martial.  It  has  been  decided  that  in 
such  cases  the  civil  courts  should  not  interfere 
if  it  appears  that  the  court-martial  had  jurisdic- 
tion of  the  person  and  of  the  subject  matter 
which  was  tried  before  it  and  that  errors  in  pro- 
cedure in  military  courts  can  be  corrected  only 
by  the  proper  mi litary  authorities.  "  (Ex  parte 
Tucker,  212  Fed.  Rep.,  569.) 

"We  must  not  be  understood  by  anything  we 
have  said  as  intending  in  the  slightest  degree  to 
impair  the  salutaiy  rule  that  the  sentences  of 
courts-martial  when  affirmed  by  the  military 
tribunal  of  last  resort  can  not  be  revised  by  the 
civil  courts  save  only  when  void  because  of  an 
absolute  want  of  power  and  not  merely  voidable 
because  of  defective  exercise  of  power  pos- 
sessed." (Carter  v.  McClaughry,  183  U.  S., 
365;  see  also  Dynes  v.  Hoover,  20  How.,  65,  82; 
Keyes  v.  U.  S.,  109  U.  S.,  336;  Swaim  v.  U.  S., 
165  U.  S.,  553;  Smith  v.  Whitney,  116  U.  S., 
167.) 

_  "The  court-martial  for  the  trial  of  Capt.  Ober- 
lin  M.  Carter  was  convened  by  orders  issued  by 
the  President;  and  he  was  therefore  the  review- 
ing authority  and  the  court  of  last  resort." 
(Carters.  McClaughry,  183  U.  S.,  365,  385.) 

"WTiere  a  court-martial  had  jurisdiction  to 
try  i)etitioner  for  an  offense  against  the  naval 
regulations  and  to  impose  sentence  authorized 
thereby,  a  civil  court  in  habeas  corpus  proceed- 
ing could  only  review  the  question  of  jurisdic- 
tion and  could  not  pass  on  alleged  errors  of  law 
committed  by  the  court-martial  or  on  the 
severity  of  the  sentence  imposed. "  (Ex  parte 
Dickey,  204  Fed.  Rep.,  322.) 

"The  case  before  me  shows  that  the  court- 
martial  under  which  the  petitioner  was  tried 
was  properly  constituted;  that  the  charge  and 
specification  were  in  due  form  and  authorized 
under  the  regulations  for  the  government  of  the 
Navy;  that  the  trial  court  had  jurisdiction  of 
the  case  and  of  the  subject  matter  of  the  charge 
and  acted  within  the  scope  of  its  lawful  author- 


ity; that  it  also  acted  within  its  authority  in 
imposing  sentence ;  that  such  sentence  was  duly 
approved  by  the  commander  in  chief  of  the 
Atlantic  Fleet,  by  whom  the  court  was  con- 
vened; that  it  was  also  approved  by  the  Secre- 
tary of  the  Navy,  the  final  reviewing  authority 
provided  by  law  to  act  upon  records  of  courts- 
martial  in  cases  which  do  not  extend  to  the  loss 
of  life  or  to  the  dismissal  of  a  commissioned  or 
warrant  officer;  that  the  sentence,  therefore, 
can  not  be  revised  by  the  civil  courts.  *  *  * 
If  the  petitioner  was  harshly  dealt  with  and  a 
sentence  of  undue  severity  was  imposed,  such 
sentence  seems  to  have  been  within  the  powers 
of  the  court-martial,  and  it  is  held  by  the 
Supreme  Court  of  the  United  States  that  the 
remedy  must  be  found  elsewhere  than  in  courts 
of  law.'"    (Ex  parte  Dickey,  204  Fed.  Rep. ,  322.) 

WTiat  is  conduct  unbecoming  an  officer  and  a 
gentleman,  or  conduct  to  the  prejudice  of  good 
order  and  discipline,  is  a  question  exclusively 
within  the  jurisdiction  of  a  court-martial  to 
determine,  and  its  decision  is  not  subject  to 
review  by  a  civil  court.  (Carter  v.  McClaughry, 
183  U.  S.,  400;  Swaim  v.  U.  S.,  165  U.  S.,  553; 
Smith  V.  WTiitney,  116  U.  S.,  178;  Fletcher  v. 
U.  S.,  26  Ct.  Cls.,  562.  563,  reversed,  on  other 
grounds,  148  U.  S.,  84.) 

Neither  the  Supreme  Court  of  the  District  of 
Columbia  nor  the  Supreme  Court  of  the  United 
States  has  any  appellate  jurisdiction  over  a 
naval  court-martial  nor  over  offenses  which 
such  a  court  has  power  to  try.  Neither  of  these 
courts  is  authorized  to  intertere  with  the  court- 
martial  in  the  pert'ormance  of  its  duty,  by  way 
of  writ  of  prohibition  or  any  order  of  that  nature. 
(Wales  V.  Whitney,  114  tl.  S.,  564,  570;  com- 
pare State  V.  Peake,  40  L.  R.  A.  (N.  S.),  354.) 

Whether  the  Supreme  Court  of  the  District  of 
Columbia  has  power  to  issue  a  writ  of  prohibi- 
tion to  a  court-martial — quaere.  (Smith  v. 
Whitney,  116  U.  S.,  168.) 

"Where  an  officer  of  the  Army  during  the  War 
with  Spain,  after  ha\dng  been  acquitted  by  a 
court-martial  of  charges  preferred  against  him, 
was,  by  direction  of  the  commanding  generals 
retried  by  the  court-martial  on  the  same  charge, 
and  was  convicted  and  dismissed  from  the  serv- 
ice, and  thereafter  peace  having  been  declared, 
and  its  term  of  enlistment  ha^•ing  expired,  his 
regiment  was  mustered  out  and  discharged,  it 
was  held  that  mandamus  would  not  He  on  his  re- 
lation against  the  Secretary  of  War  to  compel  the 
respondent  to  cause  the  relator  to  be  mustered  out 
and  discharged. "  (Brown  t'.  Root,18  App.  D.C., 
239.)  [In  this  case  there  was  not  a  second  trial, 
but  a  re\ision  by  the  court  of  its  finding,  by  order 
of  the  convening  authority.]  "The  United 
States  Court  of  Claims  would  probably  have  juris- 
diction of  an  action  by  the  relator  to  establish 
the  validity  of  liis  claim  to  salary  accruing 
after  the  date  of  his  dismissal. "     (Same  case.) 

"When  the  offense  charged  is  trivial  and  the 
punishment  is  likewise  trivial,  a  civil  court 
should  not  be  called  upon  to  examine  the  legal- 
ity of  the  sentence  of  a  court-martial;  and  when 
called  upon  is  not  required  by  substantial  jus- 
tice to  apply  a  stricter  rule  than  that  which 
I^revails  in  ordinary  criminal  cases. "  (Weir- 
man  V.  U.  S.,  36  Ct.  Cls.,  236,  239.) 


61 


Art.  I,  Sec.  8. 


Pt.  1.   THE  CONSTITUTION. 


Land  and  Naval  Forces. 


IV.  Jurisdiction  ok  Couhts-Maktial. 

Persons  subject  to  jurisdiction  of  Federal 
courts-martial. — Everyone  connected  with 
the  military  and  naval  service  is  amenable 
to  the  jurisdiction  which  Congi-ess  has  created 
for  their  government,  and  while  thus  serving 
surrenders  his  right  to  be  tried  by  the  civil 
courts.  (Ex  parte  Milliffiin,  4  Wall.,  3,  123. 
See  notes  to  sec.  1G24,  K.  S.)  The  jurisdic- 
tion of  courts-martial  includes: 

Retired  oncers.— (Runkle  v.  U.  S.,  19  Ct.  Cls., 
396;  122  U.  S.,  543;  Closson  v.  U.  S.,  7  App. 
(D  C).  460;  sees.  1256  and  1457,  R.  S.;  Naval 
Dig.,  1916,  539.) 

Chiefs  of  bureaus  in  the  Navy  Department. — 
(18  Op  Attv.  Gen.,  176;  see  also  Smith  v.  U.  S., 
26  Ct.  Cls.,"  143;  Smith  r.  Whitney,  1J6  U.  S., 
181;  Wales  v.  Whitney,  114  U.  S.,  564.) 

Judge  Advocate  General  of  the  Army  .—{SwAim 
V.  U.  S.,  28  Ct.  Cls.,  173;  165  U.  S.,  553.) 

Clerks  to  paymasters  in  the  Navy,  although 
neither  oflicers  (in  a  constitutional  sense)  nor 
enlisted  men.  (Ex  parte  Reed,  100  U.  S., 
13;  Johnson  v.  Savre,  158  U.  S.,  109;  U.  S.,  v. 
Bogart,  24  Fed.  Cas.  No.  14616;  In  re  Reed, 
20  Fed.  Cas.  No.  11636;  In  re  Bogart,  3  Fed. 
Cas.  No.  1596.  But  see  Ex  parte  Van  Vranken, 
47  Fed.  Rep.,  888,  reversed,  163  U.  S.,  694.) 
[Paymasters'  clerks  were  not  strictly  officers 
of  the  Na\y  at  the  time  these  decisions  were 
rendered  (U.  S.  v.  Mouat,  124  U.  S.,  303). 
Their  status  has  since  been  changed  and  they 
are  now  officers  of  the  Navy.  (Naval  appro- 
priation act  Mar.  3,  1915,  38  Stat.,  942;  27 
Op  Atty.  Gen.,  157;  see  also  U.  S.  v.  Hendee, 
124  U.  S.,  309.)] 

Army  contractors,  under  a  specific  statutory 
pro\'ision  subjecting  them  to  jiu-isdiction  of 
courts-martial  (Holmes  v.  Sheridan,  12  Fed. 
Cas.  No.  6644);  but  only  for  fraud  or  willful 
neglect  of  duty  in  connection  with  their  con- 
tracts (Ex  parte  Henderson,  11  Fed.  Cas. 
No.  6349). 

Naval  Militiamen,  when  employed  in  the 
service  of  the  United  States  in  time  of  war  or 
public  danger  (File  3973-107,  Feb.  16,  1915; 
Johnson  v.  Sayre,  158  U.  S.,  109,  114);  or  for 
refusing  to  obey  the  order  of  the  President 
calling  them  forth  into  the  ser\dce  of  the 
United  States  (Martini).  Mott,  12  Wheat.,  19; 
Houston  V.  Moore,  5  Wheat.,  1;  naval  militia 
act,  Feb.  16,  1914,  sec.  5,  38  Stat.,  285). 

Civilians. — As  to  trials  of  civilians  by  mili- 
tary courts  in  time  of  war,  see  note  to  Art.  I, 
sec.  8,  clause  11,  "Military  jurisdiction  over 
civilians  in  time  of  war." 

Persons  lawfully  called,  drafted  or  ordered 
into,  or  to  duty  or  for  training  in,  the  military 
service  are  subject  to  jurisdiction  of  Army 
courts-martial  from  the  dates  they  are  required 
by  the  terms  of  the  call,  draft,  or  order  to 
obey  same;  all  retainers  to  the  camp  and  all  per- 
sons accompanying  or  serving  with  the  armies 
of  the  United  States  without  the  territorial 
jurisdiction  of  the  United  States,  and  in  time 
of  war  all  such  retainers  and  persons  accom- 
panying or  serving  with  the  armies  of  the 
United  States  in  the  field  both  within  and 
without  the  territorial  jurisdiction  of  the 
United  States;  all  persons  admitted  into  the 
Regular  Army  Soldiers'  Home  at  Washington, 


D.  C;  all  persons  under  sentence  adjudged  by 
courts-martial.  (Act  Aug.  29,  1916,  sec.  3,  39 
Stat.,  650,  amending  sec.  1342,  R.  S.,  art.  2; 
see  Ex  parte  (ierlach,  247  Fed.  Rep.,  616.) 

All  person.s  who  in  lime  of  war,  or  of  rebel- 
lion against  the  United  States,  are  found  in  the 
capacity  of  spies,  etc.  (Sec.  1624,  R  .S.,  art.  5.) 
l)e  facto  emisted  man. —'Where  a  man  without 
enlisting  in  the  Navy  served  the  full  term  of 
enlistment,  he  is  entitled  to  an  honorable  dis- 
charge and  on  reenlistment  to  the  benefits 
of  his  de  facto  enlistment.  (File  5839,  July  5, 
1904;  see  also  26  Op.  Atty.  Gen.,  319;  Circular 
War  Department,  Mar.  18,  1901.) 

A  fraudulent  enlistment  is  still  an  enlistment, 
and  a  man  so  enlisting  is  de  facto  in  the  service 
and  subject  to  the  jurisdiction  of  a  naval  court- 
martial.  (File  5624,  Feb.  17,  1896;  U.  S.  v. 
Reaves,  126  Fed.  Rep.,  127,  file  152-04;  Ex 
parte  Rock,  171  Fed.  Rep.,  240;  Dillingham  v. 
Booker,  163  Fed.  Rep.,  696,  file  5956-6;  In  re 
Scott  144  Fed.  Rep.,  79,  file  2757-4;  In  re  Les- 
sard,  134  Fed.  Rep. ,  305;  Solomon  v.  Davenport, 
87  Fed.  Rep.,  318;  In  re  Morrissey,  137  U.  S., 
157;  compare  Ex  parte  Bakley,  148  Fed.  Rep., 
56,  affirmed,  Dillingham  v.  Bakley,  152  Fed. 
Rep.,  1022,  file  5506-5,  and  Ex  parte  Lisk,  145 
Fed.  Rep.,  860,  file  2757-8.)] 

"It  seems  to  me  illogical  to  say  that  a  man 
can  commit  a  crime  and  when  arrested  obtain 
a  discharge  on  the  ground  that  the  original  en- 
listment was  not  regular  or  proper."  (In  re 
Hamilton  and  Carroll,  Superior  Court,  Fulton 
Co.  (Ga.)  Atlanta  Circuit,  file  7969and  7988-04; 
see  also.  In  re  McVey,  23  Fed.  Rep.,  878.) 

Soldier  ivhose  enlistment  has  expired. — "The 
proceedings  against  the  prisoner  having  been 
instituted  while  he  was  clearly  within  the 
jurisdiction  of  the  military  authorities,  by  the 
preferring  of  charges  and  by  his  arrest  as  well 
as  by  the  forwarding  of  the  charges  to  head- 
quarters with  an  application  for  the  appoint- 
ment of  a  coiurt-martial  for  his  trial,  the  question 
for  determination  is,  Did  that  jurisdiction  cease 
and  expire  at  the  end  of  the  prisoner's  term 
of  enlistment  so  that  all  proceedings  after  that 
date  were  void?  The  general  rule  is  that  when 
the  jurisdiction  of  a  com-t  attaches  in  a  par- 
ticular case  by  the  commencement  of  pro- 
ceedings and  the  arrest  of  the  accused,  it  will 
continue  for  all  the  purposes  of  trial,  judgment, 
and  execution.  *  *  *  The  general  rule  is 
grounded  in  sound  reason.  Many  of  the 
greatest  military  offenses  are  not  cognizable  by 
the  courts  of  common  law.  A  soldier  might  be 
guilty  on  the  eve  of  the  expiration  of  his  term 
of  enlistment  of  the  grossest  insults  to  his 
officers  or  of  disobedience  of  orders  or  of  deser- 
tion in  the  face  of  an  enemy;  and  if  he  could 
not  be  held  for  trial  after  the  end  of  his  term 
he  would  escape  punishment  altogether. 
To  hold  that  in  every  such  case  the  jinisdiction 
of  a  court-martial  would  cease  with  the  expira- 
tion of  the  term  of  enlistment  would  be  to  shield 
the  guilty  from  punishment,  to  encourage  crime, 
and  to  greatly  demoralize  the  military  service. 
The  jinisdiction,  therefore,  in  such  cases  is  to 
be  maintained  upon  the  highest  considerations 
of  public  policy.  But  such  considerations  are 
not  alone  sufficient  to  support  the  jmisdiction 
of  a  court  which  has  power  to  deal  with  Ufe, 
liberty,  and  property.     The  jurisdiction  of  a 


62 


Land  and  Naval  Forces. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


criminal  court  must  rest  upon  sound  principles 
of  law  and  not  merely  upon  considerations  of 
public  interest  and  convenience.  It  fre- 
quently happens  that  the  guilty  go  acquit 
because  there  is  no  lawful  mode  of  trial  and 
punishment  provided.  The  jurisdiction  in 
the  cases  named  and  in  many  others  of  like 
character  must  therefore  be  upheld  upon  the 
ground  first  mentioned,  to- wit,  that  the  covut- 
martial  acquired  it  by  the  proper  commence- 
ment of  proceedings  and  could  not  be  divested 
of  it  by  any  subsequent  change  in  the  status 
of  the  accused;  and  this  reason  applies  as  well 
to  a  case  where  the  crime  is  one  known  to  the 
common  or  statute  law,  as  to  one  in  which  the 
offense  is  pm^ely  military."  (Barrett  v.  Hop- 
kins, 7  Fed.  Rep.,  312;  see  also,  In  re  Bogart, 
3  Fed.  Gas.  No.  1596;  In  re  Bii'd,  3  Fed.  Cas. 
No.  1428;  file  26251-5447,  Dec.  8,  1911;  9  comp. 
Dec,  229.) 

If  before  the  expiration  of  his  term  of  service 
an  enlisted  man  commits  a  military  crime,  for 
the  purpose  of  trying  such  offense  an  arrest  or 
restraint  would  be  justifiable.  (U.  S.  v.  Tra- 
vers,  28  Fed.  Cas.  No.  16537,  Mr.  Justice 
Story.) 

The  statute  of  limitations  applicable  to  trials 
by  court-martial  for  desertion  from  the  Navy 
provides,  ' '  That  said  limitation  shall  not  begin 
until  the  end  of  the  term  for  which  said  person 
wasenHstedin  theservice."  (Art.  62,  A.  Q.  N., 
sec.  1624,  R.  S.,  as  amended  by  act  Feb.  25, 
1895,  28  Stat.,  680.) 

The  statute  authorizing  detention  of  en- 
listed men  in  the  Navy  under  certain  circum- 
stances beyond  the  expiration  of  the  term  for 
wliich  they  were  enlisted  provides  "that  all 
persons  sent  home  or  detained  by  a  command- 
ing officer,  according  to  the  provisions  of  this 
act,  shall  he  subject  in  all  respects  to  the  laws 
and  regulations  for  the  government  of  the 
Navy  until  their  return  to  an  Atlantic  or 
Pacific  port  and  then-  regular  discharge." 
Sec.  1422,  R.  S.,  as  amended  by  act  Mar.  3, 
1875,  18  Stat.,  484.) 

Officer  dismissed  from  Army. — Where  an  ac- 
cused is  proceeded  against  as  an  officer  of  the 
Army  or  Navy  and  jurisdiction  attaches  in 
respect  of  him  as  such,  this  includes  not  only 
the  power  to  hear  and  determine  the  case,  but 
the  power  to  execute  and  enforce  the  sentence 
of  the  law.  Having  been  sentenced,  his  status 
was  that  of  a  person  held  by  authority  of  the 
United  States  as  an  offender  against  its  laws, 
although  pursuant  to  the  sentence  he  had  oeen 
dismissed  before  entering  upon  the  period  of 
imprisonment  adjudged.  The  principle  that 
where  jurisdiction  has  attached,  it  can  not  be 
divested  by  mere  subsequent  change  of  status 
has  been  applied  as  justifying  the  trial  and 
sentence  of  an  enlisted  man  after  expiration  of 
the  term  of  enlistment  and  the  execution  of 
sentence  after  many  years  and  the  severance 
of  all  connsction  with  the  Army.  (Carter  v. 
McClaughry,  183  U.  S.,  365,  citing  Barrett  v. 
Hopjiins,  7  Fed.  Rep.,  312,  Coleman  v.  Ten- 
nessee, 97  U.  S.,  509;  16  Op.  Atty.  Gen.,  349; 
and  Ex  parte  Mason,  105  U.  S.,  696;  see  also 
Rose  V.  Roberts,  99  Fed.  Rep.,  948.) 

Soldier  discharged  from  the  Army.- — "Soldiers 
sentenced  by  court-martial  to  dishonorable 
discharge   and    confinement   shall,    until    dis- 


charged from  such  confinement,  remain  sub- 
ject to  the  Articles  of  War  and  other  laws  re- 
lating to  the  administration  of  military  justice. " 
(Act  June  18,  1898,  sec.  5,  30  Stat.,  484;  In  re 
Bird,  3  Fed.  Cas.  No.  1428;  In  re  Craig,  70 
Fed.  Rep.,  969;  Ex  parte  Wildman,  29  P^ed. 
Cas.  No.  17653a;  Carter  v.  McClaughry,  183  U. 
S.,  365;  see  also  act  Aug.  29,  1916,  noted 
above,  under  "Civilians.") 

Persons  discharged  from  the  Navy. — "And  if 
any  person,  being  guilty  of  any  of  the  offenses 
described  in  this  article  while  in  the  naval 
service,  receives  his  discharge,  or  is  dismissed 
from  the  service,  he  shall  contini.e  to  be  liable 
to  be  arrested  and  held  for  trial  and  sentence 
by  a  court-martial  in  the  same  manner  and  to 
the  same  extent  as  if  he  had  not  received  such 
discharge  nor  been  dismissed."  (Art.  14, 
Articles  for  the  Government  of  the  Navy,  sec. 
1624,  R.  S.;  In  re  Bogart,  3  Fed.  Cas.  No.  1596; 
see  also  In  re  Bird,  3  Fed.  Cas.  No.  1428,  noted 
under  sec.  1426,  R.  S.,  "Effect  of  discharge," 
and  see  file  28550-951:3,  May  13,  1919;  U.  S. 
ex  rel.  Viscardi  v.  MacDonald,  265  Fed.  Rep., 
695;  U.  S.  ex  rel.  Sartartonio  v.  Warden  of 
Naval  Piison,  265  Fed.  Rep.,  787;  31  Op.  Attv. 
Gen.,  521.) 

Persons  in  constructive  custody  of  civil  courts.— 
Where  an  officer  of  the  Army  is  arrested  by  the 
civil  authorities  on  the  charge  of  felony  and  re- 
leased on  bail, he  is  amenable  to  the  military  au- 
thorities and  may  be  tried  by  them  for  the  mili- 
tary offense  involved.  However,  "Although 
not  necessary  in  the  actual  case,  yet  in  deference 
to  the  spirit  of  our  institutions  and  to  the  civil 
authorities,  it  may  be  expedient  for  the  mili- 
tary authorities  to  suspend  the  trial  of  the 
military  relations  of  the  act  of  killing  *  *  * 
until  the  civil  relations  of  that  act  shall  have 
been  tried  by  the  civil  magistrate."  (6  Op. 
Atty.  Gen.,  413;  see  also  21  Op.  Atty.  Gen.  504.) 

The  fact  that  an  enlisted  man  convicted  by 
a  civil  court  was  turned  over  to  naval  jurisdic- 
tion, sentence  being  suspended,  is  deemed 
sufficient  authority  to  proceed  with  his  trial  by 
general  court-martial  for  unauthorized  absence. 
(File  26524-36,  Jan.  15,  1912.) 

The  naval  authorities  have  jurisdiction  to 
try  by  court-martial  and  confine  an  enlisted 
man  paroled  by  the  civil  authorities  where  the 
governor  of  the  State  consents  to  such  man's 
delivery  to  the  Navy  for  disciplinary  action. 
(File  26524-44.) 

An  enlisted  man  tried  by  court-martial  while 
on  parole  by  civil  authorities  can  not  obtain 
his  release  from  Army  jurisdiction  by  habeas 
corpus  proceedings.  The  court  officials  in 
whose  custody  he  belonged  while  on  parole  are 
the  only  ones  who  could  raise  the  question. 
(Case  of  John  W.  Pieper,  Supreme  Court,  Dis- 
trict of  Columbia,  1912;  see  also  In  re  Fox,  51 
Fed.  Rep.,  427.) 

See  cases  noted  below  under  "Persons  not 
subject  to  jurisdiction  of  Federal  courts- 
martial  . ' ' 

Persons  not  subject  to  jurisdiction  of 
Federal  courts-martial. —  Civilians — Congress 
have  no  power,  and  never  had,  to  subject  a  per- 
son not  in  the  military  or  naval  service  of  the 
United  States  to  a  trial  by  a  court-martial  for  any 
crime,  especially  one  that  is  capital  and  in- 
famous.    This  is  plain  enough  upon  the  face  of 


63 


Art  I,  Sec.  8. 


Pt.  1.   THE  CONSTITUTION. 


Land  and  Naval  Forces. 


tlie  Constitution.  (Ex  parte  Hendereon,  11 
Fed.  Oils.  No.  6349.  As  to  trial  of  civilians  by 
niilitary  courts  in  time  of  war,  see  note  to  Art. 
I.  sec.  8,  clause  11,  ".Military  juri.sdiction  over 
civilians  in  time  of  war, "'  and  see  above,  under 
"Persons  subject  to  jurisdiction  of  Federal 
courts- martial;"  see  also  Holmes  v.  Sheridan, 
12  Fed.  Oils.  No.  6644,  aa  to  trials  of  Army 
contractors;  Martin  v.  Mott,  12  Wlieat.,  19, 
as  to  trials  of  militiixmen  prior  to  entering 
service  of  United  States;  and  U.  S.  v.  Tra\'ers, 
28  Fed.  Oas.  No.  16.537,  as  to  status  of  civilians 
visiting  military  posts.) 

Officers  discharr/ed  from  Army. — A  court- 
martial  has  no  jurisdiction  over  an  officer  of  the 
Army  after  he  has  left  the  service.  (24  Op. 
Atty.  Gen.,  570;  5  Op.  Atty.  Gen.,  55;  compare, 
cases  noted  above,  "Persons  subject  to  juris- 
diction of  Federal  courts-martial.    ) 

Officers  resigned  from  tlie  Navy. — Unless  there 
be  some  act  of  Oongress  which  prolonged  his 
liability  to  military  courts  and  military  offenses 
after  he  had  been  allowed  to  leave  the  ser\dce, 
an  officer  is  not  subject  to  trial  by  naval  court- 
martial  on  charges  preferred  after  that  date. 
(G.  O.  No.  143,  Na\'y  Department,  Oct.  28, 1869; 
see  In  re  Bogart,  3  Fed.  Gas.  No.  1596.) 

Marine  whose  enlistment  has  expired. — ^WTiere 
the  enlistment  of  a  marine  has  expired,  and 
there  is  no  legal  authority  for  retaining  him  in 
the  ser\-ice,  in  point  of  law  he  is  entirely  dis- 
charged from  the  Marine  Ooqis.  "If,  therefore, 
he  had  been  restrained  of  his  liberty,  or  pre- 
vented from  leaving  the  navy  yard,  the  deten- 
tion would  have  been  illegal.  He  might,  by  a 
habeas  corpus  to  this  court,  have  been  liber- 
ated, and  might  well  have  sustained  an  action 
for  damages.  If  under  such  circumstances  he 
had  attempted  to  depart  from  the  navy  yard  and 
had  been  forcibly  prevented,  he  would  have  had 
a  right  to  repel  force  by  force,  and  if  necessary  to 
have  taken  the  life  of  his  opponent.  And  if  he 
had  been  killed  in  this  attempt  to  recover  his 
liberty  it  might  under  such  circumstances  have 
been  murder  in  the  perpetrator.  But  although 
the  prisoner  was  thus  in  contemplation  of  law 
discharged,  yet  he  might  remain  if  he  and  the 
officers  of  the  garrison  pleased.  He  might  re- 
main in  expectation  of  his  pay  or  of  a  pension 
or  of  a  certificate  of  discharge,  which  should  be 
a  voucher  for  his  good  behavior  and  of  his  hav- 
ing left  the  garrison  without  desertion.  And  if 
he  chose  to  remain  (however  reluctantly),  and 
to  perform  military  8er\'ice  partially  until  he 
could  obtain  a  regular  discharge  or  receive  his 
pay,  although  not  a  soldier,  he  was  undoubtedly 
liable  in  a  limited  degree  to  the  regulations 
necessary  to  the  peace  and  subordination  of  a 
military  garrison.  And  even  if  he  was  unlaw- 
fully detained  or  remained  under  an  erroneous 
impression  that  he  was  bound  so  to  do,  this 
would  not  authorize  him,  in  collateral  things, 
to  violate  the  laws.  For  even  an  imlawful  de- 
tention will  not  authorize  a  man  to  perpetrate 
crimes  against  innocent  persons,  or  on  other 
occasions  disconnected  with  his  attempts  to  re- 
cover his  liberty.  *  *  *  But  suppose  him 
to  be  in  the  most  favored  condition  and  entitled 
to  all  the  rights  of  a  stranger,  still  in  a  military 
post  or  garrison  every  person  who  is  voluntarily 
there,  either  as  a  visitor  or  guest,  is  bound  to 


observe  peace  and  order  and  to  conduct  himself 
inoffensively.  If  he  excite  a  riot,  if  he  attempt 
to  stal)  or  wound  or  kill  anyone  within  the  lines, 
he  is  liable  to  be  arrested  and  detained  until  he 
can  be  j)laced  in  the  hands  of  the  proper  tri- 
bimals  having  jurisdiction  to  punish  him.  It 
is  not  competent  for  mere  military  officers  in 
such  cases  to  apply  imprisonment  by  way  of 
punishment,  but  it  is  their  duty  to  apply  it  if 
necessary  to  prevent  bloodshed  and  to  restore 
peace  and  to  keep  the  offender  to  answer  over 
to  a  competent  tribunal."  (U.  S.  v.  Travers, 
28  Fed.  Oas.  No.  16537,  Mr.  Justice  Story.) 

Naval  Militia  men  participating  in  cruises  roith 
Regular  Navy. — "Until  they  are  called  into  the 
service  of  the  United  States,  Naval  Militia  men 
are,  and  remain,  civilians,  and  consequently 
are  not  subject  to  punishment  aa  such.  The 
captain  is  charged  with  the  safety,  discipline, 
and  well-being  of  liis  ship.  He  is  not  charged 
by  law  with  the  discipUne  of  the  passengers, 
except  in  so  far  as  it  affects  the  safety  or  dis- 
cipline of  his  ship,  and  he  is  not  authorized  to 
administer  any  punishments  on  them.  He  is 
clothed  with  full  authority  in  virtue  of  his  po- 
sition to  use  necessary  force  toward  Naval  Mili- 
tia men  who  jeopardize  the  safety  or  discipline 
of  the  ship  or  refuse  conipUance  with  general 
or  special  orders.  In  effecting  this  he  is  author- 
ized to  use  such  ordinary  methods  as  may  be 
necessary.  He  would  be  justified  in  limiting 
offenders  to  certain  parts  of  the  ship  or  exercis- 
ing other  forms  of  restraint,  or  even,  if  circum- 
stances demanded,  confining  the  offender  to  a 
room,  but  always  with  the  object  of  preserving 
the  safety  and  discipline  of  the  ship  and  not  at 
all  in  the  sense  of  inflicting  a  punishment,  as 
such.  *  *  *  The  naval  commanding  officer 
has  supreme  authority  over  all  persons  on  board 
his  ship,  including  members  of  militia  organiza- 
tions; and  *  *  *  while  he  can  not  try  the 
latter  by  court-martial  or  impose  pimishments 
upon  them  imder  article  24  of  the  Articles  for  the 
Government  of  the  Navy  [section  1624,  Re\ised 
Statutes],  nevertheless  he  may,  if  necessary, 
place  them  in  confinement  or  remove  them  from 
the  vessel  when  circTimstances  demand,  under 
lawful  regulations  to  be  adopted  by  the  De- 
partment. It  should,  however,  be  distinctly 
understood  that  such  action  is  not  authorized 
as  punishment,  but  only  in  so  far  as  is  necessary 
to  maintain  the  discipline  of  the  ship  and  the 
supreme  authority  of  the  commanding  officer." 
(File  3973-107,  Feb.  16.  1915.) 

Persons  in  constructive  custody  of  civil  courts. — 
An  enlisted  man  arrested  as  a  deserter  wliile 
on  parole  for  a  civil  offense  will  not  be  tried  by 
court-martial,  because  constructively  in  the 
custody  of  the  civil  authorities,  but  should  be  dis- 
charged from  the  Navy  as  undesirable  as  of  the 
date  of  his  conviction  in  the  civil  courts.  (File 
4495-02,  May  27,  1902;  see  also  File  26283-281; 
In  re  Wall,  8  Fed.  Rep.,  85.) 

An  enlisted  man  released  by  Federal  civil 
authorities  on  bail  should  not  be  placed  under 
restraint  upon  his  return  to  the  Na^^',  unless  it 
should  develop  that  he  is  not  to  be  tried  in  the 
civil  court,  in  view  of  the  fact  that  the  civil 
court  has  adequate  power  to  cause  his  appear- 
ance when  required.  (File  26283-281,  June  27, 
1911;  see  also  21  Op.  Atty.  Gen.,  504.) 


64 


Land  and  Naval  Forces. 


Pt.  1.  THE  CONSTITUTION 


Art.  I,  Sec.  8. 


See  cases  noted  above  under  "Persons  sub- 
ject to  jurisdiction  of  Federal  courts- martial." 

Offenses  triable  by  court  martial. — It  is 
not  possible  for  an  officer  to  do  any  act  punish- 
able by  the  known  laws  of  the  land,  however 
foreign  that  act  may  be  to  his  duties  or  imme- 
diate relation  as  a  soldier,  which  shall  not  be 
cognizable  by  court-martial.  To  commit  a 
crime  of  any  sort  is,  to  say  the  least  of  it,  in  gen- 
eral unofficerlike  and  ungentlemanly  conduct. 
Undoubtedly  cases  may  and  do  occur  of  assault 
or  even  homicide  by  an  officer  of  the  Army 
which  constitute  a  technical  crime  at  law,  the 
facts  of  wliich  when  they  come  to  be  scrutinized 
by  the  eye  of  a  court-martial  would  be  held  the 
reverse  of  crinTinal  and  highly  honorable  to  the 
party  accused.  These  are  exceptional  cases. 
The  general  proposition  remains  true,  that  it  is 
the  part  of  an  officer  and  a  gentleman  to  observe 
the  laws  of  his  country,  and  for  not  doing  it  he 
would  in  most  cases  be  censurable  and  in  all 
his  conduct  would  be  lawfully  subject  to  mili- 
tary inquiry.  His  con\dction  or  acquittal  by 
the  State  court  of  the  offense  against  the  general 
law  does  not  discharge  him  from  responsibility 
for  the  military  offense  invoh^ed  in  the  same 
facts.  (6  Op.  Attv.  Gen.,  413,  cited  with  ap- 
proval in  U.  S.V.Clark,  31  Fed.  Rep.,  710,  712;  see 
also  In  re  Bird,  3  Fed.  Cas.  No.  1428.  As  to  dou- 
ble jeopardy,  see  note  to  Amendments,  Art.  V. ) 

"^Yherever  our  Army  or  Navy  may  go  be- 
yond our  territorial  limits,  neither  can  go  be- 
yond the  authority  of  the  President  or  the 
jurisdiction  of  Congress."  (Ex  parte  Milligan, 
4  Wall.,  141.) 

"When  the  act  charged  as  'conduct  to  the 
prejudice  of  good  order  and  military  discipline' 
la  actually  a  crime  against  society  which  is 
punishable  by  imprisonment  in  the  peniten- 
tiary, it  seems  to  us  clear  a  court-martial  is 
authorized  to  inflict  that  kind  of  punishment. 
The  act  done  is  a  civil  crime,  and  the  trial  is 
for  that  act.  The  proceedings  are  had  in  a 
court-martial  because  the  offender  is  personally 
answerable  to  that  jurisdiction."  (Ex  parte 
Mason,  105  U.  S.,  696.) 

"  Under  every  system  of  military  law,  for  the 
government  of  either  land  or  naval  forces,  the 
jurisdiction  of  courts-martial  extends  to  the 
trial  and  punishment  of  acts  of  military  or  naval 
officers  which  tend  to  biing  disgrace  and  re- 
proach upon  the  service  of  wluch  they  are 
members,  whether  those  acts  are  done  in  the 
performance  of  military  duties,  or  in  a  civil 
position,  or  in  a  social  relation,  or  in  private 
business."  (Smith  v.  Whitney,  116  U.  S.,  168, 
183.) 

Offense  committed  by  de  facto  civilian;  see 
note  to  section  1426,  Revised  Statutes,  "Revo- 
cation of  discharge  issued  under  illegal  sentence 
of  court-martial . ' ' 

Court-martial  can  not  convene  in  foreign 
jurisdiction. — No  naval  court  or  assembly  of 
a  judicial  character  shall  be  ordered  or  per- 
mitted to  asssemble  or  conduct  any  part  of  its 
proceedings  in  any  place  subject  to  foreign 
jurisdiction.  When,  however.  United  States 
forces  have  landed  in  foreign  territory  for  mili- 
tary purposes,  that  part  of  the  foreign  territory 
actually  occupied  by  such  forces  is  not  subject 
to  foreign  jurisdiction  -s^-ithin  the  meaning  of 
this  section.     (Naval  Courts  and  Boards,  1917, 


sec.  215,  citing  C.  M.  O.  No.  42, 1915,  p.  10, 
superseding  Art.  R-703,  Navy  Regs.,  1913.) 

Where  naval  court-martial  was  held  in  place 
subject  to  foreign  jurisdiction,  the  proceedings 
were  disapproved.  (Ilarwood,  p.  57).  Com- 
pare file  26504-254,  Oct.  26,  1915,  C.  M.  O. 
No.  42,1915,  p.  10.) 

See  note  to  Article  I,  section  8,  clause  11, 
under  "IV.  Discipline  of  Army." 

Courts-martial  other  than  naval  can  not 
convene  on  vessel  of  regular  Navy. — Naval 
Militia  officers  can  not  convene  State  courts- 
martial  on  board  a  vessel  of  the  regular  Navy 
in  the  service  of  the  United  States;  as  the  es- 
tablished policy  of  this  Government,  expressed 
in  Navy  Regulations  which  have  been  approved 
by  Congress  and  are  still  in  effect,  does  not 
permit  any  other  than  a  naval  court-martial 
to  be  held  on  board  a  naval  vessel.  (Citing 
Art.  R-3845,  Navy  Regs.,  1913;  Art.  987,  Navy 
Regs.,_  1870;  sec.  1547,  R.  S.)  This  poUcy  has 
its  origin  in  the  customs  and  regulations  of 
the  British  Navy  (citing  McArthur  on  Courts- 
Martial,  1813,  vol.  1,  p.  205).  (File  3973-107, 
Feb.  16,  1915.)  By  act  of  August  29,  1916  (39 
Stat.,  598),  naval  militia  courts-martial  were 
authorized  to  convene  on  board  naval  vessels; 
this  act  was  repealed  by  naval  appropriation 
act  of  July  1,  1918  (40  Stat.,  708),  repealing  all 
laws  "relating  to  the  Naval  Militia  and  the 
National  Naval  Volunteers. " ) 

"In  the  interest  of  the  speedy  administration 
of  justice,  the  prompt  disposal  of  public  busi- 
ness, and  the  general  efficiency  of  the  armed 
forces,"  it  was  recommended  by  the  Judge 
Advocate  General  of  the  Navy  that  article 
R-384o,  Navy  Regulations,  1913,  be  rescinded, 
in  order  that  Army  courts-martial  might  be 
permitted  to  convene  on  naval  vessels.  (File 
26504-339,  Sept.  7,  1918.) 

V.  Jurisdiction  of  Civil  Courts. 

Jurisdiction  of  civil  authorities  over 
persons  in  military  and  naval  service. — 
Commanding  officers  of  the  Army,  in  time  of 
peace,  are  required  under  certain  conditions 
to  deliver  to  the  civil  authorities  for  trial  per- 
sons subject  to  military  law  for  whom  applica- 
tion has  been  duly  made  by  such  civil  authori- 
ties. (Act  Aug.  29,  1916,  39  Stat.,  662,  amend- 
ing sec.  1342,  R.  S.,  art,  59.)  [No  similar 
statute  relating  to  the  Navy;  as  to  naval  orders 
and  practice,  see  note  to  Article  IV,  section  2 
clause  2.] 

There  can  be  no  doubt  of  the  power  of  Con- 
gress to  govern  the  Army  and  Navy  by  bringing 
offenses  committed  in  either  under  the  cogni- 
zance of  the  courts  of  law.  This  power  is  fully 
executed  in  respect  to  the  Army  in  the  Rules  and 
Articles  of  War  [cited  above].  But  no  such 
expression  of  intention  is  introduced  in  the 
naval  code.  Whether,  then,  the  courts  of  law 
are  to  take  cognizance  of  offenses  committed  in 
the  naval  forces  depends  entirely  upon  the  true 
intent  of  Congress  in  that  behalf,  as  expressed 
in  the  Crimes  acts  and  in  the  naval  code.  (U. 
S.  V.  Mackenzie,  30  Fed.  Cas.  No.  18313.) 

There  is  no  act  of  Congress  authorizing  a  call 
by  the  governor  of  a  State  for  the  surrender  of 
an  officer  of  the  Navy  charged  with  having 
broken  the  peace  of  such  State,  nor  any  law 


65 


Art.  I,  Sec.  8. 


Pt.  1.   THE  CONSTITUTION. 


Land  and  Naval  Forces. 


authorizing  an  arrest  by  tho  executive  with  a 
view  to  tho  forcible  surrender  by  him  for  the 
purposes  of  trial.  However,  advised  that  the 
accustnl  be  ordcTtnl  by  the  Navy  Department 
to  surrender  hiuiself.  (1  Op.  Atty.  (jien.,  244; 
Bee  also  note  to  Art.  I,  see.  8,  clause  13,  and 
Art.  IV,  sec.  2,  clause  2.  And  see  note  to  sec. 
355,  R.  S.} 

"Offenclers  in  the  land  forces  in  certain  casee 
were  to  be  delivered  over  to  the  courts  of  law 
for  trial  and  punishment.  A  similar  j^rovision 
is  contained  m  the  EnglLsh  mutiny  act  (2  Mc- 
Arthur,  229),  without  which  it  would  seem  to  be 
thought  that,  under  the  general  authority  to 
try  all  cases  not  capital,  courts-martial  would 
have  exclusive  cognizance  of  that  class  of 
offenses  when  committed  in  the  army  *  *  *. 
But  no  such  direction  or  authority  is  incor- 
porated in  the  naval  code,  and  the  design  of 
Congress,  therefore,  to  give  the  entire  jurisdic- 
tion over  the  offenses  enumerated  to  the  naval 
courts-martial  would  seem  indubitable  *  *  *. 
If  Congress  means  its  penal  law  shall  apply  to 
ships  of  war,  those  vessels  will  be  specifically 
named."  (U.  S.  v.  Mackenzie,  30  Fed.  Cas. 
No.  18313.)  [The  Federal  criminal  code,  ap- 
proved Mar.  4,  1909,  in  terms  extends  to 
crimes  committed  upon  the  high  seas  or  any 
other  waters  within  the  admiralty  and  man- 
time  jurisdiction  of  the  United  States  and  out 
of  the  jurisdiction  of  any  particular  State,  on 
board  any  vessel  "belonging  in  whole  or  in 
part  to  the  United  States."  35  Stat.,  1142, 1148, 
sees.  272,  310.] 

In  the  case  of  Commander  Mackenzie  "the 
act  of  killing  an  inferior  by  a  superior,  which 
came  under  inquiry  charged  as  iinlawful  homi- 
cide, occurred  on  board  a  ship  of  war  at  sea; 
and  the  questions  pertinent  to  the  present  sub- 
ject were  whether  the  act  was  cognizable  ex- 
clusively by  a  naval  coiu-t-martial  or  by  that 
concmrently  with  the  competent  ordinary 
courts  of  the  United  States.  The  fact  of  the 
act  having  occurred  on  board  a  ship  of  war  and 
at  sea  influenced  materially  the  arguments  on 
the  question  of  jurisdiction.  For  this  reason 
Ex-Chancellor  Kent  and  Mr.  Justice  Betts  of 
the  Southern  District  of  New  York  both  in- 
clined, the  former  positively,  the  latter  less  so, 
to  the  opinion  that  the  jm-isdiction  of  the  naval 
authorities  was  exclusive,  more  especially  as 
the  act  of  Congress  for  the  government  of  the 
Na\^  does  not  contain  the  same  recognition  of 
the  civil  authorities  as  that  for  the  government 
of  the  Army  *  *  *.  At  the  same  time  each 
of  those  eminent  jurisconsults  maintained  con- 
fidently the  competency  and  legality  of  a  naval 
court-martial,  at  least  as  having  concurrent 
jurisdiction  with  the  civil  courts."  (6  Op. 
Atty.  Gen.,  413.) 

"Undoubtedly  the  general  rule  is  that  the 
jurisdiction  of  civil  courts  is  concurrent  as 
to  offenses  triable  before  courts-martial." 
(Franklin  v.  U.  S.,  216  U.  S.,  559,  568,  citing 
6  Op.  Atty.  Gen.,  413,  419,  U.  S.  v.  Clark,  31 
Fed.  Rep.,  710.) 

"  That  a  Government  which  possesses  the 
broad  power  of  war,  which  'may  provide  and 
maintain  a  navy,'  which  'may  make  rules  for 
the  government  and  regulation  of  the  land  and 
naval  forces,'  has  power  to  punish  an  offense 
committed  by  a  marine  on  board  a  ship  of  war. 


wherever  that  ship  may  lie,  is  a  proj)Osition 
never  to  be  questioned  in  this  court."  The 
intpiiry  respects  not  the  extent  of  the  power  of 
Congress,  but  the  extent  to  which  that  power 
has  been  exercised.  (U.  S.  v.  Bevans,  3  Wheat., 
33G.) 

A  Federal  statute  providing  for  the  punish- 
ment of  miu-der  committed  on  the  high  seas  or 
on  any  river,  haven,  basin,  or  bay  out  of  the 
jurisdiction  of  any  particular  State,  does  not 
apply  to  murder  committed  on  board  a  warship 
while  in  waters  within  the  jurisdiction  of  the 
State  of  Massachusetts.  (U.  S.  v.  Bevans,  3 
Wheat.,  33G.) 

A  Federal  statute  providing  "that  if  any  per- 
son or  persons  shall,  within  any  fort,  arsenal, 
dockyard,  magazine,  or  in  any  other  place  or 
district  of  country  under  the  sole  and  exclusive 
jurisdiction  of  the  United  States,  commit  the 
crime  of  willful  murder,  such  person  or  persons, 
on  being  thereof  convicted,  shall  suffer  death," 
did  not  include  murder  committed  on  a  United 
States  warship,  as  the  word  "place,"  the  same 
as  the  words  with  which  it  was  associated,  was 
intended  to  apply  to  objects  which  are  "in 
their  nature  fixed  and  territorial."  (U.  S.  v. 
Bevans,  3  'Wheat.,  336.) 

"This  construction  [that  the  word  "place" 
does  not  include  a  warship]  is  strengthened  by 
the  fact  that  at  the  time  of  passing  this  law  the 
United  States  did  not  possess  a  single  ship  of 
war.  It  may,  therefore,  be  reasonably  sup- 
posed that  a  provision  for  the  punishment  of 
crimes  in  the  Navy  might  be  postponed  until 
some  provision  for  a  navy  should  be  made. 
While  taking  this  view  of  the  subject,  it  is  not 
entirely  unworthy  of  remark  that  afterwards, 
when  a  navy  was  created  and  Congress  did 
proceed  to  make  rules  for  its  regulation  and  gov- 
ernment, no  jurisdiction  is  given  to  the  courts 
of  the  United  States  of  any  crime  committed 
in  a  ship  of  war,  wherever  it  may  be  stationed." 
(U.  S.  V.  Bevans,  3  WTieat.,  336.) 

The  word  "place"  within  the  Revised  Stat- 
utes punishing  homicide  embraces  a  United 
States  battleship  moored  at  Cob  Dock,  in  the 
waters  of  Wallabout  Bay,  in  the  East  River, 
these  waters  being  included  in  the  cession  of 
jurisdiction  by  the  State  of  New  York  to  the 
Federal  Government.  "In  the  Bevans  case 
the  defendant  was  indicted  and  convicted  for 
murder  on  board  the  UnitedStates  ship  of  war 
Independence  while  lying  in  the  waters  of 
Boston  Harbor  and  while  such  vessel  was  in 
commission  and  in  the  actual  service  of  the 
United  States.  In  this  case  the  Supreme 
Court  held  that  it  was  not  the  offense  com- 
mitted but  the  place  in  which  it  was  com- 
mitted that  determined  the  question  of  juris- 
diction. It  appeared  that  the  United  States 
had  no  jurisdiction  over  the  waters  of  Boston 
Bay,  in  which  the  gunboat  Independence  was 
lying  when  the  murder  was  committed,  but 
that  such  waters  were  within  the  sole  and  ex- 
clusive jiu-isdiction  of  the  State  of  Massachu- 
setts. The  very  opposite  is  true  in  the  case  at 
bar  *  *  *.  'While  the  facts  of  these  two 
cases  are  very  similar,  yet  they  are  entirely 
different  and  the  direct  opposite  of  each  other 
in  the  matter  of  jurisdiction  *  *  *.  We 
must,  therefore,  hold  that  *  .*  .*  the  bat- 
tleship Indiana  was  a  'place'  within  the  mean- 


66 


Land  and  Naval  Forces. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


ing  of  the  United  States  statutes."  (U.  S.  v. 
Carter,  84  Fed.  Rep.,  622.) 

The  coiirts  of  the  Philippine  Islands  have  no 
jurisdiction  over  offenses  committed  on  board 
a  naval  vessel  at  Cavite,  notwithstanding  the 
provision  in  act  No.  1457  of  the  Philippine 
Commission  that  "the  jiuisdiction  of  the  city 
of  Manila  for  police  piu-poses  only  shall  extend 
to  3  miles  from  the  shore  into  Manila  Bay," 
etc.  The  laws  for  the  government  of  the  Navy, 
the  Na^'y  Regulations,  and  lawful  orders  of 
superior  naval  authority,  embody  the  only 
poUce  regulations  in  force  on  board  naval  ves- 
sels.    (File  26524-19,   Oct.   26,   1910.) 

Article  6  of  the  Articles  for  the  Government 
of  the  Na^'y  (sec.  1624,  R.  S.)  does  not  vest 
exclusive  jurisdiction  in  a  naval  court-martial 
of  the  crime  of  miu-der.  The  general  rule  is 
that  jurisdiction  of  civil  courts  is  concurrent  as 
to  offenses  triable  before  coiuts-martial.  Ac- 
cordingly, heldih^il  homicide  committed  on  a 
naval  hospital  ship  at  Olongapo,  Philippine 
Islands,  by  a  ci^•ihan  may  be  tried  by  a  Federal 
comt  in  the  first  judicial  district  of  the  United 
States  to  which  the  offender  is  brought.  Coiuls 
of  the  Philippine  Islands  did  not  have  jurisdic- 
tion in  this  case,  as  the  offense,  if  any,  was 
against  the  United  States,  and  the  Philippine 
courts  only  have  jurisdiction  of  offenses  against 
Philippine  Government.  (28  Op.  Atty.  Gen., 
24.) 

Public  ships  of  war  of  the  United  States  "are 
exempt  even  from  a  foreign  jiu^isdiction;  and 
when  lying  in  the  domains  of  another  nation  are 
not  subject  to  its  coiu-ts,  but  all  civil  and  crim- 
inal causes  arising  on  board  of  them  are  exclu- 
sively cognizable  in  the  coiuts  of  the  United 
States.  This  is  a  principle  of  public  law  which 
has  its  foundation  in  the  equality  and  inde- 
pendence of  sovereign  States,  and  in  the  fatal 
inconveniences  and  confusion  which  any  other 
rule  would  introduce.  *  *  *  Every  argument 
by  which  this  exemption  is  sustained  as  to  for- 
eign States  applies  with  equal  force  as  between 
the  United  States  and  every  particular  State 
of  the  Union;  and  it  is  fortified  by  other  argu- 
ments drawn  from  the  peculiar  nature  and  pro- 
visions of  our  own  municipal  Constitution." 
(Argument  of  Attorney  General,  U.S.  r.  Bevans, 
3  WTieat.,  373,  374.)  " 

"The  principle  that  ever\'  power  have  ex- 
clusive jurisdiction  over  offenses  committed 
on  board  their  own  public  ships  wherever  they 
may  be  is  also  demonstrated  in  a  speech  of  the 
present  Chief  Justice  of  the  United  States 
[Marshall],  delivered  in  the  House  of  Repre- 
sentatives in  the  celebrated  case  of  Nash  aUas 
Robins,  which  argument,  though  made  in  an- 
other forum  and  for  another  object,  applies  with 
irresistible  force  to  every  claim  of  jurisdiction 
over  a  public  ship  that  may  be  set  up  by  any 
sovereign  power  other  than  that  to  wliich  such 
ship  belongs  (Bee  266  n).  All  jurisdiction  is 
founded  on  consent;  either  the  consent  of  all 
the  citizens  implied  in  the  social  compact  itself, 
or  the  express  consent  of  the  party  or  his  sov- 
ereign. But  in  this  case,  so  far  from  there  being 
any  consent  implied  or  express,  that  the  State 
courts  should  take  cognizance  of  offenses  com- 
mitted on  board  of  ships  of  war  belonging  to  the 
United  States,  those  ships  enter  the  ports  of  the 
different  States  imder  the  permission  of  the 


State  governments,  which  is  as  much  a  waiver 
of  jiuisdiction  as  it  would  be  in  the  case  of  a 
foreign  ship  entering  by  the  same  permission. 
A  foreign  ship  would  be  exempt  from  the  local 
jurisdiction;  and  the  sovereignty  of  the  United 
States  on  board  their  own  ships  of  war  can  not 
be  less  perfect  while  they  remain  in  any  of  the 
ports  of  the  Confederacy  than  if  they  were  in  a 
port  wholly  foreign.  But  we  have  seen  that 
when  they  are  in  a  foreign  port  they  are  exempt 
from  the  jurisdiction  of  the  country.  With 
still  more  reason  must  they  be  exempt  from  the 
jurisdiction  of  the  local  tribiuials  when  they  are 
in  a  port  of  the  Union. "  (Argument  for  United 
States,  U.  S.  v.  Bevans,  3  Wheat.,  352-355.) 
[In  tliis  case  the  Supreme  Court  held  that  it 
was  "unnecessary  to  decide  the  question  re- 
specting the  jurisdiction  of  the  State  court." 
The  Attorney  General  argued  that  "if  the 
offense  in  question  be  not  cognizable  by  the 
circuit  court  [of  the  United  States]  it  is  entirely 
dispunishable,"  [the  State  courts  being  with- 
out jurisdiction,  and  the  naval  courts-martial's 
.jurisdiction  not  including  this  crime,  under  the 
Articles  for  the  Government  of  the  Na^•y].  The 
Supreme  Coiu-t,  however,  merely  decided  that 
the  Federal  circuit  court  did  not  have  jiuis- 
diction.] 

'Wliether,  if  murder  should  be  committed  on 
board  a  ship  of  war  lying  witliin  the  body  of  any 
county,  the  courts  of  the  State  might  not  inter- 
pose, may  well  be  doubted.  (6  Op.  Atty.  Gen., 
413;  compare  Ex  parte  Tatem,  23  Fed.  Cas. 
No.  1759;  16  Op.  Atty.  Gen.,  647.) 

A  naval  court-martial  has  jiu"isdiction  to  try 
an  enlisted  man  of  the  Navy  for  fatally  wound- 
ing another  enlisted  man  on  board  a  ship  of 
war  in  the  Thames  River,  opposite  the  city  of 
New  London,  Conn.  The  civil  authorities  of 
Connecticut  decided  that  the  case  "should  be 
dealt  with  by  the  authorities  of  the  United 
States."  The  Attorney  General  stated,  among 
other  things,  that  the  State  authorities  "might 
probably  "  have  tried  the  man  for  manslaughter. 
(16  Op.  Atty.  Gen.,  578.) 

Murder  committed  by  an  enlisted  man  on 
board  a  naval  vessel  at  the  navy  yard,  Phila- 
delphia, may  be   dealt  with  by  naval  court- 
martial  aa  manslaughter.     (G.  C.  M.  Rec.  No 
16098;  file  6674-10,  Mar.  8,  1910.) 

"The  charge  of  Mr.  Justice  Belts  [in  U.  S.  v. 
Mackenzie,  30  Fed.  Cas.  No.  18313]  is  legal 
authority  to  the  point  that  a  court-martial 
having  lawfully  entered  upon  cognizance  of  a 
case,  the  civil  magistrate  can  not  lawfully 
interrupt  or  disturb  its  jurisdiction  and  right  of 
complete  and  final  action."  (6  Op.  Atty. 
Gen.,  413.) 

"In  any  case  in  which  the  delivery-  of  a  per- 
son in  the  Navy^  or  Marine  Corps  for  trial  is 
desired  by  the  civil  authorities,  Federal  or 
State,  and  such  person  is  a  naval  prisoner 
(which  includes  any  person  serving  sentence  of 
court-martial  or  in  custody  awaiting  trial  by 
court-martial  or  disposition  of  charges  against 
him),  he  will  not  in  general  be  delivered  to  the 
Federal  or  State  authorities  until  he  has  served 
the  sentence  of  the  naval  court-martial,  or  his 
case  has  otherwise  been  finally  disposed  of  by 
the  naval  authorities."  (G.  O.  No.  121,  Navy 
Department.  Sept.  17,  1914;  Naval  Courts  and 
Boards,  1917,  sec.  29  (15). 


67 


Art.  I,  Sec.  8. 


Pt.  1.   THE  CONSTITUTION. 


Land  and  Naval  Forces. 


Ae  to  jurisdiction  of  civil  aulhorilies  over 
persona  in  niilitiiry  service,  see  lurtluT,  note  to 
Article  1,  section  8,  clause  11,  "Jurisdiction 
over  persons  in  military  service  during  war," 
and  note  to  Article  1,  section  8,  clause  13, 
"Exemption  of  Federal  officers  and  subordi- 
nates from  arrest  by  State  authorities." 

VI.  Application    of    Constitution    to    the 
Navy. 

Whether  constitutional  limitations  re- 
strict Congress  in  legislating  for  Navy.— 
The  requirement  as  to  presentment  or  indict- 
ment by  grand  jury  as  a  prerequisite  to  trial  for 
criminal  "offenses,  does  not  extend  to  "cases 
arising  in  the  land  or  naval  forces,  or  in  the 
militia.  Avhen  in  actual  service  in  time  of  war 
or  public  danger."  (Art.  V  of  the  amend- 
ments, Runkle  V.  V.  S.,  19  Ct.  Cls.,  410,  411.) 
[As  to  trials  by  consular  courts,  see  In  re  Ross, 
140  U.S.,  453.] 

The  Sixth  Amendment,  entitling  the  accused 
to  be  confronted  with  the  witnesses  against 
him,  has  no  a])plication  to  the  proceedings  of 
courts-martial;  nevertheless  the  principles 
enumerated  by  the  civil  courts  are  persuasive 
in  gi^^ng  effect  to  a  legislative  enactment  to 
accomplish  a  similar  intent  in  proceedings  of 
courts-martial.  (MuUan  v.  U.  S.,  42  Ct.  Cls., 
157,  176;  aflirmed  212  U.  S.,  516.) 

The  right  of  trial  by  jurj',  guaranteed  to 
persons  accused  of  crime  (Art.  Ill,  sec.  2,  clause 
3,  and  Art.  VI,  amendments)  does  not  apply 
to  persons  in  the  Army  and  Navy,  as  this  right 
was  evidently  intended  to  be  limited  to  persons 
who  were  subject  to  presentment  or  indictment 
by  grand  jurj',  and  also  trial  by  court-martial 
was  the  mode  which  prevailed  in  England  and 
in  the  colonies,  at  the  time  the  Constitution  was 
framed,  for  the  punishment  of  persons  in  the 
military  and  naval  ser^dce.  (See  note  above, 
under  this  clause,  "Trials  by  jury  not  required 
in  the  Navy.")     . 

' '  The  Constitution  itself  provides  for  military 
government  as  well  as  for  civil  government. 
And  we  do  not  understand  it  to  be  claimed  that 
the  civil  safeguards  of  the  Constitution  have 
application  in  cases  within  the  proper  sphere  of 
the  former  *  *  *.  It  ia  not  denied  that  the 
power  to  make  rules  for  the  government  of  the 
Army  and  Navy  is  a  power  to  provide  for  trial 
and  punishment  by  military  courts  without  a 
jury.  It  has  been  so  understood  and  exercised 
from  the  adoption  of  the  Constitution  to  the 
present  time.  Nor  in  our  judgment  does  the 
fifth  or  any  other  amendment  abridge  that 
power  *  *  *.  We  think,  therefore,  that  the 
power  of  Congress  in  the  government  of  the 
land  and  naval  forces  and  of  the  militia  is  not 
at  all  affected  by  the  fifth  or  any  other  amend- 
ment." (Conciuring  opinion  of  Chief  Justice 
Chase  and  three  other  justices  in  Ex  parte  Mil- 
ligan,  4  Wall. ,  137 ;  see  also  In  re  Bogart,  3  Fed. 
Cas.  No.  1596.) 

' '  Aside  from  constitutional  provisions,  it  is  a 
plain  dictate  of  common  justice  that  no  person 
shall  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law."  Accordingly,  the 
proceedings  of  a  court-martial  are  illegal  where 
one  member  was  detached  and  another  substi- 


tuted l)y  the  Chief  of  the  Bureau  of  Navigation 
without  authority  from  the  Secretary  of  the 
Navy  who  convened  the  court.  (22  Op.  Atty. 
Gen.,  137.) 

"  If  it  be  desirable  or  necessary  that  the  pris- 
oner in  a  civil  court  be  present  at  every  pro- 
ceeding after  indictment,  it  seems  to  be  still 
more  so  that  a  prisoner  before  a  court-martial 
should  be  present,  for  he  ordinarily  is  not  repre- 
sented by  counsel  learned  in  the  law  and  watch- 
ful of  his  interests,  but  (as  in  this  case)  by  some 
naval  officer  acting  from  a  humane  motive." 
(Weirman r.  U.  S., 36  Ct. Cls., 236.  See  furtlier 
note  to  Amendments,  Art.  V,  "Proceedings  in 
absence  of  accused.") 

"The  Constitution  does  apply,  and  is  univer- 
sally admitted  to  apply,  with  the  same  force 
and  effect  to  military  courts  as  to  other  tribu- 
nals." (9  Op.  Atty.  Gen.,  230.)  [It  was  held 
by  the  same  Attorney  General  that  an  article  of 
war  "authorized  'depositions  taken  in  accord- 
ance with  it  to  be  read  in  cases  not  capital;' 
although  the  Constitution  provides  that  the 
accused  in  criminal  prosecutions  shall  have  the 
right  to  be  confronted  with  the  witnesses  against 
him."  (File  26260-1392,  June  29,  1911,  p.  30, 
citing  9  Op.  Atty.  Gen.,  311,  312.).] 

"Let  us  see  if  the  sentence  [of  an  Army 
court-martial]  was  void  because  in  violation 
of  the  fifth  amendment.  That  amendment 
declares:  'Nor  shall  any  person  be  subject 
for  the  same  offense  to  be  twice  put  in  jeopardy 
of  life  or  limb.'  The  Government  objects  in 
the  outset  that  the  fifth  amendment  is  not 
applicable  in  proceedings  by  court-martial. 
*  *  *  Resei-ving,  however,  the  determina- 
tion of  these  questions,  it  is  nevertheless  clear 
that  the  system  under  which  the  accused  was 
tried,  and  his  status  as  an  officer  of  the  Army, 
must  be  borne  in  mind  in  deciding  whether 
the  amendment,  if  applicable,  was  or  was  not 
violated  by  this  sentence.  *  *  *  The  result 
is  that  we  are  of  opinion  that  the  sentence  can 
not  be  invalidated  on  any  of  the  grounds  so 
far  considered."  (Carter  v.  McClaughry,  183 
U.  S.,  365.)  [It  was  not  decided  in  this  case 
whether  the  prohibition  against  double  jeop- 
ardy, in  the  fifth  amendment,  applies  to  Army 
courts-martial.  But  see  Grafton  v.  U.  S.,  206 
U.  S.,  352,  noted  below.] 

Courts-martial  are  "courts  authorized  by  law 
in  the  enforcement  of  a  system  of  government 
for  a  separate  community  recognized  by  the 
Constitution,"  and  "it  is  difficult  to  see  why" 
the  finality  of  their  sentences  should  not  be 
determined  by  the  same  rule  which  has  been 
applied  to  the  courts  of  the  District  of  Columbia. 
(Carter  v.  McClaughry,  183  U.  S.,  365.  For  de- 
cisions as  to  whether  constitutional  limitations 
restrict  Congress  in  legislating  for  the  District 
of  Columbia  and  for  the  Territories,  see  note  to 
Art.  IV,  sec.  3,  clause  2.) 

The  fact  that  Congress  is  given  power  by 
the  Constitution  "to  make  rules  for  the  gov- 
ernment and  regulation  of  the  land  and  naval 
forces"  does  not  enable  it  to  control  the  Presi- 
dent's discretion  in  respect  of  those  appoint- 
ments which  the  same  supreme  law  [Const., 
Art.  II,  sec.  2,  clause  2]  requires  him  to  make. 
The  general  power  to  regulate  such  forces  can 
not  be  taken  to  nullify  the  specific  mandate 


68 


The  Militia. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


to  the  President  to  appoint  to  offices  where 
Congress  has  made  no  other  provision.  (30 
Op.  Atty.  Gen.,  177;  see  also  note  to  Art.  II, 
sec.  2,  clause  2.) 

"Congress,  by  express  constitutional  pro- 
vision, has  the  power  to  prescribe  rules  for 
the  government  and  regulation  of  the  Army, 
but  those  rules,  must  be  interpreted  in  con- 
nection with  thie  prohibition  against  a  man's 
being  put  twice  in  jeopardy  for  the  same 
offense.  The  former  provision  must  not  be 
so  interpreted  as  to  nullify  the  latter."  (Graf- 
toQ^;.  U.  S.,206U.  S.,  352.) 

A  board  of  officers  organized  under  an  act  of 
Congress  for  the  reduction  of  the  Army  is  "not 
a  court  of  any  kind,"  and  it  is  unnecessary  to 
consider  "how  far  its  irregularities  extended," 


although  it  is  contended  by  an  officer  mustered 
out  of  the  service  pursuant  to  the  board 's  finding 
that  its  proceedings  "were  in  many  respects 
irregular,  illegal,  and  in  violation  of  his  consti- 
tutional rights."  (Duryea  v.  U.  S.,  17  Ct.  Cls., 
24;  see  also  file  26260-1392,  June  29,  1911.) 

See  In  re  Ross  (140  U.  S.,  453),  holding  that 
"By  the  Constitution  of  the  United  States  a 
government  is  ordained  and  established  'for 
the  United  States  of  America,'  and  not  for 
countries  outside  of  their  limits;  and  that 
Constitution  can  have  no  operation  in  another 
country";  and  accordingly  that  Congress  is 
empowered  to  authorize  the  trial  of  a  capital 
offense  by  a  consular  court  in  China,  etc., 
without  indictment  by  grand  jury,  and  with- 
out a  jury  on  the  trial. 


[Clause  15.  Calling  forth  of  the  Militia.]     ^^  To  provide  for  calling  forth  the 

Militia  to  execute  the  Laws  of  the  Union,  suppress  Insurrections  and  repel 

Invasions; 

and  proper  means  to  effectuate  the  object. 
One  of  the  best  means  to  repel  invasions  is  to 
provide  the  requisite  force  for  action  before 
the  invader  Mmself  has  reached  the  soil." 
(Martin  v.  Mott,  12  Wheat.,  19.) 

"The  Constitution,  which  enumerates  the 
exclusive  purposes  for  which  the  militia  may  l)e 
called  into  the  service  of  the  United  States,  af- 
fords no  warrant  for  the  use  of  the  militia  by  the 
General  Government,  except  to  suppress  insur- 
rection, repel  invasions,  or  to  execute  the  laws 
of  the  Union,  and  hence  the  President  has  no 
authority  to  call  forth  the  Organized  Militia  of 
the  States  and  send  it  into  a  foreign  country 
with  the  Regular  Army  as  a  part  of  an  army  of 
occupation."     (29  Op.' Atty.  Gen.,  322.) 

"As  'insurrection'  is  necessarily  internal  and 
domestic,  within  the  territorial  limits  of  the 
Nation,  this  portion  of  the  sentence  can  afford 
no  warrant  for  sending  the  militia  to  suppress 
it  elsewhere.  And  even  if  an  insiurection  of 
our  own  citizens  were  set  on  foot  and  threaten- 
ingly maintained  in  a  foreign  jm-isdiction  and 
upon  our  border,  to  send  an  armed  force  there 
to  suppress  it  would  be  an  act  of  war  which  the 
President  can  not  rightfully  do. "  (29  Op.  Atty. 
Gen.,  322.) 

"The  term  'to  repel  invasion'  may  be,  in 
some  respects,  more  elastic  in  its  meaning. 
Thus,  if  the  militia  were  called  into  the  ser\dce 
of  the  General  Government  to  repel  an  invasion, 
it  would  not  be  necessary  to  discontinue  their 
use  at  the  boundary  line,  but  they  might  (with- 
in certain  limits  at  least)  pursue  and  capture 
the  invading  force,  even  beyond  that  line,  and 
just  as  the  Regular  Army  might  be  used  for 
that  purpose.  Tliis  may  well  be  held  to  be 
witliin  the  meaning  of  the  term  'to  repel  inva- 
sion.' Then,  too,  if  an  armed  force  were  assem- 
bled upon  our  border,  so  near  and  under  cir- 
cumstances which  plainly  indicated  hostility 
and  an  intended  invasion,  this  Government 
might  attack  and  captm'e  or  defeat  such  forces, 
using  either  the  Regular  Army  or  the  militia 
for  that  purpose.  This,  also,  would  be  but  one 
of  the  ways  of  repelling  an  invasion.  But  this 
is  quite  different  from  and  affords  no  warrant 


Naval  Militia. — Congress  has  provided  ' '  that 
in  the  event  of  war,  actual  or  threatened,  with 
any  foreign  nation  involving  danger  of  inva- 
sion, or  of  rebellion  against  the  authority  of  the 
Government  of  the  United  States,  or  whenever 
the  President  is,  in  his  judgment,  unable  with 
the  regular  forces  at  his  command  to  execute 
the  laws  of  the  United  States,  it  shall  be  lawful 
for  the  President  to  call  forth  such  nimiber  of 
the  Naval  IMilitia  of  a  State,  or  of  the  States,  or 
Territories,  or  of  the  District  of  Columbia,  as  he 
may  deem  necessary  to  repel  such  invasion, 
suppress  such  rebellion,  or  to  enable  him  to  ex- 
ecute such  laws,  and  to  issue  liis  orders  for  that 
purpose,  through  the  governor  of  the  respective 
State  or  Territory,  or  through  the  commanding 
officer  of  the  Naval  Militia  of  the  District  of 
Columbia,  from  which  State,  Territory,  or  Dis- 
trict such  Naval  Militia  may  be  called,  to  such 
officers  of  the  Naval  Militia  as  he  may  think 
proper."  (Sec.  3,  act  Feb.  16,  1914,  38  Stat., 
284,  repealed  by  naval  appropriation  act  July 
1,  1918,  40  Stat.,  708.) 

"The  authority  to  decide  whether  the  exi- 
gencies contemplated  in  the  Constitution  of  the 
United  States,  and  the  act  of  Congress  *  *  * 
in  which  the  President  has  authority  to  call 
forth  the  militia,  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  inva- 
sions, have  arisen,  is  exclusively  vested  in  the 
President,  and  his  decision  is  exclusive  [con- 
clusive] upon  all  other  persons."  (Martin  v. 
Mott,  12^Vheat.,  19;  Luther  i;.  Borden,  7  How., 

''It  is  obvious  that  there  are  two  ways  by 
which  the  militia  may  be  called  into  service; 
the  one  is  under  State  authority,  the  other  un- 
der authority  of  the  United  States.  *  *  *  But 
the  possession  of  this  power,  or  even  the  passing 
of  laws  in  the  exercise  of  it,  does  not  preclude 
the  General  Government  from  leaning  upon  the 
State  authority,  if  they  think  proper,  for  the 
purpose  of  calling  the  miUtia  into  service." 
(Houston  V.  Moore,  5  Wlieat.,  1,  36.) 

"The  power  to  provide  for  repelling  invasions 
includes  the  power  to  provide  against  the  at- 
tempt and  danger  of  invasion,  as  the  necessary 


69 


Art.  I,  Sec.  8. 


Ft.  1.   THE  CONSTITUTION. 


The  Militia. 


for  sending  the  militia  into  a  foreign  country  in 
time  of  poace  and  when  no  invasion  is  made  or 
throalened."    (29  Op.  Atty.  Gen..  322.) 

"The  only  remaining  occasion  for  calling  out 
the  militia  is  'to  execute  the  laws  of  the  Union.' 
But  this  certainly  means  to  execute  such  laws 
where,  and  only  where,  they  are  in  force  and 
can  be  executed  or  enforced.  *  *  *  Outside 
of  our  own  limits '  the  laws  of  the  Union '  are  not 
executed  by  armed  force,  either  regular  or  mili- 
tia. *  *  *  ^\^lat  is  certainly  meant  by  this 
pro^'ision  is,  that  Congress  shall  have  power  to 
call  out  the  militia  in  aid  of  the  civil  power,  for 
the  peaceful  execution  of  the  laws  of  the  Union, 
wherever  such  laws  are  in  force  and  may  be 
compulsorily  executed^  much  as  a  sheriff  may 
call  upon  a  posse  comitatus  to  peacefully  dis- 

gerse  a  riot  or  execute  the  laws.  Under  our 
onstitution,  as  it  has  been  uniformly  con- 
strued from  the  first,  the  military  is  subordinate 
and  subser^•ient  to  the  civil  power,  and  it  can 
be  called  upon  to  execute  the  laws  of  the  Union 
only  in  aid  of  the  civil  power  and  where  the 
ci\nl  power  has  jurisdiction  of  such  enforce- 
ment. Even  the  Regular  Ai-my  can  be  thus 
called  upon  only  on  such  occasions;  and,  cer- 
tainly, the  militia  can  not  be  thus  called  upon 
at  any  other."    (29  Op.  Atty.  Gen.,  322.) 

Congress  has  provided  that  the  Naval  Militia, 
when  called  into  the  service  of  the  United 
States,  shall  be  required  to  serve  "either  within 
or  without  the  territory  of  the  United  States." 
(Act  Feb.  16,  1914,  sec.  4,  38  Stat.,  284,  Gen. 
Order  No.  77,  Feb.  25,  1914,  repealed  by  naval 
appropriation  act  July  1,  1918;  40  Stat.,  708.) 


Such  a  provision  '"must  be  read  in  view  of  the 
constitutional  power  of  Congress  to  call  forth  the 
militia  only  to  suppress  insurrection,  repel  in- 
vasions, or  to  execute  tlie  laws  of  the  Union. 
Congress  can  not,  by  its  own  enactment,  enlarge 
the  power  conferred  upon  it  by  the  Constitu- 
tion; and  if  this  provision  were  construed  to 
authorize  Congress  to  use  the  Organized  Militia 
for  any  other  than  the  three  purposes  specified, 
it  would  be  unconstitutional.  This  provision 
applies  only  to  cases  where,  under  the  Consti- 
tution, said  militia  may  l^e  used  outside  of  our 
own  borders,  and  was,  doubtless,  inserted  as  a 
matter  of  precaution  and  to  prevent  the  pos- 
sible recurrence  of  what  took  place  in  our  last 
war  with  Great  Britain,  when  portions  of  the 
militia  refused  to  obey  orders  to  cross  the 
Canadian  border."    (29  Op.  Atty.  Gen.,  322  ) 

Duty  outside  the  United  States  under 
selective  di'af  t  law. — The  service  which  may 
be  exacted  of  tlie  citizen  undor  the  Army 
power,  which  includes  the  power  to  compel 
military  service,  is  not  limited  to  the  specific 
purposes  for  which  Congress  is  expressly  au- 
thorized by  the  militia  clause  to  call  the 
militia;  the  presence  in  the  Constitution  of 
such  express  regulations  affords  no  basis  for  an 
inference  that  the  Army  power,  when  exerted, 
is  not  complete  and  dominant  to  the  extent  of 
its  exertion.  (Selective  Draft  Law  Cases,  245 
U.S.,  366.) 

Congress  may  conscript  for  military  duty  in 
a  foreign  country;  the  militia  clause  is  not  a 
limitation  upon  the  war  power.  (Cox  v .  Wood, 
247  U.  S.,  3.) 


[Clause  16.  Power  over  the  militia.]  ^^  To  provide  for  organizing,  arming, 
and  disciplining  the  Militia,  and  for  governing  such  Part  of  them  as  may  be 
employed  in  the  Service  of  the  United  States,  reserving  to  the  States  respectively, 
the  Appointment  of  the  Officers,  and  the  Authority  of  trainhig  the  Militia 
according  to  the  discipline  prescribed  by  Congress; 

Naval  MiUtia. — Congress  made  detailed 
provision  for  "organizing,  arming,  and  dis- 
ciplining" the  naval  militia  and  "  for  governing 
such  part  of  them  as  may  he  employed  in  the 
service  of  the  United  States,"  by  act  February 
16,  1914.  (38  suit.,  283,  G.  O.  No.  77,  Feb.  25, 
1914;  repealed  by  naval  appropriation  act  July 
1,  1918,  40  Stat.  708.) 

' '  Congress  is  thus  expressly  vested  with  the 
power  to  *  *  *  provide  for  governing  such 
part  only  of  the  militia  of  the  several  States  as, 
having  been  called  forth  to  execute  the  laws  of 
the  Union,  to  6ui)press insurrections,  or  to  repel 
invasions,  is  employed  in  the  sei^vice  of  the 
United  States."  (Johnson  r.  Sayre,  158 U.  S., 
114.) 

"It  is  also  too  plain  for  argument  that  the 
power  here  given  to  Congress  over  the  militia 
is  of  a  limited  nature  and  confined  to  the  objects 
specified  in  these  clauses,  and  that  in  all  other 
respects  and  for  all  other  puqjoses  tlie  militia  are 
subject  to  the  control  and  government  of  the 
State  authorities."  (Houston  v.  Moore,  _  5 
WTieat.,  1,  50,  dissenting  opinion  of  Mr.  Justice 
Story.) 

"Congress  have  no  power  and  never  had  to 
subject  a  militiaman  not  in  the  military  or  naval 


service  of  the  United  States  *  *  *  to  a  trial 
by  court-martial  for  any  crime,  especially  one 
that  is  capital  or  infamous.  This  is  plain 
enough  upon  the  face  of  the  Constitution." 
(Ex  parte  Henderson,  11  Fed.  Cas.,  1076.) 

The  purpose  of  the  naval  militia  law  of 
February  16,  1914,  "is  to  encourage  on  the  part 
of  the  Government  the  development  of  a  source 
from  which  the  Nation  in  time  of  war  may  be 
supplied  witli  a  body  of  men  trained  in  the 
handling  of  the  weapons  of  marine  warfare  that 
may  immediately  1>e  added  to  the  RegularNavy 
for  the  efficient  handling  of  vessels  of  war." 
Naval  vessels  loaned  to  State  militia  organiza- 
tions may  be  used  only  for  the  training  and  in- 
struction of  the  militia.  ""WTiile  it  may  per- 
haps be  said  that  in  a  certain  sense  the  use  by 
the  State  of  IMaryland  of  the  Montgomery  for  the 
purpose  of  quelling  'riots,  insurrection,  or  de- 
fiance of  civil  law  within  the  State  limits '  is  such 
a  use  as  may  tend  to  promote  the  efficiency  of 
the  naval  militia  that  may  1)0  aboard ,  it  is  never- 
theless considered  that  such  a  use  of  a  naval 
vessel,  her  armament  and  equipment,  for  what 
is  in  reality  a  purely  local  police  work  is  a  use 
entirely  foreign  to  the  promotion  of  tlie  effi- 
ciency of  th%  naval  militia  as  contemplated  by 


70 


Exclusive  jurisdiction. 


Pt.  1.  THE  CONSTITUTION. 


Art.  I,  Sec.  8. 


the  act  of  February  16,  1914  *  *  *."  (File 
4570-194,  Mar.  15,  1915.) 

"So  long  as  the  militia  are  acting  under  the 
miUtary  jurisdiction  of  the  State  to  wluch  they 
belong,  the  powers  of  legislation  over  them  are 
concurrent  in  the  General  and  State  Govern- 
ment. Congress  has  power  to  provide  for  organ- 
izing, arming,  and  disciplining  them,  and  this 
power  being  unlimited,  except  in  the  two  par- 
ticulars of  officering  and  training  them,  accord- 
ing to  the  discipline  to  be  prescribed  by  Con- 
gress, it  may  be  exercised  to  any  extent  tha- 
may  be  deemed  necessary  by  Congress.  But  at 
State  militia  the  power  of  the  State  govern- 
ments to  legislate  on  the  same  subjects  having 
existed  prior  to  the  formation  of  the  Constitu- 
tion and  not  having  been  prohibited  by  that  in- 
stniment  it  remains  with  the  States,  subordi- 
nate, nevertheless,  to  the  paramount  law  of  the 
General  Government  operating  upon  the  same 
subject. ' '     (Houston  v .  Moore,  5  \\Tieat.  ,1,16.) 

' '  After  a  detachment  of  the  militia  have  been 
called  forth,  and  have  entered  into  the  service 
of  the  United  States,  tlie  authority  of  the  Gen- 
eral Government  over  such  detachment  is  ex- 
clusive. This  is  also  obvious.  Over  the  na- 
tional militia  the  State  governments  never  had 
or  could  have  jurisdiction.  None  such  is  con- 
ferred by  the  Constitution  of  the  United  States, 
consequently  none  such  can  exist."  (Houston 
V.  Moore,  5  IVheat.,  1,  17.) 

Congress  is  empowered  to  fix  the  period  when 
a  portion  of  the  militia,  called  forth  by  the  Presi- 
dent, shall  enter  the  service  of  the  United  States 
and  change  their  character  from  State  to  Na- 
tional militia.  "That  Congress  might  by  law 
have  fixed  the  period  by  confining  it  to  the 
draft,  the  order  given  to  the  chief  magistrate  or 
other  militia  officer  of  the  State,  to  the  arrival  of 
the  men  at  the  place  of  rendezvous,  or  to  any 
other  ch'cumstance,  I  can  entertain  no  doubt. 
This  would  certainly  be  included  in  the  more 
extensive  powers  of  calling  forth  the  militia,  or- 
ganizing, arming,  disciplining,  and  governing 
them."     (Houston  v.  Moore,  5  "\\lieat.,  1,  17.) 

Congress  may  provide  for  the  punishment  by 
court-martial  of  a  militiaman  who  refuses  or 
neglects  to  o))ey  the  order  of  the  President  call- 
ing forth  the  militia.  "This  flows  from  the 
power  l^e&towed  upon  the  General  Government 
to  call  them  forth,  and  consequently  to  punish 
disobedience  to  a  legal  order,  and  by  no  means 
proves  that  the  call  of  the  President  places  the 
detachment  in  the  service  of  the  United  States." 
(Houston  V.  Moore,  5  WTieat.,  1,  18.) 

"Although  a  militiaman  who  refused  to  obey 
the  orders  of  the  President  calling  him  into  the 
public  ser\dce  under  the  act  of  1795  is  not,  in  the 
sense  of  that  act, '  employed  in  the  service  of  the 
United  States'  so  as  to  be  subject  to  the  rules 
and  articles  of  war,  yet  he  is  liable  to  be  tried 
for  the  offense  under  the  fifth  section  of  the  same 
act,  by  a  court-martial,  called  under  the  au- 
thority of  the  United  States."  (Martin  v.  Mott, 
12  Wheat.,  19.)  Under  the  same  circumstances 
the  militiaman  might  be  tried  by  a  court- 


martial  of  the  State  for  refusing  to  respond  to  the 
call  of  the  President.  (Houston  v.  Moore,  5 
^^lieat.,  1.) 

Members  of  the  naval  militia,  participating 
with  the  Regular  Navy  in  cruises  for  the  purpose 
of  training  and  instruction,  are  not  employed  in 
the  service  of  tlie  United  States,  but  remain 
civilians  and  consequently  are  not  subject  to 
punishment  under  the  Articles  for  the  Govern- 
ment of  the  Navy.  The  naval  officer  in  com- 
mand has,  however,  full  authority  to  enforce 
any  orders  which  affect  the  discipline,  safety, 
and  well-being  of  the  sliip  or  any  part  of  the 
armament,  equipment,  or  crew  of  the  vessel 
under  his  command,  and  to  this  end  may,  if 
necessary,  place  militiamen  in  confinement  or 
remove  them  from  the  vessel  under  lawful  regu- 
lations issued  by  the  Na\'y  Department,  not  as 
punishment,  but  merely  to  maintain  discipline. 
(File  3973-107,  Feb.  16,  1915;  see  note  to 
Art.  I,  sec.  8,  clause  14,  concerning  jurisdiction 
of  Federal  courts-martial.) 

Naval  militia  officers  can  not  impose  punish- 
ments on  men  belonging  to  their  organizations 
while  cruising  on  board  a  vessel  of  the  Regular 
Navy,  nor  can  naval  militia  officers  convene 
State  courts-martial  on  such  vessels.  (File 
3973-107,  Feb.  16,  1915.)  By  act  of  Aug.  29, 
1916,  39  Stat.,  598,  naval  militia  courts-martial 
were  authorized  to  convene  on  board  naval 
vessels;  this  act  was  repealed  by  naval  appro- 
priations act  July  1,  1918  (40  Stat.,  708). 

Naval  militia  officers  cruising  with  the  Regu- 
lar Navy  for  training  and  instruction  are  author- 
ized by  law  to  perform  duty  and  to  exercise  au- 
thority over  the  naval  personnel  ot  inferior  rank, 
but  can  not  impose  punishments  upon  persons 
in  the  naval  service.  (Pile  3973-107,  Feb.  16, 
1915.) 

"A  State  statute  providing  that  all  able- 
bodied  male  citizens  of  the  State  between  18 
and  45,  except  those  exempted,  shall  be  subject 
to  military  duty,  and  shall  be  enrolled  and  de- 
signated as  the  State  militia  and  prohibiting  all 
bodies  of  men  other  than  the  regularly  organized 
volunteer  militia  of  the  State  and  the  troops  of 
the  United  States  from  associating  together  as 
military  organizations  or  drilling  or  parading 
with  arms  in  any  city  of  the  State  without 
license  from  the  governor,  as  to  these  provisions 
is  constitutional  and  does  not  infringe  the  laws 
of  the  United  States."  (Presser  v.  Illinois,  116 
U.  S.,  252.) 

Federal  power  dominant. — The  militia 
power  reserved  to  the  States  by  the  militia 
clause  of  the  Constitution,  while  separate  and 
distinct  in  its  field,  and  while  serving  to  dimin- 
ish occasion  for  exercising  the  Army  power, 
is  subject  to  be  restricted  in,  or  even  deprived 
of,  its  area  of  oijeration  through  the  Army 
power,  which  includes  the  power  to  compel 
military  service,  according  to  the  extent  to 
which  Congress,  in  its  discretion,  finds  neces- 
sity for  calling  the  latter  into  play.  (Selective 
Draft  Law  Cases,  245  U.  S.,  366.) 


[Clause  17.  Power  of  exclusive  legislation.]  ^'  To  exercise  exclusive  Legis- 
lation in  all  Cases  whatsoever,  over  such  District  (not  exceeding  ten  ^iiles 
square)  as  may,  by  Cession  of  particular  States,  and  the  acceptance  of  Congress, 


71 


Art.  I,  Sec.  9. 


Pt.  1.   THE  CONSTITUTION. 


Habeas  Corpus. 


become  the  Seat  of  the  Government  of  the  United  States,  and  to  exercise 
hke  Authority  over  all  Places  purchased  l)y  the  Consent  of  the  Legislature 
of  the  State  in  which  the  Same  shall  be,  for  the  Erection  of  Forts,  Magazines, 
Arsenals,  dock-Yards,  and  other  needful  Buildings; — And 

See  note  to  section  355,  Revised  Statutes,  as  to  jurisdiction  over  naval  reservations 
and  other  places  belonging  to  the  United  States. 

[Clause  18.  General  legislative  power. 1  '^  To  make  all  Laws  which  shall 
be  necessary  and  proper  for  carrying  hito  Execution  the  foregoing  Powers,  and 
all  other  Powers  vested  by  this  Constitution  in  the  Government  of  the  United 
States,  or  in  any  Department  or  Officer  thereof. 

Sectiox  9.  [Clause  1.  Migration  or  importation  of  persons.]  ^  The  Migra- 
tion or  Importation  of  such  Persons  as  any  of  the  States  now  existing  shall 
think  proper  to  admit,  shall  not  be  prohibited  by  the  Congress  prior  to  the 
Year  one  thousand  eight  hundred  and  eight,  but  a  tax  or  duty  may  be  imposed 
on  such  Importation,  not  exceeding  ten  dollars  for  each  Person. 

[Clause  2.  Writ  of  habeas  corpus.]  -  The  privilege  of  the  Writ  of  Habeas 
Corpus  shall  not  be  suspended,  unless  when  in  Cases  of  Rebellion  or  Invasion 
the  public  Safety  may  require  it. 

Cranch,  75,  101;  followed  by  Taney,  C.  J.,  in 
Ex  parte  Merryman,  17  Fed.  Cas.  No.  9487; 
see  also  Ex  parte  Benedict,  3  Fed.  Cas.,  1292; 
McCall  V.  McDowell,  15  Fed.  Cas.  No.  8673;  In 
re  Kemp,  16  Wis.,  359,  377;  Griffin  v.  Wilcox,  21 
Ind.,  383;  8  Op.  Atty.  Gen.,  372;  Warren  v. 
Paul,  22  Ind.,  277;  Prigg  v.  Pennsylvania,  16 
Pet.,  619;  Wright  i-.  Johnson,  5  Ark.,  687;  In  re 
Boyle,  6  Idaho,  609, 57  Pac,  706,45  L.  R.  A.,  832; 
Ex  parte  Moore,  64  N.  C,  802.) 

The  President  has  power  to  declare  martial 
law,  and  as  a  necessary  consequence  to  suspend 
the  privilege  of  the  writ  of  habeas  corpus. 
Martial  law  and  the  pri^■ilege  of  this  writ  are 
wholly  incompatible.  The  remark  of  Chief 
Justice  Marshall  in  the  Bollman  case  seems  to 
have  been  an  obiter  dictum  [a  remark  made  by 
the  way,  or  incidentally];  and  at  the  time  of 
Chief  Justice  Taney's  opinion,  the  President 
had  not  declared  martial  law;  the  case  of  Ex 
parte  Benedict  is  to  be  distinguished  for  the 
same  reason.  (Ex  parte  Field,  9  Fed.  Cas.  No. 
4761;  see  also  Ex  parte  Vallandigham,  27  Fed. 
Cas.  No.  16816.) 

"There  is  a  plain  distinction  between  the 
suspension  of  the  writ  in  the  sense  of  the  clause 
of  the  Constitution,  and  the  right  of  a  military 
commander  to  refuse  obedience  when  justified 
by  the  exigencies  of  war,  or  the  ipso  facto  sus- 
pension which  takes  place  wherever  martial 
law  actually  exists,  wliich  the  Chief  Justice 
seems  to  have  overlooked.  But  this  kind  of 
suspension,  which  comes  with  war  and  exists 
without  proclamation  or  other  act,  is  limited 
by  the  necessities  of  war.  It  applies  only  to 
cases  where  the  demands  upon  the  officer's 
time  and  ser^dce8  are  such  that  he  can  not  con- 
sistently with  his  superior  military  duty,  yield 
obedience  to  the  mandates  of  the  civil  authori- 
ties, and  to  cases  arising  within  districts  which 
are  properly  subjected  to  martial  law.  In  cases 
of  the  latter  description,  it  is  probable  that  the 
civil  magistrates  would  be  bound  to  take  judi- 
cial notice  of  the  existence  of  martial  law,  by 


Definition. — The  writ  of  habeas  corpus  is  a 
high  prerogative  writ  known  to  the  common 
law,  the  great  object  of  which  is  the  liberation 
of  those  who  may  be  imprisoned  without  suf- 
ficient cause.  It  is  in  the  nature  of  a  writ  of 
error  to  examine  the  legality  of  the  commit- 
ment. (Ex  parte  Watkins,  3  Pet.,  202.)  [The 
ordinary  writ  of  habeas  corpus,  known  as  "ha- 
beas corpus  ad  subjuciendum,"  is  the  written 
order  of  a  judge  or  court  of  competent  jurisdic- 
tion, addre&sed  to  a  person  who  is  alleged  to 
restrain  another  of  his  liberty  without  authority 
of  law,  and  requiring  the  speedy  production  in 
court  of  the  person  so  alleged  to  be  illegally 
restrained,  together  with  a  return  or  statement 
setting  forth  the  true  cause  of  such  restraint. 
If  satisfactory  cause  be  shown  at  the  hearing, 
the  court  will  remand  the  prisoner  into  the 
custody  of  the  respondent;  otherwise  his  im- 
mediate release  will  be  ordered.] 

"For  the  meaning  of  the  term  habeas  corpus, 
resort  must  unquestionably  be  had  to  the  com- 
mon law;  but  the  power  to  award  the  writ  by 
any  of  the  courts  of  the  United  States  must 
be  given  by  the  written  law."  (Ex  parte 
Bollman,  4  Cranch,  75.) 

Only  "privilege"  of  writ  may  be  sus- 
pended.— "Suspension  of  the  privilege  of  the 
writ  of  habeas  corpus  does  not  suspend  the 
writ  itself.  The  writ  issues  as  a  matter  of 
course;  and  on  its  retiu-n  the  court  decides 
whether  the  applicant  is  denied  the  right  of 
proceeding  any  further."  (Ex  parte  Milligan, 
4  Wall.,  2;  see  also,  In  re  Fagan,  8  Fed.  Cas.  No. 
4604.) 

May  be  suspended  only  by  authority  of 
Congress. — "If  at  any  time  the  pubUc  safety 
should  require  the  suspension  of  the  powers 
vested  by  this  act  in  the  courts  of  the  United 
States  [that  is,  the  power  to  issue  writs  of  ha- 
beas corpus],  it  is  for  the  legislature  to  say  bo. 
The  question  depends  on  political  considera- 
tions on  which  the  legislature  is  to  decide." 
(Per  Marshall,   C.   J.,    Ex  parte  Bollman,   4 


72 


Bills  of  Attainder. 


Pt.  1.   THE  CONSTITUTION. 


Art.  I,  Sec.  9. 


which  their  functions  are  so  far  suspended,  but 
as  to  the  former,  it  would  seem  that  the  military 
officer  should,  if  practicable,  make  return  of 
the  facts  showing  his  excuse."  (In  re  Kemp, 
16  Wis.,  359.) 

Only  Congress  can  repeal  all  power  to  issue 
the  writ;  but  the  President  has  lawful  power 
to  suspend  the  privilege  of  persons  arrested  in 
case  of  a  great  and  dangerous  rebellion,  for  he  is 
especially  charged  by  the  Constitution  with  the 
"public  safety."  (10  Op.  Atty.  Gen.,  74;  see 
also  In  re  Dugan,  6  D.  C,  139.) 

By  act  of  March  3,  1863,  Congress  authorized 
the  President  to  suspend  the  privilege  of  the 
wi'it  of  habeas  corpus  "during  the  present  re- 
bellion," whene\'er  in  his  judgment  the  public 
safety  may  require  it.  "This  law  was  passed 
in  a  time  of  gi'eat  national  peril,  when  oiu" 
heritage  of  free  government  was  in  danger. 
An  armed  rebellion  against  the  national  au- 
thority, of  greater  proportion  than  liistory  af- 
fords an  example  of,  was  raging;  and  the  pub- 
lic safety  required  that  the  privilege  of  the 
writ  of  habeas  corpus  should  be  suspended. 
The  President  had  practically  suspended  it, 
and  detained  siispected  persons  in  custody 
without  trial;  but  his  authority  to  do  this  was 
questioned.  It  was  claimed  that  Congress 
alone  could  exercise  this  power;  and  that  the 
legislature,  and  not  the  President,  should 
judge  of  the  political  considerations  on  which 
the  right  to  suspend  it  rested.  The  privilege 
of  this  gi'eat  writ  had  never  before  been  with- 
held from  the  citizen;  and  as  the  exigence  of 
the  times  demanded  immediate  action,  it  was 
of  the  highest  importance  that  the  lawfulness 
of  the  suspension  should  be  established.  It 
was  under  these  circumstances,  which  were 
such  as  to  arrest  the  attention  of  the  country, 
that  this  law  was  passed . "  (Ex  parte  MilUgan, 
4  Wall.,  2, 115;  see  also,  Matter  of  Dunn,  8  Fed. 
Cas.  No.  4171;  Matter  of  Oliver,  17  Wis.,  686.) 

"  It  is  essential  to  the  safety  of  every  Govern- 
ment that  in  a  great  crisis  like  the  one  we  have 
just  passed  through  [civil  war]  there  should  be 
a  power  somewhere  of  suspending  the  writ  of 
habeas  corpus."    (ExparteMilligan,  4Wall.,  2.) 

When  privilege  of  writ  may  be  sus- 
pended.— Under  the  Constitution  the  privilege 

[Clause  3.  Bills  of  attainder  and  ex  post  facto  laws.]^   No  Bill  of  Attainder 
or  ex  post  facto  Law  shall  be  passed. 


oi  the  writ  of  habeas  corpus  may  be  suspended 
only  in  two  cases,  namely,  "rebellion,"  and 
"invasion."  (Matter  of  Keeler,  14  Fed.  Cas. 
No.  7637.) 

Effect  of  suspmilion. — "A  citizen  not  con- 
nected with  the  military  service  and  resident 
in  a  State  where  the  courts  are  open  and  in  the 
proper  exercise  of  their  jurisdiction  can  not, 
even  when  the  privilege  of  the  writ  of  habeas 
corpus  is  suspended,  be  tried,  convicted,  or 
sentenced  otherwise  than  by  the  ordinary 
courts  of  law."  (Ex  parte  Milligan,  4  Wall.,  2; 
but  see  concurring  opinion  of  four  justices  in  this 
case;  see  also  McCall  v.  McDowell,  15  Fed.  Cas. 
No.  8673.) 

"In  the  emergency  of  the  times,  an  imme- 
diate public  investigation  according  to  law  may 
not  be  possible;  and  yet  the  peril  to  the  country 
may  be  too  imminent  to  suffer  such  persons  to 
go  at  large.  Unquestionably,  there  is  then  an 
exigency  which  demands  that  the  Government, 
if  it  should  see  fit,  in  the  exercise  of  a  proper 
discretion,  to  make  arrests,  should  not  be  re- 
quired to  produce  the  person  arrested  in  answer 
to  a  writ  of  habeas  corpus.  The  Constitution 
goes  no  further.  It  does  not  say  that  after  a 
writ  of  habeas  corpus  is  denied  a  citizen,  that 
he  shall  be  tried  otherwise  than  by  the  course 
of  common  law.  If  it  had  intended  tliis  result, 
it  was  easy  by  the  use  of  direct  words  to  have 
accomplished  it."  (Ex  parte  Milligan,  4 
Wall.,  2.) 

A  person  making  an  Ulegal  arrest,  even  when 
the  privilege  of  the  writ  of  habeas  corpus  is 
suspended,  is  Liable  to  damages  in  a  civil  suit 
for  such  arrest  and  to  punishment  in  a  criminal 
prosecution.     (Griffin  v.  Wilcox,  21  Ind.,  372.) 

Effect  of  President's  proclamation  suspend- 
ing privilege  of  writ  is  to  stop  proceedings  upon 
habeas  corpus  although  commenced  prior  to 
date  of  proclamation.  (Matter  of  Dunn,  8  Fed. 
Cas.  No.  4171.) 

As  to  power  of  Congi'ess  to  protect  military 
officers  against  civil  or  criminal  responsibility, 
see  note  to  Article  I,  section  8,  clause  13. 

On  general  subject  of  habeas  corpus,  see  sec- 
tions 751,  et  seq..  Revised  Statutes. 


"A  bill  of  attainder  is  a  legislative  act 
which  intlicts  punishment  without  a  judicial 
trial.  If  the  punishment  be  less  than  death, 
the  act  is  termed  a  bill  of  pains  and  penalties. 
Within  the  meaning  of  the  (Constitution,  bills  of 
attainder  include  bills  of  pains  and  penalties. 
In  these  cases  the  legislative  body,  in  addition 
to  its  legitimate  functions,  exercises  the  powers 
and  office  of  judge;  it  assumes,  in  the  language 
of  the  textbooks,  judicial  magistracy;  it  pro- 
nounces upon  the  guilt  of  the  party  without  any 
of  the  forms  or  safeguards  of  trial;  it  determines 
the  sufficiency  of  the  proofs  produced,  whether 
conformable  to  the  rules  of  e\T.dence  or  other- 
wise; and  it  fixes  the  degree  of  punishment  in 
accordance  with  its  own  notions  of  the  enormity 
oftheoffense."  (Cummingsii.  Missouri,  4  Wall., 
277;  see  also  In  re  Yung  Sing  Hee,  36  Fed. 
Rep.,  437;  In  re  De  Giacomo,  7  Fed.  Cas.  No. 


3747;  Anderson  v.  Baker,  23  Md.,  623;  Drehman 
V.  Stifle,  8  Wall.,  601;  Fletcher  v.  Peck,  6 
Cranch,  138.) 

The  injustice  and  tyranny  wliich  characterize 
ex  post  facto  laws  consist  altogether  in  their  re- 
trospective operation,  which  applies  with  equal 
force,  although  not  exclusively,  to  bills  of  at- 
tainder.    (Ogden  i).  Saunders,  12  Wheat.,  266.) 

A  provision  that  persons  convicted  of  certain 
crimes  shall  not  be  permitted  to  vote  or  hold 
office  is  not  in  the  nature  of  a  bill  of  attainder,  as 
it  requires  conviction  before  the  penalties  are 
made  to  attach.  (Washington v.  State,  75  Ala., 
585.) 

A  federal  statute,  providing  that  deserters 
from  the  military  and  naval  ser\dce  shall  forfeit 
their  rights  of  citizenship  and  the  right  to  be- 
come citizens,  is  not  void  as  a  bill  of  attainder, 
because  it  contemplates  trial  by  a  coiu-t-martial 


73 


Art.  I,  Sec.  9. 


Pt.  1.   THE  CONSTITUTION. 


Ex  Post  Facto  Laws. 


to  enforce  tliis  penalty  as  well  aa  the  other  peiial- 
tiea  for  desertion.  (Got<"heu8  v.  Matlieson,  58 
Barb.  (N.  Y.),  153,  Gl  N.  Y.,425;  see  also  State 
V.  Synioiuls,  57  Maine,  148;  Uolt  v.  Jlolt,  59 
Maine,  4(i4;  Severance  v.  liealv,  50  N.  H.,44S; 
Hiiber  v.  lleily,  53  Pa.  St.,  112;  McCafferty  v. 
Guver,  59  Pa.  St.,  110;  Kurtz  v.  Moffitt,  115 
U.  S.,  501;  and  see  sees.  l!)!l(3  and  1998,  R.  S.) 

Tl\e  following  are  examples  of  statutes  held 
void  aa  bills  of  attainder:  A  federal  statute  pre- 
scribing;: an  oath  that  deponent  had  never  volun- 
tarily borne  arms  ajjainst  the  United  States  or 
^iven  aid  to  its  enemies,  etc.,  as  a  (lualilication 
lor  admission  as  an  attorney  before  the  United 
States  courts  (Ex  jtarte  Garland,  4  Wall.,  333); 
a  similar  reciuirement  as  a  condition  precedent 
to  holding  ofiice  or  practicing  law  or  mini.stry  in 
a  State  (Cumniings  v.  MLssouri,  4  Wall.,  277;  see 
also  In  re  Shorter,  22  Fed.  Cas.  No.  12811);  a 
statute  making  the  nonpayment  of  taxes  during 
the  (,'ivil  War  evidence  of  disloyalty,  and  pro- 
viding for  the  forfeiture  of  lands  without  a  judi- 
cial liearing  (Martin  v.  Snowden,  ISGratt.,  100); 
providing  castration  upon  couA-iction  of  second 
offense ( Davis r.  Berry,  21(5  Fed.  Rep., 413, 419); 
a  statute  excluding  from  the  United  States  Chi- 
nese citizens  (In  re  Yung  Sing  Hee,  36  Fed. 
Rep.,  437;  compai-e  In  re  Chae  Chan  Ping,  36 
Fed.  Rep.,  431).  [A  pro\'ision  that  no  person 
shall  be  civilly  prosecuted  for  any  act  done  by 
virtue  of  militarv  authority  was  held  not  to.be  a 
bill  of  attiiinder.  (Drehman  v.  Stifle,  8  Wall., 
590;  see  also  Clark  v.  Dick,  5  Fed.  Cas.  No. 
2818.)] 

Ex  post  facto  laws. — A  statute  belongs  to 
tills  class  '"which  by  its  necessary  operation 
and  'in  its  relation  to  the  offense,  or  its  conse- 
quences, alters  the  situation  of  the  accused  to 
his  disadvantage.'  *  *  *  Of  course  a  stat- 
ute is  not  of  that  class  unless  it  materially  im- 
pairs the  right  of  the  accused  to  have  the  ques- 
tion of  his  guilt  determined  according  to  the  law 
as  it  was  when  the  offense  was  committed .  And 
therefore  it  is  well  settled  that  the  accused  is 
not  of  right  entitled  to  be  tried  in  the  exact 
mode,  in  all  respects,  that  may  be  prescribed 
for  the  trial  of  criminal  cases  at  the  time  of  the 
commission  of  the  offense  charged  against  Mm. ' ' 
(Thompson  v.  Utah,  170  U.  S.,  343;  see  also 
Duncan  v.  Missouri,  152  U.  S.,  382;  Medley,  Pe- 
titioner, 134  U.  S.,  171.) 

"The  legislature  may  abolish  courts  and  cre- 
ate new  ones,  and  it  may  prescribe  altogether 
different  modes  of  procedure  in  its  discretion, 
though  it  can  not  lawfully,  we  think,  in  so  doing 
dispense  with  any  of  those  substantial  protec- 
tions with  which  the  existing  law  surrounds  the 
person  accused  of  crime."  (Cooley  on  Const. 
Lira.,  quoted  with  approval  in  Thompson  v. 
Utah,  170  U.  S.,  343;  see  also  Kriug  v.  Missouri, 
107  U.  S.,  221.) 

No  one  has  a  vested  right  in  mere  modes  of 
procedure.  Statutes  regulating  procedure,  if 
they  leave  untouched  all  the  substantial  pro- 
tections witli  wliich  existing  law  surrounds  the 
person  accused  of  crime,  are  not  within  tlie  con- 
stitutional inhibition  of  ex  post  facto  laws. 
But  a  statute  which  takes  from  the  accused  a 
substantial  right  given  to  him  by  the  law  in 
force  at  the  time  to  which  liis  guilt  relates  would 
be  ex  post  facto  in  its  natiu-e  and  operation,  and 


legislation  of  that  kind  can  not  be  sustained 
simply  because,  in  a  general  sense,  it  may  be 
sai(l  to  regulate  procedure.  (Thonipsoini.  Utah, 
170  U.  S.,  343;  see  also  Gibson  v.  Mississippi.  162 
U.  S.,  590;  State  v.  Fourchy,  106  La.,  749.) 

"The  difficulty  is  not  so  much  as  to  the  sound- 
ness of  tlie  general  rule  that  an  accused  has  no 
vested  right  in  particular  models  of  ])rocediire,  as 
in  determining  whetlier  particular  statutes  by 
their  operation  take  from  an  accused  any  right 
that  was  regarded  at  the  time  of  the  adoption  of 
tlie  Constitution  as  vital  for  the  protection  of 
life  and  liberty  and  which  he  enjoyed  at  the 
time  of  the  offen.se  charged  against  him." 
(Thompson  v.  Utah,  170  U.  S.,  343.) 

Ex  post  facto  laws  include:  "First,  every  law 
that  makes  an  action  done  before  the  passing 
of  the  law,  and  which  was  innocent  when  done, 
criminal,  and  punishes  such  action.  Second, 
every  law  that  aggravates  a  crime  or  makes  it 
greater  than  it  was  when  committed.  Third, 
every  law  that  changes  the  punishment  and 
inflicts  a  greater  punishment  than  the  law 
annexed  to  the  crime  when  committed. 
Fourth,  every  law  that  alters  the  legal  rules 
of  evidence  and  receives  less  or  different  testi- 
mony than  the  law  required  at  the  time  of  the 
commission  of  the  offense  in  order  to  convict 
the  offender."  (Per  Chase,  J.,  Calder  v.  Bull, 
3  Dall.,  386.) 

The  above  classification  by  Justice  Chase,  al- 
though obiter  dictum,  "has  often  been  repeated 
by  judges  and  text-writers  in  discussing  the 
subject.  Still  it  may  not  be  presumptuous  to 
say  that  doubts  may  be  entertained  whether 
his  foiirth  class  does  not  include  cases  outside 
of  the  prohibition;  whether  every  law  that 
alters  the  legal  rules  of  evidence  and  receives 
different  testimony  than  the  law  required  at 
the  time  of  the  commission  of  the  offense  in 
order  to  convict  the  offender,  is  an  ex  post 
facto  law."  ^  (Moore  y.  State,  43  N.  J.  L.,  216.) 

A  statute  is  not  void  as  ex  post  facto  because 
it  removes  disability  of  witness,  thereby  en- 
larging the  classes  of  persons  who  are  competent 
to  testify  in  criminal  cases.  (Hopt  v.  Utah, 
110  U.  S.,  589.) 

A  statute  authorizing  the  comparison  of  dis- 
puted handwTiting  with  any  wa-iting  proved  to 
be  genuine  is  not  ex  post  facto,  although  ap- 
plicable to  crimes  committed  prior  to  its  enact- 
ment and  altering  the  legal  rules  of  evidence 
in  existence  at  the  time  of  the  commission  of 
the  offense.  (Thompson  v.  Missouri,  171  U.  S., 
380.  This  decision  related  to  a  State  law.  A 
similar  statute  was  passed  by  Congress,  Feb. 
26,  1913,  37  Stat.,  683.) 

"We  are  not  to  be  understood  as  holding  that 
there  may  not  be  such  a  statutory  alteration  of 
the  fundamental  rules  in  criminal  trials  as 
might  bring  the  statute  in  conflict  vnth.  the 
ex  post  facto  clause  of  the  Constitution.  If, 
for  instance,  the  statute  had  taken  from  the 
jury  the  right  to  determine  the  sufficiency  or 
effect  of  the  evidence  which  it  made  admis- 
sible, a  different  question  would  have  been 
presented.  We  mean  now  only  to  adjudge  that 
the  statute  is  to  be  regarded  as  one  merely  regu- 
lating procedure  and  may  be  applied  to  crimes 
committed  prior  to  its  passage  without  impair- 
ing the  siibstantial  guaranties  of  life  and  liberty 


74 


Foreign  Presents. 


PL  1.   THE  CONSTITUTION. 


Art,  I,  Sec.  9. 


58  Barb.  (N.  Y.),  153,  reversed  on  other  grounds, 
61  N.  Y.,  425;  see  also  Kurtz  v.  Moffitt,  115 
U.  S.,  501;  Muqihy  v.  Ramsey,  114  U.  S.,  42; 
and  see  sees.  1996  and  1998,  R.  S.) 

A  law  which  is  not  penal  and  does  not  inter- 
fere with  the  vested  rights  of  individuals  is 
within  the  constitutional  power  of  Congress  and 
is  not  objectionable  as  a  retrospective  law. 
(McNamara  v.  U.  S.,  28  Ct.  Cls.,  416.)  Retro- 
spective laws  which  do  not  impair  the  obliga- 
tion of  contracts  or  partake  of  the  character  of 
ex  post  facto  laws  are  not  condemned  or  for- 
bidden bv  any  part  of  the  Constitution.  (Sat- 
terlee  r.  Matthewson.  2  Pet.,  410.) 

The  constitutional  prohibition  applies  to 
penal  and  criminal  proceedings  and  not  to 
ci^il  proceedings  which  affect  private  rights 
retrospectively.  (Watson  v.  Mercer,  8  Pet.,  ilO; 
In  re  Sawyer,  124  U.  S.,  219;  Locke  ■!).  New 
Orleans,  4  Wall.,  173:  Calder  v.  Bull,  3  Dall., 
393;  DePass  v.  Bidwell,  124  Fed.  Rep.,  623.) 
Proceedings  for  recovery  of  penalties  and  for- 
feitures are  included,  as  well  as  criminal  laws 
and  cases.  (U.  S.  v.  Hughes,  26  Fed.  Cas. 
No.  15416.) 


that  are  secured  to  an  accused  by  the  supreme 
law  of  the  land."  (Thompson  v.  Missouri,  171 
U.  S.,  380.) 

A  statute  providing  that  "in  all  questions 
affecting  the  credibility  of  a  witness  his  general 
moral  character  may  be  given  in  evidence,"  is 
not  ex  post  facto  as  applied  to  trials  for  offenses 
committed  before  its  passage.  (Robinson  v. 
State,  84  Ind.,  453.) 

A  constitutional  provision  that  a  person  con- 
victed of  certain  offenses  should  not  be  per- 
mitted to  hold  office  is  not  ex  post  facto,  because 
it  does  not  take  away  a  legal  right  nor  impose 
any  legal  burden,  one  of  which  is  necessaiy  to 
the  infliction  of  a  penalty;  but  merely  with- 
holds a  constitutional  provision  which  is  grant- 
able  or  revocable  by  the  sovereign  power  of  the 
State  at  pleasure.  (Washington  v.  State,  75 
Ala.,  585;  biU  see  Cummings  v.  Missouri,  4 
Wall.,  277;  Ex  parte  Garland,  4  AValL,  333.) 

Desertion  from  the  military  or  naval  ser\dce 
is  a  continuing  offense,  and  therefore  statutes 
increasing  the  penalties  upon  con\dction  are 
not  ex  post  facto  as  applied  to  one  in  desertion 
at  the  time  such  statutes  were  enacted.  (Huber 
V.  Reily,  53  Pa.  St.,  115;  Gotcheus  v.  Matheson, 

[Clause  4.   Capitation  and  direct  taxes.]  *  Xo  capitation,  or  other  direct, 
Tax  shall  be  laid,  unless  in  Proportion  to  the  Census  or  Enumeration  herein 
before  directed  to  be  taken. 
See  Amendments,  Art.  XVI. 

[Clause  5.  Export  duties.]  ^  Xo  Tax  or  Duty  shall  be  laid  on  Articles 
exported  from  any  State. 

[Clause  6.  Freedom  of  commerce.]  *•  No  Preference  shall  be  given  by  any 
Regulation  of  Commerce  or  Revenue  to  the  Ports  of  one  State  over  those  of 
another:  nor  shall  Vessels  bound  to,  or  from,  one  State,  be  obliged  to  enter, 
clear,  or  pay  Duties  in  another, 

[Clause  7.  Appropriations  and  accounting  of  public  money.]  "^  Xo  IMoney 
shall  be  drawn  from  the  Treasury,  but  in  Consequence  of  Appropriations  made 
by  Law ;  and  a  regular  Statement  and  Account  of  the  Receipts  and  Expenditures 
of  all  public  Money  shall  be  published  from  time  to  time. 

[Clause  8.  Titles  of  nobility  and  gifts  from  foreign  States.]  ^Xo  Title  of 
Nobihty  shall  be  granted  by  the  United  States:  And  no  Person  holdmg  any 
Office  of  Profit  or  Trust  under  them,  shall,  without  the  Consent  of  the  Con- 
gress, accept  of  any  present.  Emolument,  Office,  or  Title,  of  any  kind  what- 
ever, from  any  King,  Prince,  or  foreign  State. 

tion  of  this  clause  of  the  Constitution.     (File 


Acceptance  of  presents  from  foreign 
states,  etc. — The  provision  of  this  clause 
applies  as  well  to  a  titular  prince  as  to  a  reign- 
ing one;  and  a  simple  remembrance  of  courtesy, 
even  if  merely  a  photograph,  falls  under  the 
inclusion  of  "any  present  of  any  kind  what- 
ever."_   (24  Op.  Atty.  Gen.,  116.) 

"This  prohibition  expressly  relates  to  official 
persons,  and  does  not  extend,  under  the  cir- 
ciunstances  outUned,  to  a  department  of  the 
Government  or  to  governmental  institutions." 
(24  Op.  Atty.  Gen.,  116.) 

If  the  present  is  not  to  be  given  by  any  king, 
prince  or  foreign  state,  but  by  the  citizens  of 
Ponta  Delgada,  Azores,  its  acceptance  by  the 
commanding  officer  of  a  naval  vessel  without 
the  consent  of  Congress,  would  not  be  a  viola- 

54641°— 22 6  T6 


9644-43,  Apr.  6,  1918.) 

' '  A  minister  plenipotentiary  from  the  United 
States  to  a  foreign  power  can  not,  without  the 
consent  of  Congress,  accept  a  similar  commis- 
sion from  a  tliird  power;  though  he  is  not  pro- 
hibited from  rendering  a  friendly  8er\dce  to  a 
foreign  Government,  even  that  of  negotiating 
a  treaty,  provided  he  does  not  become  an 
officer  thereof."     (13  Op.  Atty.  Gen.,  537.) 

"The  marshal  of  the  United  States  for  the 
southern  district  of  Florida  can  not  at  the  same 
time  hold  the  office  of  commercial  agent  of 
France."     (6  Op.  Atty.  Gen.,  409  ) 

"The  *  *  *  clause  as  to  the  acceptance 
of  any  emoluments,  title,  or  office  from  foreign 
governments  is  founded  in  a  just  jealousy  of 


Art.  I,  Sec.  10. 


Pt.  1.   THE  CONSTITUTION. 


Limitations  on  States. 


foreiga  iulluencc  of  any  sort.     WTiether,  in  a 

Eractical  soiuse,  it  can  produce  much  effect, 
as  been  thought  doubtful.  A  patriot  will  not 
be  likely  to  be  seduced  from  hiy  duties  to  his 
country  by  the  accei)ting  of  any  title  or  present 
from  a  foreign  government.  An  intriguing  or 
corrupt  a^ent  will  not  be  restrainetl  from  guilty 
machinations  in  the  8er\ace  of  a  foreign  state 
by  such  constitutional  restrictions  *  *  *." 
(Hie  3707,  June  15.  1904,  quoting  Story  on  the 
Constitution,  vol.  2,  pp.  223,  224.) 

"The  reasons  for  the  prohil^ition  in  question 
apply  as  well  to  enlisted  men  in  the  military 
service  as  to  officers,  the  difference  between 
the  cases  of  officers  and  men  in  this  respect 
being  one  of  degree  only;  and  there  may  be 
dou])t  as  to  whether  such  prohibition  was  not 
intended  to  apply  to  all  ])ersons  in  the  service 
of  the  Government,  and  not  to  those  only  who 
are  appointed  to  office  in  one  of  the  modes  men- 
tioned in  Article  II,  section  2,  clause  2." 
(File  3707,  June  15,  1904,  citing  16  Op.  Atty. 
Gen.,  113,  holding  an  enlisted  man  of  the  Army 
to  be  an  "officer"  within  the  meaning  of  section 
750,  Revised  Statutes,  allowing  expenses  in- 
curred bv  witnesses  for  the  Government;  see  also 
27  Op.  Atty.  Gen.,  468,  472;  compare  28  Op. 
Atty.  Gen.,  320.) 

"The  (question  whether  the  provision  of  the 
Constitution  above  quoted  includes  within  its 
terms  any  person  occupying  a  position  of  trust  or 
profit  under  the  United  States,  such  as  an  enlisted 
man  in  the  Navy,  is  not  free  from  doubt.  Tliere 
are  decisions  which  have  given  the  word  'officer' 
a  very  broad  construction  in  other  connections 
*  *  *."  (File  9&44-27,  Jan.  24, 1913;  see  also 
file  7515-158,  Sept.  27,  1917;  file  1098-98,  Aug. 
9,  1918;  but  see  28  Op.  Atty.  Gen.,  320.) 

It  is  proAdded  by  law  that  "hereafter  any 
present,  decoration,  or  other  thing,  which  shall 
be  conferred  or  presented  by  any  foreign  gov- 
ernment to  any  officer  of  the  United  States, 
civil,  naval,  or  military,  shall  be  tendered 
through  the  Department  of  State,  and  not  to  the 
individual  in  person,  but  such  present,  decora- 
tion, or  other  thing  shall  not  be  delivered  by 
the  Department  of  State  unless  so  authorized  by 
act  of  Congress."  (Act  June  31  1881,  sec.  3, 
21  Stat.,  604.)  "The  within-named  medals 
were  tendered  through  the  Department  of 
State,  and  that  department,  which,  under  the 
act  just  cited,  is  charged  with  determining  in 
what  cases  congressional  authority  for  the 
delivery  of  things  presented  by  foreign  govern- 
ments is  necessary,  holds  that  such  authority 

Section  10.  [Clause  1.  States  not  to  make  treaties,  coin  money,  pass 
ex  post  facto  laws,  impair  contracts,  etc.]  ^  No  State  shall  enter  into  any  Treaty, 
Alliance,  or  Confederation;  grant  Letters  of  Marque  and  Reprisal;  coin  Money; 
emit  BUls  of  Credit;  make  any  Thing  but  gold  and  sUver  Coin  a  Tender  in 
Payment  of  Debts;  pass  any  Bill  of  Attainder,  ox  post  facto  Law,  or  Law  im- 
pairing the  Obhgation  of  Contracts,  or  grant  any  Title  of  Nobility. 


is  not  required  in  this  instance,  on  the  ground 
that  enlisted  men  of  the  Navy  and  Marine  Corps 
are  not  officers  of  the  United  States  within  the 
constittitional  i)r()lubition  and  the  act  of  1881 
above  quoted.  The  forwarding  of  the  medals 
to  this  department  for  distribution  constitutes 
a  delivery  thereof  so  far  as  the  Department  of 
State  is  concerned."  (File  3707,  June  15, 
1904,  holding  that  the  medals  may  properly  be 
delivered  by  the  Navy  Department  to  the 
enlisted  men  for  w^hom  they  were  intended. 
See  also,  file  9644-27,  Jan.  24,  1913.) 

"No  decoration  or  other  tiling,  the  accept- 
ance of  which  is  authorized  by  tlus  act,  and  no 
decoration  heretofore  accepted,  or  which  may 
hereafter  be  accepted,  by  consent  of  Congress, 
by  any  officer  of  the  United  States,  from  any 
foreign  government,  shall  be  publicly  shown  or 
exposed  upon  the  person  of  the  officer  so  re- 
ceiving the  same."  (Act  Jan.  31,  1881,  sec.  2, 
21  Stat.,  604.) 

"The  public  wearing  of  medals  presented  by 
foreign  governments  is  not  authorized  by  the 
Navy  Regulations."     (File  3707,  ,Iune  15, 1904.) 

Members  of  the  "military  forces"  of  the 
United  States  serving  in  the  war  with  Geimany 
were  permitted  and  authorized  to  accept  until 
one  year  after  the  war,  decorations  from  certain 
foreign  governments,  and  "to  accept  and  wear 
any  medal  or  decoration  heretofore  bestowed  " 
by  any  of  said  governments,  by  the  Army 
appropriation  act  approved  July  9,  1918  (40 
Stat.,  872).  This  statute  appUee  to  the  Navy 
and  Marine  Corps.  (31  Op.  Atty.  Gen.,  445; 
see  also  id., 452.) 

A  clerk  of  class  4  in  the  Post  Office  Depart- 
ment is  inhibited  by  this  clause  of  the  Constitu- 
tion from  accepting  an  insignia  conferred  by  the 
Gennan  Emperor,  unless  the  consent  of  Con- 
gress be  firat  obtained.  Section  3  of  the  act  of 
January  31,  1881  (21  Stat.,  604),  does  not 
authorize  the  delivery  of  decorations  unless 
authority  therefor  be  first  obtained  by  act  of 
Congress.     (27  Op.  Atty.  Gen.,  219.) 

Acceptance  by  officers  and  enlisted  men  of 
employment  and  compensation  from  the  gov- 
ernment of  Brazil,  the  government  of  Haiti, 
and  the  government  of  the  Dominican  Re- 
public, respectively,  was  authorized  October 
13,  1914  (38  Stat.,  780),  June  12,  1916  (39 
Stat.,  223),  and  February  11,  1918  (40 
Stat.,  437).  See  also  act  of  June  5,  1920  (41 
Stat.  1056),  applicable  to  all  South  American 
Republics. 


Obligation  of  contracts. — "The  United 
States  can  not,  any  more  than  a  State,  interfere 
with  private  rights  except  for  legitimate  gov- 
ernmental purposes.  They  are  not  included 
within  the  Constitutional  prohibition  which 
prevents  States  from  passing  laws  impaii-ing  the 
obligation  of  contracts,  but  equally  with  the 


States  they  are  jjrohibited  from  depriving  per- 
sons or  corporations  of  property  without  due 
process  of  law."  (Sinking P'und  Cases,  99  U.  S., 
700.) 

"It  is  unnecessary  to  discuss  the  question 
whether  Congress  has  unrestricted  power  to  do 
what  the  States  can  not  do  in  the  impairing  of 


76 


Executive  Power. 


Pt.  1.  THE  CONSTITUTION. 


Art.  II,  Sec.  1. 


contract  obligations.  It  is  probable  it  would  be 
held  that  in  some  instances  and  for  some  pur- 
poses it  can.  Such  an  instance  niight  be  the 
enactment  of  a  bankrupt  law,  which  necessarily 
implies  the  impairment  and  even  the  entire  dis- 
charge of  contract  obligations.  It  is  not  im- 
probable, however,  that  an  act  of  Congress  which 
should  provide  for  the  repudiation  of  any  sub- 
stantial part  of  a  valid  contract  would  be  ob- 
noxious to  those  other  provisions  of  the  Federal 
Constitution  which  are  intended  to  protect  the 
citizen  and  his  propertv  against  arbitrary  seiz- 
ure and  confiscation."  '(22  Op.  Atty.  Gen.,  194.) 
"Congi'ess  has  express  power  to  enact  bank- 
rupt laws,  and  we  do  not  say  that  a  law  made  in 
the  execution  of  any  other  express  power,  which 
incidentally  only  impairs  the  obligation  of  a 
contract,  can  be  held  to  be  unconstitutional  for 
that  reason.  But  we  think  it  clear  that  those 
who  framed  and  those  who  adopted  the  Consti- 


tution intended  that  the  spirit  of  this  prohibi- 
tion should  pervade  the  entire  body  of  legisla- 
tion *  *  *.  In  other  words,  we  can  not 
doubt  that  a  law  not  made  in  pursuance  of  an 
express  power,  which  necessarily  and  in  its  dii-ect 
operation  impairs  the  obligation  of  contracts, 
is  inconsistent  with  the  spirit  of  the  Consti- 
tution." (Hepburn  v.  Griswold,  8  Wall.,  623.) 
"Nor  can  it  be  truly  asserted  that  Congress 
may  not,  by  its  action,  indirectly  impair  the 
obligation  of  contracts,  if  by  the  expression  be 
meant  rendering  contracts  fruitless  or  partially 
fruitless.  Directly  it  may,  confessedly  by  pass- 
ing a  bankrupt  act,  embracing  past  as  well  as 
future  transactions  *  *  *.  So  it  may  relieve 
parties  from  their  apparent  obligations  indi- 
rectly, in  a  multitude  of  ways.  It  may  de- 
clare war,  or  even  in  peace  pass  noninter course 
acts,  or  direct  an  embargo."  (Kjiox  v.  Lee,  12 
Wall.,  457.) 


[Clause  2.  States  not  to  lay  imposts  or  duties,  except,  etc.]  ^No  State 
shall,  without  the  Consent  of  the  Congress,  lay  any  Imposts  or  Duties  on  Im- 
ports or  Exports,  except  what  may  be  absolutely  necessary  for  executing  it's 
inspection  Laws:  and  the  net  Produce  of  all  Duties  and  Imposts,  laid  by  any 
State  on  Imports  or  Exports,  shall  be  for  the  Use  of  the  Treasury  of  the  United 
States;  and  aU  such  Laws  shall  be  subject  to  the  Revision  and  Control  of  the 
Congress. 

[Clause  3.  States  not  to  lay  tonnage  duty,  make  compacts,  engage  in 
war,  etc.]  ^No  State  shall,  without  the  Consent  of  Congress,  lay  any  duty  of 
Tonnage,  keep  Troops,  or  Ships  of  War  m  time  of  Peace,  enter  into  any  Agree- 
ment or  Compact  with  another  State,  or  with  a  foreign  Power,  or  engage  in 
War,  unless  actually  invaded,  or  in  such  imminent  Danger  as  will  not  admit 
of  delay. 

ARTICLE  11. 

Section  1.  [Clause  1.  Executive  power  vested  in  President;  terms  of 
President  and  Vice-President.]  ^  The  executive  Power  shall  be  vested  in  a 
President  of  the  United  States  of  America.  He  shall  hold  his  OflB.ce  during 
the  Term  of  four  Years,  and,  together  with  the  Vice-President,  chosen  for  the 
same  Term,  be  elected,  as  follows: 

Covirts  without  power  over  President. — 

"The  executive  power  is  vested  in  a  President, 
and  as  far  as  his  powers  are  derived  from  the 
Constitution  he  is  beyond  the  reach  of  any 
other  department,  except  in  the  mode  pre- 
scribed by  the  Constitution,  through  the  im- 
peaching power."  (Kendall  v.  U.  S.,  12  Pet., 
524.) 

The  courts  are  not  empowered  to  enjoin  the 
President  from  executing  an  act  of  Congress, 
even  though  such  act  had  been  vetoed  by  the 
President  as  unconstitutional  and  had  become 
a  law  without  his  approval.  '  'A  bill  prajdng 
an  injunction  against  the  execution  of  an  act 
of  Congress  by  the  incumbent  of  the  presiden- 
tial office  can  not  be  received,  v/hether  it 
described  him  as  President  or  as  a  citizen  of  a 
State.  The  motion  for  leave  to  file  the  bill  is 
therefore  denied."  (Mississippi  v.  Johnson,  4 
Wall.,  475.) 


"A  subpoena  may  issue  to  the  President  of 
the  United  States  to  compel  his  attendance  as 
a  witness,  and  an  accused  person  is  entitled  to 
it  of  course. "  (U.  S.  v.  Burr,  25  Fed.  Gas.  No. 
14692c?.) 

"A  subpoena  duces  tecum  may  issue  to  the 
President  of  the  United  States,  directing  him 
to  bring  any  paper  of  which  the  party  praying 
it  has  a  right  to  avail  himself  as  testimony." 
(U.  S.  V.  Burr,  25  Fed.  Cas.  No.  14692d) 

"WTiile  a  subpoena  may  be  directed  against 
the  President  to  produce  a  paper,  or  for  some 
other  purpose,  in  case  of  his  refusal  to  obey  the 
subpoena,  the  courts  would  be  without  power 
to  enforce  process. "     (25  Op.  Atty.  Gen.,  326.) 

Subordinate  executive  oflScers. — "The 
President's  duty  in  general  requires  his  super- 
intendence of  the  administration;  yet  this  duty 
can  not  require  of  him  to  become  the  adminis- 
trative officer  of  every  department  and  bureau, 


77 


Art.  II,  Sec.  1. 


Pt.  1.   THE  CONSTITUTION. 


Executive  Power. 


or  to  perform  in  penson  the  numerous  details 
inddeut  to  services  ^vhioll,  nevertheless,  he  is, 
in  a  correct  sense,  by  the  (Vinstitution  and  laws 
required  antl  expected  to  perform  This  can 
not  be,  because  if  it  w  ere  practicable  it  ■would 
be  to  absoib  the  duties  and  responsibilities  of 
the  various  departments  of  the  Govermnent  in 
the  ]>ersonal  action  of  the  one  chief  executive 
oflicer.  It  can  not  be,  for  the  strongest  reason, 
that  it  is  impracticable — nay,  impossible." 
rWilliams  v.  U.  S.,  1  How.,  290;  10  Op.  Atty. 
Gen.,  527.) 

The  heads  of  the  executive  departments, 
familiarly  known  as  Cabinet  officers,  aid  the 
President  "in  the  i>erformauce  of  the  great 
duties  of  his  othce  and  represent  him  in  a 
thousand  acts  to  ■which  it  can  hardly  be  sup- 

Kosed  his  personal  attention  is  called. "    (In  re 
e;\gle,  135  U.  8.,  1.) 

The  Constitution  does  not  specify  the  subor- 
dinate administrative  functionaries  by  whose 
agency  or  counsels  the  details  of  public  business 
are  to  be  transacted.  It  recognizes  the  exist- 
ence of  such  official  agents  and  advisers  in 
.oajdng  that  the  President  "may  require  the 
opinion,  in  ■wTiting,  of  the  principal  officer  of 
each  of  the  executive  departments  upon  any 
subject  relating  to  the  duties  of  their  respective 
offices"  (Art.  II,  sec.  2,  clause  1);  and  these 
officers  are  again  recognized  by  the  Constitu- 
tion in  tlie  clause  wliich  vests  the  appointment 
of  certain  inferior  officers  "in  the  heads  of 
departments"  (Art.  II,  sec.  2,  clause  2),  and 
it  leaves  the  number  and  organization  of  those 
departments  to  be  determined  by  Congress. 
(6  Op.  Atty.  Gen.,  326;  see  also  note  to  sec.  158, 

'•The  President  acts  andspeaks  through 
the  heads  of  the  departments,  and  the  acts 
of  the  head  of  an  executive  department  must 
be  piesumed  to  be  by  the  direction  of  the  Presi- 
dent. If  the  surrounding  circumstances  show 
that  the  act  was  that  of  the  Secietary  alone, 
the  presumption  mav  be  othenvise."  (Weller 
r.  if.  S.,  41  Ct.  Cls.;;324.)  So  also,  where  the 
act  to  be  done  is  judicial  in  character,  such  as 
the  approval  of  the  sentence  of  a  court-martial, 
the  personal  judgment  of  the  President  is  re- 
quired, and  can  not  be  delegated  to  the  head 
of  a  department.  (Runkle  v.  U.  S.,  122  U.  S., 
543,  explained,  U.  S.  v.  Fletcher,  148  U.  S.,86; 
Ide  V.  U.  S.,  25  Ct.  Cls.,  407,  150  U.  S.,  517; 
see  also  note  to  sec.  158,  B.  S.) 

The  order  of  the  Secretary  of  War  is  the  order 
of  the  President,  -within  the  terms  of  a  statute 
providing  that  certain  officers  of  the  Army 
should  not  perform  any  duties  bejond  the  line 
of  their  immediate  profession  "except  by  the 
special  order  of  the  President."  (9  Op.  Atty. 
Gen.,  465.) 

"By  the  Constitution  of  the  United  States  the 
President  is  invested  with  certain  important 
political  powers,  in  the  exercise  of  which  he  is 
to  use  his  own  discretion,  and  is  accountable 
only  to  his  country  in  his  political  character, 
and  to  his  own  conscience.  To  aid  him  in  the 
performance  of  these  duties  he  is  authorized 
to  appoint  certain  officers  who  act  by  his  au- 
thority and  in  conformity  with  his  orders.  In 
eucl)  cases  their  acts  are  his  acts;  and  whatever 
opinion  may  be  entertained  of  the  manner  in 
■which  executive  discretion  may  be  used,  still 


there  exists  and  can  exist  no  power  to  control 
that  discretion.  The  subjects  are  political. 
They  re.<*pect  the  Nation,  not  individual  rights, 
and,  being  intrusted  to  the  executive,  the  de- 
cision of  the  executive  is  conclusive.  The 
application  of  this  remark  will  be  perceived  by 
adverting  to  tlie  act  of  Congiess  for  establishing 
the  Department  of  Foreign  Affairs  [now  De- 
partment of  State].  This  officerj  as  his  duties 
were  prescribed  by  that  act,  is  to  conform 
precisely  to  the  will  of  the  President.  He  is 
the  mere  organ  by  whom  that  will  is  to  be  com- 
municated. The  acts  of  such  an  officer,  as  an 
officer,  can  never  be  examined  by  the  courts." 
(Marbury  v.  Madison,  1  Cranch,  137.) 

"It  is  the  general  theory  of  departmental 
administration  that  the  heads  of  the  executive 
departments  are  the  executors  of  the  will  of 
the  President."    (10  Op.  Atty.  Gen.,  527.) 

"There  are  certain  political  duties  imposed 
upon  many  officers  in  the  executive  depart- 
ment, the  discharge  of  wliich  is  uuder  the  direc- 
tion of  the  President.  But  it  would  be  an 
alarming  doctrine  that  Congress  can  not  impose 
upon  any  executive  officer  any  duty  they  may 
think  proper,  which  is  not  repugnant  to  any 
rights  secured  and  protected  by  the  Constitu- 
tion; and  in  such  cases  the  duty  and  responsi- 
bility grow  out  of  and  are  subject  to  the  control 
of  law  and  not  the  dii-ection  of  the  President. 
And  tliis  is  emphatically  the  case  where  the 
duty  enjoined  is  of  a  mere  ministerial  cliar- 
acter."     (Kendall  v.  U.  S.,  12  Pet.,  524.) 

Legal  responsibility  of  execu'tive  offi- 
cers.— "If  one  of  the  heads  of  departments 
commits  any  illegal  act,  uuder  color  of  office,  by 
which  an  individual  sustains  an  injury,  it  can 
not  be  pretended  that  his  office  alone  exempts 
him  from  being  sued  in  the  ordinary  mode  of 
proceeding  and  being  compelled  to  obey  the 
judgment  of  the  law."  (Marbury  v.  Madison, 
1  Cranch,  137.) 

"The  same  general  considerations  of  public 
policy  and  convenience  which  demand  for 
judges  of  courts  of  superior  jurisdiction  immu- 
nity from  ci^•il  suits  for  damages  arising  from 
acts  done  by  them  in  the  course  of  the  perform- 
ance of  their  j  udicial  functions  apply  to  a  large 
extent  to  official  communications  made  by 
heads  of  executive  departments  Avhen  engaged 
in  the  discharge  of  duties  imposed  upon  them 
by  law.  The  interests  of  the  people  require 
that  due  protection  be  accorded  to  them  in 
respect  of  their  official  acts.  As  in  the  case  of  a 
judicial  officer,  we  recognize  a  distinction  be- 
tween action  taken  by  the  head  of  a  department 
in  reference  to  matters  which  are  manifestly  or 
palpably  beyond  his  authority  and  action  hav- 
ing more  or  less  connection  -with  the  general 
matters  committed  by  law  to  his  control  or  super- 
vision. *  *  *  Personal  motives  can  not  be 
imputed  to  duly  authorized  official  conduct.  In 
exercising  the  functions  of  his  office  the  head  of 
an  executive  department  keeping  within  the 
limits  of  his  authority  should  not  be  under  an  ap- 
prehension that  the  motiA'es  that  control  his  offi- 
cial conduct  may  at  any  time  become  the  sub- 
ject of  inquiry  in  a  civil  suit  for  damages." 
(Spalding  v.  Vilas,  161  U.  S.,  483.) 

"A  public  officer  is  not  liable  to  an  action  if 
he  falls  into  error  in  a  case  where  the  act  to  be 
done  is  not  merely  a  ministerial  one  but  is  one 


78 


Election  of  President. 


Pt.  1.   THE  CONSTITUTION. 


Art.  II,  Sec.  1. 


in  relation  to  which  it  is  his  duty  to  exercise 
judgment  and  discretion,  even  although  an  indi- 
vidual may  suffer  by  liis  mistake.  A  contrary 
principle  would,  indeed,  be  pregnant  witli  the 
greatest  mischiefs."  (Kendall  v.  Stokes,  3 
How.,  87.  See  also  note  to  Art.  I.,  sec.  8, 
clause  13,  "Civil  responsibility  of  persons  in 
military  service.") 

Liability  of  Govemment  for  acts  of 
executive  oflicers. — "No  govemment  has 
ever  held  itself  liable  to  iiidi\iduals  for  the  mis- 
feasance, laches,  or  unauthorized  exercise  of 
power  by  its  officers  and  agents.  It  does  not 
undertake  to  guarantee  to  any  person  the  fidel- 
ity of  the  officers  whom  it  employs,  since  that 
would  involve  it  in  all  its  operations  in  endless 
embarrassments  and  difficulties  and  losses 
which  would  be  subversive  of  the  public  inter- 
ests." (Gibbons  v.  U.  S.,-  8  Wall.,  269.  See 
note  to  sec.  236,  R.  S.;  see  also  note  to  Art.  I, 
sec.  8,  clause  13,  "  Congress  may  protect  officers 
against  civil  or  criminal  responsibility.") 

Mandamus  against  heads  of  depart- 
ments.— ' '  1 1  is  not  by  the  office  of  the  person  to 
whom  the  writ  is  directed,  but  the  nature  of  the 
thing  to  be  done,  that  the  propriety  or  impropri- 
ety of  issuing  a  mandamus  is  to  be  determined. 
Where  the  head  of  a  department  acts  in  a  case  in 
which  executive  discretion  is  to  be  exercised, 
in  which  he  is  the  mere  organ  of  the  executive 
will,  it  is  again  repeated  that  any  application  to 
a  court  to  control  in  any  respect  his  conduct 
would  be  rejected  without  hesitation.  But 
where  he  is  directed  by  law  to  do  a  certain  act 
affecting  the  absolute  rights  of  individuals,  in 
the  performance  of  which  h(  is  not  placed  under 
the  particular  direction  of  the  President  and  the 
perfonnance  of  which  the  President  can  not  law- 
fully forbid,  and  therefore  is  never  presumed  to 
have  forbidden,  as,  for  example,  to  record  a  com- 
mission or  a  patent  for  land  which  has  received 
all  the  legal  solemnities,  or  to  give  a  copy  of 
some  record ;  in  such  cases  it  is  not  perceived  on 
what  grounds  the  courts  of  the  country  are  fur- 
ther excused  from  giving  judgment  that  right  be 
done  to  an  injured  individual  than  if  the  same 
services  were  to  be  performed  by  a  person  not 
the  head  of  a  department. ' '  (Marbury  v.  Madi- 
son, 1  Crench,  137.  See  also  Gaines  v.  Thomp- 
son, 7  Wall.,  347;  Kendall  v.  U.  S.,  12 Pet.,  524; 
U.  S.  V.  Schurz,  102  U.  S.,  378;  Georgia -y.  Stan- 
ton, 6  Wall.,  50;  Riverside  Oil  Co.  v.  Hitchcock, 
190  U.  S.,  316;  Bates,  etc.,  Co.  v.  Payne,  194 
U.  S.,  106;  Marquez  v.  Frisbie,  101  U.  S.,  473; 
U.  S.  V.  Black,  128  U.  S.,  40;  U.  S.  v.  Windom, 
137  U.  S.,636;  Boyntoni;.  Blaine,  139U.  S.,  306; 
Dudley  v.  James,  83  Fed.  Rep.,  349;  Taylor  v. 
Kercheval,  82  Fed.  Rep.,  497;  Brown  v.  Root, 
18  App.  D.  C,  239.  And  see  note  to  sec.  236, 
R.  S.,  "Mandamus  to  compel  pajTnents"  and 
note  to  sec.  417,  R.  S.) 

A  State  court  has  no  power  to  issue  a  writ  of 
mandamus  to  a  Federal  officer.  (See  McClung 
V.  Silliman,  6  Wheat.,  598;  Kendall  v.  U.  S.,  12 
Pet.,  524;  U.  S.  v.  Schurz,  102  U.  S.,  378.) 


Where  a  subordinate  officer  refuses  to  obey 
the  order  of  the  head  of  a  department,  any  per- 
son aggrieved  thereby  may  obtain  a  mandamus 
to  enforce  obedience  by  such  subordinate. 
(U.  S.  V.  Black,  128  U.  S.,  50;  see  also  Knight  y. 
U.  S.  Land  Assn.,  142  U.  S.,  161.) 

Subpoena  to  head  of  department. — • 
In  the  absence  of  specilic  authority  on  the  sub- 
ject, I  am  inclined  to  think  that  you  are  not 
legally  bound  to  appear  and  testify  in  obedience 
to  a  subpoena  of  a  court.  This  question,  how- 
ever, does  not  actually  arise  upon  the  facts 
which  you  submit,  and  is  therefore  at  present 
hjTJothetical.  Yet  it  is  to  be  remembered  that 
Attorney  General  Lincoln  saw  fit  to  respond  to  a 
subpoena  to  testify  as  a  witness  by  appearance 
in  court  for  that  purpose.  I  would  suggest  that 
in  this  instance,  inaFmuch  as  it  is  purposed  to 
take  the  testimony  by  commission,  and  you  are 
thus  not  reqtiired  to  appear  in  court,  but  before 
a  referee  or  commissioner,  an  arrangement  might 
readily  be  made  which  would  better  comport 
with  the  dignity  of  your  office,  as  the  head  of  an 
executive  department  of  the  Government, 
whereby  such  testimony  as  you  should  deem 
proper  and  advisable  to  give  could  be  taken  at 
the  Department  of  Commerce  and  Labor. ' '  (25 
Op.  Atty.  Gen.,  326.  In  this  connection,  see 
file  26276-173,  May  12,  1917,  and  see  note  to 
sec.  871,  R.  S.) 

Appeals  to  President  and  heads  of  de- 
partments.— It  is  competent  for  Congress  to 
give  linality  to  the  determination  of  subordinate 
administrative  officers,  provided  due  process  of 
law,  that  is,  notice  and  a  hearing,  is  provided. 
(Orchard  v.  Alexander,  157  U.  S.,  372.)  Where 
Congress  does  not  do  this,  the  head  of  a  depart- 
ment may  change  the  erroneous  decision  of  a 
subordinate  (U.  S.  v.  Cobb,  11  Fed.  Rep.,  76); 
and  appeals  may  be  taken  to  the  head  of  the 
department  because  of  his  supervisory  powers 
over  the  whole  business  of  the  department. 
(Knight  t'.  L .  S.  Land  Assn.,  142  U.  S.,  161.)  In 
such  cases  the  appeal  should  be  to  the  head  of 
the  department  and  not  to  the  President.  (10 
Op.  Atty.  Gen.,  526.) 

As  a  general  rule,  no  appeal  lies  to  the  Presi- 
dent from  the  head  of  a  department,  whose  acts 
are  presumed  to  be  the  acts  of  the  President 
himself.  (9  Op.  Atty.  Gen.,  462.)  However, 
in  the  naval  service  appeals  may  be  taken  to  the 
President  from  the  orders  or  decisions  of  the 
Secretary  of  the  Navy.  (Art.  5323,  Naval  In- 
etnictions,  1913.) 

*'  You  have  often  declared  that  no  appeal  from 
the  head  of  any  department  lies  to  you.  Such 
appeals  ai*e  irregular,  for  reasons  which  have 
often  been  given  by  this  office  and  which  need 
not  now  be  repeated.  An  official  act  done  by 
the  Secretary  of  War  is  your  act,  and  a  demand 
made  upon  you  to  reverse  it  is  no  more  than  a 
remonstrance  addressed  to  yourself  against 
yourself. ' '  (Attorney  General  to  the  President, 
9  Op.  Atty.  Gen.,  463.) 


[Clause  2.  Electors  of  President  and  Vice-President.]  -  Each  State  shall 
appoint,  in  such  Manner  as  the  Legislature  thereof  may  direct,  a  Number  of 
Electors,  equal  to  the  whole  Number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress:  but  no  Senator  or  Represent- 


79 


Art.  II,  Sec.  1.  Pt.  1.   THE  CONSTITUTION.    Compensation  of  President. 

ative,  or  Person  holding  an  Office  of  Trust  or  Profit  under  the  United  States, 
shall  bo  appointed  an  Elector. 

The  Electors  shall  meet  in  their  respective  States,  and  vote  by  Ballot  for 
two  persons,  of  whom  one  at  least  shall  not  be  an  Inhabitant  of  the  same 
State  with  themselves.  And  they  shall  make  a  List  of  aU  the  Persons  voted 
for,  and  of  the  Number  of  Votes  for  each;  which  List  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  Seat  of  the  Government  of  the  United 
States,  directed  to  the  President  of  the  Senate.  The  President  of  the  Senate 
shall,  in  the  Presence  of  the  Senate  and  House  of  Representatives,  open  all 
the  Certificates,  and  the  Votes  shall  then  be  comited.  The  Person  having  the 
greatest  Number  of  Votes  shall  be  the  President,  if  such  Number  be  a  Majority 
of  the  whole  Number  of  Electors  appointed;  and  if  there  be  more  than  one 
who  have  such  Majority,  and  have  an  equal  Number  of  Votes,  then  the  House 
of  Representatives  shall  immediately  chuse  by  BaUot  one  of  them  for  Presi- 
dent; and  if  no  Person  have  a  Majority,  then  from  the  five  highest  on  the  List 
the  said  House  shaU  in  fike  Manner  chuse  the  President.  But  in  chusing  the 
President,  the  Votes  shall  be  taken  by  States,  the  Representation  from  each 
State  havmg  one  Vote;  A  quorum  for  this  Purpose  shall  consist  of  a  Member  or 
Members  from  two-thirds  of  the  States,  and  a  Majority  of  aU  the  States  shall 
be  necessary  to  a  Choice.  In  every  Case,  after  the  Choice  of  the  President, 
the  Person  having  the  greatest  Number  of  Votes  of  the  Electors  shall  be  the 
Vice  President.  But  if  there  should  remam  two  or  more  who  have  equal 
Votes,  the  Senate  shall  chuse  from  them  by  BaUot  the  Vice-President. 

This  clause  has  been  superseded  by  the  twelfth  amendment. 

[Clause  3.  Time  of  choosing  electors,  and  voting  by.]  ^  The  Congress  may 
determine  the  Time  of  chusing  the  Electors,  and  the  Day  on  which  they  shall 
give  their  Votes;  which  Day  shall  be  the  same  throughout  the  United  States. 

[Clause  4.  Qualifications  of  President.]  *  No  person  except  a  natural  born 
Citizen,  or  a  Citizen  of  the  United  States,  at  the  time  of  the  Adoption  of  this 
Constitution,  shall  be  eligible  to  the  Office  of  President;  neither  shall  any 
Person  be  eligible  to  that  Office  who  shall  not  have  attained  to  the  Age  of 
thirty-five  Years,  and  been  fourteen  Years  a  Resident  within  the  United  States. 

[Clause  5.  Succession  to  duties  of  Presidency.]  ^  In  Case  of  the  Removal 
of  the  President  from  Office,  or  of  his  Death,  Resignation,  or  Inabihty  to  dis- 
charge the  Powers  and  Duties  of  the  said  Office,  the  same  shall  devolve  on 
the  Vice  President,  and  the  Congress  may  by  Law  provide  for  the  Case  of 
Removal,  Death,  Resignation  or  Inability,  both  of  the  President  and  Vice 
President,  declaring  what  Officer  shall  then  act  as  President,  and  such  Officer 
shall  act  accordingly,  until  the  Disabihty  be  removed,  or  a  President  shall  be 
elected. 

Succession  to  duties  of  President  is  provided  for  by  act  of  January  19,  1886  (24  Stat.,  1). 

[Clause  6.  Compensation  of  President.]  '  The  President  shall,  at  stated 
Times,  receive  for  his  Services,  a  Compensation,  which  shall  neither  be  en- 
creased  nor  diminished  during  the  Period  for  which  he  shall  have  been  elected, 
and  he  shall  not  receive  withm  that  Period  any  other  Emolument  from  the 
United  States,  or  any  of  them. 

80 


Coininander  in  Chief. 


Pt.  1.   THE  CONSTITUTION. 


Art.  II,  Sec.  2. 


[Clause  7.  Oath  of  President.]  ^  Before  he  enter  on  the  Execution  of  his 
Office,  he  shall  take  the  following  Oath  or  Affirmation: — "I  do  solenmly  swear 
(or  affirm)  that  I  will  faithfully  execute  the  Office  of  President  of  the  United 
States,  and  will  to  the  best  of  my  Ability,  preserve,  protect  and  defend  the 
Constitution  of  the  United  States." 

Section  2.  [Clause  1.  Commander  in  Chief;  authority  over  heads  of 
departments ;  pardoning  power.]  ^  The  President  shall  be  Commander  in  Chief 
of  the  Army  and  Navy  of  the  United  States,  and  of  the  IVIilitia  of  the  several 
States,  when  called  into  the  actual  Service  of  the  United  States;  he  may  require 
the  Opinion,  m  wi-iting,  of  the  principal  Officer  in  each  of  the  executive  Depart- 
ments, upon  any  subject  relating  to  the  Duties  of  their  respective  Offices,  and 
he  shall  have  Power  to  grant  Reprieves  and  Pardons  for  Offenses  against  the 
United  States,  except  in  Cases  of  Impeachment. 


I.  Powers  of  Commander  in  Chief. 
II.  Executive  Departments. 
III.  Power  to  Pardon  Offenses  Against 
United  States. 


I.  Powers  of  Commander  in  Chief. 

Powers  of  Congress  and  of  the  Presi- 
dent.— "CongreBS  has  the  power  not  only  to 
raise  and  support  and  govern  armies,  but  to 
declare  war.  It  has,  therefore,  the  power  to 
provide  by  law  for  carr^dng  on  war.  This 
power  necessarily  extends  to  all  legislation 
essential  to  the  prosecution  of  war  with  vigor 
and  success,  except  such  as  interferes  with  the 
command  of  the  forces  and  the  conduct  of  cam- 
paigns. That  power  and  duty  belong  to  the 
President  as  Commander  in  Chief.  _  Both  these 
powers  are  derived  from  the  Constitution,  but 
neither  is  defined  by  that  instrument.  Their 
extent  must  be  determined  by  their  nature  and 
by  the  principles  of  our  institutions.  The 
power  to  make  the  necessary  laws  is  in  Congress; 
the  power  to  execute  in  the  President.  Both 
powers  imply  many  subordinate  and  auxiliary 
powers.  Each  includes  all  authority  essential 
to  its  due  exercise.  But  neither  can  the  Presi- 
dent in  war  more  than  in  peace  intrude  upon 
the  proper  authority  of  Congress,  nor  Congress 
upon  the  proper  authority  of  the  President. 
Both  are  servants  of  the  people,  whose  will  is 
expressed  in  the  fundamental  law."  (Ex  parte 
Milligan,  4  Wall. ,  139 ;  concurring  opinion  of  four 
justices.) 

"Congress  may  increase  the  Army,  or  reduce 
the  Army,  or  abolish  it  altogether;  but  so  long 
as  we  have  a  military  force,  Congress  can  not 
take  away  from  the  President  the  supreme  com- 
mand. It  is  true  that  the  Constitution  has  con- 
ferred upon  Congress  the  exclusive  power  'to 
make  rules  for  the  government  and  regulation 
of  the  land  and  naval  forces';  but  the  two 
powers  are  distinct;  neither  can  trench  upon 
the  other;  the  President  can  not,  under  the 
disguise  of  military  orders,  invade  the  legislative 
regulations  by  which  he,  in  conmion  with  the 
Army,  must  be  governed;  and  Congress  cannot, 
in  the  disguise  of  'rules  for  the  government'  of 
the  Army,  impair  the  authority  of  the  President 
as  Commander  in  Chief."     (Swaim  v.  U.  S.,  28 


Ct.  Cls.,  173,  221;  affirmed,  165  U.  S.,  553;  28 
Op.  Atty.  Gen.,  274. 

"No  act  of  Congress,  no  act  even  of  the  Presi- 
dent himself,  can,  by  constitutional  possibility, 
authorize  or  create  any  military  officer  not  sub- 
ordinate to  the  President."  (7  Op.  Atty.  Gen., 
465.) 

An  appropriation  under  the  War  Department 
was  made  "to  be  expended  according  to  the 
plans  and  estimates  of  Capt.  Meigs  and  under 
his  superintendence:  Provided,  That  the  office 
of  engineer  of  the  Potomac  waterworks  is  hereby 
abolished,  and  its  duties  shall  hereafter  be  dis- 
charged by  the  chief  engineer  of  the  Washington 
Aqueduct."  In  answer  to  the  contention  that 
this  appropriation  was  mandatory  upon  the 
President  as  to  the  character  of  duties  to  be 
performed  by  Capt.  Meigs  in  connection  with 
its  expenditure,  the  Attorney  General  said: 
"As  Commander  in  Chief  of  the  Army  it  is  your 
right  to  decide,  according  to  your  own  judg- 
ment, what  officer  shall  perform  any  particular 
duty,  and  as  the  supreme  executive  magistrate 
you  have  power  of  appointment.  Congress 
could  not,  if  it  would,  takeaway  from  the  Presi- 
dent or  in  anywise  diminish  the  authority  con- 
ferred upon  him  by  the  Constitution.  This 
clause  of  the  appropriation  bill  was  not  intended 
to  appoint  Capt.  Meigs  chief  engineer  of  the 
aqueduct,  nor  was  it  meant  to  interfere  with 
your  authority  over  him  or  any  other  of  your 
military  subordinates.  *  *  *  If  Congress 
had  really  intended  to  make  him  independent 
of  you,  that  purpose  could  not  be  accomplished 
in  this  indirect  manner  any  more  than  if  it  was 
attempted  directly.  Congress  is  vested  with 
legislative  power;  the  authority  of  the  Presi- 
dent is  executive.  Neither  has  a  right  to  inter- 
fere with  the  functions  of  the  other.  Every 
law  is  to  be  carried  out  so  far  forth  as  is  consistent 
with  the  Constitution  and  no  further.  *  *  * 
You  are  therefore  entirely  justified  in  treating 
this  condition  (if  it  be  a  condition)  as  if  the 
paper  on  which  it  is  written  were  blank."  (9 
Op.  Atty.  Gen.,  462.) 

"The  first  aspect  in  which  this  clause  [see 
preceding  paragraph]  presented  itself  to  my 
mind  was  that  it  interfered  with  the  right  of  the 
President  to  be  'Commander  in  Chief  of  the 
Army  and  NaA-y  of  the  United  States.'  If  this 
had  really  been  the  case  there  would  have  been 
an  end  to  the  question.     Upon  further  examina- 


81 


Art.  II,  Sec.  2. 


Pt.  1.   THE  CONSTITUTION. 


Commander  in  Chief. 


tion  I  deemed  it  impossible  that  Oongresa  could 
have  uitoiuled  to  interfere  with  the  clour  rij^ht 
of  the  Prosidojit  to  command  tlio  Army  and  to 
order  its  officers  to  any  duty  he  might  deem  most 
expedient  for  the  public  interest.  If  they  could 
withdraw  an  officer  from  the  command  of  the 
President  and  select  him  for  the  performance  of 
an  executive  duty,  they  miglit  upon  tlie  same 
principle  annex  to  an  appropriation  to  carry  on 
a  war  a  condition  requiring  it  not  to  be  u.sod  for 
the  defense  of  the  country  unless  a  particular 
person  of  its  own  selection  should  command  tlie 
Army.  It  was  impossible  that  (\ingross  could 
have  had  sucli  an  intention,  aaid  therefore, 
according  to  my  construction  of  the  clause  in 
question,  it  merely  designated  Capt.  Meigs  as 
its  preference  for  the  work,  without  intending 
to  deprive  the  President  of  the  power  to  order 
him  to  any  other  Army  duty  for  the  performance 
of  which  he  might  consider  him  better  adapted. 

*  *  *  Under  these  circumstances  I  have 
deemed  it  but  fair  to  inform  Congress  that 
whilst  I  do  not  consider  the  bill  unconstitu- 
tional, this  is  only  because,  in  my  opinion, 
Congress  did  not  intend  by  the  kuiguage  which 
they  have  employed  to  interfere  ^vith  my  abso- 
lute authority  to  order  Capt.  Meigs  to  any  other 
service  I  might  deem  expedient.  My  perfect 
right  still  remains,  notwithstanding  the  clause, 
to  send  him  away  from  Wafihington  to  any  part 
of  the  Union  to  superintend  the  erection  of  a 
fortification   or  any   other  appropriate  duty. 

*  *  *  It  ia  not  improbable  that  another 
question  of  grave  importance  may  arise  out  of 
this  clause.  Is  tlie  appropriation  conditional 
and  will  it  fall  pro^-ided  I  do  not  deem  it  proper 
that  it  shall  be  expended  under  the  superin- 
tendence of  ('apt.  Meigs?  *  ■*  *  I  desire  to 
express  no  opinion  upon  the  subject.  Should 
the  question  ever  arise,  it  shall  have  my  serious 
consideration."  (Messages  and  Papers  of  the 
Presidents,  vol.  5,  p.  597.  As  to  invalidity  of  the 
condition  in  this  case,  see  Attorney  General's 
opinion  quoted  in  preceding  paragraph.) 

An  appropriation  was  made  for  the  support 
and  maintenance  of  the  Marine  Corps,  with  a 
condition  attached  that  "no  part  of  the  appro- 
priation herein  made  for  the  Marine  Corps  shall 
be  expended  for  the  purposes  for  which  said 
appropriations  are  made  unless  officers  and 
enUsted  men  shall  serve  as  heretofore  on  board 
all  battleships  and  armored  cruisers,  and  also 
upon  such  other  vessels  of  the  Navy  as  the  Presi- 
dent may  direct,  in  detachments  of  not  less 
than  eight  per  centum  of  the  strength  of  the 
enlisted  men  of  the  Navy  on  said  vessels."  It 
was  held  by  the  Attorney  General  [without 
citing  autlioritics]  that  the  condition  attached 
to  this  appiopriation  was  valid  and  constitu- 
tional, and  tliat  if  the  President  as  Commander 
in  Chief  desired  to  employ  the  Marine  Corps  he 
must  comply  with  the  condition  expressed. 
"Inasmuch  as  Congress  has  power  to  create  or 
not  to  create,  as  it  sliall  deem  expedient,  a 
marine  corps,  it  has  power  to  create  a  marine 
corps,  make  appropriation  for  its  pay,  but  pro- 
vide that  such  appropriation  shall  not  be  avail- 
able unless  the  Alanne  Corps  be  employed  in 
some  designated  way."  (27  Op.  Atty.  Gen., 
259.) 

When  Congress  created  the  office  of  adjutant 
and  inspector  of  the  Marine  Corps,  without  speci- 


fying its  duties  or  where  they  should  be  per- 
formed, it  was  intended  that  the  office  should 
l)e  clothed  witii  tlie  functions  and  duties  which 
by  established  cuotom  had  been  performed  by 
such  lui  officer  in  a  miliUiry  8er\ace.  The  duties 
of  an  adjutant  are  such  as  rerjuire  that  they  be 
performed  at  head(|uarters  of  his  organization. 
Accordingly,  a  regulation  approved  by  tlie 
President,  purporting  to  authorize  or  permit  the 
detail  of  the  adjutant  and  inspector  of  the 
Marine  Corps  to  duty  away  from  headquarters, 
ajid  placing  the  office  at  headquarters  in  charge 
of  a  subordinate  officer  of  the  adjutant  and 
inspector's  department,  is  contrary'  to  law  and 
of  no  effect.  The  President  may  have  the  right 
to  detail  this  officer  temporarily  away  from  head- 
quarters, but  this  can  not  be  established  as  a 
permanent  system.  (30  Op.  Atty.  Gen.,  234.) 
fin  this  case  it  had  previously  been  held  by  the 
Navy  Department  tiiat  the  law  did  not  specify 
that  the  adjutant  and  inspector  of  the  Marine 
Corps  should  be  permanently  stationed  at 
headquarters;  and,  follo\\Txig  the  Meigs  case  and 
others  above  cited,  that  Congress  was  not  em- 
powered to  limit  the  authority  of  the  President 
m  this  respect;  and  accordingly  that  the  matter 
was  properly  a  subject  for  regulation  by  the 
President.     File  26836-7:35,  Feb.  13,  1913.] 

"It  ia  *  *  *  no  degradation  of  the  posi- 
tion of  the  President  to  say,  through  the  forms 
of  judicial  construction  in  passing  on  his  execu- 
tive acts  with  reference  to  the  retired  list,  that 
his  power  is  regulated  alone  by  acts  of  Congress 
*  *  *.  The  retired  list  is  of  comparatively 
recent  origin;  and  for  years  the  Army  endured 
through  peace  and  survived  in  war,  efficient  in 
the  hands  of  the  President  for  the  maintenance 
of  the  national  honor,  and  the  due  enforcement 
of  the  law,  without  the  existence  of  the  retired 
list,  80  the  regulation  of  that  department  of  the 
service  can  in  no  wise  interfere  with  the  con- 
stitutional right  and  power  of  the  President  as 
Commander  in  Chief  of  the  military  forces  of 
the  United  States.  Wliile  the  President  is 
made  Commander  in  Chief  by  the  Constitution, 
Congress  have  the  right  to  legislate  for  the  Army, 
not  impairing  his  efficiency  as  such  commander 
in  chief,  and  when  a  law  is  passed  for  the  regu- 
lation of  the  Army,  having  that  constitutional 
qualification,  he  becomes  as  to  that  law  an 
executive  officer,  and  is  limited  in  the  discharge 
of  his  duty  by  the  statute.  "  (McBlair  v.  U.  S., 
19  Ct.  Cls.,  540,  541.) 

"The  power  of  the  Executive  to  establish 
rules  and  regulations  for  the  government  of 
the  Army,  is  undoubted."  (U.  S.  v.  EUason, 
16  Pet.,  291.) 

Army  regulations  have  the  force  of  law 
"when  founded  on  the  President's  constitu- 
tional powers  as  Commander  in  Chief  of  the 
Army.'"'     (In  re  Smith,  23  Ct.  Cls.,  459.) 

For  other  cases,  see  Article  I,  section  8, 
clause  14;  see  also  note  to  sections  161  and 
1547,  Revised  Statutes. 

Power  of  President  over  subordinates. — 
"A  military  ofiicer  can  not  be  invested  with 
greater  authority  by  Congress  than  the  Com- 
mander in  Chief,  and  a  power  of  command 
deA'olved  by  statute  on  an  officer  of  the  Army 
or  Na\'y  ia  necessarily  shared  by  the  President. 
The  power  to  command  depends  upon  disci- 
pline and  discipline  depends  upon  the  power  to 


82 


Pardoning  Power. 


Pt.  1.   THE  CONSTITUTION. 


Art.  II,  Sec.  2. 


punish;  and  the  power  to  punish  can  only  be 
exercised  in  time  of  peace  through  the  medium 
of  a  military  tribunal.  If  the  President  has  no 
authority  in  matters  pertaining  to  military 
tribunals  unless  it  be  'expressly'  granted  by 
Congress,  then  Congress  by  the  simple  expedi- 
ent of  exclusively  granting  the  authority  to 
appoint  courts-martial  and  approve  sentences 
to  a  few  officers  of  the  Army,  tacitly  ignoring 
the  President,  could  practically  defeat  the 
express  declaration  of  the  Constitution  and 
strip  the  office  of  commander  in  cliief  of  all 
real  powers  of  command.  The  court  can  not 
ascribe  any  such  purpose  to  the  legislation  of 
Congress."  (Swaim  v.  U.  S.,  28  Ct.  Cls.,  173, 
221;  affirmed  165  U.  S.,  553;  followed  28  Op. 
Atty.  Gen.,  487.) 

"As  Commander  in  Chief  the  President  is 
authorized  to  give  orders  to  his  subordinates, 
and  the  convening  of  a  court-martial  is  simply 
the  giving  of  an  order  to  certain  officers  to  as- 
semble as  a  court,  and  when  so  assembled,  to 
exercise  certain  powers  conferred  upon  them 
by  the  Articles  of  War. "  (Runkle's  case,  91 
Ct.  Cls.,  396,  409,  approved  in  Swaim  v.  U.  S., 
165  U.  S.,  553,  556,  holding  that  "it  is  within 
the  power  of  the  President  as  Commander  in 
Chief  to  convene  a  general  court-martial,  "  in 
the  Army.  In  the  Navy  the  President  is  ex- 
pressly authorized  by  statute  to  convene  gen- 
eral courts- martial.     Sec.  1624  R.  S.,  art.  38.- 

"It  is  said  that  courts-martial  are  the  crea- 
tures of  statute  law,  but  so  also  are  regiments. 
There  can  be  no  standing  army  without  statu- 
tory authority.  Congress  may  place  the  com- 
mand of  a  regiment  in  a  colonel,  a  lieutenant 
colonel,  a  major,  or  any  other  officer;  but  when 
Congress  so  enact,  they  without  words  to  that 
effect  Likewise  place  the  command  in  the  Com- 
mander in  Cliief.  His  name  is  to  be  understood 
as  written  in  every  statute  which  confers  upon 
a  military  officer  military  authority.  "  (Swaim 
V.  U.  S.,  28  Ct.  Cls.,  173,  224;  affirmed  165  U.  S., 
553.) 

An  order  of  the  Secretary  of  War  to  an 
officer  of  the  Army  is  the  order  of  the  President 
and  should  be  obeyed  as  such.  An  appeal  from 
such  order  to  the  President  is  no  more  than  a 
remonstrance  addressed  to  the  President  against 
hiniself.  (9  Op.  Atty.  Gen.,  463,  465.  For  other 
decisions,  see  note  to  Art.  II,  sec.  1,  clause  1; 
see  also  note  to  sec.  158,  R.  S.) 

Militia. — The  President  is  the  Commander 
in  Chief  of  the  Army  and  Navy  at  all  times,  and 
Commander  in  Chief  of  the  militia  only  when 
called  into  the  actual  service  of  the  United 
States.  (Johnson  v.  Sayre,  158  U.  S.,  115;  10 
Op.  Atty.  Gen.,  17.) 

II.  Executive  Departments. 

The  "principal  ofla.cer  in  each  of  the 
executive  departments,"  referred  to  in  this 
clause  means  the  same  as  "heads  of  depart- 
ments" in  the  next  clause  of  this  section  relat- 
ing to  appointments  to  office.  (U.  S.  v.  Ger- 
maine,  99  U.  S.,  511.)  See  note  to  section  158, 
Revised  Statutes,  as  to  origin  and  growth  of 
Executive  Departments,  and  see  note  to  Art. 
II,  sec.  1,  clause  1. 

The  President  is  authorized  by  this  section 
to  require  the  opinion  of  the  Attorney  General 


in  any  matter  relating  to  the  duties  of  his 
department,  and  his  authority  in  this  respect  is 
not  restricted  by  section  354,  Revised  Statutes, 
to  obtaining  the  Attorney  General's  opinion 
only  upon  questions  of  law.  (23  Op.  Atty. 
Gen.,  360.) 

The  President  has  also  required  the  opinion 
in  writing  of  officers  subordinate  to  the  head  of 
a  department.  (See  veto  message  of  President 
Roosevelt,  Apr.  7,  1908,  42d  Cong.  Rec,  pt.  5, 
p.  4503,  60th  Cong.,  1st  sess.,  noted  under  Art. 
I,  sec.  7,  clause  2,  with  which  there  was  trans- 
mitted a  written  opinion  furnished  by  the  Chief 
of  the  Bureau  of  Navigation,  Navy  Department, 
by  direction  of  the  President.) 

III.  Power  to  Pardon  Offenses  Against 
United  States. 

"A  pardon  is  an  act  of  gfrace  by  which  an 
offender  is  released  from  the  consequences  of 
his  offense,  so  far  as  such  release  is  practicable 
and  within  control  of  the  pardoning  power,  or 
of  officers  under  its  direction.  It  releases  the 
offender  from  all  disabilities  imposed  by  the 
offense,  and  restores  to  him  all  his  civil  rights. 
In  contemplation  of  law,  it  so  far  blots  out  the 
offense  that  afterwards  it  can  not  be  imputed 
to  him  to  prevent  the  assertion  of  his  legal 
rights.  It  gives  to  him  a  new  credit  and  capac- 
ity, and  rehabilitates  him  to  that  extent  in 
his  former  position.  But  it  does  not  make 
amends  for  the  past.  It  affords  no  relief  for 
what  has  been  suffered  by  the  offender  in  his 
person  by  imprisonment,  forced  labor,  or  other- 
wise; it  does  not  give  compensation  for  what 
has  been  done  or  suffered,  nor  does  it  impose 
upon  the  Govermnent  any  obligation  to  give  it. 
Tne  offense  being  established  by  judicial  pro- 
ceedings, that  which  has  been  done  or  suffei'ed 
while  they  were  in  force  is  presumed  to  have 
been  rightfully  done  or  justly  suffered,  and  no 
satisfaction  for  it  can  be  required."  (Knote  v. 
U.  S.,  95  U.  S.,  149;  Illinois  Cen.  R.  Co.  v.  Boa- 
worth,  133  U.  S.,  104.) 

Pardoning  power. — "A  power  to  pardon 
seems,  indeed,  indispensable  under  the  most 
correct  administration  of  the  law  by  human 
tribunals.  Since,  otherwise,  men  would  some- 
times fall  a  prey  to  the  vindictiveness  of  accu- 
sers, the  inaccuracy  of  testimony,  and  the  fal- 
libility of  jurors  and  courts."  (1  Kent,  Com., 
Lee.  XIII,  p.  284.) 

"Under  the  Constitution  the  power  of  the 
President  to  grant  reprieves  and  pardons  is 
plenary^  absolute,  and  without  limit  or  control 
as  to  the  offense,  the  beneficiany^,  the  time,  or 
the  nature  or  extent  of  his  pardon."  (27  Op. 
Atty.  Gen.,  178.) 

"The  power  of  pardon  in  criminal  cases  has 
been  exercised  from  time  immemorial  by  the 
executive  of  that  nation  whose  language  is  our 
language,  and  to  whose  judicial  institutions 
ours  bear  a  close  resemblance.  We  adopt  their 
principles  respecting  the  operation  and  effect 
of  a  pardon,  and  look  into  their  books  for  the 
rules  prescribing  the  manner  in  which  it  is  to 
be  used  by  the  person  who  would  avail  him-self 
of  it."  (U.  S.  V.  Wilson,  7  Pet.,  160,  per  Mar- 
shall, C.  J.;  see  also.  Ex  parte  Wells,  18  How., 
307;  Burdick  v.  U.  S.,  236  U.  S.,  79.) 


83 


Art.  II,  Sec.  2. 


n.  1.  THE  CONSTITUTION. 


Pardoning  Powei 


This  clause  confers  upon  the  President  the 
power  to  pardon  every  offense  known  to  the 
law,  with  the  single  exception  stated  (Ex  parte 
Garland,  4  Wall.,  333;  Ex  parte  Wells,  18  How., 
309) ;  that  exception,  accordin;^  to  a  well-known 
les^al  maxim  ['cxprestio  unius  est  exclusio 
alterius,"' — the  expression  of  one  thing  is  the 
exclusion  of  another],  slrenjrthens  the  applica- 
tion of  the  provision  to  all  offenses  not  excepted, 
"so  that  we  can  certainly  say  there  can  be  no 
offense  against  the  United  States,  except  in 
cases  of  impeachment,  over  which  the  Presi- 
dent has  not  an  absolute  pardoning  power." 
(U.  S.  I'.  Thomasson,  28  Fed.  Caa.  No.  16479.) 

Contempt  of  court. — Contempts  of  the 
Federal  courts  are  offenses  against  the  United 
States,  and  therefore  within  the  pardoning 
power  of  the  President.  "If  we  adopt,  as  the 
Supreme  Court  of  the  United  States  has  decided 
we  should,  the  principles  established  by  the 
common  law  respecting  the  operation  of  a  par- 
don, there  can  be  no  doubt  it  may  embrace 
such  a  case."  (3  Op.  Attv.  Gen.,  622;  4  Op. 
Atty.  Gen.,  458;  In  re  Mullee,  17  Fed.  Cas.  No. 
9911 .)  So  far  as  concerns  the  President's  power 
to  pardon  such  contempts,  "there  need  be  no 
he.''itation  to  act  in  the  premises.  Indeed,  I 
know  beyond  question  that  the  power  exists." 
(19  Op.  Atty.  Gen.,  476.) 

The  power  of  the  President  to  pardon  for 
contempt  of  court  is  seriously  doubted  in  any 
case,  and  upon  principle  and  authority  can  not 
be  held  to  exist  in  cases  of  civil  contempt, 
where  the  proceeding  is  instituted  to  enforce 
the  rights  of  private  parties  to  suits,  and  to 
compel  obedience  to  orders  and  decrees  made 
to  enforce  the  rights  and  administer  the  reme- 
dies to  which  the  coiirt  has  found  them  entitled. 
(In  re  Nevitt,  117  Fed.  Rep.,  448;  see  also 
Hendryx  v.  Fitzpatrick,  19  Fed.  Rep.,  811.) 

[The  Supreme  Court  has  never  passed  defi- 
nitely on  the  existence  of  the  pardoning  power 
in  cases  of  contempt  of  court.  In  the  case  of 
The  Laura,  114  U.  S.,  411,  413,  it  was  stated: 
"It  may  be  conceded  that,  except  in  cases  of 
impeachment  and  where  fines  are  imposed  by  a 
coordinate  departinent  of  the  Governmeat,  for  con- 
tempt of  its  authority,  the  President,  under  the 
general,  unqualified  grant  of  power  to  pardon 
offenses  against  the  United  States,  may  remit 
fines,  penalties,  and  forfeitiu-es  of  every  descrip- 
tion arising  under  the  laws  of  the  United  States." 
In  Ex  parte  Fisk,  113  U.S. ,713,  718,  after  hold- 
ing that  under  the  laws  then  i  n  force,  ' '  the  exer- 
cise of  the  power  of  punishment  for  contempt 
of  their  orders  by  courts  of  general  jurisdiction 
is  not  subject  to  review  by  writ  of  error  or  appeal 
to  this  court,"  it  was  remarked:  "Nor  is  there, 
in  the  system  of  Federal  jurisprudence,  any 
relief  against  such  orders  when  the  court  has 
authority  to  make  them,  except  through  the 
court  making  the  order,  or  possibly  by  the  exer- 
cise of  the  pardoning  power. ^^^ 

General  courts-martial  in  the  Navy  are  au- 
thorized to  punish  naval  witnesses  for  contempt 
by  article  42  of  the  Articles  for  the  Govermnent 
of  theNaA^- (sec.  1624,  R.  S.);  civilian  witnesses 
guilty  of  contempt  are  punishable  by  informa- 
tion in  the  district  court  of  the  United  States, 


which  information  it  is  the  duty  of  the  districi 
attorney  to  file  upon  certification  of  the  facts  to 
him  by  the  naval  court.     (Act  Feb.  16.  1909 
sec.  12,  35  Stat.,  622.) 

When  pardon  may  be  granted. — The 
President  "can  pardon  or  reprieve  only  when 
an  offense  against  tlie  law  has  been  established 
by  proof  or  the  admissions  of  the  party,  and  a 
penalty  thereby  incurred."  (2 Op.  Atty.  Gen. „ 
485;  see  also  Burdick  v.  U.  S.,  236  U.  S.,  79,  in 
which  this  question  was  discussed  but  not  de- 
cided.) 

The  power  to  pai'don  any  offense  "may  be 
exercised  at  any  time  after  its  commission, 
either  before  legal  proceedings  are  taken,  or 
during  their  pendency,  or  after  conviction  and 
judgment."  (Ex  parte  Garland,  4  Wall.,  333; 
see  also  60p.  Atty.  Gen.,  20;  5  Op.  Atty.  Gen., 
687;  2  Op.  Atty.  Gen.,  275;  1  Op.  Atty.  Gen.,341; 
compare  Burdick  v.  U.  S.,  236  U.  S.,  79.) 

The  Navy  Department  has  adopted  the  rule 
formulated  by  the  Department  of  Justice  and 
approved  by  the  President,  of  declining  to 
recommend  the  issuance  of  a  pardon  in  any 
case  prior  to  conviction.  (File  26282-84; 
Mar.  27,  1912;  see  also  file  26262-1344:5;  but  see 
file  26282-85,  Apr.  8,  1912.) 

In  cases  of  enlisted  men  convicted  of  deser- 
tion from  the  naval  service,  the  rule  was  adopted 
by  the  Navy  Department  of  recommending  that 
a  pardon  be  issued,  for  the  purpose  of  restoring 
rights  of  citizenship  forfeited  under  sections 
1996  _  and  1998,  Revised  Statutes,  where  the 
applicant  had  served  sentence  for  the  offense, 
and  then  only  after  two  years  from  date  of  dis- 
charge from  prison  and  provided  the  applicant 
produces  satisfactory  affidavits  to  the  effect  that 
he  has  lived  an  upright  and  industrious  life 
since  the  date  of  his  discharge.  (File  26282-84; 
loss  of  the  rights  of  citizenship  do  not  now  fol- 
low upon  conviction  of  desertion  except  in  time 
of  war.     Act  Aug.  22,  1912,  37  Stat.,  356.) 

^\^lere  a  naval  prisoner  has  sers^ed  sentence 
for  an  offense  other  than  desertion,  the  Navy 
Department  will  not  recommend  that  he  be 
pardoned,  as  loss  of  the  rights  of  citizenship 
does  not  attach  in  his  case.  (File  26282-214, 
Mar.  18,  1915.  See  also,  1  Op.  Atty.  Gen.,  359; 
23  Op.  Atty.  Gen.,  360.  As  to  conclusiveness  of 
finding  of  court-martial,  see  note  to  Art.  I,  sec. 
7,  clause  2,  "Veto  of  bill  to  annul  the  finding 
and  sentence  of  a  court-martial.") 

The  President  may  exercise  his  pardoning 
power  at  any  time,  so  long  as  any  of  the  legal 
consequences  of  the  offense  remain.  (Stetler's 
case,  22  Fed.  Cas.  No.  13380.)  Thus,  loss  of 
rmmbers  being  a  continuing  punishment,  the 
President  may,  by  pardon,  restore  the  officer  to 
his  original  position.  (12  Op.  Atty.  Gen.,  547; 
17  Op.  Atty.  Gen.,  656;  see  also  20  Op.  Atty. 
Gen.,  243.  And  see  17  Op.  Atty.  Gen.  31,  file 
26261-246:1,  Mar.  18,  1914,  and  26262-1794:1.) 
But  the  promotion  of  an  officer  completely  ex- 
ecutes a  sentence  of  loss  of  numbers  and  a 
pardon  issued  thereafter  can  not  restore  him  to 
his  original  position.  (File  26261-246:1,  Mar. 
18,  1914;  26262-1794:1,  Dec.  21,  1916.  But  see 
contra  file  1208,  Mar.  31,  1905,  case  of  Maj. 
James  E.  Mahoney.    See  also  4  Op.  Atty.  Gen., 


84 


Pardoning  Power. 


Pt.  1.  THE  CONSTITUTION. 


Art.  II,  Sec.  2. 


8,  and  31  Op.  Atty.  Gen.,  419,  as  to  effect  of 
promotion  upon  sentence  of  suspension  from 
rank  and  pay . ) 

"I  have  already,  in  the  exercise  of  the  par- 
doning power  with  which  the  President  is 
vested  by  the  Constitution,  remitted  the  con- 
tinuing penalty  which  had  made  it  impossible 
for  Fitz  John  Porter  to  hold  any  office  of  trust  or 
profit  under  the  Government  of  the  United 
States."  (Veto  message  of  President  Arthur, 
July  2,  1884,  noted  under  Art.  I,  sec.  7,  clause 

2.) 

When  the  sentence  of  a  court  has  been  served, 
a  pardon  may  be  granted  to  remove  the  dis- 
ability of  the  offender  to  testify  as  a  witness 
which  followed  upon  conviction  of  felony .  (U . 
S.  V.  Jones,  26  Fed.  Cas.  No.  15493;  Boyd  v. 
V.  S.,142U.  S.,453.) 

After  death  of  a  deserter  a  pardon  can  not  be 
issued  at  request  of  his  representatives.  (File 
3846-98,  June  10,  1898.) 

"This  power  of  the  President  is  not  sub- 
ject to  legislative  control.  Congress  can 
neither  limit  the  effect  of  his  pardon,  nor  ex- 
clude from  its  exercise  any  class  of  offenders. 
The  benign  prerogative  of  mercy  reposed  in 
him  can  not  be  fettered  by  any  legislative 
restrictions."  (Ex  parte  Garland, 4 Wall.,  333. 
See  also,  U.  S.  v.  Klein,  13  Wall.,  147;  5  Op. 
Atty.  Gen.,  582;  8  Op.  Atty. Gen.,  281;  20  Op. 
Atty.  Gen.,  668;  22  Op.  Atty.  Gen.,  39;  23  Op. 
Atty.  Gen.,  360.  But  see  act  Aug.  22, 1912,  37 
Stat.,  356,  which  provided  that  "the  loss  of 
rights  of  citizenship  heretofore  imposed  by  law 
upon  deserters  from  the  military  or  naval  serv- 
ice may  be  mitigated  or  remitted  by  the  Presi- 
dent where  the  offense  was  committed  in  time  of 
peace  and  where  the  exercise  of  such  clemency 
will  not  be  prejudicial  to  the  public  interests.") 

The  power  of  the  President  "can  not  be  in- 
terrupted, abridged,  or  limited  by  any  legisla- 
tive enactment. "_    (The  Laura,  114  U ."  S . ,  411 . ) 

"It  is  not  within  the  power  of  Congress  to  im- 
pose or  continue  in  force  a  penalty  or  punish- 
ment for  an  offense,  or  conviction  thereof,  that 
has  been  thus  pardoned,  nor  impose  or  con- 
tinue in  force  disabilities  that  have  been  thus 
removed."     (27  Op.  Atty.  Gen.,  178.) 

Power  of  Congress. — "Although  the  Con- 
stitution vests  in  the  President  power  to  grant 
reprieves  and  pardons  for  offenses  against  the 
United  States,  this  power  has  never  been 
held  to  take  from  Congress  the  power  to  pass  acta 
of  general  amnesty."  (Brown  v.  Walker,  161 
U.  S.,  591.) 

Power  of  other  ofilcers. — "Is  that  power 
[pardoning  power  of  President]  exclusive,  in 
the  sense  that  no  other  officer  can  remit  for- 
feitures or  penalties  incurred  for  the  violation 
of  the  laws  of  the  United  States?  This  question 
can  not  be  answered  in  the  affirmative  without 
adjudging  that  the  practice  in  reference  to  re- 
missions by  the  Secretary  of  the  Treasury  and 
other  officers,  which  has  been  observed  and 
acquiesced  in  for  nearly  a  century,  is  forbidden 
by  the  Constitution.  That  practice  com- 
menced very  shortly  after  the  adoption  of  the 
instrurnent,  and  was  perhaps  suggested  by  legis- 
lation in  England,  which,  without  interfering 
with,  abridging,  or  restricting  the  power  of 
pardon  belonging  to  the  Grown,  invested  certain 


subordinate  officers  with  authority  to  remit 
penalties  and  forfeitures  arising  from  violations 
of  the  revenue  and  customs  laws  of  that 
country."  (The  Laura,  114  U.  S.,411;  seealso 
6  0p.  Atty.  Gen.,  488.) 

The  powers  of  the  President  are  not  as  broad 
as  the  powers  of  an  English  king.  By  the  Con- 
stitution "the  power  to  grant  reprieves  and 
pardons  is  given,  in  terms,  to  the  President; 
but  the  power  to  remit  forfeitures,  fines,  and 
penalties  (as  distinct  from  the  pardon  of  crimes) 
is  not  given.  Yet  the  king  had  both  powers." 
(10  Op.  Atty.  Gen.,  454.  But  see  The  Laura, 
114  U.  S.,  411,  in  which  it  wasstated:  "Itmay 
be  conceded  that,  except  in  cases  of  impeach- 
ment and  where  fines  are  imposed  by  a  coordi- 
nate department  of  the  Government  for  con- 
tempt of  its  authority,  the  President,  under  the 
general  unqualified  grant  of  power  to  pardon 
offenses  against  the  United  States,  may  remit 
fines,  penalties,  and  forfeitures  of  every  descrip- 
tion arising  under  the  laws  of  Congress.") 

Article  112  of  the  Articles  of  War  (sec.  1342, 
R.  S.)  provided,  with  reference  to  the  Army, 
that  "Every  officer  who  is  authorized  to  order  a 
general  court-martial  shall  have  power  to  pardon 
or  mitigate  any  punishment  adjudged  by  it,  ex- 
cept the  punishment  of  death  or  of  dismissal  of 
an  officer.  Every  officer  commanding  a  regi- 
ment or  garrison  in  which  a  regimental  or  gar- 
rison court-martial  may  be  held,  shall  have 
power  to  pardon  or  mitigate  any  punishment 
which  such  court  may  adjudge."  (This  article 
of  war  has  been  superseded  by  act  of  Aug.  29, 
1916,  39  Stat.,  658,  amending  sec.  1342,  R.  S., 
arts  50-53,  which  latter  act  was  amended  by 
act  of  July  9,  1918,  40  Stat.,  882,  883.  See  1  Op. 
Atty.  Gen.,  327;  4  Op.  Atty.  Gen.,  444;  6  Op. 
Atty.  Gen.,  124, 125;  19  Op.  Atty.  Gen.,  106;  17 
Op.  Atty.  Gen.,  656;  see  also  People -z;.  Bowen, 
43Cal.,441.) 

By  article  54  of  the  Articles  for  the  Govern- 
mentof  the  Navy  (sec.  1624,  R.  S.)  it  is  provided 
that  "Every  officer  who  is  authorized  to  convene 
a  general  court-martial  shall  have  power,  on  re- 
vision of  its  proceedings,  to  remit  or  mitigate, 
but  not  to  commute,  the  sentence  of  any  such 
court  which  he  is  authorized  to  approve  and  con- 
firm." (See  20  Op.  Atty.  Gen.,  243;  15  Op. 
Atty.  Gen.,  175;  17  Op.  Atty.  Gen.,  31;  10  Op. 
Atty.  Gen.,  64;  17  Comp.  Dec,  311;  13  Comp. 
Dec,  726;  see  also  art.  33,  A.  G.  N.,  as  to  sen- 
tences of  summary  courts-martial.) 

It  may  be  questioned  whether  section  1624, 
Revised  Statutes,  article  54,  applies  to  the 
action  of  the  President.  (Mullan  v.  U.  S.,  212 
U.S.,  516.) 

"It  may  be  conceded  that  there  is  a  technical 
difference  between  the  commutation  of  a  sen- 
tence and  the  mitigation  thereof.  The  first  is  a 
change  of  a  punishment  to  which  a  person  has 
been  condemned  into  one  less  severe,  substitut- 
ing a  less  for  a  greater  punishment  by  authority 
of  law.  To  mitigate  a  sentence  is  to  reduce  or 
lessen  the  amount  of  the  penalty  or  punish- 
ment."    (Mullan  V.  U.  S.,  212  U.  S.,  516.) 

By  act  of  February  16,  1909  (sec.  9,  35  Stat. 
621),  it  is  provided  "That  the  Secretary  of  the 
Navy  may  set  aside  the  proceedings  or  remit  or 
mitigate,  in  whole  or  in  part,  the  sentence  im- 
posed by  any  naval  court-martial  convened  by 


85 


Art.  II,  Sec.  2. 


Pt.  1.  THE  CONSTITUTION. 


Pardoning  Power. 


his  order  or  by  that  of  any  officer  of  the  Xavy 
or  Marine  Corps." 

The  Adjutant  General  of  the  Army  has  power, 
"by  direction  of  the  President  of  the  United 
States,"  to  si<;n  a  letter  removing  the  disabili- 
ties resulting  from  the  conviction  of  an  ofiicer, 
which  letter  will  operate  as  a  pardon  by  the 
President.  (27  Op.  Atty.  Gen.  178:  see  below 
"Form  of  pardon."  l 

Constructive  pardon. — ^The  promotion  of 
an  oliicer  of  tlie  Marine  Corps  is  a  constructive 
pardon  of  a  pre\dous  sentence  pronounced  but 
not  execufecl.  (6  Op.  Atty.  Gen.,  123.)  Simi- 
larly, as  to  the  promotion  of  an  officer  under 
arrest  on  charges.  [4  Op.  Atty.  Gen.,  124;  8  Op. 
Atty.  Gen.,  237.)  The  promotion  of  a  passed 
midsliipman  to  the  office  of  lieutenant  in  the 
Navy,  18  an  implicit  pardon  of  sentence  of  sus- 
pension on  half  pay  which  he  was  under.  (4  Op. 
Atty.  Gen.,  8.)  So  also  as  to  the  appointment 
of  a  convicted  deserter  as  a  commissioned  officer 
intheNavy.  (File 5460-82, June 3, 191G).  But 
where  steps  have  been  taken  with  a  view  to  the 
promotion  of  an  officer,  before  the  promotion  is 
consummated  he  may  be  tried  by  court-mar- 
tial for  offenses  previously  committed.  (G.  C. 
M.  records,  Nos.  23553, 26451, 28681 ,  and  28798). 
And  where  an  officer  was  nominated  and  con- 
firmed for  advancement  in  rank,  after  he  has 
been  recommended  for  trial  by  court-martial, 
but  the  commission  was  not  signed  by  the 
President,  the  necessary  steps  for  his  trial  were 
proceeded  with  until  stayed  by  the  acceptance 
of  said  officer's  resignation  "for  the  good  of  the 
servdce."    (File  26251-2833,  Mar.  31,  1910.) 

An  order  of  the  Secretary  of  the  Navy  to  an 
officer,  while  under  sentence  of  suspension, 
to  attend  a  court-martial  as  a  witness  does 
not  operate  as  a  constructive  pardon.  (6  Op. 
Atty.  Gen. ,  714.)  Nor  does  the  restoration  of  an 
accused  person  to  duty  wdthout  trial.  Inas- 
much as  the  Secretary  of  the  Navy  has  no  power 
to  expressly  pardon  any  offense — this  being  a 
power  vested  by  the  Constitution  in  the  Presi- 
dent, wliich  can  not  be  delegated— it  follows 
that  no  action  of  the  Secretary  could  amount  to 
a  constructive  pardon.  (File  26251-1963:1, 
Aug.  17, 1910,  p.  13.) 

A  pardon  by  implication  or  construction  is  a 
thing  not  known  to  or  recognized  by  the  law. 
Accordingly,  held  that  the  temporary  promotion 
of  an  officer  of  the  Navy  while  under  charges 
awaiting  trial  by  general  court-martial  does  not 
operate  as  a  constructive  pardon  of  the  offenses 
charged  against  him.  As  to  effect  of  perma- 
nent promotion  upon  execution  of  a  sentence 
imposed  in  a  lower  grade,  quaere.  (31  Op. 
Atty.  Gen.  419,  overruling  opinions  of  Attorneys 
General  above  cited  relating  to  constructive 
pardons.) 

Conditional  pardon. — The  power  of  the 
President  to  grant  conditional  pardons  is 
unquestioned,  and  is  commonly  exercised  in 
practice.  (See  1  Op.  Atty.  Gen.,  482;  11  Op. 
Atty.  Gen.,  229;  Waring -y.  U.  S.,  7  Ct.  Cls.,  502; 
In  re  Ruhl,  20  Fed.  Cas.  No.  12124;  U.  S.  v. 
Ground,  27  Fed.  Cas.  No.  16299;  U.  S.  v. 
Klein,  13  Wall.,  142;  U.  S.  v.  Wilson,  7  Pet.,  161; 
Semmes  v.  U.  S.,  91  U.  S.,  21;  see  also  5  Op. 
Atty.  Gen.,  368;  14  Op.  Atty.  Gen.,  124.) 

Thus,  a  pardon  has  been  granted  to  an 
enlisted  man  in  the  Marine  Corps  on  condition 


that  he  reenlist.  (Case  of  John  L.  Lennon,  file 
5945-19;  see  also  file  3000-1898.)  So  also,  an 
ofiicer  of  the  Navy,  sentenced  to  loss  of  num- 
bers, has  been  pardoned  on  condition  that  he 
take  rank  in  a  specified  place  in  his  grade,  below 
his  original  position.     (File  26282-26.) 

"When  a  person  convicted  of  murder  accepts 
a  'commutation  of  sentence  or  pardon'  upon 
condition  that  he  be  imprisoned  at  hard  labor 
for  the  term  of  his  natural  life,  there  can  be  no 
question  as  to  the  binding  force  of  the  accept- 
ance."    (In  re  lloss,  140  U.  S.,  453.) 

Partial  pardon. — The  President  may  by 
pardon  remit  disalnlities  resulting  from  convic- 
tion, without  pardoning  the  offense.  Tluis  he 
may  issue  pardons  to  deserters  for  the  purpose  of 
restoring  their  rights  of  citizenship  (14  Op. 
Atty.  Gen.,  124),  and  such  pardons  have  been 
frequently  granted  in  practice  (file  26282; 
Report  of  Judge  Advocate  General  to  Presi- 
dent's Commission  on  Economy  and  Efficiency, 
Nov.  28,  1910,  file  28067;  see  also  3  Op.  Atty. 
Gen.,  418;  11  Op.  Atty.  Gen.,  227;  U.  S.  v. 
Lukins,  26  Fed.  Cas.  No.  15638),  and  he  may 
mitigate  a  sentence  of  dismissal  in  the  case  of  an 
officer  of  the  Navy  to  suspension  for  a  term  of 
years  without  pay.  (4  Op.  Atty.  Gen.,  433: 
15  Op.  Attv.  Gen.,  464;  Mullan  v.  U.  S.,  212 
U.  S.,  516.) 

General  pardon  and  amnesty. — The  Presi- 
dent has  power  to  grant  general  amnesty  by 
proclamation,  without  legislative  authority. 
(Armstrong  v.  U.  S.,  13  Wall.,  154;  20  Op.  Atty. 
Gen.,  330.)  "Amnesty"  is  usually  exercised 
in  favor  of  classes  of  persons  prior  to  conviction. 
(Brown  v.  Walker,  161  U.  S.,  601.) 

A  general  pardon  and  amnesty,  made  by  a 
public  proclamation  of  the  President,  has  the 
force  of  public  law,  and  courts  and  officers  must 
take  notice  of  it,  whether  especially  called  to 
their  attention  or  not.  (Jenlans  v.  Collard,  145 
U.  S..  560.)  In  this  respect,  a  general  pardon 
is  to  be  distinguished  from  an  individual  par- 
don, which  is  the  private,  though  official,  act  of 
the  Chief  Executive,  and  will  not  be  judicially 
noticed  by  the  court,  but  must  be  specially 
pleaded.  (U.  S.  v.  Wilson,  7  Pet.,  159;  Bur- 
dick  i>.  U.  S.,  236  U.  S.,  79.) 

Amnesty  and  pardon  "are  of  different  char- 
acter and  have  different  purposes.  The  one 
overlooks  offense;  the  other  remits  pimishment. 
The  first  is  usually  addressed  to  crimes  against 
the  sovereignty  of  the  State,  to  political  offenses, 
forgiveness  being  deemed  more  expedient  for 
the  public  welfare  than  prosecution  and  piinish- 
ment .  The  second  condones  infractions  of  the 
peace  of  the  State.  Amnesty  is  usually  general, 
addressed  to  classes,  or  even  communities — a 
legislative  act  or  under  legislation,  constitu- 
tional or  statutorj'^the  act  of  the  siipreme  mag- 
istrate. There  may  or  may  not  be  distinct  acts 
of  acceptance.  If  other  rights  are  dependent 
upon  it  and  are  asserted,  there  is  aflirmative 
evidence  of  acceptance.  *  *  *  If  there  be 
no  other  rights,  its  only  purpose  is  to  stay  the 
movement  of  the  law.  Its  function  is  exercised 
when  it  overlooks  the  offense  and  the  offender, 
leaving  both  in  oblivion."  (Burdick  v.  U.  S., 
236U.'S.,79.) 

Delivery  and  acceptance. — The  pardon  is 
a  deed,  to  the  validity  of  which  delivery  is 
essential,   and  the  delivery  is  not  complete 


86 


Pardoning  Power. 


Pt.  1.  TEE  CONSTITUTION. 


Art.  II,  Sec.  2. 


without  acceptance.  It  may  be  rejected  by 
the  person  to  whom  it  is  tendered,  and,  if  re- 
jected, there  is  no  power  in  the  court  to  force  it 
upon  the  individual.  (U.  S.  v.  "Wilson,  7  Pet., 
150;  Burdick  v.  U.  S.,  236  U.  S.,  79.) 

A  pardon  must  be  accepted  before  a  witness 
may  be  required  to  answer  incriminating  ques- 
tions connecting  him  with  matters  for  which  the 
pardon  grants  liim  immimity .  The  witness  has 
the  right,  if  he  desires  to  do  so,  to  refuse  the 
pardon  and  decline  to  testify.  (Burdick  v. 
U.S.,  236  U.S..  79.) 

Procedure  upon  requests  for  pardon. — 
Pursuant  to  an  undei'standing  between  the 
Department  of  Justice  and  the  Departments  of 
War  and  Na\y ,  and  by  niles  relating  to  applica- 
tions for  pardon  adopted  by  the  Attorney  Gen- 
eral and  approved  by  the  President,  the  De- 
partment of  Justice  will  not  consider  applica- 
tions for  pardon  for  desertion  or  other  offenses 
against  the  military  and  naval  laws.  "\Mien 
applications  are  received  by  the  Department  of 
Justice,  they  are  referred  to  the  Secretary  of  the 
Na^"y  or  the  Secretary  of  War  for  consideration. 
The  Department  of  Justice  does,  however,  issue 
the  formal  warrants  of  pardon  in  Army  and 
Na^'y  cases.  (Letter  of  Department  of  Justice, 
Sept.  6,  1904,  file  7466-04.) 

In  practice  in  Navy  cases,  where  the  Secre- 
tary of  the  Navy  approves  an  application  for 
pardon  and  transmits  it  to  the  President  with 
favorable  recommendation,  if  a  pardon  is  to  be 
granted,  the  Secretary's  letter  is  returned  wdth 
the  President's  approval  indorsed  thereon;  the 
papers  are  then  transmitted  to  the  Department 
of  Justice,  where  the  formal  warrant  of  pardon 
is  prepared  for  the  President's  signature;  when 
signed  by  the  President,  the  warrant  of  pardon 
is  sent  by  the  Department  of  Justice  to  the 
Secretary  of  the  Navy,  to  be  transmitted  to  the 
beneficiary,  together  with  a  blank  form  of 
receipt  and  acceptance  to  be  signed  by  the 
recipient  of  the  pardon  and  returned  by  him  to 
the  Navy  Department  for  file.  (File  26282; 
Kept,  of  Judge  Advocate  General  to  President's 
Commission  on  Economy  and  Efficiency,  Nov. 
28,  1910,  file  28067.) 

Form  of  pardon. — "Nor  is  the  form  which 
this  pardon  may  assume  at  all  important,  or  the 
manner  of  its  promulgation.  AXTienever  the 
President,  as  an  act  of  grace  or  clemency,  inter- 
venes to  condone,  in  whole  or  in  part,  an  offense 
committed,  or  to  prevent  or  remit  the  whole  or  a 
portion  of  a  punislmient  ordered,  or  to  commute 
the  whole  or  a  portion  thereof  by  the  substitu- 
tion of  another  less  severe,  or  to  remove  disa- 
bilities conseqiient  upon  con\'iction,  and  in 
whatever  form  this  is  done,  whether  by  a  formal 
pardon  directed  and  delivered  to  the  benefi- 
ciary, by  Executive  order  tlirough  The  Adj utant 
General,  or  by  a  proclamation  of  amnesty  to  a 
class  of  offenders,  this  is  always  and  necessarily 
an  exercise  of  the  pardoning  power  vested  in 
the  President  by  the  Constitution.  In  no  other 
way  can  the  President  interfere  to  condone  an 
offense,  prevent  or  mitigate  a  pimishment 
adjudged,  or  remove  disabilities  consequent 
upon  conviction."  (27 Op.  Atty.  Gen.,  178;  but 
see  above,  "  Delivery  and  acceptance.") 


The  following  communication,  addressed  by 
The  Adjutant  General  of  the  Army  to  the  gov- 
ernor of  Kansas,  was  held  to  constitute  a  pardon 
by  the  President:  "By  direction  of  the  Presi- 
dent of  the  United  States,  the  disabilities  re- 
sulting from  the  dismissal  of  Albert  H.  Camp- 
bell, formerly  a  captain  in  the  Fourteenth 
Regiment  Kansas  Vohmteer  Cavalry,  by  sen- 
tence of  general  court-martial  promulgated  in 
General  Orders,  No.  54,  May  30,  1865,  Depart- 
ment of  Arkansas,  are  hereby  removed,  and  he 
may  be  recommissioned  should  your  excellency 
so  desire."  (27  Op.  Atty.  Gen.,  178.) 

' '  That  such  pardon  to  be  effective  need  not  be 
addressed  to  the  beneficiary  is  abundantly 
shown  by  the  various  proclamations  of  pardon 
and  amnesty  granted  by  different  Presidents  to 
large  classes  of  offenders,  and  which  have  been 
imiformly  upheld  as  effective  by  the  Supreme 
Court.  (See  1  Winthrop  Mil.  Law,  2d  ed.,  714- 
715.)  In  such  cases  all  persons  embraced  in  the 
proclamation  are  entitled  to  its  benefits, 
although  they  may  never  before  have  heard  of 
the  amnesty .  Indeed ,  the  usual  way  of  pardon- 
ing militar>-  offenders  is  by  Executive  order  pro- 
mulgated and  entered  in  the  records  of  the  War 
Department.  (1  AVinthrop,  714.)"  (27  Op. 
Atty.  Gen.,  178.) 

The  Constitution  of  the  United  States  con- 
fers upon  the  President  "power  to  grant  par- 
dons for  offenses  against  the  United  States," 
thus  assimilating  a  pardon  to  an  express  grant 
by  deed,  and  the  general  constitutional  pro- 
vision is  of  this  character.  This  was  but  an 
adoption  of  the  English  rule  that  a  pardon  was 
a  grant  under  the  great  seal.  Even  an  instru- 
ment granting  a  pardon  under  the  sign  manual 
of  the  King  was  not  sufficient.  All  the  courts 
in  this  country,  construing  the  constitutional 
pro^^sion,  hold  that  a  pardon  is  an  express  act 
of  the  executive  or  legislature  evidenced  by 
something  in  the  nature  of  a  formal  grant.  As- 
sent of  the  grantee  is  needed  to  make  it  com- 
plete, a  meeting  of  the  minds  of  the  parties 
concerned  being  essential.  (31  Op.  Atty.  Gen., 
419.) 

Effect  of  pardon. — "A  pardon  reaches  both 
the  pimishment  prescribed  for  the  offense  and 
the  guilt  of  the  offender;  and  when  the  pardon  is 
full  it  releases  the  pimishment  and  blots  out  the 
existence  of  the  guilt,  so  that  in  the  eye  of  the 
law  the  offender  is  as  innocent  as  if  he  had  never 
committed  the  offense.  ■*  *  *  There  is  only 
one  limitation  to  its  operation;  it  does  not  re- 
store offices  forfeited  or  property  or  interests 
vested  in  others  in  consequence  of  the  convic- 
tion of  judgment."  (Ex  parte  Garland,  4 
Wall.,  333.  But  see  In  re  Spenser,  22  Fed.  Cas. 
No.  13234,  noted  below;  11  Op.  Atty.  Gen., 
228;  the  latter  holding  that  the  acceptance  of  a 
pardon  is  a  confession  of  legal  guilt.  See  also 
Roberts  i'.  State,  160  N.  Y.,  217.) 

Where  error  has  been  committed,  it  is  more 
benign  to  grant  a  new  trial  to  an  officer  who  has 
been  convicted  by  court-martial  than  to  grant 
liim  a  pardon,  which  would  be  "most  humili- 
ating to  the  prisoner."  "Is  there  any  mode  by 
which  liis  honor  can  be  rescued  from  the  impu- 
tation thrown  upon  it  by  an  improper  sentence 


87 


Art.  II,  Sec.  2. 


Ft.  1.   THE  CONSTITUTION. 


Pardoning  Power. 


of  a  first  court,  except  that  of  ordering  a  sec- 
ond?" (1  Op.  Atty.  Gen.,  233;  see  note  to 
amcndmontp.  Art.  V.) 

A  pardon  may  involve  "consequences  of  even 
greater  dissrracb  than  those  from  wliich  it  pur- 
ports to  retievo.  Cirrumstances  may  be  made 
to  bring  innocence  under  the  penahies  of  the 
law.  If  so  brought,  escape  by  confession  of 
griilt  implied  in  the  acceptance  of  a  pardon  may 
be  rejected— preferring  to  be  the  victim  of  the 
law  rather  than  its  acknowledged  transgressor; 
preferring  death. even,  to  such  certain  ignominy. 
*  *  *  The  latter  [pardon]  carries  an  imputa- 
tion of  guilt;  acceptance  a  confession  of  it." 
(Burdicki'.U.S.,236U.S.,79.) 

"Moneys  once  in  tlie  Treasury  can  only  be 
withdrawn  by  an  appropriation  by  law.  How- 
ever large,  therefore,  may  be  the  power  of  pardon 
possessed  by  the  President,  and  however  ex- 
tended may  be  its  application,  there  isthis  limit 
to  it ,  as  there  is  to  all  his  powers — it  can  not  touch 
moneys  in  the  Treasury  of  the  United  States, 
except  expressly  authorized  by  act  of  Congress. 
The  Constitution  places  this  restriction  upon 
the  pardoning  power.  AMiere,  however,  prop- 
erty condemned,  or  its  proceeds,  have  not  thiis 
vested,  but  remain  imder  control  of  the  Execu- 
tive, or  of  officers  subject  to  his  orders,  or  are  in 
the  custody  of  the  jiidicial  tribunals,  the  prop- 
erty will  be  restored  or  its  proceeds  delivered  to 
the  original  owner  upon  hie  full  pardon." 
(Knote-y.U.S.,95U.  S.,149.) 

"The  test,  then,  is  whether  the  proceeds  of  a 
fine,  penalty,  or  forfeit \ire  has  passed  into  the 
Treasury  of  the  United  States.  If  noc,  the 
pardoning  power  of  the  President  may  act  upon 
It  *  *  *."  (23  Op.  Atty.  Gen.,  360,  363; 
Bee  also  14  Op.  Atty.  Gen.,  599;  16  Op.  Atty. 
Gen.,  1;  80p.  Atty.  Gen.,  281;  2  Op.  Atty.  Gen., 
329;  10  Op.  Atty.  Gen.,  452;  Vanderslicev.  U.  S., 
19Ct.Cls.,481.') 

"The  effect  of  the  pardon  is  prospective 
and  not  retrospective.  It  removes  the 
guilt  and  restores  the  party  to  a  state  of  inno- 
cence. But  it  does  not  change  the  past  and 
can  not  anniliilate  the  established  fact  that  he 
was  guilty  of  the  offense."  (In  re  Spenser,  22 
Fed.  Cas.  No.  13234.) 

The  President's  pardon  does  not  alter  the  fact 
that  the  service  of  an  enlisted  man  convicted  of 
desertion  was  not  "honest  and  faithful" 
within  the  meaning  of  statutes  relating  to  the 
Army.  Congress  has  the  right  to  prescribe 
qualifications  and  conditions  for  enlisted  men 
and  to  forbid  those  not  possessing  such  qualifi- 
cations to  enter  the  military  ser\T.ce.  (22  Op. 
Atty.  Gen. ,39.) 

"  A  pardon  can  not  change  existing  or  accom- 
plished facts,  although  it  may  remove  or  pre- 
vent their  consequences;  ana  in  this  case  the 
Eardon  can  not  change  the  fact  that  this  officer 
as  never  been  honorably  discharged  from  the 
Army."  (27  Op.  Atty.  Gen.,  178.)  '"The  act 
is  plain  and  unequivocal;  it  provides  for  a  pen- 
sion to  those  only  who  have  been  '  honorably 
discharged '  from  the  Army  or  Navy.  This 
officer  has  not  been  so  discharged,  and  is  there- 
fore not  within  the  terms  of  the  grant. ' '  (Same 
case.) 

The  pardon  of  a  convicted  deserter  from  the 
Navy  blots  out  his  offense  and  he  may  legally 


be  reenlisted,  notwithstanding  the  provisions 
of  sections  1420  and  1624  (art.  19),  Revised 
Statutes,  prohil)iting  the  enlistment  of  desert- 
ers in  the  naval  sers-ice.  (26  Op.  Atty.  Gen., 
617,  overruled  by  31  Op.  Atty.  Gen.,  225, 
noted  below;  see  also  22  Op.  Atty.  Gen.,  39, 
above  noted.) 

Section  1441,  Re^dsed  Statutes,  and  the  acts 
of  February  16,  1914  (38  Stat.,  283,  290),  and 
August  29,  1916  (39  Stat.,  589),  are  rules  re- 
lating to  qualifications  for  office  in  the  Navy, 
and  for  membership  in  the  Naval  Reserve 
Force,  which  do  not  impose  a  penalty  as  such 
on  individual  offenders,  and  the  incidental  dis- 
abilities which  they  may  suffer  by  reason  of 
these  statutes  are  not  removed  by  a  pardon. 
Similarly,  sections  1420  and  1624,  article  19, 
Revised  Statutes,  as  amended  by  act  of  August 
22,  1912  (37  Stat.,  356),  ai-e  statutes  relating  to 
the  general  organization  and  efficiency  of  the 
Na^y,  which  affect  only  incidentally  particular 
classes  of  individuals,  and  are  ob\dously  not 
intended  as  punishment  for  offenses;  they  place 
deserters  in  the  same  category  with  minors, 
insane  persons,  and  intoxicated  persons  as  not 
qualified  for  the  naval  service;  and  a  pardon 
does  not  remove  the  disqualification  attached 
to  the /acf  of  desertion  and  render  the  deserter 
eligible  for  reenlistment  in  the  naval  service. 
On  the  other  hand,  section  1998,  RoAOsed  Stat- 
utes, as  amended  by  the  act  of  August  22,  1912 
(37  Stat.,  356),  prescribes  disabilities,  not 
merely  incidental  to  qualifications  for  service 
in  the  Navy,  but  in  effect  and  by  express 
avowal  constituting  punishment  of  offenses, 
which  as  such  would  of  course  be  'niped  out 
by  an  unconditional  pardon.  (31  Op.  Atty. 
Gen.,  225,  overruling  26  Op.  Atty.  Gen.,  617, 
noted  above.) 

By  sections  4756,  4757,  Revised  Statutes, 
benefits  are  conferred  on  persons  formerly  in  the 
naval  service  who  have  "not  been  discharged 
for  misconduct."  The  recipient  of  a  pardon  is 
entitlecl  to  the  benefits  of  these  sections  in  the 
same  manner  and  with  the  same  force  as  if  he 
had  never  been  discharged  for  misconduct. 
(File  5789-99,  Sept.  2,  1899.) 

A  pardon  for  desertion  operates  from  its  date 
to  relieve  from  all  further  penalties  and  forfei- 
tures consequent  upon  desertion,  but  a  man  is 
not  entitled  to  arrears  of  pension  or  to  relief 
covering  the  period  during  which  he  was  not 
in  a  pensionable  status;  that  is,  prior  to  date  of 
pardon.     (File  2443-03.) 

Congress  has  a  constitutional  right  to  pro- 
hibit the  oflicers  of  the  Government  from  pay- 
ing persons  who  encouraged  rebellion,  and  they 
can  not  consider  such  claims,  although  the 
claimants  may  have  received  an  Executive 
pardon.  (Hart  v.  U.  S.,  16  Ct.  Cls.,  484; 
affirmed  118  U.  S.,  62;  compare  U.  S.  v.  Klein, 
13  Wall.,  147.) 

A  pardon  can  not  restore  an  officer  to  the 
service  after  a  sentence  of  dismissal  has  been 
executed  (Vanderslice  v.  U.  S.,  19  Ct.  Cls., 
481;  11  Op.  Atty.  Gen.,  19);  but  it  may  re- 
store an  officer  to  his  original  position  in  his 
grade  after  a  sentence  of  loss  of  numbers  (12 
Op.  Atty.  Gen.,  547);  and  prior  to  execution 
of  a  sentence  of  dismissal  the  President  may 
mitigate  it  to  suspension  from  rank  and  pay. 
(4  Op.  Atty.  Gen.,  433.) 


88 


Power  of  Appointment. 


Pt.  1.  THE  CONSTITUTION. 


Art.  II,  Sec.  2. 


Where  a  convicted  offender  has  been  given 
an  unconditional  pardon,  the  President  can  not 
afterwards  issue  him  a  supplemental  pardon 
for  the  specific  purpose  of  relieving  him  of  dis- 
abilities resulting  from  State  laws.  If  such 
disabilities  were  not  removed  by  the  pardon 
already  issued,  they  are  a  matter  under  the 
control  of  the  State  and  not  of  the  Federal 
pardoning  power.  (7  Op.  Atty.  Gen.,  760.) 
"As  to  the  matter  of  incidental  disabilities  of 
conviction  for  crime,  it  has  seemed  to  me  that 
a  pardon  by  the  proper  pardoning  power  of  one 
jurisdiction  does  not  affect  disabilities  imposed 
by  another  jurisdiction."  (8  Op.  Atty.  Gen., 
284.) 

A  pardon  obtained  by  fraud  is  void  and  of  no 
effect.     (11  Op.  Atty.  Gen.,  227.) 

A  pardon  issued  to  a  deserter  from  the  Navy 
does  not  authorize  the  Navy  Department  to 
remove  the  mark  of  desertion  entered  on  its 
records,  the  entry  being  one  of  fact,  which  is 
not  altered  by  the  pardon.  (File  26251- 
1963:1,  Aug.  17,  1910;  compare  file  1768-D, 
1902,  case  of  Ezekiel  Downey.) 

A  person  convicted  of  an  offense  against  the 
laws  of  the  United  States,  which  disfranchises 
him  as  a  citizen,  can  be  restored  to  his  rights 
by  a  pardon  issued  before  or  after  he  has  suf- 
ered  the  other  penalties  incident  to  his  con- 


viction. (9  Op.  Atty.  Gen.,  478;  see  also  14 
Op.  Atty.  Gen.,  124;  compare  7  Op.  Atty. 
Gen.,  760.) 

"There  are  two  general  classes  of  punish- 
ments for  military  offenses.  First,  those  which 
directly  affect  the  person  or  property  of  the 
offender,  such  as  death,  imprisonment,  or  dis- 
missal; fines;  the  return  or  restoration  of  prop- 
erty or  money  wrongfully  held,  and  the  like. 
These  are  prescribed  by  law  or  established 
usage,  and  are  imposed  in  the  sentence  itself. 
Second,  certain  disabilities,  such  as  the  depri- 
vation of  certain  civil  and  political  rights  which 
persons  otherwise  similarly  situated  may  have 
and  enjoy — such  as  the  rights  of  citizenship, 
the  right  to  vote  or  to  hold  ofhce,  to  be  em- 
ployed in  the  Government  or  to  enlist  or  be 
appointed  in  the  Army,  and  the  like.  These 
are  prescribed  by  law  or  established  usage,  but 
are  not  imposed  by  the  sentence  and  are  rather 
consequences  of  the  conviction.  It  is  with 
these  that  we  have  to  do  here.  From  these 
considerations  it  is  obvious  that  this  communi- 
cation *  *  *  was  necessarily  an  exercise 
of  the  pardoning  power  and  as  such  was  effective 
to  the  extent  there  expressed,  namely,  in  the 
removal  of  all  disabilities  consequent  upon  the 
conviction  of  the  officer."  (27  Op.  Atty.  Gen,, 
178.) 


[Clause  2.  Treaty  making  power;  appointment  of  officers.]  ^  He  shall  have 
Power,  by  and  with  the  Advice  and  Consent  of  the  Senate,  to  make  Treaties, 
provided  two-thirds  of  the  Senators  present  concur;  and  he  shall  nominate, 
and  by  and  with  the  Advice  and  Consent  of  the  Senate,  shall  appoint  Ambas- 
sadors, other  public  Ministers  and  Consuls,  Judges  of  the  Supreme  Court,  and 
all  other  Officers  of  the  United  States,  whose  Appointments  are  not  herein 
otherwise  provided  for,  and  which  shall  be  established  by  Law:  but  the  Con- 
gress may  by  Law  vest  the  Appointment  of  such  inferior  Officers,  as  they  think 
proper,  in  the  President  alone,  in  the  Courts  of  Law,  or  in  the  Heads  of  Depart- 
ments. 


I. 
II. 

III. 
IV. 


Officers  of  the  United  States. 
Constitutional   Power   of   Appoint- 
ment. 
Power  of  Congress. 
Statutory  Requirements  and  Qual- 
ifications. 
V.  Power  of  Senate. 
VI.  What  Constitutes  Appointment. 
VII.  Pay  and  Oath  of  Officers. 
VIII.  Power  of  Removal. 
IX.  Right  of  Officers  to  Resign. 


I.  Officers  of  the  United  States. 

Who  are  officers  of  the  United  States. — 
"What  is  necessary  to  constitute  a  person  an 
officer  of  the  United  States  in  any  of  the  various 
branches  of  its  service  has  been  fully  considered 
by  this  coiu-t  in  United  States  v.  Germaine  (99 
U._  S.,  508).  In  that  case  it  was  distinctly 
pointed  out  that  under  the  Constitution  of  the 
United  States  all  its  officers  were  appointed  by 


the  President,  by  and  with  the  consent  of  the 
Senate,  or  by  a  court  of  law,  or  the  head  of  a 
department;  and  the  heads  of  departments  were 
defined  in  that  opinion  to  be  what  are  now 
called  the  members  of  the  Cabinet.  Unless 
a  person  in  the  service  of  the  Government, 
therefore,  holds  his  place  by  virtue  of  an  ap- 
pointment by  the  President,  or  of  one  of  the 
courts  of  justice  or  heads  of  departments  author- 
ized by  law  to  make  such  an  appointment,  he 
is  not,  strictly  speaking,  an  officer  of  the  United 
States."  (U.  S.  v.  Mouat,  124  U.  S.,  303;  4 
Comp.  Dec,  696.) 

"This  provision  of  the  Constitution  divides 
inferior  officers  into  two  classes,  according  to 
the  source  from  which  the  power  of  appointment 
is  derived  " ;  namely,  officers  appointed  by  the 
President,  by  and  with  the  advice  and  consent 
of  the  Senate,  in  accordance  with  the  duty 
directly  imposed  on  the  President  by  the  Con- 
stitution itself;  and  officers  otherwise  appointed 
in  accordance  with  the  direction  of  Congress, 
(30  Op.  Atty.  Gen.,  177.) 

"It  would  be  impossible  to  define,  except 
arbitrarily,  the  meaning  of  the  words  'inferior 


89 


Art.  II,  Sec.  2. 


Pt.l.   THE  CONSTITUTION.  Power  of  Appointment. 


officers,'  in  their  application  to  officers  of  the 
different  bruiuhos  of  the  public  service  who 
have  no  ofiuiul  relation  to  each  otlier.  and  it 
would  not  be  ea.-iy  to  se]^arate  all  tlie  ollicers  of 
the  tiovemnient  into  two  classes  and  draw  a 
satisfactory  line  which  would  define  the  infe- 
rior, in  the  sense  in  which  it  is  claimed  that 
word  is  used,  from  those  of  the  higher  class,  nor 
is  it  necessary  to  attemjit  to  do  either.  In  our 
o])inion,  the  words  as  used  in  connection  ^\•ith 
the  other  language  of  the  same  clause,  have  a 

{)lain,  definite,  and  intclhgible  meaning,  capa- 
)le  of  unmistakable  application  to  effect  the 
pur])oses  of  that  provision  of  the  Constitution, 
llaving  s])ecifiea  certain  officers,  imnisters, 
consuls,  and  judges  of  the  Supreme  Oourt  who 
sliall  be  nominated  by  the  President  and  ap- 
pointed by  and  with  the  advice  and  consent 
of  the  Senate  in  all  cases,  the  Constitution 
leaves  it  to  Congress  to  vest  in  the  President 
alone,  the  courts  of  law,  or  the  heads  of  depart- 
ments the  a])pointment  of  any  officer  inferior 
or  subordinate  to  them,  respectively,  whenever 
Congress  thinks  proper  so  to  do."  (Collins  v. 
U.  S.,  14  Ct.  Cls.,  5G8.) 

"The  word  inferior  is  not  here  used  in  that 
vague,  indefinite,  and  quite  inaccurate  sense 
which  has  been  suggested — the  sense  of  petty  or 
unimportant;  but  it  means  subordinate  or  in- 
ferior to  those  officers  in  whom  respectively  the 
power  of  appointment  may  be  vested — the  Presi- 
dent, the  coui'ts  of  law,  and  the  heads  of 
departments."  (Collins -y.  U.S.,  14  Ct.  Cls., 
568;  see  also  23  Op.  Atty.  Gen.,  574,  578,  579.) 

' '  Whenever,  therefore,  Congress  thinks  proper 
to  vest  in  the  President  alone,  in  a  court  of  law, 
or  in  the  head  of  a  department  the  appointment 
of  any  of  their  respective  subordinate  officers, 
other  than  those  named  in  the  clause  under 
consideration,  or  whose  appointment  is  other- 
wise pro\'ided  for  by  the  Constitution,  it  must 
be  held  that  such  officers  are  inferior  officers 
within  the  meaning  of  the  Constitution,  whose 
api)ointment  in  that  manner  Congress  has  the 
power  to  authorize;  and  the  act  of  Congress 
must  be  respected  and  enforced  by  the  execu- 
tive officers  of  the  Government."  (Collins  v. 
U.  S.,  14  Ct.  Cls.,  568;  see  also  U.  S.  v.  Germaine, 
99  U.  S.,  508.) 

"An  office  is  a  public  station  or  employment 
conferred  by  the  appointment  of  Government. 
The  term  embraces  the  ideas  of  tenure,  dura- 
tion, emolument,  and  duties."  (U.  S.  v.  Hart- 
well,  6  Wall.,  385,  holding  that  a  clerk  in  the 
office  of  an  Assistant  Treasurer  of  the  United 
States  is  a  public  officer  within  the  meaning  of 
a  penal  statute.  For  other  cases,  see  note  to 
act  July  31,  1894,  sec.  2,  28  Stat.,  205.) 

The  clerks  employed  in  the  offices  of  the 
several  departments  of  the  Government  are 
not  liable  to  militia  duty,  being  executive 
officers  of  the  Government  of  the  United  States, 
under  the  terms  of  the  statute  exempting  from 
such  duty  the  Vice  President,  the  officers, 
judicial  and  executive,  of  the  Government  of 
the  United  States,  the  members  of  both  houses 
of  Congi'ess  and  their  respective  officers,  all 
custom-house  officers,  with  their  clerks,  all 
post  officers  and  stage  drivers  employed  in  the 
care  and  conveyance  of  the  mail,  etc.  (Ex 
parte  Smith,  2  Cranch,  C.   C,  693,  22  Fed. 


Cas.  No.  12967,  cited  with  ai)proval  in  U.  S.  v. 
Ilartweli,  6  Wall.,  385,  393.) 

A  person  may  be  an  officer  within  the  mean- 
ing of  statutory  enactments,  although  not  an 
oliicer  of  the  United  States  in  the  constitu- 
tional sense.  Thus,  clerks  to  i)aymasters  in  the 
Navy,  although  not  appointed  in  any  of  the 
methods  provided  for  by  the  Constitution, 
were  held  oflicers  of  the  Navy  witliin  the  mean- 
ing of  a  statute  pro\'iding  for  increased  pay 
according  to  length  of  service  (U.  S.  v.  Hendee, 
124  U.  S.,  309,  affirming  22  Ct.  Cls.,  134),  but 
at  the  same  time  were  held  not  to  be  officers  in 
the  constitutional  sense  (U.  S.  v.  Mouat,  124 
U.  S.,  303).  Later,  when  the  appointment  of 
these  clerks  was  vested  in  the  Secretary  of  the 
Navy  by  regulations  issued  in  accordance  with 
section  1547,  Revised  Statutes,  it  was  held  that 
they  thus  became  officers  of  the  United  States 
in  the  constitutional  sense,  as  well  as  in  the 
popular  meaning  of  the  term.  (27  Op.  Atty. 
Gen.,  157;  but  see  Ashton  v.  U.  S.,  51  Ct.  Cls., 
65.  Congress  has  now  pro\ided  for  the  ap- 
pointment of  pay  clerks  in  the  constitutional 
manner;  see  act  Mar.  3,  1915,  38  Stat.,  942.) 
Similarly,  a  midshipman  at  the  Naval  Acad- 
emy, although  appointed  by  the  Secretary  of 
the  Navy,  "by  direction  of  the  President,"  was 
held  not  to  be  an  officer  of  the  Na\^  within  the 
meaning  of  article  36  of  the  Articles  for  the 
Government  of  the  Navy  (sec.  1624,  R.  S.),  re- 
stricting dismissals  from  the  Navy  (Weller  v. 
U.  S.,  41  Ct.  Cls.,  324);  although  held  to  be  an 
officer  within  the  meaning  of  various  other 
statutes.  (See  sec.  1512,  R.  S.  See  further, 
Perkins  v.  U.  S.,  20  Ct.  Cls.,  438,  affirmed  116 
U.  S.,  483;  U.  S.  v.  Moore,  95  U.  S.,  760;  U.  S. 
V.  Redgrave,  116  U.  S.,  474,  and  sec.  1,  R.  S.) 

II.  Constitutional  Power  of  Appointment. 

Who  are  to  make  appointments  to 
oflB.ce. — "When  Congress  creates  an  office,  but 
does  not  vest  the  power  of  appointment  thereto 
in  any  of  the  persons  specified,  then  the  Con- 
stitution operates,  proprio  vigore  [of  its  own 
force],  and  immediately  casts  upon  the  Presi- 
dent, by  and  with  the  advice  and  consent  of 
the  Senate,  the  duty  of  appointing  thereto." 
(30  Op.  Atty.  Gen.,  177.  See  also  note  to  sec. 
169,  R.  S.) 

In  the  absence  of  an  express  enactment  to 
the  contrary,  the  appointment  of  any  officer  of 
the  United  States  l:)elongs  to  the  President  and 
Senate.  (29  Op.  Atty.  Gen.,  116,  citing,  6  Op. 
Atty.  Gen.,  1;  15  Op.  Atty.  Gen.,  3,  449;  17  Op. 
Atty.  Gen.,  532;  18  Op.  Atty.  Gen.,  98,  298; 
26  Op.  Atty.  Gen.,  627.) 

"The  appointing  power  here  designated  in 
the  latter  part  of  the  section  was  no  doubt 
intended  to  be  exercised  by  the  department  of 
the  Government  to  which  the  officer  to  be 
appointed  most  appropriately  ])elonged . ' '  (Ex 
parte  Hennen,  13  Pet., 258;  Collins  v.  U.  S.,  14 
Ct.  Cls.,  568,  575.) 

Congress  ' '  may  authorize  the  President  or  the 
head  of  the  ^^'ar  Department  to  appoint  an 
Army  officer,  because  the  officer  to  be  appointed 
is  inferior  to  the  one  thus  vested  with  the  ap- 
pointing power."  (Collins t).  U.  S.,  14  Ct.  Cls., 
568.) 


90 


Po^wer  of  Appointment. 


Pt.  1.   THE  CONSTITUTION. 


Art.  II,  Sec.  2. 


"A  statute  which  provides  that '  the  President 
be,  and  he  is  hereby,  authorized  to  reinstate 
Maj.  C,  kite  of  the  United  States  Army,  and 
to  retire  him  in  that  grade,  as  of  the  date  he 
was  previously  mustered  out, '  confers  authority 
on  the  President  alone  to  reinstate  the  officer, 
without  the  advice  and  consent  of  the  Senate." 
(Collins  V.  U.  S.,  14  Ct.  Cls.,  568,  syllabus.) 

"In  Moore's  case  (95  U.  S.,  760)  the  Supreme 
Court  has  gone  much  further  than  we  now  go, 
or  than  this  case  requires,  in  upholding  the 
validity  of  an  appointment  made  without  the 
advice  and  consent  of  the  Senate.  The  statutes 
provided  that  *  *  *  all  appointments  in 
the  Medical  Corps  [of  the  Navy]  should  be 
with  the  advice  and  consent  of  the  Senate. 
(Sec.  1369,  R.  S.)  *  *  *  Moore  was  an 
assistant  surgeon  who  had  successfully  passed 
his  examination  for  promotion  and  had  been 
notified  by  the  Secretary  of  the  Navy  that  the 
report  of  the  board  of  examiners  was  approved 
by  the  department,  and  from  that  date  he 
would  be  regarded  as  a  'passed  assistant  siu*- 
geon.'  It  was  held  by  the  Supreme  Court  that 
'  the  place  of  passed  assistant  surgeon  is  an  office, 
and  the  notification  by  the  Secretary  of  the 
Navy  was  a  valid  appointment  to  it. "  '  (Collins 
V.  U.  S.,  14Ct.  Cls.,568.) 

An  officer  [deputy  commissioner  of  fisheries] 
appointed  by  the  head  of  a  department  without 
statutory  authority  was  not  legally  appointed, 
and  his  status  is  therefore  that  of  a  de  facto 
officer.     (29  Op.  Atty.  Gen.,  116.) 

When  the  President  is  authorized  by  statute 
to  appoint  certain  officers  of  the  Navy  and 
Marine  Cor])s,  the  advice  and  consent  of  the 
Senate  is  not  required.  "The  appointments 
provided  for  by  this  legislation  are  not  such  as 
by  the  Constitution  are  required  to  be  made  in 
any  particular  way.  It  was  within  the  prov- 
ince of  Congress  to  prescribe  by  whom  and  how 
these  additional  ofticers  should  be  chosen, 
appointed ,  and  commissioned .  Congress  might 
have  directed  that  they  should  be  appointed 
by  the  President,  by  and  with  the  advice  and 
consent  of  the  Senate,  but  such  was  not  the 
method  actually  provided  for.  The  provision 
of  the  statute  is  that  the  President  is  authorized 
to  appoint.  I  see  no  ground  whatever  for  hold- 
ing that  the  advice  and  consent  of  the  Senate 
is  requisite  to  a  lawful  appointment  under  this 
legislation.  An  examination  of  kindred  enact- 
ments relating  to  appointments  in  the  Na\'y  as 
well  as  appointments  in  the  Army  indicates  that 
Congress  frequently  discriminates  between 
appointments  to  be  made  by  the  President 
alone  and  appointments  to  be  made  by  the 
President  by  and  with  the  advice  and  consent 
of  the  Senate."     (22  Op.  Atty.  Gen.,  82.) 

"The  statutes  appear  to  be  entirely  silent 
upon  the  subject  as  to  who  shall  make  the 
appointments  of  midshipmen  at  the  Naval 
Academy,  except  that,  if  Members  of  Congress 
fail  to  nominate,  such  vacancies  shall  be  filled 
by  appointment  of  the  Secretary  of  the  Navy. 
(Sec.  1514,  R.  S.)  The  appointment  in  this 
case  was  made  'by  direction  of  the  Presi- 
dent,' and  we  understand  that  this  is  and  has 
been  the  universal  practice  in  the  making  of 
appointments  with  the  exception  a])ove  stated . ' ' 
(Weller  v.  U.  S.,  41  Ct.  Cls.,  324,  336;  see  also 
10  Op.  Atty.  Gen.,  46.) 

54641°— 22 7  91 


The  only  question  to  be  solved  here  is 
whether  there  is  provision  for  the  appointment 
of  a  secretary  to  the  Admiral  by  some  one 
other  than  by  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate.  The  ex- 
pression of  the  statute  is,  that  the  Admiral 
"shall  be  allowed"-  a  secretary.  That  on  its 
face  indicates  that  the  appointment  is  to  be 
personal  to  the  Admiral  and  so  suggests  that 
he  is  to  make  the  selection.  On  account  of  this 
and  the  provisions  of  the  Navy  Regulations 
in  force  when  the  law  was  passed  providing 
for  appointment  of  his  secretary  by  the  Admiral, 
held,  that  api^ointment  in  this  case  was  not 
to  be  made  with  the  advice  and  consent  of  the 
Senate.     (19  Op.  Atty.  Gen.,  589.) 

By  section  169,  Revised  Statutes,  Congress 
has  vested  in  the  heads  of  departments  the 
appointment  of  clerks,  laborers,  and  other 
employees  in  their  departments.  (See  note  of 
decisions  under  that  section  as  to  positions 
included  therein.) 

The  following  are  examples  of  statutes  in 
which  Congress  has  in  the  past  vested  the 
api^ointment  of  naval  officers  in  the  President 
alone:  Admiral  of  the  Navy  (act  Mar.  2,  1899, 

30  Stat.,  995;  act  Mar.  3,  1899,  30  Stat.,  1045); 
warrant  officers  (sec.  1405,  R.  S.;  act  Mar. 
4,  1913,  37  Stat.,  891;  etc.);  ensigns,  when  ap- 
pointed from  warrant  officers  (act  Mar.  3,    1901, 

31  Stat.,  1129);  Commandant  of  the  Marine 
Corps  (act  June  6,  1874,  18  Stat.,  58);  second 
lieutenants,  Marine  Corps  (act  Mar.  3,  1899,  sec. 
19,  30  Stat.,  1008);  Spanish  War  appointments 
(act  May  4,  1898,  30  Stat.,  369).  See  also  23 
Op.  Atty.  Gen.,  574, 578;  23  Op.  Atty.  Gen. ,  138. 

Power  of  appointment  limited,  by  Consti- 
tution.— "Power  of  appointment  under  the 
United  States  can  not  be  communicated  by 
act  of  Congress  to  persons  not  named  to  that 
end  by  the  Constitution."  (8  Op.  Atty. 
Gen.,  41.) 

"Congress  has  power  to  distribute  at  its 
pleasure  the  appointment  of  inferior  officers 
between  the  President,  courts  of  law,  and  heads 
of  departments,  or  to  vest  such  appointments 
exclusively  in  one  or  two  of  those  depositories; 
but  it  has  not  power  to  vest  appointments 
elsewhere  directly  or  indirectly."  (13  Op. 
Atty.  Gen.,  516,  521.) 

Appointments  made  by  heads  of  bureaus 
in  accordance  with  statute  are  presumed  to 
be  made  with  approval  of  the  head  of  the  de- 
partment and  are  made  by  the  head  of  a  de- 
partment within  the  meaning  of  the  Constitu- 
tion. (Price  V.  Abbott,  17  Fed.  Rep.,  506; 
Frelinghuysen  v.  Baldwin,  12  Fed.  Rep.,  396; 
Stanton  v.  Wilkeson,  22  Fed.  Cas.  No.  13299.) 

"It  was  argued  that  the  appointment  of 
Hatch  was  illegal  because  it  was  made  by  the 
Secretary  of  the  Treasury  and  should  have 
been  made  by  the  superintendent  of  immi- 
gration. But  the  Constitution  does  not  allow 
Congress  to  vest  the  appointment  of  inferior 
officers  elsewhere  than  'in  the  President  alone, 
in  the  courts  of  law,  or  in  the  heads  of  depart- 
ments; '  the  act  of  1891  manifestly  contemplates 
and  intends  that  the  inspectors  of  immigra- 
tion shall  be  appointed  by  the  Secretary  of 
the  Treasury;  and  appointments  of  such  officers 
by  the  superintendent  of  immigration  could 
be  upheld  only  by  presuming  them  to  be  made 


Art.  II,  Sec.  2. 


Pt.  1.   THE  CONSTITUTION. 


Power  of  Appointment. 


with  the  concurrence  or  ap])roval  of  tlie  Secre- 
tary of  the  Treiuiury,  his  ollicial  head."  (Elkin 
D.  U.  S.,  142  r.  S.,G51.). 

" Congress  has  at  various  times  authorized 
appointments  independently  of  the  President, 
courts  of  law,  or  heads  of  clepartmenta  in  de- 
partmental bureaus,  in  the  customs  service, 
xn  the  internal-revenue  service,  in  the  land 
office,  and  in  some  other  branches  of  the  civil 
service.  Upon  this  legislation  it  may  be 
observed:  First,  that  in  some  of  these  cases, 
euch  as  those  of  deputy  marshals  and  deputy 
clerks,  the  persons  appointed  are  representa- 
tives of  the  officers  who  appoint  them  and  who 
in  some  particulars  are  responsible  for  their 
conduct;  and  perhaps  it  was  considered  by 
Congress  that  the  office  was  substantially  in 
the  principal.  Second,  that  it  was  no  doubt 
considered  by  Congress  that  some  of  the  per- 
sons whose  appointments  were  thus  pro\'ided 
for  were  not  ofiicers  in  the  constitutional  sense 
of  the  term.  IMany  employments  now  uni- 
versally held  to  be  oflices  were  not  evidently 
euch  at  the  outset,  but  with  the  growth  of  the 
Government  were  raised  to  that  rank.  Thus 
the  force  of  these  legislative  precedents  _  is 
somewhat  weakened .  Yet  it  can  not  be  denied 
that  some  of  them  take  for  granted  that  Con- 
gress is  absolute  in  the  matter  of  appointments. 
Such,  however,  is  not  the  constitutional  rule." 
(13  Op.  Atty.  Gen.,  516,  521.) 

' '  Congress  has  no  power  whatever  to  vest  the 
appointment  of  any  employee  coming  fairly 
■within  the  definition  of  an  inferior  officer  of  the 
Government  in  any  other  public  authority  but 
the  President,  the  heads  of  departments,  or  the 
judicial  tribunals."  (13  Op.  Atty.  Gen., 522; 
4  Op.  Atty.  Gen.,  164.) 

'Where  a  customs  officer  is  appointable  by  the 
collector  with  the  approbation  of  the  Secretary 
of  the  Treasurj'',  this  approbation  is  really  the 
appointment,  or  else  the  appointment  "is  null 
and  void  under  the  Constitution."  (4  Op. 
Atty.  Gen.,  164;  13  Op.  Atty.  Gen.,  522.) 

"So  the  Supreme  Court  has  held  that  a  clerk 
appointed  by  the  Assistant  Treasurer  ^\•ith  the 
approbation  of  the  Secretary  of  the  Treasury, 
was  'appointed  by  the  head  of  the  department 
■ndthin  the  meaning  of  the  constitutional  pro- 
vision on  the  subject  of  the  appointing  power.' 
(U.  S.  V.  Hartwell,  6  Wall.,  393,  394.)  _  Attorney 
General  Speed  thought  that  a  provision  in  the 
internal  revenue  act  of  ]\Iarch  3,  1865,  gi'ving  to 
assessors  the  appointment  of  assistant  assessors 
(13  Stat.,  469),  was  'clearly  unconstitutional' 
(11  Op.  Atty.  Gen.,  212),  and  such  appears  to 
have  been  the  opinion  of  Congress  itself,  when 
ita  attention  was  called  to  the  subject,  for  the 
act  of  January  15,  ]8G6,  repealed  that  provision 
and  gave  the  appointment  of  assistant  assessors 
to  the  Secretary  of  the  Treasury."  (13  Op. 
Atty.  Gen.,  516.) 

A  statute  pro^dding  for  the  a])pointment  of 
certain  officers  by  the  commandant  of  the 
Marine  Corj)8,  "being  in  derogation  of  the 
Constitution,  is  to  be  literally  construed  and 
on  its  terms."  Accordingly,  held  that  said 
statute  contemplated  merely  occasional  and 
transitory  ajtpointments  under  exceptional 
conditions.     (2  Op.  Atty.  Gen.,  77.) 


The  power  of  ai)pointment,  being  discre- 
tionary, can  not  be  delegated  by  the  head  of 
the  dei)artment,  though  he  may  inquire,  inves- 
tigate, and  determine  bytheaid  of  subordinates; 
hut  the  final  determination  must  be  his  act, 
and  not  theirs.     (21  pp.  Atty.  Geri.,  355.) 

The  power  of  appointment,  especially  where 
fixed  by  statute  in  the  head  of  the  department, 
can  not  be  delegated  to  subordinates  mthout 
authority  of  Congress.  (29  Op.  Atty.  Gen., 
273.) 

III.  Power  op  Congress. 

Congress  may  refuse  appropriations. — 
"The  power  of  a])])ointmeut  [of  an  agent  or 
commissioner  to  make  certain  investigations] 
results  from  the  obligation  of  the  executive 
department  of  the  Government  '  to  take  care 
that  the  laws  be  faithfully  executed' ;  an  obliga- 
tion imposed  by  the  Constitution  [Art.  II,  sec. 
3 1  and  from  the  authority  of  which  no  mere  act 
of  the  legislature  can  occasion  a  dis])ensation. 
Congress  may,  however,  indirectly  limit  the 
exercise  of  this  power  by  refusing  appropria- 
tions to  sustain  it,  and  thus  paralyze  a  function 
which  it  is  not  competent  to  destroy."  (4  Op. 
Atty.  Gen.,  248;  see  also  note  to  Art.  II,  sec.  3.) 

Congress  may  change  the  rank  or  pay  of 
an  officer  of  the  Army,  or  transfer  him  to  the 
retired  list,  but  it  "can  not  appoint  him  to  a 
new  and  different  office,  because  the  Constitu- 
tion vests  the  appointing  power  in  the  President 
with  the  advice  of  the  Senate,  or  iu  certain 
cases,  in  the  President  alone,  the  heads  of  the 
executive  departments,  or  the  courts  of  law." 
("Wood  V.  U.  S.,  15  Ct.  Cls.,  151;  affirmed  107 
tr.  S.,414;  see  also  Moser  v.  U.  S.,  42  Ct.  Cls., 
86.) 

The  rank  of  officers  of  the  Navy  is  not  to  be 
changed  except  by  and  with  the  advice  and 
consent  of  the  Senate.  (Act  June  17,  1878,  20 
Stat.,  144,  amending  sec.  1506,  R.  S.) 

Congress  can  not  control  appointing 
power. — "I  entertain  no  doubt  that  the  power 
of  appointment  of  officers,  the  duty  to  appoint 
whom  devolves  dii-ectly  on  the  President  and 
Senate  by  virtue  of  the  Constitution  itself,  is 
one  involving  a  discretion  not  entirely  to  be 
controlled  by  Congress.  This  power  is  from  a 
source  above  Congress,  namely,  the  Constitu- 
tion, and  can  not  be  destroyed  by  the  inferior 
power."  (30  Op.  Atty.  Gen.,  177,  in  which  it 
was  also  stated:  "In  this  opinion  it  is  only 
necessary  to  consider  ai^pointments  the  duty 
to  make  which  is  directly  imposed  on  the 
President  by  the  Constitution  itself;  no  dis- 
cussion of  the  other  class  [where  Congress 
designates  the  person  or  i)ersons  who  are  to 
appoint  to  a  given  office  created  by  it]  will  be 
entered  upon.  That  a  difference  exists  be- 
tween the  two  is  intimated  in  U.  S.  v.  Perkins, 
116  U.  S.,  483,  485.") 

"Nor  does  the  fact  that  Congress  is  given 
power  by  the  Constitution  'to  make  rules  for 
the  government  and  regulation  of  the  land  and 
naval  forces,'  enable  it  to  control  the  President's 
discretion  in  respect  of  those  appointments 
which  the  same  supreme  law  requires  him  to 
make.  The  general  power  to  regulate  such 
forces  can  not  be  taken  to  nullify  the  specific 


92 


Power  of  Appointment. 


Pt.l.   THE  CONSTITUTION. 


Art.  II,  Sec.  2, 


mandate  to  the  President  to  appoint  to  oflices 
where  Con2;ress  has  made  no  other  pro\dsion." 
(30 Op.  Atty.  Gen.,  177;  29  Op.  Atty.  Gen.,  254.) 

Conceding  that  Congress  has  power,  under  its 
constitutional  authority  to  make  rules  for  the 
government  and  regulation  of  the  land  and 
naval  forces,  to  regulate  appointments  to  oflices 
in  the  Army  and  NaA^,  such  power  can  not 
be  earned  to  the  designation  of  particular 
individuals  to  fdl  such  oflices,  without  imposing 
an  unconstitutional  restriction  upon  the 
appointing  power.  (18  Op.  Atty.  Gen.,  18; 
see  also  13  Op.  Atty.  Gen.,  516,  holding  that, 
"unless  controlled  by  authority,  I  should  not 
take  this  power  to  embrace  the  subject  of 
appointments";  and  see  8  Op.  Atty.  Gen.,  231, 
29  Op.  Atty.  Gen.,  254,  to  the  same  effect.) 

"It  may  now  be  considered  to  be  definitely 
settled  by  the  practice  of  the  Government,  that 
the  regulation  and  government  of  the  Army  in- 
clude, as  being  properly  within  their  scope,  the 
regulation  of  appointment  and  promotion  of 
officers  therein.  Hence,  as  the  Constitution 
expressly  confers  upon  Congress  authority  'to 
make  rules  for  the  government  and  regulation 
of '  the  Army,  that  body  may  impose  such  re- 
strictions and  limitations  upon  the  appointing 
power  as  it  deems  proper  in  regard  to  promo- 
tions or  appointments  to  any  and  all  vacancies 
in  the  Ajmy,  pro\T.ded  the  restrictions  and 
limitations  be  not  incompatible  with  the  exer- 
cise of  the  appointing  power."  (14  Op.  Atty. 
Gen.,  164.) 

"A  promotion  in  the  Army  is  an  appoint- 
ment to  a  higher  office  therein.  The  custom, 
so  far  as  I  am  aware,  has  always  been  to  nomi- 
nate the  promoted  officer  to  the  Senate  and 
subsequently  to  appoint  and  commission  him 
anew."     (30  Op.  Atty.  Gen.,  177.) 

Promotion  by  seniority  is  provided  for  in 
the  Army  by  section  1257,  Revised  Statutes, 
which  is  generally  similar  to  section  1458,  Re- 
vised Statutes,  requiring  that  in  the  Navy  "the 
next  officer  in  rank  shall  be  promoted  to  the 
I)lace  of  a  retired  officer,  according  to  the  estab- 
lished rules  of  the  service ;  and  the  same  rule  of 
promotion  shall  be  applied  successively  to  the 
vacancies  consequent  upon  the  retirement  of 
an  officer."  Also,  by  act  of  October  1,  1890  (26 
Stat.,  562,  sec.  3),  it  is  provided  that  "if  any 
officer  [of  the  Army]  fails  to  pass  a  satisfactory 
examination  and  is  reported  unfit  for  promotion, 
the  officer  next  below  him  in  rank,  having 
passed  said  examination,  shall  receive  the  pro- 
motion;" and  by  section  1480,  Revised  Statutes, 
pro\'ision  is  made  for  promotion  of  staff  officers 
of  the  Navy  by  seniority.  (As  to  constitu- 
tionality of  these  statutes,  see  notes  to  sees. 
1458  and  1480,  R.  S.  By  amendments  to  sees. 
1458  and  1480,  R.  S.,  promotion  by  selec- 
tion to  certain  grades  in  the  Navy  is  pro- 
vided for.) 

"I  do  not  think  *  *  *  that  the  act  of 
October  1,  1890,  makes  it  obligatory  upon  the 
President  to  promote  the  senior  officer  in  the 
grade  of  major  when  a  vacancy  exists  in  the 
grade  of  lieutenant-colonel  in  the  Quarter- 
master Corjis,  if  in  his  opinion  the  record  of  the 
officer  has  been  such  as  to  indicate  that  he  is 
disqualified  for  promotion."  (30  Op.  Atty. 
Gen.,  177._  The  Attorney  -  General  expressly 
limited  this  opinion  to  the  cases  of  officers  ap- 


pointed by  the  President  with  the  concurrence 
of  the  Senate,  under  direct  authority  of  the 
Constitution.  See  also  Ray  v.  Garrison,  42 
App.  D.  C,  34,  and  29  Op.  Atty.  Gen.,  254. 

"Respecting  promotions  in  the  Army,  I  have 
been  unable,  after  careful  examination,  to  find 
a  single  instance  where  the  power  of  Congress 
to  prescribe  the  rule  therefor  has  been  even 
doubted."  (14  0p.  Atty.  Gen.,  164,  Jan.  9, 1873.) 

In  view  of  section  1480,  Revised  Statutes,  as 
amended  by  act  of  February  27, 1877,  promotions 
of  staff  officers  of  the  Navy  should  be  made  by 
seniority;  accordingly,  the  claim  of  an  assistant 
surgeon,  who  has  passed  the  necessary  examina- 
tions, to  be  promoted  according  to  seniority,  is 
well  founded.     (17  Op.  Atty.  Gen.,  48.) 

"The  rules  which  existed  at  the  date  of  the 
act  of  1866  concerning  the  subject  of  appoint- 
ment and  promotion  in  the  Army  [including 
provisions  for  promotion  by  seniority]  became, 
as  it  were,  fixed;  and  ha\'ing  the  force  of  law 
they  must  be  taken  to  control  the  appointing 
power  in  regard  to  that  subject  until  Congress 
shall  othemnise  direct."  (14  Op.  Atty.  Gen., 
164.  The  act  mentioned  provided  that  the 
existing  Army  Regulations  should  "remain  in 
force"  until  future  action  on  the  part  of  Con- 
gress.) 

"In  filling  original  vaaincies  or  offices  in  the 
Army  newly  created,  the  opinion  was  advanced 
by  President  Monroe,  in  a  message  to  the  Senate 
dated  April  12,  1822,  that  'Congress  had  no 
right  under  the  Constitution  to  impose  any  re- 
straint bv  law  on  the  power  granted  to  the 
President,  so  as  to  prevent  his  making  a  free 
selection  of  proper  persons  for  these  offices  from 
the  whole  body  of  his  fellow-citizens.'  The 
Senate,  however,  disagreed  vnth.  that  opinion, 
maintaining  that,  as  the  Constitution  conferred 
upon  Congress  power  to  'make  rules  for  the 
government  and  regulation  of  the  Army,  that 
body  had  a  right  to  make  any  which  it  thought 
would  benefit  the  public  service  and  to  fix  the 
rule  both  as  to  promotions  and  appointments 
in  the  Army."  (14  Op.  Atty.  Gen.,  164;  but 
see  29  Op.  Atty.  Gen.,  254.) 

For  other  cases,  see  notes  to  sections  1458 
and  1480,  Revised  Statutes. 

Congress  can  not  designate  appointee. — 
A  bill  providing  that  ''the  President  be,  and 
he  is  hereby,  authorized  to  nominate  and  by 
and  with  the  advice  and  consent  of  the  Senate 
to  appoint "  a  designated  person  to  the  position 
of  colonel  in  the  Army,  is  beyond  the  power  of 
Congress  and  should  not  be  approved  by  the 
President  for  the  following  reasons:  First.  If 
the  bill  be  \iewed  as  making  it  imperative  upon 
the  President  to  appoint,  Congress  can  not  im- 
pose such  requirement  and  thus  virtually  as- 
sume a  power  (that  of  making  an  appointment 
to  office)  which  does  not  constitutionally  belong 
to  it;  and  if  it  be  regarded  as  advisory  only,  it 
is  without  the  essential  element  of  a  law,  and 
Congress  can  enact  nothing  but  that  which  is  to 
have  full  vigor  and  effect  of  a  law.  Second. 
The  authority  of  Congress  to  make  rules  for  the 
government  and  regulation  of  the  land  and 
naval  forces,  and  ' '  to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  execu- 
tion the  foregoing  powders,"  can  not  be  carried 
to  the  designation  by  law  of  a  particular  indi- 
vidual to  fill  a  military  office,  ■without  conflict- 


93 


Art.  II,  Sec.  2. 


Ft.l.   THE  CONSTITUTION.         Power  of  Appointment. 


ing  ^^•ith  the  power  of  app(nnt  incut  expressly 
given  the  President.  Third.  By  this  bill  Con- 
gress in  effect  creates  an  ollice  only  n]ion  con- 
dition tliat  it  is  to  he  filled  by  a  particular 
individual  named.  If  this  principle  were 
adopted  generally  in  the  creation  of  offices,  it 
woidd  obviously  result  in  constraining  the 
appointing  power  to  accept  the  co^dition  im- 
posed and  fill  the  offices  udth  the  indi^dd^lals 
designated  by  Congress,  thus  frustrating  the 
design  of  the  Constitution,  which  is  that  officers 
must  be  alone  selected  according  to  the  judg- 
ment and  will  of  the  person  and  body  in  whom 
the  powers  of  nominating,  ad\'ising,  and  con- 
senting, and  ap])ointing  are  vested.  "Regard- 
ing the  bill  as  imposing,  or  attempting  to  im- 
pose, upon  the  President  a  duty  to  appoint  the 
person  designated  therein,  it  is  without  any 
support  in  fhe  Constitution.  It  is  an  assump- 
tion of  an  implied  power  which  is  not  based 
upon  any  express  power,  and  clearly  invades 
the  constitutional  rights  of  the  President." 
(18  Op.  Atty.  Gen.,  18.  See  also  U.  S.  y.  Fer- 
reira,  13  How.,  40,  holding  unconstitutional  a 
law  which  directed  certain  Federal  judges  to 
act  as  commissioners  for  adjudication  of  claims: 
"If  they  are  to  be  regarded  as  officers,  holding 
offices  under  the  Government,  the  power  of 
appointment  is  in  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate,  and  Con- 
gress could  not  by  law  designate  the  persons  to 
fill  these  offices."  And  see  note  to  Art.  I,  sec.  7, 
clause  2.) 

"It  has  been  alleged,  I  think,  without  suffi- 
cient cause,  that  this  clause  is  unconstitutional 
because  it  nas  created  a  new  office  and  has  ap- 
pointed Capt.  Meigs  to  perform  its  duties.  If 
it  had  done  this,  it  woidd  have  been  a  clear 
question,  because  Congress  have  no  right  to  ap- 
point to  any  office,  this  being  specially  conferred 
upon  the  President  and  Senate.  It  is  evident 
that  Congress  intended  nothing  more  by  this 
clause  than  to  express  a  decided  opinion  that 
Capt.  Meigs  should  be  continued  in  the  employ- 
ment to  wMch  he  had  been  previously  assigned 
by  competent  authority."  (ilessages  and  Papers 
of  the  Presidents,  vol.  5,  p.  597.  See  further,  as 
to  this  case,  note  to  Art.  II,  sec.  2,  clause  1, 
"Powers  of  Congress  and  of  the  President.") 

Restoration  of  dismissed  oflicers. — 
"While  affirming  in  the  strongest  terms  its  opin- 
ion of  the  general  inexpediency  of  restoring  dis- 
missed officers,  the  department  also  relies  for  the 
protection  of  the  service  upon  the  unconstitu- 
tionality of  legislation  for  such  purposes,  as  set 
forth  in  the  message  of  July  2,  1884,  returning, 
without  executive  approval,  a  bill  contem- 
plating such  action.  (Annual  Report  Sec. 
Nav.,  1884,  p.  42;  see  note  to  Art.  I,  sec.  7, 
clause  2,  for  message  cited;  see  also  17  Op. 
Atty.  Gen.,  297.) 

"No  more  powerful  influence  for  the  demoral- 
ization of  the  naval  service  is  to  be  found  than 
that  which  results  from  the  restoration  of  officers 
dismissed  for  drunkenness  or  other  misconduct, 
or  for  demonstrated  incapacity.  Cases  of 
restoration  which  have  occurred  in  the  past 
would  hardly  have  been  possible  but  for  a 
lenient  spirit  in  the  service,  which,  although 
it  may  proceed  from  kindly  motives,  indicates 
an  indifference  on  the  part  of  officers  them- 
selves concerning  the  tone  of  the  Navy,  and  a 


disregard  of  their  imperative  duty  to  contribute 
by  evory  means  in  their  power  to  the  main- 
tenance of  a  high  standard  of  professional  char- 
acter. PubUc  opinion  should  not  only  sternly 
condemn  aU  officers  who  are  guilty  of  such  mis- 
conduct as  to  disqualify  them  from  service  on 
the  active  liat  of  the  Navy,  but  also  those  who, 
from  whatever  cause,  lend  themselves  to  efforts 
for  the  restoration  of  worthless  and  ejected 
membersof  their  prof  es.sion."  (Ann.  Rept.Sec. 
Nav.,  1884,  p.  42.) 

Additional  duties  imposed  on  officer. — 
"It  is  pointed  to  as  invalidating  the  act  that 
while  Congress  may  create  an  office  it  can  not 
appoint  the  officer.  As,  however,  the  two  per- 
sons whose  eUgibility  is  questioned  were  at  the 
time  of  the  passage  of  the  act  and  of  their  action 
under  it  already  officers  of  the  United  States 
who  had  been  heretofore  appointed  by  the 
President  and  confirmed  by  the  Senate,  we  do 
not  think  that  because  additional  duties  ger- 
mane to  the  offices  already  held  by  them  were 
devolved  upon  them  by  the  act  it  was  necessary 
that  they  should  be  again  appointed  by  the 
President  and  confirmed  by  the  Senate.  It  can 
not  be  doubted,  and  it  has  frequently  been  the 
case,  that  Congress  may  increase  the  power  and 
duty  of  an  existing  office  without  thereby  ren- 
dering it  necessary  that  the  incumbent  should 
be  again  nominated  and  appointed."  (Shoe- 
maker V.  U.  S.,  147  U.  S.,  282.  In  this  connec- 
tion see  sees.  255  and  1550,  R.  S.,  concerning  the 
designation  of  officers  as  disbursing  agents.) 

A\Tiile  Congress  can  not  appoint  to  office,  it 
may  authorize  a  particular  person  or  official  to 
perform  certain  acts.  (Kentucky  v.  Dennison, 
24  How.,  66,  holding  that  Congress  might 
authorize  but  not  compel  State  officers  to  per- 
form certain  duties  with  reference  to  the  inter- 
state extradition  of  fugitives  from  justice;  see 
also  act  Feb.  16,  1909,  sec.  15,  35  Stat.,  622, 
authorizing  arrest  of  deserters  from  the  Navy  by 
State  officers.) 

IV.  Statutory  Requirements  and  Quaxi- 

nCATIONS. 

Competitive  examinations  for  appoint- 
raent. — "A  rule,  whether  prescribed  by  Con- 
gress or  by  the  President  in  pursuance  of  au- 
thority given  by  Congress,  that  a  vacant  civil 
office  must  be  given  to  the  person  who  is  found 
to  stand  foremost  in  a  competitive  examina- 
tion, in  effect  makes  the  judges  in  that  exam- 
ination the  appointing  power  to  that  office  and 
thus  contravenes  the  constitutional  provisions 
on  the  subjectof  appointments.  *  *  *  Viewing 
the  appointing  power  conferred  in  the  Consti- 
tution as  a  substantial,  and  not  merely  a 
nominal  function,  I  can  not  but  believe  that 
the  judgment  and  will  of  the  constitutional 
depository  of  that  power  should  be  exercised  in 
every  appointment.  The  power  was  lodged 
where  it  is  because  the  makers  of  the  Constitu- 
tion, after  careful  consideration,  thought  that 
in  no  other  depositories  of  it  could  the  j  udgment 
and  the  will  to  make  proper  appointments  so 
certainly  be  found.  *  *  *  If  Congress  can  com- 
pel the  President  to  nominate  a  person  selected 
by  others,  it  can  compel  the  Senate  to  advise 
and  consent  to  the  nomination.  *  *  *  Advice 
and  consent  imply  an  exercise  of  judgment  and 


94 


Power  of  Appointment. 


Pt.  1.  THE  CONSTITUTION. 


Art.  II,  Sec.  2. 


will.  So  does  nomination.  So  does  appoint- 
ment. There  is  this  difference,  that  the  judg- 
ment and  will  of  the  Senate  can  regard  only 
the  person  proposed  by  the  President,  while 
there  is  no  similar  constitutional  limitation 
upon  his  judgment  and  will.  But  there  is  no 
right  in  Congress  to  constrain  either  to  adopt 
the  judgment  and  will  of  others.  Such  con- 
straint frustrates  the  constitutional  design, 
that  the  judgment  of  the  Senate  shall  revise 
the  judgment  of  the  President,  and  that  the 
judgment  of  both  shall  concur  in  filling  the 
office."     (13  Op.  Atty.  Gen.,  516.) 

Advisory  board. — "The  appointing  power 
may  avail  itself  of  the  judgment  of  others  as 
one  means  of  information.  For  want  of  per- 
sonal knowledge  of  candidates,  it  has  habit- 
ually done  so  from  the  foundation  of  the  Govern- 
ment. But  this  has  been  done  in  its  discretion. 
I  see  no  constitutional  objection  to  an  examin- 
ing board  rendering  no  imperative  judgments, 
but  only  aiding  the  appointing  power  with 
information.  A  legal  obligation  to  follow  the 
judgment  of  such  a  board  is  inconsistent  with 
the  constitutional  independence  of  the  appoint- 
ing power."     (13  Op.  Atty.  Gen.,  516.) 

Discretion  of  appointing  power. — The 
argument  has  been  made  that  the  unquestioned 
right  of  Congress  to  create  ofiices  implies  a 
right  to  prescribe  qualification  for  them.  This 
is  admitted.  But  this  right  to  prescribe  quali- 
fications is  limited  by  the  necessity  of  leaving 
scope  for  the  judgment  and  will  of  the  person 
or  body  in  whom  the  constitution  vests  the 
power  of  appointment.  (13  Op.  Atty.  Gen., 
516.) 

' '  It  has  been  suggested  that  the  appointments 
now  vested  in  the  coiuls  and  heads  of  depart- 
ments could  be  trangfeiTed  by  Congress  to  the 
President,  and  that  he  could  appoint  according 
to  the  result  of  a  competitive  test,  certified  by 
an  examining  board.  To  this  mode  of  selection, 
if  discretionary  with  the  President,  there  is  no 
constitutional  objection,  and  the  same  mode, 
under  a  similar  condition,  could  be  used  by  the 
\'arious  appointing  powers  under  present  laws; 
it  being  always  understood  that  the  appointing 
power  resorts  to  this  test  as  a  way  of  finding  out 
the  fittest  person  for  the  vacant  office,  and  is 
not  bound  to  abide  by  it  if  satisfied  that  the 
appointment  of  another  would  best  serve  the 
public  interests.  In  short,  the  test  of  a  com- 
petitive examination  may  be  resorted  to  in 
order  to  inform  the  conscience  of  the  appoint- 
ing power,  but  can  not  be  made  legally  con- 
clusive upon  that  power  against  its  own  judg- 
ment and  will."     (13  Op.  Atty.  Gen.,  516.) 

Unconstitutional  precedents. — "The  leg- 
islation of  the  country  from  an  early  period  has 
been  supposed  to  authorize  a  different  constitu- 
tional view  from  that  which  is  herein  expressed 
[see  preceding  paragraphs].  *  *  *  But 
when  a  congressional  construction  is  incon- 
sistent with  the  plain  meaning  of  the  Constitu- 
tion, aa  ascertained  by  authoritative  canons, 
that  meaning  can  not  be  overruled  by  such 
construction,  how  often  soever  repeated. 
*  *  *  It  more  concerns  us  to  ascertain  what 
is  the  constitutional  rule  than  to  learn  whether 
the  rule  has  always  been  observed.  Nineteen 
violations  of  the  Constitution  do  not  justify 
a   twentieth.     The    present    question,    in    its 


essence,  is  whether  the  appointing  power  be- 
longs to  Congress  or  to  those  named  in  the  Con- 
stitution as  the  depositories  of  that  power;  for 
if  Congress  can  ordain  that  an  office  shall  be 
filled  by  the  person  whom  the  examiners 
pronounce  the  fittest,  it  can  ordain  that  the 
office  shall  be  filled  by  the  person  whom 
Congress  judges  the  fittest,  and  may  directly 
appoint  its  favorite.  *  *  *  An  enactment 
that  the  President  shall  appoint  to  a  certain 
office  the  person  adjudged  by  the  examiners 
to  be  the  fittest  is  not  different,  in  constitu- 
tional principle,  from  an  enactment  that  he 
shall  appoint  John  Doe  to  that  office.  In 
neither  case  are  his  judgment  and  will  called 
into  exercise."     (13  Op.  Atty.  Gen.,  516.) 

Qualifications  in  general. — "Although  the 
appointing  power  alone  can  designate  an  indi- 
vidual for  an  office,  either  Congress,  by  direct 
legislation,  or  the  President,  by  authority  de- 
rived from  Congress,  can  prescribe  qualifica- 
tions and  require  that  the  designation  shall  be 
made  out  of  a  class  of  persons  ascertained  by 
proper  tests  to  have  those  qualifications;  and  it 
is  not  necessary  that  the  judges  in  the  tests 
should  be  chosen  by  the  appointing  power. 
Attorney  General  Legare  has  given  an  opinion 
ujion  a  question  similar  in  principle.  Dis- 
cussing the  subject  of  appointment  of  inspectors 
of  customs  by  the  Secretary  of  the  Treasury,  he 
considers  that  it  would  'be  a  fair  constitutional 
exercise  of  the  power  of  Congress  to  require  that 
the  Secretary  should  make  an  appointment  out 
of  a  certain  number  of  nominees  proposed  by  a 
collector.'"  (13  Op.  Attv.  Gen.,  516,  citing 
4  Op.  Atty.  Gen.,  164;  see  also,  26  Op.  Atty. 
Gen.,  502;  25  Op.  Atty.  Gen.,  341.) 

"It  has  been  argued  that  a  right  in  Congress 
to  limit  in  the  least  the  field  of  selection  implies 
a  right  to  caiTy  on  the  controlling  process  to  the 
designation  of  a  particular  individual.  But  I 
do  not  think  this  a  fair  conclusion.  Congress 
could  require  that  officers  shall  be  of  American 
citizenship  or  of  a  certain  age,  that  judges 
should  be  of  the  legal  profession  and  of  a  certain 
standing  in  the  profession,  and  still  leaA'e  room 
to  the  appointing  power  for  the  exercise  of  its 
own  judgment  and  will;  and  I  am  not  prepared 
to  affirm  that  to  go  further  and  require  that  the 
selection  shall  be  made  from  persons  found  by 
an  examining  board  to  be  qualified  in  such 
particulars  as  diligence,  scholarship,  integrity, 
good  manners,  and  attachment  to  the  Govern- 
ment would  impose  an  unconstitutional  limita- 
tion on  the  appointing  power.  It  would  still 
have  a  reasonable  scope  for  its  own  judgment 
and  will.  But  it  may  be  asked,  At  what  point 
must  the  controlling  process  stop?  I  confess 
my  inability  to  answer.  But  the  difficulty 
between  dra%ving  a  line  between  such  limita- 
tions as  are,  and  such  as  are  not,  allowed  by  the 
Constitution,  is  not  proof  that  both  classes  do 
not  exist.  In  constitutional  and  legal  inquiries 
right  or  wrong  is  often  a  question  of  degree.  Yet 
it  is  impossible  to  tell  precisely  where  in  the 
scale  right  ceases  and  wrong  begins.  *  *  * 
In  the  matter  now  in  question,  it  is  not  suppos- 
able  that  Congress  or  the  President  would  re- 
quire of  candidates  for  office  qualifications 
unattainable  by  a  sufficient  number  to  afford 
ample  room  for  choice."  (13  Op.  Atty.  Gen., 
516.) 


95 


Art.  II,  Sec.  2. 


Pt.  1.   THE  CONSTITUTION.         Power  of  Appointment. 


A  statute  prescribing  the  qualifications  neces- 
sary for  appointment  as  an  ofiit-er  of  the  Navy, 
"being  in  derogation  of  the  appointing  power 
phould  bo  strictly  construed  and  not  extended 
by  implication  to  include  anything  wliich  does 
not  clearh'  come  within  the  nifaning  of  the 
languairc  used."     CFile  8(522-2,  Feb.  10.  lOOS.) 

Nomination  of  inelig^ible. — The  President 
is  not  authorized  to  nominate  for  oflice  a  person 
ineligible  under  Article  I,  section  6,  clause  2, 
and  such  a  nomination,  although  confirmed  by 
the  Senate,  can  not  be  made  tlie  basis  of  an 
appointment  to  the  nominee,  even  when  his 
disqualification  ceases.  (170p.  Atty.Gen.,522.) 

Appointment  of  ineligible. — The  qualifica- 
tions of  a  candidate  are  presumed  to  have  been 
ascertained  and  found  satisfactory  previous  to 
his  appointment  to  oflice;  and  a  subsequent 
administration  can  not,  in  the  absence  of  fraud, 
deprive  the  incumbent  of  his  office,  although 
evidence  should  be  produced  that  he  did  not 
possess  the  statiitorv  qualifications  for  appoint- 
ment.    (28  0p.  Atty.  Gen.,  ISO.) 

"  The  law  presumes  that  persons  acting  in  a 
public  capacity  have  been  duly  appointed, 
and  their  acts  as  de  facto  officers  have  in  the 
interest  of  the  public  been  upheld,  thoush  in- 
valid as  to  them.  (Ball  v.  U.  S.,  140  U.  S., 
118,  129;  McDowell  v.  U.  S.,  159  ib.  596,  and 
authorities  therein  cited.)"  (Northrupt).  U.  S., 
45  Ct.  Cls.,  50.) 

V.  Power  of  Senate, 

"The  Senate  can  not  originate  an  ap- 
pointment; its  constitutional  action  is  con- 
fined to  a  simple  affirmation  or  rejection  of  the 
President's  nominations;  and  such  nominations 
fail  whenever  it  disagrees  to  them.  The  Senate 
may  suggest  conditions  and  limitations  to  the 
President,  but  can  not  vary  those  submitted  by 
him;  for  no  appointment  can  be  made  except 
on  his  nomination,  agreed  to  without  quaUfica- 
tion  or  alteration.  In  the  case  of  John  R.  Coxe, 
jr.,  nominated  for  lieutenant  in  the  Navy 
from  date,  and  confirmed  A\'ith  the  qualification 
that  he  shall  take  rank  next  after  Lieut. 
Elisha  Peck,  a  commission  can  not  properly 
issue."  (3  Op.  Attv.  Gen.,  188;  see  also  4  Op. 
Atty.  Gen.,  218.) 

"The  harmony  of  the  two  subordinate  branches, 
the  independence  of  the  President,  the  just 
weight  of  the  Senate,  and  the  useful  operation 
of  the  power  itself,  \\'ill  no  doubt  be  best  secured 
by  confining  each  branch  to  its  peculiar  func- 
tion and  not  allowing  either  to  deviate  from  the 
order  of  procedure  prescribed  by  the  Constitu- 
tion."    (3  Op.  Atty.  Gen.,  188.) 

The  confirmation  of  an  officer  nominated  for 
promotion  may  be  made  as  well  by  the  con- 
firmation of  his  successor  as  in  any  otlier  way 
provided  it  shows  the  assent  of  the  Senate  to 
such  promotion.     (23  Op.  Atty.  Gen.,  30). 

VI.  What  Constitutes  Appointment. 

"To  constitute  an  appointment  under 
this  article,  it  is  necessary,  first,  that  the  Presi- 
dent should  nominate  the  person  proposed  to  be 
appointed;  second,  that  the  Senate  should 
adATse  and  consent  that  the  nominee  should  be 


appointed;  and,  third,  that  in  pursuance  of  such 
nomination  and  such  advice  and  consent  the 
appointment  should  be  actually  made."  (4 
Op.  Atty.  Gen..  218.) 

The  Constitution  seems  to  contemplate 
thi'ee  distinct  operations:  First,  the  nomi- 
nation. This  is  the  sole  act  of  the  President 
and  is  completely  voluntary.  Second,  the 
appointment.  This  is  also  the  act  of  the  Presi- 
dent, and  is  also  a  voluntary  act,  though  it  can 
only  be  performed  by  and  with  the  advice  and 
consent  of  the  Senate.  Third,  the  commission. 
To  grant  a  commission  to  a  person  appointed 
might,  perhaps,  be  deemed  a  duty  enjoined  by 
the  Constitution.  "  lie  shall,"  says  that  instru- 
ment, "commission  all  the  oflicers  of  the 
United  States."  The  acta  of  appointing  the 
officer  and  commissioning  the  person  appointed 
can  scarcely  be  considered  as  one  and  the  same, 
since  the  power  to  perform  them  is  given  in  two 
separate  and  distinct  sections  of  the  Constitu- 
tion. The  appointment  being  the  sole  act  of 
the  President  must  be  completely  evidenced 
when  it  is  shown  that  he  has  done  everything 
to  be  performed  by  him.  Should  the  commis- 
sion, instead  of  being  evidence  of  an  appoint- 
ment, even  be  considered  as  constituting  the 
appointment  itself,  still  it  would  be  made  when 
the  last  act  to  be  done  by  the  President  was  per- 
formed, or,  at  furtherest,  when  the  commission 
was  complete.  The  last  act  to  be  done  by  the 
President  is  the  signature  of  the  commission. 
He  has  then  acted  on  the  advice  and  consent  of 
the  Senate  to  his  own  nomination.  The  time 
for  deliberation  has  then  passed.  He  has 
decided.  His  judgment  on  the  advice  and 
consent  of  the  Senate  concurring  with  his  nomi- 
nation has  been  made,  and  the  officer  appointed. 
This  appointment  is  evidenced  by  an  open, 
unequivocal  act;  and  being  the  last  act  required 
from  the  person  making  it,  necessarily  excludes 
the  idea  of  its  being,  so  far  as  respects  the  ap- 
pointment, an  inchoate  and  incomplete  trans- 
action.    (Marbury  v.  Madison,  1  Cranch,  137.) 

The  appointment  is  the  sole  act  of  the  ap- 
pointing power;  the  acceptance  is  the  sole  act  of 
the  officer,  and  is,  in  plain  common  sense,  pos- 
terior to  the  appointment.  As  he  may  resign, 
60  he  may  refuse  to  accept;  but  neither  the  one 
nor  tlie  other  is  capable  of  rendering  the  ap- 
pointment a  nonentity.  (Marbury  v.  Madison, 
1  Cranch,  137.) 

Acceptance  is  not  necessary  to  render 
the  appointment  complete;  accordingly 
where  a  candidate  was  not  above  the  maximum 
age  for  appointment  when  confirmed  by  the 
Senate,  the  statutory  requirement  was  fulfilled, 
and  he  can  legally  be  commissioned  and  accept 
the  appointment  after  passing  said  age.  (File 
8622-2,  Feb.  10,  1908.) 

Acceptance  is  necessary  to  vest  the  office  in 
the  appointee,  and  a  formal  acceptance  is  the 
evidence  wliich  in  the  public  ser\ice  generally 
it  has  been  customary  to  require.  (12  Op.  Atty. 
Gen.,  229.)  But  where  a  former  officer  of  the 
Army  asked  the  President  in  writing  to  rein- 
state him,  under  an  act  of  Congress,  and  the 
President  did  so,  no  further  formal  acceptance 
was  necessary.  (Collins  v.  U.  S.,  15  Ct.  Cls., 
31.)  Execution  of  the  oath  of  office  may  be  re- 
garded as  an  acceptance  of  the  appointment. 


96 


Removal  of  Oflicers. 


Pt.  1.   THE  CONSTITUTION. 


Art.  II,  Sec.  2. 


(8  Comp.  Dec,  521;  19  Op.  Atty.  Gen.,  284.) 
An  officer  need  not  formally  accept  a  promo- 
tion. Where  he  died  before  so  doing  accept- 
ance is  conclusively  presumed.  (12  Op.  Atty. 
Gen.,  229.) 

Date  of  appointment. — An  appointment 
made  to  take  effect  at  a  prior  date  is  inopera- 
tive prior  to  the  date  on  which  it  was  actually 
made  and  accepted.  (8  Comp.  Dec,  521;  20 
Comp.  Dec,  214,  citing  Morey  v.  U.  S.,  35  Ct. 
Cls.,  603,  Jackson  v.  U.  S.,  42  Ct.  Cls.,  39,  17 
Comp.  Dec,  452.  But  see  act  Mar.  4,  1913, 
37  Stat.,  892,  as  to  pay  of  officers  of  the  Navy 
on  promotion.) 

VII.  Pay  and  Oath  of  Officers. 

Pay  of  ofO-cers. — With  some  exceptions, 
Congress  may  at  any  time  make  altera- 
tions of  the  salaries  of  public  officers,  to  take 
effect  from  the  passage  of  the  act.  The 
only  contract  which  arises  upon  a  statute  estab- 
lishing a  salary  is  to  pay  the  incimibent  of  the 
office  that  salary  while  the  law  remains  in  force 
and  unchanged.  When  the  statute  is  repealed, 
superseded,  or  amended  so  as  to  alter  the  amount 
of  the  salary  for  the  time  being,  the  contract 
from  that  time  forward  is  correspondingly 
changed.  (Fisher  v.  U.  S.,  15  Ct.  Cls.,  329, 
citing  Patten's  Case,  7  Ct.  Cls.,  362;  Butler  v. 
Penn,  10  How.,  402;  Territory  i;.  Pyle,  1  Oreg., 
151;  Koontz  v.  Franklin,  76  Penn.,  156.)  The 
constitutional  exceptions  and  limitations  are 
that  the  compensation  of  the  President  shall 
neither  be  increased  nor  diminished  during  the 
period  for  which  he  shall  have  been  elected 
(Art.  II,  sec.  1),  and  that  the  judges,  both  of  the 
Supreme  and  inferior  comls,  shall  receive  for 
their  services  a  compensation  which  shall  not 
be  diminished  during  their  continuance  in 
office.  (Art.  Ill,  sec.  1.)  (Fisher  v.  U.  S.,  15 
Ct.  Cls.,  329.     See  also  note  to  sec.  167,  R.  S.) 

To  entitle  an  officer  to  recover  pay  claimed 
but  not  received,  he  must  prove  nis  case,  as 
the  compensation  annexed  to  a  public  office  is 
incident  to  the  title  to  the  office  and  not  to  the 
exercise  of  the  functions  of  such  office.  (Nor- 
thrup  V.  U.  S.,  45  Ct.  Cls.,  50;  as  to  right  of 
Government  to  recover  money  paid  by  mistake 
of  law  to  persons  who  were  not  officers  of  the 
United  States,  see  note  to  sec.  236,  R.  S., 
"VIII.  Reopening  of  Accounts.") 

Pay  of  disbursing  officer  may  commence 
prior  to  furnishing  bond — that  is,  upon  accept- 
ance of  appointment  or  entering  upon  duty — 
thesame  as  other  officers.  (16  Op.  Attv.  Gen., 
38;  U.  S.  V.  Eaton,  169  U.  S.,  346;  Glavey  v. 
U.  S.,  182  U.  S.,  595;  U.  S.  v.  Bradley,  10  Pet., 
343;  U.  S.  V.  Linn,  15  Pet.,  290.) 

Oath  of  ofla.ce. — The  fact  that  an  officer  is 
his  own  successor  does  not  relieve  him  from  the 
requirement  of  taking  the  oath  of  office  pre- 
scribed by  sections  1756  and  1757,  Revised 
Statutes.  The  law  "contemplates  that  the 
oath  shall  be  taken  at  every  new  appointment 
before  entering  upon  the  duty."  (19  Op.  Atty. 
Gen.,  219.)  _  . 

A  promotion  in  the  Army  is  an  appointment 
to  a  higher  office  therein.  (30  Op.  Atty.  Gen., 
177.) 

For  other  cases,  see  notes  to  sections  1458  and 
1757,  Revised  Statutes. 


VIII.  Power  of  Removal. 

May  be  removed  by  President. — "In  the 

absence  of  a  constitutional  provision  or  statu- 
tory regulation  it  would  seem  to  be  a  sound  and 
necessary  rule  to  consider  the  power  of  removal 
as  incident  to  the  power  of  appointment.  This 
power  of  removal  from  office  was  a  subject  much 
disputed  and  upon  which  a  gieat  diversity  of 
opinion  was  entertained  in  the  early  history  of 
this  Government.  This  related,  however,  to 
the  power  of  the  President  to  remove  officers 
appointed  with  the  concurrence  of  the  Senate, 
both  constituting  the  appointing  power.  No 
one  denied  the  power  of  the  President  and 
Senate,  jointly,  to  remove  where  the  tenure  of 
the  office  was  not  fixed  by  the  Constitution, 
which  was  a  full  recognition  of  the  principle 
that  the  power  of  removal  was  incident  to  the 
power  of  appointment.  But  it  was  very  early 
adopted  as  the  practical  construction  of  the 
Constitution  that  this  power  was  vested  in  the 
President  alone,  and  such  would  apj^ear  to  have 
been  the  legislative  construction  of  the  Consti- 
tution."    (Ex  parte  Hennen,  13  Pet.,  230.) 

Congress  may  be  empowered  to  fix  the  term  of 
an  officer  of  the  District  of  Columbia  so  that  he 
would  have  a  right  to  hold  during  said  term 
independently  of  the  Executive  and  without 
his  appointment  being  revocable  by  the  Presi- 
dent, as  was  indicated  by  Chief  Justice  Mar- 
shall in  Marbury  v.  Madison  (1  Cranch,  137). 
This  power  might  be  sustained  under  the  au- 
thority of  Congress  to  exercise  exclusive  legis- 
lation in  all  cases  whatsoever  over  the  seat  of 
government.  (Art.  I,  sec.  8,  clause  17.)  A  dis- 
tinction, however,  exists  as  to  other  officers  ap- 
pointed outside  of  such  District.  (Parsons  v. 
U.  S.,  167  U.  S.,  324.) 

The  President  has  the  power,  without  the  con- 
currence of  the  Senate,  to  remove  a  United 
States  attorney  who  was  appointed  for  a  fixed 
term  prior  to  the  expiration  of  such  term. 
(Paisons  V.  U.  S.,  167  U.  S.,  324.) 

By  section  1767,  Revised  Statutes  [repealed 
March  3,  1887],  it  was  provided  that  any  person 
appointed  to  office  by  and  with  the  advice  and 
consent  of  the  Senate  should  be  entitled  to  hold 
during  the  term  for  wliich  appointed,  "unless 
sooner  removed  by  and  with  the  advice  and 
consent  of  the  Senate,  or  by  the  appointment, 
with  the  Like  advice  and  consent,  of  a  successor 
in  his  place. ' '  Under  this  section  it  was  proper 
for  the  President  to  "execute  a  formal  act"  re- 
moving the  officer,  "  pursuant  to  the  resolution 
of  the  Senate  advising  and  consenting  to  his 
removal."  (12  Op.  Atty.  Gen.,  408.)  There- 
peal  of  this  section  was  intended  to  restore  to  the 
Piesident  the  power  of  removal  without  the  ad- 
vice and  consent  of  the  Senate,  if  indeed  that 
power  had  ever  been  taken  from  him.  (Parsons 
V.  U.  S.,  167  U.  S.,  327.) 

Military  and  naval  officers. — "The  vari- 
ous methods  by  which  persons  in  the  military 
or  naval  service  of  the  United  States  may  be 
involuntarily  separated  therefrom  are  embraced 
in  the  terms  discharged,'  'dismissed,'  and 
'wholly  retired.'  The  word  'discharged'  is 
properly '  limited  in  its  application  to  those  who 
have  enlisted  for  definite  periods'  (Emory  v. 
U.  S.,  19  Ct.  Cls.,  254,  262),  and  unless  qualified 
by  other  words — as,  for  example,  'dishonorable' 


97 


Art.  II,  Sec.  2. 


Pt.  1.   THE  CONSTITUTION. 


Removal  of  OflB.cers. 


discharge,  'bad-conduct'  discharge,  discharge 
'  wthout  honor ' — it  does  not  carry  with  it  any 
Btignia  of  disgrace  or  ])uni3hment.  '  Dismissed ' 
i.s  a  term  ])oculiarly  ap])lii'al)lo  to  officers  and  ia 
the  eijuivalont  vi  a  dishonorable  discharge. 
'Wholly  retired'  i.s  a  ])lirase  coined  for  the  pur- 
pose of  conveying,  with  reference  to  officers,  the 
Bame  idea  as  attaches  to  the  word  'discharged' 
when  a])])lied  to  enlisted  men.  The  meaning 
of  those  terms  and  the  importance  of  distin- 
guishing between  them  was  di.scussed  by  the 
Court  of  Claims  in  the  case  last  above  cited. 
*  *  *  It  is  evident  that  the  term '  discharged' 
as  used  in  the  act  of  1882,  now  under  considera- 
tion [])roviding  for  the  discharge  of  officers  who 
fail  morally  on  examination  for  ])romotion],  was 
intended  to  be  synonymous  Avith  the  worda 
'  wholly  retired, '  and  it  has  been  given  that  con- 
struction by  the  department  and  by  Congress." 
(File  21)260-1392,  June  29,  1911,  p.  25.) 

Statutory  restrictions  upon  President. — 
By  section  1229,  Re\'ise(l  Statutes,  it  was  pro- 
vided that  no  officer  in  the  military  or  naval 
service  shall  be  dismissed  in  time  of  peace 
excei)t  pursuant  to  the  sentence  of  a  court-mar- 
tial.^ This  provision  is  repeated  in  section  1624, 
Revised  Statutes,  article  36,  as  to  officers  of  the 
Navy,  and  in  section  1342,  Revised  Statutes, 
as  to  officers  of  the  Army.  These  enactments 
have  been  held  constitutional  in  so  far  as 
concerns  officers  whose  aj^pointments  were 
not  made  with  the  advice  and  consent  of  the 
Senate,  the  court  saying:  "Whether  or  notCon- 
gi-esscan  restrict  the  ])owerof  removal  incident 
to  the  ])ower  of  appointment  of  those  officers 
who  are  appointed  by  the  President  by  and 
with  the  advice  and  consent  of  the  Senate, 
under  the  authority  of  the  Constitution  (Art.  II, 
sec.  2),  does  not  arise  in  this  case  and  need  not 
be  considered.  We  hav^e  no  doubt  that  when 
Congress  by  law  vests  the  appointment  of  infe- 
rior officers  in  the  heads  of  departments  it  may 
limit  and  restrict  the  power  of  remov'al  as  it 
deems  best  for  the  public  interest.  The  consti- 
tutional authority  in  Congress  to  thus  vest  the 
appointment  implies  authority  to  limit,  restrict, 
and  regulate  the  removal  by  such  laws  as  Con- 
gress may  enact  in  relation  to  the  officers  so 
appointed.  The  head  of  a  dei)artment  has  no 
constitutional  ]irerogative  of  appointment  to 
offices  independently  of  the  legislation  of  Con- 
gress, and  by  such  legislation  he  must  be  gov- 
erned, not  only  in  making  appointments  but  in 
all  that  is  incident  thereto."  (Perkinsi).  U.  S., 
20  Ct.  Cls.,  438;  quoted  and  expressly  adopted 
by  the  Supreme  Court  in  U.  S.  v.  Perkins,  116 
U.  S.,  483;  compare  U.  S.  v.  Andrews,  240 
U.  S.,  90.) 

Where  an  enlisted  man  was  appointed  by  the 
President  as  a  warrant  officer  in  the  Navy, 
without  being  discharged  from  his  enlistment; 
Held,  that  it  would  not  be  legal  to  revoke  his 
appointment,  thereby  restoring  him  to  his 
former  status  as  an  enlisted  man,  and  then  dis- 
charge him  from  the  Navy  without  sentence  of 
court-martial.  That  this  would  be  doing  indi- 
rectly what  the  law  does  not  allow  to  be  done 
directly,  and  while  "most  desirable"  in  the 
case  presented,  was  beyond  the  power  of  the 
President.     (28  Op.  Atty.  Gen.,  325.) 

A  midshipman  at  the  Naval  Academy  is  not 
an  officer  of  the  Navy  within  the  meaning  of  sec- 


tions 1229  and  1 624  (art.  36)  of  the  Revised  Stat- 
utes, restricting  dismissals  from  the  Navy. 
"Whether  Congress  has  the  constitutional  jjower 
of  such  restricticm  is  not  necessary  to  decide  in 
thiscase."  (Weller  d.  U.  S.,  41Ct.Cls.,  324, dis- 
tinguishing U.  S.  V.  Perkins,  116  U.  S.,483, 
which  held  that  a  cadet  engineer  who  had  grad- 
uated from  the  Academy  and  had  served  in  the 
Navy  two  ycnxrs  imder  orders  was  an  offiu-er 
within  the  meaning  of  these  statiites.)  A  cadet 
at  West  Point  is  not  an  officer  within  the  mean- 
ing of  section  1 229,  Revised  Statutes.  (Ilartigan 
V.  U.  S.,  196  U.  S.,  169,  citing  on  general  subject 
Mullan  V.  U.  S.,  140  U.  S.,  240;  Shurtleff  v.  U.  S., 
189  U.S.,  311.) 

Whatever  power  the  President  may  have  to 
dismiss  civil  officers,  it  does  not  apply  to  officers 
of  the  Army  and  Navy,  who,  under  Revised 
Statutes,  section  1229,  shall  not  in  time  of  peace 
be  dismissed  except  upon  and  in  pursuance  of 
the  sentence  of  a  court-martial  or  in  commu- 
tation thereof.  (U.  S.  v.  Andrews,  240  U.  S., 
90.  See  note  to  sees.  1229  and  1624,  art.  36, 
R.  S.) 

It  is  well  settled  that  in  time  of  war  the 
President  has  the  authority,  under  the  Consti- 
tution and  laws,  to  dismiss  an  officer  of  the 
Army  or  Navy  from  the  service  for  any  cause 
which  in  his  judgment  either  renders  the 
officer  unsuitable  for,  or  whose  dismissal  would 
promote,  the  public  service.  (Brown  v.  Root, 
18  App.  D.  C..2.39.) 

As  to  right  of  officer  to  trial  by  court-martial 
after  dismissal,  see  section  1624,  art.  37,  Revised 
Statutes,  and  Wallace  v.  United  States  (55  Ct. 
Cls.,  396.) 

Power  of  President  and  Senate. — Sec- 
tion 1229,  Revised  Statutes,  does  not  deprive  the 
President  of  power,  by  and  with  the  advice  and 
consentof  the  Senate,  toremov^ea  commissioned 
officer  of  the  Army  or  Navy.  Accordingly,  the 
President.has  the  ]iower  to  remove  such  officers 
by  the  appointment  of  others  in  their  places, 
with  the  concurrence  of  the  Senate.  (Blake  v. 
U.  S.,  103  U.  S.,  227;  McElrath  v.  U.  S.,  102 
U.  S.,426;  Keyes  v.  U.  S.,  109  U.  S.,  336, 339; 
Quackenbush  v.  U.  S.,  177  U.  S.,  25;  24  Op. 
Atty.  Gen.,  89;  compare  15  Op.  Atty.  Gen., 
463;  16  Op.  Atty.  Gen.,  203.) 

A  nomination  made  by  the  President  to  the 
Senate  of  A  B  in  the  place  of  C  D,  removed, 
operates  to  remove  the  incumbent  upon  confir- 
mation of  the  Senate,  notwithstanding  that  no 
letter  of  dismissal  was  pre  viously  addressed  to 
C  D.  The  removal  takes  effect  upon  notifica- 
tion to  the  incumbent  by  letter  in  the  name  of 
the  President,  or  upon  arriv^al  of  his  successor  to 
enter  upon  duty.     (8  Op.  Atty.  Gen.,  379.) 

Reduction  of  Army. — The  President  was 
authorized  by  act  of  July  15, 1870,  providing  for 
the  reduction  of  the  Army,  to  "muster  out" 
officers  reported  unlit  for  duty;  and  this  author- 
ity was  not  limited  by  the  act  of  Jiily  17,  1866, 
now  embodied  in  section  1229,  Revised  Stat- 
utes. "The  purpose  of  the  act  17th  July,  1866, 
was  not  to  attach  a  life  tenure  or  element  of 
vested  right  to  the  olTice,  but  to  save  officers  '  in 
time  of  peace '  from  the  ignominy  of  a  hasty  and 
dishonorable  dismissal.  The  practical  results 
of  that  statute  in  connection  with  the  other  pro- 
visions of  law  bearing  upon  the  subject  are  these: 
That  in  time  of  war  the  President  may  dismiss 


98 


Recess  Appointments. 


Pt.  1.   TEE  CONSTITUTION. 


Art.  II,  Sec.  2. 


an  oflicer  from  the  service  at  any  moment  and 
for  any  cause;  that  in  time  of  peace  he  may  dis- 
miss him  for  cause  with  the  cooperation  of  a 
court-mai-tial,  or  remove  him  without  cause 
with  tlie  consent  of  tlie  Senate.  The  acts  of 
18G6  and  1870  are,  therefore,  neither  in  conflict 
nor  in  pari  materia.  They  spring  from  different 
provisions  of  the  Constitution.  The  one  is  an 
exercise  of  the  legislative  power  'to  make  rules 
for  the  government  and  regulation  of  the  land 
and  naval  forces';  the  other  of  the  power  'to 
raise  and  support  armies.'  The  former  relates 
to  the  punishment  or  protection  of  the  indi- 
vidual oflicer;  the  latter  to  the  Army  at  large. 
It  was  the  purpose  of  the  one  to  secure  to  each 
oflicer  a  trial  by  court-martial  in  all  cases  'in 
time  of  peace' ;  it  was  the  purpose  of  the  other  to 
reduce  the  Army  of  the  United  States  from 
45  to  25  regiments."  (Sherburne  v.  U.  S.,  16 
Ct.  Cls.,  491;  see  also  Street  v.  U.  S.,  24  Ct.  Cls., 
230;  Duryea  v.  U.  S.,  17  Ct.  Cls.,  24;  and  file 
262G0-1392,  June  29,  1911.) 

The  courts  will  not  grant  an  injunction 
to  prevent  the  removal  of  an  officer  from  the 
classified  civil  service  (White  v.  Berry,  171 
U.  S.,  366):  "The  appointment  to  an  official 
position  in  the  Government,  even  if  it  be 
simply  a  clerical  position,  is  not  a  mere  minis- 
terial act,  but  one  Involving  the  exercise  of 
judgment.  The  appointing  power  must  deter- 
mine the  fitness  of  the  applicant;  whether  or 
not  he  is  the  proper  one  to  discharge  the  duties 
of  the  position.  Therefore  it  is  one  of  those 
acts  over  which  the  courts  have  no  general 
supervising  power.  In  the  absence  of  specific 
provision  to  the  contrary,  the  power  of  removal 
is  incident  to  the  power  of  appointment.  *  *  * 
Unless,  therefore,  there  be  some  specific  pro- 


\'ision  to  the  cont'-ary,  the  .action  of  the  Secre- 
tary of  the  Interior  in  removing  the  petitioner 
from  office  on  account  of  inefficiency  is  beyond 
review  in  the  courts,  either  by  mandamus  to 
rein?tate  him  or  by  compelling  payment  of 
salary  as  though  he  had  not  been  removed." 
(Keimt).  U.  S.,  177  U.  S.,  290;  see  also  Brown  v. 
Root,  18  App.  D.  C,  239.) 

"Under  the  former  laws  the  courts  had  no 
power  to  review  the  action  of  the  head  of  a  de- 
partment in  discharging  an  employee  for  in- 
efficiency. Keim  v.  United  States,  177  U.  S., 
290;  Tayiori;.  Taft,  24  App.  D.  C,  95."  Whether 
that  rule  is  changed  by  act  August  23.  1912 
(37  Stat.  413),  not  decided,  as  that  act  has  not 
been  made  effective  by  the  action  of  the  Civil 
Service  Commission  as  therein  provided. 
(Persing  v.  Daniels,  43  App.  D.  C,  470.) 

Where  a  statute  specifies  certain  causes 
of  removal  from  office,  the  incumbent  is  en- 
titled to  a  hearing  prior  to  his  removal  (Reagan 
V.  U.  S.,  182  U.  S.,  419);  however,  the  specific 
mention  of  certain  causes  for  removal  is  not 
exclusive,  and  the  incumbent  of  an  office  may 
accordingly  be  removed  for  other  causes;  and 
in  the  case  of  removal  for  causes  not  specified 
in  the  statute  he  can  not  demand  a  hearing. 
(Shurtleff  v.  U.  S.,  189  U.  S.,  311.) 

IX.  Right  op  Officers  to  Resign. 

"The  resignation  of  an  oflS.cer  of  the 
Navy  is  not  effective  until  it  has  been  duly  ac- 
cepted by  the  President,  who  possesses  the 
power  of  compelling  the  officer  to  remain  in 
the  service  by  declining  to  accept  such  resig- 
nation." (File  26505-21  and  28,  citing  Edwards 
V.  U.  S..  103  U.  S.,  471;  sec.  1624,  R.  S.,  art. 
10;  file  26262-2146.) 


[Clause  3.  Eecess  appointments.]  ^Tlie  President  shall  have  Power  to  fill 
up  all  Vacancies  that  may  happen  during  the  Recess  of  the  Senate,  by  grant- 
ing Commissions  which  shall  expire  at  the  End  of  their  next  Session. 


Recess  of  Senate. — It  was  held  by  the 
Court  of  Claims,  May  26,  1884,  that  there  was 
"no  doubt "  that  a  vacancy  occurring  while  the 
Senate  wag  temporarily  adjourned  could  be 
and  was  legally  filled  by  appointment  of  the 
President  in  accordance  with  this  clause  of  the 
Constitution,  and  that  the  appointee  legally 
held  the  office  until  he  was  notified  of  his  rejec- 
tion by  the  Senate  at  its  next  regular  session 
established  by  law,  which  Ijegan  on  the  first 
Monday  of  the  following  December.  (Gould  v. 
U.  S.,  19  Ct.  Cls.,  593,  595.)  The  Attorney 
General,  thereafter  (Dec.  24,  1901),  expressly 
dissented  from  the  Court  of  Claims  decision, 
and  advised  the  President  that  a  vacancy  oc- 
curring during  a  temporary  adjournment  of 
the  Senate  could  not  be  filled  by  him  as  a 
recess  appointment,  but  that  such  appointments 
could  l)e  made  only  when  the  Senate  adjoiirned 
sine  die.  (23  Op.  Atty.  Gen.,  599;  affirmed 
29  Op.  Atty.  Gen.,  602;  modified,  33  Op.  Atty. 
Gen.,  20.) 

Vacancies  in  heads  of  Departments, 
bureaus,  etc.— The  President  has  the  right 
under  the  Constitution,  and  impliedly  under 
section  181,  Revised  Statutes,  to  make  a  tem- 
porary appointment,  designation,  or  assign- 
ment of  one  officer  to  perform  the  duties  of 


another  in  the  case  of  a  vacancy  caused  l)y 
death,  disability,  or  otherwise  during  the  recess 
of  the  Senate;  and  such  temporary  appointment, 
designation,  or  assignment  is  not  limited  by  law 
to  any  particular  period.  (25  Op.  Atty.  Gen., 
258.     See  sec.  181,  R.  S.,  and  note.) 

Form  of  appointment. — A  temporary  ap- 
pointment during  a  recess  of  the  Senate  need 
not  be  made  in  any  prescribed  form.  A  com- 
munication from  the  Secretary  of  War  informing 
the  recipient  that  he  has  been  aj)pointed  an 
officer  of  the  Army  liy  the  President  is  sufficient, 
and  answers  the  purpose  of  a  commission  if  a 
commission  is  necessary.  (O'Shea  v.  U.  S., 
28  Ct.  Cls.,  392.) 

Effect    of    temporary    appointinent. — 

Where  the  term  of  an  officer,  such  as  the  chief 
of  a  bureau  in  the  Navy  Department,  is  limited 
by  law  to  four  years  (see  sec.  421,  R.  S.),  the 
period  during  which  the  appointee  serves  under 
an  ad  interim  ajipointment  by  the  President  is 
not  counted,  but  the  four  years  do  not  com- 
mence to  run  until  the  appointment  has  been 
made  with  the  advice  and  consent  of  the  Senate, 
even  though  the  nomination  is  worded  to  take 
effect  from  the  date  of  the  ad  interim  appoint- 
ment.    (16  Op.  Atty.  Gen.,  648.) 


99 


Art.  II,  Sec.  3. 


Ft.  1.   THE  CONSTITUTION. 


Commissions. 


Teniporai-y  appointment  not  accepted. — 
A  recess  commiH.siou  which  was  iiul  accepted, 
and  was  iherel'ore  never  of  any  practical  effect, 
should  not  bo  accepted  after  the  ai)i>(iintnient 
has  been  conlirmed  by  the  Senate,  but  nliould  be 
<lisn>pir(kHl  and  a  perman(>nt  commission  issued 
in  the  usual  manner.  (File  8G22-2,  Feb.  10, 
1908;  eee  also  2  Op.  Atty.  Gen.,  336;  U.  S.  v. 
Kirkpatrick,  9  Wheat.,  721.) 

Vacancy  may  be  filled  during  recess, 
although  it  existed  while  Senate  was  in 
session. — "If  we  interpret  the  word  'happen' 
as  being  merely  equivalent  to  'happen  to  exist' 
(aa  I  ihink  we  may  legitimately  do),  then  all 
vacancies  which,  from  any  casualty,  nappen  to 
exist  at  a  time  when  the  Senate  can  not  be  con- 
sulted as  to  filling  them,  may  l)e  temporarily 
filled  by  the  President ;_ and  the  whole  pur])ose 
of  the  Constitution  is  completely  accom- 
plished." (1  Op.  Atty.  Gen.,  631;  see  also 
Matter  of  Farrow,  3  Fed.  Rep.,  115.)  Accord- 
ingly, the  President  has  power  to  fill  not  only 
vacancies  which  originated  in  the  recess  of  the 
Senate,  biit  also  vacancies  which  existed  while 
the  Senate  was  in  session.  (16  Op.  Atty.  Gen., 
522;  see  also  12  Op.  Atty.  Gen.,  449.) 

"Mr.  Wirt  in  1823,  Mr.  Taney  in  1833,  and 
Mr.  Legare  in  1841,  concur  in  oj^inion  that 
vacancies  first  occurring  during  the  session  of 
the  Senate  may  be  filled  by  the  President  in 
the  recess."     (12  Op.  Atty.  Gen.,  33.) 

"If  the  question  were  new,  and  now  for  the 
first  time  to  be  considered,  I  might  have  serious 
doubts  of  your  constitutional  power  to  fill  up 
the  vacancy,  by  temporary  appointment,  in  the 
recess  of  the  Senate.  But  the  question  is  not 
new.  It  is  settled  in  favor  of  the  power,  so  far  at 
least  as  a  constitTitional  question  can  be  settled, 
by  the  continued  practice  of  your  predecessors, 
and  the  reiterated  opinions  of  mine,  and  sanc- 
tioned, as  far  as  I  know  or  believe,  by  the 
unbroken  acquiescence  of  the  Senate."  (10 
Op.  Atty.  Gen.,  356.) 

Where  an  office  was  created  by  Congress,  to 
be  filled  by  and  with  the  advice  and  consent 
of  the  Senate,  but  was  not  filled  during  the 
session  in  which  it  was  created,  the  President 
has  power  to  make  a  recess  appointment 
thereto  after  the  Senate  adjourns.  (26  Op. 
Atty.  Gen.,  234;  see  also  19  Op.  Atty.  Gen., 
261;  Inre  Yancey,  28  Fed.  Rep.,  445;  compare 
file  6288-2,  Mar.  29,  1907.) 

Where  the  Senate  fails  or  refuses  to  confirm 
the  President's  nominee,  and  the  President 
durin<j  the  next  recess  of  the  Senate  makes  an 
appointment  thereto,  such  appointment  is 
valid.  (Matter  of  Farrow,  3  Fed.  Rep.,  112; 
12  Op.  Atty.  Gen.,  32.) 

"No  money  shall  be  paid  from  the  Treasury, 
as  salary,  to  any  person  appointed  during  the 
recess  of  the  Senate  to  fill  a  vacancy  in  any 


existing  oflice,  if  the  vacancy  existed  while 
the  Senate  was  in  session  and  was  by  law 
required  to  be  filled  by  and  with  the  advice 
and  consent  of  the  Senate,  until  such  appointee 
has  been  confirmed  bv  the  Senate."  (Sec. 
1761,  R.  S.;  26  Op.  Atty  ."Gen.  234;  30  Op.  Atty. 
Gen.,  314;  21  Comp.  Dec,  722;  but  eee  17 
Comp.  Dec,  95.) 

A  commission  issued  by  the  President  dur- 
ing a  recess  of  the  Senate  continues  in  force 
until  the  end  of  the  next  session,  even  though 
the  President's  appointee  is  in  the  meantime 
rejected  by  the  Senate.  (4  Op.  Atty.  Gen.,  30; 
2  Op.  Atty.  Gen.,  336;  In  re  Marshalship,  etc., 
20  Fed.  Rep.,  382.) 

A  vacancy  having  occurred  during  the 
session  of  the  Senate  and  the  Senate  having 
failed  to  confirm  an  appointment,  the  Presi- 
dent may  then  appoint  the  nominee  or  any 
other  person  to  fill  the  vacancy  by  temporary 
commission  to  expire  at  the  end  of  the  next 
session  of  the  Senate.  (30  Op.  Atty.  Gen.,  314, 
citing  1  Op.  Atty.  Gen.,  031;  2  Op.  Atty.  Gen., 
525;  3  Op.  Atty.  Gen.,  673;  4  Op.  Atty.  Gen., 
523;  7  Op.  Atty.  Gen.,  186;  10  Op.  Atty.  Gen., 
356;  12  Op.  Atty.  Gen.,  32;  12  Op.  Atty.  Gen., 
455;  14  Op.  Atty.  Gen.,  562,  16  Op.  Atty.  Gen., 
522;  26  Op.  Atty.  Gen.,  234.)  "As  several  of 
the  opinions  to  which  I  have  just  referred 
discuss  the  entire  subject  with  marked  thor- 
oughness, I  have  concluded  to  simply  state 
the  conclusion  at  which  my  predecessors 
arrived.  These  opinions  announce,  as  a  doc- 
trine of  administrative  law,  that  the  expression 
in  the  Constitution,  'all  vacancies  that  may 
happen  during  the  recess,'  signifies  'all  vacan- 
cies that  may  happen  to  exist  during  the  recess.' 
Furthermore,  these  opinions  concur  in  the 
general  conclusion  that  howsoever  a  vacancy 
happens  to  exist  it  may  be  filled  by  temporary 
appointment  of  the  President,  and  they  agree 
that  it  is  the  true  spirit  and  meaning  of  the 
Constitution  to  have  all  the  offices,  which 
Congress  indicates  to  be  needful  for  the  ends 
of  government  by  creating  them,  filled  pro- 
visionally rather  than  that  they  remain  vacant 
or  that  a  special  call  of  the  Senate  be  required 
for  the  purpose  of  confirmation."  (30  Op. 
Atty.  Gen.,  314.) 

"A^Tien  an  office  is  created  and  takes  effect 
during  a  session  of  the  Senate  and  a  subsequent 
session  of  Congress  passes  without  the  same 
being  filled ,  the  President  can  not  make  a  valid 
appointment  to  such  office  during  a  recess  of 
the  Senate."  (Schenck  v.  Peay,  21  Fed.  Cas. 
No.  12451.) 

Revocation  of  commission. — A  commis- 
sion as  lieutenant  commander  in  the  Navy, 
issued  during  a  recess  of  the  Senate,  can  not, 
after  acceptance,  be  revoked.  (File  4389, 
Nov.  18,  1907.) 


Section  3.  [Messages  to  Congress;  execution  of  laws;  commissioning  of 
officers;  etc.]  lie  shall  from  time  to  time  give  to  the  Congress  Information  of 
the  State  of  the  Union,  and  recommend  to  their  Consideration  such  Measures 
as  he  shall  judge  necessary  and  expedient;  he  may,  on  extraordinary  Occasions, 
convene  both  Houses,  or  either  of  them,  and  in  Case  of  Disagreement  between 
them,  with  Respect  to  the  Time  of  Adjournment,  he  may  adjourn  them  to 


100 


Coramissions. 


Pt.  1.  THE  CONSTITUTION. 


Art.  II,  Sec.  3. 


such  Time  as  he  shall  think  proper;  he  shall  receive  Ambassadors  and  other 
pubUc  Ministers;  he  shall  take  Care  that  the  Laws  be  faithfully  executed,  and 
shall  Commission  all  the  Officers  of  the  United  States. 


I.  Duty  to  See  that  Laws  are  Executed. 
II.  Duty  to  Commission  Officers. 


I.  DtJTY  to  See  that' Laws  are  Executed. 

Execution  of  laws. — "The  Constitution, 
section  3,  Article  II,  declares  that  the  President 
'shall  take  care  that  the  laws  be  faithfully  exe- 
cuted,' and  he  is  provided  with  the  means  of 
fulfilling  this  ol)ligation  by  his  authority  to 
commission  all  the  officers  of  the  L'nited  States, 
and  by  and  with  the  ad^'ice  and  consent  of  the 
Senate  to  appoint  the  most  important  of  them, 
and  to  fill  vacancies.  He  is  declared  to  be 
Commander  in  Chief  of  the  Army  and  Navy  of 
the  United  States.  The  duties  which  are  thus 
imposed  upon  him  he  is  further  enabled  to  per- 
form by  the  recognition  in  the  Constitution, 
and  the  creation  by  acts  of  Congress,  of  execu- 
tive departments.  *  *  *  These  aid  him  in 
the  performance  of  the  great  duties  of  his  office, 
and  represent  him  in  a  thousand  acts  to  which 
it  can  hardly  be  supposed  his  personal  attention 
is  called,  and  thus  he  is  enabled  to  fulfill  the 
duty  of  his  great  department,  expressed  in  the 
phrase  that  'he  shall  take  care  that  the  laws  be 
faithfully  executed.'  *  *  *  We  can  not 
doubt  the  power  of  the  President  to  take  meas- 
ures for  the  protection  of  a  judge  of  one  of  the 
courts  of  the  United  States,  who,  while  in  the 
discharge  of  the  duties  of  his  office  is  threatened 
with  a  personal  attack  which  may  probably 
result  in  his  death,  and  we  think  it  clear  that 
where  this  protection  is  to  be  afforded  through 
the  ci^"il  power,  the  Department  of  Justice  is 
the  proper  one  to  set  in  motion  the  necessary 
means  of  protection."  (In  re  Neagle,  135 
U.  S.,  1.) 

The  duty  of  the  President  under  this  clause 
is  not  limited  to  the  enforcement  of  acts  of 
Congress  or  of  treaties  of  the  United  States 
according  to  their  express  tenns,  but  includes 
the  rights,  duties,  and  obligations  growing  out 
of  the  Constitution  itself,  our  international  rela- 
tions, and  all  the  protection  implied  by  the 
nature  of  the  government  under  the  Constitu- 
tion.    (In  re  Neagle,  135  U.  S.,  1.) 

The  Secretary  of  War  is  authorized  by  this 
section  to  appoint  an  agent  or  commissioner  to 
conduct  certain  investigations,  although  such 
agent  or  commissioner  can  not  be  paid  for  his 
serAdcea  but  must  await  the  action  of  Congress, 
in  view  of  a  statute  prohibiting  any  payments 
to  agents  or  commissioners  thereafter  appointed, 
except  out  of  specific  appropriations  to  be  made 
by  law.  "The  power  of  appointment  results 
fi-om  the  obligation  of  the  executive  department 
of  the  Government  'to  take  care  that  the  laws 
be  faithfully  executed ; '  an  obligation  imposed 
by  the  Constitution  and  from  the  authority  of 
which  no  mere  act  of  the  legislature  can  occa- 
sion a  dispensation.  Congress  may,  however, 
indirectly  limit  the  exercise  of  this  power  by 
refusing  ai:)propriations  to  sustain  it,  and  thus 
paralyze  a  function  which  it  is  not  competent 


to  destroy.  This  would  seem  to  be  the  purpose 
of  the  act  of  August  26,  1842,  which  may 
be  regarded  as  an  exposition  of  the  legislative 
will,  and  to  which,  except  in  cases  of  command- 
ing exigency,  I  think  the  executive  action 
should  be  conformed ;  for  whilst  it  is  quite  clear 
that  the  power  of  appointment  is  unimpaired 
by  the  acts  of  Congress  referred  to,  it  is  equally 
obAdous  that  the  intention  of  those  by  whom 
they  were  passed  was  to  discountenance  its 
ordinary  execution."     (4  Op.  Atty.  Gen.,  248.) 

It  is  one  of  the  highest  duties  of  the  President 
to  take  care  that  the  laws  be  faithfully  executed, 
and  consequently  that  they  may  not  be  abused 
by  any  officer  under  his  authority  or  control,  to 
the  grievance  of  any  citizen.  Accordingly,  the 
President  has  constitutional  power  to  order  the 
discontinuance  of  a  suit  by  the  Attorney  General 
or  his  subordinates.     (2  Op.  Atty.  Gen.,  53.) 

If  a  district  attorney  should  refuse  to  obey  the 
President's  order,  the  prosecution,  while  he 
remained  in  office,  would  still  go  on ;  in  such  case 
the  removal  of  the  disobedient  olScer  and  the 
substitution  of  one  more  worthy  in  his  place 
would  enable  the  President,  thi'ough  him, 
faithfully  to  execute  the  law;  and  it  is  for  this, 
among  other  reasons,  that  the  power  of  remov- 
ing the  district  attorney  resides  in  the  Presi- 
dent.    (2  Op.  Atty.  Gen.,  482.) 

"The  only  power,  therefore,  which  the 
President  possesses  where  the  'life,  liberty,  or 
property '  of  a  private  citizen  are  concerned,  is 
the  power  and  duty  prescribed  in  the  third 
section  of  the  second  article,  which  requirea 
'that  he  shall  take  care  that  the  laws  shall  be 
faithfully  executed.'  He  is  not  authorized  to 
execute  them  himself,  or  through  agents  or 
officers,  civil  or  military,  appointed  by  himself; 
but  he  is  to  take  care  that  they  be  faithfully 
carried  into  execution  as  they  are  expounded 
and  adjudged  by  the  coordinate  branch  of  the 
Government  to  which  that  duty  is  assigned  by 
the  Constitution.  It  is  thus  made  his  duty  to 
come  to  the  aid  of  the  judicial  authority  if  it 
shall  be  resisted  by  a  force  too  strong  to  be  over- 
come without  the  assistance  of  the  executive 
arm.  But  in  exercising  this  power  he  acts  in 
subordination  to  judicial  authority,  assisting  it 
to  execute  the  process  and  enforce  its  judg- 
ments." (Ex  parte  Merryman,  17  Fed.  Cas. 
No.  9487.) 

"The  President  has,  under  the  Constitution 
and  laws,  certain  duties  to  perform,  among 
these  being  to  take  care  that  the  laws  be  faith- 
fully executed;  that  is,  that  the  other  executive 
and  administrative  officers  of  the  Government 
faithfully  perform  their  duties;  but  the  statu  tea 
regulate  and  prescribe  these  duties,  and  he  has 
no  more  power  to  add  to  or  subtract  from  the 
duties  imposed  upon  subordinate  executive 
and  administrative  officers  by  the  law  thaxi 
those  officers  have  to  add  or  subtract  from  his 
duties."     (19  Op.  Atty.  Gen.,  686.) 

"It  was  urged  at  the  bar  that  the  Postmaster 
General  was  alone  subject  to  the  direction  and 
control  of  the  President  with  respect  to  the 


101 


Art.  II,  Sec.  3. 


Pt.  1.   THE  CONSTITUTION. 


Commissions, 


execution  of  the  duty  imposed  upon  him  by 
this  hiw,  and  this  nf;;ht  of  tlie  President  is 
chunu'd  lis  growing  out  of  the  obligation  im- 
posed upon  liim  by  the  Constitution  to  take  care 
that  tlie  laws  be  fiuthfully  executed.  This  is 
8  doctrine  that  can  not  receive  the  sanction  of 
this  court.  It  would  be  vesting  in  the  Presi- 
dent a  dispen.sing  power  W'iii<h  has  no  counte- 
nance for  its  support  in  any  part  of  the  Constitu- 
tion and  is  asserting  a  principle  which,  if  car- 
ried out  in  its  results  to  all  cases  falling  witliin 
it,  would  be  clothing  the  President  with  a 
power  entirely  to  control  the  legislation  of 
Congress  and  paralyze  the  administration  of 
justice."     (Kendall  v.  U.  S.,  12  Pet.,  524.) 

II.  Duty  to  Commission  Officers. 

Commissioning  officers. — "Hereafter  the 
commissions  of  all  ofhcers  under  the  direction 
and  control  of  the  Secretary  of  the  Treasury,  the 
Secretary  of  War,  the  Secretary  of  the  Navy, 
and  the  Secretary  of  Agriculture  shall  be  made 
out  and  recorded  in  the  respective  departrdents 
under  which  they  are  to  serve,  and  the  depart- 
ment seal  affixed  thereto,  any  laws  to  the  con- 
trary notwithstanding:  Provided,  That  the  said 
seal  shall  not  be  affixed  to  any  such  commis- 
sion before  the  same  shall  have  been  signed  by 
the  President  of  the  United  States."  (Act 
Mar.  28,  1896,  29  Stat.,  75.) 

"The  President  is  authorized  to  make  out 
and  deliver,  after  the  adjournment  of  the  Sen- 
ate, commissions  for  all  officers  whose  appoint- 
ments have  been  ad\-lsed  and  consented  to  by 
the  Senate."     (Sec.  1773,  R.  S.) 

It  is  not  necessary  for  the  President  personally 
to  sign  the  commissions  of  officers  appointed  by 
him  without  the  advice  and  consent  of  the 
Senate,  but  such  commissions  may  be  issued 
by  the  Secretary'  of  the  Navy .  However,  "  it  is 
proper"  that  the  commission  should  declare 
the  act  to  be  an  act  of  the  President,  performed 
bv  the  head  of  the  department  as  his  represen- 
tative. (22  Op.  Attv.  Gen.,  82;  file  28687-22, 
June  14,  1917;  22724-34,  July  28,  Aug.  1,  and 
Aug.  6,  1917.) 

Form  of  commission,  where  appointment  is 
made  during  recess  of  the  Senate.  (See  note  to 
Art.  II,  6ec.2,clause3,  "Form of  appointment.") 

To  grant  a  commission  to  a  person  appointed 
might,  perhaps,  be  deemed  a  duty  enjoined  by 
the  Constitution.  "Heshall,"  says  that  instru- 
ment, ' '  commission  all  the  officers  of  the  United 
States."     (Marbury  v.  Madison,  ICranch,  137.) 

The  commission  is  not  necessarily  the  appoint- 
ment, though  conclusive  evidence  of  it.  (Mar- 
bury  r.  Madison,  1  Cranch,  137;  see  note  to  Art. 
II,  sec.  2,  clause  2.)_  The  acta  of  appointing  the 
officer  and  commissioning  the  person  appointed 
can  scarcely  be  considered  as  one  and  the  same, 
since  the  power  to  perform  them  is  given  in  two 
separate  and  distinct  sections  of  the  Constitu- 
tion. (Marbury  v.  Madison,  1  Cranch,  137; 
25  Op.  Attv.  Gen.,  292;  Quackenbush  v.  U.  S., 
177  U.S.,  27.) 

Appointments  by  the  President  are  always 
evidenced  by  commissions.  (19  Op.  Atty. 
Gen.,  589,  592.) 

Retired  officers  advanced  in  rank  "sliall  be 
entitled  to  and  shall  receive  commissions  in 
accordance  with  such  advanced  rank."     (Act 


Mar.  4,  1911,  36  Stat.  1354;  see  file  26509-33, 
Mar.  24,  1910.) 

Advancement  in  rank  only. — An  assistant 

f)aymaster  advanced  in  rank  from  ensign  to 
ieutcnant  (junior  grade),  without  receiving  an 
advancement  in  grade,  need  not  be  commis- 
sioned, as  this  is  merely  an  advancement  in 
rank,  without  change  in  office,  which  remains, 
as  before,  that  of  assi.'^tant  paymaster.  (File 
26254-542;  see  also  19  Op.  Atty.  Gen.,  169,  173; 
20 Op.  Atty.  Gen.,  358;  16  Op.  Atty.  Gen.,  652; 
25  Op.  Atty.  Gen.,  185,  313;  Cloud  v.  U.  S.,  43 
Ct .  Cls.,  69;  17  Comp.  Dec,  255;  16  Comp.  Dec, 
662;  sec  1506,  R.S.,  as  amended;  file  28687^:1, 
Sept.  16,  1916;  4649-02,  July  17,  1902,  noted 
under  sec  421,  R.  S.;  28687-16,  Dec.  30,  1916; 
26254-2171,  Jan.  16,  1917;  22  Op.  Atty.  Gen., 
480;  but  see  file  1282-01 ,  Mar.  19, 1901,  in  which 
the  Secretary  of  the  Navy  directed  that  staff 
officers  advanced  in  rank  without  advancement 
in  grade  or  change  of  office,  should  be  nomi- 
nated, and  after  confirmation  by  the  Senate, 
commissioned  with  the  higher  rank,  thereby 
expressly  changing  the  "long  established  cus. 
tom  of  the  department  to  advise  officers  of  th 
staff  corps  of  the  Navy  of  the  attainment  of  e 
higher  rank  in  their  grade  by  a  letter  of  notifia 
cation  only."  See  also  file  28687-4:1,  Sept- 
16,  1916,  holding  that  former  practice  might 
legally  be  reverted  to;  and  file  28687-22,  June 
14,  1917,  to  same  effect.  And  see  Op.  Atty. 
Gen.,  Dec.  27,  1916,  file  28687-4:8,  stating  chat 
rank  may  be  conferred  by  mere  notification 
without  confiiTnation  or  commission.) 

Governors  of  Guam  and  Tutuila. — Naval 
officers  appointed  by  the  Secretarj-  of  the  Navy, 
under  the  direction  of  the  President,  as  gover- 
nors of  the  islands  of  Guam  and  Tutuila,  may 
be  issued  commissions  by  the  President  in  the 
usual  form,  such  commissions  being  desirable 
"for  administrative  reasons,"  and  merely  evi- 
dence of  appointments  already  made  under  the 
fiower  of  the  President  as  Commander  in  Chief. 
25  Op.  Atty.  Gen.,  292.) 

Withliolding  commission. — "Even  after 
confirmation  by  the  Senate,  the  President  may 
in  his  discretion  withhold  a  commission  from 
the  applicant.  And  until  a  commission,  signi- 
fying that  the  purpose  of  the  President  has  not 
been  changed,  the  appointment  is  not  fully 
con.mmmated."  (4  Op.  Atty.  Gen.,  218,  citing 
Marbury  v.  Madison,  1  Cranch,  137;  see  also 
12  Op.  Atty.  Gen.,  306;  13  Op.  Attv.  Gen.,  44; 
file  4996,  June  1,  1906;  file  26251-2833,  Mar.  31, 
1910.) 

The  President  is  not  required  to  issue  a  com- 
mission to  an  officer  who  had  been  recom- 
mended for  trial  by  general  court-martial  for 
shortages  in  his  accounts  and  indebtedness,  and 
who  thereafter  presented  his  resignation,  which 
was  accepted  "for  the  good  of  the  service,"  in 
the  meantime  having  been  nominated  by  the 
President  for  promotion,  which  nomination  was 
confirmed  by  the  Senate,  but  whose  commis- 
sion had  not  been  signed  by  the  President. 
(File  26251-2833.) 

But  if  the  commission  be  signed  and  sealed, 
and  the  officer  be  of  a  class  not  removable  by 
the  President,  in  that  case  the  President's 
right  over  the  office  no  longer  exists.  The  right 
of  the  appointee  thereto  is  vested,  his  commis- 
sion irrevocable.     (12  Op.  Atty.  Gen.,  304.) 


102 


Coraniissions. 


Pt.  1.   THE  CONSTITUTION. 


Art.  II,  Sec.  3. 


A  commission  should  not  be  issued  for  senti- 
mental reasons  where  no  services  are  to  be 
rendered  under  it,  the  appointment  having 
been  declined  after  confirmation  by  the 
Senate.  (4  Op.  J.  A.  G.,  443,  Oct.  19,  1893; 
quoted,  file  26251-2833,  Mar.  31,  1910;  see  also 
file  8622-2,  Feb.  10,1908.) 

When  the  Senate,  in  confirming  the  nomina- 
tion of  a  candidate  for  lieutenant  in  the  Navy, 
specifies  that  he  shall  take  rank  next  after  a 
designated  officer,  thus  varying  the  terms  of 
the  nomination,  a  commission  can  not  properly 
issue.  (3  Op.  Atty.  Gen.,  188;  see  also  4  Op. 
Atty.  Gen.,  218;  and  see  note  to  Art.  II,  sec.  2, 
clause  2.) 

When  the  President  nominates  for  office  a 
person  ineligible  thereto,  under  Article  I,  sec- 
tion 6,  clause  2,  although  the  Senate  confirms 
the  nomination,  it  can  not  be  made  the  basia  of 
an  appointment  even  when  liis  disqualification 
ceases.     (17  Op.  Atty.  Gen.,  522.) 

Erroneous  commission. — A  commission 
issued  to  an  officer  who  had  not  qualified  for 
promotion,  but  was  nominated  and  confirmed 
through  error,  is  null  and  void.  (File  26260- 
1193:1,  Jan.  11,  1912;  see  also  11  Comp.  Dec,  43; 
file  26260-110:1,  June  21,  1909;  file  26260-132; 
file  26254-645,  Comp.  Dec.  Feb.  21,  1911,  120 
S.  and  A.  Memo.  1684;  file  26254-482,  Comp. 
Dec,  Sept.  15, 1910;  file 26254-655,  Comp.  Dec, 
Feb.  28,  1911;  file  26254-654,  Comp.  Dec,  Feb. 
27,  1911,  120  S.  and  A.  Memo.,  1687;  17  Comp. 
Dec,  611;  and  see  file  5172-93,  Apr.  16,  1907, 
file  26254-286^0,  May  27,  1909;  15  Comp.  Dec, 
584.) 

The  President  and  Senate,  by  nomination 
and  confirmation,  may  correct  an  error  in  the 
date  of  a  military  commission.  (3  Op.  Atty. 
Gen.,  307;  8  Op.  Atty.  Gen.,  223.) 

Where  a  militia  officer  mustered  into  the  serv- 
ice of  the  United  States  had  been  erroneously 
commissioned  by  the  governor  of  his  State,  it 
was  proper  for  the  governor  to  issue  him  a 
second  commission  to  correct  the  error,  and 
such  new  commission  being  in  accordance  with 
the  law  of  the  State,  would  relate  back  to  the 
time  when  he  entered  the  service  of  the  United 
States.     (Nutt  v.  U.  S.,  41  Ct.  Cls.,  368.) 

Date  of. — WTiere  an  officer  is  transferred  from 
the  retired  list  to  the  active  list  by  special  act 
of  Congress,  without  stating  the  position  he  is 
to  take  on  the  active  list,  the  only  appropriate 
date  which  can  be  fixed  for  his  restoration  is 
the  date  of  the  act  itself.  (File  2871-7,  Oct.  11, 
1907.) 

When  naval  officers  are  commissioned  on  the 
same  date,  the  numbering  of  the  commissions  to 
determine  the  relative  rank  of  the  officers,  is, 
in  the  absence  of  statutes,  a  matter  of  practice 
in  the  Navy  Department,  and  not  governed  by 
law.  (1  Op.  Attv.  Gen.,  325;  file  28026-1209:4, 
Oct.  25,  1915;  11130-27,  Aug.  26,  1915;  Toulon 
V.  U.  S.,  52Ct.  Cls.  333.)_ 

In  cases  where  appointing  power  did  not  fill 
a  vacancy  at  the  time  it  was  created,  or  the 
person  at  the  time  was  ineligible  for  appoint- 
ment, and  the  department  acted  promptly, 
it  is  not  deemed  advisable  to  antedate  the 
commission.     (File  9466-03.) 

Where  the  filling  of  vacancies  is  discretionary 
with  the  President,  the  commissions  need  not 


be  made  to  date  from  the  occiurence  of  the 
vacancy  unless  the  appointing  power  so  decides. 
(File  7151-03;  see  also  file  3089-04,  9  Comp. 
Dec.  612.) 

Where  new  offices  are  created  by  law,  and  it 
is  provided  therein  that  no  person  shall  be 
appointed  until  he  has  been  found  qualified  by 
examination,  the  commissions  issued  should  not 
bear  a  date  prior  to  that  when  the  candidate 
qualified  by  examination.  (File  5460-72:1, 
May  19,  1915;  see  also  14  Op.  Atty.  Gen.  192. 
On  general  subject  of  antedating  commissions 
see  19  Ct.  Cls.  145, 17  Op.  Atty.  Gen.,  319,  19 
Ct.  Cls.  137. 

An  ensign  who  failed  on  examination  for 
promotion,  was  suspended,  and  after  six  months 
qualified  and  was  promoted,  should  not  be 
given  in  his  commission  the  same  date  as  that 
on  which  he  would  have  been  promoted  had  he 
been  found  qualified  upon  his  first  examina- 
tion, as  this  would  entitle  him  to  pay  for  a 
period  of  six  months  during  which  he  was  not 
performing  the  duties  of  the  higher  grade  and 
had  demonstrated  his  incompetency  therefor. 
File  26266-475,  May,  1915;  see  act  Mar.  4, 
913,  37  Stat.,  892.) 

When  the  term  of  an  officer,  such  as  the 
chief  of  a  biu-eau  in  the  Navy  Department,  is 
limited  by  law  to  four  years  (see  sec.  421,  R.  S.), 
the  period  during  which  the  appointee  serves 
under  ail  ad  interim  appointment  by  the  Presi- 
dent is  not  counted,  but  the  four  years  do  not 
commence  to  run  until  the  apj^ointment  has 
been  made  with  ihe  advice  and  consent  of  the 
Senate,  even  though  the  nomination  is  worded 
to  take  effect  from  the  date  of  the  ad  interim 
appointment.     (16  Op.  Atty.  Gen.,  656.) 

For  other  cases,  see  note  to  section  1458,  Re- 
vised Statutes. 

Changes  in  date. — See  above,  "Erroneous 
commission." 

While  an  officer  might  have  been  promoted 
to  the  grade  of  captain  in  the  Marine  Corps 
when  a  vacancy  in  that  grade  occurred,  such 
action  was  discretionary  with  the  appointing 
power;  and  since  such  action  was  not  taken, 
but  the  officer  was  promoted  and  commissioned 
as  of  a  later  date,  there  is  no  law  or  regulation 
entitling  him  to  have  his  commission  date  from 
the  occurrence  of  tlie  vacancy.     (File  2518-04.) 

The  statutes  and  regulations  governing  pre- 
cedence having  once  been  determined  in  any 
particular  case,  considerations  of  repose  inter- 
vene and  become  important.  Disturbance  of 
the  Navy  lists  is  prejudicial  to  the  service,  and 
should  not  be  sanctioned  where  doubt  exists 
respecting  the  appropriate  action,  and  where  a 
considerable  length  of  time  has  elapsed.  (File 
8171-03;  file  9019-04;  13  Op.  J.  A.  G.,  127;  see 
also  file  1957-03,  7794-02;  26255-83:4,  Aug.  4, 
1911;  11130-35,  Dec.  20,  1916.) 

The  action  taken  at  the  time  an  officer's 
commission  was  issued  should  be  regarded  ae 
conclusive  by  subsequent  administrations, 
and  his  case  should  not  therefore  be  reopened. 
Opinions  regarding  doctrine  of  res  judicata  in 
administrative  action  considered  and  applied. 
(File  11130-6,  Dec.  28,  1909;  see  also  note  to 
sec.  417,  R.  S.;  and  see  file  2346-1,  Aug.  23, 
1905.) 


103 


Art.  Ill,  Sec.  2. 


ri.  1.  THE  CONSrirUTION. 


Judicial  Power. 


courts  of  inferior  jurisdiction  necessarily  im- 
plies the  power  to  limit  the  jurisdiction  of  those 
courts  to  particular  objects  *  *  *.  The 
legislative  authority  of  the  Union  must  first 
make  an  act  a  crime,  affix  a  punishment  to  it, 
and  declare  the  court  that  shall  have  jurisdic- 
tion of  the  offense."  (U.  S.  v.  Hudson,  7 
Cranch,  32.) 

See  note  to  Article  I,  section  8,  clause  9,  as 
to  the  judicial  system  of  the  United  States,  and 
the  status  of  courts-martial. 


Section  4.  [Impeachment  of  civil  officers.]  The  President,  Vice  President 
and  all  civil  Ollicers  of  the  United  States,  shall  be  removed  from  Office  on 
Impeachment  for,  and  Conviction  of,  Treason,  Bribery,  or  other  high  Crimes 
and  Misdemeanors. 

ARTICLE  III. 

Sectiox  1.  [Courts  of  United  States;  terms  and  compensation  of  judges.] 

The  judicial  Power  of  the  United  States,  shall  be  vested  hi  one  supreme  Court, 

and  in  such  inferior  Courts  as  the  Congress  may  from  time  to  time  ordain  and 

establish.     The  Judges,  both  of  the  supreme  and  inferior  Courts,  shall  liold 

their  Offices  during  good  Behaviour,  and  shall,-  at  stated  Times,  receive  for 

their  Services  a  Compensation  which  shall  not  be  diminished  during  their 

Contmuance  in  Office. 

"Of  all  the  courts  which  the  United  States 
may,  under  their  general  powers,  constitute, 
one  only — the  Supreme  Court — possesses  juris- 
diction derived  immediately  from  the  Consti- 
tution, and  of  which  the  legislative  power  can 
not  deprive  it.  All  other  courts  created  by 
the  General  Government  possess  no  jurisdic- 
tion but  what  is  given  them  by  the  power  that 
creates  them,  and  can  be  vested  with  none  but 
what  the  power  ceded  to  the  General  Govern- 
ment will  authorize  them  to  confer  *  *  *. 
The  power  which  Congress  possesses  to  create 

Section  2.  [Clause  1.  Extent  of  the  judicial  power.] — ^  The  judicial  Power 
shall  extend  to  all  Cases,  in  Law  and  Equity,  arising  under  this  Constitution, 
the  Laws  of  the  United  States,  and  Treaties  made,  or  which  shall  be  made, 
imder  their  Authority; — to  all  Cases  affecting  Ambassadors,  other  public  Min- 
isters and  Consuls; — to  all  Cases  of  admiralty  and  maritime  Jurisdiction; — to 
Controversies  to  which  the  United  States  shall  be  a  Party; — to  Controversies 
between  two  or  more  States; — between  a  State  and  Citizens  of  another  State; — 
between  Citizens  of  different  States; — between  Citizens  of  the  same  Stat©  claim- 
ing Lands  under  Grants  of  different  States,  and  between  a  State,  or  the  Citizens 
thereof,  and  foreign  States,  Citizens,  or  Subjects. 

Political  questions. — "Those  questions 
which  respect  the  rights  of  a  part  of  a  foreign 
empire  which  asserts,  or  is  contending  for,  its 
independence,  and  the  conduct  which  must  be 
obserA-ed  by  the  courts  of  the  Union  toward  the 
subjects  of  such  section  of  an  empire  who  may 
be  brought  before  the  tribunals  of  this  counti-y 
*  *  *  are_  generally  rather  political  than 
legal  La  their  character.  They  belong  more 
properly  to  those  who  can  declare  what  the  law 
shall  be;  who  can  place  the  nation  in  such  a 
position  with  respect  to  foreign  powers  as  to 
their  own  judgment  shall  appear  wise,  to  whom 
are  intrusted  all  its  foreign  relations,  than  to 
that  tribunal  whose  power  as  well  as  duty  is 
confined  to  tlie  application  of  the  rule  which 
the  legislature  may  prescribe  for  it.  In  such 
contests  a  nation  may  engage  itself  with  the  one 
party  or  the  other — may  observe  absolute  neu- 
trality— or  may  make  a  limited  recognition  of 
it.  The  proceedings  in  the  court  must  depend 
80  entirely  on  the  course  of  the  Government 
that  it  is  dilficult  to  give  a  precise  answer  to 
questions  which  do  not  refer  to  a  particular 
nation.     It  may  be  said,  generally,  that  if  the 


Government  remains  neutral,  and  recognizes 
the  existence  of  a  civil  war,  its  courts  can  not 
consider  as  criminal  those  acts  of  hostility 
which  war  authorizes,  and  which  the  new  Gov- 
ernment may  direct  against  the  enemy.  To 
decide  otherwise,  would  be  to  determine  that 
the  war  prosecuted  by  one  of  the  parties  waa 
imlawful,  and  would  be  to  array  the  nation  to 
which  the  court  belongs  against  that  party. 
This  would  transcend  tlie  limits  prescribed  to 
the  judicial  department."  (U.  S.  v.  Palmer, 
3  Wheat.,  610;  see  also  The  Di\-ina  Pastora,  4 
Wheat.,  52;  The  Santissima Trinidad,  7  Wheat., 
283;  and  Kennett  v.  Chambers,  14  How.,  38.) 

"Can  there  be  any  doubt  that  when  the 
executive  branch  of  the  Government,  which  is 
charged  with  the  foreign  relations,  shall  in  its 
correspondence  with  a  foreign  nation  assume 
a  fact  in  regard  to  the  sovereignty  of  any  island 
or  country,  it  is  conclusive  on  tlie  judicial  de- 
partment? And  in  this  view,  it  is  not  material 
to  biquire  nor  is  it  the  province  of  the  court  to 
determine  whether  the  Executive  be  right  or 
wrong.  It  is  enough  to  know  that  in  the  exer- 
cise of  his  constitutional  functions  he  has  de- 


104 


Judicial  Power. 


PL  1.  THE  CONSTITUTION. 


Art.  Ill,  Sec.  2. 


cided  the  question.  Having  done  this  under 
the  responsibilities  which  belong  to  him,  it  is 
obligatory  on  the  people  and  Government  of  the 
Union.  If  this  were  not  the  rule,  cases  might 
often  arise  in  which,  on  most  importimt  ques- 
tions of  foreign  jurisdiction,  there  would  be  an 
irreconcilable  difference  between  the  executive 
and  judicial  departments.  By  one  of  these 
departments,  a  foreign  island  or  country  might 
be  considered  as  at  peace  with  the  United 
States,  whilst  the  other  would  consider  it  in  a 
state  of  war.  No  well-regulated  goAernment 
has  ever  sanctioned  a  principle  so  unwise  and 
so  destructive  of  national  character."  (Wil- 
liams V.  Suffolk  Ins.  Co.,  13  Pet.,  415.) 

"Who  is  the  sovereign  de  jure  or  de  facto  of 
a  territory  is  not  a  judicial  but  a  political  ques- 
tion, the  determination  of  which  by  the  legisla- 
tive and  executive  departments  of  any  Govern- 
ment conclusively  binds  the  judges,  as  well  as 
all  other  officers,  citizens,  and  subjects  of  the 
Government.  All  courts  are  bound  to  take 
judicial  notice  of  the  territorial  extent  of  the 
jurisdiction  exercised  by  the  Government  whose 
laws  they  administer,  or  of  its  recognition  or 
denial  of  the  sovereignty  of  a  foreign  power,  as 
appearing  from  the  public  acta  of  the  legisla- 
ture and  executive,  although  those  acts  are  not 
formally  put  in  eAddence  nor  in  accord  with  the 
pleadings."     (Jones  v.  U.  S.,  137  U.  S.,  202.) 

"If  those  departments  which  are  intrusted 
with  the  foreign  intercourse  of  the  nation, 
which  assert  and  maintain  its  interests  against 
foreign  powers,  have  unequivocally  asserted 
its  rights  of  dominion  over  a  country  of  which 
it  is  in  possession  and  which  it  claims  under 
a  treaty ;  if  the  legislature  has  acted  on  the  con- 
struction thus  asserted,  it  is  not  in  its  own 
courts  that  this  construction  is  to  be  denied. 
A  question  like  this,  respecting  the  boundaries 
of  nations,  is,  as  has  been  truly  said,  more  a 
poUtical  than  a  legal  question,  and  in  its  dis- 
cussion the  courts  of  e^'el•y  coimtry  must  re- 
spect the  announced  will  of  the  legislature." 
(Foster  t).  Neilson,  2  Pet.,  253;  see  also  Ex  parte 
Cooper,  143  U.  S.,  472.) 

The  ratification  and  existence  of  a  treaty  are 
political  questions.  (Doe  v.  Braden,  16  How., 
635;  Terlinden  v.  Ames,_  184  _U.  S.,  270.) 
Wliether  a  particular  individual  is  to  be  recog- 
nized as  the  accredited  diplomatic  representa- 
tive of  a  foreign  Government,  is  a  political 
question.  (In  re  Baiz,  135  U.  S.,  403.)  As  to 
which  of  two  contesting  factions  is  the  de  jure 
government  of  a  State  of  the  Union  is  a  political 
question  (Luther  v.  Borden,  7  How.,  1),  as  ia 
the  question  of  the  necessity  for  calling  out  the 
militia  (Martin  v.  Mott,  12  Wheat.,  19),  and  also 
the  question  when  troops  of  the  United  States 
should  be  withdrawn  from  Cuba,  which  was 
presented  during  its  military  occupation. 
(Neely  v.  Henkel,  180  U.  S.,  109.) 

With  reference  to  a  bill  filed  to  restrain  the 
Secretary  of  War  and  officers  of  the  Army  from 
executing  certain  acts  of  Congress  providing  for 
a  military  government  in  the  State  of  Georgia, 
the  court  stated  in  its  opinion:  "That  these 
matters,  both  as  stated  in  the  body  of  the  bill 
and  in  the  prayers  for  relief,  call  for  the  judg- 
ment of  the  court  upon  political  questions  and 
ujaon  rights,  not  of  person  or  property  but  of  a 
political  character,  will  hardly  be  denied.     For 


the  rights  for  the  protection  of  which  our  au- 
thority is  invoked  are  the  rights  of  sovereignty, 
of  political  jurisdiction,  of  government,  of  cor- 
porate existence  as  a  State  with  all  its  constitu- 
tional powers  and  privileges.  No  case  of  pri- 
vate rights  or  private  property  infringed  or  in 
danger  of  actual  or  threatened  infringement, 
is  presented  by  the  bill  in  a  judicial  form  for  the 
judgment  of  the  court."  (Georgia  v.  Stanton, 
6  Wall.,  50.) 

International  law. — "International  law  is 
part  of  our  law,  and  must  be  ascertained  and 
administered  by  the  courts  of  justice  of  appro- 
priate jurisdiction  as  often  as  questions  of  right 
depending  upon  it  are  duly  presented  for  their 
determination.  For  this  purpose,  where  there 
is  no  treaty,  no  controlling  executive  or  legis- 
lative act  or  judicial  decision,  resort  must  be 
had  to  the  customs  and  usages  of  civilized 
nations;  and  as  evidence  of  these  to  the  works 
of  jurists  and  commentators  who,  by  years  of 
labor,  research,  and  experience,  have  made 
themselves  peculiarly  well  acquainted  with  the 
subjects  of  which  they  treat."  (The  Paquete 
Habana,  175  U.  S.,  677.) 

"International  law,  in  its  widest  and  most 
comprehensive  sense,  *  *  *  is  part  of  our 
law  and  must  be  ascertained  and  administered 
by  the  courts  of  justice  as  often  as  such  ques- 
tions are  presented  in  litigation  between  man 
and  man,  duly  submitted  to  their  determina- 
tion. The  most  certain  guide,  no  doubt,  for  the 
decisions  of  such  questions,  is  a  treaty  or  a 
statute  of  this  country.  But  when  *  *  * 
there  is  no  written  law  upon  the  subject,  the 
duty  still  rests  upon  the  judicial  tribunals  of 
ascertaining  and  declaring  what  the  law  is, 
whenever  it  becomes  necessary  to  do  so  in 
order  to  determine  the  rights  of  parties  to 
suits  regularly  brought  before  them.  In  doing 
this,  the  courts  must  obtain  such  aid  as  they 
can  from  judicial  decisions,  from  the  works 
of  jurists  and  commentators,  and  from  the  acts 
and  usages  of  civilized  nations."  (Hilton  v. 
Guyot,  159  U.  S.,  113.) 

"An  act  of  Congress  ought  never  to  be  con- 
strued to  violate  the  law  of  nations,  if  any  other 
possible  construction  remains."  (The  Charm- 
ing Betsy,  2  Cranch,  64.) 

"Until  an  act  be  passed,  the  court  is  bound 
by  the  law  of  nations,  which  is  a  part  of  the  law 
of  the  land."    (The  Nereide,  9  Cranch,  388.) 

A  public  vessel  of  war  of  a  foreign  sovereign 
at  peace  with  the  United  States,  coming  into  our 
ports  and  demeaning  herself  in  a  friendly  man- 
ner, is  exempt  from  the  jurisdiction  of  the 
country.    (The  Exchange,  7  Cranch,  116.) 

Adrniralty  and  maritime  jurisdiction. — 
"The  general  maritime  law  is  only  so  far  ap- 
plicable as  law  in  any  country  as  it  is  adopted 
by  the  laws  and  usages  of  that  country.  In 
this  respect  it  is  like  international  law,  or  the 
laws  of  war,  which  have  the  effect  of  law  in  no 
country  further  than  they  are  accepted  and  re- 
ceived as  such."  (The  Lottawanna,  21  Wall., 
558.) 

The  cession  of  aU  cases  of  admiralty  and 
maritime  jurisdiction  to  the  Federal  Govern- 
ment can  not  be  construed  as  a  cession  of  the 
waters  on  which  those  cases  may  arise.  This 
article  was  not  intended  for  the  cession  of  terri- 
tory or  of  general  j  urisdiction .     It  was  obviously 


105 


Art.  Ill,  Sec.  3. 


Pt.  1.   THE  CONSTITUTION. 


Treason. 


designed  for  other  purposes.  It  is  in  the 
eighth  section  of  the  s(>ron(l  article  that  we  are 
to  k)ok  for  cessions  of  territory  and  of  exchisive 
jurisiliction.  It  is  to  be  observed  that  the  power 
of  exchisivo  le;j;ishition  (which  is  jurisdiction)  is 
united  with  cession  of  territory  which  is  to  be 
the  free  act  of  the  States.  It  is  diliicult  to  com- 
pare the  two  sections  together  without  feeling  a 
conviction,  not  to  be  strengthened  by  any  com- 
mentary on  them,  that  in  descri  hing  the  judicial 
power  the  framers  of  our  Constitution  had  not 
in  view  any  cession  of  territory,  or  which  is 
essentially  the  same,  of  general  jurisdiction.  It 
is  not  questioned  that  whatever  may  be  neces- 
sary to  the  full  and  unlimited  exercise  of  ad- 
miralty and  maritime  jurisdiction  is  in  the 


government  of  the  Union.  Congress  may  pass 
all  laws  which  are  necessary  and  proper  for 
giving  the  most  complete  effect  to  this  power. 
.Still  the  general  jurisdiction  over  the  place  sub- 
ject to  this  grant  of  power  adheres  to  the  terri- 
tory as  a  portion  of  the  sovereignty  of  the 
State  not  yet  given  away.  Accordingly,  under 
a  Federal  law  providing  for  the  punishment  of 
murder  committed  on  the  high  seas,  or  in  any 
river,  haven,  basin,  or  bay  out  of  the  jurisdiction 
of  any  particular  State,  it  was  held  that  murder 
committed  on  board  a  warship  of  the  United 
States  in  Boston  Harbor  was  not  cognizable  by 
the  Federal  courts,  as  the  waters  of  the  harbor 
were  within  the  jurisdiction  of  the  State  of  Mas- 
sachusetts.    (U.  S.  V.  Bevans,  3  Wheat.,  336.) 


[Clause  2.  Jurisdiction  of  Supreme  Court.]  ^  In  all  Cases  affecting  Am- 
bassadors, other  public  Ministers  and  Consuls,  and  those  in  which  a  State  shall 
be  Party,  the  supreme  Court  shall  have  origmal  Jurisdiction.  In  all  the  other 
Cases  before  mentioned,  the  supreme  Court  shaU  have  appellate  Jurisdiction, 
both  as  to  Law  and  Fact,  with  such  Exceptions,  and  under  such  Regulations 
as  the  Congress  shall  make. 

[Clause  3.  Jury  trials;  places  of  holding.]  ^  The  trial  of  all  Crimes,  except 

in  Cases  of  Impeachment,  shall  be  by  Jury;  and  such  Trial  shaU  be  held  in  the 

State  where  the  said  Crimes  shall  have  been  committed ;  but  when  not  committed 

within  any  State,  the  Trial  shall  be  at  such  Place  or  Places  as  the  Congress 

may  by  Law  have  directed. 

See  note  to  Article  I,  section  8,  clause  14,  "Trials  by  jury  not  required  in  the  Navy;  and 
Amendments,  Article  VI,  "Jury  trial." 

Section  3.  [Clause  1.  Treason  defined;  evidence  required  to  convict.] 
^  Treason  against  the  United  States,  shall  consist  only  in  levying  War  against 
them,  or,  in  adhering  to  their  Enemies,  giving  them  Aid  and  Comfort.  No 
Person  shaU  be  convicted  of  Treason  unless  on  the  Testimony  of  two  Witnesses 
to  the  same  overt  Act,  or  on  Confession  in  open  Court. 


War  must  be  actually  levied  against  the 
United  States. — ''However  flagitious  may  be 
the  crime  of  conspiring  to  subvert  by  force  the 
government  of  our  country,  such  conspiracy  is 
not  treason.  To  conspire  to  levy  war  and  actu- 
ally to  levy  war  are  distinct  offenses.  *  *  * 
It  is  not  the  intention  of  the  court  to  say  that 
no  individual  can  be  guilty  of  this  crime  who 
has  not  appeared  in  arms  again^st  his  country. 
On  the  contrary,  if  war  be  actually  levied,  that 
is,  if  a  body  of  men  be  actually  assembled  for 
the  purpose  of  effecting  by  force  a  treasonable 
purpose,  all  those  who  perform  any  part,  how- 
ever minute  or  however  remote  from  the  scene 
of  action,  and  who  are  actually  leagued  in  the 
general  conspiracy,  are  to  be  considered  as 
traitors.  *  *  *  It  is,  therefore,  more  safe, 
as  well  as  more  consonant  to  the  principles  of 
our  Constitution,  that  the  crime  of  treason 
should  not  be  extended  by  construction  to 
doubtful  cases;  and  that  crimes  not  clearly 
within  the  Constitutional  delinition  should  re- 
ceive such  punishment  as  the  legislature  in  its 
wisdom  may  provide."  (Ex  parte  Bollman,  4 
Cranch,  75;  see  also  U.  S.  v.  The  Insurgents,  2 


Dall.,  335;  U.  S.  v.  Mitchell,  2  Ball.,  348:  U.  S.  v. 
Burr,  4  Cranch,  469.  25  Fed.  Cas.  No.  14692; 
U.  S.  V.  Hoxie,  26  Fed.  Cas.  No.  15407.) 

Foreigner  may  be  guilty. — "As  a  foreigner 
domiciled  in  the  country  he  was  bound  to  obey 
all  the  laws  of  the  United  States  not  immedi- 
ately relating  to  citizenship,  and  was  equally 
amenable  with  citizens  to  the  penalties  pre- 
scribed for  their  infraction.  He  owed  allegiance 
to  the  government  of  the  country  so  long  as  he 
resided  Avithin  its  limits,  and  can  claim  no  ex- 
emption from  the  statutes  passed  to  punish 
treason,  or  the  giving  of  aid  and  comfort  to  the 
insiugent  states.  The  law  on  this  subject  is 
well  settled  and  universally  recognized." 
(Radich  v.  Hutcliins,  95  U.  S.,  210;  see  also 
CarUsle  v.  U.  S.,  16  Wall.,  147;  U.  S.  v.  Villato, 
2  Dall.,  370.) 

Statutory  definition. — "Whoever,  owing 
allegiance  to  the  United  States,  levies  Avar 
against  them  or  adheres  to  their  enemies,  giv- 
ing them  aid  and  comfort  Avithin  the  United 
States  or  elsewhere,  is  guilty  of  treason."  (Sec. 
1,  Criminal  Code,  act  Mar.  4,  1909,  35  Stat., 
1088.) 


[Clause  2.  Punishment  of  treason.]  ^  The  Congress  shall  have  power  to 
declare  the  Punishment  of  Treason,  but  no  Attainder  of  Treason  shall  work 
Corruption  of  Blood,  or  Forfeiture  except  during  the  Life  of  the  Person  attainted. 

106 


Extradition. 


Pt.  1.   THE  CONSTITUTION. 


Art.  IV,  Sec.  2. 


Punishment. — "Whoever  ia  convicted  of 
treason  shall  suffer  death;  or  at  the  discretion  of 
the  court,  shall  be  imprisoned  not  less  than  five 
years  and  lined  not  less  than  ten  thousand  dol- 
lars, to  be  levied  on  and  collected  out  of  any  or 
all  of  his  property,  real  and  personal,  of  which 
he  was  the  owner  at  the  time  of  committing 


such  treason,  any  sale  or  conveyance  to  the 
contrary  notwithstanding;  and  every  person  so 
convicted  of  treason  shall,  moreover,  be  in- 
capable of  holding  any  office  under  the  United 
States."  (Sec.  2,  Criminal  Code,  Act  Mar.  4, 
1909,  35  Stat.,  1088;  see  also  sec.  1624,  R.  S., 
art.  4.) 


ARTICLE  IV. 

Section  1.  [Full  faith  and  credit  between  States  as  to  public  records,  etc.] 
Full  Faith  and  Credit  shall  be  given  in  eacli  State  to  the  pubhc  Acts,  Records, 
and  judicial  Proceedings  of  every  other  State.  And  the  Congress  may  by 
general  Laws  prescribe  the  Manner  in  which  such  Acts,  Records  and  Proceed- 
ings shall  be  proved,  and  the  Effect  thereof. 

Section  2.  [Clause  1.  Privileges  and  immunities  of  citizens.]  ^  Tlie  Citi- 
zens of  each  State  shaU  be  entitled  to  aU  Privileges  and  Immunities  of  Citizens 
in  the  several  States. 

[Clause  2.  Extradition  between  States.]  -  A  Person  charged  in  any  State 
with  Treason,  Felony,  or  other  Crime,  who  shall  flee  from  Justice,  and  be  found 
in  another  State,  shall  on  demand  of  the  executive  Authority  of  the  State  from 
which  he  fled,  be  delivered  up,  to  be  removed  to  the  State  having  Jurisdiction 
of  the  Crime. 


Persons  in  Navy. — There  is  no  act  of  Con- 
gress authorizing  a  call  by  the  governor  of  a 
State  for  the  siu-render  of  an  officer  of  the  Navy 
charged  with  having  broken  the  peace  of  such 
State,  nor  any  law  authorizing  an  arrest  by  the 
Executive  with  a  view  to  a  forcible  surrender 
by  him  for  the  purposes  of  trial.  (1  Op.  Atty. 
Gen.,  244.  See  also  note  to  Art.  I,  sec.  8,  clause 
13,  "Exemption  of  Federal  officers  and  sub- 
ordinates from  arrest  by  State  authorities;"  Art. 
I,  sec.  8,  clause  14,  "Jurisdiction  of  civil  au- 
thorities over  persons  in  military  and  naval 
service;"  and  note  to  sec.  355,  R.  S.) 

In  the  absence  of  legal  provision  for  delivery 
to  the  civil  authorities  of  a  State  of  persons  in  the 
military  service,  on  original  demand  made  upon 
the  President,  it  rests  in  "the  discretion  of  the 
President  in  what  cases  he  will  exercise  his 
military  authority  over  the  citizens  composing 
the  Army  to  constrain  them  to  8iu*render  them- 
selves to  the  civil  authorities  of  the  States." 
The  President  in  such  cases  may  properly 
adopt,  by  analogy,  the  principle  of  the  Consti- 
tution relative  to  the  surrender  of  fugitives  by 
the  governors  of  the  States,  applying  the 
details  of  the  statute  enacted  thereunder,  "so 
far  as  to  require  the  demand  to  be  made  by 
tlie  governor  of  the  State  or  Territory  to  which 
the  complainant  belongs,  on  the  copy  of  an 
indictment  found  or  an  affidavit  made  specify- 
ing the  particular  offense  and  authenticated 
as  by  that  act  is  provided."  (2  Op.  Atty.  Gen., 
12.) 

Should  the  civil  authorities  undertake  collu- 
sively  to  obstruct  or  impede  the  military 
authorities  in  the  exercise  of  their  just  and 


appropriate  jurisdiction  of  a  charge  in  its  mili- 
tary relations,  it  would  be  the  bounden  duty 
of  the  military  authorities  to  maintain  their 
jirrisdiction  and  to  yield  it  only  to  an  order  of 
the  President  for  good  cause  or  to  the  ultimate 
decision  of  the  law  by  the  Supreme  Court  of  the 
United  States.  (6  Op.  Atty.  Gen.,  413,  429.) 
In  cases  where  a  person  in  the  Navy  is  desired 
by  State  authorities  for  trial  upon  criminal 
charges  the  Secretary  of  the  Navy  in  practice 
authorizes  his  surrender  by  the  immediate 
commanding  officer  of  the  man  upon  presen- 
tation of  warrant  in  due  form  and  proper  hands, 
provided  that  the  man  concerned  is  not  a  naval 
prisoner  and  satisfactory  assurances  are  given 
as  to  his  return  without  expense  to  the  United 
States  when  the  proceedings  against  him  are 
completed,  provided  his  return  is  then  desired 
by  the  naval  authorities.  This  applies  to  cases 
where  the  man  is  serving  at  a  navy  yard  or 
other  place  within  the  limits  of  the  State  which 
desires  his  surrender.  In  other  cases— that  is, 
where  the  man  is  outside  the  State— "requisi- 
tion for  the  delivery  of  the  party  must  be  made 
by  the  governor  or  chief  executive  of  such  State, 
addressed  to  the  Secretary  of  the  Navy,  show- 
ing that  the  party  desired  is  charged  with  a 
crime  in  that  State  for  which  be  could  be  ex- 
tradited under  the  Constitution  of  the  United 
States,  the  enactments  of  Congress,  and  the  laws 
of  the  State  desiring  his  delivery."  (See  G.  O. 
No.  121,  Navy  Dept.,  Sept.  17, 1914,  which  con- 
tains detailed  instructions  concerning  the  deliv- 
ery of  men  to  civil  authorities;  see  also  sec. 
5278,  R.  S.,  as  to  interstate  extradition  of  fugi- 
tives from  justice.) 


[Clause  3.  Persons  held  to  service  or  labor.]  ^No  Person  held  to  Service  or 
Labour  in  one  State,  under  the  Laws  thereof,  escapmg  into  another,  shall,  in 
Consequence   of   any  Law  or   Regulation   therein,   be   discharged  from  such 


54641°— 22- 


107 


Art.  IV,  Sec.  3. 


PL  1.  THE  CONSTITUTION. 


Territories. 


I. 
II. 

III. 


Power  of  Congress  Over  Territory. 

Government  of  Ceded  and  Conquered 
Territory. 

Military  Governor's  Power  in  Ab- 
sence OF  Legislation. 

IV.  Status  of;  Insular  Possessions. 
V.  Application  of  Constitution  to  Terri- 
tories. 
VI.  Status    of    Inhabitants     of    Insular 
Possessions. 


Service  or  Labour,  but  shall  be  dolivered  up  on  Claim  of  the  Party  to  whom 
such  Service  or  Labour  may  be  due. 

Section  3.  [Clause  1.  Admission  and  formation  of  new  States.]  ^  New 
States  may  be  admitted  by  the  Congress  into  this  Union;  but  no  new  State 
shall  be  formed  or  erected  within  the  Jurisdiction  of  any  other  State;  nor  any 
State  be  formed  by  the  Junction  of  two  or  more  States,  or  parts  of  States, 
without  the  Consent  of  the  Legislatures  of  the  States  concerned  as  well  as  of 
the  Congress. 

[Clause  2.  Power  of  Congress  over  territory  and  other  property.]  ^  The 
Congress  shall  have  Power  to  dispose  of  and  make  all  needful  Rules  and  Regula- 
tions respecting  the  Territory  or  other  Property  belonging  to  the  United  States; 
and  nothing  in  this  Constitution  shall  be  so  construed  as  to  Prejudice  any  Claims 
of  the  United  States,  or  of  amy  particular  State. 

"The  power  of  Congress  over  the  territories 
of  the  United  States  is  *  *  *  general  and 
plenary,  arising  from  and  incidental  to  the  right 
to  acquire  the  territory  itself  and  from  the 
power  given  by  the  Constitution  to  make  all 
needful  rules  and  regulations  respecting  the 
territory  or  other  property  of  the  United  States. 
It  would  be  absurd  to  hold  that  the  United 
States  has  the  power  to  acquire  territory  and 
no  power  to  govern  it  when  acqiiired."  (Late 
Corporation  of  the  Church  of  Jesus  Christ  v. 
U.S.,  136U.  S.,1.) 

"Tlie  power  there  given  [Art.  IV,  sec.  3, 
clause  2],  whatever  it  may  be,  is  confined,  and 
was  intended  to  be  confined,  to  the  territory 
which  at  that  time  belonged  to  or  was  claimed 
by  the  United  States,  and  was  within  their 
boundaries  as  stated  by  the  treaty  with  Great 
Britain,  and  can  have  no  influence  upon  a  terri- 
tory afterwards  acquii'ed  from  a  foreign  Govern- 
ment. It  wag  a  special  provision  for  a  known 
and  particular  territory  and  to  meet  a  present 
emergency  and  nothing  more.  A  brief  sum- 
mary of  the  history  of  the  times,  as  well  as  the 
careful  and  measured  terms  in  which  the  article 
is  framed,  will  show  the  correctness  of  this 
proposition."  (Scott t).  Sandford,  19 How.,  393; 
opinion  of  Chief  Justice  Taney.) 

"There  is  certainly  no  power  given  by  the 
Constitution  to  the  Federal  Government  to 
establish  or  maintain  colonies  bordering  on  the 
United  States,  or  at  a  distance,  to  be  ruled  and 
governed  at  its  own  pleasure;  nor  to  enlarge  its 
territorial  limits  in  any  way  except  by  the 
admission  of  new  States.  *  *  *  But  no 
power  is  given  to  acquire  a  territory  to  be  held 
and  governed  permanently  in  that  character. 
*  *  *  It  is  acquired  to  become  a  State  and 
not  to  be  held  as  a  colony  and  governed  by 
Congress  with  absolute  authority;  and  as  the 
propriety  of  admitting  a  new  State  is  committed 
to  the  sound  discretion  of  Congress,  the  power 
to  acquire  territory  for  that  purpose,  to  be  held 
by  the  United  States  until  it  is  in  a  suitable 
condition  to  become  a  State  upon  an  equal 
footing  with  the  other  States,  must  rest  upon 
the  same  discretion.  It  is  a  question  for  the 
political  department  of  the  Government  and 
not  the  judicial;  and  whatever  the  political 
department  of  the  Government  shall  recognize 
as  within  the  limits  of  the  United  States  the 
judicial  department  is  also  bound  to  recognize 


I.  Power  of  Congress  Over  Territory. 

Sources  of  power  to  govern  territories. — 

"The  term  territory  as  here  used  is  merely 
descriptive  of  one  kind  of  property  and  is 
equivalent  to  the  word  lands.  And  Congress 
has  the  same  power  over  it  as  over  any  other 
property  belonging  to  the  United  States;  and 
tliis  power  is  vested  in  Congress  without  limita- 
tion, and  has  been  considered  the  foundation 
upon  which  the  territorial  governments  rest." 
(U.  S.  V.  Gratiot,  14  Pet.,  526.) 

"The  power  of  Congress  to  organize  terri- 
torial governments  and  make  laws  for  their 
inhabitants  arises  not  so  much  from  the  clause 
in  the  Constitution  in  regard  to  disposing  of  and 
making  rules  and  regulations  concerning  the 
territory  and  other  property  of  the  United 
States  as  from  the  ownership  of  the  country'  in 
which  its  territories  are,  and  the  right  of  ex- 
clusive sovereignty  ■which  must  exist  in  the 
National  Government  and  can  be  found  nowhere 
else."     (U.  S.  V.  Kagama,  118  U.  S.,  375.) 

The  power  to  govern  "is  an  authority  which 
arises  not  necessarily  from  the  territorial  clause 
of  the  Constitution  but  from  the  necessities  of 
the  case  and  from  the  inability  of  the  States  to 
act  on  the  subject."  (De  Lima  v.  Bidwell, 
182  U.  S.,1.) 

"The  power  of  governing  and  legislating  for 
a  territory  is  the  inevitable  consequence  of  the 
right  to  acquire  and  hold  property.  Could  tliis 
possibly  be  contested,  the  Constitution  of  the 
United  States  declares  that  'Congress  shall  have 
the  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory 
and  other  property  belonging  to  the  United 
States.'"  (Sere  v.  Pitot,  6  Cranch,  332;  see 
also  American  Ins.  Co.  v.  Canter,  1  Pet.,  511.) 


108 


Territories. 


Pt.  1.   THE  CONSTITUTION. 


Sec.  IV,  Art.  3. 


and  to  administer  in  it  the  laws  of  tlie  United 
States  so  far  as  they  apply,  and  to  maintain  in 
the  territory  the  authority  and  rights  of  the 
Government  and  also  the  personal  rights  and 
rights  of  property  of  the  individual  citizens  as 
secured  by  the  Constitution.  All  we  mean  to 
say  on  this  point  is  that,  as  there  is  no  express 
regulation  in  the  Constitution  defining  the 
power  which  the  General  Government  may 
exercise  over  a  person  or  property  of  a  citizen 
in  a  territory  thus  acquired,  the  court  must 
necessarily  look  to  the  provisions  and  princi- 
ples of  the  Constitution  and  its  distribution  of 
powers  for  the  rules  and  principles  by  which  its 
decision  must  be  governed."  (Scott  v.  Sandford, 
19  How.,  393;  opinion  of  Chief  Justice  Taney.) 

II.  Government  of  Ceded  and  Conquered 
Territory. 

Government  of  conquered  territory  dur- 
ing war. — See  note  to  Article  I,  section  8, 
clause  11. 

Government  of  conquered  and  cededi;er- 
ritory  after  war. — The  government  estab- 
lished by  the  military  commanders,  by  author- 
ity of  the  President  as  Commander-in-Chief,  in 
upper  California,  which  was  conquered  by  the 
United  States  forces  during  the  War  with  Mex- 
ico, lawfully  continued  in  existence  after  the 
treaty  of  peace  by  which  the  territory  was  for- 
mally annexed  to  the  United  States,  and  until 
Congress  had  legislated  for  its  government. 
"The  territory  had  been  ceded  as  a  conquest, 
and  was  to  be  preserved  and  governed  as  such 
until  the  sovereignty  to  which  it  had  passed  had 
legislated  for  it.  That  sovereignty  was  the 
United  States,  under  the  Constitution,  by  which 
power  had  been  given  to  Congi-ess  to  dispose  of 
and  make  all  needful  rules  and  regulations  re- 
specting the  territory  or  other  property  belong- 
ing to  the  United  States,  with  power  also  to 
admit  new  States  into  this  Union,  with  only 
such  limitations  as  are  expressed  in  the  section 
in  which  this  power  is  given.  The  government 
of  which  Col.  Mason  was  the  executive,  had  its 
origin  in  the  lawful  exercise  of  a  belligerent 
right  over  a  conquered  territory.  It  had  been 
instituted  during  the  war  by  the  command  of  the 
President  of  the  United  States.  It  was  the  gov- 
ernment when  the  territory  was  ceded  as  a  con- 
quest, and  it  did  not  cease,  as  a  matter  of  course, 
or  as  a  necessary  consequence  of  the  restoration 
of  peace.  The  President  might  have  dissolved 
it  by  withdra%ving  the  Army  and  Navy  officers 
who  administered  it,  but  he  did  not  do  so.  Con- 
gress could  have  put  an  end  to  it,  but  that  was 
not  done.  The  right  inference  from  the  inac- 
tion of  both  is,  that  it  was  meant  to  be  continued 
until  it  had  been  legislatively  changed.  No 
presumption  of  a  contrary  intention  can  be 
made.  WTiatever  may  have  been  the  causes  of 
delay,  it  must  be  presumed  that  the  delay  was 
consistent  with  the  true  policy  of  the  Govern- 
ment. And  the  more  so  as  it  was  continued  un- 
til the  people  of  the  territory  met  in  convention 
to  form  a  State  government,  which  was  subse- 
quently recognized  by  Congi'ess  under  its  pow- 
ers to  admit  new  States  into  the  Union . ' '  (Cross 
V.  Harrison,  16  How.,  164.) 

"The  opinion  [Cross  v.  Harrison]  which  is  a 
long  one,  establishes  the  three  following  propo- 


sitions: (1)  That  under  the  war  power  the  mili- 
tary governor  of  California  was  authorized  to 
prescribe  a  scale  of  duties  upon  importations 
from  foreign  countries  to  San  Francisco  and  to 
collect  the  same  through  a  collector  appointed 
by  himself  until  the  ratification  of  the  treaty 
of  peace.  (2)  That  after  such  ratification  du- 
ties were  legally  exacted  under  the  tariff  laws 
of  the  United  States,  which  took  effect  imme- 
diately. (3)  That  the  civil  government  estab- 
lished in  California  continued  from  the  neces- 
sities of  the  case  until  Congress  provided  a 
Territorial  government."  (De  Limai).  Bid  well, 
182  U.S.,  1.) 

"We  have  no  doubt,  however,  that  from  the 
necessities  of  the  case,  the  right  to  administer 
the  government  of  Porto  Rico  continued  in  the 
military  commander  after  the  ratification  of  the 
treaty  and  until  further  action  by  Congress." 
(Eooley  v.  U.  S.,  182  U.  S.,  222.) 

"By  the  ratification  of  the  treaty  of  peace, 
Porto  Rico  ceased  to  be  subject  to  the  Crown  of 
Spain  and  became  subject  to  the  legislative 
power  of  Congress.  But  the  civil  government 
of  the  United  States  can  not  extend  immedi- 
ately and  of  its  own  force  over  conquered  and 
ceded  territory.  Theoretically  Congress  might 
prepare  and  enact  a  scheme  of  civil  government 
to  take  effect  immediately  upon  the  cession, 
but  practically  there  always  have  been  delays 
and  always  will  be.  Time  is  required  for  a 
study  of  the  situation  and  for  the  matiuing  and 
enacting  of  an  adequate  scheme  of  civil  govern- 
ment. In  the  meantime,  pending  the  action  of 
Congi-ess,  there  is  no  civil  power  under  our  sys- 
tem of  government,  not  even  that  of  the  Presi- 
dent as  ciAT.1  executive,  which  can  take  the 
place  of  the  government  which  has  ceased  to 
exist  by  the  cession.  Is  it  possible  that  under 
such  circumstances  there  must  be  an  interreg- 
num? We  think  cleai'ly  not.  The  authority 
to  govern  such  ceded  territory  is  found  in  the 
laws  applicable  to  conquest  and  cession.  That 
authority  is  the  military  power  under  the  con- 
trol of  the  President  as  Commander  in  Chief." 
(Santiago  v.  Nogueras,  214  U.  S.,  260.) 

Guam  and  Tutuila. — "The  political  status 
of  these  islands  is  anomalous.  Neither  the  Con- 
stitution nor  the  laws  of  the  United  States  have 
been  extended  to  them,  and  the  only  adminis- 
trative authority  existing  in  them  is  that  de- 
rived mediately  or  immediately  from  the  Presi- 
dent as  Commander  in  Chief  of  the  Army  and 
Navy  of  the  United  States.  On  December  23, 
1898,  the  President  placed  the  island  of  Guam 
under  the  control  of  the  Department  of  the 
Navy  with  direction  that  the  Secretary  'will 
take  such  steps  as  may  be  necessary  to  establish 
the  authority  of  the  United  States  and  to  give 
it  the  necessary  protection  and  government'; 
and  in  pursuance  of  the  authority  thus  conferred 
the  then  Secretary  appointed  a  naval  officer  as 
'naval  governor  of  the  island  of  Guam,  this  duty 
being  in  addition  to  yoiu"  (his)  duty  as  com- 
mander of  a  division  of  the  Asiatic  Fleet.'  And 
on  February  19,  1900,  the  President  likewise 
turned  over  to  your  [Navy]  department  the 
control  of  the  island  of  Tutuila  and  the  other 
islands  of  the  Samoan  group  belonging  to  the 
United  States,  for  the  purposes  of  a  naval  sta- 
tion. A  naval  officer  was  detailed  by  the  Sec- 
retary to  assume  command  of  such  station,  the 


109 


Art.  IV,  Sec.  3. 


Pt.  1.   THE  CONSTITUTION. 


Territories. 


order  concludinG;  as  follows:  'Your  position  as 
coinmaiulaiit  will  invest  you  with  authority 
over  the  islands  in  the  group  within  the  limits 
of  the  station. '  In  the  one  case,  therefore,  a 
naval  governor  was  apjiointed,  and  in  the  other 
the  commandant  was  invested  with  guberna- 
torial functions  over  the  islands  in  the  group 
embraced  within  tlie  limits  of  the  station.  ' 
(25  Op.  Atty.  Gen.,  292,  holding  that  commis- 
sions m  the  usual  form  may  bo  issued  by  the 
President  to  the  naval  officers  serving  as  gov- 
ernors of  these  islands;  see  also  25  Op.  Atty. 
Gen.,  59,  128,  242.) 

"Guam  is  an  unorganized  territory  of  small 
extent,  concerning  which  Congress  has  ab- 
stained from  legislating  almost  wholly;  *  *  * 
Congress  will  doubtless,  at  the  proper  time,  take 
up  the  subject  and  legislate  for  Guam,  either  by 
special  laws  fitted  to  its  situation  and  condition, 
or  by  extending  to  it,  as  it  did  in  the  case  of 
Alaska,  Porto  Rico,  and  Hawaii,  the  general 
laws  of  the  United  States  not  locally  inappli- 
cable." (25  Op.  Atty.  Gen.,  128;  see  also  An- 
nual lleport  of  Secretary  of  the  Navy,  1907,  pp. 
25,  2G,  recommending  that  Congress  by  legis- 
lation provide  a  system  of  government  for  these 
islands.) 

In  Guam  "a  complete  government  has  been 
instituted  and  conducted  by  the  Navy  Depart- 
ment through  an  officer  of  the  Navy  appointed 
as  governor  by  the  Secretary  and  commissioned 
by  the  President  under  an  order  of  President 
McKinley  *  *  *.  This  order  was  dated 
December  23,  1898,  and  of  course  was  an  exer- 
cise of  the  war  power,  and  the  executive  gov- 
ernment thus  established  seems  to  have  sur- 
vived and  continued  since  the  ratification  of 
the  treaty,  with  the  silent  acquiescence  of  Con- 
gress, in  accordance  with  the  doctrine  that  a 
temporary  and  provisional  government  of  this 
nature  continues  ex  necessitate  rei  until  further 
action  by  Congress.  (Dooley  v.  United  States, 
182  U.  S.,  222,  citing  Cross  i;.  Harrison,  16  How., 
164.)  The  Guam  government  did  not  grow  out 
of  a  military  reservation,  but  was  a  military 
government  of  the  entire  island  in  consequence 
of  occupation  and  conquest  from  Spain."  (26 
Op.  Atty.  Gen.,  98.) 

The  Supreme  Court  of  the  District  of  Colum- 
bia has  no  jurisdiction  in  a  habeas  corpus  pro- 
ceeding instituted  against  the  Secretary  of  the 
Navy  to  inquire  into  the  grounds  of  the  deten- 
tion of  a  person  in  the  island  of  Guam  pursuant 
to  the  sentence  of  the  civil  court  established  in 
that  island.  "We  are  compelled  to  give  a  neg- 
ative answer  to  the  question,  notwithstanding 
it  may  possibly  be  that  the  party  on  whose  be- 
half the  petition  is  presented  is  restrained  of 
his  liberty  under  the  order  of  a  tribunal  un- 
known to  the  Constitution  and  law,  and  is  with- 
out certain  remedv  in  any  other  com-t."  (Mc- 
Gowan  v.  Moody,  22  App.  D.  C,  148.) 

Guam  having  been  ceded  to  the  United 
States  by  the  Treaty  of  Paris  of  December  10, 
1898,  was  necessarily  governed  by  the  military 
power  of  this  country  because  the  island  has 
never  been  organized  as  a  Territory.  Those 
acts  of  Congress  which  provide  for  the  punish- 
ment of  offenses  not  specially  provided  for  by 
any  law  of  the  United  States  and  which  also 
provide  for  the  trial  of  such  offenses  in  courts 
of  the  United  States  Territories  provided  with 


organized  Territorial  government  do  not  ex- 
clude the  exercise  of  the  military  authority  to 
punish  offenders  bv  virtue  of  the  regulations. 
(Woog  V.  U.  S.,48Ct.  Cls.,  80.) 

The  existing  governments  in  Guam  and 
Samoa  have  been  recognized  by  Congress  in 
various  enactments,  as,  for  example,  the  act  of 
June  28,  1906  (34  Stat.,  552),  providing  for  the 
acknowledgment  of  deeds,  etc.,  affecting  lands 
in  the  District  of  Columbia  or  any  territory 
of  the  United  States. 

III.  Military    Governor's   Power  in   Ab- 
sence OF  Legislation. 

Authority  of  military  commander. — "It 

is  a  general  rule  of  public  law,  recognized  and 
acted  upon  by  the  United  States,  that  when- 
ever political  jinisdiction  and  legislative  power 
over  any  territory  are  transferred  from  one  na- 
tion or  sovereign  to  another,  the  municipal  laws 
of  the  country — that  is,  laws  which  are  intended 
for  the  protection  of  private  rights — continue  in 
force  until  abrogated  or  changed  by  the  new 
government  or  sovereign.  *  *  *  As  a  matter 
of  course,  all  laws,  ordinances,  and  regulations 
in  conflict  with  the  political  character,  institu- 
tions, and  constitution  of  the  new  government 
are  at  once  displaced.  Thus  *  *  *  the  laws 
of  a  countrj'  in  support  of  an  established  re- 
ligion or  abiddging  the  freedom  of  the  press,  or 
authorizing  cruel  and  luiusual  punisliments  and 
the  like  would  at  once  cease  to  be  of  ol^ligatory 
force,  mthout  any  declaration  to  that  effect; 
and  the  laws  of  the  country  on  other  subjects 
would  necessarily  be  superseded  by  existing 
laws  of  the  new  government  upon  the  same 
matters.  But  with  respect  to  other  laws,  affect- 
ing the  possession,  use,  and  transfer  of  property 
and  designed  to  secure  good  order  and  peace  in 
the  community  and  promote  its  health  and 
prosperity,  wliich  are  strictly  of  a  municipal 
character,  the  rule  is  general  that  a  change  of 
government  leaves  them  in  force  until  by  direct 
action  of  the  new  government  they  are"  altered 
or  repealed."  (Cliicago,  etc.,  R.  Co.  v. 
McGlinn,  114  U.  S.,  547.) 

[The  joint  resolution  of  Congress  pro\dding 
for  the  annexation  of  the  Hawaiian  Islands  as  a 
part  of  the  territory  of  the  United  States  con- 
tained a  prov-ision  that  "the  municipal  legis- 
lation of  the  Hawaiian  Islands  *  *  *  not 
inconsistent  with  this  joint  resolution  nor  con- 
trary to  the  Constitution  of  the  United  States, 
nor  to  any  existing  treaty  of  the  United  States, 
shall  remain  in  force  until  the  Congress  of 
the  United  States  shall  otherwise  determine." 
Held,  that  the  laws  of  Hawaii  continued  in 
effect,  which  pro\'ided  for  the  trial  of  criminal 
offenses  without  compliance  wdth  the  require- 
ments of  the  Federal  Constitution  as  to  present- 
ment and  indictment  by  grand  jury  and  trial 
by  jury.     (Hawaii   v.   Mankichi,    190   U.    S., 

197.)] 

"\\Tiile  his  [military  commander's]  power  is 
necessarily  despotic,  this  must  be  understood 
rather  in  an  admin  istratiA'e  than  in  a  legislative 
sense.  ^Miile  in  legislating  for  a  conquered  ter- 
ritory he  may  disregard  the  laws  of  that  country, 
lie  is  not  wholly  above  the  laws  of  his  owii. 
For  instance,  it  is  clear  that  wliile  a  military 
commander  dining  the  Civil  War  was  in  occupa- 


110 


Territories. 


Pt.  1.   THE  CONSTITUTION. 


Art.  IV,  Sec.  3. 


tion  of  a  Southern  port  he  could  impose  duties 
upon  merchandise  arriving  from  abroad,  it 
would  hardly  be  contended  that  he  could  also 
impose  duties  upon  merchandise  arriving  from 
ports  of  his  own  country.  His  power  to  admin- 
ister would  be  absolute,  but  his  power  to  legis- 
late would  not  be  without  certain  restrictions— 
in  other  words,  they  would  not  extend  beyond 
the  necessities  of  the  case."  (Dooley  v.  U.  S., 
182  U.  S.,222.) 

"The  authority  of  the  President  as  Com- 
mander in  Chief  to  exact  duties  upon  imports 
from  the  United  States  [into  Porto  Rico]  ceased 
with  the  ratification  of  the  treaty  of  peace,  and 
her  right  to  the  free  entry  of  goods  from  the 
Ijorts  of  the  United  States  continued  until  Con- 
gres.s  should  constitutionally  legislate  upon  the 
subject."     (Dooley  v.  U.  S.,  182  U.  S.,~236.) 

An  order  issued  by  the  officer  in  command  of 
the  forces  of  the  United  States  in  South  Carolina 
during  the  period  of  reconstruction,  wholly  an- 
nulling a  decree  rendered  by  a  court  of  chancery 
in  that  State  in  a  case  within  its  jurisdiction, 
was  void.  It  was  an  arbitrary  stretch  of  author- 
ity, needful  to  no  good  end  that  can  be  im- 
agined. Whether  Congress  could  have  con- 
ferred the  power  to  do  such  an  act  is  a  question 
not  presented.  "It  is  an  unbending  rule  of 
law  that  the  exercise  of  miUtary  power  where 
the  rights  of  the  citizen  are  concerned  shall 
never  be  pushed  beyond  what  the  exigency 
requires."  (Raymond  v.  Thomas,  91  U.  S., 
712.) 

"The  instructions  to  the  governor  [of  Guam], 
dated  January  12,  1899,  prior  to  the  ratification 
of  the  treaty  of  peace  with  Spain,  contained  the 
following:  'Within  the  absolute  domain  of 
naval  authority,  which  necessarily  is  and  must 
remain  supreme  in  the  ceded  territory  imtil  the 
legislation  of  the  United  States  shall  otherwise 
provide,  the  municipal  laws  of  the  territory,  in 
respect  to  private  rights  and  property  and  the 
repression  of  crime,  are  to  be  considered  as  con- 
tinuing in  force  and  to  be  administered  by  the 
ordinary  tribunals  as  far  as  practicable.  The 
operations  of  civil  and  municipal  government 
are  to  be  performed  by  such  officers  as  may 
accept  the  supremacy  of  the  United  States  by 
taking  the  oath  of  allegiance  or  by  officers 
chosen  as  far  as  may  be  practicable  from  the 
inhabitants  of  the  island.'  These  instructions 
seem  not  to  have  been  superseded  in  June  and 
July,  1900.  Their  recognition  of  the  continu- 
ance in  force  of  the  munici])al  laws  of  the  terri- 
tory was  not  intended  as  more  than  a  recogni- 
tion of  what  would  have  been  presumed  in  the 
absence  of  instructions  and  can  not  be  regarded 
as  intended  to  deny  the  power  of  the  governor 
to  alter  the  laws.  _  They  were  continued  in  force 
as  to  the  inhabitants  among  themselves,  but 
not  to  control  the  governor;  that  is  to  say,  the 
government  itself.  His  power  as  military  gov- 
ernor was  intended  to  be  plenary.  He  had 
authority  to  do  what  the  exigencies  of  military 
government  required,  and  held  the  supreme 
legislative,  executive,  and  judicial  authority 
of  the  island.  At  that  time,  in  that  distant  and 
little-known  island,  the  President  could  not  do 
otherwise  than  leave  him  a  large  discretion, 
and  his  acts  should  not  be  held  void  upon 
strictly  technical  reasoning."  (25  Op.  Atty. 
Gen.,  59.) 


The  naval  governor  of  Guam  "exercises  ple- 
nary powers,  sul^ject  to  the  supervision  of  the 
Secretary  of  the  Navy  and,  of  course,  of  the 
President,  over  all  public  affairs  of  the  island 
of  Guam,  including  the  organization  and  pro- 
cedure of  the  local  courts  in  civil  and  criminal 
matters;"  his  authority  extends  "to  the  grant- 
ing of  reprieves  and  pardons,  one  of  the  highest 
prerogatives  of  sovereignty  and  executive 
power,"  and  includes  "the  modification  of  laws 
and  the  abolition  and  institution  of  courts;" 
he  "has  authority  to  prescribe  the  form  of  penal 
code  to  be  administered  and  to  modify  said 
code  at  his  pleasm-e,  subject  to  the  approval  of 
his  superiors."     (File  9351-976,  Dec.  3,  1910.) 

In  a  case  in  which  an  enlisted  man  of  the 
Marine  Corps  was  sentenced  by  the  civil  courts 
in  Guam  to  "banishment  for  six  months,"  this 
being  an  undesirable  punishment  to  impose 
upon  members  of  the  Government  forces,  the 
governor  of  Guam  may  be  directed  by  the  Sec- 
retary of  the  Navy  to  remit  that  portion  of  the 
sentence  in  the  case  presented  and  "to  issue 
immediately  the  necessary  order  or  decree 
abolishing  the  punishment  of  banishment  as  an 
appropriate  sentence  to  be  adjudged  by  the 
civil  courts  of  said  island  in  the  cases  of  all 
persons  in  the  naval  or  military  service  of  the 
United  States."     (File  9351-976,  Dec.  3,  1910.) 

In  the  absence  of  congressional  legislation, 
authority  of  the  naval  governor  of  Guam  is 
supreme.  He  is  accordingly  authorized  to  des- 
ignate place  of  confinement  for  prisoner  of  the 
naval  government  of  Guam,  within  territory 
under  sovereignty  of  the  United  States.  His 
action  in  designating  a  prison  in  the  Philippine 
Islands  as  place  of  confinement  meets  with 
approval  of  the  Secretary  of  the  Navy  in  the 
case  of  a  civilian  convicted  by  the  courts  of 
Guam  of  misappropriation  of  pul^lic  funds 
while  postmaster  at  Guam.  (File  9351-1436:4, 
June  3,  1915.) 

IV.  Status  of  Insular  Possessions, 

Status  of  conquered  and  ceded  territory 
after  war. — Military  possession  of  foreign  ter- 
ritory is  not  of  itself  sufficient  to  change  its 
foreign  character.  (See  cases  noted  undei 
Art.  I,  sec.  8,  clause  11,  "Power  to  acquire 
territory.")  "Nor  is  a  treaty  ceding  such  ter- 
ritory sufficient  without  a  surrender  of  posses- 
sion." But  there  is  no  authority  "for  holding 
that  a  district  ceded  to  and  in  the  possession  of 
the  United  States  remains  for  any  purpose  a 
foreign  country.  Both  these  conditions  must 
exist  to  produce  a  change  of  nationality  for 
revenue  purjwses."  (De  Lima  v.  Bid  well,  182 
U.  S.,  1,  as  to  status  of  Porto  Rico;  see  also 
Dooley  v.  U.  S.,  182  U.  S.,  236;  and  Downes  v. 
Bidwell,  182  U.  S.,  263.) 

"The  theory  that  a  country  remains  foreign 
with  respect  to  the  tariff  laws  until  Congress 
has  acted  by  embracing  it  within  the  customs 
union  presupposes  that  a  country  may  be 
domestic  for  one  purpose  and  foreign  for  an- 
other. It  may  undoubtedly  become  necessary 
for  the  adequate  administration  of  a  domestic 
territory  to  pass  a  special  act  providing  the 
proper  machinery  and  officers,  as  the  President 
would  have  no  authority,  except  under  the  war 
power,  to  administer  it  himself;  but  no  act  is 
necessary  to  make  it  domestic  territory  if  once 


111 


Art.  IV,  Sec.  3. 


PL  1.    THE  CONSTITUTION. 


Territories. 


it  has  been  ceded  to  the  United  States."  (De 
Lima  r.  Bidwell,  182  U.  S.,  1.) 

"Tlie  rhilipj)ines,  like  Porto  llico,  became 
by  virtue  of  the  treaty  ceded  conquered  terri- 
tory, or  territory  ceded  by  way  of  indemnity. 
Tlie  territory  ceased  to  be  situated  as  Castine 
was  when  occupied  by  the  British  forces  in  the 
'.Var  of  1812,  or  as  Tanipico  was  when  occupied 
by  the  troops  of  the  United  States  (hiring  the 
Mexican  ^\'ar,  'cases  of  temporary  possession 
of  territory  by  hiwful  and  regular  governments 
at  war  with  the  country  of  which  tlie  territory 
so  possessed  was  a  part.'  *  *  *.  The  Phil- 
ippines were  not  simply  occupied,  but  ac- 
quired, and,  having  been  granted  and  delivered 
to  the  United  States  by  their  former  master, 
were  no  longer  under  the  sovereignty  of  any 
foreign  nation."  (Fourteen  Diamond  Rings  v. 
U.  S.,  183  U.  S.,  177;  see  also  Lincoln  v.  U.  S., 
197  U.  S.,427.)_ 

A  port  in  the  island  of  Guam  is  not  a  "port  of 
the  United  States"  within  the  meaning  of  sec- 
tion 4347,  Revised  Statutes,  as  amended,  pro- 
hibiting the  transportation  of  merchandise  in 
foreign  bottoms  from  one  port  of  the  United 
States  to  another  port  of  the  United  States. 
This  legislation  has  not  been  expressly  ex- 
tended to  include  trade  with  Guam,  which  is  an 
unorganized  territory  of  small  extent,  concern- 
ing which  Congress  has  abstained  from  legis- 
lating almost  entirely;  "and  I  do  not  think,  in 
view  of  this  inaction  of  the  legislative  body, 
that  we  should  search  among  old  statutes  for 
fragments  of  law  which  we  can,  by  construc- 
tion, apply  to  the  island."  (25  Op.  Atty.  Gen., 
128.) 

V.  Application  of  Constitution  to  Terri- 
tories. 

Whether  constitutional  limitations  re- 
strict Congress  in  legislating  for  Territo- 
ries.— "The  people  of  the  United  States,  as 
sovereign  owners  of  the  National  Territories, 
have  supreme  power  over  them  and  their 
inhabitants.  In  the  exercise  of  this  sovereign 
dominion  they  are  represented  by  the  Gov- 
ernment of  the  United  States,  to  whom  all  the 
powers  of  government  over  that  subject  have 
been  delegated,  subject  only  to  such  restric- 
tions as  are  expressed  in  the  Constitution,  or 
are  necessarily  implied  in  its  terms,  or  in  the 
purposes  and  objects  of  the  power  itself;  for 
it  may  well  be  admitted  in  respect  to  this  as 
to  every  power  of  society  over  its  members, 
that  it  18  not  absolute  and  unlimited."  (Mur- 
phy V.  Ramsey,  114  U.  S.,  15.) 

"Doubtless  Congress,  in  legislating  for  the 
Territories,  would  be  subject  to  those  funda- 
mental limitations  in  favor  of  personal  rights 
which  are  formulated  in  the  Constitution  and 
its  amendments;  but  these  limitations  would 
exist  rather  by  inference  and  the  general  spirit 
of  the  Constitution,  from  which  Congress 
derives  all  its  powers,  than  by  any  express 
and  distinct  application  of  its  provisions." 
(Mormon  Church  Case,  136  U.  S.,  1;  American 
Publishing  Co.  v.  Fisher,  166  U.  S.,  464.) 

"WTiile,  therefore,  there  is  no  express  or 
implied  limitation  on  Congress  in  exercising 
its  power  to  create  local  governments  for  any 


or  all  of  the  Territories,  by  which  that  body 
is  restrained  from  the  widest  latitude  of  dis- 
cretion, it  does  not  follow  that  there  may  not 
be  inherent,  although  unexpressed,  principles 
which  are  the  basis  of  all  free  governments, 
which  can  not  bo  with  immunity  transcended. 
*  *  *  But  this  does  not  suggest  that  every 
express  limitation  of  the  Constitution  which  is 
applicable  has  not  force,  but  only  signifies 
that  even  in  cases  where  there  is  no  direct 
command  of  the  Constitution  which  applies, 
there  may  nevertheless  be  restrictions  of  so 
fundamental  a  nature  that  they  can  not  be 
transgressed,  although  not  expressed  in  so  many 
words  in  the  Constitution."  (Downes  v.  Bid- 
well,  182  U.  S.,  244.) 

"  LFndoubtedly  there  are  general  prohibitions 
in  the  Constitution  in  favor  of  the  liberty  and 
property  of  the  citizen,  which  are  not  mere 
regulations  as  to  form  and  manner  in  which  a 
conceded  power  may  be  exercised,  but  which 
are  absolute  denials  of  all  authority  under  any 
circumstances  or  conditions,  to  do  particular 
acts.  In  the  nature  of  things,  limitations  of 
this  character  can  not,  under  any  circumstances, 
be  transcended,  because  of  complete  absence 
of  power."  (Downes  v.  Bidwell,  182  U.  S., 
244.) 

"There  is  a  clear  distinction  between  such 
prohibitions  as  go  to  the  very  root  of  the  power 
of  Congress  to  act  at  all,  irrespective  oi  time 
and  place,  and  such  as  are  operative  only 
'throughout  the  United  States,'  or  among  the 
several  States.  Thus,  when  the  Constitution 
declares  that  'no  bill  of  attainder  or  ex  post 
facto  law  shall  be  passed,'  and  that  'no  title 
of  nobility  shall  be  granted  by  the  United 
States,'  it  goes  to  the  competency  of  Congress 
to  pass  a  bill  of  that  description.  Perhaps  the 
same  remark  may  be  applied  to  the  fifth  amend- 
ment, that  'Congress  shall  make  no  law  respect- 
ing an  establishment  of  religion  or  prohibiting 
the  free  exercise  thereof;  or  abridging  the 
freedom  of  speech;  or  of  the  press;  or  the  right 
of  the  people  to  peacefully  assemble  and  to 
petition  the  Government  for  a  redress  of 
grievances.'  We  do  not  wish,  however,  to  be 
understood  as  expressing  an  opinion  how  far 
the  Bill  of  Rights  contained  in  the  first  eight 
amendments  is  of  general  and  how  far  of  local 
application.  *  *  *  We  suggest,  without 
intending  to  decide,  that  there  may  be  a  dis- 
tinction between  certain  natural  rights  enforced 
in  the  Constitution  by  proliibitions  against 
interference  with  them,  and  what  may  be 
termed  artificial  or  remedial  rights  which  are 
peculiar  to  our  system  of  jurisprudence.  Of 
the  former  class  are  the  rights  to  one's  own 
religious  opinions  and  to  a  public  expression  of 
them,  or,  as  sometimes  said,  to  worship  God 
according  to  the  dictates  of  one's  own  con- 
science; the  right  to  personal  liberty  and  indi- 
vidual property,  to  freedom  of  speech  and  of 
the  press;  to  free  access  to  courts  of  justice,  to 
due  process  of  law,  and  to  an  equal  protection 
of  the  laws;  to  immunities  from  unreasonable 
searches  and  seizures,  as  well  as  cruel  and  un- 
usual punishments;  and  to  such  other  immu- 
nities as  are  indispensable  to  a  free  govern- 
ment." (Downes  v.  Bidwell,  182  U.  S.,  244, 
opinion  Mr.  Justice  Brown.) 


112 


Territories. 


Ft.  1.  THE  CONSTITUTION. 


Art.  IV,  Sec.  3. 


To  hold  that  the  prohibitions  of  the  fourth 
amendment,  against  imreasonable  searches  and 
seizures,  is  a  restriction  upon  Congress  and  yet 
not  a  restriction  upon  a  government  created  by 
Congress,  would  be  a  contradiction  of  terms. 
Accordingly,  held  that  tlie  fourth  amendment 
is  applicable  to  territorial  governments.  (Ter- 
ritory V.  Cutinola,  4  N.  Mex.,  305, 14  Pac,  809.) 

"AMiatever  may  be  finally  decided  by  the 
American  people  as  to  the  status  of  these  is- 
lands and  their  inhabitants — whether  they  shall 
be  introduced  into  the  sisterhood  of  States  or  be 
permitted  to  form  independent  governments- 
it  does  not  follow  that  in  the  meantime,  await- 
ing that  decision,  the  people  are  in  the  matter 
of  personal  rights  unprotected  by  the  pro\isions 
of  our  Constitution  and  subject  to  the  nierely 
arbitrary  control  of  Congress.  Even  if  re- 
garded as  aliens,  they  are  entitled,  under  the 
principles  of  the  Constitution,  to  be  protected 
in  life,  liberty,  and  property.  Tlus  has  been 
frequently  held  by  tliis  court  in  respect  to  the 
Chinese,  even  when  aliens,  not  possessed  of  the 
political  rights  of  citizens  of  the  United  States. 
*  *  *  We  do  not  desire,  however,  to  antici- 
pate the  difficulties  which  would  naturally 
arise  in  this  connection,  but  merely  to  disclaim 
any  intention  to  hold  that  the  inhabitants  of 
these  territories  are  subject  to  an  unrestrained 
power  on  the  part  of  Congress  to  deal  with  them 
upon  the  theory  that  they  have  no  rights  which 
it  is  bound  to  respect."  (Downes  •?;.  Bidwell, 
182  U.  S.,  244,  opinion  Mr.  Justice  Brown.) 

"The  Constitution  speaks,  not  simply  to  the 
States  in  their  organized  capacities,  but  to  all 
peoples,  whether  of  States  or  Territories,  who 
are  subject  to  the  authoritv  of  the  United 
States."  (Downes  v.  Bidwell,  182  U.  S.,  244, 
opinion  Mr.  Justice  Harlan,  dissenting.) 

"There  is  nothing  in  the  history  of  the  Con- 
stitution or  of  the  original  amendments  to 
justify  the  assertion  that  the  people  of  this  dis- 
trict [District  of  Columbia]  may  be  lawfully 
deprived  of  the  benefit  of  any  of  the  constitu- 
tional guaranties  of  life,  liberty,  and  property — 
especially  of  the  privilege  of  trial  by  jury  in 
criminal  cases."  (Callan  v.  Wilson,  127  U.  S., 
540;  see  also  Capital  Traction  Co.  v.  Hof,  174 
U.  S.,  5.) 

SeeRassmussenv.U.  S.  (197U.S.,  522),  hold- 
ing the  provisions  of  the  Constitution  appli- 
cable to  Alaska;  Neely  v.  Henkel  (180  U.  S., 
122),  holding  Constitution  not  applicable  to 
Cuba  during  military  occupation  by  United 
States;  Hawaii  v.  Mankichi  (190  U.  S.,  211),  as 
to  Hawaii,  holding  that  "'most,  if  not  all,  the 
pri\'ileges  and  immunities  contained  in  the 
Bill  of  Rights  of  the  Constitution  were  intended 
to  apply  from  the  moment  of  annexation;"  see 
also  Dorr  r.  U.  S.  (195  U.  S.,  138)  as  to  Philip- 
pines; and  Reynolds  v.  U.  S.  (98  U.  S.,  145)  and 
Wilkerson  v.  Utah  (99  U.S.,  133)  as  to  Territory 
of  Utah. 

By  section  1891,  Revised  Statutes,  it  was 
provided  that  "The  Constitution  and  all  laws 
of  the  United  States  which  are  not  locally  inap- 
plicable shall  have  the  same  force  and  effect 
within  all  the  organized  Territories,  and  in 
every  Territory  hereafter  organized,  as  else- 
where within  the  United  States."  ["Guam  is 
an  unorganized  territory    *    *    *."     (25  Op. 


Atty.  Gen.,  128.)  So  also  are  the  Virgin  Is- 
lands of  the  United  States,  notwithstanding 
the  act  of  March  3,  1917  (39  Stat.,  1132),  pro- 
viding a  temporary  government  therefor.  (32 
Op.  Atty.  Gen.,  118,  construing  sec.  1860,  R. 
S.,  as  amended.)] 

When  the  Constitution  has  once  been  form- 
ally extended  by  Congress  to  Territories,  neither 
Congress  nor  the  Territorial  legislature  can  enact 
laws  inconsistent  therewith.  (Downes  v.  Bid- 
well,  182  U.  S.,  270.) 

For  decisions  as  to  whether  constitutional 
limitations  restrict  Congress  in  legislating  for 
the  Na^'y,  see  note  to  Article  1,  section  8, 
clause  14. 

VI.  Status  of  Inhabitants  of  Insular 
Possessions. 

Citizenship  in  territories. — The  treaty  of 
peace  with  Spain,  ceding  to  the  United  States 
Porto  Rico,  Guam,  and  the  Philippine  Islands, 
provided  that  "the  civil  rights  and  political 
status  of  the  native  inhabitants  of  the  terri- 
tories hereby  ceded  to  the  United  States  shall 
be  determined  by  Congress."  The  inhabitants 
of  the  Philippine  Islands  were  declared  "citi- 
zens of  the  Philippine  Islands  and  as  such  en- 
titled to  the  protection  of  the  United  States." 
(Act  July  1,  1902,  32  Stat.,  691.)  The  inhabit- 
ants of  Porto  Rico  were  declared  "citizens  of 
Porto  Rico  and  as  such  entitled  to  the  protec- 
tion of  the  United  States."  (Act  Apr.  12, 1900, 
31  Stat.,  77.)  The  naturalization  act  of  June  29, 
1906,  section  30  (34  Stat.,  606),  provided  for  the 
naturalization,  upon  compliance  therewith,  of 
persons  "not  citizens  who  owe  permanent  alle- 
giance to  the  United  States."  Inhabitants  of 
Guam  desiring  to  become  citizens  of  the  United 
States  may  be  naturalized  by  application  to  a 
court  of  competent  jurisdiction  in  the  United 
States,  but  can  not  be  naturalized  by  any 
court  in  Guam.  (File  262.52-90,  Feb.  27,  1914, 
see  also  file  26252-96,  Feb.  10,  1915;  compare 
29  Op.  Atty.  Gen.,  521,  as  to  Porto  Rico,  and 
see  note  to  amendments,  Article  XIV.)  The 
citizen.'?  of  Hawaii  were  made  citizens  of  the 
United  States  by  act  of  April  30, 1900  (31  Stat., 
141). 

A  citizen  of  Porto  Rico  is  not  eligible  for 
appointment  as  second  lieutenant  in  the  Marine 
Corps  (file  6730-04;  as  to  eligibility  for  employ- 
ment at  navy  yards,  see  file  3194-3  and  3194-4; 
and  seeU.  S.  v.  Bowyer,  25  App.  D.  C,  121.) 

By  act  of  March  2,  1917  (39  Stat.,  953,  sec. 
5),  certain  "citizens  of  Porto  Rico  "  were  de- 
clared citizens  of  the  United  States  and  pro- 
vision was  made  for  the  naturalization  of  others. 

Certain  Danish  citizens  residing  in  the  Vir- 
gin Islands  of  the  United  States  were  to  be 
held  "to  have  accepted  citizenship  in  the 
United  States,"  and  provision  was  made  for 
the  naturalization  of  others  by  convention  be- 
tween the  United  States  and  Denmark,  pro- 
claimed January  25,  1917  (39  Stat.  1706,  1712). 
(See  file  26252-143:3,  July  14,  1919.) 

Native  inhabitants  of  island  possessions 
are  not  "aliens." — "Citizens  of  Porto  Rico, 
whose  permanent  allegiance  is  due  to_  the 
United  States;  who  live  in  the  peace  of  the 
dominion  of  the  United  States;  the  organic  law 


113 


Art.  VI. 


PL  1.   THE  CONSTITUTION. 


Validity  of  Debts. 


of  whose  domicile  was  enacted  by  the  United 
States  and  is  enforced  through  officials  sworn 
to  support  the  Constitution  of  the  United 
States,  are  not  'aliens'  and  upon  their  arrival 
by  water  at  the  ports  of  our  mainland  are  not 
'alien  immigrants'  within  the  intent  and  mean- 
ing of  the  act  of  1891"  providing  for  detention 
and  deportation  under  certain  conditions. 
(Gonzales  v.  Williams,  192  U.  S.,  1.) 

Naturalization  of  natives. — "Citizens  of 
the  Philippine  Islands  or  of  Porto  Rico,  while 
not  citizens  of  the  United  States,  are  not  aliens, 
and,  prior  to  the  passage  of  the  act  of  1906  [34 
Stat . ,  596] ,  were  not  capable  of  being  naturalized 
for  two  reasons:  First,  the  naturalization  laws 
of  the  United  States  applied  only  to  aliens; 
and,  second,  they  required  a  renunciation  of 
former  allegiance  *  *  *,  The  effect  of  sec- 
tion 30  [act  of  1906]  was  to  make  applicable  to 


citizens  of  the  Philippine  Islands  and  Porto 
Rico  those  provisions  which  had  theretofore 
applied  only  to  aliens  *  *  *.  Congress  did 
not  intend  to  extend  the  privilege  of  citizen- 
ship to  those  who  had  become  citizens  of  the 
Philippine  Islands  under  the  act  of  1902,  unless 
they  were  free  white  persons  or  of  African 
nativity  or  descent,"  as  required  by  section 
2109,  Revised  Statutes.  Accordingly,  held  that 
"a  citizen  of  the  Philippine  Islands  who  ethno- 
logically  was  one-fourth  white  and  three-fourths 
brown  or  Malay  could  not  be  naturalized,"  and 
the  fact  that  he  had  service  in  the  Navy  did 
not  affect  his  status  under  section  2169,  Revised 
Statutes.  (In  re  Alverto,  198  Fed.  Rep.,  688; 
see  also  note  to  amendments,  Article  XIV  and 
see  naturalization  act  of  May  9,  1918.) 

For  other  cases,  as  to  citizenship  in  gen- 
eral, see  note  to  amendments,  Article  XIV. 


Section  4.  [States  guaranteed  protection  and  republican  form  of  govern- 
ment.] The  United  States  shall  guarantee  to  every  State  in  this  Union  a  Republi- 
can Form  of  Government,  and  shall  protect  each  of  them  against  Invasion; 
and  on  Apphcation  of  the  Legislature,  or  of  the  Executive  (when  the  Legis- 
lature cannot  be  convened)  against  domestic  Violence. 


TJse  of  naval  vessel  loaned  to  State  for 
training  of  naval  militia. — "In  accordance 
with  the  pro\dsions  of  the  Constitution  and  of 
the  laws  enacted  in  pursuance  thereof,  the  Presi- 
dent, incases  not  affecting  the  execution  of  the 
laws  or  the  protection  of  the  property  of  the 
United  States,  may  use  the  military  or  naval 
forces  of  the  United  States  within  the  boundaries 
of  the  several  States  only  on  application  of  the 
legislature  of  the  State,  or,  in  case  the  legislature 
cannot  be  convened,  on  application  of  the  gov- 
ernor. In  other  words,  it  is  considered  that  the 
President,  except  as  indicated,  is  not  legally 
authorized  to  use,  or  permit  to  be  used,  the 
naval  forces  under  his  command  to  assist  any 
particular  State  in  the  maintenance  of  law  and 
order  within  its  boundaries.    As  a  naval  vessel 


is  one  of  the  integral  and  most  important  units 
going  to  make  up  the  naval  forces  of  the  United 
States,  it  would  seem  that  this  proliibition  to  the 
use  of  the  naval  forces  would  extend  to  such  an 
important  part  thereof  as  a  naval  vessel  that 
is  armed  and  equipped  for  war.  *  *  * 
Should  occasion  ever  arise  in  the  future  making 
desirable  the  use  of  the  Montgomery  for  the  pur- 
poses referred  to  by  the  State,  [to  quell  "riots, 
insurrection,  or  defiance  of  civil  law  witliin  the 
State  limits  "  ]  it  is  considered  that  the  only  law- 
ful manner  in  which  the  vessel  could  be  so  used 
would  be  in  accordance  with  the  provisions  of 
the  Constitution,  upon  'application  of  the  legis- 
lature or  of  the  executive  (when  the  legislature 
cannot  be  convened)'  made  to  the  President." 
(File  4570-194,  Mar.,  15,  1915.) 


ARTICLE  V. 

[Procedure  to  amend  Constitution,]  The  Congress,  whenever  two-thirds  of 
both  Houses  shall  deem  it  necessary,  shall  propose  Amendments  to  this  Con- 
stitution, or,  on  the  Application  of  the  Legislatures  of  two-thirds  of  the  several 
States,  shall  caU  a  Convention  for  proposing  Amendments,  which,  in  either 
Case,  shall  be  vahd  to  all  Intents  and  Purposes,  as  part  of  this  Constitution, 
when  ratified  by  the  Legislatures  of  three-fourths  of  the  several  States,  or  by 
Conventions  in  three-fourths  thereof,  as  the  one  or  the  other  Mode  of  Ratifica- 
tion may  be  proposed  by  the  Congress;  Provided  that  no  Amendment  which 
may  be  made  prior  to  the  Year  One  thousand  eight  hundred  and  eight  shall  in 
any  Manner  affect  the  first  and  fourth  Clauses  in  the  Ninth  Section  of  the  first 
Article ;  and  that  no  State,  without  its  Consent,  shall  be  deprived  of  it's  equal 
Suffrage  in  the  Senate. 

ARTICLE  VI. 

[Clause  1.  Validity  of  debts  and  engagements.]  ^  All  Debts  contracted  and 
Engagements  entered  into,  before  the  Adoption  of  this  Constitution,  shall  be  as 


114 


Ratification.  Pt.  1.   THE  CONSTITUTION.  Art.  VII. 

valid  against  the  United  States  under  this  Constitution,  as  under  the  Confed- 
eration. 

[Clause  2.  Supreme  law  of  the  land.]  ^  This  Constitution,  and  the  Laws  of 
the  United  States  which  shaU  be  made  in  Pursuance  thereof;  and  all  Treaties 
made,  or  which  shall  be  made,  under  the  Authority  of  the  United  States,  shall 
be  the  supreme  Law  of  the  Land;  and  the  Judges  in  every  State  shall  be  bound 
thereby,  any  Thing  in  the  Constitution  or  Laws  of  any  State  to  the  Contrary 
notwithstanding. 

[Clause  3.  Oaths  of  public  officers;  no  religious  test.]  ^  The  Senators  and 
Representatives  before  mentioned,  and  the  Members  of  the  several  State 
Legislatures,  and  all  executive  and  judicial  Officers,  both  of  the  United  States 
and  of  the  several  States,  shall  be  bound  by  Oath  or  Affirmation,  to  support 
this  Constitution ;  but  no  religious  Test  shall  ever  be  required  as  a  Qualification 
to  any  Office  or  public  Trust  under  the  United  States. 

ARTICLE  VII. 

[Ratification  of  Constitution.]  The  Ratification  of  the  Conventions  of  nine 
States  shall  be  sufficient  for  the  Establishment  of  this  Constitution  between 
the  States  so  ratifying  the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of  the  States  present  the 
Seventeenth  Day  of  September  in  the  Year  of  our  Lord  one  thousand  seven 
hundred  and  Eighty  seven  and  of  the  Independence  of  the  United  States  of 
America  the  Twehth.  In  Witness  whereof  We  have  hereunto  subscribed 
our  Names, 

Go  WASHINGTON 
Presidt  and  deputy  from  Virginia 

New  HampsMre. 
John  Langdon  Nicholas  Oilman 

Massachusetts. 
Nathaniel  Gorham  Rueus  Ejng 

Connecticut. 
Wm  Saml  Johnson  ~  Roger  Sherman 


New  YorJc. 


Alexander  Hamilton 


New  Jersey. 

Wil:  Livingston  Wm  Patterson 

David  Brearley,  Jona:  Dayton 

Pennsylvania. 

B.  Franexin  Thomas  Mifflin 

Robt.  Morris  Geo.  Clymer 

Thos.  Fitzsimons  Jared  Ingersoll 

James  Wilson  Gouv  Morris 

115 


First  Amendment. 


Geo:  Read 
John  Dickinson 
Jaco:  Broom 

James  McHenry 
Danl  Carroll 

John  Blair — 


Wm  Blount 
Hu  Williamson 

J.  Rutledge 
Charles  Pinckney 


William  Few 
Attest: 


PL  1.    THE  CONSTITUTION. 
Delaware. 


Freedom  of  Speech. 


Gunning  Bedford  jun 
Richard  Bassett 

Maryland. 

Dan:  of  St  Thos  Jenifer 

Virginia. 

James  Madison  Jr. 
North  Carolina. 

RiCHD   DOBBS    SpAIGHT, 

South  Carolina. 

Charles  Cotesworth  Pinckney 
Pierce  Butler. 

Georgia. 

Abr  Baldwin 
WILLIAM  JACKSON,  Secretary. 


Articles  in  Addition  To,  and  Amendment  Of,  the  Constitution  of 
THE  United  States  of  America,  Proposed  by  Congress,  and  Ratified 
by  the  Legislatures  of  the  Several  States,  Pursuant  to  the  Fifth 
Article  of  the  Original  Constitution. 

[ARTICLE  I.] 

[Freedom  of  religion,  speech,  and  press ;  and  right  of  assembly  and  petition.] 
Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  pro- 
hibiting the  free  exercise  thereof;  or  abridging  the  freedom  of  speech,  or  of  the 
press;  or  the  right  of  the  people  peaceably  to  assemble,  and  to  petition  the 
Government  for  a  redress  of  grievances. 


The  Bill  of  Rights.— "The  law  is  perfectly 
well  settled  that  the  first  10  amendments  of  the 
Constitution,  commonly  known  as  the  Bill  of 
Rights,  were  not  intended  to  lay  down  any 
novel  principles  of  government,  but  simply  to 
embody  certain  guaranties  and  immunities 
which  we  had  inherited  from  our  English  an- 
cestors, and  which  had  from  time  immemorial 
been  subject  to  certain  well  recognized  excep- 
tions arising  from  the  necessities  of  the  case." 
(Robertson  v.  Baldwin,  165  U.  S.,  275.) 

"These  securities  in  personal  liberty,  thus 
embodied ,  were  such  as  wisdom  and  experience 
had  demonstrated  to  be  necessary  for  the  pro- 
tection of  those  accused  of  crime.  *  *  * 
Time  has  proven  the  discernment  of  our  ances- 
tors.    *    *    *    Those  great  and  good  men  fore- 


saw that  troublous  times  would  arise  when  ruiers 
and  people  would  become  restive  under  restraint 
and  seek  by  sharp  and  decisive  measures  to 
accomplish  ends  deemed  just  and  proper;  and 
that  the  principles  of  Constitutional  liberty 
would  be  in  peril  unless  established  by  irre- 
pealable  law.  *  *  *  The  Constitution  of 
the  United  States  is  a  law  for  rulers  and  people, 
equally  in  war  and  in  peace.  *  *  *  No 
doctrine  involving  more  pernicious  conse- 
quences was  ever  invented  by  the  wit  of  man 
than  that  any  of  its  provisions  can  be  suspended 
during  any  of  the  great  exigencies  of  govern- 
ment." (Ex  parte  Milligan,  4  Wall.,  3,  120. 
But  see  note  to  Art.  I,  sec.  8,  clause  11,  "Mili- 
tary jurisdiction  over  civilians  in  time  of  war," 
and  Art.  I,  sec.  9,  clause  2.) 


116 


Searches  and  Seizures. 


Pt.  1.  THE  CONSTITUTION. 


Fourth  Amendment. 


[ARTICLE  II.] 

[The  right  to  bear  arms.]  A  well  regulated  Militia,  being  necessary  to  the 
security  of  a  free  State,  the  right  of  the  people  to  keep  and  bear  Arms,  shall 
not  be  infringed. 

reserved  military'  force  of  the  National  Govern- 
ment, as  well  as  in  view  of  its  general  powers, 
the  State  can  not  prohibit  the  people  from 
keeping  and  bearing  arms,  so  as  to  deprive  the 
United  States  of  their  rightful  resource  for  main- 
taining the  public  security."  (Presser  v.  Illi- 
nois, 116  U.  S.,  252.) 


"The  provision  of  the  Second  Amend- 
ment to  the  Constitution,  that  'the  right  of  the 
people  to  keep  and  bear  arms  shall  not  be  in- 
fringed,' is  a  limitation  only  on  the  power  of 
Congress  and  the  National  Government,  and  not 
of  the  States.  But  in  view  of  the  fact  that  all 
citizens  capable  of  bearing  arms  constitute  the 


[ARTICLE  III.j 

[Quartering  of  soldiers  in  houses.]  Xo  Soldier  shall,  in  time  of  peace  be 
quartered  in  any  house,  without  the  consent  of  the  Owner,  nor  in  time  of  war, 
but  in  a  manner  to  be  prescribed  by  law. 

[ARTICLE  IV.] 

[Security  from  unreasonable  searches  and  seizures.]  The  right  of  the  people 
to  be  secure  in  their  persons,  houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated,  and  no  Warrants  shaU  issue,  but 
upon  probable  cause,  supported  by  Oath  or  affirmation,  and  particularly  describ- 
ing the  place  to  be  searched,  and  the  persons  or  things  to  be  seized. 


Unreasonable  searches  and  seizures. — 

"The  constitutional  guaranties  of  the  right  of 
the  people  to  be  secure  in  their  papers  against 
unreasonable  searches  and  seizures  extends  to 
their  papers,  thus  closed  against  inspection, 
wherever  they  may  be.  Whilst  in  the  mail 
they  can  only  be  opened  and  examined  under 
like  warrant,  issued  upon  similar  oath  or  affirma- 
tion and  particularly  describing  the  thing  to  be 
seized,  as  is  required  when  papers  are  subjected 
to  search  in  one's  own  household.  No  law  of 
Congress  can  place  in  the  hands  of  officials 
connected  with  the  postal  service  any  authority 
to  invade  the  secrecy  of  letters  and  such  sealed 
packages  in  the  mail;  and  all  regulations 
adopted  as  to  mail  matter  of  this  kind  must  be 
in  subordination  to  the  great  principle  em- 
bodied in  the  fourth  amendment  of  the  Con- 
stitution."    (Ex  parte  Jackson,  96  U.  S.,  727.) 

"Prison  authorities  have  no  right  to  open  and 
inspect  letters  to  or  sent  by  prisoners  without 
the  consent  of  such  prisoners.  They  may,  how- 
ever, retain  unopened  letters  until  the  prisoner 
is  released  or  the  letters  otherwise  lawfully  dis- 
posed of."  (Art.  68,  Manual  for  Government  of 
United  States  Naval  Prisons. "l 

The  fourth  and  fifth  amendments  "throw 
great  light  on  each  other.  For  the  'unreason- 
able searches  and  seizures'  condemned  in  the 
fourth  amendment  are  almost  always  made  for 
the  purpose  of  compelling  a  man  to  give  evi- 
dence against  himself,  which  in  criminal  cases 
is  condemned  in  the  fifth  amendment;  and 
compelling  a  man  'in  a  criminal  case  to  be  a 
witness  against  himself,'  which  is  condemned 
in  the  fifth  amendment,  throws  light  on  the 


question  as  to  what  is  an  '  imreasonable  search 
and  seizure'  within  the  meaning  of  the  fourth 
amendment.  And  we  have  been  unable  to 
perceive  that  the  seizure  of  a  man's  private 
books  and  papers  to  be  used  in  evidence  against 
him  is  substantially  different  from  compelling 
him  to  be  a  witness  against  himself."  (Boyd  v. 
U.  S.,  116  U.S.,  633.) 

"The  security  intended  to  be  guaranteed  by 
the  fourth  amendment  against  wrongful  search 
and  seizures  is  designed  to  prevent  violations 
of  private  security  in  person  and  property  and 
unlawful  invasion  of  the  sanctity  of  the  home 
of  the  citizen  by  officers  of  the  law,  acting 
under  legislative  or  judicial  sanction,  and  to 
give  remedy  against  such  usurpations  when 
attempted.  But  the  English  and  nearly  all  of 
the  American  cases  have  declined  to  extend 
this  doctrine  to  the  extent  of  excluding  testi- 
mony which  has  been  obtained  by  such  means, 
if  it  is  otherwise  competent."  (Adams  v.  New 
York,  192  U.  S.,  597.)  But  one  whose  property 
has  been  illegally  seized  and  is  being  held  by 
officers  of  the  law  for  the  purpose  of  using  same 
as  evidence  in  a  criminal  prosecution,  may 
recover  the  possession  thereof  by  legal  pro- 
ceedings and  thus  prevent  its  being  used 
against  him.  (Weeks  v.  U.  S.,  232  U.  S.,  383. 
See  further,  note  to  Amendments,  Art.  V, 
' '  Self-Crimination . " ) 

Arrest  of  military  offenders. — "A  de- 
serter may  be  arrested  by  a  military  officer,  or 
private  duly  authorized  to  make  the  arrest." 
(In  re  Fair,  100  Fed.  Rep.,  149,  152.) 

An  officer  of  the  Army  may  lawfully  arrest  a 
deserter  and  hold  him  for  trial  by  court-martial 


117 


Fifth  Amendment. 


Ft.  1.   THE  CONSTITUTION. 


Indictment, 


(IIut('hin<irs  v. 
cited  in  is.iirtz 


Van  r.ok- 
V.  Mollitt, 


without  a  warrant, 
kelk'n,  \\\  Me.,  120; 
115  U.  S.,  504.) 

"Of  course  the  right  of  military  otlicers, 
whether  of  the  Army  or  Navy,  to  apprehend 
and  return  deserters  is  interwoven  in  the  very 
fabric  of  the  organization  and  administration 
both  of  the  Army  and  the  Navy."  (File 
5021-1,  Nov.  17,  1906,  Attorney  General  to 
Secretary  of  the  Navy.) 

In  the  absence  of  legislation,  "a  police  officer 
of  a  State,  or  a  private  citizen,  has  no  authority 
as  such,  without  any  warrant  or  military  order, 
to  arrest  and  detain  a  deserter  from  the  Army 
of  the  United  States."  (Kurtz  v.  Molfitt,  115 
U.  S.,  487;  compare  file  5621,  letters  from 
Attorney  General  to  Secretary  of  the  Navy, 
Sept.  18  and  Nov.  17,  1906.) 

It  has  been  provided  by  statute  "that  it  shall 
be  lawful  for  any  civil  ollicer  having  authority 
under  the  laws  of  the  United  States  or  of  any 
State,  Territory,  or  District  to  arrest  offenders, 
to  summarily  arrest  a  deserter  from  the  Navy 
or  Marine  Corps  of  the  United  States  and  de- 
liver him  into  the  custody  of  the  naval  author- 
ities." (Act  Feb.  16, 1909,  sec.  15,  35  Stat.,  622; 
see  also  act  June  18,  1898,  30  Stat.,  484,  with 
reference  to  the  Army.) 

"Deserters  may  legally  be  arrested  (1)  by 
any  officer  or  duly  authorized  enlisted  man  in 
the  naval  service;  (2)  by  any  civil  officer  hav- 
ing general  or  special  authority  to  arrest  offend- 
ers within  any  given  jurisdiction;  (3)  by  private 


detectives  who  are  authorized  to  make  arrests; 
and  (4)  by  any  person  who  is  e.xpressly  author- 
ized by  the  naval  authorities  to  arrest  deser- 
ters." (File  26516-92:1,  Sept.  27, 1912;  see  also 
26516-218.) 

"WTien  a  deserter  is  delivered  to  the  Navy, 
the  fact  that  the  person  who  arrested  liim  was 
not  authorized  to  make  such  an  arrest  is  not 
legal  ground  for  his  discharge  from  naval  cus- 
tody *  *  *.  This  is  a  matter  in  which  the 
Government  has  no  concern,  persons  who  as- 
sume to  arrest  deserters  without  legal  authority 
therefor  doing  so  at  their  peril."  (File  26516- 
92:1,  Sept.  27,  1912.) 

"A  reward  for  the  arrest  of  a  deserter  or  strag- 
gler with  authorized  expenses  incurred  in  his 
return  to  the  service  may  be  paid  to  a  private 
detective  agency  notwithstanding  the  prohibi- 
tion in  the  act  of  March  3, 1893  (27  Stat.,  591), 
against  the  employment  in  any  Government 
service  of  an  'employee  of  the  Finkerton  De- 
tective Agency,  or  similar  agency.'  "  (File 
26516-38,  Dec.  3,  1910;  file  26516-92:1,  Sept. 
27,  1912.) 

The  Navy  Department  "desires  that  detec- 
tive work  in  connection  with  the  apprehension 
and  delivery  of  deserters  from  the  Navy  in  the 
United  States  shall  be  confined  to  recognized 
police  officers.  It  is  considered  undignified 
and  undesirable  to  encourage  or  employ  the 
services  of  private  detectives  or  agents  for  such 
purposes,  and  the  practice  will  be  discon- 
tinued."    (File  24918,  July  17,  1907.) 


[ARTICLE  v.] 

[Indictment  required ;  provision  against  double  jeopardy  and  compulsory  self- 
incrimination  ;  protection  of  life,  liberty,  and  property.]  No  person  shall  be  held 
to  answer  for  a  capital,  or  otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  Grand  Jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  Militia,  when  in  actual  service  in  time  of  War  or  public  danger;  nor 
shall  any  person  be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy  of 
life  or  limb ;  nor  shall  be  compelled  in  any  criminal  case  to  be  a  witness  against 
himself,  nor  be  deprived  of  life,  liberty,  or  property,  without  clue  process  of 
law;  nor  shall  private  property  be  taken  for  public  use,  without  just  compen- 
sation. 


Indictment  by  Grand  Jury. 
Protection  Against  Double  Jeopardy. 
Compelling     Person    to    be    Witness 

Against  Himself. 
Protection     op    Life,     Liberty,   and 
Property. 
V.  Presence  of  Accused  at  Trial. 
VI.  Remedy  when  Due  Process  Denied. 


I. 

II. 

III. 

IV. 


I.  Indictment  by  Grand  Jury. 

Infamous  crime. — A  crime  is  "infamous" 
where  it  is  punishable  by  imprisonment  in  a 
state  prison  or  penitentiary,  whether  the  ac- 
cused is  or  is  not  sentenced  or  put,  to  hard  labor. 
"In  determining  whether  the  crime  is  infa- 
mous, the  question  is,  Whether  it  is  one  for 


which  the  statute  authorizes  the  court  to  award 
an  infamous  punishment,  and  not  whether  the 
punishment  ultimately  awarded  is  an  infamous 
one."     (In  re  Claasen,  140  U.  S.,  200.) 

"\Vhat  punishments  may  be  considered  as  in- 
famous may  be  affected  by  the  changes  of  public 
opinion  from  one  age  to  another.  In  former 
times,  being  put  in  the  stocks  was  not  consid- 
ered as  necessarily  infamous.  And  by  the  first 
judiciary  act  of  the  United  States  whipping  was 
classed  with  moderate  fines  and  short  terms  of 
imprisonment  in  limiting  the  criminal  jurisdic- 
tion of  the  District  coiurts  to  cases  'where  no  other 
pimishment  than  whipping,  not  exceeding  thirty 
stripes,  a  fine  not  exceeding  one  hundred  dollars, 
or  a  term  of  imprisonment  not  exceeding  six 
months,  is  to  be  inflicted.'  *  *  *  But  at  the 
present  day  either  stocks  or  whipping  might  be 
thought  an  infamous  punishment.  For  more 
than  a  century  imprisonment  at  hard  labor  in  the 


118 


Double  Jeopardy. 


Pt.  1.   THE  CONSTITUTION. 


Fifth.  Amendment. 


State  prison  or  penitentiary  or  other  institution 
has  been  considered  an  infamous  punishment  in 
England  and  America."  (^Ex  parte  Wilson, 
114  U.  S.,417.) 

Grand  jtiry. — The  limitation,  "When  in 
actual  service  in  time  of  war  or  public  danger," 
in  this  article,  refers  only  to  the  militia,  and 
does  not  apply  to  the  regular  land  and  naval 
forces.  In  respect  to  these  latter,  the  power  of 
Congress  is  in-espective  of  the  actual  condition 
of  the  country,  and  the  same  in  time  of  peace  as 
in  time  of  war  or  public  danger.  (U.  S.  v.  Mac- 
kenzie, 30  Fed.  Cas.  Xo.  18313;  Johnson  v.  Sayre, 
158  U.  S.,  114;  In  re  Bogart,  3  Fed.  Cas.  Xo.  1596; 
see  also  Ex  parte  Mason,  105  U.  S.,  700.) 

(As  to  trials  by  courts-martial,  see  note  to 
Art.  I,  sec.  8,  clause  14.) 

II.  Protection  Against  Double  Jeopardy. 

Double  jeopardy. — By  the  Articles  of  War 
it  is  pro\'ided  that  "Xo  person  [in  the  Army] 
shall  be  tried  a  second  time  for  the  same  of- 
fense.'; (Art.  102,  sec.  1342,  R.  S.)  There  is 
no  similar  statute  with  reference  to  the  Xa\y. 
As  to  whether  this  amendment  of  the  Constitu- 
tion applies  to  the  Army  and  Xa\y,  see  note  to 
Article  I,  section  8,  clause  14,  "Whether  Consti- 
tutional limitations  restrict  Congress  in  legis- 
lating fo"r  Xa^'y." 

By  the  Articles  for  the  Government  of  the 
Navy  it  is  provided  that  ''it  shall  be  his  [con- 
vening authority's]  duty  either  to  remit  any 
part  or  the  whole  of  any  sentence  [of  a  summary 
court-martial]  the  execution  of  which  would,  in 
the  opinion  of  the  surgeon  or  senior  medical  of- 
ficer on  board,  given  in  writing,  produce  serious 
injury  to  the  health  of  the  person  sentenced;  or 
to  submit  the  case  again,  without  delay,  to  the 
same  or  to  another  summary  court-martial, 
which  shall  have  the  power,  upon  the  testimony 
aheady  taken,  to  remit  the  former  punishment 
and  to  assign  some  other  of  the  authorized  pun- 
ishments in  the  place  thereof."  (Art.  33,  sec. 
1624,  R.  S.) 

"The  jeopardy  of  the  law  means  a  real  peril, 
originally  of  life  or  Limb,  and  always  of  substan- 
tial punishment  or  penalty.  The  pro^dsion  of 
the  Constitution  is  (fifth  amendment) :  '  Xor  shall 
any  person  be  subject  for  the  same  offence  to  be 
twice  put  in  jeopardy  of  Life  or  limb.'  Another 
fundamental  idea  is  that  there  must  be  a  trial 
upon  an  indictment  for  an  offense,  or  upon  some 
equiyalent  charge  and  presentment,  as  by  court- 
martial,  submittiag  a  definite  issue  and  involv- 
ing con\-iction  or  acquittal.  The  person  must 
be  in  danger  of  condemnation;  a  mere  inquiry  or 
other  informal  proceeding  (informal  in  a  judi- 
cial sense),  ending  in  a  reprimand,  does  not  sat- 
isfy either  element  of  the  principle  of  second 
jeopardy.  Of  course,  if  there  is  a  trial  in  some 
form  which  might  result  in  con\T.ction  and  pun- 
ishment, the  jeopardy  is  none  the  less  complete 
and  valid  as  a  bar  to  another  trial  because,  in 
fact,  it  issues  in  a  simple  rebuke;  for  absolute  ac- 
quittal, if  the  peril  is  real,  is  equally  a  bar. 
These  principles  indicate  the  logic  underlying 
the  old  common-law  pleas  of  autrefois  con\ict 
and  autrefois  acquit."     (^25  Op.  Atty.Gen.,623.) 

An  investigation  by  a  board  of  inquest  or  by  a 
court  of  inquiry  is  not  a  "  trial"  in  any  sense  of 
an  issue  or  of  an  accused  person.  (25  Op.  Atty. 
Gen.,  623.) 


The  reprimand  of  an  officer  by  the  com- 
mander in  chief  of  a  fleet,  or  by  the  Secretary  of 
the  Xavy,  does  not  bar  subsequent  trial  by 
court-martial  of  the  same  oflicer  for  the  same 
offense.  (25  Op.  Atty.  Gen.,  623;  28  Op.  Atty. 
Gen.,  622.) 

Suspension  of  an  officer  from  duty  by  his  com- 
manding officer,  although  imposed  as  punish- 
ment for  an  offense,  does  not  bar  subsequent 
trial  by  general  com't-martial  for  the  same  of- 
fense. (C.  M.  O.  Xo.  7,  1914;  C.  M.  0.  No.  31, 
1914.) 

The  commanding  officer  of  a  naval  vessel  in 
imposing  punishment  is  not  a  court;  his  inves- 
tigation of  a  charge  is  not  a  trial;  his  finding  is 
not  a  conviction  or  acquittal;  and  the  punish- 
ment which  he  decides  to  impose  is  not  a  sen- 
tence. (File  26251-6297:9,  Dec.  28,  1914; 
C.  M.  O.  7,  1914;  C.  M.  O.  31,  1914.) 

A  plea  before  a  court-martial  of  a  former  arrest 
and  discharge  is  bad;  a  former  trial  only  is  a 
defense  under  the  Articles  of  War.  Also,  under 
this  amendment,  "a  mere  arrest,  even  incases 
punishable  in  life  or  limb,  is  not  considered  as 
constituting  this  jeopardy.  The  principle  is 
derived  to  us  immediately  from  the  common 
law.  It  is  a  maxim  of  this  law,  'that  a  man 
shall  not  be  brought  into  danger  of  his  life  more 
than  once  for  the  same  offense;'  but,  to  give 
the  benefit  of  this  maxim,  it  is  necessary  that  he 
should  have  been  actually  acquitted  or  convicted 
on  a  former  trial,  and  the  record  of  this  fact  must 
be  produced."     (1  Op.  Atty.  Gen.,  294.) 

While  not  a  Legal  bar  to  trial,  it  is  "not  free 
from  legal  censure"  to  bring  an  officer  of  the 
Army  to  trial  for  a  charge  which  has  once  been 
"knowingly  passed  over."  In  such  case  the 
charge  "'  ought  not,  either  in  candor  or  in  justice, 
to  be  in  futui'e  brought  into  question."  (1  Op. 
Atty.  Gen.,  294.) 

"The  weight  of  authority,  as  well  as  deci- 
sions of  this  court,  have  sanctioned  the  rule  that 
a  person  has  been  in  jeopardy  when  he  is  regu- 
larly charged  with  a  crime  before  a  tribunal 
properly  organized  and  competent  to  try  him; 
certainly  so  after  acquittal . "  ( Kepner  t) .  U .  S . , 
195  U.  S.,  100,  citing  Coleman  v.  Tennessee,  97 
U.  S.,  509;  see  also  Ex  parte  Glenn,  111  Fed. 
Rep.,  261.) 

"Undoubtedly  in  those  jurisdictions  where  a 
trial  of  one  accused  of  crime  can  only  be  by  a 
jury  and  a  verdict  of  acquittal  or  conviction 
must  be  by  a  juiy,  no  legal  jeopardy  can  attach 
until  a  jury  has  been  called  and  charged  with 
the  deliverance  of  the  accused.  But  protection 
being  against  a  second  trial  for  the  same  offense, 
it  is  obvious  that  where  one  has  been  tried  be- 
fore a  competent  tribunai  having  jurisdiction 
he  has  been  put  in  jeopardy  as  much  as  he 
could  have  been  in  those  tribunals  where  a  jury 
is  alone  competent  to  convict  or  acquit." 
(Kepner  v.  U.  S.,  195  U.  S.,  100.) 

"  This  principle  is  derived  to  us  immediately 
from  the  common  law. ' '  ( 1  Op.  Atty.  Gen.,  294 ; 
6  Op.  Atty.  Gen.,  204.)  It  embodies  the  com- 
mon-law rule  in  criminal  trials,  as  expressed  in 
the  pleas  of  "autres  foits  acquit,"  or  a  former 
acquittal,  and  "  autres  foits  convict"  or  a  former 
conviction.     (1  Op.  Atty.  Gen.,  240.) 

Court  must  have  jurisdiction. — "We  as- 
sume as  indisputable,  on  principle  and  au- 
thority, that  before  a  person  can  be  said  to  have 


119 


Fifth  Amendment. 


Pt.  1.   THE  CONSTITUTION. 


Double  Jeopaxdy. 


been  put  in  jeopardy  of  life  or  linil)  \hv  court  in 
which  he  wsis  acquitted  or  convicted  must  have 
had  jurisdiction  to  try  him  for  the  offense 
charged."     (Cirafton  v'.  U.'  S..  206  U.  S.,  345.) 

Acquittal  on  defective  indictment  is  bar 
to  second  trial. — "It  is,  then,  the  settled  law 
of  this  court  that  former  jeopardy  includes  one 
who  has  been  acquitted  l)y  a  verdict  duly  ren- 
dered, although  no  judgme'  t  be  entered  on  the 
verdict,  and  it  was  found  upon  a  defective 
indictment.  The  protection  is  not  *  *  * 
against  the  peril  of  second  punishment,  but 
agixinst  being  tried  for  the  same  offense." 
(Kepner  v.  U.  S.,  195  U.  S.,  100.) 

"A  general  verdict  of  acqiuttal  upon  the 
issue  of  not  guilty  to  an  indictment  undertak- 
ing to  charge  murder,  and  not  objected  to  before 
the  verdict  as  insufficient  in  that  respect,  is  a 
bar  to  a  second  indictment  for  the  same  kill- 
ing."    (U.  S.  V.  Ball,  163  U.  S.,  662.) 

"As  to  the  defendant  who  had  been  acquitted 
by  the  verdict  duly  rendered  and  received, 
the  court  could  take  no  other  action  than  to 
order  his  discharge.  The  verdict  of  acquittal 
waa  final  and  could  not  be  re\dewed  on  error 
or  othermse  Without  putting  him  twice  in 
jeopardy  and  thereby  violating  the  Constitu- 
tion, ilowever  it  may  be  in  England,  in  this 
countrA'  a  verdict  of  acquittal,  although  not 
followed  by  any  judgment,  is  a  bar  to  a  subse- 
quent prosecution  for  the  same  offense."  (U.S. 
V.  Ball,  163  U.  S.,  662.) 

"As  the  judgment  [against  an  accused]  stands 
before  he  appeals,  it  is  a  complete  bar  to  any 
further  prosecution  for  the  offense  set  forth  in 
the  indictment  or  of  any  lesser  degree  thereof. 
No  power  can  wrest  from  him  the  right  to  so 
use  that  judgment."  (TronoiJ.U.  S.,  199U.  S., 
521.) 

Returning  record  of  court-martial  for 
revision  of  its  findings  or  sentence  does  not  con- 
stitute trying  the  accused  a  second  time  for  the 
same  offense,  in  violation  of  this  aiticle.  (Ex 
parte  Reed,  100  U.  S.,  13;  Swaim  v.  U.  S.,  165 
U.  S.,  553;  Carter  v.  McClaughry,  183  U.  S.,  365; 
6  Op.  Atty.  Gen.,  204,  205.) 

"Undoubtedly,  errors  are  committed  by 
courts-martial  which  a  civil  tribimal  would 
regard  as  sufficient  ground  for  a  reversal  for 
their  judgments  if  it  were  sitting  as  an  appel- 
late court.  But  there  is  always  this  radical 
difference  between  an  appellate  court  sitting 
for  the  correction  of  errors  and  a  cIa^I  court  into 
which  the  record  of  a  court-martial  is  collateral; 
in  the  former  there  is  not  a  failure  of  justice: 
the  appellate  court  may  reverse  a  judgment  or 

{)rescribe  another  or  award  a  new  trial;  in  the 
atter  the  court  must  either  give  full  effect  to 
the  sentence  or  pronounce  it  wholly  void." 
(Swaim  v.  U.  S.,  28  Ct.  Cls.,  217.) 

When  a  naval  court-martial  is  ordered  by  the 
convening  authority  to  revise  its  proceedings, 
new  evidence  shall  not  be  admissible.  (Naval 
Courts  and  Boards,  1917,  sec.  375.) 

"A  court-martial  on  revisal  does  not  rehear 
the  case;  it  only  reconsiders  the  record  for  the 
purpose  of  correcting  or  modifying  any  conclu- 
sions thereon.  The  true  analogy  of  such  a  re- 
visal, to  take  an  example  from  the  practice  of 
civil  courts,  is  the  case  of  a  jur)-  sent  out  by  the 
court  to  reconsider  the  verdict.     Such  is  the 


whole  current  of  authorities,  as  well  in  the 
United  States  as  in  Great  Britain."  (6  Op. 
Atty.  Gen.,  205.) 

Offenses  different  in  degree  only. — An 
acciuiltal  of  murder  may  be  pleaded  in  bar  of 
an  indictment  lor  manslaughter  based  upon  the 
same  kilUng;  "because  the  latter  charge  was 
included  in  the  former,  and  if  it  had  so  appeared 
on  the  triyl  the  defendajit  might  have  been  con- 
victed of  the  inferior  offense; "  and  an  accjuittal 
of  manslaughter  will  preclude  a  future  prosecu- 
tion for  murder,  "for  if  he  were  innocent  of  the 
modified  crime  he  could  not  be  guilty  of  the 
same  fact,  with  the  addition  of  malice  and  de- 
sign." (Grafton  v.  U.  S.,  206  U.  S.,  333,  350, 
quoting  Chitty  Cr.  L.) 

Offenses  violating  both,  mihtary  and 
civil  law. — "The  subject  of  the  civil  respon- 
sibility of  the  Army  was  very  carefully  con- 
sidered by  Attorney  General  Gushing  in  Stein- 
er's  case  (6  Op.  Atty.  Gen.,  413)  and  the  con- 
clusion reached  that  an  act  criminal  both  by 
military  and  general  law  is  subject  to  be  tried 
either  by  a  military  or  civil  court,  and  that  a 
conviction  or  acquittal  by  the  civil  authorities 
of  the  offense  against  the  general  law  does  not 
discharge  from  responsibility  for  the  military 
offense  involved  in  the  same  facts.  The  con- 
verse of  this  proposition  is  equally  true."  (U. 
S.  V.  Clark,  31  Fed.  Rep.,  710,  712.)  [Note: 
In  the  Steiner  case  the  Attorney  General's  opin- 
ion related  to  the  jurisdiction  of  military  and 
State  courts,  in  a  case  where  the  offense  was 
cognizable  by  both.] 

But  where  both  courts  derive  their  jurisdic- 
tion from  the  United  States,  an  acquittal  by  one 
may  be  pleaded  in  bar  of  trial  by  the  other  for 
an  offense  substantially  identical,  although 
called  by  a  different  name.  Thus  tlie  acquittal 
by  court-martial  of  a  person  belonging  to  the 
Army  upon  a  charge  of  liomicide  was  a  A'alid 
bar  to  a  trial  of  the  same  person  for  the  same 
homicide  by  the  courts  of  the  Philippine  Is- 
lands.    (Grafton  v.  U.  S.,  206  U.  S.,  333.) 

"It  may  be  difficult  at  times  to  determine 
whether  the  offense  for  which  an  officer  or 
soldier  is  being  tried  is  in  every  substantial  re- 
spect the  same  offense  for  wlxich  he  had  been 
previously  tried.  We  will  not  therefore  at- 
tempt to  formulate  any  rule  by  wlxich  every 
conceivable  case  must  be  solved."  (Grafton 
V.  U.  S.,  206  U.  S.,  355.) 

"Undoubtedly  the  general  rule  is  that  the  ju- 
risdiction of  civil  courts  is  concurrent  as  to 
offenses  triable  before  courts-martial. ' '  (Frank- 
lin t;.  U.  S.,  216  U.  S.,  559,  568,  citing  6  Op. 
Atty.  Gen.,  413,  419,  U.  S.  v.  Clark,  31  Fed. 
Rep.,  710.) 

Offenses  violating  the  laws  of  two  gov- 
ernments.— "Every  citizen  of  the  United 
States  is  also  a  citizen  of  a  State  or  Territory. 
He  may  be  said  to  owe  allegiance  to  two  sov- 
ereigns, and  may  be  liable  to  punishment  for 
an  infraction  of  the  laws  of  either.  The  same 
act  may  be  an  offense  or  transgression  of  the 
laws  of  both.  Thus,  an  assault  upon  the  mar- 
shal of  the  United  States,  and  hindering  him 
in  the  execution  of  legal  process,  is  a  high  of- 
fense against  the  United  States,  for  wliich  the 
perpetrator  is  liable  to  punishment;  and  tlie 
same  act  may  be  also  a  gross  breach  of  the  peace 


120 


S  eK-crimination . 


Pt.  1.   THE  CONSTITUTION 


Fifth  Amendment. 


of  tlie  State,  a  riot,  an  assault,  or  a  murder,  and 
subject  the  same  person  to  a  punishment,  under 
the  State  laws,  for  a  misdemeanor  or  felony. 
That  either  or  both  may  (if  they  see  fit)  punish 
such  an  offender  can  not  be  doubted.  Yet  it 
can  not  be  truly  aA'erred  that  the  offender  has 
been  twice  punished  for  the  same  offense;  but 
only  that  by  one  act  he  has  committed  two  of- 
fenses, for  each  of  wliich  he  is  justly  punish- 
able."    (Moore  v.  Illinois,  14  Kow.,  20.) 

"We  do  not  call  in  question  the  correctness 
of  the  general  doctrine  *  *  *  that  the 
same  act  may  in  some  instances  be  an  offense 
against  two  goA'ernments,  and  that  the  trans- 
gressor may  be  held  liable  to  punishment  by 
both  when  the  punishment  is  of  such  a  char- 
acter that  it  can  be  twice  inflicted,  or  by  either 
of  the  two  governments  if  the  punishment  from 
its  nature  can  be  only  once  suffered.  It  may 
well  be  that  the  satisfaction  wliich  the  trans- 
gressor makes  for  the  violated  law  of  the  United 
States  is  no  atonement  for  the  ^dolated  law  of 
Tennessee."  (Coleman  v.  Tennessee,  97  U.  S., 
509.) 

The  trial  and  punishment  of  a  naval  officer 
by  the  court  of  a  foreign  country  for  violating 
the  laws  of  that  country  is  not  a  bar  to  his  trial 
by  naval  court-martial  for  \'iolating  the  Arti- 
cles for  the  Government  of  the  Na\^  (sec.  1624, 
R.  S.)  by  the  same  acts.  (File  26251-8144, 
Nov.  22,  1913.) 

New  trial  upon  motion  of  accused. — If  the 
accused  seeks  a  new  trial,  or  appeals  from  the 
judgment  against  him  and  asks  for  its  reversal, 
he  can  not  thereafter  plead  former  jeopardy  if 
he  is  successful  in  obtaining  a  reversal  of  the 
judgment.  And  if  the  judgment  convicted  him 
of  a  lesser  offense  than  that  charged  and  thereby 
acquitted  him  of  the  greater  offense,  he  can  not 
avail  himself  even  of  that  part  of  the  judgment 
which  contained  an  acquittal,  but  upon  his  new 
trial  may  be  con\'icted  of  the  greater  offense. 
By  seeking  a  new  trial  the  accused  waives  his 
right  to  the  plea  of  former  jeopard  v.  (Trono  v. 
U.  S.,  199  U.  S.,  521;  U.  S.  v.  Ball,  163  U.  S., 
662.) 

Where  an  error  has  been  committed  in  a  trial 
by  court-martial  wliich  is  prejudicial  to  the 
accused,  and  the  accused  himself  seeks  to  have 
the  conviction  disapproved  and  a  new  trial 
granted,  he  thereby  waives  his  right  to  plead 
former  jeopardy  when  brought  to  trial  a  second 
time  for  the  same  offense,  and  the  court-martial 
is  compelled  to  proceed  with  the  trial.  It  was 
not  the  intention  of  the  law  to  deny  the  ac- 
cused the  right  to  a  new  trial  where  prejudicial 
error  has  been  committed  and  he  liimself  seeks 
it.  "Is  there  any  mode  by  which  liis  honor 
can  be  rescued  from  the  imputation  thrown 
upon  it  by  an  improper  sentence  of  a  first  court, 
except  that  of  ordering  a  second?"  (1  Op. 
Atty.  Gen.,  233;  see  also  27  Op.  Atty.  Gen.,  200.) 

This  principle  is  designed  for  the  benefit  of 
the  accused,  not  for  his  prejudice;  and  "there 
is  no  principle  in  law  better  settled  than  that 
a  party  has  the  right  to  waive  a  rule  designed 
merely  for  his  own  benefit."  (1  Op.  Atty. 
Gen. ,'233.) 

"This  provision  is  in  accordance  with  a  well- 
known  doctrine  of  the  law  of  England  to  the 
same  effect.     That  is  to  say,  by  the  common 


law,  as  understood  and  administered  both  in 
England  and  the  United  States,  there  can  not 
be  a  new  trial  at  the  instance  of  the  Government, 
in  a  case  of  treason  or  felony,  though  there  may 
be  in  a  case  of  misdemeanor  where  a  party  la 
alleged  to  be  improperly  convicted,  but  not 
where  he  has  been  acquitted."  (6  Op.  Atty. 
Gen.,  204,  205.) 

"The  granting  of  new  trials  after  conviction 
and  approval  of  sentence  is  not  in  accordance 
with  the  practice  of  military  and  naval  courts. 
*  *  ■*  '  It  is  to  be  noted  that  it  is  only  upon 
and  as  an  incident  to  a  disapproval  of  a  sentence 
that  a  new  trial  can  be  allowed;  after  approval 
there  can  legally  be  no  such  proceeding.'  Any 
newly  discovered  matter  of  defense  deemed  to 
be  of  such  importance  as  in  a  proceeding  before 
a  civil  court  to  be  made  the  basis  of  an  applica- 
tion for  a  new  trial  may,  in  a  naval  case,  be 
presented  for  consideration  in  connection  with 
an  application  for  Executive  clemency. " 
(File  6674-38,  Apr.  30,  1907;  C.  M.  O.  92-1918, 
p.  16.) 

["The  Secretary  of  the  Navy  may  set  aside 
the  proceedings,  or  remit  or  mitigate,  in  whole 
or  in  part,  the  sentence  imposed  by  any  naval 
court-martial  convened  by  his  order  or  by  that 
of  any  officer  of  the  Navv  or  Marine  Corps. " 
(Act  Feb.  16,  1909,  sec.  9",  35  Stat.,  621.)] 

Trial  interrupted  before  completion. — 
"The  law  has  invested  courts  of  justice  with  the 
authority  to  discharge  a  jury  from  giving  any 
verdict  whenever  in  their  opinion,  taking  all 
the  circumstances  into  consideration,  there  is 
a  manifest  necessity  for  the  act,  or  the  ends  of 
public  justice  would  otherwise  be  defeated. 
They  are  to  exercise  a  sound  discretion  on  the 
subject;  and  it  is  impossible  to  define  all  the 
circumstances  which  would  render  it  proper  to 
interfere.  *  *  *  Such  a  discharge  consti- 
tutes no  bar  to  further  proceedings,  and  gives 
no  right  of  exemption  to  the  prisoner  from  being 
again  put  upon  trial."  (U.  S.  v.  Perez,  9 
Wheat.,  579.) 

"This  is  the  settled  law  of  the  Federal  courts. " 
(Keerl  v.  Montana.  213  U.  S.,  135.) 

III.    Compelling    Peeson    to    be    Witness 
Against  Himself. 

Self-crimination. — The  pri\'ilege  granted 
by  this  article  is  not  limited  to  the  defendant  on 
trial  for  crime,  but  includes  all  witnesses  in 
criminal  proceedings.  (Counselman  v.  Hitch- 
cock, 142  U.  S.,  562;  U.  S.  v.  Kimball.  117  Fed. 
Rep.,  160.) 

It  is  provided  by  statute  with  reference  to 
naval  general  courts-martial  and  courts  of  in- 
quiry "that  no  witness  shall  be  compelled  to 
incriminate  himself  or  to  answer  any  question 
which  may  tend  to  incriminate  or  degrade 
him."  (Act  Feb.  16,  1909,  sec.  12,  35  Stat., 
622.) 

In  trials  by  court-martial  and  proceedings 
before  courts  of  inquiry  the  accused  or  person 
charged  "shall,  at  his  own  request  but  not 
otherwise,  be  a  competent  witness."  (Act 
Mar.  16,  1878,  20  Stat.,  30;  Naval  Courts  and 
Boards,  1917,  sees.  138,  512.) 

Waiver  of  privilege. — Wlien  an  accused  per- 
son voluntarily  testifies  in  his  own  behalf,  he 


121 


Rfth  Amendment. 


Pt.  1.   THE  CONSTITUTION. 


Self-crimination. 


thereby  waives  his  constitutional  privilege  as 
to  the  subject-matter  of  such  testimony,  and 
may  be  cross-examined  thereon  with  the  same 
latitude  which  ia  allowed  in  the  cross-examina- 
tion of  ordinary  witnesses.  (Fitzpatrick  v. 
U.  S.,  178U.  S.,304.) 

It  a  witness  waives  his  privilege  l)y  answering 
questions  of  a  criminating  character,  it  is  then 
too  late  for  him  to  stop  and  he  may  be  required 
to  make  a  full  disclosure  of  the  facts  relating 
thereto  regarding  which  he  is  interrogated. 
(Brown  v.  Walker,  1(51  U.  S.,  591.) 

It  is  decided  by  an  abundance  of  authority 
that  the  privilege  of  refusing  to  testify  is  a 
purely  personal  one;  that  the  -wdtness  may 
waive  it;  that  no  objection  from  the  parties,  on 
the  score  of  crimination  of  the  witness,  can  be 
entertained;  and  that  tlie  counsel  for  the  wit- 
ness can  only  be  heard  in  defense  of  his  right. 
It  would  seem  to  follow  that  where  this  right  has 
been  \'iolated,  it  is  for  the  witness  to  complain, 
and  not  the  defendant.  If  ordered  to  testify  in 
a  case  where  he  is  privileged,  it  is  a  matter  ex- 
clusively between  the  court  and  the  mtness. 
The  latter  may  stand  out  and  be  committed  for 
contempt,  or  he  may  submit;  but  the  party  has 
no  right  to  interfere  or  complain  of  the  error. 
Accordingly,  if  a  court-martial  committed  an 
error  in  requiring  a  witness  to  answer,  the  error 
is  not  such  as  to  require  a  disapproval  of  the 
proceedings.     (17  Op.  Atty.  Gen.,  616.) 

Duty  of  court. — A  witness  can  not  avoid 
answering  any  question  by  the  mere  statement 
that  the  answer  would  tend  to  incriminate  him, 
without  regard  to  whether  the  statement  is 
reasonable  or  not.  It  is  for  the  judge  before 
whom  the  question  arises  to  decide  whether  an 
answer  to  the  question  may  reasonably  have  a 
tendency  to  criminate  the  witness,  or  to  furnish 
proof  of  an  element  or  link  in  the  chain  of  evi- 
dence necessary  to  convict  him  of  a  crime. 
(Ex  parte  Irvine,  74  Fed.  Kep.,  954.) 

It  is  not  sufficient  to  excuse  the  witness  from 
testifying  that  he  may,  in  his  own  mind,  think 
his  answer  to  the  question  might,  by  possibility, 
lead  to  a  criminal  charge  against  him,  or  tend  to 
convict  him  of  it  if  made.  The  court  must  be 
able  to  perceive  that  there  is  reasonable  ground 
to  apprehend  danger  to  the  witness  from  his 
being  compelled  to  answer.  (U.  S.  v.  McCarthy, 
18  Fed.  Rep.,  87.) 

However,  "if  the  question  be  of  such  a  de- 
scription that  an  answer  to  it  may  or  may  not 
criminate  the  witness,  according  to  the  purport 
of  that  answer,  it  must  rest  with  himself,  who 
alone  can  tell  what  it  would  be,  to  answer  the 
question  or  not.  If  in  such  a  case,  he  say  upon 
his  oath  that  his  answer  would  criminate  him- 
self, the  court  can  demand  no  other  testimony 
of  the  fact."  (U.  S.  v.  Burr,  25  Fed.  Cas.  No. 
14692e,  per  Chief  Justice  Marshall;  see  also 
Counselman  v.  Hitchcock,  142  U.  S.,  547;  In  re 
Shera,  114  Fed.  Rep.,  207;  In  re  Kanter,  117 
Fed.  Rep.,  356.)  But  the  court  may  compel  an 
answer,  if  of  opinion  that  no  direct  answer  to 
the  question  could  furnish  evidence  against  the 
witness.  (U.  S.  v.  :Miller,  26  Fed.  Cas.  No. 
15772;  see  also,  In  re  Levin,  1.31  Fed.  Rep.,  388.) 

When  required,  to  answer. — Where  it 
clearly  appears  to  the  court  that  a  witness  con- 
tumaciously or  mistakenly  refuses  to  furnish 
evidence  which  can  not  possibly  injure  him,  he 


will  not  be  permitted  to  shield  himself  behind 
the  privilege  (In  re  Kanter,  117  Fed.  Rep.,  356); 
but  the  motive  of  the  witness  in  pleading  the 
privilege  will  not  be  inquired  into  "where, 
from  the  evidence  and  the  nature  of  the  question 
the  court  can  definitely  determine  tliat  the 
question,  if  answered  in  a  particular  way,  will 
form  a  link  in  the  chain  of  evidence  to  establish 
the  commission  of  a  crime  by  the  witness. 
*  *  *  It  is  only  where  the  criminating 
effect  of  the  question  is  doubtful  that  the 
motive  of  the  witness  may  be  (considered,  for 
in  such  a  case  his  bad  faith  would  have  a  tend- 
ency to  show  that  his  answer  would  not  sub- 
ject him  to  the  danger  of  a  criminal  prosecution 
or  help  to  prove  him  guilty  of  crime."  (Ex 
parte  Irvine,  74  Fed.  Rep.,  964.) 

"If  the  testimony  relate  to  criminal  acts  long 
since  past,  and  against  the  prosecution  of 
which  the  statute  of  limitations  has  run,  or  for 
which  he  has  already  received  a  pardon  or  is 
guaranteed  an  immunity,  the  amendment  does 
not  apply.  *  *  *  The  criminality  pro- 
vided against  is  a  present,  not  a  past  crimi- 
nality, which  lingers  only  as  a  memory  and 
involves  no  present  danger  of  prosecution." 
(Hale  V.  Henkel,  201  U.  S.,  43.) 

Witness  may  be  required  to  answer  by  a  Fed- 
eral court,  if  there  is  a  Federal  statute  granting 
him  immunity,  although  his  answers  may  ex- 
pose him  to  prosecution  in  the  State  courts  to 
which  the  Federal  statute  has  no  appUcation. 
(Brown  i;.  Walker,  161  U.  S.,  591.) 

By  section  860,  Revised  Statutes,  a  general 
provision  was  enacted  ^vith  reference  to  wit- 
nesses giving  criminating  testimony  in  judicial 
proceedings,  under  which  it  was  claimed  that 
witnesses  might  be  compelled  to  answer  crimi- 
nating questions,  as  they  were  protected  from 
prosecution  therefor  by  said  section.  However, 
section  860  proved  ineffective  for  this  purpose, 
as  it  was  held  by  the  courts  not  to  be  as  broad  aa 
the  priAdlege  conferred  by  the  Constitution. 
(See  Counselman  v.  Hitchcock,  142  U.  S.,547.) 
It  was  repealed  by  act  of  May  7,  1910,  (36  Stat., 
352).  By  act  of  February  11, 1893  (27  Stat.,  443), 
Congress  passed  an  immunity  statute  applicable 
to  testimony  given  before  the  Interstate  Com- 
merce Commission,  which  was  broader  in  its 
terms  than  section  860,  Revised  Statutes,  and 
was  upheld  by  the  Supreme  Court  as  requiring 
witnesses  to  answer.  (Brown  v.  Walker,  161  U. 
S.,  591;  see  also  Hale  v.  Henkel,  201  U.  S.,  43, 
upholding  an  immunity  statute  enacted  Feb.  25, 
1903, 32  Stat.,  904,  with  reference  to  prosecutions 
under  the  antitrust  act.) 

A  pardon  must  be  accepted  before  a  wit- 
ness may  be  required  to  answer  questions  con- 
necting him  with  matters  for  which  the  pardon 
grants  him  immunity.  The  witness  has  the 
right,  if  he  desires  to  do  so,  to  refuse  the  pardon 
and  decline  to  testify.  (Bur dick  v.V.  S.,236 
U.  S.,  79.)  [The  President  "can  pardon  or  re- 
prieve only  when  an  offense  against  the  law 
has  been  established  by  proof  or  the  admissions 
of  the  party,  and  a  penalty  thereby  incurred." 
(2  Op.  Atty.  Gen.,  485;  see  also  Burdick  v.  U.  S., 
236  U.  S.,  79,  in  which  this  question  was  dis- 
cussed but  not  decided.)] 

"It  is  to  be  borne  in  mind  that  the  power  of 
the  President  under  the  Constitution  to  grant 
pardons  and  the  right  of  a  witness  must  be  kept 


122 


Due  Process  of  Law. 


Pt.  1.   THE  CONSTITUTION. 


Fifth.  Amendment. 


in  accommodation.  Both  have  sanction  in  the 
Constitution,  and  it  should  therefore  be  the 
anxiety  of  the  law  to  preserve  both — to  leave  to 
each  its  proper  place.  In  this,  as  in  other  con- 
flicts between  personal  rights  and  the  powers  of 
government,  technical — even  nice — distinc- 
tions are  proper  to  be  regarded."  (Burdick  v. 
U.  S.,236  U.  S.,  79.) 

"The  seizure  or  compulsory  production 
of  a  man's  private  papers  to  be  used  in  evi- 
dence against  him  is  equivalent  to  compelling 
him  to  be  a  witness  against  himself,  and,  in  a 
prosecution  for  a  crime,  penalty,  or  forfeiture  is 
equally  ^\•ithin  the  prohibition  of  the  fifth 
amendment."     (Boyd  v.  U.  S.,  116  U.  S.,  616.) 

"We  have  been  unable  to  perceive  that  the 
seizure  of  a  man's  private  books  and  papers  to 
be  used  in  e\'idence  against  him  is  substantially 
different  from  compelling  him  to  be  a  witness 
against  himself."  (Boyd  v.  U.  S.,  116  U.  S., 
633;  compare  Adams  v.  New  York,  192  U.  S., 
585.) 

' '  The  fact  that  papers  which  are  pertinent  to 
the  issue  may  have  been  illegally  taken  from 
the  possession  of  the  party  against  whom  they 
are  offered  is  not  a  valid  objection  to  their  ad- 
missibility. The  court  considers  the  compe- 
tency of  the  evidence,  and  not  the  method  by 
which  it  was  obtained  *  *  *  and  by  the 
introduction  of  such  evidence  defendant  is  not 
compelled  to  incriminate  himself."  (Adams  v. 
New  York,  192  U.  S.,  585,  distinguishing  Boyd 
V.  U.  S.,  on  the  ground  that  in  that  case  it  was 
attempted  to  compel  defendant  to  produce  his 
books  and  papers,  on  the  pain  of  having  state- 
ments of  Government's  counsel  as  to  the  con- 
tents thereof  taken  as  true  and  used  as  testi- 
mony for  the  Government,  and  that  the  law 
there  held  to  be  unconstitutional  "\irtually 
compelled  the  defendant  to  furnish  testimony 
against  himself.") 

"While  an  incidental  seizure  of  incriminating 
papers,  made  in  the  execution  of  a  legal  war- 
rant, and  their  use  as  evidence  may  be  justified, 
and  a  collateral  issue  will  not  be  raised  to  ascer- 
tain the  source  of  competent  evidence  *  *  * 
that  rule  does  not  justify  the  retention  of  letters 
seized  in  violation  of  the  protection  given  by 
the  fourth  amendment  where  an  application  in 
the  cause  for  their  return  has  been  made  by  the 
accused  before  trial."  (Weeks  v.  U.  S.,  232 
U.  S.,  383.) 

"Where  letters  and  papers  of  the  accused 
were  taken  from  his  premises  by  an  official  of 
the  United  States,  acting  under  color  of  office 
but  without  any  search  warrant  and  in  viola- 
tion of  the  constitutional  rights  of  accused  un- 
der the  fourth  amendment,  and  a  seasonable 
application  for  return  of  the  letters  and  papers 
has  been  refused  and  they  are  used  in  evidence 
over  his  objection,  prejudicial  error  is  com- 
mitted, and  the  judgment  should  be  reversed." 
(Weeks  v.  U.  S.,  232  U.  S.,  383.) 

"The  tendency  of  those  executing  Federal 
criminal  laws  to  obtain  convictions  by  means  of 
unlawful  seizures  and  enforced  confessions  in 
violation  of  Federal  rights  is  not  to  be  sanc- 
tioned by  the  courts  which  ar?  charged  with 
the  support  of  constitutional  rights."  (Weeks 
I'.  IT.  S.,  232  U.  S.,_383.) 

See  note  to  section  1624,  Revised  Statutes, 
article  42. 


Compelling:  witness  to  exhibit  himself. — 

"The  prohibit icm  of  compelling  a  man  in  a 
criminal  court  to  be  witness  against  himself  is  a 
prohibition  of  the  use  of  physical  or  moral  com- 
pulsion to  extort  communications  from  him, 
not  an  exclusion  of  his  body  as  evidence  when 
it  may  be  material.  The  objection  in  principle 
would  forbid  a  jury  to  look  at  a  prisoner  and 
compare  his  features  with  a  photograph  in 
proof.  Moreover,  we  need  not  consider  how  far 
a  comt  would  go  in  compelling  a  man  to  exhibit 
himself.  For  when  he  is  exhibited,  whether 
voluntarily  or  by  order,  and  even  if  the  order 
goes  too  far,  the  evidence,  if  material,  is  compe- 
tent." (Holt  V.  U.  S.,  218  U.  S.,  253,  citing 
Adams  v.  New  York,  192  U.  S.,  585.) 

"A  question  arose  as  to  whether  a  blouse  be- 
longed to  the  prisoner.  A  witness  testified  that 
the  prisoner  put  it  on  and  it  fitted  him.  It  is 
objected  that  he  did  this  under  the  same  duress 
that  made  his  statements  inadmissible,  and  that 
it  should  be  excluded  for  the  same  reasons." 
Held,  that  this  objection  "is  based  upon  an 
extravagant  extension  of  the  fifth  amendment," 
and  that  the  testimony  is  admissible.  (Holt  v. 
U.  S.,  218  U.  S..  245.) 

"A  confession  freely  and  voluntarily 
made  is  evidence  of  the  most  satisfactory  char- 
acter. But  the  presumption  upon  which 
weight  is  given  to  such  evidence,  namjly,  that 
an  innocent  man  will  not  imperil  his  safety  or 
prejudice  his  interests  by  an  untrue  statement, 
ceases  when  the  confession  appeal's  to  have  been 
made,  either  in  consequence  of  inducements  of 
a  temporal  nature  held  out  by  one  in  authority 
touching  the  charge  preferred,  or  because  of  a 
threat  or  promise  made  by  or  in  presence  of 
such  person  in  reference  to  such  charge." 
(Hopt  V.  Utah,  110  U.  S.,  574.) 

If  the  testimony  may  tend  merely  to  de- 
grade and  not  to  incriminate  the  witness,  he 
may  be  required  to  answer,  unless  the  question 
is  one  which  is  not  material  to  the  issue  and  is 
intended  to  impair  the  credibility  of  the  wit- 
ness, in  which  case  he  may  refuse  to  answer. 
(Brown  v.  Walker,  161  U.  S.,  591,  and  cases 
there  cited;  see  also  C.  M.  0.,  No.  29,  1914.) 

IV.  Protection  op  Life,  Liberty,  and 
Property. 

Due  process  of  law. — The  proposition  has 
been  uniformly  accepted  by  American  courts 
that  the  words  "due  process  of  law"  are  equiv- 
alent in  meaning  to  the  words  "law  of  the 
land"  contained  in  Magna  Charta.  (Twining 
V.  New  Jersey,  211  U.  S.,  78.) 

"By  the  law  of  the  land  is  most  clearly  in- 
tended the  general  law  which  hears  before  it 
condemns;  which  proceeds  upon  inquiry  and 
renders  judgment  only  after  trial.  The  mean- 
ing is  that  every  citizen  shall  hold  his  life, 
liberty,  and  property,  and  immunities  under 
the  protection  of  the  general  rules  which  govern 
society.  Everything  which  may  pass  under 
the  form  of  an  enactment  is  not  law  of  the 
land."  (Dartmouth  College  v.  Woodward,  4 
^\lieat.,  518,  argument  of  Webster;  quoted  in 
Hurtado  v.  California,  110  U.  S.,  516.) 

The  Supreme  Coint  has  always  declined  to 
give  a  comprehensive  definition  of  this  phrase, 
"and  has  preferred  that  its  full  meaning  should 
be  gradually  ascertained  by  the  process  of  in. 


54641°— 22- 


-9 


123 


Fifth  Amendment. 


Ft.  1.   THE  CONSTITUTION. 


Due  Process  of  Law. 


elusion  and  exilusion  in  the  course  of  the  de- 
cisions of  cases  as  thev  arise."  (Twining  r. 
New  Jersey,  211  U.  S.,  78.) 

"To  those  in  the  military  or  naval  service  of 
the  United  States  the  military  law  is  due 
process.  The  decision,  therefore,  of  a  military 
tribunal  acting  within  the  scope  of  its  lawful 
powers  can  not  be  reviewed  or  set  aside  by  the 
courts."  (Reaves  v.  Ainsw^orth,  219  U.  S., 
296,  304.; 

"It  is  sufficient  to  say  that  by  due  process  of 
law  is  meant  one  which,  following  the  forms  of 
law,  is  appropriate  to  the  case  and  just  to  the 
parties  to  oe  affected.  It  must  be  pursued  in 
tlie  ordinary  mode  prescribed  by  law;  it  must 
be  adapted  "to  the  end  to  be  attained,  and  when- 
ever it  is  necessary  for  the  protection  of  the 
Earties  it  must  give  them  an  opportunity  to  be 
eard  rosjjecting  the  justness  of  the  judgment 
sought.  The  clause,  therefore,  means  that 
there  can  be  no  proceeding  against  life,  liberty, 
or  property  which  may  result  in  deprivation  of 
either  without  the  observance  of  those  general 
rules  established  in  our  system  of  jurisprudence 
for  the  security  of  private  rights."  (Hagar  v. 
Reclamation  District,  111  U.  S.,  701.) 

"Any  legal  proceeding  enforced  by  public 
authority,  whether  sanctioned  by  age  and  cus- 
tom or  newly  devised  in  the  discretion  of  the 
legislative  power,  in  furtherance  of  the  general 
public  good,  which  regards  and  preserves  these 
principles  of  liberty  and  justice,  must  be  held 
to  be  due  process  of  law."  (Hurtado  v.  Cali- 
fornia, 110  U.  S.,  516.)  And  this  expression  is 
not,  therefore,  necessarily  limited  to  "settled 
usages  and  modes  of  proceedings  existing  in  the 
common  and  statute  law  of  England  before  the 
emigration  of  our  ancestors,  and  shown  not  to 
have  been  unsuited  to  their  civil  and  political 
condition  by  having  been  acted  on  by  them 
after  the  settlement  of  this  country."  (Twin- 
ing V.  New  Jersey,  211  U.  S.,  78.  See  also 
Holden  v.  Hardy,  169  U.  S.,  366.) 

"If  the  laws  enacted  by  a  State  be  within 
the  legitimate  sphere  of  legislative  power,  and 
their  enforcement  be  attended  with  the  observ- 
ance of  those  general  rules  which  our  system  of 
jurisprudence  prescribes  for  the  security  of 
private  rights,  the  harshness,  injustice,  and 
oppressive  character  of  such  law^s  will  not  in- 
validate them  as  affecting  life,  liberty,  or 
property  without  due  process  of  law."  (Mis- 
souri Pac.  Ry.  Co.  v.  Humes,  115  U.  S.,  512.) 

"Due  process  of  law  *  *  *  is  secured  if 
the  laws  operate  on  all  alike  and  do  not  subject 
the  individual  to  an  arbitrary  exercise  of  the 
powers  of  the  Government."  (Giozza  i^.  Tier- 
nan,  HSU.  S.,657.) 

"Liberty"  means  "not  only  the  right  of 
the  citizen  to  be  free  from  the  mere  physical 
restraint  of  his  person,  as  by  incarceration,  but 
the  term  is  deemed  to  embrace  the  right  of  the 
citizen  to  be  free  in  the  engagement  of  all  his 
faculties;  to  be  free  to  use  them  in  all  lawful 
ways;  to  live  and  work  where  he  will;  to  earn 
his  livelihood  by  any  lawful  calling;  to  pursue 
any  livelihood  or  avocation;  and  for  that  pur- 
pose to  enter  into  all  contracts  which  may  be 
proper,  necessary,  and  essential  to  his  carrying 
out  to  a  successful  conclusion  the  purposes 
above  mentioned."  (Allgeyer  v.  Louisiana, 
165  U.  S.,  578.) 


An  officer  of  the  Navy  placed  under  arrest 
for  trial  by  court-martial  and  ordered  to  con- 
fine himself  to  the  Uniils  of  the  city  of  Wash- 
ington, is  not  deprived  of  his  liberty  so  as  to 
entitle  him  to  a  writ  of  habeas  corpus  on  the 
allegation  that  he  was  unlawfully  restrained  by 
the  Secretary  of  the  Navy.  "In  the  case  of  a 
man  in  the  military  or  naval  service,  where  he 
is,  whether  as  an  ofiicer  or  a  private,  always 
more  or  less  su})ject  in  his  mo^'ements,  l)y  the 
very  necessity  of  military'  rule  and  subordina- 
tion, to  the  orders  of  his  superior  officer,  it 
should  be  made  clear  that  some  unusual  re- 
straint upon  his  lil)erty  of  personal  movement 
exists  to  justify  the  issue  of  the  writ;  otherwise, 
eveiy  order  of  the  superior  officer  directing  the 
movements  of  his  subordinate,  which  neces- 
sarily to  some  extent  curtails  his  freedom  of 
will,  may  be  held  to  be  a  restraint  of  his  liberty, 
and  the  party  so  ordered  may  seek  relief  from 
obedience  by  means  of  a  writ  of  habeas  corpus." 
(Wales  V.  Whitney,  114  U.  S.,  564.) 

Office  is  not  "property." — "An  ofiicer  in 
the  Army  or  Navy  of  t  he  United  States  does  not 
hold  his  office  by  contract,  but  at  the  will  of  the 
sovereign  power."  (Crenshaw  v.  U.  S.,  134 
U.  S.,  99.)  "Whatever  the  form  of  the  statute, 
the  officer  under  it  does  not  hold  by  contract. 
He  enjoys  a  privilege  revocable  by  the  sover- 
eignty at  will;  and  one  legislature  can  not 
deprive  its  successor  of  the  power  of  revoca- 
tion."    (Same  case.) 

"An  office  created  by  statute  is  not  the 
property  of  the  incumbent.  Being  given  by 
statute  it  can  be  taken  away  by  statute,  and 
therefore  the  rules  of  law  applicable  to  pro- 
ceedings to  deprive  a  person  of  property  law- 
fully acquired  are  not,  in  general,  applicable 
to  proceedings  of  examining  boards  in  cases  of 
promotion.  The  rules  of  procedure,  even  in 
ci\il  cases,  where  rights  of  property  are  in- 
volved, are  not  applicable  here  except  in  so 
far  as  they  are  made  so  by  statute  and  regula- 
tions adopted  by  the  Navy  Department  in  ac- 
cordance with  statute  laws.  *  *  *  Neither 
can  such  examinations  be  assimilated  in  any 
manner  to  criminal  proceedings,  which  they 
in  no  sense  resemble.  *  *  *  The  offices 
held  by  naval  officers  Congress  creates,  abol- 
ishes, and  limits  at  will.  Congress  has  com- 
plete power,  if  it  wishes,  not  only  to  stop  pro- 
motions but  to  abolish  these  offices.  It  might 
declare  that  no  one  should  hereafter  be  pro- 
moted who  was  not  over  6  feet  high;  or  it 
might  direct  that  all  officers  not  of  the  required 
height  should  be  discharged;  and  it  can  cer- 
tainly pass  an  act  like  that  of  ]  882  directing  the 
discharge  of  officers  whose  unfitness  arises  fiom 
their  own  misconduct."  (File  26260-1392, 
June  29,  ]91],  quoting  Secretary  of  Navy's 
"General  Instructions"  of  Dec.  14,  1894,  in 
case  of  Frederick  W.  Crocker.) 

However,  "if  the  constitutional  provision 
relating  to  due  process  of  law  applied  "  to  the 
case  of  an  ofiicer  discharged  from  the  Na^y  for 
failing  morally  to  qualify  for  promotion,  "it 
would  be  more  than  satisfied  by  the  procedure 
established;"  under  which  "his  case  is  heard 
by  a  board  constituted  in  accordance  with  ex- 
press provisions  of  law  and  sworn  to  'honestly 
and  impartially  examine  and  report  upon  the 
case  of ,  now  before  the 


124: 


Due  Process  of  Law. 


Pt.  1.   TEE  CONSTITUTION. 


Fifth  Amendment. 


board  and  about  to  be  examined;'  all  matters 
considered  by  the  board,  -nhether  affecting  the 
officer's  physical,  mental,  moral,  or  professional 
qualifications  for  promotion,  ai^e  entered  of 
record :  the  candidate,  if  his  record  shows  him 
prima  facie  unfit  for  promotion,  is  so  informed 
by  the  lioard  and  given  an  opportunity  to  be 
heard;  the  finding  and  recommendation  of  the 
board  are  expressly  stated  in  all  cases  to  be 
based  upon  matters  recorded,  and  are  so  re- 
ferred to  the  department  and  the  President  for 
re\dew.''  (File  26260-1392,  June  29,  1911,  p. 
31,  citing  In  re  Sing  Lee,  54  Fed.  Rep.,  336; 
Turner  rT Williams,  194  U.  S.,  289,  290;  :Murray 
V.  Hoboken  Land  Company,  18  How.,  274.) 

Private  property  taken  for  public  use. — 
See  note  to  Article  I,  section  8,  clause  11,  '"Au- 
thority of  military  commander  to  seize  private 
property";  see  also  note  to  Article  I,  sections, 
clause  8,  "Right  of  Government  to  use  a  pat- 
ent"; and  see  act  of  August  1,  1888  (25_Stat., 
357),  as  to  acquisition  of  lands  for  public  uses 
by  condemnation. 

"Aside  from  constitutional  provisions, 
it  is  a  plain  dictate  of  common  justice  that  no 
person  shall  be  deprived  of  Life,  liberty,  or  i^rop- 
erty  -without  due  process  of  law."  (22  Op. 
Atty.  Gen.,  137.  See  note  to  Art.  I,  sec.  8, 
clause  14,  ""\Miether  constitutional  limitations 
restrict  Congress  in  legislating  for  Ka\"5^") 

Court  illegally  constituted. — "Trial  by  a 
court  [martial J  not  regularly  constituted  is  not 
a  trial  which  can  be  said  to  be  'due  process 
of  law.'  I  am  of  opinion,  therefore,  that  the 
so-called  court-martial,  so  far  as  the  trial  of 
Brown  is  concerned,  must  remain  illegal,  and 
its  judgment  ought  not  to  be  enforced."  (22 
Op.  Atty.  Gen.,  137.  In  this  case,  one  member 
of  a  naval  court-martial  was  detached  and 
another  substituted  bj'  the  Chief  of  the  Bureau 
of  Navigation  without  authority  from  the  Sec- 
retary of  the  Xaw,  who  convened  the  court.) 

Court  must  have  jurisdiction.— To  con- 
stitute due  process  of  law,  the  court  which 
renders  judgment  in  a  case  must  have  juris- 
diction, both  of  the  parties  and  of  the  subject- 
matter  of  the  proceedings.  (Pennoyer  v.  Neff, 
95  LT.  S.,  714.)  Consent  of  the  accused  can  not 
confer  jurisdiction  upon  a  court  not  possessing 
it  by  \irtue  of  statutory  authority.  (22  Op. 
Atty.  Gen.,  137.) 

Review  not  required. — "A  review  by  an 
appellate  court  of  the  final  judgment  in  a 
criminal  case,  however  grave  the  offense  of 
which  the  accused  is  convicted,  was  not  at 
common  law  and  is  not  now  a  necessarj^  element 
of  due  process  of  law."  (McKane  r.  Durston, 
153  U.  S.,  684;  see  also  Reetz  v.  Michigan,  188 
U.  S.,  505;  Andrews  v.  Swartz,  156  U.  S.,  272; 
Fallbrook  v.  Bradley,  164  U.  S.,  112;  Rogers  v. 
Peck,  199  U.  S.,  425;  Frank  v.  Mangum,  237 
U.  S.,  309.) 

Use  of  depositions. — Due  process  of  law 
does  not  require  that  the  accused  in  a  criminal 
case  be  confronted  with  the  witnesses  against 
him.  The  provision  of  the  sixth  amendment 
on  this  subject  does  not  apply  to  State  coiirts, 
and  is  not  extended  to  them  by  the  due  process 
provision  of  the  fourteenth  amendment.  Ac- 
cordingly, held  that  the  deposition  of  a  witness 
may  be  admitted  against  an  accused  in  a  State 


court  without  violating  the  Federal  Constitu- 
tion: "We  are  of  opinion  that  no  Federal  right 
of  the  plaintifls  in  error  was  violated  by  admit- 
ting this  deposition  in  evidence.  Its  admission 
was  but  a  sHght  extension  of  the  rule  of  the  com- 
mon law,  even  as  contended  for  by  counsel. 
The  extension  is  not  of  such  a  fundamental 
character  as  to  deprive  the  accused  of  due 
process  of  law  *  *  *.  The  accused  has,  as 
held  by  the  State  court  in  such  case,  been  once 
confronted  with  the  witness,  and  has  had  oppor- 
timity  to  cross-examine  him,  and  it  seems  rea- 
sonable that  when  the  State  can  not  proctire  the 
attendance  of  the  witness  at  the  trial,  and  he  is 
a  nonresident  and  is  permanently  beyond  the 
jurisdiction  of  the  State,  that  his  deposition 
might  be  read  equally  as  well  as  when  his  at- 
tendance could  not  be  enforced  because  of 
death  or  of  illness,  or  his  evidence  given  by 
reason  of  insanity."  (West  v.  Louisiana,  194 
U.  S.,258.'^ 

Self-incrimination. — Due  process  of  law 
does  not  include  exemption_  by  witnesses  from 
compulsory  self-incrimination.  (Twining  r. 
New  Jersey,  211  U.  S. ,  78.  That  right  is  guaran- 
teed witnesses  in  the  Federal  comis  by  another 
clause  of  this  amendment.  See  above,  "Self- 
crimination.") 

Excessive  bail,  excessive  fines,  and  cruel 
and  unusual  punishments  are  prohibited  by 
the  eighth  amendment,  and  are  not  included  in 
the  due-process  clause.  (In  re  Kemmler,  136 
U.  S.,436.) 

Errors  of  procedure. — "The  due  process  of 
law  guaranteed  by  the  fourteenth  amendment 
has  regard  to  substance  of  right,  and  not  to 
matters  of  form  or  procedure.  *  *  *  This 
familiar  phrase  does  not  mean  that  the  opera- 
tions of  the  State  government  shall  be  con- 
ducted without  error  or  fault  in  any  particular 
case,  nor  that  the  Federal  courts  may  substitute 
their  jtidgment  for  that  of  the  State  courts,  or 
exercise  any  general  review  over  their  pro- 
ceedings, but  only  that  the  fundamental 
rights  of  the  prisoner  shall  not  be  taken  from 
birn  arbitrarily  or  v\ithout  the  right  to  be  heard 
according  to  the  usual  course  of  law  in  such 
cases."     (Frank  r.  Mangum,  237  U.  S.,  309.) 

"If  a  trial  is  in  fact  dominated  by  a  mob, 
so  that  the  jury  is  intimidated  and  the  trial 
judge  yields,  and  so  that  there  is  an  actual 
interference  with  the  course  of  justice,  there  is, 
in  that  court,  a  departure  from  due  process 
of  law  in  the  proper  sense  of  that  term.  And 
if  the  State,  supplying  no  corrective  process, 
carries  into  execution  a  judgment  of  death  or 
imprisonment  based  upon  a  verdict  thus  pro- 
duced by  mob  domination,  the  State  deprives 
the  accused  of  his  life  or  liberty  -without  due 
process  of  law.  But  the  State  may  supply  such 
corrective  process  as  to  it  seems  proper.  -^^  -*  -**• 
Repeated  instances  are  reported  of  verdicts  and 
judgments  set  aside  and  new  trials  granted  for 
disorder  or  mob  violence  interfering  -with  the 
prisoner's  right  to  a  fair  trial.  ■*  •*  *  The 
Georgia  courts,  in  the  present  case,  proceeded 
upon  the  theory  that  Frank  would  have  been 
entitled  to  this  relief  had  his  charges  been  true, 
and  they  refused  a  new  trial  only  _  because 
they  found  his  charges  untrue  save  in  a  few 
minor  particulars  not  amotmting  to  more  than 


125 


Fifth  Aiuendment. 


/v.  /.    THE  CONSTITUTION 


Presence  of  Accused. 


irregularities  and  not  prejudicial  to  the  ac- 
cused. There  was  here  no  denial  of  due 
Erocess  of  law."  (l">ank  v.  Mangum,  237 
r.  S.,309.) 

Prisoner  unable  to  hear  testimony. — 
"\\'lK'ie  t  lio  j)rLs()nor  wad  couvictod  of  the  crime 
of  munlcr  and  sentenced  to  imprisonment  for 
life,  althou.i!;li  he  did  not  hear  a  word  of  the 
evidence  given  upon  the  trial  because  of  his 
alnu)st  total  deafness,  hLs  inability  to  hear 
being  such  that  it  required  a  person  to  speak 
through  an  ear  trumpet  close  to  his  ear  in  order 
that  such  person  should  be  heard  by  him,  and 
the  trial  court  having  failed  to  see  to  it  that  the 
testimony  in  the  caae  was  repeated  to  him 
through  his  ear  trumpet,  this  court  said  that 
this  was  'at  most  an  error,  which  did  not  take 
away  from  the  court  its  jurisdiction  over  the 
subject  matter  and  over  the  person  accused.'  " 
(Frank  v.  Mangum,  237  U.  S.,  309,  explaining 
Felts  V.  Murphy,  201  U.  S.,  123,  129.) 

Failure  to  arraign. — "In  Garland  v.  Wash- 
ington, 232  U.  S.,  042,  045,  it  was  held  that  the 
want  of  a  formal  arraignment,  treated  by  the 
State  as  depriving  the  accused  of  no  sub- 
stantial right,  and  as  having  been  waived,  and 
thereby  lost,  did  not  amount  to  depriving  de- 
fendant of  his  liberty  vdthout  due  process  of 
law."     (Frank  v.  Mangum,  237  U.  S.,  309.) 

V.  Presence  of  Accused  at  Trial. 

Proceedings  in  absence  of  accused. — It 
was  provided  by  a  statute  of  Utah  that,  "if  the 
indictment  is  for  a  felony,  the  defendant  must 
be  personally  present  at  his  trial;  but  if  for  a 
misdemeanor,  the  trial  may  be  had  in  the 
absence  of  the  defendant."  Held  that,  under 
this  statute,  the  accused  can  not  waive  his  right 
to  be  present  at  a  trial  for  felony,  even  durmg 
the  trial  of  challenges  of  jurors.  "We  are  of 
opinion  that  it  was  not  witnin  the  power  of  the 
accused  or  hia  counsel  to  dispense  with  the 
statutory  requirement  as  to  his  personal  presence 
at  the  trial.  The  argument  to  the  contrary 
necessarily  proceeds  upon  the  ground  that  he 
alone  is  concerned  as  to  the  mode  by  which  he ' 
may  be  deprived  of  his  life  or  liberty,  and  that 
the  chief  object  of  the  prosecution  is  to  punish 
him  for  the  crime  charged.  But  this  is  a  mis- 
taken view,  as  well  of  the  relations  which  the 
accused  holds  to  the  public  as  of  the  end  of 
human  punishment.  *  *  *  The  public  has 
an  interest  in  his  life  and  liberty.  Neither  can 
be  lawfully  taken  except  in  the  mode  pre 
scribed  by^  law.  That  which  the  law  makes 
essential  in  proceedings  involving  the  depriva- 
tion of  life  or  liberty  can  not  be  dispensed  with 
or  affected  by  the  consent  of  the  accused,  much 
less  by  his  mere  failure  to  object  to  unauthor- 
ized methods.  The  great  end  of  punishment 
is  not  the  expiation  or  atonement  of  the  offense 
committed,  but  the  prevention  of  future 
offenses  of  the  same  kind.  *  *  *  Such  be- 
ing the  relation  which  the  citizen  holds  to  the 
public,  and  the  object  of  punishment  for  public 
wrongs,  the  legislature  has  deemed  it  esssential 
to  the  protection  of  one  whose  life  or  liberty 
is  involved  in  a  prosecution  for  felony  that  he 
shall  be  personally  present  at  the  trial ;  that  is, 
at  every  stage  of  the  trial  when  his  substantial 


rights  may  be  affected  by  the  proceedings 
against  him.  If  he  be  deprived  of  his  life  or 
hborty  without  being  so  present,  such  depriva- 
tion would  be  without  that  due  process  of  law 
required  by  the  ("(mstitution."  (Hopt  v.  Utah, 
110  U.  S.,  574;  distinguished  in  Diaz  v.  U.  S., 
223  U.  S.,  442,  458,  and  in  Frank  v.  Mangum, 
237  U.  S.,  309.) 

"The  personal  presence  of  the  accused,  from 
the  beginning  to  the  end  of  a  trial  for  felony, 
involving  life  or  liberty,  as  well  as  at  the  time 
final  judgment  is  rendered  against  him,  may  be, 
and  must  be  a.ssumed  to  be,  vital  to  the  proper 
conduct  of  his  defense,  and  can  not  be  dis- 
pensed with."  (Schwab  v.  Berggren,  143  U.  S., 
442,  distinguished  in  Diaz  v.  U.  S.,  223  U.  S., 
442,  458.) 

Due  process  of  law  does  not  require  the  pres- 
ence of  the  accused  in  an  appellate  court  at  the 
time  the  judgment  sentencing  him  to  death  is 
affirmed.     (Schwab  v.  Berggren,  143  U.  S.,  442.) 

"In  trials  for  felonies,  it  is  not  in  the  power  of 
the  prisoner,  either  by  himself  or  his  counsel, 
to  waive  the  right  to  be  personally  jiresent  dur- 
ing the  trial.  The  making  of  challenges  is  an 
essential  part  of  the  trial  of  a  person  accused  of 
crime,  and  it  is  one  of  his  substantial  rights  to 
be  brought  face  to  face  with  the  jurors  when  the 
challenges  are  made."  (Lewis  v.  U.  S.,  146 
U.  S.,  370;  distinguished  in  Diaz  v.  U.  S.,  223 
U.S.,  442,  458.) 

"It  is  the  law  of  Kentucky  that  occasional 
absence  of  the  accused  from  the  trial  from 
which  no  injury  results  to  his  substantial  rights 
is  not  reversible  error.  And  we  think,  in  apply- 
ing that  rule  to  the  case  at  bar,  plaintiff  in  error 
was  not  deprived  of  due  process  of  law  within 
the  meaning  of  the  fourteenth  amendment  of 
the  Constitution  of  the  United  States."  (How- 
ard V.  Kentucky,  200  U.  S.,  164.)  "It  may  be 
admitted  that  the  words  'due  process  of  law,' 
as  used  in  the  fourteenth  amendment,  protect 
fundamental  rights.  What  those  are  can  not 
ever  be  the  cause  of  much  dispute.  In  giving 
them  protection,  however,  it  was  not  designed, 
as  was  observed  by  the  Chief  Justice  in  In  re 
Converse,  supra  (137  U.  S.,  024)  'to  interfere  with 
the  power  of  the  State  to  protect  the  lives, 
liberty,  and  property  of  its  citizens;  nor  with 
the  exercise  of  that  power  in  the_  ad  judication 
of  the  courts  of  the  State  in  administering  the 
process  provided  by  the  law  of  the  State.'" 
(Howard  V.  Kentucky,  200  U.  S.,  164,  173.) 

"While  the  rule  may  be  otherwise  in  cases 
that  are  capital,  or  where  the  accused  is  in 
custody  imder  the  control  of  the  court,  or  where 
special  statutory  provisions  apply,"  neverthe- 
less, "where  the  offense  is  not  capital,  and  the 
accused  is  not  in  custody,  his  voluntary  absence 
does  not  nullify  what  has  been  done  in,  or  pre- 
vent the  completion  of,  his  trial,  but  operates 
as  a  waiver  of  his  right  to  be  present  and  leaves 
the  court  free  to  proceed."  (Diaz  v.  U.  S.,  223 
U.  S.,  442.) 

"The  accused  was  represented  and  heard  by 
cotmsel  at  every  stage  of  the  proceedings.  He 
also  was  present  in  person  at  all  the  proceed- 
ings preliminary  to  the  trial  and  at  the  time  it 
was  begun  and  during  the  major  part  of  it. 
But  on  two  occasions,  in  the  latter  part  of  the 
trial,  he  voluntarily  absented  himself  and  sent 


126 


Presence  of  Accused. 


Pt.  1.   THE  CONSTITUTION. 


Fifth  Amendment. 


to  the  court  a  message  expressly  consenting 
that  the  trial  proceed  in  his  absence,  which  was 
done.  On  these  occasions  two  witnesses  for 
the  Government  were  both  examined  and  cross- 
examined.  No  complaint  grounded  upon  liis 
absence  was  made  in  the  trial  court  or  in  the 
Supreme  Court  of  the  Philippines;  and  the 
objection  now  made  is,  not  that  he  did  not 
voluntarily  waive  his  ri<jht  to  be  present,  if  he 
could  waive  it,  but  that  it  coidd  not  be  waived, 
and  that  the  court  was  therefore  without  power 
to  proceed  in  his  absence."  Under  these  cir- 
cumstances ' '  held  that  the  continuation  of  the 
trial  during  the  voluntary  absence  of  the  ac- 
cused in  this  case  wliile  it  proceeded  with  his 
counsel  present  did  not  violate  the  provisions 
of  section  5  of  the  Philippine  act  of  July  1,  1902, 
gi\ang  him  a  right  to  be  present  and  heard." 
(Diaz  V.  U.  S.,  223  U.  S.,  442.) 

"In  cases  of  felony  our  courts,  with  substan- 
tial accord,  have  regarded  it  [right  of  accused  to 
be  present]  as  extending  to  every  stage  of  the 
trial,  inclusive  of  the  empaneling  of  the  jury 
and  the  reception  of  the  verdict,  and  as  being 
scarcely  less  important  to  the  accused  than  the 
right  of  trial  itself.  And  with  like  accord  they 
have  regarded  an  accused  who  is  in  custody  and 
one  who  is  charged  with  a  capital  offense  as  in- 
capable of  waiving  the  right;  the  one,  because 
his  presence  or  absence  is  not  within  his  own 
control,  and  the  other,  because,  in  addition  to 
being  usually  in  custody,  he  is  deemed  to  suffer 
the  constraint  naturally  incident  to  an  appre- 
hension of  the  awful  penalty  that  would  follow 
conviction."  (Diaz  v.  U.  S.,  223  U.  S.,  442, 
455.) 

"But,  where  the  offense  is  not  capital  and  the 
accused  is  not  in  custody,  the  prevailing  rule 
has  been,  that  if,  after  the  trial  has  begun  in  his 
presence,  he  voluntarily  absents  himself,  this 
does  not  nullify  what  has  been  done  or  prevent 
the  completion  of  the  trial,  but,  on  the  contrary, 
operates  as  a  waiver  of  his  right  to  be  present 
and  leaves  the  court  free  to  proceed  with  the 
trial  in  like  manner  and  with  like  effect  as  if  he 
were  present."  (Diaz  v.  U.  S.,  223  U.  S.,  442, 
455.) 

Where  an  accused  who  was  at  large  on  bail 
was  present  when  his  trial  was  begun  and  during 
the  taking  of  a  portion  of  the  evidence  for  the 
Government,  and  then  fled  the  jurisdiction,  the 
trial  proceeded  in  his  absence,  the  remaining 
evidence  being  taken  and  a  verdict  of  guilt 
returned.  Subsequently  he  was  apprehended, 
and  sentence  was  then  imposed,  notwithstand- 
ing his  objection  that  the  trial  had  proceeded  in 
his  absence.  On  appeal  the  judgment  was 
affirmed,  the  court  stating:  "It  does  not  seem  to 
us  to  be  consonant  with  the  dictates  of  common 
sense  that  an  accused  person,  being  at  large 
upon  bail,  should  be  at  liberty,  whenever  he 
pleased,  to  withdraw  himself  from  the  courts  of 
his  country  and  to  break  up  a  trial  already  com- 
menced. The  practical  result  of  such  a  propo- 
sition, if  allowed  to  be  law,  would  be  to  prevent 
any  trial  whatever  until  the  accused  person 
himself  should  be  pleased  to  permit  it.  For  by 
thestatute  (Rev.  Stat,  of  U.  S., sec.  1015)  he  is 
entitled  as  a  matter  of  right  to  be  enlarged  upon 
bail  'in  all  criminal  cases  where  the  offense 
is  not  punishable  by  death' ;  and,  therefore,  in 


all  such  cases  he  may  by  absconding  prevent  a 
trial.  This  would  be  a  travesty  of  justice  which 
could  not  be  tolerated;  and  it  is  not  required  or 
justified  by  any  regard  for  the  right  of  personal 
liberty.  On  the  contrary,  the  inevitable  result 
would  be  to  abridge  the  right  of  personal  liberty 
by  abridging  or  restricting  the  right  now  granted 
by  the  statute  to  be  abroad  on  bail  until  the  ver- 
dict is  rendered.  But  we  do  not  think  that  any 
rule  of  law  or  constitutional  principle  leads  us  to 
any  conclusion  that  would  be  so  disastrous  as 
well  to  the  administration  of  justice  as  to  the 
true  interests  of  civil  liberty."  (Falk  v.  U.  S., 
15  App.  D.  C,  446,  454,  quoted  approvingly  in 
Diaz  V.  U.  S.,  223  U.  S.,  442,  457.) 

"The  question  is  one  of  broad  public  policy 
whether  an  accused  person,  placed  upon  trial  for 
crime  and  protected  by  all  the  safeguards  with 
which  the  humanity  of  our  present  criminal  law 
sedulously  surrounds  him,  can  with  impunity 
defy  the  processes  of  that  law,  paralyze  the  pro- 
ceedings of  courts  and  juries  and  turn  them  into 
a  solemn  farce,  and  ultimately  compel  society, 
for  its  own  safety,  to  restrict  the  operation  of  the 
principle  of  personal  liberty.  Neither  in  crim- 
inal nor  in  civil  cases  will  the  law  allow  a  person 
to  take  advantage  of  his  own  wrong.  And  yet 
this  would  be  precisely  what  it  would  do  if  it 
permitted  an  escape  from  pri.son,  or  an  abscond- 
ing from  the  jurisdiction  while  at  large  on  bail, 
during  the  pendency  of  a  trial  before  a  jury,  to 
operate  as  a  shield."  (Falk  v.  U.  S.,  15  App. 
D.  C,  446,  460,  quoted  approvingly  in  Diaz  v. 
U.  S.,  223  U.  S.,442,  458.) 

"The  right  of  a  prisoner  to  be  present  at  his 
trial  does  not  include  the  right  to  prevent  a 
trial  by  unseemly  disturbance.  The  defendant 
had  the  opportunity  to  be  present  at  the  whole 
of  his  trial.  He  was,  in  fact,  present  while  the 
jury  were  being  empaneled  and  the  evidence 
was  being  introduced.  He  was  absent  during  a 
part  of  the  opening,  only  because  of  his  own 
disorderly  conduct.  It  does  not  lie  in  his 
mouth  to  complain  of  the  order  which  was  made 
necessary  by  his  own  misconduct,  and  which  he 
could  at  any  time  have  terminated  by  signi- 
fying his  willingness  to  avoid  creating  disturb- 
ance. "  (U.  S.  V.  Davis,  25  Fed.  Cas.  No.  14923, 
cited  in  Diaz  v.  U.  S.,  223  U.  S.,  442,  456.) 

"If,  after  the  trial  of  an  indictment  is  com- 
menced, the  accused  escapes  from  custody,  and, 
for  that  reason,  his  further  attendance  can  not 
be  had,  the  trial  may  proceed  in  his  absence.  " 
(U.  S.  V.  Loughery,  26  Fed.  Cas.  No.  15631;  cited 
in  Diaz  v.  U.  S.,  223  U.  S.,  442, 456.) 

"In  cases  where  the  prisoner's  life  or  Liberty 
is  in  peril  he  must  be  present  during  the  whole 
of  the  trial  and  until  final  judgment.  If  absent, 
there  is  a  want  of  jurisdiction  of  the  person,  and 
the  court  can  not  proceed  with  the  trial  or  re- 
ceive the  verdict  or  pronounce  the  final  judg- 
ment. A  prisoner  in  custody  is  not  a  free  agent; 
his  being  in  court  depends  upon  proper  author- 
ity bringing  him  there;  he  can  not  waive  any- 
thing b>^  his  absence.  *  *  *  But  where  the 
offense  is  trivial  and  life  or  liberty  is  not  in 
eopardy,  therule  is  to  be  relaxed. "  (Weirman 
I).  U.  S.,_36Ct.  Cls.,  236.) 

"If  it  is  desirable  or  necessary  that  the  pris- 
oner in  a  civil  court  be  present  at  every  proceed- 
ing after  indictment,  it  seems  to  be  still  more  so 


127 


Filth  Amendment. 


rt.  1.  THE  CONSTITUTION. 


Remedy  of  Accused. 


tliat  a  prisoner  l)efore  a  coiirt-martial  should  he 
present,  for  ho  onliiuirily  is  not  ropreHcntcd  l>y 
counsel  learned  in  the  law  and  watch lul  of  his 
interests,  but  (as  in  this  case)  by  some  naval 
officer  acting  from  a  humane  motive.  "  (Weir- 
man  V.  U.  S.,  36  Ot.  01s.,  23G.) 

"The  court  will  always  roipiire  the  ])re8ence 
of  the  prisoner  in  court  during  trial,  if  he  l)e  in 
close  custody  of  the  law,  unless  in  case  the 
prisoner  exi)re88ly  himself,  and  not  l)y  counsel, 
waives  his  right  to  l)e  present,  but  the  court 
may  require  it  if  it  shall  deem  it  advisaljle 
to  do  so."  (State  v.  Kelly,  97  N.  C,  404, 
quoting  Falk  v.  U.  S.,  15  App.  D.  C,  457.) 

The  action  of  a  naval  court-martial,  in  per- 
mitting the  accused  upon  a  request  made  ex- 
pressly l)y  himself  and  not  merely  l>y  counsel  to 
be  absent  from  the  immediate  presence  of  the 
court  during  the  testimony  of  expert  witnesses 
for  the  defense  concerning  the  physical  and 
mental  condition  of  the  accused,  did  not  invali- 
date the  proceedings,  such  action  l)eing  due  to 
hTimanitarian  confiiderations  based  upon  repre- 
Bentations  of  counsel  for  the  accused  as  to  the 
latter 's health,  and  that  it  would  be  "cruel"  to 
require  his  personal  attendance  during  speci- 
fied portions  of  the  trial.  (G.  C.  M.  Rec.  29422. 
See  also  Simon  r.  Craft,  182  U.  S.,  427,  435,  ex- 
plained in  Frank  v.  Mangum,  237  U.  S.,309.) 
Nevertheless  courts-martial  are  empowered  to 
require  the  j^resence  of  the  accused  during  the 
entire  proceedings^  and  should  always  exercise 
this  power  to  avoid  any  possible  irregularity. 
(C.  M.  0.  51,  1914.) 

The  presence  of  the  judge-advocate  when  a 
naval  court-martial  is  closed  for  deliberation  and 
when  the  accused,  his  counsel,  and  spectators 
have  consequently  withdrawn,  while  a  grave 
irregularity  and  a  disregard  of  Navy  Regula- 
tions, would  not  necessarily  render  the  proceed- 
ings invalid.  (C.  M.  O.  6,  1915;  see  also  Ex 
parte  Tucker,  212  Fed.  Rep.,  569.) 

A  distinction  exists  "between  what  the  com- 
mon law  requires  with  resjiect  to  trial  l>y  jury  in 
crimijial  cases  and  what  the  States  may  enact 
without  contravening  the  'due  process'  clause 
of  the  fourteenth  amendment. "  Thus  "in  the 
Lewis  case  [above  noted]  which  was  a  convic- 
tion of  murder  in  a  circuit  court  of  the  United 
States,  the  trial  practice  being  regulated  by  the 
common  law,  it  was  held  to  be  a  leading  prin- 
ciple, pervading  the  entire  law  of  criminal  pro- 
cedure, that  after  indictment  nothing  shoiild  be 
done  in  the  absence  of  the  prisoner;  that  the 
making  of  challenges  is  an  essential  part  of  the 
triiil,  and  it  was  one  of  the  substantial  rights  of 
the  prisoner  to  l)e  brought  face  to  face  with  the 
jurors  at  the  time  the  challenges  were  made; 
and  that  in  the  absence  of  a  statute,  this  right  as 
it  existed  at  common  law  must  not  beabridged ; " 
while  in  Howard  v.  Kentucky  (above  noted) 
"this  court,  finding  that  by  the  law  of  the  State 
an  occasional  absence  of  the  accused  from  the 
trial,  from  which  no  injury  resulted  to  his  sub- 
stantial rights,  was  not  deemed  material  error, 
held  that  the  application  of  this  rule  of  law  did 
not  amount  to  a  denial  of  due  process  within  the 
meaning  of  the  fourteenth  amendment.  In 
fact,  this  coTirt  has  sustained  the  States  in  estab- 
lishing a  great  variety  of  departures  from  the 
common-law  procedure  respecting  jiuy  trials." 
(Frank  v.  Mangum,  237  U.  S.,  309.) 


"The  practice  established  in  the  criminal 
courts  of  Georgia  that  a  defendant  may  waive 
his  right  to  be  present  when  the  jury'renders 
its  verdict  and  that  such  waiver  may  be  given 
after  as  well  as  before  the  CAent  *  *  *  is  a 
regulation  of  criminal  procedure  that  it  is 
within  the  authority  of  the  State  to  adopt.  In 
adopting  it  the  State  declares  in  effect,  as  it 
reasonably  may  declare,  that  the  right  of  the 
accused  to  be  present  at  the  reception  of  the 
verdict  is  but  an  incident  of  the  right  of  trial  l\v 
jury;  and  since  the  State  may,  without  infring- 
ing the  fourteenth  amendment,  abolish  trial  by 
jury,  it  may  limit  the  effect  to  be  given  to  an 
error  respecting  one  of  the  incidents  of  such 
trial.  The  presence  of  the  prisoner  when  the 
verdict  is  rendered  is  not  so  essential  a  part  of 
the  hearing  that  a  rule  of  practice  permitting 
the  accused  to  waive  it,  and  holding  him  bound 
by  the  waiver,  amounts  to  a  deprivation  of  'due 
process  of  law.'  "  (Frank  v.  Mangum,  237 
U.  S.,  309.) 

"As  to  the  'due  process  of  law'  that  is  re- 
quired by  the  fourteenth  amendment,  it  is 
perfectly  well-settled  that  a  criminal  {prosecu- 
tion in  the  courts  of  a  State,  based  upon  a  law 
not  in  itself  repugnant  to  the  Federal  Con- 
stitution, and  conducted  according  to  the 
settled  course  of  judicial  proceedings  as  es- 
tablished by  the  law  of  the  State,  so  long  as  it 
includes  notice  and  a  hearing,  or  an  opportunity 
to  be  heard,  before  a  court  of  competent  juris- 
diction, according  to  established  modes  of 
procedure,  is  'due  process'  in  the  constitutional 
sense."     (Frank  v.  Mangum,  237  U.  S.,  309.) 

VI.  Remedy  when  Due  Process  Denied. 

Habeas  corpus  proceeding's  where  due 
process  of  law  alleged  to  have  been 
denied. — "It  is  clear  that  the  civil  courts  are 
in  no  sense  appellate  tribunals  for  the  revision 
of  proceedings  in  courts-martial.  It  has  been 
decided  that  in  such  cases  the  civil  courts 
should  not  interfere  if  it  appears  that  the  court- 
martial  has  jurisdiction  of  the  person  and  of  the 
subject  matter  wliich  was  tried  before  it, 
and  that  errors  of  procedure  in  military  courts 
can  be  corrected  only  by  the  proper  military 
authorities.  *  *  *  It  is  true  that  Tucker's 
legal  rights  were  disregarded  by  the  court- 
martial  when  it  allowed  the  judge  advocate  to 
be  present,  even  for  a  short  time,  at  the  closed 
session;  but  I  do  not  think  it  is  the  business  of 
this  court  to  correct  the  error.  The  statute  in 
question  relates  to  procedure,  not  to  jurisdiction, 
and  the  nonobservance  of  it  by  military  tribu- 
nals is  a  matter  for  the  revising  military  authori- 
ties, not  for  the  civil  courts."  (Ex  parte  Tucker, 
212  Fed.  Rep.,  569,  citing  act  July  27,  1892, 
sec.  2,  27  Stat.,  277,  relating  to  the  Army; 
there  is  no  similar  statute  relating  to  trials 
by  naval  court-martial.) 

"If  he  is  held  in  custody  by  reason  of  his  con- 
viction upon  a  criminal  charge  before  a  court 
ha\ing  plenary  jurisdiction  over  the  subject 
matter  or  offense,  the  place  where  it  was  com- 
mitted, and  the  person  of  the  prisoner,  it 
results  from  the  nature  of  the  writ  itself  that 
he  can  not  have  relief  on  habeas  corpus. 
Mere  errors  in  point  of  law,  however  serious, 


128 


Speedy  Trial. 


Pt.  1.   THE  CONSTITUTION. 


Sixth  Amendment. 


committed  by  a  criminal  court  in  the  exercise 
of  its  jurisdiction  over  a  case  properly  subject 
to  its  cognizance,  can  not  be  reviewed  by 
habeas  corpus.  That  writ  can  not  be  employed 
as  a  substitute  for  the  writ  of  error."  (Frank  v. 
Mangum,  237  U.  S.,  309.) 

"  Wliere  it  is  made  to  appear  to  a  court  of  the 
United  States  that  an  applicant  for  habeas  cor- 
pus is  in  the  custody  of  a  State  officer  in  the 
ordinary  course  of  a  criminal  prosecution,  under 
a  law  of  tlie  State  not  in  itself  repugnant  to  the 
Federal  Constitution,  the  writ,  in  the  absence 
of  very  special  circumstances,  ought  not  to  be 
issued  until  the  State  prosecution  has  reached 
its  conclusion,  and  not  even  then  until  the 
Federal  questions  arising  upon  the  record  have 
been  brought  before  this  court  upon  writ  of 
error."     (Frank  v.  Mangum,  237  U.  S.,  309.) 


"It  is  perfectly  obvious  that  where  such  an 
appeal  is  provided  for,  and  the  prisoner  has  had 
the  benefit  of  it,  the  proceedings  in  the  appel- 
late tribunal  are  to  be  regarded  as  a  part  of  the 
process  of  law  under  wliich  he  is  held  in  custody 
by  the  State,  and  to  be  considered  in  determin- 
ing any  question  of  alleged  deprivation  of  his 
life  or  liberty  contrary  to  the  fourteenth  amend- 
ment.'/    (Frank  v.  Mangum,  237  U.S.,  309.) 

"  It  is  open  to  the  courts  of  the  United  States, 
upon  an  application  for  a  writ  of  habeas  corpus, 
to  look  beyond  forms  and  inquire  into  the  very 
substance  of  tlie  matter,  to  the  extent  of 
deciding  whether  the  prisoner  has  been  de- 
prived of  his  liberty  without  due  process  of  law, 
and  for  tliis  purpose  to  inquire  into  jurisdictional 
facts,  whether  they  appear  upon  the  record  or 
not."     (Frank  v.  Mangum,  237  U.  S.,  309.) 


[ARTICLE  VI.] 

[Right  to  speedy  and  public  trial  by  jury ;  to  confront  witnesses ;  to  have 
counsel,  etc.]  In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and  district  wherein 
the  crime  shall  have  been  committed,  which  district  shall  have  been  previously 
ascertained  by  law,  and  to  be  informed  of  the  nature  and  cause  of  the  accusa- 
tion; to  be  confronted  with  the  witnesses  against  liim;  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have  the  Assistance  of  Coun- 
sel for  his  defence. 


I.  Speedy  Trial. 
II.  Public  Trial. 

III.  Jury  Trial. 

IV.  Impartial  Trial. 
Right  to  be  Informed  of  Accusation. 
Confronting  Witnesses. 
Compulsory  Process    for  Obtaining 

Witnesses. 
Assistance  of  Counsel. 


V 

VI 

VII 

VIII 


I.  Speedy  Trial. 

In  general.^"  The  right  of  a  speedy  trial 
is  necessarily  relative.  It  is  consistent  with 
delays  and  depends  upon  circumstances.  It 
secures  rights  to  a  defendant.  It  does  not  pre- 
clude the  rights  of  public  justice."  (Beavers 
V.  Haubert,  198  U.  S.,  86.) 

"The  discipline  necessary  to  the  efficiency 
of  the  Army  and  Navy  required  other  and 
swifter  modes  of  trial  than  are  furnished  by  the 
common  law  courts."  (Ex  parte  Milligan,  4 
Wall.,  3,  123.) 

Provisions  to  secure  this  right  in  the 
Navy. — No  person  shall  be  tried  by  naval  court- 
martial  for  any  offense  committed  more  than 
two  years  before  the  issuing  of  the  order  for 
his  trial,  unless  by  reason  of  some  manifest 
impediment  he  shall  not  have  been  amenable 
to  justice  within  that  period.  (Art.  61,  A.  G. 
N.,  sec.  1624,  R.  S.,  as  amended  by  act  Feb. 
25, 1895,  28  Stat.,  680.  As  to  special  provisions 
relating  to  trials  for  desertion,  see  same  act. 


art.  62,  A.  G.  N.)  This  legislation  was  in- 
tended "to  require  reasonable  diligence  on 
the  part  of  public  officers  in  apjirehending 
offenders  and  bringing  them  to  justice,  and 
not  to  place  a  premium  on  the  ingenuity  of 
such  offenders  as  succeeded  in  concealing 
their  whereabouts  and  escaping  apprehension 
for  a  limited  period."  (C.  M.  O.  27,  1913; 
file  26251-9538,  Oct.  30,  1914.) 

"Offenses  shall  not  be  allowed  to  accumu- 
late in  order  that  sufficient  matter  may  thus 
be  collectively  obtained  for  a  trial,  without 
giving  due  notice  to  the  offender."  (Art. 
R-1411,  Navy  Regs.,  1913.) 

"The  certainty  of  prompt  punishment  ia 
more  conducive  to  discipline  than  punish- 
ment deferred  long  after  the  offense."  (Art. 
R-1404,  Navy  Regs.,  1913.) 

'Whenever  practicable,  the  trial  by  deck 
court  of  a  person  in  the  Navy  shall  take  place 
"within  48  hours  after  the  offense  ia  commit- 
ted" (Naval  Courts  and  Boards,  1917,  sec.  480.) 
If  it  is  decided  by  the  competent  officer  that 
the  accused  shall  be  brought  to  trial  before  a 
courts-martial,  "the  court  shall  be  assembled 
for  that  purpose  as  soon  as  the  nature  of  the 
case  and  the  interests  of  the  public  service 
will  allow."    (Art.  R-1408,  Navy  Regs.,  1913.) 

"  WTien  the  proceedings  of  any  general  court- 
martial  have  commenced,  they  shall  not  be 
suspended  or  delayed  on  account  of  the  ab- 
sence of  any  of  the  members,  provided  five  or 
more  are  assembled;  but  the  court  is  enjoined 
to  sit  from  day  to  day,  Sundays  excepted,  until 
sentence  is  given,  unless  temporarily  ad- 
journed by  the  authority  which  convened  it," 
(Art.  45,  A.  G.  N.,  sec.  1624,  R.  S.) 


129 


Sixth  Amendment. 


PL  1.  THE  CONSTITUTION. 


Jury  Trial. 


It  should  not  be  attempted  to  conduct  a 
trial  by  general  court-martial  in  undue 
haste  ami  at  unusual  hours.  The  aclioii  of  a 
naval  cdurt-martial,  after  completing  a  trial 
whieh  hail  lasted  several  days,  in  immediately 
commencing  another  trial  at  5.15  in  the  after- 
noon and  completing  it  the  same  day,  when  the 
case  was  not  one  of  extraordinary  urgency,  is  not 
a]ii)roved  by  the  Navy  Department.  In  this 
case,  the  court's  findings  and  the  errors  made 
in  the  record  strikingly  exemplified  the  con- 
sequences of  its  action,  and  must  be  attributed 
to  some  extent  to  "overfatigue  of  the  mind" 
and  undue  haste  resulting  from  the  unusual 
hour  at  which  the  proceedings  were  com- 
menced and  hurried  to  a  conclusion.  Had  the 
accused  been  convicted  and  given  a  substan- 
tial punishment,  counsel  in  his  behalf  might 
well  have  urged  that  the  case  had  not  been 
given  the  time  and  careful  consideration  to 
which  it  was  entitled.  (C.  M.  O.  27,  1913; 
Naval  Courts  and  Boards,  1917,  sec.  216.) 

II.  Public  Trial. 

In  general.— "The  sessions  of  courts-mar- 
tial shall  be  public,  and  all  persons  except  such 
as  may  be  required  to  give  evidence  shall  be 
admitted."  (Naval  Courts  and  Boards,  1917, 
sec.  217.) 

All   deliberation   of   a   court-martial   takes 

f)lace  with  closed  doors.  "At  other  times 
except  as  to  those  persons  who  have  been 
summoned  as  witnesses]  it  is  open  to  the  pub- 
lic, military  or  otherwise,  with  such  limita- 
tion as  the  capacity  of  the  room  or  tent  in 
which  it  is  held,  and  the  convenience  of  the 
court  and  parties  before  it,  may  dictate." 
(Simmons,  3d  ed.,  175.) 

[By  act  of  March  3,  1913  (37  Stat.,  731),  re- 
lating to  the  taking  of  evidence  in  equity  pro- 
ceedings under  the  Antitrust  Act,  it  was  pro- 
vided that  "the  proceedings  shall  be  open  to 
the  public  as  freely  as  are  trials  in  open  court; 
and  no  order  excluding  the  public  from  at- 
tendance on  any  sucli  proceedings  shall  be 
valid  or  enforceable."] 

"A  court  of  the  United  States  ought 
never  to  sit  -with  its  doors  of  entrance 
closed,  so  as  to  prevent  publicity  in  its  proceed- 
ings, but  its  i)olice  must  be  maintained.  Where 
the  court  has  not  prescribed  any  general  rule  or 
made  any  special  or  particular  order  on  the 
subject,  the  specific  duty  of  the  marshal  to 
maintain  and  regulate  its  police  according  to 
law  is  an  incident  of  his  general  duty  to  at- 
tend the  court.  WTien,  during  the  pendency 
of  a  particular  proceeding,  there  is  reason  to 
believe  that  an  unrestricted  admission  of  per- 
sons of  a  known  class  or  association  would  en- 
danger the  security  of  the  administration  of 
justice,  or  in  any  manner  prevent  the  police 
of  the  court  from  being  properly  maintained, 
the  marshal,  without  excluding  absolutely 
such  persons  as  a  class,  may  adopt  prudential 
measures  to  prevent  their  indiscriminate  ad- 
mission, regulating  the  exercise  of  his  discre- 
tion so  that  their  exclusion  is  not  carried  be- 
yond the  exigency  of  the  particular  occasion." 
(U.  S.  V.  Buck,  24  Fed.  Cas.  No.  14680.) 

"The  statutes  regulating  the  course  of  pro- 
cedure in  military  courts  show  that,  in  con- 


templation of  Congress,  these  courts  stand  on 
the  same  footing  as  other  judicial  tribunals  of 
the  country.  Their  sittings,  for  example,  are 
free  to  the  attendance  of  the  public,  like  those 
of  other  courts  *  *  *."  (11  Op.  Atty. 
Gen.,  137,  141.) 

"^\^letller  a  court-martial  may  technically 
within  its  legal  right  close  its  doors  to  the 
public  during  the  trial  of  an  accused,  such  a 
procedure  is  contrary  to  the  authority  of  text 
■svriters  on  the  subject,  to  the  spirit  of  the  Con- 
stitution, and  to  the  usual  practice  of  the  Fed- 
eral courts.  To  permit  closed  sessions  would 
be  to  introduce  a  practice  into  the  service  that 
might  be  made  an  instrument  of  oppression 
contrary  to  the  genius  of  our  laws  and  institu- 
tions, to  a  sound  public  policy,  and  one  which, 
while  upon  occasion  might  be  of  benefit  to  an 
accused,  could  be  made  in  cases  a  most  objec- 
tionable procedure."  (File  2G504-115,  Jan. 
24,  1911.) 

"The  exclusion  of  persons  in  certain 
cases  [where  the  evidence  is  indecent],  as 
above  indicated  [decisions  of  State  courts],  may 
have  been  allowed,  but  it  seems  to  be  contrary 
to  the  spirit  if  not  to  the  letter  of  the  Constitu- 
tion; and  in  the  case  of  courts-martial  [Navy] 
it  is  certainly  contrary  to  a  practice  that  has 
extended  uniformly,  so  far  as  precedents  have 
been  discovered,  for  very  many  years." 
(File  26504-115,  Jan.  24,  1911.)  As  to  the  ex- 
clusion of  certain  classes  of  persons  in  trials  by 
State  courts,  see  State  v.  Henslev  (75  Ohio 
Stat.,  255,  9  Ann.  Cas.,  108);  State  v.  Nyhus 
(19  N.  D.,  326,  27  L.  R.  A.  (N.  S.),  487). 

"The  sessions  of  a  general  court-martial  shall 
be  public,  and  in  general  all  persons  except 
such  as  may  be  required  to  give  evidence 
shall  be  admitted .  However,  in  cases  where  it 
may  seem  desirable  that  certain  classes  of  spec- 
tators, such  as  women,  children,  and  others, 
should  be  excluded  during  the  trial,  the  court, 
when  convened  by  the  Secretary  of  the  Navy 
or  the  convening  authority  in  other  cases, 
should  communicate  with  the  Secretary  of 
the  Navy  requesting  permission  therefor  and 
giving  a  full  statement  of  the  reasons."  (C. 
M.  O.  51,  1914.) 

III.  Jury  Trial. 

Special  cases. — See  note  to  Article  I,  section 
8,  clause  14,  "Trials  by  jury  not  required  in  the 
Navy." 

"The  trial  of  all  offenses  committed  upon  the 
high  seas,  or  elsewhere  out  of  the  jurisdiction 
of  any  particular  State  or  district,  shall  be  in 
the  district  where  the  offender  is  found,  or  into 
which  he  is  first  brought."  (Act  Mai-.  3,  1911, 
sec.  41,  36  Stat.,  1100.) 

This  legislation  is  not  exclusive  of  the  juris- 
diction of  a  consular  tribunal  in  China,  etc.,  to 
try  for  a  similar  offense  committed  on  board  a 
private  ship  of  the  United  States  in  a  port  of 
the  country  in  which  the  tribunal  is  established, 
when  the  offender  is  not  taken  to  the  United 
States.     (In  re  Ross,  140  U.  S.,  453.) 

A  homicide  committed  on  a  naval  hospital 
ship  at  Olongapo,  P.  I.,  occurred  "out  of  the 
jurisdiction  of  any  particular  State  or  district." 
(28  Op.  Atty.  Gen.,  24. ^ 


130 


Confronting  Witnesses. 


Pt.  1.  THE  CONSTITUTION. 


Sixth  Amendment. 


IV.  Impartial  Trial. 

Right  of  challenge. — In  trials  by  naval  gen- 
eral court-martial,  ''the  accused  and  the  judge 
advocate  have  the  mutual  right  of  challenge.  It 
is  the  duty  of  the  judge  advocate  to  ask  the  ac- 
cused if  he  objects  to  anj^  member  of  tlie  court 
appointed  to  try  him,  and  a  minute  of  this  in- 
quiry and  the  answer  thereto  is  invariably  to 
be  entered  on  the  record.  As  a  general  rule, 
whatever  objection  either  party  may  make  to 
any  member  shall  be  decided  upon  before  the 
court  is  sworn,  but  at  any  stage  of  the  proceed- 
ings prior  to  the  findings  challenges  may  be 
made,  either  by  tlie  judge  advocate  or  the  ac- 
cused, for  cause  not  j^reviously  known.  *  *  * 
The  objection,  the  cause  assigned,  the  state- 
ment, if  any,  of  the  challenged  member,  and 
the  decision  of  the  court  shall  be  regularly  and 
specifically  entered  on  the  record."  (Naval 
Courts  and  Boards,  1917,  sec.  277.) 

Members  of  a  naval  court-martial  may 
testify  as  witnesses  in  a  case  and  then  resume 
their  seats  as  members.  (Naval  Courts  and 
Boards,  1917,  sec.  139.)  "Under  the  settled 
law  of  e\'idence  members  of  a  jury  are  competent 
witnesses  in  a  criminal  case  on  trial  before  them, 
and  it  has  been  held  that  'the  analogy  of  a  court- 
martial  is  that  of  a  jury  in  the  trial  of  a  ci\-il 
case,  the  approving  power  in  the  former  occu- 
pying the  relation  of  the  judge  in  the  latter.'  " 
Furthermore,  the  practice  of  permitti.ig  the 
judge  in  a  civil  court  to  testify  as  a  witness  in  a 
case  before  him  is  authorized  by  statute  in  at 
least  one  State,  has  been  judicially  upheld  in 
other  States,  and  has  been  practiced  and  upheld 
in  the  highest  court  of  England.  (File  26251- 
6020:11;  see  also  Keves  v.  U.  S.,  15  Ct.  Cls.,  533; 
affirmed  109  U.  S.,  336.) 

The  objection  to  a  membei  of  a  court-martial 
continuing  to  sit  as  si;ch  after  testifying  against 
the  accused,  goes  to  the  propriety  of  his  sitting 
under  the  circumstances,  not  to  his  legal  capacity 
thus  to  sit.     Qo  Op.  Atty.  Gen.,  434.) 

"Tlie  rules  in  regard  to  tlie  competency  of 
witnesses  are  the  same  in  courts-martial  as  in 
the  courts  of  the  common  law.  Hence,  as  we 
have  seen,  the  prosecutor  is  admissible  as  a 
witness,  as  also  are  the  members  of  the  court." 
Where  a  member  testifies  as  a  witness  "he  is 
not  thereby  disqualified  from  resuming  his  seat 
as  a  member  of  the  court,  but  where  there  is  a 
sufficient  number  of  members  without  him  to 
constitute  the  court,  it  is  more  in  accordance 
with  the  usage  in  ci-vil  courts  that  he  should 
withdraw."  (Greenleaf  on  Evidence,  16th  ed., 
sec.  487,  p.  465.) 

V.  Right  to  be  Informed  of  Accusation. 

Arrests  in  the  Navy.— "The  person  ac- 
cused shall  be  furnished  with  a  true  copy  of 
the  charges,  with  the  specifications,  at  the  time 
he  is  put  under  arrest;  and  no  other  charges 
than  those  so  furnished  shall  be  urged  against 
him  at  the  trial,  unless  it  shall  appear  to  the 
court  that  intelligence  of  such  other  charges  had 
not  reached  the  officer  ordering  the  court  when 
the  accused  was  put  under  arrest,  or  that  some 
witness  material  to  the  support  of  such  charge 
was  at  that  time  absent  and  can  be  produced 
at  the  trial;  in  which  case  reasonable  time  shall 


be  given  to  the  accused  to  make  his  defense 
against  such  new  charge."  (Art.  43,  A.  G.  N., 
sec.  1624,  R.  S.  See  note  to  said  section  for 
cases  construing  and  applying  this  article.) 

VI.  Confronting  Witnesses. 

This  constitutional  provision  does  not  apply 
to  the  Navy.  (MuUan  v.  U.  S.,  42  Ct.  Cls.,  157, 
176;  affirmed  212  U.S.,  516.) 

Use  of  depositions. — It  is  provided  by 
statute  that  "the  depositions  of  witnesses  may 
be  taken  on  reasonable  notice  to  the  opposite 
party,  and  when  duly  authenticated,  may  be 
put  in  evidence  before  naval  courts,  except 
in  capital  cases  and  cases  where  the  pun- 
ishment may  be  imprisonment  or  confinement 
for  more  than  one  year  as  follows:  First,  depo- 
sitions of  civilian  witnesses  residing  outside 
the  State,  Territory,  or  district  in  which  a 
naval  court  is  ordered  to  sit;  second,  deposi- 
tions of  persons  in  the  naval  or  military  service 
stationed  or  residing  outside  the  State,  Terri- 
torj',  or  District  in  which  a  naval  court  is 
ordered  to  sit,  or  who  are  under  orders  to  go 
outside  of  such  State,  Territory,  or  District; 
third,  where  such  naval  court  is  convened  on 
boai'd  a  vessel  of  the  United  States,  or  at  a 
nav^al  station  not  within  any  State,  Territory,  or 
District  of  the  United  States,  the  depositions 
of  witnesses  may  be  taken  and  used  as  herein 
proA'ided  whenever  such  witnesses  reside  or  are 
stationed  at  such  a  distance  from  the  place 
where  said  naval  com't  is  ordered  to  sit,  or  are 
about  to  go  to  such  a  distance  as,  in  the  judg- 
ment of  the  convening  authority,  would  render 
it  impracticable  to  secure  their  personal  at- 
tendance." (Act  Feb.  16,  1909,  sec.  16,  35 
Stat.,  622;  see  also  art.  25  Articles  of  War.  sec. 
1342,  R.  S.,  as  amended  by  act  of  Aug.  29, 
1916,  39  Stat.,  655,  which  contains  broader  pro- 
visions with  reference  to  use  of  depositions 
before  Army  courts;  and  see  9  Op.  Attv.  Gen., 
311,  312,  and  file  26260-1392,  June  29,  1911, 
p.  30;  see  also  2  Op.  Atty.  Gen.,  344.) 

"In  any  case  where  it  is  necessaiy  to  use 
depositions  at  the  trial  thereof  and  depositions 
are  so  used,  the  maximum  punishment  under 
such  circumstances  shall  in  no  case  exceed  im- 
prisonment or  confinement  for  one  year." 
(Naval  Courts  and  Boards,  1917,  sec.  390.) 

*'The  proceedings  of  courts  of  inquiry 
shall  *  *  *  in  all  cases  not  capital,  nor  ex- 
tending to  the  dismissal  of  a  commissioned  or 
warrant  officer,  be  e\'idence  before  a  court-mar- 
tial, provided  oral  testimony  can  not  be  ob- 
tained." (Art.  60,  A.  G.  N.,  sec.  1624,  R.  S.; 
C.  M.  0.  46,  1917,  p.  13;  Naval  Courts  and 
Boards,  1917,  sec.  198,  Changes  No.  1.) 

"If,  in  the  case  of  a  commissioned  or  warrant 
officer,  the  maximum  sentence,  under  the 
*  *  *  limitations  of  punishment,  extends  to 
dismissal,  and  if,  upon  the  trial,  oral  testimony 
can  not  be  obtained,  by  reason  of  which  fact 
the  record  of  proceedings  of  the  court  of  inquiry, 
upon  whose  findings  such  trial  is  wholly  or 
partially  based  is  used  in  CAddence,  the  maxi- 
mum punishment  which  may  be  imposed  shall 
not  extend  to  dismissal,  but  shall,  instead,  be 
limited  not  to  exceed  the  loss  of  100  numbers 
in  rank."  (Naval  Courts  and  Boards,  1917, 
sec.  390.) 


131 


Sixth  Amendment. 


Ft.  1.   THE  CONSTITUTION.      Attendance  of  Witnesses. 


"  All  testimony  before  a  summary  conrt- 
martialsluill  be, tjiveu  orally,  upon  oath  or  allir- 
nuition,  administered  by  the  senior  member  of 
the  court."    (Art.  29.  A.  G.  N.,  sec.  1G24,  K.  S.) 

In  proceedings  before  courts  of  inquiry 
' '  the  ]iarty  whose  conduct  shall  be  tlie  subject  of 
inquiry,  or  his  attorney,  shall  have  the  right  to 
cross-examine  all  the  wdtnesses."  (Art.  59, 
A.  G.  N.,  sec.  1G24,  R.  S.) 

"The  primary  object  of  the  constitu- 
tional provision  in  question  was  to  prevent 
depositions  or  ex  parte  aflidavits,  such  as  were 
Bometimes  admitted  in  civil  cases,  being  used 
against  the  prisoner  in  lieu  of  a  personal  exam- 
ination and  cross-examination  of  tlie  witness  in 
which  the  accused  has  an  opportunity,  not  only 
of  testing  the  recollection  and  sifting  the  con- 
science of  the  witness,  but  of  compelling  him 
to  stand  face  to  face  with  the  jury  in  order  that 
they  may  look  at  him,  and  judge  by  his  de- 
meanor upon  the  stand  and  the  manner  vn 
which  he  gives  his  testimony  whether  he  is 
worthy  of  belief."  (Mattox  v.  U.  S.,  156  U.  S., 
240.) 

The  admission  of  a  deposition  in  evidence 
against  an  accused  on  trial  in  a  State  court  does 
not  violate  any  right  which  he  possesses  under 
the  Federal  Constitution.  The  provision  of  the 
sixth  amendment  relating  to  the  subject  does 
not  apply  to  State  courts,  and  the  right  to  be 
confronted  with  the  witnesses  against  him  does 
not  extend  to  the  defendant  in  a  State  cotirt 
under  the  provision  of  the  fourteenth  amend- 
ment that  no  State  shall  deprive  any  person  of 
life,  liberty,  or  property  "without  due  process 
of  law. ' '  The  admission  of  the  deposition  ' '  was 
but  a  slight  extension  of  the  rule  of  the  common 
law,  even  as  contended  for  by  counsel.  The 
extension  is  not  of  such  a  fundamental  char- 
acter as  to  deprive  the  accused  of  due  process  of 
law  *  *  *.  The  accused  has,  as  held  by 
the  State  court  in  such  case,  been  once  con- 
fronted with  the  witness  and  has  had  oppor- 
tunity to  cross-examine  him,  and  it  seems  rea- 
sonable that  when  the  State  can  not  procure 
the  attendance  of  the  witness  at  the  trial  and 
he  is  a  nonresident  and  is  permanently  beyond 
the  jurisdiction  of  the  State  that  his  deposition 
might  be  read  equally  as  well  as  when  his  at- 
tendance could  not  be  enforced  because  of 
death  or  of  illness  or  his  evidence  given  by 
reason  of  insanity."  (West  v.  Louisiana,  194 
U.  S.,  258.) 

Dying  declarations. — This  provision  of  the 
Constitution  does  not  prevent  the  admission  of 
dying  declarations  in  accordance  with  rules  of 
evidence  which  were  well  established  long  be- 
fore the  adoption  of  the  ConstitTition.  (Kirby 
V.  U.  S.,  174  U.  S.,  61.) 

"Witness  absent  by  fault  of  accused. — 
'  'The  Constitution  gi\'es  the  accused  the  right  to 
a  trial  at  which  he  should  be  confronted  with 
the  witnesses  against  him;  biit  if  a  witness  is 
absent  by  his  own  ^vrongful  proctirement  he 
can  not  complain  if  competent  evidence  is  ad- 
mitted to  supply  the  place  of  that  which  he 
had  kept  away.  The  Constitution  does  not 
guarantee  an  accused  person  against  the  legiti- 
mate consequences  of  his  o^vn  wrongful  acts. 
It  grants  him  the  privilege  of  being  confronted 


with  the  witnesses  against  him,  but  if  he  vol- 
untarily keeps  the  witnesses  away  he  can  not 
insist  on  his  privilege.  If,  therefore,  when 
absent  ))y  his  procurement,  their  evidence  is 
supplied  in  some  lawful  way,  he  is  in  no  con- 
dition to  assert  that  his  constitutional  rights 
have  been  violated."  (Reynolds  v.  U.  S.,  98 
U.  S.,160.) 

Admissions  as  to  what  -witness  would 
testify  if  present. — "Article  6  of  the  amend- 
ments *  *  *  gives  the  accused  a  right  to  a 
trial  l)y  jury.  But  the  same  article  gives  him 
the  fiirlher  right  to  be  confronted  with  the  wit- 
nesses against  him  and  to  have  the  assistance  of 
counsel .  Is  it  possible  than  an  accused  can  not 
admit  and  be  bound  by  the  admission  that  a 
witness  not  present  would  testify  to  certain 
facts?  Can  it  be  that  if  he  does  not  wish  the 
assistance  of  counsel  and  waives  it  the  trial  is 
invalid?  It  seems  only  necessary  to  ask  these 
questions  to  answer  them.  "NMien  there  is  no 
const itTitional  nor  statutory  mandate  and  no 
public  policy  prohibiting,  an  accused  may 
waive  any  privilege  which  he  is  given  the 
right  to  enjoy."  (Schick v.  U.S.,  195 U.  S.,  65, 
71;  MuUan  v.  U.  S.,  212  U.  S.,  516,  520.) 

'*  A  commissioned  oflBLcer  of  the  Navy  can 
waive  the  provisions  of  article  60  of  section 
1624,  Revised  Statutes,  and  allow  the  proceed- 
ings of  a  court  of  inquiry  to  be  evidence  on  a 
court-martial  the  sentence  of  which  may  extend 
to  his  dismissal;  *  *  *  and  where,  at  the 
reqxiest  of  such  an  officer,  the  Secretary  of  the 
Navy  convenes  a  court-martial  to  try  him  on 
matter  which  had  already  been  the  subject  of 
a  court  of  inquiry,  on  condition  that  the  pro- 
ceedings of  such  court  of  inquiry  be  evidence, 
each  party  having  the  privilege,  however,  of 
introducing  other  evidence,  the  accused  is  not 
deprived  of  any  substantial  right  so  that  the 
sentence  of  the  court-martial  is  invalidated." 
(Mullan  V.  U.  S.,  212  U.  S.,  516.) 

VII.  Compulsory  Process  for  Obtaining 
Witnesses. 

A  naval  court-martial  or  court  of  in- 
quiry has  power  to  issue  like  process  to  com- 
pel witnesses  to  appear  and  testify  which 
United  States  courts  of  criminal  jurisdiction 
within  the  State,  Tenitory,  or  district  where 
such  naval  court  is  ordered  to  sit  may  lawfully 
issue;  and  persons  duly  subpoenaed  as  wit- 
nesses before  general  courts-martial  or  courts  of 
inquiry,  who  refuse  to  appear  or  to  testify,  may 
be  punished  by  fine  and  imprisonment,  except 
where  such  persons  reside  beyond  the  State, 
Territory,  or  district  in  which  such  naval  court 
is  held.  (Act  Feb.  16,  1909,  sees.  11  and  12,  35 
Stat.,  621,  622.) 

' '  The  accused  is,  in  general,  entitled  to  have 
all  the  material  witnesses  for  his  defense  sum- 
moned, except  when  their  testimony  would  be 
merely  cumulative  and  evidently  add  nothing 
to  the  strength  of  his  case.  As  far  as  possible 
he  should  be  allowed  a  full  and  free  defense,  as 
the  least  denial  to  him  of  any  proper  facility, 
opportunity,  or  latitude  for  it  may  serve  to  de- 
feat the  ends  of  justice."  (Naval  Courts  and 
Boards,  1917,  sec.  126.) 


132 


Suits  at  Common  Law. 


PL  1.  THE  CONSTITUTION. 


Seventh.  Amendment. 


The  Navy  Department  will  not,  at  the  ex- 
pense of  the  United  States,  summon  witnesses 
from  a  distance,  either  for  the  prosecution  or 
the  defense,  who  have  no  personal  knowledge 
of  the  facts  at  issue.  The  best  e\ddence  of  the 
character  of  the  accused  is  his  official  record  in 
the  service,  which  is  furnished  the  judge  advo- 
cate; while  members  of  the  court-martial  in  this 
case,  and  officers  who  are  on  duty  at  the  place 
of  trial,  have  had  service  which  should  render 
them  fully  competent  to  qualify  as  experts  and 
testify  as  such  either  for  the  prosecution  or  the 
defense.  (File  26251-7777:3,  July  5,  1913; 
Naval  Courts  and  Boards,  1917,  sec.  125.) 

[Medical  experts  are  in  practice  employed 
and  paid  by  the  accused,  ancl  are  not  summoned 
by  the  Government  as  witnesses  for  the  accused. 
G.  C.  M.  Rec.  Nos.  28613,  29422;  Ct.  oflnq. 
Rec.  No.  5777;  C.  M.  O.  20-1915,  p.  6;  see  also 
note  to  sec.  848,  R.  S.] 

As  to  right  of  compulsory  process  to  compel 
Members  of  Congress  to  attend  and  testify  be- 
fore naval  courts,  see  note  to  Article  I,  section 
6,  clause  1.  Upon  question  of  issuing  process 
to  secure  the  attendance  of  the  President  as  a 
witness,  see  note  to  Article  II,  section  1, 
clause  1. 

VIII.  Assistance  of  Counsel. 

Trials  in  the  Navy. — In  trials  by  naval 
court-martial  the  accused  is  entitled  to  coun- 
sel as  a  right,  and  the  court  can  not  properly 
deny  him  the  assistance  of  a  professional  or  other 
adviser.  Enlisted  men  to  be  tried  shall  be  par- 
ticularly advised  of  their  rights  in  the  premises, 
and  should  be  represented  by  counsel,  if  prac- 
ticable, unless  they  explicitly  state  that  they  do 
not  desire  such  assistance.  "VMien  the  accused 
has  no  legal  adviser,  the  commandant  of  the  navy- 
yard  or  station,  the  commander  in  chief,  or  the 
senior  officer  present,  within  whose  jurisdiction 
the  court  sits,  shall,  if  the  accused  so  requests, 
detail  a  suitable  officer  to  act  as  his  counsel. 
If  there  be  no  such  officer  available,  the  fact 
shall  be  reported  to  the  convening  authority 
for  action.  An  officer  so  detailed  shall  perform 
such  duties  as  usually  devolve  upon  the  counsel 
for  the  defense  before  civil  courts  in  criminal 
cases.  As  such  counsel  he  shall  use  all  legal 
means  to  protect  the  interests  of  the  accused 
and  to  present  to  the  court  such  defense  as  the 
accused  may  have.  (Naval  Courts  and  Boards, 
1917;  sees.  265,  266.) 

"The  accused  and  his  counsel  have  a  right  to 
the  opinion  of  the  judge  advocate,  in  or  out  of 
court,  upon  any  question  of  law  arising  out  of 
the  proceedings."  (Naval  Courts  and  Boards, 
1917,  sec.  254.) 

"In  the  event  that  the  accused  has  no  coun- 


sel, the  judge  advocate  shall  protect  his  inter- 
ests, having  in  mind,  however,  at  all  times  his 
duties  as  prosecutor."  (Naval  Courts  and 
Boards,  1917,  sec.  255.) 

"The  complainant  and  all  defendants  or  in- 
terested parties  before  a  court  of  inquiry  may 
be  allowed  to  have  friends  or  counsel  present 
during  open  court. "  (Naval  Courts  and  Boards, 
1917,  sec.  508.)  "The  party  whose  conduct 
shall  be  the  subject  of  inquiry,  or  his  attorney, 
shall  have  the  right  to  cross-examine  all  the  wit- 
nesses."    (Art.  59,  A.  G.  N.,  sec.  1624,  R.  S.) 

\\'hen  an  enUsted  man,  while  a  prisoner  at 
large  aAvaiting  trial  by  summary  court-martial, 
was  afforded  ample  time  in  which  to  secure 
civilian  counsel,  but  at  his  trial  requested  a 
postponement,  for  such  time  as  he  would  be  per- 
mitted, to  go  in  person  to  some  city  in  the  State 
for  the  puqiose  of  engaging  counsel,  the  court 
pro23erly  decided  that  this  request  was  unrea- 
sonable. This  action  of  the  court  did  not  deny 
the  accused  the  right  to  be  represented  by  civil- 
ian counsel,  but  decided  in  effect  that,  as  he  had 
had  ample  time  and  opportunity  to  secure  coun- 
sel and  had  failed  to  do  so,  his  demand  that  he 
be  set  at  Uberty  for  this  purpose  was  unreason- 
able. The  accused  refused  to  allow  any  officer 
of  the  Na\^'  on  duty  at  place  of  trial  to  act  as  his 
counsel,  whereupon  the  court  properly  decided 
that  the  accused  "  had  denied  himself  the  bene- 
fit of  counsel,"  and  proceeded  with  the  trial. 
(File  26287-15:37,  Apr.  7,  1913,  S.  C.  M.  Rec. 
No.  5131, 1913.) 

"  The  courts  have  repeatedly  decided  that  the 
defendant  in  a  criminal  case  in  which  counsel  is 
appointed  for  him  by  the  Government  has  no 
choice  in  the  matter  and  his  wishes  even  are  not 
to  be  consulted  as  to  the  individual  who  shall  be 
designated  to  defend  him."  (File  26251-6020: 
11,  July  7,  1913.) 

When  it  is  contended  by  civilian  counsel  em- 
ployed by  the  accused  after  completion  of  the 
trial,  "  that  the  accused  was  not  properly  repre- 
sented by  counsel,"  the  commissioned  officer 
appointed  to  defend  him  being  incompetent, 
and  at  the  same  time  it  is  asserted  "that  the 
accused  should  have  been  acquitted  upon  the 
evidence  before  the  court,"  the  contention  is 
considered  "as  being  wholly  without  merit." 
Such  contentions  have  been  many  times  urged 
in  criminal  cases,  and  likewise  have  been  many 
times  frowned  down  upon  and  discouraged  by 
the  courts.  As  stated  by  the  supreme  court  of 
Missouri  in  such  a  case,  with  reference  to  coun- 
sel representing  the  accused  at  his  trial,  "if  he 
did  nothing  else  he  seems  to  have  convinced  his 
successor,  the  present  counsel  in  the  case,  that 
upon  the  facts  disclosed  he  ought  to  have  ob- 
tained an  acquittal."  (File  26251--6020:11, 
July  7,  1913.) 


[ARTICLE  VII.] 

[Jury  trial  in  suits  at  common  law.]  In  suits  at  common  law,  where  the 
value  in  controversy  shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved,  and  no  fact  tried  by  a  jury,  shall  be  otherwise  reexamined  in 
any  Court  of  the  United  States,  than  according  to  the  rules  of  the  common  law. 


133 


Eighth  Amendment. 


ri.  1.   THE  CONSTITUTION. 


Punishments. 


[AKTICLE  VIII.] 

[Excessive  bail  or  fines  and  cruel  punishments  prohibited.]  Excessive  bail 
shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel  and  unusual  punish- 
ments inflicted. 


Cruel   and  unusual   punishments. — The 

imposition  of  a  hea\ier  punislunent  for  a  second 
offense  is  not  prohibited  by  tliis  article.  (Mc- 
Donald V.  Massachusetts,  180  U.  S.,  311.) 

"  runishments  are  cruel  when  they  inA'olve 
torture  or  a  lingering  death;  but  the  punish- 
ment of  death  is  not  cruel  within  the  meaning 
of  that  word  as  used  in  the  Constitution.  It 
implies  something  inhuman  and  barbarous, 
something  more  than  the  mere  extinguishment 
of  hfe."  (Ex  parte  Kemmler,  136  U.  S.,  436. 
See  also  Wilkerson  v.  Utah,  99  U.  S.,  130,  hold- 
ing that  death  by  shooting  is  not  cruel  and  un- 
usual witliin  the  meaning  of  this  amendment.) 

"Infamous"  punishments  ■svathin  the  mean- 
ing of  the  fifth  amendment  "can  not  be  limited 
to  those  punishments  which  are  cruel  or  un- 
usual; because,  by  the  seventh  [eighth] 
amendment  of  the  Constitution,  'cruel  and 
unusual  punishments'  are  wholly  forbidden, 
and  can  not  therefore  be  lawfully  inflicted  even 
in  cases  of  con\ictions  upon  indictments  duly 
presented  by  a  grand  jury.  *  *  «•  WTiat 
punishments  may  be  considered  as  infamous 
may  be  affected  by  the  changes  of  public 
opinion  from  one  age  to  another.  In  former 
times,  being  put  in  the  stocks  was  not  consid- 
ered as  necessarily  infamous.  And  by  the  first 
judiciary  act  of  the  United  States,  whipping 
was  classed  with  moderate  fines  and  short  terms 
of  imprisonment  in  limiting  the  criminal  jiu-is- 
diction  of  the  district  coiu-ts  to  cases  'where  no 
other  punishment  than  wliipping,  not  exceed- 
ing thirty  stripes,  a  fine  not  exceeding  one  hun- 
dred dollars,  or  a  term  of  imprisonment  not  ex- 
ceeding six  months,  is  to  be  inflicted.'  *  *  * 
But  at  the  present  day  either  stocks  or  whipping 
might  be  thought  an  infamous  punishment. 
For  more  than  a  century,  imprisonment  at  hard 
labor  in  the  State  prison  or  penitentiary  or  other 
institution  has  been  considered  an  infamous 
punishment  in  England  and  America."  (Ex 
parte  Wilson,  114  U.  S.,  417.) 

"In  no  case  shall  punishment  by  flogging, 
or  by  branding,  marking,  or  tattooing  on  the 
body  be  adjudged  by  any  court-martial  or  be  in- 
flicted upon  any  person  in  the  Navy."  (Art. 
49,  A.  G.  N.,  sec.  1624,  E.  S.) 


"The  use  of  irons,  single  or  double^  as  a  form 
of  punishment  in  the  I'la  vy  of  the  Umted  States 
is  hereby  abolished,  except  for  the  purposes  of 
safe  cus-tody  or  when  part  of  the  sentence  im- 
posed by  a  general  court-martial."  (Act  May 
13, 1908,  35  Stat.,  132;  see  also  act  Feb.  16, 1909, 
sec.  8,  35  Stat.,  621.) 

"It  shall  be  the  duty  of  a  court-martial,  in  all 
cases  of  conviction,  to  adjudge  a  punishment 
adequate  to  the  nature  of  the  offense;  but  the 
members  thereof  may  recommend  the  person 
con\dcted  as  deserving  of  clemency,  and  state, 
on  the  record,  their  reasons  for  so  doing. ' '  (Art. 
51,  A.  G.  N.,sec.  1624,  R.  S.) 

"In  interpreting  the  eighth  amendment  it 
will  be  regarded  as  a  precept  of  justice  that 
punishment  for  crime  should  be  graduated  and 
proportioned  to  the  offense.  *  *  *  "What 
constitutes  a  cruel  and  unusual  punishment 
prohibited  by  the  eighth  amendment  has  not 
been  exactly  defined  and  no  case  has  heretofore 
occurred  in  this  court  calling  for  an  exhaustive 
definition.  *  *  *  The  eighth  amendment 
is  progressive  and  does  not  prohibit  merely  the 
cruel  and  unusual  punishments  known  in  1689 
and  1787,  but  may  acqiure  wider  meaning  as 
public  opinion  becomes  enlightened  by  humane 
justice;  and  a  similar  provision  in  the  PhiUppine 
bill  of  rights  applies  to  long-continued  imprison- 
ment with  accessories  disproportionate  to  the 
offense."     (Weems  v.  U.  S.,  217  U.  S.,  349.) 

"In  determining  whether  a  punishment  is 
cruel  and  unusual  as  fixed  by  the  Pliilippine 
Commission,  tliis  court  will  consider  the  punish- 
ment of  the  same  or  similar  crimes  in  other  parts 
of  the  United  States,  as  exhibiting  the  differ- 
ence between  power  unrestrained  and  that  ex- 
ercised under  the  spirit  of  constitutional  limita- 
tions formed  to  establish  justice."  (Weems  v. 
U.  S.,  217  U.  S.,  349.) 

"Where  the  minimum  sentence  wliich  the 
coiu*t  might  impose  is  cruel  and  unusual  within 
the  prohibition  of  a  bill  of  rights,  the  fault  is  in 
the  law  and  not  in  the  sentence,  and  if  there  is 
no  other  law  under  which  sentence  can  be  im- 
posed, it  is  the  duty  of  the  court  to  declare 
the  law  void."  (Weems  v.  U.  S.,  217  U.  S., 
349.) 


[ARTICLE  IX.] 

[Rights  reserved  to  the  people.]  The  enumeration  in  the  Constitution,  of 
certain  rights,  shall  not  be  construed  to  deny  or  disparage  others  retained  by 
the  people. 

[ARTICLE  X.] 

[Powers  reserved  to  the  States.]  The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively,  or  to  the  people. 


134 


Involuntary  Servitude.  Ft.  1.   THE  CONSTITUTION.  Thirteenth  Amendment. 

ARTICLE  XI. 

[limitations  upon  judicial  powers.]  The  Judicial  power  of  the  United 
States  shall  not  be  construed  to  extend  to  any  suit  in  law  or  equity,  commenced 
or  prosecuted  against  one  of  the  United  States  by  Citizens  of  another  State,  or 
by  Citizens  or  Subjects  of  any  Foreign  State. 

ARTICLE  XII. 

[Election  of  President  and  Vice-President.]  The  Electors  shall  meet  in 
their  respective  states  and  vote  by  ballot  for  President  and  Vice-President,  one 
of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same  state  with  themselves; 
they  shall  name  in  their  ballots  the  person  voted  for  as  President,  and  in  dis- 
tinct ballots  the  person  voted  for  as  Vice-President,  and  they  shall  make  dis- 
tinct lists  of  all  persons  voted  for  as  President,  and  of  all  persons  voted  for  as 
Vice-President,  and  of  the  number  of  votes  for  each,  which  lists  they  shall 
sign  and  certify,  and  transmit  sealed  to  the  seat  of  the  government  of  the 
United  States,  directed  to  the  President  of  the  Senate; — The  President  of  the 
Senate  shall,  in  presence  of  the  Senate  and  House  of  Representatives,  open  all 
the  certificates  and  the  votes  shall  then  be  counted  ;^The  person  having  the 
greatest  number  of  votes  for  President,  shall  be  the  President,  if  such  number 
be  a  majority  of  the  whole  number  of  Electors  appointed;  and  if  no  person 
have  such  majority,  then  from  the  persons  having  the  highest  numbers  not 
exceeding  three  on  the  list  of  those  voted  for  as  President,  the  House  of  Rep- 
resentatives shall  choose  immediately,  by  ballot,  the  President.  But  in  choos- 
ing the  President,  the  votes  shall  be  taken  by  states,  the  representation  from 
each  state  having  one  vote;  a  quorum  for  this  purpose  shall  consist  of  a  mem- 
ber or  members  from  two-thirds  of  tlie  states,  and  a  majority  of  all  the  states 
shall  be  necessary  to  a  choice.  And  if  the  House  of  Representatives  shall  not 
choose  a  President  whenever  the  right  of  choice  shall  devolve  upon  them, 
before  the  fourth  day  of  March  next  following,  then  the  Vice-President  shaU  act  as 
President,  as  in  the  case  of  the  death  or  other  constitutional  disability  of  the 
President. — The  person  having  the  greatest  number  of  votes  as  Vice-President, 
shaU  be  the  Vice-President,  if  such  number  be  a  majority  of  the  whole  number 
of  Electors  appointed,  and  if  no  person  have  a  majority,  then  from  the  two 
highest  numbers  on  the  fist,  the  Senate  shall  choose  the  Vice-President;  a 
quorum  for  the  purpose  shall  consist  of  two-thirds  of  the  whole  number  of  Sen- 
ators, and  a  majority  of  the  whole  number  shall  be  necessary  to  a  choice.  But 
no  person  constitutionally  inehgible  to  the  office  of  President  shall  be  eligible 
to  that  of  Vice-President  of  the  United  States. 

ARTICLE   XIII. 

Section  1.  [Slavery  and  involuntary  servitude  prohibited.]  Neither  slavery 
nor  involuntary  servitude,  except  as  a  punishment  for  crime  whereof  the  party 
shall  have  been  duly  convicted,  shall  exist  within  the  United  States,  or  any 
place  subject  to  their  jurisdiction. 


135 


Fourteenth  Amendment.        Ft.  1.  TEE  CONSTITUTION. 


Citizenship. 


Section  2.  [Power  of  Congress.]  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 


Involuntary  servitude. — "It  is  clear 
*  *  *  tliat  theauumdiiK'Utwasnotiuteiided 
to  introduce  any  novel  doctrine  \vith  respect 
to  certain  descriptions  of  ser\dce  wliich  have 
always  been  treated  as  exceptions — such  as 
military  and  na^■al  enUstments — or  to  the  right 
of  parents  and  guardians  as  to  their  minor 
children  or  wards.  The  amendment,  however, 
makes  no  distinction  between  a  pubUc  and  a 
pri\-ate  service.  To  say  that  persons  engaged 
in  a  pubUc  serAdce  are  not  Avithin  the  amend- 
ment is  to  admit  that  tliere  are  exceptions  to 
its  genera]  language,  and  the  fiuther  question 
is  at  once  presented.  Where  shall  the  liixe  be 
dra\vn?  We  know  of  no  better  answer  to  make 
than  to  say  that  services  which  havefrom  time 
immemorial  been  treated  as  exceptional  shall 
not  be  regarded  as  within  its  piuview.  From 
the  earliest  historical  period  the  contract  of  the 
sailor  has  been  treated  as  an  exceptional  one 
and  involving  to  a  certain  extent  the  siurender 
of  his  personal  hberty  during  the  life  of  the  con- 
tract." (Robertson  v.  Baldwin,  165  U.  S., 
275;  see  also  Butler  v.  Perry,  240  U.  S., 
328.) 

"Does  the  epithet  'involuntary'  attach  to 
the  word  'servitude'  continuously,  and  make 
illegal  any  service  which  becomes  involuntary 
at  any  tune  during  its  existence;  or  does  it 
attach  only  at  the  inception  of  the  sei-vitude, 
and  characterize  it  as  unlawful  because  un- 
lawfully entered  into?  If  the  former  be  the 
true  construction,  then  no  one,  not  even  a 
soldier,  sailor,  or  apprentice  can  smrender  his 
liberty  even  for  a  day;  and  the  soldier  may 
desert  his  regiment  upon  the  eve  of  battle  and 
the  sailor  abandon  his  sliip  at  any  intermediate 
port  or  landing,  or  even  in  a  storm  at  sea,  pro- 
vided only  he  can  find  means  of  escaping  to 
another  vessel.  If  the  latter,  then  an  individ- 
ual may,  for  a  valuable  consideration,  contract 
for  the  surrender  of  his  personal  hberty  for  a 
definite  time  and  for  a  recognized  purpose,  and 
subordinate  his  going  and  coming  to  the  will 
of  another  during  the  continuance  of  the  con- 
tract. *  *  *  Not  that  all  such  contracts 
would  be  lawful,  but  that  a  service  which  was 
knowingly  and  willfully  entered  into  could 
not  be  termed  involuntary.  Thus  if  one  should 
agree,  for  a  yearly  wage,  to  serve  another  in  a 
particular  capacity  during  his  hfe,  and  never 
to  leave  liis  estate  without  his  consent,  the 
contract  might  not  be  enforceable  for  the  want 


of  a  legal  remedy,  or  might  be  void  upon  the 
grounds  of  public  policy,  but  the  servitude 
could  not  be  properly  termed  involuntaiy. 
Such  agreements  for  a  limited  personal  servi- 
tude at  one  time  were  very  common  in  England, 
and  by  statute  *  *  *  it  was  enacted  that 
if  any  servant  in  husbandry  or  any  artificer, 
caUco  printer,  hands-crafteman,  miner,  collier, 
keelman,  pitman,  glassman,  potter,  laborer, 
or  other  person  should  contract  to  serve  another 
for  a  definite  time  and  should  desert  such 
service  during  the  term  of  the  contract  he  was 
made  Uable  to  a  criminal  punishment.  The 
breach  of  a  contract  for  personal  serAice  has 
not,  however,  been  recognized  in  tliis  country 
as  involving  a  habiUty  to  criminal  punishment 
except  in  the  cases  of  soldiers,  sailors,  and 
possibly  some  others,  nor  would  public  opinion 
tolerate  a  statute  to  that  effect.  But  we  are 
also  of  opinion  that,  even  if  the  contract  of  a 
seaman  could  be  considered  Avitliin  the  letter 
of  the  thirteenth  amendment,  it  is  not,  witliin 
its  spirit,  a  case  of  involuntarv  ser\dtude." 
(Robertson  v.  Baldwin,  165  U.  S.",  275.) 

The  Supreme  Court  is  unable  to  conceive 
upon  what  theory  the  exaction  by  government 
from  the  citizen  of  the  performance  of  his 
supreme  and  noble  duty  of  contributing  to  the 
defense  of  the  rights  and  honor  of  the  nation,  as 
the  result  of  a  war  declared  by  the  great  repre- 
sentative body  of  the  people  can  be  said  to  be 
the  imposition  of  involuntary  servitude  in 
violation  of  the  proMbitions  of  the  Thirteenth 
Amendment,  and  is  constrained  to  the  con- 
clusion that  the  contention  to  that  effect  is 
refuted  by  its  mere  statement.  (Selection 
Draft  Law  Cases,  245  U.  S.,  366.) 

A  person  in  the  miUtary  or  naval  service, 
whether  an  officer  or  a  private,  is  always  more 
or  less  subject  in  his  movements,  by  the  very 
necessity  of  miUtary  rule  and  subordination, 
to  the  orders  of  his  superior  officer;  and  unless 
it  is  clear  that  some  unusual  restraint  upon  his 
liberty  of  personal  movement  exists  he  can  not 
claim  that  he  is  unlawfully  deprived  of  his 
hberty;  "otherwise  every  order  of  the  superior 
officer  directing  the  movements  of  his  subor- 
dinate, which  necessarily  to  some  extent  cur- 
tails his  freedom  of  will,  may  be  held  to  be  a 
restraint  of  his  liberty,  and  the  party  so  ordered 
may  seek  reUef  from  obedience  by  means  of  a 
writ  of  habeas  corpus."  (Wales  v,  Whitney, 
114  U.  S.,  564.) 


ARTICLE  XIV. 

Section  1.  [Citizenship;  privileges  and  immunities  of  citizens.]  All  persons 
bom  or  naturaUzed  in  the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein  they  reside.  No 
State  shall  make  or  enforce  any  law  which  shall  abridge  the  privileges  or  immuni- 
ties of  citizens  of  the  United  States;  nor  shall  any  State  deprive  any  person 


136 


Citizenship. 


PL  1.   THE  CONSTITUTION. 


Fourteenth  Amendment. 


of  life,  liberty,  or  property,  without  due  process  of  law ;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws. 


Citizenship. — "There  can  not  be  a  nation 
without  a  people.  The  very  idea  of  a  poUtical 
community,  such  as  a  nation  is,  impUes  an 
association  of  persons  for  the  promotion  of 
their  general  welfare.  Each  one  of  the  persons 
associated  becomes  a  member  of  the  nation 
formed  by  the  association.  He  owes  it  alle- 
giance and  is  entitled  to  its  protection.  Alle- 
giance and  protection  are  in  this  connection 
reciprocal  obligations.  The  one  is  a  compen- 
sation for  the  other;  allegiance  for  protection 
and  protection  for  allegiance.  For  conven- 
ience it  has  been  found  necessary  to  give  a 
name  to  this  membership.  The  object  is  to 
designate  by  a  title  the  person  and  the  rela- 
tion he  bears  to  the  nation.  For  this  purpose 
the  words  'subject,'  'inhabitant,'  and  'citizen' 
have  been  used,  and  the  choice  between  them 
is  sometimes  made  to  depend  upon  the  form 
of  the  government.  Citizen  is  now  more 
commonly  employed,  however,  and  as  it  has 
been  considered  better  suited  to  the  descrip- 
tion of  one  living  under  a  republican  govern- 
ment, it  was  adopted  by  nearly  all  of  the 
States  upon  their  separation  from  Great  Britain 
and  was  afterwards  adopted  in  the  Articles  of 
Confederation  and  in  the  Constitution  of  the 
United  States.  When  used  in  this  sense,  it 
is  understood  as  conveying  the  idea  of  member- 
ship of  a  nation  and  nothing  more."  (Minor 
V.  Happersett,  21  Wall.,  162.) 

"As  appears  upon  the  face  of  the  amend- 
ment as  well  as  from  the  history  of  the  times, 
this  was  not  intended  to  impose  any  new 
restrictions  upon  citizenship  or  to  prevent 
any  persons  from  becoming  citizens  by  the 
fact  of  birth  within  the  United  States,  who 
would  thereby  have  become  citizens  accord- 
ing to  the  law  existing  before  its  adoption. 
It  is  declaratory  in  form  and  enabling  and 
extending  in  effect.  Its  main  purpose  doubt- 
less was,  as  has  been  often  recognized  by  this 
court  to  establish  the  citizenship  of  free  negroes, 
which  had  been  denied  in  the  opinion  deUv- 
ered  by  Chief  Justice  Taney  in  Dred  Scott  v. 
Sandford,  1857,  and  to  put  it  beyond  doubt 
that  all  blacks,  as  well  as  whites,  born  or 
naturalized  within  the  jurisdiction  of  the 
United  States,  are  citizens  of  the  United  States. 
*  *  *  But  the  opening  words,  'All  per- 
sons bom,'  are  general,  not  to  say  universal, 
restricted  only  by  place  and  jurisdiction  and 
not  by  color  or  race,  as  was  clearly  recognized 
in  all  the  opinions  delivered  in  the  Slaughter 
House  Cases  above  cited  [16  Wall.,  36].  "  (U.  S. 
V.  Wong  Kim  Ark,  169  U.  S.,  649.) 

This  amendment  "declares  that  persons  may 
be  citizens  of  the  United  States  without  regard 
to  the  citizenship  of  a  particular  State  *  *  * 
the  distinction  between  citizenship  of  the 
United  States  and  citizenship  of  a  State  is 
clearly  recognized  and  established.  Not  only 
may  a  man  be  a  citizen  of  the  United  States 
without  being  a  citizen  of  a  State,  but  an 
important  element  is  necessary  to  convert  the 
former  into  the  latter.  He  must  reside  within 
the  State  to  make  him  a  citizen  of  it,  but  it  is 


only  necessary  that  he  should  be  born  or 
naturalized  in  the  United  States  to  be  a  citi- 
zen of  the  Union.  It  is  quite  clear  then  that 
there  is  a  citizenship  of  the  United  States 
and  a  citizenship  of  a  State,  which  are  distinct 
from  each  other  and  which  depend  upon  differ- 
ent characteristics  or  circumstances  in  the 
individual."  (Slaughter  House  Cases,  16 
Wall.,  36.) 

Subject  to  jurisdiction  thereof. — "The 
real  object  of  the  fourteenth  amendment  of 
the  Constitution  in  qualifying  the  words,  'all 
persons  born  in  the  United  States,'  by  the 
addition,  'and  subject  to  the  jurisdiction 
thereof,'  would  appear  to  have  been  to  exclude 
by  thefewest  and  fittest  words  (besides  children 
of  members  of  the  Indian  tribes  standing  in 
peculiar  relation  to  the  National  Government, 
unknown  to  the  common  law),  the  two  classes 
of  cases — children  born  of  alien  enemies  in 
hostile  occupation  and  children  of  diplomatic 
representatives  of  a  foreign  State — both  of 
which,  as  has  already  been  shown  by  the  law 
of  England  and  by  our  own  law  from  the  time 
of  the  first  settlement  of  the  Enghsh  colonies 
in  America,  had  been  recognized  exceptions  to 
the  fundamental  rule  of  citizenship  by  birth 
within  the  country."  (U.  S.  v.  Wong  Kim 
Ark,  169  U.  S.,  649,  modifying  as  incorrect  a 
remark  in  Slaughter  House  Cases,  16  Wall.,  36, 
that  "the  phrase,  'subject  to  its  jurisdiction,' 
was  intended  to  exclude  from  its  operation 
children  of  ministers,  consuls,  and  citizens  or 
subjects  of  foreign  States  born  within  the 
United  States.") 

Indians. — "Indians  bom  within  the  terri- 
torial limits  of  the  United  States,  members  of 
and  owing  immediate  allegiance  to  one  of  the 
Indian  tribes  (an  alien  though  dependent 
power),  although  in  a  geographical  sense 
born  in  the  United  States,  are  no  more  'born 
in  the  United  States  and  subject  to  the  juris- 
diction thereof  within  the  meaning  of  the 
first  section  of  the  fourteenth  amendment, 
than  the  children  of  subjects  of  any  foreign 
government  born  within  the  domain  of  that 
government,  or  the  children  born  within  the 
United  States  of  ambassadors  or  other  public 
ministers  of  foreign  nations.  *  *  *  Such 
Indians,  then,  not  being  citizens  by  birth, 
can  only  become  citizens  in  the  second  way 
mentioned  in  the  fourteenth  amendment, 
by  being  naturalized  in  the  United  States, 
bv  or  under  some  treaty  or  statute."  (Elk  v. 
Wilkins,  112  U.  S.,  94;  file  9212-48,  Aug.  3, 
1914;  see  also,  as  to  status  of  Indians,  U.  S.  v. 
Hadley,  99  Fed.  Rep.,  437;  U.  S.  v.  Elm,  25 
Fed.  Cas.  No.  15048;  Matter  of  Heff,  197  U.  S., 
504;  7  Op.  Atty.  Gen.,  746;  McKay  v.  Camp- 
bell, 16  Fed.  Cas.  No.  8840;  U.  S.  v.  Wong 
Kim  Ark,  169  U.  S.,  680.) 

Special  pro\dsion  has  been  made  for  the 
naturalization  of  Indians  by  various  acts  of 
Congress.  Thiis  by  act  of  Febmary  8,  1887 
(24  Stat.,  390),  after  providing  for  the  allotment 
of  lands  in  Indian  reservations  to  any  Indian 
located  thereon,  it  was  provided  by  section  6, 


137 


Fourteenth  Amendment.         Ft.  1.   THE  CONSTITUTION. 


Citizenship. 


as  amended  l)y  act  of  March  3,  1901  (31  Stat., 
1447):  "That  upon  the  completion  of  said 
allotmcnta  and  the  patenting  of  the  lands  to 
said  allottees,  each  and  even'  membei'  of  the 
respective  bands  or  tribes  of  "Indians  to  whom 
allotments  have  been  ma<le  shall  have  the 
benefit  of  and  be  subject  to  the  laws,  both 
ciAnl  and  criminal,  of  the  State  or  Territory  in 
which  they  may  reside;  and  no  Territoiy  sliall 
pass  or  enforce  any  law  denying  any  such 
Indian  within  its  jurisdiction  the  equal  pro- 
tection of  the  law.  And  even,'  Indian  born 
within  the  territorial  limits  of  the  United 
States  to  whom  allotments  shall  have  been 
made  under  the  provisions  of  this  act,  or  under 
any  law  or  treaty,  and  everi'  Indian  born 
within  the  territorial  limits  of  the  United 
States  who  has  voluntarily  taken  up,  within 
said  limits,  his  residence  separate  and  apart 
from  any  tribe  of  Indians  therein,  and  has 
adopted  the  habits  of  civilized  life,  and  every 
Indian  in  Indian  Territory  is  hereby  declared 
to  be  a  citizen  of  the  United  States,  and  is 
entitled  to  all  the  rights,  pri\'ileges,  and 
immunities  of  such  citizens,  whether  said 
Indian  has  been  or  not,  by  birth  or  otherwise,  a 
member  of  any  tribe  of  Indians  within  the  terri- 
torial limits  of  the  United  States,  without  in 
any  manner  impairing  or  otherwise  affecting 
the  right  of  any  such  Indian  to  tribal  or  other 
property."  [The  words  in  italics  were  added 
by  the  amendatory  act  above  cited.  The 
original  act  provided  (section  8)  that  its  pro- 
visions should  not  extend  to  certain  tribes  of 
Indiana  in  the  Indian  Territory,  "nor  to  any 
of  the  reservations  of  the  Seneca  Nation  of 
New  York  Indians  in  the  State  of  New  York, 
nor  to  that  strip  of  territory  in  the  State 
of  Nebraska  adjoining  the  Sioux  Nation  on  the 
south  added  by  Executive  order."] 

By  act  of  May  8,  1906  (34  Stat.,  182),  section 
6  of  the  act  of  1887,  above  quoted,  was  amended 
to  read  as  follows:  "That  at  the  expiration  of 
the  trust  period  and  when  the  lands  have 
been  conveyed  to  the  Indians  by  patent  in 
fee,  as  provided  in  section  5  of  this  act,  then 
each  and  every  allottee  shall  have  the  benefit 
of  and  be  subject  to  the  laws,  both  civil  and 
criminal,  of  the  State  or  Territory  in  which 
they  may  reside;  and  no  Territory  shall  pass 
or  enforce  any  law  denying  any  such  Indian 
within  its  jurisdiction  the  equal  protection  of 
the  law.  And  every  Indian  born  within  the 
territorial  limits  of  the  United  States  to  whom 
allotments  shall  have  been  made  and  who 
has  received  a  patent  in  fee  simple  under  the 
provisions  of  this  act,  or  under  any  law  or 
treaty,  and  every  Indian  bom  within  the 
territorial  limits  of  the  United  States  who  has 
voluntarily  taken  up  within  said  limits  his 
residence  separate  and  apart  from  any  tribe 
of  Indians  therein,  and  has  adopted  the  habits 
of  civilized  life,  is  hereby  declared  to  be  a 
citizen  of  the  United  States,  and  is  entitled  to 
all  the  rights,  privileges,  and  immunities  of 
such  citizens,  whether  said  Indian  has  been 
or  not,  by  birth  or  otherwise,  a  member  of 
any  tribe  of  Indians  within  the  territorial 
limits  of  the  United  States  without  in  any 
manner  impairing  or  otherwise  affecting  the 
right  of  any  such   Indian  to  tribal  or  other 


property:  Provided,  That  the  Secretary  of 
the  Interior  may,  in  his  discretion,  and  he  is 
hereby  authorized,  whenever  he  shall  be 
satisfied  that  any  Indian  allottee  is  competent 
and  capable  of  managing  his  or  her  affairs  at 
any  time  to  cause  to  be  issued  to  such  allottee 
a  patent  in  fee  simple,  and  thereafter  all 
restrictions  as  to  sale,  incumbrance,  or  taxa- 
tion of  said  land  shall  be  removed  and  said 
land  shall  not  be  liable  to  the  satisfaction  of 
any  debt  contracted  prior  to  the  issuing  of 
such  patent:  Provided  further,  That  until  the 
issuance  of  fee-simple  patents  all  allottees  to 
whom  trust  patents  shall  hereafter  be  issued 
shall  be  subjected  to  the  exclusive  jurisdiction 
of  the  United  States:  And  provided  further, 
That  the  provisions  of  this  act  shall  not  extend 
to  any  Indians  in  the  Indian  Territory." 

By  section  1992,  Revised  Statutes,  it  was  pro- 
vided that,  "All  persons  born  in  the  United 
States  and  not  subject  to  any  foreign  power, 
excluding  Indians  not  taxed,  are  declared  to  be 
citizens  of  the  United  States." 

An  Indian  born  in  Indian  Territory,  and  who 
had  resided  in  Oklahoma  after  its  admission 
as  a  State,  was  held  to  be  a  citizen  of  the  United 
States  by  virtue  of  the  above  statutes,  and  ac- 
cordingly ehgible,  if  otherwise  quahlied,  for 
appointment  as  an  assistant  surgeon  in  the 
Medical  Reserve  Corps  of  the  Navy.  (File 
26252-99,  May,  1915.  In  this  case  the  Secre- 
tary of  the  Interior  reported:  "  Inasmuch  as  all 
allotments  to  members  of  the  Cherokee  Tribe 
have  been  completed  and  the  Cherokee  citizen- 
ship rolls  have  been  closed  as  of  March  4,  1907, 
it  appears  that  *  *  *  is  now  a  citizen  of 
the  United  States  and  of  the  State  of  Oklahoma, 
and  is  entitled  to  all  the  rights,  privileges  and 
immunities  of  such  citizens,  as  prescribed  by 
section  6  of  the  act  of  Congress  approved  Feb- 
ruary 8, 1887  (24  Stat.,  390),  as  amended  by  the 
act  of  Congress  approved  March  3, 1901  (31  Stat., 
1447).")  _ 

An  Indian  who  belonged  to  the  Seneca  Nation 
in  the  State  of  New  York  is  prima  facie  not  a 
citizen  of  the  United  States,  and  should  be  re- 
quired to  estabUsh  his  citizenship  by  satisfac- 
tory evidence  when  he  applies  for  enlistment 
in  "the  Navy.  Suggested,  however,  as  there  is 
no  law  making  citizenship  a  condition  prece- 
dent to  enlistment,  the  Navy  Department  is 
authorized  to  enUst  such  Indians,  regardless  of 
citizenship,  if  considered  desirable,  this  being 
a  matter  of  departmental  regulation.  (File 
9212-48,  Aug.  3,  1914,  citing,  as  to  status  of  New 
York  Indians,  Hatch  v.  Luckman,  118  N.  Y.  S. 
694,  affirmed,  140  N.  Y.  S.,  1123,  holding  that 
"the  Indians  of  this  State  do  not  possess  the 
rights  of  citizenship  and  are  regarded  as  wards 
of  the  State";  compare  18  Op.  Atty.  Gen.,  181.) 

Chinese. — A  person  of  the  Chinese  race, 
born  in  the  United  States  of  aUen  parents,  sub- 
ject to  the  jurisdiction  of  this  country,  is  a  citi- 
zen of  United  States  by  birth  without  regard  to 
whether  or  not  the  laws  permit  the  naturaUza- 
tion  of  persons  of  his  race.  "The  fourteenth 
amendment,  while  it  leaves  the  power  where  it 
was  before,  in  Congress,  to  regulate  naturaliza- 
tion, has  conferred  no  authority  upon  Congress 
to  restrict  the  effect  of  birth,  declared  by  the 
Constitution  to  constitute  a  sirfficient  and  com- 


138 


Citizenship. 


Pt.  1.  THE  CONSTITUTION. 


Fourteenth  Amendment. 


plete  right  to  citizenship.  No  one  doubts  that 
the  amendmejit,  as  soon  as  it  wai-  promulgated, 
appUed  to  persons  of  African  descent  born  in 
the  United  States,  wherever  the  birthplace  of 
their  parents  might  have  been;  and  yet,  for  two 
years  af  terwiwds,  there  was  no  statute  authorizhig 
persons  of  that  race  to  be  natiu'aUzed.  If  the 
omission  or  the  refusal  of  Congress  to  permit 
certain  classes  of  persons  to  be  made  citizens  by 
naturalization  could  be  allowed  the  effect  of 
correspondingly  restiictiug  the  classes  of  per- 
sons who  should  become  citizens  by  birth,  it 
would  be  in  the  power  of  Congress  at  any  time, 
by  striking  negroes  out  of  the  naturalization 
laws,  and  limiting  those  laws,  as  they  were 
foimerly  Umited,  to  white  persons  only,  to 
defeat  the  main  purpose  of  the  constitutional 
amendment."  (U.  S.  v.  Wong  Kim  Ark,  169 
U.  S.,_649.)_ 

"This  claim  of  American  citizenship  by  a 
person  of  Chinese  descent  is  one  wliich  can  be 
easily  fabricated,  and  wliich  if  fabricated  is 
very  difficult  to  be  disproved  by  the  Govern- 
ment. On  the  other  hand,  if  it  is  true  there  are 
generally  no  witnesses  who  can  prove  it  except 
Chinese  witnesses.  It  is  easy  to  decide  such 
cases  on  the  theory  that  all  such  claims  are 
false.  Probably  many  of  them  are  false,  but 
some  of  them  must  be  true,  for  there  must  be  a 
considerable  number  of  persons  of  Chinese 
descent  born  here  since  Chinese  immigration 
into  this  country  began."  (U.  S.  v.  Len  Jin, 
192  Fed.  Rep.,  580;  file  26252-68,  June  19,  1912; 
file  26252-100,  June  1,  1915.) 

"In  matters  of  this  kind  it  is  the  duty  of 
claimants  to  submit  the  best  possible  evidence. 
As  there  is  no  record  evidence,  the  next  best 
must  be  considered  instead.  That  should 
contain  the  affidavit  of  the  claimant,  setting 
forth  all  he  knows  of  his  early  Ufe;  where  he 
lives,  what  he  did  before  enhsting  in  the  Navy; 
all  about  his  parents,  if  he  knows  anything 
about  them;  when  they  came  to  this  country; 
what  business,  if  any,  his  father  engaged  in, 
particularly  whether  or  not  he  was  employed 
in  any  diplomatic  or  official  capacity  under 
the  Emperor;  when  his  parents  left,  and 
where  they  are  at  the  present  time;  whether 
he  himself  has  been  out  of  the  country,  and  if 
so,  when  and  Avhere,  and  how  long  a  time  he 
remained  away.  In  other  words,  a  detailed 
statement  of  facts  tending  to  support  liis  claim 
which  may  be  the  subject  of  an  independent 
investigation  as  to  their  truth."  (Comp.  Dec, 
May  27,  1914,  file  26252-84;  see  also,  file  26252- 
100,  June  1,  1915.) 

It  is  the  practice  of  the  Navy  Department,  in 
cases  of  this  character,  after  consideration  of 
affidavits  submitted  by  claimants,  to  refer  the 
papers  to  the  Department  of  Labor  with  request 
for  a  statement  of  such  pertinent  facts  as  it 
might  be  able  to  furnish.  Then  when  papers 
are  returned,  with  additional  information,  it  is 
usually  possible  to  determine  whether  the  evi- 
dence is  sufficient  to  establish  citizenship. 
(File  26252-100,  June  1,  1915.) 

Japanese. — An  alien  born  abroad  of  Japa- 
nese parents  is  not  eligible  to  become  a  natur- 
alized citizen  of  the  United  States;  and  where  a 
certificate  of  naturalization  was  issued  such 
alien  by  a  court  of   competent   jurisdiction, 


such  certificate    ia  null   and  void    and    does 
not  entitle  him  to  the  benefits  of  citizenship. 
(File  26252,  Apr.  9,  1908,  85  S.and  A.  Memo., 
622.) 

The  son  of  a  German  father  and  a  Japanese 
mother  is  not  a  "white  person"  within  the 
meaning  of  section  2169,  Revised  Stp.tutes,  and 
therefore  is  not  eligible  to  naturalization.  (In  re 
Young,  198  Fed.  Rep.,  714.) 

For  other  cases,  see  below,  ' '  Persona  who 
serve  in  the  Navy  or  Marine  Corps." 

Children  born  on  foreign  vessel,  although 
witliin  the  waters  of  the  United  States,  are  con- 
sidered as  born  in  the  country  to  which  the  ves- 
sel belongs,  and  not  witliin  the  jurisdiction  of 
the  United  States.  Accordingly,  they  are  not 
citizens  of  this  country  by  birth.  (In  re  Look 
Tin  Sing,  21  Fed.  Rep.,  906.) 

Citizenship  in  insular  possessions. — See 
note  to  Article  IV,  section  3,  clause  2. 

Children  born  abroad  of  citizen  parents 
"are  declared  to  be  citizens  of  the  United 
States;  but  the  rights  of  citizenship  shall  not 
descend  to  children  whose  fathers  never  re- 
sided in  the  United  States."  (Sec.  1993,  R.  S.) 
In  order  for  such  childi-en  to  receive  the  protec- 
tion of  the  Government,  if  they  continue  to  re- 
side outside  the  United  States,  they  are  "re- 
quired, upon  reaching  the  age  of  18  years,  to 
record  at  an  American  consulate  their  intention 
to  become  residents  and  remain  citizens  of  the 
United  States, ' '  and  ' '  to  take  the  oath  of  alle- 
giance to  the  United  States  upon  attaining  their 
majority."  (Act  Mar.  2,  1907,  sec.  6,  34  Stat., 
1229.) 

Children  bom  abroad  of  aUen  parents 
shall  be  deemed  citizens  of  the  United  States 
by  virtue  of  the  naturalization  of  or  resumption 
of  American  citizenslup  by  the  parent;  pro- 
vided such  naturalization  or  resumption  takes 
place  during  the  minority  of  such  children. 
The  citizensliip  of  such  children  shall  begin  at 
the  time  such  children  begin  to  reside  perma- 
nently in  the  United  States.  (Act  Mar.  2,  1907, 
sec.  5,  34  Stat.,  1229.) 

Alien  adopted  by  American  parents. — • 
See  file  3194-1,  October  17, 1906,  recommending 
that  rule  forbidding  the  employment  of  aliens 
at  navy  yards  be  suspended  in  this  case,  with- 
out deciding  question  of  citizenship. 

Stepchildren  bom  of  foreign  parents. — 
Should  a  minor's  stepfather  become  naturalized 
during  the  lifetime  of  said  minor's  mother,  the 
mother  would  become  a  citizen  as  the  result  of 
her  hu.sband'a  naturalization,  and  being  a  citi- 
zen, her  son  would  also  become  a  citizen.  But 
naturalization  of  the  stepfather  after  the  death 
of  the  mother  could  not  have  the  effect  to  make 
the  minor  child  a  citizen.  (Comp.  Dec,  June 
16,  1913,  148  S.  and  A.  Memo.  2656;  U.  S.  v. 
Rodgers,  144  Fed.  Rep.,  711;  U.  S.  v.  Keller, 
13  Fed.  Rep.,  82.) 

A  minor  son  is  not  made  a  citizen  by  virtue  of 
the  fact  that  his  stepfather  took  out  his  first 
citizenship  paper  prior  to  his  death.  (Comp. 
Dec,  June  26, 1913, 148  S.  and  A.  Memo.,  2674.) 

Any  woman  who  marries  a  citizen  of  the 
United  States,  and  who  mi^ht  herself  be  law- 
fully naturalized,  ia  deemed  a  citizen.     (Sec. 
1994,  R.    S.)     In  such  cases  the  woman  shall 
be  assumed  to  retain  her  American  citizenship 


54641°— 22- 


-10 


139 


Fourteenth  Amendment.       Ft.  1.   THE  CONSTITUTION. 


Citizenship. 


after  the  termination  of  the  marital  relation  if 
ehe  continues  to  reside  in  the  United  States,  un- 
less she  makes  formal  renunciation  thereof 
before  a  court  havinj];  jurisdiction  to  naturalize 
aliens,  or  if  she  resides  abroad  she  may  retain 
her  citizenship  by  registering  as  such  before  a 
United  States  consul  within  one  year  after  the 
termination  of  such  marital  relation.  (Act 
Mar.  2,  1907,  sec.  4,  34  Stat.,  1229.) 

Persons  who  serve  in  the  Navy  or  Marine 
Corps,  or  Coast  Guard,  or  on  board  of  any  ves- 
sel of  the  United  States  Government,  maybe 
naturalized  under  special  provisions  contained 
in  the  act  of  May  9,  1918  (40  Stat.,  542),  amend- 
ing the  general  naturalization  act  of  June  29, 
1906  (34  Stat.,  596).  Special  pro^^sions  as  to 
aliens  serving  \nth  Naval  Reserve  Force  are 
contained  in  act  of  May  22,  1917  (40  Stat.,  84). 

The  law  providing  specifically  for  natiu-aliza- 
tion  of  persons  who  have  served  as  enUsted  men 
of  the  Navy  or  ]\Iarine  Corps  does  not  extend  the 
right  of  natimiUzation  to  persons  who  are  ex- 
cluded by  section  21 69,  Revised  Statutes,  which 
is  hmited  to  "free  white  persons  and  to  aliens  of 
African  nati-\dty  and  to  persons  of  African  de- 
scent." That  section  of  the  Revised  Statutes 
has  not  been  repealed  by  subsequent  naturaU- 
zation  laws,  but  is  still  iii  effect.  Accordingly, 
"a  citizen  of  the  Pliilippine  Islands  who  ethno- 
logically  was  one-fourth  white  and  three- 
fourthsbrown  or  Malay  could  not  l^e  natural- 
ized," notvvithstanding  his  ser\'ice  in  the 
Navy.  (In  re  Alverto,  198  Fed.  Rep.,  688;  see, 
also,' In  re  Buntaro  Kumagai,  163  Fed.  Rep., 
922,  and  Bessho  v.  U.  S.,  178  Fed.  Rep.,  245, 
as  to  naturalization  of  Japanese;  but  see  con- 
tra, as  to  Filipinos,  27  Op.  Atty.  Gen.,  12;  In 
re  }»Ionico  Lopez,  C.  M.  O.  49,  1915,  p.  23,  and 
In  re  Engracio  Bawtista,  C.  M.  O.  72,  1917,  p. 
16.  The  act  of  May  9,  1918  (40  Stat.,  542),  spe- 
cifically provides  for  naturalization  of  Filipinos 
who  serve  in  the  Navy,  Marine  Corps,  or  Naval 
Auxiliary  Service. 

For  general  naturalization  law,  see  acts 
of  June  29,  1906  (34  Stat.,  596),  and  May  9, 
1918  (40  Stat.,  542). 

Forfeiture  of  citizenship. — "The  power  of 
naturalization  vested  in  Congress  by  the  Consti- 
tution, is  a  power  to  confer  citizenship,  not  a 
power  to  take  it  away.  'A  naturalized  citizen,' 
said  Chief  Justice  Marshall,  'becomes  a  member 
of  the  society,  possessing  all  the  rights  of  a  native 
citizen,  and  standing,  in  the  view  of  the  Consti- 
tution, on  the  footing  of  a  native.  The  Consti- 
tution does  not  authorize  Congress  to  enlarge  or 
abridge  those  rights.  The  simple  power  of  the 
national  legislature  is  to  prescribe  a  uniform 
rule  of  naturalization,  and  the  exercise  of  this 
power  exhausts  it,  so  far  as  respects  the  individ- 
ual *  *  *.'  Congress  having  no  power  to 
abridge  the  rights  conferred  by  the  Constitution 
upon  those  who  have  become  naturalized  citi- 
zens by  virtue  of  acta  of  Congress,  a  fortiori  [for 
stronger  reasons],  no  act  or  omission  of  Congress 
*  *  *  can  affect  citizenship  acquired  as  a 
birthright,  by  virtue  of  the  Constitution  itself, 
without  any  aid  of  legislation."  (U.  S.  v. 
Wong  Kim  Ark,  169  U.  S.,  649.) 

Persons  who  desert  from  the  military  or  naval 
service  in  time  of  war  are  deemed  to  have  vol- 


untarily relinquished  and  forfeited  their  rights 
of  citizenship,  as  well  as  their  right  to  become 
citizens;  and  such  deserters  shall  be  forever  in- 
capable of  exercising  any  rights  of  citizenship. 
The  same  penalties  apply  to  persons  who  leave 
the  jurisdiction  with  intent  to  avoid  the  draft. 
(Sees.  1996  and  1998,  R.  S.,  as  amended  by  act 
Aug.  22,  1912, 37  Stat.,  356.  As  to  constitution- 
ality of  this  enactment,  see  cases  noted  under 
Art.  I,  sec.  9,  clause  3.) 

Cancellation  of  certificate. — ^Mien  a  natu- 
ralized alien  takes  up  permanent  residence  in 
any  foreign  country  within  five  years  after  his 
naturalization,  in  the  absence  of  countervailing 
evidence,  it  shall  be  deemed  that  it  was  not  his 
intention  to  become  a  permanent  citizen  of  the 
United  States,  and  his  certificate  of  citizenship 
mav  be  canceled  as  fraudulent.     (Act  June  29, 

1906,  sec.  15,  34  Stat.,  601.) 
Expatriation. — The  right  of  expatriation  is 

expressly  recognized  by  section  1999,  Revised 
Statutes.  But  "no  American  citizen  shall  be 
allowed  to  expatriate  himself  when  this  coun- 
try is  at  war."  (Act  Mar.  2,  1907,  sec.  2,  34 
Stat.,  1228;  file  26252-105,  Aug.  30,  1916.) 

"Any  American  citizen  shall  be  deemed  to 
have  expatriated  himself  when  he  has  been 
naturalized  in  any  foreign  state  in  conformity 
with  its  laws,  or  when  he  has  taken  an  oath  of 
allegiance  to  anv  foreign  state."     (Act  Mar.  2, 

1907,  sec.  2,  34  Stat.,  1228.) 

"\Mien  any  naturaUzed  citizen  shall  have 
resided  for  two  years  in  the  foreign  state  from 
wliich  he  came,  or  for  five  years  in  any  other 
foreign  state,  it  shall  be  presumed  that  he  has 
ceased  to  be  an  American  citizen,  and  the  place 
of  his  general  abode  shall  be  deemed  his  place 
of  residence  during  said  years:  Provided,  how- 
ever, That  such  presumption  may  be  overcome 
on  the  presentation  of  satisfactory  evidence  to  a 
diplomatic  or  consulai*  officer  of  the  United 
States,  under  such  rules  and  regulations  as  the 
Department  of  State  mav  prescribe."  (Act 
Mar.  2,  1907,  sec.  2,  34  Stat.,  1228.) 

"Any  American  woman  who  marries  a 
foreigner  shall  take  the  nationaUty  of  her 
husband.  At  the  termination  of  the  marital 
relation  she  may  resume  her  American  citizen- 
ship, if  abroad,  by  registering  as  an  American 
citizen  within  one  year  with  a  consul  of  the 
United  States,  or  by  returning  to  reside  in  the 
United  States,  or,  if  residing  in  the  United 
States  at  the  termination  of  the  marital  rela- 
tion, by  continuing  to  reside  therein."  (Act 
Mar.  2,  1907,  sec.  3,  34  Stat.,  1228.) 

Repatriation  of  citizens  who  were  deemed 
to  have  expatriated  themselves  by  service  in 
foreign  armies  engaged  in  war  with  a  country 
with  which  the  United  States  was  also  at  war, 
was  provided  for  by  act  of  October  5,  1917  (40 
Stat.,  340). 

Right  to  vote  not  right  of  citizenship. — 
"Certainly,  if  the  courts  can  consider  any  ques- 
tion as  settled,  this  is  one.  For  nearly  ninety 
years  the  people  have  acted  upon  the  idea  that 
the  Constitution,  when  it  conferred  citizenship, 
did  not  necessarily  confer  the  right  of  suffrage." 
(Minor  v.  Happersett,  21  "Wall.,  162.  See  also 
U.  S.  v.  Reese,  92  U.  S.,  214.) 

"Sex  has  never  been  made  one  of  the  elements 
of  citizenship  in  the  United  States.     In  this 


140 


Suffrage.  Pt.  1.  THE  CONSTITUTION.  Fifteenth  Amendment. 


respect  men  have  never  had  an  advantage  over 
women.  The  same  laws  precisely  apply  to 
both.  The  fourteenth  amendment  did  not 
affect  the  citizenship  of  women  any  more  than 
it  did  of  men.  In  this  particular,  therefore,  the 
rights  of  Mrs.  Minor  do  not  depend  upon  the 
amendment.  She  has  always  been  a  citizen 
from  her  birth  and  entitled  to  all  the  privileges 
and  immunities  of  citizenship.  The  amend- 
ment proliibited  the  State,  of  which  she  is  a 
citizen,  from  abridging  any  of  her  privileges  and 
immunities  as  a  citizen  of  the  United  States; 
but  it  did  not  confer  citizenship  on  her.  That 
she  had  before  its  adoption.  *  *  *  The 
amendment  did  not  add  to  the  privileges  and 


immunities  of  a  citizen.  It  simply  furnished 
an  additional  guaranty  for  the  protection  of 
such  as  he  already  had.  No  new  voters  were 
necessarily  made  by  it.  Indirectly  it  may  have 
had  that  effect,  because  it  may  have  increased 
the  number  of  citizens  entitled  to  suffrage  under 
the  constitution  and  laws  of  the  States,  but  it 
operates  for  this  purpose,  if  at  all,  through  the 
States  and  the  State  laws,  and  not  directly  upon 
the  citizen.  It  is  clear,  therefore,  we  think, 
that  the  Constitution  has  not  added  the  right 
of  suffrage  to  the  privileges  and  immunities  of 
citizenship  as  they  existed  at  the  time  it  was 
adopted."  (Minor  v.  Happersett,  21  Wall., 
162.) 


Section  2.  [Apportionment  of  Representation.]  Representatives  shall  be 
apportioned  among  the  several  States  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  State,  excluding  IncUans  not 
taxed.  But  when  the  right  to  vote  at  any  election  for  the  choice  of  electors 
for  President  and  Vice-President  of  the  United  States,  Representatives  in 
Congress,  the  Executive  and  JucUcial  officers  of  a  State,  or  the  members  of  the 
Legislature  thereof,  is  denied  to  any  of  the  male  inhabitants  of  such  State, 
being  twenty-one  years  of  age,  and  citizens  of  the  United  States,  or  in  any  way 
abridged,  except  for  participation  in  rebellion,  or  other  crime,  the  basis  of 
representation  therein  shall  be  reduced  in  the  proportion  wliich  the  number  of 
such  male  citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty-one 
years  of  age  in  such  State. 

Section  3.  [Disabilities  resulting  from  disloyalty  of  officers.]  No  person 
shall  be  a  Senator  or  Representative  in  Congress,  or  elector  of  President  and 
Vice-President,  or  hold  any  office,  civil  or  military,  under  the  United  States,  or 
imder  any  State,  who,  having  previously  taken  an  oath,  as  a  member  of  Congress, 
or  as  an  officer  of  the  United  States,  or  as  a  member  of  any  State  legislature,  or 
as  an  executive  or  judicial  officer  of  any  State,  to  support  the  Constitution  of 
the  United  States,  shall  have  engaged  in  insurrection  or  rebellion  against  the 
same,  or  given  aid  or  comfort  to  the  enemies  thereof.  But  Congress  may  by  a 
vote  of  two-thirds  of  each  House,  remove  such  disability. 

Section  4.  [Validity  of  the  public  debt,  etc.]  The  validity  of  the  public 
debt  of  the  United  States,  authorized  by  law,  including  debts  incurred  for  pay- 
ment of  pensions  and  bounties  for  services  in  suppressing  insurrection  or 
rebellion,  shall  not  be  questioned.  But  neither  the  United  States  nor  any 
State  shall  assume  or  pay  any  debt  or  obligation  incurred  in  aid  of  insurrection 
or  rebellion  against  the  United  States,  or  any  claim  for  the  loss  or  emancipation 
of  any  slave;  but  all  such  debts,  obligations  and  claims  shall  be  held  illegal 
and  void. 

Section  5.  [Power  of  Congress.]  The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  tliis  article. 

ARTICLE  XV. 

Section  1.  [Suffrage  not  to  be  abridged  for  race,  color,  etc.]  The  right  of 
citizens  of  the  United  States  to  vote  shall  not  be  denied  or  abridged  by  the  United 
States  or  by  any  State  on  account  of  race,  color,  or  previous  condition  of 
servitude — 

141 


Nineteenth  Amendment.        Pt.  1.   THE  CONSTITUTION.  Woman  Suffrage. 

Section  2.  [Power  of  Congress.]  The  Congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation. 

ARTICLE  XVI. 

[Income  taxes.]  The  Congress  shall  liave  power  to  lay  and  collect  taxes  on 
incomes,  from  whatever  som-ce  derived,  without  apportionment  among  the 
several  States,  and  without  regard  to  any  census  or  enumeration. 

ARTICLE  XVII. 

[Clause  1.  Election  of  Senators.]  The  Senate  of  the  United  States  shall  be 
composed  of  two  Senators  from  each  State,  elected  by  the  people  thereof,  for 
six  vears;  and  each  Senator  shall  have  one  vote.  The  electors  in,  each  State 
shall  have  the  qualifications  requisite  for  electors  of  the  most  numerous  branch 
of  the  State  legislatures. 

[Clause  2.  Vacancies  in  Senate,  how  filled.]  -  Wlien  vacancies  happen  in 
the  representation  of  any  State  in  the  Senate,  the  executive  authority  of  such 
State  shall  issue  wiits  of  election  to  fiU  such  vacancies:  Provided,  That  the 
legislature  of  any  State  may  empower  the  executive  thereof  to  make  temporary 
appointment  until  the  people  fill  the  vacancies  by  election  as  the  legislature 
may  direct. 

[Clause  3.  Amendment  not  retroactive.]  ^  This  amendment  shall  not  be  so 
construed  as  to  affect  the  election  or  term  of  any  Senator  chosen  before  it 
becomes  valid  as  part  of  the  Constitution. 

ARTICLE  XVIII. 

Section  1 .  [Prohibition  of  intoxicating  liquors  for  beverage  purposes.]  After 
one  year  from  the  ratification  of  this  article  the  manufacture,  sale,  or  trans- 
portation of  intoxicating  liquors  within,  the  importation  thereof  into,  or  the 
exportation  tliereof  from  the  United  States  and  all  territory  subject  to  the 
jurisdiction  thereof  for  beverage  purposes  is  hereby  prohibited. 

Section  2.  [Power  of  Congress  and  States.]  The  Congress  and  the  several 
States  shall  have  concurrent  power  to  enforce  this  article  by  appropriate 
legislation. 

Section  3.  [Eatification  required  within  seven  years.]  This  article  shall  be 
inoperative  unless  it  shall  have  been  ratified  as  an  amendment  to  the  Consti- 
tution by  the  legislatures  of  the  several  States,  as  provided  in  the  Constitution 
within  seven  years  from  the  date  of  the  submission  hereof  to  the  States  by 
the  Congress. 

ARTICLE  XIX. 

Section  1.  [Woman  suffrage.]  The  right  of  citizens  of  the  United  States 

to  vote  shall  not  be  denied  or  abridged  by  the  United  States  or  by  any  State 
on  account  of  sex. 

Section  2.  [Power  of  Congress.]  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 


142 


ANALYTICAL  INDEX  TO  THE 

CONSTITUTION  OF  THE  UNITED  STATES 

AND  THE  AMENDMENTS  THERETO. 

(Reprinted  from  Revised  Statutes  of  the  United  States,  second  edition,  and  Senate  Document  No.  12,  Sixty-third  Con. 
gress,  first  session,  with  necessary  additions  to  include  eighteenth  and  nineteenth  amendments.] 


A. 


Arti-    Sec-    Clause, 
cle.     tion. 


ABRIDGED.     The  privileges  or  immunities  of  citizens  of  the  United  States 

shall  not  be.     [Amendments] 14 

ABSENT  ME]\IBERS,  in  such  manner  and  under  such  penalties  as  it  may 

pro\dde.     Each  House  is  authorized  to  compel  the  attendance  of 1 

ACCOUNTS  of  receipts  and  expenditures  of  public  money  shall  be  published  from 

time  to  time.     A  statement  of  the 1 

ACCUSATION.     In  all  criminal  prosecutions  the  accused  shall  be  informed  of 

the  cause  and  nature  of  the.     [Amendments] 6 

ACCUSED  shall  have  a  speedy  public  trial.     In  all  criminal  prosecutions  the. 

[Amendments] 6 

He  shall  be  tried  by  an  impartial  jury  of  the  State  and  district  where  the 

crime  was  committed .     [Amendments] 6 

He  shall  be  informed  of  the  nature  of  the  accusation.     [Amendments] 6 

He  shall  be  confronted  with  the  witnesses  against  him.     [Amendments] 6 

He  shall  have   compulsory  process  for  obtaining  witnesses  in  his  favor. 

[Amendments] 6 

He  shall  have  the  assistance  of  counsel  for  his  defense.     [Amendments] 6 

ACTIONS  at  common  law  involving  over  twenty  dollars  shall  be  tried  by  jury. 

[Amendments] 7 

ACTS,  records,  and  judicial  proceedings  of  another  State.    Full  faith  and  credit 

shall  be  given  in  each  State  to  the 4 

ACTS.     Congress  shall  prescribe  the  manner  of  proving  such  acts,  records,  and 

proceedings 4 

ADJOURN  from  day  to  day.    A  smaller  number  than  a  quorum  of  each  House 

may 1 

ADJOURN  for  more  than  three  days,  nor  to  any  other  place  than  that  in  which 
they  shall  be  sitting.  Neither  House  shall,  during  the  session  of  Con- 
gress, without  the  consent  of  the  other 1 

ADJOURNMENT,  the  President  may  adjourn  them  to  such  time  as  he  shall  think 

proper.     In  case  of  disagreement  between  the  two  Houses  as  to 2 

ADMIRALTY  and  maritime  jurisdiction.     The  judicial  power  shall  extend  to 

all  cases  of 3 

ADMITTED  by  the  Congress  into  this  Union,  but  no  new  State  shall  be  formed 

or  erected  within  the  jurisdiction  of  any  other  State.     New  States  may  be. .        4 
Nor  shall  any  State  be  formed  by  the  junction  of  two  or  more  States,  or  parts 
of  States,  Avithout  the  consent  of  the  legislatures  and  of  Congress 4 

ADOPTION  of  the  Constitution  shall  be  valid.  All  debts  and  engagements  con- 
tracted by  the  Confederation  and  before  the 6 

143 


Analytical  Index. 


Pt.  1.  THE  CONSTITUTION. 


Arti-    Sec-   p,an<!fi 
cle.     tion.  Clause. 


3 

1 

2 
3 

5 

5 

5 

5 

5 

3 
4 
5 
1 

2 
2 


2 
3 
1 


2 
3 

10 

3 

10 

2 
2 


ADVICE  and  consent  of  the  Senate.     The  President  shall  have  power  to  make 

treaties  by  and  with  the 2 

To  appoint  ambassadors  or  other  public  ministers  and  consuls  by  and  with 

the 2 

To  appoint  all  other  oflicers  of  the  United  States  not  herein  otherwise  pro- 
vided for  by  and  with  the 2 

AFFIRMATION.     Senators  sitting  to  try  impeachments  shall  be  on  oath  or 1 

To  be  taken  by  the  President  of  the  United  States.    Form  of  the  oath  or. . .        2 
No  warrants  shall  be  issued  but  upon  probable  cause  and  on  oath  or. 

[Amendments] 4 

To  support  the  Constitution.     Senators  and  Representatives,  members  of 
State  legislatures,  executive  and  judicial  officers,  both  State  and  Federal, 

shall  be  bound  by  oath  or 6 

AGE.    No  person  shall  be  a  Representative  who  shall  not  have  attained  twenty- 
five  years  of 1 

No  person  shall  be  a  Senator  who  shall  not  have  attained  thirty  years  of 1 

AGREEMENT  or  compact  with  another  State  without  the  consent  of  Congress. 

No  State  shall  enter  into  any 1 

AID  AND  COMFORT.    Treason  against  the  United  States  shall  consist  in 

lowing  war  against  them,  adhering  to  their  enemies,  and  giving  them 

ALLIANCE  or  confederation.     No  State  shall  enter  into  any  treaty  of 

AMBASSADORS,  or  other  public  ministers  and  consuls.     The  President  may 

appoint 

The  judicial  power  of  the  United  States  shall  extend  to  all  cases  affecting. . 
AMENDMENTS  TO  THE  CONSTITUTION.    Whenever  two-thirds  of  both 

Houses  shall  deem  it  necessary.  Congress  shaU  propose 

On  application  of  the  legislatures  of  two-thirds  of  the  States,  Congress  shaU 

call  a  convention  to  propose 

Shall  be  valid  when  ratified  by  the  legislatures  of,  or  by  conventions  in, 

three-fourths  of  the  States 

ANSWER  for  a  capital  or  infamous  crime  unless  on  presentment  of  a  grand  jury. 

No  person  shall  be  held  to.     [Amendments] 

Except  in  cases  in  the  land  or  naval  forces,  or  in  the  militia  when  in  actual 

service.    [Amendments] 

APPELLATE  JURISDICTION  both  as  to  law  and  fact,  with  such  exceptions  and 
under  such  regulations  as  Congress  shall  make.     In  what  oases  the  Supreme 

Court  shall  have 

APPLICATION  of  the  legislature  or  the  executive  of  a  State.    The  United  States 

shall  protect  each  State  against  invasion  and  domestic  violence  on  the — 

APPLICATION  of  the  legislatm-es  of  two-thirds  of  the  States,  Congress  shall  call 

a  convention  for  proposing  amendments  to  the  Constitution.    On  the. . . . 

APPOINTMENT  of  officers  and  authority  to  train  the  militia  reserved  to  the 

States  respectively 

Of  such  inferior  officers  as  they  may  think  proper  in  the  President  alone. 

Congress  may  by  law  vest  the 

APPOINTMENTS  in  the  courts  of  law  or  in  the  Jieads  of  Departments.     Congress 

may  by  law  vest  the 

APPORTIONMENT  of  representation  and  direct  taxation  among  the  several 
States.    Provisions  relating  to  the.     [Repealed  by  section  2  of  fourteenth 

amendment.] 1        2 

APPORTIONMENT.    Congress  shaU  have  power  to  lay  and  collect  taxes  on 
incomes,  from  whatever  source  derived,  without  apportionment  among  the 

several  States.    The  sixteenth  amendment.    [Amendments.] 16 

Of  Representatives  among  the  several  States.    Provisions  relating  to  the. 
[Amendments] 14        2 


2 
4 

8 
2 
2 


6 

7 


2 
3 


1 

1 

2 
1 


16 
2 
2 


144 


PL  1.  THE  CONSTITUTION.  Analytical  Index. 

Arti-    Sec-   niaiise 
cle.     tion.  *-ia,use. 

APPROPRIATE  LEGISLATION,  Congress  shall  have  power  to  make  all  laws 
necessary  and  proper  for  carrying  into  execution  the  foregoing  powers,  and 
all  other  powers  vested  by  the  Constitution  in  the  Government  of  the 

United  States,  or  in  any  department  or  officer  thereof 1        8        18 

Congress  shall  have  power  to  enforce  the  thirteenth  article,  prohibiting 

slavery,  by.    [Amendments] 13        2 

Congress  shall  have  power  to  enforce  the  pro\'isione  of  the  fourteenth  article 

by.     [Amendments] 14        5 

Congress  shall  have  power  to  enforce  the  provisions  of  the  fifteenth  article  by. 
[Amendments] 15        2 

APPROPRIATION  of  money  for  raising  and  supporting  armies  shall  be  for  a 

longer  term  than  two  years.     But  no 1        8        12 

APPROPRIATIONS  made  by  law.    No  money  shall  be  drawn  from  the  Treasiury 

but  in  consequence  of 1        9  7 

APPROVE  and  sign  a  bill  before  it  shaU  become  a  law.    The  President  shall...        17         2 
He  shall  return  it  to  the  House  in  which  it  originated,  with  his  objections,  if 
he  do  not 17  2 

ARMIES,  but  no  appropriation  for  that  use  shall  be  for  a  longer  term  than  two 

years.    Congress  shall  have  power  to  raise  and  support 1        8        12 

ARMIES.    Congress  shall  make  rules  for  the  government  and  regulation  of  the 

land  and  naval  forces 1        8        14 

ARMS  shall  not  be  infringed.  A  well-regulated  militia  being  necessary  to  the 
seciu-ity  of  a  free  State,  the  right  of  the  people  to  keep  and  bear.  [Amend- 
ments]          2 

ARREST  during  their  attendance  at  the  session  of  their  respective  Houses,  and 
in  going  to  and  returning  from  the  same.  Members  shall  in  all  cases, 
except  treason,  felony,  and  breach  of  the  peace,  be  privileged  from 1        6         1 

ARSENALS.  Congress  shall  exercise  exclusive  authority  over  all  places  pur- 
chased for  the  erection  of 1        8        17 

ARTICLES  exported  from  any  State.     No  tax  or  duty  shall  be  laid  on 19         5 

ARTS  by  securing  to  authors  and  inventors  their  patent  rights.    Congress  may 

promote  the  progress  of  science  and  the  useful 18  8 

ASSISTANCE  of  counsel  for  his  defense.  In  all  criminal  prosecutions  the  ac- 
cused shall  have  the.     [Amendments] 6 

ASSUMPTION  of  the  debt  or  obligations  incurred  in  aid  of  rebellion  or  insurrec- 
tion against  the  United  States.     Provisions  against  the.    [Amendments]..      14        4 

ATTAINDER  or  EX  POST  FACTO  law  shall  be  passed.    No  bill  of 19         3 

ATTAINDER,  EX  POST  FACTO  law,  or  law  impairing  the  obligation  of  con- 
tracts.    No  State  shall  pass  any  bill  of 1      10  1 

ATTAINDER  of  treason  shall  not  work  corruption  of  blood  or  forfeiture,  except 

during  the  life  of  the  person  attainted 3        3         2 

AUTHORS  and  inventors  the  exclusive  right  of  their  writings  and  inventions. 

Congress  shall  have  power  to  secure  to 1       8 

B. 

BAIL.    Excessive  bail  shall  not  be  required,  nor  excessive  fines  nor  cruel  and 

unusual  punishments  imposed.     [Amendments] 8 

BALLOT   for   President  and   Vice-President.      The   electors   shall   vote  by. 

[Amendments] 12 

BALLOT.  If  no  person  have  a  majority  of  the  electoral  votes  for  President  and 
Vice-President,  the  House  of  Representatives  shall  immediately  choose 
the  President  by.     [Amendments] 12 

BANKRUPTCIES.  Congress  shall  have  power  to  pass  imiform  laws  on  the  sub- 
ject of 18  4 


145 


Analytical  Index.  Ft.  1.   TUB  CONSTITUTION. 


Arti-     Sec-  ^, 
cle.      tion.  ^^a^®- 


BASIS  of  representation  among  the  several  States.     Provisions  relating  to  the. 

[Amendments] 14        2 

BEAR  ARMS  shall  not  be  infringed.  A  well-regulated  militia  being  neces- 
sary to  the  security  of  a  free  State,  the  right  of  the  people  to  keep  and. 
[Amendments] 2 

BEHAVIOR.    The  judges  of  the  Supreme  and  inferior  courts  shall  hold  their 

offices  during  good 3        1 

BILL  OF  ATTAINDER  or  EX  POST  FACTO  law  shall  be  passed.     No 1        9  3 

BILL  OF  ATTAINDER,  EX  POST  FACTO  law,  or  law  impairing  the  obUga- 

tion  of  contracts.     No  State  shall  pass  any 1      lO  1 

BILLS  of  credit      No  State  shall  emit 1      10  1 

BILLS   for  raising  revenue  shall  originate  in  the  House  of  Representatives.     All.         1        7  1 

BILLS   which  have  passed  the  Senate  and  House  of  Representatives  shall,  before 

they  become  laws,  be  presented  to  the  President 1        7  2 

If  he  approve,  he  shall  sign  them;  if  he  disapprove,  he  shall  return  them, 
with  his  objections,  to  that  House  in  which  they  originated 1        7  2 

BILLS.  Upon  the  reconsideration  of  a  bill  returned  by  the  President,  with  his 
objections,  if  two-thirds  of  each  House  agree  to  pass  the  same,  it  shall  be- 
come a  law 1        7  2 

Upon  the  reconsideration  of  a  bill  returned  by  the  President,  the  question 

shall  be  taken  by  yeas  and  nays 17  2 

Not  retiu-ned  by  the  President  within  ten  days  (Sundays  excepted),  shall, 
unless  Congress  adjourn,  become  laws 17  2 

BORROW  money  on  the  credit  of  the  United  States.     Congress   shall  have 

power  to 18  2 

BOUNTIES  and  pensions,  shall  not  be  questioned.  The  validity  of  the  public 
debt  incurred  in  suppressing  insurrection  and  rebellion  against  the  United 
States,  including  the  debt  for.     [Amendments] 14        4 

BREACH  of  the  peace,  shall  be  privileged  from  arrest  while  attending  the  ses- 
sion, and  in  going  to  and  returning  from  the  same.  Senators  and  Repre- 
sentatives, except  for  treason,  felony,  and 16  1 

BRIBERY,  or  other  high  crimes  and  misdemeanors.  The  President,  Vice- 
President,  and  all  civil  officers  shall  be  removed  on  impeachment  for  and 
conviction  of  treason 2        4 

C. 

CAPITAL  or  otherwise  infamous  crime,  unless  on  indictment  of  a  grand  jury, 

except  in  certain  specified  cases.     No  person  shall  be  held  to  answer  for  a. 

[Amendments] 5 

CAPITATION   or  other  direct  tax  shall  be  laid  unless  in  proportion  to  the  census 

or  enumeration.     [See  sixteenth  amendment]     No 1        9  4 

CAPTURES  on  land  and  water.     Congress  shall  make  rules  concerning 1        8        11 

CASTING  VOTE.    The  Vice-President  shall  have  no  vote  unless  the  Senate  be 

equally  di\'ided 1        3  4 

CENSUS  or  enumeration  of  the  inhabitants  shall  be  made  within  three  years 

after  the  first  meeting  of  Congress,  and  within  every  subsequent  term  of 

ten  years  thereafter 1        2  3 

CENSUS  or  enumeration.     No  capitation  or  other  direct  tax  shall  be  laid  except 

in  proportion  to  the.     [See  sixteenth  amendment] 1        9  4 

CHIEF  JUSTICE  shall  preside  when  the  President  of  the  United  States  is  tried 

upon  impeachment.     The 1        3  6 

CHOOSING  the  electors  and  the  day  on  which  they  shall  give  their  votes,  which 

shall  be  the  same  throughout  the  United  States.     Congress  may  determine 

the  time  of 2        1  3 


146 


Pt.l.  THE  CONSTITUTION.  Analytical  Index. 

Arti-     Sec-  p, 
cle.     tion.  ^'^"^6. 

CITIZEN  of  the  United  States  at  the  adoption  of  the  Constitution  shall  be  eligi- 
ble to  the  office  of  President.     No  person  not  a  natural  born 2         14 

CITIZEN   of  the  United  States.     No  person  shall  be  a  Senator  who  shall  not  have 

attained  the  age  of  thirty  years  and  been  nine  years  a 13  3 

No  person  shall  be  a  Representative  who  shall  not  have  attained  the  age  of 
twenty-five  years  and  been  seven  years  a 1        2  2 

CITIZENSHIP.     Citizens  of  each  State  shall  be  entitled  to  all  the  privileges  and 

immunities  of  citizens  of  the  several  States 4        2  1 

All  persons  born  or  naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of  the  State  in  which 

they  reside.     [Amendments] 14        1 

No  State  shall  make  or  enforce  any  law  which  shall  abridge  the  privileges  or 

immunities  of  citizens  of  the  United  States.     [Amendments] 14        1 

Nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property  without 

due  process  of  law.     [Amendments] 14        1 

Nor  deny  to  any  person  within  its  jiu-isdiction  the  equal  protection  of  the 
laws.     [Amendments] 14        1 

CITIZENS  OR  SUBJECTS  of  a  foreign  state.  The  judicial  power  of  the  United 
States  shall  not  extend  to  suits  in  law  or  equity  brought  against  one  of  the 
States  by  the  citizens  of  another  State,  or  by.     [Amendments] 11 

CIVIL  OFFICERS  of  the  United  States  shall,  on  impeachment  for  and  conviction 
of  treason,  bribery,  and  other  high  crimes  and  misdemeanors,  be  removed. 
All 2        4 

CIjAIMS  of  the  United  States  or  any  particular  State  in  the  Territory  or  public 

property.     Nothing  in  this  Constitution  shall  be  construed  to  prejudice.  .         4        3  2 

CLASSIFICATION  OF  SENATORS.  Immediately  after  they  shall  be  assem- 
bled after  the  first  election,  they  shall  be  divided  as  equally  as  may  be  into 

three  classes 13  2 

The  seats  of  the  Senators  of  the  first  class  shall  be  vacated  at  the  expiration 

of  the  second  year 13  2 

The  seats  of  the  Senators  of  the  second  class  at  the  expiration  of  the  foiuth 

year 13  2 

The  seats  of  the  Senators  of  the  tliird  class  at  the  expiration  of  the  sixth  year.         13  2 

COIN  a  tender  in  payment  of  debts.     No  State  shall  make  anything  but  gold  and 

silver 1      10  1 

COIN  money  and  regulate  the  value  thereof  and  of  foreign  coin.     Congress  shall 

have  power  to 1        8  5 

COIN  of  the  United  States.  Congress  shall  provide  for  punishing  the  counter- 
feiting the  securities  and  current 1        8  6 

COLOR,  or  previous  condition  of  ser\dtude.  The  right  of  citizens  of  the  United 
States  to  vote  shall  not  be  denied  or  abridged  by  the  United  States  or  by 
any  State  on  account  of  race.     [Amendments] 15        1 

COMFORT.     Treason  against  the  United  States  shall  consist  in  levying  war 

against  them,  and  giving  their  enemies  aid  and 3        3  1 

COMMANDER  IN  CHIEF  of  the  Army  and  Navy,  and  of  the  militia  when  in 

actual  ser\dce.    The  President  shall  be 2        2  1 

COMMERCE  with  foreign  nations,  among  the  States,  and  with  Indian  tribes. 

Congress  shall  have  power  to  regulate 1        8  3 

COMMERCE  OR  REVENUE.     No  preference  shall  be  given  to  the  ports  of  one 

State  over  those  of  another  by  any  regulation  of 19  6 

Vessels  clearing  from  the  ports  of  one  State  shall  not  pay  duties  in  those  of 

another 19  6 

COMMISSIONS  to  expire  at  the  end  of  the  next  session.     The  President  may 

fill  vacancies  that  happen  in  the  recess  of  the  Senate  by  granting 2        2  3 

COMMON  DEFENSE,  promote  the  general  welfare,  etc.  To  insure  the.  [Pre- 
amble.] 

147 


Analjrtical  Index.  Pt.  1.  THE  CONSTITUTION. 


Arti-    Sec-  p, 
cle.     tion.  ^'^use. 


COMMON  DEFENSE  and  general  welfare.     Congress  shall  have  power  to  provide 

for  the 18  1 

COMMON  LAW,  where  the  amount  involved  exceeds  twenty  dollars,  shall  be 

tried  by  jury.     Suits  at.     [Amendments] 7 

No  fact  tried  by  a  jury  shall  bo  otherwise  reexamined  in  any  coiut  of  the 

United  States  than  according  to  the  rules  of  the.     [Amendments].... 7 

COMPACT  with  another  State.    No  State  shall,  without  the  consent  of  Congress, 

enter  into  any  agreement  or 1      lo  3 

COMPACT  with  a  foreign  power.     No  State  shall,  without  the  consent  of  Con- 
gress, enter  into  any  agreement  or 1       10  3 

COMPENSATION  of  Senators  and  Representatives  to  be  ascertained  by  law. . .        16  1 

COMPENSATION  of  the  President  shall  not  be  increased  nor  diminished  during 

the  period  for  which  he  shall  be  elected 2        1  6 

COMPENSATION  of  the  judges  of  the  Supreme  and  inferior  coiuls  shall  not  be 

diminished  during  their  continuance  in  office 3        1 

COMPENSATION.     Private  property  shaU  not  be  taken  for  public  use  without 

just.     [Amendments] 5 

COMPULSORY  PROCESS  for  obtaining  witnesses  in  his  favor.     In  criminal 

prosecutions  the  accused  shall  have.     [Amendments] 6 

CONFEDERATION.     No  State  shall  enter  into  any  treaty,  alUance,  or 1      10  1 

CONFEDERATION.     All  debts  contracted  and  engagements  entered  into  before 
the  adoption  of  this  Constitution  shall  be  as  valid  against  the  United  States 

under  it  as  under  the 6       ..  1 

CONFESSION  in  open  court.     Conviction  of  treason  shaU  be  on  the  testimony 

of  two  persons  to  the  overt  act,  or  upon 3        3  1 

CONGRESS  of  the  United  States.    All  legislative  powers  shall  be  vested  in  a. .        1        1 

Shall  consist  of  a  Senate  and  House  of  Representatives 1        1 

Shall  assemble  at  least  once  in  every  year,  wliich  shall  be  on  the  first  Mon- 
day of  December,  unless  they  by  law  appoint  a  different  day 1        4  2 

May  at  any  time  alter  regulations  for  elections  of  Senators  and  Representa- 
tives, except  as  to  the  places  of  choosing  Senators 14  1 

Each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of 

its  own  members 1        5  1 

A  majority  of  each  House  shall  constitute  a  quorum  to  do  business 15  1 

A  smaller  number  may  adjourn  from  day  to  day  and  may  be  authorized  to 

compel  the  attendance  of  absent  members 1        5  1 

Each  House  may  determine  the  rules  of  its  proceedings,  punish  its  members 
for  disorderly  behavior,  and,  with  the  concurrence  of  two-thirds,  expel  a 

member 15  2 

Each  House  shall  keep  a  journal  of  its  proceedings 1        5  3 

Neither  House,  during  the  session  of  Congress,  shall,  without  the  consent  of 

the  other,  adjourn  for  more  than  three  days 1        5  4 

Senators  and  Representatives  shall  receive  a  compensation  to  be  ascertained 

bylaw 16  1 

They  shall  in  all  cases,  except  treason,  felony,  and  breach  of  the  peace,  be 
privileged  from  arrest  during  attendance  at  their  respective  Houses,  and 

in  going  to  and  returning  from  the  same 1        6  1 

No  Senator  or  Representative  shall,  during  his  term,  be  appointed  to  any 
civil  office  which  shall  have  been  created,  or  of  which  the  emoluments 

shall  have  been  increased  during  such  term 16  2 

No  person  holding  any  oflace  under  the  United  States  shall,  while  in  office,  be 

a  member  of  either  House  of  Congress 16  2 

All  bills  for  raising  revenue  shall  originate  in  the  House  of  Representatives.        17  1 

Proceedings  in  cases  of  bills  returned  by  the  President  with  his  objections..         17  1 

Shall  have  power  to  lay  and  collect  duties,  imposts,  and  excises,  pay  the 
debts,  and  provide  for  the  common  defense  and  general  welfare 1        8  1 

148 


1 

8 

G 

1 

8 

7 

1 

8 

8 

1 

8 

9 

1 

8 

12 

1 

8 

13 

1 

8 

14 

1 

8 

15 

1 

8 

16 

Ft.  1.  THE  CONSTITUTION.  Analytical  Index. 

Arti-    Sec-  p,„„<,p 
cle.     tion.  ^'^use. 

CONGRESS  of  the  United  States— Continued. 

Shall  have  power  to  borrow  money  on  the  credit  of  the  United  States 1        8  2 

To  regulate  foreign  and  domestic  commerce,  and  with  the  Indian  tribes 1        8  3 

To  establish  a  uniform  rule  of  naturalization  and  uniform  laws  on  the  subject 

of  bankruptcies 18  4 

To  coin  money,  regulate  its  value,  and  the  value  of  foreign  coin,  and  to  fix 
the  standard  of  weights  and  measures 1        8  5 

To  punish  the  counterfeiting  the  securities  and  current  coin  of  the  United 
States 

To  establish  post-offices  and  post-roads 

To  promote  the  progress  of  science  and  the  useful  arts 

To  constitute  tribunals  inferior  to  the  Supreme  Court 

To  define  and  to  punish  piracies  and  felonies  on  the  high  seas  and  to  punish 
offenses  against  the  law  of  nations 1        8        10 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make  rules  concern- 
ing captures  on  land  and  water 1        8        11 

To  raise  and  support  armies,  but  no  appropriation  of  money  to  that  use  shall 
be  for  a  longer  term  than  two  years 

To  provide  and  maintain  a  Navy 

To  make  rules  for  the  government  of  the  Army  and  Navy 

To  call  out  the  militia  to  execute  the  laws,  suppress  insurrections,  and  repel 
invasions 

To  provide  for  organizing,  arming,  and  equipping  the  mihtia 

To  exercise  exclusive  legislation  over  the  District  fixed  for  the  seat  of  gov- 
ernment, and  over  forts,  magazines,  arsenals,  and  dockyards 1        8        17 

To  make  all  laws  necessary  and  proper  to  carry  into  execution  all  powers 

vested  by  the  Constitution  in  the  Government  of  the  United  States 1        8        18 

No  person  holding  any  office  under  the  United  States  shall  accept  of  any 
present,  emolument,  office,  or  title  of  any  kind  from  any  foreign  State, 
without  consent  of 19  8 

May  determine  the  time  of  choosing  the  the  electors  for  President  and  Vice- 
President  and  the  day  on  which  they  shall  give  their  votes 2        13 

The  President  may,  on  extraordinary  occasions,  convene  either  House  of 2        3 

The  manner  in  which  the  acts,  records,  and  judicial  proceedings  of  the  States 

shall  be  proved,  shall  be  prescribed  by 4        1 

New  States  may  be  admitted  by  Congress  into  this  Union 4        3  1 

Shall  have  power  to  make  all  needful  rules  and  regulations  respecting  the 

territory  or  other  property  belonging  to  the  United  States 4        3  2 

Amendments  to  the  Constitution  shall  be  proposed  whenever  it  shall  be 
deemed  necessary  by  two-thirds  of  both  Houses  of 5 

Persons  engaged  in  insurrection  or  rebellion  against  the  United  States  dis- 
qualified for  Senators  or  Representatives  in.     [Amendments] 14 

But  such  disqualifications  may  be  removed  by  a  vote  of  two-thirds  of  both 
Houses  of.     [Amendments] 14 

Shall  have  power  to  enforce,  by  appropriate  legislation,  the  thirteenth 
amendment.     [Amendments] 13 

Shall  have  power  to  enforce,  by  appropriate  legislation,  the  fourteenth 
amendment.     [Amendments] 14 

Shall  have  power  to  enforce,  by  appropriate  legislation,  the  fifteenth  amend- 
ment.    [Amendments] 15 

Shall  have  power  to  lay  and  collect  taxes  on  incomes,  from  whatever  source 
derived,  without  apportionment,  and  without  regard  to  any  census  or  enu- 
meration, the  sixteenth  amendment.     [Amendments] 16 

Shall  have  concurrent  power  with  the  States  to  enforce,  by  appropriate  leg- 
islation, the  eighteenth  amendment.     [Amendments] 18 


149 


Analytical  Index  Pt.l.   THE  CONSTITUTION 

Arti-    Sec-    pi„,,„ 
cle.     tion.  ^'^use. 

CONSENT.  No  State  shall  bo  deprived  of  its  equal  suffrage  in  the  Senate  with- 
out its 5 

CONSENT  OF  CONGRESS.  No  person  holding  any  office  of  profit  or  trust 
under  the  United  States  shall  accej)!  of  any  present,  emolument,  office,  or 
title  of  any  kind  whatever,  from  any  king,  prince,  or  foreign  potentate, 

without  the 1        9  8 

No  State  shall  lay  any  imposts  or  duties  on  imports,  except  what  may  be 

absolutely  necessary  for  executing  its  inspection  laws,  mthout  the 1      10  2 

No  State  shall  lay  any  duty  of  tonnage,  keep  troops  or  ships  of  war  in  time 

of  peace,  without  the 1      10  3 

No  State  shall  enter  into  any  agreement  or  compact  with  another  State,  or 

with  a  foreign  power,  ^vithout  the 1      10  3 

No  State  shall  engage  in  war  unless  actually  invaded,  or  in  such  imminent 

danger  as  will  not  admit  of  delay,  without  the 1      10  3 

No  new  State  shall  be  formed  or  erected  within  the  jurisdiction  of  any  other 
State,  or  any  State  be  formed  by  the  junction  of  two  or  more  States,  or 
parts  of  States,  without  the  consent  of  the  legislatures  thereof,  as  well  as 
the 4        3  1 

CONSENT  of  the  legislature  of  the  State  in  which  the  same  may  be.  Congress 
shall  exercise  exclusive  authority  over  all  places  purchased  for  the  erec- 
tion of  forts,  magazines,  arsenals,  dockyards,  and  other  needful  buildings 
with  the 1        8        17 

CONSENT  of  the  legislatures  of  the  States  and  of  Congress.  No  State  shall 
be  formed  by  the  junction  of  two  or  more  States  or  parts  of  States  without 
the 4        3 

CONSENT  OF  THE  OTHER.  Neither  House,  during  the  session  of  Congress, 
shall  adjourn  for  more  than  three  days,  nor  to  any  other  place  than  that  in 
which  they  shall  be  sitting,  without  the 1        5  4 

CONSENT  OF  THE  OWNER.    No  soldier  shall  be  quartered  in  time  of  peace 

in  any  house  without  the.     [Amendments] 3 

CONSENT  OF  THE   SENATE.    The  President  shall  have  power  to  make 

treaties,  by  and  with  the  advice  and 2        2  2 

The  President  shall  appoint  ambassadors,  other  public  ministers  and  consuls, 
judges  of  the  Supreme  Court,  and  all  other  officers  created  by  law  and  not 
otherwise  herein  provided  for,  by  and  with  the  advice  and 2        2  2 

CONSTITUTION,  in  the  Government  of  the  United  States,  or  in  any  depart- 
ment or  officer  thereof.  Congress  shall  have  power  to  pass  all  laws  neces- 
sary to  the  execution  of  the  powers  vested  by 1        8        18 

CONSTITUTION,  shall  be  eUgible  to  the  office  of  President.     No  person,  except 

a  natural-born  citizen,  or  a  citizen  at  the  time  of  the  adoption  of  the 2        1  4 

CONSTITUTION.    The  President,  before  he  enters  upon  the  execution  of  his 

office,  shall  take  an  oath  to  preserve,  protect,  and  defend  the 2        ''  7 

CONSTITUTION,  laws,  and  treaties  of  the  United  States.     The  judicial  power 

shall  extend  to  all  cases  arising  under  the 3        2  1 

CONSTITUTION  shall  be  so  construed  as  to  prejudice  any  claims  of  the  United 
States,  or  of  any  State  (in  respect  to  territory  or  other  property  of  the 
United  States).     Nothing  in  the 4        3  2 

CONSTITUTION.     The  manner  in  which  amendments  to,  may  be  propo.-ed  and 

ratified 5 

CONSTITUTION  shall  be  as  valid  under  it  as  under  the  Confederation.     All 

debts  and  engagements  contracted  before  the  adoption  of  the 6       . .  1 

CONSTITUTION  and  the  laws  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  by  the  United  States,  shall  be  the  supreme  law  of 

the  land.     The 6       ..  2 

The  judges  in  every  State,  anything  in  the  constitution  or  laws  of  a  State  to 
the  contrary  notwithstanding,  shall  be  bound  thereby 6      ..  2 

150 


Pt.l.   THE  CONSTITUTION.  Analytical  Index. 

Arti-    Sec-    n\„.,^^ 
cle.     tion.   Clause. 

CONSTITUTION.  All  officers,  legislative,  executive,  and  judicial,  of  the 
United  States,  and  of  the  several  States,  shall  be  bound  by  an  oath  to  sup- 
port the 6       ..  3 

But  no  religious  test  shall  ever  be  required  as  a  qualification  for  any  office  or 
public  trust 6       . .  3 

CONSTITUTION,  between  the  States  so  ratifying  the  same.  The  ratification  of 
the  conventions  of  nine  States  shall  be  sufficient  for  the  establishment  of 
the 7 

CONSTITUTION  of  certain  rights  shall  not  be  construed  to  deny  or  disparage 
others  retained  by  the  people.  The  enumeration  in  the.  [Amend- 
ments]           9 

CONSTITUTION,  nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively  or  to  the  people.  Powers  not  delegated  to  the  United  States 
by  the.     [Amendments] 10 

CONSTITUTION,  and  then  engaged  in  rebellion  against  the  United  States. 
Disqualification  for  office  imposed  upon  certain  classes  of  persons  who  took 
an  oath  to  support  the.     [Amendments] 14        3 

CONSTITUTION.  Done  in  convention  by  the  unanimous  consent  of  the  States 
present,  September  17,  1787. 

CONTRACTS.     No  State  shall  pass  any  ex  post  facto  law,  or  law  impairing  the 

obligation  of 1      10  1 

CONTROVERSIES  to  which  the  United  States  shall  be  a  party;  between  two  or 
more  States;  between  a  State  and  citizens  of  another  State;  between  citizens 
of  different  States;  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States;  between  a  State  or  its  citizens  and  foreign 
States,  citizens,  or  subjects.     The  judicial  power  shall  extend  to 3        2  1 

CONVENE  CONGRESS  or  either  House,  on  extraordinary  occasion.  The  Presi- 
dent may 2        3 

CONVENTION  for  proposing  amendments  to  the  Constitution.     Congress,  on  the 

application  of  two-thirds  of  the  legislatures  of  the  States,  may  call  a 5 

CONVENTION,  by  the  unanimous  consent  of  the  States  present  on  the  17th  of 

September,  1787.     Adoption  of  the  Constitution  in 7 

CONVENTIONS  of  nine  States  shall  be  sufficient  for  the  establishment  of  the 

Constitution.     The  ratification  of  the 7 

CONVICTION  in  cases  of  impeachment  shall  not  be  had  without  the  concur- 
rence of  two-thirds  of  the  members  present 1        3  6 

COPYRIGHTS  to  authors  for  limited  times.  Congress  shall  have  power  to  pro- 
vide for 1        8  8 

CORRUPTION  OF  BLOOD.     Attainder  of  treason  shall  not  work 3        3  2 

COUNSEL  for  his  defense.     In  all  criminal  prosecutions  the  accused  shall  have 

the  assistance  of.     [Amendments] 6 

COUNTERFEITING  the  securities  and  current  coin  of  the  United  States.  Con- 
gress shall  provide  for  the  punishment  of 1        8  6 

COURTS.  Congress  shall  have  power  to  constitute  tribunals  inferior  to  the  Su- 
preme Court 1        8  9 

COURTS  OF  LAW.  Congress  may  by  law  vest  the  appointment  of  such  inferior 
officers  as  they  think  proper  in  the  President  alone,  in  the  heads  of  De- 
partments, or  in  the 2        2  2 

COURTS  as  Congress  may  establish.     The  judicial  power  of  the  United  States 

shall  be  vested  in  one  Supreme  Court  and  such  inferior 3        1 

COURTS.    The  judges  of  the  Supreme  and  inferior  coiu-ts  shall  hold  their  offices 

during  good  behavior 3        1 

Their  compensation  shall  not  be  diminished  during  their  continuance  in 

office 3        1 

CREDIT.    No  State  shall  emit  bills  of 1      10         1 


151 


Analytical  Index. 


Pt.  1.  THE  CONSTITUTION. 


CREDIT  of  the  United  States.  Congress  shall  have  power  to  borrow  money  on 
the 

CREDIT  shall  be  given  in  every  other  State  to  the  public  acts,  records,  and  judi- 
cial proceedings  of  each  State.    Full  faith  and 

CRIME,  unless  on  a  presentment  of  a  grand  jiu"y.     No  person  shall  be  held  to 

answer  for  a  capital  or  otherwise  infamous.     [Amendments] 

Except  in  cases  in  the  milifairy  and  naval  forces,  or  in  the  militia,  when  in 

actual  service.    [Amendments] 

CRIMES  AND  MISDEMEANORS.  The  President,  Vice-President,  and  all 
civil  officers  shall  be  removed  on  impeachment  for  and  conviction  of  trea- 
son, bribery,  or  other 

CRIMES,  except  in  cases  of  impeachment,  shall  be  tried  by  jiu-y.     All 

They  shall  be  tried  in  the  State  within  which  they  may  be  committed 

"When  not  committed  in  a  State,  they  shall  be  tried  at  the  places  which  Con- 
gress may  by  law  have  provided 

CRIMINAL  PROSECUTIONS,  the  accused  shall  have  a  speedy  and  public  trial 
by  jury  in  the  State  and  district  where  the  crime  was  committed.     In  all. 

[Amendments] 

He  shall  be  informed  of  the  nature  and  cause  of  the  accusation.     [Amend- 
ments]  

He  shall  be  confronted  with  the  witnesses  against  him.     [Amendments] 

He  shall  have   compulsory  process  for  obtaining  witnesses  in  his  favor. 

[Amendments]. 

He  shall  have  the  assistance  of  counsel  in  his  defense.     [Amendments] 

CRIMINATE   HIMSELF.      No  person  as  a  witness  shall  be   compelled  to. 

[Amendments] 

CRUEL  AND  UNUSUAL  PUNISHMENTS  inflicted.  Excessive  bail  shaU 
not  be  required,  nor  excessive  fines  imposed,  nor.     [Amendments] 


Arti-     Seo- 
cle.     tion. 


1  8 

4  1 

5  .. 

5  .. 


2  4 

3  2 
3         2 


6 
6 

6 
6 

5 

8 


D. 

DANGER  as  will  not  admit  of  delay.     No  State  shall,  without  the  consent  of 

Congress,  engage  in  war,  unless  actually  invaded  or  in  such  imminent 1 

DAY  on  which  they  shall  vote  for  President  and  Vice-President,  which  shall  be 
the  same  throughout  the  United  States.  Congress  may  determine  the  time 
of  choosing  the  electors  and  the 2 

DAY  TO  DAY,  and  may  be  authorized  to  compel  the  attendance  of  absent  mem- 
bers.    A  smaller  number  than  a  quorum  of  each  House  may  adjourn  from.         1 

DEATH,  resignation,  or  inabihty  of  the  President,  the  powers  and  duties  of  his 

ofiice  shall  devolve  on  the  Vice-President.     In  case  of  the 2 

DEATH,  resignation,  or  inability  of  the  President.     Congress  may  provide  by 

law  for  the  case  of  the  removal 2 

DEBT  of  the  United  States,  including  debts  for  pensions  and  bounties  incurred 
in  suppressing  insiurection  or  rebellion,  shall  not  be  questioned.  The 
validity  of  the  public.     [Amendments] 14 

DEBTS.  No  State  shall  make  anything  but  gold  and  silver  coin  a  tender  in  pay- 
ment of 1 

DEBTS  and  provide  for  the  common  defense  and  general  welfare  of  the  United 

States.     Congress  shall  have  power  to  pay  the 1 

DEBTS  and  engagements  contracted  before  the  adoption  of  this  Constitution 

shall  be  as  valid  against  the  United  States  under  it  as  under  the  Confederation        6 

DEBTS  or  obligations  incurred  in  aid  of  insurrection  or  rebellion  against  the 
United  States,  or  claims  for  the  loss  or  emancipation  of  any  slave.  Neither 
the  United  States  nor  any  State  shall  assume  or  pay  an}\     [Amendments].       14 

DECLARE  "WAR,  grant  letters  of  marque  and  reprisal,  and  make  rules  concern- 
ing captures  on  land  and  water.     Congress  shall  have  power  to 1 


Clause, 
2 


3 
3 


10 


3 
1 
5 
5 


10 


1 
1 
1 


11 


152 


Pt.l.   THE  CONSTITUTION.  Analytical  Index. 

Arti-    Sec-   (,,„,„. 
cle.    tion.  "-'^use. 

DEFENSE,  promote  the  general  welfare,  etc.  To  insure  the  common.  [Pre- 
amble.] 

DEFENSE  and  general  welfare  throughout  the  United  States.     Congress  shall 

have  power  to  pay  the  debts  and  provide  for  the  common 1        8  1 

DEFENSE.     In  all  criminal  prosecutions  the  accused  shall  have  the  assistance 

of  counsel  for  his.     [Amendments] 6 

DELAWARE  entitled  to  one  Representative  in  the  First  Congress 1        2  3 

DELAY.     No  State  shall,  without  the  consent  of  Congress,  engage  in  war  unless 

actually  invaded,  or  in  such  imminent  danger  as  will  not  admit  of 1      10  3 

DELEGATED  to  the  United  States,  nor  prohibited  to  the  States,  are  reserved  to 

the  States  or  to  the  people.     The  powers  not.     [Amendments] 10 

DENY  OR  DISPARAGE  others  retained  by  the  people.     The  enumeration  in 

the  Constitution  of  certain  rights  shall  not  be  construed  to.     [Amendments]        9 

DEPARTMENTS  upon  any  subject  relating  to  their  duties.     The  President  may 

require  the  written  opinion  of  the  principal  officers  in  each  of  the  Executive  .221 

DEPARTMENTS.     Congress  may  by  law  vest  the  appointment  of  inferior  officers 

in  the  heads  of 2        2  2 

DIRECT  TAX  shall  be  laid  unless  in  proportion  to  the  census  or  enumeration. 

No  capitation  or  other 1        9  4 

DIRECT  TAXES  and  Representatives,   how  apportioned  among  the  several 

States.     [Repealed  by  the  second  section  of  the  fourteenth  amendment] . .         12  3 

DISABILITY  of  the  President  and  Vice-President.     Provisions  in  case  of  the.  .215 

DISABILITY.  No  person  shall  be  a  Senator  or  Representative  in  Congress,  or 
Presidential  elector,  or  hold  any  office,  civil  or  military,  xmder  the  United 
States,  or  any  State,  who  having  previously  taken  an  oath  as  a  legislative, 
executive,  or  judicial  officer  of  the  United  States,  or  of  any  State,  to  support 
the  Constitution,  afterwards  engaged  in  insurrection  or  rebellion  against 
the  United  States.     [Amendments] 14        3 

DISABILITY.  But  Congress  may,  by  a  vote  of  two-thirds  of  each  House,  re- 
move Buch.     [Amendments] 14        3 

DISAGREEMENT  between  the  two  Houses  as  to  the  time  of  adjournment,  the 
President  may  adjourn  them  to  such  time  as  he  may  think  proper.  In 
case  of 2        3 

DISORDERLY  BEHAVIOR.     Each  House  may  punish  its  members  for 15  2 

And  with  the  concurrence  of  two-thirds  expel  a  member  for 1        5  2 

DISPARAGE  others  retained  by  the  people.  The  enumeration  in  the  Consti- 
tution of  certain  rights  shall  not  be  construed  to  deny  or.     [Amendments] .         9 

DISQUALIFICATION.  No  Senator  or  Representative  shall,  during  the  time 
for  which  he  was  elected,  be  appointed  to  any  office  under  the  United 
States  which  shall  have  been  created  or  its  emoluments  increased  during 

such  term 16  2 

No  person  holding  any  office  under  the  United  States  shall  be  a  member  of 

either  House  during  his  continuance  in  office 1        6  2 

No  person  shall  be  a  member  of  either  House,  Presidential  elector,  or  hold 
any  office  under  the  United  States,  or  any  State,  who,  having  previously 
sworn  to  support  the  Constitution,  afterwards  engaged  in  insurrection  or 

rebellion.     [Amendments] 14        3 

But  Congress  may,  by  a  vote  of  two-thirds  of  each  House,  remove  such  dis- 
ability.    [Amendments] 14        3 

DISTRICT  OF  COLUMBIA.     Congress  shall  exercise  exclusive  legislation  in 

all  cases  over  the 1        8        17 

DOCKYARDS.  Congress  shall  have  exclusive  authority  over  all  places  pur- 
chased for  the  erection  of 1        8        17 

DOMESTIC  TRANQUILLITY,  provide  for  the  common  defense,  etc.  To  in- 
sure.   [Preamble.] 

163 


Analytical  Index.  Pt.l.   THE  CONSTITUTION. 

Arti-    Sec-   p, 
cle.     tion.  '^"*"'"=' 

DOMESTIC  VIOLENCE.     The  United  States  shall  protect  each  State  against 

invasion  and 4        4 

DUE  PROCESS  OF  LAW.  No  person  shall  be  compelled,  in  any  criminal 
case,  to  be  a  ^vnitness  against  himself,  nor  be  deprived  of  life,  liberty,  or 

property  without.     [Amendments] 5 

No  State  shall  deprive  any  person  of  life,  liberty,  or  property  without. 

[Amendments] 14        1 

DUTIES  AND  POWERS  of  the  office  of  President,  in  case  of  his  death,  removal, 

or  inability  to  act,  shall  devolve  on  the  Vice-President 2        1  5 

DUTIES  AND  PO^^^RS.     In  case  of  the  disability  of  the  President  and  Vice- 
President,  Congress  shall  declare  what  ofHccr  shall  act , 2        15 

DUTIES,  imposts,  and  excises.     Congress  shall  have  power  to  lay  and  collect 

taxes 1        8  1 

Shall  be  uniform  throughout  the  United  States 18  1 

DUTIES  shall  bo  laid  on  articles  exported  from  any  State.     No  tax  or 1        9  5 

DUTIES  in  another  State.     Vessels  clearing  in  the  ports  of  one  State  shall  not 

be  obliged  to  pay 19  6 

On  imports  and  exports,  without  the  consent  of  Congress,  except  where 

necessary  for  executing  its  inspection  laws.     No  State  shall  lay  any 1      10  2 

DUTIES  on  imports  or  exports.     The  net  produce  of  all  such  duties  shall  be  for 

the  use  of  the  Treasury  of  the  United  States 1      10  2 

All  laws  laying  such  duties  shall  be  subject  to  the  revision  and  control  of 

Congress 1       10  2 

DUTY  OF  TONNAGE  without  the  consent  of  Congress.     No  State  shall  lay  any.         1      10  3 

E. 

ELECTION  of  President  and  Vice-President.     Congress  may  determine  the  day 

for  the 2        13 

Shall  be  the  same  throughout  the  United  States.     The  day  of  the 2        13 

ELECTIONS  for  Senators  and  Representatives.     The  legislatures  of  the  States 

shall  prescribe  the  times,  places,  and  manner  of  holding 1        4  1 

But  Congress  may,  at  any  time,  alter  such  regulations,  except  as  to  the  places 

of  choosing  Senators 1        4  1 

ELECTIONS  for  Senators  and  Representatives.     Returns  and  qualifications  of 

its  own  members.    Each  House  shall  be  judge  of  the 15  1 

ELECTORS  for  members  of  the  House  of  Representatives.     Qualifications  of. ..         12  1 

ELECTORS  for  members  of  the  Senate,  qualifications  of.     The  seventeenth 

amendment.     [Amendments] 17 

ELECTORS  for  President  and  Vice-President.  Each  State  shall  appoint,  in  such 
manner  as  the  legislature  thereof  may  direct,  a  number  of  electors  equal  to 
the  whole  number  of  Senators  and  Representatives  to  which  the  State  may 

be  entitled  in  the  Congress 2        1  2 

But  no  Senator  or  Representative,  or  person  holding  an  office  of  trust  or 

profit  under  the  United  States  shall  be  appointed  an  elector 2        1  2 

ELECTORS.     Congress  may  determine  the  time  of  choosing  the  electors  and  the 

day  on  which  they  shall  give  their  votes 2        1  3 

Which  day  shall  be  the  same  throughout  the  United  States 2        1  3 

The  electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  Presi- 
dent and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant 

of  the  same  State  with  themselves.     [Amendments] 12 

ELECTORS  shall  name,  in  their  ballots,  the  person  voted  for  as  President;  and 

in  distinct  ballots  the  person  voted  for  as  Vice-President.     [Amendments].       12 
They  shall  make  distinct  lists  of  the  persons  voted  for  as  President  and  of 
persons  voted  for  as  Vice-President,  which  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  government,  directed  to  the  President  of  the 
Senate.     [Amendments] 12 

154 


Pt.  1.   THE  CONSTITUTION.  Analytical  Index. 

Arti-    Sec-    p. 
cle.     tion.    *-iause. 

ELECTORS— Continued. 

No  person  having  taken  an  oath  as  a  legislative,  executive,  or  judicial  officer 
of  the  United  States,  or  of  any  State,  and  afterwards  engaged  in  insurrection 
or  rebellion  against  the  United  States,  shall  be  an  elector.    [Amendments]..       14        3 
But  Congress  may,  by  a  vote  of  two-thirds  of  each  House,  remove  such  disa- 
bility.    [Amendments] 14        3 

EMANCIPATION  of  any  slave  shall  be  held  to  be  illegal  and  void.     Claims  for 

the  loss  or.     [Amendments] 14        4 

EMIT  BILLS  OF  CREDIT.     No  State  shall 1      10  1 

EMOLUMENT  of  any  kind  from  any  king,  prince,  or  foreign  State,  without  the 
consent  of  Congress.  No  person  holding  any  office  under  the  United  States 
shall  accept  any 1        9 

ENEMIES.     Treason  shall  consist  in  levying  war  against  the  United  States,  in 

adhering  to,  or  giving  aid  and  comfort  to  their 3        3  1 

ENGAGEMENTS  contracted  before  the  adoption  of  this  Constitution  shall  be 

valid.     All  debts  and 6       . .  1 

ENUMERATION  of  the  inhabitants  shall  be  made  within  three  years  after  the 
first  meeting  of  Congress,  and  within  every  subsequent  term  of  ten  years 

thereafter 1        2  3 

Ratio  of  representation  not  to  exceed  one  for  every  30,000  until  the  first 

enumeration  shall  be  made 1        2  3 

In  the  Constitution,  of  certain  rights,  shall  not  be  construed  to  deny  or  dis- 
parage others  retained  by  the  people.  The.  [Amendments.]  [See  six- 
teenth amendment] 9 

EQUAL  PROTECTION  of  the  laws.     No  State  shall  deny  to  any  person  within 

its  jurisdiction  the.     [Amendments] 14        1 

EQUAL  SUFFRAGE  in  the  Senate.     No  State  shall  be  deprived  without  its 

consent  of  its 5 

ESTABLISHMENT  of  this  Constitution  between  the  States  ratifying  the  same. 

The  ratification  of  nine  States  shall  be  sufficient  for  the 7 

EXCESSIVE  BAIL  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel 

and  unusual  punishments  inflicted.     [Amendments] 8 

EXCISES.     Congress  shall  have  power  to  lay  and  collect  taxes,  duties,  imposts, 

and 18  1 

Shall  be  uniform  throughout  the  United  States.     All  duties,  imposts,  and.  .         18  1 

EXCLUSIVE  LEGISLATION,  in  all  cases,  over  such  district  as  may  become 

the  seat  of  government.     Congress  shall  exercise 1        8        17 

EXCLUSIVE  LEGISLATION  over  all  places  purchased  for  the  erection  of  forts, 
magazines,  arsenals,  dockyards,  and  other  needful  buildings.  Congress 
shall  exercise 1        8        17 

EXECUTIVE  OF  A  STATE .     The  United  States  shall  protect  each  State  against 

invasion  and  domestic  violence  on  the  application  of  the  legislature  or  the . .         4        4 

EXECUTIVE  AND  JUDICIAL  OFFICERS  of  the  United  States  and  of  the 

several  States  shall  be  bound  by  an  oath  to  support  the  Constitution 6       . .  3 

EXECUTIVE  DEPARTMENTS.  On  subjects  relating  to  their  duties  the  Presi- 
dent may  require  the  written  opinions  of  the  principal  officers  in  each  of 

the 2        2  1 

Congressmay  by  law  vest  the  appointment  of  inferior  officers  in  the  heads  of. .         2        2  2 

EXECUTIVE  POWER  shall  be  vested  in  a  President  of  the  United  States  of 

America.    The 2        11 

EXPEL  A  MEMBER.     Each  House,  with  the  concurrence  of  two-thirds,  may.         15  2 

EXPENDITURES  of  public  money  shall  be  published  from  time  to  time.     A 

regular  statement  of  the  receipts  and 1        9  7 

EXPORTATION  OF  INTOXICATING  LIQUORS  for  beverage  purposes  pro- 
hibited.    [Amendments] 18        1 

EXPORTATIONS  from  any  State.     No  tax  or  duty  shall  be  laid  on 1        9  5 

54641°— 22 11  165 


Analytical  Index.  Pt.l.   THE  CONSTITUTION. 


Arti-    Sec-    p,„,„„ 
cle.     tion.    Clause. 


EXPORTS  OR  IMPORTS,  except  upon  certain  conditions.     No  State  shall, 

witliout  the  consent  of  Congress,  lay  any  duties  on 1       10  2 

Laid  by  any  State  shall  be  for  the  use  of  the  Treasury.     The  net  produce  of 

all  duties  on 1       JO  2 

Shall  be  subject  to  the  revision  and  control  of  Congress.     All  laws  of  the 

States  laying  duties  on 1      10  2 

EX  POST  FACTO  law  shall  be  passed.     No  bill  of  attainder  or 1        9  3 

EX  POST  FACTO  law,  or  law  impairing  the  obligation  of  contracts.     No  State 

shall  pass  any  bill  of  attainder 1       10  1 

EXTRAORDINARY  OCCASIONS.     The  President  may  convene  both  Houses 

or  either  of  them 2        3 

F. 

FAITH  and  credit  in  each  State  shall  be  given  to  the  acts,  records,  and  judicial 

proceedings  of  another  State.     Full 4        1 

FELONY,  and  breach  of  the  peace.     Members  of  Congress  shall  not  be  privileged 

from  arrest  for  treason 16  1 

FELONIES  committed  on  the  high  seas.     Congress  shall  have  power  to  define 

and  punish  ])iracies  and 1        8        10 

FINES.     Excessive  fines  shall  not  be  imposed.     [Amendments] 8 

FOREIGN  COIN.     Congress  shall  have  power  to  coin  money,  fix  the  standard  of 

weights  and  measures,  and  to  regulate  the  value  of 1        8  ^ 

FOREIGN  NATIONS  among  the  States  and  with  the  Indian  tribes.     Congress 

shall  have  power  to  regulate  commerce  with 18  3 

FOREIGN  POWER.     No  State  shall,  without  the  consent  of  Congress,  enter  into 

any  compact  or  agreement  with  any 1      10  3 

FORFEITURE  except  during  the  life  of  the  person  attainted.    Attainder  of 

treason  shall  not  work 3        3  2 

FORMATION  of  new  States.     Provisions  relating  to  the 4        3  1 

FORM  OF  GOVERNMENT.    The  United  States  shall  guarantee  to  every  State 

in  this  Union  a  republican 4        4 

And  shall  protect  each  of  them  against  invasion;  and  on  application  of  the  leg- 
islature or  of  the  executive  (when  the  legislature  can  not  be  convened) 
against  domestic  violence 4        4 

FORTS,  magazines,  arsenals,  dockyards,  and  other  needfiil  buildings.  Congress 
shall  exercise  exclusive  authority  over  all  places  purchased  for  the  erec- 
tion of 1        8        17 

FREEDOM  of  speech  or  the  press.     Congress  shall  make  no  law  abridging  the. 

[Amendments] 1 

FREE  STATE,  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be  infringed. 
A  well-regulated  militia  being  necessary  to  the  security  of  a.  [Amend- 
ments]          2 

FUGITIVES  from  crime  found  in  another  State  shall,  on  demand,  be  delivered  up 

totheauthoritiesof  the  State  from  which  they  may  flee 4        2  2 

FUGITIVES  from  service  or  labor  in  one  State,  escaping  into  another  State,  shall 

be  delivered  up  to  the  party  to  whom  such  service  or  labor  may  be  due 4        2  3 

G. 

GENERAL  WELFARE  and  secure  the  blessings  of  liberty,  etc.     To  promote  the. 

[Preamble.] 
GENERAL  WELFARE.    Congress  shall  have  power  to  provide  for  the  common 

defense  and 1        8  1 

GEORGIA  shall  be  entitled  to  three  Representatives  in  the  First  Congress 1        2  3 

GOLD  AND  SILVER  coin  a  tender  in  payment  of  debts.     No  State  shall  make 

anything  but 1      10  1 

156 


Pt.l.   THE  CO  NSTITD  TIO  N.  Analytical  Index . 

Arti-    Sec-   p,;,,,,- 
cle.     tion.  ^'^use. 

GOOD  BEHAVIOR.     The  judges  of  the  Supreme  and  inferior  courts  shall  hold 

their  offices  during 3        1 

GOVERNMENT .     The  United  States  shall  guarantee  to  every  State  in  this  Union 

a  republican  form  of 4        4 

And  shall  protect  each  of  them  against  invasion ;  and  on  application  of  the  leg- 
islature or  of  the  executive  (when  the  legislature  can  not  be  convened) 
against  domestic  violence 4        4 

GRAND  JURY.  No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  in- 
famous crime,  unless  on  the  presentment  of  a.     [Amendments] 5 

Except  in  cases  arising  in  the  land  and  naval  forces,  and  in  the  militia  when  in 
actual  service.     [Amendments] 5 

GUARANTEE  to  every  State  in  this  Union  a  republican  form  of  government. 

The  United  States  shall 4        4 

GUARANTEE.  And  shall  protect  each  of  them  against  invasion,  and  on  applica- 
tion of  the  legislature  or  of  the  executive  (when  the  legislature  can  not  be 
convened)  against  domestic  violence 4        4 

H. 

HABEAS  CORPUS  shall  not  be  suspended  unless  in  cases  of  rebellion  or  invasion. 

The  writ  of 19  2 

HEADS  OF  DEPARTMENTS.     Congress  may  by  law  vest  the  appointment  of 

inferior  officers  in  the 2        2  2 

On  any  subject  relating  to  their  duties,  the  President  may  require  the  written 

opinion  of  the  principal  officers  in  each  of  the  Execiitive  Departments 2        2  1 

HIGH  CRIMES  AND  MISDEMEANORS.  The  President,  Vice-President,  and 
all  civil  officers  shall  be  removed  on  impeachment  for  and  conviction  of 

treason,  bribery,  or  other 2        4 

HOUSE  OF  REPRESENTATIVES.     Congress  shall  consist  of  a  Senate  and. . . .         1        1 

Shall  be  composed  of  members  chosen  every  second  year 1        2  1 

Qualifications  of  electors  for  members  of  the 1        2  1 

No  person  shall  be  a  member  who  shall  not  have  attained  the  age  of  twenty- 
five  years,  and  been  seven  years  a  citizen  of  the  United  States 1        2  2 

The  executives  of  the  several  States  shall  issue  writs  of  election  to  fill  vacan- 
cies in  the 12  4 

Shall  choose  their  Speaker  and  other  officers 1        2  5 

Shall  have  the  sole  power  of  impeachment 1        2  5 

Shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its  own 

members 15  1 

A  majority  shall  constitute  a  quorum  to  do  business 1        5  1 

Less  than  a  majority  may  adjourn  from  day  to  day,  and  compel  the  attend- 
ance of  absent  members 1        5  1 

May  determine  its  own  rules  of  proceedings 1        5  2 

May  punish  its  members  for  disorderly  behavior,  and,  with  the  concurrence 

of  two-thirds,  expel  a  member 1        5  2 

Shall  keep  a  journal  of  its  proceedings 1        5  3 

Shall  not  adjourn  for  more  than  three  days  during  the  session  of  Congress 

without  the  consent  of  the  Senate 15  4 

For  any  speech  or  debate  in  either  House,  members  shall  not  be  questioned 

in  any  other  place 16  1 

No  person  holding  any  office  under  the  United  States  shall,  while  holding 

such  office,  be  a  member  of  the 1        6  2 

No  member  shall,  during  the  time  for  which  he  was  elected,  be  appointed 
to  an  office  which  shall  have  been  created  or  the  emoluments  increased 

during  his  membership 16  2 

All  bills  for  raising  revenue  shall  originate  in  the 1        7  1 

157 


Analytical  Index.  I't.  1.   THE  CONSTITUTION. 


Arti-     Sec-  ny „ 

cle.      tion.  Cl*"^** 


HOUSE  OF  REPRESENTATIVES— Continued. 

The  votes  for  President  and  Vice-President  shall  be  counted  in  the  presence 
of  the  Senate  and.     [Amendments] 12 

If  no  person  have  a  majority  of  electoral  votes,  then  from  the  three  highest 
on  the  list  the  House  of  Representatives  shall  immediately,  by  ballot, 
choose  a  President.     [Amendments] 12 

They  shall  vote  by  States,  each  State  counting  one  vote.     [Amendments]..       12 

A  quorum  shall  consist  of  a  member  or  members  from  two-thirds  of  the  States, 
and  a  majority  of  all  the  States  shall  be  necessary  to  the  choice  of  a  Presi- 
dent.    [Amendments] 12 

No  person  having  as  a  legislative,  executive,  or  judicial  officer  of  the  United 
States,  or  of  any  State,  taken  an  oath  to  support  the  Constitution,  and  after- 
wards engaged  in  insurrection  or  rebellion  against  the  United  States,  shall 
be  a  member  of  the.     [Amendments] 14        3 

But  Congress  may,  by  a  vote  of  two-thirds  of  each  House,  remove  such  disa- 
bility.    [Amendments] 14        3 

I. 

IMMINENT  DANGER  as  will  not  admit  of  delay.     No  state  shall,  without  the 

consent  of  Congress,  engage  in  war,  unless  actually  invaded  or  in  such 1       10  3 

IMMUNITIES.  Members  of  Congress  shall,  in  all  cases  except  treason,  felony, 
and  breach  of  the  peace,  be  privileged  from  arrest  during  their  attendance 
at  the  session  of  their  respective  Houses,  and  in  going  to  and  returning  from 
the  same 1        6  1 

No  soldier  shall  be  quartered  in  any  house  without  the  consent  of  the  owner 
in  time  of  peace.     [Amendments] 3 

No  person  shall  be  twice  put  in  jeopardy  of  Life  or  limb  for  the  same  offense. 
[Amendments] 5 

All  persons  born  or  naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of  the  State  in  which 
they  reside.     [Amendments] 14        1 

No  State  shall  make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States.     [Amendments] 14        1 

Nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property  without 
due  process  of  law.     [Amendments] 14        1 

Nor  deny  to  any  person  within  its  jurisdiction  the  equal  protection  of  the 

laws.     [Amendments] 14         1 

IMPEACHMENT.     The  President  may  grant  reprieves  and  pardons  except  in 

cases  of 2        2  1 

The  House  of  Representatives  shall  have  the  sole  power  of 1        2  5 

The  trial  of  all  crimes  shall  be  by  jury,  except  in  cases  of 3        2  3 

IMPEACHMENT  for  and  conviction  of  treason,  bribery,  and  other  high  crimes 
and  misdemeanors.     The  President,  Vice-President,  and  all  civil  officers 

shall  be  removed  iipon 2        4 

IMPEACHMENTS.     The  Senate  shall  have  sole  power  to  try  all 1        3  6 

The  Senate  shall  be  on  oath  or  affirmation  when  sitting  for  the  trial  of 1        3  6 

When  the  President  of  the  United  States  is  tried  the  Chief  Justice  shall  pre- 
side          13  6 

No  person  shall  be  convicted  without  the  concurrence  of  two-thirds  of  the 
members  present 13  6 

Judgment  shall  not  extend  beyond  removal  from  office  and  disqualification 

toholdoffice 13  7 

But  the  party  convicted  shall  be  liable  to  indictment  and  punishment 

according  to  law 1        3  7 

IMPORTATION  OF  INTOXICATING  LIQUORS  for  beverage  purposes  pro- 
hibited.    [Amendments] 18        1 

158 


M 


Pt.l.   THE  CONSTITUTION.  Analytical  Index. 

Arti-     Sec-  n\^.,^^ 
cle.      tion.  ^^aus*- 

IMPORTATION  of  slaves  prior  to  1808  shall  not  be  prohibited  by  the  Congress.         19  1 

But  a  tax  or  duty  of  ten  dollars  for  each  person  may  be  imposed  on  such 19  1 

IMPORTS  OR  EXPORTS  except  what  may  be  absolutely  necessary  for  exe- 
cuting its  inspection  laws.  No  State  shall,  without  the  consent  of  Con- 
gress, lay  any  imposts  or  duties  on 1      10  2 

IMPORTS  OR  EXPORTS  laid  by  any  State  shall  be  for  the  use  of  the  Treasury. 

The  net  produce  of  all  duties  on 1       10  2 

IMPORTS  OR  EXPORTS  shall  be  subject  to  the  revision  and  control  of  Con- 
gress.    All  laws  of  States  laying  duties  on 1       10  2 

IMPOSTS  AND  EXCISES.     Congress  shall  have  power  to  lay  and  collect  taxes, 

duties 1        8  1 

Shall  be  uniform  throughout  the  United  States.     All  taxes,  duties 1        8  1 

INABILITY  of  the  President,  the  powers  and  duties  of  his  office  shall  devolve 

on  the  Vice-President.     In  case  of  the  death,  resignation,  or 2        1  5 

INABILITY  of  the  President  or  Vice-President.     Congress  may  provide  by  law 

for  the  case  of  the  removal,  death,  resignation,  or 2        1  5 

INCOMES,  the  Congress  shall  have  power  to  lay  and  collect  taxes  on.  The  six- 
teenth amendment.     [Amendments] 16 

INDIAN  TRIBES.     Congress  shall  have  power  to  regulate  commerce  with  the.         18  3 

INDICTMENT  or  presentment  of  a  grand  jury.     No  person  shall  be  held  to 

answer  for  a  capital  or  infamous  crime  unless  on.     [Amendments] 5 

Except  in  cases  arising  in  the  land  or  naval  forces  or  in  the  militia  when 
in  actual  service.     [Amendments] 5 

INDICTMENT,  trial,  judgment,  and  punishment,  according  to  law.  The  party 
convicted  in  case  of  impeachment  shall  nevertheless  be  liable  and  sub- 
ject to 13  7 

INFAMOUS  CRIME  unless  on  presentment  or  indictment  of  a  grand  jury.     No 

person  shall  be  held  to  answer  for  a  capital  or.     [Amendments] 5 

INFERIOR  COURTS.     Congress    shall    have   power    to    constitute    tribunals 

inferior  to  the  Supreme  Court 1        8  9 

INFERIOR  COURTS  as  Congress  may  establish.     The  judicial  power  of  the 

United  States  shall  be  vested  in  one  Supreme  Court  and  such 3        1 

The  judges  of  both  the  Supreme  and  inferior  cotu"ts  shall  hold  their  offices 

during  good  behavior 3        1 

Their  compensation  shall  not  be  diminished  during  their  continuance  in 
office 3        1 

INFERIOR  OFFICERS  in  the  courts  of  law,  in  the  President  alone,  or  in  the 
heads  of  Departments.  Congress,  if  they  think  proper,  may  by  law  vest 
the  appointment  of 2        2  2 

INHABITANT  OF  THE  STATE  for  which  he  shall  be  chosen.  No  person 
shall  be  a  Senator  who  shall  not  have  attained  the  age  of  thirty  years, 
been  nine  years  a  citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an 13  3 

INSURRECTION  OR  REBELLION  against  the  United  States.  No  person 
shall  be  a  Senator  or  Representative  in  Congress,  or  Presidential  elector, 
or  hold  any  office,  civil  or  military,  under  the  United  States,  or  any  State, 
who,  having  taken  an  oath  as  a  legislative,  executive,  or  judicial  officer 
of  the  United  States,  or  of  a  State,  afterwards  engaged  in.  [Amendments].  14  3 
But  Congress  may,  by  a  vote  of  two-thirds  of  each  House,  remove  such  dis- 
abilities.    [Amendments] 14        3 

Debts  declared  illegal  and  void  which  were  contracted  in  aid  of.     [Amend- 
ments]        14        4 

INSURRECTIONS  and  repel  invasions.     Congress  shall  provide  for  calling 

forth  the  militia  to  suppress 1        8        15 

INTOXICATING  LIQUORS,  for  beverage  purposes,  prohibited.  [Amend- 
ments]         18         1 

159 


Analytical  Index.  Pt.l.  THE  CONSTITUTION. 

Arti- 
cle. 

INVASION.     No  State  shall,  without  the  consent  of  Oono^ress,  engage  in  war 
unless  actually  invaded,  or  in  such  imminent  danger  as  will  not  admit  of 

delay 1 

The  WTit  of  habeas  corpus  shall  not  be  susjiended  unless  in  case  of  rebellion  or .         1 

INVASION  and  domestic  violence.     The  United  States  shall  protect  each  State 

against 4 

INVASIONS.     Congress  shall  provide  for  calling  forth  the  militia  to  suppress 

insurrections  and  repel 1 

INVENTORS  AND  AUTHORS  in  their  inventions  and  writings.     Congress 

may  pass  laws  to  secure  for  limited  times  exclusive  rights  to 1 

INVOLUNTARY  SERVITUDE,  except  as  a  punishment  for  crime,  abolished 

in  the  United  States.     Slavery  and.     [Amendments] 13 

J. 

JEOPARDY  of  life  or  limb  for  the  same  offense.     No  person  shall  be  twice  put 

in.     [Amendments] 5 

JOURNAL  of  its  proceedings.     Each  House  shall  keep  a 1 

JUDGES  in  every  State  shall  be  bound  by  the  Constitution,  the  laws  made  in 
pursuance  thereof,  and  treaties  of  the  United  States,  which  shall  be  the 

supreme  law  of  the  land 6 

JUDGES  of  the  Supreme  and  inferior  courts  shall  hold  their  offices  during  good 

behavior 3 

Their  compensation  shall  not  be  diminished  during  their  continuance  in 

office 3 

JUDGMENT  in  cases  of  impeachment  shall  not  extend  further  than  to  removal 
from  office  and  disqualification  to  hold  any  office  of  honor,  trust,  or  profit 

under  the  United  States 1 

But  the  party  convicted  shall  nevertheless  be  liable  and  subject  to  indict- 
ment, trial,  judgment,  and  punishment  according  to  law 1 

JUDICIAL  POWER  OF  THE  UNITED  STATES.     Congress  shall  have  power 

to  constitute  tribunals  inferior  to  the  Supreme  Court 1 

The  judicial  power  of  the  United  States  shall  be  vested  in  one  Supreme  Court, 
and  in  such  inferior  courts  as  Congress  may  from  time  to  time  ordain  and 

establish 3 

The  judges  of  the  Supreme  and  inferior  courts  shall  hold  their  offices  during 

good  behavior 3 

Their  compensation  shall  not  be  diminished  during  their  continuance  in 

olfice 3 

It  shall  extend  to  all  cases  in  law  and  equity  arising  under  the  Constitution, 

laws,  and  treaties  of  the  United  States 3 

To  all  cases  affecting  ambassadors,  other  public  ministers  and  consuls 3 

To  all  cases  of  admiralty  and  maritime  jurisdiction 3 

To  controversies  to  which  the  United  States  shall  be  a  party 3 

To  controversies  between  two  or  more  States 3 

To  controversies  between  a  State  and  citizens  of  another  State 3 

To  controversies  between  citizens  of  different  States 3 

To  citizens  of  the  same  State  claiming  lands  under  grants  of  different  States. .         3 
To  controversies  between  a  State  or  its  citizens  and  foreign  states,  citizens,  or 

subjects 3 

In  all  cases  affecting  ambassadors,  other  public  ministers  and  consuls,  and 
those  in  which  a  State  shall  be  a  party,  the  Supreme  Court  shall  have 

original  jurisdiction 3 

In  all  other  cases  before  mentioned  it  shall  have  appellate  jurisdiction,  both 
as  to  law  and  fact,  with  such  exceptions  and  under  such  regulations  as 
Congress  shall  make 3 


Sec- 
tion. 


Clause. 


10 
9 


1 
1 

3 
3 


2 
2 
2 
2 
2 
2 
2 
2 


15 


7 
7 
9 


160 


Pt.l.  THE  CONSTITUTION.  Analytical  Index. 

Arti-    Sec-   pi-.jsp 
cle.    tion.  Clause. 

JUDICIAL  POWER  OF  THE  UNITED  STATES— Continued. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury- 3        2  3 

The  trial  shall  be  held  in  the  State  where  the  crimes  shall  have  been  com- 
mitted  .,...        3        2  3 

But  when  not  committed  in  a  State,  the  trial  shall  be  at  such  place  or  places 

as  Congress  may  by  law  have  directed 3        2  3 

The  judicial  power  of  the  United  States  shall  not  be  held  to  extend  to  any 
suit  in  law  or  equity  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State,  or  by  citizens  or  subjects  of  any  foreign 

state.     [Amendments] 11 

JUDICIAL  PROCEEDINGS  of  every  other  State.     Full  faith  and  credit  shall 

be  given  in  each  State  to  the  acts,  records,  and 4        1 

Congress  shall  prescribe  the  manner  of  proving  such  acts,  records,  and 

proceedings 4        1 

JUDICIAL  and  executive  officers  of  the  United  States  and  of  the  several  States 

shall  be  bound  by  an  oath  to  support  the  Constitution 6       ..  3 

JUDICIARY.  The  Supreme  Court  shall  have  original  jurisdiction  in  all  cases 
affecting  ambassadors,  other  public  ministers  and  consuls,  and  those  in 

which  a  State  may  be  a  party 3        2  2 

The  Supreme  Court  shall  have  appellate  jurisdiction  both  as  to  law  and  fact, 

with  such  exceptions  and  regulations  as  Congress  may  make 3        2  2 

JUNCTION  of  two  or  more  States  or  parts  of  States  without  the  consent  of  the 

legislatures  and  of  Congress.     No  State  shall  be  formed  by  the 4        3  1 

JURISDICTION  of  another  State.     No  new  State  shall  be  formed  or  erected 

within  the 4        3  1 

JURISDICTION,  both  as  to  law  and  fact,  with  such  exceptions  and  under  such 
regulations  as  Congress  may  make.  The  Supreme  Court  shall  have  appel- 
late  - 3        2  2 

JURISDICTION.  In  all  cases  affecting  ambassadors,  and  other  pubUc  ministers 
and  consuls,  and  in  cases  where  a  State  is  a  party,  the  Supreme  Court  shall 

have  original 3        2  2 

JURY.     The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 3        2  3 

In  all  criminal  prosecutions  the  accused  shall  have  a  speedy  and  public  trial 

by.     [Amendments] 6 

All  suits  at  common  law,  where  the  value  exceeds  twenty  dollars,  shall  be 

tried  by.     [Amendments] 7 

Where  a  fact  has  been  tried  by  a  jury  it  shall  not  be  reexamined  except  by 

the  rules  of  the  common  law.     [Amendments] 7 

JUST  COMPENSATION.     Private  property  shall  not  be  taken  for  public  use 

without.     [Amendments] 5 

JUSTICE,  insure  domestic  tranquillity,  etc.     To  establish.     [Preamble.] 

L. 

LABOR,  in  one  State,  escaping  into  another  State,  shall  be  delivered  up  to  the 

party  to  whom  such  service  or  labor  may  be  due.     Fugitives  from  service  or.        4        2  3 

LAND  and  naval  forces.  Congress  shall  make  rules  for  the  government  and  regu- 
lation of  the 1        8        14 

LAW  and  fact,  with  exceptions  and  under  regulations  to  be  made  by  Congress. 

The  Supreme  Court  shall  have  appellate  jurisdiction  as  to 3        2  2 

LAW  of  the  land.     The  Constitution,  the  laws  made  in  pursuance  thereof,  and 

treaties  of  the  United  States  shall  be  the  supreme 6      ..  2 

The  judges  in  every  State  shall  be  bound  thereby 6       ..  2 

LAW  of  nations.     Congress  shall  provide  for  punishing  offenses  against  the 1        8        10 

LAWS.  Congress  shall  have  power  to  provide  for  calling  forth  the  militia  to  sup- 
press insurrection,  repel  invasions,  and  to  execute  the 1        8        15 

161 


Analytical  Index.  Pt.l.  THE  CONSTITUTION. 

i,t   tlrn.  Clause. 

LAWS  AND  TREATIES  of  the  United  States.    The  judicial  power  shall  extend 

to  all  cases  in  law  and  equity  arising  under  the  Constitution  or  the 3        2  1 

LAWS  necessary  to  carry  into  execution  tne  powers  vested  in  the  Government, 
or  in  any  department  or  officer  of  the  United  States.  Congress  shall  have 
power  to  make  all 1        8        18 

LEGAL  TENDER  in  payment  of  debts.     No  State  shall  make  anything  but  gold 

and  silver  coin  a 1       10  1 

LEGISLATION  in  all  cases  over  such  district  aa  may  become  the  seat  of  govern- 
ment.    Congress  shall  have  power  to  exercise  exclusive 1        8        17 

Over  all  places  purchased  by  consent  of  the  legislatures  in  the  different  States 
for  the  erection  of  forts,  magazines,  arsenals,  dockyards,  and  other  needful 
buildings.     Congress  shall  have  power  to  exercise  exclusive 1        8        17 

LEGISLATION.  Congress  shall  have  power  to  make  all  laws  necessary  and 
proper  for  carrjdng  into  execution  all  the  powers  vested  by  the  Constitu- 
tion in  the  Government  of  the  United  States,  or  in  any  department  or  officer 

thereof 1        8        18 

Congress  shall  ha\-e  power  to  enforce  the  thirteenth  amendment  by  appro- 
priate.    [Amendments] 13        2 

Congress  shall  have  power  to  enforce  the  fourteenth  amendment  by  appro- 
priate.    [Amendments] 14        5 

Congress  shall  have  power  to  enforce  the  fifteenth  amendment  by  appropriate. 

[Amendments] 15        2 

LEGISLATIVE  powers  herein  granted  shall  be  vested  in  a  Congress.     All 1        1 

LEGISLATURE  OR  THE  EXECUTIVE  (when  the  legislature  can  not  be  con- 
vened). The  United  States  shall  protect  each  State  against  invasion;  and 
against  domestic  \iolence  on  the  application  of  the 4        4 

LEGISLATURES  of  two-thirds  of  the  States,  Congress  shall  call  a  convention  for 

proposing  amendments  to  the  Constitution.     On  the  application  of  the 5 

LETTERS  of  marque  and  reprisal.     Congress  shall  have  power  to  grant 1        8        11 

No  State  shall  grant 1      10  1 

LIBERTY  to  ourselves  and  our  posterity,  etc.  To  secure  the  blessings  of.  [Pre- 
amble.] 

LIFE,  LIBERTY,  AND  PROPERTY  without  due  process  of  law.  No  person 
shall  be  compelled  in  any  criminal  case  to  be  a  witness  against  himself, 

nor  be  deprived  of.     [Amendments] 5 

No  State  shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 

States,  nor  deprive  any  person  of.     [Amendments] 14        1 

LIFE  or  Umb  for  the  same  offense.     No  person  shall  be  twice  put  in  jeopardy  of. 

[Amendments] 5 

LOSS  or  emancipation  of  any  slave  shall  be  held  illegal  and  void.     Claims  for  the. 

[Amendments] 14        4 

M. 

MAGAZINES,  arsenals,  dockyards,  and  other  needful  buildings.     Congress  shall 

have  exclusive  authority  over  all  places  purchased  for  the  erection  of 1 

MAJORITY  of  each  House  shall  constitute  a  quorum  to  do  business.     A 1 

But  a  smaller  number  may  adjourn  from  day  to  day  and  may  be  authorized 
to  compel  the  attendance  of  absent  members 1 

MAJORITY  of  all  the  States  shall  be  necessary  to  a  choice 1 

When  the  choice  of  a  President  shall  devolve  on  the  House  of  Representa- 
tives, a  quorum  shall  consist  of  a  member  or  members  from  two-thirds  of 
the  States;  but  a.     [Amendments] 12 

MAJORITY.    When  the  choice  of  a  Vice  President  shall  devolve  on  the  Senate, 
a  quorum  shall  consist  of  two-thirds  of  the  whole  number  of  Senators,  and  a 
majority  of  the  whole  number  shall  be  necessary  to  a  choice.     [Amend- 
ments]        12 

162 


8 

17 

5 

1 

5 

1 

5 

1 

Pt.l.   THE  CONSTITUTION.  Analytical  Index. 


Arti-    Sec- 
cle.     tion. 


Clause. 


MANUFACTURE  of  intoxicating  liquors  for  beverage   purposes    prohibited. 

[Amendments] 18        1 

MARITIME  JURISDICTION.    The  judicial  power  shall  extend  to  all  cases  of 

admiralty  and 3        2  1 

MARQUE  and  reprisal.     Congress  shall  have  power  to  grant  letters  of 1        8        11 

No  State  shall  grant  any  letters  of 1       10  1 

MARYLAND  entitled  to  six  Representatives  in  the  First  Congress 1        2  3 

MASSACHUSETTS  entitled  to  eight  Representatives  in  the  First  Congress 1        2  3 

MEASURES.     Congress  shall  fix  the  standard  of  weights  and 1        8  5 

MEETING  OF  CONGRESS.     The  Congress  shall  assemble  at  least  once  in 
every  year,  and  such  meeting  shall  be  on  the  first  Monday  in  December, 

unless  they  shall  by  law  appoint  a  different  day 14  2 

MEMBERS  of  Congress  and  of  State  legislatures  shall  be  bound  by  oath  or  affirma- 
tion to  support  the  Constitution 6       . .  3 

MILITIA  to  execute  the  laws,  suppress  insurrections,  and  repel  invasions.     Con- 
gress shall  provide  for  calling  forth  the 1        8        15 

Congress  shall  provide  for  organizing,  arming,  and  disciplining  the 1        8        16 

Congress  shall  provide  for  governing  such  part  of  them  as  may  be  employed 

by  the  United  States 1        8        16 

Reserving  to  the  States  the  appointment  of  the  officers  and  the  right  to  train 

the  militia  according  to  the  discipline  prescribed  by  Congress 1        8        16 

A  well-regulated  militia  being  necessary  to  the  security  of  a  free  State,  the 
right  of  the  people  to  keep  and  bear  arms  shall  not  be  infringed .  [Amend- 
ments]          2 

MISDEMEANORS.    The  President,  Vice  President,  and  all  civil  officers  shall 
be  removed  on  impeachment  for  and  conviction  of  treason,  bribery,  or 

other  high  crimes  and 2        4 

MONEY  on  the  credit  of  the  United  States.     Congress  shall  ha^'e  power  to  borrow.         18  2 

Regulate  the  value  thereof  and  of  foreign  coin.     Congress  shall  have  power  to 

coin 18  5 

Shall  be  drawn  from  the  Treasury  but  in  consequence  of  appropriations  made 

bylaw.     No 19  7 

Shall  be  published  from  time  to  time.    A  regular  statement  and  account  of 

receipts  and  expenditures  of  public 1        9  7 

For  raising  and  supporting  armies.  No  appropriation  of  money  shall  be  for 
a  longer  term  than  two  years 1        8        12 

N. 

NATIONS.     Congress  shall  have  power  to  regulate  commerce  with  foreign 18  3 

Congress  shall  provide  for  punishing  offenses  against  the  law  of 1  8  10 

NATURAL-BORN  CITIZEN,  or  a  citizen  at  the  adoption  of  the  Constitution, 

shall  be  eligible  to  the  office  of  President.     No  person  except  a 2  14 

NATURALIZATION.     Congress  shall  have  power  to  establish  a  uniform  rule  of.  18  4 
NATURALIZED  in  the  United  States,  and  subject  to  their  jurisdiction,  shall  be 
citizens  of  the  United  States  and  of  the  State  in  which  they  reside.     All 

persons  born  or.     [Amendments] 14  1 

NAVAL  FORCES.     Congress  shall  make  rules  and  regulations  for  the  govern- 
ment and  regulation  of  the  land  and 1  8  14 

NAVY.     Congress  shall  have  power  to  provide  and  maintain  a 1  8  13 

NEW  HAMPSIII  RE  entitled  to  three  Representatives  in  the  First  Congress 1  2  3 

NEW  JERSEY  entitled  to  four  Representatives  in  the  First  Congress 1  2  3 

NEW  STATES  may  be  admitted  by  Congress  into  this  Union 4  3  1 

But  no  new  State  shall  be  formed  within  the  jurisdiction  of  another  State 4  3  1 

Nor  shall  any  State  be  formed  by  the  junction  of  two  or  more  States,  or  parts 

of  States,  without  the  consent  of  the  legislatures  and  of  Congress 4  3  1 

NEW  YORK  entitled  to  six  Representatives  in  the  First  Congress 1  2  3 

163 


Analytical  Index.  Pt.  1.    THE  CONSTITUTION. 

Arti-     Sec-    clause 
cle.     tion.  *^^^^- 

NOBILITY  shall  be  graiittnl  by  the  United  States.     No  title  of 1         9  8 

No  State  shall  grant  any  title  of 1       10  1 

NOMINATIONS  FOR  OFFICE  by  the  President.  The  President  diall  nomi- 
nate, and,  by  and  ^nth  the  advice  and  consent  of  the  Senate,  shall  appoint 

ambassadors  and  other  public  officers 2        2  2 

He  may  grant  commissions  to  fill  vacancies  that  happen  in  the  recess  of  the 
Senate,  ■which  shall  expire  at  the  end  of  their  next  session 2        2  3 

NORTH  CAROLINA  entitled  to  five  Representatives  in  the  First  Congress 1        2  3 

NUMBER  OF  ELECTORS  for  President  and  Vice  President  in  each  State  shall 
be  equal  to  the  number  of  Senators  and  Representatives  to  which  such 
State  may  be  entitled  in  Congress 2        1  2 

O. 

OATH  OF  OFFICE  of  the  President  of  the  United  States.     Form  of  the 2        1  7 

OATH  OR  AFFIRMATION.     No  warrants  shall  be  issued  but  upon  probable 

cause,  supported  by.     [Amendments] 4 

OATH  OR  AFFIRMATION  to  support  the  Constitution.     Senators  and  Repre- 
sentatives, members  of  State  legislatures,  executive  and  judicial  officers 

of  the  United  States  and  of  the  several  States,  shall  be  bound  by 6       . .  3 

But  no  religious  test  shall  ever  be  required  as  a  qualification  for  office 6       ..  3 

The  Senators  when  sitting  to  try  impeachment  shall  be  on 1        3  6 

OBJECTIONS.     If  he  shall  not  approve  it,  the  President  shall  return  the  bill  to 

the  House  in  which  it  originated  with  his 1        7  2 

OBLIGATION  OF  CONTRACTS.     No  State  shall  pass  any  ex  post  facto  law,  or 

law  impairing  the 1       10  1 

OBLIGATIONS  incurred  in  aid  of  insurrection  or  rebellion  against  the  United 

States  to  be  held  illegal  and  void.     All  debts  or.     [Amendments] 14        4 

OFFENSE.     No  person  shall  be  twice  put  in  jeopardy  of  life  or  limb  for  the  same. 

[Amendments] 5 

OFFENSES  against  the  law  of  nations.     Congress  shall  provide  for  punishing. .         1        8        10 

OFFENSES  against  the  United  States,  except  in  cases  of  impeachment.     The 

President  may  grant  reprieves  or  pardons  for 2        2  1 

OFFICE  under  the  United  States.     No  person  shall  be  a  member  of  either  House 

while  holding  any  ci\il 1        6  2 

No  Senator  or  Representative  shall  be  appointed  to  any  office  under  the 
United  States  which  shall  have  been  created,  or  its  emoluments  increased, 

during  the  term  for  which  he  is  elected 1        6  2 

Or  title  of  any  kind  from  any  king,  prince,  or  foreign  State,  without  the  con- 
sent of  Congress.  No  person  holding  any  office  under  the  United  States 
shall  accept  of  any  present,  emolument 1        9  8 

OFFICE  of  President,  in  case  of  his  removal,  death,  resignation,  or  inability, 

shall  devolve  on  the  Vice  President.     The  powers  and  duties  of  the 2        15 

OFFICE  during  the  term  of  four  years.     The  President  and  Vice  President  shall 

hold 2        11 

Of  trust  or  profit  under  the  United  States  shall  be  an  elector  for  President 
and  Vice  President.     No  person  holding  an 2        12 

OFFICE,  civil  or  military  imder  the  United  States,  or  any  State,  who  had  taken 
an  oath  as  a  legislative,  executive,  or  judicial  officer  of  the  United  States, 
or  of  any  State,  and  afterwards  engaged  in  insurrection  or  rebellion.  No 
person  shall  be  a  Senator,  Representative,  or  Presidential  elector,  or  hold 
any.     [Amendments] 14        3 

OFFICERS  in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads  of  Depart- 
ments.    Congress  may  vest  the  appointment  of  inferior 2        2  2 

OFFICERS  of  the  United  States  shall  be  removed  on  impeachment  for  and  con- 
\iction  of  treason,  bribery,  or  other  high  crimes  and  misdemeanors.  The 
President,  Vice-President,  and  all  civil 2        4 

164 


Pt.l.   THE  CONSTITUTION.  Analytical  Index. 

Arti-    Sec-    pi„,,,_ 
cle.     tion.   ^'a^se. 

OFFICERS.     The  House  of  Representatives  shall  choose  their  Speaker  and 

other 12  5 

The  Senate,  in  the  absence  of  the  Vice-President,  shall  choose  a  President 

pro  tempore,  and  also  their  other 1        3  5 

OFFICES  becoming  vacant  in  the  recess  of  the  Senate  may  be  filled  by  the 

President,  the  commissions  to  expire  at  the  end  of  the  next  session 2        2  3 

ONE-FIFTH  of  the  members  present,  be  entered  on  the  journal  of  each  House. 

The  yeas  and  nays  shall,  at  the  desire  of 1        5  3 

OPINION  of  the  principal  officers  in  each  of  the  Executive  Departments  on  any 

subject  relating  to  their  duties.     The  President  may  require  the  written.  .22  1 

ORDER,  resolution,  or  vote  (except  on  a  question  of  adjournment),  requiring 

the  concurrence  of  the  two  Houses,  shall  be  presented  to  the  President. 

Every 17         3 

ORIGINAL  JURISDICTION  in  all  cases  affecting  ambassadors,  other  public 

ministers  and  consuls,  and  in  which  a  State  may  be  a  party.     The  Supreme 

Court  shall  have 3        2  2 

OVERT  ACT,  or  on  confession  in  open  court.     Conviction  of  treason  shall  be  on 

the  testimony  of  two  witnesses  to  the 3        3  1 

P. 

PARDONS,  except  in  cases  of  impeachment.     The  President  may  grant  reprieves 

and 2        2  1 

PATENT  RIGHTS  to  inventors.     Congress  may  pass  laws  for  securing 1        8  8 

PEACE.     Members  of  Congress  shall  not  be  privileged  from  arrest  for  treason, 

felony,  and  breach  of  the 1        6  1 

No  State  shall,  without  the  consent  of  Congress,  keep  troops  or  ships  of  war 

in  time  of 1      10  3 

No  soldier  shall  be  quartered  in  any  house  without  the  consent  of  the  owner 
in  time  of.     [Amendments] 3 

PENSIONS  AND  BOUNTIES,  shall  not  be  questioned.  The  validity  of  the 
public  debt  incurred  in  suppressing  insurrection  and  rebellion  against  the 
United  States,  including  the  debt  for.     [Amendments] 14        4 

PENNSYLVANIA  entitled  to  eight  Representatives  in  the  first  Congress 1        2 

PEOPLE  peaceably  to  assemble  and  petition  for  redress  of  giievances  shall  not 

be  abridged  by  Congress.     The  right  of  the.     [Amendments] 1 

To  keep  and  bear  arms  shall  not  be  infringed.     A  well-regulated  militia  being 

necessary  to  the  security  of  a  free  State,  the  right  of  the.     [Amendments] ...         2 
To  be  secure  in  their  persons,  houses,  papers,  and  effects  against  unreason- 
able searches  and  seizures  shall  not  be  violated.     The  right  of  the.    [Amend- 
ments]          4 

The  enumeration  of  certain  rights  in  the  Constitution  shall  not  be  held  to 

deny  or  disparage  others  retained  by  the.     [Amendments] 9 

Powers  not  delegated  to  the  United  States,  nor  prohibited  to  the  States,  are 
reserved  to  the  States  or  to  the.     [Amendments] 10 

PERFECT  UNION,  ETC.     To  establish  a  more.     [Preamble.] 

PERSONS,  HOUSES,  PAPERS,  and  effects  against  unreasonable  searches  and 

seizures.     The  people  shall  be  secure  in  their.     [Amendments] 4 

PERSONS  as  any  State  may  think  proper  to  admit,  shall  not  be  prohibited  prior 

to  1808.     The  migration  or  importation  of  such 19  1 

But  a  tax  or  duty  of  ten  dollars  shall  be  imposed  on  the  importation  of  each 
of  such 19  1 

PETITION  for  the  redress  of  grievances.     Congress  shall  make  no  law  abridging 

the  right  of  the  people  peaceably  to  assemble  and  to.     [Amendments] 1 

PIRACIES  AND  FELONIES  committed   on   the    high    seas.     Congress   shall 

define  and  punish 1        8        10 

165 


Analytical  Index.  Pi.  1.   THE  CONSTITUTION. 

Arti-    Sec-    /^i„„„ 
cle.     tion.  Clause. 

PLACE  than  that  in  which  the  tAvo  Houses  shall  be  sitting.  Neither  House  dur- 
ing the  session  shall,  without  the  consent  of  the  other,  adjourn  for  more 

than  three  days,  nor  to  any  other 1        5  4 

PLACES  OF  CHOOSING  SENATORS.  Congress  may  by  law  make  or  alter 
regulations  for  the  election  of  Senators  and  Representatives,  except  as  to 

the 14  1 

PORTS  of  one  State  over  those  of  another.     Preference  shall  not  be  given  by  any 

regulation  of  commerce  or  revenue  to  the 1        9  6 

PORTS.     Vessels  clearing  from  the  ports  of  one  State  shall  not  pay  duties  in 

another 19  6 

POST-OFFICES  AND  POST-ROADS.     Congress  shall  establish 18  7 

POWERS  herein  granted  shall  be  vested  in  Congress.     All  legislative 1        1 

POWIERS  vested  by  the  Constitution  in  the  Government  or  in  any  Department 
or  officer  of  the  United  States.     Congress  shall  make  all  laws  necessary  to 

carry  into  execution  the .- 1        8        18 

POWERS  and  duties  of  the  office  shall  devolve  on  the  Vice-President  on  the 

removal,  death,  resignation,  or  inability  of  the  President.     The 2        1  5 

POWERS  not  delegated  to  the  United  States  nor  prohibited  to  the  States  are 

reserv^ed  to  the  States  and  to  the  people.     [Amendments] 10 

The  enumeration  of  certain  rights  in  this  Constitution  shall  not  be  held  to 

deny  or  disjjarage  others  retained  by  the  people.     [Amendments] 9 

PREFERENCE,  by  any  regulation  of  commerce  or  revenue,  shall  not  be  given  to 

the  ports  of  one  State  over  those  of  another 1        9  6 

PREJUDICE  any  claims  of  the  United  States  or  of  any  particular  State  respecting 
the  territory  or  property  of  the  United  States.     Nothing  in  this  Constitution 

shall 4        3  2 

PRESENT,  emolument,  office,  or  title  of  any  kind  whatever  from  any  king, 
prince,  or  foreign  State.     No  person  holding  any  office  under  the  United 

States  shall,  without  the  consent  of  Congress,  accept  any 19  8 

PRESENTMENT  or  indictment  of  a  grand  jur>%  except  in  cases  arising  in  the 
land  or  naval  forces  or  in  the  militia  when  in  actual  service.  No  person 
shall  be  held  to  answer  for  a  capital  or  otherwise  infamous  crime  unless  on  a. 

[Amendments] 5 

PRESIDENT  OF  THE  UNITED  STATES.  The  Senate  shall  choose  a  Presi- 
dent pro  tempore  when  the  Vice-President  shall  exercise  the  office  of 1        3  5 

The  Chief  Justice  shall  preside  upon  the  trial  of  the 13  6 

Shall  approve  and  sign  all  bills  passed  by  Congress  before  they  shall  become 

laws j.        7  2 

Shall  return  to  the  House  in  which  it  originated,  with  his  objections,  any  bill 

which  he  shall  not  approve 1        7  2 

If  not  returned  within  ten  days  (Sundays  excepted)  it  shall  become  a  law, 

unless  Congress  shall  adjourn  before  the  expiration  of  that  time 17  2 

Every  order,  resolution,  or  vote  which  requires  the  concurrence  of  both 

Houses,  except  on  a  question  of  adjournment,  shall  be  presented  to  the 1        7  3 

If  disapproved  by  him,  shall  be  returned  and  proceeded  on  as  in  the  case  of  a 

bill 1        7  3 

The  executive  power  shall  be  vested  in  a 2        1  1 

He  shall  hold  his  office  during  the  term  of  four  years 2        1  1 

In  case  of  the  removal  of  the  President  from  office,  or  of  his  death,  resignation, 
or  inability  to  discharge  the  duties  of  his  office,  the  Vice-President  shall 

perform  the  duties  of 2        1  5 

Congress  may  declare,  by  law,  in  the  case  of  the  removal,  death,  resignation, 

or  inability  of  the  President,  what  officer  shall  act  as 2        1  5 

The  President  shall  receive  a  compensation  which  shall  not  be  increased  nor 
diminished  during  his  term,  nor  shall  he  receive  any  other  emolument 
from  the  United  States 2        16 

166 


Pt.l.  THE  CONSTITUTION.  Analytical  Index. 

Arti-    Sec-    r..^^^ 
cle.     tion.   ^'^use. 

PRESIDENT  OF  THE  UNITED  STATES— Continued. 

Before  he  enters  upon  the  execution  of  hia  office  he  shall  take  an  oath  of 
office 2        1  7 

Shall  be  Commander  in  Chief  of  the  Army  and  Navy,  and  of  the  militia  of  the 
States  when  called  into  actual  service 2        2  1 

He  may  require  the  opinion,  in  vsTiting,  of  the  principal  officer  in  each  of  the 

Executive  Departments 2        2  1 

He  may  grant  reprieves  or  pardons  for  offenses,  except  in  cases  of  impeach- 
ment         2        2  1 

He  may  make  treaties,  by  and  vsdth  the  advice  and  consent  of  the  Senate, 
two-thirds  of  the  Senators  present  concurring 2        2  2 

He  may  appoint,  by  and  with  the  advice  and  consent  of  the  Senate,  ambassa- 
dors, other  public  ministers  and  consuls,  judges  of  the  Supreme  Court,  and 
all  other  officers  whose  appointments  may  be  authorized  by  law  and  not 
herein  provided  for 2        2  2 

Congress  may  vest  the  appointment  of  inferior  officers  in  the 2        2  2 

He  may  fill  up  all  vacancies  that  may  happen  in  the  recess  of  the  Senate  by 

commissions  which  shall  expire  at  the  end  of  their  next  session 2        2  3 

He  shall  give  information  to  Congress  of  the  state  of  the  Union,  and  recom- 
mend measures 2        3 

On  extraordinary  occasions  he  may  convene  both  Houses  or  either  House  of 

Congress 2        3 

In  case  of  disagreement  between  the  two  Houses  as  to  the  time  of  adjoiu"n- 
ment,  he  may  adjourn  them  to  such  time  as  he  may  think  proper 2        3 

He  shall  receive  ambassadors  and  other  public  ministers 2        3 

He  shall  take  care  that  the  laws  be  faithfully  executed 2        3 

He  shall  commission  all  the  officers  of  the  United  States 2        3 

Shall  be  removed  from  office  on  impeachment  for,  and  conviction  of,  treason, 
bribery,  or  other  high  crimes  and  misdemeanors 2        4 

No  person  except  a  natural-born  citizen  or  a  citizen  of  the  United  States  at  the 
adoption  of  the  Constitution  shall  be  eligible  to  the  office  of 2        1  4 

No  person  who  shall  not  ha^-e  attained  the  age  of  thirty-five  years  and  been 
fourteen  years  a  citizen  of  the  United  States  shall  be  eligible  to  the  office  of . .        2        1  4 

PRESIDENT  AND  VICE-PRESIDENT.  MANNER  OF  CHOOSING.  Each 
State,  by  its  legislature,  shall  appoint  a  number  of  electors  equal  to  the 
whole  number  of  Senators  and  Representatives  to  which  the  State  may  be 
entitled  in  the  Congress 2        1  2 

No  Senator  or  Representative  or  person  holding  an  office  of  trust  or  profit 
under  the  United  States  shall  be  an  elector 2        1  2 

Congress  may  determine  the  time  of  choosing  the  electors  and  the  day  on 
which  they  shall  give  their  votes,  which  day  shall  be  the  same  throughout 
the  United  States 2        13 

The  electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  Presi- 
dent and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant 
of  the  same  State  with  themselves.     [Amendments] 12 

They  shall  name  in  distinct  ballots  the  person  voted  for  as  President  and  the 
person  voted  for  as  Vice-President.     [Amendments] 12 

They  shall  make  distinct  lists  of  the  persons  voted  for  as  President  and  as 
Vice-President,  which  they  shall  sign  and  certify  and  transmit  sealed  to 
the  President  of  the  Senate  at  the  seat  of  government.     [Amendments]..       12 

The  President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  certificates,  and  the  votes  shall  then  be 
counted.     [Amendments] 12 

The  person  ha\dng  the  greatest  number  of  votes  shall  be  the  President,  if 
such  numl)er  be  a  majority  of  the  whole  number  of  electors  appointed. 
[Amendments] 12 

167 


Analytical  Index.  Ft.  l.  THE  CONSTITUTION. 


Arti-    Sec-   oin..^^ 
cle.     tion.  ^^"^«- 


PRESIDENT  AND  VICE  PRESIDENT.     MANNER  OF  CHOOSING— Con. 

If  no  person  have  such  majority,  tlien  from  the  persons  having  the  highest 

numbers,  not  exceeding  three,  on  the  list  of  those  voted  for  aa  President, 

the  House  of  Representatives  shall  choose  immediately,  by  ballot,  the 

President.     [Amendments] 12 

In  choosing  the  President,  the  votes  shall  be  taken  by  States,  the  representa- 
tion from  each  State  having  one  vote.     [Amendments] 12 

A  quorum  for  this  purpose  shall  consist  of  a  member  or  members  from  two- 
thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be  necessary  to  a 

choice.     [Amendments] 12 

But  if  no  choice  shall  be  made  before  the  4th  of  March  next  following,  then 
the  Vice-President  shall  act  as  President,  as  in  the  case  of  the  death  ordie- 

abiUty  of  the  President.     [Amendments] 12 

PRESIDENT  OF  THE  SENATE,  but  shall  have  no  vote  unless  the  Senate  be 

equally  di\-ided.     The  Vice-President  shall  be 13  4 

PRESIDENT  PRO  TEMPORE.     In  the  absence  of  the  Vice-President  the 

Senate  shall  choose  a 1        3  5 

When  the  Vice-President  shall  exercise  the  office  oi  President  of  the  United 

States,  the  Senate  shall  choose  a 1        3  5 

PRESS.    Congress  shall  pass  no  law  abridging  the  freedom  of  speech  or  of  the. 

[Amendments] 1 

PREVIOUS  CONDITION  OF  SERVITUDE.  The  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged  by  the  United  States, 

or  by  any  State,  on  account  of  race,  color,  or.     [Amendments] 15        1 

PRIVATE  PROPERTY  shall  not  be  taken  for  public  use  without  just  compen- 
sation.    [Amendments] 5 

PRIVILEGE.  Senators  and  Representatives  shall,  in  all  cases  except  treason, 
felony,  and  breach  of  the  peace,  be  privileged  from  arrest  during  their 
attendance  at  the  session  of  their  respective  Houses,  and  in  going  to  and 

returning  from  the  same 1        6  1 

They  shall  not  be  questioned  for  any  speech  or  debate  in  either  House  in  any 

other  place 16  1 

PRIVILEGES  AND  IMMUNITIES  OF  CITIZENS  OF  THE  UNITED 
STATES.    The  citizens  of  each  State  shall  be  entitled  to  all  the  privileges 

and  immunities  of  the  citizens  of  the  several  States 4        2  1 

No  soldier  shall  be  quartered  in  any  house  without  the  consent  of  the  owner 

in  time  of  peace.     [Amendments] 3 

No  person  shall  be  twice  put  in  jeopardy  of  life  or  Umb  for  the  same  offense. 

[Amendments] 5 

All  persons  born  or  naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of  the  State  in  which 

they  reside.     [Amendments] 14        1 

No  State  shall  make  or  enforce  any  law  which  shall  abridge  the.     [Amend- 
ments]         14        1 

No  State  shall  deprive  any  person  of  life,  liberty,  or  property  without  due 

process  of  law.     [Amendments] 14        1 

Nor  deny  to  any  person  within  its  jurisdiction  the  equal  protection  of  its  laws. 

[Amendments] 14        1 

PRIZES  captured  on  land  or  water.     Congress  shall  make  rules  concerning 1        8        11 

PROBABLE  CAUSE.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects  against  unreasonable  searches  and  seizures  shall 
not  be  violated,  and  no  warrant  shall  issue  for  such  but  upon.  [Amend- 
ments]           4 

PROCESS  OF  LAW.  No  person  shall  be  compelled  in  any  criminal  case  to  be 
a  witness  against  himself ,  nor  be  deprived  of  life,  liberty,  or  property  with- 
out due.     [Amendments] 5 

168 


Pt.  1.   THE  CONSTITUTION.  Analytical  Index. 

,  Artl-    Sec-   (.,„„„„ 

cle.     tion.  ^^ause. 

PROCESS  OF  LAW.     No  State  shall  deprive  any  person  of  life,  liberty,  or 

property  without  due.     [Amendments] 14        1 

PROCESS  for  obtaining  witnesses  in  his  favor.     In  all  criminal  prosecutions  the 

accused  shall  have.     [Amendments] 6 

PROGRESS  of  science  and  useful  arts.     Congress  shall  have  power  to  promote 

the 18  8 

PROHIBITION  of  intoxicating  liquors  for  beverage  purposes.     [Amendments].       18        1 

PROPERTY  of  the  United  States.     Congress  may  dispose  of  and  make  all  needful 

rules  and  regulations  respecting  the  territory  or 4        3  2 

PROPERTY  without  due  process  of  law.  No  person  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself;  nor  shall  he  be  deprived  of 

his  life,  liberty,  or.     [Amendments] 5 

No  State  shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 

States,  nor  deprive  any  person  of  his  life,  liberty,  or.     [Amendments] ....       14        1 

PROSECUTIONS.     The  accused  shall  have  a  speedy  and  public  trial  in  all 

criminal.     [Amendments] 6 

He  shall  be  tried  by  a  jury  in  the  State  or  district  where  the  crime  was  com- 
mitted.    [Amendments] 6 

He  shall  be  informed  of  the  nature  and  cause  of  the  accusation.     [Amend- 
ments]          6 

He  shall  be  confronted  with  the  witnesses  against  him.     [Amendments] 6 

He  shall  have  compulsory  process  for  obtaining  witnesses.     [Amendments]..         6 
He  shall  have  counsel  for  his  defense.     [Amendments] 6 

PROTECTION  of  the  laws.  No  State  shall  deny  to  any  person  within  its  juris- 
diction the  equal.     [Amendments] 14         1 

PUBLIC  DEBT  of  the  United  States  incurred  in  suppressing  insurrection  or 

rebellion  shall  not  be  questioned.     The  validity  of  the.     [Amendments].       14        4 

PUBLIC  SAFETY  may  require  it.  The  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when  in  cases  of  rebellion  or  invasion  the 19  2 

PUBLIC  TRIAL  by  jury.     In  all  criminal  prosecutions  the  accused  shall  have 

a  speedy  and.     [Amendments] 6 

PUBLIC  USE.  Private  property  shall  not  be  taken  for,  without  just  compen- 
sation.    [Amendments] 5 

PUNISHMENT  according  to  law.  Judgment  in  cases  of  impeachment  shall  not 
extend  further  than  to  removal  from,  and  disqualification  for,  office;  but 
the  party  convicted  shall  nevertheless  be  liable  and  subject  to  indictment, 
trial,  judgment,  and 1        3  7 

PUNISHMENTS  inflicted.     Excessive  bail  shall  not  be  required  nor  excessive 

fines  imposed  nor  cruel  and  unusual.     [Amendments] 8 

Q. 

QUALIFICATION  FOR  OFFICE.     No  religious  test  shall  ever  be  required 

as  a 6       . .  3 

QUALIFICATIONS  of  electors  of  Members  of  the  Senate  shall  be  the  same  aa 
electors  for  the  most  numerous  branch  of  the  State  legislature.  The  seven- 
teenth amendment.     [Amendments] 17 

QUALIFICATIONS  of  electors  of  Members  of  the  House  of  Representatives 
shall  be  the  same  as  electors  for  the  most  numerous  branch  of  the  State 
legislature 1        2  1 

QUALIFICATIONS  of  Members  of  the  House  of  Representatives.  They  shall 
be  25  years  of  age,  7  years  a  citizen  of  the  United  States,  and  an  inhabitant 
of  the  State  in  which  chosen 1        2  2 

QUALIFICATIONS  of  Senators.     They  shall  be  30  years  of  age,  9  years  a  citizen 

of  the  United  States,  and  an  inhabitant  of  the  State  in  which  chosen.  .13  3 

Of  its  own  Members.     Each  House  shall  be  the  judge  of  the  election,  returns, 
and 15  1 

169 


Analytical  Index.  Pt.  1.   THE  CONSTITUTION. 

,  Arti-    Sea 


cle.    tion.    Clause. 


QUALIFICATIONS  of  the  President.  No  person  except  a  natural-born  citizen, 
or  a  citizen  of  the  United  States  at  the  time  of  the  adoption  of  the  Consti- 
tution, shall  be  eligible  to  the  office  of  President 2 

Neither  shall  any  person  be  eligible  to  the  office  of  President  who  shall  not 
have  attained  the  age  of  35  years,  and  been  14  years  a  resident  within  the 

United  States 2 

Of  the  Vice  President.  No  person  constitutionally  ineligible  to  the  office 
of  President  shall  be  eligible  to  that  of  Vice  President.     [Amendments]  12 

QUARTERED  in  any  house  without  the  consent  of  the  owner  in  time  of  peace. 

No  soldier  shall  be.     [Amendments] 3 

QUORUM  to  do  business.     A  majority  of  each  House  shall  constitute  a 1 

But  a  smaller  number  than  a  quorum  may  adjourn  from  day  to  day,  and  may 

be  authorized  to  compel  the  attendance  of  absent  Members 1 

Of  the  House  of  Representatives  for  choosing  a  President  shall  consist  of  a 
Member  or  Members  from  two-thirds  of  the  States,  and  a  majority  of  all 

the  States  shall  be  necessary  to  a  choice.     [Amendments] 12 

QUORUM  to  elect  a  Vice  President  by  the  Senate.     Two- thirds  of  the  whole 

number  of  Senators  shall  be  a.     [Amendments] 12 

A  majority  of  the  whole  number  shall  be  necessary  to  a  choice.  [Amend- 
ments]         12 

R. 

RACE,  color,  or  previous  condition  of  servitude.  The  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged  by  the  United 
States  or  by  any  State  on  account  of.     [Amendments] 15 

RATIFICATION  of  amendments  to  the  Constitution  shall  be  by  the  legislatures 
of  three-fourths  of  the  several  States  or  by  conventions  in  three-fourths  of 

the  States,  accordingly  as  Congress  may  propose 5 

Of  the  conventions  of  nine  States  shall  be  sufficient  to  establish  the  Con- 
stitution between  the  States  so  ratifying  the  same 7 

RATIO  of  representation  until  the  first  enumeration  under  the  Constitution 

shall  be  made  not  to  exceed  one  for  every  thirty  thousand 1 

RATIO  of  representation  shall  be  apportioned  among  the  several  States  according 
to  their  respective  numbers,  counting  the  whole  number  of  persons  in  each 
State,  excluding  Indians  not  taxed.     [Amendments] 14 

RATIO.  But  when  the  right  to  vote  for  presidential  electors  or  Members  of  Con- 
gress, or  the  legislative,  executive,  and  judicial  officers  of  the  State,  except 
for  engaging  in  rebellion  or  other  crime,  shall  be  denied  or  abridged  by  a 
State,  the  basis  of  representation  shall  be  reduced  therein  in  the  proportion 
of  such  denial  or  abridgment  of  the  right  to  vote.     [Amendments] 14 

REBELLION  against  the  United  States.  Persons  who,  while  holding  certain 
Federal  and  State  offices,  took  an  oath  to  support  tlie  Constitution,  after- 
wards engaged  in  insurrection  or  rebellion,  disabled  from  holding  office 

under  the  United  States.     [Amendments.] 14 

But  Congress  may  by  a  vote  of  two-thirds  of  each  House  remove  such  disa- 
bility.    [Amendments] 14 

REBELLION  against  the  United  States.  Debts  incurred  for  pensions  and  boun- 
ties for  services  in  suppressing  the  rebellion  shall  not  be  questioned. 

[Amendments] 14 

All  debts  and  obligations  incurred  in  aid  of  the  rebellion,  and  all  claims  for 
the  loss  or  emancipation  of  slaves,  declared  and  held  to  be  illegal  and  void. 
[Amendments] 14 

REBELLION  or  invasion.     The  writ  of  habeas  corpus  shall  not  be  suspended 

except  when  the  public  safety  may  require  it  in  cases  of 1 

RECEIPTS  and  expenditures  of  all  public  money  shall  be  published  from  time 

to  time.    A  regular  statement  of 1 

170 


Pt.l.   THE  CONSTITUTION.  Analytical  Index , 

Arti-    Sec-    p,„,,,„ 
cle.    tion.  ^'^'^se. 

RECESS  OF  THE  SENATE.  The  President  may  grant  commissions,  which 
shall  expire  at  the  end  of  the  next  session,  to  fill  vacancies  that  may  happen 

during  the 2        2  3 

RECONSIDERATION  of  a  bill  returned  by  the  President  with  his-  objections. 

Proceedings  to  be  had  upon  the 1        7  2 

RECORDS,  and  judicial  proceedings  of  every  other  State.     Full  faith  and  credit 

shall  be  given  in  each  State  to  the  acta 4        1 

Congress  shall  prescribe  the  manner  of  proving  such  acts,  records,  and  pro- 
ceedings          4        1 

REDRESS  OF  GRIEVANCES.  Congress  shall  make  no  law  abridging  the 
right  of  the  people  peaceably  to  assemble  and  to  petition  for  the.  [Amend- 
ments]          1 

REGULATIONS,  except  as  to  the  places  of  choosing  Senators.  The  time,  places, 
and  manner  of  holding  elections  for  Senators  and  Representatives  shall  be 
prescribed  by  the  legislatures  of  the  States,  but  Congress  may  at  any  time 

by  law  make  or  alter  such 14  1 

REGULATIONS  of  commerce  or  revenue.    Preference  to  the  ports  of  one  State 

over  those  of  anotlier  shall  not  be  given  by  any 19  6 

RELIGION  or  prohibiting  the  free  exercise  thereof.     Congress  shall  make  no 

law  respecting  the  establishment  of.     [Amendments] 1 

RELIGIOUS  test  shall  ever  be  required  as  a  qualification  for  any  oflace  or  public 

trust  under  the  L'nited  States.     No 6       ..  3 

REMOVAL  of  the  President  from  office,  the  same  shall  devolve  on  the  Vice- 
President.     In  case  of  the 2        15 

REPRESENTATION.    No  State,  without  its  consent,  shall  be  deprived  of  its 

equal  suffrage  in  the  Senate 5 

REPRESENTATION  and  direct  taxation,  how  apportioned  among  the  several 
States.  [Tliis  pro^i8ion  is  changed  by  the  fourteenth  amendment,  sec- 
tion 2] 12  3 

REPRESENTATION  until  the  first  enumeration  under  the  Constitution  not  to 

exceed  one  for  every  thirty  thousand.     The  ratio  of 12  3 

REPRESENTATION  in  any  State.     The  executive  thereof  shall  issue  writs  of 

election  to  fill  vacancies  in  the 1        2         4 

REPRESENTATION  among  the  several  States  shall  be  according  to  their  re- 
spective numbers,  counting  the  whole  number  of  persons  in  each  State, 

excluding  Indians  not  taxed.     The  ratio  of.     [Amendments] 14        2 

But  where  the  right  to  vote  in  certain  Federal  and  State  elections  is  abridged 
for  any  cause  other  than  rebellion  or  other  crime  the  baaia  of  representation 

shall  be  reduced.     [Amendments] 14        2 

REPRESENTATIVES.    Congress  shall  consist  of  a  Senate  and  House  of 1        1 

Qualifications  of  electors  of  members  of  the  House  of 12  1 

No  person  shall  be  a  Representative  who  shall  not  have  attained  the  age  of 
twenty-five  years,  been  seven  years  a  citizen  of  the  United  States,  and  an 

inhabitant  of  the  State  in  which  he  shall  be  chosen 12  2 

And  direct  taxes,  how  apportioned  among  the  several  States.     [Amended  by 

fourteenth  amendment,  section  2] 12  3 

Shall  choose  their  Speaker  and  other  officers.     The  House  of 12  5 

Shall  have  the  sole  power  of  impeachment.    The  House  of 1        2         5 

Executives  of  the  States  shall  issue  writs  of  election  to  fill  vacancies  in  the 

House  of 12  4 

The  times,  places,  and  manner  of  choosing  Representatives  shall  be  pre- 
scribed by  the  legislatures  of  the  States 1        4  1 

But  Congress  may  at  any  time  by  law  make  or  alter  such  regulations  except 

as  to  the  places  of  choo.sing  Senators 1        4  1 

And  Senators  shall  receive  a  compensation  to  be  ascertained  by  law 1        6  1 


54641  °  —22 12  171 


Analytical  Index.  Pt.l.   THE  CONSTITUTION. 


Arti-     Sec- 
cle.      lion. 


Clause. 


2 

1 

8 

11 

10 

1 

REPRESENTATIVES— Continued. 

Shall  iu  all  cases,  except  treason,  felony,  and  breach  of  the  peace,  be  privi- 
leged from  arrest  during  attendance  at  the  session  of  the  House,  and  in 

going  to  and  returning  from  the  same 1        6  1 

Shall  not  be  questioned  in  any  otlier  place  for  any  speech  or  debate.  Mem- 
bers of  the  House  of 16  1 

No  member  shall  be  appointed  during  his  term  to  any  civil  office  which  shall 
have  been  created,  or  the  emoluments  of  which  shall  have  been  increased, 

during  such  term 16  2 

No  person  holding  any  office  under  the  United  States  shall,  while  holding 

such  office,  be  a  Member  of  the  House  of 16  2 

All  bills  for  raising  revenue  shall  originate  in  the  House  of 17  1 

No  Senator  or  Representative  shall  be  an  elector  for  President  or  Vice-Presi- 
dent          2        1  2 

REPRESENTATIVES  shall  be  bound  by  an  oath  or  affirmation  to  support  the 

Constitution  of  the  United  States.     The  Senators  and 6       . .  3 

REPRESENTATIVES  among  the  several  States.     Provisions  relative  to  the 

apportionment  of.     [Amendments] 11        2 

REPRESENTATIVES  AND  SENATORS.  Prescribing  certain  disqualifica- 
tions for  office  as.     [Amendments] 14        3 

But  Congress  may,  by  a  vote  of  two-thirds  of  each  House,  remove  such  dis- 
qualification.    [Amendments] 14        3 

REPRIEVES  and  pardons  except  in  cases  of  impeachment.     The  President 

may  grant 2 

REPRISAL.     Congress  shall  have  power  to  grant  letters  of  marque  and 1 

No  State  shall  grant  any  letters  of  marque  and 1 

REPUBLICAN  form  of  government.    The  United  States  shall  guarantee  to 

every  State  in  this  Uniou  a 4 

And  shall  protect  each  of  them  against  invasion;  and  on  the  application  of 
the  legislature  or  of  the  executive  (when  the  legislatiu-e  can  not  be  con- 
vened), against  domestic  violence 4 

RESERVED  RIGHTS  of  the  States  and  the  people.  The  enumeration  in  the 
Constitution  of  certain  rights  shall  not  be  construed  to  deny  or  disparage 

others  retained  by  the  people.     [Amendments] 9 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor  pro- 
liibited  by  it  to  the  States,  are  reserved  to  the  States,  respectively,  or  to 
the  people.     [Amendments] 10 

RESIGNATION,  or  inability  of  the  President,  the  duties  and  powers  of  his 

office  shall  devolve  on  the  Vice-President.     In  case  of  the  death 2 

RESIGNATION,  or  inability  of  the  President.     Congress  may  by  lau  provide 

for  the  case  of  the  removal,  death 2 

RESOLUTION,  or  vote  (except  on  a  question  of  adjournment)  requiring  the 
concm-rence  of  the  two  Houses  shall,  before  it  becomes  a  law,  be  presented 
to  the  President.     Every  order 1 

REVENUE  shall  originate  in  the  House  of  Representatives.     All  bills  for  raising .         1 

REVENUE.    Preference  shall  not  be  given  to  the  ports  of  one  State  over  those 

of  another  by  any  regulations  of  commerce  or 1 

RHODE  ISLAND  entitled  to  one  Representative  in  the  First  Congress 1 

RIGHT  OF  PETITION.  Congress  shall  make  no  law  abridging  the  right  of  the 
people  peaceably  to  assemble  and  to  petition  for  the  redress  of  grievances. 
[Amendments] 1 

RIGHT  TO  KEEP  AND  BEAR  ARMS.  A  well-regulated  militia  being  neces- 
sary to  the  security  of  a  free  State,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed.     [Amendments] 2 

RIGHTS  in  the  Constitution  shall  not  be  construed  to  deny  or  disparage  others 

retained  by  the  people.    The  enumeration  of  certain.     [Amendments]...        9 

172 


7 

3 

7 

1 

9 

6 

2 

3 

Pt.  1.  THE  CONSTITUTION.  Analytical  Index. 

Arti-     Sec-  rio„^» 
cle.      tion.  <^1^"^«- 

RIGHTS  not  delegated  to  the  United  States  nor  prohibited  to  the  States  are 

reserved  to  the  States  resijectively  or  to  the  people.     [Amendments] 10 

RULES  of  its  proceedings.     Each  House  may  determine  the 15  2 

RULES  AND  REGULATIONS  respecting  the  territory  or  other  property  of  the 

LTnited  States.     Congress  shall  dispose  of  and  make  all  needful 4        3  2 

RULES  OF  THE  COMMON  LAW.     All  suits  involving  over  twenty  dollars 

shall  be  tried  by  jury  according  to  the.     [Amendments] 7 

No  fact  tried  by  a  jury  shall  be  reexamined  except  according  to  the.  [Amend- 
ments]           7 

S. 

SALE  of  intoxicating  liquors  for  beverage  purposes  prohibited.     [Amendments].       18        1 
SCIENCE  AND  THE  USEFUL  ARTS  by  securing  to  authors  and  inventors  the 
exclusive  right  to  their  writings  and  discoveries.     Congress  shall  have 

power  to  promote  the  progress  of 1        8  8 

SEARCHES  AND  SEIZURES  shall  not  be  violated.    The  right  of  the  people  to 

be  secure  against  unreasonable.     [Amendments] 4 

And  no  warrants  shall  be  issued  but  upon  probable  cause,  on  oath  or  affirma- 
tion, describing  the  place  to  be  searched  and  the  person  or  things  to  be 

seized.     [Amendments] .*        4 

SEAT  OF  GOVERNMENT.     Congress  shall  exercise  exclusive  legislation  in  all 

cases  over  such  district  as  may  become  the 1        8        17 

SECURITIES  and  cm-rent  coin  of  the  United  States.     Congress  shall  provide  for 

punishing  the  counterfeiting  of  the 1        8  6 

SECURITY  OF  A  FREE  STATE,  the  right  of  the  people  to  keep  and  bear  arms 
shall  not  be  infringed.     A  well-regulated  militia  being  necessary  to  the. 

[Amendments] 2 

SENATE  AND   HOUSE   OF   REPRESENTATIVES.    The  Congress  of  the 

United  States  shall  consist  of  a 1        1 

SENATE  OF  THE  UNITED  STATES.    The  Senate  shall  be  composed  of  two 

Senators  from  each  State,  chosen  by  the  legislatiu*e  for  six  years 1        3  1 

[Repealed  by  the  seventeenth  amendment] 17       . .  1 

If  vacancies  happen  during  the  recess  of  the  legislature  of  a  State,  the  execu- 
tive thereof  may  make  temporary  appointments  until  the  next  meeting  of 
the  legislature 1        3  2 

[Repealed  by  the  seventeenth  amendment] 17       . .  1 

The  Vice  President  shall  be  President  of  the  Senate,  but  shall  have  no  vote 

unless  the  Senate  be  equally  divided 1        3  4 

The  Senate  shall  choose  their  other  officers,  and  also  a  President  pro  tempore 
in  the  absence  of  the  Vice  President  or  when  he  shall  exercise  the  office  of 
President 1        3  5 

The  Senate  shall  have  the  sole  power  to  trj^  all  impeachments.     "UTien  sitting 

for  that  purpose  they  shall  be  on  oath  or  affirmation 1        3  6 

When  the  President  of  the  Ignited  States  is  tried  the  Chief  Justice  shall 
preside;  and  no  person  shall  be  convicted  without  the  concurrence  of  two- 
thirds  of  the  members  present 1        3  6 

It  shall  be  the  judge  of  elections,  returns,  and  qualifications  of  its  own  mem- 
bers          15  1 

A  majority  shall  constitute  a  quorum  to  do  business,  but  a  smaller  number 
may  adjoiu-n  from  day  to  day,  and  may  be  authorized  to  compel  the  attend- 
ance of  absent  members 1        5  1 

It  may  determine  the  rules  of  its  proceedings,  punish  a  member  for  disorderly 
behavior,  and  with  the  concurrence  of  two-thirds  expel  a  member 1        5  2 

It  shall  keep  a  journal  of  its  proceedings,  and  from  time  to  time  publish  the 
same,  except  such  parts  as  may  in  their  judgment  require  secrecy 1        5  3 

173 


Analytical  Index.  I't.  1.   TUE  CONSTITUTION. 

Artl-    Sec- 


cle.     tion.  Clause. 


SENATE  OF  THE  UNITED  STATES— Continued. 

It  shiill  not  adjourn  for  more  than  three  days  during  a  session  without  the 
consent  of  the  other  House 1        5 

It  may  propose  amendments  to  bills  for  raising  revenue,  but  such  bills  shall 
originate  in  the  House  of  Representatives 1        7 

The  Senate  shall  advise  and  consent  to  the  ratification  of  all  treaties,  provided 
two-thirds  of  the  memljers  present  concur 2        2 

It  shall  advise  and  consent  to  the  appointment  of  ambassadors,  other  public 
ministers  and  consuls,  judges  of  the  Supreme  Court,  and  all  other  officers 
not  herein  otherwise  provided  for 2        2 

It  may  be  convened  by  the  President  on  extraordinary  occasions 2        3 

No  State,  without  its  consent,  shall  be  deprived  of  its  equal  suffrage  in  the 

Senate 5 

SENATORS  shall,  immediately  after  assembling,  under  their  first  election,  be 
divided  into  three  classes,  so  that  the  seats  of  one-third  shall  become 
vacant  at  the  expiration  of  every  second  year 1        3 

No  person  shall  be  a  Senator  who  shall  not  be  thirty  years  of  age,  nine  years  a 
citizen  of  the  United  States,  and  an  inhabitant  when  elected  of  the  State 
for  which  he  shall  be  chosen 1        3 

The  times,  places,  and  manner  of  choosing  Senators  may  be  fixed  by  the 
legislatiu-e  of  a  State,  but  Congress  may  by  law  make  or  alter  such  regula- 
tions, except  as  to  the  places  of  choosing 1        4 

If  vacancies  happen  during  the  recess  of  the  legislature  of  a  State,  the  execu- 
tive thereof  may  make  temporary  appointments  until  the  next  meeting  of 
the  legislature.     [Amendments] 1 

[Repealed  by  the  seventeenth  amendment] 17 

They  shall  in  all  cases,  except  treason,  felony,  and  breach  of  the  peace,  be 
privileged  from  arrest  during  their  attendance  at  the  session  of  the  Senate 
and  in  going  to  and  returning  from  the  same 1 

And  Representatives  shall  receive  a  compensation  to  be  ascertained  by  law. .         1 

Senators  and  Representatives  shall  not  be  questioned  for  any  speech  or  debate 
in  either  House  in  any  other  place 1 

No  Senator  or  Representative  shall,  during  the  time  for  which  he  was  elected, 
be  appointed  to  any  civil  office  under  the  United  States  which  shall  have 
been  created,  or  of  which  the  emoluments  shall  have  been  increased, 
dm-ing  such  term 1 

No  person  holding  any  office  under  the  United  States  shall  be  a  member  of 
either  House  during  his  continuance  in  office 1 

No  Senator  or  Representative  or  person  holding  an  office  of  trust  or  profit 
under  the  United  States  shall  be  an  elector  for  President  and  Vice  President .         2 

Senators  and  Representatives  shall  be  bound  by  an  oath  or  affirmation  to 
support  the  Constitution 6 

No  person  shall  be  a  Senator  or  Representative  who  having,  as  a  Federal  or 
State  officer,  taken  an  oath  to  support  the  Constitution,  afterwards  engaged 
in  rebellion  against  the  United  States.     [Amendments] 14 

But  Congress  may,  by  a  vote  of  two-thirds  of  each  House,  remove  such  dis- 
ability.    [Amendments] 14 

SERVICE  OR  LABOR  in  one  State,  escaping  into  another  State,  shall  be  de- 
livered up  to  the  party  to  whom  such  service  or  labor  may  be  due.  Fugi- 
tives from 4 

SERVITUDE,  except  as  a  punishment  for  crime,  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  in  the  United  States  or  any  place  subject 
to  their  jurisdiction.  Neither  slavery  nor  involuntary.  [Amendments]..  13 
SERVITUDE.  The  right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States  or  by  any  State  on  account  of 
race,  color,  or  previous  condition  of.     [Amendments] 15 

174 


3 

2 

- 

2 

6 

1 

6 

1 

Pt.l.  THE  CONSTITUTION.  Analytical  Index. 

Arti-    Sec-  p,„,„„ 
cle.     tion.  ^'ause. 

SHIPS  OF  WAR  in  time  of  peace,  without  the  consent  of  Congrees.     No  State 

shall  keep  troops  or 1      10  3 

SILVER  COIN  a  tender  in  payment  of  debts.     No  State  shall  make  anything 

but  gold  and 1      10  1 

SLAVE.     Neither  the  United  States  nor  any  State  shall  assume  or  pay  any  debt 
or  obligation  incurred  in  aid  of  insurrection  or  rebellion,  or  any  claim  for 

the  loss  or  emancipation  of  any.     [Amendments] 14        4 

SLAVERY  nor  involuntary  servitude,  except  as  a  punishment  for  crime,  whereof 
the  party  shall  have  been  dtdy  convicted,  shall  exist  in  the  United  States, 

or  any  places  subject  to  their  jiu-isdiction.     Neither.     [Amendments] 13        1 

SOLDIERS  shall  not  be  quartered,  in  time  of  peace.  In  any  house  without  the 

consent  of  the  owner.     [Amendments] 3 

SOUTH  CAROLINA  entitled  to  five  Representatives  in  the  First  Congress 12  3 

SPEAKER  and  other  officers.     The  House  of  Representatives  shall  choose  their..        12  5 

SPEECH  OR  OF  THE  PRESS.     Congress  shall  make  no  law  abridging  the 

freedom  of.     [Amendments] 1 

SPEEDY  AND  PUBLIC  trial  by  a  jiu-y.     In  all  criminal  prosecutions  the 

accused  shall  have  a.     [Amendments] 6 

STANDARD  OF  WEIGHTS  and  measiu-es.     Congress  shall  fix  the 1        8  5 

STATE  OF  THE  ITNION.     The  President  shall,  from  time  to  time,  give  Con- 
gress information  of  the 2        3 

STATE  LEGISLATURES,  and  all  executive  and  judicial  officers  of  the  United 
States,  shall  take  an  oath  to  support  the  Constitution.     All  members  of  the 

several 6       ..  3 

STATES.     When  vacancies  happen  in  the  representation  from  any  State,  the 
executive  authority  shall  issue  writs  of  election  to  fill  such  vacancies. 

[See  seventeenth  amendment] 1        2  4 

Congress  shall  have  power  to  regulate  commerce  among  the  several 1        8  3 

No  State  shall  enter  into  any  treaty,  alliance,  or  confederation 1      10  1 

Shall  not  grant  letters  of  marque  and  reprisal _      1      10  1 

Shall  not  coin  money 1      10  1 

Shall  not  emit  bills  of  credit 1      10  1 

Shall  not  make  anything  but  gold  and  silver  coin  a  tender  in  payment  of 

debts 1       10  1 

Shall  not  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the 

obligation  of  contracts 1      10  1 

Shall  not  grant  any  title  of  nobility 1      10  1 

Shall  not,  without  the  consent  of  Congress,  lay  any  duties  on  imports  or 
exports,  except  what  may  be  absolutely  necessary  for  executing  its  inspec- 
tion laws 1      10  2 

Shall  not,  without  the  consent  of  Congress,  lay  any  duty  of  tonnage,  keep 
troops  or  ships  of  war  in  time  of  peace,  enter  into  any  agreement  or  compact 
with  another  State  or  with  a  foreign  power,  or  engage  in  war  unless  actually 

invaded  or  in  such  imminent  danger  as  will  not  admit  of  delay 1       10  3 

Full  faith  and  credit  in  every  other  State  shall  be  given  to  the  public  acts, 

records,  and  judicial  proceedings  of  each  State 4        1 

Congress  shall  prescribe  the  manner  of  proving  such  acts,  records,  and  pro- 
ceedings           4        1 

Citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immunities  of 

citizens  in  the  several  States 4        2  1 

New  States  may  be  admitted  by  Congress  into  tliis  Union 4        3  1 

But  no  new  State  shall  be  formed  or  erected  within  the  jurisdiction  of  another 

State 4        3  1 

Nor  any  State  formed  by  the  junction  of  two  or  more  States  or  parts  of  States, 
without  the  consent  of  the  legislatures  as  well  as  of  Congress 4        3  1 

175 


cle.      tion.  C'^'^^- 


Analytical  Index.  Pt.l.   TUE  CONSTITUTION. 

Arti-     Seo 

STATES— Continued . 

No  State  shall  l)e  deprived,  without  its  consent,  of  its  equal  suffrage  in  the 

Senate 5 

Three-fourths  of  the  legislatures  of  the  States  or  conventions  of  three-fourths 
of  the  States,  as  Congress  shall  prescribe,  may  ratify  amendments  to  the 

Constitution 5 

The  United  States  shall  guarantee  a  republican  form  of  government  to  every 

State  in  the  Union 4        4 

They  shall  protect  each  State  against  invasion 4        4 

And  on  application  of  the  legislature,  or  the  executive  (when  the  legislature 

can  not  be  convened),  against  domestic  violence 4        4 

The  ratification  by  nine  States  shall  be  sufficient  to  establish  the  Constitution 

between  the  States  so  ratifying  the  same 7 

When  the  choice  of  President  shall  devolve  on  the  House  of  Representatives, 

the  vote  shall  be  taken  by  States.     [Amendments] 12 

But  in  choosing  the  President  the  vote  shall  be  taken  by  States,  the  repre- 
sentation from  each  State  having  one  vote.     [Amendments] 12 

A  quorum  for  choice  of  President  shall  consist  of  a  member  or  members  from 
two- thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be  necessary 

to  a  choice.     [Amendments] 12 

Shall  have  concurrent  power  with  Congress  to  enforce,  by  appropriate  legisla- 
tion, eighteenth  amendment.     [Amendments] 18        2 

STATES  or  to  the  people.  Powers  not  delegated  to  the  United  States,  nor  pro- 
hibited to  the  States,  are  reserved  to  the.     [Amendments] 10 

SUFFRAGE  in  the  Senate.     No  State  shall  be  deprived  without  its  consent  of 

its  equal 5 

SUFFRAGE,  Woman,  nineteenth  amendment.    [Amendments] 19 

SUITS  at  common  law,  where  the  value  in  controversy  shall  exceed  twenty 

dollars,  shall  be  tried  by  jury.     [Amendments] 7 

In  law  or  equity  against  one  of  the  States  by  citizens  of  another  State  or  by 
citizens  of  a  foreign  State.     The  judicial  power  of  the  United  States  shall 

not  extend  to.     [Amendments] 11 

SUPREME  COURT.     Congress  shall  have  power  to  constitute  tribunals  inferior 

to  the 18  9 

SUPREME  COURT,  and  such  inferior  courts  as  Congress  may  establish.     The 

judicial  power  of  the  United  States  shall  be  vested  in  one 3        1 

The  judges  of  the  Supreme  and  inferior  courts  shall  hold  their  offices  during 

good  behavior 3        1 

The  compensation  of  the  judges  shall  not  be  diminished  during  their  con- 
tinuance in  office 3        1 

SUPREME  COURT  shall  have  original  jurisdiction  in  all  cases  affecting  ambas- 
sadors, other  public  ministers  and  consuls,  and  in  which  a  State  may  be  a 

party.     The 3        2  2 

Shall  have  appellate  jurisdiction,  both  as  to  law  and  fact,  with  such  excep- 
tions and  regulations  as  Congress  may  make.     The 3        2  2 

SUPREME    LAW  of  the  land.     This  Constitution,  the  laws  made  in  pursuance 

thereof,  and  the  treaties  of  the  United  States  shall  be  the 6      . .  2 

The  judges  in  every  State  shall  be  bound  thereby 6       ..  2 

SUPPRESS  insurrections,  and  repel  invasions.  Congress  shall  provide  for  call- 
ing forth  the  militia  to  execute  the  laws 1        8        15 

SUPPRESSION  of  insurrection  or  rebellion,  shall  not  be  questioned.  The 
public  debt,  including  the  debt  for  pensions  and  bounties  incurred  in  the. 
[Amendments] 14        4 


176 


Pt.  1.   THE  CONSTITUTION.  Analytical  Index. 


Arti-     Sec-  r^i^.-.^^ 
cle.      tion.  Clause. 


T. 


TAX  shall  be  laid  unless  in  proportion  to  the  census  or  enumeration.  No  capi- 
tation or  other  direct.     [See  sixteenth  amendment] 1        9  4 

TAX  or  duty  shall  be  laid  on  articles  exported  from  any  State.     No 19  5 

TAXES  (direct)    and    Representatives,    how   apportioned    among   the  several 

States.     [See  fourteenth  amendment,  section  2] 12  3 

TAXES  (direct).  Congress  shall  have  power  to  collect  taxes  on  incomes,  from 
whatever  source  derived,  without  apportionment  among  the  several  States, 
and  without  regard  to  any  census  or  enumeration.  The  sixteenth  amend- 
ment.    [Amendments] 16 

TAXES,  duties,  imposts,  and  excises.     Congress  shall  have  power  to  lay 18  1 

They  shall  be  uniform  throughout  the  United  States.     [See  sixteenth  amend- 
ment]          18  1 

TEMPORARY  APPOINTMENTS  until  the  next  meeting  of  the  legislature.  If 
vacancies  happen  in  the  Senate  in  the  recess  of  the  legislature  of  a  State,  the 
executive  of  the  State  shall  make.  [Repealed  by  seventeenth  amendment].         13  2 

TENDER  in  payment  of  debts.     No  State  shall  make  anything  but  gold  and 

silver  coin  a 1      10  1 

TERM  OF  FOUR  YEARS.     The  President  and  Vice-President  shall  hold  their 

offices  for  the 2        11 

TERM  for  which  he  is  elected.  No  Senator  or  Representative  shall  be  appointed 
to  any  office  under  the  United  States  which  shall  have  been  created  or  its 
emoluments  increased  during  the 16  2 

TERRITORY  or  other  property  of  the  United  States.     Congress  shall  dispose  of 

and  make  all  needful  rules  and  regulations  respecting  the 4        3  2 

TEST  as  a  qualification  for  any  office  or  public  trust  shall  ever  be  required.     No 

religious 6      ..  3 

TESTIMONY  of  two  witnesses  to  the  same  overt  act,  or  on  confession  in  open 

court.     No  person  shall  be  convicted  of  treason  except  on  the 3        3  1 

THREE-FOURTHS  OF  THE  LEGISLATURES  of  the  States,  or  conventions 
in  three-fourths  of  the  States,  as  Congress  shall  prescribe,  may  ratify 
amendment?  to  the  Constitution 5 

TIE.     The  Vice-President  shall  have  no   vote  unless  the  Senate  be  equally 

divided 13  4 

TIMES,  PLACES,  AND  MANNER  of  holding  elections  for  Senators  and  Repre- 
sentatives shall  be  prescribed  in  each  State  by  the  legislature  thereof 14  1 

But  Congress  may  at  any  time  by  law  make  or  alter  such  regulations,  except 
as  to  the  places  of  choosing  Senators 14  1 

TITLE  OF  NOBILITY.     The  United  States  shall  not  grant  any 19  8 

No  State  shall  grant  any 1      10  1 

TITLE  of  any  kind,  from  any  king,  prince,  or  foreign  State,  without  the  consent  of 
Congress.  No  person  holding  any  office  under  the  United  States  shall 
accept  of  any 19  8 

TONNAGE  without  the  consent  of  Congress.     No  State  shall  lay  any  duty  of 1      10  3 

TRANQUILLITY,  provide  for  the  common  defense,  etc.  To  insure  domestic. 
[Preamble.] 

TRANSPORTATION  of  intoxicating  liquors  for  beverage  purposes  prohibited. 

[Amendments] 18        1 

TREASON  shall  consist  only  in  levying  war  against  the  United  States,  or  in 

adhering  to  their  enemies,  giving  them  aid  and  comfort 3        3  1 

TREASON.     No  person  shall,  unless  on  the  testimony  of  two  witnesses  to  the 

same  overt  act,  or  on  confession  in  open  coiu"t,  be  convicted  of 3        3  1 

Congress  shall  have  the  power  to  declare  the  punishment  of 3        3  2 

Shall  not  work  corruption  of  blood.     Attainder  of 3        3  2 


1T7 


Analytical  Index.  Pt.  1.   THE  CONSTITUTION. 

Artl-  Sec-   ^, 
cle.    tion.  ^i"^^®- 

TREASON.     Shall  not  work   forfeiture,  except  during  the  life  of   the  person 

attainted.    Attainder  of 3        3  2 

TREASON,  BRIBERY,  or  other  high  crimes  and  misdemeanors.  The  Presi- 
dent, Vice-President,  and  all  civil  officers  shall  be  removed  from  office  on 
impeachment  for  and  conviction  of 2        4 

TREASON,  FELONY,  AND  BREACH  OF  THE  PEACE.  Senators  and  Repre- 
sentatives shall  be  privileged  from  arrest  while  attending  or  while  going 
to  or  returning  from  the  sessions  of  Congress,  except  in  cases  of 1        6  1 

TREASURY,  but  in  consequence  of  appropriations  made  by  law.     No  money 

shall  be  drawn  from  the 1        9  7 

TREATIES.     The  president  shall  have  power,  with  the  advice  and  consent  of 

the  Senate,  provided  two-thirds  of  the  Senators  present  concur,  to  make 2        2  2 

The  judicial  power  shall  extend  to  all  cases  arising  under  the  Constitution, 

laws,  and 3        2  1 

They  shall  be  the  supreme  law  of  the  land,  and  the  judges  in  every  State  shall 
be  bound  thereby 6       ..  2 

TREATY,  alliance,  or  confederation.     No  State  shall  enter  into  any 1      10  1 

TRIAL,  judgment,  and  punishment  according  to  law.  Judgment  in  cases  of  im- 
peachment shall  not  extend  further  than  to  removal  from  and  disqualifi- 
cation for  office;  but  the  party  convicted  shall  nevertheless  be  liable  and 
subject  to  indictment 13  7 

TRIAL  BY  JURY.     All  crimes,  except  in  cases  of  impeachment,  shall  be  tried 

by  jury 3        2  3 

Such  trial  shall  be  held  in  the  State  within  which  the  crime  shall  have  been 

committed 3        2  3 

But  when  not  committed  within  a  State,  the  trial  shall  be  at  such  place  as 

Congress  may  by  law  have  directed 3        2  3 

In  all  criminal  prosecutions  the  accused  shall  have  a  speedy  and  public. 

[Amendments] 6 

Suits  at  common  law,  when  the  amount  exceeds  twenty  dollars,  shall  be  by. 
[Amendments] 7 

TRIBUNALS  inferior  to  the  Supreme  Court.  Congress  shall  have  power  to  con- 
stitute          18  9 

TROOPS  or  ships  of  war  in  time  of  peace  without  the  consent  of  Congress.     No 

State  shall  keep 1       10  3 

TRUST  AND  PROFIT  under  the  United  States  shall  be  an  elector  for  President 
and  Vice  President.  No  Senator,  Representative,  or  person  holding  any 
office  of 2        12 

TWO-THIRDS  of  the  members  present.     No  person  shall  be  convicted  on 

impeachment  without  the  concurrence  of 1        3  6 

TWO-THIRDS,  may  expel  a  member.     Each  House,  with  the  concurrence  of .  .         1        5  2 

TWO-THIRDS.     A  bill  returned  by  the  President  with  his  objections  may  be 

repassed  by  each  House  by  a  vote  of 1        7  2 

TWO-THIRDS  of  the  Senators  present  concur.  The  President  shall  have  power, 
by  and  with  the  advice  and  consent  of  the  Senate,  to  make  treaties,  pro- 
vided          2        2  2 

TWO-THIRDS  of  the  legislatures  of  the  several  States.  Congress  shall  call  a 
convention  for  proposing  amendments  to  the  Constitution  on  the  applica- 
tion of 5 

TWO-THIRDS  of  both  Houses  shall  deem  it  necessary.     Congress  shall  propose 

amendments  to  the  Constitution  whenever 5 

TWO-THIRDS  of  the  States.  WTien  the  choice  of  a  President  shall  devolve  on 
the  House  of  Representatives,  a  quorum  shall  consist  of  a  member  or 
members  from.     [Amendments] 12    '  .. 


178 


Pt.l.   THE  CONSTITUTION.  Analytical  Index. 

Arti-    Sec-   (;.i„,,_(, 
cle.    tion.  ^^^^^°' 

TWO-THIRDS  of  the  whole  number  of  Senators.     A  quorum  of  the  Senate,  when 

choosing  a  Vice  President,  shall  consist  of.     [Amendments] 12 

TWO-THIRDS,  may  remove  the  disabilities  imposed  by  the  third  section  of  the 

fourteenth  amendment.     Congress,  by  a  vote  of.     [Amendments] 14        3 

TWO  YEARS.     Appropriations  for  raising  and  supporting  armies  shall  not  be 

for  a  longer  term  than 1        8        12 

U. 

UNION.    To  establish  a  more  perfect.     [Preamble.] 

The  President  shall,  from  time  to  time,  give  to  Congress  information  of  the 

state  of  the 2        3 

New  States  may  be  admitted  by  Congress  into  this 4        3  1 

But  no  new  State  shall  be  formed  or  erected  within  the  jurisdiction  of  another 

State 4        3  1 

UNREASONABLE  searches  and  seizures.     The  people  shall  be  secured  in  their 

persons,  houses,  papers,  and  effects  against.     [Amendments] 4 

And  no  warrants  shall  be  issued  but  upon  probable  cause,  supported  by  oath 

or  affirmation,  and  particularly  describing  the  place  to  be  searched  and  the  9 

persons  or  things  to  be  seized .     [Amendments] 4 

UNUSUAL  punishments  inflicted.     Excessive  bail  shall  not  be  required,  nor 

excessive  fines  imposed,  nor  cruel  and.     [Amendments] 8 

USE  without  just  compensation.     Private  property  shall  not  be  taken  for  public. 

[Amendments] 5 

USEFUL  arts,  by  securing  for  limited  times  to  authors  and  inventors  the  exclusive 
right  to  their  writings  and  inventions.  Congress  shall  have  power  to 
promote  the  progress  of  science  and  the 1        8  8 

V. 

VACANCIES  happening  in  the  representation  of  a  State.     The  executive  thereof 

shall  issue  writs  of  election  to  fill I        2  4 

VACANCIES  happening  in  the  Senate  in  the  recess  of  the  legislature  of  a  State. 

How  filled.     [See  seventeenth  amendment] 13  2 

VACANCIES  that  happened  during  the  recess  of  the  Senate,  by  granting  com- 
missions which  shall  expire  at  the  end  of  the  next  session.     The  President 

shall  have  power  to  fill 2        2  3 

VALIDITY  of  the  public  debt  incurred  in  suppressing  insurrection  against  the 
United  States,  including  debt  for  pensions  and  bounties,  shall  not  be 

questioned.     [Amendments] 14        4 

VESSELS  bound  to  or  from  the  ports  of  one  State  shall  not  be  obliged  to  enter, 

clear,  or  pay  duties  in  another  State 1        9  6 

VETO  of  a  bill  by  the  President.     Proceedings  of  the  two  Houses  upon  the 1        7  2 

VICE-PRESIDENT  of  the  United  States  shall  be  President  of  the  Senate 13  4 

He  shall  have  no  vote  unless  the  Senate  be  equally  divided 13  4 

The  Senate  shall  elect  a  President  pro  tempore  in  the  absence  of  the I        3  5 

He  shall  be  chosen  for  the  term  of  four  years 2        1  1 

The  number  and  the  manner  of  appointing  electors  for  President  and 2        12 

In  case  of  the  removal,  death,  resignation,  or  inability  of  the  President,  the 

powers  and  duties  of  his  office  shall  devolve  on  the 2        1  5 

VICE-PRESIDENT.     Congress  may  provide  by  law  for  the  case  of  the  removal, 

death,  resignation,  or  inability  both  of  the  President  and 2        1  5 

On  impeachment  for  and  conviction  of  treason,  bribery,  and  other  high 

crimes  and  misdemeanors  shall  be  removed  from  office.     The 2        4 

The  manner  of  choosing  the.  The  electors  shall  meet  in  their  respective  States 
and  vote  by  ballot  for  President  and  Vice-President,  one  of  whom,  at  least, 
shall  not  be  an  inhabitant  of  the  same  State  with  themselves.  [Amend- 
ments]        12 

179 


Analytical  Index.  Pt.  1.   THE  CONSTITUTION. 


"St  So^  Clause. 


VICE-PRESIDENT.     The  electors  shall  name,  in  distinct  ballots,  the  person 

voted  for  as  Vice-President.     [Amendments] 12 

They  shall  make  distinct  lists  of  the  persons  voted  for  as  Vice-President, 
which  lists  they  shall  sign  and  certify,  and  send  sealed  to  the  seat  of  gov- 
ernment, directed  to  the  President  of  the  Senate.     [Amendments] 12 

The  President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  certificates,  and  the  votes  shall  then  be 
counted.     [Amendments] 12 

The  person  having  the  greatest  number  of  votes  shall  be  Vice-President,  if 
such  number  be  a  majority  of  the  whole  number  of  electors.  [Amend- 
ments]        12 

If  no  person  have  a  majority,  then  from  the  two  highest  numbers  on  the  list 
the  Senate  shall  choose  the  Vice-President.     [Amendments] 12 

A  quorum  for  this  purpose  shall  consist  of  two-thirds  of  the  whole  number  of 
Senators;  and  a  majority  of  the  whole  number  shall  be  necessary  to  a  choice. 
[Amendments] 12 

But  if  the  House  shall  make  no  choice  of  a  President  before  the  4th  of  March 
next  following,  then  the  Vice-President  shall  act  as  President,  as  in  the 
case  of  the  death  or  other  constitutional  disability  of  the  President. 
[Amendments] 12 

No  person  constitutionally  ineligible  as   President  shall  be  eligible  as. 

[Amendments] 12 

VIOLENCE.     The  United  States  shall  guarantee  to  every  State  a  republican 
form  of  government,  and  shall  protect  each  State  against  invasion  and 

domestic 4        4 

VIRGINIA  entitled  to  ten  representatives  in  the  First  Congress 1        2  3 

VOTE.     Each  Senator  shall  have  one 13  1 

The  Vice-President,  unless  the  Senate  be  equally  divided,  shall  have  no. . .         1        3  4 
VOTE  requiring  the  concurrence  of  the  two  Houses  (except  upon  a  question  of 
adjournment)  shall  be  presented  to  the  President.     Every  order,  resolu- 
tion, or 17  3 

Shall  not  be  denied  or  abridged  by  the  United  States  or  by  any  State  on  ac- 
count of  race,  color,  or  previous  condition  of  servitude.  The  right  of  citi- 
zens of  the  United  States  to.     [Amendments] 15        1 

Shall  not  be  denied  or  abridged  on  account  of  sex.     [Amendments] 19 

VOTE  OF  TWO-THIRDS.     Each  House  may  expel  a  member  by  a 1        5  2 

A  bill  vetoed  by  the  President  may  be  repassed  in  each  House  by  a 1        7  2 

No  person  shall  be  convicted  on  an  impeachment  except  by  a 13  6 

Whenever  both  Houses  shall  deem  it  necessary,  Congress  may  propose  amend- 
ments to  the  Constitution  by  a 5 

The  President  may  make  treaties,  vnth.  the  advice  and  consent  of  the  Sen- 
ate, by  a 2        2  2 

Disabilities  incurred  by  participation  in  insurrection  or  rebellion  may  be 
relieved  by  Congress  by  a.     [Amendments] 14        3 

W. 

WAR,  grant  letters  of  marque  and  reprisal,  and  make  rules  concerning  captures 

on  land  and  water.     Congress  shall  have  power  to  declare 1        8        11 

For  governing  the  land  and  naval  forces.     Congress  shall  have  power  to  make 

rules  and  articles  of 1        8        14 

No  State  shall,  ^vithout  the  consent  of  Congress,  unless  actually  invaded,  or 

in  such  imminent  danger  as -ttdll  not  admit  of  delay,  engage  in 1      10  3 

WAR  against  the  United  States,  adhering  to  their  enemies,  and  gi^^.ng  them  aid 

and  comfort.     Treason  shall  consist  only  in  levying 3        3  1 


180 


Pt.l.   THE  CONSTITUTION.  Analytical  Index. 


^"-    ^^    Clause. 


cle.     tion, 

WARRANTS  shall  issue  but  upon  probable  cause,  on  oath  or  affirmation,  de- 
scribing the  place  to  be  searched  and  the  persons  or  things  to  be  seized. 
No.     [Amendments] 4 

WEIGHTS  AND  MEASURES.     Congress  shall  fix  the  standard  of 1 

WELFARE,  and  to  secure  the  blessings  of  liberty,  etc.  To  promote  the  general. 
[Preamble.] 

WELFARE.     Congress  shall  have  power  to  provide  for  the  common  defense  and 

general 1 

WITNESS  against  himself.     No  person  shall,  in  a  criminal  case,  be  compelled 

to  be  a.     [Amendments] 5 

WITNESSES  against  him.     In  all  criminal  prosecutions  the  accused  shall  be 

confronted  with  the.     [Amendments] 6 

WITNESSES  in  his  favor.     In  all  criminal  prosecutions  the  accused  shall  have 

compulsory  process  for  obtaining.     [Amendments] 6 

WITNESSES  to  the  same  overt  act,  or  on  confession  in  open  court.     No  person 

shall  be  convicted  of  treason  unless  on  the  testimony  of  two 3 

WRIT  OF  HABEAS  CORPUS  shall  not  be  suspended,  unless  in  case  of  rebellion 

or  invasion  the  public  safety  may  require  it 1 

WRITS  of  election  to  fill  vacancies  in  the  representation  of  any  State.  The  ex- 
ecutive of  the  State  shall  issue 1 

WRITTEN  opinion  of  the  principal  officer  in  each  of  the  Executive  Departments 
on  any  subject  relating  to  the  duties  of  his  office.  The  President  may  re- 
quire the 2 

Y. 

YEAS  AND  NAYS  of  the  members  of  either  House  shall,  at  the  desire  of  one- 
fifth  of  those  present,  be  entered  on  the  journals I 

The  votes  of  both  Houses  upon  the  reconsideration  of  a  bill  returned  by  the 
President  with  his  objections  shall  be  determined  by 1 


181 


PART  2. 


THE  REVISED  STATUTES  OF  THE  UNITED  STATES, 


183 


To  revise  and  consolidate  the  statutes  of  the  United  States,  in  force 
on  tlie  first  day  of  December,  anno  Domini  one  thousand  eight 
hundred  and  seventy-three. 


TITLE  I. 
GENERAL  PROVISIONS. 


CHAPTER  ONE. 


Sec. 

1.  Definitionfi. 

2.  County. 

3.  Vessel. 


Sec. 

4.  Vehicle. 

5.  Company,  association. 

6.  Seal. 


Be  it  enacted  by  the  Senate  and  House  of  Rej^resentatives  of  the  United  States 
of  America  in  Congress  assembled,  [Definitions.]  In  determining  the  meaning 
of  the  revised  statutes,  or  of  any  act  or  resolution  of  Congress  passed  sub- 
sequent to  February  twenty-fifth,  eighteen  hundred  and  seventy-one,  words 
importing  the  singular  number  may  extend  and  be  apphed  to  several  persons  or 
things;  words  importing  the  plural " number  may  include  the  singular;  words 
importing  the  mascuHne  gender  may  be  applied  to  females;  the  words  "insane 
person"  and  "lunatic"  shall  include  every  idiot,  non  compos,  lunatic,  and 
insane  person;  the  word  '/person"  may  extend  and  be  applied  to  partnersliips 
and  corporations,  and  the  reference  to  any  officer  shall  include  any  person 
authorized  by  law  to  perform  the  duties  of  such  office,  unless  the  context  shows 
thixt  such  words  were  intended  to  be  used  in  a  more  limited  sense ;  and  a  require- 
ment of  an  "oath"  shall  be  deemed  compHed  with  by  making  affirmation  in 
judicial  form.— (25  Feb.,  1871,  c.  71,  s.  2,  v.  16,  p.  431 ;  13  July,  1866,  c.  184,  s. 
44,  V.  14,  p.  163 ;  30  June,  1864,  c.  173,  ss.  82,  126,  v.  13,  pp.  258,  287;  20  July, 
1868,  c.  186,  s.  104,  v.  15,  p.  166.) 

Sec.  2.  [County.]  The  word  "county"  includes  a  parish,  or  any  other 
equivalent  subdivision  of  a  State  or  Territory  of  the  United  States. — (13  July, 
1866,  c.  184,  s.  9,  v.  14,  pp.  98,  110.) 

Sec.  3.  [Vessel.]  Tlie  word  "vessel"  includes  every  description  of  water- 
craft  or  other  artificial  contrivance  used,  or  capable  of  being  used,  as  a  means  of 
transportation  on  water.— (18  July,  1866,  c.  201,  s.  1,  v.  14,  p.  178;  29  June, 
1870,  c.  169,  s.  7,  V.  16,  p.  170.) 

Sec.  4.  [Vehicle.]  The  word  "vehicle"  includes  every  description  of 
carriage  or  other  artificial  contrivance  used,  or  capable  of  being  used,  as  a 
means  of  transportation  on  land. — (18  July,  1866,  c.  201,  s.  1,  v.  14,  p.  178.) 

185 


Sec.  6.  PT.2.     REVISED  STATUTES.  General  Provisions. 

Sec.  5.  [Company,  association.]  The  word  "company"  or  "association," 
when  used  in  reference  to  a  corporation,  shall  be  deemed  to  embrace  the  words 
"successors  and  assigns  of  sucli  company  or  association,"  in  like  manner  as  if 
these  last-named  words,  or  words  of  similar  import,  were  expressed. — (25  July, 
1866,  c.  242,  s.  9,  v.  14,  p.  241.) 

Sec.  6.  [Seal.]  In  all  cases  where  a  seal  is  necessary  by  law  to  any  commis- 
sion, process,  or  other  instrument  provided  for  by  the  laws  of  Congress,  it  shall 
be  la^\'ful  to  affix  the  proper  seal  by  making  an  impression  therewith  directly 
on  the  paper  to  which  such  seal  is  necessary;  which  shall  be  as  valid  as  if  made 
on  wax  or  other  adhesive  substance. — (31  May,  1854,  c.  60,  s.  2,  v.  10,  p.  297.) 


186 


A 


CHAPTER  TWO. 


FORM  OF  STATUTES  AND  EFFECT  OF  REPEALS. 


Sec. 

7.  Enacting  clause. 

8.  Resolving  clause. 

9.  No  enacting  words  after  first  section. 
10.  Numbering  and  frame  of  sections. 


Sec. 

11.  Title  of  appropriation  acts. 

12.  Repeal  not  to  revive  former  act. 

13.  Repeals  not  to  affect  Liabilities,  unless,  etc. 


Sec.  7.  [Enacting  clause.]  The  enacting  clause  of  all  acts  of  Congress 
hereafter  enacted  shall  be  in  the  f oUo^ving  form :  ' '  Be  it  enacted  by  the  Senate 
and  House  of  Representatives  of  the  United  States  of  America  in  Congress 
assembled."— (25  Feb.,  1871,  c.  71,  s.  1,  v.  16,  p.  431.) 

Sec.  8.  [Resolving  clause.]  The  resolving  clause  of  all  joint  resolutions 
shall  be  in  the  following  form:  "Resolved  by  the  Senate  and  House  of  Repre- 
sentatives of  the  United  States  of  America  in  Congress  assembled." — -(25  Feb. 
1871,  c.  71,  s.  1,  V.  16,  p.  431.) 

Sec.  9.  [No  enacting  words  after  first  section.]  No  enacting  or  resolving 
words  shall  be  used  in  any  section  of  an  act  or  resolution  of  Congress  except  in 
the  first.— (25  Feb.,  1871,  c.  71,  s.  1,  v.  16,  p.  431.) 

Sec.  10.  [Numbering  and  frame  of  sections.]  Each  section  shall  be  numbered, 
and  shall  contain,  as  nearly  as  may  be,  a  single  proposition  of  enactment. — 
(25  Feb.,  1871,  c.  71,  s.  1,  v.  16,  p.  431.) 

Sec.  11.  [Title  of  appropriation  acts.]  The  style  and  title  of  all  acts  making 
appropriations  for  the  support  of  Government  shall  be  as  follows:  "An  act 
making  appropriations,  (here  insert  the  object)  for  the  year  ending  June 
thirtieth  (here  insert  the  calendar  year). — (26  Aug.,  1842,  c.  207,  s.  2,  v.  5, 
V.  537  [should  be  ''p.  537."]) 

Sec.  12.  [Repeal  not  to  revive  former  act.]  Whenever  an  act  is  repealed, 
which  repealed  a  former  act,  such  former  act  shall  not  thereby  be  revived, 
imless  it  shall  be  expressly  so  provided. — (25  Feb.,  1871,  c.  71,  s.  3,  v.  16,  p.  431.) 

Sec.  13.  [Repeals  not  to  affect  liabilities,  unless,  &c.]  The  repeal  of  any 
statute  shall  not  have  the  effect  to  release  or  extinguish  any  penalty,  forfeiture, 
or  liabihty  incm-red  under  such  statute,  unless  the  repealing  act  shall  so  expressly 
provide,  and  such  statute  shall  be  treated  as  still  remaming  in  force  for  the 
purpose  of  sustaining  any  proper  action  or  prosecution  for  the  enforcement  of 
such  penalty,  forfeiture,  or  Uabihty.— (25  Feb.,  1871,  c.  71,  s.  4,  v.  16,  p.  432; 
United  States  v.  Ukici,  3  Dill.,  532.) 


54641°— 22- 


13 


187 


TITLE  IV. 

PROVISIONS  APPLICABLE  TO  ALL  THE  EXECUTIVE 

DEPARTMENTS. 


Sec. 

158.  Application  of  pro\-isions  of  this  title. 

159.  "Department"  defined. 

160.  Salaries  of  heads  of  departments. 

161.  Departmental  regulations,  property,  and 

records. 

162.  Hours  of  business. 

163.  Classification  of  department  clerks. 

164.  Examinations  for  appointment. 

165.  Clerkships  open  to  vromen. 

166.  Distribution  of  clerks,  temporary"  detail. 

167.  Salaries  of  persons  employed  in  the  de- 

partments. 

168.  Temporary'  clerks. 

169.  Appointrnent,  number,  and  compensation 

of  employees  authorized . 

170.  Extra  compensation  to  clerks  restricted. 

171.  Employment  of  extra  clerks  during  ses- 

sions of  Congress. 

172.  Restriction  on  employment  of  messengers 

and  laborers. 

173.  Duties  of  chief  clerk;  supervising  subor- 

dinates. 

174.  Duties  of  chief  clerks;   monthly  reports, 

etc. 

175.  Action  on  reports  of  chief  clerks. 

176.  Disbursing  clerks. 

177.  Vacancies  in  head  of  department;    how 

temj)orarily  filled. 

178.  Vacancies  in  subordinate  offices. 


Sec. 

179.  Vacancies,  authority  of  President  to  fill 

temporarily. 

180.  Temporary   appointments   limited   to   30 

days. 

181.  Restriction  on  temporary  appointments. 

182.  Extra  compensation  disallowed. 

183.  Oaths,  when  administered  by  officers,  etc. 

184.  Claims    pending    in    depaitments— Sub- 

poenas to  witnesses. 

185.  Witnesses'  fees. 

186.  Compelling  testimony. 

187.  Legal  assistance  in  connection  with  claims. 

188.  Suits  in  Court  of  Claims — Evidence  fur- 

nished by  departments. 

189.  Employment  of  attorneys  or  counsel. 

190.  Persons  formerly  in  departments  not  to 

prosecute  claims. 

191.  Certified   balances   conclusive   in    settle- 

ment of  public  accounts. 

192.  Expenditures  for  newspapers. 

193.  Annual  report  of  expenditures  from  con- 

tingent funds. 

194.  Report  of  clerks  employed. 

195.  Time  of  making  annual  reports  to  Con- 

gress. 

196.  Time    of    furnishing    annual    reports    to 

printer. 

197.  Inventories  of  department  property. 

198.  Data  to  be  furnished  for  biennial  register. 


Sec.  158.  [Application  of  provisions  of  this  Title.]     The  provisions  of  this 
Title  shall  apply  to  the  following  Executive  Departments : 
First.  The  Department  of  State. 
Second.  The  Department  of  War. 
Third.  The  Department  of  the  Treasury. 
Fourth.  The  Department  of  Justice. 
Fifth.  The  Post  Office  Department. 
Sixth.  The  Department  of  the  Navy. 
Seventh.  The  Department  of  the  Interior. 


For  laws  and  decisions  relating  to  the  organiza- 
tion of  the  Department  of  the  Navy,  its 
bureaus  and  offices,  see  Title  X,  "The 
Department  of  the  Navy,"  sections  415  to 
436,  Rexdsed  Statutes. 

Origin  and  Growth  of  Executive  Depart- 
ments. 

Recognized  by  the  Constitution. — The 
Constitution  provides  that  "the  Executive 
power  shall  be  vested  in  the  President  of  the 


United  States,"  but  the  Constitution  does  not 
specify  the  subordinate  administrative  func- 
tionaries by  whose  agency  or  counsels  the  de- 
tails of  the  public  business  are  to  be  transacted. 
It  recognizes  the  existence  of  such  ofiicial  agents 
and  advisers  in  saying  that  the  President  "may 
require  the  opinion,  in  writing,  of  the  principal 
officer  in  each  of  the  executive  departments 
upon  any  subject  relating  to  the  duties  of  their 
respective  offices";  and  these  ofiicers  are  again 
recognized  by  the  Constitution  in  the  clause 
which  vests  the  appointment  of  certain  inferior 


189 


Sec.  158. 


Pt.2.  REVISED  STATUTES.        Executive  Departments. 


oflicers  "ill  the  heads  of  departments";  and  it 
leaves  the  number  and  the  organization  of  those 
departments  to  be  detennined  by  Congress. 

Department  of  State.— In  tiie  execution 
of  this  duty  tlie  Constitutional  Congress  pro- 
ceeded, at  an  early  day  of  its  lirst  session  (J  uly 
27,  1789),  to  establish  the  Department  of  For- 
eign Affairs,  with  "a  principal  oflicer  therein," 
to  be  called  the  Secretary  for  the  Department 
of  Foreign  Affairs. 

But  this  act,  which  was  the  commencement 
of  the  organization  of  executive  departments 
under  the  Constitution,  and  a  commencement 
in  the  direction  of  a  systematic  and  proper  dis- 
tribution of  duties,  gave  place,  after  the  lapse 
of  a  few  months  (Sept.  15,  1789),  to  an  act 
which  changed  the  name  of  the  Department  of 
Foreign  Al'fairs  to  that  of  Department  of  State. 
Department  of  War. — Next,  Congress  es- 
tablished the  Department  of  War  (Aug.  7, 1789), 
with  a  principal  ofiicer  therein  to  be  called  the 
Secretary  for  the  Department  of  War,  and  re- 
quired to  perform  duties  relative  to  military  or 
naval  affairs. 

Department  of  Treasury. — Next  came  a 
Departmentof  Treasury' (Sept.2, 1789),  the  head 
of  it  being  called  tlie  Secretary  of  the  Treasury. 
Attorney  General. — ^ft  the  same  eetjsion  of 
Congress,  in  organizing  the  judicial  business  of 
the  United  States  (Sept.  24, 1789),  provision  was 
made  for  an  Attorney  General. 

Postmaster  General. — By  another  act 
(Sept.  22, 1789)  theofficeof  Postmaster  General 
was  appointed,  subject  to  the  direction  of  the 
President,  but  not  in  other  respects  then  placed 
en  the  same  high  official  relation  to  the  Gov- 
irmnent  as  at  the  present  time. 

Original  Cabinet. — Such  was  the  original 
basis  of  the  executive  organization  of  the  Gov- 
ernment. The  Secretary  of  State  for  political 
and  foreign  affairs,  the  Secretary  of  War  for 
military  and  naval  matters,  the  Secretary  of  the 
Treasury  for  those  of  finance,  and  the  Attorney 
General  for  legal  and  judicial  ones,  were  the 
immediate  superior  ministerial  officers  of  the 
President,  and  his  constitutional  counselors 
during  the  whole  period  of  the  administration 
of  Washington.  The  Cabinet,  so  called,  con- 
sisted of  these  four  officers,  who,  though  not  in 
any  sense  an  organized  body  with  legal  attri- 
butes as  such,  yet  proceeded  to  act  in  concert. 
Department  of  the  Navy. — No  material 
modification  occurred  in  the  great  outlines  of 
superior  administration  until  during  the  ad- 
ministration of  John  Adams,  when  the  magni- 
tude of  our  commerce  and  the  importance  of 
our  maritime  relations  induced  the  Govern- 
ment to  pay  more  attention  to  the  military 
marine  and  to  establish  the  Department  of  the 
Navy,  the  chief  officer  of  which  to  be  called  the 
Secretary  of  the  Navy,  whose  duty  it  should  be 
to  execute  such  orders  as  he  might  receive  from 
the  President  relative  to  the  procurement  of 
naval  stores  and  materials,  and  the  construc- 
tion, armament,  eciuipment,  and  employment 
of  vessels  of  w^ar,  as  well  as  to  all  other  matters 
connected  with  the  naval  establishment  of  the 
United  States.     (Act  Apr.  30,  1798.) 

Postmaster  General  elevated  to  Cabi- 
net.— Subsequently  to  this,  and  in  the  long 
period  of  the  administrations  of  Jefferson,  Madi- 
son, Monroe,  and  John  Quincy  Adams,  no  change 


in  the  general  character  of  the  executive  de- 
partments took  place,  although  all  of  them 
underwent  more  or  less  mothfication  in  details. 
But,  at  the  opening  of  Jackson's  administration 
[1829],  the  Postmaster  General,  whose  duties 
and  responsibilities  had  grown  with  the  growth 
of  the  country  to  be  of  vast  importance,  was 
called,  as  the  public  interests  required  he 
should  be,  to  the  same  duties  of  a  cabinet  coun- 
selor of  the  President  which  had  been  dis- 
charged theretofore  by  the  four  Secretaries 
(State,  War,  Treasury,  and  Navy)  and  the 
Attorney  General.  This  fact  constituted  the 
first  important  alteration  in  the  arrangements 
of  superior  administrative  duty  and  accounta- 
bility which  had  occurred  since  1798,  when  the 
Department  of  the  Navy  was  established. 

Department  of  the  Interior. — By  an  act 
passed  at  the  close  of  Mr.  Polk's  administration 
(Mar.  3,  1S49),  in  order  to  relieve  the  Depart- 
ments of  State,  War,  Treasury,  and  Navy  of 
branches  of  public  business  which  now  required 
to  be  placed  in  other  hands,  a  new  executive 
department  was  organized,  to  be  called  the 
Department  of  the  Interior. 

(6  Op.  Atty.  Gen.,  326,  Mar.  8,  1854.) 


Department  of  Agriculture. — Was  estab- 
lished by  act  of  May  15, 1862  (12  Stat.,  387),  sec- 
tion 520,  Revised  Statutes,  but  was  not  made 
one  of  the  "executive  departments"  within  the 
meaning  of  section  158,  Revised  Statutes,  until 
the  act  of  February  9,  1889  (25  Stat.,  659). 

Department  of  Commerce. — Was  estab- 
lished as  an  executive  department,  under  the 
name  of  Department  of  Commerce  and  Labor, 
byact  of  February  14,  1903  (32  Stat.,  825).  Its 
name  was  changed  to  Department  of  Commerce 
by  act  of  March  4,  1913  (37  Stat.,  736). 

Department  of  Labor. — A\'as  established 
as  a  separate  executive  department  by  act  of 
March  4,  1913  (37  Stat.,  736),  which  amended 
the  act  establisliing  the  Department  of  Com- 
merce and  Labor  accordingly,  making  two  de- 
partments, viz,  the  Department  of  Commerce 
and  the  Department  of  Labor,  instead  of  one 
department,  as  theretofore. 

Precedence  of  executive  departraents 
and  Cabinet  oflS.cers. — The  Department  of 
the  Navy  is  sixth  in  order  of  precedence  among 
the  executive  departments  (see  sec.  158,  R.  S., 
above);  and  by  act  of  January  19, 1886  (24  Stat., 
1),  the  Secretary  of  the  Navy  is  sixth  in  order 
of  precedence  among  the  Cabinet  officers  in  the 
matter  of  succession  to  the  duties  of  the  Presi- 
dent, following  next  after  the  Postmaster 
General. 

Status  of  executive  departments. — Ex- 
ecutive departments,  with  their  heads,  are  not 
mere  agents  of  the  Government,  with  no  power 
except  such  as  is  expressly  conferred,  but  are, 
on  the  contrary,  parts  of  the  Government  itself, 
of  the  executive  and  coordinate  branch  of  the 
Government,  and  their  acts  when  executive 
are  the  acts  of  the  Government  itself.  (22  Op. 
Atty.  Gen.,  437,  444.) 

Nature  of  duties. — In  general,  the  official 
duties  of  the  head  of  one  of  the  executive  de- 
partments, whether  imposed  by  act  of  Congress 
or  by  resolution,  are  not  mere  ministerial  duties; 
the  head  of  an  executive  department  of  the 


190 


Executive  Departments.       PL  2.  REVISED  STATUTES 


Sec.  159. 


Government,  in  the  administration  of  the  vari- 
ous and  important  concerns  of  his  office,  is 
continually  required  to  exercise  judgment  and 
discretion;  he  must  exercise  his  judgment  in 
expoimding  the  laws  and  resolutions  of  Congress 
under  which  he  is,  from  time  to  time,  required 
to  act;  if  he  doubts,  he  has  a  right  to  call  on 
the  Attorney  General  to  assist  him  with  his 
counsel;  and  it  would  be  difficult  to  imagine 
why  a  legal  adviser  was  provided  by  law  for  the 
heads  of  departments,  as  well  as  for  the  Presi- 
dent, unless  their  duties  were  regarded  as  execu- 
tive,in  which  judgmentand  discretion  were  to  be 
exercised.  (Decatur  v.  Paulding,  14  Pet.,  497.) 
The  President  speaks  and  acts  through 
the  heads  of  the  several  departments  in  rela- 
tion to  subjects  which  appertain  to  their  respec- 
tive duties.  Hence  the  act  of  the  Secretary  of 
War  or  Secretary  of  the  Navy  in  a  matter  under 
his  jurisdiction  is  considered  as  being  in  legal 
contemplation  the  act  of  the  President.  (Wil- 
cox-?;.  Jackson,  13  Pet. ,498,  513;  U.S.i;.  Cutter, 
25  Fed.  Cas.  No.  14911;  see  also,  Wolsey  v.  Chap- 
man, 101  U.  S.,755,  769;  Williams  ^ij.  U.  S.,  1 
How.,  290;  Jones^;.  U.  S.,  137U.  S.,  202;  Truitt 
V.  U.  S.,  38  Ct.  Cls.,  398;  U.  S.  v.  Eliason,  16  Pet., 
291,  302;  Confiscation  Cases,  20  Wall.,  92,  109; 
U.  S.  V.  Farden,  99  U.  S.,  10, 19;  Runkle  -y.  U.  S., 
122  U.  S.,  543,  557;  U.  S.  v.  Fletcher,  148  U.  S., 
84,  88;  Wood  v.  Beach,  156  U.  S.,  548.)  Their 
acts  in  such  matters  may  be  presumed  to  have 
been  done  by  the  approbation  and  direction  of 
the  President  (Weller  v.  U.  S.,  41  Ct.  Cls.,  324; 
Adams  v.  U.  S.,  42  Ct.  Cls.,  211),  except  where 
he  must  act  judiciallv  (Truitt  v.  U.  S.,  38  Ct. 
Cls.,  398;  Runkle  v.  U.  S.,  122  U.  S.,  543,_  557), 
for  they  are  the  eyes  and  hands  of  the  President, 
to  execute  the  laws  and  his  executive  rules  and 
regulations  (6  Comp.  Dec,  61);  and  it  is  not  nec- 
essary that  orders  issued  by  them  should  contain 
express  reference  to  the  direction  of  the  Presi- 
dent; whether  he  is  named  or  not,  the  act  or 
order  is  to  have  legal  effect  as  by  construction 
the  act  or  the  order  of  the  supreme  executive 
authority,    civil  and  military,  of  the  United 


States.  (7  Op.  Atty.  Gen.,  453.)  See  also 
Adams  v.  U.  S.,  42  Ct.  Cls.,  191.  Many  things 
may  be  done  by  the  head  of  an  executive  de- 
partment without  the  actual  signature  of  the 
President  which  when  done  are  his  acts;  but 
in  such  case  the  document  should  declare  it 
to  be  the  act  of  the  President,  performed  by 
the  head  of  the  department  as  his  representa- 
tive.    (22  Op.  Atty.  Gen.,  82.) 

Where  an  order  purports  on  its  face  to 
be  issued  by  direction,  not  of  the  Presi- 
dent but  of  the  Secretary  of  War,  there  is 
nothing  to  show  that  the  President  exercised 
his  discretion  under  a  law  providing  that  the 
act  should  be  done  in  the  discretion  of  the 
President.  No  one  but  the  President,  or  the 
Secretary  acting  for  him  as  his  constitutional 
organ,  can  fulfill  the  requirements  of  the  act; 
nor  can  the  Secretary  delegate  to  a  subordinate 
the  authority  to  act  for  the  President  so  as  to 
fix  liability  upon  the  Government.  (Truitt  v. 
U.  S.,  38  Ct.  Cls.,  398.  See  also  Weller -w.  U.  S., 
41  Ct.  Cls.,  324,  336,  and  note  8,  sec.  1393,  R.  S.) 

In  all  the  cases  considered — and  we  are  aware 
of  no  authority  to  the  contrary — it  will  be  noted 
that  the  power  of  the  President  was  exercised 
through  the  head  of  the  department  and  not  by 
a  subordinate.     (Truitt?;.  U.  S.,  38  Ct.  Cls.,  404.) 

Tlie  signature  of  the  head  of  a  department 
does  not  recniire  the  use  of  pen  and  ink,  lield 
and  guided  by  the  hand  of  the  person  himself. 
The  impress  of  his  name  with  a  stamp  or 
copperplate  by  himself  or  in  his  presence  is 
legally  sufficient.     (1  Op.  Atty.  Gen.,  670.) 

Ofl&cers  of  the  Navy  are  not  agents  of 
the  Secretary  of  the  Navy,  but,  like  the 
Secretary  himself,  are  the  agents  and  repre- 
sentatives of  the  President,  who  is  the  Com- 
mander in  Chief  of  the  Army  and  Navy;  and 
any  authority  the  Secretary  may  exercise  over 
them  he  exercises  solely  as  representative  of 
the  President.  (McGowan  v.  Moody,  22  App. 
D.C.,148.) 

For  other  decisions,  see  note  to  section  417, 
Revised  Statutes. 


Sec.  159.  ["Department,"  defined.]  The  word  "Department,"  when  used 
alone  in  this  Title,  and  Titles  five,  six,  seven,  eight,  nine,  ten,  and  eleven,  means 
one  of  the  Executive  Departments  enumerated  in  the  preceding  section. 

have  no  existence  elsewhere.  Only  those 
bureaus  and  offices  can  be  deemed  bm-eaus  and 
offices  in  any  of  these  departments  which  are 
constituted  such  by  law  of  its  organization. 
The  department,  with  its  bureaus  or  offices,  is 
in  the  contemplation  of  the  law  an  establish- 
ment distinct  from  the  branches  of  the  public 
service  and  the  offices  thereof  which  are  under 
its  supervision.  Thus  the  office  of  postmaster 
or  of  collector  of  internal  revenue  or  of  pension 
agent  or  of  consul  is  not  properly  a  department 
office — not  an  office  in  the  department  having 
supervision  over  the  branch  of  the  public 
service  to  which  it  belongs.  True^  an  official 
relation  exists  here  between  the  office  and  the 
department,  one,  moreover,  of  subordination  of 
the  former  to  the  latter;  but  this  does  not  make 
the  office  a  part  of  the  department.  (15  Op. 
Atty.  Gen.,  262,  267;  26  Op.  Atty.  Gen.,  254.) 
The  Marine  Corps  headquarters  is  a  part 
of  the  Naval  Establishment,  but  it  is  not  a  part 


Application  op  Section. 

Departments  established  since  Revised 
Statutes. — The  terms  "departments"  and 
"executive  departments"  as  used  in  acts  of 
Congress  and  in  the  Revised  Statutes  invariably 
apply  to  one  or  more  of  the  several  executive 
departments  mentioned  in  section  158,  Revised 
Statutes,  or  included  within  the  terms  of  that 
section  by  subsequent  enactments,  unless  a 
different  meaning  is  clearly  indicated  by  the 
context.     (26  Op.  Atty.  Gen.,  209.) 

The  term  "executive  departments"  in  the 
Federal  statutes  refers  only  to  those  depart- 
ments specified  in  section  158,  Revised  Stat- 
utes, to  which  certain  other  departments  have 
since  been  added.  (22  Op.  Atty.  Gen.,  62.) 
See  note  to  section  158,  Revised  Statutes. 

Offices  not  at  seat  of  government. — The 
several  executive  departments  are  by  law 
established    at  the  seat  of  govermuent;  they 


191 


Sec.  169. 


rt.  2.  REVISED  STATUTES.        Executive  Departments. 


of  the  Navy  Department  as  established  at  the 
eeat  of  Government;  it  ia  under  the  supervision 
of  the  executive  department,  but  that  rehition 
to  the  department  is  not  the  same  as  being  a 
part  of  it.  (11  Comp.  Dec,  558;  file  4600,  Apr. 
10,  1SK)6;   21686,  Apr.  11,  1906.) 

Field  services,  Army,  Postal  Service. — 
The  term  "executive  department"  refers 
only  to  what  may  be  called  the  department 
proper  located  at  Wa.shin,<;ton,  and  does  not 
include  those  adjuncts  of  a  department  ensj^aged 
wholly  in  field  service;  nor  the  Army,  which  is 
not  a  part  of  the  War  Department  proper.  (4 
Comp.  Dec.,  551;  see  also  5  Comp.  Dec,  667; 
7  Comp.  Dec,  126.) 

Several  of  the  executive  departments  have 
field  services  as  parts  thereof,  and  have  bureaus 
and  offices  attached  to  them  by  law  with  their 
respective  field  services.  Certain  other  general 
Govermuent  establishments,  such  as  the  Recla- 
mation Service,  put  under  the  control  of  the 
Secretary  of  the  Interior  by  law,  are  not  parts 
of  the  Interior  Department  (within  the  sense 
of  the  public  printing  act).  Like  conditions 
are  found  in  other  departments  of  the  Govern- 
ment. The  Army  is  under  the  administrative 
control  of  the  Secretary  of  War,  but  is  not  a  part 
of  the  executive  department  called  the  War 
Department  located  at  the  seat  of  government, 
and  its  support  is  specifically  appropriated  for. 
A  like  condition  exists  as  to  the  Postal  Service 
as  distinguished  from  the  Post  Office  Depart- 
ment here  at  the  seat  of  government.  (11  Comp. 
Dec,  601;  27  Op.  Atty.  Gen.,  427;  13  Comp. 
Dec,  733;  15  Comp.  Dec,  297;  10  Comp.  Dec, 
771;  15  Comp.  Dec,  111;  20  Comp.  Dec,  4.) 

The  Reclamation  Service  is  not  a  department 
or  establishment  of  the  Government  in  Wash- 
ington, but  a  field  ser\ice.  (20  Comp.  Dec,  42.) 

A  clerk  in  a  navy  yard  is  not  a  clerk  in  an 
executive  department,  although  the  navy  yard 
is  under  the  supervision  of  one  of  the  executive 
departments.  But  a  clerk  who  is  performing 
duties  away  from  a  department  but  by  direct 
orders  from  and  under  supervision  of  the  de- 
partment is  regarded  as  a  clerk  in  the  depart- 
ment within  the  act  of  June  22,  1906,  section  5 
(34  Stat.,  449),  restricting  transfers  of  employees 
from  one  department  to  another  department. 
(26  Op.  Atty.  Gen.,  254.) 

Employees  of  the  navy  yard  and  gun  factory 
in  Washington  are  under  the  Navy  Depart- 
ment but  are  not  a  part  of  an  executive  de- 
partment.    (11  Comp.  Dec,  97.) 

Forest  Service,  Department  of  Agri- 
culture.— A  clerk  in  the  field  service  of  the 
Forest  Service,  Department  of  Agriculture,  is 
not  a  clerk  in  an  executive  department.  (27 
Op.  Atty.  Gen.,  100.) 

The  Forest  Service  in  Washington  is  part  of 
the  Department  of  Agriculture,  and  clerks  on 
the  rolls  of  the  Forest  Service  in  Washington 
are  clerks  in  an  executive  department.  (27 
Op.  Atty.  Gen.,  421.) 

That  portion  of  the  Forest  Service  in  the  field 
outside  of  Washington  is  not  a  part  of  the  De- 
partment of  Agriculture  proper,  and  printing  for 
such  field  service  is  not  printing  for  an  execu- 
tive department.  (14  Comp.  Dec,  723;  see  27 
Op.  Atty.  Gen. ,426.) 

Independent  commission,  board,  or  of- 
fice.— No  board,  bureau,  or  office  which  is  not 


expressly  or  by  implication  under  the  control 
of  one  of  the  executive  departments  can  be 
considered  as  belonging  properly  to  one  of 
them.  The  Civil  Service  Commission  is  not 
attached  in  any  way  to  any  of  the  executive 
departments,  nor  is  it  subject  in  any  wise  to 
the  control  of  any  of  the  heads  of  such  depart- 
ments.    (22  Op.  Atty.  Gen.,  62.) 

The  Civil  Service  Commission  is  not  an  exec- 
utive department  within  the  meaning  of  section 
190,  Revised  Statutes,  respecting  the  prosecu- 
tion of  claims.    (25  Op.  Atty.  Gen.,  6.) 

The  Government  Printing  Office  is  not  a 
bureau  or  division  of  either  of  the  executive 
departments.  (U.  S.  v.  Allison,  91  U.  S.,  303, 
reversing  10  Ct.  Cls.,  449.) 

The  office  of  the  warden  of  the  jail.  District 
of  Columbia,  is  a  bureau  or  division  of  the  De- 
partment of  the  Interior,  it  appearing  that  the 
whole  subject  of  the  jail  is  under  the  super- 
vision of  the  Secretary  of  the  Interior,  to  whom 
the  warden  is  required  to  report.  (Manning's 
case,  13  Wall.,  578;  explained  in  U.  S.  v.  Alli- 
son, 91  U.  S.,  307.) 

The  term  "department"  as  used  in  laws 
relating  to  the  civil  service  is  distinguished 
from  "office,"  "bureau,"  and  "branch,"  and 
subordinates  of  the  several  executive  depart- 
ments are  distinguished  from  employees  of  the 
last-mentioned  governmental  agencies.  The 
Government  Printing  Office,  the  Interstate 
Commerce  Commission,  and  the  Smithsonian 
Institution  are  independent  of  any  of  the  ex- 
ecutive departments  mentioned  in  section  158, 
Revised  Statutes.  The  Bureau  of  Insular  Affairs 
is  an  integral  part  of  the  War  Department.  (26 
Op.  Atty.  Gen.,  209.) 

The  accounting  oflB.cers  of  the  Treasury 
do  not  constitute  a  "department"  within  the 
meaning  of  an  act  of  Congress  referring  to  claims 
"rejected  or  reported  on  adversely  by  any 
court,  department,  or  commission  authorized 
to  hear  and  determine  the  same."  (U.  S.  v. 
Harmon,  147  U.  S.,  273.) 

Persons  employed  in  a  bureau  or  divi- 
sion of  a  department  are  as  much  employees 
in  a  department  as  the  messengers  and  others 
rendering  service  imder  the  immediate  super- 
vision of  the  Secretary.  (Manning's  case,  13 
Wall.,  578.) 

The  term  "executive  and  judicial  de- 
partments," as  used  in  section  87  of  the  public 
printing  act,  January  12,  1895  (28  Stat.,  622), 
was  intended  to  include  all  branches  of  the 
executive  department  of  the  Government  and 
is  not  limited  in  its  application  to  that  branch 
of  the  service  to  the  principal  executive 
departments,  enumerated  in  section  158, 
Revised  Statutes.  Accordingly,  held  that  it 
includes  printing  and  binding  for  the  Interstate 
Commerce  Commission  at  Washington.  (4 
Comp.  Dec,  273.) 

The  words  "branch"  and  "department" 
of  the  Government  are  not  used  synonymously 
(in  sec.  365,  R.  S.).  The  latter  refers  to  the  exec- 
utive departments  recognized  by  the  Constitu- 
tion and  regularly  established  by  law,  and  the 
former  to  those  parts  of  the  Government  which 
are  created  by  statute  as  independent  of  any 
de|)artnient,  such  as  the  Government  Printing 
Office,  the  Smithsonian  Institution,  and  other 
organizations.     (Perry  v.  U.  S.  28  Ct.  Cls.,  493.) 


192 


Executive  Departments.        Pt.  2.  REVISED  STATUTES. 


Sec.  161. 


under  the  authority  of  the  United  States,  which 
shall  have  been  created,  or  the  emoluments 
whereof  shall  have  been  increased,  during  such 
time."     (Const.,  Art.  I,  sec.  6,  clause  2.)] 

The  salary  of  the  Secretary  of  Labor  was 
fixed  at  $12,000  per  annum  by  act  of  March  4, 
1913  (37  Stat.,  736),  which  established  the  De- 
partment of  Labor. 

By  section  6,  legislative,  etc.,  appropriation 
act,  July  16, 1914  (38  Stat.,  509),  it  was  provided 
that  "the  rates  of  salary  or  compensation  of 
officers  or  employees  herein  appropriated  shall 
constitute  the  rate  of  salary  or  compensation 
of  such  officers  or  employees,  respectively, 
imtil  otherwise  fixed  by  annual  rate  of  appro- 
priation or  other  law." 


Sec.  160.  [Salaries  of  Heads  of  Departments.]  Each  head  of  a  Department 
is  entitled  to  a  salary  of  ten  thousand  dollars  a  year,  to  be  paid  monthly. — (3 
Mar.,  1873,  c.  226,  s.  1,  v.  17,  p.  486;  20  Jan.,  1874,  c.  11,  v.  18,  p.  4;  3  Mar., 
1875,  c.  130,  V.  18,  p.  396.) 

Amendments. — By  act  of  January  20,  1874 
(18  Stat.,  4),  the  salaries  of  heads  of  departments 
were  reduced  to  $8,000;  by  act  of  February  26, 
1907  (34  Stat.,  993),  their  salaries  were  increased 
to  $12,000  each;  by  act  of  February  17,  1909  (35 
Stat.,  626),  the  salary  of  the  Secretary  of  State 
was  again  fixed  at  $8,000,  until  it  was  increased 
to  $12,000  by  appropriation  in  the  act  of  March 
4,  1911  (36  Stat.,  1186).  [This  exception  to  the 
general  law  fixing  salaries  of  heads  of  depart- 
ments was  made  in  the  case  of  the  Secretary  of 
State,  in  order  to  render  eligible  for  that  office 
a  former  member  of  the  Senate  who  would 
otherwise  have  been  disqualified  under  the 
constitutional  provision  that  "no  Senator  or 
Representative  shall,  during  the  time  for  which 
he  was  elected,  be  appointed  to  any  civil  office 

Sec.  161.  [Departmental  Regulations,  Property  and  Records.]  The  head  of 
each  Department  is  authorized  to  prescribe  regulations,  not  inconsistent  with 
law,  for  the  government  of  his  Department,  the  conduct  of  its  officers  and  clerks, 
the  distribution  and  performance  of  its  busmess,  and  the  custody,  use,  and 
preservation  of  the  records,  papers,  and  property  appertaining  to  it. — (27  July, 
1789,0.  4,  V.  1,  p.  28;  15  Sept.,  1789,  c.  14,  v.  1,  p.  68;  7  Aug.,  1849,  c.  7,  v.  1, 
p.  49;  2  Sept.,  1789,  c.  12,  v.  1,  p.  65;  8  June,  1872,  c.  335,  v.  17,  p.  283;  30 
Apr.,  1798,  c.  35,  v.  1,  p.  553;  22  June,  1870,  c.  150,  s.  8,  v.  16,  p.  163; 3  Mar., 
1849,  c.  108,  V.  9,  p.  395;  15  Aug.,  1876,  c.  287,  s.  3,  v.  18,  p.  169.) 

The  "distribution  and  performance"  of  the 
business  of  the  Department  of  the  Navy, 
and  the  custody  of  its  records  and  property 
are  provided  for  by  sections  418-420,  Re- 
vised Statutes. 

Regulations  for  the  purchase,  preservation,  and 
disposition  of  supplies,  etc.,  for  the  Navy 
are  to  be  made  by  the  President,  under  sec- 
tion 1549,  Revised  Statutes. 

Jurisdiction  over  property  accounts  in  the  Navy 
is  conferred  upon  the  Paymaster  General  of 
the  Navy  by  act  of  March  29, 1894  (28  Stat., 

47). 
Offenses  against  public  property  by  persons  m 

the  naval  service  are  made  punishable  by 

section  1624,  Revised  Statutes,  articles  4, 

8,  and  14. 
Inventories  of    property   in   departments    are 

required  by  section  197,  Revised  Statutes. 


Distribution  of  Business. 

Custody  of  Property  and  Records. 

Navy  Regulations. 

Constitutionality  and  Necessity  of 
Laws  Authorizing  Regulations. 

Regulations  Defined. 

Weight  of  Regulations. 

Limitations    upon    Power   to    Make 
Regulations. 

Rules  for  Testing  Validity  of  Regu- 
lations. 
IX.  Waiver  of  Regulations. 


I. 

II. 

III. 

IV. 

V. 

VI. 

VII. 

VIII. 


I.  Distribution  of  Business. 

Delegation  of  duties  by  head  of  depart- 
ment.— As  Congress  well  knew  that  it  would 
be  impossible  for  the  head  of  an  executive 
department  to  give  a  hearing  in  person  to  all 
matters  coming  before  that  department,  it  has 
authorized  the  head  of  each  department  to  pre- 
scribe rules  and  regulations  for  the  conduct  of 
the  officers  and  clerks  and  the  distribution  and 
performance  of  its  business.  In  pursuance  of 
this  authority  the  head  of  a  department  may 
intrust  the  determination  of  matters  to  his  as- 
sistant, subject  of  course  to  his  approval.  The 
actions  of  the  assistant  on  matters  of  this  kind 
are  merely  those  of  a  master  or  referee  of  a  court 
to  hear  proofs  and  report  his  findings  of  fact  and 
probably  conclusions  of  law.  It  is  the  judge  of 
the  court,  or  in  cases  of  this  kind  the  head  oi 
the  department,  who  finally  acts  on  the  matter, 
either  adopting  the  recommendations  of  the  ref- 
eree or  assistant  or  rejecting  them.  It  is  the 
head  of  the  department  who  promulgates  the 
conclusion  as  his  own,  independent  of  what  the 
recommendations  of  his  assistant  might  have 
been.  The  courts  will  conclusively  presume 
that  the  head  of  the  department  acted  on  the 
testimony  submitted  to  him  as  fully  as  if  he  had 
been  present  at  the  hearing  and  had  not  sub- 
mitted it  to  one  of  his  assistants.  (Lewis  Pub- 
lishing Co.  V.  Wyman,  152  Fed.  Rep.,  787).  [In 
this  case  the  statute  required  that  a  hearing  be 
had,  and  the  court  held  that  the  head  of  the  de- 


193 


Sec.  161. 


Pt.2.  REVISED  STATUTES.        Executive  Departments. 


partment  properly  aasigned  the  duty  of  con- 
diictinc;thehearinp  to  one  of  hia  assistants.]  To 
same  effect,  Shillito  Co.  v.  Mct'lung,  51  Fed. 
Rep.,  8(i8;  Parish  v.  U.  S.,  100  U.  S.,  500;  Chad- 
wick  v.  U.S.,  3  Fed. Rep.,75C;  U.S.i;.Adama,24 
Fed.  Rep.,  348;  Smith  v.  Hitchcock,  226  U.  S., 
53;  1  Comp.  Dec,  370;  3  Corap.  Dec,  730;  4 
Comp.  Dec,  462.  See  also  note  to  section  177, 
Revised  Statutes. 

Transfer  of  duties. — This  section  does  not 
authorize  the  Secretary  of  Commerce  and  Labor 
to  transfer  to  the  disbursing  clerk  of  that  de- 
partment the  duties  formerly  performed  by  the 
dL«bursing  clerk  of  the  Bureau  of  the  Censvis, 
in  the  same  department.  The  position  of  dis- 
bursing clerk  in  the  Census  Office  was  estab- 
lished oy  Congress  and  has  since  been  regularly 
appropriated  for.  Such  position  must  there- 
fore be  regarded  as  essential  to  the  Census  or- 
ganization until  Congress  other\\ise  pro-\ides, 
and  it  would  be  ' '  inconsistent  with  law  "  within 
the  meaning  of  this  section  to  make  the  pro- 
posed change.     (29  Op.  Atty.  Gen.,  247.) 

Authority  and  signature  of  assistant. — 
So  long  as  the  powers  delegated  to  the  assistant 
secretary  by  his  superior  remain  unrevoked, 
the  authority  of  the  former  is  coordinate  and 
concurrent  with  that  of  the  latter.  "\Mien  the 
assistant  acts  at  a  time  the  Secretary  is  not 
absent  or  sick,  under  a  regulation  made  by  the 
Secretary'  prescribing  his  powers  and  duties, 
he  should  sign  with  his  own  proper  official 
designation,  ^\^len  the  Secretary  is  absent  or 
eick,  if  the  assistant  is  in  charge  of  the  depart- 
ment in  pursuance  of  section  177  or  179,  Re- 
vised Statutes,  he  should  sign  as  Acting  Secre- 
tary.    (19  Op.  Atty.  Gen.,  133.) 

II.  Custody  of  Property  and  Records. 

Authority  of  Secretary. — From  this  sec- 
tion it  appears  that  the  head  of  a  department 
has  full  charge  and  control  of  all  the  records  and 
papers  belonging  to  the  department.  His  au- 
thority to  prescribe  whatever  rules  and  regula- 
tions he  may  deem  proper  regarding  their  use 
and  custody  is  unlimited  so  long  as  '  not  incon- 
sistent with  law."  Such  broad  discretion 
would  necessarily  include  the  right  to  deter- 
mine whether  certain  documents  should  or 
should  not  be  taken  from  the  files  of  the  de- 
partment for  any  purpose  except  for  use  in 
connection  with  departmental  business  and  in 
accordance  -with  his  determination  so  to  instruct 
the  chiefs  of  bureaus  or  other  officers  concerned . 
(25  Op.  Atty.  Gen.,  326.) 

That  the  head  of  a  department  may  legally 
prohibit  an  officer  from  producing  in  court  or 
elsewhere  official  records  was  authoritati^'ely 
decided  in  Boske  v.  Comingore,  177  U.  S.,  459. 
(25  Op.  Atty.  Gen.,  326.) 

The  head  of  an  executive  department  may 
properly  decline  to  furnish  official  records  of 
his  department  or  copies  thereof  or  to  give  testi- 
mony in  a  cause  pending  in  court  between 
private  parties  respecting  facts  which  haAe 
come  to  his  knowledge  officially,  whenever  in 
his  judgment  the  production  of  such  papers  or 
the  gi\T.ngof  such  testimony  might  prove  prej- 
udicial for  any  reason  to  the  Government  or  to 
the  public  interests.    (25  Op.  Atty.  Gen.,  326.) 


The  head  of  an  executive  department  may 
legally  prohibit  the  chief  of  a  bureau  from  pro- 
ducing in  court  any  official  records  of  the  de- 
partment or  certified  copies  thereof  in  obedience 
to  a  subpoena  duces  tecum,  and  from  making 
or  certifying  copies  of  such  official  records.  (2.5 
Op.  Atty.  Gen,,  326.) 

The  records  of  executive  departments 
are  quasi-confidential  in  their  nature  and 
must  De  classed  as  pri\dleged  communications 
whose  production  can  not  be  compelled  by  a 
court  without  express  authority  of  a  law  of  the 
United  States.  (25  Op.  Atty.  Gen.,  326.)  See 
Navy  Department  General  Order  No.  121,  Sep- 
tember 17,  1914. 

Transfer  of  public  property. — The  duties 
of  a  public  officer  as  custodian  of  public  prop- 
erty do  not  impliedly  authorize  him  to  transfer 
such  property  to  some  other  branch  or  estab- 
lishment of  the  Government;  on  the  contrary, 
such  duties  impliedly  prohibit  him  from  trans- 
ferring the  possession  of  property  committed  to 
his  care  to  some  one  else.  Even  though  the 
transfer  of  property  would  be  to  the  pecuniary 
advantage  of  the  Government,  and  even  though 
such  transfer  if  made  would  meet  with  the 
approval  of  Congress,  the  custodian  of  the  prop- 
erty has  no  legal  authority  to  make  such  transfer. 
It  is  for  Congress,  under  the  constitutional 
grant  with  respect  to  the  regulation  and  dispo- 
sition of  the  territory  and  other  property  of  the 
United  States,  to  say  what  shall  be  done  with 
the  property  in  question;  mere  custodians  have 
no  such  authority.  (29  Op.  Atty.  Gen.,  524; 
compare  17  Op.  Atty.  Gen.,  480.)  See  also 
note  to  section  355,  Revised  Statutes. 

Ownership  of  public  property. — The  ar- 
chives or  other  property  of  any  department  are 
not  in  the  possession  of  the  head  of  the  depart- 
ment, chief  of  bureau,  or  clerk  under  either, 
but  in  the  possession  of  the  United  States. 
Hence  a  party  can  not  by  writ  of  replevin 
against  such  head  of  department  or  other  public 
officer  take  papers  from  the  pubUc  archives  on 
the  allegation  of  their  being  his  private  prop- 
erty. By  the  writ  of  reple\an  a  party  claiming 
the  rightful  possession  of  a  tiling  takes  it  away 
from  another  party  alleged  to  be  wrongfully  in 
possession  of  the  thing.  There  must  be  a  party 
possessory,  as  well  as  a  party  claiming  adverse 
right  of  possession.  A  writ  of  reple\dn  issued 
against  a  pubUc  officer  in  such  a  case  is  a  nulUty. 
It  is  the  right  and  duty  of  the  head  of  the 
department,  and  of  all  persons  under  his  au- 
thority, to  resist  by  force  any  attempt  by  writ 
of  replevin  or  otherwise  to  abstract  any  docu- 
ment from  the  archives  of  the  Government. 
(6  Op.  Atty.  Gen.,  7.) 

For  other  cases,  see  note  to  section  418, 
Revised  Statutes. 

III.  Navy  Regulations. 

"There  are  two  general  classes  of  reg- 
ulations issued  by  the  Secretary  of  the 

Navy,  namely,  first,  those  which  are  expressly 
approved  by  the  President  in  accordance  with 
an  order  issued  by  Secretary  Moody,  June  22, 
1904.  These  are  known  as  Navy  Regulations 
and  are  specifically  stated  to  be  issued  by  au- 
thority of  section  1547,  Revised  Statutes;  and 


194 


Executive  Departments.        PL  2.  REVISED  STATUTES. 


Sec.  161. 


Becond,  those  wliich.  are  not  expressly  approved 
by  the  President,  such  as  Naval  Instructions, 
Forms  of  Procediire  for  Courts  and  Boards  in  the 
Navy  and  Marine  Corps,  [now  entitled  '  Naval 
Courts  and  Boards'],  Uniform  Regulations, 
Signal  Books  and  Drill  Books,  General  Orders, 
Court-Martial  Orders,  Manual  for  Recruiting 
Officers,  Manual  Governing  the  Transportation 
of  Enlisted  Men,  Manual  for  the  Medical  De- 
partment, and  Rules  for  Target  Practice  and 
Engineering  Competitions.  These  publications 
have  full  force  and  effect  as  regulations  for  the 
guidance  of  all  persons  in  the  Naval  Establish- 
ment (Art.  901  (3),  Navy  Regs.,  1913),  and  have 
been  regarded  as  authorized  by  section  161, 
Revised  Statutes  (File  3980-942,  Apr.  10, 1914), 
which  has  never  been  held  to  require  the  Presi- 
dent's approval."  (File  3980-1044,  Mar.  19, 
1915.) 

Even  under  section  1547,  Revised  Statutes, 
express  approval  of  the  President  is  not  re- 
quired by  law,  although  as  a  general  policy  it 
is  obtained  in  practice.  (File  3980-1044,  Mar. 
19,  1915,  citing  Adams  v.  U.  S.,  42  Ct.  Cls.,  191; 
see  also  16  Comp.  Dec,  354,  358;  compare  Phil- 
lips V.  Grain  Corporation,  279  Fed.  Rep.  244, 
248.) 

Regulations  of  the  United  States  Naval 
Academy  are  presiunably  issued  by  the  Sec- 
retary of  the  Navy  pursuant  to  section  1547, 
Revised  Statutes.  (Weller  v.  U.  S.,  41  Ct.  Cls., 
324,  343;  but  see  contra  file  313-51,  Mar.  19, 
1907.)  [These  regulations,  however,  are  not 
issued  with  the  express  approval  of  the  Presi- 
dent as  is  the  practice  under  that  section.] 

Regulations  governing  deck  courts  in  the 
Navy  are  to  be  prescribed  by  the  President. 
(Act  of  February  16,  1909,  section  5,  35  Stat., 
621). 

IV.    Constitutionality   and    Necessity   of 
Laws  Authorizing  Regulations. 

Not  a  delegation  of  legislative  power. — 

The  Supreme  Court  has  held  that  under  the 
Constitution  the  power  of  legislation  possessed 
by  Congress  can  not  be  delegated  (Field  v. 
Clark,  143  U.  S.,  649;  see  also  Cooperville,  etc., 
Co. -y. Lemon,  163  Fed.  Rep.,  147);  butthe  power 
conferred  by  these  laws  is  in  no  sense  a  dele- 
gated power  of  legislation.  (Butler  v.  WTiite, 
83  Fed.  Rep.,  578,  reversed,  on  other  grounds, 
171  U.  S.,  379;  25_Op.  Atty.  Gen.,  249.)  Con- 
gress "may  commit  something  to  the  discretion 
of  the  other  departments,  and  the  precise  bound- 
ary of  this  power  is  a  subject  of  delicate  and 
difficult  inquiry,  into  which  a  court  will  not 
enter  unnecessarily."  (Wayman  v.  Southard, 
per  Chief  Justice  Marshall,  10  WTieat.,  1.) 
\\Tiile  of  course  Congress  can  not  constitu- 
tionally delegate  to  the  President  (or  head  of 
a  department)  legislative  powers,  "it  may, 
in  conferring  powers  constitutionally  exer- 
cisable by  him,  prescribe  or  omit  prescribing, 
special  rules  of  their  administration,  or  may 
specially  authorize  him  to  make  the  rules. 
When  Congress  neither  prescribes  them,  nor 
expressly  authorizes  him  to  make  them,  he  has 
the  authority,  inherent  in  the  powers  conferred, 
of  making  regulations  necessarily  incidental  to 
their  exercise."  (McCall's  Case,  15  Fed.  Cas., 
1230.)    The  power  to  make  laws  can  not  be  dele- 


gated to  an  executive  department;  but  prescrib- 
ing conditions  to  enforcement  of  law  is  not  legis- 
lation. (Dunlap  V.  U.  S.,  33  Ct.  Cls.,  135;  173 
U.  S.,  65.)  Section  161,  Revised  Statutes,  con- 
fers administrative  power  only,  and,  under  the 
guise  of  regulation,  legislation  can  not  be  exer- 
cised. (U.  S.  V.  United  Verde  Copper  Co.,  196 
U.  S.,  207;  U.  S.  v.  George,  228  U.  S.,  14.)  That 
Congress  may  enact  a  law  and  delegate  the 
power  to  make  all  needful  rules  and  regulations 
not  inconsistent  therewith  is  clear.  This  is  not 
a  grant  of  legislative  power;  it  is  only  an  au- 
thority to  determine  a  fact  upon  which  the 
operation  of  the  law  is  made  to  depend. 
(Cooperville,  etc.,  Co.  r.  Lemon,  163  Fed.  Rep., 
147 . )  The  operation  of  the  law  may  be  post- 
poned until  the  regulations  are  issued.  (Dun- 
lap  v.  U.  S.,  173  U.  S.,65.) 

Congress  can  not  legislate  in  detail. — To 
attempt  to  regulate  by  statute  the  minute 
movements  of  every  part  of  the  complicated 
machinery  of  government  would  evince  a  most 
unpardonable  ignorance  on  the  subject.  Whilst 
the  great  outlines  of  its  movements  may  be 
marked  out,  and  limitations  imposed  on  the  ex- 
ercise of  its  powers,  there  are  numberless  things 
which  must  be  done  that  can  neither  be  antici- 
pated nor  defined,  and  which  are  essential  to  the 
proper  action  of  the  government.  (U.  S.  v. 
Macdanicl,  7  Pet.,  14;  U.  S.  v.  Webster,  28  Fed. 
Cas.,  515;  Lewis  Publishing  Co.  v.  Wyman,  182 
Fed.  Rep.,  13, 16;  Haas  v.  Henkel,  216  U.  S.,462, 
480;  6  Op.  Atty.  Gen.,  358.)  Congress  can  only 
legislate  in  a  general  way,  and  large  powers  are 
necessarily  intrusted  to  the  different  depart- 
ments. They  really  exercise  in  this  way  by 
delegation,  and  necessarily  so,  for  the  purpose  of 
carrying  on  the  vast  affairs  of  the  Government 
and  its  details,  authority  which  in  a  strict  sense 
pertains  to  Congress.  (21  Op.  Atty.  Gen.,  438, 
439.)  The  authority  thus  exercised  by  heads 
of  departments  is  "quasi  legislative."  (16  Op. 
Atty.  Gen.,  495.) 

Constitution  vests  discretion  in  Con- 
gress.— The  Constitution  gives  Congress  power 
to  make  all  laws  necessary  and  proper  for  carry- 
ing into  execution  the  powers  vested  by  that 
instrument  in  the  Government  of  the  United 
States  or  in  any  department  or  officer  thereof. 
That  power  was  exercised  by  Congress  when  it 
authorized  the  head  of  a  department  to  provide 
by  regulations  not  inconsistent  with  law  for  the 
government  of  his  department,  the  conduct  of 
its  officers  and  clerks,  the  distribution  and  per- 
formance of  its  business,  and  the  custody,  use, 
and  preservation  of  the  records,  papers,  and 
property  appertaining  to  it.  A  particular  regu- 
lation may  not  have  been  absolutely  or  indis- 
pensably necessary  to  accomplish  the  objects 
indicated  by  the  statute;  but  that  is  not  the 
test  to  be  appUed  when  we  are  determining 
whether  an  act  of  Congress  transcends  the  pow- 
ers conferred  ui^on  it  by  the  Constitution.  Con- 
gress has  a  large  tUscretion  as  to  the  means  to  be 
employed  in  the  execution  of  a  power  conferred 
upon  it.    (Boske  v.  Comingore,  177  U.  S.,  459.) 

V.  "Regulations"  Defined. 

Must  be  general. — A  regulation  is  a  general 
rule  which  affects  a  class  of  persons,  and  not 
merely  an  order  or  instruction  issued  in  a  par- 


195 


Sec.  161. 


PL  2.  REVISED  STATUTES.        Executive  Departments. 


ticular  case.  (Harvey  v.  U.  S.,  3  Ct.  Cls. ,  38, 42; 
Lanclram  v.  U.  S.,  IG  Ct.  Cls.,  74.)  The  term 
' '  regulation ' '  implies  a  rule  for  a  general  course 
of  actioHj  and  does  not  apply  to  a  case  in  which 
specific  instructions  are  i.s.sued  applicable  to 
that  case  alone.  (Christopher  v.  City  of  New 
York,  13  Barb.,  5G7,  573.)  The  term  "regula- 
tion" implies  uniformity  in  operation;  it  must 
be  general  in  .scope  and  not  discriminate  in  its 
application.  The  function  of  an  order  relates 
more  particularly  to  the  execution  or  enforce- 
ment of  a  rule  pre\nously  made.  (Morris  v. 
Board  of  Pilot  Commissioners,  7  Del.  Ch.,  136; 
30  Atl.,  6G7,  6G9;  Indianapolis  Union  By.  Co.  v. 
Dohn,  153  Ind.,  10,  45  L.  R.  A.,  427.)  Regula- 
tions must  be  iniiform  and  applicable  to  all 
officers  under  the  same  circumstances.  (U.  S. 
V.  Ripley,  7  Pet.,  18.)  [Congress  has  recognized 
the  distinction  between  regulations  and  occa- 
sional orders,  as,  for  example,  in  the  act  of 
July  31,  1894,  section  12  (28  Stat.,  209),  which 
provided  that  "The  Secretary  of  the  Treasury 
shall  prescribe  suitable  rules  and  regulations, 
and  may  make  orders  in  particular  cases,  re- 
laxing the  requirement  of  mailing  or  otherwise 
sending  accounts  as  aforesaid,"  etc.]  The 
decision  of  the  head  of  a  department  is  not 
in  any  sense  a  regulation  under  section  161, 
Revised  Statutes.  Such  decision  is  entitled  to 
and  receives  great  respect  and  consideration  by 
the  court,  but  it  is  not  binding  upon  us  as  a  valid 
regulation  of  the  Department,  and  can  not  be  so 
regarded.  (Smith  v.  U.  S.,  170  U.  S.,  372,  380.) 
The  power  to  make  regulations  does  not  contem- 
plate pro  re  nata  interventions  by  the  Secretary 
of  the  Navy.     (15  Op.  Atty.  Gen.,  634.) 

A  regulation  is  an  order  in  cases  in  which 
it  applies,  as  much  so  as  a  special  command 
reiterated  on  each  particular  occasion.  (30  Op. 
Atty.  Gen.,  376, 171  S.  and  A.  Memo.,  3611;  file 
26254-1451:11,  Apr.  12,  1915.) 

Not  limited  to  a  particular  book. — The 
expression  "United  States  Naval  Regulations." 
as  used  in  the  act  of  March  2, 1895  (28  Stat. ,  962) , 
has  been  held  by  the  Comptroller  of  the  Treasury 
to  include  Uniform  Regulations  and  a  state- 
ment of  the  Chief  of  the  Bureau  of  Navigation 
giving  the  number  and  character  of  articles  of 
clothing  required  as  the  necessary  outfit  of  offi- 
cers and  seamen;  although  the  Comptroller 
stated  that  a  strict  construction  of  the  expres- 
sion might  limit  it  to  the  volume  known  as 
"Navy  Regulations."     (2  Comp.  Dec.,  150.) 

All  orders  not  included. — Publications  or 
orders  of  the  Secretary  of  the  Navy  or  of  bureau 
chiefs  or  of  any  officer  may  be  binding  upon 
officers  of  the  Navy,  but  they  are  not  properly 
described  as  "lawful  regulations  issued  by  the 
Secretary  of  the  Navy,"  the  violation  of  which 
is  punishable  under  the  Articles  for  the  Gov- 
ernment of  the  Navy  (sec.  1624,  R.  S.).  Such 
regulations  are  those  described  in  sections  1547 
and  1548,  Revised  Statutes,  and  consist  of 
orders,  regulations,  and  instructions  issued  by 
the  Secretary  prior  to  July  14,  18G2,  with  such 
alterations  as  he  may  have  since  adopted  with 
the  approval  of  the  President.  (25  Op.  Atty. 
Gen.,  270).  But  see  above,  "III.  Navy  Regu- 
lations." 

Usages  included. — A  regulation  within  the 
meaning  of  this  section  need  not  be  promul- 
gated in  any  set  form,  nor  in  WTiting,  but  may 


con.sist  of  established  usages  and  practices 
which  have  become  a  kind  of  common  law  of 
the  Department.  (Haas  v.  Henkel,  216  U.S., 
462 ;  167  Fed.  Rep.,  211.)  A  usage  becomes estab- 
ILshed  in  no  other  way  than  by  the  practice  of 
the  department;  and  the  same  authority  which 
establishes  a  usage  may  change  it,  for  a  cus- 
tomary law  is  abrogated  by  the  establishment 
of  a  contrary  custom;  but  whUe  it  remains  un- 
changed, it  is  binding.  (U.  S.  v.  Web.ster,  28 
Fed.  Cas.,  509.)  No  change  in  such  usage  can 
have  a  retroactive  effect  but  must  be  limited  to 
the  future.  (U.  S.  v.  Macdaniel,  7  Pet.,  1,  15.) 
In  the  Webster  case  (above),  with  reference  to 
the  Army,  the  court  said:  "Such  customs  and 
usages  in  the  military  service  may  be  proved 
by  the  same  kind  of  evidence  as  is  competent 
to  prove  a  custom  in  other  cases,  but  the  best 
e\adence  will  be  the  regulations  of  the  Army, 
printed  and  promulgated  by  the  War  Depart- 
ment; for  these  regulations,  if  I  have  a  correct 
view  on  the  subject,  are  nothing  more  than  an 
authoritative  digest  of  these  customs.  These 
usages  and  customs,  the  gradual  product  of  time 
and  circumstances,  constitute  a  sort  of  comple- 
ment to  the  statute  law  upon  the  subject;  and 
they  may  affect  the  rights  and  obligations  of 
those  who  are  subject  to  them  in  various  ways; 
they  may  regulate  and  define  their  priA-ileges 
and  immunities,  the  nature  of  the  services 
which  may  be  required  of  them,  and  the  kind 
or  amount  of  compensation  to  which  they  may 
be  entitled  for  the  performance  of  ser^dce3 
superadded  to  the  ordinary  duties  attached  to 
their  office.  But  all  tliis  must  be  consistent 
with  the  will  of  the  legislature,  expressed  in  the 
public  laws  and  not  in  opposition  to  it."  And 
a  practice  of  disregarding  the  terms  of  an  ex- 
press provision  of  regulations,  although  with 
the  acquiescence  of  the  head  of  the  dejmrtment 
who  issued  them,  will  not  accomplish  a  repeal 
of  the  regulation,  which  nevertheless  continues 
in  effect.  (Arthur  v.  U.  S.,  16  Ct.  Cls.,  433.) 
There  can  be  no  such  thing  as  a  legal  custom  to 
disregard  a  valid  regulation.  (G.  C.  M.  O.  43, 
1906,  p.  3.)  Customs  and  usages  of  the  ser\dce, 
whether  originating  in  tradition  or  in  specific 
orders  or  rulings,  are  now,  as  such,  not  numerous 
in  the  Army  (or  Navy),  a  large  proportion,  in 
obedience  to  a  natural  law,  having  changed 
their  form  by  becoming  merged  in  written  regu- 
lations. (1  Winth.,  42;  file  26836-7:  35,  Feb.  13, 
1913,  p.  4.) 

Classes  of  Regulations. — Regulations  of 
the  Army  [and  Na\y]  consist  of  four  classes: 
(1)  General  orders  promulgated  by  the  Presi- 
dent under  his  constitutional  prerogative  as 
Commander  in  Chief;  (2)  departmental  regu- 
lations prescribed  by  tne  Secretary  under  sec- 
tion 161,  Revised  Statutes;  (3)  regulations  not 
approved  by  Congress  but  made  by  the  Presi- 
dent in  the  exercise  of  legislative  authority 
conferred  by  Congress  [see  sec.  1547,  R.  S.]; 
and  (4)  regulations  expressly  approved  by  Con- 
gress. (In  re  Smith,  23  Ct.  Cls.,  452.)  Orders, 
regulations,  and  instructions  issued  by  the 
Secretary  of  the  Na-vy  under  section  1547, 
Revised  Statutes,  are  presumed  to  be  issued 
with  the  approval  of  the  President,  though  they 
do  not  bear  his  signature.  (Adams  v.  United 
States,  42  Ct.  Cls.,  191,211;  file  3980-1044,  Mar. 
19,  1915.) 


196 


Executive  Departments.        Pt.2.  REVISED  STATUTES. 


Sec.  161 


VI.  Weight  of  Regulations. 

Have  force  of  law. — Regulations  issued  by 
the  head  of  a  department  have  the  force  and 
effect  of  law  and  are  as  binding  as  if  incorpor- 
ated in  the  statute  law  of  the  United  States. 
(Stegallr.Thurman,  175 Fed.  Rep.,  813;  U.  S.  v. 
Barrows,  24  Fed.  Cas.  No.  14529;  Haas  i;.  Henkel, 
216  U.  S.,  462;  Ex  parte  Reed,  100  U.  S.,  13; 
U.  S.  V.  Eliason,  16  Pet.,  291;  Gratiot  v.V.  S., 
4  How.,  80;  U.  S.  v.  Runkle,  122  U.  S.,  543; 
U.  S.  V.  Freeman,  3  How.,  556;  Kurtz -i).  Moffit, 
115  U.  S..  487, 503;  U.  S.  v.  Hutton,  26  Fed.  Cas. 
No.  15433;  In  re  Huttman,  70  Fed.  Rep.,  699; 
In  re  Weeks,  82  Fed.  Rep.,  729;  Flynn?;.  Fuell- 
hart,  106  Fed.  Rep., 911;  In  re  Lamberton,  124 
Fed.  Rep.,  446;  Alvord  v.  U.  S.,  95  U.  S.,  356; 
Peters V. U.S. ,33 Pac,  1031, 2 Okla.,  116;  Stans- 
bury  V.  U.  S.,  37  Pac,  1083,  2  Okla.,  151;  Demp- 
eey  v.  U.  S.,  44  Pac,  382,  2  Okla.,  151;  Katzer 
V.  U.  S.,  49  Ct.  Cls.,  294,  decided  Feb.  9,  1914, 
No.  31888;  Adams  ii.U.  S.,  42  Ct.  Cls.,  191;  Smith 
V.  Whitney,  116,  U.  S.  180;  Pundti;.  Pendleton, 
167  Fed.  Rep.,  997.) 

Anny  regulations  concerning  the  procedure 
of  courts-martial  have  the  force  of  law.  (23  Op. 
Atty.  Gen.,  27.) 

The  Navy  Regulations  have  the  force  and 
effect  of  positive  law.     (27  Op.  Atty.  Gen.,  257.) 

It  is  well  settled  that  regulations  when  di- 
rectly approved  by  Congress  have  the  absolute 
force  of  law,  equally  with  other  legislative  acts, 
until  repealed  by  the  same  power.  Congress 
has  treated  regulations  so  approved  by  it  as 
having  the  same  force  as  congressional  enact- 
ments. (In  re  Smith,  23  Ct.  Cls.,  459.)  Wlien 
Congress  expressly  adopted  and  ratified  certain 
general  orders  issued  by  the  Secretary  of  the 
Navy,  specifically  describing  them,  and  pro- 
vided that  they  "shall  have  the  force  of  law," 
and  further  provided  that  a  certain  general 
order,  which  was  quoted  in  the  act,  "be  and 
the  same  is  hereby  confirmed,"  it  was  held  by 
the  Attorney  General  that  these  orders  "were 
placed  upon  the  footing  of  legislative  acts,  and 
were  incorporated  into  the  statute  law  on  the 
subject  of  the  Navy,"  and  accordingly  that 
alterations  therein  could  be  made  only  by  Con- 
gress. (13  Op.  Atty.  Gen.,  10;  see  also  Maddux 
V.  U.  S.,  20  Ct.  Cls.,  193.)  [This  opinion  of  the 
Attorney-General  would  apparently  be  appli- 
cable to  any  regulation  or  order  which  had 
been  specifically  adopted  by  Congress,  either 
expressly  or  by  necessary  implication,  as  for 
example,  executive  orders  fixing  the  pay  of 
enlisted  men  in  the  Na^'y,  which  were  adopted 
by  Congress  in  the  naval  appropriation  act 
which  made  an  increase  of  10  per  cent  in  the 
existing  pay  of  enlisted  men  and  provided  that 
such  pay  should  continue  in  effect  until 
changed  by  Congress.  (Act  May  13,  1908,  35 
Stat.,  128.)  File  26509-106;  see  Comp.  Dec, 
May  19,  1915,  file  26254-1784.] 

Must  be  consistent  with  law. — Regula- 
tions not  approved  by  Congress  have  the  force 
of  law  only  when  founded  on  the  President's 
constitutional  powers  as  Commander  in  Chief 
of  the  Army  and  Navy,  or  when  consistent 
with  and  supplementary  to  the  statutes  which 
have  been  enacted  by  Congress.  (In  re  Smith, 
23  Ct.  Cls.,  452.)  Regulations  to  have  the  force 
of  law  must  be  consistent  with  the  statutes,  and 


the  Supreme  Court  of  the  United  States  has 
never  held  otherwise.  (U.  S.  v.  Symonds,  120 
U.  S.  46;  U.  S.  V.  Ross,  239  U.  S.,  530;  Scheide  v. 
U.  S.  52  Ct.  Cls.,  247.)  The  regulations  of  the 
Army  and  Navy  have  the  force  of  law  with  respect 
to  a  person  or  subject  matter  of  which  the  Secre- 
tary has  control,  but  to  have  the  force  of  law 
they  must  conform  to  the  law.  (Adams  •?;.  U.  S . , 
42  Ct.  Cls.,  191).  It  will  not  be  pretended  that 
department  regulations  can  control  or  annul 
an  act  of  Congress,  and  when  it  is  said  they  have 
the  force  of  law  nothing  more  is  meant  than 
that  they  have  that  virtue  when  they  are  con- 
sistent with  the  laws  established  by  the  legis- 
lature. (U.  S.  V.  Webster,  28  Fed.  Cas.,  515, 
516.) 

Must  be  limited  as  to  persons  and  sub- 
ject matter. — While  in  general  terms  it  is 
often  said  that  the  Army  and  Navy  Regula- 
tions have  the  force  and  effect  of  law,  this  can 
only  be  proijeiiy  so  where  we  are  dealing  with  a 
person  or  subject  matter  over  which  the  Secre- 
tary has  official  control.  (16  Op.  Atty.  Gen., 
494.)  But  where  the  Secretary  of  the  Navyhas 
control  of  the  subject  matter,  a  lawful  regula- 
tion issued  by  him  is  binding  on  the  account- 
ing officers  of  the  Treasury,  and  will  protect 
disbursing  officers  from  responsibility  for  com- 
pliance therewith,  (30  Op.  Atty.  Gen.,  376, 
l71  S.  and  A.  Memo.,  3611.  See  also  file 
26254-1451:11,  Apr.  12,  1915.)  Army  regula- 
tions, issued  pursuant  to  the  explicit  pro- 
visions of  a  statute  and  in  execution  thereof, 
when  sanctioned  by  the  President,  have  the 
force  of  law,  and  are  conclusive  upon  the  ac- 
counting officers  of  the  Treasury;  accord- 
ingly, when  an  officer  presents  with  his  account 
an  authentic  document  or  certificate  of  his  hav- 
ing commanded  a  post  or  arsenal  for  which  an 
order  has  been  issued  from  the  War  Department 
in  conformity  with  the  provisions  of  the  Army 
Regulations  allowing  double  rations,  his  right 
to  them  is  estabhshed,  nor  can  they  be  withheld 
without  doing  him  a  wrong  for  which  the  law 
giveshim  a  remedy.  (U.  S.  v.  Freeman,  3  How., 
567.) 

Are  not  the  law  itself. — Regulations  pro- 
mulgated under  section  161,  Revised  Statutes, 
have  the  force  of  law,  but  they  are  not  the  law 
itself.  (Laureyv.  U.S.,32Ct.Cls.,265.)  Regu- 
lations prescribed  by  the  President  and  heads  of 
departments  under  authority  granted  by  Con- 
gress may  be  regulations  prescribed  by  law  so  as 
to  lawfully  support  acts  done  under  them  and 
in  accordance  with  them,  and  may  thus  have,  in 
a  proper  sense,  the  force  of  law;  but  it  does  not 
follow  that  a  thing  required  by  them  is  a  thing 
so  required  by  law  as  to  make  the  neglect  to 
do  the  thing  a  criminal  offense  in  a  citizen 
where  a  statute  does  not  distinctly  make  the 
neglect  in  question  a  criminal  offense.  Ac- 
cordingly, held  that  a  provision  in  an  act  of 
Congress  authorizing  the  Commissioner  of 
Internal  Revenue,  with  the  approval  of  the 
Secretary  of  the  Treasury,  to  make  all  needful 
regulations  for  the  can-ying  into  effect  of  the 
act  authorized  a  regulation  requiring  dealers 
to  keep  certain  books;  but  violation  of  said 
regulation  was  not  omitting  or  failing  to  do  a 
thing  "required  by  law  for  the  carrying  on  or 
conducting  of  his  business  "  mthin  the  meaning 
of  another  section  of  the  same  act  affixing  a 


197 


Sec.  161. 


PL  2.  REVISED  STATUTES.        Executive  Departments. 


l)i'nalty.  [In  tliis  case  the  language  of  the  law 
wivs  held  not  to  intend  to  allix  a  i)('naUy  for  the 
failure  to  keep  the  books  in  question.]  U.  S.  v. 
Eaton,  144  U.  !S.,  677;  explained  and  distin- 
guished in  Caha  v.  U.  S.,  152  U.  S.,  211,  and  In  re 
Kollock,  1(;5  U.  S.,  520;  see  also  U.  S.  v.  Butter, 
li>5  Fed.  Rep.,  657;  U.  S.  v.  Maid,  116 Fed.  Rep., 
650;  compare  Coopersville  Cooperative  Cream- 
ery Co.  V.  Lemon,  163  Fed.  Rep.,  145;  21  Op. 
Atty.  Gen.,  440.  (See  below,  "VII.  Limita- 
tions Upon  Powekto  Make  Regulations.") 

Regulations  made  by  the  head  of  a  depart- 
ment piu-suant  to  statutory  authority  and  in 
administration  thereof,  not  being  demanded  by 
law,  are  not  law  in  the  sense  in  which  that  term 
\3  used  in  section  356,  Revised  Statutes.  (25 
Op.  Atty.  Gen.,  183.) 

A  departmental  regulation  relating  to  internal 
administration  and  practice,  when  not  specially 
authorized  or  demanded  by  law,  is  not  law  in 
the  sense  in  which  that  term  is  used  in  section 
356,  Revised  Statutes.    (18  Op.  Atty.  Gen.,  521.) 

Violation  of  a  regulation  may  be  made 
criminal  offense  by  statute. —  Congress  may 
enact  that  the  violation  of  certain  rules  and 
regulations  of  the  Secretary,  not  inconsistent 
with  law,  which  it  authorized  him  to  make, 
should  subject  property  to  forfeiture  or  persons 
to  fine  and  imprisonment;  but  such  penalties 
can  not  be  inflicted  for  violation  of  a  regulation 
of  an  executive  department  without  previous 
legislative  sanction.  (U.  S.  v.  Butter,  195  Fed. 
Rep.,  657;  see  also  McKirleyt).  U.  S.,  249  U.S., 
397;  Buttfield  v.  Stranahan,  192  U.  S.,  470; 
Union  Bridge  Co.  v.  U.  S.,  204  U.  S.,  364;  U.  S. 
V.  Grimaud,  220  U.  S.,  506;  U.  S.  v.  Breen,  40 
Fed.  Rep.,  403;  U.  S.  v.  Ormsbee,  74  Fed.  Rep., 
208.)  Congress  has  provided  that  violation  of 
any  lawful  general  order  or  regulation  issued  by 
the  Secretary  of  the  Navy  shall  be  punishable 
by  court-martial  when  the  offender  is  a  person 
in  the  naval  service.  (Sec.  1624,  R.  S.,  art.  8, 
clause  20;  see  also  U.  S.  v.  Moody,  164  Fed. 
Rep.,  269.) 

Where  a  statute  made  it  a  crime  to  bribe  an 
officer  of  the  United  States  to  violate  his  "lawful 
duty,"  the  Supreme  Court  held  that  bribery  of 
an  officer  to  violate  a  department  regulation 
was  punishable  under  the  statute.  (Haas  v. 
Henkel,  216  U.  S.,  462.)  Where  the  law  made 
it  the  duty  of  the  Secretary  of  the  Treasury 
to  adjust  certain  claims,  but  did  not  prescribe 
the  manner  in  which  he  should  obtain  the 
necessary  evidence  prior  to  making  payments, 
it  was  held  by  the  Supreme  Court,  per  Mr. 
Justice  Story,  that  it  devolved  upon  the  Secre- 
tary by  regulations  to  prescribe  what  evidence 
should  be  furnished  in  support  of  claims;  that 
a  regulation  made  by  the  Secretary  requiring 
the  submission  of  affidavits  and  authorizing 
such  affidavits  to  be  made  before  an  officer  who 
was  not  expressly  authorized  by  any  law  of  the 
United  States  to  administer  an  oath  in  support 
of  claims  was  a  valid  regulation;  and  that  any 
person  making  a  false  aiiidavit  in  accordance 
with  such  a  regulation  was  guilty  of  false 
swearing  and  punishable  as  for  willful  and  cor- 
rupt perjury  under  an  act  of  Congress  then  in 
effect.  (U.  S.  V.  Bailey,  9  Pet.,  2.38;  see  also 
14  Op.  Atty.  Gen.,  420;  and  see  29  Op.  Atty. 
Gen.,  14,  and  file  26543-87 :2  Apr.  28,  1913,  as  to 
affidavits  required  in  Navy  cases.) 


Not  punishable  if  regulation  invalid. — In 
a  case  in  which  the  Secretary  of  the  Interior 
by  regulation  required  an  affidavit  to  be  sub- 
mitted by  a  homestead  claimant,  it  was  held 
by  the  Supreme  Court  that  submitting  a  false 
affidavit  under  such  regulation  was  not  perjury 
within  the  statute  which  dealt  with  "any  case 
in  which  a  law  of  the  United  States  authorizes 
an  oath  to  be  administered."  In  its  opinion, 
the  court  remarked:  "Where  the  charge  is  of 
crime,  it  must  have  clear  legislative  basis," 
citing  WilUamson  v.  U.  S.,  207  U.  S.,  425;  U.  S.  v. 
Keitel,  211  U.  S.,  370;  U.  S.  v.  Eaton,  144  U.  S., 
677;  MorrUl  v.  Jones,  106  U.  S.,  466;  U.  S.  v. 
Biggs,  211  U.S. ,507;andDwyeri;.  U.S. ,170  Fed. 
Rep.,  160.  However,  in  this  case  it  appeared 
that  the  law  itself  provided  what  evidence  and 
affidavits  should  be  required  of  homestead 
claimants,  and  that  the  regulation  of  the  Inte- 
rior Department  added  to  the  statutory  require- 
ment; and  tlie  court  held  that  this  was  not  an 
exercise  of  administrative  power,  as  contem- 
plated by  Congress  in  authorizing  regulations 
to  be  made,  but  was  an  attempted  exercise  of 
legislative  powers,  as  the  authority  to  make 
regulations  did  not  authorize  the  Secretary 
either  to  abridge  or  enlarge  the  statute.  (U.S. 
V.  George,  228  U.  S.,  14.) 

Regulation  may  operate  as  contract. — 
A  regidation  which  has  not  the  force  of  law, 
may  nevertheless,  if  not  inconsistent  wnth  law, 
operate  as  a  contract  between  the  Government 
and  those  who  work  under  it,  and  thereby 
acquire  full  force  and  effect,  (Adams  t^.  U.S., 
42  Ct.  Cls.,  191;  13  Comp.  Dec,  819;  5  Comp. 
Dec,  666.) 

The  Secretary  of  the  Navy  is  authorized 
by  this  section  to  issue  regulations  prescribing 
the  duties  of  pay  officers,  and  requiring  theni  to 
make  payments  upon  certain  contingencies. 
Such  regulations  must  be  read  as  applying  only 
to  items  fair  on  their  face.  In  such  case  an 
officer  refusing  to  pay  would  both  breach  his 
bond  and  render  himself  liable  to  court-martial, 
while  an  officer  obeying  the  regulation  can  not 
be  held  responsible,  eitner  financially  or  crimi- 
nally. The  regulation  in  such  case  has  bind- 
ing force  of  law  on  the  accounting  officers  of  the 
Government.  (30  Op.  Atty.  Gen.,  376,  171  S. 
and  A.  Memo.,  3611,  reversing  21  Comp.  Dec, 
554,  357,  245.) 

VII.    Limitations  Upon  Power  to  Make 
Regulations. 

Must  be  consistent  with  law. — Section 
161,  Revised  Statutes,  specifically  provides 
that  regulations  made  thereunder  shall  be 
"not  inconsistent  with  law.'.' 

Must  not  usurp  power  of  Congress. — 
Where  a  regulation  issued  by  the  head  of  a  de- 
partment amounts  to  an  attempted  exercise  of 
the  power  of  legislation,  it  is  invalid  (U.  S.  v. 
United  Verde  Copper  Co.,  196  U.  S.,  207;  U.  S. 
V.  George,  228  U.  S.,  14;  25  Op.  Atty.  Gen.,  249). 
The  head  of  a  department  can  not  by  his  regu- 
lations alter  or  amend  a  statute;  all  that  he 
can  do  is  to  regulate  the  mode  of  proceeding 
to  carry  into  effect  what  Congress  has  enacted. 
(Morrill  v.  Jones,  106  U.  S.,  466;  see  also  U.  S. 
V.  Symonds,  120  U.  S.,  46,  49;  U.  S.  v.  Bishop, 
120  U.  S.,51;  Campbell  v.  U.  S.,  107  U.  S.,407; 


198 


Executive  Departments.        PL  2.  REVISED  STATUTES. 


Sec.  161. 


U.  S.  V.  Garlinger,  169  U.  S.,  316;  Merritt  v. 
Welsh,  104  U.  S.,  694.)  Rights,  duties,  and  ob- 
ligations defined  by  statute  can  not  be  taken 
away  or  abridged  bv  regulations.  (Laurey  v.  U. 
S.,  32  Ct.  Cls.,  259") 

Must  not  be  retroactive. — A  regulation 
manifestly  can  not  have  a  retroactive  effect  so 
as  to  invalidate  a  claim  for  services  performed 
before  it  was  in  existence.  (U.  S.  v.  Da\ds, 
132  U.  S.,  334;  Taylor  v.V.  S.,  33  Ct.  Cls.,  393; 
see  also  17.  S.  v.  Macdaniel,  7  Pet.  1,  15;  Camp- 
bell V.  U.  S.,  107  U.  S.,  407;  U.  S.  v.  Ala.  R. 
Co.,  142  U.  S.,621.) 

Can  not  prescribe  a  criminal  offense. — A 
departmental  regulation  can  not  prescribe  a 
criminal  offense.  (U.  S.  v.  Eaton,  144  U.  S.,  677; 
U.  S.  -y.  George,  228  U.  S.,  14;  U.  S.  v.  Butter, 
195  Fed.  Rep.,  657.  But  see  U.  S.  v.  Bailey, 
9  Pet.,  238;  Haas  v.  Henkel,  216  U.  S.,462.) 
See  above,  "VI  Weight  of  Regulations." 

Limitation  as  to  persons. — The  law  does 
not  authorize  the  head  of  a  department  to  dic- 
tate to  a  civil  employee  where  he  shall  live  (9 
Op.  Atty.  Gen.,  23);  nor  can  he  make  regula- 
tions for  the  conduct  of  persons  not  connected 
with  his  department  (17  Op.  Attv.  Gen.,  524; 
16  Op.  Atty.  Gen.,  494;  16  Comp.  Dec,  529;  18 
Comp.  Dec,  992;  but  see  U.  S.  v.  Freeman,  3 
How.,  567;  Op.  Atty.  Gen.,  May  19,  1915,  171 
S.  and  A.  Memo.,  3611;  however,  persons  deal- 
ing with  agents  of  the  government  are  bound  to 
take  notice  of  the  extent  of  the  authority  con- 
ferred by  law  and  regulation  upon  such  agents 
(Whiteside  et  al  v.  tl.  S.,  93  U.  S.,  247;  Noble 
V.  U.  S.,  11  Ct.  Cls.,  608;  Lind  v.  U.  S.,  49  Ct. 
Cls.,  648). 

Can  not  change  terms  of  statute. — A 
regulation  can  not  enlarge  the  terms  of  a  statute 
by  requiring  a  public  officer  to  furnish  a  bond 
with  a  condition  different  from  that  which  the 
statute  called  for  (U.  S.  v.  Tingey,  5  Pet.,  115; 
Moses  V.  U.  S.,  166  U.  S.,  571);  nor  by  requiring 
a  homestead  claimant  to  furnish  affidavits  ad- 
ditional to  those  required  by  statute  (U.  S.  v. 
Eaton,_  144  U.  S.,  677);  but  where  a  statute 
authorized  publishers  to  send  sample  copies 
through  the  mails  at  a  reduced  rate  of  postage, 
without  limiting  the  number  of  sample  copies 
so  sent,  a  regulation  issued  by  the  Postmaster 
General  prescribing  the  maximum  number  of 
sample  copies  to  be  so  transported  at  reduced 
rate  was  valid.  (Lewis  Publishing  Co.  v. 
Wyman,  182  Fed.  Rep.,  13.)  A  regulation  can 
not  enlarge  or  restrict  the  liability  of  an  officer 
on  his  bond  (Meads  v.  U.  S.,  81  Fed.  Rep., 
684;  Smith  v.  U.  S.,  170  U.  S.,  372).  A  regu- 
lation may  supplement  a  statute,  but  can  not 
supersede  it.  (Roberts  v.  U.  S.,  44  Ct.  Cls.,  411; 
15  Comp.  Dec,  658.) 

The  authority  to  make  rules  and  regulations 
is  to  make  such  administrative  regulations  as 
are  necessary  to  carry  out  the  existing  law. 
The  right  is  not  given  to  amend  or  enlarge  the 
law.  (28  Op.  Attv.  Gen.,  389;  see  also  notes  to 
sees.  436  and  1409,  R.  S.) 

Private  debts. — In  the  absence  of  statute, 
no  public  officer  can  make  the  United  States 
an  agent  or  trustee  for  the  collection  of  private 
debts  between  citizens.  (Taggart's  case,  17  Ct. 
Cls.,  322,  compare  file  26254-1709.) 


VIII.  Rules  for  Testing  Validity  op  Regu- 
lations. 

Validity  sustained  if  possible. — In  deter- 
mining whether  a  regulation  promulgated  by 
the  head  of  a  department  is  consistent  with  law, 
we  must  apply  the  rule  of  decision  which  con- 
trols when  an  act  of  Congress  is  assailed  as  not 
being  within  the  powers  conferred  upon  it  by 
the  Constitution;  that  is  to  say,  a  regulation 
adopted  under  section  161  of  the  Revised  Stat- 
utes should  not  be  disregarded  or  annulled 
unless,  in  the  judgment  of  the  court,  it  is  plainly 
and  palpably  inconsistent  with  law.  Those 
who  insist  that  such  a  regulation  is  invalid 
must  make  its  invalidity  so  manifest  that  the 
court  has  no  choice  except  to  hold  that  the 
Secretary  has  exceeded  his  authority  and 
employed  means  that  are  not  at  aU  appropriate 
to  the  end  specified  in  the  act  of  Congress. 
(Boske  V.  Comingore,  177  U.  S.,  459;  29  Op.  Atty. 
Gen.,  478.)  A  regulation  must  be  interpreted, 
if  possible,  to  harmonize  with  the  law.  (Rob- 
erts V.  U.  S.,  44  Ct.  Cls.,  411.) 

Valid  unless  clearly  contrary  to  stat- 
ute.— In  determining  whether  a  regulation 
issued  by  the  Secretary  of  the  Navy  is  valid, 
the  only  proper  inquiry  is  whether  and  how  far 
a  rule  has  been  laid  down  by  the  statute  which 
restrains  the  disposition  of  the  subject  by 
executive  order  or  department  regulation  and 
usage.  Unless  the  laws  on  the  subject  posi- 
tively require  a  different  action,  or  altogether 
prohibit  that  taken,  the  questions  are  subject 
to  administrative  settlement  by  the  Secretary 
of  the  Navy.  In  other  words,  the  law  pre- 
scribes certain  rules  on  the  subject;  beyond 
these  rules,  executive  order,  regulation  or  usage 
have  full  scope  and  play.  (25  Op.  Atty.  Gen., 
122.) 

Valid  when  approved  by  Congress. — A 
regulation  directly  approved  by  Congress  has 
the  absolute  force  of  law.  (In  re  Smith,  23 
Ct.  Cls.,  459;  file  26254-1451:11,  Apr.  12,  1915, 
citing  Ex  parte  Reed,  100  U.  S.  22;  Smith  v. 
Whitney,  116  U.  S.,  180,  181;  see  also  Op. 
Atty.  Gen.,  May  19, 1915, 171  S.  and  A.  Memo., 
3611.) 

Ratification  of  Congress  implied. — ^\Tien 
Congress  allows  a  regulation  to  be  formulated 
and  published  and  carried  into  effect  year  after 
year,  the  legislative  ratification  must  be  im- 
plied, and  it  does  not  comport  with  national 
honor  to  allow  such  a  regulation  of  an  executive 
department  to  exist  and  individuals  to  acquire 
rights  upon  the  faith  thereof,  and  then  to  with- 
hold payment  and  question  the  legality  of  the 
regulation.  (Maddux  v.  U.  S.,  20  Ct.  Cls.,  193.) 
Congress  has  not  hesitated  to  annul  Navy  regu- 
lations of  which  it  did  not  approve,  as,  for  exam- 
ple, Executive  order  of  November  12,  1908 
(file  27109),  limiting  the  duty  of  the  Marine 
Corps  to  shore  stations.  (Act  Mar.  3,  1909,  35 
Stat.,_  773;  27  Op.  Atty.  Gen.,  259.)  Hence, 
inaction  by  Congress  is  equivalent  to  legis- 
lative sanction  of  regulations,  and  should  be 
so  regarded  in  testing  the  validity  of  a  regu- 
lation or  construing  a  statute  on  the  same 
subject.  (Maddux  v.  U.  S.,  above;  Benja- 
min V.  U.  S.,  10  Ct.  Cls.,  482;  file  5262-36 
May  5,    1910;   15  Op.   Atty.  Gen.,    646,647; 


199 


Sec.  161. 


Pt.  2.  REVISED  STATUTES.        Executive  Departments. 


see  also  22  Op.  Atty.  Gen.,  626;  19  Op.  Atty. 
Gen.,  591;  file  7657-167,  Jan.  17,  1913;  7657- 
389,  Sept.  25,  1916.)  Otherwise,  however, 
where  there  is  a  direct  conflict  between  the 
regulation  and  a  statute.  (20  Comp.  Dec, 
741.) 

Where  regulations  have  been  in  force  for  a 
number  of  years  and  have  received  the  tacit 
if  not  express  approval  of  Congress,  the  court 
does  not  leel  at  liberty  to  disregard  them  and 
hold  that  they  are  not  authorized  by  law,  even 
though  it  "may  well  be  doubted"  that  they 
are  authorized  by  law.  (Garlinger  v.  U.  S.,  30 
Ct.  Cls.  477.) 

IX.  Waiver  of  Regulations. 

Regulations  not  binding  on  head  of  de- 
partment.— The  Supreme  Coiut  has  held  that 
an  Army  regulation  which  in  terms  applies 
only  to  persons  in  the  military  service  does  not 
bind  the  Secretary  of  War,  as  he  "is  not  in  the 
military  service  in  the  sense  of  the  regulation, 
but  on  the  contrary  is  a  civil  officer"  (U.  S.  v. 
Burns,  12  Wall.,  246);  and  the  Court  of  Claims, 
citing  this  case,  held  that  Army  Regulations, 
"which  are  intended  for  the  direction  and  gov- 
ernment of  the  officers  and  agents  of  the  depart- 
ment, do  not  bind  the  Commander  in  Chief  nor 
the  head  of  the  War  Department"  (Smith  v. 
U.  S.,  24  Ct.  Cls.,  215). 

May  be  waived  by  power  which,  made 
them. — The  above  decision  of  the  Court  of 
Claims  was  cited  by  the  Comptroller  of  the 
Treasury  (9  Comp.  Dec,  280)  in  holding  that  a 
provision  of  the  Army  Regulations  which  was 
adopted  pursuant  to  and  in  execution  of  a  stat- 
ute was  one  "  of  ordinary  departmental  regu- 
lations, made  to  administer  the  annual  appro- 
priations by  the  heads  of  departments,"  and 
was  binding  upon  the  subordinates  of  the  Secre- 
tary of  War  so  long  as  he  did  not  abrogate  or 
waive  it;  but  that  "you  [Secretary  of  War]  are 
at  hberty  in  my  judgment  to  change,  modify, 
or  waive  it  at  your  pleasure,  always  provided 
that  you  do  not  violate  some  law  in  your  changed 
or  modified  regulation,  or  by  such  change, 
modification,  or  waiver  you  do  not  encroach 
upon  or  abrogate  some  contractual  right  fully 
vested  before  notice  of  such  change,  modifica- 
tion, or  waiver. "  (See  also  2  Comp.  Dec,  306; 
3  Comp.  Dec,  218;  4  Comp.  Dec,  40,  266,  387; 
6  Comp.  Dec,  589.) 

In  a  decision  of  the  Comptroller  of  the  Treas- 
ury, July  22,  1899,  it  was  said:  "It  has  been 
held  time  out  of  mind  in  this  oflice  *  *  *  by  such 
able  lawyers  and  officers  as  Whittlesey,  Tayler, 
and  Lawrence,  not  mentioning  its  later  incum- 
bents, that  the  authority  making  a  regulation 
could  waive  its  enforcement,  and  that  any 
aflirmative  act  by  such  power  contrary  to  the 
provisions  of  such  regulation  would  be  treated 
as  a  waiver.  "     (6  Comp.  Dec,  GO.) 

WTiere  the  Secretary  of  the  Navy  suspended 
the  operation  of  a  regulation  in  a  particular 
case,  the  Comptroller  of  the  Treasury,  January 
8,  1900  (6  Comp.  Dec,  589),  held  that  the  regu- 
lation "  was  waived  by  the  power  which  made 
these  regulations,"  and  continued:  "I  know  of 
no  law  or  rule  which  forbids  the  head  of  a  de- 
partment from  suspending  the  operation  of  a 


regulation  similar  to  this  in  individual  in- 
stances. The  effect  of  such  suspension  is  to 
cause  a  want  of  uniformity  in  the  operation  of 
these  regulations,  but  if  this  be  a  fault  it  is 
chargeable  to  the  administration  of  the  regula- 
tions and  does  not  imply  the  want  of  power  to 
so  suspend  the  operation  of  a  regulation  in  indi- 
vidual cases." 

"  Where  a  rule  or  regulation  is  not  the  essence 
of  a  law,  but  is  simply  a  vehicle  for  its  proper 
administration,  the  authority  making  such  rule 
or  regulation  may  waive  its  performance  or  non- 
performance."    (4  Comp.  Dec,  387.) 

Regulations  issued  by  the  head  of  a  depart- 
ment pursuant  to  statutory  authority  and  in 
administration  thereof  can  be  made  or  annulled 
at  will  and  enforced  or  waived  as  seems  ex- 
pedient.    (25  Op.  Atty.  Gen.,  183.) 

A  departmental  regulation  relating  to  internal 
administration  and  practice,  when  not  specially 
authorized  or  demanded  by  law,  is  such  as  the 
officers  of  bureaus  and  departments  can  make 
or  annul  at  will  or  enforce  or  waive  as  seems 
expedient.     (18  Op.  Atty.  Gen.,  521.) 

View  that  regulations  can  not  be 
waived. — In  a  decision  of  the  Comptroller  of 
the  Treasury,  above-cited  (9  Comp.  Dec,  280), 
there  was  quoted  an  opinion  of  the  Judge  Ad- 
vocate General  of  the  Army  showing  that  his 
office  had  "  uniformly  and  consistently  held  to 
the  view  that  Army  Regulations  made  in  pur- 
suance of  a  statute,  although  subject  to  modifi- 
cation by  the  Secretary  of  War,  are  not  subject 
to  exceptions  or  waiver  in  individual  cases  by 
the  same  authority."  The  Comptroller  did 
not  concur  in  the  Judge  Advocate  General's 
opinion  in  that  case.  However,  in  21  Comp. 
Dec,  482,  it  was  held  that  relations  "made 
pursuant  to  or  in  execution  of  a  statute,  are 
quasi-legislative,  and  may  be  held  to  become  a 
part  of  the  law  and  to  be  of  the  same  force  as 
the  statute  itself,  and  though  they  may  be 
changed  by  the  authority  making  them  they 
are  binding  on  such  authority  as  well  as  others 
so  long  as  they  are  not  changed  and  exceptions 
can  not  be  granted  to  them.  The  power  to 
make  regulations  involves  the  power  to  alter, 
amend,  modify,  or  revoke  the  same,  but  said 
action  must  be  general  and  not  by  specific  ex- 
ception or  waiver,  and  can  only  be  prospective, 
not  retrospective.  The  distinction  should  be 
made  between  essential  regulations  made  in  aid 
of  a  statute,  such  as  are  necessary  to  the  execu- 
tion of  the  statute,  and  thus  have  the  appear- 
ance of  being  of  a  decidedly  legislative  char- 
acter and  regulations  which  are  merely  sup- 
plemental to  them  and  relate  to  the  minor 
details  of  the  machinery  for  the  execution  of 
the  statute.  These  latter  are  made  in  aid  of 
the  statute  also,  but  are  not  of  the  character 
referred  to  and  may  more  properly  be  termed 
administrative  and  directory.  The  line  of  de- 
marcation may  not  be  easily  defined  but  there 
is  a  clear  distinction  between  the  two  classes 
of  regulation."  (See  also  Op.  Atty.  Gen.  to 
Sec.  of  Navy,  July  19,  1918;  file  26254-2476:5.) 

Upon  the  question  whether  a  provision  in  the 
Navy  Regulations  of  1909  could  be  waived  in  an 
individual  case,  the  Judge  Advocate  General  of 
the  Navy,  January  22,  1913  (file  54G0-60),  re- 
marked that  said  regulation  was  substantially 


200 


Executive  Departments.        Pt.2.  REVISED  STATUTES. 


Sec.  162. 


identical  with  a  provision  contained  in  the 
Navy  Regulations  which  received  the  express 
sanction  of  Congress  in  the  enactment  of  section 
1547,  Revised  Statutes  (citing  Atty.  Gen.'s 
opinion  of  Oct.  27,  1909,  file  3890-530);  that 
' '  there  are  authorities  both  ways  upon  the  cjues- 
tion  whether  a  regulation  such  as  the  foregoing 
may  be  waived  in  individual  cases.  The  spe- 
cific question  has  never  been  decided  by  the 
Supreme  Court  of  the  United  States";  and  for 
these  and  other  reasons,  recommended  that  the 
regulation  in  ciuestion  be  not  waived. 

A  regulation  which  has  been  specifically  ap- 
proved and  adopted  by  Congress,  and  has  thus 
been  placed  on  the  footing  of  legislative  enact- 
ments, can  be  altered  only  oy  Congress  and  can 
not  be  waived  by  the  Secretary  of  the  Navy  or 
the  President.  (13  Op.  Atty."  Gen.,  10;  in  re 
Smith,  23  Ct.  Cls.,  452;  IMaddux  v.  U.  S.,  20 
Ct.  Cls.,  193;  file  26509-106.) 

The  waiver  of  a  regulation,  the  same  as  the 
revocation  or  amendment  thereof,  can  not,  how- 
ever, be  given  a  retroactive  effect  so  as  to  dis- 
turb vested  rights.  (U.  S.  v.  Mardaniel,  7 
Pet.,  1,  15;  Campbell  v.  U.  S.,  107  U.  S.,  407.) 

Necessity  of  President's  authority  to 
waive. — The  ('omptroller  of  the  Treasury  has 
announced  the  principle  that  regulations  pro- 
mulgated by  the  President  may  be  waived  by 
the  head  of  a  department;  for  the  heads  of  the 
several  departments  "are  the  eyes  and  hands 
of  the  President,  to  execute  the  laws  and  his 
executive  rules  and  regulations;  their  acts  are 
in  a  sense  his  acts;  when  they  waive  a  regu- 
lation, he  waives  it;  for  they  act  for  and  repre- 
sent the  power  and  authority  of  the  President." 
(6  Comp.  Dec,  60.) 

In  the  case  of  Navy  Regulations  issued  under 
section  1547,  Revised  Statutes,  it  has  been  held 
that  if  they  may  be  waived  in  any  case,  express 
authority  of  the  President  for  such  waiver  is 
necessary,  for  the  principle  is  recognized  in  the 
decisions  that  regulations  can  be  waived  only 
by  the  authority  which  made  them,  and  the 
President  and  the  Secretary  of  the  Navy  both 
act  in  issuing  regulations  under  section  1547, 


Revised  Statutes.  (File 5460-60.)  [In6Gomp. 
Dec.  589,  it  was  held  that  a  regulation  issued 
under  section  1547,  Revised  Statutes,  might  be 
waived  by  the  Secretary  of  the  Navy,  who  was 
"the  power  which  made  these  regulations." 
At  the  time  said  decision  was  rendered,  this 
statement  of  the  Comptroller  was  literally  true, 
as  the  regulations  in  question  were  not  expressly 
approved  by  the  President.  Section  1547  was 
afterwards  construed  by  the  Attorney  General 
(25  Op.  Atty.  Gen.,  270)  to  require  the  express 
appro\-al  of  the  President,  both  for  the  issuing 
of  regulations  thereunder,  and  the  making  of 
changes  and  alterations  therein,  which  opinion 
has  ever  since  been  followed  in  practice, 
although  it  was  later  held  by  the  Court  of 
Claims  that  regulations  issued  by  the  Secretary 
of  the  Navy  under  section  1547,  Revised  Stat- 
utes, are  presumed  to  have  been  issued  with 
the  approval  of  the  President,  though  they  do 
not  bear  his  signature  (Adams  v.  U.  S.,  42  Ct. 
Cls.,  211;  file  3980-1044,  Mar.  19,  1915.)] 

Evidence  of  waiver. — Usually  an  approval 
of  an  act  by  the  head  of  a  department,  where  a 
rule  or  regulation  has  not  been  complied  with, 
is  sufficient  evidence  of  its  waiver.  (4  Comp. 
Dec,  387;  6  Comp.  Dec,  60.) 

In  Arthur  i;.  U.  S.,  16  Ct.  Cls.,  433,  the  Court 
of  Claims  held  that  the  Army  Regulations  were 
obligatory  \ipon  the  Surgeon  General  of  the 
Army;  and  where  that  officer,  with  the  acqui- 
escence of  the  Secretary  of  War  and  of  the  ac- 
counting officers,  repeatedly  disregarded  such 
regulations  in  practice  during  a  period  of  many 
years,  this  did  not  constitute  a  legal  custom  and 
operate  to  annul  the  regulations  in  question. 
In  this  case,  however,  the  court  stated  that  it 
was  unnecessary  to  decide  whether  the  Secre- 
tary of  War's  approval  of  contracts  varying 
^'om  the  regulations  had  the  effect  of  suspend- 
ing their  operation  in  the  individual  cases. 

Policy  of  Navy  Department.— On  May  5, 
1909,  the  Secretary  of  the  Navy  (Meyer)  an- 
nounced that  "The  department  is  averse  to 
waiving  the  provisions  of  the  regulations  except 
in  cases  of  great  necessity".     (File  17789-10.) 


Sec.  162.  [Hours  of  business.]  From  the  first  day  of  October  until  ttie 
first  day  of  April,  in  each  year,  all  the  Bureaus  and  offices  in  the  State,  War, 
Treasury,  Navy,  and  Post-Office  Departments,  and  in  the  General  Land-Office, 
shall  be  open  for  the  transaction  of  the  public  business  at  least  eight  hours  in 
each  day;  and  from  the  first  day  of  April  until  the  first  day  of  October,  in  each 
year,  at  least  ten  hours  in  each  day;  except  Sundays  and  days  declared  public 
holidays  by  law.— (4  July,  1836,  c.  352,  s.  12,  y.  5,  p.  112;  20  June,  1874,  c. 
328,  V.  18,  'p.  109.) 


Closing  the  departments  for  deceased  ex-officials 
is  prohibited  by  act  of  March  3, 1893,  section 
4  (27  Stat.,  715).  Draping  of  biulding  in 
mourning  is  prohibited  by  the  same  act, 
sections  (27  Stat.,  715). 

The  public  buildings  are  to  be  kept  open  dur- 
ing stated  hom-s  for  the  transaction  of  pub- 
lic business.     (Palmer's  case,  17  Ct.  Cls., 
230,  234;  argument  for  United  States.) 
"Days     declared     public     holidays     by 

law." — The  following  days  in  each  year  are 

holidays  in  the  District  of  Colimibia  "for  all 


purposes,"  viz.,  the  first  day  of  January,  com- 
monly called  New  Year's  Day;  the  twenty- 
second  day  of  February,  known  as  Washing- 
ton's Birthday;  the  Fourth  of  July;  the  thir- 
tieth day  of  May,  commonly  called  Decoration 
Day;  the  first  Monday  in  September,  known  as 
Labor's  Holiday;  the  twenty-fifth  clay  of  De- 
cember, commonly  called  Christmas  Day; 
every  Saturday  after  twelve  o'clock  noon ;  any 
day  appointed  or  recommended  by  the  Presi- 
dent of  the  United  States  as  a  day  of  public 
fasting  or  thanksgiving;  and  the  day  of  the 


201 


Sec.  164. 


Ft.  2.  REVISED  STATUTES.        Executive  Departments. 


inauguration  of  the  rresiclent,  in  every  fourth 
year.  (District  of  Cohimbia  Code,  act  Mar.  3, 
IWl,  sec.  1389,  31  Stat.,  1404;  amended  by  act 
June  30,  1902,  32  Stat.,  543.) 

Every  Saturday  after  12  o'clock  noon  in  the 
District  of  Oohimlna  is  one  of  the  days  declared 
})ublic  holidays  by  law.  Consequently,  heads 
of  departments  are  not  obliged  to  require  labor 
of  employees  after  the  hour  of  noon  on  Satur- 
days. (25  Op.  Atty.  Gen.,  40j  see  also  Adams 
V.  U.  S.,  42  Ct.  Cis.",  191.) 

The  "hours  of  business"  as  fixed  by  this 
section  were,  by  act  of  June  20,  1874  (18  Stat., 
109),  also  made  the  maximum  hours  of  labor 
which  could  be  required  of  employees  in  the 
de])artmeuts.    The  act  cited  read  as  follows: 

"That  it  shall  be  the  duty  of  heads  of  the 
several  executi%-e  departments,  and  of  the 
heads  of  the  respective  bureaus  therein,  in  the 
interests  of  the  public  service,  to  require  of  all 
clerks  of  class  one  and  above,  and  of  chiefs  of 
divisions,  such  hours  of  labor  as  may  be  deemed 
necessary  for  the  proper  dispatch  of  the  public 
business,  not  exceeding,  however,  the  time  for 
which  said  departments  are  by  law  required 
to  be  open  for  business,  any  usage  to  the  con- 


trary notwithstanding."  (See  25  Op.  Atty. 
Gen.,  40.) 

The  "hours  of  labor"  of  employees  in  the 
de])artmeuts  are  now  fixed  at  not  less  than 
seven,  "except  Sundays  and  days  declared 
public  holidays  by  law  or  Executive  order,"  by 
act  of  March  3,  1893  (27  Stat.,  715),  as  amended 
by  act  of  March  15,  1898,  section  7  (30  Stat., 
316).  See  22  Op.  Atty.  Gen.,  472,  474,  as  to 
pay  of  employees  "during  the  temporary  sus- 
pension of  actual  work  in  the  departments  in 
obedience  to  an  Executive  order."  See  also 
22Comp.  Dec,  425. 

Hours  of  labor  for  Government  laborers, 
workmen,  and  mechanics  are  fixed  at  eight  by 
section  3738,  Revised  Statutes,  and  act  of  Au- 
gust 1,  1892  (^27  Stat.,  340),  and  amendments 
thereto.. 

Heads  of  departments  are  required  to  extend 
hours  of  labor  in  certain  cases,  when  public 
business  is  in  arrears.  (Act  Mar.  3,  1893,  27 
Stat.,  715,  as  amended  by  act  Mar.  15, 1898,  30 
Stat.,  317). 

By  Naval  Instructions  (art.  82)  the  usual 
hours  of  labor  for  clerks  in  the  Navy  Depart- 
ment are  fixed  at  from  9  a.  m.  to  4.30  p.  m. 


Sec.  163.  [Classification  of  Department  clerks.]  Tlie  clerks  in  the  Depart- 
ments shall  be  arranged  in  four  classes,  distinguished  as  the  first,  second, 
t'hird,  and  fourth  classes.— (3  Mar.,  1853,  c.  77,  s,  3,  v.  10,  p.  209;  3  Mar.,  1855, 
c.  175,  s.  4,  V.  10,  p.  G69;  15  Aug.,  1876,  c.  287,  s.  3,  v.  19,  p.  169.) 


For  compensation  allowed  clerks  of  these  four 
classes  see  section  167,  Revised  Statutes. 
Other  provisions  concerning  the  classi- 
fication of  clerks  are  contained  in  section  C, 
act  January  16, 1883,  "to  regulate  and  improve 
the  civil  service  of  the  United  States"(22  Stat., 
405).  Pursuant  to  said  act  a  classification  of  the 
civil  service,  based  upon  section  163,  Revised 
Statutes,  was  adopted  by  each  head  of  a  de- 
partment and  Government  establishment  by 
direction  of  the  President  on  June  9,  1896.  It 
arranges  officers  and  employees,  other  than 
mere  laborers  and  persons  whose  appointments 
are  confirmed  by  the  Senate,  in  classes  accord- 
ing to  annual  salary  or  compensation,  as  follows: 

A.  Less  than  §720. 

B.  $720  or  more  and  less  than  |840. 

C.  $840  or  more  and  less  than  $900. 

D.  $900  or  more  and  less  than  $1,000. 

E.  $1,000  or  more  and  le.-^s  than  $1,200. 

1.  $1 ,200  or  more  and  loss  than  $1,400. 

2.  $]  ,400  or  more  and  less  than  $1,600. 

3.  $1,600  or  more  and  less  than  $1,800. 


4.  $1,800  or  more  and  less  than  $2,000. 

5.  $2,000  or  more  and  less  than  $2,500. 

6.  $2,500  or  more. 

The  classification  further  provides  that  no 
person  appointed  as  a  laborer  without  examina- 
tion under  the  rules  shall  be  assigned  to  work  of 
the  same  grade  as  that  perfonned  by  classified 
employees,  and  no  person  shall  be  admitted  to 
any  place  not  excepted  from  examination  by 
the  rules  until  he  shall  have  passed  an  appropri- 
ate examination  before  the  Civil  Service  Com- 
mission and  his  eligibility  has  been  certified  to 
the  appointing  officer  hy  the  commission. 
(Report  of  United  States  Civil  Service  Commis- 
sion, 1912,  p.  128;  art,.  53,  Naval  Instructions.) 

The  Railway  Mail  Service  has  a  different 
classification,  prescribed  by  section  1402,  Re- 
vised Statutes,  as  amended  by  an  act  approved 
August  24,  1912  (37  Stat.,  555),  and  a  different 
classification  of  certain  employees  under  the 
Post  Office  Department  is  prescribed  by  act 
of  March  2,  1907  (34  Stat.,  1206). 


Sec.  164.  [Examinations  for  appointment.     Repealed.] 


This  section  provided  as  follows:  "Sec. 
164.  No  clerk  shall  be  appointed  in  any  de- 
partment in  either  of  the  four  classes  above  des- 
ignated until  he  has  been  examined  and  found 
qualified  by  a  board  of  tliree  examiners,  to  con- 
sist of  the  chief  of  the  bureau  or  office  into 
which  such  clerk  is  to  be  appointed  and  two 
other  clerks  to  be  selected  by  the  head  of  the 
department."  (3  Mar.,  1853,  c.  97,  s.  3,  v.  10, 
p.  209;  3  Mar.,  1855,  c.  175,  s.  4,  v.  10,  p.  669.) 


It  was  repealed  by  act  of  Jsnuary  16,  1883 
(22  Stat.,  403),  which  act  provides  for  examina- 
tions to  be  conducted  by  the  Civil  Service 
Commission.     (18  Op.  Atty.  Gen.,  245.) 

See  also  provision  of  section  1753,  Revised 
Statutes,  authorizing  President  to  prescribe 
regulations  for  admission  to  the  ci\'il  service; 
and  see  sections  1754  and  1755  as  to  preference 
of  persons  disabled  in  the  military  or  naval 
service. 


202 


Executive  Departments.        Pt.  2.  REVISED  STATUTES. 


Sec.  166. 


Sec.  165.  [Clerkships  open  to  women.]  Women  may,  in  the  discretion  of  the 
head  of  any  Department,  be  appointed  to  any  of  the  clerkships  therein  author- 
ized by  law,  upon  the  same  requisites  and  conditions,  and  \vith  the  same  com- 
pensations, as  are  prescribed  for  men. — (12  July,  1870,  c.  251,  s.  2,  v.  16,  pp. 
230,  250.) 

See  sec.  167  R.  S. 

Sec.  166.  [Distribution  of  clerks,  temporary  detail.]  Each  head  of  a  Depart- 
ment may,  from  time  to  time,  alter  the  distribution  among  the  various  bureaus 
and  offices  of  his  Department,  of  the  clerks  and  other  employees  allowed  by 
law,  except  such  clerks  or  employees  as  may  be  required  by  law  to  be  exclu- 
sively engaged  upon  some  specific  work,  as  he  may  find  it  necessary  and  proper 
to  do,  but  all  details  hereunder  shall  be  made  by  written  order  of  the  head  of  the 
Department,  and  in  no  case  be  for  a  period  of  time  exceeding  one  hundred  and 
twenty  days.  Provided,  That  details  so  made  may,  on  expiration,  be  renfewed 
from  time  to  time  by  written  order  of  the  head  of  the  Department,  in  each 
particular  case,  for  periods  of  not  exceeding  one  hundred  and  twenty  days. 
All  details  heretofore  made  are  hereby  revoked,  but  may  be  renewed  as  provided 
herein. 


Thig  section  was  amended  to  read  as  above  by 
section  3  of  the  act  of  May  28, 1896  (29  Stat.*, 
179).  Originally  it  provided  as  follows: 
"Sec.  166.  Each  head  of  a  department  may 
from  time  to  time  alter  the  distribution 
among  the  various  bureaus  and  offices  of  his 
department  of  the  clerks  allowed  by  law,  as 
he  may  find  it  necessary  and  proper  to 
do."— (3  Mar.,  1853,  c.  97,  s.  3,  v.  10,  p. 
211.) 

Heads  of  departments  are  required  to  make 
annual  report  to  Congress  of  employees  de- 
tailed to  other  offices.  (Act  Mar.  2,  1895, 
sec.  7,  28  Stat.,  808.) 

By  the  legislative,  executive,  and  judicial  ap- 
propriation act  of  March  3,  1917  (39  Stat., 
1098)  and  other  years,  it  was  provided  that 
all  employees  appropriated  for  in  the  Office 
of  Naval  Records  and  Library  "shall  be 
exclusively  engaged  on  the  work  of  this 
office  during  the  fiscal  year"  for  which 
the  appropriations  were  made. 

As  to  delegation  of  duties  required  by  law  to 
be  performed  by  "head  of  the  department" 
see  note  to  sections  161  and  177,  Revised 
Statutes,  and  19  Op.  Atty.  Gen.,  133. 

For  references  to  laws  concerning  detail  of  em- 
ployees from  executive  departments  to  the 
Ci"\dl  Service  Commission,  from  executive 
departments  to  the  office  of  the  President 
of  the  United  States,  from  duty  outside  of 
the  District  of  Columbia  to  duty  in  the 
executive  departments  in  the  District  of 
Columbia,  and  concerning  transfer  of  em- 
ployees from  one  department  to  another 
department,  see  note  to  section  169,  Re- 
vised Statutes. 

Expenditures  for  personal  services  in  the  Navy 
Department  from  appropriations  made  for 
the  naval  service,  are  restricted  by  the 
naval  appropriation  act  of  June  4,  1920 
(41  Stat.,  833),  the  legislative,  executive, 
and  judicial  appropriation  act  of  March  3, 
1921  (41  Stat.,  1287),  and  by  similar  acts 
for  other  years. 


Scope  of  section. — This  section  as  amended 
restricts  the  detail  of  employees  to  the  depart- 
ment in  which  they  are  regularly  employed. 
From  a  consideration  of  other  laws  bearing  on 
the  subject  (sees.  3678  and  3682,  R.  S.;  act  Aug. 
5,  1882,  sec.  4,  22_Stat.,  255)  it  seems  clear  that 
Congress  has  strictly  limited  the  power  and 
discretion  of  a  head  of  department  in  this  mat- 
ter of  employment  and  detail  to  cases  falling 
within  the  amended  section  166,  Revised 
Statutes.     (25  Op.  Atty.  Gen.,  302.) 

But  see,  30  Op.  Atty.  Gen.,  131,  holding  that 
"there  appears  to  be  notliing  in  the  statutes 
which  proliibits  the  head  of  a  department  from 
permitting  a  clerk  of  his  department  to  render 
additional  services,  withoutextra  compensation 
the  necessity  for  which  arises  in  his  or  in  other 
departments."  Specifically  it  was  held  in  this 
case  that  the  disbursing  clerk  of  one  depart- 
ment might  legally  be  designated  to  disburse 
moneys  for  another  department,  pending  the 
appointment  of  a  disbursing  clerk  as  authorized 
by  law  for  the  latter  department. 

Payment  of  clerks  transferred. — In  mak- 
ing distribution  of  clerks  among  the  various 
bureaus  and  offices  in  accordance  with  this  sec- 
tion, care  should  be  taken  that  in  no  case  shall 
any  such  clerk  be  paid  from  any  appropriation 
made  for  contingent  expenses  or  for  any  specific 
or  general  purpose,  unless  such  payment  is 
specifically  provided  for  in  the  law  granting  the 
appropriation.  (20  Op.  Atty.  Gen.,  750.)  The 
use  of  contingent  appropriations  for  clerical 
compensation  is  restricted  by  section  3682,  Re- 
vised Statutes,  and  by  act  of  August  5,  1882, 
section  4  (22  Stat.,  255). 

"Chiefs  of  divisions"  of  the  Department  of 
Agriculture  are  "clerks"  within  tlie  language 
of  this  section.  (20  Op.  Atty.  Gen.,  703;  see 
also  note  to  sec.  169,  R.  S.) 

Increasing-  and  diminishing  clerks  of  dif- 
ferent grades. — By  act  of  August  15, 1876,  sec- 
tion 3  (19  Stat.,  169),  it  was  provided:  "That 
whenever,  in  the  judgment  of  the  head  of  any 
department,  the  duties  assigned  to  a  clerk  of  one 


54641°— 22- 


■14 


203 


Sec.  167. 


Pt.2.  REVISED  STATUTES.        Executive  Departments. 


at  a  different  rate  of  pay  or  in  excess  of  the  num- 
bers authorized  by  appropriations  made  by 
Congress  be,  and  thev  are  hereby,  repealed." 
See  also  19  Comp.  Dec,  708.] 

WTiere  the  position  of  disbursing  clerk  in  a 
bureau  was  established  by  Congress,  and  has 
since  been  regularly  appropriated  for,  such 
position  must  be  regarded  as  essential  to  the 
organization  of  the  bureau  in  question,  and 
until  Congress  otherwise  provides  it  would  be 
"inconsistent  with  law,"  within  the  meaning 
of  section  161,  Revised  Statutes,  for  the  head 
of  the  department  to  transfer  the  duties  for- 
merly performed  by  such  disbursing  clerk  to 
the  disbursing  clerk  of  the  department  to  which 
the  bureau  is  attached.  (29  Op.  Atty.  Gen., 
247.)  See,  in  this  connection,  30  Op.  Atty. 
Gen.,  131,  noted  above,  under  "Scope  of 
section." 


class  can  be  as  well  performed  by  a  clerk  of  a 
lower  class  or  by  a  female  clerk,  it  shall  be  lawful 
for  him  to  diminLsh  the  number  of  clerks  of  the 
liigher  grade  and  increase  the  number  of  the 
clerks  of  the  lower  grade  within  the  limit  of  the 
total  appropriation  for  such  clerical  service,"  etc. 
[This  provision  is  apparently  repealed  by  the 
act  of  August  5,  1882,  section  4  (22  Stat.,'255), 
which  act  in  part  provides  as  follows:  "That  no 
civil  officer,  clerk  *  *  *  or  other  em- 
ployee shall,  after  the  first  day  of  October  next, 
be  employed  in  any  of  the  executive  depart- 
ments, or  subordinate  bureaus  or  offices  there- 
of at  the  seat  of  government,  except  only  at 
such  rates,  and  in  such  numbers,  respectively, 
as  may  be  specifically  appropriated  for  by  Con- 
gress for  such  clerical  and  other  personal  serv- 
icer for  each  fiscal  year.  *  *  *  And  all  laws 
and  parts  of  laws  authorizing  the  employment 
of  officers,  clerks    *    *    *    or  other  employees 

Sec.  167.  [Salaries  of  persons  employed  in  the  Departments.]  The  aimual 
salaries  of  clerks  and  employes  in  the  Departments,  whose  compensation  is 
not  otherwise  prescribed,  shall  be  as  follows: 

First.    To  clerks  of  the  fourth  class,  eighteen  hundred  dollars. 

Second.  To  clerks  of  the  third  class,  sixteen  hundred  dollars. 

Third.  To  clerks  of  the  second  class,  fourteen  hundred  dollars. 

Fourth.  To  clerks  of  the  first  class,  twelve  hundred  dollars. 

Fifth.  To  the  women  employed  in  duties  of  a  clerical  character,  subor- 
dinate to  those  assigned  to  clerks  of  the  first  class,  including  copyists  and 
counters,  or  temjDorarily  employed  to  perform  the  duties  of  a  clerk,  nine  hun- 
dred dollars. 

Sixth.  To  messengers,  eight  hundred  and  forty  dollars. 

Seventh.  To  assistant  messengers,  seven  hundred  and  twenty  dollars. 

Eighth.  To  laborers,  seven  hundred  and  twenty  dollars. 

Ninth.  To  watchmen,  seven  hundred  and  twenty  dollars. 

(3  Mar.,  1853,  c.  97,  s.  3,  v.  10,  pp.  209,  211;  22  Apr.,  1854,  c.  52,  s  1,  v. 
10,  p.  276;  18  Aug.,  1856,  Res.  18,  v.  11,  p.  145;  23  July,  1866,  c.  208,  s.  6, 
V.  14,  p.  207;  12  July,  1870,  c.  251,  s.  3,  v.  16,  pp.  230,  250.) 


As  to  classification  of  department  clerks,  see  sec- 
tion 163,  Revised  Statutes,and  note  thereto. 

EmplojTnent  and  compensation  of  women — see 
section  16.5,  Re\nsed  Statutes. 

This  section  is  modified  by  act  of  March  4, 1913, 
section  2  (37  Stat.,  790),  fixing  the  pay  of 
telephone-switchboard  operators,  assistant 
messengers,  firemen,  watchmen,  laborers, 
and  charwomen. 

Rules  for  di\'ision  of  time  and  computation  of 
pay,  in  the  cases  of  persons  in  the  civil 
service  whose  stated  compensation  is  an- 
nual or  monthly,  are  gi^-en  in  the  act  of  June 
30,  1906,  section  6  (34  Stat.,  763).  Similar 
rules  for  computation  in  cases  of  persons 
in  the  Army  are  contained  in  the  act  of 
June  12,  1906  (34  Stat.,  248). 

Congress  has  pro\'ided  that  appropriations  made 
in  the  annual  legislative,  executive,  and 
judicial  appropriation  act  are  not  to  be 
used  for  compensation  of  any  person  inca- 
pacitated otherwise  than  temporarily  for 
performing  service.  (Act  Mar.  3,  1917, 
sec.  3,  39  Stat.,  1121.) 


Annual  report  to  Congress  of  employees  "below 
a  fair  standard  of  efficiency"  is  required 
by  act  of  July  11,  1890  (26  Stat.,  268). 
Compensation  may  be  paid    in  certain  cases 
where  employee  is  injured  in  course  of  em- 
ployment.    (Act  Sept.  7,  1916,  39  Stat., 
742.) 
An    employee    of    the    Government    is 
entitled  to  the  compensation  allowed  by 
law,  and  is  not  limited  by  the  amount  appro- 
priated by  Congress.     (Graham's  case,   1  Ct. 
Cls.,  380.) 

^^^lere  one  statute  establishes  the  salary  of 
an  officer  at  $5,000  and  another  appropriates 
only  $3,600  therefor,  and  the  latter  contains  no 
provision  repealing  acts  inconsistent  and  none 
declaring  that  payment  of  the  amounts  appro- 
priated shall  be  in  full  compensation,  it  is  sim- 
ply a  case  of  inadequate  appropriation,  and  the 
officer  can  recover  the  difference.  (French's, 
Case,  16  Ct.  Cls.,  419.) 

The  compensation  of  pubUc  officers  depends 
upon  general  and  continuing  laws,  irrespective 
of  the  annual  appropriation  acts.     (Collins  v. 


204 


Executive  Departments.        Ft.  2.  REVISED  STATUTES. 


Sec.  169. 


U.  S.,  15  Ct.  CLs.,  22;  see  also  Briggs.  v.  U.  S.,  15 
Ct.  Cls.,  48;  Freedmau's  Bank  v.  U.  S.,  16  Ct. 
Cls.,  19.) 

A  statute  wliicli  fixes  the  annual  salary  of 
a  public  officer  at  a  designated  sum  without 
limitation  as  to  time,  is  not  abrogated  or  sus- 
pended by  subsequent  enactments  appropriat- 
ing a  less  amount  for  his  ser\ices  for  a  particular 
fiscal  year,  but  containing  no  words  which 
expressly  or  impliedly  modify  or  repeal  it. 
(U.  S.  V.  Langston,  118  U.  S.,  389;  Vulte's  case, 
47  Ct.  Cls.,  324,  327,  233  U.  S.,  509,  514;  20 
Comp.  Dec,  821;  22  Comp.  Dec,  691.) 

Where  a  salary  is  fixed  by  statute,  and  by 
inadvertence  or  mistake  an  inadequate  sum 
is  appropriated,  no  intention  to  reduce  the 
compensation  can  be  imputed.  But  where 
Congress  by  prospective  appropriation  acts 
gives  notice  to  officers  that  their  salaries  will  be 
reduced,  and  this  notice  is  given  before  the 
service  is  rendered,  and  the  intention  is  clear, 
the  legislative  will  must  be  given  effect.  This 
would  not  apply  to  services  performed  before 
the  appropriation  act  was  passed.  (Dyer  v. 
U.  S.,  20  Ct.  Cls.,  171,  distinguishing  Graham's 
case.     See  also  sec.  169  and  note.) 

Where  the  words  "in  full  compensation"  are 
contained  in  an  appropriation  act  where  the 
amount  appropriated  is  less  than  the  salary 
fixed  ])y  law,  such  words  have  a  clear,  distinct, 
and  well-understood  signification,  which  can 
not  be  overlooked  or  argued  out  of  the  act. 
(Fisher  v.  U.  S.,  15  Ct.  Cls.,  323;  U.  S.  v.  Fisher, 
109  U.  S.,  143;  see  also  U.  S.  v.  Mitchell,  109 
U.  S.,  146.) 


The  failure  of  Congress  to  make  specific  ap- 
propriation for  the  salary  of  the  disl)ursing  clerk 
of  a  department  would  not  appear  to  be  an  in- 
superable objection  to  the  appointment  of  such 
clerk  in  view  of  section  176,  Revised  Statutes, 
which  fixes  the  total  compensation  of  such 
appointee  until  otherwise  provided  by  Congress. 
(30  Op.  Atty.  Gen.,  130.) 

The  whole  ciuestion  depends  on  the  intention 
of  Congress  as  expressed  in  the  statutes.  (Bel- 
knap V.  U.  S.  150  U.  S.,  594,  quoting  U.  S.  v. 
TVIitchell,  109  U.  S.,  146,  150,  and  holding  that 
' '  the  payment  to  an  Indian  agent  of  the  amount 
appropriated  by  Congress  for  the  payment  of 
his  salary  being  less  than  the  amount  fixed  by 
general  law  as  the  salary  of  the  office,  and  liia 
receipt  of  the  sum  paid  '  in  full  of  my  pay  for 
services  for  the  period  herein  expressed',  is  a 
full  satisfaction  of  the  claim."  See  also  Dun- 
woody  V.  U.  S.,  143  U.  S.,  578;  Wallace  v.  U.  S., 
133  U.  S.,  180;  Kidder  v.  U.  S.  20  Ct.  Cls.,  46; 
Francis  v.  U.  S.,  22  Ct.  Cls.,  403.) 

[Act of  August  5, 1882,  section  4  (22  Stat.,  255), 
provides  that  no  persons  shall  be  employed  in 
any  executive  department  except  at  such  rates 
and  in  such  numbers  as  may  be  specifically 
appropriated  for  by  Congress.  By  legislative, 
executive,  and  judicial  appropriation  act  of 
July  16,  1914,  section  6  (38  Stat.,  509),  it  is  pro- 
vided that  "the  rates  of  salaries  or  compensa- 
tion of  officers  or  employees  herein  appropriated 
shall  constitute  the  rate  of  salary  or  compensa- 
tion of  such  officers  or  employees,  respectively, 
until  otherwise  fixed  by  annual  rate  of  appro- 
priation or  other  law."] 


Sec.  168.  [Temporary  clerks.]  Except  when  a  different  compensation  is 
expressly  prescribed  by  law,  any  clerk  temporarily  employed  to  perform  the 
same  or  similar  duties  with  those  belonging  to  clerks  of  either  class,  is  entitled 
to  the  same  salary  as  is  allowed  to  clerks  of  that  class. — (22  April,  1854,  c.  52, 
s.  1,  V.  10,  p.  276.) 


Any  person  temporarily  appointed  under  cer- 
tain circmnstances  to  perform  the  duties  of 
a  pay  officer  in  the  Navy  during  a  vacancy 
shall  be  entitled  to  receive  the  pay  of  such 
grade  while  so  acting.  See  sections  1381 
and  1564,  Revised  Statutes. 

Section  242,  Revised  Statutes,  provides  that 
"No  clerk  temporarily  employed  in  the 


Department  of  the  Treasury  shall  receive 
a  greater  compensation  than  at  the  rate  of 
$1,200  a  year  for  the  time  actually  em- 
ployed." 
See  section  171,  Revised  Statutes,  as  to  em- 
ployment of  extra  clerks  during  sessions  of 
Congress. 


Sec.  169.  [Appointment,  number,  and  compensation  of  employes  author- 
ized.] Each  head  of  a  Department  is  authorized  to  employ  in  his  Department 
such  number  of  clerks  of  the  several  classes  recognized  by  law,  and  such  mes- 
sengers, assistant  messengers,  copyists,  watchmen,  laborers,  and  other  employes, 
and  at  such  rates  of  compensation,  respectively,  as  may  be  ajij^ropriated  for  by 
Congress  from  year  to  year. — (Ex  parte  Hennen,  13  Pet.  230;  3  Mar.  1875,  c.  129, 
V.  18,  ff.  360,  361,  and  365;  3  Mar.,  1875,  c.  130,  ss.  2,  3,  v.  18,  f.  399.) 


See  note  to  section  166,  re  distribution  of  clerks 
and  temporary  details. 

Employment  of  persons  beyond  appropriations 
made  by  law  is  prohibited  by  act  of  August 
5,  1882,  section  4  (22  Stat.,  255),  and  act 
of  August  15,  1876,  section  5  (19  Stat., 
169). 


Expenditures  beyond  appropriations  prohibited 
by  section  3679,  Revised  Statutes. 

Acceptance  of  voluntary  service  prohibited, 
except  in  sudden  emergencies.  (Act  Mav 
1,  1884,  23  Stat.,  17;  act  Mar.  3,  1905,  33 
Stat.,  1257;  and  act  Feb.  27,  1906,  34 
Stat.,  49.) 


205 


Sec.  169. 


rt.2.  REVISED  STATUTES.        Executive  Departments. 


Salaries  paid  from  "lump  sum"  appropriations 
can  not  be  increased  except  under  certain 
prescribed  conditions.  (Act  Aug.  2G,  1912, 
sec.  7,  37  Stat.,  (52(5,  as  amended  l)v  act 
Mar.  4,  1913,  sec.  4,  37  Stat.,  790;  19  Comp. 
Dec,  184,  270,  303,  569,  578,  789;  20  Comp. 
Dec,  9,  128,  131.) 

Oath  of  office  prior  to  appointment  is  prescribed 
by  section  1757,  Revised  Statutes,  ae 
amended. 

Employees  serving  for  a  less  period  than  a  year 
are  limited  to  the  maximum  pro  rata  rate 
proA^ded  bv  law  for  the  time  thev  mav  be  in 
service.  (Sec.2GS7,  R.S.;  27  Op.\A.tty.Gen., 
358;  Marston  v.  U.  S.,  71  Fed.  Rep.,  496.) 

Civil  employees  paid  from  appropriations  for 
the  military  or  naval  establishment  or  other 
branch  of  t'he  public  service  outside  of  Dis- 
trict of  Columbia  can  not  be  detailed  for 
duty  in  any  division  of  any  executive  de- 
partment in  the  District  of  C'olumbia.  (Act 
June  22,  1906,  sec.  6,  34  Stat.,  449;  similar 
pro\'ision  is  contained  in  act  of  Aug.  5, 
1882,  sec  4,  22  Stat.,  255.) 

Classified  employees  not  to  be  detailed  for 
duty  outside  of  District  of  Columbia  at 
expense  of  appropriations  in  legislative, 
executive  and  judicial  act,  except  for 
duty  pertaining  directly  to  their  work  at 
seat  of  Government.  (Act  May  10,  1916, 
sec.  5,  39  Stat.,  120.) 

Expenditures  for  personal  services  in  the  Navy 
Department  from  appropriations  made  for 
the  naval  service.  (See  note  to  section 
166,  R.  S.) 

The  emplojTnent  of  enlisted  men  of  the  Marine 
Corps  on  clerical  duty  at  headquarters  of 
the  Marine  Corps  is  permitted  by  law. 
(File  4600,  Apr.  10,  1906;  21686,  Apr.  11, 
1906.) 

Detail  of  employees  from  the  executive  depart- 
ments to  the  Civil  Service  Commission  for 
duty  in  the  District  of -Columbia  is  pro- 
hibited by  act  of  March  4,  1913  (37  Stat., 
750);  20  Comp.  Dec,  106. 

Temporary  detail  of  employees  in  executive 
departments  to  office  of  President  of  the 
United  States  is  authorized  by  act  of 
March  4,  1913  (37  Stat.,  749). 

Transfer  of  employees  from  one  department  to 
another  department  is  restricted  bv  act 
of  June  22,  1906,  section  5(34  Stat.,' 449), 
as  amended  bv  acts  of  October  6,  1917  (40 
Stat.,  383),  and  March  28,  1918  (40  Stat.. 
498). 

As  to  payment  of  employees  temporarily  de- 
tailed to  other  departments,  see  22  Comp. 
Dec,  145,  and  section  3678,  Revised  Stat- 
utes. 

For  number  and  compensation  of  employees 
authorized  by  appropriations  of  Congress, 
in  accordance  with  this  section,  to  be  em- 
ployed in  the  Xavv  Department,  see  act  of 
July  16,  1914  (38  Stat., 403)  and  subsequent 
appropriation  acts.  See  also  section  416, 
Revised  Statutes,  which  specified  number 
and  compensation  of  certain  principal  em- 
ployees who  "shall  be"  in  the  Navy  De- 
partment; and  section  6,  legislative,  execu- 
tive, and  judicial  appropriation  act  of  July 
16,  1914  (38  Stat.,  509),  providing  that  "'the 
rates  of  salaries  or  compensation  of  officers 


or  employees  herein  appropriated  shall  con- 
stitute the  rate  of  salary  or  compensation 
of  such  oflicers  or  employees,  respectively, 
until  othervvi.se  fixed  by  annual  rate  of 
appropriation  or  other  law." 
The  word  "employ"  as  used  in  this  section 
is  equivalent  to  "appoint"  (21  Op.  Atty.  Gen., 
355.  3(53). 

The  expression  "clerks  of  the  several 
classes  recognized  by  law,"  as  used  in  this 
section,  is  not  limited  in  its  effect  to  the  four 
main  classes  of  clerks  mentioned  in  sections  163 
and  167,  Revised  Statutes,  but  has  always  been 
treated  as  including  chiefs  of  division,  chief 
clerks,  and  disbursing  clerks  of  the  various  de- 
partments. Accordingly,  held  that  the  chief 
clerk,  chiefs  of  bureaus,  and  translator  in  the 
State  Department  are  all  "clerks"  within  the 
meaning  of  this  section,  and  are  to  be  appointed 
by  the  Secretary  of  State.  (21  Op.  Atty.  Gen., 
363.)  In  this  case  the  so-called  "bureaus"  in 
the  State  Department  were  originally  estab- 
lished by  regulation,  and  although  recognized 
by  (Congress  in  appropriation  acts  they  were  not 
bureaus  within  the  meaning  of  section  178,  Re- 
vised Statutes.  The  Attorney  General  said: 
The  word  ' '  bureau, ' '  like  many  others,  is  loosely 
used  in  the  revision,  the  terminology  of  the 
codified  statutes  not  having  been  made  entirely 
definite  and  uniform. 

The  position  of  chief  of  the  division  of  Alaska 
fisheries  in  the  Bureau  of  Fisheries  ($3,500)  was 
established  by  an  appropriation  item,  silent  as 
to  how  or  by  \vhom  the  position  should  be  filled. 
The  general  character  of  his  duties  is  not  unlike 
that  of  chiefs  of  divisions  generally  in  the  sev- 
eral executive  departments.  Accordingly, 
held  that  appointment  should  be  made  by  head 
of  the  department.  (29  Op.  Atty.  Gen.,  116.) 
This  section  was  unquestionably  intended  to 
have  a  very  comprehensive  scope,  and  to  em- 
brace a  variety  of  subordinate  officers  in  the 
different  departments,  besides  those  designated 
as  clerks  of  the  first,  second,  third,  and  fourth 
classes;  and  in  view  of  the  fact  that  section  169 
is  a  standing  provision  it  is  also  fair  to  assume 
that  Congress  did  not  intend  it  to  be  limited  to 
the  classes  of  clerks  "recognized  by  law"  at  the 
time  of  the  revision.  (29  Op.  Atty.  Gen.,  116.) 
Engravers,  electrotypers,  photographers 
(Coast  and  (leodetic  Survey),  and  also  physi- 
cists, assistant  physicists,  assistant  chemists, 
laboratory  assistants,  aids,  and  superintendent 
of  mechanical  plant  (Bureau  of  Standards),  fall 
within  the  provisions  of  this  section  and  should 
be  appointed  by  the  head  of  the  department. 
Wliile  they  are  in  the  main  positions  requiring 
technical  skill,  they  are  "clerks"  within  the 
meaning  of  section  169.  (29  Op.  Atty.  Gen., 
116;  approving  15  Op.  Atty.  Gen.,  6.) 

In  the  Navy  Department  the  solicitor,  the 
chief  clerk  of  the  department,  and  the  chief 
clerks  of  the  different  bureaus  are  in  practice 
appointed  by  the  Secretary  of  the  Navy  in  ac- 
cordance with  this  section.  The  appointment 
of  disbursing  clerks  is  specifically  provided  for 
by  section  176,  Revised  Statutes. 

A  local  agent  at  Seattle,  Wash.,  should  be 
employed  by  the  head  of  the  department  under 
this  section.  I  am  advised  informally  by  the 
Bureau  of  Fisheries  that  his  duties  are  to  be 
strictly  clerical.     (29  Op.  Atty.  Gen.,  116.) 


206 


Executive  Departments.        rt.  2.  REVISED  STATUTES. 


Sec.  169. 


This  section  does  not  invest  the  head  of  the 
Treasury  Department  with  authority  to  appoint 
certain  deputy  bureau  officers  authorized  by  law 
in  tliat  departmen t ;  but  their  api:)ointment  must 
be  made  under  the  Constitution  by  the  Presi- 
dent, with  the  advice  and  coubent  of  the  Senate. 
(See  Constitution,  Art.  II,  sec.  2,  par.  2.;  15 
Op.  Atty.  Gen.,  3;  26  Op.  Atty.  Gen.,  627.) 

The  office  of  Deputy  Commissioner  of  Fish- 
eries, at  an  annual  salary  of  $3,000,  created  by 
an  item  in  an  appropriation  act,  which  failed 
to  specify  how  or  by  whom  the  appointment 
should  be  made,  or  to  prescribe  its  duties, 
should  be  filled  by  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate.  In  the 
absence  of  an  express  enactment  to  the  con- 
trary the  appointment  of  any  officer  of  the 
United  States  belongs  to  the  President  and 
Senate  (citing  6  Op.  Atty.  Gen.,  1;  15  Op.  Atty. 
Gen.,3,  449;  17  Op.  Atty.  Gen.,  532;  18  Op.  Atty. 
Gen.,  98,  298;  26  Op.  Atty.  Gen.,  627).  The 
title  of  the  office  in  this  case  necessarily  implies 
a  power  to  perform  all  the  duties  which  might 
be  performed  by  the  Commissioner  of  Fisheries, 
the  nature  of  whose  duties  is  defined  by  statute, 
and  whose  appointment  is  vested  in  the  Presi- 
dent, by  and  with  the  advice  and  consent  of 
the  Senate.  Accordingly,  held  that  a  Deputy 
Commissioner  of  Fisheries  appointed  by  the 
head  of  the  department  was  not  legally  ap- 
pointed, his  status  being  that  of  a  de  facto 
officer.     (29  Op.  Atty.  Gen.,  116.) 

The  positions  of  assistant  salmon  agent 
($1,800),  salmon  warden  ($1,200),  and  deputy 
wardens  ($600),  must  be  filled  by  the  President, 
by  and  with  the  advice  and  consent  of  the 
Senate.  There  is  no  express  statutory  author- 
ity giving  the  head  of  the  department  power  to 
make  such  appointments.  These  are  officers 
whose  duties  are  manifestly  not  clerical,  nor 
can  they  be  considered  otherwise  within  the 
scope  of  section  169,  Revised  Statutes.  (29 
Op.  Atty.  Gen.,  116.) 

The  sole  responsibility  of  every  appoint- 
ment in  a  department  rests  upon  the  head  of 
that  department,  except  where  the  power  to 
appoint  is  otherwise  specially  provided  for  by 
statute.  The  power  of  appointment  carries 
with  it  the  power  of  removal.  These  powers, 
being  discretionary,  can  not  be  delegated 
by  the  head  of  the  department,  though  he  may 
inquire,  investigate,  and  determine  by  the  aid 
of  subordinates;  but  the  final  determination 
must  be  his  act  and  not  theirs.  (21  Op.  Atty. 
Gen.,  355;  29  Op.  Atty.  Gen.,  274.  See  note 
to  sec.  177,  R.  S.) 

The  power  of  appointment,  especially  where 
fixed  by  statute  in  the  head  of  the  department, 
can  not  be  delegated  to  subordinates  without 
authority  of  Congress;  but  where  Congress  au- 
thorizes the  chief  clerk  of  a  department  to  sign 
official  papers  during  the  temporary  absence  of 
the  Secretary  and  Assistant  Secretaries  of  the 
department,  this  is  sufficient  authority  to  sign 
appointment  of  a  special  disbursing  agent, 
although  the  law  required  such  agents  be  ap- 
pointed bv  the  head  of  the  department.  (29 
Op.  Atty.  Gen.,  273.) 

The  written  appointment  of  the  Secretary  of 
the  Navy,  or  his  approval  in  writing,  is  required 
for  the  employment  of  any  clerk,  etc.,  in  the 


Navy  Department.     (Art.  52,  Naval  Instruc- 
tions, 1913.) 

Appointments  made  by  the  heads  of  bu- 
reaus in  accordance  with  statute  are  presumed 
to  be  made  with  approval  of  the  head  of  the 
department,  and  are  made  by  the  head  of  a 
department  within  the  meaning  of  section  2, 
Article  II,  of  the  Constitution.  (Price  v. 
Abbott,  17  Fed.  Rep.,  506;  Frelinghuvsen  v. 
Baldwin,  12  Fed.  Rep.,  396;  Stanton  f).  Wilke- 
son,  22  Fed.  Cas.  No.  13299;  Ekiu  v.  U.  S., 
142  U.  S.,  651.) 

A  substitute  clerk  can  not  be  employed 
in  place  of  a  clerk  in  the  Navy  Department  on 
leave  without  pav.  (15  Comp.  Dec,  856;  com- 
pare Chisolm  V.  tJ.  S.,  27  Ct.  Cls.,  94.) 

A  substitute  clerk  can  be  employed 
under  a  rule  of  the  Civil  Service  Commission, 
if  approved  by  the  President,  where  such  em- 
ployment would  impose  no  additional  expendi- 
ture upon  the  Government,  i.  e.,  where  the 
regular  clerk  is  temporarily  absent  without  pay. 
And  such  a  rule  would  not  be  contrary  to  the 
act  of  August  5,  1882,  section  4  (22  Stat.,  255). 
(19  Op.  Atty.  Gen.,  507.) 

An  employee  entering  upon  duty  on 
the  last  day  of  a  month  which  has  31  days 
can  not  lawfully  be  paid  for  services  rendered 
on  that  day.  (20  Comp.  Dec,  165,  affirming 
13  Comp.  Dec,  64  and  75;  see  also  20  Comp. 
Dec,  772,  867.) 

Date  of  appointment. — An  appointment 
made  to  take  effect  at  a  prior  date  is  inoperative 
prior  to  the  date  on  which  it  was  actually  made 
and  accepted.  (8  Comp.  Dec,  521;  20  Comp. 
Dec,  214,  citing  Morey  v.  U.  S.,  35  Ct.  Cls.,  603; 
Jackson  v.  U.  S.,  42  Ct.  Cls.,  39;  17  Comp.  Dec, 
452.) 

An  appointment  to  office  is  an  act  done,  a 
direct  exercise  of  power  in  some  particular 
direction,  not  necessarily  evidenced  in  writing 
but  none  the  less  complete  at  a  particular  point 
of  time;  and  until  the  act  is  done  it  remains 
undone.  Something  more  than  the  act  of  ap- 
pointment also  is  necessary  to  invest  the  person 
appointed  with  the  office  and  to  give  him  the 
right  to  compensation.  It  must  be  accepted, 
and  it  is  not  understood  how  an  appointment 
can  be  accepted,  either  formally  or  impliedly, 
before  it  has  been  made.  (8  Comp.  Dec, 
521;  Lee  v.  U.  S.,  45  Ct.  Cls.,  62.) 

Acceptance  is  a  distinct  act  from  the 
appointment. — The  appointment  is  the  sole 
act  of  the  appointing  power;  the  acceptance  is 
the  sole  act  of  the  officer,  and  is  in  plain  com- 
mon sense  posterior  to  the  appointment.  As 
he  may  resign,  so  may  he  refuse  to  accept;  but 
neither  the  one  nor  the  other  is  capable  of 
rendering  the  appointment  a  nonentity.  (Mar- 
bury  V.  Madison,  1  Cranch.,  137.) 

Acceptance  is  necessary  to  vest  the  office  in 
the  appointee,  and  a  formal  acceptance  is  the 
evidence  which  in  the  public  service  generally, 
it  has  been  customary  to  require.  (12  Op. 
Atty.  Gen.,  229.)  But  where  a  former  officer  of 
the  Army  asked  the  President  in  writing  to  re- 
instate him  under  an  act  of  Congress,  and  the 
President  did  so,  no  further  formal  acceptance 
was  necessary.     (Collins  ti.  U.  S.,  15  Ct.Cls.,  31.) 

Execution  of  the  oath  of  office  may  be  re- 
garded as  an  acceptance  of  the  office.  (8  Comp. 
Dec,  521;  19  Op.  Atty.  Gen.,  284.) 


207 


Sec.  171. 


Pt.2.  REVISED  STATUTES.        Executive  Departments. 


Expiration  of  appointment. — ^^^lere  the 
appointment  ifl  to  tenninato,  nncler  its  terms, 
upon  the  happening  of  an  event  which  is  un- 
certain, notice  to  the  employee  of  its  happening 
is  necessary  to  entl  his  contract  of  employment, 
notwithstanding  the  prior  occurrence  of  the 
event  which  fixed  the  termination.  (20  Comp. 
Dec,  149.) 

Right  to  compensation. — A  salary  that  is 
established  by  statute  can  not  be  increased  or 
diminished  by  executive  ofiicers.  (Adams  v. 
U.  S.,  20  Ct.  Cla.,  115;  Dyer  v.  U.  S.,  20  Ct. 
Cls.,  166.) 

A  jniblic  officer  may  recover  the  lawful  com- 
pensation of  his  office,  notwithstanding  that  he 
accepted  a  less  amount  and  receipted  in  full 
therefor.  (Adams  v.  U.  S.,  20  Ct.  Cls.,  115; 
quoted  with  approval,  Glavey  v.  U.  S.,  182 
U.  S.,  607.) 

It  is  not  within  the  power  of  the  head  of  a 
department  to  reduce  or  change  the  salary  of 


scribed;  and  an  agreement  to  that  effect,  being 
contrary  to  public  policy,  will  not  be  enforced 
or  given  effect  as  an  estoppel.  (Miller  v.  U.  S., 
103  Fed.  Rep.,  413;  Glavey  v.  U.  S.,  182  U.  S., 
605.  (See  also  notes  to  sees.  166  and  167, 
Revised  Statutes.) 

There  is  no  legal  necessity  for  the  re- 
appointment of  the  present  inciunbents  of 
offices  where  there  appears  to  be  no  evidence 
that  Congress  intended  to  abolish  the  existing 
positions  and  create  new  ones.  The  mere  crea- 
tion of  a  new  administrative  division  in  which 
such  positions  are  placed  does  not  establish 
new  offices.  The  existing  offices  are  continued . 
(29  Op.  Atty.  Gen.,  116;  compare  21  Comp. 
Dec,  49.) 

A  new  appointment  is  not  made  necessary 
merely  by  reason  of  an  increase  in  the  salary  of 
an  office.  (29  Atty.  Gen.,  116;  citing  1  Comp. 
Dec,  267;  1  Comp.  Dec,  313;  3  Comp.  Dec,  336; 
compare  4  Comp.  Dec,  28.) 


an  officer  which  Congress  has  specifically  pre- 

Sec.  170.  [Extra  compensation  to  clerks  restricted.]  No  money  shall  be 
paid  to  any  clerk  employed  in  either  Department  at  an  annual  salary,  as  com- 
pensation for  extra  services,  miless  expressly  authorized  by  law. — (3  Mar.,  1863, 
c.  97,  s.  3,  V.  10,  pp.  209,  211;  17  June,  1844,  c.  105,  s.  1,  v.  5,  pp.  681,  687; 
28  Feb.,  1867,  Res.  30,  s.  2,  v.  14,  p.  569.) 

also  by  act  of  March  4, 1907  (34  Stat.,  1372), 
providing  that,  "To  enable  the  Secretary 
of  the  Treasury  to  effect  a  change  in  the 
methods  of  bookkeeping  in  the  Treasury 
Department,  and  to  install  a  double  entry 
system  of  bookkeeping,  15,000,  or  so  much 
thereof  as  may  be  necessary,  is  hereby  ap- 
propriated, to  remain  available  until  ex- 
pended; said  sum  to  be  used  by  the  Secre- 
tary of  the  Treasury,  as  he  shall  determine, 
in  payment  for  services  of  such  of  the  force 
of  the  Division  of  Bookkeeping  and  War- 
rants of  the  Treasury  Department  as  may 
be  needed  to  carry  the  change  into  effect, 
notwithstanding  the  provisions  of  sections 
170,  1763,  1764,  and  1765  of  the  Revised 
Statutes." 


Compensation  for  extra  services  "which  any 
officer  or  clerk  may  be  required  to  per- 
form," imless  expressly  authorized  by  law, 
is  prohibited  by  section  1764,  Revised 
Statutes.  See  that  section  and  note 
thereto. 

Compensation  not  to  be  charged  by  persons  in 
departments  for  administering  oaths  of 
office  to  emplovees  on  appointment  or 
promotion.  (Act  Aug.  29,  1890,  26  Stat., 
371.) 

This  section  was  expressly  modified  by  act  of 
March  3,  1879  (20  Stat.,  384),  which  author- 
ized the  Secretary  of  the  Treasury  to  pay 
additional  compensation  to  clerks  of  his 
department  during  that  year,  for  work  done 
"in  addition  to  the  usual  business  hours;" 


Sec.  171.  [Employment  of  extra  clerks  during  sessions  of  Congress.]  No 
extra  clerk  shall  be  employed  in  any  Department,  Bureau,  or  office,  at  the  seat  of 
Government,  except  durmg  the  session  of  Congress,  or  when  indispensably 
necessary  in  answering  some  call  made  by  either  House  of  Congress  at  one 
session  to  be  answered  at  another;  nor  then,  except  by  order  of  the  head  of  the 
Department  in  which,  or  in  some  Bureau  or  office  of  which,  such  extra  clerk 
shall  be  employed.  And  no  extra  clerk  employed  in  either  of  the  Departments 
shall  receive  compensation  except  for  time  actually  and  necessarily  employed, 
nor  any  greater  compensation  than  three  dollars  a  day  for  copying,  or  four 
dollars  a  day  for  any  other  service. — (26  Aug.,  1842,  c.  202,  s.  15,  v.  5,  p.  526; 
15  Aug.,  1876,  c.  287,  s.  5,  v.  19,  p.  169.) 

In  connection  with  this  section  consult 

actof  August 5,1882,  section 4  (22  Stat.,  255),  and 
act  of  August  15,  1876,  section  5  (19  Stat.,  169), 
which  acts  prohibit  employment  of  clerks,  etc., 
by  heads  of  departments  beyond  appropriations 
made  by  law.  Although  the  former  act  ex- 
pressly repealed  section  172,  Revised  Statutes, 
it  contained  no  specific  reference  to  this  sec- 


tion. Section  3682,  Revised  Statutes,  and  actof 
August  5,  1882,  section  4  (22  Stat.,  255),  restrict 
use  of  contingent  and  miscellaneous  appropria- 
tions for  clerical  compensation. 

This  section  was  repealed  (according  to 
the  Comptroller)  by  the  act  of  August  5,  1882, 
section  4  (22  Stat.,  255).  (Comp.  Dec,  Oct.  28, 
1915,  file  26254-1906.) 


208 


Executive  Departments.        Ft.  2.  REVISED  STATUTES. 


Sec.  176. 


Sec.   172.  [Restriction  on  employment   of   messengers   and   laborers, 
pealed.] 


Re- 


by  law,  or  is  necessary  to  carry  into  effect  some 
object  for  which  an  appropriation  has  been 
specifically  made."— (26  Aug.,  1842,  c.  202,  e. 
15,  V.  5,  p.  526.) 

It  was  repealed  by  act  of  August  5,  1882, 
8ection4  (22  Stat.,  255;  25  Op.  Atty.  Gen.,  302.) 


This  section  was  as  follows:  "  Sec.  172. 
No  messenger,  assistant  messenger,  laborer,  nor 
other  subordinate  assistant  shall  be  employed 
in  any  department,  bureau,  or  office  at  the  seat 
of  Government,  or  paid  out  of  the  contingent 
fund  appropriated  to  such  department,  bureau, 
or  office,  unless  such  employment  is  authorized 

Sec.  173.  [Duties  of  chief  clerks,  supervising  subordinates.]  Each  chief 
clerk  in  the  several  Departments,  and  Bureaus,  and  other  offices  connected 
with  the  Departments,  shall  supervise,  under  the  direction  of  his  immediate 
superior,  the  duties  of  the  other  clerks  therein,  and  see  that  they  are  faithfully 
performed.— (26  Aug.,  1842,  c.  202,  s.  13,  v.  5,  p.  525.) 


the  exercise  of  his  many  and  varied  and  impor- 
tant duties  and  responsibilities,  he  has  an  office 
force,  super\ised  by  the  chief  clerk  of  the 
department,  which  is  required  to  determine 
and  pass  upon  all  matters  requiring  his  action 
which,  by  law  or  regulation,  are  not  otherwise 
required  to  be  handled.     (File  22353-13.) 


For  authority  of  chief  clerks  to  administer  oaths 

of  office,  see  act  of  August  29, 1890  (26  Stat., 

371.) 
For  authority  of  chief  clerk  to  act  as  chief  of 

bureau,  see  section  178,  Revised  Statutes. 
As  to  meaning  of  "chief  clerk"  see  note  to 

section  178,  Revised  Statutes. 
Chief  Clerk,  Navy  Department.— To  fa- 
cilitate and  aid  the  Secretary  of  the  Navy  in 

Sec.  174.  [Duties  of  chief  clerks ;  monthly  reports,  etc.]  Each  chief  clerk 
shall  take  care,  from  time  to  time,  that  the  duties  of  the  other  clerks  are  distrib- 
uted with  equality  and  uniformity,  according  to  the  nature  of  the  case.  He  shall 
revise  such  distribution  from  time  to  tune,  for  the  purpose  of  correcting  any 
tendency  to  undue  accumulation  or  reduction  of  duties,  whether  arising  from 
individual  negligence  or  incapacity,  or  from  increase  or  diminution  of  particular 
kinds  of  business.  And  he  shall  report  monthly  to  his  superior  officer  any 
existing  defect  that  he  may  be  aware  of  in  the  arrangement  or  dispatch  of 
business.— (26  Aug.,  1842,  c.  202,  s.  13,  v.  5,  p.  525.) 


Heads  of  departments  are  required  to  make 
quarterly  reports  to  the  President  of  the 
condition  of  business  by  act  March  15,  1898, 
section  7  (30  Stat.,  316.) 


Condition  of  business  is  required  to  be  reported 
monthly  to  head  of  department  by  chiefs 
of  bureaus  and  offices,  by  act  of  March  15, 
1898  (30  Stat.,  317).  In  the  Navy  Depart- 
ment a  report  of  condition  of  business  is 
required  quarterly  from  bureaus  and  offices. 
(Art.  11,  Naval  Instructions.) 

Sec.  175.  [Action  on  reports  of  chief  clerks.]  Each  head  of  a  Department, 
chief  of  a  Bureau,  or  other  superior  officer,  shall,  upon  receiving  each  monthly 
report  of  his  chief  clerk,  rendered  pursuant  to  the  preceding  section,  examine 
the  facts  stated  therein,  and  take  such  measures,  in  the  exercise  of  the  powers 
conferred  upon  him  by  law,  as  may  be  necessary  and  proper  to  amend  any 
existing  defects  in  the  arrangement  or  dispatch  of  business  disclosed  by  such 
report.— (26  Aug.,  1842,  c.  202,  s.  13,  v.  5,  p.  525.) 


see.  5,  27  Stat.,  715,  as  amended  by  act 
Mar.  15,  1898,  30  Stat.,  317.) 


Heads  of  departments  are  required  to  extend 
hours  of  labor  in  certain  cases  when  public 
business  is  in  arrears.     (Act  Mar.  3,  1893, 

Sec.  176.  [Disbursing  clerks.]  The  disbursing  clerks  authorized  by  law 
in  the  several  Departments  shall  be  appointed  by  the  heads  of  the  respective 
Departments,  from  clerks  of  the  fourth  class;  and  shall  each  give  a  bond  to  the 
United  States  for  the  faithful  discharge  of  the  duties  of  his  office  according  to 
law  in  such  amount  as  shall  be  directed  by  the  Secretary  of  the  Treasury,  and 

209 


Sec.  176. 


Pt.2.  REVISED  STATUTES.        Executive  Departments. 


with  sureties  to  the  satisfaction  of  the  Solicitor  of  the  Treasury;  and  shall 
from  time  to  time  renew,  strengthen,  and  increase  liis  ollicial  bond,  as  the 
Secretary  of  the  Treasury  may  direct.  Each  disbursing  clerk,  except  the 
disbursmg  clerk  of  the  Treasury  Department,  umst,  when  directed  so  to  do  by 
the  head  of  the  Department,  superintend  the  buildmg  occupied  by  his  Depart- 
ment. Each  disbursing  clerk  is  entitled  to  receive,  in  compensation  for  his 
services  in  disbursing,  such  sum  in  addition  to  his  salary  as  a  clerk  of  the  fourth 
class  as  shall  make  his  whole  annual  compensation  two  thousand  dollars  a 
year.— (3  Mar.,  1853,  c.  97,  s.  3,  v.  10,  pp.  209,  211;  3  Mar.,  1855,  c.  175,  s.  4, 
V.  10,  p.  669;  3  Mar.,  1873,  c.  226,  s.  X,  v.  17,  p.  485  (492).) 


The  salary  of  the  disbursing  clerk  in  the  Navy 
Department  was  lixed  at  §2,250  per  annum 
by  act  of  May  29,  1920  (41  Stat.,  663),  and 
appropriation  acts  for  prior  yeai-s.  Specific 
provision  for  salary  of  a  disbursing  clerk  in 
the  Navy  Department  was  omitted  in  the 
appropriation  act  of  March  3,  1921  (41 
Stat..  1282),  the  position  of  "disbursing 
officer"  at  $3,000  per  annum  having  in  the 
meantime  been  created  from  lump  sum 
appropriations.  (See  Estimates  of  Appro- 
priations, 1922,  p.  102.) 

The  appointment  of  a  superintendent  for  the 
State,  War,  and  Na\y  Department  Build- 
ing, by  detail  from  officers  of  the  Army  or 
Navy,  is  provided  for  by  act  of  March  3, 
1883  (22  Stat.,  553).  See  note  to  section 
415,  Revised  Statutes. 

Temporary  appointment  in  case  of  absence  or 
sickness  of  disbursing  clerk  is  authorized 
by  act  of  March  4,  1909  (35  Stat.,  1027). 

The  emplojTnent  of  special  disbursing  agents 
is  provided  for  by  section  3614,  ile^dsed 
Statutes.     (30  Op.  Atty.  Gen.,  132.) 

Disbursing  agents  abroad  are  not  to  be  employed 
for  naval  ser\'ice,  under  contract  or  other- 
wise, unless  they  hold  appointments  con- 
firmed by  tlxe  Senate.     (Sec.  1550,  R.  S.) 

Duty  of  disbursing  officers  to  examine  pay- 
rolls and  vouchers.  (Act  Aug.  23, 1912,  37 
Stat.,  375.) 

Disbursing  officers  may  apply  for  and  obtain 
decision  of  Comptroller  of  the  Treasury 
concerning  legahty  of  proposed  payments 
(act  July  31,  1894,  sec.  8,  28  Stat.,  208); 
and  may  appeal  to  Comptroller  of  the  Treas- 
ury from  disallowances  in  their  accounts  by 
auditor.     (Same  act  and  section.) 

On  general  subject  of  accounting,  see  section 
236,  Revised  Statutes,  and  note  thereto. 

All  books,  papers,  and  other  matters  relating  to 
the  office  or  accounts  of  disbursing  officers 
of  the  executive  departments  shall  at  all 
times  be  subject  to  inspection  and  exami- 
nation by  the  Comptroller  of  the  Treasury, 
and  the  auditor  of  tlie  Treasury  authorized 
to  settle  such  accounts,  or  by  the  duly 
authorized  agents  of  either  of  said  officials. 
(Act  Feb.  19,  1897,  29  SUit.,  550. )_ 
Disbursing  officers  are  required  to  furmish  heads 
of  departments  with  certain  data  for  annual 
reports  to  Congress  (sec.  193,  R.  S.)  and  are 
required  to  make  annual  report  to  the 
Secretary  of  the  Treasury  of  checks  out- 
standing for  three  years  or  more.  (Sec. 
310,  R.  S.) 


Secretary  of  the  Treasury  is  required  to  report 
annually  to  Congress  disbursing  officers 
delinquent  in  rendering  accounts.  (Act 
May  28,  1896,  29  Stat.,  179.) 

Embezzlement — on  general  subject  of,  see  sec- 
tions 86-96,  Criminal  Code,  act  of  March  4, 
1909  (35  Stat.,  1105, 1106),  and  note  to  sec- 
tion 1624,  Revised  Statutes,  article  14. 

Advances  of  public  money  are  prohibited  by 
section  3648,  Remed  Statutes;  and  such 
unauthorized  advances  are  punishable  as 
embezzlement  under  section  87,  Criminal 
Code,  act  of  March  4,  1909  (35  Stat.,  1109). 

A  disbursing  officer  who  fails  safely  to  keep 
public  moneys  in  his  care  is  guilty  of  em- 
bezzlement. (Sec.  88,  Criminal  Code,  act 
Mar.  4,  1909,  35  Stat.,  1105.  See  note  to 
sec.  1624,  R.  S.,  art.  14.) 

A  disbursing  officer  who  deposits  money  in  a 
bank  not  designated  as  a  depository  in 
accordance  with  sections  3620  and  3639, 
Revised  Statutes,  is  liable  with  his  sureties 
for  any  loss  that  may  arise  from  the  failure 
of  such  bank  (20  Op.  Atty.  Gen.,  24);  and 
his  conduct  in  depositing  public  money  in 
a  place  not  authonzed  by  law  is  punishable 
as  embezzlement  under  section  87,  Crimi- 
nal Code,  act  of  March  4,  1909  (35  Stat., 
1105) ;  and  the  conduct  of  the  banker  or  offi- 
cers of  the  bank  in  knowingly  recei\ing 
such  money  on  deposit  is  also  punishable 
as  embezzlement  by  section  96,  Criminal 
Code,  act  of  March  4,  1909  (35  Stat.,  1106). 

Disbursing  officers  are  prohibited  by  law  from 
exchanging  Government  funds  in  their 
control  for  other  funds,  with  certain  excep- 
tions. Head  of  department  is  required  im- 
mediately to  suspend  from  duty  any  dis- 
bursing officer  who  \'iolates  tliis  proliibi- 
tion,  and  make  report  to  the  President  to 
the  end  that  such  disbursing  officer  may  be 
promptly  removed  from  office  or  restored 
to  duty.  (Sees.  3639  and  3651,  R.S.)  And 
such  unauthorized  exchange  of  Govern- 
ment funds  is  punishable  as  embezzlement 
under  section  89,  Criminal  Code,  act  of 
March 4,  1909  (35  Stat.,  1105).  See  note  t<i 
section  1624,  Revised  Statutes,  article  14. 

Taking  receipt  for  larger  sum  than  paid  is 
punishable  as  embezzlement  under  sections 
86  and  95,  Criminal  Code,  act  of  March  4, 
1909  (35  Stat.,  1105,  1106). 

Trading  in  Federal  or  State  funds  is  punishable 
under  section  103,  Criminal  Code,  act  of 
March  4,  1909  (35  Stat.,  1107). 


210 


Executive  Departments.        Pt.  2.  REVISED  STATUTES. 


Sec.  176. 


Failure  in  rendering  accounts  as  provided  by 
law  is  punishable  as  embezzlement  by  sec- 
tion 90,  Criminal  Code,  actof  March 4, 1909 
(35  Stat.,  1105);  other  proceedings  against 
delinquent  officer  are  provided  for  by  sec- 
tions 3625-3638,  Revised  Statutes,  and  acta 
of  July  31, 1894  (28  Stat.,  206),  and  May  28, 
1896,  section  4  (29  Stat.,  179). 

Embezzlement  of  public  or  private  money  or 
property,  keeping  false  accounts,  or  making 
false  returns  shall  be  punished  by  fine  and 
imprisonment  by  any  court,  civil  or  mili- 
tary, having  jurisdiction.    (Sec.  5306,  R.  S.) 

All  moneys  received  by  any  officer  for  the 
United  States  must  be  promptly  paid  into 
the  Treasury,  without  deduction  (sec.  3617, 
R.  S.);  officers  violating  tliis  requirement 
shall  be  removed  from  office  and  forfeit 
moneys  withheld  (sec.  3619,  R.  S.);  and 
such  failure  to  deposit  public  money 
when  required  so  to  do  is  punishable  as  em- 
bezzlement. (Sec.  91,  Criminal  Code,  act 
Mar.  4,  1909,  35  Stat.,  1105.)  But  see  note 
to  section  236,  Revised  Statutes,  under 
"Set-Off." 

Any  officer  of  United  States  who  sells  for  a 
premium  any  Treasury  note  or  other  pubUc 
security  not  his  own  property,  without  ac- 
coiinting  for  such  premium,  shall  be  forth- 
with dismissed  from  office.  (Sec. 3652, R.  S.) 

Disbursing  officers  are  not  allowed  to  take  re- 
ceipts for  payments  by  check;  nor  dupli- 
cate receipts  for  cash  payments;  nor  to  re- 
quire a  receipt  in  advance  of  actual  pay- 
ments.    (Na\-y  Regs.,  1913,  art.  R-4303.) 

Disbursing  officers  are  not  allowed  to  pay  ex- 
pense connected  with  any  commission  or 
inquiry,  except  courts-martial  or  courts  of 
inquiry  in  the  mihtary  or  naval  service, 
unless  special  appropriation  therefor  la 
made  by  law.     (Sec.  3681,  R.  S.) 

No  money  can  be  paid  to  any  bonded  officer  as 
compensation  who  is  in  arrears  to  the  United 
States.     (Sec.  1766,  R.  S.) 

Upon  application  to  Court  of  Claims,  disbursing 
officers  may  be  relieved  of  responsibihty 
for  losses  incurred  without  fault  or  neglect 
on  their  part.  (Judicial  Code,  act  Mar.  3, 
1911,  sees.  145,  147,  36  Stat.,  1136,  1137.) 

Settlement  of  outstanding  checks  and  accounts 
of  disbursing  officers.  (See  sees.  306-310, 
R.  S.,  and  arts.  R-433  et  seq..  Navy  Regs. 
1913.) 

Lost  checks,  procedure  with  reference  to.  (See 
sees.  3646,  3647,  R.  S.;  act  Feb.  23,  1909, 
35  Stat.,  643,  and  art.  R-4337,  Navy  Regs., 
1913.) 

Laws  and  decisions  concerning  bonds — for 
complete  reference  to,  see  section  1383,  Re- 
vised Statutes,  and  note  thereto. 

The  President  is  authorized  to  increase  the 
sums  for  which  bonds  are  required  by  law 
of  all  naval  agents  and  other  officers  em- 
ployed in  the  disbursement  of  public 
money  under  direction  of  the  Navy  De- 
partment.    (Sec. 3639,  R.  S  ) 

It  is  expressly  provided  by  law  that  the  United 
States  shall  not  pay  any  part  of  the  pre- 
mium or  other  cost  of  furnishing  a  bond, 
required  by  law  or  otherwise,  of  any  officer 
or  employee  of  the  United  States.  (Act 
Aug.  5,  1909,  36  Stat.,  118,  125.) 


Guaranty  companies  may  be  accepted  as  sole 
surety  on  bonds.  (Act  Aug.  13, 1894,  sees.  1 
and  3,  28  Stat.,  279;  27  Op.  Atty.  Gen. ,627.) 

Historical  note. — It  appears  to  have  been 
originally  designed  that  no  demand  for  the  pay- 
ment of  money  by  the  United  States  should  be 
paid  until  a  claim  or  account  therefor  had  been 
audited  and  certified  by  the  accounting  officers. 
But  early  in  the  history  of  the  Government  a 
practice  grew  up,  without  express  authority  of 
law,  of  employing  agents  to  disburse  moneys 
appropriated  for  various  objects.  Subsequent- 
ly disbursing  officers  were  expressly  authorized 
by  statute  and  in  1853  were  provided  for  the 
several  departments.     (4  Comp.  Dec,  334.) 

Compensation  of  disbursing  officers. — 
The  disbursing  clerk  of  a  department  is  not  en- 
titled to  any  commission  over  and  above  the 
amount  of  liis  salary  for  keeping  and  disbursing 
the  funds  of  liis  department,  and  other  services 
enunaerated.     (10  Op.  Atty.  Gen.,  31.) 

This  section  does  not  authorize  the  hc^ad  of  a 
department  to  diminish  or  take  away  the  salary 
of  a  disbursing  clerk  as  fixed  by  another  pro- 
vision of  law.  (Dunwoody  v.  U.  S.,  143  U.  S., 
578;  22  Ct.  Cls.,  269.) 

Departmental  regulations  can  not  enlarge 
or  restrict  the  Liability  of  an  officer  on  his  bond. 
(Meads  v.  United  States,  81  Fed.  Rep.,  684.) 

The  expense  incurred  by  an  officer  in 
furnishing  bond  required  by  law  of  all  dis- 
bursing officers  of  the  Government  is  not  a 
proper  charge  against  the  Government,  even 
though  the  officer  serves  without  compensa- 
tion. (2  Comp.  Dec,  262;  U.  S.  v.  Van  Duzee, 
140  U.  S.,  171;  see  also  30  Op.  Atty.  Gen.,  129.) 

The  premium  allowed  to  be  charged  on 
bonds  of  disbursing  officers  is  limited  by  act 
of  August  5,  1909  (36  Stat.,  125).  This  act  does 
not  apply  to  bonds  of  acting  or  deputy  disburs- 
ing clerks.  (27  Op.  Atty.  Gen.,  624;  28  Op. 
Atty.  Gen.,  28.) 

A  bond  furnished  to  the  United  States 
by  the  disbursing  officer  in  a  department  takes 
effect  on  the  date  when  it  is  accepted  by  the 
Government.  (Moses  v.  United  States,  166  U. 
S.,  571.) 

Pay  of  disbursing  officer  may  commence 
prior  to  furnishing  bond — that  is,  upon  accept- 
ance of  appointment  or  entering  upon  duty — 
the  same  as  other  officers.  (16  Op.  Atty.  Gen., 
38;  U.  S.  V.  Eaton,  169  U.  S.,  346;  Glavey  v. 
U.  S.,  182  U.  S.,  595;  U.  S.  v.  Bradley,  10  Pet., 
343;  U.  S.  V.  Linn,  15  Pet.,  290.  But  see  note 
to  sec.  1383,  R.  S.,  and  21  Comp.  Dec,  49,  51.) 

The  failure  of  Congress  to  make  specific 
appropriation  for  the  salary  of  the  disbursing 
clerk  of  a  department  would  not  appear  to  be  an 
insuperable  objection  to  the  appointment  of 
such  clerk  in  view  of  this  section,  which  fixes 
the  total  compensation  of  such  appointee  until 
otherwise  provided  by  Congress.  (30  Op.  Atty. 
Gen.,  130.) 

The  head  of  a  department  has  power  to 
demand  a  bond  from  an  officer  appointed  to 
a  place  of  trust,  although  there  is  no  statutory 
authority  to  take  such  bond.  It  was  held  in 
United  States  v.  Tingey  (5  Pet.,  115)  that  the 
United  States  had  the  right  to  take  a  bond  to 
insure  the  faithful  performance  of  duty  on  the 
part  of  an  individual  or  officer  where  such  bond 
was  voluntarily  given  and  was  not  in  violation 


211 


Sec.  177. 


Pt.2.  REVISED  STATUTES.        Executive  Departments. 


of  any  provision  of  law;  but  that  no  officer  of 
the  Goveruraont  has  a  right,  under  color  of  his 
ollice,  to  require  from  any  subordinate  officer. 
as  a  condition  of  holding  office,  that  he  should 
execute  a  bond  "  with  a  condition  different 
from  that  prescribed  by  law."  The  power  of 
the  Goveriunent  to  take  bonds  in  cases  where 
not  required  by  any  law  or  regulation,  but  only 
by  direction  of  the  head  of  a  department,  was 
recognized  ag-ain  in  United  States  v.  Bradley 
(10  Pet.,  343, 359) .  The  term  "  voluntary  bond  " 
does  not  mean  that  it  must  have  been  offered 
and  pressed  upon  the  Government  when  never 
asked  for  or  demanded  by  it.  It  is  a  voluntary 
bond  wlien  it  is  not  demanded  by  any  particu- 
lar statute  or  regulation  based  thereon,  and 
when  it  is  not  exacted  in  violation  of  any  law 
or  valid  regulation  of  a  department.  The  Gov- 
ernment in  such  cases  has  the  right  to  demand 
a  bond,  in  the  al^sence  of  any  law;  but  can  not 
extort  a  bond  from  a  reluctant  officer  with  a 
condition  therein  contained  different  from  that 
which  a  statute  calls  for.  (Moses  v.  U.  S.,  166 
U.  S.,  571;  see  also  U.  S.  v.  Maurice,  2  Brock.,  96, 
26  Fed.  Cas.  No.  15747;  Jessupr.  U.  S.,  106  U.  S., 
147;  U.  S.  V.  Rogers,  28  P^ed.  Rep.,  607;  6  Op. 
Atty.  Gen.,  24;  and  see  note  to  sec.  1383, R.S.). 

The  authority  of  disbursing  oflB.cers  of 
executive  departments  to  make  payments 
is  restricted  to  the  payment  of  fixed  salaries, 
bills  for  supplies  purchased  and  approved,  and 
other  similar  demands  which  do  not  requne  for 
the  ascertainment  of  their  validity  the  exercise 
of  judicial  functions  in  weighing  e\idence  or  in 
the  application  of  general  principles  of  law. 
(4  Comp.  Dec,  336,  337.) 

Responsibility  of  disbursing  ofi&cers. — 
The  rule  that  the  Government  can  not  be  held 
responsible  for  the  mistakes  of  its  agents  in- 
cludes mistakes  of  law  as  well  as  mistakes  of 
fact,  where  made  by  disbursing  officers,  and  as 
to  such  officers  the  policy  of  the  Government 
has  been  to  acknowledge  no  payments  as  made 
on  its  behalf  save  those  whicn  were  authorized 
by  law.  If  a  disbursing  officer  makes  a  mistake 
of  law,  the  pa\Tnent  is  disallowed  when  his 
accountr^  come  in  for  settlement  and  charged 
to  him  as  if  the  money  were  still  in  his  hands. 
(McKee  v.  U.  S.,  12  Ct.  Cls.,  532,  explaining 
McElrath's  case,  12  Ct.  Cls.,  201.  See  further, 
note  to  sec.  236,  R.  S.) 

Disbursing  officers  can  avoid  responsibility 
by  applying  to  the  Comptroller  of  the  Treasury 
for  an  advance  decision  in  cases  where  they 
may  have  doubts.     (7  Comp.  Dec,  271.  t 

Sec.  177.  [Vacancies  in  head  of  Department;  how  temporarily  filled.]  In 
case  of  the  death,  resignation,  absence,  or  sickness  of  the  head  of  any  De- 
partment, the  first  or  sole  assistant  thereof  shall,  unless  otherwise  directed 
by  the  President,  as  provided  by  section  one  hundred  and  seventy-nine, 
perform  the  duties  of  such  head  until  a  successor  is  appointed,  or  such 
absence  or  sickness  shall  cease. — (23  July,  1868,  c.  227,  s.  1,  v.  15,  p.  168.) 


The  accounts  of  disbursing  officers  never 
being  closed,  the  accounting  officers  may  re- 
adjust their  accounts  at  any  time.  (Stevens  v. 
U.  S.,  41  Ct.  Cls.,  344.  See  further,  note  to  sec. 
236,  R.  S.) 

A  disbursing  officer  is  not  responsible  for 
illegal  payments  made  by  him  in  good  faith 
and  in  accordance  with  the  certificate  of  another 
officer  as  to  the  facts.  An  ajjpropriation  being 
under  the  control  of  the  head  of  a  department, 
it  is  within  the  latter's  power  to  prescribe  rules 
to  govern  the  disbursing  agent  in  making  dis- 
bursements therefrom.  (9  Comp.  Dec,  545; 
see  also  Maj.  Smith's  Case,  23  Ct.  Cls.,  452; 
21  Comp.  Dec,  314;  Comp.  Dec,  Nov.  21,  1914, 
file 26254-1672;  21  Comjj.  Dec,  357;  file  26251- 
1451:5,  Oct.  31,  1914;  file  26254-1451:11,  Apr. 
12,  1915;  Op.  Atty.  Gen.,  May  19,  1915,  171 
S.  and  A.  Memo.,  3611.) 

Under  ordinary  circumstances  it  is  the  duty 
of  a  disbursing  officer  to  pay  clerks  and  employ- 
ees as  set  out  on  the  properly  certified  pay  rolls 
presented  to  them  for  payment,  but  a  payment 
should  never  be  made  by  a  disbursing  officer 
untQ  properly  certified.  The  head  of  a  bureau, 
through  his  timekeeper  and  the  appointment 
division  of  his  department,  is  supposed  to  have 
the  information  upon  which  the  pay  rolls  are 
made  up,  and  is  necessarily  in  possession  of  the 
information  requisite  to  make  the  proper  certifi- 
cate thereto,  which  the  disbursing  officer  is  not, 
nor  can  he  be.  (8  Comp.  Dec,  776,  785;  see  also 
20  Comp.  Dec,  859.) 

For  other  cases  see  note  to  section  285, 
Revised  Statutes. 

Abolishing  the  position. — ^Tiere  the  posi- 
tion of  disbursing  clerk  in  a  bureau  was  estab- 
lished by  Congress,  and  has  since  been  regu- 
larly appropriated  for,  such  position  must  be 
regarded  as  essential  to  the  organization  of  the 
bureau  in  question,  and  until  Congress  other- 
wise provides,  it  would  be  "inconsistent  with 
law,"  within  the  meaning  of  section  161,  Re- 
vised Statutes,  for  the  head  of  the  department 
to  transfer  the  duties  formerly  performed  by 
such  disbursing  clerk  to  the  disbursing  clerk  of 
the  department  to  which  the  bureau  is  attached . 
(29  Op.  Atty.  Gen.,  247.) 

The  disbursing  clerk  of  one  department 
might  legally  be  designated  to  disburse 
moneys  for  another  department,  pending  the 
appointment  of  a  disbursing  clerk  as  authorized 
by  law  for  the  latter  department.  (30  Op.  Atty. 
Gen.,  131.) 


See  limitation  contained  in  section  180,  Re- 
vised Statutes. 

As  to  vacancy  in  office  of  Attorney  General,  or 
his  absence  or  disability,  see  section  347, 
Revised  Statutes. 

"Death,  resignation,  absence,  or  sickness." 
As  to  construction  of  these  words,  see  note 
to  section  179,  Revised  Statutes. 


In  case  of  the  absence  of  both  the  Secretary  and 
Assistant  Secretary  of  the  Navy,  ' '  the  Chief 
of  Naval  Operations  shall  be  next  in  suc- 
cession to  act  as  Secretary  of  the  Navy." 
(Act  Mar.  3,  1915,  38  Stat.,  929;  see  file 
22724-40,  Apr.  24,  1919.) 
Power  inherent  in  President. — The  power 

of  the  President  to  make  temporary  appoint- 


212 


Executive  Departments.        Pt.  2.  REVISED  STATUTES. 


Sec.  178. 


ment  in  all  such  cases  is  a  constitutional  one. 
The  power  was  exercised  by  the  President  in 
regard  to  the  heads  of  departments  in  cases  in 
which  the  law  was  silent.  In  the  most  ques- 
tionable of  the  cases,  that  of  Attorney  General, 
whose  quasi  judicial  functions  especially  would 
seem  to  require  to  stand  on  legislative  authority, 
proof  exists  in  the  files  of  the 'Department  of 
Justice  that  temporary  appointment  was  made 
by  the  President  prior  to  the  enactment  of 
statutory  authority  therefor.  But  a  general 
provision  of  law  is  desirable  to  remove  all 
doubt  on  the  subject.  (6  Op.  Atty.  Gen., 
351,  352.) 

There  can  be  no  question  that  the  President 
has  the  fundamental  right  as  Chief  Executive 
to  make  such  temporary  appointment,  designa- 
tion, or  assigmnent  of  one  oiBcer  to  perform  the 
duties  of  another  whenever  the  administration 
of  the  Government  requires  it;  otherwise  the 
Government  would  be  menaced  with  a  serious 
interruption  of  its  administration.  (25  Op. 
Atty.  Gen.,  258.  But  see  contra  27  Op.  Atty. 
Gen.,  344;seealso  28  Op.  Atty.  Gen.,  487; and 
see  note  to  sec.  1381,  R.  S.) 

Authority  of  assistant. — The  signature  of 
a  "first  or  sole  assistant"  as  the  acting  head  of 
a  department,  w-hen  attached  to  a  document  of 
that  department,  implies  that  one  of  the  con- 
ditions provided  in  section  177,  Revised  Stat- 
utes, which  authorizes  him  to  act  in  that  ca- 
pacity, had  arisen.  (Marsh  v.  Nichols,  128 
U.  S.,  615;  U.  S.  V.  Twining,  132  Fed.  Rep.,  129.) 

It  is  clear  that,  in  the  absence  of  the  head  of 
a  department,  the  authority  with  which  he  is 
invested  can  be  exercised  by  the  officer  who, 
under  the  law,  becomes  for  the  time  acting 
secretary.     (Ryan  v.  U.  S.,  136  U.  S.,  81.) 

Under  the  provisions  of  this  section  and  sec- 
tion 161,  Revised  Statutes,  the  head  of  a  depart- 
ment has  authority  to  assign  certain  of  his  duties 

Sec.  178.  [Vacancies  in  subordinate  offices.]  In  case  of  the  death,  resigna- 
tion, absence,  or  sickness  of  the  chief  of  any  Bureau,  or  of  any  officer  thereof 
whose  appointment  is  not  vested  in  the  head  of  the  Department,  the  assistant 
or  deputy  of  such  chief  or  of  such  officer,  or  if  there  be  none,  then  the  cliief  clerk 
of  such  Bureau,  shall,  unless  otherwise  directed  by  the  President,  as  provided 
by  section  one  hundred  and  seventy-nine,  perform  the  duties  of  such  chief  or  of 
such  officer  until  a  successor  is  appointed  or  such  absence  or  sickness  shall 
cease.— (23  July,  1868,  c.  227,  s.  2,  v.  15,  p.  168.) 


•  to  the  assistant  head  thereof,  and  in  the  absence 
or  sickness  of  the  head  of  a  department  such 
assistant  head  may  lawfully  perform  his  duties 
in  respect  to  such  matters  which  have  to  be 
determined,  settled,  and  adjudicated  in  that 
department.  And  it  not  appearing  to  the  con- 
trary, it  must  be  presumed  that  a  legitimate 
authority  existed  for  official  acts  performed  by 
the  assistant.  (Shillito  v.  McClung,  51  Fed. 
Rep.,  872;  Parish  ^;.  U.  S.,  100  U.  S.,  500;  U.  S. 
V.  Adams,  24  Fed.  Rep.,  348;  Chadwick  v.  U.  S., 
3  Fed.  Rep.,  756;  U.  S.  v.  Peralta,  19  How.,  347.) 
Where  the  assistant  head  of  a  department  per- 
forms a  duty  required  by  law  of  the  head  of  the 
department,  it  will  be  presumed,  in  the  ab- 
sence of  evidence  to  the  contrary,  that  he  was 
performing  a  duty  in  accordance  with  law. 
(P>anklin^Sugar  Refining  Co.  v.  U.  S.,  178  Fed. 
Rep.,  743.)  \\Tiere  an  appeal  was  heard  and 
decided  by  the  assistant  head  of  a  department, 
it  will  be  presumed,  the  contrary  not  appearing, 
that  the  Assistant  Secretary  was  lawfully  exer- 
cising the  Secretary's  powers,  as  he  was  author- 
ized to  do  by  this  section.  (In  re  Jem  Yuen, 
188  Fed.  Rep.,  350,  354;  see  U.  S.  v.  Redfem, 
180  Fed.  Rep.,  508;  and  see  note  to  sec.  178, 
R.  S.) 

So  long  as  the  powers  delegated  to  the  Assist- 
ant Secretary  by  his  superior  remain  unrevoked, 
the  authority  of  the  former  is  coordinate  and 
concurrent  with  that  of  the  latter.  When  the 
assistant  acts  at  a  time  the  Secretary  is  not 
absent  or  sick,  under  a  regulation  made  by  the 
Secretary  prescribing  his  powers  and  duties,  he 
should  sign  with  his  own  proper  official  desig- 
nation. When  the  Secretary  is  absent  or  sick, 
if  the  assistant  is  in  charge  of  the  department 
in  pursuance  of  sections  177  or  179,  Revised 
Statutes,  he  should  sign  as  Acting  Secretary. 
(19  Op.  Atty.  Gen.,  133.) 


See  limitation  contained  in  section  180,  Re- 
vised Statutes. 
"Death,   resignation,    absence,    or  sickness." 
As  to  construction  of  these  words,  see  note 
to  section  179,  Revised  Statutes. 
The  courts  take  judicial  notice   of  the 
fact  that  a  deputy  or  assistant  to  a  public  officer, 
in  a  particular  case,  is  provided  for  by  law,  and 
that  such  deputy  or  assistant  may  exercise  the 
powers  and  discharge  the  duties  attached  to  the 
office  during  a  vacancy  in  that  office,  or  during 
the  absence  or  inability  of  his  superior.     Where 
such  deputy  or  assistant  signed  as  "acting"  a 
document  required  by  statute  to  be  signed  by 
his  superior,  it  will  be  presumed  that  at  the  date 
he  so  signed  he  was  authorized  to  exercise  the 
powers  and  discharge  the  duties  of  the  office 


and  was  therefore  at  the  time 


acting 


as  such 


officer.  (Keyser  v.  Hitz,  133  U.  S.,  138,  145.) 
For  other  cases  see  note  to  section  177,  Re- 
vised Statutes. 

The  words  "the  assistant  or  deputy  of 
such  chief  or  of  such  officer,"  and  "the 
chief  clerk  of  such  Bureau,"  in  this  section, 
can  only  refer  to  assistants  or  deputies  and  chief 
clerks  whose  appointment  is  specifically  pro- 
vided for  by  statute.  Accordingly,  an  officer 
of  the  Navy  detailed  by  the  Secretary  of  the 
Navy  as  assistant  to  the  chief  of  a  bureau  in  the 
Navy  Department  is  not,  in  the  absence  of  a 
statute  making  provision  for  such  assistant, 
authorized  to  perform  the  duties  of  the  chief  in 
case  of  a  vacancy  or  the  absence  or  sickness  of 
his  superior.  This  section  must  be  read  in  con- 
nection with  laws  providing  for  the  establish- 
ment of  the  Department  of  the  Navy,  and  spe- 


213 


Sec.  179. 


Pt.  2.  REVISED  STATUTES.        Executive  Departments. 


cifically  authorizins;  chief  clerks  and  assistants 
in  certain  bureaus.  (19  Op.  Atty.  Gen.,  503;  28 
Op.  Atty.  Gen..  05.) 

Assistants  to  chiefs  of  bureaus  in  the 
Navy  Department  are  specifically  provided 
for  by  the  following  laws:  Bureau  of  Naviga- 
tion, "act  of  March  3, 1893  (27  Stat.,  717);  Bureau 
of  Supplies  and  Accounts,  act  of  Julv  26,  1894 
(2S  Stat.,  132);  February  25, 1903  (32  Stat.,  890); 
Bureau  of  Ordnance,  act  of  May  4,  1898  (30 
Stat.,  373);  Bureau  of  Steam  Engineering,  act 
of  March  3,  1905  (33  Stat.,  1111);  Bureau  of 
Yards  and  Docks,  Bureau  of  Construction  and 
Repair,  and  .Tudce  Advocate  General,  act  of 
August  29,  1916,  39  Stat.,  558.  In  all  of  these 
cases  the  laws  cited  specifically  provide  that  the 
assistant  shall  perform  the  duties  of  the  chief  of 
the  bureau  in  the  latter's  absence.  An  assistant 
to  the  Chief  of  the  Bureau  of  Medicine  and  Sur- 
gery is  authorized  by  section  1375,  Revised 
Statutes;    that  section  does  not  contain  any 

S revision  that  such  assistant  shall  perform  the 
uties  of  the  chief  of  the  bureau  in  the  latter's 
absence,  but  he  is  an  "assistant"  specifically 
provided  for  by  law  and  therefore  authorized 
to  act  as  Chief  of  the  Bureau  of  Medicine  and 
Surgery  in  accordance  with  the  provisions  of 
section  178,  Revised  Statutes,  and  the  Attorney 
General's  opinion  above  cited  (19  Op.  Attv. 
Gen.,  503).  The  detail  of  "not  less  than  fifteen 
officers  of  and  above  the  rank  of  lieutenant 
commander  of  the  Navy  or  major  of  the  Marine 
Corps,"  to  "assist  the  Chief  of  Naval  Opera-    I 

Sec.  179.  [Vacancies,  authority  of  President  to  fill  temporarily.]  In  any  of 
the  cases  mentioned  in  the  two  preceding  sections,  except  the  death,  resignation, 
absence,  or  sickness  of  the  Attorney-General,  the  President  may,  in  his  discre- 
tion, authorize  and  direct  the  head  of  any  other  Department  or  any  other 
ofTicer  in  either  Department,  whose  appointment  is  vested  in  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate,  to  perform  the  duties  of 
the  vacant  oflice  until  a  successor  is  appointed,  or  the  sickness  or  absence  of 
the  incumbent  shall  cease. — (23  July,  1868,  c.  227,  s.  3,  v.  15,  p.  168;  22  June, 
1870,  c.  150,  s.  2,  V.  16,  p.  162.) 


tions  in  performing  the  dudes  of  his  office," 
was  authorized  by  act  of  August  29,  1916  (39 
Stat.,  558;  see  file  22724-40,  Apr.  24,  1919.) 

In  bureaus  of  the  Navy  Department  where  as- 
sistants are  not  specifically  provided  for  by  law, 
officers  of  the  Navy  detailed  to  duty  as  assist- 
ants to  the  chiqfs  of  such  bureaus  are  not  author- 
ized to  perform  the  duties  of  their  chief  in  case 
of  the  latter's  absence  or  sickness.  "Without 
making  a  question  that  the  assignment  of  com- 
missioned officers  of  the  Navy  to  act  as  assist- 
ants to  chiefs  of  bureaus  may  be  within  the  gen- 
eral powers  of  the  Secretary  of  the  Navy,  I 
think  that  section  178  can  only  refer  to  assistants 
or  deputies  whose  appointment  is  specifically 
provided  for  by  statute."  (19  Op.  Atty.  Gen., 
503.)  Accordingly,  in  such  cases  the  chief  clerk 
of  the  bureau  becomes  acting  chief  thereof  in 
case  of  the  latter's  absence  or  sickness,  unless 
otherwise  directed  by  the  President  inider 
section  179,  Revised  Statutes.  (File  22724-14, 
Dec.  17,  1909.) 

In  certain  offices  of  the  Navy  Depart- 
ment, as,  for  example,  the  office  of  the  Judge 
Advocate  General,  when  there  was  neither  an 
"assistant"  nor  "chief  clerk"  specifically  pro- 
vided for  by  law,  the  Secretary  of  the  Navy 
designated  officers  of  the  Navy  or  Marine  Corps 
on  duty  in  the  office  to  perform  the  duty  of  the 
head  of  the  office  in  the  latter's  absence.  (File 
22724-26.)  See  note  to  section  179,  Revised 
Statutes. 


As  to  vacancy  in  the  office  of  Attorney  Gen- 
eral, or  his  absence  or   sickness,  see  sec- 
tion 347,  Revised  Statutes. 
The  Commanding  General  of  the  Army  or  the 
chief  of  any  military  bureau  of  the  War  De- 
partment may  be  assigned  to  perform  the 
duties  of  the  Secretary  of  War,  under  this 
section.     (Act  Aug.  5,'  1882;  22  Stat.,  238.) 
[It  had  previously  been  held  by  the  Attor- 
ney General  that  such  assignment  could 
not  be  made,  because  of  a  law  forbidding 
officers  of  the  Army  to  hold  any  civil  office, 
either    by   election  or  appointment.     (14 
Op,  Atty.  Gen.,  200.)] 
In   the   absence   of   the    Secretary   and 
Assistant  Secretary  of  the  Navy,  and  the 
Chief  of   Naval  Operations,  the    President 
has  directed  that,  "until  further  orders,"  the 
duties  of  the  Secretary  of  the  Navy  shall  be  per- 
formed by  the  following  designated  persons,  in 
the  order  named:  The  Chief  of  the  Bureaii  of 
Navigation ;  in  his  absence,  the  Chief  of  the  Bu- 
reau of  Ordnance;  and  in  the  absence  of  those 
two,  the  Chief  of  the  Bureau  of  Engineering. 


(File  1159-765,  Bu.  Nav.;  Navy  Regs.,  1920, 
art.  392,  as  amended;  see  also  file  22724-40, 
Apr.  24,  1919.) 

By  act  of  March  3,  1915  (38  Stat.,  929),  the 
Chief  of  Naval  Operations  "shall  be  next  in 
succession  to  act  as  Secretary  of  the  Navy" 
during  the  temporary  absence  of  the  Secretary 
and  the  Assistant  Secretary. 

Authority  of  Acting  Secretary. — It  is 
clear  that,  in  the  absence  of  the  Secretary,  the 
authoi'ity  with  which  he  is  invested  can  be  ex- 
ercised by  the  officer  who,  under  this  section, 
becomes  for  the  time  Acting  Secretary.  (Ryan 
V.  U.  S.,  136  U.  S.,  81;  Shillito  v.  McClung,  51 
Fed.  Rep.,  871;  20  Comp.  Dec,  11.  See  note 
to  sec.  177,  R.  S.) 

"Death,  resignation,  absence,  or  sick- 
ness."— The  word  "death"  requires  no  defi- 
nition, and  the  word  "sickness"  has  received 
none  under  this  law.  As  to  the  word  ' '  absence  " 
the  decisions  are  not  harmonious.  The  Attor- 
ney General's  opinions  are  both  ways  upon  the 
question  whether  a  vacancy  caused  by  retire- 
ment is  due  to  "absence,"  the  later  opinions 


214 


Executive  Departments.        Pt.  2.  REVISED  STATUTES. 


Sec.  179. 


holdiBg  that  it  is  not.  An  interruption  of  busi- 
ness caused  by  suspension  of  an  officer  is  due  to 
absence,  according  to  the  Attorney  General, 
although  Congress,  in  section  1768,  Revised 
Statutes  (now  repealed),  made  specific  provi- 
sion for  such  cases,  so  that  they  were  not  gov- 
erned by  section  179,  Revised  Statutes.  The 
cases  on  this  subject  are  as  follows: 

A  vacancy  canned  by  the  retirement  of  the 
Paymaster  General  of  the  Army  may  be  tempo- 
rarily filled  Tuider  this  section.  It  may  well  be 
said  that  in  the  eye  of  the  law  a  retired  officer  is 
"absent,"  he  being  incapable  of  rendering  the 
service  required.  If  tliis  construction  maj^  not 
be  given  to  the  act,  it  is  clearly  casus  omissus 
[a  case  which  is  not  provided  for]".  There  would 
in  that  event  be  no  power  to  provide  for  the 
duties  of  the  office  ad  interim.  (19  Op.  Atty. 
Gen.,  500.) 

In  a  later  opinion,  the  Attorney  General  held 
that  no  pro^'ision  is  made  by  this  section  for 
filling  a  vacancy  caused  by  retirement,  and 
that,  upon  the  retirement  of  the  Chief  of  the 
Bureau  of  Steam  Engineering  in  the  Navy  De- 
partment, the  President  was  not  authorized  to 
designate  the  Chief  of  the  Bureau  of  Construc- 
tion and  Repair  as  Acting  Chief  of  the  Bureau  of 
Steam  Engineering;  that  Congress  had  made  no 
p^o^•ision  for  the  temporary  discharge  of  his 
duties,  and  accordingly  the  Bureau  of  Steam 
Engineering  must  remain  without  a  head  imtil 
the  place  should  be  filled  by  new  appomtment 
pursuant  to  sections  421  and  424,  Revised 
Statutes;  that  "absence"  implies  a  temporary 
state  of  being  away  from  the  office  and  a  pos- 
sibility of  returning,  which  is  entirely  incon- 
sistent with  the  idea  of  retirement  for  ph^-sical 
incapacity,  which  is  a  permanent  condition. 
(27  Op.  Atty.  Gen.,  344.)  In  this  later  opinion 
no  reference  is  made  to  the  former  opinion  with 
which  it  is  in  conflict  and  which  was  apparently 
overlooked .  As  to  inherent  power  of  the  Presi- 
dent in  such  cases,  see  note  to  sec.  177, 
R.  S.) 

Again,  the  Attorney  General  held  that,  aside 
from  the  question  v\-hether  the  Marine  Corps  can 
be  regarded  as  a  bureau  of  the  Navy  Depart- 
ment, sections  177,  179,  and  180,  Revised 
Statutes,  hav?  no  application  in  the  case  of  the 
retirement  of  the  Commandant  of  the  Marine 
Corps  on  accoimt  of  age,  as  the  vacancy  in  such 
case  does  not  result  from  "death,  resignation, 
absence,  or  sickness"  of  the  incumbent.  (28 
Op.  Atty.  Gen.,  487.) 

In  case  of  the  suspension  of  an  officer  during  a 
recess  of  the  Senate,  the  President  was 
authorized,  imder  section  1768,  Revised  Stat- 
utes (now  repealed),  to  designate  "some  suit- 
able person,"  to  perform  the  duties  of  the  sus- 
pended officer  until  the  end  of  the  next  session 
of  the  Senate.  The  suspension  of  an  officer  did 
not  create  a  vacancy,  as  the  suspended  officer 
continued  to  hold  the  office,  although  not  enti- 
tled to  pay  under  section  1768,  Revised  Stat- 
utes. The  word  "suspended  "  imports  that  the 
person  suspended  is  still  the  incumbent  of  the 
office;  that  the  interruption  of  his  performance 
of  its  duties  is  temporary  and  provisional. 
Temporary  designation  of  an  acting  officer 
in  this  case  was  properly  made  under  section 
1768,  Revised  Statutes.  (13  Op.  Atty.  Gen., 
512.) 


The  Judge  Advocate  General  of  the  Army  was 

suspended  from  rank  and  duty  pursuant  to  sen- 
tence of  a  general  court-martial.  (Swaim  v. 
U.  S.,  165  U.  S.,  554.)  The  Secretary  of  War, 
July  25, 1884,  by  direction  of  the  President,  des- 
ignated the  senior  Assistant  Judge  Advocate 
General  to ' '  take  charge  of  the  office  of  the  Judge 
Advocate  General  and  perform  his  duties"  dur- 
ing the  suspension  of  the  Judge  Advocate  Gen- 
eral. Under  this  order  the  Assistant  Judge 
Advocate  General  became  "Acting  Judge  Ad- 
vocate General  of  the  Army  "  from  July  25,  1884, 
toJanuarj'3, 1895.  (See  Dig.,  J.  A.  G.,  Army, 
1912,  p.  4.)  The  Attorney  General  held  that 
"the  order  assigning  Col.  I.ieber  to  duty  as  Act- 
ing Judge  Advocate  General  was  made  in  pur- 
suance of  section  179  of  the  Revised  Statutes," 
and  that  as  such  Acting  JudgeAdvocate  General 
he  was  qualified  to  act  as  a  member  of  the  Board 
of  Commissioners  of  the  Soldiers'  Home,  imder 
the  law  which  provided  that  said  board  should 
include  in  its  membership  "the  Judge  Advo- 
cate General."     (20  Op.  Atty.  Gen., 483.) 

"Resignation'^  of  an  office  implies  the  con- 
sent of  the  incumbent  to  the  giving  up  of  the 
office  and  does  not  include  the  compulsory  re- 
tirement of  an  officer  by  reason  of  disability  to 
perform  the  duties  of  the  office.  (27  Op.  Atty. 
Gen.,  337.) 

The  words  "any  other  officer  in  either 
Department,"  apply  only  to  an  officer  who 
holds  a  position  in  the  Department  to  which  he 
has  been  appointed  by  the  President  by  and 
with  the  advice  and  consent  of  the  Senate.  Ac- 
cordingly, these  words  do  not  embrace  an  offi- 
cer of  the  Navy  detailed  to  duty  in  the  Navy 
Department,  because  such  officer,  although  ap- 
pointed to  his  grade  in  the  Navy  by  and  with 
the  advice  and  consent  of  the  Senate,  does  not 
hold  any  office  in  the  department  to  which  he 
has  been  so  appointed .  Such  an  officer  can  not, 
therefore,  be  assigned  by  the  President  to  per- 
form the  duties  of  the  Secretary  of  the  Navy  or 
the  chief  of  a  biu-eau  in  the  Navy  Department 
during  the  temporary  absence  of  the  officials 
mentioned.  (28  Op.  Atty.  Gen.,  95.)  See  note 
to  section  178,  Revised  Statutes. 

The  holder  of  an  office  vacates  it  by  the 
acceptance  of  another  iucompatible  office.  He 
does  not  vacate  it  by  temporarily  performing 
the  duties  of  another  office,  when  such  tempo- 
rarv  performance  is  permitted  by  law.  (13  Op. 
Atty.  Gen.,  512.  But  see  14  Op.  Atty.  Gen. ,200, 
holding  that  the  Commanding  General  of  the 
Army  could  not,  under  laws  then  in  force,  act 
as  Secretary  of  War  without  vacating  his  com- 
mission.) 

Power  of  Secretary  to  perform  duties 
of  subordinate. — In  any  case  where  a  vacancy 
exists  in  a  subordinate  position  under  the  Secre- 
tary of  the  Navy,  the  Secretary  has  the  power 
to  perform  the  duties  of  said  position  until  the 
vacancy  is  filled.  In  such  a  case  the  Secretary 
must  sign  all  papers  in  person,  and  can  not  dele- 
gate general  authority  to  another  to  perform  the 
duties  of  the  office  and  sign  papers  "By  direc- 
tion of  the  Secretary  of  the  Navy."  So  held 
with  reference  to  vacancy  existing  in  the  posi- 
tion of  Commandant  of  the  Marine  Corps.  (28 
Op.  Atty.  Gen.,  487.  Compare  Williams  Eng. 
and  Cont.  Co.  v.  U.  S.,  55  Ct.  Cls.,  349,  noted 
under  sec.  419,  R.  S.) 


215 


Sec.  181. 


Pt.2.  REVISED  STATUTES.        Executive  Departments. 

Sec.  180.  [Temporary  appointments  limited  to  thirty  days.]  A  vacancy 
occasioned  by  death  or  resi»,aiation  must  not  be  temporarily  filled  under  the 
three  preceding  sections  for  a  longer  period  than  thirty  days. — (23  July,  1868, 
c.  227,  s.  3,  V.  15,  p.  1G8.) 


This  section  was  amended  to  read  as  above  by 
act  of  February  6,  1891,  section  91  (26  Stat. 
733),  which  act  substituted  the  word 
"thirty"  for  the  word  "ten"  which 
appeared  in  the  original  section. 
President  can  not  make  second  designa- 
tion on  expiration  of  first. — In  a  case  in 
which  tlie  Secretary  of  War  was  designated  by 
the  President  to  act  as  Secretary  of  the  Navy 
under  the  provisions  of  sections  177-180,  Re- 
vised Statutes,  it  was  held  that  upon  the  expi- 
ration of  the  period  fixed  by  this  section  it  was 
not  in  the  power  of  the  President  to  designate 
another  officer  or  the  same  officer  to  act  for  an 
additional  period;  that  when  the  vacancy  was 
once  temporarily  filled  for  the  statutory  period 
the  power  conferred  by  the  statute  is  exhausted, 
and  the  President  is  remitted  to  his  constitu- 
tional power  of  appointment;  and  that  no  such 
appointment  having  been  made,  "there  is  and 
can  be  no  person  authorized  by  designation  to 
sign  requisitions  upon  the  Treasury  Department 
on  account  of  Navy  payments  as  Acting  Secre- 
tarv  of  the  Navy.'"  (16  Op.  Atty.  Gen.,  596; 
affirmed  17  Op.  Atty.  Gen.,  530,  18  Op.  Atty. 
Gen.,  58.) 

Purpose  of  section. — The  temporary  term 
authorized  by  sections  178  and  180,  either  by 
mere  operation  of  the  statute  or  by  action  of  the 
President,  is  for  no  longer  period  than  that 
limited  by  this  section.  The  theory  seems  to 
be,  and  very  properly,  that  the  department 
has  no  more  than  a  sufficiency  of  officers  to 
transact  the  public  business  properly;  and 
therefore,  that  in  case  of  death  or  resignation 
this  normal  equipment  is  to  be  restored  within 
the  brief  period  named.  (18  Op.  Atty.  Gen. ,50.) 
Computed  from  date  of  President's  ac- 
tion.— The  limitation  imposed  by  this  section 
upon  the  temporary  filling  of  vacancies  occa- 
sioned by  death  or  resignation  is  to  be  com- 
puted from  the  date  of  the  President's  action. 
Where  the  officer  appointed  to  act  performed 
the  duties  of  the  vacant  office  prior  to  his  des- 
ignation by  the  President,  he  was  not  acting 
under  authority  of  sections  178-180,  Revised 
Statutes,  and  such  period  during  which  he  was 
acting  without  authority  of  these  sections  is  not 
to  be  counted  in  computing  the  time  during 
which  his  temporary  appointment  by  the  Presi- 
dent has  force.  [In  this  case  the  officer  was  not 
the  "assistant  or  deputy,"  and  therefore  did  not 
succeed  to  the  vacancy  by  operation  of  section 
178,  Revised  Statutes.]  (15 Op.  Atty.  Gen.,  457.) 
Vacancy  can  not  be  filled  by  operation  of 
law  and  then  by  designation  of  President 
in  excess  of  30  days. — Where  an  officer 
succeeds  to  a  vacancy  by  operation  of  section 
177  or  178,  Re\dsed  Statutes,  and  performs  the 
duties  of  the  vacant  office  during  the  full  period 


prescribed  by  this  section,  the  President  can 
not  thereafter  designate  the  same  or  a  different 
officer  to  perform  the  duties  of  the  vacant  office 
during  an  additional  period  of  30  days,  under 
authority  of  section  179,  Revised  Statutes;  but 
the  total  period  for  which  the  vacancy  can  be 
temporarily  filled  under  these  sections,  either 
by  operation  of.  law  or  by  designation  of  the 
President,  is  30  days.  The  legislative  purpose 
was  that  a  vacancy  caused  by  death  or  resigna- 
tion shall  be  permanently  filled  by  constitu- 
tional appointment  within  30  days.  It  may  be 
tliat  the  action  of  an  assistant  after  the  expira- 
tion of  the  statutory  period  would  not  be 
invalid,  being  the  action  of  an  officer  de  facto; 
but  the  statute,  even  if  directory,  is  no  less 
obligatory  upon  those  called  upon  to  act  under 
it  than  if  mandatory,  although  the  legal  effect 
of  action  or  nonaction  under  a  directory  stat- 
ute may  be  very  different  from  the  effect 
under  a  mandatory  statute.  (20  Op.  Atty.  Gen., 
8,  reversing  17  Op.  Atty.  Gen.,  535.)  [Note:  In 
the  case  of  a  "mandatory"  statute,  all  acts 
done  in  violation  of  its  terms  are  absolutely 
null  and  void;  while  in  the  case  of  a  "direc- 
tory" statute,  acts  performed  contrary  to  its 
terms  may  be  valid,  although  the  officer  guilty 
of  violating  the  statute  may  otherwise  be  held 
responsible  therefor.  With  reference  to  direc- 
tory statutes,  it  was  said  by  Mr.  Justice  Field, 
in  French  v.  Edwards,  13  Wall.,  511:  "There 
are  undoubtedly  many  statutory  requisitions 
intended  for  the  guide  of  officers  in  the  conduct 
of  business  devolved  upon  them  which  do  not 
limit  their  power  or  render  its  exercise  in  dis. 
regard  of  the  requisitions  ineffectual.  Such 
generally  are  regulations  designed  to  secure 
order,  system,  and  dispatch  in  proceedings,  and 
by  a  disregard  of  which  the  rights  of  parties 
interested  can  not  be  injuriously  affected."] 

Vacancy  occurring  during  recess  of  the 
Senate. — The  limitation  contained  in  this  sec- 
tion applies  only  to  temporary  appointments 
made  while  the  Senate  is  in  session.  It  appears 
from  an  examination  of  the  Journals  of  Congress 
that  the  Senate  was  in  session  when  the  vacan- 
cies referred  to  in  Mr.  Devens's  opinions  occurred  . 
(15  Op.  Atty.  Gen.,  458;  16  Op.  Atty.  Gen.,  596), 
and  presumably  in  the  case  presented  to  Mr. 
Brewster  (17  Op.  Atty.  Gen.,  530)._  The  ab- 
sence of  any  reference  in  those  opinions  to  the 
excepting  clause  of  section  181,  Revised  Stat- 
utes, would  seem  to  place  it  entirely  beyond 
doubt  that  the  sections  referred  to  were  not 
being  construed  with  reference  to  vacancies 
occurring  during  a  recess  of  the  Senate.  In  the 
latter  case  the  temporary  appointment,  desig- 
nation, or  assignment  is  not  limited  by  law  to 
any  particular  period.  (25  Op.  Atty.  Gen.,  258. 
See  note  to  sec.  181,  R.  S.) 


Sec.  181.  [Restriction  on  temporary  appointments.]  No  temporary  appomt- 
ment,  designation,  or  assignment  of  one  officer  to  perform  the  duties  of  another, 
in  the  cases  covered  by  sections  one  hundred  and  seventy-seven  and  one  hun- 


216 


Executive  Departments.        Ft.  2.  REVISED  STATUTES. 


Sec.  183. 


dred  and  seventy-eight,  shall  be  made  otherwise  than  as  provided  by  those 
sections,  except  to  fill  a  vacancy  happening  durmg  a  recess  of  the  Senate. — (23 
July,  1868,  c.  227,  s.  2,  v.  15,  p.  168.) 


"The  President  shall  have  power  to  fill  up  all 
vacancies  that  may  happen  during  the  re- 
cess of  the  Senate,  by  granting  commissions 
which  shall  expire  at  the  end  of  their  next 
session."  (Const.,  Art.  II,  sec.  2,  clause  3.) 
Senate  temporarily  adjourned. — It  was 
held  by  the  Court  of  Claims,  :May  26,  1884,  that 
there  was  "no  doubt "  that  a  vacancy  occurring 
while  the  Senate  was  temporarily  adjourned 
could  be  and  was  legally  filled  by  appointment 
of  the  President  in  accordance  with  the  above 
pro\dsion  of  the  Constitution  and  that  the  ap- 
pointee legally  held  the  oflice  until  he  was  noti- 
fied of  his  refection  by  the  Senate  at  its  next 
regular  session  established  by  law,  which  began 
on  the  first  Monday  of  the  following  December. 
(Gould  V.  U.  S.,  19  Ct.  Cls.,  593,  595.)  The  At- 
torney General  thereafter,  December  24,  1901, 
expressly  dissented  from  the  Court  of  Claims 
decision,  and  advised  the  President  that  a 
vacancy  occurriag  during  a  temporary  adjourn- 
ment of  the  Senate  could  not  be  filled  by  him 
as  a  "recess"  appointment,  but  that  such  ap- 
pointments could  be  made  only  when  the 
Senate  adjourned  sine  die.  C23  Op.  Atty.  Gen., 
599;  affirmed  29  Op.  Attv.  Gen.,  602.;  but  see 
33  Op.  Atty.  Gen.,  20.) 

A  temporary  appointment  during  a  re- 
cess of  the  Senate  need  not  be  made  in  any 
prescribed  form.  A  communication  from  the 
Secretary  of  War  informing  the  recipient  that 
he  has  been  appointed  an  officer  of  the  Army 
by  the  President  is  sufficient,  and  answers 
the  purpose  of  a  commission  if  a  commission 
is  necessary.  (O'Shea  v.  U.  S.,  28  Ct.  Cls.,  392.) 
The  President  has  the  right  under  the 
Constitution,  and  impliedly  under  section 
181,  Revised  Statutes,  to  make  a  temporary 
appointment,  designation,  or  assignment  of  one 
officer  to  perform  the  duties  of  another  in  the 

Sec.  182.  [Extra  compensation  disallowed.]  An  officer  performing  the 
duties  of  another  office,  during  a  vacancy,  as  authorized  by  sections  one  hundred 
and  seventy-seven,  one  hundred  and  seventy-eight,  and  one  hundred  and 
seventy-nine,  is  not  by  reason  thereof  entitled  to  any  other  compensation  than 
that  attached  to  his  proper  office. — (23  July,  1868,  c.  227,  s.  3,  v.  15,  p.  168.) 


case  of  a  vacancy  caused  by  death,  disabihty, 
or  otherwise  during  the  recess  of  the  Senate, 
and  such  temporary  appointment,  designation, 
or  assignment  is  not  limited  by  law  to  any  par- 
ticular period.  The  excepting  clause  in  sec- 
tion 181  makes  it  clear  that  Congress  only  in- 
tended by  the  provisions  in  question  to  restrict 
the  power  of  the  President  temporarily  to  ap- 
point, designate,  or  assign  one  officer  to  perform 
the  duties  of  another  in  the  case  of  vacancies 
happening  while  the  Senate  was  in  session,  the 
reason  for  which  is  manifest,  and  to  leave  un- 
restricted not  only  the  President's  constitu- 
tional right  to  fill  vacancies  happening  during 
a  recess  of  the  Senate  by  granting  commissions 
which  shall  expire  at  the  end  of  the  next  session, 
but  his  fundamental  right  as  Chief  Executive 
to  make  such  a  temporary  appointment,  desig- 
nation, or  assignment  of  one  officer  to  perform 
the  duties  of  another  whenever  the  administra- 
tion of  the  Government  requires  it.  There  can 
be  no  question  as  to  the  existence  of  such  right. 
It  could  not  have  been  the  purpose  of  the  Con- 
stitution to  compel  the  President  to  act  imme- 
diately upon  the  occurrence  of  the  vacancy. 
That  would  frequently  be  impossible,  and  if 
such  were  the  rule,  and  no  other  officer  could  act 
until  a  successor  was  appointed,  the  Govern- 
ment would  be  menaced  with  a  serious  inter- 
ruption of  its  administration.  The  opinions  of 
Attorneys  General  Devens  and  Brewster  (15 
Op.  Atty.  Gen.,  458;  16  Op.  Atty.  Gen.,  596; 
17  Op.  Atty.  Gen.,  530;  noted  under  sec.  180, 
R.  S.)  were  not  rendered  with  reference  to 
vacancies  occurring  during  a  recess  of  the 
Senate.     (25  Op.  Atty.  Gen.,  258.) 

For  other  decisions  see  note  to  Constitu- 
tion, Article  II,  section  2,  clause  3,  and  to  sec- 
tion 1381,  Re\dsed  Statutes. 


The  prohibition  in  this  section  against 
additional  compensation  was  designed  to  be 
general  and  to  apply  to  ever\'  officer  performing 
the  duties  of  an  office  temporarily  vacant, 
whether  the  vacancy  was  caused  by  death, 
resignation,  absence,  or  sickness,  and  whether 


such  duties  devolved  upon  him  by  force  of  the 
statute  or  by  designation  of  the  President,  and 
such  officer  is  not  entitled  to  any  salarj-  other 
than  that  which  is  annexed  to  the  office  he 
holds.  (13  Op.  Atty.  Gen.,  8;  13  Op.  Atty.  Gen., 
512,  514.) 


Sec.  183.  [Oaths,  when  administered  by  officers,  etc.]  Any  officer  or  clerk 
of  any  of  the  departments  lawfulh'  detailed  to  investigate  frauds  on,  or  attempts 
to  defraud,  the  Government,  or  any  irregularity  or  misconduct  of  any  officer  or 
agent  of  the  United  States,  and  any  officer  of  the  Army,  Navy,  Marine  Corps 
or  Revenue-Cutter  Service,  detailed  to  conduct  an  investigation,  and  the 
recorder,  and  if  there  be  none  the  presiding  officer,  of  any  military,  naval,  or 


217 


Sec.  183. 


rt.2.  REVISED  STATUTES.        Executive  Departments. 


Revenue-Cutter  Service  board  appointed  for  such  purpose,  shall  have  authority 
to  administer  an  oath  to  any  witness  attending  to  testify  or  depose  in  the  course 
of  such  investigation. 

This  section  was  amended  and  reenacted  to 

read  as  above  by  act  of  P'ebruary  13,  1911 

(36  Stat.,  898),  which  act  also  superseded 

the  act  of  March  2,  1901  (31  Stat.,  951). 
Ae  originally  enacted  this  section  provided  as 

follows:     "Sec.  183.  xVny  officer  or  clerk  of 

any  of  the  departments  lawfully  detailed 

to  investigate  frauds  or  attempt  to  defraud 

on  the  Government,  or  any  irregularity  or 

misconduct  of  any  officer  or  agent  of  the 

United  States,  shall  have  authority  to  ad- 
minister an  oath  to  any  witness  attending 

to  testify  or  depose  in  the  course  of  such 

investigation."— (10  Apr.,  1869,  Res.  No. 

15,  8.  2,  v.  16,  p.  55;   7  Mar.,  1870,  c.  23,  v. 

16,  p.  75.) 
The  "Revenue  Cutter  Service"  is  now  the 

"Coast  Guard."  (Act  Jan.  28,  1915,  38 
Stat.,  800.) 

The  solicitor  in  the  ofla.ce  of  the  Judge 
Advocate  General,  Navy  Department,  was 
detailed  by  the  Secretary  of  the  Navy,  May  2, 
1907  (file  5421-11),  to  investigate  reported  dis- 
crimination against  marines  in  uniform  visiting 
the  Library  of  Congress,  and  was  authorized 
to  administer  oaths  to  witnesses  under  this 
section.     See  also  file  26263. 

A  lieutenant  commander  in  the  Navy 
was  detailed  by  the  Secretary  of  the  NaA-y, 
April  14,  1914,  to  investigate  and  ascertain 
whether  any  officer  or  person  in  the  naval  serv- 
ice or  connected  with  the  Navy  Department 
had  been  guilty  of  any  irregularity  or  miscon- 
duct in  originating  or  circulating  reports  or 
rumors  by  means  of  the  public  press  concerning 
the  relations  between  an  officer  of  the  Navy  and 
Government  contractors,  and  was  authorized  to 
administer  oaths  to  witnesses  under  this  section . 
(File  26251-8827:5;   see  also  16711-3,  July  12, 

1911.) 

Boards  of  investigation. — It  has  never 
been  decided  that  boards  of  investigation  in 
the  Navy  have  general  authority  to  administer 
oaths  to  witnesses  in  every  case.  So  far  as  prec- 
edent goes,  it  supports'  the  conclusion  that 
such  boards  are  authorized  to  swear  witnesses 
only  when  the  subject  of  the  investigation  re- 
lates to  "frauds  on,  or  attempts  to  defraud,  the 
Government  or  any  irregularity  or  misconduct 
of  any  officer  or  agent  of  the  United  States." 
(File  3980-842,  Sept.  29,  1913.) 

The  Navy  Regulations,  1913,  provide  that 
boards  of  investigation,  "although  they  may 
collect  material  information  froin  apparent  or 
known  facts,  or  from  written  evidence  which 
they  may  possess,  and  may  record  the  declara- 
tions of  persons  examined  before  thein,  will 
not  take  testimony  under  oath  except  in  im- 
portant cases  in  which  the  order  convening 
the  board  expressly  states  that  such  board  js 
authorized  to  administer  oaths  to  witnesses  in 
accordance  with  "  the  above  law.  (R-316  (3) 
and  (4).) 

Other  laws  authorizing  oaths  to  be  ad- 
ministered by  persons  in  the  naval  service 


or  connected  with  the  Navy  Department, 
are  as  followt; : 

For  purposes  of  naval  administration. — 
Act  of  March  4,  1917  (39  Stat.,  1171),  amending 
the  act  of  March  3,  1901  (31  Stat.,  1086),  which 
amended  the  act  of  January  25,  1895  (28  Stat., 
639),  authorizes  certain  officers  of  the  Navy, 
Marine  Corps,  Naval  Reserve  Force,  and  Marine 
Corps  Reserve,  to  administer  oaths ' '  for  the  pur- 
poses of  the  administration  of  naval  justice  and 
for  other  purposes  of  naval  administration." 
This  law  authorizesany  of  the  officers  designated 
therein  to  administer  an  oath  for  any  purpose  of 
naval  administration  (file  26806-94,  Nov.  23, 
1912;  19037-45,  May  26,  1914);  but  it  does  not 
authorize  such  officers  to  administer  an  oath  for 
other  purposes,  such  as  in  matters  relating  to 
the  private  business  of  either  officers  or  enlisted 
men.     (File  19037-27,  Mar.  30,  1912.) 

Income  tax  returns. — The  Secretary'  of  the 
Treasury'  authorized  annual  returns  of  persons 
in  the  naval  sen,dce  under  the  income  tax  pro- 
\Tsions  of  the  act  October  3,  1913  (38  Stat., 
166-181),  and  amendments  thereto,  to  be  exe- 
cuted before  any  official  authorized  to  admin- 
ister oaths  for  the  purposes  of  that  service. 
(Art.  406,  Treas.  Regs.,  1922;  see  also  U.  S.  v. 
Bailey,  9  Pet.,  238;  19  Op.  Atty.  Gen.,  401). 

Accounts  for  travel,  etc. — The  sundry 
civil  appropriation  act,  August  24,  1912,  section 
8  (37  Stat.,  487),  authorizes  certain  officers  of  the 
Government,  including  "chief  clerks  of  the 
various  executive  departments  and  bureaus  or 
clerks  designated  by  them  for  the  purpose,"  to 
administer  oaths  to  accounts  for  travel  or  other 
expenses  against  the  United  States.  See  also 
19  Op.  Atty.  Gen.,  401. 

Oaths  of  office.— The  act  of  August  29, 1890 
(26  Stat.,  371),authorizes  and  directs  chief  clerks 
of  the  several  executive  departments  and  of  the 
various  bureaus  and  offices  thereof  in  Washing- 
ton, to  administer  oaths  of  office  to  employees 
on  appointment  or  promotion.  (See  also  sec. 
392,  R.  S.,  as  amended.) 

The  Articles  for  the  Government  of  the 
Navy  authorize  oaths  to  be  administered  by 
the  following  officers:  Judges  advocate  and 
presiding  officers  of  general  courts-martial 
(arts.  40,  41);  judges  advocate  and  presiding 
officers  of  courts  of  inquiry  (art.  57);  recorders 
and  senior  members  of  summarv  courts-martial 
(arts.  28  and  29).     (Sec.  1624,  R.  S.) 

Deck  courts  are  authorized  to  administer 
oaths  by  act  of  February  16,  1909,  section  2  (35 
Stat.,  621). 

Naval  Examining  Boards  are  authorized 
to  administer  oaths  by  section  1499,  Revised 
Statutes. 

Naval  retiring  boards  have  this  authority 
under  sections  1449  and  1450,  Revised  Statutes. 

Consular  powers  may  be  exercised  by  offi- 
cers of  the  Navy  in  relation  to  mariners  of  the 
United  States,  under  conditions  prescribed  by 
section  1433,  Revised  Statutes. 


218 


Executive  Departments.        Ft.  2.  REVISED  STATUTES. 


Sec.  184. 


Acknowledgment  of  deeds  and  other  in-  to  be  verified  by  the  certificate  of  thegoverilor 

struments  affecting  lands  situate  in  the  District  or  acting  governor.     (Act  June  28,  1906,'  34 

of  Columbia  or  any  Territory,  may  be  taken  in  Stat.,  552.) 

Guam  and  Samoa  before  any  notary  public  or  On  general  subject  of  administration  of 

judge  appointed  therein  by  proper  authority,  oaths  by  officers  of  the  Navy,  see  file  19037-45, 

or  by  any  officer  therein  who  has  ex  officio  the  May  26,  1914. 
powers  of  a  notary;  such  acknowledgments 

Sec.  184.  [Claims  pending  in  Departments — Subpoenas  to  witnesses.]  Any- 
head  of  a  Department  or  Bureau  in  which  a  claim  against  the  United  States 
is  properly  pending  may  apply  to  any  judge  or  clerk  of  any  court  of  the  United 
States,  in  any  State,  District,  or  Territory,  to  issue  a  subpoena  for  a  witness 
being  within  the  jurisdiction  of  such  court,  to  appear  at  a  time  and  place  in  the 
subpoena  stated,  before  any  officer  authorized  to  take  depositions  to  be  used 
in  the  courts  of  the  United  States,  there  to  give  full  and  true  answers  to  such 
written  interrogatories  and  cross-interrogatories  as  may  be  submitted  with  the 
apphcation,  or  to  be  orally  examined  and  cross-examined  upon  the  subject  of 
such  claim.— (14  Feb.,  1871,  c.  51,  s.  1,  v.  16,  p.  412.) 


Thissection  was  modified  by  actof  July  25,  1882, 
section  3  (22  Stat.,  175),  relative  to  exami- 
nation of  witnesses  in  pension  claims;  which 
act,  however,  related    to    Pension   Office 
only. 
Constitutionality. — In  re  McLean  (37  Fed. 
Rep.,  648)  the  court  held  that  Congress  is  not 
authorized  to  permit  the  judicial  power  to  be 
invoked  in  aid  of  an  examination  pending  in 
an  executive  de])artment,  and  accordingly  that 
legislation  of  this  kind  was  null  and  would  not 
be  enforced.     In  so  holding  the  court  cited  and 
followed  In  re  Railway  Commission  (32  Fed. 
Rep.,  241).    The  McLean  case  was  approved 
and  followed  in  In  re  Interstate  Commerce  Com- 
mission (53  Fed.  Rep.,  476),  which  involved  a 
similar  question;  but  all  of  these  cases  were 
reversed  in  Commerce  Commissions.  Brimson, 
decided   by  the   Supreme   Court   (154  U.  S., 
447). 

Statutes  of  this  class  were  expressly  held  to 
be  constitutional  in  In  re  Gross  (78  Fed.  Rep., 
107),  in  which  case  the  court  cited  and  applied 
the  decision  of  the  Supreme  Court  in  Brim- 
son's  case  and  dissented  from  McLean's  case, 
both  above  cited.  (See  Haybum's  case,  2 
Ball.,  409.) 

Procedure. — This  section  does  not  author- 
ize ah  ex  parte  procedure.  Witnesses  are  to  be 
subjected  not  only  to  examination  but  to  cross- 
examination.  Claimants  are  therefore  entitled 
to  have  notice  of  the  time  and  place  of  the  ex- 
amination and  may  be  present  to  cross-examine 
the  witnesses  of  the  Government  if  they  choose 
to  do  so.  Their  attorney  may  represent  them  at 
the  examination.  A  witness  examined  by  the 
Government  is  also  entitled  to  consult  counsel. 
The  examination  is  not  before  a  court  which 
may  protect  the  witness  in  liis  constitutional 
right  to  refuse  to  answer  incriminating  ques- 
tions. The  possibility  of  converting  these  ad- 
ministrative examinations  into  very  obnoxious 
inquisitorial  proceedings  is  apparent.  The  pro- 
ceeding is  not  a  secret  one,  like  an  inquest  by  a 
grand  jury.  So  long  as  counsel  for  a  witness 
conducts  himself  with  propriety  and  does  not 
interfere  with  the  examination  he  has  a  right  to 
be  present.     If  in  the  course  of  the  examination 


any  questions  are  propounded  to  a  witness  the 
answers  to  which  will  tend  to  incriminate  liim, 
he  may  refuse  to  answer  them.  Such  refusal, 
however,  must  be  claimed  by  the  witness  as  his 
personal  privilege  and  can  not  be  claimed  for 
him  by  his  counsel.  The  examiner  has  no 
power  or  right  to  extort  a  confession  from  a  wit- 
ness, even  though  there  is  no  inten  tion  of  prose- 
cuting the  witness  therefor.  (In  re  O'Shea,  166 
Fed.  Rep.,  180.) 

Protection  of  witness. — The  courts  can  not 
be  expected  to  neglect  the  duty  which  belongs 
to  them  of  watching  against  any  stealthy  en- 
croachment upon  the  constitutional  rights  of  the 
citizen;  "and  the  least  that  they  can  require  of 
these  examiners,  so  armed  with  such  dangerous 
power,  and  invested  with  such  tempting  oppor- 
tunities to  invade  the  constitutional  guaranty, 
is  that  they  shall  conduct  their  examinations  in 
such  a  manner  that  the  citizen  shall  be  fully 
warned  of  his  constitutional  right,  and  offered 
an  opportunity  to  assert  it  by  a  refusal  to  answer; 
and  where  the  witness  is  ignorant  and  helpless, 
and  such  warning  is  neglected,  protection  can 
be  afforded  to  him  by  the  courts  in  no  other  way 
than  by  refusing  to  give  any  effect  to  the  exami- 
nation by  way  of  any  criminal  prosecution  to 
support  it  and  its  object.  *  *  *  Until  Con- 
gress shall  set  about  improving  the  system  of 
inquisition  it  is  not  to  be  expected  that  the 
courts  shall  aid  its  usefulness  at  the  expense  of 
the  constitutional  i)rotection  of  every  citizen. 
All  that  we  now  decide  to  be  necessary  to  afford 
the  protection  of  the  Constitution  to  this  defend- 
ant is  that,  unless  a  witness  manifestly  ignorant 
of  his  privilege  is  informed  of  it  by  the  examiner 
so  that  he  may  protect  himself,  consult  counsel 
if  he  desires,  and  assert  his  right  to  remain 
silent,  the  examination  can  not  be  used  in  evi- 
dence against  him,  even  on  an  indictment  for 
false  swearing  in  the  progress  of  the  examination 
itseh."  (U.S.i'.Bell,8lFed.Rep.,849.)  [This 
decision  related  particularly  to  an  examination 
conducted  under  the  pension  act  of  1882,  above 
cited.] 

Scope  of  section. — It  is  noticeable  that  this 
section  provides  only  for  investigations  "upon 
the  subject "  of  the  claims.     It  is  clear  that  Con- 


.54641°— 22- 


15 


219 


Sec.  188. 


Pt.2.  REVISED  STATUTES.        Executive  Departments, 


press  intended  to  limit  the  scope  of  the  investi- 
gations, and  that  an  examination  wliich  would 
not  be  "  upon  the  subject "  of  a  claim  would  not 
be  within  the  pundew  of  this  section.  Accord- 
ingly, the  application  for  a  subpoena  should  be 
drawn  with  reasonable  certainty  and  precision, 
so  that  it  should  clearly  appear  iipon  its  face  to 
be  in  accordance  with  the  act,  and  that  the 
cliiim  in  which  the  testimony  is  required  should 
be  reasonably  identified.  Where  this  was  not 
done, held  that  the  court  will  notrequire  witness 
who  refuses  to  answer  questions  to  show  cause 
why  he  should  not  ans%ver  the  interrogatories  or 
be  adjudged  in  contempt  of  court.  (In  re 
Gross,  78  Fed.  Rep.,  107.) 

Power  to  require  oaths. — "WTienever  the 
law  imposes  upon  an  officer  the  duty  to  exam- 
ine, adjust,  and  settle  claims  against  the  Govern- 
ment, it  gives  him  authority  to  'require'  that 
those  claims  shall  be  established,  or  supported 
at  least,  by  the  oaths  of  witnesses."  When 
power  is  given  to  the  examining  officer  to  ad- 
minister oaths  there  must  be  the  implied  power 

Sec.  185.  [Witnesses'  fees.]  Witnesses  subpoenaed  pursuant  to  the  preced- 
ing section  shall  be  allowed  the  same  compensation  as  is  allowed  witnesses  in 
the  courts  of  the  United  States.— (14  Feb.,  1871,  c.  51,  s.  1,  v.  16,  p.  412.) 


to  require  them  to  be  taken.  If  the  needed  tes- 
timony can  be  had  by  affidavits  or  depositions 
without  the  process  of  the  courts,  of  course  such 
process  need  not  be  resorted  to.  (14  Op.  Atty. 
Gen.,  419, 420,  citing  U.  S.  v.  Bailey  (9  Pet.,  238, 
253)  as  to  implied  power  to  require  testimony  to 
be  submitted  under  oath .)  The  original  act  up- 
on which  section  184,  Revised  .Statutes,  is  based 
expressly  provided  that  any  witness  attending 
in  accordance  with  said  act  who  should  be  guilty 
of  intentional  false  swearing  in  his  testimony 
should  be  deemed  guilty  of  the  crime  of  perjury. 
Punishment  for  perjury  is  now  provided  for  by 
section  12r),  Criminal  Code,  act  of  March  4, 1909 
(35  Stat.,  1111).  With  reference  to  the  original 
statute,  the  Attorney  General,  in  the  opinion 
cited,  said:  "This  statute  assumes  that  there  is 
authority  in  the  heads  of  departments  and  bu- 
reaus to  require  oaths  in  cases  of  claims  against 
the  Government,  and  gives  them  very  effective 
process  for  the  exercise  of  that  authority." 
(14  Op.  Atty.  Gen.,  420.) 


and  paid  by  the  United  States  marshal  of 
the  district  on  the  certificate  or  order  of  the 
United  States  commissioner  before  whom  the 
examination  was  conducted;  while  the  fees  of 
the  commissioner  should  be  paid  as  in  ordinary 
course,  on  settling  his  accounts  at  the  Treasury 
from  the  appropriation ' '  for  fees  of  United  States 
commissioners,"  belonging  to  the  judiciary 
fund.     (17  Op.  Atty.  Gen.,  247.) 


Fees  of  witnesses  before  naval  courts-martial 

and  courts  of  inquiry  are  provided  for  by 

act  of   February  16,  1909,  section  12  (35 

Stat.,  622).  See  note  to  section  848,  Revised 

Statutes. 
Appropriation  available. — In  the  absence 
of  a  special  provision  for  defraying  the  ex- 
penses of  witnesses,  they  may  properly  be 
allowed  out  of  the  judiciary  fund,  which 
makes  appropriation  "for  fees  of  witnesses," 

Sec.  186.  [Compelling  testimony.]  If  any  witness,  after  being  duly  served 
with  such  subpoena,  neglects  or  refuses  to  appear,  or,  appearing,  refuses  to  testify, 
the  judge  of  the  district  in  which  the  subpoena  issued  may  proceed,  upon  proper 
process,  to  enforce  obedience  to  the  subpoena,  or  to  punish  the  disobedience,  in 
like  manner  as  any  court  of  the  United  States  may  do  in  case  of  process  of  sub- 
poena ad  testificandum  issued  by  such  court. — (14  Feb.,  1871,  c.  51,  s.  l,v.  16, 
p.  412.) 

See  note  of  decisions  under  section  184,  Revised  Statutes. 

Sec.  187.  [Legal  assistance  in  connection  with  claims.]  Whenever  any  head 
of  a  Department  or  Bureau  having  made  application  pursuant  to  section  one 
hundred  and  eighty-four,  for  a  subpoena  to  procure  the  attendance  of  a  witness 
to  be  examined,  is  of  opinion  that  the  interests  of  the  United  States  require  the 
attendance  of  counsel  at  the  examination,  or  require  legal  investigation  of  any 
claim  pending  in  his  Department  or  Bureau,  he  shall  give  notice  thereof  to  the 
Attorney-General,  and  of  all  facts  necessary  to  enable  the  Attorney-General  to 
furnish  proper  professional  service  in  attending  such  examination,  or  making 
such  investigation,  and  it  shall  be  the  duty  of  the  Attorney-General  to  provide 
for  such  service.— (14  Feb.,  1871,  c.  51,  s.  3,  v.  16,  p.  412.) 
A  similar  provision  is  contained  in  section  364,  Revised  Statutes. 

Sec.  188.  [Suits  in  Court  of  Claims — Evidence  furnished  by  Departments.] 
In  all  suits  brought  against  the  United  States  in  the  Court  of  Claims  founded 


220 


Executive  Departments.        Pt.2.  REVISED  STATUTES.  Sec.  189. 

upon  any  contract,  agreement,  or  transaction  with  any  Department,  or  any 
Bureau,  officer,  or  agent  of  a  Department,  or  where  the  matter  or  thing  on  which 
the  claim  is  based  has  been  passed  upon  and  decided  by  any  Department, 
Bureau,  or  officer  authorized  to  adjust  it,  the  Attorney-General  shall  transmit 
to  such  Department,  Bureau,  or  officer,  a  printed  copy  of  the  petition  filed  by 
the  claimant,  with  a  request  that  the  Department,  Bureau,  or  officer,  shall  fur- 
nish to  the  Attorney-General  all  facts,  circumstances,  and  evidence  touching 
the  claim  in  the  possession  or  knowledge  of  the  Department,  Bureau,  or  officer. 
Such  Department,  Bureau,  or  officer  shall,  without  delay,  and  within  a  reason- 
able time,  furnish  the  Attorney-General  wdth  a  full  statement,  in  writing,  of  all 
such  facts,  information,  and  proofs.  The  statement  shall  contain  a  reference  to 
or  description  of  all  such  official  documents  or  papers,  if  any,  as  may  furnish 
proof  of  facts  referred  to  in  it,  or  may  be  necessary  and  proper  for  the  defense 
of  the  United  States  against  the  claim,  mentioning  the  Department,  office,  or 
place  where  the  same  is  kept  or  may  be  procured.  If  the  claim  has  been  passed 
upon  and  decided  by  the  Department,  Bureau,  or  officer,  the  statement  shall 
succinctly  state  the  reasons  and  principles  upon  which  such  decision  was  based. 
In  all  cases  where  such  decision  was  founded  upon  any  act  of  Congress,  or  upon 
any  section  or  clause  of  such  act,  the  same  shall  be  cited  specifically;  and  if  any 
previous  interpretation  or  construction  has  been  given  to  such  act,  section,  or 
clause  by  the  Department,  Bureau,  or  officer,  the  same  shall  be  set  forth  suc- 
cinctly in  the  statement,  and  a  copy  of  the  opinion  filed,  if  any,  shaU  be  annexed 
to  it.  Where  any  decision  in  the  case  has  been  based  upon  any  regulation  of  a 
Department,  or  where  such  regulation  has,  in  the  opinion  of  the  Department, 
Bureau,  or  officer  transmitting  such  statement,  any  bearing  upon  the  claim  in 
suit,  the  same  shall  be  distinctly  quoted  at  length  in  the  statement.  But  where 
more  than  one  case,  or  a  class  of  cases,  is  pending,  the  defense  to  which  rests 
upon  the  same  facts,  circumstances,  and  proofs,  the  Department,  Bureau,  or 
officer  shaU  only  be  required  to  certify  and  transmit  one  statement  of  the  same,, 
and  such  statement  shall  be  held  to  apply  to  all  such  cases,  as  if  made  out,  certi- 
fied, and  transmitted  in  each  case  respectively. — (25  June,  1868,  c.  71,  s.  6,  v» 
15,  p.  76.) 


See  Title  VIII,  Revised  Statutes,  "  Depart- 
ment of  Justice." 
Confidential  information. — By  act  of  Feb- 
ruary 24,  1855,  embodied  in  section  1076,  Re- 
vised Statutes,  the  Court  of  Claims  was  au- 
thorized to  "call  upon  any  of  the  departments 
for  any  information  or  papers  it  may  deem  nec- 
essary *  *  *  Provided,  That  the  head  of  no 
department  shall  answer  any  call  for  informa- 
tion or  papers  if  in  his  opinion  it  would  be 
injurious  to  the  pubUc  interest."  Under  this 
provision,  it  is  clear  that  the  head  of  a  depart- 


ment is  not  at  liberty  to  furnish  to  the  court 
information  or  papers  when  to  do  so  would  in 
his  opinion  be  injurious  to  the  public  interest, 
and  a  return  setting  forth  such  opinion  would 
in  all  such  cases  be  a  sufficient  answer  to  the 
rule.  (13  0p.Atty.Gen.,539.)  For  other  cases, 
see  note  to  sections  161,  418,  and  871,  Re\dsed 
Statutes. 

Public  policy  forbids  the  maintenance  of 
any  suit  requiring  the  disclosure  of  confiden- 
tial matters.     (Totten  v.  U.  S.,  92  U.  S.,  105.) 


Sec.  189.  [Employment  of  attorneys  or  counsel.]  No  head  of  a  Department 
shall  employ  attorneys  or  counsel  at  the  expense  of  the  United  States;  but 
when  in  need  of  counsel  or  advice,  shall  call  upon  the  Department  of  Justice, 
the  officers  of  which  shall  attend  to  the  same. — (22  June,  1870,  c.  150,  s.  17,  v. 
16,  p.  164.) 

the  former  practice,  which  permitted  heads  of 
departments  to  employ  counsel  without  ap- 
plying to  the  Attorney  General.  (19  Op.  Atty. 
Gen.,  330;  21  Op.  Atty.  Gen.,  195.) 


See  Title  VIII,   Revised  Statutes,  "  Depart- 
ment of  Justice." 
Purpose    of    enactment. — This    law    was 
passed  to  correct  abuses  which  existed  under 


221 


Sec.  189. 


Pt.  2.  REVISED  STATUTES.        Executive  Departments. 


The  provisions  of  law  concerning  the 
Department  of  Justice  (see  Title  VllI,  11. 
S.)  "are  too  conclusive  and  too  specific  to  leave 
any  doubt  thatConj^ress  intended  to  gather  into 
the  Department  of  Justice,  under  the  super- 
vision and  control  of  the  Attorney  General,  all 
the  litiKation  and  all  the  law  business  in  which 
the  United  States  are  interested,  and  which 
previously  had  been  scattered  among  different 
public  olHcers,  departments,  and  branches  of 
the  Government,  and  to  break  up  the  practice 
of  frequently  emplojing  unofficial  attornevs  for 
the  public  service."  (Perry  v.  U.  S.,  28  Ct. 
Cls.,  491.) 

Employment  of  district  attorneys. — By 
anactapproved  February  26, 1853(10Stat.,  161), 
it  was  provided  that,  for  the  services  of  counsel 
rendered  at  the  request  of  a  head  of  a  depart- 
ment, the  compensation  should  be  such  sum 
as  might  be  stipulated  or  agreed  on.  This  pro- 
vision recognized  the  authority  of  heads  of 
departments  to  employ  counsel,  and  under  it 
they  employed  district  attorneys  to  examine 
titles  and  prepare  abstracts  thereof  for  submis- 
sion to  the  Attorney  General,  and  allowed  them 
special  compensation  therefor.  But  the  act  of 
1853  was  repealed  by  a  clause  in  the  act  of  1870, 
now  embodied  in  section  189,  Revised  Statutes. 
That  repeal  only  altered  the  mode  of  employ- 
ment; that  is  to  say,  it  in  effect  invested  the 
Attorney  General  with  sole  authority  thereafter 
to  employ  district  attorneys  where  the  per- 
formance of  such  services  by  him  is  called  for. 
(19  Op.  Atty.  Gen.,  64.) 

Before  the  passage  of  the  act  on  which  section 
189,  Revised  Statutes,  is  based,  the  heads  of  the 
several  departments  were  accustomed  to  employ 
district  attorneys  to  examine  into  the  titles  to 
lands  sought  to  be  purchased  by  the  United 
States.  Under  such  employment  the  district 
attorneys  performing  the  services  received 
compensation  for  such  services  over  and  above 
the  usual  compensation  allowed  by  law  for 
district  attorneys.  Since  the  passage  of  this 
law  such  services  have  been  required  of  dis- 
trict attorneys  by  the  Department  of  Justice. 
(Weed  i;_.  U.S.,  82  Fed.  Rep.,  414, 419.)  In  this 
connection  see  section  355,  Revised  Statutes. 

The  Secretary  of  War  has  no  authority 
without  the  consent  of  the  Attorney  General 
to  employ  counsel  to  appear  in  court  in  certain 
habeas  corpus  cases  (13  Op.  Atty.  Gen.,  583); 
nor  to  employ  a  patent  attorney  to  prosecute  an 
application  for  a  patent  (10  Comp.  Dec,  686). 

Formerly  it  was  competent  for  the  head 
of  any  of  the  executive  departments  to 
employ  a  district  attorney  or  other  counsel  in 
connection  with  proceedings  in  a  State  court 
in  which  the  United  States  was  interested;  and 
such  district  attorney  or  other  counsel  was 
entitled  to  receive  for  his  services  such  sum  as 
might  be  agreed  upon.  But  the  authority  of 
the  various  heads  of  departments  thus  to  employ 
counsel  at  the  expense  of  the  United  States  was 
taken  away  by  the  law  now  embodied  in  sec- 
tion 189,  Revised  Statutes,  and  it  was  provided 
that  this  power  should  thereafter  be  exercised 
only  by  the  Attorney  General.  (16  Op.  Atty. 
Gen.,  101.)  As  to  proceedings  in  State  courts, 
see  section  367,  Revised  Statutes. 


Wliere  Congress,  in  an  appropriation  act 

passed  subsequent  to  the  enactment  of  this 
section,  authorized  the  head  of  a  bureau  in  an 
executive  dei)artmcnt  ''to  employ  as  many 
persons  as  he  may  deem  necessary"  for  the 
purposes  of  said  approi)riation,  this  did  not 
carry  with  it  authority  for  the  head  of  the  bureau 
or  executive  dei>artment  to  which  it  was  at- 
tached to  employ  counsel;  as  the  employment 
of  counsel  in  executive  departments  is  specifi- 
cally covered  by  sections  189,  362,  and  363, 
Revised  Statutes;  and  the  general  language  of 
an  appropriation  can  not  be  given  such  scope 
as  to  operate  as  a  rejjeal,  so  far  as  a  particular 
bureau  is  concerned,  of  legislation  regulating 
the  subject  of  employing  counsel  for  the  Gov- 
ernment— legislation  which  was  intended  to 
apply  to  all  branches  of  the  Government,  which 
has  remained  in  force  for  many  years,  and  the 
want  of  which  had  led  to  some  abuses.  (19  Op. 
Atty.  Gen.,  330.) 

Duties  of  Comptroller  of  the  Treas- 
ury.— In  practice  the  Comptroller  of  the  Treas- 
ury is  asked,  in  form,  for  legal  advice;  La  fact, 
what  is  desired  is  information  as  to  his  future 
action  in  a  case,  which  may  come  before  him 
for  decision.  Where,  however,  the  Secretary 
of  the  Treasury  asks  the  advice  of  the  accoimt- 
ing  officers  upon  legal  questions  which  do  not 
involve  future  action  by  them  up6n  questions 
of  payments,  the  advice  so  rendered  by  the 
accounting  officers  is  a  purely  voluntary  matter, 
and  to  compensate  them  for  such  work  would 
be  a  violation  of  section  189,  Revised  Statutes. 
(20  Op.  Atty.  Gen.,  655,  657.)  [The  view  that 
the  opinions  of  the  Comptroller  upon  legal  ques- 
tions are  purely  extraofficial  is  no  longer  ten- 
able; by  act  of  July  31,  1894  (28  Stat.,  208),  he  is 
authorized  to  render  an  advance  decision  upon 
any  question  involving  a  payment.  (22  Op. 
Atty.  Gen.,  581.)  See  note  to  section  236,  Re- 
vised Statutes.] 

Judge  advocate,  naval  court-martial. — 
According  to  the  law  regulating  courts-martial, 
the  judge  advocate  is  the  official  prosecutor; 
and  in  cases  arising  in  the  Navy  he  is  by  cus- 
tom either  a  naval  officer  specially  designated 
or  a  counselor  at  law  employed  for  that  purpose. 
If  a  naval  officer,  he  receives  no  special  compen- 
sation. If  a  counselor  at  law,  it  has  been  the 
custom  to  pay  him  as  for  a  professional  service. 
The  law  now  embodied  in  seccion  189,  Revised 
Statutes,  prohibits  the  Secretary  of  any  of  the 
executive  departments  from  employing  attor- 
neys or  counsel  at  the  expense  of  the  United 
States.  Considering  it  settled  that  the  desired 
services  (judge  advocate)  are  such  as  can  be 
properly  performed  only  by  a  naval  officer  or  a 
counselor  at  law,  the  Attorney  General  holds 
that  if,  in  the  judgment  of  the  Secretary  of  the 
Navy,  the  cases  in  hand  should  be  conducted  by 
a  person  of  the  latter  description,  the  Secretary 
of  the  Navy  is  not  at  liberty  to  employ  such 
counsel,  but  should  call  upon  the  Department 
of  Justice  which  will  furnish  an  officer  for  the 
service.  (13  Op.  Atty.  Gen.,  515;  affirmed  14 
Op.  Atty.  Gen.,  13;  see  U.  S.  v.  Mackenzie,  26 
Fed.  Gas.,  1121.)  In  this  connection,  see  note 
to  section  362,  Revised  Statutes. 

Legal  assistance  for  judge  advocate. — 
Special   counsel   may   be   employed   by   the 


222 


Executive  Departments.        Pt.  2.  REVISED  STATUTES. 


Sec.  189. 


Attorney  General  at  the  request  of  the  Secre- 
tary of  the  Navy  to  assist  the  judge  advocate 
in  a  trial  by  court-martial;  the  compensation 
of  such  counsel  (in  the  absence  of  other  provi- 
sion) to  be  paid  from  the  appropriation  for 
contingent  expenses  of  the  Navy.  Such  coun- 
sel should  be  commissioned  by  the  Attorney 
General  under  section  366,  E,e\T.sed  Statutes. 
(18  Op.  Atty.  Gen.,  135.) 

The  Secretary  of  the  Navy  is  not  author- 
ized by  sections  3676  and  3681,  Revised  Stat- 
utes, to  employ  special  counsel  in  his  discretion, 
in  connection  with  cases  before  naval  courts- 
martial,  without  applying  to  the  Attorney  Gen- 
eral. (18  Op.  Atty.  Gen.,  136.  See  file  26251- 
10398:6,  in  which  the  Secretary  of  the  Navy 
assigned  the  law  clerk  in  the  office  of  the  Judge 
Advocate  General  as  counsel  to  the  judge  advo- 
cate in  the  trial  of  a  commissioned  officer  by 
court-martial ;  and  see  Court  of  Inquiry  Record, 
No.  4952,  in  which  the  solicitor  in  the  office  of 
the  Judge  Advocate  General  was  assigned  by 
the  Secretary  of  the  Navy  as  associate  and  as- 
sistant to  the  judge  advocate.) 

A  judge  advocate  need  not  be  a  profes- 
sional person.  His  qualifications  must,  of 
course,  be  of  the  sort  required  by  members  of 
the  bar,  but  there  is  no  law  limiting  choice  of 
judge  advocates  or  of  their  assistants,  when 
needed,  to  that  class.  Although  there  is  no 
statutory  provision  in .  regard  to  naval  judge 
advocates  like  that  for  those  of  the  Army,  to 
the  effect  that  they  shall  belong  to  the  Navy, 
yet  in  fact  this  is  generally  the  case.  So,  also, 
assistants  for  judge  advocates  might  be  detailed 
from  the  same  branch  of  service,  or,  indeed, 
specially  intelligent  persons  might  be  selected 
from  anv  line  of  civil  life.  (18  Op.  Atty. 
Gen.,  137.) 

Counsel  in  foreign  countries. — In  view 
of  section  189,  Revised  Statutes,  the  Secretary 
of  the  Nav>^  is  not  authorized  to  employ  counsel 
in  foreign  countries  to  institute  suit  in  behalf 
of  the  United  States  to  recover  for  damages 
caused  to  a  war  vessel  of  the  United  States,  but 
the  case  should  be  refen-ed  to  the  Department 
of  Justice,  which  is  charged  with  the  duty  of 
determining  when  the  United  States  shall  sue, 
for  what  it  shall  sue,  and  that  such  suits  shall  be 
brought  in  appropriate  cases.  (21  Op.  Atty. 
Gen.,  195,  citing  U.  S.  v.  San  Jacinto  Tin  Co., 
125  U.  S.,  273,  279,  280;  and  In  re  Neagle,  135 
U.S.,65,  67;seealso2Comp.  Dec,  340).  The 
right  and  duty  of  the  commander  of  a  naval 
vessel,  or  of  the  Secretary  of  the  Navy,  to 
employ  in  an  emergency  counsel  in  a  foreign 
country,  when  necessary  for  the  protection  of 
such  vessel  and  all  that  pertains  to  it,  are 
not  now  decided,  and  would  involve  princi- 
ples other  than  those  passed  upon  in  de- 
termining the  general  question  of  employing 
counsel  in  a  foreign  country  in  behalf  of  the 
United  States.  Section  189,however,  was  passed 
to  correct  what  was  considered  an  abuse  by 
tlie  heads  of  departments  of  the  power  to  employ 
counsel.  Its  terms  are  undoubtedly  broad 
enough  to  cover  any  employment  of  counsel  in 
cases  like  that  now  in  question,  although  they 
have  been  so  rare  that  they  probably  were  not 
a  moving  cause  of  the  enactment  of  the  law. 
Congress,  however,  must  have  contemplated, 


inasmuch  as  ships  of  war  are  constantly  on  the 
high  seas  and  in  foreign  ports,  that  questions 
of  law  would  arise  in  respect  to  them  in  the 
administration  of  the  Navy  Department. 
However,  no  exception  whatever  is  made  of 
such  cases  in  the  law.    (21  Op.  Atty.  Gen. ,  195.) 

Wliile  as  the  law  stands  at  the  present  time 
it  is  doubtless  within  the  pruvince  of  the  Attor- 
ney General  only  to  employ  counsel  in  foreign 
coimtries  to  defend  the  United  States  against 
suit  for  collision  by  a  naval  vessel,  the  Attorney 
General  has  neither  facilities  for  communicat- 
ing with  the  naval  officers  abroad,  nor  has  he 
any  method  of  ascertaining  who  would  be  the 
most  desirable  attorneys  to  employ,  or  by  what 
particular  method  such  employment  should  be 
made.  The  Attorney  General,  therefore,  re- 
quested that  the  Secretary  of  the  Navy  act  in 
his  stead  in  arranging  for  the  employment  of 
counsel  to  defend  a  suit  brought  in  the  Supreme 
Court  of  Hongkong  by  o^^^lers  of  a  Chinese  jimk, 
Tung  on  Tai,  against  the  master  of  the  U .  S .  N .  A . 
Alexander.     (File  4729-1,  Apr.  24,  1906.) 

If  it  was  the  intention  of  the  Attorney  Gen- 
eral that  the  Secretary  of  the  Navy  should  act 
for  him  in  selecting  coxmsel,  such  employment 
to  be  approved  by  the  Attorney  General  and 
the  compensation  of  said  counsel  to  be  sti]m- 
lated  by  him  as  provided  by  section  363,  Re- 
vised Statutes,  counsel  so  employed  would 
be  entitled  to  such  compensation  on  the  certifi- 
cate of  the  Attorney  General  provided  forin  sec- 
tion 365,  Revised  Statutes.  But  such  compen- 
sation is  payable  only  from  the  appropriation  for 
payment  of  assistants  to  United  States  district 
attorneys  employed  by  the  Attorney  General  to 
aid  in  special  cases,  which  appropriation  spe- 
cifically provides  that  it  "shall  be  available  also 
for  the  payment  of  foreign  counsel  employed  by 
the  Attorney  General  in  special  cases,  and  such 
counsel  shall  not  be  required  to  take  oath  of  office 
in  accordance  with  section  366,  Revised  Statutes 
of  the  United  States."  (33  Stat.,  1207;  see  also 
act  Aug.  24,  1912,  37  Stat., 465.)  The  employ- 
ment by  the  Secretary  of  the  Na\'y ,  and  payment 
from  the  appropriation  for  the  Navy  entitled 
"Pay,  Miscellaneous,"  of  coimsel  to  defend  the 
master  of  the  U.  S.  N.  A.  Alexander  in  the  suit 
referred  to  would  be  in  direct  contravention  of 
sections  189,  357, 363, and  365,  Revised  Statutes. 
In  view  of  these  provisions,  the  item  in  that  ap- 
propriation, "cost  of  suits,"  can  not  properly  be 
construed  as  authorizing  the  employment  and 
payment  of  coimsel  by  the  Navy  Department. 
(Comp.  Dec,  June  5,  1906;  file  4729-5.) 

If,  as  is  understood  to  be  the  case,  the  fund 
appropriated  to  the  Department  of  Justice  for 
the  payment  of  special  counsel  for  the  current 
fiscal  year  is  exhausted,  it  may  be  that  the  ap- 
propriation for  the  next  fiscal  year  may  be  ap- 
propriately drawn  upon  in  a  case  in  which  the 
services  of  counsel,  if  now  engaged,  would 
actually  be  rendered  in  the  next  fiscal  year. 
(Secretary  of  the  Navy  to  Attorney  General, 
June  7,  1906;  file  4729-1,  5.)  This  suggestion 
was  adopted,  and  upon  completion  of  the 
services  the  Attorney  General  advised  the 
Secretary  of  the  Na\y  that  if  the  counsel  em- 
ployed will  make  out  and  forward  an  account 
for"^his  services  in  the  case  mentioned,  from 
Julv  1  of  the  current  year  to  the  date  of  the 


223 


Sec.  190. 


Pt.  2.  REVISED  STATUTES.       Executive  Departments. 


conclusion  of  the  case,  the  same  will  be  ap- 
proved by  the  Department  of  Justice  and  for- 
warde<l  to  the  Autlitor  for  the  State  and  Other 
Departments  for  examination,  settlement,  and 
payment  by  warrant  transmitted  through  the 
United  States  consul  at  Hongkong.  Such  ac- 
countshould  not  make  any  mention  of  expenses. 
Owing  to  delay  in  payment  which  had  already 
occurred,  the  Secretary  of  the  Navy,  in  pursu- 
ance of  an  infornuil  understanding  with  the  De- 
partment of  Justice,  cabled  the  commander  in 
chief  of  naval  forces  on  the  Asiatic  station  to 
"pay  and  forward  receipted  bill"  of  counsel  in 
question.     (File  4729-20,  Nov.,  1906.) 

Difficulties  are  naturally  to  be  expected  when 
statutes  general  in  their  terms,  such  as  section 
363  (and  189),  Revised  Statutes,  are  applied  to 
a  case  where  counsel  nmst  be  employed  in  a  for- 
eign country  under  unusual  conditions.  (Sec- 
retary of  the  Navy  to  Attorney  General,  Nov. 
9,  1906,  file  4729-18.)  The  Department  of  Jus- 
tice is  without  representatives  abroad,  and 
therefore  has  no  direct  means  of  selecting  suit- 
able counsel.  It  seems  appropriate  that  where 
admiralty  proceedings  within  the  jurisdiction  of 
foreign  countries  are  necessary,  for  the  protec- 
tion of  the  interests  of  the  United  States  or  those 
of  officers  against  whom  suits  are  brought  for 
acts  done  in  the  line  of  duty,  the  Navy  Depart- 
ment, through  the  senior  naval  officer  i)resent, 
having  direct  knowle<lge  of  the  matter,  should 


be  authorized  to  employ  counsel  without  delay. 
(Secretary  of  the  Navy  to  chairmen  of  the  Com- 
mittees on  Naval  Affairs,  House  of  Representa- 
tives and  United  States  Senate,  Apr.  28,  1906, 
file  4729-1.)  See  also,  to  same  effect.  Annual 
Report,  Secretary  of  the  Navy,  1906,  page  17, 
ana  Appendix  B,  which  refers  to  and  quotes 
memorandum  of  Judge  Advocate  General,  No- 
vember 24,  1906  (file  4729-21). 

Naval  officer  detailed  by  Commander  inChief, 
Asiatic  Fleet,  as  counsel  for  enlisted  men  in  pro- 
ceedings before  U.  S.  Court  for  the  Consular 
District  of  Hankow,  upon  charge  of  manslaugh- 
ter.    (See  file  12671-35.) 

Oath  of  special  counsel. — Special  counsel 
employed  by  the  Attorney  General  at  the  re- 
quest of  heads  of  other  departments,  to  assist  in 
the  trial  of  a  case  in  which  the  Government  is 
interested,  must  be  commissioned  by  the  De- 
partment of  Justice  as  a  special  assistant  to  the 
Attorney  General,  or  to  some  one  of  the  district 
attorneys,  as  the  nature  of  the  appointment  may 
require;  and  shall  take  the  oath  required  by 
law  to  be  taken  by  the  district  attorneys.  (Sec. 
366,  R.  S.;  18  Op.  Atty.  Gen.,  135.)  But  this 
does  nut  apply  to  counsel  employed  in  foreign 
countries,  ft-ho  are  not  required  to  take  oath  of 
office.  (Act  Aug.  24,  1912,  37  Stat.,  465;  file 
4729-18.) 

For  other  cases  see  note  to  section  362,  Re- 
vised Statutes. 


Sec.  190.  [Persons  formerly  in  Departments  not  to  prosecute  claims.]  It 
shall  not  be  la^^'flll  for  any  person  appointed  after  the  first  day  of  June,  one 
thousand  eight  hundred  and  seventy-two,  as  an  ofricer,  clerk,  or  employe  in 
any  of  the  Departments,  to  act  as  counsel,  attorney,  or  agent  for  prosecuting 
any  claim  against  the  United  States  which  was  pending  in  either  of  said  De- 
partments while  he  was  such  officer,  clerk,  or  employe,  nor  in  any  manner,  nor 
by  any  means,  to  aid  in  the  prosecution  of  any  such  clami,  within  two  years 
next  after  he  shall  have  ceased  to  be  such  officer,  clerk,  or  employe. — (1  June, 
1872,  c.  256,  s.  5,  vol.  17,  p.  202.) 


Sec.  113,  Criminal  Code,  act  of  March  4, 1909(35 
Stat.,  1109),  prohibits  any  Senator,  Repre- 
sentative, or  Delegate  in  Congress,  and  offi- 
cers and  clerks  in  the  employ  of  the  Gov- 
ernment, from  accepting  compensation  for 
services  rendered  to  any  person  in  rela- 
tion to  any  proceeding  in  which  the  United 
States  is  a  party,  before  any  department, 
court-martial,  bureau,  officer,  or  civil, 
miUtary,  or  naval  commission  whatever. 

Sec.  109,  Criminal  Code,  act  of  March  4, 1909  (35 
Stat.,  1107),  prohibits  every  officer  of  the 
United  States,  or  person  holding  any  place 
of  trust  or  profit  or  discharging  any  official 
function  in  connection  with  any  executive 
department,  the  Senate,  or  House  of  Rep- 
resentatives, to  act  as  agent  or  attorney  for 
prosecuting  any  claims  against  the  United 
States,  or  otherwise  than  in  the  discharge 
of  his  proper  official  duties  to  assist  in  the 
prosecution  of  any  such  claim. 
A  retired  oflB.cer  of  the  Army  is  "an  officer 

of  the  United  States"  within  the  meaning  of 

section  5498,  Revised  Statutes  [superseded  by 


section  109,  Criminal  Code,  act  of  March  4,  1909, 
35  Stat.,  1107],  and  therefore  prohibited  from  act- 
ing as  an  agent  or  attorney  for  prosecuting  any 
claim  against  the  United  States.  (Tyler's  case, 
18  Ct.  Cls.,  25.)  In  this  case  the  Court  of  Claims 
followed  the  decision  of  the  Supreme  Court  in 
Tyler  v.  United  States  (105  U.  S.,  244)  wliich 
held  that  a  retired  officer  of  the  Army  is  in  the 
service  of  the  United  States.  In  Winthrop's 
case  (31  Ct.  Cls.,  35),  the  Court  of  Claims  affirmed 
its  previous  decision  in  Tyler's  case,  and  ex- 
pressly dissented  from  the  decision  of  the  New 
York  Court  of  Appeals,  rendered  in  People  v. 
Duane  (121  N.  Y.,  373),  which  held  that  a 
retired  officer  of  the  Army  does  not  hold  a 
Federal  office.  In  the  Winthrop  case  the  Court 
of  Claims  cited  in  support  of  its  decision  Wood's 
case  (15  Ct.  Cls.,  151;  affirmed  107  U.  S.,  414), 
Franklin's  case  (29  Ct.  Cls.,  6),  Badeau's  case 
(130  U.  S.,  439),  and  Texas  v.  De  Gress  (53  Tex., 
400) .  The  cases  were  reviewed  by  the  Attorney 
General  in  an  opinion  to  the  Secretary  of  the 
Navy,  May  17,  1912  (29  Op.  Atty.  Gen.,  397), 
holding  that  a  retired  officer  of  the  Marine  Corps 


224 


Executive  Departments.        Pt.2.  REVISED  STATUTES. 


Sec.  192. 


is  an  officer  in  the  employ  of  the  Government, 
and,  as  such,  is  prohibited  by  section  1782,  Re- 
vised Statutes,  from  accepting  compensation  for 
appearing  before  any  department,  coiu"t-martial, 
etc.  In  this  opinion,  the  Attorney  General  also 
dissented  from  the  case  of  People  v.  Duane, 
and  the  case  of  Reed  v.  Schon  (2  Cal.  App.,  57). 
[Note:  Section  1782,  Revised  Statutes,  was  su- 


perseded and  repealed  by  Criminal  Code,  act 
of  March  4,  1909,  sections  113  and  341,  35  Stat , 
1109  and  1153.] 

The  Civil  Service  Coinmission  ie  not  an 
executive  department  within  the  meaning  of 
this  section.  (25  Op.  Atty.  Gen.,  6.)  As  to 
definition  of  "  Departments,"  see  note  to  sec- 
tion 159,  Revised  Statutes. 


Sec.  191.  [Certified  balances  conclusive  in  settlement  of  public  accounts. 
Repealed.] 


This  section  provided  as  foUovrs: 

"Sec.  191.  The  balances  which  may  from 
time  to  time  be  stated  by  the  auditor  and  certi- 
fied to  the  heads  of  departments  by  the  Com- 
missioner of  Customs,  or  the  Comptrollers  of  the 
Treasury,  upon  the  settlement  of  public  ac- 
counts, shall  not  be  subject  to  be  changed  or 
modified  by  the  heads  of  departments,  but 
shall  be  conclusive  upon  the  executive  branch 
of  the  Government,  and  be  subject  to  revision 
only  by  Congress  or  the  proper  courts.  The 
head  of  the  proper  department,  before  sign- 
ing a  warrant  for  any  balance  certified  to  him 
by  a  Comptroller,   may,   however,   submit  to 


such  Comptroller  any  facts  in  his  judgment 
affecting  the  correctness  of  such  balance, 
but  the  decision  of  the  Comptroller  thereon 
shall  be  final  and  conclusive,  as  hereinbefore 
provided."— (30  Mar.,  1868,  c.  36,  s.  1,  v.  15, 
p.  54.) 

It  was  expresslyrepealedbyactof  July  31, 
1894,  section  8  (28  Stat.,  208),  which  act  con- 
tained proA-isions  completely  covering  the  sub- 
ject matter  of  this  section. 

As  to  effect  of  accounting  officers'  ac- 
tion, and  references  to  cases  in  which  this  sec- 
tion has  been  considered,  see  on  general  sub- 
ject section  236,  Revised  Statutes,  and  note. 


Sec.  192.  [Expenditures  for  newspapers.]  The  amount  expended  in  any  one 
year  for  newspapers,  for  any  Department,  except  the  Department  of  State,  in- 
cluding all  the  Bureaus  and  offices  connected  therewith,  shall  not  exceed  one  hun- 
dred dollars.  And  all  newspapers  purchased  with  the  public  money  for  the 
use  of  either  of  the  Departments  must  be  preserved  as  files  for  such  Depart- 
ment.—(26  Aug.,  1842,  c.  202,  s.  16,  v.  5,  p.  526.) 

The  latter  portion  of  this  section  requiring 
newspapers  purchased  for  the  use  of  execu- 
tive departments  to  be  preserved  for  the 
permanent  files  of  such  departments,  was 
expressly  repealed  by  act  of  June  22,  1906, 
section  7  (34  Stat.,  449). 

By  act  of  June  19,  1878  (20  Stat.,  171),  punish- 
ment was  provided  for  stealing,  wrongfully 
defacing,  injuring,  mutilating,  tearing,  or 
destroying  any  newspaper,  the  property  of 
the  United  States. 


By  section  1779,  Revised  Statutes,  it  is  pro- 
vided that  "no  executive  officer  other  than 
the  heads  of  departments,  shall  apply  more 
than  $30  annually  out  of  the  contingent 
fund  under  his  control  to  pay  for  newspa- 
pers, pamphlets,  periodicals,  or  other  books 
or  prints  not  necessary  for  the  business  of 
his  office." 

Section  192  has  been  modified  so  as  not  to  apply 
to  subscriptions  to  newspapers  by  the  Alili- 
tary  Information  Division,  Adjutant  Gen- 
eral's Office  of  the  Army,  for  the  fiscal  years 
1898  and  thereafter.  (Armv  appropriation 
act.  Mar.  2,  1903,  32  Stat.,  929;  joint  reso- 
lution, June  29,  1898,  30  Stat.,  749.) 

Section  3648,  Re\'ised  Statutes,  provides  that 
"no  advance  of  public  money  shall  be  made 
in  any  case  whatever,"  and  that  payment 
shall  not  exceed  the  value  of  articles  previ- 
ously delivered.  Congress  has  repeatedly 
enacted  that  this  prohibition  shall  not  apply 


to  subscriptions  to  newspapers  in  specified 
cases.  See  Naval  appropriation  act,  Au- 
gust 22,  1912  (37  Stat.,  350),  and  subsequent 
years,  as  to  foreign  and  domestic  periodicals 
for  the  Naval  Academy;  Army  appropria- 
tion act,  April  23, 1904  (33  Stat.,  260),  as  to 
foreign  and  professional  newspapers  and 
periodicals  for  Military  Information  Divi- 
sion, General  Staff  Corps;  Army  appropria- 
tion act,  March  3, 1911  (36  Stat.,  102-5),  as  to 
foreign,  professional,  and  other  newspapers 
and  periodicals  for  Military  Academy;  Army 
appropriation  act,  March  3,  1909  (35  Stat., 
733),  as  to  subscriptions  from  the  appropria- 
tions for  the  Coast  Artillery  School,  Fort 
Monroe,  Va. ;  sundry  civil  appropriation  act, 
March  3, 1905  (33  Stat.,  1182),  as  to  subscrip- 
tions for  publications  for  use  in  the  Immi- 
gration Service  at  large;  agricultural  appro- 
priation act,  March  4,  1909  (35  Stat.,  1054), 
as  to  publications  for  use  of  Department  of 
Agriculture.  (This  prohibition  does  not 
apply  to  subscriptions  from  profits  on  sales 
by  ships  stores  in  the  Navv.  Comp.  Dec, 
Aug.  11,  1914,  file  26254-1571:2;  see  also 
act  June  24,  1910,  36  Stat.,  619.) 

Subscriptions  for  "periodicals"  required  for 
official  use  may  be  paid  in  advance. 
(Act  Mar.  4,  1915,  38  Stat.,  1049.) 

Hereafter  subscriptions  for  newspapers  and 
periodicals  for  the  naval  service  may  be 
paid  for  in  advance.  (Act  Mar.  3,  1915, 
38  Stat.,  929.) 


225 


Sec.  193. 


PL  2.  REVISED  STATUTES. 


Executive  Departments. 


"  No  executive  department  or  other  Government 
establishment  of  the  United  States  shall  ex- 
pend, in  any  one  fiscal  year,  any  sum  in 
excess  of  a])i)ro]>riations  nuule  by  Congress 
for  that  fiscal  year,  or  involve  the  Govern- 
ment in  any  contract  or  other  obligation  for 
the  future  payment  of  money  in  excess  of 
such  appropriations  unless  such  contractor 
obligation  is  authorized  by  law."  (Sec. 
367!),  R.  S.,  as  amended  by  act  Feb.  27, 
1906,  34  Stat.,  48;  see  also  section  3732, 
R.  S,,  as  amended  by  act  of  June  12,  1906, 
34  Stat.,  205.) 
Newspapers  are  not  periodicals  within 
the  meaning  of  act  of  March  15, 1898,  section  3  (30 
Stat.,  316),  providing  that  thereafter  periodicals 


for  the  use  of  any  executive  department  at  the 
seat  of  Government  shall  not  be  paid  for  from 
any  appro])riation  for  contingent  expenses  or 
for  any  s])ecili(;  or  general  purpose  uidess  spe- 
cifically authorized  by  the  law  granting  the  ap- 
])roi)riation.     (4  Comp.  Dec,  694.) 

Purchase  after  advertisement. — The 
Navy  Department  desires  that  all  newspapers 
and  periodicals,  both  American  and  foreign,  for 
the  Naval  Establishment,  for  use  on  shore,  both 
in  and  outside  the  continental  limits  of  the 
United  States,  except  such  as  may  be  purchased 
by  naval  attaches,  shall  be  purchased  after  ad- 
vertisement in  the  public  press.  (Circular, 
Oct.  6,  1914,  file  12809-83.) 


Sec.  193.  [Annual  report  of  expenditures  from  contingent  funds.]  The  head 
of  each  Department  shall  make  an  annual  report  to  Congress,  giving  a  detailed 
statement  of  the  manner  in  which  the  contingent  fund  for  his  Department,  and 
for  the  Bureaus  and  offices  therein,  has  been  expended,  giving  the  names  of 
every  person  to  whom  any  portion  thereof  has  been  paid;  and  if  for  anything 
furnished,  the  quantity  and  price;  and  if  for  any  service  rendered,  the  nature 
of  such  service,  and  the  time  employed,  and  the  particular  occasion  or  cause, 
in  brief,  that  rendered  such  service  necessary;  and  the  amount  of  all  former 
appropriations  in  each  case  on  hand,  either  in  the  Treasury  or  in  the  hands  of 
any  disbursing  officer  or  agent.  And  he  shall  require  of  the  disbursing  officers, 
acting  under  his  direction  and  authority,  the  return  of  precise  and  analytical 
statements  and  receipts  for  all  the  moneys  which  may  have  been  from  time  to 
time  during  the  next  preceding  year  expended  by  them,  and  shall  communicate 
the  results  of  such  returns  and  the  sums  total,  annually,  to  Congress. — (26  Aug., 
1842,  c.  202,  s.  20,  v.  5,  p.  527.) 


Shnilar  provisions  were  contained  in  acts  of 
June  20,  1874  (18  Stat.,  96);  March  3,  1875 
(18  Stat.,  355);  August  15,  1876  (19  Stat., 
156);  March  3,  1877  (19  Stat.,  306). _  _ 

For  complete  references  to  laws  requiring  re- 
ports to  be  made  by  Secretary  of  the  Navy, 
see  section  429,  Revised  Statutes,  and  note 
thereto. 

"All  appropriations  for  specific,  general,  and 
contingent  expenses  of  the  Navy  Depart- 
ment shall  be  under  the  control  and  ex- 
pended by  direction  of  the  Secretary  of  the 
Navy."     (Sec.  3676,  R.  S.) 

"No  moneys  appropriated  for  contingent,  in- 
cidental, or  miscellaneous  purposes  shall 
be  expended  or  paid  for  official  or  clerical 
compensation."    (Sec.  3682,  R.  S.) 

No  person  shall  be  employed  in  any  executive 
department  or  be  paid  from  any  appropria- 
tion made  for  contingent  expenses,  unless 
such  employment  is  authorized  and  pay- 
ment therefor  specifically  provided  in  the 
law  granting  the  appropriation.  (Act 
Aug.  5,  1882,  sec.  4,  22  Stat.,  255.) 

No  purchases  shall  be  made  from  the  contin- 
gent fund  of  any  department,  bureau,  or 
office,  except  upon  written  order  of  the 
head  of  the  department.    (Sec.  3683.  R.  S.) 


Expenditures  from  contingent  funds  for  news- 
papers, pamphlets,  periodicals,  or  other 
books  or  prints,  are  limited  by  section  1779, 
Revised  Statutes.  (See  note  to  sec.  192, 
R.  S.) 

Expenditures  from  contingent  funds  for  law 
books,  books  of  reference,  and  periodicals, 
are  prohibited,  unless  specifically  author- 
ized by  the  appropriation.  (Act  Mar.  15, 
1898,  sec.  3,  30  Stat.,  316.) 

Appropriations  for  contingent  expenses  must 
be  apportioned  by  monthly  or  other  allot- 
ments at  the  beginning  of  fiscal  year,  so  as 
to  prevent  deficiency  before  end  of  year; 
and  such  apportionment  must  be  adhered 
to,  under  penalty  of  summary  dismissal  and 
fine  or  imprisonment,  except  in  case  of 
extraordinary  emergency.  (Act  Feb.  27, 
1906,  34  Stat.,  48.) 

Use  of  contingent  funds  is  authorized  for  in- 
vestigations of  title  to  land  purchased  for 
navv  yards,  public  buildings,  etc.  (Sec. 
355,' R.  S.) 

Expenses  of  insane  persons  belonging  to  the 
Navy  or  Marine  Corps  may  be  paid  from 
annual  appropriation  for  naval  service  un- 
der head  of  contingent  eniunerated.  (Sec. 
1551,  R.  S.) 


226 


Executive  Departments.        Ft.  2.  REVISED  STATUTES. 


Sec.  197. 


Sec.  194.  [Report  of  clerks  employed.     Repealed.] 


This  section  read  as  follows: 

"Sec.  194.  The  head  of  each,  department 
shall  make  an  annual  report  to  Congress  of  the 
names  of  the  clerks  and  other  persona  that  have 
been  employed  in  his  department  and  the 
offices  thereof;  stating  the  time  that  each  clerk 
or  other  person  was  actually  employed,  and  the 
Bums  paid  to  each;  also,  whether  they  have 
been  usefully  employed;  whether  the  services 
of  any  of  them  can  be  dispensed  with  without 
detriment  to  the  public  service,  and  whether 
the  removal  of  any  individuals,  and  the  appoint- 
ment of  others  in  their  stead,  is  required  for  the 
better  dispatch  of  business. " — (26  Aug.,  1842,  c. 
202,  s.  11,  V.  5,  p.  525.) 

It  was  repealed  by  act  of  March  2,  1895, 
sections  (28  Stat.,  808). 

The  Secretary  of  the  Navy  is  required 
to  make  annual  report  to  Congress  of  civil- 
ians employed  on  clerical  duty  from  '  'Pay  of  the 
Navy,"  and  other  naval  appropriations  (act 
Jan.  30,  1885,  23  Stat.,  295);  and  is  required  to 
make  a  similar  report  of  the  number  and  com- 


pensation of  persons  employed  from  "Increase 
of  the  Navy"  and  other  general  appropriations 
(act  Apr.  17, 1900,  31  Stat.,  117);  also,  a  report  of 
persons  employed  for  technical  services  from  ap- 
propriations "Equipment  of  Vessels,"  "Steam 
Machinery, "  "Construction and  Repair,  "'"Ord- 
nance and  Ordnance  Stores,  "  and  from  appro- 
priations and  allotments  under  the  Bureau  of 
Yards  and  Docks.  (Act  Mar.  4,  1913,  37  Stat., 
768,  770,  771,  and  appropriation  acts  for  subse- 
quent years.) 

Heads  of  departments  are  required  to 
report  to  Congress  employees  detailed  to  other 
offices  in  accordance  with  section  166,  Revised 
Statutes,  as  amended.  (Act  Mar.  2,  1895,  sec. 
7,  28  Stat.,  808.)  Also  required  to  report 
number  of  employees  in  each  bureau  and  office 
below  a  fair  standard  of  efficiencv,  and  the 
salary  of  each.  (Act  Julv  11,  1890,  sec.  2,  26 
Stat.,  268.^ 

For  other  reports  required  of  the  Secretary 
of  the  Navy,  see  section  429,  Revised  Statutes, 
and  note. 


Sec.  195.  [Time  of  making  annual  reports  to  Congress.]  Except  where  a 
different  time  is  expressly  prescribed  by  law,  the  various  annual  reports  re- 
quired to  be  submitted  to  Congress  by  the  heads  of  Departments  shall  be  made 
at  the  commencement  of  eacli  regular  session,  and  shall  embrace  the  transac- 
tions of  the  preceding  year. — (See  all  acts  requiring  reports.) 


For  reports  required  to  be  made  by  the  Secre- 
tary of  Navy,  see  section  429,  Revised 
Statutes,  and  note. 


Neglect  or  refusal  of  any  officer  to  make  any 
report  within  the  time  prescribed  by  law  is 
punishable  bv  fine  of  not  more  than  .?1,000. 
(Sec.  101,  Criminal  Code,  act  Mar.  4,  1909, 
35  Stat.,  1107.) 

Sec.  196.  [Time  of  furnishing  annual  reports  to  printer.]  The  head  of  each 
Department,  except  the  Department  of  Justice,  shall  furnish  to  the  Congres- 
sional Printer  copies  of  the  docmnents  usually  accompanying  his  annual  report, 
on  or  before  the  first  day  of  November  in  each  year,  and  a  copy  of  his  annual 
report  on  or  before  the  third  Monday  of  November  in  each  year. — (25  June, 
1864,  c.  155,  ss.  1,  3,  v.  13,  pp.  184,  5;  22  June,  1870,  c.  150,  s.  12,  v.  16, 
p.  164.) 


The  above  section  was  amended  by  a  clause 
contained  in  the  sundrv  ci\dl  appropriation 
act  of  August  1,  1914  (38  Stat.,  680),  requir- 
ing that,  during  that  fiscal  year,  copy  be  fur- 
nished to  the  Public  Printer  as  follows: 
Copies  of  documents  accompanying  annual 
reports,  on  or  before  the  15th  day  of  Oc- 
tober; copies  of  annual  reports,  on  or  before 
the  15th  day  of  November;  and  complete 
revised  proofs  of  accompan\-ing  documents 
and  annual  reports,  on  the  10th  and  20th 
days  of  November,  respectively.  (30  Op. 
Atty.  Gen.,  293.)     This  provision  was  re- 

f)eated  in  the  sundry  civil  act  for  the  fol- 
owing  year,  and  was  made  permanent  by 


act  of  July  1,  1916  (39  Stat.,  336).  which 
further  requires  that  said  reports  and  ac- 
companying documents  be  printed,  made 
public  and  available  for  distribution  with- 
in the  first  five  days  after  the  assembling 
of  each  regular  session  of  Congress. 

Illustrations,  maps,  etc.,  are  to  be  excluded 
from  annual  reports,  except  such  as  are  nec- 
essary.    (Act  Aug.  30,  1890,  26  Stat.,  411.) 

Reports  are  not  to  be  distributed  with  "the 
compliments  "  of  any  officer  of  the  Govern- 
ment. (Act  Jan.  12,  1895,  sec.  73,  28  Stat., 
620;  act  Mar.  3,  1893,  27  Stat.,  612;  act 
Aug.  5,  1892,  27  Stat.,  388.) 


Sec.  197.  [Inventories  of  Department  property.]  The  Secretary  of  State, 
the  Secretary  of  the  Treasuiy,  the  Secretary  of  the  Interior,  the  Secretary  of 
War,  the  Secretary  of  the  Navy,  the  Postmaster-General,  the  Attorney-General, 


227 


Sec.  198. 


Pt.  2.  REVISED  STATUTES.         Executive  Departments. 


and  Commissioner  of  Agriculture  shall  keep,  in  proper  books,  a  complete  inven- 
tory of  all  the  property  belonging  to  the  United  States  in  the  buildings,  rooms, 
offices,  and  grounds  occupied  by  them,  respectively,  and  under  their  charge, 
adding  thereto,  from  time  to  time,  an  account  of  such  property  as  may  be 
procured  subsequently  to  the  taking  of  such  inventory,  as  well  as  an  account 
of  the  sale  or  other  disposition  of  any  of  such  property,  [except  suppUes  of 
stationery  and  fuel  in  the  public  offices  and  books,  pamphlets,  and  papers  in 
the  Library  of  Congress].— (15  July,  1870,  c.  300,  s.  1,  v.  16,  p.  364;  27  Feb., 
1877,  c.  69,  V.  19,  p.  241.) 

22  Stat.,  296.)  The  Bureau  of  Supplies  and 
Accounts  is  required  to  report  annually  to 
Congress  an  account  of  supplies  at  the  various 
stations  pertaining  to  the  Naval  Establish- 
ment.    (Act  Mar.  2,  1889,  25  Stat.,  817.) 

Disposition  of  useless  papers  in  executive 
departments  is  provided  for  by  act  of  Febru- 
ary 16,  1889  (25  Stat.,  672),  amended  by  act 
of  March  2,  1895  (28  Stat.,  933).  Other  pro- 
visions of  law  on  the  same  subject,  relating 
specifically  to  the  Navy,  are  contained  in 
act  of  February  16,  1909,  section  14  (35 
Stat.,  622),  act  of  August  22,  1912  (37  Stat., 
329),  and  naval  appropriation  act  of  March 
3,  1915  (38  Stat.,  929). 

On  general  subject  of  custody  of  public  property, 
see  note  to  section  161,  Revised  Statutes. 


This  section  was  amended  to  read  as  above  by 
act  of  February  27,  1877,  section  1  (19  Stat., 
241),  the  amendment  consisting  in  adding 
to  the  original  section  the  words  printed  in 
brackets. 

A  similar  provision  with  reference  to  the  Post 
Office  Department  is  contained  in  section 
397,  Revised  Statutes,  and  with  reference  to 
the  Capitol,  Botanical  Garden,  and  the  Pres- 
ident's House  in  section  1833,  Revised 
Statutes.  Both  of  these  sections  require  an 
annual  report  to  Congress  of  the  required 
inventory  and  account. 

The  Secretary  of  the  Navy  is  required  to  report 
to  Congress  armually  account  of  proceeds 
from  sales  of  public  property.  (Sees.  429, 
1541,  and  3672,  R.  S.,  and  act  Aug.  5,  1882, 


Sec.  198.  [Data  to  be  furnished  for  Biennial  Register.— Superseded.] 


This  section  provided  as  follows: 

"Sec.  198.  The  head  of  each  department 
shall,  as  soon  as  practicable  after  the  last  day 
In  September  in  each  year  in  which  a  new 
Congress  is  to  assemble,  cause  to  be  filed  in  the 
Department  of  the  Interior  a  full  and  complete 
list  of  all  officers,  agents,  clerks,  and  employees 
employed  in  his  department,  or  in  any  of 
the  offices  or  bureaus  connected  therewith. 
He  shall  include  in  such  list  all  the  sta- 
tistics peculiar  to  his  department  required 
to  enable  the  Secretary  of  the  Interior  to  pre- 
pare the  biennial  register." — (27  Apr.,  1816, 
Res.  No.  6,  s.  1,  v.  3,  p.  342;  3  Mar.,  1851,  c. 
32,  8.  1,  V.  9,  p.  600;  14  July,  1832,  Res.  No. 
11,  V.  4,  p.  608.) 


It-was  supersededbyactof  January  12, 1895, 
section  73  (28  Stat.,  618),  which  contained  de- 
tailed provisions  concerning  data  to  be  fur- 
nished the  Secretary  of  the  Interior  for  publi- 
cation in  the  "Official  Register  of  the  United 
States"  every  two  years.  By  act  of  June  7, 1906 
(34  Stat.,  219),  it  was  provided  that  "The  Direc- 
tor of  Census  shall  edit,  index,  and  publish  the 
Official  Register  of  the  United  States,  and  the 
provisions  of  existing  law  imposing  that  duty 
upon  the  Department  of  the  Interior  are  hereby 
repealed,  and  the  data  to  be  included  in  the 
Official  Register,  which  is  now  required  to  be 
transmitted  to  the  Secretary  of  the  Interior, 
shall  hereafter  be  transmitted  to  the  Director 
of  the  Census." 


228 


TITLE  yil. 
DEPARTMENT  OF  THE  TREASURY. 


Sec. 

233.  Establishment  of  Department  of  the 
Treasury. 

236.  Settlement  of  public  accounts. 

237.  Commencement  of  fiscal  year. 

248.  Forms  of  keeping  and  rendering  accounts, 
etc. 

250.  Settlement  of  accounts  within  fiscal  year. 

251.  Rules,  regulations,  and  forms. 
255.  Appointment  of  disbursing  agents. 

260.  Reports  upon  appropriations  for  Depart- 
ments of  War  and  Navy. 

264.  Report  of  Coast  Survey  expenditures. 

266.  Quarterly  publication  of  receipts  and  ex- 
penditures. 

268.  Comptrollers. 

269.  Duties  of  First  Comptroller. 

271.  Power  to  direct  settlement  of  accounts. 

272.  Report  of  officers  failing  to  make  settle- 

ment. 

273.  Duties  of  Second  Comptroller. 

274.  Arrears  of  pay  due  deceased  seamen. 

275.  Signing  bounty  certificates. 

276.  Auditors. 

277.  Duties  of  auditors. 


Sec. 

283.  Accounts  of  Departments  of  War  and  the 

Navy. 

284.  Accounts  of  pay  officer  of  lost  vessel. 

285.  Disbursements  by  order  of  commanding 

officer. 

286.  Fixing  date  of  loss  of  missing  vessels. 

287.  Accounts  of  seamen  on  lost  vessel. 

288.  Compensation  for  personal  effects  lost. 

289.  Payment  in  case  of  death. 

290.  Allowance  to  officers  for  personal  effects 

lost. 
297.  Auditors  may  administer  oaths. 

300.  Allowance  of  lost  checks. 

301.  Treasurer. 

303 .  Assistant  Treasurer. 

305.  Duties  of  the  Treasurer. 

306.  Liabilities    outstanding    three    or    more 

years. 

307 .  Vouchers  for  drafts  remaining  unpaid . 

308.  Payment  upon  presentation  of  outstanding 

drafts. 

309.  Accounts  of  disbursing  officers  unchanged 

for  three  years. 

310.  Annual  reports  of  disbursing  officers,  etc. 


CHAPTER  ONE. 
THE  DEPARTMENT. 

Sec.  233.  [Establishment  of  Department  of  the  Treasury.]  There  shall  be 
at  the  seat  of  Government  an  Executive  Department  to  be  known  as  the  De- 
partment of  the  Treasury,  and  a  Secretary  of  the  Treasury,  who  shall  be  the 
head  thereof.— (2  Sept.,  1789,  c.  12,  s.  1,  v.  1,  p.  65.) 

See  note  to  section  158  Revised  Statutes,  concerning  executive  departments  in  general. 

Sec.  236.  [Settlement  of  public  accounts.]  All  claims  and  demands  what- 
ever by  the  United  States  or  against  them,  and  all  accoimts  whatever  in  which 
the  United  States  are  concerned,  either  as  debtors  or  as  creditors,  shall  be  settled 
and  adjusted  in  the  Department  of  the  Treasury. — (3  March,  1817,  c.  45,  s.  2, 
V.  3,  p.  366.  U.  S.  V.  Mann,  1  Brock,  9  [should  be  2  Brock,  9].  Cooke  et  al. 
V.  U.  S.,  91  U.  S.,  389.) 


See  act  of  July  31,  1891  (28  Stat.,  205  et  seq.), 
relating  to  the  duties  of  Comptroller  of  the 
Treasury  and  Auditor  for  the  Navy  Depart- 
ment. 

Property  accounts. — Settlement  of,  is  provided 
for  by  act  of  March  29,  1894  (28  Stat., 
47). 

Inspection  of  books  and  records. — By  act  of 
March  15, 1898  (30  Stat.,  316),  it  is  provided 


that  "all  books,  papers,  and  other  matters 
relating  to  the  accounts  of  officers  of  the 
Government  in  the  District  of  Columbia 
shall  at  all  times  be  subject  to  inspection 
and  examination  by  the  Comptroller  of  the 
Treasury  and  the  Auditor  of  the  Treasury 
authorized  to  settle  such  accounts,  or  by 
the  duly  authorized  agents  of  either  of  said 
officials." 


229 


Sec.  236. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


Report  of  claims  allowed. — "The  Secretary  of 
the  Treasury  shall,  at  the  commencement 
of  each  session  of  Congress,  report  the 
amount  due  each  claimant  whose  claim  has 
been  allowed  in  whole  or  in  part  to  the 
Speaker  of  the  House  of  Representatives 
and  the  presiding  officer  of  the  Senate,  who 
shall  lay  the  same  before  their  respective 
houses  for  consideration."  (Act  July  7, 
1884,  23  Stat.,  254.) 

Report  of  delinquent  officers. — Provision  for 
annual  report  to  Congress  by  the  Secre- 
tary of  the  Treasury  of  officers  delinquent 
in  rendering  accounts  is  contained  in  act 
May  28,  1896,  section  4  (29  Stat.,  179). 

Assigmnent  of  claims  against  United  States  is 
restricted  by  section  3477,  Revised  Stat- 
utes; assignment  of  pay  by  enlisted  men, 
Navy ,  isperiuitted  by  section  1576,  Revised 
Statutes ;  to  be  discouraged  by  commanding 
officer,  section  1430,  Revised  Statutes;  al- 
lotment of  pay  by  officers.  Navy,  is  per- 
mitted by  act  of  June  10, 1896  (29  Stat.,  361) . 


I.  Scope  of  Section. 
II.  Jurisdiction  of  Accounting  Officers. 

III.  Limitations  upon  Jurisdiction. 

IV.  Jurisdiction,     Accounting     Officers 

AND  Federal  Courts. 
V.  Jurisdiction,     Accounting    Officers 
AND  Heads  of  Executive  Depart- 
ments. 
VI.  Set-off. 

VII.  Effect  of  Accounting  Officers'  Ac- 
tion. 
VIII.  Reopening  of  Accounts. 
IX.  Mandamus    Proceedings   to    Compel 
Payments. 


I.  Scope  of  Section. 

Applies  only  to  Treasury  Department 
proper. — All  claims  against  the  United  States 
are  to  be  settled  and  adjusted  in  the  Treasury 
Department;  and  that  is  located  "at  the  seat 
of  Government."  The  assistant  treasurer  in 
New  York  is  a  custodian  of  public  money, 
which  he  may  pay  out  or  transfer  upon  the 
order  of  the  proper  department  or  officer;  but 
he  has  no  authority  to  settle  and  adjust — that 
is  to  say,  to  determine  upon  the  validity  of, 
any  claim  against  the  Government.  He  can 
pay  only  after  the  adjustment  has  been  made 
"in  the  Department  of  the  Treasury,"  and  then 
upon  drafts  drawn  for  that  purpose  by  the 
Treasurer.     (Cooke  v.  U.  S.,  91  U.  S.,  399.) 

Ofl&cers  charged  ■«rith.  execution  of  sec- 
tion.— The  principal  officers  to  whom  the 
great  responsibility  of  settling  and  adjusting 
accounts  under  this  section  is  committed  by 
law  are  called  "accounting  officers,"  which  in- 
cludes the  auditors,  each  acting  separately 
upon  different  classes  of  accounts,  and  the 
Comptroller  of  the  Treasury.  The  different 
processes  in  the  settlement  of  claims  and  de- 
mands upon  the  Government,  from  their  re- 
ceipt by  the  auditor,  through  the  several  stages 


of  examination,  certification,  and  drawing  of 
warrants  for  payment,  up  to  the  time  when  the 
Treasurer  issues  his  drafts,  are  all  matters  of 
accounting  to  justify  the  Treasurer  in  paying 
out  the  public  money,  and  are  not  consummated 
beyond  recall  until  the  claimants  receive  the 
negotiable  drafts  of  that  officer,  drawn,  accord- 
ing to  the  convenience  of  the  parties,  upon  the 
Treasury  proper,  in  Washington,  or  upon  one 
of  the  several  assistant  treasurers  or  designated 
depositaries  in  other  places.  (McKnight's 
case,  13  Ct.  Cls.,  305;  affirmed  98  U.  S.,  179.) 

"Accounting  officers  "  is  a  phrase  well  known 
as  referring  to  the  auditors  and  Comptroller 
of  the  Treasury,  who  pass  upon  all  claims 
against  the  Government  before  they  can  be, 
paid  out  of  the  Public  Treasury.  (Moncure  v.' 
Zunts,  11  Wall.,  416,  422.) 

In  matters  of  accounting,  the  several  public 
officers  act  independently  of  each  other,  al- 
though the  Secretary  of  the  Treasury,  being  the 
head  of  the  department,  has  a  right  generally 
to  control  or  revise,  to  some  extent,  the  action 
of  others  in  subordinate  official  positions,  and 
the  Comptroller  has  some  power  over  an 
auditor  and  is  not  bound  by  the  action  of  that 
officer  which  is  certified  to  him.  (McKnight's 
case,  13  Ct.  Cls.,  306,  307;  affirmed 98  U.  S.,  179.) 

The  Secretary  of  the  Treasury  may,  when  in 
his  judgment  the  interests  of  the  Government 
require  it,  suspend  payment  and  direct  the  re- 
examination of  any  account.  (Act  July  31, 
1894,  sec.  8,  28  Stat.,  207.) 

Section  236,  Revised  Statutes,  must  be  con- 
strued in  connection  with  sections  273-277,  Re- 
vised Statutes,  which  specify  the  jurisdiction 
of  the  accounting  officers.  (Dig.  Dec.  Second 
Comptroller,  v.  3,  par.  735.) 

The  general  provision  of  law  governing  the 
manner  of  settling  claims  against  the  Govern- 
ment is  found  in  section  236,  Revised  Statutes. 
This  section  was  taken  from  section  2  of  act  of 
March  3,  1817  (3  Stat.,  366),  and  ^vithout  detail- 
ing the  minor  changes  which  have  been  made  in 
special  cases,  it  is  suflicieut  to  state  that  the  law 
has  continued  substantially  the  same  ever  since. 
This  power  of  the  Treasury  Department  to  settle 
claims  against  the  United  States  is  exercised 
by  the  accounting  officers,  and  under  the  pres- 
ent law  the  Auditor  for  the  Navy  Department 
is  charged  with  the  duty  of  settling  all  claims 
arising  under  the  naval  establishment.  (4 
Comp.  Dec,  587.) 

Tills  section  provides  that  all  claims  and  de- 
mands against  and  by  the  United  States  shall 
be  settled  and  adjusted  in  the  Treasury  Depart- 
ment, and  by  section  7  of  the  act  of  July  31, 1894 
(28  Stat.,  206),  the  Auditor  for  the  Navy  De- 
partment shall  receive  and  examine  all  ac- 
counts of  the  naval  establishment.  The  intent 
of  these  laws  is  that  bona  fide  claimants  shall 
have  their  claims  considered  by  the  account- 
ing officers.  (Comp.  Dec,  Dec.  17,  1904,  46 
S.  and  A.  Memo.,  459.) 

Status  of  accounting  officers. — The  ac- 
counting officers  do  not  constitute  a  "depart- 
ment" within  the  meaning  of  a  law  referring 
to  claims  "rejected  or  reported  on  adversely 
by  any  court,  department,  or  commission  au- 
thorized to  hear  and  determine  the  same." 
(U.  S.  V.  Harmon,  147  U.  S.,  273.) 


230 


Treasury  Department. 


Ft.  2.  RE  VISED  S  TA  T UTES.. 


Sec.  236. 


The  accounting  officers  of  the  Treasury  are 
neither  contracting  nor  disbursing  officers.  In 
the  case  of  disbursing  officers,  the  policy  of  the 
Government  has  been  to  acknowledge  no  pay- 
ments as  made  on  its  behalf  save  those  wliich 
were  authorized  by  law.  However,  where  the 
accounting  officers  of  the  Treasury  have  juris- 
diction to  settle  an  account  or  claim  against  the 
Government,  a  mistake  of  law  committed  inci- 
dentally in  the  adjustment  will  not,  after  pay- 
ment of  the  balance  found  to  be  due,  affect  the 
finality  of  the  settlement  or  entitle  the  Govern- 
ment to  recover  back  the  money  paid  in  mis- 
take of  law.  (McKee  v.  U.  S.,  12  Ct.  Cls.,  533, 
534;  reversed  on  other  grounds,  97  U.  S.,  233.) 
See  below  "  \"III,  Reopening  of  accounts." 

Under  a  special  statute  providing  that  the 
accounting  officers  shall  "settle  and  adjust"  a 
claim  therunder,  the  duties  of  the  accounting 
officers  were  administrative,  not  judicial,  and 
the  Court  of  Claims  was  not  divested  of  juris- 
diction over  said  claim.  (McLean  v.  U.  S., 
226  U.  S.,  374,  378,  citing  Medbury  v.  U.  S., 
173  U.  S.  492.) 

Itemized  accounts  required. — For  the  ex- 
penditure of  all  public  moneys  it  is  the  invaria- 
ble rule  to  require  that  accounts  shall  be  item- 
ized as  far  as  practicable,  in  order  that  the  ac- 
counting officers  may  properly  audit  them. 
The  law  may  permit  the  exercise  of  discretion 
in  the  use  of  public  funds  without  dispensing 
with  the  usual  requirement  of  an  itemized  ac- 
count showing  fully  for  what  purposes  the 
money  has  been  expended.  (4  Comp.  Dec, 
159;  4  Comp.  Dec,  271.) 

The  rules  prescribed  by  the  Treasury 
Department  for  the  adjustment  of  claims 
against  the  Government  will,  if  reasonable,  be 
regarded  by  the  courts;  but  if  these  rules  go  to 
a  complete  denial  of  justice  to  the  individual 
the  court,  if  it  have  jurisdiction  of  the  subject, 
can  not  disregard  the  rights  of  tlie  parties. 
(U.  S.  V.  Maun,  26  Fed.  Cas.  No.  15716,  per  Mar- 
shall, C.  J.) 

Taking  security  for  debt  to  the  Govern- 
ment.— It  is  not  generally  within  the  duties 
of  public  officers  to  take  collateral  security,  and 
whenever  they  do  so  they  are  usually  acting 
beyond  the  scope  of  their  official  authority  and 
the  United  States  are  not  bound  by  their 
agreements.  However,  where  public  officers, 
looking  to  the  best  interests  of  the  Government, 
do  sometimes  accept  such  security  without  re- 
leasing the  debtors  or  subjecting  the  United 
States  to  liability,  in  so  far  as  the  arrangements 
are  consummated  for  the  benefit  of  the  Gov- 
ernment they  may  l^e  upheld,  and  the  officers 
commended  for  their  vigilance  and  zeal  in  the 
public  service.  (Taggart  v.  U.  S.,  17  Ct.  Cls., 
322.)  _ 

Claims  against  Government  voluntarily 
settled  from  private  funds. — A  naval 
militia  officer  who  voluntarily  pays  an  obliga- 
tion of  the  United  States  is  not  entitled  to 
reimbursement  from  the  Government.  (Comp. 
Dec,  Feb.  17,  1915,  Appeal  No.  24365,  file 
26254-1709,  citing  4  Comp.  Dec,  409;  6 
Comp.  Dec,  594;  8  Comp.  Dec,  584;  11  Comp. 
Dec,  486;  12Comp.Dec,48.)  [In  a  reconsider- 
ation in  this  case  May  22, 1915,  it  was  held  that, 
owing  to  exceptional  circumstances,  reimburse- 


ment should  be  allowed,  applying  18  Comp. 
Dec,  299,  holding  that  "Anofficer  of  the  United 
States  is  not,  ordinarily,  authorized  to  advance 
his  private  funds  in  payment  of  any  claim 
against  the  United  States  except  for  expenses 
incurred  by  him  personally  for  travel  or  other 
personal  expense  allowed  by  the  terms  of  his 
employment.  But  this  is  a  rule  of  accounting 
and  should  not  be  permitted  to  hinder  the  pub- 
lic business  or  prevent  the  payment  of  just  and 
lawful  claims  against  the  Government."] 

II.  Juris DicTioisr   op  Accounting   Officers. 

In  general. — Substantially  all  accounts 
must  pass  under  the  eye  and  receive  the  ap- 
proval of  the  accounting  officers  of  the  Treas- 
ury. Even  the  accounts  of  the  Secretary  of 
the  Treasury  and  of  the  President  come  to  them 
for  allowance.  The  business  of  the  account- 
ing officers  ia  to  determine  what  payments 
shall  or  shall  not  be  made  on  behalf  of  the 
United  States.  These  functions  of  office  were 
a  part  of  the  wondrous  birth  of  the  Treasury 
system,  and  have  remained  unchanged  from 
the  foundation  of  the  Government  to  the  pres- 
ent time.  It  is  well  known  that  the  Comp- 
trollers have  sometimes  construed  statutes  in 
one  way  and  the  courts  subsequently  in  another. 
Such  diversity  of  judgment  is  inevitable  in  the 
administration  of  human  affairs,  and  the  wonder 
is  that  there  has  been  so  little  of  it  on  the  part 
of  these  officers.  (McKee  v.  U.  S.,  12  Ct.  Cls., 
532,  534;  reversed  on  other  grounds,  97  U.  S., 
233.) 

The  law  devolves  upon  the  accounting  offi- 
cers of  the  Treasury  the  duties  of  examining, 
settling,  and  adjusting  all  accounts,  claims  and 
demands  in  which  the  United  States  are  con- 
cerned, either  as  debtors  or  as  creditors,  and  to 
certify  balances  arising  thereon;  their  exercise 
of  such  duties  includes  the  weighing  of  evi- 
dence, the  construction  of  statutes,  and  the 
application  of  general  principles  of  law  in  con- 
nection therewith.  (5  Comp.  Dec,  410;  14 
Comp.  Dec,  169.) 

It  IS  the  theory,  and  a  wise  one,  upon  which 
the  final  adjustment  and  settlement  of  accounts 
in  the  Treasury  Department  is  founded,  that 
the  officers  who  pass  upon  them  shall  be  wholly 
distinct  from  those  who  expend  the  money  or 
incur  the  liabilities.  For  the  manner  in  which 
these  latter  officers  perform  the  trust  imposed 
upon  them  they  alone  are  responsible;  the 
Comptroller  is  only  charged  with  the  duty  of 
seeing  that  they  keep  within  the  law.  (Waters -y. 
U.  S.,  21  Ct.Cls.,  38.) 

The  organization  of  the  Department  of  the 
Treasury  is  comprehensive,  thorough,  and 
exact;  it  is  supplied  not  only  with  skilled 
accountants  but  special  law  officers,  and  be- 
sides has  on  i)roper  occasions  the  right  to  call 
in  aid  the  opinion  of  the  Attorney  General  of 
the  United  States;  it  seems  fully  equipped  for 
the  discharge  of  every  fiscal  duty  and  exigency. 
(State  of  Mississippi  v.  Durham,  4  Mackey 
(D.  C),  237.) 

The  accounting  system  of  the  Treasury  is  one 
of  the  oldest,  best  known,  and  most  highly 
esteemed  parts  of  our  governmental  machinery. 
To  its  scrutiny  all  accounts  are  subjected  of  per- 


231 


Sec.  236. 


Ft.  2.  REVISED  STATUTES. 


Treasury  Department. 


eons  having  business  or  financial  relations  with 
the  Government,  from  the  President  to  the 
pmallest  contractor.  (Dennison  v.  U.  S.,  25 
Ct.  Cls.,  320.) 

The  machinery  of  the  Treasury  Department 
for  the  adjustment  of  accounts  is  only  adapted 
to  the  passing  upon  ordinary  accounts  upon 
which  controversies  are  not  expected  to  arise 
to  any  great  extent,  and  not  at  all  beyond  the 
means  of  adjusting  from  the  records  and  files  of 
the  several  departments.  One  of  the  primary, 
most  important,  and  most  useful  objects  to  be 
attained  in  establishing  the  Court  of  Claims  was 
to  provide  a  tribunal  where  claims  against  the 
Government  should  be  determined  upon  legal 
evidence,  taken  under  the  forms  and  subject  to 
the  rules  of  law,  which  they  are  not  and  never 
can  be  in  the  process  of  accounting  in  the  Treas- 
ury Department.  (McKnight's  case,  13  Ct. 
Cls.,  310;  affirmed  98  U.  S.  179.) 

Judgments  of  Court  of  Claims. — Even 
the  judgments  of  the  Court  of  Claims  rnustpass 
through  the  same  processes  of  accounting,  not 
for  the  purpose  of  review,  but  to  justify  the 
Treasiu-er  in  issuing  his  draft  for  the  payment 
thereof;  and  that  is  what  all  the  long  process  of 
accounting  leads  to.  (McKnight's  case,  13  Ct. 
Cls.,  309;  affirmed  98  U.  S.  179.) 

It  is  the  duty  of  the  Secretary  of  the  Treasury 
to  pay  judgments  of  the  Court  of  Claims;  this 
section  does  not  confer  power  upon  him  to  go 
behind  the  judgment.  The  accounting  officers 
have  no  authority  to  reexamine  the  judgment, 
which  is  conclusive  as  to  everything  it  em- 
braces. (U.  S.  V.  Jones,  119  U.  S.,  477;  see  also 
Meigs  V.  U.  S.,  20  Ct.  Cls.  181;  U.  S.  v.  O'Grady, 
22  Wall.,  641;  Wis.  Cent.  R.  R.  Co.  v.  U.  S., 
164  U.  S.,  190.) 

Public  money. — The  pay  and  allowances  of 
midshipmen  coming  out  of  the  general  fund  of 
the  Treasury  is  public  money  to  start  with,  and 
it  will  remain  public  money  until  it  passes 
from  the  absolute  control  of  the  Government. 
Accordingly,  held  that  funds  received  by  a 
naval  pay  officer  as  commissary  officer  of  the 
midshipmen's  mess  at  the  Naval  Academy  are 
public  funds,  and  that  he  should  be  required  to 
account  for  the  proper  disbursement  thereof  to 
the  accounting  officers  of  the  Treasury,  the  same 
aa  any  other  public  money  placed  in  his  hands 
for  disbursement  in  his  official  capacity.  (14 
Comp.  Dec,  680.)  This  decision  is  not  affected 
by  the  fact  that  the  midshipmen  receipt  on  the 
pay  roll  for  their  proportionate  share  of  the  cost 
of  running  the  midshipmen's  mess;  the  pay- 
master does  not  in  fact  pay  this  money  to  the 
midshipmen  but  pays  it  to  himself  as  commis- 
sary of  the  mess  and  accounts  for  it  as  such  com- 
missary; a  receipt  for  money  by  a  midshipman 
which  he  did  not  actually  receive  is  not  a  good 
acquittance  to  the  Government.  It  therefore 
becomes  necessary  to  show  by  other  evidence 
what  he  actually  received,  and  tliis  is  accom- 
plished by  requiring  the  commissary  officer  to 
render  an  accounting  of  the  funds  paid  to  him 
from  the  pay  and  rations  due  the  midshipmen 
and  expended  by  him  for  their  benefit.  (Comp. 
Dec,  Dec.  31,  1908,  94  S.  and  A.  Memo.,  923.) 
[The  Navy  Regulations  forbid  disbursing  offi- 
cers to  require  receipts  in  advance  of  actual 


payment.  (Art.  R-4303  (2),  Navy  Regs.  1913; 
see  also  art.  R-4384,  (3).)] 

Under  Navy  regulations  prior  to  July  1,  1907 
(revoked  byG.  O.  No.  44,  Apr.  16, 1907),  the  com- 
mutation value  of  rations  due  enlisted  men  was 
credited  by  the  pay  ofiicer  to  himself  as  such, 
and  debited  against  himself  as  commissary  offi- 
cer in  charge  of  the  general  mess,  composed  of 
such  enlisted  men,  the  money  never  actually 
leaving  the  pay  officer's  hands  until  finally  paid 
out  in  the  shape  of  mess  expenditures  and  not 
being  paid  over  to  the  individual  enlisted  men 
who  composed  the  mess.  It  was  held  by  the 
Comptroller  of  the  Treasury  that  such  commu- 
tation money  in  the  hands  of  the  pay  officer  was 
public  money  until  actually  expended  by  him, 
and  he  should  be  required  to  account  for  its 
proper  disbursement  to  the  accounting  officers 
of  the  Treasury,  the  same  as  any  other  public 
money  placed  in  his  hands  for  disbursement 
in  his  official  capacity.  (12  Comp.  Dec,  678; 
see  also  94  S.  and  A.  Memo.,  923.) 

A  sum  of  $24,500  was  advanced  from  the  ap- 
propriation ' '  Pay  of  the  Navy  "  in  1867  and  1868 
for  the  purpose  of  conducting  a  midshipmen's 
store  at  the  Naval  Academy;  accumulated 
profits  from  this  investment  amounted  in  1908 
to  about  $31,000:  Held,  that  the  total  sum,  rep- 
resenting the  original  amount  and  the  profits 
thereon,  belongs  to  the  Government  and  is 
public  money,  although  the  establishment  of 
this  fund  and  its  maintenance  was  without 
authority  of  law;  further  held  that  such  funds 
should  be  accounted  for  to  the  Treasury  De- 
partment.    (14  Comp.  Dec,  680.) 

The  proceeds  from  sale  of  garbage  from  a 
receiving  ship,  including  that  from  the  general 
mess,  is  public  money  and  must  be  covered 
into  the  Treasury  under  the  provisions  of  sec- 
tion 3618  of  the  Revised  Statutes  as  "Miscel- 
laneous receipts. "     (19  Comp.  Dec,  450.) 

The  profits  from  sales  made  by  ships'  stores  in 
the  Navy,  as  authorized  by  act  of  June  24,  1910 
(36  Stat.,  619),  are  not  public  money  within  the 
meaning  of  section  3648  of  the  Revised  Statutes. 
(Comp.  Dec,  Aug.  11,  1914,  file  26254-1571:2; 
see  also  file  26254-1759,  Apr.  20,  1915.) 

For  other  cases  see  note  to  section  1383,  Re- 
vised Statutes,  under  "IX.  Liability  of  Sure- 
ties." 

III.  Limitations  Upon  Jurisdiction. 

Jurisdiction  limited  by  language  of 
statutes  in  special  cases. — This  section  un- 
doubtedly gives  to  the  Treasury  Department 
the  settlement  of  all  disputed  money  claims  but 
it  is  entirely  competent  for  Congress  to  alter  this 
arrangement,  and  it  has  repeatedly  done  so. 
Where  ( 'ongress  expressly  provides  that  before 
payment  a  claim  shall  be  "examined  and  set- 
tled by  the  Secretary  of  War,"  the  obvious 
construction  is  that  in  the  case  referred  to  the 
decision  of  the  Secretary  of  War  was  to  be  the 
final  adjudication.  (16  Op.  Atty.  Gen.,  492; 
affirmed  19  Op.  Atty.  Gen.,  387.)  [But  noth- 
ing short  of  a  clear  intent,  unequivocally  ex- 
pressed in  a  statute,  will  warrant  a  court  ia  hold- 
ing that  the  involved  accounts  of  a  public 
officer  are  not  to  be  settled  at  the  Treasury  aa 
other  public  accounts  are  settled,  or  that  Con- 


232 


Treasury  Department. 


Pt.2.  RE  VISED  STAT  UTES . 


Sec.  236. 


grass  has  intended  to  create  an  extraordinary 
exception  to  the  accounting  system  of  the 
United  States  where  no  need  of  such  exception 
exists  and  where  none  is  in  terms  declared. 
Dennison  v.  U.  S.,  25  Ct.  Cls.,  321.] 

The  word  "settle ' '  means  to  adjust,  liquidate, 
balance  or  pay.  (15  Comp.  Dec,  557,  citing 
Applegate  v.  Baxley,  93  Ind.,  149.)  Where 
Congress  provided  that  the  "settlement"  of 
certain  claims  "shall  be  under  the  direction  of 
the  Commissioner  of  Pensions, "  held  that  the 
word  "settlement"  was  used  in  the  sense  of 
an  adjustment,  liquidation  and  payment  of  the 
claim,  and  that  the  effect  of  the  act  was  to 
transfer  to  the  Commissioner  of  Pensions  the 
power  to  adjust  and  settle  the  claims  referred 
to,  and  to  that  extent  to  deprive  the  accounting 
ofhcersof  the  general  jurisdiction  to  settle  such 
claims,  conferred  by  this  section ;  that  the  final 
payments  as  made  under  the  direction  of  the 
Commissioner  of  Pensions  would,  of  course, 
come  before  the  accounting  officers  for  settle- 
ment; but  such  settlement  would  only  involve 
the  allowance  of  credit  for  the  payment  of  an 
adjusted  claim,  and  not  the  settlement  of  the 
claim  itself.     (15  Comp.  Dec,  557.) 

Where  Congress,  by  act  of  May  13,  1908  (35 
Stat.,  128)  provided  that,  upon  the  existence  of 
certain  facts,  tlie  Paymaster  General  of  the 
Navy  "shall  cause  to  be  paid  "  a  gratuity  to  the 
beneficiary  of  a  deceased  officer  or  enlisted  man 
of  the  Navy  or  Marine  Corps,  and  that  the  Sec- 
retary of  the  Navy  shall  establish  regulations 
requiring  each  officer  and  enlisted  man  to  desig- 
nate the  "proper  person"  to  whom  the  amount 
should  be  paid,  it  was  held  by  the  Na\'y  De- 
partment that  the  decision  of  the  Paymaster 
General,  that  the  facts  necessary  to  authorize 
payment  did  not  exist  in  a  given  case,  was 
necessarily  conclusive  of  the  question,  except 
for  the  right  of  the  claimant  to  appeal  from  the 
action  of  the  Paymaster  General  to  the  Secre- 
tary of  the  Na\"y;  and  that  the  Auditor  for  the 
Navy  Department  did  not  have  jurisdiction  to 
review  the  decision  of  the  Pa>Tnaster  General. 
(File  26543-66,  Sept.  S  and  9,  1911;  compare  22 
Comp.  Dec,  532;  file  26543-148.) 

In  all  cases  the  officer  charged  by  statute  with 
the  duty  of  allowing  or  disallowing  a  claim  in 
his  discretion,  or  according  to  his  judgment, 
must  first  act,  before  the  claimant's  right  is 
fixed.  Then,  when  he  has  obtained  a  decision 
in  his  favor,  the  claimant's  demand,  of  which 
that  decision  is  prima  facie  if  not  conclusive 
determination,  if  the  officer  acts  within  the 
scope  of  his  authority  and  in  accordance  with 
the  provisions  of  law,  may  be  the  foundation 
of  an  action  in  the  Court  of  Claims,  or  may  pass 
the  accounting  officers  and  be  paid  by  draft 
upon  warrant  duly  issued,  as  in  other  cases. 
(McKnight's  case,  13  Ct.  Cls.,  309;  affirmed  98 
U.  S.,  179.) 

By  act  of  March  2,  1895  (28  Stat.,  768)  it  was 
provided  that  "all  paymei^ts  made  out  of  the 
contingent  fund  of  the  House  of  Repre.senta- 
tives,  upon  vouchers  approved  by  said  tempo- 
rary committee  on  accounts,  shall  be  deemed, 
held  and  taken  and  are  hereby  declared  to  be 
conclusive  upon  all  the  departments  and  audit- 
ing officers  of  the  government."  Held,  that  the 
Comptroller  of  the  Treasury  has  no  jurisdiction 


to  render  a  decision  upon  any  question  involved 
in  the  payment  of  accounts  which  have  been  so 
approved  by  the  temporary  committee  on  ac- 
counts; that  Congress  intended  by  the  pro- 
vision above  quoted  to  place  upon  said  com- 
mittee the  fuial  responsibility  of  approving  all 
payments  to  be  made  from  the  contingent  fund 
of  the  House  of  Representatives,  and  to  make 
their  action  conclusive.     (2  Comp.  Dec,  24.) 

The  certificate  of  the  Speaker  of  the  House  of 
Representatives  as  to  the  salary  and  mileage  of 
members,  beingby  law  (sees.  47,48,  R.S.)made 
conclusive  upon  all  departments  of  the  Govern- 
ment, the  Comptroller  has  no  jurisdiction  to  ren- 
der a  decision  upon  the  amount  due  to  a  mem- 
ber for  salary  or  mileage.     (2  Comp.  Dec,  339.) 

The  naval  appropriation  act  of  June  24,  1910 
(36  Stat.,  619),  provided  that  profits  from  sales 
by  ships'  stores  in  the  Navy  should  be  ac- 
counted for  to  the  Bureau  of  Supplies  and  Ac- 
counts, Navy  Department.  In  view  of  this 
provision,  the  Comptroller  of  the  Treasury  is 
without  jurisdiction  to  render  a  decision  as  to 
the  legality  of  proposed  expenditures  from  this 
fund.  (Comp.  Dec,  Apr.  28,  1915,  file  262-54- 
1759:2.) 

The  accounting  officers  are  without  jurisdic- 
tion to  receive  and  settle  claims  of  individual 
officers  and  enlisted  men  of  the  organized  militia 
for  pay  while  engaged  in  field  or  camp  service 
for  instruction,  and  are  without  revisory  power 
in  such  cases.  The  officers  and  men  must  look 
to  the  State,  Territory,  or  District  of  Columbia 
in  whose  service  they  are  engaged;  when  the 
United  States  turns  over  to  the  State,  Territory 
or  District  of  Columbia  its  allotted  portion  of 
the  appropriation  made  by  Congress  for  the 
militia,  the  disbursing  officer  is  accountable  in 
case  he  pays  out  said  money  for  purposes  other 
than  that  for  which  it  was  appropriated  by 
Congress;  but  if  he  refuses  to  pay  officers 
and  enlisted  men  of  the  militia  money  to 
which  they  are  entitled,  they  can  not  present 
individual  claims  and  have  them  paid  through 
the  accounting  officers.  The  accounting  officers 
are  without  jurisdiction  to  compel  the  disburs- 
ing officer  to  make  any  payment  or  to  afford 
said  officers  and  enlisted  men  any  remedy.  (10 
Comp.  Dec,  635.)  [But  this  does  not  apply  to 
pay  due  the  naval  militia  for  joint  service  or 
maneuvers  with  the  Navy,  as  pa\Tnents  in  such 
cases  are  not  required  to  be  made  through  the 
disbursing  officer  of  the  naval  militia  organiza- 
tions. (Com]).  Dec,  June  20,  1914,  file  3973- 
64:2,  and  see  act  Feb.  16, 1914,  sec.  12,  38  Stat., 
286,  later  repealed).] 

No  jurisdiction  to  determine  whether 
deductions  shall  be  made  from  pay  of 
public  ofl3.cers  on  account  of  alleged  in- 
debtedness.— The  Comptroller  of  the  Treasury 
is  authorized  by  law  (act  July  31,  1894,  sec  8, 
28  Stat.,  207)  to  render  decisions  upon  ques- 
tions of  payment  to  be  made  by  disbursing 
officers  of  the  Government.  But  the  law  con- 
fers no  such  function  upon  the  Comptroller  nor 
upon  an  auditor  as  deciding  that  the  pay  of 

Eublic  officers  fixed  by  statute  should  be  with- 
eld  on  account  of  alleged  indebtedness  of  such 
officers  to  the  United  States.  When  such  in- 
debtedness is  denied  by  the  officer  to  whom 
salary  is  lawfully  due,  the  matter  is  one  for  judi- 


233 


Sec.  236. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


cial  rather  than  administrative  determination, 
and  a  decision  of  tlie  Comptroller  rendered  in 
such  case  is  extraothcial,  not  required  by  law, 
and  affords  no  warrant  for  the  action  of  the  dis- 
bursinji;  oliicer  in  withholding^  the  olhcer's 
salary,  in  whole  or  in  part.  Payment  of  salary 
in  such  case  may  be  enforced  by  mandamus 

Eroceedins^,  and  the  othcer  is  not  required  to 
ring  suit  in  the  Court  of  Claims.  (Smith  v. 
Jackson,  241  Fed.  Rep.,  747;  affirmed  246  U.  S., 
388.) 

Jurisdiction,  limited  to  accounts.— The 
terms  "debtors"  and  "creditors"  used  in  this 
section  limit  and  qualify  the  nature  of  the 
claims  and  demands  which  are  to  be  settled  and 
adjusted  in  the  Treasury  Department.  The 
assumption  of  the  adjudication  of  private  claims 
against  the  government  by  the  accounting 
officers,  except  as  incident  to  the  settlement  of 
accounts,  or  except  when  authorized  by  private 
act,  would  impair  their  functions  and  defeat 
the  real  object  for  which  their  offices  were 
created.  (Dig.  Dec.  Second  Comp.  v.  3,  par. 
735.) 

Where  the  Paymaster  General  of  the  i\avy 
declined  to  pay  a  claim  for  death  gratuity  under 
the  act  of  May  13,  1908  (35  Stat.,  128),  there  was 
nothing  in  any  account  which  had  been  ren- 
dered to  the  auditor  upon  which  that  officer 
could  review  the  action  of  the  Paymaster  Gen- 
eral. Accordingly,  held  that  the  Auditor  for  the 
Navy  Department  did  not  have  jurisdiction  to 
settle  and  adjust  the  claim  in  this  case,  although 
claimant  took  the  matter  up  with  the  auditor's 
office;  that  under  the  law  the  duties  of  the 
auditor  relate  to  the  examination  of  accounts 
and  the  certification  of  balances;  that  if  pay- 
ment had  been  made  to  the  beneficiary  in  this 
case  of  a  less  sum  than  claimed,  the  accounts, 
including  the  payment  of  such  amount,  would 
be  before  the  auditor,  but  such  was  not  the  fact, 
as  no  payment  at  all  had  been  made;  and  that 
claimant's  appeal  was  to  the  Secretary  of  the 
Navy  from  the  Paymaster  General's  action  and 
not  to  the  accounting  officers  of  the  Treasurv. 
(File  26543-66,  Sept.  8,  1911.) 

Property  accounts. — The  settlement  of 
property  accounts  is  provided  for  by  act  of  March 
29,  1894  (28  Stat.,  47).  Under  said  act,  the  juris- 
diction of  the  accounting  officers  does  not  ex- 
tend back  of  the  decision  of  the  officer  whose 
duty  it  is  to  audit  property  accounts  in  each 
department  [in  the  Navy  Department,  the  Pay- 
master General  of  the  Navy,  and  the  quarter- 
master of  the  Marine  Corps];  and  where  such 
officer  has  fixed  the  responsibility  for  loss  or 
damage  to  property,  and  ascertained  its  value 
and  certified  a  charge  against  the  responsible 
officer  to  the  accounting  officers,  it  is  not  within 
the  jurisdiction  of  the  accounting  officers  to  re- 
move the  charge.  (Comp.  Dec,  May  13,  1908, 
87  S.  and  A.  Memo.,  703;  Comp.  Dec,  July  26, 
1915,  173  S.  and  A.,  Memo.,  3728.)  Appeal 
in  such  cases  arising  in  the  Navy  or  Marine 
Corps,  may  be  taken  to  the  Secretary  of  the 
Navy  who  has  jurisdiction  to  cause  the  charge 
to  be  removed.  (File  18140-10:2,  May  16, 
1911.) 

The  effect  of  said  act  of  March  29,  1894,  was 
to  divest  the  auditor  of  the  jurisdiction  there- 
tofore possessed  by  him  over  property  accounts 


and  t  ansactions  of  the  officers  of  the  Navy 
Department,  and  to  relieve  him  of  all  responsi- 
bility in  relation  to  the  disposition  of  property 
intrusted  to  said  officers.  Under  this  act  the 
duty  and  responsibility  of  determining  ques- 
tions relating  to  the  correct  disposition  or  loss 
of  property  have  been  transferred  to  and  vested 
in  the  proper  officer  of  the  Navy  Department, 
and  it  seems  clear  that  the  auditor  will  have 
no  authority  over  or  in  relation  to  the  property 
mentioned  in  a  cash  voucher  evidencing  the 
purchase  of  forage,  until  he  has  been  furnished 
with  a  certificate  of  the  Paymaster  General  in 
accordance  with  said  act;  jurisdiction  over 
property  accounts  can  not  be  given  to  the 
auditor  by  injecting  papers  into  cash  accounts 
tending  to  show  what  disposition  has  been  made 
of  such  property.  (2  Comp.  Dec,  267;  Comp. 
Dec,  June  23,  1908,  appeal  No.  15210,  file 
26254-19;  23  Comp.  Dec,  28.) 

The  accounting  officers  of  the  Treasury  have 
no  jurisdiction  to  settle  accounts  of  rations 
issued  in  kind.  (Comp.  Dec,  June  23,  1908, 
appeal  No.  15210,  file  26254-19;  Comp.  Dec, 
Mar.  19,  1909,  97  S.  and  A.  Memo.,  995.)  It  fol- 
lows that  the  Comptroller  of  the  Treasury  has  no 
jurisdiction  to  render  a  decision  with  reference 
to  over-issues  of  rations  to  men  absent  with  or 
without  leave.  (Comp.  Dec,  June  27,  1908, 
file  26254-17.  [Quaere,  Whether  Comptroller  has 
jurisdiction  to  render  decisions  upon  questions 
relating  to  the  issue  of  heat  and  light  in  kind  to 
officers  of  the  Navy;  this  question  discussed  but 
not  decided  in  file  26254-394,  Jan.  29  and  Feb. 
8,  1910.] 

The  Comptroller  of  the  Treasury  is  not  author- 
ized to  render  a  decision  to  the  Secretary  of  War 
upon  the  question  whether  certain  members 
of  the  organized  militia  are  entitled  to  issues  of 
uniforms,  etc.;  as  the  accounting  for  such 
property  is  regulated  by  the  act  of  March  29, 
1894(28  Stat.,  47).  (20  Comp.  Dec,  49,  55;  see 
also  Comp.  Dec,  Feb.  3, 1917,  file  26254-2177:1). 

TJnliquidated  damages.  —  Under  section 
236,  Revised  Statutes,  the  accounting  officers 
have  jurisdiction  of  all  claims  against  the 
United  States,  whether  liquidated  or  unliqui- 
dated, but  by  long-continued  practice  a  rule  of 
law  has  been  established  which  precludes  these 
officers  from  allowing  claims  for  unliquidated 
damages.     (5  Comp.  Dec,  770.) 

Section  236,  Revised  Statutes,  refers  to  liqui- 
dated contract  obligations.  (Dig.  Dec,  Second 
Comp.,  V.  3,  par.  735.  See  also  4  Op.  Atty.  Gen., 
327,627;  6  Op.  Atty.  Gen.,  524;  14  Op.  Atty. 
Gen.,  424;  Carraicki;.  U.  S.,  2Ct.  Cls.,  126,  140.) 

The  accounting  officers  of  the  Treasury  have 
no  jurisdiction  to  settle  claims  for  unliquidated 
damages,  whether  the  claims  arise  from  un- 
avoidable accident  or  from  torts.  Accordingly, 
held  that  there  is  no  jurisdiction  to  settle  claim 
for  damage  done  to  wharf  by  navy  yard  tug.  (1 
Comp.  Dec,  283.)  [This  in  the  absence  of  ex- 
press statutory  authority  for  payment  of  such 
claims.] 

The  head  of  an  executive  department  is  not 
authorized  to  pay  the  actual  expenses  of  repair- 
ing a  vessel  injured  in  a  collision  with  a  Gov- 
ernment vessel,  the  claim  arising  from  the  col- 
lision being  one  for  imliquidated  damages 
caused  by  the  tort  of  the  Government's  officers. 


234 


Treasury  Department. 


Ft.  2.  REVISED  STATUTES. 


Sec.  236. 


(1  Comp.  Dec,  261.)  It  seems  to  be  the  ap- 
proved practice  to  commit  such  claims  to  the 
tender  mercies  of  Congress  for  settlement.  (1 
Comp.  Dec,  285.)  [The  Court  of  Claims  has 
said :  ' '  We  do  not  find  it  to  be  witliin  the  official 
duties  of  the  head  of  any  department  to  make 
estimates  for  appropriations  to  pay  claims  which 
the  Government  is  not  in  law  bound  to  pay, 
however  much  they  may  be  urged  to  do  so  by 
claimants  who  feel  aggrieved  by  the  tortious 
conduct  of  public  officers.  An  executive  de- 
partment is  not  the  place  to  apply  for  redress  of 
grievances  not  founded  on  legal  rights."  (Pit- 
man?;. U.  S.,  20  Ct.  Cls.,  256.)  The  naval  ap- 
propriation act,  June  24,  1910  (36  Stat.,  607), 
authorizes  the  Secretary  of  the  Navy  "to  con- 
sider, ascertain,  adjust  and  determine"  the 
amounts  due  on  all  claims  for  damages  occa- 
sioned by  collisions  for  which  vessels  of  the 
Navy  are  responsible,  where  the  amount  of  the 
claim  does  not  exceed  $500;  and  to  report  the 
amounts  due  to  Congress  at  ^ch  session, 
through  the  Treasury  Department,  for  payment 
as  legal  claims."  The  naval  appropriation  act 
of  July  1, 1918(40Stat.,  705),  authorized  the  Sec- 
retary of  the  Navy  to  "consider,  ascertain, 
adjust,  determine,  and  pay"  amounts  due,  not 
exceeding  $1,000,  on  claims  for  damages  to  and 
loss  of  private  property  of  inhabitants  of  Euro- 
pean countries  noL  enemies  or  their  allies,  occa- 
sioned by  men  in  the  naval  service  during  the 
existing  war.] 

The  accounting  officers  of  the  Treasury  have 
jurisdiction  to  settle  claims  based  on  a  contract 
with  the  Government,  either  expressed  or  im- 
plied, where  it  is  possible  to  ascertain  either 
from  the  terms  of  the  contract,  or  fi-om  extrane- 
ous proof,  the  justice  of  the  claim  and  the  cor- 
rectness of  the  amount;  but  they  can  not  take 
cognizance  of  claims  for  unliquidated  damages 
arising  from  torts  or  breach  of  contract.  Tliis 
has  been  repeatedly  held  by  the  Court  of 
Claims  and  in  opinions  of  Attorneys  General. 
(2  Comp.  Dec,  174;  citing  McKee's  case,  12  Ct. 
Cls.,  556  [reversed,  97  U.  S.,  233];  Dennis  v.  U. 
S.,  20  Ct.  Cls.,  119,  14  Op.  Atty.  Gen.,  24;  and 
see.  20  Comp.  Dec,  661.) 

The  jurisdiction  of  the  accounting  officers  is 
limited  to  claims  arising  on  contracts,  express 
or  implied,  and  does  not  extend  to  a  claim  for 
imliquidated  damages,  even  though  such  claim 
does  not  arise  from  the  tort  of  an  officer  of  the 
Government.  Accordingly,  held  that  account- 
ing officers  have  no  jurisdiction  of  claim  for  re- 
imbursement for  private  property  destroyed  by 
fire.  (2  Comp.  Dec,  487.)  [Reimbursement 
for  loss  or  damage  of  private  property  belonging 
to  persons  in  the  Navy  or  Marine  Corps  has  been 
provided  for  by  various  acts  of  Congress.  (See 
sec.  290,  R.  S.,  and  note  thereto.)] 

The  accounting  officers  and  heads  of  depart- 
ments have  no  cognizance  of  claims  for  unli- 
quidated damages  founded  on  neglect  or  breach 
of  duty  of  public  officers,  even  where  they  grow 
out  of  nonperformance  of  written  contracts, 
other  than  in  payment  for  work  actually  done 
or  material  furnished  and  received .  (Pitman  v. 
U.  S.,  20  Ct.  Cls.,  253;  1  Comp.  Dec,  261.) 

It  is  plain  that  the  Government  itself  is  not 
responsible  for  the  misfeasances,  or  wrongs,  or 


neglects,  or  omissions  of  duty  of  subordinate 
officers  or  agents  employed  in  the  public  serv- 
ice; for  it  does  not  undertake  to  guarantee  to 
any  person  the  fidelity  of  any  of  the  officers  or 
agents  whom  it  employs;  since  that  would  in- 
volve it,  in  all  its  operations,  in  endless  em- 
barrassments, and  difficulties,  and  losses,  which 
would  be  subversive  of  the  public  interests. 
(Pitman  v.  U.  S.,  20  Ct.  Cls.,  255,  quoting  Judge 
Story  in  his  work  on  Agency.) 

Equitable  claims. — The  accounting  officers 
have  no  jiu-isdiction  in  a  case  in  which  claimant 
has  an  equitable  claim  only,  wliich,  however 
just,  the  executive  officers  of  the  Government 
are  not  authorized  to  settle.  (9  Comp.  Dec. 
663.)  [See section  287,  Revised  Statutes,  which 
requires  accounting  officers  to  settle  certain 
classes  of  accounts  in  the  Navy  "on  principles 
of  equity  and  justice."] 

IV.  JuKiSDicTiON,  Accounting  Officers  and 
Federal  Courts. 

The  Court  of  Claims  at  first  had  a  rule 
that  "in  every  case  where  the  claim  is  such 
as  is  ordinarily  settled  in  any  Executive 
Department,  the  petition  shall  show  that  appli- 
cation for  its  allowance  has  been  made  to  that 
department,  and  without  success,  and  its  de- 
cision thereon;"  and  a  petition  was  dismissed 
because  it  did  not  set  forth  those  facts.  On 
appeal  the  Supreme  Court  decided  the  rule 
to  be  unauthorized  and  void,  and  remitted  the 
case  with  directions  to  proceed  to  a  hearing 
on  the  petition,  and  the  rule  was  thereupon 
abrogated  and  the  Court  of  Claims  has  ever 
since  proceeded  to  hear  cases  without  reference 
to  the  action  of  the  accounting  officers  thereon. 
(McKnight  v.  U.  S.,  13  Ct.  Cls.,  312;  affirmed 
98  U.  S.,  179;  Clyde  -y.U.  S.,  13  Wall.,  35.) 

Decisions  binding  on  accounting  oflS.- 
cers. — By  express  legislation  (act  Mar.  4,  1907, 
34  Stat.,  1356),  as  well  as  the  ruling  of  the 
Supreme  Court,  the  decisions  of  the  Court  of 
Claims,  when  not  appealed  from,  furnish  the 
rules  by  which  the  accounting  officers  are  to 
be  guided  in  their  settlement  and  adjustment 
of  Uke  cases.  (Leighv.  U.  S.,  43  Ct.  Cls.,  387; 
18  Comp.  Dec,  493;  Comp.  Dec,  Sept.  26, 1910. 
file  26254-539.  But  see  21  Comp.  Dec,  431; 
reversed  21  Comp.  Dec.  561;  also,  Comp.  Dec, 
Apr.  13,  1916,  file  26543-140:2,  and  20  Comp. 
Dec,  821.^ 

"Clearly  it  is  the  duty  of  the  accounting 
officers,  as  well  as  of  all  other  officers  of  the 
Government  in  the  discharge  of  their  official 
duties,  to  follow  the  rulings  of  the  United  States 
courts  where  applicable.  *  *  *  Notwith- 
standing a  claim  may  have  been  allowed  or 
rejected,  if  subsequent  thereto  the  Supreme 
Court  or  this  court  has  adjudicated  such  claim 
or  a  like  claim  such  adjudication  creates  a  new 
rule  of  decision  binding  on  the  accounting  offi- 
cers in  the  subsequent  consideration  of  like 
claims,  whether  then  pending  or  subsequently 
filed."  (Blazek  v.  U.  S.,  44  Ct.  Cls.,  188,  191, 
192.) 

Any  doubt  which  an  auditor  may  have  had 
as  to  the  legality  of  making  deductions  from 
the  salary  of  a  public  officer  in  a  particular 


54641°— 22- 


■IG 


235 


Sec.  236. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


case  "should  have  been  subordinated,  first,  to 
the  ruling  of  the  Attorney  General  and,  second, 
beyond  all  possible  question  to  the  jiidgments 
of  the  courts  below."  (Smith  v.  Jackson,  246 
U.  S.,  388,  aflirming  241  Fed.  Rep.,  747.) 

The  judgments  of  the  Court  of  Claims,  not  ap- 
pealed from,  are  conclusive  upon  the  accounting 
officers,  who  have  no  authority  to  reexamine 
such  a  judgment.  (U.  S.  tJ.  Jones,  119  U.  S.,477; 
McKnight  v.  U.  S.,  13  Ct.  Cls.,  309,  affirmed 
98  U.  S.,  179;  Meigs  v.  U.  S.,  20  Ct.  Cls.  181;  U. 
S.  V.  O'Grady,  22  Wall.,  641;  Wis.  Cent.  R.  R. 
Co.  V.  U.  S.,  164  U.  S.,  190.) 

The  action  of  the  accounting  oflEicers 
is  not  conclusive  in  a  suit  between  the 
United  States  and  the  individual.  (U.  S.  v. 
Harmon,  147  U.  S.,  274,  275);  nor  is  it  even 
prima  facie  evidence  of  the  indebtedness  of 
the  Government.  (McKnight's  case,  13  Ct. 
Cls.,  292.) 

The  Court  of  Claims  has  jurisdiction, 
upon  reference  of  the  head  of  any  de- 
partment, to  report  its  findings  of  fact  and 
conclusions  of  law  with  reference  to  any  claim 
or  matter  pending  in  such  department  which 
involves  controverted  questions  of  fact  or  law; 
and  the  report  of  the  Court  of  Claims  in  such 
a  case  shall  be  for  the  "guidance  and  action" 
of  the  department  making  the  reference. 
Judiciary  Act,  IMarch  3,  1911,  section  148  (36 
Stat.,  1137).  Where  the  Comptroller  of  the 
Treasury  held  a  provision  of  the  Army  Regu- 
lations to  be  null  and  void,  the  question  was 
referred  by  the  Secretary  of  War  to  the  Court 
of  Claim.s,  which  reversed  the  Comptroller  of 
the  Treasury  and  sustained  the  validity  of  the 
regulation.  (In  re  Smith,  23  Ct.  Cls.,  452;  see 
also  Smith  v.  U.  S.,  24  Ct.  Cls.,  209.) 

^Mienever  any  claim  is  made  against  any 
executive  department  over  which  it  has  ju- 
risdiction, such  department  may,  withoutaction 
in  the  Treasury  Department,  refer  such  claim 
to  the  Court  of  Claims,  provided  it  be  one  w^hich 
the  court  might,  under  existing  laws,  take  ju- 
risdiction of  on  the  voluntary  action  of  the 
claimant.  (Baltimore  &  Ohio  R.  Co.  v.  U.  S., 
34  Ct.  Cls.,  503.) 

The  Court  of  Claims  has  jurisdiction  to  try 
and  adjudicate  claims  or  matters  which  the 
Secretary  of  the  Treasury  may,  upon  the  cer- 
tificate of  any  auditor  or  of  the  Comptroller  of 
the  Treasury,  direct  to  be  transmitted  to  said 
court,  and  of  which  the  court  might  have  juris- 
diction on  the  voluntary  action  of  the  claimant. 
(Act  Mar.  3,  1911,  sec.'l48,  36  Stat,  1137.) 

Suits  for  lost  checks. — When  a  Govern- 
ment check  is  lost  or  stolen,  the  Revised  Stat- 
utes (sees.  306-310,  3646)  do  not  require  that 
payment  must  be  postponed  for  three  years  or 
preclude  a  suit.  They  simply  authorize  dis- 
bursing officers  to  duplicate  small  checks  in 
certain  cases.  The  power  given  to  the  ac- 
counting officers  to  duplicate  lost  checks  is  not 
exclusive  and  does  not  affect  the  jurisdiction 
of  the  courts.  (Becker  v.  U.  S.,  26  Ct.  Cls., 
172,  177.) 

For  other  cases,  see  "VII.  Effect  of  accotmt- 
ing  officers'  action." 


V.  Jurisdiction,  Accounting  Officers  and 
Heads  of  Executive  Departments. 

(A)  Secretary  of  the  Navy. 

(B)  Secretary  of  War. 

(C)  Miscellaneous. 


Attorney  General. — See  note  to  section  356,  Re- 
vised Statutes. 

Secretary  of  the  Treasury. — The  Secretary  of 
the  Treasury,  being  the  head  of  the  de- 
partment, has  a  right  generally  to  control 
or  revise  to  some  extent  the  action  of  others 
in  subordinate  official  positions.  (Mc- 
Knights'  case,  13  Ct.  Cls.,  30(),  307,  affirmed 
98  U.  S. ,  179.)  "The  Secretary  of  the  Treas- 
ury may,  when  in  his  judgment  the  inter- 
ests of  the  Government  require  it,  suspend 
payment,  and  direct  the  reexamination  of 
any  account.  "  (Act  July  31,  1894,  sec.  8, 
28  Stat.,  208.) 
* 
(A)  Secretary  of  the  Navy. 

The  accounting  officers  of  the  Treasury 
have  not  the  burden  of  responsibility  cast 
upon  them  of  revising  the  judgments,  correct- 
ing the  supposed  mistakes,  or  annulling  the 
orders  of  heads  of  departments.  The  Secre- 
tary of  the  Navy  represents  the  President,  and 
exercises  his  power  on  subjects  confided  to  his 
department.  He  is  responsible  to  the  people 
and  the  law  for  any  abuse  of  the  powers  in- 
trusted to  him.  His  acts  and  decisions  on 
subjects  submitted  to  his  jurisdiction  and  con- 
trol by  the  Constitution  and  laws  do  not  require 
the  approval  of  any  officer  of  another  depart- 
ment to  make  them  valid  and  conclusive.  The 
Executive  Department  of  the  Government  to 
which  is  intrusted  the  control  of  the  subject- 
matter  must  necessarilj'  determine  all  ques- 
tions appertaining  thereto.  Where  the  Comp- 
troller of  the  Treasury  was  of  the  opinion  that 
the  Secretary  of  the  Navy  had  mistaken  the 
law  or  abused  his  discretion,  and  undertook  to 
correct  the  Secretary's  supposed  mistake  or 
abuse  of  discretion,  held  that  the  Comptroller 
"was  not  bound  to  assume  this  responsibility.  " 
The  propriety  of  the  action  taken  was  a  subject 
peculiarly  within  the  jurisdiction  and  discre- 
tion of  the  head  of  the  Navy  Department,  and 
not  subject  to  revision  or  correction  by  the 
officers  of  any  other  department.  (U.  S.  v. 
Jones,  18  How.,  92.) 

In  the  Jones  case,  above-cited,  the  facts  were 
that  an  officer  of  the  Navy  was  detached  on 
special  duty  in  France,  and  a  sum  of  money 
was  transmitted  to  him  by  the  Secretary  of  the 
Navy,  to  be  disbursed  for  medical  attendance 
required  by  said  officer  for  a  severe  and  danger- 
ous wound  accidentally  received  by  him.  The 
money  was  disbursed  accordingly;  however, 
the  accounting  officers  of  the  Treasury  charged 
the  amount  so  disbursed  by  this  officer  against 
him  on  his  pay  account,  and  refused  to  recog- 
nize the  authority  of  the  Secretary  of  the  Navy 
in  the  premises.  The  Supreme  Court,  for  the 
reasons  set  forth  above,  sustained  the  Secre- 
tary's action  and  overruled  that  of  the  account- 
ing officers. 


236 


Treasury  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  236. 


The  Jones  case  was  decided  by  the  Supreme 
Court  in  1855.  It  has  since  been  quoted  and 
applied  in  numerous  cases,  including  the  fol- 
lowing: U.  S.  V.  Johnston,  124  U.  S.,  236,  252; 
Barnettv.U.  S.,  16  Ct.  Cls.,  515;  Waters  v.  U.  S., 
21  Ct.  Cls.,  38;  Dyer  v.  U.  S.,  37  Ct.  Cls.,  340; 
Hayden  v.  U.  S.,  38  Ct.  Cls.,  51;  Billings  v.  U. 
S.,  23  Ct.  Cls.,  179;  file  26260-347: C,  Oct.  20, 
1909,  and  26543-66,  Sept.  8,  1911;  Op.  Atty. 
Gen.,  May  19,  1915, 171_S.and  A.  Memo.,  3611. 
[In  the  case  last  cited  it  was  held  that  a  Navy 
regulation  concerning  responsibility  of  pay 
officers  is  binding  on  the  accounting  officers, 
and  that  a  decision  of  the  Comptroller  to  the 
contrary  is  not  conclusive  upon  the  Navy  De- 
partment. See  also  file  26254-1451:11,  Apr. 
1915.] 

The  designation  of  navy  mail  clerks  is  by 
act  of  May  27,  1908  (35  Stat.,  417),  vested  in  the 
uncontrolled  discretion  of  the  Postmaster  Gen- 
eral and  Secretary  of  the  Navy,  with  like 
uncontrolled  discretion  to  fix  theii'  compensa- 
tion within  the  prescribed  maximum .  Accord- 
ingly, a  decision  of  the  Comptroller  of  the  Treas- 
ury that  a  certain  Navy  mail  clerk  designated 
pursuant  to  the  statute  had  not  been  validly 
designated  because  such  designation  was  not 
in  accordance  with  certain  general  regulations 
issued  by  the  Secretary  of  the  Navy,  was  extra- 
official  and  not  binding  upon  the  Navy  De- 
partment. Held  further,  that  the  designation 
in  question  was  entii'ely  valid.  (Op.  Atty. 
Gen.  to  Secy.  Navy,  July  19,  1918,  file  26254- 
2476:5.) 

The  question  whether  or  not  the  record 
of  an  enlisted  man  in  the  Marine  Corps  is 
"honest  and  faithful"  within  the  meaning  of 
section  1281,  Revised  Statutes,  governing  pay- 
ment of  retained  pay,  is  one  for  the  naval  au- 
thorities to  decide,  and  the  accounting  oflicers 
and  the  courts  are  not  required  to  reconsider  the 
alleged  misconduct  and  add  to  the  penalty  pre- 
scribed by  the  military  authorities.  The  Presi- 
dent, acting  through  the  Navy  Department, 
not  having  declared  a  forfeiture  of  retained  pay, 
in  addition  to  discharge  from  the  service,  the 
record  of  the  man  in  question  cannot  be  reex- 
amined in  a  collateral  proceeding  for  the  pur- 
pose of  imposing  such  forfeiture.  (Kingsley  v. 
U.  S.,  24  Ct.  Cls.,  219.)  [In  adecision  rendered 
April  21,  1914  (20  Comp.  Dec,  751),  the  Comp- 
troller of  the  Treasury  held  that,  while  he  has 
no  jurisdiction  to  decide  as  to  the  character 
of  an  enlisted  man's  discharge,  "from  a  naval 
standpoint, "  nevertheless,  when  a  question  of 
paj^ing  travel  allowance  to  such  man  is  pre- 
sented, he  may  decide  that  a  man  discharged 
by  the  naval  authorities  on  account  of  expira- 
tion of  enlistment,  was,  '^for  the  purposes  of 
such  payment"  not  so  discharged;  that  ''even 
though  in  terms  a  discharge  by  reason  of  expi- 
ration of  enlistment,  and  properly  so  from  a 
naval  standpoint,  it  may  for  the  purposes  of 
this  office  be  regarded  otherwise."  But  see  21 
Comp.  Dec,  539,  noted  below,  under  "(B);S'ec- 
retary  of  War";  and  see  28  Op.  Atty.  Gen.,  83, 
holding  that  when  the  Navy  Department  in 
discharging  a  man  determines  the  character  of 
his  discharge,  "the  executive  branch  of  the 
Govermnent  thereby  becomes  functus  officio." 


Secretary's  discretion  not  reviewable. — 
It  is  not  for  the  court,  and  it  is  not  for  the 
accounting  officers,  to  say  how  much  or  how 
little  shall  be  allowed  to  a  naval  attache  from 
the  appropriation  for  ' '  maintenance  of  students 
and  attaches  and  information  from  abroad." 
There  being  no  limit  in  the  statute  upon  the 
amount  of  maintenance  which  may  be  allowed, 
that  amount  is  necessarily  within  the  exclusive 
jurisdiction  of  the  Secretary  of  the  Navy.  The 
appropriation  is  in  the  nature  of  a  contingent 
fund,  to  be  disbursed  by  the  Secretary  of  the 
Navy  in  his  discretion,  which  is  not  subject  to 
judicial  review.  (Dyer  v.  U.  S.,  37  Ct.  Cls., 
340.) 

An  order  of  the  Secretary  of  the  Navy,  ap- 
pointiiig  a  retired  officer  of  the  Navy  as  meteor- 
ologist at  a  navy  yard,  to  perform  work  ordina- 
rily performed  by  officers  of  the  Navy,  is  the  order 
of  the  President,  and  the  officer  is  entitled  to  the 
salary  prescribed  by  the  Secretary  of  the  Navy, 
from  the  appropriation  for '  'National  Defense, " 
notwithstanding  disallowance  thereof  by  the 
accounting  officers.  The  appropriation  in  ques- 
tion expressly  provides  that  it  is  to  be  expended 
"at  the  discretion  of  the  President. ' '  (Hayden 
V.  U.  S.,  38Ct.  Cls.,  51.) 

Secretary's  approval  of  travel  claims. — 
When  the  Secretary  of  the  Navy  has  approved 
an  amount  claimed  as  actually  exj^ended  for 
steward 's  fees  by  a  naval  officer  traveling  abroad 
under  orders,  it  must  be  treated  as  conclusive 
under  the  provisions  of  the  act  August  5,  1882 
(22  Stat.,  286),  it  being  the  practice  to  allow  offi- 
cers of  the  Government  reimbursement  for  such 
expenditures,  as  a  necessary  expense  of  travel 
abroad.  As  to  the  amount  of  the  claim,  inas- 
much as  it  has  been  approved  by  the  Secretary 
of  the  Navy,  it  is  clear  that  the  accounting 
officers  have  no  right  to  question  the  reasonable- 
ness of  such  amount,  in  \'iew  of  the  act  above 
cited;  by  the  terms  of  the  statute,  the  reason- 
ableness of  expenses  is  left  to  the  discretion  of 
the  Secreta»'y  of  the  Navy,  and  when  deter- 
mined by  lum,  such  determination  must  be 
taken  as  conclusive.  [The  law  cited  provided 
that  officers  traveling  abroad  under  orders  shall 
receive,  in  lieu  of  mileage,  "only  their  actual 
and  reasonable  expenses,  certified  under  their 
own  signatures  and  approved  by  the  Secretary 
of  the  Navy."]  (3  Comp.  Dec,  121.)  In  a  later 
decision,  the  Comptroller  of  the  Treasury,  con- 
struing this  same  act,  held  that  it  was  intended 
merely  as  a  safeguard  against  the  allowance  of 
unjust  and  exorbitant  claims,  and  to  place  a 
Umit  upon  the  jurisdiction  of  the  accounting 
officers,  and  to  preclude  the  allowance  of  any- 
thing not  approved  by  the  Secretary  of  the 
Navy;  but  that  the  accounting  officers'  jurisdic- 
tion remains  unimpaired  as  to  items  and 
amounts  approved  by  the  Secretary;  in  other 
words,  the  accounting  officers  cannot  allow  any 
items  not  approved  by  the  Secretary  of  the 
Navy;  but  they  are  not  bound  by  his  approval 
and  may  disallow  items  which  he  has  approved. 
(14  Comp.  Dec,  143.) 

The  Secretary  of  the  Navy 's  approval  or  dis- 
approval of  a  claim,  while  entitled  to  great 
weight,  is  not  conclusive  upon  the  accounting 
officers  in  cases  arising  under  the  act  of  July  1, 


237 


Sec.  236. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


1902  (32  Stat.,  602,  663),  which  provided  that 
the  Secretary  of  tl\e  Na\-y  may  direct  that  actual 
and  necessary  ex]ienscs  only  be  allowed  to  offi- 
cers performing  travel  repeatedly  between  two 
or  more  places.  And  the  same  tiling  applies  to 
ci\-ilian  emplovees  performing  travel  under  the 
act  of  Afarch  3,'  1875  (18  Stat.,  452).  (14  Comp. 
Dec,  143.  But  see  3  Comp.  Dec,  121,  noted 
above.) 

The  accounting  officers  are  not  bound  by  the 
approval  by  the  Navy  Department  of  traveling 
expense  accounts  of  officers  or  employees  of 
that  department;  nor  are  they  bound  by  the 
disapproval  by  the  Navy  Department  of  such 
accounts,  except  in  the  case  of  officers  of  the 
Navy  traveling  abroad  under  orders.  (14  Comp. 
Dec,  143.) 

The  determination  of  the  classes  of  expendi- 
ture to  be  allowed  as  traveling  expenses  is  a 
proper  subject  for  regulation  by  the  head  of  the 
department,  and  where  such  regulations  have 
been  made  they  must  ordinarily  be  regarded  as 
controlling.  (14  Comp.  Dec,  143;  see  also  9 
Comp.  Dec,  156.) 

The  approval  by  the  Secretary  of  the 
Navy  -was  held  not  conclusive  upon  the 
accounting  officers  in  cases  arising  under  the 
act  of  March  30,  1898  (published  in  note  to  sec. 
290,  R.  S.),  which  provided  that  "the  account- 
ing officers  of  the  Treasury  shall  in  all  cases 
require  a  schedule  and  affida\-it  from  each  per- 
son making  a  claim  "  for  losses  incurred  by  the 
destruction  of  the  U.  S.  S.  Maine,  "such 
schedule  to  be  approved  by  the  Secretaiy  of 
the  Na\-y."  The  Comptroller  of  the  Treasury 
held  that  the  requirement  that  such  schedules 
be  approved  by  the  Secretary  of  the  Navy 
seems  not  only  to  be  entirely  consistent  with 
the  exercise  by  the  auditor  of  his  usual  func- 
tions in  the  settlement  of  accounts,  but  to  be  a 
wise  and  salutary  safeguaid  against  the  allow- 
ance of  improper  claims;  that  the  reasonable 
construction  of  the  act  was  that  the  schedule 
was  required  to  be  approved  by  the  Secretary 
as  a  safeguard  against  the  allowance  of  unjust 
and  exorbitant  claims  arising  from  the  fact  that 
the  accounting  officers,  without  the  advice  and 
approval  of  the  Navy  Department,  were  not  in 
position  to  judge  so  intelligently  as  to  what 
articles  were  suitable  and  appropriate  for  an 
officer  or  enlisted  man  of  the  rank  or  rating  and 
duty  of  the  person  by  whom  the  claim  was 
made;  that  the  effect  was  to  put  a  limitation 
upon  the  jurisdiction  of  the  accounting  officers 
and  to  preclude  the  allowance  of  anytliing  not 
having  the  approval  of  the  Secretary,  but  leav- 
ing their  jurisdiction  unuupaired  as  to  items 
and  amounts  approved  by  him.  While,  there- 
fore, the  approved  schedule  and  affidavit  of  an 
officer  making  claim  under  said  act,  were  held 
to  constitute  a  prima  facie  claim  as  contem- 
plated by  tlie  act,  it  was  further  held  that  they 
were  by  no  means  conclusive  upon  tlie  ac- 
counting officers,  except  to  limit  their  jurisdic- 
tion to  a  consideration  of  the  items  and  amounts 
so  presented;  that  while  the  approved  schedule 
and  affidavit  might  be  sufficient  alone  to  jus- 
tify the  allowance  of  a  claim,  the  auditor  was  not 
concluded  by  them  if  in  his  judgment  addi- 
tional proof  M^as  necessary  and  proper  to  a  fair 
and  just  adjudication  of  the  claim  for  which 


reimbursement  was  provided.     (4  Comp.  Dec, 

587.) 

Approval  of  medical  claims. — The  deter- 
mination of  the  Secretary  of  the  Navy  that  ex- 
penses of  an  officer  of  the  Navy  for  medicines 
and  medical  attendance  are  incurred  under  cir- 
cumstances entitling  liim  to  reimbursement 
(sec  1586,  R.  S.),  is  conclusive.  Although  the 
Surgeon-General  of  the  Navy  decUned  to  rec- 
ommend this  allowance,  the  Secretary  of  the 
Navy  has  approved  same,  and  this  action  of  the 
head  of  the  department  must  be  regarded  as 
binding  upon  all.  (2  Comp.  Dec,  241,  citing 
U.  S.  r.  Ehason,  16  Pet.,  291,  302.) 

The  approval  of  the  administrative 
officer  is  prima  facie  evidence  of  the  correct- 
ness of  the  items  of  the  account;  and  in  the 
absence  of  clear  and  unequivocal  proof  of  mis- 
take on  the  part  of  such  officer,  it  should  be 
conclusive.     (U .  S.  v.  Jones,  134  U.  S.,  483,  488.) 

The  date  of  appointment  of  an  officer  as 
specified  in  his  commission,  where  such  date  is 
subsequent  to  the  date  of  the  vacancy  he  was 
appointed  to  fill,  is  conclusive  upon  the  ac- 
counting officers,  who  have  no  authority  to 
allow  pay  from  a  prior  date.  (9  Comp.  Dec,  612, 
citing  U.  S.  V.  Vinton,  28  Fed.  Cas.  No.  16624, 
and  4  Op.  Atty.  Gen.,  603.  See  act  of  March  4, 
1913,  37  Stat.,  892.) 

The  action  of  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate,  in 
advancing  an  officer  of  the  Navy  on  the 
retired  list  under  the  provisions  of  the  act  of 
June  29,  1906  (34  Stat.,  554),  is  not  conclusive 
upon  the  accounting  officers  where  it  subse- 
quently apjjears  that  the  officer  did  not  [in 
the  opinion  of  the  accounting  officers]  possess 
the  qualifications  necessary  to  entitle  him  to 
such  advancement  under  the  law.  (14  Comp. 
Dec,  169.)  [In  this  case,  the  question  was 
whether  the  officer  was  retired  for  any  of  the 
causes  mentioned  in  the  act  cited;  the  Comp- 
troller fiist  held,  April  30,  1907,  that  he  was  not; 
subsequently,  on  September  20,  1907  (14  Comp. 
Dec,  162),  the  Comptroller  reversed  his  proA-ioua 
decision,  and  held  that  the  officer  was  letired  for 
disability  originating  in  line  of  duty,  wliich  was 
one  of  the  causes  mentioned  in  the  act  under 
consideration;  thereafter  it  was  held  by  the 
Attorney  General  in  a  similar  case,  that  he 
could  not  agree  Avith  the  decision  of  the  Comp- 
troller last  cited,  but  coacmred  in  the  opinion 
of  the  Judge  Advocate  General  that  the  officer 
was  not  retired  for  disabiUty  originating  in  line 
of  duty  (27  Op.  Atty.  Gen.,  221).  Thereupon, 
the  Comptroller  of  the  Treasury  reopened  the 
case  and  followed  the  opinion  of  the  Attorney 
General,  reversing  liis  own  last  pre^'ious  deci- 
sion. 15  Comp.  Dec,  584;  97  S.  and  A.  Memo., 
1004.  This  final  decision  of  the  Comptroller 
was  upheld  bv  the  Supreme  Court  in  Morse  v. 
U.  S.,  229U.  S.,  208.] 

Navy  Department  may  decline  to  fur- 
nish information  to  accounting  officers. — 
The  Navy  Department  maintains  that  the  pro- 
motion of  officers  of  the  Navy  and  the  de- 
termination of  all  questions  relating  thereto, 
including  the  qualifications  of  the  officer,  the 
existence  of  the  vacancy,  and  the  application 
of  section  1505,  Revised  Statutes,  are  matters 
exclusively  within  the  jurisdiction  of  the  Navy 


238 


Treasury  Department. 


Ft.  2.  REVISED  STATUTES. 


Sec.  236. 


Department,  whose  action  thereupon  ia  not  sub- 
ject to  review  by  any  other  executive  depart- 
ment of  the  Government  or  office  thereof.  The 
Navy  Department  accordingly  would  not  fur- 
nish the  Auditor  for  the  Navy  Department  with 
certain  information  which  he  requested  for  the 
evident  purpose  of  reviewing  and  possibly  over- 
ruling tlie  action  taken  by  the  department  in 
the  case  presented.  (File  26260-347:  C,  Oct.  20, 
1909.) 

In  another  case,  the  Navy  Department  de- 
clined to  furnish  the  auditor  with  papers  con- 
cerning a  claim  for  payment  of  death  gratuity 
under  the  act  of  May  13,  1908  (35  Stat.,  128); 
holding  that  the  law  cited  reposes  the  respon- 
sibility for  payment  of  said  gratuity  in  the 
Paymaster  General,  under  the  Secretary  of  the 
Navy;  that  accordingly  the  decision  of  the 
Paymaster  General  as  to  the  facts  involved  is 
necessarily  conclusive;  and  inasmuch  as  the 
facts  in  the  particular  case  showed  tliat  the 
beneficiary  named  by  the  deceased  was  not 
entitled  to  payment,  the  matter  was  regarded 
as  closed  by  the  Navy  Department's  decision 
to  that  effect,  which  was  not  subject  to  review 
by  the  Auditor  for  the  Navy  Department.  It 
was  also  asserted  in  this  case  that  the  account- 
ing officers  have  no  jurisdiction  to  consider  a 
claim  for  payment  of  death  gratuity  until  the 
Paymaster  General  has  acted  upon  and  allowed 
same;  and  when  a  claim  is  allowed  by  the  Pay- 
master General,  this  establishes  claimant's 
right  and  he  is  entitled  to  demand  payment 
without  being  required  to  establish  his  claim 
anew  to  the  satisfaction  of  the  accounting 
officers.  (File  26543-66,  Sept.  8,  1911;  compare 
22  Comp.  Dec,  532;  file  26543-148;  see  also  20 
Comp.  Dec,  93.) 

The  policy  of  the  Navy  Department  has 
been  to  disapprove  the  submission  to  the 
Comptroller  of  the  Treasury  of  specific  ques- 
tions involving  administrative  matters  under 
its  own  jurisdiction,  and  the  department  has 
not  been  inclined  to  invite  controversy  by  spe- 
cifically requesting  his  decision  upon  questions 
which  the  law  places  under  the  cognizance  of 
the  Secretary  of  the  Navy.  (File  11112-476, 
Feb.  20,  1915.) 

The  Comptroller's  decision  upon  a  ques- 
tion of  law  involved  in  the  settlement  of 
accounts  under  his  cognizance,  is  not  binding 
upon  the  Navy  Department  in  taking  action 
upon  matters  under  its  cognizance,  even  though 
the  identical  question  of  law  may  be  involved. 
There  are  many  authorities  to  this  effect. 
(File  26254-1451:11,  Apr.  12,  1915,  citing 
cases.) 

Comptroller's  decision  as  to  validity  of  a 
Navy  regulation  held  not  binding  on  the 
Navy  Department,  but  said  regulation  is  bind- 
ing on  the  accounting  officers  (30  Op.  Atty. 
Gen.,  376,  171  S.  and  k.  Memo.,  3611,  noted 
under  sees.  161  and  285,  R.  S.) 

A  paragraph  in  the  "  Regulations  Governing 
the  Organization  and  Administration  of  the 
Naval  Reserve  Force,  1917,"  article  406,  chap- 
ter 4,  authorizing  enrollment  of  aliens  who  are 
citizens  of  countries  friendly  to  the  United 
States  and  who  have  declared  their  intention 
to  become  citizens  of  the  United  States,  held 
inconsistent  with  law  and  men  enrolled  in  ac- 


cordance therewith  not  entitled  to  pay  and 
allowances.  (Comp.  Dec,  Oct.  29,  1918,  file 
28550-470:3.)  This  decision  modified  and  the 
regulation  in  question  held  to  be  valid  as  being 
specifically  authorized  by  act  of  May  22,  1917 
(40  Stat.,  84),  overlooked  when  said  regulation 
was  held  to  be  invalid.  (Comp.  Dec,  Nov.  1, 
1918,  file  28550-470:5.) 

Citizenship  of  enlisted  men. — Where  the 
Bureau  of  Navigation  decided,  after  considera- 
tion of  all  the  evidence  in  the  case,  that  a 
Chinaman  who  was  an  enlisted  man  in  the 
Navy,  was  a  citizen  of  the  United  States,  and 
changed  his  birthplace  and  citizenship  on  the 
department's  records  accordingly;  and  the 
Auditor  for  the  Navy  Department,  upon  a  ques- 
tion of  pay,  decided,  after  consideration  of  the 
same  eviclence,  that  it  was  not  sufficient  to 
establish  the  fact  of  his  birth  in  the  United 
States;  it  was  held  by  the  Navy  Department 
that  the  decision  of  the  accounting  officers  is 
not  in  any  sense  binding  upon  the  Navy  De- 
partment in  its  determination  of  the  citizenship 
or  identity  of  an  enlisted  man,  and  that  no  new 
evidence  having  been  obtained,  the  decision 
of  the  Bureau  of  Na\agation  would  not  be 
reopened.  (File  26252-56,  Feb.  1,  1910.) 
[Subsequently  the  Comptroller  of  the  Treasury 
reversed  the  auditor's  action  upon  considera- 
tion of  the  same  evidence.  (Comp.  Dec, 
Mar.  12,  1910,  file  26254^24.)] 

Status  of  personnel  question  under  Navy 
Department. — The  Navy  Department  regards 
the  status  of  an  officer  of  the  Navy,  under  his 
orders,  as  a  question  of  fact  for  its  determination, 
and  not  that  of  the  accounting  officers.  (See 
12  Comp.  Dec,  563,  566;  9  Comp.  Dec,  826;  29 
Ct.Cls.,403;  16  S.  and  A.  Memo.,  145.)  Accord- 
ingly, held  that,  upon  the  facts  stated,  an  officer 
of  the  Navy  was  not  detached  from  his  vessel 
while  in  a  naval  hospital  under  treatment. 
This  being  so,  he  clearly  comes  within  tlie 
decisions  of  the  Comptroller  of  the  Treasury  and 
the  Court  of  Claims,  which  entitle  him  to  sea 
pay  when  not  detached  from  his  vessel,  and  a 
decision  of  the  Comjatroller  of  the  Treasury  in 
the  specific  case  was  not  necessary.  (File 
26254-2,  Apr.  29,  1908.  See  also  21  Comp. 
Dec,  539,  noted  below  under  "(B)  Secretary  of 
War." 

"If  men  are  properly  enlisted  in  the  naval 
service,  it  is  not  material  to  the  accounting 
officers  in  the  settlement  of  their  pay  and  allow- 
ances whether  they  are  at  all  times  lawfully . 
engaged  or  not.  That  is  a  matter  to  be  regu- 
lated by  the  Navy  Department,  and  even 
though  enlisted  men  be  employed  in  service 
forbidden  by  law  it  is  beyond  the  power  of  the 
accounting  officers  to  withhold  the  pay  and 
allowances  which  the  law  prescribes.  The 
legality  of  such  service  can  become  material  to 
the  accounting  oflicers  only  where  the  enlist- 
ments are  made  solely  for  such  illegal  purpose, 
and  then  only  in  passing  upon  the  payments 
made  under  said  enlistments."  (6  Comp. 
Dec,  758.) 

Comptroller  can  not  reheve  officers  of 
duty  to  obey  orders. — Officers  of  the  Navy 
must  at  all  times  be  governed  by  orders  of  the 
Navy  Department,  and  the  Comptroller  of  the 
Treasury  has  no  jurisdiction  to  authorize  a  disre- 


239 


Sec.  236. 


Pi.  2.  RE  VISED  STAT  UTES . 


Treasury  Department. 


gard  of  such  orders.  The  Na\-y  Department 
having,  by  special  order,  limited  the  allowance 
to  officers  of  travel,  an  officer  performing  travel 
igoverned  by  such  order  is  guilty  of  impropriety 
in  requesting  the  Comptroller  ot  the  Treasury  to 
authorize  him  to  exceed  the  allowance  so  fixed. 
Uis  letter,  which  was  addressed  to  the  Comp- 
troller through  official  channels,  was  accord- 
ingly placed  on  file  in  the  Navy  Department 
wiiljout  reference  to  the  Comptroller  of  the 
Treaaury.     (File  26254-58,  June  27,  1908.) 

The  Navy  Department  fully  understands 
that  officers  have  a  right  at  all  times  to  make 
claim  upon  the  auditor  for  any  sums  to  which 
they  may  consider  themselves  legally  entitled, 
and  upon  the  auditor's  disallowance  to  appeal 
therefrom  to  the  Comptroller  of  tlie  Treasury, 
the  right  of  a  pay  officer  in  this  respect  being 
neither  greater  nor  less  than  that  of  any  other 
officer  of  the  Navy.  However,  in  cases  where 
the  officer  has  been  guilty  of  direct  disobedience 
of  or  negligent  failure  to  comply  with  a  lawful 
order  of  the  Secretarj/  of  the  Navy,  it  is  obvious 
that  the  accounting  officers  can  no  more  relieve 
him  from  responsibility  for  his  conduct  than 
they  could  in  advance  authorize  a  disobedience 
of  such  order.  When  an  officer  has  been  in- 
formed to  this  effect  by  the  Navy  Department, 
his  action  in  thereafter  taking  the  matter  up 
with  the  accounting  officers  was  not  merely  an 
impropriety  on  his  part  but  was  conduct  indica- 
tive of  a  disposition  to  insubordination.  (File 
26251-3352:1,  July  14,  1910.)  [In  this  case  the 
officer  failed  to  comply  with  a  general  order 
requiring  him  to  check  the  value  of  clothing 
outfit  against  an  enlisted  man  on  discharge.  It 
was  held  by  the  Navy  Department  that  under 
the  law  full  discretion  was  conferred  upon  the 
Secretary  of  the  Navy  as  to  whether  or  not 
clothing  outfit  should  be  checked  on  discharge, 
and  that  the  Comptroller  of  the  Treasury  had 
no  jurisdiction  to  relieve  a  pay  officer  from 
responsibility  for  failing  to  check  the  value  of 
clothing  outfit  when  required  so  to  do  by  the 
Secretary  of  the  Navy.] 

The  accounting  officers  can  not  require 
a  disbursing  officer  of  the  Navy  to  make 
a  payment.  Such  power  is  possessed  only  by 
the  officer's  superior.  (File  26543-66,  Sept.  8, 
1911;  see  also  sec.  285,  R.  S.;  Smith  v.  U.  S., 
24  Ct.  Cls.,  215;  10  Comp.  Dec,  635.) 

Questions  pertaining  to  the  correct  pay 
and  allo"wances  of  officers  of  the  Navy  are 
placed  by  law  under  the  jurisdiction  of  the 
accounting  officers  of  the  Treasury,  and  do  not 
in  general  come  under  the  cognizance  of  the 
Navy  Department,  which  can  not  with  pro- 

{)riety  express  an  opinion  upon  a  question  simi- 
ar  to  one  pending  before  the   Comptroller. 
(File  26254^599,  Jan.  4,  1911.) 

If  there  is  a  balance  due  to  officers  of  the 
Navy,  the  matter  is  one  for  adjustment  between 
them  and  the  accounting  officers.  The  Navy 
Department  can  not  be  regarded  as  having  such 
an  interest  in  the  adjustment  of  individual 
accounts  as  to  warrant  its  appealing  to  the 
Comptroller  of  the  Treasury  in  such  cases,  and 
feels  that  to  do  so  in  certain  cases  would  set  a 
bad  precedent,  following  which  numerous  indi- 
vidual officers  might  thereafter  endeavor  to 
have  the  Navy  Department  prosecute  their 


claims.  [Letter,  August  19,  1912,  file  26254- 
1003,  to  the  Auditor  for  tlie  Navy  Department, 
in  reply  to  the  latter's  suggestion  that  the  Secre- 
tary of  the  Navy  appeal  to  the  Comptroller  of 
the  Treasury  for  revision  of  certain  accounts  in 
which  errors  in  calculation  were  made,  and  the 
Comptroller  had  declined  to  make  revision  on 
his  own  motion  at  the  suggestion  of  the  au- 
ditor.] 

The  Navy  Department  can  not  be  regarded  as 
having  such  an  interest  in  the  adjustment  of 
individual  accounts  as  to  warrant  an  appeal  to 
the  Comptroller  of  the  Treasury;  the  matter  is 
one  for  adjustment  between  such  individuals 
and  the  accounting  officers.  (File  26254-431:1, 
May  4,  1910.) 

(B)  Secretary  of  War. 

The  decisions  of  the  War  Department 
should  be  regarded  by  the  Treasury  De- 
partment as  estabHshing  matters  of  fact 
concerning  the  military  relations  which  exist 
between  the  Government  and  the  officers;  but 
upon  the  facts  as  thus  determined  by  ttie  War 
Department,  all  questions  of  law  involving  the 
financial  relations  existing  between  the  Gov- 
ernment and  the  officers,  and  the  financial 
obligations  of  the  Government  to  the  officers 
must  be  determined  and  decided  by  the  ac- 
counting officers  of  the  Treasury.  (Parkhurst 
■y.  U.  S.,29Ct.  Cls.,403.) 

The  records  of  the  War  Department 
(apart  from  opinions  and  conclusions  of  the 
officer  having  the  custody  thereof)  are  the  best 
evidence  of  an  officer's  status  in  the  service; 
but  if  the  record  does  not  disclose  the  facts  essen- 
tial to  the  accounting  officers  administering  the 
law  they  may  accept  from  other  sources  the 
necessary  competent  evidence.  (Northrup  v. 
U.  S.,  45  Ct.  Cls.,  50;  see  also  Brewington  v. 
U.  S.,  39  Ct.  Cls.,  399;  and  act  Apr.  19,  1910, 
36  Stat.  324,  making  "the  decision  of  the  War 
Department"  conclusive  in  certain  cases.) 

It  is  the  province  of  the  War  Depart- 
ment to  decide  military  questions  which 
relate  to  the  cause  or  manner  of  severance  from 
the  service  of  officers  and  enlisted  men  of  the 
Army;  and  where  that  department  has  deter- 
mined as  a  fact  that  an  officer's  services  ended 
by  the  acceptance  of  his  resignation  the  record 
of  that  fact  will  be  accepted  as  correct  by  the 
Comptroller  of  the  Treasury  in  the  adjustment 
of  the  claim  for  pay  and  allowances  in  case  of 
the  officer.     (21  Comp.  Dec,  539.) 

"It  is  peculiarly  the  province  of  the  War 
Department  to  make  deductions  of  fact  from 
the  records  of  miUtary  service  of  which  that 
department  is  the  natural  and  legal  custodian, 
and  to  decide  mihtary  questions  which  relate 
not  only  to  the  entrance  into  service  but  also 
the  cause  or  manner  of  severance  from  service 
of  officers  and  enUsted  men."  (21  Comp.  Dec, 
539,  547.) 

Reason  or  wisdom  of  orders  to  officers 
cannot  be  reviewed  by  accounting  offi- 
cers.— Where  the  accounting  officers  held  that 
the  War  Department  had  no  authority  to  send 
a  surgeon  to  the  International  Medical  Congress 
at  London  at  the  expense  of  the  Government, 
this  decision  was  reversed  by  the  Court  of 


240 


Treasury  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  236. 


Claims,  which  held  that  the  President  himself, 
or  tlirough  the  War  Department,  may  direct 
the  movements  of  all  officers  of  the  Army,  and 
to  whatever  place  and  on  whatever  business 
connected  with  the  military  service  he  may 
order  them  to  proceed,  they  are  bound  to  obey, 
at  least  when  such  order  is  not  forbidden  by 
law.  And  in  such  case  the  officer  is  entitled 
to  mileage.  It  is  not  for  the  accounting  officers 
to  inquire  into  the  reasons  nor  to  take  excep- 
tions to  the  expediency  and  wisdom  of  the 
orders  of  the  President  or  of  a  department 
when  issued  within  the  scope  of  thair  authority. 
Section  191,  Revised  Statutes  [act  JulySl,  1894, 
section  8  (28  Stat.,  208)],  relates  only  to  matters 
of  accounting  in  the  Treasury  Department  and 
of  ascertaining  the  balance  in  each  particular 
account  which  shall  be  drawn  for  the  Treasurer. 
Before  the  enactment  of  the  provisions  of  that 
section,  it  had  been  the  practice  of  the  Presi- 
dent and  the  heads  of  departments  to  interfere 
and  give  directions  to  the  accounting  officers 
in  the  matter  of  settling  accounts,  and  to 
change  or  attempt  to  change  the  balances 
stated  by  them.  The  accounting  officers  re- 
sisted the  practice,  and  the  controversy,  in 
different  forms,  was  several  times  referred  to 
the  Attorney  General,  who  advised  that  the 
President  was  without  such  authority,  but  that 
the  heads  of  departments,  especially  the  Secre- 
tary of  the  Treasury,  did  have  the  power  from 
the  nature  and  general  duties  of  their  offices. 
(Citing  1  Op.  Atty.  Gen.,  624,  678,  705;  2  Op. 
Atty.  Gen.,  303,  652;  5  Op.  Atty.  Gen.,  87, 630.) 
The  act  was  passed  apparently  to  settle  con- 
clusively that  long  standing  controversy 
between  executive  officers,  and  to  prevent  the 
interferences  of  others  in  the  settlement  of 
accounts  by  the  accounting  officers.  (Citing 
McKee's  Case,  12  Ct.  Cls.,  554.)  It  makes  con- 
clusive upon  the  executive  branch  of  the 
Government  only  the  "balances"  stated  by 
the  latter  officers,  and  their  "decision  thereon,  " 
for  the  purpose  of  determining  for  what  amounts, 
if  any,  warrants  may  be  drawn  on  the  Treasury. 
It  does  not  make  such  decisions  conclusive 
upon  the  head  of  a  department  in  the  exercise 
of  his  discretion  as  to  ordors  to  be  issued  to  his 
subordinates  in  such  connections  as  the  one 
now  under  consideration.  (Billings  v.  U.  S., 
23  Ct.  Cls.,  179;  file  26254-1451:11,  April  12, 
1915.) 

The  accounting  oflB.cers  are  not  author- 
ized to  inquire  into  the  -wisdom,  expediency, 
or  necessity  of  assigning  an  officer  to  a  com- 
mand above  that  pertaining  to  his  grade;  but  it 
is  within  their  authority  to  inquire  whether 
the  order  of  assignment  to  higher  command 
was  carried  into  effect  according  to  law,  and  to 
what  extent  the  officer  performed  the  service 
to  which  he  was  assigned.  (Glenn  v.  U.  S., 
37  Ct.  Cls.,  254.) 

Legal  acts  of  Secretary  are  conclusive. — 
Whatever  may  be  the  legal  prerequisites  of 
brevet  commanders  in  the  Army,  their  exist- 
ence is  to  be  presumed  from  the  order  or 
decision  of  the  Secretary  of  War  assigning  or 
determining  those  commands.  That  being  a 
legal  presumption  is  conclusive,  and  the  fact 
must  be  regarded  by  the  Auditor  and  Comp- 
troller as  established  by  and  according  to  the 


Secretary's  decision  and  orders.  Acts  done 
by  the  Secretary  of  War  within  the  peculiar 
and  legitimate  .sphere  of  his  olficial  duty  are 
to  be  taken  and  Tinderstood  as  rightly  done, 
and  to  preclude  all  collateral  inqiiiry  by  ac- 
counting officers.  (5  Op.  Atty.  Gen.,  386, 
quoted  approvingly  in  Billings  v.  U.  S.,  23 
Ct.  Cls.,  179.) 

Army  Regulations  binding  on  account- 
ing officers. — Army  Regulations  issued  pur- 
suant to  the  explicit  provisions  of  a  statute, 
and  in  execution  thereof,  when  sanctioned  by 
the  President,  have  the  force  of  law,  and  are 
conclusive  upon  tlie  accounting  officers  of  the 
Treasury;  accordingly,  when  an  officer  of  the 
Marine  Corps  presents  with  his  account  an 
authentic  document  or  certificate  of  his  having 
commanded  a  post  or  arsenal,  for  which  an 
order  has  been  issued  from  the  War  Depart- 
ment in  conformity  with  the  provisions  of  the 
Army  Regulations,  allowing  double  rations,  his 
right  to  them  is  established,  nor  can  they  be 
withheld  without  doing  him  a  "wrong  for  which 
the  law  gives  liim  a  remedy.  (U.  S.  v.  Free- 
man, 3  How.,  566. )  For  other  decisions  concern- 
ing executive  regulations,  see  note  to  section 
161,  Revised  Statutes. 

Accounting  officers  refused  to  allow 
compensation  for  expert  employed  by 
authority  of  Secretary  of  War  at  a  trial  by 
coiurt-martial.  It  was  held  by  the  Court  of 
Claims,  that  the  employment  of  experts  before 
a  court-martial  is  within  the  legal  and  proper 
discretion  of  the  Secretary  of  War;  and  his 
order  to  employ  and  pay  them  is  official  au- 
thority to  an  officer  who,  in  the  ordinary  dis- 
charge of  his  duty,  makes  such  payments, 
and  protects  him  from  the  summary  remedy 
of  having  his  pay  stopped.  (In  re  Maj .  William 
Smith,  24  Ct.  Cls.,  209.) 

The  accounting  officers  have  no  juris- 
diction to  review  a  decision  of  the  Secre- 
tary of  War  that  a  soldier  did  not  serve 
honestly  and  faithfully.  Except  in  cases  of 
deserters,  the  act  (June  16,  1890,  26  Stat.,  157), 
makes  tlie  Secretary  of  War  the  judge  as  to 
what  misconduct  shall  constitute  a  failure  to 
render  honest  and  faithful  service  within  the 
meaning  of  the  laws  relatir^  to  retained  pay 
therein  specified.  The  Secretary  of  War  hav- 
ing decided  that  a  soldier  did  not  serve  hon- 
estly and  faithfully,  he  is  not  entitled  to  the 
retained  pay  therein  specified.  (3  Comp.  Dec, 
557.) 

The  accounting  officers  have  no  authority  to 
review  the  action  of  the  War  Department  re- 
fusing to  discharge  a  soldier  for  disability  and 
reqiuring  him  to  piu-chase  his  discharge  as  a 
condition  precedent  to  his  release  from  the 
service,  prior  to  the  date  on  which  he  was 
entitled  to  his  discharge.     (2  Comp.  Dec,  546.) 

In  the  absence  of  fraud  or  plain  error, 
a  finding  by  the  military  authorities  as  to  the 
cause  of  disease  and  the  period  of  absence  from 
duty  on  account  thereof,  is  conclusive  upon 
the  accounting  officers  with  reference  to  stop- 
page of  pay  in  the  accounts  of  an  officer  or 
enlisted  man  so  absent.     (20  Comp.  Dec,  69.) 

The  powers  of  the  Secretary  of  War, 
and  the  authority  which  had  been  attempted 
to  be  exercised  by  subordinate  officers  of  other 


241 


Sec.  236. 


Pt.  2.  REVISED  STATUTES. 


Treasury  Department. 


departments  of  reviewing  anil  overruling  the 
decisions  of  the  Seeretaryof  War  upon  military 
questions  and  matters  arising  in  the  adminis- 
tration of  the  War  Department,  were  con- 
sidered at  some  length  in  War  De])artment 
Circular  of  November  2,  1901 ;  and  the  decision 
of  the  Secretary  of  War  (^^r.  Root)  was  stated 
therein  as  follows:  "The  department  will  not 
hereafter  furnish  copies  of  records  or  statements 
from  them  to  enable  ofhcors  or  em])loyeea  of 
other  executive  departments  to  review  de- 
cisions made  by  the  War  Department  upon 
])urely  military  questions,  or  to  make  indepen- 
dent decisions  with  regard  to  such  questions." 
[This  decision  of  the  War  Department  was 
quoted  by  the  Navy  Department,  October  20, 
1909  (fde  26260-347:0),  and  September  8,  1911 
(file  26543-66),  in  cases  in  which  the  Auditor  for 
the  Navy  Department  requested  information 
for  the  evident  purpose  of  reviewing  and  possi- 
bly overruling  decisions  of  the  Navy  Depart- 
ment upon  questions  of  a  purely  military  na- 
ture.] 

The  War  Department  does  not  find  it 
necessary  or  desirable  to  decide  for  the  infor- 
mation of  the  Comptroller  whether  a  former 
officer  of  the  Army  is  regarded  as  having  left  his 
command  without  jDroper  authority,  when  the 
records  disclose  that  the  War  Department  had 
previously  determined  that  the  officer's  service 
terminated  by  acceptance  of  resignation,  and 
that  this  decision  was  not  followed  by  the 
auditor.     (21  Comp.  Dec,  540.) 

The  promotion  of  a  civilian  employee  by 
the  Secretary  of  War  is  not  ordinarily  open 
to  question,  but  where  it  is  patent  upon  its 
face  that  the  increase  of  pay  was  to  be  tem- 
porary and  merely  for  the  purpose  of  accom- 
plishing indirectly  something  that  could  not  be 
accomplished  directly,  namely,  to  antedate  an 
increase  of  paj',  the  accounting  officers  are  war- 
ranted in  refusing  to  recognize  such  promotion 
ashaving  any  legal  effect.     (23  Comp.  Dec,  6.) 

{C)  Miscellaneous. 

Approval  of  expense  accounts. — Where 
the  execution  of  a  statute  is  committed  to  the 
head  of  a  Department,  subject  to  the  President's 
ajiproval  of  rules  and  regulations  prescribed 
pursuant  thereto,  with  no  other  restriction  than 
that  certain  expenses  be  proper  and  necessary 
and  approved  by  the  Secretary,  held  that  the 
ap])roval  of  the  Secretary  of  an  account  of  ex- 
penses pursuant  to  said  act  is  conclusive  evi- 
dence that  they  were  proi>er  and  necessary, 
unless  it  appears  that  their  allowance  was  pro- 
cured by  fraud,  or  that  they  were  incurred  in 
violation  of  an  act  of  Congress  or  of  public 
policy;  and  that,  if  the  law  be  held  to  require 
that  the  accounts  be  audited  and  ])assed  by  the 
accounting  officers,  then  in  auditing  those  ac- 
counts they  would  have  been  bound  to  regard 
the  action  of  the  Secretary  in  allowing  certain 
expenses,  as  final.  (U.  S.  v.  Johnston,  124 
U.  S.,  236,  252.) 

It  is  impossible  to  suppose  that  Congress 
intended  that  every  account,  after  being 
approved  by  the  Secretary,  should  be  sub- 
ject to  review  by  some  subordinate  officer  of 
the  Treasury,  or  even  by  the  courts,  and  to  be 


disallowed  merely  because  in  the  judgment  of 
that  olUcer  or  of  the  courts,  such  expenses 
should  not  have  been  incurred.  (U.  S.  v.  John- 
st«m,  ]24U.  S.,  249,250.) 

Under  a  law  providing  that  accounts  of 
chief  supervisors  of  elections  were  to  be 
api>roved  by  the  circuit  or  district  court,  such 
approval  determines  the  fact  that  the  services 
were  necessary  and  proper,  and  of  a  character 
sufficient  to  entitle  the  officer  to  the  fee  pre- 
scri])ed  by  law  for  such  services;  but  such  ap- 
proval of  the  court  does  not  establish  the  accu- 
racy of  the  accoinit,  nor  take  it,  as  an  account, 
out  of  the  supervision  of  the  accounting  officers 
whose  duty  still  remains  to  examine  it,  revise 
it,  verify  its  calculations,  scrutinize  its  ^•ouch- 
ers,  and  ascertain  its  true  amount;  nor  will  the 
approval  of  the  court  render  the  Government 
liable,  either  before  the  accounting  officers  or  in 
the  Court  of  C  laims,  for  a  service  or  expenditure 
not  authorized  by  law.  (Dennison  v.  U.  S., 
25  Ct.  Cls.,  322. )_  But  the  approval  of  the  court 
in  such  a  case  is  prima  facie  e\'idence  of  the 
correctness  of  the  items  of  the  account;  and  in 
the  absence  of  clear  and  unequivocal  proof  of 
mistake  on  the  part  of  the  court,  it  should  be 
conclusive.     (U.  S.r.  Jones,  134 U.S.,  483,488.) 

Discretion  of  Secretary  not  review- 
able.— Where  Congress  intrusts  to  a  public 
officer  the  expenditure  of  a  sum  of  money  for  a 
designated  purpose,  without  restriction  or  limi- 
tation as  to  details,  the  exercise  of  judgment 
and  discretion  by  such  officer  cannot  be  re- 
viewed by  the  accounting  officers  or  the  courts, 
for  the  mere  purpose  of  determining  whether  or 
not  the  authority  was  exercised  in  the  most 
judicious  manner.  If  the  officer  acts  in  good 
faith,  keeps  within  the  general  scoi>e  and  au- 
thority of  the  law,  and  does  not  undertake  to 
apply  the  money  tx)  other  and  wholly  different 
purposes  from  those  designated  in  the  act  of 
appropriation,  his  action  cannot  be  questioned 
in  the  final  settlement  of  the  accounts,  espe- 
cially as  against  an  innocent  employee  who, 
though  bound  by  the  law,  has  no  discretion  to 
exercise  over  the  ^iropriety  of  the  orders  of  his 
employers.     (Plummer  y.  U.  S.,  24Ct.Cls.,  519.) 

It  is  the  theory,  and  a  wise  one,  upon 
which  the  final  adjustment  and  settle- 
ment of  accounts  in  the  Treasury  Depart- 
ment is  founded,  that  the  officers  who  pass 
upon  them  shall  be  wholly  distinct  from  those 
who  expend  the  money  or  incur  the  liabilities. 
For  the  manner  in  which  these  latter  officers 
perform  the  trust  imposed  upon  them,  they 
alone  are  resptmsible;  the  Com])trolIer  is  only 
charged  with  the  duty  of  seeing  that  they  keep 
within  the  latv.  (Waters -y.  U.  S. ,  21  Ct.  Cls.,  38, 
citing  Longwill's  Case,  17  Ct.  Cls.,  288;  Ridg- 
way'sCase,  18  Ct.  Cls.,  715;  etc.) 

The  Comptroller  of  the  Treasury  has  no 
power  to  review,  revise,  or  alter  items  ex- 
pressly allowed  by  statute,  nor  items  of  ex- 
penditure or  allowances  made  upon  the  judg- 
ment and  discretion  of  other  officers  charged 
with  the  duty  of  expendmg  the  money  or  of 
making  the  allowances.  His  duty  extends  no 
further  than  to  see  that  the  officers  charged  with 
that  duty  have  authorized  the  expenditures  or 
have  made  the  allowances.  (U.  S.  v.  Waters, 
133  U.  S.,  215;  followed   17  Comp.  Dec,  263.) 


242 


Treasury  Department. 


Pt.2.  RE  VISED  STAT  UTES . 


Sec.  236. 


[This  statement  of  the  power  of  the  Comptroller 
applies  as  well  to  the  Auditors,  who  also  have 
no  power  to  disallow  an  item  when  the  question 
involved  in  the  expenditure  is  one  committed 
to  the  judgment  and  discretion  of  the  head  of 
the  Department.     2  ('omp.  Dec,  .330.] 

The  duty  of  the  accounting  officers  in 
respect  to  pensions  is  to  audit  the  accounts 
relatbig  to  them,  and  to  certify  the  balances. 
But  this  does  not  require  that  they  shall  take 
from  the  Commissioner  of  Pensions  the  juris- 
diction with  which  the  law  clothes  him  to  con- 
strue and  administer  the  pension  laws,  or  inter- 
fere with  his  instructions  to  pension  agents. 
On  the  contrary,  thev  are  bound  to  conform  to 
his  decisions.  (17  Op.  Atty.  Gen.,  339,  340; 
20  Op.  Atty.  Gen.,  178.) 

The  propriety  of  keeping  every  branch 
of  the  executive  government  within  its 
legal  sphere  is  clear.  The  confusion  which 
would  unavoidably  arise,  if  one  branch  was  per- 
mitted to  usurp  the  functions  of  another,  would 
be  disastrous  to  the  proper  working  of  the  whole. 
When,  therefore,  a  '•  difference  of  opinion" 
arises  between  several  executive  departments 
as  to  the  construction  of  the  law,  the  primary 
question  is  as  to  which  is  vested  with  the  deter- 
mination and  responsibility  of  the  question. 
That  one  only  can  ha^e  jurisdiction  over  the 
subject-matter  is  plam.  (20  Op.  Atty.  Gen., 
178,  180.) 

Whenever  a  statute  gives  a  discretion- 
ary power  to  any  person,  to  bo  exercised  by 
him  upon  his  own  o])inion  of  certain  facts,  it  is 
a  sound  rule  of  construction  that  the  statute 
constitutes  him  the  sole  and  exclusive  judge  of 
the  existence  of  those  facts.  In  such  a  case, 
the  courts  must  ordinarily  assume  that  discre- 
tion conferred  ujjon  the  officer  was  properlv 
exercised.  (Mullan  v.  U.  S.,  140  U.  S.,  245; 
Martin  v.  Mott,  12  Wheat.,  19,  31.) 

It  is  fully  recognized  by  the  accounting 
officers  that  where  a  particular  power  or  discre- 
tion has  been  conferred  upon  the  head  of  a 
department  or  other  officer,  either  by  express 
law  or  by  necessary  implication,  his  acts  within 
the  scope  of  that  power,  or  in  the  exercise  of 
that  discretion,  if  not  prohibited  by  law,  can 
not  be  set  aside  or  called  in  question,  either  by 
the  accounting  officers  or  by  the  courts.  (5 
Comp.  Dec,  410,  416;  14  Comp.  Dec,  143.) 

W^here  the  law  (sec  4577,  R.  S.)  makes  it  the 
duty  of  consular  officers  to  provide  subsistence 
and  transportation  for  destitute  seamen,  the 
question  whether  an  American  seaman  is  or  is 
not  destitute  within  the  meaning  of  the  law  is 
one  to  be  determined  by  the  consular  officer  to 
whom  he  applies  for  relief,  and  tlie  latter's  de- 
cision will,  in  the  absence  of  fraud,  be  con- 
clusive; and  it  is  not  within  the  power  of  the 
accounting  officers  to  overrule  his  determina- 
tion of  that  fact.  (3  Comp.  Dec,  40;  26  Op. 
Atty.  Gen.,  631.) 

Where  an  act  of  Congress  vests  in  the 
Secretary  of  the  Interior  authority  to  deter- 
mine the  method  of  disbursing  money  due  to 
Indians,  either  by  paying  them  in  cash  or  "by 
expending  the  same  for  their  benefit,  in  such 
manner  as  he  may  deem  for  their  best  inter- 
ests," and  the  Secretary  has  made  such  deter- 
mination, all  other  officers  are  bound  by  this 
exercise  of  power  by  him.    (2  Comp.  Dec,  642.) 


When  the  Secretary  of  the  Interior  in  the 
exercise  of  a  reasonable  discretion  determines 
as  to  the  validity  of  title  to  rights  and  property 
to  be  acquired  by  him  under  the  provisions  of 
law,  his  decision  is  conclusive  upon  the  ac- 
counting officers.     (12  Comp.  Dec,  691.) 

When  the  head  of  a  Department  ap- 
proves a  voucher  for  the  traveling  expenses 
of  an  employee  at  sea,  containing  items  for  wine 
or  carbonated  waters  used  for  the  specific  pur- 
pose of  controlling  seasickness,  and  not  merely 
as  a  beverage,  with  knowledge  that  the  liquids 
are  so  used,  the  amount  thereof  must  be  allowed. 
It  is  for  the  head  of  the  Department  to  deter- 
mine ^\dtllin  his  discretion  whether  such  items 
are  a  necessary  expense  of  travel  under  the 
circumstances.     (1  Comp.  Dec,  404.) 

When  an  item  is  properly  payable  from 
an  appropriation  for  contingent  expenses, 
and  is  not  prohibited  by  any  law  or  regulation, 
the  discretion  of  the  officer  charged  with  the 
duty  of  expending  said  fund  is  not  subject  to 
review  by  the  accounting  officers  upon  any 
question  as  to  the  necessity  or  adAdsability  of 
his  expenditures.  The  responsibility  for  in- 
curring an  expense,  as  to  the  necessity  or  ex- 
pediency of  wliich  opinions  may  differ,  must 
be  assumed  by  the  officer  under  whose  control 
the  appropriation  is  put.  [The  question  in 
this  case  related  to  purchasing  portraits  of  his 
predecessors  for  the  office  of  a  public  officer. 
The  Comptroller  said:  "  I  know  of  no  provision 
of  lawprohibiting  the  purchase  of  poi'traits  or  pic- 
tures for  your  office.  The  responsibility  for  the 
payment  of  this  bill,  as  an  incidental  expense  of 
youroffice,  restswithyou."]  (2Comp.  Dec, 80.) 

In  the  absence  of  any  law  or  regulation 
fixing  the  amount  which  may  be  allowed  for 
the  expenses  of  a  secret  agent,  the  matter  is 
entirely  within  the  discretion  of  the  Post- 
master General  in  the  management  of  the  postal 
service;  and  his  decision  as  to  the  amount  of 
expenses,  when  that  discretion  is  properly 
exercised,  is  conclusive  upon  the  accounting 
officers  of  the  Treasury.  (2  Comp.  Dec,  336, 
citing  U.  S.  -y.  Waters,  133  U.  S.,  208.) 

Where  a  statute  provides  that  "heads 
of  Departments  shall  cause  this  rule  to 
be  enforced,"  it  is  made  their  duty,  and  not 
that  of  the  accounting  officers,  to  determine 
questions  of  fact  arising  thereunder.  (20  Comp. 
Dec,  10.) 

It  has  frequently  been  urged  upon  the 
accounting  officers  that  it  is  their  duty 
to  recognize  the  action  of  the  heads  of 
Departments  in  approving  claims  as  con- 
clusive. (14  Comp.  Dec,  143.)  The  general 
provision  of  law  governing  the  manner  of  set- 
tling claims  against  the  Government  is  found  in 
section  236,  Revised  Statutes.  Such  being  the 
general  law  upon  the  subject  of  the  settlement 
of  claims  against  the  United  States,  special 
acts,  according  to  established  rules  of  inter- 
pretation, must,  if  possible,  be  coiiistrued  in 
harmony  therewith.  It  is  not  to  be  supposed 
that  Congress  intended  to  repeal  or  modify  the 
general  law  by  implication.  Such  an  inten- 
tion should  clearly  appear  by  apt  words  to  that 
end,  or  by  necessary  intendment.  A\Tien  it  is 
designed  to  vest  in  some  officer  the  power  of 
determining  certain  questions  of  fact,  it  is 
usual  to  eniploy  clear  and  unmistakable  words 


243 


Sec.  236. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


to  convey  that  intention.  Where  the  approval 
of  an  expenditure  is  intended  to  be  binding 
upon  the  accounting  officers  it  is  usual  to  so 
state.  \\Tiero  no  such  intention  is  expressed, 
the  mere  ap])roval  by  an  administrative  officer 
carries  ■with  it  no  such  conchisive  force.  When 
a  statute  designates  an  officer  to  determine 
some  question  of  fact,  and  expressly  or  by  neces- 
sary implication  shows  that  such  determina- 
tion is  to  be  conclusive,  the  validity  of  such 
action,  in  the  absence  of  fraud,  can  not  generally 
be  questioned  by  officers  of  another  depart- 
ment of  the  Government;  and  this  is  also  true 
where  the  matter  is  one  involving  the  exercise 
of  discretion  vested  in  an  administrative  officer. 
But  in  the  determination  of  facts  arising  in  the 
ordinary  course  of  business  in  the  several  execu- 
tive departments,  the  decisions  of  the  adminis- 
trative official,  though  of  great  weight,  are  not 
regarded  by  the  accounting  officers  as  conclu- 
sive. The  opportunity  for  administrative  offi- 
cials to  pass  intelligently  upon  questions  of 
fact  arising  in  their  department^  is  much 
greater  than  is  that  of  the  accounting  officers, 
and  it  has  accordingly  been  the  purpose  of 
legislation  upon  the  subject  of  accounts  to 
thi-ow  upon  the  administrative  officers  the 
burden  of  making  such  decisions.  But  tliis  is 
far  from  admitting  that  the  accounting  officers 
are  relieved  of  the  responsibility  of  inquiring 
for  themselves  into  the  facts  of  any  particular 
case.  Claims  bearing  the  approval  of  adminis- 
trative officers  and  heads  of  departments  are 
frequently  disallowed.  The  approval  of  the 
head  of  the  department  does  not  control  the 
action  of  the  accounting  officers,  except  to 
cause  a  disallowance  of  an  expenditure  not  so 
approved,  if  such  approval  is  required  by  law. 
(4  Comp.  Dec,  587.) 

Items  of  expense  bearing  the  approval 
of  heads  of  departments  are  disaUowed 
every  day  by  the  accounting  officers. 
The  latter  are  required  to  examine  accounts  to 
see  if  the  expenditures  are  allowed  by  law.  If 
of  such  a  character  that  the  approval  of  the 
head  of  department  is  essential,  items  not  ap- 
proved are  promptly  disallowed.  Only  in 
rare  instances,  and  when  so  provided  by  law, 
is  the  approval  of  the  head  of  a  department 
final  and  conclusive  upon  the  accoimting  offi- 
cers. Congress  has  provided  that  the  approval 
of  vouchers  for  its  contingent  expenses  shall  be 
final  and  conclusive,  and  that  the  certificate  of 
the  Speaker  of  the  House  of  Representatives  as 
to  salary  and  mileage  shall  be  final.  When  it 
is  intended  that  the  accounting  officers  shall 
not  examine  and  audit  accoimts  upon  their 
merits — that  is,  determine  questions  of  law  and 
of  fact  arising  therein — plain  language  can  be 
and  is  employed  by  Congress.  It  is  not  to  be 
understood  that  the  Comptroller  will  refuse  to 
give  to  the  approval  of  the  head  of  a  depart- 
ment or  of  an  independent  commission  that 
effect  wliich  is  contemplated  by  law.  Ordi- 
narily that  approval  is  conclusive  as  to  the 
propriety  of  expending  an  appropriation  for  the 
purpose  for  which  it  is  applicable.  Nor  does 
the  Comptroller  in  an  ordinary  case  question 
the  necessity  for  travel  made  by  an  employee 
or  the  reasonableness  of  expenses  incurred  for 
subsistence,  etc.    But  when  the  proper  execu- 


tive officer  fixes  a  limit  to  such  expenses,  no 
employee's  voucher  for  a  greater  amoimt  will 
be  passed,  unless  the  regulation  is  waived  by 
the  one  who  made  it.     (4  Comp.  Dec. ,  270, 271.) 

Nothing  short  of  a  clear  intent,  un- 
equivocally expressed  in  a  statute,  will 
warrant  a  court  in  holding  that  Congress  has 
intended  to  create  an  extraordinary  exception 
to  the  accounting  system  of  the  United  States, 
where  no  need  of  such  exception  exists  and 
where  none  is  in  terms  declared.  (Dennison  v. 
U.  S.,25Ct.  Cls.,  321.) 

Evidence  required. — The  accounting  offi- 
cers are  charged  with  the  duty  of  settling  the 
public  accounts.  The  cliaracter  and  quantity 
of  evidence  needed  to  establish  a  fact  must 
be  determined  by  them;  otherwise,  the  conclu- 
sion reached,  which  is  "final  and  conclusive 
upon  the  executive  branch  of  the  government," 
will  be  in  effect  that  of  the  officer  who  decides 
what  evidence  shall  go  to  them.  (20  Comp. 
Dec,  93.) 

It  is  understood  so  generally  as  hardly  to 
need  a  statement  now,  that  the  accounting  offi- 
cers do  audit  the  public  accounts  upon  the  evi- 
dence furnished  largely  by  the  certificates  of 
fact  made  by  responsible  government  officers. 
But  with  very  few  exceptions,  made  by  law, 
the  certificate  or  approval  of  an  officer  is  not 
intended  to  be  conclusive  upon  the  accounting 
officers.  The  latter  must  render  a  decision 
upon  the  legality  of  a  claim  for  payment  or  for 
credit  in  an  account,  upon  the  facts.  Upon 
them  is  cast  the  responsibility  for  securing  the 
facts.  Upon  other  officers  is  the  duty  of  fur- 
nishing upon  request  such  evidence,  in  addi- 
tion to  certificates,  as  may  be  called  for  by  the 
accounting  officers.  This  right  to  call  for  evi- 
dence is  inseparable  from  the  duty  to  audit  and 
to  decide  questions  of  law  and  of  fact.  It  must 
be  exercised  reasonably,  as  must  any  public 
duty,  but  the  accounting  officer,  and  not  an 
administrative  officer  incurring  liabilities  or 
expending  the  public  funds,  must  determine 
the  extent  to  which  it  is  necessary  to  go  in  any 
particular  case  in  collecting  the  evidence  to 
establish  what  he  believes  to  be  an  essential 
fact  as  a  basis  for  decision.    (20  Comp.  Dec,  93.) 

In  the  expenditure  of  all  public  moneys 
it  is  the  invariable  rule  to  require  that  ac- 
counts shall  be  furnished  itemized  as  far  as 
practicable,  in  order  that  the  accounting  offi- 
cers may  properly  audit  them.  The  law  may 
permit  the  exercise  of  discretion  in  the  use  of 
public  funds,  without  dispensing  with  the 
usual  requirement  of  an  itemized  account  show- 
ing fully  for  what  purposes  the  money  has  been 
expended.  (4  Comp.  Dec,  159;  4  Comp. 
Dec,  271.) 

VI.  Set-off. 

Duty  of  accounting  officers. — \Vhere  a 
person  is  both  debtor  and  creditor  of  the  United 
States  in  any  form,  the  officers  of  the  Treasury 
Department  in  settling  the  accounts  not  only 
have  the  power  but  are  required,  in  the  proper 
discharge  of  theh*  duties,  to  set  off  the  one  in- 
debtedness against  the  other,  and  to  allow  and 
certify  for  payment  only  the  balance  found  due 
on  one  side  or  the  other.  Provisions  on  this 
subject  are  contained  in  section  1766,  Revised 


244 


Treasury  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  236. 


Statutes,  and  act  of  March  3, 1875  (18  Stat.  ,481)  ; 
but  the  right  to  set  off  exists  in  such  cases  inde- 
pendently of  those  special  statutory  enactments, 
and  is  founded  upon  what  is  now  section  236, 
Revised  Statutes.  (Taggart  v.  U.  S.,  17  Ct. 
Cls.,327.) 

It  may  be  regarded  as  settled  law,  in  accord- 
ance with  the  uniform  practice,  that  the  ac- 
counting officers  have  jurisdiction,  in  proper 
cases,  in  the  course  of  settling  accounts  in  the 
Treasury  Department,  to  set  off  one  debt 
against  another,  when  a  claimant  is  both  debtor 
and  creditor.  (McRnight  v.  U.  S.,  13  Ct.  Cls., 
306;  affirmed  98  U.  S.,  179.  See  also  The 
Schooner  Henry,  35  Ct.  Cls.,  393;  Bonnafon's 
case,  14  Ct.  Cls.,  489;  Howe's  case,  24  Ct.  Cls., 
170;  Labadie  v.  U.  S.,  33  Ct.  Cls.,  476.) 

It  is  but  the  exercise  of  the  common  right, 
which  belongs  to  any  creditor,  to  apply  the 
imappropriated  moneys  of  his  debtor,  in  his 
hands,  in  extinguishment  of  the  debts  due  to 
him.     (Gratiot  v.  U.  S.,  15  Pet.,  336.) 

I  understand  it  to  be  the  duty  of  the  officers 
of  the  Government  to  enforce  this  right,  as  is 
constantly  done  by  the  courts.  (Comp.  Dec, 
Apr.  23, 1908, 86  S.  and  A.  Memo.,  638.)  [In  this 
case  the  Comptroller  held  that  the  indebted- 
ness of  naval  court-martial  prisoners  should  be 
set  off  against  pay  due  such  prisoners.  In  a 
previous  decision  the  Comptroller  based  this 
ruUng  upon  section  1766,  Revised  Statutes, 
which  provides  in  part  that  "no  money  shall 
be  paid  to  any  person  for  his  compensation  who 
is  in  an-ears  to  the  United  States."  Subse- 
quently that  section  was  construed  by  the  At- 
torney General  as  applicable  only  to  persons  who 
were  in  a  relation  of  trust  to  the  Government,  as 
contractors  or  disbursers  of  the  pubUc  funds, 
and  as  such  would  have  in  their  hands  sums  or 
balances  of  the  public  funds  for  which  they 
were  bound  to  render  accounts  and  to  turn  the 
balance  of  moneys  into  the  Treasury;  and  that 
it  did  not  apply  to  ordinary  debtors  of  the  Gov- 
ernment. (26  Op.  Atty.  Gen.,  77.)  This  opin- 
ion of  the  Attorney  General  was  brought  to  the 
Comptroller's  attention  by  the  Secretary  of  the 
Navy,  in  connection  with  the  indebtedness  of 
court-martial  prisoners.  The  Comptroller,  how- 
ever, in  the  decision  above  cited,  adhered  to 
his  former  conclusion,  holdmg  that  the  result 
was  the  same  irrespective  of  whether  or  not  the 
matter  was  covered  by  section  1766,  Revised 
Statutes.] 

Extent  of  right. — The  duty  of  the  account- 
ing officers  in  matters  of  set-off  has  been  fre- 
quently recognized  by  the  courts.  But  it  does 
not  extend  beyond  the  interest  of  the  United 
States  in  matters  involved  in  the  settlements. 
In  the  absence  of  statutory  authority,  neither 
the  accounting  officers  of  the  Treasury  nor  any 
other  public  officer  can  make  the  United  States 
agents  or  trustees  for  the  collection  of  private 
debts  between  citizens,  nor  make  contracts  in 
relation  to  the  taking  of  security  for  the  pay- 
ment of  debts  due  to  the  Government  so  as  to 
bind  the  United  States  for  any  breach  of  the 
contract  by  neglect  or  otherwise.  (Taggart  v. 
U.  S.,  17  Ct.  Cls.,  327.)  [In  this  case  it  was 
held  that  where  the  debtor  assigned  to  the  Gov- 
ernment as  collateral  security  for  his  debt,  a 
judgment  against  a  third  person  to  whom  the 


Government  was  indebted  in  a  larger  amount, 
the  accounting  officers  were  not  bound  to  collect 
the  whole  amount  of  the  judgment  and  pay  the 
balance  to  the  claimant;  but  performed  their 
full  duty  in  setting  off  against  the  Government's 
indebtedness  to  the  third  person  so  much  of  said 
judgment  as  was  necessary  to  discharge  the  in- 
debtednessof  theclaimantto  the  United  States.] 

Where  a  judgment  creditor  assents  to  the  ap- 
plication of  the  amount  of  his  judgment,  or  a 
part  thereof,  to  the  payment  of  a  debt  due  from 
him  to  the  United  States,  the  action  of  the 
Auditor  in  settling  his  accounts  accordingly 
will  not  be  disturbed  upon  a  subsequent  objec- 
tion by  him  to  such  action,  (7  Comp.  Dec, 
585;  act  Mar.  3,  1875,  18  Stat.,  481.) 

Allowances  made  by  mistake  of  law. — 
The  Government  has  authority  to  withhold 
money  due  an  officer  of  the  Navy  to  whom  an 
erroneous  payment  has  been  made,  notwith- 
standing that  the  payment  was  found  to  be 
en'oueous  only  upon  a  construction  of  law  made 
after  the  settlement  of  an  account  in  which  pay- 
ment was  allowed.  (8  Comp.  Dec,  24,  citing 
Wis.  Cent.  R.  R.  Co.  v.  U.  S.,  164  U.  S.,  190,  211; 
but  see  Hedrick's  Case,  16  Ct,  Cls.,  103.  For 
other  cases,  see  below  "VIII.  Reopening  op 

ACCOUXTS.") 

Gratuities. — Extra  pay  in  the  nature  of  a 
gratuity,  due  at  the  time  of  his  death  to  an  offi- 
cer of  the  temporary  force  of  the  Navy  for  the 
war  with  Spain,  may  be  properly  set  off  against 
a  debt  arising  from  an  overpayment  of  pay  to 
such  officer,  but  not  against  a  debt  arising  other- 
wise. [In  this  case  the  officer  at  the  time  of  his 
death  was  entitled  to  the  extra  pay,  but  had  not 
received  it;  however,  any  pay  which  he  had 
received  in  excess  of  the  amount  to  which  he 
was  entitled,  was  regarded  as  to  that  exteiit  a 
prepayment  of  the  extra  pay.]  (6  Comp.  Dec, 
353;  explained,  8  Comp.  Dec,  310;  see  also  Sem- 
plei;.  tJ.  S.,24Ct.  Cls.,  422.) 

However,  where  extra  pay  in  the  natiure  of  a 
gratuity  was  granted  by  statute  to  officers  of  the 
Na\'y  who  served  during  the  war  with  Mexico, 
and  the  statute  specified  the  beneficiaries  to 
whom  the  gratuity  should  be  paid  in  event  of 
the  death  of  the  officer  before  recei\dng  same, 
held  that  indebtedness  of  an  officer  to  the 
United  States,  even  because  of  overpayments  of 
pay,  could  not  be  set  off  against  the  gratuity  due 
liis  next  of  kin,  the  officer  in  this  case  ha\'ing 
died  before  the  statute  was  passed  and  therefore 
not  having  acquired  any  right  to  the  extra  pay 
at  the  time  of  his  death.  Under  such  circum- 
stances the  extra  pay  under  the  statute  was  in 
the  nature  of  a  direct  grant  to  the  officer's  heirs. 
(8  Comp.  Dec,  308.) 

"WTiere  an  appropriation  was  made  to  be  paid 
to  the  administrator  of  a  decedent's  estate,  said 
decedent  having  been  an  original  sufferer  from 
the  French  spoliations,  the  Secretary  of  the 
Treasiny  was  not  authorized  to  withhold  the 
amount  of  decedent's  indebtedness  to  the 
United  States,  the  appropriation  having  been 
made  for  the  benefit  of  the  next  of  kin  of  the 
original  sufferer.     (5  Comp.  Dec,  866.) 

Indebtedness  under  a  previous  enlist- 
raent. — ^^^lere  an  enlisted  man  is  discharged 
from  the  Navy  in  debt  to  the  United  States,  and 
is  subsequently  reenlisted,  the  amount  of  his 


246 


Sec.  236. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


indebtedness  on  discharge  from  the  previous 
enlistment  may  legally  be  set-off  against  pay 
coming  due  liim  under  his  current  enlistment. 
(Comp.  Dec,  Apr.  7, 1914,  158  S.  and  A.  Memo., 
3037.) 

However,  where  a  man  is  discharged  from  the 
Navy  upon  expiration  of  enlistment  without 
having  been  fully  checked  the  amount  of  a 
sximmary  court-martial  sentence,  because  of 
BufTuient  pay  not  having  accrued  to  satisfy  the 
forfeiture,  the  amount  of  such  sentence  which 
remained  unchecked  at  date  of  discharge,  can 
not  be  set  off  against  pay  coming  due  the  man 
under  a  subsequent  enlistment  in  the  Na\'y. 
His  discharge  from  the  previous  enlistment 
operated  as  a  remission  of  the  unexecuted  por- 
.tion  of  the  forfeiture,  and  the  man  was  not, 
therefore,  indebted  to  the  United  States  on  that 
account.  (Comp.  Dec,  Apr.  6, 1914, 158  S.  and 
A.  Memo.,  3035;  file  7657-241,  June  26, 1914.) 

Where  a  man  is  paid  all  money  coming  due 
him  under  his  current  enlistment,  without  set- 
ting off  hia  indebtedness  to  tlie  United  States 
under  a  former  enlistment,  the  pay  officer  is  not 
liable  to  checkage  if  it  appear  that  he  had  no 
knowledge  of  the  man's  indebtedness  accruing 
under  a  former  enlistment;  and  there  were  not 
sufficient  facts  to  put  him  on  his  inquiry.  Pre- 
sumption of  indebtedness  in  such  case  does  not 
arise  from  knowledge  of  former  service,  and  it  is 
not  the  duty  of  a  pay  officer  in  the  Navy  to  in- 
vestigate upon  reenlistment  the  account  of  a 
man  under  a  previous  enlistment.  (Comp. 
Dec,  Apr.  7, 1914, 158  S.  and  A.  Memo.,  3037.) 

Set-oflf  of  imadjudicated  claim  by  the 
Government.— The  salary  of  a  public  officer 
fixed  by  statute  and  indisputably  due  him, 
can  not  be  withheld  because  of  alleged  indebt- 
edness by  him  to  the  Government,  denied  by 
the  officer,  and  never  adjudicated  against  him 
by  any  court.  The  officer  in  such  case  can  re- 
quire payment  of  his  lawful  salary  by  man- 
damus proceedings,  the  question  of  his  indebt- 
edness being  a  matter  for  judicial  determination 
upon  suit  against  him  by  the  Government. 
(Smith  1).  Jackson,  241  Fed.  Rep.,  747;  affirmed 
246  U.  S.,  388.) 

Set-off  against  Government. — An  officer 
of  the  Government  who  has  in  his  hands  money 
of  the  United  States  is  entitled  to  retain  it  by 
way  of  set-off  where  the  United  States  are  in- 
debted to  such  officer  for  fees  of  office;  and  on  a 
motion  made  on  the  part  of  the  United  States  to 
commit  the  officer  for  failure  to  pay  over  the 
money  in  his  hands,  he  will  be  permitted  to 
show  that  the  United  States  are  indebted  to 
him,  and  if  this  be  shown  it  is  a  sufficient  cause 
why  he  should  not  be  attached.  (U.  S.  v. 
Mann.  26  Fed.  Cas.  No.  15716,  per  Marshall,  Cir- 
cuit Justice.  See  also  U.  S.  v.  Ripley,  7  Pet., 
24;  compare  U.  S.  v.  Giles,  9  Cranch,  236.) 

VIl.  Effect  of  Accounting  Officers'  Ac- 
tion. 

Conclusive  upon  Executive  Depart- 
ments.— For  a  long  series  of  years,  extending 
from  the  first  organization  of  the  Treasury 
Department  to  1868,  there  was  a  controversy 
as  to  how  far,  if  at  all,  the  balances  and  action 
of  a  Comptroller  were  subject  to  revision  and 


change  by  the  heads  of  departments  or  the 
President.  Upon  the  advice  of  several  Attor- 
neys General,  the  question  was  practically  set- 
tled against  the  right  of  the  President,  aiid  in 
favor  of  the  Secretary  of  the  Treasury.  But  the 
Comptrollers  yielded  with  reluctance,  and  in 
1868  an  act  was  passed  which  was  afterwards  in- 
corporated into  the  Revised  Statutes  as  section 
191,  which  provided  that  the  balances  certified 
by  the  Comptrollers  "shall  be  conclusive  upon 
the  Executive  branch  of  the  Government  and 
be  subject  to  re\dsion  only  by  Congress  or  the 
proper  courts."  (McKnigh't  v.  United  States, 
13  Ct.  Cls.,  307,  affirmed  98  U.  S.,  179;  McKee 
V.  U.  S.,  12  Ct.  Cls., 553,  reversed  97  U.  S.,  233.) 
The  object  of  this  law  (sec.  191,  R.  S.)  appears 
to  have  been  to  settle  a  long-standing  contro- 
versy and  render  the  Comptrollers  independent 
in  their  action  of  the  heads  of  departments  in 
certifying  balances  of  accounts,  and  not  to  give 
to  the  decisions  of  those  officers  the  character 
of  awards  absolutely  binding  upon  the  United 
States.  It  will  be  observed  that  the  inde- 
pendence of  the  Comptrollers  provided  for  by 
that  act  only  extends  to  the  certified  balances 
which  cannot  be  changed  or  modified  by 
other  executive  officers;  but  in  all  other  mat- 
ters of  accounting,  the  superiority  of  the  power 
of  the  Secretary  of  the  Treasuiy  is  not  modified 
but  is  left  as  it  was  before .  [Section  191 ,  Revised 
Statutes,  was  repealed  and  superseded  by  the 
act  of  July  31,  1894,  section  8  (28  Stat.,  "208), 
which  also  provided  that ' '  the  Secretary  of  the 
Treasury  may,  when  in  his  judgment  the  inter- 
ests of  the  Government  require  it,  suspend 
payment  and  direct  the  reexamination  of  any 
account."]  (McKnight^).  U.  S.,  13  Ct.  Cls.,  307, 
affirmed  98  U.  S.,  179.) 

Before  the  enactment  of  the  provisions  of  that 
section  (191,  R.  S.),  it  had  been  the  practice  of 
the  President  and  heads  of  departments  to 
interfere  and  give  directions  to  the  accounting 
officers  in  the  matter  of  settling  accounts,  and 
to  change  or  attempt  to  change  the  balances 
stated  by  them.  The  accounting  officers  re- 
sisted the  practice,  and  the  controversy  in  dif- 
ferent forms  was  several  times  referred  to  the 
Attorney  General,  who  advised  that  the  Presi- 
dent was  without  such  authority,  but  that  the 
heads  of  departments,  especially  the  Secretary 
of  the  Treasury  did  have  the  power,  from  the 
nature  and  general  duties  of  their  offices.  (1 
Op.  Atty.  Gen.,  624,  678,  705;  2  Op.  Attv.  Gen., 
303,  652;  5  Op.  Atty.  Gen.,  87,  630).  T?he  act 
was  passed  apparently  to  settle  conclusively 
the  long-standing  controversy  between  execu- 
tive officers,  and  to  prevent  the  interferences 
of  others  in  the  settlement  of  accounts  by  the 
accounting  officers.  (McKee's  case,  12  Ct.  Cls., 
554,  reversed  97-  U.  S.,  233.)  It  makes  conclu- 
sive upon  the  executive  branch  of  the  Govern- 
ment only  the  "balances"  stated  by  the  latter 
officers  and  their  "decision  thereon,"  for  the 
purpose  of  determining  for  what  amounts,  if 
any,  warrants  may  be  drawn  on  the  Treasurer. 
It  does  not  make  such  decisions  conclusive 
upon  the  head  of  a  department  in  the  exercise 
of  his  discretion  as  to  orders  to  be  issued  to 
his  subordinates.  (Billings  v.  U.  S.,  23  Ct. 
Cls.,  179;  see  file  26254-1451:11;  and  see  above, 
V  (A)). 


246 


Treasury  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  236. 


The  law  devolves  upon  the  accounting  offi- 
cers of  the  Treasury  the  duties  of  examining, 
settling  and  adjusting  all  accounts,  claims  and 
demands  in  which  the  United  States  are  con- 
cerned, either  as  debtors  or  as  creditors,  and  to 
certify  balances  arising  thereon,  and  their 
exercise  of  such  duties,  including  the  weighing 
of  evidence,  the  construction  of  statutes,  and 
the  application  of  general  principles  of  law  in 
connection  therewith,  is  exclusive  unless  other- 
wise provided  by  special  statute.  (14  Comp. 
Dec,  143.)  [But  see  note  to  section  356,  Re- 
vised Statutes, ' '  Jurisdiction,  Accounting  Offi- 
cers and  Attorney-General."] 

^^^lere  the  action  of  the  Comptroller  of  the 
Treasury  is  final  and  conclusive  upon  the  head 
of  an  executive  department,  the  latter' s  action 
in  directing  that  the  settled  accounts  be  reex- 
amined bv  a  subordinate  is  of  no  validity. 
(Baltiniore&OhioR.Co.i'.U.S.,34Ct.Cls.,504.) 

The  act  of  July  31,  1894,  section  8,  provides 
that  balances  certified  by  the  auditors  shall  be 
'■final  and  conclusive  upon  the  executive 
branch  of  the  Government,"  except  that  a 
revision  thereof  by  the  Comptroller  of  the 
Treasury  may  be  obtained  within  a  year, 
"whose  decision  upon  such  revision  shall  be 
final  and  conclusive  upon  the  executive 
branch  of  the  Government;"  and  "that  the 
Secretary  of  the  Treasury  may,  when  in  his 
judgment  the  interests  of  the  Government 
require  it,  suspend  payment  and  direct  the 
reexamination  of  any  accoiint"  (28  Stat.,  207); 
the  same  section  also  authorizes  the  Comptroller 
of  the  Treasuiy  to  render  a  decision  in  advance 
of  payments,  "which  decision,  when  rendered, 
shall  govern  the  auditor  and  the  Comptroller  of 
the  Treasury  in  passing  upon  the  account  con- 
taining said  disbursement."    (28  Stat.,  208.) 

Not  conclusive  upon  Congress  or 
Courts. — The  action  of  the  accounting  officers 
of  an  executive  department  was  never  con- 
sidered as  a  conclusive  determination  when  the 
question  was  brought  before  a  court  of  justice. 
The  law  intended  to  make  the  decisions  of  the 
accounting  officers  final  and  conclusive  so  far 
as  the  executive  department  was  concerned, 
but  not  to  affect  the  powers  of  the  legislature 
or  of  the  judiciary.  The  action  of  the  account- 
ing officers  is  not  conclusive  in  a  suit  between 
the  United  States  and  the  individual.  (U.  S. 
t;,  Harmon,  147  U.  S.,  274,  275.) 

Whatever  the  conclusiveness  of  executive 
acts  so  far  as  executive  departments  are  con- 
cerned, as  a  rule  of  administration,  it  has  long 
been  settled  that  the  action  of  executive  offi- 
cers in  matters  of  account  and  payment  cannot 
be  regarded  as  a  conclusive  determination  when 
brought  in  question  in  a  court  of  justice.  (Wis- 
consin Cent.  R.  R.  Co.  v.  U.  S.,  164  U.  S.,  205, 
citing  U.  S.  V.  Harmon,  43  Fed.  Rep.,  560,  147 
U.  S.  268;  Hunter  v.  U.  S.,  5  Pet,  173;  U.  S.  v. 
Jones,  8  Pet.,  387;  U.  S.  v.  Bank  of  Metropolis, 
15  Pet.,  377.) 

Accounts  and  balances  stated  and  certified 
by  the  accounting  officers  are  neither  conclusive 
nor  prima  facie  evidence  of  the  indebtedness 
of  the  Government,  in  a  judicial  proceeding, 
nor  can  an  action  be  brought  upon  them. 
(McKnight's  case,  13  Ct.  Cls.,  292;  affirmed 
98  U.  S.,  179.) 


A  settlement  of  an  account  is  not  consum- 
mated and  payment  authorized  until  a  warrant 
has  been  prepared  and  issued  to  the  payee  or  his 
attorney;  the  different  processes  of  accounting 
are  not  consummated  beyond  recall  until  the 
claimants  receive  the  negotiable  drafts  of  the 
Treasurer;  such  drafts  are  understood  to  con- 
stitute new  contracts  on  the  part  of  the  Govern- 
ment, in  which  the  previous  claim,  upon  which 
they  issue,  are  merged.  The  certificates  and 
orders  made  previous  to  the  issuing  of  the  drafts 
are  departmental  proceedings.  Parties  gain 
no  new  rights  thereby  into  which  their  former 
rights  of  action  are  merged,  and  upon  which  ac- 
tions can  and  must  be  brought  as  upon  an 
award.  Accordingly,  held  that  a  certificate  of 
the  Comptroller  of  the  Treasury,  certifying  the 
amount  of  a  l^alance  due  to  a  Government  con- 
tractor, and  a  warrant  addressed  to  the  Treas- 
urer, duly  countersigned  and  registered  for 
payment  of  the  same,  did  not  constitute  con- 
clusive e\'idence  in  a  suit  in  the  Court  of  Claims 
to  recover  an  uni^aid  balance  of  the  original 
amount  so  certified  to  be  due  by  the  Comp- 
troller, but  which  was  withheld  upon  order  of 
the  Secretary  of  the  Treasury  as  a  set-off  on 
account  of  a  debt  due  the  United  States. 
Further,  held  that  the  decision  of  the  account- 
ing officers  in  favor  of  the  claimant  is  not  even 
prima  facie  evidence  of  indebtedness  when  suit 
is  l)rought  in  the  Court  of  Claims.  The  func- 
tions of  that  court  are  to  hear  and  determine 
original  claims  and  demands  against  the  United 
States,  founded  on  contract,  statute,  or  De- 
partmental regulation,  and  not  upon  the  reports 
and  action  of  accovmting  officers  made  for  pur- 
poses altogether  different  from  that  of  submis- 
sion to  any  court.  Claimants  are  required  to 
establish  their  rights  in  the  Court  of  Claims  by 
original  and  legal  evidence,  and  are  not  to 
rely  upon  reports  and  certificates  of  officers 
who  pass  upon  claims  without  the  formality 
of  such  evidence  and  proofs  as  are  required  in 
courts  of  justice;  certificates  made  upon  ex 
parte  affidavits,  often  of  claimants  and  inter- 
ested parties;  documents  not  proA^en  under 
oath,  and  reports  of  other  officers  not  sworn  to, 
and  other  evidence  satisfactory  to  them,  and 
which  under  all  the  circumstances  may  be 
trustworthy  to  a  greater  or  lesser  extent,  as  is 
the  unsworn  and  hearsay  e\adence  on  which 
most  of  the  business  of  daily  life  outside  of  the 
courts  is  conducted,  but  which  may  be  wholly 
incompetent  in  the  Court  of  Claims.  The 
statement  of  accounts  upon  such  evidence,  by 
accounting  officers  who  have  no  other  knowl- 
edge of  the  facts,  would  he  an  unsatisfactory 
foundation  on  which  to  rest  a  prima  facie  case 
against  the  United  States  when  parties  come 
into  court  to  set  up  and  enforce  their  legal 
rights.  (McKnight  v.  U.  S.,  13  Ct.  Cls.,  292; 
affirmed  98  U.  S.,  179.) 

[However,  there  are  certain  classes  of  claims, 
where  the  claimant's  rights  and  the  UabiUty 
of  the  United  States  are  not  fixed  until  the  dis- 
cretion of  some  designated  officer  has  been  ex- 
ercised thereon,  and  an  allowance  made  by 
him;  in  all  these  cases,  the  officer  charged  by 
statute  with  the  duty  of  allowing  or  disallow- 
ing the  claim  in  his  discretion,  or  according  to 
his  judgment,  must  first  act  before  the  claim- , 


247 


Sec.  236. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


ant's  right  is  fixed.  Then  when  claimant  haa 
obtained  a  decision  of  such  oflicer  in  his  favor 
his  demand,  of  which  that  decision  is  a  prima 
facie  if  not  conchisive  determination,  if  the 
othccr  acts  within  the  scope  of  his  authority  and 
in  accordance  with  the  provisions  of  law,  may 
be  the  foundation  of  an  action  in  the  Court  of 
Clainis  or  may  pass  the  accoimting  olRcers  and 
be  paid  by  drafts  upon  warrant  duly  issued,  as 
in  other  cases.  (McKnighti;.  U.  S.,  13  Ct.  Cls., 
308,  309  affii-med  98  U.  S.,  179;  file  26543-66, 
Sept.  8,  1911.)] 

The  idea  that  the  Government  is  finally  con- 
cluded by  the  result  at  which  the  accounting 
officers  of  the  Government  may  arrive,  would  be 
regarded  as  a  novelty  within  and  without  the 
several  departments.  (Chorpenning  v.  U.  S., 
94  U.  S.,  397.) 

In  the  case  of  an  unliquidated  claim 
against  the  United  States,  where  such  claim 
is  settled  by  the  accounting  officers,  and  the 
claimant  accepts  payment  under  such  settle- 
ment without  objection,  this  ia  a  complete 
discharge  of  his  demand  against  the  Govern- 
ment, and  he  can  not  thereafter  recover  a  fur- 
ther sum  by  suit  in  the  Court  of  Claims.  [In 
this  case,  there  was  a  contract  by  which  the 
Government  was  bound  to  pay  in  accordance 
with  the  terms  agreed  upon,  but  the  entire 
price  to  be  paid  was  not  fixed,  a  part  being 
contingent  and  being  made  to  depend  upon  a 
variety  of  circumstances.]  (Baird  v.  U.  S.,  96 
U.  S.,430.) 

In  case  of  a  liquidated  debt  or  demand, 
part  payment  of  the  amount  due  cannot  dis- 
charge the  liability  of  the  Government  for  the 
balance,  any  more  than  in  similar  transactions 
between  individuals.  (Baird  v.  U.  S.,  96  U.  S., 
430.) 

For  other  cases,  see  'IV.  Jurisdiction, 
Accounting  Officers,  and  Federal  Courts." 

VIII.  Reopening  op  Accounts. 

(A)  In  general. 

(B)  Mistake  of  fact. 

(C)  Mistake  of  law . 

(D)  Subsequent  administration. 

(E)  Same  administration. 

See  note  to  section  417,  Revised  Statutes, 
"Power  of  Secretary  to  review  acts  of  pred- 
ecessor." 

The  Secretary  of  the  Treasury  may,  when  in 
his  judgment  the  interests  of  the  Govern- 
naent  require  it,  suspend  payment  and 
direct  the  reexamination  of  any  account. 
(Act  July  31,  1894,  sec.  8,  28  Stat.,  207.) 

Any  person  whose  accounts  may  have  been 
settled,  tlie  head  of  the  executive  depart- 
ment, or  of  the  board,  commission,  or  es- 
tablishment not  under  the  jurisdiction  of 
an  executive  department,  to  which  the 
account  pertains,  or  the  Comptroller  of  the 
Treasury,  may,  within  a  year,  obtain  a  re- 
vision of  an  account  by  the  Comptroller  of 
the  Treasury,  whose  decision  upon  such  re- 
vision shall  be  final  and  conclusive  upon 
the  executive  branch  of  the  Government. 
(Act  July  31,  1894,  sec.  8,  28  Stat.,  207.) 


(A)  In  general. 

After  the  expiration  of  a  year  from  the 
date  of  an  auditor's  settlement  of  an  account, 
which  has  not  been  revised  by  the  Comptroller 
of  the  Treasury,  under  the  established  rules  for 
reopening  accounts  the  auditor  would  be  au- 
thorized to  reopen  his  previous  settlement 
upon  newly  discovered  material  evidence.  (4 
Conip.  Dec,  303;  8  Comp.  Dec,  24.) 

Where  the  account  of  a  disbursing  ofli- 
cer of  the  Navy  has  been  settled  by  the 
accounting  officers,  it  is  not  competent  for  the 
auditor  at  an  after  time,  upon  an  allegation  of 
error  or  omission,  or  for  other  cause,  to  open 
the  account,  restate  it,  and  upon  the  account 
thus  restated  to  institute  proceedings  by  a  war- 
rant of  distress  against  the  debtor.  If,  after  the 
account  had  once  been  stated  and  closed,  the 
accounting  officers  could  open  it  again,  there 
would  be  no  limitation  either  as  to  the  length 
of  time  or  the  frequency  with  which  such  ac- 
tion might  be  taken.  Also,  if  it  be  competent 
to  open  the  account  in  favor  of  the  United 
States,  the  converse  of  the  proposition  must  be 
equally  true,  upon  the  principles  of  justice. 
A  doctrine  which  leads  to  such  consequences 
can  not  be  sound.  The  Government  is  not 
without  ample  remedy  tliough  this  power 
should  be  denied  to  the  auditor,  as  it  could  re- 
cover in  an  action  at  law  any  sums  of  which  it 
had  been  unjustly  deprived.  (Ex  parte  Ran- 
dolph, 20  Fed.  Cas.  No.  11558,  opinion  of 
Barbom-,  J.,  concizrred  in  by  Marshall,  Circuit 
Justice.) 

The  accounts  of  paymasters  never  being 
closed,  the  accounting  officers  may  secm-e  im- 
mediate payment  of  balances  due  from  them 
and  yet  open  and  readjust  their  accounts  at 
any  time.     (Stevens  v.  U.  S.,  41  Ct.  Cls.,  344.) 

Similarly,  the  account  of  a  retired 
oflH.cer  is  never  closed  from  the  date  of  his  re- 
tirement. Overpayments  made  at  one  time  by 
mistake  can  be  corrected  and  properly  charged 
against  credits  coming  in  afterwards.  (U.S. v. 
Burchard,  125  U.  S.,  176.) 

No  settlements  are  agreed  upon  as  final 
between  a  contractor  and  the  United  States, 
where  the  contract  relations  still  continue  and 
have  continued  consecutively  since  the  first 
overpayment;  although  it  is  true  that  accounts 
have  been  stated  by  the  accounting  officers 
and  payments  made  quarterly.  For  the  pur- 
pose of  rectifying  mistakes,  the  items  of  the 
several  statements  upon  which  the  auditor 
certifies  balances  due  for  carrying  the  mails, 
ordinarily  and  in  the  absence  of  special  cir- 
cumstances, may  be  regarded  as  running  ac- 
counts, at  least  while  the  parties  continue  in 
the  same  dealings  between  themselves.  (Du- 
val's case,  25  Ct.  Cls.,  46,  58;  approved  Wiscon- 
sin Cent.  R.  R.  Co.  v.  U.  S.,  164  U.  S.,  190,  211.) 

(B)  Mistake  of  fact. 
It  is  estabhshed  by  numerous  decisions  on 
the  subject  that  where  payments  are  made  by 
a  public  officer  in  violation  of  law,  but  through 
nustake  of  fact  as  distinguished  from  mistake 
or  error  of  law,  the  Government  has  a  clear 
right  to  recover  back  the  overpayment.  (Du- 
val's case,  25  Ct.  Cls.,  58.) 


248 


Treasury  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  236. 


(C)  Mistake  of  law. 


1.  OPINIONS   OF  ATTORNEYS-GENERAL. 

2.  COURT   OP   CLAIMS   DECISIONS. 

3.  DECISIONS   OF   SUPREME   COURT. 

4.  MISCELLANEOUS   DECISIONS. 


[In  private  dealings  between  individuals  the 
general  rule  has  been  established  that  money 
paid  with  full  knowledge  of  all  the  facts 
involved,  but  through  a  mistaken  view  of  the 
law  applicable  to  such  facts,  can  not  be 
recovered  back,  the  rule  being  founded  on 
the  legal  maxim  "Ignorantia  legis  neminem 
excusat".  In  some  cases  it  has  been  broadly 
stated  that  this  rule  applies  to  overpayments 
made  by  a  public  officer,  the  same  as  in  the  case 
of  private  parties;  while  in  others  it  has  been 
stated  that  upon  grounds  of  public  policy  the 
rule  has  no  application  whatever  to  the  Govern- 
ment, which  can  not  be  bound  by  the  mistakes 
of  its  officers,  whether  of  fact  or  of  law.  How- 
ever, an  examination  of  the  authorities  will  dis- 
close that  the  question  whether  or  not  the  rule 
shall  be  applied  to  overpayments  made  by  pub- 
lic officers  has  been  governed  by  the  facts  of  the 
particular  case.  Thus,  where  the  circumstances 
are  such  that  the  one  receiving  the  overpay- 
ment could  not,  ex  aequo  et  bono,  be  required 
to  refund  same  to  the  Government,  the  general 
rule  has  been  applied ;  while,  on  the  other  hand, 
when  the  situation  was  reversed,  it  has  been 
held  that  the  Government  was  entitled  to  re- 
cover back  the  amount  of  the  overpayment. 
(See  file  26254-2160:2,  June  7, 1917,  Sec.  Navy 
to  Comp.  Treas.) 

[It  is  also  settled  that  where  the  one  receiv- 
ing the  overpayment  does  not  acquiesce  in  the 
settlement,  but  himself  seeks  to  have  the  ac- 
count reopened  and  corrected  to  his  advantage, 
the  Government  has  the  right,  at  the  same 
time,  to  have  corrected  errors  committed  in  the 
settlement,  to  its  prejudice,  although  due  to 
mistake  of  law.     (See  2  Ency.  U.  S.  Rept.,  515.) 

[The  decisions  on  this  subject  are  set  forth 
below.] 

1.    OPINIONS    OP   ATTORNEYS    GENERAL. 

Where  the  Govemin.ent  has  voluntarily 
paid  money  in  consequence  of  an  erroneous 
construction  of  the  law,  _  adopted  without 
due  reflection  and  examination  of  the  Treasury 
Department,  I  do  not  recommend  that  the 
claimant  be  called  upon  to  refund  the  moneys 
he  has  received.  I  am  accustomed  to  advise 
acquiescence  in  what  is  done  as  done.  (6  Op. 
Atty.  Gen.,  568.) 

But  if  claimant  insists  on  having  his 
accounts  opened  to  readjust  them,  with  a 
view  to  correcting  errors  committed  to  his 
prejudice,  it  would  be  right,  and  the  duty  of 
the  accounting  officers,  to  correct  at  the  same 
time  any  error  committed  to  the  prejudice  of 
the  Government.  The  effect  of  this  will  be 
that  if  the  accounts  are  reopened  at  the  instance 
of  the  claimant,  the  readjustment  must  be  com- 
plete and  legal  in  all  its  parts,  and  he  may  be 
called  upon  to  account  for  the  money  which  he 


has  received  heretofore  by  mistake  of  law.     (6 
Op.  Atty.  Gen.,  576.) 

Where  an  account  has  once  been  duly 
adjusted,  settled,  and  closed  by  the  proper 
officers,  with  full  knowledge  of  all  the  factsand 
where  no  errors  in  calculation  have  been  made, 
it  has  been  repeatedly  held  that  it  can  not  be 
reopened  without  express  authority  of  law,  and 
must  be  regarded  as  final  and  conclusive.  No 
subsequent  decision  upon  a  doubtful  or  con- 
troverted question  of  law,  essentially  modify- 
ing a  prevailing  rule  which  was  applied  to  the 
settlement  of  an  account,  would  authorize  the 
reopening  of  it,  with  a  view  to  a  readjustment 
of  it  in  accordance  wdth  such  decision.  (12 
Op.  Atty.  Gen.,  386.) 

Upon  principles  of  administrative  pohcy 
which  ought  to  be  considered  firmly  estab- 
lished, settlements  made  between  an  officer  of 
the  Army  and  the  accounting  officers  in  the 
matter  of  his  pay  are  conchisive  upon  the 
executive  department  of  the  Government;  and 
such  settlements  can  not  be  reopened  years 
afterwards,  upon  the  allegation  that  overpay- 
ments had  been  made  to  the  officer  with  full 
knowledge  of  all  the  facts,  but  under  a  mis- 
taken view  of  the  law,  and  that  such  overpay- 
ments should  be  recovered  by  set-off  against 
allowances  coming  due  and  to  which  he  is 
legally  entitled.  (17  Op.  Atty.  Gen.,  448;  fol- 
lowed, 19  Op.  Atty.  Gen.,  439.) 

The  principle  that  every  one  is  assumed 
to  know  the  law  can  be  rehed  on  by  the 
citizen  in  his  defense  when  sued  by  the  Gov- 
ernment for  an  overpayment  made  to  him  under 
a  mistake  of  law;  and  the  Government  may 
equally  rely  on  the  same  principle  as  a  defense 
when  sued  by  the  citizen.  Accordingly,  a 
settlement  of  the  accounting  officers  can  not  be 
reopened  on  application  of  claimant  because  of 
a  subsequent  decision  of  the  Supreme  Court 
holding  the  accounting  officers'  construction  of 
the  law  to  be  erroneous.  If  it  had  happened 
that  the  claimant  had ,  through  a  mistake  of  law 
of  the  accounting  officers  of  the  United  States, 
been  paid  too  much  instead  of  too  little,  it 
would  seem  quite  clear  that  the  excess  could 
not  be  recovered  back,  if  the  principle  appli- 
cable to  a  similar  case  between  individuals 
should  govern;  and  the  Supreme  Court  of  the 
United  States  have  said  that,  "with  a  few  ex- 
ceptions, growing  out  of  considerations  of 
public  policy,  rules  of  law  which  apply  to  the 
Government  and  to  individuals  are  the  same. 
There  is  not  one  law  for  the  former  and  another 
for  the  latter."  (19  Op.  Atty.  Gen.,  439,  citing 
McKnightt'.U.S.,98U.S.,  186.) 

A  voluntary  payment  made  with  full 
knowledge  of  aU  the  facts  and  circumstances 
of  the  case,  althoiigh  made  under  a  mistaken 
view  of  the  law,  can  not  be  revoked  and  the 
money  so  paid  can  not  be  recovered  back;  this 
principle  applies  in  the  case  where  an  officer 
of  the  Army  was  allowed  a  claim  for  ser^ace  pay 
by  the  accounting  officers,  and  the  Supreme 
Court  thereafter  held  all  such  allowances  to  be 
without  authority  of  law.  Afterwards  the 
officer  filed  a  claim  for  certain  pay  and  allow- 
ances to  which  he  was  justly  entitled,  and  it 
was  proposed  to  set  off  against  the  amount  of 
this  claim  the  sum  which  had  been  improperly 


249 


Sec.  236. 


Pt.  2.  REVISED  STATUTES. 


Treasury  Department. 


paid  liim.  In  such  case  the  settlement  could 
not  be  reopened  upon  the  ground  that  it  pro- 
ceeded on  a  mistaken  view  of  the  legislation 
covering  the  sul)ject  involved.  (21  O]).  Atty. 
Gen.,  ;52r),  explaining  19  Op.  Atty.  Gen.,  439.) 

In  the  case  of  an  ignorant  and  unlettered 
private  soldier  the  rule  of  law  should  apply, 
a  multo  l\)rtiori  (for  much  stronger  reasons), 
which  has  been  invoked  for  the  relief  of  edu- 
cated and  experiencetl  ofKcers  of  the  Army, 
viz,  that  payments  made  by  mistake  of  law 
can  not  be  recovered  by  the  Government.  (21 
Op.  .\tty.  Gen.,323.) 

Navy  pay  officers  are  not  responsible  for 
payments  made  by  mistake  of  law,  if  such  pay- 
meiits  are  made  on  certified  pay  rolls,  as  re- 
quired by  the  Navy  regulations,  and  the  items 
are  fair  on  their  face.  (Op.  Atty.  Gen.,  May  19, 
1915,  171  S.  and  A.  Memo.,  3611.) 

2.   COURT   OF   CLAIMS   DECISIONS. 

The  rule  that  the  Government  can  not 
be  held  responsible  for  the  mistakes  of  its 
agents  includes  mistakes  of  law  as  well  as  mis- 
takes of  fact,  and  extends  to  a  mistake  of  law 
committed  by  the  accounting  officers  in  adjust- 
ing and  allowing  an  account  of  one  supposed  to 
be  but  not  an  officer  of  the  Government.  (Mc- 
Elrath  v.  U.  S.,  12  ("t.  Cls.,  202.)  (See  decision 
of  Supreme  Court  affirming  this  case,  noted  be- 
low under  "3.  Decisions  of  Supreme  Court.") 

Where  one  has  received  raoney  to  which, 
ex  aequo  et  bono,  he  is  not  entitled,  the 
general  rule  of  law  and  equity  is  that  an  action 
lies  for  its  recovery.  The  only  exception  to  this 
rule  is  that  where  between  individuals  the 
money  has  been  paid  by  a  mistake  of  law  it  can 
not  be  recovered ;  and  we  think  this  exception 
is  not  applicable  to  the  United  States.  (McEl- 
rathv.  U.  S.,  12  Ct.  Cls.,  217.) 

The  United  States  do  not  guarantee 
either  the  capacity,  the  integrity,  or  the 
care  of  their  officers,  and  are  not  responsible 
for  their  deficiencies  in  either.  As  the  reason  of 
this  rule  is  the  public  protection,  it  overrules 
individual  equities;  and  as  this  rule  is  founded 
on  "a  great  public  policy"  established  for  the 
public  protection,  it  does  not  admit  of  excep- 
tions but  includes  mistakes  of  law  as  well  as 
mistakes  of  fact,  because  the  one  may  be  as  inju- 
rious to  the  public  interests  as  the  other. 
(McElrath  v.  U.  S.,  12  Ct.  Cls.,  216.) 

It  is  manifest  the  petitioner  has  no 
equitable  claim  to  the  money  he  received  by 
mistake  of  the  accounting  officers.  He  was 
legally  dismissed  as  an  officer  of  the  Marine 
Corps,  and  seven  years  later  there  was  an  at- 
tempted revocation  of  the  order  of  dismissal, 
and  claimant  then  tendered  his  resignation, 
■which  was  accepted.  He  rendered  no  8er^dce 
to  the  Government  after  his  dismissal  and  he 
intended  to  render  none.  But  the  accounting 
officers  allowed  him  half  pay  for  this  period, 
■when  he  was  not  in  law  or  in  fact  an  officer  of  the 
Marine  Corps,  and  he  thereupon  sued  for  the 
difference  between  half  pay  and  full  pay  for  said 
period.  Under  such  circumstances  'the  Gov- 
ernment is  entitled  to  recover  the  unanthorized 
payment  by  counterclaim.  (McEhath  v.  U.  S., 
12  Ct.  Cls.,  217.)    (The  court  gave  judgment 


against  McElrath  because  the  accounting  offi- 
cers exceeded  their  jurisdiction  in  allowing  him 
pay  when  he  was  not  in  oOice  and  rendered  no 
service,  and  therefore  had  no  legal  claim  to  the 
money  paid  him  and  could  not  in  conscience 
retain  it.  McKeeti.  U.  S.,  12  Ct.  Cls.,  562,  dis- 
senting opinion  Richardson,  J.) 

The  principles  stated  in  McElrath 's  case 
might  not  applyiftheComptroller  were  to  give 
a  construction  to  a  statute  different  from  that 
which  the  judiciary  might  subsequently  give, 
whereby  the  officer  would  receive  greater  pay 
or  larger  allowances  than  the  law  intended .  In 
such  a  case  I  am  not  prepared  to  say  that  the 
Government  could  reopen  the  transaction  and 
recover  back  the  overpayment  as  money  paid 
without  legal  authority  in  its  official  agents. 
But  in  this  case  the  claimant  was  an  utter 
stranger  to  the  Government.  No  business  or 
official  relations  suV)sisted  between  him  and  the 
Government  and  he  had  no  claim  or  account 
against  the  Government  for  the  Comptroller  to 
adjust.  (McElrath  v.  U.  S.,  12  Ct.  Cls.,  218, 
concurring  opinion,  Nott,  J.) 

McElrath  -was  not  an  officer  in  the  Navy, 
nor  had  he  been  for  any  part  of  the  period  over 
which  his  pretended  account  extended;  nor 
had  he  rendered  any  ser^vice  as  such;  nor  had 
any  legal  relations  between  him  and  the  Gov- 
ernment existed.  The  Comptroller  therefore 
acted  ab  initio -without  authority;  and  his  mis- 
take, whether  of  law  or  of  fact,  that  he  had 
jurisdiction  of  the  pretended  account,  gave  him 
none.  There  is  a  very  broad  difference  between 
that  case  and  one  in  which  the  Comptroller  has 
jurisdiction  of  the  account,  where  the  claimant 
is  a  verital^le  officer  of  the  Na-V7»^  but  through 
an  incidental  mistake  of  law  in  the  settlement 
of  the  account,  the  officer  is  allowed  some  item 
of  pay  which  in  the  judgment  of  the  courts 
should  have  been  disallowed.  (McKee  v.  U.  S., 
12  Ct  Cls.,  532.) 

In  the  case  of  disbursing  officers  the 
policy  of  the  Government  has  been  to  ac- 
knowledge no  payments  as  made  on  its  behalf 
save  those  which  were  authorized  by  law.  If  a 
disbursing  officer  makes  a  mistake  of  law,  the 
payment  is  disallowed  when  his  accounts  come 
in  for  settlement  and  charged  to  him  as  if  the 
money  were  still  in  his  hands.  But  the  Comp- 
trollers of  the  Treasury  are  not  disbursing  offi- 
cers. Within  the  proper  functions  of  their 
offices,  they  are  above  the  re^view  of  the  highest 
executive  authority  and  their  decisions  are 
subject  only  to  judicial  re"vision.  (McKee  v. 
U.  S.,  12  Ct.  Cls.,  532,  533.) 

Se'ttlements  made  by  the  accounting 
officers  of  the  Government  with  its  cred- 
itors, untainted  by  fraud,  and  free  from  mis- 
take of  fact,  possess  the  element  of  finality. 
(McKee  v.  U.  S.,  12  Ct.  Cls.,  532.) 

A  practical  construction  going  back  to 
the  very  beginning  of  the  Government  is 
overwhelming,  and  can  not  be  overtm-ned  with 
safety  by  anything  short  of  statutory  amend- 
ment. From  the  first  day  the  Treasury  did 
business  until  this  case  was  brought  (1876),  it 
is  safe  to  say  that  the  Government  has  never 
gone  into  aiiy  court  as  plaintiff  and  sued  the 
party  to  whom  money  was  paid  in  mistake  of 
law.    The  courts  have  been  open  to  the  Gov- 


250 


Treasury  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  236. 


ernment  ever  since  courts  were  established  and 
it  has  never  been  supposed  that  such  an 
action  could  be  maintained.  If  the  Govern- 
ment has  such  power,  all  the  settlements  which 
present  and  past  comptrollers  have  ever  made 
will  be  liable  to  be  reopened,  as  no  statute  of 
limitations  runs  against  the  Government. 
Such  a  ruling  can  not  promote  the  public 
welfare  but  would  be  prolific  in  public  mis- 
chiefs.    (McKee  v.  U.  S.,  12  Ct.  Gs.,  533,  534.) 

The  true  rule  to  be  laid  down  is  this: 
AVhere  the  accounting  officers  of  the  Treasiu-y 
are  authorized  to  settle  an  account  or  claim 
against  the  GoA-ernment,  a  mistake  of  law 
committed  incidentally  in  the  adjustment  will 
not,  after  payment  of  "the  balance  found  to  be 
due,  affect  the  finality  of  the  settlement  or 
entitle  the  Government  to  recover  back  the 
money  paid  in  mistake  of  law  ex  aequo  et  bono. 
(McKee  v.  U.  S.,  12  Ct.  Cls.,  534.)  Reversed  on 
other  grounds  (U.  S.  v.  McKee,  97  U.  S.,  233). 

The  question  to  be  determined  in  these 
cases,  when  public  money  is  paid  away  by 
public  officers  with  full  knowledge  of  the  facts 
but  in  mistake  of  law  upon  an  honest  inter- 
pretation and  decision,  is  how  far  those  officers 
have  been  intrusted  by  the  Government  with 
the  authority  to  decide,  because  if  they  have 
no  such  authority,  the  Government  would 
under  no  circumstances  be  bound  by  their 
decisions.  (McKee  v.^  U.  S.,  12  Ct.  Cls.,  552; 
dissenting  opinion,  Richardson,  J.,  concurred 
in  by  Drake,  Ch.  J.) 

The  accounting  officers  stand  in  differ- 
ent relations  to  the  Government  from  dis- 
bursing officers  who  have  only  ministerial 
duties  to  perform;  they  must  of  necessity  de- 
cide questions  of  law  and  fact  which  arise  in 
the  settlement  of  accounts.  To  some  extent 
the  Comptrollers  are  quasi  judicial  officers. 
(McKee  v.  U.  S.,  12  Ct.  Cls.,  553,  554,  opinion 
Richardson,  J.) 

Public  policy  requires  that  the  Govern- 
ment should  not  be  bound  by  the  mistakes  of 
its  officers;  it  also  requires  that  the  settlements 
of  the  accounting  officers,  within  the  exact 
scope  of  their  authority,  when  followed  by  pay- 
ment and  acquiesced  in  by  the  claimants,  should 
be  held  final  and  conclusive  on  the  Govern- 
ment unless  impeached  by  fraud,  or  mistake 
of  fact,  as  in  like  cases  between  individuals. 
Such  settlements  involve  vast  accounts  of  col- 
lectors and  disbursing  officers  under  heavy 
bonds;  the  complicated  accounts  of  persons 
furnishing  supplies  to  the  Army,  Navj',  and 
other  branches  of  the  Government;  the  ac- 
counts of  individuals  dealing  in  thousands  of 
ways  with  the  constituted  authorities,  as  well 
as  accoimts  for  the  salaries  of  public  officers 
to  whom  it  is  often  of  great  importance  to 
know  exactly  how  much  they  can  depend 
upon  receiving.  (McKee  v.  U.  S.,  12  Ct.  Cls., 
557,  opinion  Richardson,  J.) 

If  nothing  could  be  regarded  as  settled 
against  the  Government  in  the  adjustment 
of  accounts  except  what  is  determined  by  the 
final  judgment  of  the  courts,  it  would  follow 
that  whenever  a  new  construction  is  placed  on 
a  statute  different  from  that  which  the  same 
or  a  former  comptroller  adopted  in  the  settle- 
ment of  earlier  accounts,  although  there  were 


no  frauds,  mistakes  or  concealments  of  facts 
and  the  parties  had  dealt  with  the  Govern- 
ment on  the  basis  of  the  former  rulings,  and 
had  long  acquiesced  in  the  settlement,  the 
accounts  might  nevertheless  be  reopened  and 
the  parties  brought  into  court  upon  a  claim 
for  money  paid  them  in  mistake  of  law.  And 
as  no  statute  of  limitations  bars  actions  brought 
by  the  United  States,  any  account  settled  since 
the  first  organization  of  the  Government  might 
be  so  reopened.  (McKee  v.  U.  S.,  12  Ct.  Cls., 
559,  opinion  Richardson,  J.) 

If  claimant  does  not  acquiesce  in  the 
settlement  but  brings  an  action  in  the  Court 
of  Claims  to  recover  an  additional  amount,  he 
can  not,  in  law  or  justice,  well  complain  if  the 
United  States  on  their  part  no  longer  acquiesce 
in  the  payment,  and,  in  defending  themselves, 
have  the  account  opened  throughout,  stated 
anew,  and  a  balance  found  against  him,  when 
it  appears  that  the  officers  of  the  department 
exceeded  their  powers  in  exercising  jurisdic- 
tion over  the  claim  and  mistook  the  law  appli- 
cable thereto,  and  the  money  paid  was  not 
legally  due  to  the  claimant  and  could  not 
have  been  recovered  by  an  action  in  the  Court 
of  Claims  or  otherwise,  and  can  not  in  con- 
science be  retained  by  him.  Had  claimant 
himself  not  disturbed  the  settlement  by  bring- 
ing suit,  the  United  States  would,  no  doubt, 
have  abided  by  the  action  of  their  officers  as 
they  have  done  before  in  hundreds  of  similar 
cases  where  executive  officers  have  acted  upon 
a  mistaken  interpretation  of  statutes,  honestly 
and  fairly  arrived  at.  And  because  the  United 
States  do  not  in  their  ordinary  business  dis- 
turb settlements  in  which  the  claimants  ac- 
quiesce, it  does  not  follow  that  they  have  no 
right  to  recover  back  pajmaents  illegally  made 
on  those  which  the  claimants  themselves  re- 
open by  actions  bringing  the  Government  into 
court.  (McKee  v.  U.  S.,  12  Ct.  Cls.,  560,  561, 
564,  opinion  Richardson,  J.;  Baxter  v.  U.  S., 
32  Ct.  Cls.,  75,  80.) 

The  Government  can  no  more  recover 
back  money  paid  under  a  mistake  of  law 
than  an  individual,  in  a  case  where  a  settle- 
ment made  by  the  parties  in  good  faith,  under  a 
mistaken  construction  of  the  statute,  is  sought 
to  be  reopened  by  the  United  States  without  the 
consent  of  the  other  party  for  the  purpose  of  re- 
covering back  money  paid  under  it  for  services 
actually  rendered  at  an  honest  valuation.  [In 
this  case  it  was  decided  that  settlements  made 
with  a  8uper\'isor  of  internal  revenue,  crediting 
him  with  clerk  hire  paid  to  a  person  who  wag 
at  the  same  time  a  ganger,  and  who  could  not, 
therefore,  legally  receive  additional  compensa- 
tion as  clerk,  were  conclusive  on  the  judicial 
department  of  the  Government ;  that  there  was 
nothing  contrary  to  good  morals  or  conscience 
in  the  payment  or  receipt  of  the  money;  and 
that  in  allowing  the  payments  the  Treasury 
officers  acted  strictly  within  the  scope  of  offi- 
cial authority  and  discretion.]  (Hedrick'a 
case,  16  Ct.  Cls.,  88,  distinguishing  McElrath's 
case.) 

"No  money  shall  be  paid  to  any  person 
for  his  compensation  who  is  in  arrears 
to  the  United  States,  until  he  has  accounted  for 
and  paid  into  the  Treasury  all  sums  for  which 


54641°— 22 17 


251 


Sec.  236. 


Pt.  2.  REVISED  STATUTES. 


Treasury  Department. 


he  is  liable  *  *  *"  (Sec.  1766,  R.  S.)  This 
section  ajiplies  only  to  cases  in  which  the  party 
is  liable  to  the  United  States.  But  the  parties 
are  not  liable  to  the  United  States  for  moneys 
paid  and  received  under  the  circumstances 
shown  in  this  case  (payments  made  in  good 
faith,  by  mistake  of  law,  for  services  actually 
rendered).  (Hedrick's  case,  16  Ct.  Cls.,  104.) 
(See  "VI.  Set-Off"  above.) 

Where  payments  sought  to  be  recovered 
back  were  made  in  good  faith,  with  no  im- 
pro])er  ])urpose  on  either  side,  witli  full  knowl- 
edge of  all  the  facts  but  under  a  mistaken  con- 
struction of  the  law,  it  is  quite  clear  that,  if 
the  controversy  were  between  private  parties, 
the  money  under  such  circumstances  could  not 
be  recovered  back.  The  fact  that  the  transac- 
tions took  place  with  an  agent  of  the  Govern- 
ment does  not  change  the  rule.  (Arthur  v. 
U.  S.,  16  Ct.  Cls.,  433,  citing  and  following  U.  S. 
V.  Freeman,  3  How.,  564.) 

Salary  paid  by  mistake  of  law  can  not  be 
recovered  back  by  the  Government,  even 
though  the  recipient  was  not,  in  law,  a  public 
officer;  where  both  parties  proceeded  in  good 
faith,  and  the  claimant  did  occupy  the  position, 
in  fact,  of  an  officer  on  the  retired  list  of  the 
Army,  and  as  such  was  subject  to  the  disquali- 
fications of  law,  and  the  performance  of  such 
duties  as  by  law  are  incident  to  that  relation. 
This  case  differs  from  McElrath's  case  in  the 
essential  particular  that  the  claimant  has  made 
no  effort  to  disturb  the  settlement;  and  also  in 
that  McElrath  rendered  no  service  and  occupied 
no  relation  to  the  Government  either  in  law  or 
in  fact.     (Miller  v.  U.  S.,  19  Ct.  Cls.,  353.) 

Where  money  is  paid  in  mutual  mistake  of 
law,  and  the  court  can  not  restore  the  parties  to 
their  original  position  before  the  happening  of 
their  mutual  error,  it  will  leave  them  in  statu 
quo.  (Palen  v.  U.  S.,  19  Ct.  Cls.,  389;  Bennett 
V.  U.  S.,  19  Ct.  Cls.,  388.) 

The  doctrine  does  not  have  such  general 
appUcation  to  public  ofl&cers  as  to  indi- 
\'iduals,  that  money  paid  can  be  recovered 
back  when  paid  in  mistake  of  fact  and  not  of 
law.  Public  officers  use  the  funds  of  the 
people,  while  individuals  deal  with  their  own 
money,  where  nobody  but  themselves  suffer 
for  their  ignorance,  carelessness,  or  indiscretion. 
In  the  former  case,  the  elements  of  agency,  and 
the  authority  and  duty  of  officers  and  their 
obligations  to  the  public,  of  which  all  persona 
dealing  with  them  are  bound  to  take  notice, 
are  always  involved.  (Barnes  v.  District  of 
Columbia,  22  Ct.  Cls.,  336,  394;  approved  Wis. 
Cent.  R.  R.  Co.  v.  U.  S.,  164  U.  S.,  212.) 

A  manifest  wrong  and  injury  will  be 
caused  by  a  subsequent  judicial  interpretation 
which  leaves  the  party  without  redress  in  a 
case  where  an  executive  department  chai'ged 
with  the  administration  of  a  statute  has  pre- 
viously given  to  it  an  interpretation  upon  the 
faith  of  which  the  party  acts.  For  if  the  con- 
struction afterwards  adopted  had  been  given  the 
statute  by  the  executive  officers  at  the  proper 
time,  the  claimant  might  have  declined  to 
enter  into  the  contract  and  to  jjerform  the  ser- 
vice. (Wis.  Cent.  R.  R.  Co.  r'.  U.  S.,  27  Ct. 
Cls.,  468;  explaining  and  distinguishing  U.  S. 
V.  Ala.  R.  R.  Co.,  142  U.  S.,  621,  noted  below.) 


A  different  question  is  presented  in  a 
case  where  the  claimant  had  no  option 
but  to  render  the  service  which  formed  the 
basis  of  the  claim;  as  where  a  land-grant  rail- 
road had  to  perform  the  required  service  for  the 
Government  and  to  perform  it  under  the  terms 
prescribed  by  Congress.  If  the  executive  de- 
partment in  that  case  had  originally  given  the 
statute  the  same  construction  aftenvards  given 
it  by  the  court,  the  claimant  could  not  have 
declined  to  perform.  The  only  effect  which 
the  original  interpretation  of  the  department 
caused  in  this  case  was  that  the  claimant,  by 
reason  of  overpayment,  had  in  its  possession 
money  which  it  was  not  entitled  to  have,  and 
that  it  had  the  use  of  such  money  without  the 
payment  of  interest.  Therefore  no  injury  was 
done  the  claimant  in  such  a  sense  as  to  prevent 
the  proper  construction  now  being  given  the 
law.  (Wis.  Cen.  R.  R.  Co.  v.  U.  S.,  27  Ct.  Cls., 
468.)  (See  decision  of  Supreme  Court  in  this 
case,  noted  below.) 

When  money  is  paid  after  careful  considera- 
tion by  the  proper  officers  of  the  Government, 
upon  settlements  made  by  the  accounting 
officers,  it  can  not  be  recovered  back  because 
paid  in  mistake  of  law.  (Hillborn  v.  U.  S.,  27 
Ct.  Cls.,  547;  28  Ct.  Cls.,  237.) 

"Whatever  doubt  may  have  existed  hereto- 
fore as  to  the  right  of  the  Government  to  main- 
tain a  counterclaim  for  money  paid  by  its 
agents  or  officers  without  authority  of  law  or 
paid  through  a  misconstruction  of  the  law  has 
now  been  removed  by  the  decision  in  the  case 
of  the  W^isconsin  Central  Railroad  Company  v. 
United  States,  164  U.  S.,  190,  210  (affirming 
the  decision  of  this  court)."  (Baxter  v.  U.  S., 
32  Ct.  Cls.,  75,  81;  Wis.  Cent.  R.  Co.  v.  U.  S., 
noted  below.) 

"It  has  been  held  in  many  cases  that  pay- 
ments made  in  good  faith  through  a  mistaken 
interpretation  of  the  law  may  not  be  recovered . ' ' 
(Downes  v.  U.  S.,  52  Ct.  Cls.,  327.) 

3.    DECISIONS    OP   SUPREME    COUET. 

The  settlements  of  the  accounting  oflS.- 
cers  have  always  been  considered  as  con- 
clusive upon  the  Government,  but  not  as 
against  the  individual.  The  law  expressly 
provides  that  rejected  items  may  be  allowed 
by  the  court.  Accounts  amounting  to  many 
millions  annually  come  under  the  action  of 
these  officers.  It  is  therefore  of  great  impor- 
tance to  the  fjublic  and  to  individuals  that  the 
rules  by  which  they  exercise  their  powers 
should  be  fixed  and  known.  (U.  S.  v.  Jones,  8 
Pet.,  375.) 

What  has  been  done  under  an  erroneous 
construction  of  the  law  is  binding  upon 
the  Government  and  can  not  be  recalled  to 
the  pecuniary  disadvantage  of  any  officer  who 
may  have  received  pay  and  emoluments  under 
such  erroneotis  practice.  (U.  S.  v.  Freeman,  3 
How.,  564;  followed  Arthur  i).  U.  S.,  16  Ct.  Cls., 
433.) 

If  a  credit  has  been  given  or  an  allow- 
ance made  by  the  head  of  a  department,  and 
it  is  alleged  to  be  an  illegal  allowance,  the  judi- 
cial tribunals  of  the  country  must  be  resorted 
to  to  construe  the  law  under  which  the  allow- 


252 


Treasury  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  236. 


ance  was  made,  and  to  settle  the  rights  between 
the  United  States  and  the  party  to  whom  the 
credit  was  given.  (U.  S.  v.  Bank  of  the  Me- 
tropolis, 15  Pet.,  377.)  ["The  mistake  referred 
to  in  this  citation  was  assumed  and  expressed 
to  be  a  mistake  of  law,  for  the  resort  to  the  Judi- 
cial tribunals  was  to  be  had  'to  constnie  the 
law  under  which  the  allowance  was  made.' 
And  we  think  that  the  citation  is  an  aiithorita- 
tive  declaration  of  the  Supreme  Court  that 
where  a  payment  ia  made  to  an  officer  by  a 
mistake  of  law  in  a  department,  a  suit  may  be 
maintained  by  the  United  States  for  the  recov- 
ery of  the  money  paid."  (McElrath  v.  U.  S., 
12  Ct.  Cls.,217.)  "The  view  thus  indicated 
that  executive  decisions  in  cases  like  the  pres- 
ent are  not  binding  on  the  coiirts,  has  been  re- 
peatedly affirmed  and  steadily  adhered  to." 
(Wis.  Cent.  R.  R.  Co.  v.  U.  S.,  164  U.  S.,  207.)] 

Had  the  appellant  rested  upon  the  set- 
tlement of  his  account  by  the  proper  officers 
of  the  Government,  his  right  to  invoke  the  gen- 
eral nile  (that  payments  made  under  a  mistake 
of  law  can  not  be  recovered  back)  would  have 
been  entitled  to  more  consideration  than  it  can 
now  receive.  If  the  general  rule  applicable  in 
such  cases  would  preclude  the  Government 
from  reclaiming  money  which  had  been  paid 
under  a  mistake  of  law  simply,  that  rule  is  inap- 
plicable under  the  cu'cumstances  disclosed  in 
the  present  case.  Upon  recei\'ing  the  amount 
awarded  to  him  by  the  representatives  of  the 
Government,  he  distinctly  announced  his  pur- 
pose not  to  abide  by  their  settlement  of  his  ac- 
counts; but  in  disregard  thereof  to  demand  an 
additional  sum  upon  the  basis  of  full  pay  and 
allowances.  *  *  *  This  suit  itself  invites 
the  court  to  go  behind  that  settlement  to  reex- 
amine all  the  qiiestions  arising  out  of  appellant's 
claim  for  full  pay  and  allowances  and  to  con-ect 
the  error  which  he  insists  was  committed  to  hia 
prejudice  by  the  accounting  officers  of  the  Gov- 
ernment. The  Government,  declining  to  plead 
the  former  settlement  in  bar  of  suit,  meets  him 
upon  hia  own  chosen  ground,  and  insisting  that 
its  officers,  misapprehending  the  law,  paid  to 
him  out  of  the  Treasury  money  to  which  he  was 
not  legally  entitled,  asks  as  we  think  it  may 
rightfully  do  judgment  for  the  amount  thus 
improperly  paid  to  him.  (McElrath  v.  U.  S., 
102  U.  S.,  441;  distinguished  Hedrick's  case,  16 
Ct.  Cls.,  88,  Miller's  case,  19  Ct.  Cls.,  353,  Walker 
V.  U.  S.,  139  Fed.  Rep.,  409,  418;  affirmed  148 
Fed.  Rep.,  1022;  followed  V.  S.  v.  Dempsey, 
104  Fed.  Rep.,  197.) 

The  Government  is  not  bound  by  the 
action  of  the  Navy  Department  in  deliver- 
ing old  materials  to  a  contractor  at  an  agreed 
price,  considerably  less  than  their  real  value. 
Such  action  was  without  waiTant  of  law,  and  in 
a  suit  brought  by  the  contractor  for  payment 
on  hia  contract,  it  was  held  that,  the  material 
having  been  disposed  of,  he  should  be  required 
to  account  for  it  at  its  true  value.  The  fact  that 
the  account  of  appellant  was  settled  by  the 
officers  of  the  Na\'y  Department  by  charging 
him  with  the  value  of  the  old  material  at  the 
agreed  price  is  no  bar  to  the  recovery  of  its  real 
value  by  the  Government.  The  whole  trans- 
action was  illegal  and  the  appellant  is  charge- 
able with  knowledge  of  the  fact.  (Steele  v.  U.  S. 
113  U.  S.,  128.) 


When  the  remedy  of  the  party  against 
the  Government  is  barred  by  the  statute  of 
limitations,  and  the  remedies  of  the  United 
States  on  the  other  side  are  intact,  owing  to  its 
not  being  subject  to  any  statute  of  limitation, 
settled  accounts,  where  the  United  States  has 
paid  the  balance  found  due,  can  not  be  opened 
and  set  aside  on  account  of  technical  irregulari- 
ties in  the  allowance  of  expenses,  or  merely  be- 
cause some  of  the  prescribed  steps  in  the  ac- 
counting, which  it  was  the  duty  of  a  head  of  a 
department  to  see  had  been  taken,  have  in  fact 
been  omitted.  (U.  S.  v.  Johnston,  124  U.  S., 
236,  254.)  [This  observation  of  the  Supreme 
Court  illustrates  the  danger  of  the  doctrine 
which  the  GoA'ernment  pushes  in  a  case  where 
it  attempts  to  recover  back  overpayments, 
years  after  final  settlement,  on  the  ground  that 
such  overpayments  were  made  by  mistake  of 
law.     (Walker-!).  U.  S.,  139 Fed.  Rep.,  409, 417.)] 

When  an  oflB.cer  brings  suit  in  the  Court 
of  Claims  to  recover  a  balance  claimed  to  be 
due  him  on  his  pay  account,  the  Government 
by  counterclaim  can  recover  overpayments 
made  to  him  on  that  account.  \\Tiether  the 
Government  can  in  any  case  be  precluded  from 
reclaiming  money  wliicli  has  been  paid  by  its 
disbm'sing  and  accounting  officers  inider  a  mis- 
take of  law  is  a  question  which  it  is  not  now 
necessary  to  decide  any  more  than  it  was  in 
McElrath  v.  U.  S.  (above).  This  is  a  case 
where  the  disbursing  officer,  supposing  that  a 
retired  officer  of  the  Navy  was  entitled  to  more 
than  it  tiu-ns  out  the  law  allowed,  overpaid 
him.  Certainly  under  such  circumstances  the 
mistake  may  be  corrected.  The  action  was 
brought  to  recover  a  balance  claimed  by  the 
officer  to  be  due  him  on  pay  account  from  the 
date  of  his  retirement.  In  reality  the  account 
had  never  been  closed  and  was  always  open  to 
adjustment.  His  pay  was  fixed  by  law,  and 
the  disbursing  officers  of  the  department  had  no 
authority  to  allow  him  any  more.  If  they  did, 
it  was  in  violation  of  law,  and  he  has  no  right  to 
keep  what  he  has  thus  obtained.  (U.  S.  v. 
Biu-chard.  125  U.  S.,  176.) 

Where  money  has  been  paid  under  a 
mistake  of  law  it  can  not  be  recovered 
back.  It  is  denied  that  this  rule  is  applicable 
to  the  United  States  upon  the  ground  that  the 
Government  is  not  bound  by  the  mistakes  of  its 
officers,  whether  of  law  or  of  fact;  but  inasmuch 
as  the  claimant's  name  was  placed  in  the  retired 
list  of  the  Army  by  the  Secretary  of  War  in  ap- 
parent compliance  with  the  pro\'ision8  of  law, 
and  as  he  acted  as  an  officer  de  facto  (in  fact), 
we  are  not  inclined  to  hold  that  he  has  received 
money  as  salary  which,  ex  aequo  et  bono,  he 
ought  to  retiu-n.  (Badeau  v.  U.  S.,  130  U.  S., 
439.) 

Where  payment  was  made  by  the  United 
States  in  consequence  of  a  misrepresentation 
by  the  defendant  to  the  Secretary  of  the  Treas- 
ury which  created  a  misapprehension  on  his 
part  of  the  nature  of  the  defendant's  services, 
the  amount  so  paid  ought  in  equity  and  good 
conscience  to  be  returned  to  the  United  States. 
(Sanborn  v.  U.  S.,  135  U.  S.,  271.) 

It  is  a  settled  doctrine  of  this  court  that 
in  case  of  ambiguity  the  judicial  department 
will  lean  in  favor  of  a  construction  given  to  a 
statute  by  the  department  charged  with  its 


253 


Sec.  236. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


execution,  and  if  such  construction  be  acted 
upon  for  a  number  of  years  will  look  with  dis- 
favor upon  any  sudden  change  whereby  parties 
who  have  contracted  with  the  Government  upon 
the  faith  of  such  construction  may  be  preju- 
diced. It  is  especially  objectionable  that  a 
construction  of  a  statute  favorable  to  the  indi- 
vidual citizen  should  be  changed  in  such  man- 
ner as  to  become  retroactive  and  to  require  from 
him  the  repayment  of  moneys  to  which  he  had 
supposed  liimself  entitled  and  upon  the  expec- 
tation of  which  he  had  made  his  contracts  with 
the  Government.  (U.  S.  v.  Ala.  R.  R.  Co.,  142 
U.  S.,621.) 

Where  a  naval  officer  sues  for  a  defi- 
ciency claimed  to  exist  in  hie  previous  grade, 
and  his  contention  is  sustained,  there  may  be 
deducted  from  the  sum  due  him  the  amount  of 
overpajmients  made  in  his  present  grade  upon  a 
difference  of  opinion  as  to  the  law.  (U.  S.  v. 
Stahl,  151  U.  S.,366.) 

Where  no  peculiar  circumstances  ap- 
pear to  make  such  recovery  inequitable 
and  unjust,  money  paid  in  violation  of  law 
upon  balances  certified  by  the  accounting  offi- 
cers generally  may  be  recovered  back  by  coun- 
terclaim or  otherwise;  the  items  of  the  several 
statements  upon  which  the  auditor  certifies 
balances  due  for  carrying  the  mails,  ordinarily 
and  in  the  absence  of  special  circumstances, 
may  be  regarded  as  running  accounts,  at  least 
while  the  parties  continue  the  same  dealings 
between  themselves.  This  statement  was 
made  by  the  Court  of  Claims  in  a  case  in  which 
the  mistake  was  treated  as  one  of  fact,  but  the 
governing  principle  is  the  same  in  the  present 
case  which  is  one  of  misconstruction  of  law. 
(Wisconsin  Cent.  R.  R.  Co.  v.  U.  S.,  164  U.  S., 
211,  quoting  Duval  v.  U.  S.,  25  Ct.  Cls.,  46.) 

As  a  general  mle  and  on  grounds  of 
public  policy  the  Goverimaent  can  not  be 
bound  by  the  action  of  its  ofticers,  who  must  be 
held  to  the  performance  of  their  duties  within 
the  strict  limits  of  their  legal  authority,  where, 
by  misconstruction  of  the  law  under  which  they 
have  assumed  to  act  unauthorized  payments 
are  made.  The  question  is  not  presented  as 
between  the  Government  and  its  officer,  or  be- 
tween the  officer  and  the  recipient  of  such  pay- 
ments, but  as  between  the  Govenmient  and  the 
recipient,  and  is  then  a  question  whether  the 
latter  can  be  allowed  to  retain  the  fruits  of  ac- 
tions not  authorized  by  law,  resulting  from  an 
erroneous  conclusion  by  the  agent  of  the  Gov- 
ernment as  to  the  legal  effect  of  the  particular 
8tatutc)ry  law  under  or  in  reference  to  which  he 
is  proceeding.  (Wisconsin  Cent.  R.  R.  Co.  v. 
U.  S.,  164  U.  S.  210;  followed  U.  S.  v.  Demp- 
sey,  104  Fed.  Rep.,  197.)  (In  the  decision  of 
the  Coiu-t  of  Claims  in  this  case,  noted  above,  it 
was  pointed  out  that  the  claimant  was  not 
equitably  entitled  to  retain  the  overpayments; 
and  the  Supreme  Com-t's  conclusion  was,  "that 
there  is  nothing  on  this  record  to  take  the  case 
out  of  the  scope  of  the  principle  that  parties  re- 
ceiving moneys  illegally  paid  by  a  public  offi- 
cer are  liable,  ex  aequo  et  bono,  to  refund 
them.") 

Where  money  has  been  paid  without 
authority  of  law,  and  the  Government  has 
money  of  the  same  claimant  in  its  hands,  it  is 


not  compelled  to  pay  such  money  over  and  sue 
to  recover  the  illegal  pajmients;  but  may  hold 
it  subject  to  the  decision  of  the  court  when  the 
claimant  sues.  And  in  that  way  multiplicity 
of  suits  and  circuity  of  action  are  avoided. 
(Wisconsin  Cent.  R.  R.  Co.  v.  U.  S.,  164  U.  S., 
211.)    (See  "VI.  Set-Off"  above.) 

4.    MISCELLANEOUS    DECISIONS. 

Where  the  accounting  officers  have 
passed  the  account,  and  payment  is  made, 
it  seems  clear  that  the  officer  whose  accounts 
are  thus  approved  and  paid  can  not  afterwards 
be  called  upon  for  repayment.  The  Govern- 
ment's claim  in  such  case  could  have  no  possi- 
ble standing,  except  upon  the  ground  of  fraud 
or  palpable  mistake.  (Tuthill  v.  U.  S.,  38 
Feci.  Rep.,  538.)  [This  decision  seems  to 
approve  the  same  doctrine  which  was  applied 
by  the  Court  of  Claims  in  Hedrick's  case,  above 
noted.     (19  Op.  Atty.  Gen.,  441.)  ] 

The  United  States  may  recover  an 
overpayment  made  by  mistake  of  law, 
with  interest  from  the  date  when  the  officer's 
accounts  were  settled  by  the  Treasury  Depart- 
ment. (U.  S.  V.  Dempsey,  104  Fed.  Rep., 
197.)  [In  this  case  an  Army  officer  was,  by 
mistake  of  law,  paid  commutation  of  quarters 
for  a  period  during  which  he  occupied  a  build- 
ing provided  by  the  United  States  for  his  occu- 
pancy and  use,  and  which  was  suitable  for  an 
officer  of  his  rank.  The  United  States  brought 
suit  to  recover  the  overpayment.  The  court 
said  that  the  paymaster  who  paid  the  defend- 
ant the  above  sum  of  money  could  go  no  further 
in  this  matter  than  he  was  authorized  by  law. 
The  law  limited  his  powers.  The  Government 
was  not  bound  when  he  exceeded  the  authority 
given  him  by  the  Federal  statutes.  The  Gov- 
ernment having  provided  the  defendant  with 
suitable  quarters  free  of  charge,  the  paymaster 
was  not  authorized  to  pay  him  this  money. 
Thatundersuch  circumstances,  the  followingde- 
cisions  maintain  the  rule  that  the  Government 
may  sue  for  and  recover  back  this  sum  of  money 
so  paid — citing  decisions  of  Supreme  Court  in 
McElrath  v.  U.  S.  and  Wisconsin  Cent.  R.  R. 
Co.  V.  U.  S.,  noted  above.]  Compare  U.  S.  v. 
Sanborn  (135  U.  S.,  271). 

Whatever  may  be  the  general  rule,  the 
United  States  stands  upon  no  better 
footing  than  woiHd  a  private  citizen  in  a 
case  where  money  has  been  paid  by  its  officers 
under  mistake  of  law,  and  the  circumstances 
are  such  that  the  Government  is  not  entitled, 
ex  aequo  et  bono,  to  recover  such  money 
from  the  recipient.  (Walker  v.  U.  S.,  139 
Fed.  Rep.,  409;  affirmed  148  Fed.  Rep.,  1022.) 
[In  this  case  the  money  was  paid  to  a  United 
States  marshal  as  fees,  and  m  the  course  of 
his  duty  he  "paid  three-fourths  of  the  amount 
of  these  fees  to  his  deputies,  from  time  to 
time  as  he  made  settlements,  and  retained 
the  balance,  as  was  his  duty  to  do,  under 
the  law  as  then  construed  by  every  depart- 
ment of  the  Government  which  had  acted 
or  spoken  on  the  subject."  It  was  held  that 
the  Government  could  not  recover  either  the 
amount  paid  to  his  deputies  or  the  portion 
retained  by  the  marshal,  after  years  had  elapsed 


254 


Treasury  Department. 


Ft.  2.  REVISED  STATUTES. 


Sec.  236. 


and  the  marshal  had  gone  out  of  office,  and  was 
without  remedy  to  recoup  his  losses,  and  dur- 
ing which  time  no  objection  had  been  made  to 
such  payments  by  the  executive  departments 
or  by  Congress,  which  continued  to  appropriate 
money  therefor,  even  though  the  allowances 
may  have  been  made  under  an  erroneous  con- 
struction of  the  law.] 

Where,  by  mistake  of  law  for  which  he  was 
not  responsible,  an  officer  of  the  Navy  was  paid 
increased  compensation  as  an  appointee  from 
civil  life,  when  he  was  not,  under  the  law  as 
construed  by  the  Supreme  Court,  entitled  to 
such  additional  compensation,  held  that  the 
Government  could  not  recover  the  amount  of 
the  overpayment  for  the  period  from  the  date 
of  his  appointment  until  the  time  when  his 
rating  was  corrected.  (U.  S.  ?;.  U.  S.  Fidelity 
and  Guaranty  Co.,  244  Fed.  Rep.,  310.) 

The  underlying  principle  of  the  deci- 
sions is  that  when  the  sovereign  comes  into 
court  to  assert  a  pecuniary  demand  against  the 
citizen,  the  court  has  authority  and  is  under 
the  duty  to  withhold  relief  to  the  sovereign 
except  upon  terms  which  do  justice  to  the 
citizen  or  subject  as  determined  by  the  juris- 
prudence of  the  forum  in  like  subject  matter 
between  man  and  man.  (Walker  v.  U.  S.,  139 
Fed.  Rep.,  409,  413.) 

It  is  not  material  whether  the  pay- 
ments were  in  fact  authorized  by  the 
existing  statutes  at  the  time  they  were  made, 
if  it  appears  that  the  transactions  have  been 
executed  and  closed,  and  Congress,  the  legis- 
lative power  which  could  treat  them  as  legal 
at  that  time  and  thereby  make  them  legal,  did 
treat  them  as  legal  at  that  time.  (Walker  v. 
U.  S.,  139  Fed.  Rep.,  409,  416.) 

It  would  seem  the  burden  is  on  the 
Government  to  show  that  the  accounts  could 
be  reopened  without  doing  injustice  to  the 
citizen  in  a  case  where  money  has  been  paid  to 
him  as  a  public  officer  by  mistake  of  law,  and 
the  settlements  closed  and  executed  before  he 
went  out  of  office,  and  he  accepted  them  aa 
finalities.  (Walker  v.  U.  S.,  139  Fed.  Rep., 
409,  417.) 

When  an  officer  accepts  the  final  set- 
tlements made  with  the  auditing  department 
in  full  of  his  accounts,  and  does  not  commence 
suit  against  the  Government  to  avoid  its  ruling 
as  to  any  matters  involved  in  those  settled 
accounts,  his  conduct  does  not  bring  him  with- 
in the  principle  of  McElrath  v.  U.  S.  (noted 
above).  His  attitude  does  not,  as  did  that  of 
the  plaintiff  in  McELrath's  case,  "invite  the 
court  to  go  behind  the  settlement. "  (Walker 
V.  U.  S.,  139  Fed.  Rep.,  409,  418.) 

In  general,  the  holding  of  the  courts  is 
that  the  Government  is  not  bound  by  the  acts 
of  its  officers  or  agents,  but  exceptions  are  made 
by  the  courts  in  cases  where  the  circumstances 
are  such  that  the  refimdment  under  compulsion 
of  moneys  so  paid  would  be  a  violation  of  equity 
and  good  conscience.  (Comp.  Dec,  July  17, 
1914,  161  S.  and  A.  Memo.,  3303;  Comp.  Dec, 
Dec.  1, 1914,  165  S.  and  A.  Memo.,  3409;  Comp. 
Dec,  Mar.  26,  1915,  file  26254-1748.) 

Men  who  have  furnished  all  the  evidence  of 
citizenship  required  by  the  administrative  offi- 


cers of  the  Navy,  and  who  have  accordingly 
been  allowed  the  additional  pay  provided  tor 
citizens  of  the  United  States,  have  not  received 
money  "which  inequity  and  good  conscience 
they  ought  to  be  required  to  return  to  the  United 
States."  There  is  no  principle  of  law  which 
in  such  case  requires  the  accounting  officers  to 
reopen,  upon  their  own  motion,  accounts  which 
have  been  settled  and  closed,  although  such 

Sayments  would  not  be  conclusive  upon  the 
overnment  if  the  men  should  seek,  through 
the  accounting  officers  or  the  courts,  to  reopen 
their  pay  accounts  in  order  to  secure  something 
claimed  to  be  due  them  under  a  new  ruling  or 
decision.  (Comp.  Dec,  July  28,  1913,  149 
S.  and  A.  Memo.,  2715.  Where,  contrary  to  these 
principles,  the  Comptroller  holds  an  officer  in- 
debted for  overpayments  made  by  mistake  of 
law,  the  Secretary  of  the  Navy  will  not  take 
any  action  tending  to  the  collection  of  the 
amount  from  such  officer,  but  should  the  Comp- 
troller attempt  to  have  suit  brought  against  the 
officer  the  Secretary  will  present  all  facts  in  the 
case  to  the  Department  of  Justice.  (File  26254- 
2160:4,  Aug.  7, 1917;  see  also  26254-2160:2,  June 
7,  1917.) 

Where  pa3rments  have  been  made  under 
a  long-continued  practice  of  the  adminis- 
trative department,  sanctioned  by  the  account- 
ing officers  of  the  Treasury,  payments  so  made 
by  disbursing  officers  prior  to  the  promulgation 
of  a  Comptroller's  decision  reversing  the  former 
construction  of  the  law,  if  otherwise  correct, 
will  be  passed  to  their  official  credit.  (20 
Comp.  Dec.  182;  72  S.  and  A.  Memo.,  225;  see 
also  Comp.  Dig.,  295,296.) 

Errors  of  judgment  in  the  application  of 
legal  rules  to  the  facts  which  were  before  the 
accounting  officers  can  not  be  corrected  by  any 
subsequent  action  of  the  accounting  officers 
themselves.  (Dec  of  Second  Comptroller, 
Sept.  9, 1885,  quoted  in  34  Ct.  Cls.,  490, 493,  Bal- 
timore &  Ohio  R.  Co.  V.  U.  S.)  [In  this  case  the 
accounts  had  been  settled  by  a  former  admin- 
istration.] 

(D)  Subsequent  administration. 

Can  not  generally  reopen  accounts  set- 
tled by  predecessors. — After  a  final  settle- 
ment of  a  claimant's  accounts  by  the  Comp- 
troller, the  same  can  not  be  reopened  by  his 
successor  in  office,  except  to  correct  "mistakes 
in  matters  of  fact  arising  upon  errors  in  calcula- 
tion, and  in  cases  of  rejected  claims  in  which 
material  testimony  is  afterwards  discovered  and 
produced."  (Balto.  &  Ohio  R.  R.  Co.  v.  U.  S., 
34  Ct.  Cls.,  504;  H.^.v.  Bank  of  the  Metropolis, 
15  Pet.,  377,  401;  Rollins  and  Presbrey  i;.  U.  S., 
23  Ct.  Cls.,  123.)  This  has  become  the  settled 
rule  of  administrative  law.  (Balto.  &  Ohio 
R.  R.  Co.  V.  U.  S.,  34  Ct.  Cls.,  504,  citing  Jack- 
son V.  U.  S.,  19  Ct.  Cls.,  605,  509.) 

Except  in  cases  of  fraud,  mistakes  in  calcula- 
tion, or  the  filing  of  material  new  evidence,  the 
disallowance  of  a  claim  by  the  Comptroller  is 
final  and  conclusive  and  the  case  is  res  judicata 
(a  thing  adjudicated)  in  the  department. 
(Armstrong's  case,  29  Ct.  Cls.,  148,  169.) 


255 


Sec.  236. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


The  allowance  of  a  claim  by  an  auditor  under 
a  special  act  of  Congress,  followed  by  payment, 
can  not  be  set  a«ide  by  his  successor.  Where 
one  atiditor  settles  an  account,  his  successors 
are  bound  by  his  decision.  (5  Op.  Atty.  Gen., 
97.) 

It  has  repeatedly  beoTi  held  by  the  Court  of 
Claims  and  by  the  Supreme  Court  that  the  final 
decision  of  a  matter  by  a  })ublic  officer  is  bind- 
ing upon  his  successtJr,  and  that  the  right  of  an 
incumbent  to  review  a  predecessor's  decision 
extends  only  to  mistakes  of  fact  arising  from 
errors  in  calculation,  and  to  cases  of  rejected 
claims  in  which  material  evidence  is  afterward 
discovered  and  produced.  (Cotton  case,  29  Ct. 
Cls.,  207,  223.) 

The  right  of  a  public  officer  to  review  a  prede- 
cessor's decisions  extends  to  mistakes  in  mat- 
ters of  fact  arising  from  errors  of  calculation, 
and  to  cases  of  rejected  claims  in  which  material 
testimony  is  afterwards  discovered  and  pro- 
duced; but  if  a  credit  has  been  given  or  an  al- 
lowance made  by  the  head  of  a  department,  and 
it  is  alleged  to  be  an  illegal  allowance,  the  judi- 
cial tribimals  of  the  country  must  be  resorted  to 
to  construe  the  law  under  which  the  allowance 
was  made  and  to  settle  the  rights  between  the 
United  States  and  the  party  to  whom  the  credit 
was  given.  It  is  no  longer  a  case  between  the 
correctness  of  one  officer's  judgment  and  that 
of  his  successor.  A  third  party  is  interested, 
and  he  can  not  be  deprived  of  a  payment,  on  a 
credit  so  given,  but  by  the  intervention  of  a 
court  to  pass  upon  his  right.  (U.  S.  v.  Bank  of 
the  Metropolis,  15  Pet.,  401.) 

It  is  well  settled  that  the  Comptroller  has  no 
right  to  review  the  decision  of  his  predecessor 
upon  a  question  of  law,  whether  such  decision 
be  correct  or  erroneous.  This  principle  has  been 
so  long  recognized  and  exercised,  as  evidenced 
by  numerous  rulings  of  the  Comptrollers,  opin- 
ions of  the  Attorneys-General,  and  decisions  of 
the  courts,  that  citations  are  scarcely  necessary. 
(20  Comp.  Dec,  680,  687.  See  also  19  Comp. 
Dec.  110,  and  authorities  there  cited;  compare 
4  Comp.  Dec,  697.) 

By  act  of  March  4,  1907  (34  Stat.,  1356),  relat- 
ing to  the  payment  of  back  pay  and  bounty  in 
certain  cases,  it  was  provided  that  thereafter  in 
all  such  cases, ' '  the  said  accounting  officers  shall, 
in  stating  balances,  follow  the  decisions  of  the 
United  States  Supreme  Court  or  the  Court  of 
Claims  of  the  United  States  after  the  time  for 
appeal  has  expired,  if  no  appeal  be  taken,  with- 
out regard  to  former  settlements  or  adjudica- 
tions by  their  predecessors."  (See  Leigh  v. 
U.  S.   43  Ct.  Cls.,  387.) 

(E)  Same  administration. 

May  reopen  accounts  settled  by  them- 
selves.— "It  has  never  been  doubted  that  any 
public  officer  in  the  departments  may  correct 
his  own  errors,  and  open ,  reconsider,  and  reverse, 
in  whole  or  in  part,  any  case  decided  by  him- 
self." (Rollins  and  Presbrey's  case,  23  Ct.  Cls., 
123.)  [In  this  cise,  the  officer's  action  did  not 
purport  to  be  a  final  settlement,  and  the  case 
was  treated  by  him  as  still  pendiiig.] 


The  accounting  officers  have  a  right  to  reopen 
accounts  which  have  been  settled  by  them- 
selves, to  correct  errors  either  of  law  or  fact, 
but  they  are  not  authorized  to  reopen  accounts 
which  had  been  settled  by  their  predecessors 
except  upon  the  production  of  newly  discovered 
material  evidence,  or  to  correct  mistakes  of 
fact,  or  for  fraud  or  collusion.  (11  Comp.  Dec, 
459;  followed  15  Comp.  Dec,  584,  97  S.  and  A. 
Memo.,  1004.  But  see  above,  "(C)  Mistake  of 
Law.'")  [Previously  it  had  been  decided  by 
the  Comptroller  that  the  accounting  officers  of 
the  Treasury  are  not  authorized  to  reopen  ac- 
counts for  the  purpose  of  correcting  decisions 
upon  questions  of  law  subsequently  held  to  be 
erroneous;  and  that  to  admit  such  a  proposition 
would  bring  endless  confusion  into  the  settle- 
ment of  accounts  and  substitute  the  judgment 
of  one  officer  for  that  of  another  on  doubtful 
questions  of  law  (6  Comp.  Dec,  91);  and 
again,  that  it  is  an  established  rule  that  the 
accounting  officers  are  not  authorized  to  re- 
open accounts  which  have  been  settled,  either 
by  themselves  or  their  predecessors,  for  the 
purpose  of  correcting  decisions  of  law  subse- 
quently held  to  be  erroneous  (8  Comp.  Dec. 
24);  but  that  "the  Government  has  authority 
to  withhold  money  due  to  an  officer  of  the  Navy 
to  whom  an  erroneous  payment  has  been  made, 
notwithstanding  that  the  payment  was  found 
to  be  erroneous  only  upon  a  construction  of  law 
made  after  the  settlement  of  an  account  in 
which  the  payment  was  allowed;  the  burden  is 
upon  claimant  to  bring  suit  therefor  and  have 
the  question  of  right  determined  by  the  courts. 
(8  Comp.  Dec,  24,  citing  Wis.  Cent.  R.  R.  Co.  v. 
U.  S.,164U.  S.,  190,  211.)] 

IX.   Mandamus  Proceedings  to  Compel 
Payments. 

Mandamus  will  lie  against  an  auditor 

in  the  Treasury  Department  to  compel  the  tak- 
ing of  such  steps  by  him  as  may  be  necessary 
to  accomplish  the  payment  to  a  public  officer 
of  the  salary  of  his  office  as  fixed  by  law,  where 
there  is  no  dispute  that  the  amount  of  such 
salary  is  lawfully  due  the  officer,  but  its  pay- 
ment has  been  withheld  in  accordance  with 
decisions  of  the  Comptroller  of  the  Treasury 
and  contrary  to  an  opinion  of  the  Attorney 
General,  on  the  ground,  that  said  officer  was 
indebted  to  the  United  States,  which  alleged 
indebtedness  was  denied  by  the  officer  and  had 
not  been  adjudicated  in  any  court.  (Smith  v. 
Jackson,  241  Fed.  Rep.,  747;  246  U.  S.,  388.) 

The  courts  have  no  power  to  issue  a 
writ  of  mandamus  commanding  the  Secre- 
tary of  the  Treasury  to  withdraw  money  from 
the  Trea.sury  to  pay  the  claim  of  an  individual. 
The  only  acts  to  which  the  power  of  the  courts 
by  mandamus  extends  are  such  as  are  purely 
ministerial — that  is,  which  do  not  require  the 
exercise  of  judgment  or  discretion — but  when- 
ever the  right  of  judgment  or  discretion  is  left 
to  an  officer,  he  can  not  be  controlled  in  its 
exercise  by  the  courts.  (U.  S.  v.  Guthrie,  17 
How.,  284.) 

The  duties  of  the  accounting  officers  are  not 
merely  ministerial.     (20  Comp.  Dec,  741.) 


256 


Treasury  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  237. 


The  suggestion  that  a  court  can  command  the 
withdrawal  of  a  sum  of  money  from  the  Treasury 
of  the  United  States,  to  be  applied  in  satisfac- 
tion of  disputed  or  controverted  claims  against 
the  United  States,  is  such  that  its  simple  state- 
ment must  carry  with  it  the  most  startling  con- 
siderations and  unavoidable  negative;  for  it 
would  occur,  a  priori,  to  every  mind  that  a 
Treasury  not  fenced  round  and  shielded  by 
fixed  and  established  modes  and  rules  of  ad- 
ministration but  which  could  be  subjected 
to  any  number  or  description  of  demands,  as- 
sorted and  sustained  through  the  undefined  and 
undefinable  discretion  of  courts,  would  con- 
stitute a  feeble  and  inadequate  provision  for 
the  great  and  inevitable  necessities  of  the 
Nation.  The  Government,  under  such  a 
regime,  or  rather  such  an  absence  of  all  rule, 
would,  if  practicable  at  all,  be  administered 
not  by  the  great  departments  ordained  by  the 
Constitution  and  laws,  and  guided  by  the  modes 
therein  prescribed,  but  by  the  uncertain,  and 
perhaps  contradictory,  action  of  the  courts  in 
the  enforcement  of  their  views  of  private  in- 
terest. (U.  S.  V.  Guthrie,  17  How.,  303;  State 
of  Mississippi  v.  Durham,  4  Mackey  (D.  C),  238. 
See  also  Kendall  i;.  U.  S.,  12  Pet.,  524;  Decatur 
V.  Paulding,14  Pet.,  497,  515;  Brashear-y.  Mason, 
6  How.,  101.) 

The  Department  of  the  Treasury  seems  fully 
equipped  for  the  discharge  of  every  fiscal  duty 
and  exigency;  and  therefore,  independently  of 
general  considerations  of  abstract  policy,  the 
Government  would  seem  to  be  justified  in  main- 


taining, in  all  its  integrity,  the  dogma  that  it 
can  not  by  any  form  of  process,  base  its  rights 
of  property  subjected  to  the  arbitrament  of  a 
judicial  tribunal,  without  its  explicit  consent 
in  due  form  of  law.  (State  of  Mississippi  v. 
Durham,  4  Mackey  (D.  C),  237.) 

Mandamus  will  not  lie  against  an  officer  of 
the  Treasury  Department  who  refuses  to  allow 
and  pay  a  claim  against  the  United  States;  for, 
however  obviously  without  legal  justification 
his  refusal  may  be,  mandamus  against  him  to 
compel  such  allowance  is  none  the  less,  in 
effect,  a  suit  against  the  United  States,  and  it 
is  well  settled  that  no  action  can  be  sustained 
against  the  Government  itself,  for  any  supposed 
debt,  unless  by  its  consent  under  some  special 
statute  allowing  it.  (State  of  Mississippi  v. 
Durham,  4  Mackey_  (D.  C),  235.)  [But  in 
Moser  v.  Meyer,  which  was  a  mandamus  pro- 
ceeding against  the  Secretary  of  the  Navy,  the 
Court  of  Appeals  of  the  District  of  Columbia 
said :  ' '  Nor  are  we  prepared  to  give  the  opinion 
that  the  Secretary  of  the  Navy,  sued  with  re- 
spect to  a  matter  Ijing  entirely  within  the 
duties  of  his  office,  is  the  same  defendant  as 
the  United  States  when  sued  for  pay  by  an 
ofhcer  of  the  Nav>'.''  38  App.  (D.  C),  13,  and 
see  Goldberg  v.  Daniels,  231  U.  S.,  218,  holding 
that  the  United  States  is  not  a  party  to  manda- 
mus proceedings  against  the  Secretary  of  the 
Navy.] 

For  other  decisions  see  note  to  section  417, 
Revised  Statutes;  and  see  McElrath  v.  Mcin- 
tosh (16  Fed.  Cas.  No.  8781.) 


Sec.  237.  [Commencement  of  fiscal  year.]  The  fiscal  year  of  the  Treasury 
of  the  United  States  in  all  matters  of  accounts,  receipts,  expenditures,  estimates, 
and  appropriations,  except  accounts  of  the  Secretary  of  the  Senate  for  com- 
pensation and  traveling  expenses  of  Senators,  and  accounts  of  the  Sergeant-at- 
Arms  of  the  House  of  Representatives  for  compensation  and  mileage  of  members 
and  delegates  shall  commence  on  the  first  day  of  July  in  each  year;  and  all 
accounts  of  receipts  and  expenditures  required  by  law  to  be  published  annually 
shall  be  prepared  and  pubhshed  for  the  fiscal  year,  as  thus  established.  The 
fiscal  year  for  the  adjustment  of  the  accounts  of  Secretary  of  the  Senate  for 
compensation  and  traveling  expenses  of  Senators,  and  of  the  Sergeant-of-Arms 
of  the  House  of  Representatives  for  compensation  and  mileage  of  members  and 
delegates  shall  extend  to  and  include  the  third  day  of  July. 


This  section  -was  amended  to  read  as 
above  by  act  October  1,  1890  (26  Stat.,  646). 
Originally  it  provided  as  follows : 

"Sec.  237.  The  fiscal  year  of  the  Treasury  of 
the  United  States  in  all  matters  of  accounts, 
receipts,  expenditures,  estimates,  and  appro- 
priations, except  accounts  of  the  Secretary  of 
the  Senate  for  compensation  and  traveling 
expenses  of  Senators,  shall  commence  on  the 
first  day  of  July  in  each  year;  and  all  accounts 
of  receipts  and  expenditures  required  by  law 
to  be  published  annually  shall  be  prepared  and 
published  for  the  fiscal  year,  as  thus  established. 
The  fiscal  year  for  thv,  adjustment  of  the  ac- 


counts of  the  Secretary  of  the  Senate  for  com- 
pensation and  traveling  expenses  of  Senators 
shall  extend  to  and  include  tlie  third  day  of 
July."— (26  Aug.,  1842,  c.  207,  ss.  1,  2,  v.  5,  p. 
536;  8  May,  1872,  c.  139,  s.  1,  v.  17,  p.  61;  3 
Mar.,  1873,  c.  226,  s.  1,  v.  17,  p.  486.) 

Purpose  and  effect  of  la-w. — Before  the 
passage  of  the  act  of  August  26,  1842  (5  Stat. 
536),  afterwards  incorporated  in  section  237, 
Revised  Statutes,  the  fiscal  year  commenced 
with  and  ended  Avith  the  calendar  year;  but 
for  the  convenience  of  the  public  service,  in 
the  administration  of  the  expense,  accounts, 
and   estimates  of  the   Government,    Congress 


257 


Sec.  237. 


PL  2.  REVISED  STATUTES. 


Treasury  Department. 


dianged  Uie  law  so  as  to  make  the  first  day  of 
July  the  commencement  of  the  fiscal  year. 
(Sweet  V.  U.  S.,  34  Ct.  Cls.,  377,  385.) 

This  section  does  not  forbid  a  public  officer 
to  demand  payment  of  fees  due  htm  at  any 
time.  It  merely  pro\ides  that  the  fiscal  year 
shall  commence  on  the  first  day  of  July,  and  that 
the  annual  accounts  shall  be  for  the  fiscal  year. 
There  is  not  a  word  that  bears  even  remotely 
upon  the  time  when  accounts  or  claims  shall 
become  due  or  when  they  shall  be  paid.  No 
payments  are  hastened  and  none  deferred  by 
this  law.  It  might  be  claimed  with  equal 
propriety  that  this  enactment  postpones  to  the 


end  of  the  fiscal  year  the  liquidation  of  all 
claims  which  have  no  special  day  designated 
for  payment.  (Patterson  v.  U.  S.,  21  Ct.  Cls., 
322.) 

However,  where  officers  are  entitled  to  annual 
salaries,  varying  in  amount  according  to  the 
amoirut  of  business  transacted  in  therr  offices 
during  each  current  year,  the  maximum  com- 
pensation to  which  they  are  entitled  is  an 
annual  compensation,  and  is  not  due  until  the 
end  of  each  fiscal  year.  (Bachelor  v.  U.  S., 
8  Ct.  Cls.,  239;  Patterson  v.  U.  S.,  21  Ct.  Cls., 
324.) 


258 


CHAPTER  TWO. 

THE  SECRETARY  OF  THE  TREASURY. 

Sec.  248.  [Forms  of  keeping  and  rendering  accounts;  etc.]  The  Secretary 
of  the  Treasury  shall,  from  time  to  time,  digest  and  prepare  plans  for  the  improve- 
ment and  management  of  the  revenue,  and  for  the  support  of  the  public  credit ; 
shall  superintend  the  collection  of  the  revenue;  shall,  from  time  to  time,  pre- 
scribe the  forms  of  keeping  and  rendering  all  public  accoimcs  and  making  returns ; 
shall  grant,  xmder  the  limitations  herein  established,  or  to  be  hereafter  provided, 
all  warrants  for  moneys  to  be  issued  from  the  Treasury  in  pursuance  of  appro- 
priations by  law;  shall  make  report,  and  give  information  to  either  branch  of  the 
legislature  m  person  or  in  writing,  as  may  be  required,  respecting  all  matters  re- 
ferred to  him  by  the  Senate  or  House  of  Representatives,  or  which  shall  apper- 
tain to  his  office;  and  generally  shall  perform  all  such  services  relative  to  the 
finances  as  he  shall  be  directed  to  perform.  [See  §§  3660-3665,  3669,  3670, 
3672.]— (2  Sept.,  1789,  c.  12,  s.  2,  v.  1,  p.  65;  8  May,  1792,  c.  37,  s.  9,  v.  1,  p.  281 ; 
3  Mar.,  1849,  c.  108,  s.  3,  v.  9,  p.  395,  20  June,  1874,  c.  344,  v,  18,  p.  127;  Ex 
parte  Hennen,  13  Pet.,  230;  Neilson  v.  Lagow,  12  How.,  98,  (107).) 


This  section  was  amended  by  act  of  July 
31,  1894,  section  5  (28  Stat.,  206),  which  pro- 
vides that  "The  Comptroller  of  the  Treasury 
shall,  under  the  direction  of  the  Secretary  of 
the  Treasury,  prescribe  the  forms  of  keeping 
and  rendering  all  public  accounts,  except  those 
relating  to  the  postal  revenues  and  expendi- 
tures therefrom." 

In  the  expenditure  of  all  public  moneys 
it  is  the  invariable  rule  to  require  that  accounts 
shall  be  furnished  itemized  as  far  as  practicable, 
in  order  that  the  accounting  officers  may  prop- 
erly audit  them.  *  *  *  The  law  may  per- 
mit the  exercise  ot  discretion  in  the  use  of  public 
funds,  without  dispensing  with  the  usual  re- 
quirement of  an  itemized  account  showing  fully 
for  what  purposes  the  money  has  been  expended . 
(4  Comp.  Dec,  159;  4  Comp.  Dec,  271.) 

The  Comptroller  of  the  Treasury  has  no 


jurisdiction  to  approve  or  disapprove  forms 
which  are  not  accounting  forms;  as,  for  exam- 
ple, forms  issued  by  the  Secretary  of  the  Navy 
for  the  use  of  the  naval  service  in  designating 
beneficiaries  to  receive  death  gratuity  under  the 
act  May  13,  1908  (35  Stat.,  128).  (Comp.  Dec, 
June  8,  1908,  file  26254-44.) 

The  Secretary  of  the  Treasury  may  im- 
press his  name  with  a  stamp  or  copperplate 
upon  a  document,  provided  he  keep  the  stamp 
or  copperplate  in  his  own  possession  and  apply 
it  himself  or  cause  it  to  be  appUed  in  his  pres- 
ence; and  this  is  a  sufficient  signing  in  law 
where  a  statute  requires  that  certain  documents 
be  signed  by  him.  The  word  "signing"  does 
not  necessarily  imply,  in  legal  acceptation  at 
least,  the  use  of  pen  and  ink,  held  and  guided 
by  the  hand  of  the  person  himself.  (1  Op. 
Atty.  Gen.,  670.) 


Sec.  250.  [Settlement  of  accounts  within  fiscal  year.     Repealed.] 


This  section  provided  as  foUows: 

"Sec.  250.  The  Secretary  of  the  Treasury 
shall  cause  all  accounts  of  the  expenditure  of 
public  money  to  be  settled  within  each  fiscal 
year,  except  where  the  distance  of  the  places 
where  such  expenditure  occurs  may  be  such  as 
to  make  further  time  necessary;  and  in  respect 


to  expenditures  at  such  places,  the  Secretary 
of  the  Treasury,  with  the  assent  of  the  President, 
shall  establish  fixed  periods  at  which  a  settle- 
ment shall  be  required." — (3  Mar.,  1817,  c  45, 
8.  13,  V.  3,  p.  368.) 

It  was  superseded  and  repealed  by  act 
July  31,  1894,  section  12  (28  Stat.,  209). 


Sec.  251.  [Rules,  regulations,  and  forms.]  The  Secretary  of  the  Treasury 
shall  make  and  issue  from  time  to  time  such  instructions  and  regulations  to 
the  several  collectors,  receivers,  depositaries,  officers,  and  others  who  may 
receive  Treasury  notes.  United  States  notes,  or  other  securities  of  the  United 


259 


Sec.  251. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


States,  or  who  may  be  in  any  way  engaged  or  employed  in  the  preparation 
and  issue  of  the  same,  as  he  shall  deem  best  calculated  to  promote  the  public 
convenience  and  security,  and  to  protect  the  United  States,  as  well  as  individ- 
uals, from  fraud  and  loss;  he  shall  prescribe  forms  of  entries,  oaths,  bonds,  and 
other  papers,  and  rules  and  regulations,  not  inconsistent  with  law,  to  be  used 
under  and  in  the  execution  and  enforcement  of  the  various  provisions  of  the 
internal-revenue  laws,  or  in  carrying  out  the  provisions  of  law  relating  to  rais- 
ing revenue  from  imports,  or  to  duties  on  imports,  or  to  warehousing;  he  shall 
give  such  directions  to  collectors  and  prescribe  such  rules  and  forms  to  be  ob- 
served by  them  as  may  be  necessary  for  the  proper  execution  of  the  law;  he 
shall  also  prescribe  the  forms  of  the  annual  statements  to  be  submitted  to  Con- 
gress by  him.  showing  the  actual  state  of  commerce  and  navigation  between 
the  United  States  and  foreign  countries,  or  coastwise  between  the  collection 
districts  of  the  United  States,  in  each  year. — (10  Feb.,  1820,  c.  11,  ss.  14,  15, 
V.  3,  p.  548;  6  Aug.  1846,  c.  84,  s.  5,  v.  9,  p.  55;  30  June,  1864,  c.  172,  s.  8, 
v.  13,  p.  221;  14  July,  1870,  c.  255,  s.  34,  v.  16,  p.  271;  14  May,  1856,  Res.  9, 
V.  11,  p.  144;  Lennig  v.  Maxwell,  3  Blatch.,  125;  Munsell  v.  Maxwell,  3 
Blatch.,  364.) 


On  general  subject  of  regulations,  see  section 
161,   Revised  Statutes,  and  note  thereto. 

As  to  forms  of  keeping  and  rendering  accounts, 
see  section  248,  Revised  Statutes,  and  note 
thereto. 

Persons  connected  with  the  Navy  are  forbidden 
to  import  in  a  public  vessel  any  article 
which  is  liable  to  the  payment  of  duty. 
(Sec.  1624,  R.  S.,  art.  12.) 

Punishment  by  general  coiu-t-martial  is  pro- 
vided for  transporting  on  naval  vessels  any 
goods  or  merchandise  for  freight,  sale,  or 
traffic,  except  gold,  silver,  or  jewels  for 
freight  or  safekeeping.  (Sec.  1624,  R.  S., 
art.  8,  clause  13.) 


The  Naval  Instructions,  1913,  contain 
the  f  ollo'wlng  rules  relative  to  customs  in- 
spections of  naval  vessels: 

"  1321.  (1)  When  any  sliip  under  the  control 
of  the  Navy  Department  arrives  within  the 
territory  of  the  United  States,  after  having 
visited  a  foreign  port  or  ports,  the  command- 
ing officer  thereof  or,  in  the  case  of  a  number 
of  ships  in  company,  the  senior  officer  present, 
shall  inform  the  collector  of  such  United  States 
port  of  the  arrival  of  tlae  said  ship  or  ships,  and 
shall  hold  such  ship  or  ships  subject  to  such 
customs  inspection  as  the  collector  of  the  port 
shall  be  directed  to  make  by  the  Treasury  De- 
partment. Commanding  officers  shall  see  that 
no  dutiable  articles  are  landed  until  after  such 
action  has  been  taken  by  the  collector  of  the 
port.  If  the  first  port  visited  be  not  a  port  of 
entry,  the  provisions  of  this  order  shall  be  com- 
plied with  at  the  first  i:)ort  of  entry  visited 
thereafter. 

"(2)  The  commanding  officer  of  each  such 
ship  shall  cause  each  person  on  board  who  has 
purchased  or  othervvise  acquired  articles  abroad 
which  he  intends  to  land  from  the  ship  to 
furnish  a  list  of  such  articles  and  the  prices 
paid  therefor,  separately  stating  articles  of  wear- 


ing apparel  and  similar  personal  effects  intended 
for  then-  personal  use  and  articles  intended  for 
others.  AH  such  articles  shall  be  conveniently 
packed,  ready  for  examination  by  the  customs 
officials  upon  arrival. 

"(3)  The  Secretary  of  the  Treasury  has  in- 
structed the  customs  officers  to  examine  and 
appraise  such  articles  and  to  collect  the  duties 
accruing  thereon,  after  allo^ving  the  one  hun- 
dred dollars  exemption  upon  wearing  apparel 
and  similar  personal  effects  intended  for  per- 
sonal use.  No  customs  examination  of  baggage 
other  than  that  so  listed  and  presented  for  ex- 
amination will  be  made. 

' '  (4)  The  provisions  of  this  article  shall  not 
be  construed  to  delay  the  movements  of  any 
naval  vessel  engaged  in  the  performance  of  her 
duty." 

Treasury  Regulations,  scope  and  effect 
of. — Where  a  statute  is  silent  in  matters  of  de- 
tail, the  Secretary  of  the  Treasury  is  doubtless 
vested  with  a  certain  discretion  under  the  power 
given  him  by  this  section  to  make  rules  and 
regulations  not  inconsistent  with  law  for  carry- 
ing out  the  provisions  of  law  relating  to  raising 
revenue  from  imports.  In  construing  regula- 
tions so  adopted,  it  must  be  borne  in  mind  that 
the  Secretary  of  the  Treasury  is  an  officer  of 
the  Government;  that  his  powers  are  limited 
by  law;  that  his  duty  is  to  protect  the  revenues 
of  the  Government  and  to  prevent  smuggling 
or  other  illegal  practices  whereby  the  Govern- 
ment may  be  defrauded  of  its  revenue;  and 
that  he  owes  no  duty  to  individuals  beyond 
seeing  that  their  rights  are  not  prejudiced  any 
further  than  is  necessary  by  the  action  of  cus- 
toms officers.  (Constable  v.  National  Steam- 
sliip  Co.,  154  U.  S.,  75,  76.) 

The  contention  that  under  the  guise  of  regu- 
lations the  Secretary  of  the  Treasury  has  as- 
sumed legislative  power  confided  by  the  Con- 
stitution solely  to  Congress,  does  not  constitute 
a  real  and  substantial  dispute  or  controversy 
concerning  the  construction  or  application  of 


260 


Treasury  Department. 


Ft.  2.  REVISED  STATUTES. 


Sec.  260. 


the  Constitution,  so  as  to  authorize  a  direct 
appeal  to  the  Supreme  Court  of  the  United 
States  from  a  decision  of  the  Circuit  Court  of 
Appeals.  (American  Sugar  Refining  Co.  v. 
U.  S.,  211  U.  S.,  161.) 

Wliere  regulations  of  the  Treasury  Depart- 
ment are  such  as  are  warranted  by,  and  not  in- 
consistent with,  the  law,  they  have  the  effect 
of  law.  (Von  Cotzhausen  v.  Nazro,  15  Fed. 
Rep.,  897.) 

However  extensive  may  be  the  general 
powers  of  the  Secretary  of  the  Treasury  under 
this  and  other  sections,  they  can  not  authorize 
any  acts  in  conflict  ^vith  the  particular  provi- 
sions of  the  law.   (U.  S.i;.Leng,18Fed.Rep.,21.) 

A  regulation  and  circular  which  the  Secre- 
tary of  the  Treasury  was  authorized  to  make 
and  issue  under  this  section,  not  being  incon- 
sistent with  any  pro\dsion  of  law,  objections  to 
their  admission  in  evidence  (their  authentica- 
tion being  conceded)  are  unsound.  (U.  S.  v. 
Brendel,  136  Fed.  Rep.,  740.) 

Wliere  regulations  promulgated  by  the  Sec- 
retary of  the  Treasury  under  this  section  are 
substantially  followed  by  Government  officers, 
the  findings  by  those  officers  are  conclusive. 
(U.  S.  V.  Lueder,  154  Fed.  Rep.,  1.) 

Congress  may  enact  a  law  and  delegate  the 
power  of  finding  some  fact  or  state  of  things 
upon  which  the  operation  of  the  law  is  made 
to  depend .  Where  Congress  instead  of  includ- 
ing in  a  statute  a  matter  of  detail,  left  the  de- 
termination of  the  fact  to  the  Secretary  of  the 
Treasury,  a  regulation  of  the  Secretary  of  the 


Treasury  pursuant  thereto,  determining  the 
act,  is  as  conclusive  as  if  the  standard  fixed  by 
the  regulation  had  been  named  in  the  law  it- 
self. If  in  fixing  the  standard,  the  Secretary 
of  the  Treasury  does  not  legislate  by  amending 
the  law  or  altering  it,  nor  act  judicially  by 
deciding  a  fact  which  was  one  which,  in  its 
intrinsic  nature,  required  judicial  determina- 
tion, it  is  difficult  to  see,  in  the  absence  of  fraud 
or  bad  faith,  upon  what  theory  a  fact  which 
Congress  has  submitted  to  his  determination 
can  be  subject  to  review.  (Cooperville,  etc., 
Co.  V.  Lemon,  163  Fed.  Rep.,  145,  decided  by 
Circuit  Court  of  Appeals  for  the  Sixth  Circuit.) 
[The  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit  reached  a  directly  opposite  conclusion 
as  to  tlie  validity  of  the  particular  regulation 
which  was  sustained  in  this  case,  holding  that 
the  legal  effect  of  said  regulation  was  to  modify, 
radically,  an  act  of  Congress,  and  to  bring  under 
its  penal  provisions  property  and  persons  ex- 
pressly excluded  therefrom  by  the  terms  of  the 
law,  and  therefore  that  the  regulation  was  void, 
as  the  Secretary  of  the  Treasury  has  no  authority 
thus  to  create  and  punish  crimes.  (U.  S.  v. 
Butter  (Milton  Dairy  Co.,  Claimant)  195  Fed. 
Rep.,  657.)] 

Regulations  issued  by  the  Secretary  of  the 
Treasury  with  reference  to  the  internal  revenue 
and  for  the  government  of  the  officers  of  the 
Revenue  Department,  have  the  force  and  effect 
of  law  and  are  as  binding  as  if  incori^orated  in 
the  statute  law  of  the  United  States.  (Stegall 
V.  Thurman,  175  Fed.  Rep.,  813.) 


Sec.  255.  [Appointment  of  disbursing  agents.]  The  Secretary  of  the 
Treasury  may  designate  any  officer  of  the  United  States,  who  has  given  bonds 
for  the  faithful  performance  of  his  duties,  to  be  disbursing  agent  for  the  pay- 
ment of  all  moneys  appropriated  for  the  construction  of  pubUc  buildings 
authorized  by  law  within  the  district  of  such  officer. — (3  Mar.,  1869,  c.  122,  s.  1, 
V.  15,  pp.  301,  306.) 


Employment  of  special  disbursing  agents  by  the 
Secretary  of  the  Navy:      See  section  3614, 
Revised  Statutes. 
The  Secretary  of  the  Treasury  can  not 
designate  an  officer  in  the  city  of  Washing- 
ton to  be  a  disburshxg  agent  in  another  place 
under  this  section;  because,  not  being  attached 
to  any  district,  the  buildings  for  which  his  dis- 
l)ursements    would    be    made    would    not    be 
within  his  district;  nor  can  a  special  disbursing 
agent  be  designated  at  a  place  where  there  is  a 
collector  of  customs,  in  view  of  the  provisions 
of  section  3658,  Revised  Statutes  (Bartlett  v. 
U.  S.,  25  Ct.  Cls.,  389;  affirmed  197  U.  S.,  230.) 


This  law  is  general  and  without  limita- 
tion as  to  place.  It  applies  to  "all  moneys 
appropriated  for  the  construction  of  public 
buildings  authorized  by  law,  within  the  district 
of  such  officer."     (19  Op.  Atty.  Gen.,  393.) 

Additional  pay  prohibited. — An  officer  of 
the  United  States  designated  as  disbursing 
agent  within  his  district  under  this  section, 
would  not  be  entitled  to  any  additional  pay, 
because  of  the  provisions  of  sections  1764,  1765, 
Revised  Statutes.  (Bartlett  v.  U.  S.,  197 
U.  S.,  234.) 


Sec.  260.  [Reports  upon  appropriations  for  Departments  of  War  and  Navy.] 
The  Secretary  of  the  Treasury  shall  lay  before  Congress  at  the  commencement 
of  each  regular  session,  accompanyuig  his  annual  statement  of  the  public 
expenditure,  the  reports  which  may  be  made  to  him  by  the  Auditors  charged 
with  the  examination  of  the  accounts  of  the  Department  of  War  and  the  Depart- 


261 


Sec.  266. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


ment  of  the  Navy,  respectively,  showing  the  application  of  the  money  appro- 
priated for  those  Departments  for  the  preceding  year. — (3  Mar.,  1817,  c.  45, 
s.  6,  V.  3,  p.  367.) 


By  act  of  June  19,  1878  (20  Stat.,  167)  it  was 
provided:  "That  from  and  after  the  pas- 
sage of  this  act,  it  shall  be  the  duty  of  the 
Secretary  of  the  Treasury  to  transmit  to 
Congress  annually  a  tabular  statement 
showing  in  detail  the  receipts  and  expendi- 
tures in  the  naval  service  under  each  ap- 
propriation, as  made  up  and  determined 


by  the  proper  officers  of  the  Treasury  De- 
partment, upon  the  accounts  of  disbursing 
officers  renclered  for  settlement.  Sec.  2. 
There  shall  be  appended  to  this  statement 
an  account  of  balances  in  the  hands  of 
disbursing  agents  at  the  close  of  each  fiscal 
year,  and  a  report  of  any  amounts  lost  or 
unaccounted  for  by  vouchers." 


Sec.  264.  [Report  of  Coast  Survey  expenditures.]  The  Secretary  of  the 
Treasury  shall  report  to  Congress  annually  the  number  and  names  of  the  per- 
sons employed  during  the  last  preceding  fiscal  year  upon  the  Coast  Survey 
and  business  connected  therewith;  the  amomit  of  compensation  of  every 
kind  respectively  paid  them,  for  what  purpose,  and  the  length  of  time 
employed;  and  shall  report  a  full  statement  of  all  other  expenditures  made 
under  the  direction  of  the  Superintendent  of  the  Coast  Survey. — (3  Mar.,  1853, 
c.  97,  s.  3,  V.  10,  p.  209;  15  Aug.,  1876,  c.  287,  v.  19,  f.  156.) 


The  Coast  and  Geodetic  Survey  was  transferred 
from  the  Treasury  Department  to  the 
Department  of  Commerce  and  Labor  by 
acts  of  February  14,  1903  (32  Stat.,  826), 
and  March  3,  1903  (32  Stat.  1082).  The 
name  of  the  Department  of  Commerce  and 
Labor  was  changed  to  Department  of  Com- 
merce by  act  of  March  4,  1913  (37  Stat., 
736) .  Transfer  to  the  War  or  N avy  Depart- 
ment, in  time  of  national  emergency,  of 
the  Coast  and  Geodetic  Survey,  was  author- 
ized by  act  of  May  22,  1917  (40  Stat.,  87). 

The  President  was  authorized  to  employ  public 
vessels  in  Coast  Survey  by  section  4686, 
Revised  Statutes. 

Employment  of  Navy  officers  in  Coast  Survey 
was  provided  for  by  sections  4684  and  4687, 
Revised  Statutes. 

Employment  of  enUsted  men  of  the  Navy  in  the 
Coast  Survey  was  authorized  by  annual  ap- 
propriations under  "  Pay  of  the  Navy  "  prior 
to  act  of  June  7,  1900  (31  Stat.,  684).  See 
Comp.  Dec,  Oct.  27,  1910  (116  S.  and  A. 
Memo.,  1595);  and  file  3809-434,  Nov.  17, 
1914. 

Officers  of  the  Navy  are  entitled  to  sea  pay 
while  attached  to  and  serving  on  board 
any  ship  in  commission  under  the  control 
of  the  Coast  Survey.  (Art.  R-4405  (1), 
Navy  Regs.,  1913.) 

Officers  of  the  Navy  ordered  to  report  by  letter 
to  the  Secretary  of  Commerce  for  duty  in 


the  Coast  Survey,  are  entitled  to  shore 
pay  from  the  dale  they  so  report.  (Art. 
R-4407  (4),  Navy  Regs.,  1913.) 

Members  of  the  Naval  Hospital  Corps  were  re- 
quired to  perform  all  necessary  hospital 
and  ambulance  service  in  vessels  of  the 
Coast  Survey  by  act  of  June  17,  1898  (30 
Stat.,  475),  superseded  by  other  provisions 
contained  in  the  act  of  August  29,  1916  (39 
Stat.,  573);  see  also  art.  1-3261,  Naval  In- 
structions, 1913. 

Extra  allowance  for  subsistence  of  officers  and 
men  of  the  Navy  employed  in  Coast  Sur- 
vey was  authorized  by  section  4688,  Re- 
vised Statutes,  which  was  amended  by 
acts  of  August  4,  1886  (24  Stat.,  233),  and 
March  3,  1887  (24  Stat.,  521),  prohibiting 
allowance  for  subsistence  to  Navy  officers 
attached  to  Coast  and  Geodetic  Survey. 
Further  amendment  was  contained  in 
acts  of  March  2,  1889  (25  Stat.,  952),  and 
August  30,  1890  (26  Stat.  382).  authorizing 
allowance  for  subsistence  to  detailed  Navy 
officers,  detached  to  do  work  away  from 
their  vessels  under  circumstances  involving 
extra  expenditures. 

Annual  reports  w^ere  required  of  Coast  Survey 
by  section  4690,  Revised  Statutes;  pro- 
visions for  printing  and  distribution  of 
repoi'ts  were  contained  in  acts  of  January 
12,  1895  (28  Stat.,  613),  and  April  20,  1896 
(29  Stat.,  471). 


Sec.  266.  [Quarterly  publication  of  receipts  and  expenditures.]  The  Secre- 
tary of  the  Treasury,  at  the  expiration  of  tliirty  days  from  the  end  of  each 
quarter,  shall  cause  to  be  pubhshed  in  some  newspaper  at  the  seat  of  govern- 
ment a  statement  of  the  whole  receipts  of  such  quarter,  specifying  the  amount 
received  from  customs,  from  pubhc  lands,  and  from  miscellaneous  sources, 
and,  also,  the  whole  amount  of  payments  made  during  the  said  quarter,  speci- 
fymg  the  general  head  of  appropriation,  whether  for  the  civil  list,  the  Army, 
the  Navy,  Indian  Affairs,  fortifications,  or  pensions. — (17  June,  1844,  c.  105, 
s.  6,  V.  5,  p.  696.) 

262 


CHAPTER  THREE. 

THE  COMPTROLLERS. 

[Foe  Laws  in  Effect  March  4, 1921,  with  Reference  to  the  Powers  aito  Duties  of  the  Compteollee  of  the 
Treasxiry  and  the  Auditor  for  the  Navy  Department,  see  Act  of  July  31, 1894  (28  Stat.,  205).  Section  9  of 
SAID  Act  (28  Stat.,  208)  Provided  That  "This  Act,  in  so  far  as  it  Relates  to  the  First  Comptroller  of  the 
Treasury  and  the  Several  Auditors  and  Deputy  Auditors  of  the  Treasury,  shall  be  Held  and  Construed 
TO  Operate  Merely  as  Changing  Their  Designation  and  as  Adding  to  and  Modifying  Their  Duties  and 
Powers,  and  not  as  Creating  New  Officers."] 


Sec.  268.  [Comptrollers.]  There  shall  be  in  the  Department  of  the  Treasury 
a  Fu"st  Comptroller  and  a  Second  Comptroller,  each  of  whom  shall  be  appomted 
by  the  Presidetit,  by  and  with  the  advice  and  consent  of  the  Senate,  and  shall 
be  entitled  to  a  salary  of  five  thousand  dollars  a  year. — (2  Sept.,  1789j  c.  12, 
s.  l,v.  l,p.  65;  3  Mar.,  1817,  c.  45,  s.  3,  v.  3,  p.  366;  18  May,  1872,  c.  172,  s.  1, 
V.  17,  p.  127;  3  Mar.,  1875,  c.  130,  s.  2,  v.  18,  p.  396.) 


For  modification  of  this  section  see  act  of  July 
31,  1894,  section  4  (28  Stat.,  206),  which 
abolished  the  office  of  Second  Comptroller 


and  changed  the  designation  of  the  First 
Comptroller  to  Comptroller  of  the  Treasury. 


Sec.  269.  [Duties  of  First  Comptroller.     Repealed.] 


This  section  provided  as  follows: 

"Sec.  269.  It  shall  be  the  duty  of  the  First 
Comptroller: 

"First.  To  examine  all  accounts  settled  by 
the  First  Auditor,  except  those  relating  to  re- 
ceipts from  customs,  and  all  accounts  settled  by 
the  Fifth  Auditor,  and  by  the  Commissioner  of 
the  General  Land-Office,  and  to  certify  the 
balances  arising  thereon  to  the  Register. 

' '  Second .  To  superintend  the  ad j  ustment  and 
preservation  of  the  pubUc  accounts  subject  to 
his  revision. 

"Third.  To  countersign  all  warrants  drawn 
by  the  Secretary  of  the  Treasury,  which  shall 
be  warranted  by  law. 


"Fourth.  To  superintend  the  recovery  of  all 
debts  certified  by  him  to  be  due  to  the  United 
States,  and  for  that  purpose  to  direct  all  such 
suits  and  legal  proceedings,  and  to  take  such 
measures  as  may  be  authorized  by  law,  and  are 
adapf^ed  to  enforce  prompt  payment  thereof." 
[See  §  1660.]— (2  Sept.,  1789,  c.  12,  s.  3,  v.  1, 
p.  66;  3  Mar.,  1817,  c.  45,  ss.  8,  10,  v.  3,  p.  367; 
3  Mar.,  1849,  c.  108,  s.  12,  v.  9,  p.  396;  Neilson 
V.  Lagow,  12  How.,  98.) 

It  wa^  expressly  repealed  by  act  of  July 
31,  1894,  section  11  (28  Stat.,  209);  the  designa- 
tion of  the  First  Comptroller  was  changed  to 
Comptroller  of  the  Treasury  by  section  4  of  the 
same  act  (28  Stat.,  206). 


Sec.  271.  [Power  to  direct  settlement  of  accounts.     Superseded.] 


This  section  provided  as  foUows: 

"Sec.  271.  The  First  Comptroller,  in  every 
case  where,  in  his  opinion,  further  delays  would 
be  injurious  to  the  United  States,  shall  direct 
the  First  and  Fifth  Auditors  of  the  Treasury 
forthwith  to  audit  and  settle  any  particular  ac- 
count which  such  officers  may  be  authorized  to 
audit  and  settle,  and  to  report  such  settlement 


by 

28, 


the  First 

s.  2,  v.  2, 


for  revision  and  final  decision 
Comptroller."— (3  Mar.,  1809,  c. 
p.  536.) 

It  was  superseded  by  act  of  July  31,  1894, 
section  6  (28  Stat.,  206),  which  authorized  the 
Comptroller  of  the  Treasury  to  direct  any  of  the 
Auditors  to  audit  and  settle  any  particular  ac- 
count. 


Sec.  272.  [Report  of  officers  failing  to  make  settlement.     Repealed.] 


This  section  provided  as  foUows: 

"Sec.  272.  The  First  Comptroller  shall  make 
an  annual  report  to  Congress  of  such  officers  as 
shall  have  failed  to  make  settlement  of  their 
accounts  for  the  preceding  fiscal  year,  within 
the  year,  or  within  such  further  time  as  may 
have  been  prescribed  by  the  Secretary  of  the 
Treasury  for  such  settlement."  [See  §§  195, 
196.]— (3  Mar.,  1817,  c.  45,  e.  13,  v.  3,  p.  368.) 


It  was  expressly  repealed  by  act  of  July 
31,  1894,  section  12  (28  Stat.,  209).  Provision 
for  annual  report  to  Congress  by  the  Secretary 
of  the  Treasury,  of  officers  delinquent  in  render- 
ing accounts,  is  contained  in  act  of  May  28, 
1896,  section  4  (29  Stat.,  179). 


263 


Sec.  278. 


Pt.2.  RE  VISED  STAT  UTES . 


Treasury  Department. 


Sec.  273.  [Duties  of  Second  Comptroller.     Repealed.] 


This  section  provided  as  follows: 

"Sec.  273.  It  shall  be  the  duty  of  the  Second 
Comptroller: 

"First.  To  examine  all  accounts  settled  by 
the  Second,  Third,  and  Fourth  Auditors,  and 
certify  the  balances  arising  thereon  to  the  Secre- 
tary of  the  Department  in  which  the  expendi- 
ture has  been  incurred. 

"Second.  To  countersign  all  warrants  drawn 
by  the  Secretaries  of  War  and  of  the  Navy,  which 
shall  be  warranted  by  law.     [See  §  3673.] 

"Third.  To  report  to  the  Secretaries  of  War 
and  of  the  Navv  the  official  forms  to  be  issued 


in  the  different  offices  for  disbursing  the  pub- 
lic money  in  those  Departments,  and  the  man- 
ner and  form  of  keeping  and  stating  the  ac- 
counts of  the  persons  employed  therein. 

"Fourth.  To  superintend  the  preservation  of 
the  public  accounts  subject  to  his  revision." — 
(3  Mar.,  1817,  c.  45,  s.  9,  v.  3,  p.  367;  7  May, 
1822,  c.  90,  s.  3,  v.  3,  p.  689.) 

It  was  expressly  repealed  by  act  of  July 
31,  1894,  section  7  (28  Stat.,  206). 


Sec.  274.  [Arrears  of  pay  due  deceased  seamen.]  The  Second  Comptroller 
may  prescribe  rules  to  govern  the  payment  of  arrears  of  pay  due  to  any  petty 
officer,  seaman,  or  other  person  not  an  officer,  on  board  any  vessel  in  the  employ 
of  the  United  States,  which  has  been  sunk  or  destroyed,  in  case  of  the  death 
of  such  petty  officer,  seaman,  or  person,  to  the  person  designated  by  law  to 
receive  the  same.— (4  July,  1864,  c.  248,  s.  3,  v.  13,  p.  390.) 


The  duties  of  the  Second  Comptroller  were 
transferred  to  the  Comptroller  of  the  Treas- 
ury bv  act  of  July  31,  1894,  section  4  (28 
Stat,  205). 

The  manner  of  settling  accounts  of  deceased 
officers  and  enlisted  men  in  the  Navy 
where  the  amount  due  is  less  than  $500, 
is  provided  for  by  act  of  May  27,  1908  (35 
Stat.,  373). 

Disposition  of  pensions  and  other  moneys  due 
deceased  beneficiaries  of  Naval  Home  is 
provided  for  by  act  of  June  30,  1914  (38 
Stat.,  398). 

Payment  of  pension  money  in  case  of  death  of 
pensioners  in  Government  Hospital  for  the 


Insane  is  provided  for  by  section  4839. 
Revised  Statutes,  as  amended  by  act  of 
February  2,  1909  (35  Stat.,  592). 

Payment  in  case  of  death  of  persons  in  the 
Navy,  entitled  to  reimbursement  for 
losses  at  sea,  was  provided  for  by  section 
289,  Revised  Statutes,  repealed  by  act  of 
October  6,  1917  (40  Stat.,  390). 

Disposition  of  money  and  other  effects  of 
deceased  persons  in  the  naval  service  is 
regulated  by  act  of  March  29,  1918  (40 
Stat.,  499). 


Sec.  275.  [Signing  bounty  certificates.     Repealed.] 


This  section  provided  as  follows: 

"Sec.  275.  The  Second  Comptroller  may  de- 
tail one  clerk  to  sign,  in  the  place  of  the  Comp- 
troller, all  certificates  and  papers  issued  under 
any  provisions  of  law  relating  to  bounties;  but 


the  Comptroller  shall  be  responsible  for  the 
official  acts  of  such  clerk." — (19  Mar.,  1868,  c. 
31,  s.  4,  V.  15,  p.  44.) 

It  was  expressly  repealed  by  act  of  July 
31,  1894,  section  7  (28  Stat.,  206). 


264 


CHAPTER  FOUR. 


THE  AUDITORS. 

[For  Laws  in  Effect  March  4, 1921,  with  Reference  to  the  Powers  and  Duties  of  the  Comptroller  of  the 
Treasury  and  Auditor  for  the  Navy  Department,  See  Act  of  July  31, 1894  (28  Stat.,  205).  Section  9  of  Said 
Act  (28  Stat.,  208)  Provided  that  "This  Act,  in  so  far  as  it  Relates  to  the  First  Comptroller  of  the 
Treasury  and  the  Several  Auditors  and  Deputy  Auditors  of  the  Treasury,  shall  be  held  and  Construed 
TO  Operate  Merely  as  Changing  Their  Designation  and  as  Adding  to  and  Modifying  Their  Duties  and 
Powers,  and  not  as  Creating  New  Officers.  All  Laws  not  Inconsistent  with  this  Act,  Relating  to  the 
Auditors  of  the  Treasury  in  Connection  with  any  Matter,  shall  be  Understood  in  Each  Case  to  Relate 
TO  the  Auditor  to  Whom  this  Act  Assigns  the  Business  of  the  Executive  Department  or  Other  Estab- 
lishment Concerned  in  that  Matter."] 


Sec.  276.  [Auditors.]  There  shall  be  connected  with  the  Department  of 
the  Treasury  six  auditors  of  accounts,  who  shall  be  appointed  by  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate,  and  shall  be  known  as  the 
First,  Second,  Third,  Fourth,  Fifth,  and  Sixth  Auditors,  respectively.  Each 
Auditor  is  entitled  to  a  salary  of  four  thousand  dollars  a  year. — (2  Sept.,  1789, 
c.  12,  s.  1,  V.  1,  p.  65;  3  Mar.,  1817,  c.  45,  ss.  3,  15,  v.  3,  pp.  366,  368;  2  July, 
1836,  c.  270,  s.  8,  v.  5,  p.  81;  Ibid.,  s.  44,  p.  89;  8  June,  1872,  c.  335,  s.  21,  v. 
17,  p.  287;  2  Mar.,  1799,  c.  38,  s.  1,  v.  1,  p.  729;  3  Mar.,  1873,  c.  226,  s.  3,  v. 
17,  p.  508;  3  Mar.,  1875,  c.  130,  s.  2,  v.  18,  i^  397.) 


The  designation  of  the  Auditors  was  altered  by 
act  of  July  31, 1894,  section  3  (28  Stat.,  205), 

'Fourth  Au- 


which  changed  the  title  of 


ditor"  to  "Auditor  for  the  Navy  Depart- 
ment." 


Sec.  277.  [Duties  of  Auditors.]  The  duties  of  the  auditors  shall  be  as 
folio  w"s : 

******* 

Fifth.  The  Fourth  Auditor  shall  receive  and  examine  all  accounts  accruing 
in  the  Navy  Department  or  relative  thereto,  and  all  accounts  relating  to  Navy 
pensions;  and,  after  examination  of  such  accounts,  he  shaU  certify  the  balances, 
and  shall  transmit  such  accounts,  with  the  vouchers  and  certificate,  to  the 
Second  Comptroller  for  his  decision  thereon. 


* 


* 


The  duties  of  the  Auditor  for  the  Navy  Depart- 
ment, designated  in  the  above  section  as 
Fourth  Auditor,  are  prescribed  by  act  of 
July  31,  1894,  section  7  (28  Stat. ,  207).    The 


duties  of  the  Second  Comptroller  were 
transferred  to  the  Comptroller  of  the  Treas- 
ury by  section  4  of  the  same  act  (28  Stat., 
205). 


Sec.  283.  [Accounts  of  Departments  of  War  and  the  Navy.]  The  Auditors 
charged  with  the  examination  of  the  accounts  of  the  Departments  of  War  and  of 
the  Navy,  shall  keep  all  accounts  of  the  receipts  and  expenditures  of  the  public 
money  in  regard  to  those  Departments,  and  of  all  debts  due  to  the  United 
States  on  moneys  advanced  relative  to  those  Departments;  shall  receive  from 
the  Second  Comptroller  the  accounts  which  shall  have  been  finally  adjusted, 
and  shall  preserve  such  accounts,  with  their  vouchers  and  certificates,  and 
record  all  requisitions  drawn  by  the  Secretaries  of  those  Departments,  the 
examination  of  the  accounts  of  which  has  been  assigned  to  them.     They  shall 


265 


Sec.  285. 


Pt.  2.  REVISED  STATUTES. 


Treasury  Department. 


aimually,  on  the  first  Monday  in  November,  severally  report  to  the  Secretary  of 
the  Treasury  the  apphcation  of  the  money  appropriated  for  the  Department  of 
War  and  the  Department  of  the  Navy,  and  they  shall  make  such  reports  on 
the  business  assigned  to  them  as  the  Secretaries  of  those  Departments  may 
deem  necessary  and  require. — (3  Mar.,  1817,  c.  45,  ss.  5,  6,  v.  3,  p.  3G7.) 


in  the  Division  of  Bookkeeping  and  War" 
rants  of  the  Treasury  Department. 
The  office  of  Second  Comptroller  was  abolished 
and  his  duties  transferred  to  the  Comp- 
troller of  the  Treasury  by  section  4,  act  of 
July  31,  1894  (28  Stat.,  205). 


So  much  of  this  section  as  requii'es  accounts  to 
be  kept  by  certain  auditors  was  repealed 
by  act  of  July  31,  1894,  section  10  (28  Stat., 
208),  which  provides  that  all  accounts  of 
receipts  and  expenditures  of  public  money, 
except  those  relating  to  the  postal  revenues 
and  expenditures  therefrom,  shall  be  kept 

Sec.  284.  [Accounts  of  pay  officer  of  lost  vessel.]     In  every  case  of  the  loss 

or  capture  of  a  vessel  belonging  to  the  Navy  of  the  United  States,  the  proper 

accounting  officers  of  the  Treasury,  under  the  direction  of  the  Secretary  of  the 

Navy,  are  authorized,  in  the  settlement  of  the  accounts  of  the  [paymaster] 

[purser]  of  such  vessel,  to  credit  him  with  such  portion  of  the  amount  of  the 

provisions,  clothing,  small  stores,  and  money,  with  which  he  stands  charged 

on  the  books  of  the  Fourth  Auditor  of  the  Treasury,  as  they  shall  be  satisfied 

was  inevitably  lost  by  such  capture  or  loss  of  a  public  vessel ;  and  such  purser 

shall  be  fully  exonerated  by  such  credit  from  all  liability  on  account  of  the 

provisions,  clothing,  small  stores,  and  money  so  proved  to  have  been  captured 

or  lost.— (3  Mar.,  1847,  c.  48,  s.  6,  v.  9,  p.  173 ;  18  Feb.,  1875,  c.  80,  v.  18,  p.  317.) 


See  note  to  section  287,  Revised  Statutes. 

The  title  "Fourth  Auditor  of  the  Treasury" 
was  changed  to  "Auditor  for  the  Navy  De- 
partment" by  act  of  July  31,  1894,  section  3 
(28  Stat.,  205). 

By  the  Judicial  Code,  March  3,  1911 ,  sections 
145,  147  (36  Stat.,  1136, 1137),  it  is  provided 
that  the  Court  of  Claims  shall  have  juris- 
diction to  relieve  any  disbursing  officer  of 
responsibility  on  account  of  loss,  by  cap- 
ture or  otherwise  while  in  the  Line  of  his 
duty,  of  Government  funds,  vouchers, 
records  or  papers  in  his  charge,  where  such 
loss  occurred  without  fault  or  negligence  on 
the  part  of  the  officer,  but  he  has  been  held 


responsible  therefor.  ["Capture  or  other- 
wise "  means  not  only  loss  by  capture  and 
kindred  ways,  under  the  rule  of  ejusdem 
generis,  but  loss  occurring  in  any  other  way 
while  the  officer  was  in  line  of  duty  and 
free  from  fault.  (Stevens  v.  U.  S.,  41  Ct. 
Cls.,344.)] 
'In  case  of  fire  or  shipwreck,  it  shall  be  the 
special  duty  of  every  officer  of  the  Pay 
Cor])s  to  secure  and  preserve  the  accounts 
of  officers  and  men,  the  public  money,  and 
such  other  public  papers  and  property,  in 
the  order  of  their  value,  as  circumstances 
permit."  (Art.  R-3004  (1),  Navy  Regs., 
1913.) 


Sec.  285.  [Disbursements  by  order  of  commanding  officer.]  Every  disburse- 
ment of  public  moneys,  or  disposal  of  public  stores,  made  by  a  disbursing  officer 
pursuant  to  an  order  of  any  commanding  officer  of  the  Navy,  shall  be  allowed 
by  the  proper  accounting  officers  of  the  Treasury,  in  the  settlement  of  the 
accounts  of  the  officer,  upon  satisfactory  evidence  of  the  making  of  such  order, 
and  of  the  payment  of  money  or  disposal  of  stores  in  conformity  with  it;  and 
the  commanding  officer  by  whose  order  such  disbursement  or  disposal  was 
made,  shall  be  held  accountable  for  the  same. — (3  Mar.,  1849,  Res.  No.  17,  s. 
2,  V.  19,  p.  419.  [This  reference  is  in  error  in  the  Revised  Statutes.  Should 
be  ''v.  9,  p.  419."]) 


Order  of  Secretary  of  the  Navy. — An 
order  by  the  Secretary  of  the  Navy  to  an  officer 
has  been  held  to  be  within  this  section:  If 
money  is  disbursed  by  an  officer  of  the  N  avy  in 
faithful  compliance  with  the  Secretary's  order, 
under  this  law  the  Secretary  and  not  the  officer 
must  account  and  answer  to  the  United  States. 
(Opinion  of  Dunlop,  Cii'cuit  Judge,  in  U.  S.  v. 
Jones,  26  Fed.  Cas.  No.  15493a,  p.  653.)    [In this 


case,  on  appeal  to  the  Supreme  Court,  it  was  ar- 
gued by  the  Attorney  General  that  this  law 
applies  only  to  disbursements  made  "in  pur- 
suance of  an  order  from  an  officer  in  command." 
For  the  defendant,  it  was  argued  that  this  law 
"requires  the  disbursement  to  be  allowed  and 
the  commanding  officer  to  be  held  responsible. 
In  this  case  it  would  be  the  President."  The 
Supreme  Court  affirmed  the  judgment  of  the 


266 


Treasury  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  285. 


Circuit  Court,  which  was  for  the  defendant, 
without  referring  to  this  statute.  (U.  S.  v. 
Jones,  18  How.,  92.)  Accordingly,  the  case 
must  be  deemed  an  authority  for  the  proposi- 
tion that  the  order  of  the  Secretary  of  the  Navy 
was  the  order  of  defendant's  "commanding  offi- 
cer of  the  Navy  "  within  the  meaning  of  section 
285,  Revised  Statutes.  (File  26254-1451 :  11,  Apr. 
12,  1915,  citing  Swaim  v.  U.  S.,  165  U.  S.,  557; 
Op.  Atty.  Gen.,  May  19,  1915,  171  S.  and  A. 
Memo.,  3611.] 

Regulations  adopted  under  this  sec- 
tion.— This  section  does  not  authorize  an  ad- 
vance of  public  money  by  the  pay  officer  to  the 
commanding  officer  or  to  any  other  person  by 
his  order.  The  disbursement  presupposes  an 
indebtedness,  and  whether  the  objects  for  which 
the  indebtedness  accrued  were  sanctioned  or 
not  by  law  or  regulation,  the  pay  officer  would 
be  entitled  to  a  credit  for  payment  therefor, 
when  made  by  order  of  the  commanding  officer; 
but  the  disbursement  must  be  for  some  service 
or  article  furnished  in  accordance  with  law. 
(Art.  R-4310  (2),  Navy  Regs.,  1913.) 

When  ordered  by  his  commanding  officer  to 
make  an  expenditure  of  money  or  stores  which 
the  pay  officer  believes  to  be  illegal  or  contrary 
to  regulations,  the  latter  shall  state  in  writing 
the  grounds  on  which  he  objects  to  obejdng  the 
order,  and  request  that  the  order  be  reiterated 
in  writing.  On  receipt  of  such  order,  the  ex- 
penditure shall  be  made.  (Art.  R-4309,  Navy 
Regs.,  1913.) 

The  commanding  officer  will  be  held  account- 
able by  the  Navy  Department  for  every  expen- 
diture of  funds  or  property  made  by  his  author- 
ity; but  in  order  to  charge  a  commanding  offi- 
cer with  pecuniary  responsibility  for  a  payment 
made  by  his  order,  it  is  necessary  that  there 
should  be  a  compliance  with  the  preceding  par- 
agraph, for  in  the  absence  of  such  written  order 
from  the  commanding  officer,  after  a  statement 
of  objections  has  been  duly  made,  the  pay 
officer  and  not  the  commanding  officer  will  be 
held  responsible.  (Art.  R-4310  (3)  Navy  Regs., 
1913.) 

Regulations  must  be  complied  with. — In 
order  to  charge  a  commanding  officer  of  the 
Navy  with  a  payment  made  by  his  order  under 
this  section,  it  is  necessary  that  there  should 
be  a  compliance  with  the  Navy  regulation 
as  to  an  order  in  writing.  This  requirement 
is  eminentlv  proper  and  fair.  (8  Comp.  Dec, 
756;  1  S.  and  A.  Memo.,  June  1,  1902,  p.  28.) 

Neither  the  regulation  nor  the  Comptroller's 
ruling  alters  fundamentally  the  scope  of  this 
section.  The  regulation  relates  merely  to  the 
responsibility  of  the  commanding  officer,  and 
has  nothing  to  do  with  the  position  of  the  'pay- 
ing officer;  it  also  presupposes  a  belief  on  the 
part  of  the  latter  that  the  expenditure  is  illegal; 
it  does  not  apply  to  any  case  in  which  the  pay 
officer,  in  good  faith,  renders  his  obedience. 
(30  Op.  Attv.  Gen.,  376,  171  S.  and  A.  Memo., 
3611.) 

A  pay  officer  making  a  payment  assumes  re- 
sponsibility for  its  acciu'acy.  Therefore,  in 
withholding  payment  until  the  receipt  of  full 
information  necessary  to  a  correct  settlement, 
the  paymaster  is  doing  no  more  than  his  duty 
and  is  acting  strictly  within  his  authority.  If 
the  commanding:  officer  feels  satisfied  that  a 


payment  should  be  made  in  advance  of  the 
receipt  of  full  information,  he  is  at  liberty  to 
order  said  pay^ment,  assuming  the  responsi- 
bility therefor  in  accordance  with  section  285, 
Revised  Statutes.     (3  Comp.  Dec,  449.) 

Responsibility  of  pay  oflS.cer. — \ATienever 
Congress  has  desired  to  relieve  di.sbursing  offi- 
cers from  liability  for  payments  made  on  the 
authority  of  others,  it  has  had  no  difficulty  in 
finding  language  to  express  that  intent.  Ex- 
amples of  this  are  found  in  sections  285  and  846, 
Revised  Statutes;  act  of  March  3,  1879  (20 
Stat.,  419);  and  paragraph  6  of  section  8,  act  of 
July  31,  1894  (28  Stat.,  208).  Under  the  last- 
mentioned  act,  general  provision  has  been 
made  by  which  disbursing  officers  can  avoid 
responsibility  by  applying  to  the  Comptroller 
of  the  Treasury  for  an  advance  decision  in 
cases  where  they  may  have  doubts.  The 
enactment  of  the  special  provisions  above  men- 
tioned is  a  clear  indication  that  Congress  in- 
tended  that  the  general  rules  of  accounting 
should  apply  in  other  cases,  upon  the  well- 
known  rule  of  construction,  expressio  unius  est 
exclusio  alterixis  [the  expression  of  one  thing  is 
the  exclusion  of  another] .     (7  Comp .  Dec. ,  271 . ) 

The  party  to  whom  payment  has  not  been 
made  by  a  disbursing  officer  may  present  his 
demand,  or  claim,  to  such  disbursing  officer's 
superior,  who,  if  he  deems  the  claim  to  be  a 
just  one,  may  require  the  subordinate  to  make 
the  payment.  But  in  such  a  case,  the  pay 
officer  is  no  longer  responsible  financially;  the 
order  of  his  superior  has  relieved  him  from 
danger  of  checkage,  and  the  disallowance,  if 
any,  would  fall  upon  the  superior.  In  such 
cases  it  is  not  the  accounting  officers  who  have 
power  to  order  payment,  but  the  disbursing 
officer's  superior.  (File  26543—66,  Sept.  8, 
1911.) 

Congress  never  intended  that  a  Secretary  of 
War  should  order  a  jjaymaster  or  quartermaster 
to  make  a  payment,  and  then  upon  the  requisi- 
tion of  the  accounting  officers  of  the  Treasury, 
punish  the  officer  for  having  made  it  by  stop- 
ping his  pay.     (Smith  v.  U.  S.,  24  Ct.  Cls.,  215.) 

A  disbursing  officer  is  not  responsible  for 
illegal  payments  made  by  him  in  good  faith  and 
in  accordance  with  the  certificate  of  another 
officer  as  to  the  facts.  An  appropriation  being 
under  the  control  of  the  head  of  a  department 
it  is  within  the  latter's  power  to  prescribe  rules 
governing  the  disbursing  agent  m  making  dis- 
bursements therefrom.  (9  Comp.  Dec,  545;  see 
also,  Maj.  Smith's  case,  23  Ct.  Cls.,  452;  21 
Comp.  Dec,  314;  Comp.  Dec,  Nov.  21,  1914, 
file  26254-1672;  21  Comp.  Dec,  357,  file  26254- 
1451:5,  Oct.  31,  1914;  file  26254-1451:11,  Apr. 
12,  1915.  But  see  Comp.  Dec,  Mar.  26,  1914, 
App.  No.  23482,  file  26254-1451:2;  Comp.  Dec, 
Oct.  9,  1914,  App.  No.  23482,  file  26254-1451:12; 
21  Comp.  Dec  245,  reversed  21  Comp.  Dec, 
357.) 

A  Navy  regulation  (art.  R-3991,  1913)  re- 
quiring pay  officers  to  disburse  money  under 
certain  contingencies  is  an  order  of  the  Secre- 
tary of  the  Navy,  and  as  such  protects  the  pay 
officer  from  responsibility  and  is  conclusive 
upon  the  accounting  officers.  (30  Op.  Atty. 
Gen.,  376,  171  S  and  A.  Memo.,  3611,  revers- 
ing 21  Comp.  Dec,  554,  357,  245;  see  also  file 
26254-1451:11.) 


54641°— 22- 


18 


267 


Sec.  28'; 


Pt.  2.  REVISED  STATUTES. 


Treasury  Department. 


Sec.  286.  [Fixing  date  of  loss  of  missing  vessels.]  The  proper  accounting 
officers  of  the  Treasury  are  authorized,  under  the  direction  of  the  Secretary  of 
the  Navy,  in  settling  the  accounts  of  seamen,  and  others,  not  officers,  borne 
on  the  books  of  any  vessel  in  the  Navy  which  shall  have  been  wrecked,  or  which 
shall  have  been  unheard  from  so  long  that  her  Avreck  may  be  presumed,  or 
which  shall  have  been  destroyed  or  lost  with  the  rolls  and  papers  necessary  to 
a  regular  and  exact  settlement  of  such  accounts,  to  fix  a  day  when  such  wreck, 
destruction,  or  loss  shall  be  deemed  to  have  occurred. — (4  July,  1864,  c.  248, 
s.  1,  V.  13,  p.  389.) 

S.  and  A.  Memo.,  1352.)  In  the  same  case,  on 
January  20,  1911,  nothing  further  having  been 
heard  from  the  men  supposed  to  have  been 
drowned  by  the  capsizing  of  their  boat,  the 
Comptroller  held  that  "the  presumption  of  the 
existence  of  life  for  seven  years  after  a  person 
was  last  heard  from,  is  not  an  absolute  presump- 
tion, but  is  a  disputable  one,  and  is  subject  to 
be  controlled  by  facts  and  circumstances  and 
other  legitimate  evidence; "  that  so  long  a  time 
had  elapsed  that,  if  the  men  had  been  picked 
up  by  a  passing  vessel,  they  doubtless  would 
have  been  heard  from;  and  it  is  improbable 
that  they  all  agreed  to  desert.  Accordingly, 
held  that  the  men  in  question  were  drowned 
on  November  27,  1909,  and  payment  of  death 
gratuity  should  be  made.  (File  26254—399:1; 
see  also  17  Comp.  Dec,  528;  compare  Dig. 
Comp.  Dec.  (1902),  p.  144.) 

"  If  I  am  to  draw  a  conclusion  at  all,  I 
should  infer  that  a  person  in  the  position  of  a 
sergeant  [U.  S.  Marine  Corps]  having  nothing 
against  his  character  would  not  desert,  and 
that  he  died  while  on  leave,  and  so  was  not 
heard  of  by  the  authorities."  (In  re  Phone's 
Trusts,  L.  R.  5  ch.  139;  Thayer's  Cases  on 
Evidence,  57.) 

"Vessel"  defined. — See  section  3,  Revised 
Statutes. 


The  Secretary  of  the  Navy  issued  orders 

on  March  15,  l!>iO,  daclaring  the  U.  S.  S.  Nina 
to  have  been  lost,  and  that  the  commanding 
officer  and  enlisted  men  attached  to  said  vessel 
"will  be  regarded  as  having  died  on  this  date." 
(File  7054—136.) 

Jurisdiction  of  accounting  officers. — 
Under  this  section,  the  determination  by  the 
Secretary  of  the  Navy  of  the  day  when  the 
wreck,  destruction,  or  loss  shall  be  deemed  to 
have  occurred  is  binding  upon  the  accounting 
officers  of  the  Treasury  in  settling  the  accounts 
of  seamen  and  others,  not  officers,  borne  on 
the  books  of  the  vessel.  (32  Op.  Atty.  Gen., 
427,  file  26254—3048:2;  contra,  26  Comp.  Dec, 
336.) 

All  presumptions  of  death,  other  than 
the  legal  presumption  of  death  after  seven 
years'  unexplained  absence,  should  be  dis- 
regarded unless  the  evidence  leaves  no  con- 
clusion reasonable  other  than  that,  under  the 
known  facts,  death  must  have  residted.  A\Tiere 
it  is  possible  that  the  men  may  have  been 
picked  up  by  a  sailing  vessel,  payment  of  death 
gratuity  under  the  act  of  May  13, 1908  (35  Stat., 
128),  should  not  be  made  to  the  designated 
beneficiaries  of  such  men  until  further  time  has 
elapsed  without  their  being  heard  from. 
(Comp.  Dec,  Mar.  15, 1910,  file  26254—399,  109 


Sec.  287.  [Accounts  of  seamen  on  lost  vessel.]  The  proper  accounting 
officers  of  the  Treasury  are  authorized,  in  settling  the  accounts  of  the  petty 
officers,  seamen,  and  others,  not  officers,  on  board  of  any  vessel  in  the  employ 
of  the  United  States,  which  by  any  casualty,  or  in  action  with  the  enemy,  has 
been  or  may  be  sunk  or  otherwise  destroyed,  together  with  the  rolls  and  papers 
necessary  to  the  exact  ascertainment  of  the  several  accounts  of  the  same  at 
the  date  of  such  loss,  to  assume  the  last  quarterly  return  of  the  paymaster  of 
any  such  vessel  as  the  basis  for  the  computation  of  the  subsequent  credits  to 
those  on  board,  to  the  date  of  such  loss,  if  there  be  no  official  evidence  to  the 
contrary.  Where  such  quarterly  return  has,  from  any  cause,  not  been  made, 
the  accounting  officers  are  authorized  to  adjust  and  settle  such  accounts  on 
principles  of  equity  and  justice. — (4  July,  1864,  c.  948,  s.  2,  v,  13,  p.  390.) 


See  note  to  section  284,  Revised  Statutes. 

The  Navy  Regulations,  1913,  contain 
the  following  article: 

"2042.  (1)  In  case  of  the  loss  of  the  ship,  her 
commanding  officer  shall  remain  by  her  with 
officers  and  crew  as  long  as  necessary  and  save 
as  much  Government  property  as  possible. 
Every  reasonable  effort  shall  be  made  to  save 
the  log  book,  muster  roll,  accounts  of  officers 
and  crew,  and  other  valuable  papers. 


"  (2)  If  it  becomes  necessary  to  abandon  the 
ship,  ho  should  be  the  last  person  to  leave  her. 

"  (3)  He  shall  make  a  report  of  the  circum- 
stances to  the  Secretary  of  the  Navy  as  soon  as 
possible  and,  if  wrecked  within  the  United 
States,  shall  repair  to  the  nearest  naval  station 
with  the  crew  of  the  ship. 

"(4)  He  shall,  if  in  a  foreign  country,  lose 
no  time,  after  making  all  efforts  to  save  prop- 
erty, in  returning  with  the  officers  and  crew  to 


268 


Treasury  Department. 


Ft.  2.  RE  VISED  STAT  UTES. 


Sec.  290. 


tlie  fleet  or  squadron  to  which,  they  belong  or, 
if  acting  singly,  to  the  United  States.  He  shall 
take  steps  for  the  preservation  of  the  Govern- 
ment property  saved,  until  it  shall  be  disposed 
of  in  such  manner  as  the  department  may  direct. 

"(5)  In  the  event  of  the  loss  of  accounts  of 
any  person  in  the  Navy,  caused  by  wreck  or 
otherwise,  he  shall  proceed  in  accordance  with 
article  1^924." 

The  foUo-wing  article  is  frora  Naval  In- 
structions, 1913: 

"4924.  In  the  event  of  the  loss  of  accounts 
occurring  from  the  loss  or  capture  of  a  ship  of  the 


Navy,  the  pay  officer,  on  receiving  a  written 
order  from  the  conamanding  officer,  shall  open 
other  accounts  with  the  survivors,  from  the  date 
of  the  disaster,  giving  to  each  person  the  rating 
he  held  at  the  time  the  accounts  were  lost;  and 
the  accounts  so  made  out  shall  accompany  the 
survivors  on  their  transfer  to  a  ship  or  station, 
the  pay  officer  of  which  is  to  govern  himself  by 
these  accounts  in  making  payments  or  issues, 
until  he  receives  further  instructions  from  the 
Na\^  Department  or  the  Auditor  for  the  Navy 
Department." 


Sec.  288.  [Compensation  for  personal  effects  lost.     Repealed.] 


This  section  provided  as  follows: 

"The  proper  accounting  officers  of  the  Treas- 
ury Department  are  authorized,  in  settling  the 
accounts  of  the  petty  officers,  seamen,  and 
others,  not  officers,  on  board  of  any  vessel  in 
the  employ  of  the  United  States,  which,  by 
any  casualty,  or  in  action  with  the  enemy,  has 
been  or  may  be  sunk  or  otherwise  destroyed, 
to  allow  and  pay  to  each  person,  not  an  officer, 
employed  on  the  vessel  so  sunk  or  destroyed, 
and  whose  personal  effects  have  been  lost,  a 
sum  not  exceeding  sixty  dollars,  as  compensa- 
tion for  the  loss  of  his  personal  effects." — (4 
July,  1864,  c.  248,  s.  2,  v.  13,  p.  390.) 


It  was  repealed  by  act  of  October  6,  1917 

(40  Stat.,  390). 

See  note  to  section  290,  Revised  Statutes. 

A  permanent  annual  appropriation  is  matle 
by  section  3689,  Revised  Statutes,  for  "indem- 
nity to  seamen  and  marines  for  lost  clothing: 
To  allow  and  pay  to  each  person,  not  an  officer, 
employed  on  a  vessel  of  the  United  States  sunk 
or  otherwise  destroyed,  and  whose  personal 
effects  have  been  lost,  a  sum  not  exceeding  $60. 
In  the  event  of  the  death  of  the  person,  this 
sum  is  to  be  paid  to  his  proper  legal  representa- 
tives." 


Sec.  289.  [Payment  in  case  of  death.     Repealed.] 


This  section  provided  as  follows: 

"  In  case  of  the  death  of  any  such  petty  offi- 
cer, seaman,  or  other  person,  not  an  officer, 
stich  payment  shall  be  made  to  the  widow, 
child  or  children,  father,  mother,  or  brothers 
and  sisters  jointly,  following  that  order  of  pref- 
erence; such  credits  and  gratuity  to  be  paid . 
out  of  any  money  in  the  Treasury  not  otherwise 
appropriated."— (4  July,  1864,  c.  248,  s.  3,  v. 
13,  p.  390.) 

It  was  repealed  by  act  of  October  6,  1917 
(40  Stat.,  390). 

See  notes  to  sections  286, 288,  and  290,  Re- 
vised Statutes. 

The  manner  of  settling  accounts  of  deceased 
officers  and  enlisted  men  in  the  Na\'y  and  Ma- 
rine Corps,  where  the  amotmt  due  is  less  than 


$500,  is  provided  for  by  act  of  May  27, 1908  (35 
Stat.,  373). 

Payment  of  arrears  due  deceased  enUsted 
men  was  pro^dded  for  by  section  274,  Revised 
Statutes. 

Payment  of  pension  money  in  case  of  death 
of  pensioners  in  Government  Hospital  for  the 
Insane  is  pro\dded  for  by  section  4839,  Revised 
Statutes,  as  amended  by  act  of  February  2, 
1909  (35  Stat.,  592). 

Disposition  of  pensions  and  other  moneys  due 
deceased  beneficiaries  of  Naval  Home  is  pro- 
vided for  by  act  of  June  30, 1914  (38  Stat.,  398). 

Disposition  of  money  and  effects  of  deceased 
persons  in  the  naval  service  is  regulated  by  act 
of  March  29,  1918  (40  Stat.,  499).  See  also  16 
Op.  Atty.  Gen.,  494. 


Sec.  290.  [Allowance  to  officers  for  personal  effects  lost.     Repealed.] 


This  section  provided  as  follows: 
"  In  case  any  officer  of  the  Navy  or  Marine 
Corps  on  board  a  vessel  in  the  employ  of  the 
United  States  which,  by  any  casualty,  or  in 
action  with  the  enemy,  at  any  time  since 
the  nineteenth  day  of  April,  eighteen. hundred 
and  sixty-one,  has  been  or  may  be  sunk  or  de- 
stroyed, shall  thereby  have  lost  his  personal 
effects,  without  negligence  or  want  of  skill  or 
foresight  on  his  part,  the  proper  accotmting 
officers  are  authorized,  with  the  approval  of  the 
Secretary  of  the  Navy,  to  allow  to  stich  officer 
a  sum  not  exceeding  the  amount  of  his  sea- 
pay  for  one  month  as  compensation  for  such  loss. 
But  the  accounting  officers  shall  in  all  cases 
require  a  schedule  and  certificate  from  the 
officer  making  the  claim  for  effects  so  lost." — 
(6  April,  1866,  c.  27,  s.  1,  v.  14,  p.  14.) 


It  was  repealed  by  act  of  October  6,  1917 
(40  Stat.,  390),  which  contained  new  and  com- 
plete provisions  on  the  subject. 

Losses  in  time  of  peace. — By  act  of  March 
2,  1895  (28  Stat.  962),  provision  was  made  for 
adjustment  of  losses  of  officers  and  men  in  the 
naval  service,  in  time  of  peace,  due  to  ship- 
wreck or  other  marine  disaster,  limiting  reim- 
bursement to  such  articles  of  personal  property 
as  are  required  by  the  Navy  Regulations,  and 
reqidring  all  claims  to  be  submitted  within 
two  years  from  the  occurrence  of  the  loss;  and 
stipidating  that  reimbursement  shall  be  based 
on  value  of  articles  at  the  time  of  loss.  Under 
this  act  it  was  made  the  duty  of  the  accounting 
officers  of  the  Treasur\^  to  determine  the  value 
of  the  property  so  lost,' and  the  Secretary  of  the 
Treasur>'  was  required  to  certify  all  such  losses 


269 


Sec.  290. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


to  tlie  Speaker  of  the  House  of  Representatives 
at  tlie  commencemeut  of  each  res^ular  session, 
who  should  lay  same  before  Congress  for  con- 
sideration. 

This  act  was  repealed  and  new  provisions 
subtil ituted  therefor  by  act  of  October  6,  1917 
(40  Stat.,  390). 

Destruction  of  TJ.  S.  S.  "Maine."— By 
act  iMarch  30,  1898  (30  Stat.  340),  provision 
was  made  for  relief  of  sufferers  by  the  destruc- 
tion of  the  U.  S.  S.  Maine,  as  follows: 

"That  to  reimburse  the  survivors  of  the  offi- 
cers and  crew  of  the  United  States  steamer 
Maine,  destroyed  by  an  explosion  in  the  harbor 
of  Havana,  Ciiba,  on  the  fifteenth  day  of  Feb- 
ruary-, eighteen  hundred  and  ninety-eight,  for 
losses  incurred  by  them,  respectively,  in  the 
destruction  of  said  A'essel,  there  shall  be  paid 
to  each  of  said  survdvors,  out  of  any  money  in 
the  Trerusur^'  of  the  United  States  not  other- 
wise appropriated,  a  sum  equal  to  the  losses  so 
sustained  by  them:  Provided,  That  the  account- 
ing officers  of  the  Treasury  shall  in  all  cases 
require  a  schedule  and  affidavit  from  each  per- 
son making  a  claim  iinder  tliis  act,  such  sched- 
ule to  be  approved  by  the  Secretary  of  the 
Na^-J';  and  reimbursement  shall  be  made  for 
such  articles  of  clothing,  outfit,  and  for  such 
personal  effects  only  as  are  of  a  character  and 
value  and  in  quantity  suitable  and  appropriate 
to  the  rank  or  rating  and  duty  of  the  person  by 
whom  the  claim  is  made:  Provided  further,  That 
in  no  case  shall  the  aggregate  sum  allowed  for 
siich  losses  exceed  the  amoimt  of  twelve 
montlis'  sea  pay  (\vithout  rations)  of  the  grade 
or  rating  held  by  such  person  at  the  time  the 
losses  were  incurred. 

"Sec.  2.  That  the  widow,  child,  or  children, 
and  in  case  there  be  not  such,  that  the  parent 
or  parents,  and  if  there  be  no  parent,  the 
brothers  and  sisters,  of  the  officers,  enlisted 
men,  and  others  who  were  lost  in  the  destriic- 
tion  of  said  vessel,  or  who  have  died  or  who 
may  die  ^vithin  one  year  from  date  of  the  dis- 
aster in  consequence  of  injuries  received  in 
the  destruction  of  said  vessel,  shall  be  entitled 
to  and  shall  receive,  out  of  any  money  in  the 
Treasury  of  the  United  States  not  otherwise 
appropriated,  to  wit:  The  relative,  in  the  order 
named,  of  the  persons  heretofore  referred  to,  a 
sum  equal  to  tweh'e  months'  sea  pay  of  the 
grade  or  rating  of  each  person  deceased  as  afore- 
said: Provided,  That  the  legal  representatives 
of  the  deceased  persons  hereinbefore  referred 
to  shall  also  be  paid  from  the  Treasury  of  the 
United  States  any  arrears  of  pay  due  the  de- 
ceased at  the  time  of  their  death:  Provided 
further,  That  if  any  person  who  shall  receive 
reimbursement  under  tliis  act,  for  losses  in- 
curred in  said  disaster,  shall  die  witliin  the 
year  in  consequence  of  injuries  incurred  in  the 
destruction  of  said  vessel,  the  amount  so  paid 
shall  be  deducted  from  the  amount  of  twelve 
months'  sea  pay  (without  rations)  allowed  to 
such  beneficiary^  by  virtue  of  this  act  of  relief. 

"Sec.  3.  That  the  accoimting  officers  of  the 
Treasury  be,  and  they  are  hereby,  authorized 
to  continue  for  a  period  of  three  months  any 
allotments  which  may  have  been  made  in 
favor  of  any  relatives  of  the  degrees  herein- 
before enumerated  by  any  of  the  officers  and 
men  attached  to  the  United  States  ship  Maine 


who  lost  their  lives  in  or  in  consequence  of 
the  disaster  to  that  vessel:  Provided,  That  the 
amount  of  the  allotments  so  continued  shall  be 
deducted  from  the  amount  of  twelve  months' 
sea  pay  allowed  to  such  beneficiaries  by  virtue 
of  this  act  for  their  relief. 

"Sec.  4.  That  the  relief  granted  by  the  ^provi- 
sions of  tliis  act  shall  be  in  full  satisfaction  of 
any  and  all  claims  whatever  against  the  United 
States  on  account  of  losses  or  death  by  the 
destruction  of  the  United  States  steamer  Maine, 
and  any  claim  against  the  United  States  wliich 
shall  be  presented  and  acted  upon  under  the 
authority  of  this  act  shall  be  held  to  be  finally 
determined  and  shall  not  in  any  manner  there- 
after be  reopened,  reconsidered,  supplemented 
nor  be  subject  to  appeal  in  any  form;  and  the 
method  of  presenting  and  establishing  said 
claims  hereinbefore  presented  shall  be  followed 
in  lieu  of  those  prescribed  by  acta  or  parts  of 
acts  heretofore  enacted  relating  to  the  presenta- 
tion and  allowance  of  similar  claims:  Provided, 
That  nothing  herein  shall  affect  the  right  of  any 
of  the  beneficiaries  under  this  act  to  any  pen- 
sion to  which  they  may  be  entitled  under  exist- 
ing law  after  the  expiration  of  one  year  from 
said  fifteenth  day  of  Februarj',  eighteen  hun- 
dred and  ninety-eight. 

"Sec.  5.  That  no  claims  shall  be  allowed 
under  the  pro^-isions  of  this  act  wliich  shall  not 
be  presented  within  two  years  after  the  date  of 
its  passage. 

"Sec  6.  That  the  Secretary' of  the  Na^n,' be, 
and  he  is  hereby,  authorized,  whenever  in  his 
discretion  it  may  be  deemed  practicable  and 
expedient,  to  cause  the  remains  of  all  or  any 
of  those  who  perished  in  consequence  of  said 
disaster  to  be  removed  to  the  United  States 
cemetery  at  Arlington:  Provided,  That  the 
relatives  of  any  of  such  deceased  officers  and 
others  mentioned  in  this  act  who  prefer  that  the 
remains  of  such  be  taken  to  their  homes  witlun 
the  United  States  shall  have  such  privilege 
extended  to  them,  and  the  expense  thereof 
shall  be  borne  by  the  United  States;  and  the 
sum  of  ten  thousand  dollars,  or  so  much  thereof 
as  may  be  necessary,  is  hereby  appropriated, 
out  of  any  money  in  the  Treasury  not  othermse 
appropriated,  to  carrj'  out  the  provisions  of  this 
section . ' ' 

Fires  at  Washington  Navy  Yard. — The 
naval  apj)ropr'ation  act,  JNIay  4,  1898  (30  Stat., 
388),  contained  the  follo"ning  clause: 

' '  To  reimburse  the  enlisted  men  of  the  United 
States  Marine  Corps  who  incurred  loss  of  cloth- 
ing by  the  fires  which  occurred  at  the  naAn,'- 
yard,  Washington,  District  of  Columbia,  on  the 
twenty-second  and  twenty-ninth  days  of  April, 
eighteen  hundred  and  ninety-seven,  fifty-one 
dollars  and  seventy-three  cents:  Provided, 
That  the  accounting  officers  of  the  Treasury^ 
shall  in  all  cases  require  a  schedule  and  certifi- 
cate from  each  person  making  a  claim  under 
this  act." 

Wreck  of  TJ.  S.  S.  "Charleston."— Bv  act 
of  February  7,  1903  (32  Stat.,  804),  provision 
was  made  for  reimbursement  of  losses  sus- 
tained in  the  wreck  of  the  U.  S.  S.  Charleston,  as 
follows: 

' '  That  to  reimburse  the  officers  and  crew  of  the 
United  States  steamship  Charleston,  destroyed 
on  a  coral  reef  off  Camiguin  Island,  in  the  Phil- 


270 


Treasury  Department. 


Ft.  2.  REVISED  STATUTES. 


Sec.  290. 


ippiues,  November  second,  eighteen  hundred 
and  ninety-nine,  for  losses  incurred  by  them, 
respectively,  in  the  destruction  of  said  vessel, 
there  shall  be  paid  to  each  of  said  officers  and 
crew  or  to  the  personal  representatives  of  any 
which  may  be  deceased,  out  of  any  money  in 
the  Treasury  of  the  United  States  not  other- 
wise appropriated,  a  sum  equal  to  the  losses  so 
sustained  by  them:  Provided,  That  the  ac- 
counting officers  of  the  Treasury  shall  in  all 
cases  reqaii-e  a  schedule  and  certificate  from 
each  person  making  a  claim  under  this  act, 
such  schedule  to  be  approved  by  the  Secretary 
of  the  Navy,  who  may  require  other  satisfac- 
tory proof  of  said  losses,  and  reimbursements 
shall  be  made  for  such  losses  as  are  of  a  char- 
acter and  value  suitable  and  appropriate  to  the 
rank,  rating,  or  duty  of  the  person  suffering 
such  loss:  Provided,  however,  That  in  no  case 
shall  the  aggregate  sum  allowed  any  claimant 
or  person  for  such  loss  exceed  the  value  of  such 
articles  of  personal  i)roperty  as  were  required 
by  the  United  States  Naval  Regulations  in 
force  at  the  time  of  such  loss,  and  there  shall  be 
deducted  therefrom  any  sum  heretofore  paid 
any  of  them  under  section  two  hundred  and 
ninety  of  the  Revised  Statutes. 

"Sec.  2.  That  the  relief  granted  by  the  pro- 
visions of  this  act  siiall  be  in  full  satisfaction 
of  any  and  all  claims  wiiatever  against  the 
United  States  on  account  of  losses  by  the 
destruction  of  the  United  States  steamship 
Charleston,  and  any  claim  which  shall  be 
presented  and  acted  upon  \inder  the  authority 
of  this  act  shall  be  held  to  be  finally  deter- 
mined, and  shall  not  in  any  manner  thereafter 
be  reopened,  reconsidered,  supplemented,  nor 
be  subject  to  ajjpeal  in  any  form. 

"  Sec.  3.  That  no  claim  for  losses  by  reason  of 
the  destruction  of  said  vessel  not  heretofore 
presented  shall  be  allowed  under  the  provisions 
of  this  act  which  shall  not  be  presented  within 
two  years  after  the  date  of  its  passage. 

"Sec.  4.  That  any  amounts  that  have  been 
paid  under  sections  two  hundred  and  eighty- 
eight,  two  hundred  and  eighty-nine,  and  two 
hundred  and  ninety  of  the  Revised  Statutes 
shall  be  deducted  in  the  settlement  of  all 
claims  under  this  act." 

San  Francisco  fire. — The  naval  appropria- 
tion act  of  June  29,  1906  (34  Stat.,  554),  con- 
tained the  following: 

"To  reimburse  officers  and  enlisted  men  of 
the  Navy  and  Marine  Corps  who  were  on  duty 
under  orders  in  San  Francisco  during  the  recent 
fire  in  that  city  for  losses  of  clothing  and  other 
personal  effects  sustained  by  them  tlirough 
said  fire,  seven  thousand  dollars,  or  so  much 
thereof  as  may  be  necessary:  Provided,  That 
such  reimbursement  shall  be  made  under  regu- 
lations to  be  prescribed  by  the  Secretary  of  the 
Navy  and  ui)on  vouchers  to  be  approved  by 
him  in  each  case." 

Efifects  destroyed  to  prevent  spread  of 
disease, — The  Naval  Instructions,  1913,  con- 
tain the  following  provisions: 

"4750.  Cl)  Should  it  become  necessary  to 
destroy  clotliing  or  other  personal  effects  of 
officers  or  men  to  prevent  the  spread  of  disease, 
the  commandant  of  the  station  or  commanding 
officer  of  the  ship  shall  direct  a  survey  to  be 
held  on  the  articles,  and  the  report,  containing 


a  list  of  the  articles,  with  an  estimate  of  tlieir 
value,  approved  by  him,  shall  be  transmitted 
to  the  Navy  Department.  The  surveying 
officer  shall  base  Ms  estimate  on  the  actual 
value  of  the  articles  destroyed  and  not  on  the 
original  cost  of  the  arti(des. 

"  (2)  No  issue  shall  be  made  to  persons  in  lieu 
of  their  effects  so  destroyed.  They  can  only 
be  reimbursed  for  such  loss  by  certificate  from 
the  Treasury  Department  after  the  approval  of 
the  report  of  survey  by  the  Secretary  of  the 
Navy." 

The  annual  deficiency  appropriation  acts 
contain  appropriations  under  "Claims  allowed 
by  the  Auditor  for  the  Navy  Department," 
for  payment  of  claims  "for  destruction  of 
clothing  and  bedding  for  sanitary  reasons," 
cei'tified  to  Congress  under  section  2,  act  of 
July  7,  1884  (23  Stat.,  254),  which  reads  in  part 
as  follows: 

"That  the  Secretary  of  the  Treasury  shall, 
at  the  commencement  of  eac;h  session  of  Con- 
gress, report  the  amount  due  each  claimant 
whose  claim  has  been  allowed  in  whole  or  in 
part  to  the  Speaker  of  the  House  of  Repre- 
sentatives and  the  presiding  officer  of  the  Sen- 
ate, who  shall  lay  tlie  same  before  their  respec- 
tive Houses  for  consideration. " 

In  the  Army  the  Secretary  of  War  is  author- 
ized to  order  gratuitous  issues  of  clothing  to 
soldiers  who  have  had  contagious  diseases,  and 
to  hospital  attendants  who  have  niu-sed  them, 
to  replace  any  articles  of  their  clothing  de- 
stroyed by  order  of  the  proper  medical  officers 
to  prevent  contagion.  (Sec.  1298,  R.  S.;  4 
Comp.  Dec,  26;  see  also  act  June  30,  1902,  32 
Stat.,  517. )_ 

Where  private  property  is  destroyed  by  the 
Government  for  its  own  benefit,  with  the  assent 
of  the  o^vner,  a  contract  is  implied  to  make 
compensation  for  its  value.  (7  Comp.  Dec, 
767.) 

Payment  of  the  value  of  a  house  belonging  to 
an  Indian  and  located  on  an  Indian  reserva- 
tion, which  was  destroyed  by  officers  of 
the  Government  to  prevent  the  spread  of  dis- 
ease, may  be  made  from  an  appropriation  pro- 
viding for  the  support  and  civilization  of 
Indians.     (12  MSS.  Comp.  Dec,  1098.) 

Reimbursement  for  articles  of  clothing  be- 
longing to  Government  employees,  destroyed 
to  prevent  the  spread  of  smallpox,  may  fairly 
be  considered  as  coming  within  the  scope  of 
medical  attendance  to  which  such  employees 
were  entitled.  (12  MSS.,  Comp.  Dec.  462.  See 
Comp.  Dig.,  p.  610.) 

New  statutory  provisions  superseding 
prior  laws  and  providing  generally  for  the 
reimbursement  of  persons  in  the  naval  service 
for  property  lost  or  destroyed  in  such  service, 
are  contained  in  the  act  of  October  6,  1917  (40 
Stat.,  389.) 

CLAIMS    FOR   REIMBURSEMENT. 

Jurisdiction  was  not  conferred  upon  the 
Court  of  Claims  by  the  act  of  March  2,  1895, 
and  suit  for  such  losses  was  not  authorized 
under  that  act.  (Harllee  v.  U.  S.,  51  Ct.  Cls., 
342;  see  also  U.  S.  r.  Babcock,  250  U.  S.,  328). 

Marine  Corps. — Officers  and  enlisted  men 
of  the  Marine  Corps  are  not  entitled  to  reim- 


271 


Sec.  290. 


Ft.  2.  REVISED  STATUTES. 


Treasury  Department. 


barsement  for  loss  of  personal  effects  in  accord- 
ance with  laws  relating  to  the  Army;  but  are 
entitknl  to  such  reimbursement  under  the  same 
circumstances  as  if  they  were  in  the  Navy 
proper.  (3  Comp.  Doc,  G59;  Ilarllee  v.  U.  S., 
51  Ct.  Cls.,  342;  compare  4  Comp.  Dec,  26.) 

Not  a  gratuity. ^The  amount  to  which  an 
officer  or  enlisted  man  is  entitled  under  the  law 
for  private  property  lost  or  destroyed  is  by  way 
of  reimbursement,  and  is  not  a  gratuity;  and 
accordingly,  where  an  officer  died  before  re- 
ceiving the  amount  due  him  for  private  prop- 
erty lost  by  the  wreck  of  a  vessel,  held  that  such 
amount  may  be  paid  to  the  legal  representati  v^es 
of  the  deceased  officer  or  to  the  persons  entitled 
to  take  his  personal  propertv  upon  his  decease. 
(8  Comp.  Dec,  688.)     [See  note  to  section  289.] 

Losses  in  time  of  war. — The  act  of  March 
2,  1895  (28  Stat.,  962),  above  noted,  which  pro- 
vided for  reimbursement  for  private  property 
belonging  to  officer?  or  enlisted  men  of  the 
Navy,  lost  or  destroyed  by  shipwreck  or  other 
marine  disasster,  and  which  further  provided 
' '  that  this  act  sliall  Jiot  apply  to  losses  sxistained 
in  time  of  war,"  was  not  applicable  to  private 
property  lost  on  the  U.  S.  S.  Charleston  while 
operating  with  the  land  forces  of  the  United 
States  in  the  suppression  of  the  local  insurrection 
in  the  Philippine  Islands  on  November  2,  1899. 
WTiile  the  United  States  was  not  at  war  with 
any  recognized  power,  nevertheless,  held,  for 
the  purpose  of  this  act  (Mar.  2,  1895),  a  state  of 
war  existed  as  to  all  the  military  forces  of  the 
United  States  directly  engaged  in  the  suppres- 
sion of  said  insurrection.  However,  in  such 
cases  reimbursement  was  allowed  under  sec- 
tions 288-290,  Revised  Statutes.  (7  Comp. 
Dec,  345;  see  also,  9  Comp.  Dec,  527.)  [Spe- 
cial provision  was  subsequently  made  by  Con- 
gress for  the  relief  of  officers  and  crew  of  the 
Charleston,  as  shown  by  act  above  quoted.] 

Prior  laws  enlarged  by  act  of  March  2, 
1895.— Sections  288-290  provided  for  certain 
limited  payments  to  officers  and  men,  only 
when  they  were  "on  board  a  vessel  in  the  em- 
ploy of  the  United  States."  Under  the  act  of 
March  2,  1895,  payment  was  authorized  in  any 
case  where  the  property  was  lost  in  the  naval 
service  by  shipwreck  or  marine  disaster,  without 
regard  to  the  character  of  the  vessel  the  goods 
were  on  at  the  time  of  the  loss.  The  claimant, 
however,  was  required  to  show  that  such  loss 
was  without  fault  or  negligence  on  his  part, 
unless  the  property  was  shipped  in  an  unsea- 
Avorthy  vessel  by  order  of  an  officer  autliorized 
to  give  such  order,  in  which  case  such  proof 
was  not  required.     (2  Comp,  Dec,  30.) 

The  act  of  March  2,  1895,  was  intended  to  be 
an  enlargement  of  previous  laws  providing  for 
the  reimbursement  of  officers  and  seamen  for 
property  lost  or  destroyed  in  the  naval  service, 
and  therefore  was  to  be  liberally  construed.  It 
appeared  from  this  act  that  sections  288-290, 
Revised  Statutes,  were  directly  under  the  con- 
sideration of  Congress  at  the  time  of  its  enact- 
ment.    (2  Comp.  Dec,  30;  1  Comp.  Dec,  441.) 

The  act  of  March  2, 1895,  authorized  payment 
in  the  case  of  petty  officers  and  seamen  who 
died  prior  to  the  passage  of  the  said  act.  It  has 
several  times  been  held  that  acts  making  pro- 
vision for  the  payment  of  additional  compensa- 
tion or  bounty  are  personal  and  for  the  benefit 


only  of  those  living  at  the  time  the  act  takes 
effect,  unless  something  therein  clearly  indi- 
cates tluit  the  intention  of  Congress  was  that 
others  should  receive  the  beneiit  of  the  pro- 
vision. As  section  289,  Revised  Statutes,  pro- 
vided for  payment  in  the  cases  of  persons,  other 
than  officers,  who  had  tlied,  and  as  the  act  of 
March  2,  1895,  required  any  payment  under 
section  289  to  be  deducted  from  the  amount  to 
to  be  paid  under  tlie  provisions  of  said  act,  an 
intention  upon  the  part  of  Congress  to  make  the 
act  apply  to  patty  officers,  seamen,  and  others 
in  the  naval  service,  not  officers,  who  were 
already  dead  when  the  act  was  passed,  seems 
clear.  Wliether  the  act  also  applied  to  the 
cases  of  officers  wlio  had  died  before  that  date 
was  not  decided  in  this  case.  (1  Comp.  Dec, 
473.)  [As  to  officers  who  die  before  recei\'ing 
payment,  see  note  above,  "  Not  a  gratuity."] 

"Shipwreck  or  other  marine  disaster," 
within  the  meaning  of  the  act  of  March  2,  1895, 
was  intended  to  cover  shipwreck  or  marine  dis- 
aster to  the  ship  itself,  involving  a  total  or 
partial  destruction  or  casting  away  of  tlie  ship, 
and  not  suck  a  temporary  disaster  as  waves 
washing  over  the  sliip's  decks  or  like  misfortune 
necessarily  incident  to  sea  service.  (1  Comp. 
Dec.  441;  followed  Comp.  Dec,  Apr.  25,  1911, 
App.  No.  19972,  file  26254-692.) 

JURISDICTION,    ACCOUNTING    OFFICERS    AND 
SECRETARY  OP  THE   NAVY. 

See  note  to  section  236,  Revised  Statutes,  on 
general  subject  of  jurisdiction  of  account- 
ing officers  and  heads  of  executive  depart- 
ments. 

Secretary's  approval  not  conclusive. — 
In  settlements  under  section  290,  Revised 
Statutes,  it  was  never  regarded  that  the  sched- 
ule and  certificate  of  the  officer,  with  the  ap- 
proval of  the  Secretary,  were  conclusive  upon 
the  accounting  officers  or  relieved  them  from 
responsibility  of  making  further  investigations 
and  disallowing  any  portion  of  a  claim  which 
to  them  seemed  unwarranted  by  the  law  or 
the  facts.     (4  Comp.  Dec,  590.) 

Under  the  act  of  February  7,  1903,  for  reim- 
bursing the  officers  and  crew  of  the  U.  S.  S. 
Charleston,  an  officer  was  not  entitled  to  reim- 
bursement of  a  greater  amount  than  the  aggregate 
value  of  the  articles  of  personal  property  which 
were  required  by  the  naval  regulations  in  force 
at  the  time  of  the  loss,  even  though  his  claim  for 
a  greater  amount  had  been  approved  by  the 
Secretary  of  the  Navy.  (10  Comp.  Dec,  456; 
see  also  Little  v.  U.  S.,  41  Ct.  Cls.,  408.) 

See  act  of  October  6,  1917  (40  Stat.,  389),  and 
see  United  States  v.  Babcock  (250  U.  S.,  328). 

Secretary's  approval  limits  maximum 
amount  to  be  allowed. — Under  the  act  of 
March  30,  1898  (quoted  above),  providing  that 
' '  the  accounting  officers  of  the  Treasury  shall  in 
all  cases  require  a  schedule  and  affidavit  from 
each  person  making  a  claim  "  for  losses  incurred 
by  them  by  the  destruction  of  the  U.  S.  S. 
Maine,  "such  schedule  to  be  approved  by  the 
Secretary  of  the  Navy,"  the  approval  by  the 
Secretary  of  the  Navy  was  not  conclusive  upon 
the  accounting  officers.  The  reasonable  inter- 
pretation of  the  act  was  that  the  schedule  was 


272 


Treasury  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  290, 


required  to  be  approved  by  the  Secretary  of  the 
Navy  as  a  safeguard  against  the  allowance  of 
unjust  and  exorbitant  claims,  arising  from  the 
fact  that  the  accounting  officers,  without  the  ad- 
vice and  approval  of  the  Navy  Department, 
were  not  in  a  position  to  judge  so  intelligently  as 
to  what  articles  are  suitable  and  appropriate  for 
an  officer  or  enlisted  man  of  the  rank  or  rating  and 
duty  of  the  claimant.  The  effect  was  to  put  a 
limitation  upon  the  jurisdiction  of  the  account- 
ing officers,  and  to  preclude  the  allowance  of 
anything  not  having  the  approval  of  the  Secre- 
tary of  the  Navy,  but  leaving  their  jm-isdiction 
unimpaired  as  to  items  and  amounts  approved 
by  him.  While,  therefore,  the  schedule  and 
affidavit  of  an  officer  making  claim  under  this 
act  (Mar.  30,  1898),  when  approved  by  the 
Secretary,  made  out  on  their  face  a  prima  facie 
claim  as  contemplated  by  the  act,  they  were  by 
no  means  conclusive  upon  the  accounting  offi- 
cers except  to  limit  their  jurisdiction  to  a  con- 
sideration of  items  and  amounts  so  presented. 
The  approval  of  the  Secretary  of  the  Na\'y  was 
required  by  the  law  before  the  claim  could  be 
considered  by  the  accounting  officers,  and  while 
the  Auditor  might  be  justified  in  allowing  a 
claim  upon  such  approval  of  the  Secretary  of  the 
Navy,  the  Auditor  was  not  concluded  thereby 
if  in  his  judgment  additional  proof  wasnecessary 
and  proper  to  a  fair  and  just  adjudication  of 
the  claim.  In  reaching  his  conclusions,  great 
weight  should,  of  course,  be  given  to  the  de- 
cision of  the  Secretary,  both  as  to  what  articles 
were  necessary  and  appropriate  for  the  rank  of 
the  claimant,  and  also  as  to  the  value  of  such 
articles.  But  within  the  limitations  imposed 
by  the  Secretary's  approval,  the  claim  should 
be  settled  in  the  same  manner  as  other  claims 
of  a  similar  nature.     (4  Comp.  Dec,  587.) 

[It  will  be  noted  that  the  act  of  June  29,  1906, 
above  quoted,  relative  to  the  San  Francisco 
fire,  was  broader  in  its  terms  than  that  con- 
sidered in  the  Comptroller's  decision  last  above 
cited.  No  question  of  jurisdiction  arose  under 
the  San  Francisco  act,  which  provided  that 
"reimbursement  shall  be  made  under  regula- 
tions to  be  prescribed  by  the  Secretary  of  the 
Navy  and  upon  vouchers  to  be  approved  by 
him  in  each  case."  Only  one  claim  under  this 
act  was  considered  by  the  Comptroller  of  the 
Treasury,  and  was  allowed  as  of  course,  the 
Comptroller  saying:  "The  said  claim  was  ap- 
proved on  August  27,  1907,  by  the  Secretary  of 
the  Navy  in  the  amount  of  147.44.  Upon  this 
revision,  therefore,  the  claimant  will  be  al- 
lowed $47.44,  the  amount  approved  by  the 
Secretary  of  the  Navy."  (Comp.  Dec,  Sept. 
16,  1907,  Appeal  No.  12726,  file  4753-95.)] 

Accounting'  oflB.cers  bound  by  naval  reg- 
ulations.— Under  the  act  of  March  2,  1895  (28 
Stat.  962,  above  noted),  the  accounting  officers 
were  bound  by  the  official  statement  of  the  Chief 
of  the  Bureau  of  Navigation  as  to  what  articles 
were  a  part  of  the  necessary  outfit  required  by 
the  regulations.  While  the  number  required 
by  the  regulations  might  be  below  that  with 
which  the  men  were  usually  provided,  still  no 
discretion  lay  in  the  accounting  officers  to  go 
behind  the  regulations  fixed  by  the  naval  au- 
thorities who  were  famiUar  with  the  needs  of 
the  men.     (2  Comp.  Dec,  150.) 


LIMITATIONS   UPON   CLAIMS. 

Value  at  date  of  loss. — In  settling  claims 
under  the  act  of  March  2,  1895  (above  noted), 
it  was  held  that  the  accounting  officers  must  al- 
low the  actual  value  of  private  property  at  the 
date  of  the  loss  or  destruction,  when  such  actual 
value  is  proved  by  the  claimant.  As  petty  offi- 
cers and  seamen  in  the  naval  service  are  not 
required  to  procure  their  clothing  and  personal 
effects  from  the  paymaster  upon  requisitions, 
they  are  not  limited  to  the  paymaster's  issuing 
price,  but  may  prove  their  claims  by  such  evi- 
dence as  is  required  to  clearly  establish  the 
actual  value  of  their  property  at  the  date  of 
loss  or  destruction.  In  the  absence  of  such 
proof,  the  "issuing  price"  may  be  accepted  aa 
a  fair  valuation.     (2  Comp.  Dec,  150.) 

Articles  required  by  regulations. — Offi- 
cers and  men  presenting  claims  under  the  act 
of  March  2,  1895  (above  noted),  could  be  reim- 
bursed only  for  "such  articles  of  personal 
property  as  are  required  by  the  U.  S.  Naval 
Regulations"  both  as  to  number  and  kind, 
and  the  accounting  officers  could  not  allow 
claims  for  articles  in  excess  of  the  regulation 
requirements,  which  they  were  permitted  to 
carry  for  their  personal  comfort  or  convenience. 
(2  Comp.  Dec,  150;  1  Comp.  Dec,  441.) 

Articles  not  required  by  regulations 
but  within  limit  of  amount. — The  act  of 
February  7,  1903  (quoted  above),  did  not 
limit  reimbursement  for  losses  on  the  Charles- 
ton to  articles  required  by  the  regulations, 
but  on  the  contrary  permitted  payment  to 
be  made  for  any  article  lost  that  was  suit- 
able and  appropriate  to  the  rank,  rating,  or 
duty  of  the  person  suffering  such  loss,  though 
such  article  may  not  have  been  required 
by  the  regulations;  but  the  whole  amount 
which  could  be  allowed  was  strictly  limited  to 
the  total  value  of  articles  required  by  the  Navy 
Regulations.  To  illustrate,  if  a  special  full 
dress  suit  was  required,  and  it  appeared  that 
the  officer  did  not  lose  such  an  article,  the  value 
of  that  article  could  be  allowed  him  through 
reimbursement  for  the  loss  of  some  other  article 
or  articles  which,  while  not  required  by  the 
regulations,  were  nevertheless  suitable  to  the 
rank  or  duty  of  the  officer.  It  was  possible 
under  this  law  for  an  officer  or  enlisted  man  who 
had  lost  no  article  required  by  the  regulations, 
to  receive  a  large  sum  for  the  loss  of  other  arti- 
cles, but  the  sum  allowed  could  be  no  greater 
than  the  total  value  of  the  articles  required  by 
the  regulations.  (Letter  of  Comptroller  of  the 
Treasury  to  the  Secretary  of  the  Navy,  Nov.  5, 
1903,  Appeal  No.  9569,  file  9410,  2527,  1903; 
1370-1903.) 

What  articles  required  by  regulations. — 
An  examination  of  the  volume  entitled  "U.  S. 
Navy  Regulations  "  fails  to  disclose  information 
as  to  what  articles  are  required.  Under  these 
circumstances,  not  only  have  the  Uniform 
Regulations  been  followed,  but  also,  in  order  to 
ascertain  what  was  required  by  the  regulations 
of  the  Navy,  an  official  itemized  statement  was 
obtained  from  the  Chief  of  the  Bureau  of  Navi- 
gation, giving  the  character  and  number  of  such 
articles.  If  this  statement  could  not  be  ac- 
cepted, then  it  appears  that  there  were  in  fact 


273 


Sec.  300. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


no  Naval  Regulations  as  contemplated  in  the 
act  (Mar.  2,  1895).  However,  the  expression 
"naval  roj;ulations"  should  be  construed  in 
accordance  with  the  intention  of  Congress,  and 
the  manifest  purpose  of  the  act  being  to  reim- 
burse the  officers  and  seamen  for  the  loss  of 
clothing  required  by  the  rules  and  rej^ulations 
of  the  Navy,  the  statement  of  the  Chief  of  the 


Bureau  of  Navigation,  transmitted  by  the  Secre- 
tary of  the  Navy,  giving  the  number  and  char- 
acter of  the  articles  required  by  the  regula- 
tions, must  be  treated  as  the  best  evidence  of 
what  was  required  by  the  U.  S.  Naval  Regula- 
tions referred  to  in  the  act.  (2  Comp.  Dec.  150.) 
[See  note  to  section  161,  Revised  Statutes.] 


Sec.  297.  [Auditors  may  administer  oaths.]  Tlie  several  Auditors  are 
empowered  to  administer  oaths  to  witnesses  in  any  case  in  which  they  may  deem 
it  necessary  for  the  due  examination  of  the  accounts  with  which  they  shall  be 
charged.— (3  Mar.,  1817,  c.  45,  s.  12,  v.  3,  p.  368.  8  Jmie,  1872,  c.  335,  s.  24, 
V.  17,  p.  228.) 


See  sections  184, 185,  and  186,  Revised  Statutes, 
relative  to  seciu*ing  attendance  of  witnesses. 


See  note  to  section  183,  Re-vdsed  Statutes,  con- 
cerning oaths  in  cases  arising  in  the  Navy. 


Sec.  300.  [Allowance  of  lost  checks.]  Whenever  the  disbursing  officer  or 
agent  by  whom  was  issued  any  check  which  has  been  lost,  destroyed,  or  stolen 
is  dead,  or  no  longer  in  the  service  of  the  United  States,  the  proper  accounting 
oflScer  shall,  under  such  regulations  as  the  Secretary  of  the  Treasury  may  pre- 
scribe, state  an  account  in  favor  of  the  owner  of  such  original  check  for  the 
amount  thereof,  and  charge  such  amount  to  the  account  of  such  officer  or 
agent.— (2  Feb.,  1872,  c.  12,  ss.  1,  2,  v.  17,  p.  29.) 


The  substance  of  this  provision  is  repeated  in 
section  3647,  Revised  Statutes,  which  sec- 
tion was  amended  and  reenacted  by  act  of 
February  23,  1909  (35  Stat.,  643.) 

Regulations  prescribed  by  the  Secretary  of  the 


Treasury  concerning  lost  checks  are  given 
in  article  4337,  Navy  Regulations,  1913. 
See  note  to  section  251,  Revised  Statutes,  on 
general  subject  of  regulations  of  the  Treas- 
ury Department. 


274 


CHAPTER  FIVE. 

THE  TREASURER. 

Sec.  301.  [Treasurer.]  There  shall  be  in  the  Department  of  the  Treasury 
a  Treasurer  of  the  United  States,  who  shall  be  appointed  by  the  President,  by 
and  with  the  advice  and  consent  of  the  Senate,  and  shall  be  entitled  to  a  salary 
of  six  thousand  five  hundred  dollars  a  year. — (2  Sept.,  1789,  c.  12,  s.  1,  v.  1,  p. 
65.  23  July,  1866,  c.  208,  s.  2,  v.  14,  p.  206.  3  Mar.,  1875,  c.  130,  s.  2,  v.  18, 
p.  397.) 


The  salary  of  the  Treasurer  of  the  United 
States  was  fixed  at  |S,000  per  annum  by  the 
act  of  March  4,  1909  (35  Stat.,  1065). 
The  rooms  provided  in  the  Treasury 
Building'  at  the  seat  of  government  for 
the  use  of  the  Treasirrer  are  by  law  the 
"Treasury  of  the  United  States"  (sec.  3591, 
R.  S.);  assistant  treasurers  are  authorized  and 
have  been  appointed  to  serve  at  New  York  and 
other  cities  (sec.  3595,  R.  S. ) ;  the  rooms  assigned 
by  law  to  be  occupied  by  them  are  appropri- 
ated to  their  use  and  for  the  safekeeping  of  the 
public  money  deposited  with  them  (sec.  3598, 
R.  S.);  the  assistant  treasurers  are  to  have  the 
charge  and  care  of  the  rooms,  etc.,  assigned  to 
them,  and  to  perform  the  duties  required  of 
them  relating  to  the  receipt,  safekeeping,  and 
disbursement  of  public  money  (sec.  3599,  R.  S.); 
all  collectors  and  receivers  of  public  money  of 
every  description  within  the  city  of  New  York 
and  other  cities  are  required,  as  often  as  may  be 
directed  by  the  Secretary  of  the  Treasury,  to 
pay  over  to  the  assistant  treasurer  in  their  re- 
spective cities  all  public  money  collected  by 
them  or  in  their  hands  (sec.  3615,  R.  S.);  the 
Treasurer  of  the  United  States  and  all  assistant 
treasurers  are  requu'ed  to  keep  all  public  money 
placed  in  their  possession  until  the  same  is 
ordered  by  the  proper  department  or  officer  of 
the  Government  to  be  transferred  or  paid  out, 


and  when  such  orders  are  received,  faithfully 
and  promptly  to  comply  with  same ;  and  to  per- 
form all  other  duties  as  fiscal  agents  of  the  Gov- 
ernment that  may  be  imposed  by  any  law  or  by 
any  regulation  of  the  Treasury  Department 
made  in  conformity  with  law  (sec.  3639,  R.  S.); 
all  money  paid  into  the  Treasury  of  the  United 
States  is  subject  to  the  draft  of  the  Treasurer; 
and  for  the  purpose  of  payment  on  the  public 
account  the  Treasurer  is  authorized  to  draw 
on  any  of  the  depositories  as  he  may  think  most 
conducive  to  the  public  interest  and  the  con- 
venience of  pubUc  creditors.  (Sec.  3644,  R. 
S.)     (Cooke  V.  U.  S.,  91  U.  S.,  398.) 

Adjustment  of  accounts. — All  claims 
against  the  United  States  are  to  be  settled  and 
adjusted  in  the  Treasury  Department,  and  that 
is  located  "at  the  seat  of  Government."  The 
assistant  treasurer  in  New  York  [or  elsewhere] 
is  a  custodian  of  public  money  which  he  may  pay 
out  or  transfer  upon  the  order  of  the  proper  de- 
partment or  officer;  but  he  has  no  authority  to 
settle  and  adjust — that  is  to  say,  to  determine 
upon  the  validity  of,  any  claim  against  the  Gov- 
ernment. He  can  pay  only  after  the  adjust- 
ment has  been  made  "in  the  Department  of  the 
Treasury,"  and  then  upon  drafts  drawn  for  that 
purpose  by  the  Treasurer.  (Cooke  v.  U.  S., 
91  U.  S.,  399.^ 


Sec.  303.  [Assistant  Treasurer.]  There  shall  be  in  the  Department  of  ths 
Treasury  an  Assistant  Treasurer  of  the  United  States,  who  shall  be  appointed 
by  the  President,  by  and  with  the  advice  and  consent  of  the  Senate,  and  shall 
be  entitled  to  a  salary  of  two  thousand  eight  hundred  dollars  a  year. — (3  Mar., 
1863,  c.  89,  s.  1,  V.  12,  p.  761.     25  June,  1864,  c.  147,  s.  2,  v.  13,  p.  159.) 


See  note  to  preceding  section. 

The  compensation  of  the  Assistant  Treasurer 
has  been  increased  in  annual  appropria- 
tion acts  to  13,600  per  annum.  See  act  of 
March  4,  1913  (37  Stat.,  755). 


Additional  "assistant  treasurers  of  the  United 
States,"  located  in  various  cities,  are  pro- 
vided for  by  sections  3594  and  3595,  Re- 
vised Statutes. 


Sec.  305.  [Duties  of  the  Treasurer.]     The  Treasurer  shall  receive  and  keep 
the  moneys  of  the  United  States,  and  disburse  the  same  upon  warrants  drawn 


275 


Sec.  306. 


Ft.  2.  REVISED  STATUTES. 


Treasury  Department. 


by  the  Secretary  of  the  Treasury,  countersigned  by  either  Comptroller,  and 
recorded  by  the  Rc2:istcr,  and  not  other^^'ise.  He  shall  take  receipts  for  all 
moneys  paid  by  him,  and  shall  give  receipts  for  all  moneys  received  by  him; 
and  all  receipts  for  moneys  received  by  him  shall  be  indorsed  upon  warrants 
signed  by  the  Secretary  of  the  Treasury,  without  which  warrant,  so  signed,  no 
acknowledgment  for  money  received  into  the  public  Treasury  shall  be  valid. 
He  shall  render  his  accounts  to  the  Fu*st  Comptroller  quarterly,  or  oftener  if 
required,  and  shall  transmit  a  copy  thereof,  when  settled,  to  the  Secretary  of 
the  Treasury.  He  shall  at  all  times  submit  to  the  Secretary  of  the  Treasury 
and  the  First  Comptroller,  or  either  of  them,  the  inspection  of  the  moneys  m 
his  hands.— (2  Sept.,  1789,  c.  12,  s.  4,  v.  1,  p.  65.) 

See  note  to  section  301,  Revised  Statutes. 

So  much  of  this  section  as  required  the  Register 

of  the  Treasury  to  record  warrants  was  re- 
pealed by  act  of  July  31,  1894,  section  11 

(28  Stat.,  209). 
The  title  "First  Comptroller"  was  changed  to 

"Comptroller  of  the  Treasury"   and  the 

office  of  Second  Comptroller  was  abolished 

by  act  of  July  31,  1894,  section  4  (28  Stat., 

206). 
The  accounts  of  the  Treasurer  are  to  be  received 

and    examined    by    the    Auditor    for  the 

Treasury  Department.     (Act  July  31,  1894, 

sec.  7,  28  Stat.,  206.) 
Payments  upon  warrants. —  The  judg- 
ments of  the  Court  of  Claims,  even  when  affirmed 
by  the  Supreme  Court,  and  allowances  made  by 
the  Secretary  of  the  Treasury  or  other  public 
officers  under  authority  of  law,  can  not  be  paid 

Sec.  306.  [Liabilities  outstanding  three  or  more  years.]  At  the  termina- 
tion of  each  fiscal  year  all  amounts  of  moneys  that  are  represented  by  certifi- 
cates, drafts,  or  checks,  issued  by  the  Treasurer,  or  by  any  disbursing  officer  of 
any  Department  of  the  Government,  upon  the  Treasurer  or  any  assistant 
treasurer,  or  designated  depositary  of  the  United  States,  or  upon  any  national 
bank  designated  as  a  depositary  of  the  United  States,  and  which  shall  be 
represented  on  the  books  of  either  of  such  offices  as  standing  to  the  credit  of 
any  disbursing  officer,  and  which  were  issued  to  facilitate  the  payment  of 
warrants,  or  for  any  other  purpose  in  liquidation  of  a  debt  due  from  the  United 
States,  and  which  have  for  three  years  or  more  remained  outstanding,  unsat- 
isfied, and  unpaid,  shall  be  deposited  by  the  Treasurer,  to  be  covered  into  the 
Treasury  by  warrant,  and  to  be  carried  to  the  credit  of  the  parties  in  whose 
favor  such  certificates,  di'afts,  or  checks  were  respectively  issued,  or  to  the 
persons  who  are  entitled  to  receive  pay  therefor,  and  into  an  appropriation 
accoimt  to  be  denominated  "outstanding  Uabilities." — (2  May,  1866,  c.  70,  ss. 
1,  4,  V.  14,  pp.  41,  42.) 


by  the  Treasurer  except  upon  a  warrant  drawn 
by  the  Secretary  of  the  Treasury,  counter- 
signed by  the  Comptroller  of  the  Treasury,  in 
pursuance  of  appropriations  made  by  law. 
(Ravesies  v.  U.  S.,  21  Ct.  Cls.,  243.)  [See  note 
to  section  236,  Revised  Statutes.] 

All  warrants  are  required  to  be  countersigned 
by  the  Comptroller  of  the  Treasury  under 
section  11,  act  of  July  31,  1894  (28  Stat.,  209); 
under  section  4  of  the  same  act  (28  Stat.,  206), 
power  is  given  to  the  Assistant  Comptroller  of 
the  Treasury,  under  direction  of  the  Comp- 
troller of  the  Treasury,  to  countersign  all  war- 
rants; and  the  chief  clerk  in  the  office  of  the 
Comptroller  of  the  Treasury  is  empowered,  in 
the  name  of  the  Comptroller  of  the  Treasury, 
to  countersign  all  warrants  except  accountable 
warrants. 


See  sections  of  the  Revised  Statutes  set  forth 
below,  and  notes  thereto. 

Regulations  in  pursuance  of  sections 
306-310,  Revised  Statutes.— The  Navy 
Regulations,  1913,  contain  tlie following  article: 

"  4334.  The  following  regulations  made  by  the 
Secretary  of  the  Treasury,  in  pursuance  of  sec- 
tions 306  to  310  of  the  Revised  Statutes,  shall  be 
observed  by  all  officers: 

"  (a)  Any  Treasury  draft  or  any  check  drawn 
by  a  public  disbursing  officer  still  in  service, 


which  shall  be  presented  for  payment  before  it 
shall  have  been  issued  three  full  fiscal  years,  will 
be  paid  in  the  usual  manner  by  the  oflicer  or  bai^  k 
on  wliich  it  is  drawn,  and  from  funds  to  the 
credit  of  the  drawer.  Thus,  any  such  draft  or 
check  issued  on  or  after  July  1,  1909,  will  be 
paid  as  above  stated  until  June  30,  1913,  and 
the  same  rule  will  apply  for  subsequent  years. 
"  (6)  Any  such  draft  or  check  which  has  been 
issued  for  a  longer  period  than  three  full  fiscal 
years  will  be  paid  only  by  the  settlement  of 


276 


^ 


Treasury  Department. 


Ft.  2.  REVISED  STATUTES. 


Sec.  306. 


an  account  in  the  Treasurj^  Department,  as 
pro^^.ded  in  section  308,  Revised  Statutes,  and 
for  this  purpose  the  draft  or  check  will  be  trans- 
mitted to  the  Secretary  of  the  Treasury  for  the 
necessary  action . 

' '  (c)  At  the  close  of  each  fiscal  year,  the  Treas- 
urer, the  several  assistant  treasurers,  and  the 
national-bank  depositaries  will  render  to  the 
Secretary  of  the  Treasury,  as  required  by  sec- 
tion 310,  a  list  of  all  disbursing  officers'  accounts 
still  unclosed  which  have  remained  unchanged 
on  the  books  of  their  respective  offices  or  banks, 
either  by  debit  or  credit,  more  than  three  fiscal 
years,  giving  in  each  case  the  name  and  official 
designation  of  the  officer,  the  date  when  the 
accoimt  with  him  was  opened,  the  date  of  last 
debit  and  last  credit,  and  the  balance  remain- 
ing to  hia  credit. 

^\d)  Every  disbursing  officer  will,  on  the  30th 
of  June  of  each  year,  as  also  required  by  section 
310,  make  a  return  to  the  Secretary  of  the 
Treasury  of  all  checks  drawn  by  him  which 
have  been  outstanding  and  unpaid  for  three 
full  fiscal  years,  stating  the  number  of  each 
check,  its  date,  amount,  in  whose  favor,  on 
what  office  or  bank,  and  for  what  purpose 
drawn ,  the  number  of  the  voucher  in  payment 
of  which  it  was  drawn,  and,  if  known,  the 
residence  of  the  payee. 

"(e)  Whenever  any  disbursing  officer  of  the 
United  States  shall  cease  to  act  in  that  capacity, 
he  will  at  once  inform  the  Secretary  of  the 
Treasury  whether  he  has  any  public  funds  to 
his  credit  in  any  office  or  bank,  and,  if  so,  what 
checks,  if  any,  he  has  drawn  against  the  same 
which  are  still  outstandmg  and  unpaid.  Until 
satisfactory  information  of  this  character  shall 
have  been  furnished,  the  whole  amount  of  such 
moneys  will  be  held  to  meet  the  payment  of 
his  checks  properly  payable  therefrom. 

"(/)  In  case  of  the  death,  resignation,  or  re- 
moval of  a  public  disbursing  ofiicer,  any  check 
pre^iou8ly  drawn  by  him  and  not  presented 
for  payment  within  four  months  of  its  date  will 
not  be  paid  until  its  correctness  shall  have 
been  attested  by  the  Secretary  or  Assistant 
Secretary  of  the  Treasury. 

"  {g)  If  the  object  or  purpose  for  which  any 
check  of  a  public  disbursing  officer  is  drawn  is 
not  stated  thereon,  as  required  by  the  follow- 
ing article,  or  if  any  reason  exists  for  suspecting 
fraud,  the  office  or  bank  on  which  such  check 
is  drawn  will  refuse  its  payment." 

Statute  of  Limitations. 

Does  not  run  until  demand  and  refusal. — 
Where  the  amount  of  lost  checks  was  covered 
into  the  Treasury  in  pursuance  of  this  section, 
the  promise  of  the  Government,  contained  in 
the  statute,  to  hold  money  so  paid  into  the 
Treasury,  was  a  continuing  promise,  available 
to  the  drawee  or  his  administratrix  at  any  time, 
to  which  full  force  should  be  given;  when 
application  was  made  by  the  administratrix 
to  the  Secretary  of  the  Treasury  for  payment 
of  the  checks  by  the  issue  of  Treasury  warrants 
under  the  authority  conferred  by  sections  306, 
307, 308,  Revised  Statutes,  and  such  application 
was  refused,  then  for  the  first  time  a  claim  for 
the  breach  of  the  contract  accrued,  and  the 
statute  of  limitations  began  to  run  from  the 


date  of  the  refusal.  (U.  S.  v.  Wardwell,  172 
U.  S.,  48;  26  Op.  Atty.  Gen.,  194.) 

Where  it  is  established  that  funds  in  the 
hands  of  the  Government  are  held  in  trust,  it 
follows  that  no  part  of  such  funds  is  subject  to 
the  operation  of  the  statute  of  limitations. 
(State  of  Louisiana  v.  U.  S.,  23  Ct.  Cls.,  53.) 
The  claim  for  such  funds  first  accrues,  within 
the  meaning  of  the  statute  of  limitations,  when 
it  is  first  presented  to  the  Secretary  of  the 
Treasury.  (Harrison  v.  U.  S.,  20  Ct.  Cls.,  175.) 
[In  U.  S.  V.  Taylor,  104  U.  S.,  216,  it  was  held 
that  when  the  surplus  proceeds  of  real  estate, 
sold  for  a  direct  tax  due  the  United  States,  is 
deposited  in  the  Treasury  to  be  there  held  for 
the  use  of  the  owner  of  the  property,  the  statute 
of  limitations  runs  from  the  date  of  his  appli- 
cation to  the  Secretary  of  the  Treasury  for  that 
surplus.] 

Analogous  to  trust  fund. — Wliere  the 
amount  of  an  unclaimed  draft  issued  by  the 
Government  was  covered  into  the  Treasury, 
and  about  16  years  later  demand  for  paj-Tnent 
was  made  and  refused;  held,  that  after  the 
draft  was  issued  the  Government  held  the  fimd 
in  the  nature  of  a  trust,  and  that  the  statute  of 
limitations  as  to  claims  cognizable  by  the  Court 
of  Claims  did  not  begin  to  run  until  the  date  of 
demand.  (Ray  ^.U.  S.,  50  Fed.  Rep.,  166.  See 
also  Ravenel  et  al.  v.  U.  S.,  23  Ct.  Cls.,  192.) 

Disavowal  of  trust. — An  act  repealing  an 
appropriation  must  be  regarded  as  a  disavowal 
of  the  trust;  and  it  must  be  held  that  the  statute 
of  limitations  began  to  run  at  the  date  of  the 
repealing  act.  (Russell  v.  U.  S.,  37  Ct.  Cls., 
113.) 

Where  money  appropriated  by  Congress  is 
not  paid  to  the  beneficiary  but  is  covered  into 
the  Treasury  under  this  section  and  carried  to 
the  credit  of  the  party  for  whose  benefit  the 
appropriation  was  made,  it  may  be  regarded  as 
an  express  trust,  subject  to  the  qualification 
that  the  statute  of  limitations  will  begin  to  run 
as  soon  as  the  trust  is  openly  disavowed  by  the 
trustee.     (Russell  v.  U.  S.,  37  Ct.  Cls.,  113.) 

The  statute  of  limitations  can  not  be  set  up 
against  money  credited  to  a  claimant  in  the 
appropriation  account  of  "outstanding  liabil- 
ities. "  Such  money  is  held  as  a  trust  fund, 
payable  on  demand  without  limit  of  time. 
The  statute  of  limitations  does  not  run  against 
it  until  the  trustee  disavows  the  trust.  (Wayne 
V.  U.  S.,  26  Ct.  Cls.,  274.) 

Proof  of  identity  sufl&cient. — There  is 
much  indebtedness  of  the  United  States  which 
no  lapse  of  time  in  making  appUcation  for  pay- 
ment renders  stale,  such  as  interest  on  regis- 
tered bonds  and  other  balances  stated  in  favor 
of  parties  on  the  books  of  the  Treasury  Depart- 
ment, as  to  which  the  only  proof  to  be  made  is 
the  identity  of  the  claimant  or  his  right  to 
represent  the  record  creditor.  (Waddell  v. 
U.  S.,  25  Ct.  Cls.,  323,  citing  sees.  306,  307,  308, 
R.  S.,  and  Hall's  Case,  17  Ct.  Cls.,  39.) 

Merger  of  original  claim.^ — It  has  been  held 
that  an  action  may  be  maintained  against  the 
Government  upon  a  Treasury  draft  issued  in 
payment  of  an  account  which  has  been  audited 
and  certified  at  the  Treasury,  notwithstanding 
that  the  original  cause  of  action  is  barred  by 
the  statute  of  limitations.  (Buffalo  Bayou  R. 
Co.  V.  U.  S.,  16  Ct.  Cls.,  238.) 


277 


Sec.  308. 


Pt.2.  REVISED  STATUTES. 


Treasury  Department. 


WTieu  a  claim  passes  intxD  the  form  of  checks, 
its  legal  character  changes  from  that  of  a  (leniaud 
for  goods  8t)ld  and  delivered  to  a  claim  repre- 
sented by  the  checks  given  in  liquidation  of  the 
original  demand.  It  then  becomes  a  legal 
obligation  arising  upon  the  new  form  of  indebt- 
edness. The  fund  establi.*hed  by  section  306, 
Revised  Statutes,  bears  upon  it  the  impress  of  a 
trust,  payable  on  demand  ^vilhout  limit  of  time; 
and  the  statutes  of  limitations  can  not  be  set  up 
against  money  so  credited  to  the  claimant  in 
the  permanent  appropriation  for  outstanding 
liabilities.     (Wardwell  v.  U.  S.,  32  Ct.  Cls.,  30.) 

Juiisdiction.  of  Court  of  Claims. — Where 
a  Government  check  is  lost  or  stolen,  the 
Re\nsed  Statutes  (sees.  306-310,  3646)  do  not 
require  that  payment  must  be  postponed  for 
three  years  or  preclude  a  suit.    They  simply 


authorize  disbursing  officers  to  dupUcate  small 
checks  in  certain  cases.  The  power  given  to 
the  accounting  officers  to  duplicate  lost  checksis 
not  exclusive  and  does  not  affect  the  jurisdic- 
tion of  the  courts.  (Becker  v.  U.  S.,  26  Ct.  Cls 
172,  177.) 

Character  of  outstanding  draft. — A 
Treasury  draft  outstanding  for  more  than  three 
years,  the  appropriation  to  pay  it  covered  into 
the  Treasury,  has  ceased  to  be  negotiable 
paper.     (Harris  i;.  U.  S.,  27  Ct.  Cls.,  177.) 

A  claimant  having  an  amount  rightly  due  to 
her,  standing  to  her  credit  on  the  books  of  the 
Treasury  under  section  306,  Revised  Statutes,  is 
entitled  to  recover  though  a  draft  more  than 
three  years  outstanding  for  the  same  debt  is  in 
the  hands  of  a  thu-d  person.  (Harris  v.  U.  S., 
27  Ct.  Cls.,  177.) 


Sec.  307.  [Vouchers  for  drafts  remaining  unpaid.]  The  certificate  of  the 
Register  of  the  Treasury,  stating  that  the  amount  of  any  draft  issued  by  the 
Treasurer,  to  facihtate  the  payment  of  a  warrant  directed  to  him  for  payment, 
has  remained  outstanding  and  unpaid  for  three  years  or  more,  and  has  been 
deposited  and  covered  into  tlie  Treasury  in  the  manner  prescribed  by  the  pre- 
ceding section,  shall  be,  when  attached  to  any  such  warrant,  a  sufficient  voucher 
in  satisfaction  of  any  such  warrant  or  part  of  any  warrant,  the  same  as  if  the 
drafts  correctly  indorsed  and  fully  satisfied  were  attached  to  such  warrant  or 
part  of  warrant.  And  all  such  moneys  mentioned  in  this  and  in  the  preceding 
section  shall  remain  as  a  permanent  appropriation  for  the  redemption  and 
payment  of  aU  such  outstanding  and  unpaid  certificates,  drafts,  and  checks.— (2 
May,  1866,  c.  70,  s.  2,  v.  14,  p.  41.) 


This  section  was  amended  byactof  July31, 1894, 
section  16  (28  Stat.,  210);  by  substituting 
the  words  "Secretary  of  the  Treasury"  for 


the  words  "Register  of  the  Treasury"  as 
given  above. 
See  note  to  preceding  section. 


Sec.  308.  [Payment  upon  presentation  of  outstanding  drafts.]  The  payee 
or  the  bona-fide  holder  of  any  draft  or  check  the  amount  of  which  has  been 
deposited  and  covered  into  the  Treasury  pursuant  to  the  preceding  sections, 
shall,  on  presenting  the  same  to  the  proper  officer  of  the  Treasury,  be  entitled 
to  have  it  paid  by  the  settlement  of  an  account  and  the  issuing  of  a  warrant 
in  his  favor,  according  to  the  practice  in  other  cases  of  authorized  and  liqui- 
dated claims  against  the  United  States. — (2  May,  1866,  c.  70,  s.  3,  v.  14,  p.  42.) 


See  note  to  section  306,  Revised  Statutes. 

Not  merely  matter  of  bookkeeping. — If 
bookkeeping  was  the  only  matter  sought  to  be 
provided  for  by  sections  306,  307,  and  308,  Re- 
vised Statutes,  there  were  no  need  of  section 
308.  That  prescribes  payment,  and  payment 
in  a  particular  way.  The  payee  does  not 
simply  surrender  his  check  and  receive  money; 
but  "on  presenting  the  same  to  tlie  proper 
officer"  he  is  "entitled  to  have  it  paid  by  the 
settlement  of  an  account  and  the  issuing  of  a 
warrant  in  liis  favor."  This  may  be  mere 
machinery  for  payment,  but  it  is  machinery 
not  used  or  required  until  after  the  money  has 
been  "covered  into  the  Treasury  by  warrant" 
and  "carried  to  the  credit"  of  the  payee.  The 
right  given  is  the  right  to  surrender  the  check 
and  receive  a  wan'ant  on  the  Treasury.     It  will 


also  be  noticed  that  the  purpose  of  the  act  of 
1866  upon  which  these  sections  are  based  was, 
as  expressed  in  its  title,  not  merely  to  "facili- 
tate the  settlement  of  the  accounts  of  the 
Treasurer  of  the  United  States,"  not  merely  to 
perfect  a  system  of  bookkeeping,  but  also  "to 
secure  certain  moneys  *  *  *  to  persons  to 
whom  they  are  due  and  who  are  entitled  to 
receive  the  same."  In  other  words,  the  pur- 
pose of  the  Government  by  this  statute  is  to 
secure  to  each  party  who  holds  Government 
paper  the  amount  thereof,  to  place  it  in  the 
Treasury  to  his  credit,  and  to  prescribe  a 
method  by  wliich,  whenever  he  wishes,  he  can 
obtain  it.  No  time  is  mentioned  in  which  he 
must  apply  for  a  warrant  or  after  which  the 
money  is  forfeited  to  the  Government.  When 
the  contract  created  by  the  promise  made  in 


278 


Treasury  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  310. 


section  308  is  broken,   then  a  claim  for  the  for  by  proof  that  it  was  stolen  and  has  not  been 

breach  of  such  contract  first  accrues  and  the  lieard  of  for  more  than  seventeen  years.     In 

limitation  begins  to  run.     (U.  S.  v.  Wardwell,  such  a  case  it  is  not  necessary  for  the  claimant 

172  U.S.,  48;  see  also  Ray  t;.U.  S.,  50  Fed.  Rep.,  to  give  a  bond  of  indemnity.     (Wayne  v.  U.  S., 

166.)  26  Ct.  Cls.,  274.     See  also  U.  S.  v.  Wardwell, 

Payment  without  bond. — The  nonproduc-  172  U.  S.,  48.) 
tion  of  a  Treasury  draft  is  sufficiently  accounted 

Sec.  309.  [Accounts  of  disbursing  officers  unchanged  for  three  years.]  The 
amounts,  except  such  as  are  provided  for  in  section  three  hundred  and  six,  of 
the  accounts  of  every  kind  of  disbursing  officer,  which  shall  have  remained  un- 
changed, or  which  shall  not  have  been  increased  by  any  new  deposit  thereto, 
nor  decreased  by  drafts  drawn  thereon,  for  the  space  of  tkree  years,  shall  in  like 
manner  be  covered  into  the  Treasuiy,  to  the  proper  appropriation  to  which  they 
belong;  and  the  amounts  thereof  shall,  on  the  certificate  of  the  Treasurer  that 
such  amount  has  been  deposited  in  the  Treasury,  be  credited  by  the  proper 
accounting  officer  of  the  Department  of  the  Treasury  on  the  books  of  the 
Department,  to  the  officer  in  whose  name  it  had  stood  on  the  books  of  any 
agency  of  the  Treasury,  if  it  appears  that  he  is  entitled  to  such  credit. — (2  May, 
1866,  c.  70,  s.  5,  V.  14,  p.  42.) 

See  notes  to  sections  306-308,  Revised  Statutes. 

Sec.  310.  [Annual  reports  of  disbursing  officers,  etc.]  The  Treasurer,  each 
assistant  treasurer,  and  each  designated  depositary  of  the  United  States,  and 
the  cashier  of  each  of  the  national  banks  designated  as  such  depositaries,  shaU, 
at  the  close  of  business  on  every  thirtieth  day  of  June,  report  to  the  Secretary 
of  the  Treasury  the  condition  of  every  account  standing,  as  in  the  preceding 
section  specified,  on  the  books  of  their  respective  offices,  stating  the  name  of 
each  depositor,  with  his  official  designation,  the  total  amount  remaining  on 
deposit  to  his  credit,  and  the  dates,  respectively,  of  the  last  credit  and  the  last 
debit  made  to  each  account.  And  each  disbursuig  officer  shall  make  a  like 
return  of  all  checks  issued  by  him,  and  which  may  then  have  been  outstanding 
and  unpaid  for  three  years  and  more,  stating  fuUy  in  such  report  the  name  of 
the  payee,  for  what  purpose  each  check  was  given,  the  office  on  which  drawn, 
the  number  of  the  voucher  received  therefor,  the  date,  number,  and  amount 
for  which  it  was  drawn,  and,  when  known,  the  residence  of  the  payee. — (2  ]V[ay, 
1866,  c.  70,  s.  6,  V.  14,  p.  42.) 


For  modification  of  this  section,  see  act  of 

July  1,  1916,  section  5  (39  Stat.,  336). 
Disbursiug    officers    are    required    to    furnish 


heads  of  departments  with  certain  infor- 
mation for  annual  report  to  Congress  (sec. 
193,  R.  S.) 


279 


TITLE   yill. 
THE  DEPARTMENT  OF  JUSTICE. 


Sec. 

346.  Establishment  of  Department  of  Justice. 

347.  Solicitor  General. 
349.  Naval  solicitor,  etc. 

354.  Opinions  of  Attorney  General  required  by 

the  President. 

355.  Title  to  and  jurisdiction  over  land  pur- 

chased by  the  United  States. 

356.  Opinions  of  Attorney  General  required  by 

heads  of  departments. 

357.  Legal  advice  to  Departments  of  War  and 

Navy. 

358.  Reference  of  questions  by  Attorney  Gen- 

eral to  subordinates. 

359.  Conduct  and  argument  of  cases. 

360.  Performance  of  duty  by  officers  of  Depart- 

ment of  Justice. 


Sec. 

361.  Legal  services  required  by  the  President, 

heads  of  departments,  and  subordinates. 

362.  Superintendence  of  district  attorneys  and 

marshals. 

363.  Retaining  counsel  to  aid  district  attorneys. 

364.  Attendance  of  counsel  to  be  provided  by 

Attorney  General. 

365.  Counsel  fees  restricted. 

366.  Appointment  and  oath  of  special  attorneys 

or  counsel. 

367.  Interest  of  United  States  in  pending  suits, 

who  may  attend  to. 
383.  Publication  of  opinions. 


Sec.  346.  [Establishment  of  Department  of  Justice.]  There  shall  be  at  the 
seat  of  Government  an  Executive  Department  to  be  known  as  the  Department 
of  Justice,  and  an  Attorney-General,  who  shall  be  the  head  thereof. — (24  Sept., 
1789,  c.  20,  s.  35,  v.  1,  p.  92.     22  June,  1870,  c.  150,  s.  1,  v.  16,  p.  162.) 


See  sections  187, 188  and  189,  Revised  Statutes, 
and  sections  180.  185,  Judicial  Code,  act  of 
March  3, 1911  (36  Stat.,  1142),  as  to  duties  of 
the  Attorney  General. 
See  note  to  section  158,  Revised  Statutes,  as  to 
organization  and  growth  of  executive  de- 
partments, etc. 
There  is  no  very  specific  statement  of 
the  general  duties  of  the  Attorney  Gen- 
eral, but  it  is  seen  from  the  whole  chapter  that 
he  has  authority,  and  it  is  made  his  duty,  to 
supervise  the  conduct  of  all  suits  brought  by  or 
against  the  United  States,  and  to  give  advice  to 
the  President  and  the  heads  of  other  depart- 
ments of  the  Government.  He  is  invested  with 
the  general  superintendence  of  all  suits  to  be 
brought  against  the  debtors  of  the  Government, 
or  upon  bonds,  or  to  begin  criminal  prosecu- 
tions or  to  institute  proceedings  in  any  of  the 
numerous  cases  in  which  the  United  States  is 
plaintiff.  All  the  district  attorneys  who  do 
bring  them  in  the  various  courts  in  the  country 
are  placed  under  his  immediate  direction  and 
control .  He  is  undoubtedly  the  officer  who  has 
charge  of  the  institution  and  conduct  of  the 
pleas  of  the  United  States  and  of  the  litigation 
which  is  necessary  to  establish  the  rights  of  the 
Government.  He  is  the  officer  to  determine 
when  the  United  States  shall  sue,  for  whatit 
shall  sue,  and  to  be  responsible  that  such  suits 
are  brought  in  appropriate  cases.  In  all  this, 
however,  the  Attorney  General  acts  as  the  head 
of  one  of  the  executive  departments,  repre- 
senting the  authority  of  the  President  in  the 
class  of  subjects  within  the  domain  of  that 
department  and  under  his  control.  (U.  S.  v. 
San  Jacinto  Tin  Co.,  125  U.  S.,  273.) 


The  Attorney  General  is  given  "general  su- 
perintendence and  direction"  of  the  district 
attorneys,  in  whom  Congress  has  vested  the 
initial  power  of  prosecution.  (In  re  Beavers, 
131  Fed.  Rep.,  366.) 

The  provisions  of  law  concerning  the 
Department  of  Justice  "are  too  conclusive 
and  too  specific  to  leave  any  doubt  that  Con- 
gress intended  to  gather  into  the  Department  of 
Justice,  under  the  supervision  and  control  of 
the  Attorney  General,  all  the  litigation  and  all 
the  law  business  in  which  the  United  States 
are  interested,  and  which  previously  had  been 
scattered  among  different  pubUc  officers,  de- 
partments, and  branches  of  the  Government, 
and  to  break  up  the  practice  of  frequently  em- 
ploying unofficial  attorneys  for  the  public  serv- 
ice."   (Perry  v.  U.  S.,  28  Ct.  Cls.,  491.) 

Proceedings  before  grand  jury. — Neither 
the  Attorney  General,  the  Solicitor  General, 
nor  any  officer  of  the  Department  of  Justice  is 
authorized  by  sections  359,  367,  or  other  provi- 
sions of  the  Revised  Statutes  of  theUnited  States, 
to  conduct  or  to  aid  in  the  conduct  of  proceed- 
ings before  a  grand  jury,  nor  has  a  special  as- 
sistant to  the  Attorney  General  such  power. 
(U.  S.  V.  Rosenthal,  121  Fed.  Rep.,  862.) 
[This  is  now  authorized  by  act  of  June  30, 1906, 
noted  under  section  359,  "Revised  Statutes.] 

Relation  of  Attorney  General  to  Con- 
gress.— The  Attorney  General  is  not  authorized 
to  give  his  official  opinion  upon  a  call  of  either 
House  of  Congress  or  any  committee  or  Member 
thereof.  (17  Op.  Atty.  Gen.,  358.  For  other 
cases,  see  note  to  sec.  356,  R.  S.) 


281 


Sec.  355. 


Pt.2.  REVISED  STATUTES. 


Justice  Department. 


See  sections  177-182  Revised  Statutes,  as  to 
officers  authorized  to  act  temporarily  iu 
cases  of  death,  resignation,  absence,  or  sick- 
ness of  heads  of  Departments,  generally. 

The  salary  of  the  Solicitor-General  has  been 
increased  to  $10,000  per  annum. 


Sec.  347.  [Solicitor  General.]  There  shall  be  in  the  Department  of  Justice 
an  officer  learned  in  the  law,  to  assist  the  Attorney-General  in  the  performance 
of  his  duties,  called  the  Solicitor-General,  who  shall  be  appointed  by  the  Presi- 
dent, by  and  with  the  advice  and  consent  of  the  Senate,  and  shall  be  entitled 
to  a  salary  of  seven  thousand  five  hundred  dollars  a  year.  In  case  of  a  vacancy 
in  the  office  of  Attorney-General,  or  of  liis  absence  or  disability,  the  Solicitor 
General  shall  have  power  to  exercise  all  the  duties  of  that  office. — (22  June, 
1870,  c.  150,  s.  2,  V.  16,  p.  162.) 

Where  the  Solicitor  General  signs  a 
docuraent  as  "Acting  Attorney  General," 
the  absence  of  the  Attorney  General  will  be 
presumed  in  support  of  the  legality  of  the  docu- 
ment so  signed.  (U.  S.  v.  Twining,  132  Fed. 
Rep.,  129.  For  other  decisions,  see  notes  to 
sees.  161  and  177,  Revised  Statutes.) 

Sec.  349.  [Naval  Solicitor,  etc.]  There  shall  be  in  tlie  Department  of 
Justice  a  Solicitor  of  the  Treasury,  an  Assistant  Solicitor  of  the  Treasury,  a 
Solicitor  of  Internal  Revenue,  a  Naval  Solicitor,  and  an  Examiner  of  Claims  for 
the  Department  of  State,  who  shall  be  appointed  by  tlie  President,  by  and  with 
the  advice  and  consent  of  the  Senate,  and  shall  be  entitled  to  the  following 
salaries:  The  Solicitor  of  the  Treasury  to  four  thousand  dollars  a  year,  the 
Assistant  Solicitor  of  the  Treasm^y  to  three  thousand  dollars  a  year,  the  Solicitor 
of  Internal  Revenue  to  five  thousand  dollars  a  year,  the  Naval  Solicitor  to  three 
thousand  five  hundred  dollars  a  year,  and  the  Examiner  of  Claims  for  the 
Department  of  State  fom-  thousand  dollars  a  year. — (22  June,  1870,  c.  150,  ss. 
3,  9,  10,  V.  16,  pp.  162,  3.  29  May,  1830,  c.  153,  s.  1,  v.  4,  p.  414.  3  Mar., 
1865,  c.  76,  s.  1,  V.  13,  p.  468.  23  July,  1866,  c.  208,  s.  5,  v.  14,  p.  207.  13 
July,  1866,  c.  184,  s.  64,  v.  14,  p.  170.  23  July,  1866,  c.  208,  s.  5,  v.  14,  p.  207. 
27  May,  1870,  Res.  66,  s.  1,  v.  16,  p.  378.  3  Mar.,  1873,  c.  226,  s.  3,  v.  17,  p. 
508.) 

So  much  of  the  above  section  as  provided  for 

the  appointment  of,    and   payment  of  a 

salary  to,  a  "naval  solicitor,"  was  repealed 

and  that  office  abolished  by  act  June  19, 

1878  (20  Stat.,  205). 
The  office  of  the  Judge  Advocate  General  of  the 


Navy  was  established  by  act  of  June  8, 1880 
(21  Stat.,  164).  And  see  act  of  May  22, 1908 
(35  Stat.,  218),  noted  under  section  419, 
Revised  Statutes,  as  to  office  of  the  solic- 
itor in  the  Navy  Department. 
Other  amendments  to  this  section  do  not  relate 
to  the  Navv,  and  are  not  noted. 


Sec.  354.  [Opinions  of  Attorney  General  required  by  the  President.]  The 
Attorney  General  shall  give  his  advice  and  opinion  upon  questions  [of]  law, 
whenever  required  by  the  President. — (24  Sept.,  1789,  c.  20,  s.  35,  v.  1,  p.  92- 
27  Feh.,  1877,  c.  69,  v.  19,  'p.  241.) 


The  President's  right  to  call  for  an 
opinion  from  the  Attorney  General  is  not 
limited  to  questions  of  law.  Article  II,  section 
2,  clause  1,  of  the  Constitution,  provides  that  he 
"may  require   the   opinion   of   the   principal 


officer  of  each  of  the  executive  departments 
upon  any  subject  relating  to  the  duties  of  their 
respective  offices."  (23  Op.  Atty.  Gen.,  360. 
For  other  cases  see  note  to  section  356,  Revised 
Statutes.) 


Sec.  355.  [Title  to,  and  jurisdiction  over,  land  purchased  by  United  States.] 
No  public  money  shall  be  expended  upon  any  site  or  land  purchased  by  the 
United  States  for  the  purposes  of  erecting  thereon  any  armory,  arsenal,  fort, 
fortification,  navy-yaid,  custom-house,  light-house,  or  other  public  building, 
of  an}"  kind  whatever,  until  the  written  opinion  of  the  Attorney-General  shall 
be  had  in  favor  of  the  validity  of  the  title,  nor  imtil  the  consent  of  the  legis- 


282 


Justice  Department. 


Ft.  2.  REVISED  STATUTES. 


Sec.  855. 


lature  of  the  State  in  which  the  land  or  site  may  be,  to  such  purchase,  has  been 
given.  The  district  attorneys  of  the  United  States,  upon  the  appUcation  of 
the  Attorney-General,  shall  furnish  any  assistance  or  information  in  then- 
power  in  relation  to  the  titles  of  the  public  property  lying  within  their  respec- 
tive districts.  And  the  Secretaries  of  the  Departments,  upon  the  appUcation 
of  the  Attorney-General,  shall  procure  any  additional  evidence  of  title  which 
he  may  deem  necessary,  and  which  may  not  be  in  the  possession  of  the  officers 
of  the  Government,  and  the  expense  of  procuring  it  shall  be  paid  out  of  the 
appropriations  made  for  the  contingencies  of  the  Departments  respectively. — 
(11  Sept.,  1841,  Res.  No.  6,  v.  5,  p.  468.) 


Art.  R-117  (1)  Navy  Regulations,  1913,  pro- 
vides that  the  solicitor  in  the  Navy  Depart- 
ment "shall  be  charged,  under  the  special 
instructions  of  the  Secretary  of  the  Navy, 
with  the  searching  of  titles,  purchase,  sale, 
transfer,  and  other  questions  affecting  lands 
and  buildings  pertaining  to  the  Navy,  and 
with  the  care  and  preservation  of  all  muni- 
ments of  title  to  land  acqiiired  for  naval 
uses." 

By  act  of  February  27,  1877,  it  was  pro\'ided 
that  "it  shall  be  the  duty  of  all  officers  of 
the  United  States  having  any  of  the  title  pa- 
pers (of  property  purchased,  or  about  to  be 
purchased,  for  the  erection  of  pubUc  build- 
ings) in  their  possession,  to  furnish  them, 
forthwith,  to  the  Attorney  General.  No 
public  money  shall  be  expended  until  the 
written  opinion  of  the  Attorney  General 
shall  be  had."  (19  Stat.,  242.  Thisactwas 
amendatory  of  sec.  1136,  R.  S.,  relating  to 
the  Army.) 

By  act  of  March  2, 1889  (25  Stat.,  941)  it  was  pro- 
vided that  "Hereafter  all  legal  services  con- 
nected with  the  procurement  of  titles  to 
sites  for  public  buildings,  other  than  for 
life-saving  stations  and  pierhead  lights, 
shall  be  rendered  by  United  States  district 
attorneys:  Provided  further,  That  hereafter, 
in  the  procurement  of  sites  for  such  public 
buildings,  it  shall  be  the  duty  of  the  Attor- 
ney General  to  require  the  grantors  in  each 
case  to  furnish  free  of  all  expense  to  the 
Government,  all  requisite  abstracts,  official 
certificates,  and  evidences  of  title  that  the 
Attorney  General  may  deem  necessary." 

By  joint  resolution,  April  11,  1898,  it  was  pro- 
vided that  the  requirements  of  this  section 
shall  not  be  applicable  to  cases  in  which  a 
temporary  fort  or  fortification  may  be  con- 
structed upon  the  written  consent  of  the 
owner  of  the  land  in  an  emergency  in 
which,  in  the  opinion  of  the  President,  the 
immediate  erection  of  such  temporary  fort 
or  fortification  is  deemed  important  and 
urgent.     (30  Stat.  737.) 

By  act  of  October  6,  1917  (40  Stat.,  427),  it  was 
provided  that  this  section  "shall  not  apply 
to  the  expenditure  of  appropriations  for  the 
Ordnance  Department  of  the  Army  now 
available  for  the  purchase  of  land  and  for 
improvements  upon  such  land." 

By  act  of  March  30,  1900,  the  provisions  of  this 
section  were  "waived  "  in  a  case  in  which  it 
was  impracticable  to  apply  to  the  State 
legislature  for  consent  to  the  purchase  until 


its  next  session,  and  the  buildings  were  ur- 
gently required  for    the  shelter  of  troops 
(31  Stat.,  55.) 

Other  statutes  making  exception  to  the  pro- 
visions of  this  section  in  specific  cases  in- 
clude the  following:  July  2, 1917  (40  Stat., 
241);  October  6,  1917  (40  Stat.,  353);  March 
1,  1918  (40  Stat.,  439);  March  28,  1918  (40 
Stat.,  460);  April  11,  1918  (40  Stat.,  519); 
May  6,  1918  (40  Stat.,  552);  July  8,  1918 
(40  Stat.,  818);  July  9,  1918  (40  Stat.,  860, 
888);  July  18,  1918  (40  Stat.,  916). 

By  act  of  June  20, 1878,  it  was  provided  that  the 
provisions  of  this  section  and  section  4661, 
Revised  Statutes,  should  not  apply  to  the 
erection  of  a  sma,ll  pierhead  light.  (20  Stat., 
214 . )  Exception  has  also  been  made  in  the 
case  of  a  hghthouse  and  fog  signal.  (See 
2  Conip.  Dec,  626.) 

The  acquisition  of  land  by  condemnation  for 
public  use  is  provided  for  by  act  of  August 
1,1888  (25  Stat.,  357). 

The  President  is  authorized  to  procure  assent 
of  the  legislature  of  any  State  in  which 
lands  have  been  purchased  for  the  erection 
of  forts,  etc.,  without  such  consent  having 
been  obtained.  (Sec.  1838,  R.  S.)  ["Have 
been  purchased"  construed:  10  Op.  Atty. 
Gen.34.] 

The  President  is  authorized  to  obtain  a  release 
to  the  United  States  from  any  person  to 
whom  lands  are  conveyed  for  the  use  of  the 
United  States.     (Sec.  3752,  R.  S.) 

The  Constitution  provides  that  Congress  shall 
have  power  "to  exercise  exclusive  legisla- 
tion in  all  cases  whatsoever  *  *  *  over 
all  places  purchased  by  the  consent  of  the 
legislature  of  the  State  in  which  the  same 
shall  be,  for  the  erection  of  forts,  magazines, 
arsenals,  dockyards,  and  other  needful 
buildings."     (Art.  I,  sec.  8,  cl3,use  17.) 

The  punishment  of  offenses  committed  on  lands 
used  for  public  purposes,  the  punishment 
of  which  is  not  provided  for  by  any  law 
of  the  United  States,  shall  be  the  same  as 
provided  by  laws  of  the  State  in  which  situ- 
ated. (Sec.  289,  Criminal  Code,  act  Mar. 
4,  1909,  35  Stat.,  1145;  file  4143-04;  5103- 
164 :4.) 

The  punishment  for  cutting  or  injuring  trees, 
breaking  fences,  etc.,  on  lands  of  the  United 
States  reserved  or  purchased  for  pubUc  use, 
is  governed  by  Criminal  Code,  act  of  March 
4,  1909,  sections 49-58  (35  Stat.,  1098,  1099). 

Private  persons  prohibited  from  asserting  a  right 
to  the  exclusive  use  and  occupancy  of  pub- 


54641°— 22- 


19 


283 


Sec.  365. 


Pt.  2.  REVISED  STATUTES. 


Justice  Department. 


lie  lands;  m-il  proceedings  to  be  instituted 
by  United  States  in  such  cases;  and  Presi- 
dent authorized  to  employ  civil  or  military 
force  to  remove  and  destroy  any  unlawful 
inclosureof  said  lands;  etc.  (Act  Feb.  25, 
1885,  23  Stat.,  321.) 

No  contract  shall  be  made  for  the  erection  of  any 
public  building  or  for  any  improvement  in 
excess  of  the  amount  specifically  appropri- 
ated therefor.  (Sec.  3733,  R.  S.;  Cnminal 
Code,  act  Mar.  4,  1909,  sec.  98,  35  Stat., 
1106.) 

No  land  shall  be  purchased  on  account  of  the 
United  States,  except  under  a  law  author- 
izing such  purchase.     (Sec.  3736,  R.  S.) 

Authority  to  purchase  a  site  and  erect  a  public 
building  thereon  is  not  appropriation  there- 
for.    (Act  Aug.  7,  1882,  22  Stat.,  305.) 


I.  Effect  of  Section. 
II.  What  Lands  Included, 

III.  Validity  of  Title. 

IV.  Consent  of  Legislature. 

V.  Jurisdiction  of  the  United  States. 
VI.  Jurisdiction,  Naval  Reservations. 
VII.  Miscellaneous. 


I.  Effect  of  Section. 

It  is  clear  this  section  was  drafted  with 
a  view  to  the  language  of  the  Constitu- 
tion, Article  I,  section  8,  clause  17,  although 
section  355  says  nothing  about  a  cession  of  jmis- 
diction.     (26  Op.  Atty.  Gen.,  12.) 

This  section  demands  that  a  transfer  of  juris- 
diction, in  order  to  satisfy  its  requu'ements, 
must  be  coextensive  with  that  contemplated 
by  the  Constitution.  (20  Op.  Atty.  Gen., 
611.) 

The  prohibition  seems  to  be  against 
expenditures  for  improvements  or  struc- 
tures upon  land  purchased,  that  is,  aheady 
acquired,  by  the  Government  until  the  con- 
sent is  obtained,  and  not  against  the  expendi- 
ture of  money  for  the  purchase  of  the  land. 
Section  1838,  Revised  Statutes,  appears  to  con- 
template, as  something  permissible  under  the 
existing  law,  that  land  may  be  purchased  for  the 
Government  without  the  consent  of  the  State 
thereto  previously  being  given.  (15  Op.  Attv. 
Gen.,  212.) 

The  payment  of  the  purchase  money 
for  land  before  the  consent  of  the  legislature 
of  the  State  is  given  to  the  purchase  is  not  for- 
bidden by  the  law  embodied  in  this  section; 
but  it  does  prohibit  the  expenditure  of  public 
money  upon  the  improvement  of  the  land  by 
the  erection  of  needful  buildings  thereon  until 
consent  is  given  to  the  purchase.  (10  Op. 
Atty.  Gen.,  34;  15  Op.  Atty.  Gen.,  212;  3  Comp. 
Dec,  530;  17  Comp.  Dec,  242;  Op.  Atty.  Gen., 
Mar.  3,  1908,  file  7101-6.  Seebelow,  "Validity 
of  title.") 

The  Government  has  tied  its  own  hands 
if  the  State  legislature  for  any  or  no  assigned 
reason  withholds  its  consent  to  a  purchase  of 
the  site.  It  may  purchase  and  hold  the  land, 
yet  it  can  not  spend  a  dollar  of  money  upon  the 


site  for  the  erection  of  the  necessary  buildings 
thereon.     (10  Op.  Atty.  Gen.,  34.) 

The  public  money  expended  on  such 
places,  and  the  jiublic  properly  deposited  in 
them,  require  that  they  shall  be  exempt  from 
the  authority  of  the  particular  State.  Nor 
would  it  be  proper  for  the  places  on  which  the 
security  of  the  entire  Union  may  depend  to  be 
in  any  degree  dependent  on  a  particular  mem- 
ber of  it.  (Fort  Leavenworth  R.  R.  Co.  v. 
Lowe,  114  U.  S.,  525,  quoting  the  Federalist.) 

It  is  at  the  option  of  every  State  to  give 
or  withhold  its  consent  at  its  own  pleasure. 
The  United  States  has  no  power  and  ought  not 
to  have  a  desire  to  compel  a  State  to  cede  ex- 
clusive jurisdiction  over  any  part  of  its  soil. 
(10  Op.  Atty.  Gen.,  34.) 

Congress  can  not  acquire  or  assert  ex- 
clusive jimsdiction  over  any  part  of  the  terri- 
tory of  a  State  without  the  consent  of  the  State 
legislature.  Hence  before  such  jurisdiction  can 
become  vested  in  the  United  States  the  consent 
of  the  legislature  of  the  State  must  be  obtained, 
notwithstanding  an  enactment  of  Congress  that 
upon  purchase  of  real  estate  suitable  and  neces- 
sary for  the  purposes  of  the  act  the  fee  simple 
shall  "be  vested  in  the  United  States  and  its 
jurisdiction  over  said  real  estate  shall  be  ex- 
clusive and  the  same  as  its  jurisdiction  over 
real  estate  purchased,  ceded,  or  appropriated 
for  the  purposes  of  navv  yards,  forts,  and 
arsenals."  (13  Op.  Atty.^Gen.,  131.  See  In 
re  Kelly,  71  Fed.  Rep.,  545;  see  also  sec.  4882, 
R.  S.) 

Where  compensation  has  been  paid  for 
land  without  consent  of  the  legislature  of 
the  State  to  its  acquisition,  the  proper  course 
to  be  pursued  is  for  the  head  of  the  department 
to  apply  to  such  legislatiu'e  for  its  consent.  (13 
Op.  Atty.  Gen.,  131.     See  also  sec.  1838,  R.  S.) 

II.  "What  Lands  Included. 

This  section  includes  lands  located 
under  navigable  waters  of  the  United  States, 
to  be  used  as  a  site  for  a  Ughthouse  for  the  es- 
tablishment of  which  provision  is  made  by 
statute.  Accordingly,  it  is  not  competent  for 
the  Lighthouse  Board  to  erect  a  structure  on 
such  site  until  title  thereto  has  been  obtained 
by  the  Government.     (16  Op.  Atty.  Gen.,  369.) 

Lands  acquired  by  condemnation. — This 
law  refers  only  to  lands  to  be  purchased  by  the 
United  Sta,tes,  and  does  not  apply  to  a  case 
where  the  law  contemplates -not  only  purchase 
but  appropriation  under  the  right  of  eminent 
domain.  (13  Op.  Atty.  Gen.,  131,  134;  23 
Comp.  Dec,  53,  56.) 

In  common  parlance  "purchase"  imports 
the  buying  of  property  by  contract,  and  there- 
fore woul(i  not  include  the  case  of  acquisition 
by  statute  or  by  condemnation  and  expropria- 
tion. But  the  legal  meaning  of  "purchase" 
applied  to  real  estate  goes  much  beyond  this, 
for  the  phrase  "title  by  purchase"  is  often  em- 
ployed to  embrace  all  the  forms  of  acquisition 
except  that  by  "descent."  WTien  accurately 
defined,  the  distinction  is  between  titles  ac- 
quired through  some  agreement  or  other  act  of 
the  party  acquiring,  which  is  "purchase;"  and 
titles  acquired  by  the  mere  devolution  of  law 
without  any  act  of  the  party,  which  is  "de- 


284 


Justice  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  365. 


scent."  Undoubtedly  title  acc^iiired  by  the 
United  States  by  expropriation  is  "purchase" 
within  the  scope  of  this  section,  such  as,  if  done 
in  strict  accordance  with  the  form  of  the  statute, 
may  be  certified  by  the  Attorney  General  as 
vesting  a  valid  title  in  the  United  States. 
(7  Op.  Atty.  Gen.,  114,  121.) 

Lands  acquired  by  donation. — The  word 
"purchased  "  does  not  include  lands  or  interests 
in  lands  acquired  by  the  United  States  without 
consideration  or  for  a  mere  nominal  sum;  and 
such  cases  are  not  included  within  the  terms  of 
section  355.     (28  Oji.  Atty.  Gen.,  413. )_ 

Under  the  law  now  embodied  in  section  355, 
Kevised  Statutes,  before  any  money  could  law- 
fully be  expended  upon  land  donated  to  the 
United  States  it  would  be  necessary  to  obtain  a 
cession  of  jiuisdiction  from  the  State.  (13  Op. 
A.tty.  Gen.,  465.) 

The  ceding  of  land  by  a  State  to  the  United 
States  probably  constitutes  a  "purchase" 
thereof  by  the  United  States  in  the  broad  sense 
of  that  word.  (U.  S.  v.  Tucker,  122  Fed.  Rep., 
518.) 

If  the  site  were  acquired  by  donation,  section 
355  would  require  the  opinion  of  the  Attorney 
General  in  favor  of  the  validity  of  the  title 
before  any  money  could  be  expended  thereon. 
(5  Comp.  Dec,  682.) 

Where  land  is  donated  to  the  United  States 
for  the  purpose  of  a  site  for  a  certain  public 
building,  for  the  construction  of  which  an  appro- 
priation has  been  made  by  Congress,  the  consent 
of  the  legislature  of  the  State  to  the  grant  is 
required  by  section  355  before  any  part  of  the 
appropriation  can  be  laArfully  expended  in  the 
erection  of  the  building.  (16  Op.  Atty.  Gen., 
414.) 

Land  rented  to  the  United  States,  to  be 
used  temporarily  as  a  camp,  is  not  a  "place" 
within  the  terms  of  the  Constitution,  over  which 
the  United  States  have  "sole  and  exclusive 
jurisdiction."  (U.  S.  v.  Tiemey,  28  Fed.  Cas. 
No.  16517.) 

Neither  section  355  nor  section  1136,  Revised 
Statutes,  applies  to  the  erection  of  public  build- 
ings or  other  structures  upon  land  leased  to  the 
United  States.  By  their  terms  they  are  restrict- 
ed to  the  expenditure  of  public  money  upon  or  in 
connection  with  land  purchased  by  the  United 
States  for  the  erection  of  such  buildings  or 
structures.  (6  Comp.  Dec,  877.  See  below, 
"  Lands  acquired  in  foreign  country." 

The  law  embodied  in  this  section  con- 
templates purchases  of  lands  for  all  pubHc 
purposes  and  establishes  as  a  general  rule 
applicable  to  them  that  no  public  money  shall 
be  expended  in  the  purchase  until  the  opinion 
of  the  Attorney  General  on  the  validity  of  the 
title  shall  be  obtained  and  the  consent  of  the 
legislature  of  the  State  in  which  the  lands  are 
situated  is  given.  (13  Op.  Atty.  Gen.,  131, 133; 
but  see  above,  "Effect  of  section.") 

Locks  and  dams. — The  cases  seem  to  leave 
no  doubt  that  the  broadest  construction  has 
been  wisely  put  upon  the  language  of  the 
Constitution,  "for  the  erection  of  forts,  maga- 
zines, arsenals,  dockyards,  and  other  needful 
buildings,  "a  construction  which  makes  it  cover 
all  structures  and  all  places  necessary  for  carry- 
ing on  the  business  of  the  National  Government. 
Specifically  held  to  include  locks  and  dams. 


(U.  S.  V.  Tucker,  122  Fed.  Rep.,  518;  but  see  In 
re  Kelly,  71  Fed.  Rep.,  545.) 

A  lock  and  dam  to  be  erected  by  the  War 
Department,  not  a  public  building  within  the 
meaning  of  this  section,  and  may  be  erected  on 
land  belonging  to  the  United  States  although 
consent  of  the  legislature  to  the  purchase  has 
not  been  given.     (6  Comp.  Dec,  843.) 

The  erection  of  a  monument  from  an 
appropriation  under  the  War  Department  is  not 
included  in  this  section.  Not  necessary  that 
title  to  the  land  should  be  conveyed  to  the 
United  States.  (6  Comp.  Dec,  791.)  [In  this 
case  the  Attorney  General  had  decided  that  a 
deed  to  such  land  "vests  in  the  United  States  a 
valid  title,"  but  the  Comptroller  decided  there 
was  no  authority  to  purchase  the  land  and  pay- 
ment therefor  could  not  be  made.] 

Wharf  not  public  building. — The  term 
"building"  in  its  broadest  sense  includes  any 
artificial  structure  erected  on  land,  but  it  is 
not  used  in  this  broad  sense  in  the  statutes 
relating  to  pubUc  buildings  under  the  control 
of  the  Treasury  Department  (citing  6  Comp. 
Dec,  877).  A  wharf,  however  extensive  or 
permanent  in  its  nature,  can  not  properly  be 
regarded  as  a  pubUc  building  within  such 
statutes,  which  contemplate  only  such  build- 
ings as  are  designed  for  occupation  by  Govern- 
ment officials  or  for  use  in  affording  shelter  to 
and  protection  of  movable  pubhc  property.  (7 
Comp.  Dec,  533,  distinguishing  a  contrary  de- 
cision of  the  First  Comptroller,  May  22,  1894.) 

Land  acquired  for  construction  of  irriga- 
tion works. — This  section  does  not  apply  as  to 
manner  in  which  the  validity  of  title  to  lands 
acquired  by  the  Secretary  of  the  Interior  under 
the  act  June  17,  1902  (32  Stat.,  388),  shall  be 
evidenced.  Question  of  validity  of  title  is 
one  for  the  determination  of  the  Secretary  of  the 
Interior,  whose  decision  has  the  same  force  as 
would  an  opinion  of  the  Attorney  General 
under  this  section,  and  is  conclusive  on  the 
accounting  oQicers.  (12  Comp.  Dec,  691, 
citing  letter  of  Acting  Attorney  General.) 

Land  for  use  of  militia. — The  purchase  of 
property  for  shooting  galleries  and  target  ranges 
in  the  several  States  and  Territories  and  the 
District  of  Columbia  is  made  upon  the  recom- 
mendation of  the  governors  of  the  States  or 
Territories  or  the  commanding  general  of  the 
District  of  Columbia,  approved  by  the  Secretary 
of  War.  The  title  to  the  property  is  convej^ed 
to  and  vested  in  the  United  States.  Before 
payment  for  the  same  is  made,  the  title  must 
be  approved  by  the  Attorney  General  of  the 
United  States  as  required  by  this  section,  to 
whom  all  necessary  papers  to  prove  title  shall 
be  transmitted  by  the  Secretary  of  War.  The 
relation  of  the  States  and  Territories,  and  Dis- 
trict of  Columbia  to  such  property  is  that  of 
trustees,  vested  with  the  use  and  charged  with 
the  administration  of  it  for  the  purpose  for 
which  it  is  acquired.     (17  Comp.  Dec,  242.) 

Lands  acquired  for  cemeteries. — ^The 
purposes  enumerated  in  the  law  now  embodied 
in  this  section  do  not  distinctly  embrace 
national  cemeteries.  Question  whether  such 
cemeteries  are  included,  not  decided.  (12  Op. 
Atty.  Gen.,  428.) 

Before  jurisdiction  over  a  national  cemetery 
can  become  vested  in  the  United  States  the 


285 


Sec.  355. 


Pt.  2.  REVISED  STATUTES. 


Justice  Department. 


consent  of  tho  lop^islatiiro  of  the  State  in  which 
the  cemetery  is  situated  must  be  obtained. 
(13  Op.  Atty.  Gen.,  131.) 

To  authorize  payment  for  land  appropriated 
for  the  purpose  of  a  national  cemetery,  the 
consent  of  the  lepiislature  of  the  State  in  which 
the  land  lies  is  not  necessary;  nor  in  such  case 
is  the  opinion  of  the  Attorney  General  as  to  the 
validity  of  the  title  required.  (13  Op.  Atty. 
Gen.,  131.) 

If  the  consent  of  the  legislature  of  a  State  in 
which  a  cemetery  is  situated  can  be  obtained, 
it  might  well  be  held  to  be  included  under  the 
terms  of  the  constitutional  provision  vesting 
exclusive  legislation  in  Congress.  (13  Op.  Atty. 
Gen.,  131.) 

See  section  4882,  Revised  Statutes,  providing 
for  exercise  of  exclusive  jurisdiction  by  the 
United  States  over  national  cemeteries  pur- 
chased with  consent  of  the  State. 

Temporary  building.— It  is  the  general 
policy  of  Congress  that  no  public  building  shall 
be  erected  on  ground  not  owned  by  the  United 
States.  But  a  small  temporary  building  for 
the  shelter  of  a  light  keeper  is  not  a  "public 
building"  within  the  meaning  of  sections  355 
and  1136,  Revised  Statutes.   (6  Comp.  Dec,  877.) 

Lands  acquiredfor  temporary  purpose. — 
In  practice  the  requirements  of  section  355 
have  not  been  regarded  as  applicable  to  reser- 
vations deemed  to  be  temporary  properties  of 
the  Government,  temporarily  used.  (Lee  v. 
Kaufman,  15  Fed.  Cas.,  191.  See  also  U.  S.  v. 
World's  Columbian  Exposition,  56  Fed.  Rep., 
630.) 

Lands  acquired  in  foreign  country. — 
The  word  "State"  as  used  in  this  section 
signifies  a  State  of  the  Union  and  has  no 
application  to  the  erection  of  improvements  to 
the  naval  hospital,  Yokohama,  Japan,  upon 
land  to  which  the  United  States  purchases  a 
lease  in  perpetuity,  subject  to  an  annual  rental 
to  the  Japanese  Government.  (26  Op.  Atty. 
Gen.,  12.) 

This  section  does  not  apply  to  the  purchase  of 
lands  with  buildings  thereon  at  Constantinople, 
Turkey,  since  no  erection  of  a  building  is  con- 
templated or  provided  for  by  the  appropriation 
for  such  purchase.     (26  Op.  Atty.  Gen.,  380.) 

The  provisions  of  this  section  are  not  applica- 
ble to  the  expenditures  authorized  by  the  act 
of  March  3,  1903  (32  Stat.,  1188),  for  the  erec- 
tion of  necessary  improvements  on  lands  at 
Guantanamo,  Cuba,  leased  by  the  United  States 
from  the  Republic  of  Cuba  for  the  purposes  of  a 
naval  station.     (25  Op.  Atty.  Gen.,  160.) 

III.  Validity  of  Title. 

Attorney  General  must  certify  title 
before  purchase. — The  contract  of  a  head  of 
department  to  purchase  land  can  not  be  carried 
out  unless  the  Attorney  General  shall  examine 
the  title  and  certify  to  its  validity.  Property 
bargained  for  by  the  Government  is  always  to 
be  taken  and  paid  for  if  the  title  shall  be 
pronounced  valid  by  the  Attorney  General  and 
not  otherwise.  This  law  enters  into  and  forms 
part  of  every  such  contract.  (9  Op.  Atty. 
Gen.,  100.) 

Under  this  section  it  has  been  held  that  no 
money  can  be  expended  for  the  purchase  of 


land  until  the  Attorney  General's  opinion  as 
to  the  validity  of  the  title  has  been  given 
(citing  10  Op.  Atty.  Gen.,  353,  354);  although 
it  has  been  held  that  such  purchase  can  be 
made  ni>t\vithstanding  the  consent  of  the  legis- 
lature thereto  has  not  been  given.  (3  Comp. 
Dec,  531,  citing  10  Op.  Atty.  Gen.,  35;  15  Op. 
Atty.  Gen.,  212;  4  Lawrence's  Comp.  Dec, 
152.) 

This  section  prohibits  payment  for  land  to 
be  used  for  the  purposes  therein  enumerated 
until  the  Attorney  General  shall  have  certified 
as  to  the  validity  of  the  title.  It  was  also 
intended  to  make  the  opinion  of  the  Attorney 
General  conclusive  upon  that  question.  The 
Comptroller  has  not  jurisdiction  to  pass  upon 
question  of  payment  until  written  opinion  of 
Attorney  General  has  been  had  in  favor  of  the 
validity  of  the  title.     (3  Comp.  Dec,  195.) 

See  above,  "I.  Effect  of  Section." 

If  title  bad,  purchase  can  not  be  com- 
pleted.— Where  the  Attorney  General  has 
officially  refused  to  certify  the  title,  the  head 
of  the  department  through  which  the  negotia- 
tion is  conducted  ought  at  once  to  declare  the 
contract  rescinded;  and  when  he  does  so,  the 
end  of  that  contract  has  come.  It  can  have  no 
more  force  afterwards  than  if  it  had  never 
been  made.     (9  Op.  Atty.  Gen.,  100.) 

Section  355,  Revised  Statutes,  forbids  the 
acquisition  of  real  estate  by  the  Government  for 
any  permanent  military  purpose  until  a  perfect 
legal  title  and  cession  of  State  jurisdiction  shall 
first  have  been  obtained.  (Lee  v.  Kaufman,  15 
Fed.  Cas.,  191.) 

If  title  good,  purchase  must  be  com- 
pleted.—Where  the  head  of  a  department 
under  authority  of  an  act  of  Congress  made  a 
contract  for  the  purchase  of  land  which  stipu- 
lated for  payment  of  the  agreed  price  when  the 
Attorney  General  approved  the  title  and  the 
conveyance  was  executed,  held  that,  after  the 
execution  of  the  deed  by  the  vendors  and  the 
Attorney  General  certified  that  a  valid  title 
to  the  land  had  been  thereby  vested  in  the 
United  States,  the  head  of  the  department  had 
no  power  to  make  any  new  contract  of  purchase 
for  the  same  or  other  property,  and  the  vendors 
were  entitled  to  receive  the  purchase  money. 
(10  Op.  Atty.  Gen.,  34.) 

Duty  of  the  Attorney  General. — This  law 
does  not  require  the  Attorney  General  to  in- 
quire into  and  report  upon  the  fact  or  question, 
whether  the  State  in  which  the  land  lies  has 
consented  to  the  purchase.  That  was  supposed 
to  be  a  patent  fact  which  needed  no  examina- 
tion; yet  it  is  obvious  that  difficulties  may 
arise  upon  that  point  of  fact,  requiring  a  nice 
and  hypercritical  examination  of  the  State's 
act  of  consent,  which  is  often  incumbered  with 
conditions  and  reservations.  (10  Op.  Atty. 
Gen.,  34.) 

The  Attorney  General,  in  certifying  the  title 
of  land  purchased  by  the  Government,  must 
look  at  the  question  as  one  of  pure  law,  and 
can  not  relax  the  rule  on  account  either  of  de- 
sirableness of  the  object  or  the  smallnessof  the 
value  of  the  land.  (6  Op.  Atty.  Gen.,  432.)  The 
validity  of  titleis  a  question  of  law.  (12  Comp. 
Dec,  691.) 

When  the  Attorney  General,  in  passing  upon 
the  validity  of  titles  to  property  purchased  by 


286 


Justice  Depaxtment. 


Pt.  2.  REVISED  STATUTES. 


Sec.  360. 


the  United  States,  certifies  that  the  title  will  be 
good  upon  the  release  of  certain  mortgages,  it  is 
proper  that  the  sufiiciency  of  the  releases  should 
be  decided  by  him,  and  not  by  the  Comptroller 
of  the  Treasury  upon  the  question  of  payment 
for  the  land.     (1  Comp.  Dec,  348.) 

Where  question  is  submitted  to  the  Comptrol- 
ler of  the  Treasury  as  to  legality  of  a  proposed 
payment  for  certain  buildings  and  outfit,  but 
back  of  the  question  of  expenditure  of  the 
money  is  that  of  the  acquisition  of  the  site,  this 
involves  questions  of  law  unconnected  with  any 
expenditure  of  public  moneys,  and  hence  not 
within  the  comptroller's  jurisdiction.  There- 
fore suggested  that  the  opinion  of  the  Attorney 
General  should  be  obtained  upon  the  primary 
question  involved  in  the  acquisition  of  the  site. 
(5  Comp.  Dec,  682.  But  see  6  Comp.  Dec, 
791.) 

Regardless  of  whether  this  section  be 
applicable  or  not,  the  validity  of  titles  to 
lands  proposed  to  be  acquired  should  be  sub- 
mitted to  the  Attorney  General  as  a  wise  pre- 
caution, before  erecting  structures  thereon.  (28 
Op.  Atty.  Gen.,  413,  463.) 

Though  the  opinion  of  the  Attorney  General 
is  not  required  in  a  particular  case  as  to  the 
validity  of  the  title,  as  a  prudential  measure, 
for  the  security  of  the  Government,  it  would 
seem  to  be  highly  expedient  to  obtain  his  opin- 
ion. (13  Op.  Atty.  Gen.,  131.  But  see  12 
Comp.  Dec,  691.) 

Lands  incumbered  by  outstanding 
liens. — There  is  nothing  in  this  law  that  forbids 
the  j)urchase  of  land  incumbered  by  outstand- 
ing liens  which  have  not  yet  matured;  but  in 
such  case  the  department  making  the  purchase 
should  stipulate  with  the  vendors  that  the 
amount  of  the  purchase  money  necessary  to  pay 
off  the  incumbrances  shall  be  withheld  until 
they  are  due,  when,  if  they  are  discharged  by 
the  vendors  the  purchase  money  so  withheld 
shall  be  paid,  or  if  not  then  discharged  by  the 
vendors,  that  the  retained  purchase  money 
shall  be  applied  by  the  Government  to  their 
payment.     (10  Op.  Atty.  Gen.,  353.) 

There  is  no  law  which  prohibits  the  United 
States  from  purchasing  property  incumbered 
by  liens.  (12  Comp.  Dec,  691,  697.  See  also 
1  Comp.  Dec,  348.) 

IV.  Consent  of  Legislature. 

Consent  of  constitutional  convention 
not  sufBLcient. — An  ordinance  passed  by  the 
constitutional  convention  of  a  State,  purporting 
to  cede  jurisdiction  over  land  purchased  by  the 
United  States,  is  not  a  consent  to  the  purchase 
by  the  legislature  of  the  State,  within  the  sense 
of  the  Constitution  and  this  section.  Such  a 
body  is  not  "the  legislature  of  the  State."  (12 
Op.  Atty.  Gen.,  428.) 

Consent  to  use  of  land  not  consent  to 
purchase. — The  provisions  of  this  section  are 
not  satisfied  by  an  act  which  contains  neither 
an  assent  to  the  purchase  nor  a  grant  of  juris- 
diction. It  merely  gives  the  consent  of  the 
State  to  the  use  of  the  land  for  a  specific  pur- 
pose, which  consent  is  declared  to  be  "as  pro- 
vided in  the  16th  clause  of  the  8th  section  of 
the  1st  article  of  the  Constitution  of  the  United 
States  and  in  the  acta  of  Congress  in  such  case 
made  and  provided."    I  find  nothing  in  that 


clause  of  the  Constitution  which  is  applicable 
to  the  subject,  and  am  unable  to  determine 
what  particular  statute  is  referred  to  by  the 
words  "acts  of  Congress  in  such  case  made  and 
provided."  (13  Op.  Atty.  Gen.,  460;  compare 
file  14560-174,  Apr.  19,  1916,  with  reference  to 
statute  of  Illinois  in  which  same  error  was 
made.) 

Consent  not  necessary  before  pur- 
chase.— There  is  nothing  in  the  Constitution 
nor  in  this  section  which  prohibits  the  United 
States  purchasing  land  within  a  State  without 
the  consent  of  the  State  legislature;  but  when 
land  is  purchased  by  them  in  a  State  without 
such  consent,  the  United  States  can  not  exer- 
cise "exclusive  legislation"  over  the  place. 
(10  Op.  Atty.  Gen.,  34;  15  Op.  Atty. Gen., 212; 
3  Comp.  Dec,  530.  Compare  Lee  v.  Kaufman, 
15  Fed.  Cas.,  191.) 

The  Comptroller  of  the  Treasury  will  not 
render  a  decision  as  to  the  sufficiency  of  a 
general  statute  of  a  State  consenting  to  pur- 
chases of  lands  by  the  United  States  when  it 
appears  that  purchase  of  the  particular  land  in 
question  had  not  been  authorized  by  Congress, 
as  required  by  section  3736,  Revised  Statutes, 
(7  Comp.  Dec,  524.) 

Consent  necessary  before  improvements 
are  made. — Under  this  section,  no  money  can 
be  expended  upon  the  lands  mentioned  therein, 
for  any  purpose  whatever,  until  consent  of  the 
legislature  has  been  given.  It  is  hardly  to  be 
presumed  that  Congress  would  authorize  the 
expenditure  of  money  for  the  preparation  of  a 
lot  for  the  erection  of  a  building  and  not  for  the 
erection  of  the  building  itself.  (3  Comp.  Dec, 
530.  See  also  10  Op.  Atty.  Gen.,  34;  15  Op.  Atty. 
Gen.,  212;  17  Comp.  Dec,  242.) 

Consent  sufficient  although  certain 
rights  reserved. — In  acts  of  the  different 
State  legislatures  giving  consent  to  the  pur- 
chase of  land  by  the  United  States,  as  well  as 
in  their  acts  expressly  ceding  jurisdiction  over 
such  lands,  it  is  usual  to  reserve  to  the  State 
the  right  to  serve  on  the  land  purchased  its  civil 
and  criminal  process,  and  a  reservation  of  juris- 
diction to  that  extent  has  always  been  regarded 
as  consistent  with  the  requirements  of  the  pro- 
vision in  section  355.  (20  Op.  Atty.  Gen.,  611; 
23  Op.  Atty  Gen.,  254;  24  Op.  Atty.  Gen.,  617; 
Railroad  Co.  v.  Lowe,  114  U.  S.,  525.) 

Where  law  of  State  contains  a  proviso  that  all 
civil  and  criminal  process  issued  under  author- 
ity of  the  State  or  any  oflicer  thereof  may  be 
executed  on  the  lands  so  ceded,  and  within  the 
fortifications  which  may  be  erected  thereon,  in 
the  same  way  and  manner  as  if  such  lands  had 
not  been  ceded,  such  process  must,  of  course, 
be  for  acts  done  within  and  cognizable  by  the 
State.  It  can  not  be  inferred  from  such  proviso 
that  it  was  intended  that  the  State  should  have 
a  right  to  punish  for  acts  done  within  the  ceded 
lands.  The  whole  apparent  object  is  answered 
by  considering  the  clause  as  meant  to  prevent 
these  lands  from  becoming  a  sanctuary  for  fugi- 
tives from  justice  for  acts  done  within  the 
acknowledged  jurisdiction  of  the  State.  This 
proviso  leaves  the  sole  and  exclusive  jurisdic- 
tion of  the  lands  in  question  in  the  United 
States.  (U.  S.  v.  Cornell,  25  Fed.  Cas.  No. 
14867,  per  Story,  Circuit  Justice;  U.  S.  v. 
Meagher,  37  Fed.  Rep.,  875;  U.  S.  v.  Travere, 


287 


Sec.  366. 


PL  2.  REVISED  STATUTES. 


Justice  Departraent. 


28  Fed.  Cas.  No.  16537;  U.  S.  v.  Davis,  25  Fed. 
Cas.  No.  14930,  cited  in  Lasher  v.  State,  30 
Tex.  App.,  387,  17  S.  W.,  1065;  Sinks?-.  Reese, 
19  Ohio  St.,  318.) 

The  reservation  which  haa  usually  accom- 
panied the  consent  of  the  States,  that  civil  and 
criminal  process  of  the  State  courts  may  be 
served  in  the  places  purchased,  is  not  considered 
as  interfering  in  any  respect  with  the  supremacy 
of  the  United  States  over  them;  but  is  admitted 
to  prevent  them  from  becoming  an  asylum  for 
fugitives  from  justice.  (Fort  Leavenworth  R. 
R.  Co.  V.  Lowe,  114  U.  S.,  525.) 

The  expression  reserving  to  the  State  its 
jurisdiction,  so  far  as  to  have  a  right  to  execute 
all  civil  and  criminal  process  lawfully  issued 
under  the  authority  of  the  State,  means,  as 
raav  not  be  incompatible  with  Federal  juris- 
diction.    (7  Op.  Atty.  Gen.,  628,  632.) 

An  act  providing  that  "nothing  herein  con- 
tained shall  be  so  construed  as  to  prevent  the 
officers  of  this  State  from  executing  any  process 
xvhatever  within  the  jurisdiction  hereby  directed 
to  be  ceded  to  the  United  States,"  must  be 
understood  to  embrace  only  such  process  as 
may  lawfully  run  Avithin  such  premises, 
notwithstanding  and  without  derogation  of  or 
conflict  with  the  juriBdiction  acquired  by  the 
United  States.     (7  Op.  Atty.  Gen.,  628,  635.) 

By  legislative  as  well  as  judicial  construction 
the  right  retained  by  States  to  serve  civil  and 
criminal  process  has  been  regarded  as  con- 
sistent with  exclusive  Federal  jurisdiction. 
This  is  shown  by  act  March  2, 1795  (1  Stat.,  426), 
providing  that  "Where  cessions  have  been  or 
hereafter  may  be  made  by  any  State  of  juris- 
diction of  places  where  lighthouses,  beacons, 
buoys,  or  public  piers  have  been  erected  and 
fixed  or  may  by  law  be  provided  to  be  erected 
or  fi.xed,  with  reservation  that  process,  civil 
and  criminal,  issuing  under  the  authority 
of  such  State  may  be  executed  and  served 
therein,  such  cessions  shall  be  deemed  sufficient 
under  the  laws  of  the  United  States  providing 
for  the  supporting  or  erecting  of  lighthouses, 
beacons,  buoys,  and  public  piers.  *  *  * 
Where  any  State  hath  made  or  shall  make  a 
cession  of  jurisdiction  for  the  purposes  afore- 
said without  reservation,  all  process,  civil  and 
criminal,  issuing  under  the  authority  of  such 
State  or  the  United  States  may  be  served  and 
executed  within  the  places  the  jurisdiction  of 
which  has  been  so  ceded,  in  the  same  manner 
as  if  no  such  cession  had  been  made."  (9  Op. 
Atty.  Gen.,  263.) 

Consent  insufficient  where  reservations 
incompatible  with  Federal  juiisdiction. — 
The  settled  construction  of  the  Department  of 
Justice  is  that  the  "consent"  of  the  legisla- 
ture of  a  State  to  the  purchase  of  lands  therein 
by  the  United  States,  required  by  section  355, 
Revised  Statutes,  must  be  free  from  any  condi- 
tions or  reservations  inconsistent  with  the  exer- 
cise by  Congress  of '  'exclusive  legislation ' '  there- 
over.    (24  Op.  Atty.  Gen.,  617.) 

It  is  manifest  that  a  reservation  to  the  State 
of  the  right  to  administer  its  criminal  laws  in  the 
place  purchased,  is  inconsistent  with  the 
exercise  of  "exclusive  legislation"  thereover 
by  Congress,  as  it  leaves  to  the  State  the  cog- 
nizance of  offenses  against  its  laws  committed 


thereon  as  fully  as  the  same  existed  before 
such  acquisition.     (24  Op.  Atty.  Gen.,  617.) 

A  condition  that,  "if  the  purposes  of  this 
grant  should  cease,  or  there  should  be  for  five 
years  consecutively  a  failure  upon  the  part  of 
the  United  States  to  use  the  said  place  for  any 
of  the  purposes  afore.said,  then  the  jurisdiction 
hereby  granted  shall  cease  and  determine," 
is  not  objectionable.     (7  Op.  Atty.  Gen.,  628.) 

WTiere  a  State's  consent  to  the  purchase  of 
land  by  the  United  States  provides  that  the 
State 'shall  forever  retain  concurrent  jurisdic- 
tion over  any  such  place  to  the  extent  that  all 
legal  and  military  process  issued  under  the  au- 
thority of  the  State  may  be  executed  any- 
where on  such  place  or  in  any  building  thereon 
or  any  part  thereof,  and  that  any  offense  against 
the  laws  of  the  State  committed  on  such  place 
may  be  tried  and  punished  by  any  competent 
court  or  magistrate  of  the  State,  it  does  not 
satisfy  the  provisions  of  section  355,  Revised 
Statutes  (20  Op.  Atty.  Gen.,  611,  quoting  and 
following  8  Op.  Atty.  Gen.,  419,  holding  that  it  is 
impossible  to  allow  the  courts  of  the  State 
jurisdiction  of  crimes  committed  on  such  sites, 
to  the  exclusion  of,  or  even  in  concurrence  with, 
the  proper  jurisdiction  of  the  United  States. 
But  see  file  7101-10,  Apr.  17,  1908,  authorizing 
expenditures  of  public  moneys  on  improve- 
ments at  naval  proving  ground,  Indianhead, 
Md.,  although  the  State  expressly  retained 
jurisdiction  to  execute  its  criminal  process 
therein  against  persons  charged  with  offenses 
committed  "within  or  without"  the  limits  of 
said  lands.  See  below,  "VI.  Jurisdiction  Naval 
Reservations.") 

As  the  State's  consent  "is  coupled  with  an 
express  retention  of  jurisdiction  over  offenses 
against  its  laws  committed  on  the  premises, 
this  qualification  of  the  consent  is  such  as,  in 
my  opinion,  renders  it  insufficient  to  satisfy 
that  provision,"  viz,  section  355,  Revised  Stat- 
utes.    (20  Op.  Atty.  Gen.,  611.) 

I  should  hesitate  to  advise  the  United  States 
to  accept  a  cession  which  in  terms  reserved  the 
full  concurrent  jurisdiction  of  the  State  in 
order  to  guard  against  controversy  as  to  whether 
the  consent  would  be  legally  inoperative,  or 
whether  the  condition  and  reservation  would 
be  void,  or  whether  the  jurisdiction  would  be 
deemed  concurrent.     (7  Op.  Atty.  Gen.,  628.) 

Effect  of  consent  coupled  with  incom- 
patible reservation. — It  is  not  perfectly 
clear  from  the  authorities  what  is  the  effect  of 
such  a  reservation;  that  is,  whether  the  consent 
expressed  would  be  legally  [in]operative,  or 
the  reservation  alone  void.  (24  Op.  Atty. 
Gen.,  617.) 

If  the  legislative  act  of  the  State  wherein  the 
land  lies  amounts  to  a  consent  to  the  purchase 
of  the  property  by  the  United  States,  any  ex- 
ceptions, reservations,  or  qualifications  con- 
tained in  the  act  are  void,  because  the  consent 
being  given  by  the  legislature  the  Constitution 
vests  in  Congress  exclusive  legislation  over  the 
place,  beyond  the  reach  both  of  Congress  and 
the  legislature.  If  the  act  does  not  amount 
to  a  consent  to  the  purchase,  it  is  null.  (10  Op. 
Atty.  Gen.,  34.) 

If  the  State  had  simply  passed  an  act  con- 
senting to   the    purchase,    the   constitutional 


288 


Justice  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  855. 


consequences  would  certainly  have  ensued 
and  jurisdiction  might  have  been  assumed. 
As  it  is,  however,  the  conclusion  seems  to  me 
questionable.  The  declared  retention  of  juris- 
diction is  an  express  qualification  of  the  assent, 
and  such  a  qualification  as  causes  it  to  fail  to 
satisfy  the  act  of  Congress,  if  it  does  the  Con- 
stitution. (8  Op.  Atty.  Gen.,  102;  see  also  8 
Op.  Atty.  Gen.,  30.) 

There  is  a  clear  distinction  between  acts  in 
which  the  reserv^aticn  of  jurisdiction  is  made  an 
express  condition  of  the  consent,  and  an  act 
which  unequivocally  expresses  the  consent  of 
the  legislature  and  does  not  make  any  objec- 
tionable reservation  which  may  contain  an 
absolute  and  inseparable  condition  of  the 
consent.  In  the  former  case  it  has  been  de- 
cided that  such  consent  does  not  satisfy  the  law 
(citings  Op.  Atty.  Gen.,  102;  8  Op.  Atty.  Gen., 
418;  20  Op.  Atty.  Gen.,  611).  In  the  latter  case, 
there  seems  to  be  no  good  reason  for  holding  that 
the  reservation  invalidates  the  entire  act.  (24 
Op.  Atty.  Gen.,  617.) 

Where  the  consent  of  the  legislature  to  the 
purchase  or  condemnation  of  lands  within  the 
State  by  the  United  States  for  public  purposes 
is  plainly  and  unequivocally  given,  and  there 
is  nothing  whatever  in  any  other  part  of  the  act 
to  indicate  that  the  reservation  of  jurisdiction 
which  it  contains  is  made  an  express  condition  of 
the  consent,  the  act  may  be  taken  as  satisfying 
the  requirements  of  section  355,  Revised  Stat- 
utes, and  no  further  cession  of  jurisdiction  is 
legally  required.     (24  Op.  Atty.  Gen.,  617.) 

It  may  well  be  doubted  whether  Congress  is, 
by  the  terms  of  the  Constitution,  at  liberty  to 
purchase  lands  for  forts,  dockyards,  etc.,  with 
the  consent  of  the  State  legislature,  where  such 
consent  is  so  qualified  that  it  will  not  justify  the 
exclusive  legislation  of  Congress  there.  It 
may  well  be  doubted  if  such  consent  be  not 
utterly  void.  (Fort  Leavenworth  R.  R.  Co.  v. 
Lowe,  114  U.  S.,  534,  quoting  U.  S.  v.  Cornell, 
2  Mason,  60,  25  Fed.  Cas.  No.  14867.) 

The  Executive  can  not  lawfully  expend 
money  on  a  site  for  public  uses,  purchased 
with  assent  of  the  State  in  wliich  it  lies,  if  such 
assent  be  coupled  with  express  refusal  of  the 
State  to  cede  jurisdiction  to  the  United  States. 
(8  Op.  Atty.  Gen.,  102;  seealsoSOp.  Atty.Gen., 
(30;  Op.  Atty.  Gen.,  Mar.  3, 1908,  file  7101-6.) 

In  order  to  guard  against  controversies, 
I  should  hesitate  to  advise  the  United  States  to 
accept  a  cession  wliich  in  terms  reserved  the 
full  concurrent  jurisdiction  of  the  State.  (7 
Op.  Atty.  Gen.,  628.) 

In  such  cases,  the  Government  would  enter 
upon  the  land  with  explicit  notice  of  contro- 
versy on  the  part  of  the  State.  Other  States 
might  follow  the  example,  greatly  to  the  in- 
convenience of  the  United  States.  (8  Op. 
Atty.  Gen.,  102;  see  also  8  Op.  Atty.  Gen.,  30.) 

If  any  conflicting  claims  of  jurisdiction  should 
arise  after  the  purchase  between  the  two 
Governments,  they  would  be  judicial  ques- 
tions.    (10  Op.  Atty.  Gen.,  34.) 

V.  Jurisdiction  of  the  United  States. 

Where    State    consents    to   purchase. — 

When  the  United  States  acquire  lands  within 


the  limits  of  a  State  by  purchase,  with  the 
consent  of  the  legislature  of  the  State,  for  the 
erection  of  forts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings,  the  Con- 
stitution confers  upon  them  exclusive  juris- 
diction of  the  tract  so  acquired.  (Fort  Leaven- 
worth R.  R.  Co.  V.  Lowe,  114  U.  S.,  525,  539; 
Chicago  &  Pacific  Ry.  Co.  v.  McGlinn,  114 
U.  S.,  542;  Benson  v.  U.  S.,  146  U.  S.,  325.) 

The  purchase  of  land  in  a  State  by  the  General 
Goverument,  with  legislative  consent,  does  not, 
ipso  facto  confer  upon  the  General  Govern- 
ment exclusive  jurisdiction,  unless  the  pur- 
chase is  for  a  fort  or  for  some  other  purpose 
distinctly  named  in  Article  I,  section  8,  of  the 
Constitution.     (In  re  Kelly,  71  Fed.  Rep.,  545.) 

Cession  of  jurisdiction  by  the  State  may  take 
place  in  two  ways;  indirectly,  by  an  act  of  the 
State  legislature  consenting  to  the  purchase  of 
the  lancl  by  the  United  States;  and  directly, 
by  an  act  of  the  State  legislature  granting  the 
jurisdiction  to  the  United  States.  (l3  Op.  Atty. 
Gen.,  460;  V.^.v.  Tucker,  122  Fed.  Rep.,  520.) 

It  is  thoroughly  settled  by  numerous  ad- 
judications that  all  such  Federal  jurisdiction 
as  the  Constitution  contemplates  is  acquired  by 
the  United  States  in  the  mere  consent  of  the 
State  to  the  purchase;  and  that  upon  such  con- 
sent the  jurisdiction  of  the  State  ceases  and  that 
of  Congress  comes  in,  by  virtue  of  the  Constitu- 
tion. _  (7  Op.  Atty.  Gen.,  628.) 

This  law  does  not  require  the  cession  of  juris- 
diction, exclusive  or  otherwise.  When  the 
legislature  consents  to  the  purchase,  the  Con- 
stitution provides  for  exercising  exclusive 
legislation,  which  is  full  jurisdiction,  over  all 
places  so  purchased  for  the  erection  of  dock- 
yards, etc.     (9  Op.  Atty.  Gen.,  129.) 

"  'Exclusive  legislation'  signifies  exclusive 
jurisdiction."     (6  Op.  Atty.  Gen.,  578.) 

Section  355  proliibits  the  expenditure  of 
money  only  upon  any  site  or  land  purchased  by 
the  United  States  until  the  written  opinion  of 
the  Attorney  General  shall  be  had  in  favor  of  the 
validity  of  the  title  and  until  the  consent  of  the 
legislature  of  the  State  in  which  the  land  or  site 
may  be  to  such  purchase  has  been  given.  It 
does  not  limit  the  expenditure  of  money  to 
cession  of  jurisdiction.  (Op.  Atty.  Gen., 
Mar.  3,  1908,  file  7101-6.) 

The  purchase  of  lands  by  the  United  States 
for  public  purposes  within  the  territorial  limits 
of  a  State  does  not  of  itself  oust  the  jurisdiction 
of  sovereignty  of  such  State  over  lands  so  pur- 
chased .  But  when  a  purchase  of  lands  for  any 
of  the  Constitutional  purposes  is  made  by  the 
National  Government,  and  the  State  le.gislature 
has  given  its  consent  to  the  purchase,  the  land 
so  purchased  by  the  very  terms  of  the  Constitu- 
tion, ipso  facto  falls  within  the  exclusive  legis- 
lation of  Congress,  and  the  State  jurisdiction 
is  completely  ousted.  Exclusive  jurisdiction 
is  the  necessary  attendant  upon  exclusive  leg- 
islation. (U.  S.  V.  Cornell,  25  Fed.  Cas.  No. 
14867,  per  Storj',  Circuit  Justice.) 

Where  the  State  consents  to  the  purchase, 
with  reservation  of  power  to  serve  civil  and 
criminal  process,  and  the  United  States  accepts 
such  condition,  it  follows  that  the  officers  of  the 
State,  in  executing  such  process,  act  under  the 
authority  of  the  United  States.     No  offenses 


289 


Sec.  366. 


Pt.2.  REVISED  STATUTES. 


Justice  Department. 


committed  within  the  territory  eo  purchased 
are  committed  iijiainft  the  laws  of  the  State,  nor 
can  such  offenses  be  punishable  by  the  courta 
of  the  State  unless  the  Congress  of  the  United 
States  should  give  said  courts  jurisdiction 
thereof.  (Commonwealth  v.  Clary,  8  Mass.,  72; 
U.  S.  r.Travers,  28  Fed.  Cas.  No.  16537;  file 
67G0-21,  July  in,  1911.) 

Where  jurisdiction  expressly  ceded. — 
The  law  from  which  section  355  is  taken  re- 
quired "the  consent  of  the  legislature"  and 
provaded  in  another  section  that  application 
should  be  made  to  the  State  for  "a  cession  of 
jurisdiction."  Thus  it  appears  that  Congress 
understood  "consent  to  the  purchase"  and 
"cession  of  jurisdiction"  as  concurrent,  if  not 
identical  facts,  and  rightfully.  (7  Op.  Atty. 
Gen.,  628.) 

It  has  become  usual  in  the  action  of  the  legis- 
latures of  the  States  in  these  cases  not  to  stop  at 
consent  to  the  purchase,  but  to  add  cession  of 
jurisdiction  in  express  terms,  but  most  fre- 
quently with  reservation  of  certain  concurrent 
jurisdiction  to  the  State.  (7  Op.  Atty.  Gen., 
628;  9  Op.  Atty.  Gen.,  129.) 

The  effect  of  all  such  actions  is  to  confer  on 
the  United  States  the  whole  jurisdiction  of  the 
Constitution — that  is,  rights  of  Federal  legisla- 
tion coextensive  with  the  subject  matter.  (7 
Op.  Atty.  Gen.,  628;  U.  S.  v.  Carter,  84  Fed. 
Rep.,  622;  In  re  Ladd,  74  Fed.  Rep.,  31;  West- 
ern Union  Tel.  Co.  v.  Chiles,  214  U.  S.,  274; 
U.  S.  V.  Tucker,  122  Fed.  Rep.,  518,  citing 
Palmer  v.  Barrett,  162  U.  S.,  402;  Sharon  v. 
Hill,  24  Fed.  Rep.,  729;  Martin  v.  House,  39 
Fed.  Rep.,  694;  Bannon  v.  Burnes,  39  Fed. 
Rep.,  899;  State  v.  Mack,  23  Nev.,  359, 47  Pac, 
763;  Foley  v.  Shriver,  81  Va.,  572.)  _ 

Of  course  the  property  of  the  United  States 
in  such  places  is  not  subject  to  the  jurisdiction 
of  the  State.  Civil  acts  done  there  will  be  of 
Federal  resort;  and  crimes  committed  there 
must  be  justiciable  by  the  courts  of  the  United 
States.  On  the  other  hand,  such  ceded  lands 
within  a  State  are  not  to  be  made  places  of 
refuge  from  its  civil  or  criminal  jurisdiction  or 
of  escape  from  civil  obligations  due  to  any  of  its 
inhabitants.     (7  Op.  Atty.  Gen.,  628.) 

It  is  competent  for  the  State  in  relinquishing 
its  sovereignty  and  ceding  it  to  the  United 
States  to  reserve  the  right  to  serve  civil  and 
criminal  process;  but  where  such  a  reservation 
was  not  made  the  United  States  has  exclusive 
jurisdiction  over  the  reservation,  and  the  sheriff 
of  the  county  within  which  it  is  situated  has  no 
power  to  serve  thereon  any  process  whatsoever 
issued  by  a  court  of  that  State,  for  it  is  an  ele- 
mentary principle  of  law  that  a  judicial  officer 
can  not  serve  process  beyond  his  jurisdiction. 
(23  Op.  Atty.  Gen.,  254.) 

Where  neither  consent  nor  cession  of 
jurisdiction. — Where  lands  are  acquii-ed  in 
any  other  way  by  the  United  States  within  the 
limits  of  a  State  than  by  purchase  with  its  con- 
sent [and  jurisdiction  is  not  ceded  by  the  State], 
they  will  hold  the  lands  subject  to  this  qualifi- 
cation: That  if  upon  them  forts,  arsenals,  or 
other  public  buildings  are  erected  for  the  use 
of  the  General  Government,  such  buildings, 
with  their  appurtenances,  as  instrimientalities 
for  the  execution  of  its  powers,  will  be  free  from 
any  such  interference  and  jurisdiction  of  the 


State  as  would  destroy  or  impair  their  effective 
use  for  the  purjioses  designed.  Such  is  the  law 
with  reference  to  all  instrumentalities  created 
by  the  General  Government.  Their  exemption 
from  State  control  is  essential  to  the  indepen- 
dence and  sovereign  authority  of  the  United 
States  wdthin  the  sphere  of  their  delegated 
powers;  but  when  not  used  as  such  instru- 
mentalities the  legislative  power  of  the  State 
over  the  places  acquired  will  be  as  full  and  com- 
plete as  over  any  other  places  within  her  limits. 
(Fort  Lea venwoVthR.  R.  Co.  v.  Lowe,  114  U.  S., 
525,  539;  Chicago  &  Pacific  Ry.  Co.  v.  McGlinn, 
114  U.  S.,  542;  Benson  v.  U.  S.,  146  U.  S.,  325; 
U.  S.  V.  Tiernev,  28  Fed.  Cas.  No.  16517; 
U.  S.  V.  Tucker,  122  Fed.  Rep.,  518.) 

WTiere  the  State  has  neither  consented  to  the 
purchase  nor  ceded  jurisdiction  to  the  United 
States,  the  State  retains  complete  and  ex- 
clusive political  jurisdiction  over  such  land, 
and  there  can  be  no  question  that  persons  there 
committing  crime  are  subject  to  trial  and  pun- 
ishment by  the  State  and  not  by  the  United 
States.  (U.  S.  v.  San  Francisco  Bridge  Co..  88 
Fed.  Rep.,  891,  894;  U.  S.  v.  Penn,  48  Fed. 
Rep.,  669;  In  re  O'Connor,  37  Wis.,  384.) 

Mere  o^vnership  and  occupancy  by  the  United 
States  of  land  within  a  State  do  not  suffice  to 
oust  the  jurisdiction  of  the  State,  even  when 
such  occupancy  is  with  the  full  knowledge  and 
tacit  consent  of  such  State,  and  even  though 
the  title  of  the  United  States  antedates  the 
existence  of  the  State  (7  Op.  Atty.  Gen.,  573); 
where  no  reservation  was  made  by  Congress, 
either  in  an  act  giving  existence  to  a  new  Terri- 
tory, or  in  the  act  admitting  the  Territory  as  a 
State.  (Gary  v.  State,  4  Kans.,  49;  U.  S.  v. 
Stahl.  27  Fed.  Cas.  No.  16373.) 

Status  of  residents. — Persons  residing  in 
places  so  ceded  are  in  many  respects  exterri- 
torialized,  so  as  not  to  be  subject  to  personal 
taxation  by  the  State,  not  to  acquire  a  pauper 
settlement  therein,  not  to  be  entitled  to  the 
benefit  of  its  public  schools,  nor  to  the  enjoy- 
ment of  its  elective  franchise.  (7  Op.  Atty. 
Gen.,  628.) 

When  Congress  possesses  exclusive  legislative 
power  over  a  naval  reservation,  the  laws  of  the 
State  can  not  be  allowed  any  operation  or  effect 
within  the  limits  thereof.  (Western  Union 
Tel.  Co.  V.  Chiles,  214  U.  S.,  274— suit  to  recover 
penalty  provided  by  laws  of  Virginia  for  non- 
receipt  of  a  telegram.) 

WTiere  the  general  consent  of  the  State  is 
given  to  the  purchase  and  where  there  is  no 
other  condition  or  reservation  in  the  act  grant- 
ing such  consent  but  that  of  a  concurrent  juris- 
diction of  the  State  for  the  serving  of  civil 
process  and  criminal  process  against  persons 
charged  with  crimes  committed  out  of  such 
territory,  the  Government  of  the  United  States 
has  the  sole  and  exclusive  jurisdiction  over 
such  territory  for  all  purposes  of  legislation  and 
jurisprudence  with  the  single  exception  ex- 
pressed, and  consequently  no  persons  are 
amenable  to  the  laws  of  the  State  for  crimes  and 
offenses  committed  within  said  territory,  and 
persons  residing  within  the  same  do  not  acquire 
the  civil  and  political  pri^dIeges  nor  do  they 
become  subject  to  the  ci^dl  duties  and  obliga- 
tions of  inhabitants  of  the  towns  within  which 
such  territory  is  situated.     (Fort  Leavenworth 


290 


Justice  Depaxtment. 


Ft.  2.  REVISED  STATUTES. 


Sec.  355. 


R.  R.  Co.  r.  Lowe,  114  U.  S.,  536,  citing  1 
Met.,  580.) 

Persons  in  the  employment  of  the  United 
States  actually  residing  in  the  limits  of  the 
armory  at  Harpers  Ferry  do  not  possess  the 
civil  and  political  rights,  nor  are  they  subject 
to  taxation  and  other  obligations  of  citizens  of 
the  State  of  Virginia.  The  privilege  of  not 
paying  taxes  in  such  a  case  is  a  personal  one  of 
the  party  claiming  it  and  not,  like  the  exemp- 
tion of  property  of  the  United  States  from 
taxation,  a  right  of  the  Government  as  such 
which  it  would  be  the  duty  of  the  Government 
to  maintain.     (6  Op.  Atty.  Gen.,  577.) 

A  State  may  cede  to  the  United  States  ex- 
clusive jurisdiction  over  a  tract  of  land  within 
its  limits  and  may  prescribe  conditions  to  the 
cession  if  they  are  not  inconsistent  with  the 
effective  use  of  the  property  for  the  purposes 
intended .  If  a  State  thus  ceding  to  the  United 
States  exclusive  jurisdiction  over  a  tract  within 
its  limits  reserves  to  itself  the  right  to  tax  private 
property  therein,  and  the  United  States  do  not 
dissent,  their  acceptance  of  the  grant  vnth.  the 
reservation  will  be  implied.  (Fort  Leaven- 
worth R.  R.  Co.  V.  Lowe,  114  U.  S.,  525.) 

WTiere  an  act  of  Ohio  ceding  to  the  United 
States  its  jurisdiction  over  lands  within  that 
State  for  the  purposes  of  a  National  Asylum 
for  Disabled  Volunteer  Soldiers,  pro\'ided  that 
nothing  in  said  act  should  be  construed  to  pre- 
vent the  officers,  employees,  and  inmates  of 
the  asylum  who  were  qualified  voters  of  the 
State  from  exercising  the  right  of  suffrage  at 
all  township,  county,  and  State  elections  in 
the  township  in  which  the  national  asylum 
should  be  located,  it  was  held  that,  upon  the 
pm'chase  of  the  territory  by  the  United  States 
with  the  consent  of  the  legislature  of  the  State, 
the  General  Government  became  invested 
with  exclusive  jurisdiction  over  it  and  its  ap- 
purtenances in  all  cases  whatsoever;  and  that 
the  inmates  of  such  asylum  resident  within  the 
territory,  being  within  such  exclusive  juris- 
diction, were  not  residents  of  the  State  so  as  to 
entitle  them  to  vote  within  the  meaning  of  the 
State  constitution,  which  conferred  the  elec- 
tive franchise  upon  its  residents  alone.  (Sinks 
V.  Reese,  19  Ohio  St.,  306;  Ft.  Leavenworth 
R.  R.  Co.  V.  Lowe,  114  U.  S.,  536.)  [The  case  of 
Sinks  t'.  Reese  was  disapproved  in  In  re  O'Con- 
nor, 37  Wis.,  379,  which  latter  case  was  in 
effect  reaffirmed  in  Clarke  v.  Milwaukee  Co., 
53  Wis.,  65,  9  N.  W.,  782.  The  O'Connor  case 
held  that  act  of  State  legislature  purporting  to 
cede  jurisdiction  to  the  United  States  was  void, 
as  it  is  not  competent  for  the  legislature  to  ab- 
dicate its  jurisdiction  over  its  territory  except 
where  the  lands  are  purchased  by  the  United 
States  for  the  specific  pm-poses  contemplated 
by  the  Constitution.  The  cases  were  reviewed 
in  In  re  Kelly,  71  Fed.  Rep..  545,  concerning 
jurisdiction  of  Northwestern  Branch  National 
Home  for  Disabled  Volunteer  Soldiers.] 

Right  of  Secretary  to  grant  revocable 
license  for  use  of  Government  land. — The 
Secretary'  of  War  has  authority  to  grant  a  re- 
vocable license  to  a  railway  company  to  lay  a 
single  track  on  a  Government  reserv^ation. 
Long-continued  exercise  of  a  power  of  this 
kind,  and  the  open  and  notorious  use  of  Gov- 
ernment reservations  bv  such  licensees  with- 


out legislative  objection  from  Congress  and 
without  the  adoption  of  any  legislative  rule 
upon  the  subject,  impUes  the  tacit  assent  of 
Congress  to  this  custom.  At  the  same  time 
this  custom  can  not  be  maintained  upon  any 
ground  except  benefit  to  the  public  interests, 
either  directly  or  indirectly.  It  can  not  be 
used  as  a  basis  for  granting,  under  the  guise  of 
a  temporary  license,  a  substantially  permanent 
right  to  maintain  a  raUroad.  (22  Op.  Atty. 
Gen.,  245;  see  also  21  Op.  Atty.  Gen.,  537,  565; 
22  01).  Atty.  Gen.,  544.) 

While  the  opinions  cited  were  confined  to  the 
question  of  granting  a  license  to  a  private  per- 
son for  the  use  of  Government  reser\-ations, 
yet  the  same  principles  apply  wherever  the 
proposal  is  to  permit  the  use  of  the  property  of 
the  United  States  Government  by  persons  or 
agencies  other  than  its  own  departments. 
Specifically,  held  applicable  to  use  of  naval 
reservations  by  government  of  Porto  Rico. 
(29  Op.  Atty.  Gen.,  205.) 

Power  of  Congress  to  limit  or  surrender 
its  jurisdiction. — In  numerous  cases,  espe- 
cially in  acts  authorizing  the  acquisition  of 
sites  for  public  buildings.  Congress  has  latterly 
required  from  the  States  a  cession  of  jurisdic- 
tion for  all  purposes  excepting  "the  adminis- 
tration of  the  criminal  laws  of  the  State  and  the 
service  of  civil  process  therein."  (See 21  Stat., 
142;  22 Stat.,  94, 152, 161;  23  Stat.,  282;  24Stat., 
544;  25 Stat., 444;  26 Stat.,  724.)  "In these  cases, 
by  force  of  the  exception,  there  is  left  to  the 
State  the  administration  of  its  criminal  laws 
over  the  premises  acquii'ed  by  the  General 
Government,  and  consequently  the  cognizance 
of  offenses  against  its  laws  committed  thereon, 
as  fully  as  the  same  existed  before  such  acqui- 
sition."    (20  Op.  Atty.  Gen.,  611.) 

WTiere  the  State  assents  to  the  purchase,  no 
offenses  committed  within  the  territory  so  pur- 
chased can  be  punishable  by  the  courts  of  the 
State  "unless  the  Congress  of  the  United  States 
shall  give  to  said  courts  jurisdiction  thereof." 
(Commonwealth  v.  Clary,  8  Mass.,  72;  file 
6769-21,  July  19,  1911.) 

In  this  connection,  consult  Fort  Leaven- 
worth R.  R.  Co.  V.  Lowe,  114  U.  S.,  534,  quot- 
ing U.  S.  V.  Cornell,  25  Fed.  Cas.  No.  14867,  to 
the  effect  that ' '  It  may  well  be  doubted  whether 
Congress  is,  by  the  terms  of  the  Constitution, 
at  liberty  to  purchase  lands  for  forts,  dock- 
yards, etc.,  with  the  consent  of  the  State  legis- 
lature, where  such  consent  is  so  qualified  that 
it  will  not  justify  the  exclusive  legislation  of 
Congress  there."  See  also  10  Op.  Atty.  Gen., 
34,  holding  that,  if  the  act  of  the  State  legisla- 
ture amount  to  consent,  any  exceptions,  reser- 
vations, or  qualifications  contained  in  the  act 
are  void,  because  the  consent  being  given  by 
the  legislature,  the  Constitution  vests  in  Con- 
gress exclusive  legislation  over  the  place  be- 
yond the  reach  both  of  Congress  and  the  legislature, 
and  in  In  re  Ladd,  74  Fed.  Rep.,  31,  holding 
that  jurisdiction  having  once  been  ceded  by  the 
State  and  accepted  by  the  United  States,  it 
"could  not  be  recaptured  by  the  action  of  the 
State  alone." 

By  joint  resolution,  approved  October  22, 
1914,  Congress  ceded  jurisdiction  to  the  State 
of  California  over  certain  lands  in  the  Presidio 
of  San  Francisco  and  Fort  Mason  Military  Res- 


291 


Sec.  356. 


Pt.  2.  REVISED  STATUTES. 


Justice  Department. 


ervations  dnrinp  thoir  occupancy  by  the 
Panaina-Pacilic  International  Exposition  Co., 
the  United  States  having  possessed  exclusive 
jurisdiction  over  said  reservations.  (See  also 
act  Jan.  21.  1871  (16  Stat.,  399),  and  in  In  re 
Kelly,  71  Fed.  Rep.,  545.) 

VI.  Jurisdiction,  Naval  Reservations. 

Miscellaneous  decisions. — U.  S.  v.  Travers, 
28  Fed.  Cas.  No.  I(j537  (navy  yard,  Boston, 
Mass.);  U.  S.  v.  Carter,  84  Fed.  Rep.,  622  (naval 
vessel  in  Wallabout  Bay,  at  Cob  Dock,  navy 
yard,  New  York);  Western  Union  Tel.  Co.  v. 
Chiles,  214  U.S. ,274  (naval  vessel  at  navy  yard, 
Norfolk,  Va.);  U.  S.  v.  Davis,  25  Fed.  Cas.  No. 
14930  (marine  hospital,  Chelsea,  Mass.);  U.  S. 
V.  Dolan,  25  Fed.  Cas.  No.  14978,  5  Blatch.,  284 
(navy  yard.  New  York);  U.  S.  v.  Bevans,  3 
Wheat.,  336  (naval  vessel  in  Boston  Harbor);  7 
Op.  Atty.  Gen.,  573  (na\'y  yard,  Pensacola, 
Fla.);  file  5716-486  (Pensacola);  file  6769-21 
(navy  yard,  New  York);  file  6807  (navy  yard. 
New  York);  file  6769-21  (naval  proving  ground, 
Indianhead,  Md.);  Op.  Atty.  Gen.,  Mar.  3, 
1908,  file  7101-6  (naval  proving  ground,  Indian- 
head,  Md.);  file  7101-10,  Apr.  17,  1908  (naval 
pro\'ing  ground,  Indianhead,  Md.);  file  26524- 
57  (navy  yard,  Philadelphia,  Pa.);  files  14560- 
174,  Apr.  19, 1916,  and  26250-331,  Feb.  24, 1912, 
naval  training  station,  Great  Lakes,  111.  Ex 
parte  Tatem,  23  Fed.  Cas.  No.  13759  (naval 
vessel  at  navy  yard,  Norfolk,  Va.);  file  26283- 
988:2  (navy  yard.  New  York);  General  Order 
No.  121,  September  17,1914  (general  instructions 
relative  to  jurisdiction,  civil  and  naval  author- 
ities). As  to  naval  reservations  in  State  of 
Maryland  and  particularly  Indianhead,  see 
below  "Right  of  coroners  to  hold  inquests  on 
reservations." 

Service  of  process  on  persons  in  naval 
or  civil  service. — The  reservation  of  power  to 
the  State  to  serve  civil  or  criminal  process 
within  the  limits  of  a  naval  reservation  em- 
powers the  State  or  municipal  authorities  forci- 
bly to  take  possession  of  persons  in  the  naval 
or  civil  service  within  such  limits,  whether  on 
shore  or  on  vessels  permanently  stationed  at  the 
yard,  subject  to  the  qualification  that,  in  order 
that  such  service  of  process  may  not  interfere 
with  the  operations  of^the  Federal  Government, 
the  person  deputed  to  perform  that  duty  should 
first  obtain  the  permission  of  the  commandant, 
and  such  permission  should  only  be  withheld 
upon  the  most  forcible  and  cogent  reasons  of 
public  necessity.     (File6769-21,  July  19,  1911.) 

The  principle  that  no  State  has  the  right  to 
interfere  with  the  instrumentalities  of  the 
Federal  Government  has  been  recognized  from 
the  earliest  davs  of  our  Government.  (File 
6769-21,  July  19,  1911,  citing  Raiboad  Co.  v. 
Lowe,  114  U.  S.,  525-  Railway  Co.  v.  McGlinn, 
114  U.  S.,  542,  545;  McCulIoch  v.  Maryland,  4 
Wheat.,  316;  Osborn  v.  The  Bank,  9  WTieat., 
738;  Dobbins  v.  Erie  Co.,  16  Pet.,  435;  see  also 
file  26524-57,  Feb.  12,  1914.) 

There  is  no  act  of  Congress  authorizing  a 
call  by  a  governor  for  the  surrender  of  an 
officer  of  the  Navy  charged  with  having  broken 
the  peace  of  a  State,  nor  any  law  authorizing 
an  arrest  by  the  executive  with  a  view  to  a 
forcible  surrender  of  him  for  the  purposes  of 


trial.  However,  advised  that  the  accused  be 
ordered  by  the  Navy  Department  to  smrender 
himself.     (1  Op.  Atty.  Gen.,  244.) 

The  civil  authorities  are  not  empowered  to 
ariest  persons,  either  in  the  naval  or  the  civil 
service  of  the  United  States,  within  the  limits 
of  a  naA^  yard,  whether  on  shore  or  on  board 
vessels  at  the  yard,  even  where  jurisdiction  has 
been  retained  by  the  State  to  serve  process, 
without  first  ol)taining  the  permission  of  the 
commandant,  to  the  end  that  such  service  of 
process  shall  not  interfere  with  or  obstruct  the 
operations  of  the  United  States  Government. 
(File  6769-21,  July  19,  1911.)  However,  the 
application  to  the  commanding  officer  ia  not 
jurisdictional,  the  matter  being  one  that  does 
not  go  to  the  jurisdiction  of  the  civil  court 
issuing  the  process.  Accordingly  the  want  of 
an  application  to  the  commanding  officer  would 
be  a  mere  informality  which  might  make  the 
warrant  of  arrest  irregular  but  would  not  make 
it  void  or  Liable  to  be  attacked  upon  a  habeas 
corpus  proceeding.  (Attorney  General  to  Sec- 
retary of  the  Navy,  Nov.  14,  1914,  file  7657- 
261:1.) 

It  is  not  intended  that  there  should  be  any 
friction  between  the  civil  and  naval  authorities 
in  this  matter.  Should  a  question  arise  at  any 
time  the  commandant  should  inform  the  local 
authorities  that  the  Navy  Department  has  no 
desire  to  olsstruct  the  operation  of  State  laws  by 
preventing  the  punishment  of  persons  in  the 
Navy  or  of  persons  in  the  civil  service  for  viola- 
tion of  such  laws;  and  that  upon  presentation 
of  lawful  process  in  proper  hands  the  person 
wanted  will  invarialdy  l>e  delivered  to  the  civil 
officer  or  such  officer  will  be  allowed  to  serve 
the  process  himself,  whicheA^er  course  appears 
the  more  advisable,  provided  that  the  case 
is  not  one  in  which,  l)y  reason  of  any  Federal 
interest  involved,  the  United  States  should 
intervene.     (File  6769-21,  July  19,  1911.) 

Commanding  officers  of  vessels  and  shore 
stations  of  the  Navy  or  Marine  Corps  must  com- 
municate with  the  Secretary  of  the  Navy  and 
await  his  instructions  before  delivering  to  civil 
authorities,  State  or  Federal,  any  person  in 
their  custody  or  under  their  control.  (G.  O.  No. 
121,  Sept.  17,  1914.) 

Before  delivering  any  such  person  to  State 
authorities  for  trial  assurance  must  be  obtained 
from  the  State  authorities  that  the  person  so 
delivered  will  l:ie  returned  to  the  naval  author- 
ities at  the  place  of  his  delivery  without  ex- 
pense to  the  United  States,  if  the  naval  author- 
ities shall  desire  his  return.  (G.  O.  No.  121, 
Sept.  17,  1914.) 

The  preceding  paragraph  applies  even  though 
the  State  authorities  have  expressly  retained 
jurisdiction  to  serve  civil  or  criminal  process. 
(G.  O.  No.  121,  Sept.  17, 1914.)  Otherwise  there 
would  be  an  interference  with  instrumentali- 
ties of  the  Federal  Government,  no  appropria- 
tion 1)eing  available  for  the  return  of  men  to 
naval  jurisdiction  under  such  circumstances. 
(File  26524-57,  Feb.  12,  1914.) 

Even  where  land  is  purchased  for  use  as  a 
military  post  without  the  consent  of  the  legis- 
lature, neither  the  State  nor  any  county  of  the 
State  would  have  the  right  to  interfere  with 
any  instrumentalities  necessary  to  the  proper 
use  of  such  lands  as  a  military  post,  and  to 


292 


Justice  Depaortment. 


Pt.  2.  REVISED  STATUTES. 


Sec.  356. 


V 


render  that  use  effective  and  complete.  (Pundt 
V.  Pendleton,  167  Fed.  Rep.,  1001.) 

Requisition  must  be  made  by  the  governor, 
addressed  to  the  Secretary  of  the  Na\'y  and 
complying  with  the  rules  governing  interstate 
extradition  of  criminals  in  civil  life,_in  all  cases 
in  which  the  person  whose  delivery  is  desired  is 
in  the  naval  service  and  is  not  serving  at  a  navy 
yard  or  other  place  within  the  territorial  limits 
of  the  State  making  tlie  request.  (G.  O.  No. 
121,  Sept.  17,  1914;  2  Op.  Atty.  Gen.,  10.) 

Before  delivering  to  the  civil  authorities  of  a 
State  any  person  in  the  naval  service,  "the 
convenience  of  the  public  service  requires 
that  we  should  know  at  what  time  his  trial 
will  come  on."  The  man  may  be  indicted  in 
his  absence,  and  if  this  is  done  the  governor 
will  be  able  to  inform  the  Navy  Department 
at  what  time  the  trial  will  take  place.  (See 
1  Op.  Atty.  Gen.,  244;  see  also  file  26524-126, 
May  17,  1915.) 

A  naval  prisoner  will  not  be  delivered  to  the 
civil  authorities,  Federal  or  State,  for  trial  until 
his  case  has  lieen  finally  disposed  of  Ijy  the 
naval  authorities  except  in  certain  cases  where 
his  surrender  is  desired  upon  a  serious  charge, 
such  as  felonious  homicide.  (G.  O.  No.  121, 
Sept.  17,- 1914.) 

The  expression  "naval  prisoner"  includes 
any  person  serving  sentence  of  court-martial,  or 
in  custody  awaiting  trial  by  court-martial,  or 
disposition  of  charges  against  him.  (G.  O.  No. 
121,  Sept.  17,  1914.  As  to  definition  of  "cus- 
tody" see  Wales  v.  Whitney,  114  U.  S.,  564.) 

Service  of  subpoenas  by  the  civil  authorities 
on  persons  in  the  naval  service,  afloat  or  ashore, 
will  not  be  allowed  until  the  permission  of  the 
commanding  officer  has  fiist  been  obtained. 
(G.  O.  No.  121,  Sept.  17,  1914.) 

'\\Tiere  an  enlisted  man  was  charged  with  a 
crime  against  a  civilian,  alleged  to  have  been 
committed  on  a  vessel  of  the  Atlantic  Reserve 
Fleet  at  the  navy  yard,  Philadelphia,  the 
department  declined  to  deliver  him  to  the 
civil  authorities  of  Pennsylvania  on  the  ground 
that  the  latter  were  without  jurisdiction. 
(File  26524-127,  Mar.  23,  1915.) 

Right  of  coroners  to  hold  inquests  on 
reservations. — In  places  over  which  Congress 
has  exclusive  power  of  legislation,  it  may  un- 
doubtedly exclude  coroners  and  all  other  State 
ofiicers  from  exercising  their  functions  upon 
such  premises;  but  where  Congress  not  having 
exercised  this  right,  a  coroner  enters  the  reser- 
vation to  investigate  an  accident,  and  no 
government  official  attempts  to  keep  him  out, 
and  the  Federal  Government  does  not  complain 
of  an  invasion  of  its  exclusive  jurisdiction: 
Held,  that  the  coroner's  presence  and  proceed- 
ings were  attended  with  the  implied  if  not  the 
express  sanction  of  both  governments  and  were 
demanded  by  the  exigencies  of  the  occasion; 
and  that  he  was  entitled  to  recover  his  usual 
fees  from  the  county  for  holding  such  inquest. 
(County  of  Allegheny  v.  McClung,  53  Pa.  St., 

482.) 

A  coroner  is  not  authorized  to  hold  inquests 
on  the  bodies  of  persons  dying  at  a  place  within 
the  exclusive  jurisdiction  of  the  United  States; 
but  he  may  be  permitted  to  enter  such  place  to 
hold  inquests  on  the  bodies  of  unknown  persons 


found  washed  upon  its  shores  or  floating  in 
the  neighboring  waters  (McClure's  Dig.,  1901, 
par.  689) ;  or  upon  the  bodies  of  persons  dying  as 
a  result  of  criminal  acts  committed  upon  them 
outside  the  reservation  (Armv  Dig.,  1912,  p. 
270). 

If  a  death  occurs  upon  lands  over  which  the 
United  States  has  exclusive  jurisdiction,  and 
such  death  was  not  caused  by  any  act  within 
the  acknowledged  jurisdiction  of  the  State 
within  whose  boundaries  such  land  is  situated, 
then  a  coroner  could  have  no  jurisdiction  in  the 
matter  and  could  not,  under  the  reserved  right 
of  the  State  to  serve  process  upon  such  lands, 
come  upon  them  and  hold  an  inquest.  Further- 
more, such  a  proceeding  would  be  of  no  use  as  a 
step  in  the  criminal  procedure  of  the  State, 
because  the  State  would  have  no  jurisdiction 
to  trv  the  offender.  (File  6769-21,  July  19,  1911; 
see  also  file  26283-988:2,  Jan.  18,  27, 1916.) 

But  if  the  body  of  a  drowned  person  were 
found  in  waters  within  the  limits  of  a  nav) 
yard,  and  no  drowning  had  occurred  at  the  yard, 
it  would  be  proper  to  allow  the  coroner  to  hole 
an  inquest.     (File  6769-21,  July  19,  1911.) 

Where  a  person  in  the  naval  service  who  has 
been  injured  outside  the  navy  yard,  returns 
thereto  and  dies  from  the  injury,  the  coroner  if 
he  should  so  desire  should  be  permitted  to  hold 
an  inquest,  because  the  injury  was  inflicted  or 
occurred  while  the  deceased  was  within  the 
jurisdiction  of  the  State.  (File  6769-21,  July 
19,  1911.) 

In  proper  cases,  and  when  thought  advisable, 
but  as  not  establishing  a  precedent  or  as  ac- 
knowledging any  jurisdiction  of  the  State  to  do 
so,  a  coroner  might  be  allowed,  as  a  matter  of 
courtesy,  to  come  into  a  navy  yard  to  hold  an 
inquest;  but  before  permitting  such  action,  the 
commanding  officer  or  commandant  should  feel 
convinced  that  such  a  course  would  be  ad- 
visable or  accomplish  some  desirable  end. 
(File  6769-21,  July  19,  1911.) 

A  coroner  has  the  right  to  hold  an  inquest  in 
case  of  accident  resulting  in  death,  occurring 
within  the  limits  of  a  naval  reservation  where 
concurrent  jurisdiction  exists.     (File  3727-97.) 

In  the  case  of  an  enlisted  man  of  the  Navy 
killed  on  board  a  battleship  at  the  navy  yard, 
Philadelphia,  the  coroner  attempted  to  hold  an 
inquest  outside  the  yard  and  applied  for 
delivery  of  the  enlisted  man  charged  with  the 
homicide  and  against  whom  court-martial  pro- 
ceedings had  been  commenced.  On  advice  of 
the  Department  of  Justice  this  application  was 
denied.     (File  6674-29,  Apr.,  1907.) 

By  laws  of  Maryland  (act  Apr.  8,  1902, 
amended  Mar.  30,  1908)  the  State  retained 
concurrent  jurisdiction  with  the  United  States 
so  far  as  that  "*  *  *  such  criminal  or  other 
process  as  shall  issue  under  the  authority  of  the 
State  of  Maryland  against  any  person  or  persons 
charged  with  crimes  or  misdemeanors  com- 
mitted within  or  without  the  limits  of  the  said 
lands  may  be  executed  therein,  in  the  same 
manner  as  if  no  jurisdiction  had  been  hereby 
ceded."  It  appears  extremely  doubtful 
whether  the  right  of  the  State  to  serve  criininal 
process  in  the  case  of  an  offense  committed 
within  Government  land  would  be  of  much 
avail,    since   the   courts   of   Maryland   would 


293 


Sec.  355. 


Pt.  2.  REVISED  STATUTES. 


Justice  Department, 


certainly  have  no  jurisdiction  to  try  a  person 
for  a  crime  committed  within  the  limits  of  the 
naval  proving  pround  at  Indianhead  or  on  any 
otlier  naval  reservation  in  that  State.  Never- 
theless, the  law  gives  the  State  the  right  to 
serve  its  criminal  process  thereon,  and  such 
right  should  be  respected.  An  offender  under 
such  circumstances, when  called  upon  to  plead 
to  the  indictment  in  a  State  court,  might  inter- 
pose a  plea  to  the  jurisdiction  of  such  court, 
and  it  is  believed  that  such  plea  would  be 
sustained.  It  would  seem  further  that  a 
coroner  should  be  allowed  to  hold  his  inquest 
if  he  so  desires  within  the  limits  of  any  naval 
reservation  in  the  State  of  Maryland;  but  that 
the  result  would  be  as  stated,  if  it  should  be 
found  that  any  crime  had  been  committed  on 
the  reservation.     (File  67G9-21,  July  19,  1911.) 

Indianhead. —  The  land  purchased  for  the  naval 
proving  grourid  was  acquired  at  three  different 
times,  to  wit:  May,  1890,  September,  1891,  and 
August,  1901.  In  1900  there  was  an  act  passed 
by  the  General  Assembly  of  Maryland  giving 
consent  to  the  purchase,  generally,  by  the 
United  States  of  lands  for  the  purpose  of  forts, 
magazines,  arsenals,  coast  defenses,  etc.,  and 
the  erection  of  barracks,  garrisons,  and  other 
needful  buildings.  Before  1900  there  was  no 
law  authorizing  the  purchase  of  land  in  Mary- 
land except  for  special  purposes  (lighthouse 
stations,  buoys,  etc.),  and  the  acquisition  of 
lands  under  certain  circumstances  by  condem- 
nation. The  act  of  1900  must  be  taken  as 
operating  prospectively  only,  and  therefore 
does  not  cover  the  purchases  of  1890  and  1891. 
The  land  acquired  in  1901  would  come  within 
the  act  of  1900  gi\"ing  consent  to  the  purchase. 
There  was  also  an  act  passed  April  5,  1906, 
ceding  jurisdiction  to  the  United  States  over 
lands  acquired  in  Maryland,  which  act  appar- 
ently had  reference  to  lands  to  be  acquired 
after  its  passage,  and  did  not  operate  retro- 
actively. The  act  April  8,  1902,  had  relation 
to  lands  which  had  been  theretofore  or  were 
afterwards  to  be  acquired,  but  expressly  ex- 
cepted from  its  operation  Charles  County,  in 
which  Indianhead  is  located.  (Op.  Atty. 
Gen.,  Mar.  3,  1908,  file  7101-6.)  This  excep- 
tion as  to  Charles  County  was  repealed  by  act 
Mar.  30,  1908.  See  file  7101-10,  Apr.  17, 
1908,  and  7101-9.) 

In  an  opinion  rendered  by  the  Attorney 
General  of  the  State  of  Maryland,  February 
7,  1916,  it  was  held  that  the  United  States  un- 
questionably have  exclusive  jurisdiction  over 
the  Naval  Proving  Ground,  Indianhead,  except 
for  the  right  of  the  State  to  execute  process 
upon  the  reservation  for  offenses  committed 
outside,  but  the  State  has  no  right  to  punish 
offenses  committed  on  the  reservation.  (See 
file  6692-233:7.) 

VII.  Miscellaneous. 

TJse  of  appropriations. — When  in  an  act 
appropriating  for  the  purchase  of  additional 
land  for  a  public  building  the  piece  of  ground 
to  be  purchased  is  particularly  described,  the 
appropriation  can  not  be  used  for  the  purchase 
of  another  tract  equally  suitable  for  the  purpose 
and  at  a  price  within  the  sum  provided, 
although  the  piece  named  in  the  act  can  not  be 


secured  within  the  amount  appropriated. 
(2  Comp.  Dec,  77.) 

An  appropriation  for  construction  of  a  dam 
impliedly  autlujrizes  the  purchase  of  necessarv 
land.  (15  Op.  Atty.  Gen.,  212.  See  also  22 
Op.  Atty.  Gen.,  665.) 

An  appropriation  under  the  War  Department 
for  erection  of  a  monument  is  not  authority  for 
purchase  of  land.  (6  Comp.  Dec,  791;  see  also 
7  Comp.  Dec,  524.) 

The  expense  of  procuring  an  abstract  of 
title  to  land  to  be  used  as  a  site  for  a  fortifica- 
tion is  a  proper  charge  against  the  appropriation 
made  for  the  purchase  of  the  site,  if  the  abstract 
is  needed  by  the  United  States  attorney  to 
assist  him  in  examining  the  title,  provided  the 
land  is  to  be  purchased  and  not  condemned. 
(3  Comp.  Dec,  216;  compare  23  Comp,  Dec, 
53.) 

Payment  for  the  services  of  a  special  assistant 
United  States  attorney  in  examining  titles  to 
land  can  not  be  made  from  the  appropriation 
available  for  the  work  in  connection  with  which 
the  land  was  needed,  the  appropriation  under 
the  Department  of  Justice  for  pay  of  such  assist- 
ants being  exclusive.  (1  Comp.  Dec,  317;  com- 
pare 9  Comp.  Dec,  793.) 

Where  an  abstract  of  title  is  furnished  as  a 
preliminary  to  the  purchase  of  the  land,  the 
expense  is  properly  chargeable  to  the  appropria- 
tion provided  to  pay  for  the  land,  the  expense 
being  regarded  as  part  of  the  cost  of  the  prop- 
erty. (Citing  3  Comp.  Dec,  216,  217.)  But 
the  expense  of  procuring  an  abstract  of  title  to 
land  already  acquired  by  the  United  States  is 
payable  from  the  appropriation  for  contingen- 
cies of  the  department  procuring  the  abstract 
and  not  against  an  appropriation  made  specific- 
ally for  improvements  on  the  land.  (4  Comp. 
Dec,  62.) 

Bjr  act  of  March  2,  1889  (25  Stat.  941),  it  was 
provided  that  in  the  procurement  of  sites  for 
public  buildings  the  grantors  must  furnish,  free 
of  charge,  all  requisite  abstracts,  official  certifi- 
cates, and  evidences  of  title.  Referring  to  this 
law  the  Comptroller  said:  "The  exact  public 
buildings  to  which  it  refers  is  not  entirely  free 
from  doubt,  but  I  am  clearly  of  the  opinion  that 
it  has  no  relation  whatever  to  sites  for  fortifica- 
tions under  the  War  Department."  (3  Comp. 
Dec,  218.) 

By  necessary  implication  the  latter  proviso 
of  the  act  of  March  2,  1889  (25  Stat.,  941),  pos- 
itively prohibits  the  payment  for  an  abstract 
of  title  to  land  purchased  by  the  United  States 
as  a  site  for  any  public  building.  If  such  an 
abstract  could  be  procured  and  paid  for  prior 
to  the  agreement  for  the  purchase  of  the  site, 
the  purpose  of  this  provision  would  be  entirely 
defeated.  The  provision  must  therefore  be  con- 
strued as  prohibiting  payment  for  an  abstract 
procured  prior  to,  as  well  as  for  one  procured  at 
the  time  of,  the  purchase.     (7  Comp.  Dec,  51.) 

Payment  for  abstract  of  title  for  land  not  pur- 
chased as  a  site  for  a  public  building  may  be 
made  from  the  appropriation  for  purchase  of  the 
land  and  the  making  of  the  improvement 
thereby  authorized.  The  act  of  March  2,  1889 
(25  Stat.,  941),  does  not  apply  to  such  case. 
(8  Comp.  Dec,  212.) 

It  is  well  settled  that  in  the  purchase  of  land 
on  account  of  the  United  States  the  preliminary 


294 


Justice  Depaxtraent. 


Pt.  2.  REVISED  STATUTES. 


Sec.  356. 


expenses  of  such  purchase,  as  procuring  ab- 
stracts of  title,  etc.,  and  such  other  services  as 
are  not  legal  services,  are  payable  from  the 
appropriation  for  the  purchase  of  the  land ;  but 
that  the  expense  of  any  legal  proceedings  taken 
by  the  Department  of  Justice  in  connection 
therewith  are  payable  from  an  appropriation  of 
that  department.  (9  Comp.  Dec,  793,  citing 
3  Comp.  Dec,  216.) 

Section  355  has  been  modified  by  the  pro- 
visions of  the  act  of  March  2, 1889  (25_Stat.,  941). 
It  has  been  held  that  this  act  prohibits  the  pay- 
ment by  the  Government  of  the  expense  of  an 
abstract  of  title  to  land  purchased  by  the 
United  States  as  a  site  for  a  public  building,  and 
that  this  prohibition  applies  to  an  abstract  pro- 
cured either  prior  to  or  at  the  time  of  the  pur- 
chase of  such  land.  (14  Comp.  Dec,  579,  citing 
7  Comp.  Dec,  51.) 

When  a  suit  for  condemnation  is  brought 
the  expense  of  such  suit,  like  all  other  suits  in 
which  the  United  States  is  a  party,  is  payable 
from  the  appropriations  made  for  the  Depart- 
ment of  Justice.  (3  Comp.  Dec,  216;  see  also 
1  Comp.  Dec,  317;  2  Comp.  Dec,  201.) 

Transfer  of  public  lands. — Lands  reserved 
for  militarj'  purposes  can  not  be  restored  to  the 
public  domain  without  an  act  of  Congress;  and 
it  would  also  seem  that  they  can  not  be  trans- 
ferred to  another  department.  (28  Op.  Atty. 
Gen.,  143;  21  Op.  Atty.  Gen.,  120;  file  984-3, 
Oct.,  1905.  See  also  note  to  sec.  161,  R.  S., 
"Custody  of  Property  and  Records.") 

The  President  has  authority  to  transfer  the 
use  and  control  of  lands  in  the  Philippine 
Islands,  reserved  by  Executive  Order  for  naval 
purposes,  to  the  ^^'a^  Department  for  military 
purposes.     (28  Op.  Atty.  Gen.,  262.) 


Any  part  or  parts  of  the  naval  stations  in 
Porto  Rico  no  longer  needed  for  the  purposes  of 
the  Navy'  Department  may  be  transferred  to  the 
control  of  the  \\'ar  Department  or  of  any  other 
department,  either  by  formal  Executive  Order 
or  by  arrangement  between  the  Secretary  of  the 
Navy  and  the  head  of  the  other  department. 
(29  Op.  Atty.  Gen.,  205,  citing  25  Op.  Atty. 
Gen.,  269;  28  Op.  Atty.  Gen.,  262;  16  Op.  Atty. 
Gen.,  124.) 

Any  part  of  the  naval  stations  in  Porto  Rico 
may  be  transferred  to  the  Government  of  Porto 
Rico  under  express  authority  contained  in  the 
act  June  14,  1910  (36  Stat.,  467),  provided  it  is 
embraced  witliin  the  terms  of  that  act.  While 
this  transfer  may  be  made  by  the  Secretary  of 
the  Navj',  it  would  be  preferable  to  have  the 
formal  transfer  effected  by  presidential  procla- 
mation.    (29  Op.  Atty.  Gen.,  205.) 

As  to  those  parts  of  the  naval  stations  in  Porto 
Rico  \\'hich  are  not  within  the  provisions  of  the 
act  of  1910,  there  is  no  warrant  of  law  for  their 
formal  transfer  or  cession  to  the  Government  of 
Porto  Rico.  Permission,  however,  may  be 
given  to  the  Insular  Government  through  a 
letter  or  instrument  in  the  nature  of  a  revocable 
license  for  the  use  of  these  parts  of  the  stations 
and  the  buildings  thereon  and  for  the  construc- 
tion of  improvements  temporary  in  their 
nature.    (29  Op.  Atty.  Gen.,  205.) 

It  would  be  difficult  to  lay  down  complete 
rules  in  regard  to  these  reservations.  They  are 
made  under  such  a  variety  of  circumstances,  for 
such  various  purposes,  and  under  such  different 
laws  that  each  case  is  more  conveniently  con- 
sidered and  discussed  as  it  arises  in  connection 
with  the  facts  relating  to  it.  (16  Op!  Atty. 
Gen.,  124.) 


OF 


Sec.  356.  [Opinions  of  Attorney-General  required  by  heads  of  Departments.] 

The   head   of   any  Executive   Department   may   require   the   opinion   of   the 

Attorney-General  on  any  questions  of  law  arising  in  the  administration  of  his 

Department.— (22  Jime,  1870,  c.  150,  s.  6,  v.  16,  p.  163.) 

acta,  in  iserforming  this  legal  duty,  simply  as 
the  law  adviser  of  the  President  and  heads  of 
departments.  He  is  bound  upon  points  of  law 
and  facts  stated  by  them  to  give  legal  opinions 
in  aid  of  their  judgment  in  matters  for  their 
decision.    (11  Op.  Atty.  Gen.,  4.) 

When  in  the  course  of  discharging  the  duties 
of  their  departments,  a  question  of  law  shall 
arise,  whose  solution  is  a  prerequisite  to  the  dis- 
charge of  those  duties,  the  head  of  any  depart- 
ment has  a  right  to  request  the  opinion  of  the 
Attorney  General  on  such  question  of  law  and  he 
is  bound  by  his  oath  to  answer  it.  (1  Op.  Atty. 
Gen.,  608,  611.) 

The  Attorney  General  is  not  authorized  or 
required  to  give  an  official  opinion  except  to  the 
President  or  to  the  head  of  an  Executive 
Department,  and  the  opinion  must  be  needed  for 
the  guidance  of  the  head  of  the  department  and 
should  relate  to  some  matter  calling  for  action 
or  decision  on  his  part.  (21  Op.  Atty.  Gen., 
174;  20  Op.  Atty.  Gen.,  609,  723.) 

An  opinion  of  the  Attorney  General  may  be 
requested  by  two  or  more  heads  of  departments 
jointly,  and  will  be  rendered  to  all  who  joined 
in  the  request.  (See  29  Op.  Atty.  Gen.,  303; 
29  Op.  Atty.  Gen.,  494.) 


I.  Who  May  Request  Opinion. 
II.  Must  be  Question  op  Law. 

III.  Must    Arise    in    Administeation 

Department. 

IV.  Form  of  Request. 

V.  Weight  of  Opinions. 

VI.  Jurisdiction,  Attorney  General  and 
Comptroller  of  the  Treasury. 

VII.  Miscellaneous. 


I.  Who  May  Request  Opinion. 

President  or  head  of  department. — It  has 
repeatedly  been  held  that  the  Attorney  General 
is  not  authorized  to  give  his  official  opinion 
upon  a  question  of  law  where  it  is  not  called  for 
by  the  t'resident  or  by  the  head  of  a  depart- 
ment.    (14  Op.  Atty.  Gen.,  21.) 

The  Attorney  General  is  not  authorized  to 
give  an  official  opinion  in  any  case  except  on  the 
call  of  the  President  or  some  one  of  the  heads  of 
departments.     (1  Op.  Atty.  Gen.,  211.) 

By  long  and  unbroken  construction  and  prac- 
tice it  has  been  settled  that  the  Attorney  General 


296 


Sec.  366. 


Pt.  g.  REVISED  STATUTES. 


Justice  Department. 


When  a  "difference  of  opinion"  arises  be- 
tween several  executive  departments  as  to  the 
construction  of  the  law,  the  primary  question  is 
as  to  which  is  vested  with  the  determination 
and  responsibility  of  the  question.  That  one 
only  can  have  jurisdiction  over  the  subject- 
matter  is  plain.    (20  Op,  Atty.  Gen.,  178,  180.) 

As  to  opinions  which  may  be  required  of  the 
Attorney  General  by  the  President,  see  section 
354,  Revised  Statutes. 

Subordinate  officers  of  the  Government 
who  desue  an  oOicial  opinion  must  seek  it 
through  the  head  of  the  department  to  which 
such  subordinate  is  accountable.  (1  Op.  Atty. 
Gen.,  211.)  [Where  an  opinion  was  requested 
by  a  subordinate  officer  of  a  department,  the 
Attorney  General  has  replied  to  the  head  of  the 
department.  (20  Op.  Atty.  Gen.,  220.)  In 
another  case  the  Attorney  General  addressed  his 
opinion  to  a  subordinate  officer  of  a  department, 
it  appearing  that  he  requested  the  opinion  "By 
direction  of  the  President."  (27  Op.  Atty. 
Gen.,  150.)  An  opinion  was  rendered  to  the 
Secretary  of  the  Navy  in  response  to  a  request 
from  the  latter's  aid.     (28  Op.  Atty.  Gen.,  531.)] 

For  the  guidance  of  the  heads  of  bureaus  and 
other  officers  of  the  departments  in  the  dis- 
charge of  their  duties  provision  is  made  by  sec- 
tion 361,  Revised  Statutes,  for  assistance  from 
the  officers  of  the  Department  of  Justice,  under 
the  direction  of  the  Attorney  General.  The  At- 
torney General  can  not  render  an  opinion  in 
such  cases,  even  though  it  be  requested  through 
the  head  of  the  department,  where  the  matter 
is  not  one  calling  for  action  or  decision  of  the 
latter.  (21  Op.  Atty.  Gen.,  174;  20  Op.  Atty. 
Gen.,  609,  723.) 

Question  suggested  but  not  decided  whether 
law  allows  questions  in  the  War  and  Navy 
Departments  to  be  sent  to  the  Attorney  General 
by  somebody  else  than  the  Secretary.  (18  Op. 
Atty.  Gen.,  59.     See  sec.  357,  R.  S.,  and  note.) 

It  is  true  that  the  Attorneys  General  have 
given  to  heads  of  departments  ad\'ice  and 
opinion  upon  questions  arising  in  the  bureaus  of 
their  respective  departments;  but  such  advice 
and  opinion  are  intended  to  aid  only_  the  judg- 
ment of  the  Secretary  himself  in  deciding  sucn 
questions.     (11  Op.  Atty.  Gen.,  4.) 

The  Attorney  General  is  not,  in  general,  to 
give  official  opinions  to  subordinate  officers  of  the 
Government.     (6  Op.  Atty.  Gen.,  326,  334.) 

An  opinion  of  the  Attorney  General  upon  any 
question  arising  in  the  administration  of  the 
Treasury  Department  can  only  be  had  at  the 
instance  of  the  Secretary.  (18  Op.  Atty.  Gen. 
59.) 

Legislative  Department. — In  the  absence 
of  any  statutory  authority  to  give  official  opin- 
ions to  the  legislative  department  of  the  Gov- 
ernment, the  assumption  of  such  a  power  by  the 
Attorney  General  would  be  in  violation  of  his 
oath  of  office  and  of  dangerous  example.  (10 
Op.  Atty.  Gen.,  164.) 

The  Attorney  General  is  not  authorized  to 
give  his  official  opinion  upon  a  call  of  either 
House  of  Congress  or  any  committee  or  Member 
thereof.     (17  Op.  Atty.  Gen.,  358.)  _ 

The  Attorney  General  can  not,  without  vio- 
lating his  oath ,  render  an  opinion  to  the  Speaker 
upon  the  order  of  the  House  of  Representatives. 
(1  Op.  Atty.  Gen.,  335.) 


The  Attorney  General  is  not  authorized  by 
law  to  give  an  official  opinion  to  the  House  of 
Ile])resentatives  in  response  to  a  resolution 
tliereof.  (18  Op.  Atty.  Gen.,  87;  citing  2  Op. 
Atty.  Gen.,  499;  5  Op.  Atty.  Gen.,  561;  10  Op. 
Atty,  Gen.,  164;  12  Op.  Atty.  Gen.,  544;  12  Op. 
Atty.  Gen.,  546;  14  Op.  Atty.  Gen.,  17;  14  Op. 
Atty.  Gen.,  177;  15  Op.  Atty.  Gen.,  475.) 

It  is  not  within  the  ])rovince  of  the  Attorney 
General  to  advise  committees  of  Congress  upon 
questions  of  law  occurring  in  matters  before 
them.     (14  Op.  Atty.  Gen.,  17.) 

[The  Attorney  General  rendered  a  lengthy 
opinion  to  the  Senate  Committee  on  Interstate 
Commerce,  May  5,  1905,  which  is  published 
with  the  following  note:  "This  opinion,  prop- 
erly speaking,  is  not  an  official  one,  but  is  to  be 
regarded  as  a  letter  of  adA'ice.  It  is  printed 
with  the  official  opinions  solely  because  of  the 
importance  of  the  subject  considered."  (25 
Op.  Atty.  Gen.,  422.)  The  Attorney  General 
has  also  rendered  an  opinion  to  the  House  of 
Representatives.  (1  Op.  Atty.  Gen.,  253.) 
Compare  30  Op.  Atty.  Gen.,  88.] 

II.  Must  be  Question  op  Law. 

In  General. — The  authority  of  the  Attorney 
General  to  give  opinions  is  limited  by  Congress 
to  "questions  of  law,"  (20  Op.  Atty.  Gen., 
590.) 

The  Attorney  General  can  not  give  official 
opinions  except  upon  questions  of  law.  (21 
Op.  Atty.  Gen.,  36.) 

Being  thus  limited  to  questions  of  law,  the 
Attorney  General  has  not  been  clothed  with 
power  to  investigate  matters  of  fact.  He  has 
no  authority  to  compel  the  attendance  of  wit- 
nesses, or  to  administer  oaths  to  them;  and  in 
short  has  none  of  the  machinery  by  which, 
through  the  control  of  persons  and  papers, 
truth  may  be  elicited  and  falsehood  exposed. 
Tlius  deficient  in  the  means  of  ascertaining  the 
facts,  his  conclusions  u])on  the  law  would  nec- 
essarily be  valueless,  since  their  accuracy  would 
depend  on  the  fullness  and  certainty  with 
which  the  facts  were  established.  (10  Op. 
Atty.  Gen.,  164.) 

Can  not  decide  questions  of  fact. — The 
Attorney  General  has  no  ])ower  to  investigate 
or  decide  questions  of  fact,  but  only  to  give 
advice  on  questions  of  law  as  they  arise  out  of 
facts  authoritatively  laid  before  him  by  the 
head  of  a  department.   (JO  Op.  Atty.  Gen.,  267.) 

It  is  not  the  province  of  the  Attorney  General 
to  settle  a  controversy  involving  matters  of  fact. 
He  can  only  give  his  opinion  on  questions  of 
law.  _  (12  Op.  Atty.  Gen.,  206.) 

It  is  not  within  the  competency  of  the  Attor- 
ney General  to  make  a  finding  of  facts  in  any 
case,  but  he  can  only  give  an  opinion  on  ques- 
tions of  law  arising  upon  a  statement  of  facta 
presented  to  him  by  the  officer  requesting  an 
opinion.     (19  Op.  Atty.  Gen.,  696.) 

Tlie  Attorney  General  only  has  jurisdiction 
of  questions  of  law,  and  must  be  furnished  with 
a  definite  statement  of  the  facts.  (21  Op.  Atty, 
Gen.  36;  see  also  1  Op.  Atty.  Gen.,  253.) 

As  the  Attorney  General  is  not  at  liberty 
under  the  law  to  make  a  finding  of  facts,  he  will 
lay  aside  the  evidence  submitted  for  his  con- 
sideration with  request  for  an  opinion,  and  take 
as  the  case  for  opinion  the  statement  contained 


296 


Justice  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  366. 


in  the  communication  from  the  head  of  the 
department.     (19  Op.  Atty.  Gen.,  547.) 

The  Attorney  General  is  not  permitted  by 
law  to  render  an  official  opinion  to  the  head  of  a 
department  upon  questions  of  fact.  (21  Op. 
Atty.  Gen.,  174;  citing  20  Op.  Atty.  Gen.,  697, 
711,717,740.) 

The  Attorney  General  is  under  no  obligation 
to  render  an  award,  or  to  determine  a  question 
of  fact  in  cases  referred  to  him.  (6  Op.  Atty. 
Gen.,  326, 334.) 

The  law  is  settled  that  the  Attorney  General 
can  not  properly  decide  questions  of  fact.  Such 
questions  must  be  determined  by  the  head 
of  the  department  in  which  they  arise.  (20 
Op.  Atty.  Gen.,  384.) 

The  Attorney  General,  in  discharging  the 
duties  imposed  upon  him  by  section  356,  Re- 
vised Statutes,  is  required  only  to  answer  ques- 
tions of  law  and  can  not  consider  questions  of 
fact  upon  evidence  submitted.  Where  papers 
containing  e\'idence  accompany  the  request  for 
tlie  Attorney  General's  opinion,  he  will  not  ex- 
amine same,  but  will  assume  that  all  the  facts 
have  been  found  in  favor  of  the  applicant.  (20 
Op.  Atty.  Gen.,  253.) 

The  Attorney  General  has  no  authority  to 
give  an  official  opinion  upon  questions  of  fact 
submitted  by  the  head  of  a  department.  (3  Op. 
Atty.  Gen.,  1.) 

It  is  obvious  thpt  when  the  Attorney  General 
proceeds  to  give  his  opinion  and  ad^^.ce  on  any 
question  of  law  the  facts  giving  rise  to  such 
question  must  be  either  stated  to  or  assumed  by 
him;  and  when  the  head  of  the  department 
calUng  for  his  opimon  gives  him  those  facts,  he 
must  necessarily  adopt  them  as  the  bases  of  his 
reflections  and  judgment.  Whether  they  are 
presented  in  the  form  of  a  direct  statement  or  of 
an  argumentative  examination  of  the  circum- 
stances can  make  no  difference.  In  either  case 
it  would  be  manifestly  improper  to  receive  from 
any  other  source  statements  or  inferences  con- 
flicting with  those  which  are  put  before  him 
by  the  only  authority  legally  known  to  him  in 
the  premises.  To  act  otherwise  would  involve 
a  usurpation  of  power;  for  it  would  be  convert- 
ing an  office  created  for  the  sole  purpose  of  assist- 
ing and  advising  the  executive  departments 
on  questions  of  law  into  an  appellate  tribunal 
for  the  reexamination  of  their  decisions  on  mat- 
ters of  fact.     (3  Op.  Atty.  Gen.,  1.) 

The  Attorney  General  has  no  authority  to  set- 
tle questions  of  fact.  He  is  obliged  to  take  the 
facts  of  a  case  as  they  are  stated  to  him  and  to 
predicate  his  opinion  thereon.  (3  Op.  Atty. 
Gen.,  309.) 

It  has  been  held  from  a  very  early  date  that 
an  official  opinion  can  be  recjuired  and  given 
only  when  the  question  submitted  is  a  question 
of  law.     (20  Op.  Atty.  Gen.,  614.) 

The  Attorney  General  can  not  undertake  to 
settle  conflicting  questions  of  fact  raised  by 
various  papers  submitted,  but  \'iiil  look  to  the 
submitted  statement  of  facts  alone.  (22  Op. 
Atty.  Gen.,  156.) 

The  Attorney  General's  duty  is  limited  to 
questions  of  law  arising  in  the  administration  of 
the  respective  departments.  Where  the  sub- 
ject matter  is  not  of  that  character,  and  conse- 
quently not  within  the  scope  of  duty  thus 


marked  out,  he  is  without  authority  to  officially 
advise  thereon.     (18  Op.  Atty.  Gen.,  365.) 

^Vhat  constitutes  prompt  delivery  by  a  con- 
tractor is  a  question  of  fact,  in  regard  to  which 
the  Attorney  General  is  not  required  to  express 
an  opinion.     (28  Op.  Atty.  Gen.,  47.) 

The  Attorney  General  declines  to  render  an 
opinion  upon  a  matter  submitted  which  in- 
volves the  determination  of  questions  of  fact 
(26  Op.  Atty.  Gen.,  604.) 

The  advisory  powers  of  the  Attorney  General 
do  not  extend  to  an  examination  of  e\idence  to 
ascertain  what  is  established  by  a  preponder- 
ance of  the  testimony  (citing  17  Op.  Atty.  Gen., 
172);  nor  can  he  settle  facts  from  papers  sub- 
mitted, and  then  proceed  to  give  an  opinion 
thereon  (citing  18  Op.  Atty.  Gen.,  487;  19  Op. 
Atty.  Gen.,  672).     (28  Op.  Atty.  Gen.,  218.) 

The  Attorney  General  will  not  enter  into  the 
consideration  of  disputed  questions  of  evi- 
dence.    (28  Op.  Atty.  Gen.,  239.) 

The  Attorney  General  will  not  undertake  to 
find  the  facts  involved  in  a  request  for  an 
opinion.     (28  Op.  Atty.  Gen.,  393.) 

WTiere  the  record  of  a  court-martial  trial  waa 
sent  to  the  Attorney  General  by  the  President 
for  a  report,  among  other  things,  upon  the  ques- 
tion whether  it  contained  any  "unjustified  con- 
clusion of  fact "  which  would  render  it  the  duty 
of  the  President  to  withhold  approval  of  the 
findings  of  the  court-martial,  or  any  part  thereof, 
and  generally  to  ad\ise  the  President  as  to  the 
action  he  should  take  upon  the  record  as  trana- 
mitted  to  him  from  the  court-martial;  the  At- 
torney General  rendered  an  opinion  upon  the 
questions  of  fact  thus  presented,  as  well  as  upon 
the  questions  of  law  involved.  (Case  of  Capt. 
Oberlin  M.  Carter,  U.  S.  A.,  22  Op.  Atty.  Gen., 
589.) 

In  general,  the  Attorney  General  will  render 
an  opinion  to  the  Secretary  of  the  Navy  upon 
questions  of  law  presented  by  the  records  of 
court-martial  proceedings  (28  Op.  Atty.  Gen., 
286;  29  Op.  Atty.  Gen.,  563;  C.  M.  O.  No.  4— 
1913);  but  will  not  render  an  opinion  to  the 
Secretary  of  the  Navy  upon  questions  of  fact 
connected  the^e^vith  nor  review  the  proceedings 
of  a  court-martial  in  search  of  questions  of  law. 
(5  Op.  Atty.  Gen.,  626.) 

Can  not  decide  questions  of  expediency, 
administrative  discretion,  etc. — The  advisa- 
bility of  bringing  a  suit  is  not  a  question  of 
law  upon  which  the  Attorney  General's  opinion 
may  be  asked.     (20  Op.  Atty.  Gen.,  702.) 

The  Attorney  General  can  not  with  propriety 
express  any  judgment  concerning  the  disposi- 
tion of  the  matter  to  which  his  opinion  relates, 
that  being  something  wholly  within  the  admin- 
istrative sphere  and  direction  of  the  head  of  the 
department.  The  Attorney  General's  duty 
ends  with  the  rendition  of  the  opinion.  (17  Op. 
Atty.  Gen.,  332.) 

The  Attorney  General's  opinion  iipon  a  purely 
administrative  matter  entirely  within  the  dis- 
cretion of  the  head  of  a  department  must  be  con- 
sidered CAtra-official  and  as  coming  from  one 
whose  lack  of  practical  knowledge  of  the  admin- 
istration of  the  department  makes  his  opiiuon 
on  this  point  far  inferior  in  value  to  that  of  the 
head  of  the  department  to  whom  it  is  addressed. 
(20  Op.  Atty.  Gen.,  654,  658.) 


297 


Sec.  366. 


Pt.  2.  REVISED  STATUTES. 


Justice  Department. 


The  Attorney  General  is  not  authorized  to 
give  an  oiiicialopinion  upon  a  nuestion  which 
proposes  for  his  consideration  nothing  more  than 
a  subject  of  controversy  between  subordinates 
of  a  department  and  private  parties.  (18  Op. 
Atty.  Gen.,  365.} 

Inquiries  involA-ing  considerations  of  adminis- 
trative discretion  and  judgment,  of  practica- 
bility and  advisability,  must  be  solely  deter- 
mined by  the  head  of  the  department  in  his 
discretion.     (24  Op.  Atty.  Gen.,  118.) 

Where  there  is  no  doubt  that  terms  are  used  in 
a  statute  in  their  ordinary  acceptation,  the  duty 
of  applying  the  statute  to  a  particiilar  state  of 
facts  IS  one  of  administration  merely,  involving 
the  determination  of  questions  of  fact,  and  the 
duty  of  applying  the  statute  to  the  facts  can  not 
be  devolved  upon  the  Attorney  General.  (20 
Op.  Atty.  Gen.,  487.) 

The  Attorney  General  can  not,  with  propri- 
ety, give  an  otticial  opinion  to  the  head  of  a  de- 
partment upon  the  qxiestion  whether  it  is  expe- 
dient for  him  to  prosecute  an  appeal  from  the 
decision  of  a  chief  of  bureau  in  another  depart- 
ment to  the  latter's  superior  in  the  same  de- 
partment. The  question  is  not  necessarily  one 
of  law,  but  may  involve  merely  official  discre- 
tion. Any  questions  of  law  which  arise  may  be 
presented  to  the  Attorney  General  by  the  head 
of  the  department  in  which  the  appeal  is  pend- 
ing.    (15  Op.  Atty.  Gen.,  574.) 

The  Attorney  General  is  not  authorized  to  ex- 
press any  views  upon  a  matter  of  propriety  lying 
within  the  executive  jiidgment  and  discretion 
of  the  head  of  the  department  requesting  the 
opinion.     (25  Op.  Atty.  Gen.,  93.) 

It  is  not  within  the  pro^^nce  of  the  Attorney 
General  to  constnie  the  reasons,  affecting  his 
administrative  judgment  and  discretion,  which 
might  impel  the  head  of  a  departrnent  to  take 
any  action  one  way  or  the  other  in  a  matter 
pending  before  him  for  decision;  he  is  neither 
empowered  nor  required  to  pass  upon  the  pro- 
priety of  the  exercise  by  the  head  of  a  depart- 
ment of  an  official  discretion.  (25  Op.  Atty. 
Gen.,  524.) 

Whether  charges  proposed  to  be  made  by  the 
Secretary  of  Agrictilt\ire  for  the  use  of  lands  or 
resources  within  the  limits  of  the  national-forest 
reserves  would  or  would  not  be  reasonable  is  a 
matter  left  by  law  entirely  to  the  Secretary's 
discretion.  The  responsibility,  as  well  as  the 
power,  rests  with  the  Secretary.  It  is  not, 
therefore,  a  question  which  can  properly  be  de- 
termined by  the  Attorney  General.  (26  Op. 
Atty.  Gen.,  421.) 

An  inquiry  which  raises  a  question  of  pro- 
priety and  expediency,  rather  than  a  question 
of  law,  is  one  to  be  determined  by  the  head  of 
the  department  only,  and  upon  which  the  At- 
torney General  can  not  advise.  [In  this  case, 
however,  the  Attorney  General  stated  that  he 
agreed  with  the  officer  requesting  his  opinion, 
that  the  action  proposed  was  of  very  doubtful 
expediency.]     (26  Op.  Atty.  Gen.,  579.) 

The  Attorney  General  declines  to  express  an 
opinion  to  the  Secretary  of  the  Treasury  as  to 
the  propriety  of  a  proposed  instruction  to  cxis- 
toms  officials,  as  he  is  not  authorized  to  express 
his  ^'iews  upon  matters  of  propriety  involving 
executive  judgment  and  discretion.  (25  Op. 
Atty.  Gen.,  94.) 


The  advisory  powers  of  the  Attorney  General 
do  not  extend  to  a  question  which  would  appear 
to  turn  wholly  tipon  a  conclusion  of  fact  as  to 
the  status  of  a'bidder,  and  to  involve,  therefore, 
the  exercise  of  judgment  and  discretion  by  the 
head  of  the  department,  with  which  the  Attor- 
ney General  can  not  under  the  law  or  with  pro- 
priety interfere.     (28  Op.  Atty.  Gen.,  218.) 

The  Attorney  General  refrains  from  adAdsing 
as  to  the  propriety  of  issuing  a  regulation.  (25 
Op.  Atty.  Gen.,  93.) 

Can  not  construe  executive  regula- 
tions.— It  is  the  province  of  the  head  of  a 
department,  rather  than  of  the  Attorney  Gen- 
eral, to  construe  regulations  issued  by  the  for- 
mer.    (21  Op.  Atty.  Gen.,  36.) 

The  Attorney  General  will  not  interpret  a 
regulation  of  practice  made  by  the  Commis- 
sioner of  Patents  for  his  own  guidance  and  that 
of  his  stibordinates  for  the  convenient,  intelli- 
gent, and  orderly  disposal  of  the  business  of  hia 
office.  Such  regfulations,  which  the  heads  of 
bureaus  and  departments  can  make,  modify,  or 
annul  at  will,  or  enforce  or  waive,  as  seems  ex- 
pedient, may  well  be  left  for  their  interpreta- 
tion to  the  head  of  the  department  or  bureau  to 
which  they  pertain.  (18  Op.  Atty.  Gen.,  521.) 
A  regulation,  when  not  specially  authorized 
or  demanded  by  law,  is  not  law  in  the  sense  in 
which  that  term  is  tised  in  this  section.  _  It  is 
simply  a  rule  of  administrative  practice  in  the 
present  instance  with  reference  to  the  classifica- 
tion and  order  of  precedence  in  the  considera- 
tion of  cases  in  the  Patent  Office.  (18  Op.  Atty. 
Gen.,  521.) 

The  construction  of  regulations  of  the  Civil 
Service  Commission  is  a  matter  entirely  within 
the  province  of  the  commission,  and  should 
not  be  attempted  by  the  Attorney  General. 
Where  the  question  presented  is  whether  the 
regulation  is  one  that  was  ■within  the  power  of 
the  commission  to  make,  the  Attorney  General's 
answer  will  be,  that  if  the  regulation  is  con- 
stnied  to  mean  thus  and  so,  it  is  a  lawful  regu- 
lation; otherwise,  it  is  unauthorized.  (20  Op. 
Atty.  Gen.,  649.) 

The  Attorney  General  can  not  give  an  official 
opinion  upon  the  construction  of  customs  regu- 
lations, which  may  be  modified,  at  any  time 
by  the  Secretary  "of  the  Treasury.  (21  Op. 
Atty.  Gen.,  255.) 

A  departmental  regulation  _  which  is  not 
demanded  by  law  is  not  law  in  the  sense  in 
which  that  term  is  used  in  section  356.  It  may 
more  properly  be  left  for  interpretation  by  the 
head  of  the  department  or  bureaii  to  which 
it  pertains,  and  wliich  is  responsible  for  its 
existence  and  execution.  As  the  basis  of  the 
regulation  is  to  be  found  only  in  the  will  of  its 
maker,  to  ad\-ise  him  what  meaning  his  lan- 
guage conveys  would  be  useless,  since  an  inter- 
pretation unsuitable  to  him  could  only  result 
m  a  revision.     (25  Op.  Atty.  Gen.,  183.) 

Will  decide  whether  proposed  or  exist- 
ing regulation  is  legal. — ^The  question  as  to 
the  power  of  an  executive  officer  to  issue  a  rule 
or  regulation  or  as  to  its  legality,  is  distinguished 
from  a  question  as  to  the  proper  interpretation 
of  a  regulation,  wliich  latter  question  the  Attor- 
ney General  will  not  answer.  (18  Op.  Atty. 
Gen.,  521;  20  Op.  Atty.  Gen.,  649.) 


298 


Justice  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  356. 


The  Attorney  General  will  examine  regula- 
tions proposed  to  be  issued  by  the  Secretary  of 
the  Treasury  for  the  information  of  residents  of 
the  United  States  returning  from  foreign  coun- 
tries, and  decide  whether  or  not  same  are  in 
harmony  with  the  tariff  act,  and  legal.  (25 
Op.  Atty.  Gen.,  93.) 

Similarly,  the  Attorney  General  will  render 
an  opinion  to  the  Secretary  of  the  Navy  as  to 
the  latter' s  authority  to  make  certain  proposed 
changes  in  Navy  Reflations.  (29  Op.  Atty. 
Gen.,  264;  also  unpublished  opinion,  Oct.  27, 
1909,  file  3980-530.) 

The  Attorney  General  will  examine  a  pro- 
posed regulation  of  the  State  Department  with 
reference  to  the  compensation  of  consular 
agents,  and  decide  that  such  regulation,  "being 
consistent  with  the  provisions  of  law,  may  be 
carried  into  effect."     (22  Op.  Atty.  Gen.,  163.) 

The  Attorney  General  will  not  render  an 
opinion  as  to  whether  or  not  certain  proposed 
regulations  may  be  adopted  and  put  into  effect 
by  the  head  of  a  Department,  unless  it  affirma- 
tively appear  that  such  head  of  Department,  as 
a  matter  of  policy  and  administrative  discre- 
tion, is  prepared  or  intends  to  adopt  such  regu- 
lations or  any  modification  thereof,  provided 
such  action  would  be  legal  on  his  part;  as  it  is 
only  then  that  a  question  of  this  character  can 
be  said  to  have  so  arisen  in  the  administration 
of  the  department  as  to  come  witliin  the  terms 
of  section  356,  Revised  Statutes.  (27  Op.  Atty. 
Gen.,  49.) 

The  Attorney  General  can  not  answer  the 
question  whether  a  regulation  if  issued  could 
be  enforced,  as  it  is  hypothetical  as  well  as 
judicial.  (25  Op.  Atty.  Gen.,  93.)  (However, 
m  this  case,  in  view  of  the  special  object  of  the 
proposed  regulation,  the  Attorney  General 
states  that,  while  refraining  from  advising  as  to 
the  propriety  of  issuing  the  regulation,  or  aa  to 
its  fate  if  it  should  come  before  the  courts,  "it 
does  not  seem  to  me,  speaking  from  the  present 
standpoint,  that  its  general  legality  can  be 
seriously  questioned.") 

The  validity  of  a  Navy  regulation,  as  applied 
to  cases  that  might  arise  in  the  future,  is  hardly 
a  proper  subject  for  the  Attorney  General  to 
pass  upon.  (28  Op.  Atty.  Gen.,  129,  citing 
20Op.  Atty.  Gen.,  738.) 

The  law  does  not  require  the  Attorney  Gen- 
eral to  undertake  the  task  of  examining  codes 
of  rules  adopted  to  meet  future  cases.  The 
establishment  of  such  a  practice  would  require 
his  entire  time,  and  necessitate  the  imagining 
of  the  various  contingencies  in  which  their 
validity  might  in  future  cases  be  questioned, 
and  passing  judgment  on  these  possible  future 
problems.     (20  Op.  Atty.  Gen.,  738.) 

The  Attorney  General  will  render  an  opinion 
as  to  whether  or  not  an  existing  regulation  is 
legal.  (20  Op.  Atty.  Gen.  649;  30  Op.  Atty. 
Gen.,  234.) 

The  Attorney  General  will  determine  that  a 
Navy  regulation  is  valid  and  "has  binding 
force  upon  the  accounting  officers  of  the  Gov- 
ernment." (Op.  Atty.  Gen.,  May  19,  1915,  171 
S.  and  A.  Memo.,  8611.) 

Will  not  advise  as  to  foreign  law. — The 
existence  of  a  foreign  law  is  a  question  of  fact 
to  be  proved  by  competent  evidence.  The 
Attorney  General  can  not  give  an  opinion  as 


to  the  law  of  a  foreign  nation.  Whether  the 
statements  of  a  foreign  ambassador  as  to  the 
true  construction  of  the  legislation  of  his  own 
Governmentand  the  practice  thereunder  should 
be  accepted  as  true  is  a  question  to  be  decided 
by  the  Secretary  of  State  and  not  by  the  Attor- 
ney General.  (21  Op.  Atty.  Gen.,  377;  21  Op. 
Atty._  Gen.,  80;  file  26543-124,  Aug.  4,  1914. 
In  this  connection,  see  7  Op.  Atty.  Gen.,  9.) 

Will  not  examine  and  approve  blank 
forms. — The  law  does  not  require  the  Attor- 
ney General  to  examine  and  approve  forms  of 
obligations,  permits,  bonds,  and  affidavits  for 
future  use  in  the  other  departments.  The 
establishment  of  such  a  practice  would  require 
his  entire  time  and  necessitate  the  imagining 
of  the  various  contingencies  in  which  their 
validity  might  in  future  be  questioned  and 
passing  judgment  on  these  possible  future 
problems.  (20  Op.  Atty.  Gen.,  738.  But  see 
27  Op.  Atty.  Gen.,  173;  and  file  3355-88, 
Nov.  7,  1906.) 

Questions  as  to  desirability  of  changing 
the  law. — This  section  limits  the  functions  of 
the  Attorney  General,  in  the  matter  of  opinions 
requested  by  the  heads  of  departments,  to 
questions  arising  out  of  the  law  as  it  is,  and 
does  not  seem  to  call  upon  him  to  give  his  views 
and  opinions  upon  the  advisability  of  making 
changes  by  treaty  in  any  department  of  juris- 
prudence.    (19  Op.  Atty.  Gen.,  598.) 

[However,  in  6  Opinions  Attorney  General, 
432,  the  Attorney  General  expressed  the  view 
that  "  Congress  may  undoubtedly  relax  the  law 
in  this  case,"  but  that  it  seemed  to  him  "pre- 
mature" to  do  so  in  the  existing  status  of  the 
matter.  In  22  Opinions  Attorney  General,  512, 
he  suggested  "  that  relief  be  had  through  Con- 
gressional action;"  in  24  Opinions  Attorney 
General,  69,  he  stated,  "  I  have  the  honor  to 
say,  responding  to  your  alternative  suggestion, 
that  it  may  be  well  to  propose  to  Congress 
legislation  which  shall  explicitly  authorize  the 
issue  of  letters  rogatory  by  the  Patent  Office  of 
the  United  States,  and  shall  clothe  Federal 
courts  with  the  power  to  execute  letters  issued 
by  those  patent  offices  of  recognized  powers 
which  possess  and  exercise  well  defined  judicial 
functions;"  in  25  Opinions  Attorney  General, 
98,  he  suggested  "  that  Congressional  action  be 
sought  to  provide  for  the  various  features  of 
expense,  compensation  to  the  Government  or 
its  officers,  official  liability  for  the  faithful  per- 
formance of  the  trust,"  etc.;  on  May  27,  1909, 
he  submitted  draft  of  a  bill  to  the  Secretary  of 
the  Navy,  with  suggestion  that  it  be  introduced 
in  Congress  for  the  purpose  of  curing  defects  in 
a  law  considered  by  him  in  an  official  opinion. 
File  22724-7i.  See  also  26  Op.  Atty.  Gen., 
70,  74.] 

III.  Must    Arise    in    Administration     op 
Department. 

Will  not  answ^er  hypothetical  question. — 

The  Attorney  General  will  not  give  a  specula- 
tive opinion  on  an  abstract  question  of  law 
which  does  not  arise  in  any  case  presented  for 
the  action  of  an  executive  department.  (11 
Op.  Atty.  Gen.,  189;  20  Op.  Atty.  Gen.,  288, 
440;  28  Op.  Atty  Gen.,  129,  239,  417;  29  Op. 
Atty.  Gen.,  99;  22  Op.  Atty.  Gen.,  77;  com- 
pare 28  O^.  Atty.  Gen.,  34,  38.^ 


54641°— 22- 


■20 


299 


Sec.  356. 


Pt.t.  REVISED  STATUTES. 


Justice  Department. 


It  has  been  held  from  a  very  early  day  that 
an  ollicial  opinion  can  be  required  and  given 
onlv  when  the  question  for  decision  is  one 
which  has  already  actually  arisen,  and  not  a 
question  upon  a  hypothetical  case  which  may 
or  may  not  arise  in  the  future.  (20  Op.  Atty. 
Gen.,  614.) 

The  opinion  of  the  Attorney  General  may  be 
required  on  questions  of  law  arising  in  the 
administration  of  a  department,  but  not  \ipon 
hypothetical  cases  merely.  Q3  Op.  Atty.  Gen., 
531;  19  Op.  Atty.  Gen.,  414.) 

It  is  not  the  duty  or  practice  of  the  Attorney 
General  to  officially  answer  abstract  or  hypo- 
thetical questions  of  law.  (13  Op.  Atty.  Gen., 
568;  19  Op.  Atty.  Gen.,  414.) 

To  attempt  in  advance  to  settle  such  ques- 
tions is  to  anticipate  trouble,  and  it  may  well 
be  added,  to  promote  trouble.  (19  Op.  Atty. 
Gen.,  414;  13  Op.  Atty.  Gen.,  531;  9  Op.  Atty. 
Gen.,  421;  20  Op.  Atty.  Gen.,  440.) 

The  Attorney  General  is  not  required  to  write 
abstract  essays  on  any  subject.  (20  Op.  Atty. 
Gen.,  440;  9  Op.  Atty.  Gen.,  82.)  . 

The  inconvenience  will  be  readily  perceived 
of  giving,  upon  a  hypothetical  case,  an  opinion 
which,  upon  the  consideration  of  an  actual  case, 
may  require  modification  on  account  of  circum- 
stances not  imagined,  and  therefore  not  con- 
sidered in  the  preparation  of  the  opinion.  (13 
Op.  Atty.  Gen.,  531;  19  Op.  Atty.  Gen.,  414; 
20  Op.  Atty.  Gen.,  440.) 

The  Attorney  General  is  not  permitted,  by 
statute  or  precedent,  to  give  an  opinion  upon  a 
question  which  does  not  spring  out  of  any 
present,  actually  existing  case  arising  m  the 
administration  of  the  department  requesting  the 
opinion,  but  which  is  a  question  in  a  hypotheti- 
cal case,  and  one,  indeed,  which  may  never 
arise,  and  calls  in  advance  for  an  opinion  as  to 
what  the  department  would  hold  in  the  future 
upon  a  somewhat  indefinite  state  of  facts. 
(19  Op.  Atty.  Gen.,  414.) 

The  Attorney  General,  for  obvious  reasons, 
must  decline  to  answer  a  hypothetical  question. 
He  will  not,  therefore,  render  an  opinion  upon 
a  question  which,  is  not  actually  pending  at  the 
time  before  the  head  of  the  department  request- 
ing it.     (20  Op.  Atty.  Gen.,  251.) 

The  inquiry  must  relate  not  to  a  mere  moot 
question  but  to  one  which  requires  immediate 
action.  The  answer  must  be  necessary  for  the 
protection  of  the  officer  making  the  inquiry,  or 
to  insure  the  lawfulness  of  the  action  which  he 
is  about  to  take.  (21  Op.  Atty.  Gen.,  509.) 
It  has  been  the  uniform  practice  of  the  De- 

Eartment  of  Justice,  established  by  an  unbroken 
ne  of  opinions,  to  decline  to  give  an  opinion 
upon  a  question  of  law  which  will  be  of  no  assist- 
ance to  the  head  of  a  department  or  the  officers 
under  him  in  the  proper  and  complete  per- 
formance of  their  duties;  the  necessity  for  such 
a  practice  is  at  once  apparent,  and  unless  it  be 
rigorously  adhered  to_,  the  Attorney  General 
will  frequently  find  himself  placed  in  the  em- 
barrassing situation  of  being  called  iipon  to  ren- 
der opinions  upon  mere  moot  questions  of  law. 
(25  Op.  Atty.  Gen.,  543.) 

It  is  beyond  the  competency  of  the  Attorney 
General  to  give  an  official  opinion  upon  a  ques- 
tion which  is  purely  abstract  and  hypothetical, 


and  not  arising  out  of  an  actual  case  calling  for 
official  action.     (19  Op.  Atty.  Gen.,  559,  564.) 

It  is  impossible  to  reply  to  mere  speculative 
points  or  supposed  cases.  It  has  always  been 
the  rule  of  the  Attorney  General  to  give  opin- 
ions only  in  actual  cases.  (9  Op.  Atty.  Gen., 
82;  19  Op.  Atty.  Gen.,  414;  25  Op.  Atty.  Gen., 
440.) 

Whether  the  head  of  a  department  should 
enter  into  a  certain  contract,  is  hypothetical  in 
its  nature,  unless  it  should  be  afiirmatively 
stated,  in  substance,  that  the  acceptance  of  the 
proposal  ha\'ing  been  determined  to  be  proper 
and  ad\dsable  from  the  administrative  point  of 
view,  and  the  head  of  the  department  being 
ready,  accordingly,  to  enter  into  a  contract, 
desired  to  kno^/  whether  that  step  was  justified 
by  existing  provisions  of  law.  (24  Op.  Atty. 
Gen.,  118.) 

Whether  a  regulation,  if  issued,  could  be  en- 
forced, is  hypothetical  as  well  as  judicial;  in- 
volving speculation,  as  if  the  requirement  is 
adopted,  proceedings  in  court  to  enforce  it  may 
or  may  not  be  successful.  (25  Op.  Atty.  Gen., 
93.) 

Whether  certain  regulations  may  be  adopted 
and  put  into  effect  by  the  head  of  a  department 
is  hypothetical,  unless  the  head  of  the  depart- 
ment has  decided  to  adopt  such  regulations  or 
any  modification  thereof,  provided  such  action 
would  be  legal  on  his  part;  and  it  is  only  under 
these  circumstances  that  the  Attorney  General 
can  render  an  opinion  on  the  subject,  as  it  is 
only  then  that  a  question  of  this  character  can 
be  said  to  have  so  arisen  in  the  administration 
of  the  department  as  to  come  within  the  terms 
of  section  356.     (27  Op.  Atty.  Gen.,  49.) 

The  Attorney  General  is  prohibited  by  the 
restriction  contained  in  section  356,  Revised 
Statutes,  from  giving  an  opinion  unless  an 
occasion  has  actually  arisen  requiring  the  action 
of  the  head  of  the  department  submitting  it. 
(20  Op.  Atty.  Gen.,  583.) 

The  established  practice  of  the  Department 
of  Justice  has  been  to  consider  this  section  as 
containing  an  implied  prohibition  against  the 
rendering  of  an  opinion  by  the  Attorney  Gen- 
eral unless  upon  a  question  of  law  which  has 
actually  arisen,  and  not  upon  one  which  might 
or  could,  under  certain  contingencies,  arise  in 
the  administration  of  the  department  request- 
ing the  opinion.     (27  Op.  Atty.  Gen.,  49.) 

The  settled  policy  of  the  Attorney  General  is 
that  no  opinion  should  be  rendered  upon  any 
question  of  law  unless  it  is  specifically  formu- 
lated in  a  case  actually  arising  in  the  adminis- 
tration of  a  department.  (24  Op.  Atty.  Gen., 
59.) 

The  Attorney  General  declines  to  give  an 
opinion  as  to  the  meaning  of  a  statute,  where 
the  question  does  not  appear  to  have  arisen  in 
the  administration  of  the  department  propos- 
ing it.     (19  Op.  Atty.  Gen.,  695.) 

In  accordance  with  the  well-established  rule, 
declines  to  answer  the  question  whether  citizens 
of  the  Philippine  Islands  are  entitled  to  the 
benefits  of  the  patent  laws  of  the  United  States, 
there  being  no  case  invohang  that  question 
pending  before  the  department' making  the  in- 
quhy.     (25  Op.  Atty.  Gen..  179.) 

Declines  to  express  an  opinion  as  to  whether 
a  joint  resolution  has  any  retroactive  force,  for 

300 


Justice  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  366. 


the  reason  that  the  question  is  not  predicated 
upon  any  actual  case  arising  in  the  department 
requesting  it.     (24  Op.  Atty.  Gen.,  556.) 

Where  no  occasion  has  arisen  for  the  official 
action  of  a  head  of  department,  the  Attorney 
General  will  not  give  an  opinion  upon  a  ques- 
tion proposed  by  him.  (21  Op.  Atty.  Gen., 
457.) 

Will  not  answer  question  which  is  not 
"pending,"  has  already  been  decided, 
etc. — It  is  required  not  only  that  the  question 
must  be  one  arising  in  the  administration  of  a 
department,  but  it"  must  be  one  which  is  still 
pending.  A  matter  which  has  been  consid- 
ered and  decided  is  not  now  a  "  question"  upon 
which  the  head  of  a  department  may  require 
an  opinion  of  the  Department  of  Justice.  (20 
Op.  Atty.  Gen.,  440;  28  Op.  Atty.  Gen.,  596.) 

Where  a  claim  has  already  been  administered 
by  the  head  of  a  department,  and  consequently 
no  question  remains,  the  Attorney  General  will 
not  render  an  opinion  even  though  the  head  of 
the  department  submits  the  question  to  him  at 
the  request  of  a  committee  of  Congress.  ( 15  Op . 
Atty.  Gen.,  138.) 

To  authorize  the  Attorney  General  to  express 
an  opinion  upon  a  question  of  law  propounded, 
it  is  necessary  that  a  statement  of  facts  should 
be  submitted  showing  that  the  question  has 
actually  arisen  in  the  administration  of  a  de- 
partment, in  an  existing  case  calling  for  action. 
He  is  not  authorized  to  answer  an  inquiry  with 
reference  to  action  already  taken,  whether  re- 
garded as  an  abstract  question  of  law  or  an  in- 
quiry into  the  legality  of  the  course  of  a  prede- 
cessor in  office  in  matters  not  now  demanding 
official  action.     (22  Op.  Atty.  Gen.,  85.) 

The  Attorney  General  declines  to  give  an 
opinion  upon  a  question  submitted  which  ap- 
pears to  have  been  decided  and  definitively 
disposed  of  by  the  department.  (3  Op.  Atty. 
Gen.,  39;  20  Op.  Atty.  Gen.,  440.) 

A  question  is  not  practically  raised  in  a  case 
where  the  Attorney  General's  opinion  is  de- 
sired only  because  the  same  difficulty  which  has 
previously  arisen  may  occur  again;  but  it  may 
not,  and  to  settle  it  in  advance  is  to  anticipate 
trouble.  (9  Op.  Atty.  Gen.,  421:  20  Op.  Atty. 
Gen.,  440.) 

The  Attorney  General  can  give  official  opin- 
ions only  upon  questions  of  law  actually  arising 
in  the  administration  of  the  department,  which 
are  at  the  time  pending,  and  which  must  be  de- 
termined in  order  that  the  work  of  the  depart- 
ment may  be  properly  administered.  (20  Op. 
Atty.  Gen.,  618.) 

The  Attorney  General  will  not  give  an  opin- 
ion upon  a  question  where  it  appea,rs  that  the 
department  has  reached  a  decision  thereupon, 
and  that  an  opinion  is  desired  as  to  the  "  correct- 
ness of  the  interpretations  and  applications  of 
said  law."  (28  0p.  Atty.  Gen.,  596; 20  Op.  Atty. 
Gen.,  440.) 

The  Attorney  General  declines  to  give  an 
opinion  to  the  head  of  a  department  upon  a 
question  where  no  case  involving  that  question 
is  now  pending  before  that  department.  (29 
Op.  Atty.  Gen.,  46;  29  Op.  Atty.  Gen.,  99.) 

An  opinion  will  not  be  given  by  the  Attorney 
General  where  it  does  not  appear  that  some 
question  exists  calling  for  the  action  of  the  de- 
partment requesting  it.  (20  Op.  Atty.  Gen., 
383.) 


The  Attorney  General  is  not  permitted  by 
statute  to  respond  to  a  request  for  an  opinion 
by  the  head  of  a  department  which  does  not 
show  that  a  case  has  presently  arisen  in  the  ad- 
ministration of  the  department.  (21  Op.  Atty. 
Gen.,  506.) 

The  Attorney  General  will  not  give  an  opin- 
ion upon  an  important  legal  question  when  it 
is  not  practically  presented  by  an  existing  case 
before  a  department.  (21  Op.  Atty.  Gen.,  506, 
citing  9  Op.  Atty.  Gen.,  421;  10  Op.  Atty.  Gen., 
50;  13  Op.  Atty.  Gen.,  531;  19  Op.  Atty.  Gen., 
3.32.) 

From  the  foundation  of  the  Government  it 
has  been  held  that  the  Attorney  General  is 
neither  required  nor  authorized  to  give  an 
opinion  upon  the  request  of  the  head  of  a  de- 
partment except  in  cases  actually  pending  for 
decision  bv  him  in  such  department.  (20 
Op.  Atty.  Gen.,  536,  citing  19  Op.  Atty.  Gen., 
7;  19  Op.  Atty.  Gen.,  331.) 

The  Attorney  General  is  not  authorized  by 
statute  or  precedent  to  respond  by  an  official 
opinion  as  to  a  question  of  law  not  shown  to  be 
pending  and  of  present  executive  consequence. 
(20Op.Atty.Gen.,50.) 

An  opinion  will  not  be  given  by  the  Attorney 
General  where  it  does  not  appear  that  some 
question  exists  calling  for  the  action  of  the  de- 
partment requesting  it.  (20  Op.  Atty.  Gen., 
383;  19  Op.  Atty.  Gen.,  342;  19  Op.  Atty.  Gen., 
439.) 

The  cases  in  which  the  Attorney  General  is 
authorized  to  give  ooiniona  to  the  heads  of 
executive  departments  are  such  as  are  actually 
pending  in  such  departments  and  involve  the 
legal  questions  submitted.  A  convicted  de- 
serter from  tlie  Army,  undergoing  sentence, 
must  become  the  recipient  of  executive  clem- 
ency and  must  make  application  for  reenlist- 
ment,  before  the  question  of  the  effect  of  the 
President's  pardon  upon  his  right  to  reenlist 
can  arise.     (21  Op.  Atty.  Gen.,  568.) 

The  question  whether  a  Chinaman  resident 
of  the  United  States  could  lawfully  return  if 
he  should  revisit  his  n?tive  country,  is  not  a 
question  arising  in  the  administration  of  the 
Treasury  Department,  and  can  not  arise  until 
this  Chinaman's  return  to  this  country,  if  he 
shall  decide  to  depart.  Therefore  the  Attorriey 
General  could  not  properly  give  the  opinion 
requested.     (20  Op.  Atty.  Gen.,  667.) 

WTiether  a  certain  American  steamer,  if  re- 
built in  Canada,  can  be  reregistered  on  her 
return  as  a  vessel  built  in  the  United  States, 
is  not  a  question  for  the  present  action  of  the 
Secretary  of  the  Treasury,  and  the  Attorney 
General  can  not  properly  give  an  opinion 
thereon.  (20  Op.  Atty.  Gen.,  723;  following  20 
Op.  Atty.  Gen.,  667.) 

When  the  solution  of  the  question  is  not  nec- 
essary to  the  discharge  of  any  duty  properly 
belonging  to  the  department,  it  is  not  the  duty 
of  the  Attorney  General  to  give  an  opinion 
thereon,  and  such  opinion  would  consequently 
be  extra-official  and  unauthorized.  (10  Op. 
Atty.  Gen.,  220;  19  Op.  Atty.  Gen.,  7;  20  Op. 
Atty.  Gen.,  724;  see  also,  1  Op.  Atty.  Gen., 
611;  1  Op.  Atty.  Gen.,  575;  2  Op.  Atty.  Gen., 
311;  2  Op.  Atty.  Gen.,  513;  3  Op.  Atty.  Gen., 
368;  6  Op.  Atty.  Gen.,  325.) 


301 


Sec.  366. 


Pt.  2.  REVISED  STATUTES. 


Justice  Department. 


Will  not  review  decision  of  a  depart- 
ment.— The  Attorney  General  does  not  possess 
tho  power  to  revise  the  decisions  of  an  execu- 
tive dej)artment,  delil)orately  made,  and  en- 
tirely satisfactory  to  the  Secretary  thereof. 
(28  Op.  Atty.  Gen.,  596;  3  Op.  Atty.  Gen.,  39.) 

The  Attorney  General  can  not  pro7)erly  ex- 

firess  an  official  opinion  upon  a  question  which 
las  been  decided  I>y  a  department  and  is  pre- 
sented merely  because  of  tne  request  of  counsel 
for  parties  interested.     (28  Op.  Atty.  Gen.,  596.) 

Where  a  question  appears  to  have  been  de- 
cided and  definitively  disposed  of  by  a  de- 
partment, after  very  full  consideration,  upon 
grounds  then  and  still  believed  by  it  to  be 
indisputable,  and  to  be  referred  to  the  Attorney 
General  solely  in  compliance  with  request  of 
the  claimant,  the  Attorney  General  can  not 
undertake  to  give  an  official  opinion  thereon 
without  assumiuo;  that  his  office  possesses  a 
revisory  jurisdiction  not  conferred  upon  it  by 
law.  (3  Op.  Atty.  Gen.,  39;  20  Op.  Atty.  Gen., 
440;  file  11130-2:0.  Mar.  26,  1910.) 

An  appeal  does  not  lie  to  the  Attorney  Gen- 
eral from  another  department  liy  any  party 
assuming  to  l^e  aggrieved  by  its  action  and  seek- 
ing to  have  it  reviewed.  (6  Op.  Atty.  Gen., 
326,  3.34.) 

The  Attorney  General  is  not  an  appellate 
tribunal  for  the  reexamination  of  decisions  of 
the  executive  departments  on  matters  of  fact. 
In  rendering  an  opinion  he  must  accept  the 
facts  given  him  by  the  head  of  the  department 
calling  for  his  opinion.  To  act  otherwise  would 
involve  a  usurpation  of  power.  (3  Op.  Atty. 
Gen.,  1.)  The  Attorney  General  is  ol)liged  to 
take  the  facts  of  a  ca-se  as  they  are  stated  to 
him  hy  the  head  of  the  department  requesting 
his  opinion,  and  to  predicate  his  opinion  there- 
on.    (3  Op.  Atty.  Gen.,  309.) 

It  is  not  within  the  authority  of  the  Attorney 
General  to  reverse  a  decision  of  the  Civil  Service 
Commis.sion  or  to  require  it  to  issue  a  certificate 
of  reinstatement;  as  the  Civil  Ser\ice  Commis- 
sion is  vested  with  authority  in  the  matter  of 
certification,  and  when  it  has  exercised  that 
authority  it  is  not  apparent  that  any  question 
in  the  premises  remains  upon  which  the  statute 
permits  the  head  of  a  department  to  reqiure  the 
opinion  of  the  Attorney  General.  (20  Op. 
Atty.  Gen.,  270.) 

No  statute  exists  which  authorizes  the  head 
of  a  department,  or  the  Attorney  General  at  his 
suggestion,  to  reverse  or  review  the  decision  of 
the  Civil  Service  Commission  that  a  person  is 
not  entitled  to  reinstatement.  Accordingly 
the  Attorney  General  declines  to  render  an 
opinion,  upon  request  of  the  head  of  a  depart- 
ment, as  to  whether  or  not  the  commission 
interpreted  the  law  correctly.  (20  Op.  Atty. 
Gen.,  158.) 

The  Attorney  General  is  not  permitted  to 
give  an  opinion  where  he  is  asked  to  review 
and  express  his  conclusions  upon  the  correct- 
ness of  the  interpretation  and  application  of  the 
law  previously  made  by  the  head  of  a  depart- 
ment and  not  upon  a  question  pending  and 
undetermined.     (20  Op.  Atty.  Gen.,  440.) 

The  Attorney  General  will  not  render  an 
opinion  where  it  appears  that  the  department 
has  reached  conclusions  thereupon,  and  that  an 
opinion  is  desired  as  to  the  correctness  of  its 


interpretation  and  application  of  the  law.  (28 
Op.  Atty.  Gen.,  590.) 

A  matter  which  has  ])een  considered  and  de- 
(ided  is  not  now  a  "question"  upon  which  the 
head  of  the  department  may  require  an  opinion 
of  the  Attorney  General.  (28  Op.  Atty.  Gen., 
596;  20  Op.  Atty.  Gen.,  441.  442.) 

The  Attorney  General  will  not,  at  the  request 
of  a  head  of  a  department,  review  the  decision 
of  the  head  of  another  dei)artment,  which  latter 
department  had  complete  and  lawful  jurisdic- 
ti(m.     (II  Oj).  Atty.  Gen..  189.) 

Will  not  answer  question  submitted  by 
head  of  a  department  merely  for  informa- 
tion of  subordinate. — The  Attorney  General 
is  not  authorized  or  required  to  give  an  offic  ial 
opinion  to  the  head  of  a  department,  except 
where  it  is  needed  for  the  latter's  guidance  in 
some  matter  calling  for  action  or  decision  on 
his  part.  Accordingly  he  can  not  render  an 
opinion  to  the  Secretary  of  the  Interior  upon  a 
question  wliich  arose  in  the  administration  of 
the  office  of  Commissioner  of  Patents,  and  re- 
lates to  his  duties  under  the  law;  as  to  do  eo 
would  be  to  overstep  the  boundaries  prescribed 
for  him  by  a  long  line  of  decisions  and  uniform 
practice,  and  to  commit  himself  upon  a  ques- 
tion which  might  properly  be  submitted  to  him 
thereafter  by  the  Secretary  of  the  Interior. 
(21  Op.  Atty.  Gen.,  174;  20  Op.  Atty.  Gen., 
609,  723.) 

The  Attorney  General's  opinion  can  not  be 
asked  upon  questions  relating  only  to  the  duties 
of  the  Commission  to  the  Five  Civilized  Tribes; 
advice  which  can  not  be  asked  directly  by  the 
Commissioners  the  Attorney  General  is  not 
authorized  to  furnish  even  when  they  put  the 
question  through  the  head  of  a  department. 
His  opinion  should  be  needed  for  the  guidance 
of  the  head  of  a  department,  and  should  relate 
to  some  matter  calling  for  the  latter's  action  or 
decision.     (20  Op.  Atty.  Gen.,  724.) 

The  Attorney  General  is  not  the  official  legal 
adviser  of  subordinate  officers  in  tlie  depart- 
ments. It  is  true  that  he  often  gives  the  heads 
of  departments  ad\'ice  and  opinions  upon  ques- 
tions arising  in  the  bureaus  of  their  respective 
departments,  but  such  advice  and  opimons  are 
intended  to  aid  only  the  judgment  of  the  Sec- 
retary himself  in  deciding  such  questions.  To 
enlarge  the  rule  beyond  this  extent  would  not 
only  he  unwarrantecl  by  law,  but  would  convert 
the  Attorney  General  into  a  sort  of  general 
appellate  court,  where  dissatisfied  claimants 
might  seek  relief  from  adverse  decisions  and 
subordinate  executive  officers  find  a  way  of 
escaping  from  official  labor  and  responsibility. 
(11  Op.  Atty.  Gen.,  4.)  As  to  whether  an  excep- 
tion exists  in  the  special  cases  of  questions  aris- 
ing in  the  War  and  Naw  Departments,  see  18 
Op.  Atty.  Gen.,  59,  noteci  under  sec.  357,  H.  S.) 

The  Attorney  General  is  not  required  to  give 
an  opinion  except  on  such  questions  as  are 
necessary  to  guide  the  heads  of  departments  in 
their  actions.  Accordingly  he  has  no  power  to 
give  an  official  opinion  ui)on  questions  referred 
to  him  by  the  Secretary  of  the  Treasurj--  for  the 
guidance  not  of  the  Secretary' Vmt  of  an  auditor. 
(20  Op.  Atty.  Gen.,  251.) 

The  questions  which  the  Attorney  General  is 
required  to  answer  are  only  those  the  decision 
of  which  is  needed  to  govern  the  action  of  the 


302 


Justice  Depaxtment. 


Pt.  2.  REVISED  STATUTES. 


Sec.  356. 


head  of  a  department  in  cases  actually  arising 
therein,  and  the  Attorney  General  must  decline 
to  answer  a  question  asked  by  the  head  of  a 
department  which  pertains  only  to  the  powers 
and  duties  of  a  commission,  although  such  a 
commission  is  properly  to  be  regarded  as  within 
the  department.     (19  Op.  Atty.  Gen.,  673.) 

The  Attorney  General  has  no  power  to  give 
an  official  opinion  on  questions  referred  by  the 
Secretary  of  the  Treasury  at  the  request  of  an 
auditor  for  the  guidance  of  the  latter,  in  a  case 
where,  under  the  law,  no  appeal  could  be  taken 
from  the  auditor's  action  to  the  head  of  the 
Treasury  Department.  The  question  there- 
fore was  not  pending  before  the  Secretary  of  the 
Treasury  and  evidently  could  not  reach  him. 
ill  Op.  Atty.  Gen.,  4.) 

The  Attorney  General  has  no  authority  to 
give  an  opinion  to  the  Secretary  of  the  Treasury 
upon  questions  relating  to  the  past  action  of  the 
Board  of  Supervising  Inspectors,  which  is  not 
reviewable  by  the  Secretary.  (18  Op.  Attv. 
Gen.,  77.) 

The  Attorney  General  declines  to  express  an 
opinion  upon  a  question  asked  him  by  the  Sec- 
retary of  the  Interior  for  the  reason  that  it  is  not 
predicated  upon  an  actual  case  arising  in  the 
department;  and  also  because  that  department 
has  an  officer  clothed  with  authority  to  deter- 
mine questions  of  that  nature  in  the  first  in- 
stance, coming  up  on  appeal  from  the  Pension 
Bureau.     (24  Op.  Atty.  Gen.,  556.) 

Wliere  the  question  is  one  within  the  exclu- 
sive jurisdiction  of  the  Comptroller  of  the  Treas- 
ury, the  Attorney  General  will  not  render  an 
opinion  upon  the  request  of  the  Secretary  of  the 
Treasury.  If,  however,  the  matter  is  one  upon 
which  ti.e  Secretary's  action  will  be  necessary, 
an  opinion  will  be  rendered  on  it.  (20  Op. 
Atty.  Gen.,  279.)  [In  23  Op.  Atty.  Gen.,  30, 
the  Attorney  General  rendered  an  opinion  with 
reference  to  the  question  of  pay  of  certain  naval 
officers  on  promotion,  which  was  pending  before 
the  Comptroller  of  the  Treasury;  in  this  case 
the  Secretary  of  the  Treasury  requested  the 
opinion  of  the  Attorney  General  upon  certain 
questions  proposed  by  the  Comptroller  of  the 
Treasury  and  transmitted  with  the  Secretary's 
note.  The  opinion  was  for  the  guidance  of  the 
Comptroller.  See  also  below,  "Jurisdiction,  At- 
torney General  and  Comptroller  of  the  Treas- 
ury."] 

With  reference  to  the  question  whether  the 
accounting  officers  of  the  Treasury  may  legally 
allow  claims  for  transportation  upon  requests 
fraudulently  issued  by  an  officer  of  the  Army, 
which  question  was  transmitted  to  the  Attorney 
General  by  indorsement  of  the  Secretary  of  the 
Treasury  on  a  letter  of  the  Comptroller  of  the 
Treasmy,  the  Attorney  General  rendered  an 
opinion  to  the  Secretary.  (23  Op.  Atty.  Gen., 
161.) 

Upon  request  of  the  Secretary  of  the  Treasury, 
the  Attorney  General  rendered  an  opinion  upon 
questions  proposed  by  the  Comptroller  of  the 
Currency.  (27  Op.  Atty.  Gen.,  324.)  [In  27 
Op.  Atty.  Gen.,  38,  the  Attorney  General 
expressed  doubt  as  to  whether  he  was  required 
to  render  an  opinion  to  the  Secretary  of  the 
Treasury  upon  questions  referred  to  him  at  the 
instance  of  the  Comptroller  of  the  Currency, 
requiring  action  by  the  latter,  although  the 


comptroller  could  perform  the  duty  only  under 
the  general  direction  of  the  Secretary.  How- 
ever, as  a  matter  of  courtesy  and  public  policy, 
the  doubt  was  resolved  in  favor  of  the  propriety 
of  rendering  the  opinion  requested.] 

Wni  not  answer  question  submitted  by 
head  of  department  merely  for  informa- 
tion of  Congress. — The  Attorney  General  will 
not  render  an  opinion  upon  a  claim  which  has 
aheady  been  administered  by  the  head  of  a 
department,  who  submits  the  question  to  hhn 
at  the  request  of  a  committee  of  Congress.  (15 
Op.  Atty.  Gen.,  138.) 

Congress  has  not  thought  proper  to  empower 
its  committees  to  require  the  Attorney  General's 
opinion  directly,  and  he  will  not  render  an 
opinion  upon  the  request  of  the  head  of  a  de- 
partment at  the  suggestion  of  a  congressional 
committee  where  it  is  not  required  for  the 
guidance  of  the  head  of  the  department.  (15 
Op.  Atty.  Gen.,  138.) 

Where  a  call  for  an  opinion  from  the  Attorney 
General  was  made  by  the  head  of  a  department 
in  comphance  with  a  resolution  of  the  House 
of  Representatives,  for  the  information  of  the 
latter,  without  reference  to  any  question  of 
law  arising  in  the  administration  of  such  de- 
partment, the  Attorney  General  is  without 
authority  to  give  an  official  opinion  in  such 
case.  (18  Op.  Atty.  Gen.,  107.)  (In  this  case 
the  Attorney  General's  opinion  had  previously 
been  directly  requested  by  resolution  of  the 
House  of  Representatives  and  declined.  (See 
18  Op.  Atty.  Gen.,  87.) 

The  Attorney  General  is  not  authorized  to 
give  his  official  opinion  to  the  head  of  a  de- 
partment upon  a  question  not  involving  de- 
partmental administration  but  referred  to  him 
at  the  request  of  a  Senator  in  order  that  such 
opinion  might  be  laid  before  a  committee  of  the 
Senate.     (17  Op.  Atty.  Gen.,  358.) 

The  Attorney  General  is  not  authorized  to 
render  an  opinion  upon  the  request  of  a  head 
of  department,  upon  a  question  not  demanding 
any  present  official  action  by  the  latter  but 
intended  for  the  information  of  a  congressional 
committee.     (22  Op.  Atty.  Gen.,  85.) 

Will  not  answer  question  submitted  by 
head  of  department  merely  for  informa- 
tion of  contractors. — It  is  not  the  duty  of  the 
Attorney  General,  nor  has  he  a  right,  to  give 
an  official  opinion  with  a  view  to  the  guidance 
of  persons  who  may  propose  to  enter  into  con- 
tract relations  with  the  United  States.  It  is 
not  permissible  for  the  Attorney  General  to 
give  an  opinion  except  in  a  case  actually  arising 
in  the  administration  of  one  of  the  departments. 
(20  Op.  Atty.  Gen.,  465.) 

The  function  of  the  Attorney  General  is  to 
advise  the  several  heads  of  the  other  executive 
departments  upon  the  questions  of  law  which, 
in  the  administration  of  their  respective  de- 
partments, they  are  required  to  decide.  But 
the  head  of  a  department  is  not  required  by 
law  to  become  the  legal  adviser  of  a  party  pro- 
posing to  enter  into  a  contract  with  the  Govern- 
ment. Where  the  Attorney  General's  opinion 
is  requested  by  the  head  of  a  department  to 
enable  the  latter  to  advise  contractors,  the  At- 
torney General  is  not  authorized  to  give  an 
opinion.     (20  Op.  Atty.  Gen.,  463.) 


303 


Sec.  356. 


Pt.  2.  REVISED  STATUTES. 


Justice  Department. 


It  is  clear  that  a  question  propounded  !>>•  a 
Government  contractor  is  one  which  the  Secre- 
tary of  the  Treasury  is  not  called  upon  to  answer; 
hence  it  is  not,  witliin  the  language  of  this  sec- 
tion, "a  question  of  law  arising  in  the  adminis- 
tration of  his  department."  (20  Op.  Atty. 
Gen.,  500,  502.) 

The  Attorney  General  is  not  authorized  to 
render  an  official  opinion  at  the  request  of  the 
head  of  a  department  where  the  information  is 
desired  for  tne  guidance  of  certain  prospective 
bidders,  as  the  question  is  not  one  which  such 
head  of  department  is  called  upon  to  decide  in 
the  administration  of  his  department.  (28 
Op.  Atty.  Gen.,  534.) 

Will  not  answer  question  submitted  by- 
head  of  department  in  ■which  United 
States  has  no  interest. — The  Attorney  Gen- 
eral will  not  render  an  opinion  upon  a  question 
where  it  appears  upon  a  perusal  of  the  papers 
that  the  L'nited  States  have  no  interest  in  the 
incjuiry,  and  consequently  that  any  opinion 
on  his  part  would  be  not  only  gratuitous  but 
unauthorized.     (2  Op.  Atty.  Gen.,  311.) 

It  is  not  the  duty  of  the  Attorney  General  to 
give  official  opinions  except  in  cases  in  which 
the  Government  is  interested.  Nor  will  the 
Attorney  General  render  an  unofficial  opinion 
in  such  a  case,  even  as  an  individual,  because 
in  the  relation  he  stands  to  the  Government  an 
opinion  from  him  on  the  subject  might  be 
looked  upon  as  an  official  one,  and  thus  con- 
nect the  Government  with  an  individual  con- 
troversy in  which  it  has  no  concern  and  with 
which  it  ought  not  to  interfere.  (2  Op.  Atty. 
Gen.,  531.) 

The  question  whether  a  bond  taken  by  the 
collector  of  a  port  from  one  of  his  subordinates, 
for  his  own  protection,  is  valid  in  the  absence 
of  a  statute  authorizing  it,  not  appearing  to  be  a 
question  in  which  the  United  States  are  con- 
cerned, or  one  arising  in  the  administration  of 
a  department,  the  Attorney  General  decHnes 
to  give  an  official  opinion  thereon.  (19  Op. 
Atty.  Gen.,  556.) 

Questions  of  law,  of  concern  to  private 
parties,  and  in  which  the  Government  has  no 
interest,  are  to  be  settled  by  courts  and  juries. 
The  individuals  may,  if  they  choose,  consult 
counsel  on  such  questions  for  their  own  guid- 
ance; but  the  law  gives  them  no  authority  to 
bring  such  questions  to  the  head  of  a  depart- 
ment, nor  will  the  Attorney  General  render  his 
opinion  thereon  upon  request  of  the  latter.  (1 
Op.  Atty.  Gen.,  575.) 

The  Attorney  General  is  not  to  give  advice 
to  heads  of  departments  on  matters  which  do 
not  concern  their  departments,  and  in  which 
the  United  States  have  no  interest;  nor  is  he 
authorized  to  give  official  opinions  in  any  case 
not  falling  within  the  scope  of  his  duties,  so 
as  to  connect  the  Ciovemment  with  individual 
controversies  in  which  it  has  no  concern  and 
with  which  it  ought  not  to  interfere;  nor  ought 
he  to  advise  individuals  in  regard  to  any  ques- 
tion of  legal  right  depending  between  them  and 
the  Government.     (6  Op.  Atty.  Gen.,  326,  334.) 

It  is  not  the  duty  of  the  Attorney  General  to 
give  an  opinion  on  a  question  with  which  the 
Government  has  no  present  concern.  (9  Op. 
Atty.  Gen.,  355;  19  Op.  Atty.  Gen.,  414.)  He 
has  no  authority  to  give  any  opinion  or  advice 


on  questions  of  law  except  for  the  assistance  of 
the  oflScer  calling  for  his  opinion.  (3  Op.  Atty. 
Gen.,  309.) 

The  Attorney  General  is  not  authorized  to 
answer  questions  of  law  submitted  to  him  by 
the  Secretary  of  the  Interior  only  at  the  request 
of  the  ("herokoe  Nation  and  which  do  not  con- 
cern the  "administration"  of  the  Interior 
Department.     (IG  Op.  Atty.  Gen.,  404.) 

The  question  whether,  if  a  certain  American 
steamer  shall  be  rebuilt  in  Canada,  she  can  be 
reregistered  on  her  return  as  a  vessel  built  in 
the  United  States  is  not  for  the  present  action 
of  the  Secretary  of  the  Treasury,  but  that  the 
owners  of  the  vessel  may  know  what  his  future 
action  would  be  in  case  they  decided  to  have 
the  repairs  done  in  Canada.  It  would  not  be 
proi)er  for  the  Attorney  General  to  give  the 
opinion  requested.  (20  Op.  Atty.  Gen.,  723; 
following  20  Op.  Atty.  Gen.,  667,  as  to  whether 
a  Chinaman  resident  of  the  United  States  could 
lawfully  return  if  he  should  revisit  his  native 
country.) 

Where  a  question  presented  to  the  Attorney 
General  by  the  Secretary  of  War  is  one  of 
strictly  private  concern  to  certain  officers  of 
the  Army  and  in  no  sense  of  pubUc  interest,  it 
is  not  a  question  arising  in  the  administration 
of  the  War  Department  on  which  the  Attorney 
General  will  render  an  opinion.  The  obvious 
course  for  such  officers  to  pursue  is  that  which 
is  open  to  every  person  inclined  to  pursue  a 
course  as  to  the  legal  consequences  of  which  he 
is  in  ignorance  or  doubt.  He  should  seek  the 
advice  of  private  counsel  learned  in  the  law 
and  obtain  their  opinion,  for  which  if  given 
without  due  care  such  counsel  can  be  held  to 
a  personal  accountability.  (21  Op.  Atty.  Gen., 
510.) 

The  question  whether  a  retired  officer  of  the 
Army  can  accept  another  public  office  is  not  a 
subject  with  which  the  United  States  can  be 
concerned  until  some  action  has  been  taken  by 
such  officer  contrary  to  law.  Manifestly,  the 
solution  of  that  question  by  any  retired  officer 
of  the  Army  and  the  course  of  conduct  which  he 
may  adopt  in  pursuance  of  that  solution,  is  a 
matter  of  his  private  concern  only.  The  At- 
torney General  can  not,  therefore,  render  an 
opinion  upon  the  questicm  at  the  request  of  the 
Secretary  of  War,  as  the  Attorney  General  is 
not  permitted  to  give  an  opinion  as  to  the  con- 
struction or  interpretation  of  a  statute  except 
in  an  actual  case  which  has  arisen  before  one 
of  the  executive  departments  calling  for  its 
action  in  the  regular  course  of  its  affairs.  (21 
Op.  Atty.  Gen.,  510;  but  see  29  Op.  Atty.  Gen., 
397,  where  the  Attorney  General  rendered  an 
opinion  to  the  Secretary  of  the  Navy  upon  a 
somewhat  analogous  question,  viz,  whether  a 
retired  officer  of  the  Marine  Corps  could  accept 
compensation  for  appearing  as  counsel  before 
any  department,  court-martial,  etc.;  and  in  29 
Op.  Atty.  Gen.,  503,  the  Attorney  General  ren- 
dered an  opinion  concerning  the  legality  of 
appointing  a  retired  officer  of  the  Navy  as  a 
clerk  in  the  civil  service,  but  in  this  case  the 
appointment  had  already  been  made,  and  the 
opinion  was  requested  by  the  President.) 

Will  not  answer  question  unless  it  arises 
in  the  department  which  requests  opin- 
ion,— The  Attorney  General  is  not  authorized 


304 


Justice  Department. 


Ft.  2.  REVISED  STATUTES. 


Sec.  356. 


by  statute  or  precedent  to  respond  by  an  official 
opinioD  as  to  a  question  of  law  not  arising  in  the 
department  from  which  the  inquiry  is  sent. 
(20  0p.  Atty.  Gen.,50.) 

"WTiere  there  is  no  way  of  enforcing  a  statute 
except  tlirough  the  courts,  the  question  is  one 
arising  in  the  Department  of  Justice,  and  the 
official  opinion  of  the  Attorney  General  can  not 
be  required  thereon  by  the  head  of  another 
department.     (21  Op.  Atty.  Gen.,  6.) 

The  question  whether  or  not  to  commence  a 
civil  action  or  a  criminal  prosecution  is  one 
which  must  ordinarily  be  decided  by  some 
officer  of  the  Department  of  Justice,  and  is  not, 
therefore,  a  question  upon  which  the  opinion 
of  the  Attorney  General  can  be  requested  by 
the  head  of  another  department.  If  any  other 
department  of  the  Government  is  informed  of 
facts  which  seem  to  require  such  action  to  be 
taken,  its  duty  is  to  communicate  them,  to- 
gether with  any  suggestion  which  it  desires  to 
make,  to  the  Department  of  Justice,  whose 
duty  it  is  to  decide  whether  proceedings  shall 
be  instituted,  and  if  so,  against  whom.  (21 
Op.  Atty.  Gen.,  509.) 

The  Attorney  General  will  not,  at  the  request 
of  the  head  of  a  department,  re\dew  the  deci- 
sion of  the  head  of  another  department,  which 
latter  department  had  complete  and  lawful 
jurisdiction.  (11  Op.  Atty.  Gen.,  189;  Op.  Attv. 
Gen.,  Nov.  7,  1917,  file  26510-1022:11,  C.  M.  O. 
37-1918,  p.  21). 

The  power  of  the  Attorney  General  to  give  an 
opinion  on  request  of  the  head  of  a  department 
is  confined  to  questions  arising  in  the  adminis- 
tration of  the  department  calling  for  the  opinion . 
T^Tiere  a  question  had  been  finally  disposed  of 
by  the  War  Department,  but  the  accounting 
officers  had  gone  behind  the  Secretary's  action 
and  decided  the  case  against  the  claimant,  it  is 
quite  evident  that  the  questions  involved  have 
no  relation  to  a  matter  before  the  War  Depart- 
ment for  action.     (20  Op.  Atty.  Gen.,  588.) 

The  question  whether  a  former  employee  can 
be  reinstated  in  a  department  is  not  a  question 
pending  in  that  department,  but  in  the  Civil 
Service  Commission,  which  is  vested  with 
authority  in  the  matter  of  certification.  Ac- 
cordingly, when  the  commission  has  exercised 
that  authority,  no  question  remains  with  the 
department  upon  which  the  statute  permits  the 
Attorney  General  to  render  an  opinion  upon 
request  of  the  Secretary.  (20  Op.  Atty.  Gen., 
270;  20  Op.  Atty.  Gen.,  158.) 

The  eligibility  of  a  person  for  appointment 
in  a  department  under  the  civil  serAdce  is  not 
a  question  arising  in  the  department,  but  is  one 
uiider  the  jurisdiction  of  the  Civil  Service  Com- 
mission. The  Attorney  General  can  not,  there- 
fore, render  an  opinion  upon  request  of  the 
head  of  the  department.  (28  Op.  Atty.  Gen., 
393.)  The  law  and  uniform  practice  of  the 
Attorney  General  precludes  him  from  respond- 
ing.    (28  Op.  Atty.  Gen.,  431.) 

^\^lere  a  law  provides  for  indemnity  to  officers 
and  enlisted  men  of  the  Army,  and  vests  the 
accounting  officers  of  the  Treasury  with  juris- 
diction to  determine  whether  the  loss  occmred 
under  the  circumstances  set  forth  in  the  act, 
the  Attorney  General  will  not  render  an  opinion 


to  the  Secretary  of  War  upon  the  question,  as  it 
does  not  appertain  to  the  administration  of  the 
War  Department.     (19  Op.  Atty.  Gen.,  693.) 

Where  an  auditor  directs  a  suspension  against 
an  officer  of  the  Army,  the  same  being  the 
amount  of  an  alleged  excessive  allowance  made 
to  liim  by  the  Deputy  Paymaster  General,  such 
action  of  the  auditor  does  not  relate  in  any  way 
to  a  matter  which  requires  the  action  of  the 
Secretary  of  War  as  falling  within  the  scope  of 
his  official  duties.  The  Attorney  General  will 
express  no  opinion  where  the  matter  is  not  one 
requiring  the  official  action  of  the  head  of  the 
department.     (20  Op.  Atty.  Gen.,  420.) 

The  Attorney  General  is  not  authorized  to 
give  an  opinion  to  the  Secretary  of  the  Treasury 
as  to  the  proper  construction  of  a  pension  appro- 
priation act,  inasmuch  as  it  appears  that  the 
Treasury  Department  is  bound  by  the  rulings 
of  the  Department  of  the  Interior  in  construing 
that  law,  and  therefore  no  question  is  pending 
in  the  Treasury  Department  arising  in  the 
administration  of  that  department.  (20  Op. 
Atty.  Gen.,  178.) 

The  propriety  of  keeping  every  branch  of  the 
executive  Government  within  its  legal  sphere 
is  clear.  The  confusion  which  would  unavoid- 
ably ai-ise  if  one  branch  was  permitted  to  usurp 
the  functions  of  another  would  be  disastrous  to 
the  proper  work  of  the  whole.  When,  there- 
fore, a  "difference  of  opinion"  arises  between 
several  executive  departments  as  to  the  con- 
struction of  the  law,  the  primary  question  is  as 
to  which  is  vested  with  the  determination  and 
responsibility  of  the  question.  That  only  one 
can  have  jurisdiction  over  the  subject  matter 
is  plain.     (20  Op.  Atty.  Gen.,  178,  180.) 

The  Attorney  General,  upon  request  of  the 
Secretary  of  the  Na\'y,  will  render  an  opinion 
as  to  the  validity  of  a  Navy  regulation,  and 
whether  it  is  binding  upon  the  accounting 
officers,  in  a  case  where  the  Comptroller  of  the 
Treasiuy  had  previously  held  the  regulation 
to  be  void,  and  declined  to  concm-  in  a  refer- 
ence of  the  question  to  the  Attorney  General. 
(30  Op.  Atty.  Gen.,  376,  171  S.andA.  Memo., 
3611,  reversing21Comp.Dec.,554,  357,  245.) 

Where  a  claim  pending  in  the  Department  of 
State  was  referred  by  the  Secretary  of  State  to 
the  Secretary  of  the  Treasury  for  the  latter's 
opinion,  this  did  not  make  the  question  one 
arising  in  the  Treasury  Department  and  author- 
ize the  Secretary  of  the  Treasmy  to  require  an 
opinion  of  the  Attorney  General  on  it.  The 
whole  subject  belonged  and  still  belongs  to  the 
State  Department.  The  Attorney  General 
can  not  give  an  opinion  upon  a  matter  referred 
to  him  by  the  head  of  a  department  who  is  not 
authorized  to  act  on  such  matter.  (20  Op. 
Atty.  Gen.,  249.) 

The  Attorney  General  can  not  render  an 
opinion  to  the  Secretary  of  the  Treasury  upon 
a  question  concerning  the  Board  of  Health  of 
the  District  of  Columbia,  such  question  not 
arising  in  the  administration  of  any  of  the  Ex- 
ecutive Departments.    (13  Op.  Atty.  Gen.,  535.) 

The  Attorney  General  decHnes  to  render  an 
opinion  upon  a  question  not  arising  in  the 
administration  of  the  department  asking  the 
opinion.     (29  Op.  Atty.  Gen.,  226.) 


305 


Sec.  356. 


PL  2.  REVISED  STATUTES. 


Justice  Department. 


The  Attorney  General  will  not  render  an 
o])inion  upon  the  request  of  the  head  of  a 
dopurtmeut  where  it  is  intended  for  the  in- 
fornuition  of  a  commission  appointed  to  revise 
the  hvw3  of  the  United  States.  The  commis- 
sion was  invested  by  Congress  with  discretion 
to  determine  what  existing  laws  are  of  a  per- 
manent and  general  nature.  \\'here  the  chair- 
man of  the  commission  asked  the  head  of  a 
dei)artmeut  whether  a  portion  of  the  revision 
correctly  embodied  the  provisions  of  existing 
law  upon  that  subject,  that  did  not  make  the 
cjuestion  one  arising  in  the  department  requir- 
ing a  determination  thereof.  The  question  was 
one  essentially  arising  in  the  commission,  and 
not  therefore  one  upon  which  it  was  the  duty 
or  province  of  the  head  of  the  department  to 
act.     (25  Op.  Atty.  Gen.,  584.) 

[The  Attorney  General  rendered  an  opinion 
to  the  Secretary  of  the  Interior  upon  a  ques- 
tion not  pending  before  that  department,  viz, 
as  to  the  sufficiency  of  the  return  of  a  public 
contract  made  by  the  Secretary  of  the  Navy; 
because,  while  the  question  was  not  pending 
before  the  Interior  Department,  it  was  proper 
that  the  Secretary  of  the  Interior  should  be 
advised  whether  the  case  submitted  presented 
a  violation  of  the  statute,  since  it  is  his  duty  to 
call  apparent  violations  of  the  statute  to  the 
attention  of  the  Department  of  Justice.  (29 
Op.  Atty.  Gen.,  293.)] 

Will  not  answer  a  judicial  question. — 
Where  questions  propounded  are  judicial  in 
character  and  must  be  decided  by  the  courts, 
if  decided  at  all,  an  expression  of  an  opinion 
on  them  by  the  Attorney  General  would  have 
no  more  weight  than  the  opinion  of  any  unoffi- 
cial person.  The  Attorney  General  must 
confine  his  opinions  to  questions  strictly  ap- 
pertaining to  executive  administration.  (20 
Op.  Atty.  Gen.,  383.) 

The  Department  of  Justice  has  always  been 
reluctant  to  pass  upon  questions  which  properly 
belong  to  the  judicial  rather  than  to  the  execu- 
tive branch  of  the  Government.  (20  Op. 
Atty.  Gen.,  673;  19  Op.  Atty.  Gen.,  56.) 

The  Attorney  General  declines  to  render  an 
opinion  upon  a  question  judicial  in  character. 
(29  Op.  Atty.  Gen.,  226.) 

The  statutes  in  providing  for  official  opinions 
by  the  Attorney  General  did  not  intend  to 
cover  questions  which  are  substantially  a  re- 
quest for  advice  as  to  whether  or  not  a  prose- 
cution had  better  be  instituted.  The  Attorney 
General's  opinion  on  such  a  question  w-ould 
not  bind  a  court  in  any  way.  It  could  as  well 
be  asked  before  instituting  every  civil  suit  or 
prosecution  for  crime.    (20  Op.  Atty.  Gen.,  673.) 

The  organic  distinctions  between  the  tliree 
great  divisions  of  Government  established 
by  the  Constitution  must  be  respected  or 
collisions  and  discords  inimical  to  good  gov- 
ernment will  inevitably  take  place.  The 
executive  department  of  the  Government 
is  not  warranted  in  assuming  to  determine 
a  controversy  properly  cognizable  by  the 
judicial  department  of  the  Government.  For 
the  Attorney  General  to  render  an  opinion 
might  be  regarded  as  an  attempt  of  the  execu- 
tive branch  of  the  Government  to  forestall 
judicial  proceedings.     (19  Op.  Atty.  Gen.,  56.) 


[This  case  involved  the  j)ower  of  the  State  of 
California  to  divest  certain  rights  claimed  by 
the  Indians.] 

The  Attorney  General  has  always  exliibited 
great  and  proper  reluctance  to  pass  upon  any 
question  whose  answer  might  bring  the  Depart- 
ment of  Justice  into  conflict  with  a  judicial 
trilninal.     (20  Op.  Atty.  Gen.,  618.) 

The  Department  of  Justice  will  not  consider 
any  question  committed  to  judicial  review. 
To  do  so  might  l)ring  it  in  conflict  with  a  judi- 
cial tribunal.  (24  Op.  Atty.  Gen.,  59;  23  Op. 
Atty.  Gen.,  221.) 

The  Attorney  General  can  not  g'\e  an 
opinion  upon  a  judicial  question,  such  as 
whether  or  not  the  head  of  a  department  has 
any  remedy  at  law  against  private  parties 
who  have  had  dealings  with  the  Government. 
(21  Op.  Atty.  Gen.,  369.) 

The  Attorney  General  declines  to  give  an 
opinion  where  the  question  presented  is  a 
judicial  one  (whether  an  objection  made  to 
the  naturalization  of  an  alien  should  have 
been  sustained).     (29  Op.  Atty.  Gen.,  99.) 

It  is  not  the  practice  of  the  Department  of 
Justice  to  give  an  opinion  in  a  matter  where 
the  question  involved  is  disputable  and  is  the 
subject  of  a  pending  suit,  as  such  action  would 
be  equivalent  to  expressing  an  opinion  as  to 
whether  the  question  ought  to  be  decided 
in  favor  of  the  Government  and  might  Ijring 
the  department  into  conflict  with  a  judicial 
tribunal.     (23  Op.  Atty.  Gen.,  221.) 

The  question  whether  a  proceeding  under 
any  law  would  or  would  not  be  successful 
is  a  judicial  question,  on  which  it  is  not  neces- 
sary or  proper  for  the  Attorney  General  to  give 
an  official  opinion.     (22  Op.  Atty.  Gen.,  181.) 

It  is  inexpedient  for  the  Attorney  General 
to  render  an  official  opinion  as  to  whether  a 
civil  suit  or  criminal  prosecution,  if  brought 
by  the  Government,  ought  to  be  decided  by  the 
courts  in  its  favor,  such  question  being  essen- 
tially judicial  in  character.  (20  Op.  Atty. 
Gen.,  702.) 

"Whether  or  not  an  express  company  or  its 
agents  in  carrying  unmailable  matter  is  guilty 
of  a  crime  for  which  the  statutes  impose  a 
penalty  is  essentially  judicial  in  character, 
and  one  wliich  must  ultimately  be  decided 
by  the  judicial  department  of  the  Govern- 
ment. The  Attorney  General  will  not  decide 
such  question  further  than  to  say  that  the 
facts  stated  seem  to  make  a  prima  facie  case, 
and  to  render  it  proper  that  the  Postmaster 
General  should  direct  a  prosecution  of  the 
guilty  parties.  Such  prosecution  will  result 
in  a  judicial  construction  of  the  law.  (19  Oj). 
Atty,  Gen.,  670.) 

The  question  of  the  right  of  a  State  to  tax 
lands  in  an  Indian  reservation  is  judicial  and 
not  administrative.  The  Attorney  General 
ought  not  to  express  an  opinion  upon  it.  The 
better  coxirse  would  be  to  make  a  test  case,  with 
a  view  to  the  determination  of  the  Federal 
question  by  the  Supreme  Court  of  the  United 
States.  The  Attorney  General  will  be  glad  to 
cooperate  with  the  officer  requesting  his  opinion 
in  the  proper  measures  to  get  a  judicial  deter- 
mination of  the  important  question  involved. 
(20  Op.  Atty.  Gen.,  277.) 


306 


Justice  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  356. 


Whether  any  giveu  acts  or  practices  consti- 
tute a  crime  is  a  question  for  the  determination 
of  the  courts,  not  of  the  Executive  Departments, 
except  where  some  executive  action  depends 
upon  that  determination.  Such  are  not  ques- 
tions of  law  arising  in  the  administration  of  the 
department  asking  an  opinion.  (20  Op. 
Atty.  Gen.,  210.)  [The  question  in  this  case 
was  whether  or  not  pictures  of  coins  constitute 
a  violation  of  an  act  defining  a  criminal  offense 
and  prescribing  the  penalty  upon  conviction 
thereof.] 

Statutes  of  limitation  apply  to  the  legal  reme- 
dies and  not  to  the  rights  of  the  parties. 
Whether  the  statute  of  limitations  does  or  does 
not  bar  a  claim  on  behalf  of  the  Government  is, 
therefore,  a  judicial  question  to  be  determined 
by  the  courts  and  not  bv  the  Attorney  General. 
C21  Op.  Atty.  Gen.,  557,  564.) 

The  matters  covered  by  certain  questions 
submitted  for  opinion  held  clearly  justiciable 
in  the  appropriate  courts  at  the  suit  of  the  par- 
ties themselves  who  are  interested  in  them. 
They  are  essentially  judicial  in  their  character, 
and  as  each  is  readily  resolvable  into  a  case  at 
law  or  in  equity  it  can  not  be  said  to  be  a  ques- 
tion arising  in  a  course  of  executive  adminis- 
tration.    (19  Op.  Atty.  Gen.,  56.) 

The  jurisdiction  of  consuls  as  courts  is  a 
judicial  question,  subject  to  review  by  regular 
appeal  provided  by  statute,  and  any  opinion 
thereon  would  be  beyond  the  power  conferred 
upon  the  Attorney  General  and  might  be  re- 
garded as  an  invasion  by  the  executive  branch 
of  the  Government  of  another  and  independent 
branch,  so  far  as  judicial  functions  are  exer- 
cised. [Also,  in  this  case  the  question  was 
purely  hypothetical.]  (20  Op.  Atty.  Gen.,  391, 
393.) 

The  Attorney  General  can  not  properly  ex- 
press an  official  opinion  upon  a  question  which 
must  ultimately  be  decided  by  the  courts. 
[Also  in  this  case  the  question  had  already 
been  decided  by  the  department  and  was  pre- 
sented to  the  Attorney  General  merely  because 
of  therequestof  counsel  for  parties  interested.] 
(28  Op.  Atty.  Gen.,  596.) 

The  Attorney  General  can  not  answer  the 
question  whether  a  regulation  if  issued  under 
the  tariff  act  could  be  enforced,  as  the  question 
is  both  hypothetical  and_  judicial j  involving 
speculation  as  if  the  requirement  is  adopted, 
proceedings  in  court  to  enforce  it  may  or  may 
not  be  successful.     (25  Op.  Atty.  Gen.,  93.) 

The  Attorney  General  can  not  properly  pass 
upon  the  question  whether  the  courts  in  this 
country  have  authority  to  execute  letters  roga- 
tory issued  out  of  the  German  Patent  Office,  as 
that  is  a  matter  for  judicial  and  not  for  execu- 
tive determination.  "I  can  not  speak  for  the 
courts.  It  is  for  the  different  courts  of  the 
various  jurisdictions.  Federal  and  State,  to  say 
when  the  motion  comes  before  them  for  deci- 
sion, whether  or  not  they  have  the  necessary 
authority  in  the  premises."  (24  Op.  Atty. 
Gen.,  69.) 

Declines  to  express  an  opinion  as  to  the  lia- 
bility of  the  postmaster  at  Baltimore,  Md.,  for 
a  sum  of  money  paid  by  him  to  a  former  clerk 
in  the  Baltimore  post  office  and  for  which  no 
service  was  performed,  for  the  reason  that  the 
question  is  essentially  a  judicial  one,  amount- 


ing to  an  inquiry  whether  in  regular  legal  pro- 
ceedings a  court  and  jury  would  hold  that 
officer  liable.  Advised,  however,  that  the  cir- 
cumstances may  be  regarded  as  showing  a  prima 
facie  case  of  liability,  calling  for  action  in  the 
way  of  securing  a  judicial  determination  of  the 
question  of  Liability.     (25  Op.  Atty.  Gen.,  97.) 

DecUnes  to  express  an  opinion  upon  question 
whether  a  willful  refusal  to  give  true  answers 
to  inquiries  concerning  census  statistics  would 
subject  a  person  to  the  penalties  prescribed  by 
a  certain  law,  for  the  reason  that  the  question 
is  preeminently  one  for  judicial  and  not  execu- 
tive determination.  Whatever  the  proper  con- 
struction of  the  law  may  be,  the  punishment 
referred  to  could  be  inflicted  in  no  other  way 
than  by  proceedings  in  court.  (25  Op.  Atty. 
Gen.,  369.) 

Whether  proceedings  by  court-martial  would 
bar  proceedings  in  the  civil  courts  for  an  assault 
or  other  crime  involved  in  the  offense  of  hazing, 
not  answered,  for  the  reason  that  it  would  be 
of  no  assistance  to  the  Secretary  of  the  Navy  or 
the  Sui^erintendent  of  the  Naval  Academy  in 
the  proper  discharge  of  their  duties ;  and  should 
such  action  be  taken  the  matter  would  pecu- 
liarly be  one  for  the  consideration  of  the  Depart- 
ment of  Justice.     (25  Op.  Atty.  Gen.,  543.) 

Whether  a  suit  by  the  Government  to  enforce 
recovery  from  the  owners  of  a  vessel  of  amounts 
expended  by  the  United  States  in  the  trans- 
portation back  to  this  country  of  destitute 
seamen  would  be  successful  is  speculative  and 
hypothetical,  and  beyond  the  powers  and 
functions  of  the  Attorney  General  ujider  the 
statutes  to  answer.  The  question  of  the  actual 
Liability  of  the  vessel  owners  is  judicial  in  its 
nature,  and  must  be  determined  by  the  courts. 
(26  Op.  Atty.  Gen.,  631.) 

If  any  conflicting  claims  should  arise  between 
the  Federal  and  State  governments  as  to  juris- 
diction over  lands  owned  by  the  United  States, 
they  will  be  judicial  questions.  (10  Op.  Atty. 
Gen.,  34.) 

IV.  Form  of  Request  for  Opinion. 

Facts  must  be  definitely  stated. — When 
an  opinion  is  requested  of  the  Department  of 
Justice  on  behalf  of  the  head  of  another  Execu- 
tive Department,  the  facts  must  be  definitely 
formulated  and  clearly  stated  by  the  person 
asking  the  opinion.  The  Attorney  General  can 
not  be  required  to  extract  a  finding  of  facts 
from  correspondence  or  reports.  (22  Op.  Atty. 
Gen.,  342.) 

The  Attorney  General  can  not  give  official 
opinions  without  a  definite  statement  of  the 
facts  upon  which  the  question  is  submitted. 
(21  Op.  Atty.  Gen.,  36;  28  Op.  Atty.  Gen.,  393.) 

The  Attorney  General  can  not  properly  make 
a  statement  of  the  facts  for  his  own  use  out  of 
the  correspondence  submitted  to  him  for  an 
opinion.  "The  facts  upon  which  the  question 
is  submitted  should  be  agreed  and  stated  as 
facts  established."  (21  Op.  Atty.  Gen.,  36;  12 
Op.  Attv.  Gen.,  206;  20  Op.  Atty.  Gen.,  440; 
18  Op.  Atty.  Gen.,  488;  9  Op.  Atty.  Gen.,  82.) 

The  reason  for  this  is  that  if  the  Attorney 
General  should  render  an  opinion  upon  such  a 
case  as  he  might  collect  from  the  papers,  he 
might  not  see  the  case  in  all  its  parts  in  the  same 
light  as  that  in  which  it  is  seen  by  the  officer 


307 


Sec.  366. 


Pt.2.  REVISED  STATUTES. 


Justice  Department. 


requesting  liis opiuion.    (21  Op.  Atty.  Gen.,  36; 
19  Op.  Atty.  Gen.,  396.) 

Also,  by  obspn-ing  the  simple  rule  of  stating 
the  material  facts  of  the  case  and  the  precise 
questions  on  wliich  advice  is  wanted,  "the  real 
point  of  diflliculty  in  the  ca.>^e  will  be  at  once 
perceived,  much  inconvenience  avoided,  and 
more  practicable  and  satisfactory  results  ob- 
tained." (21  Op.  Atty.  Gen.,  36;  14  Op.  Atty. 
Gen.,  367,  368.) 

The  head  of  the  department  requesting  an 
opinion  need  not  hunself  state  the  facta,  but  it 
is  essential  that  the  facta  should  be  laid  before 
the  Attorney  General  ^vith  the  assurance  of  the 
head  of  the  department  that  they  are  accurate 
and  tmstworthy.  The  Attorney  General  is 
willing  to  disregard  any  informality  in  the 
manner  of  presenting  such  facts.  (10  Op.  Atty. 
Gen.,  267.) 

It  is  not  within  the  competency  of  the  Attor- 
ney General  to  make  a  finding  of  facts  in  any 
case;  he  can  only  give  his  opinion  on  questions 
of  law  arising  upon  a  statement  of  facts  pre- 
sented by  the  officer  requesting  liis  opinion. 
(19  Op.  Atty.  Gen.,  696.) 

The  Attorney  General  must  have  a  definite 
statement  of  the  facts  before  responding  to  a 
request  for  his  opinion.  (21  Op.  Atty.  Gen.,  36; 
18  Op.  Atty.  Gen.,  487.) 

The  Attorney  General  will  lay  aside  the  evi- 
dence submitted  for  his  consideration  with  re- 
quest for  an  opinion,  and  take  as  the  case  for 
opinion  the  statement  contained  in  the  com- 
munication from  the  head  of  the  department. 
(19  Op.  Atty.  Gen.,  547.) 

"^Tiere  papers  containing  evidence  accom- 
pany request  for  an  opinion,  the  Attorney 
General  will  not  examine  same  but  will  assume 
that  all  the  facts  have  been  found  in  favor  of 
the  applicant.  He  can  not  consider  questions 
of  fact  iipon  evidence  submitted.  (20  Op.  Atty. 
Gen.,  253,  256.) 

WTiether  the  facts  are  presented  by  the  head 
of  a  department  in  the  form  of  a  direct  state- 
ment or  of  an  argumentative  examination  of  the 
circumstances  can  make  no  difference;  they 
must  be  accepted  by  the  Attorney  General  as 
the  bases  of  Ids  reflections  and  judgment  in 
rendering  liis  opinion.     (3  Op.  Atty.  Gen.,  1.) 

It  is  inappropriate  for  the  Attorney  General 
to  re-\dew  certain  briefs  and  correspondence 
submitted  to  Mm  by  the  liead  of  a  department 
^\ith  request  for  an  opinion  thereon,  as  to  do  so 
would  require  liim  to  consider  questions  of  fact 
and  some  questions  of  law  which  clearly  have 
not  arisen  m  the  administration  of  the  depart- 
ment.   (27  Op.  Atty.  Gen.,  49.) 

It  has  been  held  from  a  verj^  early  date  that 
to  obtain  an  official  opinion  of  the  Attorney 
General,  the  request  therefor  should  embody  a 
statement  of  facts  in  the  nature  of  an  agreed 
case  in  an  action  at  law,  and  not  leave  it  to  the 
Attorney  General  to  draw  inferences  of  fact  from 
correspondence  or  documents.  (20  Op.  Attv. 
Gen.,  614.) 

WTiere  no  statement  of  the  facts  is  presented, 
the  Attorney  General  can  not  render  an  opinion. 
"Without,  so  far  as  I  know  a  single  exception, 
it  has  been  held  that  under  section  356,  Revised 
Statutes,  it  is  penni'ssible  for  the  Attorney 
General  to  give  an  opinion  only  upon  a  case 
succinctly  stated — that  is,  to  answer  specific 


questions  of  law  upon  facta  set  forth."  (20  Op. 
Atty.  Gen.,  526,  citing  19  Op.  Atty.  Gen.,  396, 
465;  18  Op.  Atty.  Gen.,  487.  See  also  20  Op. 
Atty.  Gen.,  493.) 

"Accompanying  the  letter  [requesting  opin- 
ion] is  a  considerable  bundle  of  papers  from 
which  it  is  apparently  expected  I  vdW  glean  the 
facts  and  then  communicate  the  desired  infor- 
mation. I  am  very  sorry  that  under  the  uni- 
form ridings  of  this  office  I  am  unable  to  com- 
ply with  this  request."    (20  Op.  Atty.  Gen.,  526.) 

The  Attorney  General  is  not  permitted  by 
statute  to  respond  to  a  request  for  an  opinion  by 
the  head  of  a  department  which  does  not  show 
what  the  facts  are.    (21  Op.  Atty.  Gen.,  506.) 

It  must  be  deemed  settled  that  the  Attorney 
General  can  only  act  upon  a  determinate  state- 
ment of  the  facts  furnished  by  the  officer  asking 
his  opinion.  (10  Op.  Attv.  "Gen.,  267;  11  Op. 
Atty.  Gen.,  189;  21  Op.  Atty.  Gen.,  506.) 

Where  an  official  oi)inion  from  the  Attorney 
General  is  desired  on  questions  of  law  arising  in 
any  case,  the  request  should  be  accompanied 
with  a  statement  of  the  material  facts  of  the 
case.  (21  Op.  Atty.  Gen.,  506;  14  Op.  Atty. 
Gen.,  367.) 

To  authorize  the  Attorney  General  to  express 
an  opinion  upon  a  question  of  law  propounded, 
it  is  necessary  that  a  statement  of  the  facts  be 
submitted  showing  that  the  question  has  actu- 
ally arisen  in  the  administration  of  a  depart- 
ment in  an  existing  case  calling  for  action.  (22 
Op.  Atty.  Gen.,  85.) 

The  settled  policy  of  the  Department  of  Jus- 
tice is  that  no  opinion  should  be  rendered  upon 
any  question  of  law  unless  it  is  accompanied  by 
a  statement  or  finding  of  the  facts  involved. 
(24  0p.  Atty.  Gen.,  59.) 

"  You  do  not  give  me  as  the  basis  for  an  opin- 
ion any  agreed  statement  of  facts,  but  on  the 
contrary  ask  for  an  expression  of  my  opinion 
upon  facts  to  be  gathered  from  the  inclosures  of 
your  letter.  It  has  been  the  invariable  rule  of 
this  department  to  decline  to  give  an  opinion 
except  when  the  request  is  'accompanied  by  a 
statement  or  findings  of  the  facts  involved.'" 
(24  Op.  Atty.  Gen.,  102,  citing  23  Op.  Atty. 
Gen.,  331.) 

The  Attorney  General  can  not  properly  re- 
view a  record  and  memorandum  submitted,  and 
render  his  opinion,  based  upon  facts  deduced 
therefrom.     (26  Op.  Atty.  Gen.,  378.) 

It  has  been  the  invariable  rule  of  the  Depart- 
ment of  Justice  to  decline  to  give  an  opinion 
upon  any  question  of  law  unless  it  is  accom- 
panied by  a  statement  or  finding  of  the  facts  in- 
volved. (26  Op.  Atty.  Gen.,  378,  citing  23 
Op.  Atty.  Gen.,  330;  23  Op.  Atty.  Gen.,  473;  24 
Op.  Atty.  Gen.,  59;  24  Op.  Atty.  Gen.,  102.) 

The  facts  upon  which  the  question  of  law 
arises  must  be  found  and  definitely  stated  in  the 
request  for  an  opinion,  and  not  left  for  the  Attor- 
nev  General  to  extract  from  the  papers  submit- 
ted.    (26  Op.  Atty.  Gen.,  609.) 

The  Attorney  General  must  express  his  regret 
that  the  request  of  the  Department  of  Justice, 
so  often  made,  which  requires  that  a  request  for 
an  official  opinion  shall  be  accompanied  by  a 
statement  of  the  facts,  should  have  been  disre- 
garded.    (26  Op.  Atty.  Gen.,  579.) 

When  the  opinion  of  the  Attorney  General  is 
required  by  the  head  of  an  Executive  Depart- 


308 


Justice  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  356. 


ment,  it  is  necessary  that  the  facts  should  be 
plainly  stated,  and  the  question  upon  which  the 
opinion  is  desired  should  be  specifically  pro- 
pounded. The  Attorney  General  can  not  take 
the  responsibility  of  examining  all  the  papers 
in  the  case,  and  gathering  therefrom  a  conclu- 
sion as  to  what  particular  matters  he  shall  pass 
upon.  [In  this  case  the  Secretary  of  War  re- 
ferred papers  to  the  Attorney  General  by 
indorsement  "with  request  for  opinion  on  the 
questions  presented  by  the  Judge  Advocate 
General  of  the  Army."]  (22  Op.  Atty.  Gen., 
498.) 

Question  of  law  must  be  specifically  for- 
mulated.—The  settled  policy  of  the  Attorney 
General  is  that  no  opinion  should  be  rendered 
upon  any  question  of  law  unless  it  is  specifically 
formulated  in  a  case  actually  arising  in  the  ad- 
ministration of  a  department.  [In  this  case  the 
head  of  the  department  did  not  request  an  opin- 
ion upon  any  specific  question,  but  referred  to  a 
communication  inclosed.]  (24  Op.  Atty.  Gen., 
59.) 

It  has  been  the  invariable  rule  of  the  Attorney 
General  to  decline  to  give  an  opinion  upon  any 
question  of  law  unless  it  is  "specifically  formu- 
lated."    (26  Op.  Atty.  Gen.,  378.) 

The  question  of  law  upon  which  the  opinion 
of  the  Attorney  General  is  desired  must  be 
clearly  and  definitely  formulated.  (26  Op. 
Atty.  Gen.,  609.) 

The  Attorney  General  can  not  give  an  opinion 
upon  a  general  subject  but  only  on  one  or  more 
specific  questions  of  law  based  on  a  case  stated. 
(20  Op.  Atty.  Gen.,  249.) 

The  precise  question  on  which  advice  is 
wanted  must  be  stated.  The  omission  to 
specify  any  particular  points  of  law  for  an  opin- 
ion would  alone  prevent  the  Attorney  General 
acting  on  the  case.  (21  Op.  Atty.  Gen.,  36;  19 
Op.  Atty.  Gen.,  396;  14  Op.  Atty.  Gen.,  367, 
368;  18  Op.  Atty.  Gen.,  487.) 

It  is  inappropriate  for  the  Attorney  General 
to  review  certain  briefs  and  correspondence 
submitted  to  him  by  the  head  of  a  department 
with  request  for  an  opinion  thereon,  as  to  do  so 
would  require  him  to  consider  questions  of  law 
which  clearly  have  not  arisen  in  the  administra- 
tion of  the  department.    (27  Op.  Atty.  Gen.,  49.) 

It  is  permissible  for  the  Attorney  General  to 
give  an  opinion  only  upon  a  case  succinctly 
stated — that  is,  to  answer  specific  questions  of 
law  arising  upon  facts  set  forth.  (20  Op.  Atty. 
Gen.,  526;  19  Op.  Atty.  Gen.,  396;  19  Op.  Atty. 
Gen.,  465;  18  Op.  Atty.  Gen.,  487.) 

Where  an  official  opinion  of  the  Attorney  Gen- 
eral is  desired  on  questions  of  law  arising  in  any 
case,  the  request  should  be  accompanied  with  a 
statement  of  the  precise  questions  on  which 
advice  is  wanted.  (21  Op.  Atty.  Gen.,  506; 
14  0p.  Atty.  Gen.,  367.) 

When  the  opinion  of  the  Attorney  General  is 
requested  by  the  head  of  a  department  it  is 
necessaiy  that  the  question  upon  which  the 
opinion  is  desired  should  be  specifically  pro- 
pounded. The  Attorney  General  can  not  take 
the  responsibility  of  examining  all  the  papers 
in  the  case  and  gathering  therefrom  a  conclusion 
as  to  what  particular  matters  he  shall  pass  upon. 
(22  Op.  Atty.  Gen.,  498.) 

The  Attorney  General  must  express  his  regret 
that  the  request  of  his  department,  so  often 


made,  which  requires  that  a  request  for  an 
official  opinion  shall  so  formulate  a  precise 
question  that  it  may  be  answered  as  a  question 
of  law,  should  have  been  disregarded.  (26  Op. 
Atty.  Gen.,  579.) 

Should  be  accompanied  by  opinion  of  law 
oflicer  of  department  making  inquiry. — In 
a  communication  addressed  by  the  Attorney 
General  to  the  heads  of  ail  the  Executive  De- 
partments under  date  of  October  15,  1906,  it 
was  suggested  "that  Executive  Departments 
having  a  law  officer,  for  example,  the  Judge 
Advocate  General  of  the  Army  or  of  the  Navy, 
the  Comptroller  or  Solicitor  of  the  Treasmy, 
the  Assistant  Attorney  General  for  a  depart- 
ment, when  desiring  an  opinion  of  the  Attorney 
General,  accompany  the  request  therefor  with 
the  written  opinion  of  such  law  officer;  referring 
to  all  legislation  or  decisions  or  any  ruUng, 
usage,  or  practice  of  the  department,  affecting 
the  question;  and  with  a  brief  statement  of 
such  reasons,  for  and  against  such  opinion,  as 
may  occm-  or  be  presented  to  him."  (File 
49-38;  file  22724-16:1,  Jan.  25, 1911;  file  22991-1, 
Dec.  29,  1914.) 

"It  does  not  appear  from  yom-  letter  that  an 
opinion  upon  these  questions  by  the  law  officer 
of  your  department  has  been  obtained.  *  *  * 
It  seems  to  me  that,  before  attempting  to 
answer  the  questions  submitted,  I  should  have 
the  benefit  and  assistance  of  such  an  opinion 
by  the  Judge  Advocate  General,  or  at  least  a 
memorandum  by  him  'referring  to  all  legisla- 
tion or  decisions  or  any  ruling,  usage,  or  prac- 
tice' of  your  department  affecting  these  ques- 
tions. If,  after  such  an  opinion  or  memoran- 
dum has  been  prepared  by  that  officer,  you 
still  desire  my  advice  in  the  premises,  I  shall 
be  pleased  to  respond  to  your  request  for  my 
opinion  upon  the  questions  presented."  (At- 
torney General  to  Secretary  of  the  Navy,  Jan. 
25,  1911,  file  22724-16:1;  see  also  letter  from 
Attorney  General  to  Secretary  of  the  Navy. 
Jan.  20,  1915,  file  27223-12.)'  [In  the  latter 
case,  after  obtaining  the  opinion  of  the  Judge 
Advocate  General,  the  Secretary  of  the  Navy 
withdrew  his  request  for  the  Attorney  General's 
opinion,  stating  that  he  no  longer  entertained 
doubt  upon  the  question  presented.  File 
27223-12,  Jan.  27,  1915.] 

"I  beg  leave  respectfully  to  suggest  that  it 
would  very  much  tend  to  facilitate  my  inquiries 
in  references  made  from  yom"  department,  and 
probably  to  promote  the  public  interest,  if 
these  were  accompanied  by  a  statement  show- 
ing the  views  of  the  department  in  relation  to 
the  several  acte  which  are  supposed  to  be 
involved  in  the  inquiry,  and  the  precedents,  if 
any,  which  are  to  be  found  in  its  archives." 
(2  Op.  Atty.  Gen.,  311,  to  the  Secretarj-^  of  the 
Navy.)_ 

"It  is  directed  that  all  requests  for  opinions 
of  the  Attorney  General  be  accompamed  by 
the  written  opinion  of  the  Judge  Advocate  Gen- 
eral or  the  solicitor,  who  will  also  prepare  the 
request  for  the  Attorney  General's  opinion  in 
accordance  with  articles  K-117  (1)  and  134  (2), 
Navy  Regulations,  1913."  (Order  Sec.  Nav.. 
Jan.  15,  1915,  file  22991-1 .  See  also  file  20400- 
200,  Op.  13,  Sept.  25,  1920.  quoting  letter  from 
Atty.  Gen.  to  Sec.  Navv,  Sept.  13,  1920,  file 
204625.) 


309 


Sec.  356. 


Pt.2.  REVISED  STATUTES. 


Justice  Department. 


V.  Weight  of  Opinions. 

Are  conclusive  on  administrative  oflB.- 
cez's. — The  law  inteiuls  that  the  opinions  of 
the  Attorney  General  >shonl(l  have  authority. 
(20  Op.  Atty.  Gen.,  388.) 

Congress  evidently  contemplated  that  the 
official  opinions,  signed  or  indorsed  by  the 
Attorney  General,  should  have  some  actual  and 
practical  force.  (See  sec.  358,  R.  S.)  Con- 
gress's intention  can  not  be  doubted  tnat  ad- 
ministrative ofiicers  should  regard  them  as  law 
until  withdrawn  by  the  Attorney  General  or 
overruled  by  the  com'ts,  thus  confirming  the 
view  which  generally  prevailed,  though  some- 
times hesitatingly  expressed,  previous  to  the 
establishment  of  the  Department  of  Justice. 
(20  Op.  Atty.  Gen.,  654,  659  quoted  ^vith  ap- 
proval in  Smith  v.  Jackson,  241  Fed.  Rep.,  747; 
affirmed  246  U.  S.,  388;  20  Op.  Attv.  Gen., 
719,  722.) 

The  ruling  of  the  Attorney  General  upon  a 

Suestion  submitted  by  the  Secretary  of  the 
avy,  although  the  validity  of  a  disbursement 
was  involved  which  had  been  otherwise  de- 
cided by  the  Comptroller  of  the  Treasury  is 
binding  upon  the  Department  of  Justice  and 
upon  other  departments  of  the  Government. 
(Attorney  General  to  the  Solicitor  of  the  Treas- 
ury, Apr.  30,  1918,  W.  C.  F.  191681-1  W.  C.  H., 
Navy  Dept.  file  26254-1451: 15,  citing  Smith  v. 
Jackson,  246  U.  S.,  388,  241  Fed.  Rep.,  747, 
instructing  the  Solicitor  not  to  institute  suit 
against  the  officer  making  the  payment  although 
requested  so  to  do  by  the  Comptroller.) 

Of  course  the  opinion  of  the  Attorney  General, 
when  rendered  in  a  proper  case — as  must  be  the 
presumption  always  from  the  fact  that  it  is 
rendered — must  be  controlling  and  conclusive, 
establishing  a  rule  for  the  guidance  of  other 
officers  of  the  Government,  and  must  not  be 
treated  as  nugatory  and  ineffective.  (25  Op. 
Atty.  Gen.,  301;  citing  20  Op.  Atty.  Gen.,  648, 
5  Op.  Atty.  Gen.,  97,  6  Op.  Atty.  Gen.,  334. 
7  Op.  Atty.  Gen.,  699,  9  Op.  Atty.  Gen.,  37.) 

If  a  question  is  presented  to  the  Attorney 
General  in  accordance  with  law — that  is,  if  it 
is  submitted  by  the  President  or  the  head  of  a 
department — his  opinion  thereon  is  final  and 
authoritative  under  the  law,  and  should  be  so 
treated  by  the  accounting  officers,  even  if  the 
question  involves  a  payment  to  be  made. 
Congress  in  establishing  the  office  of  the  Comp- 
troller of  the  Treasury  did  not  intend  to  shorten 
the  reach  of  sections  354  and  356,  Revised  Stat- 
utes, as  construed  to  give  the  opinions  of  the 
Attorney  General  controlling  authority.  (25 
Op.  Atty.  Gen.,  301.) 

For  other  cases,  see  below,  "VI  Jurisdic- 
tion Attorney  General  and  Comptroller  of  the 
Treasury." 

Are  generally  followed  in  practice. — It 
is  true  the  law  does  not  say  what  effect  shall  be 
given  to  the  opinions  of  the  Attorney  General, 
yet  the  general  practice  of  the  Government  has 
been  to  follow  it,  and  this  for  the  reasons  stated 
by  Attorney  General  Cushing,  viz,  that  an 
officer  going  against  it  "would  be  subject  to  the 
imputation  of  disregarding  the  law  as  officially 
pronounced,"  and  that,  without  "the  guidance 
of  a  single  department  of  assumed  special  quali- 
fications and  official  authority,"  uniformity  and 


stability  in  the  application  of  the  laws  would 
be  hardily  atUunable.  (20  Op.  Atty.  Gen.,  383, 
citing  6  Op.  Atty.  Gen.,  334.) 

In  rendering  opinions  to  the  President  and 
heads  of  departments,  the  action  of  the  Attorney 
General  is  quasi  judicial.  His  opinions  offi- 
cially define  the  law  in  a  multitude  of  cases, 
where  his  decision  is  in  practice  final  and  con- 
clusive. Accordingly,  tne  opinions  of  succes- 
sive Attorneys  General,  possessed  of  greater  or 
less  amount  of  legal  acumen,  acquirement,  and 
experience,  have  come  to  constitute  a  body  of 
legal  precedents  and  exposition,  having  au- 
thority the  same  in  kind  if  not  the  same  in  de- 
gree, with  decisions  of  the  courts  of  justice. 
Although  the  act  requiring  this  duty  of  the 
Attorney  General  does  not  expressly  declare 
what  effect  shall  be  given  to  his  opinion,  yet  the 
general  practice  of  the  Government  has  been  to 
follow  it;  partly  for  the  reason  suggested,  that 
an  officer  going  against  it  would  be  subject  to 
the  imputation  of  disregarding  the  law  as  offi- 
cially pronounced,  and  partly  from  the  great 
advantage  and  almost  necessity  of  acting  ac- 
cording to  uniform  rules  of  law  in  the  manage- 
ment of  the  public  business;  a  result  only  at- 
tainable under  the  guidance  of  a  single  depart- 
ment of  assumed  special  qualifications  and  offi- 
cial authority.     (6  Op.  Atty.  Gen.,  326,  334.) 

The  law  does  not  declare  what  effect  shall  be 
given  to  the  advice  and  opinion  of  the  Attorney 
General,  but  it  is  beUeved  that  the  practice  of 
the  Government  has  invariably  been  to  follow 
it.  This  has  been  done  from  the  great  advan- 
tage and  almost  absolute  necessity  of  having 
uniform  rules  of  decision  for  all  questions  of  law 
in  analogous  cases,  a  result  much  more  certain 
under  the  guidance  and  decision  of  a  single 
department  constituted  for  the  very  purpose  of 
advising  upon  all  questions  and  with  supposed 
special  qualifications  for  such  a  duty.  In  my 
opinion  this  practice  should  be  considered  as 
law.     (5  Op.  Atty.  Gen.,  97.) 

Have  been  held  not  conclusive. — It  must 
be  conceded  that  an  opinion  of  the  Attorney 
General  is  not  conclusive ;  that  is,  it  is  not  com- 
pulsory on  the  President  or  even  on  the  head  of 
a  department.  It  is  inconvenient,  however,  to 
have  a  conflict  of  opinion  between  the  Attorney 
General  and  a  head  of  department;  and  that 
inconvenience  is  placed  in  the  strongest  light 
by  the  facts  of  this  case,  where  the  affirmative 
opinion  of  one  Attorney  General  went  disre- 
garded by  one  Secretary,  and  a  negative  opinion 
of  another  Attorney  General,  by  the  succeeding 
Secretary.  There  can  be  no  more  flagrant  ex- 
ample of  confusion  of  opinion  and  action. 
(7  Op.  Atty.  Gen.  691,  699.) 

Though  opinions  of  the  Attorney  General 
have  technically  no  binding  effect,  it  is  sug- 
gested that  it  is  generally  safer  and  better  to 
adopt  them.  Uniformity  of  decision  in  the 
different  departments  on  similar  subjects  is 
necessary  and  can  not  be  secured  otherwise. 
(9  Op.  Atty.  Gen.,  33,  36.) 

While  the  Attorneys  General  have  never 
claimed  for  their  official  opinions  the  force  of 
law,  it  has  always  been  regarded  as  the  proper 
practice  to  follow  their  guidance.  And  Con- 
gress, while  never  legislating  on  this  point, 
seems  to  contemplate  that  they  are  to  be  given 
practical  effect.     (20  Op.  Atty.  Gen.,  648.) 


310 


Justice  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  356. 


Vie-w  that  opinions  are  advisory  only. — 
The  duty  of  the  Attorney  General  is  to  advise, 
not  to  decide.  A  thing  is  not  to  be  considered 
as  done  by  the  head  of  a  department  merely  be- 
cause the  Attorney  General  has  advised  him  to 
do  it.  The  heads  of  departments  may  disre- 
gard his  opinion  if  sure  it  is  wrong.  The  Attor- 
ney General  aids  them  in  forming  a  judgment 
on  questions  of  law;  but  still  the  judgment  is 
theirs,  not  his.  They  are  not  bound  to  see  with 
his  eyes,  but  only  to  use  the  light  which  he  fur- 
nishes, in  order  to  see  the  better  with  their  own. 
(9  Op.  Atty.  Gen.,  33,  36;  see  also  10  Op.  Atty. 
Gen.,  48.) 

By  long  and  unbroken  construction  and  prac- 
tice, it  has  been  settled  that  the  Attorney  Gen- 
eral acts,  in  performing  this  legal  duty,  simply 
as  the  law  adviser  of  the  President  and  heads  of 
departments.  He  is  bound,  upon  points  of 
law  and  facts  stated  by  them,  to  give  legal 
opinions  in  aid  of  their  judgment,  in  matters 
for  their  decision.  (11  Op.  Atty.  Gen.,  4, 
quoting  opinion  of  Oct.  23,  1863.) 

The  opinion  of  the  Attorney  General  is  ad- 
visory only.  The  Attorney  General  has  no  con- 
trol over  the  action  of  the  head  of  the  depart- 
ment to  whom  the  opinion  is  addressed,  nor 
could  he  with  propriety  express  any  judgment 
concerning  the  disposition  of  the  matter  to  which 
the  opinion  relates,  that  being  something 
wholly  within  the  administrative  sphere  and 
direction  of  such  head  of  department.  (17  Op. 
Atty.  Gen.,  332.) 

The  Court  of  Claims,  in  holding  that  its  find- 
ings and  opinions  are  binding  upon  heads  of 
departments  in  cases  referred  to  it  by  the  latter, 
pursuant  to  act  of  Congress,  remarked  that  to 
hold  otherwise,  "would  be  construing  the  act  as 
requiring  a  useless  procedure;  and  that  if  it  be 
contended  that  the  report  of  the  court  is  only 
ad\-i3ory,  then  the  answer  is  that  the  Attorney- 
General  is  the  law  officer  of  the  Government 
and  under  the  Revised  Statutes  the  head  of  any 
Executive  Department  may  require  his  opinion 
on  any  questions  of  law  arising  in  the  adminis- 
tration of  his  department.  "  The  conclusion  of 
the  court,  as  stated  in  the  syllabus,  was  that 
"the  findings  and  decisions  of  the  court  are  not 
open  to  revision  in  the  department.  Legal 
opinions  for  the  guidance  of  the  head  of  a  de- 
partment, not  obligatory,  are  to  be  given  by  the 
Attorney  General,  pursuant  to  Revised  Stat- 
utes, section  356,  and  not  by  the  judiciary. " 
(Berger^^  U.  S.,  36  Ct.  Cls.,  243,  247.) 

In  case  of  conflict,  should  be  submitted 
to  President. — A  Secretary  undoubtedly  is 
entitled  to  have  and  to  act  upon  his  conscien- 
tious opinion  of  a  question,  even  after  he  has 
taken  the  opinion  of  the  Attorney  General;  but 
it  would  seem  that  any  such  conflict  of  opinion 
between  the  Secretary  asking  and  the  Attorney 
General  giving  official  advice  should  be  re- 
ferred at  once  to  their  common  superior,  the 
President,  in  order  that  the  particular  question 
of  administration  itself  may  receive  the  au- 
thoritative decision  of  the  executive  Govern- 
ment. (7  Op.  Atty.  Gen.,  691,  699.)  [In  this 
case  the  Attorney  General  remarked  that  its 
history  exhibits  a  spectacle  of  vacillation  and 
contradiction  of  opinion  on  the  part  of  the  Gov- 
ernment which  it  is  humiliating  to  contem- 
plate.] 


irnoflB.cial  opinion. — An  expression  of  opin- 
ion by  the  Attorney  General  on  a  question 
which  it  is  not  his  official  duty  to  answer  would 
have  no  more  weight  than  the  opinions  of 
any  unofficial  person.  (20  Op.  Atty.  Gen., 
383;  17  Op.  Atty.  Gen.,  357;  20  Op.  Atty.  Gen., 
667;  20  Op.  Atty.  Gen.,  440;  2  Op.  Atty.  Gen., 
531.) 

Obiter  dicta. — Remarks  in  an  opinion  of  the 
Attorney  General  which  are  merely  obiter  do 
not  have  the  force  and  effect  of  an  official  opin- 
ion.    (21  Op.   Atty.  Gen.,  25.) 

VI.  Jurisdiction,    Attorney   General   and 
Comptroller  of  the  Treasury. 

(A)  In  general. 

(B)  Questions  which  should  be  asked  comptroller. 

(C)  When  Attorney  General  icill  render  opinion. 

(D)  Effect  of  Attorney  General's  opinion. 

(E)  Views  of  Comptroller  of  the   Treasury  as  to 

jurisdiction. 


A.  In  general. 

The  Attorney  General's  office  should  not 
be  allowed  to  become  a  refuge  for  doubt- 
ful claims  from  the  more  thorough  and  search- 
ing investigations  of  the  accounting  officers 
and  the  Court  of  Claims.  The  Attorney  Gen- 
eral has  no  machinery  to  ascertain  and  test  the 
trustworthiness  of  alleged  facts.  (11  Op.  Attv. 
Gen.,  4.) 

Opinions  of  Comptroller  on  questions  of 
law.— Prior  to  the  act  of  JulvSl,  1894,  section  8 
(28  Stat.,  208),  the  Comptroller  of  the  Treasury 
had  no  legal  status  as  an  adviser  upon  legal 
questions.  He  was  an  accounting  officer  hold- 
ing great  power,  but  his  function  was  to  take 
action,  not  to  advise  others  how  to  act.  (20 
Op.  Atty.  Gen.,  654.) 

The  act  of  July  31, 1894,  makes  it  obligatory 
upon  the  Comptroller  of  the  Treasury  to  make 
a  decision  upon  any  question  involving  a  pay- 
ment to  be  made  by  or  under  the  head  of  any 
executive  department,  and  it  contemplates 
the  construction  by  him  of  statutes.  (21  Op. 
Atty.  Gen.,  181.) 

In  form  the  Comptroller  is  asked  for  legal  ad- 
\dce;  in  fact,  what  is  desired  is  information  as 
to  his  future  action.  Even  prior  to  the  act 
of  July  31,  1894,  it  was  customary  to  ask  his 
opinion  on  questions  of  law  and  this  custom 
was  a  convenient  and  proper  and  even  neces- 
sary one,  within  certain  limits.  The  custom 
doubtless  arose  from  the  importance  of  knowing 
beforehand,  when  expenses  were  to  be  incurred, 
what  the  decision  of  the  comptroller  would  be 
afterwards  when  the  question  of  legality  came 
up  upon  the  settlement  of  the  accounts.  (20 
Op.  Atty.  Gen.,  654.) 

Where  the  Comptroller  gives  advice  upon 
questions  of  law  which  are  not  anticipatory  of 
future  decisions  by  himself,  such  adA-ice  is,  of 
course,  purely  extraofficial.  The  advice  thus 
given  is  doubtless  intrinsically  most  valuable, 
but  otherwise  it  differs  in  no  way  from  advice 
on  the  same  subject  by  any  outsider.  (20  Op. 
Atty.  Gen.,  654.) 

The  view  that  the  opinions  of  theComptroller, 
rendered  to  the  head  of  a  department  upon 
legal   questions,   are  purely   extraofficial   and 


311 


Sec.  356. 


Pi.  2.  REVISED  STATUTES. 


Justice  Department. 


rendered  by  courtesy  only,  is  no  longer  tenable 
in  view  of  the  act  of  July  31, 1894.  section  8  (28 
Stat.,  208),  which  authorizes  the  Comptroller  to 
render  an  advance  decision  upon  '  'any  question 
involvini/  a  payvi€7it."  (22  Op.  A(ty(icn.,  581.) 
Whetlier  a  Navy  regulation  Iuuh  binding  force 
as  law  on  the  accountiug  olliccrs  of  the  Govern- 
ment, is  a  question  of  law  and  not  one  of  ac- 
counting, and  the  Attorney-General  will  render 
an  opinion  thereon  upon  request  of  the  Secre- 
tary of  the  Navy,  although  the  Comptroller 
claims  his  jurisdiction  to  be  conclusive  and 
declines  to  concur  in  the  submission  to  the 
Attorney  General.  (30  Op.  Atty.  Gen.,  376, 
171  S.  and  A.  Memo.,  3611;  file  26254-1451:11, 
Apr.l3, 1915;  21  Comp.Dec,  554,  560.) 

Attorney  General's  jurisdiction  not  cur- 
tailed by  powers  given  Comptroller. — ^Con- 
gress  intended   to  confine  the  power  of  the 
Comptroller  within  a  relatively  narrow  range 
and  did  not  mean  to  curtail  the  occasions  for 
the  rendering  of  opinions  by  the  Attorney  Gen- 
eral or  to  diminish  their  scope  and  weight. 
The  act  of  1894  does  not  establish  a  rule  which 
is  universal  and  without  exception  under  all 
circumstances.     Congress  did  not  by  that  en- 
actment intend  to  shorten  the  reach  of  sections 
354  and  356,  Revised  Statutes,  as  construed  to 
give  the  opinions  of  the  Attorney  General  con- 
trolling authority ;  or  to  repeal  pro  tan  to  [for  so 
much]  those  sections.    (25  Op.  Atty.  Gen.,  301.) 
"Shortly  after  the  act  of  July  31,  1894,  was 
enacted,  the  question  arose  as  to  its  effect  upon 
the  Attorney  General's  jurisdiction  under  sec- 
tion 356  of  the  Revised  Statutes,  and  the  rule 
was  established  by  the  Attorney  General  that 
he  was  not  to  render  an  opinion  iipon  questions 
which  might  be  referr3d  to  the  Comptroller  of 
the  Treasury  except  in  cases  of  great  impor- 
tance, or  where  the  Comptroller  of  the  Treasury 
concurred  in  the  reference,  but  that  in  such 
cases  he  was  authorized  to  render  an  opinion. 
In  other  words,  that  the  jurisdiction  of  the  At- 
torney General  was  not  restricted  by  the  act  of 
1894,  but  that  the  occasions  for  the  exercise  of 
such  jurisdiction,  in  cases  involving  disburse- 
ments, would   be  infrequent  in  view  of  the 
latter  act.     The  Comptroller  of  the  Treasury 
fully  concurred  in  the  ruling  that  the  Attorney 
General's  jurisdiction  continued  under  section 
356   of   the   Revised    Statutes   even   in    cases 
covered  by  the  act  of  1894,  and  encouraged  the 
Attorney  General  to  exercise  liis  jurisdiction  in 
such  cases  by  frequently  suggesting  to  heads  of 
departments  tliat  they  refer  questions  of  law  to 
the    Attorney    General    for    opinion.     *    *    * 
The  Comptroller  of  the  Treasury  has  thus  uni- 
formly recognized  the  superior  facilities  of  the 
Department   of  Justice    to   decide   important 
questions  of  law,  even  where  disbursements  are 
involved;  while  on  the  other  hand  the  Attorney 
General  has  repeatedly  recognized  the  superior 
qualifications  of  the  Comptroller  of  the  Treasury 
to  decide  certain  classes  of  questions  which  in- 
volve the  use  of  appropriations  and  technical 
questions  of  accounting."     (File  26254-1451:11, 
Apr.  12,  1915.) 

Question  one  of  etiquette. — There  is,  of 
course,  in  this  matter  a  large  element  of  pro- 
priety and  etiquette,  which  has  led  Attorneys 
General  to  decline  to  pass  upon  many  ques- 
tions, however  important  in  their  essential  and 


abstract  bearings,  because  payments  are  also 
involved.     (25  Op.  Atty.  Gen.,  301.) 

Reference  to  Comptroller  not  re- 
qmred. — The  law  permits,  but  does  not  re- 
quire the  reference  of  any  question  involving 
a  payment  to  the  Comptroller  of  the  Treasury; 
and  it  is  thus  suggested  that,  whatever  the  final 
action  of  the  auditor  and  Comptroller  may  be 
upon  the  account,  the  reference  of  every  ques- 
tion to  the  Comptroller  for  decision  is  not  de- 
manded by  the  law  simply  because  such  a 
question  may  ultimately  reach  the  accounting 
stage.     (26  Op.  Atty.  Gen.,  81.) 

B.  Qiiestions  which  should  be  asked  the  Comp- 
troller. 

Except  in  matters  of  great  importance, 
or  where  the  question  is  a  general  one, 
applicable  to  all  the  departments,  the  opin- 
ion of  the  Attorney  General  should  no  longer 
be  asked  upon  questions  which  the  Comptroller 
of  the  Treasury  was  authorized  to  decide  upon 
request  of  the  head  of  any  department,  by  the 
actofJuly31, 1894;  they  arequestionswhich  the 
Comptroller,  by  his  greater  experience  is  better 
qualified  to  pass  upon,  and  it  is  desirable  to 
avoid  any  possible  conflict  of  precedents.  An 
opinion  of  the  Comptroller  of  the  Treasury 
forms  a  complete  protection.  (21  Op.  Atty, 
Gen.,  178;  21  Op.  Atty.  Gen.,  181;  26  Op. 
Atty.  Gen.,  81.) 

Upon  questions  of  the  disbursement  of 
money  and  payment  of  claims,  which  have 
been  relegated  by  law  to  the  Comptroller  of  the 
Treasury,  the  Attorney  General  should  not 
render  opinions,  especially  in  view  of  the  fact 
that  if  the  matter  is  doubtful  it  can  be  referred 
to  the  Court  of  Claims  for  authoritative  decision. 
(21  Op.  Atty.  Gen.,  530.) 

Except  in  matters  of  great  importance,  the 
Attorney  General  will  not  express  an  opinion 
upon  any  question  involving  a  payment  to  be 
made  by  or  under  the  head  of  an  executive  de- 
partment. That  duty  under  the  law  is  imposed 
upon  the  Comptroller  of  the  Treasury,  whose 
opinion  is  binding  and  conclusive.  (23  Op. 
Atty.  Gen.,  1.) 

The  authority  of  the  Comptroller  is  com- 
plete to  decide  a  question  involving  a  payment 
to  be  made  from  the  Treasury,  so  as  to  govern 
the  auditing  officers  and  himself  in  passing 
upon  accounts.  Accordingly,  in  various  in- 
stances the  Attorneys  General  have  declined  to 
give  an  opinion  upon  a  question  of  this  nature. 
(25  Op.  Atty.  Gen.,  301;  citing  21  Op.  Atty. 
Gen.,  178,  530;  22  Op.  Atty.  Gen.,  581;  23  Op. 
Atty.  Gen.,  468;  24  Op.  Atty.  Gen.,  553.  See 
also  26  Op.  Ally.  Gen.,  609.) 

To  which  of  two  appropriations  certain 
expenses  should  be  charged  is  a  question 
which  may  be  asked  of  the  Comptroller  of  the 
Treasury.  It  belongs  to  a  class  of  questions 
which  require  for  their  decision  a  superior 
knowledge  of  our  appropriation  acts  and  the 
course  of  decisions  thereunder.  They  are 
questions  which  the  Comptroller,  by  his  great 
experience,  is  better  qualified  to  pass  upon,  and 
it  is  desirable  to  avoid  any  possible  conflict  of 
precedents.  Therefore  it  seems  inadvisable  for 
the  Attorney  General  to  attempt  to  pass  upon 
these   inquiries.     (21    Op.    Atty.    Gen.,    405. 


312 


Justice  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  356. 


[Later  the  Attorney  General  rendered  an  opin- 
ion on  this  question,  it  appearing  that  it  did  not 
belong  to  the  Comptroller  of  the  Treasiuy. 
Question  concerned  appropriation  for  public 
printing.     (21  Op.  Atty.  Gen.,  423.)] 

Specific  questions  which  Attorney  Gen- 
eral has  declined  to  answer. — \Miether  cer- 
tain expenses  of  Department  of  Agriculture  are 
payable  from  a  certain  appropriation  for  that 
department.     (21  Op.  Atty.  Gen.,  221.) 

Use  of  appropriation  by  Secretary  of  War  for 
"transportation  of  the  Army  and  its  supplies." 
(22  Op.  Atty.  Gen.,  665.) 

\^Tiether  expense  of  preparing  certain  blank 
forms  and  furnishing  them  to  collectors  can  be 
paid  out  of  appropriation  for  defraying  the  ex- 
penses of  collecting  the  revenue  from  customs. 
(25  0p.Atty.  Gen.,50.) 

Allowance  of  extra  compensation,  in  lieu  of 
annual  leave,  to  certain  former  employees  of 
Census  Office;  which  question,  in  its  ultimate 
effect,  relates  solely  to  payments  out  of  the 
Treasury.     (24  Op.  Atty.  Gen.,  85.) 

WTiether  a  retired  officer  advanced  in  rank 
and  pay  by  the  Executive,  may  be  paid  at  the 
advanced  rate  before  the  Senate  has  consented 
to  the  advancement;  which  question  had  al- 
ready been  decided  by  the  Comptroller  of  the 
Treasury.     (25  Op.  Atty.  Gen. ,185.) 

Questions  of  disbursement  of  money  or  pay- 
ment of  claims.     (22  Op.  Atty.  Gen.,  581.) 

Question  involved  in  and  arising  out  of  a 
claim  for  payment  of  money  which  is  pending 
before  the  Treasury  Department.  (23  Op. 
Atty.  Gen.,  2.) 

Claim  for  payment  of  a  sum  of  money  by  the 
War  Department,  as  compensation  for  the  can- 
cellation of  a  contract.     (23  Op.  Atty.  Gen.,  86.) 

Payment  for  rent  of  a  letter  box  in  a  post  office 
for  use  of  an  Army  officer;  where  comptroller 
decided  that  the  rent  could  not  be  paid  in 
advance,  and  the  Postmaster  General  decided 
that  such  boxes  can  not  be  rented  to  an  officer 
of  the  Government  unless  payment  is  made 
before  they  are  used.  The  Comptroller  has 
passed  upon  the  precise  question  submitted; 
he  does  not  request  any  review  of  that  decision ; 
and  the  question  is  not  one  of  sufficient  im- 
portance to  bring  it  within  the  class  of  cases 
which,  while  concernuig  disbursements  of 
money,  nevertheless  by  reason  of  their  great 
importance  or  general  character  have  been  held 
to  warrant  an  expression  of  opinion  by  the 
Attorney  General.  (25  Op.  Atty.  Gen.,  614; 
25  Op.  Atty.  Gen.,  185.  But  see  below  "Where 
Comptroller  does  not  join  in  request.") 

WTiether,  under  the  annual  appropriation  for 
the  care  of  patients  in  a  designated  hospital, 
the  Surgeon  General,  United  States  Army, 
may  contract  with  the  institution  to  pay  a 
stipulated  sum  per  month  for  keeping  in  a  state 
of  preparedness  for  a  specified  number  of  pa- 
tients; there  not  being  in  every  month  an  aver- 
age of  that  number  of  patients  in  the  hospital, 
but  where  the  monthly  average  per  year  equals 
or  exceeds  that  number.  The  Attorney  Gen- 
eral deems  it  inexpedient  to  give  an  opinion 
upon  this  question,  which  is  clearly  proper  for 
the  Comptroller  to  decide.  (26  Op.  Atty.  Gen., 
431.) 

Authority  to  refund  duties  and  appropriation 
to   which   chargeable;  especially   where   such 


questions  have  already  been  decided  by  the 
Comptroller  of  the  Treasury.  (23  Op.  Atty. 
Gen.,  468;  affirmed  23  Op.  Atty.  Gen.,  586; 
24  Op.  Atty.  Gen.,  553;  cited  25  Op.  Atty.  Gen., 
50.) 

Manner  of  drawing  funds  from  the  Treasury, 
and  the  administrative  examination  of  accounts 
of  officers  disbursing  them.  (22  Op.  Atty.  Gen., 
414.) 

Questions  which  involve  the  payment  of 
money  by  the  Treasurv  Department.  (23 
Op.  Atty.  Gen.,  431.) 

Question  involving  the  pay  to  which  an 
officer  of  the  Navy  is  entitled  under  certain 
conditions,  where  this  question  has  been  de- 
cided by  the  Comptroller,  who  does  not  concur 
in  its  reference  to  the  Attorney  General,  and  the 
question  is  not  of  sufficient  importance  to 
justify  a  departiu-e  from  the  general  rule. 
(28  Op.  Atty.  Gen.,  129.) 

C.   When  Attorney  General  will  render  an  opinion. 

Questions  of  general  and  great  impor- 
tance, where  Comptroller  concurs  in  re- 
quest.— \Mien  the  question  is  of  general  and 
great  importance,  and  especially  when  the 
Comptroller,  in  advance  of  decision  by  himself, 
requests  or  suggests  that  the  matter  be  referred 
to  the  Attorney  General,  and  states  that  the 
opinion  of  the  Attorney  General  will  be  fol- 
lowed by  him,  the  question  may  properly  be  an- 
swered by  the  Attorney  General,  although  a 
disbursement  may  be  involved.  (25  Op.  Atty. 
Gen.,  301,  citing  21  Op.  Atty.  Gen.,  181,  224, 
402.) 

If  the  Attorney  General  considers  the  question 
presented  one  of  great  importance  in  other  direc- 
tions than  disbursements,  and  especially  when 
the  Comptroller  suggests  an  examination  of  the 
matter  by  him,  an  opinion  on  his  part  will  be 
proper  and  the  decision  final  and  authoritative. 
(25  Op.  Atty.  Gen.,  601.) 

Generally  speaicing,  the  decision  of  the  Comp- 
troller of  the  Treasury  is  conclusive  in  cases  in- 
volving the  application  of  an  appropriation  and 
the  expenditure  of  public  moneys.  However, 
when  the  disbursement  is  a  question  of  general 
and  great  importance,  and  especially  when  the 
comptroller,  in  advance  of  a  decision  by  him- 
self, requests  that  the  matter  be  refeiTed  to  the 
Attorney  General  for  opinion,  and  states  that  he 
will  be  gtiided  by  such  opinion,  the  question 
may  properly  be  answered  by  the  Attorney 
General.     (26  Op.  Atty.  Gen.,  609.) 

WTiere  the  Comptroller  of  the  Treasury  states 
that  the  opinion  of  the  Attorney  General  will  be 
followed  by  him,  the  Attorney  General  will 
comply  with  the  request  of  the  head  of  a  depart- 
ment for  his  opinion  in  the  premises,  the  qties- 
tion  being  one  of  importance,  and  the  Comp- 
troller thus  joining  in  asking  that  it  be  answered. 
(21  Op.  Atty.  Gen.,  224.  But  see 21  Op.  Atty. 
Gen.,  251,  and  21  Op.  Atty.  Gen.,  320,  where 
opinions  upon  similar  questions  were  rendered, 
although  it  did  not  appear  that  the  Comptroller 
joined  in  the  reference.) 

A  question  which  was  referred  to  the  Comp- 
troller of  the  Treasurj^  and  at  his  request  re- 
ferred to  the  Attorney  General,  was  answered  by 
the  latter  because  it  was  an  important  one.  (21 
Op.  Atty.  Gen.,  402.) 


313 


Sec.  356. 


Pt.  2.  REVISED  STATUTES. 


Justice  Department. 


With  reference  to  the  question  of  pay  of  cer- 
tain Navy  oflicers  on  promotion,  which  was 
pending  before  the  Comptroller  of  the  Treasury, 
the  Secretary  of  the  Treasury  reqtiested  the 
oj)inion  of  the  Attorney  General  upon  certain 
questions  proposed  by  the  Comptroller  of  the 
Treasury,  and  transmitted  with  the  Secretary's 
note.  An  opinion  was  rendered  upon  such 
questions  for  the  guidance  of  the  Comptroller. 
(2;U)p.  Atty.  Gen..30.) 

With  reference  to  the  question  whether  the 
accounting  officers  of  the  Treasury  may  legally 
allow  claims  for  transportation  upon  requests 
fraudulently  issued  by  an  officer  of  the  Army, 
which  question  was  submitted  to  the  Attorney 
General  by  indorsement  of  the  Secretary  of  the 
Treasury  on  a  letter  of  the  Comptroller  of  the 
Treastiry,  the  Attorney  General  rendered  an 
opinionto  the  Secretary.  (23  Op.  Atty.  Gen., 
161.) 

The  Secretary  of  War,  in  accordance  with  the 
sxiggestion  of  the  Comptroller  of  the  Treasury, 
reqtiested  and  received  an  opinion  of  the  Attor- 
ney General  as  to  use  of  an  appropriation  for  in- 
stallation of  range  and  position  finders  in  Porto 
Rico.     (23  Op.  Atty.  Gen.,  390.) 

Concerning  the  pay  of  retired  officers  of  the 
Army,  the  Attorney  General  rendered  an  opin- 
ion to  the  Secretary  of  War,  remarking:  "The 
Comptroller  of  the  Treasury  requests  or  concurs 
in  the  reference  of  the  question  to  me,  and  it  is 
proper,  therefore,  that  I  should  respond."  (25 
Op.  Atty.  Gen.,  299.) 

The  Secretary  of  the  Navy,  with  the  concur- 
rence of  the  Comptroller  of  the  Treasury,  re- 
qxiested  an  opinion  which  was  rendered  by  the 
Attorney  General,  concerning  the  pay  of  a  cer- 
tain retired  mate  in  the  Navy.  (26  Op.  Atty. 
Gen.,  599;  file  3031-34.) 

The  Attorney  General  refrains  from  rendering 
an  opinion  upon  a  qxiestion  submitted  to  him  by 
the  Secretary  of  the  Treasury,  for  the  reason 
that  the  question  can  be  asked  of  the  Comptrol- 
ler of  the  Treasury.  (21  Op.  Atty.  Gen.,  188.) 
Opinion  rendered  later  by  the  Attorney  General 
upon  same  question,  the  Comptroller  joining  in 
the  request  and  the  question  being  of  impor- 
tance.    (21  Op.  Atty.  Gen.,  224.) 

Where  Comptroller  does  not  join  in  re- 
quest.— Unless  the  Comptroller  joins  in  the 
request,  the  Attorney  General  has  hesitated  to 
express  an  opinion  even  as  to  questions  of  great 
importance,  or  of  general  application  to  all 
departments.  (26  Op.  Atty.  Gen.,  81,  citing  21 
Op.  Atty.  Gen.,  181.)  However,  where  the 
question  is  general  in  its  bearings,  and  of  great 
importance,  the  Attorney  General  may  prop- 
erly express  an  opinion  notwithstanding  the 
statutory  authority  of  the  Comptroller  of  the 
Treasury,  and  notwithstamling  the  fact  that  the 
question  comes  to  him  in  the  first  instance  and 
not  after  reference  to  the  Comptroller  and  by  his 
request.  (26  Op.  Atty.  Gen.,  81,  re  use  of  ap- 
propriation under  the  Secretary  of  War  for  the 
erection  of  marine  barracks  at  the  Canal  Zone. 
See  also  24  Op.  Atty.  Gen.,  699;  25  Op.  Atty. 
Gen.,  127.) 

Upon  request  of  the  Secretary  of  the  Navy 
the  Attorney  General  re-viewed  several  deci- 
sions rendered  by  the  Comptroller  of  the  Treas- 
ury concerning  the  leave  pay  of  officers  of  the 
construction  corps,  professors  of  mathematics, 


and  civil  engineers.  No  reference  was  made  in 
the  opinion  to  the  question  of  jurisdiction. 
(27  Op.  Atty.  Gen. ,  261 . )  [Before  referring  this 
question  to  the  Attorney  General,  the  Navy 
Department  suggested  to  the  Comptroller  that 
the  matter  be  submitted  to  the  Attorney  Gen- 
eral for  opinion,  in  order  thereby  to  obviate 
delay  and  expense,  both  to  the  Government  and 
the  officers  concerned,  that  would  result  from 
the  placing  of  the  matter  before  the  Court  of 
Claims  for  decision.  In  response  the  Comp- 
troller stated  that  he  preferred  that  the  Navy 
Department  use  its  own  judgment  relative  to 
the  submission  of  the  legal  question  involved 
to  the  Attorney  General,  and  that  the  Attorney 
General  determine,  without  suggestion  from 
him,  whether  he  would  entertain  such  submis- 
sion; but  added  that,  if  the  question  were  sub- 
mitted and  the  Attorney  General  rendered  an 
opinion  thereon,  such  opinion  would  be  treated 
with  that  respect  due  to  the  opinion  of  the  chief 
legal  adviser  of  the  Government.  This  state- 
ment of  the  Comptroller's  attitude  was  commu- 
nicated to  the  Attorney  General  in  the  Navy 
Department's  request  for  opinion.  (File 
262,54-1.55:e,  Dec.  15,  1908.)  The  Attorney 
General,  in  the  opinion  cited,  dissented  from 
the  decision  of  the  Comptroller  of  the  Treasury 
upon  the  questions  presented,  and  concurred  in 
the  views  of  the  Navy  Department  thereon. 
The  Comptroller  of  the  Treasury  thereupon  re- 
opened and  reversed  his  former  decision,  and 
followed  the  opinion  of  the  Attorney  General. 
(Comp.  Dec,  Apr.  16,  1909,  98  S.  &  A.  Memo., 
1036.)] 

Upon  request  of  the  Secretary  of  the  Navy 
the  Attorney  General  reviewed  and  reversed 
several  decisions  of  the  Comptroller  of  the 
Treasury  concerning  the  legality  of  a  Navy 
regulation,  although  the  Comptroller  declined 
to  concur  in  a  reference  of  the  matter  to  the 
Attorney  General,  holding  that  his  decisions 
were  final  and  conclusive  upon  the  executive 
branch  of  the  Government.  (Op.  Atty.  Gen., 
May  19,  1915,  171  S.  &  A.  Memo.,  3611;  21 
Comp.  Dec,  554,  357,  245;  file  26254-1451:11.) 

Upon  request  of  the  Secretary  of  the  Navy 
the  Attorney  General  reviewed  the  decision  of 
the  Comptroller  of  the  Treasury  that  the  des- 
ignation of  a  Navy  mail  clerk  was  not  valid, 
and  held  that  said  decision  of  the  Comptroller 
was  extraofficial  and  that  the  mail  clerk  in 
question  had  been  validly  designated  as  such. 
(31  Op.  Atty.  Gen.,  320.  "See  also  32  Op.  Atty. 
Gen.,  427  reviewing  and  dissenting  from  26 
Comp.  Dec,  3,36.) 

The  Comptroller  of  the  Treasury  held  that  the 
cost  of  transporting  certain  destitute  seamen  to 
this  country  was  a  proper  charge  against  the 
Government  (14  Comp.  Dec,  867),  and  sug- 
gested that  the  Attorney  General's  opinion  be 
requested  as  to  whether  the  owners  of  the  vessel 
to  wliich  such  seamen  belonged  should  refund 
to  the  Government  the  amount  so  expended. 
This  latter  question  was  referred  to  the  Attorney- 
General  with  request  for  his  opinion  upon  that 
specific  question.  However,  the  Attorney-Gen- 
eral, in  his  opinion,  considered  the  whole  sub- 
ject, and  held,  among  other  things,  that  "the 
cost  of  transportation  furnished  by  the  Govern- 
ment is  a  proper  charge  against  the  appropria- 


314 


Justice  Department. 


Ft.  2.  REVISED  STATUTES. 


Sec.  356. 


tion  for  '  relief  and  protection  of  American  Bea- 
men  in  foreign  countries,'  "  wliich  question  had 
already  been  decided  by  the  Comptroller.  (26 
Op.  Atty.  Gen. ,  631.  In  this  connection  see  29 
Op.  Atty.  Gen.,  54.) 

In  the  case  of  a  retired  officer  of  the  Navy,  the 
Comptroller  of  the  Treasury  held  that  under  the 
the  law  and  facts  of  the  case  he  was  entitled  to 
the  rank  and  retii-ed  pay  of  the  next  higher 
grade.  (14  Comp.  Dec,  167.)  In  the  case  of 
another  retired  officer,  invohing  precisely  the 
same  question,  the  Na^^  Department  requested 
an  opinion  of  the  Attorney  General,  who  held 
that  the  officer  in  question  was  not  entitled  to 
the  rank  and  retii-ed  pay  of  the  next  higher 
grade,  expressly  dissenting  from  the  Comp- 
troller's decision  above  cited  and  concurring  in 
the  opinion  of  the  Navy  Department.  [This 
question  was  referred  to  the  Attorney  General 
by  the  Secretary  of  the  Navy  without  the  sug- 
gestion or  concmrence  of  the  Comptroller.]  (27 
Op.  Atty.  Gen.,  221.)  The  Comptroller  of  the 
Treasury  reopened  and  reversed  his  former  deci- 
sion and  followed  the  opinion  of  the  Attorney 
General.     (15  Comp.  Dec,  584.) 

Where  the  Comptroller  has  passed  upon  the 
precise  question  submitted  ancf  does  not  request 
any  review  of  his  decision,  the  Attorney  General 
will  not  render  an  opinion  where  the  matter,  in 
his  judgment,  is  not  one  of  sufficient  impor- 
tance to  bring  it  witMn  the  class  of  cases  which, 
while  concerning  disbm-sements  of  money,  nev- 
ertheless, by  reason  of  their  great  importance  or 
general  character,  have  been  held  to  wai-rant  an 
expression  of  opinion  by  the  Attorney  General. 
(25  Op.  Atty,  Gen.,  614.)  In  such  a  case,  be- 
fore rendering  an  opinion,  the  Attorney  General 
requires  a  presentation  of  the  reasons  of  the  head 
of  the  department  for  ref en'ing  the  matter  to  him 
and  not  accepting  the  opinion  of  the  Comp- 
troller.    (26  Op.  Atty.  Gen.,  609.) 

In  no  case,  so  far  as  I  am  advised,  has  the 
Attorney  General  undertaken  to  review  a  mat- 
ter which  has  been  before  the  Comptroller  with- 
out being  advised  that  it  would  be  entirely 
agreeable  to  the  latter  to  do  so.  (28  Op.  Atty. 
Gen.,  129.     But  see  cases  noted  above.) 

Where  the  Comptroller  of  the  Treasury  has 
decided  the  question  (pay  of  a  retired  officer  of 
the  Army,  advanced  in  rank  by  the  Executive), 
his  decision  is  conclusive,  and  the  question  will 
not  be  answered  by  the  Attorney  General.  It 
is  true  that  an  exception  has  been  noted  in  the 
opinions  of  the  Attorneys  General,  where  a  ques- 
tion is  of  great  importance  and  general  applica- 
tion and  a  confUct  of  precedents  might  ensue, 
and  especially  where  the  Comptroller  joins  in 
the  request  and  states  that  he  will  be  guided  by 
the  opinion  of  the  Attorney  General.  But  here 
the  Comptroller  has  already  acted  and  has  ren- 
dered his  decision  upon  the  reference  to  him  of 
the  real  question  involved  in  its  practical 
aspect,  and  this  decision  under  the  law  must 
govern  him  in  determining  the  matter  when- 
ever it  is  presented  to  him  in  his  function  of 
passing  upon  accounts,  unless,  indeed,  he  him- 
self should  see  fit  to  reconsider  and  revise  or 
reverse  his  ruling.  (25  Op.  Atty.  Gen.,  185. 
But  see  cases  noted  above.) 

Questions  which  have  been  held  of  gen- 
eral and  great  importance. — Upon  a  ques- 
tion relating  to  the  purchase  of  envelopes  by 

54641°— 22 21 


executive  departments  in  cases  of  public 
exigency,  it  appeared  from  papers  transmitted 
to  the  Attorney  General  that  the  Comptroller 
of  the  Treasury  stated:  "As  the  question  in 
the  form  presented  is  a  general  one,  appUcable 
to  all  the  departments,  it  is  respectfully  sug- 
gested that  it  would  be  expedient  to  have  the 
matter  determined  by  an  opinion  from  the 
Attorney  General. "  Accordingly  the  Attorney 
General  rendered  an  opinion  upon  the  ques- 
tion, sajdng:  "This  case  falls  within  the  excep- 
tion stated  in  my  previous  opinion  (21  Op. 
Atty.  Gen.,  178)  concerning  matters  of  great 
importance,  and  I  therefore,  without  departing 
from  the  precedent  therein  established,  com- 
ply with  your  request."  (21  Op.  Atty.  Gen., 
181.) 

Availability  of  appropriation. — Respecting 
the  availability  for  census  purposes  of  the 
unexpended  balance  of  a  previous  appropria- 
tion, the  Attorney  General  rendered  an  opinion 
to  the  Secretary  of  the  Interior,  stating:  "This 
question  might  have  been  presented  to  the 
Comptroller  of  the  Treasmy,  under  the  act  of 
July  31,  1894,  section  8.  *  *  *  Upon  the 
passage  of  that  act  this  department  assumed 
the  position,  which  it  has  ever  since  main- 
tained, that  except  in  matters  of  great  im- 
portance, questions  of  the  character  referred  to 
therein  should  be  submitted  to  the  Comptroller, 
whose  opinion  is  binding  and  conclusive  and 
affords  complete  protection.  (21  Op.  Atty. 
Gen.,  178,  188,  530;  22  Op.  Atty.  Gen.,  413, 
581;  23  Op.  Atty.  Gen.,  1,  2,  86,  431,  468,  586; 
24  Op.  Atty.  Gen.,  85.)  The  present  question, 
however,  is  administrative  in  its  nature  and  of 
sufficient  importance  to  come  within  the  excep- 
tion stated .  Its  gravity  is  more  than  commen- 
surate with  that  of  the  question  considered  by 
Mr.  Olney  (who  fu'st  announced  the  rule 
referred  to)  in  his  opinion  of  May  23,  1895  (21 
Op.  AttJ^  Gen.,  181),  and  wliich  related  to  the 
power  of  the  several  executive  departments 
to  purchase  envelopes  in  cases  of  public  exi- 
gency. Upon  the  availability  of  the  balance 
referred  to  by  the  proviso  in  the  act  of  March  3, 
1903,  as  the  letter  of  the  director  indicates, 
depends  the  execution  of  a  great  deal  of  census 
work  now  in  progress  or  contemplation,  and 
the  retention  or  discharge  of  a  considerable 
portion  of  his  present  force."  (24  Op.  Atty. 
Gen.,  699.) 

Fay  of  employees  in  Fhilippines. — Concerning 
compensation  on  holidays  of  navy  yard  em- 
ployees in  the  Philippine  Islands,  the  Attorney 
General  rendered  an  opinion  to  the  Secretary 
of  the  Navy,  stating:  "This  question  might 
have  been  submitted  to  the  Comptroller  of  the 
Treasury',  but  in  view  of  the  importance  of 
determining  whether  or  not  such  statutes  apply 
in  the  Philippine  Islands,  I  shaU  endeavor  to 
answer  it."    (25  Op.  Atty.  Gen.,  127.) 

Validity  of  Navy  regulation. — In  rendering 
an  opinion  requested  by  the  Secretary  of  the 
Treasury  at  tlie  suggestion  of  the  Comptroller, 
concerning  refund  of  bounty  required  of 
enlisted  men  of  the  Navy  discharged  within  a 
year  after  enlistment,  for  disabiUty  noc  incurred 
in  the  Une  of  duty,  the  Attorney  General  said: 
"I  should  hesitate  to  render  you  my  opinion 
upon  this  subject,  in  view  of  the  well-estab- 
lished rule  holding  the  opinions  of  the  Comp- 


315 


Sec.  366. 


Pt.  2.  REVISED  STATUTES. 


Justice  Department. 


troller  of  tlie  Treaaurj',  upon  a  quoslion  involv- 
ing the  payment  of  money  by  any  executive 
department  of  the  Government  to  l)e  final 
and  conclusive,  were  it  not  for  tlie  fact  that 
the  present  ca.ie  is  unusually  important,  since 
it  involves  the  validity  of  the  regulations 
issued  by  the  head  of  an  executive  depart- 
ment and  therefore  appears  to  fall  ^vithin  the 
exception  to  tliat  rule  recognized  l)y  the 
Attorney  General  wlion  he  is  duly  asked  for 
his  opinion  before  the  Comptroller  has  passed 
upon  the  question,  and  the  Comptroller  himself 
joins  in  the  request."  (25 Op.  Atty.  CJen.,  271; 
BcealsoOp.  Atty. Gen.,  May  19, 1915, 171 S.  &  A. 
Memo.,  ;>611,  reviewing  and  reversing  decisions 
of  the  Comptroller  of  the  Treasury  as  to  the  val- 
idity of  a  Isavy  regulation,  although  the  Comp- 
troller declined  to  concur  with  the  Secretary  of 
the  Navy  in  the  submission  of  the  question  to 
the  Attorney  General.) 

Use  of  appro priution  for  construction  of 
marine  barracks  at  the  Canal  Zone  is  a  question 
of  general  and  great  importance,  upon  which 
the  Attorney  General  will  render  an  opinion 
notwitlistanding  the  fact  that  the  question 
comes  to  him  in  the  first  instance  and  not  after 
reference  to  the  comptroller  and  by  his  re- 
quest.    (26  Op.  Atty.  Gen.,  81.) 

Where  opirLion  is  requested  by  the  Presi- 
dent.— Upon  instructions  to  him  by  the  Presi- 
dent, the  Attorney  General  reviewed  two  deci- 
sions rendered  by  the  Comptroller  of  the  Treas- 
iiry  concerning  expenditures  from  appropria- 
tions for  the  Agricultural  Department,  and 
submitted  his  opinion  to  the  President  upon 
the  questions  of  law  discussed  therein.  (26  Op. 
Atty.  Gen.,  269.) 

Upon  reference  to  him  by  the  President,  the 
Attorney  General  rendered  an  opinion  upon  a 
question  raised  by  a  decision  of  the  Comptroller 
of  the  Treasury  as  to  authority  of  the  Secretary 
of  the  Treasury  to  purchase  land  from  the  State 
of  Texas  for  a  life-saving  station  and  to  pay  the 
consideration  fixed  therefor  (29  Op.  Atty. 
Gen.,  48);  and  later,  in  the  same  case,  the 
Attorney  General  addressed  a  supplementary 
opinion  to  the  President  as  to  the  appropriation 
available  for  payment  for  the  land  so  acquired. 
(29  Op.  Atty.  Gen.,  51.) 

Opinion  rendered  to  the  President  concern- 
ing his  authority  to  allot  funds  appropriated  by 
Congress  for  the  purpose  of  equipping  and 
building  schoolhouses  in  the  island  of  Porto 
Rico.     (23  Op.  Atty.  Gen.,  329.) 

That  Commissioner  of  Labor  could  be  ap- 
pointed a  member  of  the  immigration  comnus- 
sion  and  receive  compensation  for  his  services 
on  that  commission,  in  addition  to  the  salary 
attached  to  his  office  as  Commissioner  of  Labor. 
(26  Op.  Atty.  Gen.,  247.) 

Authority  to  grant  leave  of  absence  with  pay 
to  members  of  the  Grand  Army  of  the  Republic 
in  Government  service  who  attend  annual  en- 
campment of  that  order.  (26  Op.  Atty.  Gen., 
336.) 

That  a  retired  officer  of  the  Revenue-Cutter 
Service  could  be  employed  to  superintend  the 
construction  of  life-sa\dng  apparatus  for  such 
period  as  his  services  might  be  required,  at  a 
rate  of  compensation  to  be  fixed  by  the  Secre- 
tary of  the  Treasury.     (26  Op.  Atty.  Gen.,  460.) 

Use  of  appropriations  to  pay  contractors  for 


material  to  be  used  in  constructing  a  public 
building.     (26  Op.  Atty.  Gen.,  572.) 

That  the  Secretary  of  the  Navy  has  no  power, 
after  exhausting  an  appropriation  for  the  erec- 
tion of  a  dry  dock,  to  use  funds  from  other 
appropriations  not  strictly  applicable  to  that 
work  in  order  to  meet  the  payments  to  be 
made  on  the  contract  until  a  deficiency  appro- 
priation should  be  made.  (28  Op.  Atty.  Gen., 
466.) 

Specific  questions  answered  by  the  At- 
torney General  without  reference  to 
Comptroller's  jurisdiction. — in  the  follow- 
ing specific  cases  the  Attorney  General  ren- 
dered opinions  without  making  any  reference 
to  the  question  of  jiu^isdiction: 

Payment  of  damages. — That  the  Secretary  of 
War  is  authorized  to  pay  $15,000,  as  recom- 
mended by  a  commission  and  the  Chief  of  En- 
gineers, for  raising  the  height  of  the  dam  at 
Great  Falls  and  for  damages  on  account  of  the 
flooding  of  land  and  other  damages.  (21  Op. 
Atty.  Gen.,  223.) 

Use  of  appropriation  for  reimbursement  of 
militia  for  stores  taken  in  war  with  Spain.  (22 
Op.  Atty.  Gen.,  372.) 

Use  of  approi^riation  by  Secretary  of  War  for 

Eayment  of  compensation  to  parties  after  a 
reach  of  contract  by  the  Secretary.  (22  Op. 
Atty.  Gen.,  437.) 

Payment  of  money  to  contractors  for  damages 
sustained  by  delay.     (23  Op.  Atty.  Gen.,  106.) 

Use  of  appropriations. — Concerning  the  use  of 
an  apjiropriation  for  expenses  of  the  Agricul- 
tural Department.  (21  Op.  Attv.  Gen.,  321; 
21  Op.  Atty.  Gen.,  372;  22  Op.  Atty.  Gen.,  470.) 

Use  of  appropriations,  and  to  what  appropri- 
ation certain  expenses  are  chargeable.  (21  Op. 
Atty.  Gen.,  414.) 

Construction  of  an  appropriation;  whether 
language  mandatory  or  directory.  (22  Op. 
Atty.  Gen.,  295.) 

Expenditure  of  $3,000,000  appropriation  for 
emergencies  arising  in  military  administration 
of  Cuba.     (22  Op.  Atty.  Gen.,  301.) 

Use  of  appropriation  for  rivers  and  harbors. 
(22  Op.  Atty.  Gen.,  489;  22  Op.  Attv.  Gen.,  519; 
25  Op.  Atty.  Gen.,  145;  29  Op.  Atty.  Gen.,  173.) 

Use  of  an  appropriation  under  the  Secretary 
of  State  and  its  availability  for  paying  expenses 
or  compensation  of  counsel  for  the  delegation  to 
the  Pan-American  conference.  Question  was, 
first,  as  to  legality  of  appointing  counsel;  and 
second,  as  to  question  of  pay.  (23  Op.  Atty. 
Gen.,  533.) 

Ojiinion  to  Secretary  of  State  which  "relates 
wholly  to  the  legality  of  the  expenditures 
recommended" — that  is,  certain  expenditures 
out  of  an  a])propriation  made  in  connection  with 
the  Panama  Canal  project.  (25  Op.  Atty.  Gen., 
54.) 

Advised  Secretary  of  War  that  he  was  au- 
thorized to  enter  into  a  contract  for  the  payment 
of  royalty  on  account  of  the  construction  of  cer- 
tain guns,  carriages,  etc.,  payable  out  of  appro- 
priations "for  the  armament  of  fortifications 
and  for  other  purposes;"  notwithstanding  the 
fact  that  the  fulfillment  of  such  contract  might 
extend  over  a  period  of  more  than  two  years. 
(25  Op.  Atty.  Glen.,  105.) 

That  appropriation  for  purchase  of  land  may 
properly  be  expended  for  the  purchase  of  a 


316 


Justice  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  356. 


lease  in  perpetuity  to  said  land.     (26  Op.  Atty. 
Gen.,  12.) 

That  Secretary  of  the  Treasury  is  authorized 
to  acquire  a  certain  site  and  erect  a  public 
building  thereon,  at  total  cost  of  §125,000;  that 
the  Secretary  is  not  limited  as  to  the  cost  of  the 
Bite,  but  a  sufficient  amount  should  be  reserved 
to  properly  erect  the  building.  (26  Op.  Atty. 
Gen.,  20.) 

.  Opinion  to  Secretary  of  the  Navy  in  answer  to 
following  questions:  (1)  ^\^lether,  upon  the 
facts  presented,  the  Navy  Department  is  au- 
thorized to  expend  any  portion  of  the  moneys 
appropriated  by  the  acts  in  question  for  the 
construction  or  purchase  of  a  submarine  boat 
or  boats  of  the  Lake  type;  (2)  whether  under 
the  facts  as  stated  the  Secretary  of  the  Navy  is 
authorized  to  expend  any  portion  of  the  appro- 
priations referred  to,  for  the  purchase  of  sub- 
surface boats  of  the  type  subjected  to  trial,  as 
above  set  forth.     (26  Op.  Atty.  Gen.,  321.) 

Appropriation  available  for  payment  of  ex- 
pense of  maintenance  and  treatment  of  an  in- 
mate of  the  National  Soldiers'  Home  who  is 
transferred  to  the  Government  Hospital  for  the 
Insane.     (26  Op.  Atty.  Gen.,  512.) 

That  Secretary  of  the  Navy  has  authority  to 
acquire  and  pay  for  the  right  to  manufacture 
and  install  patented  forms  of  turbine  machinery 
on  board  a  ship  under  construction,  and  this 
authority  extends  to  the  license  fee,  royalties, 
and  preparation  of  drawings.  (27  Op.  Atty. 
Gen.,  173.) 

Use  of  appropriation  to  defray  expenses  of  a 
board  under  the  Secretary  of  War.  (27  Op. 
Atty.  Gen.,  459.) 

Use  of  Naval  Hospital  fund  to  supplement 
appropriation  for  construction  of  hospital  at 
Norfolk,  A'a.     (27  Op.  A,tty.  Gen.,  30.) 

That  moneys  appropriated  for  the  mainte- 
nance of  the  Bureau  of  Mines  may  be  used  for 
erection  of  certain  temporary  structures.  (28 
Op.  Atty.  Gen.,  413.) 

Use  of  appropriation  for  construction  of  bat- 
tleship, where  not  sufficient  for  completion  of 
the  vessel.     (28  Op.  Atty.  Gen.,  477.) 

Use  of  naval  appropriation  for  purchases 
from  combinations  or  monopolies.  (29  Op. 
Atty.  Gen.,  14,  35,  44.) 

That  in  absence  of  statutory  prohibition, 
partial  payments  may  be  made  on  account  of 
work  done  in  construction  of  vessels  for  the 
Navy.     (29  Op.  Atty.  Gen.,  46.) 

Use  of  appropriation  under  Secretary  of  War 
for  purchase  and  partial  construction  of  canal 
and  locks,  where  not  sufficient  for  total  cost. 
(29  Op.  Atty.  Gen.,  236.) 

Use  of  appropriation  by  the  Secretary  of  the 
Treasury  for  rental  of  building  in  District  of 
Columbia  and  construction  of  vault.  (27  Op. 
Atty.  Gen.,  270.) 

Pay  of  Army,  Navy,  etc. — Stoppage  of  pay 
against  the  account  of  soldier  in  Army.  (21  Op. 
Atty.  Gen.,  323.) 

That  the  Secretary  of  the  Navy  is  authorized 
to  employ  a  retired  officer  to  supervise  the  com- 
pletion of  certain  tables  of  planets,  at  a  com- 
pensation of  $2,500  per  annum.  (21  Op.  Atty. 
Gen..  507.) 

Concerning  extra  pay  of  Army  officers.  (22 
Op.  Atty.  Gen.,  95.) 


That  a  proposed  regulation  of  the  State  De- 
partment, A\dth  reference  to  the  compensation 
of  consular  agents,  being  consistent  %vith  law, 
may  be  carried  into  effect.  (22  Op.  Attv.  Gen. , 
16.30 

Extra  compensation  of  a  United  States  judge 
appointed  as  a  commissioner  under  a  conven- 
tion with  Great  Britain.  (22  Op.  Atty.  Gen., 
184.) 

Increased  pav  and  allowances  of  Army  offi- 
cers.    (22  Op.  Atty.  Gen.,  2.58.) 

Compensation  of  per  diem  employees  at 
Washington  navy  yard  for  half  day  when  yard 
was  closed  on  account  of  ceremonies  attending 
the  interment  of  the  bodies  of  soldiers  and 
sailors  whose  lives  were  lost  in  the  war  with 
Spain.     (22  Op.  Atty.  Gen..  472.) 

Date  from  which  officer  of  Navy"  is  entitled 
to  rank  and  pav  of  higher  grade  on  promotion. 
(22  Op.  Atty.  Gen.,  657.) 

Rank  and  pay  of  retired  officers  of  the  Marine 
Corps  having  Civil  War  service.  (24  Op.  Atty. 
Gen.,  709.) 

Pay  of  a  retired  officer  of  the  Navy.  "He 
now  claims  that  he  is  entitled  to  the  additional 
pay  pro\'ided  in  the  proAdsion  before  quoted, 
and  your  question  is  in  substance  whether  he 
is  so  entitled.  *  *  *  I  am,  therefore,  of 
opinion  *  *  *  that  he  is  entitled  to  the 
increased  pay  provided  for  in  said  act."  (26 
Op.  Atty.  Gen.,  57.) 

That  the  salary  of  a  clerk  in  a  pension  agency 
might  legally  be  paid,  and  need  not  be  with- 
held by  the  Secretary  of  the  Interior  because 
of  his  indebtedness  to  the  United  States;  and 
that  section  1766,  Revised  Statutes,  is  not  appli- 
cable to  such  clerk.     (26  Op.  Atty.  Gen.,  77.) 

That  the  salary  of  a  naval  officer  appointed 
during  a  recess  of  the  Senate  can  not  be  paid 
until  confirmed  by  the  Senate,  where  the  va- 
cancy existed  while  the  Senate  was  in  session. 
(26  Op.  Atty.  Gen..  2.34.) 

Rank  and  pay  of  retired  officers  of  the  Navy 
having  Civil  War  service.  (27  Op.  Attv.  Gen., 
221.) 

Compensation  of  certain  officers  employed 
under  the  Department  of  Agriculture.  (27 
Op.  Atty.  Gen.,  358.) 

Payment  of  compensation  and  expenses  of 
board  on  life-saving  appliances.  (27  Op. 
Atty.  Gen.,  406.) 

Compensation  and  expenses  of  a  committee 
under  the  Secretary  of  War.  (27  Op.  Atty. 
Gen.,  432,  437.) 

Leave  of  absence  of  per  diem  employees 
under  the  Secretary  of  War.  (27  Op.  Atty. 
Gen.,  613.) 

Payment  of  compensation  to  expert  witness 
employed  by  the  Government  in  cases  arising 
under  the  food  and  drugs  act.  (28  Op.  Atty. 
Gen.,  75.) 

Leave  of  absence  to  certain  employees  under 
the  War  Department.  (28  Op.  Attv.  Gen., 
339.) 

Pay  of  chief  of  bureau,  Navy  Department, 
after  resignation  or  removal  from  office.  (28 
Op.  Atty.  Gen.,  429.) 

Rank  and  pay  of  naval  officers  serving  as 
bureau  chiefs.     (28  Op.  Atty.  Gen.,  531.) 

Payment  of  miscellaneous  claims. — Claim  for 
arrears  in  pension.  (21  Op.  Atty.  Gen.,  408; 
21  Op.  Atty.  Gen.,  453.) 


317 


Sec.  356. 


Pt.  ,i.  REVISED  STATUTES. 


Justice  Department. 


That  unexpondod  balance  of  an  a])propria- 
tion  should  be  used  to  reimburse  a  claimant 
against  the  United  States.  (21  Op.  Atty.  Gen., 
523.) 

Claims  of  officers  and  men  in  the  Navy  for 
payment  of  prize  money.  (22  Op.  Atty.  Gen., 
17i.) 

Leirality  of  bills  submitted  to  the  Secretary 
of  ^\'ar  for  State  tolls  on  property  of  the  United 
States  passing  to  or  over  the  wharves  at  San 
Francisco.     (23  Op.  Atty.  Gen.,  299.) 

Whether  Navy  Department  may  rightfully 
withhold  its  apjiroval  of  vouchers  providing  for 

1)ayinent  of  a  bill  j)resented  to  that  department 
)y  the  Carnegie  Steel  Co.  until  decision  of  a 
suit  pending  in  the  Court  of  Claims.  (23  Op. 
Attv.  Gen.,  422;  affirmed  23  Op.  Atty.  Gen., 
495!) 

Authority  of  Secretary  of  the  Treasury  to 
pay  claim  of  a  municipal  corporation  for  reim- 
bursement on  account  of  burial  expenses  of  a 
pensioner  from  accrued  pension.  (23  Op.  Atty. 
Gen..  428.) 

\'alidity  of  claim  made  for  rent  of  a  building 
occupied  as  a  post  office.  (23  Op.  Atty.  Gen., 
571.) 

Authority  of  Secretary  of  the  Treasury  to 
allow  claim  for  compensation  as  informer. 
Held  that  the  Treasury  Department  is  author- 
ized to  award  compensation  in  the  case  sub- 
mitted.    (24  Op.  Atty.  Gen.,  61.) 

Use  of  an  appropriation  for  payment  of  attor- 
neys' claims  for  fees  on  account  of  services 
rendered  to  Indians.  (24  Op.  Atty.  Gen.,  624; 
25  Op.  Atty.  Gen.,  308;  25  Op.  Atty.  Gen.,  320.) 

Distribution  of  fund  appropriated  for  the 
payment  of  the  so-called  "loyal  Creek  claims" 
in  cases  of  deceased  claimants.  (25  Op.  Atty. 
Gen.,  163.) 

Payment  of  claim  of  Government  employee 
for  compensation  on  account  of  disability  sus- 
tained in  the  course  of  his  employment.  (27 
Op.  Atty.  Gen.,  346.) 

Settlement  of  claim  on  Secretary  of  the 
Treasury,  made  by  an  officer  of  the  Government 
for  an  award  for  detecting  fraudulent  weighing 
of  sugars.     (28  Op.  Atty.  Gen.,  329.) 

Use  of  appropriations  for  payment  of  claims 
of  a  wrecking  company  in  connection  with  the 
removal  of  an  obstruction  to  navigation.  (28 
Op.  Atty.  Gen.,  626,  633.) 

^liether  the  claim  of  a  wrecking  company 
against  the  Government  for  services  in  removing 
an  obstruction  to  navigation,  which  claim  was 
pending  before  the  War  Department,  could  be 
paid.  Answered  in  the  affirmative,  but  held 
that  interest  could  not  be  paid.  (29  Op.  Atty. 
Gen.,  277.) 

Payment  of  claim  for  compensation  on 
account  of  a  fatal  accident  to  a  laborer  employed 
by  the  United  States.  (29  Op.  Atty.  Gen., 
415.) 

Refund  of  duties,  taxes,  etc. — Authority  of 
Secretary  of  the  Treasury  to  refund  duties  out  of 
an  appropriation  for  that  purpose.  (23  (Jp.  Attv. 
Gen..  442;  21  Op.  Atty.  Gen.,  454.  Claims  for 
refund  of  taxes.     26  Op.  Atty.  Gen.,  472.) 

Payment  of  claims  for  refund  of  moneys  col- 
lecteli  by  the  United  States  for  taxes.  Ques- 
tion submitted  by  the  Secretary  of  the  Treasury, 
"is  there  any  legal  objection  to  now  paying  that 
part  of  the  claim  of    *    *    *    which  comes 


under  the  decision  of  the  Supreme  Court  in  the 
*  *  *  case,  allowing  the  balance  to  remain 
in  the  Treasury  pending  the  decision  of  the 
court  in  the  *  *  *  case?"  Answered  in 
the  negative.     (26  Op.  Atty.  Gen.,  194.) 

Miscellanpous . — -Making  of  final  paj'ment  to  a 
contractor  by  the  Secretary  of  War  under  a  cer- 
tain contract.     (22  Op.  Atty.  Gen.,  465.) 

Payment  from  the  naval  pension  fund  to 
personal  representatives  of  a  deceased  bene- 
ficiary or  to  the  Naval  Home.  (25  Op.  Atty. 
Gen.,  85.) 

Authority  of  Director  of  the  Mint,  with 
aj)proval  of  the  Secretary  of  the  Treasury,  to 
purchase  bullion  for  subsidiary  coinage  without 
limitation.     (25  Op.  Atty.  Gen.,  170.) 

(D)  Effect  of  Attorney  Generals  opinion. 

Binding  on  Comptroller. — Without  touch- 
ing upon  the  question  whether  a  Comptroller  of 
the  Treasury  may  delegate  his  authority,  when 
he  waives  his  right  to  determine  a  matter  in- 
volving disbursements,  within  the  scope  of  his 
authority  under  the  law  and  regulations,  or 
suggests  a  ruling  by  the  Attorney  General, 
there  is  no  doubt  that  the  Attorney  General's 
opinion  should  not  only  be  justly  persuasive  to 
the  accounting  officers,  but  should  be  con- 
trolling; and  should  be  followed  by  them 
unless  contrary  to  some  authoritative  judicial 
decision  which  puts  the  matter  at  rest.  It  is 
always  to  be  assumed  that  the  Attorney  General 
would  not  overlook  or  ignore  such  a  decision 
in  announcing  his  own  conclusion.  (25  Op. 
Atty.  Gen.,  301.) 

Of  course  the  opinion  of  the  Attorney  General 
when  rendered  in  a  proper  case — as  must  be  the 
presumption  always  from  the  fact  that  it  is 
rendered — ^^must  be  controlling  and  conclusi^=e, 
establishing  a  rule  for  the  guidance  of  other 
officers  of  the  Government,  and  must  not  be 
treated  as  nugatory  and  ineffective.  (25  Op. 
Attv.  Gen.,  301,  citing  20  Op.  Atty.  Gen.,  648; 
9  Op.  Atty.  Gen.,  37,  7  Up.  Atty.  Gen.,  699, 
6  Op.  Atty.  Gen.,  334,  5  Op.  Atty.  Gen.,  97.) 

Where  the  question  is  general  and  important 
in  other  directions  than  disbursements,  and  is 
presented  to  the  Attorney  General  in  accord- 
ance Avith  law — that  is,  if  it  is  submitted  by  the 
President  or  the  head  of  a  department;  if  it 
is  a  question  of  law  and  actually  arises  in  the 
administration  of  a  department;  and  the  At- 
torney General  conceives  that  it  is  proper  for 
him  to  deliver  his  opinion,  it  is  final  and 
authoritative  under  the  law,  and  should  be  so 
treated  by  the  accounting  officers,  even  if  the 
question  involves  a  payment  to  be  made. 
(25  Op.  Atty.  Gen.,  301.) 

If  the  Attorney  General  considers  the  ques- 
tion presented  one  of  great  importance  in  other 
directions  than  disbursements,  and  especially 
when  the  Comptroller  suggests  an  examination 
of  the  matter  by  him,  an  oi)inion  on  liis  part 
will  be  proper  and  the  decision  final  and 
authoritative.     (25  Op.  Atty.  Gen.,  601.) 

W^here  an  opinion  was  rendered  by  the  At- 
torney General  upon  a  question  which  was  after- 
wards considered  and  otherwise  decided  by  the 
Comptroller  of  the  Treasury,  it  was  held  by  the 
Supreme  Court  that  any  doubt  which  the  Au- 
ditor might  have  had  should  have  been  sub- 


318 


Justice  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  356. 


ordinated  to  the  ruling  of  the  Attorney  General; 
affii-ming  the  decision  of  the  lower  court  in 
which  there  was  quo  Led  with  approval  the  At- 
torney General's  opinion  of  September  8,  1893, 
to  the  Secretary  of  the  Treasury  (20  Op.  Atty. 
Gen.  659),  digested  above  under  "V.  Weight  of 
Opinions"  (Smiths.  Jackson,  246  U.  S.,  388, 
241  Fed.  Rep.,  747;  C.  M.  O.  50,  1918,  p.  20.) 

(E)    Views  of  Comptroller  of  the  Treasury  as  to 
jurisdiction. 

Test  is  whether  main  question  involved, 
is  one  of  payment. — The  question  was  sub- 
mitted to  the  Comptroller  of  the  Treasury 
whether  the  Interstate  Commerce  Commis- 
sion is  authorized  to  purchase  furniture  and 
office  equipment  from  dealers  not  parties  to  the 
common  supply  contract.  This  question  had 
previously  been  passed  upon  by  the  Attorney 
General  in  an  opinion  rendered  to  the  President 
under  section  354,  Revised  Statutes.  ('Op.  Atty. 
Gen.,  Feb.  27, 1913.)  The  Comptroller  held  that 
the  question  was  one  for  him  to  decide,  under 
the  act  of  JulySl,  1894(28Stat.,  208), saying:  "I 
have  no  discretion  in  the  matter  and  must  ren- 
der a  decision,  and  such  decision  as  my  con- 
science dictates,  notwithstanding  this  opinion 
by  the  Attorney  General."  Upon  the  general 
subject  of  jurisdiction  in  such  cases,  the  Comp- 
troller said: 

"If  there  is  sometimes  conflict  of  jurisdiction 
between  the  Attorney  General  and  the  Comp- 
troller of  the  Treasury,  it  is  by  reason  of  the  dif- 
ferent constructions  which  are  given  these  two 
provisions  of  the  statutes.  I  have  never  1  irought 
myself  to  the  \iew  that  my  jurisdiction  de- 
pended upon  the  magnitiide  of  the  question 
submitted.  I  have  always  thought  that  the 
primary  question  to  be  determined  was, 
whether  the  main  question  involved  the  pay- 
ment of  money  out  of  an  appropriation,  and  if 
so  the  jurisdiction  was  with  the  Comptroller;  if, 
on  the  contrary,  the  main  question  was  the 
authority  of  the  President,  the  head  of  an 
executive  department,  or  other  Government 
official  to  perform  a  certain  act  regardless  of 
the  use  of  an  appropriation,  then  the  jurisdic- 
tion is  with  the  Attorney  General. 

"If  the  President  or  the  Secretary  of  the 
Treasury  had  in  this  case  sulimitted  the  ques- 
tion whether  he,  the  Secretary,  was  authorized 
to  schedule  and  contract  for,  under  the  act  of 
June  17,  1910  (36  Stat.,  468,  531),  such  articles 
as  desks,  tables,  or  sectional  filing  cases  to  be 
used  by  the  Interstate  Commerce  Commission, 
and  the  Attorney  General  upon  such  request 
had  rendered  the  opinion  he  has  rendered,  I 
have  no  doubt  that  the  Secretary  of  the  Treas- 
ury would  have  acquiesced  in  such  opinion, 
and  not  scheduled  and  contracted  for  such 
articles.  Under  such  circumstances,  I  would 
have  felt  myself  morally  boxind  to  follow  the 
opinion  of  the  Attorney  General,  notwithstand- 
ing my  own  personal  views  as  to  its  correctness. 
But  the  Secretary  of  the  Treasury  has,  and  had 
before  the  date  of  the  opinion  of  the  Attorney 
General,  scheduled  and  contracted  for  such  arti- 
cles under  the  said  act    *    *    * 

"The  articles  here  in  question  are  purchased 
on  a  considerable  scale,  and  used  alike  by  all 
departments  of  the  GoAornment    *    *    *      I 


am  unable  to  agree  with  the  Attorney  General 
in  his  narrow  and  nonbeneficial  construction 
of  this  law." 

This  decision  of  the  Comptroller  of  the  Treas- 
ury, under  date  of  March  31,  1913,  was  pub- 
lished with  the  following  note:  "The  above 
decision  was  prepared  on  the  12tli  day  of  March, 
1913,  but  withheld  pending  the  action  of  the 
Attorney  General  on  a  submission  by  the  Secre- 
tary of  the  Treasury  relative  to  a  reconsidera- 
tion of  the  opinion  of  February  27,  1913,  the 
one  mentioned  in  the  submission  to  tliis  office 
and  referred  to  in  the  above  decision.  Said 
sul)mission  resulted  in  a  withdrawal  of  the 
opinion,  supra,  of  the  Attorney  General,  under 
date  of  March  26,  1913,  in  which  he  held  that 
the  question  involved  in  said  withdrawn  opin- 
ion was  one  involving  a  payment  by  the  head 
of  a  Government  establishment,  and  hence  for 
the  Comptroller  of  the  Treasury  to  decide." 
(19  Comp.  Dec,  617.  But  see  above,  VI  (A) 
"Attorney  General's  jurisdiction  not  curtailed 
by  the  powers  given  Comptroller;  and  VI  (C), 
"  When  Attorney  General  will  render  an  opin- 
ion.") 

Will  not  concur  in  referring  question 
of  law  to  Attorney  General. — ' '  With  refer- 
ence to  your  further  suggestion  that  I  concur 
in  a  submission  of  the  question  with  reference 
to  the  validity  of  this  regulation  to  the  Attor- 
ney General,  permit  me  to  say  that  I  can  see 
no  propriety  in  or  reason  for  my  so  doing.  The 
law  has  cast  upon  the  Comptroller  of  the  Treas- 
ury the  duty  not  only  of  deciding  upon  the 
facts  but  also  of  construing  the  law  in  con- 
nection with  the  settlement  of  the  public 
accounts  and  particularly  those  accounts  that 
involve  the  expenditure  of  public  moneys. " 
(21  Comp.  Dec,  554,  560.  But  see  cases  noted 
above,  in  which  Comptroller  of  the  Treasury 
has  acquiesced  in  the  submission  to  the  Attor- 
ney General  by  the  head  of  a  department  of 
questions  involving  payments;  and  has,  in  a 
number  of  instances,  himself  suggested  such 
reference.) 

The  Comptroller  of  the  Treasury  is  not 
authorized  to  render  an  advance  decision  upon 
a  question  not  involving  a  payment  to  be  made 
by  or  under  the  officer  requesting  the  opinion. 
It  is  one  of  the  functions  of  the  Attorney  Gen- 
eral to  give  his  opinion  at  the  request  of  a  head 
of  a  department  upon  cjuestions  of  law  arising 
in  the  administration  of  his  department;  which 
is  to  be  distinguished  from  the  duty  of  the 
Comptroller  of  the  Treasury  to  render  decisions 
upon  questions  involving  payments,  which 
decisions  govern  the  settlement  of  accounts 
therefor.  (10  Comp.  Dec,  812.)  (The  ques- 
tion in  this  case  was  whether  the  chief  clerk 
of  the  Railway  Mail  Service  is  competent  to 
administer  the  oath  of  office  to  appointees.) 

Where  the  disl^ursement  of  an  appropriation 
was  under  the  charge  of  the  Secretary  of  the 
Interior,  and  the  question  arose  whether  under 
said  appropriation  the  Secretary  of  the  Interior 
had  authority  to  authorize  the  United  States 
attorney  to  employ  witnesses  and  incur  costs 
contemplated  by  liim  in  connection  with  cer- 
tain condemnation  proceedings,  the  comp- 
troller stated  that  in  his  opinion  "all  such  ex- 
penses should  be  ordered  and  approved  by  the 
Attorney  General  and  paid  from  an  appropria- 


319 


Sec.  366. 


Pt.2.  REVISED  STATUTES. 


Justice  Department. 


tion  under  the  Department  of  Justice;"  but  that 
the  question  presented  'appears  to  be  cue  of 
administration."  wliich  the  Seiretary  of  the 
Interior,  if  he  so  desired .  nii^dit  sul  imit  to  the  At- 
torney Cieneral  for  an  ad  visory  opinion  under  sec- 
tion 1")(),  Revised  Statutes.  "(9  Comp.  Dec,  793; 
see  also  9  Comp.  Dec,  446,  451.) 

Wliere  the  (piestion  submitted  is  one  as  to 
the  h'uality  of  a  pro])osed  payment  for  certain 
buiUlinv'S  and  outlit,  lait  back  of  the  question 
of  the  expenditure  of  the  money  is  that  of  the 
acciuisition  of  tlie  site,  tliis  involves  questions 
of  law  unconnected  with  any  expenditure  of 

guldic  money,  and  hence  not  within  the 
omptroller's  jurisdiction.  Therefore  suggested 
tJiat  the  opinion  of  the  Attorney  General  should 
be  ol)tained  upon  the  primary  question  in- 
volved in  the  acquisition  of  the  site.  (5 
Comp.  Dec,  682;  see  also  3  Comp.  Dec,  730.) 

VII.    MiSCELLAXEOUS. 

The  Attorney  General  will  not  review 
the  opinion  of  a  former  Attorney  General 
unless  a  prnper  case  is  presented  therefor  and 
submitted  by  the  head  of  a  department.  (11 
Op.  Atty.  Gen.,  189.) 

A  question  once  definitely  answered  by  the 
Attorney  General  and  left  at  rest  for  a  long 
term  of  years  should  be  reconsidered  by  one  of 
his  successors  only  in  a  very  exceptional  case. 
(21  Op.  Attv.  Gen.,  24;  affirmed  24  Op.  Atty. 
Gen.,  53;  24 'Op.  Atty. Gen.  127, 132;  compare  27 
Op.  Attv.  Gen. 212,  215.  See  also  17  Op.  Atty. 
Gen.  193.) 

The  conclusions  of  a  Federal  coirrt  are 
binding  upon  the  Attorney  General  until 
reversed  l>y  a  higher  court.  (24  Op.  Atty. 
Gen.,  59.)  [The  Attorney  General  has  not  al- 
ways followed  decisions  of  the  Court  of  Claims. 
Thus,  the  Court  of  Claims  held  that  a  vacancy 
occurring  while  the  Senate  was  temporarily 
adjourned  was  legally  filled  by  the  President 
as  a  "recess"  appointment.  (Gould  v.  U.  S., 
19  Ct.  Cls.,  593,  595.)  Thereafter  the  Attorney 
General,  with  knowledge  of  this  decision,  ad- 
vised the  President  that  a  vacancy  occurring 
during  a  temporary  adjournment  could  not  be 
filled  by  him  as  a  ''recess''  appointment.  (23 
Op.  Atty.  Gen.,  599;  but  see  33  Op.  Atty. 
Gen..  20.)  Also  in  29  Op.  Atty.  Gen.,  397, 
407,  the  Attorney  General  cjuoted  from  the 
decision  of  the  Court  of  Claims  in  Geddes  v. 
U.  S..  38  Ct.  Cls.,  428,  445,  and  then  said: 
"This  reascming,  as  the  minority  hold,  is  in 
direct  conflict  with  that  of  United  States  v. 
Tyler,  supra,  and  can  not  be  accepted  as  a 
correct  statement  of  the  law."  It  will  be  noted 
that  here  the  Attorney  General  declmed  to 
accept  the  "reasoning"  and  not  the  conclu- 
sions of  the  Court  of  Claims.] 

The  Attorney  General's  opinions  should  be 
followed  unless  contrary  to  some  authoritative 
judicial  decision  which  puts  the  matter  at  rest. 
(25  Op.  Atty.  Gen.,  301.) 

The  opinions  of  the  Attorney  General  should 
be  regarded  by  the  heads  of  departments  as  law 
until  wathdrawn  bv  him  or  overruled  by  the 
courts.  (20  Op.  Atty.  Gen.,  654,  659;  20  Op. 
Atty.  Gen.,  719,  722.) 

Reasons  for  declining  to  render  opinions 
except  when  required  by  law. — The  Attor- 
ney General  has  no  right  to  give  an  official  opin- 


ion except  in  those  cases  in  which  it  is  required 
of  him  by  law.     (6  Op.  Atty.  Gen.,  24.) 

To  step  beyond  the  circle  of  his  duties  as 
defined  by  law  would  in  itself  be  a  violation  of 
law,  independentiv  of  other  relations  of  the 
subject.     (6  Op.  Atty.  Gen.,  25.) 

I  should  consider  myself  as  transcending  the 
limits  of  my  commiasion  in  a  very  unjustifiable 
manner  in  attempting  to  attach  the  weight  of 
my  ojjice  to  any  opinion  not  authorized  by  the 
law  which  prescribes  my  duties.  (1  Op.  Atty 
Gen.,  211.) 

The  Attorney  General  is  sworn  to  discharge 
the  duties  of  his  oflice  according  to  law.  To  be 
instrumental  in  enlarging  the  sphere  of  his 
official  diitios  beyond  that  which  is  prescribed 
by  law  would,  in  my  opinion,  be  a  \aolation  of 
his  oath.  It  would  be  incalculably  dangerous 
to  permit  an  officer  to  act,  under  color  of  his 
office,  beyond  the  pale  of  the  law.  The  pre- 
cedent would  not  be  the  less  dangerous  on  ac- 
count of  the  purity  of  motives  in  which  it 
originated.     (1  Op.  Atty.  Gen.,  335.) 

The  Attorney  General  should  not  feel  at  lib- 
erty to  augment  the  duties  of  his  office,  already 
sufficiently  laborious,  by  setting  a  precedent 
by  the  voluntary  assumption  of  others  which 
do  not  belong  to  the  office.  (1  Op.  Atty.  Gen., 
608,  609.) 

Is  very  imwilling  to  create  a  precedent  which 
shall  incumber  his  burdensome  office  with  du- 
ties foreign  to  it.  (1  Op.  Atty.  Gen.,  608,  613.) 
•  His  opinion  would  not  only  be  gratuitous,  but 
unauthorized.     (2  Op.  Atty.  Gen.,  311.) 

Nor  will  the  Attorney  General  render  an  un- 
official opinion  in  such  a  case,  even  as  an  indi- 
vidual, ])ecause  in  the  relation  he  stands  to  the 
Government  an  opinion  from  him  might  be 
looked  upon  as  an  official  one,  and  thus  connect 
the  Government  with  an  individual  contro- 
versy in  which  it  has  no  concern  and  with 
which  it  ought  not  to  interfere.  (2  Op.  Atty. 
Gen.,  531.) 

For  the  Attorney  General  to  render  an  opin- 
ion in  such  a  case  would  be  to  lend  the  name  of 
the  Government  to  matters  of  controversy  with 
which  it  is  not  connected  by  law,  and  would 
thus  involve  unauthorized  interference  with 
private  rights.     (6  Op.  Atty.  Gen.,  24.) 

He  has  no  warrant  to  act  outside  of  the  stat- 
utes which  define  his  office.  (15  Op.  Attv. 
Gen.,  138;  18  Op.  Atty.  Gen.,  365.) 

He  is  not  authorized  or  required  to  give  an 
official  opiiuon  except  in  the  cases  specified  by 
law.  If  he  should  do  so,  he  would  overstep  the 
boundaries  which  appear  to  be  prescribed  for 
him  by  a  long  line  of  decisions  and  uniform 
practice,  and  would  commit  himself  upon  a 
question  which  might  be  properly  submitted  to 
him  thereafter  in  accordance  with  law.  (21 
Op.  Attv.  Gen.,  174;  20  Op.  Atty.  Gen.,  609, 
723.) 

His  opinion,  where  not  required  by  law, 
would  be  extraofficial  and  unauthorized.  (10 
Op.  Atty.  Gen.,  220;  19  Op.  Attv.  Gen.,  7;  20 
Op.  Atty.  Gen.,  724.) 

He  is  not  permitted  by  law  to  render  an  offi- 
cial opinion  upon  questions  not  covered  by  the 
statute.     (21  Op.  Atty.  Gen.,  174.) 

His  opinion,  if  rendered  in  a  case  not  speci- 
fied by  law,  would  be  entitled  to  no  more  con- 
sideration   than    the    opinion    of    any    person 


320 


Justice  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  358. 


presumed  to  have  some  knowledge  of  the  point 
in  question.  (17  Op.  Atty.  Gen.,  357;  20  Op. 
Attv.  Gen.,  383,667,  440;  2  Op.  Atty.  Gen., 
531") 

He  is  not  authorized  to  give  an  official  opin- 
ion in  any  case  not  falling  ■within  the  scope  of 
hia  duties,  so  as  to  connect  the  Government 
with  iuf livid  ual  controversies  in  which  it  has 
no  concern  and  with  Avhich  it  ought  not  to  inter- 
fere.    (6  Op.  Atty.  Gen.,  326,  334.) 

Such  opinions  would  be  in  violation  of  hia 
oath  of  office  and  of  dangerous  example.  (10 
Op.  Atty.  Gen., 164.) 

Woidd  make  it  impossible  for  the  Attorney 
General  to  attend  to  his  duties  as  prescribed  by 
law.     (5  Op.  Atty.  Gen.,  165.) 

Would  be  unwarranted  by  law  (11  Op. 
Atty.  Gen.,  4);  not  the  duty  or  practice  of  the 


Attorney  General  (13  Op.  Atty.  Gen.,  568;  19 
Op.  Atty.  Gen.,  414);  not  permitted  by  statute 
or  precedent  (19  Op.  Atty.  Gen.,  414);  would 
be  inexpedient.     (13  Op.  Atty.  Gen.,  535.) 

No  officer  should  be  permitted  to  stretch  his 
authority  and  carry  the  influence  of  his  office 
beyond  the  circle  which  the  positive  law  of  the 
land  has  drawn  around  him.  (1  Op.  Atty.  Gen., 
493;  20  Op.  Atty.  Gen.,  440.) 

Will  render  opinion  where  jurisdiction  is 
doubtful. — Where  the  Attorney  General  en- 
tertains a  doubt  as  to  whether  a  case  presented 
constitutes  one  of  a  character  prescribed  by 
statute  as  justifying  and  requiring  the  expres- 
sion of  an  opinion  by  him,  he  will  as  a  matter  of 
public  policy  aa  well  as  of  courtesy  determine 
such  doubt  in  favor  of  the  propriety  of  such  ad- 
vice.    (27  Op.  Atty.  Gep.,  38.) 


Sec.  357.  [Legal  advice  to  Departments  of  War  and  Navy.]  Whenever  a 
question  of  law  arises  in  the  administration  of  the  Department  of  War  or  the 
Department  of  the  Navy,  the  cognizance  of  which  is  not  given  by  statute  to 
some  other  officer  from  whom  the  head  of  the  Department  may  require  advice 
it  shall  be  sent  to  the  Attorney-General,  to  be  by  him  referred  to  the  proper 
officer  in  his  Department,  or  otherwise  disposed  of  as  he  may  deem  proper. — 
(22  June,  1870,  c.  150,  s.  6,  v.  16,  p.  163.) 


Whether  subordinate  oflElcers  of  the  War 
and  Navy  Departments  may  refer  ques- 
tions to  the  Attorney  General,  as  well  as 
the  heads  of  those  departments,  has  been  sug- 
gested but  not  decided  by  the  Attorney  Gen- 
eral. If  this  section  allows  such  action,  "it  is 
evident  that  it  makes  a  distinction  therein  be- 
twixt these  departments  and  all  others,  and 
that  for  a  reason  wliich  upon  its  face  it  suggests. ' ' 
(18  Op.  Atty.  Gen.,  59.  See  decisions  noted 
under  section  356,  holding  that  the  opinion  of 
the  Attorney  General  may  be  required  unde 
that  section  only  by  the  President  or  the  head 
of  a  department,  and  will  not  be  rendered  to 
subordinate  officers;  see  also  file  No.  20400-200 
Op.  13,  Sept.  25,  1920,  quoting  Atty.  Gen.'s 
letter  of  Sept.  13,  1920,  file  No.  204625,  re- 
questing that  all  references  from  the  Navy 
Dept.  come  directly  through  or  by  direction 
of  the  Secretary  of  the  Navy.) 

Questions  of  law  arising  in  the  Navy  De- 
partment.— In  the  Navy  Department  the  law 
authorizes  a  Judge  Advocate  General  who  is  by 
statute  given  cognizance,  among  other  things, 
of  such  duties  "as  have  heretofore  been  per- 
formed by  the  Solicitor  and  Naval  Judge  Ad- 
vocate General."  (Act  June  8,  1880,  21  Stat., 
164).  The  duties  of  the  Judge  Advocate  Gen- 
eral, as  defined  by  the  Navy  Regulations,  1920, 
include  "all  matters  of  law  arising  in  the  Navy 
Department."     (Art.  469  C.  N.  R.  2;   art.  393 


(3),  C.  N.  R.  2. )  Provision  has  also  been  made 
in  annual  appropriation  acts  for  a  Solicitor  in 
the  Navy  Department,  whose  duties  are  not 
defined  by  statute.  (See  legislative,  executive 
and  judicial  appropriation  act,  May  22,  1908, 
35  Stat.  218,  and  subsequent  years.)  By  Navy 
Regulations,  1920,  it  is  provided  that  "the  So- 
licitor shall  perform  such  duties  as  may  be 
assigned  by  the  Judse  Advocate  General  of  the 
Navy."     (Art.  393  (4),  C.  N.  R.  2.) 

The  Attorney  General  has  requested 
that  the  opinion  of  the  law  officer  of  a  depart- 
ment accompany  request  for  his  opinion  by 
the  head  of  such  department;  and  has  de- 
clined to  render  an  opinion  upon  a  question  of 
law  involving  the  personnel  of  the  Navy  until 
an  opinion  on  such  question  had  been  prepared 
by  the  Judge  Advocate  General  of  the  Navy. 
(File  22724-16:1,  Jan.  25,  1911;  file  27223-12, 
Jan.  20,  1915.     See  note  to  sec.  356,  R.  S.) 

Suits  in  foreign  countries. — In  view  of 
sections  189,  357,  and  365,  Revised  Statutes, 
the  Secretary  of  the  Navy  is  not  authorized  to 
employ  counsel  in  foreign  countries  to  institute 
suit  in  behalf  of  the  United  States  to  recover 
for  damages  caused  to  a  vessel  of  the  United 
States;  but  the  case  should  be  referred  to  the 
Department  of  Justice  for  attention.  (21  Op. 
Atty.  Gen.  195.  For  other  cases,  see  note  to 
sec.  189,  R.  S.) 


Sec.  358.  [Reference  of  questions  by  Attorney-General  to  subordinates.] 
Any  question  of  law  submitted  to  the  Attorney-General  for  his  opinion,  except 
questions  involving  a  construction  of  the  Constitution  of  the  United  States, 
may  be  by  him  referred  to  such  of  his  subordinates  as  he  may  deem  appro- 
priate, and  he  may  require  the  vsTitten  opinion  thereon  of  the  officer  to  whom 


321 


Sec.  369. 


Pt.2.  REVISED  STATUTES. 


Justice  Department. 


the  same  may  be  referred.  If  the  opinion  given  by  such  officer  is  approved  by 
the  Attorney-General,  such  approval  indorsed  thereon  shall  give  the  opinion 
the  same  force  and  effect  as  belong  to  the  opinions  of  the  Attorney-General. — 
(22  June,  1870,  c.  170,  s.  4,  v.  16,  p.  162.) 


As  to  "force  and  effect"  of  opinions  rendered 
by  Attornev  General,  see  note  to  section 
356,  Revised  Statutes. 
The  Attorney  General  must  personally 
pass  upon  every  question  submitted  to  him 
for  opinion;  for  although  he  may  under  this 
section  rol'or  the  ciuo-stion  to  a  subordinate  for 
a  written  opinion,  the  action  of  the  subordinate 
must  be  examined  and  appi'oved  by  the  At- 
torney  General    to   give   it   effect.     (21    Op. 
Atty.  Gen.,  174,  176.) 


Questions  involving  the  construction 
of  the  Constitution  should  be  submitted  to 
the  Attorney  General  for  his  personal  opinion. 
The  advice  of  the  Solicitor  of  the  Treasury 
may  be  asked  upon  any  other  question  of  law 
arising  in  the  Treasury  Department,  and  such 
advice  is  regarded  as  rendered  by  him  in  his 
character  as  assistant  to  the  Attorney  General. 
(20  Op.  Atty.  Gen.,  656,  657.) 


Sec.  359.  [Conduct  and  argument  of  cases.]  Except  when  the  Attorney- 
General  in  particular  cases  otherwise  directs,  the  Attorney-General  and  Solicitor- 
General  shall  conduct  and  argue  suits  and  writs  of  error  and  appeals  in  the 
Supreme  Court  and  suits  in  the  Court  of  Claims  in  which  the  United  States  is 
interested,  and  the  Attorney-General  may,  whenever  he  deems  it  for  the  interest 
of  the  United  States,  either  in  person  conduct  and  argue  any  case  in  any  court 
of  the  United  States  in  which  the  United  States  is  interested,  or  may  direct  the 
Solicitor-General  or  any  officer  of  the  Department  of  Justice  to  do  so. — (24  Sept., 
1789,  c.  20,  s.  35,  v.  1,  p.  92.  25  Jirne,  1868,  c.  71,  s.  5,  v.  15,  p.  75.  22  June, 
1870,  c.  150,  s.  5,  V.  16,  p.  162.     U.  S.  v.  Lawrence,  13  Blatch.,  295.) 


This  section  is  modified  by  act  of  June  30, 1906 
(34  Stat.,  816),  which  authorizes  the  Attor- 
ney General  or  any  attorney  appointed  by 
him  to  conduct  any  kind  of  legal  proceed- 
ing which  district  attorneys  are  authorized 
to  conduct,  including  grand  jury  proceed- 
ings. 

As  to  duty  of  Attorney  General  in  connection 
with  proceedings  in  Court  of  Claims,  see 
sections  180,  185,  Judicial  Code,  act  March 
3,  1911  (36  Stat.,  1142). 

Attorney  General  may  require  certain  informa- 
tion to  be  furnished  him  by  departments  in 
connection    with    suits   in    the   Court    of 
Claims.     (Sec.  188,  R.  S.) 
Suits  in  the  Court  of  Claims. — The  Attor- 
ney General  is  the  only  officer  of  the  Govern- 
ment, except  his  assistants  authorized  by  him, 
who  has  any  right  to  represent  the  United  States 
in  suits  in  the  Court  of  Claims.     (Campbell  v. 
U.  S.,  19  Ct.  Cls.,  426,  429.) 

The  authority  of  the  Attorney  General  to 
"conduct  suits"  in  the  Court  of  Claims  on  be- 
half of  the  Government  may  fairly  be  held  to 
include  at  least  every  act  in  the  conduct  of  such 
suits  which  an  attorney  at  law  in  a  suit  between 
individuals  might  lawfully  do,  with  this  reser- 
vation, as  has  uniformly  been  held  by  the  Court 
of  Claims,  that  he  can  not  on  the  trial  of  a  cause 
bind  the  Government  by  admitting  facts  ad- 
verse to  it  unless  they  are  such  as  it  is  his  offi- 
cial duty  to  know  and  as  have  become  known  to 
him  offifially  in  the  course  of  the  discharge  of 
such  duty.  (Campbell  v.  U.  S.,  19  Ct.  Cls., 
426,  429.) 


Proceedings  in  Supreme  Court. — When  a 
case  in  which  the  Government  is  interested 
comes  to  the  Supreme  Court  from  any  lower 
court,  it  passes  beyond  the  limits  within  which 
a  district  attorney  has  jurisdiction  and  exercises 
his  powers  and  falls  by  the  terms  of  this  section 
within  the  special  care  of  the  Attorney  General. 
The  Attorney  General  may  in  his  discretion 
make  other  arrangements  for  the  management  of 
such  a  case,  but  this  discretion  does  not  abridge 
the  fact  that  full  responsibility  and  control  are 
imposed  directly  upon  him  as  the  head  of  the 
Department  of  Justice.  (U.  S.  v.  Winston,  170 
U.  S.,  522,  524.) 

The  solicitor  in  the  office  of  the  Judge  Advo- 
cate General  of  the  Navy  has  represented  the 
United  States  in  the  Supreme  Court  (U.  S.  v. 
Smith,  197  U.S.,  386;  hie  469-1904);  as  has  also 
a  commissioned  officer  of  the  Marine  Corps,  who 
appeared  in  behalf  of  the  United  States  "by 
special  leave  of  the  court. ' '  (Johnson  v.  Sayre, 
158  U.  S.,  113;  file  5728-1894.  See  also  U.  S.  v. 
Freeman,  3  How.,  560,  in  which  defendant,  an 
officer  of  the  Marine  Corps,  submitted  printed 
argument  for  himself  and  was  not  represented 
by  counsel.) 

Proceedings  in  inferior  Federal  courts. — 
It  is  at  least  doubtful  whether  the  authority 
given  the  Attorney  General  to  "conduct  and 
argue  any  case  in  any  court  of  the  United  States 
in  which  the  United  States  is  interested  "  con- 
fers upon  him  any  authority  to  commence  and 
institute  i)roceedings  except  through  the  dis- 
trict attornevs.  (Attorney  General  v.  Rumford 
Chemical  Works,  32  Fed.  Rep.,  608,  623.  But 
see  act  June  30, 1906,  noted  above.) 


322 


Justice  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  362. 


It  is  probable  that  the  intention  of  this  section 
was  to  settle  the  right  of  the  highest  law  officer 
of  the  United  States  and  the  Solicitor  General 
and  the  officers  of  the  Department  of  Justice  to 
"conduct  and  argue"  cases  "in  any  court"  as 
they  had  been  permitted  to  do  in  the  Supreme 
Court  and  in  the  Court  of  Claims,  and  to  leave 
public  prosecutions  until  they  come  before  the 
court  to  which  they  are  returnable  within  the 
exclusive  direction  of  the  district  attorney  as 
theretofore  declared.  (U.  S.  v.  Rosenthal,  121 
Fed.  Rep.,  866.  But  see  act  June  30,  1906, 
noted  above.) 

Proceedings  before  grand  jury.— The  At- 
torney General,  the  Solicitor  General,  nor  any 


officer  of  the  Department  of  Justice  is  authorized 
by  sections  359,  367,  or  other  provisions  of  the 
Revised  Statutes  to  conduct  or  to  aid  in  the  con- 
duct of  proceedings  before  a  grand  jury,  nor  has 
a  special  assistant  to  the  Attorney  General  such 
power.  (U.  S.  v.  Rosenthal,  121  Fed.  Rep., 
862.)  [This  is  now  authorized  by  act  June  30, 
1906,  above  noted.] 

Suits  in  State  courts. — It  should  be  ob- 
served that  by  section  359  the  Attorney  General 
may  not  "conduct  and  argue  any  case"  in  a 
State  court.  Section  367  gives  that  power. 
(U.  S.  V.  Rosenthal,  121  Fed.  Rep.,  867.) 


Sec.  360.  [Performance  of  duty  by  officers  of  the  Department  of  Justice.] 
The  Attorney-General  may  require  any  solicitor  or  officer  of  the  Department 
of  Justice  to  perform  any  duty  required  of  the  Department  or  any  officer 
thereof.— (22  June,  1870,  c.  150,  s.  14,  v.  16,  p.  164.) 


The  Attorney  General  has  express  au- 
thority under  this  section  and  section  367  to 
send  an  officer  of  the  Department  of  Justice  to 
any  State  in  the  United  States  to  attend  to  the 


taking  of  a  deposition  in  a  suit  in  which  the 
United  States  is  interested  and  which  is  pending 
in  another  State.  (U.  S.  v.  Ady,  76  Fed.  Rep., 
359,  363.) 


Sec.  361.  [Legal  services  required  by  the  President,  heads  of  depart- 
ments and  subordinates.]  The  officers  '  of  the  Department  of  Justice, 
under  the  direction  of  the  Attorney-General,  shall  give  all  opinions  and  render 
all  services  requiring  the  skill  of  persons  learned  in  the  law  necessary  to  enable 
the  President  and  heads  of  Departments,  and  the  heads  of  Bureaus  and  other 
officers  in  the  Departments,  to  discharge  their  respective  duties;  and  shall,  on 
behaK  of  the  United  States,  procure  the  proper  evidence  for,  and  conduct, 
prosecute,  or  defend  all  suits  and  proceedings  in  the  Supreme  Court  and  in  the 
Court  of  Claims,  in  vs^hich  the  United  States,  or  any  officer  thereof,  as  such 
officer,  is  a  party  or  may  be  interested;  and  no  fees  shall  be  allowed  or  paid  to 
any  other  attorney  or  counselor  at  law  for  any  service  herein  required  of  the 
officers  of  the  Department  of  Justice,  except  in  the  cases  provided  by  section 
three  hundred  and  sixty-three. — (22  June,  1870,  .  150,  s.  14,  v.  16,  p.  164.) 


See  section  188,  Revised  Statutes,  concerning 
evidence  to  be  furnished  Attorney  General 
to  defend  suits  in  Court  of  Claims. 

See  section  189,  Revised  Statutes,  and  note,  as 
to  employment  of  attorneys  or  counsel  by 
the  heads  of  departments  generally,  employ- 
ment of  counsel  to  serve  as  judge  advocate 
or  to  assist  the  judge  advocate  of  a  naval 
court-martial,  employment  and  pajinent 
of  counsel  in  foreign  countries,  etc.  See 
also  note  to  section  362,  Revised  Statutes. 


Legal  assistance  to  subordinate  offi- 
cers.— P^or  the  guidance  of  the  heads  of  bureaus 
and  other  officers  of  the  departments  in  the 
discharge  of  their  duties,  provision  is  made  by 
this  section  for  assistance  from  the  oflicers  of  the 
Department  of  Justice  under  the  direction  of 
the  Attorney  General.  (20  Op.  Atty.  Gen., 
608,  609.  See  also  note  to  sees.  356  and  357, 
R.  S.) 


Sec.  362.  [Superintendence  of  district  attorneys  and  marshals.]  The  Attorney- 
General  shall  exercise  general  superintendence  and  direction  over  the  attorneys 
and  marshals  of  all  the  districts  in  the  United  States  and  the  Territories  as  to  the 
manner  of  discharging  their  respective  duties ;  and  the  several  district  attorneys 
and  marshals  are  required  to  report  to  the  Attorney-General  an  account  of 
their  official  proceedings,  and  of  the  state  and  condition  of  their  respective 
offices,  in  such  time  and  manner  as  the  Attorney-General  may  direct. — (2  Aug., 
1861,  c.  37,  s.  1,  V.  12,  p.  285.     22  June,  1870,  c.  150,  ss.  16,  17,  v.  16,  p.  164.) 


323 


Sec.  363. 


Pt.  2.  REVISED  STATUTES. 


Justice  Department. 


Purpose  of  section. — The  Attorney  Gen- 
eral being  the  chief  law  oHker  of  the  Govern- 
ment, Cons;ros.s  docMued  it  i^rojicr  to  sul)ject  to 
his  general  sii))orint(Mi(len(e  tnese  subordinate 
law  oHiccrs  to  the  end  tluil  the  legal  l)usiness  of 
the  I'nited  States  in  their  luuids,  whether  civil 
or  criminal,  should  l)e  placed  more  directly 
under  the  eye  and  witliin  the  control  of  the 
Government!     (10  ()]i.  Atty.  (!cn.,  95.^ 

This  section  does  not  authorize  the  At- 
torney General  to  control  the  action  of  the 
district  attorneys  in  criminal  cases  by  general 
regulation.  His  power  must  be  exercised  by 
giving  jKxrticular  instructions  in  particular 
cases  and  based  on  the  facts  of  such  cases. 
(Fish  D.  U.  S.,  36  Fed.  Rep.,  677.) 

Instructions  to  district  attorneys  in 
naval  cases. — In  cases  in  which  persons  in 
the  naval  service  applj^  for  writs  of  habeas 
corpus,  it  is  the  practice  of  the  Attorney  Gen- 
eral, upon  request  of  the  Secretary  of  the  Navy, 
to  instruct  the  United  States  attorney  for  the 
district  in  which  the  proceeding  is  instituted, 
to  render  all  necessary  assistance  to  the  officer 
upon  whom  the  writ  is  served  in  order  to  protect 
the  interests  of  the  Government.  (File  26522; 
G.  0.  121,  Sept.  17,  1914.) 

Similar  instructions  are  issued  by  the  Attor- 
ney General  in  other  cases  of  legal  proceedings 
instituted  against  officers  of  the  Na\'y  as  the 
result  of  official  acts  performed  by  them.  (File 
204-04,  Jan.  15,  1904,  suit  of  Paymaster  Robt. 
B.  Rodney,  retired,  against  Capt.  Sam.  C. 
Lemly,  Judge  Advocate  General;  file  27231- 
8:6,  Feb.  6,  1911,  mandamus  proceeding  by 
Capt.  Jefferson  F.  Moser,  U.  S.  N.,  retired, 
against  Hon.  George  von  L.  Meyer,  Secretary 
of  the  Nav}^;  file  26522-19:4,  December  3, 
1912,  suit  of  W.  W.  Dickey,  chief  commissary 
steward,  against  Rear  Admiral  Doyle,  Capt. 
Huse,  Capt.  Welles,  Capt.  Quimby,  U.  S.  N., 
and  Capt.  Marix,  U.  S.  M.  C;  file  28478^2:1. 
suit  of  I3enj.  B.  Abrahams  against  First  Lieut. 
Howard  C.  Judson,  U.  S.  M.  C;  see  also,  9  Op. 
Atty.  Gen.,  51.) 

In  cases  in  which  persons  fratidulently  imper- 
sonate officers  or  enlisted  men  of  the  Navy,  the 
Attorney  General  causes  criminal  prosecutions 
to  be  instituted  by  the  United  States  attorneys 
where  the  matter  is  brought  to  his  attention  by 
the  Secretary  of  the  Navy  (file  21355);  and  ap- 
propriate instructions  are  issued  by  him  to  dis- 
trict attorneys  in  other  classes  of  cases  concern- 
ing the  Navy  Department,  such  as  reported 
violations  of  the  8-noiir  law  by  contractors  (file 
10107),  etc. 

In  trials  before  courts-martial  the  Attorney 
General,  upon  request  of  the  Secretary  of  the 
Na\-y  in  special  cases,  has  instriicted  a  United 
States  attorney  to  assist  the  judge  advocate 
(file  26251-5816:2);  and  has  issued  similar  in- 
stnictions  in  cases  under  investigation  by  courts 
of  inqiury  (file  14625-183:1;  9608-44:4.  See 
also  note  to  sec.  189,  R.  S.). 

The  Attorney  General,  upon  request  of  the 
Secretary  of  the  Navy,  has  instructed  a  United 


States  attorney  to  assist  in  the  prosecution  of  a 
civil  suit  brought  by  a  chief  petty  ofiicer 
against  private  parties  for  discrimination  against 
the  naval  uniform.  (File  5421-3;  see  also  file 
7657-330.) 

The  Secretary  of  the  Navy  will  not  request 
the  Attorney  General  to  instruct  United  States 
attorneys  to  institute  criminal  proceedings 
against  applicants  for  enlistment  in  the  Marine 
Coqjs  alleged  to  have  fraiidulently  obtained 
Government  transportation,  it  appearing  that 
such  attorneys  have  declined  to  prosecute  these 
cases,  and  that  the  necessity  for  proceedings  in 
the  civil  courts  might  be  ob\dated  by  enlisting 
the  men  l)efore  furnishing  them  with  transi^orta- 
tion,  thereby  subjecting  them  to  the  juris- 
diction of  naval  courts-martial.  (File  7657- 
180.) 

\\  here  an  officer  asking  that  legal  assistance 
be  furnished  him  has  failed  to  give  the  full  facts 
of  the  case  to  the  Navy  Department,  although 
afforded  ample  opportunity  to  do  so,  and  in 
consequence  the  department  has  not  sufficient 
information  to  enable  it  to  act  intelligently 
upon  the  request,  the  case  is  not  a  proper  one 
for  reference  to  the  Attorney  General.  (File 
26262-1705:3,  May  21,  1915.) 

The  Attorney  General  can  not  instruct  a 
United  States  attorney  to  appear  in  a  State  court 
to  assist  in  the  prosecution  of  a  private  citizen 
charged  with  killing  a  person  in  the  naval  serv- 
ice; it  must  be  assumed  in  the  absence  of  facta 
tending  to  show  the  contrary  that  the  State 
authorities  will  do  their  full  duty  in  the  matter; 
and  attempted  interference  with  the  State  au- 
thorities woidd  be  improper.  (File  26250- 
340:3,  June  11, 1912,  following  letter  of  Attorney 
General,  Apr.  18,  1912,  file  26250-340:2;  7657- 
374.) 

Although  the  Attorney  General  may  enter- 
tain doubt  whether,  in  view  of  the  peculiar 
circumstances  of  hardship  in  a  particular  case, 
it  is  desirable  to  proceed  ^vith  a  criminal  prose- 
cution institiitecl  at  the  instance  of  the  Navy 
Department,  he  will  nevertheless  direct  the 
United  States  attorney  to  proceed  with  the 
case  if  in  the  opinion  of  the  Secretary  of  the 
Navy  the  interests  of  the  Navy  Department 
render  it  desirable  that  such  a  prosecution  be 
had.  (File  5939-6,  Feb.  12,  1907.)  [The  Sec- 
retary of  the  Navy  concurring  in  the  recom- 
mendation of  the  United  States  attorney  in  this 
case,  the  Attorney  General  authorized  the  latter 
to  dismiss  the  case,  which  was  a  prosecution  for 
perjury  against  a  former  enlisted  man  who  had 
been  discharged  from  the  Marine  Corps  upon 
writ  of  habeas  corinis  on  account  of  fraudulent 
enlistment.     (File5939-7,Feb.  18,  1907.)] 

Instructions  to  marshals.-The  Attorney 
General  declines  to  instruct  United  States  mar- 
shals to  apprehend  and  return  deserters  from 
the  Navy  where  Congress  has  not  seen  fit  to 
confer  such  authority  upon  civil  officers.  (File 
5621-1,  Nov.  17,  1906.  For  subsequent  legis- 
lation on  this  sTibject  see  act  Feb.  16, 1909,  sec. 
15,  35  Stat..  622.) 


Sec.  363.  [Retaining  counsel  to  aid  district  attorneys.]  The  Attorney-Gen- 
eral shall,  whenever  in  his  opinion  the  pubHc  interest  requires  it,  employ  and 
retain,  in  the  name  of  the  United  States,  such  attorneys  and  counselors  at  law 
as  he  may  think  necessary  to  assist  the  district  attorneys  in  the  discharge  of 

324 


Justice  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  366. 


their  duties,  and  shall  stipulate  with  such  assistant  attorneys  and  counsel  the 
amount  of  compensation,  and  shall  have  supervision  of  their  conduct  and  pro- 
ceedings.—(2  Aug.,  1861,  c.  37,  s.  2,  v.  12,  p.  285.  3  Mar.,  1869,  c.  121,  s.  1, 
V.  15,  pp.  283,  294.  10  April,  1869,  c.  25,  v.  16,  p.  46.  22  June,  1870,  c.  150, 
s.  16,  V.  16,  p.  164.) 

See  note  to  section  3G6,  Revised  Statutes. 

Sec.  364.  [Attendance  of  counsel  to  be  provided  by  Attorney-General.] 
Whenever  the  head  of  a  Department  or  Bureau  gives  the  Attorney-General 
due  notice  that  the  interests  of  the  United  States  require  the  service  of  counsel 
upon  the  examination  of  witnesses  toucliing  any  claim,  or  upon  the  legal  in- 
vestigation of  any  claim,  pending  in  such  Department  or  Bureau,  the  Attorney- 
General  shall  provide  for  such  service. — 14  Feb.,  1871,  c.  51,  s.  3,  v.  16,  p.  412.) 


A  similar  provision  is  contained  in  section  187, 
Revised  Statutes. 
The  object  of  these  statutory  provisions 
(sees.  363,  364,  and  365,  R.  S.)  is  manifest. 
vMule  giving  the  Attorney  General  full  power 
to  employ  counsel  for  tne  United  States  to 
assist  those  upon  whom  regiilarly  devolve  the 
duty  of  representing  the  Government  in  the 
courts  without  special  compensation,  Congress 
intended  to  restrict  the  exercise  of  that  power 
to  the  extent  indicated  in  section  365.  It  was 
left  to  that  officer  to  determine  whether  the 
public  interests  required  the  employment  of 
special  counsel,  but  that  the  discretion  given 


him  might  not  be  abused  and  that  unnecessary 
expense  might  be  avoided  it  was  declared  (sec. 
365)  that  except  in  the  cases  of  the  respective 
district  attorneys  and  assistant  district  attorneys 
no  compensation  should  be  allowed  to  any  per- 
son as  an  attorney  or  counsel  for  the  United 
States  imless  specially  authorized  by  law,  and 
then  only  on  the  certificate  of  the  Attorney 
General  that  such  services  were  actually  ren- 
dered and  that  the  same  could  not  have  been 
performed  by  the  Attorney  General  or  by  the 
Solicitor  General  or  by  the  officers  of  the  De- 
partment of  Justice  or  by  the  district  attorneys. 
(U.  S.  V.  Crosthwaite,  168  U.  S.,  375,  379.) 


Sec.  365.  [Counsel  fees  restricted.]  No  compensation  shall  hereafter  be 
allowed  to  any  person,  besides  the  respective  district  attorneys  and  assistant 
district  attorneys  for  services  as  an  attorney  or  counselor  to  the  United  States, 
or  to  any  branch  or  Department  of  the  Government  thereof,  except  in  cases 
specially  authorized  by  law,  and  then  only  on  the  certificate  of  the  Attorney- 
General  that  such  services  were  actually  rendered,  and  tliat  the  same  could 
not  be  performed  by  the  Attorney-General,  or  Solicitor-General,  or  the  officers 
of  the  Department  of  Justice,  or  by  the  district  attorneys. — (22  June,  1870, 
c.  150,  s.  17,  V.  16,  p.  164.) 

See  note  to  section  364,  Revised  Statutes. 

Sec.  366.  [Appointment  and  oath  of  special  attorneys  or  counsel.]  Every 
attorney  or  counselor  who  is  specially  retained,  under  the  authority  of  the 
Department  of  Justice,  to  assist  in  the  trial  of  any  case  in  which  the  Govern- 
ment is  interested,  shall  receive  a  commission  from  the  head  of  such  Depart- 
ment, as  a  special  assistant  to  the  Attdrney-General,  or  to  some  one  of  the 
district  attorneys,  as  the  nature  of  the  appointment  may  require;  and  shall 
take  the  oath  required  by  law  to  be  taken  by  the  district  attorneys,  and  shall 
be  subject  to  all  the  liabilities  imposed  upon  them  by  law. — (22  June,  1870, 
c.  150,  s.  17,  V.  16,  p.  164.) 


See  section  189,  Revised  Statutes,  and  note 
thereto. 

Counsel  employed  in  foreign  country  to 
defend  master  of  a  United  States  naval  aux- 
iliary in  suit  for  collision,  not  required  to  take 
oath  of  office.  File  4729-18.  (See  note  to 
sec.  189,  R.  S.) 

Sections  363  and  366  must  be  construed 
together  and  as  referring  to  the  same  class  of 


special  assistants.  They  do  not  authorize  the 
Attorney  General  to  appoint  special  assistants 
to  a  district  attorney  having  the  authority  or 
right  to  appear  before  and  participate  in  the 
proceedings  of  a  grand  jury.  (U.  S.  v.  Chem- 
ical Co.,  163  Fed.  Rep.,  66;  but  see  note  to  sec. 
359,  R.  S.) 


325 


Sec.  383.  Pt.  2.  REVISED  STATUTES.  Justice  Department. 

Sec.  367.  [Interest  of  United  States  in  pending  suits — who  may  attend  to.] 
The  Solicitor-General,  or  any  officer  of  the  Department  of  Justice,  may  be  sent 
by  the  Attorney-General  to  any  State  or  District  in  the  United  States  to  attend 
to  the  interests  of  the  United  States  in  any  suit  pending  in  any  of  the  courts 
of  the  United  States,  or  in  the  courts  of  any  State,  or  to  attend  to  any  other 
interest  of  the  United  States.— (22  June,  1870,  c.  150,  s.  5,  \.  16,  p.  162.) 

See  note  to  section  360,  Revised  Statutes. 

Sec.  383.  [Publication  of  opinions.]  The  Attorney-General  shaU  from  time 
to  time  cause  to  be  edited,  and  printed  at  the  Government  Printing-Office,  an 
edition  of  one  thousand  copies  of  such  of  the  opinions  of  the  law-officers  herein 
authorized  to  be  given  as  he  may  deem  valuable  for  preservation  in  volumes, 
whicli  sliall  be,  as  to  size,  quality  of  paper,  printing,  and  binding,  of  uniform 
style  and  appearance,  as  nearly  as  practicable,  with  volume  eight  of  such 
opinions,  published,  by  Robert  Farnham,  in  the  year  eighteen  hundred  and 
sixty-eight.  Each  volume  shaU  contain  proper  head-notes,  a  complete  and 
full  index,  and  such  foot-notes  as  the  Attorney-General  may  approve.  Such 
volumes  shall  be  distributed  in  such  manner  as  the  Attorney-General  may  from 
time  to  time  prescribe. — (22  June,  1870,  c.  150,  s.  18,  v.  16,  p.  165.) 


The  opinions  of  the  successive  Attor- 
neys General,  possessed  of  greater  or  less 
amovmt  of  legal  acumen,  acquirement,  and 
experience,  have  come  to  constitute  a  body  of 
legal  precedents  and  exposition,  having  author- 


ity the  same  in  kind  if  not  the  same  in  degree 
with  decisions  of  the  courts  of  justice.  (6  Op. 
Atty.  Gen.,  326, 334.  See  note  to  sec.  356,  R.  S., 
as  to  weight  of  Attorney  General's  opinions.) 


326 


TITLE    IX. 
THE  POST-OFFICE  DEPARTMENT. 


Sec. 

388.  Establishment  of  Post-Office  Department. 

391.  Oath  of  office. 

392.  Oath,  before  whom  taken. 


Sec. 

39G.  Duties  of  Postmaster-General. 
398.  Postal    arrangements  with  foreign 
tries. 


coun- 


Sec.  388.  [Establishment  of  Post-Office  Department.]  There  shall  be  at  the 
seat  of  Government  an  Executive  Department  to  be  known  as  the  Post-Office 
Department,  and  a  Postmaster-General,  who  shall  be  the  head  thereof,  and  who 
shall  be  appointed  by  the  President,  by  and  with  the  advice  and  consent  of  the 
Senate,  and  who  may  be  removed  in  the  same  manner;  and  the  term  of  the 
Postmaster-General  shall  be  for  and  during  the  term  of  the  President  by  whom 
he  is  appointed,  and  for  one  month  thereafter,  unless  sooner  removed. — (8 
May,  1794,  c.  23,  s.  3,  v.  1,  p.  357;  8  June,  1872,  c.  335,  ss.  1,  2,  v.  17,  p.  283.) 


Envelopes  for  use  by  all  executive  depart- 
ments and  branches  of  the  service  under 
their  jmisdiction  shall  be  contracted  for  by 
the  Postmaster  General  for  periods  not  ex- 
ceeding four  years,  such  envelopes  to  be 
plain  or  printed  as  may  be  prescribed  by 
the  department  making  the  requisition. 
(Act  June  26,  1906,  34  Stat.,  476.) 

History  and  growth  of  executive  departments — 
Bee  note  to  section  158,  Prevised  Statutes. 

Navy  mail  clerks  and  assistant  navy  mail 
clerks,  appointed  from  enUsted  men  of  the 
Navy  and  Marine  Corps,  as  to  their  duties 
as  such  clerks  shall  be  "governed  by  the 
postal  laws  and  regulations  of  the  United 
States."  (Act  May  27,  1908,  35  Stat.,  417, 
as  amended  by  acts  Aug.  24,  1912,  37  Stat., 
554,  Aug.  24,  1912,  sec.  11,  37  Stat.,  560, 
Mar.  4,  1917,  39  Stat.,  1188,  and  July  1, 
1918,  40  Stat.,  718..) 

Ocean  mail  vessels  are  to  be  constructed  ac- 
cording to  plans  approved  by  the  Secre- 
tary of  the  Navy  with  reference  to  their 
conversion  into  naval  auxiliary  cruisers; 
no  vessel  to  be  employed  by  the  Post- 
master General  in  such  service  which  is  not 
approved  by  the  Secretary  of  the  Navv. 
(Act  Mar.  3,  1891,  sec.  4,  26  Stat.,  831.)  " 

Ocean  mail  vessels  may  be  taken  by  the  United 
States  and  used  as  transports  or  cruisers, 
upon  payment  to  owners  of  the  full  actual 
value.  (Act  Mar.  3,  1891,  sec.  9,  26  Stat., 
832.) 

Officers  of  the  Navy  may  be  detailed  by  Secre- 
tary of  the  Navy  for  duty  on  ocean  mail 
vessels,  if  accepted  by  the  contractor,  and 
while  so  employed  they  shall  receive  fur- 
lough pay  from  the  Government.  (Act 
Mar.  3,  1891,  sec.  7,  26  Stat.,  832.) 

Penalty  envelopes:  Letters,  packages,  etc., 
relating  exclusively  to  business  of  the  Gov- 


ernment of  the  United  States  may  be  trans- 
mitted free  tln-ough  the  mail  (act  Mar.  3, 
1877,  sec.  5,  19_Stat.,  335).  The  envelopes 
of  such  matter  in  all  cases  shall  bear  appro- 
priate indorsements  containing  the  proper 
designation  of  the  office  from  which  or 
officer  from  whom  the  same  are  transmitted, 
with  a  statement  of  the  penal tv  for  their 
misuse.  (Act  Mar.  3,  1879,  sec.  29,  20 
Stat.,  362,  amended  by  act  Julv  5,  1884, 
sec.  3,  23  Stat.,  158.  See  Art.  5481,  Naval 
Insti-uctions,  1913.  See  also  note  to  sec. 
398,  R.  S.,  file  25885-6,  and  file  10726-15, 
May  1, 1914.) 

Penalty  envelopes:  Any  department  or  officer 
authorized  to  use  penalty  envelopes  may 
inclose  them  with  return  address  to  persons 
from  whom  official  information  is  desired. 
(Act  Mar.  3,  1879,  sec.  29,  20  Stat.,  362, 
amended  by  act  July  5,  1884,  sec.  3,  23 
Stat.,  158.)  But  such  envelopes  shall  not 
be  furnished  for  use  to  contractors  with  the 
Government  or  to  enable  private  persons 
or  concerns  to  send  free  reports,  etc.,  which 
they  are  required  by  law  to  make.  (Sec. 
500,  "Postal  Laws  and  Regulations,"  1913.) 

Penalty  envelopes:  No  article  or  package  shall 
be  admitted  to  the  mails  under  the  penalty 
privilege  unless  it  would  be  entitled  to  ad- 
mission to  the  mails  under  laws  requiring 
pavment  of  postage.  (Act  June  26,  1906, 
34  Stat.,  477.) 

Penalty  envelopes:  Lending  or  permitting  use 
of  frank  by  or  for  benefit  of  any  committee, 
organization,  or  association,  other  than 
committees  composed  of  members  of  Con- 
gress, declared  unlawful.  (Act  June  26, 
1906,  34  Stat.,  477. )_  Fraudulent  use  of 
official  envelopes  punishable  by  fine  of  not 
more  than  .f300.  (Criminal  Code,  act  Mar. 
4,  1909,  sec.  227,  35  Stat.,  1134.) 


327 


Sec.  392. 


Pt.  2.  REVISED  STATUTES.         Post-Office  Department, 


Soldiers,  sailors,  and  marines  in  service  of  the 
X'nited  States,  may  transmit  unpaid  and 
duly  certified  letters  to  their  destination, 
iui(fer  regulations  i)rescribed  by  the  Post- 
master General,  to  be  paid  for  on  delivery. 
(Act  Mar.  3,  1879,  sec.  9,  20  Stat.,  358.) 
During  the  present  war  such  letters  writ- 
ten by  soldiers,  sailoi^s  and  marines  in  a 
foreign  country  may  be  mailed  free  of 
postage.     (Act  Oct.  3,  1917,  40  Stat.,  327.) 


President  authorized  to  use  armed  forces  to  pre- 
vent obstruction  of  mails  durLng  exist- 
ing war.  (Act  Aug.  10,  1917,  40  Stat, 
272.) 

Registered  mail:  Lettere  or  packages  may  be 
registered  by  executive  departments  and 
bureaus  without  payment  of  registry  fee. 
(Act  Mar.  3,  1879,  sec.  29,  20  Stat.,  362, 
amended  by  act  Julv  5,  1884,  sec.  3,  23 
Sta,t.,  158.) 

Sec.  391.  [Oath  of  office.]  Before  entering  upon  the  duties  of  his  office,  and 

before  he  shall  receive  any  salary,  the  Postmaster-General  and  each  of  the 

persons  employed  in  the  postal  service  shall  respectively  take  and  subscribe, 

before  some  magistrate  or  other  competent  officer,  the  following  oath:  "I, 

A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  perform  all  the  duties 

required  of  me,  and  abstain  from  everything  forbidden  by  the  laws  in  relation 

to  the  estabhshment  of  post-offices  and  post^roads  within  the  United  States;  and 

that  I  wiU  honestly  and  truly  account  for  and  pay  over  any  money  belonging 

to  the  said  United  States  which  may  come  into  my  possession  or  control:  So 

help  me,  God."— (8  June,  1872,  c.  335,  s.  15,  v.  17,  p.  287;  5  Mar.,  1874,  c.  46, 

V.  18,  p.  19.) 


Enlisted  men  of  the  Navy  or  Marine  Corps, 
designated  as  navy  mail  clerks  or  assistant 
navy  mail  clerks,  are  required  by  law  to 
"take  the  oath  of  office  prescribed  for 
employees  of  the  Postal  Service."  (Act 
May  27,  1908,  35  Stat.,  417,  as  amended  by 
acts  Aug.  24,  1912,  37  Stat.,  554,  Aug.  24, 
1912,  sec.  11,  37  Stat.,  560,  Mar.  4,  1917,  39 
Stat.,  1188,  and  July  1,  1918,  40  Stat.,  718.) 
By  Naval  Instructions,  1913  (art.  5401  (4)), 
navy  mail  clerks  and  assistant  navy  mail 
clerks  are  required  to  take  an  oath  of 
office  which  combines  that  prescribed  in 


section  1757,  Re^"ised  Statutes,  with  that 
prescribed  for  the  Postal  Ser\'ice.  (See 
18  Op.  Atty.  Gen.,  181.  See  also  "Postal 
Laws  and  Regulations,  sec.  153;"  and  see 
file  3980-1185,  Jan.  15,  1916.) 

"Every  person  employed  in  the  Postal  Service 
shall  be  subject  to  all  j^enalties  and  for- 
feitures for  the  violation  of  the  laws  relating 
to  such  service,  whether  he  has  taken  the 
oath  of  office  or  not."  (Criminal  Code,  act 
Mar.  4,  1909,  sec.  230,  35  Stat.,  1134.) 

For  modification  of  this  section,  see  note  to 
section  392,  Revised  Statutes. 


Sec.  392.  [Oath,  before  whom  taken.]  Any  officer,  civil  or  military,  holding 

a  commission  under  the  United  States,  is  authorized  to  administer  and  certify 

the  oath  prescribed  by  the  preceding  section. — (8  June,  1872,  c.  335,  s.  15, 

v.  17,  p.  287;  5  2Iar.,  1874,  c.  46,  v,  18,  p.  19.) 

forbidden  by  the  laws  in  relation  to  the  estab- 
lishment of  post-offices  and  post-roads  within 
the  United  States;  and  that  I  ■will  honestly 
and  truly  account  for  and  pay  over  any  money 
belonging  to  the  said  United  States  which  may 
come  into  my  possession  or  control;  and  I  akso 
further  swear  (or  affirm)  that  I  'wdll  support  the 
Constitution  of  the  United  States;  so  help  me 
God.'  And  this  oath  or  affirmation  may  be 
taken  before  any  officer  civil  or  mihtary  hold- 
ing a  commission  under  the  United  States,  and 
such  officer  is  hereby  authorized  to  administer 
and  certify  such  oath  or  affirmation." 

This  act  of  March  5,  1874,  is  amendatory  of 
sections  391  and  392,  in  so  far  as  said  act  varies 
from  those  sections,  this  being  provided  for  by 
section  5601,  Revised  Statutes.  Also,  by  act  of 
March  2,  1877  (19  Stat.,  268),  as  amended  by 
actof  March  9, 1878  (20  Stat. ,  27),  it  was  provided 
that  the  second  edition  of  the  Revised  Statutes 
shall  "not  control,  in  case  of  any  discrepancy, 
the  effect  of  any  original  act  as  passed  by  Con- 
gress since  the  first  day  of  December,  eighteen 
hundred  and  seventy-three." 


As  to  persons  in  the  naval  service  authorized  to 
administer  oaths,  see  section  183,  Revised 
Statutes,  and  note  thereto. 
Naval  Instructions,  1913,  article  5401  (4),  pro- 
vides that  the  oath  administered  to  navy 
mail  clerks  and  assistant  navy  mail  clerks 
shall  be  taken  and  subscribed  "before  a 
magistrate  or  commissioned  officer  of  the 
Navy." 
Sections  391  and  392,  as  printed  above, 
are  in  the  same  lansruage  as  these  sections  appear 
in  the  second  edition  of  the  ReWsed  Statutes. 
However,  by  act  of  March  5,  1874  (18  Stat.,  19), 
it  was  provided  as  follows:  "That  before  en- 
tering upon  the  duties,  and  before  they  shall 
receive  any  salary,   the   Postmaster  General, 
and  all  persons  employed  in  the  postal  ser^dce, 
shall   respectively  take  and   subscribe  before 
some    magistrate    or    other    competent    officer 
authorized  to  administer  oaths  by  the  laws  of 
the  United  States,  or  of  any  State  or  Territory, 
the   following  oath   or  affirmation:  'I,   A.    13. 
do  solemnly  swear  (or  affirm,  as  the  case  may 
be,)  that  I  will  faithfully  perform  all  the  duties 
required  of  me  and  abstain  from  everything 


328 


Post-Office  Department. 


PL  2.  RE  VISED  S  TA  T  UTES. 


Sec.  398. 


Sec.  396.  [Duties  of  Postmaster-General.]  It  shall  be  the  duty  of  the 
Postmaster-General : 

Fu^t.  To  establish  and  discontinue  post-offices. 

Second.  To  instruct  all  persons  in  the  postal  service  with  reference  to  their 
duties. 

Thu'd.  To  decide  on  the  forms  of  all  official  papers. 

Fourth.  To  prescribe  the  manner  of  keeping  and  stating  accounts. 

Fifth.  To  enforce  the  prompt  rendition  of  returns  relative  to  accounts. 

Sixth.  To  control,  according  to  law,  and  subject  to  the  settlement  of  the 
Sixth  Auditor,  aU  expenses  incident  to  the  service  of  the  Department. 

Seventh.  To  superintend  the  disposal  of  the  moneys  of  the  Department. 

Eighth.  To  direct  the  manner  in  which  balances  shall  be  paid  over;  issue 
warrants  to  cover  money  into  the  Treasury;  and  to  pay  out  the  same. 

Nmth.  To  superintend  generally  the  business  of  the  department,  and 
execute  all  laws  relative  to  the  postal  service.  [See  sees.  3660-3665,  3668, 
3669.]— (8  June,  1872,  c.  335,  s.  6,  v.  17,  p.  285;  3  Mar.,  1877,  c.  103,  s.  2, 
V.  19,  p.  335;  Locke  v.  U.  S.  3  Mas.,  446.) 


The  title   of  the    "Sixth  Auditor"   was 

chajiged  to  "Auditor  for  the  Post  Office  Depart- 
ment," by  act  of  July  31,  1894,  section  3  (28 
Stat.,  205). 

Navy  mail  clerks  and  assistant  Navy  mail 
clerks  are  to  perform  such  postal  duties  as  may 


be  authorized  by  the  Postmaster-General,  and 
to  give  bond  in  such  penal  sum  as  the  Post- 
master-General may  prescribe.  (Act  May  27, 
1908,  34  Stat.,  417,  as  amended  bv  act  Aug.  24, 
1912,  sees.  3  and  11,  37  Stat.,  554,'  560.) 


Sec.  398.  [Postal  arrangements  with  foreign  countries.]  For  the  purpose 
of  making  better  postal  arrangements  with  foreign  countries,  or  to  counteract 
their  adverse  measures  affecting  our  postal  mtercourse  with  them,  the  Post- 
master-General, by  and  with  the  advice  and  consent  of  the  President,  may 
negotiate  and  conclude  postal  treaties  or  conventions,  and  may  reduce  or 
increase  the  rates  of  postage  on  mail-matter  conveyed  between  the  United 

(8  June,  1872,  c.  335,  s.  167,  v.  17,  p.  304.) 

label  may  also  be  dispatched  in  the  same  man- 
ner to  Canada,  Cuba,  Mexico,  the  Republic  of 
Panama,  and  to  the  city  of  Shanghai,  China." 
(Sec.  518,  Postal  Laws  and  Regulations,  1913; 
see  also  file  3980-1185,  Jan.  15,  1916.) 

Newfoundland  is  not  a  part  of  Canada,  but  a 
separate  province  of  the  British  Empire;  and 
official  letters  to  Newfoundland  are  required  to 
be  prepaid.     (File  7538-176,  Aug.  2,  1915.) 

See  section  388,  Revised  Statutes,  and  laws 
noted  thereunder. 


States  and  foreign  countries 

Articles  25  and  26  of  the  Universal  Postal  Con- 
vection, concerning  the  handling  of  closed 
mails  to  and  from  vessels  of  the  Navy,  are 
published  in  Naval  Instructions,  1913, 
article  5442. 

Customs  regulations  relating  to  mails  are  pub- 
lished in  articles  5421   and   5423,    Naval 
instructions,  1913. 
Under  the  Universal  Postal  Convention 

"official  correspondence  which  is  admissible  to 

the  domestic  mails  under  penalty  envelope  or 


329 


TITLE  X. 
THE  DEPARTMENT  OF  THE  NAVY. 


Sec.  Sec. 

415.  Establishment  of  the  Department  of  the  426. 

Navy.  427. 

416.  Clerks  and  employees. 

417.  Duties  of  the  Secretary  of  the  Navy.  428. 

418.  Department  property,  books,  and  records.  429. 

419.  Establishment  of  bureaus  and  distribution 

of  business.  430. 

420.  Orders    considered    as    emanating    from  431. 

Secretary.  432. 

421.  Chiefs  of  bureaus.  433. 

422.  Bureaus  of  Yards  and  Docks,  Equipment, 

Navigation,  and  Ordnance.  434. 

423.  Bureau  of  Construction  and  Repair.  435. 

424.  Bureau  of  Steam  Engineering.  436. 

425.  Bureau  of  Supplies  and  Accounts. 

Sec.  416.  [Establishment  of  the  Department  of  the  Navy.]  There  shall  be 
at  the  seat  of  Government  an  Executive  Department,  to  be  known  as  the 
Department  of  the  Navy,  and  a  Secretary  of  the  Navy,  who  shall  be  the  head 
thereof.— (30  Apr.,  1798,  c.  35,  s.  1,  v.  1,  p.  553.) 


Bureau  of  Medicine  and  Surgery. 

Use  of  engraved  plates  of  Wilkes's  Ex- 
pedition. 

Collection  of  enemies'  flags. 

Reports  to  be  made  by  Secretary  of  the 
Navy. 

Estimates  for  expenses. 

Hydrographic  office. 

Maps,  charts,  etc. 

Money  received  from  sale  of  maps,  charts, 
etc. 

Naval  Observatory. 

Meridans. 

Nautical  Almanac. 


As  to  "origin  and  grswth  of  executive  depart- 
ments," see  note  to  section  158,  Revised 
Statutes. 
For  "provisions  applicable  to  all  the  executive 
departments,"  see  Title  IV,  sections 
158-198,  Revised  Statutes. 

The  permanent  "seat  of  Govemment" 
is  the  District  of  Columbia  (sec.  1795,  R.  S.). 
"All  offices  attached  to  the  seat  of  Government 
shall  be  exercised  in  the  District  of  Columbia, 
and  not  elsewhere,  except  as  otherwise  ex- 
pressly provided  by  law"  (sec.  1796,  R.  S.). 
In  case  of  a  contagious  or  epidemic  disease  at 
the  seat  of  Government,  the  President  is  author- 
ized to  remove  the  public  ofiices  therefrom. 
(Sec.  4798,  R.  S.;  see  also  sees.  34,  1776,  4797, 
and  4799,  R.  S.) 

The  term  "executive  department"  refers 
only  to  what  may  be  called  the  department 
proper  located  at  Washington,  and  does  not 
include  those  adjuncts  of  a  department  en- 
gaged wholly  in  field  service.  (4  Comp.  Dec, 
551;  see  also  5  Comp.  Dec,  667;  7  Comp.  Dec, 
126.) 

The  several  executive  departments  are  by 
law  established  at  the  seat  of  Government; 
they  have  no  existence  elsewhere.  Only  those 
bureaus  and  offices  can  be  deemed  bureaus  and 
offices  in  any  of  these  departments  which  are 
constituted  such  by  law  of  its  organization. 
The  department,  with  its  bureaus  or  offices,  is 
in  the  contemplation  of  the  law  an  establish- 
ment distinct  from  the  branches  of  the  public 
service  and  the  offices  thereof  which  are  under 
its  supervision.  (15  Op.  Atty.  Gen.,  262,  267: 
26  Op.  Atty.  Gen.,  254.) 


The  Marine  Corps  headquarters  is  a  part  of 
the  Naval  Establishment,  but  it  is  not  a  part 
of  the  Navy  Department  as  established  at  the 
seat  of  Government;  it  is  under  the  super- 
vision of  the  executive  department,  but  that 
relation  to  the  department  is  not  the  same  as 
being  a  part  of  it.  (11  Comp.  Dec,  558;  file 
4600,  Apr.  10,  1906;  file  21686,  Apr.  11,  1906.) 

A  clerk  in  a  navy  yard  is  not  a  clerk  in  an 
executive  department,  although  the  navy  yard 
is  under  the  supervision  of  one  of  the  executive 
departments.     (26  Op.  Atty.  Gen.,  254.) 

Employees  of  the  navy  yard  and  gun  factory 
in  Washington  are  under  the  Navy  Department, 
but  are  not  a  part  of  an  executive  department. 
(11  Comp.  Dec,  97.) 

For  other  cases,  see  note  to  section  159, 
Revised  Statutes. 

State,  War,  and  Navy  Building. — The 
Navy  Department  was  to  occupy  such  rooms 
in  the  State,  War,  and  Navy  Building  as  were 
assigned  for  its  use  by  a  joint  committee  of 
Congress,  pursuant  to  act  of  August  5,  1882, 
section  6  (22  Stat.,  256).  Reapportionment  at 
any  time  of  space  in  said  bmlding  was  author- 
ized by  act  of  May  10,  1916  (39  Stat.,  94). 

Navy  Department  Annex. — Additional 
quarters  to  be  rented  for  the  Navy  Departroetut, 
for  a  period  not  exceeding  10  years  from  July  1, 
1913,  at  an  annual  rental  of  not  exceecling 
$30,000,  %vere  authorized  to  be  contracted  for  by 
theSecretaryof  theNavybyactof  March4, 1913 
(37  Stat.,  771).  [Such  additional  quarters, 
designated  by  law  as  the  "Na^y  Department 
Annex,  New  York  Avenue  near  Seventeenth 
Street  Northwest, ' '  were  occupied  by  the  Navy 


54641°— 22- 


-22 


331 


Sec.  416. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


Department  pursuant  to  the  act  cited,  in  lieu  of 
quarters  formerly  usetl  aa  an  annex  by  the  Navy 
Department  ana  knomi  as  the  "Mills  Builci- 

Temporary  office  buihiiiigs  for  use  of  the  War 
and  Navy  Departments  in  Henry  Park  were 
authorized  bv  act  of  October  6,  1917  (39  Stat., 
368)  and  in  Potomac  Park  bv  act  of  March  28, 
1918  (40  Stat.,  483). 

A  superintendent  of  the  State,  War,  and 
Navy  Department  Building,  to  be  detailed 
from  the  Engineer  Corps  of  the  Army  or  Navy, 
was  authorized  by  act  of  March  3, 1883  (22  Stat., 
563);  and  his  duties  were  extended  to  include 
the  "Na\'y  Department  Annex,  or  Mills  Build- 
ing/' by  act  May  22,  1908  (35  Stat.,  218),  and 
to  include  temporary  additional  buildings  by 
act  of  March  28,  1918  (40  Stat.,  482,  483).  (See 
notes  to  sees.  1390,  1413,  and  1462,  R.  S.;  and 
see  act  Jime  4,  1918,  40  Stat.,  598). 

The  Secretaries  of  State,  War,  and  Navy 
constitute  a  commission  for  the  care  and  super- 
vision of  the  State,  War,  and  Navy  Department 
Building;  the  duties  of  the  superintendent  of 
the  building  being  discharged  under  their  direc- 
tion.    (Act  Mar.  3,  1883,  22  Stat.,  553.) 

Laws  and  regulations  VTithin  the  District 
of  Columbia  for  protection  of  property  and 
preservation  of  peace  and  order  were  extended 
to  all  public  buildings  and  gtounds  belonging 
to  the  United  States  within  the  said  district,  by 
act  of  July  29,  1892,  section  15  (27  Stat., 
325). 

Disorderly  and  unlawful  conduct  in  public 
buildings  within  the  District  of  Columbia,  or 
the  injury  of  pipes,  hydrants,  etc.,  therein,  is 
punishable  by  fine  of  not  more  than  $50.  (Act 
July  29,  1892,  sec.  15,  27  Stat.,  325.) 

Pubhc  buildings  not  to  be  closed  as  mark 
of  respect  for  deceased  exofiicials  (act  Mar.  3, 
1893,  sec.  4,  27  Stat.,  715);  nor  to  be  draped  in 
mourning  (same  act,  sec.  3). 

The  Na\-y  Department  is  required  to  be  kept 
open_ during  stated  hours  for  the  transaction  of 
public  business.     (See  sec.  162,  R.  S.) 

Buildings  rented. — Annual  report  to  Con- 
gress of  buildings  rented  is  required  of  heads  of 
departments  by  act  of  March  3,  1883  (22  Stat., 
552) ;  act  of  July  16, 1892  (27  Stat. ,  199) ;  and  act 
of  May  1,  1913,  section  3  (38  Stat., 3). 

Contracts  for  the  renting  of  buildings  in  Wash- 
ington are  prohibited  in  the  absence  of  .specific 
authority  (Act  Mar.  3,  1877,  19  Stat.,  370). 

"Whenever  buildings  are  rented  for  public 
use  in  the  District  of  Columbia,  the  executive 
departments  are  authorized,  whenever  it  shall 
be  advantageous  to  the  public  interest,  to  rent 
others  in  their  stead:  Provided,  That  no  increase 
in  the  number  of  buildings  now  in  use,  nor  in 
the  amounts  paid  for  rent,  sliall  result  there- 
from."    (Act  Aug.  5,  1882,  22  Stat.,  241.) 

Heads  of  departments  are  authorized  to  con- 
tract for  the  lease  of  modern  fireproof  storage 
accommodations  in  the  District  of  Columbia 
payable  from  appropriations  for  rent  of  build- 
ings for  their  departments.  (Act  Mar.  2,  1913, 
37  Stat.,  718.) 

The  Department  of  the  Navy  was  orig- 
inally established  by  act  of  April  30,  1798  (1 
Stat.,  553).  Prior  to  that  date  its  duties  were 
discharged  bv  the  Secretary  of  War.  (See  note 
to  sec.  158,  R.  S.) 


The  designation,  "Navy  Department,"  in- 
stead of  "Department  of  the  Navy,"  is  now 
exclusively  used  by  Congress  in  legislation 
relating  to  this  department. 

The  Department  oi  the  Navy  is  sixth  in  order 
of  precedence  among  the  executive  depart- 
ments.    (Sec.  158,  11.  S.) 

Not  a  naval  station. — The  Navy  Depart- 
ment, Washington,  D.  C,  is  not  a  naval  station 
within  the  meaning  of  section  1386,  Revised 
Statutes  [now  repealed]  allowing  clerks  to 
"paymasters  at  stations."  The  word  "station" 
as  used  in  that  section  means  "naval  station." 
(13Comp.  Dec,  693.) 

Secretary  of  the  Navy. — The  compensa- 
tion of  the  Secretary  of  the  Navy  is  fixed  at 
$12,000  a  year,  by  act  of  February  26,  1907  (34 
Stat.,  993).     (See  note  to  section  160,  R.  S.) 

The  statutes  do  not  provide  by  whom  the 
Secretary  of  the  Navy  is  to  be  appointed.  In 
the  absence  of  such  a  provision,  his  appoint- 
ment is  vested  in  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate.  (See 
note  to  Constitution,  Art.  II,  sec.  2,  clause  2, 
In  the  cases  of  the  Postmastei  General,  the  Sec- 
retary of  Agriculture,  the  Secretary  of  Com- 
merce, and  the  Secretary  of  Labor,  it  is  specifi- 
cally provided  by  statute  that  they  are  to  be 
appointed  by  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate.  See  sec.  388, 
R.  S.,  and  acts  of  Feb.  9,  1889,  25  Stat.,  659; 
Feb.  14,  1903,  32  Stat.,  825;  and  Mar.  4, 1913, 
37  Stat.,  736.) 

The  Secretary  of  the  Navy  is  required  to  take 
the  oath  of  office  prescribed  by  section  1757, 
Revised  Statutes,  which  applies  to  all  persona 
appointed  to  any  office  of  honor  or  profit  in  the 
civil,  military,  or  naval  service.  (See  act  May 
13,  1884,  sec.  2,  23  Stat..  22.) 

The  term  for  which  the  Secretary  of  the  Navy 
is  appointed  is  not  fixed  by  statute.  [The  law 
establishing  the  Department  of  Commerce  and 
Labor  (now  Department  of  Commerce)  provided 
for  the  appointment  of  a  head  of  that  depart- 
ment, "  whose  term  and  tenure  of  office  shall  be 
like  that  of  the  heads  of  the  other  executive  de- 
partments." (Act  Feb.  14,  1903,  32  Stat.,  825). 
A  similar  provision  was  embodied  in  the  act 
creating  the  Department  of  Labor.  (Act  Mar. 
4,  1913,  37  Stat.,  736.)  Section  388,  Revised 
Statutes,  provided  that  the  term  of  the  Post- 
master General  shall  be  for  and  during  the  term 
of  the  President  by  whom  appointed,  and  one 
month  thereafter,  unless  sooner  removed.] 

The  Secretary  of  the  Navy  is  removable  by  the 
President:  "  When  the  Navy  Department  was  es- 
tablished in  the  year  1798  (1  Stat. ,  553),  pro  vision 
is  made  for  the  charge  and  custody  of  the  books, 
records,  and  documents  of  the  department  in 
case  of  vacancy  in  the  office  of  Secretary  by  re- 
moval or  otherwise.  It  is  not  here  said  by  re- 
moval by  the  President,  as  is  done  with  respect 
to  the  heads  of  the  other  departments;  and  yet 
there  can  be  no  doubt  that  he  holds  his  office  by 
the  same  tenure  as  the  other  Secretaries  and  is 
removable  by  the  President.     The  change  of 

Ehraseology  arose,  probably,  from  its  having 
ecome  the  settled  and  well  understood  con- 
struction of  the  Constitution  that  the  power  of 
removal  was  vested  in  the  President  alone  in 
such  cases,  although  the  appointment  of  the 
officer   was   by   the    President   and    Senate." 


332 


Navy  Department. 


PL  f.  REVISED  STATUTES. 


Sec.  415. 


(Matter  of  Hennen,  13  Pet.,  259.  See  also  note 
to  Constitution,  Art.  II,  sec.  2,  clause  2.) 

In  case  of  the  death,  resignation,  absence,  or 
sickness  of  the  Secretary  of  the  Navy,  unless 
otherwise  directed  by  the  President,  the  duties 
of  the  office  devolve  upon  the  Assistant  Secre- 
tary of  the  Navy  (sec.  177,  R.  S.).  During  the 
temporary  absence  of  the  Secretary  and  the  As- 
sistant Secretary  of  the  Navy,  the  Chief  of  Naval 
Operations  shall  be  next  in  succession  to  act  as 
Secretary  of  the  Navy.  (Act  Mar.  3,  1915,  38 
Stat.,  929,  amended  by  act  Aug.29, 1916, 39  Stat., 
558.)  The  President,  however,  maydirectsome 
other  officer  in  the  Navy  Department,  or  in  some 
other  department,  to  perform  the  duties  of  the 
Secretary  of  the  Navy  (sec.  179,  R.  S.).  But 
neither  the  Assistant  Secretary  of  the  Navy 
nor  any  other  officer  designated  by  the  Presi- 
dent, may  perform  the  duties  of  the  Secretary 
of  the  Navy,  in  case  of  the  latter 's  death  or  res- 
ignation, for  a  longer  period  than  30  days  (sec. 
180,  R.  S.);  except  where  the  vacancy  hap- 
pens during  a  recess  of  the  Senate  (sec.  181, 
R.  S.).  The  officer  temporarily  performing 
the  duties  of  the  Secretary  of  the  Navy  is  not 
thereby  entitled  to  additional  compensation 
(sec.  182,  R.  S.). 

During  the  temporary  absence  of  the  Secre- 
tary and  Assistant  Secretary  of  the  Navy  and 
the  Chief  of  Naval  Operations  the  duties  of 
the  Secretary  of  the  Navy,  by  direction  of  the 
President,  are  to  be  performed  by  the  following 
designated  persons,  in  the  order  named:  The 
Chief  of  the  Bureau  of  Navigation;  in  his 
absence,  the  Chief  of  the  Bureau  of  Ordnance; 
and  in  the  absence  of  those  two,  the  Chief  of  the 
Bureau  of  Engineering.  (File  1159-765,  Bu. 
Nav.,  July  2,  1915;  Navy  Regs.,  1920,  art. 
392,  as  amended;  see  also  file  22724-40,  Apr. 
24,  1919.) 

Officers  of  the  Navy  on  duty  in  the  Navy 
Department  as  aids  or  advisers  of  the  Secretary 
of  the  Navy,  but  who  do  not  hold  any  office  in 
the  department  to  which  they  have  been  ap- 
pointed pursuant  to  law,  can  not  be  legally 
designated  by  the  President  to  act  as  Secre- 
tary of  the  Navy  during  the  latter's  absence. 
Wliile  these  aids,  as  rear  admirals,  captains,  or 
commanders,  are  officers  in  the  public  service 
of  the  Government,  they  are  not  officers  in  the 
department  eligible  for  these  temporary  ap- 
pointments, and  do  not  come  within  the  class 
designated  in  section  179,  Revised  Statutes. 
They  perform  no  duties  imposed  upon  them  by 
law;  they  hold  no  office  in  the  department  cre- 
ated by  act  of  Congress;  they  are  agents  ap- 
pointed by  the  Secretary,  and  removable  by 
him  at  Ms  pleasure,  to  procure  information 
needed  to  aid  in  the  performance  of  his  own 
official  duties.  There  is  no  more  authority  to 
authorize  them  to  perform  the  duties  of  the  Sec- 
retary of  the  Navy  than  there  is  to  authorize  any 
officer  of  the  Navy  not  connected  directly  with 
the  business  of  the  department.  (28  Op.  Atty. 
Gen._,  95.)  [The  "aids"  referred  to  in  this 
opinion,  namely,  "Aid  for  Operations,"  "Aid 
for  Personnel,"  "Aid  for  Material,"  and  "Aid 
for  Inspections,"  were  authorized  by  Changes 
in  Navy  Regulations  No.  6,  of  November  18, 
1909,  revoked  by  Changes  in  Navy  Regulations 
No.  5,  July  15,  1915  by  which  latter  Changes 
their  duties  were  transferred  to  other  officers.] 


Officers  of  the  Navy  are  appointed,  by  pro- 
vision of  law,  to  perform  duties  in  the  Navy 
Department  which  constitute  them  officers  in 
the  department,  as,  for  example,  the  chiefs  of 
bureaus  provided  for  by  section  421,  Revised 
Statutes.  These  bureau  chiefs  are  officers  hold- 
ing offices  in  the  Navy  Department  which  have 
been  created  by  law,  and  are  witliin  the  class 
designated  in  section  179,  Revised  Statutes,  as 
eligible  for  appointment  to  temporary  vacan- 
cies in  the  ofhce  of  the  Secretary  of  the  Navy. 
(28  Op.  Atty.  Gen.,  95.) 

For  other  decisions  concerning  officers  tem- 
porarily acting  as  Secretary  of  the  Navy,  see 
notes  to  sections  177-182  and  868,  Revised 
Statutes. 

"It  is  very_  clear  that  the  office  of  Secretary 
of  the  Navy  is  a  civil  office.  Congress  has  not 
attempted  to  confine  the  appointing  power  to 
any  class  or  profession  in  choosing  the  incum- 
bent for  that  position."  (18  Op.  Atty.  Gen., 
176.  See  also  U.  S.  v.  Burns,  12  Wall.,  246, 
holding  that  the  Secretaiy  of  War  "is  not  in  the 
military  service,"  but,  "on  the  contrary,  is  a 
civil  officer";  and  see  1  Op.  Atty.  Gen.,  457, 
holding  that  the  Secretary  of  War  is  not  required 
to  perform  duties  in  the  field,  does  not  compose 
any  part  of  the  Army,  and  has  no  service  to  per- 
form that  may  not  be  done  at  the  seat  of  govern- 
ment.) 

The  Secretary  of  the  Navy  is  sixth  in  or- 
der of  succession  to  the  powers  and  duties  of 
the  Presidency,  in  case  of  the  removal,  death, 
resignation,  or  inability  of  both  the  President 
and  Vice  President  (act  of  Jan.  19,  1886,  24 
Stat.,  1);  he  is  ex  officio  a  member  of  the  Smith- 
sonian Institution  (sec.  5579,  R.  S.,  as  amend- 
ed); is  a  member  of  the  Council  of  National 
Defense  (act  Aug.  29,  1916,  39  Stat.,  649),  and 
of  the  Commission  for  Memorial  to  John  Erics- 
son (act  Aug.  31,  1916,39  Stat.,  671);  is  to  ex- 
ercise control  of  the  Aircraft  Board  (act  Oct.  1, 
1917,  40  Stat.,  296);  is  privileged  to  draw  books 
from  the  Library  of  Congress  (sec.  94,  R.  S.); 
and  is  entitled  to  a  set  of  the  Supreme  Court 
Reports  for  official  use,  to  be  preserved  and 
turned  over  to  his  successor  in  office  (sec.  227, 
Judicial  Code,  act  Mar.  3,  1911,  36  Stat.,  1154.) 

As  to  duties  of  the  Secretary  of  the  Navy,  see 
sections  417  and  418,  Revised  Statutes,  and 
notes  thereto. 

For  decisions  relating  generally  to  heads  of 
departments,  see  notes  to  Constitution,  Article 
II,  section  2,  clause  1;  Article  II,  section  1, 
clause  1;  and  section  158,  Revised  Statutes. 

Assistant  Secretary  of  the  Navy. — The 
office  of  "Assistant  Secretary  of  the  Navy"  was 
created  by  act  of  July  31,  1861  (12  Stat.,  282), 
the  duties  thereof  to  be  such  as  were  prescribed 
by  the  Secretary  of  the  Navy  or  required  by 
law.  An  additional  Assistant  Secretary  of  the 
Navy  was  authorized,  to  serve  for  a  period  of 
six  months,  by  act  of  May  26,  1866  (14  Stat., 
54).  The  office  of  Assistant  Secretaiy  of  the 
Navy  was  abolished  by  act  of  March  3,  1869  (15 
Stat.,  296).  An  Assistant  Secretary  of  the  Navy 
was  again  authorized  by  act  of  August  5, 1882(22 
Stat.  ,243) ,  wliich  was  repealed  by  act  of  March  3, 
1883  (22  Stat.,  550)  [no  a]>pointment  ha\ang  in 
the  meantime  been  made]. 

The  present  law  is  contained  in  the  act  of 
July  11,  1890  (26  Stat.,  254),  which  provides  for 


333 


Sec.  416. 


Pi.  2.  REVISED  STATUTES. 


Navy  Department. 


'■;iii  Assistant  Secretar>-  of  the  Navy,  to  be 
appointed  from  civil  liie  by  the  President,  by 
anil  with  the  advice  and  consent  of  the  Senate" ; 
and  the  act  of  Manh  3,  18!)1.  (2G  Stat.,  934), 
■\vliich  provides  that  the  Assistant  Secretary  of 
the  Navy  shall  ''i)erforui  such  duties  as  may  be 
prescribed  by  the  Secretary  of  the  Navy  or 
required  by  law." 

It  ha3  been  found  in  regard  to  the  heads  of 
depart nients  that  it  is  impossible  for  a  single 
individual  to  perform  in  person  all  the  duties 
imposed  on  liim  by  his  ollice.  Hence,  statutes 
have  been  made  creating  the  olhce  of  assistant 
secretaries  for  all  the  heads  of  departments. 
It  would  be  a  very  sinsjular  doctrine,  and  sub- 
versive of  the  purposes  for  which  these  latter 
oliices  were  createcl,  if  their  acts  are  to  be  held 
of  no  force  until  ratified  by  the  principal  Secre- 
tary or  head  of  the  department.  It  was  to  re- 
lieve the  overburdened  principal  of  some  part 
of  those  duties  that  the  office  of  assistant  was 
created.  (Parish  v.  U.  S.,  100  U.  S.,  504; 
McCollumr.  U.  S.,  17  Ct.  Cls.,  101.) 

The  duties  of  these  assistants  are  generally 
not  specifically  defined  by  law,  but  are  left  to 
the  direction  and  regulation  of  superior  officers. 
Such  .assistants  are  supposed  to  have  the  confi- 
dence of  those  immediately  above  them  and 
to  be  oflicially  engaged  in  carrying  out  the  will 
of  their  principals  iu  the  details  of  the  work  of 
the  department  in  which  they  are  employed. 
When  their  acts,  decisions,  or  directions  are 
reduced  to  writing,  signed  by  them  in  their 
official  capacity,  filed  or  recorded  among  the 
archives  of  the  department,  and  do  not  ajipear 
to  have  been  revoked,  annulled,  or  modified 
by  the  head  of  the  department,  they  must  be 
held,  in  the  absence  of  fraud,  mistake,  or  irreg- 
ularity, to  have  been  done  within  the  scope  of 
the  authority  of  the  assistant,  and  to  be  as 
binding  on  the  Government  as  though  expressly 
ordered  by  the  superior.  Especially  will  this 
be  held  when  copies  of  such  written  documents 
are  sent  out  by  the  head  of  the  department  in 
which  they  are  found,  without  objection  on  his 
part  to  their  having  been  made  in  the  due  and 
regular  course  of  business  under  his  control. 
(McCollum  V.  U.  S.,  17  Ct.  Cls.,  101.) 

A  statute  (sec.  245,  R.  S.)  providing  that  the 
Assistant  Secretary  of  a  department  shall  per- 
form certain  specified  duties,  and  such  other 
duties  as  may  be  prescribed  by  the  Secretary 
or  by  law,  does  not  confine  the  powers  of  the 
assistant  to  duties  of  a  like  nature  with  those 


enumerated,  especially  when  read  in  connec- 
tion witli  sections  101  and  177,  Revised  Stat- 
utes, which  impose  more  enlarged  duties  in 
certain  contingencies.  (Shillito  Co.  v.  Mc- 
Clung,  51  Fed.  Rep.,  8G8.) 

Where  the  law  provides  that  the  Assistant 
Secretary  in  a  department  is  to  perform  such 
duties  "as  shall  be  prescribed  by  the  Secretary, 
or  may  be  required  by  law,"  it  empowers  the 
Secretary  to  make  the  assistant,  as  it  were,  his 
deputy  m  all  things.  So  long  as  the  powers 
delegated  to  the  assistant  by  his  su))erior  remain 
Tinrevoked,  the  authority  of  the  former  is  coor- 
dinate and  concurrent  with  tliat  of  the  latter. 
As  to  the  authority  so  prescribed  tlie  Assistant 
Secretary  has  the  full  power  of  the  Secretary 
himself.  Accordingly,  the  Assistant  Secretary, 
while  in  the  exercise  of  authority  prescribed 
for  him  by  the  Secretary,  is  authorized  to  give 
orders  for  purchases  payable  from  the  contin- 
gent fund  and  to  approve  vouchers  therefor, 
although  under  section  3()83,  Revised  Statutes, 
heads  of  departments  are  alone  authorized  to 
give  such  orders  and  approve  such  vouchers. 
(18  Op.  Atty.  Gen.,  432,  modifying  18  Op. 
Atty.  Gen.,  424.) 

So  long  as  the  powers  delegated  to  the  Assist- 
ant Secretary  by  his  superior  remain  unre- 
voked, the  authority  of  the  former  is  coordinate 
and  concurrent  with  that  of  the  latter.  When 
the  assistant  acts  at  a  time  the  Secretary  is  not 
absent  or  sick,  under  a  regulation  made  by  the 
Secretary  prescribing  his  powers  and  duties,  he 
should  sign  with  his  own  proper  oflicial  desig- 
nation. When  the  Secretary  is  absent  or  sick, 
if  the  assistant  is  in  charge  of  the  department 
in  pursuance  of  sections  177  or  179,  Revised 
Statutes,  he  should  sign  as  Acting  Secretary. 
(19  Op.  Atty.  Gen.,  133.) 

As  to  legal  proceedings  which  may  be  insti- 
tuted in  the  case  of  an  officer  who  signs  as  "Act- 
ing Secretary"  while  the  Secretary  is  at  the 
department,  see  note  to  section  868,  Re\Tsed 
Statutes. 

An  officer  temporarily  performing  the  duties 
of  his  superior  in  accordance  \vith  law  is  au- 
thorized to  serve  as  member  of  a  board  which 
by  statute  included  his  superior  in  its  member- 
ship. (20  Op.  Atty.  Gen.,  483;  see  also  file 
22724--i0,  Apr.  24,  1919.) 

For  other  decisions  as  to  authority  of  Assist- 
ant Secretary,  see  note  to  section  177,  Revised 
Statutes. 


Sec.  416.  [Clerks  and  Employees.     Repealed.] 


This  section  provided  as  follows: 
"Skc.  410.  Theie  shall  be  in  the  Department 
of  the  Navy: 

"One  chief  clerk,  at  a  salary  of  two  thousand 
five  hundred  dollars  a  year,  so  long  as  there  is 
no  A.ssistant  Secretary  of  the  Navy,  and  at  a 
salary  of  two  thousand  two  hundred  dollars  a 

Sear  when  there  is  an  Assistant  Secretary  of  the 
avy. 

"One  disbursing  clerk. 

"One  superintendent  of  the  Navy  Depart- 
ment building,  at  a  salary  of  two  hundred  and 
fifty  dollars  a  year. 

"In  the  Bureau  of  Yards  and  Docks: 
"One  civil  engineer,  at  a  salary  of  three  thou- 
sand dollars  a  year. 


"One  chief  clerk,  at  a  salary  of  one  thousand 
eight  hundred  dollars  a  year. 

"One  draughtsman,  at  a  salary  of  one  thou- 
sand eight  hundred  dollars  a  year. 

"In  the  Bureau  of  Equipment  and  Re- 
cruiting: 

"One  chief  clerk,  at  a  salary  of  one  thousand 
eight  hundred  dollars  a  year. 

"In  the  Bureau  of  Construction  and  Repair: 

"One  chief  clerk,  at  a  salary  of  one  thousand 
eight  hundred  dollars  a  year. 

"One  draughtsman,  at  a  salary  of  one  thou- 
sand eight  hundred  dollars  a  year. 

"In  the  Bureau  of  Steam  Engineering: 

"One  chief  clerk,  at  a  salary  of  one  thousand 
eight  hundred  dollars  a  year. 


334 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  416. 


"Oue  draughtsman,  at  a  salary  of  one  thou- 
sand eight  hundred  dollars  a  year. 

"One  assistant  draughtsman,  at  a  salary  of 
one  thousand  two  hundred  dollars  a  year. 

"In  the  Biu-eau  of  Navigation: 

"One  chief  clerk,  at  a  salary  of  one  thousand 
eight  hundred  dollars  a  year. 

"In  the  Bureau  of  Ordnance: 

"One  chief  clerk,  at  a  salary  of  one  thousand 
eight  hundred  dollars  a  year. 

"One  draughtsman,  at  a  salary  of  one  thou- 
sand eight  hundred  dollars  a  year. 

"In  the  Bureau  of  Provisions  and  Clothing: 

"One  chief  clerk,  at  a  salary  of  one  thousand 
eight  hundred  dollars  a  year. 

"In  the  Bureau  of  Medicine  and  Surgery: 

"One  chief  clerk,  at  a  salary  of  one  thousand 
eight  hundred  dollars  a  year."  5  July,  1862, 
c.  134,  V.  12,  p.  510;  2  .July.  1864,  c.  219,  s.  4, 
V.  13,  p.  373;  23  Julv,  1866,  c.  208,  s.  8,  v.  14, 
p.  207;  3  Mar.,  1871,'  c.  113,  s.  3,  v.  16,  p.  494; 
3  Mar.,  1873,  c.  226,  s.  1,  v.  17,  pp.  501,  502. 

It  is  superseded  and  repealed  by  the 
following  laws: 

Act  August  5,  1882,  section  4  (22  Stat.,  255): 
"That  no  civil  officer,  clerk,  draughtsman, 
cop\dst,  messenger,  assistant  messenger,  me- 
chanic, watchman,  laborer,  or  other  employee 
shall  after  the  first  day  of  October  next  be  em- 
ployed in  any  of  the  executive  departments,  or 
subordinate  bureaus  or  offices  thereof  at  the  seat 
of  government,  except  only  at  such  rates  and  in 
such  numbers,  respectively,  as  may  Ije  specific- 
ally appropriated  for  by  Congress  for  such  cler- 
ical and  other  personal  services  for  each  fiscal 
year;  *  *  *  and  after  the  first  day  of  Oc- 
tober next  *  *  *  all  laws  and  parts  of  laws 
authorizing  the  employment  of  officers,  clerks, 
draughtsmen,  copj-ists,  messengers,  assistant 
messengers,  mechanics,  w-atchmen,  laborers,  or 
other  employees  at  a  different  rate  of  pay  or  in 
excess  of  the  numbers  authorized  by  appropria- 
tions made  by  Congress,  be  and  they  are  hereby, 
repealed    *    *    *." 

Act  of  August  23.  ]  912,  section  5  (37  Stat. ,  414) : 
' '  Any  person  violating  section  four  of  the  legis- 
lative, executive,  and  judicial  appropriation 
Act  approved  August  fifth,  eighteen  hundred 
and  eighty-two  (Statutes  at  Large,  volume 
twenty-two,  page  two  himdred  and  fifty-five), 
shall  be  summarily  removed  from  office,  and 
may  also  upon  conviction  thereof  be  punished 
by  a  fine  of  not  more  than  one  thousand  dollars 
or  bv  imprisonment  for  not  more  than  one  vear." 
Act  of  July  16. 1914  (38  Stat.,  509),  making  ap- 
propriations for  the  legislative,  executive,  and 
judicial  expenses  of  the  Government  for  the 
fiscal  year  1915:  "That  all  laws  or  parts  of  laws 
to  the  extent  they  are  inconsistent  with  rates  of 
salaries  or  compensation  appropriated  by  this 
Act  are  repealed,  and  the  rates  of  salaries  or 
compensation  of  officers  or  employees  herein 
appropriated  shall  constitute  the  rate  of  salary 
or  compensation  of  such  officers  or  employees, 
respectively,  until  otherwise  fixed  by  annual 
rate  of  appropriation  or  other  law." 

Act  of  March  4,  1915  (38  Stat.,  1049,  sec.  6), 

maldng  appropriations  for  the  legislative,  exec- 
utive, and  judicial  expenses  of  the  Government 
for  the  fiscal  year  1916:  "The  officers  and  em- 
ployees of  the  United  States  whose  salaries  are 
herein  appropriated  for  are  established  and  shall 


continue  from  year  to  year  to  the  extent  they 
shall  be  aj)pro])riatod  for  ]>y  Congress." 

Specific  changes  made  hj  existing  law  in 
this  section  of  the  Re\ised  Statutes  are  as  fol- 
lows: 

The  position  of  ■ '  superintendent  of  the  Na\'>' 
Department  building,  at  a  salary  of  $250  a  year," 
is  aboli-shed,  and  an  officer  of  the  Army  or  Navy 
is  detailed  as  superintendent  of  the  State,  War, 
and  Na\'A'  Department  Building,  pursuant  to  act 
of  March'  3,  1883  (22  Stat.,  553 1,  his  duties  being 
performed  under  the  supervision  of  a  commis- 
sion consisting  of  the  Secretaries  of  State,  War, 
and  Na\^  (.same  act),  and  embracing  the  "Navy 
Department  Annex,"  pursuant  to  act  of  May  22, 
1908  (35  Stat.,  218 1,  and  subsequent  appropria- 
tions in  the  annual  legislative,  executive,  and 
judicial  ajipropriation  act. 

The  Bureau  of  Equipment  and  Recruiting 
was  designated  as  Biu^eau  of  Equipment  in  an- 
nual appropi  iation  acts  commencing  with  the 
fiscal  year  1892.  By  naval  appropriation  acts  for 
the  fiscal  years  1912, 1913,  and  1914pro\-ision  was 
made  for  distribution  of  the  duties,  funds,  and 
employees  of  the  Bureau  of  Equipment  among 
the  other  bureaus  and  offices  of  the  Na\^'  Depart- 
ment, and  by  act  of  June  30,  1914  (38  Stat., 
408),  the  Bureau  of  Equipment  was  abolished. 
The  Bureau  of  Provisions  and  Clothing  was 
designated  as  Bureau  of  Supplies  and  Accounts 
by  act  of  July  19,  1892  (27  Stat.,  243,  245). 

The  Bureau  of  Steam  Engineering  was  desig- 
nated as  the  Bnreau  of  Engineering  bv  act  of 
June  4,  1920  (41  Stat.,  828)_. 

The  position  of  civil  engineer  in  the  Bureau 
of  Yards  and  Docks,  at  S3, 000  per  annum,  was 
appropriated  for  in  the  legislative,  executive, 
and  judicial  appropriation  acts,  including  the 
act  of  March  3,  1873  (17  Stat.,  501),  but  was 
omitted  from  the  legislative,  executive,  and 
judicial  appropriation  act  of  June  20,  1874  (18 
Stat.,  102),  and  subsequent  years.  (See  sec. 
1413,  R.  S.,  and  note  thereto,  concerning  Civil 
Engineer  Corps  of  the  Navy.) 

The  chief  clerk  in  the  office  of  the  Secretary 
of  the  Navy  receives  an  annual  salarj^  of  83,000, 
this  increased  compensation  being  first  pro- 
vided for  by  act  of  March  3,  1901  (31  Stat.,  992). 
Prior  to  that  act  his  salary  was  $2,500  a  year, 
although  an  Assistant  Secretary  of  the  Navy 
had  been  authorized,  without  interruption, 
since  the  act  of  July  11,  1890  (26  Stat.,  254). 
Thus  his  salarj'  was  not  reduced  to  $2,200  a 
year  "when  there  is  an  Assistant  Secretarj-  of 
the  Na\'3\  "  as  proA-ided  in  this  section. 

The  disbursing  clerk  in  the  Na\y  Depart- 
ment received  an  annual  salaiy  of  $2,250  bv 
the  act  of  March  3, 1883  (22  Stat!,  553)  and  sub- 
sequent acts,  including  the  act  of  May  29,  1920 
(41  Stat.,  663).  Specific  provision  for  salary 
of  a  disbursing  clerk  in  the  Navy  Department 
was  omitted  in  the  appropriation  act  of  March 
3,  1921  (41  Stat.,  1282),  the  position  of  " dis- 
bursing officer,"  at  $3,()00  per  annum  having  in 
the  meantime  been  created  from  lump  sum 
appropriations.  (See  estimates  of  appropria- 
tions, 1922,  p.  102.)  As  to  appointment  and 
compensation  of  disbursing  clerks  in  the  several 
departments,  see  section  176,  Re\ised  Statutes, 
and  note  thereto. 

The  chief  clerks  in  the  Bureaus  of  Yards 
and  Docks,  Construction   and  Repair,    Engi- 


335 


Sec.  416. 


Pt.  2.  REVISED  STATUTES. 


Navy  Department. 


neering,  Navigation,  Ordnance,  and  Medicine 
and  yurgerv'  nave  received  an  annual  salary 
of  i?2,li50  since  the  act  of  March  4, 1913  (37  Stat., 
7(18,  771). 

The  chief  clerk  in  the  Bureau  of  Supplies  and 
Accounts  was  designated  as  "'civilian  assistant" 
and  his  compensation  increased  to  $2,500  by 
act  of  Februarj-  25,  liio:?  (32  Stat.,  890). 

An  ''appointment  clerk."'  at  $1,800  per  an- 
num, ^va.s  provided  for  in  the  oflice  of  the  Sec- 
retary, Navy  Department,  hy  act  of  May  2S,  1896 
(29Stat.,  Iti4),  which  was  amended  by  actof  June 
8,  1896  (29  Stat.,  285),  providing  for  a  "clerk 
in  charge  of  civil  employments  and  labor  regu- 
lations at  navy  yards,  who  shall  also  perform  the 
duties  of  appointment  clerk  of  the  Nav-y  De- 
partment,'' at  $2,250  per  annum.  This  latter 
provision  was  repeated,  with  an  immaterial 
modilication  in  language,  in  the  acts  of  Febru- 
ary 19,  1897,  and  March  15,  1898,  but  has  since 
been  omitted  and  is  not  now  in  force.  An  "ap- 
pointment clerk,"  at  $2,000  per  annum  was 
appropriated  for  by  act  of  May  10,  1916  (39 
SUit.,  94;,  and  following  vears,  until  the  act  of 
March  1,  1919,  (40  Stat.,  1241),  which  increased 
the  salary  of  the  appointment  clerk  to  $2,250. 

The  following  additional  positions  are 
specilically  authorized  in  the  Navy  Depart- 
ment, at  annual  salaries  in  excess  of  $1,800,  by 
the  legislative,  executive,  and  judicial  appro- 
priation act  of  March  3,  1921  (41  Stat.,  1282): 

Olhce  of  the  Secretary:  Private  secretary  to 
Secretary,  $2,500;  clerk  to  Secretary,  $2,250; 
private  secretary  to  Assistant  Secretary,  $2,400; 
clerk  to  Assistant  Secretary,  $2,000;  printing 
clerk,  $2,000. 

Office  of  Solicitor:  Solicitor,  $4,000;  law 
clerks,  one  at  $2,500,  one  at  $2,400,  one  at  $2,250, 
and  two  at  $2,000  each. 

Office  of  Naval  Records  and  Library:  Chief 
clerk,  $2,000. 

Office  of  Judge  Advocate  General:  Attorneys, 
two  at  $2,500  each;  chief  law  clerk,  $2,250;  law 
clerks,  one  at  $2,200  and  one  at  $2,000. 

Office  of  Chief  ot  Naval  Operations:  Chief 
clerk,  $2,250. 

Office  of  Director  of  Naval  Communications, 
one  at  $4,000,  two  at  $3,000  each,  one  at  $2,500, 
and  three  at  $1,900  each. 

Bureau  of  Navigation:  Clerks,  one  at  $2,200, 
two  at  $2,000  each. 

Hydrographic  Office:  Hydrographic  engi- 
neer, $3,000;  assistants,  one  at  $2,200  and  one 
at  $2,000;  chief  engraver,  $2,000. 

Naval  Observatory:  Astronomers,  one  at 
$3,200  and  one  at  $2,800;  assistant  astronomers, 
one  at  $2,400  and  one  at  $2,000. 

Nautical  Almanac  Office:  Assistants  in  pre- 
paring for  publication  the  American  Ephemeris 
and  Nautical  Almanac,  one  at  $2,500  and  one 
at  $2,000. 

Bureau  of  Construction  and  Repair:  Chief 
of  section,  $2,000. 

Bureau  of  Supplies  and  Accounts:  Principal 
clerk,  $2,250;  two  chief  bookkeepers,  at  $2,000 
each. 

The  minor  positions  specifically  authorized 
in  the  A-arious  bureaus  and  offices  of  the  Navy 
Department  are  set  forth  in  detail  in  the  annual 
legislative,  executive,  and  judicial  appropria- 
tion act.  The  same  act.  in  addition,  author- 
izes the  employment  of  draftsmen  and  other 


technical  ser\  ices  in  the  Bureaus  of  Engineer- 
ing, Construction  and  Repair,  Ordnance,  and 
Yards  and  Docks,  to  be  paid  for  from  the  annual 
appropriations  made  by  the  naval  appropria- 
tion act  for  ''Engineering,''  "Construction  and 
re})air,''  "Ordnance  and  ordnance  stores,"  and 
Aarious  appropriations  and  allotments  under 
the  Bureau  of  Yards  and  Docks.  The  number 
of  employees  so  authorized  from  "lump-sum" 
appropriations  is  not  specified,  but  it  is  pro- 
vided that  the  rates  of  compensation  to  be  paid 
such  employees  in  the  Bureaus  of  Engi- 
neering, Construction  and  Repair,  and  Ord- 
nance shall  not  exceed  those  paid  under  similar 
authorization  j)rior  to  January  1.  1920.  The 
total  amounts  to  be  ])aid  for  this  purpose  are 
lixed  at  a  delinite  sum  each  year,  the  amounts 
authorized  for  the  fiscal  year  1922  by  the  legis- 
lative, executive,  and  judicial  appropriation 
actof  March  3,  1921  (41  Stat.,  1285, 1286),  being 
as  follows:  Bureau  of  Engineering,  $190,000; 
Bureau  of  Construction  and  Repair,  $275,000; 
Btu'eau  of  Ordnance,  $70,000;  Bureau  of  Yards 
and  Docks,  $200,000.  A  statement  of  the  per- 
sons employed  from  such  lump-sum  appropria- 
tions, their  duties,  and  the  compensation  paid 
to  each  is  required  by  a  provision  contained  in 
the  authorization  therefor  to  "be  made  to  Con- 
gress each  year  in  the  annual  estimates."  (See 
also  Act  Aug.  29,  1916,  39  Stat.,  558.) 

Additional  civil  force  in  the  Navy  Depart- 
ment '  'on  accomit  of  the  existing  emergency, ' ' 
was  authorized  in  various  appropriation  acts, 
commencing  Avith  the  act  of  June  15,  1917  (40 
Stat.,  202). 

Lump-sum  appropriations  are  not  avail- 
able for  payment  of  personal  services  at  a  rate 
of  compensation  in  excess  of  that  paid  for  the 
same  or  similar  services  during  the  preceding 
fiscal  year;  and  no  person  employed  at  a  specific 
salary  can  be  transferred  and  paid  from  a  lump- 
simi  appropriation  a  rate  of  compensation 
greater  than  such  specific  salary.  These 
restrictions  are  not  applica1)le  to  mechanics, 
artisans,  their  helpers  and  assistants,  laborers, 
or  any  other  employees  whose  duties  are  of 
similar  character  and  required  in  carrying  on 
the  various  manufacturing  or  constructing 
operations  of  the  Govermnent.  (Act  Aug.  26, 
1912,  sec.  7,  37  Stat..  626,  amended  by  act  Mar. 
4,  1913,  sec.  4,  37  Stat.,  790;  see  20  Comp.  Dec, 
128;  20  Comp.  Dec,  131:  20  Comp.  Dec,  10;  19 
Comp.  Dec,  248.  See  also  acts  Oct.  6, 1917,  40 
Stat.,  383  and  Mar.  28,  1918,  40  Stat.,  498.) 

Restrictions  on  employment  of  clerical 
services. — It  is  provided  in  the  annual  legis- 
lative, executive,  and  judicial  appropriation 
act  that  "no  part  of  any  appropriations  made 
for  the  naval  service  shall  be  expended  for  any 
of  the  purposes,  including  freight,  herein  pro- 
vided for  on  account  of  the  Navy  Department 
in  the  District  of  Columbia,  except  for  personal 
services  in  certain  bureaus,  as  herein  expressly 
authorized"  (namely,  the  services  of  draftsmen 
and  other  technical  services,  as  above  men- 
tioned, in  the  Bureaus  of  Engineering,  Con- 
struction and  Repair,  Ordnance,  and  Y'ards  and 
Docks).  See,  for  example,  act  of  March  3.  1921 
(41  Stat.,  1287). 

It  is  also  provided  by  the  annual  legislative, 
executive,  and  judicial  appropriation  act  that 
personal  services  or  other  expenditures  are  not 


336 


Navy  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  416. 


to  be  authorized  under  the  Hydrographic  Office 
in  the  District  of  Columbia,  except  as  appro- 
priated for  under  the  Navy  Department  in  that 
act,  or  under  appropriations  for  the  public 
printing  and  binding.  See,  for  example,  act  of 
March  3,  1921  (41  Slat.,  1285). 

It  is  also  provided  by  the  annual  naval  appro- 
priation act ' '  that  no  part  of  any  sum  appropri- 
ated by  this  act  shall  be  used  for  any  expense 
of  the  Na^-y  Department  at  Washington,  Dis- 
trict of  Columbia,  unless  specific  authority  is 
given  by  law  for  such  expenditure."  See,  for 
example,  act  of  June  4,  1920  (40  Stat.,  833). 

It  is  not  lawful  for  the  Secretary  of  the  Na\'y 
to  employ  in  the  Navy  Department  at  Wash- 
ington, D.  C,  and  pay  out  of  appropriations 
for  new  ships,  any  civilian  expert  aids,  addi- 
tional draftsmen,  writers,  copyists,  and  model 
makers,  except  as  specifically  authorized. 
(Act  Mar.  18,  1904,  sec.  1,  33  Stat.,  117.) 

Civil  employees  paid  from  appropriations  for 
the  Naval  EstabUslunent  or  other  branch  of  the 
public  service  outside  of  the  District  of  Co- 
lumbia, can  not  be  detailed  for  duty  in  any 
division  of  any  executive  department  in  the 
District  of  Colmnbia.  (Act  June  22,  1906, 
sec.  6,  34  Stat.,  449;  similar  provision  is  con- 
tained in  act  Aug.  5,  1882,  sec.  4,  22  Stat., 
255.)  [But  Washington  may  be  chosen  as  a 
local  headquarters  by  the  "field  force"  of  an 
executive  department,  provided  such  force  is 
not  used  to  augment  the  ' "  departmental  estab- 
lishment" by  engaging  in  departmental  ac- 
ti\ities  (21  Comp.  Dec,  709).] 

Persons  in  the  classified  service  at  Washing- 
ton, District  of  Columbia  (except  the  Depart- 
ment of  Justice  in  certain  cases),  shall  not  be 
detailed  for  service  outside  of  the  District  of  Co- 
lumbia, except  for  or  in  connection  ^vith  work 
pertaining  directly  to  the  service  at  the  seat  of 
government  of  the  Departmeut  or  other  Gov- 
ernment establishment  from  which  the  detail 
is  made.  _  (Act  Mar.  3,  1917,  39  Stat.,  1121, 
repeated  in  legislative,  executive  and  judi- 
cial appropriation  acts  for  subsequent  years.) 

As  to  detail  of  enlisted  men  for  duty  in  an 
executive  department,  see  statutes  cited  above 
imder  "Restrictions  on  employment  of  clerical 
8er\ices,"  and  see  act  of  June  19, 1878,  (20  Stat., 
196),  authorizing  the  employment  of  "not  ex- 
ceeding 10  enlisted  men"  in  the  office  of  the 
Chief  of  Ordnance,  War  Department.  See  also 
act  of  June  3,  1916  (39  Stat.,  188,  sec.  35),  re- 
garding employment  of  enlisted  men  in  civil 
occupations. 

Officers  of  the  Navy  may  be  detailed  for 
duty  in  the  Navy  Department,  but  where 
such  an  officer  on  the  active  list  is  appointed  to 
the  office  of  draftsman  in  the  Hydrographic  Of- 
fice he  is  not  entitled  to  both  salaries,  although 
he  holds  both  offices.  In  such  case  he  is  enti- 
tled to  the  larger  salary  when  different  salaries 
are  attached  to  the  two  offices.  (Winchell  v. 
U.  S.,  28  Ct.  Cls.,  30;  5  Comp.  Dec,  885.  See 
note  to  sec  431  R.  S.;  and  see  19  Op.  Atty. 
Gen.,  503;  28  Op.  Atty.  Gen     95.) 

Not  exceeding  four  naval  officers  may  be  de- 
tailed as  necessary  to  the  Hydrographic  Office 
by  the  Secretary  of  the  Navy.  (Act  Mar.  4, 
1917,  39  Stat.,  1172.     See  note  to  sec.  431,  R.  S.) 

"The  Secretary  of  the  Navy  is  authorized 
to  detail  such  naval  officers  as  may  be  neces- 


sary to  the  Hydrographic  Office".    (Act  July  1, 
1918,  40  Stat.,  708.) 

An  officer  on  the  retired  list  of  the  Navy 
may  take  the  civil-service  examination,  and  his 
status  on  the  retired  list  does  not  preclude  him 
from  accepting  a  clerical  position,  assvmiing  the 
compensation  of  such  position  to  be  less  than 
$2,500  per  annum,  subject  to  possible  recall  to 
active  dutv.  (File  4901-1904;  5650-1900; 
4642-1903.)  " 

A  retired  officer  of  the  Navy  whose  retired 
pay  amounts  to  $2,500  per  annum  is  within  the 
prohibition  of  section  2  of  the  act  of  July  31, 
1894  (28  Stat.,  205),  and  is  ineligible  to  hold 
office  as  clerk  of  class  3  under  the  Ci\dl  Service 
Commission.     (29  Op.  Atty.  Gen.,  503.) 

A  retired  officer  can  not  hold  an  office  in  the 
diplomatic  or  consular  service .  (Sec.  1440,  R.  S . ; 
15  Op.  Atty.  Gen.,  306;  Badeau  v.  U.  S.,  130 
U.  S.,  439.) 

The  emplojrment  of  retired  enlisted  men 
of  the  Navy  in  ci\-il  positions  under  the  United 
States  is  not  contrarv  to  any  Federal  law  or  Navy 
regulation.  (File  7657-123,  Dec.  29,  1911;  file 
7657-57.) 

See  "Provisions  applicable  to  all  the 
executive  departments,"  Title  IV,  sections 
158-198,  Revised  Statutes,  and  particularly 
sections  166-170  relating  to  appointment,  com- 
pensation, and  distril:iution  of  clerks. 

Civilian  employees  at  navy  yards. — For 
laws  applicable  to,  see  sections  1542  to  1546,  Re- 
vised Statutes. 

Appointments  made  by  Secretary  of  the 
Navy. — "No  person  shall  be  employed  at  a 
per  diem,  monthly,  or  annual  compensation 
and  paid  from  the  appropriation  for  the  legis- 
lative, executive,  and  judicial  expenses  of  the 
Government  to  do  any  kind  of  clerical,  draft- 
ing, technical,  messengers'  or  laborers'  work, 
except  after  a  written  appointment  by  the  Sec- 
retary of  the  Navy  or  with  his  approval  in  writ- 
ing. Nor  shall  a  ci\nlian  be  employed  to  per- 
form work  of  any  character  in  the  bureaus  and 
offices  of  the  department  except  by  written 
authority  of  the  Secretary  of  the  Navy." 
(Naval  Instructions,  1913,  art.  52.) 

Appointments  to  office  under  the  United 
States  may  be  made  only  by  the  President,  by 
and  with  the  advice  and  consent  of  the  Senate, 
the  President  alone,  the  courts  of  law,  or  the 
heads  of  departments.  (See  Constitution,  Art. 
II,  sec.  2,  clause  2,  and  note  thereto.) 

Congress  has  vested  in  the  heads  of  depart- 
ments the  appointment  of  clerks,  laborers,  and 
other  employees  in  their  departments,  and  this 
power  can  not  be  delegated.  (See  sec.  169, 
R.  S.,  and  note  thereto.) 

Oath  of  office. — The  oath  to  be  taken  by  aU 
persons  elected  or  appointed  to  any  office  of 
honor  or  profit  in  the  civil,  military,  or  naval 
service,  except  the  President,  is  that  prescribed 
by  section  1757,  Revised  Statutes.  (See  act 
May  13,  1884,_  sec.  2,  23  Stat.,  22.)  [A  special 
oath  of  office  is  required  to  be  taken  by  all  per- 
sons employed  in  the  postal  service,  by  sections 
391  and  392,  Revised  Statutes,  as  amended  by 
act  of  Mar.  5,  1874  (18  Stat.,  19).] 

The  oath  of  office  may  be  taken  before  any 
officer  who  is  authorized  either  by  the  laws  of 
the  United  States  or  by  local  laws  to  adminis- 
ter oaths  (sec.  1758,  R.  S.).    The  chief  clerks 


337 


Sec.  416. 


Pi.  2.  REVISED  STATUTES. 


Navy  Department. 


of  the  exei'uti\e  departmente,  aiul  of  the 
bureaus  and  ollices  thereof  in  Washington, 
D.  C,  are  required,  on  application,  to  adminis- 
ter oaths  to  eni]ilo\ees  on  a]ipointnient  and 
promotit)n  without  eharginu;  tlierefor  (act  Aug. 
29,  1S!K),  2(i  8tat.,  371);  an<l  no  olhcer  or  em- 
ployee of  any  executive  tlejmrtment  Avho  is 
also  a  notary  public  or  othen\-ise  authorized  to 
administer  oaths  shall  charge  or  accept  any  fee 
for  administering  the  oatli  of  oliice  to  employees 
in  the  same  department  on  appointment  or  pro- 
motion (s;xme  act). 

The  oatlis  of  office  taken  by  persons  appointed 
to  office  in  any  department  shall  be  preserved 
among  the  files  of  such  department  (sec.  1759, 
R.  S.). 

As  to  persons  authorized  by  law  to  adminis- 
ter oatlis  in  connection  with  naval  matters,  see 
note  to  section  183,  Revised  Statutes. 

Judicial  decisions  concerning  appoint- 
ment and  removal  of  employees. — "The 
power  to  appoint  carries  the  power  to  dismiss. 
The  authorities  on  this  proposition  are  too 
numerous  to  cite.  *  *  *  The  Government 
does  not  contract  to  keep  its  employees  in  its 
service  if  their  services  are  not  needed,  and  the 
right  of  the  appointing  power  to  dismiss  at  dis- 
cretion exists  with  no  general  supervising  power 
in  the  courts  to  review  the  exercise  of  such 
authority.  *  *  *  This  power  of  appoint- 
ment and  removal  is  discretionary  in  character, 
and  without  sj^ecific  authority  such  power  can- 
not be  delegated.  *  *  *  The  interposition 
of  the  courts  Anth  the  performance  of  the  ord- 
nary  duties  of  an  executive  department  is  not 
within  the  power  of  the  court."  (Wheelock  v. 
U.  S.,  46  Ct.  Cls.,  1.) 

A  court  of  equity  has  no  jurisdiction  over  the 
appointment  and  removal  of  public  officers. 
The  jurisdiction  to  determine  the  title  to  a 
public  office  belongs  exclusively  to  the  courts 
of  law  and  is  exercised  either  by  certiorari, 
error,  or  appeal,  or  by  mandamus,  prohibition, 
quo  warranto,  or  information  in  the  nature  of 
a  writ  of  quo  warranto,  according  to  the 
circumstances  of  tlie  case  and  the  mode  of 
procedure  established  by  common  law  or  by 
statute.  (White  v.  Berry,  171  U.  S.,  366;  see 
also  Sawyer's  case,  124  U.  S.,  200;  Morgan  v. 
Numi,  84  Fed.  Rep.,  551;  Couper  v.  Smyth,  84 
Fed.  Rep.,  757;  Page  v.  Moffett,  85  F'ed.  Rep., 
38;  Carrzj.  Gordon,  82  Fed  Rep.,  373,379;  Tay- 
lor V.  Kercheval,  82  Fed.  Rep.,  497,  499.) 

A  court  of  equity  will  not  by  injunction 
restrain  an  executive  officer  from  making  a 
wrongful  removal  of  a  subordinate  appointee 
nor  restrain  the  appointment  of  another. 
(Morgan  v.  Nunn,  84  l-'ed.  Rep.,  551.) 

The  appointment  to  an  official  position  in  the 
Government,  even  if  it  be  simply  a  clerical 
position,  is  not  a  mere  ministerial  act,  but  one 
mvohdng  the  exercise  of  judgment.  The  ap- 
pointing power  must  determine  the  fitness  of 
the  applicant;  whether  or  not  he  is  the  proper 
one  to  discharge  the  duties  of  the  position. 
Therefore  it  is  one  of  those  acts  over  which  the 
courts  have  no  general  supervising  power.  In 
the  absence  of  specific  provision  to  the  contrary, 
the  power  of  removal  from  office  is  incident  to 
the  power  of  appointment.  *  *  *  Unless 
therefore  there  be  some  specific  provision  to 
the  contrary,  the  action  of  the  Secretary  of  the 


Interior  in  removing  the  petitioner  from -office 
on  account  of  inefficiency  is  beyond  review  in 
the  courts,  either  by  mandamus  to  reinstate 
him  or  by  compelling  payment  of  salary  as 
though  he  had  not  been  removed.  (Keim  v. 
U.  S.,  177  U.  S.,  290.) 

The  courts  have  no  power,  by  mandamus  or 
otherwise,  to  review  the  action  of  the  head  of  an 
executive  department  of  the  Government  in 
removing  a  clerk  from  office,  on  the  ground  that 
the  removal  was  not  in  accordance  with  civil- 
service  rules  requiring  notice  to  be  given  and 
an  opportunity  to  reply  to  charges,  where  the 
charge  is  that  the  clerk  wrote  and  caused  to  be 
published  a  newspaper  article  derogatory  to  the 
President.     (U.  S.  v.  Taft,  24  App.  D.  C,  95.) 

The  power  of  appointment  to  the  classified 
civil  service  of  the  United  States  carries  with  it 
the  power  of  removal,  which  is  unrestricted  ex- 
cept as  controlled  by  the  civil-service  act  of 
January  16,  1883  (22  Stat.,  403),  which  does  not 
limit  the  power  of  removal  except  for  the  single 
cause  of  failure  to  contribute  money  or  services 
to  a  political  party.  (U.  S.  v.  Taft,  24  App.  D. 
C,  95. — See  other  statutes  relating  to  removal, 
noted  below.) 

Honorably  discharged  soldiers  or  sail- 
ors.— Section  1754,  Revised  Statutes,  gives 
preference  for  appointment  to  persons  honor- 
ably discharged  from  the  military  or  naval  serv- 
ice. The  act  of  August  15,  1876  (19  Stat.,  169, 
sec.  3),  provides  for  preference  in  retention, 
when  force  is  reduced,  of  "  those  persons  who 
may  be  equally  qualified  who  have  been  hon- 
orably dischai-ged  from  the  military  or  naval 
service  of  the  United  States,  and  the  widows 
and  orphans  of  deceased  soldiers  and  sailors. " 
The  legislative,  executive,  and  judicial  appro- 
priation act  of  August  23,  1912,  section  4  (37 
Stat.,  413),  provides  for  a  system  of  efficiency 
ratings  to  be  established  by  the  Civil  Service 
Commission,  and  that  no  honorably  discharged 
soldier  or  sailor  whose  record  is  rated  good  is  to 
be  discharged  or  dropped,  or  reduced  in  rank  or 
salary  in  the  event  of  reductions  being  made. 
The  legislative,  executive,  and  judicial  appro- 
priation act  of  March  4,  1915  (38  Stat.,  1007), 
provides  for  the  establishment  of  a  Division  of 
Efficiency  for  the  purpose  of  carrying  into  effect 
the  provisions  of  the  act  of  1912.  The  Army 
appropriation  act  of  May  12,  1917  (40  Stat.,  72), 
pro^ddes  that  employees  of  the  Government 
who  are  members  of  the  Officers'  Reserve 
Corps  shall,  when  relieved  from  duty,  be  re- 
stored to  the  positions  held  by  them  when 
ordered  to  dutv. 

The  act  of  March  3,  1919,  section  6  (40  Stat., 
1293)  provides  that  '' hereafter  in  making  ap- 
pointments to  clerical  and  other  positions  in 
the  executive  departments  and  in  independent 
governmental  establishments,  preference  shall 
be  given  to  honorably  discharged  soldiers, 
sailors,  and  marines,  and  widows  of  such,  if 
they  are  qualified  to  hold  such  positions." 
The  act  of  March  1,  1919  (40  Stat.,  1224)  pro- 
vides that  ' '  the  period  of  time  during  which 
soldiers,  sailors,  and  marines,  both  enlisted  and 
drafted  men,  who  prior  to  entering  the  service 
of  their  country,  had  a  civil  service  status, 
and  whose  names  appear  upon  the  eligible  list 
of  the  Civil  Service  Commission,  shall  not  be 
counted  against  them  in  the  determination  of 


338 


Navy  Department. 


PL.  2.  REVISED  STATUTES. 


Sec.  416. 


their  eligibility  for  appointment  under  the 
law,  rules  and  regulations  of  the  Civil  Service 
Commission  now  in  effect,  and  at  the  time  of 
demobilization  their  civil-service  status  shall 
be  the  same  as  when  they  entered  the  service. " 
The  act  of  February  25, 1919  (40  Stat.,  1164), 
provided  that  "all  former  Government  em- 
ployees who  have  been  drafted  or  enlisted  in 
the  military  service  of  the  United  States  in 
the  war  with  Germany  shall  be  reinstated  on 
application  to  their  former  positions,  if  they 
have  received  an  honorable  discharge  and  are 
qunlified  to  perform  the  duties  of  the  position." 
The  act  of  July  11,  1919  (41  Stat.,  142),  pro- 
vided that  "all  former  Government  employees 
who  have  entered  the  military  or  naval  service 
of  the  United  States  in  the  war  with  the  Ger- 
man Government  shall  be  reinstated  on  appli- 
cation to  their  former  positions  if  they  have 
received  an  honorable  discharge  and  are  quali- 
fied to  perform  the  duties  of  the  position." 

No  thoughtful  person  questions  the  obliga- 
tions which  the  Nation  is  under  to  those  who 
have  done  faithful  service  in  its  Army  or  Navy. 
Congress  has  generously  provided  for  the  dis- 
charge of  those  obligations  in  a  system  of  pen- 
sions more  munificent  than  has  ever  before  been 
known  in  the  history  of  the  world.  But  it 
would  be  an  insult  to  the  intelligence  of  Con- 
gress to  suppose  that  it  contemplated  any  degra- 
dation of  the  civil  service  by  the  appointment 
to  or  continuance  in  office  of  incompetent  or 
inefficient  clerks,  simply  because  they  had  been 
honorably  discharged  from  the  military  or  naval 
service.     (Keim  v.  U.  S.,  177  U.  S.,  295.) 

The  act  of  1876  provides  for  the  retention  of 
veterans  who  may  be  "equally  qualified." 
Under  this  law  a  court  could  not  enter  an  execu- 
tive department,  examine  the  acts  of  its  head, 
inquire  into  the  exercise  of  his  discretion,  and 
investigate  as  to  causes  of  its  exercise.  (Keim 
V.  U.  S.,  33  Ct.  Cls.,  174;  177  U.  S.,  290.)  The 
power  of  removal  is  a  purely  executive  power, 
which  is  not  intrusted  to  the  judicial  branch  of 
the  Government  (same  case). 

The  enactment  of  1876  is  not  mandatory,  and 
the  courts  can  not  review  the  action  of  the 
executive  officers  when  they  reduce  the  force  of 
a  department.  The  administrative  officers 
charged  with  the  authority  must  investigate 
and  settle  for  themselves  the  matter  of  actual 
work  done  by  various  employees,  by  a  com- 
parison of  one  with  another  as  to  competency 
and  attention  to  duty.  (Wheelock  v.  U.  S.,  46 
Ct.  Cls.,  1,  citing  Keim -y.  U.  S.,  above;  see  also 
Medrick  v.  U.  S.,  44  Ct.  Cls.,  469.) 

Under  former  laws  the  courts  had  no  power  to 
review  the  action  of  the  head  of  a  department 
in  discharging  an  employee  for  inefficiency. 
Whether  that  rule  is  changed  by  the  act  of 
August  23,  1912  (37  Stat.,  413),  not  decided,  as 
that  act  has  not  been  made  effective  by  the  ac- 
tion of  the  Civil  Service  Commission  as  therein 
provided.  (Persing  v.  Daniels,  43  App.  D.  C, 
470.  [In  this  connection,  see  act  of  March  4, 
1915  (38  Stat.  1007),  noted  above.] 

Civil-service  law  and  regulations. — The 
civil-service  law  (act  Jan.  16, 1883,  22  Stat.,  403) 
was  intended  to  provide  a  body  of  civil  officers 
selected  solely  tor  competency  and  fitness, 
protect  them  against  accountability  to  any 
political  party,  and  prevent  their  discharge, 


promotion,  or  degradation  for  giving  or  with- 
holding political  contributions;  but  it  did  not 
deprive  the  appointing  power  of  any  existing 
rights  to  remove  or  change  in  rank  for  other  rea- 
sons.    (Carr  v.  Gordon,  82  Fed.  Kep.,  373.) 

An  Executive  order  dated  July  27, 1897,  con- 
tained the  following:    "No  removal  shall  be 
made  from  any  position  subject  to  competitive 
examination  except  for  just  cause  and  upon 
written  charges  filed  with  the  head  of  the  de- 
partment or  other  appointing  officer,  and  of 
which  the  accused  shall  have  full  notice  and 
an   opportunity  to  make  defense."     [Similar 
provisions  since  embodied  in  act  of  Aug. 24, 1912, 
section  C,  37  Stat.,  555.]     Notwithstanding  this 
order  an  employee  was  removed  by  the  Com- 
missioner of  Pensions  without  written  charges 
filed  against  him  and  without  notice  or  oppor- 
tunity to  make  defense,  but  in  consequence  of 
the  reduction  of  the  clerical  force  required  by 
law.     Held  that   in   legal   contemplation  the 
head  of  a  department  is  an  arm  of  the  Execu- 
tive, and  the  Pension  Office  is  a  branch  of  the 
Interior  Department;   an  order  sent  out  in  the 
regular  course  of  business  from  the  appropriate 
executiA  e  department  is  the  legal  equivalent 
of  the  President's  own  order.     The  order  which 
discontinued  plaintiff's  services  was  special  in 
character  and  superseded  the  general  order  for 
the  purposes  of  this  case.     Wlien  the  head  of 
the  Pension  Office  exercises  discretion  as  to 
capacity  between  clerks  in  his  office,  the  exer- 
cise of  his  discretion  can  not  be  reviewed  in 
the  courts.     (Medrick  v.  U.  S.,  44  Ct.  Cls.,  469.) 
The  protection  of  the  President's  order  of 
July  27,  1897,  against  removals  from  the  civil 
senice  except  upon  written  charges  with  op- 
portunity for  defense  extends  to  an  employee 
in  the  office  of  the  United  States  Surveyor  Gen- 
eral in  tl  e  State  of  Idaho.     (U.  S.  v.  Wicker- 
sham,  201  U.  S.,390.) 

The  order  of  the  President  of  July  27,  1897, 
prohibiting  removals  from  positions  subject  to 
competitive  examination  except  upon  written 
charges  and  notice,  is  an  administrative  order 
regulating  the  conduct  of  the  President's  sub- 
ordinates; but  it  Las  not  the  force  of  law  and 
confers  upon  an  incumbent  no  right  to  hold  in- 
definitely, and  no  right  of  which  a  court  of 
eciuity  can  take  cognizance.  (Carr  v.  Gordon, 
82Fed.  Eep.,373.) 

Neither  Revised  Statutes,  section  1753,  nor  the 
civil -service  act  of  January  16, 1883,  puts  any  re- 
strictions upon  tl;e  power  of  removal  from  ap- 
pointive offices,  except  for  refusal  to  contribute 
to  political  funds  or  neglect  to  render  political 
services;  hence  presid,ential  rule  11,  relating 
to  the  civil  service  and  providing,  as  amended 
July  27,  1897,  that  no  removal  shall  be  made 
without  giving  the  accused  notice  and  an  op- 
portunity to  make  defense,  has  not  such  au- 
thority as  law  as  confers  upon  the  holder  of  an 
office  a  vested  right  thereto,  with  the  right  to 
invoke  the  equitable  power  of  the  courts  to 
restrain  his  removal  for  violation  of  such  rule. 
(Page  -i;.  Moffett,  85  Fed.  Rep.,  38.) 

The  ci\-il-serA-ice  law  cloes  not  prohibit 
removal  or  discharge  except  for  gi^'ing,  wTth- 
holding,  or  neglecting  to  make  contributions  of 
money  for  political  purposes.  (Morgan  v. 
Nunn,  84  Fed.  Rep.,  551.) 


339 


Sec.  416. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


Removal  of  employee  on  probation. — 
Neither  the  .•statutes  nor  the  rule^  ])r()inu)«i;ated 
cast  upon  the  Government  the  oblipjation  of 
employing:  men  on  probation  or  in  the  perma- 
nent service  whose  serA-ices are  not  needed ;  and 
a  i)rol)at inner  has  no  ri^rht  to  be  retained  for  the 
full  j)eriod  of  six  months  if  his  serA-ices  are  not 
neecled.     (Hrown  v.  IJ.  S.,  39  Ot.  Cls.,  255.) 

In  the  absence  of  a  statute  or  express  contract 
bindins;  the  Government  to  employ  a  person 
for  a  definite  period,  his  employment  comes 
under  the  general  rule  of  master  and  servant, 
that  a  person  who  is  not  hired  for  a  specified 
time  may  be  dischar<^ed  when  his  servnces  are 
no  longer  needed.  (Brown  v.  U.  S.,  39  €t. 
CIs.,255.) 

The  civil-service  laws  and  rules  were  enacted 
and  promulgated  to  prevent  the  discharge  of 
employees  whose  services  are  needed  but  who 
may  be  discharged  because  of  other  considera- 
tions than  the  welfare  of  the  public  semce. 
(Brown  v.  U.  S.,  39  Ct.  Cls.,  255.) 

Status  of  employee  who  refuses  to 
resign.— Where  the  head  oi  a  department 
makes  a  request  for  a  resignation  and  it  is  not 
handed  in,  the  officer  forfeits  no  right  either 
because  of  his  failure  to  resign  or  because  re- 
quested to  do  ,so.  (Knight  v.  U.  S.,  35  Ct.  01s., 
129.) 

Neglect  of  duty  as  ground  for  removal. — 
"A  neglected  duty  often  works  as  much  against 
the  interests  of  the  Government  as  a  duty 
wrongfully  performed,  and  the  Government  has 
a  right  to  demand  and  expect  of  its  employees 
not  merely  competency  but  fidelity  and  atten- 
tion to  the  duties  of  their  positions."  (Keim  v. 
U.  S.,  177  U.S.,  295.) 

Suspension  of  employees. — The  power  to 
suspend  an  officer  without  compensation  is  inci- 
dental to  the  power  to  appoint  and  discharge. 
The  exercise  of  this  power  enables  the  head  of 
a  department  to  retain  an  officer  who  otherwise 
would  have  to  be  discharged.  (Wertz  v.  U.  S., 
40  Ct.  Cls.,  397;  11  Comp.  Dec,  570;  see  also 
file  2704-04;   file  103-98.) 

An  order  directing  an  officer  appointed  by  the 
President  to  proceed  to  his  home,  notifying 
him  that  his  daily  pay  Avill  cease  from  and  after 
the  date  of  his  arrival,  does  not  discharge  him 
from  service.  His  status  is  that  of  an  officer 
awaiting  employment,  and  not  entitled  to  his 
per  diem  compensation  until  emploved. 
(Wertz  v.V.  S.,40  Ct.  Cls.,  397.) 

An  employee  can  not  recover  compensation 
from  the  time  the  appointing  power  furloughs 
him,  if  the  furlough  be  without  pay,  to  the  time 
the  employee  is  restored  to  duty.  There  is 
nothing  to  prevent  the  head  of  a  department 
from  putting  an  employee  on  furlough  wathout 
pay  at  any  time  when  the  exigencies  of  the 
service  require  it.  (Wheelock  v.  U.  S.,  46  Ct. 
Cls.,  1,  citing  Stillings  v.  U.  S.,  41  Ct.  Cls.,  61, 
and  U.  S.  ?;.  Murray,  100  U.  S.,  5.36.) 

The  head  of  a  department  may  put  an  em- 
ployee on  furlough  without  pay  at  any  time  if 
the  exigencies  of  the  service  require  it.  He 
may  be  dismissed  absolutely,  and  it  is  difficult 
to  see  why,  if  this  can  be  done,  he  may  not  be 
furloughed  \vithout  pay,  which  is  the  effect  of 
a  partial  dismissal.  (U.  S.  f .  Murray,  100  U.  S., 
530;  see  also  11  Comp.  Dec,  560.) 


The  head  of  a  department  is  authorized  to 
suspend  an  employee  from  duty  without  pay, 

{lending  the  investigation  of  charges  against 
lim,  whether  said  employee  is  paid  from  lump- 
sum apjiropriations  or  is  specifically  a])])ropri- 
ate<l  for  bv  law.  (11  Comp.  Dec,  560;  21  ( 'omp. 
Dec.  478;  see  al?o  10  Comp.  Dec,  301,  U 
Comp.  Dec,  605,  20  Comp.  Dec,  505;  file  6696- 
212:4.) 

Where  the  suspension  of  an  employee  from 
duty  is  clearly  wrongful,  he  is  entitled  to  re- 
co\-er  salary  for  the  time  of  the  suspension. 
(Lellmann's  case,  37  Ct.  Cls.,  128;  Wickersham's 
case,  201  U.  S.,  390,  affirming  39  Ct.  Cls.,  558; 
see  also  Medrick  v.  U.  S.,  44  Ct.  Cls.,  479.) 
But  where  thc^re  was  probable  cause  for  the  sus- 
pension, the  fact  that  the  employee  is  restored 
to  duty  because  on  in\estigation  the  eA'idence 
is  found  insuificient  to  support  the  charges  does 
not  entitle  him  to  recover  pay  for  the  period  of 
the  suspension.  (11  Comp.  Dec,  500;  11 
Comp.  Dec,  661;  see  also  11  Comp.  Dec, 
776.) 

Where  a  clerk  in  the  classified  service  was 
suspended  and  charges  were  preferred  against 
him  by  a  surveyor  general,  and  the  commis- 
sioner investigated  the  charges  and  ordered  that 
the  suspension  lie  permanent,  the  action  of  the 
commissioner  was  in  legal  effect  a  dismissal  and 
can  not  be  reviewed  by  the  judiciary.  (Lell- 
mann  v.  U.  S.,  37  Ct.  Cls.,  128.) 

Investigation  of  charges. — The  head  of 
any  department  is  authorized  to  detail  any 
officer  or  clerk  in  his  department  to  investigate 
any  irregularity  or  misconduct  of  any  officer  or 
agent  of  the  United  States  under  his  jurisdic- 
tion; and  such  officer  or  clerk  so  detailed,  or 
any  officer  of  the  Navy  or  Marine  Corps  detailed 
to  conduct  an  investigation,  is  authorized  to 
administer  oaths  to  witnesses.  (See  sec.  183, 
R.  S.,  as  amended  ])y  act  Feb.  13,  1911,  36  Stat. 
898.) 

Perjury  committed  by  a  witness  in  such  in- 
vestigation is  punishable  by  fine  and  imprison- 
ment. (Sec.  125,  Criminal  Code,  act  Mar.  4, 
1909,  35  Stat  1111). 

In  the  Navy  Department  investigations  of 
employees  have  been  conducted  under  section 
183,  Revised  Statutes,  as  amended  (see  file 
26263);  while  investigations  of  misconduct  by 
employees  at  naval  stations  have  been  con- 
ducted by  court  of  inquiry  authorized  by  sec- 
tion 1624,  Revised  Statutes,  articles  56-60  (see 
file  6692-212:3)  or  by  a  naval  board  of  investi- 
gation (see  file  26283-166;  Ct.  Inq.  No.  6171). 

No  examination  of  witnesses,  nor  any  trial  or 
hearing  is  required  by  law  prior  to  removal  of 
an  employee,  except  in  the  discretion  of  the 
officer  making  the  removal  (act  Aug.  24,  1912, 
sec.  6,  37  Stat..  555),  but  the  person  accused 
is  entitled  to  notice  and  copy  of  the  charges, 
with  reasonable  time  to  answer  same  prior  to 
his  removal.     (Same  act.) 

Political  contributions. — A  statute  (act 
Aug.  15, 1876, 19  Stat.,  169)  prohibiting  executive 
officers  or  employees  of  the  United  States  from 
giving  to  or  receiving  from  each  other  contri- 
butions for  political  purposes,  was  designed  to 
promote  efficiency  and  integrity  in  the  discharge 
of  official  duties  and  is  constitutional.     (Ex 


340 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  416. 


parte  Curtis,  106  U.  S.,  371;  affirming  U.  S.  v. 
Curtis,  12  Fed.  Rep.,  824.) 

Increases  in  pay  not  promotion  to  new 
office. — \\Tiere  a  clerk  takes  but  one  oath  of 
office,  receives  but  one  letter  of  appointment, 
and  during  his  whole  period  of  service  acts  as 
a  clerk  in  the  same  office,  promotions,  so-called, 
are  but  increases  in  pay  and  in  no  sense  a  pro- 
motion to  a  different  office.  (Butler  v.  U.  S., 
47  Ct.  Cls.,  39.) 

A  new  appointment  is  not  made  necessary 
merely  by  reason  of  an  increase  in  the  salary  of 
an  office.  (29  Op.  Atty.  Gen.,  116,  citing  1 
Comp.  Dec,  267,  1  Comp.  Dec,  313,  3  Comp. 
Dec,  336.) 

Where  a  civilian  dentist  employed  at  the 
Naval  jicademy  was  by  act  of  Congress  given 
"the  same  official  status,  pay,  and  allowances" 
as  an  officer  of  the  Army  serving  as  dental  siu-- 
geon  at  the  Military  Academy,  it  was  held  that 
the  law  was  self-operative,  and  did  not  require 
any  action  by  the  appointing  power  or  the 
Navy  Department  to  give  it  effect;  that  it  did 
not  create  a  new  office  and  accordingly  that  no 
appointment  or  commission  was  necessary  or 
could  properly  be  issued  to  the  dentist  in 
question  under  its  provisions.  (File  13707-25, 
Oct.  24,  1915,  construing  proviso  in  act  Aug. 
22,  1912,  37  Stat.  345.  The  foUomng  year  Con- 
gress specifically  provided  for  the  appointment 
of  this  civilian  dentist  as  "a  dental  surgeon  in 
the  Navy,  "  (act  Mar.  4,  1913,  37  Stat.  891),  and 
a  new  appointment  was  issued  to  him  accord- 
ingly . ) 

Assignment  of  employees  to  duty. — A 
court  of  equity  ought  not  to  control  the  discre- 
tion which,  under  existing  statutes,  the  execu- 
tive department  has  in  all  such  matters  as  the  as- 
signment and  detachment  of  employees  from 
duty.  Interference  by  the  judicial  depart- 
ment in  such  cases  would  lead  to  the  utmost 
confusion  in  the  management  of  executive 
affairs.     (White  v.  Berry,  171  U.  S.,  366.) 

Employees  doing'  duty  at  their  homes. — 
Where  a  female  clerk  in  an  executive  depart- 
ment, in  consideration  of  the  sickness  of  her 
husband,  is  excused  from  attendance  and  is  to 
have  her  work  sent  to  her  residence,  if  it  be  not 
sent  she  is  bound  to  report  to  the  department; 
if  she  neglects  to  report,  her  tenure  can  not  be 
deemed  to  extend  beyond  the  current  month. 
(Palmer  v.  U.  S.,  17  Ct.  Cls.,  230.) 

Extra  pay  on  discharge. — Clerks  dis- 
charged without  fault  on  their  part,  by  reason 
of  reductions  in  force  made  necessary  at  the 
close  of  a  fiscal  year,  by  special  authority  of 
Congress  have  been  allowed  two  months'  pay 
as  a  gratuity  on  discharge.  (See  joint  resolu- 
tion, June  23,  1874,  18  Stat.,  pt.  3,  p.  289;  U.  S. 
V.  Miuray,  100  U.  S.,  536;  Schaeffer  v.  U.  S., 
11  Ct.  Cls.,  730.) 

Employees  incapacitated  for  duty. — 
The  annual  legislative,  executive,  and  judicial 
appropriation  act  contains  the  following  provi- 
sion: "That  the  appropriations  herein  made 
for  the  officers,  clerks,  and  persons  employed 
in  the  public  service  shall  not  be  available  for 
the  compensation  of  any  persons  incapacitated 
otherwise  than  temporarily  for  performing  such 
service."     (See, for  example,  act  Mar.  3,  1917, 


sec  3,  39  Stat.,  1121.)  However,  compensa- 
tion may  be  paid  in  certain  cases  where  em- 
ployees are  injured  in  course  of  employment. 
(Act  Sept.  7,  1916,  39  Stat.,  742.) 

As  to  distribution  of  clerks,  temporary 
details,  transfers  between  departments, 
etc.,  see  sections  166  and  169,  Revised  Statutes, 
and  references  thereunder. 

Under  the  provisions  of  the  act  of  March  4, 
1915  (38  Stat.,  1084),  when  one  bureau  of  the 
War  or  Navy  Departments  performs  any  service 
for  another  bureau  of  such  departments,  the 
head  of  the  department  for  which  the  service 
is  to  be  performed  may  cause  its  funds  to  be 
transferred  on  the  books  of  the  Treasiu-y  De- 
partment to  the  prociuing  department  for 
direct  expenditm-e  by  it.  The  funds  so  trans- 
ferred are  to  be  expended  and  accounted  for 
under  the  riiles  and  regulations  of  the  depart- 
ment to  which  they  are  advanced.  (21  Comp. 
Dec.  819;  see  also  22  Comp.  Dec.  145,  and  sec. 
3678,  R.  S.) 

Voluntary  services  shall  not  be  accepted, 
nor  personal  service  employed  in  excess  of  that 
authorized  by  law,  except  in  cases  of  sudden 
emergency  involving  loss  of  life  or  destruction 
of  property.  (Act  May  1,  1884,  23  Stat.,  17; 
act  Mar.  3,  1905,  33  Stat.,  1257;  and  act  Feb.  27, 
1906,  34  Stat.,  49;  see  sec.  3679,  R.  S.) 

Use  of  contingent  and  miscellaneous 
appropriations  for  clerical  compensation  is 
restricted  liy  section  3682,  Revised  Statutes,  and 
act  of  August  5,  1882,  section  4  (22  Stat., 
255). 

During  the  sessions  of  Congress  an 
additional  clerk  can  not  1)6  employed  in  the  of- 
fice of  the  Judge  Advocate  General  of  the  Navy, 
as  allowed  l^y  section  171,  Revised  Statutes,  as 
that  section  is  repealed  by  later  laws  prohibiting 
employment  of  clerical  services  in  excess  of  an- 
nual appropriations  therefor.  Additional  clerk 
may  ]>e  detailed  to  office  of  Judge  Advocate 
General,  if  necessary,  from  some  other  office  or 
bureau  of  the  Navy  Department  in  accordance 
with  section  166,  Revised  Statutes.  (Comp. 
Dec,  Oct.  28,  1915,  file  26254-1906.) 

Statutes  authorizing  assistant  chiefs 
and  chief  clerks  in  the  bureaus  of  the  Navy 
Department  are  to  be  read  in  connection  with 
section  178,  Revised  Statutes,  ,as  explaining  who 
are  authorized  to  act  as  chief  of  bureau  during 
the  latter's  absence.  Section  178  applies  only 
to  "assistants"  to  chiefs  of  bureaus  who  aie 
specifically  provided  for  by  statute.  (19  Op. 
Atty.  Gen.,  503.) 

Recording  clocks  not  to  be  used  in  record- 
ing time  of  clerks  or  other  employees  in  any  of 
the  executive  departments  at  Washington. 
(Act  Feb.  24,  1899,  30  Stat.,  864.) 

No  part  of  the  appropriations  for  the  naval 
service  shall  be  available  for  salary  of  any  per- 
son making,  with  a  stop  watch  or  other  time- 
measuring  device,  a  time  study  of  any  job  of  any 
employee  of  the  United  States  Government  or 
of  the  movements  of  any  such  employee;  nor 
for  use  as  premium  or  bonus  or  cash  reward  to 
any  employee  in  addition  to  his  regular  wages, 
except  for  suggestions  of  improvements  or  econ- 
omy in  the  operation  of  any  Government  plant. 
(See  act  Mar.  4,  1917,  39  Stat.,  1195.) 


341 


Sec.  41"; 


Pt.'2.  REVISED  STATUTES. 


Navy  Department. 


Sec.  417.  [Duties  of  the  Secretary  of  the  Navy. J  The  Secretary  of  the  Navy 
shall  execute  such  orders  as  he  shall  receive  from  the  President  relative  to  tlie 
procurement  of  naval  stores  and  materials,  and  the  construction,  armament, 
o((iii])ment,  and  employment  of  vessels  of  war,  as  well  as  all  other  matter's  con- 
nected ^vith  the  naval  establishment.  [See  title  Public  contracts.  Also  sees. 
3660-3667,3669.]— (30  Apr.,  1798,  c.  35,  s.  1,  v.  1,  p.  353.) 


Aumial  reports  required  to  be  made  to  Congress 
by  Secretary  of  the  Navy — see  section  429, 
Re\ised  Statutes. 

Appointment  of  employees  in  the  Navy  De- 
partment to  be  made  by  the  Secretary  of 
the  Navy — see  section  169,  Revised  Stat- 
utes. 

Appro])riations  for  Navy  Department  controlled 
and  expended  by  direction  of  the  Secretary 
of  the  Navy.    (Sec.  307(1,  R.  S.) 

Arlington  Memorial  Ampitheater,  Secretary  of 
the  Navy  to  serve  on  commission  to  make 
annual  recommendations  as  to  memorials, 
entombments,  etc.,  in.  (Act  Mar.  4,  1921, 
41  Stat.,  1440.) 

Business  of  Navy  Department  to  be  distrib- 
uted by  Secretary  of  the  Navy  between  the 
bureau's  and  offices  therein.  (Sees.  161  and 
419,  R.  S.) 

Coast  Guard  to  be  under  the  orders  of  the  Sec- 
retary of  the  Navy  in  time  of  war  or  when 
the  President  may  direct.  (Act  Jan.  28, 
1915,  38  Stat.,  800.) 

Congressional  Record,  daily  examination  of,  to 
be  required  by  the  Secretary  of  the  Na\^ 
in  his  department.  (Act  Jan.  12,  1895,  sec. 
90,  28  Stat.,  623.) 

Contracts  and  piu-chases  of  supplies  to  be  under 
the  direction  of  the  Secretary  of  the  Navy. 
(Sec.  3714,  R.  S.,  as  amended  by  act  Feb. 
27,  1877,  sec.  1,  19  Stat.,  249;  see  also  sec. 
3747,  R.  S.;  sees.  3718-3730,  R.  S.) 

Courts-martial  and  courtsof  inquiry  may  be  con- 
vened by  the  Secretary  of  the  Navy.  (Sec. 
1624,  R.  S.,  art.  38,  as  amended  by  act  Feb. 
16,  1909,  sec.  10,  35  Stat.,  621;  and  sec. 
1624,  R.  S.,  art.  55.) 

Courts-martial  proceedings  may  be  set  aside,  or 
their  sentences  remitted  or  mitigated  by 
the  Secretary  of  the  Navy.  (Sec.  1624,  R. 
S.,  as  amended  by  act  Feb.  16,  1909,  sec.  9, 
35  Stat.  621.) 

Custody  of  property  appertaining  to  the  Navy 
Department  to  be  in  the  Secretary  of  the 
Navy.     (Sec.  418,  R.  S.)  _ 

Desertion  charge  entered  against  enlisted  men 
during  Civil  War  may  be  removed  by  Sec- 
retary of  the  Navy.  (Act  Aug.  14,  1888,  25 
Stat.,  442,  as  amended  by  act  May  24,  1900, 
31  Stat.,  183.) 

Discharge  certificates  in  true  names  to  be  issued 
by  Secretary  of  the  Navy,  in  certain  cases 
to  persons  who  served  in  Navy  under  as- 
sumed name.-?.  (Act  Aug.  22,  1912,  37  Stat., 
324.) 
Duplicate  discharge  certificates  may  be  issued 
by  Secretary  of  Navy  to  officers  and  men  in 
certain  cases  in  lieu  of  lost  discharges.  (Act 
Feb.  7,  1890,  26  Stat.,  6.) 
Duties  of  bureaus  in  the  Navy  Department  to  be 
under  the  direction  of  the  Secretary  of  the 
Navy.     (Sec.  420,  R.  S.) 


Duties  of  Chief  of  Naval  Operations  to  be  under 
the  direction  of  the  Secretary  of  the  Navy. 
(Act  Mar.  3,  1915,  38  Stat.,  929.) 

Duties  of  Judge  Advocate  General  to  be  under 
the  direction  of  the  Secretary  of  the  Navy. 
(Act  June  8, 1880,  21  Stat.,  164,  as  amended 
by  act  June  5,  1896,  29  Stat.,  251.) 

Estimates  to  be  submitted  annually  to  Con- 
gress by  Secretary  of  the  Navy  through  the 
Secretaiy  of  the  Treasury.  (Sees.  3660, 
3669,  R.  S.;  see  references  under  sec.  430, 
R.  S.) 

Insane  persons  belonging  to  the  Navy  or  Ma- 
rine Corps  to  be  placed  in  hospitals  for  the 
insane  upon  order  of  the  Secretary  of  the 
Navy.  (Sees.  1551  and 4843,  R.  S. ;  act  Feb. 
9,  1900,  31  Stat.,  7.) 

Marine  Corps,  subject  to  the  orders  of  the  Secre- 
tary of  the  Navy  except  when  detached  by 
•  President  for  duty  with  the  Army.  (Sec. 
1621,  R.  S.) 

]Midshipmen  may  be  appointed  to  Naval  Acad- 
emy by  Secretary  of  the  Navy  w  ithout  con- 
gressional nomination.    (Acts  June  29, 1906 

34  Stat.,  578;  June  30,  1914,  38  Stat. 
410;  Feb.  15,  1916,  39  Stat.,  9;  Aug.  29 
1916,  39  Stat.,  576;  Mar.  4,  1917,  39  Stat. 
1182;    Dec.  20,  1917,  40  Stat.,  4.30.) 

Midshipmen  may  be  dismissed  by  Secretary  of 
Navy  upon  written  approval  of  the  Presi- 
dent.    (Act  Apr.  9,  1906,  sec.  1,  34  Stat. 
104.) 

Midshipmen  on  graduation  may  be  assigned  by 
Secretary  of  the  Navy  to  fill  vacancies  in 
Marine  Corps  or  Staff  Corps  of  the  Navy. 
(Act  July  9,  1913,  38  Stat.,  103.) 

Navy-yard  employees,  number  and  compensa- 
tion of  clerical,  drafting,  inspection,  and 
messenger  force  to  be  fixed  by  Secretary  of 
the  Navy.    (Act  Mar.  3, 1909,  35  Stat.,  754.) 

Ocean  mail  vessels  to  be  constructed  according 
to  plans  approved  by  Secretary  of  the 
Navy,  with  reference  to  their  conversion 
into  auxiliary  naval  cruisers;  Postmaster 
General  not  to  employ  any  vessel  in  ocean 
mail  service  which  is  not  approved  bv  the 
Secretary  of  the  Navy.  (Act  Mar.  3,  1891, 
sec.  4,  26  Stat.,  831.) 

Officers  may  be  furloughed  by  the  Secretary  of 
the  Navy  (sec.  1442,  R.  S.) ;  maybe  assigned 
to  duty  on  ocean  mail  vessels  with  furlough 
pay  (act  Mar.  3,  1891,  sec.  7,  26  Stat.  832); 
may  be  employed  on  active  duty  after  re- 
tirement (sees.  1462--14G5,  R.  S.;  acts  Aug. 
22.  1912,  37  Stat.,  329,  and  July  1,  1918,  40 
Stat.,  717);  settlement  of  claims  for  travel- 
ing expenses  under  the  control  of  the 
Secretary  of  the  Navy  (act  Mar.  3,   1909, 

35  Stat.,  774.) 

Official  Register  of  the  United  States:  Informa- 
tion for  publication  in,  must  be  fm'nished 
biennially  by  the  Secretary  of  the  Navy 


342 


Navy  Department. 


Pt.  2.  REVISED  STATUTES 


Sec.  417. 


to  the  Director  of  the  Census.  (Act  Jan.  12, 
1895,  sec.  73,  28  Stat.,  618,  as  amended  by 
act  June  7, 1906,  34  Stat.,  219,  and  act  Oct. 
22,  1913,  38  Stat.,  224.) 

Opinion  of  the  Attorney  General  may  be  ob- 
tained by  the  Secretaiy  of  the  Navy  upon 
questions  of  law  pending  in  the  Navy  De- 
partment (sees.  356,  357,  R.  S.);  decision  of 
the  Comptroller  of  the  Treasiuy  may  be 
obtained  by  the  Secretary  of  the  Navy 
upon  any  question  involving  a  pajinent  to 
be  made  by  or  under  the  Secretary  (act 
July  31,  1894,  sec.  8,  28  Stat.,  208);  and  a 
report  by  the  Court  of  Claims  of  its  findings 
of  fact  and  conclusions  of  law  may  be  ob- 
tained by  the  Secretary  of  the  Navy  for 
his  guidance  upon  any  claim  or  matter 
pending  in  the  Navy  Department  which 
involves  controverted  questions  of  fact  or 
law.  (Judicial  Code,  act  Mar.  3,  1911, 
sees  148-150,  36  Stat.,  1137,  1138;  Berger 
v.V.  S.,36Ct.  Cls.,243,  247.) 

Regulations  for  the  Na\y  Department  and 
Naval  Establishment  are  to  be  issued  by  the 
Secretary  of  the  Navy.  (Sees.  161  and 
1547,  R.S.;  see  also  sees.  1548,  1549,  1620, 
1621,  and  1624,  art.  34,  R.  S.;  acts  Feb.  9, 
1889,  25  Stat.,  658;  May  22,  1896,  29  Stat., 
133;  May  13,  1908,  35  Stat.,  128,  amended 
Aug.  22,  1912,  37  Stat.,  329;  May  13,  1908, 
35  Stat.,  153;  Feb.  16,  1909,  sees.  5,  14,  35 
Stat.,  621,  622;  Mar.  3,  1909,  35  Stat.,  768; 
June  24,  1910,  36  Stat.,  619;  Aug.  22,  1912, 

37  Stat.,  341;  Mar.  4,  1913,  37  Stat.,  909; 
Feb.  16,  1914,  38  Stat.,  283;  Mar.  3,  1915, 

38  Stat.,  930,  939,  941,  942,  943;  etc.). 
Requisitions  on  Treasury  for  moneys  appro- 
priated for  the  Navy,  to  be  made  by  the 
Secretary  of  the  Navy.     (Sec.  3673,  R.  S.) 

Requisitions  on  Treasury  for  advances  to  dis- 
bursing officers  to  be  made  bv  the  Secre- 
tary of  the  Navy.  (Act  June' 19,  1878,  20 
Stat..  167.)    _ 

Smithsonian  institution.  Secretary  of  the  Navy 
is  member  of.  (Sec. 5579,  R.S.,asamended. 
See  also  note  to  sec.  415,  R.  S.) 

State,  War,  and  Navy  Department  Building  to 
be  under  the  care  and  super\'ision  of  a  com- 
mission composed  of  Secretaries  of  State, 
War,  and  Navy.  (Act  Mai'.  3,  1883,  22 
Stat.,  553.) 

Superintendence  of  Na\'y  hospitals  (sec.  4807, 
R.  S.)  and  of  Naval  Home  (sec.  4811,  R.  S.) 
to  be  under  the  Secretary  of  the  Navy. 

Trustee  of  Na\'y  Pension  Fund,  Secretary  of 
the  Navy  to  be.     (Sec.  4750,  R.  S.) 

Vessels  to  be  named  by  Secretary  of  the  Navy 
(sees.  1531-1533,  R.  S. ;  act  May  4,  1898,  30 
Stat.,  390;  act  May  13,  1908,  35  Stat.,  159); 
may  be  loaned  by  Secretary  to  nautical 
schools  (act  Mar.  4,  1911,  36  Stat.,  1353). 
Naval  equipment  may  be  loaned  to  military 
schools.  (Act  Mar.  3,  1901,  31  Stat.,  1440, 
as  amended  by  act  June  29,  1906,  34  Stat., 
620,  and  act  June  24,  1910,  36  Stat., 
613.) 

Y.  M.  C.  A.  buildings  in  navy  yards  and  stations 
may  be  furnished  heat  and  light  without 
charge,  in  the  discretion  of  the  Secretary 
of  the  Na\'y.  (Act  Mar.  4,  1911,  36  Stat., 
1274.) 


"The  Secretary  of  the  Navy  represents 
the  President,  and  exercises  his  power  on  the 
subjects  contided  to  his  department."  (U.  S. 
V.  Jones,  18  How.,  92.) 

As  a  general  rule,  no  appeal  lies  to  the  Presi- 
dent from  the  head  of  a  department,  whose  acts 
are  presumed  to  be  the  acts  of  the  President 
himseh.  (9  Op.  Atty.  Gen.,  462.)  However, 
in  the  naval  service  appeals  may  be  taken  to 
the  President  from  the  orders  or  decisions  of 
the  Secretary  of  the  Navy.  (Art.  5323,  Naval 
Instructions,  1913.) 

"The  President  acts  and  speaks  through  the 
heads  of  the  departments,  and  the  acts  of  the 
head  of  an  executive  department  must  be  pre- 
sumed to  be  by  the  direction  of  the  President." 
(Weller  v.  U.  S.,  41  Ct.  Cls.,  324,  holding  that 
the  Secretary  of  the  Navy  acts  for  the_  Presi- 
dent in  appointing  and  dismissing  midshipmen. 
But  see  act  Apr. ''9,  1906,  sec.  1,34  Stat.  104, 
providing  for  dismissal  of  midshipmen  by  the 
Secretary  of  the  Navy  "upon  ^vritten  approval 
of  the  President.") 

The  Secretary  of  the  Navy's  action  in  ad- 
vancing money  to  contractors  is  the  action  of 
the  President  within  the  terms  of  the  statute 
relating  thereto.  "In  reference  to  this  subject 
it  may  be  said,  with  even  more  propriety  than 
in  Wilcox  V.  Jackson  [13  Pet.,  498,  513]  that 
whatever  the  President  is  to  do,  he  is  to  do 
through  and  by  the  Secretary.  So  far  as  the 
authority  of  the  President  was  necessary,  I  must 
consider  him  as  speaking  and  acting  tluough 
the  Secretary  to  whom  the  subject  was  com- 
mitted by  Congress.  I  must  presume,  in  the 
absence  of  all  evidence,  that  the  advances  made 
were  with  his  approbation  and  under  his  direc- 
t  ion  within  the  meaning  of  the  act  of  Congress. ' ' 
(U.  S.  V.  Cutter,  25  Fed.  Cas.  No.  14911.) 

An  order  issued  by  the  Secretary  of  the  Navy 
is  presumed  to  be  issued  with  the  approval  of 
the  President  and  meets  the  requirements  of 
section  1547,  Revised  Statutes,  although  it  does 
not  bear  the  express  approval  of  the  President; 
and  this  applies  even  though  the  order  pay  be 
in  conflict  with  a  prior  regulation  which  was 
expressly  approved  by  the  President.  (Adams 
i;.  U.  S.,42  Ct.  Cls.,  211.) 

The  Secretary  of  the  Navy  may  sign  commis- 
sions issued  to  officers;  but  "it  is  proper"  that 
the  commission  should  declare  the  act  to  be  an 
act  of  the  President,  performed  by  the  head  of 
the  department  as  his  representative.  (22  Op. 
Atty.  Gen.,  82.  See  also  O'Shea  v.  U.  S.,  28 
Ct.  Cls.,  392;  25  Op.  Atty.  Gen.,  292.) 

The  transfer  of  a  part  of  the  naval  station  in 
Porto  Rico  to  the  Government  of  Porto  Rico  in 
accordance  with  law  may  be  made  by  the 
Secretary  of  the  Navy,  since  in  contemplation 
of  law  the  acts  of  the  heads  of  the  executive 
departments  are  the  acts  of  the  President;  but 
it  would  be  preferable  to  have  the  formal 
transfer  effected  by  Presidential  proclamation. 
(29  Op.  Atty.  Gen.,  205.) 

By  the  Constitution,  the  President  is  made 
Commander  in  Chief  of  the  Army  and  Navy  of 
the  United  States.  The  Departments  of  War 
and  of  the  Navy  are  the  channels,  through 
which  his  orders  proceed  to  them,  respectively, 
and  the  Secretaries  of  those  departments  are  the 
organs  by  which  he  makes  his  will  known  to 


343 


Sec.  417. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


them.  The  orders  issued  by  those  officers  are, 
in  contemplation  of  law,  not  their  orders,  but 
the  ortlers  of  the  President  of  the  United  States. 
(10p.Atty.Gen..:^SO;6qp.Atty.Gen.,357,365.) 

Wnere  an  approj)riation  was  made  "to  be 
expencled  at  tlie  tliscretion  of  the  President," 
it  evinces  the  utmost  conscience  of  Conscress  in 
the  President  to  make  proper  distribution  of 
the  fund.  The  order  of  the  Secretary  of  the 
Navy,  in  the  administration  of  the  appropria- 
tion, must  be  regarded  as  the  order  of  the 
President,  and  was  an  exercise  of  the  discretion 
veste<l  in  the  President.  (Hayden  v.  U.  S., 
38  Ct.  Cls.,  39.) 

A  letter  was  addressed  by  the  Secretary  of 
the  NaA'y-  to  an  officer  of  the  Marine  Corps, 
stating  "you  are  hereby  dismissed  from  tlie 
service  from  this  date."  At  this  time  the 
power  of  summarily  di.-^missing  officers  was  pos- 
sessed by  the  President.  It  was  contended 
that  "since  the  order  in  question  simply  pur- 
ported to  be  the  act  of  the  Secretary,  and  did 
not  purport  to  be  the  act  of  the  President,  or  to 
have  been  issued  in  pursuance  of  any  previous 
direction  by  him  given,  the  presumption  can 
not  be  indulged  that  the  dismissal  of  Lieuten- 
ant McElrath  was  by  order  of  the  President." 
The  court  stated  in  its  opinion:  "These  propo- 
sitions open  up  a  very  broad  field  of  inquiry  as 
to  what  exceptions  there  are  to  the  general  rule 
that  the  direction  of  the  President  is  to  be  pre- 
sumed in  all  instructions  and  orders  issuing 
from  the  proper  department  concerning  exec- 
utive business,  notwithstanding  they  may 
contain  no  express  statement  of  any  direction 
from  him,  as  to  the  matters  to  which  such 
instructions  or  orders  refer.  There  are  un- 
doubtedly official  acts  which  the  Constitution 
and  laws  require  to  be  performed  by  the  Presi- 
dent personally,  and  the  performance  of  which 
may  not  be  delegated  to  heads  of  departments; 
or  to  other  officers  in  the  executi\e  branch  of 
the  Government.  It  is  equally  true  that  as  to 
the  vast  multiplicity  of  matters  involved  in 
the  administration  of  the  executive  business 
of  the  Government,  it  is  physically  impossble 
for  the  President  to  give  them  his  personal 
super\-ision.  Of  necessity  he  must,  as  to  such 
matters,  discharge  his  duty  through  the  instru- 
mentality or  by  the  agency  of  others.  Whether 
a  particular  act  belongs  to  one  or  the  other  of 
these  classes  may  sometimes  be  very  difficult 
to  detennine,  and  we  shall  not  attempt  now  to 
lay  down  any  general  rule  upon  the  subject. 
Nor  shall  we  extend  this  opinion  by  any  con- 
sideration of  the  question  whether  the  particu- 
lar order  signed  by  Secretary  Welles  should  not 
be  presumed  to  have  been  issued  by  direction 
of  the  President.  The  determination  of  that 
question  is  not  essential  to  the  dii^position  of 
tnis  case,  since  if  that  order  should,  for  the 
reasons  urged  by  the  claimant's  counsel,  be 
deemed  a  nullity,  the  nomination  and  con- 
firmation subsequently  of  Lieutenant  Haycock, 
followed  by  his  commission  as  a  first  lieutenant 
in  the  Marine  Corps  in  place  of  Lieutenant 
McElrath,  as  certain'y  operated  under  the  law 
as  it  then  was  to  remove  the  latter  from  the 
service  as  if  he  had  been  dismissed  by  direct 
order  of  the  President  under  his  own  signature. ' ' 
(McElrath  v.  U.  S.,  102  U.  S.,  426.) 


For  other  decisions,  see  notes  to  Constitution, 
Article  II,  sectitm  1,  clause  1,  and  Article  II, 
section  2,  clause  1;  and  section  158,  Revised 
Statutes.  (See  also  Bishop  v.  U.  S.,  38  Ct. 
Cls.,  473;  McCollum  v.  U.  S.,  17  Ct.  Cls.,  101, 
and  cases  there  cited;  Nortliern  Pac.  R.  Co.  v. 
Mitchell.  208  Fed.  Rep.,  469;  De  Arnaud  v. 
Ainsworth.  24  App.  D.  C.  167,  5  L.  R.  A. 
(N.  S.)  163;  Hegler  v.  Faulkner,  153  U.  S., 
109,  117.) 

Deliberate  delays  in  performing  du- 
ties.— An  executive  department  has  no  right,  at 
the  recjuest  of  a  committee  of  Congress,  to  omit 
or  delay  the  discharge  of  duties  imposed  upon  it 
by  law.  When  a  right  is  created  by  law  and  a 
duty  devolved  upon  an  executive  department 
under  the  same  law,  the  enjoyment  or  enforce- 
ment of  such  right  can  not  be  suspended  be- 
cause of  the  possibility  that  the  law  may  be 
changed.  To  deprive  any  person  of  a  right 
which  the  law  creates,  at  the  request  of  any- 
body, would  be  a  novel  idea  under  a  system  of 
government  which  is  supposed  to  be  a  govern- 
ment of  laws  and  not  of  men.  Such  a  result 
could  not  be  attained  by  any  action  even  of 
the  whole  House  of  Representatives,  or  of  both 
branches  of  Congress,  unless  by  a  change  in  the 
law  itself.     (13  Op.  Atty.  Gen.,  113.) 

Duties  generally  require  judgment  and 
discretion. — In  general  the  official  duties  of 
the  Secretary  of  the  Navy,  whether  imposed 
by  act  of  Congress  or  by  resolution,  are  not  mere 
ministerial  duties.  The  head  of  an  executive 
department  of  the  Government  in  the  admin- 
istration of  the  various  and  important  concerns 
of  his  office  is  continually  required  to  exercise 
judgment  and  discretion.  He  must  exercise 
his  judgment  in  expounding  the  laws  and  reso- 
lutions of  Congress  under  which  he  is  from  time 
to  time  required  to  act;  if  he  doubts,  he  has  a 
right  to  call  on  the  Attorney  General  to  assist 
him  with  his  counsel;  and  it  would  be  diffi- 
cult to  imagine  why  a  legal  adviser  was  pro- 
vided by  law  for  the  heads  of  departments  as 
well  as  for  the  President  unless  their  duties 
were  regarded  as  executive,  in  which  judg- 
ment and  discretion  were  to  be  exercised. 
(Decatur  v.  Paulding,  14  Pet.,  497.) 

Where  the  Secretary  of  the  Navy  is  author- 
ized by  law  to  construct  vessels  in  the  most 
improved  way,  he  is  necessarily  clothed  with 
large  tliscretion,  both  as  to  the  materials  and 
methods  to  be  used.  (Brooks  v.  U.  S.,  39  Ct. 
Cls.,  494.) 

The  Secretary  of  the  Navy  has  authority  to 
settle  the  amounts  due  under  a  contract  for  the 
building  of  a  ship  of  war,  and  demands  for  extra 
work  agreed  upon,  and  expenses  incurred  be- 
cause of  the  department's  action  of  which  the 
Government  has  received  the  benefit.  (Myerle 
V.  U.  S.,  31  Ct.  Cls.,  105.) 

When  the  law  constitutes  the  Secretary  of 
tlie  Navy,  together  with  the  headsof  certain 
other  departments,  a  board  of  commissioners  of 
a  fund  for  the  benefit  of  the  Navy,  and  gives 
some  general  directions  in  what  way  the  fund 
is  to  be  employed,  but  the  mode  and  manner 
of  transacting  their  business  is  not  in  any  way 
prescribed,  it  rests  in  the  discretion  of  the 
board  whether  or  not  its  proceedings  shall  be 
in  writing.     It  is  fit  and  proper  that  important 


344 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  417. 


transactions  should  be  reduced  to  writing,  but 
the  law  imposes  no  such  indispensable  duty. 
(U.  S.  V.  Fillebrown,  7  Pet.,  28,  concerning 
"commissioners  of  navy  hospitals,"  which  ex- 
isted under  laws  not  now  in  force.) 

The  Secretary  of  the  Navy  is  authorized,  in 
his  discretion,  to  appoint  a  firm  in  London  to 
act  as  his  agent  in  paying  drafts  drawn  by  naval 
officers,  and  he  may,  when  necessary,  exact  and 
receive  all  such  securities  as  he  can  obtain 
to  protect  his  department  against  loss  by  rea- 
son of  the  apprehended  insolvency  of  such  firm. 
(Weetjen  v.  St.  Paul  &  P.  R.  Co.,  4  Hun. 
(N.  Y.),  529.  But  see  sec.  1550,  R.  S.,  pro- 
viding that  "no  person  shall  be  employed  or 
continued  abroad  to  receive  and  pay  money 
for  the  use  of  the  naval  service  on  foreign  sta- 
tions, whether  under  contract  or  otherwise, 
who  has  not  been,  or  shall  not  be,  appointed  by 
and  with  the  advice  and  consent  of  the  Sen- 
ate.") 

The  head  of  a  department  of  the  Federal  Gov- 
ernment is  authorized,  in  the  administration 
of  the  duties  of  his  office,  to  employ  agents  and 
to  determine  when  an  exigency  arises  demand- 
ing their  employment.  Section  3614,  Revised 
Statutes,  recognizes  this  right.  (U.  S.  v.  Pot- 
ter, 27  Fed.  Cas.  No.  16076;  compare  Weeks 
V.  U.  S.,  21  Ct.  Cls.,  124.) 

Jurisdiction  of  courts  over  business  of 
department. — The  court  can  not  entertain  an 
ai)peal  from  the  decision  of  the  Secretary  of  the 
Navy  nor  revise  his  judgment  in  any  case  where 
the  law  authorized  him  to  exercise  his  discre- 
tion or  judgment;  nor  can  it  by  mandamus  con- 
trol his  judgment  or  discretion  in  the  matters 
committed  to  his  care  in  the  ordinary  discharge 
of  his  official  duties.  The  interference  of  the 
courts  with  the  performance  of  the  ordinary 
duties  of  the  executive  departments  of  the 
Government  would  be  productive  of  nothing 
but  mischief,  and  this  power  was  never  intend- 
ed to  be  given  to  them.  (Decatur  v.  Paulding, 
14  Pet.,  497;  see  also  U.  S.  ex  rel.  Dunlap  v. 
Black,  128  U.  S.,  40;  U.  S.  ex  rel.  Redfield  v. 
Windom,  137  U.  S.,  636;  Boynton  v.  Blaine, 
139  U.  S.,  306;  U.  S.  v.  Schurz,  102  U.  S.,  378; 
Keim  v.  U.  S.,  177  U.  S.,  290;  Ness  v.  Fisher, 
223U.  S.,683;  Ray  v.  Garrison, 42  App.  D.  C.  34; 
Martin  v.  Mott,  12  Wheat.,  31,  32.) 

Where  the  administration  of  a  statute  rests 
within  the  discretion  of  the  Secretary  of  the 
Navy,  the  exercise  of  his  discretion  is  not  sub- 
ject to  review  by  the  courts  or  by  the  accounting 
officers.     (Dyer  v.  U.  S.,  37  Ct.  Cls.,  337.) 

The  Secretary  of  the  Navy  can  not  be  com- 
pelled by  mandamus  to  accept  the  highest  bid 
for  a  naval  vessel  offered  for  sale.  He  has  dis- 
cretionary power  under  the  act  of  March  3,  1883 
(22  Stat.  599),  to  reject  any  bid,  and  unless  he 
decides  to  accept  it,  there  has  been  no  sale. 
"It  is  reasonably  practicable  for  Congress  to 
provide  on  broad  lines  only  for  the  control  and 
disposition  of  vessels  belonging  to  the  United 
States,  and  wide  discretion  in  respect  of  the 
many  details  thereof  has  necessarily  been  com- 
mitted to  the  discretion  of  the  executive  de- 
partment."  (Goldberg  v.  Meyer,  37  App. 
D.  C,  282;  affirmed  Goldberg  v.  Daniels,  231 
U.  S.,  218.) 

The  Secretary  of  the  Navy  can  not  be  com- 
pelled, by  writ  of  mandamus,  to  record  the 


name  of  a  person  upon  the  register  of  retired 
officers  of  the  Navy  as  a  paymaeter'a  clerk 
where  the  court  is  of  the  opinion  that  the  peti- 
tioner was  not  a  paymaster's  clerk  within  the 
meaning  of  the  law.  "He  was  no  more  an 
officer  of  the  Navy  than  any  one  of  the  many 
employees  of  the  Navy  Department  at  Wash- 
ington. We  rule,  therefore,  that  he  never  pos- 
sessed any  right  to  retirement."  (U.  S.  ex  rel 
Foreman  v.  Meyer,  38  App.  D.  C,  472;  227 
U.  S.,  452.) 

Where  an  officer  of  the  Navy  has  been  retired 
by  order  of  the  President  with  the  rank  of  cap- 
tain, the  Secretary  of  the  Navy  can  not  be  com- 
pelled, by  writ  of  mandamus,  to  place  his  name 
upon  the  retired  list  with  the  rank  of  rear 
admiral.  (U.  S.  ex  rel  Moser  v.  Meyer,  38  App. 
D.  C.,13.) 

The  courts  will  not  by  mandamus  compel  the 
Secretary  of  War  to  change  the  position  of  an 
officer's  name  in  the  Army  Register,  even 
though  it  be  conceded  that  an  error  exists  there- 
in. \\lien  an  officer  claims  that,  by  reason  of 
the  erroneous  position  in  which  his  name  ap- 
pears in  the  Army  Register,  he  is  deprived  of  a 
rank  or  position  that  might  be  of  benefit  to  him 
in  a  future  claim  to  promotion  to  the  rank  of 
captain,  nevertheless  he  is  not  deprived  of  any 
right  that  he  can  appeal  to  a  court  of  justice  to 
enforce.  His  rank  as  shown  by  the  official 
Army  Register  is  conclusive  of  no  such  right 
of  promotion.  "Promotion  in  a  certain  sense 
is  a  new  appointment,  and  to  the  position  of 
captain  can  only  be  effected  by  the  nomination 
of  the  President  with  the  advice  and  consent 
of  the  Senate.  The  mere  entry,  therefore,  in 
the  official  Army  Register  of  the  name  and 
rank  of  the  appellant  would  not  operate  to 
entitle  him  to,  or  to  control,  such  promotion. 
That  must  rest  primarily  vipon  the  judgment 
and  discretion  of  the  President. "  (U.  S.  ex 
rel.  Edwards  v.  Root,  24  App.  D.  C,  419,  431; 
file  27231-8,  Feb.  7,  1911.) 

WTiile  the  wTit  of  mandamus  may  now  be 
regarded  as  having  become  a  writ  of  right,  there 
is  yet  a  sound  judicial  discretion  reposing  in 
the  courts,  even  though  the  petitioner  for  it 
may  be  technically  entitled  to  it,  to  refuse  to 
grant  it  when  its  issuance  would  not  promote 
the  substantial  ends  of  justice,  or  when  it 
would  be  without  beneficial  results  to  the 
relator  or  petitioner.  (Dancy  v.  Clark,  24  App. 
D.  C,  487;  see  file  27231-8,  Feb.  7,  1911.) 

A  mere  abstract  right  unattended  by  any 
substantial  benefit  to  the  relator  will  not  be 
enforced  by  mandamus;  the  writ  will  issue  to 
enforce  only  a  right  the  denial  of  which  affects 
the  party's  pecuniary  interest,  and  the  writ 
must  be  denied  where  the  value  of  the  thing  in 
demand  is  insignificant  and  no  substantial  inter- 
est is  involved.     (See  file  27231-8,  Feb.  7, 191L) 

Where  the  petition  for  a  writ  of  mandamus  is 
merely  an  attempt  to  obtain  a  decision  of  the 
court  with  a  view  to  using  such  dscision  in  fur- 
therance of  claims  undoubtedly  to  be  presented 
Ijy  petitioner  later,  it  should  not  be  granted. 
(See  file  27231-8,  Feb.  7,  1911.)  .  "The  grant 
of  the  writ  in  this  instance  in  the  circumstances 
in  which  we  find  the  case  can  have  but  one 
effect;  that  is,  to  encourage  *  *  *  in  future 
petty  Litigation  for  the  fees  and  emoluments  of 
the  office.     The  writ  of  mandamus  should  not 


345 


Sec.  417. 


Pl.t.  REVISED  STATUTES. 


Navy  Department. 


1)6  used  for  such  purpose."  (State  r.  Finlov, 
74  Mo.  App.  213,  216;  see  file  27231-8,  Feb.  7, 
1911.) 

"The  principle  that  there  can  be  no  inter- 
ference 01  the  courts  with  the  performance  of  the 
ordinary  duties  of  the  executive  departments  is 
too  well  established  for  the  court  to  group  the 
authorities."  (Medrick  r.  U.  S.,  44  Ct.  (Jls., 
469,  481.) 

The  coiuts  will  hesitate  before  requiring  the 
executive  heads  of  the  departments  of  the  Gov- 
ernment to  abandon  their  construction  of  de- 
partmental regulations,  and  their  administra- 
tive action  thereunder.  (Hitchcock  v.  U.  S., 
22  App.  D.  C.,275.) 

The  national  courts  can  not  rightfully  inter- 
fere with  executive  action  in  any  case  where  an 
executive  oflicer  is  authorized  to  exercise  judg- 
ment or  discretion  in  the  performance  of  an 
official  act.  (Taylor  v.  Kercheval,  82  Fed. 
Rep.,  497.) 

The  coiuts  can  not  properly  interfere  with 
executive  action,  either  by  mandamus  or  in- 
junction, in  a  matter  in  which  the  executive  offi- 
cer is  authorized  to  exercise  his  judgment  or  dis- 
cretion.    (Dudley  v.  James,  83  Fed.  Rep. ,  345.) 

The  courts  have  no  power  by  mandamus  to 
compel  an  executive  officer  to  perform  an  act 
which  is  discretionary  with  him.  (U.  S.  v. 
Leamen,  17  How.,  225;  Gaines  v.  Thompson, 
7  Wall. ,347;  Cox i'.  U.  S.,  9  Wall.,  298;  V.^.v. 
Black,  128  U.  S.,  40;  U.  S.  v.  Hitchcock,  205 
U.  S.,  80,  affirming  26  App.  D.  C,  290.) 

The  courts  of  the  United  States  have  no  au- 
thority to  enjoin  the  officers  of  the  Government 
against  performing  any  act  not  merely  minis- 
terial, but  involving  the  exercise  of  discretion. 
(McEbathr.  Mcintosh,  16  Fed.  Cas.  No.  8781; 
Gaines  v.  Thompson,  7  Wall.,  347;  Maese  v. 
Hermann,  17  App.  D.  C,  52,  affirmed  183 
U.  S.,  572;  Cummins  Co.  v.  Burleson,  40  App. 
D.  C,  500;  Louisiana?).  McAdoo,  234U.  S.,  627; 
Bee  also,  to  same  effect.  Enterprise  Sav.  Assn. 
V.  Zumstein,  67  Fed.  Rep.,  1000;  Walker  v. 
Smith,  21  How.,  579;  Litchfield  v.  Register, 
15  Fed.  Cas.  No.  8388,  affirmed  Litchfield  v. 
Richards,  9  Wall.,  575;  Koehler  v.  Barin,  25 
Fed.  Rep.,  161;  Sioux  City,  etc.,  R.  Co.  v. 
U.  S.,  34  Fed.  Rep.,  835;  Lane  v.  Anderson, 
67  Fed.  Rep.,  563;  Chapman  v.  Keindel,  46 
Fed.  Rep.,  99.) 

WTiere  the  head  of  a  department  in  construing 
a  statute  has  placed  a  construction  thereon 
which  is  a  possible  one,  and  has  acted  accord- 
ingly, his  action  will  not  be  restrained  by  in- 
junction.   (O'Brient).  Lane,  40App.D.C.,  493.) 

WTiere  an  act  of  Congress,  proAiding  for  an  in- 
creaae  and  reorganization  of  the  Army,  imposed 
upon  the  President  and  Secretary  of  War  many 
and  complicated  duties  in  carrying  out  its  pur- 
pose, it  would  require  a  Aery  plain  and  unmis- 
takable departure  from  its  provisions  to  justify 
the  judiciary  in  interposing  by  mandamus  to 
control  and  reverse  the  action  of  the  War  De- 
partment in  its  work  of  reorganization.  (U.  S. 
1).  Root,  22  App.  D.  C,  419.) 

Mandamus  may  not  lawfully  issue  to  com- 
mand or  control  an  executive  officer  in  the  dis- 
charge of  those  of  his  duties  which  involve  the 
exercise  of  his  judgment  or  discretion,  either  in 
the  construction  of  the  law  or  in  determining  the 
existence  or  effect  of  the  facts,  though  there 


may  l)e  no  other  method  of  review  or  correction 
provided  by  law.  (KimberUn  v.  Commission, 
105  Fed  Rep.,  653.) 

The  Secretiu-y  of  State  is  the  confidential 
])olitical  agent  of  the  President  for  the  execu- 
tion of  hiri  will  in  matters  committed  to  his  dis- 
cretion l)y  the  Constitution;  and  to  coerce  the 
action  of  the  Secretary  is  to  attempt  the  coer- 
cion of  the  President.  (U.  S.  v.  Hay,  20  App. 
D.  C.,576.)  ^^ 

^\'hateve^  may  be  thought  of  the  propriety  of 
a  particular  direction  of  the  President  to  the 
Secretary  in  respect  to  the  business  of  his  de- 

{)artment,  the  latter  simply  compUes  with  the 
aw  in  ol>eying  that  direction,  and  mandamus 
will  not  lie  to  compel  him  to  a  contrary  course. 
(U.  S.  V.  Bayard,  4  Mackey,  D.  C,  310.) 

It  being  the  duty  of  the  Secretary  of  State,  in 
the  conduct  of  every  matter  which  constitutes 
a  part  of  the  business  of  his  department,  to  act 
"in  such  manner  as  the  President  shall  direct,  " 
and  the  acts  of  the  Secretary  in  matters  which 
the  President  is  authorized  to  direct  being  pre- 
sumed to  have  been  directed  by  the  President 
the  Secretary  can  not  be  compelled  by  manda- 
mus to  pay  over  to  a  claimant  moneys  received 
from  Spain  in  satisfaction  of  a  judgment  in  his 
favor,  as  in  refusing  pajonent  the  Secretary  is 
presumed  to  be  acting  under  the  dii-ection  of 
the  President  and  therefore  according  to  law. 
(U.  S.  V.  Bayard,  4  Mackey,  D.  C,  310;  but  see 
U.  S.  V.  Bayard,  5  Mackey,  D.  C,  428.) 

The  decision  of  the  head  of  a  department  in 
restoring  an  attorney  to  good  standing  who  had 
previously  been  disbarred  can  not  be  rcAdewed 
by  the  courts  where  the  order  of  restoration  is 
not  completely  satisfactory  to  the  attorney.  As 
the  order  of  restoration  was  made  in  the  exer- 
cise of  the  Secretary's  unquestioned  jurisdic- 
tion, the  court  has  no  power  tc  review  his  judg- 
ment.    (U.  S.  V.  BalUnger,  35  App.  D.  C,  520.) 

Under  the  Constitution  the  Supreme  Coiut  of 
the  United  States  has  no  power  to  issue  a  writ 
of  mandamus  to  the  head  of  an  executive  depart- 
ment  in  the  city  of  Washington;  the  issue  of 
such  writ  being  the  exercise  of  an  original  juris- 
diction not  conferred  by  the  Constitution. 
(Marbury  v.  Madison,  1  Cranch,  137.) 

The  Supreme  Court  of  the  United  States  has 
neither  an  original  nor  an  appellate  jurisdiction 
to  issue  a  mandamus  to  persons  holding  offices 
under  the  authority  of  the  United  States. 
(McClung  V.  Silliman,  2  Wlieat.,  369.) 

Mandamus  will  not  lie  to  the  head  of  a  depart- 
ment to  direct  a  subordinate  official  to  perform 
a  mere  ministerial  duty,  such  as  countersigning 
a  check.  If  the  duty  be  a  mere  ministerial  one, 
no  order  of  the  head  of  the  department  could  be 
justification  for  refusal  on  the  part  of  the  subor- 
dinate to  perform  it.  (Hitchcock  v.  U.  S.,  22 
App.  D.  C,  275.) 

The  United  States  can  not  be  bound  by  a 
decision  relating  to  its  property  rendered  in 
mandamus  proceedings  against  the  Secretary 
of  the  Navy.  The  United  States  is  not  a  party 
to  such  mandamus  proceedings,  and  can  not 
be  "interfered  with  behind  its  back."  (Gold- 
berg V.  Daniels,  231  U.  S.,  218.) 

As  to  jurisdiction  of  the  courts  with  reference 
to  the  appointment,  removal,  and  assignment  to 
duty  of  public  officers,  see  cases  noted  under 
section  416,  Revised  Statutes. 


846 


Navy  Departraent. 


Pt.2.  REVISED  STATUTES. 


Sec.  417. 


As  to  freedom  of  Federal  officers  from  inter- 
ference by  State  courts,  see  note  to  Constitution 
Article  I,  section  8,  clause  13. 

For  other  decisions  on  subject  of  mandamus, 
see  note  to  section  236,  Re\ised  Statutes. 

When  courts  will  interfere  with  business 
of  department.— While  the  head  of  a  govern- 
mental department  is  not  subject  to  mandamus 
in  any  matter  involving  the  exercise  of  discre- 
tion, this  writ  may  issue  against  him  in  relation 
to  matters  wherein  he  performs  a  mere  ministe- 
rial duty.  (Marbury  v.  ]\Iadison,  1  Cranch,  137 ; 
Kendall  v.  U.  S.,  12  Pet.,  524;  Board  of  Liqui- 
dation of  Louisiana  v.  McCombs,  92  U.  S.,  531.) 

In  a  case  where  it  is  sought  by  mandamus  to 
compel  a  public  officer  to  perform  a  certain  act, 
the  question  is  whether  the  act  is  of  a  ministe- 
rial or  of  a  judicial  character,  as  those  terms 
have  been  defined  and  Hmited  by  the  courts; 
for  there  is  no  ministerial  act  to  which  the  wut 
would  be  applicable  that  does  not  in  some  meas- 
lu-e  and  to  some  extent  involve  ttie  exercise  of 
judgment  and  discretion;  and  there  are  acts 
apparently  judicial  which  ai-e  not  such  in  con- 
templation of  law.  (Payne  v.  U.  S.,  20  App. 
D.C.,  581.) 

Mandamus  may  issue  to  command  an  execu- 
tive officer  to  act  and  to  decide,  though  his  act 
and  decision  involve  the  exercise  of  judgment 
and  discretion;  but  in  such  case  it  may  not  di- 
rect him  in  what  particuar  way  or  in  whose  favor 
he  shall  decide.  (Kimberhn  v.  Commission, 
105  Fed  Rep.,  653.) 

Courts  will  not  compel  executive  officers  to 
perform  their  ofiicial  duties,  even  though  such 
duties  require  an  iuterpretatioti  of  the  law, 
unless  they  refuse  to  act  at  all,  or  the  act  which 
it  is  sought  to  compel  them  to  perform  is  purely 
ministerial.     (U.  S.  v.  Windom,  137  U.  S.,  636.) 

While  the  exercise  of  discretion  by  executive 
officers  acting  witliin  the  scope  of  their  au- 
thority will  not  be  questioned  by  mandamus, 
when  such  ofiicers  exceed  their  authority  and 
act  without  warrant  of  law,  mandamus  will  lie. 
(Griffin  v.  U.  S.,  30  App.  D.  C,  177,  188,  190; 
31  App.  D.  C,  231,  232,  233,  234.) 

The  court  is  powerless  to  direct  the  action  of 
an  executive  officer  by  mandamus  unless  a 
positive  legal  right  is  being  invaded  by  him  in 
violation  of  a  duty  clearly  imposed  upon  him 
by  law;  and  such  duty  must  be  so  plain  and 
positive  that  he  has  no  discretion  left.  (Moore 
V.  U.  S.,  32  App.  D.  C,  243.) 

While  the  action  of  an  officer  clothed  with  a 
discretion  is  not  reviewable  if  exercised  upon 
matters  left  to  his  discretion,  yet  his  judgment 
as  to  the  extent  of  his  discretion  under  the  law, 
and  the  matters  on  which  it  may  be  exercised, 
are  re^^ewable  on  mandamus;  and  where  a 
discretion  is  abused  and  made  to  work  injustice, 
it  may  be  controlled  by  mandamus.  (U.  S.  v. 
Custis,  35  App.  D.  C,  247;  see  also  U.  S.  v. 
Cortelyou,  26  App.  D.  C,  298.) 

The  necessary  ground  of  an  application  for  the 
writ  of  mandamus  against  an  executive  officer 
of  the  LTuited  States  is  that  it  shall  appear  that 
he  has  been  charged  by  law  with  the  perform- 
ance of  a  specific  official  duty  to  which  the 
petitioner  is  entitled,  and  that  he  refuses  to 
perform  that  duty.  (U.  S.  v.  Bayard,  4  Mackey, 
D.C.,310.) 


While  the  lawful  exercise  of  discretion  by 
public  agents  and  officei's  can  not  be  controlled 
by  mandamus,  the  writ  will  Lie  to  compel  the 
person  or  body  in  whom  the  discretion  is 
lodged  to  proceed  to  exercise  its  discretion, 
and  in  case  the  manner  of  such  exercise  has 
been  prescribed  by  law,  to  compel  the  person 
or  body  not  to  proceed  in  any  other  way. 
(Huidekoper  II.  Hadley,  177  Fed.  Rep.,  1.) 

Mandamus  is  the  proper  remedy,  and  the  only 
remedy  to  compel  the  auditor  of  the  Panama 
Canal  to  pay  the  United  States  judge  for  the 
Canal  Zone  the  salary  proAdded  by  law  for  the 
latter,  the  auditor's  refusal  being  based  upon 
an  alleged  indebtedness  of  the  judge  to  the 
United  States.  (Smith  r.  Jackson,  241  Fed. 
Rep.,  747;  affirmed  Smith  r.  Jackson  (246 
U.  S.,  388). 

Mandamus  will  lie  to  compel  the  Secretary 
of  State  to  pay  over  money  to  which,  under  an 
act  of  Congress,  the  petitioner  has  a  clear  legal 
right;  and  the  Secretarj^  can  not  justify  under 
an  order  from  the  President.  (U.  S.  v.  Bayard, 
5  Mackey,  D.  C.,  428.) 

Mandamus  will  lie  to  compel  the  members  of 
the  Board  of  Labor  Employment  at  tlie  United 
States  usivy  yard  in  the  city  of  Washington,  to 
register  an  applicant  for  examination  for  em- 
ployment as  mechanic  or  laborer,  where  they 
rest  their  refusal  solely  on  the  gi'ound  that  the 
applicant  is  not  a  citizen  of  the  United  States, 
although  a  resident  of  Porto  Rico,  and  owing 
allegiance  to  the  United  States.  Rule  5  of 
the  Civil  Service  Commission,  promulgated  by 
the  President  April  15,  1903,  which  modifies 
previous  regulations  of  the  Navy  Department, 
provides  that  "no  person  shall  be  admitted 
to  examination  unless  he  be  a  citizen  of  or 
owe  allegiance  to  the  United  States";  and  that 
an  applicant  who  claims  citizenship  by  virtue 
of  residence  in  Porto  Rico  and  who  shows  birth 
or  naturalization  in  Porto  Rico,  will  not  be 
required  to  show  further  evidence  of  citizen- 
ship.    (U.  S.  V.  Bowyer,  25  App.  D.  C,  121.) 

The  members  of  the  United  States  Board  of 
Labor  Employment  at  the  United  States  navy 
yard  in  the  city  of  Washington  are  ministerial 
officers,  and  their  duty  to  register  an  applicant 
for  employment  does  not  cease  to  be  ministerial 
because  they  rest  their  refusal  of  the  registration 
on  the  determination  of  a  pure  question  of  law, 
involving  the  ascertainment  of  no  fact  what- 
ever.    (U.    S.    V.    Bowyer,    25    App.    D.    C, 

121-) 

The  covu-ts  of  the  District  of  Columbia  have 
power  by  mandamus  proceedings  to  compel  the 
head  of  an  executive  department  in  the  city  of 
Washington  to  do  a  ministerial  act.  (Kendall 
V.  U.  S.,  12  Pet.,  524;  affirmed  Decatur  v. 
Paulding,  14  Pet.,  497.) 

A  cabinet  officer  may  be  enjoined  from  doing 
an  act  which  was  not  authorized  by  the  statutes 
under  which  he  assumed  to  act.  (American 
School  of  Magnetic  Healing  v.  McAnnulty,  187 
U.  S.,  94;  see  also  Caldwell  v.  Robinson,  59 
Fed.  Rep.,  053;  Frayser  v.  Russell,  9  Fed.  Cas. 
No.  5067;  Kirwin  v. Murphy,  83  Fed.  Rep.,  275, 
170  U.  8.,  205;  Sang  Lung  v.  Jackson,  85  Fed. 
Rep.,  502;  Wong  Wai  v.  Williamson,  103  Fed. 
Rep.,  1;  Lane  v.  Watts,  234  U.  S.,  525,  affinuing 
41  App.  D.  C,  139.) 


54641°— 22- 


■23 


347 


Sec.  417. 


Pt.e.  REVISED  STATUTES. 


Navy  Department. 


\Miere  a  Cabinet  officer  reopens  and  read- 
judicates  a  case  decided  by  iiis  predecessor, 
there  being  no  contention  that  tlie  loriuer  deci- 
ftion  was  obtained  by  fraud,  and  the  hiw  ])ro- 
viding  that  such  decision  sliuuhl  bi*  "final  and 
conclusive,"  a  court  of  equity  has  jurisdiction 
to  re(|uire  such  officer  to  recop:nize  and  enforce 
the  prior  decision.  (Mickadiet  r.  Lane,  43 
App.  1).  ('.,  41i.) 

Subpcenas  for  heads  of  departments. — 
See  note  to  Constitution.  Article  II,  section  1, 
clause  1,  and  section  871,  Revised  Statutes; 
see  also  note  to  section  418,  Revised  Statutes, 
concerning  power  of  courts  to  compel  produc- 
tion of  public  records  and  documents. 

Decisions  of  heads  of  departments  not 
binding  on  courts. — If  a  suit  should  come 
before  the  Supreme  Court  which  Involved  the 
construction  of  any  of  the  laws  imposing  duties 
on  the  heads  of  the  executive  departments,  the 
court  certainly  would  not  be  bound  to  adopt  the 
construction  given  by  the  head  of  the  depart- 
ment; and  if  they  supposed  his  decision  to  be 
wrong,  they  would  of  course  so  pronounce  their 
judgment.  But  the  judgment  of  the  court  upon 
the  construction  of  a  law  must  be  given  in  a  case 
in  which  they  have  jurisdiction,  and  in  which  it 
is  their  dutv  to  interpret  the  act  of  Congress. 
(Decatur  v.  Paulding,  ]4  Pet.,  497.) 

Whatever  the  conclusiveness  of  executiv'e 
acts  so  far  as  executive  departments  are  con- 
cerned, IS  a  rule  of  administration,  it  has  long 
been  settled  that  the  action  of  executive  officers 
in  matters  of  account  and  pajonent  can  not  be 
regarded  as  a  conclusive  determination  when 
brought  in  question  in  a  court  of  justice.  (Wis- 
consin Cent.  R.  Co.  v.  U.  S.,  164  U.  S.,  205. 
For  other  cases,  see  note  to  sec.  236,  R.  S.) 

Where  the  head  of  a  department  is  authorized 
by  law  to  ascertain  "the  legal  heirs"  of  a  dece- 
dent, and  it  is  pro\nded  that  his  decision  shall 
be  "final  and  conclusive,"  this  does  not  mean 
that  he  could  arbitrarily  ignore  the  leeal  heirs 
and  decide  in  favor  of  a  collateral  heir  or  a 
stranger  in  blood;  and  when  he  does  this,  his 
decision  is  arbitrary  and  capricious  and  not 
binding  on  the  courts.  (Mickadiet  v.  Lane, 
43  App.  D.  C,  414.) 

Decisions  of  heads  of  departments  are 
binding  on  their  successors.^ — "The  law  is 
well  settled  'that  puldic  officers  can  not  open 
and  reexamine  cases  decided  1  y  their  predeces- 
sors except  for  fraud,  mistake  in  matters  of  fact 
arising  from  errors  in  calculations,  or  newly  dis- 
covered material  cA-idence.'  "  (Maine  v.  tj.  S., 
36  Ct.  Cls.,  531,  553,  quoting  W'addell  v.  TJ.  S., 
25  Ct.  Cls.,  325,  328,  and  cases  there  cited.) 

"It  has  long  been  held  in  the  executive 
departments  that  when  a  claim  or  controversy 
between  the  United  States  and  individuals 
therein  pending  has  once  been  fully  considered, 
and  fnal  action  and  determination  had  thereon 
by  any  executive  officer  having  jurisdiction  of 
the  same,  it  can  not  be  reopened,  setaside,  anda 
different  result  ordered  by  any  successor  of 
such  officer,  except  for  fraud,  manifest  error  on 
the  face  of  the  proceedings,  such  as  a  mathe- 
matical miscalculation  or  newly  discovered 
CA-idence,  presented  within  a  reasonable  time 
and  under  such  circumstances  as  would  be  a 
sufficient  cause  for  gi-anting  a  new  trial  in  a 
court  of  law.    This  ruling  and  practice  of  the 


departments  has  been  approved  elsewhere  and 
has  been  sustained  by  the  courts."  (Rollins 
and  Presbrey  v.  U.  S.,  23  Ct.  Cls.,  123,  citing, 
9  Op.  Atty.'Gen.,  34;  12  Op.  Atty.  Gen.,  172, 
358;  14  Op.  Atty.  Gen.,  387,  456;  14  Op.  Atty. 
Gen.,  275;  U.  S.  v.  Bank  of  Metropolis,  15  Pet., 
401 ;  Lavelette's  case,  1  Ct.  Cls.,  147;  Jackson's 
case.  19  Ct.  Cls.,  504;  State  of  Illinois  case,  20 
Ct.  Cls.,  342;  McKee's  case,  12  Ct.  Cls.,  560; 
Day's  case,  21  Ct.  Cls.,  264;  and  opinion  of  the 
Judiciary  Committee  of  the  Senate,  reported 
by  Senator  and  Judge  David  Da\TS,  quoted  in 
Jackson's  case,  above  referred  to.) 

"The  doctrine  of  res  judicata  [a  thing  adju- 
dicated— meaning  that  a  specific  case  which 
has  once  been  finally  adjudicated  can  not  l^e 
reopened]  as  being  applicable  to  the  jiuisdic- 
tion  of  the  head  of  a  department  is  fully  recog- 
nized by  this  court  in  several  adjudications." 
(Day  V.  U.  S.,  21  Ct.  Cls.,  264.) 

"It  is  desirable  upon  all  accounts  that  there 
should  be  an  end  of  controver.'^ies.  *  *  * 
Unless  such  is  the  case,  as  each  successive 
incumbent  of  one  of  the  great  administrative 
offices  assumes  his  position  he  may  be  com- 
pelled to  review  all  the  decisions  of  his  prede- 
cessors which  have  been  against  applicants  and 
claimants."     (15  Op.  Atty.  Gen.,  315.) 

It  is  "a  rule  of  action  prescribed  to  itself  by 
each  administration,  to  consider  the  acts  of  its 
predecessors  conclusive,  as  far  as  the  Executive 
is  concerned.  It  is  but  a  decent  degree  of 
respect  for  each  administration  to  entertain  of 
its  predecessor,  to  suppose  it  as  well  qualified 
as  itself  to  execute  the  laws  according  to  the 
intention  of  their  makers;  and  not  to  set  an 
example  of  review  and  reversal,  which,  in  its 
turn,  may  be  brought  to  bear  upon  itself,  and 
thus  keep  the  acts  of  the  Executive  perpetually 
unsettled  and  afloat.  In  conversing  with 
President  Adams  on  this  subject,  I  understood 
him  to  concur  in  the  general  rule  of  considering 
all  acts  of  the  preceding  administration  as 
final;  and,  although  pailial  injuries  may  now 
and  then  remain  unredressed  by  the  operation 
of  this,  in  common  with  all  other  general  rules, 
yet  it  is  better  to  bear  that  partial  evil,  or  leave 
it  to  legislative  redress,  than  to  introduce  the 
more  extensive,  incalculable  evils  which  must 
result  from  considering  all  the  past  acts  of  all 
the  past  Executives  as  open  to  reconsideration 
and  readjudication,  at  the  pleasure  of  the  indi- 
viduals who  were  interested  in  them.  And 
if  a  decision  made  in  regard  to  these  gentlemen, 
eight  years  ago,  during  the  presidency  of  ^Mr. 
Monroe,  is  open  to  reA-iew  and  reversal,  I  do 
not  see  upon  what  principle  of  discrimination 
we  can  refuse  to  reA'iew  and  reverse  a  decision 
made  during  the  presidency  of  Mr.  Washington, 
upon  the  application  of  any  other  indi\idual 
supposing  liimself  aggrieved  by  it."  (2  Op. 
Atty.  Gen.,  9.) 

If  the  present  administration  has  authority 
to  rcA-iew  the  acts  of  its  predecessors,  "the  Exec- 
utive which  is  to  follow  us  must  have  the  like 
authority  to  re\-iew  and  unsettle  our  decisions, 
and  to  set  up  again  those  of  our  predecessors; 
and  upon  this  principle,  no  question  can  be 
con.sidered  as  finally  settled.  The  establish- 
ment of  such  a  principle,  besides  the  uncer- 
tainty and  confusion  just  noticed,  would  throw 
upon  the  Executive  a  load  of  duties  which  it 


348 


Navy  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  417. 


could  not  possibly  sustain.  Each  administra- 
tion has  already  as  much  as  it  can  do,  in  the 
current  business  which  belongs  to  it;  but  if  to 
this  is  to  be  superadded  the  burden  of  reviewing 
all  the  acts  of  preceding  administrations  by 
which  individuals  may  suppose  themselves  to 
have  been  aggrieved,  it  is  manifest  that  the 
biu-den  will  become  immediately  insupport- 
able."    (2  Op.  Atty.  Gen.,  9.) 

"The  principle  has  been  so  frequently  de- 
clared that  the  final  decision  of  a  matter  before 
the  head  of  a  department  is  binding  upon  his 
successors  in  the  same  department,  under  cer- 
tain well-defined  exceptions,  that  it  is  now 
entitled  to  be  regarded  as  a  settled  rule  of 
administrative  law.  (See  on  this  subject. 
United  States  v.  Bank  of  Metropolis,  15  Pet., 
401;  Opinion  of  Mr.  Wirt,  2  Opins.,  9;  of  Mr. 
Taney,  2  Opins.,  464;  of  Mr.  Nelson,  4  Opins., 
341;  of  Mr.  Toucey,  5  Opins.,  29;  of  Mr.  Johnson, 
5  Opins.,  123;  of  Mr.  Black,  9  Opins.,  101,  301-2, 
387;  of  Mr.  Stanberry,  12  Opins.,  358;  of  Mr. 
Hoar,  dated  Apr.  26,  1869,  in  relation  to  the 
case  of  Admiral  Goldsborough ,  ante,  p.  33;  and 
another,  dated  May  5,  1870,  in  relation  to  the 
claim  of  George  Chorpenning,  ante,  p.,  226;  all 
of  which  authorities  are  cited  and  approved  in 
a  recent  opinion  addressed  to  you  by  the  Attor- 
ney General,  dated  Mar.  7,  1871,  in  the  case  of 
R.  C.  Sargent  and  others  against  the  Western 
Pacific  Railroad  Company.)  None  of  the  ex- 
ceptions referred  to  are  shown  to  exist  in  the 
case  submitted;  and  thus,  as  it  seems  to  me,  the 
rule  just  stated  being  properly  applicable  here, 
under  its  operation  you  clearly  have  no  author- 
ity to  disturb  the  decision  of  your  predecessor 
or  reopen  the  case  finally  determined  by  him. " 
(13  Op.  Atty.  Gen.,  457.) 

The  head  of  a  depaitment  is  without  jurisdic- 
tion to  reopen  and  readjudicate  a  case  finally 
decided  by  his  predecessor,"  there  being  no  alle- 
gation that  the  previous  decision  was  obtained 
by  fraud,  and  it  being,  under  the  law,  "final 
and  conclusive."  In  such  a  case,  it  was  held 
that  a  coiu-t  of  equity  has  jurisdiction  to  order 
the  Secretary  to  recognize  and  enforce  the  for- 
mer decision,  upon  petition  of  parties  injuii- 
ously  affected  by  its  reversal.  (Mickadiet  v. 
Lane,  43_App.  D.  0.,  414.) 

The  principles  enunciated  in  the  authorities 
above  quoted  have  been  consistently  followed 
by  the  Navy  Department  in  the  past  with 
reference  to  decisions  of  previous  administra- 
tions. (File  5252-32,  re  legality  of  appoint- 
ment to  the  Naval  Academy  of  Midshipman 
Douglas,  and  28  Op.  Atty.  Gen.,  180,  in  same 
case;  file  26256-111:2,  naval  service  of  Captain 
Owen  S.  Willey,  U.  S.  R.  C.  S.;  file  11130-6, 
application  of  Captain  Julius  S.  Turrill,  U.  S. 
M.  C,  for  change  in  date  of  commission;  file 
27231^2,  Civil-War  service  of  Captain  Robert 
E.  Impey,  Commander  Charles  A.  Adams, 
Commander  Dennis  W.  Mullan,  and  Chief 
Boatswain  John  B.  F.  Langston,  U.  S.  N., 
retired,  and  file  27231^2:2  and  3,  in  same  cases; 
see  also  file  20971-19:1,  Apr.  14,  1913;  file 
26252-71:2,  Aug.  29,  1913;  file  26836-15,  Nov. 
17,  1913.) 

For  other  cases,  see  note  to  section  236,  Re- 
vised Statutes. 

•  Decision  not  binding  on  successors  ex- 
cept as  to  specific  case  adjudicated. — The 


head  of  an  executive  department  of  the  Govern- 
ment has  the  right  to  reverse  a  departmental 
practice,  based  on  the  decisions  of  a  predeces- 
sor, even  if  a  long-continued  one,  and  such  a 
former  decision  can  be  said  to  have  no  elements 
of  estoppel  or  res  judicata  save  in  respect  of 
subject  matter  finally  settled  and  closed  under 
it.  (Payne  v.  Houghton,  22  App.  D.  C,  234; 
Smith  i).  Payne,  22  App.  D.  C,  463.) 

But  "it  is  almost  as  important  that  the  law 
should  be  settled  permanently  as  that  it  should 
be  settled  correctly.  Its  rules  should  be  fixed 
deliberately  and  adhered  to  firmly,  imless 
clearly  erroneous.  Vacillation  is  a  serious 
evil."  (File  5252-68.  May  15,  1915,  quoting 
Oilman  v.  Philadelphia,  3  Wall.,  724.) 

According  to  the  doctrine  of  stare  decisis, 
where  a  statute  has  been  construed  by  the 
Navy  Department  in  a  previous  administration 
and  such  construction  is  not  clearly  erroneous, 
the  matter  should  be  regarded  as  settled  so  far 
as  the  law  is  concerned,  and  the  previous  con- 
struction should  not  be  disturbed.  (File  5252- 
68,  May  15,  1915.) 

The  Navy  Department  having  decided  in  a 
specific  case  that  the  law  does  not  prohibit  the 
appointment  of  an  alien  to  the  Naval  Academy, 
although  he  can  not  be  commissioned  as  an 
officer  without  in  the  meantime  becoming  a 
citizen,  and  this  decision  not  being  "clearly 
erroneous,"  it  should  be  adhered  to  as  the  cor- 
rect interpretation  of  the  law,  but  the  regula- 
tions may  be  amended  so  as  to  prohibit  the 
appointment  of  aliens  to  the  Naval  Academy, 
this  not  being  contrary  to  statute.  (File  5252- 
68,  May  15,  1915.) 

No  change  in  a  usage  can  have  a  retroactive 
effect,  but  must  be  limited  to  the  future.  (U. 
S.  V.  Macdaniel,  7  Pet.,  1,  15;  see  also  Camp- 
bell V.  U.  S.,  107  U.  S.,  407.)  Where  payments 
have  been  made  under  a  long-continued  prac- 
tice of  the  administrative  department,  sanc- 
tioned by  the  accounting  officers  of  the  Treas- 
ury, payments  so  made  by  disbursing  officers 
prior  to  the  promulgation  of  a  Comptroller's 
decision  reversing  the  former  construction  of 
the  law,  if  otherwise  correct,  will  be  passed  to 
their  official  credit.  (20  Comp.  Dec,  182;  see 
also  Comp.  Dig.,  295,  296.  In  this  connec- 
tion, consult  Muhlker  v.  New  York  &  Harlem 
R.  Co.,  197  U.  S.,  544;  Gelpcke  v.  Dubuque,  1 
WaU.,  175;  Ohio  Life  &  Trust  Co.  v.  Debolt,  16 
How.,  432;  compare  Weber  v.  Rogan,  188  U.  S., 
10,  and  cases  there  cited.) 

Jurisdiction  of  Secretary  of  the  Navy 
and  accounting  officers  of  the  Treasury.— 
See  cases  collected  on  this  subject  in  note  to 
section  236,  Revised  Statutes. 

Secretary  of  the  Navy  will  not  decide 
hypothetical  questions. — The  official  busi- 
ness of  the  Navy  Department  is  such  that  it  is 
compelled  to  decline  answering  hypothetical 
questions,  assuming  facts  which  may  never 
actually  be  presented  to  the  person  requesting 
decision.  As  was  stated  by  the  Attorney 
General  in  an  opinion  to  the  Secretary  of  the 
Treasury,  "you  will  readily  perceive  the 
incon\^enience  of  giving,  upon  a  hypothetical 
case,  an  opinion  which,  upon  the  consideration 
of  an  actual  case,  might  require  modification 
on  account  of  circumstances  not  imagined, 
and,  therefore,  not  considered  in  the  prepara- 


349 


Sec.  417. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


tion  of  the  opinion."  (File  26287-1776,  Oct. 
28,  1913,  citins;  13  Op.  Atty.  Gen.,  531.  See 
in  this  fonn('(^tion.  note  to  sec.  3r>0,  R.  S.) 

Legal  liability  of  Secretary  for  official 
acts. — Th(>  head  of  a  department  incurH  no 
personal  liability  in  appro^^nQ;  by  his  si,i:;nature 
voncherg  or  other  instrnnients  in  writins;  in- 
vohing  the  expenditure  of  public  moneys  if 
he  acts  in  reliance  upon  properly  chosen  sub- 
ordinates \vhose  ability  and  pood  faith  he  has 
no  rea-son  to  question,  even  if  it  turns  out  that 
the  voucher  or  other  instrument  should  not 
haA-e  been  executed.  The  head  of  a  depart- 
ment must,  of  course,  exercise  due  care  in 
every  ofRcial  act  connected  wnth  his  depart- 
ment. But  as  his  ])ersonal  investigation  of 
every  detail  is  in  the  nature  of  things  impos- 
sil)le,  he  has  a  right  to  act  in  reliance  upon 
properly  chosen  subordinates  whose  ability  and 
good  faith  he  has  no  reason  to  question.  (20  Op. 
Atty.  Gen.,  573.) 

The  same  general  considerations  of  public 
policy  which  demand,  for  judges  of  courts  of 
superior  jurisdiction,  immunity  from  civil 
siuta  for  damages  arising  from  acts  done  by 
them  in  the  course  of  the  performance  of  their 
judicial  functions,  apply  to  a  large  extent  to 
oflicial  communications  made  by  heads  of 
executi^-e  departments  when  engaged  in  the 
discharge  of  the  duties  imposed  upon  them  by 
law.  The  inteiests  of  the  people  requiie  that 
due  protection  be  accorded  to  them  in  respect 
of  tlieir  official  acts.  As  in  the  case  of  a  judicial 
officer,  a  distinction  exists  between  action 
taken  b>'  the  head  of  a  department  in  reference 
to  matters  which  are  manifestly  or  palpably 
beyond  his  authority  and  action  having  more 
or  less  connection  mth  general  matters  com- 
mitted by  law  to  his  control  or  supervision. 
Whatever  difficulty  may  aiise  in  applying  these 
principles  to  particular  cases  in  which  the 
richts  of  the  citizen  may  have  been  materially 
imjiaired  by  the  inconsiderate  or  wrongful 
action  of  the  head  ot  a  department,  it  is  clear 
that  he  can  not  be  held  liable  to  a  chnl  suit  for 
damages  on  account  of  official  communications 
made  by  him  pursuant  to  an  act  of  Congress 
and  in  respect  of  matters  witliin  his  authoiity 
by  reason  of  any  personal  motiA'e  that  might 
be  alleged  to  have  prompted  his  action,  for 
personal  motives  can  not  be  imputed  to  duly 
authorized  otficial  conduct.  In  exercising  the 
functions  of  his  office  the  head  of  an  executive 
dej)artment,  keeping  within  the  limits  of  his 
authority,  should  not  be  under  an  apprehension 
that  the  motives  that  control  his  official  conduct 
may  at  any  time  become  the  subject  of  inquiry 
in  a  civil  suit  for  damages.  It  would  seriously 
cripple  the  ])roper  and  effective  administration 
of  public  affairs  as  intrusted  to  the  executive 
branch  of  the  Goveniment  if  he  were  subjected 
to  any  such  restraint.  He  may  have  legal 
authority  to  act,  but  he  may  have  such  large 
discretion  in  the  premises  that  it  will  not  always 
be  his  absolute  duty  to  exercise  the  authority 
with  which  he  is  invested.  But  if  he  acts, 
having  authority,  Ms  conduct  can  not  be  made 
the  foundation  of  a  suit  against  him  personally 
for  damages,  even  if  the  circumstances  show  that 
he  is  not  disagreeably  impressed  by  the  fact  that 
his  action  injuriously  affects  the  claims  of  par- 
ticular  individuals.    Where    the    head    of    a 


department  does  not  exceed  hie  authority  nor 
pass  the  line  of  his  duty  the  motive  that  im- 
pelled him  to  act  is  wholly  immaterial.  Even 
though  he  acted  maliciously,  that  could  not 
change  the  law.  (Spalding  v.  Vilas,  161  U.  S., 
483;  see  al.so  Hodgson  v.  Dexter,  1  Cranch,  345; 
Lamar  v.  Browne,  92  U.  S.,  187.) 

A  report  made  by  the  chief  of  a  bureau  or 
office  in  a  department  to  the  head  of  the  depart- 
ment as  to  the  merits  of  a  claim  for  a  medal  of 
honor  which  has  been  referred  to  him  for  in- 
vestigation, which  report  contains  nothing  that 
does  not  relate  to  or  reflect  upon  the  alleged 
questionable  character  of  the  claimant  and  the 
want  of  just  foundation  for  his  claim,  is  abso- 
lutely privileged,  notwithstanding  the  motive 
which  may  have  actuated  the  maker,  or  the 
mistakes  of  fact  which  it  may  contain.  If  the 
report  complained  of  as  a  libel  had  been  made 
by  the  head  of  the  department  to  the  President 
for  his  action,  it  could  hardly  be  contended  for 
a  moment  that  an  action  for  libel  could  l)e  main- 
tained against  the  Secretary.  The  latter  is  the 
regularly  constituted  organ  of  the  President  for 
the  administration  of  the  military  establish- 
ment of  the  nation;  and  rules  and  orders  pub- 
licly promulgated  through  him  must  be  received 
as  those  of  the  Executive.  And  as  it  is  impos- 
sible for  a  single  individual  to  perform  in  person 
all  the  various  duties  assigned  to  the  particular 
department  of  which  he  is  head,  he  must  of 
necessity,  under  proper  orders  and  regulations, 
perform  the  larger  portion  of  euch  duties 
through  the  agencies  of  the  heads  of  bureaus 
and  divisions  of  his  department.  But  the  work 
when  done  is  in  contemplation  of  law  the  work 
of  the  department,  and  is  entitled  to  all  the 
privilege  and  protection  that  would  attach  to 
it  if  done  by  the  Secretary  in  person.  It  is, 
therefore,  not  the  particular  position  of  the 
party  making  the  report  or  communication  that 
entitles  it  to  absolute  privilege,  so  much  as  the 
occasion  of  making  it  and  the  reasons  of  public 
policy  for  the  immunity.  (De  Arnaud  v. 
Ainsworth,  24  App.  D.  C,  167;  5  L.  R.  A. 
(N.  S.),  163.) 

The  question  of  motive  is  not  material.  A 
party  is  not  liable  for  the  motives  with  which 
he  discharges  an  official  duty;  nor  is  he  liable 
for  any  mistake  of  fact  he  may  commit  in  the 
course  of  the  exercise  of  that  duty.  Public  pol- 
icy affords  alisolute  protection  and  immunity 
for  what  may  be  said  or  written  by  an  officer 
in  his  official  report  or  communication  to  a 
superior,  when  such  report  or  communication 
is  made  in  the  course  and  discharge  of  official 
duty.  Otherwise  the  perfect  freedom  which 
ought  to  exist  in  the  dischai^e  of  public  duty 
might  be  seriously  restrained,  and  often  to  the 
detriment  of  the  pubUc  service.  Of  course, 
when  a  party  steps  aside  from  duty  and  intro- 
duces into  his  report  or  communication  de- 
famatory matter  wholly  irrelevant  and  foreign 
to  the  subject  of  inquiry,  a  different  question 
is  presented.  (De  Arnaud  v.  Ainsworth,  24 
App.  D.  C,  167;  5  L.  R.  A.  (N.  S.),  163.) 

Section  1547  of  the  Revised  Statutes,  by  ex- 
press terms,  provides  that  orders,  regulations, 
and  instructions  issued  by  the  Secretary  of  the 
Navy  are  to  be  recognized  as  the  regulations  of 
the  Navy.  One  of  these  regulations  directs 
that  "all  officers  through  whom  communica- 


350 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  417. 


tions  from  inferiors  are  to  be  forwarded  to  the  de- 
partment, one  of  the  bureaus,  or  any  authority 
higher  than  themselves,  must  forward  the  same, 
if  couched  in  respectful  language,  as  soon  after 
being  received  as  practicable,  and  they  will 
invariably  state  their  opinion  in  writing,  by 
indorsement  or  otherwise,  in  relation  to  every 
subject  presented  for  decision."  [Similar  pro- 
vision was  contained  in  Art.  1-5305,  Naval 
Instructions,  1913.]  M.  was  a  professor  at  the 
United  States  Naval  Academy  at  Annapolis, 
and  placed  his  resignation  in  the  hands  of  W., 
then  superintendent  of  the  academy,  to  be  for- 
warded to  the  Secretary  of  the  Navy  for  his 
decision.  The  resignation  was  forwarded  by 
W.  with  his  indorsement  thereon  of  reasons 
why  it  should  be  accepted.  In  an  action  for 
libel,  based  upon  this  indorsement,  brought  by 
M.  against  W.,  it  was  held,  (1)  that  the  in- 
dorsement in  question  did  not  fall  within  the 
class  of  communications  which  are  absolutely 
privileged;  (2)  that  it  was,  however,  privi- 
leged to  the  extent  that  the  occasion  of  making 
it  rebutted  the  presumption  of  malice,  and 
threw  upon  the  plaintiff  the  onus  of  proving 
that  it  was  not  made  from  duty,  but  from  actual 
malice  and  without  reasonable  and  probable 
(Maurice  'v.  Worden,  54  Md.,  233.) 


cause. 


The  mere  sending  to  the  head  of  a  depart- 
ment, by  a  subordinate  officer  in  the  course  of 
official  duty,  of  a  communication  reflecting 
upon  the  character  and  conduct  of  a  subordi- 
nate is  not  such  a  publication  as  is  essential  to 
maintain  an  action  for  a  libel.  (Gardner  v. 
Anderson,  9  Fed.  Cas.  No.  5220.) 

Handing  to  another  a  copy  of  a  Senate  docu- 
ment containing  a  report  of  an  official  of  the  War 
Department  adverse  to  a  claim  for  a  medal  of 
honor  for  distinguished  service  in  the  Army  is 
not  a  libelous  publication  of  the  matter  therein 
contained,  since  the  report  is  a  public  document 
which  every  one  may  circulate,  receive,  and 
inspect.  (De  Amaud  v.  Ainsworth,  24  App. 
D.  C,  167;  5  L.  R.  A.  (N.  S.),  163.) 

For  decieions  concerning  the  production  in 
court  of  papers  on  file  in  the  departments,  for 
use  in  libel  suits  against  public  officers,  see  note 
to  section  418,  Revised  Statutes. 

"No  man  in  this  country  is  so  high  that  he  is 
above  the  law.  No  officer  of  the  law  may  set 
that  law  at  defiance  with  impunity.  All  the 
officers  of  the  Government,  from  the  highest  to 
the  lowest,  are  creatures  of  the  law  and  are 
1)oimd  to  obey  it.  It  is  the  only  supreme  power 
in  our  system  of  Government,  and  every  man 
who  by  accepting  office  participates  in  its  func- 
tions is  only  the  more  strongly  bound  to  submit 
to  the  supremacy  and  to  observe  the  liabilities 
which  it  imposes  upon  the  exercise  of  the 
authority  which  it  gives."  (U.  S.  v.  Lee,  106 
U.  S.,  196.) 

Executive  Federal  officers  are  personally  lia- 
ble at  law  in  the  ordinary  forms  of  action  for 
illegal  official  ministerial  acts  or  omissions  to 
the  injury  of  an  indi^ddual.  (U.  S.  v.  Kendall, 
26  Fed.  Cas.  No.  15517;  aflSrmed  Kendall  v. 
U.  S.,  12  Pet.,  526.) 

An  officer  is  bound  to  use  that  care  and  dili- 
gence in  the  discharge  of  his  duties  that  a  con- 
scientious and  pnident  man,  acting  under  a 
just  sense  of  his  obligations,  would  exercise 
under  the  circumstances  of  a  particular  case; 


and  if  he  fails  and  neglects  to  do  so  he  is  culpa- 
ble.    (U.  S.  V.  Baldridge,  11  Fed.  Rep.,  552.) 

Where  a  public  act  or  order  rests  in  executive 
discretion,  neither  the  President  nor  his 
authorized  agent  is  personally  ci\'illy  respon- 
sible for  the  consequences.  (Durand  v.  Hol- 
lins,  8  Fed.  Cas.  No.  4186.) 

For  other  decisions  concerning  legal  liability 
of  public  officers,  see  notes  to  Constitution, 
Article  II,  section  1,  clause  1,  and  Article  I, 
section  8,  clause  13. 

The  signature  of  the  head  of  a  depart- 
ment does  not  require  the  use  of  pen  and  ink, 
held  and  guided  by  the  hand  of  the  person  him- 
self. The  imjjress  of  his  name  with  a  stamp  or 
copperplate  by  himself  or  in  his  presence  ia 
legally  sufficient.     (1  Op.  Atty.  Gen.,  670.) 

The  head  of  a  department  can  not  delegate 
authority  to  other  officers  to  sign  his  name  in 
attestation  of  commissions,  Treasury  warrants, 
passports,  and  the  Like  without  authority  of 
Congress.  If  the  time  occupied  in  signing  his 
name  becomes  a  serious  impediment  to  the 
prompt  p<'rformance  of  his  merely  intellectual 
duties,  relief  should  be  obtained  from  Congress. 
(7  Op.  Atty.  Gen..  594.) 

The  abbreviation  employed  by  the  head  of 
a  department  is  in  legal  contemplation  his 
signature,  if  used  for  that  purpose;  and  if  in 
any  case  it  should  become  material  to  estab- 
lish it  by  evidence,  the  same  testimony  would 
avail  as  would  suffice  to  verify  his  name  written 
out  at  length.     (4  Op.  Atty.  Gen.  187.) 

The  signature  of  a  public  official,  in  the  form 
of  a  facsimile  stamp  affixed  by  a  subordinate 
under  the  direction  of  such  officer  and  ini- 
tialed by  the  subordinate  authorized  to  affix  the 
same,  is  a  valid  signature  and  conveys  the  au- 
thority of  the  officer  in  all  cases  where  he  is 
authorized  to  act.  (31  Op.  Atty.  Gen-.,  349, 
file  22724-39:3.) 

Secretary  of  the  Navy  may  exercise 
powers  vested  by  law  in  subordinates. — 
The  office  of  Commandant  of  the  Marine  Corps 
is  imder  the  direct  supervision  and  control  of 
the  Secretary  of  the  Na\y,  and  its  duties  may 
be  performed  by  him  or  by  the  Acting  Secretary 
while  the  office  of  commandant  is  vacant.  (28 
Op.  Attv.  Gen.,  486,  citing  Swaim  v.  U.  S..  165 
U.  S.,  553,  28  Ct.  Cls.,  221,  in  which  the  courts 
held  that  "a  military  officer  can  not  be  invested 
with  greater  authority  by  Congress  than  the 
Commander  in  Chief.") 

Similarly,  held  that  the  Secretary'  or  Acting 
Secretary  of  the  Navy,  as  the  case  may  be,  may 
sign  all  mail  which  requires  the  signature  of 
the  Chief  of  the  Bureau  of  Steam  Engineering 
during  a  vacancy  in  that  office.  (File  22724-7e, 
May  14.  1909;  compare  Williams  Eng.  and 
Cont.  Co.  V.  U.  S.,  55  Ct.  Cls.,  349.) 

Power  of  Secretary  to  reprimand  sub- 
ordinates.— "No  doubt  the  Secretary  of  the 
Navy  may,  within  his  discretion,  when  he 
believes  it  for  the  good  of  the  service,  send 
communications  to  subordinate  officers  which 
may  be  in  the  nature  of  a  reprimand.  This 
right  is  necessarily  vested  in  him  as  the  chief 
officer  of  a  department;  but  such  communica- 
tions can  not  be  regarded  in  the  nature  of  a  pun- 
ishment as  defined  in  the  Regulations."  (28 
Op.  Atty.  Gen.,  625.) 


351 


Sec.  418. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


"The  assumption  that  the  Secretary  of  the 
Navy  can  not  pronounce  a  rebuke,  public  or 
private,  upon  an  oflicer  for  a  breach  of  dis- 
cipline, or  a  failure  in  the  performance  of  duty, 
without  ol)tiuning  the  sanction  of  a  comt,  is 
an  unlieard  of  proposition.  The  depai-traent 
impartially  awai'ds  praise  or  blame  to  the  officer 
who  deserves  one  or  the  other,  as  occasion  may 
arise;  and  the  practice  is  as  old  as  the  depart- 
ment itself.  Cases  have  occurred  where  the 
department,  without  trial,  has  pronounced 
emphatic  reprimand  upon  officers  in  general 
orders.  The  publicity  that  is  given  either  to  its 
commendation  or  its  reproof  is  a  matter  within 
its  own  discretion,  in  the  exercise  of  which  it 
consults  only  the  public  interests."  (File 
20251-2993,  Mar.  10,  1910,  quoting  letter  of 
Jan.  14,  1891,  to  Commander  George  C.  Reiter, 
U.  S.  Navy;  see  also,  G.  C.  M.  Order  No.9,  Jan. 
31,  1893,  citing  precedents,  and  see  file  26283- 
522,  Feb.  12,  1913.) 

The  Secretary  of  the  Navy  has  authority 
to  detail  enlisted  men  of  the  Marine  Corps  to 
guard  and  protect  property  of  the  Government 
placed  on  exhibition  at  an  exposition.  (20  Op. 
Atty.  Gen.,  576);  to  order  a  naval  detachment 
to  Raleigh,  N.  C.,  to  participate  in  ceremonies 
attending  the  unveiling  of  monument  to  late 
Ensign  Bagley  (file  3679-2);  and  to  detail  the 
Maiine  Band  to  appropriate  duty  anywhere 
(file  4288-6,  Apr.  22,  1907),  including  its  par- 
ticipation in  a  charity  fete  (file  4288-4,  Apr.  18, 
1907). 

The  act  of  June  3,  1916,  section  35  (39  Stat., 
188),  does  not  prohibit  the  detail  or  permitting 
of  enlisted  men,  including  members  of  the  Ma- 
rine Band,  to  engage  in  their  profession  in  civil 
life  without  renumeration,  even  though  this 
may  possibly  interefere  with  the  employment 
of  local  ci\dlians.  (File  4924-435,  June  20, 
1916). 

By  act  of  August  29, 1916  (39  Stat.,  612), 
members  of  the  Marine  Band  are  prohibited 
as  individuals  from  furnishing  music  in  com- 
petition with  civilian  musicians,  and  from  ac- 
cepting renumeration  for  furnishing  music  ex- 
cept under  special  circumstances  when  author- 
ized by  the  President. 

As  to  detail  of  enlisted  men  to  duty  in  an 
executive  department,  see  statutes  noted  under 
section  416,  Revised  Statutes,  "Restrictions 
on  employment  of  clerical  services." 

Sec.  418.  [Department  property,  books,  and  records.]  The  Secretary  of  the 
Navy  shall  have  the  custody  and  charge  of  all  the  books,  records,  and  other 
property  now  remainmg  m  and  appertaming  to  the  Department  of  the  Navy, 
or  hereafter  acquired  by  it. — (30  Apr.,  1798,  c.  35,  s.  3,  v.  1,  p.  554.) 


Miscellaneous. — The  head  of  a  department 
should  see  that  contracts  wliich  belong  to  hia 
office  are  properly  and  faithfully  executed, 
whether  he  made  the  contracts  or  conferred 
authority  on  others  to  do  so;  and  if  he  becomes 
satisfied  that  contracts  wliicn  hf  made  are  being 
fraudulently  executed,  or  that  contracts  made 
by  others  were  made  in  disregard  of  the  rights 
of  the  GoA'ernment,  or  with  intent  to  defraud, 
it  is  his  duty  to  interpose,  arrest  execution 
thereof,  and  adopt  measures  to  protect  the  Gov- 
ernment against  the  dishonesty  of  his  subordi- 
nates.    (U.  S.  V.  Adams,  7  Wall.,  463.) 

Navy  regulations  are  binding  on  the  sub- 
ordinates of  the  Secretary  of  the  Navy,  but  do 
not  bind  the  Secretary  himself.  (See  U.  S.  v. 
Bm-ns,  12  Wall.,  246;  Smith  v.  U.  S.,  24  Ct.  Cls., 
215;  and  9  Comp.  Dec,  280;  noted  under  sec. 
161,  R.  S.,  "IX.  Waiver  of  Regulations.") 

The  presumption  is  that  officers  of  the  Gov- 
erment  perform  their  duty,  and  the  presump- 
tion is  strengthened  in  a  particular  case  by  the 
fact  that  heavy  statutory  penalties  will  be  in- 
cmred  by  neglect.  (Crussell  v.  U.  S.,  7  Ct. 
Cls.,  276,  publishing  decision  of  Supreme 
Court.) 

The  failure  of  an  officer  of  the  United  States 
to  discharge  a  plain  duty  imposed  on  him  by 
law  does  not  charge  the  Government  itself  with 
the  loss  caused  by  the  default.  (In  re  Schmalz, 
4  Ct.  Cls.,  142.) 

All  the  officers  of  the  Government,  from  the 
highest  to  the  lowest,  are  but  agents  with  dele- 
gated powers;  and  if  they  act  beyond  the  scope 
of  those  delegated  powers,  their  acts  do  not 
bind  the  principal.  (U.  S.  v.  Maxwell,  etc., 
Co.,  21  Fed.  Rep.,  19;  see  also  Steele  v.  U.  S., 
113  U.  S.,  128,  holding  Government  not  bound 
by  illegal  action  of  Navy  Department,  noted 
under  sec.  236,  R.  S.,  VIII,  (C),  3.)  _ 

All  instructions  from  the  executive  which 
are  not  supported  by  law  are  illegal,  and  no 
inferior  officer  is  bound  to  obey  them.  (Gil- 
christ V.  Collector,  10  Fed.  Cas.  No.  5420;  see 
cases  on  this  subject  collected  in  note  to  Con- 
stitution, Art.  I,  sec.  8,  clause  13.) 

The  fact  that  one  is  an  officer  of  the  Navy  of 
the  United  States,  and  is  acting  under  orders, 
gives  him  no  justification  for  the  retention_  of 
premises  hehl  by  him  under  that  authority 
against  the  claim  of  the  true  owner.  (San 
Francisco  Sav.  Union  v.  Irwin,  28  Fed.  Rep.,  708. 


Accounts,  property : ' '  Clothing  and  small  stores ' ' 
fund  created  by  act  of  June  30,  1890  (26 
Stat.,  197). 

Accounts:  "Naval  supply  account"  was  cre- 
ated and  the  "naval  supply  fund"  abol- 
ished by  acts  of  June  25, 1910  (36  Stat.,  792), 
and  March  4,  1911  (36  Stat.,  1279) ._ 

Accounts:  Property  returns  to  be  audited  and 
responsibiUty  for  losses  determined  by 
Paymaster  General  of  the  Navy  and  officer 
in  charge  of  the  Quartermaster's  Depart- 
ment of  the  Marine  Corps.  (Act  Mar.  29, 
1894,  28  Stat.,  47.) 


Army  supplies:  Transfer  of,  as  needed,  to  naval 
or  marine  officers  commanding  detachments 
on  shore,  was  required  by  sections  1135  and 
1143,  Revised  Statutes. 

Bids  may  be  rejected  under  certain  circum- 
stances.    (Sees.  3722  and  3724,  R.  S.) 

Coal  produced  by  certain  mines  in  Alaska  re- 
quired to  be  sold  to  United  States  for  use 
of  Navy  at  price  fixed  by  President.  (Act 
May  28,  1908,  sec.  2,  35  Stat.,  424.) 

Coal  on  Government  lands  in  Alaska  may  be 
mined  under  the  direction  of  the  President, 


352 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  418. 


when  necessary  for  the  Navy.     (Act  Oct. 
20,  1914,  38  Stat.,  741.) 
Congressional  Record:  One  bound  copy  to  be 
furnished  to  the  libraiy  of  the  Na\'y  De- 
partment and  to  the  Naval  Observatory. 
(Act  Jan.  12,  1895,  sec.  73,  28  Stat.,  617). 
Contracts  for  supplies  are  to  be  made  by  or 
under  direction  of  Secretary  of  the  Navy^ 
(Sec.  3714,  R.  S.,  as  amended  by  act  Feb. 
27,  1877,  19  Stat.,  249.) 
Contracts  for  provisions  are  to  be  awarded  to  low- 
est responsible  bidder  on  each  item.     (Act 
Mar.  4,  1913,  37  Stat.,  904.) 
Contracts  or  purchases  are  not  to  be  made  unless 
authorized  by  law  or  under  appropriation 
adequate  to  their  fulfillment,  except  in  the 
War  and  Navy  Departments  for  clothing, 
subsistence,   forage,  fuel,   quarters,  trans- 
portation, or  medical  and  hospital  supplies, 
which,  however,  shall  not  exceed  necessi- 
ties of  current  year.     (Sec.  3732,  R.  S.,as 
amended  by  act  June  12, 1906,  34  Stat.,  255) 
Contractors  required  to  furnish  bond  or  certi- 
fied check.     (Sec.  3719,  R.  S.,  as  amended, 
act  May  25, 1896,  29  Stat.,  136,  and  Dec.  11, 
1906,  34  Stat.,  841.)      _ 
Contractors  liable  to  forfeiture,  as  liquidated 
damages,    for    failure    to    perform.     (Sec. 
3720,  R.  S.,  as  amended,  June  22,  1910,  36 
Stat.,  591.) 
Contractors  may  be  ])aid  reservations  on  deliv- 
eries.    (Sec.  3730,  R.  S.) 
Contractors  may  be  paid  partial  payments  dur- 
ing progress  of  work.     (Acts  Aug.  22,  1911, 
37  Stat.,  32;    Oct.  6,  1917,  sec.  5,  40  Stat., 
383.) 
Contractor's  name  required  to  be  marked  on 

supplies.     (Sec.  3731,  R.  S.) 
Copies  of  books,  records,  papers,  or  documents, 
under  seal  of  department,  admissible  in  evi- 
dence in  Federal  courts.     (Sec.  882,  R.  S.) 
Domestic  steel  material  to  be  used  in  construc- 
tion of  naval  vessels.     (Act  Aug.  3,  1886, 
sec.  2,  24  Stat.,  215,  as  amended  by  act  May 
4,  1898,  30  Stat.,  390.) 
Domestic  hemp  to  be  purchased  for  Navy,  sub- 
ject  to    price    and    quality.     (Sec.    3725, 
R.  S.) 
Domestic  articles  to  be  preferred  in  purchases 

for  Navy.     (Sec.  3728,  R.  S.) 
Exchange  of  typewriters,  adding  machines,  and 
other  labor-sa\ing  devices,  authorized  in 
part    pavment   for    new    macliines.     (Act 
Mar.  4,  1915,  sec.  5,  38  Stat.,  1161.) 
Flags  captured  by  Na\'y  to  be  collected  by 
Secretary  of  Navj'  and  delivered  to  the 
President.     (Sees.  428,  1554,  1555,  R_.  S.) 
Foreign  materials  for  construction  or  repair  and 
equipment  of  naval  vessels  mav  be  im- 
ported without  dutv.     (Act  Oct'  3,  1913, 
sec.  IV,  J,  subsecs.  o,  6,  38  Stat.,  196.) 
Foreign  war  material   may  be  purchased  in 
emergencies  and  imported  free  of  duty. 
(Act  Mar.  4,  1913,  37  Stat.,  896.     See  also 
act  June  30,  1914,  38  Stat.,  399.1 
Foreign  supplies  not  to  be  purchased  in  excess 
of  prevailing  market  prices.     (Sec.  3723, 
R.  S.) 
Gifts  of  flags  used  for  draping  coffins  may  be 
made  by  Secretary  of  the  Navy  to  relatives 
of  deceased,  or  to  schools,  patriotic  orders, 


or  societies.     (Act  June  30,  1914,  38  Stat. 
406.) 

Gifts  to  vessels  of  silver,  colors,  books,  and 
articles  of  equipment  or  furniture,  to  be 
accepted  and  cared  for  by  Secretary  of 
the  Navy.  (Act  May  20,  1908,  35  Stat., 
171.) 

Government  publications  (one  copy)  are  to  be 
furnished  by  the  Superintendent  of  Docu- 
ments to  the  libraries  of  the  Executive  De- 
partments, and  of  the  United  States  Mili- 
tary and  Naval  Academies,  which  libraries 
are  constituted  designated  depositories  of 
such  publications.  (Act  Jan.  12,  1895,  sec. 
98,  28  Stat.,  624.) 

Inventory  of  property  pertaining  to  Navy  is 
required  to  be  kept  by  the  Secretary  of  the 
Navy.  (Sec.  197,  R.  S.;  amended  by  act 
Feb.  27,  1877,  sec.  1,  19  Stat.,  241.) 

Inventory  to  be  kept  of  all  supplies  pertaining 
to  Naval  Establishment,  and  annual  report 
thereof  made  to  Congress,  by  Bureau  of 
Supplies  and  Accounts.  (Act  Mar.  2, 1889, 
25  Stat.,  817.) 

Life-saving  dress  authorized  as  part  of  naval 
equipment.  (Act  Mar.  3,  1883,  22  Stat., 
475.) 

Loan  of  naval  vessels  to  nautical  schools,  author- 
ized by  act  of  March  4, 1911  (36  Stat.,  1353). 

Loan  or  permanent  transfer  of  naval  vessels 
to  U.  S.  Shipping  Board,  authorized  by 
act  of  September  7,  1916,  section  6  (39 
Stat.,  730). 

Loan  of  naval  equipment  to  military  schools, 
authorized  by  act  of  March  3, 1901  (31  Stat., 
1440),  as  amended  by  act  of  June  29,  1906 
(34  Stat.,  620),  and  June  24,  1910  (36  Stat., 
613). 

Loan  or  gift  of  condemned  ordnance,  gims,  and 
cannon  balls  by  the  Secretarjr  of  the  Navy 
to  soldiers'  monument  associations,  posts 
of  Grand  Army  of  the  Republic,  and 
municipal  corporations,  authorized  by  act 
of  May  22,  1896  (29  Stat.,  133). 

Loan  of  scientific  instruments  by  Secretary  of 
the  Navy  to  the  Weather  Bureau  was 
authorized  by  act  of  October  19,  1888,  sec- 
tion 3  (25  Stat.,  600),  as  amended  by  act  of 
October  1,  1890  (26  Stat.,  653). 

Loan  of  articles  to  Red  Cross  was  authorized  by 
joint  resolution  of  May  8,  1914  (38  Stat., 
771),  as  amended  by  joint  resolution  of 
May  18,  1916  (39  Stat.,  164). 

Official  Register  of  the  United  States — 20  copies 
of  each  edition  to  be  furnished  to  the  Na\'y 
Department  under  Public  Printing  ana 
Binding  Act,  January  12,  1895,  section  73 
(28  Stat.,  618). 

Punishment  for  injuring  or  destroying  naval 
supplies  and  property  is  provided  by 
Criminal  Code,  act  of  March  4,  1909,  sec- 
tion 286  (35  Stat.,  1144);  and  section  1624, 
Revised  Statutes,  article  4. 

Punishment  for  injuring  naval  vessel  or  equip- 
ment is  provided  by  section  1624,  Revised 
Statutes,  article  4. 

Punishment  for  failure  to  prevent  destruction 
of  public  property  is  provided  by  section 
1624,  Revised  Statutes,  article  8. 

Punishment  for  wasting  ammunition,  provi- 
sions, or  other  public  property,  or  permit- 


353 


Sec.  418. 


Pt.  2.  REVISED  STATUTES. 


Navy  Department. 


ting  such  waste,  is  provided  by  section 
1624,  Ileviaed  Statutes,  article  8. 

Punishment  for  unlawfully  purchasing  naval 
property  from  person  not  having  lawful 
right  to  sell  same  is  provided  by  section 
1624,  Revised  Statutes,  article  H;  and 
Criminal  Code,  act  of  March  4,  1909,  sec- 
tion 35  (35  Stat.,  1095). 

Punishment  for  stealing,  embezzling,  or  unlaw- 
fully selling  ordnance,  arms,  equipment, 
ammunition,  clothing,  subsistence  stores, 
or  other  naval  property  is  provided  by 
section  1624  Revised  Statutes,  article  14; 
and  Criminal  Code,  act  of  March  4,  1909, 
sections  36  and  47  (35  Stat.,  1096,  1097). 

Punishment  for  unlawfully  concealing,  remov- 
ing, mutilating,  obliterating,  falsifying,  or 
destroying  any  public  record,  book,  paper, 
etc. ,  is  provided  by  Criminal  Code,  sections 
128  and  129  (35  Stat.,  1111,  1112). 

Punishment  for  forging  or  altering  public 
records  for  purpose  of  defrauding  United 
States  is  provided  by  section  28,  Criminal 
Code,  act  of  March  4,  1909  (35  Stat.,  1094); 
and  section  1624,  Re\rised  Statutes,  article 
14.  (See  also  act  Mar.  4,  1911,  36  Stat., 
1355.) 

Purchase  of  supplies  is  deemed  to  be  for  the 
Navy,  and  not  for  any  bureau  thereof,  and 
they  shall  be  classified  and  issued  accord- 
ingly. (Act  Mar.  2,  1891,  26  Stat.,  807; 
act  June  30,  1890,  26  Stat.,  205.) 

Purchase  of  structural  steel,  ship  plates,  armor, 
armament,  or  machinery  from  unlawful 
comb'mations  or  monopolies,  or  at  price  in 
excess  of  a  reasonable  profit,  is  prohibited 
by  a  claiise  in  the  annual  naval  appropria- 
tion act  imder  "Increase  of  the  Nav-y." 
(See  act  Mar.  4,  1917,  39  Stat.,  1195.) 

Purchase  of  naval  supplies,  when  time  will 
permit,  is  to  be  made  by  contract  after 
advertisement  and  from  lowest  bidder. 
(Sec.  3718,  R.  S.,  as  amended  by  act  June 
30,  1890,  26  Stat.,  189;  act  July  19,  1892, 
27  Stat.,  243;andactMar.  3, 1893,27Stat., 
715.) 

Purchase  of  material  for  steam  boilers  is  author- 
ized without  advertisement.  (Res.,  June 
14,  1878,  20  Stat.,  253.) 

Purchase  of  gun  steel  or  armor  for  the  Navy, 
without  public  competition,  is  prohibited 
by  act  of  March  3,  1893  (27  Stat.,  732). 

Purchase  of  shells  or  projectiles,  except  for  ex- 
perimental purposes,  is  not  to  be  made 
without  bids.  (Act  Mar.  4,  1913,  37  Stat., 
896;  act  June  30,  1914,  38  Stat.,  398.)  _ 

Purchase  of  ordnance,  gunpowder,  medicines, 
bunting,  butter  and  cheese,  contraband  of 
war,  and  supplies  abroad  for  vessels  on  for- 
eign stations  may  be  made  without  adver- 
tisement.    (Sec.  3721,  R.  S.) 

Purchase  of  tobacco  for  the  Na^•y  is  to  be  made 
after  advertisement  in  the  same  manner  as 
other  supplies.  (Act  Jime  10,  1896,  29 
Stat.,  370.) 

Purchase  of  supplies  in  open  market  for  all 
branches  of  the  naval  ser\ice  without  for- 
mal contract  or  bond  is  authoiized  where 
amount  does  not  exceed  $500.  (Act  Mar. 
2.  1907,  34  Stat.,  1193.) 

Piuchase  of  material,  supplies,  and  equipment, 
so  far  as  possible,  shall  be  made  from  other 


services  of  the  Government,  possessing  ma- 
terial, supplies,  and  equipment  no  longer 
required  because  of  cessation  of  war  activi- 
ties. (Act  Mar.  1,  1919,  sec.  8,  Pub.  No. 
314;  see  also  act  Feb.  25,  1919,  Pub.  No. 
275,  and  Executive  Order  of  Dec.  3, 
1918.) 

Purchase  of  preserved  meats,  pickles,  butter, 
desiccated  vegetables,  and  flour  is  to  be 
made  in  such  manner  as  Secretaiy  of  the 
Navy  mav  deem  best.  (Sees.  3726  and 
3727",  R.  S")  ^ 

Piu-chase  of  bunting  mav  be  made  in  open  mar- 
ket.    (Sec.  3729,  R^  S.) 

Purchases  not  to  be  made  of  vessels,  aiTnament, 
articles,  or  materials  wliich  the  na-\y  yards, 
gim  factories,  or  other  industrial  plants  of 
the  Navy  ai'e  equipped  to  supply,  except  in 
cases  of  emergency,  etc.  (See  annual  naval 
appropriation  acts,  e.  g.,  act  of  Mar.  3, 1915, 
38  Stat.,  952.) 

Record  is  to  be  kept  of  proceedings  of  naval 
examining  boards.     (Sec.  1501,  R.  S.) 

Record  of  officer  in  Ixis  existing  grade  shall  be 
considered  by  naval  examining  board  and 
the  President  in  determining  his  fitness  for 
promotion.  (Sec.  1502,  R.  S.,  as  amended 
by  act  June  18,  1878,  sec.  1,  20  Stat.,  165.) 

Records  of  all  courts-martial,  courts  of  inquirj', 
and  boards  for  the  examination  of  officers 
for  retirement  and  promotion  are  to  be  re- 
ceived and  recorded  by  the  Judge  Advo- 
cate General  under  the  direction  of  the 
Secretary  of  the  Navy.  (Act  June  8,  1880, 
21  Stat., "164;  amended  by  act  June  5, 1896, 
29  Stat.,  251.) 

Records  are  to  be  kept  of  all  proposals  for  naval 
supplies.  (Sec.  3720,  R.  S.,  as  amended  by 
act  June  22,  1910,  36  Stat.,  591.) 

Records  are  to  be  kept  in  Na\y  Department  of 
commissions  of  all  officers  under  the  direc- 
tion and  control  of  the  Secretary  of  the 
Navy.     (Act  Mar.  28,  1896,  29  Stat.,  75.) 

Records  of  character  and  treatment  of  diseases 
are  to  be  transmitted  to  '^a.xy  Department 
by  surgeon  of  the  fleet.     (Sec.  1374,  R.  S.) 

Records  of  naval  contracts  are  to  be  kept  in  Re- 
turns Office,  Interior  Department.  (Sees. 
512-515,  3744-3747,  R.  S.) 

Records  of  Revolutionary  War  pertaining  to  the 
Navy,  in  the  possession  of  any  official  of  the 
United  States,  are  required  to  be  transfened 
to  the  Navy  Department.  (Act  Mar.  2, 1913, 
37  Stat.,  723;  act  June  29,  1906,  34  Stat., 
579.) 

Records  pertaining  to  the  Navy,  from  beginning 
of  the  Navy  Department  to  the  Civil  War, 
in  the  possession  of  any  of  the  executive 
departments,  are  requii-ed  to  be  transferred 
to  the  Secretary  of  the  Navy.  (Act  Apr. 
27,  1904,  33  Stat.,  403.) 

Records  and  books  of  bureaus  in  the  Navy  De- 
partment are  to  be  retained  in  custody  of 
the  bureaus.    (Sec.  420,  R.  S.) 

Records  of  courts  of  inquiry  are  admissible  in 
evidence  before  courts-martial.  (Sec.  1624, 
R.  S.,  art.  60.) 

Records  of  naval  retiring  boards  are  to  be  laid 
before  the  President  by  Secretary  of  the 
Navy.     (Sec.  1452,  R.  S.) 

Records  of  Revolutionary  War  are  to  be  classified 
by  Secretary  of  the  Navy  with  view  to  pub- 


354 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  418. 


lication.     (Act  Mar.  2,  1913,  37  Stat.,  723; 
act  June  29,  1906,  34  Stat.,  579.) 

Records  of  Civil  War  are  to  be  published  by  the 
Secretary  of  the  Navy.  (Act  July  31,  1894, 
28  Stat.,  190;  see  also  legislative,  executive, 
and  judicial  appropriation  acts  for  subse- 
quent years.) 

Regulations  for  the  purchase,  preservation,  and 
disposition  of  naval  supplies  are  to  be  made 
by  the  President.     (Sec.  1549,  R.  S.) 

Regulations  for  the  custody,  use,  and  preserva- 
tion of  the  records,  papers,  and  property  ap- 
pertaining to  any  executive  department,  are 
to  be  made  by  the  head  of  such  department. 
(Sec.  161,  R.  S.) 

Regulations  and  general  orders  shall  be  f  m'nished 
each  commissioned  and  warrant  ofBcer  of 
the  Navy.     (Sec.  1548,  R.  S.)  _ 

Repairs  to  naval  vessels  are  restricted  by  sec- 
tions 1538  and  1539,  Revised  Statutes,  and 
laws  noted  thereunder. 

Sale  of  naval  stores  to  persons  in  the  Navy  and 
Marine  Corps  and  civilian  employees  at 
certain  naval  stations  is  authorized  by  act 
of  March  3, 1909  (35  Stat.,  768);  act  of  June 
24,  1910  (36  Stat.,  619);  and  act  of  March  4, 
1913  (37  Stat.,  909). 

Sale  of  Navy  and  Marine  Corps  susbsistence 
supplies  to  officers  and  enlisted  men  of  the 
Army  is  authorized  by  annual  appropriation 
acts.  (See  act  Mar.  4, 1915,  38  Stat. ,  1072. 
See  also  sec.  1135,  R.  S.,  and  note  thereto.) 

Sale  of  vessels  unfit  to  be  repaired  is  authorized 
by  sections  1540  and  1541,  Revised  Statutes, 
and  subsequent  laws  noted  thereunder. 

Sale  of  unserviceable  materials  and  condemned 
naval  supplies  and  stores  is  authorized  by 
section  1541,  Revised  Statutes,  and  subse- 
quent laws  noted  thereunder.  [The  chief 
of  the  Bureau  of  Ordnance  was  authorized 
to  sell  certain  small  arms  on  hand  and  use 
proceeds  for  piu-chase  of  new  arms  and 
ammunition  by  act  of  June  20,  1878  (20 
Stat.,  242).  See  also  act  of  March  3,  1875 
(18  Stat.,  388).] 

Sale  of  useless  papers  in  the  Navy  Department, 
on  naval  vessels,  and  at  navy  yards,  is  au- 
thorized by  acts  of  February  16,  1889  (25 
Stat.,672);March2,1895(28Stat.,  933);  Feb- 
ruary 16, 1909,  section  14  (35  Stat.,  622);  Au- 
gust 22,  1912  (37  Stat.,  329);  and  March  3, 
1915  (38  Stat.,  929). 

Sale  of  individual  pieces  of  United  States  ar- 
mament, when  sentimental  reasons  exist 
for  such  sale,  is  authorized  l)y  act  of  March 
2,  1905  (33  Stat.,  841). 

Sale  or  gift  of  lubricating  oil  and  gasoline  to 
vessels  of  Volunteer  Patrol  Squadron. 
(See  act  of  Aug.  29,  1916,  39  Stat.,  600.) 

Sales  of  vessels  and  materials  are  to  be  reported 
to  Congress  (sees.  429,  1541,  R.  S. ;  sec.  3672, 
R.  S.,  as  amended  by  act  Feb.  27,  1877, 
sec.  1, 19  Stat.,  249;  act  Aug.  5, 1882,  sec.  2, 
22  Stat.,  296)._ 

Sales  of  old  material,  etc.:  Proceeds  in  certain 
cases  are  to  be  covered  into  the  Treasury 
as  "Miscellaneous  receipts."  (Sec.  3618, 
R.S.)_ 

Scientific  investigators  and  students  shall  be 
afforded  the  facilities  for  study  and  research 
in  the  Government  departments  under 
such  restrictions  as  heads  of  departments 


may  prescribe.  (Act  Mar.  3, 1901,  31  Stat., 
1039.) 

Statutes  at  Large — 100  pamphlet  copies  are  re- 
quired to  be  furnished  to  the  Navy  Depart- 
ment by  Secretary  of  State  at  close  of  each 
session  of  Congress.  (Public  Printing  and 
Binding  Act,  Jan.  12,  1895,  sec.  73,  28  Stat., 
614.) 

Statutes  at  Large — 75  bound  copies  are  required 
to  be  furnished  l)y  Secretary  of  State  to  Navy 
Department  at  close  of  each  Congress. 
(Public  Printing  and  Binding  Act,  Jan.  12, 
1895,  sec.  73,  28  Stat.,  615.) 

Supreme  Court  reports  are  to  be  furnished  to  the 
Secretary  of  the  Navy,  the  Assistant  Sec- 
retary of  the  Navy,  the  Judge  Advocate 
General  of  the  Navy,  and  the  Naval  Acad- 
emy, for  official  use.  (Judicial  Code,  act 
Mar.  3,  1911,  sec.  227,  36  Stat.,  1154.) 

Tim  ber  lands  are  reserved  for  naval  purposes ,  and 
removal  or  destruction  of  timber  thereon  is 
made  punishable  by  sections  2458-2463, 
Revised  Statutes. 

Transfer  of  aeroplanes  and  equipment  to  Post 
Office  Department  was  authorized  by  Act 
of  February  28,  1919  (40  Stat.,  1194). 

Transfer  of  supplies  from  one  bureau  of  the  War 
or  Navy  Departments  to  another  bureau  of 
such  departments.  See  act  of  March  4, 191 5 
(38  Stat.  1084),  and  21  Comp.  Dec,  819. 
See  also  section  1135,  Revised  Statutes, 
and  note  thereto. 

Transfer  of  supplies  between  Bureaus  of  the 
Navy  Department  was  authorized  by  act 
ofMarch2, 1889  (25  Stat.,  818). 

Transfer  of  naval  vessels  to  the  Department  of 
Commerce  was  authorized  by  Act  of  June 
5,  1920  (41  Stat.,  1058) ;  and  to  the  Shipping 
Board  by  Act  of  September  7,  1916,  sec.  6 
(39  Stat".,  730;  compare  Act  June  5,  1920, 
41  Stat.,  990;  see  also  Act  May  12,  1917, 
40  Stat.,  75). 

Transportation  of  naval  supplies  by  Army  trans- 
port service,  is  authorized  by  act  of  March  2, 
1907  (34  Stat.,  1170). 

Transportation  of  naval  supplies  shall  be  in  ves- 
sels of  United  States,  unless  freight  charges 
are  unreasonable  and  excessive.  (Act  Apr. 
28,  1904,  33  Stat.,  518.) 

Vehicles,  passenger-carrying,  are  not  to  be 
purchased,  operated,  or  repaired  from  any 
appropriation  without  specific  authority 
of  Congress.  (Act  July  16,  1914,  sec.  5. 
38  Stat.,  508). 

Vessels,  foreign  built  and  registered  as  vessels 
of  United  States,  may  be  taken  and  used 
as  cniisers  or  transports.  (Act  May  10, 
1892,  sec.  4,  27  Stat.,  28.)  _ 

Vessels  used  in  ocean  mail  service  may  be  taken 
and  used  as  transports  or  cruisers.  (Act 
Mar.  3,  1891,  sec.  9,  26  Stat.,  832.) 


Transfer  of  property. — ^\Tiere  articles  of 
equipment,  purchased  for  use  of  a  particular 
bm'eau  of  a  department  have  served  the  pur- 
pose for  which  purchased,  they  maybe  trans- 
ferred for  use  of  another  bm-eau  of  said  depart- 
ment without  any  adjustment  of  appropria- 
tions.    (21  Comp.  Dec,  788.) 

Under  the  provisions  of  the  act  of  March  4, 
1915  (38  Stat.  1084),  when  one  bureau  of  the  War 


355 


Sec.  418. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


or  Navy  Departments  procures  supplies  or 
perforins  any  soivice  for  another  buieau 
of  such  departments  the  head  of  the  de- 
partment lor  which  the  supplies  are  to  be 
f)rocured  or  the  scr%ice  performed  may  cause  its 
unds  to  be  transferred  on  the  books  of  the 
Treasury'  Department  to  the  prociu-ino;  depart- 
ment for  direct  expenditure  by  it.  The  funds 
80  transferred  are  to  be  expended  and  accounted 
for  under  the  rules  and  regulations  of  the 
department  to  which  they  are  advanced  (21 
Comp.  Dec,  819;  see  also  17  Op.  Atty. 
Gen.,  480). 

Authority  of  Congress  is  necessary  for  trans- 
fer of  naval  vessel  to  the  Revenue-Cutter  Serv- 
ice.    (File  3160-54,  May  4,  1907.) 

Tliere  is  no  authority  for  the  Navy  Depart- 
ment to  transfer  to  another  department  al)so- 
lutely,  or  temporarily  (under  certain  circum- 
stances), property  piu"chased  from  its  appro- 
priations. Accordingly,  declined  to  loan  model 
of  the  U.  S.  S.  Bancroft  to  the  Revenue-Cutter 
Service,  to  which  the  vessel  itself  had  been 
transferred  pursuant  to  act  of  June  30,  1906 
(34  Stat.,  702).  (File  3160-36,  Nov.  15,  1906. 
See  also  17  Op.  Atty.  Gen.,  480;  20  Op.  Atty. 
Gren.,  93, 96;  23  Comp.  Dec,  175.  Compare  file 
80^3,  Sept.  28, 1906,  holding  that  the  loan  of  a 
gun  to  the  State  of  Virginia  might  be  made 
under  the  general  powers  of  the  Secretary  of 
the  Navy,  there  being  no  express  statutory 
authority  covering  the  case.) 

The  Secretary  of  the  Navy  can  not  exchange 
a  vessel  belonging  to  the  Navy,  which  has  been 
condemned  as  unfit  for  naval  purposes,  for 
another  vessel,  notwithstanding  the  exchange 
might  be  of  advantage  to  the  public  service. 
The  disposition  of  such  vessel  is  controlled  by 
the  law  providing  for  the  sale  of  vessels  and 
materials  which  can  not  be  advantageously 
used.    (14  Op.  Atty.  Gen.,  369.) 

For  other  cases,  see  notes  to  sections  161  and 
355,  Revised  Statutes;  and  see  various  laws  au- 
thorizing loan  or  transfer  of  Gov-ernment  prop- 
erty— for  example,  joint  resolutions  of  Febru- 
ary 3,  1913  (37  Stat.,  1024),  and  February  9, 
1917  (39  Stat.,  902),  authorizing  Secretary  of 
Navy  to  loan  flags  to  inaugural  committee, 
subject  to  certain  restrictions — and  see  laws 
noted  above  and  section  427,  Revised  Statutes. 

Records  of  department. — The  Navy  De- 
partment is  unable  to  comply  with  the  request 
of  attorneys  that  original  correspondence  be 
furnished  them  from  the  files  of  the  department, 
notwithstanding  their  offer  to  give  any  reason- 
able security  for  its  custody  and  retm-n.  The 
law  requires  that  the  records  shall  be  kept  safely 
in  the_  department,  and  the  Secretary  of  the 
Navy  is  made  personally  the  custodian.  (Let- 
ter of  Hon.  R.  W.  Thompst^n,  Secretary  of  the 
Navy,  May  12,  1879,  published  in  Maurice  v. 
Worden,  54  Md.,  237;  see  also  file  12475-64, 
Aug.  9,  1915.) 

it  has  been  the  iuA^ariable  practice  of  the 
Navy  Department  to  decUne  to  furnish  in  the 
case  of  legal  controversies,  at  the  request  of  the 
parties  litigant,  copies  of  papers  or  other  infor- 
mation to  be  used  in  the  course  of  the  proceed- 
ings. (G.  O.  No.  121,  Navy  Dept.,  Sept.  17, 
1914;  see  also  file  1959-99,  and  12475-53:1, 
Jan.  30,  1915.) 


The  Na\y  Department  does  not  grant  per- 
mission to  attorn ey.s  to  make  preliminary  and 
informal  examination  of  the  records,  but  will 
promptly  furidsh  copies  of  papers  or  records 
upon  call  of  a  civil  court  before  which  proceed- 
ings are  pending.  (G.  O.  No.  121,  Navy  Dept., 
Sept.  17,  1914;  see  also  file  5467-8,  Mar.  27, 
1907.) 

"No  information  shall  be  furnished  from  the 
records  of  the  NaAy  Department  to  attorneys 
or  agents  concerning  the  naval  service  of 
officers  or  enlisted  men  of  the  Navy  until  such 
attorneys  or  agents  shall  file  a  power  of  attorney 
in  the  department,  sho^\■ing  that  they  have 
authority  from  the  person  whose  record  is 
desired,  or  his  legal  representatives,  to  request 
such  information,  and!^  shall  also  file  a  state- 
ment of  the  purpose  for  which  such  information 
is  desired.  If  such  statement  be  deemed  satis- 
factory to  the  department,  the  information  will 
be  furnished,  provided  the  attorney  or  agent 
submits  to  the  department  the  same  proof  of 
the  identity  of  the  person  or  persons  he  repre- 
sents, as  is  reqidred  when  the  application  for 
such  information  is  made  by  the  person  or 
persons  themselves."  (Art.  26,  Naval  Instruc- 
tions, 1913.) 

It  would  be  establishing  a  dangerous  prece- 
dent for  the  Secretary  of  the  NaAy  to  fmnish 
information  fiom  the  official  records  for  the  use 
of  an  attorney  in  preparing  a  case  against  the 
United  States  in  the  Court  of  Claims,  even 
though  such  attorney  file  a  power  of  attorney 
from  the  legal  representative  of  the  person 
whose  record  is  desired.  The  furnishing  of 
such  Information  "might  be  construed  in  viola- 
tion of  section  5498  Revised  Statutes."  The 
information  sought  might  be  furnished  very 
properly  upon  the  call  of  the  Court  of  Claims. 
(Attorney-General  to  Secretary  of  the  Navy, 
Jan.  18.  1915,  file  12475-53:  1;  see  also  sec. 
164,  Judicial  Code,  act  Mar.  3,  1911,  36  Stat.,* 
1141,  and  sec.  188,  R.  S.)  [Section  5498,  Re- 
vised Statutes,  above-mentioned,  was  repealed 
by  section  341,  Criminal  Code,  act  of  March  4, 
1909  (35  Stat.,  1153),  and  similar  provi'-ions 
were  embodied  in  section  109  of  said  Criminal 
Code  (35  Stat.,  1107).] 

There  is  a  class  of  communications  which  the 
courts  will  not  reqiure  to  be  produced  in  evi- 
dence where  those  having  the  custody  of  them 
object  to  their  publicity  on  the  ground  of  pub- 
lic policy.  Such  are  ofiicial  communications 
to  the  heads  of  Government,  and  between  its 
different  departments.  "And  where  the  law  is 
restrained  by  public  policy  from  enforcing  the 
production  of  papers,the  like  necessity  restrains 
it  from  doing  what  would  be  the  same  in  effect, 
namely,  receiving  secondary  evidence  of  their 
contents."  (Maurice  v.  Worden,  54  Md.,  254; 
citing  1  Green.  Ev.,  sec.  251.) 

HowoA-er,  where  the  Secretary  of  the  Navy 
furnished  copies  of  correspondence  from  the 
files  of  the  department,  for  use  by  attorneys  in 
the  pjrosecution  of  a  libel  suit  against  the 
superintendent  of  the  Naval  Academy,  it  was 
held  that  such  copies  under  the  department's 
seal  might  be  used  in  eAidence,  as  the  Secre- 
tary of  the  Na-\y,  by  furnishing  such  copies, 
showed  that  he  did  not  object  to  their  pub- 
licity.    (Maurice  v.  Worden,  54  Md.,  254.) 


356 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  419. 


Communications  in  writing  passing  between 
officers  of  the  Government,  in  the  course  of 
official  duty,  relating  to  the  business  of  their 
offices,  are  privileged  from  disclosure  on  the 
ground  of  public  policy,  and  their  production 
will  not  be  compelled  by  courts  of  law  or  equity. 
Neither  will  secondary  evidence  of  their  con- 
tents be  admis  able,  whether  in  the  form  of 
copies  or  of  oral  statements  of  witnesses  who 
have  read  and  recollected  the  same.  An 
official  letter  from  the  head  of  an  olfice  to  the 
head  of  the  department,  recommending  a 
person  for  appointment  as  clerk  in  the  former's 
office  in  place  of  one  whose  removal  is  recom- 
mended for  inefficiency  and  bad  conduct,  is  a 
privileged  communication  within  the  rule, 
and  can  not  be  admittted  in  evidence  to  sus- 
tain an  action  for  libel  brought  against  the 
head  of  the  office  by  the  person  whose  removal 
is  recommended.  (Gardner  v.  Anderson,  9- 
Fed.  Gas.  No.  5220.  In  this  case,  the  head  of 
the  department  declined  to  appear  before  a 
commission  to  take  his  testimony,  or  to  produce 
any  paper  or  copy,  and  sent  the  commissioner 
a  letter  to  that  effect.  The  appointment  clerk 
who  attended  and  was  examined,  by  direction 
of  the  Secretary  declined  to  produce  any  paper 
or  to  speak  of  the  contents  of  any.  _  The  Secre- 
tary later  declined  to  attend  the  trial  in  obedi- 
ence to  a  subpoena,  and  directed  the  United 
States  attorney  to  state  his  reasons  to  the  court. 
The  court  refused  to  proceed  against  the  Secre- 


tary for  contempt,  as  moved  by  plaintiff.  The 
court  advised  plaintiff  to  apply  to  the  Secretary 
for  a  copy  of  the  letter.  The  Secretary  replied 
that,  at  the  date  of  alleged  letter,  the  defendant 
was  appraiser  of  merchandise,  and  any  com- 
munications from  him  to  the  department  were 
official  in  their  nature,  confidential,  and  pro- 
tected from  disclosiu-e;  and  he,  the  Secretary, 
was  not  at  liberty  to  furnish  a  copy  of  the  same 
to  enable  the  plaintiff  to  maintain  an  action 
against  a  late  appraiser  whose  defense  the 
Government  had  assumed.  The  plaintiff  then 
called  a  clerk  in  the  appraiser's  office,  who  had 
charge  of  the  official  letter  copying  book.  The 
court,  however,  excluded  such  secondary  evi- 
dence, its  decision  being  as  stated  above.) 

Removal  of  papers  from  existing  records  of 
officers  is  not  approved.  (File  4435-5,  May  13, 
1908.) 

The  official  records  of  the  Navy  Department 
should  remain  inviolate,  and  should  not  be 
changed  a  hundred  years  after  the  events  they 
purport  to  record.  Where  it  is  alleged  that 
the  record  of  an  officer  is  in  error,  the  evidence 
in  support  of  such  claim  may  be  filed  with  his 
record,  thus  showing  just  what  is  claimed  and 
just  what  authority  there  is  for  each  claim. 
(File  24413-5,  July  12,  1913.  See  also  note  to 
Constitution,  Art.  I,  sec.  7,  clause  2.) 

For  other  cases,  see  notes  to  sections  161, 
188,  and  871,  Revised  Statutes. 


Sec.  419.  [Establishment  of  Bureaus  and  Distribution  of  Business.]  The  busi- 
ness of  the  Department  of  the  Navy  shall  be  distributed  in  such  manner  as  the 
Secretary  of  the  Navy  shall  judge  to  be  expedient  and  proper  among  the  follow- 
ing Bureaus: 

First.  A  Bureau  of  Yards  and  Docks. 

Second.  A  Bureau  of  Equipment  and  Recruiting, 

Third.  A  Bureau  of  Navigation. 

Foiu-th.  A  Bureau  of  Ordnance. 

Fifth.  A  Bureau  of  Construction  and  Repair. 

Sixth.  A  Bm'eau  of  Steam  Engineering. 

Seventh.  A  Bureau  of  Provisions  and  Clothing. 

Eighth.  A  Bureau  of  Medicine  and  Surgery. — (31  Aug.,  1842,  c.  286,  s.  2, 
V.  5,  p.  579;  5  July,  1862,  c.  134,  s.  1,  v.  12,  pp.  510,  511.) 


Advisory  committee  for  aeronautics  was  estab- 
Ushed,  and  its  duties  prescribed,  by  act  of 
March  3,  1915  (38  Stat.,  930). 

Aircraft  Board  was  established  by  act  of 
_  October  1,  1917  (40  Stat.,  296). 

Assistant  Secretary  of  the  Navv  is  authorized 
by  act  of  July  11, 1890  (26  Stat. ,  254) , and  is  to 
* '  perform  such  duties  as  may  be  prescribed 
by  the  Secretary  of  the  Navy  or  required 
by  law. "     (Act  Mar.  3, 1891,  26  Stat.,  934.) 

Boards,  commissions,  coimcils,  etc.,  are  not 
authorized  to  perform  any  work  at  the  ex- 
pense of  appropriations  made  by  Congr-ess, 
unless  the  creation  thereof  has  been  author- 
ized by  law;  no  personal  services  from  any 
executive  department  shall  be  employed  by 
such  boards,  etc.,  nor  expenses  of  members 
paid.  (Act  Mar.  4,  1909,  sec.  9,  35  Stat., 
1027.) 


Boards:  The  General  Board  was  created  by 
Navy  Department  General  Order  No.  544 
of  March  13,  1900.  Its  composition  and 
duties  were  prescribed  by  Navy  Regula- 
tions, 1913,  Arts.  R-104,_  166,  167.  It  re- 
ceived statutory  recognition  in  the  act  of 
August  29,  1916  (39  Stat.,  563  and  39  Stat., 
581).  As  to  precedence  of  members  of  Gen- 
eral Board,  see  note  to  section  421,  Revised 
Statutes,  under  "IV.  Rank,  Titles,  and 
Precedence." 

Biu-eau  of  Construction  and  Repair  is  to  desig- 
nate members  of  board  to  report  cost,  etc., 
of  repairs  to  vessels  (sec.  1538,  R.  S.),  and 
to  conduct  work  of  investigating  and  deter- 
mining the  most  suitable  and  desirable 
shapes  and  forms  to  be  adopted  for  naval 
vessels,  by  means  of  model  tank  at  navy 
yard,  Washington,  D.  C.     (Act  June  10, 


357 


Sec.  419. 


J't.  2.  REVISED  STATUTES. 


Navy  Department. 


1896, 29  Stat. ,  372 . )  The  Chief  Conetructor 
to  be  member  of  Aircraft  Board.  (Act 
Oct.  1,  1917,  40  Stat.,  297.) 

Bm"eau  of  Eqiiipmont  and  Recruiting;  was  des- 
ignated as  Bureau  of  Equipment  in  annual 
appropriation  acts  commencing  vAih  the 
fiscal  year  1892 ;  pro^^siou  was  rnade  for  dis- 
tribution of  the  duties,  funds,  and  em- 
ployees of  the  Bureau  of  Equipment  among 
the  other  bm^eaus  and  offices  of  the  Navy 
Department  )iy  naval  appropriation  acts 
for  the  fiscal  years  19J 1-1914;  and  the  Bu- 
reau of  Equipment  was  abolished  by  act  of 
June  30,  1914  (38  Stat.,  408). 

Bureau  of  Medicine  and  Siu-gery  is  to  recommend 
Medical  Corps  officers  for  appointment  to 
the  regular  Medical  Corps  (act  Aug.  22, 
1912,  37  Stat.,  344),  and  to  detail  expert  as 
member  of  advisory  board  of  hygiene 
laboratory  (act  July  1, 1902,  sec.  5, 32  Stat., 
713).  Surgeon-General  of  the  Navy  is  to 
be  member  of  board  to  hear  appeals  from 
decision  of  Commissioner  of  Internal 
Revenue  as  to  deleterious  ingredients  of 
imitation  butter  (act  Aug.  2,  1886,  sec. 
14,  24  Stat. ,  212)  and  of  filled  cheese  (act 
June  6,  1896,  sec.  15,  29  Stat.,  256). 

Bureau  of  Pro\dsions  and  Clothing  was  desig- 
nated as  Bureau  of  Supplies  and  Accounts 
byactof  July  19,  1892  (27  Stat.,  243,  245);  it 
was  required  to  keep  property  accounts  of 
all  supplies  pertaining  to  the  nava!  estab- 
lishment anci  to  make  annual  report  thereof 
to  Congress,  by  act  of  March  2, 1889  (25  Stat. , 
817) ;  to  audit  property  returns  from  officers 
of  the  Navy  and  determine  responsibility 
for  losses,  by  act  of  March  29, 1894  (28  Stat., 
47);  to  make  annual  report  of  receipts  and 
expenditures  to  the  Secretary  of  the  Navy, 
byactof  May  13, 1908(35  Stat.,  153);  to  cause 
payment  of  death  gratuity  to  be  made  in 
cases  of  officers  and  enlisted  men  of  the  Navy 
and  Marine  Corps  by  act  of  June  4,  1920 
(41  Stat.,  824);  to  receive  quai'terly  re- 
turns of  property  from  storekeeper  at  the 
Naval  Academy,  by  act  of  May  13, 1908  (35 
Stat.,  153);  to  receive  report  of  inspection 
and  recommendation  from  general  inspec- 
tor of  the  Pay  Corps,  on  accounts  of  store- 
keeper at  the  Naval  Academy,  by  act  of 
May  13,  1908  (35  Stat.,  153);  to  pay  witness 
fees  in  naval  coiu1;s  by  act  of  February  16, 
1909  (sec.  12,  35  Stat.,  622);  to  audit  ac- 
counts of  ships'  stores  profits,  by  act  of  June 
24,  1910  (36  Stat.,  619);  and  to  keep  money 
accoimts  so  as  to  show  direct  and  indirect 
charges  incident  to  cost  of  work,  and  make 
annual  report  thereof  to  Congress,  by  act 
of  March  4,  1911  (36  Stat.,  1267). 

Bureau  of  Steam  Engineering  was  designated 
as  Bureau  of  Engineering  by  act  of  June  4, 
1920  (41  Stat.,  828). 

Bureau  of  Yards  and  Docks  to  have  super- 
vision of  power  plants  at  navy  yards.  (Act 
Apr.  27,  ]904,  .33  Stat.,  337). 

Bureaus  in  contracting  for  naval  supplies  shall 
be  at  liberty  to  reject  bids  of  persons  who 
have  previously  defaulted  (sec.  3722,  R. 
S.),  and  shall  not  contract  for  supplies  in 
foreign  country  except  after  advertisement 
in  New  York  (sec.  3723,  R.  S.     See  laws 


relating  to  conti-acts  noted  under  sec.  418, 
R.  S.). 

Chief  of  Naval  Operations,  authorized  by  act  of 
March  3,  1915  (38  Stat.,  929),  as  amended 
by  act  of  August  29, 1916  (39  Stat.,  5.58),  is 
charged,  under  the  direction  of  the  Secre- 
tary of  the  Navy,  with  the  operations  of  the 
fleet  and  with  the  preparation  and  readi- 
ness of  plans  for  its  use  in  war;  and  is  to 
succeed  to  duties  of  the  Secretary  of  the 
Navy  during  the  temporary  absence  of  the 
Secretary  and  the  Assistant  Secretary. 

Hydrographic  Office  was  established  by  law  as 
a  part  of  the  Bureau  of  Navigation,  and  its 
duties  prescribed  by  Congi-esa.  (See  sees. 
431-433,  R.  S.) 

Judge  Advocate  General's  Office  was  estab- 
lished by  act  of  Junes,  1880  (21  Stat.,  164), 
amended  by  act  June  5, 1896  (29  Stat.,  251), 
the  duties  of  the  Judge  Advocate  General 
as  prescribed  by  Congi-ess  being,  under  the 
direction  of  the  Secretary  of  the  Navy,  to 
"receive,  revise,  and  have  recorded  the 
proceedings  of  all  com*ts-martial,  courts  of 
inquiry,  and  boards  for  the  examination  of 
officers  for  retirement  and  promotion  in 
the  naval  service,"  and  to  "perform  such 
other  duties  as  have  heretofore  been  per- 
formed by  the  solicitor  and  naval  Judge 
Ad  vocate  General . " 

Nautical  Almanac  Office  is  provided  for  by 
section  436,  Revised  Statutes.  (See  note 
to  that  section  as  to  consolidation  of  Nau- 
tical Almanac  Office  with  the  Naval  Obser- 
vatory.) 

Naval  Communications  Office  was  established 
by  appropiiations  contained  in  act  of  May 
29,  1920  (41  Stat.,  664). 

Naval  Intelligence  Office  was  established  by 
act  February  24,  1899  (30  Stai.,  874).  See 
also  General  Order  No.  292,  March  23, 1882. 

Naval  Observatory  is  included  in  Title  X, 
"The  Department  of  the  Navy,"  by  sec- 
tion 434,  Revised  Statutes,  and  is  included 
in  the  annual  appropriations  for  the  Navy 
Department  in  the  legislative,  executive, 
and  judicial  appropriation  act. 

Naval  Records  and!^  Library  Office  was  estab- 
lished by  the  legislative,  executive,  and 
judicial  appropriation  act  of  March  4,  1915 
(38  Stat.,  1025),  which  consolidated  appro- 
priations made  in  previous  years  for  "Li- 
brary of  the  Navy  Department"  and 
"Office  of  Naval  Records  of  the  Rebel- 
lion." 

Solicitor's  Office  was  created  by  the  legislative, 
executive,  and  judicial  appropriation  act 
of  May  22, 1908  (35  Stat.,  218),  which  trans- 
ferred certain  clerical  positions  fi-om  the 
office  of  the  Judge  Advocate  General  to  the 
"office  of  the  solicitor."  The  duties  of  the 
solicitor  were  not  fixed  by  statute,  except 
that  he  should  "perform  the  duties  of  the 
Judge  Advocate  Geneml  of  the  Navy  in 
case  of  the  death,  resignation,  absence,  or 
sickness  of  that  officer  " ;  which  pro\'ision, 
however,  was  omitted  from  appropriation 
acts  for  the  following  years,  and  is  not  now 
in  force.  (See  file  24690-77^  Feb.  12,  21, 
1908;  file  25462-6,  Apr.  22, 1909;  file  3980- 
1450,  Nov.  6,  1918;  and  file  22724-51.) 


358 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  410 


The  Navy  pay  ofl3.ce  at  Washington  is  not 
one  of  the  "Isiireaus  and  offices"  of  the  Navy 
Department  within  the  meaning  of  a  contract 
to  deliver  ice  to  the  Navy  Department  and  its 
various  bureaus  and  offices.  (File  6482,  July 
26,  1904.) 

The  Marine  Corps  is  not  one  of  the  bureaus 
of  the  Navy  Department. _  It  is  a  part  of  the 
Naval  Establishment,  but  it  is  not  a  part  of  the 
Navy  Department  as  established  at  the  seat  of 
government;  it  is  under  the  supervision  of  an 
executive  department,  but  that  relation  to  the 
department  is  not  the  same  as  being  a  part  of  it. 
(11  Comp.  Dec,  558;  see  also  28  Op.  Atty. 
Gen.,  487,  and  note  to  sec.  159,  R.  S.) 

"The  office  of  the  Judge  Advocate 
General  of  the  Navy,  while  simply  designated 
as  an  office,  is,  nevertheless,  one  of  the  coordi- 
nate branches  of  the  Navy  Department,  with 
responsibilities  of  no  less  importance  than  those 
of  the  chiefs  of  bureaus.'-'  (S.  Repts.,  vol.  2, 
54th  Cong.,  Istsess.,  1895-96,  No.  472.) 

"The  office  of  Judge  Advocate  General  is  one 
of  great  responsibility  and  requires  a  high  order 
of  talent  to  successfidly  perform  the  duties 
thereof."  (H.  Repts.,  vol.  1,  54th  Cong.,-  1st 
sess.,  1895-96,  No.  285.) 

"Owing  to  the  peculiar  nature  of  the  duties 
pertaining  to  the  office  of  Judge  Advocate  Gen- 
eral in  the  Navy  Department,  it  seems  to  be 
absolutely  necessary  that  the  officer  appointed 
to  said  office  shoidd  be  familiar  with  the  law, 
forms  and  practice  of  courts-martial,  the  rules, 
regidations,  and  established  customs  of  the 
Navy ;  that  he  shoidd  have  practical  experience 
in  the  naval  service  and  an  acquaintance  with 
the  application  of  the  law  and  regulations  to 
the  rank,  grades,  ratings,  and  of  the  various 
classes  of  officers  and  enlisted  men  in  the  service, 
and  that  he  should  possess  proper  legal  attain- 
ments to  enable  him  to  discharge  satisfactorily 
the  duties  of  that  office.''  (H.  Repts.,  vol.  2, 
46th  Cong.,  2d  sess.,  1879-80,  No.  459.) 

The  duties  required  to  be  performed  by  the 
Judge  Advocate  General  "areamoiig  the  most 
important  branches  of  the  public  business  which 
have  been  confided  to  the  Navy  Department." 
(H.  Repts.,  vol.  2,  46th  Cong.,  2d  sess.,  1879-80, 
No.  459.) 

The  office  of  the  naval  solicitor,  as  it  existed 
under  the  Department  of  Justice  [sec.  349, 
R.  S.],  wasunsuited  to  the  requirements  of  the 
naval  service.  After  that  office  was  abolished 
[act  June  19,  1878,  20  Stat.,  205]  and  prior  to  the 
establishment  of  the  office  of  Judge  Advocate 
General  [act  June  8,  1880,  21  Stat.,  164],  the 
necessity  of  having  an  officer  of  the  service, 
possessing  the  necessary  qualifications,  to  sys- 
tematize the  details  or  administration  of  law 
and  justice  in  the  Navy  and  perform  the  duties 
of  Judge  Advocate  General  was  partially  met 
by  the  detail  of  a  suitable  officer  by  the  Secre- 
tary of  the  Navy  to  act  in  that  capacity.  But 
in  view  of  the  changes  to  which  such  office  was 
subjected  by  their  temporary  assignments  it 
was  found  important  that  Congress  should  fix 
the  status  of  such  officer  by  a  provision  for  the 
Navy  analogous  to  that  which  had  long  been 
estabUshed  in  the  Army,  except  that  the  rank 
and  pay  of  the  Judge  Advocate  General  of  the 
Army  are  of  a  higher  relative  grade  (brigadier 
general)  than  that  given  by  law  to  the  officer 


appointed  to  discharge  similar  duties  as  Judge 
Advocate  General  of  the  Navy  (captain  in  the 
Navy  or  colonel  in  the  Marine  Corps).  (H. 
Repts.,  vol.  2,  46th  Cong.,  2d  sess.,  1879-80, 
No.  459.) 

The  business  which  it  was  proposed  to  assign 
to  the  office  of  Judge  Advocate  General  by  the 
act  of  June  8, 1880,  '  consists  of  the  records  of  all 
courts-martial,  coiu-ts  of  inquiry,  boards  for  the 
examination  of  officers  for  retirement  and  pro- 
motion, the  preparation  of  charges  and  specifi- 
cations for  coiu"ts-martial,  the  organization  of 
courts  and  boards,  the  various  claims  fijed  for 
investigation,  numerous  questions  of  law,  regu- 
lation, and  other  matters.  The  records  of  pro- 
ceedings of  the  various  courts  and  examining 
boards,  many  of  them  being  voluminous,  re- 
quire careful  reading  and  examination  prelimi- 
nary to  action  thereon  by  the  Secretary.  The 
claims  filed  for  investigation  and  the  questions 
of  law  and  regulation  arising  in  the  department 
necessitate  a  thorough  examination  and  con- 
sideration of  the  statutes,  regidations,  and  estab- 
lished customs  of  the  service  relating  thereto; 
and  the  bxisinesa  generally  of  the  office  being  so 
extensive,  it  is  impossible  for  the  Secretary,  in 
the  midst  of  other  varied  and  important  duties 
required  of  him,  to  give  to  this  branch  of  the 
public  business  the  attention  and  consideration 
that  its  importance  demands.  *  *  *  All 
other  executive  depai'tments  of  the  Government 
are  provided  by  law  with  an  officer  to  perform 
the  duties  therein  similar  to  those  required  of 
the  officer  who  may  be  appointed  to  the  office  of 
Judge  Advocate  General  of  the  Navy."  (H. 
Repts.,  vol.  2,  46th  Cong.,  2d  sess.,  1879-80, 
No.  459.) 

The  word  "revise"  as  used  in  section  1199, 
Revised  Statutes,  prescribing  the  duties  of  the 
Judge  Advocate  General  of  the  Army  with  re- 
spect to  court-martial  proceedings,  implies  no 
authority  to  reverse;  it  indicates  the  discharge 
of  a  clerical  duty,  analogous  to  that  of  receiv- 
ing and  recording  the  proceedings.  (Ex  parte 
Mason,  256  Fed.  Rep.,  384.) 

The  creation  of  a  new  bureau  in  a  depart- 
ment can  only  be  authorized  by  act  of  Congress, 
designating  its  chief,  defining  his  duties,  and 
providing  for  the  appointment  or  transfer  of  the 
necessary  clerical  force  and  messenger.  (10  Op. 
Atty.  Gen.,  11,  holding  that  the  President  was 
not  authorized,  without  statutory  enactment,  to 
create  a  militia  bureau  in  the  War  Department.) 

Contracts  for  bureaus. — "TheBin"eau  of 
Supplies  and  Accounts  is  the  piu"chasing  agent 
of  the  Navy  Department  for  all  supplies,  and 
should  be  so  recognized,"  (File  28233-1216, 
June  1,  1914.) 

The  law  expressly  authorizes  the  Secretary 
of  the  Navy  to  distribute  the  business  of  the 
department  between  the  bureaus  concerned  in 
such  manner  as  he  deems  fit.  The  Naval  In- 
structions, 1913  (art.  1^651),  provides  that  "all 
purchases  and  payments  therefor  shall  be  made 
under  the  dii-ection  of  the  Bureau  of  Supplies 
and  Accoimts,  and  orders  directing  such  pur- 
chases and  payments  shall  be  given  only  by 
that  bineau.  When  open  purchase  requisitions 
have  been  approved  by  chiefs  of  bureau,  they 
shall  be  transmitted  to  the  Bureau  of  Supplies 
and  Accounts  for  action."  It  is  also  provided 
bv  the  Navy  Regulations,  1913  (art.  R-4641), 


359 


Sec.  419. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


that  "the  word  'i>uivhase,'  when  used  in  the 
Navy  Reguhitions  or  Naval  Instructions,  shall 
be  construed  a.s  relating  *  *  *  to  the  con- 
tract or  aijreement  for  the  sale  and  delivery  of 
any  article  or  for  the  iicrformance  of  any  serv- 
ing *  *  *  "  Thus  interpreted,  as  it  must 
be,  the  above  article  of  the  Naval  Instructions 
expressly  provides  that  the  "contract  or  agree- 
ment *  *  *  for  the  performance  of  any 
service"  shall  be  made  under  the  direction  of 
the  Bureau  of  Supplies  and  Accounts,  and  that 
"orders  directing''  such  contract  or  agreement 
shall  be  given  "only  by  that  bureau."  (File 
3973-120.  Mar.  31,  1916.) 

The  terms  of  naval  contracts  are  settled  by 
the  administrative  bureau;  a  requisition  em- 
bodying the  transaction  is  then  sent  to  the 
Bureau  of  Sui)plies  and  Accounts,  which  pre- 
pares a  formal  contract  in  writing,  in  accordance 
^vith  section  3744,  Revised  Statutes.  The  con- 
tract is  made  by  the  United  Slates  through  the 
administrative  bureau,  and  the  formal  contract 
^\^.ll  be  reformed  where,  through  clerical  error  in 
the  requisition,  it  did  not  embody  the  agreed 
terms.  (Ackerlind  r.  U.  S.,  240  U.  S.,  531, 
reversing  Lind  v.  XJ.  S.,  49  Ct.  Cls.,  635,  and  12 
Com]i.  Dec,  447.) 

Duties  of  the  various  bureaus. — In  the 
Navy,  while  the  different  bureaus  and  the 
manner  of  appointments  of  chiefs  of  bureaus 
are  established  by  law,  the  descriptions  and 
distribution  of  the  duties  performed  in  each 
bureau  are  left  to  the  discretion  and  authority 
of  the  Secretary  of  the  Navy,  with  the  approval 
of  the  President.  The  powers  vested  in  the 
Secretary-  of  the  Na\y  are  of  more  than  usual 
extent.  Thus,  for  instance,  in  the  organization 
of  the  Army  the  statutes  define  the  duties  of 
the  chiefs  of  bureaus  (or  departments,  as  they 
are  styled),  suih  as  the  Quartermaster,  the  Com- 
missary, the  Ordnance  officers,  etc.  (Op.  Atty. 
Gen.,  Oct.  27,  1909,  file  3980-530.) 

It  is  unquestionable  that  Congress  has  in- 
tended that  the  administration  of  affairs  in  the 
Navy  should  be  through  the  bureaus  created 
by  the  statutes  now  embodied  in  section  419, 
Revised  Statutes.  In  isolated  instances  some 
of  the  duties  of  officers  in  one  of  the  bureaus 
have  been  made  the  subject  of  statutory  defini- 
tion; but  the  business  of  the  department 
"shall  be  distribiited  among  these  bureaus." 
This  language  is  mandatory.  The  manner  of 
the  distribution  is  left  to  the  discretion  of 
the  Set-retary.  The  instrumentalities  through 
which  he  performs  the  business  are  fixed  by  the 
statute.  Having  the  power  to  make  the  regu- 
lations, he  can  repeal,  modify,  or  alter  them. 
Having  the  power  to  distribute  the  business, 
he  can  change  the  distribution  and  make  new 
distribution.  Subject  to  restrictions  in  the 
appropriation  acts,  he  can  take  duties  from  one 
bureau  and  a.ssign  them  to  another  bureau. 
(Op.  Atty.  Gen.,  Oct.  27,  1909,  file  3980-530.) 

Congress  makes  appropriations  for  the  naval 
service  in  recognition  of  the  distribution  of 
duties  under  section  419.  In  the  appropriation 
acts  the  moneys  appropriated  for  expenses  are 
placed  under  the  headings  of  the  different 
bureaus  in  conformity  with  the  requirements 
of  sections  430  and  3676,  Revised  Statutes. 
WTiile,  therefore,  it  is  within  the  authority  of 
the  Secretary  of  the  Navy  to  make  any  changes 


in  the  distribution  of  business  that  may  seem 
to  him  expedient  and  proper,  sui'h  authority 
must  be  exercised  so  as  not  to  conflict  with  any 
act  of  Congress.  (Op.  Atty.  Gen.,  Oct.  27, 
1909,  file  3980-530.) 

The  grant  of  power  by  Congress  to  distribute 
the  business  of  the  department,  although 
general  and  extensive,  must  be  considered  in 
connection  with  other  statutes  in  relation  to  the 
same  subject  matter.  Thus,  by  the  act  of  June 
22,  1906,  section  4  (34  Stat.,  448),  it  is  required 
that  the  annual  estimates  shall  be  prepared  and 
submitted  ' '  according  to  the  order  and  arrange- 
ment of  the  appropriation  acts  for  the  year 
preceding,"  and  that  "any  changes  in  such 
order  and  arrangement  and  transfers  of  salaries 
from  one  office  or  bureau  to  another  office  or 
bureau,  or  the  consolidation  of  oflices  or  bureaus 
desired  by  the  head  of  any  executive  depart- 
ment, may  be  submitted  by  note  in  the  esti- 
mates. ' '  This  provision  does  not  interfere  with 
the  authority  to  redistribute  the  matters  of 
administration  or  to  transfer  duties  from  one 
bureau  to  another,  nor  does  it  alter  the  manner 
of  appropriations  for  the  different  bureaus. 
Indeed,  it  clearly  recognizes  the  authority  to 
change  the  duties  of  the  several  bureaus.  But 
it  also  declares  the  manner  in  whii  h  changes 
in  the  appropriations  shall  be  made.  This 
applies  to  specific  appropriations  made  for 
disbursements  in  the  different  bureaus.  (Op. 
Atty.  Gen.,  Oct.  27,  1909,  file  3980-530.  In 
this  connection  see  act  of  Mar.  4, 1915,  38  Stat., 
1084,  with  respect  to  transfer  of  funds  between 
bureaus  and  departments.) 

Grouping  of  bureaus  in  "divisions." — 
The  work  of  the  Navy  Department  may  be 
grouped  under  general  divisions,  each  of  which 
may  include  different  bureaus;  and  in  each 
division  the  Secretary  of  the  Na\'y  may  detail 
an  officer  of  the  Navy  as  an  "aid"  to  ad\'ise 
the  Secretary  on  all  matters  pertaining  to  the 
duties  of  the  division  and  to  transmit  orders 
of  the  Secretary  to  the  various  chiefs  of  bureaus 
and  to  other  subordinates  of  the  department, 
signing  such  orders  "by  direction  of  the  Secre- 
tary of  the  Na\'y."  However,  such  aids  can 
not,  individually  or  collectiA^ely,  exercise  any 
supervisory  authority  over  the  chiefs  of  bureaus. 
That  is  the  exclusive  pro\anceof  the  Secretary 
and  can  not  be  delegated  by  him.  The  author- 
ity of  the  aids  to  transmit  orders  "by  direction 
of  the  Secretary"  can  not  be  considered  as 
conferring  authority  to  issue  orders.  This 
formula  can  not  be  used  to  warrant  any  inde- 
pendent action  by  fhe  aids.  The  aids  are 
merely  the  eyes  and  hands  of  the  Secretary, 
and  the  grouping  of  the  bureaus  under  divisions 
are  merely  convenient  methods  of  enabling 
the  Secretary  to  exercise  his  legal  authority 
over  them.  (Op.  Atty.  Gen.,  Oct.  27,  1909', 
file  3980-530.) 

If  the  plan  involved  the  creation  of  new 
offices  and  the  appointment  of  new  officers  to 
perform  the  business  of  the  department,  it 
would  be  beyond  the  power  of  the  Secretary, 
with  the  approval  of  the  President,  to  make 
such  regulations.  That  work  has  been  provided 
for  by  the  establishment  of  the  bureaus  and  the 
appointment  by  the  President,  under  his  con- 
stitutional power,  of  the  officers  to  administer 
their  duties.    To  assign  those  duties  to  other  of- 


360 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  420. 


ficers  in  other  bureaus  or  boards  would  be  to  cre- 
ate new  offices  and  new  officers,  which  would  be 
not  authorized  and  in  conflict  with  existing  law. 
(Op.  Atty.  Gen.,  Oct.  27,  1909,  file  3980-530.) 

That  officers  detailed  as  aids  under  this  plan 
can  not  by  virtue  of  such  detail  perform  the 
duties  of  the  Secretary  during  the  latter' s  ab- 
sence, see  note  to  section  179,  Revised  Statutes. 

[The  "aids"  referred  to  above,  namely  "Aid 
for  Operations,"  "Aid  for  Personnel,"  "Aid  for 
Material,"  and  "Aid  for  Inspections,"  were 
established  by  Changes  in  Navy  Regulations 
No.  6,  of  November  18,  1909,  and  were  abol- 


ished by  Changes  in  Navy  Regulations  No.  5, 
of  July  15,  1915.] 

The  Secretary  of  the  Navy  may  performL 
any  duties  vested  by  law  in  the  chief  of  a 
bureau  during  a  temporary  vacancy  in  such 
bureau  chiefship.  (File22724-7e,  May  14, 1909, 
and  see  28  Op.  Atty.  Gen.,  487.)  But  where 
a  contract  provides  that  the  chief  of  a  bureau 
may  under  certain  conditions  annul  the  same, 
the  Secretary  of  the  Navy,  during  the  tempo- 
rary absence  of  the  bureau  chief,  has  no  author- 
ity to  annul  said  contract.  (Williams  Eng. 
and  Cont.  Co.,  v.  U.  S.,  55  Ct.  Cls.,  349.) 

Sec.  420.  [Orders  considered  as  emanating  from  Secretary.]  The  several 
Bureaus  shall  retain  the  charge  and  custody  of  the  books  of  records  and  accounts 
pertaining  to  their  respective  duties ;  and  all  of  the  duties  of  the  Bureaus  shall  be 
performed  under  the  authority  of  the  Secretary  of  the  Navy,  and  their  orders 
shall  be  considered  as  emanating  from  him,  and  shall  have  full  force  and  effect 
as  such.— (.31  Aug.,  1842,  c.  286,  s.  8,  v.  5,  p.  580;  5  July,  1862,  c.  134.  s.  4, 
V.  12,  p.  511.) 


See  note  to  section  418  Revised  Statutes,  as  to 
department's  books,  records,  and  property. 
The  orders  of  the  Chief  of  Naval  Operations  shall 
be  considered  as  emanating  from  the  Secre- 
tary and  shall  have  full  force  and  effect  as 
such.     (Act  Aug.  29,  1916,  39  Stat.,  558.) 
The  duties  of  the  JudgeAdvocate  General  shall 
be  performed  under  the  direction  of  the 
Secretary  of  the  NaA^.     (Act  June  8, 1880, 
21  Stat.,  164.) 
Legal  liability  of  chiefs  of  bureaus  for 
official  acts. — See  note  to  section  417,  Revised 
Statutes,  "Legal  liability  of  Secretary  for  offi- 
cial acts." 

Orders  issued  by  bureaus.— This  statute 
does  not  mean  to  say  that  those  bureaus,  and  the 
Secretary  of  the  Navy  in  relation  to  them,  are 
independent  of  the  President.  Of  coiuse  the 
chief  of  the  bureau  does  not  profess  to  speak  in 
the  name  of  the  President,  but  in  that  of  the 
Secretary-;  yet  his  acts  have  legal  effect  as  the 
acts  of  the  President,  represented,  pro  hac  \'ice, 
by  the  Secretary  of  the  Navy.  (7  Op.  Atty. 
Gen.,  453,  474;  see  also  McGowan  v.  Moody,  22 
App.  D.  C,  148,  noted  under  sec.  158,  R.  S.) 

It  is  well  settled  that  the  President  may  act 
through  the  heads  of  the  different  departments, 
and  if  the  head  of  one  of  the  executive  depart- 
ments a(  ts  it  will  be  presumed,  in  the  absence 
of  cA-idence  to  the  contrary,  that  he  acted  by 
direction  of  the  Preside  nt.  But  no  such  power 
has  been  delegated  to  other  subordinate  officers 
,  of  the  Government,  whether  civil  or  military, 
and  the  acts  of  such  officers,  without  express 
authorization  from  the  President  or  from  Con- 
gress, are  ineffectual  for  any  purpose.  Although 
the  court  will  presume  that  the  head  of  a  de- 
partment acts  by  direction  of  the  President  in 
the  absence  of  evidence  to  the  contrary,  this 
presumption  does  not  extend  down  the  line  to 
all  civil  and  military  officers  of  the  Government, 
of  whatever  grade.  (Northern  Pac.  Ry.  Co.  v. 
Mitchell,  208  Fed.  Rep.,  469.) 

In  all  the  cases  considered — and  We  are  aware 
of  no  authority  to  the  contrary — it  will  be  noted 
that  the  power  of  the  President  was  exercised 
through  the  head  of  the  department  and  not  by 


a  subordinate.  (Truitt  v.  U.  S.,  38  Ct.  Cls., 
404.) 

The  Chief  of  the  Bureau  of  Navigation  is  not 
empowered  to  detach  one  member  of  a  naval 
court-martial  and  substitute  another  without 
authority  from  the  Secretary  of  the  Navy  who 
convened  the  court.  Where  this  was  done,  the 
court  was  illegally  constituted,  and  its  judg- 
ment ought  not  to  be  enforced.  (22  Op.  Atty. 
Gen.,  137.)  _ 

Under  this  section,  appointments  issued  by 
the  Chief  of  the  Bureau  of  Navigation  to  officers 
in  the  naval  auxiliary  servdce  have  the  same 
legal  effect  as  if  they  had  been  signed  by  the 
Secretary  of  the  Navy.  (14  Comp.  Dec,  334. 
But  ci\dlian  employees  of  the  bureaus  and 
offices  of  the  Navy  Department  must  be 
appointed  by  the  Secretary  of  the  Navy  or  with 
his  written  approval,  by  express  requirement  of 
Art.  52,  Naval  Instructions,  1913,  quoted  under 
sec.  416,  R.  S.)  _ 

This  statute  gives  full  authority  to  the  heads 
of  the  varicus  bureaus,  and  to  the  acting  heads 
thereof,  when  properly  designated,  to  issue 
under  the  authority  of  the  Secretary  of  the  Navy 
all  orders  pertaining  to  the  business  of  their 
respective  bureaus  with  the  same  force  and 
effect  as  though  the  orders  were  issued  by  the 
Secretary  himself.  Nor  is  it  necessary  that 
such  orders  should  afterwards  be  approved  by 
the  Secretary,  but  only  that  they  should  be 
issued  under  his  authority.  It  is  understood 
that  the  Acting  Secretary  has  lately  directed 
that  all  orders  signed  by  the  Chief  of  the  Bureau 
of  Navigation  shall  have  the  same  force  and 
effect  as  though  signed  by  the  Secretary.  It 
may  be  doubted  whether  such  an  order  was 
necessary,  in  view  of  the  law  and  regulations 
defining  the  duties  of  that  bureau;  but  suppcs- 
ing  such  specific  authority  necessary,  this 
action  on  the  part  of  the  Acting  Secretary  would 
supply  such  authority.     (9  Comp.  Dec,  351.) 

"An  order  *  *  *  issued  by  the  Bureau 
of  Navigation  under  authority  of  the  Secretary 
of  the  Na\n>?,  directing  an  officer  to  perform  a 
journey,  is 'sufficient  authority  for  him  to  per- 
form the  travel  and  to  entitle  him  to  mileage 


361 


Sec.  421. 


Pt.  2.  REVISED  STATUTES. 


Navy  Department. 


therefor,  without  the  approval  of  the  Secre- 
tary."    (OCoinp.  Dec,  351.) 

The  gi'iu-ral  rule  that  orclere  of  the  Bureau  of 
Navigation  have  full  force  aud  effect  as  orders 
of  the  Secretary  of  the  Navy  has  no  application 
where  the  law  B])eci(ically  directs  otlicnnse, 
aud  such  special  cases  must  be  given  ellect  aa 
exceptions  to  the  general  rule.  Thus  where  the 
law  vests  in  the  Secretary  the  exercise  of  per- 
sonal judgment  or  discretion,  or  reciuiri's  nim 
personally  to  perform  a  certain  duty  he  can  not 
delegate  to  another  the  authority  to  exercise 
such  judgment  or  discretion  or  designate 
another  to  perform  the  special  duty  which  the 
law  devolves  upon  him.  (9  Comp.  Dec.,  351, 
citing  18  Op.  Atty.  Gen.,  424,  432,  and  Reeside 
r.  U.  S.,2Ct.  Cls.,1.) 

A  statute,  providing  that  where  repeated 
travel  b  ^tween  two  or  more  points  is  performed 
by  officers,  "in  such  vicinity  as  in  the  discre- 
tion of  the  Secretary  of  the  Navy  is  appropri- 
ate," he  may  direct  that  actual  and  necessary 
expenses  only  be  allowed  (act  July  1,  1902,  32 
Stat.,  6G3),  requires  that  the  Secretary  person- 
ally exercise  his  discretion  in  determining 
whether  an  allowance  of  expenses  instead  of 


mileage  is  appropriate,  being  limited  in  this 
respect  to  repeated  journeys  made  between  two 
or  more  places  in  such  vicinity  as  he  may  decide 
upon.  The  decision  of  these  questions  can  not 
be  delegated  to  the  head  of  a  bureau  of  the  Navy 
Department,  nor  to  any  one,  bvit  is  imposed 
upon  the  Secretary  himself.  (9  Comp.  Dec., 
351.) 

See  cases  noted  imder  section  415,  Revised 
Statutes,  "Assistant  Secretary  of  the  Navy." 

Appeals  from  chiefs  of  bureaus. — It  is 
competent  for  Congress  to  give  finality  to  the 
determination  of  subordinate  administrative 
officers,  provided  due  process  of  law,  that  is,  a 
notice  and  a  hearing,  is  pro\'ided  (Orchard  v. 
Alexander,  157  U.  S.,  372).  Where  Congress 
does  not  do  this,  the  head  of  a  department  may 
change  the  erroneous  decision  of  a  subordinate 
(U.  S.  V.  Cobb,  11  Fed.  Rep.,  76);  and  appeals 
may  be  taken  to  the  head  of  the  department 
because  of  his  supervisory  powers  over  the 
whole  business  of  the  department  (Knight  v. 
U.  S.  Land  Assn.,  142  U.  S.,  161).  In  such 
cases  the  appeal  should  be  to  the  head  of  the 
department  and  not  to  the  President.  (10  Op. 
Atty.  Gen.,  526.) 


Sec.  421.  [Chiefs  of  Bureaus.]  The  chiefs  of  the  several  Bureaus  in  the 
Department  of  the  Navy  shall  be  appomted  by  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate,  from  the  classes  of  officers  mentioned  in  the 
next  five  sections  respectively,  or  from  officers  having  the  relative  rank  of 
captain  in  the  staff  corps  of  the  Navy,  on  the  active  fist,  and  shall  hold  their 
ofiices  for  the  term  of  four  years. — (5  July,  1862,  c.  134,  ss.  1,  2,  v.  12,  p.  510; 
3  Mar.,  1871,  c.  117,  s.  10,  v.  16,  p.  537.) 


Amendment  to  this  section  was  made  by  act 
of  March  3,  1899,  section  7  (30  Stat.,  1006), 
by  changing  the  words  ' '  the  relative  rank 
of "  to  read  ' '  the  rank  of . " 

Assistants  to  chiefs  of  bureaus  are  specifically 
provided  for  by  the  following  laws:  Biu'eau 
of  Medicine  and  Surgery,  section  1375  Re- 
vised Statutes.  Bureau  of  Navigation,  act 
of  March  3, 1893  (27  Stat.,  717).  Bureau  of 
Supplies  and  Accoimts,  acts  of  July  26, 
1894  (28  Stat.,  132);  March  3, 1899  (30  Stat., 
1038) ;  and  f^ebruury  25, 1903  (32  Stat. ,  890). 
Bureau  of  Orcbiance,  act  of  May  4,  1898  (30 
Stat.,  373).  Bureau  of  Steam  Engineeiing, 
actof March3, 1905 (33 Stat.,  1111).  Bureau 
of  Yards  and  Docks,  Bureau  of  Construc- 
tion and  Repair,  Office  of  the  Judge  Advo- 
cate General,  and  Office  of  Chief  of  Naval 
Operations,  act  of  August  29,  1916  (39  Stat. 
558). 

Judge  Advocate  General  is  to  be  appointed 
' '  from  the  officers  of  the  Navy  or  the  Marine 
Corps."  (Act  June  8,  1880,  21  Stat., 
164.) 

Pay  of  chiefs  of  bureaus  was  fixed  by  section  1565, 
Revised  Statutes,  as  highest  pay  of  gi'ade 
to  which  they  belong,  not  below  that  of 
commodore;  the  act  of  llarch  3, 1899,  section 
7  (30  Stat.,  1005),  provided  that  they 
should  receive  the  same  pay  and  allowances 
as  a  brigadier-general  in  the  Army:  the  act 
of  May  13, 1908  (35  Stat. ,  128),  provided  that 
their  pay  and  allowances  "shall  be  the 


highest  pay  of  the  gi-ade  to  which  they 
belong,  and  not  below  that  of  rear  admiral 
of  the  lower  nine;"  the  act  of  June  24, 1910 
(36  Stat.,  607),  provided  that  their  pay  and 
allowances  should  be  the  highest  shore- 
duty  pay  and  allowances  of  the  rear  admiral 
of  the  lower  nine;  and  the  act  of  August 
22,  1912  (37  Stat.,  328),  repealed  the  pro- 
vision of  the  act  of  June  24,  1910,  without 
making  any  further  provision  on  the  sub- 
ject. [Act  of  May  13, 1908,  was  revived  by 
the  law  last  quoted.  Comp.  Dec,  June  22, 
1916,  file  26254-2045.]  By  act  of  July  1, 
1918  (40  Stat.,  717),  chiefs  of  bureaus  in 
the  Navy  Department  are  to  receive  the 
same  pay  and  allowaxices  as  chiefs  of  bu- 
reaus in  the  War  Department. 

Pay  of  Chief  of  Na\'al  Operations  shall  be 
$10,000  per  annum  (act  Aug.  29,  1916,  39 
Stat.,  558);  and  he  shall  have  such  allow- 
ances as  are  or  may  be  prescribed  by  or  in 
pursuance  of  law  for  the  grade  of  Cfeneral 
in  the  Army.  (Act  July  1,  1918,  40  Stat., 
716.) 

Pay  of  Judge  Advocate  General  was  the  high- 
est pay  of  a  captain  in  the  Navy  or  the  pay 
and  allowances  of  a  colonel  in  the  Marine 
Corps  under  the  act  of  June  8,  1880  (21 
Stat.,  164),  as  amended  by  act  of  June  5, 
1896  (29  Stat.,  251);  by  act  of  July  1,  1918 
(40  Stat.,  717),  he  is  to  receive  the  same 
pay  and  allowances  as  the  Judge  Advocate 
General  of  the  Army. 


362 


Navy   Department. 


PL  2.  REVISED  STATUTES. 


Sec.  421. 


Eank  of  chiefs  of  bureaus  was  fixed  as  commo- 
dore by  sections  1471  and  1472,  Revised 
Statutes;  the  act  of  March  3, 1899,  section  7 
(30  Stat.,  1005),  provided  that  they  should 
have  rank  of  rear  admii-al,  if  below  that 
grade;  the  act  of  July  1, 1918  (40  Stat.,  717), 
gave  them  rank  corresponding  to  that  of 
chiefs  of  bureaus  in  the  War  Department. 
Rank  of  Judge  Advocate  General  was  that  of 
captain  in  the  Navy  or  colonel  in  the 
Marine  Corps,  under  the  act  of  June  8, 1880 
(21  Stat.,  164),  as  amended  by  act  of  June 
5,  1896  (29  Stat.,  251);  by  act  of  July  1, 
1918  (40  Stat.,  717),  he  is  given  rank  cor- 
responding to  that  of  the  Judge  Advocate 
General  of  the  Army. 
Rank  of  Chief  of  Naval  Operations  is  that  of 
Admiral.     (Act  Aug.   29,   1916,   39  Stat., 
558.) 
Retirement  of  Chiefs  of  the  Bui'eaus  of  Medicine 
and    Siu-gery,     Supplies    and    Accounts, 
Steam  Engineering  [now  Engineering]  and 
Construction  and  Repair,  with  rank  of  com- 
modore [now  rear  admiral] ,  if  retired  for  age 
or  length  of  service,  was  authorized  by  sec- 
tion 1473,  Revised  Statutes. 
Retirement  of  any  officer  who  shall  serve  as 
chief  of  a  bureau  "and  shall  subsequently 
be  retired,"  with  "the  rank,  pay,  and  al- 
lowances authorized  by  law  for  the  retire- 
ment of  such  bureau  chief, ' '  was  authorized 
by  act  of  May  13,  1908  (35  Stat.,  128). 
Retirement. — Chiefs  of    bureaus   eligible    for 
retirement   after   30    years'    service   were 
entitled  to  the  permanent  rank,  title,  and 
emoluments  of  a  chief  of  bureau,  while  on 
the  active  list,  the  same  as  they  would 
have  received  if  retired  for  age  or  length  of 
service.     (Act  June  24, 1910,  36  Stat.,  607.) 
This  provision  was  repealed  by  act  of  Au- 
gust 22,  1912 (37  Stat., 328), which  contained 
a  proviso  that  no  officer  who  had  received 
the  benefits  of  the  act  of  1910  should  be 
deprived    thereof    on    account    of    such 
repeal. 
Retirement  of  Chief  of  Naval  Operations  shall 
be  with  the  lineal  rank  and  retired  pay  to 
which  he  would  be  entitled  if  not  so  serv- 
ing.    (Act  Aug.  29,  1916,  39  Stat.,  558.) 
Service. — Any  officer  with  the  rank  of  rear 
admiral  who  has  heretofore  served  a  full 
term  and  is  now  serving  as  chief  of  any 
bureau  of  the  Navy  Department  shall  be 
credited  with  service  for  all  purposes  as 
provided  by  section  1486  of  the  Revised 
Statutes,    and  nothing   herein  contained 
shall  operate  to  increase  the  rank  or  pay 
of  any  such  officer  as  now  authorized  by 
law.     (Act  July  11,  1919,  41  Stat.,  140.) 
Staff  officers  who  have  served  a  full  term  as 
chief  of  bureau  were  thereafter  exempted 
from  sea  duty,  except  in  time  of  war,  by 
section  1436,  Revised  Statutes. 
Titles  of  Chiefs  of  Bureaus  of  Medicine  and 
Sin-gery,   Supplies  and  Accounts,    Steam 
Engineering  [now  Engineering],  and  Con- 
struction and  Repair,  shall  be  Siu-geon-Gen- 
eral.  Paymaster  General,  Engineer  in  Chief, 
and  Chief  Constructor,  respectively.    (Sec. 
1471,  R.  S.) 


I.  Appointment  of  Chiefs  of  Bureaus. 
II.  Term  of  Office, 

III.  Status  of  Chiefs  of  Bureaus. 

IV.  Rank,  Titles,  and  Precedence. 

V.  Pay  of  Chiefs  of  Bureaus  and  Assist- 
ants. 
VI.  Retirement  of  Chiefs  of  Bureaus. 
VII.  Assistants  to  Chiefs  of  Bureaus. 


I.  Appointment  of  Chiefs  of  Bureaus. 

Who  may  be  appointed  chiefs  of  bu- 
reaus.— The  act  of  July  5,  1862,  reorganizing 
the  Navy  Department  (12  Stat.,  510),  estab- 
lished eight  bureaus  therein,  and  in  the  second 
section  made  the  following  provisions  with 
respect  to  the  appointment  of  chiefs:  "The 
President  of  the  United  States,  by  and  with  the 
advice  and  consent  of  the  Senate,  shall  appoint 
from  the  List  of  officers  of  the  Navy,  not  below 
the  grade  of  commander,  a  chief  for  each  of  the 
Bureaus  of  Yards  and  Docks,  Navigation, 
Equipment  and  Recruiting,  and  of  Ordnance, 
and  shall  in  like  manner  appoint  a  chief  of  the 
Bureau  of  Construction  and  Repair,  who  shall 
be  a  skillful  naval  constructor;  and  shall  also 
appoint  a  chief  of  the  Bureau  of  Steam  Engi- 
neering, who  shall  be  a  skillful  engineer,  and  be 
selected  from  the  list  of  chief  engineers  of  the 
Navy;  and  shall  also  appoint  a  chief  of  the 
Bureau  of  Medicine  and  Surgery,  who  shall  be 
selected  from  the  list  of  surgeons  of  the  Navy; 
and  a  chief  of  the  Bureau  of  Provisions  and 
Clothing,  who  shall  be  selected  from  the  list  of 
paymasters  of  the  Navy  of  not  less  than  ten 
years  standing." 

The  subsequent  act  of  March  3,  1871,  which 
prescribes  the  number,  rank,  and  pay  of  the 
officers  of  the  various  staff  corps  of  tha  Navy, 
contained  near  the  close  of  the  tenth  section 
the  following  pro\iso  (sec.  10,  chap.  117,  16 
Stat.,  537):  ^^And  provided  further,  That  chiefs 
of  bureaus  may  be  appointed  from  the  officers 
having  the  relative  rank  of  captain  in  the  staff 
corps  of  the  Navy  on  the  active  Hst." 

The  commissioners  who  drafted  the  Revised 
Statutes  treated  the  act  of  1871,  not  as  super- 
seding but  as  supplementing  the  act  of  1862, 
and  enlarging  the  power  of  the  President  with 
respect  to  the  appointment  of  chiefs,  so  they 
brought  the  two  together  in  section  421,  with 
this  explanation  (Commissioner's  Draft  Rev. 
Stats.,  p.  235): 

"The  Commissioners  have  treated  the  act  of 
1871,  cited  in  the  margin,  not  as  repealing  or 
superseding  the  restrictions  in  the  act  of  1862 
on  the  appointment  of  chiefs  of  bureaus,  but  as 
giving  an  alternative  or  optional  power  of 
appointment;  so  that  the  President  may  make 
a  given  appointment  either  from  the  class 
indicated  by  the  act  of  1862  or  from  that  indi- 
cated by  the  act  of  1871,  as  he  judges  best." 

Congress  adopted  the  revision  as  recom- 
mended, thus  giving  its  apparent  approval  to 
the  intsi-jiretation  placed  on  the  acts  of  1862 
and  1871  by  the  commissioners.  (22  Op.  Atty. 
Gen.,  47;  see  also  note  to  section  422,  Pv,.  S.) 

Retired  ofl3.cer  may  be  appointed. — Sec- 
tion 421,  Revised  Statutes,  as  punctuated, 
would  apparently  limit  appointments  to  officers 


54641°— 22- 


24 


363 


Sec.  421. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


on  the  active  list,  the  clause,  "on  the  active 
list."  being  separated  from  the  other  clauses  by 
commit,  and  therefore  qualifpng  them  all. 
Without  the  commas,  the  words  '"on  the  active 
Ust' '  apply  to  appointments  from  the  staff  corps 
only.  The  original  statutes  wliich  are  consoli- 
dated in  section  421  restricted  appointments 
to  the  active  list,  only  where  made  from  the 
staff  corps.  Tlie  change  in  the  law,  if  made, 
rest-^,  tlierefore,  upon  the  mere  in.sertiou  of  a 
comma  in  the  revision.  Wliere  doubt  exists 
as  to  the  meaning  of  a  section  of  the  Revised 
Statutes,  it  is  atlmissible  in  construction  to 
se(>k:  liglit  in  the  hi.story  of  the  legislation. 
AI.SO,  a  construction  that  tlie  revision  amends 
the  law  Ls  not  favored.  Nor  is  a  construction 
favored  which  is  restrictive  of  the  right  of 
selection  in  making  appointments.  Accord- 
ingly, held,  -while  not  tree  from  doubt,  that  a 
retired  line  officer  is  eligible  for  appointment  as 
Chief  of  the  Bureau  of  Navigation.  (File  21-5, 
Dec.  11,  1907,  Opinion  of  Solicitor.  See  also 
22  Op.  Atty.  Gen.,  47,  noted  above.) 

The  statute  authorizing  the  employment  of 
retired  officers  on  active  duty  would  not  em- 
power the  Secretary  of  the  Navy  to  order  a, 
retired  officer  to  perform  the  duty  of  Cliief  of 
the  Biu-eau  of  Navigation.  Doubtless,  however, 
such  statute  should  be  liberally  construed,  and, 
in  so  far  as  it  has  any  bearing  on  the  matter,  its 
obvious  puj-pose  wiis  to  enlarge  the  eligiljility 
of  retired  officers  for  active  duty.  The  inten- 
tion of  Congress  in  passing  it  was  to  make 
retired  officers  generally  available  for  whatever 
active  duty  they  were  able  to  perform.  (File 
21-5,  Dec.  11,  1907,  opinion  of  Solicitor.) 

The  selection  of  the  Judge  Advocate  General 
is  not  limited  to  the  active  Ust  of  the  Navy  or 
Marine  Corps,  but  may  be  made  from  the  re- 
tired list  as  well,  since  officers  on  the  retired 
list  come  witliin  the  description  of  "officers" 
within  the  meaning  of  the  act  authorizing  the 
appointment  to  be  made.     (8  Comp.  Dec,  895.) 

Retired.  oflB.cer  not  eligible. — Retired 
officers  are  not  eligible  for  appointment  as  chiefs 
of  bureaus,  since  section  421  in  terms  requires 
that  bureau  chiefs  shall  be  appointed  from 
officers  on  the  active  list.  This  requirement  is 
not  modified  by  the  subsequent  statute  with 
respect  to  the  assignment  of  retired  officers  to 
active  duty,  since  by  such  assignment  officers 
are  not  in  fact  placed  on  the  active  list,  but  are 
merely  detailed  for  the  performance  of  active 
duty.     (See  file  21,  Nov.  25, 1902,  Op.  J.  A.  G.) 

The  construction  placed  upon  the  law  by  the 
department,  in  its  practice,  is  against  the  eligi- 
bility of  retired  officers  for  appointment  as 
chiefs  of  bureaus.  Officers  so  serving  have, 
during  their  terms  of  office,  been  retired  with- 
out vacating  their  positions;  but  it  is  under- 
etood  that  no  officers  on  the  retired  Ust,  during 
the  past  15  years  at  least,  have  been  selected  to 
act  as  chiefs  of  bureaus,  (l^^le  21-5,  Dec.  11, 
1907,  Opinion  of  SoUcitor.) 

It  would  seem  that  under  the  laws  authoriz- 
ing the  assignment  of  retired  naval  officers  to 
active  duty,  the  Secretary  of  the  Naw  is  not 
authorized  to  assign  a  retired  officer  to  duty  as 
chief  of  a  bureau  in  the  Navy  Department  in 
case  of  a  vacancy,  when  the  officer  is  below  the 
required  grade  as  fixed  by  sections  421-426, 
Revised  Statutes.    (28  Op.  Atty.  Gen.,  489.) 


As  to  effect  of  retirement  upon  status  of  officer 
serving  as  chief  of  bureau,  see  below  under  "VI. 
Retirement  of  Chiefs  of  Bureaus." 

Temporary  vacancies. — A  naval  officer 
assigned  to  duty  as  an  assistant  to  the  chief  of  a 
bureau  in  the  Navy  Department  is  not  author- 
ized by  section  178,  Revised  Statutes,  in  case 
of  the  death,  resignation,  absence,  or  sickness 
of  the  incumbent,  to  perform  the  duties  of  such 
chief  until  a  successor  is  appointed  or  tlie 
absence  or  sickness  shall  cease,  unless  the  ap- 
pointment of  .such  assistant  is  specifically  pro- 
vided for  by  statute.  In  determining  who  is  to 
act  in  the  place  of  a  chief  of  bureau  during  his 
absence,  section  178,  Revised  Statutes,  is  to  be 
read  in  connection  with  the  laws  which  make 
provision  for  the  appointment  of  officers  in  the 
bureaus  of  the  Navy  Department.  Where  the 
highest  officer  recognized  by  statute  after  the 
cliief  of  the  bureau  is  the  chief  clerk  in  such 
bureau,  the  latter  succeeds  to  the  duties  of  the 
chief  during  a  temporary  absence  unless  other- 
wise directed  by  the  President  in  accordance 
wT.th  section  179,  Revised  Statutes.  (19  Op. 
Atty.  Gen.,  503.) 

Officers  who  hold  commissions  in  the  naval 
service  issued  by  the  President,  by  and  with 
the  ad\dce  and  consent  of  the  Senate,  but  do 
not  hold  any  office  in  the  Na\'y  Department  or 
in  a  bureau  by  such  appointment  of  the  Presi- 
dent after  confirmation  by  the  Senate,  can  not 
be  legally  designated  by  the  President  to  act  as 
cliiefs  of  biu-eaus,  under  section  179,  Re\ised 
Statutes,  in  the  absence  of  the  incumbents. 
Accordingly,  an  officer  of  the  Navy  detailed  as 
assistant  to  the  chief  of  a  bureau  in  the  Navy 
Department,  but  whose  appointment  as  such 
assistant  is  not  specifically  provided  for  by 
statute,  is  not  eUgible  for  designation  by  the 
President,  under  section  179,  Revised  Statutes, 
to  act  as  chief  of  bureau  in  the  latter's  al)sence. 
There  is  no  more  authority  to  authorize  such  an 
officer  to  perform  the  duties  of  the  vacant  office 
than  there  is  to  authorize  any  officer  of  the 
Navy  not  connected  directly  \vith  the  business 
of  the  department.     (28  Op.  Atty.  Gen.,  95.) 

During  a  vacancy  in  the  office  of  chief  of  a 
bureau  in  the  Navy  Department,  the  Secretary 
or  Acting  Secretary  of  the  Navy  may  sign  mail 
requiring  the  signature  of  the  chief  of  bureau. 
(File  22724-7f,  May  14,  1909;  see  also  28  Op. 
Atty.  Gen.,  487,  noted  under  sec.  179,  R.  S.; 
compare  Williams  Eng.  and  Cont.  Co.  v.  U.  S., 
55Ct.  Cls.,  349.) 

A  vacancy  caused  by  the  retirement  of  the 
chief  of  a  bureau  in  the  Navy  Department  can 
not  be  temporarily  filled  by  the  President 
under  sections  178-181,  Revised  Statutes.  (27 
Op.  Atty.  Gen.,  337.) 

For  other  cases,  see  notes  to  sections  177-182, 
RoA-ised  Statutes. 

II.  Term  of  Office. 

Commencement  of  term. — The  four-year 
term  of  office  of  a  chief  of  bureau  commences  on 
the  date  of  his  confirmation  by  the  Senate. 
(10  Comp.  Dec,  56.) 

"TMiere  a  new  commission  is  accepted,  it 
supersedes  the  old  one;  and  the  four  years  pre- 
scribed by  law  as  the  official  term  of  the  ap- 
pointee must  commence  to  run  from  its  date." 


364 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  421. 


(2  Op.  Atty.  Gen.,  333.  This  related  to  the 
appointment  of  a  Navy  agent,  wMchwas  for 
the  term  of  four  years  under  laws  then  in  force, 
the  same  as  chiefs  of  bureau.) 

The  law,  of  course,  controls  special  language 
in  the  nomination  and  confirmation.  Section 
421,  Revised  Statutes,  makes  the  term  of  a  chief 
of  bureau  four  years  from  the  appointment  with 
the  consent  of  the  Senate.  The  term  during 
which  he  served  under  a  temporary  appoint- 
ment was,  by  law,  a  different  term  from  that 
which  commenced  when  he  was  appointed  with 
the  consent  of  the  Senate.  Accordingly,  where 
an  officer  was  commissioned  as  chief  construc- 
tor in  April,  1878,  after  confirmation  by  the 
Senate,  "from  April  28,  1877,"  having  pre- 
viously served  under  a  recess  appointment,  held 
that  notwithstanding  the  special  wording  of  the 
nomination  and  the  confirmation  by  the  Senate, 
the  term  of  office  of  the  appointee  as  prescribed 
by  section  421,  Re\'ised  Statutes,  must  be 
deemed  to  begin  from  the  date  of  his  appoint- 
ment, namely,  in  April,  1878,  and  not  from 
"April  28,  1877,"  the  date  specified  in  the 
nomination.     (16  Op.  Atty.  Gen.,  656.) 

"The  fiction  famiUar  to  lawy-ers  under  the 
phrase  nunc  pro  tunc  [now  for  then]  has  no 
application  in  cases  of  appointments  to  office. 
Such  executive  action  cannot,  in  the  nature  of 
things,  operate  by  relation.  Especially  must 
that  be  so  where,  as  here,  the  office  during  one 
portion  of  the  very  time  to  which  the  regular 
appointment  and  commission  are  made  to  re- 
late had  been  occupied  by  the  appointee  under 
another  competent  appointment  and  commis- 
sion, and  during  a  second  portion  had  been 
occupied  by  others  in  due  course  of  law."  (16 
Op.  Atty.  Gen.,  656.) 

Nominations  to  take  effect  from  past  dates 
are  familiar  in  the  naval  service,  but  these  are 
made  under  statutes  relating  to  promotions,  to 
fill  vacancies  occurring  in  due  course,  which  are 
not  apphcable  to  the  appointment  of  an  officer 
as  chief  of  bureau.     (File  21-5,  Dec.  11,  1907.) 

Where  a  chief  of  bureau  retired  while  serving 
under  an  ad  interim  commission,  held  that,  if 
8uch  retirement  rendered  him  ineligible  for 
regular  appointment  by  and  with  the  advice 
and  consent  of  the  Senate  [as  to  which  point  see 
cases  noted  above],  the  difiiculty  could  not  be 
overcome  by  wording  the  nomination  to  take 
effect  from  a  prior  date  when  he  was  on  the 
active  list  and  when  his  ad  interim  commission 
as  chief  of  bureau  took  effect.  (File  21-5,  Dec. 
11,  1907.) 

Expiration  of  term. — "The  chief  of  a 
bureau  in  the  Na\^  Department  can  not  law- 
fully hold  over  after  the  expiration  of  the  term 
for  which  he  was  appointed.  The  general  rule 
is  that  where  Congress  has  not  authorized  the 
officer  to  hold  over,  his  incumbency  must  be 
deemed  to  cease  at  the  end  of  his  term,  though 
no  appointment  of  a  successor  may  then  be 
made."  (17  Op.  Atty.  Gen.,  648;  see  also 
Romero  v.  U.  S.^  24  Ct.  Cls.,  331.) 

There  is  nothing  in  section  421  nor  in  any 
other  of  which  I  am  aware  which  confers  au- 
thority upon  the  incumbent  of  the  office  of 
chief  of  bureau  to  continue  therein  after  the 
expiration  of  his  term;  and  I  am  of  opinion 
that  in  the  absence  of  a  statutory  provision  con- 
ferring it,  such  authority  does  not  exist.     Con- 


gress has  in  terms  provided  that  certain  officers 
whose  appointments  are  for  a  definite  term  shall 
hold  until  their  successors  are  appointed  and 
qualified  (see,  for  example,  sees,  1841,1843, 1875, 
and  1876,  R.  S.,  concerning  certain  appoint- 
ments in  Tenitories);  from  which  it  is  plainly 
to  be  inferred  that  officers  not  thus  authorized 
can  not  lawfully  hold  over:  "Expressio  uniua 
est  exclusio  alterius" — -the  expression  of  one 
thing  is  the  exclusion  of  another.  (17  Op. 
Atty.  Gen.,  648,  citing  U.  S.  v.  Eckford's  Ex- 
ecutors, 1  How.,  250,  and  14  Op.  Atty.  Gen., 
262,  263.) 

Chiefs  of  bureaus  in  the  Navy  Department 
do  not  hold  over  after  expiration  of  the  term  of 
office  for  which  they  were  appointed.  In  the 
draft  of  a  proposed  new  revision  of  the  statutes, 
the  revisers  added  to  section  421  the  provision, 
"or  until  their  successors  are  appointed  and 
qualified,"  explaining  that  this  addition  was 
made  in  view  of  the  opinion  of  the  Attorney  Gen- 
eral above  cited ;  but  of  course  these  words  are 
not  yet  incorporated  into  the  statute.  Accord- 
ingly, where  the  term  of  the  chief  of  a  bureau 
in  the  Navy  Department  expires  while  the 
Senate  is  not  in  session,  a  recess  commission 
should  appropriately  be  issued,  filling  the 
vacancy  thus  created.  (File  21-3,  Nov.  13, 
1907,  Opinion  of  Solicitor.  As  to  inherent 
power  of  President  to  fill  temporary  vacancies, 
see  notes  to  sees.  177  and  181,  R.  S.) 

Removal  by  President. — The  President 
has  the  power,  without  the  concurrence  of  the 
Senate,  to  remove  an  officer  (United  States 
attorney)  who  was  appointed  for  a  fixed  term, 
prior  to  the  expiration  of  such  term.  (Parsons 
V.  U.  S.,  167  U.  S.,  324;  for  other  cases,  see  note 
to  Constitution,  Art.  II,  sec.  2,  clause  2.) 

As  to  trial  by  court-martial,  see  below,  "III. 
Status  of  Chiefs  of  Bureaus. ' ' 

III.  Status  of  Chiefs  op  Bureaus. 

Not  civil  offices.^ — It  is  very  clear  that  the 
office  of  Secretary  of  the  Navy  is  a  civil  office. 
Congi-ess  has  not  attempted  to  confine  the  ap- 
pointing power  to  any  class  or  profession  m 
choosing  the  incumbent  for  that  position.  But 
this  can  not  be  said  of  the  several  bureaus  of  the 
Navy  Department,  the  chiefs  of  which  must  be 
appointed  from  certain  classes  of  officers  of  the 
Navy.  Wlien,  therefore,  it  is  said  that  these 
offices  are  civil,  it  must  be  shown  satisfactorily 
why  it  was  that  Congress  denied  the  appointing 
power  the  same  range  of  selection  in  filling 
them  as  in  filling  the  office  of  Secretary  of  the 
Navy  and  civil  offices  generally.  _  It  is  quite 
clear  to  me  that  if  Congress  had  intended  to 
make  the  several  bureaus  of  the  Navy  Depart- 
ment civil  offices,  it  would  have  provided  for 
the  appointment  of  civilians  to  fill  them,  and 
not  frustrated  its  purpose  to  secure  the  benefits 
of  a  civil  administration  by  declaring  that  these 
offices  should  be  filled  by  naval  officers  exclu- 
sively.    (18  Op.  Atty.  Gen.,  176.) 

Rank,  title,  pay,  and  retirement  are  the 
indicia  of  military,  not  civil,  officers.  No 
statute  directly  or  indirectly  classes  these 
bureau  chiefs  as  civilians,  and  it  does  not 
appear  that  they  have  ever  been  so  regarded  in 
the  department.  Gi^dng  them  a  dual  charac- 
ter, civil  and  military,  might  not  only  lead  to 


365 


Sec.  421. 


Pt.2.  REVISED  STATUTES: 


Navy  Department. 


confusion  and  inconvenience  in  the  depart- 
ment, but  deprive  the  chiefs  themselves  of 
some  advantages  secured  to  tliem  bv  tlie  oppo- 
site practice.     (Smith  v.  U.  S.,  26  Ct.  Cls.,  143.) 

Trial  by  court-martial. — "Under  every 
system  of  niilitary  hvw,  for  the  government  of 
either  land  or  naval  forces,  the  jurisdiction  of 
courts-martial  extends  to  the  trial  and  punish- 
ment of  acts  of  military'  or  naval  ofticers  wliich 
tend  to  bring  disgrace  and  reproach  upon  the 
ser\dce  of  which  they  are  members,  whether 
those  acts  are  done  in  the  performance  of  mili- 
tary duties,  or  in  a  ci\'il  position,  or  in  a  social 
relation,  or  in  private  business."  (Smith  v. 
\Mutney,  116  U.  S.,  168,  183.) 

The  ('hief  of  the  Bureau  of  Medicine  and 
Surgery  in  the  Kavy  department  is  amenable 
to  the  jurisdiction  of  a  naval  court-martial  upon 
charges  and  specifications  preferred  against  him 
for  acts  done  as  such  chief.  (18  Op.  Attv.  Gen., 
176;  see  also  W  ales  v.  Whitney,  114  U.  S.,  564.) 

The  chief  of  a  bureau  (Paymaster  General), 
may  be  removed  from  that  oflice  by  Bentence  of 
court-martial.  (Smith  v.  U.  S.,  26  Ct.  Cls.,  143; 
see  also  Smith  v.  Whitney,  116  U.  S.,  181.) 

"As  to  the  case  of  staff  bureau  ofTicers  whose 
service  has  not  been  creditable  and  who  have 
been  guilty  of  misconduct  or  malfeasance  in 
office,  the  law  and  practice  provide  for  that 
case.  Such  an  officer  would  be  relieved  of  his 
duties,  or,  depending  upon  the  seriousness  of 
the  offense,  would  be  court-martialed.  And 
section  1446,  Revised  Statutes,  provides  that  no 
officer  of  the  Kavy  shall  be  placed  on  the 
retired  list  becauss  of  misconduct,  but  he  shall 
be  brought  to  trial  by  court-martial  for  such 
misconduct."    (25  Op.  Atty.  Gen.,  294,  298.) 

The  office  of  chief  of  bureau  is  a  military  one, 
to  the  extent  that  its  incumbent  is  amenable  to 
trial  by  court-martial.     (5  Comp.  Dec,  822.) 

The  Judge  Advocate  General  of  the  Army 
may  be  tried  by  court-martial  and  suspended 
from  rank  and  duty  pursuant  to  the  sentence 
of  such  court.  (Swaim  v.  U.  S.,  28  Ct.  Cls.,  173; 
165  U.  S.,  553;  see  also  note  to  sec.  179,  R.  S.) 

Dual  status  of  bureau  chiefs. — The  law 
requires  the  President  to  appoint  chiefs  of 
bureaus  in  the  Navy  Department  from  the  list 
of  'officers  in  the  Navy.  Compliance  with  this 
law  certainly  could  not  have  the  effect  to  with- 
draw the  appointed  officer  from  that  list,  or  to 
deprve  him  of  the  rank  or  pay  to  which  he  was 
or  might  become  entitled  by  law.  Such  a 
result  would  involve  injustice  too  gross  to  be 
imputed  to  Congress.  The  act  limited  the 
selection  to  naval  officers,  not  below  a  certain 
grade,  for  the  purpose  of  securing  at  the  head 
of  the  bureaus  named,  the  skill  and  experience 
ol  prolonged  service.  But  nothing  could  be 
more  unjust,  indeed,  more  absurd,  than  to  de- 
prive the  Navy  of  officers  who  possessed  these 
qualities,  by  transferring  them  to  positions 
which,  under  the  law,  they  could  hold  but  four 
years,  when,  if  not  reappointed,  tliey  would  be 
retired  from  the  public  service  altogether.  The 
law  has  no  such  operation.  It  simply  means 
that  the  officers  appointed  shall,  for  the  term 
specified,  be  assigned  to  these  positions,  and  it 
implies  no  withdrawal  from  the  list  of  officers, 
and  no  loss  of  rank  or  pay.  If  the  officer  so 
assigned  receive  less  pay  by  virtue  of  his  rank 
in  the  Navy  than  the  salary  provided  by  the 


law  for  the  chief  of  bureau,  he  is  entitled  to 
draw  the  latter  salary  in  lieu  of  his  pay.  But 
if  his  naval  pay  exceed  the  salary  of  the  office, 
he  is  not  bound  to  accept  the  latter  and  relin- 
quish the  former.  If  he  be  a  rear  admiral,  he 
is  entitled  to  the  pay  allotted  by  the  law  to  the 
class  of  service  he  renders.  (10  Op.  Atty.  Gen., 
377;  27  Op.  Attv.  Gen.,  337;  Op.  Attv.  Gen., 
Mar.  15,  1911,  file  22724-16:3.) 

The  appointment  by  the  President,  by  and 
with  the  advice  and  consent  of  the  Senate,  of  a 
naval  officer  to  be  Chief  of  tlie  Bureau  of  Na^•i- 
gation  is  an  investiture  of  him  with  an  addi- 
tional office.  Wliile  Chief  of  the  Bureau  of 
Navigation  he  remains  a  captain  in  the  NaAy. 
By  virtue  of  the  former  office,  his  orders  have 
the  force  and  effect  of  an  order  emanating  from 
the  Secretary  of  the  Navy,  and  while  he  con- 
tinues to  hold  said  office  he  has  the  higher  rank 
attached  thereto  by  law.  (17  Op.  Atty.  Gen., 
154;  see  also,  as  to  Chief  of  Bureau  of  Steam 
Engineering,  27  Op.  Atty.  Gen.,  340.) 

A  naval  officer  by  accepting  the  office  of  Cliief 
of  the  Bureau  of  Steam  Engineering  did  not 
vacate  the  office  and  grade  he  already  held  of 
captain.  His  appointment  as  chief  of  bureau 
invested  him  with  an  additional  office  and  an 
additional  rank.  His  status  "while  holding 
said  office"  was  that  of  an  officer  ot  the  line  of 
the  'Ka.Yj  of  the  grade  of  captain,  with  the  addi- 
tional rank  of  rear  admiral  and  the  additional 
office  of  Chief  of  the  Bureau  of  Steam  Engineer- 
ing. (15  Comp.  Dec,  860,  citing  17  Op.  Atty. 
Gen.,  154,  and  10  Op.  Atty.  Gen.,  378.) 

An  officer  appointed  to  be  chief  of  one  of  the 
Navy  bureaus  is  in  effect  detailed  to  perform 
shore  duty,  retaining  during  the  period  of  his 
incumbency  his  regular  rank  and  grade  on  the 
Na\-y  Register,  and  also  filling  the  post  of  chief 
of  bureau  with  the  rank  and  emoluments  inci- 
dental thereto.  (27  Op.  Atty.  Gen.,  337,  341, 
citing  10  Op.  Atty.  Gen.,  378,  379.) 

A  chief  of  bureau  in  the  Na\^  Department  is, 
therefore,  an  incumbent  of  two  offices.  First, 
he  is  an  officer  of  the  Na-\y  holding  in  this  case 
the  rank  of  captain;  second,  he  had  been  de- 
tailed by  the  President,  by  and  with  the  ad^dce 
and  consent  of  the  Senate,  to  hold  the  office  of 
chief  of  bureau,  with  the  rank  of  rear  admii-al 
for  a  period  of  four  years.  (27  Op.  Atty.  Gen., 
337,  341.) 

For  other  cases  see  below,  "TV.  Rank,  Titles, 
and  Precedence."  and  particularly  Opinion  of 
Attorney  General,  March  15,  1911  (file  22724- 
16:3)  noted  under  "Rank  of  chiefs  of  bureaus." 

Ofl&ce  of  chief  of  bureau  not  a  "grade" 
in  the  Navy. — While  the  office  of  chief  of 
bureau  is  a  military  one,  to  the  extent  that  its 
incumbent  is  amenable  to  trial  by  court-mar- 
tial, the  office  itself  does  not  constitute  a  grade 
in  the  Navy.  The  next  higher  "grade"  re- 
ferred to  in  section  11  of  the  Na^-y  personnel  act 
(i\Iar.  3, 1899,  30  Stat. ,  1007)  is  one  of  the  differ- 
ent gradations  in  the  line  of  the  Na^^  or  in  the 
several  staff  corps,  and  does  not  include  the  of- 
fice of  chief  of  bureau.     (5  Comp.  Dec,  822.) 

The  grade  to  which  an  officer  belongs,  under 
section  1457,  Revised  Statutes,  while  liolding 
the  office  of  Chief  of  the  Bureau  of  Navigation 
is  that  of  captain,  which  in  this  case  was  his 
regular  grade  in  the  line,  and  not  that  of  the 
rank  incidental  to  his  temporary  occupation  of 


366 


Navy  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  421. 


another  and  distinct  office.  For  it  is  by  virtue 
of  liis  office  of  captain,  and  not  of  chief  of  bu- 
reau, that  he  is  entitled  to  examination  for  pro- 
motion and  that  he  is  entitled  or  subject  to  re- 
tirement. It  may  be  further  remarked  that, 
within  the  language  of  section  1457,  he  "con- 
timies  to  be  borne  on  the  Navy  Register"  as 
captain,  and  that  the  moment  he  ceases  to  be 
chief  of  Ijureau  he  loses  his  temporary  rank  in- 
cident to  that  office.     (17  Op.  Atty.  Gen.,  154.) 

That  Congress  regards  the  grade  to  which  the 
bureau  chief  belongs  as  something  different 
from  the  position  of  chief  of  bureau  is  further 
evidenced  by  the  provisions  of  the  naval  appro- 
priation act  of  May  13, 1908  (35  Stat.,  128),  that 
"the  pay  and  allowances  of  chiefs  of  bureaus  in 
the  Na\'y  Department  shall  be  the  highest  pay 
of  the  grade  to  which  they  belong,  and  not  below 
that  of  rear  admiral  of  the  lower  nine."  (27 
Op.  Atty.  Gen.,  376,  383;  15  Comp.  Dec,  860.) 

As  I  have  lieretofore  pointed  out,  the  office  of 
chief  of  bureau  in  tlie  Navy  Department  is  not 
designated  in  the  acts  of  Congress  as  a  grade. 
On  the  contrary,  in  section  421  of  the  Bevised 
Statutes  it  is  called  an  "office,"  and  in  section 
1471  a  "position";  by  section  1471  the  Chief  of 
the  Bureau  of  Construction  and  Kepair  has  tlie 
"title"  of  Chief  Constructor.  Under  the  act  of 
March  3,  1899,  the  incumlient,  if  an  officer  be- 
low the  rank  of  rear  admiral,  has  that  "rank" 
while  holding  the  office.  The  office  of  Chief 
Constructor  was  not  formerly  a  grade  in  the 
Navy,  and  was  not  made  such  because  the  rank, 
title,  and  emoluments  of  the  incumbent,  there- 
tofore temporary,  were  made  permanent  1)y  the 
act  of  June  24,  1910  [now  repealed].  (28  Op. 
Atty.  Gen.,  526,  citing  27  Op.  Atty.  Gen.,  376, 
379.     See  also  file  5038-19,  Feb.  29,  1912.) 

Neither,  in  my  opinion,  was  the  honorary 
"rank  "  of  rear  admiral,  which  he  held  as  an  in- 
cident to  his  occupation  of  the  office  of  chief  of 
l)ureau,  a  "grade"  within  the  meaning  of  the 
act  of  June  7,  1900.  (31  Stat.,  703,  reenacted, 
with  modifications,  by  act  Aug.  22,  1912,  37 
Stat.,  329. )_  The  grade  from  which  he  was  re- 
tired ,  within  the  meaning  of  said  act,  was  there- 
fore tliat  of  captain.     (15  Comp.  Dec,  860.) 

Ofl3.ce  held  to  be  a  grade. — Section  1457, 
Ke^ised  Statutes,  which  occurs  in  a  chapter  of 
law  relating  to  retired  officers  of  the  Na^y  in 
general,  although  perhaps  especially  contem- 
plating the  line,  provides  that  officers  retired 
from  active  serAdce  shall  be  placed  on  the  re- 
tired list  of  officers  of  the  gixide  to  wliich  they 
belonged,  respectively,  at  the  time  of  their 
retirement,  and  continue  to  be  Itorne  on  the 
Navy  I  .egister.  Grade  here  appears  to  mean 
rank  in  the  line,  or  by  relation  to  the  line — 
using  rank  and  grade  interchangealily,  as  those 
words  sometimes  are  used ,  and  not  as  indicating 
an  officer's  number  in  a  particular  grade.  Sec- 
tion 1471  speaks  of  the  headship  of  a  bureau  as  a 
"position";  section  1472  as  an  office;  section 
1473  again  as  a  position;  and  the  Navy  Regula- 
tions, incorporating  the  statutes  and  adding  to 
thena  administrative  details,  use  both  terms. 
I  think,  however,  that  grade  may  include  such 
staff  office-i,  and  may  mean  in  an  untechnical 
sense  and  by  a  certain  equity,  the  liighest  post 
to  the  rank  and  title  of  which  an  officer  has  at- 
tained upon  his  retirement,  and  that  section 
1457  fairly  includes  the  office  or  position  of  Pay- 


master General.  (25  Op.  Atty.  Gen.,  294;  dis- 
approved, 27  Op.  Atty.  Gen.,  376.) 

By  the  use  of  the  word  "grade"  Congress 
intended  to  indicate  any  marked  distinction 
fixed  by  law  among  officers  which  would  be 
expressed  in  their  commission,  title,  or  pay, 
not  excluding  chiefs  of  bureaus  having  a  cer- 
tain rank.     (31  Op.  Atty.  Gen.,  505,  515.) 

For  other  cases,  see  below,  "VI.  Retirement 
of  Chiefs  of  Bureaus." 

IV.  Rank,  Titles,  and  Precedence. 

Rank  of  chiefs  of  bureaus. — The  Navy  per- 
sonnel act  of  March  3,  1899,  section  7  (30  Stat., 
1005),  provides  that  "when  the  office  of  chief 
of  bureau  is  filled  by  an  officer  below  the  rank 
of  rear-admiral,  said  officer  shall,  while  holding 
said  office,  have  the  rank  of  rear-admiral." 
Similar  provisions  were  previously  contained 
in  sections  1471  and  1472,  Revised  Statutes, 
except  that  the  rank  of  bureau  chiefs  was  there 
fixea  as  the  "relative  rank"  of  commodore 
instead  of  the  actual  rank  of  rear  admiral. 

By  act  of  July  1,  1918  (40  Stat.,  717),  chiefs 
of  bureaus  in  the  Navy  Department,  including 
the  Judge  Advocate  General,  shall  while  so 
serving  have  corresponding  rank  as  prescribed 
by  law  for  chiefs  of  bureaus  of  the  War  Depart- 
ment and  the  Judge  Advocate  General  of  the 
Army. 

Of  coiuse,  it  is  not  to  be  doubted  that  the 
advanced  rank  and  pay  attached  to  service  as 
a  bureau  chief  ceases  when  the  term  of  service 
is  over  and  other  active  service  resumed.  The 
former  relative  rank  pro  tempore,  the  present 
actual  rank,  are  only  while  holding  said  posi- 
tion; and  no  doubt  a  corollary  to  be  drawn 
from  this  is  that  the  title  falls  also  if  and  when 
an  officer  returns  fx'om  active  service  in  the 
bureau  to  active  service  in  his  corps.  (25  Op. 
Atty.  Gen.,  294;  other  portions  of  this  opinion 
were  disapproved  in  27  Op.  Atty.  Gen.,  376.) 

The  moment  an  officer  ceases  to  be  chief  of 
bureau  he  loses  his  temporary  rank  incident  to 
that  office.  _  (17  Op.  Atty.  Gen.,  1.54.) 

In  the  opinion  of  the  department,  where  the 
law  creates  an  office  with  a  fixed  term  and  con- 
fers upon  the  holder  of  that  office  a  certain  rani 
dming  his  occupancy  thereof,  the  rank  thus 
conferred  ends  for  all  purposes  and  in  all  re- 
spects with  the  term  of  the  office,  except  as 
otherwise  proAided  by  law.  When  the  terms 
of  office  held  by  the  chiefs  of  bureaus  to  wliich 
the  rank  of  rear  admiral  was  by  statute  annexed 
have  ended,  with  them  have  ended  the  accom- 
panying rank.  Without  a  new  appointment 
the  officers  holding  these  j)ositions  would  return 
to  their  respective  ranks  in  the  line  or  staff  of 
the  Navy,  and  their  ranks  there  would  be  af- 
fected in  no  way  by  the  fact  that  they  had,  as 
an  incident  of  service  in  the  bureaus,  tempo- 
rarily enjoyed  a  higher  rank.  All  the  force  and 
effect  of  their  commissions  as  chief  of  bureau 
have  been  expended  when  the  term  of  office 
ends,  and  unless  reappointed  they  would 
hold  only  effective  and  living  commissions  as 
officers  of  their  regular  grade  in  the  Navy. 
(File  4649--02,  July  17,  1902.) 

"In  the  course  of  my  investigation  it  has 
appeared  that  upon  the  appointment  of  Rear- 
Admiral  Taylor  on  the  29th  day  of  April,  1902, 


367 


Sec.  421. 


Pt.  2.  REVISED  STATUTES. 


Navy  Department. 


lis  chief  of  the  Bureau  of  Navigation,  a  com- 
mission was  issued  to  him  as  such  '  with  the  rank 
of  rear-admiral  from  the  2')th  dav  of  April  1902.' 
This  commission  was  erroni'ou.sly  expressed,  as 
the  provision  of  the  'Personnel  Act'  which 
gives  the  rank  of  rear-admiral  to  the  chiefs  of 
bureaus  while  holding  such  office  is  applicable 
only  in  case  the  'otfice  is  filled  by  an  officer 
below  the  rank  of  rear-admiral.'  As  at  the 
time  Rear-Admiral  Taylor  was  not  an  officer 
within  the  description  of  the  act,  it  had  no 
effect  upon  his  rank  and  his  commission  as 
chief  of  the  Bureau  of  Navigation  should  not 
have  attempted  to  confer  upon  him  a  rank 
which  he  already  possessed  independently  of 
the  statute."  (File  4G49-02  July  17,  1902;  see 
also  31  Op.  Atty.  Gen.,  557.) 

The  Navy  personnel  act  changed  the  rank  of 
chiefs  of  bureaus  from  the  "relative  rank  of 
commodore"  to  the  "rank  of  rear-admiral." 
New  commissions  were  issued  to  those  holding 
the  offices  of  chiefs  of  bureaus  at  the  time  of  the 
passage  of  this  act,  for  the  unexpired  portions 
of  the  terms  for  which  they  had  been  appointed, 
"with  the  raiik  of  rear-admiral."  It  may  well 
be  doubted  whether  these  commissions  were 
not  entirely  superfluous.  They  were  not  of 
such  character  as  to  amoimt  to  new  appoint- 
ments or  reappointments.  The  chiefs  of  bu- 
reaus were  already  appointed  to  their  positions 
for  a  period  of  four  years,  and  the  new  rank 
which  they  enjoyed  came  not  by  virtue  of  any 
new  appointment  or  commission  but  was 
annexed  to  their  office  by  statute  law.  (File 
464&-02,  July  17,  1902;  see  also  file  22724-33, 
Aug.  22,  191G;  22  Op.  Atty.  Gen.,  480.  As  to 
whether  officers  should  be  given  new  commis- 
sions when  merely  advanced  in  rank,  without 
change  in  office  or  grade,  see  note  to  Constitu- 
tion, Art.  II,  sec.  3.) 

An  officer  of  the  Na\^'^  or  Marine  Corps  serving 
as  Judge  Advocate  General  has  actual  rank  as 
a  captain  in  the  Navy  or  a  colonel  in  the  Marine 
Corps.  His  rank  while  he  holds  this  office  is 
not  an  assimilated  rank,  but  an  actual  rank. 
His  rank  is  a  fact,  not  a  courtesy.  (Remey  v. 
U.  R.,  33  Ct.  Cls.,  218;  8  Comp.  Dec,  895.) 

The  act  of  June  24,  1910  (36  Stat.,  607)  [re- 
peated by  act  Aug.  22,  1912  (37  Stat.,  328)], 
provided  that  "all  officers  of  the  NaAy  who  are 
now  serving  or  shall  hereafter  serve  as  chief  of 
bureau  in  the  Na^-y  De])artment,  and  are  eli- 
gible for  retirement  after  thirty  years  service, 
shall  have,  while  on  the  active  list,  the  rank, 
title  and  emolitments  of  a  chief  of  bureau,  in 
the  same  manner  as  is  already  pro\'iiled  by  stat- 
ute law  for  such  officers  upon  retirement  by 
reason  of  age  or  length  of  service,  and  such  offi- 
cers after  thirty  years  service  shall  be  entitled 
to  and  shall  receive  new  commissions  in  accord- 
ance with  the  rank  and  title  hereby  conferred." 
Under  this  law  a  naval  ofiicer  who  was  a  bureau 
chief  in  the  Na^y  Department,  and  who  attained 
30  years'  service,  thereby  becoming  eligi])le  for 
retirement,  was  entitled  to  retain  the  rank,  pay, 
and  emoluments  of  such  bureau  c:hief  on  the 
active  list  if  he  then  resigned  or  was  reIllo^  ed 
from  his  position  of  bureau  chief  and  returned 
to  general  service.  This  is  the  only  interpre- 
tation which  can  give  force  and  effect  to  ail  the 
language  used.  For  if  the  intention  had  been 
to  confer  this  "rank,  title,  and  emoluments  ' 


only  duruig  the  continuance  of  such  ofiicer  as 
chief  of  bureau,  this  ])royision  as  to  continu- 
ance would  have  been  (juite  unnecessary;  for 
the  rank,  title,  and  emoluments  would,  of 
course,  contuuie  unless  otherwise  pro%ided  by 
law  so  long  as  the  officer  continued  in  such 
office,  and  the  other  provisions  would  have 
meant  precisely  the  same  without  this  clause  as 
with  it.  The  only  possible  effect  of  that  clause 
is  to  continue,  as  it  i)lainly  does,  such  rank, 
title,  and  emoluments  (hiring  the  time  that  the 
officer  remains  on  the  active  list  of  the  Navy, 
whether  as  bureau  chief  or  otherwise.  (28  Op. 
Atty.  Gen.,  429;  quoted  in  28  Op.  Atty.  Gen., 
529;  and  Op.  Atty.  Gen.,  Mar.  15,  1911,  file 
22724-16:3.)  [The  oflicers  who  received  per- 
manent commissions  under  tliis  act  prior  to  its 
repeal  and  wlio  were  not  affected  by  such 
repeal  were  Rear  Admiral  R.  F.  Nicholson, 
chief  of  the  Bureau  of  Navigation,  (  hief  (  on- 
structor  ^\"ashington  L.  C  apps.  Paymaster  Gen- 
eral Eustace  B.  Rogers  (I-ile  22724-18),  and 
Paymaster  General  Thomas  J.  Cowie.] 

\\here  the  ofiicer  was  ser^dng  as  chief  of  bu- 
reau on  June  24,  1910,  and  then  had  30  years' 
service,  he  is  entitled  to  a  permanent  commis- 
sion from  the  date  of  the  act.  (Op.  Atty.  Gen., 
Mar.  15,  1911,  file  22724-16:3.) 

A  rear  admiral  of  the  senior  nine,  serving  as 
chief  of  the  Biu-eau  of  Ordnance,  should  not  be 
given  another  commission  imder  the  act  of 
June  24,  1910,  as  he  already  had  the  permanent 
rank  of  rear  admiral,  and  that  act  did  not,  there- 
fore, confer  any  rank  upon  him.  Also,  the  law 
should  not  be  construed  so  as  to  require  the 
doing  of  a  futile  or  useless  thing.  (Op.  Atty. 
Gen.,  Mar.  15,  1911,  file  22724-16:3). 

The  chief  of  the  Bureau  of  Supplies  and  Ac- 
counts, upon  completion  of  30  years'  service,  is 
entitled  under  the  act  of  June  24, 1910,  to  a  per- 
manent commission  with  the  rank  of  rear  admi- 
ral, and  not  commodore.  (Op.  Atty.  Gen., 
Mar.  15,  1911,  file  22724-16:3.) 

Where  an  officer  was  serving  as  chief  of  bu- 
reau on  June  24,  1910,  and  then  had  30  years' 
service,  he  is  entitled  to  a  permanent  commis- 
sion from  the  date  of  the  act,  although  before 
such  commission  was  issued  he  was  retired. 
Under  these  circumstances  a  commission  under 
the  act  of  June  24,  1910,  may  be  issued  nunc  pro 
tunc,  and  confirmation  by  the  Senate  is  not  re- 
quired. (File  22724-18,  Dec.  4,  6,  1911,  and 
Jan.  3,  1912.) 

The  purpose  of  the  act  of  1910  qiute  clearly 
was  to  extend  to  chiefs  of  bureaus  becoming 
eligible  for  retirement  the  same  privileges  as 
under  the  prior  law  they  could  claim  upon  ac- 
tual retirement.  This  affords  an  adequate 
motive  for  and  explanation  of  the  new  legisla- 
tion ;  and  it  serves  to  show  at  once  that  the  act 
of  1910  had  a  logical  and  important  purpose. 
(28  Op.  Atty.  Gen.,  531.) 

The  sole  ])urpose  of  the  act  of  June  24,  1910, 
was  to  make  permanent  the  rank,  titl3,  and 
emoluments  of  an  ofiicer  serving  as  chief  of 
bureau,  who  had  become  eUgible  for  retirement 
by  reason  of  age  or  length  of  service,  but  who 
preferred  to  remain  on  the  active  list.  Accord- 
ingly, the  passage  of  said  act  and  the  issuing  of 
a  permanent  commission  thereunder  to  the  Chief 
Constructor,  did  not  operate  to  create  a  new 
grade  in  the  Construction  Corps.    No  vacancy 


368 


Navy  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.    421. 


was  created  thereby  in  the  grade  of  naval  con- 
structor nor  in  the  total  number  of  naval  con- 
structors and  assistant  naval  constructors  pro- 
vided by  law.  Since  the  office  of  cliief  of 
bureau  was  not  a  graile  prior  to  the  time  the 
incumbent  became  eligible  to  retirement  after 
30  years'  service,  it  would  seem  necessarily  to 
follow  that  the  mere  issuance  of  another  com- 
mission "in  accordance  with  the  rank  and 
title"  theretofore  conferred,  and  the  making 
permanent  of  such  theretofore  temporary  rank, 
title,  and  emoluments,  would  not  have  the 
effect  of  making  it  a  grade.  To  hold  otherwise 
would  operate  to  increase  to  that  extent  the 
Naval  Establishment,  although  there  is  no  in- 
dication of  such  an  intention  on  the  part  of 
Congress  in  the  language  of  the  statute.  (28 
Op.  Atty.  Gen.,  526;  followe  I  in  case  of  line 
ofhcer  serving  as  Chief  of  the  Bureau  of  Naviga- 
tion, Op.  Atty.  Gen.,  Mar.  15,  1911,  file  22724- 
16:3.) 

A  line  officer  serving  as  Chief  of  the  Bureau  of 
Navigation  continues  in  his  regalar  grade,  that 
of  captain,  notwithstanding  the  issuance  to  him 
of  a  permanent  commission  with  the  rank  of 
rear  admiral  in  accordance  vA\h  the  act  of  June 
24,  1910.  Accordingly,  when  he  is  reached  in 
regular  course  for  promotion  to  the  grade  of  rear 
admiral,  he  must  qualify  physically  and  pro- 
fessionally prior  to  such  promotion.  (Op.  Atty. 
Gen.,  Mar.  15, 1911,  file  22724-16:3.) 

The  only  way  to  give  effect  to  the  law  of 
June  24,  1910,  as  construed  by  the  Attorney 
General,  is  to  hold  that  its  result  was  to  make 
permanent  the  dual  status  formerly  occupied 
temporarily  by  the  officer  serA'ing  as  (  hief  Con- 
structor at  the  head  of  the  Bureau  of  (  onstruc- 
tion  and  Repair.  Accordingly,  held  that  such 
oflicer  continue«l  to  hold  his  regular  place  in 
the  grade  of  naval  constructor,  although  at  the 
same  time  enjoying  the  rank,  title,  and  emol- 
uments of  Chief  (  onstructor  under  a  permanent 
commission.     (File  5038-19,  Feb.  29,  1912.) 

Titles  of  chiefs  of  bureaus. — Unless  the 
numerous  laws  which  have  established  the  offi- 
ces of  the  service  or  subsequently  affected  them, 
positively  affix  or  altogether  prohibit  the  titles 
which  it  is  claimed  or  suggested  should  be  used 
by  chiefs  of  bureaus,  the  matter  is  subject  to 
the  administrative  settlement  of  the  Secretary 
of  the  Navy,  and  does  not  involve  legal  ques- 
tions upon  which  the  Attorney  General  may 
render  an  opinion.  That  is  to  say,  the  only 
proper  inquiry  for  the  Attorney  General  is 
whether,  and  how  far,  a  rule  has  been  laid  down 
by  the  statutes  which  restrains  the  disposition 
of  the  subject  by  Executive  order  or  depart- 
ment regulation  and  usage.  (25  Op.  Atty.  Gen., 
122.) 

Section  1471,  Revised  Statutes,  as  amended, 
provides  that  the  Chiefs  of  the  Bureau  of 
Medicine  and  Surgery,  SuppUes  and  Ac- 
counts, Steam  Engineering  [now  P^ngineering], 
and  Construction  and  Repair,  "shall  have, 
respectively,  the  title  of  Surgeon-General, 
Paymaster-General,  Engineer-in- Chief,  and 
Chief  Constructor."  The  titles  thus  fixed  by 
statute  were  not  affected  by  the  Navy  per- 
sonnel act  of  March  3,  1899  (30  Stat.,  1005), 
providing  that  "when  the  office  of  chief  of 
bureau  is  filled  by  an  officer  below  the  rank 
of  rear-admiral,  said  officer  shall,  while  hold- 


ing said  office,  have  the  rank  of  rear-admi- 
ral," for  the  same  act  provided  that  it  should 
not  be  construed  "as  changing  the  titles  of  offi- 
cers in  the  staff  corps  of  the  Navy."  The  bu- 
reaus named  in  section  1471  are  the  staff  bureaus 
of  the  Navy,  under  the  existing  organization, 
excepting  that  the  Engineer  Corps  (steam  engi- 
neenng)  has  now  been  transferred  to  the  line 
by  the  personnel  act  of  1899.  Accordingly, 
held  that  the  titles  of  the  existing  staff  bureaus 
are  positively  fixed  by  section  1471,  Re\d8ed 
Statutes,  and  are  unchanged  by  the  later  legis- 
lation of  March  3,  1899.  (25  Op.  Atty.  Gen., 
122.  See  note  to  sec.  422,  R.  S.,  as  to  "  line  " 
and  "staff"  bureaus  as  now  existing.) 

"Nor  is  it  necessary  to  discuss  and  consider 
the  distinctions  between  'rank,'  'grade,'  and 
'title,'  which  are  different  aspects  or  attributes 
of  office.  It  is  sufficient  to  say  that  the  terms 
bespeak  relations  and  functions  of  the  thing, 
and  are  not  to  be  confounded ;  and  that  a  statute 
which  confers  upon  an  officer  the  rank  and  pay 
of  another  grade  does  not,  also,  necessarily  con- 
fer the  title."     (25  Op.  Atty.  Gen.,  122,  123.) 

Respecting  bureaus  \\hich,  though  aiding  in 
central  administration,  are  not  technically  of 
the  staff,  and  respecting  line  officers  serving  as 
chiefs  of  those  bureaus,  and  respecting  the 
special  case  of  the  Judge  Advocate  General,  in 
all  these  cases  the  law  lays  down  no  explicit 
rule  relative  to  titles,  and  hence  in  those  situ- 
ations and  aspects  the  subject  may  and  should 
be  disposed  of  by  Executive  order,  or  Navy 
regulations  and  u-sage,  paying  due  regard  to' 
such  logical  inferences  or  uecessaiy  effect  re- 
specting staff  t'.tles  in  general  as  the  Secretary 
of  the  Navy  may  deem  to  be  derivable  from  the 
statutes.  (25  Op.  Atty.  Gen.,  122;  affirmed  25 
Op.  Atty.  Gen.,  294.) 

"The  post  of  Paymaster-General  is  an  office 
known  immemorially  in  the  military  service, 
with  as  definite,  if  not  as  technical,  status  as 
regards  rank,  grade,  and  title  as  any  office  of  the 
line.  'Paymaster-General  of  the  forces,'  is  a 
historical  phrase,  applied  either  to  land  or  sea 
forces,  not  restricted  to  a  particular  force  in  the 
field  or  at  sea,  and  not  to  be  narrowed  to  the 
conception  of  a  mere  detail  in  administration, 
so  as  to  strip  the  name  of  a  certain  independent 
rank  and  dignity  as  a  definite  office."  (25  Op. 
Atty.  Gen.,  294,  295.) 

"It  seems  certain  that  military  usage  uni- 
versally recognizes  that  the  highest  legal  rank 
which  an  officer  attains  marks  the  title  accorded 
to  him  in  practice  for  all  purposes  of  courtesy 
and  etiquette."     (25  Op.  Atty.  Gen.,  294,  295.) 

The  head  of  a  department  for  his  own  purposes 
as  such  has  authority  to  designate  bureaus  and 
offices  therein  and  to  cause  his  subordinates  to 
designate  them  in  official  communications  by 
names  other  than  those  theretofore  borne  by 
such  offices.  There  is  no  statute  or  rule  of  law 
which  forbids  the  employment  of  certain  names 
in  such  cases,  where  the  head  of  the  depart- 
ment considers  that  new  relations  acquired  by 
such  branches  of  business  under  a  reorganiza- 
tion of  hisdepartment  so  requires.  Congress  has 
not  seen  fit  to  so  hamper  a  coordinate  branch  of 
the  Government.  Its  own  use  of  names  is  not 
such  a  prohibition.  There  is  no  legal  objection 
to  the  employment  of  two  names  or  many  names 
for  the  same  object  nor  will  it  be  "inconsistent 


369 


Sec.  421. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


with  law  '■  for  the  head  of  the  department  under 
section  IGl,  Revised  Statutes,  to  make  use  of 
other  names  than  those  used  by  ("ongress. 
Names  are  ordinarily  free  for  the  person  speak- 
ing or  writing  to  choose.  (24  Op.  Atty.  Gen., 
697). 

"The  chiefs  of  the  Bureaus  of  Medicine  and 
Surgery,  Sujjplies  and  Accounts,  Engineering, 
Construction  and  Repair,  and  Yards  and  Docks, 
while  holding  these  oliices,  shall  have,  respec- 
tively, the  title  of  Surgeon  General  of  the 
Navy,  Paymaster  General  of  the  Navy,  En- 
gineer in  Chief  of  the  Navy,  Chief  Constructor 
of  the  Navy,  and  Chief  of  Civil  Engineers 
of  the  Navy.  Each  such  chief  of  bureau, 
however,  shall  be  addressed  and  designated  by 
the  title  of  his  rank,  in  written  communi- 
cations the  title  of  his  ofhce  to  be  stated  next 
after  his  name. ' '  (Art.  152,  Navy  Regs. ,  1920 ; 
see  also  Art.  R.-1006  (2)  Navy  Regs.  1913,  as 
amended  by  C.  N.  R.  12,  Sept.  12,  1918.) 

See  section  1471,  Revised  Statutes,  and 
note  thereto. 

Precedence  of  chiefs  of  bureaus. — Chiefs 
of  bureaus  sliould  sign  papers,  where  joint  signa- 
tures are  necessary',  in  order  of  their  seniority  in 
the  service,  and  not  in  order  of  the  seniority  of 
bureaus.  _  "While  the  question  is,  perhaps,  not 
of  grave  importance,  the  department  considers 
tliat,  since  it  has  been  raisetl,  it  must  be  held 
that  the  rule  universally  governing  in  military 
organizations,  that  papers  should  be  signed  in 
order  of  rank,  must  prevail."  (File  6417,  Feb. 
18,  1907,  re  precedence  of  Chiefs  of  Bureaus  of 
Construction  and  Repair,  and  Steam  Engineer- 
ing-.> 

The  precedence  of  a  chief  of  bureau  is  deter- 
mined by  the  date  of  the  existing  commission 
which  confers  upon  him  the  rank  of  rear  admiral 
and  is  not  at  all  ai'lected  by  the  date  he  first  at- 
tained the  rank  of  rear  admiral  under  previous 
appointments  as  chief  of  bureau.  The  effect  of 
reappointment  is  not  to  continue  the  former 
term,  but  to  create  a  new  one.  (File  4649-02, 
July  17,  1902.) 

Where  a  naval  officer  with  the  rank  of  rear  ad- 
miral is  commissioned  as  chief  of  bureau,  his 
precedence  is  determined  by  the  date  of  his 
commission  as  rear  admiral  and  not  by  the  date 
of  his  subsequent  commission  as  chief  of  bureau. 
The  latter  commission  did  not  confer  upon  him 
the  rank  of  rear  admiral  which  he  already  held, 
as  under  the  statute  it  is  only  "when  the  office 
of  chief  of  bureau  is  filled  by  an  officer  below  the 
rank  of  rear  admiral,"'  that  his  commission  as 
chief  of  bureau  confers  upon  him  the  rank  of 
rear  admiral  "while  holding  said  office." 
(File  4649-02,  July  17,  1902.) 

Where  the  Chief  of  the  Bureau  of  Navigation 
was  commissioned  as  such  ou  April  29, 1902,  but 
had  previously  been  co;umi.ssioned  as  rear 
admiral  in  the  line  in  the  ordinary  course  of 
promotion  on  February  11,  1901,  by  virtue  of 
the  latter  commission  he  takes  precedence  of 
the  Chief  of  the  Bureau  of  Equipment  [now 
abolished],  whose  commission  as  such  is  dated 
December  18,  1901,  notwithstanding  that  the 
latter  had  pre\'iously  served  as  cliief  of  bureau 
■with  the  rank  of  rear  admiral  under  commissions 
dated  August  19,  1899,  and  December  1,  1899, 
the  first  being  an  ad  interim  commission.  If  the 
two  officers  concerned  were  requested  to  pro- 


duce the  commissions  by  which  they  claim  and 
holdtherankof  rearadmiral,  one  would  produce 
his  commis.sion  dated  February  11,  1901,  as  rear 
admiral  in  the  line,  and  the  other  would  produce 
his  e.\.iBting  commission  as  chief  of  bureau  dated 
December  18,  1901.  Without  the  commission 
of  December  18,  1901,  the  latter  officer  would 
hold  only  an  effective  and  living  commission  as 
captain  in  the  line,  all  the  force  and  effect  of  his 
former  commissions  as  chief  of  bureau  having 
been  expended.     (File  4649-02,  July  17,  1902.) 

Section  1467  of  the  Revised  Statutes  provides 
that  "  line  officers  shall  take  rank  in  each  grade 
according  to  the  dates  of  their  commissions." 
Whether  this  section  of  the  statute  applies  to  a 
case  where  one  line  officer  holds  a  commission 
as  rear  admiral  I  y  virtue  of  promotion  in  the 
ordinary  course,  and  another  line  officer  has  the 
rank  of  rear  admiral  by  virtue  of  his  position  as 
cliief  of  bureau,  may  not  be  entirely  clear. 
Nevertheless  it  states  the  rule  of  priority  which 
must,  by  m-litary  usage  and  apart  from  statute 
law,  )  e  applied  to  officers  having  rank  in  the 
same  grade  in  the  Navy.  (File  4649-02,  July 
17,  1902.) 

The  personnel  act  of  March  3,  1899,  changed 
the  rank  of  chiefs  of  bureaus  from  commodore 
to  rear  admiral.  Accordingly,  commissions 
were  issued  to  those  holding  the  offices  of  chiefs 
of  bureaus  at  the  time  of  the  passiige  of  the  per- 
sonnel act  for  the  unexpired  portions  of  the 
terms  for  which  they  had  been  appointed, 
"with  the  rank  of  reai'-admiral."  These  com- 
missions "were  not  of  such  character  as  to 
amount  to  new  appointments  or  reappoint- 
ments," as  the  chiefs  of  bureaus  were  already 
appointed  to  their  positions  for  a  period  of  four 
years,  and  the  new  rank  which  they  enjoyed 
came  not  by  virtue  of  any  new  appointment  or 
commission,  Lut  was  annexed  to  their  office  by 
statute  law.  It  may  well  be  dou")ted  whether 
the  new  commissions  were  not  entirely  super- 
fluous. Held,  that  these  commissions  for  the 
unexpired  portions  of  the  terms  of  office  to 
which  chiefs  of  l)ureaus  had  been  respectively 
previously  appointed  did  not  affect  their  rela- 
tive rank  and  precedence.  (File  4649-02,  July 
17,  1902.) 

Assuming,  without  deciding,  that  General 
Order  544,  constituting  the  General  Board,  des- 
ignating the  Chief  of  the  Bureau  of  Navigation 
as  the  second  member  thereof,  and  providing 
that  "in  the  a'  sence  of  the  Admiral  of  the  Navy 
the  chief  of  the  Bureau  of  Navigation  will  pre- 
side at  meetings  of  the  Board  and  exercise  the 
functions  of  President  of  the  Board,"  does  not 
affect  the  order  of  precedence  established  by 
law,  nevertheless  held  that  the  Chief  of  the  Bu- 
reau of  Navigation  takes  precedence,  l)y  virtue 
of  his  commission  as  a  rear  admiral  in  the  line, 
ahead  of  the  chief  of  another  l)ureau  whose  rank 
in  the  line  is  captain  and  whose  commission  as 
chief  of  1  >ureau  is  later  in  date  than  the  commis- 
sion of  the  Chief  of  the  Bureau  of  Navigation  as 
rear  admiral  in  the  line.  (File  4649-02,  July  17, 
1902,  afiu-ming  decision  of  the  Admiral  of  the 
Navy  as  to  seating  of  members  of  the  General 
Board.) 

In  the  absence  of  the  Secretary  of  the  Navy, 
the  Assistant  Secretary  of  the  Navy,  and  the 
Chief  of  Naval  Operations,  the  duties  of  the 
Secretary  of  the  Navy,  by  airection  of  the  Presi- 


370 


Navy  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  421. 


dent,  are  to  be  performed  l)y  the  following  des- 
ignated chiefs  of  lureaus,  in  the  order  named: 
The  Chief  of  the  Bureau  of  Navigation;  in  his 
absence,  the  (  hief  of  the  Bureau  of  Ordnance; 
and  in  the  absence  of  those  two,  the  Chief  of  the 
Bureau  of  Engineering.  (File  1159-765,  Bu. 
Nav.;  Navy  Reg.,  1920,  art.  392,  as  amended; 
see  also  file  22724^0,  Apr.  24,  J  919,  and  see 
note  to  sec.  415,  R.  S.,  under  "Secretary  of 
Navy.") 

A  Paymaster  General  in  the  Navy  having  the 
permanent  rank,  title,  and  emoluments  of  a 
chief  of  1  ureau  1  y  virtue  of  the  act  of  June  24, 
1910  (36  Stat.,  607— now  repealed),  although  his 
term  of  oUice  as  i. ureau  chief  has  expired,  does 
not,  while  serving  as  member  of  a  general  court- 
martial,  take  precedence  of  line  officers  whose 
commissions  as  rear  admiral  are  of  a  later  date 
than  his,  1  ut  whose  length  of  service  in  the 
Navy  exceeds  his  total  length  of  actual  and  con- 
structive service.  Precedence  in  such  case  is 
determined  by  length  of  service,  under  sections 
1485,  1486,  Revised  Statutes,  and  not  by  date  of 
commission.  (File  28025-385:5,  Oct.  30,  1915, 
overruled  by  file  22724-40,  Apr.  24,  1919,  con- 
struing act  of  Aug.  29,  1916  (39  Stat.,  578), 
under  which  it  is  held  that  all  officers,  line 
and  staff,  take  precedence  by  date  of  com- 
mission. Compare  32  Op.  Atty.  Gen.,  476, 
file  11130-63:8,  noted  under  sec.  1485,  R.  S.) 

V.  Pay  of  Chiefs  op  Bureaus  and 

Assistants. 

By  act  of  July  1,  1918  (40  Stat.,  717),  chiefs 
of  bureaus  in  the  Navy  Department,  including 
the  Judge  Advocate  General,  shall  receive  the 
same  pay  and  allowances  as  chiefs  of  bureaus 
and  the  Judge  Advocate  General  in  the  War 
Department.  Prior  to  this  enactment  the  pay 
of  these  officers  was  governed  by  the  statutes 
and  decisions  noted  below: 

Entitled  only  to  shore-duty  pay. — The 
10  per  cent  additional  pay  provided  by  the  act 
of  May  13,  1908,  for  officers  of  the  Navy  \  hile 
serving  on  sea  duty  and  on  shore  duty  beyond 
the  continental  limits  of  the  United  States  is 
not  a  part  of  the  ' '  pay  of  the  grade  "  and  should 
not  be  included  in  computing  the  "highest  pay 
of  the  grade  to  a  hich  they  belong"  of  chiefs  of 
bureaus  in  the  Navy  Department  and  the  as- 
sistants thereto  under  said  act.  (14Comp.  Dec, 
929,88  S.  and  A.  Memo.,  756;  aflirmed  Comp. 
Dec,  Aug._  7,  1908,  90  S.  and  A.  Menio.,  817.) 

It  is  a  primary  rule  in  the  construction  of  stat- 
utes that  the  intention  of  the  legislature  shall 
be  followed  when  the  intention  is  shown.  Re- 
ports of  committee  show  that  the  purpose  of  the 
Navy  Pay  Act  of  May  13,  1908,  was  to  place 
chiefs  of  bureaus  in  the  Navy  Department  on 
the  same  basis  as  officers  holding  like  positions 
in  the  Army.  If  the  chief  of  a  bureau  in  the 
N  avy  Department  of  the  grade  of  rear  admiral 
of  the  lower  nine  be  allowed  .$G,GOO  per  annum — 
the  pay  of  his  grade  increased  by  10  per  cent  for 
service  at  sea — he  would  not  be  paid  on  the  same 
basis  as  ofiicers  holding  like  positions  in  the 
Army,  but  $600  per  annum  more.  (90  S.  and  A. 
Memo.,  817.)  _ 

A  rear  admiral  of  the  second  nine  when  chief 
of  bureau  is  entitled  to  the  pay  of  a  rear  admiral 
of  the  eecond  nine  and  not  to  the  pay  provided 


for  a  rear  admiral  of  the  first  nine.  The  Navy 
Pay  Act  of  May  13,  1908,  divides  rear  admirals 
into  two  grades,  at  least  as  to  pay.  In  this  pro- 
vision for  pay  the  pay  of  rear  admiral  of  the  first 
nine  is  as  distinct  from  that  of  a  rear  admiral  of 
the  second  nine  as  is  the  pay  for  captain  or  any 
other  gi-ade.  (98  S.  and  A.  Memo.,  1034;  see 
also  Terry  v.  U.  S.,  39  Ct.  CIs.,  353;  Gibson  v. 
U.  S.,194U.  S.,  182.) 

The  pay  of  chiefs  of  bureaus  in  the  Navy  De- 
partment is  the  grade  or  shore-duty  pay  of  a 
rear  admiral  of  the  lower  nine,  $6,000  per  an- 
num, without  the  increase  for  service  on  sea 
duty,  and  is  not  affected  by  the  fact  that  the 
commandant  of  the  navy  yard  at  Mare  Island 
and  the  Superintendent  of  the  Naval  Academy, 
although  serving  on  shore,  are  allowed  sea-duty 
pay  by  joint  resolution  of  March  3,  1863  (12 
Stat.,  825),  and  act  of  September  28,  1850  (9 
Stat.,  515).     (18  Comp.  Dec,  15.) 

Assistant  chiefs  of  bureaus  in  the  Navy  De- 
partment are  not  entitled  to  the  10  per  cent  ad- 
ditional of  their  salaries  allowed  for  sea  duty,  or 
shore  duty  beyond  seas,  asapartof  the  "highest 
pay  of  their  grade."    (90S.  and  A.  Memo.,  826.) 

Under  the  provision  in  the  act  of  June  8,  1880 
(21  Stat.,  164),  as  amended  by  the  act  of  June  5, 
1896  (29  Stat.,  251),  providing  that  the  Judge 
Advocate  General  should  receive  the  "highest 
pay  of  a  captain  in  the  Navy, "  an  officer  of  the 
Navy  serving  as  Judge  Advocate  General  is  en- 
titled to  the  sea  pay  of  a  captain,  but  he  is  not 
entitled  to  the  additional  laay  provided  by  law 
for  officers  of  the  Navy  serving  in  insular  posses- 
sions. "The  evident  purpose  of  said  act  of 
June  15,  1896,  was  to  give  claimant  the  sea  pay 
of  a  captain  instead  of  shore-duty  pay.  It  con- 
tains no  phrase  looking  to  the  future.  It  pro- 
vides the  highest  pay  of  a  captain,  but  not  the 
pay  which  a  captain  in  the  Navy  mightthere- 
after  have;  no  words  of  anticipation  are  in  this 
act  *  *  *  By  the  acts  of  June  8, 1880,  and 
June  5,  1896,  the  pay  of  the  Judge  Advocate 
General  was  fixed  at  $4,500  a  year  as  distinctly 
as  if  they  had  specifically  named  said  amount.  ' 
(11  Comp.  Dec,  11;  compare  Schuetze'j;.  U.  S., 
24  Ct.  CIs.,  299;  but  see  Plummer  v.  U.  S., 
224  U.  S.,  137,  holding  that  the  act  of  May  4, 
1898  (30  Stat.,  380),  providing  that  acting  assist- 
ant surgeons  in  the  Navy  shall  have  the  "com- 
pensation of  assistant  surgeons, "  did  not,  as 
held  by  the  Comptroller  of  the  Treasury,  limit 
the  pay  of  acting  assistant  surgeons  to  the  amount 
of  pay  received  by  assistant  surgeons  on  May  4, 
1898,  but  entitled  them  to  increases  in  pay 
thereafter  allowed  by  law  to  assistant  surgeons. 
The  pay  of  the  Judge  Advocate  General  under 
the  act  of  May  13, 1908,  was  not  the  subject  of 
decision,  but  in  practice  he  was  allowed  $5,000 
per  annum,  being  the  highest  shore-duty  pay  of 
a  captain.  See  in  this  connection  House  Re- 
ports, volume  1,  No.  285,  and  Senate  Reports, 
volume  2,  No.  472,  Fifty-fourth  Congress,  first 
session,  1895-96,  which  explain  that  the  purpose 
of  the  act  of  June  5, 1896,  was  to  allow  the  Judge 
Advocate  General,  when  an  officer  of  the  Navy, 
the  "sea  pay  "  of  a  captain,  which  had  been  de- 
nied under  the  previous  laws  by  the  Court  of 
Claims  in  Lemiy  v.  U.  S.  (28  Ct.  CIs.,  468);  see 
also  H.  Rpts.,  vol.  1,  52d  Cong.,  2d  sess.,  1892- 
93,  No.  2191;  and  S.  Rpts.,  vol.  1,  52d  Cong., 
2d  sess.,  1892-93,  No.  1188). 


371 


Sec.  421. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


Prior  to  the  naval  poi-sonnel  act  of  March  3, 
1899  (30  Stat.,  1004),  the  pay  of  chiefs  of  bu- 
reaus of  the  Navy  Department  was  provided  for 
by  section  15G5  of  tJie  Revised  Statutes,  as  fol- 
lows: "Thepay  of  chiefs  of  bureaus  in  the  Navy 
Department  shall  be  the  highest  pay  of  the 
f^rade  to  which  they  belong,  but  not  below 
tliat  of  commodore. "  The  said  personnel  act 
provided  for  their  pay  as  follows:  "  That 
when  the  office  of  chief  of  bureau  is  filled 
by  an  officer  below  the  rank  of  n'ar-admiral, 
said  officer  shall,  while  holding  said  office,  have 
the  rank  of  rear-admiral  and  receive  the  same 
j)ay  and  allowances  as  are  now  allowed  a  briga- 
dier-genei-al  in  the  Army."  The  law  now  cov- 
ering the  pay  of  chiefs  of  bureaus  is  the  follow- 
ing provision  of  the  act  of  May  13,  1908:  "That 
tlie  pay  and  allowances  of  chiefs  of  bureaus  in 
the  Navy  Department  shall  be  the  highest  pay 
of  the  grade  to  which  they  belong,  and  not  below 
that  of  rear-admiral  of  the  lower  nine. "  By 
section  1375  of  the  Revised  Statutes  the  officer 
detailed  as  assistant  to  the  Bureau  of  Medicine 
and  Surgery  is  entitled  to  the  "highest  shore 
pay  of  nis"  gmde."  The  other  assistants  to 
chiefs  of  bureaus  are  each  entitled  to  the  "high- 
est pay  of  his  grade  "by  the  following  acts  in  the 
different  cases:  March  3,  1893  (27  Stat.,  717); 
May  4,  1898  (30  Stat.,  373);  March  3,  1899  (30 
Stat.,  1038),  and  March  3,  1905  (33  Stat.,  1111). 
Section  1556  of  the  Revised  Statutes,  the  pay 
statute  for  naval  officers  in  effect  before  the 
Navy  personnel  act,  provided  three  distinct 
rates  of  pay  for  each  grade — one  for  sea  duty,  an- 
other for  shore  or  other  duty,  and  another  for  an 
officer  on  leave  or  waiting  orders,  and  each  of 
these  rates  was  graduated  by  length  of  service. 
The  act  of  May  13,  1908,  fixes  one  annual  pay 
only  for  each  grade,  with  an  increase  of  such  pay, 
and  equally  permanent,  for  each  five  years' 
service.  "When  the  longevity  pay  is  earned  by 
service  it  becomes  a  part  of  the  permanent  pay 
of  the  grade.  But  the  10  per  cent  additional 
allowed  by  the  act  of  May  13,  1908,  for  sea  duty 
and  for  shore  duty  abroad  is  pay  for  particular 
duty  and  to  be  given  only  "while  so  serving.  " 
It  is  true  that  old  Navy  sea  pay  was  only  earned 
while  on  sea  duty,  but  it  was  an  established  pay 
of  the  grade,  just  as  the  other  two  rates  were. 
There  is  no  longevity  pay  attached  to  the  grade 
of  rear  admiral  of  the  nine  lower  numbers,  so  that 
there  appears  to  be  only  one  rate  of  pay  pro- 
vided for  that  grade  notwithstanding  the  use  of 
the  words  "highest  pay.  "  It  is  difficult  to  give 
the  word  "highest"  a  meaning  in  this  case,  and 
its  use  in  the  above  provision  seems  to  create  an 
ambiguity  as  to  the  meaning  of  the  law.  Rear 
admirals  of  the  nine  lower  numbers  receive  the 
same  advance  in  pay  by  the  act  of  May  13, 1908, 
as  brigadier-generals  of  the  Army  receive  under 
the  Army  act  of  May  11,  1908,  viz,  $500  per 
annum ;  so  that  the  present  pay  of  each  is  $6,000 
per  annum,  and  I  am  of  opinion  that  chiefs  of 
bureaus  in  the  Navy  Department  are  entitled 
to  the  same  unle.ss  thev  are  of  higher  grade.  (14 
Comp.  Cec,  929.) 

Formerly  there  were  thi-ee  separate  and  dis- 
tinct rates  of  pay  of  each  grade,  sea  pay,  leave 
or  waiting-orders  pay,  and  shore-duty  pay. 
Under  the  act  of  I^Iay  13,  1908,  in  lieii  of  the 
three  there  is  only  the  one  rate  t  f  pay  for  each 
gi'ade,  with' increases  for  certain  purposes,  the 


pay  of  the  grade  of  rear-admiral  of  the  lower 
nine  being  .$6,000  per  annum,  with  a  10  per 
cent  increase  thereon  for  serving  on  sea  duty 
or  on  shore  duty  beyond  the  continental  Limits 
of  the  United  States.  No  express  mention  ia 
made  in  the  act  of  any  increase  for  shore  duty 
in  the  United  States,  and  therefore  the  grade 
pay  alone  remains  the  pay  for  that  duty,  or 
"snore-duty  pay,"  within  the  commonly  ac- 
cepted meaning  of  the  term.  While  no  mean- 
ing can  be  attached  to  the  word  "highest, "  yet 
the  intent  of  Congress  should  not  be  defeated 
for  the  purpose  of  conferring  upon  it  a  meaning. 
(18  Comp.  Dec,  15.) 

The  term  "highest  pay  of  his  grade,"  in  the 
cases  of  assistant  chiefs  of  bureaus,  is  given 
effect  by  including  full  longevity  pay,  as  it  is  a 
part  of  the  pay  of  the  grade;  but  the  additional 
pay  provided  by  the  act  of  May  13,  1908,  for  a 
particular  duty,  such  as  sea  duty  and  shore 
duty  a])road,  is  not  a  part  of  the  yearly  pay  of 
the  grade.  Under  the  act  of  May  13,  1908,  as 
interpreted  by  the  Comptroller,  assistant  chiefs 
of  bureaus  receive  an  increase  of  pay  of  at  least 
$500  per  annum  over  their  former  pay,  which 
is  the  increase  generally  provided  by  that  act. 
(90  S.  and  A.  Memo.,  826.  Note.— Pay  Direc- 
tor C.  J.  Peoples,  while  serving  as  assistant  to 
the  Bureau  of  Supplies  and  Accounts,  was  paid 
the  highest  pay  of  the  grade  of  pay  director, 
viz,  that  of  rear  admiral  of  the  upper  half.) 

[Note.— The  act  of  May  13,  1908  (35  Stat., 
129),  and  act  of  March  3,  1909  (35  Stat.,  754), 
each  provided  that  "the  estimates  for  the  sup- 
port of  the  Navy  shall  hereafter  show,  under 
the  head  of  Pay  of  the  Na^^,  the  sums  allowed 
for  pay  of  officers  belonging  to  the  line,  to  the 
several  departments  of  the  staff,  and  to  the 
retired  list;  the  estimates  to  show  under  each 
head  the  amount  allowed  for  pay  proper,  for 
increases  due  to  longevity  and  foreign  service, 
and  for  pay  at  sea  rates  la  officers  employed  on 
shore     *     *     *."] 

Pay  not  reduced  by  appointment  as 
chief  of  bureau. — A  rear  admiral  of  the  senior 
nine,  sei^vingas  chief  of  the  Bureau  of  Ordnance, 
is  entitled  to  the  pay  of  a  rear  admiral  of  the 
senior  nine,  and  is  not  restricted  to  "  the  liighest 
shore-duty  pay  and  allowances  of  the  rear 
admiral  of  the  lower  nine,"  notwithstanding 
the  provision  to  that  effect  in  the  act  of  June 
24,  1910  [since  repealed].  (31  Op.  Atty. 
Gen.,  557,  file  22724-16:3,  approving  10  Op. 
Atty.  Gen.,  377.) 

VI.  Retirement  of  Chiefs  of  Bureaus. 

Rank  on  retirement  same  as  -while 
serving. — Section  1254,  Re\'ised  Statutes,  relat- 
ing to  the  Army,  and  made  applicable  to  the 
Marine  Corps  by  section  1622,  Revised  Statutes, 
provides  that  ' '  officers  hereafter  retired  from 
active  service  shall  be  retired  upon  the  actual 
rank  held  by  them  at  the  date  of  retirement." 
Held  that,  under  these  statutes,  a  captain  in  the 
Marine  Clorps,  holding  the  office  of  Judge 
Advocate  General  of  the  Navy,  with  the  rank 
of  colonel  while  so  serving,  is  entitled  to  be 
retired  with  the  latter  rank.  While  he  held 
this  office  he  held  actual  rank  as  a  colonel  of  the 
Marine  Corps,  and  not  assimilated  rank;  liis 
rank  was  a  fact,  not  a  courtesv.  (Remey  v. 
U.  S.,  33  Ct.  Cls.,  218.) 


372 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  421. 


Sectiou  1457,  Revised  Statutes,  pro^dde8  that 
"officers  retired  from  active  service  shall  be 
placed  on  the  retii'ed  list  of  officers  of  the  grades 
to  which  they  belonged,  respectively,  at  the 
time  of  their  retirement,  and  continue  to  be 
borne  on  the  Navy  register.  They  shall  be 
entitled  to  wear  the  uniform  of  their  respective 
grades  *  *  *."  The  effect  of  this  statute 
upon  the  retirement  of  naval  officers  while 
8er\T.ng  as  chiefs  of  biu*eaus  has  never  been 
judicially  decided.  The  decisions  of  the 
executive  officers  on  the  subject  have  been 
conflicting,  the  cases  being  noted  below: 

The  decision  of  the  Court  of  Claims  in 
Remey's  ciise  (above  noted)  was  extended  to 
the  case  of  Capt.  Samuel  C.  Lemly,  U.  S.  Navy, 
who  was  retired  under  section  1457,  Reused 
Statutes,  from  the  office  of  Judge  Advocate 
General,  with  the  rank  of  captain,  which  he  held 
wliile  so  ser\T.ng  on  the  active  list,  although  his 
rank  in  the  line  was  lieutenant  commander. 
(See  file  21-2,  Mar.  12,  1906.) 

The  act  authorizing  the  appointment  of  a 
Judge  Advocate  General  confers  actual  and  not 
assimilated  rank  upon  the  officer  so  appointed, 
and  an  officer  of  the  Navy  retired  wliile  holding 
the  rank  confeiTed  by  such  appointment  is 
retired  on  said  rank.     (8  Comp.  Dec,  895.) 

The  Attorney  General  (25  Op.  Atty.  Gen., 
294)  held  that  the  word  "grade  "  in  section  1457 
"appears  to  mean  ranh  in  the  line  or  by  relation 
to  the  line — using  rank  and  gi'ade  interchange- 
ably, as  those  words  sometimes  are  used,  and 
not  as  indicating  an  officer's  number  in  a 
particular  grade.  Section  1471  speaks  of  the 
headsliip  of  a  bureau  as  a  'position,'  section 
1472  as  an  office,  section  1473  again  as  a  position, 
and  the  Navy  Regulations,  incorporating  the 
statutes  and  adding  to  them  administrative 
details,  use  both  terms  *  *  *.  I  think, 
however,  that  grade  may  include  such  staff 
offices  and  may  mean  in  an  untechnical  sense 
and  by  a  certain  equity  the  highest  post  to  the 
rank  and  title  of  which  an  officer  has  attained 
upon  liis  retirement,  and  that  section  1457 
fairly  includes  the  office  or  position  of  Pay- 
master-General." (See  note  to  section  1362, 
Revised  Statutes,  for  other  citations  in  which 
"grade "  and  " rank "  have  been  used  synony- 
mously.) 

In  the  opinion  noted  in  the  preceding  para- 
graph, the  Attorney  General  further  stated: 
"As  I  understand  the  matter,  the  situation  is 
precisely  the  same  in  the  line.  An  officer 
serving  as  chief  of  a  bureau,  who  is  a  rear- 
admiral  in  fact,  or  is  in  the  next  lower  grade. 
\-iz.  captain,  if  he  were  retired  during  Lis  in- 
cumbency of  the  bureau  headship  would  be 
retired  with  the  rank,  pay  and  title  of  rear- 
admiral." 

The  above  opinion  of  the  Attorney  General 
was  followed  in  an  opinion  of  the  Judge  Advo- 
cate General  (file  21-2,  Mai-.  12,  1906),  holding 
that  "a  captain  in  the  Navy  reaching  the 
retiring  age  while  ser\dng  as  chief  of  bureau 
^\ith  the  rank  of  rear-admiral,  is  retired  with 
the  latter  rank."  It  was  stated  by  the  Judge 
Advocate  General  that  the  Attorney  General's 
opinion  was  followed  in  the  case  of  PaATiiaster 
General  Kenny,  who  was  "retired  as  a  rear- 
admiral  while  a  pay  director  in  a  staff  cori)s 
of  the  Navy  having  no  rank  corresponding  to 


that  of  rear-admiral;  also  in  the  case  of  the 
present  Paymaster-General  [Harris],  retired  as 
rear-admiral,  liis  rauk  in  his  corps  being  that  of 
pay  director."  The  Judge  Advocate  General 
also  supported  his  opinion  by  the  decision  of 
the  Coint  of  Claims  in  the  Remey  case,  above 
noted,  and  the  fact  that  a  marine  officer  ser\dng 
as  Judge  Advocate  General  was  retired  with 
the  rank  of  colonel,  and  a  naval  officer  in  the 
same  position  was  retired  with  the  rank  of 
captain,  although  their  lineal  ranks  were 
captain  in  the  Marine  Corps  and  lieutenant 
commander  in  the  Navv',  respectively.  The 
Judge  Advocate  General  further  supported  his 
opinion  by  the  act  of  August  5,  1882  (22  Stat., 
286),  providing  that  "hereafter  there  shall  be  no 
promotion  or  increase  of  pay  in  the  retired  list 
of  the  Navy  hut  the  ranh  and  pay  of  officers  on 
the  retired  list  shall  be  the  same  that  they  are  luhen 
such  officers  shall  be  retired." 

The  Navy  Regulations  of  1905  and  1909  pro- 
vided that  "officers  retired  while  serving  as 
chiefs  of  biu-eau  or  as  Judge  Advocate  General 
shall  retain  the  rank  and  titles  held  by  them, 
respectivelv,  while  so  serving."  (Art.  24,  Regs. 
1909;  art.  23,  Regs.  1905;  file  22724--7c?.  May  17, 
1909.  There  is  no  similar  provision  in  the  Navy 
Regulations  of  1913.) 

The  Attorney  General's  opinion,  above  noted, 
(25  Op.  Atty.  Gen.,  294)  reversed  a  former  opin- 
ion of  his  department  (17  Op.  Atty.  Gen.,  154), 
which  was  as  follows:  "Where  W.,  while  hold- 
ing a  commission  as  captain  in  the  Navy,  was 
appointed  to  the  office  of  chief  of  the  Bureau  of 
Navigation,  with  the  relative  rank  of  commo- 
dore: Held  that,  in  case  of  his  retirement  by 
reason  of  a  disability  incident  to  the  service,  or 
on  his  own  application,  during  his  incumbency 
of  that  office,  and  whilst  he  is  borne  on  the  Navy 
Register  as  a  captain,  he  should  be  placed  on  the 
retired  list  with  the  rank  of  captain."  Never- 
theless, in  this  opinion  the  Attorney  General 
stated:  "The  interchangeability  of  the  words 
rank  and  grade  throughout  the  statutes  leads  me 
to  the  conclusion  that  whatever  may  have  been 
their  original  differences  in  meaning,  they  are 
now  to  a  gi-eat  extent  used  synonymously,"  but 
his  conclusion  was  that  the  word  "  rank  "  in  sec- 
tion 1588,  Re\T.sed  Statutes,  pro\'iding  that  re- 
tired officers  shall  receive  75  per  cent  of  the  pay 
of  the  "grade  or  rank  which  they  held,  respec- 
tively, at  the  time  of  their  retirement,"  meant 
"grade,"  which  was  the  reverse  of  the  conclu- 
sion reached  later  (25  Op.  Atty.  Gen.,  294) ;  that 
the  word  "grade"  in  section  1457,  Re\T.sed  Stat- 
utes, meant  "rank." 

The  decisions  of  the  Court  of  Claims  and  of  the 
Comptroller  of  the  Treasury,  the  opinion  of  the 
Attorney  General  (25  Op.  Atty.  Gen.,  294),  and 
the  Navy  Regulations  (art.  24,  Regs.,  1909), all 
support  the  view  that  the  chief  of  a  bureau  in 
the  Navy  Department,  retired  for  physical  disa- 
bility, is  entitled  to  the  rank  and  retired  pay  of 
a  rear  admiral  of  the  lower  nine.  ('File  22724-7d, 
May  17,  1909,  memo.  J.  A.  G.) 

By  act  of  May  13, 1908,  Congress  provided  that 
"any  officer  of  the  Nav>^  who  is  now  serving  or 
shall  hereafter  serve  as  chief  of  a  bureau  in  the 
Navy  Department,  and  shall  subsequently  be 
retired,  shall  be  retired  with  the  rank,  pay.  and 
allowances  authorized  by  law  for  the  retiremen- 
of  such  bureau  chief."    At  the  time  this  legist 


373 


Sec.  421. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


lalioii  was  enacted  the  law  as  construed  by  the 
Attorney  General  (Jo  Op.  Atty.  den.,  294),  by 
the  Navy  Department  (tile  21-2.  Mar.  12,  1906), 
and  by  Navy  regulations  approved  by  the  Presi- 
defit  (art.  23,  Regs.,  1905),  authorized  the  retire- 
ment of  bureau  chiefs  \sith  the  rank  held  by 
them  while  so  serving,  and  the  contrary  opinion 
(17  Op.  Atty.  Gen.,  154)  had  been  reversed. 
[In  this  connection  see  "Introduction,"  ante, 
VI,  D,  'Aids  to  Interpretation  of  Ambiguous 
Statntes."] 

Referring  to  this  act  of  May  13,  1908,  the  At- 
torney General  stated :  "  It  is  obvious  under  the 
language  last  quoted  that  an  officer  actually  re- 
tired from  active  service  while  still  acting  as 
chief  of  bureau  became  entitled  *  *  *  to 
pay  during  retirement  of  not  less  than  three- 
fourths  of  the  pay  of  a '  rear-admiral  of  the  lower 
nine.'"     (28  Op.  Atty.  Gen.,  531.) 

It  is  the  opinion  of  the  Navy  Department 
that  the  existing  laws  entitle  a  line  oflicer  of 
the  Navy,  on  retirement,  while  serving  as 
Judge  Advocate  General  or  chief  of  bureau,  to 
the  rank  held  by  him  while  so  serving,  the 
same  as  a  Marine  otiicer  retired  while  serving 
as  Judge  Advocate  General  and  a  staff  officer 
retired  while  serving  as  chief  of  a  bureau  or 
Judge  Advocate  General  in  the  Navy  Depart- 
ment, and  any  officer  of  the  Ajmy  retired 
while  serving  as  Judge  Advocate  General  or 
chief  of  a  bureau  in  the  War  Department  re- 
tains on  retirement  the  rank  held  by  him  while 
80  serving.     (File  22724-41,  May  14,  1919.) 

The  former  opinions  and  decisions  were  re- 
viewed by  the  Attorney  General,  July  3,  1919, 
and  the  conclusion  reached  that  "  a  line  officer 
of  the  Navy,  retired  while  serving  as  chief  of 
bureau  or  Judge  Advocate  General,  should  be 
placed  on  the  retired  list  wdth  the  rank  attached 
Dy  law  to  the  said  position  of  chief  of  bureau 
or  Judge  Advocate  General."  (31  Op.  Atty. 
Gen.,  505.) 

Rank  on  retirement  not  same  as  while 
serving.— In  27  Op.  Attv.  Gen.,  376,  the  Attor- 
ney General  disapproved  the  opinion  expressed 
in  25  Op.  Atty.  Gen.,  294  (above  quoted),  and 
reverted  to  tliat  expressed  in  17  Op.  Atty.  Gen, 
154  (above  quoted),  that  the  word  "grade," 
in  section  1457,  Revised  Statutes,  does  not 
mean  "rank,"  but  requires  that  a  captain  in 
the  Navy,  serving  as  chief  of  bureau  with 
the  rank  of  rear  admiral,  be  retired  with  the 
rank  of  his  grade  in  the  line,  namely,  with  the 
rank  of  captain,  except  as  specified  in  section 
1473,  Revised  Statutes,  quoted  below.  [In  this 
opinion  the  Attorney  General  did  not  consider 
the  effect  of  the  act  of  May  13,  1908,  as  consti- 
tuting legislative  approval  of  the  existing  con- 
struction of  the  law  under  which  chiefs  of  bu- 
reaus were  held  entitled  to  retirement  with  the 
rank  attached  to  the  office  of  chief  of  bureau.] 

In  27  Op.  Atty.  Gen.,  376,  the  Attorney 
General  stated  that  the  Court  of  Claims'  deci- 
sion in  Remey's  case  (33  Ct.  Cls.,  218),  that  a 
marine  officer  serving  as  Judge  Advocate  Gen- 
eral is  entitled  to  retirement  with  the  rank  of 
colonel,  which  he  held  by  virtue  of  his  office  as 
Judge  Advocate  General,  does  not  apply  to  the 
retirement  of  an  officer  of  the  Navy  serving  as 
chief  of  bureau,  for  the  reason,  among  others, 
that  section  1254,  which  applies  to  the  retire- 
ment of  marine  officers,  uses  the  word  "rank," 


while  section  1457,  which  applies  to  the  retire- 
ment of  officers  of  the  Nav>%  uses  the  word 
"grade";  and  that  while  a  chief  of  bureau  has 
the  rank  of  rear  admiral  he  does  not  by  virtue 
of  his  office  belong  to  the  "grade"  of  rear 
admiral. 

In  28  Op.  Atty.  Gen.,  529,  the  Attorney  Gen- 
eral quoted  approvingly  from  his  opinion  of 
May  26,  1909  (27  Op.  Atty.  Gen.,  376,  379),  that 
a  chief  of  bureau  whose  actual  grade  is  below 
that  of  rear  admiral  is  not  entitled  to  retire- 
ment with  the  rank  of  rear  admiral  except 
in  the  cases  specified  by  section  1473,  Revised 
Statutes  (quoted  below). 

The  Chief  of  Naval  Operations,  by  express  en- 
actment, if  retii'ed  while  so  serving,  shall  have 
the  lineal  rank  and  retired  pay  to  which  he 
would  be  entitled  if  not  so  serving.  (Act  Aug. 
29,  1916,  39  Stat.,  558). 

Rank  on  retirement  of  chiefs  of  "staff" 
bureaus. — Section  1482,  Revised  Statutes,  pro- 
vides that  "staff  officers,  who  have  been  or 
shall  be  retired  for  causes  incident  to  the  service 
before  arriving  at  62  years  of  age,  shall  have  the 
same  rank  on  the  retired  list  as  pertained  to  their 
position  on  the  active  list."  [The  effect  of  this 
section  upon  the  retirement  of  a  staff  officer 
serving  as  cliief  of  bureau  has  not  been  decided. 
See,  however,  file  22724-4],  May  14, 1919,  and 
31  Op.  Atty.  Gen.,  505,  noted  above.] 

Section  1473,  Re\dsed  Statutes,  as  amended, 
provides  that  "officers  who  have  been  or  who 
shall  be  retired  from  the  position  of  Chiefs  of 
the  Bureau  of  Medicine  and  Surgery,  of  Sup- 
plies and  Accounts,  of  Steam  Engineering  [now 
Engineering]  or  of  Construction  and  Repair,  by 
reason  of  age  or  length  of  ser\4ce,  shall  have  the 
rank  of  commodore  [now  rear  admiral]." 

Rank  of  commodore  in  certain  cases. — 
In  5  Comp.  Dec,  823,  it  was  held  by  the  Comp- 
troller of  the  Treasury  that  under  section  1473, 
Revised  Statutes,  the  officers  therein  men- 
tioned would  retire,  under  the  conditions  spe- 
cified, wdth  the  rank  of  commodore,  and  not 
rear  admiral;  notwithstanding  the  fact  that  the 
grade  of  commodore  on  the  active  List  was  abol- 
ished by  the  Navy  personnel  act  of  March  3, 
1899,  and  that  chiefs  of  biueau  now  h^.ve  the 
rank  of  rear  admiral  instead  of  commodore,  aa 
was  the  case  when  section  1473  was  enacted. 
(See  also,  to  same  effect,  file  22724-16:1,  Feb. 
13,  1911,  overruled  by  Attorney  General,  Mar. 
15,  1911,  file  22724-16:3;  and  see  note  to  sec. 
1362  R.  S.)  [The  pay  of  commodore  and  rear 
admiral  of  the  lower  nine  is  the  same,  and  as 
the  Comptroller  of  the  Treasury  has  Jurisdic- 
tion only  of  questions  involving  payments, 
and  the  case  before  him  involved  the  pay  of 
an  officer  retired  under  section  1473,  Re^dsed 
Statutes,  the  question  of  rank  to  which  such 
oflBcer  was  entitled  was  not  under  the  juris- 
diction of  the  Comptroller  to  decide.  The 
Comptroller  of  the  Treasury,  in  a  subsequent 
letter  to  the  Secretary  of  the  Navy,  relating  to 
a  similar  matter,  stated:  "The  decision  of 
*  *  *  referred  only  to  the  pay  of  such  re- 
tired oflScers  and  not  to  the  rank  upon  which 
they  should  be  retired,  as  that  was  a  question 
outside  of  my  jinisdiction  and  in  any  event  did 
not  affect  the  rate  of  pay  in  the  particular  case 
considered.  *  *  *  In  this  decision  the  as- 
sistant comptroller  had  in  mind  the  question  of 


374 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  421. 


pay,  which  was  the  only  question  before  him 
and  the  only  one  over  which  he  had  jurisdiction 
to  render  a  binding  decision.  *  *  *  The 
question  of  the  rank  upon  which  such  an  officer 
should  be  retired  has  therefore  no  bearing  upon 
the  rate  of  pay  which  he  is  to  receive  when  so 
retired.  The  question  of  rank  is  one  peculiarly 
witliin  the  pro\ince  of  your  department  to  deter- 
mine and  a  proper  one  for  submission  to  the 
Attorney  General  for  his  opinion  in  case  of 
doubt."     (File  4784-99,  Dec.  8,  1899.)] 

Rank  of  commodore  no-w  rear  admiral. — 
In  the  following  opinions  the  Attorney  General 
has  indicated  the  view  that  the  rank  of  officers 
retired  under  section  1473,  Re\ised  Statutes,  is 
now  rear  admiral  instead  of  commodore:  25 
Op.  Atty.  Gen.,  296;  27  Op.  Atty.  Gen.,  337, 
344;  27  Op.  Attv.  Gen.,  376;  31  Op.  Atty.  Gen., 
505,  518,  519.     (See  also  file  21-2,  Mar.  12, 1906.) 

In  27  Op.  Atty.  Gen.,  337,  344,  the  Attorney 
General  stated  that  under  section  1473  "  'offi- 
cers who  have  been  or  who  shall  be  retired 
fi'om  the  position  of  chiefs  of  the  bureau  of 
*  *  *  Steam  Engineering  *  *  *  by 
reason  of  age  or  length  of  service,  shall  have  the 
relative  rank  of  commodore,'  {now  the  actual 
rank  of  rear-admiral    *    *    *)." 

In  27  Op.  Atty.  Gen.,  376,  the  Attorney  Gen- 
eral stated  that  Congress  has  provided  that 
officers  retired  from  the  position  of  Chief  of  the 
Bureau  of  Steam  Engineering  by  reason  of  age 
or  length  of  service  shall  have  the  rank  of  rear 
admiral. 

Had  the  Chief  of  the  Bureau  of  Steam  Engi- 
neering been  retired  on  his  own  application, 
after  30  years'  service,  he  would  have  been  en- 
titled, under  section  1473,  Revised  Statutes,  to 
the  rank  of  rear  admiral  on  the  retired  list. 
(File  22724-7Z,  July  13  and  Dec.  9,  1909,  letters 
from  Secretary  of  the  NaAJy  to  House  and  Sen- 
ate Committees  on  Naval  Affairs.) 

The  Navy  Regulations  of  1905  and  1909  pro- 
vided that  a  chief  of  bureau  retired  while  so 
serving  was  entitled  to  the  rank  of  rear  admiral. 
(.\rt.  24,  Regs.,  1909,  and  art.  23,  Regs.,  1905. 
No  similar  pro\dsion  in  Regulations  of  1913.) 

According  to  the  department's  practice,  the 
Paymaster  General  of  the  Nav}^,  if  retired  under 
section  1473,  Revised  Statutes,  is  retired  with 
the  rank  of  rear  admiral.  (See  file  22724-18, 
Nov.  28,  1911;  Bu.  Nav.  file  2425-61,  2108.) 

The  Surgeon  General  of  the  Navy,  Presley 
M.  Rixey,  was  retired  February  4, 1910,  on  his 
own  application  after  30  years'  sei*vice,  with 
the  rank  of  rear  admii-al.  (See  Navy  Register, 
■Jan.  1,  1915,  p.  168.) 

The  act  of  June  24,  1910  (36  Stat.,  607)  [re- 
pealed by  the  act  of  August  22,  1912  (37  Stat., 
328)],  provided  that  chiefs  of  biu-eau  becoming 
eligible  for  retirement  after  30  years'  service 
"shall  have,  while  on  the  active  list,  the  rank, 
title  and  emoluments  of  a  chief  of  bureau,  in 
the  same  manner  as  is  already  provided  by  statute 
law  for  such  officers  iipon  retirement  hy  reason  of 
aye  or  length  of  service,  and  such  officers  after 
tliirty  years'  ser\dce  shall  be  entitled  to  and 
shall  receive  new  commissions  in  accordance 
with  the  rank  and  title  hereby  conferred." 
The  piupose  of  the  act  of  1910  "quite  clearly 
was  to  extend  to  chiefs  of  bureau  becoming 
eligible  for  retirement  the  same  privileges  as 
under  the  prior  law  they  could  claim  upon 


actual  retirement."  (28  Op.  Atty.  Gen.,  531.) 
Under  this  act  of  1910,  the  officers  affected 
thereby  became  entitled  to  permanent  com- 
missions with  the  rank  of  rear  admiral  (28  Op. 
Atty.  Gen.,  429);  and  such  officers  were  com- 
missioned accordingly  with  the  rank  of  rear 
admiral,  including  Rear  Admiral  R.  F.  Niohol- 
son.  Chief  of  the  Bureau  of  Na^dgation. 

Section  1473,  Revised  Statutes,  does 
not  restrict  retirement  with  same  rank  as 
while  serving  to  cases  specified. — Section 
1473,  Revised  Statutes,  in  providing  that  chiefs 
of  certain  bureaus  shall  be  retired  with  the 
rank  of  commodore,  was  not  intended  to  dis- 
criminate against  the  chiefs  of  the  other  bu- 
reaus, but  the  inference  is  that  Congress  in- 
tended thereby  to  confer  upon  chiefs  of  the 
so-called  staff  bureaus  a  rank  on  retirement 
wMch  it  thought  already  appertained  to  the 
chiefs  of  the  so-called  line  bureaus.  (31  Op. 
Atty.  Gen.,  505,  519,  holding  that  line  officers 
serving  as  chiefs  of  bureaus  are  entitled  to 
retire  with  the  rank  of  rear  admiral.) 

Section  1473  expressly  provides  that  the  chiefs 
of  ioMX  biu-eaus  shall,  on  retirement  for  age  or 
length  of  service,  retain  the  rank  which  they 
held  while  so  serving.  "Expressio  unius  ex- 
clusio  alterius" — the  expression  of  one  thing 
excludes  another.  Accordingly,  held  that  a 
captain  in  the  Navy,  serving  as  Chief  of  the 
Bureau  of  Na\dgation,  which  is  not  one  of  the 
bureaus  mentioned  in  section  1473,  should  be 
retired  with  the  rank  of  captain.  (17  Op.  Atty. 
Gen.,  154;  overruled  by  31  Op.  Atty.  Gen.,  505.) 

Section  1473  would  have  been  entirely  un- 
necessary if  in  the  view  of  Congress  or  of  the 
revisers  of  the  statutes  the  effect  of  section  1457, 
in  the  event  of  the  retirement  of  a  chief  of  bu- 
reau, was  to  place  him  on  the  retired  list  of 
officers  of  the  grade  temporarily  held  by  him 
during  his  incumbency  of  the  office  of  chief  of 
bm-eau.  It  was  because  of  the  expression  of 
such  intention  only  in  the  two  cases  mentioned, 
viz,  first,  on  rethement  by  reason  of  age,  and 
second,  on  retirement  by  length  of  service, 
"thus  inferentially  excluding  all  other  cases," 
that  Attorney  General  McVey  reached  the  con- 
clusion expressed  by  him  in  the  Whiting  case 
that  chiefs  of  bureaus  not  coming  within  the 
provisions  of  section  1473  are  entitled  to  retire- 
ment only  with  the  rank  of  theii"  regular  grade 
in  the  Navy — an  opinion  in  which  I  am  con- 
strained to  conciu".  (27  Op.  Atty.  Gen.,  376, 
affirming  17  Op.  Atty.  Gen.,  155,  and  disap- 
proving"25  Op.  Atty.  Gen.,  294;  but  see  31  Op. 
Atty.  Gen.,  505,  noted  above.) 

"\\Tien,  therefore,  a  line  officer  of  the  Navy, 
holding  the  position  of  Engineer  in  Chief,  is 
retired  from  active  ser\'ice  by  reason  of  physical 
disability  and  not  because  of  age  or  length  of 
service,  he  is  to  be  placed  on  the  retired  list  of 
officers  of  the  grade  to  which  he  belonged  at 
the  time  of  retirement — in  this  case  the  grade  of 
captain — and  not  on  the  retired  Ust  of  Engineers 
in  Chief,  for  such  office  is  not  a  grade.  (27  Op. 
Atty.  Gen.,  376.)  [Following  this  opinion,  a 
special  act  of  Congress  was  enacted  May  6,  1910 
(36  Stat.,  352),  providing  for  the  appointment 
of  John  K.  Barton  as  Engineer  in  Chief  on  the 
retired  list,  with  the  rank  of  rear  admiral,  from 
December  22,  1908,  the  date  of  his  original 
retirement,     under    the    Attorney    General's 


375 


Sec.  421. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


opinion,  with  tho  rank  of  captain.  Thereafter 
tnia  opinion  was  reversed  by  the  Attorney  Gen- 
eral, (see  31  Op.  Atty.  Gen.,  505,  noted 
above.)] 

Rank  on  retirement  of  former  bureau 
chief  who  has  returned  to  general  serv- 
ice.—Prior  to  the  act  of  May  13,  1908,  tho 
authorities  clearly  supported  the  following  pro- 
position: A  chief  of  bureau  appointed  from  the 
grade  of  captain,  whose  time  of  bureauship  ex- 
pires, then  reverts  to  the  grade  from  which  he 
was  appointed,  and,  if  afterwards  retired,  re- 
tires in  tlie  lower  grade  to  which  he  so  reverts. 
(File  21-2,  Mar.  12,  1906.) 

However,  by  the  act  of  May  13, 1908  (35  Stat., 
128)  it  was  provided  that  "any  officer  of  the 
Naxy  who  is  now  serA-ing  or  shall  hereafter  sen'e 
as  chief  of  a  bureau  in  the  Navy  Department, 
and  shall  siihseqaently  be  retired,  shall  ])0  retired 
with  the  rank,  pay,  and  allowances  autliorized 
by  law  for  the  retirement  of  such  bureau  chief." 

In  an  informal  opinion  of  the  Attorney  Gen- 
eral it  w;\8  held  that  the  above  legislation  of 
May  13,  1908,  refers  only  "to  the  case  of  retire- 
ment during  service  as  chief  of  bureau,"  and 
does  not  extend  to  the  retirement  of  one  who 
has  left  the  office  of  chief  of  biueau  and  retimied 
to  general  duty  in  the  service  at  large.  (28  Op. 
Atty.  Gen.,  531.)  This  informal  opinion  was 
not  rendered  in  any  specific  case,  and  had 
not  the  force  and  effect  of  an  official  opinion. 
(See  cases  noted  under  sec.  356,  K.  S.,  "V. 
Weight  of  Opinions. ' ')  However  the  informal 
opinion  of  the  Attorney  General  was  followed 
by  the  Court  of  Claims  in  the  case  of  Stokes  v. 
United  States.     (54  Ct.  Cls.,  70.) 

The  above  provision  of  the  act  of  May  13, 
1908,  was  copied  from  the  following  clause  in  the 
Army  act  of  February  2,  1901,  section  26  (31 
Stat.  755):  "And  any  officer  now  holding  office 
in  any  corps  or  department  who  shall  hereafter 
serve  as  chief  of  a  staff  corps  or  department  and 
shall  subsequently  be  retired,  shall  be  retired 
with  the  rank,  pay,  and  allowances  authorized 
by  law  for  the  retirement  of  such  corps  or  depart- 
ment chief."  (See  file  22724-7to,  Nov.  22, 
1909).  By  act  of  June  4,  1920  (41  Stat.,  762), 
relating  to  the  Army,  it  was  provided  that 
"any  officer  who  shall  have  served  four  years 
as  chief  of  a  branch,  and  who  may  subsequently 
be  retii-ed,  shall  be  retired  with  the  rank,  pay 
and  allowances  authorized  by  law  for  the  grade 
held  by  him  as  such  chief." 

No  actual  case  has  been  judicially  decided  in 
the  Army  involving  the  interpretation  of  this 
legislation.  For  memoranda  relating  to  the  in- 
formal opinion  of  the  Attorney  General  aliove 
cited,  and  presenting  certain  considerations 
which  were  not  before  the  Attorney  General  at 
that  time,  see  file  27231-66:3,  Office  of  the 
Judge  Advocate  General  of  the  Na\-y,  and  file 
88-400,  Office  of  the  Judge  Advocate  General 
of  the  Army. 

Orders  to  chief  of  bureau  to  appear 
before  retiring  board. — WTiile  immaterial, 
it  seems  to  l)e  an  in-cgularity  to  order  a  cliief  of 
biu-eau  before  a  retiring  board  by  his  title  as 
chief  of  bureau — e.  g.,  as  "engineer  in  chief" — 
instead  of  the  title  of  his  office  in  the  Une,  viz, 
"captain,"  for  it  ia  by  virtue  of  liis  office  of 
captain  and  not  of  chief  of  bureau  that  he  is 


entitled  or  subject  to  retirement.  (27  Op.  Atty. 
Gen.,  337,  343.     Compare  cases  noted  above.) 

Titles  of  chiefs  of  bureau  after  retire- 
ment. -1  have  no  doubt  whatever,  in  view  of 
the  authorities  which  I  have  cited  and  the 
various  conj^iderations  affecting  the  subject 
wliich  I  have  indicated,  that  when  retirement 
occurs  during  service  as  head  of  one  of  the  staff 
bureau.'^,  tlie  titles  for  the  cliiefs  of  which  are 
provided  for  in  section  1471,  the  retired  officer 
IS  entitled  under  the  law  to  be  borne  upon  the 
Na\y  Register  as  a  retired  officer  under  that 
title  permanently.  (25  Op.  Atty.  Gen.,  294; 
alfirming  25  Op.  Atty.  Gen.,  122;  compare  27 
Op.  Atty.  Gen.,  376.) 

Effect  of  retirement  upon  status  of 
chief  of  bureau. — Chiefs  of  bureaus  are  el- 
igible, after  retirement,  to  serve  out  unexpired 
terms,  particularly  in  view  of  the  statute 
authorizing  the  employment  of  retired  officers 
on  active  duty.     (File  21,  Nov.  2,  1902.) 

An  officer  of  the  Navy  on  the  active  Utit  is 
eligible  for  appointment  as  chief  of  bureau 
although  he  A\all  be  retired  about  a  year  later; 
and  when  the  date  of  his  retirement  arrives  he 
may  be  ordered  to  continue  in  the  performance 
of  his  duties  as  cMef  of  biu^eau  during  the  unex- 
pired portion  of  his  term.  (File  21-1,  Mar.  7, 
1906.) 

At  least  one  Engineer  in  Chief  and  two  Pay- 
masters General,  retired  while  chiefs  of  bureaus, 
have  been  ordered  to  active  duty  upon  retire- 
ment and  have  continued  serving  as  chiefs  of 
bureau  until  the  expiration  of  their  respective 
terms.  The  same  is  true  of  a  former  Judge 
Advocate  General.  Such  action  is  therefore  in 
accordance  with  precedents.  (File  21-1,  Mar. 
7,  1906.) 

The  retirement  of  an  officer  of  the  Navy  wliile 
holding  the  office  of  Judge  Advocate  General 
of  the  Navy  did  not  vacate  that  office,  and  the 
incumbent  continued  to  be  entitled  to  the  pay 
attached  thereto,  if  continued  on  active  duty 
as  Judge  Advocate  General  under  the  order  of 
the  Secretary  of  the  Navy  after  his  retirement. 
(8  Comp.  Dec,  895.) 

The  Paymaster  General  of  the  Navy  having 
been  retired  under  section  1444,  Revised  Stat- 
utes [age],  was  ordered  by  the  Secretary  of  the 
Navy  to  continue  his  duties  as  Paymaster  Gen- 
eral and  Chief  of  the  Bureau  of  Supplies  and 
Accounts  until  further  orders.  Held,  that  he 
is  entitled  to  the  pay  of  that  office  until  the 
expiration  of  his  term  of  appointment,  unless 
sooner  relieved  from  active  duty  as  chief  of 
said  biu"eau.     (10  Comp.  Dec,  56.) 

It  was  quit«  properly  held  by  the  Comptroller 
in  8  Comp.  Dec,  895,  that  a  captain  in  the 
Navy,  serving  as  Judge  Advocate  General,  who 
after  his  retirement  as  captain  was  by  the  Sec- 
retary of  the  Navy  directed  to  continue  his  du- 
ties as  Judge  Advocate  General  pursuant  to 
the  statute  authorizing  the  employment  of  re- 
tired officers  on  active  duty,  was  entitled  to 
hold  the  rank  and  enjoy  the  pay  adhering  in 
such  office  so  long  as  he  continued  to  fill  the 
office  and  perform  the  duties  of  Judge  Advocate 
General,  even  though  he  had  been  retired  as  an 
officer  of  the  line.     (27  Op.  Atty.  Gen.,  376.) 

The  retirement  of  an  officer  while  Chief  of  the 
Bureau  of  Steam  Engineering  "vacated  the 


376 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.    422. 


office  of  Engineer  in  Chief  of  the  Navy,  and  left 
his  legal  status  that  of  an  officer  on  the  retired 
list  of  the  Navj^  holding  the  rank  of  captain." 
(27  Op.  Atty.  Gen.,  337,  344.) 

An  officer  retired  for  physical  disabiUty  while 
serving  as  chief  of  the  Biureau  of  Stearn  Engi- 
neering became  incapable  of  performing  his 
active  shore  duties  as  Engineer  in  Chief  unless 
the  Secretary  of  the  Navy,  under  the  statute 
authorizing  employment  of  retired  officers  on 
active  duty,  ordered  him  to  continue  Ms  duties 
as  chief  of  bureau,  wliich  was  not  done.  (27 
Op.  Atty.  Gen.,  376,  382.) 

Pay  after  retirement  of  oflS.cers  serving 
as  chiefs  of  bureaus. — See  cases  noted  above 
under  "Rank  of  chiefs  of  bureaus  on  retire- 
ment," "Rank  on  retirement  of  former  biireau 
chief  who  has  returned  to  general  service,"  and 
"Effect  of  retirement  upon  status  of  chief  of 
bureau." 

A  line  officer  of  the  grade  of  captain,  retired 
while  holding  the  office  of  Chief  of  the  Bureau  of 
Navigation,  is  entitled  to  the  retired  pay  of  an 
officer  of  the  rank  of  captain.  (17  Op.  Atty. 
Gen.,  154.) 

Chiefs  of  bureaus  coming  within  the  terms  of 
section  1473  are  entitled  to  the  retired  pay  of 
commodore  if  retired  while  holding  such  posi- 
tions, but  chiefs  of  bureaus  who  do  not  fall  with- 
in said  section  are  entitled  on  retirement  only 
to  the  retired  pav  of  their  commissioned  grade. 
(5Comp.  Dec,  823.) 

An  officer  of  the  Marine  Corps  retired  while 
serving  as  Judge  Advocate  General  of  the  Na\'y 
is  entitled  to  the  retired  pay  of  colonel.  (Re- 
mey  i;.  U.  S.,  33  Ct.  Cls.,  218.) 

An  officer  of  the  Navy  ser\'ing  as  Judge  Advo- 
cate General  is  retired  with  the  rank  of  captain 
and  is  entitled  to  be  paid  accordingly.  If  con- 
tinued on  active  duty  as  Judge  Advocate  Gen- 
eral under  the  order  of  the  Secretary  of  the 
Navy  after  retirement,  he  is  entitled  to  receive 
the  active-duty  pay  of  a  captain.  (8  Comp. 
Dec,  895.  Capt.  Lemly,.in  whose  case  this 
decision  was  rendered,  performed  other  active 
duty  under  orders  of  the  Secretary  of  the  Navy, 
after  expiration  of  his  ser\-ice  as  Judge  Advocate 
General,  and  received  the  active-duty  pay  of  a 
captain  for  such  service;  and  when  not  on  any 
active  duty  he  received  the  retired  pay  of  a 
captain;  see  file  22724-7f/,  May  17,  1909.) 

Where  a  line  officer  of  the  grade  of  captain  was 
retired  from  the  office  of  chief  of  bureau  and  was 
continued  on  active  duty  but  not  as  chief  of 
bureau,  he  was  entitled  by  statute  to  the  active- 
duty  pay  of  the  grade  from  which  he  was  re- 
tired, which,  in  his  case,  was  that  of  captain. 
(15  Comp.  Dec,  860.) 

VII.  Assistants    to    Chiefs    of    Bureaus. 

Status  and  powers  of  assistant. — Without 
making  a  question  that  the  assignment  of  com- 
missioned officers  of  the  Navy  to  act  as  assist- 
ants to  chiefs  of  bureaus  may  be  within  the 
general  power  of  the  Secretary  of  the  Navy, 


officers  so  detailed  are  not  legally  "  the  assistant 
or  deputy  of  such  chief, ' '  unless  their  appoint- 
ment is  specifically  authorized  by  statute.  (19 
Op.  Atty.  Gen.,  503;  affirmed  28  Op.  Atty.  Gen., 
95.     See  also  note  to  sec.  178,  R.  S.) 

The  office  of  Surgeon  General  (Army)  is  one 
of  the  distinct  or  separate  bureaus  of  the  admin- 
istrative service  of  the  War  Department.  It 
has  been  found  in  regard  to  many  of  these 
bureaus,  and  even  to  the  heads  of  departments, 
that  it  is  impossible  for  a  single  individual  to 
perform  in  person  all  the  duties  imposed  on 
him  by  his  office.  It  was  to  relieve  the  over- 
burdened principal  of  some  part  of  those  duties 
that  the  office  of  assistant  was  created.  If  no 
\drtue  attached  to  the  acts  of  the  assistant  until 
approved  by  the  Surgeon  General,  any  inferior 
clerk  would  have  answered  the  purpose  as  well 
It  is  not  intended  to  deny  that  the  Assistant 
Surgeon  General  was  subordinate  to  the  chief 
of  his  bureau,  could  be  ordered  to  do  or  not  to 
do  particular  things,  and  when  an  order  made 
by  him  was  disapproved  it  might  be  revoked 
by  that  officer.  But  imtil  so  revoked  or  disap- 
proved it  was  valid,  and  parties  required  to  act 
under  it  had  a  right  to  rely  on  it.  (Parish  v. 
U.  S.,  100  U.  S.,  504;  McCollum  v.  U.  S.,  17  Ct. 
Cls.,  101.) 

In  some  of  the  executive  departments  the 
statutes  provide  for  assistants  to  the  heads 
thereof,  and  also  assistants  and  deputies  to  the 
heads  of  some  of  the  bureaus.  The  duties  of 
these  assistants  are  generally  not  specifically 
defined  by  law,  but  are  left  to  the  direction  and 
regulation  of  superior  officers.  Such  assistants 
are  supposed  to  have  the  confidence  of  those 
immediately  above  them,  and  to  be  officially 
engaged  in  carrying  out  the  will  of  their  prin- 
cipals in  the  details  of  the  work  of  the  depart- 
ment or  bureau  in  which  they  are  employed. 
Wlien  their  acts,  decisions,  or  directions  are 
reduced  to  wiiting,  signed  by  them  in  their 
official  capacity,  filed,  or  recorded  among  the 
archives  of  the  aepartment,  and  do  not  appear 
to  have  been  revoked,  annulled,  or  modified  by 
the  head  of  the  department  or  bureau,  they 
must  be  held  in  the  absence  of  fraud,  mistake, 
or  irregularity  to  have  been  done  within  the 
scope  of  the  authority  of  the  assistant  and  to  be 
as  binding  on  the  Government  as  though 
expressly  ordered  by  the  superior.  Especially 
is  that  so  when  copies  of  such  written  documents 
are  sent  out  by  the  head  of  the  department  in 
which  they  are  found,  without  objection  on  his 
part  to  their  having  been  made  in  the  due  and 
regular  course  of  business  under  his  control. 
(McCollum  V.  U.  S.,  17  Ct.  Cls.,  101.) 

The  assistant  to  an  officer  designated  to  per- 
form the  latter "s  duties  under  section  179, 
Revised  Statutes,  is  quahfied  to  act  as  member 
of  a  board  which  the  law  pro\ddes  shall  include 
in  its  membership  the  officer  whose  duties  he  is 
temporarily  performing.  (20  Op.  Atty.  Gen. 
483.) 

For  other  cases,   see   notes  to  sections    177 
182,  Revised  Statutes. 


Sec.  422.  [Bureaus  of  Yards  and  Docks,  Equipment,  Navigation,  and  Ord- 
nance.] The  cliicfs  of  the  Biu'eau  of  Yards  and  Docks,  of  the  Bureau  of 
Equipment  and  Recruiting,  of  the  Bureau  of  Navigation,  and  of  the  Bureau 


377 


Sec.  423. 


Ft.  2.  HE  VISED  STATUTES. 


Navy  Department. 


ot  Ortliiance,  shall  be  appointed  from  the  list  of  officers  of  the  Navy,  not  below 
the  grade  of  commander. — (5  July,  1862,  c.  134,  s.  1,  v.  12,  p.  510.) 


Bureau  of  Equipment  and  Recruiting:  Was  des- 
ignated as  Bureau  of  Equipment  in  annual 
appropriation  acta  conunencing  witli  the 
fiscal  year  1892;  provision  was  made  for  dis- 
tribution of  the  duties,  funds,  and  em- 
ployees of  the  Bureau  of  Equipment  among 
the  other  biu-eaua  and  offices  of  the  Navy 
Department  by  naval  appropriation  acts 
for  the  fiscal  years  1912^  1913,  and  1914; 
and  the  Bureau  of  Equipment  was  abol- 
ished by  act  of  June  30, 1914(38  Stat.,  408). 
Bureau  of  Navigation:  Detail  of  an  officer  of  the 
Navy  as  assistant  to  the  chief  of  the  Bureau 
of  Navigation  was  authorized  by  act  of 
March  3,  1893  (27  Stat.,  717). 
Bureau  of  Ordnance:  Detail  of  a  line  officer  of 
the  Navy  temporarily  as  assistant  to  the 
cliief  of  the  Biu^eau  of  Ordnance  was  author- 
ized by  act  of  May  4,  1898  (30  Stat.,  373). 
Bureau  of  Yards  and  Docks:  Chief  shall  be  se- 
lected from  Corps  of  Ci^•il  Engineers  and 
have  had  not  less  than  seven  years'  active 
service.     (Act  June  29,  1906,  34  Stat.,  564.) 
Detail  of  an  officer  of  the  Corps  of  Civil 
Engineers  as  assistant  to  the  Chief  of  the 
Bureau  of  Yards  and  Docks  was  authorized 
by  act  of  August  29,  1916  (39  Stat.,  558), 
Line    bureaus. — These    four    bureaus    are 
essentially  line  bureaus,  while  those  mentioned 
in  sections  423-426,  inclusive,  are  staff  bureaus 
(22  Op.  Atty.  Gen.,  47);  excepting  that  the  en- 
gineer ecrps  (steam  engineering)  has  now  been 
transferred  to  the  line  by  the  personnel  act  of 
1899  (25  Op.Atty.  Gen.,  122).     [By  amend- 
ments to  sections  422  and  424,  the  chief  of  the 
Bureau  of  Yards  and  Docks  is  now  appointed 
from  staff  officers  (civil  engineer  corps),  and  the 
chief  of  the  Bureau  of  Steam  Engineering  is 
now  appointed  from  line  officers.] 

The  Bureau  of  Steam  Engineering  [now  En- 
gineering] has  now  become  a  line  bureau 
through  the  amalgamation  of  the  Engineer 
Corps  with  the  line  by  act  of  March  3,  1899 
30  Stat.,  1001.  (File  22724-16:1,  P>b.  13,  1911.) 
The  Bureau  of  Yards  and  Docks  forme 
a  part  of  the  Navy  Department,  and  the  Navy 
Department  is  an  executive  department;  ac- 
cordingly the  embossing  of  envelopes  for  the  use 
of  the  Bureau  of  Yards  and  Docks  is  printing  for 
an  executive  department  and  must  be  done  at 

Sec.  423.  [Bureau  of  Construction  and  Eepair.]  The  cliief  of  the  Bureau  of 
Construction  and  Repair  shall  be  appointed  from  the  list  of  officers  of  the  Navy, 
not  below  the  grade  of  commander,  and  shall  be  a  skillful  naval  constructor.^ — 
(5  July,  1862,  c.  134,  s.  1,  v.  12,  p.  510.) 


the  Goverrmient  Printing  Office.  The  procure- 
ment of  such  em  bossing  ny  a  private  establish- 
ment being  contrary  to  law  there  is  no  authority 
for  the  payment  of  a  voucher  therefor.  (13 
Comp.  Dec,  366.) 

Only  line  officers  eligible  for  appoint- 
ment under  this  section. — This  section  re- 
stricts the  President  in  his  choice  of  chiefs  of  the 
four  bureaus  mentioned  to  officers  of  the  line 
not  below  the  grade  of  commander;  and  the  act 
of  March  3,  1871,  incorporated  in  section  421, 
enlarges  the  President's  power,  gi\-ing  him  the 
alternative  of  making  the  appointment  "from 
officers  ha^dng  the  relative  rank  of  captain  in  the 
etaff  corps  of  the  Navy  on  the  active  list.  "  Ac- 
cordingly the  appointment  may  be  made  either 
from  line  officers  not  below  the  grade  of  com- 
mander, under  this  section,  or  from  staff  officers 
of  the  rank  of  captain  on  the  active  list,  under 
section  421.  It  may  be  said  that  the  law  as 
thus  construed  discriminates  against  the  officers 
of  the  staff  corps  in  the  matter  of  a])pointment  of 
chiefs  of  the  four  bureaus  mentioned  in  this 
section  by  requiring  them  to  hold  a  higher  rank 
than  officers  of  the  line  in  order  to  be  eligible; 
but  the  answer  is  that  since  line  officers  are  not 
eligible  at  all  to  the  chiefsliip  of  staff  bineaus  it 
is  not  unfair  to  require  some  extra  evidence  of 
fitness  in  a  staff  officer  who  is  to  be  made  head 
of  a  line  bureau.  (22  Op.  Atty.  Gen.,  47. 
Chief  of  Bureau  of  Yards  and  Docks  is  now  ap- 
pointed from  staff  officers.  See  law  noted 
above.) 

An  officer  of  the  corps  of  civil  engineers,  not 
below  the  rank  of  captain,  is  eligible  for  appoint-  ■ 
ment  as  Chief  of  the  Bureau  of  Yards  and  Docks 
under  section  421 ;  but  a  civil  engineer  with  the 
rank  of  commander  is  not  an  officer  of  the 
"grade  "  of  commander,  and  therefore  is  not  eli- 
gible for  appointment  as  Chief  of  the  Bureau  of 
Yards  and  Docks  under  section  422.  (22  Op. 
Atty.  Gen.,  47.  But  see  subsequent  amend- 
ment to  this  section  noted  above;  see  also  note 
to  sec.  421,  "Appointment  of  Chiefs  of  Bu- 
reaus, "  and  note  to  sec.  423,  below.) 

For  other  cases,  see  note  to  section  421, 
concerning  appointment,  etatns,  rank,  title, 
precedence,  pay,  retirement,  etc.,  of  chiefs  of 
bureaus. 


Byactof  March  3, 1893  (27  Stat.,  716),  it  was  pro- 
vided that  "any  naval  constructor  ha\dng 
the  rank  of  captain,  commander,  or  lieu- 
tenant commander  shall  be  eligible  as 
Chief  of  the  Biireau  of  Constniction  and 
Repair." 

By  section  147],  Revised  Statutes,  it  was  pro- 
vided that  the  Chief  of  the  Bureau  of  Con- 
struction and  Repair  shall  have  the  relative 
rank  of  commodore  [now  the  rank  of  rear 
admiral],  while  holding  said  position,  and 


the  title  of  Chief  Constructor.  (See  note 
to  sec.  421,  concerning  the  rank  and  titles 
of  chiefs  of  bureaus.) 
By  section  1473,  Revised  Statutes,  it  was  pro- 
vided that  officers  retired  from  the  position 
of  Chief  of  the  Bureau  of  Constniction  and 
Repair,  by  reason  of  age  or  length  of  serv- 
ice, shall  have  the  relative  rank  of  commo- 
dore [now  the  rank  of  rear  admiral — see 
note  to  section  421,  ReAised  Statutes,  con- 
cerning retirement  of  chiefs  of  bureaus.] 


378 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  425. 


Officer  of  the  Corps  of  Naval  Constructors  may 
be  detailed  as  assistant  to  the  Chief  of 
Bureau  of  Constructiou  and  Repair.     (Act 
Aug.  29,  1916,  39  Stat.,  558.) 
Tlie  expression,  "the  list  of  ofla.cers  of 
the  Navy,  not  below  the  grade  of  com- 
mander," in  sections  422   and   423,   strictly 
construed,  applies  only  to  officers  of  the  line. 
Naval  constructors  belong  to  the  staff;  never- 
theless, they  have  been   treated  as  eligible, 
under  section  423,  for  appointment  as  Chief  of 
the  Bureau  of  Construction  and  Repair.    Thus, 
imderthe  practical  interpretation  of  section  423, 
naval  constructors  are  treated  as  officers  of  the 
Navy,  and  their  rank  as  the  "grade"  required 
by  the  section ;  but  it  is  to  be  observed  that,  in 
no  other  way  could  compliance  be  had  with 
the  explicit  requirement  that  the  officer  ap- 
pointed Chief  of  the  Bureau  of  Construction  and 


Repair  shall  be  "a  skillful  naval  constructor." 
Faults  in  expression  were  disregarded  in  order 
to  carry  out  the  manifest  intention  of  the  law- 
maker. (22  Op.  Atty.  Gen.,  47;  see  also  note 
to  sec.  422,  R.  S.,  and  note  to  sec.  421,  R.  S., 
"Appointment  of  Chiefs  of  Bureaus.") 

The  oflace  of  Cliief  of  the  Bureau  of  Con- 
struction and  Repair  is  not  a  "grade  "  in  the 
Navy,  and  was  not  made  so  because  the  rank, 
title,  and  emoluments  of  the  incumbent,  there- 
tofore temporary,  were  made  permanent  by 
the  act  of  June  24,  1910  [now  repealed].  (28 
Op.  Atty.  Gen.,  526.  But  see  cases  noted  un- 
der sec.  421,  R.  S.,  "Ill  status  of  Chief  of 
Bureaus.") 

For  other  cases,  see  note  to  section  421 
Revised  Statutes,  concerning  appointment, 
status,  rank,  title,  precedence,  pay,  retirement, 
etc.,  of  chiefs  of  bureaus. 


Sec.  424.  [Bureau  of  Steam  Engineering.]  Tlie  Chief  of  the  Bureau  of  Steam 
Engineering  shall  be  appointed  from  the  line  of  officers  of  the  Navy  not  below 
the  grade  of  lieutenant-commander,  and  shall  be  a  skillful  engineer. 


This  section  was  amended  to  read  as  above  by 
act  of  June  7,  1900  (31  Stat._,  702). 

As  originally  enacted,  this  section  read  as  fol- 
lows: "Sec.  424.  The  chief  of  the  Bureau 
of  Steam  Engineering  shall  be  appointed 
from  the  chief  engineers  of  the  Navy,  and 
shall  be  a  skillful  engineer." — (5  July, 
1862,  c.  134,  s.  1,  V.  12,  p.  510.) 

The  Engineer  Corps  of  the  Navy  was  trans- 
ferred to  the  line  by  act  of  ]\Iarch  3,  1899 
(30  Stat.,  1004),  and  the  grade  of  chief 
engineers    on    the    active    list   thereupon 

By  act  of  June  4,  1920,  (41  Stat.,  828),  the 
Bureau  of  Steam  Engineering  was  desig- 
nated as  the  "Bureau  of  Engineering." 

By  section  1471,  Revised  Statutes,  it  was  pro- 
vided that  the  Chief  of  the  Bureau  of  Steam 
Engineering  [now  Engineering]  shall  have 
the  relative  rank  of  commodore  [now  the 
rank  of  rear  admiral],  while  holding  said 
position,  and  the  title  of  engineer  in  chief. 
(See  note  to  sec.  421,  concerning  the  rank 
and  titles  of  chiefs  of  bureaus.) 

By  section  1473,  Revised  Statutes,  it  was  pro- 
vided that  officers  retired  from  the  position 
of  Chief  of  the  Bureau  of  Steam  Engineer- 


length  of  service,  shall  have  the  relative 
rank  of  commodore  [now  the  rank  of  rear 
admiral — see  note  to  section  421,  concern- 
ing retirement  of  chiefs  of  bureaus]. 
By  act  of  March  3,  1905  (33  Stat.,  1111),  the 
detail  of  a  line  officer  of  the  Navy  was 
authorized  as  assistant  to  the  Chief  of  the 
Bureau  of  Steam  Engineering  [now  Engi- 
neering]. 
The    retirement    of    the    Chief    of    the 
Bureau   of  Engineering  creates  a  vacancy 
in  that  office,  unless  the  Secretary  of  the  Navy 
order  the  incumbent,  in  accordance  with  law, 
to  continue  to  perform  the  duties  of  said  office 
after  his  retirement,  wliich  was  not  done  in 
this  case.     The  vacancy  so  created  can  not 
legally  be  filled  by  the  assignment  of  the  Chief 
of  the  Bureau  of  Construction  and   Repair  to 
perform  the  duties  of  Chief  of  the  Bureau  of 
Engineering.     (27  Op.  Atty.  Gen.,  337,  344;  27 
Op.  Atty.  Gen.,  376,  382.) 

The  Bureau  of  Engineering  has  now  be- 
come a  line  bureau.  (See  note  to  sec.  422, 
R.  S.) 

For  other  cases,  see  note  to  section  421, 
concerning  appointment,  status,  rank,  title, 
precedence,  pay,  retirement,  etc.,  of  chiefs  of 
bureaus. 


ing,  [now  Engineering]  by  reason  of  age  or 
Sec.  425.  [Bureau  of    Supplies  and  Accounts.]  The  chief  of    the  Bureau 
of  Provisions  and  Clothing  shall  be  appointed  from  the  list  of  paymasters  of 
the  Navy  of  not  less  than  ten  years'  standing. —  (5  July,  1862,  c.  134,  s.  1, 
V.  12,  p.  510.) 


"Bureau  of  Provisions  and  Clothing"  was 
changed  to  "Bureau  of  Supplies  and  Ac- 
counts" by  act  of  July  19,  1892  (27  Stat., 
243,  245). 

Chief  of  the  Bureau  of  Supplies  and  Accounts 
to  have  the  relative  rank  of  commodore 
[now  the  rank  of  rear  admiral]  while  hold- 
ing said  position,  ard  the  title  of  paymas- 
ter general.     (Sec.  1471,  R.  S.     See  note  to 


sec.  421,  concerning  the  rank  and  titles  of 
chiefs  of  bureaus.) 
Retirement  of  Chief  of  the  Bureau  of  Supplies 
and  Accounts,  by  reason  of  age  or  length  of 
service,  with  the  relative  rank  of  commo- 
dore [now  the  rank  of  rear  admiral]  was  au- 
thorized by  section  1473,  Revised  Statutes. 
(See  note  to  sec.  421,  concerning  retire- 
ment of  chiefs  of  bureaus.) 


54641°— 22- 


-25 


379 


Sec.  42' 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


Petail  of  a  pay  oflicer  of  the  Navy  as  assistant 

to  the  Chief  of  the  Bureau  of  Supplies  and 

Accounts,  was  authorized  hy  act  of  July 

26,  1894  (28  Stat.,  132 1,  and  the  pay  of  the 

oflicer   eo  detailed   was  fixed  by  act   of 

March  3.  1899  (30  Stat.,  1038). 
Civilian  assistant  to  Chief  of  the  Bureau  of  Sup- 
plies and  Accounts,  to  perform  also  tne 

duties  of  chief  clerk,  was  provided  for  by 

act  of  February  25.  1903  (32  Stat.,  890),  and 

by  appropriation  acts  for  subsequent  years. 

Sec.  426,  [Bureau  of  Medicine  and  Surgery.]  The  chief  of  the  Bureau 
of  Mechcine  and  Surgery  shall  be  appointed  from  the  list  of  the  surgeons  of  the 
Nav3^— (5  July,  1862,  c.  134,  s.  1,  t.  12,  p.  510.) 


Duties  of  Bureau  of  Supplies  and  Accounts: 

See  note  to  section  419,  Re-vised  Statutes. 

Appointment,  status,  rank,  title,  precedence, 

pay,  retirement,  etc.,  of  chiefs  of  bureaus: 

See  note  to  section  421,  Revised  Statutes. 

The  Avord  '"paymasters"  in  this  section  is 

construed  in  practice  as  meaning  officers  of  the 

Supply  Corpp,  and  is  not  restricted  to  officers  in 

the  f;;rade  of  paymaster.     (See  note  to  sec.  1376, 

R.  S.,  as  to  organization  of  the  Supply  Corps.) 


Chief  of  the  Bureau  of  Medicine  and  Surgery  to 
have  the  relative  rank  of  commotlore  [now 
the  rank  of  rear  admiral]  while  holding  said 
position,  and  the  title  of  Surtreon  General. 
(Sec.  1471,  R.  S.  See  note  to  sec.  421,  con- 
cerning the  rank  and  titles  of  chiefs  of 
bureaus.) 

Retirement  of  Chief  of  the  Biu-eau  of  Medicine 
and  Surgery,  by  reason  of  age  or  length  of 
service,  with  the  relative  rank  of  commo- 


dore [now  the  rank  of  rear  admiral],  was  au- 
thorized by  section  1473,  Revised  Statutes. 
(See  note  to  sec.  421  concerning  retirement 
of  chiefs  of  bureaus.) 

Detail  of  a  medical  officer  as  assistant  to  the  Bu- 
reau of  Medicine  and  Surgery,  was  author- 
ized by  section  1375,  Revised  Statutes. 

Appointment,  status,  rank,  title,  precedence, 
pay,  retirement,  etc.,  of  chiefs  of  bureaus: 
See  note  to  section  421,  Re\dsed  Statutes. 


Sec.  427.  [Use  of  engraved  plates  of  Wilkes's  Expedition.]  The  Joint 
Committee  on  the  Library  shall  grant  to  the  Department  of  the  Nary  the 
use  of  such  of  the  engraved  plates  of  the  United  States  Exploring  Expedition 
under  Captain  Wilkes,  in  charge  of  the  committee,  as  may  be  desired  for 
the  purpose  of  printing  a  supply  of  charts  for  the  use  of  the  Department. — (26 
July,  1866,  Res.  No.  80,  v.  14,  p.  366.) 

Historical  note. — By  act  of  May  14,  1836 
(sec.  2,  5  Stat.,  29),  Congress  authorized  the 
President  to  send  a  survepng  and  exploring 
expedition  to  the  Pacific  Ocean  and  the  South 
Seas,  and  made  an  appropriation  of  $150,000  for 
that  purpose.  On  April  20, 1838,  Lieut.  Charles 
Wilkes  was  appointed  to  the  command  of  the 
expedition,  which  sailed  in  the  month  of  Au- 
gust, 1838.  (See  Wilkes  v.  Dinsman,  7  How., 
91;  see  also,  "The  Wilkes  Exploring  Expedi- 
tion," U.  S.  Naval  Institute  Proceedings,  vol. 


40,  no.  5,  p.  1323.) 

The  Wilkes  Exploring  Expedition ' '  was  a  pub 


specially  authorized  by 
*    for  purposes  of  commerce 


lie  enterprise 
Congress    *    * 

and  science,  very  valuable  to  the  country',  and 
not  entirely  without  interest  to  most  of  the  civ- 
ilized world."  (Wilkes  v.  Dinsman,  7  How., 
122;  see  also  Dinsman  v.  Wilkes,  12  How.,  389.) 

By  act  of  August  26,  1842  (5  Stat.,  534),  Con- 
gress provided  for  publishing,  imder  the  super- 
vision and  direction  of  the  Joint  Committee  on 
the  Librarj^,  "an  account  of  the  discoveries 
made  by  the  exploring  expedition,  under  the 
command  of  Lieut.  \\'ilkes,  of  the  United  States 
Navy, ' '  and  by  act  of  March  3, 1843  (5  Stat. ,  645), 
made  an  appropriation  of  $20,000 ' '  for  preparing 
and  publii^hing  charts,  and  otherwise  carrying 
into  effect "  the  act  of  August  26,  1842. 

By  act  of  March  3,  1851  (9  Stat.,  599),  the 
plates  and  engraAings,  which  were  made  at  the 
expense  of  the  United  States,  were  to  be  de- 
livered to  the  Smithsonian  Institution,  to  enable 
that  institution  to  publish  a  new  edition  of 
Wilkes'  Narrative. 


July  7,  1866  (Congress  Letter  Book,  Navy 
Dept.,  vol.  14,  p.  332),  the  Secretary  of  the 
Navy  advised  the  chairman  of  the  Joint  Com- 
mittee on  the  Library,  United  States  Senate, 
that  the  charts  published  imder  the  authority 
of  the  act  of  March  3, 1843,  had  been  exhausted, 
and  that  the  Navy  Department  desired  to  be 
put  in  possession  of  the  plates  to  enable  it  to 
have  additional  charts  printed  therefrom  for  the 
use  of  the  Na\y  and  the  Commercial  Marine,  and 
suggesting,  in  case  the  committee  should  not 
feel  authorized  to  transfer  the  plates  to  the 
Na\y  Department,  a  joint  resolution  be  sub- 
mitted to  Congress  authorizing  such  transfer  to 
be  made.  As  a  result,  the  joint  resolution  was 
adopted,  which  was  afterwards  embodied  in 
section  427,  Revised  Statutes. 

From  the  records  of  the  Hydrographic  Office 
it  appears  that  there  were  originally  106  copper 
plates  covering  the  above  mentioned  exploring 
expedition,  which  were  apparently  turned  over 
to  the  Na\y  Department  in  compliance  with  the 
joint  resolution  now  embodied  in  section  427, 
Re^■ised  Statutes.  These  copper  plates  were 
not  returned  to  the  Joint  Committee  on  the  Li- 
brary', but  were  used  in  the  Hydrographic  Office 
for  several  years.  Thirty-eight  of  them  are  still 
in  use  by  that  office  for  printing  charts  and  27 
others  are  stored  as  record  plates,  but  have  not 
been  used  for  some  time.  Of  the  remaining  41, 
some  were  turned  over  to  the  Superintendent 
of  the  Coast  and  Geodetic  Survey  in  1881  as 
covering  areas  coming  within  the  jurisdiction 
of  that  office,  and  the  balance  were  scoured  off 
and  the  copper  plates  used  for  other  purposes. 


380 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  429. 


So  far  as  known,  the  Joint  Committee  on  the 
Library  has  never  requested  the  return  of  any 
of  these  plates,  and  they  are  regarded  by  the 
Hydrographic  Office  as  the  property  of  that 
office  and^of  the  Coast  and  Geodetic  Survey. 
(File  9386-14:18,  Jan.  19,  1916.) 

In  the  Commissioners'  Draft  of  the  Revised 
Statutes  (vol.  1,  p.  214),  it  was  stated  with  ref- 
erence to  the  joint  resolution  now  embodied  iii 
the  revision  as  section  427 :  "Very  probably  this 
provision  may  have  become  obsolete.  Itstands 
however,  in  the  Statutes  at  Large  unrepealed." 
[However,  inasmuch  as  it  appears  frona  the 
above  that  certain  of  these  plates  are  still  in  use 
by  the  Hydrographic  Office,  it  would  seem  that 
section  427,  Revised  Statutes,  can  not  be  re- 
garded as  obsolete  unless  it  should  be  construed 
as  having  provided  for  an  absolute  transfer  of 
said  plates  to  the  Navy  Department.     In  this 


connection  see  United  States  Compiled  Statutes 
1917,  in  which  section  427,  Revised  Statutes,  is 
treated  by  the  publishers  as  obsolete.] 

September  4,  1908  (file  15567-6),  the  presi- 
dent of  the  Carnegie  Institute  of  Washington 
was  informed  by  the  Navy  Department  that 
"certain  unpublished  magnetic  data  obtained 
on  the  Wilkes  expedition,"  comprising  several 
hundred  miscellaneous  books  and  sheets,  form- 
ing part  of  the  archives  of  the  Hydrographic 
Office,  were  not  arranged  for  access  to  the  pub- 
lic, and  could  not  be  spared  for  publication,  as 
suggested,  by  the  said  institute ;  but  that '  'later, 
the  results  obtained  from  them  will  be  made 
generally  available,  if  their  scientific  value  is 
clear ;  it  is  in  times  placed  iu  question  by  certain 
gaps  in  the  continuity  of  observation.  To  fill 
these,  much  search  for  further  material,  has  so 
far,  proven  unavailing." 


Sec.  428.  [Collection  of  enemies'  flags.]  The  Secretary  of  tlie  Navy  shall 
I'rom  time  to  time  cause  to  be  collected  and  transmitted  to  him  at  the  seat  of 
Government  all  flags,  standards,  and  colors  taken  by  the  Navy  from  the  enemies 
of  the  United  States.— (18  Apr.,  1814,  c.  78,  s.  1,  v.  3,  p.  133.) 


A  similar  provision  to  this  is  contained  in  sec- 
tion 1554,  Revised  Statutes. 
Preservation  and   public  display  of  captm-ed 


flags,  under  the  direction  of  the  President, 
is  provided  for  by  section  1555,  Revised 
Statutes. 


Sec.  429.  [Reports  to  be  made  by  Secretary  of  the  Navy.]  The  Secretary 
of  the  Navy  shall  make  annual  reports  to  Congress  upon  the  following 
subjects:  [See  §§  19.5,  196.] 

First.  A  statement  of  the  appropriations  of  the  preceding  fiscal  year  for  the 
Department  of  the  Navy,  showing  the  amount  appropriated  under  each  specific 
head  of  appropriation,  the  amount  expended  under  each  head,  and  the  balance 
which,  on  the  thirtieth  day  of  June  preceding  such  report,  remained  imex- 
pended.  Such  report  shall  be  accompanied  by  estimates  of  the  probable 
demands  which  may  remain  on  each  appropriation. 

Second.  A  statement  of  all  offers  for  contracts  for  supplies  and  services  made 
during  the  preceding  year,  by  classes,  indicating  such  as  have  been  accepted. 

Tliird.  A  statement  showing  the  amounts  expended  during  the  preceding 
fiscal  year  for  wages  of  mechanics  and  laborers  employed  in  building,  repairing, 
or  equipping  vessels  of  the  Navy,  or  in  receiving  and  securing  stores  and  ma- 
terials for  those  purposes,  and  for  the  pm^chase  of  material  and  stores  for  the 
same  pm-pose;  and  showing  the  cost  or  estimated  value  of  the  stores  on  hand, 
under  this  ai)propriation,  in  the  navy-yards,  at  the  commencement  of  the  next 
preceding  liscal  year;  and  the  cost  or  estimated  value  of  articles  received  and 
expended  during  the  year;  and  the  cost  or  estimated  value  of  the  articles 
belonging  to  this  appropriation  which  may  be  on  hand  in  the  navy-yards  at 
the  close  of  the  next  preceding  fiscal  year. 

Fourtli.  A  statement  of  all  acts  done  by  him  in  making  sale  of  any  vessel 
or  materials  of  the  Navy;  specifying  all  vessels  and  materials  sold,  the  parties 
buying  the  same,  and  the  amount  realized  therefrom,  together  with  such  other 
facts  as  may  be  necessary  to  a  fidl  understanding  of  his  acts. — (1  May,  1820, 
c.  52,  s.  2,  V.  3,  p.  567;  3  Mar.,  1843,  c.  83,  v.  5,  p.  617;  27  July,  1866^  c.  287, 
s.  3,  V.  14,  p.  305.) 


381 


Sec.  420. 


Pt.2.  REVISED  STATUTES. 


Navy  Departnient. 


Ainoiulment  to  this  section  was  made  by  the 
act  of  Juno  22,  1910  (36  SUit.,  591),  \yhich 
repealed  the  second  clause  of  the  section  as 
quoted  above  with  reference  to  contracts, 
and  at  the  same  time  repealed  a  similar 
provision  of  section  3720,  Revised  Statutes. 

Other  Reports  Required  to  be  Made. 

Accounts:  Bureau  of  Supplies  and  Accounts 
shall  keep  money  accounts  of  the  Naval 
Establishment  so  as  to  show  direct  and  in- 
direct charges  in  the  cost  of  work  and  shall 
report  same  annually  for  the  information 
of  Congress  (act  Mar.  4, 19 LI,  36  Stat.,  1267); 
shall  also  report  annually  to  Secretary  of 
the  Navy  all  receipts  and  expenditures 
(act  May  13,  1908,  35  Stat.,  153). 

Advisory  Committee  for  Aeronautics  is  required 
to  submit  annual  report  to  Congress  through 
the  President,  including  itemized  state- 
ment of  expenditures.  (Act  Mar.  3, 1915, 
38  Stat..  930.) 

Buildings  rented:  Heads  of  departments  are  re- 
quired to  report  to  Congress  in  annual  esti- 
mates buildings  rented  for  their  depart- 
ments, and  the  purpose  and  cost  thereof. 
(Act  Mar.  3,  1883,  22  Stat.,  552.)  The  Sec- 
retary of  the  Treasury'  is  required  to  report 
annually  to  Congress,  in  Book  of  Estimates, 
buildings  rented  by  the  Government  in  the 
District  of  Columbia,  and  the  purpose  and 
cost  thereof.  (Act  July  16,  1892  (27  Stat., 
199);  amended  by  act  May  1,  1913,  sec.  3, 
38  Stat.,  3.) 

Claims:  Secretary  of  the  Navy  is  required  to  re- 
port annually  to  Congress  for  payment, 
through  the '  Secretary  of  the  Treasury, 
amounts  found  to  be  due  claimants  for  dam- 
ages by  collisions  for  which  vessels  of  the 
Navy  are  considered  responsible,  where 
amount  of  claim  does  not  exceed  $500. 
(Act  June  24,  1910,  36  Stat.,  607.)  Also 
shall  report  annually  to  Congress  amount 
of  claims  adjusted  by  him  for  damage  to 
privately  owned  property  not  occasioned 
by  vessels  of  the  Navy.  (Act  July  11, 
1919,  41  Stat.,  132.) 

Condition  of  business:  Heads  of  departments  are 
required  to  make  annual  report  to  Congress, 
in  the  Book  of  Estimates,  as  to  the  condi- 
tion of  business  in  the  department,  and 
whether  in  arrears.  (Act  Alar.  2,  1895, 
sec.  7,  28  Stat..  808.)  Monthly  reports  are 
to  be  made  to  head  of  department  as  to 
condition  of  business  in  the  bureaus  and 
offices  of  the  department  at  Washington 
(act  Mar.  15,  1898.  sec.  7.  30  Stat.,  317); 
and  quarterly  reports  are  to  be  made  to  the 
President  by  the  heads  of  departments  as 
to  the  condition  of  the  public  business  and 
whether  any  branch  thereof  is  in  arrears 
(act  Mar.  15,  1898,  sec.  7,  30  Stat.,  317). 

Contingent  funds:  Heads  of  departments  are  re- 
quii-ed  to  make  annual  report  to  Congress 
of  detailed  expenditures  from  contingent 
funds  of  the  department  and  of  the  bureaus 
and  offices  thereof.  (Sec.  193,  R.  S.;  act 
Mar.  3,  1877,  19  Stat.,  306.) 

Disbursing  officers  are  reqiured  to  make  annual 
reports  to  heads  of  departments  of  disburse- 
ments by  them,  and  heads  of  departments 


are  required  to  communicate  result  of  such 
reports  to  Congress.     (Sec.  193,  R.  S.) 

Employees:  Annual  report  by  Secretary  of  the 
Navy  to  Congress  is  required,  of  amount  ex- 
pended for  ci^ilians  employed  on  clerical 
duty,  or  in  any  other  capacity  than  ordi- 
nary mechanics  and  workingmen,  from 
"  Pav  of  the  Navy."  and  other  naval  appro- 
priations (act  Jan.  30,  1885,  sec.  3,  23 
Stat.,  295);  a  similar  report  is  reqiiired  to 
be  made  by  the  Secretary  of  the  Navy  in 
the  annual  Book  of  Estimates  of  the  num- 
ber and  compensation  of  persons  employed 
from  "Increase  of  the  Navy,"  and  other 
general  appropriations  (act  Apr.  17,  1900, 
31  Stat.,  117);  report  is  also  to  be  made  in 
the  annual  estimates  of  persons  employed 
for  technical  services  from  appropriations, 
"Engineering,"  "  Constniction  and  re- 
pair," "Ordnance  and  ordnance  stores," 
and  from  appropriations  and  allotments 
under  the  Bureau  of  Yards  and  Docks  (see 
annual  legislative,  executive,  and  judicial 
appropriation  acts — e.  g.,  act  Mar.  3,  1917, 
39  Stat.,  1100,  1101). 

Employees  at  navy  yards:  Secretary  of  the 
Navy  shall  each  year,  in  the  annual  esti- 
mates, report  to  Congress  the  number  of 
persons  employed  from  lump  sum  appro- 
priations for  clerical,  drafting,  inspection, 
and  messenger  ser\dce  at  navy  yards  and 
stations  and  offices  under  the  Navy  Depart- 
ment, their  duties,  and  the  amount  paid  to 
each.  (Act  Mar.  3,  1909,  35  Stat., 
755.) 

Employees  detailed:  Heads  of  departments  are 
required  to  report  to  Congress,  in  the 
annual  Book  of  Estimates,  employees  de- 
tailed to  other  offices,  in  accordance  with 
section  166,  Revised  Statutes,  as  amended. 
(Act  Mar.  2,  1895,  sec.  7,  28  Stat.,  808.) 

Employees  inefficient:  Heads  of  departments 
are  required  to  report,  in  the  annual  Book 
of  Estimates,  number  of  employees  in  each 
bureau  and  office  below  a  fair  standard  of 
efficiency,  and  the  salary  of  each.  (Act 
July  11,  1890,  sec.  2,  26  Stat.,  268.) 

Estimates:  Extracts  from  annual  reports  of 
heads  of  departments  and  bureaus  relating 
to  estimates  for  appropriations  and  the 
necessity  therefor,  are  to  be  included  in 
the  Book  of  Estimates  by  the  Secretary  of 
the  Treasurj\  (Act  Mar.  3,  1875,  sec.  3,  18 
Stat. ,  370. )  Report  to  accompany  estimates 
showing  amount  of  outstanding  appropria- 
tion, if  any,  which  will  probably  be  re- 
quired for  each  particular  item  of  expendi- 
tm-e.  (Sec.  3665,  R.  S.)  [Compare  laws 
cited  under  section  430,  Revised  Statutes, 
as  to  restriction  upon  "notes"  following 
estimates.] 

Exchanges  of  typewriters  and  labor-saving 
de\dces  in  part  payment  for  new  machines 
shall  be  reported  annually  to  Congress, 
with  details  relating  thereto.  (Act  Mar. 
4,  1915,  sec.  5,  38  Stat.,  1161.) 

Pay  of  naval  personnel:  Secretary  of  the  Navy 
is  required  to  report  anniially  to  Congress 
amount  of  pay  and  allowances  for  all  offi- 
cers and  enlisted  men.  (See  annual  naval 
appropriation  acts,  e.  g.,  act  Mar.  3, 1915, 38 
Stat.,  928.) 


382 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  429. 


Public  printing:  Quarterly  report  of  work  done 
in  departmental  branches  of  Government 
Printing  Office  is  to  be  made  to  the  head  of 
each  department  by  the  person  designated 
to  approve  requisitions  for  the  department, 
and  such  reports  are  to  be  transmitted  to 
the  Public  Printer  for  his  annual  report  to 
Congress.  (Act  Jan.  12,  1895,  sec.  31,  28 
Stat.,  605.)  Public  Printer  to  report  an- 
nually to  Congress  the  cost  of  operating 
each  "departmental  branch  of  the  Govern- 
ment Printing  Office  (act  Jan.  12,  1895, 
sec.  31,  28  Stat.,  605);  a  detailed  statement 
of  each  account  with  the  departments  for 
printing  and  binding  (act  Jan.  12,  1895, 
sec.  22,  28  Stat.,  604);  and  number  of 
copies  of  each  department  report  and  docu- 
ment printed  ujjon  requisition  by  the  de- 
partment, and  titles  and  numbers  of  books 
bound  for  officers  (act  Jan.  12,  1895,  sec.  19, 
28  Stat.,  603.) 

Publications  received  and  distributed:  De- 
tailed report  thereof  is  to  be  made  annually 
to  Congi-ess  by  the  head  of  department. 
(Act  Jan.  12,  1895,  sec.  92,  28  Stat.,  623.) 

Register  of  officers  of  the  Navy:  By  Senate 
resolution  of  December  13,  1815  (Annals  of 
Congress,  14  Cong.,  Istsess.,  1815-1816,  pp. 
21,  22),  it  was  ''Resolved,  That  the  Secre- 
tary of  War  and  the  Secretary  of  the  Navy 
be  requested  to  furnish  annually,  on  the 
first  of  Januarj^  each  member  of  the  Senate 
with  a  copy  of  the  Register  of  the  Officers 
of  the  Army  and  Navy  of  the  United 
States."  [From  1840  to  1861,  inclusive, 
the  annual  Navy  Register  bore  on  its  title 
page  "Printed  by  order  of  the  Secretary  of 
the  Navy,  in  compliance  with  a  resolution 
of  the  Senate  of  the  United  States  of 
December  13,  1815."  A  House  resolution 
of  January  23,  1812  (Annals  of  Congress,  12 
Cong.,  1st  sess.,  pt.  1,  p.  929),  and  another 
of  March  3, 1813,  required  registers  to  be 
submitted  for  those  years  only.  Provision 
is  made  by  act  of  January  12,  1895,  section 
73  (28  Stat.,  616),  for  the  printing  of  1,500 
copies  of  the  Navy  Register  for  the  use  of 
the  Senate  and  House.  See  file  27231-8, 
Feb.  7, 1911,  and  note  to  section  1457,  R.  S.] 

Repairs  or  changes  proposed  upon  vessels 
amounting  to  more  than  $300,000  in  any 
case :  Annual  report  thereof  is  to  be  made  to 
Congress  by  Secretary  of  the  Navy.  (Act 
Mar.  2. 1907,  34  Stat.,  1195,  as  amended  by 
act  Aug.  29,  1916,  39  Stat.,  605.)  Annual 
report  also  to  be  made  to  Congress  liy  the 
Secretary  of  the  Navy,  in  detail,  of  amount 
expended  for  repairs  to  vessels,  where  such 
amounts  exceed  $200,000,  for  any  one  ship 
in  anv  one  fiscal  year.  (Act  Mar.  3,  1909, 
35  Stat.,  769.) 

Sales  of  imserviceable  vessels  and  materials  are 
to  1)6  reported  annually  to  Congress  by 
Secretary  of  the  Navy.  (Sec.  1541,  R.  S.; 
act  Aug.  5,  1882,  sec.  2,  22  Stat.,  296.)  A 
detiiiled  statement  of  the  proceeds  of  all 
sales  of  old  material,  condemned  stores, 
supplies,  or  other  public  property  of  any 
kind,  shall  be  submitted  to  Congress  at  the 
beginning  of  each  regular  session,  as  a 
separate  communication   and  not  in  the 


Book  of  Estimates.  (Sec.  3672,  R.  S., 
amended  by  act  Feb  27,  1877,  19  Stat., 
249,  and  act  June  25,  1910,  sec.  6,  36  Stat., 
773.)  Heads  of  departments  must  furnish 
Secretary  of  the  Treasury,  within  30  days 
after  close  of  each  fiscal  year,  statement  of 
money  arising  from  proceeds  of  public 
property  or  other  source,  which  was  not 
paid  into  the  General  Treasury,  and  de- 
tailed expenditiu-es,  if  any,  from  such 
fund,  which  statement  shall  be  transmitted 
by  the  Secietaiy  of  the  Treasirry  to  Con- 
gress at  beginning  of  each  regular  session. 
(Act  June  30,  1906,  sec.  5,  34  Stat.,  763.) 

Secretary  of  Treasury  is  to  report  to  Congress  an- 
nually application  of  money  appropriated 
for  the  Navy  Department  (sec.  260,  R.S.); 
also,  to  report  annually  to  Congress  detailed 
receipts  and  expenditures  in  the  naval 
service,  balances  on  hand,  and  amounts 
lost  or  imaccounted  for  (act  June  19,  1878, 
20  Stat.,  167);  and  to  report  annually  to 
Congress  officers  who  have  been  delinquent 
in  rendering  their  accounts  and  officers  in- 
debted to  the  United  States  (act  May  28, 
1896,  sec.  4,  29  Stat.,  179,  amending  act 
July  31,  1894,  28  Stat.,  209). 

Supplies:  Bureau  of  Supplies  and  Accounts  is 
required  to  report  annually  to  Congress  the 
money  value  of  supplies  on  hand,  supplies 
purchased  and  expended  during  year,  and 
balances  remaining  (act  Mar.  2,  1889,  25 
Stat.,  817);  also,  to  report  annually  to  the 
Secretary  of  the  Navy  all  receipts  and  ex- 
penditures (act  May  13,  1908,  35  Stat., 
153). 

Travel:  Annual  report  is  required  to  be  made  to 
Congress  in  detail  by  heads  of  departments 
,of  travel  performed  on  official  business, 
from  ^^'ashington  to  points  outside  of  Dis- 
trict of  Columbia,  by  officers  or  employees 
of  such  departments  other  than  special 
agents.  Inspectors,  or  employees  who  are 
required  to  constantly  travel.  (Act  May 
22,  1908,  sec.  4,  35  Stat.,  244.) 

Useless  papers:  Report  to  Congress  by  head  of 
department  is  required  whenever  useless  pa- 
pers accumulated  in  files  of  department 
should  be  disposed  of.  (Act  Feb.  16,  1889, 
25  Stat.,  672;  act  Mar.  2,  1895,  28  Stat.,  933.) 
Commanders  in  chief  of  fleets  are  to  make 
report  to  the  Secretary  of  the  Na\'y  of  use- 
less papers  accumulated  in  files  of  vessels  of 
the  Navy  (act  Aug.  22,  1912,  37  Stat.,  329); 
and  Secretary  of  the  Navy  is  required  to 
make  detailed  report  to  Congress  of  useless 
papers  destroyed  at  navy  yards  (act  Mar.  3, 
1915,  38  Stat.",  929). 

Distribution,  Printing,  etc.,  of  Reports. 

Distribution:  No  report,  document,  or  publica- 
tion of  any  kind  distributed  from  an  execu- 
tive department  shall  contain  any  notice 
that  the  same  is  sent  with  "the  compli- 
ments" of  an  officer  of  the  Government,  or 
with  any  special  notice  that  it  is  so  sent, 
except  that  notice  that  it  has  been  sent, 
with  a  request  for  an  acknowledgment  of 
its  receipt,  may  be  given.  (Act  Jan.  12, 
1895,  sec.  73,  28  Stat.  620;  see  also   acts 


383 


Sec.  429. 


Pt.  2.  REVISED  STATUTES. 


Navy  Department. 


Mar.  3,  1893,  27  Stat.,  612;  ami  Aug.  5, 
1892,  27  Stat.,  388.) 

Dislriliution  of  publuations  for  any  executive 
ilei)artmeiit,  e.\(.'ei)t  inap.s,  weather  rei)<>rt.s, 
weather  cards,  orders,  iustruction.s,  diroc- 
tioiis,  notices,  or  circuhirs  of  information, 
shall  be  made  by  the  Public  Printer,  in- 
cluding addressing,  wrapi>ing,  mailing, 
etc.,  in  accordance  with  mailing  lists  or 
frankeil  slij)S  furnished  by  the  dei>artment. 
(Act  Aug.  23,  1912,  sec.  8,  37  Stat.,  414.) 
All  reports  or  documents  to  be  distributed 
for  Senators,  Representatives,  and  Dale- 
gates  shall  be  folcied  and  distributed  from 
the  folding  rooms  of  the  Senate  and  House 
ot  Representatives.  (Act  Jan.  12,  1895, 
sec.  71,  28  Stat.,  612.) 

Ownership  of  pul)lications:  Government  puldi- 
cations  furnished  ofiicers  for  oflicial  use 
shall  be  delivered  to  their  successors  on  the 
ex])iration  of  their  official  terra.  (Act  Jan. 
12,  1895,  sec.  74,  28  Stat.,  620.) 

Printing  authorized:  Heads  of  executive  de- 
partments shall  direct  whether  reports 
made  to  them  by  bureau  chiefs  and  chiefs 
of  divi.'^ions  shall  be  printed  or  not.  (Act 
Jan.  12,  1895,  sec.  89,  28  Stat.,  622.)  No 
book  or  document  not  ha\'ing  to  do  with  the 
ordinary  business  tiansactious  of  the  execu- 
tive departments  shall  be  printed  on  the 
requisition  of  any  executive  department 
unless  expressly  authorized  by  Congress. 
(Act  Mar.  3,  1905,  33  Stat.,  1249.)  No  doc- 
ument or  matter  shail  be  printed  except 
that  which  is  authorized  by  law,  and  nec- 
essary to  the  public  business;  and  execu- 
ti\'e  officers  before  transmitting  their  an- 
nual reports  shab  carefully  examine  same 
and  all  accompanying  documents  and  ex- 
clude therefrom  all  matter,  including  en- 
gra\'ings,  maps,  drawings,  and  illustrations, 
except  such  as  they  shall  certify  in  their 
letters  transmitting  such  reports  are  neces- 
sary and  relate  entirely  to  the  transaction 
of  the  public  business.  (Act  Jan.  12,  1895, 
sec.  94,  28  Stat.,  623.)  Illustrations,  maps, 
etc.,  are  to  be  excluded  from  annual  reports 
except  as  necessary  (act  Aug.  30,  1890,  26 
Stat.,  411);  appropriation  for  printing  and 
binding  shall  not  be  used  for  any  illustra- 
tion, engraving,  or  photograph  in  any  docu- 
ment or  report  ordered  printed  by  Congress 
unless  the  order  to  print  expressly  author- 
izes the  same,  nor  in  any  document  or  report 
of  any  executive  department  until  the  head 
of  the  department  shall  certify  in  a  letter 
transmitting  such  rejwrt  that  the  illustra- 
tion is  necessary  and  relates  entirely  to  the 
tran-saction  of  public  business  (act  Mar.  3, 
1905,  33  Start;.,  1213). 

Printing,  cost  of:  Printing  and  binding  of 
documents  and  reports  emanating  from  the 
executive  departments  shall  be  charged  in 
part  to  allotment  of  appropriation  for  print- 
ing and  binding  of  the  department,  and  in 
part  to  the  allotment  for  printing  and  bind- 
ing for  Congi-ess.  (Act  Mar.  30,  1906,  34 
Stat.,  825.)  Any  executive  department  sub- 
mitting reports  or  documents  in  response  to 
inquiries  from  Congress  shall  submit  there- 
with estimate  of  the  probable  cost  of  print- 


ing the  usual  number,  where  such  reports 
or  documents  exceed  50  pages.  (Act  Jan. 
12,  1895,  sec.  2,  28  Stat.,  601,  as  amended 
by  Act  Mar.  1,  1907,  34  Stat.,  1012.) 

Printing,  nundjer  of  copies:  No  report,  publica- 
tion, or  document  shall  be  printed  in  excess 
of  1 ,000  of  each  in  any  one  fiscal  year,  mth- 
out  authorization  therefor  by  Congress, 
except  that  of  the  annual  report  of  the  head 
of  the  department,  without  appendices, 
there  may  be  printed  not  to  exceed  5,000 
co])ies  bound  in  pamphlet  form;  and  of  the 
reports  of  chiefs  of  bureaus  without  appen- 
dices there  may  be  printed  not  to  exceed 
2,500  copies  bound  in  pamphlet  form;  etc. 
(Act  Jan.  12,  1895,  sec.  89,  28  Stat.,  622.) 

Printing,  by  Government  Printing  Office:  All 
printing,  binding,  and  blank  books  for 
the  executive  depaitment  of  the  Govern- 
ment shall  be  done  at  the  Government 
Printing  Office,  unless  otherwise  pro\'ided 
by  law.  (ActJao.  12,  1895,  sec.  87,  28 
Stat.,  622.) 

Printing  ordered  by  Congress:  Publications 
ordered  printed  by  Congress,  other  than 
reports  of  committees,  shall  be  known  as 
Senate  and  House  documents,  and  num- 
bered consecutively.  (Res.  Jan.  15,  1908, 
sec.  1,  35  Stat.,  565.)  "Usual  number"  of 
reports  and  documents,  prescribed  by 
statute,  shall  be  printed  when  ordered  by 
Congress  and  distributed  as  specifically 
provided  for  to  libraries  and  other  desig- 
nated depositories,  etc.  (Act  Jan.  12, 
1895,  sec.  54,  amended  by  act  June  25, 
1910,  36  Stat.,  868.)  Of  the  annual  reports 
of  the  departments  to  Congress,  there  shall 
be  printed,  in  addition  to  the  "usual 
number,"  1,000  copies  for  the  Senate,  and 
2,000  for  the  House.  (Act  Jan.  12,  1895, 
see.  73,  28  Stat.,  612,  615.)  The  depart- 
mental edition,  if  any,  of  publications 
originating  in  or  prepared  by  an  executive 
department,  shall  be  printed  concurrently 
wth  the  "usual  number."  (Res.  Jan.  15, 
1908,  sec.  1,  35  Stat.,  565.)  Public  docu- 
ments and  reports  may  be  printed  for  Con- 
gress or  executive  departments  in  two  or 
more  editions,  not  to  exceed  the  total  num- 
ber of  copies  authorized.  (Res.  Mar.  30, 
1906,  34  Stat.,  826.)  Title  of  publications 
printed  by  order  of  Congress  for  distribution 
by  the  Superintendent  of  Documents  to 
State  and  Territorial  Libraries  and  other 
designated  depositories  shall  be  the  title 
suggested  by  the  subject  of  the  volume. 
(Res.  Jan.  15,  1908,  see.  2,  35  Stat.,  566.) 

Printing  lequisition:  No  printing  shall  be  done 
for  the  executive  departments  without  a 
special  requisition,  .signed  by  the  chief  of 
the  department,  and  filed  with  the  Public 
Printer.  (Act  Jan.  12,  1895,  sees.  89  and 
93,  28  Stat.,  622  and  623.) 

Sale  authorized:  Copies  of  reports  are  to  be 
furnished  by  Public  Printer  to  all  appli- 
cants, upon  payment  in  advance  of  print- 
ing, not  to  exceed  250  to  any  one  applicant. 
(Act  Jan.  12,  1895,  sec.  42,  28  Stat.,  607.) 
Public  documents  may  be  reprinted  for 
sale  by  order  of  the  Superintendent  of 
Documents,  approved  by  the  department 


384 


Navy  Department. 


rt.2.  REVISED  STATUTES. 


Sec.  430. 


from  which  they  originated.  (Res.  Mar. 
28,  1904,  33  Stat.  584.) 

Time  of  making  annual  reports:  Where  not  oth- 
erwise specified,  annual  reports  to  Congress 
are  to  be  made  at  commencement  of  each 
regular  session.  (Sec.  195,  R.  S.)  Neglect 
or  refusal  of  any  officer  to  make  any  report 
within  the  time  prescribed  by  law  is  pun- 
ishable by  fine  of  not  more  than  $1,000. 
(Criminal  Code,  act  Mar.  4,  1909,  sec.  101, 
35  Stat.,  1107.) 

Time  of  furnishing  copy  to  printer:  By  section 
196,  Revised  Statutes,  it  was  provided  that 
copy  of  annual  reports  must  be  furnished 
Public  Printer  by  heads  of  departments  on 
or  before  the  third  Monday  of  Norember 
and  copies  of  documents  usually  accompa- 
nying annual  reports,  on  or  before  the  1st 
day  of  November.  This  section  has  been 
amended  by  clauses  in  the  annual  appro- 
priation acts  providing  that  copies  of  docu- 
ments accompanying  annual  reports  must 
be  furnished  to  Public  Printer  on  or  befoie 
the  15th  day  of  October;  copies  of  annual 
reports  on  or  before  November  15;  and 
complete  revised  proofs  of  accompanying 
documents  and  annual  reports  on  the  10th 
and  20th  days  of  November,  respectively. 
(See  sundry  civil  acts,  Aug.  1, 1914,  38  Stat., 
■  680,  and  July  1,  1916,  sec.  3,  39  Stat.,  336; 
see  also,  30  Op.  Atty.  Gen.,  293.)  Docu- 
ments and  reports  are  not  to  be  printed 
until  illustrations  or  maps  designed  there- 
for shall  be  ready  for  publication;  nor 
unless  entire  copy  and  illustrations  for  the 
work  are  furnished  Public  Printer  within 
one  year.  (Act  Jan.  12,  1895,  sec.  80,  28 
Stat.,  621.) 


Miscellaneous  Reports. 

Accidents  to  employees:  In  certain  cases  report 
of  accidents  is  to  be  made  by  heads  of  de- 
partments to  Employees'  Compensation 
Commission.  (Act  Sept.  7,  1916,  sec.  24, 
39  Stat.,  747.) 

Appointments  without  advice  and  consent  of 
Senate:  Report  to  be  made  to  Secretary  of 
the  Treasury  by  the  President  whenever 
he  designates,  authorizes,  or  employs  any 
person  to  perform  the  duties  of  any  office 
without  the  advice  and  consent  of  the  Sen- 
ate.    (Sec.  1774,  R.  S.) 

Board  of  Visitors  to  Naval  Observatory  is  to  re- 
port to  Secretary  of  the  Navy  annually,  or 
oftener,  condition  of  observatory  buildings 
and  apparatus,  efficiency  of  its  scientific 
work,  and  expenditures  in  administration. 
(Act  Mar.  3,  1901,  31  Stat.,  1122.) 

Chaplains  shall  report  annually  to  the  Secretary 
of  the  Na\'y  the  official  services  performed 
_  by  them.     (Sec.  1398,  R.  S.) 

Chief  clerks  in  departm ants  are  required  to  make 
monthly  reports  to  their  superiors  of  any 
existing  defect  in  the  arrangement  or  dis- 
patch of  business.     (Sec.  174,  R.  S.) 

Official  Register:  Secretary  of  the  Navy  is  to 
furnish  the  Director  of  the  Census  full  and 
complete  list  of  all  officers,  agents,  clerks, 
and  employees  under  the  Navy  Depart- 
ment, including  naval  officers  and  mid- 
shipmen, for  pulilication  in  Official  Regis- 
ter of  the  United  States,  such  information 
to  be  furnished  on  the  1st  of  July  in  each 
year  in  which  a  new  Congress  is  to  assem- 
ble. (Act  Jan.  12,  1895,  sec.  73,  28  Stat., 
618,  as  amended  by  act  June  7,  1906,  34 
Stat.,  219,  superseding  sec.  198,  R.  S.) 


Sec.  430.  [Estimates  for  expenses.]  All  estimates  for  specific,  general,  and 
contingent  expenses  of  tlie  Department,  and  of  the  several  Bureaus,  shall  be 
furnished  to  the  Secretary  of  the  Navy  by  the  chiefs  of  the  respective 
Bureaus.     [See  §  3666.]— (5  July,  1862,  c.  134,  s.  5,  v.  12,  p.  511.) 


Appropriations  for  the  service  of  the  year, 
which  have  been  made  by  former  acts,  are 
to  be  stated  by  the  Secretary  of  the  Treas- 
ury in  annual  estimates  of  appropriations 
required  for  the  pubUc  service.  (Sec. 
3670,  R.  S.) 

Arrangement  and  order  of  estimates  are  to  be 
same  as  appropriation  acts  for  the  preceding 
year.  Any  changes  therein,  and  transfers 
of  salaries  from  one  office  or  bureau  to 
another  office  or  bureau,  or  consolidation  of 
offices  or  bureaus  desired  by  head  of 
department,  may  be  indicated  by  note  in 
estimates.     (Act   June    22,    1906,    sec.    4, 

34  Stat.,  448.) 

Arrangement  of  estimates  is  to  be  changed, 
under  direction  of  the  Secretary  of  the 
Treasury,  before  submission  to  Congress, 
when  not  in  the  form  prescribed  by  act 
June  22,  1906.     (Act  Mar.  4,  1909,  sec.  4, 

35  Stat.,  907.) 

Book  of  Estimates  is  to  contain  all  estimates  of 
appropriations  required  for  the  fiscal  vear 
for^which  prepared  and  submitted.  (Act 
June  22,  1906,  sec.  4,  34  Stat.,  448.) 


Book  of  Estimates  is  to  be  prepared  under  the 
direction  of  the  Secretary  of  the  Treasury, 
through  whom  all  annual  estimates  for  the 
public  service  shall  be  submitted  to 
Congress.     (Sec.  3669,  R.  S.)  _ 

Compensation  of  officers  is  to  be  estimated  for  in 
accordance  \n.t\\  express  provisions  of  law, 
and  not  in  accordance  with  executive  dis- 
tribution.    (Sec.  3662,  R.  S.) 

Conjectural  estimates  are  to  be  distinguished 
from  such  as  are  framed  upon  actual  infor- 
mation and  applications  from  disbursing 
officers.     (Sec.  3660,  R.  S.) 

Date  and  section  of  law,  and  volume  and  page 
of  Statutes  at  Large  or  section  of  the 
Revised  Statutes  by  which  proposed  ex- 
penditures are  authorized,  are  to  be  cited  by 
heads  of  departments  in  submitting  esti- 
mates to  Congress.     (Sec.  3660,  R.  _S.) 

Form  of  estimates,  and  time  of  submission  to 
Congress,  shall  be  as  required  by  law,  and 
no  estimates  shall  be  submitted  in  any  other 
form  or  at  any  other  time.  (Act  Aug.  23, 
1912,  sec.  9,  37  Stat.,  415.) 


385 


Sec.  430. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


General  or  lump-sum  estimates  are  to  be  accom- 

fianiod  in  certain  cases  by  a  statement  in 
5ooK  of  Estimates  showing,  in  parallel  col- 
umns, number  and  compensation  of  persons 
intended  to  be  employed,  and  other  ex- 
penditures contemplated  therefrom;  and 
number  and  compensation  of  persons  em- 
ployed and  other  expenditnres  out  of 
corresponding  appropriation  for  preceding 
fiscal  year.  (Act  Aug.  24,  1912,  sec.  6,  37 
Stat.,  487,  aa  amended  by  act  Aug.  1, 1914, 
sec.  10,  38  Stat.,  CSO.)  Such  information 
shall  be  submitted  according  to  uniform 
and  concise  methods  which  shall  be  pre- 
scribed by  the  Secretary  of  the  Trea.sur\% 
but  ^^'ith  reference  to  estimates  for  pay  of 
mechanics  and  laborers  there  shall  be  sub- 
mitted in  detail  only  the  ratings  and  trades 
and  the  rates  per  diem  paid  or  to  be  paid. 
(Act  July  1,  1916,  sec.  4,  39  Stat.,  336). 

Na\'j' :  Estimates  for  pay  of  1  he  Navy  shall  show 
pay  of  line,  staff,  and  retired  officers, 
amount  of  pay  proper,  longevity  and  for- 
eign serAdce  increases,  sea  pay  for  officers 
on  shore,  total  number  of  warrant  and  petty 
officers  and  seamen  and  their  pay  proper 
and  longe\dty  or  service  increases,  and 
rates  of  pay  for  all  petty  officers  and  other 
enlisted  men.  (Act  Mar.  3,  1909,  35  Stat., 
754.) 

Navy:  Estimates  for  expenditures  required  by 
the  Navy  Department  for  certain  purposes 
must  be  given  in  detail,  including  trans- 
portation, advertising,  purchase  and  repair 
of  machinery,  traveling  expenses,  funeral 
expenses,  recruiting,  apprehending  de- 
serters, witnesses  before  courts-martial 
and  coiuts  of  inquiry,  etc.  (Sec.  3666, 
R.  S.)  _ 

Navy  pension  fund:  Estimates  of  claims  and 
demands  chargeable  upon  and  payable  out 
of  Navy  pension  fund  are  to  be  submitted 
annuallv  to  Congress  by  Secretary  of  the 
Navy.   '(Sec.  3667,_R.  S.)_ 

New  items,  or  material  variations  in  usual 
items,  are  to  be  accompanied  by  explana- 
tions in  estimates.     (Sec.  3664,  R.  S.) 

Notes  shall  not  be  submitted  following  any  esti- 
mate other  than  as  provided  for  "general  or 
lump  sum"  estimates  (.see  above)  except 
such  as  suggest  changes  in  form  or  order  of 
arrangement  of  estimates  and  appropria- 
tions and  reasons  for  such  changes.  (Act 
Aug.  24,  1912.  sec.  6,  37  Stat.,  487,  as 
amended  by  act  Aug.  1,  1914,  sec.  10,  38 
Stat.,  680.) 

Official  is  to  be  designated  by  head  of  each  de- 
partment to  supervise  the  classification  and 
compilation  of  all  estimates  to  be  submitted 
by  such  department.  Said  official  shall 
have  due  regard  for  the  requirements  of 
all  laws  respecting  preparation  of  estimates, 
including  manner  and  time  of  their  sub- 
mission to  Congress  througli  the  Secretary 
of  the  Treasury;  all  unnecessary  words  to  be 
eliminated  from  all  such  estimates.  (Act 
June  23,  1913,  sec.  3,  38  Stat.,  75.)  An 
' '  estimate  clerk ' '  in  the  Navy  Department 
is  provided  for  in  the  annual  legislative, 
executive,  and  judicial  appropriation  act. 

Per  diem  allowance.s  in  lieu  of  subsi-stence  to 
persons  engaged  in  field  work  or  travel  on 


official  business  may  be  prescribed  by 
heads  of  departments,  and  estimates  of  ap- 
propriations from  which  paid  shall  specifi- 
cally state  the  rates  of  such  allowances. 
(Act  Aug.  1,  1914,  sec.  13,  38  Stat.,  680.) 

President  is  to  recommend  reduction  by  Con- 
gress in  amounts  estimated  for,  where  in 
excess  of  estimated  revenues,  if  practicable 
without  undue  injury  to  the  public  service; 
or  otherwise  he  shall  recommend  such  loans 
or  new  taxes  as  necessary  to  cover  the 
deficiencv.  (Act  Mar.  4,  1909,  sec.  7, 
35Stat.,i027.) 

Printing  and  binding  estimates  are  to  be  sub- 
mitted annually  by  head  of  department  (sec. 
3661,  R.  S.);  printing  and  binding  estimates 
are  to  be  submitted  to  Congress  in  detail  by 
the  Public  Printer,  covering  all  work  to  be 
done  under  his  direction  (act  Mar.  2,  1895, 
sec.  1,  28  Stat.,  961);  printing  and  binding 
estimates  are  to  be  submitted  in  regular  an- 
nual estimates  to  Congress  under  "Printing 
and  binding,"  and  to  include  all  printing 
and  binding  required  by  each  of  the  execu- 
tive departments,  their  bureaus  and  offices, 
for  each  fiscal  year,  ^vith  exception  of  en- 
velopes and  certain  articles  of  stationery 
printed  in  the  course  of  manufacture  (act 
June  30,  1906,  sec.  2,  34  Stat.,  762). 

Printing  and  engraving  for  the  Ilydrographic 
Office  of  the  Navy  Department  are  to  be 
estimated  for  separately  and  in  detail,  and 
appropriated  for  separately.  (Act  Aug.  4, 
1886,  24  Stat.,  255.) 

Public  works  estimates  are  to  be  accompanied  by 
full  plans  and  detailed  estimates  of  the  cost 
of  the  whole  work.  Subsequent  estimates 
therefor  shall  state  original  estimated  cost, 
amount  already  appropriated  and  ex- 
pended, amount  required  in  excess  of 
original  estimate,  and  reasons  for  the  excess. 
(Sec.  3663,  R.  S.,  as  amended  by  act  Feb. 
27,  1877,  19  Stat.,  249.)  _      _ 

Reports  to  Congress  of  certain  information  are 
required  to  be  made  by  heads  of  depart- 
ments in  the  Book  of  Estimates. — See  notes 
to  section  429,  Revised  Statutes. 

Secretary  of  the  Treasury:  All  estimates  of 
appropriations  and  of  deficiencies  in  appro- 
priations, shall  be  transmitted  through  the 
Secretary  of  the  Treasury,  and  in  no  other 
manner.  Secretary  of  the  Treasury  shall 
cause  same  to  be  classified,  compiled,  in- 
dexed, and  printed.  (Act  July  7,  1884,  23 
Stat.,  254.) 

Secretary  of  the  Treasury:  Estimates  are  to  be 
furnished  Secretary  of  the  Treasury  by  heads 
of  departments  on  or  before  15th  day  of 
October  of  each  year;  in  case  of  their  failure 
to  do  so,  he  shall  cause  estimates  to  be  pre- 
pared in  the  Treasury  Department  for  such 
appropriations  as  in  his  judgment  shall  be 
requisite,  which  estimates  shall  be  sub- 
mitted to  Congress  in  the  Book  of  Estimates. 
(Act  Mar.  3,  1901,  sec.  5,  31  Stat.,  1009.) 

Sources  from  which  estimates  are  derived  shall 
be  specified  by  heads  of  departments,  as 
nearly  as  may  be  convenient,  in  communi- 
cating estimates  to  Congress.  (Sec.  3660, 
R.  S.) 

Special  or  additional  estimates  are  to  be  submit- 
ted only  under  exceptional  circumstances. 


386 


Navy  Department. 


PL  2.  REVISED  STATUTES. 


Sec.  431. 


and  shall  be  accompanied  by  full  statement 
of  their  imperative  necessity  and  reasons  for 
omission  in  the  annual  estimates.     (Act 
June  22,  1906,  sec.  4,  34  Stat.,  448.) 
Vehicles,    passenger-carrying:     Purchase    and 
maintenance  of,  shall  be  estimated  for  in 
detail,  specifying  use  for  which  intended, 
etc.     (Act  July  16,  1914,  sec.  5,  38  Stat.. 
508.) 
Appropriations  only  for  one  fiscalyear. — - 
The  annual  appropriation  acts  are  enacted  in 
conformity    with    the    mandatory    provisions 
of    sections    430,    3676,    and    3678,    Revised 
Statutes.      They   always  are  for  the  service 
of  the  given  year  for  which  they  are  esti- 
mated and  appropriated.     It  is  undoubtedly 
true  that  in  the  ordinary  conduct  of  administra- 
tion,   materials    and    supplies    properly    pur- 
chased remain  unconsumed  and  unused  at  the 


end  of  the  fiscal  year.  This  is  recognized  and 
has  been  provided  for  with  reference  to  the 
Navfil  Establishment  by  statute  (act  Mar.  2, 1889, 
25  Stat.,  817,  818).  If  the  statutes  providing 
appropriations  for  a  current  fiscal  year  can  re- 
ceive the  latitudinarian  construction  of  per- 
mitting purchases  of  supplies  avowedly  for  use 
not  in  that  but  in  another  and  succeeding  year, 
this  would  do  away  with  the  force  of  all  the 
statutes  making  annual  appropriations.  It 
would  utterly  destroy  the  relation  between  the 
laws  governing  appropriations  and  expenditures. 
The  intentional  acquisition  of  naval  supplies 
for  consumption  or  use  in  succeeding  years 
by  purchase  from  appropriations  for  a  current 
fiscal  year  is  inconsistent  vdXh.  the  provisions  of 
the  act  of  March  2,  1889.  (28  Op.  Atty.  Gen., 
634.) 


Sec.  431.  [Hydrographic  Ofl5ce.]  There  shall  be  a  Hydrograpliic  Office 
attached  to  the  Bureau  of  Navigation  in  the  Navy  Department,  for  the  improve- 
ment of  the  means  for  navigating  safely  the  vessels  of  the  Navy  and  of  the 
mercantile  marine,  by  providing,  under  the  authority  of  the  Secretary  of  the 
Navy,  accurate  and  cheap  nautical  charts,  sailing  directions,  navigators,  and 
manuals  of  instructions  for  the  use  of  all  vessels  of  the  United  States,  and  for 
the  benefit  and  use  of  navigators  generally. — (21  June,  1866,  c.  129,  s.  1,  v.  14, 
p.  69.) 


Amendment  was  made  to  this  section  bv  act  of 
May  4,  1898  (30  Stat.,  374),  which  provided 
that  the  Hydrographic  Office  should  be  at- 
tached to  and  made  a  part  of  the  Bureau  of 
Equipment.  By  naval  appropriation  acts 
for  the  fiscal  years  1912,  1913,  and  1914, 
pronsions  were  made  for  the  distribution 
of  the  duties,  funds,  and  employees  of  the 
Bureau  of  Equipment  among  the  other 
bureaus  and  offices  of  the  Naw  Depart- 
ment, and  by  act  of  June  30, 1914^(38  Stat., 
408),  the  Bureau  of  Equipment  was  abol- 
ished. Pursuant  to  these  statutes  the  Hy- 
drographic Office  was  again  attached  to  the 
Bureau  of  Navigation  by  Navy  Regulations, 
and  has  since  been  appropriated  for  under 
that  bureau.  (See,  for  example,  act  Mar. 
4,  1915,  38  Stat.,  1026.) 

Appropriations  for  the  preparation  or  publica- 
tion of  forei.^n  hydi-ographic  surveys  shall 
only  be  applicable  to  their  object  upon  ap- 
proval of  the  Secretary  of  the  Navy  after  a 
report  from  three  competent  naval  officers 
to  the  effect  that  the  original  data  for  pro- 
posed charts  are  such  as  to  justify  their  pub- 
lication. (Sec.  3686,  R.  S.,  reenacted  as 
sec.  78,  act  Jan.  12_,  1895,  28  Stat.,  621.) 

International  Code  of  Signals,  sale  of  to  the  pub- 
lic at  cost  was  authorized  by  act  of  March  3, 
1901  (31  Stat.,  1187,  sundry  civil  act,  print- 
ing and  binding). 

Naval  officers,  not  exceeding  four,  may  be  de- 
tailed as  necessary  to  the  Hydrographic 
Office  by  the  Secretary  of  the  Na\'y.  (Act 
Mar.  4,  1917,  39  Stat.,  1172.)  The  Secre- 
tary of  the  Navy  is  authorized  to  detail 
such  naval  officers  as  may  be  necessary  to 
the  Hydrographic  Office"  during  the  con- 


tinuance of  the  present  war.  (Act  Apr.  25, 
1917,  40  Stat.,  38.)  "The  Secretary  of  the 
Navy  is  authorized  to  detail  such  naval 
officers  as  may  be  necessary  to  the  Hydro- 
graphic  Office. ' '  (Act  July  1, 1918,  40  Stat. , 
708.) 

Personal  services  or  other  expenditures  are  not 
to  be  authoriz'  d  under  the  Hydrographic 
Officeat  Washington,  D.  C,  except  asappro- 
priated  for  under  the  Navy  Department  in 
the  annual  legislative,  executive,  and  judi- 
cial appropriation  act,  or  under  appropria- 
tions for  the  public  printing  and  binding. 
(See  act  Mar.  3,  1917,  39  Stat.,  1099.) 

Printing  of  charts,  maps,  notices  to  mariners, 
tide  tables,  light  lists,  sailing  directions, 
bulletins,  and  other  special  publications  of 
the  Hydrographic  Office,  may  be  authorized 
by  the  Secretary  of  the  Navy  in  such  edi- 
tions as  the  interests  of  the  "Government 
and  of  the  public  may  require.  (Act  Jan. 
12,  1895,  sec.  89,  28  Stat.,  622.) 

Printing  and  engraving  for  the  Hydrographic 
Office  are  to  he  estimated  for  separately  and 
in  detail,  and  appropriated  for  separately. 
(Act  Aug.  4,  1886,  24  Stat.,  255.) 

Weather  Bureau  shall  continue  fiu-nishing 
meteorological  information  to  the  Hydro- 
graphic  Office  for  use  in  preparation  of 
Pilot  Charts;  and  said  charts  shall  have 
conspicuously  printed  thereon:  "Prepared 
from  data  furnished  by  the  Hydrographic 
Office  of  the  NaA^  Department  and  by  the 
Weather  Bureau  of  the  Department  of 
Agriculture,  and  publL-^^hed  at  the  Hydro- 
graphic  Office  under  the  authority  of  the 
Secretary  of  the  Navy."  (Act  June  17, 
1910,  36  Stat.,  508.) 


387 


Sec.  431. 


Pi.  J.  REVISED  STATUTES. 


Navy  Department. 


General  duties  of  Hydrograpliic  Office. — 

The  work  of  the  llydroj^raphic  OHkt'  comprises 
the  making,  revision,  correction,  and  issue  of 
charts  and  sailiufi;  directions  for  all  parts  of  the 
world,  including?  monthly  Pilot  Charts  of  the 
North  Atlantic  and  Pacific  Oceans;  compila- 
tion, printinj,',  and  issue  of  weekly  and  other 
periodical  notices  to  mariners;  re\dsion  and 
issue  of  navigation  tables;  supervision  of  ocean 
and  lake  surveys,  and  the  direction  and  su- 
porvL^ion  of  branch  hydropraphic  offices  and 
sales  agencies,  distributed  among  the  principal 
sea  and  lake  ports  of  the  country.  (File  24501- 
26:1,  Jan.  25,  1912.) 

The  work  of  the  Hydrographic  Office  ever 
since  its  inception  has  been  directed  to  improv- 
ing the  means  for  navigating  safely  the  vessels 
of  the  Naxy  and  the  Mercantile  Marine  by  pro- 
ducing accurate  and  cheap  nautical  charts, 
books,  numuals,  and  such  secondary  publica- 
tions as  would  be  of  service  to  navigators  and 
the  maritime  world  as  the  organic  law  (sees. 
431-433,  R.  S.)  requires.  (File  24501-22,  Dec. 
29,  1910.) 

It  is  the  opinion  of  the  Na\^  Department  that 
the  work  of  the  Hydrographic  Office  merits  the 
heartiest  confidence  and  support;  also  that 
there  should  be  no  reduction  in  the  branch 
hydrographic  offices,  as  they  are  important 
feeders  or  nautical  information  required  by  the 
main  office.     (File  24501-22,  Dec.  29,  1910.) 

Pilot  Charts. — The  Pilot  Chart  grew  into 
being  as  the  result  of  the  labors  and  research  of 
Lieut.  Maury.  The  Navy  of  the  United  States 
was  the  pioneer  in  publishing  work  of  this  kind. 
Neither  its  usefulness  nor  its  accuracy  has  ever 
been  questioned.  It  is  kno^vn  throughout  the 
world  as  being  published  by  the  Hydrographic 
Office.  (Ann.  Kept,  of  Hydrographic  Office, 
1910.) 

Between  1844  and  1861  there  were  compiled 
and  issued  under  the  Navy  Department, 
"Maury's  Wind  and  Current  Charts,"  upon 
which  the  present  Pilot  Charts  are  fotmcled. 
(File  24501-19,  Aug.  2,  1910.) 

The  Pilot  Charts  have  been  published  since 
1883  by  the  Hydrographic  Office  of  the  NaA'y 
Department  imder  the  provisions  of  eections  431 
and  432,  Revised  Statutes.  (File  24501-19, 
Aug.  3,  1910.) 

These  charts  contain  information  concerning 
the  North  Atlantic,  South  Atlantic,  North 
Pacific,  South  Pacific,  and  Indian  Oceans. 
They  are  invaluable  for  the  purposes  of  the 
Na\'y  and  almost  indispensable  to  navigators  of 
merchant  vessels.  They  include  the  prevailing 
winds,  as  shown  by  averat^es  collected  for  the 
past  10  years,  the  best  sailing  routes  for  vessels 
in  view  of  these  prevailing  winds,  meteoro- 
logical conditions  that  may  be  expected  in  the 
various  portions  of  the  ocean,  ancl  a  number  of 
other  matters  of  great  interest  to  the  mariner. 
(File  24501-19,  Aug.  3,  1910.) 

The  Pilot  Chart  shows  graphically  naviga- 
tional features  (magnetic  variation,  currents, 
sail  and  steam  ship  tracks,  etc.),  and  meteoro- 
logical data.     (File  24501-24,  Mar.  8,  1911.) 

The  Pilot  Charts  constitute  an  essential  link 
between  the  Hydrographic  Office  and  the  ship- 
masters of  all  nations,  whereby  important 
hydrographic  and  navigational  reports  are  con- 


sUuitly  and  promptly  acquired  for  use  on  the 
other  navigational  charts  and  nautical  books 
which  the  Hydrographer  is  charged  with  pre- 
paring and  keeping  corrected  up  to  date.  The 
JPilot  Charts  were  designed  and  developed  to 
insure  the  Hydrographic  Office  obtaining  the 
various  data  shown  upon  the  printed  sheet  en- 
titled "Utilization  of  Marine  Data."  (File 
24501-24,  Mar.  8,  1911.) 

Data  furnished  by  Weather  Bureau.— 
The  meteorological  data  for  the  Pilot  Chart  have 
been  supplied  to  the  Hydrographic  Office  by 
the  Weather  Bureau  since  1905.  Prior  to  that 
time  the  meteorological  data  shown  on  Pilot 
Charts  were  obtained  by  the  Hydro^aphic 
Office,  but  in  accordance  with  the  decision  of 
the  Interdepartmental  Board  in  1904  the  work 
of  collecting  such  data  was  transferred  to  the 
Weather  Bureau.  The  data  other  than  meteoro- 
logical incorporated  in  the  Pilot  Chart  are  fur- 
nished by  observers  in  all  parts  of  the  world  in 
return  for  the  finished  charts  and  requires 
nautical  experience  for  its  proper  arrangement 
on  the  chart.     (File  24501-19,  Aug.  3,  1910.) 

Duplication  of  work.— In  1909  the  Weather 
Bureau  began  to  publish  the  Ocean  Meteor- 
ological charts,  containing  information  practi- 
cally the  same  as  is  furnished  by  the  Pilot 
Charts  of  the  Na\'y  Department.  By  the  act 
of  June  17, 1910  [above  cited],  the  Hydrographic 
Office  has  charge  of  the  publication  of  Pilot 
Charts,  making  the  proper  acknowledgment  to 
the  Weather  Bureau  for  the  meteorological 
data  secured.  Although  not  definitely  stated, 
this  provision  would  seem  to  imply  the  neces- 
sary abandonment  of  the  duplication  of  the 
work  in  the  publication  of  the  Ocean  Meteor- 
ological Charts  by  the  Weather  Bureau.  This, 
however,  was  not  the  case,  the  Chief  of  the 
Weather  Bureau  continuing,  after  the  act  men- 
tioned, to  publish  the  meteorological  chart  and 
in  fact  to  extend  its  operation  by  collecting  cer- 
tain data  also  collected  by  the  Hydrographic 
Office,  this  undoubtedly  contrary  to  the  in- 
tent of  Congress  and  certainly  contrary  to  the 
spirit  of  the  above  provision  of  law.  (File 
24501-19,  Aug.  3,  1910.) 

There  is  no  question  that  this  work  should  be 
performed  by  one  department  alone.  It  is  so 
essential  to  the  future  welfare  of  the  Navy,  and 
necessarily  requires  such  technical  supervision 
as  can  only  be  given  by  a  trained  mariner,  that 
the  Secretary  of  the  Navy  feels  sure  that  the 
work  should  be  done  by  the  Navy  Department, 
and  that  this  is  the  view  of  practically  all  the 
marine  associations  throughout  the  United 
States.  When  it  was  rumored  that  Congress 
might  possibly  abolish  the  Pilot  Charts  of  the 
Na\"y  Department,  that  department  received 
countless  letters  of  protest  and  offers  of  assist- 
ance to  retain  the  publication  of  the  Pilot 
Charts  in  the  Hydrographic  Office.  (File 
24501-19,  Aug.  3,  1910.) 

Jurisdiction,  Hydrographic  Office  and 
Weather  Bureau. — By  agreement  between 
the  Navy  Department  and  the  Department  of 
Agriculture,  relative  to  the  work  of  the  Hydro- 
graphic  Office  and  the  Weather  Bureai',  it  was 
decided : 

"(a)  That  the  Weather  Bureau  discontinue 
the  Ocean  and  Lake  Meteorological  Charts; 


388 


Navy  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.  431. 


"(b)  That  the  Hydrographic  Office  continue 
the  publication  of  the  Pilot  Charts; 

"(c)  That  the  Weather  Bureau  continue  the 
control  of  ocean  meteorology,  eo  far  as  concerns 
the  collection  of  meteorological  observations 
and  their  compilation  and  the  use  of  such  obser- 
vations in  research  work; 

"(d)  That  the  Hydrographic  Office  continue 
the  distribution  of  the  Pilot  Charts  at  its  main 
office  and  branch  offices;  and  that  it  furnish  all 
marine  obser^•ers  taking  observations  for  the 
Weather  Bureau,  and  all  regular  Weather  Bu- 
reau coast  stations,  necessary  copies  of  the 
issues  of  the  several  Pilot  Charts. 

"(e)  That  the  Weather  Bureau  furnish  all 
meteorological  data  necessary  to  the  preparation 
of  the  Pilot  Charts,  and  in  such  forms  as  may  be 
mutually  agreed  upon  between  the  two  offices, 
in  accordance  with  existing  law; 

"(f)  That  the  Hydrographic  Office  give  the 
Weather  Bureau  due  credit  on  the  Pilot  Chart 
for  the  data  thus  published,  as  required  bv 
law."     (File  24501-31,  Aug.  14,  1913.) 

Miscellaneous. — The  fact  that  sections  431- 
433,  Revised  Statutes,  require  certain  publica- 
tions to  be  prepared  at  the  Hydrographic  Office 
in  the  interest  of  the  Navy  "and  the  Mercantile 
Marine,"  gives  private  citizens,  having  to  do 
with  shipping,  interest  in  the  proper  conduct  of 
that  office.  So  far  as  the  NaAy  Department  can 
learn,  the  Hydrographic  Office  merits  and  has 
received  from  the  whole  maritime  community 
only  praise  for  its  work,  which  so  vitally  con- 
cerns the  welfare  of  our  fleet  at  sea  and  the  safe 
carriage  of  our  goods  in  mercantile  bottoms. 
(File  24501-22,  Dec.  29,  1910.) 

As  to  the  naval  service,  the  charts,  books,  and 
other  publications  of  the  Hydrographic  Office 
are  requii'ed  by  the  Navy  because  our  fleet 
could  not  safely  and  expeditiously  na\'igate  the 
high  seas  and  foreign  coasts  without  them. 
(File  24501-22,  Dec.  29,  1910.) 

The  fleet  is  dependent  upon  the  Hydrographic 
Office  for  its  charts  and  sailing  directions.  (File 
24.501-23,  Jan.  31,  1911). 

The  supply  of  charts,  sailing  directions,  and 
current  nautical  information  is  indispensable 
to  the  seagoing  ships,  and  becomes  more  and 
more  important  with  the  great  increase  in  the 
size,  value,  and  speed  of  vessels  in  the  last  few 
years.  Besides  the  Navy,  the  work  of  our 
Hydrographic  Office  is  invaluable  to  the  mer- 
chant maiine.  domestic  and  foreign,  and  its 
charts  and  publications  have  hitherto  enjoyed 
a  world-wide  reputation  for  being  second'  to 
none  in  accuracy,  scope,  reliability,  and 
promptness  of  issue — the  last  item  being  of 
equal  value  with  accuracy.  (File  24501-26:1, 
Jan.  25,  1912.) 

Tlie  Navy  Department  is  endeavoring  to 
reduce  the  number  of  foreign  charts  used  in 
our  ships,  and  the  Hydrographic  Office  will 
ultimately  produce  all  charts  needed  if  the 
requisite  money  can  be  secured.  This  is  nec- 
essary because  m  time  of  war  the  foreign  supply 
would  cease.     (File  24501-23,  Jan.  31,  1911.) 

At  all  times,  from  its  inception,  the  Hydro- 
graphic  Office  has  been  in  charge  of  and  oper- 
ated by  naval  officers.  This  is  clearly  neces- 
sary, as  the  work  of  the  office  requires  naval  as 
well  as  scientific  and  nautical  knowledge;  and 


furthermore,  the  hydrographer  and  his  assist- 
ants should  not  only  have  such  knowledge,  but 
be  capable  of  administering  the  activities  of 
the  office.  In  addition,  the  Navy  benefits  by 
the  experience  its  officers  get  in  the  Hydro- 
graphic  Office,  as  their  intimate  association 
with  the  preparation  and  issue  of  charts,  sailing 
directions,  and  navigational  works  fits  them  the 
better  to  perform  their  navigational  duties  at 
sea.     (File  24501-16,  Apr.  19,  1910.) 

Naval  officers  have  the  practical  training 
essential  to  the  superAdsion  of  the  work  of  the 
Hydrograjihic  Office,  and  it  goes  without  saying 
that  they  have  a  greater  interest  in,  and  a  larger 
feeling  of  responsibility  for,  the  accuracy  of  the 
work  than  would  civilians,  whom  it  is  impossi- 
ble to  secure  with  the  proper  ability  to  super- 
vise the  technical  work  involved.  (File 
24501-23,  Jan. 31, 1911.) 

The  preparation  of  the  charts,  books,  and 
other  publications  of  the  Hydrographic  Office 
could  not  be  intrusted  to  a  nonnavigational 
bureau,  l)ut  should  be  continued  in  the  hands 
of  capable  and  trained  naval  officers,  familiar 
with  the  requirements  of  the  navigator  and  the 
practical  use  of  these  publications.  Such  has 
been  the  custom  with  us,  and  such  is  the  un- 
varjdng  practice  under  foreign  Governments, 
for  it  is  well  recognized  that  any  other  course 
might  jeopardize  an  important  element  of 
national  defense.  (File  24501-22,  Dec.  29, 
1910.) 

Legislation  restricting  the  number  of  naval 
officers  who  may  be  detailed  to  the  Hydro- 
graphic  Office,  although  contained  in  an  annual 
appropriation  act,  is  in  effect  perpetual  and  is 
the  law  until  repealed,  such  provision  not 
being  expressly  or  otherwise  limited  in  its 
operation  to  any  particular  period  of  time. 
(File  24501-26,  July  11,  1911.  But  see  act  of 
July  1,  1918,  40  Stat.,  708,  which  removes  lim- 
itation upon  number  of  naval  officers  detailed 
to  Hydrographic  Office.) 

See  note  to  section  434,  Revised  Statutes,  as 
to  proposed  consolidation  of  Hydrographic 
Office  and  Naval  Observatory. 

An  officer  of  the  Navy  is  not  entitled 
to  the  salary  of  a  draftsman  in  the  Hydro- 
graphic  Office  in  addition  to  his  own,  though  he 
hold  both  offices.  The  office  of  draftsman  in 
the  Hydrographic  Office  is  incompatible  with 
that  of  ca^et  engineer  [now  abolished].  The 
Secretary  of  the  Na\'y  may  detail  an  engineer 
for  service  in  the  Hydrographic  Office,  but  the 
detail  will  not  entitle  the  officer  to  additional 
pay.  \Miere  two  incompatible  offices  are  held 
by  the  same  person,  to  which  are  attached  differ- 
ent salaries,  he  is  entitled  to  the  larger.  (Win- 
chell  V.  U.  S.,  28  Ct.  Cls.,  30.  In  this  case  the 
officer  was  erroneously  discharged  fi'om  the 
Na\'y',  and  thereafter  appointed  to  a  ci\dl  posi- 
tion "in  the  Hydrographic  Office.  When  later 
restored  to  the  Navy,  he  sought  to  recover  the 
pay  of  both  offices.  See  also  5  Comp.  Dec, 
88o.) 

The  purchase  of  supplies  for  the  Hydro- 
gi-aphic  Office  is  governed  by  the  laws  relating 
to  the  purchase  of  supplies  and  contracts  for  sup- 
plies "^for  any  of  the  departments  of  the  Govern- 
ment."   (21  Op.  Atty.  Gen.,  59.) 


389 


Sec.  434. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


Sec.  432.  [Maps,  charts,  etc.]  The  Secretary  of  the  Navy  is  authorized 
to  cause  to  be  prepared,  at  the  Hydrographic  Ofiice  attached  to  the  Bureau 
of  Navigation  in  the  Navy  Department,  maps,  charts,  and  nautical  books 
relating  to  and  required  in  navigation,  and  to  publish  and  furnish  them  to 
navigators  at  the  cost  of  printing  and  paper,  and  to  purchase  the  plates  and 
copyrights  of  such  existing  maps,  charts,  navigators,  saihng  directions  and 
instructions,  as  he  may  consider  necessary,  and  when  he  may  deem  it  expedient 
to  do  so,  and  under  such  regulations  and  instructions  as  he  may  prescribe. — 
(21  June,  1866,  c.  129,  s.  2,  v.  14,  p.  69.) 


See  note  to  section  431,  llevised  Statutes. 

This  section  was  reenacted  by  act  of  January  12, 
1895,  section  77  (28  Stat.,  621),  as  follows: 
"The  Secretary  of  the  Na\^  is  authorized 
to  cause  to  be  prepared  at  the  Hydro- 
graphic  Office  attached  to  the  Bureau  of 
Navigation,  in  the  Navy  Department, 
maps,  charts,  and  nautical  books  relating 
to  and  required  in  navigation,  and  to  pub- 


lish and  furnish  them  to  navigators  at  tlie 
cost  of  printing  and  paper,  and  to  purchase 
the  plates  and  copyiights  of  such  existing 
maps,  charts,  navigators'  sailing  directions 
and  instructions  as  he  may  consider  neces- 
sary and  when  he  may  deem  it  expedient 
to  do  so,  and  under  such  regulations  and 
instructions  as  he  may  prescribe." 


Sec.  433.  [Money  received  from  sale  of  maps,  charts,  etc.]  All  moneys 
which  may  be  received  from  the  sale  of  maps,  charts,  and  nautical  books  shall 
be  returned  by  the  Secretary  of  the  Navy  into  the  Treasury  of  the  United 
States,  to  be  used  in  the  further  preparation  and  publication  of  maps,  charts, 
navigators,  sailing  directions,  and  instructions  for  the  use  of  seamen,  to  be  sold 
at  the  rates  as  set  forth  in  the  preceding  section. —  (21  June,  1866,  c.  129,  s.  3, 
V.  14,  p.  69.) 


See  note  to  section  431,  Revised  Statutes. 

This  section  was  reenacted  by  act  of  January  12, 
1895,  section  77  (28  Stat.,  621),  as  follows: 
"All  moneys  which  may  be  received  from 
the  sale  of  maps,  charts,  and  nautical  books 
shall  be  paid  by  the  Secretary  of  the  Navy 
into  the  Treasury  of  the  United  States,  to 
be  used  in  the  further  preparation  and  pub 


lication  of  maps,  charts, 


navigators 


sailing 


directions,  and  instructions  for  the  use  of 
seamen,  to  be  sold  at  the  cost  of  printing 
and  paper." 
It  was  amended  by  act  of  May  29,  1920  (41 
Stat.,  665),  which  provided  that  receipts 
from  sales  of  publications  "shall  be  cov- 
ered into  the  Treasury  of  the  United  States 
as  miscellaneous  receipts." 


Sec.  434.  [Naval  Observatory.]  The  officer  of  the  Navy  employed  as  super- 
intendent of  the  Naval  Observatory  at  Washington  shall  be  entitled  to  receive 
the  shore-duty  pay  of  his  grade,  and  no  other. — (3  Mar.,  1865,  c.  114,  v.  13,  p. 
533.) 


American  Ephemeris  and  Nautical  Almanac: 
Publication  of,  by  the  Naval  Observatory,  is 
authorized  by  Article  1-604  (3  a).  Naval 
Instructions,  1913.  Assignment  of  a  pro- 
fessor of  mathematics  to  duty  at  the  Naval 
Observatory  in  charge  of  the  Nautical  Al- 
manac is  provided  for  by  Article  R-3111, 
Navy  Regulations,  1913.  (See  sec.  436, 
R.  S.) 

Appointment  or  detail  to  office  of  astronomical 
director,  director  of  the  Nautical  Almanac, 
astronomer,  or  assistant  astronomer  may  be 
made  upon  recommendation  of  the  Board  of 
Visitors  to  the  Naval  Observatory.  (Act 
Mar.  3,  1901,  31  Stat.,  1122.) 

Board  of  Visitors  to  the  Naval  Observatory  is  to 
be  appointed  by  the  President,  by  and  with 
the  adA-ice  and  consent  of  the  Senate,  for  a 


period  of  three  years  without  compensation 
other  than  actual  expenses;  four  members 
to  be  astronomers  of  high  professional  stand- 
ing and  two  members  eminent  citizens  of 
the  United  States.  (Act  Mar.  8,  1901,  31 
Stat.,  1122.) 

Library  of  Naval  Observatory  may  have  books 
for  its  exclusive  use  bound  in  half  Turkey 
or  material  no  more  expensive.  (Act  Jan. 
12,  1895,  sec.  86,  28  Stat.,  622.) 

01)servatory  Circle:  No  street,  avenue,  or  pub- 
lic thoroughfare  shall  extend  within  the 
area  of  a  circle  described  with  a  radius  of 
1,000  feet  from  the  center  of  the  building 
known  as  the  clock  room  of  the  observatory. 
(Res.,  Aug.  ] ,  1894,  28  Stat.,  588.) 

Printing  authorized  of  1,800  additional  copies 
of  the  Observations  of  the  Naval  Observa- 


390 


Navy  Department. 


Pt.2.  REVISED   STATUTES. 


Sec.  436. 


tory,  of  which  800  shall  be  for  distribution 

by  the   Naval  Observatory,  and  the  re- 
mainder for  the  Senate  and  House;  arid 

of   the   astronomical  appendixes    to  said 

observations,  1,200  separate   copies,  and 

of  the  meteorological   and   magnetic  ob- 

serA-ations,  1,000  copies,  shall  be  printed  for 

distribution  by  the  Naval  Observatory. 

(Act  Jan.  12,  1895,  sec.  73,  28  Stat.,  613.) 
Professors  of  mathematics  shall  perform  such 

duties  at  the  Naval  Observatory  as  may  be 

assigned  them  by  order  of  the  Secretary  of 

the  Navy.     (Sec.  1401,  R.  S.) 
Public  Printer  shall  fiu-nish  one  bound  copy  of 

the  Congressional  Record  gratuitously  to 

the  Naval  Observatory.     (Act  Jan.  12,1895, 

sec.  73,  28  Stat.,  617.) 
Regulations  prescribing  scope  of  astronomical 

and  other  researches  of  the  Observatory  and 

duties  of  its  staff  shall  be  prepared  and  sub- 
mitted to  the  Secretary  of  the  Navy  by  the 

Board  of  Visitors.     (Act  Mar.  3,  1901,  31 

Stat.,  1122.) 
Report  to  the  Secretary  of  the  NaA^y  shall  be 

made  at  least  once  each  year  by  the  Board 

of  Visitors  respecting  condition  of  build- 
ings,  instruments,   apparatus,   efficiency, 

and     expenditures    of    the    observatory 

(Act Mar.  3, 1901,  31  Stat.,  1122.) 

Scientific  investigators  and  students  of  certain 
educational  institutions  shall  be  afforded 
the  facilities  of  the  Naval  Observatory  for 
research  and  illustration,  under  such  re- 
strictions as  the  officers  in  charge  may  pre- 
scribe. (Res.,  Apr.  12, 1892,  27  Stat.,  395.) 
They  shall  similarly  be  afforded  facilities 
for  study  and  research  in  the  Government 
departments  under  such  restrictions  as 
heads  of  departments  may  prescribe. 
(Act  Mar.  3,  1901,  31  Stat.,  1039.) 

Superintendent  of  the  Naval  Observatory  shall 
be  a  line  officer  of  the  Navy  not  below  the 
rank  of  captain.  (Act  Mar.  3,  1901,  31 
Stat.,  1122.) 

A  superintendent  of  the  Naval  Observa- 
tory, "who  shall  be  either  a  captain,  com- 
mander, or  lieutenant  in  the  Navy,"  at  a 
salary  of  $3,000  per  annum,  was  authorized  by 
act  of  March  3,  1847  (9  Stat.,  169),  as  amended 
by  act  of  Aug.  3,  1848  (9  Stat.,  266). 

This  provision  as  to  the  rank  of  the  super- 
intendent was  repealed  by  act  of  March  3,  1865 
(13  Stat.,  533),  which  act  further  provided  that 
,'no  officer  of  the  Navy  employed  as  super- 

Sec.  435.  [Meridians.     Repealed.] 

This  section  provided  as  follows: 

"Sec._485.  The  meridian  of  the  Observatory 
at  Washington  shall  be  adopted  and  used  as  the 
American  meridian  for  all  astronomical  pur- 
poses, and  the  meridian  of  Greenwich  shall  be 

Sec.  436.  [Nautical  Almanac]  The  Secretary  of  the  Navy  may  place  the 
supervision  of  the  Nautical  Almanac  in  charge  of  any  officer  or  professor  of 
mathematics  in  the  Navy  who  is  competent  for  that  service.  Such  officer  or 
professor,  when  so  employed,  shall  be  entitled  to  receive  the  shore-duty  pay 
of  his  grade,  and  no  other.— (3  Mar.,  1857,  c.  Ill,  s.  3,  v.  11,  p.  246.) 


intendent  shall  receive  other  than  the  shore 
duty  pay  of  his  grade." 

The  superintendent  should  be  carefully 
selected  with  reference  to  special  fitness, 
and  there  can  be  no  doubt  that  there  can  al- 
ways be  found  officers  in  the  Navy  competent 
to  administer  this  institution,  which  had  its 
beginnings  through  the  ability  and  zeal  of  naval 
officers,  as  also  its  rise  to  high  eminence.  Dis- 
tinction in  astronomy  does  not  by  any  means 
go  to  show  that  its  possessor  will  be  a  good  ad- 
ministrator. The  most  eminent  astronomer  that 
France  has  produced  was  an  utter  failure  in  the 
administration  of  the  National  Observatory  at 
Paris,  and  was  succeeded  by  an  admiral  of  the 
Navy,  under  whose  direction  it  was  excellently 
administered.     (File  5331,  Sept.  7,  1894.) 

The  regular  work  of  the  Naval  Observa- 
tory is  essential  to  the  Navy;  it  can  be  sys- 
tematically and  successfully  accomplished  only 
under  Government  control;  and  no  portion  of 
it  should  be  discontinued  or  transferred  to  other 
than  the  control  of  the  Navy  Department.  The 
observations  made  in  addition  to  those  neces- 
sary for  the  regular  work  are  of  more  interest  to 
astronomers,  do  not  interfere  with  the  regular 
work,  and  should  be  continued.  (File  15924, 
Apr.  3,  1903.) 

Both  the  Naval  Observatory  and  the 
Hydrographic  OfiB.ce  are  employed  in  supply- 
ing the  fleet  with  na\'igation  equipment,  both 
are  concerned  in  the  instruction  of  navigators; 
the  Hydrographic  Office  controls  the  marine 
survejdng  parties,  yet  the  Observatory  provides 
and  attends  to  the  repairing  of  instruments  for 
them,  instructs  surveying  officers  in  the  use 
of  astronomical  instruments^  and  cooperates 
with  them  in  the  determination  of  longitudes. 
In  numerous  ways  the  two  institutions  have 
unity  of  interests  and  should  harmonize  and 
strengthen  each  other  imder  one  management. 
(File  26509-97,  Feb.  4,  1913,  recommending 
legislation  "for  consolidating  the  activities  of 
the  Naval  Observatory  and  Hydrographic  Of- 
fice." See  sec.  431,  R.  S.,  for  law  relating  to 
Hydrographic  Office.) 

The  Naval  Observatory  is  a  naval  sta- 
tion, and  the  Superintendent  of  the  Naval 
Observatory  is  the  commandant  of  a  naval  sta- 
tion within  the  meaning  of  the  act  of  Janu- 
ary 25,  1895  (28  Stat.,  639),  "authorizing  cer- 
tain officers  of  the  Navy  and  Marine  Corps  to 
administer  oaths,  "  as  amended  by  the  act  of 
March  3, 1909  (31  Stat.,  1086).  (File  19037-45, 
May  26,  1914.) 


adopted  for  all  nautical  purposes." — 28  Sept., 
1850,  c.  80,  s.  1,  V.  9,  p.  515. 
It  was  repealed  bv  act  of  August  22,  1912 

(37  Stat.,  342). 


391 


Sec.  436. 


PL  2.  REVISED  STATUTES. 


Navy  Department. 


Assignmoiit  of  a  profossor  of  matheinatii-s  to 
duty  at  the  >iaval  Observatory  in  cliarge 
of  Xho  Nautiral  Alinanar,  is  provided  for 
by  Article  R-:il  1 1 .  Navy  Hogulations,  1913. 
Director  of  the  Nautical  Almanac  may  be  rec- 
ommended for  appointment  by  the  Board 
of  \'isitors  to  the  Naval  Observatory.  (Act 
Mar.  3, 1901.  31  Stat.,  1122.) 
Employees  of  Nautical  Almanac  Office  whose 
ser\-ices  can  be  spared  from  duty  of  pre- 
paring for  publication  the  annual  volumes 
of  the  American  Ephemeris  and  Nautical 
Almanac,  may  be  employed  by  said  office 
in  duty  of  improving  the  tables  of  the 
planet.s,  moon,  and  stars,  to  be  used  in 
preparing  for  publication  the  annual  vol- 
umes of  the  office.  (Act  Aug.  22,  1912,  37 
Stat.,  342.) 
Exchange  of  data  with  foreign  almanac  offices 
may  be  arranged  for  by  the  Secretary  of  the 
Na^^,  any  such  arrangement  to  be  termin- 
able on  one  year's  notice;  the  work  of  the 
Nautical  Almanac  Office  to  be  so  conducted 
that  in  case  of  emergency  the  entire  portion 
of  the  work  intended  for  the  use  of  na^'iga- 
tors  may  be  computed  by  it,  without  for- 
eign cooperation.  (Act  Aug.  22,  1912,  37 
Stat.,  342.) 
Printing  is  authorized  of  1,500  cof>ies  of  Ephem- 
eris and  Nautical  Almanac,  in  addition  to 
the  "usual  number" — 500  copies  to  be  for 
use  of  Senate  and  House,  and  1,000  copies 
for  distribution  or  sale  by  the  Navy  De- 
partment (act  Jan.  12,  1895,  sec.  73,  28 
Stat.,  613).  "Usual  number"  of  American 
Ephemeris  and  Nautical  Almanac  is  not  to 
be  printed;  in  lieu  thereof,  1,100  copies  of 
same  shall  be  printed  and  bound,  uniform 
^vith  the  editions  printed  for  the  Navy  De- 
partment— 500  copies  for  Senate  and  House 
and  600  for  Superintendent  of  Documents 
for  distribution  to  State  and  Territorial  li- 
braries and  designated  depositories  (res., 
May  13,  1902,  32  Stat.,  740);  2,500  copies  of 
American  Ephemeris  and  Nautical  Al- 
manac are  to  be  pu]:>lished — 1,500  copies  for 
the  Senate  and  House  and  1,000  for  dis- 
tribution or  sale  by  the  Navy  Department 
(act  July  1,  1902,  32  Stat. ,  678).  Secretary 
of  the  Navy  is  authorized  to  have  additional 
copies  of  the  Ephemeris  and  of  the  Nautical 
Almanacs  extracted  therefrom,  printed  for 
the  public  service  and  for  sale  to  navigators 
and  others.  All  moneys  received  from 
sale  of  the  Ephemeris  and  of  the  Nautical 
Almanacs  shall  be  deposited  in  the  Treas- 
ury and  placed  to  the  credit  of  the  general 
fund  for  public  printing  (act  Jan.  12, 
1895,  sec.  73,  28  Stat.,  613). 
Professor  of  Mathematics,  corps  shall  cease  to 
exist:  See  note  to  section  1399,  Revised 
Statutes. 
The  first  statute  relating  to  the  Nautical 
Almanac  was  ihe  act  of  March  3,  1849  (9  Stat., 
375),  providing  that  "a  competent  officer  of 
the  Navy,  not  below  the  grade  of  lieutenant, 
be  charged  with  the  duty  of  preparing  the 
Nautical  Almanac  for  publication." 

By  act  of  August  5,  1854  (10  Stat.,  583),  it  was 
provided  that  "any  naval  officer  who  may  be 
charged  with  the  preparation,  superintendence, 
or  publication  of  the  Nautical  Almanac,  shall 


receive  no  compensation  for  such  duty  beyond 
what  he  would  receive  while  on  duty  at  sea." 
Further  provisions  on  the  subject  were  con- 
tained in  the  act  of  March  3,  1857,  upon  which 
the  above  section  of  the  Revised  Statutes  is 
ba.«od . 

Nautical  Almanac  Office  a  department 
of  the  Naval  Observatory. — The  Regulations 
of  the  United  States  Naval  Observatory,  ap- 
proved by  the  Secretory  of  the  Navy  January 
25,  1904,  provide  in  partasfollows:  "TheNaval 
Observatory,  under  the  control  of  the  Secretary 
of  the  Navy,  is  subject  to  the  direct  supervision 
of  the  Bureau  of  Equipment  [now  Bureau  of 
Navigation],  Navy  Department,  and  shall  be 
governed  in  accordance  with  the  U.  S.  Navy 
Regulations  relating  to  the  general  admin- 
istration of  shore  stations  where  applicable" 
(par.  1);  "the  observatory  work  shall  be  divided 
into  two  branches,  astronomical  and  nautical. 
The  first  shall  include  *  *  *  the  depart- 
ment of  the  Nautical  Almanac  "  (par.  3);  "there 
shall  be  *  *  *  a  director  of  the  Nautical 
Almanac  *  *  *"  (par.  5);  "the  Superin- 
tendent of  the  Naval  Observatory  *  *  * 
shall  exercise  entire  control  over  every  depart- 
ment of  the  observatory  *  *  *"  (par.  7); 
"he  [the  superintendent  of  the  observatory] 
shall  have  charge  of  and  be  responsible  for  the 
direction,  scope,  character,  quantity,  and 
preparation  for  publication  of  all  work  which 
IS  performed  at  the  Naval  Observatory  *  *  *" 
(par.  9) ;  "  the  director  of  the  Nautical  Almanac 
shall  be  held  directly  responsible  to  the  super- 
intendent for  the  preparation  and  publication 
of  the  Nautical  Almanac  and  Ephemorides  for 
use  of  naval  vessels,  merchant  vessels,  and  for 
astronomical  purposes,  as  provided  for  by  law 
and  the  regulations  and  orders  of  the  Navy 
Department"  (par.  17).  These  regulations  and 
others  in  line  therewith,  which  make  the  Nauti- 
cal Almanac  Office  a  department  of  the  observ- 
atory, and  place  the  supervision  thereof  in 
charge  of  the  superintendent  of  that  institution, 
the  department  regards  as  within  its  power  to 
prescribe  under  the  authority  conferred  upon  the 
Secretary  of  the  Navy  by  sees.  419  and  436  of 
the  Revised  Statutes,  relating,  respectively,  to 
the  distribution  of  the  business  of  the  Navy 
Department  and  the  superintendence  of  the 
Nautical  Almanac.  The  fact  that  the  Nautical 
Almanac  Office  is  appropriated  for  separately 
in  the  annual  legislative,  executive,  and  judi- 
cial appropriation  act  does  not,  it  is  believed, 
constitute  it  a  separate  shore  station,  and  its 
treatment  as  such  would  appear  to  be  incom- 
patible with  its  status  as  fixed  by  the  regulations 
above  mentioned.  It  may  be  added  that  the 
department's  recent  order,  gi^^ng  the  present 
superintendent  of  the  observatory,  as  such, 
"charge  of  the  supervision  of  the  Nautical 
Almanac,"  establishes  his  authority  in  matters 
pertaining  to  that  work  independently  of  the 
regulations  cited.     (File  9449-04,  Jan.  19,  1905.) 

The  fact  that  the  Nautical  Almanac  was  in- 
tended to  become  an  integral  part  of  the  Naval 
Observatory  is  established  Ijy  the  regulations 
issued  by  the  Secretary  of  the  Navy,  Septem- 
ber 20,  1894,  and  by  those  approved  January 
25,  1904.  There  is  no  question  that  in  the  early 
days  of  the  existence  of  the  Nautical  Almanac 
it  was  recognized  as  quite  distinct  and  separate 


392 


Navy  Department. 


Pt.  2.  REVISED  STATUTES. 


Sec.  436. 


from  the  Naval  Observatory,  l)ut  the  removal  of 
that  office  to  the  Observatory  buildings  and  the 
issuance  of  regulations  making  it  a  liranch  of 
the  Naval  Observ^atory  soon  after  such  removal, 
changed  it  to  a  department  of  the  Naval  Obser- 
vatory. (File  17626,  and  9449-04,  March  18, 
1904,  letter  of  Superintendent  of  the  Naval  Ob- 
servatory.) 

The  fact  that  the  appropriations  for  the  Naval 
Observatory  and  the  Nautical  Almanac  Office 
ha^•e  continued  since  the  amalgamation  of  the 
two  departments  in  1894,  to  be  provided  for 
separately  has  caused  some  question  in  dealing 
with  other  departments  of  the  Government, 
in  view  of  which  the  recommendation  of  the 
Superintendent  of  the  Naval  Observ^atory  as  to 
change  in  the  appropriations  to  conform  to  the 
existing  regulations  was  approved  by  the  Sec- 
retary of  the  Navy.  (File  18168-25,  and 
9449-04,  Dec.  2,  1904;  and  17279-3,  May  11, 
1905.) 

The  Na\'y  Department  has  estalslished  the 
Nautical  Almanac  as  a  department  of  the  Naval 
Obsers'atory,  and  appointed  the  Superintend- 
ent of  the  Naval  Observ'atory  as  super\'isor  of 
the  Nautical  Almanac  in  accordance  with  sec- 
tion 436 ,  Revised  Statutes .  There  seems ,  there- 
fore, no  warrant  for  styling  the  head  of  the  de- 
partment of  the  Nautical  Almanac  as  the  "Di- 
rector of  the  Nautical  Almanac."  (File  17279- 
3,  May  11,  1905,  letter  of  Superintendent  of  the 
Naval  Obser\-atory.) 

The  Director  of  the  Nautical  Almanac  in- 
vited attention  to  the  fact  that  the  Na\'y  Regis- 
ter of  January,  1904,  did  not,  as  did  those  for 
the  preceding  17  years,  make  mention  of  the 
Nautical  Almanac  Office  as  a  separate  shore  sta- 
tion, and  to  the  fact  that  his  "present  duty" 
was  given  in  that  Register  as  "Naval  Observa- 
tory" instead  of,  asformerly,  '•  Director  Nautical 
Almanac,"  and  requested  that  in  subsequent 
issues  of  the  Navy  Register  the  Nautical  Al- 
manac Office  be  restored  to  its  former  status: 


Held,  That  the  Navy  Register,  in  the  particu- 
lars mentioned,  is  not  regarded  as  in  error, 
and  the  department  is  therefore  constrained  to 
deny  the  request  that  in  subsequent  issues  the 
changes  suggested  be  made.  (File  9449-04, 
and  17626.  Jan.  19,  1905.) 

Supervision  of  Nautical  Almanac  can 
not  be  limited  to  line  officers.— A  regulation 
providing  that  "a  line  officer  not  below  the  rank 
of  captain  shall  be  assigned  by  the  Secretary  of 
the  Navy  as  superintendent  of  the  Naval  Ob- 
servatory," and  that  "in  his  charge  shall  also 
be  placed  the  supervision  of  the  Na.utical 
Almanac, "  in  so  far  as  the  latter  portion  thereof 
is  concerned,  would  be  illegal,  as  it  would  place 
upon  the_  super\dsion  of  the  Nautical  Almanac 
a  restriction  not  prescribed  by  law,  to  wit,  that 
it  should  be  under  "a  line  officer  not  below  the 
rank  of  captain,"  whereas  the  law  (sec.  436, 
R.  S.)  leaves  the  super\ision  of  the  publication 
open  to  "a»y  officer  or  professor  of  mathematics 
in  the  Navy  who  is  competent  for  that  service . ' ' 
(File  1112-04,  Feb.  12,  1904;  17279-2,  Feb.  13, 
1904;  see  also  note  to  sec.  161,  R.  S.) 

A  nautical  almanac  is  well  known  to  be 
a  book.  It  is  a  "nautical  book"  of  the  sort 
mentioned  in  section  432  of  the  Revised  Stat- 
utes. The  machinery'  by  which  the  Secretary 
is  authorized  from  year  to  year  to  have  this 
book  made  is  to  be  found  in  section  3661  of  the 
Revised  Statutes  in  connection  with  annual  re- 
ports by  and  appropriations  for  that  officer. 
By  this  pro\'ision  the  Secretary  is  to  submit  to 
Congress  an  estimate  ' '  for  printing  and  binding 
to  be  executed  under  the  direction  of  the  Con- 
gressional Printer."  Accordingly,  held,  that 
the  printing  and  binding  at  tfie  Government 
Printing  Office  of  the  book  called  "The  Amer- 
ican Ephemeris  and  Nautical  Almanac  "  for  the 
Na\'y  Department,  are  within  the  appropria- 
tion made  for  printing  and  binding  for  that 
department,  and  accordinglv  are  authorized  b> 
law.     (16  Op.  Atty.  Gen.,  127.) 


393 


TITLE   XL 
THE  DEPARTMENT  OF  THE  INTERIOR. 


Sec. 
437. 

441. 
442. 
470. 


Establishment  of   Department  of  the  In- 
terior. 
Duties  of  Secretary. 
Duties  concerning  territories. 
Commissioner  of  Pensions. 


Sec. 
471. 
512. 
513. 
514. 
515. 


Duties  of  Commissioner. 

Retiu"ns  Office. 

Clerk  to  file  returns. 

Indexes. 

Copies  of  returns. 


Sec.  437.  [Establishmeiit  of  Departmenc  of  the  Interior.]  There  shall  be  at 
the  seat  of  Government  an  Executive  Department  to  be  known  as  the  Depart- 
ment of  the  Interior,  and  a  Secretary  of  the  Interior,  who  shall  be  the  head 
thereof.— (3  Mar.,  1849,  c.  108,  s.  1,  v.  9,  p.  395.) 

Origin  and  growth  of  executive  departments — see  note  to  section  158  Revised  Statutes, 

Sec.  441.  [Duties  of  Secretary.]  The  Secretary  of  the  Interior  is  charged 
wi th  the  supervision  of  pubhc  business  relating  to  the  following  subj ects ;    *    *    * 

Second.  The  public  lands,  including  mines. 

Third.  The  Indians. 

Fourth.  Pensions  and  bounty-lands. 

Fifth.  Patents  for  inventions.     *     *     * 

Seventh.  Education. 

Eighth.  Government  Hospital  for  the  Insane. 

Ninth.  Columbia  Asylum  for  the  Deaf  and  Dmnb. — (3  Mar.,  1849,  c.  108, 
ss.  3,  5,  6,  7,  8,  9,  v.  9,  p.  395;  8  July,  1870,  c.  230,  s.  1,  v.  16,  p.  198;  5  Feb., 
1859,  c.  22,  s.  1,  T.  11,  p.  379;  20  July,  1868,  c.  176,  s.  1,  v.  15,  pp.  92,  106; 
Maguire  v.  Tyler,  1  Bl.,  195.) 


Govermnent  Hospital  for  the  Insane. — 

The  designation  of  this  institution  was  changed 
to  "Saint  Elizabeths  Hospital "  by  act  of  July 


1,  1916  (39  Stat.,  309).     See  sections  4838- 
4843,  Revised  Statutes,  and  notes  thereto. 


Sec.  442.  [Duties  concerning  Territories.]  The  Secretary  of  the  Interior 
shall  hereafter  exercise  all  the  powers  and  perform  all  the  duties  in  relation  to 
the  Territories  of  the  United  States  that  were,  prior  to  March  first,  eighteen 
himdred  and  seventy-three,  by  law  or  by  custom  exercised  and  performed 
by  the  Secretary  of  State.— (1  Mar.,  1873,  c.  217,  v.  17,  p.  484.) 


Guam  and  Samoa. — On  and  after  June  1, 
1907,  all  official  communications  from  and  to 
executive  officers  of  the  Territories  and  terri- 
torial possessions,  including  Samoa  and  Guam, 
shall  be  transmitted  through  the  Secretary  of 
the  Interior  in  such  manner  and  under  such 
regulations  as  he  may  prescribe.  (Exec.  0., 
May  11,  1907.) 

It  will  be  entirely  satisfactory  to  the  Interior 
Department  to  receive  copies  of  the  official 


reports  relative  to  Guam  and  Samoa  instead  of 
the  originals  direct.  (File  21393-26,  June  4, 
1907.) 

The  governors  of  Guam  and  of  Tutuila, 
Samoa,  are  directed  to  forward  all  reports,  etc., 
relating  to  territorial  matters,  as  distinguished 
from  matters  of  purely  naval  administration,  to 
the  Navy  Department  in  duplicate  in  order  that 
one  copy  may  be  forwarded  to  the  Secretary 
of  the  Interior.    (File  21393-26,  June  6, 1907.) 


54641°— 22- 


-26 


395 


Sec.  471. 


PL  2.  REVISED  STATUTES. 


Interior  Department. 


Sec.  470.  [Commissioner  of  Pensions.]  There  shall  be  in  the  Department 
of  the  Interior  a  Commissioner  of  Pensions,  who  shall  be  appointed  by  the 
President,  by  and  with  the  advice  and  consent  of  the  Senate,  and  shall  be  en- 
titled to  receive  a  salary  of  four  thousand  dollars  a  3^ear. — (2  Mar.,  1833,  c.  54, 
s.  1,  V.  4,  pp.  619,  622;  3  Mar.,  1835,  c.  46,  ss.  1,  2,  3,  v.  4,  p.  779;  3  Mar.,  1837, 
c.  43,  V.  5,  p.  187;  4  Mar.,  1840,  c.  4,  ss.  1,  2,  3,  v.  5,  p.  369;  4  Mar.,  1840,  c.  4, 
s.  4,  V.  5,  p.  370;  20  Jan.,  1843,  c.  4,  v.  5,  p.  597;  14  Jan.,  1846,  c.  4,  s.  1,  v.  9, 
p.  3;  19  Jan.,  1849,  c.  20,  s.  1,  v.  9,  p.  341;  3  Mar.,  1873,  c.  226,  s.  3,  v.  17,  p. 
508.) 

This  section  has  been  amended  with  reference  to  the  salary  of  the  Commissioner. 

Sec.  471.  [Duties  of  Commissioner.]  The  Commissioner  of  Pensions  shall 
perform,  under  the  direction  of  the  Secretary  of  the  Interior,  such  duties  in 
the  execution  of  the  various  pension  and  bounty-land  laws  as  may  be  pre- 
scribed by  the  President.— (2  Mar.,  1833,  c.  54,  s.  1,  v.  4,  pp.  619,  622;  3  Mar., 
1835,  c.  46,  s.  2,  v.  4,  p.  779;  3  Mar.,  1837,  c.  43,  s.  2,  v.  5,  p.  187;  4  Mar.,  1840, 
c.  4,  s.  2,  V.  5,  p.  369;  4  Mar.,  1840,  c.  4,  s.  4,  v.  5,  p.  370;  20  Jan.,  1843,  c.  4, 
s.  2,  V.  5,  p.  597;    19  Jan.,  1877,  c.  27,  v.  19,  p.  224.) 


Service  pensions  to  disabled  enlisted  men  are  to 
be  granted  under  the  direction  of  the  Sec- 
retary of  the  Navy.    (Sees.  4756^757,  R.  S.) 

Jurisdiction,  Commissioner  of  Pen- 
sions.— Requests  for  information  concerning 
pensions  should  be  addressed  to  the  Commis- 
sioner of  Pensions,  under  whose  jurisdiction 
lies  the  authority  of  granting  pensions  to  claim- 
ants and  deciding  questions  of  law  and  fact 
relative  thereto.  (File  26250-709:1,  Jan.  5, 
1916;  see  also  file  26510-1247.) 

The  law  (act  of  May  11,  1912,  37  Stat.,  112) 
requires  proof  of  the  length  of  service  of  pen- 
sion claimants  to  be  made  "according  to  such 
rules  and  regulations  as  the  Secretary  of  the 
Interior  may  provide."  This  language  is 
similar  to  that  contained  in  the  act  of  August 
5.  1892,  under  which  it  Avas  held  by  the  Interior 
Department  (16  P.  D.,  492,  493)  that  evidence 
as  to  whether  a  person  rendered  the  required 
service  "must  be  considered  and  passed  upon 
by  the  Commissioner  of  Pensions,  subject  only 
to  the  superAisory  jurisdiction  of  the  Secretary 
of  the  Interior;"  that  where  the  evidence  con- 
cerning claimant's  length  of  service  is  indefi- 
nite and  contradictory,  "the  record  is  not  con- 
clusive either  as  to  the  length  or  character  of 
the  emplojTuent;"  and  that  "the  fact  of  such 
Ber\dce,  or  emplojmient,  may  be  proved  by  any 
competent  witness,  whether  officer,  enlisted 
man,  or  civilian."  (File  26510-1214,  Sept.  2. 
1915.) 

^  The  exclusive  jurisdiction  of  the  Commis- 
sioner of  Pensions  to  determine  all  such  ques- 
tions, under  the  direction  of  the  Secretary  of 
the  Interior,  was  again  expressed  by  the  Assist- 
ant Secretary  of  the  Interior  (18  P.  D.,  480)  as 
follows:  "It  is  the  duty  of  the  Commissioner  of 
Pensions  to  jiidge  and  determine  all  applica- 
tions for  pensions  and  to  construe  and  interpret 
all  questions  which  may  arise  as  to  the  con- 
struction of  the  several  acts  of  Congress  relating 
to  pensions;  and  said  officer  is  the  exclusive 
judge  of  the  law  and  the  facts  in  all  cases  within 
the  scope  of  hia  authority,  subject  only  to  the 


direction  of  the  Secretary  of  the  Interior 
Thus,  acting  under  the  direction  of  the  Secre- 
tary of  the  Interior,  the  Commissioner  of  Pen- 
sions constitutes  a  special  tribunal  for  the  adju- 
dication of  pension  claims,  and  his  judgments, 
awards,  and  decrees  in  such  claims  are  final; 
they  are  in  the  nature  of  judicial  decrees  which 
necessarily  conclude  the  rights  of  all  persons 
within  the  scope  of  his  authority."  See  also 
19  P.  D.,  269,  272,  and  cases  there  cited.  (File 
26510-1214,  Sept.  2,  1915.) 

In  19  P.  D.,  188,  the  decision  of  the  War  De- 
partment that  the  death  of  a  soldier  occurred 
in  line  of  duty  was  rejected  by  the  Commis- 
sioner of  Pensions.  On  appeal,  the  action  of 
the  Commissioner  of  Pensions  was  reversed  by 
the  Assistant  Secretary  of  the  Interior,  who, 
nevertheless,  stated:  "This  department  does 
not — can  not,  under  the  law — accept  the  con- 
clusion that  this  soldier  was  in  line  of  duty  when 
he  was  killed  merely  because  the  War  Depart- 
ment so  holds.  It  does,  however,  upon  the 
facts  in  the  case,  conclude  that  *  *  * 
he  is  held  for  pensionable  purposes  to  have 
been  in  line  of  duty  when  he  met  his  death." 
(File  26510-1214,  Sept.  2,  1915.) 

In  answer  to  inquiries,  the  Navy^  Department 
should  furnish  the  Commissioner  of  Pensions 
with  all  facts  of  record  bearing  upon  the  serv- 
ice of  claimants,  leaA-ing  the  determination  of 
doubtful  questions  and  the  drawing  of  infer- 
ences from  such  facts  to  the  jurisdiction  of  the 
Pension  Bureau,  which  is  claimed  by  the  In- 
terior Department  in  the  decisions  above  cited 
to  be  exclusive.  The  law,  as  interpreted  by 
the  Interior  Department,  ha^dng  made  it  the 
duty  of  the  Commissioner  of  Pensions  and  his 
superiors  to  decide  all  questions  of  Imo  and  fact 
which  may  be  involved  in  pension  claims,  the 
Navy  Department  should  not  be  called  upon 
to  render  an  "opinion  "  upon  such  questions  for 
the  information  or  guidance  of  another  depart- 
ment of  the  Government  which  claims  that  its 
jurisdiction  thereof  is  exclusive.  (File  26510- 
1214,  Sept.  2,  1915.) 


396 


Interior  Department. 


Pt.2.  REVISED  STATUTES. 


Sec.    512. 


Where  the  records  are  incomplete,  the  estab- 
lishment therefrom  of  a  definite  date  when  an 
enlisted  man  should  be  regarded  as  having  been 
discharged  from  the  Navy  during  the  Civil  War 
"would  at  best  be  merely  a  matter  of  conjec- 
ture." Whether  or  not  such  man  was  dis- 
charged, and  if  so,  on  what  date,  is  a  question 
of  fact  which  may  be  established  by  competent 
e\'idence  in  any  case  in  which  it  becomes  neces- 
sary to  decide  such  question.  _  However,  where 
a  claim  is  filed  and  pending  in  the  Bureau  of 
Pensions,  this  does  not  present  a  case  pending 
before  the  Navy  Department^ which  requires  a 
decision  of  this  question,  but  is  a  case  requiring 
determination  thereof  by  the  Bureau  of  Pen- 
sions. Accordingly,  held  that  the  Navy  De- 
partment can  not  with  propriety  render  a  deci- 
sion as  to  the  date  when  said  man  should  be 
regarded  as  having  been  discharged  from  the 
Navy  for  pension  purposes,  first,  because  the 
records  of  the  Navy  Department  do  not  dis- 
close this  fact;  second,  because  the  evidence 
submitted  on  this  point  is  contradictory;  third, 
because  the  determination  of  this  question, 
upon  the  facts  shown  l^y  the  records  of  the  Navy 
and  Treasury  Departments  and  evidence  sub- 
mitted by  the  claimant,  is  a  question  which, 
under  the  law  as  interpreted  by  the  Interior 


Department,  is  within  the  exclusive  jurisdic- 
tion of  the  Commissioner  of  Pensions,  subject 
only  to  the  direction  of  his  official  superiors. 
(File  26510-1214,  Sept.  2,  1915.  In  this  con- 
nection, see  War  Department  Circular  of  Nov. 
2,  1901,  pul)lishing  clecision  of  the  Secretary  of 
War  (Mr.  Root)  concerning  the  powers  of  the 
Secretary  of  War  and  the  authority  which  had 
been  attempted  to  be  exercised  by  subordinate 
officers  of  other  departments  of  reviewing  and 
overruling  the  decisions  of  the  Secretary  of 
War  upon  military  questions  and  matters  aris- 
ing in  the  administration  of  the  War  Depart- 
ment.) 

The  Secretary  of  the  Navy  and  not  the  Sec- 
retary of  the  Interior  has  exclusive  jurisdic- 
tion to  determine  whether  applicants  are  en- 
titled to  pensions  imder  sections  4756  and 
4757,  Revised  Statutes;  the  Commissioner  of 
Pensions  in  making  payments  under  said  sec- 
tions acts  only  in  a  ministerial  capacity;  it  is 
immaterial  whether  he  concurs  or  differs  in 
such  judgments  as  may  be  arrived  at  by  the 
Secretary  of  the  Navy  .(31  Op.  Atty.  Gen.,  127, 
affirmed  Op.  Atty.  Gen.,  Nov.  7.  1917,  file 
26510-1022:11;  see  also  31  Op.  Atty.  Gen.,  268, 
and  C.  M.  O.  37,  1918,  p.  20.) 


Sec.  612.  [Returns  Office.]  The  Secretary  of  the  Interior  shall  from  time 
to  time  provide  a  proper  apartment,  to  be  called  the  Returns  Office,  in  which 
he  shall  cause  to  be  filed  the  returns  of  contracts  made  by  the  Secretary  of 
War,  the  Secretary  of  the  Navy,  and  the  Secretary  of  the  Interior,  and  shall 
appoint  a  clerk  of  the  first  class  to  attend  to  the  same.  [See  §§  3744-3747.] — 
(2  June,  1862,  c.  93,  s.  4,  v.  2,  p.  412. 


Contracts  made  by  or  under  the  Secretary  of 
the   Navy  shall  be  reduced    to  writing, 
signed    by    the    contracting   parties,    and 
copy  thereof  filed,  by  the  officer  makirig 
and  signing  the  contract,  in  the  Returns 
Office  within  30  days,   together  with  all 
bids,  offers,  proposals  and  advertisements 
relating  thereto,  and  affidavit  of  the  officer 
making     the     return.     (Sees.     3744-3745, 
R.  S.)    Time  maybe  extended  to  90  days 
in  discretion  of  Secretary  of  the  Navy. 
(Act  of  June  15,  1917,  40  Stat.,  198.) 
Copies  of  returns  of  contracts,   certified  and 
authenticated  imder  the  seal  of  the  Interior 
Department,  shall  be  evidence  in  prose- 
cutions against  officers  for  falsely  swearing 
_  to  returns.     (Sec.  888,  R.  S.) 
Failure  of  any  officer  to  make  return  as  required 
is  punisnaljle  by  fine  and  imprisonment. 
(Sec.  3746,  R.  S.) 
Secreta,ry  of  the  Navy  shall  furnish  printed 
instructions  and  blank  forms  of  contracts 
and    affidavits    to   officers   authorized    to 
make  contracts.     (Sec.  3747,  R.  S.) 
The  Secretary  of  the  Interior  has  no 
jurisdiction  over  the  contracts  entered  into  by 
the  Secretary  of  War  or  the  Secretary  of  the 
Navy  because  of  the  fact  that  returns  are  to  be 
made  to  an  office  in  his  department.     (29  Op. 
Atty.  Gen.,  293.) 

It  is  the  duty  of  the  Secretary  of  the 
Interior  to  call  apparent  violations  of  section 
3746,  Revised  Statutes,  to  the  attention  of  the 


Department  of  Justice  in  order  that,  if  the  law 
has  been  violated,  appropriate  criminal  pro- 
ceedings may  be  instituted  for  its  enforcement. 
(29  Op.  Atty.  Gen.,  293.) 

The  duty  rests  upon  each  head  of  de- 
partment to  reduce  to  writing  and  make  a 
proper  return  to  the  Returns  Office  of  all  con- 
tracts made  by  him  referred  to  in  section  3744, 
Revised  Statutes.     (29  Op.  Atty.  Gen.,  293.) 

SuflB.ciency  of  return. — ^The  return  made 
by  the  Assistant  Secretary  of  the  Navy,  stating 
that  there  were  excepted  therefrom  "certain 
plans  that  are  confidential  and  can  not  be  di- 
vulged at  this  time  without  detriment  to  the 
public  interests,"  is  a  sufficient  compUance 
with  the  law.     (29  Op.  Atty.  Gen.,  293.)  _ 

ConfLdential  plans. — Section  3744,  Revised 
Statutes,  should  not  be  construed  as  requiring 
the  disclosure  of  plans  that  are  confidential 
and  can  not  be  divulged  without  detriment  to 
the  public  interests,  notwithstanding  such 
plans  form  part  of  the  contract  by  express 
stipulation  contained  therein.  It  is  manifest 
that  if  the  Secretary  of  War  and  the  Secretary 
of  the  Navy  were  required  in  making  returns 
of  contracts  made  by  them  for  the  construction 
of  things  authorized  for  the  national  defense, 
such  as  vessels  of  war,  fortifications,  armor  and 
armament,  to  accompany  such  contracts  with 
copies  of  plans  and  specifications,  secrets  per- 
taining to  the  national  defense  would  be  ex- 
posed to  the  pubUc  view.  (29  Op.  Atty.  Gen.. 
293.) 


397 


Sec.  616.  Pt.2.  REVISED  STATUTES.  Interior  Department. 

Sec.  613.  [Clerk  to  file  returns.]  The  clerk  of  the  Returns  Office  shall  file 
all  returns  made  to  the  Office,  so  that  the  same  may  be  of  easy  access,  keeping 
all  returns  made  by  the  same  officer  in  the  same  place,  and  nmnbering  them 
m  the  order  in  which  they  are  made. — (2  June,  1862,  c.  93,  s.  4,  v.  12,  p.  412.) 

Sec.  514.  [Indexes.]  The  clerk  of  the  Returns  Office  shall  provide  and 
keep  an  index-book,  with  the  names  of  the  contracting  parties,  and  the  number 
of  each  contract  opposite  to  the  names;  and  shall  submit  the  index-book  and 
returns  to  any  person  desiring  to  inspect  it. — (2  June,  1862,  c.  93,  s.  4,  v.  12, 
p.  412.) 

Sec.  516.  [Copies  of  returns.]  The  clerk  of  the  Returns  Office  shall  furnish 
copies  of  such  returns  to  any  person  paying  therefor  at  the  rate  of  five  cents 
for  every  one  hundred  words,  to  which  copies  certificates  shall  be  appended  in 
every  case  by  the  clerk  making  the  same,  attesting  their  correctness,  and  that 
each  copy  so  certified  is  a  full  and  complete  copy  of  the  return. — (2  June,  1862, 
c.  93,  s.  4,  V.  12,  p.  412.) 


398 


TITLE  XIII. 
THE  JUDICIARY. 


CHAPTER  THIRTEEN. 


HABEAS  CORPUS. 


Sec. 

751 .  Courts  authorized  to  issue  writ. 

752.  Judges  authorized  to  grant  writ. 

753.  Writ  in  case  of  prisoner  in  jail. 

754.  Application  for  writ. 

755.  Allowance  and  direction  of  writ. 

756.  Time  of  return. 


Sec. 

757.  Form  of  return. 

758.  Body  of  party  to  be  produced. 

759.  Day  for  hearing. 

760.  Denial  of  facts  in  return;  amendments. 

761.  Summary  hearing;  disposition  of  party. 


Sec.  761.  [Courts  authorized  to  issue  writ.]  The  Supreme  Court  and  the 
circuit  and  district  courts  shall  have  power  to  issue  writs  of  habeas  corpus. — 
(24  Sept.,  1789,  c.  20,  s.  14,  v.  1,  p.  81;  10  Apr.,  1869,  c.  22,  s.  2,  v.  16,  p.  44; 
2  Mar.,  1833,  c.  57,  s.  7,  v.  4,  p.  634;  5  Feb.,  1867,  c.  28,  s.  1,  v.  14,  p.  385;  29 
Aug.,  1842,  c.  257,  s.  1,  v.  5,  p.  539;  U.  S.  v.  Hamilton,  3  Dall.,  17;  Ex  parte 
Burford,  3  Cr.,  448;  Ex  parte  Bollman,  4  Cr.,  75;  Ex  parte  Wilson,  6  Cr.,  52; 
Ex  parte  Kearney ,  7  Wh. ,  38 ;  Ex  parte  Watkins,  3  Pet.  ,193;  Ex  parte  Watkins, 
7  Pet.,  568;  Ex  parte  Milburn,  9  Pet.,  704;  Holmes  v.  Jennison,  14  Pet.,  540; 
Ex  parte  Barry,  2  How.,  65;  Ex  parte  Dorr,  3  How.,  103;  Barry  v.  Mercem,  5 
How.,  103;  In  re  Metzger,  5  How.,  176;  In  re  Kaine,  14  How.,  103;  Ex  parte 
Wells,  18  How.,  307;  Ex  parte  MiUigan,  4  Wall.,  2;  Ex  parte  McCardle,  6  Wall., 
318;  Ex  parte  McCardle,  7  Wall.,  506;  Ex  parte  Yerger,  8  Wall.,  85;  Ex 
parte  Lange,  18  Wall.,  163;  In  re  Heinrich,  5  Blatch.,  414;  Ex  parte  Keeler, 
Hemps.,  306;    U.  S.  v.  Williamson,  3  Am.  Law  Rep.,  729;    Bennet  v.  Bennet, 

I  Deady,  299;  Ex  parte  Evarts,  7  Am.  Law  Rep.,  79;  Norris  v.  Newton,  5 
McLean,  22;  U.  S.  v.  Rector,  5  McLean,  174;  Veremaitre's  Case,  13  Law  Rep., 
608;  Ex  parte  Sifford,  5  Am.  Law  Rep.,  659;  Ex  parte  McCan,  14  Am.  Law 
Rep.,  158;  U.  vS.  v.  French,  1  Galhs.,  1;  Ex  parte  Cheeney,  5  Law  Rep.,  19; 
Ex  parte  Des  Roches,  1  McAUis.,  68;  Ex  parte  Pleasants,  4  Cr.  C.  C,  314; 
Ex  parte  Turner,  6  Int.  Rev.  Rec,  147;  Ex  parte  Jenkins,  2  Wall.,  jr.,  521; 
Ex  parte  Robinson,  6  McLean,  355;  Ex  parte  Smith,  3  McLean,  121;  Meade's 
Case,  1  Brock.,  324;  U.  S.  v.  Anderson,  Cooke,  143;  Fisk  v.  Union  Pacific 
Railway,  10  Blatch.,  518;  In  re  Joseph  Stupp,  11  Blatch.,  124;  In  re  MacDonneU 

II  Blatch.,  79,  170;  In  re  Thomas,  12  Blatch.,  370;  In  re  Giacamo,  12  Blatch., 
391 ;  In  re  Joseph  Stupp,  12  Blatch.,  501;  In  re  W.  B.  Bird,  2  Saw.,  33;  In  re 
Bogart,  2  Saw.,  396.) 


Circuit  courts  were  abolished  and  their  powers 
and  duties  transferred  to  the  district  courts 
by  the  Judicial  Code,  act  of  March  3,  1911, 
sections  289-291  (36  Stat.,  1167). 


Due  process  of  law  denied  accused,  habeas 
corpus  proceedings  as  remedy — see  note  to 
Constitution,  fifth  amendment,  under  "VI. 
Remedy  when  Due  Process  Denied." 


399 


Sec.  752. 


Pt.2.  REVISED  STATUTES. 


The  Judiciary. 


Power  of  Federal  courts  to  order  release  of  per- 
son held  l)y  State  authorities— see  note  to 
section  753,  RcvumhI  Statutes,  and  to  Con- 
stitution, Artirle  I,  section  8,  clause  1:5. 
under  ■III.  .lurisdiction  of  Civil  Authori- 
ties." 

Power  to  review  proceedings  of  courts-martiul 
by  hal)eas  corpus — see  note  to  .section  75:5 
Revised  Statutes,  and  to  Constitution, 
Article  I,  section  8,  clause  14,  under  "III. 
Finality  of  court-martial  proceedingp." 

State  courts  without  juris<liction  to  order  relea'ie 
of  persons  held  l)y  authority  of  United 
States— see  note  to  Constitution,  Article  1. 
section  8,  clause  13,  under  "III.  .Juris- 
diction of  Civil  Authorities." 

Suspension    of    privilege    of    writ    of    habea.s 
corpus — «ee  Constitution,  Article  I,  section 
9,  clau.se  2,  and  note  thereto. 
The  writ  of    habeas    corpus  ad  subju- 

ciendura,  which  Ls  the  oniiiuiry  writ  of  hal)eas 


corpus,  is  the  written  order  of  a  judge  or  court 
of  competent  jurisdiction,  addressed  to  a  person 
who  is  alleged  to  be  restraining  another  of  his 
liberty  without  authority  of  law,  requiring  the 
si)eedy  production  in  court  of  the  party  re- 
strained, together  with  a  return  or  statement  set- 
ting forth  the  true  cause  of  such  restraint.  (See 
note  to  Constitution,  Art.  I,  sec.  9,  clause  2.) 

The  writ  of  habeas  corpus  ad  testifi- 
candum is  the  judicial  process  issued  to  the 
officer  in  charge  of  a  prison,  commanding  the 
production  in  court  of  a  prisoner  in  his  custody 
for  the  purpose  of  having  such  prisoner  testify 
as  a  witness  in  a  case  there  pending.  (See 
note  to  sec.  753,  R.  S.) 

Under  section  876,  Revised  Statutes,  a  writ 
of  subpoena  in  a  criminal  case  will  run  into  any 
district;  and  it  is  held  that  the  writ  of  habeas 
corpus  ad  testificandum  will  run  where  a  sub- 
psena  runs,  it  being  but  a  substitute  for  a 
subpoena.     (12  Comp.  Dec,  538.) 


Sec.  752.  [Judges  authorized  to  grant  writ.]  The  several  justices  and  judges 
of  the  said  courts,  within  their  respective  jurisdictions,  shall  have  power  to 
grant  writs  of  habeas  corpus  for  the  purpose  of  an  inquiry  into  the  cause  of 
restraint  of  liberty.— (24  Sept.,  1789,  c.  20,  s.  14,  v.  1,  p.  81;  10  Apr.,  1869,  c. 
22,  s.  2,  v.  16,  p.  44;  2  Mar.,  1833,  c.  57,  s.  7,  v.  4,  p.  634;  5  Feb.,  1867,  c.  28, 
s.  1,  v.  14,  p.  385;  29  Aug.,  1842,  c.  257,  s.  1,  v.  5,  p.  539.) 


"Within  their  respective  jurisdic- 
tions. "^Wli  ere  the  party  is  alleged  to  be  un- 
lawfidlv  restrained  of  his  liberty  in  a  distant 
pa-^session  of  the  United  States  (island  of 
Guam),  by  or  under  authority  of  a  naval  officer 
serving  as  governor  thereof,  a  writ  of  habeas 
corpus  can  not  be  directed  to  the  Secretary  of 
the  Navy  commanding  him  to  produce  such 
party  in  the  Suj)reme  Court  of  the  District  of 
Columbia,  in  order  that  the  court  may  inquire 
into  tlie  grounds  of  the  detention .  The  prisoner 
not  being  in  the  actual  custody  of  the  Secre- 
tary of  the  Navy,  jurisdiction  to  issue  the  writ 
can  not  be  conferred  upon  the  court  by  the 
allegation  that  the  Secretary  of  the  Navy  has 
the  final  control  over  his  imprisonment.  Even 
though  the  court  were  authorized  to  inquire 
into  the  grounds  of  detention,  where  the  party 
is  confined  out  of  its  jurisdiction,  the  writ  coidd 
not  be  L«sued  to  the  Secretary  of  the  Navy, 
because  the  officers  of  the  Navy  are  not  his 
agents,  but  are  the  agents  of  the  President,  who 
is  Commander  in  Chief;  therefore  the  power  to 
release  the  prisoner  or  to  produce  him  in 
obedience  to  the  writ  would  be  in  the  President 
and  not  in  the  Secretary.  (McGowan  v. 
Moofly,  22  App.  D.  C,  148.) 

It  is  possible  that  the  court  might  issue  a  writ 
of  habeas  corpus  addressed  to  a  person  within 
its  jurisdiction,  commanding  him  to  produce 
in  court  a  person  confined  by  his  order  and 
unfler  his  control  outside  of  the  court's  jurisdic- 
tion, should  it  be  made  to  appear  that  the  party 
had  been  confined  within  the  jurisdiction  of 
the  court  and  had  been  removed  therefrom  to 
evade  its  process.  (McGowan  v.  Moody,  22 
App.  D.  C,  148,  reviewing  authorities.) 

The  provisions  of  the  Revised  Statutes  "con- 
template a  proceeding  against  some  person  who 
has  the  immediate  custody  of  the  party  de- 


tained, with  the  power  to  produce  the  body  of 
such  party  before  the  court  or  judge,  that  he 
may  be  liberated  if  no  sufficient  reason  is  shown 
to  the  contrary."  (Wales  v.  Whitney,  114 
U.  S.,  574.) 

"Restraint  of  liberty." — "In  the  case  of  a 
man  in  the  military  or  naval  service,  where  he 
is,  whether  as  an  officer  or  a  private,  always 
more  or  less  subject  in  his  movements,  by  the 
very  necessity  of  military  ride  and  subordina- 
tion, to  the  orders  of  his  superior  officer  it 
should  "be  made  clear  that  some  unusual  re- 
straint upon  his  liberty  of  personal  movement 
exists  to  justify  the  issue  of  the  writ;  otherwise, 
every  order  of  the  superior  officer  directing  the 
movements  of  his  subordinate,  which  neces- 
sarily to  some  extent  curtails  his  freedom  of 
will,  may  be  held  to  be  a  restraint  of  his  liberty, 
and  the  party  so  ordered  may  seek  reUef  from 
obedience  by  means  of  a  writ  of  habeas  corpus." 
(Wales  V.  ^yhitney,  114  U.  S.,  564.) 

"Something  more  than  moral  restraint  is 
necessary  to  make  a  case  of  habeas  corpus. 
There  must  be  actual  confinement,  or  the 
present  means  of  enforcing  it."  (Wales  v. 
Whitney,  114  U.  S.,  564.) 

An  officer  of  the  Navy,  against  whom  charges 
had  been  preferred  for  trial  by  court-martial, 
was  given  the  following  order  by  the  Secretary 
of  the  Navy:  "You  are  placed  under  arrest  and 
you  will  confine  yourself  to  the  limits  of  the 
city  of  Washington."  The  facts  showed  that 
he  was  not  under  "physical  restraint;"  and 
that  the  above-mentioned  order  did  not  operate 
to  restrain  his  movements  any  more  than  would 
have  been  the  case  had  it  directed  him  to 
remain  in  Washington  to  serve  as  a  member  of 
the  court-martial.  Held,  that  there  was  no 
such  "restraint  of  liberty"  in  this  case  as  to 
justify  the  use  of  habeas  corpus;  and  that  the 


400 


The  Judiciary. 


Ft.  2.  REVISED  STATUTES. 


Sec.  753. 


fear  of  being  forcibly  arrested  and  returned 
should  he  leave  the  city  of  Washington,  if 
sufficient  to  keep  the  ofiicer  within  the  limits 
of  the  city,  "is  a  moral  restraint,  which  con- 
cerns his  own  convenience,  and  in  regard  to 
which  he  exercises  his  own  will."  (Wales  v. 
Whitney,  114  U.  S.,  564.) 


"In  case  of  a  person  who  is  going  at  large, 
with  no  one  controlling  or  watching  him,  or 
detaining  him,  his  body  cannot  be  produced 
by  the  person  to  whom  the  writ  is  directed, 
unless  by  consent  of  the  alleged  prisoner,  or 
by  his  capture  and  forcible  traduction  into  the 
presence  of  the  court."  (Wales  v.  Whitney, 
114  U.  S.,  564.) 


Sec.  753.  [Writ  in  case  of  prisoner  in  jail.]  The  writ  of  habeas  corpus  shall 
in  no  case  extend  to  a  prisoner  in  jail,  unless  where  he  is  in  custody  under  or 
by  color  of  the  authority  of  the  United  States,  or  is  committed  for  trial  before 
gome  court  thereof;  or  is  in  custody  for  an  act  done  or  omitted  in  pursuance 
of  a  law  of  the  United  States,  or  of  an  order,  process,  or  decree  of  a  court  or 
judge  thereof;  or  is  in  custody  in  violation  of  the  Constitution  or  of  a  law  or 
treaty  of  the  United  States;  or,  being  a  subject  or  citizen  of  a  foreign  state, 
and  domiciled  therein,  is  in  custody  for  an  act  done  or  omitted  under  any 
alleged  right,  title,  authority,  privilege,  protection,  or  exemption  claimed 
under  the  commission,  or  order,  or  sanction  of  any  foreign  state,  or  under 
color  thereof,  the  validity  and  effect  whereof  depend  upon  the  law  of  nations; 
or  unless  it  is  necessary  to  bring  the  prisoner  into  court  to  testify. — (24  Sept., 
1789,  c.  20,  s.  14,  V.  1,  p.  81;  2  Mar.,  1833,  c.  57,  s.  7,  v.  4,  p.  634;  5  Feb.,  1867, 
c.  28,  s.  1,  V.  14,  p.  385;  29  Aug.,  1842,  c.  257,  s.  1,  v.  5,  p.  539;  Ex  parte  Dorr, 
3  How.,  103;  Ex  parte  Barnes,  1  Sprague,  133;  Ex  parte  Bridges,  2  Woods,  428.) 


I.  Persons  in  Custody  by   Sentence    of 

CoURT-ilARTIAL. 

II.  Persons  in  Custody  for  Act  Done  in 
Pursuance  of  a  Law  of  the  United 
States. 

III.  Persons  in   Custody  in   Violation   of 

the    Constitution    of    the    United 
States. 

IV.  Bringing  Prisoner  into  Court  to  Tes- 

tify. 


I.  Persons    in    Custody    by    Sentence    of 
Court-Martial. 

Jurisdiction  of  courts-martial  subject  to 
review. — "It  cannot  be  doubted  that  the 
civil  courts  may  in  any  case  inquire  into  the 
jurisdiction  of  a  court-martial,  and  if  it  appears 
that  the  party  condemned  was  not  amenable 
to  its  jurisdiction,  may  discharge  him  from  the 
sentence.  And,  on  the  other  hand,  it  is  equally 
clear  that  by  habeas  corpus  the  ci\'il  courts 
exercise  no  superi-isory  or  correcting  power 
over  the  proceedings  of  a  court-martial;  and  that 
no  mere  errors  in  their  proceedings  are  open  to 
consideration.    The  single  inquiry,  the  test,  is 

i'urisdiction.  That  being  established,  the 
labeas  corpus  must  be  denied  and  the  peti- 
tioner remanded.  But  wanting,  it  must  be 
sustained  and  the  petitioner  discharged."  (In 
re  Grunley,  137  U.  S.,  147.) 

An  enUsted  man  of  the  Marine  Corps  is  not 
amenable  to  trial  by  naval  court-martial  under 
section  1624  of  the  Revised  Statutes  (Articles 
for  the  Government  of  the  Na\'y)  where  the 
offense  charged  was  committed  by  him  while 
detached  for  service  with  the  Army,  in  accord- 
ance with  section  1621,  Revised  Statutes,  at 
which  time  he  was  subject  to  the  Articles  of 


War  (sec.  1342,  R.  S.)  and  not  subject  to  the 
laws  or  regulations  for  the  government  of  the 
Navy.  Accordingly,  in  habeas  corpus  pro- 
ceedings the  prisoner  is  entitled  to  discharge 
from  custody  under  the  sentence  of  the  naval 
court-martial.  (U.  S.  v.  Waller,  225  Fed. 
Rep.,  673;  C.  M.  O.  31,  1915,  p.  6.  But  see  sub- 
sequent amendment  to  sec.  1342,  R.  S.,  art.  2 
(c),  made  by  act  Aug.  29,  1916,  39  Stat.,  651.) 

Errors  of  procedirre  cannot  be  re- 
viewed.— ^Wliere  the  military  authorities  pro- 
ceed regularly  within  their  jurisdiction,  tney 
cannot  be  interfered  with  "no  matter  what 
errors  may  be  committed  in  the  exercise  of 
their  lawful  jurisdiction."  (In  re  McVey,  23 
Fed.  Rep.,  878.) 

"\Miere  a  court-martial  had  jurisdiction  to 
try  petitioner  for  an  offense  against  the  naval 
regulations,  and  to  impose  sentence  authorized 
thereby,  a  civil  court  in  habeas  corpus  proceed- 
ings could  only  review  the  question  of  juris- 
diction and  could  not  pass  on  alleged  errors  of 
law  committed  by  the  court-martial  or  on  the 
severity  of  the  sentence  imposed."  (Ex  parte 
Dickey,  204  Fed.  Rep.,  322.) 

A  statute  providing  that  the  judge  advocate 
shall  not  be  present  during  a  closed  session  of 
the  courtj  relates  to  procedure  merely,  and  not 
to  jurisdiction;  and,  while  the  rights  of  the 
accused  are  \'iolated  by  allowing  the  judge 
advocate  to  be  present  for  a  short  time  during 
a  closed  session,  the  nonobservance  of  the 
statute  is  a  matter  for  the  revising  military 
authorities,  not  for  the  ci\'il  courts  in  habeas 
corpus  proceedings.  (Ex  parte  Tucker,  212 
Fed.  Rep.,  569.  The  statute  referred  to  was  the 
act  of  July  27,  1892,  sec.  2,  27  Stat.,  277,  relat- 
ing to  Army  courts-martial,  and  was  errone- 
ously cited  by  the  court  as  applicable  to  naval 
courts- martial;  there  was  no  similar  statute  with 


401 


Sec.  763. 


Pi.  2.  REVISED  STATUTES. 


The  Judiciary. 


reference  to  the  Navy,  but  the  Nav'y  Refla- 
tions rontainod  a  provi.sioii  to  (ho  8anie  efiect.) 

Where  a  court-martial  has  juri.s<^liction  over 
the  porson  and  subject  niattor.  ita  jirocccdinga 
can  not  ho  collaterally  impeached  for  any 
mere  error  or  irregularity,  if  there  were  such 
committed,  within  the  Bjihere  of  its  authority. 
(Ex  parte  Reed,  100  I T.  S.,  2:1.) 

"We  must  not  he  understood  Ity  anything 
we  have  said  as  intending  in  the  slightest  degree 
to  impair  tlie  salutary  rule  that  the  s(>ntences 
of  co\irtvS-martial,  when  affirmed  l)y  the  mili- 
tary tril)unal  of  last  resort,  cannot  be  revised 
by  the  civil  courts  s;ive  only  when  void  because 
of  an  absolute  want  of  power,  and  not  merely 
voidable  because  of  the  defective  exercise  of 
power  possessed."  (Carter  v.  McClaughry, 
183U.  S.,401.) 

"Undoubtedly  errors  are  committed  liy 
courts-martial  which  a  civil  tribunal  would 
regard  as  sulficient  grounds  for  a  reversal  of 
their  judgments  if  it  were  sitting  as  an  appel- 
late court.  But  there  is  always  this  radical 
difference  between  an  appellate  court  sitting 
for  the  correction  of  errors  and  a  ci\'il  court 
into  which  the  record  of  a  court-martial  is 
collateral — in  the  former  there  is  not  a  failure 
of  justice;  the  appellate  court  may  reverse  a 
judgment  or  prescribe  another  or  award  a  new 
trial:  in  the  latter  the  court  miist  either  give 
full  effect  to  the  sentence  or  pronounce  it 
whollv  void."  (Swaim  v.  U.  S.,  28  Ct.  Cls., 
217;  affirmed  165  U.  S.,  563.) 

"Courts-martial  are  lawful  tribunals,  with 
authority  to  finally  determine  any  case  over 
which  they  have  jurisdiction,  and  their  pro- 
ceedings, when  confirmed  as  pro\'ided,  are  not 
open  to  re^•iew  by  the  civil  tribunals,  except 
for  the  purpose  of  ascertaining  whether  the 
military  court  had  jurisdiction  of  the  person 
and  subject  matter,  and  whether,  though 
ha^•ing  such  jurisdiction,  it  had  exceeded  its 
powers  in  the  sentence  pronoimced."  (Carter 
V.  Roberts,  177  U.  S.,  496;  Ex  parte  Mason,  105 
U.  S.,  697;  Johnson  v.  Sayre,  158  U.  S.,  109.) 

"With  the  sentences  of  courts-martial  which 
have  been  convened  regularly,  and  have  pro- 
ceeded legally,  and  by  which  punishments 
are  directed,  not  forbidden  by  law,  or  which  are 
according  to  the  laws  and  customs  of  the  sea, 
ci\^l  courts  have  nothing  to  do,  nor  are  they  in 
any  way  alterable  by  them.  If  it  were  other- 
wise, the  civil  courts  would  virtually  admin- 
ister the  rules  and  articles  of  war,  irrespective 
of  tho.'^e  to  whom  that  duty  and  obligation  has 
been  confided  by  the  laws  of  the  United  States, 
from  who.se  decisions  no  appeal  or  jurisdiction 
of  any  kind  has  been  given  to  the  civil  magis- 
trate or  ciN-il  court."  (Dynes  v.  Hoover,  20 
IIow.,  55,  82.) 

SufSciency  of  charges  and  specifications 
can  not  be  reviewed. — "^^^lere  a  charge 
against  a  person  tried  by  a  military  court  is 
within  the  court's  jurisdiction,  and  is  author- 
ized by  the  Army  or  Navy  Regulations,  the 
manner  of  setting  out  the  offense  is  a  matter  of 
pleading,  rather  than  jurisdiction,  the  suffi- 
ciency of  which  is  for  the  exclusive  determina- 
tion of  the  court-martial."  (Ex  parte  Dickey, 
204  Fed.  Rep.,  322.) 

In  the  case  of  Carter  v.   McClaughry  (183 

itended  in  habeas 


U.  S.,    355,  400),  it  was  contended 


corpus  proceedings  that  the  offense  of  embez- 
zlement l)y  an  oliicer  of  the  Army  was  errone- 
ously charged  as  a  violation  of  article  02  of  the 
Articles  of  War  (sec.  1342,  R.  8.),  which  pro- 
vides for  the  punishment  of  offenses  "to  the 
prejudice  of  good  order  and  military  disci- 
pline." In  overruling  this  contention  it  was 
stated  by  the  Su])r(Mne  Court: 

"We  should  suppose  that  embezzlement 
would  be  detrimental  to  the  service  within  the 
intent  and  meaning  of  the  article,  but  it  is 
enough  that  it  was  peculiarly  for  the  court- 
martial  to  determine  whether  the  crime  charged 
was  'to  the  prejudice  of  good  order  and  military 
discipline.'  (Swaim  v.  United  States,  165 
U.  S.,  553;  Smith  v.  Wliitney,  116  U.  S.,  178; 
United  States  v.  Fletcher,  148  U.  S.,  84.)  In 
Swaim  v.  United  States,  which  involved  a 
sentence  under  the  sixty-second  Article  of  War, 
Mr.  Justice  Shiras,  delivering  the  opinion, 
said:  'But,  as  the  authorities  heretofore  cited 
show,  this  is  the  very  matter  that  falls  within 
the  province  of  courts-martial,  and  in  respect 
of  which  their  conclusions  cannot  be  con- 
trolled or  reviewed  by  the  civil  courts.  As  was 
said  in  Smith  v.  Whitney,  116  U.  S.,  178,  "of 
questions  not  depending  upon  the  construction 
of  the  statutes,  but  upon  unwritten  military 
law  or  usage,  within  the  jurisdiction  of  courts- 
martial,  military  or  naval  officers,  from  their 
training  and  experience  in  the  ser-\dce,  are 
more  competent  judges  than  the  courts  of  com- 
mon law  .  .  .  Under  every  system  of  mili- 
tary law  for  the  goA-ernment  of  either  land  or 
naval  forces,  the  jurisdiction  of  courts-martial 
extends  to  the  trial  and  punishment  of  acts  of 
military  or  naval  officers  which  tend  to  bring 
disgrace  and  reproach  upon  the  ser^dce  of 
which  they  are  members,  whether  those  acts 
are  done  in  the  performance  of  military  duties, 
or  in  a  civil  position,  or  in  a  social  relation,  or 
in  private  business." '" 

Sentence  final  when  confirmed  by  the 
proper  military  authority. — In  cases  which 
do  not  extend  to  the  loss  of  life,  or  to  the  dis- 
missal of  a  commissioned  or  warrant  officer,  the 
Secretary  of  the  Navy  is  "the  final  reviewing 
authority  provided  by  law  to  act  upon  records 
of  courts-martial."  (Ex  parte  Dickev,  204 
Fed.  Rep.,  322,  326.)  \^^lere  the  court-martial 
is  ordered  by  the  Secretary  of  the  Navy,  its 
sentence  can  not  be  carried  into  effect  until 
confirmed  by  him  (Dynes  v.  Hoover,  20  How., 
81);  where  ordered  by  an  officer  of  the  Navy 
vested  with  such  authority,  its  sentence  may  be 
carried  into  execution  on  confirmation  by  such 
officer  (sec.  1624,  R.  S.,  art.  53).  W^hc-ve  the 
sentence  extends  to  loss  of  life,  or  to  the  dis- 
missal of  a  commissioned  or  warrant  officer,  it 
can  not  be  carried  into  execution  until  con- 
firmed by  the  President.  (Sec.  1624.  R.  S., 
art.  53.)  In  any  of  these  cases,  where  the 
sentence  has  been  so  confirmed  by  the  proper 
reviewing  officer,  "it  becomes  final,  and  must 
be  executed,  unless  the  President  pardons  the 
offender.  It  is  in  the  nature  of  an  appeal  to 
the  officer  ordering  the  court,  who  is  made  by 
law  the  arbiter  of  the  legality  and  propriety  of 
the  court's  sentence,  ^^^len  confirmed,  it  is 
altogether  beyond  the  jurisdiction  or  inquiry 
of  any  civil  tribunal  whatever,  unless  it  shall 
be  in  a  case  in  which  the  court  had  not  jurisdic- 


402 


The  Judiciary. 


Pt.2.  REVISED  STATUTES. 


Sec.  753. 


tion  over  the  subject  matter  or  charge,  or  one 
in  which,  having  jurisdiction  over  the  subject 
matter,  it  has  failed  to  observe  the  rules  pre- 
scribed by  the  statute  for  its  exercise." 
(Dynes  r.  Hoover,  20  How.,  81.) 

'"'^lien  affirmed  by  the  military  tribunal  of 
last  resort,"  the  sentences  of  courts-martial  can 
not  be  revised  by  the  civil  courts,  "save  only 
when  void  because  of  an  absolute  want  of 
power."     (Carter  r.  McClaughry,   183  U.   S., 

380.) 

The  judgments  of  a  court-martial  when  ap- 
proved as  required,  rest  on  the  same  basis 
and  are  surrounded  by  the  same  considerations 
which  give  conclusiveness  to  the  judgments 
of  other  legal  tribunals.  (Ex  parte  Reed,  100 
U.  S.,  23.) 

^^■here  the  sentence  of  a  court-martial  has 
been  approved  by  the  Secretary  of  the  Navy, 
in  a  case  not  extending  to  loss  of  life  or  dis- 
missal of  a  commissioned  or  wan-ant  officer,  it 
can  not  be  revised  by  the  civil  coiuts  on  the 
ground  that  alleged  errors  of  law  were  com- 
mitted by  the  court-martial,  or  that  the 
prisoner  was  harshly  dealt  -nith  and  a  sentence 
of  undue  severitv  was  imposed.  (Ex  parte 
Dickey,  204  Fed. 'Rep.,  322.) 

Excessive  sentence  not  void. — "Under  a 
writ  of  habeas  corpus,  the  inquiry  is  not  ad- 
» dressed  to  errors,  but  to  the  question  whether 
the  proceedings  and  judgment  are  nullities; 
and  unless  it  appears  that  the  judgment  or 
sentence  under  which  the  prisoner  is  con- 
fined is  void,  he  is  not  entitled  to  his  dis- 
charge." "NMiere  a  court  "has  juridsiction  of 
the  person  and  the  offense,  the  imposition  of 
a  sentence  in  excess  of  what  the  law  permits, 
does  not  render  the  legal  or  authorized  portion 
of  the  sentence  void,  but  only  leaves  such 
part  of  it  as  mav  be  in  exce.ss,  open  to  question 
and  attack."  (U.  S.  r.  Pridgeon.  153  U.  S., 
48;  see  also  file  26287-1543;''  and  G.  C.  M. 
Rec.  No.  23271.) 

The  prisoner  "cannot  be  discharged  on 
habeas  corpus  until  he  has  performed  so  much 
of  the  judgment,  or  served  out  so  much  of  the 
sentence  as  it  was  within  the  power  of  the 
court  to  impose."  (In  re  Swan,  150  U.  S., 
637,  653;  U.  S.  v.  Pridgeon,  153  U.  S.,  48.) 

Discharge  not  required  by  subsequent 
change  in  party's  status. — An  officer  con- 
A-icted  by  court-martial  and  sentenced  to  dis- 
missal and  imprisonment,  which  sentence  is 
duly  approved  by  the  President,  can  not  be 
released  from  custody  on  habeas  corpus  on  the 
ground  that  upon  execution  of  the  sentence  of 
dismissal  he  ceased  to  be  amenable  to  military 
jurisdiction  and  could  not  be  held  to  serve  his 
period  of  imprisonment.  ' '  Wliere  the  jurisdic- 
tion of  the  military  court  has  attached  in  respect 
of  an  officer  of  the  Army,  this  includes  not  only 
the  power  to  hear  and  determine  the  case,  but 
the  power  to  execute  and  enforce  the  sen- 
tence." (Carter  v.  McClaughry,  183  U,  S., 
365.) 

Where  jurisdiction  has  attached,  it  can  not 
be  divested  by  mere  subsequent  change  of 
status.  (Carter  r.  McClaughrv,  183  U.  S.',  383, 
citing  Barrett  r.  Hopkins,  7"  Fed.  Rep.,  312; 
Coleman  v.  Tennessee,  97  U.  S.,  509;  see  al.-^o 
file  26251-5447,  Dec.  8,  1911.) 


II.  Persons  in  Custody  for  Act  Done  in 
Pursuance    of    a    Law    of    the    United 

States. 

Military  guard  charged  -with  man- 
slaughter.— There  is  no  question  that  an  act 
done  by  a  soldier  in  the  performance  of  his  duty 
in  the  military  service  of  the  United  States,  is 
done  in  pursuance  of  a  law  of  the  United  States, 
and  so  not  within  the  jurisdiction  of  a  State  court 
to  try.  Accordingly,  where  a  soldier  on  guard 
duty  shot  at  an  escaping  prisoner,  as  required 
by  the  manual  of  guard  duty,  and  killed  a 
young  woman  pedestrian,  there  being  no  claim 
that  the  killing  was  intentional  or  that  the  guard 
acted  maliciously  or  wantonly  or  otherwise  than 
in  good  faith,  held  that  the  guard  in  shooting 
was  acting  in  the  supposed  performance  of  his 
duty  as  a  soldier,  and  was  not  subject  to  arrest 
and  trial  by  the  State  authorities  for  man- 
slaughter, even  though  it  might  have  been 
more  prudent  for  him  to  have  exercised  still 
greater  care;  and  accordingly,  the  judge  of  a 
district  court  of  the  United  States  has  authority 
under  sections  752,  753,  and  761  Revised  Stat- 
utes, to  inquire  into  the  facts  of  the  case  and 
direct  his  release  from  the  custody  of  the  State 
authorities.  (U.  S.  v.  Lipsett,  156  Fed.  Rep., 
65:  see  also  In  re  Fair,  100  Fed.  Rep.,  149.) 

For  other  cases,  see  note  to  Constitution, 
Article  I,  section  8,  clause  13,  under  "III. 
Jurisdiction  of  Civil  Authorities." 

III.  Persons  in   Custody  in  Violation   of 
the  Constitution  of  the  United  States. 

Imprisonment  without  due  process  of 
law. — "It  is  open  to  the  courts  of  the  United 
States,  upon  an  application  for  a  writ  of  habeas 
corpus,  to  look  beyond  forms  and  inquire  into 
the  very  substance  of  the  matter,  to  the  extent 
of  deciding  whether  the  prisoner  has  been  de- 
prived of  his  liberty  without  due  process  of  law, 
and  for  this  purpose  to  inquire  into  jurisdic- 
tional facts,  whether  they  appear  upon  the 
record  or  not."  (Frank  v.  Mangum.  237  U.  S., 
309.) 

One  committed  for  refusing  to  incrimi- 
nate himself,  in  the  exercise  of  his  right  under 
the  Constitution,  should  be  released  on  habeas 
corpus.  (Foot  V.  Buchanan,  113  Fed.  Rep., 
156.) 

For  other  cases  see  note  to  Constitution, 
fifth  amendment. 

lY.  Bringing     Prisoner     into     Court     to 
Testify. 

Naval  prisoners  as  witnesses  or  parties 
in  civil  courts. — "If  the  Federal  or  State 
authorities  desire  the  attendance  of  a  naval 
prisoner  as  a  witness  in  a  criminal  case  pending 
in  a  civil  court,  upon  the  submission  of  such 
a  request  to  the  Secretary  of  the  Navy  authority 
will  be  given  in  a  proper  case  for  the  production 
of  the  man  in  court  without  resort  being  had  to 
a  writ  of  habeas  corpus  ad  testificandum." 
(G.  O.  No.  121,  Navy  Dept.,  Sept.  17,  1914, 
par.  16,  citing  file  26251-8684:2,  June  10,  1914; 
26276-93,  May  29,  1914;  26276-40,  June  10,  1912; 
26276-33,  June  5,  1911; 26276-17,  Nov.  10,  1909; 
etc.) 


403 


Sec.  765. 


Pt.2.  REVISED  STATUTES. 


The  Judiciary. 


However,  the  Navy  Department  "will  not  but  the  department  will  allow  the  deposition 

authorize  the  attendance  of  a  naval  prisoner  in  a  of  such  naval  prisoner  to  be  taken  in  the  case." 

Federal  or  State  court,  either  a.s  a  party  or  as  a  (G.  O.  No.  121,  Navy  Dept.,  Sept.  17,  1914,  par. 

witness  in   private   litiixaiion    pendiiii,'   before  Ki,    citing    file   20251-4913:1,    Oct.    12,    1911; 

such  court,  as  in  such  ca.-^es  the  court  may  grant  2G276-3G,  Dec.  9,  1911.) 
a  postponement  or  a  continuance  of  the  trial: 

Sec.  754.  [Application  for  writ.]  Ai)pliciiti()n  for  writ  of  habeas  corpus 
shall  bo  made  to  the  court,  or  justice,  or  judge  authorized  to  issue  the  same, 
by  complaint  in  \vriting,  signed  by  the  person  for  whose  relief  it  is  intended, 
setting  forth  the  facts  concerning  the  detention  of  the  party  restrained,  in 
wliose  custody  he  is  detained,  and  by  virtue  of  what  claim  or  authority,  if 
kno^^^l.  The  facts  set  forth  in  the  complaint  shall  be  verified  by  the  oath  of 
the  person  making  the  apphcation.— (5  Feb.,  1867,  c.  28,  s.  1,  v.  14,  p.  385.) 


Averments  of  conclusions  of  law,  inade- 
quate.— "If  the  detention  is  claimed  to  be  un- 
lawful by  reason  of  the  invalidity  of  the  process 
or  proceedings  under  which  the  party  is  held 
in  custody,  copies  of  such  process  or  proceedings 
must  be  annexed  to  or  the  essential  parts 
thereof  set  out  in  the  petition,  and  mere  aver- 
ments of  conclusions  of  law  are  necessarily 
inadequate."  (Creamer  v.  Washington,  168 
U.  S.,  128.  See  also  ^^'hitten  v.  Tomlinson, 
IGO  U.  S.,  231:  Kohl  r.  Lehlback,  160  U.  S., 
293;  Cuddy,  Petitioner,  131,  U.  S.,  280;  An- 
dersen V.  Treat,  172  U.  S.,  24.) 

Where  a  petition  for  habeas  corpus  alleges 
that  the  petitioner  is  the  father  of  the  person 
whose  release  is  sought,  and  that  such  person, 
being  between  the  ages  of  18  and  21  years, 
entered  into  the  United  States  Navy  without 


the  parent's  consent,  and  is  himself  desirous 
of  being  released  therefrom;  and  that,  under 
the  statutes  of  the  United  States  in  such  case 
made  and  provided,  the  enlistment  of  such 
person  was  illegal  and  invalid:  Held,  That  no 
issue  as  to  the  intoxication  of  the  recruit  at 
the  time  of  enlistment  is  presented,  especially 
in  view  of  the  fact  that  the  Revised  Statutes, 
section  1624,  article  19,  requires  the  dishonor- 
able dismissal  of  an  officer  who  knowingly 
enlists  an  intoxicated  person.  Held,  also,  That 
no  issue  as  to  intoxication  at  the  time  of  enlist- 
ment being  presented  by  the  pleadings,  the 
fact  that  the  recruit  was  permitted,  apparently 
without  objection,  to  testify  to  such  intoxica- 
tion, does  not  constrain  the  court  on  appeal  to 
review  the  latter  question.  (Thomas  v.  Winne, 
122  Fed.  Rep.,  395.) 


Sec.  755.  [Allowance  and  direction  of  writ.]  The  court,  or  justice,  or  judge 
to  whom  such  application  is  made  sliall  forthwith,  award  a  writ  of  habeas  corpus, 
unless  it  appears  from  the  petition  itself  that  the  party  is  not  entitled  thereto. 
The  wT-it  shall  be  directed  to  the  person  in  whose  custody  the  party  is  de- 
tained.—(5  Feb.,  1867,  c.  28,  s.  1,  v.  14,  p.  385;  Ex  parte  Watkins,  3  Pet.,  193; 
Ex  parte  Milligan,  4  Wall.,  2,  (110). 


Suspension  of  privilege  of   writ — see  note  to 
Constitution,  Article  I,  section  9,  clause  2. 

The  writ  need  not  be  awarded  where  it 
is  obvious  that,  before  a  return  to  the  writ  can 
be  made,  or  any  other  action  can  be  taken,  the 
restraint  of  which  the  petitioner  complains 
would  have  terminated.  (Ex  parte  Baez,  177 
r.  S.,  378.) 

Persons  confined  by  naval  oflB.cers  are  not 
in  the  custody  of  the  Secretary  of  the  Navy  so 
as  to  warrant  the  issuance  of  a  writ  of  habeas 
corjius  directed  to  him.  (McGowan  v.  Moody, 
22  Ap]).  D.  C,  148;  see  note  to  sec.  752,  R.  S.) 

"  If  the  party  is  not  in  the  custody  of  the 
officer  to  whom  the  ^vrit  is  directed,  he  will  so 
state  in  his  return."  (G.  0.  No.  121,  Navy^ 
Dept.,  Sept.  17,  1914,  par.  7;  see  also  file  26262- 
1665:  41,  Inc.  1,  p.  26.) 

Service  of  writ. — A  writ  of  habeas  corpus 
was  issued  by  a  Federal  judge,  directed  to  the 
commanding  officer  of  the  Arkansas,  which 
vessel  was  under  orders  to  sail  from  the  navy 
yard,  Norfolk,  Va. ,  on  the  morning  thatthe  writ 
was  returnable.  The  writ  was  not  served,  but 
the  United  States  marshal  communicated  with 


the  commandant  of  the  navy  yard,  who  informed 
the  commanding  officer  of  the  Arkansas  by 
radiogram  that  the  wi'it  had  been  issued ;  where- 
upon the  commanding  officer  delivered  the 
party  named  therein  to  the  commandant  of  the 
navy  yard,  and  sailed  in  accordance  with  pre- 
vious orders.  Held,  That  the  radiogram  from 
the  commandant  was  in  no  sense  legal  service 
on  the  commanding  officer  of  the  Arkansas  of 
the  WTit  of  habeas  corpus;  however,  thelatter's 
action  in  delivering  the  party  to  the  com- 
mandant, under  the  circumstances,  was  ap- 
proved.    (File  26522-26,  Nov.  30,  1914.) 

A  writ  of  habeas  corpus  was  issued  by  a 
United  States  judge,  addressed  to  the  Secretary 
of  the  Navy,  the  commandant  of  the  navy  yard, 
Brooklyn,  N.  Y.,  "and  any  other  person  having 
custody  of"  the  enlisted  man  named  in  said 
writ.  The  writ  was  delivered  at  the  naval 
prison,  navy  yard.  New  York,  about  3.45  p.  m. 
The  prisoner  had  been  transferred  under  guard 
from  said  prison  at  about  3p.m.  the  same  day. 
The  original  of  the  writ  was  then  served  upon  the 
prisoner's  guard,  while  waiting  on  the  Bay  State 
Line  pier  for  instructions  just  prior  to  leaving 


404 


The  Judiciary. 


Pt.2.  RE  VISED  STAT  UTES . 


Sec.  757, 


with  his  prisoner  for  the  naval  prison,  Ports- 
mouth, N .  H .  The  circumstances  were  reported 
to  the  commandant,  navy  yard,  New  York' 
who  directed  that  the  guard  carry  out  his  orders 
to  deliver  the  prisoner  at  Portsmouth,  which  was 
done.  The  matter  being  brought  to  the  atten- 
tion of  the  Secretary  of  the  Navy,  orders  were 
immediately  issued  for  the  return  of  the  prisoner 
to  New  York  and  his  production  in  court  in 
answer  to  the  writ  of  habeas  corpus,  the  com- 


mandant's attention  being  invited  to  the  erro- 
neous procedure  adopted  by  him  in  directing 
the  guard  to  proceed  with  his  prisoner  to  Ports- 
mouth after  a  writ  of  habeas  corpus  had  been 
served  upon  said  guard ;  the  fact  that  a  writ  of 
habeas  corpus  issued  by  a  Federal  court  must 
always  be  obeyed ;  and  the  unnecessary  annoy- 
ance and  expense  caused  by  the  erroneous  pro- 
cedure in  this  case.     (File  26522-25.) 


Sec.  756.  [Time  of  return.]  Any  person  to  whom  such  writ  is  directed  shall 
make  due  return  thereof  within  three  days  thereafter,  unless  the  party  be 
detained  beyond  the  distance  of  twenty  miles;  and  if  beyond  that  distance 
and  not  beyond  a  distance  of  a  hundred  miles,  within  ten  days;  and  if  beyond 
the  distance  of  a  hundred  miles,  within  twenty  days.— ^(5  Feb.,  1867,  c.  28,  s.  1, 
V.  14,  p.  385.) 


Full  time  permitted. — "The  officer  upon 
whom  such  a  writ  of  habeas  corpus  is  served 
can  not  be  required  to  obey  same  in  any  shorter 
period  after  the  service  of  the  writ  than  that 
specified  in  the  above  section  of  the  Revised 
Statutes,  even  though  the  writ  should  in  terms 
require  that  the  person  named  therein  be  pro- 
duced 'forthwith,'  or  'immediately,'  or  at  a 
specified  time."  (G.  O.  No.  121,  Na^T  Dept., 
Sept.  17,  1914,  par.  5,  citing  Ex  parte  Baez,  177 
U.  S.,  389,  and  United  States  v.  Bollman,  24 
Fed.  Cas.,  1190.) 

Commanding  oflB.cers  of  vessels  or  shore 
stations  of  the  Navy  or  Marine  Corps  are  for- 
bidden to  deliver  any  person  in  their  custody 
or  under  their  control  to  the  civil  authorities, 
in  obedience  to  writs  of  habeas  corpus,  without 
first  communicating  with  the  Secretary  of  the 
Navy  and  awaiting  his  instructions  in  the 
premises.  "The  Secretary  of  the  Na\^  will 
promptly  issue  the  necessary  orders  in  the  case 
or  make  request  upon  the  Attorney-General, 
in  accordance  with  Title  VIII  of  the  Revised 
Statutes  of  the  United  States,  to  furnish  such 
legal  assistance  to  the  commanding  officer  con- 
cerned as  the  interests  of  the  United  States 
involved  in  such  case  may  demand."  Should 
instructions  for  any  reason  not  be  received  by 
the  commanding  officer  from  the  Secretary  of 
the  Navy  by  the  last  day  of  the  period  allowed 
by  law  for  making  return,  he  will  comply  with 
sections  757  and  758  of  the  Revised  Statutes, 
and  request  the  court  to  delay  the  hearing  of 
the  cause  for  the  full  period  of  five  days  allowed 
by  section  759,  Revised  Statutes,  so  that  fur- 
ther opportunity  may  be  afforded  for  the  re- 
ceipt of  instructions  in  the  premises  from  the 
Secretarv  of  the  Navy.  (G.  O.  No.  121,  Na\y 
Dept.,  Sept.  17,  1914.) 

A  fine  of  $1,000  for  contempt  of  court 
was  imposed  upon  General  Jackson,  at  the  close 


of  the  War  of  1812,  for  refusing  obedience  to  a 
writ  of  habeas  corpus,  which  fine  he  paid. 
(See  Dow  v.  Johnson,  100  U.  S.,  158,  194,  noted 
under  Constitution,  Art.  I,  sec.  8,  clause  11, 
"Effect  of  martial  law.") 

An  oflS^cer  of  the  Army  refused  during  the 
Civil  War  to  receive  service  of  a  writ  of  habeas 
corpus  issued  by  the  Chief  Justice  of  the  United 
States  on  the  ground  that  the  privilege  of  the 
writ  had  been  suspended  by  him,  under  author- 
ity from  the  President.  The  chief  justice  held 
that  he  was  without  power  to  proceed  further 
in  the  premises,  and  that  it  became  the  duty 
of  the  President  under  the  Constitution,  Arti- 
cle II,  section  3,  to  come  to  the  aid  of  the  judi- 
cial authority  when  resisted  by  a  force  too 
strong  to  be  overcome,  assisting  it  to  execute 
the  process  and  enforce  its  judgments.  (Ex 
parte  Merryman,  17  Fed.  Cas.  No.  9487;  see 
note  to  Constitution,  Art.  I,  sec.  9,  clause  2, 
and  Art.  II,  sec.  3.) 

When  service  of  the  writ  is  prevented  by 
force,  the  court  does  not  perceive  that  any- 
thing more  can  be  done.  "The  court  deeply 
regrets  that  officers  of  the  United  States  should 
obstruct  process  out  of  a  court  of  the  United 
States,  especially  this  process;"  nevertheless, 
"those  officers  are  at  present  beyond  the  con- 
trol of  the  law,  and  the  court  has  not  the  com- 
mand of  the  physical  force  needful  to  effect  a 
service  of  this  writ  at  the  present  time.  Let 
the  MTit  be  placed  on  file,  to  be  served  when 
and  where  service  may  become  practicable." 
(In  re  Winder,  30  Fed.  Cas.  No.  17867.) 

An  order  from  the  War  Department  to  a 
United  States  marshal  not  to  obey  a  writ  of 
habeas  corpus  is  no  protection  to  such  officer, 
who  is  answerable  for  contempt  of  court  for 
refusing  obedience  to  the  writ.  (Ex  parte 
Field,  9  Fed.  Cas.  No.  4761.) 


Sec.  757.  [Form  of  return.]  The  person  to  whom  the  writ  is  directed  shall 
certify  to  the  court,  or  justice,  or  judge  before  whom  it  is  returnable  the  true 
cause  of  the  detention  of  such  party. — (5  Feb.,  1867,  c.  28,  s.  1,  v.  14,  p.  385.) 

"If  the  party  is  not  in  the  custody  of  the       Dept.,  Sept.  17,  1914,  par.  7;  see  also  file  262G2- 
olficer  to  whom  the  writ  is  directed,  he  will  so        1625:41,  Inc.  1,  p.  26.) 
state  in  his  return."     (G.  O.   No.  121,  Navy 


405 


Sec.  767. 


Pt.2.  REVISED  STATUTES. 


The  Judiciary. 


The  following;  is  a  form  of  return  which  has 
been  used  in  such  a  case  (see  citation  last 
above  noted): 

"Return  of  Respondent. 

"U.S.S. , 

"Hampton  Roads,  Va.,  Nov.  13,  1912. 
"In  re  W.   \V.   D.  ,  Chief  Com- 
missary Steward,  U.  S.  Navy. 
"To  the   Honorable  The  Judge  of  the 
U.  S.  District  Court,  Eastern  District 
of  N'irginia: 
"The     respondent,     Captain     J.     A. 

H ,  U.  S.  Navy,  having  been  served 

a   writ   for   the    production   of   W.    W. 

D ,  respectfully  makes  return  and 

states  that  the  said  W.  W.  D is  not 

now  under  his  command. 

"J    \   jj_ 

"Captain,  U.  S.  Navy, 


"Commanding  U.  S.  S.- 

For  form  of  return  filed  in  the  case  of  an  officer 
of  the  Navy  who  applied  for  a  writ  of  habeas 
corpus  while  under  arrest  awaiting  trial  by 
court-martial,  but  not  in  actual  custody,  merely 
being  confined  "to  the  limits  of  the  city,  "  in 
which  such  trial  was  to  be  had,  see  Wales  v. 
WTiitney,  114  U.  S.,  567. 

The  following  form  of  return  has  been 
prescribed  by  the  Secretary  of  the  Navy  for  the 
guidance  of  officers  on  whom  writs  of  habeas 
corpus  are  served  by  Federal  courts  or  judges 
(see  Naval  Courts  and  Boards,  1917): 

• 

"In  the  District  Court  of  the  United  States 
for  the  (Eastern)  District  of  (Virginia). 


"In  the  Matter  of 
A F.  B- 


IReturn    of    re- 
— ./     spondent. 

"Upon    application    for    writ    of    Habeas 
Corpus. 

"To  the  Honorable  G— H.  R , 


Judge  of    said   Court    {or    To  the  said 
Court): 

"1.  Comes   now   M H.    C , 

captain,   U.    S.    Navy  {or    U.   S.   Marine 

Corps),  commanding  officer  of  the  , 

and  by  way  of  return  to  the  writ  of  habeas 
corpus  issued  herein,  states,  in  conformity 
with  the  provisions  of  section  757  of  the 
Revised  Statutes  of  the  United  States,  as 
follows,  to  wit: 

"2.  That  the  said  A F.  B 

enlisted  in  the  United  States  Navy  {or  in 

the  United  States  Marine  Corps)  as 

on  the day  of ,  19 — ,  at  (Boston, 

Massachusetts),  for  a  term  of  four  years 
from  that  date. 

"3.  That  the  said  A F.  B , 

at  the  time  of  his  enlistment  as  aforesaid, 
stated  on  oath  that  ho  was  born  on  the 

day  of ,  1— — ,  thus  making 

him  more  than  eighteen  years  of  age,  as  will 
appear  from  a  copy  of  the  enlistment  record 

of  said  A— F.  B ,  hereto  attached 

asapartof  thisrotiu'n;  that  since  the  enlist- 
ment of  said  A F.  B he  has 

received  pay  and  allowances  from  time  to 

time  thereunder;  that  on   the day 

of ,  19—,  the  said  A F.  B 

was  detained  and  recommended  for  trial  by 


general  court-martial  for  fraudulent  enlist- 
ment in  the  United  States  Navy,  in  viola- 
tion of  the  act  of  (.'ongress  approved  March 
3,  1893,  United  States  Statutes  at  Large, 
volume  twenty-seven,  page  seven  hundred 
and  sixteen ;  and  that  said  action  was  before 
the  issuing  of  the  writ  herein. 

"4.  That  the  said  A F.  B 

deserted  from  said  United  States  Navy  {or 
United  States  Marine  Corps),  at  (Boston, 
Massachusetts),    on     the    - — — ■ —    day    of 

,    19 — ,    and    rejuained    absent    in 

desertion    until    he  was  apprehended  at 

(Norfolk,  Virginia),  on  the  day  of 

— ;— — •,  19 — •,  and  was  thereupon  com- 
mitted to  the  custody  of  the  respondent,  as 
commanding  officer  of  the  • — ;  and  that 


the  said  A- 


F.  B- 


—  was  detained 


and  recommended  for  trial  by  general  court- 
martial  for  said  offense  of  desertion  in  vio- 
lation of  section  1624  of  the  Revised 
Statutes  of  the  United  States. 

"5.  That  the  said  A F.  B 

has  been  duly  arraigned  and  tried  for  the 
said  offenses  before  a  general  court-martial 
convened  by  order  of  the  Secretary  of  the 
Navy  (and  is  now  held,  awaiting  the  action 
of  the  convening  authority  upon  the  pro- 
ceedings and  findings  of  said  court)  {or 
was  convicted  thereof  by  said  court  and 
was  sentenced  to ,  which  sen- 
tence was  appro^Td)  {or  was  mitigated  to 

,  and  approved)  on  the 

day  of ,  19 — ,  by  the  Secretary  of  the 

Navy,  as  required  by  article  53,  section 
1624,  of  the  Revised  Statutes  of  the  United 
States.  (A  copy  of  the  order  promulgating 
said  sentence  and  the  action  of  the  Secre- 
tary of  the  Navv^  thereon  is  hereto  at- 
tached.) 

"6.  This  respondent   here   produces  in 

court  the   body  of  the  said   A F. 

B ,   as  commanded   by  the  writ  of 

habeas  corpus  issued  in  this  matter  as 
aforesaid,  but  he  prays  that  your  honor 
{or  this    honorable    court)   will   refuse   to 

discharge  the  said  A F.  B ,  and 

will  return  and  remand  him  to  the  custody 
of  this  respondent. 

"Respectfully  submitted. 

"M— H.  C , 

"Captain,  U.  S.  Navy, 

"Commanding . 

" ,  19—. 

"  Var.  1. — If  the  offense  is  not  fraudulent 
enlistment  by  a  minor  under  18  years  of 
age,  omit  paragraph  3  above. 

"Var.  2. — If  the  offense  is  fraudulent 
enlistment  by  a  minor  under  18  years  of 
age  without  desertion,  omit  paragraph  4 
above. 

"Var.  3. — If  the  offense  is  neither  fraudu- 
lent enlistment  by  a  minor  under  18  years 
of  age,  nor  desertion,  omit  paragraphs  3 
and  4  above  and  substitute  an  appropriate 
description  of  the  offense  for  which  the 
accused  is  detained,  and  state  whether  or 
not  he  has  been  recommended  for  trial  by 
general  court-martial  for  said  offense. 

"Var.  4. — If  the  accused  has  not  been 
tried  by  general  court-martial,  omit  para- 
graph 5  above." 


406 


The  Judiciary. 


Pt.2.  REVISED  STATUTES. 


Sec.  761. 


Sec.  768.  [Body  of  party  to  be  produced.]  The  person  making  the  return 
shall  at  the  same  time  bring  the  body  of  the  party  before  the  judge  who  granted 
the  A\Tit.— (5  Feb.,  1867,  c.  28,  s.  1,  v.  14,  p.  385.) 


See  note  to  section  756,  Revised  Statutes. 

"  In  case  of  a  person  who  is  going  at 
large,  with  no  one  controlling  or  watching 
him,  or  detaining  him,  his  body  cannot  be  pro- 
duced by  the  person  to  whom  the  writ  is  di- 
rected, unless  by  consent  of  the  alleged  jirisoner, 
or  by  his  capture  and  forcible  traduction  into 


the  presence  of  the  court."  In  such  a  case 
there  is  nothing  to  support  a  habeas  corpus. 
(Wales  V.  Whitney,  114  U.  S.,  564;  see  note  to 
sec.  752,  R.  S.) 

"  If  the  party  is  not  in  the  custody  of  the 
officer  to  whom  the  writ  is  directed,  he  will  so 
state  in  hisreturn."    (See  note  to  sec.  757,  R.  S.) 


Sec.  769.  [Day  for  hearing.]  Wlien  the  writ  is  returned,  a  day  shall  be  set 
for  the  liearing  of  the  cause,  not  exceeding  five  days  thereafter,  unless  the  party 
petitioning  requests  a  longer  time. — (5  Feb.,  1867,  c.  28,  s.  1   v.  14,  p.  385.) 

See  note  to  section  756,  Revised  Statutes. 

Sec.  760.  [Denial  of  facts  in  the  return ;  amendments.]  The  petitioner  or  the 
party  imprisoned  or  restrained  may  deny  any  of  the  facts  set  forth  in  the  return, 
or  may  allege  any  other  facts  that  may  be  material  in  the  case.  Said  denials 
or  allegations  shall  be  under  oath.  The  return  and  all  suggestions  made  against 
it  may  be  amended,  by  leave  of  the  court,  or  justice,  or  judge,  before  or  after 
the  same  are  filed,  so  that  thereby  the  material  facts  may  be  ascertained. — 
(5  Feb.,  1867,  c.  28,  s.  1,  v.  14,  p.  385.) 

Sec.  761.  [Summary  hearing;  disposition  of  party.]  The  court,  or  justice, 
or  judge  shall  proceed  in  a  summary  way  to  determine  the  facts  of  the  case, 
by  hearing  the  testimony  and  arguments,  and  thereupon  to  dispose  of  the  party 
as  law  and  justice  require. —  (5  Feb.,  1867,  c.  28,  s.  1,  v.  14,  p.  385.) 


Summary  hearing. — "The  injunction  to 
hear  the  case  summarily,  and  thereupon  '  dis- 
pose of  the  party  as  law  and  justice  recpiire '  does 
not  deprive  the  court  of  discretion  as  to  the 
time  and  mode  in  which  it  will  exert  the  powers 
conferred  upon  it."  (Ex  parte  Royall,  117  U. 
S.,  251.) 

Issues  of  fact. — This  section  confers  ex- 
press power  upon  a  Federal  judge  in  halieas 
corpus  proceedings  to  pass  upon  questions  of 
fact;  accordingly,  where  a  soldier  was  arrested 
by  the  civil  authorities  of  a  State  upon  a  charge 
of  manslaughter  growing  out  of  the  killing  by 
him  of  a  young  woman  while  shooting  at  an 
escaping  prisoner,  Held,  that  the  Federal  judge 
was  empowered  in  habeas  corpus  proceedings 
to  inquire  into  the  facts  and  decide  that  the 
soldier  was  free  from  blame  and  therefore  not 
subject  to  prosecution  in  the  State  courts  for 
manslaughter.  (United  States  v.  Lipsett,  156 
Fed.  Rep.,  65;  see  also,  note  to  Constitution, 
Art.  I,  sec.  8,  clause  13,  under  ''III.  Jurisdic- 
tion of  Ci\-il  Authorities.") 

[However,  when  the  party  is  held  pursuant  to 
the  laws  and  regulations  governing  the  Navy, 
the  onljr  "facts"  which  the  civil  courts  may 
inquire  into  on  habeas  corpus  are  whether  the 
naval  authorities  have  jurisdiction.  (See  note 
to  sec.  753,  R.  S.)  AMiere  he  is  held  pursuant  to 
the  finding  of  a  court-martial  the  sufficiency  of 
the  evidence  is  no  part  of  such  facts.  (See  In 
re  Stupp,  23  Fed.  Cas.  No.  13563.)] 


Disposition  of  party  upon  subsequent 
change  of  status. — A  ^vrit  of  habeas  corpus 
was  issued  to  determine  the  legality  of  the 
confinement  of  a  Chinaman  held  by  the  immi- 
gi-ation  authorities  upon  order  of  deportation 
signed  by  the  "Acting  Secretary"  of  Labor,  it 
being  contended  that  such  officer  was  not  in 
fact  the  Acting  Secretary  at  the  time  the  order 
was  signed,  and  that  his  order  was  therefore 
illegal  and  void.  "WTiile  the  case  was  pending 
the  Secretary  of  Labor  personally  re\'iewed  the 
deportation  proceedings  and  affirmed  the  pre- 
\dous  order  signed  by  the  "Acting  Secretary." 
Thereupon  the  court  discharged  the  writ  and 
remanded  the  petitioner  to  the  custody  of  the 
immigration  authorities,  holding  that  in  view 
of  the  action  personally  taken  ])y  the  Secretary 
there  remained  "nothing  at  issue,"  and  that 
"courts  are  not  organized  to  do  idle  things,  but 
to  deternune  issues  presented,"  and  it  was  un- 
necessary to  examine  into  the  right  of  the 
"Acting  Secretarv."  (Ex  parte  Ching  Hing, 
224  Fed.  Rep.,  261.) 

Disposition  of  party  claiming  discharge 
from  Navy  on  ground  of  fraudulent  en- 
listraent. — It  is  the  policy  of  the  Navy  De- 
partment, upon  return  of  the  writ  in  fraudulent 
enlistment  cases  to  request  the  court  to  make 
the  order  of  discharge,  if  granted,  to  take  effect 
only  after  trial  and  punishment  by  naval  court- 
martial  for  the  statutory  offense  involved.  For 
cases  where  this  request  has  been  granted  and 


407 


Sec.  761, 


Pt.2.  REVISED  STATUTES. 


The  Judiciary. 


full  statement  of  this  policy,  Bee  file  2757-8  of 
August  27,  li)0(i.  (In  this  connection  see  pro- 
\ision  in  the  naval  appropriation  act  of  March 
3,  1915  (3S  Stat..  931).  that  any  minor  who 
fraudulently  procures  his  enlistment  in  the 
Navy  by  making  false  oath  as  to  age  'shall, 
upon  request  of  either  parent,  or,  in  case  of  their 
death,  by  the  legal  guardian,  be  released  from 
service  in  the  Na\'y,  u])on  payment  of  full  cost 
of  first  outfit,  unless,  in  any  given  case,  the 
Secretary,  in  his  discretion,  shall  relieve  said 
recruit  of  such  payment. ")_ 

A  minor  who  cnlista  while  under  the  statu- 
tory age  wdthout  the  reciuired  consent  of  his 
parents  or  guardian  is  "not  only  de  facto,  but 
de  jure,  a  soldier — amenable  to  military  juris- 
diction,"' and  can  not  seciu"e  his  discharge  upon 
habeas  corpus  proceedings  instituted  by  him- 
self. The  statutory  requirement  of  consent  in 
such  cases  "is  for  the  benefit  of  the  parent  or 
guardian.  It  means  simply  that  the  Govern- 
ment will  not  distiu"b  the  control  of  the  parent 
or  guardian  over  his  or  her  child  without  con- 
sent. It  gives  the  right  to  such  parent  or  guar- 
dian to  invoke  the  aid  of  the  court  and  secure 
the  restoration  of  a  minor  to  his  or  her  control; 
but  it  gives  no  pri\-ilege  to  the  minor."  (In  re 
Morrissev,  137  U.  S.,  157;  Solomon  v.  Daven- 
port, 87  Fed.  Rep.,  318.) 

Since  the  decision  of  the  Supreme  Court  in 
Morrissey's  case  (above  noted)  it  is  the  settled 
law  that  the  enlistment  of  a  minor  in  the  Army 
or  Navy  without  the  written  consent  of  his 
parents  or  guardian  and  against  the  prohibition 
of  the  statutes  of  the  United  States  is  not  void, 
but  voidable  only ;  that  it  is  good  as  to  the  minor 
but  voidable  at  the  instance  of  the  parent  or 
guardian.  But  not\\'ithstanding  such  enlist- 
ment is  voidable,  the  civil  courts  on  habeas 
corpus  will  not  interfere  to  discharge  one  who 
is  thus  enlisted,  "if  at  time  of  presentation  of 
petition  for  the  writ  he  has  been  arrested  and 
is  ])cing  held  on  any  charge  cognizalile  by  a 
military  court."  It  does  not  follow  from  the 
fact  that  such  an  enlistment  is  voidable  that 
the  enlisted  minor  may  obtain  immunity  from 
prosecution  for  an  offense  committed  by  him 
against  the  law  of  the  United  States.  (In  re 
Scott,  144  Fed.  Rep.,  79;  file  2757-1.  In  this 
case  the  minor  was  arrested  on  a  charge  of  fraud- 
ulent enlistment  preferred  against  him  by  his 
commanding  officer  to  the  Commandant  of  the 
Marine  Corps,  ^^^lile  said  charges  were  pending 
and  undetermined  the  minor's  father  applied 
for  a  writ  of  hal^eas  corpus;  the  court  denied  the 
petition  without  prejudice  to  the  petitioner  to 
renew  same  at  the  termination  of  the  military 
proceedings  and  at  the  expiration  of  the  sen- 
tence, if  any  be  imposed  thereunder;  see  also 
Dillingham  r.  Booker,  1G3  Fed.  Rep.,  (i9G;  16 
Ann.  Cas.,  127,  file  595G-6;  United  States  v. 
Pendleton,  1G7  Fed.  Rep.,  690.) 

\Miere  the  Secretary  of  the  Navy  preferred 
charges  against  a  minor  after  hearing  had  been 
had  upon  a  writ  of  habeas  corpus  gi-anted  upon 

{)etition  of  minor's  father  to  inquire  into  the 
egality  of  his  enlistment,  and  while  the  court 
had  the  matter  under  advisement  before  ren- 
dering a  decision,  Ueld,  that  although  the  en- 
listment was  voidable  at  the  instance  of  minor's 
father,  who  had  not  consented  thereto,  ne^■er- 
theless  he  could  not  be  discharged  from  the 


custody  of  the  naval  authorities  on  writ  of 
habeas  corpus  until  he  had  answered  and  sat- 
isfied the  cnarges  pending  against  him.  (U.  S. 
V.  Reaves,  126  Fed.  Rep.,  127;  file  15204.  In 
this  case  the  minor,  after  fraudulently  enlist- 
ing and  receiving  pay  from  the  (Government, 
deserted;  was  arrested  by  the  civil  authorities 
and  held  as  a  deserter;  his  father  sued  out  a 
writ  of  habeas  corpus;  the  chief  of  police  made 
return  on  Jan.  5,  1903,  the  hearing  of  which 
was  set  for  Jan.  15,  1903,  and  the  matter  held 
under  advisement  until  Feb.  16,  1903.  In  the 
meantime,  Feb.  12,  1903,  the  Secretary  of  the 
Navy  preferred  charges  against  the  minor  for 
desertion  and  fraudulent  enlistment,  which 
were  served  upon  the  prisoner.  His  discharge 
was  ordered  by  the  circuit coiut  (121  Fed.  Rep., 
848),  but  on  appeal  the  decision  was  reversed.) 

A  minor  under  18  years  of  age  enlisted  in  the 
Navy  without  the  consent  of  his  parents; 
deserted;  was  arrested  by  the  civil  authorities 
on  a  charge  of  desertion;  while  confined  for 
safe-keeping  his  father  applied  for  his  discharge 
on  habeas  corpus.  Held,  that  the  minor  was 
subject  to  arrest  and  punishment  for  desertion 
and  other  infractions  of  the  rules  and  regula- 
tions of  the  Navy,  and  can  not  be  discharged 
on  writ  of  habeas  corpus  pending  proceedings 
against  him  therefor.  (Ex  parte  Rock,  171 
Fed.  Rep.,  240;  see  also  In  re  Lessard,  134 
Fed.  Rep.,  305.) 

A  minor  under  the  age  of  18  years  enlisted 
in  the  Navy  without  the  consent  of  his  parents, 
who  petitioned  for  a  writ  of  habeas  corpus. 
In  the  meantime,  prior  to  the  suing  out  of  the 
writ,  said  minor  was  "detained  and  recom- 
mended" for  trial  by  court-martial  for  fraudu- 
lent enlistment.  Upon  the  hearing  it  did  not 
appear  that  charges  had  been  preferred  against 
him.  Held,  that  the  petitioners  are  entitled 
to  the  discharge  of  the  minor  on  habeas  corpus, 
and  the  right  can  not  be  denied  because  of 
contemplated  or  possible  court-martial  pro- 
ceedings against  the  minor  for  fraudulent 
enlistment,  especially  where  between  the  time 
demand  for  his  discharge  was  made  by  his 
parents  of  the  naval  authorities  and  the  pro- 
curing of  the  writ,  several  months  elapsed, 
during  which  no  proceedings  were  taken 
against  him.  (Ex  parte  Bakley,  148  Fed.  Rep., 
56;  affirmed  Dillingham  v.  Bakley,  152  Fed. 
Rep.,  1022;  file  5506-5;  compare  Dillingham 
V.  Booker,  163  Fed.  Rep.,  G9G,  16  Ann.Vas., 
127,  file  5956-6,  which  arose  in  the  same  juris- 
diction, and  in  which  the  minor  was  remanded 
to  the  custody  of  his  commanding  officer;  in 
the  latter  case  it  was  shown  beyond  question 
that  the  minor  was  being  held  for  trial  by  court- 
martial  for  desertion.) 

An  enlisted  man  arrested  by  a  civil  officer 
as  a  deserter  from  the  Navy  will  not  be  dis- 
charged on  habeas  coi-pus  upon  the  allegation 
that  he  was  intoxicated  at  the  time  of  enlist- 
ment. "It  seems  to  me  illogical  to  say  that  a 
man  can  commit  a  crime  and  when  arrested 
obtain  a  discharge  on  the  ground  that  the 
original  enlistment  was  not  regular  or  proper." 
(In  re  Hamilton  and  Carroll,  Superior  Court, 
Fulton  County  (Ga.),  Atlanta  Circuit,  file 
■  7969  and  7988-04;  see  also  In  re  McVey,  23 
Fed.  Rep.,  878.) 


408 


The  Judiciary. 


Pt.2.  REVISED  STATUTES. 


Sec.  761. 


An  enlisted  soldier  can  not  avoid  a  charge 
of  desertion  by  showing  at  the  time  when  he 
voluntarily  enlisted  he  had  passed  the  age  at 
which  the  law  allows  recruits  to  be  enlisted  for 
the  Army.     (In  re  Grimley,  137  U.  S.,  147.) 

Minors  between  the  ages  of  18  and  21  years 
may  be  enlisted  in  the  Navy  without  the  con- 
sent of  their  parents  or  guardians,  being  in- 
cluded in  the  term  "other  persons"  in  section 
1418,  Revised  Statutes,  as  amended.  (Thomas 
V.  Winne,  122  Fed.  Rep.,  395;  see  also  In  re 
Doyle,  18  Fed.  Rep.,  3(39;  In  re  Norton,  98 
Fed.  Rep.,  606.)  The  age  at  which  an  infant 
shall  be  competent  to  do  any  acts  or  perform 
any  duties,  civil  or  military,  depends  wholly 
upon  the  legislature.  (In  re  Morrissey,  137 
U.  S.,  157.) 

Disposition  of  party  claiming  discharge 
from  Marine  Corps  on  ground  of  fraudu- 
lent enlistment. — The  Marine  Corps  is  not 
an  independent  organization,  but  is  part  of  the 
Navy  rather  than  of  the  Army;  and  sections 
1418-1419,  Revised  Statutes,  which,  taken 
together,  authorize  the  enlistment  of  minors 
over  18  years  of  age  to  serve  in  the  Navy  without 
the  consent  of  their  parents  or  guardians,  apply 
to  enlistments  in  the  Marine  Corps  as  well; 
so  that  a  minor  who  has  enlisted  in  the  Marine 
Corps  -when  over  18  years  of  age  will  not  be  dis- 
charged from  the  custody  of  the  officers  of  the 
Marine  Corps  in  habeas  corpus  proceedings 
brought  by  the  father,  who  did  not  consent  to 
the  enlistment.  (Elliott  v.  Harris,  24  App. 
D.  C,  11,  follovs-ing  In  re  Doyle,  18  Fed.  Rep., 
369,  and  overruling  In  re  Shugrue,  3  Mackey 
(D.  C),  325,  as  being  "in  manifest  conflict 
with  the  principle  upon  which  the  subsequent 
case  of  United  States  v.  Dunn  (120  U.  S., 
249)  -was  decided  by  the  Supreme  Court  of 
the  United  States."  See  also  file  26251- 
6297:7,  May  18,  1914,  and  26251-6297:8,  June 
4,  1914.  But  see  McCalla  v.  Facer  (144  Fed. 
Rep.,  61),  in  which  the  court  approved  and 
followed  In  re  Shugrue,  apparently  overlook- 
ing the  fact  that  said  case  had  been  overruled.) 

Section  1117,  Revised  Statutes,  proAdding 
that  no  person  under  21  years  of  age  shall  be 
enlisted  or  mustered  into  the  military  service  of 
the  United  States,  refers  exclusively  to  enlist- 
ments in  the  Army  and  does  not  include  enlist- 
ments in  the  Navy  or  Marine  Corps.  (Elliott  v. 
Harris  24  App.  D.  C,  11.) 

As  to  status  of  Marine  Corps,  see  note  to  sec- 
tion 1621,  Revised  Statutes. 

Appeal  from  decision  of  court  or  judge 
granting  -writ. — It  is  required  by  regulations 
of  the  Navy  Department  (published  in  Naval 
Courts  and  Boards,  1917),  that  whenever  an 
adverse  decision  is  rendered  in  habeas  corpus 
proceedings  against  any  officer  of  the  Navy  or 
Marine  Corps,  such  officer  or  counsel  shall  note 
an  appeal  pending  instructions  from  the  Navy- 
Department,  and  shall  immediately  make  re- 
port to  the  Judge  Advocate  General,  forwarding 
to  him  direct  a  copy  of  the  opinion  of  the  court 
as  soon  as  it  can  be  obtained. 

Insane  persons  in  the  Army  and  Navy  law- 
fully committed  by  the  Secretary  of  War  or  Sec- 
retary of  the  Navy  to  the  Government  Hospital 
for  the  Insane  should  continue  to  be  held  by 
the  superintendent  of  that  hospital  until  the 
court  orders  otherwise  or  imtil  they  are  cured. 


The  United  States  attorney  for  the  District  of 
Columbia  has  been  instructed  to  advise  the 
Department  of  Justice  of  any  proceedings 
through  which  such  patients  secure  their  release 
from  the  hospital,  so  that  consideration  can  be 
given  to  the  question  of  securing  a  review  of  the 
case  by  the  court  of  appeals.  In  this  way  an 
authoritative  ruling  can  be  had  which  will  set 
at  rest  any  question  as  to  the  right  of  the  super- 
intendent to  hold  persons  after  their  discharge 
from  the  Army  or  the  Navy.  (File  26251- 
4927-10,  July  8,  1911,  quoting  letter  from  De- 
partment of  Justice  to  the  Interior  Department, 
dated  Mar.  28,  1912.) 

Arrest  of  petitioner  after  discharge. — 
An  enlisted  man  of  the  Marine  Corps,  discharged 
on  habeas  corpus  proceedings,  was  afterwards 
arrested  upon  the  charge  of  perjury  in  connec- 
tion with  his  sworn  statements  at  time  of  enlist- 
ment and  held  for  trial  in  the  civil  courts  of  the 
United  States  at  the  instance  of  the  Navy  De- 
partment. (File  5939-1,  Oct.  12,  1906.)  Later 
the  prosecution  was  discontinued,  because  of 
the  peculiar  circumstances  of  hardship  which 
it  involved,  the  Secretary  of  the  Na\'y  con- 
curring in  the  recommendation  of  the  United 
States  attorney  to  this  effect.  (File  5939-7, 
Feb.  18,  1907.)  In  this  connection  see  U.  S.  v. 
Chung  Shee  (71  Fed.  Rep.,  277),  holding  that 
the  discharge  of  the  party  upon  habeas  corpus 
is  res  judicata  as  to  the  issues  of  law  and  fact 
involved,  and  that  he  is  not  subject  to  reaiTest 
for  the  same  cause.  Compare  In  re  White  (45 
Fed.  Rep.,  237)  and  Ex  parte  Kaine  (14  Fed. 
Cas.,  No.  7597),  the  latter  holding  that  a  deci- 
sion under  one  writ  refusing  the  discharge  of  a 
prisoner  is  no  bar  to  the  issuing  of  any  number 
of  other  successive  writs  by  any  coiu-t  or  m  agis- 
trate  having  jurisdiction,  and  accordingly  that 
the  decision  of  a  circuit  court  of  the  United 
States  dismissing  the  Avrit  and  remanding  the 
prisoner  was  no  bar  to  an  inqiiiry  by  a  justice  of 
the  Supreme  Com*t  of  the  United  States  upon  a 
habeas  corpus  issued  by  him  into  the  legality 
of  the  detention  of  the  prisoner.  (Upon  ques- 
tion whether  decision  adverse  to  petitioner  pre- 
vents a  new  petition  being  filed  for  the  same 
cause,  where  an  appeal  was  not  taken  see  King 
V.  McLean  Asylum,  64  Fed.  Rep.,  331.) 

The  Navy  Department  has  authority  under 
the  law  to  recommit  an  officer  to  the  Govern- 
ment Hospital  for  the  Insane  after  his  discharge 
therefrom  has  been  ordered  by  the  Supreme 
Court  of  the  District  of  Columbia  in  accordance 
with  the  finding  of  a  jury  that  he  is  of  sound 
mind.  However,  to  avoid  placing  itself  in  the 
position  of  disregarding  the  court's  action  suffi- 
cient time  should  elapse  and  new  evidence  be 
obtained,  so  that  a  second  habeas  corpus  pro- 
ceeding could  be  successfully  met.  (File 
8528-327,  Apr.  18,  1911.) 

Wliere  the  Supreme  Court  of  the  District  of 
Colum1)ia  decided  that  an  officer  of  the  Navy 
was  entitled  to  his  discharge  from  the  Govern- 
ment Hospital  for  the  Insane  but  the  chief 
justice  agreed  to  withhold  the  signing  of  an 
order  until  the  Navy  Department  could  be  com- 
municated with  and  be  heard  on  the  subject, 
the  Navy  Department  ordered  the  officer  in 
question  to  a  naval  hospital  for  treatment,  and 
decided  to  take  no  further  action  in  the  case. 
(File  8528-327:2,  Jan.  31,  1911.) 


409 


CHAPTER  SIXTEEN". 


WITNESSES'  FEES. 


Sec. 
848. 
849. 
850. 


Witnesses'  fees. 

No  officer  of  court  to  have  witness  fees. 
Witnesses  in  Government  service  allowed 
actual  expenses. 


Sec. 
851. 


Witnesses  transported  on  Government  or 
private  vessel. 


Sec.  848.  [Witnesses'  fees.]  For  each  day's  attendance  in  court,  or  before 
any  officer  pursuant  to  law,  one  dollar  and  fifty  cents,  and  five  cents  a  mile  for 
going  from  his  place  of  residence  to  the  place  of  trial  or  hearing,  and  five  cents 
a  mile  for  returning.  When  a  witness  is  subpoenaed  in  more  than  one  cause 
between  the  same  parties,  at  the  same  court,  only  one  travel  fee  and  one  per 
diem  compensation  shall  be  allowed  for  attendance.  Both  shall  be  taxed  in 
the  case  first  disposed  of,  after  which  the  per  diem  attendance  fee  alone  shall  be 
taxed  in  the  other  cases  in  the  order  in  which  they  are  disposed  of. 

When  a  witness  is  detained  in  prison  for  want  of  security  for  "his  appearance, 
he  shall  be  entitled,  in  addition  to  his  subsistence,  to  a  compensation  of  one 
dollar  a  day.  [See  §§  879,  881.]— (26  Feb.,  1853,  c.  80,  s.  3,  v.  10,  p.  167;  1 
May,  1876,  c.  88,  v.  19,  p.  41;  Dennis  v.  Eddy,  12  Blatch.,  195.) 


Witnesses  before  naval  courts  are  to  be  allowed 
fees  and  mileage  at  the  rates  provided  for 
witnesses    in    the    United  States  district 
courts  for  the  State,  Territory,  or  district  in 
which  such  naval  court  is  held.     (Act  Feb. 
16,  1909,  sec.  12,  35  Stat.,  622.) 
Witness  fees  allowed  for  giving  depositions  for 
use  in   Federal  courts — see  section  870, 
Revised  Statutes. 
Witness  fees  allowed  for  giving  depositions  for 
use  in.  State  courts — see  section  874,  Re- 
vised Statutes. 
Witness  fees  allowed  for  giving  depositions  for 
use  before  departments  in  pending  claims — 
see  section  185,  Revised  Statutes. 
Witnesses  in  Government  employ — see  section 

850,  Revised  Statutes. 
Witnesses  in  United  States  courts  in  Wyoming, 
Montana,  Washington,  Oregon,  California, 
Nevada,     Idaho,     Colorado,     Utah,     New 
Mexico,  and  Arizona  are  allowed  $3  a  day 
during  attendance   and    necessary   travel 
time;  and  15  cents  a  mile  for  travel  by 
stage  or  private  conveyance;  and  5  cents 
a   mile  for  other  travel.     (Act  May   27, 
1908,  sec.  1,35  Stat.,  377.) 
Witnesses  in  courts  in  District  of  Columbia  are 
allowed  $1.25  a  day  and  5  cents  a  mile  com- 
ing and  returning  when  summoned  from 
without  the  District.     (Sec.  1]  14.  Code,  D. 
C,  act  Mar.  3,  1901,  31  Stat.,  1367). 
Courts-martial.  —  Section    1202,    Revised 
Statutes,  which  authorizes  judge  advocates  of 
Army  courts- martial  "to  issue   like  process  to 
compel  witnesses  to  appear  and  testify  which 
courts    of    criminal    jurisdiction    within    the 
State,  Territory,  or  District  where  such  mili- 
tary courts  shall  be  ordered  to  sit,  may  lawfully 


issue,"  operates  to  make  applicable  to  such 
courts-martial  the  provisions  of  section  848, 
Revised  Statutes,  fixing  the  amount  of  fees 
and  mileage  of  such  witnesses  before  courts  of 
the  United  States.  As  there  is  but  one  statute 
upon  the  subject  of  witnesses  attending  in 
court  or  before  an  officer,  I  feel  compelled  to 
hold  that  the  words  ' '  in  court "  are  Inroad  enough 
to  include  a  court-martial,  and  that  the  analogy 
existing  between  what  is  exacted  of  a  witness, 
both  in  the  matter  of  attendance  upon  and  the 
giving  of  testimony,  whether  in  a  civil  or 
criminal  court  on  the  one  hand  or  in  a  court- 
martial  on  the  other,  is  so  great,  coupled  with 
the  fact  that  there  is  but  one  statute,  as  above 
stated,  regulating  the  compensation  of  wit- 
nesses in  attendance  upon  any  court  or  any 
officer  pursuant  to  law,  that  I  see  no  way  of 
escape  from  the  conclusion  that  a  witness  in 
attendance  upon  a  court-martial  vshall  be  paid 
the  same,  and  no  more  than  is  paid  to  a  wit- 
ness in  attendance  upon  a  civil  or  criminal 
court.  Since  there  is  a  statute  regulating  the 
amount  of  per  diem  and  traveling  expenses  of 
a  witness  in  attendance  "in  court,"  it  seems 
clear  to  my  mind  that  that  shall  be  made  ap" 
plicable  to  cover  the  compensation  of  a  witness 
"in  a  court-martial"  rather  than  leave  it  to 
the  discretion  of  even  so  high  an  authority 
as  that  of  the  honorable  Secretary  of  War. 
(1  Comp.  Dec,  79.  In  this  case  the  War  De- 
partment took  the  position  that  the  appropri- 
ation for  compensation  of  witnesses  attending 
courts-martial  is  to  be  expended  under  the 
rules  and  regulations  prescril:)ed  by  the  Sec- 
retary of  War,  and  the  rate  of  compensation  is 
a  matter  to  be  left  entirely  to  the  discretion  of 
the  Secretary  of  War.    The  Comptroller  took 


410 


The  Judiciary. 


Pt.2.  REVISED  STAT UTES . 


Sec.  848. 


the  %'lew  that  there  being  a  statute  in  force 
regulating  the  compensation  of  witnesses  in 
attendance  upon  courts  and  before  judges  and 
others  authorized  to  compel  their  attendance, 
it  was  applicable  also  to  a  witness  compelled 
by  process  of  law  to  attend  Ijefore  a  court- 
martial;  and  accordingly  concluded  that 
civilian  witnesses  duly  sulipoenaed  to  attend 
before  a  court-martial  are  entitled  only  to  such 
compensation  as  is  paid  to  witnesses  in  attend- 
ance upon  United  States  courts.) 

A  military  commission  is  not  a  court-martial. 
(Dig.  Comp.  Dec,  89.) 

For  other  cases,  see  below,  "Expert  wit- 
nesses"; and  see  note  to  section  850,  Revised 
Statutes. 

Departmental  regulations  govern  the  use 
of  departmental  appropriations,  but  do  not 
apply  to  appropriations  for  expenses  of  wit- 
nesses, which  are  by  law  audited  by  and  dis- 
bursed upon  order  of  the  court.  (18  Comp. 
Dec,  992,  citing  U.  S.  v.  Sanborn,  135  U.  S., 
271,  284;  see  also  "Courts-martial,"  above.) 

Fees  allowed  for  Sunday. — I  have  not 
found  any  case  specifically  holding  that  under 
section  848,  Revised  Statutes,  which  provides 
for  compensation  to  witnesses  for  attendance  in 
Federal  courts,  a  witness  is  entitled  to  a  per 
diem  for  Sunday  when  obliged  to  remain  over 
from  one  week  to  another  in  the  hearing  of  a  case . 
There  are  cases,  however,  to  that  effect  in  State 
courts,  under  State  laws  similar  to  section  848. 
It  has  also  been  held  that  a  witness  in  attend- 
ance upon  the  court,  although  not  actually  tes- 
tifying, is  entitled  to  his  per  diem  compensation 
for  the  days  which  he  thus  necessarily  attends. 
It  would  seem,  therefore,  not  improper,  when 
in  the  discretion  of  the  court  or  commissioner 
such  action  is  necessary,  to  allow  a  witness  his 
per  diem  for  Sunday  under  the  circumstances 
stated.     (1  Comp.  Dec,  252.) 

Witness  in  two  cases. — A  witness  who  at- 
tended under  subpoenaes  on  behalf  of  the 
United  States  before  the  same  commissioner  on 
the  same  day  in  two  cases  against  different 
defendants,  and  was  sworn  and  testified  in 
each  case  and  was  allowed  a  separate  per  diem 
therefor  in  each  case  for  the  same  day  by  the 
commissioner,  is  entitled  to  the  separate  per 
diem  as  allowed.     (14  Comp.  Dec,  378.) 

A  witness  who  attends  before  a  United  States 
commissioner  in  Kentucky  in  different  cases 
on  the  same  day  is  entitled  under  section  848, 
Revised  Statutes,  to  5  cents  a  mile  for  each 
mile  he  actually  travels  in  going  from  his  place 
of  residence  to  the  place  of  hearing,  and  5  cents 
a  mile  for  returning,  but  is  not  entitled  to 
double  or  constructive  mileage.  (15  Comp. 
Dec,  796.) 

Voluntary  attendance  of  witness. — 
Where  a  person  voluntarily  present  at  proceed- 
ings before  a  United  States  commissioner  is 
called  upon  to  testify,  he  is  entitled  for  his 
services  as  such  witness  to  the  usual  per  diem, 
but  not  to  mileage.     (11  Comp.    Dec,   792.) 

Amount  of  fees  can  not  be  exceeded. — 
Section  848  is  mandatory  and  limits  the  amount 
that  may  be  paid  to  any  witness  under  ordi- 
nary circumstances,  however  much  said  wit- 
ness may  lose  in  obeying  a  summons  of  a  court. 
Accordingly,  held  that  a  Chinese  in.spectorin 
charge  is  not  entitled  to  reimbursement  for  an 


amount  paid  by  him  to  a  railroad  employee 
residing  within  the  jurisdiction  of  the  court's 
process  for  loss  sustained  by  such  employee  by 
reason  of  his  serving  as  a  witness  for  the  Gov- 
ernment in  Chinese-exclusion  cases,  for  which 
service  such  employee  received  from  the  Gov- 
ernment fees  and  mileage  as  provided  bv  sec- 
tion 848.  (12  Comp.  Dec,  660;  see  also  6  Op. 
Atty.  Gen.,  356.) 

Additional  allowance  to  witness  outside 
of  jurisdiction. — If  the  Secretary  of  the  Treas- 
ury, in  the  exercise  of  his  discretion,  deems  it  a 
necessary  expense  in  the  enforcement  of  the 
Chinese-exclusion  acts,  the  sum  of  $68  may  be 
paid  from  the  appropriation  for  enforcing  said 
acts,  to  secure  the  attendance  in  a  Chinese 
smuggling  case  of  an  important  witness  living 
in  Mexico,  who  refuses  to  attend  without  such 
payment.     (4  Comp.  Dec,  106.) 

The  appropriation  for  expenses  of  collecting 
the  revenue  from  customs  is  applicable  to  the 
compensation  and  expenses  of  witnesses  under 
agreements  to  come  within  the  jurisdiction  of 
the  courts,  and  the  expenses  incurred  by  an 
assistant  district  attorney  in  collecting  evidence 
when  the  testimony  of  the  witnesses  and  the 
evidence  collected  are  necessary  in  proceedings 
for  the  forfeiture  of  goods  seized  by  customs 
officers.     (4  Comp.  Dec,  519.) 

The  Secretary  of  the  Treasury  is  authorized 
to  enter  into  an  agreement  to  compensate  a 
witness  whose  testimony  is  necessary  in  the 
prosecution  of  a  smuggler,  for  coming  within 
the  jurisdiction  of  the  courts,  and  to  reimburse 
him  for  the  necessary  expenses  incurred  in 
performing  the  service.  The  appropriation  for 
prevention  and  detection  of  frauds  upon  the 
customs  service  is  applicable  to  the  expenses 
of  procuring  evidence  to  be  used  in  the  prosecu- 
tion of  a  smuggler.     (4  Comp.  Dec,  495.) 

If  the  Secretary  of  Commerce  and  Labor  in  the 
exercise  of  his  discretion  deems  it  a  necessary 
expense  in  the  enforcement  of  the  alien  im- 
migration act,  the  sum  of  $3.50  per  day  may 
be  paid  by  him  from  the  appropriation  for  the 
expenses  of  regulating  immigration  to  secure 
the  attendance  of  a  witness  living  in  Mexico 
who  refuses  to  attend  unless  paid  that  amount 
in  addition  to  the  witness  fee  provided  for  by 
section  848  of  the  Revised  Statutes.  (12  Comp. 
Dec,  438,  citing  4  Comp.  Dec,  106.) 

A  United  States  commissioner  has  no  au- 
thority to  issue  process  to  be  served  outside  of 
his  district.  Accordingly,  a  witness  attending 
a  hearing  before  a  commissioner  in  a  district 
other  than  that  of  the  residence  of  such  witness 
is  entitled  to  mileage  only  from  a  point  within 
the  commissioner's  district  nearest  the  resi- 
dence of  the  witness  to  the  place  of  the  hearing 
and  return  therefrom  to  said  point;  if  the  sub- 
poena is  issued  in  such  case  by  a  United  States 
court,  whose  process  runs  into  any  other  district, 
the  witness  would  be  entitled  to  mileage  for 
going  from  his  residence  to  the  place  of  hearing 
and  returning  therefrom.  (14  Comp.  Dec, 
752.) 

A  United  States  commissioner  is  not  au- 
thorized to  issue  a  subpoena  for  a  witness  outside 
of  his  district,  and  a  witness  attending  before 
a  commissioner  upon  a  subpoena  issued  by 
him  is  entitled  to  mileage  for  travel  within 
his  district  only.     (9  Comp.  Dec,  121.) 


54641°— 22 27 


411 


Sec.  848. 


Ft.  2.  REVISED  STATUTES. 


The  Judiciary. 


A  subpoena  issued  under  section  4  of  the 
act  of  January  31,  1903  (32  Stat.,  790,  relative 
to  depositions  for  use  before  registers  and  re- 
ceivers of  the  land  ollice)  does  not  run  outside 
of  the  county  in  which  the  witness  resides; 
and  when  a  witness  in  obedience  to  such 
subpoena  testifies  in  another  county,  said  wdt- 
ness  is  entitled  only  to  mileage  from  his  resi- 
dence to  the  border  of  the  county  nearest  to 
the  pliice  where  the  deposition  is  taken. 
(17  Oomp.  Dec,  983.) 

Expense  of  witness  in  preparing  to  tes- 
tify.— Wlien  it  becomes  necessary  for  a  witness 
to  proceed  from  (^hicago  to  New  York  and 
return,  for  the  purpose  of  refreshing  his  memory 
before  testifying  in  an  antitrust  case  in  Chicago, 
compensation  and  expense  of  travel  by  such 
witness  may  be  paid  from  the  appropriation 
"Enforcement  of  the  Anti-Trust  laws,  etc., 
1912. "  This  preliminary  preparation  could  not 
h  ave  been  rec^uired  of  him  under  his  obligation 
as  a  witness  m  the  case,  and  he  did  not.  by 
reason  of  this  employment,  become  entitled  to 
the  fees  and  mileage  allowed  by  law  to  wit- 
nesses. He  is  entitled,  however,  subject  to 
the  Attorney  General's  approval,  to  such  com- 
pensation as  may  have  been  agreed  upon, 
whether  fixed  by  reference  to  fees  of  witnesses 
or  otherwise.  The  appropriation  for  fees  of 
witnesses  is  clearly  not  applicable,  as  it  applies 
only  to  mileage  and  attendance  in  court  or 
before  any  officer  pursuant  to  law.  The  ex- 
pense was  incident  to  the  preparation  of  the 
case  rather  than  to  its  trial.  (18  Comp.  Dec, 
541.) 

Expert  witnesses.— A  witness  is  one  who 
may  be  compelled  to  testify  concerning  a  trans- 
action which  he  has  fortuitously  beheld;  an 
expert  is  one  who  testifies  as  to  his  own  self- 
acquired  knowledge,  which  he  can  not  be  com- 
pelled to  impart  by  the  expedient  of  calling 
him  as  a  -witness.  (In  re  Maj.  William  Smith, 
24  Ct.  Cls.,  209;   0.  M.  O.  19-1915,  p.  4.) 

The  Government  can  not  acquire  the  serv- 
ices, skill,  or  knowledge  of  an  expert  without 
his  consent  and  without  just  compensation. 
(In  re  Maj.  William  Smith,  24  Ct.  Cls.,  209.) 

The  employment  of  experts  before  a  court- 
martial  is  within  the  legal  and  proper  discretion 
of  the  Secretary  of  War,  and  his  order  to  employ 
and  pay  them  is  official  authority  to  an  officer 
who,  in  the  ordinary  discharge  of  his  duty, 
makes  such  payments,  and  protects  him  from 
the  summary  remedy  of  having  his  pay  stopped . 
(In  re  Maj .  William  Smith,  24  Ct.  Cls. ,  209.  As 
to  emplojTTient  of  expert  witnesses  by  accused 
before  na^al  courts-martial,  see  note  to  Consti- 
tution, sixth  amendment.) 

Where  a  civilian  physician  was  subpoenaed  to 
attend  before  a  naval  court  of  inquiry  as  an 
ordinary  witness  to  testify  to  facts  within  his 
knowledge,  he  is  entitled  merely  to  ordinary 
witness  fees,  notwithstanding  that  in  the  course 
of  his  examination  his  testimony  may  have  de- 
veloped into  the  nature  of  expert  testimony. 
In  both  civil  and  military  courts,  compensation 
for  expert  testimony  is  a  matter  for  determina- 
tion between  the  witness  and  the  party  calling 
him  for  such  testimony.  In  the  Na\^%  if  the 
testimony  of  an  expert,  as  such,  is  desired,  the 
question  is  one  which  must  be  submitted  in 
each  specific  instance  to  the  Navy  Department 


for  its  determination  as  to  whether  the  circum- 
stances warrant  the  expenditure.  In  this  case, 
the  judge  advocate  having  summoned  the 
claimant  as  an  ordinary  witness,  and  having  no 
authority  to  summon  him  for  any  other  purpose, 
the  claim  for  compensation  as  an  expert  witness 
can  not  be  approved.  (File  26276-105,  Mar. 
16,  1915.) 

The  compensation  of  expert  witnesses,  the 
expenses  of  collecting  evidence,  and  the  pur- 
chase and  preparation  of  exhibits  in  connection 
with  suits  against  collectors  of  customs  may, 
under  the  long-established  practice,  be  paid 
from  the  appropriation  made  for  the  expenses 
of  collecting  the  revenue  from  customs.  (1 
Comp.  Dec,  249.) 

An  expert  witness  summoned  to  appear 
before  the  Board  of  United  States  General  Ap- 
praisers may  be  allowed,  in  addition  to  the 
ordinary  witness  fees,  such  sum  as  the  Secretary 
of  the  Treasury  may  direct,  payable  from  the 
appropriation  for  collecting  the  revenue  from 
customs.     (2  Comp.  Dec,  449.) 

Where  the  employment  of  expert  witnesses 
is  necessary  to  properly  enforce  the  pm-e  food 
and  drugs  act,  the  Secretary  of  Agriculture  is 
authorized  to  employ  and  pay  such  expert  wit- 
nesses from  the  appropriations  made  to  caiTy 
into  effect  the  pro\isions  of  said  act.  (15 
Comp.  Dec,  757.) 

Interpreter  not  witness. — The  expenses 
of  a  person  M'ho  did  not  attend  as  a  witness  in 
the  case,  but  who  was  present  as  an  "inter- 
preter," are  not  chargeable  to  the  appropriation 
"Fees  of  witnesses,  United  States  courts,"  but 
to  the  appropriation  "Miscellaneous  expenses, 
United  States  courts,"  upon  the  authorization 
and  approval  of  the  Attornev  General.  (16 
Comp.  Dec,  92.) 

Increased  allowances  in  certain  States. — 
The  act  of  August  3,  1892  (27  Stat.,  347,  super- 
seded by  act  of  May  27, 1908,  sec.  1,  35  Stat.,  377, 
noted  above),  does  not  apply  to  witnesses  at- 
tending before  United  States  commissioners,  as 
such  proceedings  are  not  in  any  court  of  the 
United  States.     (2  Comp.  Dec,  66.) 

Larger  fees  and  mileage  are  allowed  to  wit- 
nesses in  some  districts  than  in  others,  because 
local  conditions  make  the  hardships  and  ex- 
pense of  travel  greater.  The  reason  does  not 
apply  where  the  deposition  of  a  witness  is  taken 
elsewhere  for  use  in  one  of  the  districts  where 
the  larger  allowance  is  paid  witnesses  for  testi- 
fying therein.  The  act  of  January  31,  1903  (32 
Stat.,  790),  relating  to  compulsory  attendance 
of  witnesses  before  registers  and  receivers  of  the 
land  office,  provides  that  when  the  witness 
resides  outside  of  the  county  in  which  the 
hearing  is  held,  any  party  to  the  proceedings 
may  take  his  testimony  by  deposition  in  the 
county  of  his  residence,  and  provides  further 
that  such  witness  "shall  receive  the  same  fees 
and  mileage,  and  be  subject  to  the  same  pen- 
alties in  all  respects,  as  in  cases  of  the  \'iolation 
of  sul)poena  to  appear  l)efore  the  register  or 
receiver  and  subject  to  the  same  limitations." 
The  act  provides  that  the  fees  and  mileage  of 
witnesses  l^ef ore  a  register  or  receiver  ' '  shall  be 
the  same  as  that  provided  by  law  in  the  district 
courts  of  the  United  States  in  the  district  in 
which  such  land  offices  are  situated."  Held, 
that  a  witness  whose  deposition  is  taken  under 


412 


The  Judiciary. 


Ft.  2.  REVISED  STATUTES. 


Sec.  850. 


the  act  of  January  31,  1903,  for  use  in  a  hearing 
before  a  register  or  receiver  of  the  General  Land 
Office  is  entitled  to  the  fees  allowed  to  witnesses 
in  the  United  States  district  court  in  the  district 
in  tvhich  the  deposition  is  taken.  (20  Com  p. 
Dec,  308,  overruling  16  Comp.  Dec,  153,  which 
held  that  witnesses  residing  in  New  York  City, 
while  testifying  in  the  county  of  their  residence 
by  deposition  before  a  commissioner  under  ap- 
pointment issued  by  the  authorized  ofhcers  of 
the  land  office  in  Wyoming,  are  entitled  to  $3 
a  day,  payable  in  advance  if  necessary  to  secure 
their  testimony,  this  being  the  amount  allowed 
by  the  act  of  May  27,  1908,  for  witnesses  in 
Wyoming,  and  the  law  providing  that  wit- 
nesses in  proceedings  before  registers  and  re- 
ceivers shall  be  entitled  to  the  same  fees  as 
provided  by  law  in  the  district  court  of  the 
United  States  in  the  district  in  which  such 
land  offices  are  located.) 

Such  witness,  testifying  by  deposition  in 
Alaska,  is  entitled  to  the  witness  fees  allowed 
in  the  United  States  district  court  in  the  judi- 
cial division  of  the  district  of  Alaska  in  which 
the  deposition  is  taken.       (20  Comp.   Dec, 

308.) 

Witness  against  the  United  States. — As 
a  general  rule,  when  the  United  States  is  a 
party  to  a  suit  it  is  not  liable  to  pay  costs  in- 
curred by  the  adverse  party,  even  though  such 
adverse  party  prevail  in  the  suit,  unless  there 
is  an  affinnative  statute  clearly  making  the 
United  States  liable  therefoi-.  (16  Comp.  Dec, 
693.) 

The  act  of  Augustl,  1888  (25  Stat.,  357),  re- 
lating to  condemnation  proceedings  to  acquire 
sites  for  public  bu'ldings,  does  not  imply  that 
the  United  States  should  stand  upon  the  same 
footing  in  a  State  as  would  a  quasi  public  cor- 
poration, or  other  artificial  entity  with  refer- 
ence to  the  payment  of  costs.  (16  Comp.  Dec, 
693.) 


When  the  defendant  in  condemnation  pro- 
ceedings has  incurred  expenses  in  procuring 
the  attendance  of  witnesses  upon  the  day  set 
for  trial,  and  the  case  was  on  said  day  continued 
upon  motion  of  the  district  attorney  and  was 
subsequently  dismissed  at  the  request  of  the 
Government,  and  there  is  no  Federal  or  State 
statute  clearly  authorizing  the  taxing  of  de- 
fendant's costs  against  the  Government  or  their 
payment  by  the  Government ,  such  expenses  are 
not  legally  payable  from  Government  funds. 
(16  Comp.  Dec,  693.) 

When  land  has  been  condemned  and  the  court 
in  rendering  judgment  includes  in  said  judg- 
ment or  award  certain  costs,  such  judgment  in- 
cluding the  costs,  would  be  a  legal  charge 
against  the  appropriation  to  acquire  the  site 
when  the  payment  of  the  judgment  was  made 
a  condition  precedent  to  vesting  title  in  the 
Government.     (16  Comp.  Dec,  693.)  _ 

Nothing  said  in  the  above  decision  isintended 
to  relieve  the  judicial  appropriations  from  the 
payment  of  fees  to  witnesses  subpoenaed  by 
and  for  the  United  States,  and  who  attend 
court  as  witnesses  for  the  Government  in  con- 
demnation proceedings,  when  such  witnesses 
are  paid  by  the  marshal  upon  order  of  the 
court.     (16  Comp.  Dec,  693.) 

For  other  cases,  see  "Courts-martial,"  under 
section  850,  Revised  Statutes,  "II.  Witnesses 
for  the  Government." 

Appropriation  from  which  paid. — A  wit- 
ness summoned  to  appear  before  the  board  of 
United  States  General  Appraisers  is  entitled 
to  the  allowances  for  witnesses  prescribed  in 
section  848,  Revised  Statutes,  payable  from  the 
appropriation  for  collecting  the  revenue  from 
customs.     (2  Comp.  Dec,  449.) 

For  other  cases,  see  decisions  noted  above 
under  this  section;  and  see  note  to  section 
850,  Revised  Statutes,  under  "V.  Appropria- 
tion from  which  Paid." 


Sec.  849.  [No  officer  of  court  to  have  witness  fees.]  No  officer  of  the  United 
States  courts,  in  any  State  or  Territory,  or  in  the  District  of  Columbia,  shall  be 
entitled  to  witness  fees  for  attending  before  any  court  or  commissioner  where 
he  is  officiating.— (16  Aug.,  1856,  c.  124,  s.  8,  v.  11,  p.  50.  21  July,  1852,  c.  66, 
s.  1,  V.  10,  p.  16,  (22).) 

Sec.  850.  [Witnesses  in  Government  service  allowed  actual  expenses.] 
When  any  clerk  or  other  officer  of  the  United  States  is  sent  away  from  his  place 
of  business  as  a  witness  for  the  Government,  his  necessary  expenses,  stated  in 
items  and  sworn  to,  in  going,  returning,  and  attendance  on  the  court,  shall  be 
audited  and  paid;  but  no  mileage,  or  other  compensation  in  addition  to  his 
salary,  shall  in  any  case  be  allowed. — (26  Feb.,  1853,  c.  80,  s.  3,  v.  10,  pp. 
167,  168.) 


Witness  fees  in  general — see  note  to  section  848, 

Revised  Statutes. 
Expenses  of  subsistence  limited  to  $5  per  day. 

(Act  Apr.  6,  1914,  38  Stat.,  318;  22  Comp. 

Dec,  484.) 

I.  What  Persons  Included. 
II.  Witness  for  the  Government. 

III.  Nature  of  Proceedings. 

IV.  Character  op  Expenses  Allowed. 
V.  Appropriation  from  Which  Paid. 


I.  What  Persons  Included. 

The  words  "clerk  or  other  officer"  must 
be  construed  in  the  broad  sense  of  "official," 
and  includes  an  employee.  (9  Comp.  Dec,  276; 
17  Comp.  Dec,  586:  22_Comp  Dec,  126.) 

The  word  "officer"  in  this  section  has  been 
construed  in  the  broad  sense  of  "ofiicial"  and 
includes  an  employee.  (18  Comp.  Dec,  896, 
citing  5  Comp.  Dec,  797;  9  Comp.  Dec,  276; 
17  Comp.  Dec,  584.) 


413 


Sec.  850. 


Pt.2.  REVISED  STATUTES. 


The  Judiciary. 


A  department  clerk  when  subcepnaed  to 
testify  on  behalf  of  the  United  States  has  no 
rif2:ht  to  witness  fees,  but  his  expenses  are  allow- 
able.    (21  t)p.  Atty.  Gen.,  263.) 

See  below,  "Persons  in  Army  and  Navy." 

Waiver  of  salary. — An  oflicer  or  employee 
for  whom  a  salary  i.s  provided  by  law  can  not, 
by  relinquishing  his  salary,  become  entitled  to 
fees  or  mileage  as  a  witness  for  the  Govern- 
ment.    (9  Comp.  Pec,  27G.) 

Persons  in  Army  and  Navy. — An  officer 
of  the  NaA^  who  travels  to  testify  as  a  witness 
for  the  Government  is  entitled,  under  this  sec- 
tion, to  his  actual  and  necessary  expenses  only, 
notAvithstanding  that  such  officer  may  have 
been  ordered  by  his  superior  officer  to  travel 
for  that  purpose.  (19  Comp.  Dec,  752,  cit- 
ing 4  Comp.  Dec,  147;  but  see  below,  "Courts- 
martial,"  under  "III.  Nature  of  Proceedings." 

These  general  statutes  regulate  the  fees  for 
attendance  as  witnesses  before  civil  courts,  and 
the  compensation  to  Army  and  Navy  officers 
for  attendance  as  witnesses  before  such  courts 
must  conform  to  them,  whether  the  attendance 
is  in  obedience  to  a  subpoena  or  to  an  order 
from  the  head  of  their  department.  (10  Comp. 
Dec,  55,  citing  4  Comp.  Dec,  146,  and  Dig. 
Sec.  Comp.,  vol.  2,  sec.  1211.) 

This  section  is  found  under  the  title  of  "The 
Judiciary"  in  the  Revised  Statutes,  and  un- 
doubtedly applies  to  clerks  and  officers  of  the 
United  States  who  are  witnesses  before  the 
Federal  civil  courts.  (Comp.  Dec.  Apr.  14, 
1914,  file  26254-1476:1.) 

"The  word  'officer'  in  this  section  is  to  re- 
ceive a  liberal  construction.  It  does  not  im- 
port an  officer  as  distinguished  from  a  soldier, 
but  any  person  who  is  an  employee  or  is  in  the 
service  of  the  United  States,  in  however  humble 
a  capacity."  (16  Op.  Atty.  Gen.,  113,  holding 
that  Army  officers  and  enlisted  men  who  appear 
as  witnesses  for  the  Government  before  any 
court  of  the  United  States  are  entitled  to 
receive  their  necessary  expenses  in  going, 
returning,  and  attendance  on  the  court,  and 
are  not  entitled  to  any  mileage  or  witness  fees; 
see  also  15  Op.  Atty.  Gen.,  486;  16  Op.  Atty. 
Gen.,  147;  17  Comp.  Dec,  584.) 

Retired  oflB.cers. — A  retired  Army  officer 
who  is  called  to  testify  before  a  civil  court  as  a 
witness  for  the  United  States  is  entitled  to 
lawful  fees  as  a  witness  and  not  to  actual  ex- 
penses as  provided  by  section  850  of  the  Re- 
vised Statutes.  (19  Comp.  Dec,  966,  following 
10  Comp.  Dec,  51,  holding  that  retired  officers 
are  not  within  the  purview  of  section  850  be- 
cause not  subject  to  orders  to  testify  as  wit- 
nesses. In  this  connection,  see  act  of  August  22, 
1912,  37  Stat.,  329,  providing  that  retired  offi- 
cers of  the  Navy  and  Marine  Corps  may,  with 
their  consent,  be  ordered  to  any  active  duty  at 
sea  or  on  shore.  And  see  below,  "Courts- 
martial,"  under  "  III.  Natureof  Proceedings.") 

A  Naval  Militia  member  subpoenaed  as  a 
witness  before  a  naval  court-martial  when  his 
organization  is  not  in  the  service  of  the  United 
States  is  in  the  status  of  a  civilian  witness,  not 
in  Government  employ,  and  he  is  entitled  to  fees 
and  mileage  accordingly.  (File  26251-10968: 9, 
Dec  1,  1915;  26276-119,  Dec.  22,  1915.  See 
below,  "Courts- martial,"  under  "III.  Nature 
of  Proceedings.") 


United  States  Senators. — The  provision 
in  section  850,  Revised  Statutes,  does  not 
apply  to  Senators  of  the  United  States.  To  fall 
within  its  terrns  the  clerk  or  officer  must  have 
a  place  of  business  and  be  sent  away  therefrom, 
indicating  very  clearly  that  class  of  officials 
who  occupy  subordinate  positions  and  are  sub- 
ject to  the  control  and  direction  of  their  supe- 
rior officers.  It  is  hardly  necessary  to  add  that 
United  States  Senators  are  not  of  this  class. 
Such  witnesses  are  accordingly  entitled  to  the 
compensation  fixed  by  section  848,  Revised 
Statutes.  (7  Comp.  Dec,  764.  As  to  compul- 
sory attendance  of  Senators  and  Representa- 
tives as  witnesses  in  judicial  proceedings,  see 
note  to  Constitution,  Art.  I,  sec.  6,  clause  1.) 

Federal  prisoners. — A  person  in  custody 
awaiting  trial  for  an  alleged  offense  who  at- 
tended before  a  United  States  commissioner  as 
a  witness  is  entitled  to  the  fee  provided  by  law 
for  such  attendance.  He  is  not,  however, 
entitled  to  mileage  for  at  least  two  reasons: 
First,  the  Government  necessarily  bears  the 
expenses  of  his  transportation,  if  there  are 
such,  from  the  jail  to  the  place  where  he  testi- 
fies; second,  the  jail  can  not  be  said  to  be  his 
place  of  residence.     (6  Comp.  Dec,  588.) 

However,  where  a  person  in  custody  has  been 
convicted  of  crime,  has  forfeited  his  residence, 
and  his  time  and  services  belong  to  the  Gov- 
ernment, which  is  charged  with  his  care  and 
support  while  imprisoned  in  a  penitentiary  or 
jail,  per  diem  for  attendance  and  mileage  are 
not  allowable.     (6  Comp.  Dec,  588.) 

If  a  convicted  person  were  called  upon  to 
testify  in  a  civil  suit,  the  Government  would 
be  entitled  to  charge  for  and  collect,  as  against 
the  person  subpoenaing  him  as  a  witness,  a  per 
diem  on  account  thereof,  as  his  services  laelong 
to  the  Government.     (6  Comp.  Dec,  588.) 

Temporary  employee. — A  temporary  mail 
weigher  is  an  employee  of  the  United  States, 
and  if  said  mail  weigher  is  subpoenaed  to  tes- 
tify in  a  United  States  district  court  on  behalf 
of  the  Government,  he  is  entitled  to  be  paid 
his  actual  and  necessary  expenses  in  addition 
to  his  regular  compensation  as  mail  weigher, 
while  going  to,  returning  from,  and  attendance 
on  the  court.     (18  Comp.  Dec,  896.) 

A  person  who  has  been  paid  $3  for  a  day's 
service  as  bailiff  under  a  United  States  mar- 
shal, is  not  entitled  to  the  statutory  fee  of  $1.50 
for  his  attendance  as  a  witness  for  the  Govern- 
ment before  a  United  States  commissioner  on 
the  same  day.  After  adjournment  of  the  court, 
he  was  summoned  and  attended  as  a  witness 
before  the  commissioner.  However,  the  per 
diem  allowed  him  as  bailiff  covered  his  time 
and  services  as  baiUff  for  an  entire  day,  and  the 
adjournment  of  the  court  did  not  release  him 
from  liability  to  serve  for  the  remainder  of  the 
day  for  which  he  was  paid.  (22  Comp.  Dec, 
126.) 

Private  clerk  of  Government  ofllcial. — 
"The  theory  of  the  statute  manifestly  is  that 
where  the  Government  is  entitled  to  an  officer's 
time,  the  diversion  of  it  from  his  official  routine 
to  attend  in  court  as  a  witness  in  its  behalf  shall 
not  entitle  him  to  dual  compensation.  The 
court  does  not  overlook  the  fact  that  a  marshal's 
clerk  is  appointed  by  him  and  that  his  com- 
pensation is  conditional  and  dependent  upon 


414 


The  Judiciary. 


Pt.2.  REVISED  STATUTES. 


Sec.  850. 


the  fees  and  emoluments  of  the  marshal's 
office  *  *  * ;  but  nevertheless  the  service  is 
rendered  for  the  government,  the  expense  is 
additional  to  the  marshal's  compensation,  and 
the  money  with  which  the  clerk  is  paid  is  the 
money  of  the  Government  and  would  other- 
wise go  into  the  Treasmy.  The  marshal, 
therefore,  is  not  the  employer  but  the  appoixit- 
ing  power,  and  his  chief  clerk  is  as  much  an 
employee  of  the  Government  as  is  the  private 
secretary  of  the  President."  (Duval  v.  U.  S., 
23  Ct.  CIs.,  102;  17  Comp.  Dec,  584.) 

A  person  emploA'ed  by  a  postmaster,  who  re- 
ceives a  fixed  salary  without  any  allowance  for 
clerk  hire,  and  who  himself  pays  such  person 
as  his  deputy,  is  not  a  "clerk  or  ofHcer  of  the 
United  States"  within  the  meaning  of  this  sec- 
tion,    (In  re  Waller,  49  Fed.  Rep.,  271.) 

District  of  Columbia  employee. — Officers 
and  employees  of  the  District  of  Columbia  are 
not  officers  or  employees  of  the  United  States 
within  the  meaning  of  this  section;  they  are 
accordingly  entitled  to  the  fees  allowed  by  law 
to  other  witnesses,  unless  it  is  a  part  of  their 
official  duty  under  their  appointments  to  at- 
tend and  testify  in  proceedings  of  the  character 
involved.  (18'  Comp.  Dec,  382,  citing  17 
Comp.  Dec,  153.) 

II.    WnXESS    FOR   THE    GoVERXMEXT. 

No  testimony  given. — An  officer  of  the 
Na\y  was  ordered  to  "proceed  to  Norfolk,  Va., 
and  on  December  27,  1912,  confer  with  the 
district  attorney.  Upon  the  completion  of  this 
conference  report  to  the  commandant  of  the 
navy  yard  for  temporary  duty  as  witness  before 
a  court  of  inquiry  at  the  station  under  his  com- 
mand." The  Auditor  for  the  Navy  Depart- 
ment held  that  the  travel  involved  was  pri- 
marily performed  in  order  that  claimant  might 
testifj'  on  behalf  of  the  Government  in  the 
United  States  Court  for  the  Eastern  District  of 
Virginia.  This  ruling  was  reversed  by  the 
Comptroller  of  the  Treasury,  who  decided  that 
there  was  nothing  in  the  orders  in  ciuestion  to 
direct  the  officer  to  appear  as  a  witness  in  the 
United  States  District  Court  for  the  Eastern 
District  of  Virginia,  and  the  officer  stated  that 
he  did  not  so  appear.  Accordingly,  held  that 
the  officer  was  entitled  to  mileage  for  the  travel 
in  ciuestion,  and  that  section  850,  Ile\-ised  Stat- 
utes, was  not  applicable  thereto.  (Comp.  Dec. 
Apr.  14,  1914,  file  26254-1476:1;  see  below, 
"Courts-martial,"  under  "III.  Nature  of  Pro- 
ceedings.") 

An  officer  of  the  Navy  ordered  to  perform 
travel  in  order  that  he  might  be  present  to 
testify,  if  needed,  in  a  suit  to  which  the  Gov- 
ernment was  not  a  party,  but  in  which  it  had 
sufficient  interest  to  make  it  nece.^sary,  or  at 
least  advisable,  in  the  opinion  of  the  Secretary 
of  the  Na^y ,  for  the  officer  to  be  present,  could 
not  be  considered  as  a  witness  for  the  Govern- 
nient  within  the  meaning  of  section  850,  Re- 
vised Statutes.  In  performing  the  travel  in 
question  appellant  should  be  regarded  as  travel- 
ing on  public  business  under  orders  of  the  Sec- 
retary of  the  Na-vy,  and  entitled  to  mileage 
accordinglv.  (Comp.  Dec,  July  28,  1915,  173 
S.  and  A.  Memo.,  3729.) 

Identifying  party  under  charges. — A 
clerk  in  the  Na\-y  Department  who  performed 


travel  to  New  York  City,  at  the  request  of  the 
police  department  of  the  District  of  Columbia, 
for  the  purpose  of  identif^-ing  and  securing  the 
arrest  of  a  party  wanted  for  trial  in  the  District 
of  Columbia  upon  charges  of  larceny  and  big- 
amy, was  not  in  the  status  of  a  witness  for  the 
Government  during  her  absence  from  duty  for 
the  purpose  stated.  (File  4488-61,  June  24, 
1911.) 

Witness  for  private  party. — \\'hen  sub- 
poenaed by  a  private  party  a  department  clerk 
may  demand  and  accept  witness  fees.  (21  Op. 
Atty.  Gen.,  263.) 

A  naval  officer  giving  expert  testimony  in  a 
suit  between  private  parties  may  receive  com- 
pensation therefor  at  the  usual  rates,  in  accoid- 
ance  with  his  agreement  with  the  party  for 
whom  he  appeared.  (File  1981-1900;  see"  also 
file  6053,  Oct.  30, 1906;  and  file  26276-125,  Nov. 
22,  1915.) 

An  employee  of  the  Navy  Department  v>-ho 
attends  com-t  as  a  witness  otherwise  than  as  a 
witness  for  the  Government  is  not  entitled  to 
draw  salary  during  the  period  absent  from  work, 
unless  such  absence  is  charged  to  his  annual 
leave.     (File  6036-2.  Apr.  5, 1907.) 

Witness  against  the  Government. — 
Wliere  a  naval  constructor  appeared  as  a  wit- 
ness in  behalf  of  the  defendant,  the  complain- 
ant being  the  United  States,  he  was  informed 
that  there  appeared  from  the  facts  stated  to  be 
no  reason  why  he  should  not  accept  "ordinary 
mileage  and  attendance  fees."  (File  4565-4, 
Oct.  23,  1906.) 

Courts-martial. — This  section  clearly  recog- 
nizes the  fact  that  persoios  in  the  employ  of  the 
Government  may  be  called  upon  to  testify 
before  the  courts  in  matters  not  necessarily 
connected  with  the  service  for  which  they  are 
paid,  and  that  their  salaries  shall  continue 
while  so  absent  from  their  regular  duties.  Since 
no  distinction  is  made  in  miLitar\'  courts  be- 
tween payment  of  witnesses,  whether  for  or 
against  the  Government,  it  must  be  held  that 
they  are  equally  entitled  to  their  salaries  while 
in  attendance  before  a  military'  court,  if  they 
were  acting  under  proper  orders,  although  they 
appeared  as  witnesses  for  the  accused.  Their 
attendance  was  reciuired  at  this  court-martial 
by  proper  subpoena  issued  by  the  judge  advo- 
cate of  the  court.  It  was  requested  by  the 
Secretary  of  War  in  a  letter  addressed  to  the 
Secretary-  of  State.  The  Secretary  of  State 
ordered  them,  through  the  proper  channels,  to 
attend  the  trial  and  at  the  same  time  directed 
that  they  be  retained  in  the  employ  of  the 
Government  and  receive  their  compensation 
during  their  attendance.  Accordingly,  held 
that  they  were  entitled  to  their  salaries  until 
the  time  they  were  discharged  from  attendance 
upon  the  court-martial,  and  that  the  same 
should  be  paid  from  the  appropriations  for  their 
regular  duties  with  the  Nicaragua  Canal  Com- 
mission.    (5  Comp.  Dec,  797.) 

III.  Nature  of  Proceedixgs. 

Coxirts-martial. — Civilian  employees  of  the 
United  States  subpoenaed  on  behalf  of  the  Gov- 
ernment as  witnesses  before  naval  courts  are  not 
entitled  to  mileage  or  per  diem  as  witnesses, 
but  to  their  regular  salaries  and  actual  and 
necessary  expenses  only,  their  rights  being  con- 


415 


Sec.  860. 


Pt.2.  REVISED  STATUTES. 


The  Judiciary. 


trolled  by  section  850  of  the  Revised  Statutes. 
(14  Comp.  Dec,  143;  see  also,  1  Comp.  Dec, 
79.  noted  under  sec  848,  R.  S.) 

A  per  diem  employee  of  a  navy  yard  is  en- 
titled to  his  actual  and  necessary  expenses 
while  attending  under  orders  as  a  v-itness  before 
a  court  of  inquiry  and  while  going  to  and  re- 
turning from  the  court.     (8  Comp.  Dec,  211.) 

This  section  does  not  apply  to  military  olli- 
cers  when  witnes.ses  before  military  courts;  it 
appears  under  the  title  of  vThe  .Judiciary," 
in  the  Re\dsed  Statutes,  and  undoubtedly  ap- 
plies to  clerks  and  ofliccrs  of  the  I'nited  States 
when  witne&''es  before  the  Federal  civil  courts; 
accordingly,  held  that  an  officer  of  the  Na^'y  is 
entitled  to  mileage  for  travel  ]ierfornied  under 
orders  for  the  purpose  of  appearing  as  a  witness 
before  a  naval  court  of  inquiry.  (Comp.  Dec. 
Apr.  14,  1914,  file  20254-1470:1;  see  above,  "No 
testimony  given,"  under  "II.  Witness  for  the 
Government.") 

A  contract  surgeon  in  the  Army  who  is  di- 
rected by  special  orders  to  attend  as  a  witness 
before  a  general  court-martial  by  which  he  had 
been  duly  summoned  is  not  entitled  to  reim- 
bursement of  expenses  as  a  civilian  employee 
of  the  Government,  but  is  limited  to  the  mile- 
age allowance  payable  to  commi.s.sioned  officers 
traveling  under  orders.     (9  Comp.  Dec,  461.) 

Section  850,  Re^'ised  Statutes,  has  never,  so 
far  as  I  am  aware,  been  applied  in  fixing  the  com- 
pensation of  officers  of  the  Army  and  Navy  on 
the  active  List  for  attendance  as  witnesses  be- 
fore general  courts-martial,  when  in  attendance 
in  obedience  to  orders:  and  I  know  of  no  reason 
why  it  should  apply  in  the  case  of  a  retired  offi- 
cer if  it  does  not  apply  to  an  officer  on  the  active 
list.  The  retired  officer  has  no  place  of  business 
to  be  sent  away  from,  within  the  meaning  of 
that  section,  and  he  is  not  an  officer  subject  to 
be  ordered  to  such  duty,  and  is  not,  therefore, 
within  the  purview  of  the  said  section.  (10 
Comp.  Dec,  55,  citing  7  Comp.  Dec,  764.) 

A  retired  officer  of  the  Army  is  not  entitled 
to  commutation  of  quarters  while  in  attendance 
as  a  witness  before  a  general  court-martial,  but 
he  is  entitled  to  the  per  diem  compensation  and 
mileage  provided  for  civilian  witnesses  not  in 
the  employ  of  the  Government.  (10  Comp. 
Dec,  51.) 

A  summons  to  a  retired  officer  of  the  Navy  to 
attend  as  a  witness  before  a  general  court-mar- 
tial does  not  place  him  on  active  duty,  and  he  is 
not,  therefore,  entitled  to  the  difference  be- 
tween active  duty  and  retired  pay  in  conse- 
quence thereof.  (5  Comp.  Dec,  244.  At  the 
time  this  decision  was  rendered  retired  officers 
of  the  Naw  could  not  be  ordered  to  active  duty 
except  in  time  of  war;  accordingly,  it  had  been 
held  by  the  accounting  officers  (Dig.  Sec 
Comp.  Dec,  vol.  2,  sec.  1211)  that  in  time  of 
peace  officers  on  the  retired  list  of  the  Navj'- 
while  attending  upon  courts-martial  as  wit- 
nesses were  not  entitled  to  active-duty  pay. 
This  case  arose  in  time  of  war,  but  it  was  held 
that  the  effect  of  an  ordinary  summons  to  at- 
tend as  a  witness  before  a  court-martial  in  time 
of  war,  even  though  approved  by  the  Secretary 
of  the  Navy,  did  not  place  the  officer  in  any 
different  position  than  he  would  have  occupied 
had  the  summons  been  Lssued  and  the  travel 
performed  in  time  of  peace.     An  order  which 


places  a  retired  naval  officer  upon  duty  in  time 
of  war  should  clearly  express  such  intention, 
and  no  such  intention  can  properly  be  imputed 
in  the  case  of  an  ordinary  summons  to  attend 
as  a  witneas,  approved  by  the  Secretary  of  the 
Navy  after  it  is  issued.  The  existing  law, 
act  of  Aug.  22,  1912,  37  Stat.,  329,  provides  that 
retired  oflicers  of  the  Na\'y  and  Marine  Cori)8 
mav,  with  their  consent,  be  ordered  to  any 
active  duty  at  sea  or  on  shore.) 

A  member  of  the  Naval  Militia  subpoenaed 
as  a  witness  before  a  naval  court-martial  is  not 
thereby  called  into  the  service  of  the  United 
States  under  the  provisions  of  the  Constitution 
(Art.  I,  sec  8,  clause  15)  and  the  Naval  ]\Iilitia 
Act  of  Feb.  10,  1914,  sec.  3  (38  Stat.,  284).  He 
is  not,  therefore,  by  virtue  of  such  subpoena 
entitled  to  the  pay  and  allowances  provided 
for  the  Naval  Militia  when  called  into  the  serv- 
ice of  the  United  States.  (File  26270-119:3, 
Jan.  20,  1910.) 

See  cases  noted  above,  under  "I.  "WTiat  Per- 
sons Included." 

In  courts-martial  the  United  States  pays  not 
only  its  own  witnesses  but  the  witnesses  of  the 
accused;  accordingly,  while  section  850  refers 
directly  to  witnesses  for  the  Government,  the 
fact  that  all  witnesses  before  military  courts 
are  paid  by  the  Government  bring  the  latter 
within  the  spirit  of  this  section.  (5  Comp. 
Dec,  802.  See  note  to  Constitution,  sixth 
amendment,  as  to  compulsory  process  for  ob- 
taining -witnesses  in  behalf  of  the  accused  before 
naval  courts-martial.) 

District  of  Columbia  coiu'ts. — Salaried 
employees  of  the  Government  are  not  entitled, 
under  the  provisions  of  section  850  of  the 
Revised  Statutes,  to  witness  fees  for  attendance 
as  witnesses  on  behalf  of  the  United  States  before 
a  United  States  grand  jury  in  the  District  of 
Columbia.  Accordingly,  held  that  a  clerk  in 
the  Treasury  Department  at  Washington,  D.  C, 
is  not  legally  entitled  to  witness  fees,  either  per 
diem  or  mileage,  for  her  attendance  before  the 
United  States  grand  jury,  Supreme  Court  of  the 
District  of  Columbia,  as  a  witness  on  behalf  of 
the  United  States.     (17  Comp.  Dec,  282.) 

Salaried  officers  or  employees  of  the  United 
States  who  attend  before  the  Supreme  Court 
of  the  District  of  Columbia  as  witnesses  for  tlie 
Government  are  not  entitled  to  the  compensa- 
tion proAdded  by  law  for  witnesses  who  are  not 
such  officers  or  employees.  (18  Comp.  Dec, 
382,  citing  17  Comp.  Dec,  282;  see  above, 
"Identifying  party  under  charges,"  under 
"II.  Witness  for  the  Government.") 

State  courts. — The  actual  expenses  of 
officers  of  the  Army  in  attending,  by  authority 
of  the  Secretary  of  War,  upon  a  State  court  as 
witnesses  for  the  United  States  in  a  case  in 
which  the  United  States  is  a  party,  may  be  paid 
from  the  approj)riation  for  contingent  expenses 
of  the  War  Department.  (12  Comp.  Dec,  649; 
see  above,  "No  testimony  given,"  under 
"II.  Witness  for  the  Government.") 

Extradition  proceedings  before  commis- 
sioner. — An  employee  of  the  Government  is 
not  entitled  to  mileage  and  fees,  but  only  to 
actual  and  necessary  expenses,  for  attendance  as 
a  witness  before  a  United  States  commissioner 
in  extradition  proceedings  instituted  in  the 
name  of  the  United  States.  (llComp.  Dec,  605.) 


416 


The  Judiciary. 


Pt.2.  RE  VISED  STAT  UTES . 


Sec.  850. 


Justice  of  the  peace.— This  section  applies 
to  payment  of  -witnesses  in  attendance  upon  a 
preliminary  hearing  before  a  justice  of  the 
peace.     (16  Comp.  Dec,  92.) 

Civil  Service  Commission. — A  civil-service 
employee  of  the  War  Department  on  duty  in  the 
ordnance  office  at  Frankford  Arsenal,  Philadel- 
phia, Pa.,  who  appears  as  a  witness  before  the 
Civil  Service  Commission  in  obedience  to  a 
duly  authorized  summons  of  the  commission 
under  Civil  Service  Rule  XIV  approved  by  the 
President,  should,  while  going  to,  attending  on, 
and  returning  from  the  commission  be  treated 
as  in  a  duty  status,  and  as  in  the  performance 
of  duty  under  his  employment,  and  should  be 
paid  accordingly  from  the  appropriation  for  the 
ordnance  service.     (18  Comp.  Dec,  135.) 

IV.  Character  of  Expenses  Allowed. 

Employment  of  a  substitute. — The  neces- 
sary expenses  of  travel,  board,  and  lodging  of 
salaried  employees  of  the  Government  attend- 
ing a  United  States  court  or  before  a  United 
States  commissioner  as  witnesses  on  behalf  of 
the  Government,  are  usually  payable,  under 
section  850  of  the  Revised  Statutes,  from  the 
appropriation  for  "Fees  of  witnesses.  United 
States  courts";  but  there  is  no  provision  for 
the  payment  of  the  hire  of  a  substitute  whom  it 
may  be  necessary  to  engage  by  reason  of  the 
salaried  employee's  absence.  (16  Comp.  Dec, 
630.) 

Section  850,  Revised  Statutes,  does  not 
authorize  the  payment  to  a  consul  of  an  amount 
paid  by  him  as  compensation  to  his  vice  consul 
while  in  charge  of  the  consulate  during  the 
absence  of  the  consul  as  such  witness.  (9  Comp 
Dec,  521.) 

This  section  provides  for  the  ordinary  and 
usual  expenses  of'  the  witness,  and  does  not 
include  the  loss  of  salary  because  of  such 
absence.  The  items  of  expense  of  such  a  wit- 
ness are  his  necessary  traveling  expenses  in 
going  and  retiuning,  and  his  necessary  expenses 
while  in  attendance  upon  the  court.  (9  Comp. 
Dec,  521.) 

Leave  of  absence. — A  per  diem  employee 
of  a  navy  yard  is  entitled  to  his  compensation 
as  such  per  diem  employee,  and  actual  expenses 
while  attending  imder  orders  a  court  of  inc^uiry 
as  a  witness,  and  while  going  to  and  returning 
from  the  court;  and  the  time  he  is  so  absent 
from  his  emploATuent  is  not  to  be  deducted  from 
the  time  for  which  he  may  be  granted  leave  of 
absence.     (8  Comp.  Dec,  211.) 

Employees  of  the  Navy  Department  attend- 
ing as  witnesses  for  the  Government,  as  to  leave 
to  which  they  may  be  entitled  by  law,  are  in 
the  same  status  as  if  they  had  been  actually  at 
work  at  their  regular  place  of  work  and  had  not 
been  absent  as  such  witnesses.  (17  Comp. 
Dec,  584.) 

Employees  of  the  Navy  Department  who  at- 
tend court  as  mtnesses  otherwise  than  as  wit- 
nesses for  the  Government  are  not  entitled  to 
draw  salary  during  the  period  absent  from  work 
unless  charged  to  annual  leave.  (File  6036-2, 
Apr.  5,  1907.  But  see  5  Comp.  Dec,  797,  noted 
below,  as  to  witnesses  for  accused  in  court- 
martial  cases.) 

An  employee  of  the  Na\-y  Department  ab- 
sent from  duty  at  the  request  of  the  police 


department  of  the  District  of  Columbia,  for  the 
purpose  of  identifying  and  securing  the  arrest 
of  a  person  in  New  York  wanted  for  trial  in  the 
District  for  larceny  and  bigamy,  is  not  within 
the  pur\dew  of  the  decision  of  the  Comptroller 
which  treats  employees  of  the  Governrnent  as 
in  a  duty  status  when  in  attendance  as  witnesses 
for  the  Government  in  Federal  courts.  The 
absence  from  duty  in  such  case  should,  there- 
fore, be  charged  to  the  employee's  leave. 
(File  4488-61,  June  23,  1911.) 

An  employee  of  the  War  Department  should 
be  treated  as  in  a  duty  status  while  going  to, 
attending  on,  and  retmrning  from  an  inquiry 
by  the  Civil  Service  Commission  in  obedience 
to  a  subpoena  issued  by  the  commission.  (18 
Comp.  Dec,  135.) 

CiA-ilian  employees  of  the  State  Department 
appearing  before  an  Army  court-martial,  in 
obedience  to  a  subpoena  issued  by  the  judge 
advocate  of  the  court  and  proper  orders  issued 
by  the  Secretary  of  State  upon  request  of  the 
Secretary  of  War,  should  be  treated  as  in  a 
duty  status,  notwithstanding  that  they  were 
subpoenaed  as  witnesses  against  the  Govern- 
ment and  for  the  accused.  (5  Comp.  Dec, 
797.) 

While  attending  as  a  witness  for  the  Govern- 
ment in  a  United  States  district  court,  an  em- 
ployee was  performing  a  service  for  and  on  be- 
half of  the  Government  other  than  the  service 
required  under  his  appointment,  and  such 
compulsory  absence  would  not  have  the  effect 
of  relieving  him  of  his  pay  status  for  the  reason 
that  during  that  time  he  is  to  be  regarded  as  in 
the  performance  of  duty  under  his  employ- 
ment and  therefore  should  be  paid  his  regular 
compensation  in  addition  to  liis  actual  and 
necessary  expenses.     (18  Comp.  Dec,  896.) 

Witness  outside  jurisdiction. — ^Where  an 
office  deputy  marshal  attends  as  a  witness  before 
a  United  States  commissioner  in  a  district  other 
than  his  own,  the  allowance  of  his  expenses  of 
subsistence  is  a  matter  within  the  discretion  of 
the  commissioner,  unlimited  by  the  statutory 
maximum  fixed  for  deputy  marshals.  (19 
Comp.  Dec.  91.) 

A  deputy  collector  of  internal  revenue  is  enti- 
tled to  all  necessary  and  lawful  expenses  in- 
ciu-red  in  attending  a  hearing  before  a  United 
States  commissioner  pursuant  to  the  subpoena 
of  said  commissioner,  although  the  hearing  is 
held  in  a  district  other  than  that  of  the  deputy 
collector's  residence.     (20  Comp.  Dec,  195.) 

It  has  been  held  that  a  witness  from  another 
district  attending  before  a  commissioner  upon 
a  subpoena  issued  by  the  commissioner,  is  not 
entitled  to  the  mileage  provided  by  section  848, 
Revised  Statutes,  for  tra^'el  outside  of  the  com- 
missioner's district.  (9  Comp.  Dec,  121.) 
This  ruling  does  not  apply  to  ofiicers  or  em- 
ployees of  the  Government  whose  official  duty 
it  is  to  testify  in  behalf  of  the  Government  and 
who  are  bound  to  attend  for  that  purpose 
whether  in  the  district  in  which  they_  reside 
or  elsewhere.  Such  officer  or  employee  is  enti- 
tled to  his  necessary  expenses  in  going,  return- 
ing, and  attending,  when  sent  away  from  hia 
place  of  business  as  a  witness  for  the  Govern- 
ment.    (20  Comp.  Dec,  195.) 

See,  in  this  connection,  note  to  section  848, 
Revised  Statutes,  relative  to  expense  of  bring- 
ing witnesses  within  jurisdiction  of  the  court. 


41T 


Sec.  850. 


Pt.2.  REVISED  STATUTES. 


The  Judiciary. 


""■.  Appropriation  from  Which  Paid. 

Judiciary  appropriation. — The  necessary 
expenses  of  travel,  board,  and  lodging  of  sala- 
ried employees  of  the  Government  attending  a 
United  States  court  or  before  a  United  States 
commissioner  as  witnesses  on  behalf  of  the  Gov- 
ernment are  usually  payable,  under  section 
850,  Revised  Statutes,  from  the  appropriation 
for  "Fees  of  w-itnesses.  United  States  courts." 
(leComp.Dec,  630.) 

In  12  Comp.  Dec,  391,  it  was  held  that  the 
expenses  of  officers  of  the  United  States  in- 
curred in  going,  returning,  and  in  attendance 
on  courts  when  sent  away  from  the  usual  place 
of  the  performance  of  their  duties  as  witnesses 
for  the  Government  are  payable  from  the  ap- 
propriate fund  of  the  dejiartment  from  which 
they  are  sent,  and  not  from  the  judicial  appro- 
priation for  fees  of  witnesses.  However,  this 
decision  is  published  with  a  footnote,  stating 
that  since  it  was  rendered  it  had  been  discoA-- 
ered  that  the  decision  therein  relied  upon  had 
been  overruled  by  the  Supreme  Court  of  the 
United  States.  Hence,  the  necessary  expenses 
of  a  clerk  sent  away  as  a  witnees  for  the  Gov- 
ernment should  be  audited  by  the  court,  taxed 
as  witness  fees,  and  paid  in  full  from  the  proper 
judicial  appropriation. 

The  auditing  contemplated  by  section  850 
must  be  done,  primarily,  in  the  court  in  which 
the  case  is  pending  and  where  it  can  best  be 
determined  what  expenses  have  been  neces- 
sarily incurred  by  the  witness.  It  was  not 
intended  by  section  850  to  deny  to  the  Govern- 
ment the  right,  when  successful  in  a  suit,  to 
have  even  the  necessary  expenses  of  witnesses 
of  the  class  described  in  that  section  included 
in  the  judgment  for  costs,  nor  did  the  United 
States  intend  to  remit  to  its  defeated  adver- 
sary not  only  witness  fees  for  per  diem  and 
mileage,  but  the  necessarj'  expenses  of  wit- 
nesses who  happened  to  be  in  its  employment 
and  whom  it  sent  away  from  their  place  of 
business  to  testify  in  its  behalf.  As  a  person 
of  that  class  receives  while  absent  his  stipu- 
lated salary  and  is  paid  in  that  way  for  his 
time,  it  is  not  deemed  just  that  he  should  also 
receive  mileage  and  per  diem;  but,  instead 
thereof,  he  is  allowed  his  necessary'  expenses, 
which,  being  audited  by  or  under  the  direc- 
tion of  the  court  upon  which  he  attends  as  a 
witness,  he  is  entitled  to  have  paid  to  him, 
and  the  Government,  being  under  an  obliga- 
tion to  pay  them,  is  entitled  to  have  the  amount 
so  audited  included  in  its  bill  of  costs  and  in 
any  judgments  rendered  in  its  favor.  In  other 
words,  when  the  Government  is  successful  in 
a  suit,  the  "necessary  expenses"  of  its  wit- 
nesses of  the  class  described  in  section  850 
take  the  place  in  its  bill  of  costs  of  the  per 
diem  and  mileage  which,  but  for  that  section, 
would  have  been  taxed  and  allowed  in  its 
favor.     (U.  S.  v.  Sanborn,  135  U.  S.,  271.) 

Necessary  expenses  of  soldiers  as  witnesses 
for  the  Government  allowed  under  this  section 
may  be  paid  by  marshals  upon  proper  proof 
thereof.  (16  Op.  Atty.  Gen.,  147.)  [Enlisted 
men  detained  by  a  United  States  marshal  as 
witnesses,  and  by  him  paid  $1.70  per  day,  are 
not  entitled  to  rations  during  the  period  they 
were  absent  from  their  ship.    (File  1098-94.)] 


Where  a  tiustee  in  bankruptcy  is  called  to 
testif)'  as  an  expert  witness  in  a  criminal  prose- 
cution, growing  out  of  transactions  in  connec- 
tion with  the  bankrupt  estate,  the  act  of  August 
24,  1912  (37  Stat.,  402),  prohibits  the  payment 
to  him  of  any  compensation  whatever  for  serv- 
ices as  such  expert  from  the  appropriation 
"Miscellaneous  expenses,  United  States  courts, 
1913."     (10  Comp.  Dec,  395.) 

Other  appropriations  available. — "At- 
tention is  invited  to  the  fact  that  while  section 
850,  Revised  Statutes,  allows  a  clerk  or  ofDcerhia 
actual  expenses  when  sent  away  from  his  place 
of  business,  it  does  not  provide  that  such  ex- 
penses shall  be  paid  from  the  judiciary  appro- 
priations. On  the  contrary,  the  inference  is 
that  such  expenses  will  be  paid  from  whatever 
appropriation  is  applicable."  (5  Comp.  Dec,  2.) 

Naval  appropriation. — The  claim  of  an 
enlisted  man  of  the  Army  for  reimbursement  of 
expenses  incurred  in  complying  with  a  sub- 
poena issued  by  a  naval  court-martial  is  a 
proper  charge  against  the  naval  appropriation, 
"Pay,  miscellaneous."     (File  26276-14.) 

"Expenses  of  courts-martial,  prisoners  and 
prisons,  and  courts  of  inquiry,  boards  of  inspec- 
tion, examining  boaids,  with  clerks'  and  wit- 
nesses' fees,  and  traveling  expenses  and  costs," 
are  appropriated  for  each  year  in  the  naval 
appropriation  act  under  the  heading,  "Pay, 
miscellaneous."  (See,  for  example,  naval 
appropriation  act  ^Mar.  3,  1915,  38  Stat.,  929.) 

Appropriation  for  department  where 
witness  is  employed. — If  an  officer  of  the 
Government  attends  upon  the  United  States 
courts,  or  before  United  States  commissioners, 
in  his  official  capacity,  in  connection  with  the 
examination  or  trial  of  persons  charged  with 
violations  of  certain  laws  relating  to  the  work 
of  his  department,  and  it  is  his  duty  under  the 
laws  or  regulations  governing  his  appointment, 
to  aid  in  the  prevention,  detection,  suppres- 
sion, punishment,  or  prosecution  of  such  vio- 
lators or  offenses,  then  his  proper  actual  travel- 
ing expenses,  incun'ed  by  reason  of  his  attend- 
ance upon  euch  examination  or  trial ,  are  prop- 
erly chargeable  to  the  appropriation  out  of 
which  his  ordinary  traveling  expenses  are  usu- 
ally paid,  notwithstanding  the  fact  that  he  may 
be  called  and  testify  in  the  case  as  a  witness;  but 
when  a  salaried  government  employee  is  sub- 
poenaed as  a  witness  and  he  so  attends  other- 
wise than  as  above  stated,  he  is  entitled  to  re- 
imbursement of  his  actual  expenses  by  the 
marshal  from  the  appropriation  "Fees  of  wit- 
nesses. United  States  courts."  (15  Comp.  Dec, 
298.) 

As  early  as  January  4,  1879,  the  Attorney 
General  issued  a  circular,  section  2  of  which  is 
as  follows;  "2.  That  section  850  is  regarded  by 
this  department  as  not  extending  to  officers  or 
employees  of  the  government  for  whose  neces- 
sary expenses  while  traveling  to  and  from 
court,  and  also  during  their  attendance  thereon, 
provision  is  otherwise  made  by  Congress. 
Within  this  category',  it  is  believed,  come  the 
special  agents  of  the  Post-Office  Department, 
the  special  agents  of  the  Pension  Office,  the 
special  agents  of  the  Treasury  Department,  In- 
ternal Revenue  agents,  and  Secret  Ser\-ice 
operatives  under  the  control  of  the  Treasury 
Department,  [see  below,  "Special  lawsgovem- 


418 


The  Judiciary. 


Pt.  2.  REVISED  STATUTES. 


Sec.  850. 


ins:  use  of  appropriations"]  especially  when 
called  as  'sv'itness  for  the  Government  in  those 
cases  wherein  they  are  employed  by  direction  of 
their  respective  bureaus  or  departments. 
These  agents  and  operatives  (in  addition  to 
certain  salaries  or  per  diem  paid  them  as  com- 
pensation for  their  servdces)  are  understood  to 
receive  allowances  for  traveling  and  other  inci- 
dental expenses,  incurred  while  in  the  dis- 
charge of  their  duties,  out  of  appropriations 
specially  providing  for  these  objects.  Sec- 
tion 850  does  not  comprehend  expenses  for 
which  Congress  has  thus  specially  provided. 
District  attorneys  and  marshals  are  instructed, 
in  dealing  with  the  claims  of  witnesses  under 
section  850,  to  act  in  conformity  hereto.  They 
are  directed,  before  allowing  or  paying  under 
that  section  any  officer  or  employee  of  the 
United  F  tatea  who  has  been  subpoenaed  as  a  wit- 
ness for  the  Government  his  necessary  expenses 
for  travel  and  attendance  on  court,  to  require 
from  the  claimant  a  declai'ation,  to  be  inserted 
in  and  made  a  part  of  the  affidavit  to  his  ac- 
count, that  he  has  not  received,  and  is  not  enti- 
tled by  the  regulations  of  the  bureau  or  depart- 
ment in  whose  service  he  is  or  was  employed, 
to  claim  or  receive,  and  will  not  claim,  from  such 
bureau  or  department,  any  allowance  what- 
ever for  those  expenses."     (5  Comp.  Dec,  2.) 

The  Comptroller  of  the  Treasury  concurs  in 
the  opinion  of  the  Attorney  General  that  sec- 
tion 850,  Revised  Statutes,  "does  not  compre- 
hend expenses  for  which  Congress  has  thus 
specially  provided."  (5  Comp.  Dec,  2,  affirm- 
ing 4  Comp.  Dec,  649.) 

The  actual  expenses  of  a  salaried  officer  of 
the  Government  who  testifies  as  a  witness  for  the 
Government  may  be  paid  in  either  of  two  ways, 
according  to  the  nature  of  his  emplojanent  and 
the  character  of  the  testimony  given.  (18 
Comp.  Dec,  992,  citing  16  Comp.  Dec,  411.) 

In  order  to  relieve  tiie  appropriation,  "Fees 
of  witnesses,  United  States  courts,"  from  the 
payment  of  the  expenses  of  officers,  employees 
or  agents  of  the  Government  while  in  attend- 
ance as  witnesses,  two  things  must  concur :  First, 
it  must  be  the  actual  duty  of  such  officers,  em- 
ployees or  agents  who  are  called  as  witnesses 
beforea  commissioner,  grand  jury  or  court,  to 
investigate  the  facts  upon  which  the  proceed- 
ings are  based,  and  to  appear  in  their  official 
capacity  to  testify  as  to  the  facts  so  acquired ; 
and,  second,  there  must  be  an  appropriation 
controlled  by  that  particular  department  of  the 
Government,  under  which  such  officers,  em- 
ployees or  agents  are  serving,  applicable  to  the 
payment  of  such  expenses.  (16  Comp.  Dec, 
411.) 

Where  Government  employees  are  required 
to  attend  the  sessions  of  a  court  in  the  discharge 
of  their  ofticial  duties,  testimony  given  by 
them  is  incidental  to  such  official  attendance, 
whether  subpoenaed  as  witnesses  or  not,  and 
their  expenses  incurred  thereby  are  not  payable 
from  the  appropriation  for  "Fees  of  witnesses," 
but  are  a  charge  against  the  proper  appropria- 
tion for  their  department.     (14 Comp.  Dec,  80.) 

Where  it  is  the  duty  of  an  officer,  either  under 
law  or  rule  or  regulation,  to  aid  in  the  detection, 
prosecution,  and  punishment  of  a  certain  class 
of  offenders,  he  is  not  entitled  to  his  expenses 
from  the  appropriation  for  witnesses,  his  attend- 


ance being  incidental  to  the  performance  of  his 
duties  and  the  expenses  thereof  being  charge- 
able to  the  appropriation  of  his  department. 
(14  Comp._  Dec,  113;  14  Comp.  Dec,  80.) 

Where  inspectors  who  are  employed  under 
appropriations  to  carry  into  effect  the  pure  food 
and  drugs  act  attend  as  witnesses  for  the  prose- 
cution of  offenses  under  said  act,  based  on  facta 
certified  to  the  district  attorney  by  the  Secre- 
tary of  Agriculture,  they  should  be  considered 
as  attending  in  their  official  capacity  unless 
they  are  called  to  give  evidence  of  facts  not 
found  by  them  in  the  discharge  of  their  duties 
as  inspectors,  and  while  in  attendance  in  their 
official  capacity  their  actual  and  necessary 
traveling  expenses  should  be  paid  from  appro- 
priations under  the  Department  of  Agriculture. 
(15  Comp.  Dec,  757.) 

The  actual,  necessary  expenses  of  customs 
officers,  while  attending  as  witnesses  before  a 
United  States  commissioner,  grand  jury,  or 
district  court,  to  testify  on  behalf  of  the  Govern- 
ment as  a  result  of  knowledge  gained  by  them 
in  the  discharge  of  their  official  duties,  are  pay- 
able from  the  appropriation  for  ' '  Collecting  the 
revenue  from  customs."  It  is  the  duty  of  the 
customs  officer  in  the  cases  now  under  con- 
sideration to  attend  before  the  commissioner 
or  upon  the  court,  and  when  so  attending  he  is 
not  present  as  an  ordinary  witness  (in  obedience 
to  a  subpoena  and  for  no  other  reason),  but  is 
present  in  his  capacity  as  a  customs  officer  to 
aid  in  the  detection,  prevention,  and  suppres- 
sion of  violations  of  the  customs  laws  and  in 
the  discharge  of  duties  for  which  he  is  ap- 
pointed. His  presence  in  the  character  of  a 
witness  in  a  case  wherein  he  made  the  seizure 
and  arrest  must  be  regarded  as  incidental  to 
the  real  j)urpose  for  which  he  is  present,  and 
expenses  incurred  in  attending  such  hearing  or 
trial  should  be  considered  as  incurred  in  his 
official  capacity  as  a  customs  officer  and  in  the 
interests  of  the  customs  service;  accordingly, 
such  expenses,  actually  and  necessarily  in- 
curred under  the  proper  departmental  regula- 
tions, are  payable  from  the  appropriation  out 
of  which  his  other  expenses  incurred  in  the 
line  of  his  duty  are  paid.  (15  Comp.  Dec, 
154.) 

The  attendance  of  a  naturalization  examiner 
before  a  United  States  commissioner  in  a  hear- 
ing of  a  case  upon  a  warrant  sworn  out  by  him 
for  a  violation  of  the  naturalization  laws,  and 
his  subsequent  attendance  before  a  grand  jury 
relative  to  the  same  case  for  the  purpose  of  hav- 
ing the  defendant  indicted  for  such  violation, 
are  a  part  of  his  official  duties  and  whether  he 
was  subpoenaed  or  not  testimony  given  by  him 
at  such  hearing  or  before  the  grand  jury,  as  a  re- 
sult of  knowledge  gained  by  him  in  the  dis- 
charge of  his  official  duties,  was  only  incidental 
thereto  and  his  expenses  incurred  thereby, 
witlun  the  limits  of  his  appointment,  are  pay- 
able from  the  a^jpropriation  for ' '  Pay  of  assistant 
attorneys  in  naturalization  cases,"  and  not 
from  the  judicial  appropriation  for  fees  of  wit- 
nesses.    (14  Comp.  Dec,  516.) 

The  law  makes  it  a  part  of  the  duty  of  a 
special  examiner  to  aid  in  the  prosecution  of 
persons  violating  the  pension  laws.  He  there- 
fore appears  as  a  witness  in  such  cases  as  an 
official  dutj'.     Accordingly,  held  that  the  ap- 


419 


Sec.  861. 


rt.2.  REVISED  STATUTES. 


The  Judiciary. 


propriation  for  cxamiiiors  in  the  Bureau  of 
rensions  is  excliisivoly  applicable  to  the  ex- 
penses of  such  exaniinors  for  attendance  upon 
court  as  witnesses,  there  bein^  no  provision  in 
that  ajiprojiriatiou  that  no  part  thereof  shall  be 
used  in  dcfrayino:  such  expenses,  such  as  ap- 
pears in  some  ajjprojtriations  for  other  depart- 
ments.    (5  C'onip.  Dec,  2.) 

In  the  matter  of  the  appropriations  chargeable 
with  the  traveling  expenses  incurred  by  salaried 
employees  of  the  (.iovernment  by  reason  of 
their  attendance  upon  a  trial  or  examination 
before  a  United  States  couit  or  a  United  States 
commissioner,  the  Comptroller  of  the  Treasury' 
can  not  undertake  to  determine  the  exact  status 
of  such  em]iloyees  and  the  nature  of  the  trial 
or  examination  in  each  and  every  one  of  the 
cases  which  arise.     (15  Comp.  Dec,  298.) 

The  payment  of  expenses  of  a  witness  in  the 
Government  service  should  be  governed  by  the 
rule  laid  down  in  15  Comp.  Dec,  298  (above 
noted).  WTiether  said  witness  attended  in  his 
official  capacity  as  an  officer,  or  as  an  ordinary 
witness,  is  unknown  to  the  comptroller,  and 
it  is  the  duty  of  the  marshal  to  develop  the 
facts  and  apply  the  rule  to  sucji  facts  when 
definitely  ascertained.     (16  Comp.  Dec,  92.) 

Expenditures  incurred  by  a  departmental 
clerk  in  obeying  a  subpoena  issued  by  a  district 
court  of  the  United  States  are  properly  charge- 
able to  the  appropriation  '"Fees  of  witnesses. 
United  States  courts,"  when  it  is  shown  that 
said  clerk  was  summoned  for  no  other  purpose 
than  that  of  an  ordinary  witness.  The  subpoena 
in  this  case  was  addressed  to  the  Chief  of  the 
Division  of  Naturalization,  Department  of 
Commerce  and  Labor,  Washington,  D.  C,  and 
was  issued  for  the  purpose  of  securing  the  pro- 
duction before  the  grand  jury  of  a  certain 
"duplicate  declaration  of  intention"  on  file  in 
the  department;  a  clerk  of  class  4  in  the  depart- 
ment at  ^\'ashington  was  directed  to  attend  in 
answer  to  this  subpoena,  which  he  did  and  in 
so  doing  incurred  the  expenses  in  question. 
It  does  not  appear  that  said   clerk  officially 


investigated  or  found  out  and  developed  the 
facts  upon  which  the  case  before  the  giand 
jury  was  ])redicated,  or  that  it  was  his  ollicial 
duty  untler  the  law  or  regulations  to  aid  in 
the  prosecution  of  the  case.  In  fact,  there  is 
nothing  to  show  that  this  departmental  clerk 
attended  otherwise  than  in  the  character  of 
an  ordinarv  witness  under  section  850  Revised 
Statutes.    "(16  Comp.  Dec,  672.) 

Special  laws  governing  use  of  appropria- 
tions.— The  principle  announced  in  previous 
decisions  (4  Comp.  Dec,  649;  5  Comp.  Dec,  2; 
14  Comp.  Dec,  80;  14  Comp.  Dec,  516;  15 
Comp.  Dec,  154;  15  Comp.  Dec,  298,  ail 
above  noted)  is  correct  and  should  be  adhered 
to  in  determining  the  particular  appropriation 
chargeable  with  the  expenses  of  employees 
in  attendance  upon  the  United  States  courts 
whose  duties  under  their  appointments  or 
under  the  law  involve  aiding  in  the  detection, 
prevention,  prosecution  or  suppression  of  viola- 
tions of  certain  laws,  except  in  cases  where 
Congress  has  seen  fit  to  exempt  any  class  of 
employees  from  the  operation  of  such  rule  by 
special  legislation.     (15  Comp.  Dec,  594.) 

By  act  of  May  22,  1908  (35  Stat.,  207)  an  ex- 
emption was  made  with  reference  to  officers  of 
the  Internal  Revenue  Service,  and  similar 
provisions  have  been  enacted  with  reterence  to 
Secret  Service  employees.  Accordingly,  held 
that,  "in  view  of  the  provisions  of  the  act  of 
May  22,  1908,  the  actual  and  necessary  expenses 
of  a  deputy  collector  of  internal  revenue,  under 
section  850  of  the  Revised  Statutes,  incurred 
by  reason  of  his  attendance  as  a  witness  on 
behalf  of  the  United  States  before  the  grand 
jury  in  obedience  to  a  subpoena  issued  by  the 
United  States  district  court  are  payable  from 
the  appropriation  "Fees  of  witnesses,  United 
States  courts."  (15  Comp.  Dec,  594;  followed, 
16  Comp.  Dec,  838,  and  20  Comp.  Dec,  195, 
with  reference  to  expenses  of  attendance  as 
witnesses  before  United  States  commissioners 
in  obedience  to  subpoenas.) 


Sec.  851.  [Witnesses  transported  on  Government  or  private  vessel.]  There  shall 
be  paid  to  each  seaman  or  other  person  who  is  sent  to  the  United  States  from 
any  foreign  port,  station,  sea,  or  ocean,  by  any  United  States  minister,  charge 
d'affaires,  consul,  captain,  or  commander,  to  give  testimony  in  any  criminal 
case  depending  in  any  court  of  the  United  States,  such  compensation,  exclusive 
of  subsistence  and  transportation,  as  such  court  may  adjudge  to  be  proper, 
not  exceeding  one  dollar  for  each  day  necessarily  employed  in  such  voyage, 
and  in  arriving  at  the  place  of  examination  or  trial.  In  fLxing  such  compensa- 
tion, the  court  shall  take  into  consideration  the  condition  of  said  seaman  or 
witness,  and  whether  his  voyage  has  been  broken  up,  to  his  injury,  by  his 
being  sent  to  the  United  States. 

Wlien  such  seaman  or  person  is  transported  in  an  armed  vessel  of  the 
United  States  no  charge  for  subsistence  or  transportation  shall  be  allowed. 
When  he  is  transported  in  any  other  vessel,  the  compensation  for  his  trans- 
portation and  subsistence,  not  exceeding  in  any  case  fifty  cents  a  day,  may  be 
fixed  by  the  court,  and  sliall  be  paid  to  the  captain  of  said  vessel  accordingly. — 
(26  Feb.,  1853,  c.  SO,  s.  3,  v.  10,  p.  168.) 


420 


CHAPTER  SEVENTEEN. 


EVIDENCE. 


Sec.  Sec. 

859.  Evidence  in  criminal  proceedings.  879. 

8G8.  Depositions  for  use  in  Federal  coui-ts.  881. 

869.  Compelling  production  of  records  before 

commissioner  appointed  to  take  deposi-  882. 

tions.  883. 

870.  Fees  of  witness  before  commissioner  to  be 

paid  in  advance.  886. 

871.  Depositions  for  use  in  State  com-ts.  887. 

872.  Depositions  when  no  commission  issued.  888. 

873.  Manner  of  taking  and  transmitting  depo-  895. 

eitions.  896. 

874.  Witness  fees  allowed  for  giving  depositions .  905 . 
877.  Witnesses;  form  of  subpoena.  906. 


Imprisonment  or  recognizance  of  witnesses. 
Confinement  of  witnesses  at  any  time  to 

insure  appearance. 
Copies  of  department  records  and  papers. 
Copies  of  records  in  office  of  Solicitor  of 

Treasury. 
Transcripts  from  records  of  Treasury. 
Evidence  in  embezzlement  cases. 
Copies  of  records  in  Returns  Office. 
Extracts  from  Journals  of  Congress. 
Copies  of  records  in  consular  offices. 
Authentication  of  State  laws  and  records. 
Proof  of  State  records  other  than  judicial. 


Sec.  859.  [Evidence  in  criminal  proceedings.]  No  testimony  given  by  a  witness 
before  either  House,  or  before  any  committee  of  either  House  of  Congress, 
shall  be  used  as  evidence  in  any  criminal  proceeding  against  him  in  any  court, 
except  in  a  prosecution  for  perjmy  committed  in  giving  such  testimony.  But 
an  official  paper  or  record  produced  by  him  is  not  within  the  said  privilege. 
[See  §  103.]— (24  Jan.,  1862,  c.  11,  v.  12,  p.  333.  24  Jan.,  1857,  c.  19,  s.  2, 
V.  11,  p.  156.) 


Accused  shall,  at  his  own  request  but  not  other- 
wise, be  a  competent  witness  in  proceed- 
ings before  coiuts-martial,  courts  of  in- 
quiry, and  civil  courts  of  the  United  States. 
His  failure  to  make  such  request  shall  not 
create  anv  presumption  against  him.  (Act 
Mar.  16,  1878,  20  Stat.,  30.) 

Admissibility  of  evidence  in  Federal  criminal 
cases  is  to  be  determined  by  the  law  of 
the  State  where  the  court  is  held,  as  it 
existed  when  the  courts  of  the  IJnited 
States  were  established  by  the  judiciary 
act  of  1789.  (U.  S.  v.  Reid,  12  How., 
.361;  Fitter  i;.  U.  S.,  258  Fed.  Rep.,  576.) 

Court  of  inquiry  records  admissible  in  evidence 
before  naval  courts-martial  in  cases  not 
capital  nor  extending  to  dismissal  of  com- 
missioned or  warrant  officer,  provided  oral 
testimony  can  not  be  obtained.  (Sec.  1624, 
R.  S.,  art.  60.) 

Courts-martial— see  section  1624,  Revised  Sta- 
tutes, articles  29,  40-42  and  60. 

Depositions  may  be  used  in  evidence  before 
naval  courts  in  cases  not  capital  nor  ex- 
tending to  imprisonment  for  more  than  one 
year.  (Act  Feb.  16,  1909,  sec.  16,  35  Stat., 
622.) 


Handwriting  may  be  proved  by  comparison 
with  any  admitted  or  proved  handwriting 
of  the  party  which  may  be  offered  in  evi- 
dence.    (Act  Feb.  26,  1913,  37  Stat.,  683.) 

Husband  or  wife  of  accused  shall  be  competent 
witness  in  prosecutions  for  bigamy,  polyg- 
amy, or  unlawful  cohabitation,  but  shall 
not  be  compelled  to  testify,  nor  shall  such 
^\itness  be  permitted  to  testify  as  to  any 
confidential  communication.  (Act  Mar.  3, 
1887,_  sec.  1,  24  Stat.,  635.  In  other  cases 
wife  is  not  competent  to  testify  for  or  against 
husband  in  United  States  coiirts,  except 
where  he  is  charged  with  personal  injury 
to  her.  See  C.  M.  O.  31,  June  12,  1914; 
C.  M.  O.  22,  1916,  p.  8;  compare  Fitter  v. 
U.  S.,  258  Fed.  Rep.,  576.) 

Incriminating  or  degrading  testimony — See 
note  to  Constitution,  fifth  amendment. 

Possession  of  goods  imported  contrary  to  law 
sufficient  evidence  to  sustain  conviction 
unless  satisfactorily  explained.  (Sec.  3082, 
R.S.) 

Possession  of  opium  imported  contrary  to  law 
sufficient  e\ddence  to  sustain  conviction 
unless  satisfactorily  explained.  (Act  Feb. 
9,  1909,  sec.  2,  35  Stat.,  614.) 


Sec.  868.  [Deposition  for  use  in  Federal  courts.]  When  a  commission  is  issued 
by  any  court  of  the  United  States  for  taking  the  testimony  of  a  witness  named 
therein  at  any  place  within  any  district  or  Territory,  the  clerk  of  any  court  of 
the  United  States  for  such  district  or  Territory  shall,  on  the  application  of 
either  party  to  the  suit,  or  of  his  agent,  issue  a  subpoena  for  such  witness, 


421 


Sec.  868. 


PL  2.  REVISED  STATUTES. 


The  Judiciary. 


cominaiuling  liim  to  appear  and  testify  before  the  commissioner  named  in  the 
commission,  at  a  time  and  place  stated  in  the  subpoena;  and  if  any  witness, 
after  being  duly  served  with  such  subpoena,  refuses  or  neglects  to  appear,  or, 
after  appearing,  refuses  to  testify,  not  being  privileged  from  giving  testimony, 
and  such  refusal  or  neglect  is  proven  to  the  satisfaction  of  any  judge  of  the 
court  whose  clerk  issues  such  subpoena,  such  judge  may  proceed  to  enforce 
obedience  to  the  process,  or  punish  the  disobedience,  as  any  com't  of  the  United 
States  may  proceed  in  case  of  disobedience  to  process  of  subpoena  to  testify 
issued  by  such  court. — (24  Jan.,  1827,  c.  4,  s,  1,  v.  4,  p.  197;  York  Co.  v.  Central 
R.  R.,  3  Wall,  113.) 


Depositions  for  use  before  naval  courts  are 
authorized  by  actof  February  16, 1909,  sec- 
tion 16  (35  Stat.,  622). 

Depositions  for  use  before  departments  in  con- 
nection with  pending  claims  are  authorized 
by  section  184,  Revised  Statutes. 

Deposition.s  for  use  in  the  Court  of  Claims  are 
authorized  by  the  Judicial  Code,  act  of 
March  3,  1911,  sections  163,  168-171  (36 
Stat.,  1140,  1141). 

Depositions  in  ci\il  cases,  without  the  previous 
issuance  of  a  commission  by  the  court  in 
which  pending,  are  authorized  by  sections 
863,  864,  and  865,  Revised  Statutes. 

Depositions,  taken  in  mode  prescribed  by  State 
laws,  for  use  in  Federal  courts,  are  author- 
ized by  act  of  March  9, 1892  (27  Stat.,  7). 

Depositions  for  use  in  Federal  courts,  upon  the 
previous  issuance  of  a  commission,  are 
authorized  by  sections  866-868,  Revised 
Statutes. 

Depositions  for  use  in  State  courts  are  author- 
ized by  sections  871-874,  Revised  Statutes. 

Notaries  public  of  the  States,  Territories,  and 
District  of  Columbia  were  authorized  to 
take  depositions,  by  act  of  August  15,  1876 
(19  Stat.,  206). 


Heads  of  departments, — See  note  to  sec- 
tion 871,  Revised  Statutes,  as  to  duty  of  heads 
of  departments  to  testify  or  furnish  depositions. 

Assistant  to  head  of  department  re- 
quired to  appear  and  testify  before  commis- 
sioner appointed  to  take  his  deposition. — In 
habeas  corpus  proceedings  instituted  by  a  Chi- 
naman in  the  United  States  Court  for  the  West- 
ern District  of  Washington  it  was  contended  by 
petitioner  that  proceedings  for  his  deportation 
were  invalid  for  the  reason  that  his  appeal  to 
the  Secretary  of  Labor  was  heard  and  disposed 
of  by  a  subordinate  officer  of  the  Department  of 
Labor,  who  signed  his  action  thereon  as  Acting 
Secretary,  whereas  such  officer  had  been  author- 
ized to  perform  the  duties  of  the  Secretary, 
under  section  179,  Re\dsed  Statutes,  only  when 
the  Secretary  and  Assistant  Secretary  were 
both  absent  from  the  department,  and  at  the 
time  in  question  both  the  Secretary  and  As- 
sistant Secretary  were  present  at  their  offices. 
A  commission  was  issued  by  the  court  to  take 
the  deposition  of  the  Assistant  Secretary  of 
Labor  before  a  commissioner  in  the  District  of 
Columbia.  A  subpopna  was  duly  issued  by  the 
Supreme  Court  of  the  District  of  Columbia,  re- 
quiring the  Assistant  Secretary  to  appear  and 
testify   before    the    said    commissioner.    The 


Assistant  Secretary  appeared,  but  declined  to 
answer  the  interrogatories  or  cross- interroga- 
tories propounded,  on  the  ground  that  each 
question  "relates  to  the  internal  administration 
of  the  department  and  I  regard  it  as  calling  for 
an  answer  that  might  be  prejudicial  to  the  pub- 
lic interest.  For  this  reason  I  decUne  to  answer 
until  instructed  otherwise  by  the  Secretary  of 
Labor."  The  first  and  material  question  was: 
"Were  you  on  duty  at  the  Department  of  Labor 
on  each  of  the  following  dates:  September  24, 
1914,  September  25,  1914,  and  September  26, 
1914?  "  A  rule  was  issued  to  the  Assistant  Sec- 
retary by  the  Supreme  Court  of  the  District  of 
Columbia,  requiring  him  to  show  cause  why  he 
should  not  answer  the  questions  propounded. 
In  his  return  the  Assistant  Secretary  stated,  in 
part,  that  he  had  been  instructed  by  the  Sec- 
retary of  Labor  "that  the  disclosures  sought  to 
be  obtained  by  the  interrogatories  propounded 
would  be  prejudicial  to  the  public  interest," 
and  that  "he  was  advised  by  the  Solicitor  of  the 
Department  of  Justice  for  the  Department  of 
Labor,  as  a  matter  of  law,  that  he  was  privileged 
to  decline  to  answer  the  said  questions  pursuant 
to  such  instructions  and  for  the  reasons  stated 
in  said  declination. ' '  It  was  thereupon  ordered 
by  the  court  that  the  Assistant  Secretary  appear 
before  the  commissioner  and  make  full  and  true 
response  to  the  question  above  quoted.  In  the 
opinion  of  the  court  it  was  stated  in  part: 

"  It  will  therefore  be  seen  that  the  question 
propounded  to  the  witness  Post,  which  he 
decUned  to  answer,  goes  to  the  jurisdiction  of 
the  officer  who  assumed  to  act  as  Secretary  of 
Labor  in  signing  the  mandate,  or  order  of 
exclusion,  under  which  Ching  Hing  is  detained. 

"As  stated  by  Judge  Dooling  of  the  United 
States  District  Court  for  the  Northern  District 
of  California  in  the  case  of  In  re  Tsuie  Shoe 
et  al.,  on  October  23,  1914:  'The  appellants 
were  by  law  entitled  to  appeal  to  the  Secretary 
of  Labor,  and  entitled  to  have  their  appeal 
heard  and  determined  by  him  except  as  above 
stated,  and  the  determination  of  their  appeal 
by  another  not  authorized  is  neither  a  fair 
hearing,  nor  due  process  of  law.' 

"Briefly  stated ,  the  question  asked  respondent 
was  whether  or  not  he  was  on  duty  in  the  de- 
partment on  three  named  days.  Upon  his 
answer  to  an  extent,  depends  the  liberty  of 
Ching  Hing.  He  declined  to  answer  because 
the  answer  'might  be  prejudicial  to  the  public 
interest.'  In  exactly  what  manner  it  might 
be  'prejudicial  to  the  public  interest'  for 
any  official  to  testify  as  to  whether  he  was,  at  a 
given    time,    performing    the    duties   charged 


422 


The  Judiciary. 


Pt.2.  RE  VISED  STAT  UTES . 


Sec.  869. 


upon  him  by  law  and  for  which  he  was  being 
paid  at  public  expense,  when  the  fact  becomes 
important  in  a  judicial  investigation  affecting 
the  hberty  of  an  individual — even  a  China- 
-is  not  apparent  on  this  record.     In  the 


man- 


refuse  to  permit  an  investigation  as  to  the  fact 
of  such  jurisdiction.  If  the  Department  of 
Labor  has  acted  without  authority,  and  an 
individual  has  been  denied  his  hberty  as  a 
result  of  such  action,  it  is  most  extraordinary 
for  the  department  to  assert  that  pubhc  policy 
requires  a  concealment  of  the  truth  in  regard 
to  such  lack  of  authority.  Indeed,  if  the 
department  had  authority  to  act,  and  that 
authority  were  questioned  in  a  proper  judicial 
proceeding,  by  a  court  having  jurisdiction  of 
the  matter,  it  would  seem  reasonable  that  the 
respect  due  by  one  coordinate  branch  of  the 
Government  to  another  would  discountenance 
a  concealment  of  the  facts  upon  which  the 
department  acted."  (In  the  matter  of  Ching 
Hing,  Supreme  Court  of  the  District  of  Co- 
lumbia, decided  June  10,  1915,  file  26276-127; 
for  other  cases,  see  note  to  sees.  161,  417,  and 
418,  R.  S.,  and  Constitution,  Art.  II,  sec.  1, 
clause  1.  See  also  Ex  parte  Ching  Hing, 
224  Fed.  Rep.,  261,  in  which  the  commis- 
sion to  take  testimony  in  the  case  above 
quoted  was  recalled  by  the  United  States 
Court  for  the  Western  District  of  Washington, 
for  the  reason  that  after  such  commission  was 
issued  the  Secretary  of  Labor  personally  re- 
\T.ewed  and  affirmed  the  decision  of  the  "Act- 
ing Secretary"  in  the  same  proceedings;  af- 
firmed Ching  Hing  v.  White,  234  Fed." Rep., 
616.) 


instant  case,  upon  the  record  before  the  court, 
it  is  impossible  to  find  any  prejudice  to  the 
public  interest  in  requiring  an  answer  to  the 
question  propounded. 

"This  case  is  differentiated  from  Boske  v. 
Comingore  (177  U.  S.,  459),  where  the  infor- 
mation sought  of  the  collector  of  internal  rev- 
enue was  prohibited  by  a  regulation  of  the 
Secretary  of  the  Treasury  made  under  authority 
of  law  and  for  the  purpose  of  making  more 
efficient  the  Internal  Revenue  Service,  and 
also  from  such  cases  as  Gody  v.  Pentland 
(85  Pa.,  22),  in  which  public  officials  are  pro- 
tected in  their  refusal  to  produce  records  on 
grounds  of  public  policy.  Here  the  question 
of  the  public  policy  involved  in  the  answer 
sought  is  as  capable  of  being  decided  by  the 
court  as  by  the  executive  official,  because 
apparently  all  the  information  sin-rounding  the 
alleged  privilege  of  respondent  is  before  the 
court.  And  upon  this  information,  the  court 
is  of  the  opinion  that  it  is  the  duty  of  respondent 
to  answer  the  qviestion  put  to  him.  An  analo- 
gous situation  might  be  supposed  if  the  judg- 
ment of  a  com't  against  a  citizen  was  questioned 
because  of  the  lack  of  jmisdiction  in  the  court 
to  render  the  judgment,  and  the  court  should 

Sec.  869.  [Compelling  production  of  records  before  commissioner  appointed  to 
take  deposition.]  When  either  party  in  such  suit  appUes  to  any  judge  of  a  United 
States  court  in  such  district  or  Territory  for  a  subpoena  commanding  the  wit- 
ness, therein  to  be  named,  to  appear  and  testify  before  said  commissioner,  at 
the  time  and  place  to  be  stated  m  the  subpoena,  and  to  bring  with  him  and  pro- 
duce to  such  commissioner  any  paper  or  writmg  or  written  instrmnent  or  book 
or  other  document,  supposed  to  be  in  the  possession  or  power  of  such  witness, 
and  to  be  described  in  the  subpoena,  such  judge,  on  being  satisfied  by  the 
affidavit  of  the  person  applymg,  or  otherwise,  that  there  is  reason  to  beUeve 
that  such  paper,  writing,  written  instrument,  book,  or  other  document  is  in 
the  possession  or  power  of  the  witness,  and  that  the  same,  if  produced,  would 
be  competent  and  material  evidence  for  the  party  applying  therefor,  may 
order  the  clerk  of  said  court  to  issue  such  subpoena  accordmgly.  And  if  the 
witness,  after  being  served  with  such  subpoena,  fails  to  produce  to  the  com- 
missioner, at  the  time  and  place  stated  in  the  subpoena,  any  such  paper,  writ- 
ing, written  instrument,  book,  or  other  dociunent,  being  in  his  possession  or 
power,  and  described  in  the  subpoena,  and  such  failure  is  proved  to  the  satis- 
faction of  said  judge,  he  may  proceed  to  enforce  obedience  to  said  process  of 
subpoena,  or  punish  the  disobedience  in  like  maimer  as  any  court  of  the  United 
States  may  proceed  in  case  of  disobedience  to  like  process  issued  by  such  court. 
When  any  such  paper,  writing,  written  instrument,  book,  or  other  document 
is  produced  to  such  commissioner,  he  shall,  at  the  cost  of  the  party  requiring 
the  same,  cause  to  be  made  a  correct  copy  thereof,  or  of  so  much  thereof  as 
shall  be  required  by  either  of  the  parties. — (24  Jan.,  1827,  c.  4,  s.  2,  v.  4,  p. 
199;  1  Burr's  Trial,' 183.) 

See  notes  to  sections  161,  418,  and  871,  Revised  Statutes,  concerning  records  of  executive 
departments. 

423 


Sec.  871. 


Pt.2.  RE  VISED  STAT  UTES . 


The  Judiciary. 


Sec.  870.  [Fees  of  witness  before  commissioner  to  be  paid  in  advance.]  No 
witness  shall  be  required,  under  the  provisions  of  either  of  the  two  preced- 
ing sections,  to  attend  at  any  place  out  of  the  county  where  he  resides,  nor 
more  than  forty  miles  from  the  place  of  his  residence,  to  give  his  deposition; 
nor  shall  any  witness  be  deemed  guilty  of  contempt  for  disobeying  any  sub- 
poena directed  to  him  by  virtue  of  either  of  the  said  sections,  unless  his  fee  for 
gohig  to,  returning  from,  and  one  day's  attendance  at,  the  place  of  examina- 
tion, are  paid  or  tendered  to  him  at  the  time  of  the  service  of  the  subpoena. — 
(24  Jan.,  1S27,  c.  4,  ss.  1,  2,  v.  4,  pp.  197,  199.) 

Sec.  871.  [Depositions  for  use  in  State  courts.]  When  a  commission  to  take 
the  testunony  of  any  witness  found  within  the  District  of  Columbia,  to  be  used 
in  a  suit  depending  in  any  State  or  territorial  or  foreign  court,  is  issued  from  such 
court,  or  a  notice  to  the  same  effect  is  given  according  to  its  rules  of  practice, 
and  such  commission  or  notice  is  produced  to  a  justice  of  the  supreme  court 
of  said  District,  and  due  proof  is  made  to  him  that  the  testimony  of  such  wdtness 
is  material  to  the  party  desiring  the  same,  the  said  justice  shall  issue  a  sunmions 
to  the  witness,  requiring  him  to  appear  before  the  commissioners  named  in  the 
commission  or  notice,  to  testify  in  such  suit,  at  a  time  and  at  a  place  within  said 
District  therein  specified.— (.3  Mar.,  1869,  c.  128,  s.  1,  v.  15,  p.  324.) 


See  note  to  section  868,  Revised  Statutes,  for 
references  to  other  laws  authorizing  depo- 
sitions in  various  cases. 

Heads  of  departments. — In  the  absence 
of  specific  authority  on  the  subject  the  Attorney 
General  is  inclined  to  hold  that  the  head  of  a 
department  is  not  legally  bound  to  appear  and 
testify  in  obedience  to  a  subpa?na  of  a  court. 
However,  where  it  is  proposed  to  take  the  testi- 
mony by  commission,  and  the  head  of  the 
department  is  not  thus  reqvured  to  appear  in 
court  but  before  a  commissioner,  suggested  that 
an  arrangement  might  readily  be  made  which 
would  better  comport  with  the  dignity  of  his 
office  as  head  of  an  executive  department  of  the 
Government,  wherebj'  such  testimony  as  he 
should  deem  proper  and  ad\dsable  to  give  could 
be  taken  at  the  department  of  which  he  is  the 
head.  (25  Op.  Atty.  Gen.,  326;  see  also 
Gardner  v.  Anderson,"  9  Fed.  Gas.  No.  5220, 
noted  under  sec.  418,  R.  S.,  in  which  head  of 
department  refused  to  respond  to  subpoena  and 
court  refused  to  proceed  against  him  for  con- 
tempt. Compare  In  the  matter  of  Ching 
Hing.  noted  under  sec.  868,  R.  S.) 

Chiefs  of  bureaus  in  the  Navy  Depart- 
ment have  been  authorized  by  the  Secretary 
of  the  Navy  to  answer  interrogatories  pro- 
pounded before  a  commissioner  duly  appointed 
by  a  State  court  to  take  their  testimony,  without 
any  summons  being  issued  by  a  justice  of  the 
Supreme  Court  of  the  District  of  Columbia  as 
provided  for  by  the  above  section  of  the  Revised 
Statutes.  (See  for  example,  file  12475-52,  Oct. 
31,  UtH.) 

Copies  of  records  will  not  be  furnished 
parties  litigant  for  use  in  the  course  of  pro- 
ceedings in  a  Federal  or  State  court;  but  the 
Navy  Department  will  promptly  furnish  such 
copies  upon  call  of  the  court  before  which  the 
litigation  is  pending.  (G.  0.  No.  121,  Navy 
Dept.,  Sept.  17,  19i4,  par.  18;  see  also  file 
12475-65,  Jan.  12,  1916.) 


Officers  of  the  Navy  or  Marine  Corps  are  pro- 
hibited from  producing  official  records  or  copies 
thereof  in  a  State  court  in  answer  to  subpoena- 
duces  tecum  or  other\\'ise,  \vithout  first  obtain- 
ing authority  therefor  from  the  Secretary  of  the 
Navy.  (G.  O.  No._  121,  Navy  Dept.,  Sept. 
17,  1914,  par.  18,  citing  Boske  v.  Comingore. 
177  U.  S.,  460.) 

The  Navy  Department  will  permit  the  duly 
authorized  commissioner  appointed  by  a  State 
court  to  obtain  copies  of  records,  at  the  expense 
of  the  party  desiring  them,  the  same  as  such 
copies  would  have  been  furnished  upon  call  of 
the  court  before  which  litigation  is  pending  in 
which  they  are  to  be  used.  (File  12475-52:1, 
Aug.  15,  1914.) 

In  accordance  with  Navy  Regulations  (Art. 
R-2958,  1913)  and  the  practice  of  the  Navy 
Department,  a  medical  officer  is  not  authorized , 
without  approval  by  the  department  in  each 
specific  case,  to  (a)  sign  the  form  used  in  secret 
fraternal  orders  to  secure  sick  dues;  (b)  sign  a 
death  certificate  for  presentation  to  a  secret 
society  or  lodge  having  death  benefits;  or  (c) 
fill  out  insurance  blanks  in  the  case  of  the 
death  of  a  naval  patient.  This  relates  to 
medical  records  of  officers  and  enlisted  men  in 
the  naval  ser\dce  who  have  been  patients  of  the 
medical  officer  of  whom  the  certificates  are 
requested,  ^^^lere  certificates  of  death  are  re- 
quired by  State  laws  in  connection  with  the 
transportation  of  remains,  such  certificates 
would  be  "official  certificates"  and  would  not 
come  under  the  prohibition  of  the  regulation.^ . 
(File  12475-52:10,  Aug.  5,  1915;  see  also 
12475-52:8,  Dec.  5,  1914;  12475-71,  Mar.  16, 
1916;  26806-15,  Apr.  8,  1909;  5195-61:1,  Mar. 
21,  1912.) 

It  has  been  the  practice  of  the  Na\y  Depart- 
ment to  consider  a  man's  medical  record  as 
private  and  confidential,  and  that  it  should  be 
given  to  no  one  but  the  man  himself,  or  if  dead 
to  his  next  of  kin,  and  furthermore  that  such 


424 


The  Judiciary.  Pt.2.  REVISED  STATUTES.  Sec.  879. 


action  in  to  be  taken  only  upon  application  to 
the  department  direct.  (File  12475-52:8,  Dec. 
12,  1914;  C.  M.  O.  6,  1915,  p.  14.)  Attorneys  or 
agents  may  obtain  information  concerning  the 
service  of  officers  or  enlisted  men,  by  filing 
with  the  department  a  power  of  attorney  from 


the  party  or  his  next  of  kin,  and  giving  a  satis- 
factory statement  as  to  the  purpose  for  which 
the  desired  information  is  to  be  used.  (Art. 
1-26,  Naval  Instructions,  1913.) 

For  other  cases,  see  note  to  sections  161  and 
418,  Kevised  Statutes. 


Sec.  872.  [Depositions  when  no  commission  issued.]  Wlicn  it  satisfactorily 
appears  by  affidavit  to  any  justice  of  the  supreme  court  of  the  District  of 
Cohimbia,  or  to  any  commissioner  for  taldng  depositions  appointed  by  said 
court — 

Fu'st.  That  any  person  within  said  District  is  a  material  witness  for  either 
party  in  a  suit  pending  in  any  State  or  territorial  or  foreign  court; 

Second.  That  no  commission  nor  notice  to  take  the  testimony  of  such 
witness  has  been  issued  or  given;  and 

Third.  That,  accorduig  to  the  practice  of  the  court  in  which  the  suit  is 
pending,  the  deposition  of  a  witness  taken  without  the  presence  and  consent 
of  both  parties  will  be  received  on  the  trial  or  hearing  thereof,  such  officer  shall 
issue  his  summons,  requiring  the  witness  to  appear  before  him  at  a  place  within 
the  District,  at  some  reasonable  time,  to  be  stated  therem,  to  testify  in  such 
suit.— (3  Mar.,  1869,  c.  128,  s.  2,  v.  15,  p.  325.) 

Sec.  873.  [Manner  of  taking  and  transmitting  depositions.]  Testimony 
obtained  under  the  two  preceding  sections  shall  be  taken  do%\ai  m  writmg  by 
the  officer  before  whom  the  witness  appears,  and  shall  be  certified  and  trans- 
mitted by  him  to  the  court  in  which  the  suit  is  pending,  in  such  manner  as  the 
practice  of  that  court  may  require.  If  any  person  refuses  or  neglects  to  appear 
at  the  time  and  place  mentioned  in  the  summons,  or,  on  his  appearance,  refuses 
to  testify,  he  shall  be  liable  to  the  same  penalties  as  would  be  incurred  for  a 
hke  offense  on  the  trial  of  a  suit. — (3  Mar.,  1869,  c.  128,  s.  3,  v.  15,  p.  325.) 

Sec.   874.    [Witness  fees   allowed  for  giving  depositions.]     Every  witness 

appearing  and  testifying  under  the  said  provisions  relatmg  to  the  District  of 

Columbia  shall  be  entitled  to  receive  for  each  day's  attendance,  from  the  party 

at  whose  instance  he  is  summoned,  tlie  fees  now  provided  by  law  for  each  day 

he  shall  give  attendance. — (3  Mar.,  1869,  c.  128,  s.  4,  v.  15,  p.  325.) 

See  section  185,  Revised  Statutes,  as  to  fees 
allowed  witnesses  giving  depositions  for  use 
before  departments  in  pending  claims. 

Sec.  877.  [Witnesses;  form  of  subpoena.]  Witnesses  who  are  required  to 
attend  any  term  of  a  circuit  or  district  court  on  the  part  of  the  United  States, 
shall  be  subpoenaed  to  attend  to  testify  generally  on  their  behalf,  and  not  to 
depart  the  court  without  leave  thereof,  or  of  the  district  attorney;  and  under 
such  process  they  shall  appear  before  the  grand  or  petit  jury,  or  both,  as  they 
may  be  required  by  the  court  or  district  attorney. — (6  Feb.,  1853,  c.  80,  s.  3,  v. 
10,  p.  169.) 


See   sections   848-851,    Revised    Statutes,    for 
amount  of  fees  allowed  witnesses. 


which  United  States  courts  of  criminal 
jurisdiction  may  lawfully  issue.  (Act  Feb. 
16,  1909,  sec.  11,  35  Stat.,  621.) 


Circuit  courts  were  abolished  by  the  Judicial 

Code,  act  of  March  3,  1911,  sections  289- 

291  (36  Stat.,  1167). 
Naval  courts  have  power  to  issue  like  process 

to  compel  witnesses  to  appear  and  testify 

Sec.  879.  [Imprisonment  or  recognizance  of  witnesses.]  Any  judge  or  other 
officer  who  may  be  authorized  to  arrest  and  imprison  or  bail  persons  charged 
with  any  crime  or  offense  against  the  United  States  may,  at  the  hearing  of  any 

425 


Sec.  882. 


Pt.2.  REVISED  STATUTES. 


The  Judiciary. 


such  char<]::e,  rcHjuiro  of  any  witness  produced  against  the  prisoner,  on  pain  of 
imprisojunent,  a  recognizance,  with  or  without  sureties,  in  his  discretion,  for 
his  appearance  to  testify  in  the  case.  And  where  the  crime  or  ofiFense  is  charged 
to  have  been  connnitted  on  the  high  seas,  or  elsewhere  within  the  admiralty 
and  maritime  jurisdiction  of  the  United  States,  he  may,  m  his  discretion,  require 
a  hke  recognizance,  with  such  sureties  as  he  may  deem  necessary,  of  any  witness 
produced  in  behalf  of  the  accused,  whose  testimony  in  his  opinion  is  important, 
and  is  in  danger  of  being  otherwise  lost.  [See  §§  848,  1014.] — (24  Sept.,  1789, 
c  20,  s.  33,  r.  1,  p.  91;  23  Aug.,  1842,  c.  188,  s.  2,  v.  5,  p.  517;  8  Aug.,  1846, 
c.  98,  s.  7,  V.  9,  p.  73.) 

See  note  to  section  877,  Revised  Statutes,  as  to  power  of  naval  courts  to  compel  attend- 
ance of  witnesses. 


Sec.  881.  [Confinement  of  witnesses  at  any  time  to  insure  appearance.] 
Any  judge  of  the  United  States,  on  the  application  of  a  district  attorney,  and 
on  being  satisfied  by  proof  that  the  testimony  of  any  person  is  competent  and 
will  be  necessary  on  the  trial  of  any  criminal  proceeding  in  w^hich  the  United 
States  are  parties  or  are  interested,  may  compel  such  person  to  give  recognizance; 
with  or  without  sureties,  at  his  discretion,  to  appear  to  testify  therein;  and,  for 
that  purpose,  may  issue  a  warrant  against  such  person,  under  his  hand,  with 
or  without  seal,  directed  to  the  marshal  or  other  officer  authorized  to  execute 
process  in  behaK  of  the  United  States,  to  arrest  and  bring  before  him  such 
person.  If  the  pereon  so  arrested  neglects  or  refuses  to  give  recognizance  in  the 
manner  required,  the  judge  ma}-  issue  a  warrant  of  commitment  agamst  him, 
and  the  officer  shall  convey  him  to  the  prison  mentioned  therein.  And  the  said 
person  shall  remain  in  confinement  until  he  is  removed  to  the  court  for  the 
purpose  of  giving  his  testimony,  or  until  lie  gives  the  recognizance  required  by 
said  judge.— (8  Aug.,  1846,  c.  98,  s.  7,  v.  9,  p.  73.) 


See  note  to  section  877,  Revised  Statutes,  as  to 
power  of  naval  courts  to  compel  attendance 
of  witnesses. 

In  prosecutions  for  unlawful  cohabitation, 
when  it  appears  that  there  is  reasonable 
ground  to  believe  that  a  witness  will  refuse 


to  obey  a  subpoena,  an  attachment  for  such 
witness  may  be  issued  without  pre\'iou8 
subpoena,  and  the  witness  held  until  he 
executes  a  recognizance  for  his  appearance. 
(Act  Mar.  3,  1887,  sec.  2,  24  Stat,.  635.) 


Sec.  882.  [Copies  of  Department  records  and  papers.]  Copies  of  any  books, 
records,  papers,  or  documents  m  any  of  the  Executive  Departments,  authen- 
ticated under  the  seals  of  such  Departments,  respectively,  shall  be  admitted 
in  evidence  equally  with  the  originals  thereof. — ^(15  Sept.,  1789,  c.  14,  s.  5, 
V.  1,  p.  69.  22  Feb.,  1849,  c.  61,  s.  3,  v.  9,  p.  347.  31  May,  1854,  c,  60,  s.  2, 
V.  10,  p.  297.) 


Certified  copies  of  records  in  naturalization 
cases  are  evidence  in  any  case  in  which 
originals  might  be  admissible.  (Act  June 
29,  1906,  sec.  28,  34  Stat.,  606.) 

Courts-martial — As  to  admissibility  of  evidence 
and  competency  of  witnesses  before  naval 
courts-martial,  see  section  1624,  Revised 
Statutes,  articles  40-42.  and  60. 

Practice  of  Navy  Department  as  to  fiirnishing 
copies  of  records  for  use  in  court  proceed- 
ings— See  note  to  section  871,  Revised 
Statutes. 


Scope  of  section. — Only  papers  or  docu- 
ments which  were  made  by  an  officer  or  agent 
of  the  Government  in  the  course  of  his  official 
duty  are  embraced  by  this  section,  which  can 
not  be  held  to  include  every  document  or 
paper  on  file.     (Block's  case,  7  Ct.  Cls. ,  406.) 

The  words  "documents"  and  "papers"  used 
in  acts  of  Congress  do  not  mean  every  document 
or  paper  on  file  in  a  department,  but  such  as 
were  made  public  documents  by  officers  of  the 
Government  in  the  discharge  of  their  duties. 
(The  Ship  Parkman,  35  Ct.  Cls.,  407.) 


426 


The  Judiciary. 


Pt.2.  RE  VISED  S  TA  T  UTES . 


Sec.  886. 


The  statutes  pro^^ding  for  the  authentica- 
tion of  copies  of  books,  papers,  and  documents 
in  the  executive  departments  employ  sub- 
stantially the  same  language  that  is  used  by 
common-law  writers  on  the  same  subject  and 
they  must  be  understood  and  interpreted  by 
the  same  reasons  that  govern  at  common  law. 
(Block's  case,  7  Ct.  Cls.,  406.) 

Transcripts  from  the  records  of  the  executive 
departments,  when  authenticated  by  the  seal 
of  the  department,  are  e\iden-ce  both  at  com- 
mon law  and  by  statute;  but  the  words  ■"docu- 
ments" and  '"papers"  used  in  the  act  of 
Congress  can  not  be  held  to  mean  evei-y  docu- 
ment or  paper  on  file,  but  such  only  as  were 
made  by  an  officer  or  agent  of  the  Government 
in  the  course  of  his  official  duty.  Official  docu- 
ments duly  certified  need  no  further  proof;  but 
other  documents,  though  on  file,  do  not  by  the 
mere  fact  of  certification  become  so  authenti- 
cated as  to  entitle  them  to  be  read  in  evidence. 
(Block's  Ci-ise,  7  Ct.  Cls.,  406.) 

A  receipt  for  property  captured,  procured 
from  a  military  governor  by  a  claimant  and  by 
him  filed  in  an  executive  department,  is  not  a 
public  dociunent;  and  an  authenticated  copy 
thereof  can  not  be  read  in  evidence.  The 
original  must  be  produced  and  proved  accord- 
ing to  the  rule^  of  evidence.  (Block's  case, 
7  Ct.  Cls.,  406.) 

This  statute  applies  at  least  to  any  paper 
which  is  by  law  required  to  be  kept  on  file  in 
any  executive  department;  it  is  not  limited  to 
papei"s  written  by  an  officer  in  his  official  ca- 
pacity. (Cohn  V.  U.  S.,  258  Fed.  Rep.,  355, 
362.) 

See  notes  to  section  1624,  Re"vised  Statutes, 
articles  34  and  42. 

Form  of  authentication. — It  is  a  sufficient 
compliance  with  this  section  for  the  liead  of 
the  office  where  the  record  is  kept  to  certify 
that  it  is  a  true  copy  of  the  original,  and  for 


the  head  of  the  department  to  certify  under 
seal  to  the  official  character  of  the  head  of  the 
ofiice.     (Ballew  v.  U.  S.,  160_  U.  S.,  187.) 

State  courts  may  admit  in  e\'idence  certi- 
fied copies  of  papers  and  documents  on  file  in 
the  Navy  Department,  pursuant  to  State  stat- 
utes similar  to  the  above  provision  of  section 
882.  (See,  for  example,  Maurice  v.  Worden, 
54Md.,233.) 

When  documentary  evidence  is  offered 
before  a  naval  court-martial  it  must  be  in  a 
public  session  of  the  court,  and  if  admitted  the 
document  in  full  or  an  authenticated  copy 
thereof  must  be  appended  to  the  record  or  set 
out  in  full  in  the  recorded  testimony  of  the  wit- 
ness who  reads  from  the  document  (Naval 
Courts  and  Boards,  1917,  arts.  187,  203),  except 
that  it  is  not  necessary  for  a  court-martial  to  ap- 
pend either  the  originals  or  certified  copies  of 
efficiency  reports  to  the  record  of  proceedings 
when  introduced  in  evidence,  a  simple  nota- 
tion in  the  record  that  they  were  admitted  in 
evidence  being  sufficient,  as  the  originals  form 
a  part  of  the  officer's  official  record  on  file  in 
the  Navy  Department,  where  they  may  readily 
be  examined  at  any  time  in  connection  with  the 
court-martial  proceedings.  (C.  M.  O.  19,  May 
25,  1915,  citing  file  26'251-7777,  July  2,  1913.) 

When  it  is  desired  to  put  any  part  of  the  offi- 
cial record  of  an  officer  in  evidence,  the  origi- 
nal, where  available,  should  be  offered,  and 
the  action  of  a  judge  advocate  in  making  ad- 
missions as  to  its  contents  would  not  in  general 
meet  "with  the  approval  of  the  Navy  Depart- 
ment. (C.  M.  O.  19,  May  25,  1915;  Naval 
Courts  and  Boards,  1917,  art.  191.) 

Court-martial  orders,  general  and  special 
orders,  circulars,  regulations,  and  similar  pub- 
lications of  the  Navy  Department  should  be 
judicially  noticed  by  courts-martial  without 
being  offered  in  evidence.  (See  Naval  Coui"ta 
and  Boards,  1917.) 


Sec.  883.  [Copies  of  records  in  oflace  of  Solicitor  of  Treasury.]  Copies  of  any 
documents,  records,  books,  or  papers  in  the  office  of  the  Solicitor  of  the  Treas- 
ury, certified  by  him  under  the  seal  of  his  office,  or,  when  his  office  is  vacant, 
by  the  officer  acthig  as  SoHcitor  for  the  time,  shall  be  evidence  equally  "with 
the  originals.— (22  Feb.,  1849,  c.  61,  s.  2,  v.  9,  p.  347.) 

Sec.  886.  [Transcripts  from  records  of  Treasury.]  Wlien  suit  is  brought  in 
any  case  of  delinquency  of  a  revenue  officer,  or  other  person  accoimtable  for 
public  money,  a  transcript  from  the  books  and  proceedings  of  the  Treasury 
Department,  certified  by  the  Register  and  authenticated  under  the  seal  of 
the  Department,  or,  when  the  suit  involves  the  accounts  of  the  War  or  Navy 
Departments,  certified  by  the  Auditors  respectively  charged  with  the  exami- 
nation of  those  accounts,  and  authenticated  under  the  seal  of  the  Treasmy 
Department,  shall  be  admitted  as  evidence,  and  the  court  trying  the  cause 
shall  be  authorized  to  grant  judgment  and  award  execution  accordmgly.  And 
all  copies  of  bonds,  contracts,  or  other  papers  relatmg  to,  or  connected  with, 
the  settlement  of  any  account  between  the  United  States  and  an  individual, 
when  certified  by  the  Register,  or  by  such  Auditor,  as  the  case  may  be,  to  be 
true  copies  of  the  originals  on  file,  and  authenticated  imder  the  seal  of  the 
Department,  may  be  annexed  to  such  transcripts,  and  shall  have  equal  validity, 
and  be  entitled  to  the  same  degree  of  credit  which  would  be  due  to  the  original 


54641°— 22- 


-28 


427 


Sec.  806.  Pt.  2.  REVISED  STATUTES.  The  Judiciary. 

papers  if  produced  and  authenticated  in  court:  Provided,  That  where  suit  is 
brought  upon  a  bond  or  other  sealed  instrument,  and  the  defendant  pleads 
"non  est  factum,"  or  makes  his  motion  to  the  court,  verifying  such  plea  or 
motion  by  his  oath,  the  court  may  take  the  same  into  consideration,  and,  if  it 
appears  to  be  necessary  for  the  attainment  of  justice,  may  require  the  produc- 
tion of  the  original  bond,  contract,  or  other  paper  specified  in  such  affidavit. — 
(3  Mar.,  1797,  c.  20,  s.  1,  v.  1,  p.  512;  3  Mar.,  1817,  c.  45,  s.  11,  v.  3,  p.  367; 
Walton  V.  U.  S.,  9  Wh.,  651 ;  U.  S.  v.  Buford,  3  Pet.,  12;  Smith  v.  U.  S.,  5  Pet., 
292;  Coxv.  U.S.,  6  Pet.,  172;  U.  S.  v.  Jones,  8  Pet.,  375;  Gratiot  v.  U.  S., 
15  Pet.,  336;  U.  S.  v.  Irving,  1  How.,  250;  Hoyt  v,  U.  S.,  10  How.,  109;  Bruce 
V.  U.  S.,  17  How.,  437;  U.  S.  v.  Edwards,  1  McLean,  467;  U.  S.  v.  Hilhard 
et  al.,  3  McLean,  324;  U.  S.  v.  Lent,  1  Paine,  417;  U.  S.  v.  Martin,  2  Paine, 
68;  U.  S.  V.  Van  Zandt,  2  Cr.  C.  C,  328;  U.  S.  v.  Griffith,  2  Cr.  C.  C,  336; 
U.  S.  V.  Lee,  2  Cr.  C.  C,  462;  U.  S.  v.  Harrill,  1  McAll.,  243;  U.  S.  v.  Mattison, 
Gilp.,  44;   U.  S.  v.  Corwin,  1  Bond,  149;   U.  S.  v.  Gaussen,  19  Wall.,  198.) 

This  section  was  amended  by  act  of  July  31, 1894, 
eection  17  (28  Stat.,  210),  as  amended  by 
act  of  March  2, 1895,  section  10  (28  Stat.,  809), 


80  as  to  require  that  "the  transcripts  from 
the  books  and  proceeding  of  the  Depart- 
ment of  the  Treasury  and  the  copies  of  the 


bonds,  contracts,  and  other  papers  pro- 
vided for"  in  section  886,  Revised  Stat- 
utes, "shall  hereafter  be  certified  by  the 
Secretary  or  an  Assistant  Secretary  of  the 
Treasury  imder  the  seal  of  the  Depart- 
ment." 


Sec.  887.  [Evidence  in  embezzlement  cases.]  Upon  the  trial  of  any  indict- 
ment agamst  any  person  for  embezzling  public  moneys,  it  shall  be  sufficient 
evidence,  for  the  purpose  of  showing  a  balance  against  such  person,  to  produce 
a  transcript  from  the  books  and  proceedings  of  the  Treasury  Department,  as 
provided  by  the  preceding  section. — (6  Aug.,  1846,  c.  90,  s.  16,  v.  9,  p.  63; 
2  Mar.,  1797,  c.  20,  s.  1,  v.  1,  p.  512.     U.  S.  v.  Gaussen,  19  Wall.,  198.) 

A  similar  provision  is  contained  in  the  Criminal 

Code,  act  March  4,   1909,  section  93  (35 

Stat.,  1105). 
A  provision  that  transcript  from  account  books 

of  Auditor  for  Post  Office  Department  shall 

be  prima  facie  evidence  of  balance  against 

person  on  trial  for  embezzlement  of  postal 

funds,  is  contained  in  the  Criminal  Code, 

act  of  March  4,  1909,  section  225  (35  Stat., 

1133.) 
Accepting  or  transmitting  to  Treasury  Depart- 
ment for  allowance,  receipt  from  creditor 

of  the  United  States  without  having  paid 

full  amount  specified  therein,  is  evidence 


of  conversion.  (Criminal  Code,  act  Mar.  4, 
1909,  sec.  95,  35  Stat.,  1106.) 

Failure  to  produce  or  pay  over  postal  funds 
when  required  is  prima  facie  evidence  of 
embezzlement.  (Criminal  Code,  act  Mar. 
4,  1909,  sec.  225,  35  Stat.,  1133.) 

On  general  subject  of  embezzlement  see  sec- 
tions 89-96,  Criminal  Code,  act  March  4, 
1909  (35  Stat.,  1105,  1106),  and  section 
1624,  Revised  Statutes,  article  14. 

Refusal  of  officer  to  surrender  or  transfer  pubUc 
funds  when  required  is  prima  facie  evidence 
of  embezzlement.  (Criminal  Code,  act 
Mar.  4,  1909,  sec.  94,  35  Stat.,  1106.) 


Sec.  888.  [Copies  of  records  in  Returns  Office.]  A  copy  of  any  return  of  a 
contract  returned  and  filed  in  the  returns-office  of  the  Department  of  the  Inte- 
rior, as  provided  by  law,  when  certified  by  the  clerk  of  the  said  office  to  be  full  and 
complete,  and  when  authenticated  by  the  seal  of  tlie  Department,  shall  be  evi- 
dence in  any  prosecution  agamst  any  officer  for  falsely  and  corruptly  swearmg 
to  the  affidavit  required  by  law  to  be  made  by  such  officer  in  making  his  return 
of  any  contract,  as  required  by  law,  to  said  returns-office.  [See  §  3744,] — (2 
June,  1862,  c.  93,  s.  4,  v.  12,  p.  412.) 

See  sections  512-515,  Revised  Statutes,  relating  to  Returns  Office. 

Sec.  895.  [Extracts  from  Journals  of  Congress.]  Extracts  from  the  Journals 
of  the  Senate,  or  of  the  House  of  Representatives,  and  of  the  Executive  Journal 
of  the  Senate  when  the  injunction  of  secrecy  is  removed,  certified  by  the  Secre- 

428 


The  Judiciary. 


Pt.2.  REVISED  STATUTES. 


Sec.  90d. 


tary  of  the  Senate  or  by  the  Clerk  of  the  House  of  Representatives,  shall  be 
admitted  as  evidence  in  the  courts  of  the  United  States,  and  shall  have  the 
same  force  and  effect  as  the  originals  would  have  if  produced  and  authenticated 
in  court.— (8  Aug.,  1846,  c.  107,  s.  1,  v.  9,  p.  80.) 

See  section  859,  Revised  Statutes,  concerning  testimony  given  by  witnesses  before  Congress. 

Sec.  896.  [Copies  of  records  in  consular  offices.]  Copies  of  all  official  docu- 
ments and  papers  in  the  office  of  any  consul,  vice-consul,  or  commercial  agent 
of  the  United  States,  and  of  all  official  entries  in  the  books  or  records  of  any 
such  office,  certffied  imder  the  hand  and  seal  of  such  officer,  shall  be  admitted 
in  evidence  in  the  courts  of  the  United  States.  [See  §  1707.] — (8  Jan.,  1869, 
c.  7,  V.  15,  p.  266.) 

Copies  of  protests  or  declarations  before  consular  officers  are  admissible  in  evidence  under 
section  1707,  Revised  Statutes. 

Sec.  905.  [Authentication  of  State  laws  and  records.]  The  acts  of  the  legis- 
lature of  any  State  or  Territory,  or  of  any  country  subject  to  the  jurisdiction 
of  the  United  States,  shall  be  authenticated  by  having  the  seals  of  such  State, 
Territory,  or  country  affijced  thereto.  The  records  and  judicial  proceedings  of 
the  courts  of  any  State  or  Territory,  or  of  any  such  country,  shall  be  proved  or 
admitted  in  any  other  court  within  the  United  States,  by  the  attestation  of  the 
clerk,  and  the  seal  of  the  court  amiexed,  if  there  be  a  seal,  together  with  a  cer- 
tificate of  the  judge,  chief  justice,  or  presiding  magistrate,  that  the  said  attesta- 
tion is  in  due  form.  And  the  said  records  and  judicial  proceedings,  so  authenti- 
cated, shall  have  such  faith  and  credit  given  to  them  in  every  court  within  the 
United  States  as  they  have  by  law  or  usage  in  the  courts  of  the  State  from  which 
they  are  taken.— (26  May.,  1790,  c.  11,  v.  1,  p.  122;  27  Mar.,  1804,  c.  56,  s.  2, 
v.  2,  p.  299;  Ferguson  v.  Harwood,  7  Cr.,  408;  Mills  v.  Duryee,  7  Cr.,  481; 
U.  S.  V.  Amedy,  11  Wh.,  392;  Buckner  v.  Finley,  2  Pet.,  592;  Owings  v.  Hull, 
9  Pet.,  627;  Urtetiqui  v.  D'Arbel,  9  Pet.,  700;  McEhnoyle  v.  Cohen,  13  Pet., 
312;  Stacey  v.  Thrasher,  6  How.,  44;  Bank  of  Alabama  v.  Dal  ton,  9  How., 
522;  D'Arcy  v.  Ketchum,  11  How.,  165;  Railroad  v.  Howard,  13  How.,  307; 
Booth  V.  Clark,  17  How.,  322;  Mason  v.  Lawrason,  1  Cr.  C.  C,  190;  Buford  v. 
Hickman,  Hemp.,  232;  Craig  v.  Brown,  Pet.  C.  C,  354;  Stewart  v.  Gray, 
Hemp.,  94;  Gardner  v.  Lindo,  1  Cr.  C.  C,  78;  Trigg  v.  Conway,  Hemp.,  538; 
Turner  v.  Waddington,  3  Wash.  C.  C,  126;  Cathn  v.  Underbill,  4  McLean,  199; 
Morgan  v.  Curtenius,  4  McLean,  366;  Hale  v.  Brotherton,  3  Cr.  C.  C,  594; 
Mewster  v.  Spaldmg,  6  McLean,  24;  Parrot  v.  Habersham,  1  Cr.  C.  C,  14; 
Talcott  V.  Delaware  Ins.  Co.,  2  Wash.  C.  C,  449;  James  v.  Stookey,  1  Wash. 
C.  C,  330;    Bennett  v.  Bennett,  District  Court,  Oregon,  1867.) 


Revised  Statutes  of  the  United  States  (first 
edition ):  Printed  volume  legal  evidence  of 
the  laws  therein  contained  (act  June  20, 
1874,  sec.  2,  18  Stat.,  113). 

Revised  Statutes  of  the  United  States  (^second 
edition):  Printed  volume  legal  evidence  of 
the  laws  therein  contained,  but  shall  not 
preclude  reference  to  nor  control  in  case  of 
discrepancy  the  effect  of  any  original  act 
as  passed  by  Congress  since  December  1, 
1873.  (Act  Mar.  2,  1877,  sec.  4,  19  Stat., 
269,  as  amended  by  act  Mar.  9,  1878,  20 
Stat.,  27.) 


Statutes  at  Large:   Printed  volumes  legal  evi- 
dence of  laws  and  treaties  therein  con- 
tained.    (Act  June  20,    1874,   sec.   8,    18 
Stat.,  114;  act  Jan.   12,   1894,  sec.   73,  28 
Stat.,  612.) 
Judicial    notice     of     State     laws. — The 
National  and  State  courts,  not  being  foreign  to 
one  another,  as  the  State  courts  are,  but  sub- 
ordinate courts  of  a  complete  system  of  Govern- 
ment, with  limited  and  separate  jurisdiction; 
and  the  former  having  judicial  knowledge  of 
the  laws  of  the  several  States,  and  therefore  of 
the  mode  of  authenticating  the  judicial  records 


429 


Sec.  906.  Pt.  2.  REVISED  STATUTES.  The  Judiciary. 


thereof,  a  statute  prescribing  the  mode  of  prov- 
ing the  judicial  records  of  a  State  when  used  in 
another  State  does  not  apply  to  a  case  where 
such  record  is  sought  to  be  used  in  a  national 
court.  (Bennett  v.  Bennett,  3  Fed.  Cas.  No. 
1318;  see  also,  as  to  judicial  notice  by  courts 
of  the  United  States  of  the  public  statutes  of 
the  several  States,  Merchants  Exch.  Bank  v. 
McGraw,  59  Fed.  Rep.,  972;  Owinga  v.  Hull, 
9  Pet.,  625;  Bank  v.  Francklyn,  120  U.  S.,  747; 
Lamar  v.  Micou,  114  U.  S.,  857;  Gormley  v. 
Bunyan,  138  U.  S.,  453.) 
All  Federal  courts,  when  exercising  original 


State  where  they  are  sitting,  but  of  every  other 
State  and  of  every  Territory.  All  courts  in 
the  United  States  take  judicial  notice  of  the 
United  States  Constitution  and  amendments 
thereto,  and  of  the  public  statutes  enacted  by 
Congress.  Judicial  knowledge  of  a  statute  in- 
cludes the  date  when  it  went  into  effect,  when 
it  was  suspended  or  repealed,  and  facta  recited 
or  recognized  in  the  statute.  (See  16  Cyc,  889, 
890,  892,  and  cases  there  cited.) 

Naval  cotirts-m.artial  must  take  judicial 
notice  of  the  law  of  a  State  which  is  pertinent 
to  a  case  on  trial,  without  such  law  having  been 


jurisdiction,  take  judicial  notice  of  the  consti-   j    offered  in  evidence.     (C.  M.  O.  27, 1913,  p.  8.) 
tutions  and  public  statutes,  not  only  of  the   | 

Sec.  906.  [Proof  of  State  records  other  than  judicial.]  iVll  records  and  exem- 
plifications of  books,  which  may  be  kept  in  any  pubUc  office  of  any  State  or 
Territory,  or  of  any  country  subject  to  the  jurisdiction  of  the  United  States, 
not  appertaumig  to  a  court,  shall  be  proved  or  admitted  m  any  court  or  office 
in  any  other  State  or  Territory,  or  in  any  such  country,  by  the  attestation  of 
the  keeper  of  the  said  records  or  books,  and  the  seal  of  his  office  annexed,  if 
there  be  a  seal,  together  with  a  certificate  of  the  presidmg  justice  of  the  court 
of  the  county,  parish,  or  district  in  which  such  office  may  be  kept,  or  of  the 
governor,  or  secretary  of  state,  the  chancellor  or  keeper  of  the  great  seal,  of 
the  State,  or  Territory,  or  country,  that  the  said  attestation  is  in  due  form, 
and  by  the  proper  officers.  If  the  said  certificate  is  given  by  the  presiding 
justice  of  a  court,  it  shall  be  further  authenticated  by  the  clerk  or  prothonotary 
of  the  said  court,  who  shaU  certify,  under  his  hand  and  the  seal  of  his  office, 
that  the  said  presiduig  justice  is  duly  commissioned  and  qualified;  or,  if  given 
by  such  governor,  secretary,  chancellor,  or  keeper  of  the  great  seal,  it  shall  be 
under  the  great  seal  of  the  State,  Territory,  or  country  aforesaid  m  which  it  is 
made.  And  the  said  records  and  exemphfications,  so  authenticated,  shall  have 
such  faith  and  credit  given  to  them  in  every  court  and  office  within  the  United 
States  as  they  have  by  law  or  usage  in  the  courts  or  offices  of  the  State,  Terri- 
tory, or  country,  as  aforesaid,  from  which  they  are  taken. — (27  Mar.,  1804, 
c.  56,  ss.  1,  2,  V.  2,  pp.  298,  299;   21  Feb.,  1871,  c.  62,  v.  16,  p.  419.) 


430 


CHAPTER  EIGHTEEN. 

PROCEDURE. 

Sec.  1023.  [Perjury  before  naval  court-martial.]  In  prosecutions  for  per- 
jury committed  on  examination  before  a  naval  general  court-martial,  or  for  the 
subornation  thereof,  it  shaU  be  sufficient  to  set  forth  the  offense  charged  on 
the  defendant,  without  setting  forth  the  authority  by  which  the  court  was 
held,  or  the  particular  matters  brought  before,  or  intended  to  be  brought 
before  said  court.— (17  July,  1862,  c.  204,  s.  1,  art.  13,  v.  12,  p.  604.) 


Perjury  committed  by  persons  in  the  naval 
servdce  is  punishable  under  section  1624, 
Re^dsed  Statutes,  article  14,  clause  4,  and 
articles  22  and  42. 


Perjury  is  defined  and  made  punishable  by  fine 
and  imprisonment,  by  the  Criminal  Code, 
act  March  4,  1909,  section  125  (35  Stat.,. 
nil). 


431 


CHAPTER  TWENTY-ONE. 

THE  COURT  OF  CLAIMS— JURISDICTION,  POWERS,  AND 

PROCEDURE. 

[The  Provisions  of  Existing  Law  Concerning  the  Court  of  Claims  Are  Contained  m  the  Judicial  Code,  Act  of 
March  3, 1911,  Sections  136-187  (36  Stat.,  1135-1143).  The  Following  Sections  of  the  Revised  Statutes,  which 
Are  Repealed  by  Section  297  of  the  Judiclal  Code  (36  Stat.,  1168),  Are  Noted  Below  for  Convenience  in 
Locating  the  Corresponding  Sections  of  the  Judiclal  Code  to  which  They  Have  Been  Transferred.] 


Sec.  1059.  [Jurisdiction :  Claims  against  United  States  ;  set-offs ;  disbursing 
officers'  responsibility  for  losses.]     See  section  145,  Judicial  Code  (36  Stat.,  1136). 

Sec.  1061.  [Judgments  for  set-off  or  counterclaim.]  See  section  146, 
Judicial  Code  (36  Stat.,  1137.) 

Sec.  1062.  [Decree  relieving  disbursing  officers  of  responsibility  for  losses.] 
See  section  147,  Judicial  Code  (36  Stat.,  1137). 

Sec.  1063.  [Questions  referred  to  Court  of  Claims  by  heads  of  departments.] 

See  section  148,  Judicial  Code  (36  Stat.,  1137). 

Sec.  1064.  [Procedure  in  cases  transmitted  by  departments.]  See  section 
149,  Judicial  Code  (36  Stat.,  1138). 

Sec.  1065.  [Judgments  in  cases  transmitted  by  departments;  how  paid. 
See  section  150,  Judicial  Code  (36  Stat.,  1138). 

Sec.  1075.  [Commissioners  to  take  testimony.]  See  section  163,  Judicial 
Code  (36  Stat.,  1140). 

Sec.  1076.  [Power  to  call  upon  departments  for  information.]  See  section 
164,  Judicial  Code  (36  Stat.,  1140). 

Sec.  1088.  [New  trial  on  motion  of  United  States.]  See  section  175,  Judicial 
Code  (36  Stat.,  1141). 


432 


TITLE  XIY. 
THE  ARMY. 


Sec. 

1135.  Supplies  and  transportation  for  naval  and 
marine  detachments. 

1143.  Rations,  to  be  furnished  naval  detach- 
ments. 

1176.  Trusses,  to  whom  furnished. 

1177.  Trusses,  applications  for. 

1178.  Trusses,  purchase  of. 

1225.  Detail  of  Army  and   Navy  officers    to 
educational  institutions. 


Sec. 

1229.  Dismissal  of  officers  in  military  or  naval 
service. 

1342,  Art.  2.     Persons  subject  to  military  law. 

1342,  Art.  4.  Who  may  serve  on  courts- 
martial. 

1342,  Art.  120.  Command,  when  different 
corps  happen  to  join. 


Sec.  1135.  [Supplies  and  transportation  for  naval  and  marine  detachments.] 
The  officers  of  the  Quartermaster's  Department  shall,  upon  the  requisition  of 
the  naval  or  marine  officer  commanding  any  detachment  of  seamen  or  marines 
under  orders  to  act  on  shore,  in  co-operation  with  land  troops,  and  during  the 
time  such  detachment  is  so  acting  or  proceeding  to  act,  furnish  the  officers  and 
seamen  with  camp-equip^age,  together  with  transportation  for  said  officers, 
seamen,  and  marines,  their  baggage,  provisions,  and  cannon,  and  shall  furnish 
the  naval  officer  commanding  any  such  detachment,  and  his  necessary  aids, 
with  horses,  accouterments,  and  forage. — (15  Dec,  1814,  c.  13,  ss.  1,2,  v.  3,  p.  151.) 


Ordnance  or  ordnance  stores  may  be  trans- 
ferred or  sold  to  other  executive  depart- 
ments, payment  to  be  made  by  the  proper 
disbursing  officer  of  the  department  con- 
cerned, the  price  to  include  cost  price  of 
the  stores  and  the  costs  of  inspection  and 
transportation.  (Act  Aug.  24,  1912,  37 
Stat.,  589.) 

Quartermaster-General  of  Army  may  sell  arti- 
cles of  ser\'iceable  quartermaster  property 
to  officers  of  the  Navy  and  Marine  Corps 
for  use  in  the  public  serv-ice.  the  same  as 
such  articles  are  sold  to  officers  of  the 
Army.  (Act  Mar.  4,  1915,  38  Stat., 
1079.) 

Subsistence  supplies  of  the  Army  may  be  sold 
to  officers  and  enUsted  men  of  the  Navy 
and  Marine  Corps  at  same  prices  charged 
officers  and  enlisted  men  of  the  Army. 
(Act  Mar.  4,  1915,  38  Stat.,  1072.) 

Subsistence  supplies  furnished  by  the  War 
Department  to  another  executive  depart- 
ment are  to  be  paid  for  in  cash  by  the  proper 
disbursing  officer  of  the  bureau,  office,  or 
department  concerned .  or  by  the  employee 
to  whom  the  sale  is  mafle;  the  price  charged 
to  include  the  contract  or  invoice  price  and 
10  per  cent  additional  to  cover  wastage  in 
transit,  and  the  cost  of  transportation.  "(Act 
Mar.  3,  1911,  36  Stat.,  1047.) 

Transportation  by  or  under  the  instructions  of 
the  Quartermaster  General  of  the  Army,  of 
property  for  the  civil  or  naval  departments 
of  the  Government  in  Washington  or  else- 


where, under  the  regulations  governing  the 
transportation  of  Army  supplies,  was  au- 
thorized byactof  July 5, 1884  (23  Stat.,  Ill), 
which  provided  that  the  amount  paid  for 
such  transportation  should  be  refunded  or 
paid  by  the  bureau  to  wliich  such  property 
or  stores  pertained . 

When  in  the  opinion  of  the  Secretary  of  War 
accommodations  are  available,  transporta- 
tion may  be  provided  for  the  officers,  en- 
listed men,  employees,  and  supplies  of  the 
Navy,  the  Marine  Corps,  and  other  officers 
of  the  Government  while  traveling  on  offi- 
cial business,  and  without  expense  to  the 
United  States  for  the  families  of  those  per- 
sons herein  authorized  to  be  transported. 
(Act  Mar.  2,1907,  34  Stat.,  1170.) 

When  in  the  opinion  of  the  Secretary  of  War 
accommodations  are  available,  transporta- 
tion on  vessels  of  the  Army  transport  serv- 
ice may  be  furnished  to  officers,  employees, 
and  enlisted  men  of  the  Coast  Guard  and 
their  families,  without  expense  to  the 
United  States,  and  also  secretaries  and 
supplies  of  the  Army  and  Navy  depart- 
ment of  the  Young  Men's  Christian  Asso- 
ciation.    (Act  Mar.  3, 1911,  36  Stat.,  1051.) 

When  the  War  Department  procures  stores  or 
material,  or  performs  any  service,  for  the 
Navy  Department,  the  funds  of  the  Navy 
Department  may  be  placed  subject  to  the 
requisition  of  the  ^^'ar  Department  for 
direct  expenditure  bv  it.  (Act  Mar.  4, 
1915,  38  Stat.,  1084.) 


Sec.  1143.  [Rations  to  be  furnished  naval  detachments.]  The  officers  of  the 
Subsistence  Department  shall,  upon  the  requisition  of  the  naval  or  marine  offi- 

433 


Sec.  1178. 


Pt.2.  REVISED  STATUTES. 


The  Army. 


ccr  commanding  any  dotachmont  of  seamen  or  marines  under  orders  to  act  on 
shore,  in  co-operation  with  the  hind  troops,  and  during  the  time  such  detach- 
ment is  so  acting  or  proceeding  to  act,  furnish  rations  to  the  officers,  seamen, 
and  marines  of  the  same. — (15  Dec,  1814,  c.  13,  s.  1,  v.  3,  p.  151.) 


Provision  for  supplyinc;  enlisted  men  of  the  Ma- 
rine Corps  with  the  Army  or  Navy  ration, 
or  commutation   therefor,    under  varying 


conditions,  was  made  by  section  1615,  Re- 
vised Statutes,  and  act  of  March  4, 1913(37 
Stat.,  909). 


Sec.  1176.  [Trusses,  to  whom  furnished.     Superseded.] 


This  section  provided  as  follows: 

"Sec.  117().  Every  soldier  of  the  Union  Army 
who  was  ruptured  while  in  the  line  of  duty  dur- 
ing the  war  for  the  suppression  of  the  rebellion, 
is  entitled  to  receive  a  single  or  double  truss,  of 
such  style  as  may  be  designated  by  the  Surgeon 
General,  as  best  suited  for  his  disability." — (28 
May,  1872,  c.  228,  s.  1,  v.  17,  p.  164.) 

It  was  superseded  by  the  following  pro- 
vL^^ion  of  the  actof  ^hirch  3, 1879  (20  Stat.,  353): 

"That  section  one  of  the  act  entitled  'An  act 
to  provide  for  furni.-^hing  tnisses  to  disabled  sol- 
diers,' approved  May  twenty -eighth,  eighteen 
hundred  and  seventy-two  [incorporated  in  sec- 
tion 1176,  Revised  Statutes],  be,  and  the  same  is 
hereby,  amended  so  that  said  section  shall  read 
as  follows: 

"That  every  soldier  of  the  Union  Army,  or 
petty-officer,  seaman,  or  marine  in  the  naval 
service,  who  was  ruptured  while  in  the  line  of 
duty  during  the  late  war  for  the  suppression  of 
the  rebellion,  or  who  shall  be  so  ruptured  there- 
after in  any  war,  shall  be  entitled  to  receive  a 
single  or  double  truss  of  such  style  as  may  be 
designated  by  the  Surgeon  General  of  the 
United  States  Army  as  best  suited  for  such 
disability ; 


"And  whenever  the  said  truss  or  trusses  so 
furnished  shall  become  useless  from  wear,  de- 
struction, or  loss,  such  soldier,  petty-officer,  sea- 
man, or  marine  shall  be  supplied  with  another 
truss  on  making  a  like  application  as  provided 
for  in  section  two  of  the  original  act  of  which 
this  is  an  amendment: 

^^ Provided,  That  such  application  shall  not  be 
made  more  than  once  in  two  years  and  six 
months;    *    *    *" 

The  words  "section  two  of  the  original 
act,"  as  used  in  the  above  enactment  of  March 
3,  1879,  refer  to  section  2  of  the  act  of  May  28, 
1872,  which  is  incorporated  in  section  1177,  Re- 
vised Statutes,  set  forth  below. 

Artificial  limbs  or  commutation  therefor  are 
allowed  officers,  soldiers,  seamen,  and  marines 
who  shall  have  lost  a  limb  in  the  line  of  duty  in 
the  military  or  naval  service,  by  act  of  August 
15,  1876  (19  Stat.,  203).  See  also  section  4787, 
Revised  Statutes,  as  amended  by  acts  of  Febru- 
ary 27,  1877,  section  1(19  Stat.,  252)  and  March  3, 
1891  (26 Stat.,  1103);  and  see  sections 4788-4791, 
Revised  Statutes,  as  amended  by  acts  of  Febru- 
ary 27,  1877  (19  Stat.,  252)  and  March  3,  1891 
(26  Stat,  979). 


Sec.  1177.  [Trusses,  application  for.]  Application  for  such  truss  shall  be 
made  by  the  ruptured  soldier,  to  an  examining  surgeon  for  pensions,  whose 
duty  it  shall  be  to  examine  the  applicant,  and  when  found  to  have  a  rupture  or 
hernia,  to  prepare  and  forward  to  the  Surgeon-General  an  application  for  such 
truss  without  charge  to  the  soldier.  [See  §  4787.] — (28  May,  1872,  c.  228,  s.  2, 
V.  17,  p.  164.) 


ice,  as  well  as  to  soldiers  of  the  Army."  Sec- 
tion 2  of  the  act  mentioned  was  incorporated  in 
section  1177,  Revised  Statutes,  and  section  3  of 
said  act  was  embodied  in  section  1178,  Revised 
Statutes. 


This  section  was  amended  by  act  of  March 
3,  1879  (20  Stat.,  353),  which  provided,  "That 
sections  two  and  three  of  the  said  act  of  May 
twenty-eighth,  eighteen  hundred  and  seventy- 
two,  shall  be  construed  so  as  to  apply  to  petty 
officers,  seamen,  and  marines  of  the  naval  serv- 

Sec.  1178.  [Trusses,  purchase  of.]  The  Surgeon-General  is  authorized  and 
directed  to  purcliase  tlic  trusses  required  for  such  soldiers,  at  wholesale  prices, 
and  tlie  cost  of  the  same  shall  be  paid  upon  the  requisition  of  the  Surgeon- 
General  out  of  any  moneys  in  the  Treasury  not  otherwise  apiDropriated. — (26 
May,  1872,  c.  228,  s.  3,  v.  17,  p.  164.) 


This  section  was  amended  by  act  of  March 
3,  1879,  quoted  above,  under  section  1177,  Re- 
vised Statutes. 

It  was  repealed  in  part  by  the  following 
provision  of  the  act  of  I\Iay  27, 1908  (35  Stat. ,  367) : 
"So  much  of  section  eleven  hundred  and 
eeventy-eight  of  the  Revised  Statutes  of  the 
United  States  as  makes  a  permanent  indefinite 


appropriation  to  purchase  trusses  for  soldiers, 
is  repealed,  to  take  effect  after  June  thirtieth, 
nineteen  hundred  and  nine,  and  estimates  of 
sufficient  sums  for  the  purchase  of  such  trusses 
shall  be  submitted  to  Congress  for  the  fiscal 
year  nineteen  hundred  and  ten,  and  annually 
thereafter,  in  the  regular  Book  of  Estimates." 


434 


The  Army. 


Pt.2.   REVISED  STATUTES. 


Sec.   1225. 


Sec.  1225.  [Detail  of  Army  and  Navy  officers  to  educational  institutions.] 
The  President  may,  upon  the  apphcation  of  any  estabhshed  mihtary  institute, 
seminary  or  academy,  college  or  university,  within  the  United  States  having 
capacity  to  educate  at  the  same  time  not  less  than  one  hundred  and  fifty  male 
students,  detail  an  officer  of  the  Army  or  Navy  to  act  as  superintendent,  or 
professor  thereof;  but  the  number  of  officers  so  detailed  shall  not  exceed  fifty 
from  the  Army,  and  ten  from  the  Navy,  being  a  maximum  of  sixty,  at  any  time, 
and  they  shall  be  apportioned  throughout  the  United  States,  first,  to  those 
State  institutions  applying  for  such  detail  that  are  required  to  provide  instruc- 
tion in  mihtary  tactics  under  the  provisions  of  the  act  of  Congress  of  Jaly 
second,  eighteen  hundi-ed  and  sixty-two,  donating  lands  for  the  estabHshment 
of  colleges  where  the  leading  object  shall  be  the  practical  instruction  of  the 
industrial  classes  in  agriculture  and  the  mechanic  arts,  including  mihtary 
tactics;  and  after  that,  said  details  to  be  distributed,  as  nearly  as  may  be 
practicable,  according  to  population.  Tho  Secretary  of  War  is  authorized  to 
issue,  at  his  discretion  and  under  proper  regulations  to  be  prescribed  by  him, 
out  of  ordnance  and  ordnance  stores  belonging  to  the  Government,  and  which 
can  be  spared  for  that  purpose,  such  number  of  the  same  as  may  appear  to 
be  required  for  mihtary  instruction  and  practice  by  the  students  of  any  coUege 
or  university  under  the  provisions  of  this  section,  and  the  Secretary  shall 
require  a  bond  in  each  case,  in  double  the  value  of  the  property,  for  the  care 
and  safe  keeping  thereof,  and  for  the  retiu'n  of  the  same  when  required. 

This  section  •was  expressly  amended  and 
reenacted  to  read  as  above  by  act  of  September 
26,  1888  (25  Stat.,  491),  section  2  of  which  act 
provided  "That  the  said  section  twelve  hun- 
dred and  twenty-five  of  the  Revised  St.;tutes 
of  the  United  States,  as  amended  by  the  said 
act  of  Congress  approved  July  fiith,  eighteen 
hundred  and  eighty-four,  and  all  acts  and  parts 
of  acts  inconsistent  or  in  conflict  with  the  pro- 
visions of  this  act,  be,  and  the  same  are  hereby, 
repealed,  saving  always,  however,  all  acts  and 
things  done  under  the  said  amended  section  as 
heretofore  existing." 

As  originally  enacted,  this  section  pro- 
\'ided  as  follows : 

"Sec.  1225.  The  President  may,  upon  the 
application  of  any  established  college  or  uni- 
versity within  the  United  States,  having  capac- 
ity to  educate,  at  the  same  time,  not  less  than 
one  hundred  and  fifty  male  students,  detail  an 
officer  of  the  Army  to  act  as  president,  superin- 
tendent, or  professor  thereof;  but  the  number 
of  officers  so  detailed  shall  not  exceed  twenty 
at  any  time,  and  they  shall  be  apportioned 
throughout  the  United  States,  as  nearly  as  may 
be  practicable,  according  to  population.  Offi- 
cers so  detailed  shall  be  governed  by  general 
rules  prescribed,  from  time  to  time,  by  the 
President.  The  Secretary  of  War  is  authorized 
to  issue  at  his  discretion  and  under  proper  regu- 
lations to  be  prescribed  by  him,  out  of  any 
small  arms  or  pieces  of  field  artillery  belonging 
to  the  Government  and  which  can  be  spared 
for  that  purpose,  such  nimiber  of  the  same  as 
may  appear  to  be  required  for  military  instruc- 
tion and  practice,  by  the  students  of  any  college 
or  university  under  the  provisions  of  this  sec- 
tion; and  the  Secretary  shall  require  a  bond  in 
each  case,  in  double  the  value  of  the  property, 


for  the  care  and  safe-keeping  thereof,  and  for 
the  return  of  the  same  when  required."  28 
July,  1866,  c.  229,  s.  26,  v.  14,  p.  336.  4  May, 
1870,  res.  40,  v.  16,  p.  373. 

By  act  of  July  6,  1876  (19  Stat.,  74),  the 
maximum  number  of  officers  to  be  detailed  to 
educational  institutions  was  increased  from 
twenty,  as  authorized  by  the  original  section 
1225,  to  thirty,  and  by  act  of  July  5,  1884  (23 
Stat.,  108),  was  further  increased  to  forty,  until 
section  1225  was  amended  and  reenacted  as  set 
forth  above  by  act  of  September  26,  1888  (25 
Stat.,  491). 

OTHER  LAWS  AUTHORIZING   DETAILS  TO   gDXJCA- 
•  TIONAL  INSTITUTIONS. 

Sec.  1260,  R.S.:  "Any  retired  officer  may,  on 
his  own  application,  be  detailed  to  serve  as  pro- 
fessor in  any  college.  [But  while  so  serving, 
such  officer  shall  be  allowed  no  additional  com- 
pensation.]"— (15  July,  1870,  C.294,  s.  23,  v. 
16,  p.  320.     27  Feb.,  1877,  c.  69,  v.  19,  p.  243.) 

Act  Fchruary  26,  1879  {20  Stat.,  322):  "That 
for  the  pm-pose  of  promoting  a  knowledge 
of  steam  engineering  and  iron  shipbuilding 
among  the  young  men  of  the  United  States, 
the  President  may,  upon  the  application  of  an 
established  scientific  school  or  college  within 
the  United  States,  detail  an  officer  from  the 
Engineer  Corps  of  the  Navy  as  professor  in  such 
school  or  college:  Provided,  That  the  number  of 
officers  so  detailed  shall  not  at  any  time  exceed 
twenty-five,  and  such  details  shall  be  governed 
by  rules  to  be  prescribed  from  time  to  time  by 
the  President:  And  provided  further.  That  such 
details  may  be  withheld  or  withdrawn  when- 
ever, in  the  judgment  of  the  President,  the  in- 
terests of  the  public  service  shall  so  require." 


435 


Sec.   1225. 


Pt.2.  REVISED  STATUTES. 


The  Army. 


[The  "Eiifxinoer  Corps  of  the  Navy"  was 
abolishod  and  (heporsonnol  thereof  transferred 
to  the  line  of  the  Navy  by  act  of  March  3,  1899 
(30  Stat.,  1004).  See  note  to  section  1390,  Re- 
vised Statute.] 

Act  Mivj  <,  ISSO  {21  Stat.,  /iJ).-  "Upon  the 
application  of  any  college,  university,  or  insti- 
tution of  k'arninu;  incorporated  under  the  laws 
of  any  State  witliin  the  United  States,  having 
capacity  at  the  same  time  to  educate  not  less 
than  one  liundred  and  lifty  male  students,  the 
President  may  detail  an  oilicer  of  the  Army  on 
the  retired  list  to  act  as  president,  superintend- 
ent, or  professor  thereof;  and  such  oilicer  may 
receive  from  the  institution  to  which  he  may  be 
detailed  the  difference  between  his  retired  and 
full  pay,  and  shall  not  receive  any  additional 
pay  or  allowance  from  the  United  States." 

Act  September  26,  1S8S  {25  Slat.,  491):  ''Pro- 
vided, That  nothing  in  this  act  shall  be  so  con- 
strued as  to  prevent  the  detail  of  officers  of  the 
En<:ineer  Corps  of  the  Navy  as  professors  in 
scientific  schools  or  colleges  as  now  provided  by 
act  of  Congress  approved  February  twenty- 
sixth,  eighteen  hundred  and  seventy-nine, 
entitled  'An  act  to  promote  a  knowledge  of 
steam  engineering  and  iron  shipbuilding  among 
the  students  of  scientific  schools  or  colleges  in 
the  United  States.'  "  [The  act  of  September  26, 
1888,  from  which  this  provision  is  taken,  reen- 
acted  section  1225,  Revised  Statutes,  as  set  forth 
above.  As  to  the  "Engineer  Corps  of  the 
Navy ' '  see  note  above  to  act  of  February  26, 
1879.] 

Act  January  13,  1891  (26  Stat.,  716):  "That 
section  twelve  hxindred  and  twenty-five  of  the 
Re^^sed  Statutes,  concerning  details  of  officers 
of  the  Army  and  Navy  to  educational  institu- 
tions, be,  and  the  same  is  hereby,  amended  so  as 
permit  the  President  to  detail,  under  the  pro- 
visions of  said  act,  not  to  exceed  seventy-five 
officers  of  the  Army  of  the  United  States;  and 
the  maximum  number  of  officers  of  the  Army 
and  Na\'j^  to  be  detailed  at  any  one  time  under 
the  provision  of  the  act  passed  September 
twenty-sixth,  eighteen  hundred  and  eighty- 
eight,  amending  said  section  twelve  hundred 
and  twenty-five  of  the  Revised  Statutes,  is 
hereby  increased  to  eighty-five:  Provided,  That 
no  officer  shall  be  detailed  to  or  maintained  at 
any  of  the  educational  institutions  mentioned 
in  said  act  where  instruction  and  drill  in  mili- 
tary tactics  is  not  given:  Provided  further,  That 
nothing  in  this  act  shall  be  so  construed  as  to 
prevent  the  detail  of  officers  of  the  Engineer 
Corps  of  the  Navy  as  professors  in  scientific 
schools  or  colleges  as  now  provided  by  act  of 
Congress  approved  February  twenty-sixth, 
eighteen  hundred  and  seventy-nine,  entitled 
'An  act  to  promote  a  knowledge  of  steam 
engineering  and  iron  shipbuilding  among  the 
students  of  scientific  schools  or  colleges  in  the 
United  States.'  "  [As  to  the  "Engineer  Corps 
of  the  Navy,"  see  note  above  to  act  of  February 
26,  1879.] 

_  Act  Novembers,  1893  (28 Stat.,  7):  "That sec- 
tion twelve  hundred  and  twenty-five  of  the 
Revised  Statutes,  concerning  details  of  officers 
of  the  Army  and  Navy  to  educational  institu- 
tions, be,  and  the  same  is  hereby,  amended  so 
as  to  permit  the  President  to  detail  under  the 
provisions  of  said  act  not  to  exceed  one  hundred 


officers  of  the  Army  of  the  United  States;  and 
no  ofiicer  shall  be  thus  detailed  who  has  not  had 
five  years'  service  in  the  Army,  and  no  detail  to 
such  duty  shall  extend  for  more  than  four  years; 
and  officers  on  the  retired  list  of  the  Army  may 
upon  their  own  application  be  detailed  to  such 
duty,  and  when  sodetailed  shall  receive  the  full 
pay  of  their  rank;  and  the  maximum  number 
of  officers  of  the  Army  and  Navy  to  be  detailed 
at  any  one  time  under  the  provisions  of  the  act 
approved  January  thirteenth,  eighteen  hundred 
and  ninety-one,  amending  section  twelve  hun- 
dred and  twenty-five  of  the  Revised  Statutes  as 
amended  by  an  act  approved  September 
twenty-sixth,  eighteen  hundred  and  eighty- 
eight,  is  hereby  increased  to  one  hundred  and 
ten." 

Act  August  6,  1894  {28  Stat.,  235):  "Nothing 
in  the  act  entitled  'An  act  to  increase  the  num- 
ber of  officers  of  the  Army  to  l)e  detailed  to  col- 
leges, '  approved  November  third,  eighteen  hun- 
dred and  ninety- three,  shall  be  so  construed  as 
to  prevent,  limit,  or  restrict  the  detail  of  retired 
officers  of  the  Army  at  institutions  of  learning 
under  the  provisions  of  section  twelve  hundred 
and  sixty.  Revised  Statutes,  and  the  act  mak- 
ing appropriations  for  the  support  of  the  Army, 
and  so  forth,  approved  May  fourth,  eighteen 
hundred  and  eighty,  nor  to  forl)id  the  issue  of 
ordnance  and  ordnance  stores,  as  provided  in 
the  act  approved  September  twenty-sixth, 
eighteen  hundred  and  eighty-eight,  amending 
section  twelve  hundred  and  twenty-five,  Re- 
used Statutes,  to  the  institutions  at  which  re- 
tired officers  may  be  so  detailed;  and  said  act 
of  November  third,  eighteen  hundred  and 
ninety-three,  and  said  act  of  May  fourth,  eight- 
een hundred  and  eighty,  shall  not  be  construed 
to  allow  the  full  pay  of  their  rank  to  retired  offi- 
cers detailed  under  said  section  twelve  hundred 
and  sixty,  Revised  Statutes,  and  said  act  of  May 
fourth,  eighteen  hundred  and  eighty." 

Act  March  2,  1895  {28  Stat.,  826):  "Any  re- 
tired officer  of  the  Navy  or  Marine  Corps  may, 
on  his  own  application,  be  detailed  to  service  as 
a  teacher  or  professor  in  any  school  or  college, 
but  while  so  serving  such  officer  shall  be  allowed 
no  additional  compensation." 

ActFehruan/26,1901  (31  Stat., 810):  "Whereas 
the  national  defense  must  depend  upon  the  vol- 
unteer service  of  the  people  of  the  several  States; 
and 

"Whereas  those  schools  which  shall  adopt  a 
system  of  military  instruction  are  entitled  to  the 
assistance  of  the  Government  in  order  to  secure 
to  the  United  States  such  a  knowledge  of  mili- 
tary affairs  among  the  youth  of  the  country  as 
will  render  them  efficient  as  volunteers  if  called 
upon  for  the  national  defense:  Therefore, 

"Be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives o  J  the  United  States  of  Americain  Con- 
gress assembled,  That  section  twelve  hundred 
and  twenty-five  of  the  Revised  Statutes,  con- 
cerning the  detail  of  officers  of  the  Army  and 
Navy  to  educational  institutions  be,  and  the 
same  is  hereby,  amended  so  as  fo  permit  the 
President  to  detail  under  the  provisions  of  that 
act,  and  in  addition  to  the  detail  of  the  officers 
of  the  Army  and  Navy  now  authorized  to  be 
detailed  under  the  existing  provisions  of  said 
act,  such  retired  officers  of  the  Army  and  Naw 
of  the  United  States  as  in  his  judgment  may  be 


436 


The  Army. 


Pt.2.  REVISED  STATUTES. 


Sec.   1225. 


required  for  that  purpose,  to  act  aa  instructors 
in.  military''  drill  and  tactics  in  schools  in  the 
United  States,  where  such  instruction  shall 
have  been  authorized  by  the  educational  au- 
thorities thereof,  and  where  the  ser\'ices  of  sucli 
instructors  shall  have  been  applied  for  by  said 
authorities. 

"Sec.  2.  That  no  detail  shall  lie  made  under 
this  act  to  any  school  unless  it  shall  pay  the 
cost  of  commutation  of  quarters  of  the  retired 
officers  detailed  thereto  and  the  extra-duty  pay 
to  which  the  latter  may  be  entitled  by  law  to 
receive  for  the  performance  of  special  duty: 
Provided,  That  no  detail  shall  be  made  under 
the  provisions  of  this  act  unless  the  officers  to 
be  detailed  are  willing  to  accept  such  position 
without  compensation  from  the  Goverimient 
other  than  their  retired  pay." 

Act  April  21,  1904  {33  Stat.,  225):  "That  sec- 
tion twelve  hundred  and  twenty-five  of  the 
Revised  Statutes,  concerning  the  detail  of 
officers  of  the  Army  and  Navy  to  educational 
institutions,  be,  and  the  same  is  hereby, 
amended  so  as  to  permit  the  President  to  detail 
under  the  provisions  of  that  act,  and  in  addi- 
tion to  the  detail  of  the  officers  of  the  Army  and 
Navy  now  authorized  to  be  detailed  under  the 
existing  provisions  of  said  act,  such  retired 
officers  and  noncommissioned  officers  of  the 
Army  and  Navy  of  the  United  States  as  in  his 
judgment  may  be  required  for  that  purpose  to 
act  as  instructors  in  military  drill  and  tactics 
in  schools  in  the  United  States  and  Territories 
where  such  instructions  shall  have  been 
authorized  by  the  educational  authorities 
thereof,  and  where  the  services  of  such  instruc- 
tors shall  have  been  applied  for  by  said 
authorities. 

"Sec.  2.  That  no  detail  shall  be  made  under 
this  act  to  any  school  unless  it  shall  pay  the 
cost  of  commutation  of  quarters  of  the 
retired  officers  or  noncommissioned  officers 
detailed  thereto  and  the  extra-duty  pay  to 
which  they  may  be  entitled  by  law  to  receive 
for  the  performance  of  special  duty:  Provided, 
That  no  detail  shall  be  made  under  the  provi- 
sions of  this  act  unless  the  officers  and  non- 
commissioned officers  to  be  detailed  are  willing 
to  accept  such  position :  Provided  further ,  That 
they  shall  receive  no  compensation  from  the 
Government  other  than  their  retired  pay." 

Act  March  3,  1909  (35  Stat.,  738):  "That  the 
act  approved  November  third,  eighteen  hun- 
dred and  ninety-three,  authorizing  the  detail 
of  officers  of  the  Army  and  Navy  to  educational 
institutions,  be  amended  so  as  to  provide  that 
retired  officers,  when  so  detailed,  shall  receive 
the  full  pay  and  allowances  of  their  rank,  ex- 
cept that  the  limitations  on  the  pay  of  officers 
of  the  Army  above  the  grade  of  major  as  pro- 
vided in  the  acts  of  March  second,  nineteen 
hundred  and  five,  and  June  twelfth,  nineteen 
hundred  and  and  six,  shall  remain  in  force." 

Act  March  4,  1911,  section  3  (33  Stat.,  1353): 
"That  the  President  of  the  United  States  is 
hereby  authorized,  when  in  his  opinion  the 
same  can  be  done  without  detriment  to  the 
public  service,  to  detail  proper  officers  of  the 
Navy  as  superintendents  of  or  instructors  in 
such  schools:  Provided,  That  if  any  such  school 
shall  be  discontinued,  or  the  good  of  the  naval 
service  shall  require,  such  vessel  shall  be  imme- 


diately restored  to  the  Secretary  of  the  Navy 
and  the  officers  so  detailed  recalled:  And  pro- 
vided further ,  That  no  person  shall  be  sentenced 
to  or  received  at  such  schools  as  a  punishment 
or  commutation  of  punishment  for  crime." 
[The  schools  referred  to  in  this  section  are 
certain  nautical  schools,  or  schools  or  colleges 
having  a  nautical  branch.] 

Act  June  3,  1916,  section  45  (39  Stat.,  192): 
"The  President  is  hereby  authorized  to  detail 
such  numbers  of  officers  of  the  Army,  either 
active  or  retired,  not  above  the  grade  of  colonel, 
as  may  be  necessary,  for  duty  as  professors  and 
assistant  professors  of  military  science  and 
tactics  at  institutions  where  one  or  more  units 
of  the  Reserve  Officers'  Training  Corps  are 
maintained;  but  the  total  number  of  active 
officers  so  detailed  at  educational  institutions 
shall  not  exceed  three  hundred,  and  no  active 
officer  shall  be  so  detailed  who  has  not  had  five 
years'  commissioned  service  in  the  Army.  In 
time  of  peace  retired  officers  shall  not  be 
detailed  under  the  provisions  of  this  section 
without  their  consent.  Retired  officers  below 
the  grade  of  lieutenant  colonel  so  detailed  shall 
receive  the  full  pay  and  allowances  of  their 
grade,  and  retired  officers  above  the  grade  of 
major  so  detailed  shall  receive  the  same  pay 
and  allowances  as  a  retired  major  would  receive 
under  a  like  detail.  No  detail  of  officers  on  the 
active  list  of  the  Regular  Army  under  the  pro- 
visions of  this  section  shall  extend  for  more 
than  four  years." 

Act  June3, 1916, section46 (39 Stat., 192):  "The 
President  is  hereby  authorized  to  detail  for 
duty  at  institutions  where  one  or  more  units  of 
the  Reserve  Officers'  Training  Corps  are  main- 
tained such  number  of  enlisted  men,  either 
active  or  retired  orof  the  Regular  Army  Reserve, 
as  he  may  deem  necessarj^  Itut  the  number  of 
active  noncommissioned  officers  so  detailed 
shall  not  exceed  five  hundred,  and  all  active 
noncommissioned  officers  so  detailed  shall  be 
additional  in  their  respective  grades  to  those 
otherwise  authorized  for  the  Army.  Retired 
enlisted  men  or  members  of  the  Regular  Army 
Reser\^e  shall  not  be  detailed  under  the  pro- 
\T.sions  of  this  section  ^vithout  their  consent. 
WTiile  so  detailed  they  shall  receive  acti^'e  pay 
and  allowances. ' ' 

Act  June3 ,1916, section56(39  Stat.  J97):"Such. 
arms,  tentage,  and  equipment  as  the  Secretary 
of  War  shall  deem  necessary  for  proper  military 
training  shall  be  supplied  by  the  Government 
to  schools  and  colleges,  other  than  those  pro- 
vided for  in  section  forty-seven  of  this  act, 
having  a  course  of  military  training  prescribed 
by  the  Secretaiy  of  War  and  having  not  less 
than  one  hundred  physically  fit  male  students 
above  the  age  of  fourteen  years,  imder  such 
rules  and  regulations  as  he  may  prescrilie;  and 
the  Secretary  of  War  is  hereby  authorized  to 
detail  such  commissioned  and  noncommissioned 
officers  of  the  Army  to  said  schools  and  colleges, 
other  than  those  pro\dded  for  in  sections  forty- 
five  and  forty-six  of  this  act,  detailing  not  less 
than  one  such  officer  or  noncommissioned 
officer  to  each  five  hundred  students  iinder 
military  instruction."  [Section  47  of  this  act 
provides  for  ' '  institutions  at  which  one  or  more 
units  of  the  Reserve  Officers'  Training  Corps 
are  maintained. ' '] 


437 


Sec.  1225. 


Pt.  2.  REVISED  STATUTES. 


The  Army. 


Act  September  17,  1919  (41  Stat.,  286):  "That 
no  officer  on  the  activ'e  list  [Army]  shall  be  de- 
tailed for  *  ■*  *  duty  at  schools  and  col- 
lejjes,  not  including;  schools  of  the  service, 
where  officers  on  the  retired  list  can  be  secured 
who  are  competent  for  such  duty."  (Similar 
provision  contained  in  act  June  4,  1920,  41 
Stat.,  777.) 


Generous  policy  in  respect  to  educa- 
tional institutions. — The  policy  of  the 
United  States  has  always  l)een  a  generous  one  in 
respect  to  educational  institutions.  Statutes 
have  been  enacted  appropriating  a  particular 
section  in  each  township  of  the  pul)lic  lands 
for  use  of  schools.  By  the  acts  of  July  30,  1890 
(26  Stat.,  417),  and  ]\rarch  4,  1907  (34  Stat., 
1281),  money  is  annually  appropriated  to  each 
State  and  Territory  for  the  more  complete  en- 
dowment and  maintenance  of  colleges  for  the 
benefit  of  agriculture  and  the  mechanical  arts 
now  established  or  which  may  be  hereafter 
established  in  accordance  ^vith  the  act  of  Julv 
2,  1862  (12  Stat.,  503).  Accordingly,  the  pro- 
visions of  section  1225,  Revised  Statutes,  should 
be  gi^'en  a  broad  interpretation.  (17  Comp. 
Dec.  691.  Mar.  22,  1911.) 

"Within  the  United  States,"  includes 
college  in  Porto  Rico. — The  words,  "upon 
the  application  of  an  established  college  or 
university  within  the  United  States."  as  used 
in  section  1225  of  the  Revised  Statutes,  were  not 
intended  to  restrict  the  benefits  of  said  statute 
to  colleges  or  universities  "within  the  United 
States,"  in  the  sense  of  the  States  united,  but 
were  used  in  a  l^roader  sense  and  embrace  the 
organized  contiguous  Territories;  and  the  act 
of  April  12,  1900  (31  Stat.,  79),  authorizes  the 
extension  of  the  lienefits  of  section  1225  as 
amended  to  Porto  Rico.  (17  Comp.  Dec,  691, 
Mar.  22,  1911.) 

"An  officer  of  the  Army  or  Navy"  in- 
cludes a  retired  officer. — T\Tien  the  law 
speaks  of  "officers  of  the  Army,"  ^^athout  any 
qualifjang  words,  it  includes  officers  on  the  re- 
tired list  as  well  as  those  on  the  active  list. 
Section  1225,  as  amended  by  the  act  of  Septem- 
ber 26,  1888,  authorizes  the  President  to  detail 
officers  of  the  Army  (without  qualif\dng  words) 
for  duty  at  educational  institutions;  retu-ed 
officers  are  included  in  this  authorization.  (6 
Comp.  Dec,  120,  Aug.  15,  1899.) 

Until  the  pa-ssage  of  the  act  of  November  3, 
1893,  there  was  no  authority  of  law  for  the  detail 
of  retired  officers  to  such  duty  with  the  full  pay 
of  their  rank,  details  of  this  kind  being  limitei 
to  officers  on  the  active  list.  "I  can  not  be- 
lieve that  a  duty  to  which  for  many  years  only 
officers  on  the  active  list  were  permitted  to  be 
assigned  is  not  active  duty  or  ceases  to  be  such 
when  retired  officers  are  permitted  on  their  own 
application  to  undertake  it."  (U  Comp.  Dec, 
698,  May  18,  1905.  As  to  pay  cf  retired  officers 
detailed  to  colleges,  see  cases  noted  below.) 

It  will  be  noted  that  section  1225,  Revised 
Statutes,  as  amended  bv  the  act  of  September  26, 
1888  (25  Stat.,  491),  refers  to  the  detail  of  officers 
"of  the  Army,"  butit  was  never  held  to  apply  to 
retired  officers  until  amended  by  the  act  of  No- 
vember 3,  1893  (28  Stat.,  7),  so  as  to  pro^■ide 
that  "officers  on  the  retired  list  of  the  Army 


may  upon  their  own  application  be  detailed  to 
isuch  duty,  and  when  so  detailed  .shall  receive 
the  full  pay  of  their  rank."  This  appears  to 
have  been  the  first  law  authorizing  the  payment 
of  full  pay  to  retired  officers  on  duty  at  educa- 
tional institutions,  and  it  would  not  apply  to  or 
affect  details  under  section  1260,  Revised 
Statutes,  or  the  act  of  May  4,  1880.  (23  Comp. 
Dec,  500.) 

The  act  of  November  3, 1893,  was  amended  by 
the  act  of  March  3,  1909.  The  next  legislation 
on  this  subject  was  the  act  of  June  3,  1916. 
PYom  an  examination  of  the  various  laws  rela- 
tive to  the  detail  of  officers  to  educational  in- 
stitutions, it  appears  to  have  been  the  uniform 
practice  of  Congress  whenever  it  intended  to 
provide  for  the  detail  of  retired  officers  to  desig- 
nate them  specifically  and  also  to  stipulate  as 
to  the  pay  they  should  receive.  Section  56  of 
the  act  of  1916  makes  no  specific  reference  to 
retired  officers  or  to  pay,  and  Congress  did  not 
intend  by  said  section  to  grant  any  new 
authority  for  the  detail  of  retired  officers  to 
educational  institutions.  Accordingly,  held, 
that  the  term  "commissioned  and  noncommis- 
sioned officers  of  the  Armv,"  as  used  in  section 
56,  act  of  June  3,  1916  (39  Stat.,  197),  does  not 
include  retired  officers,  although  in  its  broad 
sense  the  Army  of  the  United  States  does  in- 
clude officers  and  enlisted  men  on  the  retired 
list.     (23  Comp.  Dec,  500.) 

For  other  cases,  see  note  to  section  1457,  Re- 
vised Statutes. 

Limitation  upon  number  of  officers  de- 
tailed applies  both  to  active  and  retired 
List. — The  act  of  November  3,  1893,  authorizes 
the  detail  of  100  officers  from  the  active  list 
of  the  Army,  but  does  not  require  it.  Said 
act  leaves  it  within  the  discretion  of  the  Presi- 
dent to  make  the  detail  of  officers  of  the  Army 
for  colleges  wholly  from  the  active  list  of  the 
Army,  or  wholly  from  retired  officers,  who, 
"upon  their  own  application,"  may  be  detailed 
for  those  ser\-ices,  or  from  both  lists,  in  such 
proportion  as  he  sees  fit  and  as  the  applications 
for  such  detail  from  the  retired  officers  will 
allow.  No  other  limit  than  100  is  set  to  the 
number  of  such  officers  that  can  be  detailed 
and  these  may  be  taken  by  the  President  from 
either  the  active  or  retired  list  of  the  Armv,  or 
both.     (20  Op.  Atty.  Gen.,  687,  Dec.  8,  1893.) 

Restrictions  as  to  length  of  service  in 
Army  and  period  of  detail  apply  both  to 
active  and  retired  lists. — The  ' '  five  years'  ser- 
vice in  the  Army,"  as  well  as  the  limit  of  detail 
to  four  years,  applies  to  officers  detailed  from 
the  retired  as  well  as  from  the  active  list.  (20 
Op.  Atty.  Gen.,  687,  Dec  8,  1893.) 

Number  of  active  and  retired  officers 
detailed  must  be  apportioned. — By  section 
1225,  Revised  Statutes,  and  the  acts  of  Sep- 
tember 26, 1888,  November  3, 1893,  and  March  3, 
1909,  the  President  may,  upon  the  application 
of  any  established  military  institute,  seminary 
or  academy,  college  or  university,  withn  the 
United  States,  ha\ing  a  certain  capacity,  detail 
an  officer  of  the  Army  on  the  active  or  retired  list 
to  act  as  superintendent,  or  professor  thereof, 
but  such  officers  so  detailed  shall  be  apportioned 
throughout  the  United  States,  first,  to  those  State 
institutions  applying  for  such  detail  that  are  re- 
quired to  provide  instruction  in  military  tac- 


438 


The  Army. 


Pt.2.  REVISED  STATUTES. 


Sec.  1225, 


tica  under  the  provisions  of  the  act  of  Congress 
of  July  2,  1862  (12  Stat.,  503),  donating  lands 
for  the  establishment  of  colleges,  etc.,  and  after 
that  said  details  to  be  distributed  as  nearly  as 
may  be  practicable  according  to  population, 
etc.     (17  Comp.  Dec,  691,  Mar.  22,  1911.) 

Officer  bound  to  obey  order  to  act  as 
professor. — \\Tiere  an  officer  of  the  Army  is 
detailed  by  peremptory  order  to  act  as  professor 
in  a  college,  under  the  act  of  July  28,  1866  (14 
Stat.,  336,  sec  26),  [embodied  in  section  1225, 
Revised  Statutes],  the  order  so  detailing  him 
is  one  which  he  is  bound  to  obev.  (Long  v. 
U.  S.,  8  Ct.  Cls.,  398,  Dec.  Term,  1872.) 

Ser\dce  as  an  instructor  in  an  institution  of 
learning,  under  a  detail  pursuant  to  section  1225, 
Revised  Statutes,  as  amended,  is  active  service 
to  which  a  retired  naval  officer  may  be  ordered 
in  time  of  war;  but  to  which  he  could  not  be  as- 
signed, -without  his  consent,  in  time  of  peace. 
The  act  of  INIarch  2,  1895,  applies  to  cases  where 
retired  officers  desire  to  engage  as  instructors 
on  their  own  account  in  purely  private  institu- 
tions where  military  tactics  are  not  taught, 
and  to  which  Government  officers  could  not 
therefore  be  assigned  for  duty  as  such;  and  said 
act  has  no  reference  to  the  case  where  an  officer 
might  lawfully  be  ordered  to  perform  such 
ser\ice  "without  his  consent.  A  similar  provi- 
sion to  the  act  of  March  2,  1895,  is  found  in 
section  1260,  Revised  Statutes,  with  regard  to 
retired  officers  of  the  Army,  and  Congress  has 
made  a  distinction  between  employment  under 
that  section  and  under  section  1225.  See  act  of 
August  6,  1894.  (5  Comp.  Dec,  326,  Dec.  19, 
1898.  When  this  decision  was  rendered,  retired 
officers  of  the  Navy  and  Marine  Corps  could  not 
be  employed  on  active  duty  except  in  time  of 
war.     See  note  to  sec.  1462,  R.  S.) 

The  act  of  August  6,  1894,  leaves  it  in  the 
power  of  the  President  to  detail  retired  officers 
of  the  Army,  under  the  act  of  May  4,  1880,  upon 
application  by  the  institutions;  that  is,  to  make 
compulsory  details.  (6  Comp.  Dec,  120,  Aug. 
15,  1899.) 

Retired  officer  may  be  allowed  addi- 
tional compensation  by  college. — Section 
1260,  Revised  Statutes,  refers  to  additional 
compensation  from  the  United  States,  not  from 
the  colleges.  That  this  does  not  refer  to  any 
additional  compensation  from  the  college,  but 
from  the  United  States,  is  evident  from  the  lan- 
guage employed,  which  does  not  prohibit  the  re- 
ceiving, but  the  allowing  of  additional  compen- 
sation.    (20  Op.  Atty.  Gen.,  687,  Dec.  8,  1893.) 

Pay  of  retired  officers. — A  retired  officer 
of  the  Navy  who,  in  time  of  war,  is  detailed  to 
act  as  superintendent  or  professor  at  any  edu- 
cational institution,  as  provided  by  section 
1225,  Revised  Statutes,  and  the  act  of  Septem- 
ber 26,  1888  (25  Stat.,  491),  is  engaged  in  active 
service  and  entitled  to  active-duty  pay,  under 
section  1592,  Revised  Statutes,  dmiiig  the  con- 
tinuance of  the  war.  (5  Comp.  Dec,  326, 
Dec.  19,  1898.) 

Officers  of  the  Army  on  the  retired  lisi;  who, 
upon  their  own  application,  are  detailed  to 
educational  institutions  in  accordance  with 
the  provisions  of  the  act  of  November  3,  1893 
[as  part  of  the  limited  num):)er  of  officers  author- 
ized to  be  detailed  by  said  act],  are  entitled 


to  the  full  pay  of  their  rank.  (6  Comp.  Dec, 
120,  Aug.  15,  1899.) 

When,  under  the  act  of  November  3,  1893,  a 
retired  Army  officer  is  detailed  as  a  professor  of 
military  science  and  tactics  at  a  university 
located  in  the  Island  of  Porto  Rico,  such  officer 
is  entitled  while  so  detailed  to  the  full  pay  of 
his  rank.     (17  Comp.  Dec,  691,  Mar.  22,  1911.) 

Officers  of  the  retired  list  detailed  for  college 
duties  prior  to  November  3,  1893,  and  still  on 
duty  under  such  detail,  are  entitled  to  full  pay 
only  from  the  passage  of  the  act  of  that  date, 
under  and  by  virtue  of  which  alone  is  their 
right  to  full  pay  derived.  (20  Op.  Atty.  Gen., 
687,  Dec.  8,  1893.) 

Undersectionl225,  as  amended  byact  of  Sep- 
tember 26,  1888,  which  says  nothing  about  pay, 
retired  officers,  if  so  detailed,  would  be  placed 
on  duty  and  would  thereby  ordinarily  become 
entitled  to  the  full  pay  of  their  grades  (citing 
Long  V.  U.  S.,  8  Ct.  Cls.,  403,  holding  that  "a 
retired  officer  when  called  into  service  and 
assigned  to  duty  is  entitled  to  receive  the  full 
pay  and  the  emoluments  of  his  rank  ").  This 
view  would,  however,  be  subject  to  modifica- 
tion in  case  some  statute  should  require  it.  The 
act  of  May  4, 1880,  provides  that  a  retired  officer 
' '  may  receive  from  the  institution  to  which  he 
may  be  detailed  the  difference  between  his 
retired  and  full  pay,  and  shall  not  receive  any 
additional  pay  or  allowance  from  the  United 
States. ' '  As  the  law  stood  after  the  act  of  May 
4,  1880,  retired  officers  detailed  to  educational 
institutions  could  not  receive  full  pay  of  their 
grade  from  the  United  States,  and  it  would  not 
be  material  whether  the  detail  was  compulsory 
or  made  upon  application  of  the  officers.  (See 
also  sec.  1260,  R.  S.)  The  act  of  November  3, 
1893,  amended  section  1225  and  entitled  retired 
officers  to  receive  the  full  pay  of  their  rank, 
provided  the  detail  is  not  compulsory,  but  is 
made  upon  the  application  of  said  retired  offi- 
cers. The  act  of  August  6,  1894,  does  not 
attempt  to  repeal  or  modify  the  act  of  1893  in 
so  far  as  said  act  of  1893  authorizes  full  pay  for 
retired  officers  when  they  are  detailed  "upon 
their  own  appUcation' '  in  making  up  the  maxi- 
mum of  100  ofhcers,  both  active  and  retired, 
authorized  by  the  act.  The  act  of  1894  still 
leaves  it  in  the  power  of  the  President  to  detail 
retired  officers  under  the  act  of  1880,  upon  appU- 
cation by  the  institutions  (or  compulsory  de- 
tails), and  under  section  1260,  Revised  Statutes, 
upon  apphcation  of  said  retired  officers,  but 
when  so  detailed  under  the  act  of  1880  or  sec- 
tion 1260  the  officers  will  not  be  entitled  to  any 
pay  or  allowance  from  the  United  States  beyond 
their  pay  as  retired  officers.  It  is  difficult  to 
understand  why  officers  detailed  upon  their  own 
application  under  the  act  of  1893  should  be 
given  full  pay,  and  denied  it  when  detailed 
upon  their  own  appUcation  vmder  section  1260; 
or  why  denied, it  when  compulsorily  detailed 
under  the  act  of  1880  and  other  acts;  but  such 
must  be  the  construction  of  the  law  as  it  is. 
(6  Comp.  Dec,  120,  Aug.  15,  1899.) 

It  will  be  observed  that  retired  officers 
detailed  to  educational  institutions  under  the 
acts  of  May  4,  1880  (21  Stat.,  113),  and  May  21, 
1904  (33  Stat.,  225),  receive  only  their  retired 
pay  and  such  additional  compensation  or  allow- 


439 


Sec.  1225. 


Pt.  2.  REVISED  STATUTES. 


The  Army. 


ances  as  may  be  paid  by  the  institution  to 
which  cK>lail(Hl.     (2S  C'omp.  Doc.  500.) 

Pay  of  retired  Army  officers  governed 
by  general  laws  relating  to  active  duty. — 
A  retired  oliicer  of  the  Army  with  the  rank  of 
colonel  who  was  detailed  under  the  act  of 
November  3,  1S93,  for  duty  at  an  educational 
institution,  was  while  so  detailed  "assigned  to 
active  duty"  within  the  meaning:  of  the  act  of 
March  2,  1905  (33  Stat.,  831),  and  therefore, 
under  the  pro\'ision8  of  said  act,  he  was  only 
entitled  while  so  detailed  to  the  full  pay  and 
allowances  of  a  major  on  the  active  list.  (11 
Comp.  Dec,  698,  May  18,  1905.) 

The  act  of  March  2, 1905  (33  Stat.,  831),  refers 
to  the  pay  of  retired  odicers  of  the  Army  when 
"assigned  "to  active  duty;  the  term  "  assigned  " 
includes  "detailed,"  as  a  detail  is  only  one 
method  of  assignment ;  the  act  of  March  2. 1905, 
therefore  applies  to  retired  officers  detailed  to 
duty  at  educational  institutions,  as  such  duty 
is  to  be  regarded  as  "active  duty,"  and  officers 
so  assigned  to  active  duty  are  entitled  only  to 
the  rates  of  pay  authorized  by  that  act.  (11 
Comp.  Dec.,  098,  May  18,  1905.) 

An  officer  of  the  Army  on  the  retired  Ust 
detailed  to  duty  at  an  ediicational  institution 
under  the  act  of  November  3,  1893,  who  was 
advanced  from  the  rank  of  major  to  the  rank  of 
Ueutenant  colonel,  under  the  act  of  April  23, 
1904  (33  Stat.,  264),  on  account  of  civil-war 
servace,  should  be  regarded  for  pay  purposes  as 
a  Ueutenant  colonel,  and  under  the  act  of  ^larch 
2, 1905  (33  Stat.,  831),  he  is,  while  on  such  duty, 
entitled  to  receive  the  full  pay  and  allowance 
of  a  major  on  the  active  List.  (16  Comp.  Dec, 
716,  May  13,  1910.) 

Pay  of  retired  Navy  officers  not  gov- 
erned by  general  laws  relating  to  active 
duty. — A  retired  officer  of  the  Navy  detailed 
to  service  under  the  act  of  March  2,  1895,  dur- 
ing tlie  period  February  7,  1903,  to  September 
30,  1903,  is  not  entitled  to  active-duty  pay  and 
commutation  of  quarters.  (Comp.  Dec,  July 
18,  1905,  53  S.  and  A.  Memo.,  572.) 

The  act  of  June  7,  1900  (31  Stat.,  703),  which 
authorized  the  detail  of  any  retired  naval  of- 
ficer to  active  duty  (during  a  period  of  twelve 
years  from  its  date),  with  "the  pay  and  allow- 
ances of  an  officer  of  the  active  list  of  the  grade 
from  wliich  he  was  retired,"  did  not  apply  so 
as  to  entitle  the  officer  to  active-duty  pay  dur- 
ing his  detail  to  active  duty  under  the  act  of 
March  2,  1895.  (Comp.  Dec,  July  18,  1905, 
53  S.  and  A.  Memo.,  572.) 

The  act  of  March  2,  1895,  is  a  special  statute, 
while  the  later  one  of  June  7, 1900,  was  general, 
and  under  establi.«lied  rules  a  subsequent  act 
treating  a  subject  in  general  terms  and  not  ex- 
pressly contradicting  the  provisions  of  a  prior 
special  statute  is  not  to  be  considered  as  in- 
tended to  affect  the  more  particular  and  specific 
{)ro\dsions  of  the  earlier  act,  unless  it  is  abso- 
utely  necessary  so  to  construe  it  in  order  to 
give  its  words  any  meaning  at  all.  As  the  act 
of  March  2,  1895,  under  which  this  officer  was 
detailed,  provides  that  while  so  detailed  he 
shall  be  allowed  no  additional  pay,  he  is  not 
entitled  to  active-duty  pay  and  commutation 
of  quarters.  (Comp.  Dec,  July  18,  1905,  53 
S.  and  A.  Memo.,  572.) 


As  to  interpretation  of  act  of  March  2,  1895, 
see  5  Comp.  Dec,  326,  noted  above,  under 
"Officer  bound  to  obey  order  to  act  as  pro- 
fessor." 

Commutation  of  quarters. — Under  the 
provision  of  the  act  of  November  3,  1893,  that 
retired  ofiicers  of  the  Army  detailed  at  educa- 
tional institutions  "shall  receive  the  full  pay 
of  their  rank,"  but  which  does  not  include 
allowances,  such  officers  so  detailed  are  not 
entitled  to  commutation  of  quarters.  (6 
Comp.  Dec,  506,  Nov.  23,  1899;  Spencer  v. 
U.  S.,  41  Ct.  Cls.,  430.) 

The  act  of  May  4,  1880,  prohibits  both  pay 
and  allowances,  while  the  act  of  November  3, 
1893,  merely  removes  the  restriction  as  to  pay, 
but  says  nothing  about  allowances.  This  omis- 
sion is  significant  and  controlling  in  the  con- 
struction of  the  act  of  1893.  The  general  rule 
in  military  matters  is  that  where  the  word  pay 
is  used  alone,  it  does  not  include  allowances. 
(6  Comp.  Dec,  506,  Nov.  23,  1899.) 

^^^lere  an  officer  of  the  Army  is  detailed  by 
peremptory  order  to  act  as  professor  in  a  college 
under  the  act  of  July  28,  1866  (14  Stat.,  336, 
sec  26)  [embodied  in  section  1225,  Revised 
Statutes],  he  is  entitled  to  fuel  and  quarters  or 
commutation  therefor,  and  his  right  to  com- 
mutation is  not  affected  by  the  fact  that  his 
detail  was  procured  by  the  president  of  the 
college  with  his  cooperation.  In  such  a  case, 
if  there  be  no  quarters  at  the  place,  it  will  be 
a  station  without  troops  within  the  meaning  of 
the  Army  Regulations ,  and  he  need  not  make 
reqmsition  for  quarters.  (Long  i'.  U.  S.,  8  Ct. 
Cls.,  398,  Dec.  Term,  1872.) 

An  officer  relieved  from  duty  at  a  station 
where  he  had  quarters  in  kind,  and  ordered  to 
report  in  person  for  duty  at  a  college  during 
vacation,  is  not  entitled  to  commutation  of 
quarters  prior  to  the  date  on  which  he  reports 
in  person  at  the  college.  A  report  by  letter 
does  not  have  the  effect  of  placing  him  on  duty 
at  the  college  in  such  a  sense  as  to  entitle  him 
to  commutation  of  quarters  at  that  station.  (4 
Comp.  Dec,  254;  Nov.  26,  1897.) 

Medical  attendance. — A  retired  officer  of 
the  Army  wlio  is  detailed  as  a  professor  at  an 
educational  institution  is  not  entitled  to  reim- 
bursement for  expenditures  for  medicines  or 
for  medical  attendance.  (7  Comp.  Dec,  89, 
Aug.  14,  1900.) 

It  seems  clear  that  medicines  and  medical 
attendance  can  not  be  considered  as  part  of  the 
pay  of  an  officer,  and  they  must  therefore  be 
regarded  as  in  the  nature  of  an  allowance,  which 
is  not  authorized  to  be  given  to  a  retired  officer 
detailed  vuider  the  act  of  November  3,  1893. 
(7  Comp.  Dec,  89,  Aug.  14,  1900.) 

A  retired  colonel  or  Jievitenant  colonel  of  the 
Army,  detailed  under  the  act  of  November  3, 
1893,  to  duty  at  an  educational  institution, 
being  entitled  under  the  provisions  of  the  act 
of  March  2  1905  (33  Stat.,  831),  to  the  full  pay 
and  allowances  of  a  major  on  the  active  list,  is 
entitled  to  such  medical  attendance  and  medi- 
cines at  the  expense  of  the  United  States  as 
are  authorized  for  a  major  on  the  active  list; 
but  under  the  provisions  of  said  act  of  March  2, 
1905,  a  retired  officer  above  the  rank  of  colonel 
is  not  entitled  while  so  detailed  to  said  allow- 
ances.    (11  Comp.  Dec,  758,  June  14,  1905.) 


440 


The  Army. 


Ft.  2.  REVISED  STATUTES. 


Sec.   1229. 


Mounted  pay. — Cavalry  and  Field  Artillery 
oflicers  on  the  active  list  of  the  Army  below  the 
grade  of  major,  who  are  detailed  at  educational 
institutions,  are  required  to  be  mounted  during 
such  detail  within  the  meaning  of  the  act  of 
May  11,  1908  (35  Stat.,  108),  and  if  they  provide 
8uital)le  mount  or  mounts  at  their  own  expense 
they  are  entitled  to  the  addition  to  their  pay  on 
that  account  and  to  the  allowances  for  mounts 
as  authorized  by  law.  (16  Comp.  Dec,  638, 
Mar.  31,  1910.) 

Detail  of  retired  Marine  officer. — The  act 
of  March  2,  1895  (above  quoted)  does  not 
appear  to  have  been  affected  by  any  subse- 
quent legislation  in  so  far  as  officers  of  the 
Marine  Corps  are  concerned.  The  Navy  De- 
partment is  therefore  of  opinion  that  a  retired 
Marine  officer  is  eligible  under  that  act  to 
detail  to  service  as  a  teacher  or  professor  in  any 
school  or  college.  (File  9736-22,  Aug.  12, 
1911.) 

There  appears  to  have  been  no  change  in  the 
act  of  March  2,  1895,  so  far  as  retired  officers  of 
the  Marine  Corps  are  concerned.  As  specific 
authority  thus  exists  for  the  detail  of  the  retired 
Marine  officer  concerned,  it  is  unnecessary  to 
pass  upon  the  question  whether  said  officer 
may  properly  be  considered  an  officer  of  the 
Navy  within  the  intent  of  the  act  of  April  21, 
1904  (above  quoted).  The  act  of  March  2,  1895, 
as  construed  by  the  Attorney  General,  does  not 


prohibit  additional  compensation  from  the 
college,  but  from  the  United  States.  (File 
11112-649,  Sept.  8,  1916.) 

Detail  of  petty  officer  in  the  Navy. — 
There  is  no  statutory  authority  for  detailing  a 
petty  officer  on  the  active  list  to  an  educational 
institution  as  instructor  therein.  However,  the 
act  of  April  21,  1904  (above  quoted),  includes 
retired  petty  officers  in  the  Navy  by  the  phrase 
"  retired  officers  and  noncommissioned  officers  of 
the  Army  and  Navy. "  It  follows  that  a  retired 
petty  officer  of  the  Navy  may  be  detailed  as 
instructor  in  an  educational  institution,  and 
while  so  detailed  such  institution  is,  under  the 
terms  of  the  act  cited,  reqiured  to  pay  him 
commutation  of  quarters.  Further,  the  pro- 
hibition in  said  act  against  payment  of  compen- 
sation from  the  Government,  other  than  retired 
pay,  to  the  ''noncommissioned"  officers  so 
detailed,  does  not  prohibit  the  acceptance  by 
such  noncommissioned  or  petty  officers  of  addi- 
tional compensation  from  the  institution  to 
which  detailed.  It  should  be  noted  that  sec- 
tion 1225,  Revised  Statutes,  as  amended,  limits 
the  details  in  question  to  colleges  or  umversities 
having  capacity  to  educate  at  the  same  time 
"not  less  than  150  male  students,"  and  pre- 
vents details  thereunder  of  retired  noncommis- 
sioned or  petty  officers  unless  they  "are  willing 
to  accept  such  position."  (File  7657-361,  Ma> 
6,  1916.) 


Sec.  1229.  [Dismissal  of  officers  in  military  or  naval  service.]  The  Presi- 
dent is  authorized  to  drop  from  the  rolls  of  the  Army  for  desertion  any 
officer  who  is  absent  from  duty  tliree  months  without  leave ;  and  no  officer  so 
dropped  shall  be  eligible  for  re-appointment.  And  no  officer  in  the  military, 
or  naval  service  shall  in  time  of  peace  be  dismissed  from  service  except 
upon  and  in  pursuance  of  the  sentence  of  a  court-martial  to  that  effect,  or  in 
commutation  thereof. — (Art.  of  war,  99;  art.  of  war,  106;  15  July,  1870,  c.  294, 
s.  17,  V.  16,  p.  319;  13  July,  1866,  c.  176,  s.  5,  v.  14,  p.  92.) 


By  act  of  April  2,  1918  (40  Stat.,  501),  the 
President  was  authorized  "to  drop  from 
the  rolls  of  the  Navy  or  Marine  Corps  any 
officer  thereof  who  is  absent  from  duty 
without  leave  for  a  period  of  three  months 
or  more,  or  who,  having  been  found  guilty 
by  the  civil  authorities  of  any  offense,  is 
finally  sentenced  to  confinement  in  a  State 
or  Federal  penitentiary :  Provided,  That  no 
officer  so  dropped  shall  be  eligible  for 
reappointment." 

Dismissals  from  the  naval  service  are  further 
provided  for  by  section  1624,  Revised 
Statutes,  article  36. 

Dismissals  from  the  Army  are  further  provided 
for  by  section  1342,  Revised  Statutes,  article 
118,  as  amended  by  act  of  August  29,  1916 
(39  Stat.,  669). 

Dropping  an  officer  from  the  rolls  of  the  Army 
is  authorized,  where  he  has  been  absent 
in  confinement  in  a  prison  or  penitentiary 
for  more  than  three  months  after  final  con- 
viction by  a  civil  court  of  competent 
jurisdiction.  (See  act  Jan.  19,  1911,  36 
Stat.,  894;  and  art.  118,  sec.  1342,  R.  S.,  as 
amended  by  act  Aug.  29,  1916  (39  Stat., 
669.) 


Historical  note. — As  recommended  to  Con- 
gress by  the  Commission  to  Revise  the  Laws 
(1872),  this  section  read  as  follows:  "The  Presi- 
dent is  authorized  to  drop  from  the  rolls  of  the 
Army  for  desertion  any  officer  who  is  absent 
from  duty  three  months  without  leave;  and  no 
officer  so  dropped  shall  [be  eligible  for  re-ap- 
pointment] ever  be  restored  to  the  m  ilitary  service, 
except  by  a  re-appointment  confirmed  by  theSenate. 
But  such  dismissal  shall  be  subject  to  the  provi- 
sions of  the  next  section."  The  "next  section" 
contained  provisions  similar  to  those  of  article 
37  of  the  Articles  for  the  Government  of  the 
Navy.  (Sec.  1624,  R.  S.)  In  the  notes  to  the 
proposed  section  (Commrs.  Draft,  R.  S.,  pp.  610, 
611),  it  was  stated: 

"The  act  of  3  March,  1865,  ch.  79,  §12,  vol. 
13,  p.  489,  provides:  'That  in  case  any  officer 
of  the  military  or  naval  service  who  may  be 
hereafter  dismissed  by  authority  of  the  Presi- 
dent shall  make  an  application  in  writing  for 
a  trial,  setting  forth  under  oath  that  he  has 
been  wrongfully  and  unjustly  dismissed,  the 
President  shall,  as  soon  as  the  necessities  of 
the  public  service  may  permit,  convene  a 
court-martial  to  try  such  officer  on  the  charges 
on  which  he  was  dismissed.     And  if  such  court- 


441 


Sec.  1342. 


Pt.2.  REVISED  STATUTES. 


The  Army. 


martial  shall  not  award  dismi'sal  or  death  as 
the  punLshraent  of  such  olticer,  the  order  of 
dismissal  shall  be  void.  And  if  the  court- 
martial  aforesaid  shall  not  be  convene<l  for  the 
trial  of  such  oHicor  within  six  months  from  the 
presentation  of  his  application  for  trial,  the  sen- 
tence of  dismissal  sliall  be  void.' 

"Section  17  of  act  15  July,  1870,  ch.  294,  vol. 
16,  p.  319,  provides  for  dropping  an  officer 
'from  the  rolls,'  but  as  it  declares  him  there- 
after ineligible  'for  re-appointment,'  it  appears 
that  this  process  of  dropping  is  absolute  dis- 
missal. Taken  by  itself  the  later  provision 
seems  to  imply  that  the  action  of  the  r  resident 
is  conclusive;  but  it  is  assumed  by  this  com- 
mission that  it  can  not  be  construed  separately 
from  the  existing  general  provision  as  to  all 
dismissals  by  the  President.  The  last  clause 
of  the  section  in  the  text  is  not  inserted  as  a 
new  suggestion,  therefore,  but  as  the  necessary 
construction  of  the  provision. 

"  It  is  to  be  observed  that  the  act  of  20  July, 
1868,  ch.  185,  vol.  15,  p.  125,  provides  that 
officers  cashiered  by  sentence  of  court-martial 
shall  not  be  restored  to  the  military  service 
except  by  re-appointment  confirmed  by  the 
Senate,  while  the  act  of  15  July,  1870,  cuts  off 
such  re-appointment.  The  earlier  act  treats 
the  appointing  and  confirming  power  as  a  trust- 
worthy authority  to  review  all  the  circumstances 


of  a  dismissal  by  court-martial,  as  well  as  to 
consider  the  subsequent  history  of  the  con- 
victed person.  Cases  might  very  well  occur  in 
which  a  j^rolonged  absence  without  leave  could 
be  explained,  but  after  a  certain  tune  the 
party  would  be  without  remedy.  It  seems 
probable  that  no  distinction  in  this  respect 
between  the  cases  of  dismissal  by  court-marlial 
and  cases  of  dismissal  by  the  President  was 
intended.  The  words  in  italics  are  inserted  for 
the  purpose  of  placing  them  on  the  same  foot- 
ing." 

However,  the  recommendations  of  the  com- 
missioners were  not  accepted  by  Congress, 
which  enacted  this  provision  in  the  Revised 
Statutes  as  section  1229,  in  the  language  given 
above.  (As  to  the  effect  of  pardon  with  refer- 
ence to  the  reappointment  of  dismissed  olficers 
to  the  Navy,  see  note  to  section  1441,  Revised 
Statutes;  as  to  distinction  between  various 
methods  by  which  the  service  of  officers  may  be 
terminated  without  theii*  consent,  see  note  to 
section  1454,  Revised  Statutes,  under  "Mean- 
ing of  'wholly  retii-ed,'"  and  note  to  section 
1456,  Revised  Statutes,  under  "Character  of 
discharge  issued  under  act  of  1882.") 

See  note  to  Constitution,  Art.  II,  sec- 
tion 2,  clause  2,  under  "  VIII.  Power  of  Re- 
moval." and  section  1624,  Revised  Statutes, 
article  36. 


Sec.  1342.  [Articles  of  War.     Repealed.] 


This  section  of  the  Revised  Statutes,  which 
contained  the  Articles  of  War,  and  statutes 
amendatory  thereof,  were  repealed  by  act  ap- 
proved Jime  4, 1920  (41  Stat.,  812),  which  same 
act  contained  new  articles  of  war  (id.,  pp.  787- 
812).  However,  article  2  of  the  original  sec- 
tion 1342,  which  prescribed  the  oath  of  alle- 
giance to  betaken  by  enlisted  men,  is  continued 
in  force  for  enlisted  men  of  the  Navy  by  act  of 
March  3,  1899,  sec.  25,  noted  under  section 
1418,  Revised  Statutes. 

The  Navy  is  governed  by  the  articles 
embodied  in  section  1624  of  the  Re\T.sed 
Statutes,  known  as  the  "Articles  for  the 
Government  of  the  Navy." 

The  Marine  Corps  is  govei'ned  by  "the 
laws  and  regulations  established  for  the  govern- 
ment of  the  Navy,"  except  when  detached  for 
service  with  the  Army  by  order  of  the  President; 
and  when  so  detached  it  is  subject  to  the  rules 
and  articles  of  war  prescribed  for  the  govern- 
ment of  the  Army.  (See  sec.  1621,  R.  S.;  and 
art.  2  (c\  quoted' below.) 

*  'Officers  and  enhsted  men  of  the  Medical 
Department  of  the  Navy,  serving  with  a 
body  of  marines  detached  for  service  with  the 
Army  in  accordance  with  the  provisions  of  sec- 
tion sixteen  hundred  and  twenty-one  of  the 
Revised  Statutes,  shall,  while  so  serving,  be 
subject  to  the  rules  and  articles  of  war  pre- 
scribed for  the  government  of  the  Army  in  the 
same  manner  as  the  officers  and  men  of  the 
Marine  Corps  while  so  serving."  (Act  Aug.  29, 
1916,  39  Stat.,  573.) 

Article  2  of  the  Articles  of  War  (June  4, 
1920)  reads  as  follows: 

"Art.  2.  Persons  subject  to  military 
LAW. — The  following  persons  are  subject  to 
these  articles  and  shall  be  understood  as  in- 


cluded in  the  term  'any  person  subject  to 
military  law,'  or  'persons  subject  to  military 
law,'  w^henever  used  in  these  articles:  Pro- 
vided, That  nothing  contained  in  this  Act,  ex- 
cept as  specifically  provided  in  Article  two, 
subparagi'aph  (r),  shall  be  construed  to  apply 
to  any  person  under  the  United  States  naval 
jurisdiction  unless  otherwise  specifically  pro- 
vided by  law. 

<«*  *  -x-  ^(.)  Officers  and  soldiers  of  the 
Marine  Corps  when  detached  for  service  with 
the  Armies  of  the  United  States  by  order  of  the 
President:  Provided,  That  an  officer  or  soldier 
of  the  Marine  Corps  when  so  detached  may  be 
tried  by  military  court-martial  for  an  offense 
committed  against  the  laws  for  the  government 
of  the  naval  service  prior  to  his  detachment, 
and  for  an  offense  committed  against  these  ar- 
ticles he  may  be  tried  by  a  naval  court-martial 
after  such  detachment  ceases    *    *    *." 

As  to  persons  i  n  the  Navy  and  Marine  Corps 
subject  to  the  Articles  of  War,  see  notes  above, 
under  this  section,  and  see  notes  to  section  1621, 
Revised  Statutes. 

The  only  case  in  which  it  is  "otherwise  speci- 
fically provided  by  law"  that  any  person  un- 
der the  United  States  naval  jurisdiction  shall 
be  subject  to  the  Articles  of  War  is  that  set 
forth  in  the  act  of  August  29,  1916  (39  Stat., 
573,  quoted  above  under  this  section),  relating 
to  members  of  the  Medical  Department  of  the 
Navy  serving  with  a  body  of  marines  de- 
tached for  service  with  the  Army.  By  sec- 
tion 6  of  this  act  of  August  29,  1916,  "All laws 
and  parts  of  laws  in  so  far  as  they  are  inconsist- 
ent with  this  act  are  hereby  repealed."  Ac- 
cordingly held,  that  a  fireman  second  class  in 
the  Navy  was  not  subject  to  the  jurisdiction 
of  an  Army  court-martial  for  absence  without 


442 


The  Army. 


Pi.  2.  REVISED  STATUTES. 


Sec.  1342. 


leave  from  U.  S.  Army  Base  Hospital  No.  6, 
A.  E.  F.,  and  that  the  sentence  of  an  Army 
summary  comt-martial  purporting  to  require 
forfeiture  of  pay  in  his  case  was  null  and  void 
and  should  be  disregarded  and  ignored  by  the 
naval  authorities.  (File  26287-5459,  Feb.  28, 
1919.) 

Men  enlisted  in  the  Army  may  on  their  own 
application  be  transferred  to  the  Navy  or 
ilarine  Corps,  but  such  transfer  shall  not  re- 
lease them  ' '  from  any  penalty  incurred  for  a 
breach  of  military  law."     (Sec.  1421,  R.  S.) 

Article  4  of  the  Articles  of  War  (June  4, 
1920)  reads  as  follows: 

"Art.  4.  Who  may  serve  on  courts-mar- 
tial.— All  officers  in  the  military  service  of 
the  United  States,  and  officers  of  the  Marine 
Corps  when  detached  for  service  with  the  Army 
by  order  of  the  President,  shall  be  competent 
to  serve  on  courts-martial  for  the  trial  of  any 
persons  who  may  lawfully  be  brought  before 
such  courts  for  trial.     *    *    *    " 

It  was  originally  provided  by  section  1342, 
as  article  78  of  said  section,  that  "officers  of 
the  Marine  Corps,  detached  for  service  with 
the  Army  by  order  of  the  President,  may  be 
associated  with  officers  of  the  Regular  Army  on 
courts-martial  for  the  trial  of  offenders  belonging 
to  the  Regular  Army,  or  to  forces  of  the  Marine 
Corps  so  detached ;  and  in  such  cases  the  orders 
of  the  senior  officer  of  either  corps,  who  may 
be  present  and  duly  authorized,  shall  be 
obeyed." 

As  to  status  of  Marine  Corps  when  detached 
for  service  with  the  Army,  see  note  to  section 
1621,  Revised  Statutes;  see  also  note  to  article 
120,  below. 

Articles  119  and  120  of  the  Articles  of 
War  (June  4,  1920)  read  as  follows: 

"Art.  119.  Rank  and  precedence  among 
Regulars,  Militia,  and  Volunteers. — 
That  in  time  of  war  or  public  danger,  when 
two  or  more  officers  of  the  same  grade  are  on 
duty  in  the  same  field,  department,  or  com- 
mand, or  of  organizations  thereof,  the  Presi- 
dent may  assign  the  command  of  the  forces  of 
such  field,  department,  or  command,  or  of  any 
organization  thereof,  without  regard  to  senior- 
ity of  rank  in  the  same  grade. 

"Art.  120.  Command  when  different 
CORPS  OR  commands  HAPPEN  TO  JOIN. — When 
different  corps  or  commands  of  the  military 
forces  of  the  United  States  happen  to  join  or 
do  duty  tocjether.  the  officer  highest  in  rank  of 
the  line  or  the  Regular  Army,  Marine  Corps, 
forces  drafted  or  called  into  the  service  of  the 
United  States,  or  Volunteers,  there  on  duty, 
shall,  subject  to  the  provisions  of  the  last  pre- 
ceding article,  command  the  whole  and  give 
orders  for  what  is  needful  in  the  service,  unless 
otherwise  directed  by  the  President." 

It  was  originally  provided  by  section  1342, 
as  article  122  of  said  section,  that,  "if,  upon 
marches,  guards,  or  in  quarters,  different  corps 
of  the  Army  happen  to  join  or  do  duty  to- 
gether, the  officer  highest  in  rank  of  the  line 
of  the  Army,  Marine  Corps,  or  militia,  by  com- 
mission, there  on  duty  or  in  quarters,  shall 
command  the  whole,  and  give  orders  for  what 
is  needful  to  the  service,  unless  otherwise 
specially  directed  by  the  President,  according 
to  the  nature  of  the  case." 


By  amendment  of  March  8,  1910,  (36  Stat., 
234),  article  122  of  the  original  section  1342, 
was  changed  to  read  as  follows:  "If,  upon 
marches,  guards,  or  in  quarters,  different  corps 
of  the  Army  happen  to  join  or  do  duty  together, 
the  officer  highest  in  rank  of  the  line  of  the 
Army,  Marine  Corps,  or  militia,  by  commission, 
there  on  duty  or  in  quarters,  shall  command  the 
whole,  and  give  orders  for  what  is  needful  to  the 
service,  unless  otherwise  specially  directed  by 
the  President,  according  to  the  nature  of  the 
case." 

Scope  of  article. — "The  one  hundred  and 
twenty-second  [now  120th]  article  of  war  above 
quoted  applies  only  when  'different  corps  of  the 
Army '  happen  to  join  or  do  duty  together.  It 
has  no  pertinency  when  a  portion  of  the  naval 
force  of  the  United  States  and  a  part  of  the 
Army  happen  to  join  or  do  duty  together,  or 
when  any  portion  of  the  Marine  Corps  happens 
to  serve  in  conjunction  with  the  Army,  unless 
such  portion  of  the  Marine  Corps  can  be  deemed 
at  the  time  a  part  of  the  Army  or  at  least  organ- 
ically attached  to  it."  (28  Op.  Atty.  Gen., 
15.)  ■ 

Marine  Corps  detached  for  service  with 
Army. — When  the  Marine  Corps  is  detached 
for  service  with  the  Army,  by  order  of  the  Presi- 
dent, in  accordance  with  section  1621,  Revised 
Statutes,  "then  of  course  it  becomes  a  'corps  of 
the  Army '  within  the  scope  of  the  one  hundred 
and  twenty-second  [now  120th]  article  of  war. 
When  any  part  of  the  Marine  Corps  is  present 
with  the  Army  and  engaged  in  a  common  enter- 
prise with  it,  without  an  order  of  the  President 
detaching  it  for  service  with  the  Army,  the  case 
is  one  of  cooperation,  but  not  of  incorporation; 
and  then  no  officer  of  the  Marine  Corps  can  ex- 
ercise command  over  the  Army  any  more  than 
a  naval  officer  can  when  some  part  of  the 
Navy  is  cooperating  with  the  Army;  and 
conversely  it  is  true  that  no  officer  of  the 
Army  can  exercise  command  over  the  Ma- 
rine Corps  when  the  Army  and  Marine  Corps 
are  merely  cooperating,  without  the  Marine 
Corps  having  been  attached  to  the  Army  by 
order  of  the  President,  any  more  than  an  Army 
officer  can  exercise  command  over  the  Navy 
under  like  circumstances.  Indeed,  this  case 
of  some  part  of  the  Marine  Corps  and  some  part 
of  the  Army  being  together  engaged  in  a  com- 
mon enterprise  is  but  a  special  instance  of  the 
many  cases  in  which  the  Army  and  Navy  coop- 
erate to  a  common  end.  It  becomes  different 
only  when  some  portion  of  the  Marine  Corps  has 
been  attached  to  the  Army  by  the  President's 
order."     (28  Op.  Atty.  Gen.,  15.) 

"The  one  hundred  and  twenty-second  [now 
120th]  article  of  war  does  not  operate  to  give 
to  officers  of  the  Marine  Corjjs  any  authority 
to  exercise  command  in  the  Army  unless  they 
have  been  detached  for  service  with  the  Army 
by  order  of  the  President  and  are  still  serving 
with  the  Army  under  that  order."  (28  Op. 
Atty.  Gen.,  15.) 

Command  of  joint  forces  of  Army  and 
Navy. — "At  the  present  time  there  is  no  law 
which  purports  to  provide  who  shall  command 
joint  forces  of  the  Army  and  Navy  doing  duty 
together,  this  matter  having  heretofore  been 
left  by  Congress  where  it  properly  belongs — to 
the  President,  who,  as  Commander  in  Chief  of 


54641°— 22- 


-29 


443 


Sec.  1342. 


Pt.  2.  REVISED  STATUTES. 


The  Army. 


the  Army  and  Navy,  is  the  only  authority  vested 
by  the  Constitution  with  the  power  to  determine 
what  officers  shall  take  command  of  such  forces 
either  by  virtue  of  rank  or  by  special  designa- 
tion. As  an  example  of  this  authority  of  the 
President,  the  following  article  (1050)  of  the 
Navy  Regulations,  all  of  which  are  issued  with 
the  written  apj>roval  of  the  President,  may  be 
cited : 

"An  officer  of  the  Navy  can  not  assume  com- 
mand of  Army  forces  on  shore,  nor  can  an  officer 
of  the  Army  assume  command  over  any  ship  of 
the  Navy,  or  over  its  officers  or  men  afloat,  ex- 
cept in  either  case  by  special  authority  for  a 
particular  service;  birt  when  officers  of  the  Navy 
are  on  duty  on  shore  with  the  Army,  they  shall 
be  entitled  to  the  precedence  of  the  rank  in  the 
Army  to  which  their  own  corresponds,  except 


command  as  aforesaid,  and  this  precedence  will 
regulate  their  right  to  quarters." 

"Similarly  the  regulations  governing  the  re- 
lationship of  Army  and  naval  officers  while 
engaged  in  convoy  operations  or  in  the  trans- 
portation of  Army  forces  aboard  naval  vessels 
which  have  recently  been  amplified,  indicate 
again  the  authority  of  the  President  in  the  mat- 
ter of  determining  questions  of  command. 
Therefore,  it  appears  clear  to  this  department 
that  the  President  may  issue  immediately 
whatever  regulations  he  may  deem  wise  on  the 
subject  of  command  of  joint  forces  of  the  Army, 
Navy,  and  Marine  Corps,  and  no  enactment  of 
Congress  can  increase  the  power  which  he 
already  possesses  over  this  subject  matter." 
(Secretary  of  the  Navy  to  the  Secretary  of  War, 
Mar.  4,  1918,  file  3980-1402:3.) 


444 


TITLE  XV. 
THE  NAVY. 


Chap.  Sec. 

1.  Organization 1362-1427 

2.  General  provisions  relating  to  officers 1428-1442 

3.  Retired  officers  of  the  Navy 1443-1465 

4.  Rank  and  precedence,  promotion  and  advancement 1466-1510 

5.  The  Naval  Academy 1511-1528 

6.  Vessels  and  navy  yards 1529-1546 

7.  General  provisions  relating  to  the  Navy 1547-1555 

8.  Pay,  emoluments,  and  allowances 1556-1595 

9.  The  Marine  Corps 1596-1623 

10.  Articles  for  the  Government  of  the  Navy 1624 


445 


CHAPTER  ONE. 
ORGANIZATION. 


organization  of. 
appointmenta   in, 


how 


Seo. 

1362.  Grades  of  line  officers. 

1363.  Number  of  line  officers. 

1364.  WTien  number  of  line  officers  may  be  ex- 

ceeded. 

1365.  Selection  of  rear  admirals  during  war. 

1366.  Promotion  to  rear  admiral  during  peace. 

1367.  Secretaries    to    Admiral    and    \'ice    Ad- 

miral. 

1368.  Medical  Corps; 

1369.  Medical    Corps; 

made. 

1370.  Medical  Corps;  qualifications  for  assist- 

ant surgeons. 

1371.  Medical  Corps;  promotions  in. 

1372.  Medical  Corps;  rank  of  assistant  surgeons 

in  case  of  delayed  examination. 

1373.  Medical  Corps;  surgeon  of  the  fleet. 

1374.  Medical  Corps;  duties  of  surgeon  of  the 

fleet. 

1375.  Medical    Corps;   assistant   to   Bureau   of 

Medicine  and  Surgery. 

1376.  Supply  Corps;  organization  of. 

1377.  Supply  Corps;  no  promotion  or  appoint- 

ment in  certain  grades  until  reduced. 

1378.  Supply    Corps;    appointments    in,    how 

made. 

1379.  Supply  Corps;  qualifications  for  assistant 

paymasters. 

1380.  Supply  Corps;  promotions  in. 

1381.  Supply  Corps;  acting  appointments  on 

ships  at  sea. 

1382.  Supply  Corps;  paymaster  of  the  fleet. 

1383.  Supply  Corps;  bonds  of  officers. 

1384.  Supply  Corps;  new  bonds  required. 

1385.  Supply  Corps;  bonds  not  affected  by  new 

commissions. 

1386.  Supply  Corps;  when  clerks  allowed  offi- 

cers. 

1387.  Supply  Corps;  when  clerks  not  allowed 

officers. 

1388.  Supply  Corps;  clerks  to  passed  assistant 

and  assistant  paymasters. 

1389.  Supply  Corps;  loans  to  officers  prohib- 

ited. 

1390.  Engineer  Corps;  organization  of. 

1391.  Engineer  Corps;  appointments  in,   how 

made. 

1392.  Engineer    Corps;    qualifications   for   ap- 

pointment and  promotion. 

1393.  Engineer  of  the  fleet. 


Sec. 

1394.  Engineer  Corps;  appointments  from  cadet 

engineers. 

1395.  Chaplains;  number  and  appointment  of . 

1396.  Chaplains;  qualifications  of . 

1397.  Chaplains;  form  of  worship. 

1398.  Chaplains;  annual  report  by. 

1399.  Professors  of  mathematic." ;  number  of . 

1400.  Professors  of  mathematics;  appointment 

of. 

1401.  Professors  of  mathematics;  duties  of. 

1402.  Construction  Corps;  number  and  appoint- 

ment of  naval  constructors. 

1403.  Construction  Corps;  appointment  of  as- 

sistant naval  constructors. 

1404.  Construction  Corps;  duties  of . 

1405.  Warrant  officers;  number  and  appoint- 

ment of. 

1406.  Warrant  officers;  title. 

1407.  Warrant   officers;   seamen   promoted   for 

heroism;  medals  of  honor. 

1408.  Mates;  rating  of  enlisted  men  as. 

1409.  Mates    and    warrant    officers;    not    dis- 

charged from  enlistment. 

1410.  Acting  officers;  petty  officers;  secretaries 

and  clerks. 

1411.  Acting  assistant  surgeons. 

1412.  Volunteer   officers;   transfer   to   Regular 

Navy,  etc. 

1413.  Civil  Engineer  Corps  and  Storekeepers. 

1414.  Civilian  storekeepers  on  foreign  stations. 

1415.  Civilian  storekeepers  to  give  bond. 

1416 .  Civil  offices  at  yards  may  be  discontinued . 

1417.  Enlisted  men,  number  of;  advancement 

to  warrant  officers. 

1418.  Enlistment;  age  and  term  of. 

1419.  Enlistment,  minors,  consent  of  parents 

and  guardians. 

1420.  Enlistment;  prohibited  classes. 

1421.  Enlisted  men;  transfer  from  military  to 

naval  service. 

1422.  Enlistment;   detention  after  expiration 

of;  transportation  home. 

1423.  Enlisted    men;    subject    to    regulations 

while  sent  home  or  detained. 

1424.  Enlisted  men;  limit  of  detention. 

1425.  Enlistment;  shipping  articles  to  contain 

provisions  of  preceding  sections. 

1426.  Enlisted  men;  honorable  discharge  of. 

1427.  Enlisted   men;   form  of  honorable  dis- 

charge. 


446 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1362. 


Sec.  1362.  [Grades  of  line  oflBlcers.     Superseded.] 


This  section  provided  as  follows: 

"Sec.  1362.  The  active  list  of  the  line  officers 
of  the  Navy  of  the  United  States  shall  be 
divided  into  eleven  grades,  as  follows,  namely: 

"First.  Admiral. 

"Second.  Vice  Admiral. 

"Third.  Rear  admirals. 

"Fourth.  Commodores. 

"Fifth.  Captains. 

"Sixth.  Commanders. 

"Seventh.  Lieutenant  commanders 

"Eighth.  Lieutenants. 

"Ninth.  Masters. 

"Teath.  Ensigns. 

"Eleventh.  Midshipmen. 

^^  Provided,  That  vacancies  occurring  in  the 
grades  of  Admiral  and  Vice  Admiral  shall  not 
be  filled  by  promotion,  or  in  any  other  manner; 
and  that  when  the  offices  of  said  grades  shall 
become  vacant,  the  grade  itself  shall  cease  to 
exist.';— (16  July,  1862,  c.  183,  s.  1,  v.  12,  p.  583. 
21  Dec,  1864,  c.  6,  e.  1,  v.  13,  p.  420.  25  July, 
1866,  c.  231,  8.  I,  V.  14,  p.  222.  2  Mar.,  1867,  c. 
174,  s.  1,  V.  14,  p.  516.  24  Jan.,  1873,  c.  62,  v. 
17,  p.  418). 

It  was  superseded  by  the  Navv  personnel 
actj  March  3,  1899,  section  7  (30  Stat.,  1005), 
which  provided  that  "the  active  list  of  the  line 
of  the  Navy"  shall  be  composed  of 
Rear  admirals; 
Captains; 
Commanders; 
Lieutenant  commanders ; 
Lieutenants ; 

Lieutenants  (junior  grade);   and 
Ensigns. 

Rear  admirals  were  divided  into  two 
grades  for  pay  purposes  by  section  7  of  the 
personnel  act  above  cited,  rear  admirals  of  the 
"nine  lower  numbers  "  being  given  the  pay  and 
allowances  of  brigadier  generals  in  the  Army, 
while  rear  admirals  of  the  upper  nine  numbers 
were  not  specifically  provided  for,  but,  under 
the  general  provisions  contained  in  section  13 
of  the  same  act  they  received  the  same  pay  and 
allowances  as  officers  of  corresponding  rank  in 
the  Army,  namely,  major  general,  that  being 
the  rank  corresponding  with  the  rank  of  rear 
admiral  according  to  section  1466,  Revined 
Statutes.  This  division  of  rear  admirals  into 
two  grades  for  pay  purposes  was  continued  in 
effect  by  the  act  of  May  13,  1908  (35  Stat.  127), 
which  provided  different  rates  of  pay  for  "rear 
admiral,  first  nine,"  and  "rear  admiral,  second 
nine."     (See  Terry  v.  U.  S.,  39  Ct.  Cls.,  353.) 

By  act  of  August  29, 1916  (39  Stat.,  576,  577), 
provision  was  made  for  increasing  the  number 
of  officers  allowed  in  the  various  grades  and 
ranks  of  the  Navy,  and  it  was  further  enacted 
that  "hereafter  pay  and  allowances  of  officers 
in  the  upper  half  of  the  grade  or  rank  of  rear 
admiral,  including  the  staff  corps  and  including 
staff  officers  heretofore  permanently  com- 
missioned with  the  r.ank  of  rear  admiral,  shall 
be  that  now  allowed  by  law  for  the  first  nine 
rear  admirals,  and  the  pay  and  allowances  of 
officers  in  the  lower  half  of  the  grade  or  rank  of 
rear  admiral,  including  the  staff  corps,  shall  be 
that  now  allowed  by  law  for  the  second  nine 
rear  admirals. ' ' 


The  grade  of  commodore  was  omitted 
from  the  active  list  by  the  Navy  personnel  act, 
section  7,  above  cited.  That  act,  however, 
while  thus  abolishing  the  grade  of  commodore 
on  the  active  list,  did  not  thereby  affect  the 
rank  of  officers  then  on  the  retired  list  having 
the  rank  of  commodore,  and  it  contained  several 
provisions  for  the  future  retirement  of  officers 
with  that  rank  under  certain  prescribed  con- 
ditions, viz,  by  section  7  of  said  act  (30  Stat., 
1005)  it  was  provided  "that  nothing  contained 
in  this  section  shall  be  construed  to  prevent  the 
retirement  of  officers  who  now  have  the  rank  or 
relative  rank  of  commodore  with  the  rank  and 
pay  of  thatgrade; "  by  section  8  (30  Stat.,  1006), 
it  was  provided  that  officers  retired  on  their  own 
application  for  the  purpose  of  creating  a  pre- 
scribed minimum  of  annual  vacancies  should 
be  placed  on  the  retired  list  with  the  rank  and 
pay  of  the  "next  higher  grade,  as  now  existing, 
including  the  grade  of  commodore;"  by  sec- 
tion 9  (30  Stat.,  1006),  it  was  provided  that 
officers  retired  by  selection  for  the  purpose  of 
creating  a  prescribed  minimum  of  annual 
vacancies  should  be  placed  on  the  retired  list 
with  the  rank  and  pay  of  the  "next  higher 
grade,  including  the  grade  of  commodore,  which 
is  retained  on  the  retired  list  for  this  purpose. " 
None  of  these  provisions  for  retirement  with  the 
rank  of  commodore  is  now  in  force.  By  section 
11  of  the  personnel  act  (30  Stat.j  1006),  it  w&s 
provided  that  officers  having  Civil-War  service 
should,  when  retired,  be  retired  with  the  rank 
"of  the  next  higher  grade; "  under  that  section, 
officers  with  the  rank  of  captain  on  the  active 
list  were  retired  with  the  rank  of  rear  admiral 
and  not  commodore.  Under  section  1481,  Re- 
vised Statutes,  certain  staff  oflicers  are  retired 
with  the  rank  of  commodore,  this  being  the 
only  case  in  which  any  officers  are  now 
placed  on  the  retired  list  with  that  rank. 
(In  this  connection,  see  notes  to  sees.  421 
and  1473,  R.  S.,  concerning  the  retirement  of 
chiefs  of  bureaus  in  the  Navy  Department.) 
The  naval  appropriation  act  of  May  13,  1908 
(35  Stat.,  127),  which  established  new  rates 
of  pay  for  the  Navy,  provided  that  "hereafter 
all  commissioned  officers  of  the  active  list  of 
the  Navy  shall  receive  the  same  pay  and  allow- 
ances according  to  rank  and  length  of  service, 
and  the  annual  pay  of  each  grade  shall  be  as 
follows:  *  *  *  rear  admiral,  second  nine, 
or  commodore,  six  thousand  dollars."  How- 
ever, there  were  no  commodores  on  the  active 
list  at  the  time  of  this  enactment  and  none 
have   since   been   appointed. 

The  grade  of  Admiral  ceased  to  exist,  in 
accordance  with  section  1362,  Revised  Stat- 
utes, February  13,  1891,  in  consequence  of  the 
death  of  Admiral  David  D.  Porter.  The  grade 
of  Vice  Admiral  had  previously  ceased  to  exist, 
Vice  Admiral  Stephen  C.  Rowan  having  retired 
February  26,  1889,  and  died  March  31,  189  0. 
However,  by  act  March  2,  1899  (30  Stat.,  905), 
the  President  was  authorized  to  appoint  an 
"Admiral  of  the  Nav>',"  with  the  condition 
that  "whenever  such  office  shall  be  vacated 
by  death  or  otherwise  the  office  shall  cease  to 
exist."  The  following  day,  March  3,  1899, 
the  Navy  personnel  act  became  law,  providing, 


447 


Sec.  1362. 


PL  2.   REVISED  STATUTES. 


The  Navy. 


as  above  set  forth,  what  officers  should  compose 
"the  active  list  of  the  line  of  the  Navy,"  and 
making  no  mention  of  "Admiral  of  the  Navy." 
In  anticipation  of  a  possible  decision  that 
this  omission  of  the  grade  of  "Admiral  of 
the  Navy"  from  the  personnel  act  impliedly 
repealed  the  prior  enactment  of  March  2,  1899, 
authorizing  tne  appointment  of  such  officer, 
the  said  act  of  March  2,  1899,  authorizing  the 
appointment  of  an  "Admiral  of  the  Navy," 
was  reenacted  in  the  same  words  as  a  clause 
in  the  naval  appropriation  act  of  March  3,  1899 
(30  Stat.  1045).  The  grade  of  "Admiral  of  the 
Na\'y"  accordingly  continued  as  part  of  the 
active  list  of  the  Navy  until  such  office  was 
"vacated"  by  the  death  of  Admiral  George 
Dewey  on  January  16,  1917,  when  such  grade  in 
accordance  with  law  ceased  to  exist. 

The  naval  appropriation  act  of  March  3,  1915 
(38  Stat.,  941,  942),  provided  that  the  com- 
manders in  chief  of  the  Atlantic,  Pacific,  and 
Asiatic  Fleets  shall  have  the  rank  of  admiral, 
and  the  officers  second  in  command  of  said 
fleets  shall  have  the  rank  of  vice  admiral,  from 
the  date  each  such  officer  shall  assume  duty  as 
commander  in  chief  or  second  in  command, 
respectively,  until  his  relinquishment  of  such 
duty ;  and  that ' '  the  grades  of  admiral  and  vice 
admiral  in  the  Navy  are  hereby  reestablished 
and  authorized  for  the  purposes  of  this  section. " 
It  was  further  provided  that  when  an  officer  is 
detached  from  duty  as  such  commander  in  chief 
or  second  in  command,  "he  shall  return  to  his 
regular  rank  in  the  list  of  rear  admirals ' '  from 
which  appointed .  This  act  has  been  construed 
as  not  investing  the  officers  concerned  with  the 
offices  of  admiral  and  vice  admiral,  but  merely 
as  conferring  upon  them  temporarily  the  rank 
and  pay  of  those  offices,  while  they  continued 
at  the  same  time  to  be  officers  of  the  grade  of 
rear  admiral.  (21  Comp.  Dec,  840.)  See  note 
below,  "'Title,'  'grade,'  'rank,' and 'office' 
defined  and  distinguished." 

By  act  of  May  22,  1917,  section  18  (40  Stat.,  89) 
the  pro\'ision  in  the  act  of  March  3,  1915, 
quoted  in  the  preceding  paragraph,  was  ex- 
pressly repealed,  and  in  lieu  thereof  it  was 
proAdded  that  the  President  be  authorized  to 
designate  six  officers  of  the  Navy  for  the  com- 
mand of  fleets  or  subdivisions  thereof,  and  that, 
after  such  designation,  from  the  date  of  assum- 
ing such  command  until  relinquishing  thereof, 
not  more  than  three  of  such  officers  shall  each 
have  the  rank  and  pay  of  an  admiral  and  the 
others  shall  each  have  the  rank  and  pay  of  a 
vice  admiral;  and  that  "the  grades  of  admiral 
and  \ice  admiral  are  hereby  authorized  and 
continued  for  the  purpose  of  this  Act;"  pro- 
\ided,  that  in  time  of  war  the  selections  under 
the  provisions  of  said  act  shall  be  made  from  the 
grades  of  rear  admiral  or  captain  on  the  active 
list  of  the  Navy,  and  that  in  time  of  peace  such 
selections  shall  be  made  from  among  the  rear 
admirals  on  the  active  list  of  the  Navj';  pro- 
vided further,  that  nothing  contained  herein 
shall  create  any  vacancy  in  any  grade  in  the 
Navy  or  increase  the  total  number  of  officers 
authorized  by  law;  provided  further,  that  when 
any  officer  •nith  the  rank  of  admiral  or  vice  ad- 
miral is  detached  from  the  command  of  a  fleet  or 
subdivision  thereof  he  shall  return  to  his  regular 
rank  in  the  list  of  officers  of  the  Navy  and  shall 


thereafter  receive  only  the  pay  and  allowances 
of  such  rank ;  and  provided  further  that  nothing 
in  said  act  shall  be  held  or  construed  as  amend- 
ing or  repealing  sections  1434,  1463,  and  1464  of 
the  Re\Tsed  Statutes. 

By  act  of  August  29,  1916  (39  Stat.,  558),  it 
was  provided  that  the  Chief  of  Naval  Opera- 
tions, while  so  serving,  shall  have  the  rank 
and  title  of  admiral,  to  take  rank  next  after  The 
Admiral  of  the  Navy,  and  if  retired  while  so 
serving  he  shall  be  retired  with  the  lineal  rank 
and  retired  pay  to  which  he  would  be  entitled 
had  he  not  been  serving  as  Chief  of  Naval 
Operations.   - 

The  grades  of  master  and  midshipman 
as  part  of  the  active  list  of  the  line,  under  sec- 
tion 1362,  Revised  Statutes,  were  abolished, 
and  the  grades  of  lieutenant  (junior  grade)  and 
junior  ensign,  created  by  actof  March3, 1883  (22 
Stat.,  472),  which  had  the  effect  of  changing  the 
title  "master"  to  "lieutenant  (junior  grade)" 
and  the  title  "midshipman"  to  ''ensign"  (see 
Schuetze  v.  U.S.,  24  Ct.  Cls.,  299;  Weller  v. 
U.  S.,  41  Ct.  Cls.,  324,  337),  and  the  grade  of 
junior  ensign  thus  created  was  abolished  by  act 
of  June  26,  1884,  section  2  (23  Stat.,  60).  The 
title  of  ''midshipman"  was  applied  to  students 
at  the  Naval  Academy  by  actof  July  1, 1902(32 
Stat.,  686).  "Midshipmen  are,  by  law,  officers 
in  a  qualified  sense.  They  are  classed  as  being 
of  the  line. "  (Art.  R-1002,  par.  3,  Navy  Regu- 
lations, 1913.  See  Weller  v.  U.  S.,  41  Ct.  Cls., 
324;  Schuetze  v.  U.  S.,  24  Ct.  Cls.,  299.) 

Who  are  line  oflB.cers;  status  of  warrant 
and  commissioned  warrant  officers. — In 
1862  Congress  passed  an  act  purporting  to  estab- 
lish the  grade  of  line  officers  in  the  Navy.  Prior 
to  that  time  there  is  little  or  nothing  in  the  stat- 
utes about  the  line  of  the  Navy.  In  that  stat- 
ute, without  explaining  which  of  the  v^arious 
meanings  of  the  word  "line"  Congress  had  in 
mind,  it  left  no  doubt  as  to  the  officers  it 
intended  to  embrace  among  the  line  officers  of 
the  Navy,  for  it  mentioned  them  all.  This 
specification  was  practically  repeated  in  the 
acts  of  July,  1866,  in  the  Revised  Statutes  of 
1873,  in  an  act  of  August  5,  1882,  and  in  the 
naval  personnel  act  of  March  3,  1899.  (22  Op. 
Atty.  Gen.,  620.) 

It  is  obvious  that  all  officers  specified  by 
Congress  as  line  officers  were  thereby  distin- 
guished from  all  officers  not  specified,  whether 
those  officers  were  staff  officers,  properly  so 
called,  or  officers  belonging  to  special  corps, 
such  as  the  Pay  Corps,  the  Medical  Corps, 
and  the  like,  warrant  officers,  or  petty  officers. 
(22  Op.  Atty.  Gen.,  620.) 

"From  the  earliest  times  the  officers  of  the 
Navy  have  been  divided  into  commission  offi- 
cers, warrant  officers,  and  petty  officers,  the 
difference  being  rather  a  difference  in  the  mode 
of  the  appointment  or  designation  than  one 
growing  out  of  the  function  to  be  performed. 
The  commission  officers  were  those  holding 
commissions  from  the  President  like  the  com- 
missions of  other  officers  of  the  United  States; 
warrant  officers  had  no  such  commissions  but 
only  warrants  given  by  the  President  or  Navy 
Department;  and  petty  officers  were  rated  or 
designated  by  the  commanders  of  their  respec- 
tive vessels  from  among  the  enlisted  men  on 
board."    (22  Op.  Atty.  Gen.,  620.) 


448 


The  Navy. 


Pt.2.   REVISED  STATUTES. 


Sec.  1362. 


It  seems  to  be  ciear  that,  within  the  meaning 
of  the  Revised  Statutes  and  subsequent  laws, 
line  officers  of  the  Navy  are  the  officers  specified 
as  such  by  Congress,  and  that  no  others  are  such 
officers  of  the  line.  It  follows  that  no  warrant 
officers  are,  within 'the  meaning  of  those  laws, 
officers  of  the  line.     (22  Op.  Atty.  Gen.,  620.) 

However,  Congress  in  speaking  of  "the  line" 
evidently  does  not  mean  "the  line  of  com- 
mand," and  there  is  nothing  in  its  classification 
to  indicate  an  intent  to  make  unlawful  the  exer- 
cise of  command  by  boatswains  and  gunners. 
"It  would  seem  that  boatswains  and  gunners 
have  been  in  the  line  of  command  as  a  matter  of 
fact  for  a  century.  Both  of  them  are  officers 
whose  functions  and  business  are  ancient  and 
are  involved  in  the  customs  of  the  British  and 
American  navies.  As  a  navy  is  an  organic 
growth,  its  antecedents  and  customs  should  not 
be  ignored  *  *  *.  From  all  that  has  been 
said  I  think  we  may  conclude  that  treating  those 
officers  as  in  the  line  of  command  was  not  with- 
out lawful  authority  before  1862  *  *  *. 
These  things  being  so,  I  think  those  officers  are 
not  improperly;  classed  in  the  Regulations  as 
officers  of  the  line,  and  that  they  can  properly 
be  given  the  star  upon  their  uniforms."  (22 
Op.  Atty.  Gen.,  620.) 

"The  machinist  has  existed  in  the  Navy  for 
Bome  time,  of  course,  and  yet  for  no  great 
period.  He  has  been  a  rated  or  petty  officer 
(Art.  794,  Regulations  of  1893).  The  personnel 
act  of  this  year  [1899]  creating  the  office  of  war- 
rant machinist  [now  "machinist"]  shows 
plainly  that  Congress  did  not  intend  to  place 
the  machinists  in  its  own  list  of  line  officers, 
for  it  repeated  that  Ust  in  section  7,  and 
omitted  them.  They  had  previously  been  con- 
nected with  the  Engineer  CJorps  or  its  business, 
a  staff  or  special  corps,  no  part  of  which  had 
been  exercising  miUtary  command.  The  per- 
sonnel bill  has  not  been  regarded  as  ipso  facto 
transferring  all  the  officers  of  that  corps  to  the 
line  of  command.  (See  General  Orders  524.) 
As  these  machinists  do  not  appear  to  have  pre- 
viously exercised  miUtary  command,  I  think 
that,  before  they  are  to  be  held  entitled  to 
command,  and  others,  including  senior  officers, 
held  to  be  under  obUgations  to  obey  them, 
something  positive  to  that  effect  should  be  pro- 
duced from  the  personnel  acts  or  from  the  gen- 
eral nature  of  their  duties  or  elsewhere.  The 
presumption  is  the  other  way,  and  I  find  noth- 
ing to  overcome  it."     (22  Op.  Atty.  Gen.,  C20.) 

Since  the  above  opinion  was  rendered  by  the 
Attorney  General,  it  has  been  held  by  the  Navy 
Department  (file  17789-15,  Dec.  13,  21,  1909) 
that  machinists  should  be  classified  as  line 
officers,  the  same  as  boatswains  and  gunners, 
and  accordingly  it  was  provided  by  Navy 
Regulations  that  chief  boatswains,  cliief  gun- 
ners, and  chief  machinists  (who  are  commis- 
sioned officers,  designated  by  the  Navy  Regu- 
lations as  "commissioned  warrant  officers," 
Art.  R-1013,  par.  2,  Navy  Regs.,  1913),  and 
boatswains,  gunners,  and  machinists  (who  are 
warrant  officers),  are  line  officers  of  the  Navy 
(Art.  R-1013,  par.  3,  Navy  Regs.,  1913);  but 
that  "so  far  as  succession  to  command  or 
succession  to  duties  aboard  ship  outside  the 
engineer  department  are  concerned  chief  ma- 
chinists and  machinists  are  restricted  to  the 


performance  of  engineering  duty  only."     (Art. 
R-1013,  par.  3,  Navy  Regs.,  1913.) 

As  to  the  appointment  of  warrant  officers  and 
commissioned  warrant  officers,  see  note  to  sec- 
tion 1405,  Revised  Statutes. 

"Title,"  "grade,"  "rank,"  and  "office" 
defined  and  distinguished. — Title  is  the 
name  by  which  an  office  or  the  holder  of  an 
office  is  designated  and  distinguished  in  the 
statute  and  by  which  the  officer  has  a  right  to 
be  known  and  addressed;  grade  expresses  one 
of  the  divisions  or  degrees  in  the  particular 
department  or  branch  of  the  service  according 
to  which  offices  therein  are  classified  or  graded ; 
and  rank,  which  originally  signified  that  which 
determines  the  right  to  command  and  is  still 
an  inseparable  incident  to  such  right,  expresses 
the  position  of  officers  of  different  grades  or  of 
the  same  grade  in  point  of  authority,  prece- 
dence, or  the  Like,  of  one  over  another.  (16  Op. 
Atty.  Gen.,  414.) 

The  word  "rank"  is  sometimes  used,  how- 
ever, as  synonymous  with  "grade";  thus,  when 
it  is  said  that  a  particular  officer  shall  have  the 
rank  of  captain,  commander,  and  so  forth,  there 
being  no  qualifying  word,  it  is  used  in  the  sense 
of  grade,  and  this  whether  the  rank  is  perma- 
nently or  temporarily  given.  (16  Op.  Atty. 
Gen.,  414;  see  also  Wood  v.  U.  S.,  15  Ct.  Cls., 
151,  160.) 

In  some  cases  the  same  word  or  appellation 
may  express,  aUke,  title,  grade,  and  rank  with 
clearness.  Thus,  in  section  1362,  which  pro- 
vides that  "the  active  Ust  of  the  line  officers  of 
the  Navy  of  the  United  States  shall  be  divided 
into  eleven  grades,  as  follows,  namely,"  etc., 
each  of  the  words  "  Admiral,"  and  "  Vice 
Admiral,"  expresses  the  title  of  the  officer  hold- 
ing either  of  those  respective  positions,  his 
grade,  and  his  rank;  in  other  words,  the  name 
hj  which  he  is  entitled  to  be  addressed,  the 
division  or  degree  in  the  line  of  the  Navy  to 
which  he  belongs,  and  the  rank  which  he  holds 
in  it.  If,  however,  there  were  more  than  one 
officer  of  the  same  title  and  grade,  it  would  not 
necessarily  express  rank.  Thus,  "rear  ad- 
miral," which  is  a  grade  composed  of  more 
officers  than  one,  each  having  a  right  to  the 
same  title,  does  not  express  the  rank  which  they 
hold  inter  sese,  although  it  expresses  the  rank 
so  far  as  those  above  and  below  that  grade  are 
concerned.     (16  Op.  Atty.  Gen.,  414.) 

"Grade  is  a  step  or  degree  in  either  office  or 
rank,  and  has  reference  to  the  divisions  of  the 
one  or  the  other  or  both,  according  to  the  con- 
nection in  which  the  word  is  employed." 
(Wood-D.  U.S.,15Ct.Cls.,  151, 160;  aftu-med  107 
U.  S.,  414;  seealso  Moseri;.  U.  S.,  42  Ct.  Cls.,  86; 
Thornley  v.  U.  S.,  18  Ct.  Cls.,  111.) 

The  distinction  between  rank  and  office  is 
more  clearly  apparent  with  reference  to  staff 
officers  than  to  officers  of  the  line,  because  in 
the  latter  case  the  words  used  to  designate  the 
rank  and  the  office  are  usually  the  same,  while 
in  the  former  case  they  are  always  different. 
(Wood  V.  U.  S.,  15  Ct.  Cls.,  151,  159.) 

While  "grade"  has  the  same  meaning  as 
"office,"  "rank"  is  merely  a  classification  to 
fix  the  position  of  officers  Avith  respect  to  other 
officers  in  the  same  or  in  other  grades,  as  to 
command,  precedence,  privilege,  or  pay. 
"Rank"  may  be  conferred  by  mere  notinca- 


449 


Sec.  1363. 


PL  2.   REVISED  STATUTES. 


The  Navy. 


tion,  and  without  cither  examination,  con- 
firmation, or  commission  (citing  Gen.  Wood's 
Case,  15  Ct.  Cls.,  151,  159;  Wood  v.  U.  S.,  107 
U.  S.,  414;  20  Op.  Atty.  Gen.,  358,  362,  363;  19 
Op.  Atty.  Gen.,  169;  27  Op.  Atty.  Gen.,  376). 
So  also,  while  "grade  "  is  only  partially,  "rank  " 
is  wholly,  witliin  the  control  of  Congress  (citing 
Wood  V.  U.  S.,  107  U.  S.,  414,  417;  Sen.  Rept. 
No.  2163,  3Sth  Cong.,  2d  sess.).  But  whenever 
Congress  creates  a  new  gi*ade  or  rank,  without 
making  any  provision  for  filling  it,  the  selec- 
tion, in  the  case  of  a  vacancy  in  grade,  is  made 
by  the  President,  by  and  with  the  ad\dce  and 
consent  of  the  Senate  (citing  29  Op.  Atty.  Gen., 
117);  wliile  in  the  case  of  a  vacancy  in  rank  it 
is  made  by  the  President  as  Commander  in 
Chief  of  the  Navy,  without  any  action  on  the 
part  of  the  Senate  (citing  Gen.  Ainsworth's 
Case,  22  Op.  Atty.  Gen.,  480).  (Op.  Atty.  Gen., 
Dec.  27,  1916,  file  28687-4:8.) 

Rank  is  often  used  to  express  something 
different  from  office.  It  then  becomes  a  desig- 
nation or  title  of  honor,  dignity,  or  distinction 
conferred  upon  an  oflicer  in  order  to  fix  his  rela- 
tive position  with  reference  to  other  officers  in 
matters  of  privilege,  precedence,  and  some- 
times of  command,  or  by  which  to  determine 
his  pay  and  emolimients.  (Wood  v.  U.  S.,  15 
Ct.  Cls.,  151,  159.) 

In  some  cases,  officers  of  the  line  have  a  rank 
assigned  to  them  different  from  that  of  the  title 
of  their  office.  Congress  has  frequently  exer- 
cised the  power  of  changing  the  mere  rank  of 
officers,  without  invoking  the  constitutional 
power  of  the  Executive  to  appoint  the  incum- 
bents to  new  offices.  Accordingly,  held  that 
when  a  line  officer  is  retired  upon  a  higher  rank 
pursuant  to  act  of  Congress,  as  a  reward  for  serv- 
ices rendered  in  battle,  his  office  remains  the 


same  as  it  was  on  the  active  list,  but  he  acquires 
a  higher  rank  without  in  any  sense  being  ap- 

gointed  to  a  new  office.  (Wood  v.  U.  S.,  15  Ct. 
Is.,  151,  159, 161,  162;  affirmed  107  U.  S.,  414.) 

The  titles  or  names  of  offices  to  which  line 
officers  are  appointed  are  employed  also  as  the 
designation  of  rank,  and  when  no  other  rank  is 
conferred  upon  them  the  titles  of  their  respec- 
tive offices  also  express  their  rank;  but  it  does 
not  follow  that  rank  and  office  are  therefore 
always  identical,  and  in  point  of  fact  they  are 
not  so.  (Wood  V.  U.  S.,  15  Ct.  Cls.,  151,  158, 
159.) 

The  office  remaining  the  same,  the  officer  may 
have  a  different  rank  conferred  on  liim,  as  a 
title  of  distinction,  to  fix  his  relative  position 
with  reference  to  others.  (Wood  v.  U.  S.,  107 
U.  S.,  414.) 

The  word  "grade"  in  Revised  Statutes,  sec- 
tion 1588,  which  fixes  the  pay  of  retired  officers 
of  the  Navy  at  75  per  cent  of  the  pay  of  the 
grade  or  rank  held  by  them  at  the  time  of  re- 
tii-ement,  refers  to  the  di\dsions  of  officers  into 
five-year  periods  of  service.  (Rutherford  v. 
U.  S.,  18  Ct.  Cls.,  339.) 

Where  the  law  provided  that  certain  officers 
should  have  "the  highest  rates  of  pay  attached 
to  their  respective  grades,"  it  was  held  that  the 
officers  in  question  were  thereby  entitled  to  the 
highest  pay  of  their  rank,  the  court  saying:  "A 
grade  is  a  step  in  a  series,  a  rank;  *  *  *  a 
grade  is  a  rank,  and  in  oiu-  opinion  Congress  in- 
tended to  give  plaintiff  the  liighest  pay  of  his 
rank."     (Schuetze  v.  U.  S.,  24  Ct.  Cls.,  299.) 

For  other  cases,  see  notes  to  sections  421,  422, 
423,  and  1457,  Revised  Statutes. 

Relative  rank  bet-ween  Army  and  Navy 
officers. — See  section  1466,  Revised  Statutes. 


Sec.  1363.  [Number  of  line  officers.     Superseded.] 


This  section  provided  as  foUo-ws: 

"Sec.  1363.  There  shall  be  allowed  on  the 
active  list  of  the  line  officers  of  the  Navy  one 
Admiral,  one  Vice-Admiral,  ten  rear-admirals, 
twenty-five  commodores,  fifty  captains,  ninety 
commanders,  eighty  lieutenant-commanders, 
two  hundred  and  eighty  lieutenants,  one  hun- 
dred masters,  and  one  hundred  ensigns;  and 
no  promotion  to  the  grade  of  lieutenant-com- 
mander shall  be  made  until  the  number  of  such 
grade  is  reduced  below  eighty." — (25  July,  1866, 
c.  231,  s.  1,  v.  14,  p.  222.  15  July,  1870,  c.  295, 
8S.  9,  10,  v.  16,  p.  333.) 

It  -was  amended  by  act  of  August  5,  1882 
(22  Stat.,  286),  which  reduced  the  number  of 
officers  in  the  various  gi-ades  of  the  line  to  the 
following:  Rear  admirals,  6;  commodores,  10; 
captains,  45;  commanders,  85;  lieutenant  com- 
manders, 74;  lieutenants,  250;  masters,  75;  and 
ensigns,  75. 

It  was  superseded  by  the  Navy  personnel 
act  of  March  3,  1899,  section  1  of  which  act  (30 
Stat.,  1004)  transferred  the  officers  of  the  Engi- 
neer Corps  of  the  Navj'  to  the  line,  and  section  7 
of  which  act  (.30  Stat.,  1005)  provided  that  "the 
active  list  of  the  line  of  the  Navy,  as  consti- 
tuted by  section  one  of  this  act,  shall  be  com- 
posed of"  the  follo^\^ng:  18  rear  admirals,  70 
captains,  112  commanders,  170  lieutenant  com- 
manders, 300  lieutenants,  and  not  more  than  a 


total  of  350  lieutenants  (junior  grade)  and 
ensigns. 

The  number  of  line  officers  was  in- 
creased by  act  of  March  3, 1903  (32  Stat.,  1197), 
which  authorized  30  additional  lieutenant  com- 
manders, in  all  200;  50  additional  lieutenants, 
in  all  350;  and  such  total  numbers  of  lieuten- 
ants (junior  grade)  and  ensigns  as  may  qualify 
for  said  grades  under  existing  law. 

The  nxunber  of  line  officers  was  again  in- 
creased by  act  of  August  29, 1916  (39  Stat.,  576, 
577),  which  provided  that  "hereafter  the  total 
number  of  commissioned  officers  of  the  active  list 
of  the  Une  of  the  Navy,  exclusive  of  commis- 
sioned warrant  officers,  shall  be  four  per  centum 
of  the  total  authorized  enlisted  strength  of  the 
active  list,  exclusive  of  the  Hospital  Corps, 
prisoners  undergoing  sentence  of  discharge, 
enlisted  men  detailed  for  duty  with  the  Naval 
Militia,  and  the  Fljdng  Corps:  Provided,  That 
the  total  number  of  commissioned  line  officers 
on  the  active  Ust  at  any  one  time,  exclusive  of 
commissioned  warrant  officers,  shall  be  dis- 
tributed in  the  proportion  of  one  of  the  grade  of 
rear  admiral  to  four  in  the  gi'ade  of  captain,  to 
seven  in  the  grade  of  commander,  to  fourteen  in 
the  grade  of  lieutenant  commander,  to  thirty- 
two  and  one-half  in  the  grade  of  lieutenant,  to 
forty-one  and  one-half  in  the  grades  of  Ueuten- 
ant    (junior    grade)    and    ensign,    inclusive: 


450 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1363. 


Provided  further,  That  lieutenants  (junior 
grade)  shall  have  had  not  less  than  three  years' 
service  in  that  gi-ade  before  being  eligible  for 
promotion  to  the  grade  of  lieutenant.  *  *  * 
When  there  is  an  odd  number  of  officers  in  the 
grade  or  rank  of  rear  admiral  in  the  line  or  in 
each  corps,  the  lower  di^dsion  thereof  shall  in- 
clude the  excess  in  number,  except  where  there 
is  but  one.  Whenever  a  final  fa-action  occurs  in 
computing  the  authorized  number  of  any  corps, 
gi-ade  or  rank  in  the  naval  ser\-ice,  the  nearest 
whole  number  shall  be  regarded  as  the  author- 
ized number:  Provided,  That  at  least  one  officer 
shall  be  allowed  in  each  grade  or  rank.  For 
the  purpose  of  determining  the  authorized 
number  of  officers  in  any  grade  or  rank  of  the 
line  or  of  the  staff  corps,  there  shall  be  excluded 
from  consideration  those  officers  carried  by  law 
as  additional  numbers,  including  staff  officers 
heretofore  permanently  commissioned  with  the 
rank  of  rear  admiral,  and  nothing  contained 
herein  shall  be  held  to  reduce  below  that  here- 
tofore authorized  by  law  the  number  of  officers 
in  any  grade  or  rank  in  the  staff  corps. ' '  (As  to 
the  total  authorized  number  of  enlisted  men, 
see  note  to  sec.  1417,  R.  S.) 

The  act  of  Mav  22,  1917  (40  Stat.,  84),  as 
amended  by  act  of  July  1, 1918  (40  Stat.,  715), 
which  authorized  a  temporary  increase  in  the 
number  of  enUsted  men,  pro\dded  (sec.  4)  for  the 
temporary  appointment  and  promotion  of  addi- 
tional commissioned  officers,  based  upon  such 
temporary  increase  in  the  enlisted  strength,  such 
additional  tempoi-ary  officers  to  be  distributed 
between  the  various  grades  and  ranks,  not  above 
lieutenant  commander,  in  accordance  with  the 
provisions  of  the  act  of  August  29,  1916  (above 
cited).  The  same  act  and  section  further  pro- 
vided for  temporary  appointments  and  promo- 
tions to  fill,  during  the  period  of  the  war,  the 
deficiency  existing  prior  to  May  22,  1917,  in  the 
total  number  of  commissioned  officers  authorized 
by  the  act  of  August  29, 1916,  and  ' '  that  lieuten- 
ants (junior  grade)  and  ensigns  may  be  consid- 
ered eligible  for  temporary  promotions  to  the 
grades  of  Lieutenant  and  Lieutenant(jumor  grade) 
without  regard  to  length  of  service  in  grade." 

The  act  of  July  11,  1919  (41  Stat.,  137,  138), 
which  temporarily  increased  the  enlisted 
strength  for  specified  periods,  provided  that 
during  such  periods  the  "average  number"  of 
commissioned  officers  of  the  line,  including 
temporary  officers  and  reserves  on  active  duty, 
shall  not  exceed  4  per  centum  of  the  total  tem- 
porary authorized  enlisted  strength  of  the 
Regular  and  Temporary  Navy,  and  members 
of  the  Naval  Reserve  Force  in  enlisted  ratings 
on  active  duty;  with  a  pro\-iso  that  nothing  in 
said  act  "shall  be  construed  as  affecting  "the 
permanent  commissioned  strength  of  the  Navy 
as  authorized  bv  existing  law." 

The  act  of  June  4,  1920  (41  Stat.,  834)  pro- 
vided "That  the  number  of  commissioned 
officers  of  the  line,  permanent,  temporary,  and 
reserve  on  active  duty  shall  not  exceed  4  per 
centum  of  the  total  authorized  enlisted  strength 
of  the  Regular  Navy,"  with  the  pro\'iso  that 
nothing  therein  contained  should  be  construed 
as  reducing  the  permanent  commissioned 
strength  of  the  Regular  Na\'y  as  authorized  by 
existing  law. 


Ensigns  are  commissioned  as  such  from 
among  the  graduates  of  the  Naval  Academy 
(see  acts  Mar.  7,  1912,  37  Stat.,  73,  and  July  9, 
1913,  38  Stat.,  103),  and  the  appointment  of  12 
ensigns  each  year  from  among  the  boatswains, 
gunners,  machinists,  chief  boatswains,  chief 
gunners,  and  chief  machinists  in  the  Navy  was 
authorized  by  acts  of  ]\Iarch  3,  1903  (32  Stat., 
1197),  and  March  3,  1909  (35  Stat.,  771);  see 
also  acts  of  March  3,  1899,  section  12  (30  Stat., 
1007);  March  3,  1901  (31  Stat.,  1129);  and  April 
27,  1904  (33  Stat.,  346). 

Lieutenants  (junior  grade)  are  ap- 
pointed by  promotion  from  ensigns  who  have 
had  three  vears'  ser\dce  as  such  (act  Mar.  3, 
1899,  sec.  7,  30  Stat.,  1005).  By  act  of  June  4, 
1920,  section  5  (41  Stat.,  836)  it  was  provided 
that  until  June  30,  1923,  promotions  to  lieu- 
tenant (junior  grade)  and  lieutenant  may  be 
made  without  regard  to  length  of  service. 

Additional  ofla.cers  are  authorized  by 
various  enactments,  including  the  following: 
Advancement  of  officers  for  "eminent  and  con- 
spicuous conduct  in  battle  or  extraordinary 
heroism"  is  authorized  by  sections  1506-1507, 
Re^dsed  Statutes,  notwithstanding  that  the 
higher  grades  to  which  such  officers  may  be  so 
advanced  already  have  the  full  number  of  offi- 
cers specified  bv  law.  Bv  acts  of  March  3,  1901 
(31  Stat.,  1108)  and  June  16,  1906  (34  Stat.,  296), 
officers  so  advanced  are  to  be  carried  as  addi- 
tional to  the  numbers  of  each  grade  in  which 
they  serve.  By  sections  1508-1510,  Re\ased 
Statutes,  any  line  officer  receiving  the  thanks 
of  Congress  for  "highly  distinguished  conduct 
in  conflict  with  the  enemy,  or  for  extraordinary 
heroism  in  the  line  of  his  profession,"  may  be 
advanced  one  grade,  and  such  vote  of  thanks 
shall  be  held  "to  affect  such  officer  only." 
Retired  officers  detailed  for  the  command*  of 
squadrons  or  single  ships  in  time  of  war  may  be 
restored  to  the  active  list  if  they  receive  a  vote 
of  thanks  of  Congress  for  their  ser\'ices  and 
gallantrv  in  action  aa:ainst  the  enemv  (sec. 
1465,  R!  S.).  See  also  file  26521-iOO,  June  19, 
1920,  noted  below  under  "Effect  of  exceeding 
number  of  officers  allowed  in  anv  grade." 

The  act  of  March  3.  1901  (31  Stat.,  1108),  pro- 
vides that  no  promotion  shall  be  made  to  fill  a 
vacancy  occasioned  by  the  promotion,  retire- 
ment, (ieath,  resignation,  or  dismissal  of  any 
officer  who  is  an  additional  number  in  his  grade 
under  the  provisions  of  the  said  act;  and  sec- 
tion 1510,  Revised  Statutes,  provides  that  no 
promotion  shall  be  made  to  fill  a  vacancy  occa- 
sioned by  the  final  retirement,  death,  resigna- 
tion, or  dismissal  of  an  officer  who  has  received 
a  vote  of  thanks. 

Officers  on  the  active  list  of  the  line  who, 
under  the  provisions  of  section  5  of  the  Navy 
personnel  act  of  March  3,  1899  (.30  Stat.,  1005), 
perform  engineering  duty  on  shore  only,  were 
made  "additional  to  the  numbers  in  the  grades" 
in  which  they  were  serving  or  to  which  they 
might  be  promoted,  by  act  of  March  4,  1911  (36 
Stat.,  1267).  [Note:  Such  former  engineer  offi- 
cers are  now  made  available  by  law  for  any 
shore  duty  compatible  with  their  rank  and  grade. 
See  note  to  section  1390,  Revised  Statutes.] 

The  act  of  March  3, 1915  (38  Stat.,  939).  author- 
ized the  President  to  restore  to  the  active  list 


451 


Sec.  1363. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


officers  who  were  oompulsorily  retiretl  to  create 
vacamies  in  accordance  mth  section  9  of  the 
Navy  i)erst)nnol  act  approved  March  3,  1899  (;W 
Stat",  100(1),  and  provided  that  ofhcers  so  tran.s- 
ferrod  to  the  active  list  shall  be  carried  as  addi- 
tional numbers  in  the  grades  to  Avhich  trans- 
ferred or  thereafter  promoted.  Provision  for 
restoration  to  the  active  list  of  certain  desig- 
nated retired  officers,  as  additional  numbers  in 
grade,  waa  made  by  act  of  August  29,  1916  (39 
Stat.,  602). 

The  act  of  August  29,  1916  (39  Stat.,  580), 
pro^•ided  for  the  appointment  and  detail  of  line 
officers  of  the  Navy  for  engineering  duty  only, 
and  the  same  act  (39  Stat.,  578,  579)  provided 
that  such  officers,  and  officers  of  the  former 
Engineer  Corps  "who  are  restricted  by  law  to 
the  performance  of  shore  duty  only,"  shall, 
when  promoted  by  selection  to  the  grades  of 
commander,  captain,  and  rear  admiral,  "be 
carried  as  additional  numbers  in  grade." 

The  act  of  August  29, 1916  (39  Stat.,  582,  586), 
created  a  naval  flying  corps,  to  be  composed  in 

8 art  of  150  officers,  detailed  from  the  line  of  the 
avy  and  from  the  Marine  Corps,  or  appointed 
to  the  line  of  the  Navy  or  Marine  Corps,  for 
aeronautic  duties  only,  and  provided  that  said 
number  of  officers  shall  be  in  addition  to  the 
total  number  of  officers  provided  by  law  "for 
the  other  branches  of  the  naval  service." 

Warrant  oflB.cers  and  commissioned  war- 
rant officers. — As  to  number  of,  authorized 
by  law,  see  note  to  section  1405,  Revised  Stat- 
utes. 

Naval  Reserve. — The  Secretary  of  the 
Navy  is  authorized  to  establish  a  Ust  of  persons 
who  have  been  found  eligible  by  examination 
for  commissions  in  any  reserve  or  volunteer 
naval  force  hereafter  organized,  other  than  the 
Naval  Militia,  and,  when  exigency  demands,  the 
President  is  authorized  to  issue  commissions  in 
the  Regular  Navy  to  persons  so  qualified.  The 
President  is  also  authorized  to  commission  or 
warrant  former  officers  who  have  been  honora- 
bly discharged  from  the  Navy.  (Act  Feb.  16, 
1914,  aec.  21,  38  Stat.,  289.) 

The  act  of  August  29,  1916  (39  Stat.,  587), 
amended  by  acts  of  March  4, 1917  (39  Stat. ,  1174), 
April  25,  1917  (40  Stat.,  37),  April  25,  1917  (40 
Stat.,  38),  May  22,  1917  (40  Stat.,  84),  July  1, 
1918  (40  Stat.,  708-712).  and  June  4,  1920  (41 
Stat.,  834),  created  a  "Naval  Reserve  Force" 
and  provided  for  enrollment  therein,  for  "gen- 
eral service"  only,  of  former  officers  and  citizens 
of  the  United  States  or  of  the  insular  possessions 
and  aliens,  not  enemies,  who  have  declared 
their  intention  to  become  citizens,  who  "may 
be  ordered  into  active  serATice  in  the  Navy  by 
the  President  in  time  of  war  or  when,  in  his 
opinion,  a  national  emergency  exists";  said 
Naval  Reserve  Force  to  have  the  various  grades 
and  ranks,  not  above  the  rank  of  lieutenant 
commander,  corresponding  to  those  in  the  Navy. 

National  Naval  Volunteers. — Bv  act  of 
August  29,  1916  (39  Stat.,  595),  the  "National 
Naval  Volunteers"  was  created,  to  be  composed 
of  members  of  the  Naval  Militia,  "to  pro\dde  a 
force  for  use  in  any  emergency,  including  that 
of  actual  or  imminent  war,  requiring  the  use  of 
naval  forces  in  addition  to  those  of  the  Regular 
Navy."  By  act  of  July  1,  1918  (40  Stat.  708), 
all  laws  relating  to  the  Naval  Militia  and  Na- 


tional Naval  Volunteers  were  repealed  and  the 
President  was  authorized  to  transfer  as  a  class 
all  members  of  the  National  Naval  Volunteers 
to  the  Naval  Reserve  Force  or  Marine  Corps 
Reserve. 

The  Coast  Guard. — By  act  of  January  28, 
1915  (38  Stat.,  800),  amended  by  act  of  August 
29, 1916  (39  Stat.,  600),  the  Coast  Guard  was  es- 
tablished, to  "constitute  a  part  of  the  military 
forces  of  the  United  States, ' '  and  ' '  to  operate  as 
a  part  of  the  Navy,  subject  to  the  orders  of  the 
Secretary  of  the  Navy,  in  time  of  war  or  when 
the  President  shall  so  direct." 

The  Lighthouse  Service. — By  actof  August 
29,  1916  (39  Stat.,  602),  it  was  provided  that 
"the  President  is  hereby  authorized,  whenever 
in  his  judgment  a  sufficient  national  emergency 
exists,  to  transfer  to  the  service  and  jurisdiction 
of  the  Navy  Department,  or  of  the  War  Depart- 
ment, such  vessels,  equipment,  stations,  and 
personnel  of  the  Lighthouse  Service  as  he  may 
deem  to  the  best  interest  of  the  country." 

Coast  and  Geodetic  Survey. — By  act  of  May 
22,  1917,  section  16(40  Stat.,  87),  it  was  pro- 
vided ' '  that  the  President  is  hereby  authorized, 
whenever  in  his  judgment  a  sufficient  national 
emergency  exists,  to  transfer  to  the  service  and 
jurisdiction  of  the  War  Department,  or  of  the 
Navy  Department,  such  vessels,  equipment, 
stations,  and  personnel  of  the  Coast  and  Geo- 
detic Survey  as  he  may  deem  to  the  best  interest 
of  the  country." 

Public  Health  Service. — In  times  of  threat- 
ened or  actual  war  the  President  is  authorized 
in  his  discretion  to  utilize  the  Public  Health 
Service  in  such  manner  as  in  his  judgment  shall 
promote  the  public  interest  without  impairing 
the  efficiency  of  the  service  for  the  purposes  for 
which  created.  (Act  July  1,  1902,  sec.  4,  32 
Stat.,  713.) 

When  detailed  in  time  of  war  for  duty  with  the 
Navy,  officers  of  the  Public  Health  Service  shall 
be  subject  to  the  laws  prescribed  for  the  govern- 
ment of  the  Navy  (act  July  9,  1917,  40  Stat., 
242);  and  are  empowered  to  serve  on  naval 
courts-martial  (act  Oct.  6,  1917,  40  Stat.,  393). 

Acting  officers. — As  to  authority  for  ap- 
pointment of,  see  note  to  section  1410,  Revised 
Statutes. 

During  the  Spanish  War,  by  act  of  May  4, 
1898  (30  Stat.,  369),  the  President  was  author- 
ized, for  a  period  of  twelve  months,  in  case  of  an 
exigency,  to  appoint  officers  of  the  Line  and  staff 
not  above  the  rank  of  commander,  and  warrant 
officers,  and  officers  of  the  Marine  Corps  not 
above  the  rank  of  captain,  as  might  be  requisite; " 
such  officers  to  serve  only  during  the  continu- 
ance of  the  exigency  under  which  their  services 
were  required  in  the  then  existing  war.  (In 
this  connection,  see  22  Op.  Atty.  Gen.,  82;  and 
U.  S.  V.  Hite,  204U.  S.,343.) 

Number  of  officers  not  to  be  increased 
■without  explicit  legislation. — Legislation 
relating  to  the  Navy  should  not  be  construed 
as  impliedly  increasing  the  number  of  officers 
authorized  by  law,  where  no  such  result  was 
intended  by  Congress.  Thus  a  law  providing 
that  increased  rank  and  pay  should  be  conferred 
upon  certain  officers  on  the  active  list  who  had 
served  as  chiefs  of  bureaus  in  the  Navy  Depart- 
ment should  not  be  construed  as  creating  a 
vacancy  in  the  list  of  officers  of  their  former 


452 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1364. 


rank,  with  a  resultant  increase  in  the  total  num- 
ber of  officers.  Such  provision  was  intended 
to  affect  only  the  officers  for  whose  benefit  it 
was  enacted,  and  not  to  increase  the  number  of 
officers  in  the  Navy.  When  Congress  has  seen 
fit  to  make  increases  in  the  number  of  officers  in 
the  Navy,  either  generally  or  in  particular  corps 
or  grades,  it  has  generally  used  specific  and  apt 
language  to  accomplish  that  object.  (28  Op. 
Atty.  Gen.,  526;  see  also  note  to  sec.  421,  R.  S.) 

In  accordance  with  the  above  opinion  of  the 
Attorney  General,  held,  that  an  act  of  Congress 
providing  that  pharmacists  in  the  Navy  having 
six  years'  service  as  such  should  be  commis- 
sioned as  chief  pharmacists,  which  grade  had 
not  theretofore  existed,  was  intended  merely 
to  confer  increased  rank  and  emoluments  upon 
officers  who  had  served  a  specified  period  as 
pharmacists,  and  not  to  increase  the  total  num- 
ber of  such  officers;  accordingly,  the  law  having 
previously  limited  the  total  number  of  pharma- 
cists to  25,  this  limitation  must  be  held  to 
embrace  the  new  grade  of  chief  pharmacist,  and 
said  grades  of  pharmacist  and  chief  pharmacist 
combined,  should  be  limited  to  a  maximum  of 
25.  (File  27213-3,  May  6,  1913;  see  also 
5460-81,  May  12,  1916,  and  see  note  to  sec. 
1405,  R,  S.) 

Effect  of  exceeding  number  of  officers 
alloAvedin  any  grade. — The  law  fixes  the  max- 
mum  number  of  officers  in  various  grades  in  the 
Navy;  and  where  the  number  in  each  of  the 
grades  is  full ,  no  newappointment,  either  original 
or  by  promotion,  can  be  made  in  those  grades, 
without  either  increasing  the  number  allowed  by 
law,  or  removing  some  other  officer.  Therefore, 
the  nomination  and  confirmation  of  an  officer 
for  appointment  to  a  grade  already  full  (com- 
mander), vice  M,  "promoted,"  at  a  t  me  when 
M  had  been  nominated  for  promotion  but 
not  confirmed  and  was  therefore  still  in  the 
grade  of  commander,  must  either,  first,  increase 
the  number  of  commanders  beyond  that  allowed 
by  law ;  or  second ,  operate  to  remove  M  from  the 
Navy;  or  third,  operate  to  confirm  M  as  a  cap- 
tain; or,  fourth,  be  ineffectual  or  void.  (23  Op. 
Atty.  Gen.,  30,  holding  that  in  this  case  effect  of 
nomination  and  confirmation  of  successor  to  M, 
was  to  confirm  M's  nomination  as  captain. 
Compare  13  Op.  Atty.  Gen.,  44,  noted  under 
sec.  1457,  R.  S.,  '"Correction  of  erroneous  re- 
tirement.") 

The  President  has  not  power,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  increase 
the  number  of  commanders  in  the  Navy  beyond 
the  number  expressly  fixed  and  limited  by  Con- 
gress. ^Vhile  the  Constitution  gives  the  Presi- 
dent the  power,  with  the  advice  and  consent  of 
the  Senate,  to  appoint  officers,  it  does  not  confer 
power  to  create  such  offices  as  these,  nor  to 
increase  their  number.  He  may  appoint  such 
officers  as  are  created  by  the  Constitution  or  by 
law,  but  there  can  be  no  doubt  of  the  power  of 
Congress  to  fix  and  limit  the  number  of  such 
officers  as  these,  and  such  action  is  binding  upon 


both  the  Executive  and  the  Senate,  and  can  be 
changed  by  Congress  alone.  (23  Op.  Atty. 
Gen.,  30.) 

The  act  of  August  29,  1916  (39  Stat.,  576), 
while  it  does  not  in  numbers  fix  the  comple- 
ment of  the  various  commissioned  grades  and 
ranks  of  the  Navy,  does  specify  a  definite 
method  of  determining  the  maximum  number 
of  such  officers  by  mathematical  calculation. 
The  result  of  such  calculation  is  the  fixed  num- 
ber of  officers  allowed  by  law  in  each  grade  and 
rank  for  the  period  covered  thereby  and  the 
number  thus  arrived  at  for  any  period  can  not 
be  exceeded  during  said  period  any  more  than 
if  the  law  had  specified  same  in  actual  figures. 
The  power  of  Congress  to  reduce  the  number 
of  officers  is  undoubted.  Accordingly,  should 
subsequent  computations  result  in  decreasing 
the  number  of  officers  as  previously  fixed,  it  is 
not  unlikely  that  the  excess  number  of  officers 
would  be  legislated  out  of  office,  in  the  absence 
of  further  legislation.  (File  28687-19,  Jan.  24, 
1917,  citing  23  Comp.  Dec,  33.  But  see  file 
26521-400,  June  19,  1920,  holding  that  officers 
found  to  be  in  excess  of  the  authorized  number 
in  any  grade,  as  the  result  of  new  computations, 
should  be  carried  as  additional  numbers  in 
grade  until  such  time  as  the  number  is  reduced 
by  death,  resignation,  promotion,  retirement, 
etc.,  no  provision  having  been  made  by  Con- 
gress for  the  reduction  of  such  officers  to  lower 
grades,  and  the  President  not  being  required 
or  directed  by  law  to  revoke  their  commissions. 

As  to  removal  of  officer  by  noraination  and 
confirmation  of  successor,  see  note  to  Constitu- 
tion, Art.  II,  sec.  2,  clause  2,  under  "VIII. 
Power  of  Removal." 

Vacancies  necessary  prior  to  promo- 
tion.— "Officers  subject  to  examination  before 
promotion  to  a  grade  limited  in  number  by  law 
shall  not  be  entitled  to  examination  in  such  a 
sense  as  to  give  increase  of  pay  until  designated 
by  the  Secretary  of  the  Navy  to  fill  vacancies 
in  the  higher  grade."     (Sec.  1495,  R.  S.) 

Where  an  officer  in  a  grade  Limited  in  num- 
ber by  law,  which  grade  counting  him  is  full, 
becomes  due  for  promotion  to  fill  a  vacancy  in 
a  higher  grade,  but  his  promotion  is  delayed, 
a  successor  to  such  officer  can  not  lawfully  be 
appointed  until  the  latter's  promotion  is  con- 
summated. (File  26521-67,  June  4,  1913; 
26521-67:1,  Dec.  4,  1913;  see  also  11  Comp. 
Dec,  764;  and  file  28762-277,  Dec  10,  1917.) 

The  act  of  June  22,  1874  (18  Stat.,  191)  [noted 
under  section  1561,  Revised  Statutes],  provid- 
ing that  officers  on  promotion  in  certain  cases 
shall  be  entitled  to  the  pay  of  the  grade  to  which 
promoted  from  date  of  rank  therein,  does  not 
apply  so  as  to  entitle  officers  to  pay  in  the 
higher  grade  from  date  of  rank  when  it  appears 
that  there  were  no  vacancies  in  the  higher  grade 
on  that  date.     (23  Op.  Atty.  Gen.,  30,  40.) 

See  note  to  section  1364,  Revised  Statutes, 
under  "Vacancies  necessary  prior  to  promo- 
tion." 


Sec.  1364.  [When  number  of  line  officers  may  be  exceeded.     Obsolete.] 


This  section  provided  as  follows: 

"Sec.  1364.  The  provisions  of  the  foregoing 
section  shall  not  have  the  effect  to  vacate  the 
commission    of     any     lieutenant-commander. 


lieutenant,  master,  or  ensign  appointed  accord- 
ing to  law,  in  excess  of  the  respective  number 
therein  fixed ;  nor  to  preclude  the  advancement 
of  any  officer  to  a  higher  grade,  for  distinguished 


453 


Sec.   1366. 


Pt.2.  RE  VISED  STAT  UTES. 


The  Navy. 


conduct  in  battle,  or  for  extraordinary  heroism, 
under  the  provisions  of  sectiona  liftooii  hundred 
and  six  and  lifteen  hundred  and  eight." — (16 
July,  1862,  c.  183,  s.  9,  v.  12,  p.  584.  25  July, 
1866,  c.  231,  S.S.  ],  2.  v.  14,  p.  222.) 

It  was  rendered  obsolete  by  the  Navy 
personnel  act  of  March  3,  1899,  section  7  (30 
Stat.,  1005),  which  superseded  "the  foregoing 
section"  referred  to  herein,  namely,  section 
1363,  Revised  Statutes,  by  making  new  and 
complete  provisions  as  to  the  number  of  officers 
who  should  compose  the  active  list  of  the  line 
of  the  N^u-y. 

Provisions  relating  to  the  advancement 
of  ofl&cers  to  higher  grades  for  distinguished 
conduct  in  battle  or  for  extraordinary  heroism, 
notwithstanding  that  such  grades  already  had 
the  full  number  of  ofiicers  specified  by  law, 
were  contained  in  sections  1507  and  1509,  Re- 
vised Statutes,  and  the  acts  of  March  3,  1901 
(31  Stat.,  1108)  and  June  16, 1906  (34  Stat.,  296), 
noted  above,  under  section  1363,  Revised  Stat- 
utes. Also,  the  act  of  March  3,  1903  (32  Stat., 
1197,  1198),  noted  above  under  section  1363, 
Revised  Statutes,  after  increasing  the  number 
of  officers  in  certain  gratles  of  the  active  list  of 
the  line,  and  fixing  a  new  total  for  such  grades, 
provided  that  "nothing  contained  in  this  act 
shall  affect  the  officers  of  the  Navy  who  may 
have  been  or  may  hereafter  be  advanced  in 
rank  under  existing  provisions  of  law  by  which 


they  become  extra  numbers  in  their  respective 
graxles,  or  operate  to  vacate  the  commi.ssion  of 
any  officers  now  in  the  service."  See  also  note 
to  section  1363,  Revised  Statutes,  under  "Effect 
of  exceeding  number  of  ofiicers  allowed  in  any 
grade." 

Vacancies  necessary  prior  to  promo- 
tion.— Section  1364  provides  that  the  provisions 
of  the  foregoing  section  shall  not  have  the  effect 
to  vacate  the  commission  of  certain  grades  of 
officers  appointed  according  to  law,  in  excess 
of  the  respective  number  therein  fixed — thus, 
by  a  familiar  rule  of  construction,  implying  that 
the  commissions  of  other  officers  in  excess  of 
the  number  fixed,  might  be  thereby  vacated. 
(23  Op.  Atty.  Gen.,  30.) 

Sections  1364,  1506,  and  1507  authorize  the 
advancement  of  officers  of  the  Navy  to  higher 
grades  for  eminent  and  conspicuous  conduct  in 
battle  or  extraordinary  heroism,  even  though 
in  excess  of  the  number  in  such  grade  as  fixed 
by  statute.  These  sections  do  not  apply  in  the 
cases  of  officers  promoted  in  turn  to  fill  vacan- 
cies, and  such  promotions  could  not  be  sus- 
tained if  they  increased  the  number  of  officers 
of  these  grad.es  beyond  the  number  fixed  by 
law.     (23  Op.  Atty.  Gen.,  30,  39.) 

See  note  to  section  1363  Revised  Statutes, 
under  "Vacancies  necessary  prior  to  promo- 
tion." 


Sec.  1365.  [Selection  of  rear  admirals  during  war.]  During  war  rear- 
admirals  shall  be  selected  from  those  officers  on  the  active  list,  not  below  the 
grade  of  commanders,  who  shall  have  eminently  distinguished  themselves  by 
courage,  skill,  and  genius  in  their  profession;  but  no  officer  shall  be  so  promoted, 
under  this  provision,  unless,  upon  recommendation  of  the  President  by  name, 
he  has  received  the  thanks  of  Congress  for  distinguished  service. — (16  July, 
1862,  c.  183,  s.  7,  v.  12,  p.  584.) 


Examinations  prior  to  promotion  on  the  active 
list  are  required  by  sections  1493-1497, 
Revised  Statutes.  See  also  section  1366, 
Revised  Statutes,  belov,-. 

In  time  of  war  the  President  may,  by  and  with 
the  advice  and  consent  of  the  Senate, 
detail  any  officer  on  the  retired  list,  not 
below  the  grade  of  commander,  for  the 
command  of  a  squadron,  with  the  rank  and 
title  of  "flag  officer";  and  retired  officers 
so  detailed  may  be  restored  to  the  active 
list  if  they  receive  a  vote  of  thanks  of 
Congress.     (Sees.  1463-1465,  R.  S.) 

Temporary  promotions  to  all  grades  in  the 
Navy,  "during  the  period  of  the  present 
war,"  were  authorized  by  act  of  May  22, 
1917,  section  4  (40  Stat.,  85),  as  amended 
by  act  of  July  1,  1918  (40  Stat.,  715,  716.) 

President  may  select  any  officer  not  below 
the  grade  of  commander  on  the  active  list 
of  the  Navy  and  assign  him  to  the  com- 


mand of  a  squadron,  with  the  rank  and 
titleof  "flagoflicer. "     (Sec.  1434,  R.  S.) 

Thanks  of  (Congress,  effect  of:  See  sections  1465, 
1508-1510,  Revised  Statutes.  Persons  who 
have  by  name  received  the  thanks  of 
Congress  are  entitled  to  the  privilege  of 
admission  to  the  floor  of  the  House  of 
Representatives.  (See  Rules  of  the  House 
of  Representatives.) 

The  act  of  August  29,  1916  (39  Stat.,  578),  pro- 
vides that  "hereafter  all  promotions  to  the 
grades  of  commander,  captain,  and  rear  ad- 
miral of  the  line  of  the  Navy,  including  the 
promotion  of  those  captains,  commanders, 
and  lieutenant  commanders  who  are,  or  may 
be,  carried  on  the  Navy  list  as  additional 
to  the  numbers  of  such  grades,  shall  be  by 
selection  only  from  the  next  lower  respec- 
tive grade  upon  the  recommendation  of  a 
board  of  naval  officers  as  herein  provided." 


Sec.    1366.   [Promotion  to  rear  admiral  during  peace.     Superseded.] 


This  section  provided  as  follows: 
"Sec.   1366.  During  peace,  vacancies  in  the 
grade  of  rear-admiral  shall  be  filled  by  regular 
promotion  from  the  list  of  commodores,  sub- 


ject to  examination  according  to  law." — (16 
July,  1862,  c.  183,  s.  7,  v.  12,  p.  584.) 

It  was  superseded  bv  the  act  of  March  3, 
1899,  section  7  (30  Stat.,  1005),  which  abolished 


454 


The  Navy. 


Pt.2.  RE  VISED  STAT  UTES . 


Sec.  1368. 


the  grade  of  commodore  on  the  active  list  of 
the  Navy.  (See  note  to  sec.  1362,  R.  S.) 
Thereafter,  promotions  to  the  grade  of  rear  ad- 
miral were  made  by  seniority  from  the  grade 
of  captain.    (See  sec.  1458,  R.  S.) 


New  provisions  for  promotion  to  the 
grade  of  rear  admiral  were  contained  in  the 
act  of  August  29,  1916  (39  Stat.,  578),  noted 
under  section  1365,  above. 

See  also  sections  1434,  1463,  1464,  and 
1497,  Revised  Statutes. 


Sec.  1367.  [Secretaries  to  Admiral  and  Vice  Admiral.]  The  Admiral  and 
Vice  Admiral  shall  each  be  allowed  a  secretary,  who  shall  be  entitled  to  the 
rank  and  allowances  of  a  lieutenant  in  the  Navy. — (21  Dec.  1864,  c.  6,  s.  2, 
V.  13,  p.  420.  16  May,  1866,  c.  84,  v.  14,  p.  48.  25  July,  1866,  c.  231,  s.  6, 
V.  14,  p.  223.     2  Mar.,  1867,  c.  174,  s.  1,  v.  14,  p.  516.) 


Appointments  from  civil  life  of  secretaries  or 
clerks  to  the  Admiral  or  Vice  Admiral  when 
on  sea  service  were  prohibited  by  act  of  May 
4, 1878  (20  Stat.,  50) ,  which  further  provided 
that  an  officer  not  above  the  grade  of  lieu- 
tenant shall  be  detailed  to  perform  the 
duties  of  secretary  to  the  Admiral  or  Vice 
Admiral  when  on  sea  service. 
Pay  of  secretaries  to  the  Admiral  and  Vice  Ad- 
miral was  fixed  at  $2,500  per  annum  by  sec- 
tion 1556,  Revised  Statutes. 
Secretaries  and  clerks  are  not  petty  officers  of 

the  Navy.  (See  sec.  1410,_R.  S.) 
See  note  to  section  1362,  Revised  Statutes,  as 
to  the  grades  of  Admiral  and  Vice  Admiral 
in  the  Navy. 
Appointment  of  secretary. — The  appoint- 
ment of  secretary  allowed  the  Admiral  of  the 
Navy  by  section  1367,  Revised  Statutes,  does 
not  belong  to  the  President  with  the  advice  and 
consent  of  the  Senate,  but  devolves  upon  the 
Admiral  as  one  personal  to  himself,  and  the  con- 
temporaneous construction  of  the  statute  and 
uniform  practice  thereunder  by  the  executive 
branch  of  the  Government  have  accorded  with 
this  view.  (19  Op.  Atty  Gen.,  589.  As  to  ap- 
pointment of  officers  in  general,  see  note  to  Con- 
stitution, Art.  II,  sec.  2,  clause  2.) 

It  can  not  be  supposed ,  in  the  absence  of  ex- 
press pro\'ision,  that  Congress  wished  to  deprive 
the  Admiral  and  Vice  Admiral  of  the  important 
privilege  of  selecting  their  confidential  assist- 
ants, especially  when  such  a  privilege  had 
always  been  accorded  to  officers  inferior  to 
them  in  rank.     (19  Op.  Atty.  Gen.,  589.) 

The  office  of  secretary  to  the  Admiral  is  not  an 
independent  office  to  be  filled  without  regard  to 
the  Admiral's  nomination  and  for  a  life  term 
like  that  of  a  lieutenant  in  the  line.  By  section 
1362,  Revised  Statutes,  it  is  provided  that  when 
the  office  of  Admiral  becomes  vacant,  the  grade 
shall  cease  to  exist.  Thus,  if  the  foregoing 
opinion  were  not  correct,  we  should  have  a  sec- 
retary to  the  Admiral  without  an  Admiral.  It 
would  then  be  a  puzzling  question  to  define  the 
scope  of  his  official  duties.  Congress  could  not 
have  intended  such  an  anomalous  state  of 
affairs.     (19  Op.  Atty.  Gen.,  589.) 


Section  1410,  Revised  Statutes,  provides  that 
"all  officers  not  holding  commissions  or  war- 
rants, or  who  are  not  entitled  to  them,  except 
such  as  are  temporarily  appointed  to  the  duties 
of  a  commissioned  or  warrant  officer,  and  except 
secretaries  and  clerks,  shall  be  deemed  petty 
officers,"  etc.  The  necessary  implication  of 
this  section  is  that  secretaries  are  officers  not 
holding  commissions  or  warrants,  and  are 
not  entitled  to  them.  (19  Op.  Atty.  Gen., 
589.) 

When  Congress  gave  the  Admiral  and  Vice 
Admiral  secretaries,  it  had  been  the  established 
practice  in  the  Navy  Department  for  40  years 
to  allow  commanders  of  fleets,  squadrons,  and 
divisions  to  appoint  secretaries  to  serve  them 
while  in  command;  and  such  secretaries  were 
staff  officers  with  the  relative  rank  of  lieutenant. 
Without  any  legislation,  therefore,  the  Admiral 
and  Vice  Admiral,  while  in  command  on  the 
sea,  would  have  been  allowed  secretaries  on 
their  own  appointment.  The  statutory  pro- 
vision embodied  in  section  1367  simply  ex- 
tended the  privilege  of  a  secretary  to  these 
high  officers  of  the  Navy  for  their  shore  service 
also.     (19  Op.  Atty.  Gen.,  589.) 

Pay  of  secretary. — The  position  of  secre- 
tary to  the  Admiral  was  necessarily  in  abeyance 
until  the  grade  of  Admiral  was  revived. 
However,  when  the  grade  was  revived,  the 
provisions  of  law  relating  to  the  secretary  to 
the  Admiral  became  again  operative.  Not 
being  a  commissioned  officer,  his  pay  was  not 
affected  by  the  Navy  personnel  act  of  March 
3,  1899.  Accordingly,  he  is  entitled  to  a  salary 
of  $2, 500  per  annum  under  section  1556,  Revised 
Statutes,  and  to  the  allowances  of  a  lieutenant 
in  the  Navy,  under  section  1367.  (6  Comp. 
Dec,  828.) 

By  special  enactment  of  Congress  the 
appointment  was  authorized,  as  an  assistant 
paymaster  in  the  Na\y,  of  Leonard  G.  Hoffman, 
secretary  to  the  late  Admiral  of  the  Navy,  as 
an  additional  number  in  grade,  the  services  of 
said  Hoffman  as  secretary  to  be  credited  to 
him,  for  purposes  of  pay,  as  service  in  the  Navy. 
(Act  Mar.  4,  1917,  39  Stat.,  1184). 


Sec.  1368.  [Medical  Corps ;  organization  of.     Superseded.] 


This  section  provided  as  follows: 

"Sec.  13(i8.  The  active  list  of  the  Medical 
Corps  of  the  Na\y  shall  consist  of  fifteen  medical 
directors,  fifteen  medical  inspectors,  fifty  sur- 


geons, and  one  hundred  assistant  surgeons." — 
(3  Mar.,  1871,  c.  117,  s.  5,  v.  16,  p.  535.) 

It  was  superseded  by  a  clause  in  the  naval 
appropriation  act  of  August  5, 1882  (22  Stat.,  285), 


455 


Sec.  1368. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


which  provided  that "  the  active  list  of  the  Med- 
ical Corps  of  the  Navy  shall  hereafter  consist 
of  fifteen  medical  directors,  fifteen  medical 
ins])ecti)rs,  fifty  surgeons,  and  ninety  assistant 
and  jKU'^^cd  as.-<istant  surLreons." 

The  number  of  oflB.cers  was  increased 
bv  act  of  June  7, 1900  (;U  Stat.,  697),  which  pro- 
vided that  ■  ■  the  active  list  of  surgeons  shall  here- 
after consist  of  fifty-five,  and  that  of  passed 
assistant  and  assistant  surgeons  of  one  hundred 
and  ten." 

A  further  increase  was  made  by  the  act 
of  March  3,  liKW  (32  Stat.,  1197),  which  provided 
that  "the  grades  of  the  active  list  of  the  Navy 
hereinafter  designated  shall  be  so  increased  that 
there  shall  be  *  *  *  thirty  additional  sui'- 
geons  vvith  the  rank  of  lieutenant  commander, 
m  all  eighty-five;  one  hundred  and  twenty 
additional  passed  assistant  and  assistant  sur- 
geons, with  the  rank,  respectively,  of  Lieuten- 
ant, and  lieutenant  (junior  grade),  in  all  two 
hundred  and  thirty;  *  *  *  and  not  more 
than  twenty-five  assistant  surgeons  *  *  * 
in  addition  to  those  necessary  to  fill  vacancies 
in  said  grades,  shall  be  appointed  in  any  one 
calendar  year." 

A  further  increase  was  made  by  the  act  of 
June  12,  1916,  section  4  (39  Stat.,  224),  entitled 
"An  act  to  authorizi  and  empower  officers  and 
enlisted  men  of  the  Navy  and  Marine  Corps  to 
Berve  under  the  Government  of  the  Republic  of 
Haiti,  and  for  other  purposes,"  which  provided 
for  the  follo\ving  increase  in  the  Navy:  ] 
surgeon,  2  pas.sed  assi.stant  surgeons,  5  hospital 
stewards,  and  13  hospital  apprentices,  first  class. 

The  number  of  officers  was  again  in- 
creased by  act  of  August  29, 1916  (39  Stat. ,  576) , 
which  provided  that  "the  total  authorized 
number  of  commissioned  officers  of  the  Medical 
Corps  shall  be  sixty-five  one-hundred ths  of  one 
per  centum  of  the  total  authorized  number  oi 
the  officers  and  enlisted  men  of  the  Navy  and 
Marine  Corps,  including  midshipmen.  Hospital 
Corps,  prisoners  undergoing  sentence  of  dis- 
charge, enlisted  men  detailed  for  duty  with  the 
Naval  Militia,  and  the  Flying  Corps." 

The  same  act  (39  Stat.,  577^  pro\dded  that 
"the  total  number  of  commissioned  officers 
of  the  active  list  of  the  following  mentioned 
staff  corps  at  any  one  time,  exclusive  of  com- 
missioned warrant  officers,  shall  be  distributed 
in  the  various  grades  of  the  respective  corps 
as  follows:  Medical  Corps:  One-half  medical 
directors  with  the  rank  of  rear  admiral  to  four 
medical  directors  with  the  rank  of  captain,  to 
eight  medical  inspectors  with  rank  of  com- 
mander, to  eighty-seven  and  one-half  in  the 
grades  below  medical  inspector  *  *  *. 
vVTien  there  is  an  odd  number  of  officers  in  the 
g;rade  or  rank  of  rear  admiral  in  the  line  or 
m  each  corps,  the  lower  division  thereof  shall 
include  the  excess  in  number,  except  where 
there  is  but  one.  ^\^lenever  a  final  fraction 
occurs  in  computing  the  authorized  number  of 
any  corps,  grade  or  rank  in  the  naval  service, 
the  nearest  whole  number  shall  be  regarded  as 
the  authorized  number:  Provided,  That  at 
least  one  officer  shall  be  allowed  in  each  grade 
or  rank.  For  the  purpose  of  determining  the 
authorized  number  of  officers  in  any  grade  or 
rank  of  the  Une  or  of  the  staff  corps,  there  shall 
be  excluded  from  consideration  those  officers 


carried  by  law  as  additional  numbers,  including 
staff  officers  heretofore  permanently  commis- 
sioned with  the  rank  of  rear  admiral,  and  noth- 
ing contained  herein  shall  be  held  to  reduce 
below  that  heretofore  authorized  by  law  the 
number  of  officers  in  any  grade  or  rank  in  the 
staff  cor])s." 

In  the  same  act  (39  Stat.,  581)  it  was  provided 
that  "hereafter  the  authorized  number  of  sur- 
geons in  the  United  States  Navy  be,  and  it  is 
hereby,  increased  by  one;  and  that  hereafter 
the  Secretary  of  the  Navy  be,  and  he  is  hereby, 
authorized  to  detail  one  or  more  officers  of  the 
Medical  Corps  of  the  United  States  Navy  for 
duty  with  the  Military  Relief  Di^^.8ion  of  the 
American  National  Red  Cross.  " 

Distribution  of  medical  officers  between 
lower  grades. — In  the  distribution  of  medical 
officers  between  the  grades  below  medical 
inspector  under  the  act  of  August  29,  1916,  the 
following  numbers  fixed  by  prior  laws  should 
be  regarded  as  established  by  law  and  not 
to  be  reduced  in  consequence  of  anything 
contained  in  the  act  of  August  29,  1916:  87 
in  the  grade  of  surgeon  and  232  in  the  grades 
of  passed  assistant  and  assistant  surgeon. 
There  is  no  fixed  dLstribution  between  the 
grades  of  passed  assistant  and  assistant  sur- 
geon, except  for  the  specific  authorization  of 
two  passed  assistant  surgeons  contained  in  the 
act  of  June  12,  1916,  section  4,  above  cited. 
Subject  to  these  restrictions,  the  increase  in  the 
grades  of  the  Medical  Corps  below  medical 
inspector  resulting  from  the  act  of  August  29, 

1916,  may  be  distributed  among  the  three  lower 
grades  in  such  proportions  as  may,  in  the  discre- 
tion of  the  Secretary  of  the  Navy,  best  serve 
the  interests  of  the  Navy.  (File  27223-37, 
Mar.  20,  1918.  See  also  note  to  sec.  1376, 
R.  S.) 

The  temporary  appointment  of  addi- 
tional officers  during  the  period  of  the  exist- 
ing war  was  authorized  by  the  act  of  May  22, 

1917,  section  4  (40  Stat.,  85),  as  amended  by 
act  of  July  1,  1918  (40  Stat.,  715),  which  also 
authorized  temporary  appointments  and  pro- 
motions to  fill,  during  the  period  of  the  war,  the 
deficiency  existing  prior  to  May  22,  1917,  in  the 
total  number  of  commissioned  officers  author- 
ized by  the  act  of  August  29,  1916. 

Acting  assistant  surgeons,  not  to  exceed 
twenty-five  may  be  appointed  by  the  President 
for  temporary  service  (act  May  4, 1898,  30  Stat., 
380);  and  such  acting  assistant  surgeons  as  the 
exigencies  of  the  service  may  require,  may  be 
appointed  by  the  Secretary  of  the  Navy  for  tem- 
porary service  in  case  of  war.  (Sec.  1411,  R.  S., 
as  amended  by  act  Feb.  15,  1879,  sec.  2,  20 
Stat.,  295;  see  also  note  to  sec.  1410,  R.  S.) 

A  Dental  Corps,  to  be  a  part  of  the  Medical 
Department  of  the  Naw,  was  authorized  by  the 
act  of  August  22,  1912  (37  Stat.,  344),  which  was 
superseded  by  new  proAOsions  on  the  same  sub- 
ject contained  in  the  act  of  August  29,  1916 
(39  Stat.,  573),  which  was  in  turn  superseded 
by  act  of  July  1,  1918  (40  Stat.,  708). 

A  dental  surgeon  in  the  Navy  for  duty 
at  the  Naval  Academy  was  authorized  by 
act  of  March  4, 1913  (37  Stat.,  891),  as  amended 
by  act  of  July  1, 1918  (40  Stat.,  709),  as  a  special 
provision  for  the  civilian  dentist  then  employed 
at  the  Naval  Academy. 


456 


The  Navy. 


Pt.2.   REVISED  STATUTES. 


Sec.   1368. 


A  Medical  Reserve  Corps,  to  be  a  con- 
stituent part  of  the  Medical  Department  of  the 
Navy,  was  established  by  the  act  of  August  22, 
1912  (37  Stat.,  344),  "  under  the  same  provisions, 
in  all  respects  (except  as  may  be  necessary  to 
adapt  the  said  provisions  to  the  Navy),  as  those 
providing  a  Medical  Reserve  Corps  for  the 
Army."  This  law  was  repealed  and  provision 
for  transfer  of  Medical  Reserve  Corps  officers  to 
the  Naval  Reserve  Force  was  made  by  act  of 
July  1,  1918  (40  Stat.,  708). 

A  Navy  Dental  Reserve  Corps  wa=i 
authorized  by  the  act  of  March  4,  1913  (37  Stat., 
903),  to  be  organized  and  operated  under  the 
provisions  of  law  providing  for  the  Navy  Med- 
ical Reserve  Corps.  This  act  was  superseded  by 
new  provisions  on  the  same  subject  contained 
in  the  act  of  August  29,  1916  (39  Stat.,  574),  and 
the  latter  act  was  repealed  and  provision  made 
for  transfer  of  Dental  Reserve  Corps  officers  to 
the  Naval  Reserve  Force,  by  act  of  July  1,  1918 
(40  Scat.,  708). 

A  Hospital  Corps,  to  be  permanently 
attached  to  the  Medical  Department  of  the 
Navy,  was  established  by  act  of  June  17,  1898 
(30  Stat.,  474),  as  amended  by  acts  of  August 
22,  1912  (37  Stat.,  345),  and  August  29, 1916  (39 
Stat.,  572). 

A  Nurse  Corps  (female)  was  established 
by  the  act  of  May  13,  1908  (35  Stat.,  146). 

Public  Health  Service. — By  act  of  July 
1,  1902,  section  4  (32  Stat,  713)  it  was  provided 
that  "the  President  is  authorized,  in  his 
discretion,  to  utilize  the  Public  Health  and 
Marine-Hospital  Service  in  times  of  threatened 
or  actual  war  to  such  extent  and  in  such  manner 
as  shall  in  his  judgment  promote  the  public 
interest  without,  however,  in  any  wise  impair- 
ing the  efficiency  of  the  service  for  the  purposes 
for  which  the  same  was  created  and  is  main- 
tained." 

By  act  of  February  3,  1905  (33  Stat.,  650)  it 
was  provided  that  "said  Service  shall  remain 
under  the  jurisdiction  of  the  Treasury  Depart- 
ment until  otherwise  hereafter  specifically 
provided  by  law." 

By  resolution  of  July  9, 1917(40  Stat.,  242),  it 
was  provided  that ' '  when  officers  of  the  United 
States  Public  Health  Service  are  serving  on 
Coast  Guard  vessels  in  time  of  war,  or  are  de- 
tailed in  time  of  war  for  duty  with  the  Army 
or  Navy  in  accordance  with  law,  they  *  *  * 
shall  be  subject  to  the  laws  prescribed  for  the 
government  of  the  service  to  which  they  are 
respectively  detailed." 

By  act  of  October  6,  1917  (40  Stat.,  393)  com- 
missioned officers  of  the  Public  Health  Service 
were  authorized  to  serve  on  naval  courts-martial 
"when  actively  serving  under  the  Navy  De- 
partment in  time  of  war  or  during  the  existence 
of  an  emergency,  pursuant  to  law,  as  a  part  of 
the  naval  forces  of  the  United  States." 

The  designation  of  the  Public  Health  and 
Marine-Hospital  Service  was  changed  to  Public 
Health  Service  by  act  of  August  14,  1912  (37 
Stat.,  309). 

A  Naval  Reserve,  composed  of  persons 
who  have  been  found  qualified  by  examination 
for  commissions  in  any  reserve  or  volunteer 
naval  force  hereafter  organized,  other  than  the 
Naval  Militia,  is  authorized  by  the  act  of  Febru- 
ary 16,  1914  section  21  ^38  Stat.,  289);   and  the 


same  act  provides  that  when  exigency  demands 
the  President  is  authorized  to  issue  commis- 
sions in  the  Regular  Navy  to  persons  so  quali- 
fied; and  also  authorizes  the  President  to  com- 
mission or  warrant  former  officers  who  have  been 
honorably  discharged  from  the  Navy. 

As  to  other  auxiliary  naval  forces,  see  note 
to  section  1363,  Revised  Statutes. 

Number  of  oflBlcers  not  to  be  increased 
■without  explicit  legislation.  (See  note  to 
sec.  1363,  R.  S.) 

Passed  assistant  surgeons. — Section  1368, 
Revised  Statutes,  did  not  include  the  grade  of 
passed  assistant  surgeon  as  a  part  of  the  Medical 
Corps.  However,  by  section  1556,  Revised 
Statutes,  •  provision  was  made  for  the  pay  of 
passed  assistant  surgeons  at  a  higher  rate  than 
that  allowed  assistant  surgeons  by  the  same 
section;  it  was  also  provided  by  said  section 
that  "assistant  surgeons  of  three  years'  service, 
who  have  been  found  qualified  for  promotion 
by  a  medical  board  of  examiners,"  shall  be 
allowed  "the  pay  of  passed  assistant  surgeons." 
Where  an  assistant  surgeon  had  successfully 
passed  his  examination  for  promotion,  the 
practice  was  for  the  Secretary  of  the  Navy  to 
notify  him  by  letter  that  the  report  of  the  board 
of  examiners  had  been  approved  by  the  depart- 
ment, and  from  that  date  he  would  be  regarded 
as  a  "passed  assistant  surgeon."  In  a  case 
where  this  procedure  was  followed,  it  was  held 
by  the  Supreme  Court  that  "the  place  of  passed 
assistant  surgeon  is  an  oflice,  and  the  notification 
by  the  Secretary  of  the  Na\7^  was  a  valid 
appointment  to  it,"  notwithstanding  that  the 
law  (see  sec.  1369,  R.  S.)  provided  that  all 
appointments  in  the  Medical  Corps  of  the  Navy 
should  be  made  by  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate.  (Moore 
V.  U.  S.,  95  U.  S.,  760,  see  also  Collins  v.  U.  S. 
14  Ct.  Cls.,  568.) 

In  the  organization  of  the  Medical  Corps  of 
the  Navy  a  passed  assistant  surgeon  and  an  as- 
sistant surgeon  were,  under  the  Revised  Stat- 
utes (sees.  1368, 1375, 1474, 1480,  and  1556),  offi- 
cers 01  one  and  the  same  grade,  but  belonging  to 
different  classes  in  such  grade.  A  passed  as- 
sistant surgeon  was  simply  an  assistant  surgeon 
who  had  been  officially  notified  that  he  had 
passed  successfully  the  examination  necessary 
to  be  imdergone  before  he  could  be  appointed  a 
full  surgeon  when  a  vacancy  might  occur.  If 
it  had  been  the  purpose  of  Congress  in  adopting 
the  Re\dsed  Statutes  to  make  passed  assistant 
surgeon  a  distinct  grade,  instead  of  a  mere  classi- 
fication under  a  grade,  the  same  particularity 
of  enactment  would  have  been  used  in  their  case 
as  in  the  case  of  passed  assistant  paymasters 
(sees.  1376,  1377,  1380,  and  1383)  and  passed  as- 
sistant engineers  (sees.  1390,  1392).  But  no 
such  legislation  is  to  be  found.  (19  Op.  Atty. 
Gen.,  169.) 

In  United  States  v._  Moore  (95  I^  S.,  760),  it 
was  held  that  a  nomination  by  the  President 
and  confirmation  by  the  Senate  were  not  neces- 
sary to  make  a  passed  assistant  surgeon  out  of  an 
assistant  surgeon,  a  position  that  could  not  have 
been  taken  if  there  had  been  such  a  grade  as 
passed  assistant  surgeon.  (19  Op.  Attv.  Gen., 
169.) 

The  reference  in  section  1480,  Re\ised  Stat- 
utes, to  the  "grades"  established  in  the  six  nre- 


457 


Sec.   1368. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


ccdiii"  eections,  which  inchided  mention  of 
piusscd  assistant  eurgeons,  was  an  error  on  the 
part  of  the  revisers,  and  could  not  beionstrued 
as  an  intention  to  make  a  change  in  the  organi- 
zation of  the  Medical  Corps  of  the  Navy  by  es- 
Uiblisliinp  passed  assistant  surgeon  as  a  separate 
grade.     (1!)  Op.  Atty.  Gen.,  1()9.) 

It  seems  vorv  clear  that  under  the  law,  as  it 
stood  when  the  act  of  August  5,  1882  (22  Stat., 
285),  was  passed,  there  was  no  such  "grade"  in 
the  Navy  as  that  of  pa.sscd  assistant  surgeon. 
That  act  was  intended  merely  to  cut  down  the 
number  of  assistant  and  j)asscd  a.^sistant  siu'- 
geons,  ''and  to  deduce  anything  more,  espe- 
cially anything  so  radical  as  a  change  in  the  or- 
ganization of  the  Medical  Corps,  by  establishing 
a  new  grade,  would  be  *  *  *  to  take  an  un- 
warrantable liberty  with  the  language  of  the 
statute.     (19  Op.  Atty.  Gen.,  169.). 

A  court  is  not  always  confined  to  the  written 
words  of  a  statute;  in  order  to  avoid  giving 
higher  pay  to  an  inferior  officer,  the  words  "  as- 
sistant siu'geon,"  as  used  in  a  statute  maybe 
cons^^rued  to  include  passed  assistant  surgeons, 
and  the  latter,  as  well  as  assistant  surgeons, 
thus  held  to  rank  wilh  captains  in  the  Army 
(U.  S.  V.  Farenholt,  206  U.  S.,  226.) 

[Passed  as.sistant  surgeons  now  clearly  consti- 
tute a  separate ' '  grade  "  in  the  Navy,  by  A-irtue  of 
theactofFebruaiy  13, 1897  (29  Stat.,  52G),  which 
proA^ided  that  "passed  assistant  surgeons  now 
borne  upon  the  Navy  Register  shall  be  commis- 
sioned as  such  by  the  President,  such  commis- 
sions to  bear  the  dates  upon  which  said  passed 
assistant  surgeons,  respectively,  received  their 
appointments  as  such;  and  hereafter  assistant 
surgeons  shall  be  regularly  promoted  and  com- 
missioned as  passed  assistant  surgeons,  and 
passed  assistant  surgeons  as  surgeons,  subject  to 
such  examinations  as  may  be  prescribed  by  the 
Secretary'  of  the  Navy.  "] 

Medical  attendance  allowed  persons  in 
Navy. — See  section  1586,  Revised  Statutes. 

Compulsory  medical  treatment  of  per- 
sons in  Navy. — An  enlisted  man  refused  to 
permit  an  injection,  for  the  purpose  of  im- 
munization, of  anti-diphtheritic  serum  during 
the  prevalence  of  an  epidemic  of  diphtheria  on 
board  his  ship;  for  his  refusal  he  was  reported 
by  Ills  commanding  officer  to  the  Navy  Depart- 
ment; liis  trial  by  general  court-martial  was 
ordered,  resulting  in  liis  conA-iction.  which  was 
approved  by  the  Secretary  of  the  Navy  on 
February  11,  1910.  (G.  C.  M.  Rec.  No.  21477; 
see  file  26253-98,  May  17,  1910.) 

An  enli.sted  man  refused  to  submit  to  an 
injection  of  typhoid  prophylactic,  as  recjuired 
by  general  order  issued  by  the  Secretary  of 
the  Navy  and  the  order  of  his  commanding 
officer;  he  was  tried  by  general  court-martial 
and  convicted  of  "refusing  to  obey  the  lawful 
order  of  his  sujjerior  officer."  Held,  that  he 
was  legally  convicted,  and  the  fact  that  the 
proposed  treatment  violated  the  tenets  of  his  re- 
ligious faith .  could  not  legally  justify  his  refusal 
to  obey  the  orders  of  his  official  superiors. 
(File  26251-6149:4,  .Tune  21,  1912.) 

An  enlisted  man  refused  to  allow  the  medical 
officer  properly  to  treat  him;  the  treatment 
contemplated  was  not  dangerous  nor  very  pain- 
ful; the  result  of  his  refusal  was  carefully  ex- 
plained to  Mm  and  he  persisted  in  his  refusal. 


He  was  accordingly  tried  therefor  by  summary 
court-martial.  (File  1117-2,  Oct.  11,  1906;  see 
file  26253-98,  May  17,  1910.) 

Wliile  the  Navy  Department  will  not  under- 
take to  lay  down,  as  a  general  rule,  that  a  man 
mu.st,  ])articularly  in  cases  involving  risk  of 
life  or  loss  of  Umb,  submit  to  a  surgical  opera- 
tion, on  the  other  hand  it  can  not  accept  the 
opinion  that  it  is  optional  with  the  man  con- 
cerned whether  or  not  he  shall  submit  to  such 
an  operation  in  the  course  of  medical  treat- 
ment. In  ordinary  ca.«es  when,  in  the 
opinion  of  the  medical  officer,  after  consulta- 
tion, if  advisable,  with  other  surgeons  available, 
it  is  deemed  necessary,  in  order  to  restore  a 
man  to  his  capacity  for  the  performance  of  his 
duties,  that  a  minor  surgical  operation  be  made 
upon  him,  he  can  be  required  to  undergo  the 
same,  under  penalty  of  punishment,  as  by 
sentence  of  court-martial,  m  case  of  his  refusal 
to  submit  thereto.  (File  1165-02,  Feb.  12, 
1902.) 

The  Navy  Department  is  of  the  opinion  that 
an  enlisted  man  should  not  be  required  to 
undergo  a  surgical  oiieration  for  hernia  in 
opposition  to  his  wishes,  and  that  disciplinary 
action  should  not  be  taken  against  him  on 
account  of  his  refusal  to  permit  such  operation. 
(File  1117,  Mar.  17,  1905;  file  1117-1,  Mar.  10, 
1906.) 

The  Navy  Department  has  heretofore  held 
that  a  man  need  not  submit  to  an  operation  for 
hernia  against  his  wishes,  while  the  War  De- 
partment has  held  otherwise.  The  principle 
seems  to  be  the  same  in  both  departments  as 
to  an  operation  involving  risk  of  life  even 
though  there  be  diversity  in  the  application  of 
the  rule.  Held,  that  one  in  the  naval  service 
may  not,  against  his  will,  be  ordered  to  submit 
to  an  operation  which  is  dangerous  to  life  or 
limb,  whereas  he  may  be  ordered  to  submit  to 
an  operation  which  would  correct  a  condition 
which  destroys  his  usefulness,  when  such  oper- 
ation may  fairly  be  said,  by  a  responsible 
medical  officer,  to  be  of  such  a  character  as  not 
to  endanger  the  life  or  limb  of  the  patient,  under 
the  conditions  existing  at  the  time  of  operation 
or  under  the  conditions  which  were  believed 
then  to  exist  and  which  an  experienced  medical 
officer  would,  in  the  exercise  of  due  care,  be 
justified  in  believing  to  exist.  (File  7036-382. 
Nov.  9,  1917;  C.  M.  O.  72,  1917,  p.  18.) 

"It  will  be  noted,  from  the  foregoing,  that 
so  far  as  the  Department's  policy  in  such 
matters  is  concerned,  a  distinction  is  made 
between  a  minor  operation  and  one  of  greater 
magnitude  or  danger,  such  as  an  operation  for 
hernia.  In  the  former  case  a  man,  and  doubt- 
less an  officer,  may  be  required  to  submit  to 
such  an  operation  under  penalty  of  punishment 
upon  his  refusal.  But  in  the  case  of  an  opera- 
tion for  hernia,  that  is,  one  of  greater  danger, 
he  'should  not  be  reciuired  to  undergo  a  surgical 
operation'  therefor  in  opposition  to  his  wishes." 
(File  26253-98,  May  17,  1910.) 

The  finding  of  a  retiring  board,  that  the 
incapacity  of  an  officer  of  the  Marine  Corps  is 
due  to  the  fact  that  he  will  not  submit  to  an 
operation  recommended  by  responsible  medical 
officers  of  the  Navy,  and  is  therefore  not  the 
result  of  an  incident  of  the  service,  should  be 
disapproved.     It   appears    to    be    clear    upon 


458 


The  Navy. 


Pt. 


REVISED  STATUTES. 


Sec.  1368. 


principle,  and  in  accordance  witli  precedent, 
that  he  should  not  be  required  to  submit  to  the 
operation  which  was  advised  in  his  case,  and 
which  was  of  a  serious  nature.  (File  26253-98, 
May  17,  1910.) 

If  a  disability  results  from  an  incident  of  the 
service,  and  is  of  such  a  serious  character  that 
a  person  in  the  service  may  properly  decline 
to  be  operated  upon,  such  person  is  entitled  to 
a  finding  of  '  'in  line  of  duty."  But  where  one 
may  properly  be  ordered  to  submit  to  opera- 
tion, and  is  punishable  for  failure  so  to  submit, 
the  notation  of  record,  "not  in  line  of  duty, 
due  to  his  own  misconduct,"  correctly  reflects 
the  facts.  A  condition  having  its  inception  in 
an  incident  of  the  service  ceases  to  be  due  to 
that  cause  and  becomes  instead  traceable  to 
the  recalcitrance  of  the  patient.  (File  7036- 
382,  Nov.  9,  1917.) 

Medical  attendance  to  persons  not  in 
the  Navy. — ^Medical  officers  are  required  by 
the  Na^'y  Regulations,  in  addition  to  their  ofli- 
cial  duties,  to  attend  the  families  of  officers  and 
enlisted  men  residing  within  a  prescribed  dis- 
tance from  navy  yards,  na^■al  stations,  recruit- 
ing offices,  and  the  Navy  Department;  and  to 
render  professional  assistance  to  mechanics  or 
laborers  injured  while  at  work  in  na\y  yards. 
(R-1006,  Navy  Regs.  1913.) 

There  is  no  provision  of  law  which  prohibits 
professional  attendance  by  medical  officers 
upon  families  of  officers  of  the  naval  service, 
and  if  such  attendance  does  not  interfere  with 
the  necessary  service  to  officers  and  men  of  the 
Navy  and  Marine  Corps,  it  is  not  contrary  to 
law.  _  (File  28019-17,  Jan.  26,  1912.) 

United  States  medical  officers,  where  practi- 
cable, shall  furnish  reasonable  medical,  surgical, 
and  hospital  ser^•ices  to  Federal  employees  in- 
jured while  in  the  performance  of  duty.  (Act 
Sept.  7,  1916,  39  Stat.,  742.) 

The  Bureau  of  War  Risk  Insurance  shall,  by 
arrangement  -with  the  Secretary  of  the  Na\y, 
make  use  of  the  serAices  of  surgeons  in  the  Navy. 
(Act  Oct.  6,  1917,  sec._  K,  40  Stat.,  399.) 

Persons  injured  while  in  the  naval  ser\-ice  in 
the  line  of  duty  shall  be  furnished  by  the  United 
States  such  reasonable  governmental  medical, 
surgical,  and  hospital  services  as  the  director  of 
the  Bureau  of  War  Risk  Insiu-ance  may  deter- 
mine to  be  useful  and  reasonablv  necessary. 
(Act  Oct.  6,  1917,  sec.  302  (4),  40  Stat.,  406.) 

Persons  apphdng  for  or  in  receipt  of  compen- 
sation under  the  War  Risk  Insurance  Act,  Art. 
Ill,  shall,  as  frequently  and  at  such  times  and 
places  as  may  lie  reasonably  required,  submit  to 
examination  by  medical  officers  of  the  United 
States.  (Act  Oct.  6,  1917,  sec.  303,  40  Stat., 
406.) 

[Medical  officers  of  the  Army  are  required  by 
law  to  attend  the  families  of  officers  and  soldiers 
free  of  charge  whenever  practicable.  (Act  July 
5,  1884,  23  Stat.j  112.)] 

Commanders  m  chief,  senior  officers  present, 
and  division  commanders  may  require  the  med- 
ical officers  of  their  commands  to  render  profes- 
sional aid  to  persons  not  in  the  naval  service, 
when  such  aid  can  be  rendered  without  detri- 
ment to  the  interests  of  the  Government,  and 
is  necessary  and  demanded  by  the  laws  of 
humanity  or  the  principles  of  international 
courtesy.     (R-1607,  Navy  Regs.  1913.) 


A  medical  officer  in  the  Navy  is  entitled  to 
compensation  from  appropriations  under  con- 
trol of  the  Department  of  Justice  for  professional 
services  rendered  by  him  to  United  States  pris- 
oners in  a  United  States  jail.  In  this  case  it 
appeared  that  it  had  been  the  custom  of  the  De- 
partment of  Justice  for  many  years  to  employ 
medical  officers  of  the  Navy  to  render  necessary 
medical  services  to  prisoners  confined  in  the 
jail  in  question,  for  which  services  the  medical 
officers  were  paid  by  the  local  United  States 
marshal  from  the  appropriation  "support  of 
prisoners."  In  passing  upon  the  marshal's  ac- 
counts, certain  fees  thus  paid  were  disallowed 
by  the  Auditor  for  the  State  and  Other  Depart- 
ments, on  the  ground  that,  as  the  medical  officer 
was  an  assistant  surgeon  in  the  Navy,  his  com- 
pensation was  fixed  by  law,  and  therefore  under 
section  1765,  Revised  Statutes,  he  was  not  en- 
titled to  receive  any  further  salary  or  fees  from 
the  Government.  The  marshal  called  upon 
the  medical  officer  to  refund  the  amounts  disal- 
lowed, which  the  latter  refused  to  do,  where- 
upon the  marshal  made  a  report  to  the  Secretary 
of  the  Na\'y,  who  declined  to  take  any  action 
in  the  matter.  Thereafter,  the  action  of  the 
auditor  was  reversed  by  the  Comptroller  of  the 
Treasury,  who  stated  that  the  medical  officer 
in  question  was  not  required  by  virtue  of  his 
office  to  attend  the  prisoners  in  question,  and 
followed  the  principle  applied  in  18  Comp. 
Dec,  156,  inwhich  it  was  held  that,  "where  a 
clerk  to  a  United  States  attorney  tj-pewrites 
official  reports  for  an  examiner  of  the  Bureau  of 
Investigation,  Department  of  Justice,  and  the 
making  of  such  reports  is  not  authorized  or  di- 
rected by  a  superior  officer,  such  typewriting 
is  not  a  part  of  the  official  duties  of  said  clerk, 
and  compensation  therefor  is  not  prohibited  by 
sections  1764  and  1765  of  the  Revised  Stat- 
utes." (Comp.  Dec,  May  15,  1912,  45  MS. 
Comp.  Dec,  300;  see  file  6320-15,  Bu.  Nav. 
As  to  appropriation  chargeable  with  expenses 
of  officer  detailed  for  duty  under  another  de- 
partment, see  note  to  sec.  1437,  R.  S.) 

The  private  practice  of  medicine  and  surgery 
by  a  medical  officer  of  the  Navy  in  competition 
with  a  private  physician  is  not  disapproved  by 
the  Navy  Department  under  the  circmnstances 
of  the  case  presented.  (File  17088-8,  Jan.  4 
and  19,  1910.  In  this  case  the  facts  as  accepted 
by  the  department  were  that  for  many  years 
there  had  never  been  a  civilian  doctor  resident 
in  the  vicinity  of  the  naval  hospital,  which 
compelled  the  naval  medical  officer  to  assume 
private  practice,  for  a  large  portion  of  which  he 
received  no  remuneration;  that  the  private 
physician  who  protested  to  the  department  was 
not  permanently  located  in  the  immediate 
vicinity  of  the  hospital,  but  had  a  sanitarium 
and  business  interests  at  a  distance,  which 
necessitated  his  absence  from  town  for  periods 
of  a  month  at  a  time;  that  should  the  naval 
medical  officer  be  prohibited  from  practicing 
outside  of  Navy  limits,  the  inhabitants  of  the 
town  and  surrounding  country,  a  number  of 
whom  were  destitute,  would  be  left  without  the 
services  of  a  physician;  that  the  professional 
and  personal  probity  of  the  medical  officer  in 
question  was  satisfactorily  established ;  that  the 
resources  of  the  naval  hospital  were  not  being 
used  by  him  for  personal  profit  or  in  any  manner 


54641°— 22 30 


459 


Sec.  1368. 


Pt.2.   REVISED  STATUTES. 


The  Navy. 


inconsistent  with  proper  practice;  that  said 
nunlical  olhcer  had  observed  professional 
ethics  in  liis  association  with  patients  and  with 
other  medical  practitioners,  and  would  unques- 
tionably continue  to  do  so.  See  also,  as  to 
same  ca-^ie.  lile  118514  Bu.  M.  and  S.,  and  file 
6320-9,  Bu.  Nav.) 

A  member  of  the  Hospital  Corps  of  the  Navy 
treated  a  private  patient  who  called  at  the  naval 
dispensary  and  whose  case  reciuircd  immediate 
attention.  He  acce]>ted  compensation  for  such 
treatment.  A  warrant  for  his  arrest  for  practic- 
ing medicine  without  a  license  was  issued  at  the 
instanceof  a  private  medical  practitioner  located 
inthe\'icinity  of  the  naval  station.  Upon  report 
of  the  occurrence  to  the  Navy  Department  the 
case  was  immediately  referred  to  the  Attorney 
General,  who  detailed  counsel  for  the  defense, 
with  the  result  that  the  case  was  dismissed  by 
the  civil  magistrate.     (File  6092-2.3.3.) 

Right  to  practice  medicine  and  sur- 
gery.—"It  is  well  settled  that  under  the 
p<ilice  power  inherent  in  the  State,  the  legis- 
lature may  enact  regulations  for  the  examina- 
tion and  registration  of  physicians,  and  the 
practice  of  medicine  and  surgery,  and  such 
statutes  violate  neither  the  Federal  nor  the 
State  constitutions.  Similar  statutes  have 
been  sustained  for  the  regidation  of  the  practice 
of  dentistry."     (.30  Cyc,  1547.) 

"The  qualifications  prescribed  by  the  sev- 
eral States  to  entitle  one  to  enter  upon  the 
practice  of  medicine  and  surgery  may  be  gen- 
erally classified  as  follows:  (1)  The  candidate 
must  have  a  diploma  from  a  medical  college  in 
good  standing  and,  in  addition,  must  pass  a 
satisfactory  examination  before  a  board  of  ex- 
aminers. (2)  The  candidate  must  pass  a  satis- 
factory examination,  as  in  the  first  class,  but  is 
not  required  to  have  a  diploma.  (3)  The  can- 
didate may  either  present  an  acceptable  di- 
ploma, or,  if  he  has  no  diploma,  he  may  be 
examined  as  to  his  qualifications.  (4)  The  ap- 
plicant must  hold  a  diploma  issued  by  a  rep- 
utable medical  college,  which  must  be  satis- 
factorily shown  to  belong  to  him."  (30  Cyc, 
1548.) 

"The  statutes  in  many  States  except  from 
their  operation  certain  classes  of  persons,  and 
services  rendered  in  particular  cases.  Thus  it 
is  commonly  provided  that  the  statute  shall  not 
apply  to  any  commissioned  medical  officer  of 
the  United  States  Army,  Naw,  or  Marine 
service;  *  *  *  physicians  called  into  con- 
sultation from  another  State,  or  to  treat  a  par- 
ticular case,  and  who  do  not  otherwise  practice 
in  the  State;  *  *  *  or  to  ser\dces  rendered 
gratuitously,  or  in  case  of  emergency,  or  to  the 
administration  of  domestic  medicines.  These 
exemptions  have  been  attacked  as  unconsti- 
tutional on  the  ground  of  discrimination,  but 
have  been  upheld  by  the  courts."  (30  Cyc, 
1560.) 

The  act  of  March  3,  1896  (29  Stat.,  198),  "to 
regulate  the  practice  of  medicine  and  surgery, 
to  license  physicians  and  surgeons,  and  to 
punish  persons  violating  the  provisions  thereof 
in  the  District  of  Columbia,"  provided  (sec. 
12)  "that  this  act  shall  not  apply  to  commis- 
sioned surgeons  of  the  United  States  Army, 
Nav-y,  or  Marine  Hospital  Service,  nor  to  regu- 
larly licensed  physicians  and  surgeons  in  actual 


consultation  from  other  States  or  Territories,  nor 
to  regidarly  licensed  physicians  and  surgeons 
actually  called  from  other  States  or  Territories 
to  attend  specified  cases  in  the  District  of  Co- 
lumbia, nor  to  the  treatment  of  any  case  of 
actual  emergency,  *  *  *  nor  to  the  use  of 
ordinary  domestic  remedies  without  fee,  gift, 
or  consideration  of  any  kind." 

"An  emergency  means  a  case  in  which  ordi- 
nary medical  practitioners  are  not  available, 
as  where  the  exigency  is  of  so  pressing  a  char- 
acter that  some  kind  of  action  must  be  taken 
before  such  parties  can  be  found  or  procured." 
(30Cvc.,  1560,  citing  People  i'.  Lee  Wah,  71  Cal., 
80,  li  Pac,  851.) 

The  treatment  of  civilian  patients  by  a  med- 
ical officer  of  the  Navy  within  the  limits  of  the 
Naval  Reservation  at  Indianhead,  Md.,  can  not 
be  prosecuted  by  the  State  authorities  as  a 
violation  of  State  laws  prohibiting  the  practice 
of  medicine  and  surgery  without  a  License. 
(File  6692-233;  see  also  note  to  sec.  355,  R.  S., 
under  "VI.  Jurisdiction,  Naval  Reservations.") 

Right  of  medical  officers  to  perform 
autopsies  on  deceased  members  of  the 
naval  personnel. — The  following  princijiles 
are  established  by  judicial  decisions  concerning 
the  power  of  coroners  and  attending  physicians 
to  perform  autopsies  without  consent  of  rela- 
tives of  the  deceased: 

"1.  In  general,  coroners  are  authorized  to 
hold  inquests  and  perform  autopsies  only  in 
cases  of  death  accompanied  by  suspicious  cir- 
cumstances such  as  to  indicate  that  death 
resulted  from  violence  or  other  unlawful  means. 
This  matter,  however,  is  regulated  by  statutes 
in  the  different  jurisdictions,  some  of  which  are 
very  much  broader  in  their  terms  than  others. 

"2.  WTiere  the  attending  physician  is  re- 
quired by  law  to  make  a  report  of  death  showing 
the  cause  thereof,  or  where  the  law  requires  a 
burial  certificate  to  be  issued  before  interment 
of  the  remains,  a  post-mortem  examination  is 
authorized,  regardless  of  the  consent  of  the 
relatives,  where  such  an  examination  is  nec- 
essary to  determine  the  cause  of  death.  This 
question  is  wholly  distinct  from  the  subject  of 
coroner's  inquests,  and  in  cases  of  this  character 
an  autopsy  may  be  performed  -without  the 
existence  of  any  suspicious  circumstances.  In 
some  of  the  cases  considered  in  support  of  this 
statement,  the  autopsy  was  authorized  by  the 
appropriate  city  authorities.  In  others,  the 
autopsy  was  performed  by  the  attending  phy- 
sician upon  his  OAvn  responsibility  and  his 
action  sustained  by  the  courts. 

"3.  In  cases  where  an  autopsy  is  proper,  it 
must  be  performed  in  a  decent  manner,  with 
due  regard  to  the  sensibilities  of  the  family  and 
the  respect  due  to  the  dead.  Accordingly, 
there  should  be  no  further  disfigurement  of  the 
body  than  is  absolutely  necessary,  and  any 
parts  of  the  body  removed  should  be  restored 
for  burial,  unless  it  be  necessary  to  preserve 
some  particular  organ  for  further  examination 
as  to  whether  a  crime  had  been  committed  or 
for  e^ddence.  "    (File  13673-1587,  Apr.  22, 1912). 

The  Na\T  Regulations,  1909,  articles  1644 
(1),  1645  (3),  and  1646  (2)  [embodied  in 
"Naval  Courts  and  Boards,"  1917,  articles  596- 
608,  superseding  Na\y  Regulations,  1913,  arti- 
cles R  321,  322,  and  323],  are  similar  to  the 


460 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1369. 


various  State  Btatutee  relating  to  the  duties  of 
coroners,  and  clearly  authorize  the  making  of 
a  post-mortem  examination,  without  the  con- 
sent of  the  family;  whenever  death  occurs  in 
the  Navy  under  the  conditions  stated  by  the 
Regulations,  i.e.,  "as  the  result  of  an  accident, 
or  attended  with  unnatural  or  suspicious  cir- 
cumstances," in  which  cases  a  board  of  inquest 
must  be  convened.  (File  13673-1587,  Apr.  22, 
1912.) 

The  Instructions  for  Medical  Officers,  U.  S. 
Navy,  1909,  pages  109,  110,  required  that  a  post- 
mortem examination  be  made  "in  every  case 
of  death"  occiuring  in  the  Navy,  whether  nec- 
essary to  determine  cause  of  death  or  not. 
These  instructions,  which  were  incorporated 
in  the  Navy  Regulations,  1909,  by  article  1143 
of  said  Regulations,  are  too  broad.  A  post- 
mortem examination  should  be  required  only 
in  eases  of  death  occurring  under  circumstances 
which  afford  a  reasonable  necessity  for  the 
performance  of  an  autopsy.  (File  13673-1587, 
Apr.  22,  1912 — The  instructions  mentioned 
were  modified  in  accordance  with  the  foregoing, 
in  Manual  for  Medical  Department,  U.  S.  Navy, 
par.  2443,  incorporated  in  the  Navy  Regula- 
tions, 1913,  by  art.  R-4562;  see  also  art.  964, 
Navy  Regs.,  1909,  now  art.  R-2963,  Navy 
Regs.,  1913.) 

As  to  force  and  effect  of  Navy  Regulations, 
see  note  to  section  161,  Revised  Statutes;  as  to 
responsibility  of  naval  officers  for  illegal  acts,  see 


cases  noted  under  Constitution,  Article  I,  sec- 
tion 8,  clause  13;  as  to  right  of  coroners  to  hold 
inquests  on  naval  reservations,  see  note  to  sec- 
tion 355,  Revised  Statutes. 

Reports  by  medical  officers  of  the  Navy 
to  State  authorities  can  not  be  required  in 
cases  of  communicable  diseases  occurring  in 
naval  reservations,  as  the  State  laws  do  not 
operate  within  such  places  under  the  jurisdic- 
tion of  the  Federal  Government.  (File  14560- 
174,  Apr.  19,  1916.  See  also  file  4778-95, 
Dec.  ],  1916,  7657^58,  July  27,  1917,  and  7657- 
458;  1,  Dec.  13,  1917;  and  see  note  to  sec.  355, 
R.  S.) 

Medical  records  confidential. — See  notes 
to  section  161,  Revised  Statutes,  under  "II. 
Custody  of  Property  and  Records" ;  section  418, 
Revised  Statutes,  under  "Records  of  depart- 
ment"; and  section  871,  Revised  Statutes, 
under  "Copies  of  records." 

Medical  officers  serving  with  the 
Army. — "Officers and  enlisted  men  of  the  Med- 
ical Department  of  the  Navj^,  serving  with  a  body 
of  marines  detached  for  service  with  the  Army 
in  accordance  with  the  provisions  of  section 
sixteen  hundred  and  twenty-one  of  the  Revised 
Statutes,  shall,  while  so  serving,  be  subject  to 
the  rules  and  articles  of  war  prescribed  for  the 
government  of  the  Army  in  the  same  manner 
as  the  officers  and  men  of  the  Marine  Corps 
while  so  serving."  (Act  Aug.  29,  1916,  36 
Stat.,  573). 


Sec.  1369.  [Medical  Corps ;  appointments  in,  how  made.]  AU  appointments 
in  the  Medical  Corps  shall  be  made  by  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate.— (21  April,  1806,  c.  35,  s.  3,  v.  2,  p.  390.  16  April, 
1814,  c.  58,  s.  5,  V.  3,  p.  125.     24  May,  1828,  c.  121,  s.  3,  v.  4,  p.  313.) 


As  to  appointment  of  officers  in  general,  see 
note  to  Constitution,  Article  II,  section  2, 
clause  2. 

Acting  assistant  siu-geons  may  be  appointed  by 
the  President  (act  May  4,  1898,  30  Stat., 
380) ;  or  in  time  of  war  by  the  Secretary  of 
the  Navy  (sec.  1411,  R.  S.,  as  amended  by 
act  Feb.  15,  1879,  sec.  2,  20  Stat.,  295.) 

Appointments  in  the  Naval  Reserve  Force, 
to  commissioned  grades,  shall  be  made  by 
the  President  alone,  and  to  warrant  grades 
shall  be  made  by  the  Secretary  of  the  Navy. 
(Act  Aug.  29,  1916,  39  Stat.,  587.) 

Appointments  in  the  Dental  Corps  of  the  Navy 
are  made  by  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate.  (Act 
July  1,  1918,  40  Stat.,  708,  superseding 
act  Aug.  29,  1916,  39  Stat.,  573,  which 
superseded  act  Aug.  22,  1912,  37  Stat., 
345.) 

Appointments  of  temporary  commissioned 
officers  during  the  war  with  Germany  were 
to  be  made  by  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate. 
(Act  May  22,  1917,  sec.  12,  40  Stat.,  87). 

Nurses  (female)  are  appointed  by  the  Surgeon 
General  with  the  approval  of  the  Secretary 
of  the  Navy;  except  the  superintendent  of 
the  Nurse  Corps,  who  is  appointed  by  the 
Secretary  of  the  Navy.  (Act  ]\Iay  13,  1908, 
35  Stat.,  146.) 

Passed  assistant  surgeons  are  appointed  by  the 
President,  by  and  with  the  ad%dce  and 


consent  of  the  Senate.  (See  note  to  sec. 
1368,  R.  S.) 
Pharmacists  in  the  Hospital  Corps  are  to  be 
appointed  by  the  President  (act  Aug.  29, 
1916,  39  Stat.,  572,  amending  act  June  17, 
1898,  sec.  1,  30  Stat.,  474).  Chief  phar- 
macists in  the  Hospital  Corps  are  to  be 
appointed  by  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate. 
(Act  Aug.  22,  1912,  37  Stat.,  345;  amended 
by  act  Aug.  29,  1916,  39  Stat.,  572.) 
Promotion    of    medical    officers — see    note    to 

section  1371,  Revised  Statutes. 
Rank  of    officers  of  the   Navy  shall   not  be 
changed,  "except  in  accordance  with  the 
provisions  of  existing  law,  and  by  and  with 
the  advice  and  consent  of  the  Senate." 
(Sec.  1506,  R.  S.,  as  amended  by  act  June 
17,  1878,  20  Stat.,  143.) 
Recess  appointments,  when  Senate  not  in  ses- 
sion— see  note  to  Constitution,  Article  III 
section  2,  clause  3. 
The  Secretary  of  the  Navy  was  authorized  to 
make  "temporary  appointments  as  warrant 
officers  of  the  Navy"  by  act  May  22,  1917, 
section  5  (40  Stat.,  85). 
Recess   appointment  not   accepted. — A 
recess  commission  issued  to  a  candidate  who 
had    qualified    for    appointment    as    assistant 
surgeon,    which,   however,    was   not  accepted 
and  was  therefore  never  of  any  practical  effect, 
should  not  be  accepted  after  the  appointment 
has  been  confirmed  by  the  Senate,  but  should 


461 


Sec.  1370. 


Ft.  2.  REVISED  STATUTES. 


The  Navy. 


bo  disregarded  and  a  permanent  commission 
issued  in  the  usual  manner.  (File  8622-2,  Feb. 
10,  1908.) 

An  examination  of  statutes  relating  to 
appointments  in  the  Navy,  as  well  as 
appointments  in  the  Army,  indicates  that 
Congress  frequently  discriminates  between 
appointments  to  be  made  by  the  President 
alone,  and  appointments  to  be  made  by  the 
President  by  and  vdih  the  advice  and  consent 
of  the  Senate.  For  example,  section  13G9, 
Re\'i8ed  Statutes,  provides  that  all  appoint- 
ments in  the  Medical  Corps  shall  be  made  by 
the  President,  by  and  with  the  ad\dce  and 
consent  of  the  Senate;  section  1378  contains  a 
similar  pro^'ision  with  reference  to  appoint- 
ments in  the  Pay  Corps;  section  1394  provides 
in  a  similar  manner  for  the  appointment  of 
cadet  engineers  as  second  assistant  engineers 
[now  repealed];  section  1395  contains  a  similar 
provision  as  to  chaplains  in  the  Navy;  section 
1382  empowers  the  President  alone  to  appoint 
a  paymaster  of  the  fleet;  section  1393  author- 
izes the  President  to  appoint  an  engineer  of  the 
fleet;  section  1403  authorizes  cadet  engineers  of 


certain  merit  to  be  immediately  appointed  as 
assistant  naval  constructors  [now  amended]; 
section  1405  authorizes  the  President  to  appoint 
as  many  boatswains,  guimers,  eailmakers,  and 
carpenters  as  may  in  liis  opinion  be  necessary 
and  proper;  section  1111  authorizes  the  Secre- 
tary of  the  Navy  to  appoint  acting  assistant 
surgeons  for  temporary  service;  section  1414 
authorizes  the  Secretary  of  the  Navy  to  ap- 
point storekeepers  on  foreign  stations.  WTiere 
the  statute  pro^ides  for  the  appointment  of  an 
officer  by  the  President,  without  reqidring  the 
consent  of  the  Senate,  such  consent  is  unneces- 
sary, and  the  President  may  make  such  appoint- 
ment without  submitting  the  same  to  the  Sen- 
ate for  confirmation.  In  the  latter  case  the 
commission  may  be  signed  by  the  Secretary  of 
the  Navy  as  the  act  of  the  President.  (22  Op. 
Atty.  Gen.,  82;  for  other  examples  of  cases  in 
which  the  President  has  been  authorized  to 
appoint  officers  of  the  Navy  without  consent 
of  the  Senate,  see  note  to  Constitution,  Art. 
II,  sec.  2,  clause  2,  under  "II.  Constitutional 
Power  of  Appointment.") 


Sec.  1370.  [Medical  Corps ;  qualifications  for  assistant  surgeons.]  No  person 
shall  be  appointed  assistant  surgeon  mitil  he  has  been  examined  and  approved 
by  a  board  of  naval  surgeons,  designated  by  the  Secretary  of  the  Navy,  nor 
who  is  under  twenty-one  or  over  tliirty  years  of  age,  inclusive. 


This  section  was  expressly  amended  to  read 
as  above  by  a  clause  in  the  naval  appro- 
priation act  of  May  4,  1898  (30  Stat.,  380). 
As  originally  enacted  it  provided  as  fol- 
lows:    "Sec.  1370.  No    person    shall    be 
appointed  assistant  surgeon  until  he  has 
been  examined  and  approved  by  a  board 
of  naval  surgeons,  designated  by  the  Sec- 
retary^  of   the   Navy;   nor   who   is  under 
twenty-one   or  over  twenty-six   years  of 
age."— (24  May,   1828,  c.  121,    s.  1,  v.  4, 
p.  313.  3  Mar.,  1871,  c.  117,  s.  5,  v.  16,  p.  536.) 
Amendment  to  this  section,  as  reenacted  by  the 
act  of  May  4,  1898,  was  made  bv  the  act 
of  August  29,  1916  (39  Stat.,  577),  which 
provided  "that  hereafter  appointees  to  the 
grade  of  assistant  surgeon  shall  be  between 
the  ages  of  twenty-one  and  thirty-two  at 
the  time  of  appointment;"  and  by  act  of 
March  4,  1917  (39  Stat.,  1171),  as  to  boards 
being  convened   by    officers    on    foreign 
stations. 
Qualifications  for  appointment  as  dental  sur- 
geon in  the  Dental  Corps — see  act  of  August 
29,  1916  (39  Stat.,  573). 
Qualifications  for  appointment  in  the  Naval 
Reserve  Force  are  prescribed  by  the  act 
of    August    29,    1916    (39   Stat.,   587),   as 
amended. 
Special  age  limits  were  prescribed  for  ofl5cers 
appointed  to  the  Regular  Navy,  by  transfer 
from    the    temporary    Navy    and    Naval 
Reserve  Force,  by  act  approved  June  4, 
1920,  section  5  (41  Stat.,  835). 
Appointments  to  temporary  service. — 
The  above  law,  as  its  language  imports,  was 
to  guard  against  the  appointment  of  incom- 
petent surgeons  in  the  Navy,  and  evidently 
applies  to  appointments  to  be  made  in  the 


regular  or  permanent  service,  as  contradis- 
tinguished from  appointments  in  the  temporary 
service;  for  in  the  next  succeeding  clause  or 
paragraph  of  the  act  of  May  4,  1898  (amending 
section  1370),  there  is  a  pro\dsion  authorizing 
the  President  "to  appoint  for  temporary 
service  twenty-five  acting  assistant  surgeons, 
who  shall  have  the  relative  rank  and  compen- 
sation of  assistant  surgeons"  [and  containing 
no  restrictions  as  to  the  qualifications  necessary 
for  such  temporary  appointments].  The  Con- 
gress by  their  legislation  have  recognized  the 
distinction  between  officers  in  the  permanent 
and  temporary  service  in  the  Navy.  (Taylor 
V.  U.  S.  38  Ct.  Cls.,  155, 161;  see  also  file  27231- 
51:5,  July  10,  1915;  and  see  note  to  sec.  1411, 

The  act  of  May  22,  1917  (40  Stat.,  84),  pro- 
viding for  temporary  appointments  and  pro- 
motions Ln  the  Navy,  does  not  require  compli- 
ance with  statutory  provisions  governing  per- 
manent promotions.  The  decision  of  the  Court 
of  Claims  in  Taylor  v.  U.  S.  (38  Ct.  Cls.,  155), 
[noted  above],  is  directly  in  point  in  connection 
with  the  administration  of  the  act  of  May  22, 
1917.  (File  28687-22,  June  14,  1917;  see  also 
Op.  Atty.  Gen.,  Oct.  20,  1917,  file  28550-123:4.) 

Acting  assistant  surgeons  may  be  appointed 
for  temporary  service  after  such  examination 
as  the  Secretary  of  the  Navy  may  prescribe. 
(Art.  R-3305,  Navy  Regs.,  1913;  see  note  to  sec. 
1411,  R.  S.) 

Application  of  statutory  requirements 
to  appointments  under  subsequent  laws. — 
"When  a  general  law  prescribes  what  persons 
may  be  appointed  to  any  class  or  kind  of  office 
or  place,  the  time  or  manner  of  their  appoint- 
ment, the  tenure  of  their  office,  their  qualifi- 
cations or  the  test  of  their  qualifications  and 


462 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1370. 


fitness,  any  appointment  of  that  kind  there- 
after authorized,  must,  unless  otherwise  pro- 
vided, be  made  with  reference  to  and  in  con- 
formity with  the  requirements  of  such  general 
law.  I  think  it  a  mistake  to  suppose  that,  in 
order  to  bring  such  appointments  within  the 
pur\-iew  of  the  general  law,  it  would  be  neces- 
sary to  state  specifically  in  the  act  authorizing 
them,  that  they  are  to  be  made  as  thus  pre- 
scribed, or  as  provided  by  law,  or  that  such  idea 
be  expressed  in  any  form.  On  the  contrary, 
I  think  that  in  order  to  exempt  such  appoint- 
ments from  the  operation  of  the  general  law, 
a  specific  exemption  therefrom  would  be  re- 
quired. Indeed,  as  a  general  rule,  it  may  be 
said  that  in  every  statute  authorizing  or  requir- 
ing a  certain  act,  there  is  implied,  as  if  there 
written,  the  direction  that  such  act  shall  be 
done  with  reference  to  and  in  conformity  with 
existing  laws  on  the  subject,  if  there  are  any. 
All  laws  in  pari  materia  should  be  construed  to- 
gether, and  so  as  to  give  effect  to  all  and  to  not 
conflict  with  each  other."  (25  Op.  Attv.  Gen., 
341.) 

General  requirements  for  appoint- 
ment.— No  person  shall  be  appointed  to  any 
office  in  the  Navy  unless  he  is  a  citizen  of  the 
United  States,  nor  until  he  shall  have  passed 
aphysical,  amental,  and  a  prof  essional  examina- 
tion. The  physical  examination  shall  pre- 
cede the  mental  and  professional,  and  if  a 
candidate  be  physically  unfit  he  shall  not  be 
examined  otherwise.  (Art.  R-3301,  Navy 
Regs.,  1913;  see  note  to  sec.  1428,  R.  S.,  as  to 
citizenship  of  officers  of  the  Na\'^^) 

"Board  of  naval  surgeons." — ^The  word 
"surgeons"  in  this  section  is  construed  to 
mean  "medical  officers,"  and  not  as  restrict- 
ing the  membership  of  the  examining  board  to 
officers  in  the  grade  of  surgeon.  (See  Art.  R- 
3305,  Navy  Regs.,  1913,  providing  that  a 
candidate  for  assistant  surgeon  must  be 
examined  physically,  morally,  mentally,  and 
professionally  by  a  board  of  "medical  offi- 
cers"; see  also  note  to  sec.  1493,  R.  S.  As  to 
the  grades  of  officers  constituting  the  Medical 
Corps,  see  note  to  sec.  1368,  R.  S.) 

Age  of  candidates  for  appointment. — 
See  notes  to  section  1379,  Re\'ised  Statutes,  as 
to  age  of  candidates  for  appointment  as  assistant 
pajonasters;  section  1517,  Revised  Statutes,  as 
to  age  of  candidates  for  appointment  as  mid- 
shipman at  the  Naval  Academy;  and  act  March 
3,  1899,  section  14  (30  Stat.,  1007),  as  to  age  of 
candidates  for  appointment  as  warrant  machin- 
ists, now  designated  as  "machinists." 

Where  a  candidate  for  assistant  surgeon  had 
not  passed  his  thirtieth  birthday  when  con- 
firmed by  the  Senate,  the  statutory  require- 
ment was  fulfilled,  and  he  can  legally  be  com- 
mis-sioned  and  accept  the  appointment  after 
passing  said  age.  (File  8622-2,  Feb.  10,  1908; 
see  also  note  to  Constitution,  Art.  II,  sec.  2, 
clause  2,  imder  "VI.  \\Tiat  Constitutes  Ap- 
pointment.") 

In  the  case  noted  in  the  preceding  paragraph 
it  was  assumed  that  the  words  "over  thirty 
years  of  age"  excluded  candidates  who  had 
passed  their  thirtieth  birthday,  but  it  was  held 
that  the  particular  candidate  in  question,  hav- 
ing been  under  thirty  years  of  age  at  the  time  he 
was  nominated  by  the  President  and  confirmed 


by  the  Senate,  was  eligible  under  the  law,  and 
might  legally  accept  his  appointment  after 
passing  his  thirtieth  birthday,  the  acceptance 
of  the  office  by  the  appointee  being  distinct 
from  the  appointment  and  not  necessary  to 
render  the  appointment  complete.  In  other 
words,  that  the  candidate  in  question  was  not 
over  thirty  years  of  age  when  "appointed  "  and 
might,  therefore,  accept  such  appointment 
after  passing  his  thirtieth  birthday.  (File 
27223-12:1,  Jan.  27,  1915.) 

An  act  of  July  25,  1861,  section  3,  relating  to 
an  increase  in  the  Marine  Corps,  provided  ' '  that 
the  appointment  of  commissioned  officers  to  be 
made  under  the  provisions  of  this  act  shall  be  of 
persons  between  the  ages  of  twenty  and  twenty- 
five  years;  and  shall  be  subjected,  under  the 
direction  of  the  Secretary  of  the  'Rz.xy  to  an  ex- 
amination as  to  their  qualifications  for  the  serv- 
ice to  which  they  are  to  be  appointed . "  A  can- 
didate attained  the  age  of  twenty-five  years  on 
the  24th  day  of  April;  he  had  been  examined 
and  foimd  qualified  on  the  22d  of  April ;  on  the 
23d  he  was  nominated  to  the  Senate;  his  nomi- 
nation was  confirmed  on  the  14th  of  June  follow- 
ing: Held,  that  the  President  may  lawfully 
issue  a  commission  to  the  candidate  as  second 
Lieutenant  in  the  Marine  Corps  under  the  clr- 
cumstan ces  of  his  case  as  above-stated .  ( 10  Op . 
Atty.  Gen.,  308.) 

In  the  case  noted  in  the  preceding  paragraph, 
the  Attorney  General  stated:  "I  need  not  dis- 
cuss the  significance  of  the  word  appointment, 
for  it  has  various  meanings  and  the  true  sense 
can  only  be  known  by  a  study  of  the  subject 
matter  and  the  context  in  which  it  is  used. 
This  case  does  not  present  the  question,  at  what 
time  an  officer  is  so  authentically  certified  as  to 
be  known  and  respected  in  his  official  relations; 
nor  the  question,  when  he  is  so  inducted  into  his 
office  as  to  be  entitled  to  be  paid  for  his  official 
services;  nor  yet  the  question,  at  what  time  the 
officer  has  a  legal  right  to  receive  the  final  e\-i- 
dence  of  his  appointment,  to  wit,  the  commis- 
sion." The  question  applies  solely  to  the 
eligibility  of  the  candidate;  that  is,  had  the 
President  lawful  power  to  choose  him  to  be  a 
second  Lieutenant  of  Marines  at  the  time  when 
he  did  actually  choose  him  and  name  him  to  the 
Senate  for  office,  asking  the  Senate  to  consent  to 
and  ratify  his  act.  ' '  That  is  the  question  in  this 
case,  and  I  am  clearly  of  the  opinion  that 
Stoddard  was  eUgible  and  that  the  President 
had  lawful  power  to  appoint  him,  subject  only 
to  the  consent  of  the  Senate.  In  such  case  the 
Senate  has  no  power  to  appoint  but  the  power 
only  to  arrest  and  prevent  the  appointment  by 
the  President.  The  action  by  the  Senate  upon 
the  President's  nomination  is  always  and  neces- 
sarily relative,  for  all  that  it  can  do  is  to  reject  or 
affirm  what  the  President  has  already  done.  I 
am  of  opinion  that  it  is  lawful  and  right  to  give 
Mr.  Stoddard  his  commission."  (10  Op.  Atty. 
Gen.,  308.) 

An  act  of  July  14,  1862,  section  7,  prescribed 
the  age  of  chaplains  in  the  Nax-y.  Under  that 
act  it  was  held  that  the  President  could  not 
appoint  a  person  to  that  office  above  the  age 
hmit  of  35  years,  although  before  the  passage  of 
that  act  the  President  had  instructed  the  Sec- 
retary of  the  Na\'y  to  prepare  a  nomination  of 
the  person  in  question  to  the  Senate  for  the 


463 


Sec.  1371. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


ofllto  which  nommation  had  not,  however, 
actually  been  made.  If  the  nomination  had 
actually  been  made  by  the  President  prior  to 
the  act  of  July  14,  1862,  the  appointment  mifj;ht 
lawfully  have  been  made  after  confirmation  by 
the  Senate,  whether  such  action  of  the  Senate 
had  been  taken  before  or  after  the  date  of  said 
act,   this  being  in  accordance  vnth.  the  prior 


opinion  (10  Op.  Atty.  Gen.,  308)  holding  valid 
the  appointment  of  a  lieutenant  of  Marines  who 
was  of  lawful  age  when  nominated,  but  over  age 
when  confirmed.     (10  Op.  Atty.  Gen.,  324.) 

Date  of  appointment. — See  note  to  section 
1371,  below,  under  "Length  of  service  prior  to 
promotion." 


Sec.  1371.  [Medical  Corps ;  promotions  in.     Superseded.] 


Tliis  section  provided  as  follows: 

"Sec.  1371.  No  person  shall  be  appointed 
surgeon  until  he  has  served  as  an  assistant  sur- 
geon at  least  two  years,  on  board  a  public  vessel 
of  the  United  States  at  sea,  nor  until  he  has 
been  examined  and  approved  for  such  appoint- 
ment, by  a  board  of  naval  surgeons,  designated 
bv  the  Secretary  of  the  Navy."— (24  May,  1828, 
c.  121,  v.  4,  p.  313.) 

It  was  superseded  by  the  following  pro- 
vision in  the  act  of  February  13,  1897  (29  Stat. 
526):  "Hereafter  assistant  surgeons  shall  be 
regularly  promoted  and  commissioned  as  passed 
assistant  surgeons,  and  passed  assistant  siu-geons 
as  surgeons,  subject  to  such  examinations  as 
may  be  prescribed  by  the  Secretary  of  the 
Na\T." 

Examinations  were  discontinued  for  pro- 
motion of  staff  officers  in  grade  by  act  of  May  22, 
1917,  section  20  (40  Stat.,  89),  which  act  and 
section  also  reenacted  a  pro\'ision  in  the  act  of 
March  4,  1917  (39  Stat.,  1182),  requiring  exami- 
nations of  staff  officers  for  advancement  in 
rank. 

As  to  status  of  passed  assistant  sur- 
geons, see  note  to  section  1368,  Revised 
Statutes. 

Assistant  surgeons  are  promoted  to 
passed  assistant  surgeons  after  three  years'  serv- 
ice. Tliis  practice  was  originally  in  accordance 
with  the  provision  of  section  1556,  Revised  Stat- 
utes, that  "assistant  surgeons  of  three  years  serv- 
ice, who  have  been  found  qualified  for  promo- 
tion by  a  medical  board  of  examiners,"  shall 
be  allowed  "the  pay  of  passed  assistant  sur- 
geons." The  practice  has  continued,  although 
not  now  specifically  provided  for  by  law,  sec- 
tion 1556,  Re\dsed  Statutes,  with  reference  to 
the  pay  of  assistant  surgeons,  being  no  longer  in 
force.    (File  26280-68,  Apr.  12,  1916.) 

Assistant  surgeons  on  original  appointment 
have  the  rank  of  lieutenant  (junior  grade). 
(Act  Aug.  29,  1916,  39  Stat.,  577.)  Theyare 
entitled  to  advancement  to  the  rank  of  lieu- 
tenant with  the  line  officer  with  whom  or  next 
after  whom  they  take  precedence.  (Act  Aug. 
29,  191G,  39  Stat.,  576.)  Lieutenants  (junior 
grade)  of  the  line  are  entitled  to  promotion  to 
Lieutenant  after  not  less  than  three  years'  serv- 
ice in  grade  (act  Aug.  29,  1916,  39  Stat.,  576), 
except  that  durin»  the  existing  war  this  re- 
quirement as  to  length  of  service  shall  not 
applv  to  temporary  promotions  (act  May  22, 
1917;  sec.  5,  40  Stat!,  86.)  The  Secretary  of  the 
NaAy  has  discretion  to  provide  that  all  assist- 
ant surgeons  may  be  promoted  to  passed  as- 
sistant surgeons  at  the  same  time  that  they 
are  advanced  to  the  rank  of  lieutenant.  (File 
27223-37,  Apr.  G,  1918.) 

Passed  assistant  surgeons  are  promoted 
to  surgeons,  surgeons  are  promoted  to  medical 


inspectors,  and  medical  inspectors  are  pro- 
moted to  medical  directors,  all  by  seniority,  to 
fill  vacancies,  in  accordance  with  section  1480, 
Revised  Statutes,  and  the  "estabUshed  rules  of 
the  service"  (see  sec.  1458,  R.  S.),  subject  to  ex- 
amination, as  required  by  sections  1493  and 
1496,  Revised  Statutes,  and  the  act  of  Febru- 
ary 13,  1897,  above  quoted.  {In  this  connection 
see  note  to  sec.  1372,  R.  S.)  As  to  constitu- 
tionality of  laws  requiring  promotion  by  sen- 
iority, see  notes  to  sections  1458  and  1480, 
Revised  Statutes. 

Advancement  to  the  ranks  of  commander, 
captain,  and  rear  admiral  in  the  Staff  Corps  of 
the  Navy  are  to  be  made  by  selection  upon 
recommendation  of  a  board  of  officers  of  the 
coi-ps  concerned.  (Act  July  X,  1918,  40  Stat., 
718.) 

Subject  to  the  limitations  contained  in  laws 
prior  to  August  29,  1916,  as  to  the  number  of 
officers  in  certain  lower  grades  of  the  Medical 
Corps  (see  note  to  sec.  1368,  R.  S.),  the  Secre- 
tary of  the  Navy  has  discretion  to  provide  that 
all  passed  assistant  surgeons  shall  be  promoted 
to  surgeons  at  the  same  time  that  they  are  ad- 
vanced to  the  rank  of  lieutenant  commander 
(File  27223-37,  Apr.  6.  1918.) 

Pay  on  promotion. — All  officers  of  the 
Navy  advanced  in  grade  or  rank  pursuant  to 
law  shall  be  allowed  the  pay  and  allowances  of 
the  higher  grade  or  rank  from  the  dates  stated 
in  their  commissions.  (Act  Mar.  4,  1913,  37, 
Stat.,  892;  see  sec.  1561,  R.  S.) 

Suspension  from  promotion  of  officers 
who  fail  to  qualify  when  examined  is  required 
by  section  1505,  Revised  Statutes,  as  amended 
by  act  of  March  11,  1912  (37  Stat.,  73). 

Length  of  service  prior  to  promotion. — 
The  three  years'  service  of  assistant  surgeons 
prior  to  promotion  may  lawfully  be  regarded 
as  commencing  on  the  date  of  their  appoint- 
ment rather  than  on  the  date  of  actual  entry 
upon  the  duties  of  the  office.  "In  support  of 
this  view  it  is  urged  that  the  uniform  practice 
of  the  Navy  Department,  extending  through 
many  years,  has  been  to  have  regard  to  the  date 
of  appointment  rather  than  the  other  date  as 
fixing  the  beginning  of  the  required  three 
years'  ser\dce,  a  practice  which  is  said  to  rest 
in  the  custom  in  the  Navy  of  advancing  by 
seniority.  As  illustrating  the  reason  of  the 
practice  it  is  said  that  wnen  several  men  are 
examined  for  appointment  as  assistant  surgeon 
the  respective  numbers  assigned  to  them  upon 
qualifying  professionally  are  based  upon  the 
order  of  proficiency  shown  by  the  examination. 
If  the  circumstance  of  location  nearer  Wash- 
ington, which  would  enable  one  applicant  to 
execute  his  oath  of  office  earlier  than  could  one 
who  was  not  so  conveniently  located,  should 
be  gi-\'en  effect,  then  it  could  follow  that  the 


464 


The  Navy. 


PL  2.   REVISED  STATUTES. 


Sec.  1372. 


one  entitled  by  his  examination  to  the  first 
number  might  have  to  fall  below  the  others, 
and  this  for  no  other  reason  than  that  the  one 
entitled  to  the  higher  position  in  the  grade 
could  not  get  his  oath  of  office  executed 
as  soon  as  one  more  conveniently  located 
*  *  *.  We  find  no  statute  which  prohibits 
said  practice,  and  administrative  action  is 
entitled  to  consideration.  Ross's  case,  283 
U.  S.,  530,  538.  It  does  not  appear  that  any 
positive  law  has  been  disregarded,  nor  does  it 
appear  that  the  four  or  five  days'  difference 
in  the  dates  was  caused  by  any  fault  or  negli- 
gence of  the  plaintiff  or  resulted  from  any  other 
cause  than  a  supposed  orderly  practice  long 
continued.  As  stated  by  the  Judge  Advocate 
General  in  re  John  A.  Nelson,  April  12,  1916, 
'The  only  argument  in  favor  of  the  legality  of 
the  present  practice  is  that  it  is  expedient  and 
has  so  long  continued  that  it  may  be  regarded 
as  having  been  known  to  and  acquiesced  in 
by  Congress.'"  (Toulon  v.  U.  S.,  52  Ct.  Cls., 
333). 

Advancement  in  rank. — By  act  of  August 
29,  1916  (39  Stat.,  576),  it  was  provided  that 


"Ofiicers  of  the  lower  grades  of  the  Medical 
Corps,  Pay  Corps,  Construction  Corps,  and 
Corps  of  Civil  Engineers  shall  be  advanced  in 
rank  up  to  and  including  the  rank  of  lieutenant 
commander  with  the  officers  of  the  line  with 
whom  or  next  after  whom  they  take  precedence 
under  existing  law:  Provided,  That  all  assistant 
surgeons  shall  from  date  of  their  original  ap- 
pointment take  rank  and  precedence  with 
lieutenants  (junior  grade)." 

By  act  of  May  22,  1917,  section  17  (40  Stat., 
89),  it  was  enacted  that  the  above  clause  in  the 
act  of  August  29,  1916,  shall  not  operate  "to 
disturb  the  relative  position  of  ofiicers  in  the 
Medical  Corps  with  reference  to  precedence  or 
promotion,    but    all    such    officers   otherwise 

Sualified  shall  be  advanced  in  rank  with  or 
liead  of  ofiicers  in  said  corps  who  were  their 
juniors  on  the  date  of  said  act." 

By  act  of  July  1,  1918  (40  Stat.,  718),  it  was 
provided  that  advancement  to  the  ranks  of 
commander,  captain,  and  rear  admiral  in  the 
Staff  Corps  of  the  Navy  shall  be  made  by  se- 
lection in  the  manner  therein  prescribed. 
See  note  to  section  1474,  Revised   Statutes. 


Sec.   1372.    [Medical   Corps;  rank  of  assistant  surgeons  in  case  of  delayed 
examination.     Obsolete.] 


This  section  provided  as  follows: 

'"Sec.  1372.  WTien  any  assistant  sui-geon 
was  absent  from  the  United  States,  on  duty, 
at  the  time  when  others  of  his  date  were  ex- 
amined, he  shall,  if  not  rejected  at  a  subsequent 
examination,  be  entitled  to  the  same  rank  with 
them;  and  if,  from  any  cause,  his  relative  rank 
can  not  be  assigned  to  him,  he  shall  retain  his 
original  position  on  the  register." — (3  Mar., 
1835,  c.  27,  s.  1,  V.  4,  p.  757.) 

It  was  rendered  obsolete  by  the  abolish- 
ment of  competitive  examinations  in  accord- 
ance with  the  Attorney  General's  opinion 
noted  below.  Also,  examinations  for  promo- 
tion of  assistant  surgeons  to  higher  grades  have 
now  been  discontinued,  in  accordance  with  the 
act  of  May  22,  1917,  noted  above  under  section 

1371,  and  the  advancement  in  rank  of  staff 
officers  is  regulated  by  the  acts  of  August  29, 
1916,  and  July  1,  1918,  noted  above,  under  sec- 
tion 1371. 

Promotion  by  seniority  and  not  competi- 
tive examination. — The  practice  of  the  Navy 
Department,  requiring  competitive  examina- 
tions to  determine  the  relative  position  of  med- 
ical officers  of  the  Navy  preparatory  to  pro- 
motion to  the  grade  of  surgeon,  which  originated 
prior  to  the  act  of  May  24,  1828  [now  sections 
1370  and  1371,  Revised  Statutes],  was  recog- 
nized and  confirmed  by  a  clause  in  the  act  of 
Congress  approved  March  3,  1835,  which  is 
embodied  in  the  Re\-ised  Statutes  as  section 

1372.  (17  Op.  Atty.  Gen.,  48.) 

The  system  of  competitive  examinations  to 
determine  the  relative  merit  of  assistant  sur- 
geons preliminary  to  promotion,  and  thus  to 
define  their  rank  by  seniority,  has,  under  author- 
ity of  section  1372,  been  continued  to  the  pres- 
ent time  [February  25,  1881],  and  the  imiiorm 
practice  of  the  Na\'y  Department  has  been  to 
assign  to  the  members  of  each  class  of  assistant 
surgeons  examuied  and  found  qualified  for 
promotion,  positions  in  accordance  with  their 


relative  standing  as  determined  and  reported 
by  the  board  of  examiners.  (17  Op.  Atty. 
Gen.,  48.) 

However,  the  custom  of  requiring  competi- 
tive examination  of  assistant  surgeons  and 
assigning  them  positions  in  the  Navy  Register 
in  order  of  relative  merit  as  ascertained  and 
reported  by  the  board  of  examiners,  is  not  cor- 
rect under  the  present  law.  A  clause  in  the  act 
of  March  3,  1871  (16  Stat.,  536),  contemplated 
that  promotion  in  the  staff  corps,  including  the 
Medical  Corps,  should  be  by  seniority,  and  not 
by  competitive  examination.  This  clause  did 
not  find  its  way  into  the  first  edition  of  the 
Revised  Statutes.  It  was  reenacted  by  act  of 
February  27, 1877  (19  Stat.,  249),  and  as  so  reen- 
acted was  included  in  the  second  edition  of  the 
Revised  Statutes  as  section  1480.  The  effect  of 
it  is  to  adopt  the  rule  of  seniority  in  regard  to 
promotions  from  one  grade  to  another  in  the  Staff 
Corps,  including,  among  others,  the  Medical 
Corps.     (17  Op.  Atty.  Gen.,  48.) 

The  rule  that  officers  shall  be  assigned  rank 
in  the  order  of  merit  as  determined  by  competi- 
tive examinations  was  never  prescribed  by  law, 
but  was  a  usage  that  had  grown  up  in  the  Navy 
Department.  The  propriety  of  that  usage  was, 
perhaps,  recognized  by  the  act  of  1835,  later 
embodied  in  section  1372,  Revised  Statutes. 
However,  that  act  was  at  most  a  recognition  of 
the  previous  practice  in  an  impUed  way,  and 
not  by  a  very  clear  implication.  The  Secretary 
of  the  Navy  was  not  required  by  law  to  assign 
relative  rank  according  to  the  results  of  com- 
petitive examinations,  but  the  matter  was 
within  his  discretion.  The  Secretary  had  a 
right  to  maintain  this  as  a  rule,  or  to  rescind  it 
the  moment  after  it  was  carried  into  execution. 
(U.  S.  ex  rel.  Hall  v.  Whitney,  5  Mackey  (D.  C), 
370.) 

Following  the  Attorney  General's  opinion 
above  noted,  the  Secretary  did  rescind  the  pre- 
vious rule  of  assigning  relative  rank  by  com- 


465 


Sec.  1376. 


Pt.2.   REVISED  STATUTES. 


The  Navy. 


petitive  examinationg.  WTiether  he  thought 
that  the  act  of  1877  required  that  officers  should 
rank  according  to  seniority  alone,  or  whatever 
were  the  grounds  of  liis  action,  it  wa*.  within  the 
Bcope  of  his  authority.  Accordingly,  where  an 
assistant  sui^eon  was  assigned  relative  rank 
according  to  the  previous  nile,  as  the  result  of  a 
competitive  examination,  and  later,  following 
the  Attorney  General's  opinion,  was  reduced 
from  the  rank  which  he  had  already  been 
assigned  and  given  a  lower  position  to  which  his 
seniority  entitled  him,  held,  that  the  court 
could  not  by  mandamus  proceedings  compel 


the  Secretary  of  the  Navy  to  restore  him  to  his 
former  position  in  the  N'avy  Register.  (U.  S. 
ex  rel.  Hall  i;.Whitney,5Mackey  (D.C.),  370.) 
"It  is  within  the  authority  of  the  Secretary 
of  the  Navy  to  adopt  a  rule  by  which  the  rela- 
tive rank  of  officers  of  the  Navy  shall  be  regu- 
lated, and  afterwards  to  rescind  such  rule  and 
adopt  another,  although  the  latter  rule  may 
have  the  effect  of  placing  an  oflicer  in  a  lower 
relative  rank  than  that  assigned  him  under  the 
provisions  of  the  pre\dou3  rule.  "  (U.S.  ex  rel. 
nail  V.  \\liitney,  5  Mackey  (D.  C),  370.) 


Sec.  1373.  [Medical  Corps;  surgeon  of  the  fleet.]  The  President  may 
designate  among  the  surgeons  in  the  service,  and  appoint  to  every  fleet  or 
squadron  an  experienced  and  intelligent  surgeon,  who  shall  be  denominated 
"surgeon  of  the  fleet,"  and  shall  be  surgeon  of  the  flag-ship. — (24  May,  1828. 
c.  121,  s.  2,  V.  4,  p.  313.) 


Pay  of  fleet  surgeons  was  fixed  at  $4,400  per 

annum  by  section  1556,  Revised  Statutes. 

The   word    "surgeons"   as    used   in   this 

section  has  been  construed  to  mean  "medical 

officers, "  and  not  as  restricting  details  for  this 


duty  to  officers  in  the  grade  of  "surgeon."     (See 
Art.  R-1826  (2),  Navy  Regs.,  1913.) 

See  note  to  sections  1382  and  1393, 
Revised  Statutes,  for  cases  relating  to 
appointment  and  pay  of  fleet  officers. 


Sec.  1374.  [Medical  Corps;  duties  of  surgeon  of  the  fleet.]  The  surgeon 
of  the  fleet  shall,  in  addition  to  his  duties  as  surgeon  of  the  flag-ship,  examine 
and  approve  all  requisitions  for  medical  and  hospital  stores  for  the  squadron 
or  fleet,  and  inspect  their  quaUty.  He  shall,  in  diflicult  cases,  consult  with 
the  surgeons  of  the  several  ships,  and  he  shall  make,  and  transmit  to  the  Navy 
Department,  records  of  the  character  and  treatment  of  diseases  in  the  squad- 
ron or  fleet.— (24  May,  1828,  c.  121,  s.  2,  v.  4,  p.  313.) 

Sec.  1375.  [Medical  Corps;  assistant  to  Bureau  of  Medicine  and  Surgery.] 
A  surgeon,  assistant  surgeon,  or  passed  assistant  surgeon,  may  be  detailed  as 
assistant  to  the  Bureau  of  Medicine  and  Surgery,  [who  shaU  receive  the  highest 
shore  pay  of  his  grade.]— (16  July,  1862,  c.  183,  s.  18,  v.  12,  p.  587.  27  Feh., 
1877,  c.  69,  V.  19,  p.  244.) 


See  note  to  section  421,  Revised  Statutes,  for 

cases  relating  to  assistants  to  chiefs  of  bureaus 

in  the  Navy  Department. 

The  amendment  to  this  section,  con- 
cerning the  pay  of  officers  detailed  thereunder 
as  assistants  to  the  Bureau  of  Medicine  and 
Surgery,  contained  language  which  clearly 
gave  it  a  retrospective  character.  (15  Op. 
Atty.  Gen.,  259.) 

Pay  of  assistant. — Both  the  Navy  and 
Treasury  Departments  have  in  practice  uni- 


formly interpreted  tliis  law  as  entitling  surgeons 
detailed  as  assistants  to  the  Bureau  of  Medicine 
and  Surgery  to  the  shore  pay  given  to  a  siirgeon 
after  20  years'  service,  although  they  may 
not  have  served  as  surgeons  over  5  years;  and 
these  officers  have  always  been  so  paid.  This 
shows  that  the  word  "grade"  is  intended  to 
give  the  officer  the  liighest  pay  of  liis  "rank. " 
(Schuetze  v.  U.  S.,  24  Ct.  Cls.,  299;  as  to  differ- 
ence between  "grade"  and  "rank,"  see  note 
to  sec.  1362,  R.  S.) 


Sec.  1376.  [Supply  Corps ;  organization  of.     Superseded.] 


This  section  provided  as  follows: 
"Sec.  1376.  The  active  list  of  the  Pay  Corps 
of  the  Navy  shall  consist  of  thirteen  pay  direc- 
tors, thirteen  pay  inspectors,  fifty  paymasters, 
thirty  passed  assistant  paymasters,  and  twenty 
assistant  paymasters." — (15  July,  1870,  c  .295, 
s.  11,  V.  16,  p.  334.  3  Mar.,  1871,  c.  117,  s.  6, 
V.  16,  p.  5.36.) 

It  was  superseded  by  a  clause  in  the  naval 
appropriation  act  of  August  5,  1882  (22  Stat. 
285),  which  provided  that  "the  active  list  of 


the  Pay  Corps  of  the  Navy  shall  hereafter  con- 
sist of  thirteen  pay  directors,  thirteen  pay  in- 
spectors, forty  paymasters,  twenty  passed 
assistant  paymasters,  and  ten  assistant  pay- 
masters." 

The  number  of  officers  was  increased 
by  act  of  March  3,  1899  (30  Stat.,  1038),  which 
provided  that ' '  the  active  list  of  passed  assistant 
and  assistant  paymasters  of  the  Pay  Corps  shall 
hereafter  consist  of  thirty  and  forty,  respec- 
tively." 


466 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1376. 


A  further  increase  was  made  by  act  of 
March  3,  1903  (32  Stat.,  1197),  which  provided 
that  "the  grades  of  the  active  list  of  the  Navy 
hereinafter  designated  shall  be  so  increased  that 
there  shall  be  *  *  *  two  additional  i)ay  in- 
spectors, iu  all  fifteen;  thirty-six  additional 
paymasters,  in  all  seventy-six  j  twenty-six  addi- 
tional passed  assistant  and  assistant  paymasters, 
in  all  ninety-six;  *  *  *  not  more_  than 
twenty  assistant  paymasters,  *  *  *  in  ad- 
dition to  those  necessary  to  fill  vacancies  in  said 
grades,  shall  be  appointed  in  any  one  calendar 
year. ' ' 

The  Pay  Corps  was  again  increased  by 
act  of  August  22, 1912  (37  Stat.,  328),  which  pro- 
vided that  "the  grades  of  the  active  list  of  the 
Pay  Corps  of  the  Navy  are  hereby  increased  by 
ten  additional  paymasters,  in  all  eighty-six 
paymasters,  and  by  twenty  additional  passed 
assistant  and  assistant  paymasters,  in  all  one 
hundred  and  sixteen  passed  assistant  and  assist- 
ant paymasters:  Provided,  That  the  total  in- 
crease of  the  Pay  Corps  of  the  Navy  shall  not 
exceed  twenty  during  the  first  fiscal  year." 

The  number  of  oflB.cers  was  again  in- 
creased by  act  of  August  29,  1916  (39  Stat., 
576),  which  provided  that  "the  total  author- 
ized number  of  commissioned  officers  of  the 
active  list  of  the  following  staff  corps,  exclusive 
of  commissioned  warrant  officers,  shall  be  based 
on  percentages  of  the  total  number  of  com- 
missioned officers  of  the  active  list  of  the  line 
of  the  Navy,  as  follows:  Pay  Corps,  twelve 
per  centum    *    *    *." 

The  same  act  (39  Stat.,  577)  provided  that 
"the  total  number  of  commissioned  officers  of 
the  active  list  of  the  following  mentioned  staff 
corps  at  any  one  time,  exclusive  of  commis- 
sioned warrant  officers,  shall  be  distributed  in 
the  various  grades  of  the  respective  corps  as 
follows:  *  *  *  Pay  Corps:  One-half  pay  di- 
rectors with  the  rank  of  rear  admiral  to  four  pay 
directors  with  the  rank  of  captain,  to  eight  pay 
inspectors  with  the  rank  of  commander,  to 
eighty-seven  and  one-half  in  the  grades  below 
pay  inspector.  *  *  *  "WTien  there  is  an  odd 
number  of  officers  in  the  grade  or  rank  of  rear 
admiral  in  the  line  or  in  each  corps,  the  lower 
division  thereof  shall  include  the  excess  in  num- 
ber, except  where  there  is  but  one.  ^Vheneve^ 
a  final  fraction  occurs  in  computing  the  author- 
ized number  of  any  corps,  grade,  or  rank  in  the 
naval  service,  the  nearest  whole  number  shall 
be  regarded  as  the  authorized  number:  Provided, 
That  at  least  one  officer  shall  be  allowed  in 
each  grade  or  rank.  For  the  purpose  of  deter- 
mining the  authorized  number  of  officers  in  any 
grade  or  rank  of  the  line  or  of  the  staff  corps, 
there  shall  be  excluded  from  consideration 
those  officers  carried  by  law  as  additional  num- 
bers, including  staff  officers  heretofore  perma- 
nently commissioned  with  the  rank  of  rear 
admiral,  and  nothing  contained  herein  shall  be 
held  to  reduce  below  that  heretofore  authorized 
by  law  the  number  of  officers  in  any  grade  or 
rank  in  the  staff  corps." 

By  act  of  June  4,  1920  (41  Stat.,  834),  it  was 
pro\'ided  "that  the  number  of  commissioned 
officers  of  the  line,  permanent,  temporary,  and 
reserve  on  active  duty  shall  not  exceed  4  per 
centum  of  the  total  authorized  enlisted  strength 
of  the  Regular  Navy,  and  the  niunber  of  staff 


officers  on  active  duty  of  whatever  kind  shall 
be  in  the  same  proportions  as  authorized  by 
existing  law  *  *  *  That  nothing  herein 
shall  be  construed  as  reducing  the  permanent 
commissioned  *  *  *  strength  of  the  Regu- 
lar Navy  as  authorized  by  existing  law." 

The  temporary  appointment  of  addi- 
tional oflB.cers  during  the  period  of  the  existing 
war  was  authorized  by  the  act  of  May  22,  1917, 
section  4  (40  Stat.,  85),  as  amended  by  act  of 
July  1,  1918  (40  Stat.,  715),  which  also  author- 
ized temporary  appointments  and  promotions  to 
fill,  during  the  period  of  the  war,  the  deficiency 
existing  prior  to  May  22,  1917,  in  the  total  num- 
ber of  commissioned  officers  authorized  by  the 
act  of  August  29,  1916. 

The  desigfnation  of  the  "Pay  Corps"  was 
changed  to  "Supply  Corps"  by  act  of  July  11, 
1919  (41  Stat.,  147). 

"The  number  of  passed  assistant  and 
assistant  paymasters  in  the  Navy  to  be 
appointed  in  each  of  the  two  grades  under  the 
act  of  March  3,  1903  (32  Stat.,  1197),  not  being 
prescribed  by  that  act,  is  necessarily  left  to 
Executive  discretion,  to  be  controlled  by  the 
general  terms  and  regulations  providing  for  the 
advancement  of  officers  in  the  naval  service. 
Nor  is  it  required  that  the  relative  proportion 
of  officers  in  each  of  those  grades  shall  remain 
always  the  same,  a  change  in  the  proportion 
being  within  the  discretion  of  the  Executive, 
unless  controlled  by  general  laws  or  regula- 
tions." (26  Op.  Atty.  Gen.,  511;  see  also 
Williams  v.  U.  S.,  47  Ct.  Cls.,  316;  Crapo  v. 
U.  S.,50Ct.  Cls.,  337.) 

While  the  total  increase  of  26  in  the  number 
of  assistant  and  passed  assistant  paymasters, 
made  by  the  act  of  March  3,  1903,  may  be 
placed  in  the  grade  of  passed  assistant  paymas- 
ter, which  was  limited  by  the  act  of  March  3, 
1899, to  30,  thereby  increasing  the  total  nurn- 
ber  of  passed  assistant  paymasters  to  56,  this 
ifumber  can  not  be  exceeded  under  the  act  of 
March  3,  1903.  That  act  did  not  have  the 
effect  of  also  authorizing  the  transfer  of  the  40 
assistant  paymasters,  prescribed  by  the  act  of 
March  3,  1899,  to  the  grade  of  passed  assistant 
paymaster,  thereby  increasing  the  latter  grade 
to  76,  and  leaving  no  officers  in  the  grade  of 
assistantpayniaster.  (File3022-7, Apr.  10,1908.) 
The  above  interpretations  of  the  act  of  March 
3,  1903,  were  applied  to  the  increase  made  by 
the  act  of  August  22,  1912,  of  "twenty  addi- 
tional passed  assistant  and  assistant  paymas- 
ters," this  total  increase  being  placed  in  the 
grade  of  passed  assistant  paymaster,  thereby 
increasing  that  grade  to  76,  and  retaining  in  the 
grade  of  assistant  paymaster  the  40  positions 
authorized  by  the  act  of  March  3,  1899.  (File 
1660-139,  Bu.  Nav.) 

The  act  of  August  29, _  1916,  authorizes  87* 
per  cent  of  the  commissioned  officers  of  the 
Pay  Corps  in  the  grades  below  pay  insj^ector 
without  fixing  the  number  in  each  grade.  In 
other  words,  it  authorizes  an  increase  in  the 
number  of  officers  allowed  in  the  three  grades 
of  paymaster,  passed  assistant  pajonaster,  and 
assistant  pajTuaster,  combined,  just  as  the  acts 
of  March  3, 1903,  and  August  22, 1912,  provided 
increases  in  the  grades  of  passed  assistant  pay- 
master and  assistant  paymaster,  without  pro- 
adding  how  the  increases  should  be  distributed. 


467 


Sec.   1376. 


Pt.J.   REVISED  STATUTES. 


The  Navy. 


Accord ini,'ly.  hchl.  that  the  act  of  August  2!>, 
lOK),  should  receive  the  same  construction  as 
the  previous  acts,  and  that  the  distribution  of 
the  increase  among  tlie  grades  below  pay 
inspector  has  been  left  to  the  executive  dis- 
cretion. Hence,  S7i  per  cent  of  the  increase 
in  the  Pay  Corps  may  be  distributed  among  the 
three  lower  grades  in  such  proportions  as  may 
best  serve  the  interests  of  the  Navy.  This 
would  result  in  having  at  least  40  officers  in 
the  grade  of  assistant  ]iaymaster  when  the  three 
lower  grades  are  full,  the  act  of  August  29,  191G, 
not  having  the  el'lect  of  repealing  the  act  of 
March  3,  1899,  which  fixed  the  number  of  assist- 
ant paymasters  at  40.  In  other  words,  although 
additional  officers,  authorized  from  time  to 
time,  may  be  distributed  between  the  lower 
grades  of  the  Pay  Corps  where  not  otherwise 
provided  by  Congress,  the  number  of  assistant 
paymasters  specifically  authorized  by  previous 
laws  can  not  be  distributed  so  as,  for  example, 
to  place  in  the  grades  of  passed  assistant  pay- 
master and  pajTnaster  the  total  number  of  pay 
officers  allowed  below  the  grade  of  pay  inspector 
without  retaining  any  oflicers  in  the  grade  of 
assistant  paymaster.  "  (File  27223-37,  Mar.  20, 
1918.) 

See  note  to  section  1380,  Revised  Statutes,  re 
promotion  of  assistant  paymasters. 

Acting  officers. — See  section  1381,  Revised 
Statutes,  and  note  to  section  1410,  Revdsed 
Statutes. 

Clerks  to  officers  of  the  Supply  Corps. — 
By  naval  appropriation  act  of  March  3,  1915 
(38  Stat.,  942),  three  grades  were  established 
of  clerks  to  pay  officers,  viz,  acting  pay  clerks, 
appointed  by  the  Secretary  of  the  Navy;  pay 
clerks,  warranted  by  the  President;  and  chief 
pay  clerks,  commissioned  by  the  President  by 
and  with  the  advice  and  consent  of  the  Senate. 

Special  disbursing  agents  are  authorized 
to  be  employed  by  section  3614,  Revised  Stat- 
utes.    (30  Op.  Atty.  Gen.,  132.) 

Disbursing  officers  abroad  are  not  to  be 
employed  for  naval  service,  under  contract  or 
otherwise,  unless  they  hold  appointments  con- 
firmed by  the  Senate.     (Sec.  1550,  R.  S.) 

A  naval  reserve,  composed  of  persons  who 
have  been  found  qualified  by  examination  for 
commissions  in  any  reserve  or  volunteer  naval 
force  hereafter  organized,  other  than  the  Naval 
Militia,  is  authorized  by  act  of  February  16, 1914, 
section  21  (38  Stat.,  289);  which  act  authorizes 
the  President,  when  exigency  demands,  to  issue 
commissions  in  tlie  Regular  Navy  to  persons 
so  qualified;  and  also  authorizes  him  to  com- 
mission or  warrant  former  officers  who  have 
been  honorably  discharged  from  the  Navy. 

As  to  other  auxiliaiy  naval  forces,  see  note 
to  section  13()3,  Revised  Statutes. 

Number  of  officers  not  to  be  increased 
without  explicit  legislation. — (See  note  to 
sec.  1363,  R.  S.) 

The  Pay  Corps  consists  of  officers  commis- 
sioned by  the  President^  and  clerks  and  others 
who  are  not  so  commissioned  do  not  belong  to 
the  Pay  Corps.  This  is  obvious  from  the  lan- 
guage of  section  1378,  Revised  Statutes  (U.  S. 
V.  Mouat,  124  U.  S.,  303.) 

Duties  of  Supply  Corps. — The  number  of 
pay  officers  for  the  Navy  is  fixed  by  law,  and 
each  must  give  bond  for  the  faithful  discharge  of 


his  duties.  They  are  prohibited  from  loaning 
money  to  brother  officers.  With  these  excep- 
tions there  are  no  statutes  prescribing  their 
duties  or  functions.  These  latter  spring  from 
regulations  issued  from  time  to  time  by  the 
Secretary  of  the  Na\'j^  pursuant  to  section  161, 
Revised  Statutes.  Such  regulations,  when  not 
inconsistent  with  law,  are  binding  upon  the 
Comptroller  of  the  Treasury,  and  pay  officers 
are  amenable  to  court-martial  for  violation 
thereof.  (30  Op.  Atty.  Gen.,  376, 171  S.  and  A. 
Memo.,  3611.) 

Decisions  of  Comptroller. — Disbursing 
officers  may  apply  for  and  obtain  decision  of  the 
Comptroller  of  the  Treasury  concerning  legal- 
ity of  proposed  payments  (act  July  31 ,  1984 ,  sec. 
8,  28  Stat.,  208);  and  may  appeal  to  the  Comp- 
troller of  the  Treasury  from  disallowances  in 
their  accounts  by  the  Auditor  for  the  Navy 
Department.  (Same  act  and  section.)  Re- 
quests for  advance  decisions  of  the  Comptroller 
of  the  Treasury  must  be  forwarded  by  pay 
officers  through  the  Secretary  of  the  Navy; 
but  appeals  to  the  Comptroller  from  disallow- 
ances by  the  Auditor  for  the  Navy  Department 
may  be  forwarded  by  them  direct.  (Art. 
1-2205,  Naval  Instructions,  1913;  90  S.  and  A. 
Memo.,  836.) 

On  general  subject  of  accounting  see 
note  to  section  236,  Revised  Statutes;  and  see 
Title  XL,  "The  PubUc  Moneys,"  sections 
3591-3659,  Revised  Statutes. 

Disbursing  officers  of  the  Navy  shall  render 
their  accounts  and  vouchers  direct  to  the 
proper  accounting  officer  of  the  Treasury.  (Sec. 
3622,  R.  S.,  as  amended.) 

Secretary  of  the  Treasury  is  required  to 
report  annually  to  Congress  disbursing  officers 
delinquent  in  rendering  accounts.  (Act  May 
28,  1896,  29  Stat.,  179.) 

Failure  in  rendering  accounts  as  provided 
by  law  is  punishable  as  embezzlement  by  sec- 
tion 90,  Criminal  Code,  act  of  March  4, 1909  (35 
Stat.,  1105);  other  proceedings  against  delin- 
quent officer  are  provided  for  by  sections 
3624-3638,  Revised  Statutes,  and  acts  of  July 
31,  1894  (28  Stat.,  206),  and  May  28,  1896,  sec- 
tion 4  (29  Stat.,  179.) 

Accounts  of  pay  officer  of  lost  or  captured 
vessel;  see  section  284,  Revised  Statutes  for 
provisions  concerning. 

Settlement  of  outstanding  checks  and  ac- 
counts of  disbursing  officers.  (See  sees.  306- 
310,  R.  S.,  and  art.  R-4334,  Navy  Regs.  1913.) 

Lost  checks,  procedure  with  reference  to.  (See 
sees.  3646,  3647,  R.  S.;  act  of  Feb.  23,  1909,  35 
Stat.,  643,  and  art.  R-4337,  Navy  Regs.,  1913.) 

Advances  of  publicmoney  are  prohibited 
by  section  3648,  Revised  Statutes,  with  certain 
exceptions  contained  in  that  section  and  in 
section  1563,  Revised  Statutes,  as  amended 
by  act  of  March  4,  1917  (39  Stat.,  1181);  and 
unauthorized  advances  are  punishable  as  em- 
bezzlement under  section  87,  Criminal  Code, 
act  of  March  4,  1909  (35  Stat.,  1109.) 

Requisitions  for  advances  to  disbursing  offi- 
cers and  agents  of  the  Navy  may  be  issued  by 
the  Secretary  of  the  Navy  under  a  "general 
account  of  advances."  (Act  June  19,  1878, 
sec.  1,  20  Stat.,  167.) 

Exchange  of  Government  funds  for  other 
funds,  with  certain  exceptions,  is  prohibited; 


468 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1378. 


disbursing  officer  violating  this  prohibition 
shall  be  suspended  from  duty  immediately, 
and  the  matter  reported  to  the  President  to 
the  end  that  he  may  be  promptly  removed 
from  office  or  restored  to  duty  (Sec.  3639  and 
8651,  R.  S.);  and  such  unauthorized  exchange 
of  govermnent  funds  is  punishable  as  embez- 
zlement under  section  89,  Criminal  Code,  act 
of  March  4,  1909  (35  Stat.,  1105).  See  sec- 
tion 1624.  Revised  Statutes,  article  14. 

Depositing-  public  money  in  place  not 
authorized  by  law  is  punishable  as  embezzle- 
ment under  section  87,  Criminal  Code,  act  of 
March  4,  1909  (35  Stat.,  1105);  a  disbursing  offi- 
cer who  deposits  money  in  a  bank  not  desig- 
nated as  a  depositor}^  in  accordance  with  sec- 
tions 3620  and  3639,  Revised  Statutes,  is  liable 
with  his  sureties  for  any  loss  that  may  arise  from 
the  failure  of  such  bank  (20  Op.  Atty.  Gen.,  24); 
and  the  conduct  of  bankers  or  officers  of  banks 
in  knowingly  receiving  such  money  on  deposit 
is  punishable  as  embezzlement  by  section  96, 
Criminal  Code,  act  of  March  4,  1909  (35  Stat., 
1106.) 

All  moneys  received  by  any  officer  for  the 
United  States  must  1)e  promptly  paid  into  the 
Treasury,  without  deduction  (sec.  3617,  R.  S.); 
officers  violating  this  requirement  shall  be  re- 
moved from  office  and  forfeit  moneys  withheld 
(sec.  3619,  R.  S.);  and  such  failure  to  deposit 
public  money  when  required  so  to  do  is  punish- 
able as  embezzlement  (sec.  91,  Criminal  Code, 
act  Mar.  4, 1909,  35  Stat.,  1105).  But  see  note  to 
section  236,  Revised  Statutes,  under  "Set-off." 

Failing'  safely  to  keep  public  moneys  in 
the  care  of  a  disbursing  officer  is  punishal)le  as 
embezzlement.  (Sec.  88,  Criminal  Code,  act 
Mar.4, 1909,  35  Stat.,  1105.)  See  section  1624, 
Re^dsed  Statutes,  article  14. 

Making  false  returns,  keeping  false  ac- 
counts, or  embezzling  public  or  private  money 
or  property,  shall  be  punished  by  fine  and  im- 
prisonment by  any  court,  civil  or  military,  hav- 
ing jurisdiction.  (See.  5306,  R.S.)  See  section 
1624,  Revised  Statutes,  article  14. 

Making  false  or  fictitious  entries  in  accoimts 
or  records,  or  making  false  reports  of  moneys  or 
securities  belon^g  to  the  United  States  or  to 
any  person,  or  aiding  or  abetting  therein,  shall 
be  punished  by  fine  of  not  more  than  $5,000,  or 
imprisonment  for  not  more  than  10  years,  or 
both.     (Act  Mar.  4,  1911,  36  Stat.,  1355.) 

Trading  in  Federal  or  State  funds  is 
punishal)le  under  section  103,  Criminal  Code, 
act  of  March  4, 1909  (35  Stat.,  1107). 

Any  officer  of  the  United  States  who  sells  for 
a  premium  any  Treasury  note  or  other  public 


security  not  his  own  property,  without  account- 
ing for  such  premium,  shall  be  forthwith  dis- 
missed from  office.     (Sec.  3652,  R.  S.) 

Responsibility  of  disbursing  oflB.cers. — 
Upon  application  to  Court  of  Claims,  disbursing 
officers  may  be  relieved  of  responsibility  for 
losses  incurred  without  fault  or  neglect  on  their 
part.  (Judicial  Code,  act  Mar.  3,  1911,  sees. 
145,  147,  36  Stat.,  1136,  11.37.) 

Disbursing  officers  of  the  Navy  shall  be 
relieved  by  the  accounting  officers  of  responsi- 
bility on  account  of  loss  or  deficiency  deter- 
mined by  the  Secretary  of  the  Navy  to  have 
occurred  without  fault  or  negligence  on  the 
part  of  such  disbursing  officers  while  they  were 
in  the  line  of  their  duty.  (Act  July  11,  1919, 
41  Stat.,  132;  see  also  similar  provision  in  the 
same  act  (41  Stat.,  153)  as  to  losses  incurred 
during  the  "present  emergency"  due  to  mili- 
tary necessity  or  accidental  circumstances.) 

Responsibility  of  disbursing  officers  for  pay- 
ments made  by  order  of  commanding  officers: 
See  section  285,  Revised  Statutes,  and  cases 
noted  thereunder;  see  also  note  to  section  176, 
Revised  Statutes. 

Embezzlement. — On  general  subject,  see 
sections  86-96,  Criminal  Code,  act  of  March  4, 
1909  (35  Stat.,  1105,  1106),  and  section  1624, 
Revised  Statutes,  article  14. 

Receipts. — Taking  receipt  for  larger  sum 
than  paid  is  punishable  as  embezzlement  under 
sections  86  and  95,  Criminal  Code,  act  of  March 
4, 1909  (35  Stat.,  1105, 1106);  taking  receipts  for 
payments  by  check,  duplicate  receipts  for  cash 
payments,  or  receipts  in  advance  of  actual  pay- 
ments, is  prohibited  by  Navy  Regulations,  1913, 
article  R-4303. 

Miscellaneous. — Disbursing  officers  are  re- 
quired to  furnish  heads  of  departments  with  cer- 
tain data  for  annual  reports  to  Congress  (sec.  193, 
R.  S.);  and  are  required  to  make  annual  report 
to  the  Secretary  of  the  Treasury  of  checks  out- 
standing for  three  years  or  more  (sec.  310,  R.  S.). 

Disbursing  officers  are  not  allowed  to  pay  ex- 
pense connected  with  any  commission  or  in- 
cjuiry,  except  courts-martial  or  courts  of  in- 
quiry in  the  military  or  naval  service,  unless 
special  appropriation  therefor  is  made  by  law 
(sec.  3681,  R.  S.);  nor  to  pay  compensation  or 
expenses  of  any  commission,  council,  board,  or 
similar  body,  unless  the  creation  of  the  same 
shall  be  authorized  by  law.  (Act  Mar.  4, 1909. 
sec.  9,  35  Stat.,  1027.) 

No  money  can  be  paid  to  any  person  as  com- 
pensation who  is  in  arrears  to  the  United  States. 
(Sec.  1766,  R.  S.  See  note  to  sec.  236,  R.  S., 
under  "VI.  Set-Off.") 


Sec.  1377.  [Supply  Corps;  no  promotion  or  appointment  in  certain  grades 
until  reduced.     Obsolete.] 


It  became  obsolete  as  soon  as  the  number 
of  passed  assistant  paymasters  was  reduced 
below  30.  See  also  later  laws,  noted  above 
under  section  1376,  increasing  the  number  of 
passed  assistant  and  assistant  paymasters. 


This  section  provided  as  follows: 

"Sec.  1377.  Until  the  number  of  passed 
assistant  paymasters  shall  have  been  reduced 
below  tlilrty,  there  shall  be  no  promotion  to 
that  grade,  nor  any  appointment  to  the  grade 
of  assistant  paymaster." — (15  July,  1870,  c.  295, 
s.  11,  V.  16,  p.  334.) 

Sec.  1378.  [Supply  Corps ;  appointments  in,  how  made.]    All  appointments  in 
the  Pay  Corps  shall  be  made  by  the  President,  by  and  with  the  advice  and 

469 


Sec.  1379. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


consent  of  the  Senate.— (30  Mar.,  1812,  c.  47,  s.  6,  v.  2,  p.  699.  22  June,  1860, 
c.  181,  s.  3,  V.  12,  p.  83.  17  July,  1861,  c.  4,  s.  1,  v.  12,  p.  258.  3  May,  1866, 
c.  72,  s.  1,  r.  14,  p.  43.) 


Amendment  to  this  section  was  made  by  act 
of  July   11,    1019   (41   Stat.,    147),   which 
changed  the  designation  of  the  Pay  Corps 
to  "Supply  Corps." 
As  to  appointment  of  officers  in  general,  see 
note  to  Constitution,  Article  II,  section  2, 
clause  2. 
Acting  pay  officers  may  be  appointed  at  sea  by 
senior  officer  present,  in  cases  authorized 
by  section  1381,  Revised  Statutes;  see  also 
note  to  section  1410,  Revised  Statutes. 
Appointments  as  acting  pay  clerks  are  made 
by  the  Secretary  of  the  Navy;   appoint- 
ments as  pay  clerks  are  matle  by  the  Presi- 
dent; and  appointments  as  cliief  pay  clerks 
are  made  by  the  President,  by  and  with 
the    advice    and   consent  of  the  Senate. 
(Act  Mar.  3,  1915,  38  Stat.,  942.) 
Appointments  in  the  Naval  Reserve  Force,  to 
commissioned  grades,  shall  be  made  by  the 
President  alone,  and  to  warrant  grades  shall 
be  made  by  the  Secretary  of  the  Navy. 
(Act  Aug.  29,  1916,  39  Stat.,  587.) 
Appointments  of  temporary  commissioned  offi- 
cers during  the  war  ■ndth  Germany  were  to  be 


made  by  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate.     (Act 
May  22,  1917,  sec.  12,  40  Stat.,  87.) 
Promotion  of  officers;  for  provisions  relating  to, 

see  section  1380,  Revised  Statutes. 
Rank  of  officers  of  the   Navy  shall  not  be 
changed  "except  in  accordance  with  the 
provisions  of  existing  law,  and  by  and  with 
the  advice  and  consent  of  the  Senate." 
(Sec.  1506,  R.  S.  as  amended  byact  June  17, 
1878,  20  Stat.  143.) 
Recess  appointments  when  Senate  not  in  ses- 
sion.    (See  note  to  Constitution,  Art.  II, 
sec.  2,  clause  3;  see  also  note  to  sec.  1381, 
R.  S.) 
Supply  Corps  limited  to  commissioned 
oflicers. — "It  is  ob\-ious  from  the  language  of 
section  1378  that  the  Pay  Corps  is  limited  to  offi- 
cers commissioned  by  the  President,  and  that 
clerks  and  others  who  are  not  so  commissioned 
do  not  belong  to  the  Pay  Corps."     (U.  S.  v. 
Mouat,  124  U.  S.,  303.) 

See  note  to  section  1369,  Revised  Stat- 
utes, concerning  appointments  in  the  Navy. 


Sec.  1379.  [Supply  Corps ;  qualifications  for  assistant  paymasters.]  No  per- 
son shaU  be  appointed  assistant  paymaster  who  is,  at  the  time  of  such  appoint- 
ment, less  than  twenty-one  or  more  than  twenty-six  years  of  age;  nor  until  his 
physical,  mental,  and  moral  qualifications  have  been  examined  and  approved  by 
a  board  of  paymasters  appointed  by  the  Secretary  of  the  Navy,  and  according 
to  such  regulations  as  he  may  prescribe. — (17  July,  1861,  c.  4,  s.  2,  v.  12,  p.  258.) 


Age  for  appointment  as  assistant  paymaster 
from  among  chief  pay  clerks  and  pay  clerks, 
was  fixed  by  act  of  March  3,  1915  (38  Stat., 
943),  at  "between  the  ages  of  twenty-one 
and  thirty-five  years  at  the  time  of  appoint- 
ment. " 

Boards  may  be  convened  by  officers  on  foreign 
stations.  (Act  March  4,  1917,  39  Stat., 
1171.) 

Midshipmen  on  graduation  may  be  appointed 
assistant  paymasters  in  the  Navj',  by  au- 
thority of  act  of  July  9,  1913  (38  Stat.,  103); 
see  also  note  to  section  1521,  Revised 
Statutes. 

The  age  limit  fixed  by  this  section  was  waived 
by  act  of  July  3,  1894  (28  Stat.,  99),  for  the 
benefit  of  certain  graduates  of  the  Naval 
Academy  who  had  been  discharged  from 
the  service;  and  by  act  of  March  3,  1899  (30 
Stat.,  1038),  for  the  benefit  of  persons  who 
had  served  as  assistant  paymasters  in  the 
war  with  Spain.  The  age  limit  has  also 
been  waived  by  special  act  of  Congress  in 
individual  cases  (see,  for  example,  act  May 
9,  1914,  38  Stat.,  39).  Special  age  limits 
were  prescribed  for  officers  appointed  in 
the  Regular  Navy  by  transfer  from  the 
temporary  Navj'^  and  Naval  Reserve  Force, 
by  act  of  June  \  1920,  section  5  (41  Stat., 
835). 


A  candidate  who  has  passed  his  twenty- 
sixth  birthday  is  ineligible  and  can  not, 
therefore,  legally  be  appointed  to  the  Pay  Corps 
under  section  1379,  Revised  Statutes.  This  has 
been  the  prior  interpretation  of  the  law  by  the 
Na\'y  Department,  and  such  interpretation 
received  the  approval  of  Congress  in  the  enact- 
ment of  a  special  act  of  May  9,  1914  (38  Stat.,  39), 
wai\-ing  the  age  limit  in  the  case  of  a  candidate 
who  successfully  passed  the  Pay  Corps  examina- 
tion while  under  26  years  of  age,  but  who  at- 
tained that  age  the  day  after  the  board's  finding 
was  approved  and  before  his  nomination  could 
be  made  by  the  President,  owing  to  an  adjourn- 
ment of  the  Senate  for  the  Chi-istmas  holidays. 
Other  statutes  relating  to  the  ages  of  candidates 
for  appointment  to  the  Navy  have  beem.  simi- 
larly interpreted  by  the  Navy  Department  and 
the  Attorney  General,  and  there  have  been  judi- 
cial decisions  in  civil  cases  which  support  such 
interpretation.  (File  27223-12:1,  Jan.  27,  1915, 
citing  authorities.) 

For  other  decisions,  see  note  to  section  1370, 
Revised  Statutes,  as  to  age  of  candidates  for 
appointment  as  assistant  surgeons ;  see  also  sec- 
tion 1517,  ReAdsed  Statutes,  as  to  age  of  candi- 
dates for  appointment  as  midshipmen  at  the 
Naval  Academy;  and  act  of  March  3,  1899,  sec- 
tion 14  (30  Stat.,  1007),  as  to  age  of  candidates 
for  appointment  as  warrant  machinists  (now 
designated  as  "machinists"). 


470 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1380. 


As  to  wnat  constitutes  appointment,  see 
note  to  Constitution,  Aiticle  II,  section  2,  clause 
2;  and  see  note  to  section  1370,  Revised  Stat- 
utes, as  to  when  an  appointment  as  assistant 
siugeon  is  complete. 

Examination  by  "board  of  paymas- 
ters."— The  term  "paymasters"  in  this  section 
has  been  construed  to  mean  "officers  of  the 
Supply  Corps,"  and  not  as  restricting  the  mem- 
bership of  the  examining  board  to  officers  in  the 
grade  of  "paymaster."  (See  T^Jt.  1640,  Navy 
Regs. ,  1920 .  As  to  grades  of  officers  constituting 
the  Supply  Corps,  see  note  to  sec.  1376,  R.  S.) 

[This  section  is  pecuUar  in  requiring  the  phys- 
ical qualifications  of  candidates  for  the  Supply 
Corps  to  be  examined  and  approved  by  a  board 
not  composed  of  medical  officers.  In  practice, 
nevertheless,  candidates  for  this  corps  are  phys- 
ically examined  by  a  board  of  medical  officers, 
who  report  the  result  of  such  examination  to  the 
statutory  board,  and  the  latter  thus  have  the 
benefit  of  the  medical  officers'  opinion  to  guide 


them  in  making  their  report  upon  the  physical 
qualifications  of  the  candidates.  (See  Art. 
R-3306,  Navy  Regs. ,  1913.  See  also  in  this  con- 
nection act  Mar.  3, 1915,  38  Stat., 942,  providing 
that  candidates  for  appointment  as  acting  pay 
clerk,  pay  clerk,  and  cliief  pay  clerk  shall  be 
physically,  as  well  as  mentally,  morally,  and 
professionally  examined  by  a  board,  composed 
when  practicable  of  officers  of  the  Pay  [now 
Supply]  Corps.)  Report  of  medical  officers  is 
not,  however,  binding  upon  the  statutory 
board,  which  may  legally  find  physically  qual- 
ified for  appointment  a  candidate  who  has  been 
adversely  reported  upon  by  the  medical  officers. 
(See,  for  example,  records  of  examining  boards 
in  cases  of  Assistant  Paymasters  Charles  L. 
Austin,  Walter  Maudry,  and  Maury  W.  Boy- 
kin.)] 

Qualifications  for  temporary  appoint- 
ment.— See  note  to  section  1370,  Revised 
Statutes,  under  "Appointments  to  temporary 
service." 


Sec.  1380.  [Supply  Corps ;  promotions  in.]  Passed  assistant  paymasters  shall 
be  regularly  promoted  and  commissioned  from  assistant  paymasters,  and  pay- 
masters from  passed  assistant  paymasters;  subject  to  sucli  examinations  as 
may  be  prescribed  by  the  Secretary  of  the  Navy. — (17  July,  1861,  c.  4,  s.  5,  v. 
12,  p.  258.     3  May,  1866,  c.  72,  s.  1,  v.  14,  p.  43.) 


Examinations  were  discontinued  for  promotion 
of  staff  officersingradebyactof  May 22, 1917, 
section  20  (40  Stat.,  89),  which  act  and 
section  also  reenacted  a  provision  in  the  act 
of  March  4,  1917  (39  Stat.,  1182),  requiring 
examinations  of  staff  officers  for  advance- 
ment in  rank. 
It  was  provided  by  act  of  August  29,  1916  (39 
Stat.,  576),  that  "officers  of  the  lower  grades 
of  the  Medical  Corps,  Pay  [now  Supply] 
Corps,  Construction  Corps,  and  Corps  of  Civil 
Engineers  shall  be  advanced  in  rank  up  to 
and  including  the  rank  of  lieutenant  com- 
mander with  the  officers  of  the  line  with 
whom  or  next  after  whom  they  take  prece- 
dence under  existing  law."  (See  note  to 
sec.  1475,  R.  S.) 
By  act  of  July  1,  1918  (40  Stat.,  718),  it  was 
provided  that  advancement  to  the  ranks  of 
commander,  captain,  and  rear  admiral  in 
the  Staff  Corps  of  the  Navy  shall  be  made 
by  selection  in  the  manner  therein  pre- 
scribed. 

Assistant  paymasters  are  promoted  to 
passed  assistant  paymasters  after  three  years' 
service,  provided  vacancies  exist  in  the  upper 
grade. 

The  following  order  was  issued  by  the  Secre- 
tary of  the  Navy,  February  21,  1908:  "It  is 
directed  that  hereafter  assistant  paymasters 
shall  be  considered  as  due  for  promotion  to  be 
passed  assistant  paymasters  as  soon  as  they  have 
served  three  years  in  the  grade  of  assistant  pay- 
master: Provided,  That  the  number  of  passed 
assistant  paymasters  shall  not  exceed  fifty-six." 
(File  3022-5;  as  to  increase  by  law  in  total  of 
passed  assistant  pavmasters,  see  note  to  sec. 
1376,_R.  S.) 

This  order  was  modified  by  the  President, 
upon  recommendation  of  the  Secretary  of  the 


Navy,  August  23, 1912  (file  1660-139,  Bu.  Nav.), 
by  increasing  the  grade  of  passed  assistant  pay- 
master to  76,  pursuant  to  act  of  August  22,  1912, 
(noted  under  sec.  1376,  R.  S.),  and  providing 
that  "no  assistant  paymaster  shall  be  promoted 
to  passed  assistant  paymaster  until  he  shall  have 
served  three  years  in  the  grade  of  assistant 
paymaster." 

The  promotions  of  assistant  paymasters  in 
accordance  with  the  above  order  of  the  Secre- 
tary of  the  Navy  are  promotions  "in  coiu:se," 
within  the  meaning  of  the  act  of  June  27,  1874 
(18  Stat.,  191),  and  are  advancements  in  grade 
"pursuant  to  law,"  within  the  meaning  of  the 
act  of  March  4,  1913  (37  Stat.,  892).  (See  Wil- 
liams V.  U.  S.,  47  Ct.  Cls.,  316,  and  Crapo  v. 
U.  S.,  50  Ct.  Cls.,  337;  see  also  sec.  1561,  R.  S.) 

The  law  does  not  regulate  the  length  of  time 
which  an  officer  must  serve  in  the  grade  of 
assistant  paymaster  before  being  eligible,  if 
otherwise  qualified,  to  fill  a  vacancy  which  may 
exist  in  the  grade  of  passed  assistant  paymaster. 
The  department  has,  however,  adopted  the 
procedure,  which  is  now  well  established,  by 
which  such  advancements  are  regulated  by 
length  of  service,  but  it  may  modify  in  a  par- 
ticular case  the  procedure  thus  established. 
(File  11130-30:1,  May  4,  1916.) 

Subject  to  the  limitations  contained  in  laws 
prior  to  August  29, 1916,  as  to  the  number  of  offi- 
cers in  certain  lower  grades  of  the  Pay  Corps  (see 
note  to  sec.  1376,  R.  S.),  the  Secretary  of  the 
Navy  has  discretion  to  pro^dde  that  all  assistant 
paymasters  shall  be  promoted  to  passed  assistant 
paymasters  at  the  same  time  that  they  are  ad- 
vanced to  the  rank  of  lieutenant,  and  that  all 
passed  assistant  paymasters  shall  be  promoted 
to  paymaster  at  the  same  time  that  they  are 
advanced  to  the  rank  of  lieutenant  commander. 
(File  27223-37,  Mar.  20,  1918.) 


471 


Sec.   1381. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


Pay  on  promotion. — All  officers  of  the 
Navy  advanci'd  in  i^^rade  or  rank  pursuant  to  law 
shall  be  alldwod  the  i)ay  and  allowances  of  the 
higher  frrade  or  rank  from  the  dates  stated  in 
their  conmussions.  (Act  Mar.  4,  1913,  37  Stat., 
892;  see  note  to  sec.  1561,  R.  S.) 


Suspension  from  promotion  of  officers 
who  fail  to  (jualify  when  examined  is  required 
by  section  J  505,  lie  vised  Statutes,  as  amended 
by  act  of  March  11, 1912  (37  Stat.,  73),  and  May 
22,  1917,  section  20  (40  Stat.,  89). 


Sec.  1381.  [Supply  Corps ;  acting  appointments  on  ships  at  sea.]  When  the 
office  of  paymaster  or  assistant  paymaster  becomes  vacant,  by  death  or  other- 
wise, in  ships  at  sea,  or  on  foreign  stations,  or  on  the  Pacific  coast  of  the  United 
States,  the  senior  officer  present  may  make  an  acting  appointment  of  any  fit 
pei-son,  who  shall  perform  the  duties  thereof  until  another  paymaster  or  assistant 
pa3^master  shall  report  for  duty,  and  shall  be  entitled  to  receive  the  pay  of 
such  grade  while  so  acting. — (17  July,  18G1,  c.  4,  s.  4,  v.  12,  p.  258.) 

Acting  appointee  continues  to  hold  his 
regular  office. — "An  acting  appointment  of  a 
paymaster's  clerk  to  perform  the  duties  of  pay 
officer  on  board  a  naval  vessel  at  sea,  under  sec- 
tion 1381,  Revised  Statutes,  does  not  change 
his  official  status  as  a  paymaster's  clerk."  (21 
Comp.  Dec,  548.) 

Not  entitled  to  dual  compensation. — "A 
naval  officer  acting  as  paymaster  is  appointed 
to  discharge  the  duties  of  an  office  which  he 
does  not  hold ,  and  is  prohibited  from  receiving 
dual  compensation  by  the  Revised  Statutes, 
sections  1763,  1765."  (Webster  v.  U.  S.,  28 
Ct.  Cls.,  25.) 

It  is  true  that  Revised  Statutes,  sections  1381 
and  1564,  provide  that  any  person  performing 
the  duties  of  paymaster  by  appointment  of  the 
senior  officer,  shall  be  entitled  to  receive  the 
pay  of  such  grade  while  so  acting.  Those  sec- 
tions must  be  construed  with  reference  to  other 
provisions  of  the  statute,  and  while  they  may 
operate  literally  if  the  appointee  holds  no 
office  under  the  Government,  as  may  be  the 
case,  if  he  holds  an  office  he  can  not  escape 
from  the  prohibitions  of  the  Revised  Statutes, 
sections  1763,  1765.  It  does  not  appear  that 
Congress  intended  to  allow  an  officer  two  sala- 
ries when  temporarily  discharging  the  duties  of 
acting  paymaster  by  appointment  under  sec- 
tion 1381.     (Webster  v.  U.  S.,  28  Ct.Cls.,  25.) 

Entitled  to  larger  compensation  of  the 
two  positions. — ' '  It  is  the  liberal  custom  of 
the  Treasury  Department  to  allow  a  person 
holding  more  than  one  office  the  compensation 
of  that  which  is  the  larger."  (Webster  v. 
U.  S.,  28  Ct.  Cls.,  25. )_ 

"The  offices  of  engineer  and  paymaster  in 
the  Navy  are  incompatible,  and  he  who  holds 
them  is  not  entitled  to  the  compensation  of 
both,  but  is  entitled  to  the  larger  of  the  two." 
(Webster  v.  U.  S.,  28  Ct.  Cls.,  25.) 

Not  entitled  to  pay  officer's  longevity 
pay. — "Where  a  paymaster's  clerk  of  the  Navy 
is  appointed,  under  sections  1381  and  1564  of 
the  Revised  Statutes,  to  perfora  the  duties  of  a 
paymaster,  such  acting  paymaster  is  entitled 
to  receive  the  base  pay  of  the  paymaster  whose 
duties  he  is  appointed  to  perform,  but  not  his 
longevity  pay."  (18  Comp.  Dec,  491;  see 
also  21  Comp.  Dec,  548;  Ostrander  v.  U.  S., 
22  Ct.  Cls.,  218,222;  Webster  v.  U.  S.,  28  Ct. 
Cls.,  25.) 

Where  the  officer  whose  place  is  vacant  held 
the   grade    of    paymaster,   with   the   rank   of 


Acting  appointments  in  general;  see  note  to 

section  1410,  Revised  Statutes. 
Pay  of  officer  under  acting  appointment;  see 

section  1564,  Revised  Statutes. 
Restrictions  upon  employment  of  persons  to 
receive  and.  pay  money  for  use  of  the  naval 
service  on  foreign  stations,  are  contained 
in  section  1550,  Revised  Statutes. 
Status  of  appointee  w^hile  acting. — "An 
officer  duly  appointed  to  act  in  any  grade  shall, 
while   serving   under   such   appointment,    be 
entitled  to  the  same  command,  precedence, 
and  honors  as  if  he  held  a  commission  in  that 
grade  of  the  same  date  as  his  appointment." 
(Art.  R-1048,  Navy  Regs.,  1913.) 

In  determining  the  meaning  of  the  Revised 
Statutes,  and  of  subsequent  acts  of  Congress, 
"the  reference  to  any  officer  shall  include  any 
person  authorized  by  law  to  perform  the  duties 
of  such  office,  unless  the  context  shows  that 
such  words  were  intended  to  be  used  in  a  more 
limited  sense."     (Sec.  1,  R.  S.) 

The  words  "paymaster  or  assistant  pay- 
master" have  been  construed  as  including 
"any  officer  of  the  Pay  Corps  on  duty";  (Art. 
.R-3006,  Navy  Regs.,  1913;  see  also  22  Comp. 
Dec.,  171);  and  as  including  assistant  pay- 
masters of  the  Marine  Corps,  by  virtue  of  sec- 
tion 1621,  Revised  Statutes  (22  Comp.  Dec, 
171). 

Acting  appointment  not  an  office. — "An 
acting  paymaster  appointed  by  the  senior  offi- 
cer present  is  not  an  officer.  He  is  not  ap- 
pointed as  required  by  the  Constitution,  takes 
no  oath  of  office,  and  gives  no  bond  as  paymas- 
ter." (Webster  v.  U.  S.,  28  Ct.  Cls.,  25;  see 
note  to  Constitution,  Art.  II,  sec.  2,  clause  2.) 
"From  the  above  it  will  be  seen  that,  strictly 
speaking,  there  is  no  such  office  in  the  Navy 
as  acting  assistant  paymaster  to  which  appel- 
lant could  have  been  appointed.  As  a  matter 
of  law  he  was  given  an  acting  appointment  to 
perform  the  duties  of  the  assistant  paymaster 
as  pay  officer  on  board  a  vessel  at  sea.  *  *  * 
There  is  no  evidence  in  the  papers  in  the  case 
that  he  took  any  oath  as  acting  assistant  pay- 
master, and  even  though  he  did  it  would  not 
make  him  an  incumbent  of  the  office  of  acting 
assistant  paymaster,  because  there  is  in  law  no 
such  office.  The  distinction  is  between  one 
acting  as  a.ssistant  paymaster,  and  holding 
the  office  of  acting  assistant  j)aymaster.  He 
continued  to  hold  office  under  his  appointment 
as  a  paymaster's  clerk;"     (21  Comp.  Dec,  548.) 


472 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1381. 


lieutenant  commander,  there  being  two  ranks 
in  the  grade  of  paymaster ^ — namely,  lieutenant 
commander  and  lieutenant;  held,  that  a  pay- 
master's clerk  appointed  to  perform  the  pay- 
master's duties  is  entitled  to  pay  based  upon 
the  rank  of  lieutenant  commander.  (18  Comp. 
Dec,  491.) 

"The  claimant  was  paid  the  salary  of  a 
paymaster  in  the  first  five  years  of  service. 
He  claims  the  pay  of  paymaster  in  the 
fourth  five  years,  in  whose  place  he  was 
acting.  Increase  of  pay  for  length  of  service 
in  the  Na\'y'  is  founded  on  the  theory  that  an 
officer  acquires  experience  and  efficiency  by 
the  long  performance  of  the  same  duties.  It 
is  not  to  be  presumed  that  Congress  intended 
to  pay  from  the  beginning  the  increased  com- 
pensation allowed  for  length  of  service  to  one 
who  is  appointed  temporarily  to  dischai'ge  the 
duties  of  paymaster."  (Webster  v.  U.  S.,  28 
Ct.  Cls.,  25;  "18  Comp.  Dec,  491.) 

Termination  of  acting  appointment. — 
Under  section  1381  the  continuance  of  the 
acting  appointment  "does  not  depend  upon  a 
discharge  or  revocation.  It  terminates  when 
another  paymaster  reports  for  duty,  and  the 
pay  continues  at  farthest  only  to  the  time  when 
the  acting  officer's  accounts  are  made  up  and 
filed."  (Ostrander  v.  U.  S.,  22  Ct.  Cls., 
218.) 

By  virtue  of  an  appointment  imder  this  law 
the  claimant  was  authorized  to  perform  the 
duties  of  the  invaUd  officer  "until  another  pay- 
master or  assistant  paymaster  should  report  for 
duty,"  and  no  longer.  No  phraseology  in  the 
appointment  could  confer  greater  rights  than 
are  herein  authorized.  Words  which  confer 
more,  if  any  such  are  employed,  are  simply 
void.     (Ostrander  v.  U.  S.,  22  Ct.  Cls.,  218.) 

A  paymaster's  clerk  in  the  Navy,  authorized 
under  section  1381,  Revised  Statutes,  to  perform 
the  duties  of  assistant  paymaster,  was  delin- 
quent in  settling  his  accounts  in  the  latter 
capacity.  During  the  period  of  delinquency 
he  was  a  witness  before  a  naval  general  court- 
martial.  Held,  That  from  the  date  his  accounts 
should  have  been  settled  until  he  was  dis- 
charged as  a  witness  before  the  general  court- 
martial  his  status  was  that  of  paymaster's  clerk, 
to  which  status  he  reverted  on  the  date  that  hia 
accounts  should  have  been  settled.  Held,  fur- 
ther. That  a  waiver  of  delinquency  which  was 
granted  in  forwarding  his  accounts  to  the 
Treasury  Department  did  not  operate  to  place 
htm  in  the  duty  status  of  settling  accounts, 
and  consequently  did  not  entitle  htm  during 
that  period  to  the  pay  of  the  officer  whose  duties 
he  was  appointed  to  perform.  (21  Comp.  Dec, 
548.) 

Temporary  absence  of  ofl&cer  not  a  va- 
cancy.— The  office  of  pa^onaster  or  assistant 
paymaster  must  become  vacant  before  the  con- 
ditions exist  in  which  a  person  may  be  ap- 
pointed to  act  "until  another  paymaster  or 
assistant  paymaster  shall  report  for  duty." 
The  temporary  absence  of  a  paymaster  from  his 
ship  or  station  does  not  create  a  vacancy  in  his 
office  as  contemplated  by  the  statute.  (10 
Comp.  Dec,  135;  compare  sec.  179,  R.  S.,and 
cases  noted  thereunder.) 

Where  an  officer  was  acting  in  a  double 
capacity,  as  pay  ofiicer  of  a  vessel  and  general 


storekeeper  at  the  naval  station,  and  while 
absent  performing  his  duties  as  pay  officer  of 
the  ship  was  directed  to  turn  over  to  a  pay 
clerk  such  of  the  duties  of  his  station  as  coulS 
be  legally  executed  by  said  clerk  during  his 
absence.  Held,  That  this  did  not  operate  to 
detach  the  officer  from  the  office  of  general 
storekeeper,  and  did  not  create  a  vacancy 
therein,  so  as  to  authorize  the  appointment  of 
an  acting  assistant  paymaster  during  such  tem- 
porary absence.     (10  Comp.  Dec,  135.) 

Inherent  power  of  President  to  provide 
for  acting  appointments. — Section  1381  ap- 
plies in  terms  to  a  vacancy  in  the  office  of ' '  pay- 
master or  assistant  paymaster."  However,  by 
Navy  Regulations  1920  (Art.  1228),  provision 
is  made  for  actmg  appointments  by  the  senior 
officer  present  in  case  of  the  death,  etc.,  of 
"any  officer  of  the  Supply  Corps  on  duty." 
(See  also  Art.  1229.) 

Statutory  authority  was  not  necessaiy  for  the 
President  to  make  a  valid  regulation  providing 
that  "on  foreign  stations  a  commander  may, 
when  absolutely  necessary,  give  acting  appoint- 
ments to  fill  vacancies  which  may  be  occa- 
sioned by  death  or  other  circumstances;  but  in 
such  cases  he  shall  take  the  earliest  opportunity 
to  make  known  the  circumstances  to  the  Secre- 
tary of  the  Na\'3',  and  state  his  reasons  for 
making  such  acting  appointments."  This 
regulation  was  published  in  the  Navy  Regula- 
tions of  1818,  commonly  called  the  "Blue 
Book,"  under  the  head  of  "Appointments." 
After  its  promulgation  it  was  considered  "as 
entitled  to  respect  and  obedience.  Many 
acting  appointments,  including  acting  pursers, 
have  been  made  under  it,  which  have  received 
the  recognition  of  the  President,  the  Na\'y 
Department,  and  the  accounting  officers  of  the 
Treasury  and  the  courts  of  law.  *  *  *  To 
fiU  up  a  vacancy  by  an  appointment  of  one  to 
act  ad  interim  and  for  a  particular  exigency  in  a 
distant  service,  is  in  its  nature  an  executive, 
ministerial,  and  administrative  power. "  (6  Op. 
Atty,  Gen.,  357.) 

A  statute  which  provides  that  an  officer  shall 
not  act  unless  first  approved  by  the  Senate, 
must  have  a  construction  consistent  with  the 
exception  to  the  power  of  the  Senate,  contained 
in  the  Constitution,  whereby  the  President  is 
authorized  to  fill  up  all  vacancies  that  may 
happen  during  the  recess  of  the  Senate,  by 
granting  commissions  which  shall  expire  at  the 
end  of  their  next  session,  so  that  the  statute 
shall  not  be  in  conflict  with  the  Constitution. 
That  is  to  say,  there  is  an  exception  not  ex- 
pressed in  the  statute  but  necessarily  implied. 
The  Constitution  itself,  in  relation  to  the  power 
of  the  President  to  fill  up  vacancies  which  may 
happen  during  the  recess  of  the  Senate,  must 
have  a  reasonable  construction,  adapted  to  the 
end,  utility,  and  practical  effect  intended  in 
confen'ing  that  power.  In  the  cases  of  officers 
of  the  Navy,  on  far  distant  ser\dce,  in  the  dif- 
ferent seas  and  oceans,  vacancies  will  happen 
which  can  not  abide  to  be  filled  until  the  Presi- 
dent may  be  informed  and  exercise  his  appouit- 
iug  power.  To  meet  such  exigencies,  the  Presi- 
dent may  provide  by  regulation  for  the  tem- 
porary filling  of  such  vacancies  by  the  naval 
commander.  (6  Op.  Atty.  Gen.,  357;  in  this 
connection,  see  sec.  1378,  R.  S.) 


473 


Sec.   1383. 


PI.  2.  REVISED  STATUTES. 


The  Navy. 


Ill  tlie  absence  of  los;i3lati\'e  authority,  the 
comraaiuk'r  of  a  squadron  of  the  Navy  on  a 
foroipn  station  has  power  to  appoint  a  pro- 
visional or  acting  dl'^hursing  ofHccr  in  the  ab- 
sence of  any  such  ollicer  duly  appointed  by 
the  President.  Although  such  appointment  be 
subsequently  disapproved  by  the  Secretary  of 


the  Navy,  still  the  acts  which  the  acting  officer 
may  have  performed  while  so  acting  are  not 
thereby  invalidated.  (6  Op.  Atty.  Gen., 
357.) 

F'or  other  cases,  see  notes  to  sections  177 
and  181,  Revised  Statutes,  and  to  Constitu- 
tion, Article  II,  section  2,  clause  3. 


Sec.  1382.  [Supply  Corps  ;  paymaster  of  the  fleet.]  The  President  may  desig- 
nate among  the  paymasters  in  the  service,  and  appoint  to  every  fleet  or  squadron 
a  paymaster,  who  shall  be  denominated  "paymaster  of  the  fleet." — (24  May, 
1828,  c.  121,  s.  2,  V.  4,  p.  313.     21  April,  1864,  c.  63,  s.  7,  v.  13,  p.  54.) 


Pay  of  fleet  paymasters  was  fixed  at  $4,400  per 
annum  by  section  1556,  Revised  Statutes. 
(See  note  to  that  section.) 
See  section  1373,  Re\dsed  Statutes,  as  to  ap- 
pointment of  fleet  surgeons;  and  section 
1393,  Re\rised  Statutes,  as  to  appointment 
of  fleet  engineers. 
The  -word  "paymasters"  as  used  in  this 
section  has  been  construed  to  mean  any  officer 
of  the  Supply  Corps,  and  not  as  restricting 
details  for  this  duty  to  officers  in  the  grade  of 
"paymaster."      (See  Art.   R-1826  (2),  Navy 
Regs.,  1913,  as  amended.) 

Must  be  designated  hy  the  President. — 
No  designation  other  than  that  made  by  the 
President  entitles  a  naval  paymaster  to  the 
place  and  perquisites  of  paymaster  of  the  fleet. 
(18 Op.  Atty.  Gen.,  156;  followed  5  Comp.  Dec, 
466;  compare  Art.  R-1826  (2),  Navy  Regs., 1913.) 
The  powers  conferred  by  sections  1381  and 
1382,  respectively,  are  quite  distinct.  (18  Op. 
Atty.  Gen,,  156.) 

Secretary  of  the  Navy  acts  for  the 
President. — "The  action  of  the  Secretary  of 
the  XaA^  in  approving  the  designation  of  the 
fleet  officers  named  by  general  squadron  order 
may  be  regarded  as  the  action  of  the  President, 
and  as  a  sufficient  compliance  with  the  law 
which  authorizes  him  to  make  such  appoint- 
ment. The  action  of  the  head  of  a  department 
witliin  the  scope  of  his  authority  is  to  be  taken 
as  the  action  of  the  President  himself."  (5 
Comp.  Dec,  888,  citing  Wolsey  v.  Chapman,  101 
U.  S,,  755,  769;  Wilcox  v.  Jackson,  13  Pet.,  498, 
513;  U.  S.  V.  Eliason,  16  Pet.,  291;  4  Comp.  Dec, 
463;  see  also  note  to  sec.  1393,  R.  S.) 

For  other  cases,  see  note  to  section  417,  Re- 
vised Statutes, 

Approval  by  Secretary  of  the  Navy  not 
retroactive. — "The  designation  by  the  com- 
mander in  chief  of  a  naval  squadron  of  a  pay- 
master of  the  Navy  as  paymaster  of  the  fleet 
does  not  entitle  him  to  the  increased  pay  of 
that  position,  and  a  subsequent  approval  of 


such  designation  by  the  Secretary  of  the  Navy 
can  not  have  a  retroactive  effect."     (5  Comp 
Dec,  466,) 

Where  designation  was  made  by  a  com- 
mander in  chief,  and  subsequently  (more  than  a 
year  later),  was  approved  by  the  President,  he 
did  not  become  entitled  from  the  date  of  his 
designation  to  pay  as  paymaster  of  the  fleet. 
There  is  not  any  relation  by  the  subsequent 
approval  to  the  time  of  the  designation  by  the 
Admiral,  The  latter  act  has  no  significance  in 
point  of  law,  no  more  than  as  any  other  recom- 
mendation made  to  an  appointing  power.  (18 
Op.  Atty.  Gen,,  156 :  followed  5  Comp.  Dec,  466,) 

Termination  of  appointment. — In  the 
case  of  Denig  v.  U.  S.  (37  Ct.  Cls,,  383)  it  was 
shown  that  the  officer  (fleet  engineer)  had  no 
duties  to  perform  as  fleet  engineer  from  the 
date  the  commander  in  chief  was  detached 
until  his  designation  by  the  new  commander 
in  chief  was  approved  by  the  Secretary  of  the 
Navy,  his  vessel  in  the  meantime  being  sepa- 
rated from  the  rest  of  the  fleet  and  no  duty  re- 
quired of  claimant  as  fleet  engineer.  It  was 
held  that  the  officer  was  not  entitled  to  pay  as 
fleet  engineer  during  the  interim,  "even  if  the 
detachment  of  the  commander  in  chief  was  not 
of  itself  a  revocation  of  his  appointment  as  fleet 
engineer."     (10  Comp.  Dec,  817.) 

Pay  when  not  performing  duty.— "The 
effect  of  this  decision  [Denig  v.  U,  S,,  noted  in 
preceding  paragi-aph]  is  that,  although  Denig's 
appointment  as  fleet  engineer  continued  un- 
revoked during  said  fifty-four  days,  he  was  not 
entitled  to  receive  the  pay  of  fleet  engineer 
during  that  period,  because  the  flagship  upon 
wliich  he  was  serving  was  separated  from  the 
rest  of  the  fleet  and  no  duties  were  required  of 
him  as  fleet  engineer."     (10  Comp,  Dec,  817,) 

"An  oflicer  of  the  Navy  serving  as  paymaster 
of  a  fleet  is  not  entitled  while  on  leave  of  ab- 
sence to  the  pay  of  a  fleet  paymaster,  but  only 
to  the  shore  pay  of  Ms  rank."  (10  Comp.  Dec, 
817,) 


Sec.  1383.  [Supply  Corps;  bonds  of  officers.]  Every  paymaster,  passed 
assistant  paymaster,  and  assistant  paymaster  shall,  before  entering  on  the 
duties  of  his  office,  give  bond,  with  two  or  more  sufficient  sureties,  to  be 
approved  by  the  Secretary  of  the  Navy,  for  the  faithful  performance  thereof. 
Paymasters  shall  give  bonds  in  the  sum  of  twenty-five  thousand  dollars,  passed 
assistant  paymasters  in  the  sum  of  fifteen  thousand  dollars,  and  assistant 
paymasters  in  the  sum  of  ten  thousand  dollars. — (30  Mar.,  1812,  c.  47,  s.  6,  v.  2, 
p.  G99;  1  Mar.,  1817,  c.  24,  s.  1,  v.  3,  p.  350;  22  June,  1860,  c.  181,  s.  3,  v.  12, 


474 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.   1383. 


p.  83;  17  July,  1861,  c.  4,  s.  5,  v.  12,  p.  258;  14  July,  1862,  c.  175,  s.  1,  v.  12, 
p  575;  3  May,  1866,  c.  72,  s.  2,  v.  14,  p.  43.— U.  S.  v.  Tingey,  5  Pet.,  115.) 

Deficiency,  when  discovered,  shall  be  reported 

by  accounting  officers  to  head  of  depart- 
ment,  who  shall  immediately  notify  all 

obligors  thereof;  but  failure  to  give  such 

notice   shall   not   discharge   the   sureties. 

(Act  Aug.  8,  1888,  sec.  1,  25  Stat.,  387.) 
Disbursing  clerks  in  executive  departments: 

See  section  176,  Re^'ised  Statutes,  and  note 

thereto,  as  to  bonds  required  to  be  fur- 
nished. 
Disbursing  officers  against  whom  a  warrant  of 

distress  has  been  issued  for  failure  to  ac- 
count for  public  moneys,  must  furnish  bond 

in  a  prescribed  sum  before  an  injunction 

shall  issue  upon  their  complaint  to  stay  pro- 
ceedings on  such  warrant.    (Sec.  3636,  R.  S.) 
Examination  of  bonds  shall  be  made  at  least 

once  in  two  years  by  officers  having  power 

to  take  and  approve  such  bonds,  and  by 

officers  having  power  to  fix  the  amount 

thereof,  for  purpose  of  ascertaining  suffi- 
ciency of  sureties  and  of  approving  or  fix- 
ing the  amount.    (Act  Mar.  2,  1895,  sec.  5, 

28  Stat.,  807.) 
Navy*  imail  clerks  and   assistant   Navy   mail 

clerks  are  required  to  give  bond  in  such 

sum  as  the  Postmaster  General  may  deem 

sufficient.     (Act May  27, 1908,  35  Stat.,  417, 

as  amended  by  act  Aug.  24,  1912,  sees.  3 

and  11,  37  Stat.,  554,  560.)    All  bonds  taken 

by  the  Post  Office  Department  shall  be 

made  to  the  United  States  of  America. 

(Sec.  403,  R.  S.) 
Pay  of  naval  officer  required  to  give   bond 

commences,  upon  original  entry  into  the 

service,  upon  date  of  approval  of  his  bond. 

(See  sec.  1560,  R.  S.) 
Premium   on   bonds  furnished   by   surety   or 

bonding  company  for  any  officer  or  em- 
ployee of  the  United  States  shall  not  be 

more  than  35  per  centum  in  excess  of  the 

rate  of  premium  charged  for  a  like  bond 

during  the  calendar  year  1908.     (Act  Aug. 

5,  1909,  36  Stat.,  125.)    The  United  States 

shall  not  pay  any  part  of  the  premium  or 

other  cost  of  furnishing  a  bond  required  by 

law  or  otherwise  of  any  officer  or  employee 

of  the  United  States.     (Same  act.) 
President  is  authorized,  if  in  his  opinion  the  in- 

terestof  the  United  States  require  the  same, 

to  regulate  and  increase  the  sums  for  which 

bonds  are  or  may  be  required  by  law  of 

officers  employed  in  the  disbursement  of 

the  public  moneys  under  the  direction  of 

the  Navy  Department.     (Sec.  3639,  R.  S.) 
Renewal  of  bonds  necessary  at  least  once  every 

four  years;   but  where   not  so   renewed, 

liability  of  principal  or  sureties  shall  not 

be  affected.     (Act  Mar.  2,  1895,  sec.  5.  28 

Stat.,  807;  see  also  sec.  1384,  R.  S.) 
Special  disbursing  agents,  other  than  officers  of 

Army  or  Navj^  are  required  to  give  bond. 

(Sec.  3614,  R.  S.) 
Storekeepers  on  foreign  stations:  Civilian  store- 
keepers appointed  by  Secretary  of  the  Navy 

on  foreign  stations  are  required  to  give 

bond  in  amount  fixed  by  Secretary  of  the 

Nav^r.    (Sec.  1415,  R.  S.) 


Storekeepers  on  foreign  stations:  Officers  of  the 
Navy  acting  in  such  capacity  are  required 
to  give  bond  in  amount  fixed  by  Secretary 
of  the  Navy.     (Sec.  1439,  R.  S.) 

Suit  on  bonds:  Sureties  discharged  if  suit  not 
instituted  witliin  five  years  after  discovery 
of  indebtedness.  (Act  Aug.  8,  1888,  sec. 
2,  25  Stat.,  387.) 

Suit  on  bonds:  Judgment  at  return  term  shall 
be  granted  by  court  when  suit  is  brought 
by  United  States  upon  a  bond,  unless  the 
defendant  pleads  "non  est  factum,"  or 
makes  a  motion  to  the  court,  verifying  such 
plea  or  motion  by  his  oath,  and  the  court 
thereupon  requires  the  production  of  the 
original  bond,  in  which  case  a  continuance 
may  be  granted  until  the  next  succeeding 
term.     (Sec.  957,  R.  S.) 

Suit  on  bonds:  Judgment  that  plaintiff  recover 
so  much  as  is  due  according  to  equity  shall 
be  rendered  in  suits  to  recover  forfeitures 
annexed  to  bonds,  where  the  forfeiture, 
breach,  or  nonperformance  appears  by  de- 
fault or  confession  of  the  defendant,  or 
upon  demurrer;  and  when  the  sum  for 
wnich  judgment  should  be  rendered  is 
uncertain,  it  shall,  if  either  of  the  parties 
requests  it,  be  assessed  by  a  jury.  (Sec. 
961,  R.  S.) 

Suit  on  bonds:  Copies  of  bonds  duly  certified 
and  authenticated  are  admissible  in  evi- 
dence in  suits  against  delinquent  officers, 
unless  defendant  pleads  "non  est  factum" 
or  makes  his  motion  to  the  court,  verifying 
such  plea  or  motion  by  his  oath,  in  which 
case  the  court  may,  if  it  appears  to  be  neces- 
sary for  the  attainment  of  justice,  require 
the  production  of  the  original  bond.  (Sec. 
886,  R.  S.) 

Surety  or  guaranty  company  which  complies 
with  necessary  requirements  may  be  ac- 
cepted as  sole  surety  on  a  bond.  (Act  Aug. 
13,  1894,  28  Stat.,  279,  as  amended  by  act 
Mar.  23,  1910,  36  Stat.,  241.) 


I.  Who  Are  Requieed  to  Give  Bonds. 
II.  Necessity  of  Furnishing   Bond  Be- 
fore Entering  Upon  Duty. 

III.  Date     from     Which     Bond     Takes 

Effect. 

IV.  Form  of  Bond. 

V.  Sufficiency  of  Sureties. 
VI.  Approval  of  Bond. 
VII.  Condition  of  Bond. 
VIII.  Conflict  of  Laws. 
IX.  Liability  of  Sureties. 
X.  Miscellaneous. 


I.  Who  Are  Required  to  Give  Bonds. 

See  statutes  noted  above,  under  this 
section. 

Pay  directors  and  pay  inspectors, 
although  not  specified  in  the  above  section  of 
the  Revised  Statutes,  are  required  to  give  bond 


54641 ' 


-31 


475 


Sec.   1383. 


Pt. 


RE  VISED  STAT  UTES. 


The  Navy. 


byNavy  RogulatioTis,  1913  (art.  R-3002),  which 

jirovido  that  "before  entering  npon  the  dnties 
of  his  oflice  every  ollieer  of  the  Pay  Corps  shall 
give  bond  for  the  faithful  performance  thereof, 
with  snfllcient  surety,  to  be  approved  by  the 
Secretary  of  the  Navy,  and  under  such  regula- 
tions or  instructions  as  may  ho  issued  from  time 
to  time  by  proper  authority'";  and  by  Naval 
Instnictions,  1913  (art.  1-3901),  which  provide 
that  "officers  of  the  Pay  Corps  of  the  Navy, 
*  *  *  and  such  other  officers  or  officials  as 
the  Secretary  of  the  Navy  may  direct,  are  re- 
quired to  furnish  bonds  for  the  faithful  per- 
formance of  their  duties." 

"\\'hile  there  is  no  express  statutory  author- 
ity requiring  pay  directors  and  pay  inspectors 
to  give  bond,  the  department,  in  view  of  the 
fact  that  such  officers  have  or  may  have  dis- 
bursing accounts,  requires  that  they  give  bond 
in  the  sum  of  twenty-five  thousand  dollars." 
(File  26284-94,  May  8,  1909.) 

The  Chief  of  the  Bureau  of  Supphes  and 
Accounts  has  no  disliursing  account  and  is  not 
held  personally  responsible  for  the  disburse- 
ment of  public  moneys  under  the  bureau. 
Therefore  in  the  absence  of  an  express  statutory 
requirement  it  is  not  considered  necessary  that 
he  furnish  a  bond.  *  *  *  Should  there  be 
such  a  change  in  the  business  methods  of  the 
Bureau  of  Supplies  and  Accounts  as  would 
place  public  funds  in  the  hands  of  the  Pay- 
master General,  in  any  capacity,  it  is  consid- 
ered in  such  case  that  the  public  interests 
would  indicate  that  a  bond  be  required." 
(File  26284-94,  May  8, 1909,  Memo,  of  Solicitor, 
Nax-y  Dept.) 

"Chief  pay  clerks,  pay  clerks,  and  acting 
pay  clerks  will  be  required  to  furnish  bond  for 
the  faithful  performance  of  their  duties  in  the 
sum  of  five  thousand  dollars;  and  will  be  respon- 
sible imder  said  bond  for  all  money  and  stores 
in  their  custody."  (Art.  R-3318A,  par.  7, 
Navy  Regs.,  1913,  file  3980-1283,  Oct.  18,  1916, 
201  S.  and  A.  Memo.  4423,  Dec.  1 ,  1917;  C.  N.  R. 
11,  Dec.  1,  1918.  See  24  Comp.  Dec,  650; 
25  Comp.  Dec,  550;  and  see  decisions  of  the 
Supreme  Court,  noted  below,  as  to  the  power 
of  the  head  of  a  department  to  demand  a  bond 
in  cases  not  required  liy  statute;  see  also  above, 
as  to  pay  directors  and  pay  inspectors.) 

Enlisted  men  on  duty  iuA'olving  the  han- 
dling of  Government  stores  and  money  may  be 
required  by  the  Secretary  of  the  Navy  to  give 
bond.  (Fi'le  3980-1283,  Oct.  18,  1916,  May 
2,  1917,  and  July  31,  1917.) 

Pay  OflB.cers,  Naval  Reserve  Force, 
whether  of  the  Fleet  Naval  Reserve  or  Naval 
Coast  Defense  Reserve,  must  furnish  bond  in 
conformity  with  section  1383,  Revised  Statutes, 
before  their  pav  can  commence.  (Comp.  Dec, 
Apr.  30,  1917,  file  26254-2224:5;  see  also  Comp. 
Dec,  Apr.  14,  1917,  file  26254-2222:1;  Comp. 
Dec,  Apr.  7,  1917,  file  26254-2224:2.) 

Pay  Officers,  Naval  Militia,  assigned  to 
duty  under  the  provisions  of  section  11  of  the 
Naval  Militia  Act  of  February  16,  1914  (38 
Stat.,  286,  repealed  by  act  July  1,  1918,  40 
Stat.,  708),  not  called  into  the  service  of  the 
United  States  and  not  required  to  disburse 
Federal  funds,  are  not  required  to  give  bond 
as  officers  of  the  Navy.  (Comp.  Dec,  Julv  6, 
1917,  file  26254-2224:7.) 


The  head  of  a  department  has  power 
to  demand  a  bond  from  an  officer  appointed 
to  a  place  of  trust,  although  there  is  no  stat- 
utory authority  to  take  such  bond .  It  was  held 
in  United  States  v.  Tingey  (5  Pet.,  115)  that  the 
United  States  had  the  right  to  take  a  bond  to 
insure  the  faithful  performance  of  duty  on  the 
part  of  an  indiAidual  or  officer  where  such  bond 
was  voluntarily  given  and  was  not  in  viola- 
tion of  any  provision  of  law;  but  that  no  officer 
of  the  Government  has  a  right,  under  color  of  his 
office,  to  require  from  any  subordinate  officer, 
as  a  condition  of  holding  office,  that  he  should 
execute  a  bond  "with  a  condition  different 
from  that  prescribed  by  law."  The  pow(>r  of 
the  Government  to  take  bonds  in  cases  where 
not  required  by  any  law  or  regulation ,  but  only 
by  direction  of  the  head  of  a  department,  was 
recognized  again  in  United  States  v.  Bradley 
(10  Pet.,  343,  359).  (Moses  v.  U.  S.,  166  U.  S., 
571,  586,  587;  but  see,  contra,  24  Comp.  Dec, 
650;  compare  25  Comp.  Dec,  550.) 

It  is  in  the  discretion  of  the  President  whether 
or  not  to  reqiiire  bond  of  an  officer  of  the  Engi- 
neer Corps  employed  as  disbursing  agent  of  the 
Government.  (6  Op.  Atty.  Gen.,  24;  compare 
sec.  3614,  R.  S.) 

Although  the  general  functions  and  diities 
of  certain  officers  do  not  include  specifically 
the  disbursement  of  public  money,  and  those 
officers  are  not  required  by  statute  to  give  bond, 
yet  the  head  .of  the  department  may  lawfiilly 
assign  to  them  duties  within  the  general  scope 
of  their  employment  other  than  and  in  addition 
to  those  prescribed,  whenever  the  exigencies  of 
the  public  service  require  it.  ^Mierethe  partic- 
ular duty  thus  assigned  involves  the  receipt  or 
disbursement  of  public  money,  it  is  competent 
for  the  Secretary  to  take  a  bond  for  the  protec- 
tion of  the  Government  against  loss,  although 
such  bond  may  not  be  required  by  statute ;  and 
the  bond  would  be  valid  and  binding  upon  both 
principal  and  sureties  if  voluntarily  given  by 
the  officer.     (17  Op.  Atty.  Gen.,  391.) 

The  term  "voluntary  bond"  does  not 
mean  that  it  must  have  been  offered  and  pressed 
upon  the  Government  when  never  asked  for  or 
demanded  by  it.  It  is  a  voluntary  bond  when 
it  is  not  demanded  by  any  particular  statute  or 
regulation  based  thereon,  and  when  it  is  not 
exacted  in  violation  of  any  law  or  valid  regula- 
tion of  a  department.  The  Government  in  such 
cases  has  the  right  to  demand  a  bond,  in  the 
absence  of  any  law;  but  can  not  extort  a  bond 
from  a  reluctant  officer  with  a  condition  therein 
contained  different  from  that  which  a  statute 
calls  for.  (Moses  v.  U.  S.,  166  U.  S.,  571 ;  see  also 
U.  S.  V.  Maurice,  26  Fed.  Cas.  No.  15747; 
Jessup  V.  U.  S.,  106  U.  S.  147;  U.  S.  v.  Rogers, 
28  Fed.  Rep.,  607;  Boehm  v.  U.  S.,  20  Ct.  Cls., 
241;   6  Op.  Atty.  Gen.,  24.) 

The  head  of  a  department  may  "require"  an 
officer  to  execute  a  "voluntary"  bond  in  such 
penalty  as  the  former  may  deem  adequate  to 
protect  the  public  interests.  (26  Op. Atty.  Gen., 
627.) 

Although  there  is  no  statute  specially 
providing  for  the  execution  of  a  bond  by 
one  holding  a  particular  office,  the  order  of  the 
head  of  the  dei^artment  that  a  bond  bo  executed 
is  one  which  the  Secretary  has  power  to  make. 
"The  consideration  or  the  condition  of  the  bond 


476 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1383. 


must  not  be  in  violation  of  law ;  it  must  not  run 
counter  to  any  statute;  it  must  not  be  either 
malum  prohibitum  or  malum  in  se.  Otherwise 
and  for  all  purposes  of  security,  a  bond  may  be 
valid,  though  no  statute  directs  its  delivery." 
(Moses  1'.  U.S.,  166  U.S.,  571;  but  see  24  Comp. 
Dec,  650.    Compare  25  Comp.  Dec,  550.) 

In  Moses  v.  U.  S.  (1G6  U.  S.,  571),  and  U.  S.  v. 
Dieckerhoff  (202  U.  S.,  302),  the  court  concluded 
by  lajdng  down  the  general  rule  that  if  the  bond 
does  not  run  counter  to  a  statute,  and  is  neither 
malum  prohibitum  nor  malum  in  se,  it  is  bind- 
ing upon  all  parties.  And  even  though  it  run 
counter  to  a  statute  in  one  or  more  of  its  provi- 
sions, the  bond  is  valid  as  to  the  others,  pro\dd- 
ing  they  are  properly  severable  from  those 
which  are  invalid.  (26  Op.  Atty.  Gen.,  70,  72; 
citing  also  U.  S.  r.  Mora,  97  U.  S.,  421,  and  U.  S. 
V.  Hodson,  10  Wall.,  395.) 

Having  the  right  to  take  a  bond  in  a  case 
where  it  is  not  required  by  statute,  the  Govern- 
ment has  the  right  to  demand  it  from  the  officer 
and  to  say  to  him  that  if  he  do  not  give  it  he 
will  not  be  continued  in  the  office.  Such  a 
demand,  when  complied  with,  does  not  amount 
to  the  illegal  exaction  or  extortion  of  the  bond. 
The  case  of  a  bond  so  prociu-ed  differs  radically 
from  a  case  in  which  a  bond  is  extorted  from  a 
reluctant  officer  with  a  condition  therein  con- 
tained different  from  that  which  a  statute  calls 
for.     (Moses  t;.  U.  S . ,  166  U.  S . ,  571 . ) 

The  chief  of  an  office  in  the  War  Department 
has  the  power  to  designate  one  of  the  officers  de- 
tailed for  service  under  him  as  a  "property 
and  disbiu-sing  officer,"  to  whom  shall  belong, 
as  provided  for  in  the  order  of  such  chief,  the 
custody  of  all  Government  property  and  funds 
pertaining  to  the  office;  and  such  chief  has  the 
power,  under  the  general  direction  of  the  Secre- 
tary of  War,  to  provide  that  the  property  and 
disbursing  officer  shall  be  responsible  for  the 
due  execution  of  his  duties  as  such.  Where  in 
such  a  case  the  Secretary  of  War  directed  the 
property  and  disbursing  officer  so  designated 
to  give  bond  as  such  officer,  he  thereby  recog- 
nized and  in  effect  pro\'ided  that  there  should 
be  such  an  office.  A  bond  having  accordingly 
been  given  for  such  faithful  performance,  and 
such  officer  having  been  guilty  of  the  forgery  of 
vouchers  and  the  embezzlement  of  public 
moneys  officially  received  by  him,  such  con- 
duct was  a  plain  violation  of  his  duty  as  such 
officer,  and  the  condition  of  the  bond,  as  it 
plainly  covered  such  conduct,  was  \'iolated 
thereby.     (Moses  v.  U.  S.,  166  U.  S.,  571.) 

"A  distinction  is  drawn  in  this  class  of 
cases  between  a  bond  compulsorily  executed, 
as  in  the  case  under  consideration,  and  a  bond 
or  other  obligation  voluntarily  given  to  the  Gov- 
ernment for  which  there  is  no  statutory  author- 
ity. In  this  latter  case  the  bond  has  been  held 
to  be  valid."  (Constable  v.  National  Steam- 
ship Co.,  154  U.  S.,  51,  78.) 

"The  United  States,  for  instance,  as 
incident  to  the  general  right  of  sover- 
eignty, have  the  capacity,  within  the  sphere 
of  their  constitutional  powers,  and  through  the 
instrumentality  of  the  proper  department,  to 
enter  into  contracts  and  take  bonds,  not  pro- 
hibited by  law,  and  appropriate  to  the  just 
exercise  of  those  powers,  although  not  expressly 
directed  or  authorized  to  do  so  by  any  legisla- 


tive act. ' '     (Van  Brocklin  v.  State  of  Tennessee, 
117  U.  S.,  154.) 

WTiere  a  bond  given  by  an  officer  is  objection- 
able in  point  of  form,  the  direction  of  the  head  of 
the  office  to  execute  a  new  bond  must  be  con- 
sidered as  that  of  the  head  of  the  department, 
and  the  bond  given  in  compliance  therewitli 
can  not  be  considered  as  ha\T.ng  been  extorted 
from  the  officer  and  his  sureties  contrary  to  stat- 
ute.    (Soule  V.  U.  S.,  100  U.  S.,  8.) 

"Every  one  is  presumed  to  know  the 
law.  Ignorance  standing  alone  can  never  be 
the  basis  of  a  legal  right.  If  a  bond  is  liable  to 
the  objection  taken  in  this  case  and  the  jjarties 
are  dissatisfied,  the  objection  should  be  made 
when  the  bond  is  presented  for  execution.  If 
executed  under  constraint,  the  constraint  will 
destroy  it.  But  where  it  is  voluntarily  entered 
into,  and  the  principal  enjoys  the  benefits  which 
itisintended  to  secure,  and  a  breach  occurs,  it  is 
then  too  late  to  raise  the  question  of  its  validity. 
The  parties  are  estopped  from  availing  them- 
selves of  such  a  defense.  In  such  case  there  is 
neither  injustice  nor  hardship  in  holding  that 
the  contract  as  made  is  the  measure  of  the  right 
of  the  Government  and  of  the  liability  of  the 
obligors."     (U.  S.  v.  Hodson,  10  Wall.,  395, 409.) 

Where  a  statute  directs  a  bond  to  the  Govern- 
ment  to  be  given  by  persons  exercising  certain 
employments,  and  to  be  conditioned  for  the 
performance  of  several  particular  acts  which  it 
specifically  states,  and  the  agent  of  the  Govern- 
ment takes  a  bond  conditioned ,  not  in  the  spe- 
cific way  that  the  statute  directed  but  for  the 
party's  compliance  with  "aZZ  the  pro\T.sions"  of 
the  act,  ' '  and  such  other  acts  as  are  now  or  may 
hereafter  be  in  this  behalf  enacted,"  the  bond, 
if  it  has  been  voluntarily  given,  and  is  not  con- 
trary' to  law  or  public  policy,  is  valid  as  against 
a  party  who  has  enjoyed  benefits  under  it. 
And  this  although  the  statute  which  required 
the  bond  to  be  conditioned  in  a  particular  way 
contain  numerous  other  provisions  which  it 
makes  the  duty  of  persons  exercising  employ- 
ments under  it  to  comply  with,  but  for  which 
it  does  not  contemplate  the  gi\'ing  of  any  bond. 
(U.  S.  V.  Hodson,  10  Wall.,  395.) 

II.  Necessity  op  Furnishing  Bond  Before 
Entering  upon  Duty. 

Requirement  held  to  be  mandatory. — 
Where  public  officers  are  reciuired  to  give  bond 
previously  to  entering  upon  the  execution  of 
their  respective  offices,  held  that  they  can  not 
execute  their  offices  before  giving  bond,  because 
the  bond  is  a  preliminary  to  the  execution.  (5 
Op.  Atty.  Gen.,  687.) 

Requirement  held  not  mandatory. — 
Where  a  statute  required  that  pajnnasters  in  the 
Ajmy  "shall,  previously  to  entering  on  the 
duties  of  their  offices,  give  good  and  sufficient 
bonds  to  the  United  States,  fully  to  account  for 
all  moneys  and  public  property  wliich  they  may 
receive,  in  such  sum  as  the  Secretary  of  War 
shall  direct,"  held  that  an  officer's  "appoint- 
ment as  paymaster  was  complete  when  his  ap- 
pointment was  duly  made  by  the  President  and 
confirmed  by  the  Senate.  The  giving  of  the 
bond  was  a  mere  ministerial  act  for  the  security 
of  the  Government,  and  not  a  condition  prece- 
dent to  his  authority  to  act  as  pav-master. 


477 


Sec.  1383. 


Pt.  f.  REVISED  STATUTES. 


The  Navy. 


Having  received  the  public  moneys  as  pay- 
master, he  must  account  for  them  as  paymaster. ' ' 
(U.  S.  r.  Bradley,  10  Tet.,  343,  3G4.) 

Where  a  statute  required  an  officer,  "before  he 
enter  upon  the  duties  of  his  oflice,"  to  give 
bond:  i/cW  That  the  emoluments  of  the  office 
"were  the  considerations  allowed  him  for  the 
execution  of  the  duties  of  his  office;  and  his 
appi^intmcnt  and  commission  entitled  him  to 
receive  this  compensation,  whether  he  gave 
any  security  or  not";  held,  fur thrr,  that  he  was 
a  de  jure  as  well  as  a  de  facto  officer  prior  to 
furnishing  bond.  (U.  S.  v.  Linn,  15  Pet.,  290, 
313.) 

"When  a  person  has  been  nominated  to  an 
office  by  the  President,  confirmed  by  the  Sen- 
ate, and  his  commission  has  been  signed  by  the 
President,  and  the  seal  of  the  United  States 
affixed  thereto,  his  appointment  to  that  office 
is  complete.  Congress  may  provide,  as  it  has 
done  in  this  case,  that  certain  acts  shall  be  done 
by  the  appointee  before  he  shall  enter  on  the 
possession  of  the  ofiice  under  his  appointment. 
These  acts  then  become  conditions  precedent  to 
the  complete  investiture  of  the  office;  but  they 
are  to  be  performed  by  the  appointee,  not  by 
the  executive;  all  that  the  executive  can  do  to 
invest  the  person  with  his  office  has  been  com- 
pleted when  the  commission  has  been  signed 
and  sealed;  and  when  the  person  has  performed 
the  required  conditions,  his  title  to  enter  on  the 
possession  of  the  office  is  also  complete."  (U.  S. 
V.  Le  Baron,  19  How.,  73,  78.) 

In  view  of  former  decisions  (U.  S.  v.  Bradley, 
U.  S.  V.  Linn,  and  U.  S.  v.  Le  Baron,  above 
noted), ' '  it  can  not  be  held  that  the  execution  by 
Glavey  of  the  bond  required  bj^  the  act  of  1882 
was  a  condition  precedent  to  his  right  to  exer- 
cise the  functions  of  the  office  to  which  he  was 
appointed  by  the  Secretary  of  the  Treasury. 
Congress  did  not  so  direct.  His  appointment 
was  complete,  at  least,  when  he  took  the  re- 
quired oath  and  transmitted  e\'idence  of  the 
fact  to  the  Secretary.  After  taking  the  oath, 
evidencing  thereby  his  acceptance  of  the  ap- 
pointment, he  was  entitled  to  proceed  in  the 
execution  of  the  duties  of  his  office,  and  became 
liable  for  any  failure  to  properly  discharge 
them."  (Glavey  v.  U.  S.,  182  U.  S.,  595,  604. 
In  this  case  the  statute  did  not  require  the  bond 
to  be  executed  before  entering  on  the  duties  of 
the  office.) 

"^Mien  an  office  with  a  fixed  salary  has  been 
created  by  statute,  an  appointment  thereto  is 
complete  when  duly  made  by  the  President 
and  confirmed  by  the  Senate,  and  the  giving 
of  a  bond  required  by  law  is  a  mere  ministerial 
act  for  the  security  of  the  Government,  and 
not  a  condition  precedent  to  his  authority  to 
act  in  performance  of  duties  of  the  office. " 
(Glavey  v.  U.  S.,  182  U.  S.,  595;  see  also  U.  S. 
V.  Eaton.  169  U.  S.,  331.) 

The  provisions  of  section  1383,  Revised 
Statutes,  are  directory  only  and  do  not  pre- 
clude a  paymaster  who  has  given  bond  and 
whose  bond  has  been  approved  from  the  receipt 
of  the  pay  of  that  office  for  a  period  prior  to  the 
date  of  its  approval  (citing  4  Comp.  Dec,  496). 
There  is,  however,  a  separate  general  statute 
(sec.  1560,  R.  S.)  which  does  preclude  assistant 
paymasters  of  the  regular  naval  service  from 
the  receipt  of  pay  prior  to  the  date  of  the  ap- 


proval of  their  bond  as  assistant  paymasters. 
(Comp.  Dec,  Apr.  7,  1917,  file  26254-2224:2.) 

Pay  commences  prior  to  furnishing' 
bond. — Pay  of  disl)urHing  officers  may  com- 
mence prior  to  furnishing  bond^ — that  is,  upon 
acceptance  of  appointment  or  entering  upon 
duty — the  same  as  other  officers,  although 
statute  requires  that  said  officers  shall  give  bond 
"before  entering  upon  the  duties  of  their  re- 
spective offices."  (16  Op.  Atty.  Gen.,  38;  see 
also  U.  S.  V.  Eaton,  169  U.  S.,  346;  Glavey  v. 
U.  S.,  182  U.  S.,  595;  U.  S.  v.  Bradley,  10  Pet., 
343;  U.  S.  t;.  Linn,  15  Pet.,  290.) 

The  giving  of  a  bond  required  by  law  by  a 
person  appointed  to  an  office  is  a  ministerial 
act,  and  not  a  condition  precedent  to  the  per- 
formance of  duty  or  to  the  right  to  compensa- 
tion.    (9  Comp.  Dec,  101.) 

Statutes  which  require  that  an  officer  shall 
give  a  bond  before  entering  upon  the  duties  of 
his  office  are  directory  only,  and  a  receiver  of 
public  moneys  who  after  his  appointment  en- 
tered ui)on  the  duties  of  his  office  prior  to  giviog 
a  bond,  is  entitled  to  the  compensation  of  the 
office  from  the  date  of  his  entry  upon  duty. 
(20  MSS.  Comp.  Dec,  473;  see  also  4  Comp. 
Dec,  496.) 

[Prior  to  the  above  decisions,  it  was  held  by 
the  Comptroller  of  the  Treasury  that  where 
there  are  certain  acts  to  be  done  by  the  ap- 
pointee, as  for  instance  the  giving  of  a  bond, 
those  acts  are  conditions  precedent  to  the  com- 
plete investiture  of  the  office,  and  accord- 
ingly where  a  statute  required  an  ofiicer  to 
give  bond  satisfactory  to  his  chief,  he  was  not 
entitled  to  be  paid  for  his  services  prior  to  the 
date  of  approval  of  his  bond  by  liis  chief.  (2 
Comp.  Dec,  26;  see  also  2  Comp.  Dec,  330;  2 
Comp.  Dec,  448;  and  3  Comp.  Dec,  447.)] 

Compensation  can  not  be  paid  prior  to 
furnishing  bond. — It  has  been  repeatedly  held 
that  officers  are  not  entitled  to  salary  or  com- 
pensation where  they  have  failed  to  give  the 
bond  required  by  a  statute  providing  that  such 
bond  shall  be  given  before  the  officer  "enters 
upon  the  duties  of  his  office. "  In  the  case  of 
U.  S.  V.  Eaton  (169  U.  S.,  331),  it  was  held  that 
the  requirement  as  to  giving  bond  by  a  consular 
officer  before  entering  upon  the  duties  of  his 
office  was  directory,  and  in  that  case,  where  the 
officer  did  actually  give  bond,  he  was  entitled 
to  compensation  for  a  period  during  which  he 
performed  the  duties  of  the  office  before  his 
official  bond  was  received  and  approved.  The 
Comptroller  has  regarded  this  decision  of  the 
Supreme  Court  as  meaning  that  the  statutory 
provision  is  directory  as  to  the  time  of  perform- 
ance merely;  it  is  nowhere  suggested  in  the 
Eaton  case  t;hat  the  requirement  as  to  the  giving 
of  the  bond  was  merely  directory.  All  the  pro- 
visions of  a  statute  are  meant  to  be  obeyed,  or 
they  would  not  be  enacted.  Accordingly,  held 
that  an  officer  who  was  appointed  and  took  the 
oath  of  office,  but  died  before  execution  of  bond 
required  to  be  given  before  entering  upon  duty, 
was  not  entitled  to  an  allowance  of  salary  for  the 
period  between  the  date  of  oath  and  his  death, 
notwithstanding  that  the  failure  to  give  bond 
was  dtie  to  his  absence  from  the  United  States 
when  appointed,  and  his  death  prior  to  his 
qualifying  under  such  appointment,  and  not  to 
fault  or  neglect  on  his  part.     (15  Comp.  Dec, 


478 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1383. 


418;  citing  8    Comp.   Dec,   201;    compare  21 
Comp.  Dec,  49.) 

In  the  case  of  Glavey  v.  U.  S.  (182  U.  S.,  595), 
it  was  decided  that  an  officer  was  entitled  to 
the  salary  of  his  office  although  he  had  failed 
to  execute  an  official  bond;  but  in  that  case, 
although  the  statute  required  that  he  should 
"execute  a  proper  bond,"  the  bond  itself 
was  to  be  "in  such  form  and  upon  such  condi- 
tions as  the  Secretary  of  the  Treasury  may 
prescribe,"  and  there  was  no  inhibition  as  to 
his  entering  upon  duty  before  giving  such 
bond.  The  bond  was  not  given  for  the  reason 
that  the  Secretary  of  the  Treasury  failed  to 
prescribe  the  form  of  the  bond  or  the  condi- 
tions thereof  and  did  not  require  any  bond  of 
the  officer.  It  will  be  readily  seen  that  the 
law  and  facts  in  the  Glavey  case  differ  mate- 
rially from  those  in  a  case  where  the  statute 
requires  the  bond  to  be  given  by  the  officer 
before  entering  upon  the  duties  of  his  office 
and  can  not  be  construed  to  entitle  the  latter 
officer  to  salary  where  he  failed  absolutely 
to  give  a  bond.     (15  Comp.  Dec,  418.) 

"Where  an  officer  was  temporarily  appointed 
to  a  vacancy,  but  did  not  take  the  oath  of 
office  nor  give  bond,  and  was  subsequently 
given  a  new  appointment  to  the  same  position 
for  which  he  duly  qualified :  Held,  That  he  was 
not  entitled  to  the  salary  of  the  office  under 
the  first  appointment  until  he  had  qualified  by 
taking  the  proper  oath  and  gi\dng  bond  as 
required  by  law;  and  that  the  fact  that  he  had 
qualified  under  the  second  appointment  would 
not  prohibit  him  from  subsequently  qualifjing 
under  the  pre\'ious  appointment,  it  being 
understood  that  he  had  accepted  such  pre\T.ous 
appointment  and  immediately  entered  upon  the 
duties  of  the  office  thereunder.  (17  Comp.  Dec, 
95;  see  also  Comp.  Dec,  Jan.  30,  1917,  file 
26254-2189,  regarding  pay  of  Na\-y  mail 
clerks.) 

An  officer  is  not  invested  with  the  office 
imtil  he  gives  the  bond  required  by  law;  nor 
can  he  recover  the  salary  of  the  office  where 
he  has  neglected  to  give  bond.  (Dainese  v. 
U.  S.,  15  Ct.  Cls.,  64.) 

An  appointee  is  not  invested  with  an  office 
nor  entitled  to  the  salary  thereof  until  he 
complies  with  the  conditions  imposed  by  law, 
such  as  taking  the  oath  of  office  and  gi\ing 
bond,  if  one  be  required.  (WilUams  v.  U.  S., 
23  Ct.  Cls.,  46.) 

Compensation  of  naval  ofl3.cer  com- 
mences upon  date  of  approval  of  bond. — 
The  pay  of  a  naval  officer  required  to  give 
bond  commences  upon  original  entry  into  the 
service  upon  date  of  approval  of  his  bond. 
(Sec.  1560,  R.  S.) 

The  Nav-y  Regulations  provide  that,  when 
an  officer  is  required  to  give  bond,  "his  pay 
shall  begin  upon  the  date  of  approval  of  his 
bond  by  the  Secretary  of  the  ^*a\-y,  provided 
he  has  already  accepted  his  appointment  and 
taken  the  oath  of  office"  (Art.  R-4416,  Navy 
Regs.,  1913);  but  "an  officer  of  the  Pay  Corps, 
when  promoted,  is  entitled  to  increased  pay 
from  the  date  of  his  promotion,  his  bond  in  the 
lower  grade  being  binding  until  his  new  bond 
in  the  higher  grade  is  approved  "  (Art.  R-4418, 
Navy  Regs.,  1913,  as  amended  by  C.  N.  R.  7, 
Sept.  15,  1916). 


There  is  no  statute  requiring  the  pay  of  an 
assistant  paymaster  on  his  advancement  to  the 
rank  of  lieutenant  (junior  grade)  to  commence 
from  the  date  of  the  approval  of  his  bond. 
(Comp.  Dec,  Apr.  7,  1917,  file  26254-2224:2.) 

"^Tiile  section  1383,  Revised  Statutes,  is  direc- 
tory only,  and  does  not  preclude  a  paymaster 
who  has  given  bond  and  whose  bond  has  been 
approved,  from  the  receipt  of  the  pay  of  that 
office  for  a  period  prior  to  the  date  of  its  ap- 
proval, section  1560,  Revised  Statutes,  does 
preclude  assistant  paymasters  of  the  regular 
naval  service,  in  common  v^ith  all  other  regular 
naval  officers,  from  the  receipt  of  pay  prior  to 
the  date  of  the  approval  of  their  bond.  The 
same  law  is  made  applicable  to  assistant  pay- 
masters on  their  original  entry  into  the  Naval 
Reserve  Force,  and  the  pay  of  the  latter  is  like- 
wise prohibited  from  beginning  prior  to  the 
date  of  the  approval  of  their  bond,  (Comp.  Dec,, 
Apr.  7,  1917,  file  26254-2224:2;  see  also  Comp. 
Dec,  Apr.  14,  1917,  file  26254-2222:1.) 

Section  1560,  Revised  Statutes,  as  applied  to 
the  Naval  Reserve  Force,  relates  to  the  original 
entry  of  a  Naval  Reserve  officer  into  the  Naval 
Reserve  Force;  the  fact  that  the  officer  origi- 
nally entering  that  force  had  pre\iously  served 
in  the  Na^y  would  not  differentiate  him  from 
one  who  had  entered  it  without  previous  naval 
service.  (Comp.  Dec,  Apr.  30, 1917,  file  26254- 
2224:5.) 

Should  a  fonner  officer  be  reappointed  to  the 
regular  naval  service  as  a  passed  assistant  pay- 
master or  paymaster,  directly  from  civil  life, 
he  would  come  within  the  piu^iew  of  section 
1560,  and  his  pay  would  be,  by  that  section, 
precluded  from  commencing  from  a  date  prior 
to  that  of  the  approval  of  his  bond.  (Comp. 
Dec,  Apr.  30,  1917,  file  26254-2224:5.) 

The  payment  of  compensation  to  an  officer 
of  the  Navy  upon  his  original  entry  into  the 
service,  for  a  period  from  the  date  he  accepted 
his  appointment  until  the  date  his  bond  was 
approved  by  the  proper  authority,  is  in  viola- 
tion of  section  1560,  Revised  Statutes.  The 
evident  object  of  that  section  is  to  protect 
the  Government  by  insuring  the  giving  of  the 
required  security  in  handling  the  public  funds. 
Before  approval  of  his  bond  the  officer  is  in 
a  status  similar  to  that  of  a  de  facto  officer,  as 
he  is  not  fully  qualified  as  an  officer  de  jure. 
Where,  therefore,  he  has  been  paid  his  salary" 
under  the  circumstances  stated,  he  is  entitled 
to  retain  same,  itappearing  that  he  subsequently 
gave  bond  a  few  days  before  his  discharge  from 
the  service  took  effect.     (18  Comp.  Dec,  596.) 

^Tiere  a  candidate  for  appointment  as 
assistant  paymaster  in  the  Navy  after  his 
commission  has  been  issued  but  prior  to  its 
receipt  by  him  and  prior  to  receipt  of  notice 
by  him  that  he  had  been  commissioned  and 
prior  to  accepting  the  office  or  taking  the  oath 
of  office  or  entering  upon  duty,  executed^  an 
official  bond  in  anticipation  of  his  appoint- 
ment: Held,  That  under  section  1560,  Revised 
Statutes,  and  the  Navy  regulations  pursuant 
thereto,  he  was  not  entitled  to  pay  prior  to  the 
date  of  his  acceptance  of  the  appointment 
and  taking  the  oath  of  office.  (19  Comp.  Dec, 
358.) 

The  appointment  as  a  temporary  assistant 
paymaster  of  an  acting  pay  clerk,  temporarj-. 


479 


Sec.   1383. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


who.  as  sucli  actinp;  pay  clerk  had  given  a  bond 
for  $5,000,  was  not.  an  original  entry  into  the 
BL-rvice  within  the  meaning  of  section  1560, 
Revised  Statutes,  but  was  substantially  a  pro- 
motion, and  he  is  entitled  to  })ay  as  assistant 
paymaster  prior  to  approval  of  his  bond  as 
such.  (25  Comp.  Dec,  550;  compare  24  Comp. 
Dec,  650.) 

Date  of  bond. — "Every  bond  shall  bear 
date  even  with  or  subsequent  to  the  date  of  the 
commission  or  appointment."  (Art.  1-3903, 
Naval  Instructions,  1913.) 

"Every  bond  shall  bear  date  even  with  or 
prior  to  that  of  the  affidavits  of  the  sureties  and 
to  that  of  the  certificates  as  to  their  sufficiency." 
(Art.  1-3904,  Naval  Instructions,  1913.) 

III.  Date  from  which  Bond  Takes  Effect 

From  date  of  delivery. — "A  bond  may 
not  be  a  complete  contract  until  it  has  been 
accepted  by  the  obligee;  but  if  it  be  delivered 
to  him  to  be  accepted  if  he  should  choose  to  do 
so,  that  is  not  a  conditional  delivery,  which 
will  postpone  the  obligor's  undertaking  to  the 
time  of  its  acceptance,  but  an  admission  that 
the  bond  is  then  binding  upon  him  and  will  be 
BO  from  that  time,  if  it  shall  be  accepted. 
When  accepted,  it  is  not  only  binding  from 
that  time  forward,  but  it  becomes  so  upon  both 
from  the  time  of  delivery.  This  is  the  offer 
which  the  obligor  makes  when  he  hands  the 
bond  to  the  obligee,  and  in  that  sense  the 
obligee  received  it."  (Broome  v.  U.  S.,  15 
How.,  143,  153.  In  this  case  the  statute  did 
not  require  the  officer  to  give  bond  before  enter- 
ing upon  duty,  but  within  three  months  there- 
after.) 

It  is  not  necessary  that  the  bond  be  handed 
to  the  officer  charged  with  its  approval.  It 
may  be  handed  to  an  agent  appointed  by  that 
officer  to  receive  it,  or  it  may  be  put  into  the 
possession  of  any  person  to  deliver  it,  or  it  may 
be  transmitted  by  mail.  If  done  in  any  one  of 
these  ways,  it  is  a  delivery  from  the  moment 
that  the  collector  and  his  sureties  part  with  it. 
It  is  from  that  moment  in  the  course  of  trans- 
mission, wdth  the  intention  that  the  law  may 
act  upon  it  through  the  agency  of  the  approving 
officer,  and  his  subsequent  approval  is  an  ac- 
ceptance with  relation  to  the  time  beginning 
the  transmission.  A  written  acceptance  dated 
after  a  delivery  is  not  to  be  taken  as  the  time 
from  which  the  completeness  of  the  contract 
is  to  be  computed ;  but  such  an  acceptance  has 
a  relation  to  the  time  of  delivery,  making  that 
time  the  beginning  of  its  obligation  upon  the 
parties  to  the  bond .  (Broome  -y .  U .  S . ,  15  How . , 
143.) 

"The  possession  of  the  bond  by  the  Treasury 
Department  was  prima  facie  evidence  of  de- 
livery."    (Duncan  v.  U.  S.,  7  Pet.,  435, 447.) 

The  general  rule  of  law  is  that.  Like  a  deed, 
an  official  bond  becomes  operative  from  the 
date  of  its  delivery.  In  the  absence  of  evi- 
dence to  the  contrary,  the  delivery  wiU  be 
presumed  to  have  been  made  on  the  day  of 
its  date.  But  where  it  is  pro\'ided  by  statute 
that  the  official  bond  to  be  given  by  an  officer 
shall  be  approved  by  another  officer,  other 
considerations  arise.  In  Broome  v.  United 
States  [above  noted]  it  was  held  that  an  official 


bond,  when  aiccepted,  is  binding  from  the  time 
of  its  delivery;  but  in  that  case  the  statute 
provided  that  the  officer  should  give  bond 
' '  within  three  months  after  he  enters  upon  the 
execution  of  the  duties  of  his  office";  and  in 
United  States  v.  Le  Baron  [noted  below]  the 
court  distinguished  this  case  from  one  where 
no  time  is  allowed  after  entering  upon  the 
duties  of  the  office  for  giving  the  bond  required 
by  law,  and  held  that  in  the  latter  case  the  bond 
speaks  only  from  the  time  of  its  accept- 
ance and  "can  not  be  intended  to  relate 
back  to  any  earlier  date."  But  in  Glavey  v. 
United  States  (182  U.  S.,  595)  the  court,  after 
reviewing  prior  decisions,  including  United 
States  V.  Le  Baron,  held  that  the  giving  of  an 
official  bond  required  by  law  to  be  given  by  an 
officer  is  a  mere  ministerial  act  for  the  secm-ity 
of  the  Government,  and  not  a  condition  prece- 
dent to  his  authority  to  act  in  the  performance 
of  the  duties  of  his  office.  "I  think,  therefore, 
the  principle  enunciated  in  Broome  v.  United 
States,  supra,  that  when  a  bond  is  accepted 
it  becomes  binding  from  the  time  of  delivery 
must  be  regarded  as  controlling.  This  princi- 
ple is  sometimes  expressed  in  different  lan- 
guage, it  being  held  that  a  subsequent  approval 
of  an  official  bond  must  be  deemed  to  relate 
back  to  the  time  the  bond  was  delivered  for 
approval."  (14  Comp.  Dec,  428;  compare  17 
Comp.  Dec,  86,  noted  below, under  "Intention 
of  parties  controlling.") 

From  date  of  approval. — "The  bond  of 
an  officer  of  the  Pay  Corps  takes  effect  from 
the  date  of  its  approval  by  the  Secretary  of 
the  Navy."  (Art.  R-3002  (3),  Navy  Regs. 
1913.) 

In  Broome  v.  United  States  [noted  above]  it 
was  held  that  a  bond  may  be  deemed  to  be  de- 
livered when  it  is  put  in  course  of  transmission 
to  the  officer  whose  duty  it  is  to  examine  and 
approve  or  reject  such  bonds.  But  this  de- 
cision proceeded  upon  the  ground  that  the  act 
of  Congress  there  under  consideration  allowed 
the  officer  to  exercise  his  office  for  three  months 
without  a  bond;  and  that  consequently  the 
approval  and  delivery  were  not  necessarily 
simultaneous  acts,  nor  need  the  approval  pre- 
cede the  delivery;  and  the  distinction  was  ad- 
verted to  between  the  case  then  presented  and 
one  in  which  the  statute  required  the  officers  to 
give  bond  with  approved  security  on  their  ap- 
pointment, and  allowed  them  no  time,  after 
entering  on  their  offices,  to  comply  with  this 
requirement.  In  the  latter  case  the  bond  must 
be  accepted  by  the  head  of  the  department  as 
sufficient  in  point  of  amount  and  security  before 
it  can  have  any  effect  as  a  contract;  otherwise 
the  officer  might  enter  on  the  office  merely  on 
giving  a  bond  which,  on  its  presentation,  the 
head  of  the  department  might  reject  as  insuffi- 
cient. In  other  words,  the  person  appointed 
might  act  without  any  operative  bond,  which 
was  not  intended  by  Congress.  The  purpose  of 
the  surety  was  to  become  security  for  one 
legally  authorized  to  exercise  the  office,  not  for 
one  who  entei'S  on  it  unlawfully  because  he 
failed  to  comply  with  the  requirement  to  fur- 
nish an  approved  bond;  and  this  purpose  can 
be  accomplished  only  by  holding  that  the  ap- 
pointee can  not  act,  and  the  bond  can  not  take 
effect,  until  it  is  approved.    Our  opinion  is, 


480 


The  Navy. 


Ft.  2.   REVISED  STATUTES. 


Sec.  1383. 


therefore,  that  this  bond  speaks  only  from  the 
time  when  it  reached  the  head  of  the  depart- 
ment and  was  accepted  by  him;  that  until  that 
time  it  was  only  an  offer  or  proposal  of  an  obh- 
gation  which  became  complete  and  effectual  by 
acceptance;  and  that,  unlike  the  case  of  an 
officer's  bond  which  is  not  a  condition  precedent 
to  his  taking  office  and  which  may  be  intended 
to  have  a  retrospective  operation,  the  bond  in 
this  case  can  not  be  intended  to  relate  back  to 
any  earher  date  than  the  time  of  its  acceptance, 
because  it  is  only  after  its  acceptance  that  there 
can  be  any  such  holding  of  the  office  as  the  bond 
was  meant  to  apply  to.  (U.  S.  v.  Le  Baron, 
19  How.,  73;  compare  Glavey  v.  U.  S.,  182 
U.  S.,  595,  and  14  Comp.  Dec,  428,  noted  above, 
under  "From  date  of  dehvery.") 

The  officer  was  required  by  law  to  give  bond 
before  entering  upon  the  duties  of  his  office. 
According  to  the  principles  laid  down  in  the 
case  of  United  States  v.  Le  Baron,  a  bond  given 
under  that  provision  must  be  considered  to 
speak  and  to  take  effect,  not  from  the  day  of 
its  date,  but  from  the  date  upon  which  it  was 
approved.     (14  Op.  Atty.  Gen.,  7.) 

■'It  is  settled  that  a  bond  of  that  character 
takes  effect  on  the  date  of  acceptance,  and  it  is 
from  that  time  it  speaks."  (Moses  v.  U.  S.,  166 
U.  S.,  571,  citing  U.  S.  v.  Le  Baron,  19  How., 
73  and  4  Wall.,  642.  647.) 

For  cases  as  to  what  constitutes  approval,  see 
below,  "VI.  Approval  of  Bond." 

Intention  of  parties  controlling. — WTiere 
the  bond  is  tendered  under  such  circumstances 
as  to  show  that  it  is  intended,  if  accepted,  to  be 
effective  from  its  date,  it  relates  back,  when 
accepted,  to  its  date.  '\Miere.  however,  it  is 
executed  under  such  circumstances  as  to  show 
that  it  is  tendered  as  an  offer  of  an  obligation 
to  take  effect  when  approved,  it  neither  relates 
back  nor  is  completely  executed  until  ap- 
proved. In  such  case  the  date  of  approval  will 
be  taken  as  the  date  of  final  deliveiy,  and  all 
accounts  under  such  bond  should  be  started  by 
taking  that  as  the  date  of  delivery.  (17  Comp. 
Dec, ^86.) 

It  is  not  ordinarily  a  prerequisite  to  the  legal 
holding  of  an  office  that  a  bond  be  approved 
when  a  person  enters  upon  the  duties  of  his 
office.  A  bond  afterwards  given  may  relate 
back  to  his  entry  upon  office,  or  may  be  effec- 
tive from  the  time  it  was  delivered,  or  when  it 
was  approved,  or  when  he  entered  upon  office, 
depending  upon  the  circumstances  of  its  exe- 
cution.    (17  Comp.  Dec,  86.) 

The  liability  upon  a  renewal  bond  in  some 
instances  commences  when  it  is  delivered,  in 
other  instances  when  it  is  approved.  No  in- 
flexible rule  can  be  laid  down  covering  all 
cases  as  to  when  the  liabilitj'  of  one  bond  ceases 
and  when  the  other  commences.  These  are 
questions  of  law,  in  no  way  depending  upon 
the  convenience  of  the  auditors  in  stating 
accounts  under  them.     Q7  Comp.  Dec,  86.) 

The  presumption  that  delivery  was  made  on 
the  date  of  the  bond  would  not  obtain  where  it 
was  clear  that  the  delivery  of  the  bond  was  a 
mere  offer,  or  was  intended  as  an  escrow.  In 
Buch  case  it  could  only  become  operatiA-e  from 
its  date  by  relating  back  to  the  time  of  its  exe- 
cution.    (17  Comp.  Dec,  86.) 


May  be  made  retroactive. — A  bond  volun- 
tarily given  by  an  officer  of  the  United  States 
for  the  faithful  discharge  of  the  duties  of  his 
office,  under  a  statute  requiring  such  officers 
to  give  bond  "for  the  faithful  discharge  of  the 
duties  of  their  respective  offices,"  may  be 
worded  so  as  to  operate  retroactively.  Such  a 
bond  does  not  contain  provisions  or  conditions 
differing  from  or  in  any  wise  inconsistent  with 
those  prescribed  or  required  by  law.  (29  Op. 
Atty.  Gen.,  28.) 

The  manifest  purpose  and  intent  of  the  law 
is  that  the  United  States  shall  be  fully  secured 
for  the  faithful  discharge  by  public  officers  of 
their  duties,  and  therefore  it  is  in  entire  con- 
formity with  the  purpose  of  the  act  to  require 
that  a  bond  given  by  such  an  officer  shall  cover 
his  entire  term.  It  frequently  occurs,  however, 
that  the  public  interests  require  that  an  officer 
enter  upon  the  discharge  of  his  duties  before 
he  is  able  to  give  the  requisite  bonds,  or,  as  the 
statute  contemplates,  a  new  bond  may  be 
necessary  in  order  to  increase  or  strengthen 
existing  bonds.  To  hold,  therefore,  that  in 
such  a  case  the  bond  could  not  be  made  to 
cover  his  prior  ser\-ice,  even  if  voluntarily 
given,  would  be  to  say  that  the  statute  requires 
the  Government  to  go  unprotected  to  that  ex- 
tent. Such  a  view  is  contrary  to  sound  princi- 
ples of  public  policy,  and  is  not  required  by 
any  consideration  of  justice  or  protection  to 
the  official  who  gives  the  bond.  (29  Op.  Atty. 
Gen.,  28.) 

Where  an  officer  was  temporarily  appointed 
to  a  vacancy,  but  did  not  take  the  oath  of  office 
nor  give  bond,  and  was  subsequently  given  a 
new  appointment  to  the  same  position,  for 
which  he  duly  qualified:  Held,  That  the  fact 
that  he  had  qualified  under  the  second  ap- 
pointment would  not  prohibit  him  from  sub- 
sequently qualifying  under  the  pre\-ious  ap- 
pointment by  taking  the  proper  oath  and  giv- 
ing bond  as  required  by  law,  it  being  imder- 
stood  that  he  had  accepted  such  previous  ap- 
pointment and  immediately  entered  upon  the 
duties  of  the  office  thereunder.  (17  Comp. 
Dec,  95.) 

IV.  Form  of  Bond. 

In  general. — In  the  case  of  some  officers 
the  form  of  bond  is  prescribed  by  statute  (e.  g., 
see  sec.  2619,  R.  S..  as  amended  by  act  Feb. 
27,  1877,  chap.  69,  secl,]9  Stat.,  245).  In  the 
case  of  other  officers,  the  form  of  the  bond,  by 
express  terms  of  the  statute  requiring  it,  is  to 
be  prescribed  by  or  to  be  subject  to  the  ap- 
proval of  the  President,  head  of  department, 
or  other  officer  named  therein  (e.  g.,  see  sec. 
1697,  R.  S.).  In  most  cases,  however,  where 
offiical  bonds  are  reqiiired,  the  form  thereof  is 
tacitly  or  impliedly  left  by  Congress  to  be  regu- 
lated or  fixed  by  the  officers  by  whom  the  bonds 
are  to  be  approved.  Section  1383,  RoAdsed 
Statutes,  belongs  to  this  class  of  cases  (18  Op. 
Atty.  Gen.,  274). 

Must  be  under  seal. — "The  term  bond, 
ex  vi  termini,  imports  a  sealed  instrument,  and, 
as  a  general  rule,  independent  of  any  statute 
proA-iding  otherwise,  sealing  is  neces.sary  to 
constitute  a  perfect  bond.  *  *  *  The  seal 
is  not  a  mere  formality  of  execution,  but  a  mat- 


481 


Sec.  1383. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


ter  of  substance  which  gives  to  the  paper  cer- 
tain lofral  effects  which  cannot  be  attached  to 
an  unsealed  paper.  *  *  *"  (26  Op.  Atty. 
Gen.,  507.) 

Where  an  act  of  Congi-ess  directs  the  security 
to  be  taken  by  bond,  an  instrument  not  under 
seal  was  not  a  bond  and  was  not  in  form  the 
instrument  required  by  the  act  of  Congress. 
(U.  S.  V.  Linn,  15  Pet.,  290;  see  also  Moses  v. 
U.  S.,166U.S.,571;U.S.  t'.Linn.,inow.,104.) 

^Tiere  the  bond  sued  on  had  no  seal  opposite 
the  name  of  one  of  the  oblitrors,  and  there  was 
no  e\'idence  that  he  had  adopted  the  seal  of 
any  of  the  other  parties  to  the  instrument,  it 
was  held  that  the  mstniment  was  not  his  bond, 
because  in  fact  there  was  no  e\ddence  of  any 
seal  belonging  to  him  ever  having  been  affixed, 
and  no  siu'h  seal  was  on  the  instrument  when 
it  was  produced  on  the  trial.  (Moses  v.  U.  S., 
166  U.  S.,  571,582.) 

Bonds  must  be  sealed,  and  for  abundant 
caution  they  should  be  sealed  with  wax  or 
wafer  and  paper  cap,  which  are  everywhere 
acknowledged  to  be  seals;  although  scrolls  or 
any  other  sealing  would  be  valid  wliich  is  a 
good  sealing  in  the  place  where  they  are  exe- 
cuted.    (2  Op.  Atty.  Gen.,  93.) 

"Seals  of  wafer  or  wax  shall  be  attached  to 
the  bond  at  the  place  indicated,  opposite  the 
places  for  the  signatures  of  the  principal  and 
Biireties."  (Art.  1-3905,  Naval  Instructions, 
1913.) 

"  In  all  cases  where  a  seal  is  necessary  by  law 
to  any  commission,  process,  or  other  instrument 
provided  for  by  the  laws  of  Congress,  it  shall  be 
lawful  to  affix  the  proper  seal  by  making  an 
impression  therewith  dii'ectly  on  the  paper  to 
whjch  such  seal  is  necessary;  which  shall  be  as 
valid  as  if  made  on  wax  or  other  adhesive  sub- 
stance."    (Sec.  6,  R.  S.) 

In  an  action  on  an  official  bond,  although 
the  copy  of  the  bond  sued  on,  which  was  certi- 
fied from  the  Treasury  Department  of  the 
United  States,  exhibited  a  scroll  instead  of  a 
seal,  it  may  be  presumed  that  the  original  bond 
had  been  executed  according  to  law.  (Dun- 
can V.  U.  S.,  7  Pet.,  435.) 

A  corporation  may  adopt  for  the  purpose  and 
use  a  seal  other  than  its  corporate  seal  on  a  bond 
so  as  to  make  the  bond  a  corporate  deed  of  the 
corporation.  An  agent  of  a  corporation,  ap- 
pointed by  an  instrument  under  the  corporate 
seal  of  the  corporation,  may  on  its  behalf  adopt 
a  special  seal  so  as  to  make  it,  in  executing  the 
purpose  for  which  he  was  appointed,  the  cor- 
porate seal  of  the  corporation.  (26  Op.  Atty. 
Gen.,  507.) 

For  other  cases,  see  below  "Alteration  of 
bond." 

May  be  valid  instrument  although  not 
under  seal. — Although  an  unsealed  instru- 
ment purporting  to  be  an  official  bond  is  not  a 
"bond"  and  does  not  meet  the  statutory 
requirement,  nevertheless  held  that  such 
instrument  was  good  at  common  law.  The 
actual  difference  between  an  instrument  under 
seal  and  one  not  under  seal  is  that  in  the  one 
case  the  seal  imports  a  consideration  and  in  the 
other  it  must  be  proved.  There  ought  to  be 
some  very  strong  grounds  to  authorize  a  court 
to  declare  a  contract  absolutely  void  which 
has  been  voluntarily  made  upon  a  good  con- 


sideration and  delivered  to  the  party  for  whose 
benefit  it  was  intended.  The  mere  want  of 
seals  is  not  such  a  departure  from  the  statute 
as  to  warrant  the  court,  upon  any  supposed 
principles  of  public  pohcy,  to  pronounce  the 
iuKtrimient  utterly  void;  it  being  good  at  com- 
mon law,  and  given  in  furtherance  of  the  great 
object  of  the  statute,  and  as  security  for  the 
faithful  discharge  of  the  duties  required  of  the 
office.     (U.  S.  V.  Linn,  15  Pet.,  290.) 

"The  United  States  v.  Linn  was  an  action 
against  a  receiver  of  public  moneys  and  his 
sureties.  The  statute  in  that  case  required 
that  the  receiver  should  'give  bond,  with 
approved  security,  in  the  sum  of  ten  thousand 
dollars,  for  the  faithfiil  discharge  of  his  trust.' 
The  instrument  given  was  without  seal,  and 
was,  therefore,  not  the  security  required  by 
the  statute.  The  counsel  for  the  defendants 
insisted  that  the  instrument  was  void  for  the 
reasons,  among  others,  that  it  was  not  the  form 
of  security  required  by  the  statute;  that  the 
prescribing  of  one  security  was  an  implied 
prohibition  of  all  others;  and  that  if  the  instru- 
ment in  question  could  be  sustained,  the 
statute  might  in  all  cases  be  disregarded  and  a 
mortgage  of  realty  or  personalty  or  any  other 
imaginable  security  might  be  substituted  for 
that  which  the  statute  required.  The  court 
responded:  'If  this  is  a  contract,  entered  into 
by  competent  parties  and  for  a  lawful  purpose, 
not  prohibited  by  law,  and  is  founded  upon  a 
sufficient  consideration,  it  is  a  valid  contract 
at  common  law.  A  mortgage,  or  any  other 
approved  security  voluntarily  given,  would  no 
doubt  be  vaUd.' "  (U  S.  v.  Hodson,  10  Wall., 
395,  408.) 

Names  of  parties. — The  law  recognizes  but 
one  Christian  name;  hence  the  bond  with 
siu-eties,  and  the  oath  of  office  of  a  receiver  of 
public  moneys,  subscribed  "Benjamin  F. 
Edwards,"  where  the  commission  had  issued 
to  "Benjamin  Edwards,"  are  valid.  (2  Op. 
Atty.  Gen.,  332.) 

"A  mistake  in  the  baptismal  name  of  an 
obligor  to  abend,  executed  by  his  attorney  didy 
authorized  to  execute  a  bond  in  his  right  name, 
does  not  ^dtiate  the  bond,  the  error  being  shown 
to  be  purely  accidental."  (Dolton -y.  Cain,  14 
Wall.,  472.)  See  9  Op.  Atty.  Gen.,  128,  holding 
that  a  bond,  to  be  accepted  by  the  Govern- 
ment, ought  to  be  executed  by  the  parties, 
and  not  by  their  attorney. 

^Vhere  the  statute  requires  the  giving  of 
seciu-ity  to  seciire  payment  "to  the  Treasurer 
of  the  United  States,"  this  does  not  mean  that 
the  bond  should  be  made  payable  to  the  Treas- 
urer of  the  United  States;  it  may  be  made  pay- 
able directly  to  the  United  States  and  con- 
ditioned that  payment  shall  be  made  to  the 
Treasurer  and  not  depart  from  any  express 
provision  of  the  law.  But  if  the  statute  should 
be  construed  to  mean  that  the  bond  shall  be 
payable  to  the  Treasurer,  still  we  are  of  opinion 
that  a  bond  in  which  the  Uiuted  States  is  the 
obligee,  and  which  is  conditioned  that  payment 
shall  be  made  to  the  Treasiu-er,  is  a  valid  and 
binding  obligation.  The  authorities  show 
that  the  United  States  can,  without  the  au- 
thority of  any  statute,  make  a  valid  contract, 
and  that  when  the  form  of  a  contract  is  pre- 
scribed by  the  statute   a   departure  from  its 


482 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1383. 


directions  will  not  render  the  contract  invalid. 
The  bond  is  good  at  common  law.  (Jessup 
V.  U.  S.,  106  U.  S.,  147.) 

Where  the  United  States  of  America  are  the 
obligees,  a  misdescription  of  the  incorporate  or 
political  name  in  the  bond  by  calling  them 
"United  States  of  North  America"  furnishes 
no  valid  ground  of  exception,  there  being  an 
averment  of  identity  in  the  declaration. 
(U.  S.  V.  Bradley,  10  Pet.,  343.) 

Witnesses. — The  attestation  of  witnesses  to 
a  bond  is  merely  for  convenience  of  proof. 
The  law  does  not  requii'e  such  witnesses,  but 
it  is  expedient  and  safe  always  to  require  them. 
(17  Op.  Atty.  Gen.,  285.) 

No  attestation  is  necessary  to  their  validity, 
although  witnesses  may  be  useful  and  con- 
venient to  make  proof  of  handiATiting  in  case 
of  necessity.     (2  Op.  Atty.  Gen.,  93.) 

Acknowledgment. — "An  acknowledgment 
is  the  act  of  one  who  executes  a  deed  on  going 
before  some  competent  officer  or  court  and  de- 
claring it  to  be  his  act  and  deed.  The  functions 
of  an  acknowledgment  are  twofold,  to  authorize 
the  deed  to  be  given  in  e'vidence  without  f  lu^ther 
proof  of  its  execution,  and  to  entitle  it  to  be 
recorded.  *  *  *  Bonds  differ  from  deeds 
in  that  the  former  are  not  required  to  be  re- 
corded. For  that  reason,  no  acknowledgment 
as  to  them  is,  in  my  opinion,  necessary." 
(26  Op.  Atty.  Gen.,  507.) 

Certificate  of  sufficiency. — There  is  no  law 
requiring  a  United  States  judge  or  a  United 
States  attorney  to  certify  as  to  the  sufficiency 
of  guarantors  or  bondsmen,  and  no  fees  are 
chargeable  against  the  Government  for  such 
sei-vice.  (19  Op.  Atty.  Gen.,  181.  See  below 
"Expense  of  fiunisliing  bond,"  under  "X. 
Miscellaneous.") 

Where  the  law  then  in  force  required  the 
bond  of  a  purser  in  the  Xa\-y  to  be  approved 
by  the  judge  or  attorney  for  the  United  States 
of  the  district  in  which  the  purser  resided, 
it  was  held  that  to  save  the  necessity  of 
proof  on  this  subject,  the  residence  should  be 
expressed  in  the  body  of  the  instrtiment; 
held,  further,  that  the  certificate  of  the  district 
attorney  approving  the  sureties  is,  to  all  sub- 
stantial purposes,  an  approval  of  the  bond. 
(2  0p.  Atty.  Gen.,  93.) 

Where  the  law  required  that  the  sureties  on 
a  naval  officer's  bond  shall  be  approved  by  the 
judge  or  attorney  for  the  United  States  of  the 
district  in  which  such  naval  officer  shall  reside, 
it  was  held  that  the  certificate  of  a  district  at- 
torney was  sufficient  although  he  did  not  use 
the  word  "approved,"  which  was  used  in  the 
statute;  but  his  certificate  that  the  sureties 
were  "good  and  sufficient"  was,  to  all  substan- 
tial purposes,  an  approval.  (2  Op.  Atty.  Gen., 
-93.) 

By  Naval  Instructions,  1913  (art.  1-3910), 
it  is  pro\'ided  that  "the  sufficiency  of  the 
sureties  shall  be  certified  to  by  a  judge  or  a 
clerk  of  a  United  States  court  for  the  district 
in  which  the  sureties  reside,  or  by  a  United 
States  attorney  for  such  district." 

[Theact  of  March  1,1817,  chapter  24,  section  1, 
3  Stat.,  350,  which  is  one  of  the  statutes  cited 
by  the  revisers  in  their  note  to  section  1383,  pro- 
vided that  the  sureties  on  bonds  of  naval  offi- 
cers "shall  be  approved  by  the  judge  or  attor- 


ney for  the  United  States,  for  the  district"  in 
wliich  such  naval  officers  shall  reside.  How- 
ever, this  provision  of  the  original  law  was  not 
embodied  in  the  Revised  Statutes,  and  was 
therefore  repealed  by  section  5596,  Revised 
Statutes.  In  this  connection  see  below,  "Re- 
newal of  bonds,"  under  "V.  Sufficiency  of 
Sureties.''] 

Temporary  appointment. — AMiere  a  tem- 
porary appointment  of  an  officer  has  been  made 
by  the  President,  the  recital  in  the  official 
bond  should  be  in  conformity  with  the  nature 
of  the  appointment.     (9  Op.  Atty.  Gen.,  53.) 

Parties  jointly  and  severally  bound  for 
full  amount. — The  form  of  bond  required  to 
be  given  by  a  public  officer — whether  the  par- 
ties thereto  are  to  be  jointly  and  severally  or 
may  be  only  jointly  bound,  and  whether  each 
surety  is  to  bind  himself  for  the  full  amount 
of  the  penalty  or  may  restrict  his  liability  to 
a  less  amount — where  not  made  the  subject 
of  statutory  regulation  is  left  to  the  determina- 
tion of  the  officers  by  whom  the  bond  is  to  be 
approved.     (18  Op.  Atty.  Gen.,  274.) 

The  form  ordinarily  made  use  of  in  practice 
is  that  wherein  the  principal  and  sureties  are 
jointly  and  severally  botmd  for  the  full  amount 
of  the  penalty. _   (18  Op.  Atty.  Gen.,  274.) 

This  form  being  preferable  to  any  other,  and 
its  use  sanctioned  by  long  practice,  the  adop- 
tion of  a  different  form,  though  it  may  not  be 
inconsistent  with  the  terms  of  the  statute  so 
to  do,  would  not  be  warranted  unless  the  cir- 
cumstances of  the  particular  case  were  such 
that  the  public  interests  could  not  otherwise 
be  ser\^ed.     (18  Op.  Atty.  Gen.,  274.) 

Departure  from  statutory  form. — "The 
authorities  show  that  the  United  States  can, 
without  the  authority  of  any  statute,  make  a 
valid  contract,  and  that  when  the  form  of  a 
contract  is  prescribed  by  the  statute,  a  depar- 
tiu"e  from  its  directions  will  not  render  the 
contract  invalid.  The  bond  is  good  at  com- 
mon law."  {19>  Op.  Atty.  Gen.,  458,460,  quot- 
ing Jessup  V.  U.  S.  106  U.  S.,  152;  see  also 
to  same  effect  26  Op.  Atty.  Gen.,  70,  72,  citing 
Moses  V.  U.  S.,  166  U.  S.,  571,  and  U.  S.  v. 
Dieckerhoff,  202  U.  S.,  302.) 

Nothing  but  very  strong  and  express  lan- 
guage should  induce  a  court  of  justice  to  adopt 
the  interpretation  that  a  bond  taken  in  a  form 
not  prescribed  by  the  statute,  because  of 
mutual  mistake  or  accident  and  wholly  without 
design,  should  be  utterly  void;  it  would  be  a 
very  mischievous  interpretation  of  the  act  to 
suppose  that  it  intended  such  consequence. 
(U.  S.  V.  Bradley,  10  Pet.,  343;  U.  S.  v.  Linn, 
15  Pet.,  290.) 

The  case  of  United  States  v.  Bradley  1 10  Pet., 
343,  365),  holding  that  bonds  not  taken  in  the 
prescribed  form  are  not  titterly  void,  "has  been 
frequently  sustained  by  the  Supreme  Court, 
and  was  ( ited  as  the  law  in  the  case  of  Jessup  r. 
The  United  States  (106  U.  S.,  151),  where  a 
number  of  the  decisions  of  the  Supreme  Court 
upon  this  question  are  re\dewed.  The  decisions 
of  the  Supreme  Court  sustaining  the  validity  of 
bonds  executed  under  directory  statutes, 
where  mistakes  and  omissions  have  occurred 
therein,  are  as  follows:  Jessup  v.  United  States 
(106  U.  S  ,  147),  United  States  v.  Mora  (97  U.  S., 
421),  United  States  v.  Bradley  (10  Pet.,  362), 


483 


Sec.  1383. 


Ft.  2.  RE  VISED  STAT  UTES. 


The  Navy. 


Farrar  r.  The  United  States  (5  Pet.,  373)."  (18 
Op.  Atty.  Gen.,  458.) 

where  a  statute  expressly  requires  a  public 
odirer  to  give  l)ond  for  the  fail  hlul  disbursement 
of  public  money,  and  in  the  bond  given  the 
words  which  relate  to  disbursement  are  omitted, 
and  the  only  words  inserted  are  "that  lie  shall 
faithfully  discharge  the  duties  of  his  office," 
held  that,  ''the  court  feel  no  difficulty  in  main- 
taining, that  where  the  conditions  are  cumula- 
ti\'e,  the  omission  of  one  condition  can  not  in- 
validate the  bond,  so  far  as  the  other  operates 
to  bind  the  party."  (Farrar  v.  U.  S.,  5  Pet., 
373.) 

"  It  is  a  settled  principle  of  law  that  where  a 
bond  contains  conditions,  some  of  which  are 
legal  and  others  illegal,  and  they  are  severable 
and  separable,  the  latter  may  be  disregarded 
and  the  former  enforced."  (U.  S.  v.  Hodson, 
10  Wall.,  395,  408.) 

In  a  case  where  the  statute  specified  the  pre- 
cise form  of  the  bond  to  be  given  by  certain 
public  officers  (sec.  2619,  R.  S.),  and  certain 
words  prescribed  by  the  statutory  form  were 
omitted  in  the  bond  furnished,  held  that  "the 
statute  authorizing  the  execution  of  the  bond 
is  a  directory  one,"  and  that  '"the  omission  of 
the  words  as  stated  does  not  impair  the  valid- 
ity" of  the  bond,  but  that  the  bond  is  a  valid 
one,  "either  under  the  statute  or  at  common 
law."     (18  Op.  Atty.  Gen.,  458.) 

When  the  legal  effect  of  an  official  bond  is 
questionable,  it  should  be  rejected.  (9  Op. 
Atty.  Gen.,  263.) 

For  other  cases,  see  below,  "VII.  Condition 
of  Bond." 

Alteration  of  bond. —  If  any  material 
change  is  made  in  a  bond  subsequent  to  its  exe- 
cution, the  instrument  is  thereby  rendered 
void,  unless  it  can  clearly  be  shown  that  after 
the  change  the  parties  assented  to  it  and  still 
acknowledge  the  signing  and  sealing  to  be  their 
act.     (17  Op.  Atty.  Gen.,  285.) 

"A  party  who  claims  under  an  instrument 
which  appears  on  its  face  to  have  been  altered, 
is  bound  to  explain  the  alteration;  but  not  so, 
when  the  alteration  is  averred  by  the  opposite 
party,  and  does  not  appear  upon  the  face  of  the 
instrument."     (U.  S.  v.  Linn,  1  How.,  104.) 

An  obligation  to  the  United  States,  duly 
signed  by  the  sureties,  was  presented  to  the 
proper  Government  official  and  rejected  by 
Yam  as  lacking  seals;  it  was  taken  away  by  the 
print  ipal  and  returned  -with  proper  seals.  Held, 
That  it  will  be  presumed,  in  the  absence  of  proof 
to  the  contrary,  that  the  sureties  consented  to 
the  seals  being  attached.  (Moses  v.  U.  S.,  166 
U.  S.,  571.) 

An  erasure  and  interlineation  in  a  bond,  in- 
creasing the  amount  of  the  penalty,  does  not 
invalidate  that  instrument  or  impair  its  legal 
effect  if  in  fact  it  was  made  prior  to  its  execu- 
tion.    (17  Op.  Atty.  Gen.,  285.) 

WTiether  an  instrument  that  was  produced  on 
the  trial  and  had  no  seals  attached  to  it,  had 
had  them  attached  when  the  instrument  was 
originally  executed,  many  years  prior  thereto, 
has  been  held  to  be  a  question  of  fact  which 
should  be  submitted  to  the  jury.  (Moses  v. 
U.  S.,  166U.  S.,  571.) 

After  a  bond  had  been  signed  by  the  obligors, 
the  omission  of  seals  to  the  signers  of  the  instru- 


ment was  noted;  thereupon  one  of  tlie  obligors 
took  a  pen  and  added  scrolls  by  way  of  seals 
to  each  name  subscribed  as  makers  of  the  in- 
strument. Held,  That  "the  adding  of  the 
scroll  by  Linn  to  his  own  name  did  not  vitiate 
the  instrument  as  to  him;  he  had  a  right  to 
add  the  seal,  or  at  least  he  can  have  no  right 
to  set  up  his  own  act  in  tliis  respect  to  avoid 
his  own  deed.  It  was  therefore  his  deed,  and 
the  plea  of  non  est  factum  as  to  him  is  false." 
(U.  S.  r.  Linn,  1  IIow.,  104,  107.) 

Where  a  commissary  general  of  the  Anny 
had  omitted,  through  mistake,  to  sign  his  ofli- 
cial  bond,  but  had  deUvered  it  to  the  proper 
department  signed  only  by  the  sureties,  such 
bond  is  probably  incurably  defective  as  a 
statutory  bond,  though  perhaps  it  may  avail 
as  a  bond  at  common  law.  Advised  that  it  be 
returned  to  be  signed  by  the  officers,  and  at- 
tested specially  in  the  form  prescribed  by  the 
Attorney  General.  This  might  have  the  de- 
sired effect.  At  all  events,  it  would  not  im- 
pair the  obUgation  of  the  bond  as  to  those  who 
signed  it  at  the  proper  time,  whatever  that 
obligation  might  be ;  and  it  would  be  obligatory 
on  the  principal,  at  least  from  the  time  of  its 
execution  by  him,  which  is  all  that  could  be 
effected  by  an  original  bond  now  executed  by 
him.  (5  Op.  Atty.  Gen.,  718;  but  see  above, 
"III.  Date  from  Which  Bond  Takes  Effect.") 

V.  Sufficiency  of  Sureties. 

Certificate  of  snfllciency. — See  above, 
under  "IV.  Form  of  Bond,"  and  see  below, 
"Renewal  of  bonds." 

Married  woman  as  surety. — "  In  case  a 
married  woman  be  offered  as  surety,  an  addi- 
tional certificate  shall  be  required  to  the  effect 
that  such  surety  holds  her  property  in  her  own 
right,  and  is  competent  to  bind  herself  as  surety 
in  such  cases,  under  the  laws  of  the  State  in 
which  she  resides."  (Art.  1-3910,  Naval  In- 
etructions,  1913.) 

In  determining  whether  or  not  a  married 
woman  is  competent  to  contract  as  surety  on  a 
bond,  it  is  first  necessary  to  determine  whether 
the  contract  is  to  be  considered  as  a  contract 
made  in  the  State  where  she  signed  or  in  the 
District  of  Columbia,  as  the  laws  of  the  State 
and  of  the  District  of  Columbia  may  be  dif- 
ferent in  regard  to  the  capacity  of  married 
women  to  make  contracts.  Upon  this  point, 
held  that  the  place  of  contract  must  be  con- 
sidered at  Washington,  D.  C.  Although  the 
bond  was  actually  signed  in  Missouri,  it  was 
there  executed  imperfectly  and  only  with  the 
intention  that  it  should  be  delivered  in  Wash- 
ington and  there  acquire  its  vaUdity.  This 
view  of  contracts  made  elsewhere  and  yet  in- 
tended to  have  force  and  effect  at  Washington 
ia  maintained  in  the  cases  of  Cox  v.  United 
States  (6  Pet.,  172)  and  Duncan  v.  The  United 
States  (7  Pet.,  435).  The  validity  of  her  con- 
tract is  therefore  to  be  decided  by  the  law  pre- 
vailing in  the  District  of  Columbia.  (15  Op. 
Atty.  Gen.,  472,  holding  that,  under  the  laws 
of  the  District  of  Columbia  a  married  woman 
can  not  bind  her  separate  property  as  surety 
on  a  bond.     See  sec.  1155,  D.  C.  Code.) 

A  bond  would  not  be  rendered  invaUd  by 
reason  of  the  fact  that  one  of  the  sureties  was 


484 


The    Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1383. 


the  wife  of  the  principal,  even  if  she  were  not 
competent  to  contract.  It  would  still  be  a 
sufficient  contract  as  against  the  other  surety 
or  sureties  who  might  be  upon  it.  (15  Op. 
Atty.  Gen.,  472.) 

"The  wife  of  a  principal  shall  not  be 
accepted  as  a  surety."  (Art.  1-3907,  Naval 
Instructions,  1913.) 

For  other  cases,  see  below,  "VIII.  Conflict 
of  Laws." 

Surety  induced  to  execute  by  misrepre- 
sentation.— A  bond  perfect  upon  its  face, 
apparently  duly  executed  by  all  whose  namea 
appear  thereto,  purporting  to  be  signed  and 
delivered  and  actually  delivered  without  a 
stipulation,  can  not  be  avoided  by  the  sureties 
upon  the  ground  that  they  signed  it  on  a  condi- 
tion that  it  should  not  be  delivered  unless  it 
was  executed  by  other  persons  who  did  not  exe- 
cute it,  where  it  appears  that  the  obligee  had  no 
notice  of  such  condition  and  there  was  nothing 
to  put  him  upon  inquiry  as  to  the  manner  of  its 
execution,  and  that  he  had  been  induced  upon 
the  faith  of  such  bond  to  act  to  his  own  preju- 
dice.    (Dair  v.  U.  S.,  16  Wall.,  1.) 

In  any  case,  if  the  bond  is  so  written  that  it 
appears  that  several  were  expected  to  sign  it, 
the  obligee  takes  it  with  notice  that  the  obligors 
who  do  sign  it  can  set  up  in  defense  the  want  of 
execution  by  the  others,  if  they  agreed  to  be- 
come bound  only  on  condition  that  the  other 
cosureties  join  in  the  execution.  (Dair  v.  U.  S. , 
16  Wall.,  1,  6;  see  also.  Pawling  v.  U.  S.;  4 
Cranch,  219,  and  Duncan  v.  U.  S.,  7  Pet.,  435, 
448.) 

"A  person  who  signs,  as  surety,  a  printed  form 
of  Government  bond,  already  signed  by  another 
as  principal,  but  the  spaces  in  which  for  names, 
dates,  amounts,  etc.,  remain  blank,  and  who 
then  gives  it  to  the  person  who  has  signed  as 
principal,  in  order  that  he  may  fill  the  blanks 
with  a  sum  agreed  on  between  the  two  parties  as 
the  sum  to  be  put  there,  and  with  the  names  of 
two  sureties  who  shall  each  be  worth  another 
sum  agreed  on,  and  then  have  those  two  persons 
sign  it,  makes  such  person  signing  as  principal 
his  agent  to  fill  up  the  blanks  and  prociu-e  the 
sureties,  and  if  such  person  fraudulently  fill  up 
the  blanks  with  a  larger  sum  than  that  agreed 
on  between  the  two  persons  and  have  the  names 
of  worthless  sureties  inserted,  and  such  sureties 
to  sign  the  bond,  and  the  bond  thus  filled  up 
and  signed  be  delivered  by  the  principal  to  the 
Government,  who  accepts  it  in  the  belief  that  it 
has  been  properly  executed,  the  party  so 
wronged  can  not  on  suit  on  the  bond  again  set 
up  the  private  understandings  which  he  had 
with  the  principal."  (Butler i;.  U.  S.,  21  Wall., 
272;  see  also  Veach  v.  Rice,  131  U.  S.,  293, 
318.) 

Surety  company  as  surety. — The  Secre- 
tary of  the  Navy  has  power,  under  section  1383, 
Revised  Statutes,  to  approve  a  pay  officer's 
bond  in  which  the  sureties  are  corporations,  or  a 
corporation  joined  \\'ith  a  natural  person,  if  he 
deem  such  sureties  sufficient.  (19  Op.  Atty. 
Gen.,  175;  see  also  19  Op.  Atty.  Gen.,  57;  20 
Op.  Atty.  Gen.,  16.) 

The  act  of  August  13,  1894  (28  Stat.,  279), 
authorizing  guaranty  companies  to  become  sure- 
ties on  official  bonds,  is  permissive  only,  and 
where  an  officer  elects  to  furnish  such  suretv  it  is 


for  his  personal  convenience  and  not  for  the  pur- 
pose of  furnishing  better  security  to  the  United 
States.     (13  Comp.  Dec,  375.) 

The  act  of  August  13,  1894  (28  Stat.  279), 
authorizing  the  acceptance  of  bonds  and  under- 
takings of  surety  and  fidelity  companies  does 
not  permit  the  imposition  of  conditions  and 
regulations  by  Government  officials  relative  to 
the  percentage  of  capital  stock  to  liability  on  a 
single  official  bond,  or  the  minimum  rates  to  be 
charged  for  such  insurance,  etc.  (22  Op.  Atty. 
Gen.,  421.) 

If  the  laws  of  a  State  under  wliich  a  surety 
company  is  incorporated  limit  the  amount  of 
liability  to  a  certain  percentage  of  the  capital, 
which  can  be  incurred  on  account  of  any  one 
partnership  or  association,  and  if  a  greater 
amount  of  liability  is  incurred  it  is  to  be  secured 
by  a  collateral  agreement  of  indemnity,  such 
provision  is  thereby  made  a  part  of  its  charter, 
and  to  that  extent  is  it  restricted  in  its  dealings 
with  the  United  States.  (22  Op.  Atty.,  Gen., 
421.) 

The  validity  of  the  bond  or  the  obligation 
of  either  of  the  sureties  is  not  impaired  by  the 
fact  that  one  of  them  (a  surety  company)  has 
not  the  written  authority  of  the  Attorney 
General  to  do  business  as  required  by  the  act 
of  Congress  of  August  13,  1894.  (26  Op.  Atty. 
Gen.,  276.) 

Bonds  of  surety  companies,  executed  in 
States  in  which  they  are  not  licensed,  for 
principals  residing  in  those  States,  or  for  con- 
tracts to  be  performed  therein,  are  valid  and 
enforceable  against  such  companies,  no  matter 
how  flagrant  their  violation  of  the  law  of  the 
State  may  have  been  as  regards  failure  to 
qualify  to  do  business  in  the  State.  (28  Op. 
Atty.  Gen.,  127.) 

The  execution  of  a  bond  by  a  surety  com- 
pany at  its  home  office,  or  outside  of  the  bound- 
aries of  the  State  wherein  it  is  not  licensed,  for 
a  principal  residing  in  such  State  or  for  a  con- 
tract to  be  performed  there,  would  not  be  the 
doing  of  business  by  the  surety  within  the  State. 
(28  Op.  Atty.  Gen.,  127.) 

The  Treasury  Department  should  not  accept 
the  bond  of  a  sm-ety  company  in  a  State  where 
the  company  is  forbidden  by  the  laws  of  the 
State  to  do  business,  notwithstanding  the  com- 
pany may  have  complied  ^vith  the  provisions 
of  section  2  of  the  act  of  August  13,  1894.  (28 
Op.  Atty.  Gen.,  34.) 

The  act  of  August  13,  1894,  requires  the  ap- 
pointment of  a  process  agent  in  the  district 
where  the  principal  resides,  and  also  in  the 
district  where  the  contract  is  to  be  performed. 
(28  Op.  Atty.  Gen.,  34.) 

Surety  companies  may,  under  the  provisions 
of  the  act  of  August  13,  1894,  appoint  process 
agents  in  Porto  Rico  but  not  in  the  Philippine 
Islands.     (27  Op.  Atty.  Gen.,  208.) 

A  surety  company  may  be  accepted  as  surety 
on  the  official  bond  of  an  officer  of  the  Govern- 
ment who  is  to  discharge  his  duties  in  the 
Panama  Canal  Zone,  provided  the  surety  com- 
pany has  appointed  process  agents  in  the 
judicial  district  in  which  the  principal  in  the 
bond  resided  at  the  time  it  was  made  or  guar- 
anteed and  in  the  judicial  district  in  which 
the  office  is  located  to  which  it  is  returnable, 
and  provided  the  company  has  also  complied 


485 


Sec.   1383. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


with  all  other  legal  requirements.  (27  Op. 
Atty.  Gen.,  208.) 

The  Canal  Zone  is  not  within  the  contempla- 
tion of  the  act  of  August  13,  1894,  which  pro- 
vides tluit  surety  cornpanios  doing  business 
out'jide  of  the  States  or  Territories  under  which 
they  are  incorporated  shall  appoint  agents  re- 
siding within  the  juritidiction  of  the  court 
where  such  suretyship  is  to  be  undertaken 
upon  whom  process  may  be  served.  (27  Op. 
Atty.  Gen.,  136.) 

A  surety  company  of  Kansas  City,  Mo., 
ha\'ing  tlie  power  to  guarantee  the  fidelity  of 
persons  holding  positions  of  public  or  private 
trust  and  the  power  to  execute  and  guarantee 
bonds  and  undertakings  injudicial  proceedings, 
possesses  appropriate  corporate  powers  to  en- 
title it  to  certificate  as  a  sole  surety  under  the 
provisions  of  the  acts  of  Congress  of  August 
13,  1894  (28  Stat.,  279),  and  March  23,  1910 
(36  Stat.,  241).     (28  Op.  Atty.  Gen.,  411.) 

Voluntary  bonds  given  by  an  employee  or 
ofhcer  of  the  United  States  to  a  supeiior  officer, 
do  not  come  within  the  pur\'iew  of  the  act  of 
August  13,  1894,  which  prescribes  the  character 
and  qualifications  of  guaranty  companies 
which  may  be  accepted  on  official  bonds  re- 
quired by  law.     (28  Op.  Atty.  Gen.,  28.) 

Renewal  of  bonds. — Every  officer  of  the 
Supply  Corps  "shall  give  a  new  bond,  with  suffi- 
cient surety,  every  four  years,  or  whenever 
required  to  do  so  by  the  Secretary  of  the  Navy; 
and  all  such  bonds  shall  be  examined  every 
two  years  for  the  purpose  of  ascertaining  the 
sufficiency  of  the  surety  thereon."  (Art. 
R-3002,  Navy  Regs.,  1913;  see  sec.  1384,  R.  S., 
and  act  of  Mar.  2,  1895,  see.  5,  28  Stat.,  807.) 

Prior  to  the  actof  March  2, 1895  (28  Stat. ,  807), 
new  or  additional  bonds,  under  certain  con- 
tingencies, such  as  the  death  or  insolvency  of 
the  surety,  etc.,  might  be  and  were  required 
of  public  officers,  and  the  purpose  of  that  act 
was  to  make  general  what  was  theretofore  spo- 
radic and  subject  to  the  discretionary  power  of 
some  Government  department  or  official.  It 
is  believed  that  the  failure  to  give  such  renewal 
at  any  time  would  operate  to  disqualify  the 
defaulting  official  from  exercising  the  office  to 
which  he  had  been  appointed  just  as  the  failure 
to  give  the  bond  required  by  law  on  the  original 
appointment  would  operate.  (13  Comp.  Dec. 
375;  see  below,  "Failure  to  give  new  bond," 
under  "X.  Miscellaneous.") 

' '  As  there  is  no  express  statutory  requirement 
that  the  Paymaster  General  of  the  Navy  give 
a  bond  and  as  the  public  interests  do  not  re- 
quire that  he  furnish  one,  it  is  not  considered 
necessary  to  call  upon  the  present  Paymaster 
General  to  renew  his  last  bond  given  as  a  pay 
director  at  the  expiration  of  the  four-year 
period,  June  22,  1909.  Nothing  in  this  opinion 
should  be  considered  as  applying  to  the  renewal 
of  bonds  of  pay  directors  or  pay  inspectors,  offi- 
cers of  which  rank  while  not  required  l^y  stat- 
ute to  furnish  bond  are  properly  required  by 
the  Department  so  to  do,  for  the  reason  that 
public  funds  may  from  time  to  time  be  placed 
in  their  hands."  (File  26284-94,  May  8,  1909, 
Memo,  of  Solicitor,  Navy  Dept.) 

Where  a  bond  given  by  an  officer  is  objec- 
tionable in  point  of  form,  the  direction  of  his 
official  superior  to  execute  a  new  one  must  be 


considered  as  that  of  the  head  of  the  depart- 
ment, and  the  bond  given  in  compliance  there- 
with can  not  be  considered  as  ha\'ing  been 
e.xtorted  from  the  officer  and  his  sureties  con- 
trary to  statute.     (Soule  v.  U.  S.,  100  U.  S.,  8.) 

For  other  cases,  see  below,  "IX.  Liability 
of  Sureties." 

Biennial  examination  of  official  bonds.— 
The  law  as  it  now  stands  provides  for  the  bien- 
nial examination  of  the  bonds  of  all  pay  officers 
of  the  Navy,  without  providing  adequate  ma- 
chinery for  or  defraying  the  cost  of  such  exam- 
ination. Prior  to  the  act  of  March  2,  1895,  it 
was  the  practice  of  the  Navy  Department  to 
require  pay  officers  to  renew  their  bonds  at  the 
end  of  each  five  years.  By  the  terms  of  the 
present  law  it  is  made  compulsory  to  renew 
them  every  four  years  at  least,  and  to  examine 
them  every  two  years.  The  Secretary  of  the 
Navy  requested  the  Attorney  General's  opinion 
upon  "the  question  of  having  the  necessary 
examination  into  the  character  and  value  of  the 
property  of  the  sureties  on  the  official  bonds 
approved  by  this  Department  made  by  the 
Ignited  States  attorneys  for  the  respective  dis- 
tricts in  which  the  various  bondsmen  reside. 
The  opinion  of  the  Attorney  General,  rendered 
March  30,  1895,  stated:  "I  am  not  advised  of 
any  statute  which  either  requires  or  authorizes 
a  United  States  attorney  to  make  an  examina- 
tion of  the  character  suggested,  and  am  of  the 
opinion  that  he  can  not  be  called  upon  to  render 
any  such  service  to  any  officer  of  the  Navy 
Department  charged  with  the  duty  of  approving 
official  bonds."  (21  Op.  Atty.  Gen.,  154.)  The 
aforesaid  opinion  ha\'ing  rendered  it  impossible 
to  refer  official  bonds  to  the  Department  of 
Justice  for  the  certification  as  to  the  solvency 
of  the  sureties  thereon,  the  Navy  Department 
has  been  constrained  to  adopt  the  only  remain- 
ing available  method  of  making  the  required 
biennial  examinations  of  bonds,  i.  e. ,  to  forward 
to  each  pay  officer  concerned  a  "certificate  of 
sufficiency  of  sureties"  for  execution,  said  cer- 
tificate containing  forms  for  the  justification  of 
the  several  sureties  on  such  officer's  bond,  and 
also  a  form  for  the  certification,  by  a  United 
States  attorney  or  a  judge  or  clerk  of  a  United 
States  court,  to  the  effect  that  he  has  personally 
inquu-ed  into  the  solvency  of  the  sureties  and 
is  satisfied  that  they  are  sufficient  for  an  amoimt 
double  that  of  the  bond.  In  case  the  surety  is 
a  corporation  qualified  to  become  sole  surety 
on  a  bond,  under  the  act  approved  August  13, 
1894,  the  certificate  differs  slightly  in  detail 
from  the  one  just  described.  (Ann.  Rept.  Judge 
Adv.  Gen.  to  the  Sec.  of  the  Navy,  1895;  see 
also  2  Comp.  Dec.,  444,  and  3  Comp.  Dec,  135, 
noted  below,  under  "X.  ]\[iscellaneous  *  *  * 
Expense  of  furnishing  bond.") 

VI.  Approval  op  Bond. 

What  constitutes  approval. — There  is  no 
rule  which  can  be  applied  to  determine  what 
constitutes  the  approval  of  official  bonds. 
Every  case  must  depend  upon  the  laws  direct- 
ing such  an  approval.  The  piupose  for  which 
such  a  bond  is  required  must  be  looked  to. 
The  character  of  the  office  and  its  duties  must 
be  examined.  The  time  within  which  such  a 
bond  must  be  given  and  approved,  and  whether 
it  is  retrospective  or  for  the  future  only,  must 


486 


The  Navy. 


Pt.2.   REVISED  STATUTES. 


Sec.  1383. 


be  considered  before  it  can  be  determined  how 
and  when  the  approval  must  be  made.  (Broome 
V.  U.  S.,  15  How.,  143.) 

The  statute  does  not  require  the  approval  to 
be  in  wi'iting.  It  may  be  so,  or  may  be  done 
verbally;  or  it  may  not  be  done  in  either  way. 
Receiving  the  bond,  and  retaining  it  for  a  con- 
siderable time  ^vithout  objection,  will  be  suffi- 
cient evidence  of  acceptance  to  complete  the 
delivery,  especially  when  the  exception  is 
taken  by  the  party  who  had  done  all  he  could 
to  complete  it.  Presumptive  ex^idence  is  ad- 
missible to  prove  the  approval  and  acceptance 
of  a  bond,  such  as  its  being  in  the  possession  of 
the  obligee,  having  been  retained  without 
objection,  and  the  obligor  continuing  to  act 
under  it  without  ha\T.ng  called  for  a  more  formal 
acceptance.     (Broome  v.  U.  S.,  15  How.,  143.) 

The  law  prescribes  no  form  of  acceptance; 
nor  does  it  even  require  that  the  acceptance 
should  be  evidenced  by  writing.  The  date  of 
acceptance  should  be  indorsed  on  the  bond  for 
the  security  of  the  smreties  bound  in  the  old 
bond;  yet  the  parties  to  the  new  bond  are 
bound  by  the  acceptance  in  fact  of  their  bond, 
and  this  acceptance  may  be  shown  as  any  other 
fact  is  required  to  be.    (4  Op.  Atty.  Gen.,  187.) 

The  receipt  of  the  instrument,  its  indorse- 
ment, its  being  filed  among  the  archives  of  the 
department,  or  its  record,  and  so  forth,  may  be 
invoked  as  evidence  of  its  acceptance  by  the 
officer  authorized  to  require  it.  The  more 
obvious  and  ordinary  mode  of  evidencing  this 
fact,  it  is  true,  is  by  the  signature  of  the  officer 
authorized  to  act;  but  it  is  by  no  means  indis- 

Eensable.  The  abbreviation  employed  by  the 
ead  of  a  department  is  in  legal  contemplation 
his  signature,  if  used  for  that  purpose;  and 
if  in  any  case  it  should  become  material  to 
establish  it  by  evidence,  the  same  testimony 
would  avail  as  would  suffice  to  verify  his  name 
written  out  at  length.  (4  Op.  Atty.  Gen.,  187, 
citing  U.  S.  r.  Dandridge,  12  Wheat.,  64.) 

"The  possession  of  the  original  bond  by  the 
proper  officers  of  the  United  States,  was  prima 
facie  evidence  that  it  had  been  delivered  and 
accepted. "  (U.  S.  v.  Wilkinson,  12  How.,  246, 
253.) 

Power  of  approving  officer. — The  officer 
charged  with  the  approval  of  the  bond  may 
accept  the  sureties  or  reject  them.  He  may 
call  at  any  future  time  for  other  sureties,  if  cir- 
cumstances shall  occur,  or  information  shall  be 
received,  which  make  it  necessaiy  that  the 
United  States  shall  have  a  more  responsible 
security.  Or  he  may  call  for  a  new  bond.  He 
may  decide  upon  the  sufficiency  of  the  sureties 
before  they  have  made  themselves  such,  or 
after  they  have  signed  the  bond.  (Broome  v. 
U.  S.,  15  How.,  143,154.) 

Delegation  by  Secretary  of  power  of 
approval. — " '  The  duty  of  approval  of  all  bonds 
that  have  heretofore  been  transmitted  to  this 
office  for  examination  and  recommendation 
only,  has,  by  order  of  the  Secretary,  devolved 
upon  the  Solicitor  *  *  *."  (Ann.  Rept. 
of  the  Solicitor  to.  the  Sec.  of  the  Navy,  1917, 
p.  8.) 

VII.  Condition  op  Bond. 

Departure  from  statutory  form. — See 
cases  noted  above,  under  "IV.   Form  of  Bond . " 


Binds  officer  as  insurer  of  Government 
funds. — ^^'hen  a  receiver  of  public  money 
binds  himself  in  a  penal  sum  to  perform  the 
duties  of  his  office  without  exception,  he 
' '  makes  himself  an  insurer  by  express  contract " 
of  moneys  coming  into  his  hands .  ' '  There  is  an 
established  difference  between  a  duty  created 
merely  by  law,  and  one  to  which  is  added  the 
obligation  of  an  express  undertaking.  The 
law  does  not  compel  to  impossibilities,  but  it 
is  a  settled  rule  that  if  performance  of  an  ex- 
press engagement  becomes  impossible  by  rea- 
son of  anything  occurring  after  the  contract 
was  made,  though  unforeseen  by  the  contract- 
ing party  and  not  within  his  control,  he  will 
not  be  excused  *  *  *.  If,  as  we  have  seen, 
his  liability  is  to  lie  measured  by  his  bond, 
and  that  binds  him  to  pay  the  money,  then  the 
cause  which  renders  it  impossible  for  him  to 
pay  is  of  no  importance,  for  he  has  assumed  the 
risk  of  it. "  (Boyden  v.  U.  S.,  13  Wall.,  17,  21, 
holding  that  it  is  no  defense  to  an  action  upon 
the  bond  of  a  receiver  of  public  moneys  that 
he  had  been  by  irresistible  force  robbed  of  the 
moneys  sued  for.  See  also  Smythe  v.  U.  S., 
188  U.  S.,  167.) 

The  liability  of  a  public  officer  on  his  bond 
for  moneys  collected  for  the  United  States  and 
not  paid  over,  is  determined  by  his  bond;  and, 
if  the  case  can  be  likened  to  that  of  private  con- 
tracts at  common  law,  it  is  that  of  a  common 
carrier,  to  transmit  them  to  the  Treasury,  in 
doing  which  he  is  not  exonerated  by  ordinary 
diligence,  but  must  answer  for  loss  by  larceny 
and  even  robbery.  (U.  S.  v.  Morgan,  11  How., 
154,  158.  See  also  Smythe  v.  U.  S.,  188  U.  S., 
164.) 

Officers  of  the  Na\'y  are  liable  upon  their 
bonds  for  public  stores  committed  to  their 
charge,  even  though  such  stores  are  destroyed 
by  inevitable  accident.    (4  Op.  Atty.  Gen.,  355.) 

In  an  action  on  the  bond  of  a  paymaster  in  the 
Army  for  not  paj-ing  over  or  accounting  for 
public  money  that  came  into  his  hands,  held, 
no  defense  that,  without  any  want  of  proper 
care  and  ^dgilance  on  the  part  of  the  pajTaaster, 
a  certain  part  of  the  moneys  had  been  stolen 
from  him.  (U.  S.  v.  Dashiel,  4  Wall.,  182;  see 
also  Smj^he  v.  U.  S.,  188  U.  S.,  165.) 

"By  his  bond  he  had  insured  the  safekeeping 
and  prompt  paj-ment  of  the  public  money 
which  came  to  his  hands.  His  obligation  was 
therefore  no  less  stringent  than  that  of  a  common 
carrier,  and  in  some  respects  it  was  greater." 
(Be vans  v.  U.  S.,  13  Wall.,  56,  60;  see  also 
Sm>i.he  v.  U.  S.,  188  U.  S.,  168.) 

Held,  no  defense  to  an  action  on  the  bond 
of  a  receiver  of  public  moneys  that  the  money, 
for  the  nonpajanent  of  which  the  United 
States  sued,  had  been  feloniously  stolen,  taken 
and  carried  away  from  his  posses.sion  by  some 
unknown  person  or  persons,  without  fault  or 
negUgence  on  his  part.  (U.  S.  v.  Prescott, 
3  How.,  578,  587:  see  also  Smythe  v.  U.  S.,  188 
U.  S.,  163.) 

Does  not  bind  officer  for  losses  due  to 
overruling  necessity  or  the  pubhc 
enemy. — "No  rule  of  public  policy  requires 
an  officer  to  account  for  moneys  wnic>h  have 
been  destroyed  by  an  oA^erruling  necessity 
or  taken  from  him  by  a  public  enemy,  without 
any  fault  or  neglect  on  his  part."-     (U.  S.  v. 


487 


Sec.   1383. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Thomas,  15  Wall.,  337;  see  also  Smythe  v.  U. 
S.,  188  U.  S.,  168.) 

An  action  was  brought  on  the  bond  of  a  sur- 
veyor of  customs  at  NashA-ille,  he  being  also  a 
depositary  of'public  moneys  at  that  fity.  The 
special  defense  was  that  the  moneys  in  question 
were  seized  bv  the  Confederate  authorities, 
against  the  will  and  consent  of  the  surveyor 
and  by  the  exercise  of  force  which  he  was 
unable"  to  resist,  being  a  loyal  citizen  and  en- 
deavoring faithfully  to  perform  his  duty. 
Held,  That  the  act  of  a  public  enemy,  in  forcibly 
seizing  or  destro>dng  property  of  the  Govern- 
ment in  the  hands  of  a  puldic  officer,  against 
his  will,  and  without  his  fault,  is  a  discharge 
of  his  obligation  to  keep  such  property  safely, 
and  of  his  official  bond,  given  to  secure  the 
faithful  performance  of  that  duty  and  to  have 
the  property  forthcoming  when  required.  (U. 
S.  V.  Thomas,  15  Wall.,  337;  see  also  Smythe 
V.  U.  S.,  188  U.  S.,  168.) 

"The  Thomas  case  does  not  materially 
modify  the  decisions  in  pre^dous  cases.  The 
general  rule  announced  in  these  cases  *  *  * 
is  that  the  obligations  of  a  public  officer,  who 
received  pubUc  moneys  under  a  bond  con- 
ditioned that  he  would  discharge  his  duties 
according  to  law,  and  safely  keep  such  moneys 
as  came  to  his  hands,  by  virtue  of  his  office, 
are  not  to  be  determined  by  the  principles 
of  the  law  of  bailment,  but  by  the  special 
contract  evidenced  by  his  bond  conditioned  as 
above  stated;  consequently,  it  is  no  defense  to 
a  suit  brought  by  the  Government  upon  such 
a  bond  that  the  moneys,  which  were  in  the 
custody  of  the  officer,  had  been  destroyed  by 
lire  occurring  without  his  fault  or  negligence. 
This  rule,  so  far  from  being  modified  by  the 
Thomas  case,  is  reaffirmed  by  it,  subject,  how- 
ever, to  the  exception  (which,  indeed,  some 
of  the  prior  cases  had  in  effect  intimated),  that 
it  was  a  vaUd  defense  that  the  failure  of  the 
officer  to  account  for  public  moneys  was  attribu- 
table to  overruling  necessity  or  to  the  public 
enemy.  The  case  now  before  us  [loss  by  fire 
without  negligence]  is  not  embraced  by  either 
exception.  The  result  is  that  the  special  de- 
fense here  made  can  not,  in  view  of  former  adju- 
dications, avail  the  superintendent  or  his  sure- 
ties."    (Smythe _i;.  U.  S.,  188  U.  S.,  15fi,  170.) 

"WTiere  a  receiver  of  public  moneys  has  such 
moneys  in  his  hands,  which  would  rot  have 
been  in  his  hands  at  all,  if  he  had  paid  them 
over  with  the  promptness  that  the  acts  of  Con- 
gress and  the  Treasury  regulations  made  in 
pursuance  of  them,  prescribing  the  duties  of 
receivers,  in  this  respect  made  it  his  duty  to  do, 
and  which  therefore — ^inasmuch  as  the  duties  of 
receivers  mider  their  official  bonds  are  defined 
by  those  acts  and  Treasury  regulations — it  was 
also  his  duty  under  his  official  bond  to  do — 
evidence  that  the  moneys  were  forcibly  taken 
from  him  by  the  agents  of  the  so-called  'Con- 
federate States,'  usurping  the  authority  of  the 
rightful  government,  and  compelling  obedience 
to  itself  exclusively  throughout  the  State  in 
which  the  receiver  was,  held  to  have  been 
rightly  refused  in  a  suit  by  the  Government 
on  the  official  bond  of  such  receiver,  as  short  of 
meeting  the  necessity  of  the  case;  it  haAdng 
been  omng  to  the  default  of  the  receiver  in  not 
paying  over  promptly  and  at  the  right  times,  that 


the  moneys  were  exposed  to  seizure  at  all  by 
the  rebel  usurping  government."  (Bevans  v. 
U.  S.,  13  Wall.,  5G.) 

In  accordance  with  a  Confederate  statute  a 
postmaster  in  North  Carolina  paid  Government 
moneys  in  his  hands  over  to  a  party  claiming 
against  the  United  States:  Held,  That  he  was 
responsible  on  his  bond  for  the  moneys  so  paid. 
"We  cannot  concede  that  a  man  who,  as  a 
citizen,  owes  allegiance  to  the  United  States, 
and,  as  an  officer  of  the  Government  holds  its 
money  or  property,  is  at  liberty  to  turn  over  the 
latter  to  an  insurrectionary  government  wdiich 
only  demands  it  by  ordinances  and  drafts 
dra\^ni  on  the  bailee,  but  which  exercises  no 
force  or  threat  of  personal  violence  to  himself  or 
property  in  the  enforcement  of  its  illegal  orders. ' ' 
In  tliis  case  it  was  not  proved  that  the  post- 
master would  have  suffered  any  inconvenience 
or  been  punished  by  the  Confederate  authori- 
ties if  he  had  refused  to  pay  the  draft  of  the 
insurrectionarv  post  office  department  on  him. 
(U.  S.  V.  Keehler,  9  Wall.,  83;  see  also  Smvthe 
r.  U.  S.,  188U.  S.,  165.) 

Officer  may  be  relieved  from  liability 
for  losses  for  which  he  is  responsible 
under  the  terms  of  his  bond. — By  the 
Judicial  Code  (act  Mar.  3,  1911,  sees.  145,  147, 
36  Stat.,  1136,  1137),  it  is  proAided  that  the 
Court  of  Claims  shall  have  jurisdiction  to  relieve 
any  disbursiiig  officer  of  responsibility  on  ac- 
count of  loss,  by  capture  or  otherwise 'while  in 
the  line  of  his  duty,  of  Government  funds, 
vouchers,  records,  or  papers  in  his  charge,  where 
such  loss  occurred  without  fault  or  negligence 
on  the  part  of  the  officer,  but  he  has  been  held 
responsible  therefor. 

By  act  of  July  11,  1919  (41  Stat.,  132),  the 
accounting  officers  are  required  to  relieve  any 
disbursing  officer  of  the  Navy  of  responsibility 
for  lo.ss  or  deficiency  of  Government  funds, 
when  determined  by  the  Secretary  of  the  Navy 
that  the  officer  was  not  guilty  of  fault  or  negli- 
gence and  was  in  the  line  of  his  duty.  The 
same  act  ("41  Stat.,  153)  contained  similar  pro- 
visions \\ath  respect  to  unauthorized  pajinents 
made  during  the  "present  emergency"  under 
military  necessity  or  as  the  result  of  accidental 
circumstances  for  which  the  officer  was  not 
responsible. 

In  cases  of  hardship  not  covered  by  statute 
relief  must  be  sought  from  Congress.  The  court 
is  not  authorized  to  make  other  exceptions  than 
those  made  by  the  statute.  (U.  S.  v.  Keehler, 
9  Wall.,  83,  89.) 

Condition  of  bond  is  prospective;  does 
not  cover  past  transactions. — The  condi- 
tion of  the  bond  was  prospective,  and  fraud  in 
respect  to  past  transactions,  not  within  the  con- 
dition, could  not  render  the  instrument  void 
prospectively.     (U.  S.  v.  Boyd,  5  How.,  29.) 

The  condition  of  a  bond  can  not,  by  implica- 
tion, be  held  retrospective,  and  to  cover  all 
defaults  of  the  officer  from  the  date  of  his  com- 
mission, merely  because  it  recites  the  date  from 
which  he  had  been  appointed.  The  court  is 
precluded  by  the  authorities  from  maintaining 
that  the  sureties  are  liable  by  impUcation,  con- 
trary to  the  plain  prospective  obUgation  of  the 
bond,  "that  the  said  Boyd  shall  faithfully 
execute  and  discharge  the  duties  of  his  office." 
If  intended  to  cover  past  derelictions,  the  bond 


488 


The  Navy, 


Pt.2.  REVISED  STATUTES. 


Sec.   1383. 


should  have  been  made  retrospective  in  its 
language.  (U.  S.  v.  Boyd,  15  Pet.,  187,  208; 
Farrar  v.  U.  S.,  5  Pet..  374,  389.) 

For  other  cases,  see  above,  "III.  Date  from 
which  Bond  takes  Effect." 

Binds  oflScer  as  long  as  he  remains  in 
office. — "Bondsof  officers  of  the  United  States, 
given  for  the  faithful  discharge  of  their  duties, 
which  are  not  in  terms  limited  to  a  specified 
period  expressed  in  dates,  remain  in  force  so 
long  as  such  officers  continue  in  office,  even 
though  another  and  different  bond  be  given  by 
way  of  renewal.''     (26  Op.Atty.  Gen.,  70.)  _ 

"A  provision  in  an  official  bond,  shortening 
the  life  of  the  bond  from  the  entire  period  dur- 
ing which  the  office  is  held  until  such  time  as  'a 
new  official  bond  shall  be  accepted  by  the 
proper  authority  and  substituted '  therefor,  runs 
counter  to  the  statute  and  would  be  without 
effect.  In  its  other  particulars,  the  bond  would 
be  good."  (26  Op.  Atty.  Gen.,  70.  See  above, 
"Departure  from  statutory  form,"  under  "IV. 
Form  of  Bond.") 

Although  the  limitation  is  intended  "to 
overcome  the  embarrassing  effect  of  existing 
law,  under  which  renewal  bonds  do  not  operate 
as  a  discharge  of  the  bonds  theretofore  given, ' '  it 
is  nevertheless  unauthorized.  Heads  of  de- 
partments are  given  wide  latitude  in  the  con- 
duct of  their  departments  by  section  161,  Re- 
vised Statutes,  the  only  restriction  contained  in 
that  section  being  that  they  shall  not  prescribe 
regulations  inconsistent  with  law.  However, 
such  an  attempt  to  surrender  the  legal  rights  of 
the  Government  as  is  contemplated  by  the  pro- 
posed limitation  upon  the  duration  of  official 
bonds  is  so  ^dtal  as  to  be  clearly  within  that  re- 
striction, and  can  not,  therefore,  be  of  any  legal 
effect.     (26  Op.  Atty.  Gen.,  70.) 

In  view  of  section  1385,  Revised  Statutes,  it 
becomes  a  serious  question  whether  or  not  a 
bond  given  as  assistant  paymaster  would  not  be 
binding  upon  the  sureties  as  long  as  the  officer 
remained  in  the  Pay  Corps  of  the  Navy,  even 
after  his  promotion  to  passed  assistant  and  to 
full  paymaster.  It  is  to  be  presumed  that  this 
condition  of  affairs  is  not  desired,  and  it  would 
seem  necessary  that  some  provision  be  made  in 
the  form  of  bond  which  would  obviate  the  legal 
effect  of  section  1385.  (10  Comp.  Dec,  44;  but 
see  26  Op.  Atty.  Gen.,  70,  noted  above.) 

The  bond  of  an  officer  of  the  Supply  Corps 
in  the  lower  grade  continues  binding  "until 
his  new  bond  in  the  higher  grade  is  approved." 
(Art.  R.-4418,  Navy  Regs.,  1913,  as  amended 
by  C.  N.  R.  7,  Sept.  15,  1916;  see  sec.  1385, 
R.  S.) 

For  other  cases,  see  below,  "Where  new  bond 
is  given,"   under  "IX.  Liability  of  Sureties, 
and   "Amount  of  bond,"  under  "X.  Miscel- 
aneous." 

Binds  officer  for  faithful  disbursement  of 
public  moneys,  whatever  their  amount. — 
"Although  when  the  bond  was  executed  it 
might  not  have  been  supposed  that  the  officer 
would  have  such  large  sums  to  disbiuse,  that 
fact  forms  no  defense  to  an  action  on  the  bond, 
which  was  conditioned  for  the  honest  disburse- 
ment of  the  public  moneys,  whatever  might 
be  their  amoimt."  (Moses  v.  U.  S.,  166  U.  S., 
571,  592.) 


Binds  officer  for  faithful  performance  of 
duties  imposed  by  subsequent  laws. — 
"The  bond  of  a  receiver  of  public  money  is 
given  to  insure  the  performance  of  all  of  his 
duties,  and  those  duties  are  defined  by  the  acts 
of  Congress  and  by  Treasury  regulations  made 
under  the  acts."  (Bevans  v.  U.  S.,  13  Wall., 
56,  61.) 

' '  The  official  bond  of  parties  covers  not  merely 
duties  imposed  by  existing  law,  but  duties  be- 
longing to  and  naturally  connected  with  their 
offices  or  business  imposed  by  subsequent  law, 
but  the  new  duties  must  have  some  relation  to 
or  connection  with  such  office  or  business,  and 
not  be  disconnected  from  and  foreign  to  both." 
(U.  S.  V.  Singer,  15  Wall.,  111.) 

^^^lere  the  condition  of  the  bond  is  that  the 
party  shall  in  all  respects  faithfully  comply 
with  all  the  provisions  of  law  in  relation  to  the 
duties  upon  which  he  is  engaged,  this  signifies 
an  intention  to  stipulate  that  the  principal  in 
the  bond  should  comply  with  duties  subse- 
quently Imposed  by  law.  Both  parties,  it 
must  be  assumed,  knew  that  Congress  might,  at 
any  time,  enact  new  provisions  imposing  new 
duties  or  varying  those  already  imposed;  and 
the  defendants  must  have  understood  that  it 
never  could  have  been  intended  that  a  new 
bond  should  be  required  with  every  modifica- 
tion made  in  relation  to  the  existing  duties. 
(IT.  S.  t'.  Powell,  14  Wall.,  493.) 

Bonds  of  public  officers  are  required  to  secure 
the  faithful  discharge  of  the  duties  ordinarily 
imposed  upon  the  principal  obligor,  without 
reference  to  the  time  when  the  law  was  passed 
imposing  the  duties,  and  where  the  language 
of  the  bond  is  sufficiently  comprehensive  to 
embrace  duties  subsequently  imposed  of  a  char- 
acter corresponding  with  those  required  at  the 
date  of  the  bond ,  the  construction  which  gives 
a  prospective,  as  well  as  a  retrospective,  oper- 
ation to  the  condition  of  the  bond  may  well  be 
adopted  as  both  reasonable  and  just  to  all  con- 
cerned.    (U.  S.  V.  Powell,  14  Wall.,  493.) 

The  Navy  Department,  in  requiring  the  prin- 
cipal in  the  bond  to  perform  duties  which  would 
have  been  performed  by  an  officer  of  a  different 
character  if  there  had  been  such  an  officer  at 
the  navy  yard,  did  not  thereby  require  of  him 
the  performance  of  duties  against  defaults  in 
which  his  sureties  had  not  undertaken  to  pro- 
tect the  Government.  (Strong  v.  U.  S.,  6 
Wall.,  788.) 

Does  not  cover  duties  imposed  by  sub- 
sequent laws,  in  certain  cases.— Excep- 
tional cases  may  doubtless  arise,  as  where  the 
condition  of  the  bond  is  in  terms,  or  by  a  fair 
and  reasonable  construction,  limited  to  existing 
duties,  or  where  the  appointment  is  a  tempo- 
rary one  to  expire  at  the  end  of  the  next  session 
of  the  Senate.  Different  rules  are  applied  in 
the  case  of  a  temporary  appointment,  as  the 
commission  is  for  a  different  tenure,  and  imless 
there  is  something  in  the  act  under  which  the 
first  commission  issued,  showing  that  it  con- 
templated a  permanent  and  continuing  respon- 
sibility under  laws  subsequently  passed,  the 
rule  is  that  the  liability  of  sureties  must  be 
strictly  confined  to  the  duties  created  by  the 
acts  passed  antecedent  to  the  date  of  the  bond. 
(U.  S.  V.  Powell,  14  Wall.,  493,  502.) 


489 


Sec.  1383. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


A  bond  given  by  an  officer  under  a  recess 
appointment  of  the  President,  and  who  is  sub- 
sequently appointed  by  the  President  with  the 
advice  and  consent  of  the  Senate,  is  to  be  re- 
stricted to  the  duties  and  obligations  created 
by  the  statutes  passed  antecedently  to  the  date 
of  the  bond.  (U.  S.  v.  Kirkpatrick,  9  ^V^leat., 
720.) 

It  must  be  admitted  that  any  substantial 
addition  by  law  to  the  duties  of  the  obligor  of 
a  bond,  after  the  execution  of  the  instrument, 
materially  enlarging  his  liabilities,  will  not 
impose  any  additional  responsibility  upon  his 
.sureties  unless  the  words  of  the  bond,  by  a  fair 
and  reasonable  construction,  bring  such  subse- 
quently imposed  duties  within  its  provisions. 
(U.  S.  V.  Powell,  14  Wall.,  501.) 

'"If,  after  an  official  bond  has  been  signed, 
the  nature«of  the  office  be  changed  by  law,  the 
bond  ceases  to  be  obligatory.  In  such  a  case 
the  office  is  no  longer  the  same,  within  the 
meaning  of  the  bond."  (Gaussen  v.  U.  S.,  97 
U.S.,  584, 592;  Converse?;.  U.  S.,  21  How.,  463.) 

"Where  bonds  were  given  by  pay  officers  of 
the  Army  for  the  performance  of  particular 
duties  specified  therein,  it  is  manifest  that  such 
bonds  have  no  effect  in  securing  the  perform- 
ance of  any  other  duties  than  those  to  which 
they  expressly  point;  because  this  would  be  to 
vary  the  contract  of  the  sureties  without  their 
consent.  The  duties  contemplated  in  future 
for  the  paymasters,  being  variant  Irom  those  to 
which  their  bonds  are  adapted,  will  be  no 
longer  secured  by  those  bonds;  and  it  conse- 
quently becomes  requisite  that  new  bonds 
should  be  given  in  every  case  in  which  new 
and  different  duties  are  to  be  performed. 
(5  Op.  Atty.  Gen.,  733.) 

Public  officers  ought  to  give  new  bonds  with 
sureties  when  required  to  exercise  additional 
duties  (3  Op.  Atty.  Gen.,  575);  are  required  to 
give  new  bonds  with  sureties,  conditioned  for 
the  performance  of  the  new  duties  required  by 
a  subsequent  law,  as  well  as  those  before  re- 
quired (3  Op.  Atty.  Gen.,  584);  are  not  required 
to  give  bonds  in  a  larger  amount  than  before, 
unless  it  shall  be  deemed  necessary  by  the 
proper  officers  of  the  department;  but  they  are 
required  to  give  new  bonds  with  new  condi- 
tions, embracing  the  new  duties  devolved  upon 
them  as  well  as  those  pre\'it)usly  required  (3  Op. 
Atty.  Gen.,  586) ;  if  the  proper  department  shall 
deem  it  expedient,  it  may,  in  lieu  of  a  new  bond 
embracing  all  the  duties  of  the  officer,  take  a 
new  bond  in  a  suitable  penalty  embracing  the 
new  duties  onlv,  leavins  the  old  one  outstand- 
ing (3  Op.  Attv.  Gen.,  600;  see  al8o3  Op.  Atty. 
Gen.,  610). 

The  addition  of  duties  different  in  their  na- 
ture from  those  which  belonged  to  the  office 
when  the  official  bond  was  given  will  not  im- 
pose upim  the  obligor  in  the  bond  as  such  addi- 
tional responsibilities,  but  such  an  addition  of 
now  duties  does  not  render  void  the  bond  of  the 
officer  as  a  security  for  the  performance  of  the 
duties  at  first  assumed.  It  will  still  remain  a 
security  for  what  it  was  originally  given  to  se- 
cure.    (Gaussen  v.  U.  S.,  97  U.  S.,  584,  590.) 

A  collector  of  internal  revtmue,  directed  to 
act  as  disbursing  agent,  must  give  bond  as  such 
in  addition  to  his  bond  as  collector;  liis  ac- 
counts in  the  two  capacities  are  kept  in  separate 


books  at  the  Treasury.     (Hall  v.  V.  S.,  17  Ct. 
Cls.   39.) 

The  reimbursement  to  the  United  States  of 
moneys  paid  by  them  to  their  own  officers  or 
agents  in  pursuance  of  a  law  in  existence  when 
tiie  bond  was  executed,  is  not  a  duty  so  con- 
nected with  or  naturally  belonging  to  the  busi- 
ness of  the  principal  as  to  bo  within  the  reasona- 
ble contemplation  of  the  parties  to  the  bond  at 
the  time  of  its  execution.  "It  would  be  ex- 
tending the  liabilities  of  obligors  on  such  bonds 
beyond  principle  and  precedent  to  hold  them 
responsible  for  the  reimbursement  of  moneys 
paid  by  Government  to  its  own  officers  or 
agents,  because,  subsequent  to  their  payment. 
Government  declares  that  such  reimbursement 
shall  be  made."  (U.  S.  v.  Singer,  15  Wall., 
111.) 

VIII.  Conflict  of  Laws. 

Local  law  of  a  particular  State  can  not 
affect  the  contract. — An  official  bond,  given 
in  pursuance  of  a  law  of  the  United  States,  is 
not  to  be  governed  by  the  laws  of  the  State  in 
which  it  was  signed,  but  must  be  considered  as 
having  been  executed  at  the  seat  of  the  Gov- 
ernment of  the  United  States  and  to  be  gov- 
erned by  the  principles  of  the  common  law. 
(Duncan  y.  U.  S.,  7  Pet.,  435.) 

"Tliis  is  an  official  bond,  and  was  given  in 
pursuance  of  a  law  of  the  United  States.  By 
this  law,  the  conditions  of  the  bond  were  fixed, 
and  also  the  manner  in  wliich  its  obligations 
should  be  enforced.  It  was  delivered  to  the 
Treasury  Department  at  Washington,  and  to  the 
Treasury  did  the  payma.'^ter  and  his  sureties 
become  bound  to  pay  any  moneys  in  his  hands. 
These  powers,  exercised  by  the  Federal  Gov- 
ernment, can  not  be  questioned.  It  has  the 
power  of  prescribing,  under  its  own  laws,  what 
kind  of  security  shall  be  given  by  its  agents  for 
a  faithful  discharge  of  their  public  duties.  And 
in  such  cases,  the  local  law  cannot  affect  the 
contract;  as  it  is  made  with  the  Government, 
and  in  contemplation  of  law,  at  the  place  where 
its  principal  powers  are  exercised.  (Duncan 
V.  U.  S.,  7  Pet.,  435.) 

Liability  of  parties  governed  by  rules  of 
common  law. — The  general  rule  of  law  is  well 
settled  that  the  law  of  the  place  where  the  con- 
tract is  made,  and  not  where  the  action  is 
brought,  is  to  govern  in  enforcing  and  expound- 
ing the_  contract,  unless  the  parties  have  a 
\'iew  to  its  being  executed  elsewhere,  in  which 
case  it  is  to  be  governed  according  to  the  law 
of  the  place  where  it  is  to  be  executed.  Al- 
though the  official  bond  of  a  naval  officer  was 
signed  at  New  Orleans,  it  is  very  clear  that  the 
obligation  imposed  upon  the  parties  thereby 
looked  for  its  execution  to  the  city  of  Washing- 
ton. It  is  immaterial  where  the  services  of  the 
officer  were  to  be  performed;  his  accounta- 
bility for  nonperformance  was  to  be  at  the  seat 
of  government;  he  was  bound  to  account,  and 
the  sureties  undertook  that  he  should  account, 
for  all  public  moneys  received  by  him  with 
such  officers  of  the  Government  of  the  United 
States  as  are  duly  authorized  to  settle  and 
adjust  his  accounts.  The  bond  was  given  with 
reference  to  the  laws  of  the  United  States  on 
that  subject,  and  such  accounting  is  required 
to  be  with  the  Treasury  Department  at  the  seat 


490 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1383. 


of  government;  the  officer  is  bound  by  the 
terms  of  the  bond  to  pay  over  such  sums  as 
may  be  found  due  to  the  Uiuted  States  on  such 
settlement,  and  such  pajdng  o^'er  must  be  to 
the  Treasury  Department  or  in  such  manner  as 
shall  be  directed  by  the  Secretary'.  The  bond 
is  therefore,  in  every  point  of  view  in  which 
it  can  be  considered,  a  contract  to  be  executed 
at  Washington;  and  the  liability  of  the  parties 
must  be  governed  by  the  rules  of  the  common 
law.  (t"ox  V.  U.  S.,  6  Pet.,  172;  see  also 
Pritchard  v.  Norton,  106  U.  S.,  124,  139.) 

Construction  of  bond  governed  by  deci- 
sions of  Federal  courts. — "A  bond  given  in 
piu-suance  of  a  law  of  the  United  States  is  gov- 
erned, as  to  its  construction,  not  by  the  local 
law  of  a  particular  State,  but  by  the  principles 
of  law  as  determined  by  this  court,  and  opera- 
tive throughout  the  courts  of  the  United  States." 
(TuUock  V.  Mulvane,  184  U.  S.,  497,  514.) 

Competency  of  married  "woman  as 
surety  depends  upon  law  prevailing  in 
District  of  Columbia.^See  15  Op.  Atty. 
Gen.,  472,  cited  above  under  "V.  Sufficiency 
of  Sureties." 

IX.  LiABrLiTY  OF  Sureties. 

In  general. — "Nothing  is  plainer  than  the 
rule  that  a  surety  in  a  bond  is  liable  to  the  same 
extent  to  which  his  principal  is  Liable,  by  force 
of  the  bond."  (Gaussen  v.  U.  S.,  97  U.  S., 
584,  590.) 

All  the  pro\ision3  of  the  statutes  regulating 
the  institution  of  suits  and  the  recovery  by 
judgment  of  unpaid  balances  from  delinquent 
officers,  are  as  much  a  part  of  their  bonds  as  if 
they  were  recited  in  them;  and  officers  and 
their  securities  are,  in  contemplation  of  law, 
apprised  of  those  provisions  when  their  bonds 
are  executed.    (U.  S.  v.  Hawkins,  10  Pet.,  125.) 

"The  Government  is  not  responsible  for  the 
laches  or  the  wrongful  acts  of  its  officers 
*  *  *.  Every  sui-ety  upon  an  official  bond 
to  the  Government  is  presumed  to  enter  into 
his  contract  with  a  full  knowledge  of  this 
principle  of  law,  and  to  consent  to  be  dealt  with 
accordingly.  The  Government  enters  into  no 
contract  with  them  that  its  officers  shall  per- 
form their  duties.  A  government  may  be  a 
loser  by  the  negUgence  of  its  officers,  but  it 
never  becomes  bound  to  others  for  the  conse- 
quences of  such  negUgence,  unless  it  be  by  ex- 
press agreement  to  that  effect."  (Hart  v. 
U.  S.,  95  U.  S.,  316.) 

Strictissimi  juris. — "The  obligation  of  the 
surety  is  strictissimi  jiu-is,  and  he  can  not  be 
called  upon  to  pay  more  than  the  penalty  of  his 
bond."     (Leggetti;.  Humphreys,  21  How.^  66.) 

It  is  perfectly  clear  as  to  the  sureties  m  an 
official  bond  that  a  judgment  cannot  be  ren- 
dered beyond  the  penalty,  to  be  discharged  on 
payment"  of  what  is  due,  which  of  course  can 
only  be,  where  it  is  less  than  the  penalty. 
(Farrar  v.  U.  S.,  5  Pet.,  373.) 

"The  liability  of  a  surety  is  not  to  extend,  by 
implication,  beyond  the  terms  of  his  contract; 
this  undertaking  is  to  receive  a  strict  inter- 
pretation, and  not  to  extend  beyond  the  fair 
scope  of  its  terms."  (U.  S.  v.  Bovd,  15  Pet., 
187;  Miller  v.  Stewart,  9  ^Vheat.,  702.) 

"Nothing  can  be  clearer,  both  upon  principle 
and  authority,  than  the  doctrine  that  the  lia- 

54641°— 22 32  491 


bility  of  a  surety  is  not  to  be  extended  by  impli- 
cation beyond  the  terms  of  his  contract.  To 
the  extent  and  in  the  manner  and  under  the  cir- 
cumstances pointed  out  in  his  obligation,  he  is 
bound,  and  no  further.  It  is  not  sufficient  that 
he  may  sustain  no  injury  by  a  change  in  the 
contract,  or  that  it  may  even  be  for  his  benefit. 
He  has  a  right  to  stand  upon  the  very  terms  of 
his  contract ;  and  if  he  does  not  assent  to  any 
variation  of  it,  and  a  variation  is  made,  it  is 
fatal.  And  courts  of  equity,  as  well  as  of  law, 
have  been  in  the  constant  habit  of  scanning  the 
contracts  of  siu-eties  with  considerable  strict- 
ness. *  *  *  The  undertaking  of  the  surety 
is  to  receive  a  strict  inter])retation,  and  is  not 
to  be  extended  beyond  the  fair  scope  of  its 
terms."  (Miilert'.  Stewart,  9  Wheat.,  680,  702.) 

Money  received  prior  to  giving  bond. — 
"It  matters  not  at  what  time  the  moneys  had 
been  received,  if,  after  the  appointment,  they 
were  held  by  the  officer  in  trust  for  the  United 
States,  and  so  continued  to  be  held,  at  and  after 
the  date  of  the  bond."  (U.  S.  v.  Boyd,  15  Pet., 
187,  207.) 

If  an  officer,  before  the  date  of  his  official 
bond,  receive  money  belonging  to  the  United 
States  with  orders  from  the  Comptroller  to  pay 
it  into  a  United  States  depository,  which  he 
neglects  to  do,  the  sureties  on  his  official  bond, 
executed  afterwards,  are  not  liable  therefor 
upon  the  bond,  although  the  money  remain  in 
the  officer's  hands  after  the  execution  of  the 
bond.  (U.  S.  V.  Giles,  9  Cranch,  212;  see  also 
Farrar  r.U.  S.,  5  Pet.,  373.) 

Money  falsely  claimed  by  principal  to  be 
in  his  hands. — The  sureties  are  responsible  for 
all  the  public  moneys  which  were  in  the  hands 
of  their  principal  at  the  date  of  the  bond,  or  that 
may  have  come  into  them  afterwards,  and  not 
properly  accounted  for;  but  not  for  moneys 
which  the  officer  may  choose  falsely  to  admit 
in  his  hands  in  his  accounts  with  the  Govern- 
ment.    (U.  S.  V.  Boyd,  5  How.,  29,  50.) 

The  sureties  can  not  be  concluded  by  a 
fabricated  account  of  their  principal  with  his 
creditors;  they  may  always  inquire  into  the 
reaUty  and  truth  of  the  transaction  existing 
between  them.     (U.  S.  v.  Boyd,  5  How.,  29.) 

The  returns  of  the  receiver  to  the  Treasury 
Department  are  not  conclusive  evidence  in  an 
action  by  the  Govenmient  against  the  sureties 
upon  the  receiver's  bond.  If  the  sums  of 
money  stated  in  such  returns  were  not  actually 
in  the  hands  of  the  receiver,  the  sureties  are 
allowed  to  show  how  the  fact  was.  (U.  S.  v. 
Boyd,  5  How.,  29.) 

In  United  States  v.  Boyd  (5  How.,  29),  the 
receipts  which  had  been  returped  to  the 
Treasiuy  Department,  upon  which  the  in- 
debtedness was  found,  and  which  had  been 
given  on  entries  of  public  lands  without 
exacting  the  money,  in  fraud  of  the  Go\'ern- 
ment,  were  all  given  before  the  execution  of 
the  official  bond,  upon  which  the  suit  was 
brought.  The  svueties  were  not,  therefore, 
responsible  for  the  fraud;  and  it  was  these 
transactions  on  the  part  of  the  receiver,  which 
had  transpired  anterior  to  the  time  when  the 
sureties  became  answerable  for  the  faithful 
execution  of  his  duties,  in  respect  to  which  it 
was  held  that  they  could  not  be  estopped  by 
his  returns  to  the  Government.     No  part  of 


Sec.  1383. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


them  fell  ^\•itllin  the  time  covered  by  the  official 
bond.     (U.  S.  V.  Girault,  11  How.,  22.) 

In  this  case  the  defense  is  attempted  that 
the  receiver  never  had  received  money  which 
he  admitted  receiving  in  his  returns  to  the 
Treasury  Department.  This  is  not  a  good 
defense,  because  the  sureties  in  the  bond  were 
bound  to  protect  the  United  States  from  the 
commission  of  the  very  fraud  which  they  at- 
tempt to  set  up  as  a  defense.  (U.  S.  v.  Girault, 
11  How.,  22,  distinguishing  U.  S.  v.  Boyd, 
5  How.,  29,  noted  above.) 

Money  received  after  termination,  of 
oflice. — "The  sureties  are  not  res|>oiiHiblo  for 
moneys  placed  by  the  Govemmcnt  in  the 
hands  of  the  principal  after  the  legal  termina- 
tion of  his  onice;  but  they  are  responsible  for 
moneys  which  came  into  his  hands,  while  in 
office,  and  which  he  subsequently  failed  to 
account  for  and  pav  over."  (U.  S.  v.  Nicholl, 
12\Mieat.,  505;  Bryan ;;.  U.  S.,  1  Black,  140, 149.) 

The  liability  of  sureties  upon  the  official  bond 
of  an  officer  is  limited  to  acts  done  by  him 
during  his  term  of  office.  They  are  not  re- 
sponsible for  defaults  committed  in  relation 
to  public  moneys  received  by  him  after  the 
term  for  which  he  was  appointed.  (15  Op. 
Atty.  Gen. ,214.) 

A  surety  in  the  bond  of  a  public  officer  is  en- 
titled to  credit  for  all  payments  made  by  his 
principal  during  the  time  he  remained  in 
office,  and  is  chargeable  only  with  the  moneys 
received  by  him  during  the  same  time  and 
which  he  subsequently  fails  to  account  for  and 
pay  over.     (Bryan  v.  U.  S.,  1  Black.  140.) 

Failure  of  principal  to  account  after 
removal  from  office. — There  may  have  been 
no  breach  of  the  bond  at  the  time  of  his  re- 
moval from  office,  but  the  liability  of  the  re- 
ceiver to  account  remained,  and  the  bond  con- 
tinued in  force  until  he  had  fully  accounted 
and  thus  had  fulfilled  all  the  conditions  of  his 
bond.     (Smith  v.  U.  S.,  170  U.  S.,  372,  380.) 

Money  received  in  a  different  capacity. — 
The  sureties  of  a  bond  of  a  quartermaster  of  the 
Army  are  not  liable  for  his  default  in  safely 
keeping  and  disbursing  money  advanced  to  him 
as  acting  chief  commissary.  (8  Gomp.  Dec, 
269.) 

Money  disbursed  as  accommodation  to 
another  officer. — If  B,  without  a  receipt 
from  A,  upon  a  requisition  for  money,  volun- 
teers to  pay  demands  which  it  is  A's  duty  to 
pay,  or  pay  the  orders  of  A  and  permit  the 
receipts  for  the  sums  paid  by  him  to  get  into 
A's  possession,  by  whom  they  are  exhibited  at 
the  Treasury  and  allowed  in  the  final  settle- 
ment of  his  account,  without  A's  having  given 
credit  to_  B,  or  to  the  Government,  for  the 
amount,_  it  assumes  the  character  of  a  private 
transaction  between  A  and  B,  or  becomes  a 
debt  due  from  A,  as  an  individual,  to  B,  as  a 
private  person;  and  the  latter  can  not  claim  the 
amount  at  the  Treasury,  as  an  allowance  in  the 
settlement  of  his  account,  nor  as  a  legal  and 
equitable  credit  in  a  suit  against  him  by  the 
United  States.    (U.  S.  v.  Hawkins.  10  Pet.,  124.) 

Principal  under  suspension. — ^The  sus- 
pension of  an  officer  involves  the  suspension  of 
his  bond;  the  bond  required  of  the  person 
designated  to  take  the  place  of  the  former 
being  substituted  therefor  while  the  person  so 


designated  is  performing  the  duties  of  the 
office.     (18  Op.  Atty.  Gen.,  318.) 

One  bonded  officer  acting  as  assistant 
to  another. — "The  bond  of  an  officer  of  the 
Pay  C()r])s  acting  as  an  assistant  to  anotlier 
]my  officer  covers  the  public  property  actually 
in  his  custody,  and  for  which  he  has  receipted, 
but  does  not  release  the  senior  from  a  proper 
su])ervision  over  the  acts  of  his  subordinate." 
(Art.  R-3002  (5)  Navy  Regs.,  1913.) 

Acts  done  colore  officii. — The  sureties  on 
the  official  bond  of  a  public  officer  are  liable 
for  acts  done  by  the  officer  colore  officii,  al- 
though he  acts  without  sufficient  warrant. 
(Lamar  v.  McCulloch,  115  U.  S.,  163,  187,  citing 
Lammon  I'.  Fensier,  111  U.  S.,  17.) 

Money  transferred  by  Government  to 
officer's  agent. — A  transfer  of  moneys  by  the 
Government  to  an  agent  of  the  officer  does  not 
affect  the  liability  of  the  surety  as  a  transfer  to 
the  officer  himself.  The  fidelity  or  responsi- 
bility of  the  agent  through  whom  the  Govern- 
ment sees  fit  to  transfer  public  money  is  not 
within  the  obligation  assumed  by  the  surety. 
(Bryan  v.  U.  S.,  1  Black,  140.) 

Public  moneys. — Where  an  officer  receives 
moneys  as  public  moneys,  and  charges  himself 
with  them  in  his  accounts  with  the  Govern- 
ment, his  sureties  are  estopped  to  raise  an  objec- 
tion to  the  payment  of  the  moneys  to  the  officer, 
which  he  could  not  raise  and  which  is  not  raised 
by  the  parties  paying  or  the  United  States. 
Their  responsibility  for  the  moneys  so  received 
is  therefore  clear.  (Potter  v.  U.  S.,  107  U.  S., 
126,  130;  King  v.  U.  S.,  99  U.  S.,  229.) 

"Pu])lic  money  in  the  sense  of  the  law,  and 
as  used  in  this  ])ond,  is  money  which  legally 
comes  to  the  receiver  by  virtue  of  his  office,  and 
as  a  public  officer,  and  wliile  carrying  out  the 
duties  of  his  office,  and  he  cannot  be  permitted 
to  say  that  it  was  not  public  money  when  so  re- 
ceived. Being  public  money,  he  is  bound  to 
account."  (Smith  v.  U.  S.,  170  U.  S.,  372,  381; 
12  Comp.  Dec,  678,  688.) 

A  sum  of  money  deposited  with  a  pay  officer 
of  the  Navy  by  a  civil  officer  as  security  for  the 
return  of  an  enUsted  man  of  the  Navy  delivered 
to  the  State  authorities  for  trial  is  not  public 
money.  (17Comp.  Dec,  635;  seealso  16  Comp. 
Dec,  219,  citing  Branch  v.  U.  S.,  100  U.  S.,  673, 
674,  and  Courdert  v.  U.  S.,  175  U.  S.,  178,  183.) 

"It  may  be  assumed,  as  a  general  doctrine  of 
administrative  law,  that  public  officers, 
whether  of  deposit  or  disbursement,  can  make 
the  Government  and  their  sureties  responsible 
only  for  official  acts.  As  a  plain  corollary  from 
this  doctrine,  it  may  in  like  manner  be  as- 
sumed that,  if  any  citizen  of  the  United  States 
deposit  his  own  private  money  for  safe-keeping, 
or  for  transmission  and  remittance,  in  the  hands 
of  a  public  officer,  such  as  a  collector  of  customs, 
assistant  treasurer  of  the  United  States,  a  pay- 
master in  the  Army,  or  a  purser  in  the  Navy, 
no  liability  in  the  premises  can  be  thereby  cast 
on  the  Government.  It  is  quite  immaterial  in 
such  a  case  what  writings  may  have  passed  be- 
tween the  depositor  and  the  bailee,  what  en- 
gagements the  latter  may  have  entered  into 
with  the  former."  Accordingly,  held,  that  the 
official  bond  of  an  officer  of  the  Navy  is  not 
liable  for  private  funds  paid  him  by  his  prede- 
cessor.    (6  Op.  Atty.  Gen.,  357,  366.) 


492 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1383. 


For  other  decisions  as  to  what  constitutes 
public  money,  see  note  to  section  236,  Revised 
Statutes,  under  "II.  Jurisdiction  of  Account- 
ing Officers." 

Where  new  bond  is  given. — T^Tiere,  under 
the  act  of  March  2,  1895  (28  Stat.,  807),  which 
proxides  that  ''every  officer  whose  duty  it  is 
to  take  and  approve  official  bonds  shall  cause 
all  such  bonds  to  be  renewed  every  four  years 
after  their  dates,"  an  officer  renews  his  bond  by 
gi\ing  a  bond  during  the  same  term  of  office, 
the  new  bond  does  not  operate  to  release  the 
sureties  on  the  first  bond  from  Liability  for 
future  transactions,  but  the  sureties  on  the  old 
and  new  bonds  are  jointly  and  severally  liable 
therefor.     (5  Oomp.  Dec,  918.) 

WTiere  the  law  relating  to  the  bonds  of  per- 
sons in  the  Navy  reqiiired  that  every  person 
then  in  service,  etc.,  shall,  instead  of  the  bond 
required  by  a  former  act,  enter  into  a  new 
bond  with  sureties  conditioned  for  the  faithful 
performance  of  his  duties,  etc.,  the  sureties  on 
the  old  bond  are  discharged  from  all  respon- 
sibility for  moneys  received  by  any  person 
after  he  has  given  the  new  bond,  the  latter 
being,  by  the  act,  a  substitute  for  the  former. 
(U.  S.  V.  Wardwell,  28  Fed.  Cas.  No.  16640, 
per  Storj',  circuit  justice.) 

An  act  of  Congress  which  requires  new  sure- 
ties to  be  given  by  certain  public  officers  on  or 
before  a  specified  date  does  not  expressly  or 
bv  implication  discharge  the  former  sureties 
from  their  liability.  (U.  S.  v.  Nicholl,  12 
■Wheat.,  505;  see  below,  " Failure  to  give  new 
bond,"  under  "X.  Miscellaneous.") 

■Whether  the  new  bond  is  retroactive  or  not, 
a  full  account  of  the  money  on  hand  should  be 
made  in  order  to  avoid  any  dispute  between 
the  sureties  as  to  which  bond  is  Hable  in  the 
event  of  default.  Furthermore,  the  new  bond  is 
merely  cumulative,  the  former  bond  remaining 
in  force  throughout  the  term  of  his  office.  This 
being  so,  it  would  seem  adAisable  to  adhere  to 
the  present  practice  of  requiring  such  account. 
(29  Op.  Atty.  Gen.,  28.) 

The  rules  as  to  the  settlement  of  their 
accounts  by  disbursing  officers  on  rebonding 
should  be  adhered  to,  when  possible,  and  only 
departed  from  when  it  is  shown  that  great 
hardship  would  result  from  a  strict  compli- 
ance with  them;  in  other  words,  in  cases  where 
the  law  could  excuse  a  noncompliance. 
(Comp.  Dec,  Apr.  21,1903.  23  S.  and  A.  Memo., 
183.) 

The  regulation  reqiuring  that  when  a  new 
bond  is  given  the  officer  should  close  his 
accounts  under  the  former  bond  and  deposit 
any  unexpended  balance  before  an  advance  is 
made  under  the  new  bond,  in  order  that  the 
lia])ility  of  the  sureties  on  the  respective  bonds 
may  be  definitely  fixed,  contains  requirements 
demanded  by  proper  care  for  the  interests  of 
the  Government.  It  is  not  doubted  that  the 
regulation  may  be  waived,  even  retroactively, 
but  the  effect  of  waiver  and  the  de])arture  from 
the  usual  practice  upon  the  liability  of  the 
sureties  is  a  more  difficult  question.  Of  course 
the  sxu*ety  is  bound  by  the  terms  of  his  contract , 
but  it  is  a  maxim  of  law  that  the  liability  of 
sureties  is  strictissimi  juris,  and  that  lial)ility 
sometimes  depends  upon  fine  distinctions  made 
by  the  courts  and  upon  questions  which  in  the 


abstract  seem  without  significance,  but  when 
apphed  in  certain  cases  turn  out  to  be  matters 
of  great  importance.  It  therefore  seems  best 
in  all  cases  in  dealing  with  official  bonds  to 
follow  closelj^  the  beaten  tracks,  and  strictly 
to  adhere  to  the  law  and  regulations  made 
in  pursuance  thereto.  (Comp.  Dec,  Apr.  21, 
1903,  23  S.  and  A.  Memo.,  183.) 

"Where  an  action  was  brought  by  the  United 
States  upon  the  official  bond  of  a  receiver  of 
public  money,  a  plea  that  the  United  States 
had  accepted  another  bond  from  the  receiver 
wasbad.  The  new  bond  could  be  no  satis- 
faction for  the  damages  that  had  accrued  for 
the  breach  of  the  condition  of  the  old  one." 
(U.  S.  V.  Girault,  H  How._,  22.) 

When  an  officer  is  continued  in  office  for 
more  than  one  term,  but  gives  different  sure- 
ties the  liabihty  of  the  sureties  is  to  be  esti- 
mated just  as  if  a  new  person  had  been  ap- 
pointed to  fill  the  second  term.  (U.  S.  v. 
Eckford,  1  How.,  250;  but  see  sec.  1385,  R.  S.) 

"The  retrospective  obligation  of  the  bond 
is  as  much  limited  by  the  term  of  the  new 
appointment  as  the  prospective.  And  in 
this  view  it  would  be  as  logical  and  just  to  hold 
that  the  sureties  are  liable  for  defalcations  after 
the  expiration  of  the  term  as  for  those  which 
occurred  before  its  commencement.  There 
is  no  such  condition  in  the  instrument.  It 
recites  the  new  appointment  and  by  conse- 
quence limits  the  obligation  to  the  term  of 
office  fixed  bylaw."  (U.S.i).  Eckford,  IHow., 
250,  260.) 

"Where  there  were  two  consecutive  com- 
mis.sions  and  two  sets  of  sureties,  the  latter  set 
were  responsible  for  all  money  which  remained 
in  the  hands  of  the  principal  at  the  expira- 
tion of  the  first  commission.  If  it  was  misap- 
plied during  the  first  term  of  office,  it  was  in- 
cumbent upon  the  second  set  of  sureties  to 
showthatit  was  so."  (Bruce  v.  U.  S.,  17  How., 
437.) 

The  second  commission,  issued  imder  the 
appointment  with  the  advice  and  consent  of 
the  Senate,  operates  as  a  revocation  of  the  first 
commission  issued  under  the  appointment 
by  the  President,  which  was  to  continue  until 
the  end  of  the  next  session  of  the  Senate  and 
no  longer;  and  the  liability  of  the  sureties  in 
the  bond  did  not  extend  beyond  the  diiration 
of  the  first  commission.  (U.  S.  v.  Kirk- 
patrick,  9  Wheat.,  720.) 

The  bond  given  by  a  na-v-al  officer  under 
his  first  commission,  wliich  was  issued  upon  a 
temporary  appointment  made  during  a  recess 
of  the  Senate,  ceased  to  have  effect  after  the 
acceptance  of  a  new  commis.sion  imder  an 
appointment  made  vdth.  the  consent  of  the 
Senate.     (2  Op.  Atty.  Gen.,  333.) 

A  former  disbursing  officer  in  the  Navy 
reappointed  to  that  office  should  give  a  new 
bond;  but  not  definitely  decided  that  the 
original  sureties  of  the  officer  are  wholly  dis- 
charged of  responsibility  after  the  reappoint- 
ment: "This  point  should  be  saved  on  behalf 
of  the  United  States."    (1  Op_.  Atty.  Gen.,  175.) 

The  issuing  of  a  new  appointment  and  com- 
mission to  any  officer  of  the  Supply  Corps  of  the 
Navy  shall  not  affect  or  annul  any  existing 
bond,  but  the  same  shall  remain  in  force  and 
apply  to  such  new  appointment  and  commis- 


493 


Sec.  1383. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


sion.  (See  sec.  1385,  R.  S.;  and  see  above, 
"]3inds  oflicer  as  \on^  as  he  remains  in  office," 
under  "VII.  Condition  of  Bond.") 

Where  disbursing  oflicer  is  allowed  to 
remain  in  ofllce  after  defalcation. — On  a 
suit  by  the  Government  against  the  sureties  of 
a  public  officer  on  his  official  bond,  it  ia  no 
defense  that  the  Government,  through  the  ac- 
counting officers  of  the  Treasury,  had  full  notice 
of  the  defalcation  and  embezzlement  of  funds 
of  the  United  States,  and  yet  neglectfully  per- 
mitted the  said  officer  to  remain  in  office. 
(Jones  r.  U.  S.,  18  Wall.,  6C2.  In  this  case  it 
was  contended  that  the  knowledge  of  the  Gov- 
ernment that  the  officer  had  embezzled  its 
funds  should  have  caused  his  immediate  dis- 
missal; thus  terminating  the  liability  of  his 
sureties  and  limiting  it  to  the  amount  then  due, 
and  that,  when  the  Government  chooses  to  con- 
tinue in  office  an  officer  known  to  have  com- 
mitted such  an  act,  it  takes  upon  itself  the  trust 
of  his  future  honesty.) 

"\Miere  a  statute  expressly  directs  a  defaulting 
officer  to  be  recalled  at  the  expiration  of  six 
months  from  the  time  of  his  fault,  his  sureties 
are  not  discharged  but  remain  liable  for  his 
defaults  thereafter  until  he  is  actually  recalled. 
(U.  S.  V.  Nicholl,  12  Wheat.,  505,  509,  citing 
U.  S.  V.  Vanzandt,  11  Wheat.,  184.) 

An  omission  of  the  proper  officer  to  recall  a 
delinquent  paymaster  under  the  injunction  of 
a  statute  requiring  such  recall  does  not  dis- 
charge his  surety.  The  provisions  of  the  stat- 
ute are  merely  directory  and  intended  for  the 
security  of  the  Government  but  form  no  part 
of  the  contract  with  the  surety.  The  statute 
does  not  ipso  facto  remove  the  delinquent  pay- 
master from  office  but  only  make  it  the  duty 
of  the  proper  officer  to  remove  him.  The  officer 
whose  duty  it  may  be  to  recall  him  acts  upon 
his  own  responsibility  to  the  Government  by 
declining  to  do  so;  but  until  he  acts  otherwise 
the  paymaster  is  authorized,  notwithstanding 
his  delinquency,  to  receive  and  to  disbm-se  the 
funds  which  may  be  placed  in  his  hands.  The 
circumstance  of  new  funds  being  placed  in  his 
hands  after  his  delinquency  does  not  discharge 
the  surety.    (U.  S.  v.  Vanzandt,  llWheat.,  184.) 

An  officer  of  the  Supply  Corps  of  the  Navy, 
under  arrest  awaiting  action  upon  charges  of 
embezzlement,  may  be  released  temporarily 
and  put  on  duty  by  the  commanding  officer  of 
a  ship,  or  other  competent  authority,  should 
an  emergency  of  the  service  or  other  sufficient 
cause  make  such  measure  necessary.  (See  art. 
R-1410,  Na\-y  Regs.,  1913;  file  26251-8072:4, 
Oct.  17,  1913;  see  also  file  20251-8072:6,  Oct.  28, 
1913;  26251-8344,  Dec.  24,  1913.) 

Certificate  given  in  ignorance  of  fraud 
does  not  discliarge  sureties. — A  certificate 
given  to  a  disbursing  ofiicer,  before  the  discov- 
ery of  his  fraud,  that  his  accounts  had  been  ex- 
amined, found  correct,  and  were  closed,  did  not 
operate  to  release  him  or  his  sureties  from 
habiUty  on  the  bond.  (Moses  v.  U.  S.,  166 
U.  S.,  571.)  _ 

Such  certificates  were  undoubtedly  piima 
facie  evidence  of  the  facts  they  certified  to, 
and  in  the  absence  of  any  evidence  of  mistake 
or  fraud  attacking  the  integrity  of  the  items,  or 
any  of  them  appearing  on  the  books  and  upon 
which  the  certificates  were  based,  they  would 


be  conclusive  in  favor  of  the  officer  in  any  ac- 
tion against  him.  *  *  *  They  would  not, 
however,  be  conclusive  as  against  evidence  of 
forgery  of  any  vouchers  upon  which  the  accounts 
had  been  founded  and  the  settlement  arrived 
at;  this  is  too  plain  for  argument.  (Moses  v. 
U.  S.,  IGO  U.  S.,  571,  594.) 

Laches  of  Govemment  ofllcers  not  a 
discharge. — The  failure  of  the  receiver  to 
account  and  pay  quarterly,  as  prescribed  by 
the  rules  of  the  Treasury  Department,  was  no 
legal  defalcation  of  which  the  securities  can 
avail  themselves.  Laches  are  not  imputable 
to  the  Government.  The  regulations  requiring 
settlements  to  be  made  by  its  officers  at  short 
periods  are  designed  for  the  protection  of  the 
Government,  and  merely  directory  to  the 
officers  and  form  no  part  of  the  contract.  (U.  S. 
V.  Boyd,  15  Pet.,  187,  208.) 

Where  the  act  of  Congress  does  not  in  terma 
discharge  the  obligors  from  the  direct  claim  of 
the  United  States  on  them,  on  the  failure  of 
the  proper  officer  to  commence  a  suit  against 
the  defaulter  within  the  time  it  prescribes, 
their  Uability  continues;  they  remain  debtors 
of  the  United  States;  the  responsibiUty  of  the 
proper  officer  under  the  statute  is  superadded 
to,  not  substituted  for,  that  of  the  obligors. 
The  claim  of  the  United  States  upon  an  official 
bond,  and  upon  all  parties  thereto,  is  not  re- 
leased by  the  laches  of  the  officer  to  whom 
the  assertion  of  the  claim  is  entrusted  by  law; 
such  laches  have  no  effect  whatsoever  on  the 
right  of  the  United  States,  as  well  against  the 
sureties  as  the  principal  in  the  bond.  (Dox 
V.  Postmaster  General,  1  Pet.,  318;  see  also 
Postmaster  General  v.  Early,  12  WTieat.,  136.) 

"  Sound  policy  requires,  that  the  accounts  of 
disbiu"sing  officers  should  be  adjusted  at  the 
proper  department,  with  as  much  dispatch  as 
is  practicable;  this  is  aUke  due  to  the  public 
and  to  the  persons  who  are  held  responsible 
as  sureties;  to  the  individual  who  has  received 
advances  of  money,  no  lapse  of  time  nor  change 
of  circumstances  can  weaken  the  claim  of  Gov- 
ernment for  reimbursement;  but  there  may  be 
some  cases  of  hardship  where,  after  a  great 
lapse  of  time,  and  the  insolvency  of  the  prin- 
cipal, the  amount  of  the  defalcation  is  sought 
to  be  recovered  from  the  sureties.  The  law  on 
this  subject  is  founded  upon  consideration  of 
public  poUcy;  while  various  acts  of  hmitation 
apply  to  the  concerns  of  individuals,  none  of 
them  operate  against  the  Government;  on  this 
point,  there  is  no  difference  of  opinion  among 
the  Federal  or  State  coiu-ts."  (Smith  v.  U.  S. 
5  Pet.,  292.) 

"The  fiscal  operations  of  the  Government 
are  extensive  and  often  compUcated;  it  is  ex- 
tremely difficult,  at  all  times,  and  sometimes, 
impracticable,  to  settle  the  accounts  of  pubhc 
oflicers  with  as  little  delay  as  attends  the  pri- 
vate accounts  of  a  mercantile  establishment; 
but  it  is  always  in  the  power  of  an  individual 
who  may  be  held  responsible  for  the  faithful 
conduct  of  a  pubhc  agent,  to  see  that  his  ac- 
coimts  are  settled,  and  the  payment  of  any  bal- 
ance enforced.  A  notice  to  the  Govemment, 
by  the  surety,  that  he  is  unwiUing  to  continue 
his  responsibility,  would  induce  it,  in  most  in- 
stances, to  take  the  necessary  steps  for  his 
release."     (Smith  v.  U.  S.,  5  Pet.  292.) 


494 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.   1383. 


In  general,  laches  is  not  imputable  to  the 
Government;  and  where  the  laws  require  quar- 
terly or  other  periodical  accounts  and  settle- 
ments, a  mere  omission  to  bring  a  suit,  upon 
the  neglect  of  the  officer  or  agent  to  account, 
will  not  discharge  his  sureties.  (U.  S.  v.  Kixk- 
patrick,  9  Wheat.,  720.) 

Failure  to  institute  suit  operates  as 
discharge. — Section  2  of  the  act  of  August  8, 
1888  (25  Stat.,  387),  is  absolute  as  regards  the  dis- 
charge of  sureties  if  suit  on  the  bond  be  not 
instituted  "within  five  years  after  such  state- 
ment of  said  account"  by  the  accounting 
officer  of  the  Treasury.  It  makes  no  exception 
in  case  the  accounting  officer  does  not  make  such 
statement  as  early  as  he  should,  or  when  a  de- 
ficiency is  discovered  by  him.  (22  Op.  Atty. 
Gen.,  612.) 

It  was  not  intended  by  the  act  of  August  8, 
1888,  section  1  (25  Stat.,  387),  thatthe  accounting 
officer  should  delay  notice  until  it  has  become 
certain  that  there  is  a  deficiency;  nor,  on  the 
other  hand,  should  he  always  report  a  deficiency 
whenever,  from  the  account  of  a  disbmsing 
ofiicer,  it  may  appear  prima  facie  that  there  is 
one.  This  may  be  from  insufficient  vouchers  or 
evidence,  or  from  clerical  error  or  omission,  or 
in  one  or  more  of  various  ways  not  inconsistent 
with  a  proper  disbursement  of  the  moneys  in 
his  hands.  Whenever,  in  the  exercise  of  a 
sound  judgment  and  after  a  reasonable  time  al- 
lowed for  explanation  and  correction,  it  ap- 
pears to  the  accounting  officer  that  there  is  a 
probable  deficiency,  he  should  notify  the  head 
of  the  department  as  provided  in  section  1 
of  the  act.     (22  Op.  Atty.  Gen.,  613.) 

The  five-year  limitation  fixed  by  section  2  of 
the  act  of  August  8,  1888  (25  Stat.,  387),  within 
which  suits  may  be  brought  upon  the  official 
bonds  of  disbursing  officers,  begins  to  run  from 
the  time  the  accounting  officers  of  the  Treasmy 
make  the  statement  of  the  account  showing  an 
indebtedness  to  the  United  States.  (22  Op. 
Atty.  Gen.,  611.) 

Giving  time  to  principal  might  discharge 
sureties.  —  In  general,  laches  is  not  imput- 
able to  the  Government,  but  quaere,  WTiether 
in  case  there  is  an  express  agreement  between 
the  Government  and  the  principal,  giving  time 
to  the  latter  and  suspending  the  right  of  the 
former  to  sue,  the  sureties  are  not  discharged, 
as  in  a  similar  case  between  private  individ- 
uals?   (U.  S.  V.  Nicholl,  12  Wheat.,  505.) 

"A  mere  proposition  to  give  time,  and  sus- 
pend the  right  to  sue,  upon  certain  conditions 
and  contingencies,  which  are  not  proved  to  have 
been  complied  with,  or  to  have  happened,  will 
not  discharge  the  sureties."  (U.  S.  v.  Nicholl, 
12  Wheat.,  505.) 

The  President  has  no  authority  to  re- 
lease the  sureties  on  a  bond  given  to  the 
United  States  by  a  public  officer  for  the  faith- 
ful discharge  of  the  duties  of  his  office.  (7  Op. 
Atty.  Gen.,  02.) 

X.  Miscellaneous. 

Bond  should  not  be  surrendered  to 
officer. — It  is  a  sound  regulation,  conformable 
to  law,  for  the  head  of  a  department  not  to  give 
up  to  officers  their  original  bonds  on  the  execu- 
tion of  new  ones.     (4  Op.  Atty.  Gen.,  312.) 


There  is  no  act  authorizing  a  withdrawal  of 
oflBcial  bonds,  except  for  the  purposes  of  suit. 
(4  Op.  Atty.  Gen.,  312.) 

Accounts  in  the  Treasury  are  never  closed. 
In  neither  the  legal  nor  mercantile  sense  of 
the  term  is  an  accoimt  between  the  Government 
and  one  of  its  officers  ever  "finally  adjusted," 
nor  is  his  official  bond  ever  canceled  or  surren- 
dered. (Smith  V.  U.  S.,  14  Ct.  Cls.,  114,  118; 
see  U.  S.  V.  Smith,  105  U.  S.,  620.) 

Amount  of  bond. — A  paymaster  of  the 
Navy  who,  on  promotion  from  passed  assistant 
paymaster,  filed  an  additional  bond  with  the 
same  sureties  in  a  penal  sum  equal  to  the  differ- 
ence between  the  amount  of  his  bond  as  passed 
assistant  paymaster  and  that  required  of  him 
as  paymaster,  sufficiently  complied  with  the 
provisions  of  the  statutes  fixing  the  amount 
of  bond  which  shall  be  required  of  a  paymaster. 
(10  Comp.  Dec.,  44.  See  sec.  1385,  R.  S.,  and 
see  above,  "Binds  officer  as  long  as  he  remains 
in  office,"  under  "VII.  Condition  of  Bond.") 

Expense  of  furnishing  bond. — If  the  bond 
given  by  an  officer  is  required  by  law,  the 
expense  is  not  chargeable  to  the  United  States, 
since  it  is  the  duty  of  persons  receiving  appoint- 
ments from  the  Government  to  prepare  and 
tender  to  the  proper  officer  the  oaths  and  bonds 
required  by  law;  in  other  words,  to  qualify 
themselves  for  the  office.  (U.  S.  v.  Van  Duzee, 
140  U.  S.,  171;  see  also  13  Comp.  Dec,  386,  and 
2  Comp.  Dec,  262.) 

If  the  bond  is  not  required  by  law,  but  is  a 
voluntary  bond,  there  is  no  authority  for  charg- 
ing the  expense  of  furnishing  it  to  the  United 
States,  in  the  absence  of  an  appropriation  for 
such  expenses.     (12  Comp.  Dec,  678.     ) 

The  expense  incurred  by  an  officer  in  furnish- 
ing the  bond  required  by  law  of  all  disbursing 
officers  of  the  Government  is  not  a  proper  charge 
against  the  Government,  even  though  the 
officer  serves  without  compensation.  (2  Comp. 
Dec,  262.)  _ 

Anofficer  is  not  entitled  to  reimbursement  for 
premium  paid  by  him  to  a  guaranty  company  as 
surety  on  his  original  and  renewal  bonds.  (13 
Comp.  Dec,  375,  affirming  12  Comp.  Dec,  678.) 

The  incidental  expenses  incurred  by  a  special 
examiner  of  the  Pension  Office  in  investigating 
the  sufficiency  of  the  sureties  on  a  pension 
agent'sbond,  by  direction  of  the  Interior  Depart- 
ment, are  a  proper  charge  against  the  appropria- 
tion for  investigation  of  pension  cases.  (2 
Comp.  Dec,  444;  but  see  act  Aug.  5,  1909,  36 
Stat.,  125;  and  see  above,  "Certificate  of  suffi- 
ciency," under  "IV.  Form  of  Bond.") 

When  the  Secretary  of  the  Navy,  in  order  to 
ascertain  the  sufficiency  of  the  sm'eties  on  the 
bond  of  a  pay  officer,  as  is  required  of  him  by 
section  5  of  the  act  of  March  2,  1895  (28  Stat., 
807),  orders  certain  evidence  to  be  procured  by 
the  officer  himself,  the  latter  is  entitled  to  be 
reimbursed  for  the  expenses  inciuTed  in  execut- 
ing the  order.  (3  Comp.  Dec,  135;  but  see  act 
Aug.  5, 1909,  36  Stat.,  125.) 

Rate  of  premium. — The  provision  of  the 
act  of  August  5, 1909  (36  Stat.,  125), regulating 
the  charge  which  may  be  made  by  surety  or 
bonding  companies  for  becoming  surety  on  the 
official  bonds  of  officers  or  employees  of  the 
United  States,  contemplates  that  the  charge 
shall  not  be  more  than  35  per  cent  above  the 


495 


Sec.  1386. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


rate  paid  during  1908  on  any  bond  belonging  to 
the  same  general  class,  proAided  that  charge 
did  not  constitute  an  isolated  instance  of  an 
unusual  or  extortionate  premium.  (27  Op. 
Atty.  Gen.,  597.) 

In  determining  what  the  charge  was  during 
1908  for  other  bonds  of  like  character,  depart- 
ments may  exclude  any  premium  which  was 
60  high  as  to  be  outside  the  range  of  the  usual 
or  customary  charge,  and  include  any  charge 
even  though  it  be  the  highest  paid,  if  it  be  not 
so  high  as  to  fall  \vithin  the  inhibition  above 
stated.     (27  Op.  Atty.  Gen.,  597.) 

The  rate  of  premium  paid  by  the  incumbent 
of  any  particular  office  during  1908  on  an  offi- 
cial bond  may  be  used  as  the  base  for  computing 
the  rate  which  shall  be  paid  upon  the  bond  of 
the  incumbent  of  the  same  office  under  the  act 
of  August  5,  1909,  provided  such  rate  did  not 
constitute  an  isolated  instance  of  an  unusual  or 
extortionate  premium.    (28  Op.  Atty.  Gen. ,  28. ) 


The  act  of  August  5,  1909,  applies  to  bonds 
running  to  the  United  States,  and  which  are 
accepted  in  each  case  by  the  properly  desig- 
nated officer  of  the  United  States;  but  does  not 
apply  to  bonds  voluntarily  given  by  an  em- 
ployee or  officer  of  the  United  States  to  a  su- 
perior officer.     (28  Op.  Atty.  Gen.,  28.) 

Failure  to  give  new  bond. — ^\^lere  a  stat- 
ute was  enacted  increasing  the  amount  of  bond 
required  of  disbursing  officers  in  the  Navy, 
and  providing  that  from  and  after  a  specified 
date  no  person  shall  act  in  the  capacity  of  such 
disbursing  officer  who  shall  not  enter  into  such 
bond  as  required,  disbursing  officers  who  have 
neglected  to  give  bond  on  or  before  the  speci- 
fied date  "are  out  of  office  by  the  neglect,"  and 
can  no  longer,  "without  a  new  appointment" 
act  in  the  character  of  such  officers.  (5  Op. 
Atty.  Gen.,  706;  see  also  U.  S.  v.  Zantzinger,  28 
Fed.  Cas.  No.  16785;  13  Comp.  Dec,  375.) 


Sec.  1384.  [Supply  Corps ;  new  bonds  required.]  Officers  of  the  Pay  Corps 
shall  give  new  bonds  with  sufficient  sureties,  whenever  required  to  do  so  by 
the  Secretary  of  the  Navy.— (26  Aug.,  1842,  c.  206,  s.  4,  v.  5,  p.  535.) 


Amendment  to  this  section  was  made  by  act  of 
July  11,  1919  (41  Stat.,  147),  which  changed 
the  designation  of  the  Pay  Corps  to  "Supply 
Corps." 


See  note  to  section  1383,  Revised  Statutes, 
under  "V.  Sufficiency  of  Sureties,"  "IX. 
Liability  of  Sureties,"  and  "X.  Aliscella- 
neous; "  see  also  act  of  March  2, 1895,  sec- 
tion 5  (28  Stat.,  807). 

Sec.  1386,  [Supply  Corps;  bonds  not  affected  by  new  commissions.]  The 
issuing  of  a  new  appointment  and  commission  to  any  officer  of  the  Pay  Corps 
shall  not  affect  or  annul  any  existing  bond,  but  the  same  shall  remain  in  force, 
and  apply  to  such  new  appointment  and  commission. — (3  IVIar.,  1871,  c.  117, 
s.  6,.v.  16,  p.  536.) 


Amendment  to  this  section  was  made  bv  act  of 
July  11, 1919  (41  Stat.,  147),  which  changed 
the  designation  of  the  Pay  Corps  to  "Supply 
Corps." 

See  note  to  section  1383,  Revised  Statutes, 
under  "VII.    Condition    of    Bond — binds 


officer  as  long  as  he  remains  in  office;"  and 
"IX.  Liability  of  Sureties — ^where  new 
bond  is  given.''  See  also  10  Oomp.  Dec, 
44,  noted  under  section  1383,  Re\Tsed  Stat- 
utes,  "X.  Miscellaneous." 


Sec.  1386.  [Supply  Corps ;  when  clerks  allowed  officers.     Repealed.] 


This  section  provided  as  follows: 

"Sec.  1386.  Paymasters  of  the  fleet,  paymas- 
ters on  vessels  having  complements  of  more  than 
one  hundred  and  seventy-five  persons,  on  sup- 
ply-steamers, store-veasels,  and  recei\ing-ships, 
pay  masters  at  stations  and  at  theNaval  Academy, 
and  paymasters  detailed  at  stations  as  inspectors 
of  provisions  and  clothing,  shall  each  be  allowed 
a  clerk."— (14  July,  1862,  c.  164,  s.  3,  v.  12,  p. 
565;  26  May,  1864,  c.  96,  v.  13,  p.  92.) 

It -was  repealed  by  act  of  March  3,  1915  (38 
Stat.,  942,  943),  which  made  provision  for  the 
appointment  of  acting  pay  clerks,  pay  clerks, 
and  chief  pay  clerks  to  the  total  number  of  one 
for  each  250  enlisted  men  allowed  by  law  in  the 
Na^^,  and  provided  that  said  clerks  "shall  be 
assigned  to  duty  with  pay  officers  under  such 
rules  as  the  Secretarj-  of  the  NaA'y  may  pre- 
scribe." For  number  of  enlisted  rnen  allowed 
by  law,  see  note  to  section  1417,  Revised  Stat- 
utes. See  also  act  of  May  22, 1917  (40  Stat.,  84), 
as  amended  by  act  of  July  1, 1918  (40  Stat.,  715), 


providing  for  temporary  appointment  of  addi- 
tional officers  for  service  during  the  existing  war. 

It  had  previously  been  amended  by 
clauses  in  the  annual  naval  appropriation  act, 
under  the  heading,  "Pay  of  the  Navy,"  increas- 
ing the  number  of  positions  for  which  such 
clerks  were  allowed,  the  latest  amendment  hav- 
ing been  contained  in  the  act  of  August  22, 1912 
(37  Stat.,  328),  which  made  appropriation  for 
"clerks  to  paymasters  at  yards  and  stations, 
general  storekeepers  ashore  and  afloat,  and  re- 
ceiving ships  and  other  vessels;  two  clerks  to 
general  inspectors  of  the  Pay  Corps;  one  clerk 
to  pay  officer  in  charge  of  deserters'  rolls;  not 
exceeding  ten  clerks  to  accounting  officers  at 
yards  and  stations. ' ' 

Pay,  allowances,  and  retirement. — By 
actof  Mayl3, 1908(35Stat.,  128),  it  was  provided 
that  "all  paymasters'  clerks  shall,  while  on  duty, 
receive  the  same  pay  and  allowances  as  warrant 
officers  of  Uke  length  of  service  in  the  Na-vy;" 
this  provision  was  superseded  by  the  following 


496 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1389. 


clause  in  the  act  of  June  24,  1910 (36  Stat.,  606): 
"All  paymasters'  clerks  shall,  while  holding 
appointment  in  accordance  with  law,  receive 
the  same  pay  and  allowances  and  have  the 
same  rights  of  retirement  as  warrant  officers  of 
like  length  of  service  in  the  Navy. ' '  The  latter 
pro\ision  was,  in  turn,  superseded  by  the  act  of 
March  3,  1915,  above  cited,  which  p^o^'ided 
that  "pay  clerks  and  acting  pay  clerks  shall 
have  the  same  pay,  allowances,  and  other  bene- 
fits as  are  now  or  may  hereafter  be  allowed  other 
warrant  officers  and  acting  warrant  officers,  re- 
spectively;" and  that  "all  pay  clerks  shall, 
after  six  years'  serv'ice  as  such,  be  commissioned 
chief  pay  clerks  and  shall  on  promotion  have 
the  rank,  pay,  and  allowances  of  chief  boat- 
swain." 

The  status  of  clerks  to  officers  of  the 
Pay  Corps  prior  to  the  act  of  March  3,  1915, 
above  cited,  was  the  subject  of  numerous  de- 
cisions. They  were  held  not  officers  of  the 
Navy  in  the  case  of  United  States  v.  Mouat  (124 
U.  S.,  303);  were  held  to  be  officers  in  a  qualified 
sense  in  the  case  of  United  States  v.  Hendee  (124 
U.  S.,  309);  and  were  held  to  be  officers  in  the 
constitutional  as  well  as  the  popular  sense,  by 
the  Attorney  General,  in  view  of  certain  changes 


which  had  been  made  in  the  Navy  Regulations 
(27  Op.  Atty.  Gen.,  157);  but  a  contrary  opinion 
was  expressed  by  the  Court  of  Claims  in  the 
case  of  Ashton  v.  United  States  (51  Ct.  Cls.,  65), 
which  modified  a  previous  decision  by  that 
court  in  the  case  of  Katzer  v.  United  States  (49 
Ct.  Cls.,  294). 

They  were  at  all  times  held  amenable  to  trial 
by  court-martial  as  oflicers  of  the  Navy  (see  Ex 
parte  Reed,  100  U.  S.  13;  Johnson  v.  Sayre,  158 
U.  S.,109;  U.  S.  V.  Bogart,  24  Fed.  Cas.  No. 
14616;  In  re  Reed,  20  Fed.  Cas.  No.  11636;  In 
re  Bogart,  3  Fed.  Cas.  No.  1596;  but  see.  Ex 
parte  Van  Vranken,  47  Fed.  Rep.,  888,  reversed 
163  U.  S.,  694). 

Their  status  as  officers  of  the  United  States  is 
now  definitely  established  by  the  act  of  March 
3,  1915,  above  cited,  which  vests  the  appoint- 
ment of  acting  pay  clerks  in  the  Secretary  of  the 
Navy,  the  appointment  of  pay  clerks  in  the 
President,  the  same  as  other  warrant  officers, 
and  the  appointment  of  chief  pay  clerks  in  the 
President,  by  and  with  the  advice  and  consent 
of  the  Senate,  the  same  as  other  commissioned 
officers  of  the  Navy.  (See  note  to  Constitution, 
Art.  II,  sec.  2,  clause  2,  as  to  who  are  officers  of 
the  United  States.) 


Sec.  1387.  [Supply  Corps ;  when  clerks  not  allowed  officers.     Repealed.] 


This  section  provided  as  follows: 

"  Sec.  1387.  No  paymaster  shall  be  allowed  a 
clerk  in  a  vessel  having  the  complement  of  one 
hundred  and  seventy- five  persons  or  less,  except- 
ing in  supply-steamers  and  store-vessels." — (26 
May,  1864,  c.  96,  v.  13,  p.  92.) 


It  was  repealed  by  act  of  March  3, 1915  (38 
Stat.,  942,  943). 

See  note  to  section  1386,  Revised  Stat- 
utes. 


Sec.  1388.  [Supply  Corps ;  clerks  to  passed  assistant  and  assistant  paymasters. 
Repealed.] 


This  section  provided  as  follows: 

"Sec.  1388.  Passed  assistant  paymasters  and 
assistant  paymasters  attached  to  vessels  of  war 
shall  be  allowed  clerks,  if  clerks  would  be 
allowed  by  law  to  paymasters  so  attached." — (3 
Mar.  1863,  c.  118,  s.  5,  v.  12,  p.  818.) 


It  was  repealed  by  act  of  March  3, 1915  (38 
Stat.,  942,  943). 

See  note  to  section  1386,  Revised  Stat- 
utes. 


Sec.  1389.  [Supply  Corps;  loans  to  officers  prohibited.]  It  shall  not  be  lawful 
for  any  paymaster,  passed  assistant  paymaster,  or  assistant  paymaster,  to 
advance  or  loan,  under  any  pretense  whatever,  to  any  officer  in  the  naval 
service,  any  sum  of  money,  public  or  private,  or  any  credit,  or  any  article  or 
commodity  whatever. — (26  Aug.,  1842,  c.  206,  s.  6,  v.  5,  p.  536.  22  June, 
1860,  c.  181,  s.  3,  V.  12,  p.  83.) 

Secretary  of  the  Navy  in  advance  of  travel, 
and  may  be  paid  for  prior  to  actual  per- 
formance   of    the    travel    involved.     (Act 
Apr.  27,  1904,  sec.  1,  33  Stat.,  403.) 
No  money  shall  be  paid  to  any  person  as  com- 
pensation who  is  in  arrears  to  the  United 
States.     (Sec.  1766,  R.  S.     See  note  to  sec. 
236,  R.  S.,  under  "VI.  Set-off." 
The     words,    "paymaster,     passed     as- 
sistant    paymaster,     or     assistant     pay- 
master," as  used  in  the  above  section,  have 
been  construed  to  include  "any  officer  of  the 
Supplv  Corps."     (See  Art.  1745,    Na\y  Regs., 
1920.)" 


Advances  of  pay  to  naval  officers  in  certain 
cases  are  authorized  by  sections  1563  and 
3648,  Revi.sed  Statutes,  as  modified  by  act 
of  March  4,  1917  (39  Stat.,  1181),  and  are 
prohibited  in  other  cases  by  the  latter 
section. 

Loans  of  public  money  or  unauthorized  with- 
drawals thereof  by  any  disbursing  officer 
are  punishable  as  embezzlement  by  sec- 
tion 87  of  the  Criminal  Code,  act  of  March  4, 
1909_  (35  Stat.,  1105).  See  section  1624, 
Revised  Statutes,  article  14. 

Mileage  books  and  transportation  tickets  may 
be  furnished   officers  and   others  by   the 


497 


Sec.  1390. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


An   order   of  the   commanding   officer, 

])ursuant.  to  section  285,  Revised  Statutes,  does 
not  authorize  an  advance  of  public  money  by 


an  officer  of  the  Supply  Corps  to  the  command- 
ing officer  or  to  any  other  person  by  his  order. 
(Art.  1749  (2),  Navy  Regs.,  1920.) 


Sec.  1390.  [Engineer  Corps ;  organization  of .     Superseded.] 


Tills  section  provided  as  follows: 

"Sec.  1390.  The  active  list  of  the  Engineer 
Cor])s  of  the  Navy  shall  consist  of  seventy 
chief  engineers,  wno  shall  be  divided  into 
three  grades,  by  relative  rank,  as  pro\dded  in 
Chapter  Four  of  this  Title; 

"Ten  chief  engineers; 

"Fifteen  chief  engineers;  and 

"Forty-five  chief  engineers,  who  shall  have 
the  relative  rank  of  lieutenant  commander  or 
lieutenant. 

' '  And  each  and  all  of  the  above-named  officers 
of  the  Engineer  Corps  shall  have  the  pay  of 
chief  engineers  of  the  Navy,  as  now  provided. 

"One  hundred  first  assistant  engineers,  who 
shall  have  the  relative  rank  of  lieutenant  or 
master;  and 

"One  hundred  second  assistant  engineers, 
who  shall  have  the  relative  rank  of  master  or 
ensign;  and  the  said  assistant  engineers  shall 
ha^■e  the  pay  of  first  and  second  assistant  engi- 
neers of  the  Navy  respectively,  as  now  pro- 
wled."—(3  Mar.,  1871,  c.  117,  s.  7,  v.  16,  p. 
536;  24  Feb.,  1874,  c.  35,  v.  18,  p.  17.) 

It  was  amended  by  act  of  February  24, 1874, 
section  1  (18  Stat.,  17),  which  changed  the  title 
of  first  assistant  engineer  to  passed  assistant 
engineer,  and  changed  the  title  of  second  assist- 
ant engineer  to  assistant  engineer. 

It  was  superseded  by  act  of  August  5, 1882, 
section  1  (22  Stat.,  286),  which  provided  that 
the  active  list  of  the  Engineer  Corps  should 
thereafter  consist  of  10  chief  engineers  with  the 
relative  rank  of  captain,  15  chief  engineers  with 
the  relative  rank  of  commander,  45  chief  engi- 
neers with  the  relative  rank  of  lieutenant  com- 
mander or  lieutenant,  60  passed  assistant  engi- 
neers, and  40  assistant  engineers  with  the  rela- 
tive rank  for  each  as  pre\dously  fixed  by  law. 

By  the  same  act  it  was  provided  that  when 
vacancies  occurred  in  any  of  the  grades  of  the 
Engineer  Corps,  "no  promotion  shall  be  made 
to  fill  the  same  until  the  number  in  said  grade 
shall  be  reduced  below  the  number  which  is 
fixed  by  the  provisions  of  this  act  for  such 
grade." 

Further  changes  were  made  by  act  of 
March  3,  1883  (22  Stat.,  472),  which  provided 
that  thereafter  "only  one-half  of  the  vacancies 
in  the  various  grades  in  the  Staff  Corps  of  the 
Navy  shall  be  filled  by  promotion  until  such 
grades  shall  be  reduced  to  the  numbers  fixed  for 
the  several  grades  of  the  Staff  Corps  of  the 
Navy"  by  act  of  August  5,  1882,  above  noted; 
by  act  of  March  2,  1889  (25  Stat.,  878),  which 
authorized  the  appointment  of  five  assistant 
engineers  from  among  former  graduates  of  the 
Naval  Academy,  and  "enlarged  "  the  Engineer 
Corps  for  the  purpose  of  such  additional  ap- 
pointments; and  by  act  of  December  16,  1892 
(27  Stat.,  405),  which  provided  that  the  reduc- 
tion in  the  numbers  of  the  Engineer  Corps  pro- 
vided for  in  act  of  August  5, 1882,  "shall  be  con- 
sidered as  having  ceased  on  the  thirtieth  day  of 
June,  eighteen  hundred  and  ninety -one." 


The  Engineer  Corps  was  abolished  by 

the  Navy  personnel  act  of  March  3,  1899  (30 
Stat.,  1004),  section  1  of  which  act  provided 
"that  the  officers  constituting  the  Engineer 
Corps  of  the  Navy  be,  and  are  hereby,  trans- 
ferred to  the  line  of  the  NaA^y,  and  shall  be 
commissioned  accordingly." 

As  the  officers  who  constituted  the  Engineer 
Corps  were  transferred  to  the  line  of  the  Na^^, 
it  follows  that  the  corps  was  abolished.  But  it 
will  be  observed  that,  while  such  officers  were 
transferred  to  the  hne,  the  duties  of  engineers 
are  not  abolished.  There  will  continue  to  be 
engineers  and  chief  engineers,  though  under 
another  name.  (Denig  v.  U.  S.,  37  Ct.  Cls., 
383,  392.     See  also  note  to  sec.  1393,  R.  S.) 

The  appointment  and  assignment  of 
line  officers  for  engineering  duty  only  are 
authorized  by  acts  of  February  16,  1914,  sec- 
tion 21  (38  Stat.,  283),  and  August  29,  1916  (39 
Stat.,  580). 

The  detail  of  an  officer  from  the  Engi- 
neer Corps  as  professor  in  any  established 
scientific  school  or  college  was  authorized  to  be 
made  by  the  President  upon  appUcation  of  such 
school  or  college,  for  the  purpose  of  promoting 
a  knowledge  of  steam  engineering  and  iron  ship- 
building, such  details  not  at  any  time  to  exceed 
25.  (Act  Feb.  26,  1879,  20  Stat.,  322;  see  also 
act  Jan.  13,  1891,  26  Stat.,  716,  and  note  to  sec. 
1225,  R.  S.) 

Former  engineer  officers  who  under  the  act 
of  March  3,  1899  (30  Stat.,  1004),  perform  engi- 
neering duty  on  shore  only  "shall  be  eligible 
for  any  shore  duty  compatible  with  their  rank 
and  grade  to  which  the  Secretary  of  the  Navy 
may  assign  them."  (Act  June  30,  1914,  38 
Stat.,  394;  act  Mar.  3,  1915,  38  Stat.,  930;  see 
note  to  sec.  1404,  R.  S.) 

The  effect  of  the  act  of  March  3,  1915  (38 
Stat.,  930),  so  far  as  concerns  former  engineer 
officers  now  of  the  line  is  to  remove  the  restric- 
tion which  existed  in  the  case  of  certain  of  said 
officers  by  which  they  were  eligible  only  for 
engineering  duty  on  shore.  Such  officers  are 
now  eUgible  for  any  shore  duty  assignable  to 
other  hne  officers  of  their  rank.  (File  26806- 
140,  June  9,  1916.) 

Line  officers  assigned  to  engineering  duty 
only  shall  retain  "the  right  to  succession  to 
command  on  shore  in  accordance  with  their 
seniority."     (Act  Aug.  29,  1916,  39  Stat., .580.) 

The  detail  of  an  officer  from  the  Engineer 
Corps  of  the  Army  or  Navy  as  superintendent 
of  the  State,  War,  and  Navy  Department  build- 
ing was  authorized  by  act  of  March  3,  1883  (22 
Stat.,  553.) 

The  transfer  of  the  Engineer  Corps  of  the 
Navy  to  the  line  by  the  Navy  personnel  act  of 
March  3,  1899  (30  Stat.,  1004),  does  not  preclude 
the  appointment  of  a  naval  officer  on  the  active 
list,  formerly  an  ofticer  of  that  corps,  and  now 
restricted  to  the  performance  of  engineering 
duty,  to  the  superintendency  of  the  State,  War, 
and'  Navy  building,  as  provided  in  the  act  of 


498 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1393. 


March 3, 1883 (22 Stat.,  553).  (25  Op.  Atty.  Gen., 
508.) 

The  act  of  March  3,  1883,  does  not  authorize 
the  detail  as  superintendent  of  the  State,  War, 
and  Navy  building  of  a  retired  officer  of  the 
Na\-j'  transferred  from  the  Engineer  Corps  to 
the  Line  for  engineering  duty  only  by  the  Navy 
personnel  act  of  March  3,  1899.  (25  Op.  Atty. 
Gen.,  508;  see  also  note  to  sec.  1462,  R.  S.) 

The  detail  of  officers  in  the  Engineer  Corps  in 
the  Army  or  Navy  to  perform  services  under  the 
act  of  March  12,  1914  (38  Stat.,  305),  providing 
for  the  location,  construction,  and  operation  of 
railroads  in  the  Territory  of  Alaska,  was  author- 
ized by  section  1  of  that  act. 

"Grades"  and  "ranks"  in  Engineer 
Corps. — Under  this  section  it  was  held  that 
chief  engineers  constituted  only  one  grade  in 
the  Na\y,  although  divided  into  four  different 
ranks;    that   their   rank    changed    with    their 


seniority  in  that  grade,  but  such  change  of 
rank  did  not  constitute  a  change  in  office  or 
grade;  accordingly,  that  their  changes  in  rank 
might  be  indicated  by  notification  from  the 
Secretary  of  the  Navy,  and  that  no  examina- 
tion or  appointment  or  confirmation  by  the 
Senate  was  necessary;  that  the  mere  fact  that 
different  rank  is  assigned  to  officers  whose 
office  is  designated  by  the  same  title  does  not 
necessarily  put  such  officers  in  different  grades; 
the  office  remains  the  same.  (20  Op.  Atty. 
Gen.,  358,  citing  Wood  v.  U.  S.,  107  U.  S., 
414,  as  to  difference  between  rank  and  office; 
and  explaining  16  Op.  Attv.  Gen.,  417;  see 
also  Rutherford  v.  U.  S.,  IS  Ct.  Cls.,  339; 
and  see  note  to  Constitution,  Art.  II,  sec.  3, 
under  "Advancement  in  rank  only."  As  to 
difference  between  "rank"  and  "grade,"  see 
generally,  notes  to  sees.  1362  and  1457,  R.  S.) 


Sec.  1391.  [Engineer  Corps;  appointments  in,  how  made.     Superseded.] 


It  was  superseded  by  the  Xa\y  personnel 
act  of  March  3,  1899  (30  Stat.,  1004),  by  which 
the  Engineer  Corps  was  abolished.  (See  note 
to  preceding  section.) 


This  section  provided  as  follows: 

"Sec.  1391.  Engineers  shall  be  appointed 
by  the  President,  by  and  with  the  advice  and 
consent  of  the  Senate." — (31  Aug.,  1842,  c. 
279,  8.  6,  V.  5,  p  577.  3  Mar.,  1845,  c.  77, 
8.  7,  V.  5,  p.  794.  25  July,  1866,  c.  231,  s.  7, 
V.  14,  p.  223.) 

Sec.  1392.  [Engineer  Corps;  qualifications  for  appointment  and  promotion. 
Superseded.] 


This  section  provided  as  follows: 

"Sec.  1392.  No  person  under  nineteen  or 
over  twenty-six  years  of  age  shall  be  appointed 
a  second  assistant  engineer  in  the  Na\^;  nor 
shall  any  person  be  appointed  or  promoted  in 
the  Engineer  Corps  until  after  he  has  been 
found  qualified  by  a  board  of  competent 
engineers  and  medical  officers  designated  by 
the  Secretary  of  the  Navy,  and  has  complied 
with  existing  regulations." — (3  Mar.,  1871,  c. 
117,  s.  8,  V.  16,  p.  536;  24  Feb.,  1874,  c.  35, 
V.  18,  p.  17.) 


It  was  superseded  hy  act  of  August  5,  1882 
(22  Stat.,  285),  as  amended  by  acts  of  March  2, 
1889  (25  Stat.,  878),  and  July  26,  1894  (28 
Stat.,  124),  noted  more  fully  iinder  sections 
1394  and  1521,  Re\dsed  Statutes,  which  made 
provision  for  the  filling  of  all  vacancies  in  the 
Engineer  Corps  by  appointment  from  graduates 
of  the  Naval  Academy.  See  also  note  to  section 
1390,  Re\dsed  Statutes,  concerning  the  abolish- 
ment of  the  Engineer  Corps,  and  see  U.  S.  v. 
Redgrave,  116  U.  S.,  474,  in  which  this  section 
was  cited . 


Sec.  1393.  [Engineer  of  the  fleet.]  The  President  may  designate  among 
the  chief  engineers  in  the  service,  and  appoint  to  every  fleet  or  squadron,  an 
engineer,  who  shall  be  denominated  "engineer  of  the  fleet." — (21  Apr.,  1864, 
c.  63,  s.  7,  V.  13,  p.  54.) 


Pay  of  fleet  engineers  was  fixed  at  $4,400  per 
annum,  by  section  1556,  Revised  Statutes. 
See  note  to  that  section. 
See  section  1373,  Re\dsed  Statutes,  as  to  ap- 
pointment of  fleet  singeons;  and  section 
1382,  Revised  Statutes,  as  to  appointment 
of  fleet  paymasters. 
Section    1393    is   not   repealed   by    the 
NaA^  personnel  act  of  March  3,  1899  (30  Stat., 
1004),  abolishing  the  Engineer  Corps  of  the 
Navy.    The  office  of  "engineer  of  the  fleet" 
continues,   notwithstanding  the  provision  in 
the  later  statute  that  '  'the  officers  constituting 
the  Engineer  Corps  of  the  Navy  are  transferred 
to  the  line  of  the  Navy  and  shall  be  com- 
missioned accordingly."     The  duties  of  chief 
engineer  in  the   Na\'y  continue,  though    the 
officers  have  become  merged  in  the  line  and 
are  designated   by  another  name.     (Denig  v. 
U.  S.,  37  Ct.  Cls.,  383.) 


What  ofl&cers  eligible  for  appointment 
as  fleet  engineer. — It  was  held  by  the 
Comptroller  of  the  Treasmy  (7  Comp.  Dec, 
24)  that  as  the  Navy  personnel  act  of  !March 
3,  1899  (30  Stat.,  1004),  practically  abolished 
the  Engineer  Coi-ps  of  the  Na\'y,  and  with  it 
the  grade  of  chief  engineer,  by  transferring 
that  cor]3S  to  the  line,  the  provision  of  section 
1556  of  the  Revised  Statutes  for  a  special  rate 
of  pay  for  engineers  of  the  fleet  became  inopera- 
tive, since  there  existed  thereafter  no  grade 
from  which  the  President  might  designate 
engineers  of  the  fleet  in  pursuance  of  section 
1393.  The  Court  of  Claims,  however,  in  the 
case  of  Denig  v.  U.  S.,  above  cited,  laid  down 
a  different  rule  and  held  that,  where  an  of- 
ficer of  the  Naw  who  on  March_  3,  1899, 
belonged  to  the  grade  of  chief  engineer,  has 
since  that  date  been  duly  designated  to  per- 
form the  duties  of  engineer  of  the  fleet,  he  is 


499 


Sec.  1393. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


entitletl  ti>  the  pay  provided  for  that  position 
by  section  155()  of  tne  Revised  Statutes,  not- 
withstanding the  ])nivisiiiu  of  the  Navy  per- 
sonnel act  transferrint!;  the  Coros  of  Engineers 
to  the  line  of  the  Navy.  The  comptroller 
subsequently  followed  the  decision  of  the 
Court  of  Claims  in  the  Denig  case,  and  laid 
down  the  rule  as  follows  (8  ('omp.  Dec,  842): 
"An  oliicer  of  the  Navy  who,  on  March  3, 
1899,  belonged  to  the  grade  of  chief  engineers 
and  who  was  duly  designated  as  engineer  of 
the  fleet,  ib  entit  led  to  pay  at  the  rate  of  $4,400 
per  annum  while  performing  such  duty." 
Both  the  Denig  case  and  the  above  decision 
were  limited  by  the  fact  that  the  officer  was  a 
chief  engineer  on  March  3,  1899,  the  date  the 
Navy  personnel  act  was  approved.  (9  Comp. 
Dec,  301.) 

It  must  be  conceded,  as  stated  by  the  Court 
of  Claims,  that  the  duties  of  chief  engineers 
were  not  abolished  by  the  Navy  personnel  act; 
that  it  was  therefore  in  the  power  of  the  Presi- 
dent to  designate  some  officer  to  perform  those 
duties;  and  that  whether  he  designated  such 
officer  to  perform  them  as  chief_  engineer  or  by 
some  other  title  is  immaterial  in  so  far  as  the 
performance  of  the  duties  is  concerned.  The 
Court  of  Claims  has  decided  that  the  change 
effected  by  the  Navy  personnel  act  was  merely 
a  change  of  name  or  of  official  title;  accepting 
this  decision  as  a  judicial  interpretation  of  the 
law,  the  distinction  is  immaterial  between  the 
case  of  a  person  who  was  a  chief  engineer  at  the 
time  the  law  was  changed  and  who  continued 
to  perform  the  duties  of  chief  engineer,  and  the 
case  of  a  person  who  was  a  passed  assistant  engi- 
neer at  the  time  and  who  continued  to  perform 
the  duties  of  passed  assistant  engineer  until 
promoted  to  lieutenant  commander  and  as- 
signed to  the  duties  of  chief  engineer.  If  the 
former  is  held  to  be  a  chief  engineer  under  a 
different  official  title,  the  latter  may  also  be. 
The  Navy  Regulations  proceed  upon  the  theory 
that  the  limitation  of  appointments  of  engineers 
of  the  fleet  to  the  grade  of  chief  engineer  no 
longer  applies,  and  that  the  statute  is  satisfied 
if  such  appointments  are  made  from  among 
lieutenant  commanders,  irrespective  of  whether 
the  appointees  were  formerly  chief  engineers  or 
not.  Accordingly,  held  that  an  officer  of  the 
Navy  who,  on  March  3,  1899,  belonged  to  the 
grade  of  passed  assistant  engineer  with  the 
relative  rank  of  lieutenant,  and  who  was  sub- 
sequently promoted  to  the  grade  of  lieutenant- 
commander  and  thereafter  designated  an  engi- 
neer of  the  fleet,  is  entitled  to  pay  at  the  rate  of 
$4,400  per  annum  while  performing  such  duty, 
under  authority  of  section  1556,  Revised  Stat- 
utes.    (9  Comp.  Dec,  301.) 

Retired  officer  eligible  for  appointment 
as  fleet  engineer. — A  retired  officer  of  the 
Navy  is  "in  the  service  "  within  the  meaning  of 
section  1393,  and  therefore  eligible  for  assign- 
ment to  said  duties.  A  lieutenant-commander 
in  the  Navy  who  was  retired  with  the  rank  of 
commander  and  afterwards  assigned  to  sea  duty 
under  the  act  of  June  /,  1900  (.31  Stat.,  703),  aa 
lleet  engineer,  was  entitled  while  serving  under 
that  assignment  to  the  pay  of  a  fleet  engineer, 
which  is  $4,400  per  annum.  (12  Comp.  Dec, 
185;   compare   25  Op.  Atty.  Gen.,  508,  noted 


under  sec.  1390,  R.  S.;  see  also  not(^  to  sec. 
1462,  R.  S.) 

Appointment  does  not  require  advice 
and  consent  of  the  Senate. — Section  1393, 
Revised  Statutes,  authorizes  the  President  to 
appoint  an  engineer  of  the  fleet;  the  consent  of 
the  Senate  not  having  been  required  by  Con- 

fress,  such  consent  is  unnecessary,  and  the 
'resident  may  make  such  appointment  with- 
out submitting  the  same  to  the  Senate  for  con- 
firmation._   (22  Op.  Atty.  Gen.,  82.) 

It  is  universally  true  that  when  Congress,  in 
pursuance  of  its  authority  imder  the  provision 
of  the  Constitution  (Art.  II,  sec.  2,  clause  2), 
sees  fit  to  give  the  sole  power  of  appointment  to 
the  President,  it  does  so  by  language  appropri- 
ate to  that  end,  such  as  the  imqualified  phrase 
"may  appoint."  Under  such  language  the 
President  is  vested  with  power  of  appointing 
alone.     (23  Op.  Atty.  Gen.,  136.)    _ 

For  other  cases,  see  note  to  Constitution,  Art. 
II,  sec.  2,  clause  2,  under,  "II.  Constitutional 
power  of  appointment." 

Section  1393  is  rather  permissive  of  a 
power  that  existed  in  the  President  to  designate 
fleet  engineers  when  in  his  judgment  they  be- 
come necessary,  though  said  section  carries 
with  it  the  right  to  the  additional  compensation 
provided  for  by  section  1556.  The  necessity 
for  the  appointment  of  a  fleet  engineer  must  be 
left  to  the  discretion  of  the  President,  and  when 
he  acta  the  presumption  is  that  he  has  per- 
formed his  duty  according  to  law.  (Denig  v. 
U.  S.,  37  Ct.  Cls.,  383,  393.) 

Secretary  of  the  Navy  acts  for  the  Presi- 
dent.— The  provision  of  the  statute  is  satisfied 
when  the  Secretary  of  the  Navy,  acting,  as  he 
does  in  such  matters,  for  the  President,  ap- 
proves the  designation  of  officers  selected  by  a 
commander  in  chief  to  act  as  his  general  staff. 
(Denig  v.  U.  S.,  37  Ct.  Cls.,  383,  391.  See  also 
note  to  sec.  1382,  R.  S.) 

Under  sections  1373,  1382,  and  1393,  Revised 
Statutes,  which  authorize  the  designation  and 
appointment  by  the  President  of  certain  officers 
of  the  fleet,  officers  designated  and  appointed 
by  an  order  of  the  commander  in  chief  of  a 
naval  force,  approved  by  the  Secretary  of  the 
Navy,  are  entitled  to  the  pay  provided  for 
those  positions,  respectively,  from  the  date  of 
such  approval.    (5  Comp.  Dec,  888.) 

Chief  of  Bureau  of  Navigation  does  not 
act  for  the  President. — An  officer  ordered  by 
the  Chief  of  the  Bm-eau  of  Navigation  to  duty 
as  fleet  engineer  is  not  entitled  to  the  pay  pro- 
vided by  section  1556,  Revised  Statutes,  for  fleet 
engineers.  To  entitle  an  officer  to  the  pay  of 
fleet  engineer,  such  designation  must  be  made 
by  the  Secretary  of  the  Navy  acting  for  the 
President.  There  is  no  authority  for  the  Chief 
of  the  Bureau  of  Navigation  to  act  for  the  Presi- 
dent in  making  such  designation.  (Comp. 
Dec,  Feb.  14, 1912,  132  S.  and  A.  Memo.,  1994. 
See  also  Truitt  v.  U.  S.,  38  Ct.  Cls.,  398,  and 
Weller  v.  U.  S.,  41  Ct.  Cls.,  324,  336,  noted 
under  sec.  158,  R.  S.) 

Commander  in  chief  acts  for  President 
when  authorized  by  Navy  Regulations. — 
The  statute  requires  the  appointment  to  be 
made  by  the  President.  However,  the  Navy 
Regulations  of  1900  (par.  2  of  art.  367),  provide 


500 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1395. 


that  "when  not  designated  by  the  department, 
the  senior  engineer,  medical,  pay,  and  marine 
officers  of  the  fleet  or  squadron  may  be  detailed 
by  the  commander  in  chief  to  act  as  fleet  staff 
officers. ' '  The  Navy  Regulations  are  issued  by 
the  authority  of  the  President.  The  above  pro- 
vision must  therefore  be  construed  as  authority 
from  him  to  the  commander  in  chief  of  a  naval 
force,  under  certain  conditions,  to  designate  cer- 
tain officers  to  act  as  fleet  officers,  and  the  action 
of  the  commander  in  chief  in  pursuance  of  the 
regulation  becomes  the  action  of  the  President. 
TVliere  the  designation  of  an  engineer  of  the 
fleet  was  made  in  accordance  with  the  above 
regulation,  he  is  entitled  to  the  pay  of  fleet  engi- 
neer from  the  date  of  his  designation  as  such;  if 
not,  the  beginning  of  such  pay  dates  from  the 
time  when  his  designation  was  approved  by  the 
department.  (9  Comp.  Dec,  301,  citing  5 
Comp.  Dec,  889.)  [Art.  367  (2)  Navy  Regs., 
1900,  was  embodied  in  Navy  Regulations,  1913, 
ae  art.  R-1826  (2),  except  that  the  latter  article 
did  not  authorize  the  commander  in  chief  to 
designate  the  senior  engineer  as  a  fleet  staff 
officer,  the  engineer  of  the  fleet  under  said 
Regulations  not  being  a  member  of  the  fleet 
staff,  but  instead,  under  arts.  R-1816,  1817, 
being  made  a  member  of  the  personal  staff  of 
the  commander  in  chief.  By  changes  in  Navy 
Regulations  and  Instructions,  No.  6,  of  Apr.  15, 


1916,  the  designations  "personal"  staff  and 
"fleet  staff"  were  abolished.] 

The  duties  of  a  fl.eet  engineer,  as  defined 
by  Naval  Instructions,  are  duties  relating  to  the 
vessels  of  a  fleet,  in  connection  with  their  stores, 
engines,  boilers,  machinery,  etc.,  and  the  exer- 
cise of  supervision  over  the  other  engineer  offi- 
cers of  the  fleet,  rather  than  duties  of  a  pecu- 
liarly confidential  and  personal  nature  to  the 
commander  in  chief;  and  are  not  in  themselves 
of  a  character  for  the  performance  of  which  the 
law  confers  additional  pay  aa  aid.  (Comp. 
Dec,  June  10,  1914,  160  S.  and  A.  Memo.,  3256; 
see  also  act  May  13,  1908,  35  Stat.,  128,  as  to 
pay  of  aids  to  rear  admirals.) 

An  engineer  of  the  fleet  is  a  member  of  the 
fleet  staff  of  a  flag  officer,  and  as  such  has  special 
duties  to  perform,  in  consideration  of  which  he 
receives  increased  pay.  The  position  is  some- 
what analogous  in  this  respect  to  that  of  aid, 
who  is  a  member  of  the  personal  staff  of  the  flag 
officer,  and  who  receives  additional  pay  for  the 
additional  services  performed  as  such.  (12 
Comp.  Dec,  185.)  [Under  Navy  Regulations, 
1913,  the  fleet  en^eer  was  not  a  member  of  the 
fleet  staff,  but  of  the  personal  staff  of  the  flag 
officer.  By  changes  in  Navy  Regulations  and 
Instructions,  No.  6,  of  Apr.  15,  1916,  the  desig- 
nations "personal"  staff  and  "fleet  staff"  were 
abolished.] 


1394.  [Engineer   Corps;  appointments  from  cadet  engineers.     Super- 


Sec, 
seded.] 

This  section  provided  as  follo"ws: 

"Sec.  1394.  Cadet  engineers  who  are  gradu- 
ated with  credit  in  the  scientific  and  mechan- 
ical class  of  the  Naval  Academy  may,  upon  the 
recommendation  of  the  academic  board,  be  ap- 
pointed by  the  President  and  confirmed  by 
the  Senate  as  second  assistant  engineers." — (31 
Aug.,  1842,  c  279,  s.  6,  v.  5,  p.  577;  4  July, 
1864,  c  252,  B.  2,  v.  13,  p.  393-  24  Feb.,  1874, 
c.  35,  V.  18,  p.  17.) 

It  was  amended  by  act  of  February  24, 1874, 
section  1  (18  Stat.,  17),  which  changed  the  title 
of  second  assistant  engineer  to  "assistant  engi- 
neer." 

It  was  superseded  by  act  of  August  5,  1882 
(22  Stat.,  285),  which  provided  that  thereafter 
no  appointments  of  cadet-engineers  should  be 
made  to  the  Naval  Academy,  but  that  all  under- 
graduates at  the  Academy  should  be  styled 
naval  cadets,  and  final  graduates  of  the  acad- 
emy should  be  appointed  to  the  line  and  Engi- 
neer Corps  of  the  Navy,  and  to  the  Marine 
Corps,  as  necessary  to  fill  vacancies. 

Said  act  was  in  turn  superseded  by  act  of 
March  2,  1889  (25  Stat.,  878),  which  made  pro- 
vision for  separating  students  at  the  Naval 
Academy  into  a  "line  and  Marine  Corps  divi- 
sion," and  an  "Engineer  Corps  division,"  and 
provided  that  "the  vacancies  in  the  lowest 
grades  of  the  commissioned  officers  of  the  Engi- 
neer Corps  of  the  Navy"  should  be  filled  "by 
appointments  from  the  final  graduates  of  the 
engineer  division  at  the  end  of  their  six  years' 

Sec.  1395.  [Chaplains;  number  and  appointment  of.]  There  shall  be  in  the 
Navy,  for  the  pubUc  armed  vessels  of  the  United  States  m  actual  service  not 
exceeding  twenty-four  chaplains,  who  shall  be  appointed  by  the  President 


course,"  and  that  "if  the  number  of  vacancies 
in  the  lowest  grades  aforesaid,  occurring  in  any 
year  shall  be  greater  than  the  number  of  final 
graduates  of  that  year,  the  surplus  vacancies 
shall  be  filled  from  the  final  graduates  of  fol- 
lowing years,  as  they  shall  become  available." 

The  latter  act  was  amended  by  act  of  July 
26,  1894  (28  Stat.,  124),  which  provided  that, 
in  case  the  number  of  vacancies  in  the  grade  of 
assistant  engineer  should  exceed  the  number  of 
naval  cadets  in  the  engineer  division  of  the 
class  finally  graduated  in  any  one  year,  the 
Secretary  of  the  Navy  should  select  a  number 
equal  to  such  excess  from  the  final  graduates  of 
said  class  in  the  line  di\dsion,  and  such  final 
graduates  should  be  appointed  to  fill  vacancies 
in  the  grade  of  assistant  engineer. 

The  appointment  of  cadet  engineers  to 
the  Naval  Academy  was  authorized  by  section 
1522,  Revised  Statutes.  ^  The  act  of  August  5, 
1882,  above  noted,  prohibited  further  appoint- 
ments of  cadet-engineers  and  changed  the  title 
of  all  undergraduates  at  the  Naval  Academy  to 
"naval  cadets."  This  title  of  naval  cadet  was 
changed  to  "midshipman"  by  act  of  July  1, 1902 
(32  Stat.,  686). 

The  Engineer  Corps  w^as  abolished  by 
the  Navy  personnel  act  of  March  3,  1899,  noted 
above,  under  section  1390,  Re\'ised  Statutes. 

See  section  1521,  Revised  Statutes,  and 
U.  S.  f.  Redgrave  (116  U.  S.,  474),  in  which 
this  section  was  cited. 


501 


Sec.  1397. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


with  the  advice  and  consent  of  the  Senate. — (21  Apr.,  1806,  c.  35,  s.  3,  v.  2, 
p.  390.  16  Apr.,  1814,  c.  58,  s.  5,  v.  3,  p.  125.  4  Aug.,  1842,  c.  121,  s.  1,  v. 
5,  p.  500.) 


Amendment  to  this  section  was  made  by  act  of 
June  30,  1914  (38  Stat.,  403),  which  created 
the  grade  of  acting  chaplain  in  the  Na\^ 
and  pro^dded  that  "hereafter  the  total 
number  of  chaplains  and  acting  chaplains 
in  the  Navy  shall  be  one  to  each  twelve 
hundred  and  fifty  of  the  total  personnel  of 
the  Navy  and  Marine  Corps  as  fixed  by  law, 
including  midshipmen,  apprentice  seamen, 
and  naval  prisoners."  The  same  act  pro- 
\rided  that  "original  appointments"  should 
be  made  by  the  Secretary  of  the  Navy  in 
the  grade  of  acting  chaplain,  and  that  acting 
chaplains  should  be  commissioned  as  chap- 
lains after  three  years'  sea  service,  and  after 
successfully  passing  the  prescribed  exami- 
nation. '^Provided,  That  not  more  than 
seven  acting  chaplains  shall  be  commis- 
sioned chaplains  in  any  one  year."     The 


act  of  May  22,  1917  (40  Stat.,  85),  as 
amended  By  act  of  July  1,  1918  (40  Stat., 
715),  which  temporarily  increased  the  per- 
sonnel of  the  Navy,  provided  (sec.  4)  that 
''temporary  chaplains  and  temporary  act- 
ing chaplains  in  the  Navy  may  be  ap- 
pointed for  service  during  the  period  of 
the  war  in  the  proportion  of  the  personnel 
of  the  Navy  as  now  prescribed  by  existing 
law." 

Pay  of  chaplains:  See  act  of  August  29,  J 916 
(39  Stat.,  581),  providing  that  "  hereafter 
all  commissioned  officers  of  the  active  list 
of  the  Navy  shall  receive  the  same  pay 
and  allowances  according  to  rank  and 
length  of  service."  (See  also  note  to  sec. 
1556,  R.  S.) 

Rank  of  chaplains:  See  act  of  June  30,  1914 
(38  Stat.,  403). 


Sec.  1396.  [Chaplains;  qualifications  of.]  A  chaplain  shall  not  be  less 
than  twenty-one  nor  more  than  thirty-five  years  of  age  at  the  time  of  his 
appointment. — (14  July,  1862,  c.  164,  s.  7,  v.  12,  p.  565.) 


Amendment  to  this  section  was  made  by  act  of 
June  30,  1914  (38  Stat.,  403),  which  pro- 
vided that  chaplains  should  be  commis- 
sioned from  acting  chaplains  who  shall  have 
had  three  years'  sea  service,  and  shall  have 
established  their  physical,  mental,  moral, 
and  professional  fitness  to  the  satisfaction 
of  the  Secretary  of  the  Navy  by  examina- 
tion by  a  board  of  chaplains  and  medical 
officers  of  the  Navy. 
Temporary  chaplains  and  temporary  acting 
chaplains  appointed  for  war  service  in 
accordance  with  act  of  May  22,  1917,  sec- 
tion 5  (40  Stat.,  85),  as  amended  by  act  of 
July  1,  1918  (140  Stat.,  716),  shall  be  not 
more  than  50  years  of  age.  Special  age 
limits  were  also  prescribed  for  officers 
transferred  to  the  Regular  Na\'y  from  the 
temporary  Navy  and  Naval  Reserve  Force, 
by  act  of  June  4,  1920,  section  5  (41  Stat., 
835). 
Age  of  candidates  for  appointment. — See 
cases  noted  under  section  1370,  Revised  Stat- 
utes. 


The  act  of  June  30,  1914,  does  not  prescribe 
the  age  limit  of  appointees  as  acting  chaplains. 
Section  1396,  Revised  Statutes,  prescribes  that 
chaplains  on  the  date  of  appointment  as  such 
shall  be  between  the  ages  of  21  and  35  years, 
and  not  being  specifically  repealed,  and  not 
being  in  conflict  with  the  act  of  1914,  still 
governs  appointments  to  the  grade  of  chaplain. 
If,  after  serving  at  least  three  years  in  the  grade 
of  acting  chaplain,  appointees  as  chaplains  must 
be  between  the  ages  of  21  and  35  years,  the  act 
of  1914  impliedly  requires  that  appointees  as 
acting  chaplains  shall  be  of  such  an  age  at  the 
time  of  appointment  that  when  they  have 
served  at  sea  as  acting  chaplains  for  at  least 
three  years  it  will  be  possible  for  them  to 
qualify  under  the  terms  of  section  1396  for 
appointment  as  chaplains.  (File  15721-7, 
Aug.  31,  1914.) 

The  Secretary  of  the  Navy  has  instructed  that 
acting  chaplains  at  the  time  of  appointment  as 
such  shall  be  between  the  ages  of  21  and  31^ 
years.     (File  15721-15,  Feb.  11,  1918.) 


Sec.  1397.  [Chaplains;  form  of  worship.]  Every  chaplain  shall  be  permitted 
to  conduct  pubHc  worship  according  to  the  manner  and  forms  of  the  church 
of  which  he  may  be  a  member. — (1  June,  1860,  c.  67,  s.  1,  v.  12,  p.  24.) 


Commanders  of  vessels  and  naval  stations  to 
which  chaplains  are  attached  shall  cause 
divine  service  to  be  performed  on  Sunday 
whenever  the  weather  and  other  circum- 
stances allow  it  to  be  done.  (Sec.  1624, 
R.  S.,  art.  2.) 

Officers,  seamen,  and  others  in  the  naval  service 
are  earnestly  recommended  diligently  to 
attend  at  every  performance  of  the  worship 
of  Almighty  God.     (Sec.  1624,  R.  S.,  art.  2.) 

Students  at  Naval  Academy  not  to  pursue 
studies  on   Sunday.     (Sec.   1526,   R.  S.) 


General  courts-martial  are  enjoined  to  sit 
from  day  to  day  "Sundays  excepted." 
(Sec.  1624,  R.  S.,  art.  45.)  Unnecessary 
work  on  Sundays  by  persons  under  naval 
jurisdiction  is  prohibited  by  Naval  In- 
structions, 1913  (art.  86),  and  General 
Order  No.  456,  March  15,  1919.  _ 
Unbecoming  behavior  during  divine  service 
shall  be  punished  as  a  general  or  summary 
court-martial  may  direct.  (Sec.  1624, 
R.  S.,  art.  3.) 


502 


Tlie  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1400. 


Sec.  1398.  [Chaplains;  annual  report  by.]  Chaplains  shall  report  annually 
to  the  Secretary  of  the  Navy  the  official  services  performed  by  them. — (1  June, 
1860,  c.  67,  s.  1,  V.  12,  p.  24.) 


(Sec.  101,  Criminal  Code,  act  Mar.  4,  1909, 
35  Stat.,  1107.) 


Neglect  or  refusal  of  any  officer  to  make  any  re- 
port within  the  time  prescribed  by  law  is 
punishable  by  fine  of  not  more  than  $1,000. 

Sec.  1399.  [Professors  of  Mathematics,  number  of.]  The  number  of  pro- 
fessors of  mathematics  in  the  Navy  shall  not  exceed  twelve. — (3  Aug.,  1848, 
c.  121,  s.  12,  V.  9,  p.  272.     31  May,  1872,  c.  240,  s.  1,  v.  17,  p.  192. 

"Hereafter  no  further  appointments  shall  be 
made  to  the  corps  of  professors  of  mathe- 
matice,  and  that  corps  shall  cease  to  exist 
upon  the  death,  resignation,  or  dismissal  of 
the  officers  now  carried  in  that  corps  on  the 
active  and  retired  lists  of  the  Navy." 
(Act  Aug.  29,  lOlfr,  39  Stat._,  577.) 
Rank  of  professors  of  mathematics:  See  section 
1480,  Revised  Statutes. 

Historical  note. — The  act  of  August  3, 1848, 
section  12  (9  Stat.,  272),  provided,  "That  the 
number  of  professors  of  mathematics  in  the 
Navy  shall  not  exceed  twelve;  that  they  shall 
be  appointed  and  commissioned  by  the  Presi- 
dent of  the  United  States,  by  and  with  the  ad- 
vice and  consent  of  the  Senate,  and  shall  per- 
form such  duties  as  may  be  assigned  them  by 
order  of  the  Secretary  of  the  Navy,  at  the  Naval 
School,  the  Ob8er\'atory,  and  on  board  ships  of 
war,  in  instructing  the  midshipmen  of  the  Navy 
or  otherwise." 

The  act  of  May  21,  1864,  section  3  (13  Stat., 
85),  provided,  '"that  there  shall  be  added  three 
professors  to  the  number  of  professors  of  mathe- 
matics now  authorized  by  law,  who  shall  be 
appointed  and  commissioned  as  now  pro^dded 
by  law,  and  who  shall  be  a  professor  of  ethics 
and  English  studies,  a  professor  of  Spanish,  and 
a  professor  of  drawing,  at  the  Naval  Academy." 

By  act  of  April  17,  1866,  section  7  (14  Stat., 
38),  it  was  provided  ' '  that  hereafter  no  vacancy 
in  the  grade  of  professor  of  mathematics  in  the 
Navy  shall  be  filled." 

The  act  of  May  31,  1872  (17  Stat.,  192),  pro- 
vided that  "there  shall  be  three  professors  of 
mathematics  who  shall  have  the  relative  rank 
of  captain;  four  that  of  commander;  and  five 
that  of  lieutenant  commander  or  lieutenant." 

The  act  of  1848,  with  reference  to  the  number 
of  professors  of  mathematics,  is  embodied  in 
section  1399  Re-\dsed  Statutes;  the  act  of  1864, 
concerning  additional  professors  for  duty  at  the 
Naval  Academy,  is  embodied  in  section  1528, 
Revised  Statutes;  and  the  act  of  1872,  confer- 
ring relative  rank  upon  twelve  professors  of 
mathematics,  was  carried  into  the  Revised 
Statutes  as  section  1480. 

[The  inteqiretation  of  these  sections  of  the 
Revised  Statutes  has  been,  in  practice,  that 
section  1399  limits  the  total  number  of  professors 


of  mathematics  to  twelve;  and  that  section  1528 
relates  to  the  assignment  to  duty  of  three  of 
these  twelve  professors  of  mathematics.] 

The  appointment  of  additional  profes- 
sors of  mathematics  has  been  authorized  in 
specific  cases  as  follows: 

By  act  of  April  27, 1904  (33  Stat.,  345),  the  ap- 
pointment was  authorized  of  a  professor  of 
mathematics  of  the  rank  of  commander,  "to  be 
an  extra  number  in  the  list  of  professors  of 
mathematics  in  the  Navy." 

By  act  of  June  29, 1906  (34  Stat.,  579),  the  ap- 
pointment was  authorized  of  "two  additional 
professors  of  mathematics  in  the  Navy,  who 
shall  be  extra  numbers  in  said  list." 

By  act  of  May  6, 1910  (36  Stat.,  352),  the  ap- 
pointment was  authorized  of  a  particular  indi- 
vidual (Guy  K.  Calhoun)  "as  additional  pro- 
fessor of  mathematics  in  the  Navy,  as  an  extra 
niimber." 

By  act  of  March  4,  1913  (37  Stat.,  906),  the  ap- 
pointment was  authorized  of  two  particular 
individuals  (Nathaniel  Matson  Terry  and  Wil- 
liam Woolsey  Johnson)  as  "professors  in  the 
corps  of  professors  of  mathematics  in  the  Navy 
with  the  rank  of  lieutenant  as  extra  numbers 
not  in  the  line  of  promotion,"  and  it  was  further 
provided  that  in  these  cases  "limitations  as  to 
age  at  the  time  of  appointment  shall  not  apply 
nor  shall  age  constitute  a  claim  for  retirement." 
["Limitations  as  to  age"  for  appointment  as 
professor  of  mathematics  are  not  fixed  by  any 
law,  other  than  that  prescribing  the  age  for 
retirement  of  officers.  See  note  to  section  1444, 
Re\-ised  Statutes.] 

Increases  in  number  of  professors  of 
mathematics  not  favored. — The  Na\y  De- 
partment considers  it  inadvisable  to  make  any 
further  increase  in  the  corps  of  professors  of 
mathematics.  There  is  no  need  for  such  in- 
crease, either  at  the  Naval  Academy  or  for  the 
service  at  large.  There  are  already  certain  addi- 
tional professors  of  mathematics,  some  of  whom 
are  on  duty  at  the  Naval  Academy,  and  the 
policy  of  the  department  is  to  reduce  to  a  mini- 
mum the  niunber  of  instructors  at  the  academy 
who  are  not  seagoing  naval  officers.  (File 
26289-11,  Dec.  17,  1911.  See  note  to  sec.  1401, 
R.  S.  and  see  act  of  Aug.  29,  1916,  noted 
above.) 


Sec.  1400.    [Professors  of  mathematics ;  appointment  of.     Obsolete.] 


This  section  provided  as  follows: 

"Sec  1400.  Professors  of  mathematics  shall 
be  appointed  and  conamissioned  by  the  Presi- 
dent of  the  United  States,  by  and  with  the  ad- 
vice and  consent  of  the  Senate." — (3  Aug.,  1848, 
c.  121,  6.  12,  V.  9,  p.  272.) 


It  is  rendered  obsolete  bv  the  act  of  August 
29,  1916  (39  Stat.,  577),  quoted  under  section 
1399,  Revised  Statutes. 

Appointments  as  professors  of  mathe- 
matics were  prohibited  unless  appointees  had 
passed  a  physical  examination  before  a  board 


503 


Sec.  1401. 


PL  i\  REVISED  STATUTES. 


The  Navy. 


of  naval  Burgcone  and  a  profcesional  examina- 
tion before  a  board  of  proieesors  of  mathematics 
in  the  Navy,  and  received  a  favorable  report 
from  eaid  boarde.  (Act  Jan.  20,  1881,  21  Stat., 
317.  See  17  Op.  Atty.  Gen.,  103,  noted  under 
sec.  1101,  R.  S.) 

See  note  to  section  1528,  Revised 
Statutes,  concerning  civilian  professors  at  the 
iS'aval  Academy. 

Civilian  professors  not  entitled  to  prefer- 
ence in  appointment. — Section  1528,  Revised 
Statutes,  does  not  entitle  civiUan  professors  of 
English,  Spanish,  and  drawing  at  the  Naval 
Academy  to  be  promoted  as  a  matter  of  right  to 
the  dorps  of  professors  of  mathematics,  for 
assignment  to  these  subjects.  The  contention 
that  the  appointing  power  is  thus  restricted  in 
ita  selection  to  the  civilian  professors  serving  at 
the  academy  is  without  support  in  the  law 
or  the  practice  of  the  Navy  Department  ex- 
tending through  a  long  period  of  years.  Ac- 
cordingly, held  thait  a  vacancy  existing  in  the 
regular  corps  of  professors  of  mathematics  in  the 
Navy  may  be  filled  by  the  appointment  of  any 
candidate  possessing  the  necessary  qualifica- 
tions, and  that  no  person  can  claim  that  he  is 
entitled  to  be  appointed  thereto  as  a  matter  of 
law.    (File  26289-11,  Dec.  17,  1911.) 

The  provisions  of  section  1528,  Revised 
Statutes,  concerning  the  assignment  of  three 
professors  of  mathematics  to  special  duty,  re- 
lates to  the  performance  of  duty  by  such  pro- 
fessors after  appointment,  and  does  not  pur- 
port to  restrict  the  appointing  power  in  the 
matter  of  filling  vacancies.  (File  26289-11, 
Dec.  17,  1911.) 

Candidate  must  qualify  physically  for 
general  duty. — A  candidate  for  appointment 


as  professor  of  mathematics  to  fill  a  vacancy 
in  said  corps  was  found  by  the  board  of  medical 
examiners  "physically  qualified  to  perform  all 
his  duties  as  professor  of  mathematics,  U.  S. 
Navy,  for  duty  in  coimection  with  instruction 
in  drawing  at  the  Naval  Academy,  AnnapolLs, 
Md."  Held,  that  such  a  qualified  finding  is 
erroneous  and  irregular.  Should  the  candidate 
be  appointed  he  W(mld  be  commissioned  as 
an  officer  of  the  Navy  and  be  subject  to  all  the 
laws  and  regulaticms  governing  commissioned 
officers,  including  the  benefit  of  the  retirement 
laws  and  the  provisions  of  section  1401,  Re- 
vised Statutes,  relating  to  the  duties  to  which 
professors  of  mathematics  may  be  assigned. 
The  duty  to  be  assigned  this  particular  indi- 
vidual, should  he  be  commissioned,  is  not  a 
question  which  the  board  of  medical  examiners 
is  authorized  to  consider  in  connection  with 
his  physical  qualifications  for  appointment. 
The  finding  of  the  board  in  this  case,  if  ap- 
proved, might  be  construed  as  a  restriction 
upon  the  department  in  exercising  its  discre- 
tion in  the  matter  of  assignment  to  duty  of  the 
candidate  after  his  appointment  and  commis- 
sioning as  a  professor  of  mathematics  of  the 
Navy.  Such  a  condition  of  affairs  would  oper- 
ate as  a  dangerous  precedent  in  making  the 
assignment  to  duty  of  officers  of  the  corps  of 
professors  of  mathematics  permanent,  would 
have  the  practical  effect  of  reducing  the  num- 
ber of  officers  of  that  corps  who  would  be  avail- 
able for  the  duty  contemplated  by  law  and  by 
regulations,  and  would  be  in  contravention  of 
the  existing  laws  and  regulations.  (File  26289- 
13:2,  Aug.  3  and  July  28,  1913.) 


Sec.  1401.  [Professors  of  mathematics;  duties  of.]  Professors  of  mathe- 
matics shall  perform  such  duties  as  may  be  assigned  them  by  order  of  the  Secre- 
tary of  the  Navy,  at  the  Naval  Academy,  the  Naval  Observatory,  and  on 
board  ships  of  war,  in  instructing  the  midshipmen  of  the  Navy,  or  otherwise. — 
(3  Aug.,  1848,  c.  121,  s.  12,  v.  9,  p.  272.) 


Nautical  Almanac:  Secretary  of  the  Navy  may 
place    the    supervision    of    the    Nautical 
Almanac  in  charge  of  any  officer  or  pro- 
fessor of  mathematics  in  the  Navy  who  is 
competent    for    that    service.     (Sec.   436, 
R.  S.) 
Naval  Academy:  Three  professors  of  mathe- 
matics shall  be  assigned  to  duty  at  the 
Naval  Academy,  one  as  professor  of  ethics 
and  English  studies,  one  as  professor  of  the 
Spanish  language,  and  one  as  professor  of 
drawing.     (Sec.  1528,  R.  S.) 
Assignment  to  duty  governed  by  tliis 
section. — \Miile  the  law  provides  that  "three 
professors  of  mathematics  shall  be  assigned  to 
duty  at  the  Naval  Academy,  one  as  professor  of 
ethics  and  English  studies,    one  as  professor  of 
the  Spanish  language,  and  one  as  professor  of 
drawing"  (sec.  1528,  R.S.),  it  is  also  provided  by 
another  section  of  the  Revised  Stftutes  (sec. 
1401)  that  "professors  of  mathematics  shall  per- 
form such  duties  as  may  be  assigned  them  by 
order  of  the  Secretary  of  the  Navy,  at  the  Naval 
Academy,  the  Naval  Observatory,  and  on  board 


ships  of  war,  in  instructing  the  midshipmen  of 
the  Navy,  or  otherwise."  Under  the  contempo- 
raneous and  long  continued  construction  of  the 
Navy  Department,  the  former  provision  has  been 
treated  as  advisory  and  not  mandatory.  (File 
26289-11,  Dec.  17,  1911;  see  also  note  to  sec. 
1400,  R.  S.;  and  see  notes  to  Constitution,  Art. 
I,  sec.  8,  clause  14,  under  "I.  General  powers  of 
Congress  and  President,"  and  Art.  II,  sec.  2, 
clause  1,  under  "I.  Powers  of  Commander  in 
Chief." 

"Professors  of  mathematics"  a  mis- 
nomer; duties  not  necessarily  mathe- 
matical.— The  heads  of  the  departments  of 
ethics  and  English  studies,  of  Spanish  and 
other  modern  languages,  and  of  d  rawing,  at  the 
Naval  Academy,  should,  although  the  title  is 
a  misnomer,  be  commissioned  as  "professors  of 
mathematics"  (sec.  1528,  R.  S.),  after  passing 
the  examinations  required  by  the  act  of  Janu- 
ary 20,  1881  (21  Stat.,  317).  The  purpose  of 
section  1528,  that  persons  known  to  the  law  and 
the  naval  register  as  "professors  of  mathe- 
matics" should  be  engaged  in  teaching  these 


504 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1402. 


other  branches  of  learning,  is  too  obvious  for 
construction.  That  the  name  did  not  indicate 
the  sole  duty  of  the  office  is  further  apparent 
from  the  express  declaration  of  the  act  of 
August  3,  1848,  section  12  (now  sees.  1399- 
1401,  R.  S.),  "that  the  number  of  professors  of 
mathematics  in  the  Navy  shall  not  exceed 
twelve ;  that  they  shall  be  appointed  and  com- 
missioned by  the  President  of  the  United  States 
by  and  with  the  advice  and  consent  of  the 
Senate,  and  shall  perform  such  duties  as  may  he 
assigned  them  by  order  of  the  Secretary  of  the 
Navy  at  the  naval  school,  the  observatory,  and 
on  board  ships  of  war,  or  otherwise.'"  Section 
1528,  ReWsed  Statutes,  shows  that,  certainly  as 
to  three  of  these  professors,  the  duties  to  be 
assigned  them  were  not  to  be  mathematical  in 
their  nature.     (17  Op.  Atty.   Gen.,   103.) 

Policy  of  the  Navy  Department. — In 
practice  the  policy  of  the  Navy  Department 
has  been  to  secure  seagoing  officers  as  instruc- 
tors at  the  Naval  Academy,  and  to  reduce  to  a 
minimum   the   number  of  instructors  at   the 


Academy  who  are  not  seagoing  naval  officers; 
and  for  this  reason  it  has  been  considered  inad- 
visable to  make  any  further  increase  in  the 
corps  of  professors  of  mathematics.  (File 
26289-11,  Dec.  17,  1911.)  [But  see  provision 
in  naval  appropriation  actfe,  under  "Naval 
Academy,"  that  "no  part  of  any  sum  in  this 
act  appropriated  shall  be  expended  in  the  pay 
or  allowances  of  any  commissioned  officer  of 
the  Navy  detailed  for  duty  as  an  instructor  at 
the  United  States  Naval  Academy  to  perform 
duties  which  were  performed  by  civilian  in- 
structors on  January  first,  nineteen  hundred 
and  thirteen."  This  was  contained  in  the 
naval  appropriation  acts  of  March  4,  1913  (37 
Stat.,  906),  June  30,  1914  (38  Stat.,  408),  March 
3,  1915  (38  Stat.,  947),  August  29,  1916  (39 
Stat.,  607),  and  March  4.  1917  (39  Stat..  1187). 
It  was  omitted  in  the  naval  appropriation  act 
of  July  1,  1918  (40  Stat.,  733).] 

See  act  of  August  29, 1916,  noted  under  section 
1399,  Revised  Statutes. 


Sec.  1402.  [Construction  Corps;  number  and  appointment  of  naval  con- 
structors.] The  President,  by  and  with  the  advice  and  consent  of  the  Senate, 
may  appomt  naval  constructors,  who  shall  have  rank  and  pay  as  officers  of 
the  Navy.— (25  July,  1866,  c.  231,  s.  7,  v.  14,  p.  223.  3  Mar.,  1871,  c.  117, 
s.  9,  V.  16,  p.  536.) 


Appointments  as  naval  constructors  are  to  be 
made  by  promotion  of  assistant  naval  con- 
structors who  have  had  not  less  than  eight 
nor  more  than  fourteen  years'  ser\ice  as 
assistant  naval  constructors.  (Act  Mar.  3, 
1899,  sec.  10,  30  Stat.,  1006.) 

Appointments  as  naval  constructors  are  to  be 
made  '  'from  the  highest  members  "  in  the 
Construction  Corps,  "according  to  sen- 
iority." (Sec.  1480,  R.  S..  as  amended  by 
act  Feb.  27,  1877,  19  Stat.,' 244.) 

Number  of  naval  constructors  and  assistant 
naval  constructors  on  the  active  list  was 
fixed  at  40  by  act  March  3,  1899,  section 
10  (30  Stat.,  1006).  This  number  was 
increased  by  act  July  1,  1902  (32  Stat., 
683),  which  authorized  the  appointment 
of  6  additional  assistant  naval  constructors. 
A  further  increase  was  made  by  act  March 
3,  1903  (32  Stat.,  1197),  which  authorized 
the  appointment  of  29  "additional  naval 
constructors  and  assistant  naval  con- 
structors, in  all  seventv-five."  By  act 
March  3,  1915  (38  Stat.,  945),  the  transfer 
was  authorized  to  the  grade  of  assistant 
naval  constructor  of  not  more  than  24 
line  officers  of  the  Navy,  making  a  total 
of  99  naval  constructors  and  assistant 
naval  constructors  authorized  by  law. 
(See  note  to  sec.  1403,  R.  S.)  Bv  act  of 
August  29,  1916  (39  Stat.,  576,  577),  it 
was  provided  that  "the  total  authorized 
number  of  commissioned  officers  of  the 
active  list  of  the  following  staff  corps, 
exclusive  of  commissioned  warrant  officers, 
shall  be  based  on  percentages  of  the  total 
number  of  commissioned  officers  of  the 
active  list  of  the  line  of  the  Navy  as 
follows:    *    *    *    Construction  Corps,  five 


per  centum.  *  *  *  The  total  number 
of  commissioned  officers  of  the  active  list  of 
the  following  mentioned  staff  corps  at  any 
one  time,  exclusive  of  cornmissioned 
warrant  officers,  shall  be  distributed  in  the 
various  grades  of  the  respective  corps  as 
follows:  *  *  *  Construction  Corps :  One- 
half  naval  constructors  mth  the  rank  of 
rear  admiral  to  eight  and  one-half  naval 
constructors  with  the  rank  of  captain,  to 
fourteen  naval  constructors  with  the  rank 
of  commander,  to  seventy-seven  naval 
constructors  and  assistant  naval  construc- 
tors with  rank  below  commander.  *  *  * 
When  there  is  an  odd  number  of  officers  in 
the  grade  or  rank  of  rear  admiral  in  the  line, 
or  in  each  corps,  the  lower  di\dsion  thereof 
shall  include  the  excess  in  number,  except 
where  there  is  but  one.  WTierever  a  final 
fraction  occurs  in  computing  the  authorized 
number  of  any  corps,  grade,  or  rank  in  the 
naval  8er\dce",  the  nearest  whole  number 
shall  be  regarded  as  the  authorized  number: 
Provided,  That  at  least  one  officer  shall  be 
allowed  in  each  grade  or  rank.  For  the 
purpose  of  determining  the  authorized 
number  of  officers  in  any  grade  or  rank  of 
the  line  or  of  the  staff  corps,  there  shall  be 
excluded  from  consideration  those  officers 
carried  by  law  as  additional  numbers,  in- 
cluding staff  officers  heretofore  permanently 
commissioned  with  the  rank  of  rear  admiral, 
and  nothing  contained  herein  shall  be  held 
to  reduce  below  that  heretofore  authorized 
by  law  the  number  of  officers  in  any  grade 
or  rank  in  the  staff  corps. ' '  The  temporary 
appointment  of  additional  officers  during 
the  period  of  the  existing  war  was  author- 
ized by  the  act  of  May  22,  1917,  section  4 


605 


Sec.  1403. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


(40  Stat.,  85),  as  amended  by  act  of  July 
1,  1918  (40  Stat.,  715),  which  also  author- 
izetl  temporary  appointments  and  promo- 
tions to  lill,  during  the  period  of  the  war, 
the  deficiency  existing  prior  to  May  22, 
1917,  in  the  total  number  of  commissioned 
officers  authorized  by  the  act  of  August 
29,  1916.  By  act  of  June  4,  1920  (41  Stat., 
834),  it  was  provided  ''that  the  number  of 
commissioned  oflicers  of  the  line,  perma- 
nent, temporary,  and  reserve  on  active 
duty  shall  not  exceed  4  per  centum  of  the 
total  authorized  enlisted  strength  of  the 
Regular  Navy,  and  the  number  of  staff 
officers  on  active  duty  of  whatever  kind 
shall  be  in  the  same  j^roportions  as  author- 
ized by  existing  law.  *  *  *  That  noth- 
ing herein  shall  l^e  construed  as  reducing 
the  permanent  commissioned  *  *  * 
strength  of  the  Regular  Navy  as  authorized 
by  existing  law." 

Pay  of  all  officers  of  the  Navy  is  prescribed  by 
act  of  May  13, 1908,  and  amendments,  noted 
under  section  1556,  Revised  Statutes. 

Rank  of  naval  constructors  is  fixed  by  act  of 
March  3,  1899,  section  10,  as  amended  by 
act  of  August  29,  1916  (39  Stat.,  577).  Ad- 
vancement in  rank  of  staff  officers,  up  to 
and  including  the  rank  of  lieutenant  com- 
mander, is  regulated  by  act  of  August  29, 
1916  (39  Stat.,  576).  Advancement  to  the 
ranks  of  commander,  captain,  and  rear 
admiral  in  the  Staff  Corps  of  the  Navy  are 
to  be  made  by  selection  upon  recommen- 
dation of  a  board  of  officers  of  the  corps 
concerned.  (Act  of  July  1, 1918,  40  Stat., 
718.) 

"Vacancies  in  the  Construction  Corps  shall  be 
filled  in  the  manner  now  prescribed  by 
law,  at  such  annual  rate  as  the  Secretary 
of  the  Navy  may  prescribe."  (Act  Aug. 
29,  1916,  39  Stat.,  577.) 


Number  not  to  be  increased  by  implica- 
tion.— It  will  be  observed  from  the  statutes 
that  in  legislating  with  respect  to  naval  con- 
structors Congress  has  been  very  careful  to 
limit  their  number.  The  number  thus  fixed 
by  law  should  not  be  increased  without  legisla- 
tion sufficiently  explicit  to  clearly  justify  it. 
WTien  Congress  has  seen  fit  to  make  increases 
in  the  numbers  of  officers  in  the  Navy,  either 

generally  or  in  particular  corps  or  grades,  it 
as  generally  used  specific  and  apt  language 
to  accomplish  that  object.  Accordingly,  held 
that  where,  in  accordance  with  law,  a  naval 
constructor  with  the  rank  of  captain,  who  had 
served  as  Chief  of  the  Bureau  of  Construction 
and  Repair,  with  the  rank  of  rear  admiral  and 
title  of  Chief  Constructor  while  so  serving, 
was  given  a  permanent  commission  with  the 
title  of  Chief  Constructor  and  the  rank  of  rear 
admiral,  and  continued  on  the  active  list  as 
such,  although  no  longer  Chief  of  the  Bureau 
of  Construction  and  Repair,  the  sole  purpose 
of  the  law  authorizing  such  action  was  to 
make  permanent  the  rank,  title,  and  emolu- 
ments which  this  officer  had  theretofore  tem- 
porarily held  as  chief  of  bureau,  and  that 
Congress  did  not  intend  thereby  to  increase 
the  number  of  officers  in  the  Construction 
Corps  of  the  Navy;  and  therefore  the  com- 
missioning of  this  ofiicer  as  a  Chief  Constructor 
in  the  Navy  with  the  rank  of  rear  admiral  did 
not  create  a  new  grade  in  the  Navy,  nor  did 
the  same  fact  create  a  vacancy  in  the  grade  of 
naval  constructor  with  the  rank  of  captain  or 
in  the  total  number  of  naval  constructors  and 
assistant  naval  constructors  as  provided  by 
law.  (28  Op.  Atty.  Gen.,  526.  The  act  of 
June  24,  1910,  36  Stat.,  607,  608,  providing 
for  the  issuance  of  permanent  commissions  to 
officers,  under  the  circumstances  in  this  case, 
as  Chief  Constructor  with  the  rank  of  rear 
admiral,  was  repealed  by  act  August  22, 1912,  37 
Stat.,  328.     See  note  to  sec.  421,  R.  S.) 

Sec.  1403.  [Construction  Corps;  appointment  of  assistant  naval  constructors.] 
Cadet  engineers  who  are  graduated  with  credit  in  the  scientific  and  mechanical 
class  of  the  Naval  Academy  may,  upon  the  recommendation  of  the  academic 
board,  be  immediately  appointed  as  assistant  naval  constructors. — (4  July, 
1864,  c.  252,  s.  2,  v.  13,  p.  393.) 


Amendment  to  this  section  was  made  by  act  of 
August  5,  1882  (22  Stat.,  285).  which  pro- 
vided that  thereafter  no  appointments  of 
cadet-engineers  shoidd  be  made  to  the 
Naval  Academy,  but  that  all  undergradu- 
ates at  the  Academy  should  be  styled 
"naval  cadets."  This  title  of  naval  cadet 
was  changed  to  "midshipman"  bv  act  of 
July  1,  1902  (32  Stat.,  686). 

Authority  is  given  the  Secretary  of  the  Navy  by 
section  1522,  Re\ised  Statutes,  to  make 
pro\ision  by  regulations  for  educating  at 
the  Naval  Academy  as  naval  constructors 
such  persons  as  may  show  a  pecuhar  apti- 
tude therefor,  and  to  afford  such  persons 
all  proper  facilities  for  such  a  "scientific 
mechanical  education  "  as  will  fit  them  for 
said  profession. 

Appointments  to  the  grade  of  assistant  naval 
constructor  may  be  made  by  transfer  from 


officers  of  the  line  of  the  Na\y  who  have 
had  not  less  than  three  years'  service  in  the 
grade  of  ensign  and  have  taken,  or  are 
taking,  satisfactorily,  a  post-graduate  course 
in  naval  architecture  under  orders  from  the 
Secretary  of  the  Naw;  the  total  increase 
in  the  nmnber  of  naval  constructors  and 
assistant  naval  constructors  by  reason 
of  such  transfers  not  to  exceed  24,  of  which 
not  more  than  5  may  be  made  in  any 
one  calendar  vear.  (Act  Mar.  3,  1915,  38 
Stat.,  945.)  By  act  of  August  29,  1916  (39 
Stat.,  577V  it  was  pro\'ided  that  "vacancies 
in  the  Construction  Corps  shall  be  filled  in 
the  manner  now  prescribed  by  law.  at  such 
annual  rate  as  the  Secretary  of  the  Navy^ 
may  prescribe,"  and  "that  hereafter 
ensigns  of  not  less  than  one  year's  service 
as  such  shall  be  eligible  for  transfer  to  the 
Construction  Corps." 


506 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1404. 


ByactofJuly9,1913(38Stat.,103),itisprovided 
that  "midshipmen  on  graduation  *  *  * 
may  be  assigned  by  the  Secretary  of  the 
Navy  to  fill  vacancies  in  the  lowest  com- 
missioned grades  of  the  *  *  *  staff 
corps  of  the  Na^'^^" 


Number  of  naval  constructors  and  assistant 
naval  constructors:  See  note  to  section 
1402,  Revised  Statutes. 

Rank  of  assistant  naval  constructors  is  fixed  by 
act  of  March  8,  1899,  section  10,  as  amended 
by  act  of  August  29,  1916  (39  Stat.,  577). 


Sec.  1404.  [Construction  Corps;  duties  of.     Superseded.] 


I 


This  section  provided  as  follows: 

"Sec.  1404.  Naval  constructors  may  be  re- 
quired to  perform  duty  at  any  navy  yard  or 
other  station." — (3  Mar.,  1845,  c".  77,  s.  2,  v.  5,  p. 
794.) 

It  was  superseded  by  the  following  pro- 
vision in  the  act  of  June  30,  1914  (38  Stat. ,  394), 
repeated  in  act  of  March  3,  1915  (38  Stat.,  930): 
<<  *  *  *  officers  of  the  Construction  Corps 
shall  be  eligible  for  any  shore  duty  compatible 
Avith  their  rank  and  grade  to  which  the  Secre- 
tary of  the  Navy  may  assign  them." 

"Line  oflBLcers  may  be  detailed  for  duty 
under  staff  oflB.cers  in  the  manufacturing  and 
repair  departments  of  the  navy  yards  and  naval 
stations,  and  all  laws  or  parts  of  laws  in  con- 
flict herewith  are  herebv  repealed . ' '  (Act  June 
24,  1910,  36  Stat.,  614.) 

Sea  duty. — "Naval  constructors  and  assist- 
ant naval  constructors  shall  when  practicable  be 
detailed  for  service  afloat  in  such  fleets  or  on 
such  repair  ships  as  the  department  may  desig- 
nate."    (Art.  R-3122,  Navy  Regs.,  1913.) 

General  nature  of  duties. — Naval  con- 
structors are  appointed  by  the  President  and 
have  rank  and  pay  as  officers  of  the  Na\'^',  and 
may  be  required  to  perform  duty  at  any  navy 
yard  or  other  station.  Their  duties  in  general 
are  to  haA^e  general  superintendence  and  charge 
of  the  construction  and  repair  of  all  ships,  and 
to  cause  thorough  examination  at  least  once  a 
month  of  all  ships  in  reserve  to  see  that  they  are 
carefullv  guarded  against  deterioration  or  de- 
cay.   (Stacker  v.  U.  S.,  39  Ct.  Cls.,  300.) 

Performance  of  duty  under  War  Depart- 
ment.— The  statute  creating  the  office  of  naval 
constructor  is  broad  enough  to  include  the  re- 
quirement of  service  on  vessels  in  the  employ- 
ment of  the  War  Department,  and  gives  the 
Government  the  right  to  demand  such  services 
when  required,  and  at  such  times  and  places 
as  may  seem  expedient;  and  this  right  is  not 
affected  by  the  omission  to  include  such  duty 
by  specific  mention  in  the  Navy  Regulations. 
(Stocker  v.  U.  S.,  39  Ct.  Cls.,  300.) 

Where  a  naval  constructor  is  detailed  by  the 
Secretary  of  the  Navy  to  inspect  a  vessel,  the 
fact  that  she  is  chartered  by  the  War  Depart- 
ment as  an  Armj^  transport  does  not  burden  the 
officer  with  services  not  incident  to  his  office. 
The  duties  required  of  him  were  of  the  general 
nature  performed  by  him  in  the  Navy.  Addi- 
tional compensation  for  such  inspection  service 
is  prohibited  bv  Revised  Statutes,  section  1765. 
(Stocker  i;.  U.  S.,  39  Ct.  Cls.,  300.) 

The  Army  and  Navy  constitute  the  military 
force  of  the  Government,  and  their  duties  are 
to  cooperate  when  necessity  or  emergency  de- 
mands it.  For  this  purpose  they  are  a  unit 
under  the  authority  of  one  Commander  in  Chief. 
The  Army  has  no  officer  corresponding  to  a 
naval  constructor,  and  when  it  becomes  neces- 
sary to  use  ships  at  sea  to  transport  the  troops  of 


the  Army  it  becomes  and  is  the  duty  of  the 
Navy,  with  all  its  equipment  and  forces,  when 
properly  directed,  to  give  necessary  assistance 
and  protection  to  such  transportation.  (Stocker 
V.  U.  S.,  39  Ct.  Cls.,  300.) 

See  also  section  1437,  Revised  Statutes,  pro- 
viding that  "the  President  may  detail,  tempo- 
rarily, three  competent  naval  officers  for  the 
service  of  the  War  Department  in  the  inspec- 
tion of  transport  vessels,  and  for  such  other 
services  as  may  be  designated  by  the  Secretary 
of  War."  (This  statute  was  not  cited  by  the 
Court  of  Claims  in  the  case  above  noted . ) 

Military  duties  are  not  compatible  with 
grades  of  the  Construction  Corps. — Duties 
of  a  purely  military  nature,  such  as  contem- 
plated by  Article  R-1003,  paragraphs  1  and  4, 
Na\'y  Regulations,  1913  (military  command  and 
senior  officer  present),  are  not  compatible  with 
thegradesof  the  Construction  Corps,  and  are  not, 
therefore,  within  the  scope  of  the  clause  above- 
quoted  from  the  naval  appropriation  act  of 
March  3,  1915.    (File  26806-140,  June  9,  1916.) 

The  law  does  not  say  that  officers  of  the  Con- 
struction Corps  shall  be  eligible  for  any  shore 
duty  which  they  may  individually  be  compe- 
tent to  perform;  but  for  any  shore  duty  compati- 
ble with  their  rank  and  grade.  It  is  not  the 
competency  of  the  particular  officer  to  perform 
certain  duties,  but  the  compatibility  of  those 
duties  with  the  grade  of  naval  constructor  that 
governs.  Military  duties,  such  as  are  required 
of  the  commandant  of  a  navy  yard  and  his  aid 
or  executive,  are  not  compatible  with  the  grade 
of  naval  constructor,  even  though  there  may  be 
found  in  that  grade  some  officer  who  by  special 
training  or  experience  might  be  individually 
competent  to  perform  such  duties.  (File  5038- 
20:1,  Jan.  18,  1915.) 

Construction  officer  can  not  be  comman- 
dant of  navy  yard. — Section  1542,  Revised 
Statutes,  provides  that  the  commandants  of  the 
several  navy  yards  are  to  be  officers  of  the  line; 
that  is,  they  are  to  be  "officers  not  below  the 
grade  of  commander,"  which  grade  exists  only 
in  the  line  of  the  Navy.  In  conformity  with 
this  law,  line  officers  have  from  time  imme- 
morial been  selected  for  duty  as  commandants 
of  navy  yards.  The  duties  of  commandant 
have  thus  become  part  of  the  duties  of  the  line. 
The  Navy  Regulations  provide  that,  in  the 
absence  of  the  commandant,  "the  line  officer 
next  in  rank,"  if  not  restricted  to  special  duty, 
shall  become  the  acting  commandant.  The 
words  in  the  act  of  June  30,  1914,  "compatible 
with  their  rank  and  grade,"  which  Congress 
wrote  into  the  law  evidently  for  some  purpose, 
would  be  rendered  meaningless  if  naval  con- 
structors could  nevertheless  be  assigned  to  duty 
which,  from  its  very  nature,  as  well  as  in  ac- 
cordance with  military  usage  and  specific  pro- 
visions of  law  and  regulations,  belongs  exclu- 
sively to  other  grades.     Any  argument  which 


54641°— 22- 


-33 


507 


Sec.  1404. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


might  be  advanced  to  show  that  it  is  compatible 
with  the  grade  of  naval  constructor  to  perform 
the  duties  of  commandant,  might  be  urged 
with  equal  force  to  show  that  it  is  compatiDle 
with  said  grade  to  perform  the  duties  of  the  pay 
corps,  medical  corps,  professors  of  mathematics, 
chaplains,  or  civil  engineers.  The  duties  per- 
formed by  the  different  grades  in  the  Navy  are 
well  understood,  are  defined  by  regulations, 
orders,  and  customs  of  the  service,  as  well  as  by 
law  in  some  cases.  It  must  be  presumed  that 
Congress  in  enacting  the  act  of  1914  legislated 
with  reference  to  the  duties  of  the  various 
grades  as  they  then  existed,  and  if  it  had  in- 
tended that  naval  constructors  could  be  as- 
signed to  duties  belonging  to  other  grades,  it 
would  have  omitted  the  restriction  expressed 
by  the  phrase  "compatible  with  their  rank  and 
grade."  These  words  were  put  into  the  law  as 
a  limitation  upon  the  Secretary's  authority; 
they  must  be  given  effect;  and  they  exclude 
assignment  of  naval  constructors  to  duty  in 
command  of  a  navy  yard.  (File  5038-20:1, 
Jan.  18,  191.5.) 

Construction  oflB.cer  can  not  be  aid  or 
executive  of  comniandant  or  succeed  to 
command. — Section  1469,  Revised  Statutes, 
which  limits  details  as  aid  or  executive  of  com- 
mandants at  naval  stations  to  officers  of  the 
line,  is  not  repealed  or  modified  by  the  act  of 
June  30,  1914,  which  authorizes  the  assignment 
of  construction  officers  to  duties  "compatible 
with  their  rank  and  grade."  (File  5038-20:1, 
Jan.  18,  1915.) 

A  naval  constructor  can  not  under  the  law  be 
assigned  to  duty  as  aid  or  executive  to  the  com- 
mandant of  a  naval  station,  nor  succeed  to 
command  of  a  naval  station  in  the  absence  of 
the  commandant.  (File  5038-20:1,  Jan.  18, 
1915.) 

The  duties  of  aid  to  a  commandant  may  be 
compatible  with  the  rank  of  a  construction 
officer,  but  are  not  compatible  with  his  grade. 
All  commissioned  officers  of  the  Navy,  both  of 
the  line  and  staff,  have  rank,  and  therefore,  if 
rank  only  were  considered,  there  would  be 
nothing  incompatible  in  ordering  a  naval  con- 
structor to  perform  any  duty  which  might  be 
assigned  to  any  officer  of  corresponding  rank  in 
the  line  or  in  any  staff  corps.  Grade  and  not 
rank  is  the  distinguishing  characteristic  by 
which  the  duties  of  commissioned  officers  are 
known  and  defined.  A  naval  constructor  may 
have  the  rank  of  commander;  so  also  may  a 
medical  officer  in  command  of  a  naval  hospital. 
Therefore  it  would  not  be  incompatible  with 
the  rank  of  a  naval  constructor  to  command  a 
naval  hospital,  but  certainly  it  would  be  in- 
compatible with  his  grade  to  perform  such  duty. 
Similarly  with  reference  to  officers  of  the  line; 
regardless  of  rank,  the  military  duties  per- 
formed by  such  officers  are  as  incompatible 
with  the  grade  of  naval  constructor  as  are  the 
duties  of  a  medical  officer  in  command  of  a 
naval  hospital.  A  naval  constructor  assigned 
to  duty  as  aid  or  executive  to  the  commandant 
would,  in  so  acting,  perform  duties  of  a  purely 
military  character,  duties  which  have  always 
been  limited  to  the  line,  duties  of  so  important 
a  character  that  the  law  itself  says  they  shall 
be  performed  not  only  by  "a  line  officer,"  but 
"when  not  impracticable"  by  the  line  officer 


"next  in  rank"  to  the  commandant;  duties 
which  are  wholly  foreign  to  the  grade  of  naval 
constructor,  which  are  not  embraced  in  a  naval 
constructor's  special  training  and  experience, 
and  which  are  as  incompatible  with  the  grade 
of  naval  constructor  as  are  the  duties  of  that 
grade  incompatible  with  the  grade  of  a  line 
officer.  (File  5038-20:1,  Jan.  18,  1915.  As  to 
distinction  between  "rank"  and  "grade"  see 
generally,  notes  to  sees.  1362  and  1457,  R.  S.) 

Construction  oflBLcer  can  not  be  assigned 
duties  belonging  to  other  grades,  either 
in  line  or  staflf. — Staff  officers  presumably 
know  something  about  the  duties  performed  by 
line  officers,  and  line  officers  know  something 
about  the  duties  performed  by  staff  officers; 
but  these  officers  are  all  specially  trained  in 
the  duties  pertaining  to  their  respective  grades, 
and  these  are  the  duties  which  they  are  sup- 
posed to  be  fitted  to  perform.  A  line  officer 
might  individually  know  something  about  the 
treatment  prescribeel  by  medical  officers  for  cer- 
tain ailments,  but  the  law  does  not  contemplate 
that  he  should  be  intrusted  with  the  respon- 
sibility of  treating  such  ailments.  Similarly  the 
law  does  not  contemplate  that  a  medical  officer 
or  naval  constructor  shoukl  be  intrusted  with 
the  responsibility  of  discharging  the  duties  for 
which  line  officers  have  been  apecially  trained 
and  equipped.  Congress,  in  deliberately  and 
specifically  limiting  the  duties  of  construction 
officers  to  such  as  are  "compatible' '  with  their 
"grade"  diel  not  intend  that  they  should  be 
assigneel  to  duties  belonging  to  other  grades, 
either  in  the  line  or  staff.  (File  5038-20:1, 
Jan.  18,  1915.) 

Construction  officers  may  exercise  com- 
mand in  the  line  or  other  staff  corps  inci- 
dent to  performance  of  their  duties. — The 
act  of  June  30,  1914,  limits  the  detail  of  officers 
of  the  construction  corps  in  accorelance  ^vith 
its  provisions,  to  "shore  duty"  and  to  such 
shore  duty  as  is  "compatible  with  their  rank 
and  grade."  The  intention  of  this  law  was 
evidently  to  enlarge  the  power  of  the  Secre- 
tary of  the  Navy  in  assigning  construction 
officers  to  duty,  but  at  the  same  time  to  pro- 
hibit their  assignment  to  duty  of  a  wholly 
different  character  from  that  which  they  had 
customarily  performed.  The  only  effect  of 
the  statute  was  to  remove  any  disability  which 
had  previously  stood  in  the  way  of  assigning 
construction  officers  to  duties  pertaining  to 
their  grade.  This  disability  was  found  in  the 
law  prohibiting  staff  officers  from  exercising 
command  in  the  line  or  in  other  staff  corps 
[sec.  1488,  R.  S.,  as  amended  bv  act  Mar.  3, 
1899,  sec.  7,  30  Stat.,  1006].  A  clause  in  the 
naval  appropriation  act  of  June  24,  1910  (36 
Stat.,  614),  partially  removed  this  disability, 
but  was  restricted  in  its  scope,  limiting  the 
detail  of  line  officers  under  staff  officers  to 
the  manufacturing  and  repair  departments  of 
navy  yards  and  naval  stations.  It  had  the 
same  effect  as  if  it  had  specifically  stated 
that  line  officers  may  not  be  detailed  for  duty 
under  staff  officers  except  in  the  manufactur- 
ing and  rt^pair  elepartmeuts  of  the  navy  yards 
and  naval  stations.  The  act  of  1914  is  broader, 
and  construction  officers  may,  by  its  authority, 
be  detailed  to  any  shore  duty  "compatible 
with  their  rank  aiid  grade,"  notwithstanding 


508 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1405. 


that  they  are  thereby  placed  in   command  of  cers  to  duty  properly  embraced  by  their  grade, 

line   officers  or   officers   of   other   staff   corps.  where  the  performance  of  euch   duty  might 

(File  5038-20:1,  Jan.  18,  1915.)  involve  the  exercise  of  command  in  the  Une 

The  only  effect  of  said  act  of  June  30,  1914,  or  other  staff  corps.     (File  5038-20:1,  Jan.  18, 

is  to  remove  the  obstacle  which  theretofore  1915.) 
prevented  the  assignment  of  construction  offi- 

Sec.  1405.  [  Warrant  officers;  number  and  appointment  of.]  The  President 
may  appoint  for  the  vessels  in  actual  service  as  many  boatswains,  gunners, 
sailmakers,  and  carpenters  as  may,  in  bis  opinion,  be  necessary  and  proper. — 
(21  Apr.,  1806,  c.  35,  s.  3,  v.  2,  p.  390.  4  Aug.,  1842,  c.  121,  s.  1,  v.  5,  p.  500. 
3  Mar.,  1847,  c.  48,  s.  1,  v.  9,  p.  172.) 


Acting  appointments  as  warrant  officers.     See 

note  to  section  1410,  Revised  Statutes. 
Appointments  from  enlisted  men  provided  for 
by  sections  1407  and  1417,  Revised  Statutes. 
Duties  of  warrant  officers.     See  sections  1416 

and  1438,  Revised  Statutes. 
Pay   of   warrant  officers.     See    section    1556, 

Revised  Statutes. 
Rank  of  warrant  officers.      See  section  1491, 

Revised  Statutes. 
Temporary  appointments  as  warrant  officers  of 
the  Navy  may  be  made  by  the  Secretary 
of  the  Navy.  (Act  May  22,'  1917,  sec.  5,  40 
Stat.,  85,  as  amended  by  act  July  1,  1918, 
40  Stat.,  716.) 

Sailmakers. — So  much  of  this  section  as 
provides  for  the  appointme  nt  of  sailmakers  has 
become  obsolete,  there  being  no  officer  in  that 
grade  now  in  the  Navy,  and  no  such  appoint- 
ments having  been  made  since  May  4,  1888. 
(See  Annual  Navy  Registers.)  The  Navy  Reg- 
ister of  1917  (pp.  158,  159)  shows  one  officer 
serving  in  the  grade  of  chief  sailmaker. 

(See  note  below  as  to  the  promotion  of  war- 
rant officers.) 

"The  sailmaker  was,  as  in  the  British  service, 
to  report  the  condition  of  the  sails  to  the  boat- 
swain. He  has  at  the  present  day  ceased,  for 
obvious  reasons,  to  have  importance  in  the 
Navy."     (22  Op.  Atty.  Gen.,  620.) 

Machinists. — The  appointment  of  100  war- 
rant machinists  was  authorized  by  the  Navy 
personnel  act  of  March  3,  1899,  section  14  (30 
Stat.,  1007).  The  appointment  of  50  addi- 
tional warrant  machinists  was  authorized  by 
act  of  March  3,  1901  (31  Stat.,  1108);  and  pro- 
vision for  the  appointment  of  as  many  warrant 
machinists  "as  the  President  may  from  time 
to  time  deem  necessary  to  appoint,  not  to  exceed 
twenty  in  any  one  year,"  was  made  by  act  of 
April  27,  1904  (33  Stat.,  324),  repeated  in  the 
naval  appropriation  act  for  each  subsequent 
year  until  the  act  of  August  29,  1916  (39  Stat., 
o75),  when  the  limitation  upon  the  number  to 
be  appointed  in  any  one  year  was  omitted. 

The  title  of ' '  warrant  machinist "  was  changed 
to " machinist " by  actof  March3, 1909(35Stat., 
771). 

Pharmacists. — The  appointment  by  the 
Secretary  of  the  Navy  of  25  pharmacists  in  the 
Hospital  Corps  of  the  Navy,  "with  the  rank, 
pay,  and  privileges  of  warrant  officers,  remov- 
able in  the  discretion  of  the  Secretary,"  was 
authorized  by  act  of  June  17,  1898,  section  1  (30 
Stat.,  474).  By  section  4  of  the  same  act  (30 
Stat.,  475),  it  was  provided  that  "all  benefits 
derived  from  existing  laws,  or  that  may  here- 


after be  allowed  by  law,  to  other  warrant  offi- 
cers or  enlisted  men  in  the  Navy  shall  be 
allowed  in  the  same  manner  to  the  warrant  offi- 
cers or  enlisted  men  in  the  Hospital  Corps  of  the 
Navy." 

By  act  of  August  29,  1916  (39  Stat.,  572),  the 
President  was  authorized  to  appoint  "as  many 
pharmacists  as  may  be  deemed  necessary," 
who  "shall  have  the  same  rank,  pay,  and 
allowances  as  are  now  or  may  hereafter  be 
allowed  other  warrant  officers." 

Pay  clerks. — A  grade  of  warrant  officers 
designated  as  pay  clerks  was  established  by  act 
of  March  3,  1915"(38  Stat.,  942),  appointments 
thereto  being  regularly  made  by  promotion 
from  the  grade  of  acting  pay  clerk;  and  it  was 
provided  "that  pay  clerks  and  acting  pay  clerks 
shall  have  the  same  pay,  allowances,  and  other 
benefits  as  are  now  or  may  hereafter  be  allowed 
other  warrant  officers  and  acting  warrant  offi- 
cers, respectively." 

The  total  number  of  pay  clerks  was  not  spe- 
cifically fixed,  but  the  act  above  cited  provided 
that  the  total  number  of  chief  pay  clerks,  pay 
clerks,  and  acting  pay  clerks  shall  not  exceed 
one  for  each  250  enlisted  men  allowed  by  law 
in  the  Navy. 

Clerks  to  assistant  paymasters  in  the 
Marine  Corps  are  not  warrant  oflB.cers. — 
The  provision  of  the  act  of  March  3,  1915  (38 
Stat.,  942),  in  regard  to  warranting  pay  clerks 
of  the  Navy,  is  not  sufficiently  broad  to  include 
clerks  to  assistant  paymasters  in  the  Marine 
Corps.  The  fact  that  the  grades  of  warrant  offi- 
cers, at  the  time  of  the  statute's  enactment, 
existed  exclusively  in  the  Navy  proper,  and 
that  there  were  no  warrant  officers  designated 
as  such  by  law  in  the  Marine  Corps,  strongly 
accentuates  the  view  that  the  Marine  Corps  was 
not  in  contemplation  of  Congress  when  this 
legislation  was  enacted.  It  is  clear  that  Con- 
gress did  not  intend  its  legislation  with  refer- 
ence to  clerks  to  pay  officers  in  the  Navy  to 
apply  to  clerks  to  assistant  paymasters  in  the 
Marine  Corps,  but  on  the  contrary  intended 
that  the  pay,  allowances,  and  other  benefits 
allowed  the  latter  class  of  clerks  should  be  the 
same  as  in  the  Army.  (File  5460-81,  May  12, 
1916.  By  act  July  1,  1918  (40  Stat.,  735),  the 
title  of  clerks  for  assistant  paymasters  in  the 
Marine  Corps  was  changed  to  "pay  clerk," 
and  it  was  provided  that  pay  clerks  "shall 
hereafter  receive  the  same  pay,  allowances, 
and  other  benefits  now  pro"\dded  by  law  for 
clerks  for  assistant  paymasters.") 

The  warrant  grades  of  marine  gunner 
and  quartermaster  clerk  were  established 


509 


Sec.  1406. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


by  the  act  of  August  29,  1916  (39  Stat.,  611), 
which  provided  that  officers  in  said  grades 
"ehall  nave  the  rank  and  receive  the  pay, 
allowances,  and  pri\ilege8  of  retirement  of 
Avarrant  «)llicors  in  the  Na\'y." 

Mates  are  not  warrant  officers. — See 
note  to  section  1408,  Revised  Statutes. 

Promotion  of  warrant  officers. — Boat- 
swains, gunners,  carpenters,  and  sailniakers 
were,  after  ten  years  from  date  of  warrant,  to 
be  commissioned  as  chief  boatswains,  chief 
gunners,  chief  carpenters,  and  chief  sail- 
makers,  to  rank  with  but  after  ensign,  by  act  of 
March  3,  1899,  section  12  (30  Stat.,  1007). 
This  provision  was  amended  by  act  of  April  27, 
1904  (33  Stat.,  346),  providing  for  the  promo- 
tion of  the  officers  mentioned  after  six  years 
from  date  of  warrant,  instead  of  ten  years,  as 
theretofore. 

Machinists  are,  after  six  years  from  dateof 
warrant,  to  be  commissioned  as  chief  machin- 
ists.    (Act  Mar.  3,  1909,  35  Stat.,  771.) 

Pharmacists  were,  after  six  years  from  date 
of  warrant,  to  be  commissioned  as  chief  phar- 
macists, by  a  provision  in  the  act  of  August 
22,  1912  (37  Stat.,  345).  Under  that  pro- 
vision it  was  held  that  the  total  number  of 
pharmacists  and  chief  pharmacists  was  limited 
to  25,  that  being  the  maximum  number  fixed 
by  previous  law  for  the  grade  of  pharmacist, 
and  the  provision  for  the  promotion  of  phar- 
macists not  being  intended  to  increase  the 
total  number  of  officers  in  the  Navy.  (File 
27213-3,  May  6,  1913;  27218-4,  Dec.  5,  1913.) 
Prior  to  the  act  of  August  22,  1912,  the  com- 
missioning of  pharmacists  as  chief  pharmacists 
was  not  authorized,  as  sections  one  and  four 
of  the  act  approved  June  17,  1898  (noted 
above  under  "Pharmacists"),  did  not  have 
that  effect.  (File  27213,  Apr.  24,  1909.)  By 
act  of  August  29,  1916  (39  Stat.,  572,  573),  it 
was  provided  that  "pharmacists  shall,  after 
six  years  from  the  date  of  warrant,  be  com- 
missioned chief  pharmacists  after  passing  satis- 
factorily Buch  examinations  as  the  Secretary 
of  the  Navy  may  prescribe,  and  shall,  when 
so  commissioned,  have  the  same  rank,  pay, 
and  allowances  as  now  or  may  hereafter  be 
allowed  other  commissioned  warrant  officers"; 
and  the  restriction  upon  the  number  of  phar- 
macists and  chief  pharmacists  was  removed. 

Pay  clerks  are,  _  after  six  years'  service  as 
such,  to  be  commissioned  as  chief  pay  clerks. 
(Act  Mar.  3,  1915,  38  Stat.,  942.) 

By  act  of  May  22,  1917  (40  Stat.,  84),  as 
amended  bjr  act  of  July  1,  1918  (40  Stat.,  716), 
temporarily  increasing  the  number  of  officers  and 
enlisted  men  of  the  Navy  and  Marine  Corps,  it 
was  provided  (sec.  5)  that  "the  additional 
temporary  officers  authorized  in  the  various 
grades  and  ranks  of  the  Navy  and  Marine  Corps 
in  accordance  with  the  next  preceding  section 
may  be  temporarily  appointed  to  serve  in  the 
grades  or  ranks  to  whicn  appointed  or  promoted 
*  *  *  by  temporary  appointment  of  *  *  * 
warrant  officers  *  *  *  of  the  Navy,  and 
warrant  officers   *   *    *    of  the  Marine  Corps." 

By  act  of  Jime  4,  1920  (41  Stat.,  834,  835), 
provision  was  made  for  the  issuance  of  perma- 
nent commissions  and  warrants  to  officers  who 
served  temporarily  in  commissioned  and  war- 


rant grades  during  the  World  War. 


Commissioned  warrant  officers  on  the  actiA-e 
list  Avith  creditable  records  shall,  after  six 
years  from  date  of  commission,  receive  the  pay 
and  allowances  of  a  lieutenant  (junior  grade); 
and  after  twelve  years  from  date  of  commission 
the  pay  and  allowances  of  a  lieutenant.  (Act 
Aug.  29,  1916,  39  Stat.,  578.) 

Ensigfns  and  assistant  paymasters  ap- 
pointed from  warrant  officers. — The  ap- 
pointment annually  of  not  more  than  six 
ensigns  from  among  the  boatswains,  gunners, 
or  rnachinists,  having  not  less  than  six  years' 
service  as  warrant  officers,  was  authorized  by 
act  of  March  3, 1901  (31  Stat.,  1129).  This  pro- 
vision was  amended  by  act  of  March  3,  1903 
(32  Stat.,  1197),  providing  that  12  ensigns  may 
be  so  appointed  annually  instead  of  6.  It 
was  further  amended  by  act  of  April  27,  1904 
(33  Stat.,  346),  providing  that  such  appoint- 
ments may  be  made  from  among  boatswains, 
gunners,  and  machinists  having  four  years' 
service  as  warrant  officers,  instead  of  six  years 
as  previously  required.  It  was  again  amended 
by  act  of  March  3,  1909  (35  Stat.,  771),  which 
provided  that  chief  boatswains,  chief  gunners, 
and  chief  machinists  should  be  eligible  for 
appointment  as  ensigns  under  ttie  same  restric- 
tions as  imposed  by  law  upon  the  appointment 
of  boatswains,  gunners,  and  machinists  to  that 
grade. 

The  law  does  not  require  that  warrant  officers 
who  qualify  for  ensign  be  commissioned  as  of 
July  30  of  each  year.  By  act  of  March  3, 1901 
(31  Stat.,  1129),  it  was  provided  that '  'whenever 
in  view  of  the  vacancies  in  the  grade  of  ensign 
on  July  tliirtieth  of  any  year  unfilled  by 
graduates  of  the  Naval  Academy,  the  Secretary 
of  the  Navy  shall  so  recommend,  the  President 
may  appoint  to  that  grade,  as  of  July  thirtieth, 
from  among  the  boatswains,  gunners,  or  warrant 
machinists,  not  exceeding  six  in  any  one 
calendar  year."  The  same  act  contained  re- 
strictions concerning  the  qualifications  of 
warrant  officers  eligible  for  such  appointment 
as  ensign.  At  the  time  this  law  was  enacted  the 
grades  of  lieutenant  (junior  grade)  and  ensign 
were  limited  by  law.  However,  by  act  of 
March  3,  1903  (32  Stat.,  1197),  the  appointment 
was  authorized  of  such  total  numbers  of  lieuten- 
ants (jiinior  grade)  and  ensigns  as  may  be  quali- 
fied for  said  grades  under  existing  law,  there- 
by making  said  grades  unlimited  in  number. 
In  the  same  act  it  was  provided  that  "hereafter, 
in  each  calendar  year  there  may,  under  the 
restrictions  imposed  by  existing  law,  be  ap- 
pointed from  the  boatswains,  gunners,  and 
warrant  machinists  of  the  Navy,  twelve  en- 
signs." This  act  amended  the  prior  law  in  so 
far  as  same  authorized  appointments  of  ensigns 
from  warrant  officers  to  be  made  only  in  the 
case  of  vacancies  existing  in  the  grade  of 
ensign  on  July  30  of  each  year  and  required 
that  such  appointments  be  made  as  of  July  30. 
Accordingly,  since  the  act  of  1903,  it  has  not 
been  required  that  the  appointments  of  en- 
signs from  warrant  officers  be  made  as  of  July 
30,  but  same  were  authorized  to  be  made  at  any 
time  "in  each  calendar  year,"  subject  to  the 
limitation  upon  the  number  to  be  so  appointed. 
(File  28687-i,  Sept.  16,  1916.) 

The  act  of  April  27,  1904  (33  Stat.,  346), 
provided    "that    subject    to    the    restrictions 


610 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1405. 


imposed  by  existing  law,  boatswains,  gunners, 
and  warrant  machinists  shall  be  eligible  for 
appointment  to  the  grade  of  ensign  after  four 
years'  service  as  warrant  officers."  Under  the 
act  of  August  29,  1916  (39  Stat,  577)  [which 
limited  the  number  of  officers  in  the  various 
grades  and  ranks  of  the  Navy,  including  the 
lowest  grades  of  the  line,  in  accordance  with 
computations  to  be  made  by  the  Secretary  of 
the  Navy  on  January  1  and  July  1  of  each  year, 
and  provided  that  the  numbers  in  each  grade 
and  rank  resulting  from  such  computations 
should  not  be  varied  between  said  dates], 
warrant  officers  qualifjnng  for  the  grade  of 
ensign  should  be  commissioned  in  such  grade 
on  January  1  or  July  1  of  each  year,  and  can 
not  be  commissioned  between  said  dates  except 
to  fill  vacancies  occurring  in  the  authorized 
number  of  ofiicers  in  the  grades  of  lieutenant 
(junior  grade)  and  ensign,  computed  in  accord- 
ance with  the  act  of  August  29,  1916.  (File 
28687-4,  Sept.  16,  1916.) 

The  act  of  May  22,  1917,  section  6  (40  Stat., 
86),  authorizing  computations  to  be  made 
"during  the  period  of  the  present  war,"  at  such 
times  other  than  January  1  and  July  1  as  the 
Secretary  of  the  Navy  "may  deem  nec&ssary," 
suspends  temporarily  the  restriction  contained 
in  the  act  of  August  29,  1916,  upon  varying  the 
number  of  officers  between  specified  dates. 
The  result  is  that  additional  appointments  of 
commissioned  officers  in  the  lowest  grades,  line 
and  staff,  may  be  made  at  any  time  that 
eligibles  become  available.  Such  additional 
appointments  may  be  made  permanently  where 
vacancies  exist  in  the  permanent  service,  and 
eligibles  are  available  for  permanent  appoint- 
ment, or  may  be  made  temporarily  to  fill  any 
existing  deficiency  therein  until  eligibles  are 
available  for  regular  appointment  in  accordance 
with  existing  law.  (File  28687-22,  June  14, 
1917.  By  act  of  July  11,  1919  (41  Stat.,  139), 
permanent  provision  was  made  for  computa- 
tions by  the  Secretary  of  the  Navy  at  least 
once  each  year  and  at  such  times  as  the  Secre- 
tary may  direct.) 

Chief  pay  clerks  and  pay  clerks  between  the 
ages  of  21  and  35  years  are  eligible  for  appoint- 
ment as  assistant  paymasters,  but  shall  not 
have  any  preference  for  such  appointment 
except  as  to  this  modification  of  the  limitations 
fixed  by  section  1379,  Revised  Statutes,  as  to 
the  ages  of  appointees.  (Act  Mar.  3,  1915,  38 
Stat.,  943.) 

As  to  temporary  appointment  of  warrant 
officers  to  commissioned  rank,  see  act  of  May 
22,  1917,  as  amended  by  act  of  July  1,  1918, 
noted  above,  under  "Promotion  of  warrant 
officers." 

Warrant  oflB.cers  belonging  to  line  and 
stafif  of  Navy. — See  note  to  section  1362, 
Revised  Statutes. 

Appointments  by  President  and  Secre- 
tary of  the  Navy. — See  note  to  Constitution, 
Article  II,  section  2,  clause  2,  under  "II.  Con- 
stitutional power  of  appointment." 

Section  1405  authorizes  the  President  to 
appoint  as  many  boatswains,  gunners,  sail- 
makers,  and  carpenters  as  may  in  his  opinion 
be  necessary  and  proper.  The  consent  of  the 
Senate  not  having  been  required  by  Congress, 
euch  consent  is  unnecessary,  and  the  President 


may  make  such  appointments  without  sub- 
mitting the  same  to  the  Senate  for  confirmation. 
(22  Op.  Atty.  Gen.,  82;  see  also  23  Op.  Atty. 
Gen.,  136.) 

By  act  of  May  22,  1917,  section  5  (40  Stat., 
85),  as  amended  by  act  of  July  1,  1918  (40  Stat., 
716),  temporary  appointments  as  warrant  offi- 
cers were  authorized  to  be  made  by  the  Secre- 
tary of  the  Navy. 

Warrant  officers  not  commissioned  of- 
ficers.— Warrant  officers  designated  as  boat- 
swains, gunners,  carpenters,  and  sailmakers  are 
appointed  under  authority  of  section  1405, 
Revised  Statutes,  and  in  addition  thereto 
Congress  has  from  time  to  time  authorized  the 
appointment  of  other  warrant  officers  in  the 
Navy.  Such  officers  have  always  been  re- 
garded as  a  separate  and  distinct  class  from 
commissioned  officers,  whose  appointments  in 
the  Regular  Navy  are  evidenced  by  commis- 
sions signed  by  the  President  and  under  the 
seal  of  the  United  States.  Accordingly,  held 
that  a  warrant  officer  is  not  a  commissioned 
officer  within  the  meaning  of  the  provision  in 
the  Navy  personnel  act  of  March  3, 1899,  section 
13  (30  Stat.,  1007),  that  certain  commissioned 
officers  of  the  Navy  shall  receive  the  same  pay 
and  allowances  as  are  provided  for  officers  of  the 
Army.     (6  Comp.  Dec,  495.) 

"Warrant"  and  "commission,"  outside  of 
naval  technicality,  are  synonymous  words. 
There  is  no  difference  in  form  between  a  com- 
mission and  a  warrant  as  used  in  the  Navy, 
except  that  one  recites  that  the  appointment 
is  made  "by  and  with  the  advice  and  consent 
of  the  Senate,"  and  the  other  does  not.  (28 
Op.  Atty.  Gen.,  325;  quoting  Brown  v.  U.  S., 
18  Ct.  Cls.,  537,  543.) 

Within  the  meaning  of  Articles  II,  III,  and 
IV  of  the  War  Risk  Insurance  Act,  unless  the 
context  otherwise  requires,  "the  term  'com- 
missioned officer'  includes  a  warrant  officer." 
(Act  Oct.  6,  1917,  40  Stat.,  401.) 

See  note  to  section  1408,  Revised  Statutes, 
under  "Mates  are  not  warrant  officers." 

Retirement  of  warrant  officers. — See  note 
to  section  1448,  Revised  Statutes. 

The  laws  relating  to  the  retirement  of  officers 
of  the  Navy  ha\ing  been  uniformly  held  by 
the  officers  charged  with  their  execution  to  be 
applicable  to  warrant  as  well  as  commissioned 
officers,  such  holding  is  sustained,  although  it 
must  be  conceded  that  were  the  question  a  new 
one  the  true  construction  of  the  law  would  be 
open  to  doubt.  (Brown  v.  U.  S.,  113  U.  S., 
568.) 

A  mate  who  served  during  the  Civil  War  was 
not  entitled  to  retirement  with  higher  rank  and 
pay  as  allowed  by  law  to  officers  of  the  Navy 
na\ing  such  service,  because  he  was  not  one  of 
the  mates  to  whom  Congress  had  granted  the 
benefit  of  the  retirement  laws  relating  to  war- 
rant officers.  (See  note  to  sec.  1408,  R.  S.)  If 
appointed  a  boatswain,  this  mate  would  be  en- 
titled, on  account  of  his  Civil  War  service,  to 
retirement  with  the  rank  and  retired  pay  of  a 
chief  boatswain  six  months  after  such  appoint- 
ment. Held,  that  he  may  validly  waive  his 
right  to  retirement  as  chief  boatswain,  in  con- 
sideration of  his  appointment  as  boatswain  and 
retirement  with  that  rank.  (File  3031-57, 
July  31,  1908,  case  of  Thomas  G.  McDonough, 


511 


Sec.  140' 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


app<>inte<l  a  boatswain  in  the  Navy  Aug.  G, 
1908,  and  retire<l  as  boatswain  Feb.  6,  1909, 
upon  his  own  application  after  30  years' 
service.  Compare  U.  S.  v.  Andrews,  240  U. 
S.,  90.) 

Revocation  of  warrant. — See  note  to  sec- 
tion 1109,  Revised  Statutes. 

Ages  of  candidates  for  appointment. — 
Candidates  from  civil  life  for  machinist  in 
the  Navy  must  by  law  be  "not  above  thirty 
vears  of  age."  (Act  Mar.  3,  1899,  sec.  14,  30 
Stat.,  1007.) 

No  person  shall  be  appointed  a  pay  clerk  in 
the  Nii\'y  "unless  his  accumulated  previous 
service  in  the  Army,  Navy,  and  Marine  Corps, 
together  with  his  possible  future  service  prior 
to  attaining  the  age  of  sixty-two  years,  will 
amount  to  at  least  thirty  years."  (Act  Mar.  3, 
1915,  38  Stat.,  942.) 

In  making  temporary  appointments  author- 
ized by  the  act  of  May  22,  1917  (40  Stat.,  85, 
sec.  5),  as  amended  by  act  of  July  1,  1918  (40 
Stat.,  716),  "the  maximum  age  limit  shall  be 
fifty  years  for  *  *  *  enlisted  men  of  the 
Navy  to  warrant  rank." 

A  "candidate  for  appointment  as  boatswain  or 
gunner  in  the  Navy,  other  than  such  as  are  pre- 
\'ided  for  in  section  1407,  Revised  Statutes, 
must  be  under  thirty-five  years  of  age.  (Arts. 
R-3313,  3314,  Navy  Regs..  1913.) 

A  candidate  for  appointment  as  machinist  in 
the  Na^^,  who  at  the  time  of  making  applica- 

Sec.  1406.  [Warrant  officers;  title.]  Boatswains,  gunners,  carpenters, 
and  sailmakers  shall  be  known  and  shall  be  entered  upon  the  Naval  Register 
as  "  warrant  officers  in  the  naval  service  of  the  United  States." — (2  July,  1864, 
c.  219,  s.  2,  V.  13,  p.  373.) 


t  ion  is  enlisted  in  the  Navy,  other  than  such 
as  are  provided  for  in  section  1407,  Revised 
Statutes,  "must  not  be  more  than  thirty-five 
yearsof  age."    (Art.  R-3315,  Navy  Regs.,  1913.) 

A  candidate  for  carpenter  in  the  Navy,  other 
than  such  as  are  provided  for  in  section  1407, 
Revised  Statutes,  must  be  under  thirty-five 
years  of  age.  (Art.  R-3316,  Navy  Regs., 
1913.) 

No  person  shall  be  appointed  a  pharmacist 
unless  his  accumulated  previous  service  in  the 
Army,  Navy,  and  Marine  Corps,  together  with 
his  possible  future  service  prior  to  attaining  the 
age  of  64  years,  will  amount  to  at  least  30 
years. 

Special  age  limits  for  officers  appointed  to 
the  Regular  Navy  by  transfer  from  the  tem- 
porary Navy  and  Naval  Reserve  Force  were 
prescribed  by  act  of  June  4,  1920,  section  5 
(41  Stat.,  835). 

For  cases  construing  statutory  ages  for 
appointment  in  the  Navy,  see  note  to  section 
1370,  Revise<l  Statutes. 

The  Navy  Department  does  not  deem  it  desir- 
able to  make  an  exception  in  the  case  of  a  mate 
who  makes  application  to  take  the  examination 
for  boatswain  in  the  Navy,  and  who,  at  the  date 
of  the  next  examination,  would  be  about  nine 
and  one-half  years  over  the  maximum  age  pre- 
scribed for  candidates  for  that  grade.  (File 
3031-55,  June  16,  1908.) 


Amendment  to  this  section  has  been  made  by 
the  acts  noted  under  section  1405,  creating 
the  additional  grades  of  warrant  officers 
designated  as  machinists,  pharmacists,  and 
pay  clerks. 

Sailmakers  now  obsolete.  See  note  to  section 
1405. 


Commissioned  warrant  oflB.cers. — Chief 
boatswains,  chief  gunners,  chief  machinists, 
chief  carpenters,  chief  sailmakers,  chief  phar- 
macists, and  chief  pay  clerks,  are  designated  as 
"commissioned  warrant  officers."  (See  Art. 
R-1013  (2),  Navy  Regs.,  1913.) 


Sec.  1407.  [Warrant  officers;  seamen  promoted  for  heroism.  Medals  of 
honor.]  Seamen  distinguishing  themselves  in  battle,  or  by  extraordinary 
heroism  in  the  line  of  their  profession,  may  "be  promoted  to  forward  warrant 
officers,  upon  the  recommendation  of  their  commanding  officer,  approved  by 
the  flag-officer  and  Secretary  of  the  Navy.  And  upon  such  recommendation 
they  shall  receive  a  gratuity  of  one  hundred  doUars  and  a  medal  of  honor,  to 
be  prepared  under  the  direction  of  the  Navy  Department. — (17  May,  1864,  c. 
89,  s.  3,  V.  13,  pp.  79,  80.) 


Amendment  to  this  section  was  made  by  act  of 
March  3,  1901  (31  Stat.,  1099),  which  ex- 
tended the  benefits  of  a  gratuity  and  medal 
of  honor  under  this  section  to  "any  en- 
listed man  of  the  Navy  or  Marine  Corps 
who  shall  have  distinguished  himself  in 
battle  or  displayed  extraordinary  heroism 
in  the  line  of  his  profession." 

Appointment  as  warrant  officer  does  not  dis- 
charge man  from  his  enlistment.  (Sec. 
1409,  R.  S.) 

Appointment  of  warrant  officers  from  enlisted 
men  is  further  provided  for  by  section  1417, 


Revised  Statutes,  as  amended,  which  pro- 
vides that  nothing  contained  therein  shall 
be  held  to  abrogate  the  provisions  of  sec- 
tion 1407,  Revised  Statutes. 

Appointment  of  acting  warrant  officers,  see  note 
to  section  1410,  Revised  Statutes. 

By  resolution  May  4,  1898  (30  Stat.,  741),  the 
Secretary  of  the  Navy  was  authorized  to 
issue  a  rosette  or  knot  to  persons  awarded 
medals  of  honor  under  the  law  embodied 
in  this  section,  "to  be  worn  in  lieu  of  the 
medal,  and  a  ribbon  to  be  worn  with  the 
medal";  also,  additional  ribbons  in  place 


512 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1407. 


of  those  lost  or  destroyed  without  fault  of 
persons  to  whom  issued. 

Campaign  badges  and  ribbons  for  officers  and 
men  of  the  Navy  and  Marine  Corps  who 
have  participated  in  engagements  and  cam- 
paigns deemed  worthy  of  such  commemo- 
ration, authorized  bv  act  of  Mav  13,  1908 
(35  Stat.,  132). 

Duplicate  medals  in  lieu  of  lost  medals  issued 
prior  to  April  15,  1904,  by  authority  of  any 
law,  for  distinguished  or  meritorious  serv- 
ices, may  be  prepared  and  delivered 
without  charge  to  persons  to  whom  original 
medals  were  presented,  when  loss  was  with- 
out fault  of  beneficiarv .  (Res.  Apr.  15, 
190-1,  33  Stat.,  588.) 

Foreign  decoration  or  other  thing,  accepted  by 
consent  of  Congi'ess,  shall  not  be  publicly 
shown  or  exposed  upon  the  person  of  the 
officer  recei\dng  same.  (Act  Jan.  31,  1881, 
sec.  2,  21  Stat.,  604;  see  note  to  Constitu- 
tion, Art.  I,  sec.  9,  clause  8.)  The  accept- 
ance and  wearing  of  foreign  medals  and 
decorations  under  certain  prescribed  con- 
ditions was  authorized  bv  the  Armv  act  of 
July  9,  1918  (40  Stat.,  872).  wMch  act  ap- 
plies to  the  Navy  and  Marine  Corps.  (Op. 
Atty.  Gen.,  May  9,  1919,  file  9644-55.) 

Life-sa\'ing  medals  of  honor  are  to  be  awarded 
by  Secretary  of  the  Treasiu^^  to  any  per- 
sons ''making  signal  exertions  in  rescuing 
and  succoring  the  shipwrecked  and  saving 
persons  from  drowning  in  the  waters  over 
which  the  United  States  has  jurisdiction." 
(Act  June  20,  1874,  sec.  7,  18  Stat.,  127; 
act  June  18,  1878,  sec.  12,  20  Stat.,  165; 
act  May  4,  1882,  sec.  9,  22  Stat.,  57;  act 
Jan.  21,  1897,  29  Stat.,  494;  Navy  Regs., 
1913,  art.  R-3663.) 

Life-saving  medals  of  honor  axe  to  be  awarded 
to  any  persons  who,  by  extreme  daring, 
endanger  their  own  lives  in  saving  or  en- 
deavoring to  save  lives  from  any  wreck 
upon  railroads  within  the  United  States: 
also,  rosettes  or  knots  to  be  worn  in  lieu  of 
such  medals,  and  ribbons  to  be  worn  with 
medals  and  replaced  when  lost  or  de- 
stroved  without  fault  of  person  to  whom 
issued.     (Act  Feb.  23,  1905,  33  Stat.,  743.) 

"Medal  of  honor  roll"  established  in  the  Navy 
Department,  upon  which  shall  be  entered 
names  of  persons  awarded  medals  of  honor 
under  certain  conditions,  and  who  are  cer- 
tified by  the  Secretary  of  Navy  to  be  en- 
titled to  a  special  pension.  (Act  Apr.  27, 
1916,  39  Stat.,  53.) 

Officers  of  the  Navy,  Marine  Corps,  or  Coast 
Guard  may  be  awarded  medals  of  honor 
for  distinguished  conduct  in  battle  or  ex- 
traordinary heroism  in  the  line  of  their 
profession.  (Act  Mar.  3,  1915,  38  Stat., 
931.) 

Officers  and  enlisted  men  of  the  naval  service 
may  be  awarded  medais  of  honor,  distin- 
guished service  meda's,  and  Navy  crosses, 
with  rosettes  or  other  devices  to  be  worn 
in  lieu  thereof,  imder  certain  prescribed 
conditions.  (Act  Feb.  4,  1919,  40  Stat., 
1056.) 

Pensions  are  to  be  allowed  certain  medal  of 
honor  men,  in  addition  to  other  pensions 


or  benefits.  (Act  Apr.  27,  1916,  39  Stat., 
53.) 

Spanish  War  medals,  commemorating  battle  of 
Manila  Bay,  were  authorized  for  issuance 
to  officers  and  men  of  the  Asiatic  Squadron 
under  command  of  Commodore  George 
Dewey,  by  resolution  June  3,  1898  (30 
Stat.,  746);  and  medals  commemorative  of 
the  naval  and  other  engagements  in  the 
waters  of  the  West  Indies  and  on  the  shores 
of  Cuba  during  said  war  were  authorized 
for  issuance  to  officers  and  men  of  the  Navy 
and  Marine  Corps  who  participated  therein, 
by  resolution  of  March  3,  1901  (31  Stat., 
1465),  and actof  February 27, 1906(34  Stat., 
35),  which  also  authorized  issuance  of  a 
bronze  bar  instead  of  a  second  medal  to  any 
person  entitled  to  receive  recognition  in 
more  than  one  instance. 

Wearing,  upon  occasions  of  ceremony,  of  dis- 
tinctive badges  adopted  by  certain  mili- 
tary societies  by  officers  and  men  of  the 
Army  and  Navy  who  are  members  of  such 
organizations  in  their  own  right  is  author- 
ized bv  following  statutes:  Resolution 
September  25,  1890,  26  Stat.,  681  (Mexican 
and  Ci\al  War  societies);  resolution  May 

11,  1894,  28  Stat.,  583  (Regular  Army  and 
Na\^  Union  of  the  United  States);  act 
February  2,  1901,  sec.  41,  31  Stat.,  758 
(Spanish- American  War  and  Philippine 
Insurrection  societies);  resolution  January 

12,  1903,  32  Stat.,  1229  (Chinese  Relief 
Expedition  societies);  resolution  March  2, 
1907,  34  Stat.,  ^  1423  (Army  and  Navy 
Union  of  the  United  States). 

"  Forward  warrant  ofla.cers." — ^Formerly 
warrant  officers'  rooms  were  forward,  and  they 
were  then  called  "forward"  officers,  but  this 
name  is  no  longer  used.  (Hamersly's  Naval 
Encyclopedia,  1884,  p.  834.) 

By  Na\y  Regulations,  1913  (Art.  R  3661)  it 
is  provided  that  seamen  distinguishing  them- 
selves in  battle,  or  by  extraordinary  heroism  in 
the  line  of  their  profession,  may  be  promoted  to 
''warrant  officers,"  if  foimd  fitted,  etc.,  as  pro- 
vided in  this  section. 

Appointment  of  enlisted  man  as  warrant 
oflB.cer  not  a  "promotion." — The  appoint- 
ment of  enlisted  men  to  be  warrant  or  commis- 
sioned officers  is  not  regarded  as  a  promotion. 
(5  Comp.  Dec,  142.  But  note  language  of  sec. 
1407  refers  to  promotion.  As  to  difference  be- 
tween appointment  and  promotion,  see  note  to 
sec.  1458,  R.  S.) 

The  term  "flag  oflB.cer  "  is  defrned  by  the 
Navy  Regulations,  as  used  therein,  to  mean 
"all  officers  of  the  line  of  the  Navy  above  the 
rank  of  captain."  (Art.  R-1605,  Navy  Regs., 
1913.) 

Flag  officer  is  a  generic  term,  signifying  a 
naval  officer  of  rank  high  enough  to  cormnand 
a  fleet  or  one  of  the  subdivisions  of  a  fleet;  is 
the  naval  equivalent  of  the  military  term 
'  'general  officer."  The  symbol  of  his  rank  is  a 
flag,  as  distinguished  from  the  broad  pennant  of 
a  commodore.  There  are  three  grades  of  flag 
officers — admiral,  vice  admiral,  and  rear  ad- 
miral.    (Johnson's  Universal  Cyclopedia.) 

Previous  to  the  abolishing  of  the  grade  of 
commodore,  officers  of  that  rank  were  included 


513 


Sec.  1407. 


Pt.  2.  REVISED  STA  TUTES. 


The  Navy. 


among  flag  oflScers.  (International  Encyclo- 
pedia.) 

Flap  oflBcers  are  admiral,  vice  admiral,  rear 
admiral,  and  commodore.  (Hamersly's  Naval 
Encyclopedia.) 

Falconer's  ^larine  Dictionary  mentions  ae 
flag  ofiicers,  admiral,  vice  admiral,  and  rear 
admiral. 

The  King's  Regulations  (British  Navy)  do 
not  include  commodore  among  flag  officers. 

Ofiicers  not  below  the  grade  of  commander 
may  be  assigned  by  the  President  to  the  com- 
mand of  squadrons  with  the  rank  and  title  of 
"flag-oflicers."     (Sees.  1434,  1464,  R.  S.) 

The  annual  Na\'y  Register,  under  the  head- 
ing "Flag  Officers  of  the  Navy,"  enters  the 
names  of  line  officers  on  the  active  list  in  the 
grade  of  "Rear  Admirals."  (See  Navy  Regis- 
ter, 1921,  pp.  10  and  11.) 

Special  examination  for  promotion  of 
warrant  oflB.cer  appointed  for  heroism. — 
An  enUsted  man  was  promoted  to  boatswain, 
not  by  Adrtue  of  his  professional  qualifications 
for  the  position,  but  for  an  act  of  braverj-  in  face 
of  the  enemy ^  as  authorized  by  this  section. 
In  due  time  ne  was  examined  for  promotion  to 
chief  boatswain,  in  accordance  wdth  the  Navy 
personnel  act  of  March  3,  1899,  section  12  (30 
Stat.,  1007),  as  amended  by  act  of  April  27, 1904 
(33  Stat.,  346),  pro\'iding  for  promotion  of  warrant 
officers  after  six  years  from_  date  of  warrant, 
subject  to  prescribed  examinations.  He  was 
foimd  not  professionally  ^  qualified  and  sus- 
pended from  promotion  in  accordance  with 
section  1505,  Re\dsed  Statutes.  He  was  again 
examined,  at  the  end  of  his  period  of  suspen- 
sion, and  found  not  professionally  qualified  by 
reason  of  deficiency  in  his  knowledge  of  writ- 
ing and  spelling  the  English  language  to  a 
degree  that  would  incapacitate  him  from  per- 
forming the  duties  of  a  chief  boatswain,"  and 
also  lack  of  "knowledge  of  signals  and  rules  of 
the  road."  If  this  finding  were  approved,  the 
candidate  must  "be  dropped  from  the  servdce" 
under  the  pro\dsion8  of  section  1505.  How- 
ever, the  Navy  Department  "does  not  believe 
that  a  warrant  officer  of  the  Na\^,  appointed 
under  such  conditions,  should  be  dropped  from 
the  naval  service  on  account  of  a  failure  to  pass 
a  written  professional  examination."  Held, 
that  the  finding  of  the  examining  board  in  this 
case  need  not  be  either  approved  or  disapproved 
in  its  present  form,  but  the  record  may  be  re- 
turned for  a  further  examination  of  the  candi- 
date in  the  subjects  of  signals  and  rules  of  the 
road,  with  directions  that  the  board  omit  from 
consideration  his  deficiency  in  "writing  and 
spelling  the  English  language,"  and  amend  its 
miding  accordingly;  or  the  record  may  be  dis- 
approved and  the  candidate  ordered  before 
another  board  for  such  examination  as  may  be 
considered  necessary,  as  the  law  does  not. pre- 
scribe the  nature  of  the  examination  required, 
i.  e.,  whether  written  or  oral,  the  character  of 
questions  to  be  asked  the  candidate,  nor  the 
subjects  covered  thereby.  Further,  held  that 
action  upon  the  record  can  not  be  indefinitely 
withheld,  and  the  officer  continued  in  the 
grade  of  boatswain,  as  the  law  requires  the 
entire  record  be  presented  to  the  President  for 
his  approval  or  disapproval  of  the  finding,  and 


if  approved,  the  officer  must  be  dropped  from 
the  service.  (File  26260-684,  Jan.  8,  1910. 
The  President  disapproved  the  finding  of  the 
board  and  directed  that  the  candidate  be  ex- 
amined orally  in  such  subjects  as  might  be 
necessary  to  establish  his  professional  qualifi- 
cations for  promotion.  Upon  such  oral  ex- 
amination he  was  found  qualified  and  pro- 
moted.   (File  26260-^84:2,  June  3,  1910.) 

Marines  entitled  to  gratuity  and  medal 
of  honor  under  this  section  and  not  under 
Army  statutes. — Section  1216,  Re\dsed  Stat- 
utes, as  amended,  which  empowers  the  Presi- 
dent to  grant  a  certificate  of  merit  to  an  enlisted 
man  of  the  Army  who  has  distinguished  himself 
in  the  service  and  has  been  recommended 
therefor  by  the  commanding  officer  of  the 
regiment  or  the  chief  of  the  corps  to  which  such 
man  belongs,  applies  only  to  enlisted  men  of 
the  Army  and  not  to  members  of  the  Marine 
Corps  who  have  been  similarly  commended. 
The  latter  are  provided  for  by  a  specific  pro- 
vision which  in  its  original  form  (sec.  1407, 
R.  S.)  conferred  upon  seamen  a  gratuity  and 
medal  of  honor  for  distinguished  and  heroic 
servdce;  and  by  the  act  of  March  3,  1901  (31 
Stat.,  1099),  this  reward  was  expressly  extended 
to  any  enlisted  man  of  the  Navy  or  Marine 
Corps  who  shall  have  distinguished  himself 
in  battle  or  displayed  extraordinary  heroism 
in  the  line  of  his  profession.  In  \dew  of  the 
clear  distinction  created  by  the  terms  of  the 
law  between  the  enlisted  men  of  the  Army  and 
of  the  Navy  and  Marine  Corps,  respectively,  in 
regard  to  extraordinary  reward  for  distinguished 
sen,dce,  section  1612,  iFlevised  Statutes,  assimi- 
lating the  Marine  Corps  to  the  Army  in  respect 
to  ordinary  pay,  allowances,  and  bounty  for 
reenlisting,  is  not  applicable  to  the  special 
reward  for  gallant  service  so  as  to  bring  the 
Marine  Corps  within  section  1216.  (24  Op. 
Atty.  Gen.,  579.) 

Time  of  making  award. — The  change  in 
the  language,  "upon  such  promotion,"  found 
in  the  original  law  (acts  July  16,  1862,  and 
May  17,  1864),  to  "upon  such  recommenda- 
tion," as  found  in  section  1407,  clearly  changed, 
after  the  passage  of  the  Re^dsed  Statutes,  the 
conditions  upon  which  the  gratuity  should  be 
received.     (3  Comp.  Dec,  736.) 

By  section  3  of  the  act  approved  May  17, 
1864  (13  Stat.,  79),  a  seaman  'distinguishing" 
himself  in  battle,  etc.,  could  receive  the 
gratuity  and  medal  of  honor,  as  p^o^dded 
therein,  only  on  being  promoted.  By  section 
1407  the  act  of  1864  was  enlarged  by  not  re- 
quiring the  promotion  of  the  seaman  as  a  pre- 
requisite to  his  receiving  the  gratuity  of  $100 
and  the  medal  of  honor.     (7  Comp.  Dec,  844.) 

[See  24  Op.  Atty.  Gen.,  580,  holding  that  in 
the  Army  "a  medal  of  honor  cannot  be  awarded 
where  the  application  or  recommendation 
therefor  is  made  after  the  officer  or  pri-\-ate  has 
been  discharged  from  the  militarv  service"; 
following  24  Op.  Atty.  Gen.,  127,  which  held 
that  "the  President  cannot  grant  a  certificate 
of  merit  (to  an  enlisted  man  of  the  Army  who 
has  distinguished  himself  in  service)  if  the 
recommendation  therefor  by  the  commanding 
officer  or  chief  of  his  corps  was  made  after  the 
enlisted  man  was  discharged  from  the  military 


514 


The  Navy- 


Ft.  2.  REVISED  STATUTES. 


Sec.   1408. 


Bervice  " ;  construing  sections  1216  and  1285, 
Revised  Statutes,  as  amended;  see  also, 
8  Comp.  Dec,  875;  9  Comp.  Dec,  160.] 

Amendment  of  1901  held  to  be  retro- 
active.— Neither  section  1407  nor  the  law  on 
which  it  was  based  included  the  Marine 
Corps;  the  term  "seamen"  has  a  limited 
application  in  the  Navy  and  applies  only  to 
a  certain  class  of  enlisted  men.  The  words  of 
the  act  of  1864  and  section  1407,  "seamen  dis- 
tinguishing themselves"  are  prospective. 
Congress  changed  the  language  in  the  act  of 
March  3,  1901,  above  quoted,  to  embrace  any 
enlisted  man  of  the  Na\y  or  Marine  Corps, 
"who  shall  have  distinguished  himself,"  and 
provided  that  he  should  receive  the  benefits 
of  gratuity  and  medal  of  honor  authorized^  for 
seamen  in  section  1407.  The  act  of  1901  is  a 
beneficial  statute  and  should  be  liberally 
construed.  The  words  quoted,  when  taken 
in  connection  with  the  subject  matter  with 
which  Congress  was  legislating,  a.nd  the  other 
language  of  the  act,  render  the  act  retro- 
spective in  its  operation  and  give  to  the  act 
the  same  effect  as  if  it  had  been  a  part  of  section 
1407  when  it  was  enacted.  The  Judge  Advo- 
cate General  of  the  Na^^/,  in  an  opinion  con- 
struing the  act  of  1901,  held  that  said  act  is 
retroactive  to  the  date  of  the  enactment  of 
section  1407  of  the  Revised  Statutes;  that  had 
Congress  intended  that  the  act  of  1901  should 
be  limited  in  its  benefits  to  the  future  only, 
it  is  not  unreasonable  to  suppose  that  it  would 
have  employed  the  language  used  in  previous 
acts,  instead  of  changing  the  language  so  as 
to  be  susceptible  of  both  past  and  future 
application.  (7  Comp.  Dec,  844.  Compare 
cases  noted  in  Introduction,  under  "Statutory 
Construction,"  VI,  C,  7;  and  compare,  file 
8627-189,  May  12,  1915.) 

Jurisdiction  to  determine  merits  of 
case.— By  the  act  of  1901  it  devolves  upon  the 
commanding  officer,  the  flag  officer,  and  the 
Secretary  of  the  Navy  to  determine  when  an 
enlisted  man  of  the  Navy  or  Marine  Corps  shall 
have  80  distinguished  himself  in  battle  or  dis- 
played extraordinary  heroism  in  the  line  of  his 
profession  as  to  entitle  him  to  a  medal  of  honor 
by  virtue  of  said  act,  and  if  he  is  so  entitled,  and 
has  received  a  medal  of  honor  as  provided  for 
in  said  act,  but  has  not  received  the  gratuity  of 
$100,  he  is  entitled  to  receive  same.  (7  Comp. 
Dec,  844.) 

Appropriation  available  for  payment  of 
gratuity. — The  gratuity  of  $100  allowed  sea- 
men in  the  Navy  by  section  1407,  Revised  Stat- 
utes, is  in  the  nature  of  extra  compensation  or 
extra  pay,  and  is  properly  payable  from  the 
appropriation  "Pay  of  the  Navy."  The  act  of 
June  19,  1878  (20  Stat.,  167),  which  established 
a  "General  account  of  advances"  in  the  Navy, 
and  provided  "that  'Pay  of  the  Navy'  shall 
hereafter  be  used  only  for  its  legitimate  pur- 
pose, as  provided  by  law,"  was  intended  to  pro- 
hibit the  use  of  the  appropriation  "Pay  of  the 


Navy"  for  the  purpose  of  paying  in  the  first 
instance  items  properly  chargeable  to  other 
appropriations,  subject  to  transfer  upon  settle- 
ment by  the  accounting  oflScers  to  the  appropri- 
ation pro]>erly  chargeable  with  such  items,  as 
had  theretofore  been  the  practice,  and  not  to 
change  the  purposes  for  which  the  appropria- 
tion "Pay  of  the  Navy"  could  be  properly 
used.     (3  Comp.  Dec,  736.) 

Medal  is  personal  property  of  man  to 
whom  awarded. — A  medal  of  honor  is  the  per- 
sonal property  of  the  man  to  whom  awarded, 
and  the  na\ai  authorities  can  not  prevent  him 
from  wearing  same  after  his  discharge  for  bad 
conduct  or  undesirability,  and  when  he  ia  not 
under  naval  jurisdiction.  Buttons,  cap  orna- 
ments, figures,  letters,  and  chevrons,  etc,  are 
part  of  a  marine's  uniform,  furnished  to  him 
under  a  clothing  allowance,  and  may  properly 
be  removed  and  retained  when  he  is  so  dis- 
charged ;  but  medals  of  honor,  campaign  badges, 
and  insignia  received  because  of  past  meri- 
torious services  do  not  come  under  the  same 
category.  (File  26519-3:1,  Dec.  19,  1914,  and 
Jan.  13,  1915;  see  also  25  Op.  Atty.  Gen.,  529, 
and  act  June  3,  1916,  sec.  125,  39  Stat.,  216, 
forbidding  unauthorized  wearing  of  \mi- 
form.) 

Withholding  medal  after  award  but  prior 
to  deUvery. — By  desertion,  an  enlisted  man 
forfeits  his  right  to  pay  and  allowances  earned 
but  not  received,  and  the  term  "allowances," 
as  defined  in  United  States  v.  Landers  (92 
U.  S.,  77),  includes  medals  of  honor,  good  con- 
duct medals,  and  campaign  badges.  Accord- 
ingly, medals  of  honor,  awarded  but  not  de- 
livered, should  be  refused  in  cases  of  men  who 
have  subsequently  deserted  during  the  enlist- 
ment in  which  the  award  was  made,  even 
though  they  were  not  tried  therefor  by  court- 
martial  and  dishonorably  discharged.  How- 
ever, if  the  desertion  occurs  in  a  subsequent 
enlistment,  the  man  does  not  thereby  forfeit 
any  medal  or  badge  earned  but  not  delivered 
in  a  previous  enlistment.  (File  26519-3,  Dec. 
1,  1914.) 

"If  the  man  is  not  a  deserter,  but  his  service 
for  other  reasons  has  not  been  honorable,  he 
must,  nevertheless,  be  given  any  medal  of 
honor  to  which  he  would  otherwise  be  entitled, 
his  right  thereto  being  absolute  under  the  law." 
(File  26519-3,  Dec.  1,  1914.) 

Whether  section  1407  has  been  re- 
pealed as  to  medals. — \\Tiile  the  act  of 
February  4,  1919  (40  Stat.,  1056)  authorizing 
the  presentation  of  medals  of  honor,  etc.,  to 
persons  in  the  naval  service  does  not  expressly 
repeal  the  provisions  of  section  1407,  Revised 
Statutes,  as  enlarged  by  the  act  of  March  3, 
1901  (31  Stat.,  1099),  yet  as  the  scope  of  the 
later  legislation  indicates  that  Congress  was 
dealing  ^\'ith  the  entire  subject  involved,  the 
subsequent  provision  is  to  be  regarded  as  a 
complete  substitute  for  the  earlier  law.  (26 
Comp.  Dec,  464;  but  see  file  9644-489.) 


Sec.  1408.  [Mates;  rating  of  enlisted  men  as.]  Mates  may  be  rated, 
under  authority  of  tlie  Secretary  of  the  Navy,  from  seamen  and  ordinary 
seamen  who  have  enlisted  in  the  naval  service  for  not  less  than  two  years. — 
(17  May,  1864,  c.  89,  s.  3,  v.  13,  p.  79.     3  Mar.,  1865,  c.  124,  s.  3,  v.  13,  p.  539.) 


515 


Sec.  1408. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


Mates  of  steam  vessels  licensed  under  Title  LI  I 
of  the  Revised  Statute's  shall  be  subject  to 
draft  in  time  of  war,  only  for  the  perform- 
ance of  duties  such  as  rerjiured  by  their 
license,  and  while  performing;  such  dutieo 
in  the  service  of  the  United  States  shall  be 
entitled  to  the  highest  rate  of  wages  paid  in 
the  Merchant  Marine  of  the  United  States 
for  similar  services;  and  if  killed  or  wound- 
ed while  performing  such  duties  imder  the 
United  States,  they  or  their  heirs,  or  their 
legal  representatives  shall  be  entitled  to 
all  the  privileges  accorded  to  soldiers  and 
sailors  serving  in  the  Army  and  Navy,  un- 
der the  pension  laws  of  the  United  States. 
(Act  May  28,  1896,  sec.  2,  29  Stat.,  188, 
which   relates   also   to   licensed    masters, 
pilots,  and  engineers.) 
Pay  of  mates  who  were  serving  as  such  on  Au- 
gust  1,  1894,  was  fixed   by   act   of  that 
date  (28  Stat.,  212);  the  pay  of  other  mates 
was  fixed  by  section  1556,  Revised  Statutes. 
The  pay  of  all  mates  was  increased  25  per 
cent  by  act  May  13,  1908  (35  Stat.,  128). 
(See    below,    "Pay    and    allowances   of 
mates.") 
Retirement  of  mates  who  were  serving  as  such 
on  August  1,  1894,  was  provided  for  bv  act 
of  that  date   (28  Stat.,   212).     As  to  re- 
tirement of  other  mates,  see  act  March  3, 
1899,  section  17  (30  Stat.,  1008),  relating  to 
the  retirement  of  enlisted  men  and  ap- 
pointed petty  officers,  and  amendments  to 
said  act;  see  also  cases  noted  below. 
Term  of  enlistment  in  the  Navy,  see  note  to 
section  1418,  Revised  Statutes. 
Historical    note. — From    the    year    1799 
master's  mates  in  the  U.  S.  Navy  were  warrant 
officers,  except  when  acting  under  temporary 
and     probationary     appointments.     Warrants 
were  issued  to  them  after  at  least  one  year's 
sea  ser\dce    under    a    probationary  appoint- 
ment.    No  such  warrants  were,  however,  issued 
after  1843,  and  in  1847  a  regulation  of  the  Navy 
Department  forbade   commanding  ofiicers  to 
make  such  probationary  appointments.     (U.  S. 
V.  Fuller,  160  U.  S.,  593.) 

On  October  7,  18G3,  the  Secretary  of  the 
Na\'y  issued  the  following  circular:  "Seamen 
enlisted  in  the  naval  servdce  may  hereafter,  as 
formerly,  be  advanced  to  the  rating  of  master's 
mate,  and  such  rating  may  be  bestowed  by  the 
commander  of  a  squadron,  subject  to  the  ap- 
proval of  the  department,  or  by  the  commander 
of  a  vessel,  with  the  previous  sanction  of  the 
department.  Seamen  so  rated  will  be  entitled 
to  the  same  pay,  rank,  and  pri\'ileges  as  ap- 
pointed or  warranted  master's  mates,  but  vdll 
not  be  released  by  their  rating  from  the  obliga- 
tions of  their  enlistment,  and  may  be  disrated 
by  the  order  or  with  the  sanction  of  the  depart- 
ment. They  will  not,  while  rated  as  master's 
mates,  be  considered  as  subject  to  trial  by  a 
summary  court-martial,  nor  be  disrated  by 
transfer,  as  in  the  case  of  petty  officers.  Sea- 
men rated  as  master's  mates  will  not  be  dis- 
charged with  that  rating,  and  will  be  con- 
sidered as  disrated  to  seamen  upon  the  expira- 
tion of  their  enlistment,  but  upon  their  imme- 
diate reenlistment  the  rating  of  master's  mate 
may  be  considered  as  renewed.  The  accept- 
ance of  such  renewed  rating  will  be  considered 


as  renunciation  of  anv  claim  to  additional  pay 
for  reenlistment.  All  ratings  of  master's  mates 
made  by  order  of  the  commander  of  a  sfjuadron, 
and  all  such  ratings  renewed  by  reenlistment, 
will  be  reported  to  the  department  as  early  as 
practicable."     (U.  S.  r.  Fuller,  160  U.  S.,  593.) 

Prior  to  1843,  "masters  mates"  were  recog- 
nized by  the  law  as  warrant  officers,  or  as  "war- 
ranted master's  mates,"  and  appear  to  have 
been  sometimes  appointed  by  the  President 
and  sometimes  rated  (that  is,  promoted  from 
lower  grades)  by  commanding  officers.  But 
shortly  after  this  time  they  seem  to  have  fallen 
into  disuse,  and  no  further  appointments  were 
made,  although  the  grade  was  not  formally 
abolished  and  those  who  had  been  previously 
appointed  continued  to  hold  their  offices  and 
receive  their  pay.  At  the  outbreak  of  the  civil 
war,  however,  a  great  increase  in  all  the  naval 
forces  became  necessary,  and  the  Secretary  of 
the  Navy  made  temporary  appointments  of 
"acting  masters  and  master's  mates,"  which 
were  confirmed  by  act  of  Congress  of  July  24, 
1861,  c.  13,  12  Stat.,  272.  By  act  of  March  3, 
1865,  c.  124,  13  Stat.,  539,  their  names  were 
changed  to  that  of  "mates,"  and  the  Secretary 
of  the  Navy  was  authorized  to  increase  their  pay 
and  to  rate  them  from  seamen  and  ordinary 
seamen  who  had  enlisted  in  the  naval  sei-vice 
for  not  less  than  two  years.  By  the  act  of  Julv 
15,  1870,  c.  294,  16  Stat.,  321,  330,  they  were 
formally  recognized  as  a  part  of  the  naval  forces 
and  their  pay  was  fixed  at  S900  when  at  sea, 
$700  on  shore  duty,  and  $500  on  leave  or  waiting 
orders.  These  amounts  were  raised  in  1894,  28 
Stat.,  212.  Act  of  August  1,  c.  176.  (U.  S.  v. 
Fuller,  160  U.  S.,  593.) 

The  act  of  March  3,  1865  (13  Stat.,  539,  sec.  2), 
provided  as  follows:  "That  acting  masters' 
mates  shall  be  styled  mates,  and  the  Secretary 
of  the  Navy  is  hereby  authorized  to  increase 
their  pay  to  the  sum  of  not  exceeding  sixty 
dollars  per  month."     (9  Comp.  Dec,  600.) 

The  appointment  of  mates  as  at  present 
designated  was  first  authorized  by  Congress  in 
the  acts  of  May  17,  1864,  and  March  3,  1865  (13 
Stat.,  79,  539),  now  embodied  in  the  Revised 
Statutes,  section  1408.  The  quota  was  not 
fixed,  but  from  a  maximum  of  about  842  on 
January  1,  1865,  the  number  gradually  dimin- 
ished until  July  1,  1894,  when  there  were  27 
remaining,  the  majority  of  whom  had  had 
servdce  during  the  civil  war.  Prior  to  August 
1,  1894,  there  had  been  no  authority  for  the 
retirement  of  mates,  but  on  that  date  a  law 
was  passed  increasing  the  pay  of  mates  then  in 
the  service  and  providing  that  said  mates  should 
have  the  benefits  of  retirement  the  same  as 
warrant  officers.     (File  3031-40,  Mar.  11,  1908.) 

One  purpose  of  the  act  of  August  1,  1894  (28 
Stat.,  212),  was,  by  increasing  the  rates  of  pay 
for  active  service,  to  make  the  retired  pay  of 
mates  large  enough  to  induce  the  retirement  of 
these  officers,  which  was  also  provided  for  in 
this  act.  At  the  time  of  the  enactment  of  this 
legislation,  it  was  the  intention  to  allow  the 
grade  of  mate  to  gradually  go  into  abeyance, 
but  it  now  appears  to  be  the  purpose  of  the 
naval  authorities  to  revive  it,  which  may  be 
done  under  the  authority  conferred  by  section 
1408  of  the  Revised  Statutes.  (4  Comp.  Dec, 
124.     See  also  file  26255-14,  May  4,  1909,  quot- 


516 


The  Navy. 


PL  2.  REVISED   STATUTES. 


Sec.  1408. 


ing  debates  in  Congress  upon  act  of  Aug.  1, 
1894,  to  the  effect  that  after  retirement  of  mates 
then  in  the  ser\'it'e  no  further  apjjointments 
were  to  be  made  to  that  grade.) 

Mates  are  enlisted  men  and  should  be 
discharged  upon  expiration  of  enlist- 
ment.— The  contract  of  an  enlisted  man  is  a 
contract  to  serve  the  Government  in  that  capac- 
ity for  a  period  specified.  In  this  case,  upon 
the  expiration  of  the  mate 's  term  of  enlistment, 
his  contract  was  performed  and  was  no  longer  a 
bar  to  his  discharge  by  the  Government. 
Strictly  in  this  case  the  mates  should  have  been 
given  their  discharges  on  the  expiration  of  their 
enlistments.     (26  Op.  Atty.  Gen.,  319.) 

"Mates  in  the  Navy  should  be  discharged 
from  the  service  on  the  expiration  of  their  en- 
listments."    (File  3031-16,  Aug.  15,  1907.) 

"I  do  not  agree  with  the  Attorney  General 
that  strictly  mates  should  be  discharged  on  the 
expiration  of  their  enlistments,  as  section  1409, 
supra,  clearly  contemplates  that  no  further  en- 
listment after  their  rating  as  mates  is  necessary 
for  their  continuance  in  the  service  as  mates. 
Of  course  they  may  be  discharged  at  any  time, 
and  the  Secretary  of  the  Navy,  upon  the  sug- 
gestion contained  in  the  Attorney  General's 
opinion,  has  ordered  the  discharge  of  mates 
and  has  directed  that  they  may  reenlist  in  the 
rating  of  mate,  thus  establishing  a  new  prac- 
tice." (14  Comp.  Dec,  457;  compare  Navy 
Department  circular  of  Oct.  7,  1863,  quoted 
above,  under  "Historical  Note.") 

Mates  are  enlisted  men  who  are  rated  by  the 
Secretary  of  the  Navy,  and  such  rating  does 
not  discharge  them  from  their  enlistment. 
They  may  be  reenlisted  and  discharged  the 
same  as  other  enlisted  men.  (File  3031-57, 
June  25,  1908;  file  7657-445,  June  21,  1917.) 

Status  of  mates  when  not  discharged 
upon  expiration  of  enlistment. — An  en- 
listed man  in  the  Navy  who  was  appointed  as 
mate  and  continued  to  serve  as  such  after  the 
expiration  of  his  term  of  enlistment  without 
receiving  a  discharge  is  still  in  the  service  and 
entitled  to  his  discharge  and  may  be  permitted 
to  reenlist  with  the  benefits  of  continuous  serv- 
ice.    (26  Op.  Atty.  Gen.,  319.) 

As  far  as  concerns  any  question  here,  the 
contract  of  an  enlisted  man  differs  in  no  respect 
from  a  contract  by  one  individual  to  serve 
another  during  a  specified  period.  In  either 
case,  if  the  man  continues  to  perform  the  serv- 
ice until  the  end  of  the  period  specified,  and  if 
the  other  party  has  also  performed,  the  contract 
is  at  an  end.  Under  such  circumstances  an 
enlisted  man  could  not  require  the  Govern- 
ment to  retain  him  in  the  service,  nor  would 
the  Government  ordinarily  compel  him  to 
remain.  This  does  not  refer  to  those  special 
circumstances,  such  as  absence  from  the  United 
States,  etc.,  which  might  exceptionally  affect 
this  general  statement.  But  in  this  case,  as  in 
a  case  of  a  contract  between  individuals,  if 
neither  party  desires  to  terminate  the  service, 
but  it  continues  without  any  express  contract, 
it  will  be  held  to  be  a  continuance  of  the  service 
upon  the  same  terms  as  before,  but  not  for  any 
defimte  period.  That  the  mates  in  this  case 
were  not  discharged  upon  expiration  of  their 
enlistments  was  due  to  the  Government,  which 
is  estopped  to  say  that  these  men  are  not  in  the 


service  as  before.  Being  in  the  service  and 
their  terms  of  enlistment  having  expired,  they 
are,  of  course,  entitled  to  be  discharged;  and 
where  they  have  rendered  the  continuous  serv- 
ice required  by  the  regulations,  may  be  per- 
mitted to  reenlist  with  the  benefits  thereof. 
(26  Op.  Atty.  Gen.,  319.) 

Where  a  mate  was  not  discharged  from  the 
service  on  the  expiration  of  his  enlistment,  in 
accordance  with  the  Navy  Department's  in- 
structions of  August  15,  1907,  he  should  be  given 
a  discharge  to  take  effect  from  the  date  on  which 
issued.     (File  3031-19,  Oct.  25,  1907.) 

A  mate  of  the  Navy  who  was  not  discharged 
at  the  expiration  of  the  term  of  his  enlistment 
continues  to  be  an  enlisted  man  so  long  as  he 
holds  the  position  or  rating  of  mate.  (14  Comp. 
Dec,  457,  loUowing  26  Op.  Atty.  Gen.,  319.) 

Mates  are  not  "officers  of  the  Navy." — 
The  act  of  June  30,  1876,  section  1  (19  Stat., 
65),  provided  that  "officers  of  the  Navy" 
should  be  allowed  mileage  while  traveling  on 
public  business.  Mates  being  rated  by  the 
Secretary  of  the  Navy  "from  seamen  and  ordi- 
nary seamen  who  have  enlisted  in  the  naval 
service  for  not  less  than  two  years"  (sec.  1408, 
R.  S),  and  not  being  otherwise  appointed,  can 
not  be  classed  as  officers  within  the  meaning 
given  thereto  by  the  court  in  the  case  of  U.  S. 
V.  Mouat,  124  U.  S.,  303,  307  [noted  under  Con- 
stitution, Art.  II,  sec.  2,  clause  2,  "I.  Officers 
of  the  United  States  "  j.  In  the  act  of  1876  Con- 
gress is  presumed  to  have  used  the  word  in  the 
sense  in  which  "officers"  has  been  defined; 
and  there  being  no  language  in  the  act  con- 
veying a  different  sense,  the  court  must  give  it 
the  meaning  the  word  unequivocally  imports. 
Held,  therefore,  that  claimant,  a  mate,  was  not 
an  officer  within  the  meaning  of  the  law;  that 
he  was  not  appointed  by  the  President  or  by  a 
court  of  law,  and  that  the  action  of  the  Secre- 
tary of  the  Navy  in  rating  or  promoting  him 
from  seaman,  as  pro\"ided  in  section  1408,  was 
not  sufficient  action  on  the  part  of  the  Secretary 
as  head  of  the  Navy  Department  to  constitute 
him  an  appointed  officer,  nor  even  an  officer 
within  the  meaning  of  the  mUeage  act.  (Bax- 
ter i;.  U.  S.,  32  Ct.  Cls.,  75.) 

The  rating  of  an  enlisted  man  of  the  Navy 
as  mate  is  not  an  appointment  by  the  Secretary 
of  the  Navy.  He  remains  in  the  service  all  the 
time,  and  this  rating  is  in  effect  but  an  order 
which  he  must  obey  after  being  rated.  The 
question  of  acceptance  does  not,  therefore, 
arise,  because  he  has  no  choice  whether  he  will 
or  will  not  accept  the  rating  and  perform  the 
duties.     (13  Comp.  Dec,  514.) 

For  other  cases,  see  note  to  Constitution, 
Article  II,  section  2,  clause  2,  under  "I. 
Officers  of  the  United  States,"  and  see  below, 
"Mates  are  'officers  of  the  Navy'  for  certain 
purposes." 

Mates  are  not  warrant  officers.— The 
personnel  of  the  Navy  is  divided,  generally, 
into  commissioned  officers,  noncommissioned 
or  warrant  officers,  petty  officers,  and  seamen  of 
various  grades  and  denominations.  That  a 
mate  is  not  a  commissioned  officer  is  entirely 
clear;  it  is  equally  clear  that  he  is  above  the 
grade  of  seaman,  and  the  real  question  is 
whether  he  is  a  noncommissioned  or  warrant 
officer,  a  person  "temporarily  appointed  to  the 


517 


Sec.  1408. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


duties  of  a  commissioned  or  warrant  officer" 
or  a  "petty  officer."  (U.  S.  v.  Fuller,  160 
U.  S.,  593.) 

Mates  are  not  warrant  officers.  The  act  of 
August  1,  1894,  providing  that  "the  law  regu- 
lating the  retirement  of  warrant  officers  in  the 
Navy  shall  be  construed  to  apply  to  the  twenty- 
eight  officers  now  serving  as  mates  in  the  Navy  " 
"would  be  quite  unnecessary  if,  under  the  gen- 
eral provisions  of  law,  they  fell  within  the 
designation  of  warrant  officers."  (U.  S.  v. 
Fuller,  160  U.  S.,  593.) 

The  argument  that  a  '  'warrant' '  is  defined  to 
be  "an  instrument  conferring  authority  upon 
persons,  inferior  to  a  commission,"  and  that 
mates  must  therefore  be  warrant  officers, 
because  they  are  appointed  by  the  Secretary  of 
the  Navy,  proves  too  much,  since  all  petty 
officers  hold  some  sort  of  designation  from  a 
superior  authority;  and  if  a  warrant  be  an  in- 
strument inferior  to  a  commission,  this  would 
make  all  petty  officers  warrant  officers.  On 
the  other  hand,  as  by  section  1405  warrant 
officers  are  appointed  by  the  President,  it 
would  seem  to  follow  that  if  they  held  their 
appointments  from  an  inferior  authority  they 
were  not  to  be  considered  as  warrant  officers. 
After  some  hesitation  and  apparent  confusion 
of  opinion  on  the  part  of  the  Navy  Department, 
this  was  the  construction  of  the  Revised  Stat- 
utes finally  settled  upon  by  the  Navy  Regula- 
tions of  1893,  article  28,  and  we  think  it  is  cor- 
rect. The  only  difficulty  in  the  case  seems  to 
have  arisen  from  certain  acts  prior  to  the  Re- 
vised Statutes,  notably  the  act  of  1813,  which 
dealt  with  warranted  "master's  mates,"  under 
which  mates  continued  to  be  classified  by  the 
Navy  Department  as  warrant  officers  until  the 
Re\dsed  Statutes  were  adopted.  (U.  S.  v. 
Fuller,  160  U.  S.,  593.  See  also  note  to  sec. 
1405,  R.  S.,  under  "Warrant  officers  not  com- 
missioned officers.") 

Mates  retired  with  the  rank  and  pay  of  war- 
rant officer,  in  accordance  with  the  Attorney 
General's  opinion,  on  account  of  Civil  War 
service,  do  not  obtain  the  grade  of  warrant 
officers,  but  continue  to  be  mates  and  should 
be  eo  designated.  The  Navy  Department 
can  not,  therefore,  confer  upon  them  the  title 
of  a  grade  of  warrant  officers  to  which  they  do 
not  belong.     (File  3031-28,  Dec.  12,  1907.) 

Mates  are  not  "temporarily  appointed 
to  the  duties  of  a  commissioned  or  -war- 
rant oflB.cer." — We  think  there  is  no  authority 
for  saying  that  they  are  ternj:)orarily  appointed 
to  the  duties  of  a  warrant  officer  within  the  ex- 
ception to  section  1410,  Revised  Statutes. 
WTiile  the  words  "acting  master's  mates," 
sometimes  employed  prior  to  the  Revised 
Statutes,  might  indicate,  by  the  use  of  the  word 
"acting,"  a  person  temporarily  appointed  to 
the  duties  of  a  master's  mate,  officers  who  are 
recognized  by  law  and  whose  pay  is  fixed  by  a 
permanent  statute  can  not  be  said  to  be  tem- 
porarily appointed.  (U.  S.  v.  Fuller,  160  U.  S., 
593.) 

Mates  are  "  petty  officers." — Mates  are 
petty  officers,  and  as  such  are  entitled  to 
rations  or  commutation  therefor,  under  sec- 
tions 1579  and  1585,  Revised  Statutes.  (U.  S. 
V.  Fuller,  160  U.  S.,  593,  afiirming  30  Ct.  Cls., 
108;  see  also  Baxter  v.  U.  S.,  32  Ct.  Cls.,  108.) 


Mates  had  not  been  regarded  as  petty  officers 
by  the  Treasury  Department  nor  by  tjfie  Navy 
Department  prior  to  the  adoption  of  the  Navy 
Regulations  of  1893.  (U.  S.  v.  Fuller,  160 
U.  S.,593.) 

Mates  are  officers  not  holding  commissions 
or  warrants  and  not  entitled  to  them  within  the 
meaning  of  section  1410,  Revised  Statutes, 
and  are  therefore  jietty  officers,  promoted  by 
the  Secretary  of  the  Navy  from  seamen  of 
inferior  grades,  who  have  enlisted  for  not  less 
than  two  years,  and  they  are  distinguished  from 
other  petty  officers  only  in  the  fact  that  their 
pay  is  fixed  by  statute  instead  of  by  the  Presi- 
dent. The  exception  of  mates  from  other 
petty  officers,  in  section  1569,  indicates  that 
they  are  petty  officers.  (U.  S.  v.  Fuller,  160 
U.  S.,  593.) 

Mates  are  "officers  of  the  Navy"  for 
certain  purposes. — Mates  whose  names  are 
borne  on  the  retired  list  of  officers  of  the  Na\^'^, 
in  accordance  with  the  act  of  August  1,  1894 
(28  Stat.,  212),  are  officers  of  the  Navy,  but  they 
are  neither  commissioned  nor  warrant  officers, 
although  with  respect  to  the  law  regulating 
retirements,  they  are  placed  upon  the  same 
footing  as  warrant  officers  under  the  act  of  June 
29,  1906  (34  Stat.,  554),  providing  for  advanced 
rank  on  retirement  of  officers  who  served 
during  the  Civil  War._    (260p.  Atty.  Gen.,  433.) 

Although  commissioned  officers  of  the  Navy 
are  appointed  by  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate,  warrant 
officers  by  the  President  alone,  and  mates  by 
the  head  of  a  department,  all  are  alike  officers 
of  the  United  States,  and  in  accordance  with 
the  acts  of  1894  and  1906,  all  are  alike  entitled 
to  the  benefits  of  the  advancement  provided 
for  by  the  last-mentioned  act  whenever  other- 
wise qualified.  (26  Op.  Atty.  Gen.,  433.  But 
see  above,  "Mates  are  not  'officers  of  the 
Navy.'") 

Not  only  is  it  expressly  provided  in  section 
1409  that  when  an  enlisted  man  becomes  a 
mate,  his  duties  and  rights  as  an  enlisted  man 
remain  unaffected,  but  the  same  provision  is 
made  with  respect  to  warrant  officers;  and  if 
the  fact  of  enlistment  should  be  held  a  bar  to 
securing  the  benefits  of  the  act  of  1906  in  the 
case  of  mates,  this  might  be  equally  true  with 
respect  to  warrant  officers  as  well.  (26  Op. 
Atty.  Gen.,  433.) 

Mates  who  were  in  the  Navy  on  August  1, 
1894,  are  officers  within  the  meaning  of  section 
11  of  the  Navy  personnel  act  of  March  3,  1899 
(30  Stat.,  1007),  and  of  the  act  of  June  29,  1906 
(34  Stat.,  554),  both  relating  to  advanced  rank 
on  retirement  of  officers  who  served  during  the 
Civil  War.     (26  Op.  Atty.  Gen.,  615.) 

"For  the  purposes  of  retirement  certain 
mates  are  considered  as  officers."  (File  3031- 
28,  Dec.  12,  1907.) 

Article  1-4912  (3\  Naval  Instructions,  1913, 
provides  for  the  witnessing  of  signatures,  and 
states  that  "in  the  case  of  enlisted  men  each 
signature  shall  be  wntnessed  by  an  officer." 
Article  R-4384  (1),  Navy  Regulations,  1913, 
requires  that  pay  receipts  shall  bear  "an 
officer's  signature  as  witness  to  the  genuineness 
of  that  of  the  man,"  and  that  "no  officer  shall 
witness  a  receipt  unless  it  be  actually  signed  in 
his  presence  and  he  be  personally  acquainted 


518 


The  Navy. 


PL  2.  RE  VISED  STAT  UTES . 


Sec.  1408. 


with  the  signer."  Held,  "as  it  is  not  specified 
that  the  witnessing  officer  be  of  any  particular 
rank,  but  merely  that  the  signature  shall  be 
witnessed  by  an  officer,  and  as  it  was  decided 
by  the  Attorney  General  (26  Op.  Atty.  Gen., 
433),  that  a  mate  is  an  officer  of  the  Navy,  the 
department  sees  no  objection  to  the  witnessing 
of  the  pay  receipts  of  enlisted  men  by  a  mate 
in  the  Navy."     (P'ile  4856-15,  June  18,  1913.) 

In  the  summary  court-martial  case  of  W.  J. 
Stookey,  chief  commissary  steward  on  the 
receiving  ship  at  Mare  Island,  in  1908,  Mate 
G.  Johnson  was  recorder  of  the  court.  Accused 
applied  to  have  the  proceedings  set  aside  on 
the  ground  that  Mate  Johnson  was  not  an 
officer,  and  that  article  27  of  the  Articles  for 
the  Government  of  the  Navy  (sec.  1624,  R.  S.), 
required  an  "officer"  to  act  as  recorder;  that 
the  court-martial  was  therefore  illegal.-  The 
point  was  decided  that  Mate  Johnson  was  an 
officer,  and  that  the  court  was  therefore  legal. 
Accused  was  discharged  pursuant  to  sentence. 
(File  26287^7,  Aug.  22,  1908;  see  also  file 
4856-15,  May  14,  1913,  letter  from  captain  of 
the  yard,  navy  yard.  Mare  Island,  Cal.) 

"Mate  Johnson  has  acted  as  recorder  of  sev- 
eral courts-martial  recently,  and  performed  this 
duty  for  a  long  time  on  the  receiving  ship,  which 
would  seem  to  establish  the  point  definitely." 
(File  4856-15,  May  14,  1913,  letter  from  captain 
of  the  yard,  navv  yard,  Mare  Island,  Cal.) 

Article  R-4512  (l),_Navy  Regulations,  1913, 
provides  that  certain  "officers,"  including 
mates  on  duty  at  certain  stations  or  any  such 
"officers"  on  special  duty  or  on  detached 
service  on  shore,  are  entitled  to  commutation 
for  quarters,  etc. 

Certain  mates  held  to  be  both  "  ofi&cers 
of  the  Navy  "  and  "  enlisted  men." — 
Mates  who  were  in  the  Navy  on  August  1,  1894, 
are  officers  of  the  Navy  for  the  purpose  of  re- 
tirement, although  enlisted  men,  and  entitled 
as  such  to  discharge  upon  expiration  of  en- 
listment. A  person  can,  under  the  provisions 
of  sections  1409  and  1410,  Revised  Statutes, 
be  at  the  same  time  an  officer  of  the  Navy  and 
an  enlisted  man.     (26  Op.  Atty.  Gen.,  433.) 

"  The  status  of  mates  in  the  Navy  is 
in  the  highest  degree  anomalous. — They 
have  been  considered  as  petty  officers,  ap- 
pointed from  the  enlisted  force,  and  regarded 
as  enlisted  men.  This  view  has  been  re- 
enforced  by  an  opinion  of  the  Attorney  General, 
dated  July  22,  1907,  in  which  it  is  held  that  a 
man  who  was  enlisted  for  service  in  the  Navy 
for  a  period  of  four  years  and  was  appointed 
as  mate  and  continued  to  serve  as  such  after 
the  expiration  of  his  term  of  enlistment  without 
receiving  any  discharge,  may  have  hia  appoint- 
ment as  mate  revoked  and  be  permitted  to 
reenlist,  with  the  benefit  of  continuous  service. 
This  condition  has,  however,  been  complicated 
by  a  later  opinion,  given  October  15,  1907, 
in  which  the  Attorney  General  holds  that 
certain  mates  whose  names  are  borne  on  the 
retired  list  of  the  officers  of  the  Navy,  having 
been  placed  there  in  accordance  with  the 
statute  approved  August  1,  1894  (28  Stat.,  212), 
are  entitled  to  advancement  in  accordance 
with  the  provisions  of  the  act  of  June  29, 
1906  (34  Stat.,  554),  to  the  lowest  grade  of 
warrant  officers.     Hence,  for  the  purposes  of 


retirement,  certain  mates  are  considered  as 
officers  *  *  *.  Also,  it  may  be  stated  that, 
although  mates  are  considered  as  enlisted  men 
for  the  purposes  of  discharge  and  reenlistment, 
yet  they  are  debarred  from  the  benefits  of  the 
additional  pay  allowed  other  enlisted  men  for 
succeeding  reenlist  me nts.  They  are  usually 
appointed  from  chief  petty  officers  having  long 
and  creditable  records,  who  may  receive  a 
maximum  pay  of  approximately  *  *  *,  but 
upon  appointment  as  mate  their  pay  drops 
immediately  to  *  *  *,  notwithstanding  the 
greater  responsibilities  of  the  position."  (File 
3031-32,  Feb.  12,  1908.) 

There  are  no  similar  grades  in  the  Army  to 
those  of  warrant  officers  and  mates.  (File  3031- 
40,  Mar.  11,  1908.)  [By  act  of  July  9,  1918  (40 
Stat.,  881),  the  grades  of  master,  first  mate, 
second  mate,  chief  engineer,  and  assistant  en- 
gineer were  established  in  the  Army  Mine 
Planter  Service  of  the  Coast  Artillery  Corps 
of  the  Regular  Army,  "who  shall  be  warrant 
officers  ajipointed  by  and  holding  their  offices 
at  the  discretion  of  the  Secretary  of  War." 
By  act  of  June  4,  1920  (41  Stat.,  761),  the  ap- 
pointment  was  authorized  of  not  more  than 
1,120  warrant  officers,  including  band  leaders.] 

Retirement  of  mates  -who  -were  in,  the 
service  August  1,  1894. — There  was  doubt 
whether  the  law  relating  to  the  retirement  of 
officers  of  the  Navy  [sees.  1443-1455,  1588,  R. 
S.],  applied  to  any  but  commissioned  officers, 
but  this  doubt  was,  by  the  Navy  Department, 
resolved  in 'favor  of  warrant  officers,  which  con- 
struction was  confirmed  by  the  Supreme  Court 
in  Brown  v.  U.  S.,  113  U.  S.,  568.  However, 
it  was  never  held  to  apply  to  mates;  and  in 
order  that  the  28  officers  then  serving  as  mates 
might  have  the  benefit  of  its  provisions,  the  act 
of  August  1,  1894  (28  Stat.,  212),  was  passed. 
This  act  went  no  further  than  merely  to  extend 
the  provisions  of  the  retirement  law  to  these 
mates,  and  had  not  the  effect  of  promoting  them 
on  retirement  to  the  rank  and  pay  of  retired 
warrant  officers,  but  entitled  them  to  be  placed 
on  the  retired  list  with  the  rank  of  mate  and 
three-fourths  the  sea  pav  of  that  grade.  (27 
Op.  Atty.  Gen.,  334.) 

Doubtless  "warrant  officers"  were  specially 
mentioned  in  the  act  of  August  1,  1894,  because 
they  were  the  only  noncommissioned  officers  to 
whom  the  statute  had  been  construed  to  apply, 
and  it  was  intended  thereby  to  emphasize  the 
purpose  that  section  1588,  Revised  Statutes,  was 
to  be  just  as  applicable  to  these  mates  as  to 
warrant  officers,  by  entitling  them  to  three- 
fourths  of  the  pay  of  their  grade,  and  not  to 
confer  upon  them  on  retirement  the  retired  pay 
of  an  advanced  grade.  Furthermore,  this  act 
was  thus  construed  by  the  Navy  Department 
ever  since  its  passage,  which  fact  would  be 
controlling  in  case  of  doubt.  (27  Op.  Atty. 
Gen.,  334.) 

Prior  to  the  act  of  August  1,  1894,  mates  had 
not  enjoyed  the  privilege  of  retirement.  The 
"law  regulating  the  retirement  of  warrant 
officers,"  which  by  the  terms  of  this  act  was  to 
be  construed  to  apply  to  certain  mates,  is  con- 
tained in  sections  1443-1455,  Revised  Statutes. 
(See  Brown  v.  U.  S.,  18  Ct.  Cls.,  537;  113  U.  S., 
568.)  The  retired  pay  of  officers  of  the  Navy  at 
the  time  of  the  enactment  of  this  law  was  fixed 


519 


Sec.  1408. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


by  section  1588  of  the  Revised  Statutes.  Were 
the  question  a  new  one,  it  wouUl  still  seem 
phiin  that  the  purpose  of  the  act  of  1894  was 
merely  to  extend  to  mates  the  same  privilege 
of  retirement,  with  three-fourths  of  their  sea 
pay,  that  was  enjovetl  by  warrant  officers  of 
the  Navn^.     (Kle  26"255-14,  May  4,  1909.) 

Retii-ement  of  mates  who  served  during 
the  Civil  War. — The  mates  who  were  in  the 
service  on  August  1,  1891,  were  place<l  by  the 
act  of  that  date  on  the  same  footing  as  warrant 
officers  for  purposes  of  retirement;  and  when 
such  mates  had  creditable  Civil  War  service, 
they  are  entitled,  in  the  discretion  of  the  Presi- 
dent, by  and  with  the  advice  and  consent  of 
the  Senate,  to  the  benefit  of  the  advancement 
provided  in  the  case  of  retired  officers  under  the 
circumstances  enumerated  in  the  act  of  June 
29,  1906  (34  Stat.,  554).  ^^^ule  the  effect  oi 
such  advancement  will  not  be  to  place  them  in 
a  different  grade,  they  will  obtain  the  rank  and 
retired  pay  belonging  to  the  next  higher  grade, 
being  that  of  the  lowest  grade  of  warrant  officers. 
(26  Op.  Atty.  Gen.,  433.) 

The  retired  pay  of  a  mate  in  the  Navy, 
whether  retired  under  section  11  of  the  Navy 
personnel  act  of  March  3,  1899  (30  Stat.,  1007), 
or  under  the  act  of  June  29,  1906  (34  Stat.,  554), 
is  the  retired  pay  of  a  warrant  officer  with  the 
same  length  of  previous  service,  which  is  three- 
fourths  of  the  sea  pay  of  such  officer.  (26  Op. 
Atty.  Gen.,  599.) 

Tiie  only  mates  who  have  the  benefits  of  re- 
tirement with  the  rank  and  retired  pay  of  war- 
rant officers,  are  those  who  were  in  the  service 
at  the  time  of  the  passage  of  the  act  approved 
August  1,  1894,  and  who  had  creditable  Civil 
War  service  in  accordance  with  the  terms  of  the 
act  of  June  29,  1906  (34  Stat.,  554).  (File 
3031-38,  Mar.  6,  1908.) 

Where  a  mate  was  retired  by  reason  of  age,  in 
accordance  with  the  act  of  August  1,  1894,  but 
was  not  on  such  retirement  advanced  in  rank 
on  account  of  Civil  War  service,  in  accordance 
with  section  11  of  the  Navy  personnel  act  of 
March  3,  1899  (30  Stat.,  1007);  and  thereafter 
his  retirement  was  corrected  in  conformity  with 
the  Attorney  General's  opinion  (26  Op.  Atty. 
Gen.,  433)  above  noted:  Held,  that  he  should 
be  given  the  advancement  from  the  date  of  his 
retirement  (September  26,  1899)  and  not  from 
the  date  of  the  Navv  Department's  letter  to 
him  of  November  26,  1907.  (26  Op.  Atty. 
Gen.,  599.) 

Mates  who  were  in  the  service  on  August  1, 
1894,  were  entitled  to  retirement  by  act  of 
that  date  under  the  following  circumstances: 
(a)  After  40  years'  service;  (6)  upon  reacliing 
the  age  of  62  years;  (c)  for  physical  disability 
incurred  in  line  of  duty  (file  3031-40,  Mar.  11, 
1908).  By  section  17  of  the  Navy  personnel 
act  of  March  3,  1899  (30  Stat.  1008),  provision 
was  made  for  the  retirement  of  enlisted  men, 
upon  their  own  ap])lication,  after  thirty  years' 
service.  This  law  was  applicable  to  mates  who 
were  not  already  entitled  to  retirement,  under 
laws  relating  to  oflicers.  [See  cases  noted  be- 
low.] On  March  31,  1899,  a  mate  (one  of  those 
in  the  service  on  Aug.  1,  1894)  was,  upon  his 
own  application,  placed  upon  the  retired  list 
in  accordance  with  section  17  of  the  Navy 
personnel  act,  the  Navy  Department  deciding 


that  he  was  entitled  to  the  benefits  of  retire- 
ment aa  an  enlisted  man  after  thirty  years' 
service,  although  he  could  not  otherwise  have 
i)een  retired  (as  an  officer)  until  April  16,  1902, 
the  date  on  which  he  would  have  attained  the 
age  of  62  years.  Thereafter  it  was  contended 
by  this  mate  that  he  was  erroneously  retired  by 
the  Navy  Department  under  the  law  relating 
to  enlisted  men,  and  was  entitled  to  retirement 
under  the  laws  relating  to  warrant  officers, 
which  would  give  him  the  retired  pay  of 
advanced  rank  on  account  of  civil  war  service: 
Held,  that  his  contention  should  be  sustained, 
and  his  retirement  corrected  so  as  to  show  him 
retired  with  the  rank  and  retired  pay  of  the 
next  higher  grade,  namely,  that  of  a  warrant 
officer  having  twelve  years'  service,  in  accord- 
ance with  the  act  of  August  1,  1894,  and  sec- 
tion 11  of  the  Navy  personnel  act  of  March  3, 
1899,  and  that  he  should  be  given  the  benefit 
of  such  increased  rank  and  pay  from  April  16, 
1902,  the  earliest  date  on  whicli  he  could  have 
been  retired  under  the  laws  relating  to  officers. 
By  accepting  the  erroneous  decision  of  the 
Navy  Department,  this  mate  did  not  waiv^e  or 
forfeit  any  legal  right  which  he  had  to  be 
retired  otherwise.  (26  Op.  Atty.  Gen.,  615; 
27  Op.  Atty.  Gen.,  66.) 

The  mates  held  by  the  Attorney  General  to 
be  entitled  to  the  rank  and  pay  of  "the  lowest 
grade  of  warrant  officer,"  under  the  act  of  June 
29,  1906  (34  Stat.,  554),  should  be  nominated 
to  have  the  "rank  and  retired  pay  of  a  warrant 
officer  in  the  Navy,"  and  not  to  have  the  rank 
and  retired  pay  of  any  particular  grade  of  war- 
rant officer,  inasmuch  as  all  warrant  officers 
are  on  the  same  footing  as  relates  to  rank,  pay, 
and  allowances.  (File  3031-21,  Nov.  20, 
1907.) 

The  nomination  of  a  deceased  mate,  in  whose 
case  the  President  approved  a  recommenda- 
tion that  he  be  advanced  one  grade  under  the 
act  of  June  29,  1906  (34  Stat..  554),  but  who 
died  after  such  approval  but  prior  to  nomina- 
tion, should  read  in  the  usual  form,  with  the 
addition  thereto  of  the  word  "died,"  with  the 
date  on  which  death  occurred.  (File  3031-21, 
Nov.  20,  1907;  see  also  25  Op.  Atty.  Gen., 
312,  noted  under  sec.  1458,  R.  S.,  "Death  of 
officer  before  promotion  complete.") 

Retirement  of  mates  as  enlisted  men. — 
Mates  rated  as  such  since  August  1,  1894,  are 
entitled  to  retirement  under  the  provisions  of 
an  act  of  Congress  approved  ]\Iarch  2,  1907  (34 
Stat.,  1217),  providing  for  the  retirement  of 
enlisted  men  after  thirty  years'  service.  (File 
3031-17,  Sept.  13,  1907.) 

A  mate  whose  rating  as  such  was  subsequent 
to  the  passage  of  the  act  of  August  1,  1894  (28 
Stat.,  212),  is  an  "enlisted  man"  within  the 
meaning  of  the  act  of  March  2,  1907  (34  Stat., 
1217),  providing  for  the  retirement  of  enlisted 
men  of  the  Army,  Nav>%  and  Marine  Corps. 
The  rating  of  an  enlisted  man  as  mate  did  not 
discharge  him  from  his  enlistment,  and  the 
term  "enlisted  man"  in  the  general  sense  in 
which  it  is  used  in  the  above  act  is  broad 
enough  to  bring  him  within  its  provisions. 
(18  Comp.  Dec,  575.) 

Mates  may  be  retired  after  thirty  years'  serv- 
ice under  the  acts  of  IMarch  3,  1899,  section  17 
(30  Stat.,  1008),  and  March  2,  1907  (34  Stat., 


520 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1408. 


1217);  there  is  no  restriction  as  to  age.  (File 
3031-38,  Mar.  6,  1908.) 

The  pro\dsions  of  the  Revised  Statutes  relat- 
ing to  the  retirement  of  commissioned  officers 
(sees.  1448-1455)  have  been  held  to  apply  to 
warrant  officers;  but  in  order  that  they  might 
apply  to  mates  who  were  in  the  service  on 
August  1,  1894,  a  special  act  approved  on  that 
date  was  required.  Mates  who  were  not  in 
the  service  on  that  date  were  not  as  such  eli- 
gible to  retirement  until  the  passage  of  the  act 
of  March  3,  1899,  section  17  of  which  provided 
for  the  retirement  of  enlisted  men  or  appointed 
petty  officers  after  thirty  years'  service.  The 
manner  of  computing  the  30  years'  service  was 
somewhat  modified  by  an  act  approved  June 
22,  1906,  the  pro\T.sions  of  which  are  embodied 
in  the  act  of  March  2,  1907  (34  Stat.,  1217). 
The  act  of  1899  provides  specially  for  the  retire- 
ment of  enlisted  men  and  appointed  petty 
officers;  the  act  of  1907,  which  has  been  held 
to  apply  to  mates,  refers  to  enlisted  men,  with 
no  mention  of  officers  or  petty  officers.  Com- 
missioned and  warrant  officers  were  obviously 
not  entitled  to  thirty-year  retirement  by  the 
language  of  the  act  of  1899  as  modified  by  the 
act  of  1907,  and  did  not  become  entitled  thereto 
until  the  act  of  May  13,  1908.  (File  3031-57, 
June  25,  1908.) 

Inasmuch  as  retirement  for  enlisted  men  and 
appointed  petty  officers  after  thirty  years' 
service  is  covered  in  prior  acts  which  specific- 
ally refer  to  such  persons,  and  as  it  has  already 
been  held  that  mates  are  eligible  to  retirement 
thereunder,  it  must  be  held  that  the  words  "an 
officer  of  the  Navy,"  in  the  thirty-year  retire- 
ment clause  of  the  act  of  May  13,  1908,  did  not 
include  mates  appointed  since  August  1,  1894. 
Accordingly  held  that  such  mates  may  be  re- 
tired in  conformity  with  the  laws  relating  to 
enlisted  men,  but  may  not  retire  as  officers 
under  the  thirty-year  retirement  clause  in  the 
act  of  May  13,  1908;  and  that  such  mates  may 
not  on  retirement  be  given  the  rank  of  the  next 
higher  grade  on  account  of  Civil  War  service, 
as  provided  for  officers  by  the  act  of  June  29, 
1906.     (File  3031-57,  June  25,  1908.) 

Waiver  of  retirement  privileges. — A 
mate  appointed  since  August  1,  1894,  but  who 
had  service  as  an  enlisted  man  during  the  Civil 
War,  not  being  entitled  to  retirement  with  the 
rank  of  the  next  higher  grade,  as  authorized  by 
law  for  commissioned  and  warrant  officers 
having  Civil  War  ser\ace,  may  be  appointed 
a  boatswain  shortly  before  retirement  on  con- 
dition that,  in  consideration  of  said  appoint- 
ment and  his  retirement  as  boatswain,  he 
waive  his  right  to  retirement  with  the  rank  of 
chief  boatswain,  to  which,  upon  appointment 
as  boatswain,  he  would  legally  become  entitled 
on  account  of  his  Civil  War  service.  (File 
3031-57,  July  31,  1908,  case  of  Mate  Thomas  G. 
McDonough,  appointed  a  boatswain  in  the 
NaA^  Aug.  6,  1908,  and  retired  as  boatswain 
Feb.  6,  1909,  upon  his  own  application  after 
30  years'  service.  Compare  U.  S.  v.  Andrews, 
240U.  S.,9q.) 

Bj  accepting  retirement,  under  an  erroneous 
decision  of  the  Xavy  Department,  with  a  lower 
rank  and  rate  of  pay  than  that  to  which  he  was 
legally  entitled,  a  mate  did  not  waive  or  forfeit 
any  legal  right  which  he  had  to  be  retired  other- 


wise; and  his  retirement  should  be  corrected, 
retroactively,  so  as  to  confer  upon  him  the 
higher  rank  and  pay  to  which  he  was  entitled. 
(26  Op.  Atty.  Gen.,  615;  27  Op.  Atty.  Gen.,  66, 
noted  more  fully  above,  under  "Retirement  of 
mates  who  served  during  the  Civil  War.") 

Pay  and  allowances  of  mates. — The  pay 
of  mates  is  fixed  by  law;  those  in  the  servdce 
August  1,  1894,  by  the  act  of  that  date  (28  Stat., 
212);  those  appointed  since,  by  section  1556  of 
the  Revised  Statutes.  When  a  man  is  appoint- 
ed a  mate  his  pay_  does  not  depend  upon  his 
length  of  service,  it  merely  depends  upon  the 
character  of  his  duty — whether  at  sea,  on  shore, 
or  on  leave,  or  waiting  orders;  he  receives  no 
increase  for  longevity,  as  do  the  warrant  and 
other  officers.  (File  3031-40,  Mar.  11,  1908. 
See  also  4  Comp.  Dec,  124.  The  pay  of  all 
mates  was  increased  25  per  cent  by  act  of  May 
13,  1908,  35  Stat.,  128.) 

Although  mates  are  considered  as  enlisted 
men  for  the  purjjoses  of  discharge  and  reenlist- 
ment,  yet  they  are  debarred  from  the  benefits 
of  the  additional  pay  allowed  other  enlisted 
men  for  succeeding  reenlistments.  They  are 
usually  appointed  from  chief  petty  officers 
having  long  and  creditable  records,  whose  pay 
upon  appointment  as  mate  may  immediately 
be  reduced,  notwithstanding  the  greater  respon- 
sibilities of  the  position.  (File  3031-32,  Feb. 
12,  1908.) 

The  pay  of  an  enlisted  man  as  mate  begins  on 
the  date  of  his  rating  as  mate,  or  on  the  date 
such  rating  is  made  to  take  effect,  without  re- 
gard to  the  date  of  the  administering  to  him  of 
an  oath  for  the  performance  of  his  duties  as  such ; 
his  rating  is  not  an  appointment,  but  an  order 
which  he  must  obey,  and  which  he  has  no" 
choice  but  to  accept.     (13  Comp.  Dec,  514.) 

"^Tiere  a  mate  of  the  Navy,  upon  being  honor- 
ably discharged  while  serving  as  such  after  the 
expiration  of  the  term  of  his  enlistment,  reen- 
lists  in  the  rating  of  mate  within  four  months 
from  such  discharge,  he  is  entitled  to  the  four 
months' gratuity  pay  provided  by  section  1573, 
Revised  Statutes,  as  amended  by  act  of  March 
3,  1899,  computed  on  the  pay  he  was  recei\dng 
at  the  time  he  was  discharged.  (14  Comp.  Dec, 
457;  file3031-19,  Oct.  25, 1907;  Comp.  Dec,  Feb. 
27, 1908,  file  3031-35,  84  S.  and  A.  Memo.,  589.) 

Mates  in  the  Navy  are  petty  officers,  and  their 
pay  being  specifically  fixed  by  section  1556  of 
the  Re\dsed  Statutes,  and  any  additional  pay 
or  allowance  thereto  being  prohibited  by  sec- 
tion 1558  of  the  Re\dsed  Statutes,  they  are  not 
entitled  upon  reenlistment  within  the  provi- 
sions of  section  1573  of  the  Revised  Statutes,  as 
amended  by  act  of  March  3, 1899,  in  the  rating  of 
mates,  to  theincrease  of  pay  per  month  pro\aded 
therein  for  enlisted  men  who  reenlist  within 
such  pro^dslons.  (14  Comp.  Dec,  457;  see  also 
9  Comp.  Dec,  600;  Comp.  Dec,  Feb.  27,  1908, 
file  3031-35,  84  S.  and  A.  Memo.,  589.) 

Mates  of  the  Navy  being  specifically  excepted 
from  the  pro\dsions  of  section  1569  of  the  Re- 
vised Statutes,  under  authority  of  which  the 
extra  compensation  for  good-conduct  medals  and 
bars,  seamen  gunners'  certificates,  and  petty 
officers'  certificates,  is  prowled,  they  are  not 
entitled  to  such  extra  compensation.  (14 
Comp.  Dec,  457;  see  also  9  Comp.  Dec,  600, 
and  file  3031-7,  Jan.  12,  1907.) 


521 


Sec.  1408. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


Mates  are  not  entitled  to  one-fourth  addi- 
tional pay  for  detention  beyond  expiration  of 
enlistment,  as  pnndded  by  section  1422,  Re- 
vised Statutes,  as  amended,  for  the  reason  that 
this  18  additional  pay  to  that  specifically  pro- 
\'ided  by  eet^tion  1556,  Rexdsea  Statutes,  and 
therefore  prohibited  by  section  1558,  Revised 
Statutes.  Also,  the  detention  of  mates  who 
were  not  discharged  upon  expiration  of  enlist- 
ment, was  not  such  a  detention  in  the  service 
as  contemplated  by  the  statute.  (14  Comp. 
Dec.,  457.) 

A  mate  honorably  discharged  on  account  of 
the  expiration  of  his  enlistment,  while  serving 
after  the  expiration  of  the  term  of  his  enlist- 
ment, is  entitled  to  travel  allowance  on  dis- 
charge provided  for  enlisted  men  bv  act  of 
June  29,  1906  (34  Stat.,  555).  This  is  not  pay, 
but  a  provision  to  assist  enlisted  men  of  the 
Navy  to  return  to  their  homes  or  places  where 
the  Government  took  them  into  the  service; 
is  a  beneficial  statute,  and  following  the  rule 
in  such  cases,  the  Comptroller  has  been  liberal 
in  construing  it  and  other  similar  provisions 
for  enlisted  men  of  the  military  service.  (14 
Comp.  Dec,  457.) 

Mates,  although  their  pay  is  fixed  by  law, 
instead  of  by  the  President,  are  in  other  re- 
spects entitled  to  the  emoluments  of  petty 
officers,  among  which  are  rations.  The  ex- 
ception of  mates  from  section  1569,  Revised 
Statutes,  merely  indicates  that  Congress, 
having  already  fixed  their  pay,  such  pay 
need  not  be  fixed  by  the  President.  But  they 
are  still  within  the  exception  of  "petty  ofiicers, 
seamen,  and  ordinary  seamen  attached  to 
receiving  ships,"  who  are  inferentially  allowed 
a  ration  by  section  1579,  and  the  exception 
of  petty  officers,  from  those  who  are  not  en- 
titled to  rations  under  section  1579,  indicates 
that  as  such  they  are  entitled  to  a  ration. 
(U.  S.  V.  Fuller,  160  U.  S.,  593.) 

In  the  case  of  United  States  v.  Fuller  (160 
U.  S.,  593),  affirming  the  judgment  of  the  Court 
of  Claims  (30  Ct.  Cls.,  108),  it  was  held  that 
"mates  are  petty  officers,  and  as  such  entitled 
to  rations  or  commutation  therefor."  The 
claimant,  therefore,  being  a  petty  officer, 
clearly  has  a  right  to  recover  the  commutation 
price  of  a  Navy  ration  while  8er^^Jlg  as  a  mate 
on  board  a  receiving  ship.  (Baxter  v.  U.  S., 
32  Ct.  Cls.,  75;  12  Comp.  Dec,  728.) 

The  status  of  a  mate  as  to  rations,  or  com- 
mutation thereof,  while  serving  at  sea,  is  not 
affected  by  his  discharge  and  reenlistment  in 
the  rating  of  mate.  (Comp.  Dec,  Feb.  27, 
1908,  file  3031-35,  84  S.  and  A.  Memo.,  589.) 

\\Tiile  on  shore  duty  a  mate  would  be  en- 
titled, while  performing  such  duty,  to  com- 
mutation of  quarters,  provided  he  did  not 
occupy  public  quarters.  (Comp.  Dec,  Feb. 
27,  1908,  file  3031-35,  84  S.  and  A.  Memo.,  589.) 

The  act  of  March  3, 1901  (31  Stat.,  1107),  pro- 
vided under  the  head  of  Pay  of  the  Navj^,  for 
' '  commutation  of  quarters  for  officers  on  shore, 
not  occupying  public  quarters,  including 
*  *  *  mates,  who  shall  hereafter  receive 
the  same  commutation  for  quarters  as  second 
lieutenants  of  the  Marine  Corps."  (12  Comp. 
Dec,  728.) 

'  For  other  references  to  the  pay  of  mates,  see 
note  to  section  1556,  Revised  Statutes. 


Mates  eligible  for  appointment  and  pay- 
as  Navy  mail  clerks. — "A  mate  being  an 
enlisted  man  is  eligible  for  selection  and  desig- 
nation as  Navy  mail  clerk  under  the  act  of 
May  27,  1908"  (35  Stat.,  417).  It  has  been 
held  that,  as  the  pay  of  mates  is  fixed  by  sec- 
tion 1556,  Revised  Statutes,  they  are  not  en- 
titled to  any  additional  pay  as  enlisted  men  or 
as  mates,  by  reason  of  section  1558,  Revised 
Statutes.  The  prohibition  in  the  latter  section, 
however,  applies  only  to  compensation  for 
performance  of  duties  as  mate,  and  the  addi- 
tional allowances  refer  to  such  allowances  for 
duties  required  by  the  enlistment  and  rating 
as  mate.  Navy  mail  clerks  and  assistant  Navy 
mail  clerks  perform  new  and  additional  duties, 
which  are  not  those  of  enlisted  men  or  of  mates, 
and  were  not  contemplated  by  the  prohibition 
contained  in_  section  1558.  Accordingly,  held, 
that  a  mate  is  entitled  to  receive  the  pay  pro- 
vided for  Navy  mail  clerk,  when  duly  desig- 
nated as  such,  in  addition  to  his  pay  as  mate. 
(Comp.  Dec,  Oct.  21,  1908,  92  S.  and  A.  Memo. 
870.) 

Revocation  of  appointment. — The  ap- 
pointment of  a  mate  should  not  be  revoked, 
unless  requested  by  the  holder.  If  so  re- 
quested, it  may_  be  revoked,  in  which  case 
he  would  be  considered  as  holding  a  permanent 
appointment  in  the  rating  from  which  last 
advanced,  and  if  discharged  in  that  rating, 
should  be  reenlisted  therein.  (File  3031-19, 
Oct.  25,  1907.) 

Mates  cannot  legally  be  rated  from  men 
enlisted  for  less  than  two  years. — To  en- 
title an  enlisted  man  to  the  pay  pro\dded  by 
section  1556  of  the  Revised  Statutes  for  mates, 
he  must  have  been  rated  during  an  enlistment 
of  not  less  than  two  years.  A  man  rated  as  mate 
on  August  24,  1897,  while  serving  in  an  enlist- 
ment of  one  year,  was  not  entitled  to  the  pay  of 
mate  on  that  •  rating.  He  was  actually  dis- 
charged from  his  enlistment  on  December  13, 
1897,  and  served  thereafter  under  his  appoint- 
ment as  mate,  without  reenlistment,  until 
November,  1907.  As  he  was  recognized  by 
the  Navy  Department  as  a  mate  and  performed 
the  duties  of  a  mate,  he  may  be  considered  as  a 
de  facto  mate  during  that  service  (Aug.  24, 
1897  to  Nov.,  1907);  and  having  received  the 
pay  provided  by  law  for  a  mate,  he  is,  for  the 
reasons  stated  in  the  case  of  Badeau  v.  U.  S. 
(130  U.  S.,  439),  entitled  to  retain  it.  (Comp. 
Dec,  Jan.  30,  1908,  83  S.  and  A.  Memo.,  565, 
566;  see  also  note  to  sec.  236,  R.  S.,  under  VIII 
(C),  "Mistake  of  law.") 

Appointment  as  wrarrant  ofla.cers. — 
Mates  appointed  to  the  grades  of  warrant 
officers  are  not  "promoted"  to  said  grades,  but 
are  "appointed"  thereto,  in  the  same  manner 
as  any  enlisted  man  of  the  Nai'y  might  have 
been  appointed.  The  grade  of  boatswain  is 
not  the  next  higher  grade  above  the  rating  of 
mate,  any  more  than  is  any  other  warrant 
grade,  or  in  fact  any  other  corps  of  the  Navy. 
(File  3031-12,  July  10,  1907.  For  other  cases 
see  note  to  sec  1458,  R.  S.,  under  "  'Promotion' 
and  'appointment'  compared.") 

The  Navy  Department  does  not  deem  it  de- 
sirable to  make  an  exception  in  the  case  of  a 
mate  who  makes  application  to  take  the  exami- 
nation for  boatswain  in  the  Navy,  and  who,  at 


522 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1409. 


the  date  of  the  next  examination,  would  be 
about  9^  years  above  the  maximum  age  pre- 
scribed for  candidates  for  that  grade.  (File 
3031-55,  June  16,  1908;  see  note  to  sec.  1405, 
R.  S.,  under  "Ages  of  candidates  for  appoint- 
ment.") 

A  mate  may  be  appointed  a  boatswain  a  few 
months  before  he  becomes  eligible  for  retire- 
ment, on  condition  that  he  waive  his  right  to 


retirement  with  the  rank  of  chief  boatswain  on 
account  of  civil  war  service,  to  which  he  would 
become  entitled  upon  his  appointment  as 
boatswain.  (File  3031-57,  July  31,  1908,  case 
of  Thomas  G.  McDonough,  appointed  a  boat- 
swain in  the  Navy  Aug.  6,  1908,  and  retired 
as  boatswain  Feb.  6,  1909,  upon  his  own  appli- 
cation after  30  years'  service.  Compare  U.  S. 
V.  Andrews,  240  U.  S..  90.) 


Sec.  1409.  [Mates  and  warrant  officers;  not  discharged  from  enlistment.] 
The  rating  of  an  enlisted  man  as  a  mate,  or  his  appointment  as  a  warrant  officer, 
shall  not  discharge  him  from  his  enlistment. — (17  May,  1864,  c.  89,  s.  3,  r.  13, 
p.  79.     3  Mar.,  1865,  c.  124,  s.  3,  v.  13,  p.  539.) 


Historical  note. — Section  3  of  the  act  of 
March  3,  1865  (13  Stat.,  539),  provided  "that 
hereafter  mates  may  be  rated,  under  authority 
of  the  Secretary  of  the  Navy,  from  seamen  and 
ordinary  seamen  who  have  enlisted  in  the  naval 
service  for  not  less  than  two  years,  and  such 
rating  of  an  enlisted  man,  or  his  appointment 
as  an  officer,  shall  not  discharge  him  from  his 
enlistment."  The  substance  of  this  section 
was  embodied  in  sections  1408  and  1409  of  the 
ReA-ised  Statutes,  the  portion  relating  to  the 
appointment  of  an  enlisted  man  as  an  "officer" 
being  interpreted  to  mean  his  appointment  as  a 
"warrant  officer."     (9  Comp.  Dec,  600.) 

Sec.  1409  does  not  apply  to  appoint- 
ments as  commissioned  officers. — A  man 
while  ser\'ing  an  enlistment  as  chief  yeoman  was 
appointed  paymaster's  clerk  and  then  giA-en  an 
appointment  as  assistant  paymaster.  Beld,  that 
the  continuity  of  his  service  was  broken  by  his 
acceptance  of  a  commission;  that  his  enlistment 
was  as  effectually  terminated  by  his  appoint- 
ment as  assistant  paymaster  as  though  he  had 
served  out  the  term  for  which  he  enlisted;  and 
that  "it  certainly  can  not  be  ruled  that  an  ajj- 
pointment  as  a  commissioned  officer  causes  no 
separation  from  an  enlisted  service  under  which 
the  appointee  was  serving,  and  that  no  break 
in  the  enlisted  serAdce  would  be  occasioned  if 
the  service  as  commissioned  officer  continued 
for    four    months."     (Comp.    Dec,    Nov.    29, 

1899,  11  MS.  Comp.  Dec,  628;  and  Feb.  15, 

1900,  12  MS.  Comp.  Dec,  547;  see  also  Comp. 
Dec,  June  24,  1903,  27  S.  and  A.  Memo.,  222.) 

Ser\ice  as  a  commissioned  officer  is  incom- 
patible with  service  as  an  enlisted  man. 
(Comp.  Dec,  June  24,  1903,  27  S.  and  A. 
Memo.,  222.) 

The  act  of  May  22,  1917  (40  Stat.,  84),  con- 
templates the  preservation  of  the  enlisted 
status  of  men  temporarily  appointed  to  warrant 
and  commissioned  rank  under  that  act;  other- 
wise there  would  be  nothing  to  which  they 
could  "revert"  upon  the  termination  of  their 
temporary  appointment  as  required  by  section 
7  of  said  act.  Accordingly,  there  is  no  legal 
objection  to  providing  that  enlisted  men,  tem- 
porarily appointed  warrant  or  commissioned 
officers,  shall  not  be  discharged  from  their  en- 
listments upon  the  acceptance  of  such  appoint- 
ments; and,  if  their  enlistments  expire  while 
holding  under  temporary  appointments  as  war- 
rant or  commissioned  officers  they  shall  not  be 
discharged  until  the  termination  of  their  tem- 
porary appointments.     Upon  reverting  to  his 


former  status,  if  his  enlistment  has  expired 
while  holding  such  temporary  appointment, 
the  man  will  immediately  be  given  his  dis- 
charge and  final  settlement.  The  act  thus 
ajiplied  creates  the  apparent  anomaly  of  a  per- 
son occupying  the  dual  status  of  officer  and  en- 
listed man,  but  such  a  status  is  not  unknown  to 
the  naval  service  (citing  sec  1409,  R.  S.). 
Withholding  their  discharges  and  final  settle- 
ments under  such  circumstances  does  not 
amount  to  detaining  them  in  the  service;  by 
their  acceptance  of  such  appointments  under 
the  conditions  imposed  by  the  statute  they  are 
deemed  to  have  voluntarily  waived  their  right 
to  discharge  upon  the  expiration  of  their  terms 
of  enlistment  and  to  have  accepted  all  of  the 
conditions  imposed  by  the_  statute,  including 
the  recjuirement  as  to  reverting  upon  the  termi- 
nation of  their  temporary  appointments.  (File 
7657-445,  June  21,  1917.) 

Applies  only  to  mates  and  warrant 
officers. — The  Navy  Regulations,  1900,  article 
861,  provided:  "^^Tien  enlisted  men  accept 
*  *  *  appointments  as  paymasters'  clerks 
their  enlistments  terminate  on  the  date  of  tak- 
ing the  oath  under  such  *  *  *  appoint- 
ments, and  ser\dce  thereunder  for  a  longer 
period  than  four  months  debars  them  from  all 
benefits  of  previous  enlisted  service  in  com- 
puting increased  pay  under  subsequent  enlist- 
ments." An  enlisted  man  who  accepted  an 
appointment  as  paymaster's  clerk  while  this 
regulation  was  in  force  thereby  terminated  his 
eiilistment.  Section  1409  of  the  Revised 
Statutes  is  not  applicable  to  this  case,  as  the 
claimant,  a  paymaster's  clerk,  is  neither  a  mate 
nor  warrant  officer.  (10  Comp.  Dec,  529. 
Note:  The  title  "paymaster's  clerk"  wag 
changed  to  ' '  pay  clerk ' '  and  the  status  of  pay 
clerks  changed  to  that  of  warrant  officers,  by 
act  Mar.  3,  1915, _  38  Stat.,  942,  which  also 
created  a  subordinate  grade  designated  as 
"acting  pay  clerk"  and  the  commissioned 
grade  of  chief  pay  clerk.  The  acceptance  of 
an  appointment  as  acting  pay  clerk  ipso  facto 
terminates  the  appointee's  enlistment.  File 
26254-2020:4,  Mar.  15,  1918;  C.  M.  0  30,  1918, 
p.  24.) 

May  be  extended  by  regulations  to  in- 
clude others  than  mates  and  warrant 
officers. — The  NaAy  Regulations,  1896,  article 
821,  provided  that  "an  enlisted  man  rated  as  a 
mate  or  appointed  a  warrant  officer  or  clerk  is 
not  thereby  discharged  from  his  enlistment." 
This  regulation  was  a  repetition  of  section  1409 


54641°— 22- 


523 


Sec.  1409. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


with  the  adclltion  of  the  word  "clerk."  A 
di'i):ir(inontal  rcj^ulation  has  the  force  of  law 
when  not  contrary  to  })opiti\e  law,  and  thore  is 
no  such  law  that  would  nes^ti\e  the  regulation 
quoted.  Accordingly,  held  that  an  enlisted 
man  apiiointed  a  paymaster's  clerk  while  thia 
regulation  waa  in  force,  and  who  continued  to 
serve  out  the  unexpired  portion  of  his  enlist- 
ment after  his  appointment  as  paymaster's 
clerk  was  revoked,  was  continuously  in  the 
service  as  an  enlisted  man  and  that  there  was 
no  break  in  his  enlistment  by  reason  of  his  serv- 
ice as  temporary  paymaster's  clerk,  but  that 
the  service  was  fully  authorized  by  article  821 
of  the  Navy  Regulations  then  in  force,  and 
therefore  the  appellant  is  entitled  to  the  bene- 
fits of  continuous  service  authorized  by  section 
1573,  Revised  Statutes,  as  amended  by  section 
16  of  the  NaA-y  personnel  act  of  March  3,  1899 
(30  Stat.,  1008).  (Comp.  Dec,  June  24,  1903, 
27  S.  and  A.  Memo. ,  222.  See  note  to  preceding 
paragraph  concerning  change  in  status  of  pay- 
master's clerks.) 

Clerical  service  is  not  incompatible  with 
service  as  an  enlisted  man.  Enlisted  men  are 
frequently  required  to  perform  clerical  duties, 
and  in  such  cases  in  the  Army  are  entitled  to 
extra  pay  for  such  duty.  (Comp.  Dec,  June 
24,  1903,  27  S.  and  A.  Memo.,  222.) 

Regulation  can  not  extend  provisions  of 
this  section  to  include  other  than  mates 
and  warrant  oflB.cers. — Statutory  law  can  not 
be  amended  by  regulation,  and  it  is  well  settled 
that  where  certain  grants  are  made,  or  privileges 
conferred  by  statute,  such  grants  or  privileges 
can  not  be  enlarged  or  extended  by  regulation 
to  persons  or  classes  to  whom  they  are  not  ex- 
tended by  the  statute.  It  is  not  within  the 
power  of  the  executive  to  write  the  words  "or 
paymaster's  clerks"  into  section  1409.  That 
would  be  legislation.  The  history  of  the  regu- 
lations shows  that  the  Navy  Department  former- 
ly attempted  to  do  this  by  framing  a  regulation 
in  the  terms  of  section  1409  except  that  the 
words  "or  clerk"  were  inserted  after  the  words 
"warrant  officer";  but  in  a  later  edition  of  the 
regulations  this  was  corrected.     The  views  ex- 

Eressed  by  the  Comptroller  of  the  Treasury  in 
is  decision  of  June  24,  1903  [noted  above],  are 
contrary  to  this  conclusion,  but  nevertheless 
held,  that  the  power  to  extend  such  a  statutory 
provision  _  by  means  of  a  Navy  regulation, 
although  it  would  be  convenient  to  do  so  in 
many  instances,  does  not_  exist;  further,  held, 
that  the  existing  regulation,  which  provides 
that  when  enlisted  men  accept  appointments  as 
paymaster's  clerks  their  enlistments  terminate 
on  the  date  of  taking  the  oath  under  such  ap- 
pointments, can  not  be  waived  in  an  individual 
case,  because,  while  any  Navy  regulation  may 
be  annulled,  amended,  suspended,  or  waived 
by  the  same  power  that  framed  it  in  the  first 
instance,  this  rule  is  sul)ject  to  the  proviso  that 
such  action  must  not  be  in  conflict  with  any 
statute.  (File  8C27-03,  Dec.  30,  1903;  see, 
generally,  note  to  sec.  161,  R.  S.) 

Revocation  of  warrant  officer's  ap- 
pointment.— The  President  has  no  power  to 
revoke  the  warrant  of  a  boatswain  in  the  Navy 
and  discharge  him  from  tlie  service,  without  the 
sentence   of  a  court-martial,  in  disregard   of 


sections  1229  and  1624  (art.  36)  of  the  Revised 

Statutes.     (28  Op.  Atty.  Gen.,  325.) 

A  boatswain  is  an  oflicer  of  the  NaA^  -within 
the  restrictions  of  the  above  sections  of  the 
Revised  Statutes  (1229  and  1624,  art.  36),  con- 
cerning dismissal.  (28  Op.  Atty.  Gen.,  325; 
see  also  15  Op.  Atty.  Gen.,  635.) 

The  tenure  of  a  boatswain's  office  is  fixed  by 
legislation.  After  it  was  thus  established,  it 
was  not  within  the  power  of  the  President  to 
limit  it  by  tlie  incorporation  in  the  warrant  of 
the  provision  that  it  was  to  continu3  in  force 
during  the  pleasure  of  the  President.  The 
revocation  of  the  warrant  effects  a  discharge 
from  the  office,  and,  by  a  reasonable  construc- 
tion of  sec.  1229,  a  dismissal  from  service.  (28 
Op.  Atty.  Gen.,  325.) 

The  question  is  not  affected  by  the  provisions 
of  section  1409.  A  warrant  officer  may,  before 
the  term  of  his  enlistment  has  expired,  by  the 
sentence  of  a  court-martial,  or  by  resignation  of 
his  office,  be  returned  to  the  condition  of  an 
enlisted  man;  but  there  is  no  statutory  authority 
for  the  President  to  relegate  to  his  former  in- 
ferior position  a  regularly  warranted  officer, 
who  has  been  promoted  from  his  place  as  an 
enlisted  man,  for  the  purpose  of  discharging 
him.  This  is  contrary  to  the  spirit,  if  it  is  not 
to  the  very  letter,  of  the  law  of  section  1229, 
Revised  Statutes.     (28  Op.  Atty.  Gen.,  325.) 

"T^Tiile  it  would  be  most '  desirable  that 
authority  should  be  given  to  the  President  to 
revoke  the  commission  or  warrant  of  an  officer 
con^'icted  of  an  offense  and  sentenced  to  im- 
prisonment by  a  civil  court,  yet  no  such  ex- 
ception is  found  in  the  law  to  the  sweeping 
provisions  of  section  1229."  (28  Op.  Atty. 
Gen.,  325.) 

Revocation  of  rating  as  mate. — See  note 
to  section  1408,  Revised  Statutes. 

Reduction  of  warrant  officer  to  ordinary 
seaman. — Under  article  9  of  the  Articles  for 
the  Government  of  the  Navy  (sec.  1624,  R.  S.), 
an  officer  who  absents  himself  from  his  com- 
mand without  leave  may,  by  the  sentence  of  a 
court-martial,  be  reduced  to  the  rating  of  an 
ordinary  seaman.  Inasmuch  as  such  a  sen- 
tence deprives  a  warrant  officer  of  his  position 
as  a  warrant  officer  in  the  U.  S.  Navy,  and 
as  article  53  (sec  1624,  R.  S.)  provides  that 
no  sentence  extending  to  the  dismissal  of  a 
commissioned  or  warrant  officer  shall  be  carried 
into  execution  until  confirmed  by  the  President, 
it  is  deemed  advisable  as  a  matter  of  policy, 
although  not  specifically  required  by  the 
statute,  to  submit  the  record  of  the  general  court- 
martial  in  such  case  to  the  President  for  con- 
firmation of  the  sentence  ad j  udged .  ( File  2625 1- 
11440, Mar. 30, 1916;  C.M.O.  11-1916.)  [Inthis 
case  the  sentence  was  confirmed  by  the  Presi- 
dent April  3,1916;  shortly  thereafter,  the  warrant 
officer  thus  reduced  to  ordinary  seaman  was 
tried  by  general  court-martial  as  an  ordinary 
seaman  on  other  charges,  sentenced  to  be  dis- 
honorably discharged  from  the  Navy,  and  upon 
approval  of  the  sentence  by  the  Secretary  of 
the  Navy  it  was  dulv  carried  into  effect.  G.  C. 
M.  Rec,  No.  31934."J 

Deposit  accounts  of  mates  and  warrant 
officers. — Upon  the  appointment  of  an  en- 
listed man  as  a  mate,  his  deposit  account  should 


524 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1410. 


be  treated  as  thou?:h  his  enlistment  had  ex- 
pired, i.  e.,  he  should  be  paid  principal  and  in- 
terest to  the  date  of  his  appointment  as  mate. 
(File  16407,  July  28,  1903,  and  3031-5,  Nov.  27, 
1906,  construing  act  Feb.  9,  1889,  sec.  1,  25 
Stat.,  657.  Note:  These  rulings  were  made 
before  the  practice  of  discharging  mates  upon 
expiration  of  enlistment,  as  explained  in  note 
to  sec.  1408,  R.  S.,  was  commenced.) 

While  ser^-ing  under  an  acting  appointment 
as  warrant  officer,  the  status  of  an  enlisted  man 
clearly  continues  as  that  of  an  enlisted  man; 
he  must  qualify  for  a  permanent  appointment 
by  probationary  service,  or  otherwise  would  be 
discharged  from  the  ser\dce  as  an  enlisted 
man.  He  should  accordingly,  while  serving 
under  such  acting  appointment,  be  permitted 
to  make  deposits,  and  to  draw  interest  on  de- 
posits already  made.  Upon  permanent  ap- 
pointment his  deposit  account  should  be 
treated  as  though  his  enlistment  had  expired, 
that  is,  he  should  be  paid  principal  and  interest 
to  the  date  of  his  appointment,  as  was  held  by 
the  Navy  Department  in  the  case  of  mates,  be- 
fore the  present  practice  was  commenced  of 
discharging  and  reenlisting  them.  (File  26254- 
2020,  June  6,  1916.) 

The  act  of  February  9,  1889  ^25  Stat.,  657), 
provides  that  deposits  may  be  made  by  "any 
enlisted  man  or  appointed  petty  officer  of  the 
Navy."  Had  it  been  intended  to  include 
warrant  officers  it  would  undoubtedly  have 
specifically  so  pro\dded,  as  it  did  with  petty 
officers.  Warrant  officers  are  not  in  practice 
discharged  after  a  fixed  period  of  service,  but 
their  tenure  of  office  is  practically  for  life, 
unless  sooner  terminated  by  resignation,  sen- 
tence of  court-martial,  or  in  other  exceptional 
manner.     A^Tiile  section  1409,  Re\-ised  Statutes, 


provides  that  the  appointment  of  an  enlisted 
man  as  a  warrant  officer  "shall  not  discharge 
him  from  his  enlistment,"  nevertheless,  since 
the  act  of  P^ebruary  9,  1889,  does  not  include 
warrant  officers,  it  is  necessary  that  upon  ap- 
pointment as  such  their  deposits,  made  while 
enlisted  men,  be  returned  in  the  same  manner 
as  though  discharged;  otherwise  the  men 
might  be  deprived  of  deposits  for  life.  (File 
26254-2020,  June  6,  1916.) 

Warrant  officers  not  regarded  as  en- 
listed men. — In  the  case  of  an  enlisted  man 
appointed  as  warrant  officer,  although  his  ap- 
pointment does  not  discharge  him  from  his  en- 
listment, he  is  not  reenlisted  upon  the  expira- 
tion of  his  enlistment  contract,  but  continues 
on  under  his  sole  status  as  warrant  officer.  He 
is  not  regarded  as  an  enlisted  man  after  he  gets 
his  warrant,  even  before  the  expiration  of  his 
enlistment.  There  is  no  reason  for  preserving 
his  enlisted  status  after  he  has  received  his 
warrant,  because  he  does  not  at  any  time,  by 
operation  of  law,  revert  to  his  previous  status 
as  an  enlisted  man.  (File  7657^^45,  June  21, 
1917.) 

Discharge  and  reenlistment  of  acting- 
■warrant  oflS.cer. — Inasmuch  as  section  1409 
clearly  contemplates  the  concurrence  of  the 
status,  duties,  and  obligations  of  an  enlisted 
man  and  that  of  a  warrant  officer,  and  in  view 
of  the  practice  of  the  Bureau  of  Navigation  in 
the  matter,  held,  that  there  is  no  objection  to 
the  reenlistment  of  an  acting  warrant  officer 
whose  term  of  four  years  has  expired;  this  ^^ith 
a  view  to  preserving  to  the  man  his  continuous 
service  should  he  fail  to  be  warranted.  (File 
7267-03.) 

Discharge  and  reenlistment  of  mates. — 
See  note  to  section  1408,  ReAised  Statutes. 


Sec.  1410.  [Acting  officers;  petty  officers;  secretaries  and  clerks.]  All 
officers  not  holding  commissions  or  warrants,  or  who  are  not  entitled  to  them, 
except  such  as  are  temporarily  appointed  to  the  duties  of  a  commissioned  or 
warrant  officer,  and  except  secretaries  and  clerks,  shall  be  deemed  petty 
officers,  and  shall  be  entitled  to  obedience,  in  the  execution  of  their  offices,  from 
persons  of  inferior  ratings.— (17  July,  1862,  c.  204,  s.  18,  v.  12,  p.  610.) 

See 


Acting    appointments    as    pay    officers 

section  1381,  Revised  Statutes. 
Acting  assistant  surgeons.     See  section   1411, 

Revised  Statutes. 
Acting  chaplains.     See  act  of  June  30,  1914  (38 

Stat.,  403). 
Acting  ensigns  for  engineering  duty  only  were 

authorized  by  act  of  August  29,  1916  (39 

Stat.,  580). 
Acting  ensigns  and  acting  lieutenants  (junior 

grade)  in   the   Navy,   and   acting  second 

lieutenants   and   acting   first   lieutenants, 

in  the  Marine  Corps,  for  aeronautic  duty 

only,  were  authorized  bv  act  of  August  29, 

191(3  (39  Stat.,  583). 
Acting  flag  officers.     See  sections  1434  and  1464, 

Revised  Statutes. 
Acting  machinists.     See  act  of  March  3,  1899, 

section  15  (30  Stat.,  1007). 
Acting  pay  clerks.     See  act  of  March  3,  1915 

(38  Stat.,  942). 
Acting  -warrant  oflB.cers.— The  Secretary 
of  the  Navy  may  legally  appoint  acting  gunners 


in  the  Navy,  and  the  power  to  make  such  ap- 
pointments is  strongly  implied  by  section  1410, 
Revised  Statutes.  A  right  to  appoint  gunners 
to  an  undefined  extent  (see  sec.  1405,  R.  S.) 
does  not  conclude  against  the  power  to  appoint 
acting  gunners  also.  (15  Op.  Attv.  Gen.,  564. 
Note:  By  act  July  15,  1870,  sec."l3,  16  Stat., 
334,  it  was  provided  "that  all  acts  or  parts  of 
acts  authorizing  the  appointment  of  tem- 
porary acting  officers  in  the  Navy  be,  and  the 
same  are  hereby,  repealed,  except  as  to  as- 
sistant surgeons.") 

An  acting  gunner  is  not,  as  such,  even  a 
petty  officer.  Accordingly,  the  laws  (sees. 
1229  and  1624,  art.  36,  R.  S.)  making  provision 
as  to  dismissals  of  "officers"  from  the  naval 
service,  do  not  apply  to  the  case  of  an  acting 
gunner.     (15  Op.  Atty.  Gen.,  564.) 

Acting  appointments  as  boatswains,  gunners, 
and  carpenters  are  issued  pursuant  to  Navy 
Regulations,  1913,  article  R-3312.  Other 
acting  appointments  are  specifically  authorized 
by  laws  noted  above. 


525 


Sec.  1410. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


Acting  commissioned  officers. — "An  of- 
ficer duly  appoinUHi  to  act  in  any  grade  sliall, 
while  serving  under  such  appointment,  be 
entitled  to  the  same  command,  precedence, 
and  honors  as  if  he  held  a  commisaion  in  that 
grade  of  the  etime  date  as  his  appointment." 
(Art.  R-1048,  Navy  Regs.,  1913.) 

In  accordance  with  the  general  custom, 
acting  oiiicerf,  both  in  the  Army  and  Navy, 
do  not  hold  commissions.  (File  13707-38:7, 
Aug.  20,  1914.) 

"Officers"  and  "  eniisted  men"  de- 
fined.— The  term  "all  officers"  in  sectiqn  1410, 
Revised  Statutes,  is  a  general  designation, 
which  includes  petty  officers.  (Muse  v.  U.  S., 
19  Ct.  Cls.,  441.) 

Petty  officers  and  warrant  officers  in  the 
Navv  are  generally  spoken  of  as  officers,  and 
the  jlevised  Statutes,  section  1410,  recognizes 
the  usage;  but  all  petty  officers  are  not  officers 
within  the  sense  of  the"  Constitution  or  of  penal 
stiitutes.  (Muse  v.  U.  S.,  19  Ct.  Cls.,  441; 
see  also  note  to  Constitution,  Art.  II,  sec.  2, 
clause  2,  under  "I.  Officers  of  the  United 
States.") 

Within  the  meaning  of  the  Articles  for  the 
Government  of  the  Navy  (sec.  1624,  R.  S.), 
"unless  there  be  something  in  the  context  or 
subject  matter  repugnant  to  or  inconsistent 
with  such  construction,  officers  shall  mean 
commissioned  and  warrant  officers;  superior 
officers  shall  be  held  to  include  mates  and 
petty  officers  of  the  Navy  and  noncommis- 
sioned officers  of  the  Marine  Corps,  in  addition 
to  the  officers  enumerated."  (Naval  Courts  and 
Boards,  1917,  p.  86.) 

Witliin  the  meaning  of  the  Articles  of  War 
relating  to  the  Army,  '  'unless  the  context  shows 
that  a  different  sense  is  intended,  *  *  *  the 
word  'officer'  shall  be  construed  to  refer  to  a 
commissioned  officer."  (Sec.  1342,  R.  S.,  art.  1, 
as  amended  by  act  Aug.  29,  1916,  39  Stat.,  650.) 

Within  the  meaning  of  the  War  Risk  Insur- 
ance Act  of  October  6,  1917  (40  Stat.,  401),  '  'the 
term  'commissioned  officer'  includes  a  warrant 
officer,  but  includes  only  an  officer  in  active 
service  in  the  military  or  naval  forces  of  the 
United  States.  *  *  *  The  terms  '  man '  and 
'enlisted  man'  mean  a  person,  whether  male  or 
female,  and  whether  enlisted,  enrolled,  or 
drafted  into  active  service  in  the  military  or 
naval  forces  of  the  United  States,  and  include 
noncommissioned  and  petty  officers,  and  mem- 
bers of  training  camps  authorized  by  law." 
(See  sec.  22  of  act  cited.) 

The  Navy  consists  of  officers,  warrant  officers, 
petty  officers,  and  seamen.  Some  of  the  war- 
rant and  petty  officers  of  the  Navy  may  be 
officers  technically,  because  appointed  by  the 
head  of  a  department;  and  others  may  be 
officers  only  by  courtesy,  because  they  are 
appointed  by  the  chief  of  a  bureau  or  the  com- 
mander of  a  ship;  but  the  two  terms,  "officers" 
and  "enlisted  men"  are  manifestly  used  in 
section  1600,  Revised  Statutes,  to  include  the 
four  classes  of  the  Navy.  (Muse  v.  U.  S., 
19  Ct.  Cls.,  441.) 

"There  are  three  sorts  of  officers  known  to 
the  Navy,  viz.,  commissioned,  warrant,  and 
petty  (sec.  1410);  and  inasmuch  as,  by  section 
1624,  article  30,  petty  officers  may  be  'dis- 


charged from  the  service  with  bad  conduct 
discharge, '  by  order  of  a  summary  court-martial, 
it  seems  that  by  'officers'  in  article  36  is  meant 
at  most  only  warrant  and  commissioned 
officers."     (15"0p.  Atty.  Gen.,  635.) 

Cadets  at  the  Naval  Academy,  by  statutory 
definition^  are  not  to  be  included  in  general 
in  legislation  confined  to  "officers"  of  the  Navy. 
(15  Op.  Atty.  Gen.,  635;  see  also  Weller  v. 
U.  S.,  41  Ct.  Cls.,  324;  and  see  note  to  sec. 
1512,  R.  S.) 

The  expression  "officers  or  enlisted  men," 
in  a  statute  relating  to  longevity,  is  not  to  be 
construed  distributively  as  requiring  that  a 
person  should  be  an  enlisted  man  or  an  officer 
nominateil  and  appointed  by  the  President, 
or  by  the  head  of  a  department,  but  was  meant 
to  include  all  men  in  service,  either  by  enlist- 
ment or  regular  appointment.  (U.  S.  i'.  Hen- 
dee,  124  U.  S.,  309.) 

Section  1410,  Revised  Statutes,  which  defines 
who  are  petty  officers,  most  clearly  classes 
clerks  as  officers  not  holding  commissions  or 
warrants,  and  not  entitled  to  them,  but  still 
officers  of  the  Navy.  Excepting  clerks  from 
those  "officers"  who  would  otherwise  be  petty 
officers,  leaves  them  classed  among  the  officers 
previously  described.  (Hendee  v.  U.  S.,  22 
Ct.  Cls.,  134;  affirmed  124  U.  S.,  309.  See 
note  to  sec.  1386,  R.  S.,  concerning  present 
status  of  paymasters'  clerks.) 

Section  1410,  Revised  Statutes,  classes  pay- 
master's clerks  in  the  Navy  among  '  'all  officers 
not  holding  commissions  or  warrants,  or  who 
are  not  entitled  to  them,"  by  excepting  them, 
with  others,  from  such  officers  as  are  to  be 
deemed  petty  officers.  (Mouat  v.  U.  S.,  22  Ct. 
Cls.,  293,  297;  reversed,  U.  S.  v.  Mouat,  124 
U.  S.,  303.) 

The  confused  condition  of  our  statute  law 
relating  to  the  officers,  warrant  officers,  petty 
officers,  and  seamen  of  the  Navy  may  be  best 
illustrated  by  the  fact  that  a  paymaster's  clerk 
was  held  to  be  an  officer  and  was  held  not  to  be 
an  officer  by  the  same  court,  on  the  same  day, 
and  through  the  same  judge;  these  decisions, 
of  course,  meant  that  a  paymaster's  clerk  was 
and  was  not  an  officer  within  the  intent  of 
certain  statutes,  the  one  decision  relating  to 
mileage,  the  other  to  longevity  pay.  (Brown 
V.  U.  S.,  32  Ct.  Cls.,  379,  383,  citing  U.  S.  v. 
Mouat,  124  U.  S.,  303,  and  U.  S.  v.  Hendee, 
124  U.  S.,  309.) 

A  clerk  to  a  pay  officer,  appointed  by  au- 
thority of  section  1386,  Revised  Statutes,  was 
not  one  of  the  petty  officers  who,  under  section 
1410,  Revised  Statutes,  are  entitled  to  obedi- 
ence in  the  execution  of  their  offices  from 
persons  of  inferior  ratings.  (Johnson  v.  Sayre, 
158  U.  S..  109.) 

For  other  cases  see  note  to  section  1457, 
Re\'ised  Statutes,  under  "General  legislation 
not  applicable  to  retired  officers,"  and  "Retired 
officers  may  be  included  in  general  legislation." 

Mates  are  petty  officers. — See  note  to 
section  1408,  Revised  Statutes. 

Temporary  officers. — There  is  a  class  recog- 
nized in  the  Navy  who  are  neither  commis- 
sioned nor  warrant  officers,  who  perform  the 
duties  of  the  station  in  which  they  are  tempo- 
rarily placed.    They  are  generally,  though  not 


626 


The  2^avy. 


PL  2.  REVISED  STATUTES. 


Sec.  1411. 


nocessarily,  styled  acting,  as  acting  boatswain, 
acting  gunner,  etc.,  and  have  an  appointment 
with  that  title.  Temporary  appointments  are 
also  recognized  by  section  1410,  Revised  Stat- 
utes. The  appointment  referred  to  in  this  sec- 
tion is  confined  to  "officers  not  holding  com- 
missions or  warrants,  or  who  are  not  entitled  to 
them."  The  officer  receives  no  commission 
or  warrant.  He  is  simply  appointed  to  the 
duties  of  a  commissioned  or  warrant  officer. 
(28  Op.  Atty.  Gen.,  32.5.) 

Officers  holding  temporary  appointments  in 
the  Navy  are  not  either  commissioned  or  war- 
rant officers,  as  is  recognized  by  section  1410, 
Revised  Statutes.  Legislation,  therefore,  as  to 
the  manner  in  which  such  officers  are  to  be 
cashiered,  etc.,  does  not  apply  in  the  present 
case  (where  party  was  appointed  "an  acting 
master  in  the  Navy  on  temporary  service," 
and  was  dismissed  from  the  service  by  the 
Secretary  of  the  Navy).  The  assignment  of  a 
reason  in  the  letter  of  dismissal  was-surplusage 
and  perhaps  might  well  have  been  omitted. 
(15  Op.  Atty.  Gen.,  560.) 

Mates  are  not  "temporarily  appointed  to  the 
duties  of  a  commissioned  or  warrant  officer" 
within  the  exception  to  section  1410,  Revised 
Statutes.  AVhile  the  words  "acting  master's 
mates,"  sometimes  employed  prior  to  the  Re- 
vised Statutes,  might  indicate,  by  the  use  of 
the  word  "acting,"  a  person  temporarily  ap- 
pointed to  the  duties  of  a  master's  mate,  officers 
who  are  recognized  by  law,  and  whose  pay  is 
fi.xed  by  a  permanent  statute,  can  not  be  said 
to  be  temporarily  appointed.     (U.  S.  v.  Fuller, 


160  U.  S.,  593;  for  other  decisions  concerning 
status  of  mates  see  note  to  sec.  1408,  R.  S.) 

Acting  assistant  dental  surgeons  in  the  regular 
Dental  Corps  of  the  Navy,  appointed  with  a 
view  to  permanent  as  distinguished  from  tem- 
porary service,  and  having  the  same  rights  in 
respect  to  rank,  pay,  and  retirement  as  other 
officers  in  the  Regular  Navy,  are  not  temporary 
officers,  but  are  officers  of  '  'permanent  tenure  " 
within  the  meaning  of  the  act  of  March  4,  1913 
(37  Stat.,  903,  since  repealed).  Strictly  speak- 
ing, the  term  "permanent  tenure"  is  a  misno- 
mer in  any  case  where  applied  to  officers  of  the 
Navy,  as  all  such  officers  are  subject  to  removal 
in  various  ways.  The  expression  was  used  by 
Congress  as  applying  to  officers  whose  tenure 
of  office  is  for  1  if e  unless  sooner  terminated  in 
some  authorized  manner  generally  applicable 
to  officers  of  the  Regular  Navy.  (File  13707- 
38:9,  Sept.  2,  1914.) 

Secretary  to  the  Admiral  of  the  Navy. — - 
The  necessary  implication  of  this  section  is 
that  secretaries  are  officers  not  holding  commis- 
sions or  warrants  and  not  entitled  to  them.  If 
secretaries  do  not  hold  commissions  and  are 
not  entitled  to  them,  it  follows  that  they  are 
not  appointed  by  the  President,  because  ap- 
pointments by  the  President  are  always  evi- 
denced by  a  commission.  Accordingly  the 
appointment  of  the  secretary  allowed  the 
Admiral  of  the  Navy,  by  section  1367,  Revised 
Statutes,  does  not  belong  to  the  President,  with 
the  advice  and  consent  of  the  Senate,  but 
devolves  upon  the  Admiral  as  one  personal  to 
himself.     (19  Op.  Atty.  Gen.,  589.) 


Sec.  1411.  [Acting  assistant  surgeons.]  The  Secretary  of  the  Navy  may 
appoint,  for  temporary  service,  such  acting  assistant  surgeons  as  the  exigencies 
of  the  service  may  require,  who  shall  receive  the  compensation  of  assistant 
surgeons.— (3  Mar.,  1865,  c.  124,  s.  6,  v.  13,  p.  539.  15  July,  1870,  c.  295, 
s.  13,  V.  16,  p.  334.) 


Amendment  to  this  section  was  made  by  act  of 
February  15,  1879,  section  2  (20  Stat.,  295), 
which  provided  "That  from  and  after  the 
passage  of  this  act  the  Secretary  of  the 
Navy  shall  not  appoint  acting  assistant 
surgeons  for  temporary  service,  as  author- 
ized   by    section    fourteen    hundred    and 
eleven,  Re\-ised  Statutes,  except  in  case 
of  war." 
By  act  of  May  4,  1898  (30  Stat.,  380),  it  was  pro- 
vided that  "The  President  is  hereby  au- 
thorized to  appoint  for  temporary  service 
twenty-five  acting  assistant  surgeons,  who 
shall    have   the   relative   rank    and   com- 
pensation   of    assistant    surgeons."      The 
words    "the    relative    rank    of"    as    used 
in  sections  of  the  Revised  Statutes  in  de- 
fining the  -rank  of  officers  were  amended 
to  read  "the  rank  of"  by  the  Navy  per- 
sonnel act,  March  3, 1899,  section  7  (30  Stat., 
1006). 
See  sections  1381  and  1410,  Re^-ised  Statutes, 
concerning   acting   appointments  in  gen- 
eral. 
Appointments    by    the    President    and 
Secretary  of  the  Navy. — See  note  to  Con- 
stitution, Article  II,  section  2,  clause  2,  under 
"II.  Constitutional  power  of  appointment." 


It  is  universally  true  that  when  Congress,  in 
pursuance  of  its  authority  under  the  provision 
of  the  Constitution  (Art.  II,  sec.  2,  clause  2), 
sees  fit  to  give  the  sole  power  of  appointment  to 
the  President,  it  does  so  by  language  appro- 
priate to  that  end,  such  as  the  unqualified 
phrase,  "may  appoint."  Under  such  lan- 
guage the  President  is  vested  with  power  of 
appointing  alone.  (23  Op.  Atty.  Gen.,  136; 
see  alfco  22  Op.  Atty.  Gen.,  82.) 

For  form  of  commission  which  has  been  issued 
by  the  President  to  officers  appointed  acting 
assistant  surgeons  in  the  Navy  under  the  act  of 
May  4,  1898,  see  Nelson  v.  U.  S.,  41  Ct.  Cls.,  157. 
[In  practice,  commissions  are  no  longer  issued  to 
acting  assistant  surgeons.] 

Acting  assistant  surgeons  are  "oflicers" 
on  the  active  list  of  the  Navy. — The  term 
"officer  or  enlisted  man  "  in  act  of  May  13,  1908 
(35  Stat.,  128,  since  repealed),  proi-iding  for 
allowance  of  death  gratuity,  includes  all  per- 
eons  in  the  service  and  applies  to  acting  assist- 
ant surgeons.     (File  26543-10,  Sept.  11,  1908.) 

An  acting  assistant  surgeon  m  the  Navy, 
appointed  under  the  act  of  May  4,  1898,  is  an 
officer  on  the  active  list  of  the  Navy  within  the 
meaning  of  the  death  gratuity  law  of  May  13, 
1908  (since  repealed).     (15  Comp.  Dec,  176.) 


527 


Sec.  1411. 


Ft.  2.  REVISED  STATUTES. 


The  Navy. 


Acting  assistant  surgeons  are  not 
officei's  of  the  Regular  Navy. — Congress  by 
their  legishitidii  lia\e  n-coirnizcd  the  distinction 
between  officers  in  the  permanent  and  tem- 
porary Borvice  in  the  Navy.  Thus  by  section 
1370,  Re\i8ed  Statutes,  as  amended  by  the 
naval  approi)riation  act  of  May  4,  1898  (30  Stat., 
369,  380),  in  respect  to  assistant  surji;eons,  it 
was  provided  that  "no  person  shall  be  ap- 
pointed assistant  surgeon  until  he  has  been 
examined  and  approved  by  a  board  of  naval 
surgeons  designated  by  the  Secretary  of  the 
Navy,  nor  who  is  under  twenty-one  or  over 
thirty  yearsof  age,  inclusive."  That  provision, 
as  its  language  imports,  was  to  guard  against 
the  appointment  of  incompet<;nt  surgeons  in 
the  Navy,  and  evidently  applies  to  appoint- 
ments to  be  made  in  the  regular  or  permanent 
service  as  contradistinguished  from  appoint- 
ments in  the  temporary  8er\-ice,  for  in  the  next 
succeeding  clause  or  paragraph  in  the  same 
act  is  the  provision  authoriziilg  the  President 
"to  appoint  for  temporary  service  twenty-five 
acting  assistant  surgeons,  who  shall  have  the 
relative  rank  and  compensation  of  assistant 
surgeons"  (without  requiring  an  examination, 
or  fixing  any  limitations  as  to  age).  (Tavlor  v. 
U.  S.,  38Ct._Cls.,  155,  161.) 

Acting  assistant  surgeons  are  not  "medical 
officers  of  the  Navy,"  ^vithin  the  meaning  of 
the  act  of  July  28,  1892  (27  Stat.,  321),  but  are 
officers  in  the  temporary  service  of  the  Navy, 
and  are  not  eligible  for  duty  as  members  of 
marine  examining  boards.  (File  15229-12;  see 
also  file  947  M,  June  13,  1910.) 

Acting  assistant  surgeons  are  officers  merely 
in  the  temporary  service,  and  not  officers  of  the 
Regular  Naw.     (9  Comp.  Dec,  827.) 

The  act  of  February  15.  1879  (20  Stat.,  294), 
provides  for  a  board  to  make  an  examination  of 
"the  eighteen  acting  and  three  acting  passed 
assistant  surgeons  now  in  the  8er\'ice,  should 
they  desire  to  present  themselves,"  and  au- 
thorized the  President,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  appoint  those 
found  qualified  as  assistant  surgeons  "in  the 
Regular  Navy  of  the  United  States,"  and  to 
muster^  out  those  found  not  qualified,  except 
that,  "in  the  event  of  physical  disqualifications 
which  occurred  in  the  line  of  duty,  such  officer 
may,  upon  the  recommendation  of  a  retiring 
board,  be  placed  upon  the  retired  list."  (File 
27231-51:5,  July  10,  1915.) 

Again,  the  act  of  June  7,  1900  (31  Stat.,  684, 
697),  provided  that  "assistant  surgeons  under 
the  age  of  fifty  years,  appointed  for  temporary 
service  during  the  War  with  Spain,  having 
creditable  records,  who  are  now  in  the  Navy, 
may  be  given  permanent  commissions." 
(Taylor  v.  U.  S.,  38  Ct.  Cls.,  155,  161.) 

[Section  4693,  Revised  Statutes,  providing 
the  classes  of  persons  entitled  to  pensions  speci- 
fied "any  officer  "  of  the  Army,  Navy,  or  Marine 
Corps,  disabled  "while  in  the  service  of  the 
United  States  and  in  the  line  of  duty,"  and  in 
addition  specified  "any  acting  assistant  or  con- 
tract surgeon,"  disabled  "while  actually  per- 
forming the  duties  of  assistant  surgeon  or  acting 
assistant  surgeon  wnth  any  military  force  in  the 
field,  or  in  transitu,  or  in  hospital."  The  fact 
that  a  pension  was  granted  to  a  contract  surgeon 
by  the  express  terms  of  the  statute  was  held 


not  to  authorize  a  court  to  hold  that  it  was 
because  he  was  an  officer  in  the  Army.  See 
Byrnes  v.  U.  S.,  26  Ct.  Cls.,  302.] 

Not  eligible  for  retirement. — Thiit  an  act- 
ing assistant  surgeon  can  not  legally  be  retired 
for  physical  disability  is  not  open  to  doubt,  as 
acting  assistant  surgeons  have  alwa>-s  been 
appointed  and  discharged  from  the  Navy  eu- 
tirelv  in  the  discretion  of  the  Executive.  (File 
27231-51 :5,  July  10, 1915;  see  also  file  27231-106, 
Oct.  22,  1917.) 

In  no  case  has  any  acting  assistant  surgeon 
been  placed  on  the  retired  list,  with  tlu-ee  ex- 
ceptions which  were  expressly  authorized  by 
the  law  enacted  '"to  abolish  the  Volunteer 
Navy  of  the  United  States,"  viz,  the  act  of 
February  15,  1879,  section  1  (20  Stat.,  294). 
(File  27231-51:5,  July  10,  1915.) 

Except  in  the  cases  specifically  provided  for 
by  the  act  of  1879,  the  appointments  of  these 
temporary  officers  have  invariably  been  re- 
voked for  physical  disability;  their  retirement 
being  not  only  unauthorized  by  existing  law, 
but  contrary  to  the  best  interesls  of  the  Navy. 
Thus,  one  purpose  of  the  law  is  to  authorize 
temporary  appointments,  when  required,  of 
doctors  who  are  able  to  perform  the  duties  for 
which  appointed,  regardless  of  whether  they 
are  qualified  for  the  regular  Medical  Corps. 
For  example,  in  the  present  case  the  officer 
was  appointed  an  acting  assistant  surgeon  after 
he  had  resigned  from  the  regular  Medical  Corps 
following  his  failure  to  meet  the  professional 
requirements  for  that  corps.  Similarly,  other 
acting  assistant  siugeons  are  appointed  who  are 
above  the  age  limit  for  entering  the  regular 
Medical  Corps  and  who  could  not,  therefore, 
possibly  serve  the  required  period  before  reach- 
ing the  retirement  age.  Others  may  be  ap- 
pointed for  temporary  service  who  could  not 
qualify  physically  for  the  regular  corps,  the 
requirements  for  wliich  are  naturally  more 
severe  because  of  the  privilege  of  retirement  to 
which  its  members  are  entitled.  If  acting 
assistant  surgeons  were  legally  entitled  to  re- 
tirement, the  Navy  Department  could  not.  in 
the  interest  of  the  Government,  recommend  the 
appointment  of  any  applicant  unless  he  pos- 
sessed all  of  the  requirements  necessary  for  the 
regular  service,  and  thus  one  object  of  the  law 
would  be  defeated.  (File  27231-51:5,  July 
10,  1915.) 

When  applicants  accept  appointments  as 
acting  assistant  surgeons,  they  are  chargeable 
with  knowledge  of  the  law  as  above  stated,  and 
of  the  fact  that  such  appointments  are  revoked 
when  for  any  reason  the  appointees  are  either 
unable  to  serve,  or  are  no  longer  needed.  (File 
27231-51:5,  July  10,  1915.) 

Concerning  the  retirement  of  acting  assistant 
surgeons  for  physical  disabiUty,  "  the  law  on  the 
subject  has  been  re\-iewed  at  length,  and  the 
conclusion  reached,  after  consideration  of  all 
matters  bearing  on  the  subject,  is  that  an  act- 
ing assistant  surgeon  of  the  Navy,  appointed 
for  temporary  service  under  the  provisions  of 
the  act  of  May  4,  1898,  is  not  eligible  for  retire- 
ment on  account  of  phvsical  disability. " 
(File  27231-51:4,  June  30,  1915.) 

The  Secretary  of  the  Navy  declines  to  re- 
quest an  opinion  of  the  Attorney  General  as  to 
tlie  retirement  of  acting  assistant  sturgeons,  as 


528 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1411. 


the  question  has  been  decided  by  the  Navy 
Department,  and  the  Attorney  General  does  not 
possess  the  power  to  review  the  decisions  of 
otiier  executive  departments.  Even  when  re- 
quested by  the  head  of  a  department,  the  At- 
torney General  has  consistently  declined  to 
render  opinions  when  it  appears  that  the  officer 
requesting  the  opinion  has  already  decided  the 
case  and  requests  the  Attorney  General's 
opinion  merely  at  the  instance  of  claimants  or 
interested  parties  who  seek  to  have  the  existing 
decision  reversed.  (File  27231-51:6,  July  15, 
1915.) 

[Note.— The  act  of  May  22, 1917  (40  Stat.,  84), 
authorizing  temporary  appointments  in  the 
Navy,  to  continue  in  force  "not  later  than  six 
months  after  the  termination  of  the  present 
war,"  provided  (sec.  9)  that  "any  person  origi- 
nally appointed  temporarily,  as  provided  in 
this  act,  shall  not  be  entitled  to  any  rights  of 
retirement,  except  for  physical  disability  in- 
curred in  line  of  duty."  See  also  act  June  4, 
1920,  section  2  (41  Stat.,  834).] 

Revocation  of  appointment  for  physical 
disabiUty. — In  view  of  the  fact  that  acting  as- 
sistant surgeons  can  not,  under  the  law,  be 
retired  for  physical  disability,  the  most  liberal 
an-angement  which  is  possible  in  their  case  is 
to  direct  that  the  revocation  of  appointment  be 
made  to  take  effect  three  months  after  date; 
this  is,  in  itself,  in  the  nature  of  a  gratuity, 
which  is  not  expressly  authorized  by  law,  but 
which,  under  special  circumstances,  the  Sec- 
retary of  the  Navy  has  decided  may  legally  be 
regarded  as  within  the  range  of  executive 
discretion  to  grant.  (File  27231-51:7,  July  14, 
1915;  see  also  27231-51:5,  July  10,  1915.) 

Implied  resignation  of  acting  appoint- 
ment by  acceptance  of  appointment  in 
Regular  Navy. — The  appointment  of  an  acting 
assistant  surgeon  (appointed  under  the  act  of 
May  4,  1898)  to  the  regular  service  as  an 
assistant  surgeon,  while  still  holding  a  position 
in  the  temporary  force,  operated  as  a  discharge 
from  his  former  position,  and  an  appointment 
to  the  latter;  and  although  the  two  services  are 
for  some  purposes  to  be  regarded  as  continuous 
the  one  with  the  other,  yet  the  position  of 
assistant  surgeon  held  by  him  in  the  temporary 
force  is  a  different  and  distinct  position  from 
that  of  assistant  surgeon  in  the  permanent  force 
to  which  he  was  afterwards  appointed.  (Tavlor 
V.  U.  S.,  38  Ct.  Cls.,  155,  159,  quoting  decision 
of  Comptroller   of  the  Treasury.) 

Imphed  resignation  of  position  in  Regu- 
lar Navy  by  acceptance  of  acting  appoint- 
ment.— An  assistant  surgeon  failed  in  his  pro- 
fessional examination  for  promotion,  was  sus- 
pended from  promotion  in  accordance  with 
section  1505,  Kevised  Statutes,  and  during  the 
period  of  such  suspension  resigned  from  the 
Navy.  Thereafter  he  was  appointed  an  acting 
assistant  surgeon  in  the  Navy,  which  position 
he  later  resigned.  It  was  then  contended  that 
he  was  insane  at  the  time  of  his  resignation  as 
an  assistant  surgeon,  and  that  said  resignation 
was  accordingly  invalid  and  should  be  revoked. 
Held,  that  even  though  he  was  insane  at  the 
time  of  his  resignation  as  an  assistant  surgeon  the 
finding  of  the  board  of  medical  examiners 
established  his  sanity  at  the  time  he  was  ap- 


pointed an  acting  assistant  surgeon,  and  his 
acceptance  of  such  appointment  was  tanta- 
mount to  the  resignation  of  his  former  office  of 
assistant  surgeon  inthe  Navy,  if  he  still  held 
such  office  at  the  time  of  his  acting  appoint- 
ment. However,  the  evidence  clearly  estab- 
lishes this  officer's  sanity,  inasmuch  as  he  was 
found  physically  and  mentally  qualified  by  a 
board  of  examiners  at  the  time  of  his  appoint- 
ment as  an  assistant  surgeon,  at  the  time  of  his 
examination  for  promotion,  and  again  at  the 
time  of  his  appointment  as  an  acting  assistant 
surgeon.  _  In  the  absence  of  evidence  definitely 
establishing  as  a  fact  that  he  was  of  unsound 
mind  when  he  resigned  as  assistant  surgeon,  his 
sanity  under  the  circumstances  stated  must  be 
conclusively  presumed;  his  resignation  of  that 
office  was  accordingly  valid,  and  he  can  be  re- 
instated in  the  Navy  only  by  a  new  exercise  of 
the  appointing  power.  (File  27231-51:1,  Feb. 
24,  1913.) 

Rank  and  pay  of  acting  assistant  sur- 
geons.—By  act  of  May  4,  1898  (30  Stat.,  369, 
380),  the  President  was  authorized  "to  appoint 
for  temporary  8er\T.ce  twenty-five  acting  assist- 
ant surgeons,  who  shall  have  the  relative  rank 
and  compensation  of  assistant  surgeons." 
When  this  act  was  passed,  the  pay  of  officers  in 
the  naval  service  was  generally  regulated  by 
section  1556,  Revised  Statutes.  By  section  13 
of  the  Navy  personnel  act  of  March  3,  1899  (30 
Stat.,  1004,  1007),  it  was  provided  that  com- 
missioned officers  of  the  line  of  the  Navy  and 
of  the  Medical  and  Pay  Corps  "shall  receive 
the  same  pay  and  allowances,  except  forage, 
as  are  or  may  be  provided  by  or  in  pursuance  of 
law,  for  the  officers  of  corresponding  rank  in 
the  Army."  The  effect  of  this  act  was  to  in- 
crease the  pay  of  naval  officers  generally,  and 
therefore  to  enhance  the  pay  of  assistant  sur- 
geons.    (Plummer  v.  U.  S.,  224  U.  S.,  137.) 

The  act  of  June  7,  1900  (31  Stat.,  697),  raised 
the  rank  of  assistant  surgeons  in  the  Navy  by 
providing  that  "assistant  surgeons  shall  rank 
with  assistant  surgeons  in  the  Army."  The 
effect  of  tliis  act  was  to  give  assistant  surgeons 
in  the  Navy  a  higher  rank — that  is,  to  raise 
them  from  the  rank  of  ensign,  under  section 
1474,  Revised  Statutes,  to  that  of  lieutenant 
(junior  grade),  corresponding  with  the  rank 
held  by  assistant  surgeons  in  the  Army. 
(Plummer  v.  U.  S.,  224  U.  S.,  137.) 

The  act  of  1898  provided  for  a  standard  by 
which  to  determine  the  rank  and  pay  of  acting 
assistant  surgeons,  and  that  standard  is  the 
rank  and  pay  in  force  at  the  time  when  the 
services  of  the  acting  assistant  surgeons  are 
rendered ;  accordingly  h  Id  that  under  section 
13  of  the  Navy  personnel  act  of  March  3,  1899 
(30  Stat.,  1007),  and  the  acts  of  June  7,  1900  (31 
Stat.,  697),  March  2,  1907  (34  Stat.,  1167),  and 
May  13,  1908  (35  Stat.,  127),  the  pay  of  acting 
assistant  surgeons  was  enhanced  and  assimi- 
lated to  that  of  assistant  surgeons,  and  did  not 
remain  fixed  as  regulated  by  section  1556, 
Revised  Statutes.  (Plummer  v.  U.  S.,  224 
U.  S.,  137.) 

It  may  not  be  doubted  that  the  relation 
which  the  act  of  1898  established  between  the 
rank  and  pay  of  acting  assistant  surgeons  and 
assistant  surgeons  in  reason  must  rest  upon  the 


629 


Sec.  1412. 


Pt.e.  REVISED  STATUTES. 


The  Navy. 


euV>ptantial  identity  of  the  services  to  be  ren- 
dered hv  the  incumbents  of  both  offices. 
(Plummer  r.  U.  S.,  224  U.  S.,  137.) 

The  pay  of  actinfj  assistant  surgeon  in  the 
Navy  was  temporarily  increased  by  specific 
provision  in  the  act  of  May  18,  1920,  section  1 
(41  Stat.,  602).  See  note  to  section  1556, 
ReN-ised  Statutes. 

The  act  of  May  4,  1898  (30  Stat.,  380), 
is  permanent  legislation  in  so  far  as  it 
authorizes  the  appointment  of  acting  as- 
sistant surgeons  for  temporary  sei-vice. 
Although  passed  at  a  time  when  the  United 
Slates  was  at  war  with  Spain,  it  is  not  limited  in 


its  application  to  the  emergencies  then  existing 
or  presently  arising.  If  Congress  had  intended 
that  the  authority  conferred  upon  the  President 
to  appoint  acting  assistant  surgeons  for  t(»mpo- 
rary  service  should  be  a  temporary  grant  of 
power,  such  limitations  would  have  been  ex- 
pressly inserted.  Accordingly,  hiid  that  the 
power  conferred  upon  the  President  by  said  act 
was  not  exhausted  by  its  exercise  during  the 
emergencies  then  existing  and  which  led  to  its 
passage,  but  still  exists  and  may  be  exercised 
whenever  necessity  therefor  arises.  (9  Comp, 
Dec,  827.) 


Sec.  1412.  [Volunteer  officers;  transfer  to  Regular  Navy,  etc.]  Officers 
who  have  been,  or  may  be,  transferred  from  the  volunteer  service  to  the  Regular 
Navy  shall  be  credited  v^^th  the  sea-service  perfonned  by  them  as  volunteer 
officers,  and  shall  receive  all  the  benefits  of  such  duty  in  the  same  manner 
as  if  they  had  been,  during  such  service,  in  the  Regular  Navy. — (2  Mar.,  1867, 
c.  174,  s.  3,  V.  14,  p.  516.) 

quirement  of  three  years'  sea  service  prior 
to  promotion  of  acting  chaplains  is   con- 
tained in  act  of  June  30,  1914 (38 Stat.,  403). 
Service  as  midshipman  at  the  Naval  Academy 
or  as  cadet  at  the  ^Military  Academy  not  to 
be  credited  to  officers  of  the  Navy  who  were 
appointed  to  said  academies  after  March  4, 
1913.     (Act  Mar.  4,  1913,  37  Stat.,  891.) 
Staff  officers  appointed  since  March  4,  1913,  not 
to  be  credited  with  constructive  ser-vice  for 
purposes    of    precedence.     (Act    Mar.    4, 
1913,  37  Stat.,  892.) 
Staff  officers  and  others  appointed  from  civil 
life  since  March  4,  1913,  not  to  be  credited 
with  constructiA-e  service  for  purposes  of 
pay.     (Act  Mar.  4,  1913,  37  Stat.,  891.) 
Transfer  of  officers  fi-om  the  temporary  Navy 
and  Naval  Reserve  Force  to  the  Regular 
NaA'y  was  authorized  bv  act  of  June  4, 
1920  (41  Stat.,  834-836.)." 
Vessels  in  merchant  marine  may  be  taken  pos- 
session of  by  President  for  naval  purposes. 
(Act  Sept.  7,  1916,  39  Stat.,  731.) 
Volimteer    Naval    Resers-e   established.     (Act 
Aug.  29,  1916,  39  Stat.,  592,  as  amended 
by  act  of  July  1,  1918,  40  Stat.,  710.) 
Volunteer  Patrol  Squadrons:    See  act  of  August 
29,  1916  (39  Stat..  600), 
The  effect  of  the  la-w  embodied  in  this 
section  is  to  give  the  officers  concerned  the 
full  benefit  of  sea  duty  performed  by  them 
while  in  the  volunteer  ser\-ice.     Such  duty  may 
go  to  complete  the  period  of  sea  service  re- 
quired in  certain  grades  of  the  Regular  Navy 
prior  to  promotion,  or  may  be  properly  taken 
into  account  in   the  matter  of  assignment  to 
duty.      It  does  not   confer  upon   the   officers 
referred  to  the  right  to  have  their  commissions 
or  their  rank  antedated.     (14  Op.  Atty.  Gen., 
198;  see  also  16  Op.  Atty.  Gen.,  45,  17  Op. 
Atty.  Gen.,  189,  and  17  Op.  Atty.  Gen.,  399.) 
By  the  regulations  of  the  Navy  in  force  when 
this  law  was  adopted  a  certain  period  of  sea 
service,  formerly  two  years  and  later  one  year, 
was  required  of  officers  in  the  four  grades  "from 
ensign  to  Ueutenant  commander,  inclusive,  be- 
fore, as  a  general  rule,  they  were  nominated 


"An  act  to  abolish  the  Volunteer  Navy  of  the 
United  States,"  approved  February  15, 
1879  (20  Stat.,  294),  made  provision  for 
transferring  to  the  Regular  Navy  line  offi- 
cers and  medical  officers  in  the  Volunteer 
NaA'y,  and  for  mustering  out  volunteer  offi- 
cers not  quaUfied  to  discharge  the  duties  of 
their  position. 

Any  Hne  officer  of  volunteers  may  be  advanced 
in  grade  if  given  a  vote  of  thanks  by  Con- 
gress for  heroism.     (Sec.  1508,  R.  S.) 

Honorably  discharged  volunteer  officers  and 
sailors  are  eligible  for  admission  to  the  Na- 
tional Home  for  Disabled  Volunteer  Sol- 
diers.    (Act  May  26,  1900,  31  Stat.,  217.) 

Other  provisions  for  crediting  officers  of  the 
Navy  with  service  in  the  Volunteer  Army 
or  Na\'y  are  contained  in  the  act  of  March  3, 
1883  (22  Stat.,  473). 

Pay  of  officers  in  a  volunteer  naval  service, 
when  authorized  by  law,  is  provided  for  by 
section  1559,  Revised  Statutes. 

Previous  service  to  be  credited  to  officers  ap- 
pointed to  any  corps  of  the  Navy  or  to  the 
Marine  Corps,  after  serving  in  a  different 
corps  of  the  Navy  or  of  the  Marine  Corps. 
(Act  June  10,  1896,  29  Stat.,  361.) 

Previous  service  to  be  credited  to  certain  sur- 
geons in  the  Navy  appointed  for  meritorious 
services  during  yellow  fever  epidemics. 
(Act  June  10,  1896,  29  Stat.,  361.) 

"Sea  service"  defined:  See  section  1571,  Re- 
visQd  Statutes.  By  act  of  August  29,  1916 
(39  Stat.,  579),  it  was  proWded  that  "on 
and  after  June  thirtieth,  nineteen  hundred 
and  twenty,  no  captiiiri,  commander,  or 
lieutenant  commander  shall  be  promoted 
unless  he  has  had  not  less  than  two  years' 
actual  sea  ser\-ice  on  seagoing  ships  in  the 
grade  in  which  ser\-ing.  *  *  *  Pro- 
vided, That  the  qualification  of  sea  serxdce 
shall  not  apply  to  ofiicers  restricted  to  the 
performance  of  engineering  duty  only." 
This  requirement  as  to  sea  service  was 
modified  in  its  application  to  exceptional 
cases  during  war  or  national  emergency  bv 
act  of  July  1,  1918  (40  Stat.,  718).     A  re- 


530 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1413. 


for  promotion  to  the  next  higher  grades.  (See 
Regulations  of  1865,  p.  46,  par.  257;  Regulations 
of  1870,  p.  130,  par.  299.)  Besides,  officers  of 
the  Navy  generally  are  credited  with  their  sea 
service  with  a  view  to  its  being  taken  into  con- 
sideration in  theii"  future  assignment  to  duty. 
The  design  of  the  provision  referred  to,  then, 
was  to  give  the  transferred  officers  the  full  bene- 


fit of  their  former  sea  service,  in  so  far  as  it 
might  go  to  complete  the  period  of  such  service 
required  in  their  respective  grades  previous 
to  nomination  for  promotion,  and  in  so  far  as 
it  ought  properly  to  be  taken  into  account  in 
the  matter  of  assignment  to  duty.  Beyond 
these  advantages  the  provision  would  seem  to 
confer  nothing.     (14  Op.  Atty.  Gen.,  358.) 


Sec.  1413.  [Civil  Engineer  Corps;  and  Storekeepers.]  The  President,  by 
and  with  the  advice  and  consent  of  the  Senate,  may  appoint  a  civil  engineer 
and  a  naval  store-keeper  at  each  of  the  navy-yards  where  such  officers  may  be 
necessary.— (2  Mar.,  1867,  c.  172,  s.  1,  v.  14,  p.  490.  17  June,  1868,  c.  61,  s.  1, 
V.  15,  p.  69.) 


Amendment  to  this  section  was  made  by  act  of 
March  3,  1899,  section  7  (30  Stat.,  1006), 
which  provided  that  "no  appointments 
shall  be  made  of  civil  engineers  in  the  Navy 
on  the  active  list  under  section  fourteen 
hundred  and  thirteen  of  the  Revised 
Statutes  in  excess  of  the  present  number, 
twenty-one." 

Further  amendment  was  made  by  act  of  July  1 , 

1902  (32  Stat.,  671),  which  provided  that 
"the  appointment  of  six  additional  civil 
engineers  is  hereby  authorized,  three  to  be 
appointed  during  the  present  calendar 
year,  and  the  other  three  in  the  calendar 
year  of  nineteen  hundred  and  three." 

"  One  additional  civil  engineer,  in  all  twenty- 
eight,  and  twelve  assistant  ci^•il  engineers, 
of  whom  six  shall  haA  e  the  rank  of  lieu- 
tenant (junior  grade)  and  six  the  rank  of 
ensign,"  were  authorized  by  act  of  March  3, 

1903  (32  Stat.,  1197).  By  act  of  March  4, 
1917  (39  Stat.,  1184),  it  was  provided  that 
"officers  of  the  Corps  of  Civil  Engineers 
hereafter  appointed  shall,  from  the  date 
of  their  original  appointment,  take  rank 
and  precedence  with  Lieutenants  (junior 
grade)." 

One  civil  engineer  (Leonard  Martin  Cox),  was 
authorized  by  name  to  be  restored  to  the 
Corps  of  Ci^•il  Engineers,  to  be  "carried  as 
an  additional  to  the  number  of  the  grade 
to  wliich  he  may  be  appointed  under  this 
act,  or  at  any  time  thereafter."  (Act 
Mar.  4,  1907,  34  Stat.,  1407.)  The  total 
number  of  civil  engineers  in  the  Navy  was 
thereby  increased,  temporarily,  to  29.  By 
act  of  August  29, 1916  (39  Stat.,  576),  it  was 
provided  that  "the  total  number  of  com- 
missioned officers  of  the  active  list  of  the 
following  staff  corps,  exclusive  of  com- 
missioned warrant  officers,  shall  be  based 
on  percentages  of  the  total  number  of 
commissioned  officers  of  the  active  list  of 
the  line  of  the  Navy,  as  follows:  *  *  * 
Corps  of  Civil  Engineers,  two  per  cen- 
tum *  *  *.  The  total  number  of  com- 
missioned officers  of  the  active  list  of  the 
following  mentioned  staff  corps  at  any  one 
time,  exclusive  of  commissioned  warrant 
officers,  shall  be  distributed  in  the  various 
grades  of  the  respective  corps  as  follows: 
*.  *  *  Corpsof  Civil  Engineers:  One-half 
civil  engineers  with  the  rank  of  rear  ad- 
miral to  five  and  one-half  civil  engineers 
with  the  rank  of  captain,  to  fourteen  civil 


engineers  with  the  rank  of  commander,  to 
eighty  civil  engineers  and  assistant  civil 
engineers  with  the  rank  below  commander. 
*  *  *  When  there  is  an  odd  number  of 
officers  in  the  grade  or  rank  of  rear  admii-al 
in  the  line  or  in  each  corps,  the  lower  di- 
vision thereof  shall  include  the  excess  in 
number,  except  where  there  is  but  one. 
Whenever  a  final  fraction  occurs  in  comput- 
ing the  authorized  numlier  of  any  corps, 
grade,  or  rank  in  the  naval  service,  the 
nearest  whole  number  shall  be  regarded  as 
the  authorized  number:  Provided,  That  at 
least  one  officer  shall  be  allowed  in  each 
grade  or  rank.  For  the  purpose  of  deter- 
mining the  authorized  number  of  officers  in 
any  grade  or  rank  of  the  line  or  of  the  staff 
corps,  there  shall  be  excluded  from  consid- 
eration those  officers  carried  by  law  as  addi- 
tional numbers,  including  staff  officers  here- 
tofore permanently  commissioned  with  the 
rank  of  rear  admiral,  and  nothing  contained 
herein  shall  be  held  to  reduce  below  that 
heretofore  authorized  by  law  the  number  of 
officers  in  any  grade  or  rank  in  the  staff 
corps."  The  temporary  appointment  of 
additional  officers  during  the  period  of  the 
existing  war  was  authorized  by  the  act  of 
May  22,  1917,  section  4  (40  Stat.,  85),  as 
amended  by  act  of  July  1,  1918  (40  Stat., 
715),  which  also  authorized  temporary  ap- 
pointments and  promotions  to  fill  dming 
the  period  of  the  war  the  deficiency  exist- 
ing prior  to  May  22,  1917,  in  the  total 
number  of  commissioned  officers  author- 
ized by  the  act  of  August  29,  1916.  By  act 
of  June  4,  1920  (41  Stat.,  834),  it  was  pro- 
vided that  ''the  number  of  staff  officers  on 
active  duty  of  whatever  kind  shall  be  in 
the  same  proportions  as  authorized  by 
existing  law." 
"  Promotions  in  the  corps  of  civil  engineers  shall 
be  after  such  examination  as  the  Seci'etary 
of  the  Navy  may  prescribe."  (Act  Mar. 
3,  1903,  32  Stat.,  1197.)  Examinations 
were  discontinued  for  promotion  of  staff 
officers  in  grade  by  act  of  May  22,  1917, 
section  20  (40  Stat.,  89),  which  act  and 
section  also  reenacted  a  provision  in  the 
act  of  March  4,  1917  (39  Stat.,  1182),  re- 
quiring examinations  of  staff  officers  for 
advancement  in  rank.  Advancement  in 
rank  of  staff  officers  up  to  and  including  the 
rank  of  lieutenant  commander  is  regulated 
by  act  August  29,  1916  (39  Stat.,   576). 


531 


Sec.  1413. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Advancement  to  the  ranks  of  commander, 
captam,   and    rear  admiral   in   the   Staff 
Corps  of  the  Navy  are  to  be  made  by  selec- 
tion upon  recommendation  of  a  l)oard  of 
oHicers  of  the  corps  concerned.     (Act  July 
1,  ]!)18,  10  Stat.,  718.) 
Rank  of  civil  engineers  is  fixed  by  section  1478, 
Revised   Statutes,  as  amended   by  act  of 
August  29,  191G  (39  Stat.,  577). 
Rank  of  assistant  ci\il  engineers.  See  acts  of 
March  3,  1903,  and  March  4,  1917,  noted 
above. 
Storekeepers;  civilians  may  be  appointed  for 

foreign  stations.     (Sec.  1414,  R.  S.) 
Storekeepers;    bonds    required    of     civilians. 

(Sec.  1415,  R.  S.) 
Storekeepers;  officers  required  to  act  as.     (Sec. 

1438,  R.  S.) 
Storekeepers;  bonds  required  of  officers  acting 

as.     (Sec.  1439,  R.  S.) 
Storekeepers;  mileage  was  allowed  for  travel 
by   section    15(J6,  Revised    Statutes,    now 
superseded. 
Storekeepers;  pay  of  officers  acting  as.     (Sec. 

1567,  R.  S.) 
Storekeepers;    pay    of    civilians.     (Sec.    1568, 

R.  S.) 
Storekeeper  at  Naval  Academy  to  be  detailed 
from  Pay  [now  Supplv]  Corps.  (Sec.  1527, 
R.  S.) 
Historical  note. — Prior  to  the  act  of  March 
2,  1867  (14  Stat.,  490),  civil  engineers  were 
appointed  by  the  Secretary  of  the  Navy; 
since  then,  under  authority  of  that  act  (now 
embodied  in  sec.  1413,  R.  S.),  they  have 
been  commissioned  by  the  President  by 
and  with  the  advice  and  consent  of  the 
Senate;  they  were  appropriated  for  as  part  of 
the  civil  establishment  at  the  several  navy 
yards  and  stations  under  the  control  of  the  Bu- 
reau of  Yards  and  Docks  until  1870,  when  their 
pay  was  regulated  by  section  3  of  the  act  of  July 
15  of  that  year  (now  embodied  in  section  1556, 
Revised  Statutes),  fixing  the  annual  pay  of 
officers  of  the  Navy  on  the  active  list,  and  ap- 
propriations for  their  pay  have  been  made  since 
1870  under  the  head  of  "Pay  of  the  Navy." 
(17  Op.  Atty.  Gen.,  126.) 

Prior  to  1867  civil  engineers  in  the  Navy  were 
appointed  by  the  Secretary  of  the  Navy,  and 
their  duties  were  shore  duties — the  superin- 
tendence and  charge  of  buildings  in  navy  yards. 
(Brown  v.  U.  S.,  32  Ct.  Cls.,  379.) 

The  authority  of  the  Pre.'^ident  under  the  act 
of  March  3,  1871  (now  embodied  in  sec.  1478, 
R.  S.),  "to  determine  and  fix  the  relative  rank 
of  civil  engineers,"  was  not  exercised  until 
February  24,  1881.  (17  Op.  Atty.  Gen., 
126.) 

In  16  Op.  Atty.  Gen.,  203,  it  was  held  that 
civil  engineers,  in  the  absence  of  action  by  the 
President  conferring  rank  upon  them  as  au- 
thorized by  law,  were  civil  officers,  and  not 
naval  officers,  and  might  be  removed  by  nomi- 
nation and  confirmation  of  a  successor  in  any 
case;  and  that  no  notice  of  dismissal  need  be 
sent  the  officer  so  removed.  Also  held  that  sec- 
tion 1413,  Revised  Statutes,  "necessarily  im- 
pUes  that  such  appointments  are  only  to  be 
made  where  such  officers  are  found  necessary, 
and  inferentially  that  their  services  may  be 


dispensed  with  when  unnecessary;  and  indi- 
cates that  the  appointment  is  to  some  extent  a 
local  one,  and  that  the  ajjpointee  can  not  be  a 
naval  officer  in  the  full  sense  of  the  term." 

In  17  Op.  Atty.  Gen.,  126,  it  was  held  that 
civil  engineers  are  not  merely  "civil  officers 
connected  with  the  Navy,"  but  are  officers  in 
the  Navy,  plainly  included  among  those  con- 
templated by  the  amended  section  1480,  Re- 
vised Statutes,  as  belonging  to  the  "staff  corps  of 
the  Navy,"  and  possessing,  under  a  then  recent 
order  issued  pursuant  to  section  1478,  Revised 
Statutes,  defined  relative  rank  with  other  offi- 
cers in  the  Navy;  and  accordingly,  that  they 
may  be  retired  from  active  service  and  placed 
on  the  retired  list  under  the  statutory  provi- 
sions (sees.  1443  et  seq.)  regulating  the  retire- 
ment of  officers  in  the  Navy.  (It  had  previ- 
ously been  held,  in  15  Op.  Atty.  Gen.,  165,  that 
civil  engineers  appointed  under  sec.  1413,  R. 
S.,  are  officers  of  the  Navv  within  the  meaning 
of  arts.  36  and  37  of  sec.  1624,  R.  S.;  and  in  15 
Op.  Atty.  Gen.,  597,  that  they  were  persons  be- 
longing to  the  Navy  and  as  such  subject  to  the 
jurisdiction  of  naval  courts- martial.) 

In  Brown  v.  U.  S.  (32  Ct.  Cls.,  379),  it  was 
held  that  the  acts  of  March  2,  1867  (sec.  1413, 
R.  S.),  and  July  15,  1870  (16  Stat.,  321,  330,  sec. 
3),  and  March  3,  1871  (16  Stat.,  526,  536),  did 
not  change  the  legal  status  of  ciWl  engineers  in 
the  Navy,  but  were  merely  a  legislative  recog- 
nition of  civil  engineers  as  officials  who  were 
then  and  always  had  been  in  the  naval  and  not 
in  the  civil  service;  that  both  the  Navy  De- 
partment and"  the  accounting  officers  of  the 
Treasury  had  uniformly  held  that  civil  engi- 
neers in  the  Navy  were  in  the  naval  service; 
and  accordingly  that  civil  engineers  in  the 
Navy  prior  to  the  act  of  March  2, 1867  (sec.  1413, 
R.  S.),  were  officers  and  were  in  the  naval  serv- 
ice mthin  the  intent  of  the  act  of  March  3,  1883 
(22  Stat.,  473),  relating  to  longevity  pay. 

Civil  Engineer  Corps,  increases  for 
benefit  of  designated  individuals  not 
favored.- — "The  Department  is  not  satisfied  as 
to  the  necessity  for  increase  in  the  corj^s  of  civil 
engineers,  and  even  if  an  increase  should  be 
deemed  advisable,  believes  that  it  should  be 
made  in  the  regular  way,  by  an  authorized 
increase  in  the  corps,  and  not  by  a  bill  designed 
to  benefit  a  particular  individual  to  be  ap- 
pointed as  an  additional  number."  (File 
532-43,  Mar.  31,  1908.) 

"If  the  corps  is  to  be  increased  it  would  seem 
that  the  increase  should  be  made  first  and  the 
candidate  qualify  afterwards,  rather  than  to  pass 
a  special  law  creating  a  vacancy  for  any  person, 
however  worthy."  (File  532^2,  Feb.  29, 
1908.) 

As  to  unconstitutionality  of  such  legis- 
lation, see  note  to  Constitution,  Article  II 
section  2,  clause  2,  "Congress  cannot  designate 
appointee,"  under  "III.  Power  of  Congress." 

Superintendent  of  State,  War,  and  Navy 
Building.— The  act  of  March  3,  1883  (22  Stat. 
553),  does  not  contemplate  that  an  officer  of 
the  CorjDB  of  Civil  Engineers  of  the  Navy  shall 
be  eligible  for  appointment  as  superintendent 
of  the  State,  War,  and  Navy  Building.  (25 
Op,  Attv.  Gen.,  508.  See  also  notes  to  sees. 
1390  and  1462,  R.  S.) 


532 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1416. 


Sec.  1414.  [Civilian  storekeepers  on  foreign  stations.]  The  Secretary  of 
the  Navy  may  appoint  citizens  who  are  not  officers  of  the  Navy  to  be  store- 
keepers on  foreign  stations,  when  suitable  officers  of  the  Navy  can  not  be 
ordered  on  such  service,  or  when,  in  his  opinion,  the  pubHc  interest  will  be 
thereby  promoted. — (17  June,  1844,  c.  107,  s.  1,  v.  5,  p.  700.  3  Mar.,  1847,  c.  48, 
s.  3,  r.  9,  p.  72.) 


Except  as  pro\T.ded  in  this  section,  the  Secre- 
tary of  the  Na^^  shall  order  a  suitable 
commissioned  or  warrant  officer  to  take 
charge  of  the  naval  stores  at  foreign  sta- 
tions where  a  storekeeper  may  be  neces- 
sary.    (Sec.  1438,  R.  S.) 
Pay  of  civilian  storekeepers  on  foreign  stations 
is  fixed  by  section  1568,  Revised  Statutes. 
Supply    officer    to    be     general    store- 
keeper.— At  each  navy  yard  and  station  there 
shall  be  an  officer  of  the  pay  [supply]  corps 
detailed    as    the    general   storekeeper.     (Art. 
R-4622,  Navy  Regs.,  1913.) 

Appointment  raxist  be  made  by  the 
Secretary  of  the  Navy. — The  appointment 
of  a  ci\T.lian  naval  storekeeper  by  the  com- 
mander of  a  squadron  is  not  authorized  by  law, 
and  is  therefore  void,  and  furnishes  no  ground 
upon  wMch  the  salary  for  that  office  can  be 
claimed.     (Larkin  v.  tJ.  S.,  5  Ct.  Cls.,  535. )_ 

It  is  clear  that  under  the  law  embodied  in 
this  section  a  citizen  could  only  be  appointed 
to  the  office  of  naval  storekeeper  by  the  Secre- 
tary of  the  Navy  when  a  suitable  naval  officer 
could  not  be  ordered  on  such  service  or  when 
in  the  Secretary's  opinion  the  public  service 
would  be  promoted  by  the  appointment  of  a 
citizen.  The  commander  of  a  squadron  cer- 
tainly had  no  authority  tomake  such  an  ap- 
pointment. Possibly  he  might  under  a  neces- 
sity have  ordered  a  commissioned  or  warrant 
officer  of  the  Navy  to  discharge  the  duties  of 


the  office  temporarily  [see  section  1438,  Revised 
Statutes],  but  it  cannot  be  contended  that  he 
had  any  authority  of  law  to  order  a  citizen  or 
to  clothe  him  witn  the  functions  of  the  office. 
(Larking.  U.  S.,  5  Ct.  Cls.,  535.) 

Sale  of  stores  to  officers  and  enlisted, 
men. — The  Secretary  of  the  Navy  is  not 
authorized,  in  the  absence  of  a  provision  of 
law  therefor,  to  purchase  for  sale  to  officers  and 
enlisted  men  of  the  Navy  articles  not  included 
in  the  regular  naval  stores.  (6  Comp.  Dec.: 
321.) 

Sections  1414  and  1438  of  the  Revised 
Statutes  refer  only  to  such  naval  stores  and 
provisions  as  are  authorized  to  be  issued 
to  the  Navy,  and  do  not  include  anything  more 
than  the  components  of  the  Navy  ration  as 
prescribed  by  law;  and  the  appropriation  for 
subsistence  of  the  Navy  is  not  available  for 
the  purchase  of  any  article  of  subsistence 
except  such  as  the  law  authorizes  to  be  pur- 
chased and  issued  to  the  enlisted  men  of  the 
Navy,  and  cannot  be  used  for  the  purchase  of 
articles  of  subsistence  which  may  be  authorized 
to  be  purchased  and  sold  in  the  commissary 
stores  of  the  Army  under  section  144,  Revised 
Statutes,  and  the  act  of  July  5,  1884  (23  Stat., 
108).     (6  Comp.  Dec,  321.) 

See  laws  noted  under  section  418,  Revised 
Statutes,  with  reference  to  sale  of  naval  stores 
to  persons  in  the  Anny,  Navy,  and  Marine 
Corps,  and  to  civilian  employees. 


Sec.  1415.  [Civilian  storekeepers  to  give  bond.]  Every  person  who  is  ap- 
pointed store-keeper  under  the  provisions  of  the  preceding  section  shall  be 
required  to  give  a  bond,  in  such  amount  as  may  be  fixed  by  the  Secretary  of  the 
Navy,  for  the  faithful  performance  of  his  duty. — (17  June,  1844,  c.  107,  s.  1, 
V.  5,  p.  700;  3  IVIar.,  1847,  c.  48,  s.  3,  v.  9,  p.  172.) 

On  general  subject  of  bonds,  see  note  to  section  1383,  Revised  Statutes. 

Sec.  1416.  [Civil  offices  at  yards  may  be  discontinued.     Superseded.] 


This  section  provided  as  follows: 

'"Sec.  1416.  The  Secretary  of  the  Navy  is 
authorized,  when  in  his  opinion  the  public 
interest  will  permit  it,  to  discontinue  the  office 
or  employment  of  any  measurer  and  inspector 
of  timber,  clerk  of  the  yard,  clerk  of  the  com- 
mandant, clerk  of  the  storekeeper,  clerk  of  the 
naval  constructor,  and  the  keeper  of  the  maga- 
zine employed  at  any  navy  yard ,  and  to  require 
the  duties  of  the  keeper  of  the  magazine  to  be 
performed  by  gunners."  10  Aug.,  1846,  c.  176, 
8.  1,  V.  9,  pp.  98,  99. 

It  was  superseded  by  a  clause  in  the  naval 
appropriation  act  of  March  3,  1909  (35  Stat., 
754),  noted  below  under  "Clerks  to  comman- 
dants of  yards  and  stations." 

Clerks  to  commandants  of  yards  and 
stations. — By  section  1556,  Revised  Statutes, 


provision  was  made  for  the  pay  of  clerks  to  com- 
mandants of  yards  and  stations,  and  pa>Tnent 
in  accordance  therewith  was  specifically  au- 
thorized in  the  annual  naval  appropriation  act 
under  "Pay  of  the  Navy,"  including  the  act  of 
May  13,  1908  (35  Stat.,  127).  By  naval  appro- 
priation act  of  March  3, 1909  (35  Stat.,  754),  the 
Secretary  of  the  Navy  was  authorized  to  fix  the 
pay  of  the  "clerical,  drafting,  inspection,  and 
messenger  force  at  navy  yards  and  naval  sta- 
tions" on  a  per  annum  or  per  diem  basis  as  he 
may  elect;  it  was  further  provided  therein  '  'that 
the  number  may  be  increased  or  decreased  at 
his  option,  and  shall  be  distributed  at  the 
various  navy  yards  and  naval  stations  by  the 
Secretary  of  the  Navy  to  meet  the  needs  of  the 
naval  ser\-ice."  The  same  act  repealed  "so 
much  of  section  fifteen  hundred  and  fifty-six  of 


533 


Sec.  1417. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


the  Revised  Statutes  as  relates  to  pay  of  clerks  Service  as  commandant's  clerk  is  not  military 

to  commandants  of  navy  yards  and  naval  eta-  service,  and  the  Navy  Department  does  not 

tions,"    and    omitted    the   specific    pro\d8ion  approve  of  proposed  legislation  crediting  such 

theretofore  made  under  "Pay  of  the  Navy"  for  service  to  oriicers  of  the  Na\-y  or  Marine  Corps 

such  dorks.  for    longevity     purposes.     (File    26255-274:2, 

The  term  "officer  or  enlisted  man'' as  used  in  Jan.  21, 1913.)     But  see  contra.  25  Comp.  Dec, 

the  death  gratuity  law  of  May  13,  1908  (35  Stat . ,  745. 
128),  does  not  apply  to  commandant's  clerks. 
(File54(iO-31.) 

Sec.  1417.  [Enlisted  men,  number  of;  advancement  to  warrant  officers.]  The 
number  of  persons  who  may  at  one  time  be  enhsted  into  the  Navy  of  the 
United  States,  including  seamen,  ordinary  seamen,  landsmen,  mechanics,  fire- 
men, and  coal-heavers,  and  including  seven  hundred  and  fifty  apprentices  and 
boys,  hereby  authorized  to  be  enlisted  annually,  shall  not  exceed  eight  thousand 
two  hundred  and  fifty:  Provided,  That  in  the  appointment  of  warrant-officers 
in  the  naval  service  of  the  United  States,  preference  shall  be  given  to  men  who 
have  been  honorabl}^  discharged  upon  the  expiration  of  an  enlistment  as  an 
apprentice  or  boy,  to  serve  during  minority,  and  re-enlisted  ^vithin  tliree  months 
after  such  discharge,  to  serve  during  a  term  of  three  or  more  years :  Provided 
further,  That  nothing  in  this  act  shall  be  held  to  abrogate  the  provisions  of 
section  fourteen  hundred  and  seven  of  the  Revised  Statutes  of  the  United  States, 


? 


This  section  was  expressly  amended  and  re- 
enacted  to  read  as  above  by  act  of  May  12, 
1879  (21  Stat.,  3).  As  it  appeared  in  the 
second  edition  of  the  Re^d8ed  Statutes,  it 
read  as  follows: 

"Sec.  1417.  [The  nuviber  of  persons  who  may 
at  one  time  be  enlisted  into  the  Navy  of  the  United 
States,  including  seamen,  ordinary  seamen, 
landsmen,  mechanics,  firemen,  coal  heavers,  ap- 
prentices, and  boys,  shall  not  exceed  eight  thousand 
fivehundred.^  [Thenumber  of  persons  whomay  at 
one  time  be  enlisted  into  the  Navy  of  the  United 
States,  including  seamen,  ordinary  seamen, 
landsmen,  mechanics,  firemen,  coal  heavers, 
apprentices,  and  boys,  shall  not  exceed  seven 
thousand  and  fivehundred.]"— (7  June,  1864,  c. 
Ill,  v.  13,  p.  120;  17  June,  1868,  c.  61,  s.  2,  v.  15, 

72;  30  June,  1876,  c.  159,  v.  19,  p.  66;  U.  S.  v. 
hompson,  2  Spr.,  103.) 

The  number  of  enlisted  men  has  from 
time  to  tim.e  been  increased  as  follows: 

"The  number  of  persons  who  may  at  one 
time  be  enlisted  into  the  Navy  of  the  United 
States,  including  seamen,  ordinary  seamen, 
landsmen,  mechanics,  firemen,  and  coal  heav- 
ers, and  including  one  thousand  five  hundred 
apprentices  and  boys,  hereby  authorized  to  be 
enlisted  annually,  shall  not  exceed  nine  thou- 
sand."    (Act  Mar.  3,  1893,  27  Stat.,  730.) 

"The  Secretary  of  the  Navy  is  hereby  author- 
ized to  enlist  as  many  additional  seamen  as  in 
his  discretion  he  may  deem  necessarj-,  not  to 
exceed  one  thousand."  (Act  Mar.  2,  1895,  28 
Stat.,  826.) 

"The  Secretary  of  the  Na\'y  is  hereby  au- 
thorized to  enlist  at  any  time  after  the  passage 
of  this  act  as  many  additional  men  as  in  his  dis- 
cretion he  may  deem  necessanv-,  not  to  exceed 
one  thousand."  (Act  June  10,  1896,  29  Stat., 
361.) 

Subsequent  acts  fixed  the  number  of  euUsted 
men  in  the  Navy  as  follows: 


11,000  Petty  officers,  seamen,  landsmen,  and 
boys,  including  men  in  the  engineers' 
force  and  for  the  Coast  Survey  Service 
and  Fish  Commission;  and 
750  Boys  under  training  at  training  stations 
and  on  board  training  ships.  (Act 
Mar.  3,  1897,  29  Stat.,  648.) 

12,  750  Petty  officers,  seamen,  landsmen,  and 
boys,  including  men  in  the  engineers' 
force  and  for  the  Coast  Survey  Ser\dce 
and  Fish  Commission; 
1, 000  Boys  under  training  at  training  stations 
and  on  board  training  ships;  and 
Men  detailed  for  duty  ^\'ith  Naval 
Militia.  (Act  May  4,  1898,  30  Stat., 
369.  Pro\'ision  was  made  by  the 
same  act  for  a  temporary  increase  of 
the  enlisted  force  during  the  existing 
War  ^\ith.  Spain.) 

17,  500  Petty  officers,  seamen,  landsmen,  and 
apprentice  boys,  including  men  in 
the  engineers'  force  and  for  the  Coast 
Survey  Service  and  Fish  Commission; 
2, 500  Apprentices  under  training  at  training 
stations  and  on  board  training  ships; 
and 
Men  detailed  for  duty  with  Naval  Mili- 
tia. (Act  Mar.  3,  1899,  30  Stat., 
1025.) 

22,  500  Petty  officers,  seamen,  landsmen,  and 
apprentice  boys,  including  men  in 
the  engineers'  force,  and  for  the  Fish 
Commission ; 
2,  500  Apprentices  under  training  at  training 
stations  and  on  board  training  ships; 
and 
Men  detailed  for  duty  with  Naval  Mi- 
litia. (Act  Mar.  3,  1901,  31  Stat., 
1108). 


534 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1417. 


25, 500  Petty  officers,  seamen,  landsmen,  and 
apprentice  boys,  including  men  in 
the  engineers'  force,  and  for  the  Fish 
Commission ; 
2,  500  Apprentices  under  training  at  trairiing 
stations  and  on  board  training  ships; 
and 
Men  detailed  for  duty  with  Naval 
MiUtia.  (Act  Julv  1,  1902,  32  Stat., 
662.) 

28,500  Petty  officers,  seamen,  landsmen,  and 
apprentices,  including  men  in  the 
engineers'  force,  and  men  detailed 
for  duty  with  Naval  Militia,  and  for 
the  Fisn  Commission;  and 
2, 500  Apprentices  under  training^  at  training 
stations  and  on  board  training  ships. 
(Act  Mar.  3,  1903,  32  Stat.,  1177.) 

31,  500  Petty  officers,  seamen,  landsmen,  and 
apprentices,  including  men  in  the 
engineers'  force,  and  men  detailed  for 
duty  with  Naval  Militia,  and  for  the 
Fish  Commission ;  and 
2,500  Apprentices  under  training  at  training 
stations  and  on  board  training  ships. 
(Act  Apr.  27,  1904,  33  Stat.,  324.) 

34,  500  Petty  officers,  seamen,  landsmen,  and 
apprentices,  including  men  in  the 
engineers'  force,  and  men  detailed 
for  duty  with  Naval  Militia,  and  for 
the  Fish  Commission ; 
2,  500  Apprentices  under  training  at  trairiing 
stations  and  on  board  training  ships; 
and 
Men  undergoing  imprisonment  with 
sentence  of  dishonorable  discharge 
from  the  Ber\'ice  at  expiration  of  such 
confinement.  (Act  Mar.  3,  1905,  33 
Stat.,  1092.) 

36, 000  Petty  officers,  seamen,  landsmen,  and 
apprentice  seamen,  including  men  in 
the  engineers'  force,  and  men  detailed 
for  duty  with  Naval  Militia,  and  for 
the  Fish  Commission ; 
2, 500  Apprentice  seamen  under  training  at 
training  stations  and  on  board  training 
ships;  and 
Men  undergoing  imprisonment  with 
sentence  of  dishonorable  discharge 
from  the  service  at  expiration  of  such 
confinement.  (Act  Mar,  2,  1907,  34 
Stat.,  1176.) 

42, 000  Petty  officers,  seamen,  landsmen,  and 
apprentice  seamen,  including  men  in 
the  engineers'  force,  and  men  detailed 
for  duty  wnth  Naval  Militia,  and  for 
the  Fish  Commission; 
2, 500  Apprentice  seamen  under  training  at 
training  stations  and  on  board  train- 
ing ships;  and 
Men  undergoing  imprisonment  with 
sentence  of  dishonorable  discharge 
from  the  service  at  expiration  of  such 
confinement.  (Act  May  13,  1908,  35 
Stat.,  127.) 

44,000  Petty  officers,  seamen,  landsmen,  and 
apprentice  seamen,  including  men  in 


the  engineers'  force  and  men  detailed 
for  duty  with  Naval  Militia,  and  for 
the  Fish  Commission ; 
3, 500  Apprentice  seamen  under  training  at 
training  stations  and  on  board  train- 
ing ships;  and 
Men  undergoing  imprisonment  with 
sentence  of  dishonorable  discharge 
from  the  service  at  expiration  of  such 
confinement.  (Act  June  24,  1910,  36 
Stat.,  606.) 

48,000  Petty  officers,  seamen,  landsmen,  and 
apprentice  seamen,  including  men  in 
the  engineers'  force  and  men  detailed 
for  duty  with  Naval  Militia,  and  for 
the  Fish  Commission; 
3,  500  Apprentice  seamen  under  training  at 
training  stations  and  on  board  train- 
ing ships;  and 
Men  undergoing  imprisonment  ^\'ith 
sentence  of  dishonorable  discharge 
from  the  service  at  expiration  of  such 
confinement.  (Act  Aug.  22,  1912,  37 
Stat.,  328.) 

48,000  Petty  officers,  seamen,  landsmen,  and 
apprentice  seamen,  including  men  in 
the  engineers'  force  and  men  detailed 
for  duty  with  the  Fish  Commission; 
3,500  Apprentice  seamen  under  training  at 
training  stations  and  on  board  train- 
ing ships ; 
Men  detailed  for  duty  with  the  Naval 

Militia;  and 
Men  undergoing  imprisonment  with 
sentence  of  dishonorable  discharge 
from  the  service  at  the  expiration  of 
such  confinement.  (Act  March  3, 
1915,  38  Stat.,  938.) 

68,  700  Petty  officers,  seamen,  landsmen,  and 
apprentice  seamen,  including  men 
in  the  engineers'  force  and  men  de- 
tailed for  duty  with  the  Fish  Com- 
mission ; 
6,000  Apprentice  seamen  under  training  at 
training  stations  and  on  board  train- 
ing ships; 

Men  detailed  for  duty  with  the  Naval 
Militia; 

Men    sentenced    by    court-martial    to 
discharge ; 

Men  furloughed  without  pay,  subject  to 
recall  in  time  of  emergency; 

Men  in  the  Hospital  Corps;  and 
350  Enlisted  men  of  the  Naval  Flying  Corps. 
(Act  Aug.  29,  1916,  39  Stat.,  572,  575, 
582.) 

87,000  "The  President  is  hereafter  authorized 
whenever  in  his  judgment  a  sufficient 
national  emergency  exists,  to  increase 
the  authorized  enlisted  strength  of  the 
Navy  to  eighty-seven  thousand  men." 
(Act  Aug.  29,  1916,  39  Stat.,  575.) 

150,000  "The  authorized  enlisted  strength  of 
the  active  list  of  the  Navy  is  hereby 
temporarily  increased  from  eighty- 
seven  thousand  to  one  hundred  and 
fifty  thousand,  including  four  thou- 


535 


Sec.  1417. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


saiul  iidditioiKil  apprentice  peamcn." 
(ActMayL'2,  1917, sec.  1,40 Stat.,  84.; 

131,485  "The  authorized  enlisted  strength  of 
the  active  list  of  the  Navy  is  hereby 
increased  f rom  oifjhty-seven  thousand 
to  one  hundred  and  tliirty-one  thou- 
sand four  hundred  and  eightv-five." 
(Act  July  1,  1918,  40  Stat.,  714.) 

181,485  "The  authorized  enlisted  strength  of 
the  active  list  of  the  Navy  is  hereby 
temporarily  increased  from  one  hun- 
dred and  thirty-one  thousand  four 
hundred  and  eighty-five  to  one  hun- 
dred and  eighty-one  thousand  four 
hundred  and  eighty-five;  the  author- 
ized number  of  apprentice  seamen 
is  hereby  temporarily  increased  from 
six  thousand  to  twenty-four  thousand ; 
and  the  authorized  number  of  enlist- 
ed men  of  the  Flying  Corps  is  hereby 
temporarily  increased  from  three 
hundred  and  fifty  to  ten  thousand. 

*  *  *  Provided  further,  That  the 
number  of  enlisted  men  for  instruc- 
tion in  trade  schools  shall  not  at  any 
time  exceed  fourteen  thousand, 
which  number  is  hereby  temporarily 
authorized:  Provided  further,  That 
the  President  is  authorized,  at  any 
time  during  the  period  of  the  present 
war,  when  in  his  judgment  it  be- 
comes necessary,  temporarily  to  in- 
crease the  authorized  enlisted 
strength  of  the  Navy,  as  provided 
for  herein,  by  the  addition  of  fifty 
thousand  men."  (Act  July  1,  1918, 
40  Stat.,  714,  expressly  amending 
and  reenacting  section  1  of  the  act 
approved  May  22,  1917,  40  Stat., 
84.) 

241,000  "The  total  authorized  enlisted  strength 
of  the  active  list  of  the  Navy  is  hereby 
temporarily  increased  from  131,485 
during  the  period  from  July  1, 1919,  to 
September  30,  1919,  to  241,000  men, 
and  from  October  1, 1919,  to  December 
31,  1919,  to  191,000  men,  and  from 
January  1,  1920,  to  June  30,  1920,  to 
170,000  men  and  the  President  is 
hereby  authorized,  whenever  in  his 
judgment  a  sufficient  national  emer- 
gency exists,  to  increase  the  author- 
ized enlisted  strength  of  the  Navy  to 
191,000  men  *  *  *,  The  foregoing 
total  authorized  enlisted  strength  shall 
include  the  hospital  corps,  apprentice 
seamen,  those  sentenced  by  court- 
martial  to  discharge,  enlisted  men  of 
the  Flying  Corps,  those  under  instruc- 
tion in  trade  schools  and  members  of 
the  Naval  Reserve  Force  so  serving. 

*  *  *'■  ,  Provided  further,  That  noth- 
ing herein  shall  be  construed  as 
affecting  the  permanent  *  *  *  en- 
listed strength  of  the  Regular  Navy 
as  authorized  bv  existing  law."  (Act 
July  11,  1919,  41  Stat.,  138. )_ 

"That  the  Secretary  of  the  Navy  is  hereby 
authorized  to  employ  on  active  duty,  ^vith  their 
own  consent,  members  of  the  Naval  Reserve 
Force  in  enlisted  ratings,  the  number  so  em- 


ployed not  to  exceed  during  any  fiscal  year  the 
average  of  twenty  thousand  men:  Provided, 
That  the  number  of  naval  reservists,  so  em- 
ployed on  active  duty,  together  with  the 
total  number  of  enlisted  men  in  the  Regular 
Navy,  shall  not  exceed  the  total  enlisted 
strength  of  the  Navy  as  authorized  by  laM'." 
(Act  June  4,  1920,  41  Stat.,  834.) 

Apprentice  seamen  under  training. — By 
act  of  April  24,  1896,  section  2(29  Stat.,  97),  it 
was  provided  that "  all  a])prenticos  of  the  Navy% 
whether  at  a  training  station  or  on  board  an 
apprentice  training  ship,  shall  be  additional  to 
the  number  of  enlisted  persons  allowed  by  law 
for  the  Navy."  The  term  "apprentices"  was 
changed  to  "apprentice  seamen"  by  act  of 
June  29,  1906  (34  Stat.,  553). _ 

The  expression  "any  enlisted  man  in  the 
Navy,"  as  used  in  the  naval  appropriation  act 
of  August  22,  1912  (37  Stat.,  330),  is  broad 
enough  to  include  a  minor  enlisted  as  appren- 
tice seaman,  although  the  same  act  in  another 
connection  specifically  mentions  "any  enlisted 
man  or  apprentice."  (20  Comp.  Dec,  429;  see 
also  note  to  sec.  1418,  R.  S.) 

Men  under  sentence  of  dishonorable  dis- 
charge.—The  act  of  March  3,  1905  (33  Stat., 
1092),  provided  that  "the  number  of  enlisted 
men  shall  be  exclusive  of  those  undergoing  im- 
prisonment with  sentence  of  dishonorable  dis- 
charge from  the  service  at  expiration  of  such 
confinement."  This  provision  was  rej^eated  in 
the  subsequent  naval  appropriation  acts,  each 
year,  unril  the  act  of  August  2.9,  1916  (39  Stat., 
575),  which  provided  that  "hereafter  the  num- 
ber of  enlisted  men  of  the  Navy  shall  be  exclu- 
sive of  those  sentenced  by  court-martial  to  dis- 
charge." The  latter  clause  is  permanent  legis- 
lation, and  modifies  that  contained  in  the  pre- 
vious acts  relating  to  the  same  subject.  (File 
28687-4,  Sept.  16,  1916.) 

Men  detailed,  for  duty  with  Naval  Mili- 
tia.— The  Naval  Militia  act  of  February  16, 
1914,  section  2  (38  Stat.,  283),  authorized  the 
Secreta,ry  of  the  Nav^y  to  detail  enhsted  men  for 
duty  with  the  Naval  MiUtia  as  "ship  keepers," 
and  provided  "that  such  enhsted  men  shall  be 
in  addition  to  the  number  now  or  hereafter 
allowed  by  law  for  the  regular  Naval  Establish- 
ment." Section  17  of  the  same  act  (38  Stat., 
288)  authorized  the  Secretary  of  the  Navy, 
upon  appUcation  of  the  governor  of  any  State 
or  Territory  or  the  commanding  general.  Dis- 
trict of  Columbia  Militia,  to  detail  enhsted  men 
of  the  Navy  to  report  to  the  officers  mentioned 
"for  duty  in  connection  with  the  Naval  Mil- 
itia," but  did  not  provide  that  men  so  detailed 
should  be  in  addition  to  the  number  allowed  by 
law  for  the  Navy.  The  naval  appropriation  act 
of  March  3, 1915(38  Stat.,  938),  authorized  48,000 
petty  officers,  etc.,  as  in  the  previous  year,  but 
omitted  therefrom  the  clause  "including 
*  *  *  men  detailed  for  duty  with  Naval 
Militia,"  which  appeared  in  the  prior  acts,  and 
instead  made  specific  provision  "for  the  pay 
of  enhsted  men  detailed  for  duty  with  the 
Naval  Militia,"  in  addition  to  the  48,000  other- 
wise authorized. 

Prior  to  the  act  of  March  3, 1915,  above  noted, 
it  was  held  that  "the  total  number  of  enhsted 
men  appropriated  for  by  the  current  naval  ap- 
propriation act  includes  'men  detailed  for  duty 


536 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1417. 


with  Naval  Militia, '  under  the  general  authority 
conferred  upon  the  Secretary  of  the  Navy  to 
detail  officers  and  enlisted  men  and  report  to  the 
governors  of  the  various  States,  etc.,  but  does 
not  include  men  attached  to  vessels  of  the  Navy 
loaned  to  the  Naval  Militia  under  section  2  of 
the  Naval  Militia  law,  who  act  as  ship  keepers, 
and,  under  the  proAisions  of  that  act  are  'in 
addition  to  the  number  now  or  hereafter  allowed 
by  law  for  the  regular  Naval  Establishment. '" 
Also,  that  "the  department  is  authorized  to 
enlist  the  full  number  of  men  appropriated  for, 
if  necessary,  in  addition  to  the  number  detailed 
as  ship  keepers  pursuant  to  section  2  of  the 
Naval  Militia  law;  and  that  the  enlistment  of 
such  additional  number  of  men  in  excess  of 
appropriations  is  not  prohibited  by  sections 
3G79  and  3732,  Re\'ised  Statutes,  as  amended." 
(File  3973-106,  Feb.  8,  1915.) 

By  act  of  July  1,.  1918  (40  Stat.,  708),  "all 
laws  heretofore  enacted  by  the  Congress  relat- 
ing to  the  Naval  Militia"  were  repealed.  By 
act  of  June  4,  1920  (41  Stat.,  817)  the  Naval 
Militia  was  revived  until  June  30,  1922. 

Men  detailed  for  duty  -with.  Coast  and 
Geodetic  Survey. — See  note  to  section  264, 
Re^dsed  Statutes. 

Men  detailed  to  nautical  schools  in  the 
Philippines  are  additional  to  the  authorized 
enlisted  strength.  (Act  June  30,  1906,  34 
Stat.,  817.) 

Enlisted  men  of  the  Hospital  Corps. — 
The  naval  appropriation  act  of  August  29,  1916 
^9  Stat.,  572),  provides  that  the  Hospital 
Corps  shall  consist  of  chief  phaiTnacists,  phar- 
macists, and  enlisted  men;  that  its  authorized 
strength  shall  equal  3J  per  centum  of  the 
authorized  enlisted  strength  of  the  Na\'y  and 
Marine  Corps;  and  that  it  shall  be  "  in  addition" 
to  such  authorized  enlisted  strength. 

Enlisted  men  of  the  Flying  Corps. — The 
naval  appropriation  act  of  August  29,  1916  (39 
Stat.,  582),  provides  that  "the  Naval  Flying 
Corps  shall  be  composed  of  150  officers  and  350 
enlisted  men,  and  that  the  said  number  of 
officers,  student  flyers,  and  enlisted  men  shall 
be  in  addition  to  the  total  number  of  officers 
and  enlisted  men  which  is  now  or  may  hereafter 
be  provided  by  law  for  the  other  branches  of 
the  naval  service."  (See  laws  noted  above  as 
to  temporary  increase  of  the  Flying  Corps.) 

EnHsted  men  furloughed  without  pay. — 
The  act  of  August  29,  1916  (39  Stat.,  580), 
authorized  the  Secretary  of  the  Navy  to  fxir- 
lough  enlisted  men,  without  pay,  for  the  un- 
expired portion  of  their  enlistment,  in  lieu  of 
discharge  by  purchase,  and  subject  to  recall  in 
time  of  emergency ;  enlisted  men  so  furloughed 
to  be  "in  addition  to  the  authorized  number  of 
enlisted  men  of  the  Na\'y." 

A  soldier  on  f  m-lough  is  a  soldier  of  the  United 
States  and  is  in  the  service,  but  not  on  duty. 
(Union  Pac.  R.  Co.  v.  U.  S.,  52  Ct.  Cls.,  226.) 

'WTien  an  enlisted  man  is  furloughed  without 
pay  for  the  unexpired  portion  of  his  enlistment, 
his  deposit,  if  any,  with  interest,  should  be  paid 
on  the  date  the  fuiiough  is  granted.  (File  7657- 
402:1,  Oct.  18, 1916,  constnungact  Feb.  9, 1889, 
sec.  1,  25  Stat.,  657,  providing  for  payment  of 
deposits  and  interest  on  discharge.) 

An  enUsted  man  furloughed  without  pay  is 
nevertheless  an  enlisted  man  in  the  Navy,  and 
as  such  is  entitled  to  treatment  in  Navy  "hospi- 


tals. (File  7657-411,  Nov.  18,  1916,  and  Feb. 
5,  1917.) 

The  Navy  Department  is  not  authorized  to 
defray  the  burial  expenses  of  an  enlisted  man  of 
the  Navy  who  died  while  fiu-loughed  under  the 
act  of  August  29,  1916  (23  Comp.  Dec.,  504. 
Although  the  Navy  Department  recognizes  as 
binding  the  decision  of  the  comptroDer  in  this 
case,  no  modification  is  made  in  the  previous 
holding  of  this  department  with  reference  to 
medical  treatment  of  men  on  furlough.  File 
7657-411:2,  Mar.  15, 1917). 

The  "authorized  enlisted  strength"  of 
the  Navy  as  used  in  the  nav^al  appropriation 
act  of  August  29,  1916  (39  Stat.,  575),  refers  to 
the  68,700  men  who  are  exclusive  of  all  such 
classes  of  enlisted  men  as  are  appropriated  for 
in  addition  to  the  authorized  enlisted  strength. 
The  6,000  apprentice  seamen  are  within  the 
latter  classification,  as  are  also  enlisted  men  of 
the  Hospital  Corps,  enlisted  men  sentenced  to 
discharge,  enlisted  men  detailed  to  the  Naval 
Militia,  and  enlisted  men  of  the  Filing  Corps. 
The  words  "authorized  enlisted  strength"  are 
sufficiently  broad  to  include  all  enlisted  men 
authorized  by  law,  but  it  is  evident  that  these 
words  are  iised  in  the  act  of  August  29,  1916,  in 
their  technical  signification  as  intended  to  refer 
merely  to  the  specific  numbers  of  68,700  men, 
and  87,000  men,  authorized  for  ordinary  times 
and  for  national  emergency,  respectively. 
(File  28687-4,  Sept.  16,  1916.) 

"The  plirase  'authorized  enlisted  strength,' 
as  applied  to  the  personnel  of  the  Navy,  shall 
mean  the  total  number  of  enlisted  men  of  the 
Navy  authorized  by  law,  exclusive  of  the 
Hospital  Corps,  apprentice  seamen,  those  sen- 
tenced by  court-martial  to  discharge,  those 
detailed  for  duty  with  Naval  Militia,  those 
furloughed  without  pay,  enlisted  men  of  the 
Flying  Corps,  and  those  under  instruction  in 
trade  schools. "  (Act  May  22, 1917.  40  Stat. ,  84, 
as  amended  by  act  July  1,  1918,  40  Stat.,  714.) 

The  words  "total  authorized  enlisted 
strength  of  the  active  list,"  as  used  in  the 
act  of  August  29,  1916  (39  Stat.,  576),  are  in- 
tended to  designate  all  classes  of  enlisted  men 
for  whom  appropriation  is  made;  that  is  to  say, 
they  include  the  68,700  enlisted  men  proper, 
and  also  apprentice  seamen,  enlisted  men  of 
the  Hospital  Coqjs,  enlisted  men  of  the  Flving 
Corps,  nav^al  prisoners  sentenced  to  discharge, 
and  enlisted  men  detailed  to  the  Naval  Militia. 
(File  28687-1,  Sept.  16,  1916.) 

Authorized  niunber  of  men  is  daily 
average. — The  naval  appropriation  act  of 
June  30,  1914  (38  Stat.,  403),  provided,  "That 
hereafter  the  number  of  enlisted  men  of  the 
Navy  and  Marine  Corps  provided  for  shall  be 
construed  to  mean  the  daily  av^erage  number 
of  enlisted  men  in  the  naval  service  during  the 
fiscal  year." 

Naval  reserve. — A  naval  reserve  of  enlisted 
men  was  established  by  act  of  March  3, 1915  (38 
Stat.,  940),  to  consist  of  men  enlisted  therem, 
or  transferred  thereto  from  the  Regular  Navy, 
and  it  was  provided  that  "members  of  the  naval 
reserve  may,  in  time  of  peace,  be  requiredto 
perform  not  less  than  one  month's  active  service 
on  board  a  vessel  of  the  Navy,  during  each  year 
of  service  in  the  naval  reserve,  and  such  active 
service  shall  not  exceed  two  months  in  any  one 
year";   and  that  "in  time  of  war  they  may  be 


537 


Sec.  1417. 


PL  2.  RE  VISED  STAT  UTES. 


The  Navy. 


required  to  perform  active  service  mth  the 
Navy  lhroii,c;nout  the  war,  not  to  exceed  the 
term  of  enlistment  in  the  case  of  those  enlisted 
in  the  naval  reserve.''  This  was  held  to  be 
superseded  by  act  of  August  29,  1916  (39  Stat., 
587),  establishino;  a  Naval  Reserve  Force  to  con- 
sist of  six  classes,  viz,  the  Fleet  Naval  Reserve, 
the  Naval  Reserve,  the  Naval  Auxiliary 
Reserve,  the  Naval  Coast  Defense  Reserve,  the 
Volunteer  Naval  Reserve,  and  the  Naval  Re- 
servo  Flpug  Corps.  (23  Comp.  Dec,  190. 
The  act  last  cited  also  established  a  Marine 
Corps  Reserve  and  National  Naval  Vohniteers, 
and  was  amended  by  acts  of  March  4,  1917,  39 
Stat.,  1174;  April  25,  1917,  40  Stat.,  38;  May 
22,  1917,  40  Stat.,  84;  July  1,  1918,  40  Stat., 
708,  712;  Jidv  11, 1919,  41  Stat.,  138-141;  and 
June  4,  1920,  41  Stat.,  817,  824,  834,  837.) 

Retired  enlisted  men. — A  retired  list  of 
enlisted  men  and  appointed  petty  officers  in 
the  Navy  was  authorized  by  act  of  March  3, 1899, 
section  17  (30  Stat.,  1008),  which  has  been 
amended  by  subsequent  enactments  (see  acts 
June  26,  1906,. 34  Stat.,  451;  Mar.  2,  1907,  38 
Stat.,  1217);  and  by  act  of  March  3,  1915  (34 
Stat.,  941),  it  was  provided  that  "the  Secretary 
of  the  Navy  is  authorized  in  time  of  war,  or 
when,  in  the  opinion  of  the  President,  war  is 
threatened,  to  call  any  enlisted  man  on  the  re- 
tired list  into  active  service  for  such  duty  as  he 
may  be  able  to  perform."  The  act  of  August 
29, 1916(39  Stat., 591),  enacted  that  "  the  Secre- 
tary of  the  Navy  is  authorized  in  time  of  war  or 
when  a  national  emergency  exists  to  call  any 
enlisted  man  on  the  retired  list  into  active  serv- 
ice for  such  duty  as  he  may  be  able  to  perform. 
While  so  employed  such  enUsted  men  shall  re- 
ceive the  same  pay  and  allowances  they  were 
recei\'ing  wnen  placed  on  the  retired  Ust. "  By 
act  of  July  1,  1918  (40  Stat.,_  719),  it  was  pro- 
vided that  any  retired  enlisted  man  of  the 
Navy  or  Marine  Corps  ordered  into  active 
service  "shall  be  eligible  for  promotion  and  he 
shall  be  entitled  to  tlie  pay  and  benefits  of  con- 
tinuous service  of  such  rank  and  for  such  length 
of  time  as  he  is  or  has  been  employed  in  active 
service,  and  when  relieved  of  active  service 
shall  retain  upon  the  retired  list  the  rank  and 
service  held  by  him  at  the  time  of  such  relief, 
with  the  pay  and  allowances  of  such  rank  on 
the  retired  list." 

Retired  enlisted  men  form  no  part  of  the  or- 
ganization of  the  Army.  They  sever  their  con- 
nection with  the  Army  when  they  go  upon  the 
retired  list  for  the  purpose  of  receiving  at  the 
hands  of  the  Government  retired  pay.  They 
are  in  effect  pensioners.  They  have  no  mili- 
tary duty  to  perform  and  can  not  be  required  to 
perform  any.  It  is  true  that  in  the  act  of  April 
25,  1914  (38  Stat.,  350),  known  as  the  volunteer 
act,  provision  is  made  for  the  employment  of  re- 
tired cnli'^ted  men  ff)r  the  performance  of  certain 
military  duties,  and,  while  so  employed,  they 
doubtless  become  "troops  of  the  United  States. ' ' 
(Union  Pac.  R.  Co.  v.  U.  S.,  52  Ct.  Cls.,  226, 
citing  Murphy  v.  U.  S.,  38  Ct.  Cls.,  511,  521.) 

Enlisted  men  of  the  insular  force  are 
in  contemplation  of  law  enlisted  men  or  ap- 
prentices of  the  U.  S.  Navy,  and  therefore 
are  entitled  to  the  clothing  bounty  proWded 
by  law  for  "enlisted  men  anfl  apprentices  of 
the  Navy,"  and,  where  detained  intheser\ice 


after  expiration  of  their  term  of  enlistment,  to 
the  one-fourth  additional  pay  provided  for  by 
section  1422,  Revised  Statutes.  (12  Comp. 
Dec,  189). 

In  pursuance  of  the  authority  conferred  by 
section  1509,  Revised  Statutes,  the  President 
on  April  5, 1901,  issued  an  Executive  order  pro- 
viding that  "the  Secretary  of  the  Navy  is 
authorized  to  enlist  in  the  insular  force,  United 
States  Navy,  which  is  hereby  established, 
not  to  exceed  500  Filipinos  in  the  following 
ratings  and  at  the  rates  of  pay  indicated 
*  *  *."  [Art.  R-4429,  Navy  Regs,,  1913] 
Although,  under  the  foregoing  Executive  order 
the  men  are  enlisted  in  what  is  designated  as 
the  insular  force,  U.  S.  Navy,  they  are  never- 
theless enlisted  men  in  and  of  the  Regular 
Navy  of  the  United  States.  The  fact  that  they 
are  attached  to  a  part  or  branch  thereof  termed 
the  insular  force  can  not  affect  the  conclusion 
j  ust  stated ;  for  said  insular  force  was  established 
under  and  by  \Trtue  of  the  statutes  relating  to 
and  governing  the  Navy  of  the  United  States, 
and  unless  said  insular  force  be  a  part  of  the 
Regular  Navy  there  would  exist  no  authority 
for  the  establishment  of  such  force.  (12  Comp. 
Dec,  189.) 

Men  enlisted  for  vocational  training'. — 
"In  cases  of  dismemberment,  of  injuries  to 
sight  or  hearing,  and  of  other  injuries  com- 
monly causing  permanent  disability,  the  in- 
jured person  shall  follow  such  course  or  courses 
of  rehabilitation,  reeducation,  and  vocational 
training  as  the  United  States  may  provide  or 
procure  to  be  provided.  Should  such  course 
prevent  the  injured  person  from  following  a 
substantially  gainful  occupation  while  taking 
same,  a  form  of  enlistment  may  be  required 
which  shall  bring  the  injured  person  into  the 
military  or  naval  service.  Such  enlistment 
shall  entitle  the  person  to  full  pay  as  during 
the  last  month  of  his  active  service,  and  his 
family  to  family  allowances  and  allotment  as 
hereinbefore  provided,  in  lieu  of  all  other  com- 
pensation for  the  time  being."  (War  Risk  In- 
surance Act  of  Oct.  6,  1917,  sec.  304,  40  Stat., 
407. )  [This  section  was  rej^ealed  by  act  of  June 
27,  1918,  sec  10  (40  Stat.,  620),  and  other  pro- 
visions substituted  therefor  by  section  2  of  the 
same  act  (40  Stat.,  617),  allowing  pay,  etc., 
without  enlistment.] 

Apprentices  at  navy  yards  not  enlisted 
men. — Service  as  an  apprentice  in  a  navy 
yard  is  not  8er^'ice  as  an  enlisted  man  within 
the  meaning  of  the  act  of  March  3,  1883  (22 
Stat.,  473),  entitling  officers  to  credit  for  pre- 
vious service  in  the  Army  or  Navy.  (Davis  v. 
U.  S.,28Ct.  Cls.,21.) 

There  was  no  statute  authorizing  the  employ- 
ment of  persons  as  apprentices  in  connection 
with  navy  yards,  and  whatever  was  done  in 
that  particular  w^as  under  Na\'y  regulations. 
In  the  year  1852  the  Navy  Department  adopted 
certain  regulations  "for  the  admission  of  ap- 
prentices into  the  navy  yards  of  the  United 
States,"  under  which  the  claimant  became  an 
apprentice.  Those  regulations  (which  were 
not  the  first  on  the  subject)  prescribed  the 
manner  in  which  a  boy  might  become  an  ap- 
prentice in  the  navy  yards  by  being  examined 
before  a  board.  The  applicant  had  to  be  over 
fifteen  and  less  than  seventeen  years  of  age. 


538 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1417. 


possessed  of  a  good  character,  and  having  the 
physical  ability  to  perform  the  labor  incident 
to  thesituation.    (Davis  t;.  U.  S.,  28  Ct.  Cls.,  21.) 

The  regulations  of  1852  [above  referred  to] 
were  in  force  at  the  time  the  claimant  became  an 
apprentice,  and  were  the  authority  on  the  part 
of  the  naval  officer  to  enter  into  the  agreement 
by  which  his  relations  were  established  and 
upon  wliich  he  now  seeks  a  benefit  under  the  act 
of  March  3, 1883  (22  Stat.,  473).  Theactof  June 
30, 1789  (1  Stat.,  575),  and  all  subsequent  acts  to 
and  including  the  act  of  March  3,  1837  (5  Stat., 
153),  had  reference  to  the  employment  of  boys 
in  the  regular  naval  service  on  board  ships 
and  not  their  employment  in  the  navy  yards  as 
pro\dded  for  in  the  regulations  of  1852  and 
former  regulations.  (Davis  v.  U.  S.,  28  Ct. 
Cls.,  21.) 

The  relation  between  the  defendants  and 
claimant  was  established  by  the  agreement 
providing  for  the  apprenticeship  of  the  claim- 
ant, which  waa  executed  by  his  father  and  him 
jointly  with  the  agent  of  the  defendants,  and 
which  simply  provided  for  the  performance  of 
duty  ordinarily  incident  to  an  indentured 
apprentice.  He  waa  not  required  to  take  an 
oath,  perform  any  naval  or  military  duty,  but 
simply  to  well  and  truly  serve  the  United 
States,  be  obedient  to  all  persons  in  authority 
over  him,  and  subservient  to  all  laws  and  regu- 
lations that  might  be  established  for  the  govern- 
ment of  navy  yards.  He  was  required  to 
furnish  his  own  tools,  board,  clothing,  and 
medical  attendance .  The  service  which  he  was 
to  perform  was  not  subject  to  the  restraints,  in- 
conveniences, and  powers  incident  to  military 
or  naval  service,  but  such  restrictions  as  are 
legally  and  ordinarily  incident  to  the  relation 
of  master  and  apprentice.  No  statute  of  the 
United  States  had!^  provided  for  the  enlistment 
of  men  or  boys  to  be  employed  in  the  navy 
yards  of  the  United  States,  and  the  regulations 
did  not  provide  for  any  such  enlistment,  if  that 
could  be  done  by  mere  regulations.  If  the 
claimant  had  failed  to  perform  his  duty  and  had 
deserted  from  the  service,  it  can  not  be  said 
that  he  would  have  been  amenable  to  the  laws 
of  war  and  liable  to  be  shot  for  desertion. 
(Davis -y.  U.  S.,  28  Ct.  Cls.,  21.) 

Section  1417  provides  for  the  enlistment  in 
the  Navy  of  "apprentices  and  boys;"  sections 
1418  and  1419  provide  for  the  enlistment  of 
minors.  Nowhere  do  we  find  in  the  statutes 
any  reference  to  the  service  of  boys  in  the  navy 
yards  spoken  of  as  an  enlistment  in  the  Navy. 
The  service  which  boys  as  apprentices  were 
called  upon  to  perform  was  on  board  ship. 
(Davis  V.  U.  S.,  28  Ct.  Cls.,  21;  see  also  4  Op. 
Atty.  Gen.,  89). 

In  the  absence  of  any  law  providing  for  the 
enlistment  of  boys  into  the  Navy  to  be  em- 
ployed as  apprentices  in  the  navy  yards,  the 
fact  that  claimant's  connection  with  the  service 
was  founded  on  the  ordinary  contract  of  appren- 
ticeship, that  he  took  no  oath  and  was  not  sub- 
ject to  the  performance  of  any  military  duty  or 
subject  to  the  restrictions  of  military  life,  that 
he  was  not  amenable  to  the  highest  obligation 
of  a  soldier — continued  service,  and  that  his 
whole  duty  was  the  result  of  a  contract  or  agree- 
ment made  by  him  and  his  father  founded  on 
the  regulations  of  the  Navy,  it  is  determined. 


as  a  conclusion  of  law,  that  he  does  not  come 
within  the  act  of  March  3,  1883,  22  Stat.,  473. 
(Davis t;.  U.  S.,  28  Ct.  Cls.,  21.) 

A  militiaman,  when  brought  into  the 
service  of  the  United  States  in  accordance 
with  law,  is  an  "enlisted  man  on  the  active 
list"  of  the  Navy  within  the  meaning  of  laws 
providing  for  payment  of  a  gratuity  to  the  bene- 
ficiary of  any  enlisted  man  on  the  active  list  of 
the  Navy  in  case  of  the  latter'a  death  from 
causes  not  the  result  of  his  own  misconduct. 
The  active  force  of  the  Navy  is  increased  by 
laws  providing  for  the  induction  of  the  militia 
into  the  service  of  the  United  States.  (See  23 
Comp.  Dec,  36.  But  see  act  June  4,  1920  (41 
Stat.,  824),  which  excludes  from  the  benefits 
of  death  gratuity  members  of  forces  of  the  Navy 
other  than  the  Regular  Navy  and  Marine  Corps.) 

Enlisted  men  of  the  Coast  Guard. — The 
Navy  is  made  up  of  and  embraces  its  compo- 
nent parts;  hence  in  law  and  in  fact  it  em- 
braces the  Coast  Guard  in  time  of  war  just  as 
certainly  as  it  does  any  other  military  force  op- 
erating under  the  orders  of  the  Secretary  of  the 
Navy.  Accordingly  the  word ' '  Navy ' '  is  broad 
enough  to  include  the  Coast  Guard  in  time  of 
war,  service  in  the  Coast  Guard  at  such  time  is 
service  in  the  Navy,  and  enlisted  men  of  the 
Coast  Guard  in  time  of  war  are  enlisted  men  of 
the  Navy.  However,  the  word  ' '  Navy ' '  as  used 
in  a  law,  may  have  a  broad  or  restricted  mean- 
ing, depending  upon  the  context.  As  used  in 
the  act  of  August  31,  1918,  section  3  (40  Stat., 
956),  providing  that  "men  registered  under 
the  provisions  of  this  act  who  have  served  in 
the  Navy  of  the  United  States  shall,  upon  their 
own  application,  be  permitted  to  reenlistin  the 
naval  or  marine  service  of  the  United  States 
with  and  by  the  approval  of  the  Secretary  of 
the  Navy,"  it  includes  a  registrant  who  served 
in  the  Coast  Guard  in  time  of  war.  (File 
28798-773,  Nov.  22,  1918.) 

Advancement  of  apprentices  to  warrant 
officers. — When  section  1417,  Revised  Statutes, 
was  reenacted  in  1879  to  read  as  above,  special 
inducements  were  offered  to  honorably  dis- 
charged boys  to  reenUst  within  three  months 
after  so  discharged.  (See  sec.  1573,  R.  S.) 
These  benefits,  aa  well  as  certain  additional 
inducements,  have  since  been  made  applicable 
to  enUsted  men  or  apprentices  who  reenlist 
within  foiu-  months  after  being  honorably  dis- 
charged. (See  sec.  1573,  R.  S.,  as  amended.) 
The  provision  in  section  1417,  as  reenacted, 
limiting  preference  in  appointment  as  warrant 
officers  to  such  apprentices  or  boys  who  reen- 
list within  three  months  after  being  honorably 
discharged  has  remained  unchanged. 

By  the  Navy  Regulations,  1913  (Art.  R-3310), 
it  is  provided,  with  reference  to  appointments 
aa  boatswains,  gunners,  machinista,  and  car- 
penters, that  such  appointments  shall  be  made 
"only  after  competitive  professional  examina- 
tions," and  that  "when  candidates  from  the 
naval  service  and  from  civil  life  possess  equal 
qualifications,  preference  shall  be  given  to 
those  from  the  naval  ser\dce." 

As  to  term  of  enlistment,  see  note  to  section 
1418,  Revised  Statutes. 

As  to  appointment  of  warrant  officers,  see 
further  sections  1405-1407,  Revised  Statutes, 
and  notes  thereto. 


54641°— 22- 


-8.5 


539 


Sec.  1418. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Sec.  1418.  [Enlistment,  age  and  term  of.]  Boys  between  the  ages  of  four- 
teen and  eighteen  j-eai-s  may  be  enlisted  to  serve  in  the  Navy  until  they  shall 
arrive  at  the  age  of  twenty-one  years;  other  persons  may  be  enlisted  to  servo 
for  a  period  not  exceeding  five  years,  unless  sooner  discharged  by  direction  of 
the  President. 


This  section  was  expressly  amended  and  re- 
enacted  to  read  as  above  by  act  of  May  12, 
1879  (21  Stat.,  3),  as  amended  by  act  of  Feb- 
ruary 23,  1881,  section  2  (21  Stat.,  338),  the 
amendment  made  by  the  latter  act  con- 
sisting in  substituting  the  word  "fourteen" 
for  ''(ifteen"  as  used  in  the  former  act. 

As  originally  enacted  this  section  read  as  fol- 
lows: "Sec.  1418.  Boys  between  the  ages 
of  sixteen  and  eighteen  years  may  be  en- 
listed to  serve  in  the  Navy  until  they  shall 
arrive  at  the  age  of  twenty-one  years;  other 
persons  may  be  enlisted  to  serve  for  a  period 
not  exceeding  five  years,  unless  sooner 
discharged  by  direction  of  the  President." 
[See  §  1624;  art.  19.]— (2  March,  1837,  c. 
21,  s.  1,  V.  5,  p.  153;  In  re  McNulty,  2 
Lowell,  270.) 

Other  amendments  to  this  section  were  made 
by  act  of  March  3,  1899,  section  16  (30  Stat., 
1008),  which  provided  that  "  hereafter  the 
term  of  enlistment  of  all  enlisted  men  of 
the  Navy  shall  be  four  years,"  and  act 
of  August  22,  1912  (37  Stat.,  330),  which 
provided  that  "the  term  of  enlistment  of 
all  enlisted  men  of  the  United  States  Navy 
other  than  those  who  are  enlisted  during 
minority  shall  be  foiu"  years,"  and  made 
further  provision  in  the  same  act  for  ex- 
tension of  enUstments,  prior  to  expiration 
of  the  four-year  term,  for  periods  of  one, 
two,  three,  or  four  years,  and  for  the  dis- 
charge of  any  enlisted  man  within  thi'ee 
months  before  the  expiration  of  his  term 
of  enhstment  or  extended  enlistment, 
"without  prejudice  to  any  right,  privilege, 
or  benefit  that  he  would  have  received, 
except  pay  and  allowances  for  the  unex- 
pired period  not  served,  or  to  which  he 
would  thereafter  become  entitled,  had  he 
served  his  full  term  of  enlistment  or  ex- 
tended enlistment."  By  act  April  25, 1917 
(40  Stat.,  38),  extension  of  minority  enlist- 
ments in  the  Na\'y  and  Marine  Corps  was 
authorized  under  similar  conditions  as  pro- 
vided by  law  for  extending  other  enlist- 
ments. By  act  of  August  29, 1916  (39  Stat., 
560),  it  was  provided  that  enlisted  men  who 
serve  one  year  at  sea  shall,  in  time  of  peace, 
if_  they  so  elect,  be  given  an  honorable 
discharge  without  cost;  and  the  same  act 
(39  Stat.,  580)  authorized  the  furlough  of 
enUsted  men,  without  pay,  for  the  imex- 
pired  portion  of  enlistment,  in  lieu  of  dis- 
charge by  purchase,  subject  to  recall  in  time 
of  emergency.  So  much  of  said  act  as  au- 
thorized honorable  discharges  after  one 
year's  service  at  sea  was  repealed  by  act  of 
March  4,  1917  (39  Stat.,  1171).  By  act  of 
August  29,  1916  (39  Stat.,  586),  it  was  pro- 
vided that  the  Secretary  of  the  Na\'y  shall 
establish  regulations  governing  the  term 
of  enlistment  of  the  enlisted  men  of  the 


Flying  Corps.  By  act  of  May  22,  1917, 
section  3  (40  Stat.,  85),  it  was  provided 
"that  enlistments  in  the  Navy  and  Marine 
Corps,  during  such  time  as  the  United 
States  may  be  at  war,  shall  be  for  four  years, 
or  for  such  shorter  period  or  periods  as  the 
President  may  prescribe,  or  for  the  period 
of  the  present  war."  By  act  of  July  11, 
1919  (41  Stat.,  134),  it  was  pro\ided  that 
"until  June  30,  1920,  enlistments  in  the 
Navy  may  be  for  terms  of  two,  three,  or 
four  years,  and  all  laws  now  applicable  to 
four  year  enlistments  shall  apply,  under 
such  regulations  as  may  be  prescribed  by 
the  Secretary  of  the  Navy,  to  enlistments 
for  a  shorter  period  with  proportionate 
benefits  upon  discharge  and  reenlistment." 
By  act  of  June  4,  1920,  section  7  (41  Stat., 
836),  the  provision  of  the  act  last  quoted 
was  reenacted  without  limitation  as  to 
time. 

Detention  of  men  after  expiration  of  enhstment, 
or  their  reentering  to  serve  until  their 
return  to  the  United  States,  is  authorized 
by  section  1422,  Revised  Statutes. 

Detention  of  men  after  expiration  of  enlistment 
to  make  good  time  lost  on  account  of  injury, 
sickness  or  disease  resulting  from  intem- 
perate use  of  drugs  or  alcoholic  Uquors  or 
other  misconduct.  (Act  Aug.  29,  1916,  39 
Stat.,  580,  as  amended  by  act  July  1, 1918, 
40  Stat.,  717.) 

Discharge  of  minors  who  swear  falsely  as  to 
their  age  is  required  by  the  following  pro- 
vision in  the  act  of  March  3,  1915  (38  Stat., 
931):  ''Provided,  That  hereafter  no  part  of 
any  appropriation  for  the  naval  service 
shall  be  expended  in  recruiting  seamen, 
ordinary  seamen,  or  apprentice  seamen, 
imless  in  case  of  minors,  a  certificate  of 
birth  or  a  verified  written  statement  by  the 
parents,  or  either  of  them,  or  in  case  of  their 
death  a  verified  written  statement  by  the 
legal  guardian,  be  first  furnished  to  the 
recruiting  officer,  showing  applicant  to  be 
of  age  required  by  naval  regulations,  which 
shall  be  presented  with  the  appUcation  for 
enlistment;  except  in  cases  where  such  cer- 
tificate is  unobtainable,  enlistment  may  be 
made  when  the  recruiting  officer  is  con- 
vinced that  oath  of  applicant  as  to  age  is 
credible;  but  when  it  is  afterwards  found, 
upon  evidence  satisfactory  to  the  Navy 
Department,  that  recruit  has  sworn  falsely 
as  to  age,  and  is  under  eighteen  years  of  age 
at  the  time  of  enlistment,  he  shall,  upon 
request  of  either  parent,  or,  in  case  of  their 
death,  by  the  legal  guardian,  be  released 
from  ser\dce  in  the  Navy,  upon  payment  of 
full  cost  of  first  outfit,  unless,  in  any  given 
case,  the  Secretary,  in  his  discretion,  shall 
relieve  said  recruit  of  such  payment." 
Provisions  somewhat  similar  to  this,  but 


540 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1418. 


applicable  to  the  fiscal  year  only,  had  been 
contained  in  the  annual  naval  appropria- 
tion act  for  previous  years,  under  "Bureau 
of  Navigation." 
Enlistment  of  minors  under  14  years  of  age  is 
punishable  under  section  1624,  Re\Tsed 
Statutes,  article  19,  as  amended. 
Oath  of  allegiance  to  be  taken  by  enlisted  men 
of  the  Navy  is  that  which  was  prescribed 
for  the  Army  by  the  law  in  force  on  March  3, 
1899.  (Act  Mar.  3,  1899,  sec.  25,  30  Stat., 
1009.)  The  oath  then  prescribed  for  en- 
listed men  of  the  Army  was  contained  in 
section  1342,  R.  S.,  art.  2,  as  follows:  "I, 
A.  B.,  do  solemnly  swear  (or  affirm)  that 
I  will  bear  true  faith  and  allegiance  to  the 
United  States  of  America;  that  I  will  serve 
them  honestly  and  faithfully  against  all 
their  enemies  whomsoever;  and  that  I  will 
obey  the  orders  of  the  President  of  the 
United  States,  and  the  orders  of  the  officers 
appointed  over  me,  according  to  the  rides 
and  articles  of  war." 
Punishment  of  fraudulent  enlistment  is  pre- 
scribed by  act  of  March  3,  1893  (27  Stat., 
716),  amending  section  1624,  Revised  Stat- 
utes, article  22. 
Reenlistment  of  men  with  special  benefits 
within  fom"  months  after  their  discharge  is 
provided  for  by  section  1573,  Revised 
Statutes,  and  amendments  noted  there- 
under. See  also  section  1417,  Revised 
Statutes,  as  amended.  By  act  of  August 
29,  1916  (39  Stat.,  590),  it  was  provided 
that  enlisted  men  who  enroll  in  the  Fleet 
Naval  Reserve  within  four  months  after, 
their  discharge  from  the  regular  service, 
and  who  reenlist  in  the  regular  service 
within  four  months  after  discharge  from 
such  reserve,  shall  have  the  same  benefits 
as  though  they  had  reenlisted  in  the  regular 
service  within  four  months  after  discharge 
therefrom. 
Refund  of  enlistment  bounty  where  men  are 
discharged  within  six  months  of  enlistment, 
for  causes  other  than  disability  incurred  in 
line  of  duty,  is  provided  for  by  act  of  June 
29, 1906  (34  Stat. ,  556) ;  and  the  Secretary  of 
the  Navy  may  require  similar  refund  in 
cases  where  men  are  discharged  during  the 
first  year  of  enlistment  by  request,  for  in- 
aptitude, as  undesirable,  or  for  disability 
not  incurred  in  line  of  duty.  (Act  Mar.  2, 
1907,  34  Stat.,  1176.)  The  furnishing  of 
such  bounty  on  enlistment  was  authorized 
by  act  of  March  1, 1889  (25  Stat.,  781),  and 
amendments  thereto.  (See  sec.  1569,  R.  S.) 
Refund  of  uniform  gratuity  by  members 
of  the  Naval  Reserve  Force  severing  their 
connection  with  the  service  without  com- 
pulsion on  the  part  of  the  Government  is 
provided  for  by  act  of  August  29,  1916  (39 
Stat.,  589),  as  amended  by  act  of  July  1, 
1918  (40  Stat.,  711). 
Term  of  enlistment  in  the  Marine  Corps  is  pre- 
scribed by  section  1608  of  the  Revised 
Statutes  and  amendments  thereto. 
Term  of  enlistment. — Section  1418  of  the 
Revised  Statutes,  fixing  the  term  of  enlist- 
ment during  minority  in  the  case  of  persons  en- 
listed in  the  Navy  before  arri^^ng  at  the  age  of 
18  yeai's,  and  for  not  exceeding  five  years  in  the 


case  of  other  persons,  was  amended  by  section 
16  of  the  Na\'y  personnel  act  of  March  3,  1899, 
which  provided  "that  hereafter  the  term  of 
enlistment  of  all  enlisted  men  of  the  Navy  shall 
be  four  years."     (5  Comp.  Dec,  929.) 

The  act  of  March  3,  1899  (30  Stat.,  1008), 
makes  the  term  of  enlistment  for  all  persons 
four  years.  (Thomas  v.  Winne,  122  Fed.  Rep., 
395). 

Section  1418,  as  amended  by  act  of  March  3, 
1899,  section  16  (30  Stat.,  1008),  provided  that 
boys  between  14  and  18  years  of  age  may  be  en- 
listed in  the  Navy  until  they  arrive  at  the  age  of 
21,  while  other  persons  may  be  enlisted  for  a 
term  not  exceeding  four  years.  (Ex  parte 
Lisk,  145  Fed.  Rep.,  860.) 

There  is  no  provision  of  law  for  the  enlist- 
ment for  four  years  of  anyone  under  18  years  of 
age.  However,  where  a  minor  of  15  years 
fraudulently  enlists  for  a  term  of  four  years  he 
may  be  held  to  serve  out  that  term  and  need 
not  be  required  with  consent  of  his  father  to 
agree  to  remain  in  the  service  during  minority. 
The  enlistment  is  a  valid  one  unless  avoided  by 
the  United  States.  (File  24368-7,  Feb.  14, 
1912.) 

Prior  to  the  enactment  of  March  3,  1899, 
section  16  (30  Stat.,  1008),  the  enlistment  of 
men  in  the  Navy,  under  section  1418,  was  for  a 
period  not  to  exceed  five  years,  but  the  enlist- 
ment period  had  been  for  three  y^ars,  and 
under  section  1426  honorable  discharges  were 
granted  to  men  enlisting  for  three  years,  and 
upon  reenlistment  for  three  years  within  three 
months  after  discharge  they  became  entitled  to 
the  gratuity  provided  by  section  1573.  (16 
Comp.  Dec,  815.) 

Section  1418,  Revised  Statutes,  required  en- 
listments in  the  Navy  to  be  for  not  exceeding 
five  years,  and  section  1608  declared  that  en- 
listments in  the  Marine  Corps  should  be  for  not 
less  than  five  years.  Thus  it  will  be  seen  that 
the  statutes  fixed  a  maximum  term  of  enlist- 
ment in  the  Navy,  and  a  minimiun  term  of  en- " 
listment  in  the  Marine  Corps,  each  at  five  years. 
At  the  same  time,  honorable  discharges  were 
granted  to  those  who  had  fulfilled  the  three- 
year  enlistment  in  the  Navy  (sec.1426,  R.  S.). 
By  act  of  March  3,  1899,  section  16(30  Stat., 
1008),  the  term  of  enlistment  in  the  Navy  waa 
changed  to  four  years,  and  by  act  of  March  3, 
1901  (31  Stat.,  1132),  enlistment  in  the  Marine 
Corps  was  reduced  to  not  less  than  four  years. 
(In  re  Brykczjmski,  207  Fed.  Rep.,  813.) 

The  laws  relating  to  the  granting  of  honorable 
discharges,  and  to  extra  pay  on  reenlisting  after 
such  discharges  within  a  certain  time,  as  well 
as  the  regulation  granting  an  increase  of  month- 
ly pay  on  reenlisting  within  three  months  after 
an  honorable  discharge,  were  based  upon  en- 
listment for  not  less  than  three  years.  The  in- 
crease in  monthly  pay  for  reenlisting  is  now 
fixed  by  law,  instead  of  by  Navy  regulation 
(sec  1573,  R.  S.,  as  amended  by  sec  16,  Navy 
personnel  act  Mar.  3,  1899).  Accordingly  a 
man,  having  served  out  his  previous  enlistment 
of  three  years,  so  as  to  entitle  him  to  an  honor- 
able discharge  and  having  enlisted  for  the 
regular  term  of  four  years  within  the  time  pre- 
scribed, comes  within  the  operation  of  the  new 
law  and  is  entitled  under  his  new  enlistment 
to  the  four  months'  reenlistment  pay  and  the 


Ml 


Sec.  1418. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


increase  per  month  to  the  rate  of  pay  he  was 
receiving  when  discharged,  as  authorized  by 
the  amended  section  1573,  instead  of  three 
months'  reenlistment  pay  and  the  addition  of$l 
per  month  as  uiuU-r  the  law  and  regulations 
prior  to  the  passage  of  the  Navy  personnel  act. 
(5("omp.  Dec.,  929.) 

Detention  of  men  after  expiration  of 
enlistment. — Enlistments  in  our  service  are 
reciuired  by  law  to  be  for  a  prescribed  period, 
the  last  day  of  the  term  being  as  much  fixed  by 
the  contract  as  the  first.  Consequently,  unless 
there  exists  some  law  when  the  contract  is  en- 
tered into  providing  for  a  contingent  prolonga- 
tion of  the  term;  or  unless  the  soldier  before 
the  term  is  up  consents  to  an  extension  thereof, 
with  the  last  day  of  the  term  his  engagement 
necessarily  expires.  (15  Op.  Atty.  Gen.,  161; 
12  Comp.  Dec,  342;  compare  Op.  Atty.  Gen., 
Feb.  27,  1922,  noted  below.) 

A  man  whose  enlistment  has  expired,  and  in 
whose  case  there  is  no  legal  authority  for  retain- 
ing him  in  the  service  in  point  of  law  is  entirely 
discharged,  although  no  discharge  certificate  is 
issued  to  him.  Nevertheless,  if  he  voluntarily 
remain  in  a  place  subject  to  naval  jurisdiction 
to  await  a  certificate  of  discharge  or  for  other 
purposes,  he  would  be  liable  in  a  limited  degree 
to  the  regulations  necessary  to  the  peace  and 
subordination  of  the  garrison,  and  might  be 
imprisoned  if  necessary  to  prevent  unlawful 
\iolence  on  his  part,  and  to  keep  him  until  he 
could  be  placed  in  the  hands  of  the  proper  civil 
authorities  having  jurisdiction  to  punish  him. 
(U.S.  1,1.  Travers,  28  Fed.  Cas.  No.  16537,  noted 
more  fully  under  Constitution,  Art.  I,  sec.  8, 
clause  14,  "Persons  not  subject  to  jurisdic- 
tion of  Federal  courts-martial.") 

It  would  seem  that  where  a  man  has  com- 
pleted his  period  of  enlistment  and  earned  an 
honorable  discharge,  if  a  certificate  of  discharge 
is  inadvertently  not  issued  at  the  time,  it  may 
thereafter  be  issued  as  of  the  date  he  was  en- 
titled thereto,  and  his  continuance  in  the 
service,  under  a  purported  extension  of  enlist- 
ment for  four  years,  which  is  not  valid  as  an 
extension,  may  be  regarded  as  a  reenlistment 
for  four  years.  (File  7657-295,  July  27,  1915; 
butseeComp.Dec,  Aug.  14, 1915,174  S.and  A. 
Memo.,  3759;  and  compare  file  7657-65,  noted 
under  sec.  1422,  R.  S.,  "Detention  of  enlisted 
man  awaiting  discharge  papers.") 

When  an  enlisted  man  voluntarily  continued 
to  serve  after  expiration  of  his  enlistment  with- 
out being  discharged  and  reenlisted,  it  will  be 
held  to  be  a  continuance  of  his  enlistment  upon 
the  same  terms  as  before,  but  for  no  definite 
period.  (26  Op.  Atty.  Gen.,  319,  noted  more 
fully  under  sec.  1408,  R.  S.,  "Status  of  mates 
when  not  discharged  upon  expiration  of  enlist- 
ment.") 

An  enlisted  man,  enlisted  for  minority,  ex- 
tended his  enlistment  for  periods  aggregating 
two  years.  Such  extension  was  not  authorized 
in  the  case  of  persons  enlisted  for  minority. 
He  should  therefore  be  considered  as  in  the 
service  under  his  original  enlistment  from 
which  he  has  not  been  discharged  and  entitled 
to  the  same  rate  of  pay  thereunder  as  if  no 
attempted  extension  of  enlistment  had  been 
made,  but  he  is  not  entitled  to  the  additional 
pay  allowed  by  section  1422,  Revised  Statutes. 


(Comp.  Dec,  June  6, 1914, 160  S.and  A.  Memo  , 
3255.) 

The  contract  of  an  enlisted  man  in  the  Navy 
calls  for  four  years  actual  service — not  for 
service  during  a  term  of  four  years.  Nothing  is 
said  in  the  contract  respecting  continuity  of 
the  service,  but,  on  the  contrary,  article  879, 
Navy  Regulations  [1905]  provides  that  "enlisted 
men  who  are  apprehended  or  who  surrender 
themselves  as  deserters  or  stragglers  from  the 
Navy  shall  not  be  entitled  to  discharge  until 
they  have  served  out  the  period  of  their  un- 
authorized absence."  The  Comptroller  has 
said,  with  regard  to  this  provision  (12  Comp. 
Dec,  342):  "I  do  not  think  that  this  require- 
ment has  the  effect  of  extending  his  term  of 
enlistment,  but  requires  that  he  shall  be  held 
in  the  service  after  the  expiration  of  his  term  of 
enlistment."  That  this  w^as  not  the  intention 
of  the  regulation  in  question,  however,  would 
seem  to  be  clear  from  its  further  provision: 
"This  does  not  apply  to  those  enlisted  for  the 
period  of  their  minoritv."  (File  3031-11,  July 
15,  1907.) 

"The  Department  decided,  May  12,  1908 
[file  2471-5],  that  the  term  of  enlistment  in 
the  Navy  having  been  fixed  by  law  at  four 
years,  no  authority  existed  for  retaining  en- 
listed men  in  the  Navy  after  expiration  of 
enlistment  for  the  purpose  of  making  up  time 
lost  by  absence.  Article  879,  Navy  Regula- 
tions, 1905,  which  required  enlisted  men  of  the 
Navy  to  serve  out  the  period  of  their  unauthor- 
ized absence  before  being  entitled  to  discharge, 
was  accordingly  revoked  by  the  Secretary  of 
the  Navy  with  the  approval  of  the  President." 
(File  26251-6297:2,  July  10,  1913;  compare  Op. 
Atty.  Gen.,  Feb.  27 ,1922,  noted  below.) 

"As  enlistments  in  the  Marine  Corps  are 
governed  by  the  laws  and  regulations  relating 
to  the  Navy,  the  Department  holds  that  Marine 
Corps  General  Order  No.  40,  of  October  19, 
1909  [concerning  the  detention  of  marines 
after  expiration  of  enlistment  to  make  good 
time  lost  by  unauthorized  absence],  is  without 
sanction  of  and  in  fact  contrary  to  the  require- 
ments of  law  and  that  the  practice  of  requiring 
men  to  make  up  time  lost  by  absence  either 
in  accordance  \Adth  article  48  of  the  Articles  of 
War  or  otherwise  will  immediately  be  discon- 
tinued." (File  26251-6297:2,  July  10,  1913; 
compare  Comp.  Dec,  Dec.  4,  1905,  58  S.and  A. 
Memo.,  30;  and  Op.  Atty.  Gen.,  Feb.  27,  1922, 
noted  below.) 

A  period  of  desertion  must  be  deducted  from 
the  contract  period  of  enlistment,  and  the  latter 
accordingly  extended  until  the  man  has  fully 
served  the  term  for  which  he  contracted.  The 
man's  contract  is  to  "serve"  for  a  certain  period 
and  can  not  be  perfonned  by  desertion.  (Op. 
Atty.  Gen..  Feb.  27.  1922,  fi"le  26251-26615:8.) 

The  Supreme  Court  of  the  United  States  has 
specifically  held  that  the  detention  of  enlisted 
men  in  the  Marine  Corps  after  expiration  of 
enlistment  is  governed  by  laws  relating  to  the 
Navy.  [See  notes  to  sections  1422  and  1621, 
Revised  Statutes.]  The  fact  that  pay  of  the 
Marine  Corps  is  assimilated  by  section  1612,  Re- 
vised Statutes,  to  the  Army,  and  that  under 
certain  circumstances  enlisted  men  of  the  Army 
may  by  law  be  retained  to  make  good  time  lost  by 
unauthorized  absence,  does  not  mean  that  the 


542 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1418- 


term  of  enlistment  in  the  Marine  Corps  must  be 
changed  to  conform  to  the  conditions  in  the 
Army.  (File  26251-6297:4,  Aug.  19,  1913;  see 
also  file  26251-6297:6,  Nov.  8, 1913;  26251-6287:7, 
May  18,  1914;  Comp.  Dec,  June  3,  1914,  160 
S.  and  A.  Memo.,  3250.) 

Article  879,  Navy  Regulations,  1905,  author- 
izing the  retention  of  enlisted  men  who  axe 
apprehended  or  who  surrender  themselves  as 
deserters  or  stragglers  until  they  have  served 
out  the  period  of  their  unauthorized  absence, 
was  stricken  from  the  Navy  Regulations,  with 
the  approval  of  the  President,  on  May  20,  1908. 
A  man's  enlistment  expired  February  9,  1908, 
while  in  desertion.  Thereafter,  he  was  con- 
victed of  desertion  and  sentenced  to  a  period 
of  confinement.  Prior  to  expiration  of  his  con- 
finement he  was  inadvertently  restored  to 
duty  on  probation:  Held,  that  the  Secretary 
of  tlae  Navy,  having  convened  the  court  and 
having  approved  and  confirmed  its  proceed- 
ings, possessed  the  power  to  remit  the  for- 
feitures mentioned  in  its  sentence,  in  whole  or 
in  part  less  than  the  whole,  and  could  make 
such  remission  dependent  upon  any  condition 
consistent  with  law  (citing  13  Comp.  Dec,  726); 
it  is  not  necessary  to  decide  in  this  case  whether, 
in  the  absence  of  a  regulation,  the  Secretary 
of  the  Navy  may  hold  a  man  in  service  to  make 
good  time  lost  by  desertion;  in  this  case  the 
prisoner  was  actually  held  in  service /o?-  duty, 
and  while  so  held  he  was  entitled  to  the  pay 
of  the  rating  in  which  he  was  held.  (Comp. 
Dec,  Nov.  20,  1908,  93  S.  and  A.  Memo.,  896.) 

An  enlisted  man  serving  sentence  of  court- 
martial  was  placed  on  probation.  Dimng  the 
probationary  period  his  enlistment  expired. 
He  continued  to  serve,  vohmtarily,  without  re- 
enlisting  or  expressly  extending  his  enlistment. 
While  in  this  status  he  committed  an  offense 
for  which  he  was  tried  by  court-martial  and 
sentenced  to  imprisonment.  Held,  that  the 
court-martial  had  jurisdiction  and  he  is  legally 
held  to  serve  out  the  sentence,  but  that  so 
much  of  the  original  sentence  as  remained  un- 
executed shoxild  be  regarded  as  fully  remitted, 
his  conduct  from  the  time  he  was  placed  on 
probation  until  the  expiration  of  his  enlist- 
ment having  been  satisfactory.  (File  26251- 
17942:2,  May  5,  1919,  citing  26  Op.  Atty.  Gen., 
319,  Comp.  Dec,  Nov.  20,  1918,  93  S.  and  A. 
Memo.,  896,  etc.) 

The  contract  of  enlistment  in  the  Navy  is 
not  merely  for  four  years,  but  for  four  years  and 
until  discharged.  "A  soldier  can  not  discharge 
himself,"  and  imtil  he  has  been  discharged  by 
competent  authority  his  original  contract  con- 
tinues binding  upon  him.  An  examination  of 
15  Op.  Atty.  Gen.,  152,  161  (above  noted), 
shows  that  the  question  was  not  specifically 
presented  to  the  Attorney  General  for  deter- 
mination in  that  case,  and  was  not  thoroughly 
considered  by  him.  Certainly,  the  Attorney 
General  could  not  have  meant  to  hold  that  an 
enlisted  man  would  be  justified  in  leaving  his 
command  immediately  upon  expiration  of  his 
enlistment,  regardless  of  the  exigencies  of  the 
service,  or  other  sufficient  cause  which  might, 
in  the  opinion  of  his  superiors,  justify  his  re- 
tention for  a  reasonable  period.  The  Navy 
Regulations  recognize  that  delays  may  occur 
in  discharging  men  after  the  expiration  of  en- 


listment, by  providing  that  the  commanding 
officer  "shall  make  all  necessary  efforts  to  pre- 
vent delay  in  discharging  men  whose  terms  of 
service  have  expired"  (Art.  543,  Navy  Regs., 
1909),  and  the  Comptroller  of  the  Treasury  has  re- 
peatedly decided  that  enlisted  men  are  entitled 
to  pay  until  their  discharges  are  issued  and  de- 
livered, or  until  such  action  is  taken  as  to  make 
the  man  legally  chargeable  with  notice  of  his 
discharge,  notwithstanding  that  pay  for  service 
after  expiration  of  enlistment  may  not  be  ex- 
pressly provided  for  by  any  statutory  enact- 
ment. (See  2  Comp.  Dec,  94,  95;  7  Comp. 
Dec,  391;  and  Comp.  Dig.,  1902,  p.  146,  "Dis- 
charge, time  and  place  of  taking  effect.") 
Of  course  the  commanding  officer  would  not 
be  justified  in  arbitrarily  detaining  an  enlisted 
man  without  sufficient  cause,  and  in  such  a 
case  the  man  would  be  entitled  to  secm-e  his 
release  by  force,  if  necessary,  even  to  the  point 
of  taking  the  life  of  any  one  who  might  en- 
deavor to  prevent  him,  as  held  by  Mr.  Justice 
Story,  in  U.  S.  v.  Travers,  2  Wh.  Cr.  509, 
28  Fed.  Cas.  No.  16537.  (File  26251-5447, 
Dec  8,  1911.) 

The  regulations  for  many  years  have  con- 
tained a  provision  that  the  pay  of  an  enlisted 
man  under  treatment  in  a  hospital  on  a  foreign 
station  "continues  imtil  he  is  regularly  dis- 
charged from  the  service,  even  after  his  term 
of  enlistment  has  expired."  (File  26251-5447, 
Dec  8,  1911,  citing  art.  792,  par.  7,  Navy 
Regs.,  1909;  Comp.  Dec,  Aug.  18,  1903,  31 
S.  and  A.  Memo.,  242.  See  also,  art.  R-3582  (7), 
Navy  Regs.,  1913.) 

An  enlisted  man  may^  be  detained  in  the 
service  after  the  expiration  of  his  enlistment 
for  the  purpose  of  disciplinary  proceedings 
against  him  for  offenses  committed  prior  to  the 
expiration  of  his  enlistment;  in  such  case,  not 
having  been  discharged  from  his  contract  of 
enlistment,  and  being  detained  fo^"  sufficient 
cause,  the  terms  of  his  contract  continue 
binding  upon  him  and  his  status  as  an  enlisted 
man  of  the  Navy  is  unchanged.  Should  he, 
dining  the  period  of  such  detention,  leave  the 
service  without  permission  and  with  the  ob- 
vious intention  of  not  returning,  he  might  be 
regarded  as  a  deserter,  but  his  offense  would 
more  properly  be  charged  as  breaking  arrest, 
and  escape.  (File  26251-5447;  compare  note 
to  sec  1422,  II.  S.,  and  note  to  Constitution, 
Art.  I,  sec.  8,  clause  14,  "Persons  subject  to 
jurisdiction  of  Federal  courts-martial."  See 
also  file  26509-259,  Mar.  12,  1918,  recommend- 
ing legislation  for  trial  by  court-martial  of 
prisoners  for  offenses  committed  after  expira- 
tion of  enlistment. 

For  other  cases,  see  note  to  section  1422, 
Revised  Statutes. 

Existing  contracts  of  enlistment  may 
be  extended  by  Congress. — The  decision 
rendered  by  the  Supreme  Court  in  Wilkes  v. 
Dinsman  (7  How.,  88,  126)  expressly  held  that 
an  enlisted  man  is  subject  to  any  new  laws 
which  may  be  enacted  for  the  better  govern- 
ment of  the  Navy,  even  where  such  laws  extend 
the  period  of  his  original  contract  of  enlist- 
ment. The  Attorney  Genei-al,  something  more 
than  25  years  after  this  decision  of  the  Supreme 
Court,  held  that  the  term  of  enlistment  could 
be  extended  only  under  authority  of  some  law 


543 


Sec.  1418. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


which  exiBts  "when  the  contract  is  entered 
into."  (15  Op-  Atty.  Gen.,  152,  161.)  The 
question  presented  to  the  Attorney  General 
did  not  require  any  opinion  as  to  the  conditions 
under  wliich  the  contract  of  enlistment  might 
be  extended  beyond  the  original  term,  so  the 
above  quotation  from  his  opinion  is  not  to  be 
accorded  the  weight  due  to  a  formal  determi- 
nation of  a  doubtful  question.  (File  26251- 
5447  Dec.  8  1911.) 

By  act  of  June  3, 1916  (39  Stat.,  187,  sec.  31),  it 
was  provided  that  "all  enlistments  in  the  Regu- 
lar Army,  including  those  in  the  Regular  Army 
Reserve,  which  are  in  force  on  the  date  of  the 
outbreak  of  war,  shall  continue  in  force  for  one 
year,  imless  sooner  terminated  by  order  of  the 
Secretary  of  War,  but  nothing  herein  shall  be 
construed  to  shorten  the  time  of  enlistment 
prescribed." 

By  the  Selective  Draft  Act  of  May  18,  1917, 
section  7  (40  Stat.,  81),  it  was  provided  that  "all 
enlistments,  including  those  in  the  Regular 
Army  Reserve,  which  are  in  force  on  the  date  of 
the  approval  of  this  act  and  which  would  termi- 
nate during  the  emergency,  shall  continue  in 
force  during  the  emergency  unless  sooner  dis- 
charged; but  nothing  herein  contained  shall  be 
construed  to  shorten  the  period  of  any  existing 
enlistment." 

[In  23  Comp.  Dec,  45,  it  was  held  that  an 
enlisted  man  of  the  Marine  Corps  may  lawfully 
be  paid  travel  allowance  on  discharge  only  at 
the  rate  authorized  by  laws  in  effect  on  date  of 
discharge,  notwithstanding  the  fact  that  the 
law  in  force  at  the  time  of  his  enlistment  au- 
thorized pajonent  of  such  allowance  at  a  higher 
rate;  ancfin  23  Comp.  Dec,  33,  it  was  held  that 
enlisted  men  of  the  Army  must  be  demoted  in 
rank  when  required  by  laws  reorganizing  the 
Army  in  order  to  comply  with  the  pro\'isions 
of  such  laws  reducing  the  number  of  men  in  the 
higher  rank,  notwithstanding  that  they  are 
de8er\ing  men  and  that  their  demotion  is  not 
believed  by  the  War  Department  to  be  within 
the  spirit  of  the  new  law.] 

Extension  of  enlistments  in  Marine 
Corps.— The  act  of  August  22,  1912  (37  Stat., 
331),  authorizing  enlisted  men  of  the  Navy, 
by  their  voluntary  agreement,  to  extend  their 
enlistmentsforaperiodofone,  two,  three,  or  four 
years  "from  the  date  of  expiration  of  the  then 
existing  four-year  term  of  enlistment,"  applies 
to  the  Marine  Corps  by  virtue  of  section  1621, 
Revised  Statutes,  which  makes  the  Marine 
Corps  subject  to  the  laws  established  for  the 
government  of  the  Navy;  and  the  Supreme 
Court  decision  in  the  case  of  Wilkes  v.  Dins- 
man  (7  How.,  88),  in  which  it  was  held  that  the 
law  now  embodied  in  section  1422,  Re\'ised 
Statutes,  authorizing  the  detention  of  persons 
enlisted  for  the  Navy  after  the  expiration  of 
their  enlistment  under  certain  conditions,  au- 
thorized the  detention  of  enlisted  men  of  the 
Marine  Corps.  The  conclusion  in  this  case 
might  also  be  based  upon  the  naval  appropria- 
tion act  of  March  3,  1901  (31  Stat.,  1132),  pro- 
viding that  "hereafter  enlistments  into  the 
Marine  Corps  shall  be  for  a  period  of  not  less 
than  four  years."  In  the  absence  of  a  law  ex- 
pressly providing  for  the  extension  of  enlist- 
ments in  the  Navy  and  made  applicable  to  the 


Marine  Corps  by  section  1621,  Revised  Stat- 
utes, it  might  well  be  argued  that  the  extension 
of  enlistments  in  the  Marine  Corps  by  voluntary 
agreement  of  the  man  concerned  would  be 
authorized  under  the  foregoing  enactment  of 
1901,  which  does  not  fix  any  maximum  term  of 
enlistment.  (File  26507-214:8,  Apr.  5, 1915;  23 
Comp.  Dec,  349;  compare  23  Comp.  Dec,  22; 
see  also  act  Apr.  25,  1917,  40  Stac.  88,  au- 
thorizing extension  of  minority  enlistments 
in  the  Marine  Corps.) 

Minors  over  18  may  be  enlisted  without 
consent  of  parents  or  guardians. — Under 
the  act  of  Congress  of  March  2,  1837,  section  1 
(5  Stat.,  153)  [afterwards  embodied  in  sections 
1418  and  1419,  Revised  Statutes],  a  minor  of 
the  age  of  18  can  enlist  in  the  Navy  without  the 
consent  of  his  parents  or  guardian.  (Rush  v. 
Watson,  28  Fed.  Cas.  No.  16650a.) 

The  enlistment  of  minors  in  the  naval  service 
above  the  age  of  18  is  valid,  without  the  con- 
sent of  the  parents  or  guardian.  (12  Op.  Atty. 
Gen.,  2.58.) 

The  period  at  which  persons  reach  their 
majority  and  become  sui  juris  with  respect  to 
the  ordinary  affairs  of  life  can  not  abridge  the 
power  of  the  General  GoA^ernment  to  prescribe 
the  rules  and  conditions  under  which  volun- 
tary or  compulsory  services  are  to  be  rendered 
by  citizens.     (21  Op.  Atty.  Gen.,  327.) 

The  phrase  "other  persons"  in  the  act  of 
March  2,  1837  [section  1418,  Revised  Statutes], 
includes  minors  above  18,  as  well  as  men  of  full 
age.     (21  Op.  Atty.  Gen.,  327.) 

The  enlistment  of  minors  in  the  naval  serv- 
ice is  lawful  and  can  not  be  set  aside  at  the 
instance  of  their  parents,  except  in  so  far  as 
such  enlistments  are  forbidden  by  Congress. 
(In  re  Dovle,  18  Fed.  Rep.,  369,  citing  U.  S.  v. 
Bainbridge,  1  Mas.,  71  [Fed.  Cas.  No.  14497];  In 
re  Roberts,  2  Hall,  L.  J.,  192;  Com.  v.  Barker,  5 
Bin.,  423;  Ex  parte  Browne,  5  Cranch,  C.  C., 
554  [Fed.  Cas.  No.  1972].) 

Neither  section  1419,  Revised  Statutes,  nor 
any  other  law  requires  the  consent  of  parents 
and  guardians  for  the  enlistment  of  minors  over 
18  in  the  Navy.  It  is  clear  t;hat  Congress  has 
authorized  the  enlistment  in  the  Navy  of 
minors  over  18,  and  that  the  consent  of  parents 
and  guardians  is  not  necessary  to  make  the  en- 
listment valid.     (21  Op.  Atty.  Gen.,  327.) 

If  a  statute  authorizes  a  minor  by  enlistment 
to  bind  himself  during  his  minority,  he  can 
bind  hinself  for  a  further  period.  (21  Op. 
Attv.  Gen.,  327.) 

Under  sections  1418,  1419,  and  1624  (art.  19), 
ReAdsed  Statutes,  relating  to  enlistments  in 
the  Navy,  which  prohibited  the  enlistment  of 
boys  under  the  age  of  16  [now  14],  but  per- 
mitted the  enlistment  of  boys  between  the  ages 
of  16  and  18  [now  14  and  18]  Avith  the  consent 
of  their  parents  or  guardian  until  they  shall 
arriA^e  at  the  age  of  21,  and  proAdded  for  the 
enlistment  of  "other  persons"  for  terms  not 
exceeding  fiA^e  years,  the  consent  of  the  parents 
or  guardian  of  a  minor  over  the  age  of  18  is  not 
essential  to  his  valid  enlistment,^  and  he  can 
not  be  discharged  from  such  enlistment  by  a 
court  on  a  writ  of  habeas  corpus  at  suit  of  his 
parents  or  guardian.  (In  re  Norton,  98  Fed. 
Rep.,  606.) 


544 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1418. 


Section  1418  provides  that  boys  between  the 
ages  of  14  and  18  may  be  enlisted  to  serve  in 
the  Navy  until  they  shall  reach  21;  other  per- 
sons may  be  enlisted  to  serve  for  a  period  not 
exceeding  five  years,  etc.;  section  1419  pro- 
\T.des  that  minors  between  14  and  18  shall 
not  be  enlisted  without  the  consent  of  their 
parents  or  guardians;  section  1420  provides 
that  no  minor  under  the  age  of  14  shall  be  en- 
listed :  Held,  that  a  minor  between  the  ages  of 
18  and  21  may  be  enlisted  without  the  consent 
of  parents  or  guardian,  being  included  in  the 
term '  'other  persons ' '  in  sec tion  1418 .  (Thomas 
V.  Winne,  122  Fed.  Rep.,  395.) 

A  minor  who,  at  the  age  of  19,  with  the  con- 
sent of  his  father,  enlisted  in  the  Navy  has  not 
the  right,  on  coming  of  age,  to  demand  his  dis- 
charge under  the  rule  which  applies  to  hie 
ordinary  civil  contracts.  (21  Op.  Atty.  Gen., 
327,  further  holding  that  consent  of  parents  or 
guardian  is  not  necessary  to  enlistment  of 
minors  who  are  over  18.  Compare  Ex  parte 
Brown,  4  Fed.  Cas.  No.  1972.) 

For  other  cases,  see  note  to  section  761,  Re- 
vised Statutes. 

Minority  enlistments  in  Marine  Corps 
governed,  by  Navy  laws. — The  Marine  Corps 
is  part  of  the  United  States  naval  service, 
in  which  minora  over  18  years  of  age  may  be 
enlisted,  under  sections  1608  and  1418,  Re- 
vised Statutes,  without  the  consent  of  their 
parents  or  guardians.  The  limitations  of  sec- 
tions 1418  and  1419  undoubtedly  apply  to  en- 
listments in  the  Marine  Corps,  under  section 
1008;  but  these  limitations  do  not  aid  the  peti- 
tioner in  this  case,  since  the  only  restraint  is  in 
regard  to  enlistments  of  persons  under  the  age 
of  18  years,  while  Corporal  Doyle  in  the  present 
case  was  between  19  and  20  at  the  time  of  his 
enlistment.     (In  re  Doyle,  IS  Fed.  Rep.,  369.) 

The  restrictions  of  section  1117,  Revised 
Statutes,  apply  only  to  enlistments  in  the 
"Army"  under  Title  XIV.  (In  re  Doyle,  18 
Fed.  Rep.,  369.) 

The  Marine  Corps  is  not  an  independent 
organization,  but  is  a  part  of  the  Navy  rather 
than  of  the  Army;  and  sections  1418,  1419, 
Re\T.sed  Statutes,  which,  taken  together, 
authorize  the  enlistment  of  minors  over  18 
years  of  age  to  serve  in  the  Navy  without  the 
consent  of  their  parents  or  guardians,  apply  to 
enlistment  in  the  Marine  Corps  as  well;  so  that 
a  minor  who  has  enlisted  in  the  Marine  Corps 
when  over  18  years  of  age  will  not  be  discharged 
from  the  custody  of  the  officers  of  the  Marine 
Corps  in  habeas  corpus  proceedings  brought  by 
his  father.  (Elliott  v.  Harris,  24  App.  D.  C, 
11,  overruling  In  re  Shugrue,  3  Mackey  (D.  C.) 
325,  as  being  "in  manifest  conflict  with  the 
principle  upon  which  the  subsequent  case  of 
United  States  v.  Dunn  [120  U.  S.,  249]  was 
decided  by  the  Supreme  Court  of  the  United 
States.") 

The  Marine  Corps  of  the  United  States  is  not 
a  part  of  the  Navy,  and  enlistments  therein  are 
not  governed  by  the  statutes  relating  to  enlist- 
ments in  the  Navy,  but  by  regulations  pre- 
scribed by  the  Secretary  of  the  Navy,  under 
whose  government  and  control  such  corps  is 
primarily  placed;  and  such  officer  having  pre- 
scribed in  the  published  regulations  of  his  de- 
partment that ' '  the  regulations  for  the  recruit- 


ing service  of  the  Army  shall  be  applied  to  the 
recruiting  service  of  the  Marine  Corps  as  far  as 
practicable,"  the  enlistment  of  minors  therein 
is  governed  by  the  statutory  provisions  relating 
to  Army  enlistments  and  no  person  under  the 
age  of  21  years  can  lawfully  enlist  without  the 
consent  of  his  parents  or  guardian,  as  required 
by  Revised  Statutes,  section  1117.  (McCalla  v. 
Facer,  144  Fed.  Rep.,  61,  citing  and  following 
In  re  Shugrue,  3  Mackey  (D.  C),  324,  but  over- 
looking the  fact  that  the  case  cited  had  been 
overruled  by  the  Court  of  Appeals  of  the  Dis- 
trict of  Columbia  in  Elliott  v.  Harris,  24  App. 
D.  C,  11.) 

For  other  cases,  see  note  to  section  1621,  Re- 
vised Statutes,  covering  status  of  Marine  Corps; 
see  also  notes  to  sections  761  and  1422,  Revised 
Statutes. 

Policy  of  Congress  to  encourage  enlist- 
ment of  minors.— The  law  [March  1,  1889,  25 
Stat.,  781]  providing  clothing  bounty  on  en- 
listment, did  not  intend  that  the  Secretary  of 
the  Navy  should  have  such  discretionary  power 
with  respect  to  furnishing  the  bounty  as  would 
enable  him  to  furnish  it  in  one  case  and  in 
a.nother  case  decline  to  furnish  it;  but  should  be 
construed  as  imposing  upon  the  Secretary  of  the 
Navy  an  imperative  obligation  and  not  merely 
discretionary  power.  The  whole  purpose  of 
the  act  is  to  "encourage  the  enlistment  of  boys 
as  apprentices  in  the  U.  S.  Navy,"  and  upon 
the  Secretary  of  the  Navy  is  imposed  the  duty 
of  executing  the  provisions  of  the  statute.  (25 
Op.  Atty.  Gen.,  270.) 

Certificate  required  prior  to  enlistment 
of  minor. — WTiere  an  applicant  is  "obviously" 
beyond  18  years  of  age,  a  written  statement  of 
the  medical  officer  of  the  recruiting  party  to 
that  effect  should  be  accepted  in  lieu  of  the 
certificate  required  by  the  act  of  June  29,  1906. 
(File  1689-5,  Aug.  25,  1906.  The  act  cited 
prohibited  enlistment  of  any  applicant  "unless 
a  certificate  of  biith  or  written  evidence,  other 
than  his  own  statement,  satisfactory  to  the  re- 
cruiting officer,  showing  the  applicant  to  be 
of  age  required  by  naval  regulations,  shall  be 
presented  with  the  application  for  enlistment." 
The  present  law  is  contained  in  the  act  of  Mar. 
3,  1915,  noted  above,  under  this  section.) 

Minor  is  "enlisted  man." — A  minor  en- 
listed in  the  Navy  din-ing  the  period  of  his 
minority  is  an  "enlisted  man"  in  the  Navy 
within  the  meaning  of  the  act  of  August  22, 
1912  (37  Stat.,  330),  providing  for  the  discharge 
of  any  enlisted  man  within  three  months  prior 
to  expiration  of  enlistment.  (20  Comp.  Dec, 
429.) 

The  statute  in  making  provision  for  the 
enlistment  of  persona  under  age,  makes  it 
competent  for  any  such  person  to  bind  himself 
by  enlisting  and  in  respect  to  that  contract  or 
enlistment  he  is  to  be  regarded  as  an  adult  and 
competent  to  do  all  acts  within  the  purview  of 
the  statute  aa  fully  as  if  he  were  a  person  of  full 
age.  It  has  been  decided  that  an  enlisted  man 
haa  a  right  to  make  an  agreement  with  the 
Government  waiving  his  claim  to  travel  allow- 
ance on  discharge,  when  that  contract  ia  made 
at  the  time  he  ia  about  to  be  discharged  (citing 
Comp.  Dec,  Oct.  8,  1901,  MS.  Dec,  vol.  19, 
p.  70).  If  the  claimant  is  to  be  regarded  as  of 
full  age  in  dealing  with  all  matters  connected 


645 


Sec.  1418. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


with  his  enlistment,  and  an  adult  can  waive 
his  right  to  travel  allowance,  it  follows  that  he 
can  do  so.  The  power  to  enlist  being  conferred, 
all  the  incidental  powers  necessarily  belonging 
to  a  person  in  that  situation  with  reference  to 
his  enlistment  naturally  follow.  (9  Comp. 
Dec,  5.) 

"Apprentice  seamen  may  be  enlisted  be- 
tween the  ages  of  17  and  25.  Those  below  18 
are  enlisted  during  minority,  or  until  they 
become  21  years  of  age.  Those  18  years  of 
age  or  over  are  enlisted  for  four  years.  There 
are  several  other  rates  in  which  those  aa  young 
as  18  may  be  enlisted.  (Navy  Regs.,  1913,  art. 
R-3525.)  ^Tien  enlisted  apprentice  .seamen 
are  sent  to  training  stations  where  they  are 
given  a  special  course  of  instruction,  at  the 
termination  of  which  they  are  transferred  to 
and  become  a  part  of  the  regular  complements 
of  cruising  vessels  in  the  Navy,  and  may  be 
promoted  to  higher  ratings.  No  distinction 
on  account  of  duties  or  pay  is  made  between 
the  apprentice  seamen  who  enlist  during  mi- 
nority and  those  who  enlist  for  four  years, 
nor  is  any  such  distinction  made  on  account  of 
their  being  under  or  over  21  years  of  age." 
(20  Comp.  Dec,  409.) 

"The  phrase,  'enlisted  men,'  has  generally 
been  used  and  understood  to  mean  all  those 
who  enlist  in  the  Navy,  whether  under  or  over 
21  years  of  age,  as  distinguished  from  the 
officers  who  are  appointed  or  commissioned. 
In  other  words,  the  entire  enlisted  force  in  the 
Navy  are  generally  referred  to  and  described 
as  enlisted  men."     (20  Comp.  Dec,  409.) 

The  enlistment  in  the  Navy  of  boys  between 
14  and  18  years  of  age  until  they  shall  arrive 
at  the  age  of  21  years  is  provided  for  by  section 
1418,  Revised  Statutes,  as  amended  by  the  act 
of  J'ebruary  23,  1881  (21  Stat.,  338).  In  any 
case  when  an  apprentice  seaman  is  discharged 
on  account  of  expiration  of  his  enlistment,  he 
is  21  years  of  age,  a  man  in  the  strict  legal 
sense;  [but  see  act  Aug.  22,  1912,  37  Stat.,  330, 
relative  to  discharge  of  men  three  months  be- 
fore expiration  of  term  for  which  enlisted];  he 
therefore  comes  within  the  law  of  June  29, 
1906  (34  Stat.,  553,  555),  providing  that  "here- 
after enlisted  men  discharged  on  account  of 
expiration  of  enlistment,  shall  receive  in  lieu 
of  transportation  and  subsistence  travel  allow- 
ance of  four  cents  per  mile  from  the  place  of 
discharge  to  the  place  of  enlistment,  for  travel 
in  the  United  States;"  and  also  within  the 
meaning  of  the  annual  appropriation  for  travel 
allowance  of  "enlisted  men"  discharged  on 
account  of  expiration  of  enlistment,  although 
other  appropriations  make  provision  for  trans- 
portation of  "enlisted  men  and  apprentice  sea- 
men," mentioning  them  as  if  they  were  of 
separate  classes.  Apprentice  seamen  may  be 
mentioned  in  the  other  items  of  the  trans- 
portation appropriation  because  they  are  trans- 
ported before  they  are  21  years  of  age,  and  may 
also  be  discharged  "on  medical  survey"  be- 
fore they  arrive  at  that  age.  (19  Comp.  Dec, 
591.) 

A  minor  who  enlists  in  the  Navy  is  compe- 
tent to  designate  a  beneficiary  under  the  act  of 
May  13,  1908  (35  Stat.,  128)  [since  amended  by 
act  of  Aug.  22,  1912,  37  Stat.,  329,  and  acts  of 
Oct.  6,  1917,  40  Stat.,  392,  and  Oct.  0, 1917,  sec. 


312,  40  Stat.,  408],  and  amount  of  death  gra- 
tuity in  his  case  should  be  paid  to  beneficiary 
in  accordance  with  such  designation.  (File 
26543-38.) 

Minors  enlisting  with  consent  of  parents  or 
guardians  have  the  same  right  to  make  agree- 
ment to  reenlist  or  waiving  transportation  as 
other  enlisted  men,  notwithstanding  a  request 
to  the  contrary  made  by  the  guardian  in  any 
case.     (File  4682-04,  May  31,  1904.) 

A  minor  may  be  tried  by  general  court-mar- 
tial without  the  appointment  of  a  guardian  ad 
litem  to  defend  him.  This  is  in  accordance 
with  decisions  of  the  civil  courts  under  which 
a  minor  is  amenable  for  crime  and  pleads  with- 
out intervention  and  must  suffer  the  penalty 
when  found  guilty.  "A  minor  is  tried  like  an 
adult.  He  may  defend  personally  or  by  at- 
torney and  no  guardian  ad  litem  is  to  be  ap- 
pointed or  appear  for  him;"  although  in  one 
State,  by  statute,  his  defense  is  by  guardian. 
In  some  decisions  it  has  been  expressly  held 
that  to  defend  in  person  or  by  attorney  is  the 
right  of  the  minor,  and  that  it  is  error  to  assign 
him  a  guardian  and  try  the  case  upon  a  plea 
pleaded  for  him  by  the  guardian.  (File 
26251-6020,  July  7,  1913;  G.  C.  M.  Rec  No. 
25157.) 

When  enlistment  complete. — ^Vhere  man 
signed  shipping  articles  one  day  but  did  not 
take  the  oath  of  allegiance  until  the  next,  held, 
that  while  section  25  of  the  Navy  personnel 
act  of  March  3, 1899  (30  Stat.,  1009),  requires  an 
oath  of  allegiance  to  be  taken,  there  appears 
to  be  no  provision  of  law  that  postpones  the 
taking  effect  of  an  enlistment  until  such  oath- 
is  taken;  said  man  should,  accordingly,  be 
taken  up  for  pay  and  rations  from  the  date  he 
signed  the  shipping  articles,  which  is  regarded 
as  the  date  of  his  enlistment ;  oath  of  allegiance 
should  be  executed  as  of  the  date  on  which  it 
is  taken.     (File  1096,  Mar.  30,  1905.) 

Men  who  applied  for  enlistment  in  the  Marine 
Corps  were  examined  and  accepted  at  Denver, 
Colo.,  but  took  the  oath  of  allegiance  at  Salt 
Lake  City,  Utah;  held,  that  they  were  enlisted 
at  Denver  within  the  meaning  of  the  law  allow- 
ing mileage  on  discharge  to  place  of  enlist- 
ment. (File  7657-94,  Dec.  31,  1910,  constru- 
ing act  Mar.  2,  1901,  31  Stat.,  902.) 

The  Comptroller  of  the  Treasury  decided, 
in  accordance  with  the  rulings  of  the  Navy 
Department,  that  an  enlisted  man  is  entitled 
to  pay  from  the  date  he  presents  liimself  for 
service  in  the  Marine  Corps,  signs  the  prescribed 
application,  and  submits  to  and  passes  a  medical 
examination,  although  he  does  not  take  the 
oath  of  allegiance  untU  a  later  date  and  in  a 
different  city.  (Comp.  Dec,  Mar.  8,  1911, 
file  7657-94:2,  17  Comp.  Dec.  656, 121  S.  and  A. 
Memo.,  1696;  see  also  Comp.  Dec,  Mar.  4, 
1911,  file  26254-659.) 

It  has  been  specifically  decided  by  the  Navy 
Department,  the  War  Department,  and  the 
Comptroller  of  the  Treasury  that  the  taking  of 
the  oath  of  allegiance  is  not  essential  to  the 
vaHdity  of  an  enlistment.  (File  19037-58, 
Apr.  6,  1917.) 

A  man  who  signed  the  shipping  articles,  was 
fiu-uished  and  accepted  transportation  from 
Raleigh  to  Norfolk,  was  passed  by  the  medical 
officer,  was  furnished  subsistence  and  clothing 


546 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1418. 


outfit,  and  was  actually  assigned  to  duty,  is 
legally  and  for  all  purposes  an  enlisted  man  in 
the  Navy  in  all  respects,  notwithstanding  that 
he  has  refused  to  take  the  oath  of  allegiance. 
Inasmuch  as  the  law  (act  Mar.  3,  1899,  sec.  25, 
30  Stat.,  1009),  expressly  states  that  the  oath  of 
allegiance  "shall "  be  administered  "to  the  offi- 
cers and  men  of  the  Navy,"  should  the  man  in 
question  be  ordered  to  take  the  oath  and  then 
refuse  to  do  so,  appropriate  disciplinary  action 
might  be  taken  against  him  for  refusing  to  obey 
the  lawful  order  of  his  superior.  (File  19037-58, 
Apr.  6,  1917.) 

A  man  was  honorably  discharged,  January  4, 
1905;  applied  for  reenlistment,  January  5,  1905; 
was  reported  physically  disqualified;  remained 
on  the  vessel  awaiting  action  of  the  Navy 
Department;  his  physical  disability  having 
been  waived,  was  reenlisted  as  of  January  5, 
1905,  but  executed  the  oath  of  allegiance 
January  16,  1905,  date  the  waiver  was  received 
on  board:  Held,  that  he  was  properly  re- 
enlisted  as  of  January  5,  1905,  and  is  entitled 
to  pay  and  rations  from  that  date,  provided  he 
was  actually  held  to  service  from  that  date. 
(File  1096,  Mar.  30,  1905.) 

If  the  man  was  actually  held  to  service  while 
his  physical  condition  was  under  considera- 
tion, he  may  be  said  to  have  been  conditionally 
accepted  and  is  entitled  to  pay  for  such  service. 
The  fact  that  the  man  in  such  a  case  was  ac- 
cepted for  service  during  the  period  awaiting 
action  should  be  made  to  appear  by  the  certifi- 
cate of  the  proper  commanding  officer  before 
payment  is  made.  (Comp.  Dec,  June  25, 1902, 
5  S.  and  A.  Memo.,  65;  see  also  file  1096,  Mar. 
30,  1905.) 

It  is  a  rule  that  an  enlistment  paper  can  not 
be  dated  back  so  as  to  cover  a  period  when  the 
person  was  not  actually  in  the  service ;  he  must 
be  actually  accepted  for  service;  in  which  event 
his  enlistment  paper  may  be  dated  back  to  cover 
the  period  of  such  service  if  it  was  not  made  out 
at  the  time  the  party  was  so  accepted.  (Comp. 
Dec,  June  25,  1902,  5  S.  and  A.  Memo.,  65; 
see  also  file  1096,  Mar.  30,  1905.) 

Plaintiff  signed  an  agreement  "to  serve  for 
a  period  of  three  years  from  the  date  of  *  *  * 
being  mustered  into  the  United  States  service." 
Plaintiff  then  refused  to  go  to  camp,  was 
arrested,  taken  to  camp  of  rendezvous,  and,  by 
order  of  the  commander,  confined  for  several 
days.  On  release,  brought  suit  for  damages: 
Held,  the  words  "enlist"  and  "enlistment" 
in  the  law,  as  in  common  usage,  may  signify 
either  the  completed  fact  of  entering  into  the 
military  service  or  the  first  step  taken  by  the 
recruit  toward  that  end .  The  present  question 
is  not  one  of  breach  of  contract  but  change  of 
status.  The  plaintiff  was  not  a  soldier,  nor 
subject  to  any  military  authority  or  discipline 
as  such.  The  statutes  seem  to  assume  the 
mustering  of  a  recruit  into  the  service  as  the 
point  at  which  the  right  to  exercise  military 
restraint  over  him  begins.  The  court  is  not, 
however,  prepared  to  say  that  actual  submis- 
sion as  a  soldier  to  a  commissioned  officer 
would  not  of  itself  be  sufficient;  still  less,  that 
a  recruit  of  full  age  who  had  actually  served 
or  received  money  from  the  Government  could 
be  allowed  to  dispute  legality  of  the  enlist- 


ment. But  the  mere  promise  to  serve  from  a 
future  date,  to  be  fixed  only  by  performance  of 
a  distinct  act,  is  not  sufficient  to  change  state 
of  a  citizen  into  that  of  a  soldier.  (Tyler  v. 
Pomeroy,  8  Allen  (90  Mass.)  480.) 

A  seaman  who  had  been  examined  by  a  sur- 
geon and  passed  through  all  the  necessary 
steps  at  a  naval  rendezvous,  signing  shipping 
articles,  and  received  orders  to  go  on  board  re- 
ceiving ship,  but  who,  on  reaching  receiving 
ship  was  found  to  be  intoxicated  and  sent 
away  until  he  should  become  sober,  and  who, 
before  returning,  was  enticed  away  by  the 
defendant,  held,  not  to  be  an  "enlisted  sea- 
man" because  he  had  done  no  duty,  been  paid 
no  money,  and  was  not  entitled  by  the  regu- 
lations to  any  pay  until  passed  on  the  receiv- 
ing ship.  (United  States  v.  Thompson,  28 
Fed.  Cas.  No.  16491.) 

Man  applied  for  enlistment  in  the  Marine 
Corps,  and  after  signing  declaration  and  under- 
going medical  examination,  failed  to  report  to 
complete  enlistment,  but  enlisted  in  the  Navy. 
Upon  report  of  the  facts  to  the  Navy  Depart- 
ment, held,  tnat  the  man  would  be  retained 
under  his  enlistment  in  the  Navy,  as  it  other- 
wise appeared  that  he  was  a  desirable  person, 
and  that  no  action  would  be  taken  to  recover 
from  him  the  cost  of  his  medical  examination 
for  the  Marine  Corps.     (File  7657-58.) 

Recruits  detained  at  the  place  of  recruiting, 
if  said  place  is  not  a  "naval  station"  within 
the  meaning  of  the  act  of  January  30,  1885  (23 
Stat.,  291),  (authorizing  rations  or  commuta- 
tion thereof  for  enlisted  men),  are  entitled  to 
be  subsisted  from  the  appropriation  "Provi- 
sions, Navy,"  provided  they  actually  enlisted 
and  became  in  fact  enlisted  men  of  the  Navy 
at  such  place.  If  their  enlistments  are  not 
completed  at  the  place  of  recruiting,  or  if  they 
are  only  held  together  tentatively  as  enrolled 
persons  applying  to  enter  the  naval  service, 
they  may  be  furnished  subsistence  from  appro- 
priation "Transportation,  recruiting,  and  con- 
tingent." (7  Comp.  Dec,  408.)  Under  this 
decision,  applicants  for  enlistment  who  have 
passed  the  physical  and  other  examinations 
and  are  held  together  at  substations  awaiting 
the  arrival  of  the  recruiting  officer  to  adminis- 
ter the  oath  and  complete  their  enlistment,  are 
entitjed  to  be  subsisted  from  the  appropriation 
"  Recruiting,  Na-\dgation."  (Comp.  Dec,  Aug„ 
30,  1904,  43  S.  and  A.  Memo.,  419.) 

Certain  applicants  signed  papers  agreeing  to 
enlist  in  the  Marine  Corps,  and  without  being 
accepted  were  transported  to  other  cities  for 
the  purpose  of  being  examined  to  determine 
their  fitness.  Upon  arrival  it  was  discovered 
that  the  applicants  had  concealed  former 
ser\'ice  in  and  dishonorable  discharge  from  the 
Navy.  Without  being  enlisted,  they  were 
confined  by  the  commanding  officer,  for 
varying  periods,  approximately  two  months 
in  one  case,  with  a  view  to  causing  their  arrest 
by  the  civil  authorities  for  fraudulently  ob- 
taining Government  transportation,  subsist- 
ence, etc.  Held,  that  the  men  in  question 
were  civilians,  and  their  confinement  by 
officers  of  the  Marine  Corps  was  without  legal 
authority  or  justification,  and  might  expose 
such  officers  to  prosecution,  both  civilly  and 


547 


Sec.  1419. 


Pi.  2.  REVISED  STATUTES. 


The  Navy. 


criminally,  for  false  imprisonment.  (File 
7G57-180,  June  4,  1913,  quoting  U.  S.  v. 
Travers,  28  Fed.  Cas.  No.  16537,  noted  under 
Constitution,  Art  I,  eec.  8,  clause  14,  "IV. 
Jurisdiction  of  Courts-Martial."  Followed  file 
28909-191,  Jan.  21,  1919.) 

"In  order  to  become  a  soldier  of  the  United 
States  Army — i.  e.,  in  order  to  become  a  fully 
enlisted  man — the  party  must  first  enlist  by 
signing  the  prescribed  application,  and  he 
must  then  be  accepted  and  sworn  into  the 
service  by  the  proper  officer."  (Coe  v.  U.  S., 
44  Ct.  Cls.,  419,  427;  Union  Pac.  R.  Co.  v.  U.  S., 
52Ct.  Cls.  226.) 

Applicants  for  enlistment  are  in  no  way 
connected  with  the  military  organization  or 
any  movement  of  the  same,  and  may  never 
become  so.  _  Such  persons  have  not  changed 
their  status  in  life  from  that  of  ordinary  citizens 
to  that  of  a  soldier  and  are  not  amenable  to 
military  jurisdiction.  They  are  not  members 
of  the  military  organization  and  therefore  are 
not  included  within  the  term  "troops  of  the 
United  States."  (Union  Pac.  R.  Co.  v.  U.  S., 
52  Ct.  Cls.,  226;  249  U.  S.,  354.) 

De  facto  enlistment. — See  note  to  section 
1426,  Revised  Statutes,  under  "Honorable 
discharge  of  de  facto  enlisted  man."  See  also 
cases  noted  above,  under  "Detention  of  men 
after  expiration  of  enlistment." 

Errors  in  enlistment. — Where  a  minor  over 
18  years  of  age  was  enlisted  to  serve  during 
nainority,  contrary  to  the  provisions  of  article 
931,  Navy  Regulations,  1905,  and  declined  to 
have  the  error  in  his  enlistment  corrected,  he 
should  be  discharged  on  account  of  illegal  enlist- 
ment. (File  5731,  Sept.  14, 1906;  compare  file 
24368-7,  Feb.  14,  1912,  noted  under  sec.  1419, 
R.  S.,  "Consent  required  for  enlistment.") 

A  recruit  at  time  of  enlistment  gave  his 
date  of  birth  as  January  9,  1879,  making  his 
age  18  years.  In  three  subsequent  enlist- 
ments he  renewed  his  former  statement  as  to 
his  date  of  birth,  verifying  same  by  oath  on 
each  occasion.  Thereafter,  while  serving  as  a 
warrant  officer,  he  reported  to  the  Navy  De- 
partment that  his  correct  date  of  birth  was 
January  9,  1881;  that  he  had  only  a  short  time 
previously  discovered  this;  and  inclosed  an 
affidavit  purporting  to  be  signed  by  his  mother 
in  support  of  his  statements.  Held,  that 
while  a  person's  statement  as  to  his  age  is  neces- 
sarily hearsay  evidence,  it  is  universally 
admitted  by  the  courts  as  competent.  Never- 
theless, such  hearsay  evidence  is  not  con- 
clusive, and  the  testimony  of  one's  mother, 
substantiated,  as  in  this  case,  by  an  apparently 
bona  tide  entry  in  the  family  Bible,  would 
certainly  appear  to  be  better  evidence.  The 
credibility  of  the  new  evidence,  however,  is 
a  matter  which  should  be  carefully  considered, 
especially  as  it  is  not  incumbent  upon  the 
department  to  decide  the  question  and  change 
its  official  records  in  the  absence  of  good  reasons, 
which  should  be  made  to  appear.     Accordingly, 


the  officer  should  be  required  to  give  liia 
reasons  for  desiring  the  department's  records 
changed,  and  ex])lain  why  he  did  not,  previous 
to  his  enlistments,  obtain  from  his  mother  the 
date  of  his  birth,  or  consult  the  family  Bible. 
His  reasons  and  explanations  would  in  all 
probability  assist  in  determining  the  credi- 
bility of  his  evidence,  and  enable  the  depart- 
ment to  take  such  action  in  the  premises  as 
might  appear  just  and  desirable.  (File  24368- 
9,  Nov.  22,  1913.) 

Man  applied  for  enlistment  in  the  Navy,  but 
did  not  sign  the  shipping  articles;  no  shipping 
articles  were  ever  made  out  for  him;  the  offi- 
cer supposed  to  have  enlisted  him  did  not 
sign  the  service  record  in  his  case;  he  reported 
for  duty,  served  as  a  machinist's  mate  second 
class,  and  presumably  received  pay  and  allow- 
ances as  such;  he  now  desires  to  be  released 
from  the  service:  Held,  that  the  error  in  this 
case  was  the  error  of  the  Government  and  not 
the  error,  mistake  or  fraud  of  the  man;  that 
the  most  which  can  be  held  is  that  he  enlisted 
in  the  Navy  upon  an  implied  contract  of  en- 
listment but  for  no  definite  period  and  if  he 
now  refuses  to  execute  a  formal  contract  and 
demands  his  release,  and  there  are  no  charges 
pending  against  him,  and  he  is  not  being  held 
under  sentence  of  court-martial,  he  should 
forthwith  be  discharged.  (File  7657-882,  May 
2,  1919.) 

A  recruit  over  18  years  enlisted  for  minority, 
giving  erroneous  date  of  birth.  He  reenlisted, 
giving  correct  date  of  birth,  substantiated  by 
a  birth  certificate.  Held,  that  the  original 
enlistment  was  illegal,  it  being  required  by 
law  and  regulations  that  persons  18  years  of 
age  or  over  be  enlisted  for  a  term  of  four  years. 
Held  further,  that  while  original  enlistment 
was  illegal,  it  was  voidable  only,  and  not  void, 
and  having  been  fully  executed  and  terminated 
by  an  honorable  discharge,  the  man  is  entitled 
to  all  the  benefits  thereof  as  if  it  had  been  a 
legal  and  valid  contract.  (File  7657-360,  May 
9,  1916.) 

Where  a  minor  signed  a  contract  of  enlistment 
reading,  "I  oblige  and  subject  myself  to  serve 
during  minority,  until  January  1,  1915,"  the 
legal  effect  of  the  contract  was  to  bind  him  to 
serve  until  he  arrived  at  the  age  of  21  years, 
which  the  evidence  in  this  case  shows  would  be 
January  1,  1916.  The  date  on  which  he  would 
attain  his  majority,  given  in  the  contract  of 
enlistment  and  consent  of  parents  as  January  1, 
1915,  must  be  rejected  as  an  error  in  com- 
putation. Since  the  man  stated  that  he  was 
informed  by  the  recruiting  officer  that  his 
enlistment  would  expire  January  1,  1915, 
wliich  statement  is  confirmed  by  the  date  given 
in  the  shipping  articles,  it  would  be  proper 
to  ^ve  him  his  discharge  at  once,  but  if  he 
desires  the  benefits  of  a  discharge  by  reason  of 
expiration  of  enlistment,  he  would  have  to  serve 
until  Januarv  1,  1916.  (File  7657-273,  Jan.  16, 
1915;  C.  M.  O.  6,  1915,  p.  11.) 


Sec.  1419.  [Enlistment,  minors,  consent  of  parents  and  guardians.]  Minors 
between  the  ages  of  fourteen  and  eighteen  years  shall  not  be  enlisted  for  the 
naval  service  without  the  consent  of  their  parents  or  guardians. 


548 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1419. 


This  section  was  expressly  amended  and  re- 
enacted  to  read  as  above  by  act  of  May  12, 
1879  (21  Stat.,  3),  as  amended  by  act  of 
February  23,  1881,  section  2  (21  Stat.,  338), 
the  amendment  made  by  the  latter  act  con- 
sisting in  substituting  the  word  "  fomteen  " 
for  "  fifteen  "  as  used  in  the  former  act. 
As  originally  enacted  this  section  read  as  fol- 
lows: "Sec.  1419.  Minors  between  the  age 
of  sixteen  and  eighteen  years  shall  not  be 
enlisted  for  tlie  naval  servdce  without  the 
consent  of  their   parents  or  guardians." 
[See    section    1624;  article    19.] — (2  Mar., 
1837,  0.  21,  s.  1,  V.  5,  p.  153.     3  Mar.,  1865, 
c.  79,  s.  18,  V.  13,  p.  490.) 
The  discharge  of  minors  who  swear  falsely  as 
to  their  age  is  required  by  act  of  March  3, 
1915,  noted  imder  section  1418,   Revised 
Statutes. 
The  pimishment  for  fraudulent  enlistment  is 
prescribed  by  act  of  March  3, 1893  (27  Stat., 
716),  amending  section  1624,  Revised  Stat- 
utes, article  22. 
The  punishment  of  officers  who  knowingly  en- 
list "any  minor  between  the  ages  of  four- 
teen and  eighteen  years  without  the  con- 
sent of  his  parents  or  guardian,   or  any 
minor  under  the  age  of  fourteen  years,"  is 
prescribed  by  section  1624,  Revised  Stat- 
utes, article  19,  as  amended. 
"The  register  of  wills  [of  the  District  of  Colum- 
bia] shall   prepare  papers  in   connection 
with  appointment  of  guardians  to  enable 
indigent  boys  to  enlist  in  the  United  States 
Navy  as  provided  by  law,  without  making 
any  charge  therefor."     (Act  Mar.  3,  1891, 
26  Stat.,  10G3.) 
Consent  required  for  enlistment. — The 
consent  of  the  mother  would  not  be  a  sufficient 
compliance  with   the    terms    of  this  section 
where  the  father  is  living,  although  it  is  claimed 
that  the  father  is  working  in  a  remote  part  of 
the  State  where  he  can  not  be  reached  by  mail, 
and  that  he  would  undoubtedly  consent  to  the 
enlistment  if  consulted.     (File  7657-293,  Jime 
19,  1915.) 

"The  consent  of  the  father  is  necessary  ex- 
cept where  the  mother  or  other  person  is  the 
legal  guardian  of  such  minor."  (File  7657-293, 
June  19,  1915.) 

Where  the  father  and  mother  of  a  minor,  17 
years  of  age,  are  both  dead,  and  no  legal  guar- 
dian has  been  appointed,  held  that  neither  the 
stepmother  nor  sister  of  said  minor  could 
legally  consent  to  his  enlistment  unless  first 
legally  appointed  as  guardian.  (File  7657- 
293:3,  Aug.  21,  1915.) 

Where  the  applicant's  father  and  mother  are 
both  living,  but  the  father  has  deserted  his 
wife  and  is  not  contributing  to  the  child's  sup- 
port, held,  that  the  consent  of  the  mother,  who 
has  not  legally  been  appointed  guardian  of 
the  applicant,  can  not  be  accepted  as  sufficient, 
but  that  upon  the  facts  stated  the  consent  must 
be  signed  by  the  father.  (File  7657-293:3, 
Aug.  21,  1915.) 

"If  the  recruiting  servdce  is  embarrassed  by 
the  requirements  as  to  consent  in  the  cases  of 
minors,  the  remedy  must  be  sought  in  an 
amendment  of  the  statutes  by  Congress,  as 
such  considerations  can  not  justify  administra- 
tive officers  in  departing  from  the  plain  lan- 


guage of  the  law  as  it  exists.  In  other  words, 
the  settled  maxim  that  it  is  the  province  of 
courts  to  construe  laws  and  not  to  make  them 
applies  to  the  fullest  extent  to  the  action  of 
executive  officers."  (File  7657-293:1,  July  29, 
1915.) 

Where  a  minor  during  the  lifetime  of  hia 
father  had  a  guardian  appointed  to  sign  his  con- 
sent papers  upon  enlistment,  and  the  father 
demanded  the  boy's  release  on  the  groimd  that 
he  had  not  consented  to  the  enlistment,  held, 
that  the  Navy  Department  can  not  go  behind 
the  action  of  the  court  to  inquire  into  the 
legality  of  the  guardian's  appointment,  and 
that  the  enlistment  was  accordingly  valid. 
(File  3956,  Jan.  25,  1906;  see  also  file  7657-207, 
Nov.  7,  1913.) 

_  Minor  enlisted  in  the  Naw  ^Yith  consent  of 
his  father  after  his  mother  had  instituted  pro- 
ceedings against  the  father  for  divorce  and  care 
and  custody  of  the  minor  child.  Held,  that  en- 
listment was  illegal,  the  minor  being  under  the 
jurisdiction  of  the  court  pending  termination 
of  the  proceedings,  and  his  care  and  custody 
having  been  awarded  to  his  mother  two  weeks 
after  his  enlistment.  (File  9750-04,  Nov.  30, 
1904.)  _ 

A  minor  enlisted  in  the  Navy  for  ioMi  years 
when  15  years  old,  alleging  thathe  was  18  years 
old.  To  straighten  out  his  record  he  afterwards 
submitted  the  consent  of  his  father.  Question 
was  presented  whether  it  would  be  legal  to 
accept  the  e\idence  and  retain  the  minor 
under  his  foiu--year  enlistment  (there  being  no 
pro\dsion  of  law  for  the  enlistment  for  four  years 
of  any  one  under  18  years  of  age),  or  whether  it 
was  necessary  to  secure  the  agreement  of  the 
father  and  boy  for  the  latter  to  remain  in  the 
Ber\ice  during  minority.  Held,  that  enlistment 
was  a  validone  unless  avoided  by  the  United 
States,  and  it  would  therefore  be  legal  to  retain 
the  boy  under  his  four-vear  term  of  enlistment. 
(File  24368-7,  Feb.  14, 1912.  Compare  note  to 
sec.  1418,  R.  S.,  "Errorsin  enlistment.") 

A  minor  under  18  years,  father  and  mother 
both  dead,  enlisted  in  Na\y  for  minority  with 
consent  of  his  aunt,  who  made  oath  that  she 
was  the  sole  legal  guardian  of  the  recruit, 
although  in  fact  she  was  not  his  legally  appoint- 
ed guardian.  Thereafter,  the  minor's  brother- 
in-law  was  appointed  his  legal  guardian  and 
objected  to  his  "retention  in  the  service  be- 
cause of  under-age  enlistment."  Held,  that 
minor  should  be  discharged  ^vithout  prejudice 
to  his  right  to  reenlist  if  desired  when  he  at- 
tains the  required  age;  that  the  fact  that  the 
guardian  was  appointed  after  the  minor's  en- 
listment is  not  material,  the  enlistment  ha^■ing 
been  without  the  consent  required  by  section 
1419;  and  that,  the  recruit  not  ha\ing  sworn 
falsely  as  to  age,  it  does  not  appear  that  he  was 
guilty  of  fraud.  _  (File  7657-207,  Nov.  7,  1913.) 
This  same  holding  applies  in  a  case  where  the 
minor  swore  falsely  as  to  his  age  at  the  time  of 
enlistment,  except  perhaps  as  to  prejudice 
regarding  reenlistment.  (FUe  7657-559,  Feb. 
16,1918). 

A  minor  enlisted  Avith  the  consent  of  a  party 
who  made  oath  that  she  was  the  sole  legal  guar- 
dian of  the  recruit.  Thereafter,  another  party 
made  application  for  discharge  of  the  minor, 
forwarding  papers  showing  that  said  appHcant 


549 


Sec.  1419. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


was  appointed  as  guardian  for  the  minor  some 
months  after  his  enlistment.  Held,  that  the 
minor  should  not  be  discharged  upon  applica- 
tion of  a  guardian  appointed  after  hia  enlist- 
ment unless  satisfactory  evidence  is  produced 
to  establish  that  the  party  who  consented  to  his 
enlistment  was  not  his  legal  guardian  at  the 
date  of  said  enlistment.  (File  7657-332,  Dec. 
29,  1915.) 

To  satisfy  the  requirements  of  law,  the  con- 
sent of  the  father,  mother,  or  legal  guardian  of 
the  minor  must  be  furnished.  The  consent  of 
parent  or  guardian  may  be  executed  before  an 
officer  of  a  court  of  record  having  custody  of  its 
seal,  a  notary  public,  justice  of  the  peace,  or 
other  officer  authorized  to  administer  oaths  for 
general  purposes,  or  before  an  officer  of  the 
Navy  or  Marine  Corps  in  accordance  with  the 
act  of  March  3, 1901  [see  note  to  section  183,  Re- 
vised Statutes].  If  such  officer  (other  than  an 
officer  of  the  Navy  or  Marine  Corps)  is  not  re- 
quired by  law  to  have  and  use  a  seal,  his  official 
character,  signature,  and  term  of  office  should 
be  certified  by  the  proper  officer,  State,  county, 
or  city,  under  his  official  seal,  unless  such  cer- 
tificate has  already  been  filed  in  the  Navy 
Department  for  general  reference.  (File  2757-5, 
June  15,  1906.) 

The  consent  of  both  parents  is  not  neces- 
sary to  the  enlistment  of  a  minor  under  18  years 
of  age,  but  in  such  case  the  consent  of  the  father 
is  sufficient.  (File  26806-142,  Oct.  16, 
1916.) 

False  and  fraudulent  consent  papers 
executed  before  notary. — A  notary  pubKc 
may  be  prosecuted  for  violation  of  section  31  of 
the  Federal  Criminal  Code  (act  Mar.  4,  1909, 
35  Stat.,  1094)  where  he  permitted  an  applicant 
to  sign  in  his  presence  the  consent  papers  for 
his  enlistment  in  the  name  of  his  mother,  and 
then  falsely  certified  concerning  the  appearance 
of  the  mother  before  him.     (See  file  7657-299.) 

For  other  cases,  see  file  8205-2,  October  17, 
1907;  5954,  October  18,  1906;  file  7657-156, 
July  24,  1912. 

Fraudulent  enhstment  of  minor  in 
violation  of  this  section  is  not  void,  but 
voidable. — It  is  well  settled  that  under  this 
section  the  enlistment  of  a  minor  without  the 
consent  of  his  parents  or  guardian,  while  valid  as 
to  the  minor,  is  voidable  at  the  instance  of  the 
parents  or  guardian,  and,  upon  application  of 
the  parents  or  guai'dian,  the  ci\al  courts  will, 
by  habeas  corpus  proceedings,  direct  the  imme- 
diate discharge  of  the  minor  under  such  circum- 
stances, unless  disciplinary  proceedings  have 
been  commenced  against  him  by  the  naval  au- 
thorities for  fraudulent  enlistment  or  other  of- 
fense.    (File  7657-207,  Nov.  7,  1913.) 

Section  1419,  as  amended  by  act  of  February 
23,  1881,  is  for  the  protection  of  the  parents  or 
guardian;  and  an  enlistment  in  \dol  at  ion  thereof 
IS  valid  as  to  the  minor,  and  voidable  only  by  the 
parent  or  guardian  before  the  minor  arrives  at 
the  age  of  18  years.  (U.  S.  ex  rel.  Hendricks  v. 
Pendleton,  167  Fed.  Rep.,  690.) 

A  minor  enlisted  in  the  Navy,  although  with- 
out the  consent  of  his  parents  and  in  violation  of 
the  statute,  is  punishable  for  breach  of  discipline 
and  cannot  be  discharged  on  habeas  corpus  at 
suit  of  his  parent  while  undergoing  such  pun- 


ishment. (U.  S.  ex  rel.  Hendricks  v.  Pendle- 
ton, 167  Fed.  Rep.,  690.) 

WTiere  a  minor  under  the  age  of  18  years  en- 
listed in  the  Navy  without  the  consent  of  his 
father,  then  living,  on  the  minor's  fraudulent 
representation  that  he  was  over  21  years  of  age, 
such  enlistment  was  not  void  as  to  the  minor, 
but  was  voidable  only  at  the  instance  of  his 
father.  (U.  S.  v.  Reaves,  126  Fed.  Rep.,  127, 
reversing  Ex  parte  Reaves,  121  Fed.  Rep.,  848, 
which  held  that  section  1419,  as  amended,  de- 
clares a  public  policy,  and  the  enlistment  of  a 
minor  under  the  age  of  18,  without  the  consent 
his  father,  is  void  from  the  beginning  as 
against  the  father,  and  gives  the  minor  no  status 
in  the  naval  service  which  can  be  asserted  by 
the  United  States  to  deprive  the  father  of  the 
custody  and  control  of  his  son  after  he  has  re- 
gained the  same,  or  which  renders  the  son  pun- 
ishable by  court-martial  for  desertion  in  peace- 
ably lea\Tng  his  ship  and  returning  to  his 
father  with  the  latter 's  approval.) 

The  civil  couits  should  not  interfere  by  habeas 
corpus  to  discharge  a  minor  under  18  years  of  age 
who  has  been  enlisted  in  the  naval  ser\dce  with- 
out the  consent  of  his  parents  or  guardians,  if  at 
the  time  of  presentation  of  the  petition  for  the 
writ  the  minor  is  under  arrest  and  held  for  trial 
by  court-martial  on  a  charge  of  desertion  or 
fraudulent  enlistment  or  other  charge  cogniza- 
ble by  a  naval  court.  (Dillingham  v.  Booker, 
163  Fed.  Rep.,  696;  compare  Ex  parte  Baklev, 
148  Fed.  Rep.,  56,  affinned  152  Fed.  Rep., 
1022;  Ex  paite  Lisk,  145  Fed.  Rep.,  860:  and  In 
re  Falconer,  91  Fed.  Rep.,  649.) 

The  appellee,  William  Booker,  did  enlist  as 
an  apprentice  seaman,  and  did  serve  as  such 
until  he  deserted.  It  may  be  admitted  that  he 
fraudulently  enlisted;  still  he  was  both  de  facto 
and  de  jure  in  the  Navy  until  discharged  there- 
from by  operation  of  law,  and  while  he  was  such 
a  seaman  he  was  subject  to  the  rules  and  regula- 
tions of  the  Navy  and  liable  to  be  tried  and  pun- 
ished for  any  infraction  of  the  laws  relating 
thereto.  To  hold  otherwise  would  make  enlist- 
ment a  farce,  would  destroy  discipline,  and 
offer  a  premium  for  desertion.  It  will  not  do  to 
hold  that  he  cannot  be  punished  by  court-mar- 
tial for  crimes  committed  when  he  was  in  the 
naval  service  simply  because  his  parents  did  not 
consent  to  his  enlistment.  The  lack  of  such 
consent  will  necessitate  his  discharge  from  the 
service,  but  it  will  not  absolve  him  from  pun- 
ishment for  the  crimes  he  committed  when  in 
the  serAdce.  (Dillingham  v.  Booker,  163  Fed. 
Rep.,  696.) 

Section  1624,  Revised  Statutes,  pro\ddes  for 
the  government  of  the  United  States  Navy,  and 
article  8  thereof  provides  that  such  punishment 
as  a  court-mai'tial  may  adjudge  may  be  infUcted 
on  any  person  in  the  Navy  who  deserts  there- 
from. \Vhere  a  minor  between  the  ages  of  14 
and  18,  without  the  consent  of  his  father,  then 
living,  enlisted  in  the  Nav-y,  and  received  the 
usual  pay  from  the  date  of  his  enlistment  until 
after  he  deserted,  was  arrested  and  detained  as  a 
deserter,  he  could  not  be  discharged  from  cus- 
tody of  the  naval  authorities  on  a  writ  of  habeas 
corpus  sued  out  by  his  father,  though  the  latter 
was  entitled  to  demand  his  son's  release  from 
the  Navy  as  soon  as  he  had  answered  and  satis- 


550 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1420. 


fied  the  charges  for  desertion  and  fraudulent 
enlistment,  then  pending  against  him.  (U.  S. 
V.  Reaves,  126  Fed.  Rep.,  127,  reversing  121 
Fed.  Rep.,  848.) 

For  other  cases,  see  note  to  section  761,  Re- 
vised Statutes,  and  see  note  to  Constitution,  Ar- 
ticle I,  section  8,  clause  14,  under  "IV.  Juris- 
diction of  courts-martial." 

Pay  and  allowances  under  fraudulent 
enlistment. — A  marine  enlisted  without  con- 
sent of  his  parent,  stating  that  he  was  21  years 
of  age;  subsequently,  his  father  applied  for  his 
discharge,  claiming  that  he  was  onl^  17  years 
of  age,  and  had  enlisted  without  his  parent's 
consent.  The  Navy  Department  refused  to  dis- 
charge him,  deciding  to  accept  the  age  given  by 
him  at  the  time  of  enlistment ;  his  father  brought 
habeas  corpus  proceedings,  and  he  was  ordered 
discharged  by  the  court:  Held,  that  this  was  a 
judicial  determination  that  his  enlistment  was 
fraudulent,  and  he  is  not,  therefore,  entitled  to 
pay,  travel  allowances,  or  other  allowance  un- 
der said  enlistment.  (13  Comp.  Dec, 
817.) 

Pay  actually  received  by  an  enlisted  man  for 
services  during  a  fraudulent  enlistment  can  not 
be  recovered  from  him.  (12  Comp.  Dec, 
445.) 

The  contracts  were  voidable  and  not  void, 
and  until  rescinded  by  the  action  of  the  Gov- 
ernment any  proper  payments  made  by  the 
disbursing  officer  must  be  considered  as  legally 
made,  and  he  should  be  entitled  to  credit  for 
the  same.  (11  Comp.  Dec,  712;  file  4640, 
Apr.,  1906.) 


A  fraudulent  enlistment  is  still  an  enlist- 
ment, and  a  man  so  enlisted  is  de  facto  in  the 
service,  and  therefore  a  sentence  involving  loss 
of  pay  may  be  approved.  (File  5624,  Feb.  17, 
1896.) 

Pay  continues  after  conviction,  unless  for- 
feited in  whole  or  in  part  bv  sentence.  (File 
26254-279.) 

An  apprentice  discharged  for  fraudulent  en- 
listment is  entitled  to  such  pay  as  he  may  have 
received,  but  all  pay  and  allowances  accrued 
and  unpaid  at  the  time  of  discovery  of  the  fraud 
should  be  checked  as  forfeited.  (File  2792-01, 
Jan.  15,  1902;  see  also  Comp.  Dec,  Aug.  12, 
1897,  4  Comp.  Dec,  54.) 

A  person  convicted  by  court-martial  of  fraud- 
ulent enlistment  in  the  Navy  and  the  receipt 
of  pay  and  allowances  thereunder,  and  sen- 
tenced to  be  dishonorably  discharged  from  the 
service,  is  not  entitled  to  any  arrearages  of  pay 
which  accrued  prior  to  conviction.  It  is  not 
necessary  that  this  pay  should  have  been  in- 
cluded in  the  sentence  of  the  court,  since  the 
claimant  never  acquired  title  thereto,  because 
of  the  rescission  of  the  contract  of  enlistment. 
The  Navy  Department,  by  proceeding  against 
the  claimant  through  a  court-martial  and  im- 
posing a  sentence  of  discharge  from  the  service, 
has  taken  advantage  of  the  fraud  to  rescind  the 
contract  of  enlistment.  (4  Comp.  Dec,  54; 
file  26251-3352:1,  May  19,  1910;  but  see  file 
26254-279,  noted  above,  and  19  Comp.  Dec, 
470,  noted  under  sec  1420,  R.  S.) 

For  other  cases,  see  note  to  section  1420,  Re- 
used Statutes. 


Sec.  1420.  [Enlistment,  prohibited  classes.]  No  minor  under  the  age  of 
fourteen  years,  no  insane  or  intoxicated  person,  and  no  person  who  has  deserted 
in  time  of  war  from  the  naval  or  military  service  of  the  United  States  shall  be 
enlisted  in  the  naval  service. 


This  section  was  expressly  amended  and  reen- 
acted  to  read  as  above  by  act  of  August  22, 
1912,  section  2  (37  Stat.,  356). 

As  originally  enacted  this  section  read  as  fol- 
lows: "Sec.  1420.  No  minor  under  the 
age  of  sixteen  years,  no  insane  or  intoxi- 
cated person,  and  no  deserter  from  the 
naval  or  military  service  of  the  United 
States  shall  be  enlisted  in  the  naval  serv- 
ice."—(3  Mar.,  1865,  c.  79,  8.  18.  v.  13, 
p.  490.— U.  S.  V.  Bainbridge,  1  Mae.,  71; 
U.  S.  V.  Stewart,  Crabbe,  265.) 

It  had  previously  been  amended  and  reenacted 
by  act  of  May  12, 1879  (21  Stat.,  3),  which 
changed  the  word  "sixteen"  in  the  origi- 
nal section  to  read  "fifteen  " ;  and  was  there- 
after amended  by  act  of  February  23,  1881, 
section  2  (21  Stat.,  338),  the  amendment 
made  by  the  latter  act  consisting  in  sub- 
stituting the  word  '  'fourteen  "  for '  'fifteen  " 
as  used  in  the  previous  amendatory  act. 

The   punishment   of  officers  who   knowingly 
enlist  persons  in  violation  of  this  section  is 
prescribed  by  section  1624,  Revised  Stat- 
utes, article  19,  as  amended. 
Enlistment  of  pardoned  deserter. — ^The 

pardon  of  a  convicted  deserter  from  the  Navy 

blots  out  his  offense,  and  he  may  legally  be 

reenlisted,  notwithstanding  the  provisions  of 


sections  1420  and  1624  (art.  19),  Revised  Stat- 
utes, prohibiting  the  enlistment  of  deserters  in 
the  naval  service.  (26  Op.  Atty.  Gen.,  617; 
overruled  by  31  Op.  Atty.  Gen.,_  225,  noted 
below.  See  also  note  to  Constitution,  Art.  II, 
sec.  2,  clause  1,  imder  "III.  Power  to  pardon 
offenses  against  the  United  States.") 

Sections  1420  and  1624,  article  19,  Revised 
Statutes,  as  amended,  relate  to  the  general  or- 
ganization and  efficiency  of  the  Navy;  they 
affect  only  incidentally  particular  classes  of 
individuals,  and  obviously  are  not  intended  as 
punishment  for  offenses.  They  place  deserters 
in  the  same  category  with  minors,  insane  per- 
sons, and  intoxicated  persons,  as  not  qualified 
for  the  naval  service.  Accordingly,  held  that 
a  pardon  does  not  remove  the  disqualification 
attached  to  the  fact  of  desertion  by  Revised 
Statutes,  sections  1420  and  1624,  and  that  a 
person  who  has  deserted  in  time  of  war  from 
the  naval  or  military  service  of  the  United 
States  is  not  eligible,  after  pardon,  for  reen- 
listment  in  the  naval  service.  (31  Op.  Atty. 
Gen.,  225,  overruling  26  Op.  Atty.  Gen.,  617, 
noted  above.) 

Enlistment  of  deserter  who  has  not  been 
convicted. — See  note  to  Constitution,  Article 
I,  section  9,  clause  3,  under  "Bill  of  attainder"; 
see  also  sections  1996  and  1998,  Re\ised  Statutes. 


551 


Sec.  1420. 


Pt.  ?.  REVISED  STATUTES. 


The  Navy. 


No  one  who  has  already  been  in  the  naval 
or  military  service  of  the  United  States  shall  be 
enlisted  without  showing  Ms  discharge  there- 
from.    (Art.  1^3524  (3),  NaA^  Regs.,  1913.) 

Section  1420,  Reused  Statutes,  prohibits  the 
enlistment  of  deserters  at  large  as  well  as  con- 
victed   deserters.    (File    7657-132,    Feb.    17, 

ini2.) 

Pay  and  allowances  of  deserter  -wrho 
fraudulently  enlists. — The  fraudulent  en- 
listment of  deserters  may  be  waived  by  the 
Government  and  the  deserters  continued  on 
duty  in  the  Na\'y  and  allowed  the  pay  of  their 
grades.  If  tried  by  court-martial  for  the 
offense,  they  are  entitled  to  so  much  of  their 
pay  as  is  reserved  from  forfeitiu^e  by  sentence 
of  the  court,  and  when  restored  to  duty  are 
entitled  to  the  pay  of  their  grades.  (19  Comp. 
Dec,  470.) 

It  is  well  settled  that  a  fraudulent  enlistment 
is  not  void,  but  voidable  at  the  option  of  the 
Government,  and  this  is  based  upon  the  gen- 
eral principle  of  law  that  when  a  contract  has 
been  procured  by  fraud  it  may  be  avoided  by 
the  innocent  party  upon  the  discovery  of  the 
fraud,  but  if  the  innocent  party  proceeds  with 
the  contract  and  accepts  service  under  it  after 
the  discovery  of  the  fraud,  he  is  bound  to  pay 
for  such  services.     (15  Comp.  Dec,  614.) 

Whether  a  man  securing  his  enlistment  by 
fraud  shall  be  discharged  for  that  reason  or  re- 
tained in  the  service  rests  in  the  sound  discre- 
tion of  the  executive  officers.  If  he  is  to  be  dis- 
charged for  thefraud ,  no  further  paymentsshould 
be  made;  if  he  is  to  be  retained  in  the  service, 
credit  should  be  given  him  and  payments  made 
as  though  no  fraud  had  occurred  in  his  enlist- 
ment. (Comp.  Dec,  Apr.  29, 1903,  24  S.  and  A. 
Memo.,  187;  see  also  15  Comp.  Dec,  614;  14 
Comp.  Dec,  267.) 

For  other  cases  see  note  to  section  1419, 
Re\-ised  Statutes. 

Enlistments  in  violation  of  this  section 
are  void,  and  not  merely  voidable. — The 

fraudulent  enlistment  of  a  deserter  at  large  is 
void  ab  initio  under  the  provisions  of  section 
1420,  Revised  Statutes,  which  section  appUes 
to  deserters  at  large  as  well  as  convicted  desert- 
ers. (File  7657-132,  Feb.  17,  1912;  see  also 
Hoskins  v.  Pell,  239  Fed.  Rep.,  279..) 

[Note:  By  section  1420,  Revised  Statutes, 
Congress  has  placed  on  the  same  footing,  with- 
out discrimination  or  distinction,  the  various 
classes  of  persons  who  are  embraced  within 
the  prohibition  of  that  section,  namely:  1. 
Minora  under  the  age  of  14  years;  2.  Insane 
Of  intoxicated  persons;  and  3.  Deserters  in 
time  of  war  from  the  naval  or  mihtary  service 
of  the  United  States.  All  alike  are  placed 
under  the  same  disqualification,  and  it  is  impos- 
sible to  distinguish  in  this  connection  between 
a  minor,  an  insane  or  intoxicated  person,  and  a 
deserter  in  time  of  war.  (See  U.  S.  v.  Cotting- 
ham,  1  Rob.  (Va.),  633.)  While  the  enlistment 
of  an  insane  or  intoxicated  person  might  have 
been  absolutely  void,  even  in  the  absence  of 
a  direct  prohibition  against  the  enlistment  of 
such  persons,  the  fact  that  minors  under  the 
age  of  14  years  and  deserters  in  time  of  war 
are  classed  with  insane  or  intoxicated  persons 
in  the  same  provision  is  a  strong  indication  that 


it  was  the  purpose  of  Congress  to  place  them 
under  the  same  absolute  disqualification  as  to 
enlistment. 

[A  marked  distinction  will  be  noted  between 
the  language  of  section  1419 — erdistments  in 
violation  of  which  section  are  held  to  be  merely 
voidable  and  not  absolutely  void — and  the  lan- 
guage of  section  1420.  The  former  section  does 
not  absolutely  prohibit  the  enlistment  of  persons 
between  the  ages  of  14  and  18  years,  but  by  its 
terms  expressly  permits  the  enlistment  of  such 
persons,  although  making  it  a  condition  that 
such  minors  have  the  consent  of  their  parents  or 
guardians.  In  other  words.  Congress  has  no 
objection  to  the  enlistment  of  minors  above 
the  age  of  14,  but  on  the  contrary  has  expressed 
its  willingness  that  such  persons  should  be 
enHsted,  merely  providing,  for  the  benefit  of 
parents  or  guardians,  that  their  consent  must 
be  secured  in  cases  where  the  minor  is  over  14 
but  under  18  years  of  age.  It  necessarily 
follows  that  if  the  parents  or  guardians  of  a 
minor  between  14  and  18  years  make  no  ob- 
jection to  his  serving,  the  enlistment  may  be 
treated  by  the  Government  as  valid,  even 
though  their  consent  was  not  given  at  the  time 
of  enlistment;  or,  if  they  make  objection  to 
the  minor's  continuing  in  the  service  and  apply 
for  his  discharge  this  does  not  invalidate  the 
portion  of  the  enlistment  which  has  actually 
been  served.  (See  In  re  Morrissey,  137  U.  S., 
157,  Dillingham  V.Booker,  163  Fed.  Rep.,  696, 
also  other  cases,  holding  that  a  minor  fraudu- 
lently enlisted  is  not  only  de  facto  but  de  jure 
in  the  service.) 

[On  the  other  hand,  section  1420  expressly 
prohibits  the  enlistment  of  certain  classes  of 
persons  without  any  exceptions  or  conditions 
whatsoever.  In  other  words,  this  section 
differs  materially  from  the  other  in  that  here 
Congress  specifically  designates  those  whom 
it  does  not  desire  to  have  in  the  naval  service 
under  any  circumstances.  And  mth  reference 
to  deserters  in  time  of  war  the  Attorney  General 
has  held,  as  noted  above,  that  even  the  Presi- 
dent's pardon  does  not  remove  the  disqualifica- 
tion as  to  reenlistment. 

[Sections  1117  and  1118,  Revised  Statutes, 
relating  to  enlistments  in  the  Army,  and  which 
Were  generally  similar  to  sections  1419  and  1420, 
except  for  a  difference  in  ages,  have  repeatedly 
received  a  judicial  interpretation  similar  to 
the  above.  Thus,  in  Re  Da\ason  (21  Fed. 
Rep.,  618),  which  was  an  appeal  from  4  Fed. 
Rep.,  507,  it  was  said,  with  reference  to  the 
Army  laws:  "The  reasonable  conclusion  war- 
ranted by  these  sections  would  seem  to  be  that 
the  contract  of  enlistment  of  a  minor  under 
16  years  of  age  is  void;  but  that  if  he  is  over  that 
age  it  is  valid,  in  the  absence  of  fraud  or 
duress  as  to  him,  but  during  his  minority  is 
invahd  at  the  election  of  his  parents  or 
guardian." 

[In  the  American  and  English  Encyclo- 
pedia of  Law  (second  edition),  volume  20, 
page  624,  the  substance  of  the  decisions  bearing 
upon  this  question  is  stated  as  follows:  "In  the 
United  States  the  binding  effect  of  a  minor's 
contract  of  enlistment  will  depend  entirely 
upon  the  construction  to  be  placed  upon  the 
several  statutory  provisions  on  the  subject  of 
such  enlistments.     Under  the  provision  pro- 


652 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1420. 


hibiting  absolutely  the  enlistment  of  minors 
untler  the  age  of  16  years,  such  enlistments  are 
plainly  void  for  all  purposes." 

[In  support  of  this  statement  the  following 
cases  are  cited:  In  re  Hearn,  32  Fed.  Rep.,  141; 
Matter  of  Riley,  IBen.  (U.S.),  408,  39  How.  Pr. 
(N.  Y.),  108.  Fed.  Cas.  No.  11834;  InreLawler, 
40  Fed.  Rep.,  233;  Seavey  v.  Seymour,  3  Cliff. 
(U.  S.),  439,  Fed.  Caa.  No.  12596;  Wantlan  v. 
White,  19  Ind.,  470. 

[In  the  Hearn  case,  decided  by  the  District 
Court  of  the  United  States  for  the  Northern  Dis- 
trict of  Ohio,  referring  to  sections  1116,  1117, 
and  1118,  Revised  Statutes,  the  court  said: 
"These  sections  are  to  be  construed  together. 
It  is  clear  that  Congress  provided  by  these 
sections  that  a  minor  under  16  years  of  age 
can  not  be  enlisted,  and,  if  done,  it  ivould  he  ab- 
solutely void,  and  he  could  not  be  held  to  service; 
but  it  is  also  clear  that  if  he  be  16  years  old  he 
can  legally  enUst.  Congress,  having  so  author- 
ized, makes  such  enlistment  legal,  and  thereby 
confers  capacity  on  such  minor  to  make  the  con- 
tract of  enlistment.  If  the  relator  was  by  the 
law  made  competent  to  enter  into  this  contract 
when  over  16  years  of  age,  he  can  not  for  himself 
avoid  it.  Section  1117,  requiring  the  written 
consent  of  parents  or  guardians,  when  under  21 
years  of  age,  was  for  the  benefit  of  such  parents, 
who  might  assert  their  right  to  his  custody  be- 
fore majority,  and  does  not  affect  the  capacity 
of  the  minor  to  bind  himself." 

[To  the  same  effect  is  the  Riley  case,  which 
was  decided  by  the  District  Court  of  the  United 
States  for  the  Southern  District  of  New  York  in 
1867.  Referring  to  the  laws  then  in  force,  it  was 
held  by  Judge  Blatchford,  aftenvards  Associate 
Justice  of  the  Supreme  Court  of  the  United 
States  (quoting  syllabus):  "Enlistments  of 
minors  over  18  years  of  age  into  the  Army  of  the 
United  States,  without  the  consent  of  their 
parents,  masters,  or  guardians,  are  valid,  but 
it  is  not  lawful  to  muster  into  the  service  a  per- 
son under  18  years  of  age." 

[In  the  Lawler  case,  which  wasan  appeal  from 
the  District  Court  for  the  Northern  District  of 
Georgia,  it  was  said  by  Pardee,  circuit  judge,  in 
affirming  the  judgment  of  the  lower  court:  "In 
this  view  of  the  case,  no  issue  is  left  except  the 
single  one  as  to  whether  or  not  the  petitioner  was 
under  the  age  of  16  years  when  he  enlisted.  If 
he  was  over  the  age  of  16  years  at  that  time,  his 
enhstment,  according  to  the  return ,  was  regular 
and  valid;  if  he  was  under  16  years  of  age,  the 
enlistment  was  void,  whether  the  father  con- 
sented in  writing  or  not. " 

[The  case  of  Seavey  v.  Seymour,  which  was 
an  appeal  from  the  District  Court  of  the  United 
States  for  the  District  of  Maine,  was  decided 
by  Mr.  Justice  Clifford,  of  the  Supreme  Court 
of  the  United  States,  while  sitting  in  the  Cir- 
cuit Court  for  the  First  Circuit.  In  an  exhaust- 
ive opinion  in  this  case  Mr.  Justice  Clifford 
affirmed  the  decision  of  the  lower  court  holding 
that  the  enlistment  of  a  minor  under  the  age  of 
18  years  was  made  void  by  the  law  then  in  force. 

[In  the  case  of  Wantlan  v.  White  the  question 
at  issue  was,  "  whether  a  volunteer  in  the  Army 
of  the  United  States,  as  a  private,  who  is  under 
the  age  of  18  years,  can  be  held  to  the  service  by 
virtue  of  his  enlistment,"  and  the  court  was 
"  unanimously  of  the  opinion  that  he  can  not  be 


so  held."  The  opinion  in  this  case  reads,  in 
part,  as  follows:  "  Volunteers  under  the  statutes 
named,  before  they  become  soldiers,  have  to  be 
mustered  into  the  service  of  the  United  States; 
and,  on  the  13th  day  of  February,  1862,  Con- 
gress enacted  a  law  'that  hereafter  no  person 
under  the  age  of  18  years  shall  be  mustered  into 
the  United  States  service.'  *  *  *  From 
the  13th  day  of  February,  1862,  then,  no  consent 
could  give  power  to  enlist  a  minor  under  the  age 
of  18,  or  could  validate  such  enlistment  while 
the  minor  continued  under  18." 

[The  case  of  Commonwealth  ex  rel.  Bryson  v. 
Carter  (20  Leg.  Int.  (Phila.),  21),  also  involved 
the  construction  of  the  act  of  February  13,  1862, 
with  reference  to  which  the  court  said:  "The 
Secretary  of  War,  by  the  existing  law,  had  the* 
power  to  discharge  minors.  This  power  was  ex- 
ercised by  that  officer,  and  it  must  also  be  re- 
membered by  the  courts.  The  unfortunate 
condition  of  the  country  rendered  it  exceed- 
ingly difficult  for  the  Secretary  of  War  to  ex- 
ercise this  quasi  judicial  power  in  a  satisfactory 
manner.  To  relieve  him,  therefore,  Congress 
destroys  his  power.  In  doing  so,  however,  it 
was  deemed  advisable,  also,  to  declare  that  in- 
fants under  18  should  not  enlist  in  the  Army  of 
the  United  States,  and  that  no  power  should 
hereafter  be  given  to  any  tribunal  to  declare  such 
enlistments  valid.  While,  therefore,  the  power 
of  the  Secretary  of  War  is  destroyed  in  the  body 
of  the  law,  the  proviso  limits  the  power  of  the 
courts;  the  Secretary  of  War  is  relieved  from  the 
discharge  of  a  most  onerous  duty,  and  the  courts 
are  hereafter  to  declare  contracts  of  enlistments 
made  by  minors  under  18  years  of  age,  either  with 
or  without  the  consent  of  parents  or  guardians,  to 
be  null  and  void." 

[In  no  case  has  it  been  judicially  determined 
by  the  Supreme  Comt  of  the  United  States  that 
the  fraudulent  enlistment  of  a  deserter  at  large 
in  violation  of  express  statutory  prohibitions  is 
merely  voidable  and  not  absolutely  void.  In 
the  War  Department  the  practice  in  such  cases 
prior  to  1890  was  not  imiform.  In  some  cases 
it  was  held  that  the  second  enlistment  was 
"void  and  of  no  effect";  in  other  cases  it  was 
the  practice  to  hold  that  the  enlistment  was 
"illegal" ;  wliile  it  was  sometimes  held  that  the 
enlistment  was  voidable  only.  However,  "a 
uniform  practice  was  adopted  in  1892,  since 
which  time  it  has  been  uniformly  held  by  the 
[War]  Department  that  in  the  cases  of  enlist- 
ments of  deserters  while  a  former  enlistment 
contract  was  in  force  [the  second  enlistment] 
was  voidable  and  not  absolutely  void."  (See 
file  7657-132.)     ' 

[The  present  practice  of  the  War  Department 
was  apparently  based  upon  the  decision  of  the 
Supreme  Court  in  Re  Griniley,  decided  Novem- 
ber 17,  1890  (137  U.  S.,  147).  The  question 
presented  in  that  case  was  whether  an  enlisted 
man  could  escape  punishment  for  a  military 
offense  on  the  ground  that  at  time  of  enlist- 
ment in  the  Ai'my  he  was  over  35  years  of  age, 
when  the  law  (sec.  1116,  R.  S.)  provided  that 
"  Recruits  enlisting  in  the  Army  must  be  effect- 
ive and  able-bodied  men,  and  between  the  ages 
of  16  and  35  years,  at  the  time  of  their  enlist- 
ment. *  *  *."  The  court  held  that  "An 
enlisted  soldier  can  not  avoid  a  charge  of  deser- 
tion by  showing  that  at  the  time  when  he  vol- 


553 


Sec.  1420. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


untarily  enlisted  he  had  passed  the  age  at  which 
the  law  allows  enlisting  officers  to  enlist  re- 
cruits." 

[Even  though  the  enlistment  in  the  Grimley 
case  had  been  void,  it  seems  clear  from  the 
authorities  that  this  could  not  have  been  set  up 
by  him  as  a  valid  defense  upon  a  trial  by  court- 
martial  for  a  military  offense  committed  while 
serving  as  a  de  facto  enlisted  man.  (See  Com- 
monwealth r.  Gamble,  Supreme  Court  of  Penn- 
sylvania, 11  Serg.  &  Rawle,  93;  Ex  parte  Ander- 
son, 16  la.,  595;  Wilbur  v.  Grace,  Court  of 
Errors,  New  York,  12  Johns.,  67;  InreBeswick, 
Supreme  Court  of  New  York,  25  How.  Pr.,  149; 
In  re  McVey,  23  Fed  Rep.,  878;  In  re  Cosenow, 
37  Fed.  Rep.,  668;  In  re  Zimmerman,  30  Fed. 
Rep.,  176;  In  re  Kaufman,  41  Fed.  Rep.,  876; 
Carroll  v.  Ball,  Fulton  (Ga.)  Superior  Court 
(file  7988);  see  also  file  7657-132,  and  cases  noted 
under  sees.  761  and  1419,  R.  S.,  and  note  to 
Constitution,  Art.  I,  sec.  8,  clause  14,  under 
"IV.  Jurisdiction  of  courts-martial.") 

[It  will  be  noted  that  section  1116,  Revised 
Statutes,  which  was  construed  in  the  Grimley 
case,  fixes  the  qualifications  for  enlistment  in 
the  Army,  but  is  not  expressly  prohibitory  in 
terms  as  ia  section  1420.  "  Proliibitory  stat- 
utes must  not  be  interpreted  on  a  principle  of 
leniency;  if  anything  done  is  substantially  that 
wliich  is  prohibited  the  thing  is  void,  not  be- 
cause of  its  tendency,  but  because  it  is,  within 
the  true  construction  of  the  statute,  the  thing 
prohibited."  (Sutherland  on  Statutory  Con- 
struction, sec.  254.)  Certain  statements  con- 
tained in  the  court's  opinion  in  the  Grimley 
case  are  broad  enough  to  apply  to  cases  of  en- 
listments in  violation  of  the  express  statutory 
prohibitions,  and  to  suggest  that  such  enlist- 
ments are  not  absolutely  void;  but  such  re- 
marks, which  are  not  called  for  by  the  facts  of 
the  case  decided,  have  not  the  force  of  a  decision 
and  are  disregarded  by  the  Supreme  Court 
itself  in  subsequent  cases  where  the  precise 
question  is  raised.  (See  Cohens  v.  Va.,  6 
Wheat.,  264,  399,  per  Chief  Justice  Marshall; 
Carroll  v.  Lessee  of  Carroll,  16  How.,  287;  Pol- 
lock V.  Farmers'  Loan  and  Trust  Co.,  157  U.  S., 
574;  Rush  v.  French,  25  Pac,  816,  1  Ariz.,  99, 
134.) 

In  Hoskins  v.  Pell  (239  Fed.  Rep.,  279),  it 
was  held  that  the  fraudulent  enlistment  in  the 
Army  of  a  minor  15  years  of  age  was  void  under 
section  1118,  Revised  Statutes,  which  is  simi- 
lar to  section  1420  relating  to  the  Navy. 

[The  proper  conclusion  supported  by  the 
authorities  above  cited  appears  to  be  that 
fraudulent  enlistments  in  violation  of  section 
1420  are  void  ab  initio,  and  not  merely  voidable, 
differing  in  this  respect  from  fraudulent  enlist- 
ments in  violation  of  section  1419,  the  party 
fraudulently  enlisting  under  the  latter  statute 
being  both  de  facto  and  de  jure  in  the  service.] 

Desertion  "in  time  of  war." — Desertion 
after  December  10,  1898,  from  a  receiving  ship 
at  Boston  was  not  desertion  in  time  of  war. 
The  treaty  of  peace  signed  December  10,  1898, 
while  not  ratified  until  April  11,  1899,  was 
effective  from  the  date  of  signature,  as  far  as 
exercise  of  sovereign  powers  was  concerned. 
(File  6642-03,  Sept.  1,  1903;  see  also  file  8693- 
01,  Nov.  23,  1901,  and  6562,  Jan.  24,  1907.) 


Desertion  after  the  conclusion  of  the  protocol 
with  Spain  of  August  12,  1898,  but  prior  to 
the  signing  of  the  treaty  of  peace  or  the  ratifica- 
tion thereof,  is  desertion  in  time  of  war.  The 
date  of  the  signing  of  the  treaty  is  the  earliest  on 
which  the  war  with  Spain  may  be  considered 
to  have  terminated.  (File  14535-719,  May  24 
1909.) 

Desertion  from  the  Navy  on  September  17, 
1898,  was  desertion  in  time  of  war.  (File  26516- 
47,  May  18,  1911.) 

Payment  of  death  gratuity  in  case  of 
deserter  who  fraudulently  enUsted. — After 
the  death  of  a  man,  the  evidence  wasstrong  that 
he  was  serving  under  a  fraudulent  enlistment. 
If  such  evidence  had  been  presented  during  the 
man's  lifetime,  the  Nav-y  Department  would 
have  taken  proper  action  and  he  would  have 
been  discharged  or  the  fraud  waived  and  he 
continued  in  the  service;  but  he  would  not  have 
been  condemned  unheard .  WTiat  evidence  the 
man  might  have  presented  we  know  not,  nor  do 
we  know  what  proof  he  might  have  produced 
that  the  naval  authorities  at  some  time  had 
knowledge  of  the  former  service  in  the  Marine 
Corps  and,  by  ignoring,  had  waived  the  fraud. 
The  man  is  dead  and  can  now  neither  be  dis- 
charged from  the  naval  service  nor  any  fraud 
waived  by  continuing  him  in  it.  Under  the 
circumstances,  the  rule  as  to  forfeiture  of 
arrearages  of  pay  on  account  of  fraudulent  en- 
listment has  no  application,  nor  has  it  the  effect 
of  depriving  the  widow  of  the  gratuity  given  by 
the  act  of  May  13, 1908,  to  a  widow  or  designated 
beneficiary  of  "any  officer  or  enlisted  man  on 
the  active  list  of  the  Navy  and  Marine  Corps" 
who  died  from  ' '  wounds  or  disease  contracted  in 
line  of  duty."     (15  Comp.  Dec,  614.) 

Aliens  not  to  be  enlisted. — Only  citizens 
of  United  States  or  natives  of  insular  posses- 
sions shall  be  permitted  to  enlist  in  the  Navy 
(Art.  R-3524  (1),  Navy  Regs.,  1913;  see  also 
Navy  Dept.  Circular,  Sept.  1, 1908);  except  that 
men  holding  honorable  discharges  or  continu- 
ous-service certificates  on  which  is  endorsed  an 
"honorable"  or  "ordinary"  discharge  with 
recommendation  for  reenlistment,  shall,  if 
otherwise  qualified,  be  accepted  for  reenlist- 
ment upon  making  application  within  four 
months  after  discharge.  (Art.  R-3527  (1),  Navy 
Regs.,  1913.) 

Enlistments  in  the  Marine  Corps  are  governed 
by  the  laws  and  regulations  relating  to  the  Navy 
[see  notes  to  sections  1418  and  1422,  Revised 
Statutes].  There  is  no  statute  prohibiting  the 
enlistment  of  aliens  in  either  the  Nav}-  or  Marine 
Corps,  and  there  is  nothing  in  the  regulations 
which  would  prohibit  the  reenlistment  in  the 
Marine  Corps  of  an  alien  enemy  who  had  an 
excellent  character  on  discharge  from  his  last 
previous  enlistment.  However,  imder  well- 
established  rules  of  international  law,  the  en- 
listment of  an  alien  enemy  would  be  objection- 
able and  might  lead  to  unfortunate  results. 
(File  7657-488,  Sept.  20,  1917). 

Aliens,  not  enemies  of  the  United  States, 
who  have  declared  their  intention  to  become 
citizens  of  the  United  States,  may  be  enrolled 
in  the  Naval  Reserve  Force.  (Act  May  22, 
1917,  40  Stat.,  84.) 


554 


The  Navy. 


Pt.  :^.  REVISED  STATUTES. 


Sec.  1422. 


Sec.  1421.  [Enlisted  men ;  transfer  from  military  to  naval  service.]  Any  person 
enlisted  in  the  military  service  of  the  United  States  may,  on  application  to  the 
Navy  Department,  approved  by  the  President,  be  transferred  to  the  Navy  or 
Marine  Corps,  to  serve  therein  the  residue  of  his  term  of  enlistment,  subject  to 
the  laws  and  regulations  for  the  government  of  the  Navy.  But  such  transfer 
shall  not  release  him  from  any  indebtedness  to  the  Government,  nor,  without 
the  consent  of  the  President,  from  any  penalty  incurred  for  a  breach  of  military 
law.— (1  July,  1864,  c,  201,  s.  1,  v.  13,  p.  342.) 


Transfer  of  marines  to  Hospital  Corps  of  the 
Navy  was  authorized  by  acts  of  June  17, 
1898  (30  Stat.,  474),  and  August  29,  1916 
(39  Stat.,  572). 

Transfer  of  enlisted  men  of  the  naval  service 
to  the  Naval  Flying  Corps  was  authorized 
by  act  of  AugU8t_29,  1916  (39  Stat.,  586). 

Transfer  of  the  Marine  Corps  temporarily  to 
the  Army,  is  provided  for  by  section 
1621,  Revised  Statutes. 

Transfer  of  the  Coast  Guard  temporarily  to 
the  Navy  is  authorized  by  act  of  January 
28,  1915(38  Stat.,  800).  ^ 

Transfer  of  Lighthouse  Service  temporarily  to 
the  jurisdiction  of  the  Navy  Department 
is  authorized  by  act  of  August  29,  1916, 
(39  Stat.,  602). 

Transfer  of  Coast  and  Geodetic  Survey  tem- 
porarily to  the  jurisdiction  of  the  Navy 
Department  is  authorized  by  act  of  May 
22,  1917,  section  16  (40  Stat.,  87). 

Transfer  of  Public  Health  Service  temporarily 
to  the  jurisdiction  of  the  Navy  Department 
is  authorized  by  acts  of  July  1,  1902,  sec- 
tion 4  (32  Stat.,  713),  July  9, 1917  (40  Stat., 
242),  and  October  6, 1917  (40  Stat.,  393).  _ 

Who  are  subject  to  military  law:  See  section 

1342,  Revised  Statutes,  and  notes  thereto. 

Historical  note. — Provision  for  the  transfer 

of  persons  in  the  military  service  to  the  naval 

service  was  made  by  resolution  of  February  24, 

1864  (13  Stat.,  402),  repealed  by  act  of  June  3, 


1864  (13  Stat.,  119).  Authority  for  such 
transfer  v.ras  again  given  by  act  of  July  1,  1864 
(13  Stat.,  342),  from  which  the  above  section 
of  the  Revised  Statutes  is  taken.  In  the 
Commissioners'  Draft  of  the  Revised  Statutes, 
vol.  1,  page  695,  the  following  note  was  made 
to  the  paragraph,  now  section  1421:  "This  pro- 
vision seems  to  have  been  intended  to  meet 
the  exigencies  of  the  late  war.  It  may,  perhaps, 
be  deemed  proper  to  repeal  it,  as  unsuitable 
to  the  permanent  relations  of  the  military  and 
naval  branches  of  service."  Nevertheless,  the 
provision  was  retained,  and  has  never  since 
been  repealed. 

A  marine,  on  being  transferred  to  the 
Hospital  Corps  of  the  Navy,  should  not  be 
discharged  from  the  Marine  Corps,  but  should 
sign  enlistment  papers  for  the  balance  of  the 
term  of  his  original  enlistment.  (File  3450-04. 
See  also  file  3796-02,  9033-02,  and  5315-04. 
Compare  cases  noted  under  sec.  1426,  R.  S., 
"Revocation  of  discharge  obtained  by  fraud.") 

A  marine  transferred  to  the  Hospital  Corps 
is  entitled  to  an  honorable  discharge  upon 
expiration  of  original  period  of  enlistment, 
with  all  the  benefits  incident  thereto,  including 
reenUstment  with  continuous  service,  or  if 
he  does  not  reenlist,  he  may  be  furnished 
transportation  to  his  place  of  last  enlistment  in 
the  Marine  Corps.  (File  5315-04,  July  5,  1904; 
see  also  11  Comp.  Dec,  700,  noted  under 
sec.  1426,  R.  S.) 


Sec.  1422.  [Enlistment,  detention  after  expiration  of ;  transportation  home.] 
[It  shall  he  the  duty  of  the  commanding  officer  of  any  fleet,  squadron,  or  vessel 
acting  singly,  when  on  service,  to  send  to  an  Atlantic  fort  of  the  United  States,  in 
some  public  or  other  vessel,  all  petty  officers  and  persons  of  inferior  ratings  desiring 
to  go  there,  at  the  expiration  of  their  terms  of  service,  or  as  soon  thereafter  as  may 
he,  unless,  in  his  opinion,  the  detention  of  such  persons  for  a  longer  period  should 
he  very  essential  to  the  public  interests,  in  which  case  he  may  detain  them,  or  any 
of  them,  until  the  vessel  to  which  they  belong  shall  return  to  such  Atlantic  port.] 
[That  it  shall  be  the  duty  of  the  commanding  officer  of  any  fleet,  squadron,  or 
vessel  acting  singly,  when  on  service,  to  send  to  an  Atlantic  or  to  a  Pacific 
port  of  the  United  States,  as  their  enhstment  may  have  occurred  on  either 
the  Atlantic  or  Pacific  coast  of  the  United  States;  in  some  public  or  other  vessel, 
all  petty-officers  and  persons  of  inferior  ratings  desiring  to  go  there  at  the 
expiration  of  their  terms  of  enlistment,  or  as  soon  thereafter  as  may  be,  unless, 
in  his  opinion,  the  detention  of  such  persons  for  a  longer  period  should  be 
essential  to  the  pubUc  interests,  in  which  case  he  may  detain  them,  or  any  of 
them,  mitil  the  vessel  to  wliich  they  belong  shall  return  to  such  Atlantic  or 
Pacific  port.     All  persons  enUsted  without  the  limits  of  the  United  States  may 


54641°— 22- 


-36 


555 


Sec.  1422. 


Ft.  2.  REVISED  STATUTES. 


The  Navy. 


be  discharged,  on  the  expiration  of  their  enlistment,  either  in  a  foreign  port 
or  in  a  port  of  the  United  States,  or  they  may  be  detained  as  above  provided 
beyond  the  term  of  their  enUstment;  and  that  all  persons  sent  home,  or  detained 
by  a  commanding  officer,  according  to  the  provisions  of  this  act,  shall  be  subject 
in  all  respects  to  the  laws  and  regulations  for  the  government  of  the  Navy 
imtil  their  return  to  an  Atlantic  or  Pacific  port  and  their  regular  discharge; 
and  all  persons  so  detained  by  such  officer,  or  re-entering  to  serve  until  the 
return  to  an  Atlantic  or  Pacific  port  of  the  vessel  to  which  they  belong,  shall 
in  no  case  be  held  in  service  more  than  thirty  days  after  their  arrival  in  said 
port;  and  that  all  persons  who  shall  be  so  detained  beyond  their  terms  of 
oidistment  or  who  shall,  after  the  termination  of  their  enhstment,  voluntarily 
re-enter  to  serve  mitil  the  return  to  an  Atlantic  or  Pacific  port  of  the  vessel  to 
which  they  belong,  and  their  regular  discharge  therefrom,  shall  receive  for  the 
time  dm'ing  wliich  they  are  so  detained,  or  shall  so  serve  beyond  their  original 
teims  of  enlistment,  an  addition  of  one-fourth  of  their  former  pay:  Provided, 
That  the  shipping-articles  shall  hereafter  contain  the  substance  of  this 
section.]— (17  July,  1862,  c.  204,  s.  17,  v.  12,  p.  610;  3  Mar.,  1875,  c.  155,  v.  18, 
p.  484;  Wilkes  v.  Dinsman,  7  How.,  125.) 


This  section  is  printed  above  as  it  appears  in 
the  second  edition  of  the  Re\dsed  Statutes. 
The  portion  printed  in  italics  is  the  original 
section  as  it  appeared  in  the  fii'st  edition  of 
the  Revised  Statutes,  and  the  latter  por- 
tion, printed  in  the  ordinary  roman  letter, 
is  the  section  as  amended  by  act  of  March 
3,  1875,  cited  above  in  the  revisers'  notes. 
(See  Introduction,    ante,   concerning  the 
second  edition  of  the  Revised  Statutes.) 
The  pay  of  men  detained  after  term  of  enlist- 
ment in  accordance  with  this  section  was 
formerly  provided  for  by  section  1572,  Re- 
vised Sta,tutes,  which  is  superseded  by  the 
pro\'isions  of  this  section  as  amended  by  the 
act  of  March  3,  1875. 
Mileage  allowed  for  travel  on  shore,  and  trans- 
portation and  subsistence  allowed  for  sea 
travel,  to  place  of  actual  bona  fide  home 
or  residence,  or  original  muster  into  the 
service,    to    men    honorably    discharged 
from  the  Navy  or  Marine  Corp.=!,  and  naval 
reservists  honorably  released  from  active 
service.     (Act  June  3,  1916,  sec.  126,  39 
Stat.  217,  as  amended   by  act  Feb.  28, 
1919,  sec.  3,  40  Stat.,  1203.) 
Pro\'ision3  similar  to  those  contained  in  this  sec- 
tion were  first  enacted  by  act  of  March  2, 
1837  (5  Stat.,  153). 
The  term  of  enlistment  in  the  Navy  is  provided 
for  by  section  1418,  Re\dsed  Statutes,  and 
amendments  thereto. 
Transportation  of  discharged  naval  prisoners  to 
their  homes  or  places  of  enlistment  is  au- 
thorized by  act  of  March  3,  1909  (35  Stat., 
756). 
This  section  is  a  recognition  of  the  Gov- 
ernment's duty  to  discharge  persons  entering 
the  military  or  naval  8er\ice  for  limited  periods 
at  the  place  of  their  appointment  or  enlistment. 
This  duty  was  also  recognized  by  the  Court  of 
Claims  in  the  case  of  volunteer  officers  and 
enlisted   men  in  the  decision  of  Daggett  v. 
United  States  (39  Ct.  Cls.,  218),  in  which  it 


was  said :  "It  is  well  settled  by  statute,  by  regu- 
lations, by  judicial  decisions,  that  volunteer 
officers  and  enlisted  men  are  entitled  to  be  paid 
to  the  time  of  their  discharge  or  muster  out, 
and  that  they  are  entitled  to  be  discharged  or 
mustered  out  at  the  place  where  they  were  en- 
rolled or  enlisted."  The  same  principle  was 
recognized  by  the  Navy  Regulations  of  1909 
(art.  1367),  which  pro^dded  for  the  discharge  of 
paymasters'  clerks  at  the  place  in  the  United 
States  which  they  left  under  their  appoint- 
ments. Similarly  it  was  provided  by  sections 
4582  and  4583  of  the  Re\-ised  Statutes,  as 
amended  by  the  act  of  December  21,  1898  (30 
Stat.,  759,  760),  that  seamen  on  merchant  ves- 
sels discharged  abroad  should  be  returned 
home  by  the  master  or  afforded  bv  him  the 
means  for  so  doing.  (File  26254-359,  Nov.  9, 
1909;  see  also  Da\-i8  v.  U.  S.,  47  Ct.  Cls.,  195, 
overruling  Comp.  Dec,  July  29,  1909,  101 
S.  and  A.  Memo.,  1222,  upon  authority  of  which 
decision  of  the  Comptroller,  and  following  the 
Attorney  General's  refusal  to  review  same 
(28  Op.  Atty.  Gen.,  129),  art.  1367  of  the  Na^y 
Regs.,  1909,  was  annulled;  and  see  Allerdice  v. 
U.  S.,  19  Ct.  Cls.,  511,  513.) 

The  act  of  March  3,  1875  (18  Stat., 
484),  made  no  material  change  in  section 
1422  except  to  pro^^.de  that  the  persons  whose 
terms  of  8er\ice  were  about  to  expire  might  be 
returned  to  a  Pacific  port  if  they  had  enlisted 
on  that  coast  instead  of  to  an  Atlantic  port;  but 
it  carried  into  said  section  the  provisions  of 
section  1572  regarding  one-fourth  additional 
pay,  and  also  the  pro\'isions  of  sections  1423, 
1424,  and  1425,  upon  the  same  general  subject, 
practically  consolidating  all  of  said  sections 
into  one. "  These  sections  were  originally  com- 
piled from  section  17  of  the  act  of  July  17, 
1862  (12  Stat.,  610),  which  contained  the  sub- 
stance of  the  law  as  it  now  stands,  except  the 
provision  for  the  retiim  to  a  Pacific  port  of 
persons  enlisting  on  that  coast.  (5  Comp. 
Dec,  524.) 


556 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1422. 


The  word  "essential"  means  "neces- 
sary," and  if  a  person's  services  were  needed 
it  follows  that  they  were  essential  within  the 
meaning  of  this  section.  Where  commanding 
officer  would  not  certify  that  man's  services 
were  "essential"  to  the  public  interest,  but 
did  certify  that  they  were  "needed,"  the  man 
was  held  entitled  to  the  additional  pay  provided 
by  section  1422.     (23  Comp.  Dec,  249.) 

Detention  of  marines. — Enlisted  persons 
in  the  Marine  Corps  are  entitled  to  an  increase 
of  one-fourth  their  former  pay  while  detained 
beyond  their  terms  of  enlistment.  (5  Comp. 
Dec,  524.) 

The  act  of  March  2,  1837  (5  Stat.,  153),  enti- 
tled "An  act  to  provide  for  the  enlistment  of 
boys  for  the  naval  service,  and  to  extend  the 
term  for  the  enlistment  of  seamen,"  contained 
substantially  the  same  provisions  relating  to  the 
return  to  the  United  States  of  "persons  enlisted 
for  the  Navy,"  according  to  the  provisions  of 
said  act,  aa  are  found  in  section  17  of  the  act  of 
July_17,  1862/12  Stat.,  610).  The  act  of  1837 
provided,  as  in  the  present  law,  that  persons 
enlisted  for  the  Navy,  detained  beyond  the 
terms  of  their  enlistment  according  to  said  act, 
should  while  so  detained  and  serving  receive 
an  addition  of  one-fourth  to  their  former  pay. 
Attorney  General  Legare  (4  Op.  Atty.  Gen.,  89) 
held  that  said  act  did  not  include  marines,  say- 
ing that  the  act  "is  no  more  than  what  it  pur- 
ports to  be — 'an  act  to  provide  for  the  enlist- 
ment of  boys  for  the  naval  service  and  to 
extend  the  term  for  the  enlistment  of  seamen. ' " 
However,  in  the  case  of  Wilkes  v.  Dinsman  (7 
How.,  89),  which  was  an  action  for  damages  by 
a  marine  against  his  superior  officer  for  punish- 
ment inflicted  for  disobedience  of  orders  while 
so  detained  beyond  his  enlistment,  the  Supreme 
Court  held  that  marines  were  embraced  within 
the  spirit  if  not  the  letter  of  the  act,  by  the  de- 
scription of  persons  "enlisted  for  the  Navy." 
There  were  other  circumstances  in  that  case 
which  evidently  influenced  the  decision  of  the 
court,  and  their  conclusion  was  not  based  solely 
upon  the  statute.  Congress,  however,  placed 
its  own  construction  upon  the  statute  of  1837  by 
enacting,  in  section  9  of  the  act  of  March  3,  1845 
(5  Stat.,  795),  that  the  term  "persons"  used  in 
the  second  and  third  sections  of  said  act  of  1837 
should  be  "construed  to  include  marines." 
After  this  amendment  of  the  act  of  1837,  Second 
Comptroller  Brodhead  held,  very  properly,  that 
marines  were  entitled  to  the  benefits  of  the  act, 
citing  the  amendatory  act  of  March  3,  1845. 
This  was  probably  the  manner  in  which  the 
practice  arose  of  allowing  marines  one-fourth 
additional  to  their  pay  for  detention  beyond 
their  term  of  enlistment,  which  practice  has 
been  continued,  notwithstanding  the  subse- 
quent changes  in  the  law.     (5  Comp.  Dec,  524.) 

It  was  provided  by  section  1  of  the  act  of 
August  5,  1854  (10  Stat.,  586),  "that  the  non- 
commissioned officers,  musicians,  and  privates 
of  the  U.  S.  Marine  Corps  shall  be  entitled  to  and 
receive  the  same  pay  and  bounty  for  reenlisting 
as  are  now  or  may  hereafter  be  allowed  to  the 
noncommissioned  officers,  musicians,  and  pri- 
vates in  the  Infantry  of  the  Army."  [Section 
1612,  Revised  Statutes.]  It  would  seem  that 
this  provision  was  intended  to  supersede  all  laws 
then  in  force  relating  to  the  pay  of  enlisted  men 


of  the  Marine  Corps  and  to  repeal,  among  other 
provisions,  that  portion  of  the  act  of  1837,  as 
amended,  which  gave  marines  one-fourth  addi- 
tional pay  for  serving  beyond  their  enlistments. 
But  the  former  practice  of  allowing  marines  this 
increase  was  continued  as  though  the  law  did 
not  apply  to  cases  of  that  kind.  (5  Comp. 
Dec,  524.) 

The  seventeenth  section  of  the  act  of  July  17, 
1862,  from  which  section  1422,  Revised  Stat- 
utes, was  originally  taken,  was  but  a  repetition 
in  substance  of  the  act  of  1837.  The  latter  act 
was  not  carried  into  the  Revised  Statutes, 
either  in  its  original  form  or  as  amended  to  in- 
clude marinas  by  the  act  of  March  3,  1845. 
Not  having  been  incorporated  into  the  Revised 
Statutes  as  thus  amended,  unless  superseded 
by  the  act  of  1854,  making  the  pay  of  marines 
correspond  to  that  of  the  infantry  of  the  Army, 
it  still  remains  in  force,  so  far  as  concerns  the 
pay  of  marines,  by  virtue  of  section  5566,  Re- 
vised Statutes,  which  provides  that  where  no 
part  of  a  statute  has  been  carried  into  the  Re- 
vised Statutes  it  is  not  to  be  treated  as  repealed 
by  the  revision.    (5  Comp.  Dec,  524.) 

Were  the  question  a  new  one,  the  inclination 
would  be  strong  to  hold  that  the  act  of  1854 
[section  1612,  Revised  Statutes]  governed  the 
whole  subject  of  pay  of  marines,  and  in  effect 
repealed  the  amended  act  of  1837,  which  gave 
one-fourth  additional  pay  to  marines  for  serving 
beyond  enlistment;  but  the  long-continued  con- 
struction, since  the  passage  of  the  act,  allowing 
them  this  increase  is  entitled  to  great  weight 
and  as  it  is  not  clearly  contrary  to  express  pro- 
visions of  law  it  should  not  be  overturned .  Ac- 
cordingly, held  that  the  provision  regarding 
marines  in  the  act  of  1837  as  amended,  not  hav- 
ing been  superseded  by  the  act  of  1854  nor  in- 
corporated in  the  Revised  Statutes,  still  remains 
in  force,  and  enlisted  men  of  the  Marine  Corps 
detained  in  service  beyond  their  periods  of 
enlistment  are  entitled  to  an  increase  of  one- 
fourth  to  their  original  pay,  as  provided  in  said 
act.    _(5Comp.Dec.,524.) 

It  is  suggested  that  marines  are  included 
within  the  very  words  of  the  law  as  now  em- 
bodied in  section  1422,  under  the  description 
"persons  enlisted  in  the  naval  service,"  and  so 
entitled  to  the  increase  of  one-foiu"th  to  their 
pay  when  they  bring  themselves  within  the 
conditions  which  entitle  seamen  to  such  in- 
crease. However,  the  comptroller  does  not 
favor  this  construction,  notwithstanding  the 
sanction  implied  in  the  decision  of  the  Supreme 
Court  in  the  case  of  Wilkes  v.  Dinsman  (above 
noted).  Congress  placed  the  opposite  construc- 
tion upon  similar  words  in  the  act  of  1837  by 
amending  the  act  to  include  marines.  (5  Comp. 
Dec,  524.) 

Marines  are  not  specifically  mentioned  in  this 
statute,  but  it  has  been  held  by  the  Comptroller, 
in  view  of  the  history  of  the  legislation  con- 
densed into  section  1422,  and  of  the  long- 
continued  practice  of  the  accounting  officers, 
that  marines  should  be  allowed  the  benefit  of 
the  statute.  (Comp.  Dec,  Feb.  24,  1905,  48  S. 
and  A.  Memo.,  492;  see  also  Comp.  Dec,  Oct. 
2,  1905,  55  S.  and  A.  Memo.,  1.) 

For  other  cases  concerning  status  of  Marine 
Corps,  see  notes  to  sections  761,  1418,  and  1621, 
Revised  Statutes. 


557 


Sec.  1422. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Detention  of  men  enlisted  outside  the 
United  States. — EnlisU'd  men  of  the  insular 
force  are,  in  contemplation  of  law,  enlisted 
men  or  apprentices  of  the  U.  S.  Navy,  and 
therefore  are  entitled  to  the  one-fourtli  addi- 
tional pay  provided  for  by  section  1422,  Re\ised 
Statutes,  when  detained  in  the  sei-vice  after  ex- 

Eiration  of  their  term  of  enlistment.  (12  Comp. 
>ec.,  189;  see  also  note  to  sec.  1417,  K.  S.) 

Alien  Chinese  enlisted  without  the  limits  of 
the  United  States  are  entitled  to  the  additional 
pay  provided  by  this  section  when  detained  in 
service  under  the  conditions  specified  therein. 
(23  Comp.  Dec,  GO.) 

Detention  of  mates. — See  note  to  section 
1408,  Revised  Statutes,  under  "  Pay  and  allow- 
ances of  mates." 

Detention  of  enlisted  men  on  shore 
duty. — The  practice  has  not  been  to  allow  the 
one-fourth  additional  pay  to  marines  when  de- 
tained on  shore  duty,  but  only  when  employed 
on  vessels  of  the  Navy  and  detained  after  the 
expiration  of  the  term  of  their  enlistment,  upon 
thetheory  that  section  1422  appliesonly  to  those 
persons  attached  to  vessels  of  the  Navy.  If  the 
question  were  a  new  one,  unaffected  by  a  settled 

Eractice  of  some  years'  continuance,  it  would 
e  open  to  doubt  whether,  in  order  to  entitle  a 
marine  to  the  extra  comjiensation  allowed  by 
this  law  for  detention  in  the  8er\'ice  beyond  the 
term  of  his  enlistment,  he  should  be  serving 
upon  and  attached  to  a  vessel  during  said 
period  of  detention.  (Comp.  Dec,  Feb.  24, 
1905,  48  S.  and  A.  Memo.,  492;  see  also  Comp. 
Dec,  Sept.  1,  1905,  55  S.  and  A.  Memo.,  1.) 

This  statute  contemplates  service  upon  and 
attachment  to  a  vessel  during  the  period  of  de- 
tention in  service  beyond  the  expiration  of  the 
term  of  enlistment.  Enlisted  men  of  the  Navy 
detained  at  shore  stations  beyond  the  expiration 
of  their  terms  of  enlistment  are  not  entitled  to 
the  one-fourth  additional  pay  provided  by  sec- 
tion 1422,  Revised  Statutes.  If  the  enlisted 
men  of  the  Navy  were  attached  to  a  vessel,  it 
would  make  no  difference  whether  the  deten- 
tion was  in  port  or  at  sea,  but  in  the  case  pre- 
sented the  men  were  detached  from  their  vessels 
and  stationed  on  shore.  (Comp.  Dec,  Sept.  1, 
1905,  55  S.  and  A.  Memo.,  1;  see  also  Comp. 
Dec,  May  23,  1916,  file  26254-1969:1. ) 

Under  the  decisions  and  practice  this  statute 
is  applicable  aUke  to  marines  and  enUsted  men 
of  tne  Navy.  All  persons  coming  within  the 
pur\iew  of  the  statute  must  necessarily  be  on 
the  same  footing.  If  marines  detained  on  shore 
duty  beyond  the  expiration  of  their  terms  of 
enlistment  are  not  entitled  to  the  one-fourth 
additional  pay,  then  it  necessarily  follows 
that  enlisted  men  of  the  Navy,  who  are  gov- 
erned by  the  same  law,  are  not  entitled  to  such 
pay  while  detained  on  shore  stations,  (Comp. 
Dec,  Sept.  1,  1905,  55  S.  and  A.  Memo.,  1.) 

An  enhsted  man  carried  on  the  roll  of  the 
United  States  naval  station,  Olongapo,  P.  I., 
but  attached  to  and  performing  duty  on  board 
the  U.  S.  S.  General  Alava,  is  entitled  to  one- 
fourth  additional  pay  for  detention  beyond  the 
expiration  of  his  term  of  enlistment.  The  ship 
named  is  not  in  commission  in  the  ordinary 
sense  of  the  term,  but  has  the  status  of  a  yard 
craft  and  is  used  principally  as  a  ferry  between 
Cavite  and  Olongapo,  making  three  trips  a  week 


when  weather  permits.  This  vessel,  as  well  as 
the  naval  station  at  Olongapo,  is  under  the  juris- 
diction and  command  of  the  commander  in 
chief  of  the  Asiatic  fleet.  (Comp.  Dec,  May 
23,  1916,  file  26254-1969:1.) 

Detention  of  enlisted  man  under  court- 
martial  sentence. — By  sections  1422,  1423, 
and  1424  of  the  Revised  Statutes,  Congress  has 
pro^•idc'd  that  in  certain  cases  of  emergency 
enlisted  men  of  the  Navy  may  be  held  in  serv- 
ice for  limited  periods  beyond  their  enlist- 
ments, but  the  law  does  not  authorize  their 
detention  for  any  longer  time  or  for  any  other 
purpose,  and  the  implication  is  that  a  detention 
other  than  in  the  manner  there  stated  would  be 
illegal.  Where  jurisdiction  of  a  court-martial 
has  attached,  it  will  continue  for  all  purposes  of 
trial,  sentence,  and  the  execution  of  the  sen- 
tence, although  in  the  meantime  the  term  of  en- 
listment of  accused  should  expire.  But  if  when 
accused's  term  of  enlistment  expired  he  was  in 
confinement,  undergoing  punishment  in  obedi- 
ence to  the  sentence  of  the  court-martial  for  the 
offenses  of  which  he  was  accused,  such  impris- 
onment and  punishment  would  not  be  such  a 
holding  of  him  in  the  service  beyond  the  term 
of  his  enlistment  as  would  entitle  him  to  re- 
ceive thereafter  pay  and  allowances  which  are 
given  by  law  as  compensation  for  personal 
services,  nor  could  it  be  regarded  as  holding  him 
in  the  naval  service  within  the  meaning  of  any 
law  entitling  him  to  receive  pay  for  such  serv- 
ice. Accordingly,  held  that  the  payment  to 
an  enhsted  man  of  the  Navy  who  was  sentenced 
by  court-martial  to  imprisonment  for  a  speci- 
fied term,  extending  beyond  his  term  of  enlist- 
ment, with  forfeiture  of  pay  and  allowances  of 
an  amount  excepted  from  forfeiture,  is  not 
authorized  after  the  expiration  of  the  term  of 
his  enlistment,  although  he  was  not  discharged 
until  the  expiration  of  his  term  of  confinement. 
(9  Comp.  Dec,  257,  affirming  Comp.  Dec, 
Nov.  22,  1902,  13  S.  and  A.  Memo.,  126.  But 
see  act  Feb.  16,  1909,  sec.  13,  35  Stat.,  622.) 

The  Navy  Department  has  authority  to  re- 
tain a  general  court-martial  prisoner  to  serve 
out  his  sentence  after  his  enlistment  has  ex- 
pired and  he  has  been  given  a  discharge  from 
the  service.     (File  26504-102,  Mar.  1,  1910.) 

A  general  court-martial  prisoner  may  be  tried 
by  summary  court-martial  or  deck  court  prior 
to  the  expiration  of  his  period  of  enlistment, 
and  may  afterwards  be  held  to  serve  out  the 
sentence  imposed  by  such  court,  irrespective 
of  whether  or  not  his  enlistment  expires  in 
the  meantime.  (File  26504-100,  Dec.  21, 
1910;  as  to  trial  by  court-martial  of  prisoners 
for  offenses  committed  after  expiration  of  en- 
listment, see  file  2650^259,  Mar.  12,  1918, 
recommending  legislation.) 

An  enlisted  man  who  absented  himself  with- 
out authority,  and  remained  so  absent  until 
after  expiration  of  his  enlistment,  may  be  tried 
by  summary  court-martial  and  sentenced  to 
perform  extra  police  duties,  and  may  be  re- 
tained in  the  service  for  the  purpose  of  execut- 
ing such  sentence.    (See  20  Comp.  Dec,  751.) 

An  enhsted  man  detained  in  the  service  after 
expiration  of  enlistment  to  serve  a  sentence  of 
imprisonment  for  desertion  was  restored  to 
duty  on  probation  prior  to  completion  of  sen- 
tence.    Held,  entitled  to  pay  during  probation- 


558 


The  Navy. 


Pt.  2.  REVISED  STATUTE.'^. 


Sec.  1422. 


ary  period.  (Comp.  Dec,  Nov.  20,  1908,  93 
S.  and  A.  Memo.,  896.) 

See  also  note  to  section  1418,  Revised  Statutes, 
under  "Detention  of  men  after  expiration  of 
enlistment." 

Detention  of  enlisted  man  on  account 
of  physical  disability. — On  date  of  expiration 
of  enlistment  an  enlisted  man  of  the  Navy  was 
serving  in  foreign  waters  and  temporarily  dis- 
abled from  disability  incurred  in  line  of  duty, 
and  continued  on  ship  from  such  date,  January 
26,  1912,  to  February  15,  1912,  wHen  he  re- 
enlisted  thereon  for  a  full  term.  Held^  that 
for  period  intervening  between  expiration  of 
enUstment  and  reenUstment  he  may  be  paid 
one-fourth  additional  pay,  if  commanding  offi- 
cer shall  certify  that  he  detained  the  man  as 
"essential  for  the  public  interests, "  under  sec- 
tion 1422  Revised  Statutes.  (18  Comp.  Dec, 
724.) 

An  enlisted  man  detained  in  a  hospital  on  a 
foreign  station  after  expiration  of  enUstment 
and  upon  recovery  transferred  to  duty  on  board 
another  vessel  and  later  transferred  to  the 
United  States  for  discharge,  is  entitled  to  bene- 
fits of  this  section.  (Comp.  Dec,  Jan.  6,  1917, 
file  26254-2169.) 

The  regulations  for  many  years  have  con- 
tained a  provision  that  the  pay  of  an  enlisted 
man  under  treatment  in  a  hospital  on  a  foreign 
station  "continues  until  he  is  regularly  dis- 
charged from  the  service,  even  after  his  term 
of  enlistment  has  expired.''  (File  26251- 
5447,  Dec.  8,  1911,  citing  art.  792,  par.  7,  Navy 
Regs.  1909;  Comp.  Dec,  Aug.  18,  1903,  31  S. 
and  A.  Memo.,  242.  See  also  Art.  R-3582 
(7),  Navy  Regs.,  1913.) 

An  enlisted  man  at  a  hospital  in  the  United 
States  should  be  discharged  upon  the  expira- 
tion of  his  enlistment,  and  in  such  case  the  man 
should,  if  necessary,  be  retained  for  further 
treatment.  If  retained,  he  does  not  lose  his 
right  to  transportation  to  his  home,  if  he  has  it 
otherwise.  (File  2274-04;  727-00;  303-5-98.  By 
article  3582(8),  Navy  Regs.,  1913,  as  amended 
by  C.  N.  R.  No.  11,  Dec.  1,  1918,  it  was  pro- 
\ided  that  "enlisted  men  held  for  treatment  at 
a  hospital  after  expiration  of  enlistment  are 
held  for  the  convenience  of  the  Government,  and 
entitled  to  pay  and  allowances  until  date  of 
actual  discharge  from  the  ser'vice.") 

No  legal  objection  exists  to  payment  from  the 
naval  hospital  fund,  at  the  rate  of  30  cents  per 
day,  to  the  Army  and  Navy  General  Hospital 
in  the  cases  of  discharged  enlisted  men  of  the 
Navy  and  Marine  Corps  retained  for  treatment 
after  expiration  of  their  enlistments.  (File 
22857-12:3,  Jan.  17,  1912.) 

Detention  of  enlisted  man  for  period 
necessary  to  travel  home. — An  enlisted 
man  in  the  Navy  detained  in  the  service  for  five 
days  after  the  expiration  of  enhstment  period, 
while  on  board  an  Army  transport  en  route  from 
Cavite,  P.  I.,  to  San  Francisco,  Cal.,  for  dis- 
charge, is  not  entitled  to  one-fourth  additional 
pay  provided  by  section  1422,  Revised  Statutes, 
as  amended  by  act  of  March  3,  1875  (18  Stat., 
484).    (20  Comp.  Dec,  37.) 

The  statute  provides  two  alternatives:  First, 
to  return  the  man  to  the  United  States  at  the 
expiration  of  his  enlistment  or  as  soon  there- 
after as  may  be,  and,  second,  when  his  ser\'ices 


are  essential  to  the  public  interests,  to  detain  him 
in  the  service.  The  commanding  officer  in  thia 
case  acted  upon  the  first  alternative  and  sent 
the  man  to  the  United  States  by  an  Army  trans- 
port and  before  the  expuation  of  his  enlistment. 
The  second  alternative  of  detaining  him  in  the 
service  was  evidently  not  deemed  essential  to 
the  public  interests.  During  the  five  days  for 
which  the  one-fourth  additional  pay  is  claimed 
the  man  was  not  performing  the  duties  of  his 
rating,  but  was  traveling  home  for  discharge  as 
a  passenger  on  an  Army  transport.  (20  Comp. 
Dec,  37.) 

Detention  of  enlisted  man  at  his  own 
request. — When  an  enlisted  man  is  detained 
in  the  service  beyond  the  expiration  of  his  en- 
listment, at  his  own  request,  although  detained 
longer  than  he  requested,  this  is  not  such  a  d<e- 
tention  as  contemplated  by  section  1422,  Re- 
vised Statutes,  but  the  additional  detention  is 
incidental  to  and  the  result  of  the  detention 
granted  at  his  request.  (Comp.  Dec,  July  24, 
1907,  77  S.  and  A.  Memo.,  410.) 

Where  the  enlistment  of  an  enlisted  man  of 
the  Navy  expires  while  the  vessel  on  which  he 
is  serving  is  making  a  voyage,  and  he  is  per- 
mitted at  his  own  request  to  remain  on  the  ves- 
sel until  it  returns  to  the  United  States,  he  is 
not  detained  in  the  service  within  the  meaning 
of  section  1422,  Revised  Statutes,  and  is  not  en- 
titled to  one-fourth  additional  pay  thereunder. 
(15  Comp.  Dec,  883.) 

The  words  "detention"  and  "detained"  as 
used  in  the  statute  clearly  imply  the  use  of 
force,  physical  or  moral.     (15  Comp.  Dec,  883.) 

The  said  statute  provides  for  the  payment  of 
one-fourth  additional  pay  for  service  beyond 
the  expiration  of  their  terms  of  enlistment,  of 
two  classes  of  enUsted  men,  viz:  First,  those 
whose  terms  of  enlistment  expire  while  away 
from  the  United  States,  and  who,  after  the  ter- 
mination of  their  enlistment,  voluntarily  re- 
enter to  serve  until  the  return  to  an  Atlantic  or 
Pacific  port  of  the  vessel  to  which  they  belong; 
second,  those  whose  terms  of  enlistment  expire 
while  they  are  away  from  the  United  States, 
and  who  desire  to  go  to  the  coast  of  the  United 
States  on  which  they  enhsted  at  the  expiration 
of  their  terms  of  enlistment,  but  who  are  de- 
tained in  the  service  for  the  public  interests. 
(15  Comp.  Dec,  883.} 

Detention  of  enlisted  man  awaiting  dis- 
charge papers. — An  enlisted  man  was  on  re- 
cruiting duty  when  his  enlistment  expired, 
November  16,  1906,  and  his  discharge  papers 
were  not  received  by  him  until  November  30, 
1906.  In  the  meantime  he  continued  on  duty, 
and  reenhsted  December  1, 1906,  the  next  day 
after  receiving  his  discharge:  Held,  that  he 
was  in  the  ser\ice  and  properly  entitled  to  a  dis- 
charge on  November  30,  1906,  to  take  effect  on 
that  date;  that  there  was  no  authority  of  law  for 
antedating  his  discharge  and  reenlistment  to 
November  16  and  17,  1906,  respectively,  and 
that  it  is  not  only  legal  but  entirely  proper  that 
the  records  should  be  corrected  so  as  to  show 
that  he  was  discharged  by  reason  of  expiration 
of  enhstment  on  November  30,  1906,  and  re- 
enhsted the  following  day,  thereby  bringing 
him  within  the  provisions  of  article  1134,  para- 
graph 7,  Navy  Regulations,  1909,  allowing  addi- 
tional pay  to  men  reenUsting  after  November 


559 


Sec.  1422. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


27,  1906.  (File  7657-65,  Dec.  15, 1909;  compare 
U.  S.  V.  Travera,  Fed.  Cas.  No.  16537,  noted 
under  Constitution,  Art.  I,  sec.  8,  clause  14, 
"Persons  not  subject  to  jurisdiction  of  Federal 
courts-martial ;"  see  also  file  7657-295,  noted 
under  sec.  1418,  R.  S.,  "Detention  of  men  after 
expiration  of  enlistment.") 

Detention  of  enlisted  men  indebted  to 
United  States.— Where  a  man  through  allot- 
ment of  pay  has  overdrawn  his_  account,  hdd 
that  "there  is  no  law  or  regulation  warranting 
the  retention  of  the  man  in  the  service  after  the 
expiration  of  his  enlistment,  provided  the  ves- 
sel is  in  a  United  States  port,  butif  itisin  his 
power  to  return  the  money  and  he  fails  to  do  it, 
he  might  be  hold  for  court-martial."  (File 
3015-04;  see  also  file  1245-01.) 

It  is  not  regarded  as  good  economy  to  retain  a 
man  in  the  service  who  has  been  sentenced  to 
bad-conduct  discharge  and  who  is  in  debt  to  the 
Government,  merely  in  order  that  he  may  be 
able  to  earn  sufficient  money  to  cancel  his  in- 
debtedness. Such  men  are  accordingly  dis- 
charged, notwithstanding  the  state  of  their  ac- 
counts. (File  9770-01,  Dec.  27,  1901.  That 
discharge  of  man  before  having  been  fully 
checked  amount  of  sentence,  operates  as  im- 
plied remission  of  sentence,  see  Comp.  Dec, 
Apr  0',  1914,  158  S.  and  A.  Memo.,  3035,  noted 
under  sec.  236,  R.  S.,  "VI.  Set-off. "_  That 
permitting  man  to  extend  enlistment,  instead 
of  discharging  him  under  such  circumstances, 
does  not  operate  as  implied  remission,  see  file 
26806-131:44,  Aug.  11,  1916.) 

An  enUated  man  was  overpaid  on  discharge. 
Immediately  afterwards  the  error  was  discovered 
by  the  pay  officer,  who  induced  the  man  to  re- 
turn to  the  ship  and  requested  the  commanding 
oflScer  to  detain  the  man  until  he  refunded 
amount  of  overpa>Tnent  or  had  been  required 
to  u-ork  same  off.  Held,  that  commanding 
officer  correctly  ruled  that  he  had  no  authority 
to  detain  the  man  under  such  circumstances. 
(File  26254-70.  July  8, 1908;  see  also  file  26251- 
3352:1.) 

Detention  of  enlisted  men  in  other 
cases. — See  note  to  section  1418,  Revised  Stat- 
utes, under  "Detention  of  men  after  expiration 
of  enlistment." 

Place  to  which  transportation  should  be 
furnished.— The  pro\'ision  of  section  1422, 
Revised  Statutes,  which  requires  that  enlisted 
men  in  the  Navy  who  so  desire  shall,  at  the 
expiration  of  their  terms  of  enlistment,  be 
returned  to  the  coast,  either  the  Atlantic  or 
Pacific,  on  which  they  enlisted,  does  not 
require  that  they  shall  be  sent  to  the  particular 
port  at  which  they  enlisted,  nor  authorize 
furnLshinff  them  transportation  thereto. 
(4  Comp.  Dec.,  390.) 

This  8e<;tion  was  evidently  intended  to 
prevent  the  discharge  of  persons  enlisting  in 
the  Navy  in  a  foreign  port,  when  they  desired 
to  be  returned  to  the  United  States.  There  is 
nothing  to  show  the  intention  that  persons 
whose  terms  of  enlistment  were  about  to  expire 
should  be  transported  to  the  particular  port  of 
their  enlistment.     (4  Comp.  Dec,  390.) 

Atlantic  ports  are  mentioned  in  the  law  in 
connection  with  Pacific  ports.  Both  terms  are 
used  generically,  and  include  not  only  ports 
confronting  on  the  ocean,  but  also  those  situ- 


ated upon  the  gulfs  and  bays  of  either  coast. 
Within  the  meaning  of  the  law  a  gulf  port  ia 
an  Atlantic  port,  and  a  man  discharged  at  Port 
Tampa  is  not  entitled  to  be  transported  to  any 
other  Atlantic  port.     (4  Comp.  Dec,  390.) 

Prior  to  July  1,  1902,  all  tran.sportation  for 
enlisted  men  of  the  Navy  was  paid  from  appro- 
priations usually  made  in  general  terms,  as 
"for  the  transportation  of  enlisted  men  and 
bovs  at  home  and  abroad,  and  of  officers  accom- 
panjang  them"  (31  Stat.,  1109),  and  the 
payments  were  governed  as  to  discharged  men 
by  section  1422,  Revised  Statutes,  and  Navy 
regulations.  The  naval  appropriation  act  of 
July  1,1902  (32  Stat.,  664),  pro\aded:  "Bureau 
of  Navigation:. Transportation,  *  *  *  trans- 
portation and  subsistence  en  route  to  their 
homes,  if  residents  of  the  United  States,  of 
enlisted  men  and  apprentices  discharged  on 
medical  sin-vey;  transportation  and  subsistence 
en  route  to  the  place  of  enlistment,  if  residents 
of  the  United  States,  of  enlisted  men  and 
apprentices  discharged  on  account  of  expiration 
of  enlistment  *  *  *. "  A  like  appropria- 
tion was  made  in  the  same  terms  by  subsequent 
annual  appropriation  acts.  These  acts  specify 
the  conditions  under  which  transportation 
and  subsistence  shall  be  fiunished  enlisted  men 
and  apprentices  on  discharge,  and  supersede 
any  regulations  in  conflict  with  them.  (11 
Comp.  Dec,  336.)  [The  deficiency  appropria- 
tion act  of  March  3,  1901  (31  Stat.,  1030),  pro- 
vided that  transportation  to  their  homes,  if 
residents  of  the  United  States,  of  enlisted  men 
and  apprentices  discharged  on  medical  survey, 
and  the  transportation  to  place  of  enlistment, 
if  residents  of  the  United  States,  of  enlisted  men 
and  apprentices  discharged  on  account  of  ex- 
piration of  enlistment,  shall  hereafter  be 
chargeable  to  the  appropriation  "Transporta- 
tion, recruiting,  and  contingent."] 

An  enlisted  man  of  the  Navy,  whose  home 
is  in  Porto  Rico,  is  a  resident  of  the  United 
States  within  the  meaning  of  the  j^rovision  in 
the  annual  appropriation  for  the  transportation 
to  their  homes  of  enlisted  men  of  the  Navy  on 
discharge  from  the  service.  (11  Comp.  Dec, 
336.) 

How  additional  pay  computed. — The  one- 
fourth  additional  pay  pro\'ided  by  section  1422, 
Revised  Statutes,  for  enlisted  men  of  the  Navy 
detained  in  the  service  beyond  the  term  of 
their  enlistment  should  be  computed  upon  the 
basis  of  the  total  pay,  extra  as  well  as  regular, 
which  they  would  otherwise  have  received. 
(11  Comp.  Dec,  575.) 

In  other  words,  the  one-quarter  increase 
follows  the  pay  given  for  the  duties  he  may  be 
required  to  perform,  whether  they  be  regular 
duties  covered  by  the  regular  pay,  or  special 
duties  for  which  extra  pay  is  pro\dded.  (11 
Comp.  Dec,  575.) 

If,  then,  an  enlisted  man  detained  as  specified 
in  section  1422,  performs  under  detail  the  duties 
of  gun  pointer,  gun  captain,  signalman,  mess- 
man,  or  other  detail  of  similar  character,  the 
extra  pay  allowed  in  such  cases  should  be  in- 
cluded in  making  up  the  total  pay  upon  which 
the  one-fourth  additional  is  to  be  computed. 
(11  Comp.  Dec,  575.) 

The  words  "former  jjay"  as  used  in  section 
1422,  Re^ised  Statutes,  do  not  in  the  case  of 


560 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1422. 


a  marine  include  the  20  per  cent  extra  pay 
allowed  for  service  in  time  of  war  to  enlisted 
men  of  the  Army  by  act  of  April  26,  1898  (30 
Stat.  365).     (5  Comp.  Dec,  524.) 

In  computing  the  one-fourth  additional  pay 
a  marine  is  not  entitled  to  include  one-fourth 
of  the  additional  pay  allowed  for  foreign 
service.  (Comp.  Dec,  Feb.  24,  1905,  48 
S.  and  A.  Memo.,  492;  see  also  Comp.  Dec, 
Sept.  1,  1905,  55  S.  and  A.  Memo.,  1.) 

Certificate  of  commanding  officer  neces- 
sary.— In  cases  of  detention,  the  commanding 
officer  by  whose  order  the  detention  is  made 
is  the  proper  officer  to  certify  that  such  deten- 
tion was  essential  to  the  public  interests.  (20 
Comp.  Dec,  37;  see  also  18  Comp.  Dec,  724.) 

Additional  pay  can  not  be  waived. — An 
enlisted  man  of  the  Navy  detained  in  service 
under  section  1422,  Re\dsed  Statutes,  does  not 
lose  his  right  to  the  additional  pay  authorized 
in  that  section  for  the  period  of  detention 
solely  because  he  had  voluntarily  attempted 
to  waive  his  right  to  such  pay,  since  such 
attempted  waiver  is  of  no  legal  force  or  effect. 
(23  Comp.  Dec,  249.) 

Transportation  may  be  waived. — The 
Re\ised  Statutes,  section  1422,  make  it  the 
duty  of  the  commanding  officer  of  a  fleet, 
squadron,  or  vessel,  to  send  to  an  Atlantic 
or  Pacific  port  enlisted  men,  as  their  terms 
of  enlistment  expire,  '  'in  some  public  or  other 
vessel,"  "aa  soon  thereafter  as  may  be,  unless, 
in  his  opinion,  the  detention  of  such  persons 
for  a  longer  period  should  be  essential  to  the 
public  interests."  This  is  not  equivalent  to 
a  statutory  salary,  and  may  be  voluntarily 
waived  by  the  enlisted  man  in  consideration 
of  his  being  allowed  to  remain  on  board  the 
vessel  when  she  is  about  to  sail  to  a  foreign 
station.  (Hunt  v.  U.  S.,  38  Ct.  Cla.,  135, 
approving  5  Comp.  Dec,  514.) 

An  enlisted  man  in  the  Navy  who,  in  con- 
sideration of  his  being  allowed  to  remaLa  on 
his  vessel,  then  about  to  proceed  to  Asiatic 
waters,  gives  a  waiver  of  all  claim  to  transporta- 
tion home  should  he  refuse  to  reenlist  and  be 
discharged  in  a  foreign  port,  can  not  maintain 
an  action  for  the  value  of  such  transportation. 
(Hunt  V.  U.  S.,  38  Ct.  Cls.,  135,  approving 
5  Comp.  Dec,  514.) 

An  apprentice  of  the  Navy,  having  been 
transferred  from  one  vessel  to  another  upon  his 
request  and  upon  his  waiver  of  his  right,  on 
discharge  in  a  foreign  port,  to  transportation 
to  the  United  States,  is  not  entitled  to  reim- 
bursement of  the  cost  of  such  transportation 
procured  by  himself.     (9  Comp.  Dec,  5.) 

The  question  here  presented  is  not  whether 
the  Secretary  of  the  Navy  has  the  power  to 
diminish  or  increase  claimant's  pay  while  in 
the  service,  which  is  the  compensation  fixed 
and  established  by  law  and  given  in  considera- 
tion of  and  as  compensation  to  claimant  for 
his  personal  services.  No  such  question  is 
involved.  The  claimant  having  executed  a 
proper  agreement  of  waiver,  on  account  of 
which  he  secured  said  transfer,  and  having 
received  the  benefit  of  such  an  agreement,  the 
Government  was  under  no  obligation,  under 
the  circumstances,  to  furnish  him  transporta- 
tion to  his  home  or  place  of  enlistment.  (9 
Comp.  Dec,  5.) 


Detention  of  man  operates  as  extension 
of  his  existingf  enlistment. — ^\^lere  a  man 
is  detained  in  the  Navy  under  section  1422, 
Revised  Statutes,  his  existing  contract  of  en- 
listment continues  in  full  force  and  effect, 
and  does  not  expire  until  his  "regular  dis- 
charge." (File  26254-1227:1,  Nov.  19,  1913; 
20  Comp.  Dec,  377,  modifying  19  Comp. 
Dec,  819.) 

Wlien  a  man  is  detained  under  this  section 
because  his  service  is  essential  to  the  public 
interests,  the  detention  is  a  prolongation  of  the 
four-year  term,  and  the  four-year  term  still 
exists  and  continues  to  exist  so  long  as  the 
detention  is  authorized  by  the  statute.  If  the 
commanding  officer  certifies  that  the  detention 
was  essential  to  the  public  interests,  the  man's 
enlistment  was  properly  extended,  under  the 
act  of  August  22,  1912  (37  Stat.,  331),  on  the 
date  that  the  period  of  his  detention  expired, 
and  for  one  year  from  that  date.  (20  Comp. 
Dec,  377.) 

The  contract  of  enlistment  contains  the  fol- 
lowing  provision:  "Secondly,    I    oblige   and 

subject  myself  to  serve  fom*  years  from  — , 

19 — ,  unless  sooner  discharged  by  proper 
authority,  and  on  the  conditions  provided  by 
the  act  of  Congress  '  To  amend  section  fourteen 
hundred  and  twenty-two  of  the  Revised  Stat- 
utes of  the  United  States,  relating  to  the  better 
government  of  the  Navy,'  approved  March  3, 
1875,  in  the  following  words,  to  wit:  *  *  * 
And  I  also  oblige  myself,  during  such  service, 
to  comply  with,  and  be  subject  to,  such  laws, 
regulations,  and  discipline  of  the  Navy  aa  are 
or  shall  be  established  by  the  Congress  of  the 
United  States  or  other  competent  authority 
*  *  *."  This  contract  is  the  same  as  that 
entered  into  by  all  persons  enlisting  in  the 
Navy  with  the  exception  of  those  enlisted  for 
minority,  and  it  is  commonly  referred  to  as  a 
four-year  contract  of  enlistment  to  distinguish 
it  from  enlistments  for  minority.  It  will  be 
noted,  however,  that  the  term  of  enlistment 
under  the  contract  quoted  is  not  for  the  defi- 
nite term  of  four  years;  but,  on  the  contrary, 
it  is  expressly  made  "on  the  conditions  pro- 
vided by  the  act  of  Congress"  quoted  in  the 
enlistment  contract.  One  of  the  very  impor- 
tant "conditions"  enumerated  in  said  act, 
which  extends  and  renders  indeterminate  the 
expiration  of  the  so-called  four-year  term  of 
enlistment,  is,  it  will  be  noted,  that  the  com- 
manding officer  may,  in  his  discretion,  detain 
any  enlisted  man  beyond  the  expiration  of  the 
period  stated  in  the  enlistment  contract, 
under  the  circumstances  stated  in  the  law. 
During  such  time  as  the  man  is  so  detained  he 
is,  under  the  explicit  terms  of  the  law,  "sub- 
ject in  all  respects  to  the  laws  and  regiilations 
for  the  government  of  the  Navy"  until  his 
"regular  discharge."  Hence,  the  period  of 
enlistment  could,  at  the  discretion  of  the 
Government,  in  accordance  with  the  terms  of 
the  contract  and  the  law  quoted  therein,  be 
either  greater  or  less  than  the  specified  term  of 
four  years,  and  in  the  event  of  detention  beyond 
the  stated  term  of  four  years  the  enlistment 
contract  was  to  continue  in  full  force  and  effect 
until  the  man's  "regular  discharge."  (File 
26254-1227:1,  Nov.  19,  1913;  20  Comp.  Dec, 
377.) 


561 


Sec.  1426. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


The  status  of  an  enlisted  man  detained  by  au- 
thority of  section  1422,  Revised  Statutes,  is 
just  such  as  referred  to  by  the  Attorney  Gen- 
eral (15  Op.  Atfy.  Gen.,  152,  Ifil)  as  an  excep- 
tion to  the  rule  that  a  man  who  enlists  for  a 
definite  period  is  relieved  of  his  obligation  to 
serve  at  the  end  of  the  period.  The  Attorney 
General  stated  in  part:  'Consequently,  unless 
there  exists  some  law  when  the  contract  is 
entered  into  providing  for  a  contingent  pro- 
longation of  the  terra  beyond  the  period  fixed 
by  the  statute,  and  the  contingency  happen 
within  the  term    *    *    *    with  the  last  dav 


of  the  term  his  engagement  necessar.ly  expires, 
and  with  the  expiration  of  his  engagement  the 
obligation  to  serve  thereby  imposed  is  also  at 
an  end."     (20  Comp.  Dec,  371.) 

Reentering  to  serve  is  a  nevr  enlist- 
ment.— When  a  man  under  this  section  reenters 
to  serve  until  the  return  of  the  vessel,  it  is  a 
reenlistment,  and  he  can  not  dui-ing  the  period 
of  such  reenlistment  extend  his  enlistment  as 
proA-ided  by  the  act  of  August  22,  1912  (37 
Stat.,  331),  as  that  act  requires  the  extension 
be  made  during  the  existing  four-j^ear  term  of 
enlistment.     (20  Comp.  Dec,  377.) 


Sec.  1423.  [Enlisted  men  subject  to  regulations  while  sent  home  or  detained. 
Superseded.] 

This  section  provided  as  foUo-ws: 

"Sbc.  1423.  All  persons  sent  home,  or 
detained  by  a  commanding  officer,  according 
to  the  proAisions  of  the  preceding  section,  shall 
be  subject  in  all  respects  to  the  laws  and  regu- 
lations for  the  government  of  the  Navy,  until 
their  return  to  an  Atlantic  port  and  their  regu- 
lar discharge."— (17  July,  1862,  c.  204,  s.  17, 
V.  12,  p.  610.) 

Sec.  1424.  [Enlisted  men,  limit  of  detention.     Superseded.] 


It  was  superseded  by  act  of  !March  3,  1875 
(18  Stat.,  484),  which  amended  section  1422, 
Revised  Statutes,  and  embodied  proA^sions 
superseding  tliis  section  and  sections  1424  and 
1425.     See  the  existing  provisions  of  section 


1422  as  given  above 


This  section  provided  as  follows: 

"Sec.  1424.  Persons  so  detained  by  a  com- 
manding officer,  or  reentering  to  serve  until 
the  return  to  an  Atlantic  port  of  the  A-essel  to 
which  they  belong,  shall  in  no  case  be  held  in 
service  more  than  thirty  days  after  their  arrival 
in  said  port."— (17  July,  1862,  c.  204,  s.  17, 
v.  12,  p.  610.) 

Sec.  1425.  [Enlistment,  shipping  articles  to  contain  provisions  of  preceding 
sections.     Superseded.] 


It  was  superseded  by  act  of  Alarch  3,  1875 
(18  Stat.,  484),  which  amended  section  1422, 
Revised  Statutes,  and  embodied  provisions 
superseding  also  sections  1423-1425,  Revised 
Statutes.  See  the  existing  provisions  of  sec- 
tion 1422  as  given  above. 


vised  Statutes,  and  embodied  provisions  super- 
seding also  sections  1423-1425,  Revised  Stat- 
utes, and  likewise  superseding  section  1572, 
Revised  Statutes,  referred  to  in  this  section, 
which  contained  a  provision  for  additional  pay 
to  men  detained  after  expiration  of  enlistment 
in  accordance  with  section  1422. 


This  section  provided  as  follows: 

"Sec.  1425.  The  shipping  articles  shall  con- 
tain the  substance  of  the  three  sections  next 
preceding  and  of  section  fifteen  hundred  and 
seventy-two."— (17  July,  1862,  c.  204,  s.  17, 
V.  12,  p.  610.) 

It  was  superseded  by  act  of  March  3,  1875 
(18  Stat.,  484),  which  amended  section  1422,  Re- 

Sec.  1426.  [Enlisted  men,  honorable  discharge  of.]  Honorable  discharges 
may  be  granted  to  seamen,  ordinary  seamen,  landsmen,  firemen,  coal-heavers, 
and  boys  who  have  enlisted  for  three  years. —  (2  Mar.,  1855,  c.  136,  s.  1,  v.  10, 
p.  627.     7  June,  1864,  c.  Ill,  v.  13,  p.  120.) 


Amendment  to  this  section  was  made  by  joint 
resolution  of  June  11,  1896  (29  Stat.,  476), 
which  extended  the  provisions  of  section 
1426  to  "all  enlisted  persons  in  the  Nav-y"; 
and  by  act  of  August  29, 1916  (39  Stat.,  560), 
which  authorized  honorable  discharge  of 
men  who  had  served  one  year  of  a  first  en- 
listment. The  latter  act  was  repealed  by 
act  of  March  4,  1917  (39  Stat.,  1171). 

As  to  term  of  enlistment  in  the  Navy,  see  sec- 
tion 1418,  Revised  Statutes,  and  note 
thereto. 

Bad-conduct  discharges  to  enlisted  men  of  the 
Navy  and  Marine  Corps  are  authorized  by 


sentence  of  summarj^  court-martial  (sec. 
1624,  R.  S.,  art.  30,  as  amended  by  act  Feb. 
16,  1909,  sec.  8,  35  Stat.,  621);  and  also  by 
sentence  of  general  court-martial  (sec.  1624, 
_R.  _S.,  art.  35)._ 
Burial  in  any  national  cemetery,  free  of  cost, 
is  authorized  in  cases  of  sailors  or  marines 
dying  in  a  destitute  condition  after  having 
been  honorably  discharged  from  the  serv- 
ice; the  production  of  honorable  discharge 
of  a  deceased  man  is  sufficient  authority  for 
the  superintendent  of  any  cemetery  to  per- 
mit the  interment.  (Sec.  4878,  R.  S.,  as 
amended.) 


562 


The  Navy. 


rt.  2.  REVISED  STATUTES. 


Sec.  1426. 


Certificate  in  lieu  of  lost  discharge  was  author- 
ized to  be  furnished  to  persons  who  served 
in  the  Na^-v  or  Marine  Corps  in  the  War  of 
1812,  the  Mexican  War,  or  the  Ci\-il  War, 
by  act  of  February  7,  1890  (26  Stat.,  6).  _ 

Certificate  of  discharge  to  be  furnished  in  Civil- 
War  cases  where  charge  of  desertion  is  re- 
moved from  record  of  man  who  has  not  re- 
ceived a  certificate  of  discharge.  (Act 
Aug.  14,  1888,  sec.  4,  25  Stat.,  443,  revived 
and  reenacted  bv  act  Mav  24,  1900,  sec.  1, 
31  Stat.,  183.) 

Certificates  of  discharge  in  true  names  shall  be 
issued  to  persons  who  enlisted  or  served  un- 
der assumed  names  in  the  NaAy  during  the 
Ci\-il  War,  the  War  with  Spain,  the  Philip- 
pine Insurrection,  or  during  any  war  be- 
tween the  United  States  and  any  other  na- 
tion or  people,  and  were  honorablv  dis- 
charged. (Act  Apr.  14,  1890,  26  Stat,  55, 
as  amended  by  acts  June  25,  1910,  36  Stat., 
824,  and  Aug.  22,  1912,  37  Stat.,  324.) 

Compensation  under  War  Risk  Insurance  Act 
not  to  be  paid  in  cases  of  persons  dismissed 
or  receiAang  a  dishonorable  or  bad-conduct 
discharge  from  the  serAdce.  (Act  Oct.  6, 
1917,  sec.  308.  40  Stat.,  407.) 

Disability  not  in  line  of  duty,  refund  of  enlist- 
ment bounty  when  discharged  for,  may  be 
required  in  certain  cases.  (Act  Mar.  2, 
1907,  34  Stat.,  1176.) 

Discharge  of  minors  who  fraudulently  enlist  by 
swearing  falselv  as  to  their  aee  is  required 
by  act  of  March  3,  1915  (38  Stat.,  931), 
quoted  above  under  section  1418,  Re\dsed 
Statutes. 

Dishonorable  discharges  to  enUsted  men  of  the 
Na^y  and  Marine  Corps  are  authorized  by 
sentence  of  general  court-martial.  (See  sec. 
1624,  R.  S.,  art.  63.)  Dislionorable  dis- 
discharge  is  bar  to  compensation  under 
War  Risk  Insurance  Act.     (Act  Oct.   6, 

1917,  40  Stat.,  407;  see  also  act  June  25, 

1918,  40  Stat.,  609.) 

Forging,  counterfeiting,  or  falsely  altering  any 
certificate  of  discharge  from  the  military  or 
naval  ser^dce,  or  ha^'ing  same  in  jjossession, 
etc.,  punishable  by  fine  and  imprisonment. 
(Act  Mar.  4,  1917,  39  Stat.,  1182.) 

Gratuity  and  increased  pay  to  be  allowed  holder 
of  honorable  discharge  from  the  Naw  who 
reenUsts  within  four  months  after  such  dis- 
charge. (Sec.  1573,  R.  S.,  as  amended  by 
act  Mar.  3,  1899,  sec.  16,  30  Stat.,  1008,  and 
further  amended  and  reenacted  bv  act  Aug. 
22,  1912,  37  Stat.,  331.)  But  this  did  not 
apply  to  men  who  received  an  honorable 
discharge  after  completing  one  year  of  a 
first  enlistment,  as  authorized  by  act  Au- 
gust 29,  1916  (39  Stat.,  560),  which  act  was 
repealed  bv  act  March  4,  1917  (39  Stat., 
1171). 

Gratuity  of  $60  to  be  paid  all  persons  serving 
in  the  naval  forces  during  present  war 
who  have  resigned  or  been  discharged 
under  honorable  conditions,  or  in  the  cases 
of  reser'vdsts,  been  placed  on  inactive  duty. 
(Act  Feb.  24,  1919,  sec.  1405,  40  Stat., 
1151.) 

■  Home  on  board  any  receiving  ship,  and  one 
ration  per  day  drudng  a  period  of  four 
months  following  discharge,  to  be  fm-nished 
persons  honorably  discharged  as  authorized 


by  section  1429,  Re^dsed  Statutes.  (Act 
Feb.  8,  1889,  25  Stat.,  657,  as  amended  bv 
act  Mar.  3,  1899,  sec.  16,  30  Stat.,  1008,  and 
act  Aug.  22,  1912,  37  Stat.,  331.)  See  arti- 
cles R-3667  and  1-4551,  Na\-y  Regulations 
and  Instructions,  1913. 

Inaptitude,  refund  of  enlistment  bounty  when 
discharged  for,  mav  be  required  in  certain 
cases.   ^(Act  Mar.  2,  1907,  34  Stat.,  1176.) 

Mileage  allowed  to  men  honorably  discharged 
from  Na^^  or  Marine  Corps,  and  na-\'al 
reservists  honorably  released  from  active 
ser^dce.  (Act  June  3,  1916,  sec.  126,  39 
Stat.,  217,  as  amended  bv  act  Feb.  28, 
1919,  sec.  3,  40  Stat.,  1203.) 

National  Home  for  Disabled  Volunteer  Soldiers: 
Honorably  discharged  sailors  who  served  in 
the  regular  or  volunteer  forces  of  the  United 
States  in  time  of  war,  entitled  to  benefits  of 
National  Home.  (Acts  May  26,  1900,  31 
Stat.,  217;  Jan.  28,  1901,  sec.  5,  31  Stat., 
745;  Mar.  4,  1909,  35  Stat.,  1012.) 

Natm-alization:  Honorable  discharge  from  Na\y 
or  Marine  Corps  entitles  holder  to  certain 
pri\dleges  with  respect  to  naturalization. 
(Act  May  9,  1918,  40  Stat.,  542.) 

Ordinary  discharge  with  recommendation  for 
reenlistment  entitles  Filipino  to  apply  for 
naturalization  after  required  serAdce  in  the 
Navy.     (Act  May  9,  1918,  40  Stat.,  542.) 

Pensions:  Honorable  discharge  from  one  con- 
tract of  ser\dce  during  Ci^dl  War  held  for 
pension  purposes  to  be  honorable  discharge 
from  all  previous  contracts  of  ser^dce  during 
said  war.  (Joint  resolution,  June  28,  1906, 
34  Stat.,  836,  amending  joint  resolution, 
July  1, 1902,  32  Stat.,  750.)  Honorable  dis- 
charge necessary  for  receipt  of  pension  in 
certain  cases.  (Act  June  27,  1890,  sec.  2, 
26  Stat.,  182,  as  amended  by  act  Mav  9, 
1900;  act  Feb.  6, 1907,  34  Stat.,  879 ;  31  Sitat., 
170;  res.,  July  1,  1902,  sec.  1,32  Stat.,  750; 
sec.  4730,  R.  S.;  act  Jan.  29,  1887,  24  Stat, 
371;  act  Mar.  9,  1878,  20  Stat,  27,  etc.)  Pen- 
alty for  claim  agents,  attorneys,  etc.,  re- 
taining or  refusing  to  deliver  honorable-dis- 
charge papers  to  owners  thereof  is  proAdded 
for  by  act  of  May  21, 1872  (17  Stat,  137). 

Preference  in  ciAdl  ser^dce:  Persons  honorably 
dischai'ged  from  militar}^  or  naval  ser^dce 
by  reason  of  disability  resulting  from 
wounds  or  sickness  incurred  in  line  of  duty 
to  be  preferred  for  appointments  to  civil 
offices.  (Sec.  1754,  R.  S. ;  see  also  acts  Jan. 
16,  1883,  sec.  7,  22  Stat,  406;  Mar.  1,  1889, 
sec.  5,  25  Stat.,  762;  Mar.  6,  1902,  32  Stat., 
52;  Mar.  3,  1905,  33  Stat.,  1088.)  Honor- 
ably discharged  soldiers,  sailors,  and  ma- 
rines, and  widows  and  wives  of  such,  en- 
titled to  preference  in  appointments  to 
clerical  and  other  positions  under  the  Gov- 
ernment. (Act  Mar.  3,  1919,  sec.  6,  40 
Stat.,  1293;  see  also  act  Mar.  1,  1919,  40 
Stat,  1224;  act  July  11,  1919,  41  Stat,  37; 
act  July  11,  1919,  41  Stat,  142;  act  Oct  28, 
1919,  41  Stat,  319.) 

Preference  in  civil  service:  In  making  any  re- 
duction of  force  in  any  of  the  executive  de- 
partments, preference  to  be  given  to  reten- 
tion of  persons  honorably  discharged  from 
military  or  naval  ser\dce  and  to  widows  and 
orphans  of  deceased  soldiers  and  saUors. 


563 


Sec.  1426. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


(Act  Aug.  Id,  1S76,  sec.  3,  19  Stat.,  169;  see    ' 
also  act  Aug.  23,   1912,  sec.   4,   37  Stat., 
413.)  I 

Preference  in  private  employment:  Respect-   j 
fully  recommended  by  Congress  to  bank-    { 
ers,  mercliants,  manufacturers,  mechanics,    i 
farmers,  and  persons  engaged  in  industrial    I 
pursuits,  to  give  preference  in  appoint- 
ments to  persons  honorably  discharged  from 
the  military  or  naval  service  by  reason  of 
wounds,  disease,  or  the  expiration  of  terms 
of  enlistment.     (Sec.  1755,  R.  S.) 
Purchase  of  discharge  from  Navy  or  Marine 
Corps  in  time  of  peace  is  permitted  in  the 
discretion  of  the  President  and  under  such 
rules  as  he  may  prescribe.     (Act  Mar.  3, 
1893,  27  Stat.,  717.)     Fiirlough  for  remain- 
der of  enlistment,  subject  to  recall  in  time 
of  war  or  national  emergency,  in  lieu  of 
discharge  bv  purchase,  was  authorized  bv 
act  of  Aug.  29,  1916  (39  Stat.,  580). 
Reinstatement  of    former    Government    em- 
ployees who  served  as  drafted  or  enlisted 
men  in  war  with  Germany,  if  honorably 
discharged,  was  authorized  by  act  of  Feb. 
25, 1919  (40  Stat.,  1164).     See  also  act  Julv 
11,  1919  (41  Stat.,  142). 
Report  of  men  entitled  to  honorable  discharge 
to  be  made  to  Secretary  of  the  Navy  by 
everj'  commanding  officer  of  a  vessel.  (Sec. 
1429,  R.  S.) 
Undesu-able    discharge,    during    first    year    of 
enlistment,  may  result  in  refund  of  enlist- 
ment bounty.     (Act  Mar.  2,  1907,  34  Stat., 
1176.) 
Uniforms  may  be  retained  and  worn  with  dis- 
tinctive  insignia,  by   persona   honorably 
discharged    from    the     Navy    or    Marine 
Corps,  after  serving  in  the  present  war. 
(Act  Feb.  28,  1919,  40  Stat.,  1202;  see  also 
act  June  3,  1916,  sec.  125,  39  Stat.,  216,  as 
amended  by  act  Aug.  29,  1916,  39  Stat., 
649;  and  act  June  4,  1920,  sec.  8,  41  Stat., 
836.) 
Historical  note. — The  act  of  March  2,  1855 
(10  Stat.,  627),  providing  in  the  first  instance 
for  honorable  discharges,  is  entitled  "An  act  to 
provide   a   more   efficient  discipline  for  the 
Navy,"  and  section  one  of  that  act  gixes  author- 
ity to  the  Secretary  of  the  Navy  to  grant  the  hon- 
orable discliarge  as  a  testimonial  of  fidelity  and 
obedience  to  those  of  the  crew  who  enlisted  for 
three  years  he  might  deem  entitled  thereto, 
while  section  two  provides  that "  if  any  seaman, 
ordinary  seaman,   landsman,  or  boy  shall  re- 
enlist  for  three  years,  within  three  months  after 
his  discharge,  he  shall,  on  presenting  his  honor- 
able discharge,  or  on  accounting  in  a  satisfac- 
tory manner  for  its  loss,  be  entitled  to  pay  dur- 
ing the  said  three  months,  equal  to  that  to 
which  he  would  have  been  entitled  if  he  had 
been  employed  in  actual  ser\'ice. ' '     This  shows, 
from  the  origin  of  this  legislation,  the  distinc- 
tion between  the  honorable  discharge  per  se 
and  the  honorable  discharge  as  carrying  to  cer- 
tain classes  of  enlisted  men,  originally  only 
four,  the  three  months'  extra  pav.     (2  Comp. 
Dec,  608.) 

The  act  of  June  7,  1864  (13  Stat.,  120),  added 
two  other  classes  to  whom  an  honorable  dis- 
charge carried  with  it  the  privilege  of  extra  pay 
upon  reenUstment,  to  wit,  firemen  and  coal 


heavers,  the  lowest  grades  in  that  branch  of  the 
service  the  same  as  the  four  lowest  grades  in 
the  seamen  branch  of  the  service  were  allowed 
such  extra  pay  upon  reenlistment.  (2  Comp. 
Dec,  608.) 

The  Navy  Regulations  of  1876  (p.  100,  par. 
13)  for  the  first  time  substituted  the  words 
"  any  person  "  for  the  words  "  any  seaman,  ordi- 
nary seaman,  landsman,"  etc.,  in  providing  for 
the  payment  of  extra  pay  upon  reenlistment. 
How  this  change  came  to  be  made  is  not  appar- 
ent, and  no  reason  can  be  assigned  therefor, 
unless  it  be  that  the  honorable  discharge  pro- 
vided for  in  section  1429,  Revised  Statutes,  was 
confounded  with  that  of  section  1426  and  sec- 
tion 1573.     (2  Comp.  Dec,  608.) 

The  joint  resolution  of  June  11,  1896,  ex- 
tended the  benefits  conferred  by  sections  1426 
and  1573,  Revised  Statutes,  to  all  enlisted  per- 
sons now  in  the  Navy,  and  authorized  the  passing 
of  accounts  of  pajinasters  containing  payments 
of  extra  pay  to  all  enlisted  men  as  though  they 
had  been  included  in  said  sections.  Under  this 
resolution  payment  may  now  be  made  to  an 
enlisted  man  who  reenhsted  prior  to  its  passage 
and  whose  claim  for  extra  pay  was  pending 
before  the  paymaster  but  not  actually  paid  be- 
fore June  11.    (2  Comp.  Dec,  608.) 

The  purpose  of  this  resolution  of  1896  was  to 
legalize  the  practice  of  paying  all  enlisted  men, 
upon  reenlistment,  the  extra  pay,  which  prac- 
tice had  crept  into  the  service  without  warrant 
of  law.  This  practice  doubtless  arose  from  the 
fact  that  the  honorable  discharge  provided  for 
in  section  1429,  Revised  Statutes,  was  confused 
with  the  honorable  discharge  granted  under  sec- 
tion 1426.  The  object  of  the  honorable  dis- 
charge provided  for  in  section  1429  is  stated  in 
that  section  to  be  "as  a  testimonial  of  fidelity 
and  obedience,"  while  the  honorable  discharge 
provided  for  in  section  1426,  taken  in  connec- 
tion with  section  1573,  is  seen  to  be  for  the 
purpose  of  holding  out  the  extra  pay  to  the  six 
lowest  classes  of  enlisted  men  in  the  Navy  as 
an  inducement  to  reenllst.  That  this  very  evi- 
dent intention  of  the  law  was  recognized  by  the 
Navy  Department  appears  from  an  examina- 
tion of  the  older  regulations  of  the  U.  S. 
Navy.  But  by  the  joint  resolution  cited,  Con- 
gress has  seen  fit  to  extend  the  privileges  arising 
from  honorable  discharges  upon  reenlistment 
far  beyond  what  was  originally  provided.  (2 
Comp.  Dec,  608.) 

As  to  term  of  enlistment  in  the  Navy,  see 
note  to  section  1418,  Revised  Statutes. 

Classes  of  discharges  in  the  Navy. — 
Under  the  Navy  Department  there  long  have 
been  and  are  now  four  kinds  of  discharges, 
namely,  expressly  honorable,  dishonorable  after 
court-martial  [i.  e.,  general  court-mai'tlal],  for 
"bad  conduct,"  also  after  court-martial  [i.  e., 
either  general  court-martial  or  summary  court- 
martial],  and  "ordinary,"  familiarly  called 
"small"  discharge.     (28  Op.  Atty.  Gen.,  83.) 

"Honorable"  and  "ordinary"  discharges 
distinguished. — The  "honorable  discharge" 
in  the  cases  referred  to  in  section  1573,  Revised 
Statutes,  is  that  provided  for  in  sections  1426 
and  1429,  Revised  Statutes,  and  is  dependent 
upon  fidelity  and  obedience  in  the  service.  It 
differs  from  the  "ordinary"  discharge  in  that 
the  latter  carries  with  it  no  testimonial  as  to  the 


564 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1426. 


special  good  qualities  and  fitness  of  the  holder. 
It  is  the  record  shown  by  the  "honorable"  dis- 
charge, coupled  with  service  and  reenlistment, 
that  entitles  the  seaman  to  increased  pay  under 
section  1573.    (4  Comp.  Dec,  281.) 

The  so-called  "ordinary  discharge"  in  the 
Navy  has  no  express  legislative  authority,  but 
is  the  creature  of  regulation  and  long-estab- 
iished  administrative  practice.  Only  the  hon- 
orable discharge,  bad-conduct  discharge,  and 
dishonorable  discharge  are  provided  for  by  laws 
relating  to  the  Navy.  If  it  were  attempted  to 
classify  the  ordinary  discharge  under  one  of 
these  statutory  headings,  it  would  necessarily 
have  to  be  grouped  with  the  honorable  dis- 
charge, because  neither  bad-conduct  nor  dis- 
honorable discharges  can  be  issued  without 
sentence  of  court-martial.  In  some  cases,  how- 
ever, ordinary  discharges  are  issued  under  cir- 
cumstances where  it  could  hardly  be  said  by 
military  men  that  the  holder  left  the  service 
under  honorable  conditions;  as  one  discharged 
prior  to  completion  of  enlistment  for  physical 
disability  due  to  his  own  misconduct.  (File 
9209-114,  Mar.  11,  1919.) 

The  technical  "honorable  discharge"  in  the 
Navy  is  issued  with  few  exceptions  only  to 
those  who  have  completed  a  full  term  of  en- 
listment. An  "ordinary  discharge"  may, 
however,  constitute  a  man  "honorably  dis- 
charged" from  the  Navy  within  the  meaning 
of  the  law  providing  for  mileage  on  discharge. 
The  ' '  ordinary  discharge ' '  blank  does  not 
expressly  characterize  the  discharge  as  honor- 
able or  otherwise.  It  does,  however,  state, 
either  expressly  or  by  reference  to  an  order  of 
the  Department,  the  reason  for  the  discharge, 
and  at  the  end  of  the  blank  under  the  head- 
ing of  ' '  character  of  discharge  "  is  a  place  in 
which  is  to  be  entered  "good,"  "inaptitude," 
or  "undesirable,"  as  the  case  may  be.  In 
cases  where  the  character  of  discharge  is 
expressly  stated  to  be  "good,"  it  certainly 
should  be  regarded  as  honorable  within  the 
meaning  of  the  mileage  law.  "Inaptitude" 
does  not  import  that  the  discharge  is  otherwise 
than  honorable.  Neither  is  the  entry  "unde- 
sirable" of  itself  sufficient  to  deprive  the  dis- 
charge of  an  honorable  character,  for  the  man's 
undesirability  for  the  service  might  be  due  to 
causes  in  no  manner  reflecting  upon  him.  It 
would  seem  that  any  discharge  which  is  not 
honorable  should  contain  on  its  face  entries 
from  which  it  can  be  determined  with  cer- 
tainty that  it  is  not  an  honorable  one,  and 
that  where  such  does  not  appear  upon  the  face 
of  the  discharge  it  should  be  regarded  as  hon- 
orable. (File  9209-114,  Mar.  11,  1919,  con- 
struing mileage,  act  of  June  3,  1916,  sec.  126, 
39  Stat.,  217,  as  amended  by  act  of  Feb.  28, 
1919,  sec.  8,  40  Stat.,  1203;  see  also  25  Comp. 
Dec,  771;  25  Comp.  Dec,  792.) 

The  Bureau  of  Navigation  may  properly  de- 
termine what  cases  of  ordinary  discharges  are 
regarded  as  constituting  the  holders  thereof 
"honorably  discharged"  persons  ^vithin  the 
meaning  of  those  words  as  used  in  the  mileage 
law,  as  construed  by  the  Judge  Advocate  Gen- 
eral, or  within  the  meaning  which  they  have 
acquired  by  administration  practices  in  the 
Army  not  incompatible  with  conditions  exist- 
ing in  the  Navy.    (File  9209-114,  Mar.  11, 1919.) 


Honorable  discharges  in  Army  and  Navy 
not  necessaiily  same. — In  using  the  phrase 
"honorably  discharged  "  Congress  did  not  neces- 
sarily intend  it  to  have  the  same  definition  in 
both  the  Army  and  Navy.  One  department 
might  treat  one  kind  of  conduct  as  inconsistent 
with  the  allowance  of  an  honorable  discharge 
and  the  other  not,  according  to  practical  con- 
siderations and  the  traditions  of  the  two  serA- 
ices.  In  both  serA-ices  "dishonorable  dis- 
charge "  was  given  only  after  a  trial  by  court- 
martial  and  as  a  punishment.  In  the  Army, 
in  case  of  discharge  for  cause,  without  courts 
martial,  it  was  customary  to  state  on  the  cer- 
tificate that  discharge  was  in  pursuance  of  an 
order,  giving  the  number  thereof,  and  this  order 
must  be  referred  to  to  learn  the  specific  cause. 
There  seems  to  be  no  statutory  provision  for  a 
certificate  of  express  honorable  discharge  from 
the  Armv  such  as  in  the  naval  service  is  called 
for  bv  Revised  Statutes,  section  1427.  (28  Op. 
Atty"  Gen.,  83.) 

When  payment  of  mileage  was  authorized 
to  men  ' '  honorably  discharged  from  the  Army, 
Navy,  or  Marine  Corps,"  the  words  "honorably 
discharged  "  were  used  in  the  same  broad  sense 
with  reference  to  the  Navy  that  they  have 
with  reference  to  the  Army.  As  applied  to 
the  Army  these  words  do  not  have  a  restricted 
meaning  such  as  ordinarily  attaches  thereto  in 
naval  parlance,  and  as  the  benefits  of  the  law 
are  intended  to  be  granted  to  both  services 
without  discrimination,  held,  that  an  enlisted 
man  of  the  Navy  should  be  regarded  as 
"honorably  discharged"  if  his  discharge  was 
of  a  kind  generally  regarded  as  an  honorable 
one  "by  the  War  and  Navy  Departments  and 
military  men  of  the  branch  in  question  at  the 
time  the  separation  or  discharge  took  effect." 
(File  9209-114,  Mar.  11,  1919.) 

Honorable  discharge  may  be  issued  in 
cases  not  expressly  authorized  by  stat- 
ute.— When  Congress  use  the  phrase  "honor- 
ably discharged  "  with  reference  to  persons  who 
have  served  in  the  Navy,  its  language  is  not 
necessarily  limited  to  express  honorable  dis- 
chargee granted  under  sections  1426  and  1427, 
Revised  Statutes,  but  may  be  construed  as  in- 
tended to  adopt  or  act  upon  the  actual  past  dis- 
charge as  an  honorable  one  if  of  a  kind  generally 
so  regarded  by  the  Navy  Department  and  mili- 
tary men  of  that  branch  of  the  service  at  the 
tinie  the  separation  or  discharge  took  place. 
The  question  is  not  to  be  determined  by  the 
recent  or  present  opinions  of  such  department 
or  naval  men,  concerning  discharges  happening 
at  the  time  of  the  Civil  War  or  shortly  after;  but 
is  whether  the  discharge  when  granted  belonged 
to  a  class  then  commonly  accepted  among  naval 
men  and  at  the  Navy  Department  as  consti- 
tuting a  man  an  "honorably  discharged"  per- 
son. In  other  words,  it  is  not  a  question  of  what 
should  have  been  granted,  but  what  was  grant- 
ed.    (28  Op.  Atty.  Gen,,  83.) 

The  naval  authorities  may  issue  so-called 
'•'honorable  discharges"  as  pro\-ided  by  Navy 
Regulations,  but  such  discharges  can  not  carrj- 
the  right  to  pay  and  other  benefits  except  when 
issued  in  conformitv  with  the  law  that  author- 
izes such  extra  pay.  The  fact  that  he  has  re- 
ceived an  honorable  discharge  pursuant  to  ^a,^y 
Regulations  does  not  give  him  the  statue  of  one 


565 


Sec.  1426. 


Pt.2.  liFAnSED  STATUTES. 


The  Navy. 


receiving;  an  lionorablc  tliaeharj;e  authorized  by 
eectiou  1426,  Revisod  Statutes,  or  the  statue  of 
one  in  some  one  of  the  clafisefl  specified  in  sec- 
tion 1573  as  entitkHl  to  extra  pay  for  reenlist- 
ment.     (2  C'onip.  Dec,  5G3.) 

The  three  months'  extra  pay  for  reenlistment 
allowed  by  section  1573,  Revised  Statutes  [prior 
to  amendment  of  that  section),  to  seamen,  ordi- 
nary seamen,  landsmen,  firemen,  coal  heavers, 
and  boys,  was  limit(>d  to  the  six  grades  of  en- 
listed men  mentioned,  and  coidd  not  be  allowed 
to  a  person  enlisted  as  a  steward.  (2  Comp. 
Dec,  536.) 

A  steward  to  the  commander  in  chief  was  not 
one  of  the  classes  entitled  to  an  honorable  dis- 
charge as  provided  in  section  1426  [prior  to 
amendment  of  that  section],  which  discharge 
was  a  prerequisite  to  obtaining  the  advantages 
of  extra  pay  pro\dded  for  in  section  1573.  (2 
Comp.  Dec,  536.) 

A  man  enlisted  in  the  Navy  as  a  writer,  third 
class,  and  granted  an  honorable  discharge  under 
section  1429,  Revised  Statutes,  as  a  yeoman, 
after  three  years'  service,  was  not  entitled  to  the 
extra  pay  for  reenlistment  allowed  by  section 
1573  [prior  to  amendment  of  that  section],  to 
the  six  classes  of  enlisted  men  named  therein. 
(2  Comp.  Dec,  563.) 

Character  of  discharge  issued  to  enlisted 
man  is  question  for  determination  by  War 
or  Navy  Department. — The  War  and  Navy 
Departments  are  parts  of  the  executive  branch 
of  the  Government,  ha^•ing  to  do  with  a  man's 
discharge  from  the  service  as  an  executive  mat- 
ter, and  having  special  care  and  executive 
charge  of  the  man's  service  and  of  his  military 
honor  and  standing.  This  charge  they  have 
while  the  man  is  in  the  service,  and  until  the 
moment  he  leaves  it.  ^Miether  he  should  go 
wither  without  honor,  these  departments  de- 
termine when  they  part  from  him.  \Mien  they 
do  so  determine,  they  become,  at  least  in  the 
absence  of  fraud  or  gross  mistake,  functus 
officio,  and  the  executive  branch  of  the  Govern- 
ment thereby  becomes  fimctus  officio.  (28  Op. 
Atty.  Gen.,  83.) 

The  question  whether  a  man  was  "honor- 
ably discharged"  from  the  Navy  within  the 
meaning  of  the  law  providing  for  payment  of 
mileage  on  discharge,  although  a  question  in- 
volving disbursements,  is  one  for  determina- 
tion by  the  Navy  Department  and  not  by  the 
accounting  officers.  (File  9209-114,  Mar.  11, 
1919,  citing  28  Op.  Atty.  Gen.,  83,  90;  21  Comp. 
Dec,  539-547.) 

In  determining  the  pensionable  status  of  a 
person  who  served  in  the  Civil  War,  under  the 
acts  of  Jime  27,  1890  (26  Stat.,  182),  and  of 
February  6, 1907  (34 Stat.,  879),  the  Department 
of  the  Interior  is  concluded  by  the  terms  of  a 
discharge  granted  by  the  Navy  Department  as 
"honorable."     (28  Op.  Atty.  Gen.,  83.) 

By  using  the  words  "honorably  discharged" 
in  the  acts  above  referred  to,  Congress  intended 
to  adopt  or  act  upon  the  actual  past  discharges 
as  honorable,  if  of  a  kind  generally  so  regarded 
by  the  War  and  Navy  departments  and  military 
men  of  the  branches  in  question  at  the  time  the 
separation  or  discharge  took  place.  (28  Op. 
Atty.  Gen.,  83.) 

In  any  case,  in  determining,  long  after  dis- 
charge,  the  nature  of  the  discharge  issued, 


whether  what  was  formerly  done  as  an  executive 
act  did  or  did  not  constitute  the  individual  a 
person  "honorably  discharged" — "of  course, 
from  a  practical  standpoint,  and  as  expert 
evidence,  it  would  be  well  to  consider  any  pres- 
ent views  of  the  two  military  departments 
upon  the  question  whether  or  not  the  original 
act  was  the  granting  of  an  honorable"  dis- 
charge. Those  departments,  even  when  no 
longer  in  charge  of  the  person,  should  and  do 
take  an  interest  in  the  honor  of  the  men  who 
have  served  their  country,  and  that  honor  is, 
with  military  men,  the  most  important  con- 
sideration of  their  lives."  (28  Op.  Attv.  Gen., 
83.) 

"It  is  peculiarly  the  province  of  the  War 
Department  to  make  deductions  of  fact  from 
the  records  of  military  service  of  which  that  de- 
partment is  the  natural  and  legal  custodian, 
and  to  decide  military  questions  which  relate 
not  only  to  the  entrance  into  ser\dce  but  also 
the  cause  or  manner  of  severance  from  ser^dce 
of  officers  and  enlisted  men."  (21  Comp. 
Dec,  539,  547.  But  see  20  Comp.  Dec,  751, 
note  to  sec.  236,  R.  S.,  tmder  V,  (A),  "The 
question  whether  or  not  the  record  of  an  en- 
listed man  in  the  Marine  Corps  is  honest  and 
faithftil.'')  See,  in  this  connection,  cases 
noted  under  section  471,  Revised  Statutes, 
"Jurisdiction,  Commissioner  of  Pensions." 

Eilect  of  discharge. — The  honorable  dis- 
charge of  a  soldier  is  a  formal,  final  judgment 
passed  by  the  Government  on  his  entire  military 
record,  and  an  authoritative  declaration  that 
he  left  the  ser^dce  in  a  status  of  honor.  (U.  S. 
V.  Kelly,  15  Wall.,  34.) 

The  Kelly  case  held  that  an  honorable  dis- 
charge entitled  a  deserter  to  recover  any  pay  or 
bounty  earned  subsequent  to  his  restoration  to 
duty,  but  it  was  not  pretended  that  his  honor- 
able discharge,  subsequently  granted,  gave  him 
a  right  to  pay  dining  the  period  of  his  absence 
from  the  service,  or  would  have  dispensed  with 
the  forfeiture  of  pay  incident  to  his  desertion, 
had  any  pay  been  due  at  the  time.  (File 
26251-1963:1,  Aug.  17,  1910,  citing  U.  S.  v. 
Landers,  92  U.  S.,  77,  80.) 

The  mark  of  desertion  entered  on  the  record 
of  an  enlisted  man  is  not  removed  by  his  sub- 
sequent honorable  discharge.  The  case  of  II.  S. 
V.  Kelly,  as  explained  in  U.  S.  r.  Landers, 
does  not  hold  that  an  honorable  discharge  has 
the  effect  of  removing  an  existing  mark  of 
desertion,  nor  that  in  consequence  of  such  dis- 
charge the  departement's  records  should  be 
altered  so  as  to  show  an  incorrect  state  of  facts, 
and  the  Kelly  case  clearly  does  not  authorize 
such  action  to  be  taken.  The  Landers  case 
states  that,  "if  the  entry  of  desertion  has  been 
improperly  made,  its  cancellation  can  be  ob- 
tained by  application  to  the  War  Department," 
thus  clearly  holding  that  the  mark  of  desertion 
is  not  removed  by  the  honorable  discharge 
subsequently  issued  to  the  deserter,  but  that, 
on  the  contrary,  its  cancellation  is  dependent 
upon  an  express  determination  by  the' depart- 
ment that  it  was  "improperly  made."  The 
fact  that  the  deserter  subsequently  received  an 
honoi'able  discharge  does  not  affect  the  question 
of  removing  the  mark  of  desertion  from  his 
record.     (File  26251-1963:1,  Aug.  17,  1910.) 


566 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1426. 


A  discharge  from  the  Navy  operates  in  bar  of 
trial  for  a  previous  desertion  from  the  Navy, 
but  not  in  bar  of  a  previous  offense  committed 
in  the  Marine  Corps.  They  are  distinct 
branches  of  the  service,  and  a  discharge  from 
the  former  does  not  operate  as  a  discharge  from 
the  latter.     (File  26251-5810:1,  Feb.  20,^  1912.1 

The  discharge  of  a  man  before  having  been 
fully  checked  the  amount  of  a  court-martial 
sentence  operates  as  an  implied  remission  of 
the  unexecuted  portion  of  the  sentence.  (See 
Comp.  Dec,  Apr.  6,  1914,  158  S.  and  A.  Memo., 
3035,  note  under  sec.  236,  R.  S.,  "_VI.  Set-off".) 
[But  permitting  man  to  extend  his  enlistment, 
instead  of  discharging  him,  under  such  circum- 
stances, does  not  operate  as  an  implied  remis- 
sion.    (FHe  26806-131:44,  Aug.  11,  1916.)] 

The  discharge  of  an  enlisted  man,  while  in 
debt  to  the  United  States  (other  than  indebted- 
ness caused  by  sentence  of  court-martial  not 
fully  checked)  does  not  remit  the  amount  of 
such  indebtedness,  but  if  he  is  subsequently 
reenlisted  same  may  be  checked  against  pay 
coming  due  him  under  his  current  enlistment. 
(Comp.  Dec,  Apr.  7, 1914, 158  S.  and  A.  Memo., 
3037;  see  note  to  sec.  236,  R.  S.,  "VI.  Set-off.") 

Under  the  Articles  of  War,  prescribing  limi- 
tations for  triiils  by  court-martial,  it  would 
seem  that  a  soldier  may  be  arrested  and  tried 
after  the  expiration  of  his  term  of  service  for 
a  military  offense  committed  during  such  term 
of  service,  so  that  the  order  for  the  court-martial 
is  issued  within  two  years  from  the  commission 
of  such  offense.  The  case  of  Lord  George  Sack- 
ville,  as  reported  by  Tytler  in  his  treatise  on 
courts-martial,  goes  to  sustain  the  jurisdiction 
of  the  naval  authorities  to  arrest  and  try  the 
offender,  as  well  after  the  discharge  from  serv- 
ice as  before.  (In  re  Bird,  3  Fed.  Cas.  No. 
1428.  See  below,  "\\Tien  discharge  takes 
effect,"  and  see,  in  this  connection,  note  to 
Constitution,  Art.  I,  sec.  8,  clause  14,  under 
"IV.  Jurisdiction  of  Courts-Martial."  See  also 
file  28550-951:3,  May  13,  1919,  and  sec  1624, 
R.  S.,  art.  14.) 

Service  as  marine  counted  in  computing 
threeyears' service  forhonorabledischarge 
from  Navy. — An  enlisted  man  of  the  Marine 
Corps  who  was  transferred,  by  author! tv  of  the 
act  of  June  17, 1898  (30  Stat.,  474),  to  the  Hospital 
Corps  of  the  Navy,  is  entitled  to  credit  for  the 
prior  ser^-ice  in  the  Marine  Corps,  in  the  same  en- 
listment he  is  serving  out  in  the  Hospital  Corps, 
in  making  up  the  time  necessary  to  entitle  him 
to  the  honorable  discharge  provided  for  in  sec- 
tion 1426,  Re\'ised  Statutes,  as  amended.  This 
section  applies  to  enlisted  men  of  the  Navy,  but 
when,  by  authority  of  law,  the  Secretary  of  the 
Navy  transfers  an  enlisted  marine  to  the  Hos- 
pital Corps  of  the  Navy,  it  is  only  a  fair  and 
reasonable  construction  of  section  1426  to  hold 
that  it  permits  the  prior  service  in  the  Marine 
Corps,  in  the  same  enlistment  that  he  is  serving 
out  in  the  Hospital  Corps  of  the  Navy,  to  be 
credited  to  him  in  making  up  the  time  neces- 
sary to  entitle  him  to  an  honorable  discharge, 
particularly  in  view  of  the  fact  that  this  is  a 
beneficial  statute  and  that  such  construction 
will  carry  out  the  well-settled  policy  of  the 
Government  to  encourage  continuous  service 
and  reenUstment  of  efficient  men,  who  are  the 
only  ones  under  Navy  Regulations  who  can 


receive  such  discharges,  even  after  the  full 
service  of  three  vears  required.  (11  Comp. 
Dec,  700;  see  also  file  5315-04,  July  5,  1904, 
noted  under  sec  1421,  R.  S.) 

Honorable  discharge  of  de  facto  enlisted 
man. — One  Kato  Notaich  enlisted  as  mess  at- 
tendant, for  four  years;  not  liking  the  service, 
after  one  day's  duty,  he  left;  in  his  stead  there 
appeared  Gonhichi  Yamamoto,  who  states  that 
he  was  received  on  board  ship  as  Kato  Notaich; 
although  never  regularly  enlisted,  he  served 
the  full  term  of  enlistment,  and  was  honorably 
discharged;  thereafter  he  reenlisted  under  his 
true  name:  Held,  that  he  was  entitled  to  the 
benefits  of  his  de  facto  enlistment  and  honorable 
discharge  therefrom,  and  that  continuous  serv- 
ice certificate  should  be  issued  to  him  in  his 
true  name.  (File  5839-04,  July  5,  1904.)  In 
this  connection,  see  Op.,  J.  A.  G.,  Armv,  Feb. 
26,  1901,  Circular,  War  Dept.,  March  18,  1901, 
holding  that  undoubtedly  men  can  become 
soldiers  in  the  military  service  of  the  United 
States  without  formal  enlistment;  and  if  a  man 
who  has  signified  his  intention  to  enter  the 
military  service  is  clothed,  fed,  armed,  put  on 
duty — made  a  soldier  of  in  fact — he  becomes  a 
soldier  in  the  service  of  the  United  States,  even 
though  he  is  never  "sworn,"  mustered,  or 
otherndse  formally  accepted  into  that  service. 

Power  of  courts  to  discharge  enlisted 
men.— In  12  Op.  Atty.  Gen. ,  258, 266,  it  was  held 
that  the  authority  conferred  upon  the  Secretary 
of  War  in  regard  to  the  discharge  of  Army  recruits, 
is  not  declared  to  be  exclusive,  and  it  may  well 
be  doubted  whether  such  power  conferred  upon 
a  merely  ministerial  officer  can  be  held  to  oust 
judicial  inquiry  upon  habeas  corpus  into  the 
legality  of  the  enlistment.  (See  also  note  to 
sees.  761  and  1419,  R.  S. ;  and  see  act  of  Mar.  3, 
1915  (38  Stat.,  931),  quoted  above,  under  sec. 
1418,  R.  S.,with  reference  to  discharge  of  minors 
fraudulently  enlisted  in  the  Navy.) 

Naturalization  of  honorably  discharged 
enlisted  men. — Section  1418,  Re\ised  Stat- 
utes, required  enlistments  in  the  Navy  to  be  for 
not  exceeding  five  years;  and  section  1608  de- 
clared that  enlistments  in  the  Marine  Corps 
should  be  for  not  less  than  five  years.  At  the 
same  time  honorable  discharges  were  granted  to 
those  who  had  ful  filled  the  three-vear  enlistment 
in  the  Navy.  (Sec.  1426,  R.  S.)  the  act  of  July 
26, 1894  (28  Stat.,  124),  provided  for  the  naturali- 
zation of  aliens  who  served  five  consecutive  years 
in  the  Na\'y  and  received  an  honorable  discharge. 
At  the  time  this  act  was  passed,  it  was  possible 
for  persons  who  were  in  the  naval  ser^-ice  to 
produce  evidence  in  the  form  of  a  certificate  of 
honorable  discharge  covering  a  full  five-year 
term  of  enlistment,  or  it  was  possible  at  "that 
time  to  have  proof  of  a  shorter  term  of  enlist- 
ment covered  by  an  honorable  discharge  and 
proof  of  continued  service  under  a  further  en- 
listment. It  may  have  been  the  intention  of 
Congress  to  require  proof  of  five  consecutive 
years  of  servdce  and  a  certificate  of  honorable 
discharge  covering  such  whole  period.  But  by 
act  of  March  3,  1899,  section  16  (30  Stat.,  1008), 
the  term  of  enlistment  in  the  Navy  was  changed 
to  four  years,  and  by  act  of  March  3,  1901  (31 
Stat.,  1132),  enlistment  in  the  Marine  Corps  was 
reduced  to  four  years.  The  change  in  the  term 
\    of  enlistment  in"  the  Navy  brings  with  it  a  cor- 


567 


Sec.  1426. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


respondinp:  modification  in  the  requirements  of 
the  naturaliziit-ion  statute;  otherwise  its  objecta 
have  been  practically  frustrated.  Ilence, 
proof  of  an  alien's  service  of  a  four-year  term 
of  enlistment  in  the  Navy,  his  honorable  dis- 
charfje,  ami  his  immediate  reenlistment  for  a 
further  term  of  four  years,  the  proof  showdng 
five  continuous  years  of  service,  is  sufficient 
under  the  act  of  July  26,  1894.  (In  re 
Brykczynski,  207  Fed.  Rep.,  813.  By  act 
June  30,  1914  (38  Stat.,  395),  naturalization  of 
aliens  was  authorized  upon  evidence  of  service 
in  the  Navy  or  Marine  Corps  of  one  enlistment 
"of  not  less  than  four  years,"  followed  by  an 
honorable  discharge,  or  an  ordinary  discharge 
with  recommendation  for  reenlistment;  and  by 
act  of  May  22,  1917  (40  Stat.,  84),  naturalization 
of  aliens  was  authorized  after  one  year's  honor- 
able service  in  the  Naval  Reserve  Force.  New 
provisions  for  naturalization  of  persons  having 
service  in  the  Navy  and  Marine  Corps  were 
contained  in  act  of  May  9,  1918,  40  Stat.,  542, 
which  expressly  repealed  the  act  of  June  30, 
1914,  38  Stat.,  395.) 

Necessity  of  certificate  of  discharge. — 
"A  soldier  can  not  discharge  himself,"  and 
until  he  has  been  discharged  by  competent 
authority  his  original  contract  continues  bind- 
ing upon  him.  It  has  been  the  practice  in 
the  Navy  to  enter  the  mark  of  desertion  against 
men  who  leave  the  service  without  receiving 
a  discharge,  although  they  may  have  satisfac- 
torily completed  their  terms  of  enlistment, 
and  this  practice  was  given  legislative  recog- 
nition by  the  act  of  Congress  approved  August 
14,  1888  (25  Stat.,  442),  section  1  of  which 
authorized  the  Secretary  of  the  Navy  to  remove 
the  mark  of  desertion  in  certain  of  such  cases, 
but  made  it  discretionary  with  him  to  do  so  or 
not.  (File  26251-5447,  Dec.  8,  1911;  see  also 
note  to  sec.  1418,  R.  S.,  under  "Detention  of 
men  after  expiration  of  enlistment.") 

WTiile  there  is  no  provision  of  law  expressly 
requiring  that  enlisted  men  of  the  Navy  be 
discharged  in  writing,  as  is  required  in  the 
Army  (sec.  1342,  R.  S.^  art.  4),  Congress  has  re- 
peatedly in  its  legislation  relating  to  the  Navy 
emphasized  the  necessity  of  a  "discharge" 
for  the  purpose  of  terminating  an  enlisted  man's 
obligation  to  the  United  States.  (File  26251- 
5447,  Dec.  8,  1911;  Op.  Atty.  Gen.,  Feb.  27, 
1922,  file  26251-26615:8.) 

In  American  and  English  Encyclopedia  of 
Law,  volume  20,  page  628,  title  "Military 
Law,"  it  is  stated  that  "The  connection  of  an 
enlisted  man  with  the  military  or  naval  service 
is  regularly  terminated  by  his  death  or  dis- 
char™."  In  support  of  this  statement  there  is 
citecl,  among  others,  the  case  of  Grant  v.  Gould 
(1792),  in  which  it  wa's  held  that  "a  person  in 
pay  as  a  soldier  is  fixed  with  the  character  of  a 
soldier;  and  if  once  he  becomes  subject  to  the 
military  character  he  never  can  be  released  but 
by  a  regular  discharge."  (2  H.  Bl.,  69,  104.) 
However,  it  should  be  remarked  that  when  this 
decision  was  rendered  enlistments  in  England 
were  for  life.     (File  26251-5447,  Dec.  8,  1911.) 

The  correct  view  appears  to  be  that  enlist- 
ment, like  marriage,  is  not  merely  a  contract, 
but  a  status;  and  although  an  enlisted  man  may 
have  fully  performed  his  contract  he  can  not 
divest  himself  of  his  status  as  a  person  in  the 


military  or  naval  service  until  regularly  dis- 
chargeci  by  competent  authority.  (File  26251- 
5447,  Dec.  8,  1911.) 

Status  of  enlisted  men  not  discharged 
upon  expiration  of  enlistment. — See  note 
to  section  1408,  Revised  Statutes,  under  "Status 
of  mates  when  not  discharged  upon  expira- 
tion of  enlistment."  See  also  note  to  section 
1418,  Revised  Statutes,  under  "Detention  of 
men  after  expiration  of  enlistment." 

Revocation  of  discharge  obtained  by 
fraud. — An  honorable  discharge,  a  certificate  of 
which  a  man  obtained  by  falsehood  and  perjury, 
must  be  treated  as  a  nullity.  (16  Op.  Attv. 
Gen.,  349,  352;  followed  28 Op.  Atty.  Gen.,  170^ 

Where  an  enlisted  man  obtained  a  discharge 
from  the  Marine  Corps  upon  condition  that  he 
would  enlist  immediately  in  the  Navy  as  a 
hospital  apprentice  and  then  failed  so  to  enlist, 
the  discharge  may  be  canceled  and  the  man 
declared  a  deserter;  if  apprehended,  he  may  be 
tried  by  court-martial  both  for  desertion  and 
conduct  to  the  prejudice  of  good  order  and 
discipline.  (File  7657-159,  Aug.  10,  1912; 
C.  M.  O.  6,  1915,  p.  9;  see  also  file  26251- 
6599;  compare  cases  noted  under  sec.  1421,  R.  S.) 

The  Secretary  of  the  Navy  has  authority  to 
revoke  the  discharge  of  an  apprentice  seaman 
procured  by  fraud,  and  may  resume  jurisdic- 
tion over  the  man.  In  this  case  the  man  made 
a  bogus  confession,  claiming  that  he  had  com- 
mitted a  murder  for  which  he  was  wanted  by 
the  civil  authorities,  and  after  his  discharge 
and  delivery  to  the  civil  authorities  repudiated 
his  confession.     (28  Op.  Atty.  Gen.,  170.) 

Revocation  of  discharge  issued  under 
illegal  sentence  of  court-martial. — ^WTiere, 
by  the  sentence  of  a  court-martial,  a  soldier  is 
discharged  from  the  service  before  the  expira- 
tion of  his  term  of  enlistment,  and  such  sentence 
is  afterwards  set  aside  as  null  and  void,  the 
status  of  such  soldier  is  not  affected  in  any  way 
by  such  sentence,  and  he  is  deemed  to  have 
been  in  the  service  all  the  time  between  the 
sentence  and  the  order  setting  it  aside.  (In  re 
Bird,  3  Fed.  Cas.  No.  1428;  see  also  note  to 
sec.  1624,  R.  S.,  art.  32.) 

Correction  of  errors  in  discharge. — The 
War  Department  has  power  to  correct  mistakes 
made  in  granting  discharges  to  soldiers.  (13 
Op.  Atty.  Gen.,  201;  but  see  13  Op.  Atty. 
Gen.,  16".) 

'When  discharge  takes  effect. — Until  a 
soldier's  discharge  is  issued  and  delivered  to 
him,  or  until  such  action  is  taken  as  to  make 
him  legally  chargeable  with  notice  of  his  dis- 
charge, he  remains  in  the  service.  (2  Comp. 
Dec,  95.) 

A  soldier  having  been  absent  on  furlough  at 
the  time  of  the  discharge  of  his  company,  and 
the  certificate  of  his  discharge  having  been 
mailed  to  him,  his  discharge  did  not  take  effect 
until  he  received  the  certificate  or  other  notice 
thereof.     (6  Comp.  Dec,  11. )_ 

An  enlisted  man  of  the  Marine  Corps  remains 
in  the  service  until  receipt  of  his  discharge  or 
until  such  action,  is  taken  as  will  render  him 
legally  chargeable  with  notice  thereof,  notwith- 
standing the  expiration  of  his  term  of  enlist- 
ment during  his  absence  on  furlough  granted 
at  his  own  request.  (2  Comp.  Dec,  94;  Dig. 
Comp.  Dec,  433.) 


568 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1427. 


An  enlistment  does  not  expire  until  midnight 
of  the  last  day  of  the  term,  and  a  discharge  by 
reason  of  expiration  of  enlistment  is  not  effec- 
tive prior  to  midnight  although  delivered  at  an 
earlier  hour  of  the  day.  Accordingly,  held 
that  a  man  who  died  upon  the  last  day  of  his 
enlistment  after  the  delivery  of  his  discharge 
by  reason  of  the  expiration  of  his  enlistment 
was  in  the  status  of  an  enlisted  man  in  the 
service  at  the  time  of  his  death.  (File  27381-31 
Feb.  5,  1917.) 

A  discharge  as  undesirable  is  effective  when 
delivered,  and  a  man  who  was  overpaid  when 
so  discharged  could  not  later  on  the  same  day, 
upon  discovery  of  the  error,  be  legally  brought 
back  to  the  ship  and  detained  for  disciplinary 
action  by  the  naval  authorities  upon  refusal  to 
refimd  the  amount  of  overpayment.  (File 
26254-70,  July  8, 1908.) 

Where  an  offense  is  committed  by  a  man  on 
the  day  but  subsequent  to  the  delivery  of  his 
discharge,  if  the  discharge  was  for  any  cause 
other  than  expiration  of  enlistment,  he  was  not 
in  the  naval  service  when  the  offense  ?vas  com- 
mitted, and  therefore  could  not  be  tried  by 
court-martial  for  such  offense  notwithstanding 
his  reenlistment  on  the  next  day.  If  the  dis- 
charge was  by  reason  of  expiration  of  enlist- 
ment, he  was  in  the  naval  service  when  his 
offense  was  committed,  his  discharge  not  hav- 
ing become  effective  until  midnight  of  that  day. 
Although  the  question  is  not  free  from  doubt, 
it  is  considered  that,  if  a  case  of  sufficient  im- 
portance, the  man  who  reenlisted  the  next  day 
should,  if  his  discharge  was  by  reason  of  expi- 
ration of  enlistment,  be  brought  to  trial  by 
court-martial  to  the  end  that  he  might  present 
the  jurisdictional  question  to  the  civil  courts 
by  habeas  corpus  proceedings.  If  the  offense 
is  discovered,  and  the  accused  placed  under 
arrest  to  await  action,  before  his  discharge 
takes  effect,  the  general  rule  is  that  jurisdiction 
has  thus  attached  and  is  not  divested  by  any 
subsequent  change  in  the  status  of  the  accused. 
(File  26504-298,  Feb.  26,  1917.  See  also  file 
28550-9513,  May  13,  1919,  In  re  Bird,  3  Fed. 
Cas.  No.  1428,  and  sec.  1624,  R.  S.,  art.  14.) 

Theft  of  honorable-discharge  blanks. — 
An  enlisted  man  who  steals  honorable-discharge 
blanks  and  is  then  discharged  from  the  naval 
service  with  a  bad-conduct  discharge,  prior 
to  detection  of  the  theft,  may,  when  appre- 
hended, be  proceeded  against  in  the  ci\'il 
courts  of  the  United  States  for  A-iolation  of 
section  47  of  the  Federal  Triminal  Code  (act 
Mar.  4,  1909,  35  Stat.,  1097),  or  may  be  tried 
by  a  naval  court-martial  for  \dolation  of  sec- 
tion  1624,   article   14,    Revised   Statutes,    the 


same  as  though  he  had  not  been  discharged, 
as  is  specifically  provided  therein.  (See  file 
26283-977,  Feb.  14,  1916.  In  this  case,  it  was 
decided  to  try  the  accused  in  the  civil  court; 
see  file  26283-977:10,  June  2,  1916.) 

From  the  Navy  Department's  point  of  \dew 
the  theft  of  honorable-discharge  blanks  is  of  a 
quite  serious  nature,  and  the  quantum  of 
punishment  to  be  imposed  upon  conviction 
should  be  governed  in  a  measure  by  con- 
siderations looking  to  a  prevention  of  similar 
thefts  by  others.  Honorable  discharges  are 
by  law  and  regulations  awarded  only  to  men 
who  have  earned  same  by  years  of  efficient 
and  honorable  service  in  the  Na\'y;  and  such 
discharges  entitle  the  holders  to  numerous 
and  substantial  benefits  from  the  Government. 
Furthermore,  in  civil  life  the  exhibiting  of  an 
honorable  discharge  from  the  Na^•y  opens  the 
door  for  the  holder  to  employment  by  private 
business  institutions  of  the  highest  standing 
as  well  as  by  Federal,  State,  and  municipal 
governments.  Accordingly,  where  a  man  has 
been  apprehended  who  is  confessedly  guilty 
of  stealing  such  blanks,  he  should  not  be 
allowed  to  escape  too  lightly.  (File  26283- 
977:10,  June  2,  1916;  see  8  Comp.  Dec,  756.) 

Where  a  person  buys  and  sells  honorable- 
discharge  blanks  belonging  to  the  Navy,  it 
would  seem  that  he  is  guilty  of  violating  sec- 
tions 37  and  48  of  the  Criminal  Code  (35  Stat., 
1096,  1098).     (File  26509-163:2,  July  29,  1916.) 

Counterfeiting  honorable-discharge 
blanks. — AMiere  honorable  discharge  blanks 
are  counterfeited  and  sold,  it  is  possible  that 
prosecution  may  be  had  under  sections  148 
or  151  of  the  Criminal  Code  (35  Stat.,  1115, 
1116),  which  relate  to  counterfeiting  and  selling 
"  any  obligation  or  other  security  of  the  United 
States."  These  words  do  not  in  their  ordi- 
nary signification  include  honorable-discharge 
blanks,  but  by  section  147  of  the  Criminal  Code 
(35  Stat.,  1115)  they  are  given  a  broad  defini- 
tion, embracing  any  "representatives  of  value  " 
issued  under  any  act  of  Congress.  That 
honorable-discharge  certificates  are  "repre- 
sentatives of  value"  would  seem  clearly  to 
follow  from  an  examination  of  vari.ous  statutes 
relating  to  such  discharges.  [See  laws  noted 
above,  under  this  section.]  In  the  opinion 
of  the  Navy  Department  prosecution  may  l)e 
had  under  the  above  sections  of  the  Criminal 
Code,  but  this  is  a  question  to  be  decided  by 
the  Department  of  Justice.  (File  26509-163:2, 
July  29,  1916.  Congress  has  since  provided 
specifically  for  the  offense  of  forging,  etc.,  cer- 
tificates of  discharge.  See  act  Mar.  4,  1917, 
39  Stat.,  1182.) 


Sec.  1427.  [Enlisted  men,  form  of  honorable  discharge.]  Honorable  dis- 
charges shall  be  granted  accordmg  to  a  form  i^reseril)ed  by  the  Secretary  of  the 
Navy.— (2  Mar.,  1855,  c.  136,  s.  1,  v.  10,  p.  627.  7  June,  1864,  c.  Ill,  v.  13, 
p.  120.) 


Continuous  service  certificates. — On 
April  26,  1869,  the  Secretary  of  the  Navy  issued 
a  circular  providing  that  all  enlisted  men, 
except  officers'  cooks  and  stewards,  "will  re- 
ceive, upon  the  expiration  of  their  enlistments, 
if  they  shall  so  elect,  continuous-service  cer- 


tificates in  lieu  of  the  ordinary  or  honorable 
discharges  heretofore  issued";  and  providing 
additional  pay  for  persons  holding  continuous- 
service  certificates.  The  pro\dsions  of  this  cir- 
cular were  incorporated  in  Navy  Regulations, 
1870,  as  articles  1070  and  1071,  and  with  some 


569 


Sec.  1427. 


Pi.  2.  REVISED  STATUTES. 


The  Navy. 


verbal  changes  appear  as  paragraphs  18  and 
19,  Navy  Regulations,  1876.  These  regulations 
were  amended  by  General  Order  No.  327,  dated 
November  21,  1884,  which  provided  in  part  as 
follows:  "From  and  after  January  1,  1885,  the 
form  of  honorable  discharge  from  the  naval 
service,  authorized  by  section  1427,  Revised 
Statutes  of  the  United  States,  shall  be  the 
'honorable  discharge  and  continuous-service 
certificate.'"  After  this  order  there  was  no 
provision  for  issuing  continuous-service  certifi- 
cates, except  in  connection  vvdth  an  honorable 
discharge,  and  that  was  clearly  the  purpose  of 
the  general  order  of  November  21,  1884.  (16 
Comp.  Dec,  354.) 

"Any  man  who,  having  been  honorably  dis- 
charged, or  discharged  with  a  recommendation 
for  reenlistment,  shall  within  four  mouths  there- 
after, reenlist  for  four  years,  shall  receive  in  ex- 
change for  his  discharge  a  continuous-service 
certificate-  and  any  man  who  shall  have  agreed 
to  extend  nis  term  of  enlistment  for  an  aggregate 
of  four  full  years  shall  receive,  after  completing 
the  original  four  years  for  which  enlisted,  a  con- 
tinuous service  certificate  covering  that  period . ' ' 
(Art.  R-3529,  Navy  Regs.,  1913.) 

Form  of  honorable  discharge.— "When- 
ever any  enlisted  man,  not  holding  a  continuous- 
service  certificate,  is  discharged  from  the 
naval  service,  either  the  form  of  honorable  or 
that  of  ordinary  discharge  shall  be  used." 
(R-3611  (1),  Navy  Regs.,  1913.) 

"If  the  person  discharged  holds  a  continuous- 
service  certificate,  neither  form  of  discharge  will 
be  necessary,  but  the  appropriate  column  of  the 


certificate  shall  be  filled  out,  and  the  character 
of  the  discharge,  such  as  '  honorable, ' '  ordinary, ' 
'bad  conduct,'  or  'dishonorable'  shall  be  desig- 
nated therein;  if  either  of  the  last  two,  a  brief 
statement  of  the  cause  shall  be  made  in  an 
indorsement."  (R-3611  (3),  Navy  Regs., 
1913.) 

"Should  there  be  no  honorable  discharge 
forms  at  hand  upon  the  expiration  of  the  term 
of  enlistment  of  any  person  who  is  entitled  to 
receive  one,  an  ordinary  discharge  form  may  be 
used;  the  words  'entitled  to  honorable  dis- 
charge,' however,  must  be  written  across  the 
face  and  signed  by  the  commanding  officer. 
The  holder  thereof  may,  by  communicating 
with  the  Bureau  of  Navigation,  Navy  Depart- 
ment, exchange  such  a  paper  for  an  honorable 
discharge."     (R-3613,  Navy_  Regs.,  1913.) 

The  form  of  honorable  discharge  which  has 
been  prescribed  by  the  Secretary  of  the  Navy 
under  authority  of  this  section  (N.  Nav.  56, 
July,  1921)  is  headed  "Honorable  Discharge 
from  the  United  States  Navy,"  has  a  serial 
number,  an  engraving  representing  a  battleship 
at  sea,  is  signed  by  the  commanding  oflacer, 
bears  notation  as  to  the  rating  the  man  is  best 
qualified  to  fill,  and  reads  as  follows: 

'  'This  is  to  Certify  that is  hon- 
orably discharged  from  the and 

from  the  Naval  Service  of  the  United  States, 
this day  of " 

On  the  reverse  of  the  discharge  form  is  given 
the  enlistment  record  and  descriptive  list  of  the 
man  to  whom  issued,  together  with  certificate 
of  final  payment. 


570 


CHAPTER  TWO. 


GENERAL   PROVISIONS   RELATING   TO   OFFICERS. 


Sec. 

1428.  Citizenship  of  officers. 

1429.  Report  to  be  made  of  men  entitled  to 

honorable  discharge. 

1430.  Sale  of  wages  to  be  discouraged. 

1431.  Leave  and  liberty  to  be  granted  by  com- 

manding officer. 

1432.  Commanding  officers  not  required  to  act 

as  pay  officers. 

1433.  Cormnanding  officers  may  exercise  con- 

sidar  powers. 

1434.  Commanding  officers  of  squadrons  to  have 

rank  of  "flag  officer. " 

1435.  First  lieutenants,  na^'igation,  and  watch 

officers. 


Sec. 

1436.  Sea  service;  staff  officers  who  have  been 

chiefs  of  bureaus. 

1437.  Detail    of    officers    for    service    of    War 

Department. 

1438.  Officers  to  act  as  storekeepers  on  foreign 

stations. 

1439.  Bonds  of  officers  acting  as  storekeepers. 

1440.  Appointments  in  diplomatic  or  consular 

servdce. 

1441.  Officers  dismissed,  or  resigning  to  escape 

dismissal. 

1442.  Furlough  of  officers. 


Sec.  1428.  [Citizenship  of  officers.]  The  officers  of  vessels  of  the  United 
States  shall  in  all  cases  be  citizens  of  the  United  States. — (28  June,  1864,  c. 
170,  s.  1,  V.  13,  p.  201.) 


Acting  pay  clerks,  pay  clerks,  and  chief  pay 
clerks  must  be  citizens  of  United  States. 
(See  act  Mar.  3,  1915,  38  Stat.,  942.) 

American  citizenship  in  general.  (See  Con- 
stitution, fourteenth  amendment,  and  Art. 
I,  sec.  8,  clause  4.) 

Army  officers  appointed  in  time  of  peace  not 
to  be  paid  compensation  unless  citizens  of 
the  United  States.  (Act  Aug.  29,  1916,  39 
Stat.,  649.) 

Dental  Corps  officers  must  be  citizens  of  United 
States.  (See  act  Aug.  29,  1916,  39  Stat., 
573,  as  amended  by  act  July  1,  1918,  40 
Stat.,  709.) 

Enlisted  men  of  Navy  required  to  be  citizens, 
with  certain  exceptions.  (See  art.  R-3524 
(1),  Na\^  Regs.,  1913.) 

Members  of  Naval  Fh'ing  Corps  must  be  citi- 
zens of  the  United  States.  (See  act  Aug. 
29,  1916,  39  Stat.,  582.) 

Members  of  the  Naval  Reserve  Force  must  be 
citizens  of  United  States  or  of  its  insular 

Eossessions    (see   act    Aug.    29,    1916,    39 
tat.,  587);  or  must  have  declared  their  in- 
tention to  become  citizens  (act  May  22, 
1917,  40  Stat.,  84.) 
Natirralization  of  aliens  who  have  served  in 
Navy  or  Marine  Corps  (act  May  9,  1918, 
40  Stat.,  542);  or  in  Naval  Reserve  Forc« 
(act  May  22,  1917,  40  Stat.,  84.) 
Regulations    concerning    citizenship. — 
The    Navy   Regulations,    1913    (art.    R-3301), 
pro^dde  that   "no  person  shall  be  appointed 
to  any  office  in  the  Navy  unless  he  is  a  citizen 
of  the  United  States." 

Alien  may  legally  be  appointed  to  Naval 
Academy  as  midshipman,  but  can  not  be 
commissioned  unless  naturalized. — "There 


is  no  statute  explicitly  making  citizenship  a 
condition  precedent  to  eligibility  to  appoint- 
ment to  the  Naval  Academy  as  a  midshipman, 
but  inasmuch  as  officers  of  the  Navy  must  be 
citizens,  a  midsliipman  can  not  be  commis- 
sioned an  ensign  if  he  be  an  alien."  (Asst. 
Sec.  of  the  Na^^  to  Hon.  J.  Van  Vechten 
Olcott,  M.  C,  Nov.  1,  1907;  followed,  Nov. 
26,  1912,  file  26252-71;  Mar.  22,  1913,  file 
26252-71:1;  Aug.  29,  1913,  file  26252-71:2;  May 
15,  1915,  file  5252-68.) 

Where  an  alien  appointed  to  the  Naval 
Academy  as  a  midshipman  delays  taking  the 
necessary  steps  to  be  natiuralized  until  it  is 
too  late  for  him  to  complete  his  naturalization 
by  date  of  graduation,  held,  that  he  can  not  be  ' 
commissioned  as  an  ensign  upon  graduation, 
unless  naturalized  by  a  special  act  or  joint 
resolution  of  Congress,  as  was  done  in  the  case 
of  Eugene  Prince,  Julv  19, 1912  (37  Stat.,  1346; 
file  26252-71,  Nov.  26,  1912).  Held,  further, 
that  the  midshipman  in  this  case  could  not 
be  lawfully  allowed  to  graduate  as  an  alien, 
and  su]>sequently  be  commissioned  as  an  ensign, 
upon  being  naturalized,  with  rank  from  date 
of  graduation,  as  this  would  be  accomplishing 
indirectlv  what  the  law  does  not  allow  to  be 
done  directly.  (File  26252-71:1,  Mar.  22,  1913; 
file  26252-71:2,  Aug.  29,  1913.) 

It  having  been  decided  by  the  Navj'  De- 
partment, during  a  previous  administration, 
that  a  certain  midshipman  could  not  be  com- 
missioned as  ensign  if  he  be  an  alien,  the  case 
has  thereby  become  res  judicata,  and  can  not 
be  reopened,  nor  should  it  be  referred  to  the 
Attorney  General  for  an  opinion  as  to  the  cor- 
rectness of  the  previous  decision.  (File 
26252-71:2,  Aug.  29,  1913.) 


54641°— 22- 


37 


571 


Sec.  1428. 


Ft.  2.  REVISED  STATUTES. 


The  Navy, 


[In  the  case  noted  above,  Congress  passed  a 
special  act,  May  9,  1914  (38  Stat.,  1268),  which 
was  amended  by  another  special  act,  May  21, 
1914  (38  Stat.,  1268),  authorizing  the  issuance 
of  a  commission  to  the  alien  midshipman  upon 
graduation,  with  a  pro^^so  that  he  should  cease 
to  be  an  officer  of  the  Navy  if  not  naturalized 
by  a  specified  date.  See  hearings  before  Com- 
mittee on  Immigration  and  Naturalization, 
House  of  Representatives,  September  11,  1913, 
file  26252-71:3.] 

According  to  the  doctrine  of  stare  decisis, 
whose  application  in  this  country  is  as  old  aa 
the  Government  itself,  the  department's 
ruling  of  November  1,  1907  [above  noted|, 
concenung  the  citizenship  of  midshipmen 
and  the  ineligibility  of  aliens  for  appointment 
as  officers  of  the  Navy,  should  not  now  be  dis- 
turbed. "It  is  almost  as  important  that  the 
law  should  be  settled  permanently  as  that  it 
should  be  settled  correctly.  Its  rules  should 
be  fixed  deliberately  and  adhered  to  firmly, 
unless  clearly  erroneous.  Vacillation  is  a 
serious  e^dl.' •  (Gilman  v.  Philadelphia,  3 
Wall.,  724.)  Accordingly,  held  that  the  ques- 
tion of  citizenship  should  be  regarded  as  settled 
in  accordance  with  the  previous  rulings  of  the 
department.     (File  5252-68,  Ma>  15,  1915.) 

Since  the  department's  nding  of  November 
1,  1907  [above  noted],  the  entire  tendency  of 
the  Government,  both  in  laws  which  have  since 
been  enacted  and  in  regulations  which  have 
since  been  promulgated,  has  been  to  insist  upon 
citizenship  precedent  to  appointment  in  the 
naval  service  in  any  capacity,  either  as  an 
officer  or  as  an  enlisted  man.  Accordingly, 
while  the  department  has  decided  that  the 
statutes  do  not  specifically  prohibit  the  appoint- 
ment of  an  aHen  to  the  Naval  Academy  as  a 
midshipman,  such  a  prohibition  may  be  em- 
bodied in  the  regulations,  and  this  would  avoid 
reciurence  of  the  difficulties  which  arose  out  of 
the  case  above  noted,  in  which  an  alien  passed 
through  the  Naval  Academy  as  a  midshipman, 
but  much  voluminous  correspondence  and  two 
separate  acts  of  Congress  were  required  before 
he  coidd  be  commissioned  as  an  ensign  upon 
graduation  prior  to  naturalization.  (File 
5252-68,  May  15,  1915.) 

Paragraph  14  of  the  "Regulations  governing 
the  admission  of  candidates  into  the  U.  S. 
Naval  Academy  as  midshipmen,"  1916,  pro- 
vides that  "all  candidates  are  reqidred  to  be 
citizens  of  the  United  States." 

Officers  of  the  Naval  Auxiliary  Service. — 
"Hereafter,  in  shipping  officers  and  men  for 
service  on  board  United  States  auxiliary  ves- 
sels, preference  shall  be  given  to  members  of 
the  Naval  Reserve  Force,  and  after  two  years  . 
from  the  date  of  approval  of  this  act  no  person 
shall  be  shipped  for  such  service  who  is  not  a 
member  of  the  Naval  Reserve  Force  herein 
provided."    (Act  Aug.  29, 1916,  39  Stat.,  589.) 

National  Naval  Volunteers. — Offices  held 
by  officers  of  the  National  Naval  Volunteers 
^Act  Aug.  29,  1916,  39  Stat.,  593)  being  offices 
in  the  Navy  within  the  meaning  of  Article 
Er-3301,  Navy  Regulations,  1913  [above  quoted], 
before  anyone  may  be  appointed  to  an  office  in 
the  National  Naval  Volunteers  he  must  not 
only  have  declared  his  intention  to  become  a 
citizen  but  he  must  in  fact  be  a  citizen.      (C. 


M.  O.  22-1917,p.  9;  file  3973-184,  Mar.  17,  1917. 
As  to  Naval  Militia,  see  file  3973-129,  Dec.  18, 
1915.  The  Inws  relating  to  the  National  Naval 
Volunteers  and  Naval  Militia  were  repealed  by 
act  July  1,  1918,  40  Stat.,  708;  the  laws  relating 
to  the  Naval  MiUtia  were  partially  and  tem- 
porarily revived  by  act  of  Jime  4,  1920,  40 
Stat..  817.) 

Status  of  officer  who  resumed  foreign 
citizenship  after  retirement. — Section  1428, 
Revised  Statutes,  has  for  many  years  been  re- 
garded as  requiring  that  officers  of  the  Navy  shall 
be  citizens  of  the  United  States.  Congress  has 
fully  and  completely  recognized  this  require- 
ment and  has  thereby  given  legislative  approval 
to  the  Navy  Department's  practice,  decisions, 
and  regulations  on  the  subject.  Accordingly 
held,  that  a  retired  machinist  forfeited  and 
abandoned  his  office  in  the  Na\^  by  ex- 
patriating liimself  and  resuming  his  foreign 
citizenship.  Citizenship  is  not  merely  a  con- 
dition precedent  to  appointment  in  the  Navy, 
but  is  a  qualification  necessary  in  order  to  con- 
tinue holding  office  therein.  The  act  of  an 
officer  in  vohnitarily  removing  an  essential 
qualification  would  seem  to  render  him  in- 
competent longer  to  hold  office,  and  this  is 
peculiarly  applicable  in  the  case  of  a  naval 
officer  who  renounces  allegiance  to  his  own 
Government  and  assimies  allegiance  to  a  foreign 
state.  Retired  officers  under  the  law  are  in 
time  of  war,  under  section  1462,  Revised 
Statutes,  available  for  any  duty  which  may  be 
reqidred  of  them.  In  view  of  section  1428, 
Revised  Statutes,  it  would  be  unlawful  to 
employ  this  officer  on  board  any  vessel  in  liis 
capacity  as  a  machinist,  whose  paramount  duty 
in  time  of  war  woidd  be  on  board  fighting  ships. 
(File  26252-105:3,  Oct.  19,  1916;  see  Gay  v. 
U.  S.,  No.  33756,  Ct.  Cls.) 

Residence  of  officers  in  foreign  coun- 
tries.— It  is  the  opinion  of  the  Judge  Advocate 
General  that  officers  of  the  Navy,  who  are 
required  to  be  citizens  of  the  United  States, 
are  also  required,  in  accordance  with  the 
customs  of  the  service,  considerations  of  policy, 
and  the  desirability  of  maintaining  amicable 
relations  with  other  nations,  to  have  their  legal 
residence  in  the  United  States  or  one  of  its 
possessions.  The  Navy  Regulations  (art.  234, 
par.  2, 1909),  providing  that  "no  officer,  active 
or  retired,  shall  change  his  usual  residence  with- 
out permission  of  the  Bureau  of  Navigation," 
did  not  contemplate  that  permission  would  be 
granted  for  an  officer  to  reside  outside  of  the 
United  States.  This  is  made  plain  by  other 
pro\'isions  of  the  Regulations  (art.  1526,  1909) 
that  "permission  to  leave  the  United  States 
will  be  granted  only  by  the  Secretary  of  the 
Navy.''  Serious  complications  might  grow 
out  of  the  situation  which  would  exist  were  an 
officer  of  the  Navy  permitted  to  have  his  legal 
residence  in  a  foreign  country.  This  is  indi- 
cated by  decisions  of  the  State  Department 
with  reference  to  the  citizenship,  allegiance, 
right  to  protection  in  person  or  property,  status 
in  event  of  war,  etc.,  of  persons  who,  while 
citizens  of  the  United  States,  voluntarily 
mthdraw  their  persons  and  property  from  the 
country  and  become  and  remain  domiciled  in 
foreign  countries.  (File  17606-49,  Dec.  17, 
1912.) 


572 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1430. 


ment;  and  that  the  case  in  this  respect  is  to  be 
distinguished  from  one  in  which  an  officer  had 
deliberately  concealed  disabilities  rendering 
him  ineligible  for  appointment.  Further  held, 
that  the  qualifications  of  the  officer  are  presumed 
to  have  been  ascertained  and  found  satisfactory 
pre^-ious  to  his  appointment  to  the  office  of 
chief  pay  clerk,  and  that,  in  the  absence  pf 
fraud,  his  qualifications  can  not,  under  certain 
conditions,  thereafter  be  inquired  into,  al- 
though it  should  be  claimed  that  he  did  not 
possess  the  statutory  qualifications  for  appoint- 
ment. (File  5460-82,  June  3,  1916,  citing  28 
Op.  Atty.  Gen.,  180,  as  to  conclusiveness  of 
appointment  as  establishing  qualifications  for 
the  office.  But  see  31  Op.  Atty.  Gen.,  419, 
noted  under  Constitution,  Art.  II,  sec.  2, 
clause  1,  subheading  "Constructive  pardon.") 


Appointment  as  ofl&cer  after  forfeiting 
citizenship  by  desertion. — An  appointment 
as  a  commissioned  officer  in  the  Navy,  to  wit, 
chief  pay  clerk,  was  issued  by  the  President, 
by  and  with  the  advice  and  consent  of  the 
Senate,  to  a  convicted  deserter  from  the  Army, 
who  had  forfeited  his  right  of  citizenship  and 
been  rendered  forever  incapable  of  holding  any 
office  of  trust  or  profit  under  the  United  States. 
(Sees.  1996  and  1998,  R.  S.)  Wlaen  said  com- 
mission was  issued,  it  was  of  record  in  the  Navy 
Department  that  the  othcer  was  a  convicted 
deserter  from  the  Army.  Ildd,  that,  while 
not  free  from  doubt,  by  a  liberal  interpretation, 
the  President's  action  in  commissioning  this  offi- 
cer under  the  circumstances  stated  may  be  re- 
garded as  a  constructive  pardon  so  as  to  remove 
the  disabilities  imposed  by  law  and  which 
would  otherwise  have  prevented  his  appoint- 

Sec.  1429.  [Report  to  be  made  of  men  entitled  to  honorable  discharge.] 
It  shall  be  the  duty  of  every  commanding  officer  of  a  vessel,  on  retm-ning  from 
a  cruise,  and  immediately  on  his  arrival  in  port,  to  forward  to  the  Secretary 
of  the  Navy  a  hst  of  the  names  of  such  of  the  crew  who  enhsted  for  three 
yeai-s  as,  in  his  opinion,  on  being  discharged,  are  entitled  to  an  ''honorable 
discharge"  as  a  testimonial  of  fidehty  and  obedience;  and  he  shall  grant  the 
same  to  the  persons  so  designated. — (2  Mar.,  1855,  c.  136,  s.  1,  v.  10,  p.  627.) 

See  section  1426,  Revised  Statutes,  and  note  thereto,  concerning  honorable  discharges  in 
general . 

Sec.  1430.  [Sale  of  wages  to  be  discouraged.]  Every  commanding  officer 
of  a  vessel  is  required  to  discourage  his  crow  from  selhng  any  part  of  their 
prize-money,  bounty-money,  or  wages,  and  never  to  attest  any  power  of  attorney 
for  the  transfer  thereof  until  he  is  satisfied  that  the  same  is  not  granted  in  con- 
sideration of  money  given  for  the  purchase  of  prize-money,  bounty-money,  or 
wages.     [See  §  4643.]— (30  June,  1864,  c.  174,  s.  12,  v.  13,  p.  310.) 

Allotments  of  pay  by  officers  of  the  Navy  are  au- 
thorized by  act  of  June  10,  1896  (29  Stat., 
361). 

Allotments  of  pay  by  enlisted  men  in  the  mili- 
tary or  naval  forces  of  the  United  States 
are  authorized  by  act  of  October  6,  1917, 
Art.  II  (40  Stat.,  402,  as  amended). 


Allotments  of  pay  by  enlisted  men  of  the  Army 

are  permitted  by  act  of  March  2, 1899,  sec. 

tion  16  (30  Stat.,  981),  and  act  of  March  2, 

1901  (31  Stat.,  896). 
Assignments  of  prize  or  bounty  money  were 

regulated  by  section  4643,  Revised  Statutes. 

Assignments  of  wages  by  enlisted  men  of  the 
Navy  are  void  unless  authorized  by  com- 
manding and  pay  officers.  (Sec.  1576,  R.  S.; 
but  see  Act  Oct.  6,  1917,  40  Stat.,  403,  sec. 
202,  as  to  allotments.) 

Assignments  of  claims  against  United  States  are 
prohibited,  with  certain  exceptions,  by 
section  3477,  Revised  Statutes. 

Assignments  of  wages  by  merchant  seamen  are 
prohibited,  with  certain  exceptions,  by  sec- 
tion 4536,  Revised  Statutes. 

Assignments  of  pay  by  employees  of  the  Depart- 
ment of  Asriculture  are  permitted  by  act 
of  March  4^1909  (35  Stat.,  1057). 


Assignments  of  pay  by  employees  of  the  Coast 
and  Geodetic  Survey  are  permitted  by  act 
of  March  4,  1907  (34  Stat.,  1322). 

Assignments  of  pay  by  employees  of  the  Geo- 
logical Survey  are  permitted  by  act  of  June 
30,  1906  (34  Stat.,  727). 

Assignments  of  pay  by  employees  of  the  Recla- 
mation Service  are  permitted  by  act  of  May 
27, 1908  (35  Stat.;,  350). 

Assignments  of  pay  by  commissioned  officers 
of  the  Armv  are  permitted  by  act  of  March 
2,  1907  (34  Stat.,  1159),  and  act  of  March  2, 
1913  (37  Stat.,  710). 

Assignments  of  pay  by  noncommissioned  offi- 
cers and  privates  of  the  Army  are  prohibited 
by  section  1291,  Revised  Statutes. 

Assignments  of  pensions  are  prohibited  by  sec- 
tion 4745,  Revised  Statutes,  as  amended  by 
act  of  February  28, 1883,  section  2  (22  Stat., 
432). 

Bounty  monej  and  prize  money  were  abolished 
by  Navy  personnel  act  of  March  3,  1899, 
section  13  (30  Stat.,  1006). 

Deposit  of  savings  by  enlisted  men  of  the  Navy 

is  authorized  by  act  of  February  9, 1889  (25, 

Stat.,  657);  and  by  enlisted  men  of  Marino 

Corps  by  act  of  June  29, 1906  (.34  Stat.,  579). 

Attachment  of  wages  by  creditors. — '  The 

important  question  is,  whether  the  money  in 


573 


Sec.  1432. 


Pt.2.  RE  VISED  S  TA  T  UTES . 


The  Navy. 


the  hands  of  the  purser,  thonsh  due  to  the  sea- 
men for  wages,  was  attachable.  A  purser,  it 
would  seem,  can  not  in  this  respect,  be  distin- 
giiished  from  any  other  disbursing  agent  of  the 
Government.  If  the  creditors  of  these  seamen 
may,  by  process  of  attachment,  divert  the 
public  money  from  its  legitimate  and  appro- 
priate object,  the  same  thing  may  be  done  as 
regards  the  pay  of  our  officers  and  enlisted  men 
of  the  Army  and  of  the  Navy;  and  also  in  every 
other  case  where  the  public  funds  may  be 
placed  in  the  hands  of  an  agent  for  disbursement. 
To  state  such  a  principle  is  to  refute  it.  No 
government  can  sanction  it.  At  all  times  it 
would  be  found  embarrassing  and  under  some 


circumstances  it  might  be  fatal  to  the  public 
service.  The  funds  of  the  Government  are 
specifically  appropriated  to  certain  national 
objects,  and  if  such  appropriations  might  be 
diverted  and  defeated  by  State  process  or 
otherwise,  the  functions  of  the  Government 
might  be  suspended.  So  long  as  money 
remains  in  the  hands  of  a  disbursing  officer,  it 
is  as  much  money  of  the  United  States  as  if  it 
had  not  been  drawn  from  the  Treasiiry.  Until 
paid  over  by  the  agent  of  the  Government  to 
the  person  entitled  to  it,  the  fund  can  not  in  any 
legal  sense  be  considered  a  part  of  his  effects. 
The  purser  is  not  the  debtor  of  the  seaman." 
(Buchanan  v.  Alexander,  4  How.,  19.) 


Sec.  1431.  [Leave  and  liberty  to  be  granted  by  commanding  officer.]  It 
shall  be  the  duty  of  commanding  oflftcers  of  vessels,  in  granting  temporary 
leave  of  absence  and  Hberty  on  shore,  to  exercise  carefully  a  discrimination  in 
favor  of  the  faithful  and  obedient.— (2  Mar.,  1855,  c.  136,  s.  3,  v.  10,  p.  627.) 


Deprivation  of  liberty  on  shore  may  be  in- 
flicted by  commanding  officer  upon  enlisted 
men  as  a  punishment,  by  authority  of  sec- 
tion 1624,  Revised  Statutes,  article  24. 
Deprivation  of  liberty  on  shore  on  foreign 
station  maybe  inflicted  upon  enlisted  men 
by  sentence  of  summary  court-martial,  im- 
der  section  1624,  Revised  Statutes,  article 
30,  or  by  sentence  of  deck  court,  imder  act 
of  February  16,  1909,  section  2  (35  Stat., 
621). 
Furlough  of  officers  by  Secretary  of  the  Navy. 

(Sec. 1442,  R.  S.) 
Fiulough  without  pay  to  enlisted  men,  subject 
to  recall  in  time  of  war  or  national  emer- 
gency.     (Act    Aug.    29,    1916,    39    Stat., 
580.) 
No  pay  allowed  officers  and  enlisted  men.  Navy 
or  Marine  Corps,  absent  on  account  of  in- 
jury, sickness  or  disease  resulting  from  their 
own  misconduct.     (Act  Aug.  29,  1916,  39 
Stat.,  580,  as  amended  bv  act  July  1, 1918, 
40  Stat.,  717.) 
Liberty  granted  according  to  conduct. — 
"The  granting  of  liberty  on  shore  and  other 
privileges  will  depend  upon  the  conduct  class, 
and  the  commander  in  chief   shall    establish 
rules  defining  the  privileges  or  restrictions  for 
each  class,  which  shall  be  uniform  throughout 
his  command."     (Art.  R-3668  (8),  Navy  Regs., 
1913.) 

"First-class  conduct  men  shall  be  allowed 
every  indulgence  compatible  with  the  demands 
of  duty  and  with  the  exigencies  of  the  service; 
and  in  respect  to  privileges  a  clear  distinction 
should  be  made  between  them  and  men  in 
the  second-conduct  class.  Special  privileges 
shall  be  allowed  to  the  special  first  class  when 
it  is  possible  to  extend  them  to  a  small  number 
only."     (Art.  R-3668  (9),  Navy  Regs.,  1913.) 


Only  commanding  oflS.cer  to  grant  leave 
or  liberty. — "\Mien  the  sanitary  or  other  con- 
ditions of  the  port  do  not  render  it  inadvisable, 
and  when  authorized  by  the  senior  officer 
present,  the  commanding  officer  shall  grant 
liberty  or  leave  of  absence  to  the  enlisted 
men,  but  such  liberty  or  leave  of  absence  shall 
not  be  granted  by  other  than  the  commanding 
officer."     (Art.  R-3710  (1),  Navy  Regs.,  1913.) 

Leave  of  absence  is  a  favor. — Neither  the 
Secretary  of  War  nor  any  officer  of  the  Govern- 
ment can  force  a  leave  of  absence  upon  an 
officer  or  soldier.  A  leave  of  absence  is  a 
favor  extended.  (Hunt  v.  U.  S.,  38  Ct.  Cls., 
709,  710;  11  Comp.  Dec,  570;  16  Comp.  Dec, 
613;  U.  S.  V.  Williamson,  23  Wall.,  415;  see 
sec.  1442,  R.  S.,  and  note  to  sec  416,  R.  S., 
under  "Suspension  of  employees." 

Special  duty  pay  not  allowed,  men  on 
leave. — Enlisted  men  of  the  Navy,  while  on 
leave  or  liberty  on  shore,  are  not  "serving" 
on  board  of  submarines  within  the  meaning  of 
Navy  Department  General  Order  No.  20,  of 
January  1,  1901,  allowing  additional  pay  to 
enlisted  men  "while  sei^ving  on  board  of  sub- 
marine vessels  of  the  Navy."  While  upon  au- 
thorized leave  they  are  not  in  the  performance 
of  such  service  or  duty  of  any  kind.  (19  Comp. 
Dec,  754,  citing  Colhoun  v.  U.  S.,  38  Ct.  Cls., 
198,  202.)  During  the  present  war  enlisted 
men  of  the  Navy  and  Marine  Corps  detailed 
as  gun  pointers  or  gun  captains  shall  be  entitled 
to  the  additional  pay  provided  for  such  detail 
"while  temporarily  absent  by  proper  authority 
from  the  place  where  ordinarily  required  to 
perform  duty  under  such  detail,"  (Act  Mar. 
29,  1918,  40  Stat.,  500.) 

Persons  on  leave  or  liberty;  status;  "line 
of  duty." — See  note  to  section  1451,  Revised 
Statutes. 


Sec.  1432.  [Commanding  officers  not  required  to  act  as  pay  officers.]  No 
commanding  officer  of  any  vessel  of  the  Navy  shall  bo  required  to  perform  the 
duties  of  a  paymaster,  passed  assistant  paymaster,  or  assistant  paymaster. — 
(17  July,  1861,  c.  4,  s.  4,  v.  12,  p.  258.) 


574 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1433. 


As  to  acting  appointment  of  pay  officers,  see 
section  1381,  Revised  Statutes,  and  note 
thereto. 

As    to    appointment    of    special     disbursing 

agents,  see  section  3614,  Revised  Statutes. 

The  -words  "paymaster,  passed  assistant 


paymaster,  or  assistant  paymaster,"  are 
interpreted  in  practice  as  meaning  "  supply 
officer."  (See  art.  848,  Navy  Regs.,  1920. 
As  to  grades  in  Supply  Corps,  see  note  to  sec. 
1376,  R.  S.) 


Sec.  1433.  [Commanding  officers  may  exercise  consular  powers.]  The  com- 
inanding  officer  of  any  fleet,  squadron,  or  vessel  acting  singly,  wlien  upon  the 
high  seas  or  in  any  foreign  port  where  there  is  no  resident  consul  of  the  United 
States,  shall  be  authorized  to  exercise  all  the  powers  of  a  consul  in  relation 
to  mariners  of  the  United  States. — (20  Feb.,  1845,  c.  17,  s.  2,  v.  5,  p.  725. j 

Any  naval  officer  accepting   appointment  in 

diplomatic  or  consular  service,  considered 

as  having  resigned  his  office.     (See  sec. 

1440,  R.  S.) 
Controversies  between  merchant  seamen  and 

officers  of  any  vessel  of  the  United  States, 

arising  at  sea  or  in  foreign  ports,  shall  be 

under  exclusive  jurisdiction  of   consular 

officers  of  the  United  States,  whenever  so 

stipulated  by  treaty  or  convention.     (Sec. 

4079,  R.  S.) 
Destitute  seamen  of  the  United  States  to  be 

returned  by  consuls  to  some  port  in  the 

United  States.     (Sec.  4577,  R.  S.) 
Marriages  may  be  performed  by  any  consular 

officer  of  the  United  States  in  a  foreign 

country,  between  persons  who  would  ])e 

authorized  to  marry  if  residing  in  the  Dis- 
trict of  Columbia.     (Sec.  4082,  R.  S.) 
Merchant  seamen  of  the  United  States  on  for- 
eign voyages  may  complain  to  any  com- 
manding officer  of  the  Navy  concerning 

unfit  water  or  provisions  furnished  them, 

and  such  commanding  officer  shall  make  an 

investigation,   and  if    complaint   is  well 

founded,  shall  make  a  report  to  the  master 

of  the  ship,  and  to  the  United  States  judge 

for  the  district  embracing  the  port  to  which 

such  ship  is  bound.     (Sec.  4565,  R.  S.) 

Similar  action  to  be  taken  in  cases  of  mer- 
chant seamen  bound  from  Atlantic  to  Pacific 

port  of  United  States  or  vice  versa.     (Sec. 

4565,  R.  S.)     Laws  relating  to  seamen  on 

foreign  voyages  shall  apply  to  seamen  on 

vessels  going  from  the  United  States  and 

its  possessions  to  Philippine  Islands.     (Act 

July  1, 1902,  sec.  84,  32  Stat.  711.) 
Notarial  acts,  which  any  notary  public  is  re- 

qiured  or  authorized  by  law  to  do  within 

the  United  States,  shall  be  performed  by 

any  consular  officer  when  application  is 

made  to  him  therefor.     (Act  Apr.  5,  1906, 

sec.  7,  34  Stat.,  101;  sec.  1750,  R.  S.)     No 

such  act^shall  be  valid  within  the  jurisdic- 
tion of   the    Government  of  the   United 

States,  unless  necessary  stamps  are  affixed 

and  canceled.     (Act  Apr.  5,  190G,  sec.  10, 

34  Stat.,  102.) 
Paymasters  of  the  Navy  on  foreign  stations  shall 

render,  when  practicable,  with  their  ac- 
counts,   official    certiiicate  from   resident 

consul,  vouching  that  all  purchases  and 

expenditures  were  made  at  the  ruhng  mar- 
ket prices.     (Sec.  3723,  R.  S.) 
Proceedings  in  regard  to  effects  of  deceased 

seamen  are  prescribed  by  sections  4539- 


4541,  Revised  Statutes,  and  act  of  March  3, 
1897,    section    4    (29    Stat.,   689).     With 
reference  to  deceased  persons  in  the  naval 
service,  provisions  for  disposition  of  their 
effects  are  made  by  act  of  March  29,  1918 
(40  Stat.,  499). 
Pro\isions  relating  to  consular  officers  are  con- 
tained in  Revised  Statutes,  sections  1689- 
1752. 
Pro\isions  relating  to  merchant  seamen  are 
contained   in   Revised   Statutes,    sections 
4501  to  4612. 
Testamentary  disposition  by  citizens  of  United 
States  dying  abroad  shall  be  strictly  ob- 
served by  consular  officers,  or  the  latter 
shall  officially  aid  any  person  appointed 
by  the  deceased  to  manage  his  property. 
(Sec.  1711,  R.  S.)    Consuls  shall  take  pos- 
session of  personal  estate  of  citizens  dying 
abroad  and  leaving  no  legal  representative, 
shall  inventory  same,  collect  debts  due,  sell 
perishable  articles,  etc.,  at  auction,  and 
transmit  balance  of  estate  to  the  Treasury 
of  the  United  States.     (Sec.  1709,  R.  S.) 
Marriages  on  board  naval  vessels. — ' '  The 
commanding  officer  of  a  ship  shall  not  perform 
a  marriage  ceremony  on  board;  nor  shall  he 
permit  one  to  be  performed  when  the  ship  is 
outside  of  the  territory  of  the  United  States, 
except  in  accordance  with  the  local  laws  and 
laws  of  the  State,    Territory,    or  district  in 
which  the  parties  are  domiciled,  and  in  pres- 
ence of  a  diplomatic  or  consular  official  of 
the  United  States,  who  has  consented  to  issue 
the  certificates  and  make  the  returns  required 
by  the  consular  regulations."     (Art.  847  Navy 
Regs.,  1920.) 

Destitute  American  seamen. — The  com- 
manding officer  of  a  naval  vessel,  by  authority 
of  the  senior  officer  present,  may,  when  on  a 
foreign  station,  receive  on  board  distressed 
seamen  of  the  United  States  for  passage  to  the 
United  States,  provided  they  bind  themselves 
to  be  amenable  in  all  respects  to  the  laws  and 
regulations  for  the  government  of  the  Navy. 
(Art.  905,  Navy  Regs.,  1920.) 

Merchant  vessels  needing  supplies  may  be 
furnished  with  such  as  can  be  spared,  for 
which  charge  shall  be  made  at  the  average 
price  of  the  sui^plies;  or,  in  case  of  extreme 
distress,  gratuitous  assistance  may  be  furnished. 
(Art.  1-4554,  Naval  Instructions,  1913.) 

The  senior  officer  present  may  require  the 
medical  officers  of  his  command  to  render 
professional  aid  to  persons  not  in  the  naval 
service  when  necessary  and  demanded  by  the 


575 


Sec.  1434. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


laws  of  humanity.  (Art.  685,  Navv  Rega., 
1920.) 

"In  the  absence  of  a  diplomatic  or  con- 
sular officer  of  the  United  States  at  a  for- 
QV^w  port  the  commander  in  chief,  as  senior 
olhcer  present,  has  authority  (a)  To  exercise 
the  powers  of  a  consul  in  relation  to  mariners 
of  the  United  States  (sec.  1433,  R.  S.);  (6).To 
communicate  or  remonstrate  with  foreign  civil 
authorities  as  may  be  necessary;  (c)  To  urge 
upon  citizens  of  the  United  States  the  neces- 
sity of  abstaining  from  participation  in  poUtical 
controversies  or  violations  of  the  laws  of  neu- 
traUty."     (Art.  720,  Navy  Regs.,  1920.) 

Juiisdiction  of  consular  and  military  of- 
ficers.— A  member  of  the  crew  of  an  Army 
transport  was  held  on  board  as  a  prisoner  upon 
the  charge  of  having  committed  an  offense 
against  a  Japanese  subject.  The  Japanese  au- 
thorities came  on  board  to  arrest  him,  but  the 
Army  officer  in  command  refused  to  surrender 
the  accused.  The  United  States  consul  re- 
quested the  commanding  officer  to  deliver  the 
man  to  the  Japanese  authorities,  but  this  was 
refused.  The  United  States  consul  then  asked 
the  commanding  officer  if  he  would  obey  the 
consuTs  order  to  tm-n  over  the  man  to  the  Japa- 
nese authorities  and  was  answered  in  the  nega- 
tive. Next  day  the  Japanese  procurator  with  a 
party  came  to  take  the  prisoner,  but  was  told  he 
would  only  be  gi^-en  up  by  exercise  of  superior 
force.  The  United  States  consul  then  told  the 
commanding  officer  that  he  would  not  be  al- 
lowed to  sail  until  the  matter  was  settled  be- 
tween the  United  States  and  the  Japanese  Gov- 
ernment, but  on  receiving  sailing  orders,  the 
Thomas  sailed,  after  the  commanding  officer 
had  assured  the  Japanese  authorities  that  the 
man  would  be  prosecuted  The  man,  who  was 
a  deserter  from  the  Navy,  was  later  turned  over 


to  the  naval  authorities  for  trial.  (File  5542-01, 
Aug.  20,  1900.  As  to  jurisdiction  of  diplomatic 
and  naval  authorities,  see  file  7760-2,  Aug.  13, 
1907;  4  Moore's  Dig.  616,  617.) 

Duty  to  advance  commercial  interests. — 
"  So  far  as  lies  within  their  power,  commanders 
in  chief,  di\dsion  commanders,  and  command- 
ing officers  of  ships  shall  protect  all  merchant 
vessels  of  the  United  States  in  lawful  occupa- 
tions, and  advance  the  commercial  interests  of 
this  country,  always  acting  in  accordance  with 
international  law  and  treaty  obligations." 
(Art.  726,  Navy  Regs.,  1920.) 

"  If  the  Navy  Department,  in  order  to  assist 
in  the  extension  of  United  States  trade  and 
commerce  and  to  carry  out  the  general  pur- 
poses indicated  in  the  application  by  the 
Department  of  State,  thinks  fit  to  send  an 
officer  of  the  Navy,  skilled  in  matters  of  ord- 
nance, to  a  South  American  capital,  it  is  en- 
tirely competent  for  the  Secretary  of  the  Navy 
to  direct  him  to  be  sent,  not  as  the  represent- 
ative of  a  private  person  or  company,  nor  in 
its  employment,  but  at  the  expense  of  the 
Government  as  a  representative  of  the  Navy 
Department  and  for  the  purpose  of  assisting 
all  Americans  whose  interests  are  such  as,  in 
the  opinion  of  the  Secretary,  to  justify  that 
proceeding."     (29  Op.  Atty.  Gen.,  45.) 

Merchant  seamen  as  prisoners  on  naval 
vessels. — "The  commanding  officer  of  a  ship 
shall  not,  while  on  a  foreign  station,  receive  on 
board  as  prisoners  seamen  from  merchant  ves- 
sels, unless  the  ^sitnesses  necessary  to  substan- 
tiate the  charges  against  them  are  also  received, 
or  adequate  means  adopted  to  insure  the  pres- 
ence of  such  witnesses  on  the  arrival  of  the 
prisoners  at  the  place  where  they  are  to  be 
handed  over  to  the  civil  authorities."  (Art. 
903,  Navj^  Regs.,  1920.) 


Sec.  1434.  [Commanding  officers  of  squadrons  to  have  rank  of  "flag 
officers."]  The  Presideut  may  select  any  officer  not  below  the  grade  of  com- 
mander on  the  active  list  of  the  Navy,  and  assign  him  to  the  command  of  a 
squadron,  with  the  rank  and  title  of  "flag-officer;"  and  any  officer  so  assigned 
shall  have  the  same  authority  and  receive  the  same  obedience  from  the  com- 
manders of  ships  in  his  squadron,  holding  commissions  of  an  older  date  than 
his,  that  he  would  be  entitled  to  receive  if  his  commission  were  the  oldest. — 
(21  Dec,  1861,  c.  1,  s.  4,  v.  12,  p.  329.) 

Assignment   of  retired    officers    to    command 

squadrons.     (See  sec.  1464,  R.  S.) 
Pay  of  officers  of  the  Navy  shall  be  based  on 

their  rank  and  length  of  service.     (Act  Aug. 

29,  1916,  39  Stat.";  581.) 
Rank  of  officers  not  to   be   changed,  except 

in  accordance  with  the  provi.sions  of  exist- 
ing law,  and  by  and  mth  the  ad\'ice  and 

consent  of  the  Senate.     (Sec.  1506,  R.  S., 

as  amended  by  act  June  17,  1878,  20  Stat., 

144.)  _ 
The    President    may    formulate    appropriate 

rules  governing  assignments  to  command  of 

vessels  and  squadrons.     (Act  Mar.  3,  1901, 

31  Stat.,  1133.) 
The  President  may  designate  six  officers  of  the 

Navy  for  command  of  fleets  or  subdivisions 

thereof,  not  more  than  three  to  have  the 


rank  of  admiral  and  the  others  the  rank  of 
vice  admiral ;  such  selections  in  time  of  war 
to  be  made  from  the  grades  of  rear  admiral 
or  captain  on  the  active  list,  and  in  time  of 
peace  from  among  rear  admirals  on  the 
active  list;  but  nothing  in  this  act  shall  be 
construed  to  amend  or  repeal  sections  1434, 
1463,    and    1464,  Revised  Statutes.     (Act 
May  22,  1917,  sec.  18,  40  Stat.,  89.) 
Flag  oflB.cers. — See  note  to  section   1407, 
Revised  Statutes,  as  to  who  are  flag  officers. 
By  act  of  January  16,  1857,  section  5  (11 
Stat.,  154),  it  was  provided  "that  captains  in 
command  of  squadrons  shall  be  denominated 
flag  officers."    This  provision  is  in  the  right 
direction,  toward  the  delivery  of  the  mind  of 
the  United  States  from  the  superstitious  influ- 
ences which  have  so  long  resisted  the  ascrip- 


576 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1435. 


tion  of  proper  names  of  command  to  superior 
officers  in  the  Navy,  while  admitting  such  in 
the  Army.  In  the  latter  it  never  seems  to 
have  been  supposed  that  paramount  considera- 
tions of  public  policy  require  us  to  stop  at  the 
rank  of  "captain"  and  to  apply  that  appella- 
tion indiscriminately  to  all  field  and  general 
officers.     (8  Op.  Atty.  Gen.,  337.) 

Precedence  of  officers  appointed  to  act 
in  any  grade. — See  Article  R-1048,  Navy  Reg- 
ulations, 1913,  noted  under  section  1410,  Re- 
vised Statutes. 

Appointments  by  President  without 
confirmation  of  Senate. — AMiere  the  statute 
provides  for  the  appointment  of  an  officer  by 
the  President,  without  requiring  the  consent 
of  the  Senate,  such  consent  is  unnecessary, 
and  the  President  may  make  such  appoint- 
ment without  submitting  the  same  to  the 
Senate  for  confirmation.  In  the  latter  case 
the  commission  may  be  signed  by  the  Secre- 
tary of  the  Navy  as  the  act  of  the  President. 
(22  Op.  Atty.  Gen.,  82;  see  also  note  to  sec. 
1369,  R.  S.  As  to  letter  signed  by  Secretary 
of  War,  by  direction  of  the  President,  consti- 
tuting a  commission,  see  O'Shea  v.  U.  S., 
28  Ct.  Cls.,  392,  noted  imder  Constitution, 
Art.  II,  sec.  2,  clause  3.) 

Form  of  assignment  to  duty  as  flag  of- 
ficer under  tills  section. — On  September  30, 
1889,  a  letter  was  addressed  by  the  Secretary  of 
the  Navy  to  "Acting  Rear  Admiral"  John  G. 
Walker,  U.  S.  N.,  as  follows: 

'  'You  are  hereby  appointed  an  acting  rear 
admiral  in  the  Navy  of  the  United  States,  such 
appointment  to  hold  good  while  in  command  of 
the  Squadron  of  Evolution. 

'  'You  are  authorized  to  hoist  the  flag  and 
wear  the  imiform  of  a  rear  admii'al,  and  to  affix 
the  title  of  rear  admiral  to  your  official  signa- 
ture." 

The  following  letter  was  addressed  by  the 
Secretary  of  the  Navy  to  '  'Rear  Admii-al"  Wil- 
liam T.  Sampson  April  21,  1898  (File  98039, 
Bu.  Nav.): 

"Under  the  authority  of  section  1434  of  the 
Revised  Statutes  of  the  United  States  you  are 
assigned  to  cormnand  the  United  States  Naval 
Force  on  the  North  Atlantic  Station,  -vnth  the 
rank  of  rear  admiral. 


"You  will  hoist  the  flag  of  a  rear  admiral, 
will  wear  the  uniform,  and  will  affix  that  title 
to  your  official  signature." 

On  May  28, 1908,  Oapt.  Seaton  Schroeder  was 
given  an  assignment  by  the  Secretary  of  the 
Navy,  as  follows:  "By  direction  of  the  Presi- 
dent, you  are,  under  authority  of  section  1434 
of  the  Revised  Statutes,  hereby  assigned  to  the 
command  of  the  Fourth  Division  of  the  Second 
Squadron  of  the  United  States  Atlantic  Fleet 
with  the  rank  and  title  of  rear  admiral.  You 
will  hoist  the  flag  of  a  rear  admiral,  wear  the  uni- 
forms of  that  grade,  and  afiix  that  title  to  your 
official  signature."     (Seel7Comp.Dec.,  54.) 

Officer  does  not  become  a  rear  admiral 
by  operation  of  tliis  section. — The  assign- 
ment of  a  captain  of  the  Navy  to  duty  as  rear 
admiral  by  authority  of  section  1434,  Revised 
Statutes,  does  not  make  such  officer  a  rear 
admiral  within-  the  meaning  of  the  law  (act 
May  13,  1908,  35  Stat.,  128)  providing  pay  for 
an  aid  to  a  rear  admiral.     (17  Comp.  Dec,  54.) 

The  chief  purpose  of  the  law,  shown  by  its 
terms,  was  to  give  to  the  officer  so  assigned 
command  over,  and  to  require  obedience  from, 
officers  of  a  higher  rank  or  rate  who  might  be 
serving  in  the  squadron.  It  is  noticed  that 
Captain  Schroeder  was,  by  the  letter  above- 
quoted,  assigned  to  the  command  of  a  division 
of  a  squadron,  and  not  of  a  squadron,  as  pro- 
vided m  section  1434,  with  the  rank  and  title 
of  "rear-admiral,"  while  section  1434  pro\ddes 
for  the  assignment  of  certain  officers  to  com- 
mand squadrons  with  the  rank  and  title  of 
"flag-officer."  This  assignment  did  not  make 
Captain  Schroeder  a  rear  admiral  within  the 
meaning  of  the  law  allowing  additional  pay  to 
officers  serving  as  aids  to  rear  admirals.  (17 
Comp.  Dec,  54.) 

There  is  no  law  which  authorizes  the  pay- 
ment to  an  officer  of  the  pay  of  rear  admiral 
while  he  was  accorded  that  rank  and  exercised 
the  duties  of  that  grade  by  dnection  of  the  Sec- 
retary of  the  Navy,  his  commission  being  only 
that  of  captain  or  of  commodore.  (Comp.  Dec, 
Dec.  16,  1899,  Appeal  No.  3215,  case  of  Rear 
Admiral  William  T.  Sampson.  But  see  act  of 
Aug.  29,  1916,  39  Stat.,  581,  providing  that  the 
pay  of  officers  of  the  Navy  shall  be  based  on 
their  rank  and  length  of  service.) 


Sec.  1435.  [First  lieutenants,  navigation,  and  watch  officers.]  Lieutenant 
commanders  may  be  assigned  to  duty  as  first  lieutenants  of  naval  stations,  as 
navigation  and  watch  officers  on  board  of  vessels  of  war,  and  as  first  lieutenants 
of  vessels  not  commanded  by  lieutenant-commanders. — (16  July,  1862,  c.  183, 
s.  3,  V.  12,  p.  584.     25  July,  1866,  c.  231,  s.  5,  v.  14,  p.  223.) 


Aid  or  executive  of  commanding  officer  of  a 
vessel  of  war  or  naval  station,  may  be  de- 
tailed by  the  Secretary  of  the  Navy.  (Sec. 
1469,  R.  S.) 

Ensigns  may  be  assigned  to  duty  as  watch 
officers.     (See  sec  1490,  R.  S.) 

Lieutenant  commanders  eligible  for  appoint- 
ment as  Chief  of  Bureau  of  Engineering 
(sec.  424,  R.  S.,  as  amended  by  acts  June 
7,  1900,  31  Stat.,  702,  and  June  4,  1920,  41 
Stat.,  828);  and  to  assist  the  Chief  of  Naval 
Operations  (act  Aug.  29,  1916,  39  Stat., 
558). 


President  shall  formulate  appropriate  rules  gov- 
erning assignments  to  command  of  vessels 
and  squadrons.  (Act  Mar.  3,  1901,  31 
Stat.,  1133,_  superseding  sec  1529,  R.  S., 
which  provided,  inter  alia,  that  vessels  of 
the  foiu-th  rate  shall,  as  nearly  as  practica- 
ble, be  commanded  by  lieutenant  com- 
manders.) 

Shore  duty,  officers  not  to  be  employed  on, 
except  in  cases  especially  provided  by  law, 
unless  the  Secretary  of  the  Navy  shall  de- 
termine that  employment  on  such  duty  is 
required  by  the  public  interests  and  shall  so 


677 


Sec.  1437. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Btate   in  the  order  of  employment.     (Act 

Mar.  3,  1883,  see.  2,  22  Stat..  481,  amended 

by  act  July  19,  1892,  27  Stat.,  245.) 
Vessels  in  actual  service  shall  be  officered  and 

manned    as    the    President    may   direct. 

(Sec.  153.5,  R.  S.) 
First  lieutenants. — "On  board  battleships 
and  armored  cruisers,  an  officer  of  the  rank  of 
lieutenant  commander  or  lieutenant  shall  bo 
assij^ned  to  duty  as  first  lieutenant,  ti  practi- 
cable, the  first  lieutenant  shall  be  the  line 
officer  on  board  next  in  rank  to  the  executive 
officer,  but  when  this  is  impracticable  he  may 
be  either  senior  or  junior  to  the  navigating 
officer,  gimnery  officer,  and  engineer  officer, 
one  or  all,  as  the  exigencies  of  the  service  may 
demand;  but  he  shall  be  senior  to  all  the  watch 
and  di^'ision  officers.  Commanding  officers  of 
battleships  and  armored  cruisers  may  detail  an 

Sec.  1436.  [Sea  service;  staff  officers  who  have  been  chiefs  of  bureaus.] 
Any  staff  officer  of  the  Navy  who  has  performed  the  duty  of  a  chief  of  a  bureau 
of  the  Navy  Department  for  a  full  term  shall  thereafter  be  exempt  from  sea 
duty,  except  in  time  of  war. — (3  Mar,,  1871,  c.  117,  s.  10,  v.  16,  p.  537.) 


officer  to  act  as  first  lieutenant  when  no  regular 
first  lieutenant  has  been  ordered  to  the  ship." 
(Art.  R-2301.  Navy  Regs..  1913.) 

"The  navigating  officer  is  the  officer  de- 
tailed by  the  department  to  perform  the  navi- 
gation duties  and  is  the  h.^ad  of  the  navigation 
department  of  the  ship.  The  navigating 
officer  shall  be  senior  to  all  watch  and  division 
officers."     (Art.  R-2401.  Na\-y  Regs.,  1913.) 

It  is  the  President's  right,  as  com- 
mander in  chief,  to  decide  according  to  his 
own  jiidgment  what  officer  shall  perform  any 
particular  duty.  Congress  could  not,  if  it 
would,  take  away  n*om  the  President  or  in  any- 
wise diminish  the  authority  conferred  upon 
him  by  the  Constitution.  (9  Op.  Atty.  Gen., 
462,  noted  imder  Constitution,  Art.  II,  sec.  2, 
clause  1.) 


mine  that  employment  in  such  duty  is  re- 
quired by  the  public  interests,  and  shall  so 
state  in  the  order  of  emplojTnent.  (Act 
Mar.  3,  1883,  sec.  2,  22  Stat.,  481,  amended 
by  act  July  19,  1892,  27  Stat.,  245.) 


As  to  appointment,  etc.,  of  chiefs  of  bureaus, 

see  sections  421^26,  Revised  Statutes,  and 

notes  thereto. 
Shore  duty,  officers  not  to  be  employed  on, 

except  in  cases  especially  provided  by  law, 

unless  the  Secretary  of  the  Navy  shall  deter- 

Sec.  1437.  [Detail  of  officers  for  service  of  War  Department.]  The  Pres- 
ident may  detail,  temporarily,  thi'ee  competent  naval  officers  for  the  service 
of  the  War  Department  in  the  inspection  of  transport  vessels,  and  for  such 
other  services  as  may  be  designated  by  the  Secretary  of  War. — (12  Feb.,  1862, 
C.21,  V.  12,  p.  338.) 


Detail  of  officers  for  service  with  the  Coast  and 
Geodetic  Survey,  under  the  Department  of 
Commerce,  is  authorized  by  sections  4684 
and  4687,  Revised  Statutes,  and  amend- 
ments thereto. 

Detail  of  officers  to  educational  institutions  is 
authorized  by  section  1225,  Revised  Stat- 
utes, as  amended,  and  other  laws  noted 
thereunder. 

Detail  of  officers  and  enlisted  men,  Navy  and 
Marine  Corps,  to  assist  Republic  of  Haiti. 
(Act  June  12,  1916,  39  Stat.,  223.) 

Detail  of  two  officers,  Na\'i',  to  assist  Republic 
of  Brazil.  (Res.  Oct*.  13,  1914,  38  Stat., 
780.) 

Detail  of  officers  to  assist  South  American  Re- 
publics.    (Act  June  5,  1920,  41  Stat.,  1056.) 

Detail  of  officers  and  enlisted  men  of  the  Navy 
and  Marine  Corps,  to  assist  the  Dominican 
Republic.  (Act  Feb.  11,  1918,  40  Stat., 
437.) 

Detail  of  medical  officers.  Navy,  for  duty  with 
American  National  Red  Cross  (act  Aug. 
29,  1916,  39  Stat.,  581);  and  for  duty  in 
connection  with  Bureau  of  War  Risk  Insur- 
ance (act  Oct.  6,  1917,  40  Stat.,  398). 

Detail  of  officers  to  act  in  lieu  of  ci\alian  light- 
house inspectors,  under  the  Bureau  of  Light- 
houses, Department  of  Commerce,  was  au- 
thorized for  a  period  not  exceeding  three 
years  by  act  of  June  17, 1910,  section  11  (36 


Stat.,  539),  wliich  act  also  repealed  sections 
4653  and  4671,  Revised  Statutes,  providing 
for  the  detail  of  officers  as  members  of  the 
Lighthouse  Board  and  as  lighthouse  in- 
spectors. 

Detail  of  officers  to  ocean  mail  vessels  is  author- 
ized by  act  of  March  3,  1891  (26  Stat.,  832). 

Detail  of  officers  for  such  duties  as  the  United 
States  &hipping  Board  may  deem  necessary 
in  connection  with  its  business  is  authorized 
by  act  of  September  7,  1916,  section  4  (39 
Stat.,  729). 

Heads  of  departments  are  required  to  render  all 
practicable  aid  to  the  Bureau  of  Fisheries, 
under  the  Department  of  Commerce.  (Sec. 
4397,  R.S.) 

President  is  authorized  to  utilize  the  service  of 
any  department  and  any  officer  or  agent  of 
the  United  States  in  the  execution  of  the 
selective-draft  law.  (Act  May  18,  1917, 
sec.  6,  40  Stat.,  80.) 

When  the  Na\y  Department  performs  any 
service  for  the  War  Department,  the  funds 
of  the  War  Department  may  be  placed 
subject  to  requisition  of  the  Navy  Depart- 
ment for  direct  expenditure  by  the  latter. 
(Act  Mar.  4,  1915,  38  Stat.,  1084.) 
Department   of  Justice. — The   detail   of 

officers  for  special  duty  under  the  Department 

of  Justice,  is  authorized  in  practice.     (See,  for 

example,  Navy  Register,  Jan.  1,  1917,  p.  335.) 


678 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1440. 


Duty  of  Navy  to  cooperate  with  -Axmy. — 
It  is  the  duty  of  the  Navy  to  cooperate  with 
the  Army,  both  being  branches  of  the  military 
service  of  the  United  States,  and  this  duty  of 
cooperation  authorizes  the  detail  of  a  naval 
constructor  for  duty  under  the  War  Depart- 
ment, without  additional  compensation.  (See 
Stocker  v.  U.  S.,  39  Ct.  Cls.,  300,  noted  under 
sec.  1404,  R.  S.;  see  also  7  Comp.  Dec, 
289.) 

Appropriation  chargeable  with  expenses 
of  ofla.cer  detailed. — It  is  the  general  rule  that 
where  an  officer  or  employee  of  one  executive 
department  performs  ser\dces  for  another  de- 
partment imder  proper  orders,  only  such  ex- 
penses as  are  extra  and  incurred  solely  l)y  reason 
of  such  duty  are  to  be  borne  by  the  department 
for  which  the  duty  is  performed.  However, 
where  the  officer  or  employee  performing  such 
duty  is  employed  imder  a  lump-sum  appropria- 
tion and  his  place  in  his  own  departmeutisfilled 
by  an  additional  i^erson  during  the  period  of 
such  duty,  all  expenses  incident  to  the  detached 
duty,  including  the  salary  of  such  officer  or  em- 
ployee and  his  subsistence  where  regularly  f  lu-- 
nished  under  his  contract  of  employment,  are  to 
be  borne  by  the  department  for  which  the  duty 
is  performed.     (22  Comp.  Dec,  145.) 

Where  a  hghthouse  tender,  with  officers  and 
crew,  is  used  in  mine-planting  practice  by  the 
War  Department,  only  extra  expenses  incident 
to  such  use,  such  as  the  cost  of  additional  fuel 
and  oil,  are  to  be  charged  to  the  War  Depart- 
ment, the  pay  of  the  officers  and  crew  and  their 
subsistence,  or  commutation  therefor,  being 
chargeable  to  the  Department  of  Commerce, 
under  which  they  are  regularly  employed.  (22 
Comp.  Dec,  145.) 

W^le  the  decisions  have  referred  to  transac- 
tions of  the  above  character  as  details  of  em- 
ployees, they  should  be  viewed  as  the  perform- 
ance of  ser\dce  by  one  department,  through  its 
existing  permanent  organization,  for  another 
department.  The  custom  is  that  such  ser\dce, 
when  small,  shall  be  given  as  a  matter  of  cour- 
tesy, and  when  of  some  substantial  value,  reim- 
biu*8ement  of  full  cost  shall  be  made,  in  order 
that  the  department  securing  the  service  shall 


not  secure  more  work  than  its  appropriation 
authorizes.     (22  Comp.  Dec,  145.) 

Where  a  vessel  of  the  Naval  Auxiliary  Serv- 
ice, with  officers  and  crew,  is  withdrawn  from 
its  regidar  duty  under  the  Navy  Department 
and  is  used  for  a  certain  period  in  transporting 
supplies  for  the  Department  of  Commerce,  the 
appropriation  for  that  department  available 
generally  for  the  transportation  of  such  suppUes 
is  chargeable  with  the  total  expenses  incurred  by 
the  Navy  Department  in  the  maintenance  and 
operation  of  the  vessel  during  such  period,  in- 
cluding the  pay  and  subsistence  of  the  officers 
and  crew.  (23  Comp.  Dec,  119,  distinguishing 
22  Comp.  Dec,  145.) 

There  was  no  detail  whatever  in  the  case 
noted  in  the  preceding  paragraph.  1 1  was  more 
in  the  natm-e  of  an  agreement  to  perform  a  serv- 
ice. The  officers  and  crew  in  the  Naval  Aux- 
iUary  Service  are  in  the  status  of  ci\dhan  crews. 
If  the  officers  are  not  required  for  service  on 
vessels,  they  are  fiu-loughed,  and  the  crew  being 
shipped  in  the  same  manner  as  for  service  on 
merchant  vessels,  are  not  shipped  imless 
needed  to  man  a  vessel.  They  have  no  perma- 
nent teniu-e  of  office,  and  if  a  vessel  of  the  Naval 
Auxihary  Ser\'ice  was  withdrawn  from  active 
ser\dce  for  a  period  of  37  days,  there  would  be 
no  expense  for  pay  and  sul)sistence  of  officers 
and  crew.  This  vessel  was  withdra\vn  from  her 
regular  duties  to  perform  a  service  for  and  at 
the  request  of  another  department  of  the  Gov- 
ernment, and  if  the  Department  of  Commerce 
had  not  seciu-ed  the  ser\ice  of  this  vessel,  it 
would  have  been  necessary  to  secure  a  mer- 
chant vessel.  This  was  a  ser\ice  of  substantial 
value,  for  which  reimbursement  of  full  cost 
should  be  made  in  order  that  the  Department 
of  Commerce  shall  not  secure  more  work  than 
its  appropriation  authorizes.  (23  Comp.  Dec, 
119.) 

As  to  right  of  medical  officer  of  the  Navy  to 
compensation  from  appropriations  under  con- 
trol of  the  Department  of  Justice  for  professional 
8er\ices  rendered  l)y  him  to  United  States  pris- 
oners in  a  United  States  jail,  see  note  to  section 
1368,  Revised  Statutes,  under  "  Medical  at- 
tendance to  persons  not  in  the  Navy." 


Sec.  1438.  [Officers  to  act  as  storekeepers  on  foreign  stations.]  The  Sec- 
retary of  the  Navy  shall  order  a  suitable  commissioned  or  warrant  officer  of 
the  Navy,  except  in  the  case  provided  in  section  fourteen  hundred  and  fourteen 
to  take  charge  of  the  naval  stores  for  foreign  squadrons  at  each  of  the  foreign 
stations  where  such  stores  may  be  deposited,  and  w^here  a  store-keeper  may  be 
necessary. — (17  June,  1844,  c.  107,  s.  1,  v.  5,  p.  700;  3  Mar.,  1847,  c.  48,  s.  3, 
V.  9,  p.  172.) 

See  note  to  section  1414,  Revised  Statutes. 

Sec.  1439.  [Bonds  of  officers  acting  as  storekeepers.]  Every  officer  so  acting 
as  store-keeper  on  a  foreign  station  shall  be  required  to  give  a  bond,  in  such 
amount  as  may  be  fixed  by  the  Secretary  of  the  Navy,  for  the  faithful  perform- 
ance of  his  duty. — (17  June,  1844,  c.  107,  s.  1,  v.  5,  pp.  700,  701.) 

On  general  subject  of  bonds,  see  note  to  section  1383,  Revised  Statutes. 

Sec.  1440.  [Appointments  in  diplomatic  or  consular  service.]  If  any  officer 
of  the  Navy  accepts  or  holds  an  appointment  in  the  diplomatic  or  consular 

579 


Pec.  1440. 


Pt.S.  REVISED  STATUTES. 


The  Navy. 


service  of  the  Government,  he  shall  be  considered  as  having  resigned  his  place 
in  the  Navy,  and  it  shall  be  filled  as  a  vacancy. — (30  Mar.,  1868,  c.  38,  s.  2,  v.  15, 

p.  oS.) 


Army  officers  are  prohibited  from  holding  offices 
in  diplomatic  or  consular  service  by  section 
1223,  Revised  Statutes. 
By  actof  March3, 1875,  section  2  (18  Stat.,  512), 
it  was  proxadod  that  certain  retired  officers 
of  the  Army  should  l>e  continued  on  the  re- 
tired list,  not\A'ithstandiiig  the  provisions  of 
section  2  of  act  of  March  30,  1868,  upon 
which  sections    1223    and  1440,   Revised 
Statutes,  are  based;  and  by  act  of  March  3, 
1891  (26  Stat.,  872),  the  accounting  officers 
of  the  Treasury  were  directed  to  allow  pay  to 
certain  retired  officers  of  the  Army  included 
in  act  of  March  3,  1875,  "notwithstanding 
such  officer  accepted  and  held  a  diplomatic 
or  consular  office." 
Consular  powers  may  be  exercised  by  Navy 
officers  in   certain  cases.     (See  sec.  1433, 
R.  S.) 
Legality    of   accepting    oflB.ce   in   diplo- 
matic or  consular  service  must  be  deter- 
mined by  oflELcer  upon  his  own  responsi- 
bility.— '"It  may  be,  and  doubtless  is,  a  subject 
of  reasonable  interest,   and  perhaps  of  great 
anxiety,  to  officers  of  the  United  States  Army  on 
the  retired  List  to  ascertain  [in  view  of  the  act  of 
July  31, 1894,  section2, 28  Stat.,  205]  'if  an  officer 
on  the  retired  list  of  the  Army  can  accept  a 
diplomatic  or  consular  appointment  and  still 
hold  his  position  on  the  retired  list  with  rank 
and  pay.'     But,  manifestly,  the  solution  of  that 
question  by  any  retired  officer  of  the  Army,  and 
the  course  of  conduct  which  he  may  adopt  in 
pursuance  of  such  solution,  is  a  matter  of  his 
private  concern  only  and  not  a  subject  wdth 
which  the  United  States  can  be  concerned  until 
some  action  has  been  taken  by  such  officer. 
*    *    *    If  Lieut.  Clay,  or  any  other  retired 
officer,  should  l;e  called  upon  to  determine  such 
question  in  his  own  case,  the  obvious  course  for 
him  to  piu-sue  is  that  which  is  open  to  every 
person  inclined  to  pursue  a  coiu"se  as  to  the  legal 
consequences  of  which  he  is  in  ignorance  or 
doubt.    He  should  seek  the  ad\'ice  of  private 
coimsel,  learned  in  the  law,  and  obtain  their 
opinion,  for  which,  if  given  without  due  care, 
such  counsel  can  be  held  to  personal  account- 
ability.   The  whole  matter,  as  it  seems  to  me, 
is  one  strictly  of  private  concern  and  in  no 
sense  of  pubUc  interest."     (21  Op.  Atty.  Gen., 
510;    file  9736-15,  Mar.  28,  1910;   file  9736-18, 
June  25,  1910.    See  also  21  Op.  Atty.  Gen., 
506;    compare  18  Op.  Atty.  Gen.;  11;  29  Op. 
Atty.  Gen.,  397;  29  Op.  Atty.  Gen.,  503.     For 
other  cases,  see  note  to  sec.  356,  R.  S.,  imder 
"III.  Must  Arise  in  Administration  of  Depart- 
ment.") 

Retired  oflicers  included  in  prohibition 
of  this  section. — Section  1223,  Revised 
Statutes  [which  is  similar  to  section  1440] 
applies  to  all  officers  of  the  Army,  whether 
upon  the  active  or  retired  Hst,  and  must  be 
deemed  to  enact  that  any  officer  upon  either 
list,  accepting  an  appointment  in  the  diplo- 
matic or  consular  service,  is  to  be  treated  as 
having  resigned  his  place  in  the  Army.  To 
section  1223  there  is  an  exception  made  by 


the  act  of  March  3,  1875,  which  provides  that 
a  certain  class  of  officers  therein  described,  who 
are  "borne  upon  the  retired  list,  shall  be  con- 
tinued thereon  notwithstanding  the  provisions 
of  section  two,  chapter  thirty-eight,  act  of 
March  thirtieth,  eighteen  hundred  and  sixty- 
eight,"  which  is  embodied  in  section  1223, 
Revised  Statutes.  Of  course,  the  officers 
therein  described,  even  if  accepting  an  ap- 
pointment in  the  consular  or  diplomatic  serv- 
ice, would  not  vacate  their  commissions.  (15 
Op.  Atty.  Gen.,  306.) 

The  act  of  March  30,  1878,  appUed  to  officers 
on  the  retired  as  well  as  on  the  active  list,  and  it 
made  the  acceptance  of  the  diplomatic  vacate 
the  military  office,  eo  instanti,  the  vacancy  thus 
created  necessarily  continuing  imtil  filled  in 
the  usual  way.     (19  Op.  Atty.  Gen.,  610.) 

A  retired  officer  is  not  precluded  from  holding 
a  ci\'il  office  under  the  United  States  Govern- 
ment except  as  prohioited  bv  statute.  (15  Op. 
Atty.  Gen.,  306.) 

Captain  Badeau's  Case. — In  1870,  Captain 
Adam  Badeau,  U.  S.  Army,  retired,  was  ap- 
pointed to  and  accepted  the  office  of  consul  gen- 
eral at  London.  After  his  appointment,  his 
name  continued  to  be  borne  on  the  Army  Regis- 
ter as  a  retired  officer,  but  he  was  not  paid  as 
such.  He  was  not  of  the  class  of  retired  officers 
described  in  the  first  proviso  of  section  2  of 
the  act  of  March  3, 1875,  chapter  178:  Held,  upon 
consideration  of  the  provisions  of  sections  1094 
and  1223,  Re\ised  Statutes  [the  former  pro- 
viding that  the  Army  shall  consist,  inter  alia, 
of  ■' the  officers  of  the  Army  on  the  retired  list"], 
the  latter  embodying  so  much  of  section  2,  act 
of  March  30,  1868,  chai)ter  38,  as  related  to 
officers  of  the  Army,  advised,  that  Badeau  haa 
ceased  to  be  a  retired  officer  of  the  Array  by 
effect  of  the  statutory  pro^dsion  embodied  in 
section  1223,  and  that  his  name  can  not  legally 
be  continued  on  the  retired  list.  (15  Op. 
Atty.  Gen.,  407;  see  also  2  Comp.  Dec,  7, 
citing  decision  of  Second  Comptroller  Upton, 
June  18,  1883,  and  decision  of  Second  Comp- 
troller Gilkeson,  Apr.  15,  1890;  and  see  1? 
Comp.  Dec,  441.) 

The  cases  of  General  Sickles  and  Captain 
Badeau  are  alike  in  all  material  respects.  It 
appears  that  each  of  these  officers,  after  being 
placed  on  the  retired  list,  accepted  in  1869 
an  appointment  in  the  diplomatic  service. 
General  Sickles  remained  in  that  service  until 
April,  1874.  Captain  Badeau  remained  therein 
only  a  few  months,  but  subsequently,  in  1870, 
entered  the  consular  service,  wherein  he  held 
an  appointment  for  several  years.  In  the 
meantime,  they  were  each  actually  borne  on 
the  retired  list  and  have  since  been  continued 
thereon.  Their  right  now  [December  31,  1888] 
to  be  borne  on  the  retired  list  depends  upon  the 
operation  and  effect  of  the  provisions  of  the 
acts  of  1868  and  1875^  upon  their  respective 
cases,  and  necessarily  involves  a  construction 
of  those  provisions.  There  being  a  suit  pend- 
ing in  the  Supreme  Court  (Badeau  v.  V.  S.) 
which  presents  the  same   question  precisely 


580 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1440. 


that  arises  in  those  cases,  involving  a  con- 
struction of  the  same  statutory  pro^^sions,  and 
which  will  doubtless  be  determined  during 
the  present  term  of  the  court,  the  Attorney 
General  thinks  it  inadvisable  to  express  any 
opinion  upon  the  two  cases  referred  to,  and 
suggests  that  it  would  be  proper  to  await  the 
decision  of  the  court  in  that  suit,  which  will 
finallv  settle  the  question  arising  in  them. 
(19  Op.  Atty.  Gen.,  202.) 

Captain  Badeau's  name  was  borne  on  the 
retired  list  until  May  7,  1878,  when  he  was 
"dropped  '  in  conformity  with  an  opinion  of  the 
Attorney  General  under  section  1223,  Revised 
Statutes,  to  date  from  May  19, 1869,  date  he  ac- 
cepted office  in  the  diplomatic  ser\-ice.  His 
name  was  restored  to  the  retired  list,  July  3, 
1878,  by  the  Secretary  of  War,  on  the  assnmp- 
tion  that  his  case  was  within  the  first  proviso  to 
section  2,  act  of  March  3, 1875,  relating  to  retired 
officers  then  borne  on  the  list.  The  Second 
Comptroller  thereafter  held  that  Captain 
Badeau's  connection  ^vith  the  Army  entirely 
ceased  May  19,  1869.  From  this  \-iew  the 
Acting  Judge  Advocate  General  of  the  Army 
dissents:  Held,  (1)  That  when  Captain  Badeau 
accepted  the  appointment  and  assumed  the 
duties  of  an  office  in  the  diplomatic  ser^^ce  he 
therebv,  by  force  and  effect  of  section  2  of  the 
act  of  "March  30,  1868,  chapter  38,  ceased  to 
be  an  officer  of  the  Army,  and  his  place  as 
such  became  vacant.  The  fact  that  his  name 
remained  on  the  rolls  has  no  significance;  it  is 
simply  evidence  of  a  mistake  of  law  in  making 
those  rolls.  (2)  That  neither  the  act  of  March 
3,  1875,  nor  the  action  of  the  Secretary  of 
War  above  referred  to  operated  to  reinstate 
him  as  such  an  officer;  the  act  of  1875,  when 
speaking  of  names  on  the  retired  list,  meant 
names  there  legally,  not  by  mistake  either  of 
law  or  fact.  That  act  should  be  construed  to 
have  a  prospective  effect  only.  And  (3) 
That  his  name  is  not  lawfully  borne  on  the 
retired  list  of  the  Army.  (19  Op.  Attv.  Gen., 
610.) 

The  act  of  1868,  section  2  (sees.  1223  and  1440, 
R.  S.),  says  the  acceptance  of  the  diplomatic 
or  consular  office  shall  operate  as  a  resignation 
and  the  military  office  thereby  be  made  vacant. 
Vacant  when?  Manifestly,  immediately  upon 
the  acceptance  of  the  other  office.  By  the 
statutes,  the  holding  of  the  two  places  in  the 
same  person  is  made  inconsistent  and  impos- 
sible. The  election  to  take  one  is  ipso  facto 
the  relinquishment  of  the  other.  It  is  a 
complete  resignation.  The  military  officer 
goes  into  chnl  life;  the  military  office  is  vacant, 
and  may  be  filled  by  another  appointment  at 
once,  it  is  a  statutory  resignation,  yet  it  has 
all  the  essentials  of  an  ordinary  resignation. 
The  officer  by  accepting  the  civil  office  tenders 
his  resignation;  the  President,  by  appointing 
him  to  a  civil  office,  consents  to  and  accepts 
his  resignation  of  the  military  office.  This 
being  so,  the  officer  is  as  completely  out  of  the 
Army  as  if  he  had  resigned  in  the  ordinary 
wav,  been  dismissed  from  the  sersdce,  or  died. 
(19  Op.  Atty.  Gen.,  610.) 

The  act  of  1875  could  not  put  a  man  who  had 
resigned  and  been  six  years  a  civilian  Ijack  into 
the  Army.  It  will  not  do  to  say  that  l)y  con- 
senting to  the  act  of  1875,  the  President  and 


Senate  have  consented  to  the  appointment  of 
Lieutenant  Badeau  as  one  of  a  class.  First,  it 
is  a  non  sequitur,  and  the  President  has  con- 
sented to  a  statute.  Acts  of  Congress  may  and 
often  do  become  operative  as  laws  \vithout  his 
consent  and  over  his  veto.  Again,  the  Presi- 
dent and  Senate  can  not  make  appointments  by 
classes  and  general  legislation.  The  Consti- 
tution contemplates  that  an  appointment  shall 
be  made  upon  the  separate  consideration,  first 
by  the  President  and  afterwards  by  the  Senate, 
of  each  individual  case  by  name  and  upon  its 
own  merits;  and  this  constitutional  require- 
ment is  in  no  way  met  by  a  law  which  would 
induct  men  into  office  by  classes.  To  hold 
otherwise  would  enable  a  two-thirds  majority 
of  each  House  of  Congress,  acting  together,  to 
legislate  any  number  of  men,  by  name  or  by 
a  class,  into  office  without  the  consent  of  the 
President  at  all.  Of  course  such  legislation 
would  be  absolutely  void.  (19  Op.  Atty.  Gen., 
610.) 

If  the  act  of  1875  were  such  as  to  restore  to 
office  in  the  Army  any  officer  who  had  vacated 
such  office,  it  would  be  clearlv  unconstitutional 
and  invalid ;  but  such  is  not  its  necessary  read- 
ing. \Mien  giving  legislation  a  retroacti^'e 
effect,  it  is  invalid,  but  gi\'ing  it  a  prospectiA^e 
effect,  it  is  valid,  all  rules  of  construction 
require  that  it  shall  be  given  a  prospective 
effect  only;  and  such  is  tlie  rule  which  is  and 
should  be  applied  to  the  act  of  1875.  (19  Op. 
Atty.  Gen.,  610.) 

The  question  seems  to  have  been  mooted  for 
many  years,  and  an  attempt  has  been  made  to 
have  it  adjudicated  in  the  courts,  but  no  such 
adjudication  has  been  reached.  In  Badeau  v. 
U.  S.  (130  U.  S.,  439),  the  court  expressly 
declines  to  decide  the  question,  as  not  being 
necessarily  involved  in  the  case,  using  the  fol- 
loAving  language:  "TMiether  by  order  of  the 
Secretary'-  of  War,  July  3,  1878,  the  claimant's 
name  was  properly  restored  to  the  retired  list, 
we  are  not  called  upon  to  determine  in  this  case, 
because  even  were  that  so,  we  do  not  think  that 
his  petition  can  be  sustained. "  The  court  did, 
however,  in  that  case  decide  that  the  act  of 
1868,  now  embodied  in  section  1223  [and  1440] 
applies  to  officers  upon  the  retired  as  well  as 
upon  the  active  list,  saying,  "no  officer, 
whether  on  the  active  or  retired  list,  could 
accept  appointment  in  the  latter"  (diplomatic 
or  consular  service)  "and  remain  an  officer." 
This  is  practically  a  declaration  by  the  highest 
court  in  the  land  that  prior  to  1875  an  officer 
upon  the  retired  list  of  the  Army  who  accepted 
an  appointment  in  the  diplomatic  or  consular 
service  thereby  vacated  his  militaiy  office; 
and,  consistently  with  the  language  of  the  stat- 
ute, it  does  not  appear  how  any  other  position 
is  tenable.     (19  Op.  Attv.  Gen.,  610.) 

The  act  of  March  3,"  1891  (26  Stat.,  872), 
directing  the  accounting  officers  of  the  Treasury 
not  to  suspend  or  withhold  the  pay  of  certain 
retired  officers  therein  described,  whose  names 
were  borne  upon  the  retired  list  prior  to  the 
passage  of  and  retained  thereon  in  obedience 
to  the  act  of  March  3,  1875,  applies  only  to  offi- 
cers of  the  Army  whose  names  were  lawfully  on 
the  retired  list,  and  not  to  those  who  prior  to  the 
passage  of  the  last-mentioned  act  had  severed 
themselves  from  the  Army  by  force  of  section  2, 


681 


Sec.  1441. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


chapter  38.  of  the  act  of  March  30,  18G8,  in  is  of  no  consequence,  inasmuch  as  the  same  was 

accepting  or  holding  a  diplomatic  or  consular  placed  there  illegally,  and  without  warrant  of 

position.     Held,  that  since  May  18,  1869',  Adam  law,  and  that,  therefore,  he  is  entitled  to  none 

Hadeau  has  not  been  an  ollicer  of  the  United  of  the  benefits  claimed  by  him  under  the  act  of 

States  Army,  upon  either  the  active  or  the  re-  March    3,     1891     [noted    above].     (2    Comp. 

tired  list;  that  the  fact  that  his  name  was  car-  Dec,  7.) 
ried  on  the  rolls  as  an  officer  on  the  retired  list 

Sec.  1441.  [Officers  dismissed,  or  resigning  to  escape  dismissal.]  No 
officer  of  tlie  Navy  who  has  been  dismissed  by  the  sentence  of  a  court-martial, 
or  suffered  to  resign  in  order  to  escape  such  dismissal,  shall  ever  again  become 
an  officer  of  the  Navy.— (16  July,  1862,  c.  183,  s.  11,  v.  12,  p.  585.) 


Acceptance  of  resignation  miist  be   communi- 
cated to  officer  before  he  may  c^uit  his  post 
or  proper  duties  without  leave.     (Sec.  1624, 
R.  S.,  art.  10.) 
Midshipmen  dismissed  by  sentence  of  court- 
martial  for  hazing  shall  be  forever  ineligi- 
ble for  reappointment  to  Naval  Academy. 
(Act  June  23,  1874,  18  Stat.,  203.) 
Midshipmen  summarily  expelled  from  Naval 
Academy  for    hazing  shall  not  be  reap- 
pointed to  the  Corps  of  Cadets  or  be  eligible 
for  appointment  as  a  commissioned  officer 
in  the  Army,  Navy,  or  Marine  Corps,  until 
two  years  after  graduation  of  the  class  to 
which  they  belonged.     (Act  Mar.  3,  1903, 
32  Stat.,  li98.) 
Officers  dropped  from  the  rolls  of  the  Navy  or 
Marine  ( 'orps  on  account  of  absence  \vithout 
leave  or  imprisonment  under  sentence  of 
civil  courts,  shall  not  be  eligible  for  reap- 
pointment.  (Act  Apr.  2,  ]918, 40  Stat.,  501; 
see  note  to  sec.  1229,  R.  S.) 
Officers  and  midshipmen  who  shall  have  left, 
the  Navy  under  honorable  conditions  and 
who  shall  have  enrolled  in  the  Naval  Re- 
serve Force,  may  be  appointed  to  the  grade 
and  rank  last  held  by  them  without  exam- 
ination other  than  physical.     (Act  Aug.  29, 
1916,  39  Stat.,  588.) 
Officers,  including  midshipmen,  who  have  left 
the  naval  service  under  honorable  condi- 
tions, and  who  shall  have  enrolled  in  the 
Naval  Reserve  Force,  shall  be  eligible  for 
membership  in  the  Fleet  Naval  Reserve. 
(Act  Aug.  29,  1916,  39  Stat,  589.) 
Reappointment  of  any  commissioned  or  warrant 
officer  who  shall  have  been  honorably  dis- 
charged from  the  service,  was  authorized 
by  act  of   February  16,  1914,  section  21 
(38  Stat.,  290.) 
See  section  1624,  Revised  Statutes,  article  37, 
and  act  of  June  22,  1874,  section  2  (18  Stat., 
192),  as  to  officers  dismissed  and  afterwards 
demanding  trial  by  court-martial. 
The  spirit  of  the  laws  is  against  the  re- 
appointment of  any  person  who  has  been  dis- 
missed from  the  Navy,  as  will  be  seen  from  sec- 
tion   1441,    Re\dsed   Statutes.     (File  5252-43, 
Oct.  5,  1911.) 

Midshipmen  dismissed  from  the  Navy. — 
There  is  no  provision  of  law  expressly  proliibit- 
ing  the  reappointment  of  a  midsliipman  who 
has  been  dismissed  from  the  Navy,  except  in 
the  single  case  of  hazing.  However,  where  a 
midshipman  was  dismissed  for  "intoxication 
and  inaptitude,"  and  thereafter  nominated  for 
appointment  to  the  Naval  Academy,  held,  that 


if  the  candidate's  moral  qualifications  are  not 
satisfactory  and  such  as  are  required  for  the 
admission  of  candidates  generally,  he  may  be 
legally  rejected;  and  whether  or  not  he  is  so 
qualified  is  a  cjuestion  of  fact.  (File  5252-43, 
Oct.  5,  1911.) 

Effect  of  pardoning. — "Whether  an  officer 
dismissed  by  sentence  of  a  court-martial  who  has 
been  pardoned  by  the  President,  may  again 
become  an  officer  of  the  Navy,  notwithstanding 
this  proxdsion  is  a  question  not  without  diffi- 
culty. It  is  not  the  point  specifically  referred 
to  in  Mr.  Myer's  letter,  and,  therefore,  I  refrain 
from  discussing  it.  But  I  do  not  hesitate  to  say 
that  I  think  it  can  be  shown  that  Congress  did 
not  intend  by  tliis  clause  to  preclude  the  Presi- 
dent from  reappointing  officers  of  the  Navy  dis- 
missed by  sentence  of  a  court-martial  to  whom 
he  has  extended  a  pardon."  (11  Op.  Atty.  Gen., 
19,  23.  Compare,  cases  noted  under  Constitu- 
tion, Art.  II,  sec.  2,  clause  1,  under  "  III.  Power 
to  Pardon  Offenses  against  United  States" ;  and 
see  Laws  v.  U.  S.,  27  Ct.  Cls.,  69.) 

If  Congress  thinks  proper  to  accept  the  fact  of 
dismissal  ox  enforced  resignation  of  a  naval  officer 
as  evidence  of  unfitness,  or  lack  of  qualification, 
it  may  do  so  without  having  its  action  in  that 
regard  overridden  by  the  pardoning  power  of 
the  President.  An  unconditional  pardon  abates 
whatever  punishment  flows  from  the  commis- 
sion of  the  pardoned  offense,  but  can  not  eradi- 
cate the  factum  which  is  made  a  criterion  of 
fitness.  The  whole  context  of  the  original  act 
from  which  section  1441  is  taken  discloses  its 
nonpenal  character.  Accordingly, /i^-Zc?,  "that 
section  1441  of  the  Revised  Statutes  is  properly 
to  be  regarded  as  a  rule  relating  to  qualification 
for  office  in  the  Navy,  that  it  does  not  impose  a 
penalty  as  such  on  individual  offenders,  and 
that  the  incidental  disaljilities  which  they  may 
suffer  by  reasim  of  the  statute  are  not  removed 
by  a  pardon."  Further,  held,  that  the  acts  of 
February  16,  1914,  and  August  29,  1916  [above 
cited]  do  not  show  any  purpose  on  the  part  of 
Congress  to  change  the  requirement  of  sectinn 
1441;  on  the  contrary,  they  confirm  it,  since 
each  of  these  later  acts  bv  its  terms  applies  only 
to  officers  who  have  been  honorably  discharged 
from  the  service, ' '  or  who  have  ' '  left  that  service 
under  honorable  conditions;"  and  that  an  officer 
who  has  been  dismissed  from  the  Na^y  by  sen- 
tence of  court  martial  and  subsequently  par- 
doned is  not  eligible  for  reappointment  to  the 
Navy  or  to  membership  in  the  Fleet  Naval  Re- 
serve. (31  Op.  Atty.  Gen.,  225,  citing  Op. 
J.  A.  G.,  Navv,  Nov.  21,  1917,  file  26282-326, 
Carlesi  v.  N.  Y.,  233  U.  S.,  51,  etc.^ 


582 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1442. 


Resignation  under  charges. — An  Army 
officer  having  been  charged  with  drunkenness, 
submitted  an  undated  resignation  to  his  com- 
manding officer  to  be  held  and  not  forwarded  to 
the  War  Department  if  he  should  entirely  ab- 
stain from  the  use  of  intoxicants,  but  to  be  for- 
warded to  the  department  if  he  should  become 


intoxicated  again. 


On  again  becoming  intoxi- 


cated his  commanding  officer  dated  and  for- 
warded the  resignation,  which  are  duly  accepted 
by  the  President  and  the  officer  notified.  Held, 
that  the  office  became  vacant  upon  the  officer's 
receipt  of  such  notification,  and  that  the  sub- 
sequent action  of  the  President  in  revoking  his 
acceptance  did  not  restore  the  officer  to  the 
service.     (Mimmack  v.  U.  S.,  97  U.  S.,  426.) 

Sec.  1442.  [Furlough  of  Officers.]  The  Secretary  of  the  Navy  shall  have 
authority  to  place  on  furlough  any  officer  on  the  active  list  of  the  Navy. — 
(3  Mar.,  1835,  c.  27,  s.  1,  v.  4,  pp.  756,  757.  3  Mar.,  1845,  c.  77,  s.  6,  v.  5,  p. 
794.  28  Feb.,  1855,  c.  127,  s.  3,  v.  10,  p.  617.  1  June,  1860,  c.  67,  s.  4,  v.  12, 
p.  27.) 


Furlough  of  civil  employees,  see  note  to  sec- 
tion 416,  Revised  Statutes,  under  "Suspen- 
sion of  employees. ' ' 
Furlough  without  pay  of  enlisted  men,  subject 
to  recall  in  time  of  war  or  national  emer- 
gency.   (Act  Aug.  29,  1916,  39  Stat.,  580.) 
No  pay  to  be  allowed  officers  or  enlisted  men, 
Navy  or  Marine  Corps,  absent  from  duty  on 
account  of  iniury,  sickness  or  disease  result- 
ing from  their  own  misconduct.     (Act  Aug. 
29,  1916,  39  Stat.,  580,  as  amended  by  act 
July  1,  1918,  40  Stat.,  717.) 
Pay  of  officers  on  furlough,  see   section  1557, 

Revised  Statutes. 
Retirement  of  officers  on  furlough  pay,    see 
sections    1454,    1593,    and    1594,    Revised 
Statutes. 
Secretary  of  the  Na\'y  may  assign  officers  to 
duty  on  ocean  mail  vessels  with  furlough 
pay,  see  act  of  March  3,  1891,  section  7  (26 
Stat.,  832). 
Section  1442  not  repealed. — Section  1442, 
Revised  Statutes,  gives  the  right  to  furlough 
an  officer  of  the  Navy,  and  section  1557  fixes  the 
proportion  of  the  pay  that  he  shall  have  while 
on  furlough.     These  sections  have  not  been 
repealed.    (15  Comp.  Dec,  73.) 

Status  of  officers  on  furlough. — ""UTien 
officers  are  furloughed  by  the  Department  in 
the  administration  of  its  general  power,  they 
may  be  restored  by  the  same  power.  Their 
places  have  not  been,  and  can  not  be.  occupied 
by  others.  With  them,  to  be  furloughed  or  not 
to  be,  is  only  a  question  of  duty  and  of  pay. 
not  of  rank  or  place  on  the  roll  of  the  Nav5\  " 
(8  Op.  Attv.  Gen.,  223,  236.) 

Under  the  act  of  March  2,  1895  (28  Stat., 
910),  authorizing  the  President  to  place  ''on 
waiting  orders  out  of  the  line  of  promotion, 
with  one-half  active-duty  pay,"  officers  of  the 
Revenue-Cutter  Service  [now  Coast  Guard] 
who  are  permanently  incapacitated,  and  to 
fill  the  resulting  vacancies  by  promotion  in 
the  order  of  seniority,  held,  that  an  officer 
placed  on  "permanent  waiting  orders"  is 
withdrawn  from  the  line  of  promotion  but  may 
be  restored  to  the  service  in  his  former  rank 
when  his  disabilitv  ceases,  without  congres- 
sional action.    (21  Op.  Atty.  Gen.,  286.) 

Officer  can  not  be  furloughed  without 
statutory  authority. — The  pay  of  commis- 
sioned officers  of  the  Revenue-Cutter  Service 
[now  Coast  Guard],  having  been  assimilated  by 
law  to  that  of  the  Army,  and  there  being  no 
power  in  the  Secretaiy  of  War,  ])y  order,  to 


reduce  the  pay  of  commissioned  officers  of  the 
Army,  held,  that  the  order  of  the  Secretary  of 
the  Treasury  placing  a  commissioned  officer  of 
the  Revenue-Cutter  Service  on  leave  of  absence 
with  half  pay,  as  a  punishment  for  an  offense, 
was  not  authorized  by  law;  and,  accordingly, 
that  the  portion  of  the  order  directing  the 
reduction  of  his  pay  to  half  pay,  was  inoperative. 
"Neither  the  Secretary  of  War  nor  any  officer 
of  the  Government  can  force  a  leave  of  absence 
upon  an  officer  or  soldier  *  *  *.  A  leave  of 
absence  is  a  favor  extended."  (Citing  Hunt 
v.  U.  S.,  38  Ct.  Cls.,  709,  710.)  Compulsory 
absence  by  the  order  of  a  superior  officer, 
which  is  not  for  the  convenience  or  in  the 
interest  of  the  offi'cr  who  is  relieved  from  duty, 
and  where  there  is  no  legal  authority  to  direct 
such  compulsory  aljsence,  is  not  leave  of 
absence  within  the  meaning  of  section  1265, 
Revised  Statutes,  fixing  the  pay  of  Army 
officers  while  alisent.  The  power  to  dismiss 
officers  of  the  Revenue-Cutter  Service  is  not 
in  the  Secretary  of  the  Treasury.  Neither  can 
he  place  them  on  leave  of  absence  on  half  pay. 
They  are  entitled  to  their  entire  salaries  be- 
cause of  the  commission  they  hold,  except  in 
cases  wherein  the  law,  or  regulations  having 
the  force  of  law,  makes  other  provision.  (11 
Comp.  Dec,  570.) 

Difference  between  "firrlough"  and  "re- 
tirement."— Officers  on  furlough  without  be- 
ing retired  are  not  included  in  the  expression ' '  re- 
tired naval  officers. "     (12  Op.  Atty.  Gen. ,  222.) 

Secretary  may  furlough,  officer  convicted 
by  court-martial. — Where  a  medical  officer  is 
found  guilty  of  vulgar  and  indecent  acts  and 
associations  such  as  unfit  him  to  treat  persons 
in  the  Na\y  and  memliers  of  their  families, 
should  the  court  not  sentence  him  to  dismissal 
the  Navy  Department  feels  it  would  have  no 
alternative  but  to  place  him  on  furlough  as 
authorized  by  section  1442,  Revised  Statutes, 
although  this  would  mean  that,  in  accordance 
with  section  1557,  Revised  Statutes,  he  must 
receive  half  pay,  thus  imposing  expenditures 
ui>on  the  Government  from  its  appropriations 
for  the  naval  service  without  receiving  any 
return  therefor.  (File  26251-11181,  Dec.  17, 
1915;  G.  C.  M.  Rec.  No.  31436;  CM.  O.  49-1915, 
p.  27.) 

Suspension  from  duty  by  court-martial 
sentence. — As  extended  periods  of  severance 
from  active  duty  are  calculated  to  impair  the 
efficiencv  of  an  officer,  and  are  detrimental  to 
the  interests  of  the  naval  service,  that  part  of  a 


583 


Sec.  1442. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


court-martial  sentence  of  an  officer  which  in- 
volved suspension  from  duty  on  leave  pay  was 
remitted.  A  sentence  consisting  of  "three 
months'  leave  of  absence"  with  the  full  pay 
correspondinfj:  to  that  status,  is  not  favorably 
regarded,  particularly  as  such  action  would 
necessitate  the  detail  of  another  officer  to  per- 
form the  duty  of  the  one  luider  sentence,  wliile 
the  latter  remained  idle.  The  granting  of  such 
leave  is  a  priAdlege  which  would  not,  except 
under  extraordinary  circumstances,  be  accorded 
by  the  Navy  Department  to  any  officer  during  a 
tour  of  sea  service.    As  to  suspension  from  duty 


with  reduction  in  pay,  this  has  also  been  held 
an  imd'3sirable  form  of  punishment  prejudicial 
to  the  l)est  interests  of  the  service  and  contrary 
to  the  policy  of  the  Navy  Department;  the 
officer  is  probably  left  without  employment  and 
the  Government  loses  his  8er\-ices.  A  sentence 
"to  be  suspended  from  rank  and  duty  *  *  * 
to  receive  during  said  period  one-half  of  shore 
pay,"  is  inappropriate,  since  it  relegates  to 
idleness  for  two  years  an  officer  whose  services 
are  needed,  and  throws  his  work  on  others. 
(Naval  Dig.,  1916,  p.  623.) 


584 


CHAPTER  THREE. 


RETIRED  OFFICERS  OF  THE  NAVY. 


See. 

1443.  Retirement  after  40  years'  service. 

1444.  Retirement  after  62  years  of  age,  or  45 

years'  service. 

1445.  Officers  of  certain  ranks  to  be  retired  only 

for  disability. 

1446.  Officers  who   have   received   a  vote   of 

thanks;  retirement  after  55  years'  serv- 
ice. 

1447.  Retirement  of  officers  not  recommended 

for  promotion. 

1448.  Retiring  board. 

1449.  Powers  and  duties  of  retiring  board. 

1450.  Oath  of  members,  retiring  board. 

1451.  Findings  of  retiring  board,  cause  of  in- 

capacity. 

1452.  Record  of  proceedings;  revision  by  Pres- 

ident. 

1453.  Disaljility   due   to  an   incident    of   the 

service. 

1454.  Officers  wholly  retired,  or  retired  on  fur- 

lough pay. 


Sec. 

1455.  Officers  not  to  be  retired  without  a  hear- 

ing. 

1456.  Officers  not  to  be  retired  for  misconduct. 

1457.  Grade  and  status  of  retired  officers. 

1458.  Vacancies  filled  by  promotion  according 

to  seniority. 

1459.  Retii-ed    officers   withdrawn   from    com- 

mand, and  from  line  of  promotion. 

1460.  Promotions  to  rear  admiral  on  the  retired 

list. 

1461.  Promotion  of  retired  officers  with  running 

mates  on  active  list. 

1462.  Active  duty  for  retired  officers. 

1463 .  Assignment  of  retired  officers  to  command 

in  time  of  war. 

1464.  Commanding  officers  of  squadrons  to  have 

rank  of  "flag  officer." 

1465.  Restoration  of  retired  officers  to  active 

list. 


Sec.  1443.  [Retirement  after  forty  years'  service.]  When  any  officer  of  the 
Navy  has  been  forty  years  in  the  service  of  the  United  States  he  may  be  retired 
from  active  service  by  the  President  upon  his  own  appHcation. — (3  Aug.,  1861, 
c.  42,  s.  21,  V.  12,  p.  290.) 


Amendment  to  this  section  was  made  by  act 
of  May  13,  1908  (35  Stat.,  128),  authorizing 
retirement  after  30  years'  service  upon  ap- 
plication of  officers.  See  also  section  1445, 
below. 

Acting  assistant  surgeons  not  entitled  to  retire- 
ment.    (See  note  to  sec.  1411,  R.  S.) 

Captains,  commanders,  and  lieutenant  com- 
manders who  become  ineligible  for  pro- 
motion on  account  of  age  shall  be  retired 
at  rate  of  pay  graded  according  to  length 
of  service.  (Act  Aug.  29, 1916,  39  Stat.,  579.) 

Dental  Corps  officers  who  were  over  40  years  of 
age  on  original  app^ointment  shall  not  be  eli- 
gible for  retirement  before  reaching  the 
age  of  70  years,  except  for  physical  dis- 
ability incurred  in  line  of  duty.  (Act 
Aug.  29,  1916,  39  Stat.,  574,  as  amended 
by  act  July  1,  1918,  40  Stat.,  709.) 

Dental  surgeon  at  the  Naval  Academy  not  to  be 
retired  before  reaching  age  of  70  years,  ex- 
cept for  phvsical  disability  incurred  in  line 
of  duty.  (Act  Mar.  4,  1913,  37  Stat.,  891, 
as  amended  by  act  July  1,  1918,  40  Stat., 
709. 

Enlisted  men,  retirement  of.  (See  acts  Mar.  3, 
1899,  sec.  17,  30  Stat.,  1008;  June  22,  1906, 
34  Stat.,  451;  Mar.  2,  1907,  34  Stat..  1217; 


Mar.  3,  1915,38  Stat.,  941;  Aug.  29,  1916, 
39  Stat.,  591.) 

Machinists  to  be  retired  under  the  provisions 
of  existing  law  for  warrant  officers.  (Act 
Mar.  3,  1899,  sec.  15,  30  Stat.,  1008.) 

Marine  officers,  retirement  of.  (See  sec.  1622, 
R.  S.) 

Mates,  retirement  of.  (See  note  to  sec.  1408, 
R.  S.) 

Midshipmen,  retirement  of.  (See  note  to  sec. 
1445,  R.  S.) 

Naval  Reserve  Force  members  shall  not  be 
eligible  for  re:irement  other  thau  for  physi- 
cal disability  incurred  in  line  of  duty. 
(Act  July  1,  1918,  40  Stat.,  710).  Trans- 
ferred members  of  the  Fleet  Naval  Reserve 
shall  be  eligible  for  retirement  after  30 
years'  service  (Act  Aug.  29, 1916,  39  Stat., 
591);  service  in  the  Navy,  Marine  Corps, 
National  Naval  Volunteers  and  Naval  Mi- 
litia, shall  be  counted  as  continuous  service 
in  the  Naval  Reserve  Force  for  the  purpose 
of  retirement  (act  July  1,  1918,  40  Stat., 
710).  Officers  of  the  Naval  Reserve  Force 
physically  disabled  in  line  of  duty  shall 
be  eligible  for  retirement  under  same 
conditions  as  officers  of  the  Regular  Navy. 
(Act  June  4,  1920,  sec.  2,  41  Stat.,  834.) 


585 


Sec.  1443. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Pay  clerks  and  acting  pay  clerks  shall  have  the 
same  pay,  allowances,  and  other  benefits 
as  now  or  hereafter  allowed  other  warrant 
oflieers  and  act  ins;  warrant  oflicers.  (Act 
Mar.  3,  1915,  88  tStat.,  942,  943.) 
Pay  of  oflicers  retired  after  40  vears'  service. 

'  (See  sec.  1588,  R.  S.) 
Rank  of  oflicers  on  retirement.     (See  note  to 

sec.  1457,  R.  S.) 
Retiring  board  not  necessary  for  retirements 
on  account  of  length  of  service.     (See  sec. 
1455,  R.  S.) 
Service  as  officers  or  enlisted  men  in  the  Regular 
or  Volunteer  Army  or  Navy,  or  both,  shall 
be  credited  to  all  oflicers  of  the  Navy  for  all 
purposes,  the  same  as  if  all  said  service  had 
been  continuous  in  the  Regular  Navy.    (Act 
Mar.  3,  1883,  22  Stat.,  473.) 
SerAdce  as  officers  in  different  corps  of  the  Navy 
or  in  the  Marine  Corps  shall  be  credited 
to  all  officers  for  all  purposes.     (Act  June 
10,  1896,  29  Stat.,  361.) 
Service  as  a  midshipman  at  the  Naval  Academy 
or  as  a  cadet  at  the  Military  Academy  shall 
not  be  counted  in  computing  for  any  p\ir- 
pose  the  length  of  service  of  any  officer  in 
the  Navy  or  Marine  Corps  hereafter  ap- 
pointed to  either  of  said  academies.     (Act 
Mar.  4,  1913,  37  Stat.,  891.) 
Sea  service  to  be  credited  to  volunteer  officers 
transferred  to  the  Regular  Navy  in  the  same 
manner  as  if  they  had  been  in  the  Regular 
Navy    during    such    serAdce.     (Sec.  1412, 
R.  S.) 
Service  previously  rendered  by  appointees  as 
chief  pay  clerks,  pay  clerks,  or  acting  pay 
clerks,  together  with  their  possible  future 
service  prior  to  attaining  age  of  62,  must 
amount  to  at  least  30  years.     (Act  Mar.  3, 
1915,  38  Stat.,  942,943.) 
Temporary  officers  appointed  for  war  with  Ger- 
many not  entitled  to  retirement  except  for 
physical  disability  incurred  in  line  of  duty. 
(Act  May  22,  1917,  sec.  9,  40  Stat.,  86;  act 
June  4,  1920,  sec.  2,  41  Stat.,  834.) 
Warrant  officers,  retirement  of.     (Sc^e  Brown  v. 
U.  S.,  113  U.  S.,  571,  noted  under  sec.  1448, 
R.  S.;  and  see  note  to  sec.  1405,  R.  S.) 
"The  Secretary  of  the  Navy  represents 
the  President,  and  exercises  his  power  on 
the  subjects  confided  to  his  department."     (U. 
^.  V.  Jones,  18  How.  92;  see  further,  note  to  sec. 
417,  R.  S.) 

The  retirement  of  officers  of  the  Navy,  wheth- 
er oc  urring  under  section  1443  or  according  to 
the  terms  of  the  appropriation  act  of  June  29, 
1906  (34  Stat.,  554),  is  made  oiilj^  by  the  Presi- 
dent, not  by  the  Secretary  of  the  Navy.  From 
both  se'don  1443  and  the  act  of  P06,  it  appears 
that,  with  the  determination  of  tlio  question  of 
retirement,  tlie  Secretary  of  the  Navy  has 
nothing  directly  to  do;  it  is  for  the  President. 
Where,  therefore,  an  officer  of  the  Navy  was 
retired,  pursuant  to  the  express  direction  and 
approval  of  the  President,  as  a  captain  of  the 
Navy,  and  at  no  time  since  such  retirement  has 
the  President  conferred  a  higher  rank  upon 
him,  the  Secretary  of  the  Navy  has  neither 
duty,  authority,  or  power  to  place  the  name  of 
such  officer  upon  the  retired  list  with  the  rank 
of  rear-admiral.  (Moser  v.  Meyer,  38  App. 
D.  C,  13.) 


President  has  discretion  to  deny  appli- 
cation for  retirement. — The  act  of  May  13, 
1908  [noted  above  as  an  amendment  to  this  sec- 
tion], does  not  declare  that  the  officer  may  vol- 
untarily retire  after  30  years'  service.  Such  an 
idea  is  in  fact  negatived  by  placing  his  retire- 
ment entirely  within  the  discretion  of  the 
President.  The  ofiicer  is  vested  with  the  right 
to  make  application  for  retirement,  but  there 
his  right  ends  and  the  discretion  of  the  Pres- 
ident begins.     (28  Op.  Atty.  Gen.,  417.) 

When  retirement  becomes  legally  ef- 
fective.— See  note  to  section  1457,  Revised 
Statutes,  tinder  "When  retirement  or  advance- 
ment on  retired  list  takes  effect."  See  also 
notes  to  sections  1444  and  1458,  Revised  Stat- 
utes. 

Civilian  employees  not  entitled  to 
benefits  of  Navy  retirement  laws. — A  clerk 
appointed  for  duty  in  a  navy  pay  office  is  not 
an  officer  of  tlie  Navy  entitled  to  retirement  for 
age  or  length  of  service;  he  was  no  more  an 
officer  of  the  Navy  than  any  one  of  the  many 
employees  of  the  Navy  Department  at  Wash- 
ington. (Foreman  v.  Meyer,  227  U.  S.,  452; 
38  App.  D.  C,  472.) 

The  Navy  Department  can  not  coimtenance 
any  proposed  legislation  seeking  to  engraft  on 
the  military  retired  list  of  the  Navy  the  cost  of 
a  civil  retired  list  made  up  in  whole  or  in  part 
of  the  great  number  of  civil  service  employees 
of  this  department.  (File  26255-295:12,  Oct. 
27,  1914.)_ 

The  privileges  of  retirement  under  the  laws 
relating  to  the  Army  are  confined  to  officers  of 
the  Army,  and  an  applicant  for  retirement 
must  bring  himself  within  that  class  before  he 
can  claim  the  advantage  of  those  privileges. 
(29  Op.  Atty.  Gen.,  249.) 

The  test  to  distinguish  between  a  civil  officer 
whose  duties  lie  in  the  War  Department,  and 
an  officer  of  the  Army,  is  that  laid  down  in  16 
Op.  Atty.  Gen.,  13  (and  see  U.  S.  v.  Tyler,  105 
U.  S.,  244,  245),  viz,  that  officers  of  the  Army 
are  those  officers  who  are  a  part  of  ' '  the  militarj^ 
establishment,"  created  by  general  acts  of 
Congress  organizing  the  "Armj^  of  the  United 
States,"  and  defining  what  it  shall  "consist 
of,"  and  as  such  are  subject  to  the  rules  and 
Articles  of  War.  These  acts,  in  so  far  as  officers 
are  concerned,  provide  for  a  graded,  formal  or- 
ganization, the  persons  in  which  have  rank,  are 
in  line  of  promotion  to  a  higher  rank,  wear  uni- 
forms as  the  badge  of  that  rank,  are  subject  to 
military  discipline  and  to  orders  issued  to  en- 
force that  discipline,  and  have  acquired,  to 
speak  generally,  the  status  of  soldiers  in  addi- 
tion to  their  status  as  citizens  or  their  status  of 
officers  of  the  United  States.  (29  Op.  Atty. 
Gen.,  249.) 

In  view  of  the  ]7rohibition  in  the  act  of  Feb- 
ruary 24,  1899  (30  Stat.,  846,  890),  that  "the 
establi-shment  of  a  civil  pension  roll,  or  an  hon- 
orable servdce  roll,  or  the  exemption  of  any  of 
the  officers,  clerks,  and  persons  in  the  public 
service  from  the  existing  laws  respecting  em- 
ployment in  such  service  is  hereby  prohibited," 
care  should  be  taken  not  to. extend  the  Army 
retirement  acts  so  as  in  effect  to  create  not  only 
a  "civil  pension  roll,"  but  a  limited  and  special 
one.     (29  Op.  Atty.  Gen.,  249.) 


586 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1443. 


An  expert  accountant  in  the  inspector  gen- 
eral's department  of  the  Army  is  not  entitled 
to  be  placed  on  the  retired  list  of  the  Army  on 
the  ground  that  he  has  reached  the  age  of  64 
years.  Although  an  officer  of  the  United 
States,  it  does  not  follow  that  he  is  also  an  officer 
"of  the  Army."  It  is  clear  that  an  officer  of 
the  United  States  may  have  functions  and 
duties  relatmg  solely  to  the  Army  and  may  be 
paid  entirely  from  appropriations  for  the  Army, 
and  yet  not  be  "of  the  Army."  (29  Op.  Atty. 
Gen.,  249,  citing  Brown's  Case,  32  Ct.  Cls.  379, 
386,  387,  388;  Huse'sCase,  43  Ct.  Cls.,  24;  U.  S. 
r.  Burns,  12  Wall.,  252;  U.  S.r.  La  Tourrette, 
151  U.  S.,  572,  576;  27  Op.  Atty.  Gen.,  468,  471, 
472,  475.) 

The  appropriation  acts  for  the  Army  provide 
specifically  "for  pay  of  the  officers  in  the  in- 
spector general's  department,"  while  the  pro- 
vision for  the  expert  accomitant  is  always  under 
the  heading,  "Miscellaneous."  He  has  no 
"actual  rank,"  within  section  1254,  Revised 
Statutes;  he  has  no  "command,"  and  is  not  in 
"the  line  of  promotion,"  within  section  1255; 
he  has  no  "uniform  of  the  rank;"  he  has  never 
been  "borne  on  the  Army  Register,"  and  is 
not,  in  the  time  of  peace  and  never  has  been, 
"subject  to  the  rules  and  Articles  of  War,"  nor 
to  "trial  by  general  court-martial,"  within 
section  1256.  There  is  no  way  of  fixing  his  pay 
on  retirement,  as  he  has  no  "rank,"  to  be  used 
as  a  basis  of  computation  within  section  1274; 
finally,  he  has  never  been  treated  by  the  War 
Department  in  orders  or  regulations  or  in  any 
other  way  as  an  officer  "of  the  Army."  As 
said  in  Brown's  Case  (32  Ct.  Cls.,  379),  "the 
status  of  such  an  officer,  the  department  or  place 
to  wliich  he  properly  belongs,  is  something 
which  can  be  much  better  determined  by  the 
legislative  and  executive  branches  of  the  Gov- 
ernment, than  by  the  judicial."  (29  Op  Atty. 
Gen.,  249.) 

Persons  held,  to  be  oflB^cers  within  mean- 
ing- of  Navy  retirement  laws. — Paymasters' 
clerks  are  "officers  of  the  Navy,"  within  the 
meaning  of  the  act  of  May  13,  1908  (35  Stat., 
128),  which  provides  for  the  retirement  of  offi- 
cers of  the  Navy  who  have  been  in  the  service 
30  years.  (27  Op.  Atty.  Gen.,  157,  Jan.  22 
1909;  compare  Ashton  v.  U.  S.,  51  Ct.  Cls., 
65,  overruling  Katzer  v.  U.  S.,  49  Ct.  Cls.,  294.) 

A  paymaster's  clerk  in  the  NaA^,  who  at  the 
the  time  of  retirement  was  serving  under  an 
appointment  issued  to  him  since  the  adoption 
of  paragraph  1751,  Navy  Regulations,  1900, 
requiring  the  appointment  of  paymasters' 
clerks  to  be  made  by  the  Secretary'  of  the  Navy, 
is  an  "ofiicer  of  the  Navy,"  for  the  purjwse  of 
retirement  within  the  meaning  of  the  act  of 
May  13,  1908.     (15  Comp.  Dec,  628.) 

Paymasters'  clerks  in  the  Army  are  officers 
in  the  regular  ser^ice  within  the  meaning  of  the 
acts  of  Congress  respecting  retirement  for 
length  of  ser\ice  and  physical  inc-apacity.  (27 
Op.  Atty.  Gen.,  493;  see  also  9  Comp.  Dec, 
90.) 

The  opinion  holding  that  Army  paymasters' 
clerks  were  entitled  to  retirement  (27  Op. 
Atty.  Gen.,  493),  went  upon  the  assumption 
that  a  paymaster's  clerk  has  a  status  in  the 
Army  in  all  essential  respects  similar  to  the 
status  of  a  paymaster's  clerk  of  the  Navy,  and 


as  the  latter  officer  had  been  considered  by  the 
courts  and  by  the  Navy  Department  to  be  an 
officer  of  the  Navy  and  subject  to  the  rules  and 
regulations  of  the  Navy,  it  was  assumed  that 
the  same  conditions  prevailed  as  to  the  analo- 
gous office  of  paymaster's  clerk  in  the  Army. 
Whether  that  assumption  was  correct  or  not  is 
immaterial  in  view  of  the  subsequent  action 
of  Congress  in  specifically  authorizing  the  re- 
tirement of  such  clerks.  But  it  will  be  noticed 
that  such  authorization  was  upon  the  express 
condition  that  "Army  paymasters'  clerks  shall 
be  subject  to  the  rules  and  Articles  of  War" 
(36  Stat.,  1044).     (29  Op.  Atty.  Gen.,  253.) 

As  to  retirement  of  pay  clerks  in  the  Navv, 
see  act  of  March  3,  1915  (38  Stat.,  942,)  noted 
above;  and  see  note  to  section  1386,  Revised 
Statutes. 

Civil  engineers  are  officers  in  the  Navy,  and 
may  be  retired  under  this  section,  which  applies 
to  staff  officers  as  well  as  to  the  line.  (17  Op. 
Atty.  Gen.,  126.) 

As  to  retirement  of  warrant  officers,  mates, 
etc.,  see  references  given  above  under  this 
section. 

Status  of  oflicer  iUegaUy  retired. — Where 
the  Secretary  of  the  Navy  by  order  retired  or 
attempted  to  retire  an  officer  of  the  Navy  who 
had  not  had  40  years'  service,  and  no  appoint- 
ment had  been  made  to  the  place  vacated,  the 
officer  must  be  regarded  as  still  on  the  active 
list  of  the  Navy.  (21  Op.  Atty.  Gen.,  103;  see 
also  17  Op.  Atty.  Gen.,  21;  compare  26  Op. 
Atty.  Gen.,  615,  27  Op.  Atty.  Gen.,  66.) 


WHAT    TIME    COUNTS    AS 
NAVY. 


SEHVICE        IN    THE 


Commences  upon  date  of  actual  entry 
into  service  of  United  States. — Every 
department  of  the  Government  which  has  had 
occasion  to  construe  the  word  "service"  in 
connection  -with  our  military  system,  has,  by 
long-continued  and  uniform  dec^isions  and 
practice  held  that,  in  case  of  volunteer  officers 
commissioned  by  the  governors  of  States,  their 
entry  into  the  military  service  of  the  United 
States  dates  from  their  muster  in  and  not  from 
date  of  their  enrollment;  and  in  case  of  volun- 
teer officers  appointed  by  the  President,  by 
and  with  the  advice  and  consent  of  the  Senate, 
their  service  dates  from  the  acceptance  of 
their  commissions  and  oath  of  office.  There 
are  substantial  reasons  for  this  construction  of 
the  word  "service."  Accordingly,  held,  that 
the  prior  service  of  an  officer  of  the  Army  which 
is  entitled  to  be  counted  in  determining  his 
relative  rank  with  other  officers  does  not  include 
any  period  prior  to  his  actual  entry  into  the 
Army,  notwithstanding  that  Congress  author- 
ized payment  of  compensation  from  an  earlier 
date.  (23  Op.  Atty.  Gen.,  406,  modifying  23 
Op.  Atty.  Gen.,  232.)  _ 

A  warrant  as  midshipman  was  Issued  to  an 
officer  December  11,  1812;  he  did  not  report  for 
duty,  receive  orders,  nor  become  entitled  to 
pay  as  a  midshipman  until  July  1, 1816.  Hfld, 
that  his  period  of  service  for  retirement  shoidd 
be  computed  from  the  latter  date.  If  the  ques- 
tion were  new,  it  would  be  open  to  serious  doubt, 
but  having  been  decided,  and  that  decision 
tacitly  assented  to  bv  Congress,  it  should  stand. 
(13  Op.  Atty.  Gen., '33.) 


54641°— 22- 


-38 


587 


Sec.  1443. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Where  an  officer  upon  oripnal  appointment 
to  the  Army  was  commissioned  July  27,  1866, 
to  rank  from  May  11,  1866,  and  accepted  said 
commission  and  entered  upon  duty  September 
15,  1866,  held,  that  the  peiiod  elapsing  from 
the  date  ho  took  rank  as  stated  in  said  comrnis- 
eion  to  the  date  that  he  accepted  same  and  en- 
tered upon  duty,  was  constructive  and  not 
actual  ser\-ice,  and  can  not  be  counted  in  fixing 
his  relative  rank  with  other  officers  in  cases 
where  the  statute  requires  that  prior  actual  serv- 
ice shall  be  counted.  (17  Op.  Attv.  Gen., 
52.) 

Ser\-ice  commences  for  purposes  of  longevity 
pay  from  the  day  the  officer's  commission  was 
signed  by  the  President,  and  not  from  an  an- 
tecedent date  mentioned  in  the  body  of  the 
commission.     (Young  v.  U.  S.,  19  Ct.  Cls.,  145.) 

The  three  years'  ser\-ice  necessary  for  promo- 
tion of  ensigns  to  lieutenants  (junior  grade) 
under  section  7  of  the  Navy  personnel  act  of 
March  3,  1899  (30  Stat.,  1005),  should  be  com- 
puted from  the  date  of  their  rank  as  ensigns, 
this  being  in  accordance  with  the  existing  con- 
struction of  the  law  by  the  accounting  officers 
and  the  Navy  Department.  (22  Comp.  Dec, 
625,  citing  22  Comp.  Dec,  565,  566;  18  Comp. 
Dec,  466;- 17  Comp.  Dec,  605.) 

Service  commences  for  purposes  of  longevity 
pay  from  date  of  accepting  the  office  and  not 
from  date  of  taking  oath  of  office  where  latter 
is  subsequent  to  acceptance.  Yl2  Comp.  Dec, 
245.) 

Where  an  officer's  commission  is  antedated 
on  original  appointment  for  purposes  of  rank, 
his  length  of  service  for  purposes  of  promotion 
may  be  computed  from  the  date  so  stated  in 
his  commission.  (Toulon  v.  U.  S.,  52  Ct. 
Cls.,  333;  see  also  22  Comp.  Dec,  623;  17  Comp. 
Dec,  605;  22  Comp.  Dec,  565,  566;  24  Comp. 
Dec,  177;  18  Op.  Atty.  Gen.,  393,  394.) 

The  service  of  volunteer  officers  does  not 
commence  until  they  are  mustered  into  the 
United  States,  notwithstanding  that  by  statute 
they  are  allowed  pay  trom  date  of  enrollment. 
(7  Comp.  Dec,  617.) 

Period  from  date  of  dismissal  to  reap- 
pointment, not  counted. — Where  an  officer 
was  dismissed  from  the  Navy  and  subsequently 
reappointed  pursuant  to  a  joint  resolution  of 
Congress,  the  inter\'ening  period  during  which 
he  was  not  in  fact  in  the  naval  service  can  not 
on  any  theory  be  counted  as  part  of  said  40 
years  for  retirement  under  section  1443,  Revised 
Statutes.  The  act  of  March  3,  1883  (22  Stat., 
472),  which  closes  the  gap  in  intermittent  serv- 
ice so  as  to  make  it  operate  as  continuous, 
shows  conclusiA-ely  that  actual  service  and  none 
other  is  contemplated  by  the  law.  (21  Op. 
Atty.  Gen.,  103.) 

Period  of  unauthorized  absence  not  a 
period  of  service. — A  private  in  the  Marine 
Corps  is  not  entitled  in  computing  his  increase 
ot  pay  for  length  of  service  to  count  the  time  he 
was  absent  from  duty  without  leave.  The 
period  of  such  unauthorized  a])sence  can  not  be 
regarded  as  a  period  of  ser\'ice.  (10  Comp. 
Dec,  333;  file  5460-82,  June  3,  1916.) 

Period  of  service  under  an  illegal  ap- 
pointment.— An  officer  of  the  Revenue- 
Cutter  Service  [now  Coast  Guard]  is  not  entitled 
to  credit  for  prior  service  as  acting  assistant 


engineer,  where  his  appointment  as  such  was 
not  authorized  by  law.  (10  Comp.  Dec,  854, 
with  reference  to  longevity  pay.) 

Prior  service  in  Coast  Guard  not 
counted. — Service  in  the  Revenue  Cutter 
Ser\dce  [now  Coast  Guard]  is  in  no  sense  service 
in  the  Army  or  Navy.  Accordingly,  hdd  that 
officers  of  the  Marine  Corps  are  not  entitled 
to  credit  in  computing  longevity  pay  for  prior 
service  in  the  Revenue-Cutter  Service.  (15 
Comp.  Dec,  807.  But  see  act  June  4,  1920,  41 
Stat.,  835,  and  note  to  sec  1417,  R.  S.) 

Prior  service  in  militia  not  counted. — 
Officers  of  the  Army  are  not  entitled  to  credit 
for  prior  militia  service  in  computing  their 
longevity  pay.  (12  Comp.  Dec,  522;  compare 
24  Comp.  Dec,  120.  See  act  of  July  1,  1918 
40  Stat.,  710,  crediting  Naval  Reserve  Force 
members  with  service  in  the  Naval  Militia, 
etc.,  for  purpose  of  retirement.) 

Prior  service  as  captain's  clerk. — Service 
as  captain's  clerk  in  the  Navy  should  be  allowed 
in  computing  the  longevitv  pay  of  an  officer 
of  the  Army.     (17  Op.  Atty.  Gen.,  93.) 

Prior  service  as  commandant's  clerk. — 

The  proposal  to  count  ser\ice  of  clerks  of  com- 
mandants in  computing  military  service  is  an 
attempt  to  engraft  on  the  retired  list  of  the 
Navy  and  Marine  Corps  a  ciAil  retired  list. 
Such  legislation  is  regarded  by  the  Navy  De- 
partment as  pernicious,  needlessly  expensive, 
and  a  dangerous  precedent;  the  department  is 
unqualified! v  opposed  to  its  enactment.  (File 
26255-295:9, 'May  14  and  21,  1914;  file  2625^ 
295:8,  April  29,  1914;  file  26255-295:5,  Mar. 
30,  1914.) 

Service  as  commandant's  clerk,  being  strictly 
civilian  service,  should  not  be  counted  as  naval 
service  any  more  than  any  other  clerical 
service  at  navy  yards  or  in  the  department 
proper.  Accordingly,  the  Navy  Department 
disapproves  of  proposed  legislation  intended 
to  credit  officers  -ndth  service  as  commandant's 
clerks  for  purposes  of  retirement,  etc.  (File 
26255-274:2,  Jan.  21,  1913.)  The  position  of 
clerk  to  the  governor  of  the  Naval  Home  is 
comprehended  in  the  class  of  clerks  to  com- 
mandants of  naval  stations  who  under  the  pro- 
visions of  the  act  of  July  15,  1870  (16  Stat., 
332,  sec.  3),  are  officers  of  the  Navy  and  ac- 
cordingly under  the  act  of  March  3",  1883  ( 22 
Stat.,  473),  credit  for  service  therein  is  author- 
ized in  computing  the  longevity  increase  of 
pay  of  an  officer  of  the  Navy.  (25  Comp.  Dec, 
745.) 

Service  as  civilian  employee. — Service 
as  a  civilian  employee  in  a  Navy  pay  office  can 
not  be  credited  as  actual  naval  serWce  within 
the  meaning  of  the  retirement  clause  in  the  act 
of  Congress  approved  Mav  13,  1908.  (File 
5460-35  and  36.) 

Ser\ice  as  a  messenger  and  clerk  in  the  com- 
missary and  quartermaster's  departments  of 
the  Army  is  not  serAice  in  the  Army  within  the 
meaning  of  the  provision  for  longevitv  pav. 
(10  Comp.  Dec,  83.) 

See  note  to  section  1417,  Revised  Statutes, 
"Apprentices  at  navy  yards  not  enlisted  men." 

Time  under  arrest,  in  confinement,  on 
bail,  etc. — It  has  long  been  well  settled  that 
the  time  passed  in  arrest  under  military  con- 


588 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1444. 


trol,  but  not  under  sentence  of  court-martial, 
must  be  counted  in  making  up  five-year  service 
periods  for  increased  pay  under  section  1262, 
Revised  Statutes.  (3  Comp.  Dec,  682;  com- 
pare 3  Comp.  Dec,  697;  3  Comp.  Dec,  433.) 

A  soldier  in  an-est  under  military  control 
may  be  required  to  perform  many  duties;  he  is 
entitled  to  a  speedy  trial,  and  if  held  in  arrest 
for  a  long  period,  it  is  for  the  convenience  of 
the  Government.     (3  Comp.  Dec,  683.) 

In  view  of  the  presumption  of  law  that  a 
person  charged  -with  crime  is  innocent  until 
found  guilty  by  a  competent  tribunal,  although 
this  rule  has  some  limitations  in  military  law 
as  in  cases  of  time  lost  by  absence  without  leave 
or  by  desertion,  held,  that  a  soldier  who  is 
restored  to  duty  from  arrest  without  trial  is 
entitled  to  count  the  time  he  was  held  in  arrest 
under  military  control  as  service  for  bounty 
purposes  (3  Comp.  Dec,  676).  But,  if  subse- 
quently found  guilty,  time  so  in  arrest  can  not 
be  counted  in  making  up  the  term  of  ser\ice 
necessary  to  obtain  bounty,  as  during  such 
period  he  is  not  serving  within  the  meaning 
of  the  bounty  laws.  (3  Comp.  Dec,  684;  see 
also  3  Comp.  Dec,  692.) 

A  statute  pro^dding  that  deserters  from  the 
Army  shall  be  liable  to  "serve"  for  such  period 
as  necessary  to  make  good  time  lost  while  in 
desertion,  refers  to  actual  military  service  and 
does  not  include  time  spent  in  prison  under 
sentence  of  coiurt-martial.  The  period  during 
which  a  soldier  is  in  arrest  and  confinement 
in  pursuance  of  a  court-martial  sentence  after 
his  term  of  enlistment  has  expired  should  not 
be  counted  in  the  computation  of  his  continu- 
ous-service pay.     (12  Comp.  Dec,  592.) 

Pay  of  an  enlisted  man  of  the  Navy  held  by 
the  civil  authorities  for  trial  on  a  criminal  charge 
should  not  be  paid  until  he  is  acquitted,  and 
if  found  guilty  his  pay  is  then  forfeited  to  the 
United  States  from  the  date  of  his  arrest.  (2 
Comp.  Dec,  584.) 


Where  a  carpenter's  mate  of  the  Navy  was 
arrested  by  the  ci\'il  authorities  on  a  criminal 
charge,  and  admitted  to  bail  on  his  own  recog- 
nizance and  his  trial  indefinitely  postponed, 
and  it  was  apparently  not  the  intention  of  the 
authorities  to  further  prosecute  his  case,  his 
pay  was  not  thereby  forfeited.  (10  Comp.  Dec, 
490. )_ 

It  is  well  settled  that  an  enlisted  man  in  the 
military  service  is  not  entitled  to  pay  for  time 
while  held  for  trial  by  the  civil  authorities, 
unless  subsequently  tried  and  acquitted,  or 
discharged  without  trial.  (10  Comp.  Dec, 
490.) 

A  soldier  arrested  by  the  civil  authorities 
and  released  without  trial,  is  entitled  to  pay 
and  allowances  during  the  period  he  was  in 
arrest,  and  to  count  said  period  for  bounty. 
(3  Comp.  Dec,  676;  see  also  9  Comp.  Dec, 
249.)  Where  contacted  by  the  civil  authorities, 
he  is  not  entitled  to  pay  and  allowances  from 
the  date  he  was  turned  over  to  the  civil  authori- 
ties.    (3  Comp.  Dec,  334.) 

An  officer  of  the  Army  who  was  con\dcted  by 
the  ci\'il  courts  of  the  Philippine  Islands  and 
released  under  bond,  pending  an  appeal  to  a 
higher  court,  is  not  entitled  to  pay  pending  the 
final  determination  of  the  appeal.  (11  Comp. 
Dec,  659.)  The  status  of  such  officer  is  that 
of  "absent  without  leave,"  within  the  mean- 
ing of  section  1265,  Revised  Statutes,  pending 
the  determination  of  said  appeal,  and  under 
the  provisions  of  said  section  he  is  not  entitled 
to  pay  during  such  absence.  (11  Comp.  Dec, 
755.  Overruled,  Carrington  v.  U.  S.,  46  Ct. 
Cls.,  279,  citing  Walsh  v.  U.  S.,  43  Ct.  Cls., 
225.) 

An  officer  of  the  Navy  who  had  previously 
served  as  an  enUsted  man  in  the  Army  is  en- 
titled to  be  credited  with  service  for  the  time 
he  was  in  confinement  under  sentence  of  Army 
court-martial  for  desertion.  (File  5460-82, 
June  3,  1916). 


Sec.  1444.  [Eetirement  after  sixty-two  years  of  age,  or  forty-five  years 
service.]  When  any  officer  below  the  rank  of  Vice- Admiral  is  sixty- two  years 
old,  he  shall,  except  in  the  case  provided  in  the  next  section,  be  retired  by  the 
President  from  active  service. —  (21  Dec,  1861,  c.  1,  s.  1,  v.  12,  p.  329.  16 
July,  1862,  c.  183,  s.  8,  v.  12,  p.  584.  25  June,  1864,  c.  152,  s.  1,  v.  13,  p.  183. 
21  Dec,  1864,  c  6,  s.  3,  v.  13,  p.  420.     3  Mar.,  1873,  c  230,  v.  17,  p.    556.) 


Amendment  to  this  section  was  made  by  act 
August  29,  1916  (39  Stat.  579),  fixing  the 
age  of  retirement  at  64  years,  except  in  the 
cases  of  captains,  commanders,  and  lieu- 
tenant commanders  who,  after  June  30, 
1920,  become  ineligible  for  promotion  on 
account  of  age  (56,  50,  or  45  years,  respect- 
ively), who  shall  be  retired  at  rates  of  pay 
graded  according  to  their  length  of  service. 
(See  also  sec.  1445,  below.) 

Dental  Corps  officers  who  were  over  40  years  of 
age  on  original  appointment  shall  not  be 
eligible  for  retirement  before  reaching  the 
age  of  70  years,  except  for  physical  dis- 
ability incurred  in  line  of  duty.  (Act 
Aug.  29,  1916,  39  Stat.,  574,  as  amended 
by  act  July  1,  191g,  40  Stat.,  709.) 


Dental  surgeon  at  the  Naval  Academy  not  to 
be  retired  before  reaching  the  age  of  70 
years,  except  for  physical  disability  in- 
curred in  line  of  duty.  (Act  Mar.  4,  1913, 
37  Stat.,  891,  as  amended  by  act  July  1, 
1918,  40  Stat.,  709.) 

Naval  Reserve  Force  members  shall  upon  reach- 
ing the  age  of  64  years  be  disenroUed 
except  that  in  time  of  war  or  other  national 
emergency  such  members  of  the  Naval 
Reserve  Force,  if  in  active  service,  may 
be  continued  therein  during  such  period 
as  the  Secretary  of  the  Navy  may  deter- 
mine, but  not  longer  than  six  months  after 
said  war  or  other  national  emergency  shall 
cease  to  exist.  (Act  July  1,  1918,  40 
Stat.,  711.) 


589 


Sec.  1444. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Pay  of  oflicers  retired  ''after  forty -five  years' 

8er\ice  after  reacliiug  the  age  of  sixteen 

years,     *    *    *    or  on  attaining  the  age  of 

sixty-two  years."     (See  sec.  1588,  R.   S.) 

Rank  on  retirement  of  staff  officers  retired  for 

age  or  after  45  years'  service.     (See  sec. 

1481,  R.  S.) 

Rank  on  retirement  of  certain  bureau  chiefs 

retiied  for  age.     (See  sec.  1473,  R.  S.;  see 

generally,   as  to  retirement  of  cliiefs  of 

biueaiis,  note  to  sec.  421,  R.  S.;  and  see 

note  to  sec.  1457,  R.  S.,  as  to  rank  of  officers 

on  retirement  under  special  conditions.) 

Retiring  board  not  necessary  for  retirements 

on  account  of  age.     (See  sec.  1455,  R.  S.) 
Retirement    of   staff    ofhcers    after   45    years' 

service.  (Sec.  1481,  R.  S.) 
Warrant  officers,  mates  etc.  (See  note  to  sec. 
1443,  R.  S.) 
Historical  note. — This  section,  as  drafted 
by  the  Conmiissioners  for  the  Revision  of  the 
United  States  Statutes  (1  Comrs.  Draft,  700), 
was  entitled,  "After  sixty-two  years  of  age,  or 
forty-five  years'  service,"  and"  read:  "When 
any  officer  below  the  rank  of  vice  admiral  is 
sixty-two  years  old,  or  uhen  his  name  has  been 
borne  on  the  Naval  Register  for  a  period  of  forty- 
five  years  since  he  arrived  at  the  age  of  sixteen 
years,  he  shall,  except  in  the  case  provided  in 
the  next  section,  be  retired  by  the  President 
from  active  service."  The  words  in  italics 
were  omitted  from  tliis  section  as  adopted  by 
Congress,  but  the  caption,  "After  sixty-two 
years  of  age,  or  forty-five  years'  service,"  was 
retained. 

The  laws  upon  which  tliis  section  as  drafted 
by  the  Commissioners  was  based,  and  which 
are  cited  iia  the  marginal  notes  theremider,  pro- 
vided as  follows: 

Act  of  December  21,  1861,  section  1  (12  Stat., 
329):  "That  whenever  the  name  of  any  naval 
officer  now  in  the  service,  or  who  may  hereafter 
be  in  the  service  of  the  United  States,  shall  have 
been  borne  on  the  Naval  Register  forty-five 
years,  or  shall  be  of  the  age  of  sixty-two  years, 
he  shall  be  i-etired  from  active  service,  and  his 
name  entered  on  the  retired  list  of  officers  of 
the  grade  to  which  he  belonged  at  the  time  of 
such  retirement." 

Act  July  16,  1862,  section  8  (12  Stat.,  584): 
"That  whenever,  upon  the  recommendation  of 
the  President  of  the  United  States,  any  officer 
of  the  Navy,  now  upon  the  active  list,  not  below 
the  grade  of  commander,  has  received,  or  shall 
receive,  by  name,  during  the  present  war,  a 
vote  of  thanks  of  Congress  for  distinguished 
service,  such  officer  shall  not  be  retired,  except 
for  cause,  until  he  has  been  fifty-five  years  in 
the  naval  service  of  the  United  States." 

Act  June  25,  1864,  section  1  (13  Stat.,  183), 
pro-\dded  that  the  above  section  of  the  act  of 
December  21,  1861,  "shall  not  be  so  construed 
as  to  retire  any  officer  under  the  age  of  sixty- 
two  years,  and  whose  name  shall  not  have  been 
borne  upon  the  Navy  Register  for  a  period  of 
forty-five  years  after  he  had  arrived  at  the  age 
of  sixteen  years." 

Act  December  21,  1864,  section  3  (13  Stat., 
420):  "That  the  first  section  of  an  act  approved 
December  twenty-first,  eighteen  hundred  and 
sixty-one,  entitled  'An  act  further  to  promote 
the  efficiency  of  the  Navy,'  shall  not  be  so 


construed  as  to  apply  to  any  one  holding  a 
commission  as  a  vice  admiral  in  the  Navy." 

Act  March  3,  1873  (17  Stat.,  556):  "That  the 
act  of  Congress  approved  December  twenty- 
first,  eighteen  hmidred  and  sixty-one,  entitled 
'An  act  to  further  promote  the  efficiency  of 
the  Navy,'  and  the  act  approved  June  twenty- 
fifth,  eighteen  hundred  and  sixty-four,  entitled 
'An  act  to  amend  the  act  of  the  twenty-first 
December,  eighteen  hundred  and  sixty-one, 
entitled  "An  act  to  further  promote  the  effici- 
ency of  the  Navy,"  '  shall  not  be  hereafter  con- 
strued to  retire  any  officer  before  sixty-two 
years  of  age." 

The  first  section  of  the  act  of  December  21, 
1861  (12  Stat.,  329),  retired  from  service  two 
classes  of  naval  officers,  firstly,  those  whose 
names  may  have  been  borne  on  the  Naval  Regis- 
ter 45  years,  and  secondly,  those  who  had 
arrived  at  the  age  of  02  years.  The  act  of  June 
25,  1864,  provided  that  the  act  of  1861  "shall 
not  be  so  construed  as  to  retire  any  officer  under 
the  age  of  sixty-two  j'ears,  and  whose  name 
shall  not  have  been  borne  upon  the  Navy 
Register  for  a  period  of  forty-five  years  after 
he  had  arrived  at  the  age  of  sixteen  years." 
The  latter  act  had  the  effect  of  removing  from 
the  retired  list  officers  of  the  Navy  who  were 
retired  in  pursuance  of  the  act  of  December  21, 
1861,  but  who  were  not  liable  to  be  retired  by 
the  provision  of  the  act  of  1864.  (11  Op.  Atty. 
Gen.,  144.) 

The  act  of  December  21,  1861,  prescribed 
that  officers  should  be  retired  from  active  serv- 
ice for  two  separate  reasons,  ^n.z,  (1),  whose 
names  shall  have  been  borne  on  the  Navy  Reg- 
ister for  45  years;  or  (2),  who  shall  be  of  the  age 
of  62  years.  That  act  did  not  speak  in  the 
conjunctive  but  in  the  disjunctive;  that  is,  if 
either  the  one  cause  or  the  other  existed,  an 
officer  might  be  retired.  This  act  was  manda- 
tory, and  if  an  officer  had  served  45  years  his 
retirement  followed  as  a  matter  of  course,  with- 
out regard  to  his  age.  As  a  result,  no  doubt,  offi- 
cers were  placed  on  the  retired  list  who  had  not 
attained  the  age  of  62  years,  and  this  fact  led  to 
the  enactment  of  the  act  of  June  25,  1864, 
whereby  the  retirement  of  an  officer  was  for- 
bidden until  he  had  reached  the  age  of  62  years 
and  his  name  had  been  borne  on  the  N  avy  Reg- 
ister for  45  years.  Here  the  act  was  in  the 
conjunctive,  and  thereafter  both  conditions  for 
retirement  apparently  must  have  concurred, 
i.  e.,  both  as  to  age  and  as  to  length  of  service. 
Later  came  the  act  of  1873,  which  provided  that 
the  acts  above  mentioned  should  not  be  con- 
strued "to  retire  any  officer  before  sixty-two 
years  of  age";  but  while  no  express  mention 
was  made  therein  as  to  any  modification  of  the 
retirement  as  to  the  completion  of  45  years' 
service,  it  is  a  fact  that  the  Navy  Department 
for  nearly  40  years  has  construed  the  law  now 
embodied  in  section  1444  of  the  Revised  Stat- 
utes as  only  requiring  the  fulfillment  of  either 
requirement.     (File  5460-32  :  17,  Feb.  7, 1912.) 

The  opinion  of  the  District  of  Columbia  Su- 
preme Court  in  the  case  of  Foreman  v.  Meyer 
(mandamus  against  the  Secretary  of  the  Navy, 
file  5460-32)  states  the  provisions  of  law  upon 
which  section  1444,  Revised  Statutes,  is  based, 
and  then  continues:  "This  legislation,  ante- 
dating the  enactment  of  said  section  1444  of  the 


590 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1444. 


Revised  Statutes  of  1878,  indicates  that  it  was 
not  contemplated  by  Congress  that  ofiicers  were 
to  be  retired  on  reaching  the  age  of  62  years, 
unless  they  had  been  continuously  in  the  serv- 
ice for  45  years;  and  for  that  reason  the  relator, 
even  if  he  is  an  officer  within  the  meaning  of 
that  section,  which  is  c[uestionable,  fails  to  show 
a  clear  case  entitling  him  to  the  right  of  retire- 
ment or  a  plain  administrative  duty  on  the 
part  of  the  Secretary  of  the  Navy  to  place  his 
name  on  the  list  of  retired  officers. ' '  The  court 
then  reviewed  the  periods  of  service  of  peti- 
tioner and  said  that  "taken  all  together,  they 
do  not  seem  sufficient  to  warrant  the  court  in 
holding  that  he  has  been  for  45  years  in  the 
service  of  the  United  States  as  a  naval  officer, 
and  it  is  not  certain  but  that  a  proper  construc- 
tion of  the  law  requii'es  such  service  to  be  shown 
before  the  President  is  in  duty  bound  to  act  in 
the  premises."  (File  .5460-32:17,  Feb.  7, 
1912;  see  also  Foreman  v.  Meyer,  227  U.  S., 
452,  38App.  D.  C,  472.) 

It  must  be  conceded  that  the  several  separate 
provisions  of  law  upon  which  section  1444  is 
based  are  not  entii'ely  clear,  but  the  construc- 
tion given  to  those  laws  by  the  Navy  Depart- 
ment during  a  period  of  39  years  under  siich 
circimistances  should  be  controlling  (citing 
U.  S.  V.  Healey,  IGO  U.  S.,  136,  141,  145).  But 
even  if  this  fact  were  not  regarded  as  controlling, 
there  is  other  evidence  of  a  legislative  character 
as  to  what  were  intended  to  be  the  require- 
ments for  the  kind  of  retirement  now  being 
considered  (citing  sees.  1481  and  1455,  R.  S.). 
The  former  section  plainly  provides  for  retire- 
ment after  45  years'  service,  but  it  also  pro- 
vides separately  for  the  retirement  of  officers  at 
the  age  of  62  years,  "before  having  served  for 
forty-five  years,"  and  confers  a  higher  rank 
upon  those  of  this  latter  class  "who  shall  have 
served  faithfully  until  retired  "  after  40  years' 
service.  This  is  a  definite  legislative  recogni- 
tion of  the  department's  construction  of  the 
law,  and  clearly  shows  that  the  provisions  of  the 
law  then  and  now  in  force  do  not  require  that 
an  officer  must  have  served  45  years  before  he 
can  be  retired  for  age,  but,  on  the  contrary,  indi- 
cate that  there  may  be  retirement  for  the  single 
reason  that  an  officer  has  attained  the  age  of  62 
years.  Section  1473,  Revised  Statutes,  also 
indicates  the  same  construction,  and  section 
1588  confirms  it.  The  latter  section  specifically 
provides  for  retirement  on  attaining  the  age  of 
62  years,  separate  and  distinct  from  retirement 
after  45  years'  sersdce.  Section  1589  also  con- 
firms the  views  above  expressed .  It  appears  to 
be  evident  from  the  above  that  the  construction 
placed  by  the  Navy  Department  upon  the  law 
relating  to  retirement  for  age  is  entirely  correct. 
(File  5460-32:17,  Feb.  7,  1912.) 

The  act  of  March  3,  1873  (above  quoted),  in 
effect  repealed  the  45-year  retirement  clause  in 
tJie  act  of  December  21,  1861  (above  quoted), 
and  the  latter  clause  has  not  been  carried  into 
the  Revised  Statutes.  (File  27231-10,  Feb.  9, 
1910;  see  also  sec.  5596,  R.  S.,  repealing  all 
acts  of  Congress  passed  prior  to  Dec.  1,  1873,  any 
portion  of  which  is  embraced  in  any  section  of 
the  Revised  Statutes.) 

Age  retirement  not  automatic;  action 
of  President  required. — The  Army  law, 
providing  that  when  an  officer  "is  sixty-four 


years  of  age  he  shall  be  retired  from  active  serv- 
ice and  placed  on  the  retired  list,"  does  not 
operate,  ipso  facto,  to  place  him  on  the  retired 
list  when  he  reaches  the  age  specified,  but  it 
requires  action  by  the  President  to  carry  it  into 
effect.  Accordingly,  hdd  that  where  an  order 
was  issued  on  the  date  that  an  officer  became 
64  years  of  age,  retiring  him  from  active  service, 
which  order  was  not  received  by  him  until 
more  than  a  month  later,  and  he  was  not  re- 
lieved of  duty  until  another  month  later,  he 
was  entitled  to  full  pay  to  the  date  that  he  was 
relieved  from  duty.  (9  Comp.  Dec,  20;  com- 
pare 9  Comp.  Dec,  299,  noted  below.) 

The  delay  in  the  above  case  was  not  unrea- 
sonable, and  was  not  caused  by  any  act  or  de- 
fault of  the  officer.  It  is  within  the  power  of 
the  War  Department  to  issue  an  order  in  ad- 
vance of  the  date  on  which  an  officer  arrives 
at  the  age  of  64  years,  to  take  effect  on  that 
date,  and  also  to  issue  an  order  to  him  in  ad- 
vance relieving  him  from  duty  on  the  active 
list  on  that  date.  (9  Comp.  Dec,  20;  compare 
9  Comp.  Dec,  299,  noted  below.) 

Retirement  for  age  automatically  de- 
taches officer  from  duty. — The  retirement 
of  an  officer  for  age  therel)y  detaches  him  from 
active  duty,  and  the  commanding  officer  of  his 
vessel  is  not  authorized  to  retain  him  in  active 
service  unless  it  is  done  in  accordance  with  a 
decision  of  the  Secretary  of  the  Navy  pursuant 
to  law.  Accordingly,  held  that  an  officer  so 
retained  in  active  service  without  authority  of 
the  Secretary  of  the  Navy,  is  entitled  to  retired 

Bay  only,  from  date  of  his  retirement.     (9  Comp. 
•ec,  299;  see  also  note  to  sec.  1462,  R.  S.; 
compare  9  Comp.  Dec,  20,  noted  above.) 

An  order  of  the  President  placing  an  officer  of 
the  Navy  upon  the  retii'ed  list  pursuant  to  sec- 
tion 1444,  Revised  Statutes,  changes  the  status  of 
such  officer  wherever  he  may  be  and  whatever 
duty  he  may  be  performing,  and  thereafter  he  is 
entitled  to  retned  pay  only  unless  such  status  is 
changed  by  some  subsequent  order  of  the  Secre- 
tary of  the  Navy  to  perform  active  duty .  1 1  may 
be  that  the  Secretary  of  the  Navy  might  issue  a 
preliminary  order  in  terms  assigning  an  officer 
to  duty  after  retirement,  but  such  order  should 
be  certain  in  its  terms  and  not  given  that  effect 
by  strained  construction.  (Terry  v.  U.  S.,  Ct. 
Cls.,  No.  28148,  86  S.  and  A.  Memo.,  644;  see 
also  17  Comp.  Dec,  533.) 

When  retirement  for  age  becomes 
effective. — An  officer  of  the  Navy  becomes 
62  years  of  age  and  is  required  to  be  retired 
within  the  meaning  of  section  1444,  Re\'ised 
Statutes,  the  moment  of  the  beginning  of  the 
date  of  the  sixty-second  anniversary  of  his 
birth,  and  is  not  entitled  to  jsay  on  the  active 
list  on  that  day.  (3  Comp.  Dec,  581.  In  this 
case  the  order  for  the  officer's  retirement  was 
issued  beforehand,  to  take  effect  on  the  date 
of  his  sixty-second  birthday.  Compare  16 
Comp.  Dec,  682,  noted  under  sec.  1458,  R.  S.) 
The  officer  ceased  to  be  an  officer  on  the  ac- 
tive list  of  the  Navy  upon  the  very  moment 
after  midnight  that  the  5th  day  of  April  began, 
and  was  in  accordance  with  the  very  terms  of 
the  order  of  April  1,  transferred  to  the  retired 
list  "on  April  5,  1897."  The  law  does  not 
consider  fractions  of  a  day,  "and  it  is  the  same 
whether  a  thing  is  done  upon  one  moment  of 


591 


Sec.  1444. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


the  (lay  or  another."  lie  became  in  the  eye 
of  the  law  C2  years  of  age  the  moment  after 
midnight  between  the  fourth  and  fifth  days  of 
April.     (3  Corap.   Dec,   581.) 

For  other  cases,  see  note  to  section  1457, 
Revised  Statutes,  "When  retirement  or  ad- 
vancement on  retired  list  takes  effect."  See 
also  note  to  section  14-')8,  Revised  Statutes. 

Oflicer  who  reaches  retirement  age 
while  his  promotion  is  pending. — ^Whcre 
upon  the  retirement  of  a  rear-admiral  for  age, 
a  commodore  next  in  line  was  nominated  to  be 
a  rear-admiral  to  fill  the  vacancy,  and  before 
action  thereon  by  the  Senate  the  said  commo- 
dore attained  the  age  of  62  years  and  was  retired 
under  section  1444,  Revised  Statutes,  as  a 
commodore:  Advised  that,  according  to  the 
law  and  usage  of  the  service,  the  officer  in  this 
case  was  entitled  by  relation  to  be  a  rear- 
admiral  from  the  date  when  the  vacancy  oc- 
curred ,  and  to  receive  the  pay  of  a  rear-admiral 
from  that  date;  and  if  the  Senate  should  con- 
firm his  nomination  he  might  be  commissioned 
as  a  rear-admiral  and  placed  on  the  retired  list 
as  of  that  grade.  (18  Op.  Atty.  Gen.,  393; 
compare  25  Op.  Atty  Gen.,  591,  and  29  Op. 
Atty.  Gen.,  257,  noted  under  sec.  1458, 
R.  S.,  to  effect  that  office  does  not  vest  until 
date  of  commission,  notwithstanding  that  it  is 
made  to  relate  back  for  purposes  of  rank.) 

Where  an  officer  accepts  a  recess  promotion 
and  thereafter  becomes  eligible  for  retirement 
by  reason  of  age  before  the  adjournment  of 
Congress  and  before  the  appointment  is  acted 
upon  by  the  Senate,  he  is  entitled  to  be  retired 
with  the  rank  of  his  new  appointment.  (29 
Op.  Atty.  Gen.,  598;  see  also  note  to  sec. 
1457,  R.  S.) 

Retirement  by  special  act  made  to 
relate  back. — The  words,  "and  to  place  him 
on  the  retired  list  of  the  Navy  as  of  date  June 
first,  eigliteen  hundred  and  ninety-five,"  in 
the  special  enactment  of  Congress  for  the  relief 
of  a  former  officer,  must  be  construed  to  show 
the  legislative  intent  to  be  that  he  was  to  be 
retired  as  "on  attaining  the  age  of  sixty- two 
years,"  he  having  attained  that  age  on  May  30, 
1895.    (3  Comp.  Dec,  706.) 

For  other  cases,  see  note  to  section  1457, 
Revised  Statutes,  "When  retirement  or  ad- 
vancement on  retired  list  takes  effect." 

Appointment  of  ofllcer  already  past 
retiring  age. — Where  Congress,  by  special 
enactment,  authorizes  the  appointment  as  an 
officer  of  a  designated  person  who  is  already- 
past  the  retiring  age,  but  says  nothing  in  such 
enactment  about  placing  him  on  the  retired 
list,  it  must  be  held  that  the  law  relatmg  to 
retirement  for  age  has  no  application  to  his  case. 
Should  he  ^  be  physically  incapacitated  for 
active  service  he  may  be  ordered  before  a 
retiring  board  in  accordance  with  law.  There 
are  many  precedents  which  show  that  when 
Congress  has  intended  to  authorize  the  appoint- 
ment of  a  civilian  as  an  officer  of  the  naval  serv- 
ice, and  immediately  upon  such  appointment 
to  transfer  him  to  the  retired  list,  it  has  not 
failed  to  express  such  intention  in  explicit 
language.  In  the  present  case  Congress  did 
not  pro\'ide  for  the  appointment  of  the  civilian 
as  a  first  lieutenant  on  the  retired  list  of  the 
Marine  Corps,  nor  did  it  provide  that  he  should 


be  appointed  on  the  active  list  and  then  re- 
tired, as  has  been  the  practice  in  similar  cases 
when  such  was  the  intention,  but,  on  the  con- 
trar)',  notwithstanding  his  age,  Congress 
authorized  his  appointment  as  an  officer  on 
the  active  list  of  the  Marine  Corps  "as  an  extra 
number,  not  iix  the  line  of  promotion,"  which 
language  would  have  been  unnecessary  had  his 
immediate  retirement  been  in  contemplation. 
(File  27231-52,  May  16,  1913.) 

If  the  laws  prescribing  the  age  for  retirement 
of  Army  ofiicers  were  held  applicable  to  the 
volunteer  service,  the  President  would  not 
have  the  right  to  appoint  to  an  office  in  the 
volunteer  service  any  one  of  the  age  of  64  or 
over.     (22  Op.  Atty.  Gen.,  199.) 

Where  the  law  creates  new  offices  in  the  naval 
service,  and  does  not  prescribe  any  age  limit  for 
appointment  thereto,  held,  that  a  person  other- 
wise qualified,  but  who  had  already  passed  the 
retiring  age,  is  not  eligible  for  appointment. 
The  retirement  laws  fix  the  maximum  age  be- 
yond which  no  person  may  lawfully  be  ap- 
pointed to  any  office  in  the  naval  servdce 
without  the  specific  authoritv  of  Congress. 
(File  11112-658,  Nov.  15,  1916"  Compare  file 
26255-54:7,  July  15,  1912.) 

Age  retirement  held  inappUcable  to 
volunteer  ofiicers. — The  law  fixing  the  age 
of  retirement  in  the  Army  at  64  years  was  not 
intended  to  operate  to  restrict  future  eligibility 
to  serve  in  an  emergency,  nor  to  limit  the  riglit 
of  the  President  to  appoint  to  a  new  volunteer 
service.  The  Army  retired  lists  apply  to  the 
Regular  Army  alone,  with  due  credit  given  for 
the  time  of  volunteer  service  of  officers  of  the 
Regular  Army,  and  do  not  apply  to  a  volunteer 
Army.  A  contrary  view  would  lead  to  an  un- 
reasonable consequence,  such  as  the  courts 
in  construing  legislation  will  reject,  viz,  that 
the  President  would  not  have  the  right  to 
appoint  to  an  office  in  the  volimteer  service 
anyone  of  the  age  of  64  years  or  over,  and  that 
an  officer  in  the  volunteer  service,  reaching 
the  age  of  64  years,  without  the  continuous 
service  contemplated  by  the  retirement  acts, 
and  no  matter  how  brief  his  period  of  duty, 
would  be  entitled  to  be  retired.  It  is  only 
necessary  to  state  this  position  to  refute  it. 
(22  Op.  Atty.  Gen.,  199.) 

Where  the  law  fixes  no  age  limit  for  officers 
in  the  Volunteer  Army,  it  is  competent  for  the 
President  to  appoint  as  a  major  general  or 
brigadier  general  in  the  Volunteer  Army  a 
person  above  the  age  of  64  years.  (22  Op. 
Atty.  Gen.,  176;  affirmed  22  Op.  Atty.  Gen., 
199.) 

Where  the  law  fixes  no  age  limit  for  officers 
in  the  Volunteer  Army,  an  officer  of  the  Regular 
Army,  holding  at  the  same  time  a  commission 
as  a  general  in  the  Volunteer  Army,  may  con- 
tinue to  hold  and  exercise  his  commission 
in  the  Volunteer  Army  after  having  been  placed 
upon  the  retired  list  of  the  Regular  Army  by 
reason  of  the  age  limit.  (22  Op.  Atty.  Gen., 
176;  affirmed  22  Op.  Atty.  Gen.,  199.) 

Officer  retired  for  incapacity  and  sub- 
sequently reaching  retiring  age. — Where 
the  law  provided  for  placing  certain  officers 
[Revenue  Cutter  Service]  upon  a  "retired 
waiting  orders  list,"  when  found  by  a  retiring 
board  to  be  incapacitated  for  active  service, 


592 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1446. 


and  that  "officers  thus  retired  may  be  assigned 
to  such  duty  as  they  may  be  able  to  perform," 
and  further  provided  that  when  any  officer 
' '  has  readied  the  age  of  sixty-four  years  he  shall 
be  retired  by  the  President  from  active  serv- 


ice," held,  that  an  officer  placed  on  the 
retired  waiting  orders  list  should,  upon  be- 
coming 64  years  of  age,  be  retired  from  active 
ser\'ice  under  the  latter  provision.  (11  Comp. 
Dec,  612.) 


Sec.  1445.  [Officers  of  certain  ranks  to  be  retired  only  for  disability.] 
The  two  preceding  sections  shall  not  apply  to  any  lieutenant-commander, 
lieutenant,  master,  ensign,  midshipman,  passed  assistant  surgeon,  passed 
assistant  paymaster,  first  assistant  engineer,  assistant  surgeon,  assistant  pay- 
master, or  second  assistant  engineer;  and  such  officers  shall  not  be  placed  upon 
the  retired  list,  except  on  account  of  physical  or  mental  disability. — (15  July, 
1870,  c.  295,  s.  6,  v.  16,  p.  333.) 


Dental  Corps  retirements  were  not  to  be  affected 
by  provisions  of  this  section,  under  a  clause 
in  the  act  of  August  22, 1912  (37  Stat.,  345), 
which  act,  in  so  far  as  it  pertained  to  the 
Dental  Corps,  was  superseded  by  act  of 
August  29,  1916  (39  Stat.,  573),  the  pro- 
visions of  which  latter  act  were  in  turn 
superseded  by  act  of  Julyl,  1918(40  Stat. 
709),  which  also  provided  that  section  1445, 
Revised  Statutes,  "shall  not  be  applicable 
to  dental  officers." 

" First  assistant  engineer, "  and  "second  assist- 
ant engineer,"  titles  changed  to  passed 
assistant  engineer  and  assistant  engineer, 
and  Engineer  Corps  afterwards  abolished. 
(See  note  to  sec.  1390,  R.  S.) 

Lieutenants  and  Lieutenant  commanders,  pro- 
vision for  compulsory  retirement  of,  to 
create  vacancies,  was  made  by  act  of  March 
3,  1S99,  section  9  (30  Stat.,  lOOG),  repealed 
by  act  of  March  3,  1915  (38  Stat.,  938).  _ 

Lieutenant  commanders,  provision  for  retire- 
ment of,  upon  their  own  application,  to 
create  vacancies,  was  made  by  act  of  March 
3,  1899,  section  8  (30  Stat.,  1006). 

Lieutenant  commanders,  provision  for  retire- 
ment of,  upon  becoming  ineligible  for  pro- 
motion on  account  of  age  (45  years),  was 
made  by  act  of  August  29,  1916  (39  Stat., 
579),  effective  June  30,  1920. 

"Master"  and  "midshipman,"  titles  changed 
to  lieutenant  (junior  grade)  and  ensign. 
(See  note  to  sec.  1362,  _R.  S._) 

Retirements  on  account  of  Usability.  (See  sec. 
1448,  R.  S.) 

Temporary  officers,  appointed  for  service  dur- 
ing war  with  Germany,  not  entitled  to  re- 
tirement except  for  physical  disability  in- 


curred in  line  of  duty.  (Act  May  22,  1917, 
sec.  9,  40  Stat.,  84.) 

"Physical  incapacity"  is  defined  as  a 
condition,  bodily  or  mental,  which  unfits  at 
present,  or  is  likely  to  unlit  in  the  near  future, 
the  officer  for  the  performance  of  his  duties. 
(21  Op.  Atty.  Gen.,  387,  quoting  Circular,  War 
Department,  Dec.  18,  1890,  relating  to  ex- 
amination for  promotion.  See  further,  note  to 
sec.  1448,  R.  S.) 

Midshipmen  are  retired  for  physical 
disability  pursuant  to  special  acts  of  Congress, 
and  are  given  the  rank  of  ensign  on  the  retired 
list,  these  cases  not  being  provided  for  by  gen- 
eral statutes.  See  for  example,  act  ]\Iarch  3, 
1901  (31  Stat.,  1792),  in  case  of  Frank  B.  Case; 
act  March  4,  1907  (34  Stat.,  1417),  in  case  of 
Harold  D.  Childs;  act  January  5, 1909  (35  Stat., 
585),  in  case  of  WilUam  Parker  Sedgwick;  act 
February  13,  1911  (36  Stat.,  899),  in  case  of 
John  M.  Blankenship;  and  act  March  3,  1911 
(36  Stat.,  1079),  in  case  of  William  H.  Walsh. 

The  Navy  Department  is  of  the  opinion  that 
midshipmen  who  become  disabled  in  line  of 
duty  while  serving  as  officers  at  sea  should  have 
the  benefit  of  the  retirement  laws  in  the  same 
manner  as  other  officers  of  the  Navy,  has  recom- 
mended general  legislation  to  that  effect,  and 
looks  with  favor  upon  the  passage  of  a  meas- 
ure for  the  retirement  of  a  former  midshipman 
under  such  circumstances.  (File  6288-1,  Jan. 
14,  1907;  file  26255-802,  May  9,  1910;  file 
9066-1,  Jan.  20,  1908.)  IVIidshipmen  are  now 
commissioned  as  officers  on  graduation  from  the 
Naval  Academy,  instead  of  serving  two  years 
as  midshipmen  at  sea  after  such  graduation,  as 
was  formerly  the  case.  See  act  of  March  7,  1912 
(37  Stat.,  73). 


Sec.  1446.  [Officers  who  have  received  a  vote  of  thanks;  retirement  after 
fifty-five  years'  service.     Obsolete.] 


This  section  provided  as  follows: 

"Sec.  1446.  Officers  on  the  active  list,  not 
below  the  grade  of  commander,  who  have,  upon 
the  recommendation  of  the  President,  received 
by  name,  during  the  war  for  the  suppression  of 
the  rebellion,  a  vote  of  thanks  of  Congress  for 
distinguished  service,  shall  not  be  retired,  ex- 
cept for  cause,  until  they  have  been  fifty-five 
years  in  the  service  of  the  United  States." — 
(16  July,  1862,  c.  183,  s.  8,  v.  12,  p.  584.) 

It  is  rendered  obsolete  by  having  been 
fully  executed,  as  there  are  no  officers  now  on 


the  active  list  of  the  Navy  who  are  affected  by 
its  provisions. 

Civil  War  service. — Increased  rank  and  pay 
on  retirement  of  officers  of  the  Na\y,  with 
creditable  records,  who  served  during  theCi^al 
War,  was  authorized  by  act  of  March  3,  1899, 
section  11  (30  Stat.,  1007),  act  of  June  29,  1906 
(34  Stat.,  554),  and  act  of  March  3,  1909(35 
Stat.,  753). 

Thanks  of  Congress,  effect  of. — See 
sections  1365,  1465,  1508-1510,  Revised  Stat- 
utes. 


593 


Sec.  1447. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


Officers  who  received  thanks  of  Congress 
during  Civil  War. — The  follo\\iiig  ollicers 
rec-eived  the  thanks  of  Congress  by  name: 

Capt.  Samuel  F.  Dupont,  February  22,  1862 
(12  Stat.,  613). 

Capt.  A.  H.  Foote,  March  19,  1862  (12  Stat., 
616). 

Capt.  Louis  j\I.  Goldsborough,  July  11,  1862 
(12  Stat.,  621). 

Lieut.  J.  L.  Worden,  July  11,  1862  (12  Stat., 
622). 

Capt.  David  G.  Farragut,  July  11,  1862  (12 
Stat.,  622). 

Capt.  Andrew  H.  Foote,  July  16,  1862  (12 
Stat.,  626). 

Commodore  Charles  Hemy  Davis,  February 
7,  1863  (18  Stat.,  823). 

Commander  John  L.  Worden,  February  3, 
1863  (12  Stat.,  823). 

Capt.  John  A.  Dahlgren,  February  7,  1863 
(12  Stat.,  824). 

Capt.  Stephen  C.  Rowan,  February  7,  1863 
(12  Stat.,  824). 


Commander  David  D.  Porter,  February  7, 

1863  (12  Stat.,  824). 

Rear  Admiral  Silas  H.  Stringham,  February 
7,  1863  (12  Stat.,  824). 

Capt.  John  Rodgers,  December  3,  1863  (13 
Stat.,  399). 

Commodore  Cadwalader  Ringgold,  March  7, 

1864  (13  Stat.,  403). 

Admiral  David  D.  Porter,  April  19,  1864  (13 
Stat.,  404). 

Capt.  John  A.  Winslow,  December  20,  1864 
(13  Stat.,  505). 

Lieut.  William  B.   Cushing,   December  20, 

1864  (13  Stat.,  565). 

Rear  Admiral  David  D.  Porter,  January  24, 

1865  (13  Stat.,  566). 

Vice  Admiral  David  G.  Farragut,  February 
10,  1806  (14  Stat.,  349). 

What  time  counted  as  "service"  in  the 
Navy. — See  13  Op.  Atty.  Gen.,  33,  noted  under 
section  1443,  Revised  Statutes, 


Sec.  1447.  [Retirement  of  officers  not  recommended  for  promotion.]  Wlien 
the  case  of  any  officer  has  been  acted  upon  by  a  board  of  naval  surgeons  and 
an  examining  board  for  promotion,  as  provided  in  Chapter  Four  of  this  Title, 
and  he  shaU  not  have  been  recommended  for  promotion  by  both  of  the  said 
boards,  he  shall  be  placed  upon  the  retired  list. — (21  April,  1864,  c.  63,  s.  4,  v. 
13,  po  53.) 


Captains,  commanders,  and  lieutenant  com- 
manders who  fail  professionally  shall  there- 
after be  ineligible  for  promotion;  if  they 
fail  physically  they  shall  not  be  considered , 
in  the  event  of  retirement,  entitled  to  the 
rank  of  the  next  higher  grade.  (Act  Aug. 
29,  1916,  39  Stat.  579.) 

"Chapter  Four  of  this  Title,"  refers  to  sections 
1466-1510,  Revised  Statutes. 

Officers  not  to  be  retired  for  misconduct.  (Sec. 
1456,  R.  S.) 

Officers  examined  for  promotion  and  found 
unfit  to  perform  duties  at  sea,  by  reason 
of  drunkenness  or  other  misconduct,  shall 
not  be  retired  but  shall  be  discharged  with 
not  more  than  one  year's  pay.  (Act  Aug. 
5,  1882,  22  Stat.,  286;  see  note  to  sec. 
1456,  R.  S.) 

Oflicers  failing  physically  upon  examination 
for_  promotion,  to  have  increased  rank  on 
retirement,  in  certain  cases.  (Act  Mar.  4, 
1911,  36  Stat.,  1267;  amended  by  act  Aug. 
29,  1916,  39  Stat.,  579.) 

Officers  below  gi-ade  of  commander  failing  pro- 
fessionally upon  examination  for  promo- 
tion, to  be  suspended  from  promotion  for 
six  months,  then  reexamined  and  if  found 
not  qualified  upon  reexamination,  to  be 
dropped  from  the  service.  (Sec.  1505,  R. 
S.,  as  amended  by  act  Mar.  11,  1912,  37 
Stat.,  73;  but  see  act  Aug.  29,  1916,  39 
Stat.,  579,  noted  above,  as  to  professional 
failure  of  lieutenant  commanders.) 

Officers  may  be  retired,  on  account  of  failing 
to  be  recommended  for  promotion,  without 
appearing  before  a  retiring  board.  (See 
sec.  1455,  R.  S.) 


Physical  or  mental  disability  only  ground  for 
retirement  of   certain  officers.     (See  sec. 
1445,  R.  S.,  and  note  thereto.) 
Staff  officers:    "  Hereafter  all  laws  relating  to 
the  examination  of  officers  of  the  Navy 
for  promotion  shall  be  construed  to  apply 
to  the  regular  advancement  of  staff  offi- 
cers to  higher  ranks  on  the  active  list  the 
same  as  though  such  advancements  in  rank 
were   promotions  to   higher  grades:  Pro- 
vided, That  examinations  of  such  staff  offi- 
cers shall  not  be  required  except  for  such 
regular  advancements  in  rank."  (Act  May 
22,  1917,  sec.  20,  40  Stat.,  89.) 
This  section  applicable  only  to  officers 
above     the     grade     of    lieutenant    com- 
mander.— The  act  of  April  21,  1864,  was  the 
first  act  requiring  examinations  generally  prior 
to  promotion.     The  failm'e  on  such  examination 
resulted  in  retirement,  and  this  applied  to  all 
grades  below  that  of  commodore.     The  depart- 
ment's construction   of  the  statute  was  that 
failure  upon  either  examination  was  a  proper 
cause    for    retirement.     This    procedure    con- 
tinued until  1870,  when  by  the  act  of  July  15 
of    that    year    (now   sec.    1505,   R.  S.),  there 
was  substituted  for  retirement  in  certain  cases 
a  provision  for  suspension  from  promotion  of 
officers  below  the  grade  of  commander  who 
failed  professionally  upon  examination.     Re- 
tirement upon  professional  failure  for  promo- 
tion,   which    theretofore   had    applied    to    all 
grades,  thereafter  apphed  only  to  the  cases  of 
officers  of  the  grades  of  commander  and  cap- 
tain.    (File  26260-874,  June  3,  1910;  compare 
act  Aug.   29,   1916,  39  Stat.,  579,  as  to  line 
officers  of  and  above  the  grade  of  lieutenant 


594 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1447. 


commander  who  are  not  recommended  for  pro- 
motion.) 

An  officer  of  the  rank  of  commander  was 
examined  for  promotion  and  found  physically, 
mentally,  and  morally,  but  not  professionally, 
qualified;  recommended  for  promotion  by  the 
medical  board,  but  not  so  recommended  by 
the  naval  examining  board.  Section  1496,  Re- 
vised Statutes,  prohibits  promotion  of  officers 
below  the  rank  of  commodore  (now  rear  ad- 
miral) until  found  mentally,  morally,  and  pro- 
fessionally qualified  by  a  board  of  examiners. 
The  penalty  for  professional  failure  is  fixed  by 
section  1505,  Revised  Statutes,  which  applies 
only  to  officers  below  the  grade  of  commander; 
that  section  does  not  apply  to  present  case,  as 
the  officer  is  in  the  grade  of  commander,  and 
not  below  it.  Question  presented,  What  dis- 
position should  be  made  of  this  case?  Section 
1447,  Revised  Statutes,  provides  for  retirement 
of  officer  not  recommended  for  promotion.  In 
general,  under  section  1456,  Revised  Statutes, 
and  the  act  of  August  5,  1882,  misconduct  is 
not  a  ground  for  retirement.  This  officer's 
record  does  not  show  that  he  is  accused  of 
anything  of  that  nature ;  he  would  not,  there- 
fore, be  subject  to  discharge  on  that  ground, 
which  could  only  follow  as  the  result  of  a  find- 
ing of  moral  disqualification,  nor  would  he  be 
subject  to  dismissal  by  a  court-martial.  It 
would  appear,  then,  that  he  can  not  be  dis- 
missed, discharged,  suspended,  or  promoted, 
nor  can  he  be  retired,  unless  imder  the  pro- 
visions of  section  1447.  He  can  not,  moreover, 
be  retained  at  the  top  of  the  list  of  commanders 
until  such  time  as  he  may  be  able  to  qualify, 
because  of  the  requirements  of  section  1458, 
Revised  Statutes,  and  yet,  although  the  senior 
officer,  he  can  not  be  advanced  as  he  has  not 
qualified  therefor.  The  only  alternative  is  to 
apply  the  provisions  of  sections  1496  and  1447, 
Revised  Statutes.  Advised,  accordingly,  that 
this  officer  should  be  retired  under  the  pro^'i- 
sions  of  section  1447,  Revised  Statutes.  (File 
26260-874,  June  3,  1910.  This  case  was  dis- 
posed of  by  the  voluntary  retirement  of  the 
officer  concerned  in  accordance  with  sec.  8  of 
the  Navy  personnel  act  approved  Mar.  3,  1899, 
30  Stat.,  1006.) 

Action  of  both  boards  essential  before 
retirement  under  this  section. — The  act 
of  April  21, 1864,  section  4,  chapter  63  [now  em- 
bodied in  section  1447,  Revised  Statutes],  pro- 
vides that  "all  officers  whose  cases  shall  have 
been  acted  upon  by  the  aforesaid  boards  and  who 
shall  not  have  been  recommended  for  promotion 
by  both  of  them,  shall  be  placed  upon  the  retired 
list."  This  section  plainly  contemplates  and 
requires  that  there  shall  have  been  an  examina- 
tion by  two  boards,  and  that  both  shall  have 
failed  to  recommend  an  officer  for  promotion  be- 
fore, in  the  language  of  the  act,  he  "shall  be 
placed  upon  the  retired  list."  One  of  these 
boards  is  a  board  of  naval  surgeons,  the  other  is 
"a  board  of  examining  officers,  to  be  appointed 
by thePresidentof theUnited States."  Before, 
therefore,  a  medical  officer  of  the  Navy  is  placed 
on  the  retired  list  under  the  provisions  of  this 
act,  it  should  appear  that  his  case  has  been  actod 
upon  by  two  boards,  one  of  them  a  board  of 
naval  surgeons  who  passed  upon  his  physical 
qualifications  to  perform  all  his  duties  at  sea, 


the  other  a  board  of  examining  officers  senior  in 
rank  to  him,  and  appointed  by  the  President, 
who  considered  his  mental,  moral,  and  pro- 
fessional fitness  to  perform  his  duties  at  sea, 
and  further  it  should  appear  that  he  was  not 
recommended  for  promotion  by  both  of  such 
boards.  If  the  fact  be  that  but  one  board,  a 
board  of  naval  surgeons,  has  acted  upon  the 
cases  of  certain  medical  officers,  it  is  not  the 
duty  of  the  department  to  place  them  on  the 
retired  list.  (11  Op.  Atty.  Gen.,  105;  see  also 
12  Op.  Atty.  Gen.,  347.) 

Unfavorable  report  by  one  board  su£B.- 
cient  for  retirement. — If  the  finding  of 
either  board  is  unfavorable,  the  statute  is  per- 
emptory that  the  officer  shall  be  placed  on  the 
retired  list.  The  statute  leaves  the  President 
no  discretion.  (Thompson  v.  U.  S.,  18  Ct.  Cls., 
604,  611.) 

An  officer  passed  the  examination  by  the 
board  of  surgeons  and  failed  to  pass  the  pro- 
fessional examination.  The  President  ap- 
proved the  finding  and  placed  the  officer  on 
the  retired  list.  Having  approved  the  finding, 
he  could  not  do  otherwise  than  place  him  there. 
(Thompson  v.  U.  S.,  18  Ct.  Cls.,  604,  611;  see 
also  Da\'is  v.  U,  S.,  24  Ct.  Cls.,  442,  noted  be- 
low, under  ' '  Officer  not  mentally,  morally,  and 
professionally  qualified . " ) 

The  Attorney  General,  in  11  Op.  Atty.  Gen., 
105,  construed  the  law  embodied  in  this  section 
as  requiring,  before  the  retirement  of  an  officer 
thereunder,  that  both  the  examining  board 
and  the  medical  board  shall  have  reported 
adversely  iipon  the  candidate's  qualifications. 
However,  an  examination  of  the  records  of 
officers  retired  both  before  and  after  the  date  of 
the  Attorney  General's  opinion  discloses  that 
if  an  officer  was  found  physically,  but  not 
professionally,  mentally,  or  morally,  qualified 
and  consequently  not  recommended  for  promo- 
tion by  the  board  of  examiners,  he  was  placed 
on  the  retired  list  (citing  cases  of  Commodores 
Ellison,  Lockwood,  Totten,  Glasson;  Com- 
manders Arnold,  E.  W.  Henry,  Wm.  Gibson, 
Beaumont;  Ensign  F.  H.  Parker;  Asst.  Pay- 
master C.  E.  Boggs;  also  Capt.  T.  G.  Corbin, 
Commander  E.  E.  Stone,  and  Capt.  Egbert 
Thompson).  Further,  in  the  cases  of  officers 
who  were  found  not  physically  qualified  for 
promotion,  they  have  been  retired  under  the 
pro\dsions  of  section  4  of  the  act  of  April 
21,  1864  (now  sec.  1447,  R.  S.),  (citing  cases 
of  Capt.  Baldwin  and  Brasher,  and  Lieut. 
Commander  F.  H.  Sheppard).  Thus  the 
department's  practice  both  before  and  after  the 
Attorney  General's  opinion  was  to  retire  officers 
under  the  act  of  1864  when  they  had  been  found 
not  qualified  by  either,  and  not  necessarily  by 
both,  boards.     (File  26260-874,  June  3,  1910.) 

The  language  of  the  Court  of  Claims  in  the 
case  of  Capt.  Thompson  (18  Ct.  Cls.,  604,  611) 
is  at  variance  with  that  used  by  the  Attorney 
General,  as  the  court  says  that ' '  if  the  finding  of 
either  board  is  unfavorable,  the  provision  in 
section  4  is  peremptory  that  the  officer  shall  be 
placed  on  the  retired  list."  (File  26260-874, 
June  3,  1910.) 

A  commander  in  the  Na\'y  who  qualified 
physically,  as  -n^ll  as  mentally  and  morally, 
but  failed  professionally,  and  was  not,  there- 
fore, recommended  for  promotion  by  the  ex- 


695 


Sec.  1447. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


aniining  board,  although  so  recommended  by 
the  meilical  board,  shoidd  be  retired  under  the 
proNisions  of  section  1447,  Revised  Statutes. 
(File  20260-874,  June  3,  1910.  Compare  file 
262t)0-l:W2.  June  29,  1911,  page  5,  in  Avhich  it 
was  remarked  that,  "if  the  candidate  were 
found  by  both  the  medical  and  examining 
boards  to  be  not  qualified  for  promotion,  under 
section  1447  of  the  Revised  Statutes  he  was  to 
be  placed  on  the  retired  list.")  [See  in  this  con- 
nection section  1455,  Revised  Statutes,  which 
refers  to  the  retirement  of  an  officer ' '  on  account 
of  his  failure  to  be  recommended  by  an  examining 
board  for  promotion."] 

Irregularity  in  proceedings  cannot  be 
remedied  by  courts. — If  all  the  steps  taken 
in  the  proceedings  resulting  in  the  retirement 
of  an  officer  under  this  section  were  not  in  order 
and  warranted  by  the  statute,  the  Court  of 
Claims  would  have  no  power  to  review  them. 
(Thompson  v.  V.  S.,  18  Ct.  Cls.,  604,  611.) 

President  may  revoke  approval  and 
Bet  aside  proceedings  for  irregularity. — 
A  naval  officer  ha\'ing  appeared  before  an 
examining  board,  organized  and  conducted 
under  sections  1493-1505,  Revised  Statutes,  and 
the  examination  being  temporarily  suspended, 
was  granted  permission  to  go  home  and  to  be 
absent  until  notified  by  the  board  to  appear. 
He  failed  to  receive  this  notice  until  after  the 
examination,  which  was  resumed  during  his 
absence,  had  been  concluded.  The  proceed- 
ings and  findings  of  the  board  were  approved 
by  the  President  and  his  order  in  the  case  duly 
executed  by  the  retirement  of  the  officer  under 
this  section,  but  the  vacancy  created  by  such 
retirement  was  not  filled,  and  no  rights  of  any 
other  person  intervened:  Held,  that  the  act 
of  the  President  could  be  revoked  and  the 
ofiicer  allowed  a  rehearing.  (16  Op.  Atty. 
Gen.,  20.) 

An  officer  having  been  examined  by  a  board 
of  naval  surgeons,  and  placed  on  the  retired 
list  by  the  Secretary  of  the  Navy,  upon  the 
failure  of  that  board  to  recommend  him  for 
promotion,  but  not  having  been  examined  by  an 
"examining  board  for  j)romotion,"  as  required 
by  the  law  prior  to  promotion,  held,  that  the 
President  possesses  supervisory  action  over  the 
report  of  the  board  of  naval  surgeons,  and  may 
approve  or  disapprove  same,  notwithstanding 
the  action  of  the  Secretary  of  the  Navy.  (12 
Op.  Atty.  Gen.,  347.) 

Where  the  President  possesses  the  power  of 
review,  he  has  the  power  as  a  necessary  inci- 
dent to  the  right  of  review,  if  he  finds  that  an 
officer  has  not  had  such  an  examination  as  the 
law  declares  he  shall  have,  or,  in  other  words, 
if  the  proceedings  are  fatally  defective,  to  treat 
the  proceedings  of  the  board  as  a  nullity  and 
direct  an  examination  in  accordance  with  law. 
(27  Op.  Atty.  Gen.,  193,  201;  see  also  27  Op. 
Atty.  Gen.,  251. 

\Vhere  an  officer  was  found  by  a  board  of 
examination  to  be  physically  qualified  for 
promotion,  but  deficient  in  professional  quali- 
fications, and  it  afterwards  developed  that  he 
was,  at  the  time  of  his  examination,  suffering 
from  a  disability  incurred  in  the  line  of  duty 
which  disqualified  him  for  -promotion,  it  is 
within  the  power  of  the  Secretary  of  War,  rep- 


resenting the  President,  to  order  a  new  physical 
examination.     (27  Op.  Atty.  Gen.,  193.) 

Difference  between  examining  board 
for  promotion  and  retiring  board. — See 
21  Op.  Atty.  Gen.,  385,  noted  under  section 
1448,  "Physical  examination  for  promotion 
not  sufficient  for  retirement." 

Retirement  completed  by  appoint- 
ment of  successor. — The  act  of  placing  an 
officer  on  the  retired  list  under  this  section 
created  a  vacancy,  which  the  statute  [section 
1458,  Revised  Statutes]  required  the  President 
to  fill.  In  obedience  to  the  mandate  of  the  stat- 
ute, the  President  nominated  to  the  Senate  the 
ranking  commander  for  promotion  to  the  cap- 
taincy on  the  active  list  thus  made  vacant;  the 
Senate  gaveits  constitutional  assent  thereto,  and 
upon  his  appointment  the  new  appointee  from 
that  moment  became  one  of  the  limited  number 
of  captains  authorized  by  law  to  be  on  the  active 
list  of  the  Navy,  and  his  predecessor  became 
one  of  the  captains  authorized  by  law  to  be 
on  the  retired  list  of  the  Navy.  (Thompson  v. 
U.  S.,  18  Ct.  Cls.,  604,  612,  citing  Blake's  Case, 
103  U.  S.,  227,  noted  under  the  Constitution, 
Art.  II,  sec.  2,  clause  2,  under  "VIII.  Power  of 
Removal  *  *  *  Power  of  President  and 
Senate.") 

Oflicer  can  not  be  restored  to  active  list 
by  President. — See  note  to  section  1465, 
Revised  Statutes. 

Officer  not  mentally,  morally,  and  pro- 
fessionally qualified. — ^An  officer  was  found 
by  a  retiring  board  "incapacitated  from  active 
service,"  and  such  incapacity  was  "not  the 
result  of  an  incident  of  the  service."  He  was 
ordered  before  another  retiring  board,  which 
found  him  not  incapacitated  for  active  service. 
Thereupon  he  was  ordered  before  an  examining 
board  for  promotion.  This  board  reported 
that  he  had  "not  the  mental,  moral,  and  pro- 
fessional qualifications  to  perform  efficiently 
all  the  duties  of  a  naval  officer  in  a  higher  grade, 
and  we  do  not  recommend  him  for  promotion." 
The  President  approved  the  proceedings  and 
findings  of  the  examining  board,  and  he  was 
thereupon  retired  from  active  service.  Held, 
that  the  officer  was  not  entitled  to  a  reexamina- 
tion under  section  1505,  Revised  Statutes,  after 
a  period  of  suspension,  but  was  legally  retired 
as  not  recommended  for  promotion.  (Davis  v. 
U.  S.,  24  Ct.  Cls.,  442.  But  see  note  to  sec. 
1456,  R.  S.) 

Examining  board  is  quasi  judicial. — The 
examining  board  whose  failure  to  recommend 
for  promotion  causes  retirement  is  "quasi 
judicial."  (Thompson  v.  U.  S.,  18  Ct.  Cls., 
604,  615.) 

Approval  of  President  required. — The 
conclusions  of  any  military  comt,  board,  or 
commission  must,  before  being  carried  into 
execution,  have  the  approval  of  the  commander 
in  chief  or  some  one  representing  him .  Accord- 
ingly, although  the  law  in  a  particular  case 
may  not  expressly  provide  for  approval  of 
examining  boards  in  the  Army,  such  boards 
must  receive  the  approval  of  the  Secretary  of 
War,  whose  action  is  conclusively  presumed 
to  be  that  of  the  President,  in  order  to  be  valid 
and  effective.  It  is  not,  however,  essential 
that  this  approval  should  be  express  or  indi- 


596 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1447. 


cated  in  any  formal  language.  It  may  be 
indicated  by  merely  giving  effect  through  ap- 
propriate orders  to  the  findings  of  the  board. 
(27  Op.  Atty.  Gen.,  193;  see  also  sec.  1502, 
K.  S,  and  Jouett  v.  U.  S.,  28  Ct.Cls.,266.)_ 

Although  the  law  embodied  in  this  section 
did  not  expressly  provide  for  approval  by  the 
President  of  the  report  made  by  the  board  of 
naval  surgeons,  he  has  a  supervisory  power  over 
the  action  of  such  Ijoard  and  may  approve  or 
disapprove  same  notwithstanding  the  action 
taken  in  the  case  by  the  Secretary  of  the  Navy. 
(12  Op.  Atty.  Gen.,  347.) 

Pay  of  officer  retired  because  not  recom- 
mended for  promotion. — An  officer  retired 
because  not  recommended  for  promotion,  as  pro- 
^dded  by  this  section,  is  entitled  to  half  pay, 
as  provided  by  section  1588,  Revised  Statutes. 
(McChu-e  V.  U.  S.,  18  Ct.  Cls.,  347;  file  26260- 
874,  June  3,  1910;  but  see  case  of  Lieut.  Frank 
W.  Nichols,  noted  under  sec.  1448,  R.  S., 
"Physical  examination  for  promotion  not 
sufficient  for  retirement.") 

Retirement  of  officer  foiind  not  morally 
qualified  for  promotion. — In  the  case  of 
Pay  Inspector  John  H.  Stevenson,  the  exam- 
ining board  for  promotion  reported  as  follows: 
"We  are  satisfied  as  to  the  professional  abilities 
of  the  candidate.  His  methods  of  business  are 
shown  by  the  e^'idence  to  have  been  loose, 
reckless,  regardless  of  law,  and  defiant  of 
orders,  but  we  believe  his  conduct  is  not  shown 
to  have  been  influenced  by  a  desire  for  personal 
profit,  but  that,  from  mental  peculiarities  or 
temperament,  his  moral  sense  of  the  obligations 
of  law,  orders,  and  regulations  is  so  obtunded 
as  to  render  him  unfit  to  conduct  the  important 
duties  which  pertain  to  the  grade  in  the  Navy 
to  which  he  is  a  candidate  for  promotion. 
In  this  sense  we  consider  him,  as  stated  below, 
morally  unfit  for  promotion.  We  therefore 
decide  that  the  professional  fitness  of  the 
candidate  to  perform  the  duties  of  a  naval 
officer  at  sea  and  on  shore  in  the  next  higher 
grade  has  been  established,  but  not  the  mental 
and  moral  fitness,  and  we  therefore  do  not 
recommend  him  for  promotion." 

In  this  case,  the  Judge  Advocate  General,  in 
his  report  to  the  Secretary  of  the  Navy,  Septem- 
ber 11,  1893,  stated  in  part:  "The  vital  ques- 
tion, therefore,  is  as  to  whether  or  not  the 
disqualifying  cause  in  the  case  of  Mr.  Stevenson 
is  a  cause  '  arising  from  his  own  misconduct. ' 
I  am  of  opinion  that  such  cannot  properly  be 
said  to  be  the  case,  and  that,  inasmuch  as 
Mr.  Stevenson  has  been  found  to  be  both 
mentally  and  morally  incapacitated,  his  moral 
disqualification  being  the  result  of  his  mental 
incapacity ,  the  state  of  his  mind  may  properly 
be  considered  to  be  diseased,  and,  therefore, 
that  the  case  does  not  come  under  the  provi- 
sions of  the  act  of  August  5,  1882  [noted  under 
section  1456,  Revised  Statutes.].  *  *  *  lam 
of  opinion  that  the  provisions  of  this  section 
[1457,  Revised  Statutes]  properly  cover  the  case 
of  Pay  Inspector  Stevenson.  If  retired  in  ac- 
cordance therewith,  he  will  receive  one-half  of 
the  sea  pay  at  the  time  of  his  retirement  (S2,200) 
as  prescribed  by  section  1588  of  the  Revised 
Statutes." 

The  Secretary  of  the  Navy,  in  his  report  to 
the  President,  September  12,  1893,  stated  in 


part:  "  It  will  be  observed  that  this  finding  is 
peculiar.  The  decision  is  substantially  and 
formally  sufficient.  It  is  that  the  candidate 
does  not  possess  the  mental  and  moral  fitness 
required  for  promotion;  the  reasons  given, 
however,  are  that  'from  mental  peculiarities  or 
temperament  his  moral  sense  of  the  obligations 
of  law,  orders,  and  regulations,  is  so  obtunded 
as  to  render  him  unfit  to  conduct  the  important 
duties  which  pertain  to  the  grade  in  the  Navy 
to  which  he  is  a  candidate  for  promotion.' 
Carrying  out  what  seems  to  be  the  obvious 
purpose  of  this  finding,  the  president  of  the 
board,  Commodore  J.  G.  Walker,  on  behalf  of 
the  board,  called  upon  me  and  requested  that 
I  should  convey  to  you  the  wish  of  the  board 
that  Mr.  Stevenson  should  be  retired  under 
section  1447  of  the  Revised  Statutes,  and  not 
dismissed  imder  the  law  of  1882.  This  request 
appears  to  be  entirely  proper,  but  the  board 
having  found  the  candidate  morally  unfit,  the 
question  as  to  whether  he  should  be  retired  or 
dismissed  seems  to  be  one  entii'ely  for  the 
decision  of  the  President.  The  finding  of  the 
board  is,  however,  undoubtedly  the  basis  upon 
which  your  decision  is  to  be  founded.  You 
would  not  have,  as  I  conceive,  the  right  either 
to  retire  or  dismiss,  unless  the  board  had 
previously  found  the  unfitness  of  the  candidate. 
It  will  be  seen  from  the  opinion  of  the  Judge 
Advocate  General  of  the  Navy  that  he  recom- 
mends the  retiring  of  the  candidate  upon  half 
pay.  and  he  cites  a  precedent.  I  am  not  in- 
clined to  agree  with  that  opinion,  when  the 
board  finds  that  from  mental  peculiarities  or 
temperament  the  candidate's  moral  sense  of 
the  obligations  of  law  is  so  obtunded  as  to 
render  him  unfit  for  promotion.  This  seems  to 
be  setting  up  the  doctrine  of  moral  insanity, 
which,  as  I  understand  it,  the  courts  have 
refused  to  accept  as  a  defense  to  a  criminal 
charge.  *  *  *  Now  if  it  be  true  that  in 
cases  of  this  character  the  biu"den  of  proof  is 
upon  a  candidate  to  establish  his  mental  and 
moral  fitness,  and  if,  in  this  particular  case, 
moral  unfitness  has  been  established,  then  it 
seems  to  me  that  the  burden  is  also  upon  the 
candidate  to  establish  that  his  moral  unfitness 
is  not  the  result  of  his  own  misconduct.  Can 
one  be  morally  unfit  to  perform  the  duties  of  an 
officer  and  yet  not  be  responsible  for  such 
moral  unfitness?  If  a  coui't  of  law  in  a  criminal 
case  would  be  bound  to  hold  that  he  is  responsi- 
ble for  any  conduct  arising  from  such  moral 
obliquity,  could  it  be  contended  that  he  is  not 
responsible  for  the  state  of  moral  obliquity  into 
which  he  has  fallen?  I  fail  to  see  how  such  a 
conclusion  could  be  reached  and  therefore  have 
to  recommend  that  as  the  candidate  has  been 
shown  to  be  morally  unfit  for  promotion  he 
ought  to  be  dismissed  under  the  law  of  1882. 
The  precedent  cited  by  the  Judge  Advocate 
General  seems  to  be  nearly  in  point.  Without 
undertaking,  however,  to  distinguish  between 
this  case  and  that,  it  seems  to  me  sufficient  to 
say  that  such  a  precedent,  if  it  has  been  estab- 
lished, ought  not  to  be  followed.  It  is  certainly 
contrary  to  the  spirit  of  the  law  of  1882,  as  well 
as  to  what  seems  to  be  sound  policy,  to  lay  down 
as  a  rule  that  an  officer  who  is  morally  unfit  for 
promotion  is  nevertheless  entitled  to  be  paid 
by  the  Government  as  an  officer  of  the  Navy 


597 


Sec.  1448. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


durinc:  the  remainder  of  his  natural  life.  From 
my  readiiiii;  of  the  two  statutes  on  this  subject 
of  retirement,  above  cited,  I  am  of  opinion 
that  the  theory  upon  which  Congress  legislated 
was  that  officers  who,  without  fault  of  their  own , 
were  found  unfit  to  continue  in  active  service 
ought  to  be  provided  for  by  the  Government 
which  they  faithfully  served  up  to  the  time  of 
their  retirement.  I  cannot  believe  that  Con- 
'gress  ever  intended  to  continue  in  the  pay  of 
the  Government  those  who  are  shown  to  be 
morally  unfit  to  serve  that  Government.  There 
is  no  principle  of  public  policy  that  could 
justify  such  legislation,  and  I  submit  the  word- 
ing of  the  statute  does  not  warrant  the  conclu- 
sion that  Congress  ever  intended  any  such 
result." 


The  President's  action  in  the  above  case, 
September  25,  1893,  was  as  follows:  "The 
record,  proceedings,  and  findings  of  the  exam- 
ining board  in  the  case  of  Pay  Inspector 
John  H.  Stevenson,  a  candidate  for  promotion, 
are  hereby  approved  and  the  said  John  H. 
Stevenson  is  ordered  to  be  placed  upon  the 
retired  list  pursuant  to  the  provisions  of  section 
1447  of  the  Revised  Statutes.  The  retirement 
of  this  applicant  for  promotion  is  based  upon 
the  peculiar  findings  of  the  examining  board 
and  the  exceptional  circumstances  surrounding 
the  case.  The  determination  reached  must  not 
be  regarded  as  a  precedent  for  any  similar 
case  that  may  hereafter  arise." 

Compare  cases  noted  under  section  1456, 
Revised  Statutes;  see  also  note  to  section  1448, 
Revised  Statutes. 


Sec.  1448.  [Retiring  board.]  Whenever  any  officer,  on  being  ordered  to  per- 
form the  duties  appropriate  to  his  commission,  reports  himself  unable  to  com- 
ply with  such  order,  or  whenever,  in  the  judgment  of  the  President,  an  officer 
is  incapacitated  to  perform  the  duties  of  his  office,  the  President,  at  his  discre- 
tion, may  direct  the  Secretary  of  the  Navy  to  refer  the  case  of  such  officer  to  a 
board  of  not  more  than  nine  nor  less  than  five  commissioned  officers,  two- 
fifths  of  whom  shall  be  members  of  the  Medical  Corps  of  the  Navy.  Said  board, 
except  the  officers  taken  from  the  Medical  Corps,  shall  be  composed,  as  far  as 
may  be,  of  seniors  in  rank  to  the  officer  whose  disability  is  inquired  of. —  (3 
Aug.,  1861,  c.  42,  s.  23,  v.  12,  p.  291.) 

Acting  assistant  surgeons  not  eligible  for  retire- 
ment under  the  provisions  of  this  section. 
(See  note  to  sec.  1411,  R.  S.) 

For  citation  of  laws  relating  to  retirement  of 
specific  classes  of  officers,  see  notes  to 
sections  1443  and  1445,  Revised  Statutes; 
and  see  note  below,  "Retirement  of  war- 
rant officers." 

Officers  not  to  be  retired  without  hearing  before 
retiring  board,  except  in  certain  cases. 
(See  sec.  1455,  R.  S.) 

Officers  not  to  be  retired  for  misconduct.  (See 
sec.  1456,  R.  S.) 

Secretary   of  the    Navy  may  empower  com- 
manding officers  on  foreign  stations   to 
convene  retiring  boards.     (Act  Mar.  4, 
1917,  39  Stat.,  1171.) 
"Physical   incapacity"   is   defined   as   a 

condition,  bodily  or  mental,  which  unfits  at 

present,  or  is  Likely  to  unfit  in  the  near  future, 

the  officer  for  the  performance  of  his  duties. 

(21  Op.  Atty.  Gen.,  387,  quoting  Circular,  War 

Department,     Dec.   18,   1890,  relating  to    ex- 
aminations for  promotion;  see  also  sec.  1445, 

R.  S.,  relating  to  retirement  for  "physical  or 

mental"  disability.) 

An    oflScer    is    "permanently  incapac- 
itated"   when    his   disability   appears   to   be 

chronic  or  of  indefinite  future  duration;  his 

disability  is  designated  as  "permanent,"  just 

as  an  innkeeper  distinguishes  between  "per- 
manent" from  the  transients  among  his  guests. 

(21  Op.  Atty.  Gen.,  286.) 
Officer  must  be  altogether  incapable  of 

performing  his   duties,    and  not   merely 

incapable  of  performing  them  weU. — The 

incapacity  to  discharge  his  duties  contemplated 

by  the  statute  [Army  retirement  law]  is  not  an 


incapacity  to  discharge  them  as  well  as  they 
ought,  theoretically,  to  be  discharged  or  as 
well  as  they  are  discharged  by  officers  generally 
of  the  same  rank  and  intrusted  with  similar 
duties.  The  law  does  not  say  that  he  must  be 
incapable  of  performing  his  duties  well  but 
that  he  must  be  incapable  of  performing  them 
at  all,  or  in  other  words,  he  must  be  unable  to 
so  perform  them  as  to  reasonably  fulfill  the 
purpose  of  his  employment.  (27  Op.  Atty. 
Gen.,  14.) 

Peculiar  mental  temperament  sufficient 
basis  for  retirement. — An  officer  of  the  Navy 
was  retired  by  the  President  upon  the  following 
finding  of  a  retiring  board : 

"  1st.  That  in  their  judgment  the  physical 
condition  of  Paymaster  Robert  Burton  Rodney 
is  good,  but  that  his  peculiar  mental  tempera- 
ment incapacitates  him  from  active  service  in 
the  Navy  of  the  United  States. 

"2d.  That  said  temperament  of  Paymaster 
Rodney,  according  to  the  evidence  laid  before 
the  board,  develops  itself  in  an  entire  disre- 
gard of  the  laws,  regulations,  customs,  and  pro- 
prieties of  the  service,  and  has  been  manifested 
persistently  while  said  Rodney  was  attached  to 
the  North  Atlantic  Fleet,  in  language  and  con- 
duct to  the  subversion  of  good  order  and  dis- 
cipline, and  proceeds,  in  the  opinion  of  the 
board,  in  part  from  fanaticism  and  in  part  from 
the  groundless  belief  that  he  is  a  victim  of  per- 
secution. 

"  In  the  judgment  of  the  board,  the  inca- 
pacity of  Paymaster  Robert  Burton  Rodney 
results  neither  from  long  and  faithful  service, 
from  wounds  or  injury  received  in  the  line  of 
duty,  from  sickness  or  exposure,  or  from  any 
other  incident  of  service. 


698 


The  Navy. 


Ft.  2.  REWSED  STATUTES. 


Sec.  1448. 


"The  board  are  impressed  with  the  belief 
that  the  tendency  to  misconduct  under  which 
Mr.  Rodney  labors  will  be  re^'ived  whenever 
his  association  with  the  Navy  shall  be  renewed. 

"  The  board  are  unable  to  trace  the  mental 
incompetency  of  Pajinaster  Rodney  to  any 
special  cause,  but  believe  it  to  be  inherent, 
and  therefore  can  only  recommend  that  he  be 
removed  from  the  active  list  of  officers  of  the 
Navy." 

The  sole  objection  iirged  by  Paymaster 
Rodney  against  the  validity  of  his  retirement 
iipon  the  above  finding  is  that  it  was  in  \T.ola- 
tion  of  the  sixth  section  of  the  act  of  July  15, 
1870,  chapter  295  [section  1456,  Revised  Stat- 
utes], which  forbids  the  retirement  of  an  officer 
"because  of  misconduct." 

The  above  finding  of  the  board  does  not 
ground  the  incapacity  for  active  ser\-ice  upon 
misconduct,  but  upon  the  peculiarity  of  his 
mental  temperament.  His  language  and  con- 
duct, etc.,  appear  to  be  assigned  only  as  facts 
and  circumstances  indicative  of  mental  con- 
dition. The  circumstances  alluded  to  are  a]> 
parently  set  forth  by  the  board  only  as  outward 
manifestations  of  such  temperament.  This 
peculiarity  of  temperament  is  described  in  the 
last  paragraph  of  the  finding  as  "mental  in- 
competency." 

The  Preadent  having  concurred  in  the  find- 
ing of  the  board  and  thereupon  directed  the  re- 
tirement of  Paymaster  Rodney  from  acti-\-e 
service,  the  latter  must  be  deemed  to  have  been 
placed  on  the  retii-ed  list,  not  because  of  mis- 
conduct, but  because  of  incapacity  for  active 
service  arising  from  the  peculiarity  of  his  men- 
tal temperament  or  inherent  mental  incom- 
petency, as  found  by  the  board. 

The  act  of  August  3, 1861,  section  23,  chapter 
42  [now  embodied  in  section  1448,  Re\dsed 
Statutes],  provides  that  whenever  in  the  judg- 
ment of  the  President  an  officer  of  the  Nai-y 
shall  be  "in  any  way,"  incapacitated  from  per- 
forming the  duties  of  his  office,  etc.  The  offi- 
cer's retirement  was,  upon  the  facts  stated, 
validlv  made  under  this  section.  (15  Op.  Atty. 
Gen.,  446.) 

An  officer  of  the  Navy  having  been  retired 
for  a  peculiar  mental  temperament  which  in- 
capacitated him  for  properly  performing  duties 
on  the  active  list,  the  findings  of  the  retiring 
board  are  not  subject  tore\iew  by  the  account- 
ing officers,  and  his  retirement  was  authorized 
by  law.     (Dig.   Comp.   Dec,  493.) 

Compare  note  to  section  1447,  Revised  Stat- 
utes, "Retirement  of  officer  found  not  morally 
qualified  for  promotion." 

Temperamental  uniitness  m.u8t  am.ount 
to  actual  incapacity  or  retirement  not 
authorized. — ^The  retirement  laws,  while 
making  no  attempt  to  fix  a  standard  of  official 
usefulness,  sound  judgment,  discretion,  or 
good  sense,  good  habits,  agreeableness,  good 
manners,  self-control,  or  courtesy,  make  one 
criterion,  and  one  only,  for  the  compulsory 
retirement  of  an  officer,  namely,  that  he  has 
become  incapable  of  performing  the  duties  of 
his  office.  All  other  subjects  of  criticism  in  an 
officer  must  be  either  dealt  with  in  a  dis- 
ciplinary way,  or  borne  with  as  unfortunate 
incidents  of  the  service  due  to  imperfect  human 


nature.  (27  Op.  Atty.  Gen.,  162,  afiirming  27 
Op.  Atty.  Gen.,  14.) 

Retiring  boards  have  nothing  to  do  with 
such  considerations  as  that  the  officer  would,  by 
seniority,  soon  become  due  for  promotion, 
which  would  place  him  in  a  position  where  his 
infirmities  of  temper,  disposition,  and  other- 
wise, would  be  of  great  detriment  to  the  service. 
Objections  to  the  promotion  of  an  officer  con- 
stitute no  ground  for  retiring  him  from  the 
office  he  now  holds,  unless  resulting  in  the  in- 
capacity contemplated  by  the  law.  (27  Op. 
Atty.  Gen.,  162,  affirming  27  Op.  Atty.  Gen., 
14;  compare  sec.  1447,  R.  S.) 

Question  presented  whether  an  officer  of  the 
Army  may  be  retired  when  found  by  retiring 
board  to  be  "permanently  incapable  of  per- 
forming the  duties  of  his  office,  such  incapacity 
being  temperamental  in  character,  and  the  re- 
sult of  the  operation  of  *  *  *  mental  bias 
or  oversensiti-\-eness  of  such  degree  and  charac- 
ter as  to  render  an  officer  incompetent  to  ex- 
ercise sound  judgment  or  discretion,  and  as  to 
create  a  marked  tendency  toward  unjustifiably 
questioning  the  justice  or  motives  of  the  acts  of 
his  superior  officers  touching  himself  person- 
ally, sometimes  carried  to  an  extent  bordering 
on  chronic  insubordinarion;  marked  lack  of 
capacity  to  entertain  sound  views  as  to  his  re- 
lations and  obligations  to  other  persons  in  the 
military'  service,  resulting  in  a  quarrelsome, 
hypercritical,  and  querulous  disposition." 
Held,  that  an  important  distinction  must  be 
observed  between  actual  incapacity  and  the 
cause  or  causes  wMch  produced  it.  No  officer 
can  be  compulsorily  retired  under  these  sec- 
tions [1245-1252,  R.  S.,  relating  to  the  Army] 
because  of  any  or  all  of  the  infirmities  peculi- 
arities, or  characteristics  mentioned.  He  may 
have  all  of  these  and  yet  be  capable  of  perform- 
ing his  official  duties  if  he  desires  to  do  so;  and 
the  law  has  not  said  that  he  may  be  retired  for 
any  of  these.  But  if  from  these  or  from  any 
other  causes,  he  has  become  incapable  of  per- 
forming the  duties  of  his  office,  he  may  be  re- 
tii-ed  for  that,  but  not  for  the  causes  which 
produced  the  incapacity.  (27  Op.  Atty 
Gen.,  162.) 

An  officer  of  the  Army  was  found  by  a  retiring 
board  to  be  "incapable  of  performing  the  duties 
of  his  office,"  such  incapacity  being  the  result 
of  "iniirniity  of  temper,  of  a  graduafbut  serious 
loss  of  self-control,  of  impatience  or  irritability 
while  exercising  the  functions  of  his  office  and 
in  dealing  with  the  officers  and  enlisted  men  in 
his  command,  of  physical  or  mental  deteriora- 
tion due  to  indolence,  excesses  in  eating  and 
drinking,  to  impairment  of  \T.gor,  or  to  indeci- 
sion and  want  of  alertness  in  the  performance 
of  the  duties  with  which  he  is  habitually 
charged  by  law  and  regulations."  Held,  that 
a  person  ha\ing  the  infirmities  of  temper  and 
the  mental  and  bodily  characteristics  described, 
might  readily  be  a  veiy  imdesii-able  superior, 
colleague,  or  subordinate,  and  might  severely 
tax  the  patience  of  other  members  of  the  serv- 
ice necessarily  brought  into  contact  with  him 
in  the  discharge  of  "their  military  duties,  but 
it  would  not  follow  from  these  facta  that  he  was 
incapable  of  discharging  his  duties.  A  more 
reasonable  inference  would  be,  perhaps,  that 


699 


Sec.  1448. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


he  was  unwilling  to  discharge  them  properly, 
and  therefore  that  he  was  a  suitable  subject  for 
the  appropriate  military  discipline.  Of  course, 
if  a  process  of  mental  deterioration,  due  to  the 
causes  above-mentioned,  had  culminated  in  a 
mild  form  of  insanity  or  if  excessive  self-indul- 
gence and  disregard  of  the  laws  of  health  have 
produced  such  maladies  as  make  it  impossible  for 
the  officer  properly  to  discharge  his  duties,  the 
incapacity  justifying  his  retirement  would  exist 
and  the  causes  leading  to  such  incapacity  would 
be  immaterial  [compare,  section  1456,  Revised 
Statutes];  but  except  in  so  extreme  a  case,  the 
officer  midit  have  all  the  infirmities  and  un- 
desirable nabits  mentioned,  and  yet  not  be 
incapable  of  dischai-ging  his  duties  in  the  sense 
contemplated  by  the  law  as  justifying  his 
retirement.     (27  Op.  Atty.  Gen.,  17.) 

An  officer  of  the  ;Marine  Corps  was  ioxmd 
"incapacitated  for  active  service  by  reason  of 
excessive  nervous  irritability,  and  that  his 
incapacity  is  the  result  of  an  incident  of  the 
ser^•ice."  The  finding  of  the  board  was  disap- 
proved by  the  President,  upon  recommendation 
of  the  Secretary  of  the  Navy,  who  stated:  "The 
report  of  the  board  does  not  show  a  finding  of 
insanity  or  even  of  neurasthenia,  but  refers  to 
this  officer  as  incapacitated  by  reason  of  'ex- 
cessive nervous  ii-ritability.'  There  is  no  evi- 
dence in  the  record  of  any  specific  injury.  The 
department  considers  that  the  retii'ement  of  so 
young  an  officer  in  the  line  of  duty  for  the 
reason  given  by  the  board  in  this  case  would  be 
an  abuse  of  the  liberal  retii-ement  privileges 
which  Congress  intended  primarily  for  those 
either  injured  in  the  line  of  duty  or  w^ho,  by 
reason  of  long  and  faithful  service,  are  entitled 
to  especial  consideration."  (File  26253-256, 
Jan.  9,  1913.  As  to  retirement  of  Marine  offi- 
cers, see  sec.  1622,  R.  S.) 

Actual  incapacity  only  test;  cause 
not  important  except  incidentally. — The 
grounds  for  compulsory  retirement  should  be 
confined  to  cases  of  actual  inability  to  perform 
the  duties  of  the  office,  no  matter  what  the  cause 
of  the  inability.     (27  Op.  Atty.  Gen.,  162.) 

It  is  with  the  actual  incapacity  of  the  officer 
that  these  sections  [1245-1252,  Revised  Stat- 
utes, relating  to  Army]  deal,  and  not  with  its 
cause  or  causes,  except  in  determining  what 
shall  be  done  in  case  the  officer  is  found 
incapacitated.     (27  Op.  Atty.  Gen.,  162.) 

An  officer,  found  by  a  retiring^  board  duly 
organized  and  convened  to  be  "incapable  of 
performing  the  duties  of  his  office, ' '  may  be  and 
ought  to  be  retired  in  accordance  wdth  the  pro- 
visions of  sections  1245-1252,  ReAdsed  Statutes, 
without  regard  to  the  causes  which  may  have 
led  to  eucn  incapacity  on  his  part;  but  to  be 
"incapable  "  in  the  language  of  the  law  he  must 
be  either  no  longer  responsible  for  his  own 
actions  or  subject  to  infirmities  or  disabilities 
which  make  the  reasonable  fulfillment  of  his 
military  duties  impossible  for  him,  notwith- 
standing an  earnest  desire  and  firm  pm-pose  on 
his  part  to  fully  discharge  them.  (27  Op.  Atty. 
Gen.,  14.) 

An  officer  of  the  Army  could  not  be  legally 
retired  under  the  provisions  of  law  because  he 
frequently  or  even  habitually  became  intoxi- 
cated, although  such  intoxication  might,  while 
it  lasted,   incapacitate  him   to  discharge  his 


duties;  instead,  he  would  be  properly  subject 
to  the  pimishment  prescribed  by  military  law 
as  administered  by  coiu"ts-martial.  If,  how- 
ever, as  a  result  of  such  excess,  his  bodily  and 
mental  faculties  had  become  seriously  and  per- 
manently impaired,  then,  even  if  the  habits  of 
intemperance  had  ceased,  he  would  be  properly 
subject  to  retii-ement  under  the  pro\T.sions  of 
section  1252,  Revised  Statutes.  (27  Op.  Atty. 
Gen.,  14.) 

It  has  been  held  by  the  War  Department  that 
an  oflicer  may  legally  be  retired  by  reason  of  an 
incapacity  resulting  from  habitual  drunkenness; 
that  the  law  contemplated  an  existing  and  not  a 
piirely  prospective  and  contingent  incapacity; 
and  that  an  inquiry  into  an  officer's  general 
efficiency  could  be  pertinent  only  in  so  far  as  it 
could  be  regarded  as  going  to  show  that  his  inef- 
ficiency, if  found,  was  the  result  of  an  impair- 
ment of  health;  that  the  cause  of  incapacity 
intended  in  section  1249,  Re\ised  Statutes,  was 
a  physical  cause,  that  moral  obliquity  was  not 
had  in  view,  and  that  the  matter  of  financial 
integrity  of  the  officer  was  beyond  the  jurisdic- 
tion of  the  board;  accordingly,  that  the  board 
was  not  authorized  to  recommend  the  retire- 
ment of  an  officer  because  he  did  not  pay  his 
debts;  and  that  the  inability  of  a  disbursing 
officer  to  furnish  a  bond  when  duly  required  to 
do  so  was  not  sufficient  ground  for  his  retire- 
ment. These  opinions  of  the  War  Department 
are  consistent  with  the  principles  which  must 
determine  when  an  officer  is  incapable  of  per- 
forming the  duties  of  his  office  within  the  mean- 
ing of  the  retiring  law.  (27  Op.  Atty.  Gen., 
14.) 

Composition  of  board. — The  intent  of  the 
act  is  to  cause  disabled  officers  to  be  retired  by 
a  board  composed  of  commissioned  officers  of 
their  own  branch  of  the  service.  The  clause 
which  requires  that  the  board,  except  those 
taken  from  the  medical  staff,  shall  be  composed 
as  far  as  may  be,  of  officers  "senior  in  rank "'  to 
the  officer  whose  disability  is  to  be  tried,  im- 
plies that  the  board  is  to  consist  of  commissioned 
officers  in  his  own  line  of  service;  for  an  officer 
of  one  branch  of  service  can  not  with  accuracy 
be  called  senior  in  rank  to  an  officer  of  another 
branch.  A  major  in  the  Army  is  no  more  senior 
to  a  captain  of  Marines  than  he  is  to  a  captain  in 
the  Navy.  The  term  in  its  military  sense  is 
applicable  only  to  relatively  higher  grades  of 
the  same  service,  and  its  use  othei-wise  would 
create  confusion.  (10  Op.  Atty.  Gen.,  116, 
holding  that  the  act  of  Aug.  3,  1861,  sec.  17, 
chap.  42,  does  not  authorize  the  Secretary  of 
War  or  the  Secretary  of  the  Navy  to  assemble  a 
mixed  board  of  Army  and  Marine  officers  for 
inquiry  into  the  cases  of  disabled  officers  of  the 
Army  and  of  the  Marine  Corps;  that  the  Marine 
Corps  is  at  all  times  subject  to  the  laws  and  reg- 
ulations established  for  the  better  government 
of  the  Navy,  except  when  detached  for  service 
with  the  Army;  and,  accordingly,  that  the 
medical  officers  of  any  board  assembled  by  the 
Secretary  of  the  Navy  to  inquire  into  the  cases 
of  disabled  Marine  officers  must  be  taken  from 
the  surgeons  of  the  Navy.  See  sec.  1623,  R.  S., 
as  to  composition  of  retiring  boards  for  Marine 
officers;  and  see  in  this  connection  Brown  v. 
U.  S.,  41  Ct.  Cls.,  275,  affirmed  206  U.  S., 
240.) 


600 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1448. 


Officer  to  be  ordered  before  retiring 
board  immediately  upon  development  of 
incapacity. — ''When  any  officer  on  the  active 
list  becomes  physically  incapacitated  to  per- 
form the  duties  of  his  office,  and  the  probable 
fiiture  duration  of  such  incapacity  is  permanent 
or  indefinite,  he  will  immediately  be  ordered 
before  a  retiring  board,  and,  pending  final 
action  upon  the  question  of  his  retirement,  will 
not  be  examined  for  promotion.  The  fore- 
going shall  not  apply  to  the  case  of  an  officer 
whose  physical  incapacity  develops  after  he 
has  become  due  for  promotion,  and  who  may, 
under  such  circumstances,  be  examined  phys- 
ically by  a  board  of  medical  examiners  before 
being  ordered  before  a  retiring  board. ' '  (Naval 
Courts  and  Boards,  1917,  sec.  679,  superseding 
Art.  R-331  (5),  Navy  Regs.,  1913,  C.  N.  R.  7, 
Sept.  15,  1916.) 

Physical  examination  for  promotion 
not  sufficient  for  retirement. — An  officer 
of  the  Army  was  examined  for  promotion  and 
found  incapacitated  for  active  service  on  ac- 
count of  certain  physical  disabilities;  this 
finding  was  approved  by  the  Surgeon  General 
and  by  the  Major  General  Commanding  the 
Army,  and  by  the  Acting  Secretary  of  War. 
The  officer  was  thereupon  notified  that  he 
would  be  retired  at  the  proper  time,  and  was 
granted  sick  leave  of  absence  until  further 
orders.  Thereafter  he  applied  for  reexamina- 
tion, and  the  action  of  the  Acting  Secretary  of 
War  approving  the  finding  of  the  examining 
board  was  canceled  by  the  Secretary  of  War. 
It  was  contended  that  the  examination  when 
approved  by  the  Acting  Secretary  of  War  be- 
came final  and  conclusive,  and  that  no  power 
or  authority  existed  in  the  Secretary  of  W^ar 
to  direct  or  permit  a  reexamination,  as  the  act 
of  October  1,  1890  (26  Stat.,  562),  provides  with 
reference  to  the  examination  of  Army  officers 
for  promotion  "that  should  an  officer  fail  in 
his  physical  examination  and  be  found  inca- 
pacitated for  service  by  reason  of  physical  dis- 
ability contracted  in  line  of  duty,  he  shall  be 
retired  with  the  rank  to  which  his  seniority  entitled 
him  to  be  promoted."  Held,  this  act  was  not 
intended  to  provide  for  the  retirement  of  offi- 
cers from  the  Army,  but  merely  to  fix  the  rank 
of  officers  and  regulate  promotions.  The  phrase 
italicized  plainly  is  not  a  mandatory  provision 
for  the  retirement  of  the  disabled  officer,  but 
for  the  purpose  of  fixing  the  rank  with  which 
he  should  be  retired.     (21  Op.  Atty.  Gen.,  385.) 

Under  the  laws  [sections  1250, 1251]  regulating 
retirements  in  the  Army,  no  officer  can  be 
retired  from  the  Army  upon  the  report  of  any 
board,  even  if  such  report  be  approved  by  the 
Secretary  of  War,  except  it  '"is  approved  by 
the  President."     (21  Op.  Atty.  Gen.,  385.) 

It  is  true  that  the  physical  examination  of 
an  officer  who  is  under  examination  for  promo- 
tion may  be  the  same  in  its  character  and 
extent  as  the  physical  examination  of  an  officer 
who  is  under  examination  for  retirement. 
Nevertheless,  a  board  constituted  as  a  board  of 
examination  for  promotion  can  not  be  invested 
with  the  power  of  a  retiring  board,  which  the 
law  requires  to  be  differently  constituted. 
(21  Op.  Atty.  Gen.,  385.) 

The  physical  examination  to  which  the 
officer  was  subjected  in  the  above-mentioned 


case  was  not  such  an  examination  as  required 
by  law  for  the  retirement  of  an  officer  from 
active  service;  and  he  may  be  allowed  a  re- 
examination bv  the  Secretarv  of  War.  (21  Op. 
Atty.  Gen.,  385.) 

The  officer  was  notified  that  he  would  be 
retired  at  the  proper  time;  but  he  could  not 
be  retired  without  the  approval  of  the  Presi- 
dent; and  even  if  the  action  of  the  examining 
board  were  to  be  regarded  and  treated  as  that 
of  a  retiring  board,  still  it  would  be  inoperative 
to  effect  his  retirement  until  approved  by  the 
President.     (21  Op.  Atty.  Gen.,  385.) 

The  Attorney  General's  opinion  (21  Op. 
Atty.  Gen.,  385)  applies  with  equal  force  to  the 
provisions  in  the  act  of  March  4,  1911  (36  Stat., 
1267,)  with  reference  to  rank  on  retirement  of 
officers  of  the  Navy  who  fail  physically  for 
promotion.  Accordingly,  in  such  case,  the 
officer  should  be  ordered  before  a  naval  retiring 
board  and  to  transfer  him  to  the  retired  list 
without  such  further  examination  would  be 
without  authority  of  law.  (File  26260-1732:1, 
Apr.  25,  1912.)  The  clause  in  the  Navy  law 
of  March  4, 1911,  is  substantially  the  same  as  the 
pro\'ision  in  the  Army  act  of  October  1,  1890 
(26  Stat.,  562),  and  should  be  construed  in  con- 
nection with  the  precedents  established  in 
the  Army  during  the  twenty  years  that  its 
statute  was  in  force  prior  to  the  enactment  of 
similar  legislation  for  the  Navy.  (File  26253- 
200:1,    Feb.    17,    1912.) 

Under  the  act  of  October  1,  1890  (26  Stat.,  562, 
sec.  3),  providing  that  an  Army  officer  who 
fails  in  his  physical  examination  for  promotion 
by  reason  of  disability  contracted  in  line  of 
duty  "shall  be  retired  with  the  rank  to  which 
his  seniority  entitled  him  to  be  promoted," 
held  that  an  Army  officer  who  was  not  exam- 
ined for  promotion  but  was  f  ound  by  a  retiring 
board  incapacitated  in  line  of  duty,  wliich 
finding  was  approved  by  the  President,  was 
entitled  to  the  retired  pay  of  the  next  higher 
rank,  although  the  War  Department  refused 
to  recognize  him  as  holding  that  rank.  "It 
seems  to  the  court  that  the  finding  of  the  retir- 
ing board  is  the  necessary  equivalent  of  the 
only  finding  that  could  have  been  made  by 
the  board  for  promotion."  (Cloud  v.  U.  S., 
43  Ct.  Cls.,  69.) 

An  officer  was  found  mentally  but  not 
physically,  morally,  or  professionally  quali- 
fied for  promotion.  The  President's  action, 
June  21,  1894,  was  as  follows:  "The  findings  of 
the  boards  in  this  case  are  disapproved,  except 
the  report  and  findings  of  the  board  of  medical 
examiners  dated  April  2, 1894,  which  are  hereby 
approved,  and  it  appearing  that  the  disability 
of  Lieutenant  Frank  W.  Nichols  is  due  to  sick- 
ness incurred  in  the  line  of  duty,  he  is  retired 
^\'ith  seventy-five  per  cent  of  the  sea  pay  of  the 
rank  now  held  by  liim."  (But  see  note  to 
sec.  1447,  R.  S.,  "Pay  of  officer  retired  because 
not  recommended  for  promotion.") 

Compare  cases  noted  under  section  1447, 
Revised  Statutes. 

Irregularity  in  proceedings. — After  a 
retired  naval  officer  has,  during  the  remainder 
of  his  life,  acquiesced  in  the  proceedings  of  the 
retiring  board,  it  does  not  Lie  ^vdth  liis  adminis- 
tratrix to  object  to  them  for  a  mere  irregu- 
larity.    (Brown  v.  U.  S.,  113  U.  S.,  568.) 


601 


Sec.  1448. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


The  action  of  a  board  organized  under  the 
act  of  1861  can  only  be  valid  as  it  accords  with 
the  law  of  its  creation.  From  that  law  alone 
it  must  draw  the  breath  of  life.  If,  therefore, 
it  is  constituted  without  the  direct  authority 
of  that  law  or  In  \'iolation  of  its  pro\'isions  the 
validity  of  its  action  would  be  open  to  very 
serious  future  question.  (10  Op.  Atty.  Gen., 
116.) 

See  also  Thompson  v.  U.  S.  (18  Ct.  Cls.,  604, 
611),  noted  under  section  1447,  Revised  Statutes. 

Retirement  for  disability  a  "benefit" 
to  officers.— The  act  of  June  24,  1910  (36  Stat., 
600 ),  pro\aded  that  "all  paymasters'  clerks 
shall,  while  holding  appointment  in  accord- 
ance with  law,  receive  the  same  pay  and 
allowances  and  have  the  same  rights  of  retire- 
ment as  warrant  officers  of  like  length  of  service 
in  the  Navy. "  If  a  paymaster's  clerk  is  subject 
to  retirement  for  physical  disability  it  must  be 
because  this  provision  has  so  extended  section 
1453,  Re\ased  Statutes,  as  to  make  it  applicable 
to  paymasters'  clerks.  Held  that  retirement 
for  physical  disability  is  one  of  the  "rights" 
of  retirement  extended  to  paymasters'  clerks 
by  this  statute  and  accordingly  that  a  pay- 
master's clerk  is  entitled  to  be  retired  under 
the  provisions  of  section  1453,  Revised  Statutes 
(28  Op.  Atty.  Gen.,  417.) 

It  can  not  correctly  be  said  that  section 
1453  pro\'ides  for  a  compulsory  retirement  and 
therefore  is  not  extended  to  paymasters'  clerks 
under  the  provisions  giving  them  the  "rights" 
of  retirement  possessed  by  warrant  officers. 
It  is  both  the  right  and  the  peremptory  duty 
of  the  Government  to  retire  an  officer  under 
the  conditions  mentioned  in  section  1453. 
On  the  other  hand,  it  is  the  right  of  the  officer 
to  be  retired  under  the  same  conditions. 
Whether  retirement  may  be  beneficial  to  him 
or  not  has  notiiing  to  do  with  his  right  of  retire- 
ment and  can  only  influence  his  determination 
as  to  whether  or  not  he  will  enforce  his  right 
should  the  Government  refuse  or  fail  to  carry 
out  the  mandate  of  the  law.  (28  Op.  Atty. 
Gen.,  417.) 

It  is  conceded  that  section  1453,  Revised 
Statutes,  would  be  very  beneficial  to  paymas- 
ters' clerks,  much  more  so,  in  fact,  than  to 
warrant  officers,  because,  if  incapacitated  for 
service,  their  appointments  may  be  revoked 
and  they  be  dismissed  from  the  service,  which 
can  not  be  done  with  a  warrant  officer.  That 
such  course  would  be  pursued  goes  without 
saying,  as  the  Na\^  Department  can  not  rely 
upon  the  labor  of  those  who  are  wholly  incapaci- 
tated for  service.  Therefore  the  protection 
and  benefit  of  section  1453  ought  to  be  extended 
to  these  diseased  and  helpless  officials  if  any 
reasonable  interpretation  of  the  act  of  June 
24,  1910,  will  permit  this  to  be  done.  (28  Op. 
Atty.  Gen.,  417.) 

That   retirement   for   disability   under   this 
section  is   "compulsory,"   see   27    Op     Atty 
Gen.,  162,  164,  166. 

As  to  retirement  of  pav  clerks  in  the  Navy, 
see  act  of  March  3,  1915(38  Stat.,  942); and  see 
note  to  section  1386,  Re\'i8ed  Statutes. 


Retirement  of  warrant  officers. — A  war- 
rant officer  was  retired  on  furlough  pay,  for  dis- 
ability not  incident  to  the  service  (see  sec. 
1454,  R.  S.);  he  acquiesced  in  such  retirement, 
and  drew  retired  pay  thereunder  until  his 
death.  Thereafter  his  widow  brought  suit 
against  the  United  States  to  recover  the  differ- 
ence between  retired  pay  and  active-duty  pay 
on  the  ground  that  his  retirement  was  illegal, 
there  being  no  law  providing  for  the  retirement 
of  warrant  officers  on  account  of  physical  dis- 
ability, and  the  act  of  August  3,  1861,  section 
23  (12  Stat.,  291)  [now  embodied  in  section  1448, 
Revised  Statutes],  being  claimed  to  apply  only 
to  commissioned  officers.  "It  must  be  con- 
ceded that  were  the  question  a  new  one,  the 
true  construction  of  the  section  would  be  open 
to  doubt.  But  the  findings  of  the  Court  of 
Claims  shf)W  that  soon  after  the  enactment  of 
the  act  the  President  and  the  Navy  Department 
construed  the  section  to  include  warrant  as  well 
as  commissioned  officers  and  they  have  since 
that  time  imiformly  adhered  to  that  construc- 
tion, and  that  under  its  provisions  large 
numbers  of  warrant  officers  have  been  retired. 
This  contemporaneous  and  uniform  interpreta- 
tion is  entitled  to  weight  in  the  construction  of 
the  law  and  in  a  case  of  doubt  ought  to  turn  the 
scale"  (citing  Edwards  v.  Darby,  12  \Mieat., 
206;  Atkins  v.  Disintegrating  Co.,  18  Wall.,  272, 
301;  Smythe  v.  Fiske,  23  Wall.,  374,  382;  U.  S. 
V.  Pugh;  99  U.  S.,  265;  U.  S.  v.  Moore,  95  U.  S., 
760,  763;  U.  S.  -y.  State  Bank  of  North  Carolina, 
6  Pet.,  29;  U.  S.  v.  Alexander,  12  Wall.,  177; 
Peabody  v.  Stark,  16  Wall.,  240;  and  Hahn  v. 
U.  S.,  107  U.  S.,  402).  "These  authorities 
justify  us  in  adhering  to  the  construction  of  the 
law  under  consideration  adopted  by  the 
executive  department  of  the  Government,  and 
are  conclusive  against  the  contention  of  appel- 
lant, that  section  23  of  the  act  of  August  3, 1861, 
did  not  apply  to  warrant  officers."  (Brown  v. 
U.  S.,  113  U.  S.,  568,  afiirming  18  Ct.  Cls.,  537.) 

Pajmiasters'  clerks,  in  reference  to  retire- 
ment are  placed  in  preciselv  th.e  same  condition 
by  the  act  of  June  24,  1910  (36  Stat.,  606),  as 
warrant  officers,  and  are  entitled  to  be  retired 
under  the  provisions  of  section  1453,  Revised 
Statutes.  (280p.  Atty.  Gen., 417.  See  above, 
"Retirement  for  disability  a  'benefit'  to  offi- 
cers." Pay  clerks  are  now  warrant  officers  in 
the  Navy  by  the  terms  of  act  Mar.  3,  1915, 
38  Stat.,  942.) 

Dental  surgeons,  probationary. — The 
provisions  of  this  section  have  been  adminis- 
tratively applied  to  a  dental  surgeon  appointed 
by  the  President  with  the  advice  and  consent 
of  the  Senate,  under  the  act  of  August  29,  1916 
(39  Stat.,  573),  while  serving  his  probationary 
period  of  two  years  as  required  by  said  act, 
which  further  provided  that  such  appoint- 
ments "may  be  revoked  at  any  time  during 
the  probationary  period  by  the  President." 
(See  file  26253-550,  Feb.  18,  1918;  see  also  note 
to  sec.  1454,  R.  S.) 

Acting  chaplains  who  fail  physically  upon 
examination  for  appointment  as  chaplains  are 
not  eligible  for  retirement.  (File  15721-22:1, 
Mar.  8,  1922. 


602 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1451. 


Sec.  1449.  [Powers  and  duties  of  retiring  board.]  Said  retiring-board  shall 
be  authorized  to  inquire  into  and  determine  the  facts  touching  the  nature  and 
occasion  of  the  disability  of  any  such  officer,  and  shall  have  such  powers  of  a 
court-martial  and  of  a  court  of  inquiry  as  may  be  necessary. — (3  Aug.,  1861, 
c.  42,  s.  17,  V.  12,  p.  290.) 


Courts-martial  have  power  to  administer  oaths 
to  witnesses  (sec.  1624,  R.  S.,  art.  41),  to 
imprison  witnesses  for  contempts  (sec. 
1624,  R.  S.,  art.  42),  to  compel  attendance 
of  civilian  witnesses  (act  Feb.  16,  1909, 
sec.  11,  35  Stat.,  621),  to  institute  proceed- 
ings in  civil  courts  against  witnesses  who 
refuse  to  appear  or  testify  (act  Feb.  16, 
1909,  sec.  12,  35  Stat.,  622),  and  to  receive 
depositions  in  evidence  (act  Feb.  16, 
1909,  sec.  16,  35  Stat.,  622). 

"Courts  of  inquiry  shall  have  power  to  sum- 
mon witnesses,  administer  oaths,  and  pun- 
ish contempts,  in  the  same  manner  as 
coiu-ts-martial."     (Sec.  1624,  R.  S.,  art.  57.) 


In  trials  by  court-martial  and  proceedings  be- 
fore courts  of  inquiry,  the  accused  or  per- 
son charged  "shall,  at  his  own  request  but 
not  otherwise,  be  a  competent  witness." 
(Act  Mar.  IG,  1878,  20  Stat.,  30;  Naval 
Courts  and  Boards,  1917,  sec.  512.) 

It  is  provided  by  statute  with  reference  to 
naval  general  coiuts-martial  and  courts  of 
inquiry,  "that  no  witness  shall  be  com- 
pelled to  incriminate  liimself  or  to  answer 
any  question  which  may  tend  to  incrim- 
inate or  degrade  him."  (Act  Feb.  16, 
1909,  sec.  12,  35  Stat.,  622.  See  note  to 
Constitution,  fifth  amendment,  under  "III. 
Compelling  person  to  be  witness  against 
himself.") 

Sec.  1460.  [Oath  of  members,  retiring  board.]  The  members  of  said  board 
shaU  be  sworn  in  each  case  to  discharge  their  duties  honestly  and  impartially. 
—  (3  Aug.,  1861,  c.  42,  s.  23,  v.  12,  p.  291.) 

On  general  subject  of  persons  in  the  Na\y  authorized  to  administer  oaths,  see  section  183, 
Revised  Statutes,  and  note  thereto. 

Sec.  1451.  [Findings  of  retiring  board,  cause  of  incapacity.]  When  said 
retiring-board  finds  an  officer  incapacitated  for  active  service,  it  shall  also  find 
and  report  the  cause  which,  in  its  judgment,  produced  his  incapacity,  and 
whether  such  cause  is  an  incident  of  the  service. —  (3  Aug.,  1861,  c.  42,  s.  23, 
V.  12,  p.  291.) 


Incident  of  service. — Section  1249,  Revised 
Statutes,  relating  to  the  Army,  is  similar  to 
the  above  section,  requiring  Army  retiring 
boards  to  report  whether  the  cause  of  dis- 
ability is  "an  incident  of  service."  Simi- 
lar provisions  are  also  contained  in  the  act 
of  April  12,  1902,  section  5  (32  Stat.,  100), 
relating  to  retirement  of  officers  in  the 
Revenue  Cutter  Service  (now  Coast  Guard.) 

Line  of  duty. — Section  1494,  Revised  Statutes, 
provides  for  the  promotion  of  an  oflicer 
failing  physically  upon  examination  for 
promotion,  where  such  physical  disqualifi- 
cation was  occasioned  by  wounds  received 
"in  the  line  of  his  duty,"  and  does  not 
incapacitate  him  for  other  than  sea  duty. 
The  act  March  4,  1911  (36  Stat.,  12G7),  pro- 
vides for  the  rank  on  retirement  of  an 
officer  who  fails  upon  examination  for  pro- 
motion by  reason  of  physical  disability 
contracted  "in  the  line  of  duty."  The 
act  of  May  22, 1917,  section  9  (40  Stat.,  86), 
provides  for  retirement  of  officers  of  Navy 
and  Marine  Corps,  temporarily  appointed 
or  promoted,  for  physical  disability  in- 
curred "in  line  of  duty."  The  act  of  June 
4,  1920  (41  Stat.,  834),  provides  for  retire- 
ment of  officers  of  the  Naval  Reserve  Force 
and  temporary  officers  of  the  Na\'y  for 
disability  incurred  ' '  in  line  of  duty . ' '  Sec- 
tion 1588,  Revised  Statutes,  provides  for 


the  pay  of  officers  retired  on  account  of  in- 
capacity residting  from  wounds  or  injuries 
received  "  in  the  line  of  duty ,"  or  from  sick- 
ness or  exposure  "therein."  The  pension 
laws  provide  for  payment  of  pension  in 
cases  of  disability,  by  reason  of  any  wound 
or  injury  received,  or  disease  contracted, 
while  in  the  ser\dce  of  the  United  States 
and  "in  the  line  of  duty"  (sec.  4693,  R.  S.; 
see  also  sees.  4697,  4698,  R.  S. ;  act  Jidy 
14,  1892,  27  Stat.,  149;  act  Apr.  8,  1904, 
33  Stat.,  163,  etc.)  The  War  Risk  Insur- 
ance Act  of  October  6,  1917,  section  300 
(40  Stat.,  405),  as  amended  by  act  of  Jime 
25,  1918  (40  Stat.,  609),  pro\'ides  compen- 
sation for  death  or  disability  "Resulting 
from  personal  injury  suffered  or  disease 
contracted  'in  the  line  of  duty  *  *  * 
but  no  compensation  shall  be  paid  if  the 
injury  or  disease  has  been  caused  by  his 
own  willful  misconduct."  Section  1754, 
Revised  Statutes,  prefers  for  civil  appoint- 
ment persons  disabled  in  the  military  or 
naval  ser\dce  "in  the  line  of  duty." 
Not  misconduct.— Act  of  May  13, 1908  (35  Stat., 
128),  proAided  for  payment  of  gi-atuity  to 
dependents,  upon  death  of  any  officer  or 
enlisted  man  on  the  active  list  of  the  Na\y 
or  Marine  Corps,  from  wounds  or  disease 
contracted  "in  line  of  duty."  This  was 
amended  by  act  of  August  22,  1912  (37  Stat., 


54641°— 22- 


-39 


603 


Sec.  1451. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


329),   providing  for  payment  of  gratuity 
where  the  death  was  from  wounds  or  dis- 
ease "not  the  result  of  his  own  miscon- 
duct."    (The  act  last  cited  was  repealed  by 
act  Oct.  G,  1917,  sec.  312,  40  Stat.,  408.  and 
reenacted    A\'ith   amendments   by    act   of 
June  4,  1920,  41  Stat.,  824).    The  act  of 
August  29,   1916,   as  amended   by  act  of 
July  1,  1918,  pro\'ided  for  ^nthholding  pay 
in  cases  of  ofiicers  or  enlisted  men  absent 
from  duty,  because  of  injiiry,  sickness  or 
disease  resulting  from  "misconduct."     (39 
Stat.,  580;  40  Stat.,   717.)     Section  1456, 
Revised  Statutes,  ])rohibits  the  retirement 
of  officers  " because  of  misconduct."     The 
act  of  Aiigust  5,  1882  (22  Stat.,  286),  pro- 
hibits retirement  of  officers  imfit  for  sea 
duty  by  reason  of  dnmkenness.  or  from  any 
cause  arising  from  "his  own  misconduct." 
Sections  4756  and  4757,  Re\-ised  Statutes, 
pro^■ide  for  payment  from  Na\y  pension 
fund  to  persons  discharged  from  the  NaA^ 
other  than  for  "misconduct." 
•Failure    of   board    to    report   cause    of 
incapacity. — The  report  of  the  board  that  there 
was  no  evidence  that  the  officer's  incapacity 
was  the  result  of  any  incident  of  the  service, 
"is  to  all  intents  and  purposes  a  report  that  the 
incapacitj''  was  not  the  result  of  an  incident  of 
the  service,  and  justifies  an  order  retiring  the 
officer  on  furlough  pay."     (Brown  v.  U.   S., 
113  U.  S.,  568,  573.). 

Effect  of  oflB.cer's  acquiescence  in  irreg- 
ularity of  board's  proceedings. — "If  there 
had  been  any  irregularity  or  defect  in  the  re- 
port of  the  board,  it  was  the  duty  of  Brown  to 
object  to  it  without  unreasonable  delay.  After 
his  acquiescence  in  the  proceedings  during  the 
remainder  of  his  Ufe,  it  does  not  he  with  his  ad- 
ministratrix to  object  to  them,  even  for  a  sub- 
stantial defect,  much  less  for  such  an  irregu- 
larity, if  it  be  an  irregularity,  as  is  set  up  in 
this  case.  Our  opinion  is,  therefore,  that  the 
order  of  the  President  retiring  Brown  was  au- 
thorized by  law,  and  was  regular  and  valid." 
(Brown  v.  U.  S.,  113  U.  S.,  568,  573.) 

Surplusage  in  board's  finding  is  of  no 
legal  effect.— Section  3  of  the  act  of  February 
21,  1861,  provided  for  the  retirement  of  medi- 
cal officers  "permanently  incapable,  from 
physical  or  mental  infirmity,  of  further  ser\dce 
at  sea,"  to  receive  "leave  of  absence  pay." 
A  medical  officer  was  retired  in  1861  imder 
said  law  for  disability  which  "did  not  occur  iia 
the  line  of  liis  duty."  Under  the  provisions  of 
this  law,  it  was  immaterial  whether  the  in- 
firmity of  the  officer  originated  in  line  of  duty 
or  not.  Hence,  in  so  far  as  the  cause  for  re- 
tirement thereunder  is  concerned,  the  state- 
ment of  the  board  of  1861  that  it  did  not  occur 
in  the  line  of  duty,  must  be  deemed  to  be 
mere  surplusage.  An  allegation  of  error  in 
such  statement,  therefore,  furnished  no  ground 
for  reexamination  of  his  case,  if  indeed  a  re- 
examination could  have  been  had  on  any 
ground  after  his  retirement.  (17  Op.  Atty. 
Gen.,  178.) 

The  act  of  March  3,  1873  (sec.  1588,  R.  S.), 
provided  75  per  cent  of  sea  pay  for  officera  re- 
tired for  disability  incurred  in  the  line  of  duty. 
In  1878  the  officer  mentioned  in  the  preceding 
paragraph  made  application  for  a  further  ex- 


amination of  his  case,  based  on  new  evidence 
tending  to  show,  as  lie  alleged,  that  the  opinion 
of  the  board  as  to  the  cause  of  his  disability  was 
erroneous.  Thereupon  the  Secretary  of  the 
Na^■y  ordered  a  new  board,  which  found  that 
his  disability  "had  its  origin  in  the  line  of 
duty."  This  finding  was,  on  January  1,  1879, 
approved  by  the  Secretary  of  the  Navy.  Held, 
that  the  Secretary  of  the  Navy  was  not  author- 
ized by  law  to  submit  the  case  of  this  officer  to 
a  medical  board  for  reexamination  as  to  the 
origin  of  the  disability  for  which  he  was  re- 
tired, and  that  the  Secretary's  decision  based 
on  the  report  of  that  board  is  without  anj^  legal 
effect  as  regards  the  cause  for  retirement  in  the 
case  of  said  officer  or  his  right  to  pay.  (17  Op. 
Atty.  Gen.,  178.) 

By  act  of  August  3,  1861,  Congress  made  new 
and  enlarged  provisions  for  the  retirement  of 
naval  officers,  both  of  the  line  and  staff.  These 
provisions  superseded  all  others  previously  in 
force,  but  had  no  applicatiou  to  officers  already 
retired  under  former  laws.  This  statute  di- 
^'ided  the  causes  for  retirement  into  two  classes. 
The  proAdsions  of  the  act  of  August  3,  1861,  are 
reproduced  in  sections  1448-1455,  Revised 
Statutes.  The  retiring  board  under  this  latter 
law  was  authorized  to  inquire  into  the  dis- 
ability only  of  officers  of  the  active  list.  There 
is  no  provision  authorizing  the  case  of  an  officer 
retired  under  the  act  of  February  21,  1861,  to 
be  investigated  by  a  board  with  a  -view  to  de- 
termining the  cause  of  his  retirement.  A  rein- 
vestigation of  such  case  without  authority  of 
Congress  could  not  be  made  the  basis  of  any 
change  in  regard  to  the  cause  of  the  officer's  re- 
tirement, nor  confer  upon  him  any  rights  to 
which  he  would  not  otherwise  be  entitled. 
(17  Op.  Attv.  Gen.,  178.) 

The  acts  of  July  15,  1870,  and  March  3, 
1873  (sec.  1588,  R.  S.),  pro\'ided  75  per  cent  of 
sea  pay  for  certain  classes  of  retired  officers, 
and  provided  that  "the  pay  of  all  other  officers 
on  the  retired  list"  shall  be  one-half  sea  pay. 
This  latter  phrase  is  broad  enough  to  include 
officers  retired  under  the  act  of  February  21, 
1861.    (17  Op.  Atty.  Gen.,  178.) 

Finding  made  under  a  misconstruction 
of  the  law. — An  opinion  and  recommendation 
of  an  examining  board  made  imder  a  miscon- 
struction of  the  law  can  not  control  distmct 
statutory  provisions,  and  accordmgly  the  re- 
tirement of  an  officer  in  accordance  with  such 
erroneous  finding  may  be  corrected  by  the 
President.     (17  5p.  Atty.  Gen.,  7.) 

Reconsideration  of  finding  by  board  of 
its  own  initiative. — Where  a  naval  retiring 
board  convened  to  inquire  into  the  nature  and 
cause  of  the  disability  of  an  officer  has  once 
finished  its  work,  rendered  a  complete  judg- 
ment in  the  case,  and  adjourned,  a  subsequent 
reconsideration  of  its  judgment  by  the  board, 
unless  authorized  or  directed  by  proper  au- 
thority, can  have  no  legal  effect.  Accordingly, 
upon  examination  of  tlie  record  of  the  proceed- 
ings before  a  naval  retiring  board  in  the  case  of 
Paymaster  Rodney,  held,  that  the  paper  at- 
tached to  the  record,  called  a  reconsideration 
of  the  finding  of  the  board,  was  without  legal 
effect,  and  that  the  officer  was  properly  retired 
under  the  original  finding  of  the  board  on 
furlough  pay.     (16  Op.  Atty.  Gen.,  104.) 


604 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1451. 


Findings  not  subject  to  review  by 
accounting  ofla.cers. — An  officer  of  the  Navy 
having  been  retired  for  a  peculiar  mental  tem- 
perament which  incapacitated  him  for  properly 
performing  duties  on  the  active  list,  the  find- 
ings of  the  retiring  board  are  not  subject  to  re- 
view by  the  accounting  officers,  and  his  retire- 
ment was  authorized  by  law.  (Dig.  Comp. 
Dec,  493.) 

"Incident  of  the  Service"  and  "Line  of 
Duty"  compaeed. 

"Incident  of  the  service"  synonymous 
with  "hne  of  duty." — [It  will  be  noted  from 
the  laws  cited  above  that  while  section  145], 
Revised  Statutes,  requires  retiring  boards  to 
report  whether  an  officer's  incapacity  resulted 
from  "an  incident  of  the  service,"  section  1588, 
Revised  Statutes,  in  prescribing  the  rate  of 
retired  pay  speaks  of  officers  retired  for  dis- 
abilities incurred  "in  the  line  of  duty,"  the  act 
of  March  4,  1911,  provides  increased  rank  for 
officers  retired  in  certain  cases  by  reason  of 
disability  contracted  * '  in  the  line  of  duty, ' '  and 
tlie  act  of  May  22, 1917,  speaks  of  retirement  of 
officers  for  physical  disability  incurred  "in  line 
of  duty."  These  statutes  obviously  use  the 
words  "incident  of  the  service,"  and  "line  of 
duty,"  as  synonymous  terms.  That  they  have 
been  so  regarded  in  the  past  is  shown  by  records 
of  naval  retiring  boards  which  have  frequently 
reported  the  disability  of  officers  as  having  been 
incurred  in  the  "line  of  duty"  instead  of  using 
the  statutory  phrase,  "incident  of  the  service." 
In  the  decisions  of  the  courts  and  law  officers 
of  the  Government  such  reports  of  retiring 
boards  have  been  accepted  without  questioning 
their  compliance  with  the  statute.  For  exam- 
ple, in  the  case  of  Biuchard  v.  United  States 
(19  Ct.  Cls.,  137;  125  U.  S.,  176)  the  retiring 
board  reported  the  officer  "incapacitated  for 
duty  by  disability  which  did  not  originate  in 
the  line  of  duty,"  which  report  was  approved 
by  the  President  and  held  by  the  courts  not 
subject  to  be  changed  either  by  the  Secretary 
of  the  Navy,  by  the  President,  or  by  Congress, 
although  the  q^uestion  of  terminology  was  not 
considered.  Similarly,  in  the  case  of  Potts  v. 
United  States  (125  U.  S.,  176),  the  board  re- 
ported that  the  incapacity  of  the  officer  did  not 
"  originate  in  the  line  of  duty, ' '  and  it  was  held 
by  the  courts  that  this  report,  having  been  duly 
approved,  could  not  afterwards  be  changed  to 
make  the  cause  of  the  officer's  retirement  "the 
result  of  an  incident  of  the  service."  To  the 
same  effect,  see  27  Op.  Atty.  Gen.,  221.  So 
also,  in  the  case  of  Morse  v.  United  States  (229 
U.S.,  208),  the  report  of  the  board  was  that  the 
incapacity  did  not  originate  "in  the  line  of 
duty";  see  also,  15  Comp.  Dec,  584.  These 
and  many  other  cases  show  that  in  practice  the 
terms  "incident  of  the  service"  and  "line  of 
duty,"  have  been  used  interchangeably  by 
naval  retiring  boards,  as  well  as  by  Congress, 
although  at  the  present  time  these  boards  in 
their  reports  are  requii-ed  to  conform  to  the 
statutory  language  in  cases  under  this  section, 
and  report  whether  or  not  the  disability  is 
caused  by  "an  incident  of  the  service."  (See 
Naval  Courts  and  Boards,  1917,  p.  461.)  How- 
ever, the  same  publication  (p.  316)  states  that 


the  phrase  "line  of  duty"  should  be  construed 
as  haAdng  the  same  meaning  with  "incident  of 
the  service."  In  the  Army  the  decision  upon 
this  point  is  as  follows:  "The  phrases  'in  line  of 
duty'  and  'incident  of  the  service,'  while  not 
synonymous,  are  not  widely  separate  in  mean- 
ing. Held,  that  the  efficient  execution  of  a 
statute  involving  the  one  would  give  reasonable 
operation  to  the  other.  In  other  words,  the 
several  'incidents'  which  go  to  make  up  the 
daily  or  yearly  routine  of  military  service 
constitute,  when  added  together,  the  'line  of 
duty'  which  is  contemplated  in  the  pension 
laws,  and  no  public  interest  will  suffer  if  either 
understanding  be  applied  by  a  retiring  board 
in  the  determination  of  a  particular  case." 
(Army  Dig.,  1912,  p.  986  c.)  Definitions  and 
illustrations  of  "line  of  duty"  would  in  view 
of  the  above  seem  equally  applicable  to  "inci- 
dent of  the  service  "  imder  this  section.] 

"line  of  duty"  defined. 

Intention  of  Congress. — The  question  of 
what  constitutes  "line  of  duty"  within  the 
meaning  of  the  pension  laws  was  exhaustively 
considered  and  authoritatively  construed  by 
Attorney  General  Cushing  in  1855  (7  Op.  Atty. 
Gen.,  149,  noted  below).  The  fact  that  after 
this  construction  Congress  has  retained  this 
expression  for  more  than  forty  years,  although  it 
has  repeatedly  revised  and  amended  the  pen- 
sion laws,  amounts  to  a  demonstration  that  Mr. 
Cusliing  properly  interpreted  its  meaning. 
(Rhodes  v.  U.  S.,  79  Fed.  Rep.,  740.) 

The  phrase,  "in  the  line  of  duty,"  has  been 
uniformly  used  in  the  statutes  from  1799  to  the 
present  time  in  defining  the  right  to  pensions. 
It  received  elaborate  discussion  from  Mr.  At- 
torney General  Cushing  in  1855  (7  Op.  Atty. 
Gen.,  149),  and  as  Congress,  since  the  publica- 
tion of  that  opinion,  has  not  seen  proper  to  sub- 
stitute any  other  expression,  we  are  justified  in 
concluding  that  it  stands  in  the  statutes  in- 
vested with  the  meaning  expressed  by  Mr. 
Cushing.     (17  Op.  Atty.  Gen.,  172.) 

[The  opinion  of  Attorney  General  Cushing  was 
adopted  by  the  Navy  Department,  and  his 
definition  of  "line  of  duty"  was  published,  July 
10, 1914,  in  a  circular  of  changes  and  corrections 
in  "Forms  of  Procedure  for  Courts  and  Boards 
in  the  Navy  and  Marine  Corps,  1910,"  pages 
224  and  225.  (See  also,  Naval  Courts  and 
Boards,  1917,  and  see  file  26250-1372,  Mar.  3, 
1919  and  file  26250-1491:1  Oct.  29,  1918.)  It 
was  approved  by  the  Circuit  Court  of  Appeals 
in  the  case  of  Rhodes  v.  United  States 
and  17  Op.  Atty.  Gen.,  172,  both  above 
noted.  However,  it  was  departed  from  by  the 
Court  of  Claims  in  Moore  v.  United  States,  48 
Ct.  Cls.,  110  (noted  below),  in  which  case,  how- 
ever, the  Court  of  Claims  did  not  discuss  or  cite 
the  Attorney  General's  opinions,  nor  the  deci- 
sion of  the  United  States  Circuit  Court  of  Ap- 
peals in  the  Rhodes  case,  above  noted.  The 
opinion  of  Attorney  General  Cushing  is  also 
modified  by  opinions  of  Attorney  General 
Palmer,  August  21,  1919,  and  June  2,  1920  (32 
Op.  Atty.  Gen.  12,  193),  both  noted  below. 
"Both  the  Circuit  Court  of  Appeals  and  the 
Court  of  Claims  have  jinisdiction,  in  proper 
cases,  to  decide  the  question.    I  can  not  say 


605 


Sec.  1451. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


that  the  decision  of  either  is  binding  on  the 
other.  In  so  far  as  they  are  in  accord,  I  would, 
in  the  absence  of  a  ruling  by  the  Supreme  Court, 
feel  bound  to  accept  their  decision.  In  so  far 
as  either  has  made  a  decision  on  a  point  not 
considered  by  the  other,  and  not  in  necessary 
conflict  Avith  its  ndings,  1  tliiuk  you  should 
follow  such  decision.  In  so  far  as  the  two  courts 
are  in  conflict,  it  can  not  be  said  that  there  has 
been  a  binding  deterrhination,  and  you  should 
adopt  the  rule  which  is  deemed  most  consistent 
with  reason  and  general  authority  whether  in 
entire  accord  with  the  ruling  of  either  comt  or 
not."  (Atty.  Gen.  Palmer  to  Secy.  Treas.,  32 
Op.  Atty.  Gen.,  12,  22).] 

The  question  of  what  constitutes  "line  of 
duty"  must  have  existed  almost  from  the 
foundation  of  the  Government,  in  the  naval 
service  and  also  in  the  military,  and  in  such 
varieties  of  form  as  to  afford  ample  means  of 
ascertaining  the  true  legal  intendment  of  the 
several  acts  of  Congress.  Thus,  in  regard  to 
the  Navy,  we  have  the  old  pro\ision  of  the  act 
of  March  2,  1799,  which  is  the  original  act  for 
the  government  of  the  Navy,  to  the  effect  that 
"every  officer,  seaman,  or  marine  disabled  in 
the  line  of  his  duty,  shall  be  entitled  to  receive 
for  his  own  life,  and  the  life  of  his  wife,  if  a 
married  man  at  the  time  of  receiving  the 
wound,  one-half  his  monthly  pay"  (1  Stat. 
716).  Coming  down  to  a  later  period,  we  have 
a  series  of  acts  in  wliich  the  same  idea  appears. 
(7  Op.  Atty.  Gen.,  149,  151.) 

Congress,  if  it  had  so  pleased,  might  have 
prescribed  an  arbitrary  general  rule,  as,  for 
example,  pension  to  all  cases  of  disability  or 
death  in  service,  except  in  the  contingency 
of  misconduct;  or  pension  in  all  cases,  except 
where  the  cause  of  disability  or  death  should 
occur  while  the  party  is  in  arrest  or  under 
sentence,  on  furlough  or  leave  of  absence. 
Such  a  rule,  like  all  other  rules  of  an  assumed 
arbitrary  standard,  might  have  been  easier  to 
administer  than  a  natural  rule,  for  the  latter 
demands,  in  use,  discriminating  examination 
and  just  appreciation  of  the  nature  of  the  in- 
cluded subject-matter;  but  the  natural  rule  is 
the  only  just  and  eqiutable  one,  whether  as 
regards  the  rights  of  persons  in  the  service,  and 
their  families,  or  the  policy  of  the  Government. 
(7  Op.  Atty.  Gen.,  149,  163.) 

Where  precedents  exist  in  the  files  of  a 
department  which  are  apparently  not  in 
accord  with  the  meaning  of  the  words  "line  of 
duty,"  as_  intended  by  Congress,  such  prece- 
dents avail  nothing;  decisions  in  the  public 
offices  of  the  Government  are  facts,  not  rules  of 
law.    (7  Op.  Atty.  Gen.,  149,  153.) 

Definition  of  "Hne  of  duty." — ^The  phrase 
"line  of  duty,"  is  an  apt  one,  to  denote  that  an 
act  of  duty  performed  must  have  relation  of 
causation,  mediate  or  immediate,  to  the  wound, 
the  casualty,  the  injury,  or  the  disease,  pro- 
ducing disability  or  death.  (7  Op.  Atty.  Gen., 
149,  161;  17  Op.  Atty.  Gen.,  172;  Rhodes  v. 
U.  S.,  79  Fed.  Rep.,  740.) 

Was  the  cause  of  disability  or  death  a  cause 
within  the  line  of  duty  or  outside  of  it?  Was 
the  cause  appertaining  to,  dependent  upon,  or 
otherwise  necessarily  and  essentially  connected 
with,  duty  within  the  line,  or  was  it  unappur- 
tenant,  independent,  and  not  of  necessary  and 


essential  connection?  That  is  the  true  test- 
criterion.  (7  Op.  Atty.  Gen.,  149,  162;  17  Op. 
Atty.  Gen.,  172.) 

The  phrase,  "line  of  duty,"  is  definite, 
though  comprehensive'.  He  who  contracts 
disease  or  dies  in  consequence  of  the  ordinary 
performance  of  his  military  duty,  or  in  the 
performance  of  any  special  act  of  military 
duty,  whether  at  the  moment  of  performance 
he  were  on  duty  or  off  duty,  in  active  service 
or  on  furlough,  of  habits  virtuous  or  habits 
vicious,  gallantly  fighting  his  country's  enemy 
or  expiating  an  offense  in  the  guardhouse  or 
prison  bay,  he  who  in  these  or  any  other  circum- 
stances contracts  disease  in  the  performance 
of  an  act  of  duty,  contracts  it  "in  the  line  of 
his  duty."  On  the  other  hand,  neither  the 
bad  man  who  dies  of  his  incorrigible  vices,  nor 
the  good  man  who,  at  the  full  maturity  of  blame- 
less life,  dies  in  the  course  of  nature  of  any  of 
the  maladies  incident  to  old  age,  can  be  said 
to  die  of  disease  contracted  while  in  the  line  of 
duty.    (7  Op.  Atty.  Gen.,  149,  161.) 

Speaking  generally,  a  soldier  who,  between 
the  date  of  his  entry  into  the  service  and  the 
date  of  his  discharge,  suffers  injury  or  contracts 
disease  resulting  in  disability,  is  entitled  to 
compensation  imder  the  War  Risk  Insui'ance 
Act  of  June  25,  1918  (40  Stat.,  611,  sec.  300), 
unless  such  injury  is  caused  by  (1)  his  own 
willful  misconduct,  or  (2)  some  act  or  course 
of  conduct  of  his  disconnected  with  his  military 
duties.     (32  Op.  Atty.  Gen.  12,  21.) 

The  service  must  have  been  the  cause  of 
the  disability,  and  not  merely  coincident 
with  it  in  time. — Nor  was  there  any  error 
in  the  definition  wliich  the  court  gave  to  the 
jury  of  a  "disease  contracted  in  the  Line  of 
duty,"  when  he  declared  that  "the  service 
must  have  been  the  cause  of  the  disease,  and 
not  merely  coincident  with  it  in  time."  This 
is  the  patent  and  natural  meaning  of  the 
language  of  the  statute.  It  places  the  service 
and  the  discharge  of  duty  m  the  relation  of 
causes  to  the  injuries  and  diseases  that  warrant 
the  grant  of  pensions.  (Rhodes  v.  U.  S.,  79 
Fed.  Rep.,  740.) 

Regarding  what  was  said  in  the  Rhodes  case 
in  the  Ught  of  the  opinions  upon  which  it  is 
based,  the  following  general  rule  may  be  de- 
duced :  ' '  The  mere  fact  that  an  injury  or  disease 
is  coincident  in  time  with  service  is  not  suffi- 
cient to  class  it  as  suffered  or  contracted  'in  the 
line  of  duty.'  It  must  have  been  caused  by  the 
presence  of  its  victim  in  the  line  of  duty  when 
it  was  received  or  contracted.  But  the  relation 
of  causation  is  sufficiently  shown  when  it 
appears  that  the  victim  was  at  a  place  and  doing 
what  was  required  or  permitted  by  his  duty  as  a 
soldier,  and  that  between  his  presence  and 
conduct  and  the  injury  or  disease,  no  adequate 
and  sufficient  cause,  for  which  he  is  responsible, 
intervened."     (32  Op.  Atty.  Gen.,  12,  19,  194.) 

The  soldier  will  be  responsible  for  the  inter- 
vening cause  if  (1)  it  consists  of  his  own  willful 
misconduct  or  (2)  it  is  something  which  he  is 
doing  in  pursuance  of  some  private  avocation 
or  business.  (32  Op.  Atty.  Gen.,  12,  23,  195.) 
The  two  intervening  causes  mentioned  are  not 
intended  to  exclude  all  others.  (32  Op.  Atty. 
Gen.,  395.) 


606 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1451. 


The  cause  of  disability  (or  of  death),  must  be 
a  cause  connected  by  some  line  of  co-ligation 
with  the  performance  of  duty  of  an  official  or 
professional  natiu-e.  (7  Op.  Attv.  Gen.,  149, 
159.) 

To  pension  disabilities  or  deaths  occmring 
in  the  mere  course  of  nature,  and  ha\dng  no 
relation  of  casualty  in  duty,  or  disabilities  or 
deaths  produced  by  diseases  or  casualties 
happening  to  an  officer  or  soldier  in  the  prosecu- 
tion and  pursuit  of  his  private  affairs  and 
amusements,  or  whilst  employed  on  furlough 
in  lucrative  occupation  not  official,  is  not 
required  by  any  consideration  of  public  service. 
(7  Op.  Atty.  Gen.,  149,  163.) 

The  true  theory  of  reason,  of  right,  and  of 
public  poUcy  in  these  matters  is  to  bestow 
disability  or  death  pensions  only  in  those 
cases,  but  in  all  those  cases,  where  the  cause 
of  disability  or  death  is  the  logical  incident  or 
provable  effect  of  duty  in  the  service.  (7  Op. 
Atty.  Gen.,  149,  163.) 

No  one  would  seriously  contend  that  every 
wound,  injury,  or  disease  received  or  con- 
tracted during  the  term  of  ser\'ice  is  pension- 
able under  the  law.  A  wound  or  injiu-y  in- 
flicted upon  himself  by  a  soldier,  or  received 
by  him  while  hunting  wild  animals,  or  squab- 
bling with  his  comrades  for  his  own  amusement, 
or  while  doing  any  other  act  not  in  the  line  of 
his  duty,  would  form  no  basis  for  a  pension. 
The  reason  is  that  it  would  not  be  caused  by 
his  presence  in  the  line  of  duty.  (Rhodes  v. 
U.  S.,  79  Fed.  Rep.,  740.) 

The  letter  of  the  law  prescribes  that  the 
quality  of  the  act  or  condition,  as  whether  in 
line  of  duty  or  not  in  it,  shall  determine  the 
question  of  pension ;  that  alone  is  just  and  wise ; 
and  that  is  the  thought  which  has  from  the 
beginning  of  this  course  of  legislation  to  the 
end,  held  its  place  with  unchangeable  con- 
stancy in  all  the  acts  of  Congress.  (7  Op. 
Atty.  Gen.,  149,  164.) 

The  law  does  not  say  "disease  contracted 
while  in  the  service,"  and  therefore  is  not 
coextensive  with  the  mere  status  of  an  officer 
in  commission,  or  an  enlisted  soldier,  sailor  or 
marine.     (7  Op.  Atty.  Gen.,  149,  160.) 

It  would  not  have  answered  to  say  merely 
"in  the  service,"  for  that  would  have  made 
the  right  of  pension  more  extensive  than  the 
right  of  pay,  so  as,  in  all  circumstances,  to 
comprehend  not  only  deaths  of  private  mis- 
adventiu-e,  but  even  the  case  of  criminality, 
arrest,  or  suspension  under  sentence.  (1  Op. 
Atty.  Gen.,  149,  160,  161.) 

The  cormection  between  the  cause  and 
the  efiPect  need  not  always  be  so  direct 
or  instantaneous  as  in  cases  where  the  party 
is  in  the  immediate  and  ob\ious  discharge  of  his 
duty.  It  suffices  if  the  disability  be  plainly, 
though  remotely,  the  incident  and  result  of 
the  military  profession.  The  perfonnance  of 
duty  may  be  received  as  the  original  cause  of 
disability  in  some  cases  where  it  is  not  the 
proximate  cause.  It  is  not  necessaiy  that  the 
casualty  or  disease  should  be  in  its  nature  pecu- 
liar to  the  employments  of  military  men;  it 
may  be  loss  of  eyesight,  occasioned  by  expo- 
sure, or  consumption,  the  result  of  a  cold 
aggravated  by  the  labors  and  hazards  of  the 
profession,  or  palsy,  attributable  to  the  change 


of  habits  in  the  transition  from  civil  to  military 
life.  These  are  cases  of  disability  in  the  line 
of  duty,  though  they  might  have  happened 
to  the  party  in  any  other  occupation.  There 
is  not  one  of  these  cases  which  has  not  relation 
of  consequence  or  effect,  either  remote  or 
proximate,  to  the  performance  of  military  duty. 
(7  Op.  Atty.  Gen.,  149,  158.) 

Not  restricted  to  battle  or  some 
hazardous  enterprise. — "The  expression 
'  wounds  received  in  the  line  of  his  duty '  found 
in  section  1494,  Revised  Statutes,  which  pro- 
\ddes  for  the  promotion  of  officers  of  the  Navy 
whose  physical  disqualifications  do  not  inca- 
pacitate them  for  other  duties,  means  precisely 
what  it  says — namely,  wounds  received  in  the 
line  of  duty — and  is  not  restricted  to  any  par- 
ticular part  of  that  duty,  as  to  wounds  received 
in  battle  or  in  some  hazardous  enterprise." 
(23  Op.  Atty.  Gen.,  324.) 

Private  affairs  not  embraced  by  "line 
of  duty." — When  the  acts  speak  of  "Une  of 
duty,"  they  mean,  of  course,  pubUc  duty. 
(7  Oj).  Atty.  Gen.,  150,  155.) 

It  is  impossible  to  say  that  the  phrase  cas- 
ualties or  injuries  received  "in  the  line  of 
duty, ' '  comprehends  all  the  possible  misadven- 
tiu-es  of  mere  private  life,  which  may  happen 
to  an  officer  in  his  personal  affairs,  and  wholly 
disconnected  from  his  public  duty,  though  he 
be  not  on  furlough.  (7  Op.  Atty.  Gen.,  149, 
156.) 

Every  person  who  enters  the  military  serv- 
ice of  the  country — officer,  soldier,  sailor,  or 
marine — takes  upon  himself  certain  moral  and 
legal  engagements,  which  constitute  his  offi- 
cial or  professional  obligations.  Whilst  in  the 
performance  of  those  things,  which  the  law 
requires  of  him  as  military  duty,  he  is  in  the 
line  of  his  duty.  But,  at  the  same  time,  though 
a  soldier  or  sailor,  he  is  not  the  less  a  man  and  a 
citizen,  with  private  rights  to  exercise  and  duty 
to  perform;  and  while  attending  to  these 
things,  he  is  not  in  the  line  of  his  public  duty. 
(7  Op.  Atty.  Gen.,  149,  162.) 

Suppose  that  an  officer  is  a  proprietor  of  a 
stock  farm,  as  he  has  a  perfect  right  to  be,  to 
which  private  property,  without  neglect  of 
any  of  his  public  duties,  he  gives  occasional 
attention,  and  suppose  that  in  the  care  of  his 
property  he  is  killed  by  the  kick  of  a  vicious 
horse  of  his  stock,  most  assuredly  it  can  not  be 
pretended  that  such  a  casualty  or  injury  occurs 
"in  the  line  of  duty."  (7  Op.  Atty.  Gen.,  149, 
156.) 

A  soldier  in  attempting  to  pass  the  guard 
with  a  written  permit  was  injured  by  the  sen- 
tinel. If  the  pass  was  given  to  him  solely  for 
the  purpose  of  enabling  him  to  attend  to  his 
private  affairs,  and  if,  at  the  time  he  was  in- 
jured he  was  going  about  his  private  business, 
he  can  in  no  sense  be  considered  as  in  the  public 
service.  (7  Op.  Atty.  Gen.,  149,  155;  2  Op. 
Atty.  Gen.,  590.) 

Around  all  these  acts  of  the  soldier  or  sailor 
which  are  official  in  their  nature,  the  pension 
law  draws  a  legislatiA-e  line,  and  then  it  says 
to  the  soldier  or  the  sailor — If,  while  perform- 
ing acts  which  are  within  that  line,  you  there- 
by incur  disability  or  death,  you,  or  your 
widow,  or  children,  as  the  case  may  be,  shall 
receive  a  pension  or  other  allowance;  but  not 


607 


Sec.  1451. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


if  the  disability  or  death  arise  from  act3  per- 
formed outside  of  that  line,  that  is,  absolutely 
disconnected  from,  and  wholly  independent 
of,  the  performance  of  duty.  (7  Op.  Atty. 
Gen.,  H9,  1G2.) 

To  illustrate,  a  soldier  in  camp  may,  during  a 
rest  hour,  be  employing  his  time  by  working 
on  an  invention  wholly  disconnected  with  the 
military  service.  He  is,  in  general,  in  the  line 
of  duty,  but  at  the  moment  is  exercising  a 
private  right  for  private  purposes.  An  ex- 
plosion is  produced  by  chemicals  which  he  is 
using.  There  has  intervened  a  cause  for  which 
he  is  responsible  and  the  injury  is  not  suffered 
in  the  line  of  duty.  But  while  so  employed  he 
is  struck  by  lightning,  or  is  suddenly  stricken 
with  api^endicitis;  clearly  there  has  been  no 
intervening  cause  for  which  he  is  responsible 
and  the  injury  is  suffered  in  the  line  of  duty. 
In  either  case,  what  he  was  doing  was  in  no  way 
inconsistent  with  the  performance  of  his  mili- 
tary duty.  While  he  was  doing  it,  the  duties 
of  a  soldier  still  rested  on  him.  He  was  not 
free  from  their  obligations,  nor  was  he  neces- 
sarily deprived  of  the  rights  which  grow  out  of 
their  performance.  This  would_  result  only  in 
the  event  the  thing  he  was  doing,  outside  of 
his  duty,  caused  the  injury  he  received.  (32 
Op.  Atty.  Gen.,  12,  20.) 

May  be  in  "line  of  duty"  although  not 
"on  duty." — The  law  does  not  say,  "disease 
contracted  while  on  duty,"  and  is  therefore 
independent  of  the  condition  of  watch  on  deck, 
or  turn  of  detail  in  camp  or  garrison.  (7  Op. 
Atty.  Gen.,  149,  160.) 

Nor  would  the  wise  intentions  of  the  law  have 
been  fulfilled  by  merely  saying,  "while  on 
duty,"  for  on  one  hand  a  party,  though  on 
duty,  might  contract  disease  or  come  to  his 
death  by  vice  or  crime;  and  on  the  other  hand, 
although  not  on  duty,  although  on  furlough, 
on  leave  of  absence,  in  arrest,  under  sentence 
of  punishment  for  breach  of  duty,  civil  or  mil- 
itary, in  all  these  conditions  his  general  mili- 
tary obligations  continue  in  full  force  and  he 
has  the  faculty  and  may  have  the  occasion  in 
any  of  these  conditions  to  perform  acts  of  pure 
military  duty  and  in  the  performance  thereof 
to  incur  disease  or  death,  in  circumstances 
devolving  on  his  widow  or  children  the  highest 
moral  and  the  amplest  legal  right  of  pension 
allowance.     (7  Op.  Atty.  Gen.,  149,  161.) 

When  it  is  remembered  that  no  commissioned 
officer,  or  enlisted  soldier,  seaman,  or  marine, 
has  power  to  cast  off  his  obligation  at  will; 
that  whether  he  Ije  on  duty  or  off,  in  glory  as  in 
disgrace,  still  the  banner  of  his  country  is  over 
him  and  its  oath  upon  his  conscience;  when 
this  great  fact  shall  be  remembered,  it  must  be 
inevital)le  to  concede  that  any  rule  based  on 
the  assumption  of  its  being  impossible  for  an 
officer  or  soldier  on  furlough,  on  leave  of  ab- 
sence, in  arrest,  under  sentence,  to  perform 
acts,  suffer  casualties,  receive  wounds,  or  incur 
causes  of  disease,  in  the  line  of  his  duty,  is  not 
a  truth  and  like  all  things  not  true,  can  not  be 
conformable  to  justice  or  wisdom.  (7  Op. 
Atty.  Gen.,  149,  163.) 

As  while  on  duty  he  may  do  or  suffer  things 
not  in  the  line  of  his  duty,  so  whilst  off  duty 
or  on  furlough  or  under  censure,  he  may  do. 


and  suffer  things  which  are  in  the  line  of  duty. 
(7  Op.  Atty.  Gen.,  149,  164.) 

The  law  does  not  say  "disease  contracted 
while  in  active  service,"  and  therefore  is  not 
designed  to  raise  the  question  of  whether  on 
furlough,  or  leave  of  absence,  or  not.  Nor 
would  it  have  been  satisfactory  to  say,  "in 
active  serWce,"  for  that  is  descriptive  only  of 
the  orders  under  which  a  party  may  happen  to 
be,  and  affords  no  sufficient  indication  of  what 
is  the  nature  or  the  quality  of  his  acts.  (7 
Op.  Atty.  Gen.,  149,  160,  161.) 

The  idea  that  fiulough  or  leave  of  absence 
must  of  necessity  exclude  an  officer  from  all 
benefit  of  the  pension  laws  maj'^  have  arisen 
from  the  fact  that  officers  are  furloughed  or 
put  on  leave  of  absence  from  time  to  time  for 
the  piu'pose  of  enabling  them  to  enter  into  lu- 
crative private  pm'suits  or  for  some  other  cause 
which  implies  negation  of  public  duty.  In 
such  cases  the  officer  will,  of  course,  be  ex- 
cluded from  the  pur\dew  of  the  pension  laws, 
not  because  of  the  furlough  or  leave  of  absence 
per  se,  but  because  of  the  special  occasion  or 
consequences  thereof.  (7  Op.  Atty.  Gen., 
149,  164.) 

A  soldier  is  not  in  line  of  duty  if  absent  on  a 
furlough  which  by  its  terms  authorized  him  to 
enter  into  some  form  of  civil  employment.  He 
is  not,  therefore,  entitled  to  compensation  for 
injury  suffered  or  disease  contracted  while  so 
furloughed,  regardless  of  what  may  have  caused 
it.     (32  Op.  Atty.  Gen.,  24,  26,  197.) 

A  soldier  or  sailor  while  "under  an-est"  or 
"in  confinement"  is  not  discharged  from  the 
obligation  of  duty,  and  is  occasionally  called 
upon  to  perfonn  duty  in  which  he  may  distin- 
guish himself  and  die  honorably,  as,  for  exam- 
ple, in  the  contingency  of  a  post  or  a  camp 
attacked  by  the  enemy,  or  a  ship  in  peril  at  sea. 
So,  still  more,  of  an  officer  on  furlough.  So  it 
may  be  in  the  case  of  a  soldier  temporarily 
"absent  on  leave,"  nay,  even  of  one  compro- 
mised in  some  grave  military  offense.  (7  Op. 
Atty.  Gen.,  149,  154.) 

In  regard  to  arrest,  again:  Suppose  that  on 
march,  m  camp,  or  garrison,  or  on  a  voyage,  an 
officer  is  put  in  arrest  on  charges.  In  the  first 
place,  those  charges  may  not  be  substantiated, 
and  then  it  would  be  manifestly  unjust  that  the 
mere  fact  of  his  being  charged  should  operate  to 
deprive  himself  or  his  family  of  pension.  Or, 
while  he  is  in  arrest,  he  dies  of  camp  fever  or 
ship  fever,  and  then  it  is  unjust  to  presume  a 
criminality  not  proved  in  the  course  of  the  law. 
Or,  whether  guilty  or  not,  if  he  die  of  wounds, 
casualty,  or  disease  contracted  while  in  arrest, 
still  the  death  is  not  the  consequence  of  the 
arrest,  but  of  the  public  service.  If  not  dying 
in  arrest,  and  on  trial  being  con^dcted  and  sen- 
tenced, and  that  sentence  be  of  death  or  dis- 
missal for  some  grave  military  crime,  that  of 
course  terminates  the  question  of  pension;  but, 
if  his  offense  be  a  light  one,  with  a  sentence  of 
reprimand,  for  instance,  and  he  should  have 
happened  to  contract  disability  or  mortal  dis- 
ease while  in  arrest,  as  by  the  hazards  of  a  long 
march  or  voyage,  it  seems  not  just  to  add  to  his 
legal  sentence  the  serious,  indirect  aggravation 
of  incapacity  of  pension.  All  these  difiiculties 
are  avoided  or  conciliated  by  directing  inquiry 


608 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1451. 


to  the  question — ^Yas  the  cause  of  disability  or 
death,  or  was  it  not,  an  act  of  his  official  military 
duty?     (7  Op.  Atty.  Gen.,  149,  164,  1(35.) 

A  leave  of  absence,  an  ordinary  furlough,  or 
an  arrest  does  not  remove  a  soldier  from  the 
active  service.  But,  on  duty,  on  furlough,  or 
under  arrest,  he  may  do  things  both  within  or 
without  the  line  of  duty  which,  though  entirely 
free  from  the  imputation  of  misconduct,  may 
cause  injui'v  or  disease.  (32  Op.  Atty.  Gen., 
12,  22,  25,  197.) 

May  be  not  "line  of  duty,"  although 
"on  duty." — A  party,  though  on  duty,  might 
contract  disease  or  come  to  hia  death  by  vice  or 
crime.     (7  Op.  Atty.  Gen.,  149,  161.) 

While  on  duty,  he  may  do  or  suffer  things  not 
in  the  line  of  his  duty.  (7  Op.  Atty.  Gen.,  149, 
164.) 

An  officer  or  soldier  who  is  neither  under 
arrest  nor  in  confinement  nor  on  furlough,  nor 
absent  \vithout  leave,  may  yet  die  in  a  thousand 
ways  which  will  be  neither  of  disease  contracted 
nor  of  casualties  by  drowning  or  otherwise,  nor 
of  wounds  received  while  in  the  line  of  duty; 
as,  for  example,  in  a  chance  quarrel,  or  in  dan- 
gerous amusements.  The  conditions  of  inclu- 
sion, as  well  as  of  exclusion,  must  have  relation 
to  the  line  of  duty.  (7  Op.  Atty.  Gen.,  149, 
155.) 

A  soldier  or  sailor,  like  any  other  man,  has 
the  physical  faculty  of  doing  many  things  which 
are  in  violation  of  duties,  either  general  or  spe- 
cial ;  and  in  doing  these  things  he  is  not  acting 
in  the  line  of  hia  duty.  (7  Op.  Atty.  Gen.,  149, 
162.) 

Misconduct  or  violation  of  duty  can  not 
be  line  of  duty. — It  is  conceded  that  if  the 
cause  of  death  intervene  as  the  incident,  or  be 
the  result,  of  any  misconduct  or  violation  of 
duty,  as  by  drunkenness  or  other  vicious  course 
of  life,  or  in  the  act  of  mutiny,  desertion,  or 
other  breach  of  military  obligations,  then  the 
party  does  not  die  by  disease  contracted,  cas- 
ualty occurring,  or  injury  received  while  in  the 
line  of  duty.  No  man,  it  is  clear,  is  acting  in 
the  line  of  duty  while  the  act  he  perfonns  is  a 
violation  of  his  duty.  All  such  cases  we  ex- 
clude at  once,  and  by  common  consent,  from  the 
purview  of  the  pension  laws.  (7  Op.  Atty.  Gen., 
149,  153.) 

A  soldier  in  attempting  to  pass  the  guard  with 
a  written  permit  was  injured  by  the  sentinel. 
If  the  assault  was  brought  on  by  his  own  mis- 
conduct, he  can  not  be  said  to  have  been  dis- 
abled while  in  the  line  of  hia  duty.  (7  Op. 
Atty.  Gen.,  149,  155;  2  Op.  Atty.  Gen.,  590.) 

Misconduct  or  violation  of  duty  must 
have  relation  to  the  cause  of  disabiUty, 
to  exclude  line  of  duty. — When  violation 
of  duty  is  taken  as  a  rule  of  exclusion,  it  oper- 
ates only  where  the  violation  of  duty  has  prob- 
able relation  to  the  cause  of  death;  and  not 
where  these  are  independent  facts.  (7  Op. 
Atty.  Gen.,  149,  154.) 

A  sailor  who  is  laboring  under  all  the  worst 
effects  of  vicious  indulgence,  and  subject  to  die 
at  any  moment  of  disease  occasioned  by  that 
cause,  may  yet  happen  to  die  of  other  disease 
contracted,  or  of  casualty  occurring,  or  of  injury 
received  while  indubitably  in  the  line  of  his 
duty.  In  a  word,  these  assumed  causes  of 
exclusion  should  operate,  not  per  se,  but  only 


where  they  affirmatively  exclude  the  line  of 
duty.     (7  Op.  Atty.  Gen.,  149,  154.) 

Contributory  negligence. — An  injury 
suffered  by  a  person  otherwise  in  the  line  of 
duty  shall  not  be  held  to  have  been  suffered 
"not  in  the  line  of  duty"  for  the  reason  that 
the  negligence  of  such  person  contributed  to 
the  injury.     (32  Op.  Atty.  Gen.,  14,  24). 

The  question  of  reraote  and  proximate 
cause,  although  frequently  treated  as  a  ques- 
tion of  law,  is  in  reality  one  of  fact,  and  which 
in  an  individual  case  can  receive  but  little  light 
from  the  numerous  adjudications.  In  every 
chain  of  circumstances  each  step  is,  to  a  greater 
or  less  degree,  the  consequence  of  its  prede- 
cessor.    (17  Op.  Atty.  Gen.,  172.) 

Thus,  an  ofhcer  of  volunteers,  while  in  the 
service  of  the  United  States,  went  to  a  depot 
in  Ohio,  and  while  expediting  the  checking  of 
his  baggage,  was  struck  by  the  baggage-master 
on  the  head  with  a  hatchet,  from  the  results  of 
which  he  was  seriously  disabled.  The  officer's 
assumption  of  the  duties  of  his  office  caused  htm 
to  be  subject  to  orders;  the  order  caused  him 
to  come  in  contact  with  the  baggage-master. 
If  there  did  not  intervene  between  this  contact 
and  the  injury  an  adequate  and  sufhcient  cause 
for  which  the  officer  was  responsible,  he  is  en- 
titled to  his  pension.  (17  Op.  Atty.  Gen., 
172.) 

But  it  seems  that,  while  expediting  the 
checking  of  his  baggage,  he  used  abusive  lan- 
guage; as  he  was  responsible  for  this,  the  ques- 
tion arises  whether  it  was  an  adequate  and 
efficient  cause  of  the  injury.  If  he  attempted 
or  threatened  violence,  or  if,  after  an  alterca- 
tion, he  used  such  gestures  or  placed  his  hands 
in  such  a  position  as  to  lead  his  opponent  to 
apprehend  immediate  personal  danger,  his  con- 
duct would  be  the  immediate,  adequate  cause 
of  the  injury  and  performance  of  duty  could 
not  be  treated  as  the  cause,  either  mediate  or 
immediate.     (17  Op.  Atty.  Gen.,  172.) 

It  is  impossible  to  lay  down  a  general  rule 
applicable  to  all  cases  of  this  kind,  or  to  the 
different  aspects  which  the  present  claim 
might  present  as  the  facts  shall  be  developed 
by  the  evidence.  It  can  not  be  said,  on  the 
one  hand,  that  a  soldier  is  entitled  to  a  pen- 
sion vmless  the  provocation  he  gave  was  such  as 
to  acquit  the  assailant  in  a  court  of  law;  nor, 
on  the  other  hand,  that  the  slightest  departure 
from  the  rules  of  proper  conduct,  followed  by 
an  injmy,  shall  preclude  allowance  of  his 
claim.  Between  the  two  are  an  infinite  variety 
of  supposable  cases  involving  different  degrees 
of  provocation  which  can  not  be  measured,  so. 
as  to  determine  as  a  matter  of  law  their  ade- 
cjuacy  to  produce  the  result.  It  is  in  determin- 
ing, not  the  legal  justification  of  the  baggage- 
master  but  the  adequacy  of  the  provocation, 
that,  in  view  of  the  benevolent  purposes  of  the 
law,  a  wise  and  liberal  discretion  ia  to  be 
exercised.     (17  Op.  Atty.  Gen.,  172.) 

The  real  question  is,  whether  the  officer's 
conduct  in  the  baggage  room  waa  reasonably 
calculated  to  lead  to  violence,  dangerous  to 
himself.  If  it  waa  so  calculated,  his  miscon- 
duct brought  its  own  punishment,  and  if  the 
punishment  was  greater  than  he  deserved,  legal 
proceedings  against  the  baggage-master  would 
furnish  him  hia  remedy.     If  his  misconduct 


609 


Sec.  1451. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


caused  the  injury,  he  is  not  entitled  to  a  pen- 
sion.    (17  Op.  Atty.  Gen.,  172.) 

If,  while  in  the  performance  of  his  duty,  he 
had  been  injured  by  the  fall  of  a  carelessly  piled 
lot  of  bajjsage,  the  performance  of  his  duty 
would  have  been  the  mediate  cause,  for  no 
responsil)ility  would  rest  on  him  for  the  inter- 
vening cause.  Otherwise,  if  in  an  interference 
with  the  liaggage-master 's  province  and  duties 
he  had  seized  a  trunk  and  ])rought  it  down  on 
hishead.     (17  Op.  Atty.  Gen.,  172.) 

"Line  of  duty"  and  "not  misconduct," 
are  not  synonymous  terms. — la  it  the  in- 
tent of  the  law  to  give  a  pension  generally,  as 
the  normal  fact,  and  with  exception  only  of 
the  few  extraordinary  cases  of  death  proved  to 
be  the  consecpience  of  a  palpable  violation  of 
duty?  Or  is  the  right  of  pension  to  be  re- 
stricted to  the  cases  of  death  ha\dng  some 
proved  or  probable  relation  to  duty,  whether 
as  causation  or  as  a  consociated  circumstance? 
(7  Op.  Atty.  Gen.,  149,  153.) 

The  law  does  not  say,  any  disease  "not  the 
consequence  of  misconduct;"  and  if  that  had 
been  the  category  contemplated  by  the  legis- 
lator, he  would  have  propounded  it  in  simple 
and  apt  phraseology.  (7  Op.  Atty.  Gen.,  149, 
160.) 

The  Attorney-General  can  not  yield  assent 
to  the  proposition  that  every  person  in  the 
service,  who  is  not  on  furlough  nor  under  arrest, 
and  who  dies  of  ordinary  death  in  the  course  of 
nature  not  traceable  to  mere  vice  or  other 
specific  misconduct,  in  other  words,  that  all 
cases  of  natural  death,  with  some  rare  excep- 
tions of  disease  of  provable  misbehavior,  are 
deaths  by  disease  contracted  in  the  line  of 
duty.  This  doctrine  is  not  a  thing  adjudicated , 
nor  as  a  question  of  novel  impression,  is  it  good 
law.  _  (7  Op.  Atty.  Gen.,  149,  156.) 

It  is  not  a  satisfactory  definition  to  say  that 
"every  officer  in  full  commission,  and  not  on 
furlough,  must  be  considered  in  the  line  of  his 
duty,  although,  at  the  moment,  no  particular 
or  active  duty  is  devolved  upon  him,"  and 
"the  same  of  a  soldier  (or  sailor)  who  is  kept 
in  pay, ' '  even  though  such  definition  be  quali- 
fied by  introducing  the  exceptions  of  "volun- 
tary absence,"  from  duty,  and  of  "vicious  or 
unjustifiable  conduct,"  while  on  duty.  This 
definition  is  faulty  by  reason  of  its  regarding 
the  "line  of  duty' '  as  an  absolute  status  of  the 
party  in  service,  when  it  is,  in  truth,  a  status 
relative  to  certain  specific  legal  conditio  s. 
(7  Op.  Atty.  Gen.,  149,  159.) 

The  words  "line  of  duty"  can  not  properly 
be  held  to  embrace  every  cause  of  death  not 
due  to  the  misconduct  of  the  deceased,  but  are 
used  by  Congress  in  a  more  limited  sense  in 
its  various  enactments  relating  to  the  disability 
or  death  of  persons  in  the  Army  or  Navy.  This 
conclusion  is  supported  by  the  fact  that  the  law 
providing  for  the  allowance  of  six  months'  pay 
to  the  widow  or  designated  beneficiary  of  de- 
ceased officers  or  enlisted  men  of  the  Navy 
[act  May  13,  1908,  35  Stat.,  128]  originally  ap- 
plied by  its  terms  to  cases  where  the  death  was 
due  to  "wounds  or  disease  contracted  in  line 
of  duty,"  but  by  act  of  August  22,  1912  [37 
Stat.,  329],  Congress  substituted  the  words 
"not  the  result  of  his  own  misconduct"  for 
the  words  "contracted  in  the  line  of  duty," 


this  amendment  being  made  for  the  express 
purpose  of  giving  the  law  a  broader  application. 
(See  Navy  Department's  circular  of  July  10, 
1914,  publishing  changes  and  corrections  in 
"Forms  of  Procedure  for  Courts  and  Boards 
in  the  Navy  and  Marine  Corps,  1910,"  pp. 
224,  225;  see  also  Naval  Courts  and  Boards, 
1917.  An  identical  change  had  previously  been 
made  in  the  similar  legislation  relating  to  the 
Army.     See  43  Cong.  Rec,  2688.) 

Rule  applicable  to  diseases,  same  as  in 
cases  of  injuries. — In  all  the  statutes  the 
condition  of  "line  of  duty''  stands  in  exactly 
the  same  relation  to  wounds,  to  drowning,  or 
other  casualty  and  to  personal  injuries  as  it 
does  to  diseases;  and  if  it  were  held  that  all 
possible  deaths  by  disease  happening  to  a 
person  in  the  ser\T[ce  are  of  disease  in  the  line 
of  duty  in  public  service,  it  must  in  like  manner 
be  held  that  all  possible  Avounds  and  casualties 
happening  to  a  person  in  the  serAdce  are  in  the 
line  of  duty  in  the  public  service.  That  the 
latter  is  not  so,  is  proved  by  what  is  the  well- 
established  and  well-understood  rule  of  law  in 
regard  to  contingencies  of  personal  rencounter 
producing  wounds  or  death.  (7  Op.  Atty. 
Gen.,  149,  157.) 

The  true  meaning  of  the  phrase  "line  of 
duty"  is  the  same  whether  the  cause  of  dis- 
ability or  of  death  to  be  considered  is  a  wound, 
a  casualty,  an  injury,  or  a  disease.  _  Whatever 
is  of  the  essence  of  "line  of  duty"  in  any  one 
of  these  cases  is  so  in  the  others.  It  being 
established  or  admitted  that  a  "wound"  or 
death  by  personal  violence,  in  order  to  become 
the  foundation  of  pension,  must  have  logical 
correlation  with  military  duty,  it  must  be  so 
in  the  case  of  "casualty"  and  of  "disease." 
(7  Op.  Atty.  Gen.,  149,  160.) 

The  same  rule  applies  to  wounds,  injuries, 
and  disease;  for  in  the  law  they  stand  together 
in  a  single  class.  The  result  is  that  neither 
injiury  nor  disease  can  authorize  the  granting 
of  a  pension  under  the  acts  of  Congress  unless 
it  is  caused  by  the  presence  of  its  victim  in 
the  line  of  duty  when  it  was  received  or  con- 
tracted.    (Rhodes  v.  U.  S.,  79  Fed.  Rep.,  740.) 


'line  of  duty' 


AS   DEFINED    BY  COURT   OF 

CLAIMS. 


"Line  of  duty"  is  synonymous  with  "not 
misconduct." — As  a  general  proposition,  a 
soldier  is  in  line  of  duty  until  separated  from  the 
service  by  death  or  discharge,  if  during  such 
time  he  is  submitting  to  all  of  its  laws  and 
regulations.  While  on  leave  of  absence  he  may 
be  ordered  to  active  duty  at  any  time,  and  to 
this  end  the  department  is  to  be  kept  con- 
stantly informed  as  to  his  address  and  all 
changes  in  same.  The  provisions  for  furloughs 
or  leaves  of  absence  are  a  part  of  the  discipli- 
nary regulations  of  the  military  service  and  no 
more  separate  a  man  from  the  service  than  an 
order  to  report  to  a  different  command.  The 
statute  confers  its  benefits  whenever  the  soldier 
dies  while  in  the  service  generally,  and  sub- 
mitting to  its  rules  and  regulations,  from 
wounds  or  disease  not  the  result  of  his  own 
misconduct.  The  amendment  of  the  Army 
death  gratuity  law  so  as  to  read  "not  the  result 
of   his   own    misconduct,"    instead    of    "con- 


610 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1451. 


tracted  in  the  Ime  of  duty,"  did  not  broaden 
the  application  of  the  original  statute  in  the 
least.  It  only  made  absolutely  certain,  in 
unmistakable  terms,  the  intent  which  the 
Court  of  Claims'  construction  afterwards  gave 
the  original  law,  and  thereby  reenforced  that 
construction.  It  is  not  necessaiy  to  decide 
in  any  case  when  and  where  the  soldier  con 
tracted  the  disease.  The  court  is  not  called 
upon  to  take  evidence  and  decide  when  the 
germs  of  typhoid  fever,  tuberculosis,  or  other 
disease  first  began  to  incubate.  Otherwise, 
the  evidence  might  show  that  a  soldier  engaged 
in  active  war  duties  for  years,  and  in  the  midst 
of  which  he  died  of  tuberculosis,  contracted 
the  disease  before  he  entered  the  sendee.  In 
this  case  the  soldier  died  while  on  leave  of 
absence  from  disease.  Held,  that  it  must  be 
regarded  as  '"disease  contracted  in  line  of 
duty,"  although  it  does  not  specifically  appear 
when  or  where  he  contracted  the  disease. 
(Moore  v.  U.  S.,_  48  Ct.  Cls.,  110.  But  see 
above,  under  "Line  of  Duty  Defined,"  sub- 
heading '"Intention  of  Congress". 

The  Attorney  General  is'unable  to  agree  that 
the  correct  rule  is  as  broad  as  the  language  of  the 
Court  of  Claims  makes  it.  That  construction 
makes  ""line  of  duty' '  practically  sjTionjTnous 
•ndth  "in  active  ser\ice"  and  robs  it  of  all 
meaning,  since  the  act  uses  both  expressions 
•with  the  e\'ident  intention  that  the  one  shall 
limit  the  other.  The  soldier  must  be  in  active 
ser\ice,  and  the  disease  must  be  contracted  in 
line  of  duty.  (32  Op.  Atty.  Gen.,  12,  22,  con- 
struing War  Risk  Ins.  Act  of  June  25,  1918,  sec. 
300,  40  Stat.,  611.) 

The  Attorney  General  agi-ees  with  the  Court 
of  Claims  that  "the  pro\'isions  for  furloughs  or 
leaves  of  absence  are  a  part  of  the  disciplinary 
pegulations  of  the  military  ser\ice,  and  no  more 
separate  a  man  from  the  service  than  an  order 
to  report  to  a  different  command."  (32  Op. 
Atty.  Gen.,  12,  25,  197.) 

For  discussion  of  the  foregoing  decision  of 
the  Court  of  Claims,  see  file  26250-1491:1, 
Oct.  29,  1918,  and  file  26250-1372,  Mar.  3.  1919. 

EVIDENCE    IN   LINE    OF   DUTY   CASES. 

Testimony  of  medical  experts. — Casualty 
is  a  question  of  fact,  to  be  proved  according  to 
the  ordinary  rules  of  evidence  and  to  the  rea- 
sonable satisfaction  of  the  inquiring  and  decid- 
ing mind.  That  mind  is  entitled  to  have  the 
full  facts  before  it,  and  is  not  bound  to  accept 
as  final  the  opinions  even  of  an  expert.  Such 
opinions  are  evidence,  but  neither  conclusive 
nor  exclusive  proof.  Every  person  of  judicial 
training  well  knows  that  the  opinions  of  med- 
ical or  other  scientific  or  practical  experts  often 
differ,  and  that  they  sometimes  err  in  a  body 
as  if  by  some  epidemic  contagion.  There  is  a 
judicial  case  involving  scientific  inquirj',  in 
the  printed  record  of  which  are  the  answers 
of  23  experts  to  the  same  question;  22  of 
them  give  decision  one  way,  and  a  single  one 
of  them  gives  a  reverse  decision:  and  in  the 
conclusion  it  was  proved  beyond  all  contro- 
versy, that  he  alone  was  right  and  that  all 
others  erred.  In  general,  the  opinions  of  an 
expert  are  of  more  or  less  weight  and  value, 
according  to  the  person's  constitution  of  mind. 


and  the  degree  of  completeness  of  the  collec- 
tion of  pertinent  facts  on  which  his  mind  acts. 
But  it  may  happen  that  the  great  body  of  the 
wisest  and  leamedest  men  of  science  shall  be 
possessed  by  an  erroneous  opinion,  while  the 
tnie  secret  of  nature  is  revealed  to  some  dis- 
coverer who  as  yet  is  unknown  to  the  world 
and  is  painfully  struggling  up  into  the  sun- 
light of  greatness  and  of  fame.  In  a  word,  no 
witness,  whether  expert  or  not,  can  rightfully 
claim  to  have  his  opinion  take  the  place  of  the 
facts,  and  so  to  substitute  his  judgment  for 
that  of  the  officer  who  is  A-ested  by  law  with 
the  authority  to  ('ecide.  (7  Op.  Atty.  Gen., 
150,  165.) 

The  question  was  presented  to  a  court  of 
inquiry  in  the  case  of  a  naval  officer  who  com- 
mitted suicide,  '"whether  he  was  insane  at  the 
time  of  committing  suicide,  and  if  so,  whether 
such  insanity  was  incident  to  the  seriice." 
Celebrated  medical  experts  testified  in  behalf 
of  petitioner  that  in  their  opinion  the  deceased 
was  insane,  his  insanity  being  due  partly  to 
the  nature  of  the  work  (indexing)  on  which 
he  had  been  engaged  for  some  time  prior  to  his 
death.  One  of  these  experts  testified  to  having 
himself  pert'ormed  work  of  the  same  character, 
and  was  asked  by  the  court:  '"Did  you  ever 
have  suicidal  impulses  or  fear  that  you  would 
have  them?"  To  which  he  replied:  "I  have 
had  the  fear  very  strongly  indeed  at  the  top  of 
high  buildings,  and  standing  alongside  the 
rushing  water  of  the  Yosemite  Falls  at  the  top 
of  the  cliff,  so  strongly  that  I  laid  down  on  the 
ground  and  so  retreated."  Another  expert 
witness  for  the  petitioner  having  also  testified  to 
his  opinion  that  the  deceased  was  insane,  was 
examined  by  the  court  in  part  as  follows:  '"Q. 
If  a  man  admitted  having  suicidal  impulses, 
such  as  jumping  from  high  buildings,  jumping 
into  waterfalls,  etc.,  to  such  an  extent  that  he 
avoided  places  of  this  sort,  and  lay  flat  on  the 
ground  when  in  such  positions,  would  you 
consider  him  as  having  a  mental  disorder,  and 
if  so,  what?  A.  Yes,  I  should  say  that  he  had 
a  mental  disorder  to  the  degree  of  his  phobia 
or  obsessions,  which  would  be  the  technical 
description  of  it.  Q.  Could  you  classify  this 
as  insanity  in  court?  A.  Technically  and  cor- 
rectly speaking,  yes.  Practically  you  would 
explain  what  you  meant  by  it.  "  In  recording 
its  finding  that  the  deceased  "was  not  insane 
at  the  time  of  committing  suicide, "  the  court 
remarked  with  reference  to  the  testimony  of 
these  witnesses  for  the  petitioner:  '"As  regards 
the  conclusions  to  be  drawn  from  the  existence 
of  these  minor  psychical  manifestations,  we 
are  confronted  by  the  picture  of  an  acknowl- 
edged authority  in  psycho-pathology  diagnos- 
ing a  mental  disorder  in  a  man  as  positively 
sane  as  Doctor  *  *  *.  It  is  true  that  this 
diagnosis  was  qualified,  yet  it  shows  the  diffi- 
culty of  distinguishing  in  a  medico-legal  way 
those  conditions  which,  while  not  strictly 
normal,  are  nevertheless  of  insufficient  severity 
to  permit  their  classification  under  the  head 
of  insanity."     (Ct.  Inq.  Rec.  No.  5777.) 

Where  the  proofs  are  balanced,  pre- 
sumption shoiold  be  in  favor  of  line  of 
duty.— The  question  of  the  quality  or  degree 
of  proof  requisite,  is  a  question  clearly  for  the 
conscience  of   the  deciding  officer.     If  called 


611 


Sec.  1451. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


upon  to  suggest  any  nile  for  the  guidance  of  his 
discretion  in  the  matter,  it  would  be  obvioua 
to  say  that  the  pension  laws  ai'e  beneficial  in 
their  nature,  and  therefore  to  be  construed 
beneficially  in  matters  of  ine\dtable  doubt. 
In  this  \'io\Y,  the  mere  fact  of  an  officer  having 
died  in  the  service,  and  with  utter  absence  of 
proof  as  to  the  origin  or  cause  of  his  death,  is 
not  sufficient  to  raise  a  pension;  but  where  the 
proofs  are  balanced,  and  it  is  impossible  to 
determine  by  them  as  to  the  fact  of  "disease 
contracted,"  and  the  fact  of  "line  of  duty" 
found  in  juxtaposition,  whether  this  colloca- 
tion be  of  contiguity  only,  or  of  actor  and  sub- 
ject— of  contemporaneity  or  sequence  only,  or 
of  cause  and  consequence — it  would  be  reason- 
able to  presume  in  favor  of  pension;  and  also  to 
presume  in  favor  of  pension  in  cases  where  the 
line  of  duty  appears  to  enter  potentially  into 
the  cause  of  the  death,  although  it  should 
happen  not  to  be  certainly  provable  that  it  was 
the  exclusive  or  predominant  cause;  so  that  a 
possible  error  of  absolute  and  mere  uncertainty 
shall  not  be  suffered  to  defeat  the  liberal  in- 
tentions and  beneficial  policy  of  the  Govern- 
ment.    (7  Op.  Atty.  Gen.,  150,  166.) 

Evidence  in  cases  of  suicide. — Suicide 
is  not  of  itself  a  pensionable  cause  of  death  and 
if  the  suicide  is  alleged  to  have  been  produced 
by  insanity,  and  thus  insanity  be  put  for^vard 
as  the  causa  causans,  then  it  must  be  shown 
that  the  insanity  was  the  result  of  or  incidental 
to  actsof  duty.     (7  Op.  Atty.  Gen.,  150,  155.) 

Suicide  is  so  unlikely  a  result  of  an  act  of 
duty  that  the  presumption  in  such  cases  must 
be  against  line  of  duty  in  the  absence  of  evi- 
dence affirmatively  showing  that  it  was  caused 
by  the  service.     (File  26250-230:3.) 

See  also  above,  "Testimony  of  medical  ex- 
perts;" and  see  below,  "Specific  cases  involv- 
ing 'line  of  duty'  or  'incident  of  the  service.'  " 

Burden  of  proof. — When  an  officer  is 
examined  for  retirement,  it  is  incumbent  upon 
him  to  show,  in  order  to  secure  a  report  which 
will  entitle  him  to  be  placed  on  the  retired  list, 
rather  than  on  the  retired  list  on  furlough  pay, 
that  his  incapacity  was  the  result  of  some  in- 
cident of  the  service.  (Bro\vn  v.  U.  S.,  113  U. 
S.,  568,  573.)" 


SPECIFIC  CASES  INVOLVING       LINE  OP  DUTY ' 
"iNCinENT   OP   THE    SERVICE." 


OB 


Injury  from  accidental  causes  while  on 
leave  of  absence. — Decedents,  while  on  leave 
of  absence,  went  to  a  hotel  together,  engaged  a 
room,  and  were  later  found  asphyxiated  as  the 
result  of  a  gas  jet  in  the  room  having  been  left 
turned  on  and  unlighted  when  they  retired. 
Held,  not  line  of  dutv.  (File  26250-238,  239, 
and  240.) 

Deceased,  while  on  leave  of  absence  and  not 
performing  any  act  connected  vdih  the  service, 
was  run  over  by  a  train.  Held,  not  line  of 
duty.     (File  26250-228.) 

An  enlisted  man  on  authorized  leave  of  ab- 
sence from  his  ship  at  Brest,  France,  was  injured 
while  en  route  to  Paris  by  the  accidental  dis- 
charge of  a  pistol  in  the  hands  of  a  soldier  riding 
beside  him  on  the  train.  Held,  line  of  duty. 
This  man  was  in  Europe  solely  because  he  was 
in  active  ser\'ice  under  the  Navy  Department. 


As  part  of  the  disciplinary  regulations  of  the 
service  he  was  given  a  temporary  leave  of  ab- 
sence and  permitted  to  visit  Paris.  On  the 
way  to  Paris  the  accident  occurred  and  he  was 
injured  just  as  any  other  passenger  on  the  train 
might  have  been  injured.  There  was  no  inter- 
vening cause  for  which  he  was  resiDonsible. 
(32  Op.  Atty.  Gen.,  193,  198.) 

Attempting  to  save  life  -while  on  lib- 
erty.— An  officer  of  the  Naval  Reserve  Force 
while  on  leave  of  absence  was  injured  by  a  pistol 
shotin  attempting  to  assista  woman  in  distress. 
Held,  not  in  line  of  duty,  because  due  to  an 
intervening  cause  having  no  connection  with 
the  ser%'ice.  It  resulted  from  the  performance 
of  a  duty  which  he  owed  not  as  a  soldier  but  as 
a  member  of  societv.  (32  Op.  Atty.  Gen.,  193, 
198.     But  see,  contra,  C.  M.  O.  71,"  1918,  p.  19.) 

Injury  due  to  performance  of  specific 
act  of  duty  while  on  liberty. — An  enlisted 
man,  while  on  liberty,  was  stabbed  by  a 
drunken  cabman  while  endeavoring  to  get  an 
injured  shipmate  back  to  his  vessel,  an  act  in 
the  line  of  his  duty  performed  while  on  liberty. 
Held,  line  of  duty.     (File  9331,  Apr.  10,  1908.) 

Status  during  intervals  between  hours 
of  duty. — A  yeoman  in  the  Na^y  on  duty  at  the 
U.  S.  Naval  Headquarters,  London,  England, 
was  killed  by  a  motor  bus  in  the  immediate 
vicinity  of  said  headquarters  but  about  three 
hours  after  he  had  completed  his  duty  for  the 
day.  Held,  line  of  duty.  A  soldier  in  camp 
is  not  always  occupied  in  the  actual  perform- 
ance of  some  military  duty.  During  periods 
of  rest  he  is  more  or  less  free  to  walk  around 
within  the  limits  of  the  camp,  ^^'hen  assigned 
to  duty  not  in  a  camp,  but  in  a  city,  he  has  like 
fi-eedoin,  and  was  just  as  much  in  line  of  duty 
as  if  walking  around  in  camp,  and  such  an 
accident  as  is  liable  to  happen  to  any  one  pur- 
suing such  a  course  is  the  logical  incident  of  his 
ser^dce.     (32  Op.  Atty.  Gen.,  193,  196.) 

Status  while  traveling  from  and  return- 
ing to  post  of  duty. — "All  the  consequences 
of  the  absence  of  an  officer  or  a  soldier  from  his 
post  of  duty  on  his  own  motion  for  his  own 
purposes  of  business  or  of  pleasure  must  be 
regarded  as  outside  the  line  of  duty.  While 
traveling  from  and  returning  to  the  post  of  duty 
on  an  ordinary  furlough,  given  for  such  purposes, 
he  is  at  his  own  risk  as  to  causes  of  disability 
to  which  he  may  be  subjected."  (4  P.  D., 
54;  7  P.  D.,  102;  16  P.  D.,  21;  House  Doc.  No. 
5,  54th  Cong.,  2d  sess.,  p.  74.) 

A  soldier,  in  attempting  to  pass  the  guard 
with  a  written  permit,  was  injured  by  the 
sentinel.  If  the  pass  was  given  to  him  solely 
for  the  purpose  of  enabling  him  to  attend  to  his 
private  affairs,  and  if,  at  the  time  he  was 
injured,  he  was  going  about  his  private  busi- 
ness, he  can  in  no  sense  be  considered  as  in  the 
public  ser^dce.  (7  Op.  Atty.  Gen.,  149,  155; 
2  Op.  Atty.  Gen.,  590.) 

When  a  person  returning  from  leave  or  lib- 
erty, and  prior  to  expiration  thereof,  enters  a 
boat  provided  by  the  Government  for  his  trans- 
portation back  to  his  vessel  he  is  once  more 
within  the  control  of  the  naval  authorities,  and 
if  killed  or  injured  without  the  intervention  of 
any  cause  for  which  he  was  responsible,  a  finding 
of  line  of  duty  would  be  proper.  But  if  he  is 
returning  to  his  vessel  in  a  private  conveyance 


612 


The  Navy. 


Pt.a.  REVISED  STATUTES. 


Sec.  1451. 


of  hia  own  selection  he  would  not  be  in  a  line 
of  duty  status  unless  actually  engaged  in  the 
performance  of  an  act  of  duty.  (See  Navy 
Department's  circular  of  July  10,  1914,  pub- 
lishing changes  and  corrections  in  "Forms  of 
Procedure  for  Courts  and  Boards  in  the  Navy 
and  Marine  Corps,  1910,"  pp.  224,  225;  see 
also  Naval  Courts  and  Boards,  1917.) 

A  man  retvnning  to  liis  post  of  duty  after  an 
ordinary  furlough,  and  killed  in  consequence 
of  the  automobile  in  which  he  was  traveling 
being  struck  by  a  railroad  train,  was  in  the  line 
of  duty  at  the  time  of  death.  It  was  the  duty 
oi  the  man  to  return  to  his  post  before  expira- 
tion of  his  furlough.  He  was  doing  this  when 
the  accident  happened,  and  there  was  no  inter- 
vening cause  for  which  he  was  responsible. 
(32  Op.  Atty.  Gen.,  193,  197.) 

Homicide. — A  yeoman  (female)  in  the  Naval 
Reserve  Force  was  killed  by  her  husband  while 
she  was  returning  to  her  home  upon  the  com- 
pletion of  her  duty  for  the  day.  Her  death  was 
not  the  result  of  her  oAvn  misconduct.  But  it 
was  not  in  line  of  duty,  as  it  resulted  from 
jealousy  on  the  part  of  her  husband;  in  other 
words,  it  grew  out  of  the  domestic  relations  of 
the  yeoman,  entirely  separate  and  distinct 
from  her  relations  to  the  Government.  (32 
Op.  Atty.  Gen.,  193,  196.) 

Deceased,  while  on  liberty,  was  murdered  by 
a  sliipmate  in  consequence  of  some  difficulty 
between  the  two  men  of  a  wholly  personal 
nature.  Held,  not  line  of  duty.  (File  26250- 
214.) 

Liberty  granted  for  specific  purpose 
encouraged  by  Navy  Regulations. — If  a 
man  is  given  permission  to  go  on  shore  for  the 
express  purpose  of  engaging  in  athletic  sports 
or  exercises  encouraged  by  the  Navy  Regula- 
tions, or  permission  to  go  swimming  or  boating, 
and  is  injured  or  killed  without  negligence  or 
other  cause  for  which  he  was  responsible,  the 
finding  should  be  line  of  duty,  ^^'here,  how- 
ever, a  man  is  granted  liberty  for  his  own 
purposes,  and  while  on  liberty  goes  in  swim- 
ming and  is  drowned,  the  mere  fact  that 
s'wimming  is  encouraged  by  the  regulations  is 
not  sufficient  ground  for  holding  that  his  death 
occurred  in  line  of  duty.  In  such  a  case  the 
general  rule  applies  and  it  must  be  held  that 
his  death  resulted  from  the  exercise  of  his 
private  rights  and  was  not  caused  by  "an  act 
of  duty  performed."  (File  26250-277:1;  14  P. 
D.,  114.  See  Navy  Department's  circular  of 
July  10,  1914,  publishing  changes  and  correc- 
tions in  "Forms  of  Procedure  for  Courts  and 
Boards  in  the  Navy  and  Marine  Corps,  1910," 
pp.  224,  225;  see  also  Naval  Courts  and  Boards, 
1917.  But  see  32  Op.  Atty.  Gen.,  12,  193, 
noted  above.) 

Death,  as  result  of  medical  treatment. — 
An  enlisted  man,  suffering  from  a  disease  which 
resulted  from  his  o^\ti  misconduct,  died  in  con- 
sequence of  sah'arsan  poisoning  resulting  from 
medical  treatment  administered  by  proper 
medical  authority.  Held,  line  of  duty;  death 
was  not  the  result  of  the  disease  but  of  the  medi- 
cal treatment  for  the  disease.  (File  26543-213, 
Apr.  29,  1918,  C.  M.  0.  37,  1918,  p.  23.  Com- 
pare 32  Op.  Atty.  Gen.,  24,  199.) 

Exercising. — Sirrgeon  Thomas  Ililand  was 
found  by  a  retiring  board,  March  1,  1883,  to 


be  incapacitated  for  active  service  by  reason 
of  the  amputation  of  his  right  leg,  as  the  result 
of  an  injury  caused  by  taking  horseback  exer- 
cise in  Chile,  which  was  shown  to  be  necessary 
for  his  health,  he  having  been  ill.  The  injury 
was  held  to  have  "originated  in  the  line  of 
duty  "  (See  Ret.  Bd.  Rec,  vol.  21,  1881-82, 
case  No.  284.)  _ 

"As  swimming  is  an  exercise  prescribed  by 
the  regulations  in  the  routine  of  exercises  and 
drills, ' '  where  an  ordinary  seaman  was  drowned 
while  in  swimming,  and  was  not  guilty  of  con- 
tributory negligence  or  gross  negligence,  "his 
death  occurred  in  line  of  duty."  (File  2195-63, 
June  7,  1907.) 

Harrison  Henry  Foster,  mess  attendant  third 
class,  died  as  the  result  of  injuries  received 
during  a  boxing  match  on  board  the  U.  S.  S. 
Vermont,  June  31,  1909.  The  board  of  inquest 
reported  that  Foster  "died  in  line  of  duty 
*  *  *  and  that  no  blame  is  attached  to  any 
person  or  persons  connected  with  this  occiu-- 
rence."  The  report  of  the  board  was  "not 
approved "  by  the  commander  in  chief  of  the 
U.  S.  Atlantic  Fleet.  The  disapproval,  how- 
ever, evidently  related  to  the  responsibility 
for  Foster's  death,  and  notto  the  findingthatit 
was  in  line  of  duty.  The  death  gratuity  pro- 
vided by  the  act  of  May  13,  1908  (line  of  duty), 
was  paid  to  Foster's  beneficiary  by  check  No. 
72274,   of  September  21,   1909. 

In  the  case  of  A.  J.  Ilorgan,  oiler,  U.  S. 
Navy,  the  question  arose  whether  an  in- 
jury to  his  teeth  during  a  football  game  on 
November  23,  1907,  was  "in  line  of  duty." 
The  Bureau  of  Na\igation  made  the  following 
report  in  the  case:  "The  policy  of  the  Navy 
Department  is  to  foster  athletics  in  the  Navy, 
and  the  bureau  considers  that  footl)all  and 
other  athletic  contests  of  enlisted  men  on  shore 
are  conducive  to  theii'  physical  development 
and  well-being  and  better  fit  them  for  the 
performance  of  their  duties  on  board  ship,  and 
that  injuries  received  in  these  contests  may  be 
but  justly  considered  in  the  line  of  duty." 
The  papers  were  forwarded  to  the  Bureau  of 
Medicine  and  Surgery  January  3,  1908  (file 
458-5),  with  the  follo\ving  indorsement: 
"The  department  considers  that  the  %vithin- 
mentioned  injury  occurred  in  the  line  of  duty." 

A  board  of  inquest,  August  18,  1909  (file 
26250-89),  in  the  case  of  Joseph  Martin  Seithel, 
coal  passer,  U.  S.  Navy,  found  that  the  de- 
ceased "died  from  injuries  received  while  ex- 
ercising in  the  gymnasium;  that  the  deceased 
met  his  death  in  line  of  duty,  and  that  no  one 
is  in  any  way  responsible  for  same." 

An  injury  suffered  by  a  person  othermse  in 
the  line  of  duty  shall  not  be  held  to  have  been 
suffered  "not  in  the  line  of  duty"  for  the 
reason  that  the  negligence  of  such  person  con- 
tributed to  the  injury,  or  that  it  was  the  result 
of  participation  in  some  form  of  lawful  sport  or 
recreation  not  contrary  to  regulations  or  orders. 
(32  Op.  Atty.  Gen.,  14,  24.) 

Prisoner. — While  a  prisoner  may  be  injiu-ed 
or  killed  in  line  of  duty,  as  shown  by  the 
examples  given  by  the  Attorney  General  in 
his  opinion  [quoted  above,  under  "May  be 
in  line  of  duty  although  not  on  duty"],  such 
cases  must  be  exceptional  ones  rather  than 
the  rule.     Thus,  where  an  enlisted  man  is  per- 


613 


Sec.  1451. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


forming  hard  laV>or  under  sentence  of  general 
court-martial,  and  an  injury  received  by  him 
is  wholly  due  to  the  execution  of  such  sen- 
tence, it  can  not  be  held  line  of  duty.  (15 
P.  D.,  54;  5  P.  I).,  151.)  Tf  an  enlii^ted  man 
is  arrested  or  imprisoned  but  on  trial  is  ad- 
judged not  guilty,  a  disease  incurred  during 
nis  arrest  and  imprisonment  is  within  the 
line  of  duty  (4  P.  D.,  103).  If  the  man  died 
while  awaiting  trial,  a  disease  so  contracted 
is  held  to  have  been  incm-red  in  line  of  duty. 
(14  P.  D.,  213).  But  in  a  case  where  a  private 
in  the  Marine  Corps  was  burned  to  death  while 
in  confinement  by  the  civil  authorities  await- 
ing trial,  and  the  evidence  showed  that  his 
imprisonment  was  the  result  of  misconduct 
(drunkenness)  while  on  liberty,  his  death  was 
held  not  to  have  occurred  in  line  of  duty. 
(File  26250-218.  Compare  file  26285-30,  Apr. 
7,  1909;  file  2654.3-20,  Jan.  28,  1909.  Navy 
Department's  circular  of  July  10,  1914,  publish- 
ing changes  and  corrections  in  "Forms  of  Pro- 
cedure for  Courts  and  Boards  in  the  Navy  and 
Marine  Corps,  1910,"  pp.  224,  225;  see  also 
Naval  Courts  and  Boards,  1917,  p.  290;  and 
C.  M.  O.  71,  1918,  p.  20,  stating  that  the  de- 
cision of  Apr.  7,  1909,  is  no  longer  in  force.) 

A  soldier  who  died  while  in  confinement  in 
pursuance  of  the  sentence  of  a  court-martial, 
did  not  die  "while  on  duty,"  within  the  mean- 
ing of  the  act  of  March  3,  1899  (30  Stat.,  1224, 
1225),  which  provides  for  the  payment  of 
transportation  and  bvu-ial  expenses  of  soldiers 
who  die  "while  on  duty  away  from  home." 
(6  Comp.  Dec,  453.) 

"Suppose  that  on  march  in  camp  or  garrison, 
or  on  a  voyage,  an  officer  is  put  in  arrest  on 
charges.  In  the  first  place  those  charges  may 
not  be  substantiated,  and  then  it  would  be 
manifestly  unjust  that  the  mere  fact  of  his 
being  charged  should  operate  to  deprive  him- 
self or  his  family  of  pension.  Or,  while  he  is 
in  arrest,  he  dies  of  camp  fever  or  ship  fever, 
and  then  it  is  unjust  to  presume  a  criminality 
not  proved  in  the  course  of  law.  Or,  whether 
guilty  or  not,  if  he  die  of  wounds,  casualty,  or 
disease  contracted  while  in  arrest,  still  the 
death  is  not  the  consequence  of  the  arrest,  but 
of  the  public  service.  If  not  dying  in  arrest, 
and  on  trial  being  convicted  and  sentenced, 
that  sentence  be  of  death  or  dismissal  for  some 
grave  military  crime,  that  of  course  terminates 
the  question  of  pension;  but  if  his  offence  be  a 
light  one,  with  a  sentence  of  reprimand,  for 
instance,  and  he  shall  have  happened  to  con- 
tract disability  or  mortal  disease  while  in 
arrest,  as  by  the  hazards  of  a  long  march  or 
voyage,  it  seems  not  just  to  add  to  his  legal 
sentence  the  serious  indirect  aggravation  of 
incapacity  of  pension."  (7  Op.  Atty.  Gen., 
149, 164.) 

When  confined  under  sentence  one  becomes 
a  prisoner  and,  for  the  time  being,  ceases  to  be 
a  soldier  employed  in  active  service.  Not  so 
as  to  one  under  strict  confinement  or  arrest 
invoHang  suspension  from  duty  while  awaiting 
trial  and  disposition  of  his  case,  even  if  the 
trial  results  in  conviction,  provided  he  is  not 
resisting  lawful  arrest.  (32  Op.  Attv.  Gen., 
14,  24.) 

Violation  of  duty. — Death  resulted  from 
injuries  received   by   the   deceased  while  on 


board  ship  in  a  duty  status,  "entering  a  bunker 
and  striking  a  match  there,"  which  acts  "were 
both  against  orders."  Held,  that  death  was 
the  result  of  "misconduct  or  violation  of  duty," 
and  was  not,  therefore,  the  result  of  an  injury 
received  in  the  line  of  duty.     (File  26543-55.) 

Horseplay.  —An  enlisted  man  is  not  in  line 
of  duly  while  engaged  in  scuffling  or  squab- 
bling with  his  companions,  or  voluntarily  en- 
gage<l  in  what  is  commonly  known  as  "horse- 
play," although  at  the  time  on  board  the  ship 
to  which  he  is  attached.  (5  P.  D.,  47;  6  P.  D., 
22;  14  P.  D.,  81;  14  P.  D.,  506;  Rhodes  v. 
U.  S.,  79  Fed.  Rep.,  740;  file  25250-66.  But 
see  32  Op.  Atty.  Gen.,  12,  noted  above.) 

Overdose  of  poison. — "It  has  repeatedly 
been  held  that-  where  the  death  of  the  soldier 
*  *  *  was  caused  by  an  overdose  of  a  nar- 
cotic or  other  poison,  which  had  been  either 
prescribed  originally  by  a  physician  in  the 
United  States  service,  or  taken  upon  the  sol- 
dier's own  responsibility  through  mistake, 
and  with  no  suicidal  intent,  such  death  cause 
can  not  be  accepted  as  a  comj^etent  basis  for 
claim."  (1  P.  D.,  Ill,  case  of  Travers,  hospi- 
tal steward;  file  26250-288:2,  case  of  Pasteur, 
hospital  apprentice.) 

Disability  existing  prior  to  enlistment. — 
Death  or  injury  while  on  duty,  resulting  from 
disability  existing  prior  to  enlistment,  does 
not  come  within  the  "Line  of  duty"  category. 
(16  P.  D.,  172.) 

However,  when  a  disability  which  originated 
prior  to  enlistment,  but  was  apparently  cured 
prior  to  and  at  the  date  of  enlistment,  is  revived 
and  aggravated  as  the  immediate  result  of  an 
accident  or  of  an  incident  in  the  line  of  duty,  the 
injurious  consequences  of  such  aggravation  may 
amount  to  line  of  duty.     (3  P.  D.,  41.) 

In  the  latter  case,  it  is  necessary  to  establish 
some  cause  or  injury  resulting  from  or  incurred 
in  service  in  line  of  duty  sufficient  to  produce  a 
recurrence  of  said  disability — some  cause  with- 
out which  the  recuiTence  would  not  have 
happened — and  not  merely  natural  aggravation 
of  an  already  existing  disability.  (3  P.  D., 
187.) 

For  the  purpose  of  compensation  under  the 
War  Risk  Insurance  Act  for  death  or  disability 
resulting  from  personal  injury  suffered  or 
disease  contracted  in  the  line  of  duty,  the 
"ofiicer,  enlisted  man,  or  other  member  shall 
be  held  and  taken  to  have  been  in  sound  con- 
dition when  examined,  accepted,  and  enrolled 
for  service."  (Act  June  25,  1918,  sec.  300,  40 
Stat.,  611,  amending  act  Oct.  6, 1917,  sec.  300, 
40  Stat.,  405.) 

Predisposition  to  disease  is  no  bar  to 
pension  if  the  disease  did  not  develop  until 
after  claimant's  admission  to  the  service. 
(3  P.  D.,  228;  16  P.  D  ,  413.) 

Suicide. — In  a  proper  case,  death  by  suicide 
may  be  held  to  have  occurred  in  the  line  of 
duty,  but  the  facts  supporting  such  a  conclu- 
sion must  be  definitely  ascertained  and  estab- 
lished. (File  26250-86;  1  P.  D.,  Ill;  1  P.  D.. 
108;  5  P.  D.,  32;  17  P.  D.,  50.) 

In  the  case  of  F.  C.  McKeehan,  chief  yeoman, 
U.  S.  Navy,  the  board  of  inquest  reported, 
July  13,  1909,  that  the  deceased  "committed 
suicide  by  shooting  himself  through  the  head 
while  temporarily  insane. ' '     The  medical  mem- 


614 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1451. 


ber  of  the  board  stated  that  "There  is  good 
evidence  that  the  injury  was  in  line  of  duty,  as 
the  patient  was  insane  at  the  time  of  committing 
the  act.  He  shot  himself  through  the  head 
while  temporarily  insane  from  close,  constant, 
and  continuous  application  to  the  books  and 
records  of  this  ship.  He  evidenced  symptonis 
of  marked  depression  verging  on  melancholia 
before  the  arrival  of  the  ship  in  San  Francisco." 
The  record  was  returned  for  an  expression  of 
the  board's  opinion  as  to  how  far  the  death  of 
McKeehan  was  due  to  any  act  of  duty.  On 
August  14,  1909,  the  board  reassembled  and 
made  the  following  report:  "The  board  con- 
curs in  the  opinion  expressed  by  Dr.  Bacon, 
assistant  surgeon,  U.  S.  Navy,  and  believes 
that  the  death  of  McKeehan,  chief  yeoman, 
U.  S.  Navy,  was  directly  due  to  the  worries 
and  exactions  of  his  official  duties  for  which 
duties  the  board  feels  that  he  was  never 
mentally  qualified."  After  consideration  by 
the  Department,  the  record  was  again  returned 
to  the  board  with  the  following  indorsement  by 
the  Acting  Secretary  of  the  Navy,  September 
3,  1909:  "It  would  appear  that  there  is  a 
decided  lack  of  definite  and  authoritative 
evidence  in  the  record  to  warrant  the  statement 
of  opinion  that  McKeehan's  death  was  'directly 
due  to  the  worries  and  exactions  of  his  official 
duties  for  which  duties  the  board  feels  that  he 
was  never  mentally  qualified.'  The  main 
point  in  question,  in  view  of  the  board's  frnding 
that  McKeehan  'committed  suicide  by  shooting 
himself  through  the  head,'  is  whether  the  cause 
of  the  suicide  was  directly  traceable  to  the 
service.  Therefore,  it  is  directed  that  the  board 
be  ordered  to  reconvene  and,  after  a  further  and 
more  complete  investigation  upon  the  above- 
mentioned  point  of  information  required,  ren- 
der their  opinion  after  spreading  upon  the 
record,  full  and  completely,  the  reasons  leading 
to  the  formulation  of  such  opinion."  The 
board  thereupon  reconvened  and  reported  that: 
"After  examining  witnesses  'who  were  most 
closely  in  touch,  either  personally  or  officially, 
with  Mr.  McKeehan,  the  board  adheres  to  its 
former  opinion  that  McKeehan's  death  was 
directly  due  to  the  worries  and  exactions  of 
his  official  duties,  for  which  duties  the  board 
feels  that  he  was  never  mentally  qualified. 
Although  the  board  is  of  the  opinion  that 
McKeehan  might  have  taken  his  life  at  some 
time  later,  it  is  of  the  opinion  that  the  direct 
cause  was  the  worry  about  his  work  not  being 
properly  performed,  his  fear  of  being  disrated, 
and  also  his  worry  about  his  physical  condi- 
tion, all  of  which  are  fully  brought  out  in  the 
testimony.' "  The  finding  of  the  board  was 
approved  by  the  Department,  October  25, 
1909.     (File  26250-86.) 

In  the  case  of  John  Ij.  Cunningham,  master 
at  arms,  first  class,  (file  26250-132),  the  board 
of  inquest  reported,  January  15,  1910,  that  the 
deceased  "died  a  natural  death,  caused  in  part, 
however,  by  a  pulmonary  and  cerebral  oedema, 
subsequent  to  attempt  at  suicide.  The  death 
of  J.  L.  Cunningham,  master  at  arms,  first  class, 
United  States  Navy,  was  in  the  line  of  duty, 
following  attempt  at  suicide  during  an  attack 
of  melancholia,  which  was  incident  to  over  13 
years  in  the  United  States  Navy." 


Refusal  of  ofla.cer  to  submit  to  opera- 
tion.^— The  finding  of  a  retiring  board  that  the 
present  incapacity  of  an  officer  "is  due  to  the 
fact  that  he  will  not  submit  to  an  operation 
recommended  by  responsible  medical  ofiicers  of 
the  Navy,  and  is  therefore  not  the  result  of  an 
incidentof  the  service,"  should  be  disapproved. 
The  officer  was  injured  by  a  fall  in  leaving  a 
recruiting  station  where  he  was  on  duty,  re- 
sulting in  hernia;  he  was  operated  on  the  next 
day  at  a  local  hospital;  thereafter  he  was  in- 
capacitated for  duty,  the  medical  members  of 
the  board  finding  that  his  incapacity  consisted 
of  a  chronic  intestinal  obstruction,  probably 
due  to  adhesions,  and  possible  chronic  ap- 
pendicitis, the  chronic  intestinal  obstruction 
having  followed  an  operation  for  strangulated 
inguinal  hernia,  right  side,  the  said  hernia  hav- 
ing been  contracted  in  line  of  duty.  In  the 
earlier  or  preliminary  part  of  the  finding,  the 
board  says,  after  stating  the  cause  of  this  officer's 
present  condition,  "that  this  condition  could 
probably  be  relieved  by  an  operation  *  *  *." 
Here,  as  well  as  throughout  the  testimony  and 
findings  of  previous  boards  in  the  case,  there  is 
no  assurance  as  to  relief.  Various  expressions 
are  used ,  indicating  a  caution  of  expression  on 
this  point  which  in  such  cases  as  this  is  prob- 
ably reasonable;  but  which  are,  nevertheless, 
significant.  The  evidence  given  before  the 
board  does  not  show  that  the  operation  would  be 
a  harmless  or  minor  one.  On  the  contrary, 
from  the  expressions  relative  to  the  matter  as 
given  in  the  testimony  of  the  medical  officers,  it 
appears  to  be  one  of  considerable  gravity.  A 
capital  operation  is  said  to  be  "one  involving 
some  danger  to  life;"  a  major  operation  is  de- 
fined as  "an  important  and  serious  opera- 
tion;" and  a  minor  operation  as  "a  compara- 
tively trivial"  one.  Anj^  surgical  procedure 
that  involves  an  opening  into  one  of  the  large 
cavities  of  the  body  is  presumably  serious,  es- 
pecially as  in  this  case  when  there  is  much 
doubt  as  to  the  exact  nature  of  the  ailment. 
In  this  case  the  procedure  advised  is  one  at- 
tended with  sufficient  risk  to  take  it  out  of  the 
class  of  minor  operations  and  put  it  into  the 
class,  at  least,  of  major  if  not  of  capital  opera- 
tions. No  law  or  regulation  of  the  Navy  is 
known  which  applies  directly  to  the  condi- 
tions involved  in  the  case  here  under  con- 
sideration; nor  is  any  custom  or  usage  known 
which  would  require  that  an  officer  submit  to  a 
major  or  capital  operation.  Under  such  cir- 
cumstances it  is  not  perceived  upon  what  exact 
ground  the  officer  should  be  compelled  to  sub- 
mit to  the  operation  advised.  Held,  that  the 
finding  should  be  disapproved,  the  operation 
being  one  to  which  the  officer  should  not  be  re- 
quired to  submit.  The  result  arrived  at  does 
not  necessitate  an  inquiry  into  the  question 
whether,  if  the  disability  of  this  officer  was  one 
which  required  for  his  relief  an  operation  to 
which  he  might  be  compelled  to  submit,  he 
should  under  such  circumstances  be  regarded 
as  suffering  from  a  disability  not  the  result  of 
an  incident  of  the  service.  A  review  of  the 
opinions  of  Attorneys  General  (1  Op.  Atty. 
Gen.,  181,  7  Op.  Atty.  Gen.,  149,  17  Op.  Atty. 
Gen.,  172)  relating  to  the  subject  of  "line  of 
duty,"  does  not  appear   to   show   that  such 


615 


Sec.  1462. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


might  bo  the  case.  If  the  oilicer  in  this  case 
should  die  at  the  present  time,  without  having 
submitted  to  the  ad\'ised  operation,  it  could 
hardly  be  held ,  if  his  demise  was  due  to  his  in- 
jury in  question,  that  his  death  was  not  the 
resultofan  incident  of  the  service.  (File2G253- 
98,  May  17, 1910.  See,  also,  note  to  sec.  1368 
R.  S.,  under  "Compulsory  medical  treatment 
of  persons  in  Navy.") 


Ordered  to  hospital  while  on  furlough. — 
As  the  furlough  of  a  soldier  is  terminated  by 
being  ordered  by  competent  authority  to  a 
hospital  for  treatment ,  he  is  while  in  the  hos- 
pital in  obedience  to  said  orders  "on  duty" 
within  the  meaning  of  the  laws  allowing  pay- 
ment of  expense  of  his  medical  care  and 
treatment.  (12  Comp.  Dec,  562;  compare  6 
Comp.  Dec,  444.) 


Sec.  1452.  [Record  of  proceedings;  revision  by  President.]  A  record  of 
the  proceedings  and  decision  of  the  board  in  each  case  shall  be  transmitted 
to  the  Secretary  of  the  Navy,  and  shall  be  laid  by  him  before  the  President 
for  his  approval  or  disapproval,  or  orders  in  the  case. —  (3  Aug.,  1861,  c.  42, 
s.  23,  V.  12,  p.  291.) 

retiring  board,  still  it  would  be  inoperative  to 
effect  his  retirement  until  approved  by  the 
President.     (21  Op.  Atty.  Gen.,  385.) 

No  power  of  review  exists  after  Presi- 
dent's approval. — Whether  the  finding  of  the 
board  was  warranted  by  the  evidence  adduced 
is  an  Inquiry  that  can  not  now  be  gone  into, 
as  no  power  of  review  over  the  proceedings  of 
the  retiring  board  exists  by  law  where  its 
finding  has  been  once  approved  by  the  Presi- 
dent and  his  "orders  in  the  case"  executed. 
The  result  is  that  the  objection  urged  by  Pay- 
master Rodney  can  not  be  considered  in  con- 
nection with  any  part  of  the  record  of  proceed- 
ings of  the  board  except  the  finding,  and  this 
affords  no  foundation  for  such  objection. 
Accordingly,  held  that  there  is  no  legal  ground 
for  setting  aside  the  proceedings  of  the  retiring 
board  and  revoking  the  order  of  retirement  in 
this  case.  (15  Op.  Atty.  Gen.,  446;  see  also 
Dig.  Comp.  Dec,  493,  noted  under  sec.  1451, 
R.  S.,  "Findings  not  subject  to  review  by 
accounting' officers;"  and  see  notes  to  sees.  1454 
and  1457,  R.  S.) 

Newly  discovered  evidence. — Where  an 
officer  was  found  by  a  board  of  examination 
to  be  physically  qualified  for  promotion,  but 
deficient  in  professional  qualifications,  and  it 
afterwards  developed  that  he  was  at  the  time  of 
his  examination  suffering  from  a  disability 
incurred  in  the  line  of  duty,  which  disqualified 
him  for  promotion,  it  is  within  the  power  of  the 
Secretary  of  War,  representing  the  President, 
to  order  a  new  physical  examination.  (27  Op. 
Atty.  Gen.,  193.) 

Proceedings  contrary  to  law. — Where 
the  President  possesses  the  power  of  review, 
he  has  the  power,  as  a  necessary  incident  to 
the  power  of  review,  if  he  finds  that  an  officer 
has  not  had  such  an  examination  as  the  law 
declares  he  shall  have,  or,  in  other  words,  if  the 
proceedings  are  fatally  defective,  to  treat  the 
proceedings  of  the  board  as  a  nullity  and  direct 
an  examination  in  accordance  with  law.  (27 
Op.  Atty.  Gen.,  193,  201.) 

An  opinion  and  recommendation  of  an 
examining  board  made  under  a  misconstruction 
of  the  law  cannot  control  distinct  statutory 
provisions  which  limit  retirements.  Accord- 
ingly, where  an  officer  has  been  erroneously 
retired  in  accordance  with  the  board's  finding 
which  was  contrary  to  law,  it  is  the  duty  of  the 
President  to  correct  such  action.  (17  Op. 
Atty.  Gen.,  7.) 


Judge    Advocate    General    shall,    under    the 
direction  of  the  Secretary  of  the  Navy, 
receive,  revise,   and   have  recorded,   the 
records  of  all  retiring  boards  in  the  Navy 
and   Marine  Corps.     (Act  June  8,    1880, 
21   Stat.,   164,   amended   by  act  June  5, 
1896,  29  Stat.,  251.) 
President  may  direct  the  Secretary  of  the  Navy 
to  take  such  action  on  the  records  of  pro- 
ceedings of  naval  examining  boards  and 
boards  of  naval  surgeons  for  the  promotion 
of  officers  of  the  Navy,  as  is  now  required 
by  law    to   be  taken  by  the  President. 
(Act  May  22,  1917,  sec.  20,  40  Stat.,  90.) 
Cannot  be  retired  without  President's 
approval. — The  conclusions  of  any  military 
court,    board,    or    commission,    must,    before 
being  carried  into  execution,  have  the  approval 
of    the    commander  in  chief  or   of  some   one 
representing  him.     Accordingly,  even  where 
the  law  does  not  expressly  provide  for  approval 
of   boards  in   the   Army,   such   boards   must 
receive  the  approval  of  the  Secretary  of  War, 
whose  action  is  conclusively  presumed  to  be 
that  of  the  President,  in  order  to  be  valid  and 
effective.     It  is  not,  however,  essential  that 
this  approval  should  be  express  or  indicated  in 
any  fonnal  language ;  it  might  be  indicated  by 
merely    giving    effect,    through    appropriate 
orders,  to  the  findings  of  the  board.     (27  Op. 
Atty.  Gen.,  193;   see  also  12  Op.  Atty.  Gen., 
347.) 

Action  of  the  President  is  necessary  before 
retirement  can  be  made;  and  an  officer  accord- 
ingly can  not  be  deprived  of  active-duty  pay  as 
of  a  prior  date.  (12  Comp.  Dec,  628;  see  note 
to  sec.  1457,  R.  S.) 

Under  the  laws  regulating  retirements  in  the 
Army  (sees.  1250,  1251,  R.  S.),  no  officer  can  be 
retired  from  the  Army  upon  the  report  of  any 
board,  even  if  such  report  be  approved  by  the 
Secretary  of  Wai',  except  it  "is  approved  by 
the  President."    (21  Op.  Atty.  Gen.,  385.) 

An  officer  of  the  Army  was  examined  for 
promotion  and  found  incapacitated  for  active 
service  on  account  of  certain  physical  disabili- 
ties; this  finding  was  approved  by  the  Surgeon 
General  and  by  the  Major  General  Command- 
ing the  Army,  and  by  the  Acting  Secretary  of 
War;  the  officer  was  notified  that  he  would  be 
retired  at  the  proper  time,  and  was  granted 
sick  leave  of  absence  until  further  orders. 
Held,  even  if  the  action  of  the  examining  board 
were  to  be  regarded  and  treated  as  that  of  a 


616 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1454. 


Delay  in  President's  action. — An  officer 
of  the  Army  was  found  incapacitated  for  active 
service  by  a  retiring  board  in  April,  1879. 
This  finding  was  not  approved  by  the  Presi- 
dent iintil  February  26,  1891,  whereupon  he 
was  placed  on  the  retired  list  jjiu-suant  to  sec- 
tion 1251,  Revised  Statutes  [which  is  similar  to 


section  1453,  Revised  Statutes,  relating  to  the 
Navy].  In  the  meantime  he  was  granted  ex- 
tended sick  leave  until  July  20, 1889,  when  he 
was  ordered  to  duty:  Held,  that  his  retirement 
was  strictly  in  accordance  with  section  1251  of 
the  ReATsed  Statutes.  (Steinmetz  v.  U.  S. ,  33 
Ct.  Cls. ,  404.    See  also  note  to  sec.  1502,  R.  S. ) 


Sec.  1453.  [Disability  due  to  an  incident  of  the  service.]  Wlien  a  retiring- 
board  finds  that  an  officer  is  incapacitated  for  active  service,  and  that  his 
incapacity  is  the  result  of  an  incident  of  the  service,  such  officer  shall,  if 
said  decision  is  approved  by  the  President,  be  retired  from  active  service 
with  retired  pay,  as  allowed  by  Chapter  Eight  of  this  Title. —  (3  Aug.,  1861, 
c.  42,  s.  23,  V.  12,  p.  291.) 

"Chapter  Eight  of  this  Title"  refei-s  to  sections 

1556-1595,  Revised  Statutes. 
Incident  of  the  service  defined.     See  note  to 

section  1451,  Revised  Statutes. 
Pay  of  officers  retired  for  disability  incident 

to  the  serA-ice.     See  section  1588,  Revised 

Statutes,  and  note  thereto. 
Pay  of  retired  officers  on  active  duty.     See 

note  to  section  1462,  Revised  Statutes. 
Rank  of  officers  on  retii-ement  for  disability 

incurred  in  line  of  duty.     See  note  to 

section  1457,  Revised  Statutes. 


Retirement  for  disability  a  "benefit" 
to  oflB.cers. — See  note  to  section  1448,  Re\'i8ed 
Statutes. 

The  pay  to  which  oflacers  on  the  retired 
list  are  entitled  is  usually  a  certain  per  cent 
of  the  pay  to  which  they  would  be  entitled  if 
on  the  active  list  with  the  rank  and  length  of 
service  they  had  at  the  date  of  retirement. 
(15  Comp.  Dec,  72.) 

See  note  to  sections  1448  and  1451, 
Revised  Statutes,  for  citations  bearing  upon 
this  section. 


Sec.  1464.  [Officers  wholly  retired,  or  retired  on  furlough  pay.]  When 
said  board  finds  that  an  officer  is  incapacitated  for  active  service  and  that  his 
incapacity  is  not  the  result  of  any  incident  of  the  service,  such  officer  shall,  if 
said  decision  is  approved  by  the  President,  be  retired  from  active  service  on 
furlough-pay,  or  wholly  retired  from  service  ■with  one  year's  pay,  as  the  Presi- 
dent may  determine. — (3  Aug.,  1861,  c.  42,  s.  23,  v.  12,  p.  291.) 


Fiu-lough  pay  of  reth'ed  officers.     See  section 

1593,  Revised  Statutes. 
Misconduct,    officers  can  not  be  retired   for. 
See  section   1456,  Re^Tsed   Statutes,  and 
note  thereto. 
Names  of  officers  wholly  retired  shall  be  omitted 
from  the  Na\'j' Register  (sec.  1457,  R.  S.). 
Transfer  from  furlough  to  retired  pay  list  was 
authorized  by  section  1594,  Re\Tsed  Stat- 
utes.    (But  see  act  Aug.  5,  1882,  22  Stat., 
286,  and  see  cases  noted  below.) 
Constitutionality  of  statute. — The  juris- 
diction of  the  President  over  the  relations  of  an 
officer  to  the  Army  and  his  right  to  determine 
whether  an  officer  incapacitated  for  service  be 
placed  on  the  retired  list  or  wholly  retired,  are 
created  by  statute,  and  the  President's  author- 
ity therefore  is  wholly  dependent  upon  the  let- 
ter of  positive  enactment.    (McBlair  v.  U.  S., 
19  Ct.  Cls.,  528.) 

The  regrilation  of  the  retired  list  by  Congress 
can  in  no  wise  interfere  with  the  constitutional 
power  of  the  President  as  Commander-in-Chief. 
As  to  such  enactments  he  becomes  an  execu- 
tive officer,  and  is  Limited  in  the  discharge  of 
his  duty  by  statute.  GMcBlair  v.  U.  S.,  19  Ct. 
Cls.,  528.) 

The  purpose  of  the  law  embodied  in  sections 
1229  and  1624,  article  36,  RexTsed  Statutes,  re- 
stricting the  dismissal  of  officers  of  the  Army 
and  Na\'3',  was  not  to  attach  a  life  tenure  or 
element  of  vested  right  to  the  office,  but  to  save 


officers  in  time  of  peace  from  the  ignominy  of  a 
hasty  and  dishonorable  dismissal.  It  was  an 
exercise  of  the  legislative  power  "to  make  rules 
for  the  government  and  regulation  of  the  land  and 
naval  forces"  [Constitution,  Article  I,  section  8, 
clause  14];  related  to  the  punishment  or  pro- 
tection of  indi^^.dual  officers;  and  was  intended 
to  secm'e  to  each  officer  a  trial  by  court-martial 
in  all  cases  "in  time  of  peace."  On  the  other 
hand,  the  act  of  July  15,  1870  (16  Stat.,  314), 
providing  for  the  reduction  of  the  Army  and  the 
mustering  out  by  the  President,  with  one  year's 
pay,  of  officers  foxmd  by  a  board  to  be  imfit  for 
the  proper  discharge  of  their  duties  "for  any 
cause  except  injuries  incurred  or  disease  con- 
tracted in  the  line  of  their  duty,"  was  an  exer- 
cise of  the  legislative  power  ' '  to  raise  and  sup- 
port armies  "  [Constitution,  Article  I,  section  8, 
clause  12];  related  to  the  Army  at  large;  and 
was  intended  to  reduce  the  Army  of  the  United 
States  from  45  to  25  regiments.  ^  The  two  laws 
are  neither  in  conflict  nor  in  pari  materia;  they 
spring  from  different  pro\'isions  of  the  Constitu- 
tion, and  have  entirely  different  pm-poses. 
(Street  v.  U.  S.,  24  Ct.  Cls.,  230.) 

See  notes  to  Constitution,  Article  I,  section  8, 
clause  14,  and  Article  II,  section  2,  clause  1, 
"Powers  of  Congi-ess  and  of  the  President." 

Not  repealed  by  later  general  laws. — 
Section  1442,  Re\'ised  Statutes,  gives  the  right 
to  furlough  an  officer  of  the  Na^'J',  and  section 
1557  fixes  the  proportion  of  the  pay  that  he 


617 


Sec.  1464. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


shall  have  while  on  furlough.     Section   1454 

f)rovidcy  for  rt'tiring  oflicers  of  the  Navy  on  fur- 
ough  pay,  and  section  1593  provides  specifically 
that  such  ofiicera  shall  receive  only  one-half  of 
the  pay  to  which  they  would  have  been  entitled 
if  on  leave  of  absence  on  the  active  list.  These 
sections  have  not  been  repealed.  (15  C'omp. 
Dec,  73;  sec  also  Hannum  v.  U.  S.,  226 
U.  S.,436.) 

Congress  having  for  the  past  30  years  pre- 
served a  distinction  between  naval  officers  "on 
the  retired  list,"  and  such  officers  "on  the 
retired  list  with  furlough  pay, "  a  statute  pro- 
viding for  the  pay  of  naval  officers  on  the 
"retired  list"'  will  not  be  held  to  abolish  the 
furlough-pay  list.  (Brown  v.  U.  S.,  113  U.  S., 
568). 

An  officer  was  retired  in  conformity  with  the 
provisions  of  section  1454,  Re\dsed  Statutes,  on 
furlough  pay,  upon  finding  of  retiring  board 
that  he  was  incapacitated  for  active  service, 
not  as  a  result  of  an  incident  of  the  service. 
Held,  that  laws  regulating  the  pay  of  commis- 
sioned officers  of  the  Navy  do  not  apply  to  offi- 
cers "who  were  retired  because  of  their  own 
misconduct,  ae  pro\'ided  by  section  1454,  "  but 
only  to  commissioned  officers  on  the  active 
list.  (Hannum  v.  U.  S.,  43  Ct.  Cls.,  320; 
affirmed,  226  U.  S.,  436.)  [That  court  was  in 
error  in  treating  section  1454  as  providing  for 
the  retirement  of  officers  "because  of  their 
own  misconduct, "  see  section  1456,  Revised 
Statutes,  and  note  thereto.  That  incapacity  due 
to  misconduct  is  not  the  only  class  of  physical 
disability  which  is  not  the  result  of  any  incident 
of  the  service,  see  note  to  section  1451,  Revised 
Statutes.] 

The  act  of  July  16,  1862,  provided  that  the 
annual  pay  of  retired  naval  officers  shall  be  as 
follows,  viz:  Admirals,  $2,000;  commodores, 
$1,800; captains,  $1,600;  etc.,  etc.,  embracingthe 
several  grades  down  to  and  including  ensigns. 
It  was  held  that  under  that  act  all  officers  on 
the  retired  list  were  classified  for  pay  purposes 
according  to  rank  only,  and  that  when  the 
rank  of  an  officer  in  any  case  was  determined, 
the  law  itself  declared  in  dollars  what  should 
be  his  annual  pay,  notwithstanding  that  he 
may  have  been  placed  on  the  retired  list  ex- 
pressly on  the  footing  of  a  rate  called  furlough 
pay;  that  by  said  act  of  1862  a  new  and  uni- 
form rule  for  the  pay  of  retired  officers  was 
adopted,  which  superseded  furlough  pay;  that 
opinions  in  regard  to  repeals  by  implication 
not  being  favored,  have  no  application  to  this 
question;  and  that  where  the  law  made  no 
exception  none  could  be  made  by  construction; 
it  covers  the  whole  subject  of  pay  of  the  officers 
enumerated,  and  makes  no  exception  as  to  fur- 
lough pay.  (12  Op.  Atty.  Gen.,  222.)  [It 
would  seem  that  this  opinion  held  the  law  of 
August  3,  1861,  to  be  repealed  by  the  act  of 
July  16,  1862,  but  that  nevertheless  said  law 
of  1861  was  incorporated  into  the  Revised 
Statutes  as  section  1454;  see  Brown  v.  U.  S., 
noted  above.] 

Meaning  of  "wholly  retired." — "What  is 
it  to  be  wholly  retired  from  the  service?  It  is 
nothing  less  than  to  be  put  out  of  the  Army 
and  out  of  office.  "  (Miller  v.  U.  S.,  19  Ct.  Cls., 
338,  353.) 


Any  form  of  removal  of  an  officer  from  his 
office  without  his  consent  is  a  dismissal.  (29 
Op.  Atty.  Gen.,  600;  but  see  note  to  sec.  1456, 
R.  S.,  and  see  file  26260-1392,  noted  below.) 

The  various  methods  by  which  persons  in 
the  military  or  naval  service  of  the  United 
States  may  be  involuntarily  separated  there- 
from are  embraced  in  the  terms  "discharged,  " 
"dismissed,"  and  "wholly  retired"  [and 
"dropped  from  the  service " :  see  section  1505, 
Revised  Statutes,  as  amended;  or  dropped 
"from  the  rolls:"  see  section  1220,  Revised 
Statutes,  and  note  thereto.  The  word  "dis- 
charged "  is  properly  limited  in  its  application 
to  those  who  have  enlisted  for  definite  periods 
(citing  Emory  v.  V.  S.,  19  Ct.  Cls.,  254, 
262),  and  unless  qualified  by  other  words,  as, 
for  example,  "dishonorable"  discharge,  "bad 
conduct"  discharge,  discharge  "without 
honor,  "  it  does  not  carry  with  it  any  stigma  of 
disgrace  or  punishment.  "Dismissed"  is  a 
term  peculiarly  applicable  to  officers  and  is 
the  equivalent  of  dishonorable  discharge. 
"^\^lolly  retired"  is  a  phrase  coined  for  the 
purpose  of  convening,  with  reference  to  offi- 
cers, the  same  idea  as  attaches  to  the  word 
"discharged"  when  applied  to  enlisted  men. 
The  meaning  of  these  terms  and  the  importance 
of  distinguishing  between  them  was  discussed 
by  the  Court  of  Claims  in  the  ca.se  of  Emory  v. 
U.  S.  (19  Ct.  pis.,  254,  263),  in  which  it  was 
said:  "Other  instances  can  be  found  in  the 
statute-books  where  the  legislative  draftsman 
has  been  embarrassed  by  the  technical  mean- 
ings which  the  Army  attaches  to  these  words. 
Thus  the  act  3d  August,  1861  (12  Stat.  L.,  p. 
289,  sec.  17),  provided  a  method  for  clearing 
the  Army  of  officers  incapacitated  for  service. 
As  to  those  who  were  incapacitated  from  long 
and  faithful  service,  by  wounds,  &c.,  it  pro- 
vided that  they  should  be  placed  on  the 're- 
tired list.  As  to  those  whose  incapacity  was  not 
the  direct  result  of  their  service  the  statute 
intended  that  they  should  be  removed  from 
office  with  one  year's  pay.  But  the  draftsman 
manifestly  could  not  find  a  term  or  phrase  to 
express  that  idea.  If  the  statute  should  say 
'discharged'  it  would  use  a  term  applicable  to 
enlisted  men;  if  it  should  say  'dismissed'  it 
would  use  a  term  savoring  of  punishment  and 
disgrace.  He  therefore  avoided  these  and 
used  the  curious  euphemism  'wholly  retired. '" 
(File  26260-1392,  June  29,  1911,  p.  25.) 

Status  of  officer  "wholly  retired." — 
Officers  wholly  retired  from  the  service  are  "ex" 
or  "ci-devant"  officers;  their  case  is  very  differ- 
ent from  that  of  officers  merely  retired  from 
active  service.     (29  Op.  Atty.  Gen.,  401.) 

An  officer  on  being  wholly  retired  becomes  a 
civilian.     (Miller  v.  U.  S.,  19  Ct.  Cls.,  338,  353.) 

Where  the  law  pro\'ided  for  honorably  dis- 
charging from  the  Amiy  certain  officers  with 
"one  year's  -pay  and  allowances,"  held  that 
"  all  officers  discharged  in  pursuance  of  this 
provision  were  remitted  to  civil  life,  free  from 
all  obligation  to  the  Government  other  than 
such  as  concerns  every  citizen.  No  condition 
except  that  of  honorable  discharge  is  pre- 
scribed by  it,  and  there  is  nothing  in  it  indi- 
cating that  such  officers  should  not  thereafter 
be  eligible  to  any  office,  ci\ril  or  militaiy,  no 


618 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1454. 


matter  how  great  might  be  its  emoluments, 
unless  what  had  been  thus  received  should  be 
refunded."  (14  Op.  Atty.  Gen.,  230;  see  also 
15  Op.  Atty.  Gen.,  177.)  ,     i        v 

Status  of  officer  retired  on  furlough 
pay— An  officer,  though  retired  on  furlough 
pav,  is  an  officer  on  the  retired  list,  beingspecifi- 
cally  so  recognized  by  section  1593  of  the 
Revised  Statutes.     (15  Comp.  Dec,  73.) 

President's  action  can  not  be  revoked.— 
The  President  having  once  "determined 
whether  the  officer  shall  be  retired  from  active 
service  or  wholly  retired,  can  not  re\aew  his 
decision  nor  correct  an  error  of  judgment. 
(McBlair  v.  U.  S.,  19  Ct.  Cls.,  528.) 

The  President  has  the  right  upon  the  report 
of  a  retiring  board  to  retain  an  officer  m  active 
service  or  retire  him  from  active  service  or 
wholly  retire  him.  But  this  is  not  a  contmu- 
ino'  power  and  is  performed  to  the  extent  of 
its" existence  by  the  one  act  of  the  President. 
(McBlair  v.  U.  S.,  19  Ct.  Cls.,  528.)        , 

The  rio-ht  of  the  President  to  review  his  own 
action,  il'it  exist,  must  be  subject  to  reasonable 
limitations.  A  change  of  an  order  after  two 
distinct  recognitions  of  approval  would  be  an 
unreasonable  exercise  of  the  right  of  review. 
(McBlair  v.  U.  S.,  19  Ct.  Cls.,  528).     _ 

An  officer  of  the  Army  was  found  incapaci- 
tated by  sickness  "notincident  to  the  service." 
By  direction  of  the  President  he  was  wholly 
retired  and  his  successor  appointed  and  con- 
finned      The  officer  asks  a  rehearing  which  is 
granted  by  the  President,  in  consequence  of 
which  the  President  revokes  his  former  order 
and  places  the  officer  upon  the  retired  list. 
Held,  that  upon  the  order  of  the  President  ap- 
pro\dng  a  report   and    "wholly  retiring"   an 
officer   there  is  in  law  and  in  fact  a  vacancy, 
the  legal  status  of  the  officer  becoming  that  of  a 
private  citizen;  and  that  he  can  not  again  be 
restored  to  office  except  by  a  new  appointment 
in  pursuance  of  a  nomination  to  and  confirma- 
tion by  the  Senate;  and  that  the  President  has 
no  power  to  reinstate  by  mere  revocation,  with- 
out the  advice  and  consent  of  the  Senate,  after 
the  complete  severance  of  the  individual  and 
the  office.     Held,  further,  that  the  nomination 
and  confirmation  of  an  officer  as  the  successor 
of  one   "wholly  retired"  operates  in  law  to 
supersede    the    retired    officer,    who    thereby 
ceases  to  have  any  connection  with  the  Army. 
(Miller  v..  U.  S.,  19  Ct.  Cls.,  338.) 

A  retiring  board  found  an  officer  "incapaci- 
tated for  duty  by  disability  which  did  not 
orioinate  in  the  line  of  duty."  The  finding 
was  approved  by  the  President,  and  the  claim- 
ant was  thereupon  retii-ed  upon  furlough  pay, 
as  required  by  section  1454,  Revised  Statutes. 
About  two  years  later  the  Secretary  of  the  Navy 
decided  that  "the  department  is  of  the  opinion 
that  the  causes  which  incapacitated  him  for 
active  duty  were  incident  to  the  service . "  Un- 
fortunately for  the  claimant,  the  retiring  board, 
by  the  President 's  approval ,  and  not "  the  depart- 
ment," was  authorized  by  law  to  settle  that 
fact  (sees.  1451  and  1454,  R.  S.).  At  the  time 
the  opinion  of  the  department  was  promul- 
gated, the  Secretary  had  no  more  power  to 
revise  the  finding  of  the  board  and  to  reverse 
the  approval  and  action  of  the  President 
thereon  than  he  had  to  overrule  a  decision  of 


o4G41°— 22- 


■40 


the  Supreme  Court.     (Burchard  v.  U.  S.,  19 
Ct.  Cls.,  137.) 

Neither  the  depai-tment  nor  the  President 
could  then  change  the  findings,  as  they  had 
already  been  approved  and  were  no  longer  open 
to  review.  The  action  of  the  President  was 
equivalent  to  the  judgment  of  an  appropriate 
tribunal  upon  the  facts  as  found.  That  judg- 
ment, as  a  judgment,  could  not  be  disturbed. 
(U.  S.  V.  Burchard,  125  U.  S.,  176;  27  Op.  Atty. 
Gen.,  225.) 

An  officer  of  the  Army  was  found  by  a  retir- 
ing board    "incapacitated   for  active   service 
from  insanity,  which  insanity  is  not  incident  to 
the  service. '''    By  direction  of  the  President  he 
was  retired  from  active  service.     Thereafter, 
by  direction  of  the  President,  this  order  was  so 
amended  as  to  wholly  retire  him  from  the  serv- 
ice with  one  year's  pay,  this  amendment  being 
made  at  the  officer's  request.     Thereafter,  by 
direction  of  the   President  the  order  wholly 
rething  the  officer  was  declared  void  on  the 
ground  that  he  was  insane  when  he  made  the 
request,  and  he  was  restored  to  the  retired  list 
in  accordance  with  the  original  order.     The 
President,  under  the  law,  had  power  (1)  to 
place  the  officer  on  the  retired  list,  or  (2)  to 
wholly  retire  him  from  the  service  with  one 
year's    pay    and    allowances.     Having    once 
acted  under  that  power  upon  the  report  of  the 
board  by  retiring  the  officer,  his  power  as  to 
this  particular  case  was  thereby  exhausted .     In 
general,  where  power  is  given  by  statute  to 
enable  an  officer  to  do  a  particular  act  which 
would  otherwise  be  beyond  the  scope  of  his 
authority,  after  such  power  has  once  been  ex- 
ercised it  is  deemed  exhausted  and  can  not  be 
exercised  again.    Accordingly,  the  order  wholly 
retiring  this  officer  from  the  service  was  void, 
for  want  of  authority  in  the  President  thus  to 
retire  him.     The  circumstance  that  such  order 
was  issued  in  compliance  with  a  request  made 
by  the  officer  when  insane  may  afford  additional 
ground  for  holding  it  void .     (19  Op .  Atty .  Gen . , 
202,  207.) 

In  People  v.  Waynesville  (88  111.,  470,  475) 
it  is  observed:  "As  a  general  rule,  where  the 
general  assembly  confers  a  power,  and  the 
persons  upon  whom  it  is  conferred  act  under  it, 
the  power  is  exhausted,  unless  power  is  given 
to  act  again  under  the  same  authority. ' '  And 
in  Ex  parte  Randolph  (2  Brock.,  473,  474\  the 
court  says:  "I  take  it  to  be  a  sound  principle , 
that  when  a  special  tribunal  is  created,  with 
limited  power  and  a  particular  jurisdiction, 
whenever  the  power  is  once  executed  the  juris- 
diction is  exhausted  and  at  an  end — that  the 
person  thus  invested  with  power  is,  in  the 
language  of  the  law,  functus  officio."  _  These 
cases  are  cited  by  the  Court  of  Claims  m 
McBlau-  V.  U.  S.  (19  Ct.  Cls.,  528^,  in  holding 
that  the  President 's  power  is  performed  to  the 
extent  of  its  existence  by  the  one  act  of  approval 
of  the  proceedings  of  a  retiring  board.  (19 
Op.  Atty.  Gen.,  202,  207.) 

None  but  officers  in  active  service  being 
eligible  for  retirement,  the  action  of  the  Presi- 
dent revoking  a  previous  order  dropping  an 
officer  from  the  rolls,  and  putting  him  on  the 
retired  list  of  the  Army,  was  ineffectual  for  that 
purpose.     (19  Op.  Atty.  Gen.,  202,  205.) 

619 


Sec.  1454. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Whether  the  finding  of  the  l)oard  was  war- 
ranted by  the  evidence  adduced  is  an  inquiry 
that  can  not  now  he  gone  into  as  no  power  of 
review  over  the  proceedings  of  the  retiring 
board  exists  by  law  where  its  finding  has  been 
once  approved  by  the  President  and  his  "or- 
ders in  the  case"  executed.  (15  Op.  Atty. 
Gen.,  446.) 

For  other  cases,  see  notes  to  sections  1452, 
1456,  and  1457,  Kevised  Statutes. 

Transfer  of  officer  from  furlough  to 
retired  pay  list  does  not  change  cause  of 
retirement. — A  retiring  board  reported  that 
an  oflicer  was  incapacitated  for  active  service 
and  that  in  its  judgment  the  incapacity  did  not 
originate  "in  the  line  of  duty. ' '  In  this  report 
the  President  concurred,  and  directed  a  re- 
tirement on  fiu-lough  pay.  Held,  that  the 
finding  of  the  retiring  board,  approved  by  the 
President,  is  the  judgment  of  the  triljunal, 
created  under  the  law  for  the  government  of 
the  Navy  to  determine  such  questions,  that 
the  officer  be  retired  from  active  service  for 
incapacity  which  ' '  did  not  originate  in  the  line 
of  duty."  This  made  him  a  retired  officer  on 
furlough  pay,  and  gave  him  one-half  the  leave 
of  absence  pay  of  an  officer  on  the  active  list. 
When  he  was  afterwards  transferred  by  the  action 
of  the  President  and  Senate,  under  section  1594, 
Revised  Statutes,  "from  the  furlough  to  the 
retired  pay  list,"  his  status  as  a  retired  officer 
was  not  changed.  He  still  remained  an  officer 
retired  for  incapacity  which  did  not  originate  in 
the  line  of  duty,  but  his  pay  was  raised  from  that 
of  an  officer  retired  ' '  on  furlough  pay ' '  to  that  of 
an  officer  retired  on  half  sea  pay.  The  object 
of  the  statute  was  not  to  enal)le  the  Pi'esident 
and  Senate  to  vacate  the  finding  of  the  retiring 
board  that  the  incapacity  of  the  officer  did  not 
"originate  in  the  line  of  duty"  and  to  decide 
that  it  was  "the  result  of  an  incident  of  the 
service,"  but  to  afford  a  means  for  his  relief 
from  the  consequences  of  such  a  finding  to  the 
extent  of  adding  to  his  pay  the  difference  be- 
tween the  half  of  leave  of  absence  pay  and  the 
half  of  sea  pay.  "It  may  have  been  intended 
as  a  provision  for  a  remedy  for  wrongs  done  liy 
retiring  boards,  but  it  limited  the  power  of  the 
President  and  Senate  in  that  behalf  to  a  trans- 
fer of  the  name  of  the  officer  from  'the  furlough 
to  the  retired  pay  list.'  The  cause  of  his  re- 
tirement still  remains  the  same  and  deter- 
mines his  position  on  the  'retired-pay  list.'  '' 
(Potts  V.  U.  S.,  125  U.  S.,  173;  27  Op.  Atty. 
Gen.,  221.) 

The  transfer  of  the  claimant  "from  the  fur- 
lough to  the  retired  pay  list' '  did  not  haA-e  the 
effect  to  abrogate  the  finding  of  the  retiring 
board  and  insert  in  its  place  that  the  cause  of 
his  incapacity  did  originate  from  the  service. 
(Burchard  v.  U.  S.,  19  Ct.  Cls.,  137;  125  U.  S., 
176.) 

Cause  of  retirement  cannot  be  changed 
by  Congress. — In  14  Comp.  Dec,  161,  it 
was  held  that  a  private  act  of  Congi-ess  wnich 
authorized  the  Secretary  of  the  Navy  to  trans- 
fer an  officer  on  the  retired  list  "from  the  half- 
pay  list  to  the  seventy-five  per  centum  list 
under  section  fifteen  hundred  and  eighty- 
eight  ReA^sed  Statutes,"  operated  to  change 
the  status  of  the  officer  from  that  of  one  re- 
tired for  incapacity  not  incident  to  his  service 


to  that  of  one  retired  for  an  incapacity  of  serv- 
ice origin.  In  27  Op.  Atty.  Gen.,  221,  the 
Attorney  General  stated  that  he  could  not  con- 
cur in  this  decision ;  that  it  may  be  questioned 
whether  or  not  Congress  has  the  authority  to 
change  the  findings  of  the  retiring  board  ap- 
proved by  the  President,  even  if  it  so  intended ; 
and  that  the  private  act  did  not  make  the 
beneficiary  an  officer  of  the  Navy  who  had 
theretofore  been  retired  on  account  of  woimds 
or  disability  incident  to  the  ser\-ice.  There- 
after, in  15  Comp.  Dec,  584  (97  S.  &  A.  Memo. 
1004),  the  Comptroller  of  the  Treasury  reversed 
his  pre\dou3  decision  (14  Comp.  Dec,  161) 
and  followed  the  opinion  of  the  Attorney  Gen- 
eral. The  opinion  of  the  Attorney  General, 
thus  followed  by  the  Comptroller  of  the  Treas- 
ury, was  sustained  bv  the  Court  of  Claims  in 
Morse  v.  U.  S.,  46  Ct.  Cls.,  361,  affirmed  by  the 
Supreme  Court  in  229  U.  S..  208. 

Where  an  officer  of  the  Navy  was  retired 
under  section  1454,  Revised  Statutes,  for  inca- 
pacity not  originating  in  the  line  of  duty,  and 
upon  a  full  review  of  the  facts  the  Secretary  of 
the  NaAy  found  that  the  causes  of  his  incapac- 
ity were  incident  to  the  service,  and  he  was 
accordingly  transferred  by  the  President,  by 
and  with  the  ad\ice  and  consent  of  the  Senate, 
from  the  furlough  to  the  50  per  cent  retired 
pay  list,  under  sections  1594  and  1588,  Revised 
Statutes,  and  later,  pursuant  to  a  private  act 
of  Congress,  was  transferred  to  the  75  per  cent 
pay  list  of  retired  officers  under  section  1588, 
Re\ased  Statutes,  he  can  not  thereafter  be 
placed  on  the  retired  list  with  the  retired  pay 
of  one  grade  above  that  actually  held  by  him 
at  the  time  of  his  retirement,  under  the  act  of 
June  29,  1906  (34  Stat.,  554),  which  authorizes 
such  advancement  to  certain  officers  of  the 
Navy  who  have  been  retired  on  account  of 
wounds  or  disability  incident  to  the  service. 
The  status  of  this  officer  was  fixed  by  the  find- 
ings of  the  retiring  board,  approved  by  the 
President,  and  it  may  be  questioned  whether 
or  not  Congress  has  the  authority  to  change 
the  finding  of  the  retiring  board,  even  if  it  so 
intended,  although  it  is  undoubtedly  within 
the  power  of  Congress  to  give  him  all  the  bene- 
fits which  he  would  have  received  had  he  been 
correctly  retired.  The  private  act  gave  him 
all  the  benefits  of  persons  who  were  entitled 
to  the  emoluments  prescribed  therein,  but  it 
did  not  make  him  an  officer  of  thi^  Navy  who 
had  theretofore  been  retired  on  account  of 
wounds  or  disability  incident  to  the  service, 
the  fact  being,  as  the  record  shows,  that, 
although  unadAdsedly  or  erroneously,  he  was 
definitely  retired  for  a  physical  disability 
which  was  not  due  to  an  incident  of  the  serv- 
ice.    (27  Op.  Atty.  Gen.,  221.) 

A  special  act  of  Congress  which  authorizes 
the  Secretary  of  the  Na\y  to  transfer  an  officer 
on  the  retired  list ' '  from  the  half- pay  list  to  th  e 
75  per  centum  list  under  section  fifteen  hun- 
dred and  eighty-eight  Re\dsed  Statutes," 
will  not  operate  to  change  his  status  from  that 
of  an  officer  retired  for  incapacity  not  incident 
to  the  ser\dce  to  that  of  an  officer  retired  for 
incapacity  incident  to  the  ser\ice.  (Morse  v. 
U.  S.,  46  Ct.  Cls.,  361,  229  U.  S.,  208.) 

Courts  without  power  to  review  finding 
of  board. — ^^^lere  an  officer  of  the  Army  has 


620 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1454. 


been  examined  for  promotion,  and  upon  fail- 
ure to  qualify  is  honorably  discharged  from 
the  service,  the  courts  are  without  jurisdiction 
to  order  him  placed  on  the  retired  list  upon  his 
petition  setting  forth  that  he  had  been  found 
by  a  board  physically  incapacitated  for  service 
and  that  he  was  thereby  entitled  to  be  retired 
and  entitled  to  retired  pay  during  life,  in- 
stead of  being  dismissed  with  one  year's  pay. 
The  report  of  the  board  is  not  final,  but  must 
be  approved  or  disapproved  by  the  President. 
This  is  the  only  relief  from  the  errors  or  injus- 
tice that  may  be  done  by  the  board  which  is 
provided.  The  courts  have  no  power  to  re- 
view. The  courts  are  not  the  only  instrumen- 
talities of  the  Government.  They  cannot 
command  or  regulate  the  Army.  To  be  pro- 
moted or  retired  may  be  the  right  of  an  officer, 
the  value  to  him  of  his  commission,  but  greater 
even  than  that  is  the  welfare  of  the  country 
and  it  may  be,  even  its  safety,  through  the 
efficiency  of  the  Army.  Decisions  of  State 
courts  relating  to  the  militia  cannot  sustain 
the  right  to  review  examining  boards  in  the 
Army.  There  is  a  wide  difference  between  the 
Regular  Army  of  the  Nation  and  the  militia  of  a 
State  when  not  in  the  service  of  the  Nation; 
and  more  rigid  rules  and  a  higher  state  of  disci- 
pline are  required  in  the  one  case  than  in  the 
other.     (Reaves  v.  Ainsworth,  219  U.  S.,  296.) 

Transfer  from  furlough  to  retired  pay 
list  no  longer  authorized. — An  officer  re- 
tired on  furlough  pay  under  section  1454,  Re- 
vised Statutes,  can  not  be  transferred  to  the 
retii-ed  pay  list  under  section  1594,  Revised 
Statutes,  with  increase  of  pay;  such  increase  is 
forbidden  by  the  act  of  August  5,  1882  (22  Stat., 
286),  providing  that  "hereafter  there  shall  be 
no  promotion  or  increase  of  pay  in  the  retired 
list  of  the  Navy,  but  the  rank  and  pay  of  officers 
on  the  retired  list  shall  be  the  same  that  they 
are  when  such  officers  shall  be  retired."  (18 
Op.  Atty.  Gen.,  96.) 

Nor  can  an  officer  be  simultaneously  retired 
on  furlough  pay  and  transferred  to  the  retired 
pay  list,  so  as  to  give  him  the  pay  of  the  latter. 
(18  Op.  Atty.  Gen.,  96.) 

The  provision  of  the  act  of  August  5,  1882  (22 
Stat.,  286),  prevents  either  rank  or  pay  of  offi- 
cers on  the  retired  list  from  being  increased  in 
any  way  after  siich  officers  shall  have  been 
placed  thereupon.     (18  Op.  Atty.  Gen.,  96.) 

The  power  of  the  President  to  make  such 
transfer  depends  by  the  section  upon  the  fact 
that  the  officer  is  already  upon  the  retired  list, 
whether  he  has  been  so  for  a  minute  or  longer. 
Whatever  time,  therefore,  may  have  elapsed 
since  the  officer  has  been  put  upon  that  list  has 
elapsed,  of  course,  a/^er  that  point  of  time  which 
fixes  the  pay  of  all  retired  officers.  There  can 
be  no  contemporaneous  occurrence  of  the  act 
by  which  an  officer  is  retired  upon  the  furlough- 
pay  list  and  of  that  by  which  he  is  transferred 
therefrom.  The  former  precedes  the  latter 
necessarily;  and  so  its  effect  in  fixing  pay  pre- 
cedes the  existence  of  any  question  as  to  the 
effect  of  transfer  thereupon.  In  other  words, 
the  transfer  finds  the  pay  already  fixed  by  the 
act  of  August  5,  1882.     (18  Op.  Atty.  Gen.,  96.) 

[There  is  now  no  increase  of  pay  involved  by 
the  transfer  of  an  officer  from  the  fiu-lough  to 
the  retired  pay  List,  as  fiu-lough  pay  is  now  the 


same  as  the  50  per  cent  retired  list.  See  note  to 
section  1593,  Revised  Statutes.] 

One  year's  pay  allowed  officer  -whoUy 
retired  is  not  a  gratuity. — The  one  year's 
pay  provided  for  by  section  1275,  Revised  Stat- 
utes, for  an  officer  of  the  Army  wholly  retired 
from  the  service  is  not  in  the  nature  of  a  gratu- 
ity, but  is  compensation  for  services  rendered, 
and  upon  the  death  of  the  officer  before  pay- 
ment thereof  it  is  payable  to  his  legal  represent- 
ative. (7  Comp.  Dec,  404;  see  also  Hotchkin 
V.  V.  S.,  24  Ct.  Cls.,  18;  butsee  note  to  sec.  1456, 
R.  S.,  under  "Act  of  Aug.  5, 1882,  not  a  penal 
statute. ' ') 

Officer  wholly  retired  not  required  to 
refund  year's  pay  upon  reappointment.^ 
Where  an  officer  who  had  been  honorably  dis- 
charged from  the  Army  with  one  year 's  pay  and 
allowances  was  reappointed  to  the  Army,  upon 
nomination  and  confirmation  by  the  Senate,  he 
was  not  required  to  refund  the  amount  of  his 
pay  on  discharge,  though  the  War  Department 
attempted  to  require  same  as  a  condition  pre- 
cedent to  his  second  appointment.  As  a  con- 
dition it  is  void  and  of  no  effect.  (14  Op.  Atty. 
Gen.,  230;  see  also  15  Op.  Atty.  Gen.,  177; 
Katzer  v.  U.  S.,  52  Ct.  Cls.,  32.) 

Reconsideration  by  board  of  its  find- 
ing.— Where  a  naval  retiring  board  convened 
to  inquire  into  the  nature  and  cause  of  the 
disability  of  an  officer  has  once  finished  its 
work,  rendered  a  complete  judgment  in  the 
case,  and  adjourned,  a  subsequent  reconsidera- 
tion of  its  judgment  by  the  board,  unless 
authorized  or  directed  by  proper  authority, 
can  have  no  legal  effect.  Accordingly,  upon 
examination  of  the  record  of  proceedings  before 
a  naval  retiring  board  in  the  case  of  Paymaster 
Rodney,  held,  that  the  paper  attached  to  the 
record  called  a  reconsideration  of  the  finding 
of  the  board  was  without  legal  effect  and  that 
the  officer  was  properly  retired  under  the  orig- 
inal finding  of  the  board  on  furlough  pay.  (16 
Op.  Atty.  Gen.,  104;  see  also  15  Op.  Atty. 
Gen.,  316.) 

A  probationary  dental  surgeon  serving 
under  appointment  issued  by  the  President, 
by  and  with  the  advice  and  consent  of  the 
Senate,  in  accordance  with  the  act  of  August 
29,  1916  (39  Stat.,  573),  may  be  wholly  retired 
under  this  section,  notwithstanding  the  pro- 
vision in  said  act  that  such  appointments  '  'may 
be  revoked  at  any  tim?  during  the  probationary 
period  by  the  President."  (See  file  26253-550, 
Feb.  18,  1918.) 

Order  retiring  marine  officer  on  furlough 
pay  is  without  authority  of  law. — An 
officer  of  the  Marine  Corps  was  examined  by  a 
retiring  board  convened  by  the  Secretary  of 
the  Navy  and  found  incapacitated  for  active 
service  for  causes  ' '  not  an  incident  of  the  serv- 
ice." The  President  made  the  following  in- 
dorsement on  the  record  of  the  proceedings  and 
finding  of  the  board :  "  I  conciu:  in  opinion  with 
the  retii'ing  board  in  the  case  of  First  Lieut. 
George  M.  Welles.  Let  him  be  retired  on  fur- 
lough pay."  The  officer  was  advised  of  this 
action  by  the  Acting  Secretary  of  the  Navy, 
and  notified  that  he  would  be  considered  as 
retired  on  fiu-lough  pay  from  that  date.  The 
retii-ement  of  officers  of  the  Marine  Corps  was 
governed  by  sections  1622  and  1623,  Revised 


621 


Sec.  1456. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Statutes.  The  board  was  lawfully  convened 
in  accordance  with  those  sections.  For  officers 
of  the  Marine  Corps  who  are  retired  from  active 
service,  as  for  odicers  of  the  Ai'my  who  are  so 
retired,  there  ia  but  one  rate  of  pay  established 
by  law,  and  it  is  not  competent  for  the  President 
to  place  these  retired  officers  on  a  different  rate 
of  pay  than  that  which  the  law  has  fixed.  The 
first  sentence  of  the  indorsement  of  the  Pres- 
ident upon  the  record  admits  of  no  other  con- 
struction than  that  it  was  meant  to  express  his 
approval  of  the  finding  of  the  board.  Having 
thus  approved  the  finding  of  the  board,  it  rested 
entirely  in  his  discretion  whether  Lieut. 
Welles  should  be  retired  from  active  service  or 
wholly  retired  from  the  ser\dce.  But  it  was 
necessary  that  one  or  the  other  be  done,  as  the 
law  is  imperative  that  when  the  decision  of 
the  board  ia  approved  by  the   President  the 


officer  "shall  be  retired,"  etc.  The  direction 
given  in  the  last  sentence  of  the  indorsement 
clearly  indicates  that  it  was  the  determination 
©f  the  President  that  Lieut.  Welles  be  retired 
from  active  sor\'ice  simply.  The  compensation 
of  an  officer  thus  retii'ed  being  fixed  by  statute 
and  not  left  to  be  determined  by  the  President, 
in  so  far  as  that  dkection  applies  to  the  pay  of 
Lieut.  Welles  on  the  retired  list  it  must  be 
treated  as  of  no  effect.  It  may  well  be  that  the 
indorsement  was  prepared  inadvertently,  it 
being  supposed  that  the  law  which  applies  to 
officers  of  the  Navy  (who  may  be  retired  upon 
furlough  pay  if  the  reason  for  their  retirement 
was  not  an  incident  of  the  service)  applies  to 
officers  of  the  Marine  Corps.  Such,  however, 
is  not  the  case ;  for  the  Marine  Corps  different 
legislation  is  provided.  (15  Op.  Atty.  Gen., 
442.) 


Sec.  1455.  [Officers  not  to  be  retired  without  a  hearing.]  No  officer  of  the  Navy 
shall  be  retired  from  active  service,  or  wholly  retired  from  the  service,  without 
a  full  and  fair  hearing  before  such  Navy  retiring-board,  if  he  shall  demand  it, 
except  in  cases  where  he  may  be  retired  by  the  President  at  his  own  request, 
or  on  account  of  age  or  length  of  service,  or  on  account  of  his  failure  to  be 
recommended  by  an  examining  board  for  promotion. — (3  Aug.,  1861,  c.  42, 
s.  23,  V.  12,  p.  291.) 


Retirement  of  officers  upon  their  own  request 
is  provided  for  by  section  1443,  Reviseid 
Statutes;  act  of  May  13, 1908  (35  Stat. ,  128); 
and  act  of  March  3, 1899,  section  8  (30  Stat., 
1006). 

Retirement  of  officers  for  age  is  provided  for 
by  section  1444,  Revised  Statutes,  as 
amended  by  act  of  August  29, 1916  (39  Stat, 
579);  see  also  section  1481,  Revised  Statutes. 

Retirement  of  officers  not  recommended  for 
promotion  is  provided  for  by  section  1447, 
Revised  Statutes. 

Retirement  of  officers  upon  selection  by  a  board 
of  rear  admirals,  for  the  purpose  of  creat- 
ing vacancies,  was  provided  for  by  act 
of  March  3,  1899,  section  9  (30  Stat.,  1006), 
since  repealed. 


"Wholly  retired  from  the  service:"     Authority 
for  such  retirements  is  contained  in  sec- 
tion 1455,  Revised  Statutes. 
Full  and  fair  hearing. — The  statute  pro- 
viding that  no  officer  of  the  Army  shall  be  re- 
tired ,  either  partially  or  wholly,  without  having 
had  a  full  and  fair  hearing,  does  not  authorize 
the  President  to  send  a  case  back  to  a  retiring 
board  if  he  has  once  approved  and  acted  upon 
its  report.     W^hen  the  President  approves  and 
acts  upon  the  report  of  a  retiring  board ,  he  there- 
by determines  that  the  officer  has  had  "a  full 
and  fair  hearing."     (Miller  v.  U.    S.,  19  Ct. 
Cls.,  338.     Compare  note  to  sec.  1503,  R.  S.) 

Failure  of  oflS.cer  to  demand  hearing 
as  constituting  waiver. — See  note  to  section 
1503,  Revised  Statutes. 


Sec.  1456.  [Officers  not  to  be  retired  for  misconduct.]  No  officer  of  the 
Navy  shall  be  placed  on  the  retired  list  because  of  misconduct;  but  he  shall  be 
brought  to  trial  by  court-martial  for  such  misconduct. —  (15  July,  1870,  c 
295,  s.  6,  V.  16,  p.  333.) 


Similar  provisions  with  reference  to  officers  fail- 
ing upon  examination  for  promotion  by 
reason  of  drunkenness  or  other  misconduct, 
and  a  requirement  that  such  officers  shall 
be  discharged   with   not  more  than   one 
year's  pay,  are  contained  in  act  of  August 
5,  1882  (22  Stat.,  286). 
Statute  of  limitationsfor  trialsby  court-martial: 
See  section  1624,  Revisecl  Statutes,  articles 
61  and  62,  which  articles  were  added  to  that 
sectionbyactof  February  25, 1895(28  Stat., 
680). 
Trials  of  officers  by  general  courts-martial  are 
provided    for    by   section    1624,    Revised 
Statutes. 
"Offenses  shall  not  be  allo-wed  to  accumu- 
late, in  order  that  sufficient  matter  may  thus 


be  obtained  for  a  trial,  without  giving  due 
notice  to  the  offender."  (Art.  R-1411,  Navv 
Regs.,  1913.) 

Misconduct  not  ground  for  retirement.- 
Section  1456,  Revised  Statutes,  specifically 
prohibits  retirement  of  officers  of  the  Navy  on 
account  of  misconduct  and  requires  they  be 
brought  to  trial  therefor  by  court-martial;  and 
there  is  no  doubt  that  the  same  principle  must 
be  recognized  in  the  construction  of  the  laws 
relating  to  the  retu-ement  of  officers  of  the 
Army.     (27  Op.  Atty  Gen.,  14.) 

An  officer  of  tii  e  Army  can  not  be  retired  under 
the  provisions  of  sections  1245-1252,  Revised 
Statutes,  if  he  could  have  been  properly  brought 
to  trial  by  court-martial  for  the  same  acts  or 
omissions  which  are  alleged  as  evidence  of  the 


622 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1456. 


incapacity  justifj-ing  his  retirement.  If  he 
displays  impatience  or  irritability,  imperfect 
control  of  his  temper,  indolence,  indecision, 
and  want  of  alertness  to  such  an  extent  as  to 
destroy  or  gravely  impair  his  usefulness,  it 
■would  seem  almost,  indeed  quite,  incredible 
that  he  should  not  have  been  guilty  of  some 
breach  of  the  Articles  of  War.  If  his  excesses 
in  eating  and  drinking  have  been  sufficient 
to  incapacitate  him  for  the  discharge  of  his 
duties,  this  may  constitute  a  clearly  appro- 
priate ground  for  disciplinary  action,  but 
inasmuch  as  these  indiscretions  are  e^"idently 
voluntary  on  his  part,  they  can  not  of  them- 
selves constitute  an  incapacity  justifying 
retirement.     (27  Op.  Atty.  Gen. ,  14.) 

If  any  of  the  matters  referred  to  as  objection- 
able in  an  officer  are  in  \T.olation  of  the  law  or  reg- 
ulations of  the  service,  he  is  subject  to  its 
discipline;  but  they  do  not  subject  him  to 
compulsoiy  retirement  unless  they  render 
him  incapable  of  performing  the  duties  of 
his  office  when  he  is  willing  and  desires  to  do 
so.     (27  Op.   Atty.   Gen.,  162.) 

The  pro\-ision3  of  the  retirement  laws  are 
in  no  sense  disciplinary  or  punitive  in  their 
purpose.  The  punishment  of  officers  for 
willful  failure  to  discharge  their  duty  can  not 
be  legally  effected  through  the  agency  of  a 
retiring  board ;  and  in  dealing  with  questions  of 
this  character,  the  law  assumes  the  freedom  of 
the  human  will  in  a  person  compos  mentis  and 
legally  responsible  for  his  actions.  (27  Op. 
Atty.  Gen.,  14.) 

Retired  Kst  intended  only  for  the 
worthy. — All  officers  who  in  the  judgment  of 
the  board  and  of  the  President  were  unworthy 
of  official  confidence  and  public  favor  have 
from  time  to  time  been  excluded  entirely  from 
the  Na\-y;  the  reserved  list  being  presumably 
composed  of  persons  whose  professional  educa- 
tion and  standing  are  deserving  of  respect  and 
available  for  the  benefit  of  the  Government, 
though  in  different  degrees,  depending  partly 
on  the  personal  merit  of  the  officers,  partly  on 
opportunity  and  exigency,  partly  on  their 
relative  numbers,  partly  on  public  economy. 
(12  Op.  Atty.  Gen.,  222.) 

In  regard  to  the  contention  that  officers 
mentally,  morally,  and  professionally  dis- 
qualified are  often  found  upon  the  retired  list, 
I  would  suggest  that  it  was  never  contemplated 
by  the  legislature  that  the  retired  list  would 
to  any  extent  be  occupied  except  by  those 
who  had  performed  honorable  service  and  were 
retired  by  reason  of  disability  incurred  in  that 
8er\-ice.     (17  Op.  Atty.  Gen.,  36.) 

Temperamental  unfitness  not  miscon- 
duct.—See  note  to  section  1448^  Revised 
Statutes. 

OFFICERS  TO  BE  DISCH.\RGED,  AND  NOT  RETIRED, 
WHEN  FOUND  BY  PROMOTION  BOARD  UNFIT 
FROM   CAUSES   DUE   TO  MISCONDUCT. 

Historical:  Act  August  5,  1882,  applies 
to  moral  unfitness.— At  the  time  the  act  of 
1882  (22  Stat.,  286)  was  pending  in  Congress, 
officers  of  the  Na\y,  prior  to  promotion,  were 
required  by  sections  1493,  1496,  1497,  and  1504, 
Re\ised  Statutes,  to  establish  by  examination 
their  physical,  mental,  moral,  and  professional 


fitness  to  perform  all  the  duties  at  sea  of  the  grade 
to  which  they  were  to  be  promoted .  Should  the 
candidate  on  examination  fail  physically,  his 
case  was  pro\ided  for  by  other  statutes  estab- 
lishing retiring  boards  and  defining  their 
powers;  if,  on  the  other  hand,  he  failed  pro- 
fessionally, his  case  came  within  section  1505, 
pro\iding  that  officers  so  failing  should  be  sus- 
pended from  promotion  and  then  reexamined, 
and  in  case  of  failure  upon  reexamination, 
"shall  be  dropped  from  the  service;"  if  the 
candidate  ^  was  found  by  both  the  medical 
and  examining  boards  to  be  not  qualified  for 
promotion,  under  section  1447  of  the  Re\'ised 
Statutes  he  was  to  be  placed  on  the  retired 
list  [but  see  note  to  section  1447,  Revised 
Statutes,  as  to  whether  both  boards  must  have 
rejiorted  unfavorably].  WTiere,  however,  he 
was  found  not  morally  qualified  for  promotion, 
although  physically,  mentally,  and  profes- 
sionally competent,  his  case  was  not  specifically 
prowled  for  by  law.  He  could  not  be  pro- 
moted, because  of  thepro\'isions  of  section  1  of 
the  act  of  April  21,  1864  (13  Stat.,  53),  now  in- 
corporated in  section  1496  of  the  Revised 
Statutes.  Neither  could  he  be  discharged  from 
the  service,  because  of  the  act  of  July  13,  1866 
(14  Stat.,  92),  now  sec-tion  1229,  and  article  36 
of  section  1624,  Re\'ised  Statutes.  On  the 
other  hand,  under  the_  laws,  customs,  and 
usages  of  the  naval  service,  no  officer  who  is 
unable  to  establish  his  fitness  for  promotion  can 
be  retained  indefinitely  in  a  fixed  position  on 
the  Na\'y  list  delating  promotions  all  along  the 
line,  but  an  officer  who  is  due  for  promotion 
must  either  be  promoted  or  make  way  for  those 
below  him,  as  the  law  requires  all  promotions 
in  the  Na\'y  to  be  made  according  to  seniority. 
[But  see  notes  to  sections  1458  and  1480,  Re- 
\dsed  Statutes,  to  effect  that  promotions  are  no 
longer  required  to  be  made  by  seniority  in  all 
cases.]  Under  these  circumstances  the  practice 
developed  in  the  cases  of  officers  who  failed 
morally  upon  examination  for  promotion,  al- 
though otherwise  qualified,  of  placing  them  on 
the  retired  list  "under  the  first  section  of  the 
act  of  April  21,  1864,  as  not  recommended  for 
promotion"  (e.  g.,  case  of  Master  Fred'k  E. 
Upton,  vol.  28,  Ex.  Bd.  Recs.,  No.  34,  morally 
disqualified  because  "insubordinate  in  dis- 
position;" p.  174  Na\'y  Register,  1910;  Da\ds 
Admr.  v.  U.  S.,  24  Ct.  CIs.,  442).  Under  this 
state  of  law  the  bill  now  incorporated  in  the 
act  of  1882  was  introduced  in  Congress  "to 
promote  the  efficiency  of  the  Navy,"  and  was 
attached  as  an  amendment  to  the  naval  appro- 
priation bill  in  the  House  by  unanimous  con- 
sent. That  the  purpose  of  this  legislation  was 
to  abolish  the  practice  of  placing  upon  the 
retired  list  of  the  Navy  officers  who  had  failed 
to  qualify  for  promotion  by  reason  of  moral 
deficiency  can  hardly  be  seriously  questioned. 
However,  if  a  doubt  could  exist  it  would  be 
set  at  rest  once  for  all  by  reference  to  the  report 
of  the  Committee  on  Naval  Affairs  of  the  House 
in  recommending  favorable  action  upon  this 
measure  [citing  Holy  Trinity  Church  v.  U.  S., 
143  U.  S.,  465,  noted  in  "Introduction,"  under 
"Statutory  Construction,"  VI,  D,  3J.  The 
committee  report  stated:  "Under  the  law,  as 
it  now  exists,  many  officers  who  have  been  edu- 
cated at  the  expense  of  the  Government  and 


623 


Sec.  1456. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


who  have  durmf);  their  service  contracted 
habits  of  intem])erau(e  and  other  immoral  prac- 
tices which  disqualify  them  for  the  honorable 
Sosition  of  an  ofhcer  in  the  United  States 
avy,  are  placed  on  the  retired  list,  and  their 
services  are  lost  to  the  Government,  \yhen, 
but  for  their  conduct,  they  would  remain  on 
the  active  list.  Therefore,  your  committee 
recommend  the  passage  of  this  bill  with  an 
amendment,  so  that  the  Government  may  rid 
itself  of  a  lot  of  useless  official  material." 
(File  26260-1392,  June  29,  1911,  pp.5,  etseq.) 

The  report  of  the  committee  shows  that  this 
legislation  was  not  intended  to  be  limited  in 
its  scope  to  officers  who  are  physically  or 
mentally  unfit  for  sea  service  by  reason  of 
their  own  misconduct,  but  was  intended  to 
apply  to  those  officers  who,  while  physically, 
mentally,  and  professionally  qualified  in  every 
respect  to  perform  the  duties  of  their  grade, 
might  still  be  unfit  to  maintain  discipline  and 
exercise  command  over  hundreds  of  men  whose 
respect  they  had  forfeited  by  habits  resulting 
in  a  reputation  discreditable  to  the  "honorable 
position  of  an  officer  of  the  Navy."  Such 
officers  were  not  entitled  to  be  placed  on  the 
retired  List  of  the  Navy,  which  was  intended 
as  a  reward  for  long  and  faithful  service,  and 
not  as  a  refuge  for  "a  lot  of  useless  official 
material,"  whose  worthlessness  was  due  to 
their  own  misconduct,  and  the  practice  of  re- 
tiring such  officers  was  the  evil  which  Congress 
intended  to  remedy.  (File  26260-1392,  June 
29,  1911,  p.  8.) 

This  very  provision  of  the  act  of  1882  has  been 
before  the  courts  and  held  to  authorize  the 
discharge  of  an  officer  who  was  found  by  the 
promotion  boards  to  be  physically,  mentally, 
and  professionally,  but  not  morally  qualified 
for  promotion.  (File  26260-1392,  June  29, 
1911,  p.  18,  citing  Jouett  v.  U.  S.,  28  Ct.  01s., 
257.) 

In  general,  under  section  1456,  Revised  Stat- 
utes, and  theactof  Augusts,  1882,  misconduct 
is  not  a  ground  for  retirement.  However,  an 
officer  who  fails  to  qualify  for  promotion  is 
subject  to  discharge  under  the  latter  act  only 
as  the  result  of  a  finding  of  moral  disquah- 
fication.     (File  26260-874,  June  3,  1910.) 

Retirement  of  officer  found  not  morally 
qualifi.ed  for  promotion. — See  note  to  section 
1447,  Revised  Statutes. 

What  constitutes  moral  iixtfitness. — ^Any 
discussion  of  the  question  whether  an  officer 
can  be  morally  unfit  for  promotion  without 
his  mental,  professional,  or  physical  qualifi- 
cations being  affected,  becomes  purely  idle 
and  academic  in  view  of  the  fact  that  Congress 
has  itself,  by  express  language  in  the  act  of 
April  21,  1864  (sec.  1496,  R.  S.),  provided  that 
no  officer  shall  be  promoted  to  a  higher  grade 
until  his  moral,  as  well  as  his  mental,  profes- 
sional, and  physical  fitness  shall  have  been 
established  to  the  satisfaction  of  the  board  of 
examining  officers.  (File  26260-1392,  June  29, 
1911,  p.  10.) 

"An  officer  may  be  'incapable,'  either 
mentally,  physically,  or  morally;  for  although 
he  may  possess  a  strong  mind  and  robust 
frame,  yet  if  his  moral  perception  of  right  and 
wrong  be  so  blunted  and  debased  as  to  render 
him  unreliable,  he  could  hardly  be  regarded 


as  the  capable  officer  to  be  intrusted  with  the 
lives  of  his  countrymen  and  the  property  and 
honor  of  his  country."  (8  Op.  Atty.  Gen., 
223,  233.) 

No  specific  definition  of  what  constitutes 
moral  unfitness  is  desirable  or  should  be 
attempted.  A  similar  question  was  considered 
by  the  Court  of  Claims  in  the  case  of  Swaim 
V.  U.  S.  (28  Ct.  Cls.,  173),  with  reference  to 
what  constitutes  conduct  unbecoming  an 
officer  and  a  gentleman  or  conduct  to  the 
prejudice  of  good  order  and  discipline,  the 
court  stating  that  tliis  is  "beyond  the  bounds 
of  exact  formula,  and  must  depend  more  or 
less  upon  the  circumstances  and  peculiarities 
in  each  case."  The  question  should,  accord- 
ingly, be  left  to  be  determined  by  "a  board  of 
experienced,  intelligent,  impartial,  miUtary 
experts  *  *  *  in  the  exercise  of  a  sound 
discretion."  (File  26260-1392,  June  29,  1911, 
p.  10.) 

That  the  legislation  was  not  intended  to 
apply  only  to  officers  whose  misconduct  re- 
sulted in  actual  want  of  capacity  to  serve  at  sea 
is  shown  by  the  fact  that,  as  it  passed  the 
Senate,  it  read  "from  any  cause  arising  from 
his  misconduct  or  want  of  capacity  not  caused 
by  or  in  consequence  of  the  performance  of  his 
duty,"  but  the  House  Committee  on  Naval 
Affaii-s,  in  accordance  with  its  views  on  the 
subject  as  stated  in  its  report  above  quoted, 
recommended  that  the  words  italicized  be 
stricken  from  the  bill,  which  recommendation 
was  followed  and  the  bill  as  thus  amended  was 
passed  with  certain  immaterial  changes  as  a 
clause  of  the  naval  appropriation  act.  (File 
26260-1392,  June  29,  1911,  p.  9.) 

In  any  event,  a  case  of  repeated  failure  to 
discharge  indebtedness  is  obviously  an  instance 
of  moral  unfitness  for  promotion.  (File  26260- 
1392,  June  29,  1911,  p.  11.) 

It  is  not  a  private  matter  of  concern  to  the 
officer  only,  but  in  the  Navy  an  officer's  neglect 
to  pay  just  indebtedness  is  a  matter  of  concern 
to  the  entire  service,  of  which  he  is  a  part,  and 
renders  him  unfit  for  the  duties  of  his  position. 
(File  26260-1392,  June  29,  1911,  p.  11.) 

Evidence  that  included  a  list  of  cases  in 
which  an  officer  had  failed  to  liquidate  in- 
debtedness admitted  to  be  just;  that  he  had 
been  convicted  by  general  court-martial  upon 
the  charges  of  scandalous  conduct  tending  to 
the  destruction  of  good  morals  and  conduct 
unbecoming  an  officer  and  a  gentleman,  in 
that  he  had  been  expelled  from  an  Army  and 
Na\^  club  for  nonpayment  of  his  indebtedness 
to  the  club  and  for  breaking  his  promise  to 
arrange  for  such  payment,  clearly  justified  the 
finding  of  the  board  that  he  was  not  morally 
qualified  for  promotion.  (File  26260-1392, 
June  29,  1911,  p.  12.  But  see  President 
Tail's  ruling  in  this  case,  noted  below.) 

In  the  case  noted  in  the  preceding  paragraph, 
it  was  reported  by  the  examining  board, 
June  21,  1911:  "After  duly  deliberating  on  all 
the  matters  herein  referred  to,  the  board 
believes  that  the  candidate  did  not  use  his 
utmost  exertions  toward  Liquidating  his  debts 
as  quickly  as  possible,  but  that  from  the  con- 
traction of  the  ffi-st  debts  to  the  payment  of  the 
last  one,  on  June  14,  1911,  he  has  shown  a 
degree  of  moral  turpitude  which  unfits  liim  for 


624 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1456. 


promotion."  The  Secretary  of  the  Navy 
recommended  approval  of  the  board's  finding. 
President  Taft's  decision  in  the  case  was  as 
follows:  "I  am  not  satisfied  from  the  showing 
made  that  Lieut.  Burt's  character  has  been 
shown  to  be  such  as  to  unfit  him  morally  for 
promotion.  Of  course,  the  failure  to  pay 
debts  and  the  circumstances  under  which  the 
debts  were  contracted,  when  their  payment  is 
postponed  or  neglected,  may  constitute  con- 
duct unbecoming  an  officer.  But  here  the  debts 
have  been  paid;  and  they  were  not  so  great 
in  amount  or  so  many  as  to  indicate  utter 
recklessness  when  it  is  considered  that  Lieut. 
Burt  is  a  married  man  and,  necessarily,  had 
the  expense  of  a  family  upon  Mm  in  addition 
to  that  attendant  upon  his  sea  service;  I  am 
bound  to  say  that  the  specifications  wMch 
were  handed  to  me  as  to  the  immorality  in- 
volved in  Ms  relation  to  debts  seem  to  be, 
many  of  them,  strained,  and  I  can  not  tMnk 
that  it  is  just  to  eliimnate  Mm  from  the  naval 
service  for  such  delinquency."  (File  26260- 
1392:15,  Jan.  2,  1912.) 

Passed  Asst.  Paymaster  Louis  A.  Yorke  was 
examined  for  promotion  December  14,  1886;  on 
December  17,  1886,  the  board  reported  him 
mentally  but  not  professionally  or  morally 
qualified.  The  evidence  upon  which  the  board 
based  its  findings  that  he  was  not  morally  quali- 
fied for  promotion  consisted  principally  of  sev- 
eral complaints  which  had  been  made  against 
him  to  the  department,  consisting  of  alleged 
indebtedness  to  individuals,  and  of  neglect, 
refusal,  or  evasion  to  pay  the  same."  He  was 
found  by  the  medical  board  to  be  "physically 
qualified  to  perform  all  his  duties  at  sea."  In 
accordance  with  the  Navy  Department's  rec- 
ommendation, the  President  approved  the 
findings  of  the  boards,  February  19,  1887,  and 
the  officer  was  discharged  with  one  year's  pay. 
Subsequently  bills  were  repeatedly  intro- 
duced in  Congress  "for  the  relief  of  Louis  A. 
Yorke, ' '  one  of  which,  providing  for  his  restora- 
tion to  the  Navy  and  immediate  retirement, 
passed  both  Houses  during  the  Fifty-third  Con- 
gress, second  session ,  but  was  vetoed  by  the  Pres- 
ident. The  message  of  the  President,  returning 
the  bill  to  Congress  without  his  approval,  August 
11,  1894(26  Cong.  Rec,  8411),  was  in  part  as  fol- 
lows: "Considerable  evidence  was  before  the 
board  showing  quite  a  large  amount  of  personal 
indebtedness  owing  by  the  candidate,  and  it 
appeared  that  in  a  few  instances  his  accounts 
with  the  Navy  Department  had  not  been 
promptly  settled.  It  was  also  shown  that  he 
did  not  at  all  times  deposit  the  Government 
money  intrusted  to  his  care  in  the  places  re- 
quired by  law  and  the  regulations  of  the  Navy. 
In  connection  with  his  personal  indebtedness, 
incidents  and  circumstances  were  brought  to 
light  which  certainly  indicated  that  he  enter- 
tained very  lax  ideas  of  honest  dealing  and 
fairness,  and  wMch  developed  a  disregard  of  the 
obligations  and  requirements  of  his  position  as 
an  officer  in  the  Navy.  He  was  given  abundant 
opportunity  to  meet  and  explain  every  damag- 
ing allegation  and  every  adverse  inference  aris- 
ing from  the  evidence,  and  his  claim,  not  with- 
out foundation  it  appeared,  that  the  charges 
against  him  were  instigated  by  malice,  was 
doubtless  given  full  weight.     *    *    *    On  the 


facts  as  ])resented  he  would  seem  to  be  out  of 
place  among  those  who,  though  still  compen- 
sated by  the  Government,  have  been,  on  account 
of  age,  long  and  honorable  service,  or  disabili- 
ties incurred  in  the  discharge  of  duty,  relieved 
from  fmther  activity.  *  *  *  I  have  no 
doubt  malicious  feeUng,  growing  out  of  domes- 
tic difficulties,  entered  into  the  affair  and  gave 
impetus  to  the  search  after  inculpating  evi- 
dence; but  facts  were  nevertheless  established 
beyond  any  reasonable  doubt  wMch  abun- 
dantly uphold  these  findings."  Bills  to  the 
same  effect  were  subsequently  introduced  in 
Congress  from  time  to  time,  but  the  measure 
was  never  again  passed  by  both  Houses.  (See 
file  26260-1392,  June  29,  1911.) 

Boatswain  Louis  W.  Sopp  was  examined  for 
promotion  March  1,  1906;  the  examimng  board 
found  that  he  had ' '  the  mental  and  professional, 
but  not  the  moral  qualifications,  by  reason  of 
his  failure  to  pay  his  debts,  which  is  a  result 
of  his  own  misconduct,  to  perform  efficiently 
all  his  duties,  both  at  sea  and  on  shore,  of  the 
grade  to  which  he  is  to  be  promoted,"  and  the 
board  therefore  did  not  recommend  him  for 
promotion.  The  Secretaiy  of  the  Navy  recom- 
mended President's  approval,  April  9,  1906, 
stating:  "Approval  of  this  finding  would  result 
in  his  discharge  from  the  service  pursuant  to 
theactof  Augusts,  1882,  *  *  *.  Persistent 
failure,  without  adequate  cause,  to  meet  just 
pecumary  obligations  is  regarded  as  a  proper 
basis  for  a  finding  of  moral  disqualification 
under  this  provision.  The  Bureau  of  Naviga- 
tion and  the  Judge  Advocate  General  recom- 
mend approval  of  the  finding.  In  this  recom- 
mendation I  concur.  Mr.  Sopp  has  afforded 
no  satisfactory  explanation  of  his  many  delin- 
quencies in  paying  his  debts.  In  all  the  cases 
above  mentioned  payment  was  unduly  delayed 
*  *  *;  and  in  some  iastances  promises  of 
prompt  payment  appear  to  have  been  lightly 
broken.  Such  conduct  as  that  of  Mr.  Sopp  in 
these  matters  can  not  but  bring  discredit  upon 
the  service,  both  at  home  and  abroad,  and  it 
shows,  in  the  judgment  of  the  department,  that 
the  offender  is  out  of  place  as  an  officer  in  the 
Navy.  I  advise  that  the  finding  of  the  naval 
examimng  board  be  approved,  and  that  Mr. 
Sopp  be  discharged  with  one  year's  pay  pur- 
suant to  the  act  of  1882."  On  April  10,  1906, 
the  finding  and  recommendation  of  the  naval 
examining  board  were  approved  by  the  Presi- 
dent, and  Boatswain  Sopp  directed  to  be  dis- 
charged with  one  year's  pay.  (See  file  26260- 
1392,  June  29,  1911.) 

Gunner  George  L.  Mallery  was  examined 
October  12,  1904.  Board  found  "that  Gunner 
George  L.  Mallery,  U.  S.  Navy,  has  the 
mental  and  professional,  but  not  the  moral 
qualifications,  by  reason  of  failure  to  pay  his 
just  debts,  which  is  the  result  of  his  own  mis- 
conduct, to  perform  efficiently  all  the  duties, 
both  at  sea  and  on  shore,  of  the  grade  to  which 
he  is  to  be  promoted,  and  do  not  recommend 
him  for  promotion."  The  Secretary  of  the 
Navy,  February  28,  1905,  recommended  Presi- 
dent's approval,  stating:  "The  act  of  August 
5,  1882,  provides  that  *  *  *  .  The  de- 
partment regards  tMs  provision  of  law  as  appli- 
cable to  the  case  under  consideration.  I  advise 
that  the  findings  of  the  naval  examining  board 


625 


Sec.  1456. 


Ft.  2.  REVISED  STATUTES. 


The  Navy. 


bo  approved,  and  that  Mr.  Mallory  be  dis- 
charged with  one  year's  pay,  pursuant  to  the 
act  cited."  This  recommendation  was  ap- 
proved and  the  officer  dischai'sjed  accordingly. 
(See  file  26200-1392,  June  29, 1911.) 

Lieut.  Robert  11.  Osborne,  U.  S.  Na\^, 
■was  examined  for  promotion,  June  9,  1908, 
an(i  found  mentally  but  not  morally  or  pro- 
fessionally (qualified,  his  moral  failure  being 
due  to  indifference  in  contracting  financial 
obligations  which  he  was  unable  to  discharge. 
Upon  reconsideration  the  board  reported: 
"The  board  respectfully  adheres  to  its  original 
decision,  and  in  doing  so  respectfully  invites 
attention  to  the  fact  that  the  deficiency  found 
in  moral  qualifications  was  not  the  failure  of 
Lieut.  Osborne  to  pay  the  debt  owed  Mr.  W.  E. 
Rouse  as  such ,  but  his  failure  to  keep  his  written 

Eromise  to  pay  in  a  certain  time  and  method, 
is  failure  to  show  any  practical  reason  for  such 
neglect  of  his  promise,  and  his  failure  to  meet 
his  obligations  in  the  sense  of  making  any  ar- 
rangement with  his  creditor  after  the  matter 
had  been  brought  to  his  attention  by  the  de- 
partment. In  the  opinion  of  the  board  such 
absolute  neglect  and  indifference  to  his  obliga- 
tions and  to  his  promise  show  a  standard  of 
morals  below  that  which  should  be  required  of 
naval  officers. ' '  It  was  contended  that, ' '  while 
liability  to  intoxication  would  undoubtedly 
render  an  officer  imfit,  it  is  inconceivable  that 
the  existence  of  indebtedness  would  impair 
his  ability  to  perform  sea  duty"  within  the 
meaning  of  the  act  of  August  5,  1882.  The 
Judge  Advocate  General  and  the  Secretary  of 
the  Navy  recommended  that  the  finding  of  the 
board  be  approved  by  the  President,  and  that 
Lieut.  Osborne  be  discharged  with  one  year's 
pay.  Counsel  submitted  an  additional  brief 
to  the  President,  who  ad^dsed  the  Secretary  of 
the  Navy  that  he  was  inclined  to  be  as  lenient 
as  possible  for  the  reason  that  this  officer  had 
contracted  a  physical  disability  in  the  line  of 
duty  and  in  the  face  of  the  enemy;  but  in  view 
of  the  finding  of  the  board,  he  did  not  think  it 
to  the  interest  of  the  Navy  that  the  officer  be 
retained  on  the  active  list;  and  added:  "Would 
it  not  be  possible  to  make  an  arrangement 
whereby  he  would  be  retired,  of  course  pro- 
vided that  his  debts  should  be  paid  before  he 
is  retired .  "  In  response,  the  Secretary  of  the 
Navy,  June  29,  1908  (file  26260-38),  informed 
the  President  that  the  case  of  this  officer  was 
within  the  provision  of  the  act  of  August  5, 
1882,  "and  it  is  therefore  mandatory,  if  you 
approve  the  proceedings  and  findings  of  the 
majority  of  the  board,  that  he  be  not  retired." 
The  Secretary  further  stated:  "The  only  alter- 
native would  be  that  you  disapprove  the  pro- 
ceedings and  findings,  or  the  findings,  of  the 
board  of  which  Rear  Admiral  Richardson 
Clover,  U.  S.  Navy,  is  president,  in  which 
case  the  status  of  Mr.  Osborne  would  revert 
to  that  which  he  occupied  before  he  was 
examined,  and  a  new  examining  board  would 
be  ordered  before  which  he  would  be  required 
to  appear  as  in  the  first  instance."  The  Presi- 
dent thereupon  approved  the  findings  and 
recommendation  of  the  board,  July  3,  1908, 
and  the  officer  was  accordingly  discharged  with 
one  year's  pay.  (See  file  26260-1392,  June  29, 
1911.) 


Boatswain  Alfred  H.  Hewson  was  examined 
by  a  naval  examining  board,  May  3,  1909. 
Board  found:  "That  Boatswain  Alfred  H. 
Hewson,  U.  S.  Na\y,  has  the  mental,  but 
not  the  moral  nor  the  professional  qualifica- 
tions, to  perform  efficiently  all  the  duties,  both 
at  sea  and  on  shore,  of  the  grade  to  which 
he  is  to  be  promoted,  and  do  not  recommend 
him  for  promotion."  The  Acting  Secretary  of 
the  Navy,  May  17,  1909,  recommended  ap- 
proval of  the  board 's  finding,  stating  as  follows: 
"Upon  re\-ie-«ang  the  case  it  appears  that  Mr. 
Hewson  has  been  habitually  intemperate  and 
that  he  has  shown  a  lack  of  proper  and  officer- 
like appreciation  in  his  methods  of  dealing 
with  his  financial  affairs.  *  *  *  j  have, 
therefore,  to  advise  that  the  findings  of  the 
naval  examining  board  be  approved,  and  that 
Boatswain  Alfred  H.  Hewson,  U.  S.  Navy,  be 
discharged  with  one  year 's  pay  in  conformity 
with  the  provisions  of  the  act  of  August  5, 
1882 . ' '  This  recommendation  was  approved  by 
the  President  and  the  officer  discharged  accord- 
ingly.    (See  file  26260-1392,  June  29, 1911.) 

Gunner  Edmund  DuB.  Gould  was  examined 
for  promotion  April  4,  1908;  the  examining 
board  found  that  he  had  the  mental,  but 
not  the  professional  fitness,  and  from  the  un- 
favorable evidence  before  it  the  board  was  not 
satisfied  as  to  his  moral  fitness  and  did  not 
recommend  him  for  promotion.  Upon  a  second 
appearance  before  an  examining  board  it  was 
found  that  he  had  the  mental,  but  not  the  moral 
and  professional  qualifications,  by  reason  of  his 
failure  to  pay  his  debts,  and  not  making  the 
percentage  necessary  to  qualify,  and  he  was 
not  recommended  for  promotion.  The  Judge 
Advocate  General,  in  his  comment  on  the  above 
case,  said  in  part:  "There  are  eight  cases  in 
which  the  Bureau  of  Na\'igation  referred  com- 
munications to  this  officer  concerning  instances 
of  indebtedness  which  had  been  brought  to  the 
bureau's  attention,  to  none  of  which  did  he 
make  reply.  With  regard  to  these  debts,  it 
appears  that  the  one  due  *  *  *  -v^as  con- 
tracted prior  to  April,  1907,  and  probably  some 
time  before  that,  but  it  was  only  discharged  on 
October  18,  1908,  shortly  before  being  ordered 
to  appear  for  examination.  Concerning  the  bill 
owed  to  *  *  *  it  appears  that  it  had  been 
running  for  at  least  a  year,  and  that  Mr.  Gould 
onljr  paid  it  so  recently,  if  at  all,  that  he  was 
awaiting  a  receipt.  The  candidate  was  given 
an  opportunity  to  show  by  documentary  evi- 
dence or  otherwise  that  he  had  liquidated  all 
claims  against  him,  but  instead  of  doing  so  he 
made  no  further  communications  to  the  board 
until  he  was  again  ordered  to  appear  by  the 
department.  Even  then  he  could  present  no 
receipts,  or  at  least  did  not  do  so,  which  did 
not  create  a  favoral^le  inference.  In  view  of 
this  persistent  neglect  to  pay  his  debts,  and  his 
further  neglect  to  reply  to  the  letters  addressed 
to  him  upon  these  matters,  *  *  *  and  his 
failure  to  adduce  anything  while  before  the 
examining  board  to  substantiate  the  statements 
that  he  had  paid  certain  of  his  debts,  it  is  recom- 
mended that  the  finding  of  the  naval  examining 
board  in  this  case  be  approved."  The  Secre- 
tary of  the  Navy  recommended  approval  of  the 
board 's  finding ,  stating  in  part :  ' '  From  a  rf /view 
of  the  record  of  proceedings  of  the  naval  examin- 


626 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1456. 


ing  board ,  it  would  appear  that  this  officer  has 
persistently  neglected  to  pay  his  debts,  that  he 
has  failed  to  reply  to  communications  addressed 
to  him  officially  upon  these  matters,  and  that  he 
has  failed  to  m^ake  any  satisfactory  explanation 
or  excuse  for  his  remissness  in  the  above  particu- 
lars. ' '  The  board 's  finding  was  approved  by 
the  President,  and  the  officer  discharged  ac- 
cordingly.  (See  file 26260-1392,  June  29,  1911.) 

In  the  case  of  Passed  Asst.  Surg.  Frederick 
W.  Olcott,  Deceml)er  4,  1900,  the  board  stated: 
"We  hereby  certify  that  Passed  Asst.  Surg. 
Frederick  W.  Olcott,  United  States  Navy,  has 
the  mental  but  not  the  moral  or  professional 
qualifications  to  perform  efficiently  all  the 
duties,  both  at  sea  and  on  shore,  of  the  grade 
to  which  he  is  to  be  promoted,  and  we  do  not 
recommend  him  for  promotion.  This  conclu- 
sion is  based  upon  adverse  reports  furnished  by 
the  Navy  Department,  embraced  in  reports  on 
fitness,  special  reports,  and  record  of  a  general 
com-t-martial,  charging  drunkenness,  improper 
use  of  drugs,  unreliability,  neglect  of  duty,  and 
failure  to  pay  bills.  These  reports  and  Passed 
Asst.  Surg.  Olcott 's  replies  thereto,  have  been 
carefully  considered.  Taken  separately  they 
indicate  a  feeble  sense  of  official  responsibility, 
and  collectively  a  degree  of  moral  dullness 
that  does  not  warrant  recommendation  for  pro- 
motion." Board's  finding  approved  by  the 
President  and  officer  discharged.  (See  file 
26260-1392,  June  29,  1911.  Note:  This  officer 
was  restored  to  the  Navy  and  placed  upon  the 
retired  list,  pursuant  to  a  special  act  of  Congress, 
approved  Feb.  13,  1911.) 

In  the  case  of  Passed  Asst.  Paymaster  Edwin 
B.  Webster,  January  6,  1898,  the  report  was  as 
follows:  "The  board  decided  that  Passed 
Asst.  Paymaster  Edwin  B.  Webster,  U.  S. 
Navy,  has  the  mental  and  professional,  but  not 
the  moral  qualifications,  by  reason  of  the  facts 
mentioned  in  the  charges  formulated  by  the 
board  from  the  record,  which  are  a  result  of 
his  own  misconduct,  to  perform  efficiently  all 
his  duties,  both  at  sea  and  on  shore,  of  the  grade 
to  which  he  is  to  be  promoted,  and  do  not 
recommend  him  for  promotion."  The  charges 
formulated  by  the  board  were  as  follows:  "1st. 
Habits  of  gambling,  as  indicated  by  the  letter 
of  F.  L.  Crompton,  of  Shanghai,  China,  dated 
July  26,  1897.  2d.  Carelessness  in  the  settle- 
ment of  debts,  as  indicated  by  the  correspond- 
ence between  the  candidate  and  his  creditors 
and  the  Navy  Department.  3d.  Transactions 
of  the  candidate  characterized  as  'disgraceful ' 
and  'scandalous, '  by  the  Secretary  of  the  Navy, 
and  published  in  General  Court-Martial  Order 
No.  76,  dated  July  28,  1896."  The  members 
of  the  board  recommended,  in  a  letter  to  the 
Navy  Department,  that  "he  be  put  on  proba- 
tion for  the  period  of  one  year,"  etc.  March 
4,  1898,  the  finding  of  the  naval  examining 
board  was  approved  by  the  President,  and  the 
officer  ordered  discharged  with  one  year's  pay. 
(See  file  26260-1392,  June  29,  1911.) 

Commander  George  W.  Wood,  June  29,  1893, 
board  reported:  "By  reason  of  the  facts  ad- 
duced by  the  evidence  as  to  his  habits  of 
drunkenness,  and  the  contracting  of  debts 
beyond  his  means,  and  neglect  of  creditors  since 
his  last  promotion,  we  find  that  Commander 
Wood  is  morally  unfit  for  promotion  to  the  next 


higher  grade  *  *  *.  We  hereby  certify 
that  Commander  George  W.  Wood,  U.  S. 
Navy,  has  the  mental,  but  not  the  moral 
and  professional  qualifications,  to  perform 
efficiently  all  the  duties,  both  at  sea  and  on 
shore,  of  the  next  higher  grade,  and  do  not 
recommend  him  for  promotion."  Board's  find- 
ing approved,  and  officer  discharged.  In  this 
case  there  was  a  minority  report  to  the  effect  that 
the  officer  was  mentally,  morally,  and  profes- 
sional ly  qualified.  (See  file  26260-1392,  June 
29,  1911.) 

Evidence  of  moral  unfitness. — From  a 
legal  point  of  view,  evidence  of  reputation  is 
to  be  accepted  in  preference  to  e\-idence  of 
specific  acts  of  immorality.  (File  26260- 
1392:29,  Feb.  12,  1912,  p.  42.) 

The  law  provides  that  no  officer  of  the  Navy 
shall  be  promoted  to  a  higher  grade  "until  his 
mental,  moral,  and  professional  fitness  to  per- 
form all  his  duties  at  sea  have  been  established 
to  the  satisfaction  of  a  board  of  examining  offi- 
cers appointed  by.  the  President  (sees.  1496, 
1497,  li.  S.).  The  same  rule  therefore  applies 
to  the  officer's  moral  qualifications  as  to  his 
mental  and  professional  qualifications.  All 
alike  must  be  "established"  to  the  satisfaction 
of  the  board.  The  result  of  failing  morally  is 
discharge  under  the  act  of  1882;  the  result  of 
failing  professionally  is  suspension  from  pro- 
motion or  discharge  under  section  1505  Revised 
Statutes.  There  is  no  reason  for  a  distinction 
with  reference  to  the  burden  of  proof  as  to  the 
method  of  determining  the  candidate's  moral 
and  his  professional  qualifications,  even  if  such 
a  distinction  were  possible  under  the  law.  If 
an  officer's  unfitness  for  promotion  had  to  be 
proved  by  the  Government  beyond  a  reason- 
able doubt,  the  law  would  so  obviously  not 
"promote  the  efficiency  of  the  Navy"  that  it 
is  unnecessary  to  comment  upon  the  deplorable 
results  which  would  follow  such  a  construction. 
(File  26260-1392,  June  29,  1911,  p.  32.) 

It  is  axiomatic  that  an  officer  upon  examina- 
tion for  promotion  in  the  American  Navy  is  not 
being  tried  for  his  misdeeds  or  crimes,  which 
must  be  proved  against  him  beyond  a  reason- 
able doubt,  but  is  availing  himself  of  an  oppor- 
tunity to  establish  his  qualifications  for  a 
reward  which  is  to  be  conferred  only  upon  those 
who  can  affirmatively  demonstrate  their  abso- 
lute fitness  therefor.  (File  26260-1392,  June 
29,  1911,  p.  26^.) 

'The  question  of  an  officer's  amenability  to 
trial  by  court-martial  for  acts  affecting  his 
moral  fitness  can  not  have  any  bearing  upon 
Ihe  question,  for  should  the  officer  be  so  tried 
and  convicted,  or  even  acquitted,  by  court- 
martial  the  examining  board  would  still  have 
the  duty  cast  uponit,  by  express  provisions  of 
law,  of  examining  into  the  facts  and  outcome 
of  such  trial  in  order  to  determine  for  itself  the 
effect,  if  any,  that  should  be  given  thereto  with 
reference  to  the  officer's  qualifications  for  pro- 
motion in  the  Navy.  (File  26260-1392,  June 
29,  1911,  p.  16;  C.  M.  O.  13-1916,  p.  6.) 

'The  Government  will  not,  and  should  not, 
appoint  an  officer  to  a  higher  grade  unless 
satisfied  beyond  a  reasonable  doubt  of  his  fit- 
ness. It  is  fundamental  error  to  contend  that 
candidates  for  promotion  have  a  property  in 
the  offices  they  hold  and  are  entitled  to  promo- 


627 


Sec.  1456. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


tioii  to  still  higher  ofiices  unless  the  Govern- 
ment shall  be  able  to  defend  itself  against  such 
claim  by  an  amount  of  evidence  that  would 
suiHce  to  convict  the  candidates  of  crime; 
and  even  that,  if  the  Government  has  been 
negligent  in  the  matter  of  defending  itself 
against  the  claim  of  candidates  to  serve  it,  and 
has  not  proven  its  case  against  them  \\'ithin 
two  years,  then  it  is  helpless  and  must  keep  in 
employment  and  promote  to  still  higher  grades 
otticers  about  whose  fitness  the  gravest  doubts 
exist.  No  one  has  a  vested  right  to  an  office, 
especially  if  such  office  be  a  creature  of  statute. 
Such  offices  Congress  creates,  abolishes,  and 
limits  at  will.  The  act  of  August  5.  1882,  is 
therefore  entirely  constitutional.  Congress 
having  complete  power  might,  if  it  wishes,  stop 
all  promotions.  It  did  actually  impede  pro- 
motions by  the  act  of  1882.  It  might  declare 
that  no  one  should  hereafter  be  promoted  who 
was  not  over  six  feet  high,  or  it  might  even 
direct  that  all  officers  not  of  the  required 
height  should  be  discharged.  A  fortiori,  it 
can  pass  an  act  like  that  of  1882,  dii'ecting  the 
discharge  of  officers  whose  unfitness  arises  from 
their  own  misconduct.  The  burden  of  estab- 
lishing his  fitness  should  be  upon  an  officer 
who  asks  to  be  promoted  to  a  higher  grade,  just 
as  it  is  on  one  who  seeks  original  appointment, 
and  when  the  time  comes  for  these  stated  exam- 
inations, the  same  rule  should  apply  to  one 
who  seeks  to  hold  on  to  an  office.  He  must  be 
discharged  unless  he  shows  his  fitness  to  serve 
the  Government.  (Letter  of  Secretary  of  the 
Navy  to  the  President,  June  29,  1893,  in  case 
of  Pay  Inspector  John  H.  Stevenson's  exami- 
nation for  pay  director.) 

"The  testimony  in  this  case  seems  to  the 
department  to  sustain  the  finding  of  the  board. 
It  IS  true  there  is  much  conflict  in  the  e\'idence, 
and  it  is  perhaps  also  true  that  a  majority  of  the 
witnesses  testified  in  favor  of  the  applicant; 
but  the  proper  method  of  arriving  at  the  truth 
is  to  weigh  e\ddence,  and  not  to  count  wit- 
nesses. It  is  within  the  experience  of  every 
lawyer  that  habitual  drunkenness  is  a  most 
difficult  fact  to  establish.  The  evidence  of 
the  witnesses  who  did  testify  to  the  applicant's 
habits  of  intemperance  is  so  full  and  complete 
as  to  largely  outweigh  in  the  opinion  of  the 
department,  the  negative  testimony  offered 
by  the  applicant."  (File  1223-94,  Apr.  18, 
1894,  examination  of  Frank  W.  Nichols.) 

The  evidence  requisite  to  establish  before  a 
naval  examining  board  the  unfitness  of  a  candi- 
date for  promotion  by  reason  of  habits  of  in- 
temperance need  not  be  of  such  a  positive  and 
conclusive  character  as  would  be  necessary  to 
convict  an  officer  on  trial  for  similar  offenses 
before  a  court-martial.  In  the  latter  case  the 
biu-den  rests  upon  the  Government  to  establish 
the  offense  while  in  the  former  case  it  rests 
upon  the  candidate,  who  must  demonstrate 
affirmatively  his  fitness  for  promotion.  (Memo. 
of  J.  A.  G.,  May  27,  1898,  p.  34,  examina- 
tion of  Asst.  Paymaster  Francis  J.  Semmes. ) 

Improvement  of  oflELcer's  moral  qualifi- 
cations.— The  fact  that  an  officer  had  improved 
the  condition  of  his  financial  affairs  prior  to  hia 
examination  could  not  have  much  bearing  on 
his    case.     "Such    improvement    *    *    *    is 


not  unusual  in  cases  where  an  officer  whose  rec- 
ord has  heretofore  been  bad  is  soon  to  be  due  for 
promotion,  but,  unfortunately,  the  reformation 
is  usually  of  short  duration."  (File  26260- 
1392,  June  29,  1911,  p.  13,  quoting  Memo,  of 
J.  A.  G.,  Mar.  3,  1898.  examination  of  Passed 
Asst.  Paymaster  Edwin  B.  Webster,  U.  S.  N.) 

Lieut.  Charles  P.  Burt,  U.  S.  Navy, 
was  examined  January  26,  1912,  and  found 
mentally,  morally,  and  professionally  qualified 
to  perform  efficiently  all  the  duties,  both  at 
sea  and  on  shore,  of  the  grade  to  which  he  was 
to  be  promoted,  the  board  stating:  "Comparing 
the  evidence  as  to  the  candidate's  conduct  and 
habits  during  the  early  part  of  the  period  under 
investigation  for  the  purpose  of  determining  his 
fitness  for  promotion,  and  his  financial  methods 
and  habits  now,  the  board  is  of  the  opinion  that 
so  great  a  change  for  the  better  has  taken  place, 
a  process  of  rehabilitation  which  has  extended 
over  a  period  of  five  years,  that  the  candidate 
has  shown  strength  of  character  and  a  strong 
determination  to  correct  and  avoid  the  error  of 
his  former  ways."  (The  board's  finding  was 
approved  by  the  President,  Feb.  13,  1912.) 

Act  of  August  6,  1882,  not  a  penal 
statute. — The  power  to  formulate  articles  for 
the  government  of  the  Navy  and  to  provide 
punishment  for  individual  officers  for  violation 
thereof  is  conferred  upon  Congress  by  the  clause 
of  the  Constitution  authorizing  it "  to  make  rules 
for  the  government  and  regulation  of  the  land 
and  naval  forces;"  the  power  to  provide  what 
persons  may  be  appointed  or  enlisted  in  the 
naval  service,  the  qualifications  they  must 
possess,  and  the  total  number  of  the  entire 
force,  is  conferred  by  the  clause  authorizing  the 
Congress  "to  provide  and  maintain  a  Navy." 
Statutes  passed  under  the  first  clause  mentioned 
are  penal  and  are  to  be  enforced  by  courts- 
martial;  those  passed  under  the  second  clause 
are  enacted  in  the  interest  of  the  Navy  at  large 
and  are  to  be  administered  by  the  President, 
either  alone  or  with  the  aid  of  examining  boards 
or  such  other  instrumentalities  as  may  be  de- 
termined upon  by  Congress.  Persons  excluded 
from  appointment  for  lack  of  any  required  quali- 
fication— health,  age,  nationality,  height, 
temperament,  or  any  other  condition  that  Con- 
gress might  see  fit  to  impose — are  not  being 
punished  imder  penal  laws  for  their  failure  to 
measure  up  to  the  necessary  requirements  but 
are  merely  incidentally  affected  by  the  Govern- 
ment 's  policy  as  defined  by  Congress  in  the  exer- 
cise of  its  undoubted  right  to  say  who  shall  and 
who  shall  not  be  appointed  to  the  military  or 
naval  service.  Such  statutes  are  not  penal  in 
their  nature  any  more  than  those  providing 
that  no  man  shall  be  allowed  to  vote  unless  he 
possesses  a  given  amount  of  property  or  is  of 
certain  age  or  has  resided  in  the  State  or  district 
for  a  specified  period,  etc.  (File  26260-1392, 
June  29,  1911,  p.  24^,  citing  Street  v.  U.  S.,  24 
Ct.  Cls.,  230,  noted  under  sec.  1454,  R.  S.  Op. 
Atty.  Gen.,  Feb.  15,  1918,  file  26282-326:2.) 

Even  if  the  act  of  1882  be  regarded  as  a  penal 
statute,  nevertheless  the  words  should  be  given 
the  sense  which  ' '  promotes  in  the  fullest  manner 
the  policy  and  objects  of  the  legislature." 
(File  26260-1392,  June  29,  1911,  p.l8,  citing, 
U.  S.  V.  Hartwell.  6  Wall.,  385,  395,  and  U.  S. 


628 


The  Navy. 


PL  2 .  RE  VISED  STAT  UTES. 


Sec.  1456. 


V.  Lacher,  134  U.   S.,  624;  see  also,    "Intro- 
duction,"   under    "Statutory    Construction," 

VI,  E,  3,  "Penallaws.") 

The  purpose  of  Congress  was  to  promote 
the  efficiency  of  the  Navy  by  ridding  it  of 
officers  who,  for  any  cause  arising  from  their 
own  misconduct,  did  not  measiu-e  up  to  that 
high  standard  which  should  be  demanded  of  a 
candidate  for  appointment  or  promotion  in  the 
American  Navy.  So  far  from  intending  to 
impose  any  pimishment  upon  the  officer  who 
was  weighed  and  foimd  wanting,  Congress  in 
this  same  act  exhibited  a  remarkably  liberal 
policy  toward  such  officers  by  proAiding  that 
they  should  be  given  on  discharge  "one  year's 
pay."  No  stronger  eAddence  could  be  desired 
to  establish  that  the  act  of  1882  was  not  intended 
as  a  penal  statute.  If  the  finding  of  the  ex- 
amining board  had  been  intended  by  Congress 
to  be  the  equivalent  of  a  conviction  by  court- 
martial,  it  would  not  have  provided  that  the 
officer  so  found  deficient  should  be  presented, 
as  an  absolute  gratuity,  with  "one  year's  pay," 
amounting  in  the  present  case  to  $3,120.  Offi- 
cers resigning  from  the  service  with  the  most 
honorable  records  are  not  given  any  gratuity 
whatever;  and  it  was  not  until  the  act  of  May 
13,  1908,  that  the  widows  or  other  beneficiaries 
of  officers  killed  or  otherwise  djdng  in  the  line 
of  duty  were  gi^'en  a  gi-atuity,  and  in  their 
cases  it  was  proA-ided  that  the  amoimt  should 
be  equal  only  to  six  months'  pay.  (File  26260  - 
1392,  June  29,  1911,  p.  22;  compare  7  Comp. 
Dec,  404,  noted  under  sec.  1454,  R.  S.,  "One 
year's  pay  allowed  officer  wholly  retired  is  not 
a  gratuity.") 

Examination  of  moral  fitness  not  a 
"trial." — An  officer  upon  examination  for 
promotion  is  not  on  trial  for  crime  and  there- 
fore the  application  of  constitutional  limita- 
tions upon  the  procedure  of  such  trials  is  in  no 
sense  pertinent.  With  reference  to  the  Army 
board  convened  imder  the  act  of  July  15,  1870 
(16  Stat.,  314),  providing  for  the  mustering 
out  by  the  President,  \\'ith  one  year's  pay,  of 
officers  foimd  by  a  board  to  be  unfit  for  the 
proper  discharge  of  their  duties  "for  any  cause, 
except  injuries  incurred  or  disease  contracted 
in  the  line  of  their  duty,"  it  was  stated  by  the 
Court  of  Claims  in  the  case  of  Din-yea  r;.  U.  S. 
(17  Ct.  Cls.,  24):  "It  may  be  that  the  board 
did  not  proceed  with  that  strict  regard  to  the 
rules  of  e\T.dence  which  are  required  in  courts- 
martial  and  ci\'il  courts  of  justice,  but  it  is 
not  necessary  for  us  to  consider  how  far  its 
irregiUarities  extended.  In  our  opinion  the 
board  was  not  a  coiu-t  of  any  kind."  (File 
26260-1392,  June  29,  1911,  p.  30;  see  also,  note 
to  Constitution,  fifth  amendment,  "Due 
process  of  law.") 

It  was  stated  by  the  Court  of  Claims  that  the 
act  of  1870,  pro\'iding  for  mustering  out  officers 
of  the  Army,  did  not  contemplate  discharges 
for  offenses;  that  the  cause  [prescribed  therein 
and  for  which  the  claimant  in  the  case  under 
consideration  was  discharged,  was  "unfit- 
ness;" that  if  the  claimant  had  been  guilty 
of  conduct  unbecoming  an  officer  or  prejudicial 
to  the  ser\dce,  there  were  abundant  provisions 
of  law  for  bringing  him  to  trial  before  a  court- 
martial  and  dismissing  him  from  the  ser\ice 
withouttheboimty  of  additional  pay;  that  the 


act  of  1870  was  intended  to  reach  an  entirely 
different  class  of  officers;  it  was  in  no  sense 
penal,  the  officers  against  whom  it  operated 
were  not  criminals,  the  ad\'isory  board  had  no 
jurisdiction  of  offenses,  and  was  without  au- 
thority to  put  officers  upon  their  trial  for  any 
fault.  The  foregoing  is  directly  applicable 
to  the  act  of  1882  relating  to  the  Navy.  (File 
26260-1392,  June  29,  1911,  p.  22,  citing  Sher- 
burne V.  U.  S.,  16  Ct.  Cls.,  491.) 

The  only  question  before  an  examining 
board  when  considering  an  officer's  moral 
qualifications  is  his  fitness  for  promotion.  The 
board  is  in  no  sense  a  court  before  which  the 
candidate  is  on  trial  for  his  misdeeds.  The 
punishment  for  such  misdeeds  is  provided  for 
by  other  statutes  and  is  not  a  question  to  be  con- 
sidered by  examining  boards;  but  the  bearing, 
if  any,  wliich  such  misconduct  may  have  upon 
the  officer's  fitness  for  promotion  is  a  question 
before  the  board  and  must  be  determined  by 
it  wholly  independent  of  any  disciplinary 
proceedings  to  which  the  officer  has  rendered 
himself  liable.  In  considering  this  question 
and  submitting  its  report  the  examining  board 
is  not  administering  a  penal  statute.  (File 
26260-1392,  June  29,  1911,  p.  23.) 

The  pm-pose  of  the  act  of  August  5,  1882,  as 
shown  by  the  title  of  the  bill  as  it  first  passed 
the  Senate,  was  "to  promote  the  efficiency  of 
the  Navy"^'  and  not  to  pro\'ide  for  the  adminis- 
tration of  justice,  nor  to  provide  for  the  punish- 
ment of  drunkenness.  This  was  to  be  done 
by  discharging,  instead  of  promoting  or  retiring, 
officers  who  were  found  on  examination  not 
qualified  "for  the  honorable  position  of  an 
officer  in  the  United  States  Navy."  (File 
26260-1392,  June  29,  1911,  p.  21.) 

The  contention  that  cases  of  moral  unfit- 
ness should  be  disposed  of  by  com-t-martial 
proceedings  is  based  upon  an  utter  misconcep- 
tion of  the  causes  invohing  such  moral  unfit- 
ness, as  well  as  the  duties  and  powers  of  ex- 
amining boards.  As  the  history  of  the  servict* 
shows,  moral  disqualification  in  a  vast  majority 
of  cases  is  due  to  a  series  of  matters,  each  per- 
haps trivial  in  itself,  but  wliich,  taken  as  a 
whole,  amount  to  a  habit  sufficiently  serious  to 
disqualify  an  officer  for  promotion  in  the  U. 
S.  Navy.  But  an  officer  of  the  Navy  can 
not  be  court-martialed  for  a  "habit."  The 
Navy  Regulations  pro\ide  that  "offenses  shall 
not  be  allowed  to  accumulate  in  order  that 
sufficient  matter  may  thus  be  collectively  ob- 
tained for  a  trial."  And  article  61,  Articles  for 
the  Government  of  the  Navy  (sec.  1624,  R.  S.), 
pro\ddes  that  "no  person  shall  be  tried  by 
court-martial  or  otherwise  punished  for  any 
offense,  except  as  provided  in  the  following 
article  [desertion],  which  appears  to  have 
been  committed  more  than  two  years  before 
the  issuing  of  the  order  for  such  trial  or  punish- 
ment." Furthermore,  a  naval  examiiiing 
])oard  has  authority  and  exercises  functions 
as  extensive  in  their  nature  as  those  exercised 
by  com-ts-martial,  and  in  its  consideration  of 
an  officer's  qualifications  for  promotion  it  de- 
termines for  itself  all  questions  arising,  in- 
dependently of  any  disciplinary  action  that 
mayor  could  have  been  taken  in  the  premises. 
(File  26260-1392,  June  29,  1911,  p.  14,  citing 
Op  J    V.  G.,  Dec.  4,  1897,  case  of  Passed  Asst. 


629 


Sec.  1456. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


Pa^Tnastor  ITarrv  R.  Sullivan,  file  5878-97,  9 
Op'.  J.  A.  G.,  2!)r),  :UCt,  310;  Davis  v.  U.  S.,  24 
Ct.  Cls.  442.) 

It  is  further  contended  that,  if  the  act  of 
1882  is  held  to  apply  to  an  olhcer's  moral  quali- 
fications for  promotion,  this  would  be  equiv- 
alent to  investing  examining  boards  with  the 
powers  of  a  court-martial,  thereby  authorizing 
the  dismissal  of  an  officer  by  indirection, 
without  the  sentence  of  a  court-martial,  which 
is  forliidden  by  the  Articles  for  the  Govern- 
ment of  the  Navy.  If  Congress  sees  fit  to  pro- 
vide that  officers  not  possessing  certain  qualifi- 
cations which  it  has  made  a  prerequisite  to  pro- 
motion shall  be  discharged  from  the  service 
upon  the  finding  of  an  examining  board,  its 
power  to  do  so  can  not  successfully  be  ques- 
tioned. (File  26260-1392,  June  29,  1911,  p. 
17,  citing  Crenshaw  v.  IT.  S.,  134  U.  S.,  99.) 

Character  of  discharge  issued  londer  act 
of  1882. — As  has  been  held  bv  the  Attorney 
General  (13  Op.  Atty._  Gen.,  16,  'l8),  "an  officer 
or  soldier,  upon  his  discharge  from  the  service, 
may  be  regarded  as  entitled  to  an  honorable 
discharge,  unless  he  is  under  sentence  of  dis- 
honorable dismissal,  or  unless  he  has  been 
convirted  of  an  infamous  offense,  and  is  sen- 
tenced to  punishmnent  therefor  during  the  re- 
mainder oi  his  term  of  service,  such  as  cow- 
ardice, etc.,  with  either  of  which  conditions  an 
honorable  discharge  would  be  incompatible." 
Officers  discharged  under  the  act  of  1882  can 
not,  therefore,  be  regarded  as  having  been 
dishonorably  discharged,  which  conclusivelv 
shows,  even  aside  from  the  gratuity  accom- 
panying it,  that  the  act  of  1882  is  not  in  anv 
aspect  a  penal  statute  imposing  "punishment" 
in  a  legal  sense  upon  the  officer  found  not 
morally  qualified  for  promotion.  (File  26260- 
1392,  June  29,  1911,  p.  26.) 

It  is  evident  that  the  word  "discharged  "  as 
used  in  the  act  of  1882  was  intended  to  be 
synonymous  with  the  words  "wholly  retired," 
and  it  has  been  given  that  construction  by  the 
Navy  Department  and  by  Congress.  Thus,  a 
bill  "(S.  1438),  which  passed  both  Houses  dur- 
ing the  Fifty-third  Congress,  second  session, 
pro\dded  that  Passed  Assistant  Paymaster 
Louis  A.  Yorke,  who  had  been  discharged  from 
the  service  under  the  act  of  1882,  should  be 
restored  to  the  Navy  as  of  the  date  that  he  was 
"wholly  retired."  The  Secretary  of  the  Navy 
in  reporting  upon  the  bill  in  question  (Senate 
Kept.  No.  265,  53rd  Cong.,  2d  sess.),  stated 
"that  his  retirement  (wholly)  from  the  service 
was  justified  by  the  finding  of  the  board." 
The  Senate  and  House  naval  committees,  in 
reporting  upon  the  same  bill  (Senate  Rept.  No. 
489;  House  Rept.  No.  1990;  53d  Cong.,  1st 
sess.),  stated  with  respect  to  the  history' of  Mr. 
Yorke's  case,  that  "by  this  board  he  was  wholly 
retired  from  the  naval  service."  (File  26260- 
1392,  June  29,  1911,  p.  25^;  as  to  meaning  of 
"wholly  retired,"  see  note  to  sec.  1454,  R.  S.) 

One  year's  pay  not  a  gratuity. — See  note 
to  section  1454,  Revised  Statutes,  under  "One 
year's  pay  allowed  officer  wholly  retired  is  not  a 
gratuity" ;  compare  note  to  this  section,  above, 
under  "Act  of  August  5,  1882,  not  a  penal 
statute"  and  "Character  of  discharge  issued 
under  act  of  1882." 


Amount  of  pay  on  discharge. — Section 
1505,  Revised  Statutes,  as  amended  bv  the  act 
March  11,  1912  (37  Stat.,  73),  provides  for 
dropping  an  officer  from  the  service  "with 
not  more  than  one  year's  pay"  upon  failing  to 
qualify  professionally  for  promotion.  Held,  that 
said  provision  is  indefinite  and  authority  is  not 
given  to  the  accounting  officers  to  determine 
how  much  pay,  if  any,  shall  be  received  by  an 
officer  so  dropped,  but  the  discretion  in  de- 
termining the  amount  is  left  to  the  executive, 
through  the  administrative  department.  Where 
the  President  directed  that  theofficer  be  dropped 
under  said  statute,  without  directing  any 
pay  be  given  him,  none  can  be  allowed  by  the 
accounting  officers,  and  he  is,  therefore,  entitled 
to  pay  to  the  date  he  received  notice  of  dis- 
charge, and  no  more.     (18  Comp.  Dec,  922.) 

Revocation  of  President's  action. — A 
naval  examining  board  finds  an  officer  morally 
disqualified  for  promotion.  The  finding  is  ap- 
proved by  the  President,  and  under  the  provi- 
sions of  the  act  of  August  5,  1882,  it  is  directed 
that  he  be  discharged  with  one  year's  pay. 
The  President  thereafter  revokes  his  approval, 
stating  that  he  inadvertently  signed  the  order 
confirming  the  report  of  the  board ,  because  it  was 
supposed  to  be  a  case  in  which  the  formal  ap- 
proval would  follow  as  of  course,  instead  of  one 
in  which  there  was  a  dispute  and  to  which  his 
attention  had  previously  been  particularly  in- 
vited. Held,  that  because  of  the  multiplicity 
and  variety  of  cases  requiring  the  action  of  the 
President,  it  is  manifestly  impossible  for  him  to 
give  careful  consideration  to  each  one,  and  when 
he  inadvertently,  by  mistake  of  fact,  takes 
action,  as  shown  in  this  case,  that  he  did  not 
intend  to  take,  it  would  seem  to  be  a  case  to 
which  the  legal  principle  authorizing  correc- 
tion of  a  mistake  of  fact,  is  peculiarly  applica- 
ble. Accordingly,  held,  that  the  President  had 
power  to  cancel  the  approval  of  the  board's 
recommendation,  and  to  remit  the  case  for  the 
consideration  of  another  board,  and  having  so 
exercised  his  power,  such  action  had  the  effect 
of  placing  the  officer  in  the  same  situation  he 
would  have  been  in  if  the  President  had  not 
approved  said  recommendation  and  issued 
said  order  directing  that  he  be  discharged;  the 
officer  was  never  out  of  the  service  by  reason  of 
the  President's  action,  and  is  therefore  entitled 
to  pay  accordingly.     (18  Comp.  Dec,  676.) 

In  the  above  case  the  officer  was,  November 
2,  1911,  discharged  by  the  Navy  Department  in 
accordance  with  the  President's  order;  January 
2,  1912,  the  President  directed  that  his  signa- 
ture be  canceled;  January  4,  1912,  the  Secre- 
tary of  the  Navy  notified  the  officer  that,  by 
direction  of  the  President,  hia  discharge  had 
been  canceled;  January  6,  1912,  the  Secretary 
of  the  Navy  wrote  requesting  the  officer  to  re- 
turn for  cancellation  the  Navy  Department's 
letter  notifying  him  of  his  dismissal  from  the 
service  of  the  United  States.  The  letter  was 
received  by  the  officer  January  8,  1912,  and  the 
request  complied  with.  In  the  meantime,  no 
successor  was  appointed.     (18  Comp.  Dec,  676.) 

It  has  been  repeatedly  decided  by  the  courts 
that  when,  by  any  of  the  legal  methods,  an 
officer  of  the  Army  or  Navy  goes  out  of  the  serv- 
ice by  the  act  of  the  President,  his  connection 


630 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1457. 


with  the  ser\-ice  is  severed,  and  no  revocation 
by  the  President  of  his  legal  acts  of  dismissal 
can  have  the  effect  to  restore  the  person  to  his 
former  office  (citing  Mini  mack  v.  U.  S.,  10  Ct. 
Cls.,  5S4,  97  U.  S.,  426,  437;  Corson  v.  U.  S.,  17 
Ct.  Cls.,  344,  114  U.  S.,  619;  McBlair  v.  U.  S., 
19  Ct.  Cls.,  528).  These  cases  are  inapplicable 
to  the  facts  stated  in  the  case  noted  above.  (18 
Comp.  Dec,  676.) 

Lieut.  Charles  P.  Burt  was  examined  for  pro- 
motion November  22,  1909,  and  found  phys- 
ically and  mentally,  but  not  morally  or  profes- 
sionally, qualified ;  the  finding  as  to  moral  dis- 
qualification was  disapproved,  the  finding  as 
to  professional  disqualification  approved,  and 
he  was  suspended  from  promotion  in  accordance 
with  section  1505,  Revised  Statutes.  Upon  ex- 
piration of  the  period  of  suspension  he  was 
again  examined  and  found  mentally  and  pro- 
fessionally, but  not  morally,  qualified;  the 
record  was  returned  to  the  board  for  further 
consideration  as  to  his  moral  qualifications;  the 
board  again  reported  that  he  was  not  morally 
quaUfied  for  promotion.     A   minority   report 


stated  that  he  was  mentally,  morally,  and  pro- 
fessionally qualified.  The  majority  finding  of 
the  board  was  approved  by  the  President,  Octo- 
ber 28,  1911,  and  the  officer  accordingly  dis- 
charged from  the  Navy.  On  January  4,  1912, 
the  Secretary  of  the  Navy,  by  direction  of  the 
President,  canceled  the  President's  approval, 
for  reasons  stated  above.  The  President's  letter 
of  January  2,  1912,  directing  that  his  signature 
be  canceled,  stated:  "I  am  aware,  in  directing 
the  cancellation  of  my  signature  as  inadvertent, 
I  am  exercising  a  power  the  legality  of  which 
may  be  questioned,  but  as  the  action  is  in  the 
interest  of  equity  and  justice  I  have  taken  it, 
leaving  it  to  the  courts,  should  the  question  ever 
be  brought  to  them,  to  pass  upon  its  legality." 
(File  26260-1392:15.  The  Comptroller  of  the 
Treasury,  in  his  decision  above  noted,  sus- 
tained the  legality  of  the  President's  action,  and 
the  officer's  consequent  right  to  pay  thereunder, 
and  the  question  was  thus  not  raised  in  the 
courts.) 

For  other  cases. — See  notes  to  sections  1447, 
1452,  1454,  Revised  Statutes. 


Sec.  1457.  [Grade  and  status  of  retired  officers.]  Officers  retired  from 
active  service  shall  be  placed  on  the  retired  list  of  officers  of  the  grades  to  which 
they  belonged  respectively  at  the  time  of  their  retirement,  and  continue  to  be 
borne  on  the  Navy  Register.  They  shall  be  entitled  to  wear  the  uniform  of 
their  respective  grades,  and  shall  be  subject  to  the  rules  and  articles  for  the 
government  of  the  Navy  and  to  trial  by  general  court-martial.  The  names  of 
officers  wholly  retired  from  the  service  shall  be  omitted  from  the  Navy  Regis- 
ter.—(16  Jan.,  1857,  c.  12,  s.  4,  v.  11,  p.  154.  3  Aug.,  1861,  c.  42,  ss.  22,  23, 
24,  V.  12,  pp.  290,  291.     30  Jan.,  1875,  c.  30,  v.  18,  f.  304.) 


Active  duty  for  retired  officers. — See  section 
1462,  Revised  Statutes,  and  note  thereto. 

Articles  for  the  government  of  the  Navy  are 
embodied  in  section  1624,  Re\dsed  Statutes, 
and  amendments  thereto. 

Command,  retired  officers  withdrawn  from. — 
See  section  1459,  ReWsed  Statutes. 

Commissions  with  advanced  rank  to  be  issued 
to  officers  of  the  Army,  Na\y,  and  Marine 
Corps  on  the  retired  list  advanced  in  rank 
by  operation  of  or  in  accordance  with  law. 
(Act  Mar.  4,  1911,  36  Stat.,  1354.) 

Marine  officers  retired  generally  with  the  "rank" 
held  on  the  active  list. — See  sections  1254 
and  1622,  Re\-ised  Statutes. 

Officers  retired  as  captain,  promoted  to  rear 
admiral,  and  subsequently  having  war 
service,  were  to  be  regarded  as  ha^dng  been 
retired  as  rear  admirals,  under  the  pro\d- 
sions  of  section  1589,  Re\'ised  Statutes, 
now  obsolete. 

Officers  temporarily  advanced  in  rank  or  grade 
during  war  with  Germany,  and  retired 
while  holding  such  temporary  rank,  except 
for  physical  disability  incurred  in  line  of 
duty,  shall  be  retired  with  grade  or  rank 
to  which  permanently  entitled.  (Act  May 
22,  1917,  sec.  9,  40  Stat.,  86;  see  also  act 
June  4,  1920,  sec.  2,  41  Stat.,  834.) 

Officers  may  be  wholly  retired  when  incapacity 
is  not  an  incident  of  the  service. — See  sec- 
tion 1454,  Revised  Statutes. 


Pay  of  retired  officers. — See  section  1588,  Re- 
vised Statutes.  When  employed  on  active 
duty. — See  section  1592,  Revised  Statutes 
and  note  to  section  1462,  Revised  Statutes. 

Promotion  or  increase  of  pay  on  the  retired  list, 
proliibited  by  act  August  5,  1882  (22  Stat., 
286);  see  note  to  sections  1460,  1461,  and 
1591,  Revised  Statutes.  Promotion  on  re- 
tired list  under  certain  specified  condi- 
tions was  authorized  by  act  of  July  1,  1918 
(40  Stat.,  717). 

Promotion  on  retired  list,  without  increase  in 
pay,  was  authorized  by  sections  1460,  1461, 
and  1591,  Revised  Statutes. 

Rank  and  pay  of  officers  on  retired  list  shall  be 
the  same  as  when  they  are  retired.  (Act 
Aug.  5,  1882,  22  Stat.,  286.) 

Rank  of  officers  retired  under  section  8,  Navy 
personnel  act  of  March  3,  1899  (30  Stat., 
1004),  to  create  vacancies,  shall  be  same 
as  when  retired.  (Act  Aug.  22,  1912,  37 
Stat.,  328.) 

Rank  on  retirement,  increased  on  account  of 
ci\il-war  servdce.  (Act  Mar.  3,  1899,  sec. 
11,  30  Stat.,  1007;  act  June  29,  1906,  34 
Stat.,  554;  and  act  Mar.  3,  1909,  35  Stat., 
753.) 

Rank  on  retirement,  increased  in  cases  of  offi- 
cers failing  in  physical  examination  for 
promotion.  (Act  Mar.  4,  1911,  36  Stat., 
1267.)  But  this  does  not  apply  to  officers 
of  the  rank  of  lieutenant  commander  and 
above.  (Art  Aug.  29.  1916.  39  Stat.,  579,  as 
amended  by  act  July  1, 1918,  40  Stat.,  718.) 


631 


Sec.  1467. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Rank  on  retirement  of  staff  officers,  increased  in 

cert ;iiu  cases.     (Sec.  1481,  R.  S.) 
Rank  on  retirement  of  chiefs  of  bureaus,  in- 
creased in  certain  cases. — See  section  1473, 
Revised  Statutes,  and  note  to  section  421, 
ReWsod  Statutes. 
Rank  on  retirement  of  midshipmen. — See  note 

to  section  1445,  Revised  Statutes. 
Rank  of  officers  shall  not  be  changed,  except  in 
accordance  Avith  tlio  provisions  of  existing 
law,  and  by  and  with  the  advice  and  con- 
sent of  the  Senate.  (Sec.  1506,  R.  S.,  as 
amended  by  act  June  17,  1878,  20  Stat., 
144.) 
Restoration  of  retired  officers  to  active  list. — See 

section  1465,  Revised  Statutes. 
Rules  for  the  government  of  the  Navy  are  con- 
tained in  Navy  regulations,  issued  under 
authority  of  sections  161  and  1547,  Revised 
Statutes.     See  notes  to  said  sections. 
Staff  officers  are  retired  generally  with  rank 
held  on  active  list.     (Sec.  1482  R.  S.    See 
also,  as  to  retirement  of  staff  officers,  sees. 
1473  and  1481,  R.  S.) 
Trial  of  retired  officers  by  general  court-martial. 
See  note  to  Constitution,  article  1,  section 
8,  clause  14,  under  "IV.  Jurisdiction  of 
courts-martial." 
Unauthorized    wearing   of   the    uniform   was 
prohibited  by  act  June  3,  1916,  section  125 
(39  Stat.,  216),  as  amended  by  act  August 
29, 1916,  section  1  (39  Stat.,  649),  and  June 
4,  1920,  sec.  8  (41  Stat.,  836.)     See  also 
act  February  28,  1919  (40  Stat.,  1202). 
Historical  note. — The  reserved,  or  as  it  is 
sometimes  with  more  accuracy  called,  the  re- 
tired list  of  the  Navy,  was  created  under  the 
provisions  of   the  act  of   February   28,    1855 
(10  Stat.,  616),   to  promote  the  efficiency  of 
the   Navy.     The   second  section  of  that  act 
declared  that  those  officers  so  placed  on  the 
reserved  list  should  receive  the  leave  of  ab- 
sence pay,  or  the  furlough  pay  to  which  they 
might  be  entitled  when  so  placed,  according 
to  the  report  of  the  board  and  approval  of  the 
President,  and  should  be  ineligible  to  further 
promotion,   but  subject  to  the  orders  of  the 
Navy  Department  at  all  times  for  duty,  and 
it  limited  the  reserved  list  to  the  grades  of  cap- 
tain,   commander,    lieutenant,    masters,    and 
passed  midshipmen.     The  22d  section  of  the 
act  of  August  3,  1861  (12  Stat.,  290),  providing 
for  the  better  organization  of  the  military  es- 
tablishment, enacted  that  if  any  officer  of  the 
Navy  shall  have   become  or  shall   hereafter 
become,  incapable  of  performing  the  duties  of 
his  office,  he  shall  be  placed  upon  the  retired 
list,  and  withdrawn  from  active  service  and 
command,   and  from  the  line  of  promotion, 
with    certain    pay    and    emoluments    therein 
specified,  graduated  according  to  the  rank  of 
the  different  classes  of  officers.     The  officers 
named  are  captains,  commanders,  lieutenants, 
surgeons,  paymasters,  engineers,  masters,  and 
passed    midshipmen.     (10    Op.    Atty.    Gen  , 
107.) 

Application  to  Navy  of  decisions  relative 
to  Army  retired  list. — The  status  of  the 
retired  lii-t  appears  to  be  fundamentally  the 
same  in  the  Army  and  Navy,  and  the  nature 
and  bearings  of  a  case  as  to  the  authority  con- 
ferred upon  the  President  with  reference  to  the 


one  may  be  taken  as  indicative  of  the  char- 
acter of  legislation  with  reference  to  the  other. 
(25  Op.  Atty.  Gen.,  316.) 

Civilian  can  not  be  placed  on  retired  list 
under  general  laws. — A  person  can  not 
legally  1)e  placed  on  the  retired  list,  unless  he 
is  an  officer  of  the  description  to  which  the 
retired  provisions  extend.  Accordingly,  a 
former  officer  no  longer  in  the  service  can  not 
claim  the  benefits  of  retirement.  (14  Op. 
Atty.  Gen.,  506;  affirmed  17  Op.  Atty.  Gen.,  9.) 
_  An  officer  on  being  wholly  retired  becomes  a 
civilian  and  can  be  readmitted  to  the  service 
only  by  a  new  appointment;  J>ut  he  can  not  be 
appointed  at  once  to  the  retired  list.  A  civil- 
ian can  not  be  appointed  as  a  retired  officer. 
He  must  first  be  appointed  an  officer  on  the 
active  list,  of  a  certain  rank.  None  but  a  com- 
missioned officer  on  the  active  list  of  the  Army 
can  be  placed  on  the  retired  list.  (Miller  v. 
U.  S.,  19  Ct.  Cls.,  338,  353.) 

None  but  officers  in  active  service  being 
eligible  for  retirement,  the  action  of  the  Pres- 
ident revoking  a  previous  order  dropping  an 
officer  from  the  rolls  and  putting  him  on  the 
retired  list  of  the  Army  was  inefficient  for  this 
purpose.     (19  Op.  Atty.  Gen.,  202,  205.) 

By  section  1094  of  the  Revised  Statutes  the 
officers  of  the  Army  on  the  retired  list  are  a 
part  of  the  Army  of  the  United  States,  there- 
fore no  one  can  be  upon  that  list  who  is  not 
an  officer  appointed  in  the  manner  required 
by  the  Constitution.  (Wood  v.  U.S.,  15  Ct 
Cls.,  151;  afiirmed  107  U.  S.,  414.) 

Congress  has  frequently  exercised  the  power 
of  changing  the  mere  rank  of  officers  without 
invoking  the  Constitutional  power  of  the  Ex- 
ecutive to  appoint  the  incumbents  to  new 
offices.  But  when  it  has  been  the  purpose  to 
place  on  the  retired  list  one  who  has  been  dis- 
charged from  the  service,  who  no  longer  holds 
an  office  in  the  Army,  Congress  has  provided 
for  his  restoration  or  reappointment  in  the 
manner  pointed  out  by  the  Constitution,  gen- 
erally by  the  President  alone,  and  then  has 
authorized  his  retirement.  (Wood  iJ.  U  S 
15  Ct.  Cls.,  151,  citing  Collins  v.  U.  S.,  15  Ct! 
Cls.,  22.) 

For  other  cases  see  note  to  section  1443, 
Revised  Statutes. 

Status  of  retired  oflB.cers;  part  of  the 
Navy. — Officers  on  the  retired  list  of  the  Navy 
are  still  in  the  Navy,  and  remain  subject  to  the 
Rules  and  Articles  for  the  Government  of  the 
Navy,  as  well  as  to  trial  by  court-martial.  (13 
Comp.  Dec,  590.) 

A  retired  naval  officer  is  a  "salaried  officer" 
within  the  meaning  of  the  act  of  July  9,  1888 
(25  Stat.,  243),  providing  for  actual  necessary 
expenses  to  be  allowed  salaried  officers  of  the 
United  States  under  certain  conditions. 
(Franklin  v.  U.  S.,  29  Ct.  Cls.,  6.) 

Pay  is  a  fixed  and  direct  amount  given  by 
law  to  officers  in  the  Navy  in  consideration  of 
and  as  compensation  for  their  personal  service. 
Retired  pay  is  given  partly  for  past  service, 
partly  for  present  liability  to  military  disci- 
pline, and  partly  because  the  officer  may  be 
assigned  to  active  duty.  Although  he  has 
been  placed  on  the  retired  list  he  is  still  an 
officer  of  the  Navy,  is  liable  to  discipline,  and 


632 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1457. 


may  be  assigned  to  active  duty.  (17  Comp. 
Dec,  919.) 

A  retired  naval  officer  who  has  not  been 
wholly  retired  from  the  ser\ice  is  an  officer  of 
the  United  States.     (30  Op.  Atty.  Gen.,  298.) 

A  retired  officer  of  the  Army  or  Navy  holds 
an  office  with  a  salary  or  annual  compensation 
attached.  His  pay  is  not  a  mere  pension.  (19 
Comp.  Dec,  IGO,  citing  11  Comp.  Dec,  422, 
29  Op.  Atty.  Gen.,  397,  29  Op.  Atty.  Gen.,  503; 
but  see  contra,  Geddes  v.  U.  S.,  38  Ct.  Cls.,  428, 
and  Comp.  Dec,  Sept.  26,  1910,  file  26254-539, 
noted  in  Annual  Report  of  the  U.  S.  Ci\al 
Service  Commission,  1911,  p.  126.) 

An  officer  of  the  U.  S.  Army  or  Marine 
Corps,  retii-ed  from  active  service  only  and 
not  wholly  retired  from  service,  is  an  officer 
in  the  employ  of  the  Government  and  so  within 
the  prohibition  of  section  1782,  Revised  Stat- 
utes [superseded  and  repealed  by  Criminal 
Code,  act  Mar.  4,  1909,  35  Stat.,  1109,  1153]. 
(29  Op.  Atty.  Gen.,  397.) 

Officers  of  the  Navy  are  not  entitled  to 
increased  retired  pay  for  length  of  service  after 
retirement;  time  on  the  retired  list  is  not  to  be 
counted  as  ser\ice  in  computing  longevity  pay. 
(15  Comp.  Dec,  767.) 

An  officer  on  the  retired  list  is  "serving"  in 
the  Army  within  the  meaning  of  section  1262, 
Revised  Statutes,  providing  that  "there  shall 
be  allowed  and  paid  to  each  commissioned 
officer  below  the  rank  of  brigadier  general, 
including  chaplains  and  others  having  assimi- 
lated rank  or  pay,  ten  per  centum  of  their  cur- 
rent yearly  pay  for  each  term  of  five  years' 
service. "  The  years  so  passed  in  the  service 
after  retirement  as  well  as  before  are  included 
in  the  provision  for  increased  pay  for  each  five 
years'  service.  (U.  S.  v.  Tyler,  105  U.  S.,  244; 
Tyler  v.}5.  S.,  16  Ct.  Cls.,  223;  the  rule  pre- 
scribed in  this  decision  was  modified  by  act 
Mar.  2,  1903,  32  Stat.,  932.) 

The  retired  pay  of  officers  of  the  Army  is 
"salary,"  within  the  meaning  of  the  act  of 
•May  10,  1916,  section  6,  restricting  payment  of 
more  than  one  salary.     (22  Comp.  Dec,  643.) 

Pay  of  a  retired  officer  of  the  Coast  Guard  is 
salary  within  the  meaning  of  the  act  of  May  10, 
1916,  prohibiting  under  certain  conditions  the 
payment  of  more  than  one  salary  to  an  officer 
or  employee.     (22  Comp.  Dec,  673.) 

The  law  under  which  these  officers  are  re- 
tired does  not  require  their  consent,  nor  does  it 
require  that  the  order  for  their  retirement 
shall  be  based  upon  any  absolute  incapacity 
for  further  service.  It  may  be  based  upon  age, 
which,  being  fixed  at  a  minimum  of  62  years, 
by  no  means  implies  such  incapacity.  It  may 
be  based  upon  wounds  received  in  battle,  but 
the  person  retired  for  this  cause  may  for  many 
piu-poses  be  a  very  useful  officer.  The  pro\d- 
sions  of  the  statutes  and  the  uniform  treatment 
of  these  officers  conform  to  this  view,  and  neces- 
sarily imply  that,  while  not  required  to  per- 
form full  ser\'ice,  they  are  a  part  of  the  Army, 
and  may  be  assigned  to  such  duty  as  the  laws 
and  regulations  permit.  (U.  S.  v.  Tyler,  105 
U.  S.,  244;  29  Op.  Atty.  Gen.,  403.) 

An  officer  of  the  Army  is  still  an  officer  of  the 
United  States  when  placed  On  the  retired  list. 
(In  re  Winthrop,  31  Ct.  Cls.,  35.) 


Officers  on  the  retired  list  are  a  part  of  the 
Army.  They  may  be  assigned  to  duty  and 
wear  uniforms,  and  continue  to  be  borne  on  the 
Army  Register,  and  are  subject  to  trial  by  coiul- 
martial._    (Miu-phy  v.  U.  S.,  39  Ct.  Cls.,  178.) 

A  retired  officer  of  the  Armj^  not  being  a 
ci\'ilian,  is  not  entitled  to  payment  from  the 
appropriation  for  "ci^'ilian  lecturers"  at  the 
Naval  War  College.     (14  Comp.  Dec,  663.) 

A  retired  officer  in  the  Revenue-Cutter  Serv- 
ice [now  Coast  Guard]  holds  an  "office.  "  (26 
Op.  Atty.  Gen.,  460.) 

Officers  of  the  Army  on  the  retired  list  hold 
public  office;  but  an  advancement  of  such  an 
officer  as  authorized  by  act  of  April  23, 1904  (33 
Stat.,  264),  on  account  of  civU-war  8er\'ice, 
does  not  create  an  office  and  is  not  accomplished 
by  an  exercise  of  the  appointing  power.  (25 
Op.  Atty.  Gen.,  185;  25  Op.  Atty.  Gen.,  312. 

An  officer  when  transferred  to  the  retired 
List  is  not  divested  of  one  office  and  appointed 
to  another.  He  continues  as  a  retired  officer 
under  the  appointment  which  he  held  on  the 
active  list  and  even  where  he  acquires  a  higher 
rank  on  retirement  this  does  not  call  for  an  ex- 
ercise of  the  appointing  power.  The  situation, 
accurately  stated,  is  that  when  an  officer  is 
transferred  from  the  active  to  the  retired  list 
there  is  no  change  in  the  office  which  he  holds 
but  merely  a  change  in  his  status  and  func- 
tions under  his  existing  appointment.  The 
fact  of  his  retirement  creates  a  new  office  in 
the  military  service,  the  number  of  officers  of 
his  grade  thereby  being  increased  by  one  and 
a  new  office  coming  into  existence  on  the 
moment  that  his  retirement  becomes  legally 
effective.  The  number  of  officers  in  any  given 
grade  in  the  Navy  is  not  limited  by  law  but 
only  the  number  of  such  officers  who  may  be 
on  the  active  list  is  so  limited,  the  remainder 
being  on  the  retired  list.  (File  28687-22:3, 
Jan.  9,  1919.) 

' '  The  general  rule  undoubtedly  is  that  the 
status  of  retired  officers  who  are  withdrawn 
from  command  and  the  line  of  promotion  rests 
fundamentally  on  the  office  and  rank  held  at 
the  date  of  retirement  *  *  *.  The  Presi- 
dent may  be  authorized  to  appoint  on  the 
retired  list  one  not  in  the  service,  and  in  such 
case  there  would  seem  to  be  an  office  and  an 
exercise  of  the  appointing  power,  because  it 
would  not  constitute  a  transfer  to  the  retired 
list  from  the  active  list."  (25  Op.  Atty.  Gen., 
312,  315.) 

For  other  cases  see  below.  "Retired  officers 
may  be  included  in  general  legislation. " 

Signatures  of  i-e tired  officers  shouldhave 
word  "retired"  appended. — The  word  "re- 
tired" may  appropriately  and  should  be 
appended  to  the  signatiu^es  of  officers  on  the 
retired  list.     (File  3575-03.) 

Persons  appointed  to  retired  list  from 
civil  life  must  take  oath  of  office. — A  formor 
Army  officer  appointed  from  civil  life  to  the 
position  of  major  of  engineers,  and  thr-ro- 
upon  placed  on  the  retired  list  of  the  Army  as 
of  that  grade,  must  take  the  oath  of  office  re- 
quired by  section  1756,  Revised  Statutes.  (19 
Op.  Atty.  Gon,,  2S3.) 

General  legislation  not  apphcable  to 
retired  officers. — While  retired  officers  are 
in  the  Navy,  yet  they  are  not  serving  as  such. 


633 


Sec.  1457. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


Tlioy  arc  a  distinct  class,  and  when  Coni^'tcs.-! 
lerislales  in  reference  to  them  they  are  usually 
referred  to  aa  retired  ollicers  or  oificers  on  the 
retired  list .  ILhl,  therefore,  that  section  15S8, 
Revised  Statutes,  lixing  the  pay  of  Navy 
chaplains  on  the  retired  list,  and  the  act  of 
August  5,  1882  (22  Stat.,  28G),  which  proliibits 
any  increase  of  pay  for  retired  officer.-^,  are  not 
affected  by  the  act  of  Juno  29,  190G  jli.xing  new 
rates  of  pay  for  Navy  chaplain.-^],  in  so  far  as 
concerns  the  pay  of  Navy  chaplains  who  were 
on  the  retired  list  when  the  act  of  1906  went 
into  effect.     (13  Comp.  Dec,  116.) 

The  act  of  March  3,  1899,  section  1  (30  Stat., 
1004),  providing  that  "the  officers  constituting 
the  Engineer  Corps  of  the  Navy  be,  and  are 
hereby,  transferred  to  the  line  of  the  Navy,  and 
shall  be  commissioned  accordingly,"  did  not 
transfer  to  the  line  of  the  Navy  officers  of  the 
Engineer  Corps  who  were  on  the  retii'ed  list  at 
the  time  of  the  passage  of  said  act.  Accord- 
ingly, where  such  officers  subsequently  became 
entitled  to  advancement  to  the  rank  of  the  next 
higher  grade  for  civilrwar  service,  such  advance- 
ment was  properly  made  to  the  grades  of  the 
old  Engineer  Corps.  (13Comp.  Dec.,630;  com- 
pare 4  Comp.  Dec,  628,  noted  below.) 

An  officer  who  haa  the  rank  of  commander 
conferred  upon  him  for  the  purpose  of  retire- 
ment does  not  "attain"  that  rank  within  the 
meaning  of  section  5  of  the  Navy  personnel  act, 
March  3,  1899  (30  Stat.,  1004),  which  provides 
"that  engineer  officers  transferred  to  the  line  to 
perform  engineer  duty  only  who  rank  as,  or  above, 
commander,  or  who  subsequently  attain  such 
rank,  shall  perform  shore  duty  only."  This  sec- 
tion had  in  contemplation  officers  who  subse- 
quently attained  the  rank  of  commander  on  the 
active  list;  in  order  to  attain  the  rank  of  com- 
manderin  the  line  of  the  Navy  on  the  active  list 
it  is  necessary  for  the  officer  to  be  appointed  to 
the  office  of  commander.  The  rank  goes  with 
the  office.     (12  Comp.  Dec,  18.5.) 

Section  13  of  the  Navy  personnel  act  of  March 
3,  1899  (30  Stat.,  1007),  providing  that  com- 
missioned officers  of  the  Navy  shall  receive  the 
same  pay  and  allowances  as  provided  by  law  for 
the  officers  of  corresponding  rank  in  the  Army, 
did  not  affect  the  provision  m  the  act  of  June  7, 
1900,  concerning  pay  of  retired  officers  of  the 
Navy  ordered  to  active  duty.  (13  Comp.  Dec, 
83.) 

The  act  of  June  22,  1874  (noted  under  sec. 
1-561,  R.  S.),  which  provided  that  "any  officer 
of  the  Navy  who  may  be  promoted  in  course  to 
fill  a  vacancy  in  the  next  higher  grade  shall  be 
entitled  to  the  pay  of  the  grade  to  which  pro- 
moted from  the  date  he  takes  rank  therein,  if  it 
be  subsequent  to  the  vacancy  he  is  appointed 
to  fill,"  was  manifestly  designed  to  fix  the  com- 
mencement of  the  increased  pay  of  promoted 
officersin  active  service  only,  and  did  not  apply 
to  the  promotion  of  officers  on  the  retired  list  un- 
der section  1460,  Revised  Statutes,  aa  amended 
by  act  of  August  16,  1876  (19  Stat.,  204).  (17 
Op.  Atty.  Gen.,497.) 

The  provision  in  the  Army  act  of  June  12, 
1906,  "that  hereafter  fuel  may  be  furnished  to 
commissioned  officers  on  the  active  list,"  did 
not  repeal  the  provision  in  the  act  of  April  23, 
1904,  to  the  effect  that  retired  officers  while 
assigned  to  active  duty  should  receive  "the  full 


pay  and  allowances  of  their  respective  grades," 
nor  exclude  a  retired  officer  of  the  Marine 
Corps  from  the  receipt  of  a  fuel  allowance  while 
employed  on  active  duty.  (13  Comp.  Dec, 
168. 

The  provisions  of  section  8  of  the  act  of  June 
18, 1878,  chapter  263,  giving  to  Army  officers  the 
privilege  of  purchasing  fuel  at  the  rate  of  $3  per 
cord  for  standard  oak  wood,  do  not  extend  to 
retired  officers  of  the  Army.  (16  Op.  Atty. 
Gen.,  92.) 

An  officer  of  the  Navy  was  retired  as  a  mid- 
shipman ;  by  actof  March  3, 1883  (22 Stat., 472), 
the  title  of  the  grade  of  midshipman  was 
changed  to  that  of  ensign,  constituting  a  junior 
grade;  by  act  of  June  26,  1884  (23  Stat.,  60,  sec. 
2),  the  grade  of  junior  ensign  waa  abolished  and 
it:  was  provided  that  the  junior  ensigns  then  on 
the  list  should  be  commissioned  as  ensigns  in 
the  Navy.  The  latter  act  operated  to  promote 
officers  who  had  been  retired  in  the  grade  of 
midshipman  or  of  ensign  (junior  grade)  to  en- 
sign, but  did  not  have  the  effect  of  giving  them  a 
corresponding  increase  of  pay,  that  being  still 
governed  by  section  1591,  Revised  Statutes, 
and  the  act  of  August  5,  1882  (sec.  4,  22  Stat., 
284),  forbidding  such  increase  of  pay.  (4  Comp. 
Dec,  628.) 

Retired  oflficers  may  be  included  in 
general  legislation. — The  art  of  May  22, 
1917,  sec  7  (40  Stat.,  86)  provided  "That upon 
the  termination  of  temporary  appointments 
in  a  higher  grade  or  rank  as  authorized  by  this 
act  the  officers  so  advanced,  *  *  *  shall 
revert  to  the  grade,  rank,  or  rating  from  which 
temporarily  advanced  *  *  *."  The  lan- 
guage of  this  act  is  general,  making  no  specific 
reference  to  retired  officers,  and  there  are 
authorities  both  ways  upon  the  question 
whether  such  general  legislation  includes  the 
retired  list.  However,  it  sufficiently  appears 
that  general  legislation  relating  to  officers  of  the 
Navy  may,  upon  the  highest  authority,  be  held 
to  include  officers  on  the  retired  list.  As  there 
is  nothing  in  the  act  of  May  22,  1917,  which 
requires  that  retired  officers  be  excluded  from  - 
its  provision  with  reference  to  "officers" 
reverting  to  the  grades  or  ranks  from  which 
temporarily  advanced,  it  is  concluded  that 
they  may  so  revert  to  their  former  places  on  the 
retired  list  if  temporarily  appointed  to  higher 
grades  or  ranks  during  the  present  war,  as 
authorized  in  said  act.  (File  27231-103,  July 
17,  1917.) 

In  Badeau  v.  U.  S.  (130  U.  S.,  439,  449),  it 
was  held  that  retired  officers  were  included  in 
the  terms  of  the  act  of  March  30,  18(i8  (15  Stat., 
56, 58,  sec.  2)  now  embodied  in  sections  1223  and 
1440,  Revised  Statutes,  which  provided :  "  That 
any  officer  of  the  Army  or  Navy  of  the  United 
States  who  shall,  after  the  passage  of  thisact,  ac- 
cept or  hold  any  appointment  in  the  diplomatic 
or  consular  service  of  the  Government,  shall  be 
considered  as  having  resigned  his  said  office, 
and  the  place  held  by  him  in  the  military  or 
naval  service  shall  be  deemed  and  taken  to  be 
vacant,  and  shall  be  filled  in  the  same  manner 
as  if  the  said  officer  had  resigned  the  same. 
(File  27231-103,  July  17,  1917.) 

Inasmuch  as  the  Government  is  to  be  reim- 
bursed for  stores  dispensed  under  the  act  of 
May  13,  1908  ("Provisions,  Navy")  no  reason 


634 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1457. 


exists  for  giving  this  law  other  than  a  liberal 
construction,  and  it  should  therefore  be  held  to 
apply  to  retired  officers,  who  are  "officers 
*  *  *  of  the  Navy  and  Marine  Corps."  The 
Attorney  General's  opinion  to  the  Secretary  of 
War  (16  Op.  Atty.  Gen.,  92)  holding  that  a 
statute  authorizing  the  sale  of  fuel  to  officers 
below  cost  did  not  apply  to  retired  officers,  was 
based  upon  the  wording  of  the  law  and  certain 
conditions  indicating  that  such  was  the  inten- 
tion of  Congress.     (File  26815,  Oct.  2,  1908.) 

For  other  cases,  see  above,  "  Status  of  retired 
officers;  part  of  the  Navy.'' 

Power  of  Congress  to  remove  oflB.cers 
from  retired  list. — The  first  section  of  the 
act  of  December  21,  1861  (12  Stat.,  329),  re- 
tired from  service  two  classes  of  naval  officers, 
firstly,  those  whose  names  may  have  been 
borne  on  the  naval  register  45  years,  and  sec- 
ondly, those  who  had  arrived  at  the  age  of  62 
years.  The  act  of  June  25,  1864,  provided  that 
the  act  of  1861  "shall  not  be  so  construed  as  to 
retire  any  officer  under  the  age  of  sixty-two 
years,  and  whose  name  shall  not  have  been 
borne  upon  the  Navy  Register  for  a  period  of 
forty-five  years  after  he  had  arrived  at  the  age 
of  sixteen  years"  (13  Stat.,  183).  The  latter 
act  had  the  effect  of  removing  from  the  retired 
list  officers  of  the  Navy  who  were  retired  in 
pursuance  of  the  act  of  December  21, 1861,  but 
who  were  not  liable  to  be  retired  by  the  pro- 
vision of  the  act  of  1864.  (11  Op.  Atty.  Gen., 
144.) 

It  may  be  questioned  whether  the  Congress 
could,  without  abolishing  the  office,  constitu- 
tionally remove  an  officer  from  an  office  into 
which  he  had  been  legally  inducted.  (Thomp- 
son t>.  U.  S.,  18  Ct.  Cls.,  604,  612.) 

Retired  pay  not  "pension." — The  retired 
list  of  the  Army  is  regulated  by  positive  law, 
being  a  form  of  compensation  adopted  by  the 
Government.  (McBlair  v.  U.  S.,  19  Ct.  Cls., 
528.) 

The  retu'ed  pay  of  an  inmate  of  a  naval  hos- 
pital is  not  a  ''pension."  The  difference  in 
the  meaning  of  the  terms  "retired  pay"  and 
"pension"  is  so  clearly  recognized  in  the  laws 
that  one  can  hardly  be  confused  with  the 
other.     (12  Comp.  Dec,  407.) 

Upon  question  whether  retired  pay  is  com- 
pensation or  pension,  see  file  5362-35,  June  29, 
1911;  see  also  cases  noted  above,  under  "Status 
of  retired  officers;  part  of  the  Navy." 

Distinction  between  "rank"  and 
"grade."  See  note  to  sections  421  and  1362, 
Revised  Statutes. 

The  word  "grade"  as  used  in  this  section 
means  "rank,"  and  entitles  an  officer  retired 
while  serving  as  chief  of  bureau  or  Judge  Advo- 
cate General  in  the  Navy  Department  to  the 
rank  held  by  him  while  so  serving.  (31  Op. 
Atty.  Gen.,  505,  509,  516,  518.) 

This  section  shows  that  the  names  of  officers 
find  their  place  upon  the  retired  list  only  ac- 
cording to  gi'ade  at  the  time  of  retirement.  The 
terms  "rank"  and  "grade"  are  not  synonjons. 
(Moser  v.^  Meyer,  38  App.  D.  C,  13,  19.) 

The  distinction  between  rank  and  grade  in 
both  the  Ai'my  and  Navy  is  so  long  and  so  well 
understood  that  we  cannot  suppose  Congress 
ignorant  or  immindful  of  it.  On  the  contrary, 
in  the  absence  of  anything  to  indicate  a  dif- 


ferent meaning,  we  must  take  it  that  Congress 
used  those  words  in  their  well  known  and  ap- 
propriate sense.  It  is  significant  that  section 
1457  provides  that  officers  shall  be  placed  on 
the  retired  list  of  officers  of  the  grade  to  which 
they  belonged,  etc.,  and  section  1487  that 
officers  shall  "have  the  rank  of  commodore." 
In  the  Navy  personnel  act  of  March  3,  1899, 
section  9  (30  Stat.,  1004),  officers  shall  be  re- 
tired with  the  rank  of  the  next  higher  gi'ade, 
and  in  section  11,  the  language  is  the  same. 
In  the  act  of  June  29,  1906  (34  Stat.,  554),  the 
language  is,  with  the  rank  of  one  grade  above 
that  actually  held  at  the  time  of  retirement.  It 
is  quite  safe  to  say  that  in  these  carefully  pre- 
pared enactments,  when  Congress  said  "grade" 
it  meant  "grade,"  and  that  when  it  said 
"rank"  it  did  not  mean  grade.  (26  Op.  Atty. 
Gen.,  57.) 

Section  1457  retired  officers  generally  in  their 
then  grade  and  rank,  while  by  section  1481  the 
staff  officers  there  referred  to  were  retired  with 
the  rank  of  the  next  higher  grade,  thus  making 
a  distinction  in  favor  of  the  latter  class.  (26 
Op.  Atty.  Gen.,  57.) 

Staff  officers  retired  with  the  rank  of  a  higher 
grade  are  not  entitled  to  bear  the  title  of  that 
rank.  They  retain  the  grade  and  title  actually 
held  by  them  on  retirement.  A  retired  staff 
officer  retired  with  the  rank  of  commodore  is 
not  above  the  grade  of  captain.  (26  Op.  Atty. 
Gen.,  57.) 

Staff  officers  having  the  rank  of  captain  on 
the  active  list,  but  retired  \^'ith  the  rank  of  com- 
modore imder  section  1481,  Revised  Statutes, 
are  not  thereby  advanced  to  the  grade  of  com- 
modore. Accordingly,  the  act  of  June  29,  1906 
(34  Stat.,  554),  providing  for  advancement  in 
rank  of  officers  on  the  retired  list  of  the  Navy 
who  served  during  the  civil  war,  and  exclud- 
ing from  its  benefits  officers  who  received  an 
advance  in  grade  at  or  since  retirement,  did 
not  debar  a  staff  officer  who  was  retired  with 
the  rank  of  commodore  under  section  1481. 
An  officer  so  retired  received  an  advance  in 
rank,  but  not  an  advance  in  grade.  (26  Op. 
Atty.  Gen.,  57.) 

A  staff  officer  retired  with  the  rank  of  rear 
admiral  under  section  11  of  the  Na\'y  personnel 
act  of  March  3,  1899  (30  Stat.,  1007),  would  not 
enter  the  grade  of  rear  admiral.  If  recalled  to 
active  duty  under  section  1462,  Revised  Stat- 
utes, he  would  reenter  the  service  with  the 
rank  and  pay  of  the  next  higher  grade;  that  is 
to  say,  a  medical  director  who  has  been  retired 
with  the  rank  of  rear  admiral  if  recalled  to  the 
service  would  enter  with  the  rank  and  pay  of 
a  rear  admiral,  but  he  woidd  enter  only  from 
the  medical  corps  and  as  a  medical  director. 
(22  Op.  Atty.  Gen.,  436.) 

The  grade  which  a  professor  of  mathematics 
had  at  the  time  of  his  retirement  was  that  of 
professor  of  mathematics  and  not  that  of  cap- 
tain, which  was  his  rank.  (13  Comp.  Dec, 
241.) 

In  the  Navy  there  are  grades  for  duty,  for 
honor,  and  for  pay.  Some  of  them  are  made 
grades  by  name,  others  by  description. 
(McCliu-e  V.  U.  S.,  18  Ct.Cls.,  348.) 

The  next  higher  grade  to  captain,  under 
section  11  of  the  Na\7-  personnel  act  of  March 
3,  1899  (30  Stat.,  1007),  is  rear  admiral  of  the 


54641°— 22- 


-41 


635 


Sec.  1457. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


lower  half.  Congreps  has  croatod  for  purposes 
of  pay  a  diflerciice  in  the  rank  or  grade  of  rear 
admiral.  Taking  one  step  upward  for  the  pur- 
pose of  pay,  he  pa^spes  into  and  not  over  the 
next  ]>ay  grade,  which  is  that  of  the  nine  lower 
numliers.  (Gibson  v  V.  S.,  194  U.  S.,  182; 
Ix)we  V.  U.  S.,  38  Ct.  Cls..  170;  see  also  Terry  v. 
U.  S.,  39  Ct.  Cls.,  353,  and  note  to  sec.  1362, 
R.  S.V 

The  grade  of  an  officer  in  the  'is&\y  is  his  of- 
ficial station,  1)y  which  are  regulated  his  powers, 
duties,  and  ]niy.  His  pay  may  be  further 
governed  V>y  his  time  of  service  within  a  grade, 
either  in  fact  rendered  within  the  grade  or 
constructively  performed  therein  through  the 
force  of  statutes.  The  office  of  professor  of 
mathematics  is  a  gi-ade.  (Roget  v.  V.  S.,  148 
U.  y.,  1()7.  Pay  is  now  regulated  by  "rank" 
instead  of  grade.  See  act  of  ^lay  13,  1908  (35 
Stat.,  127),  pro\'iding  that  "hereafter  all  com- 
missioned officers  of  the  active  list  of  the  Navy 
shall  receive  the  same  pay  and  allowances 
according  to  rank  and  length  of  service,"  and 
(35  Stat.,  128)  that  "the  pay  of  all  commis- 
sioned, warrant,  and  appointed  officers  and 
enlisted  men  of  the  Na^y  now  on  the  retired 
list  shall  be  based  on  the  pay,  as  herein  pro- 
vided for,  of  commissioned,  warrant,  and  ap- 
pointed officers  and  enlisted  men  of  corre- 
sponding rank  and  service  on  the  active  list.") 

A  captain  in  the  line  is  merely  a  captain, 
and  has  but  one  title  to  designate  both  his  of- 
fice and  his  rank.  An  officer  of  the  staff  has 
an  oflicial  title  to  identify  his  position  in  his 
corps,  and  also  a  relative  rank  in  addition,  the 
latter  being  arbitrarily  fixed  by  Congi-ess  to 
designate  his  relative  rank  in  the  ser\'ice  in 
accordance  with  the  line  standard.  (22  Op. 
Atty.  Gen.,  433;  "relative"  rank  has  now  been 
abolished  and  actual  rank  sulistituted  in  the 
staff  corps.  See  act  Mar.  3,  1899.  sec.  7,  30 
Stat.,  1005.) 

In  the  engineer  corps  of  the  Naw  there  were 
the  grades  of  chief  engineer,  passed  assistant 
engineer,  and  assistant  engineer.  In  the  first 
of  these  there  were  four  ranks — captain,  com- 
mander, lieutenant  commander,  and  lieuten- 
ant; and  in  the  second  there  were  two  ranks — 
lieutenant  and  lieutenant  (junior  grade). 
Certain  passed  assistant  engineers  with  the 
rank  of  lieutenant  were,  on  account  of  civil- 
war  service,  entitled  to  be  retired  with  the 
rank  of  the  next  higher  grade,  viz,  chief 
engineer.  There  being  four  ranks  in  the  higher 
grade,  held,  that  the  rank  to  which  the  officers 
concerned  were  entitled,  on  account  of  civil- 
war  service,  was  the  rank  next  above  that 
which  they  held  in  the  lower  grade,  and  that 
the  provisions  of  sections  1485  and  1486,  Revdsed 
Statutes,  relating  to  precedence  of  staff  officers, 
did  not  operate  to  entitle  them  to  a  higher 
rank.  (26  Op.  Atty.  Gen.,  496.  See  also  note 
to  sec.  1390,  R.  S.) 

The  retirement  of  an  officer  with  a  higher 
rank  than  that  held  by  him  on  the  active  list, 
pursuant  to  an  act  of  Congress  authorizing  it, 
does  not  confer  upon  him  a  new  office.  He 
retains  his  former  office,  to  which  he  had  been 
duly  appointed,  and  acquires  only  new  and 
higher  rank  by  the  act  of  Congress  authorizing 
his  retirement.  The  rank  which  is  conferred 
upon  bim  by  act  of  Congress  upon  his  retire- 


ment is  in  no  sense  a  constitutional  api)oint- 
ment  to  a  new  office.  (Wood  r.  U.  S..  15  Ct. 
Cls.,  151;  affirmed  107  U.  S.,  414.) 

Congress  may  tran.«fer  an  officer  from  the 
active  to  the  retired  list,  and  may  change  his 
rank  and  i)ay  on  the  active  or  retu-ed  list  at 
any  time,  without  coming  in  conflict  with  the 
Constitution.  (Wood  v.  U.  S.,  15  Ct.  Cls.,  151; 
affirmed  107  U.  S.,  414.) 

An  officer  on  the  active  list  may  be  retired 
with  a  different  rank  from  that  which  belongs 
to  his  office,  when  Congress  so  proxades,  without 
a  new  appointment,  as  he  continues  to  hold 
the  same  office,  but  is  transferred  to  the  retired 
list  with  a  different  rank.  (Wood  v.  U.  S., 
15  Ct.  Cls.,  151;  affirmed  107  U.  S.,  414.) 

The  effect  of  advancement  of  an  officer  on 
the  retired  list  on  account  of  civil-war  service, 
in  accordance  ■nath  the  act  of  June  29,  1906 
(34  Stat.,  554),  is  not  to  place  him  in  a  different 
grade,  but  to  give  him  the  rank  and  retii-ed  pay 
belonging  to  that  grade.  (26  Op.  Atty.  Gen., 
433;  26  Op.  Atty.  Gen.,  615.) 

A  lieutenant  in  the  Navy  retired  with  the 
rank  of  lieutenant  commander  under  section  9 
of  the  Navy  personnel  act  of  March  3,  1899  (30 
Stat.,  1006),  continued  to  hold  the  office  of 
lieutenant  subsequent  to  his  retii'ement.  (14 
Comp.  Dec,  471.) 

An  officer  projjerly  appointed  to  any  grade 
on  the  active  List  may  be  retii-ed  with  a  rank 
higher  or  lower  than  that  which  belongs  to  his 
office,  if  Congress  see  fit  so  to  enact;  but  Con- 
gress can  not  appoint  to  a  new  and  different 
office  without  coming  in  conflict  with  the 
Constitution.    (Moser  v.  U.  S.,  42  Ct.  Cls.,  86.) 

Officers  of  the  Navy  advanced  in  rank  on  the 
retired  list,  even  where  such  advancement  is 
by  law  made  subject  to  the  advice  and  consent 
of  the  Senate,  are  not  entitled  to  commissions 
in  such  advanced  rank,  as  no  exercise  of  the 
appointing  power  is  involved,  the  effect  thereof 
being  merely  a  change  of  rank  and  not  pro- 
motion to  a  new  and  higher  office.  (File  26509- 
33,  Mar.  24,  1910,  citing  Wood  v.  U.  S.,  15 
Ct.  Cls.,  151, 107  U.  S.,  414;  25  Op.  Atty.  Gen., 
185;  25  Op.  Atty.  Gen.,  312,  317;  26  Op.  Atty. 
Gen.,  433;  26  Op.  Atty.  Gen.,  487;  26  Op. 
Atty.  Gen.,  615;  file  26254-89,  Aug.  11, 
1908;  see  also  Cloud  v.  U.  S.,  43  Ct.  Cls.,  69; 
War  Dept.,  Gen.  Order  No.  191,  Dec.  21,  1904. 
But  see  act  Mar.  4,  1911,  36  Stat.,  1354,  pro- 
viding that  "commissioned  officers  of  the 
Army,  Nav^,  and  Marine  Corps  on  the  retired 
list  whose  rank  has  been  or  shall  hereafter  be 
advanced  by  operation  of  or  in  accordance 
with  law  shall  be  entitled  to  and  shall  receive 
commissions  in  accordance  with  such  advanced 
rank.") 

Rank  as  well  as  pay  of  retired  officers  is 
entirely  within  the  control  of  Congress;  and  a 
new  commission  is  not  necessary  where  an 
officer  is  entitled  to  be  retii-ed  with  the  rank  to 
which  his  seniority  entitled  him  to  be  pro- 
moted. (Cloud  V.  IT.  S.,  43  Ct.  Cls.,  69;  but 
see  act  Mar.  4,  1911,  36  Stat.,  1354,  quoted  in 
preceding  paragraph.) 

The  President  may  send  to  the  Senate  for 
approval  of  his  action  the  names  of  officers  on 
the  retired  list  of  the  Army  nominated  by  him 
for  advancement  under  the  act  of  April  23, 
1904  (33  Stat.,  264 j,  after  the  adjoui-nment  of 


636 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1457. 


the  last  session  of  Congress,  but  who  died  before 
the  convening  of  the  present  session;  and  ujwn 
approval  by  the  Senate,  the  personal  represen- 
tatives of  the  deceased  officers  will  be  entitled 
to  receive  the  advanced  pay  due  such  officers, 
without  further  action  by  Congi-ess.  WTiere, 
however,  a  person  is  appointed  to  office,  either 
during  a  session  or  in  a  recess  of  the  Senate,  and 
dies  before  confirmation,  his  personal  repre- 
sentatiA'es  must  be  remitted  to  Congress  for  the 
payment  of  salary  earned  by  such  officer.  (25 
Op.  Atty.  Gen.,  312.  See  also  23  Op.  Atty. 
Gen.,  413,  concerning  nunc  pro  tunc  advance- 
ment of  officers  no  longer  in  the  naval  service.) 

A  retired  officer  of  the  Army  who  was  placed 
on  the  retired  list  by  the  President,  under  the 
provisions  of  the  act  of  April  23,  1904,  with  the 
rank  and  retired  pay  of  the  next  higher  grade, 
became  entitled  to  the  pay  of  the  higher  grade 
from  the  date  he  was  appointed  and  confirmed 
to  take  the  higher  rank;  and  w^here  the  officer 
died  after  his  advancement  by  the  President 
but  prior  to  the  concurrence  of  the  Senate,  his 
heirs  are  entitled  to  the  increased  pay  due  him 
at  the  time  of  his  death.  (11  Comp.  Dec,  693, 
following,  25  Op.  Atty.  Gen.,  312,  and  citing 
25  Op.  Atty.  Gen.,  185  and  299.) 

A\^ere,  under  the  pro\dsions  of  the  act  of 
April  23,  1904,  a  retired  officer  of  the  Army  ia 
placed  on  the  retired  list  with  the  rank  and 
retired  pay  of  the  next  higher  grade,  such  in- 
creased pay  attaches  to  said  office  from  the  date 
he  was  actually  placed  on  the  retired  list,  and 
neither  requires  an  acceptance  by  the  officer 
nor  permits  of  a  declination  by  him.  This  was 
not  an  appointment  to  a  different  office.  The 
rank  and  pay  of  officers  of  the  Army  are  subject 
to  the  control  of  Congress  and  such  action  cloea 
not  require  a  new  appointment  by  the  Pres- 
ident. This  is  merely  a  change  of  rank  and 
pay.  "Wlien  an  officer  is  so  placed  on  the  retired 
list,  the  act  of  the  President  is  complete  and 
irrevocable.     (11  Comp.  Dec,  448.) 

An  officer  of  the  Navy  was  retired  as  a  mid- 
shipman; by  act  of  March  3,  1883  (22  Stat.,  472), 
the  title  of  the  grade  of  midshipman  was 
changed  to  that  of  ensign,  constituting  a  junior 
grade,  but  without  changing  the  rate  of  pay; 
by  act  of  June  26,  1884  (23  Stat.,  60,  sec.  2), 
the  grade  of  junior  ensign  was  abolished,  and 
it  was  provided  that  the  junior  ensigns  then  on 
the  list  should  be  commissioned  as  ensigns  in 
the  Navy.  Held,  that  the  act  last  cited  op- 
erated to  promote  officers  who  had  been  retired 
in  the  grade  of  midshipman  or  of  ensign  (junior 
grade),  to  ensigns.     (4  Comp.  Dec,  628.) 

The  advancement  in  rank  of  an  officer  on  the 
retired  list  as  a  reward  for  civil-war  service  does 
not  create  or  constitute  an  office  and  is  not 
accomplished  by  an  exercise  of  the  appointing 
power.  In  this  case  there  is  rank  and  pay 
without  the  corresponding  office.  (25  Op. 
Atty.  Gen.,  312;  25  Op.  Atty.  Gen.,  185.) 

Under  a  special  act  of  Congress  providing  for 
the  advancement  on  the  retired  list  from  a  prior 
'!"+"  -'to  the  next  higher  grade"   of  a  chief 


date 


engmeer  with  the  rank  of  captain,  held,  that 
since  he  already  occupied  the  highest  grade  and 
rank  as  a  chief  engineer  officer, '^it  was  not  pos- 
sible to  give  him  a  higher  grade  in  that  corps, 
and  in  order  to  give  any  effect  to  the  act  it  must 
be  construed  as  authorizing  an  advancement  of 


one  grade  in  rank  above  that  which  he  already 
occupied;  accordingly,  that  this  officer  be- 
came entitled  to  the  rank  of  rear-admiral  from 
the  date  stated  in  the  act,  and  to  the  pay  of  a 
rear-admiral  of  the  lower  half  from  that  dale. 
(9  Comp.  Dec,  515;  see  also  22  Op.  Atty.  Gen., 
433.) 

Under  the  acts  of  March  3,  1899,  section  11 
(30  Stat.,  1007),  and  June  29,  1906  (34  Stat., 
554),  authorizing  the  advancement  under  cer- 
tain conditions  of  any  retii-ed  officer  who  served 
during  the  civil  war'to  "the  rank  *  *  *  of 
one  grade  above  that  actually  held  by  him  at 
the  time  of  retirement,"  the  officers  affected 
should  receive  an  increase  in  rank ;  accordingly, 
where  there  exists  more  than  one  rank  in  the 
next  higher  grade,  although  the  language  is  sus- 
ceptible of  the  meaning  that  the  officer  shall  be 
given  some  one  of  the  ranks  in  said  grade  and 
might  be  literally  complied  with,  by  giving  him 
any  rank  of  the  higher  grade  although  it  might 
be  no  higher  than  that  already  held,  the  provi- 
sion manifestly  intended  an"  advancement  in 
rank  and  must  be  construed  to  reriuire  that  the 
officer  be  retired  with  a  rank  higher  than  that 
already  held.     (26  Op.  Atty.  Gen.,  487.) 

Under  the  pro\'isions  of  the  act  of  June  29, 
1906,  providing  for  the  advancement  of  officers 
of  the  Navy  not  above  the  grade  of  captain,  for 
civil-war  service,  an  officer  of  a  staff  corps  in 
the  highest  grade  of  his  corps  is  entitled  to  the 
pay  of  the  next  higher  grade  in  the  line  of  the 
Navy.     (13  Comp.^Dec,  617.) 

[Congress  fi-equently  does  not  observe  the  dis- 
tinction between  "rank"  and  "grade"  in  legis- 
lating for  the  Navy.  Thus,  in  the  case  of 
chaplains,  Congress  by  act  of  June  29,  1906 
(34  Stat.,  554 ),  as  amended  by  act  of  June  30, 
1914  (38  Stat.,  404),  provided  for  their  promo- 
tion to  the  "grades"  of  lieutenant,  lieutenant- 
commander,  commander,  and  captain.  In  the 
case  of  II.  n.  Rousseau,  who  occupied  the  grade 
of  ci\il  engineer  in  the  Navy  with  the  rank  of 
commander,  Congress,  by  act  of  ]\Iarch  4,  1915 
(38  Stat.,  1191),  proA'ided  for  his  advancement 
from  "commander"  to  the  "grade"  of  rear- 
admii-al  of  the  lower  nine.  In  the  case  of  Guy 
K.  Calhoun,  Congress,  bj^  act  of  ]\ray  6, 1910  (36 
Stat.,  352),  provided  for  his  appointment  as  a 
professor  of  mathematics,  and  his  subsequent 
promotion  to  the  "grade"  of  lieutenant  in  the 
corps  of  professors  of  mathematics.  By  section 
423,  ReAdsed  Statutes,  Congress  provided  that 
the  chief  of  the  Bureau  of  Construction  and 
Repair  should  be  an  officer  not  below  the 
"grade"  of  commander  and  a  "skillful  naval 
constructor."  Numerous  other  instances  exist 
in  the  statutes  in  which  "grade"  is  used  in  the 
sense  of  "rank."  "The  interchangeability  of 
the  words  rank  and  grade  throughout  the  stat- 
utes leads  me  to  the  conclusion  that  they  are 
used  synonymously, — especially  when  we  find 
them,  as  in  section  1588,  connected  by  a  dis- 
junctive, and  with  no  indication  that  either 
shall  control."  (17  Op.  Attv.  Gen.,  154.)  See 
also  20  Comp.  Dec,  199,  "holding  that  the 
words  "grade"  and  "rank"  as  used  in  the  act 
of  March  4,  1913  (37  Stat.,  892),  relating  to 
pay  on  promotion,  are  interchangeable  and  the 
equivalent  of  "office,"  and  that  the  advance- 
ment contemplated  by  that  act  is  an  advance- 
ment in  office;  and  19  Op.  Atty.  Gen.,  171, 


637 


Sec.  145' 


Pi.  2.  REVISED  STATUTES. 


The  Navy. 


wlu'ic  use  of  word  "tirade"  in  section  1480,  Re- 
vised Statutes  was  held  to  be  obvious  error  of 
the  revisers;  and  see  notes  to  sections  421, 
422,  42;^  and  VM)2,  Revised  Statutes.  On  the 
other  hand  Congress  has  repeatedly  legishited 
withspecitic  reference  to  the  recognized  dis- 
tinction between  "rank"  and  "grade",  as,  for 
example,  in  the  act  of  May  22,  li)17,  section 
20  (,40  Stat.,  89),  providing  that  '-hereafter  all 
laws  relating  to  the  examination  of  otticers  of 
the  Navy  for  promotion  shall  be  construed  to 
ap]ilv  to  the  regular  advancement  of  staff 
oflicers  lo  higher  ranks  on  the  active  list  the 
same  as  though  such  advancements  in  rank 
were  promotions  to  higher  grades."] 

When  retirement  or  advancement  on 
retired  list  takes  effect. — See  note  to 
section  1144,  Revised  Statutes;  see  also  note 
to  section  1458,  Revised  Statutes,  "Antedating 
rank  on  promotion." 

The  retirement  of  an  officer  of  the  Navy,  on 
his  own  application  under  section  1443,  Re\'ised 
Statutes,  becomes  legally  effective  so  as  to 
create  a  vacancy  on  the  active  list  to  which  a 
promotion  may  be  made,  upon  the  President's 
approval  of  the  officer's  application  for  retire- 
ment. (32  Op.  Atty.  Gen.,  176;  this  is  con- 
trary to  the  decision  previously  made  by  the 
Navy  Department  in  the  same  case.  See  file 
28687-22:3,  Jan.  9,  1919.) 

The  law  does  not  recognize  fractional  parts  of 
a  day  in  the  matter  of  retirements,  promotions, 
aiul  appointments  in  the  Army.  Vacancies 
caused  by  the  retirement  of  officers  from  active 
service  do  not  begin  to  run  until  the  day  fol- 
lowing the  date  their  retirement  becomes 
legally  effective.     (16  Comp.  Dec,  682.)  _ 

An  officer  of  the  Army  who  is  retired  is  en- 
titled to  the  full  pay  of  the  active  list  until  he 
receives  notice  of  his  retirement,  unless  receipt 
of  such  notice  is  prevented  by  his  own  act  or 
default.  (Dig.  Comp.  Dec,  170;  12  Comp. 
Dec,  628;  file  26260-3237:1,  Aug.  25,  1915; 
Comp.  Dec,  Aug.  21,  1918.  Appeal  No. 
28230,  file  28687-22:3.) 

An  officer  of  the  Marine  Corps  was  found 
incapacitated  for  active  service,  resulting  from 
an  incident  of  the  service.  The  finding  was 
appro\ed  by  the  President  May  4,  1908.  On 
May  1 1 ,  1908,  the  following  order  was  issued  to 
him:  "The  President  of  the  United  States 
having  placed  you  on  the  retired  list  of  officers 
of  the  United  States  Marine  Corps  from  and  in- 
cluding May  4,  1908,  you  are  hereby  detached 
from  Headquarters,  United  States  Marine 
Corps,  will  proceed  to  your  home,  and  report 
your  arrival  and  address  to  this  office. ' '  Held, 
that  claimant  having  been  placed  on  the  re- 
tired list  by  order  of  the  President  on  May  4, 
1908,  is  not  thereafter  entitled  to  active-duty 
pay  and  allowances.  Having  been  paid  active- 
duty  pay  to  and  including  May  11,  1908,  the 
overpayment  of  difference  between  active- 
duty  and  retired  pay  from  May  5,  1908,  to  May 
11,  1908,  shoula  be  disallowed.  (17  Comp. 
Dec,  533.  But  see  contra  Dig.  Comp.  Dec, 
170,  12  Comp.  Dec,  628,  and  Comp.  Dec, 
Aug.  21,  1918,  noted  above.) 

While  in  the  case  of  an  officer  who  resigns  his 
commission  it  is  necessary  to  communicate  to 
him  the  acceptance  of  such  resignation,  yet  the 
same  conditions  do  not  exist  where  a  change 


of  stains  is  uivolvcd,  such  as  the  transfer  of  an 
officer  from  the  active  to  the  retired  list,  and 
the  fact  is  commuiiicalcd  to  the  officer  con- 
cerned only  to  inl'orm  him  that  he  hds  been 
retired  on  or  from  a  certain  date.  (File  26543- 
62:1  Aug.  2S,  1911.) 

Under  section  9  of  the  Navy  personnel  act 
of  March  3,  1899  (30  Stat.,  1004),  a  lieiitenant 
commander  (Alfred  A.  Pratt)  was  designated 
for  retirement  by  the  Board  for  Selection  for 
Retirement,  convened  on  June  1,  1911.  Said 
act  provided  that  the  findings  of  said  board 
should  be  transmitted  to  the  President,  "who 
shall  thereupon,  by  order,  make  the  transfers 
of  such  officers  to  the  retired  list  as  are  selected 
by  the  board."  On  July  3,  1911,  the  President 
approved  the  proceedings,  findings,  and  recom- 
mendation of  the  board  and  directed  that  the 
officers  selected,  including  Lieutenant  Com- 
mander Pratt,  "will  be  retired  from  active 
service  in  accordance  with  section  9  of  the  act 
approved  I\Iar<'h  3,  1899,  above  referred  to." 
Held  that  this  action  of  the  President  had  the 
effect  of  remo\'ing  Lieutenant  Commander 
Pratt  from  the  active  list,  although  not  com- 
municated to  htm,  and  accordingly  that  on  the 
date  of  his  death,  July  4,  1911,  he  was  no  longer 
on  the  acti^'e  list  but  was  an  officer  on  the  retired 
list,  and  therefore  the  provision  of  law  (act 
May  13,  1908,  35  Stat.,  128)  for  the  payment  of 
a  death  gratuity  to  beneficiaries  of  officers  who 
die  while  on  the  active  list  would  not  be 
applical>le  to  his  case.  It  would  seem,  upon 
authority  of  22  Op.  Atty.  Gen.,  657,  that  Lieu- 
tenant Commander  Pratt's  retirement  was 
effective  from  June  30,  1911,  as  section  9  of  the 
Navy  personnel  act  provided  that  "the  promo- 
tions to  fill  the  vacancies  thus  created  shall  date 
from  the  thirtieth  day  of  June  of  the  current 
year,"  but,  irrespective  of  this,  it  is  clear  that 
his  retirement  was  effective  prior  to  his  death, 
which  occm-red  after  the  President's  action. 
(File  26543-62:1,  Aug.  28,  1911. 

Retirements  made  under  sections  8  and  9  of 
the  Navy  personnel  act  of  March  3,  1899  (30 
Stat.,  1004),  were  legally  effective  on  the 
thirtieth  day  of  June  of  the  current  year,  al- 
though the  President's  order  approving  such 
retirements  may  have  been  dated  subsequent 
to  June  30,  and  the  Secretary  of  the  Navy  may 
have  notified  the  officers  concerned  that  they 
would  be  placed  on  the  retired  list  from  July 
12.  The  intention  of  Congress  was  plainly  ex- 
pressed in  these  two  sections  of  the  personnel 
act,  that  the  vacancies  provided  for  were  to 
occur  or  be  created  for  the  fiscal  year  ending 
Jtme  30.  If  there  were  any  doubt  about  this 
interpretation  of  the  law,  it  would  be  removed 
by  the  provision  in  section  9,  that  "the  promo- 
tions to  fill  vacancies  thus  created  shall  date 
from  the  thirtieth  day  of  June  of  the  current 
year."  Tliis  construction  is  not  only  warranted 
by  the  language  of  the  law,  but  it  conduces  to  a 
methodical  and  orderly  administration  of  these 
sections.  It  results  in  making  all  the  vacancies 
created  under  the  provisions  of  the  two  sectioiis 
take  effect  on  the  last  day  of  the  fiscal  year, 
and  the  promotions  made  to  fill  such  vacancies 
go  into  effect  on  the  day  immediately  following 
the  last  day  of  the  fiscal  year,  viz,  on  the  first 
day  of  July  of  the  current  year.  Accordingly, 
held  that  the  order  of  the  President,  though 
dated  on  July  1,  1899,  had  the  effect  to  retire 


638 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1457. 


Lieutenant  Commander  William  H.  Driggs  on 
June  30,  1899,  under  the  provisions  of  section  8 
of  the  Navy  personnel  act  of  March  3, 1899,  and 
thus  create  a  vacancy  for  and  within  the  fiscal 
year  ending  with  that  day,  and  that  the  promo- 
tion of  Lieutenant  Walter  McLean  to  fill  the 
vacancy  thus  created  should  date  from  said 
30th  day  of  June.  In  other  words,  his  promo- 
tion and  his  commission  in  pm-suance  thereof 
should  bear  date  as  of  July  1,  1899;  and  he  is 
entitled  to  the  grade  and  rank  indicated  in  his 
said  commission,  together  with  the  emoluments 
attached,  from  and  including  that  date.  (22 
Op.  Atty.  Gen.,  657.) 

By  special  act  of  Congress,  March  4,  1911 
(36  Stat.,  1346),  it  was  provided:  "That  the 
Presiclent  of  the  United  States  be,  and  he  is 
hereby,  authorized  to  place  Ci^'il  Engineer 
Robert  E.  Peary,  U.  S.  Navy,  on  the  retired 
list  of  the  Corps  of  Ci^dl  Engineers  with  the 
rank  of  rear  admiral,  to  date  from  April  sixth, 
nineteen  hunched  and  nine,  with  the  highest 
retired  pay  of  that  grade  under  existing  law 
*  *  *."  Pm-suant  to  this  act  the  President 
commissioned  Peary  on  March  13,  1911,  as  a 
civil  engineer  in  the  Navy',  with  the  rank  of 
rear  admiral  on  the  retired  list  from  April  6, 
1909,  and  it  was  held  by  the  Comptroller  of 
the  Treasury,  in  a  decision  dated  Jime  5,  1911 
(17  Comp.  Dec,  919),  that  he  should  be  given 
the  retired  pay  of  a  rear  admiral  under  the  act 
in  his  case  from  April  6,  1909,  the  date  speci- 
fied therein.  As  to  the  date  of  the  vacancy 
in  the  Corps  of  Civil  Engineers  created  by 
Peary'g  retirement,  held  that  Mr.  Peary  was, 
in  law  and  in  fact,  a  civil  engineer  on  the  active 
list  of  the  Na\y  until  March  13,  1911;  that  Con- 
gress did  not  by  the  above  act  effect  any 
change  in  the  status  of  Mr.  Peary  prior  to  its 
enactment;  that  Congress  undoubtedly  had  the 
authority  to  pro\-ide  that  Peary  should  be 
treated  as  a  retired  officer  ■n'ith  the  rank  of  rear 
admiral  during  the  period  from  April  6, 1909,  to 
March  13,  1911,  but  it  could  not,  by  legislative 
enactment,  change  thef  act  asit  actually  existed, 
that  during  aU  of  said  period  he  was  a  ci^^.l 
engineer  on  the  active  list  of  the  Navy  (citing 
Potts  V.  U.  S.,  125  U.  S.,  173;  Burchard  v.  U.  S., 
125  U.  S.,  176;  27  Op.  Atty.  Gen.,  222;  and 
file  26256-lOa,  Jan.  25,  1909);  and  accord- 
ingly that  the  officers  promoted  because  of  the 
retirement  of  Civil  Engineer  Peary  should  be 
given  the  date  of  the  vacancies  caused  by  the 
actual  retirement  of  that  officer  and  not  the  date 
from  which  his  retirement  was  made  to  take 
effect.  Had  Congress  intended  that  the  officers 
promoted  to  fiU  vacancies  caused  by  the  retire- 
ment of  Peary  should  be  given  the  same  date 
as  that  from  which  his  retirement  was  made  to 
take  effect,  it  might  easily  have  so  stated 
in  the  act,  as  was  done  in  section  9  of  the  Navy 
personnel  act  of  March  3,  1899  (30  Stat.,  1004), 
which  pro\aded  in  express  terms  that  "the 
promotions  to  fill  the  vacancies  thus  created 
shall  date  from  the  thirtieth  day  of  June  of  the 
current  year."  By  so  doing  Congress  would 
have  produced  all  the  results  which  would 
have  followed  had  Peary  actually  been  retired 
on  April  6,  1909;  but  even  then  the  fact  as  it 
actually  existed  would  not  have  been  changed. 
Mr.  Peary  was  not  retired  on  April  6,  1909,  and 
there  accordingly  existed  no  vacancy  on  that 


date  by  reason  of  his  retirement,  and  nothing 
that  Congress  might  say  in  an  act  passed  nearly 
two  years  later  could  change  this  fact.  (File 
26255-83:4,  Aug.  4,  1911,  overruUng  file  26255- 
83:3,  Mar.  25,  1911.) 

An  officer  of  the  Navy  who,  by  authority  of  a 
special  act  of  Congress,  is  placed  on  the  retired 
list  with  the  rank  and  highest  rethed  pay  of  a 
rear  admiral  from  a  prior  date,  is  entitled  to  the 
retired  pay  of  a  rear  admiral  of  the  upper  half 
from  the  date  of  his  taking  rank  on  the  retired 
list,  this  being  a  higher  rate  than  he  has  re- 
ceived. ^\^len  Congress  authorizes  the  dating 
back  of  a  commission,  it  intends  to  give  the 
officer  pay  from  such  date,  imless  otherwise 
expressed.  (17  Comp.  Dec,  919,  citing  Mc- 
Alpme  V.  U.  S.,  27  Ct.  Cls.,  493.) 

The  advancement  in  rank  of  an  officer  on  the 
retired  list  of  the  Army  for  civil-war  service 
may  be  made  to  relate  back  to  tlie  date  of  the 
act  authorizing  such  advancement.  The  gen- 
eral rule  is  that  laws  speak  from  the  date  of 
their  enactment,  and  where  something  re- 
mams  to  be  done  (nomination  and  concurrence 
of  the  Senate)  not  inconsistent  with  a  relation 
back  when  it  is  done,  the  general  rule  may  be 
applied.     (25  Op.  Atty.  Gen.,  299.) 

In  accordance  with  a  special  act  of  Congress 
approved  January  30,  1903,  the  President  by 
and  with  the  advice  and  consent  of  the  Senate 
appointed  a  designated  person  to  the  office  of 
passed  assistant  engineer  on  the  retired  list  of 
the  Navy,  from  October  13,  1868.  At  the  date 
of  said  act  the  officer  was  on  the  retired  list 
of  the  Na^y  as  a  second  assistant  engineer,  hav- 
ing been  so  retired  in  1873.  Held,  that  in  this 
case,  while  the  commission  pursuant  to  the 
special  statute  was  dated  in  February,  1903,  the 
appointment  related  back  to  October  16,  1868, 
and  was  a  nunc  pro  tunc  appointment,  having 
the  same  effect  as  if  the  appointment  had  been 
made  originally  on  that  date.  (9  Comp.  Dec, 
572.) 

A  retired  officer  of  the  Navy,  under  a  special 
act  of  Congress,  was  appointed  to  a  higher  grade 
on  the  active  list  and  immediately  transferred 
to  the  retired  list  with  the  retired  pay  of  that 
grade.  This  did  not  effect  a  new  retirement, 
nidUfying  the  original  retirement,  but  merely 
effected  an  advancement  on  the  retired  list  in 
ptursuance  of  the  usual  legislative  method 
adopted  for  that  pmpose.  The  obvious  inten- 
tion, meaning,  and  effect  of  the  act  simply  was 
to  advance  the  officer  already  on  the  retired 
list  one  grade  on  that  list.  He  is  therefore 
debarred  from  the  benefits  of  an  act  which  ap- 
plies only  to  officers  who  have  not  received  an 
advance  of  grade  at  or  since  the  date  of  their 
retu-ement.     (26  Op.  Atty.  Gen.,  111.) 

\Miere  an  officer  of  the  Army  is  retii-ed  with 
the  rank  to  which  his  seniority  entitled  him  to 
be  promoted,  in  accordance  with  the  act  of  Oc- 
tober 1, 1890  (26  Stat.,  562).  his  advancement  in 
rank  and  retirement  are,  for  practical  purposes, 
simultaneous,  for  when  the  officer  is  retired  he 
is  also  promoted,  and  it  can  not,  therefore,  be 
accurately  described  as  '"an  advance  in  grade 
since  the  date  of  his  retirement."  The  use  of 
the  word  "  since"  would  be  inappropriate  when 
no  appreciable  period  of  time  intervenes 
between  the  two  events.  The  promotion  of 
officers  at  the  moment  of  retirement,  under  the 


639 


Sec.  1457. 


Pt.^.  RE VI f^ ED  STATUTES. 


The  Navy. 


act  of  October  1,  1890,  can  hardly  be  said  with 
projirioty  to  be  a  favor.  They  would  have 
been  ontitled  to  the  same  ])romotion  on  the 
active  list  but  for  cause.''  creditable  to  them  and 
establishiuir  a  claim  to  the  country's  fjratitude, 
wliich  operated  to  prevent  such  ]>romotion. 
By  iriviu,::;  the  promotion  at  the  moment  of  or  as 
an  incident  to  retirement,  the  (Jovernment  is 
just  rather  than  generous.  Accordinu'ly,  held 
that  the  otlicers  in  question  did  not  receive  an 
advance  of  srrade  since  the  date  of  their  retire- 
ment, but  are  entitled  to  the  benefits  of  the  act 
of  April  23,  1904  (33  Stat.  264),  relating  to  ad- 
vancement on  the  retired  list  for  civil-war 
service.  (27  Op.  Atty.  Gen..  212,  overruling 
25  Op.  Attv.  Gen..  158,  which  was  atl'irmed  in 
25  Op.  Atty.  Gen..  514,  both  of  which  latter 
opinions  are  noted  below.) 

An  ofhcer  who  fails  physically  upon  examin- 
ation for  j)romotion  aTid  is  retired  with  the  rank 
to  which  his  seniority  entitled  him  to  be  pro- 
moted, in  accordance  with  the  act  of  October  1, 
1890  (26  Stat.,  562),  thereby  receives  an  ad- 
vance of  grade  after  the  date  of  his  retirement, 
and  is  accordingly. excluded  from  the  benefits 
of  a  statute  which  is  restricted  in  its  application 
to  an  oflicer  who  has  not  "received  an  advance 
of  grade  since  the  date  of  his  retirement."  (25 
Op.  Atty.  Gen.,  158;  overruled  by  27  Op.  Atty. 
Gen.,  212,  noted  above.)  The  act  of  October  1, 
1890,  does  not  authorize  the  advancement  of  an 
oflicer  found  physically  disqualified  to  the  next 
higher  grade  on  the  active  list,  and  his  retire- 
ment, after  having  been  so  advanced,  with  the 
rank  of  such  higher  grade.  (25  Op.  Atty.  Gen. , 
514,  affirming  25  Op.  Atty.  Gen..  158.  which 
was  subsequentlv  overruled  by  27  Op.  Atty. 
Gen.,  212.) 

An  officer  of  the  Na^^  examined  for  promo- 
tion who  fails  physically  and  is  retired,  is  prop- 
erly given  the  rank  of  the  higher  grade  on  the 
retired  list,  under  the  act  of  March  4,  1911 
(36  Stat.,  1267),  from  the  date  of  the  vacancy  to 
which  he  would  have  been  promoted  on  the 
active  list,  if  qualified.  (File  27231-89,  Apr.  19, 
1917.)  The  same  rule  has  been  applied  to  the 
retirement  of  officers  of  the  Marine  Corps  under 
the  same  conditions.  (File  26260-3237:1,  Aug. 
25, 1915;  C.  M.  O.  29—1915.  p.  9;  see  also  file 
26260-3604:2,  Oct.  16.  1916.)  However,  date  of 
rank  should  not  be  changed  where  already  fixed 
under  a  different  rule  prcAdously  existing.  (C.  M. 
O.  35—1915.  p.  11;  file  27231-89,  Apr.  19. 1917.) 

The  actual  retirement  of  an  officer  who  fails 
physically  in  line  of  duty  upon  examination  for 
promotion  should  not  take  place  before  the 
occurrence  of  the  vacancy  to  which  he  would 
have  been  promoted  if  qualified ,  he  having  been 
examined  prior  to  the  existence  of  the  vacancy. 
(File  26260-1658,  May  6,  1912,  case  of  First 
Lieut.  E.  S.  Yates.  U.  S.  U.  C.) 

Action  of  the  President  is  necessary  before  the 
retirement  of  an  Army  officer  can  be  made ;  the 
provision  of  the  act  of  February  2,  1901,  section 
32  (31  Stat.,  756).  that  "if  upon  examination 
the  officer  be  found  disqualified  for  promotion, 
he  shall,  upon  the  approval  of  the  proceedings 
by  the  Secretary  of  War,  be  treated  in  the  same 
manner  as  if  he  had  been  examined  prior  to 
promotion  ''  does  not  have  the  effect  of  depriv- 
ing the  officer  of  the  difference  between  retired 
pay  and  active-duty  pay  from  the  date  of  the 


vacancy  to  which  he  would  have  been  promoted 
had  he  successfully  passed  the  examination. 
In  this  case  the  officer,  a  second  lieutenant,  was 
retired  with  the  rank  of  first  lieutenant  on 
March  15,  1906,  "to  date  from  June  18,  1904," 
the  date  he  would  have  been  promoted  to  the 
grade  of  first  lieutenant  had  he  been  found 
qualified.  (12  Comp.  Dec,  628;  file  26260- 
3237:1,  Aug.  25,  1915.) 

Bank  on  retirement  of  oflBlcer  holding 
recess  appointment. — The  acf^eptance  by  an 
Army  officer  of  a  recess  appointment  is  pro- 
visional only  and  leaves  to  the  officer  a  rever- 
sionary right  to  his  former  office  in  case  his  new 
appointment  is  not  confirmed  by  the  Senate. 
An  Army  officer  who  accepts  a  recess  promotion 
and  thereafter  becomes  eligible  for  retirement 
by  reason  of  age  before  theadjournment  of  Con- 
gress and  before  the  appointment  is  acted  upon 
by  the  Senate,  is  entitled  to  the  rank  of  his  new 
appointment.  (29  Op.  Atty.  Gen.,  598.  See 
also  note  to  sec.  1458,  R.  S.,  "Status  of  officer 
pending  confirmation  by  Senate  of  his  promo- 
tion.") 

Rank  on  retirement  of  officer  failing  to 
quaUfy  for  promotion. — The  privilege  which 
an  oflicer  has  of  retirement  "with  the  rank  to 
which  his  senioritv  entitles  him  to  be  pro- 
moted," given  by  the  act  of  October  1,  1890  (26 
Stat.,  562),  is  limited  to  cases  where  the  oflicer 
fails  in  his  physical  examination  only.  (Stein- 
metzi;.  U.  S.,  33  Ct.  Cls..  404.) 

Under  the  clause  in  the  act  of  March  4,  1911 
(36  Stat.,  1267),  pro\idinw  that  officers  of  the 
Navy  who  fail  physically,  in  line  of  duty,  upon 
examination  for  promotion,  shall  be  retired 
with  the  rank  to  which  their  seniority  entitled 
them  to  be  promoted.  Held,  that  an  ensign 
examined  for  promotion  to  lieutenant  (junior 
grade),  found  not  physically  qualified,  and 
subsequently  ordered  to  appear  before  a  retiring 
board,  which  latter  board  finds  him  incapaci- 
tated by  reason  of  physical  disability  incurred 
in  line  of  duty,  should  be  retired  in  the  rank  of 
lieutenant  (junior  grade),  although  in  the  mean- 
time a  vacancy  occurred  in  the  grade  of  lieu- 
tenant to  which  he  would  have  been  entitled 
to  promotion  by  seniority  had  he  qualified  but 
for  which  he  was  never  examined  or  ordered  up 
for  examination.  (File  26253-200:1,  Feb.  17, 
1912.) 

It  may  be  true  that  if  Ensign  Allen  had 
qualified  for  promotion  to  lieutenant  (junior 
grade)  and  been  commissioned  in  that  grade, 
he  would  have  become  the  senior  lieutenant 
(jimior  grade)  and  thereby  entitled  to  the 
vacancy  in  the  grade  of  lieutenant,  provided  he 
qualified  therefor.  But  the  fact  remains  that 
Ensign  Allen  never  qualified  for  the  grade  of 
lieutenant  (junior  grade),  and  was  never  com- 
missioned therein,  and  the  question  of  his 
rights  if  he  had  so  qualified  and  been  promoted 
cannot  now  be  considered.  Never  having  occu- 
pied a  position  in  the  grade  of  lieutenant  (jtm- 
ior  grade)  on  the  active  list,  it  follows  that  he 
never  acquired'  seniority  in  that  grade.  The 
fact  is,  at  the  time  the  vacancy  occurred  in  the 
grade  of  lieutenant  to  which  it  is  suggested  he 
was  entitled  to  promotion  by  seniority,  there 
were  officers  in  the  grade  of  lieutenant  (junior 
grade)  senior  to  Allen,  who  was  then  only  in 
the  grade  of  ensign,  notwithstanding  that  he 


640 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1457. 


would  have  become  senior  to  them  had  he  been 
promoted  to  the  gi-ade  of  lieutenant  (jimior 
grade).     (File  26253-200:1,  Feb.  17,  1912). 

A  captain  in  the  Na^^,  found  disqualified 
by  reason  of  physical  disability  contracted  in 
the  line  of  duty,  upon  examination  for  promo- 
tion by  seniority  to  the  grade  of  rear  admiral, 
and  retired  in  accordance  -with  the  pro\-isiona 
of  the  act  of  March  4,  1911,  is  entitled  to  the 
retired  pay  of  a  rear  admkal  of  the  lower  half 
only,  not^\•ithstanding  that,  had  he  been  quali- 
fied for  promotion  and  actually  been  promoted, 
he  would  have  been,  at  the  time  of  his  retire- 
ment, a  rear  admiral  of  the  upper  half.  (22 
Comp.  Dec,  671). 

It  may  be  true  that  if  Captain  Tappan  had 
been  found  qualified  on  examination  he  would 
have  been  promoted  to  the  grade  of  rear 
admiral,  and  by  the  time  of  his  retirement 
would  have  been  entitled  by  seniority  to  be  a 
rear  admii'al  of  the  upper  half.  But  as  a  matter 
of  fact  he  was  not  found  qualified  on  examina- 
tion. He  never  attained  the  rank  of  rear  ad- 
mu-al  of  the  lower  half  on  the  active  list,  and 
therefore  never  acquired  by  seniority  the  right 
to  be  promoted  to  rear  admu'al  of  the  upper 
half.  The  seniority  of  Capt.  Tappan  entitled 
him  to  be  promoted  to  the  next  higher  grade 
or  rank;  the  next -higher  grade  or  rank  to  that 
of  captain  in  the  Na-s-y  is  rear  admiral  of  the 
lower  half  (citing  Gibson  v.  U.  S.,  194  U.  S., 
182).  (22  Comp.  Dec,  671;  Tappan  v.  U.  S., 
54  Ct.  Cls.,  76.) 

The  "seniority"  to  which  the  ofiicer  is  en- 
titled is  that  of  the  rank  for  which,  upon 
"examination  for  promotion,"  he  has  been 
"found  incapacitated  for  serA-ice  by  reason  of 
physical  disability  contracted  in  the  line  of 
duty."  The  grade  or  rank  for  promotion  to 
which  the  officer  has  been  foimd  physically 
disqualified  upon  his  examination  is  the  only 
one  within  the  intent  of  the  law  to  which  he 
is  entitled  to  be  promoted.  Not  only  seniority 
for  a  particular  gi'ade  but  also  the  finding  of 
an  examining  board  that  the  officer  is  not  physi- 
cally qualified  for  that  very  grade,  are  both 
requisite  to  entitle  him  to  retkement  in  such 
grade.     (File_26253-200:1,  Feb.  17,  1912.) 

A  captain  in  the  Marine  Corps  became  due 
for  promotion  to  the  grade  of  major  from  Aug- 
ust 29,  1916,  by  reason  of  the  naval  appro- 
priation act  of  that  date  which  created  a 
number  of  original  vacancies  in  the  various 
grades  of  the  Marine  <  'orps.  He  failed  physi- 
cally for  promotion  and  was  retired.  In  the 
meantime,  an  officer  in  the  grade  of  major 
failed  upon  examination  for  promotion  to  the 
grade  of  lieutenant  colonel,  to  fill  a  vacancy 
created  in  that  grade  on  August  29,  1916.  Had 
the  captain  been  promoted  to  the  grade  of 
major,  he  would  have  been  number  one  in 
that  gi'ade  and  would  thus  have  become  due 
by  seniority  for  promotion  to  the  grade  of 
lieutenant  colonel  from  August  29,  191^6,  to  fill 
the  vacancy  for  which  his  senior  had  failed  to 
qualify.  Held,  that  under  the  act  of  October  1, 
1890,  made  applicable  to  the  I^Iarine  Corps  by 
act  of  July  28,  1892,  the  captain  mentioned  was 
entitled  by  reason  of  his  seniority  to  be  retired 
with  the  rank  of  major  and  not  ^vith  the  rank  of 
lieutenant  colonel.  (File  26260-3604:2,  Oct. 
16,  1916). 


A  passed  assistant  pajonaster  was  examined 
for  promotion  to  the  grade  of  paymaster,  and 
found  not  physically  qualified,  which  finding 
was  approved  by  the  President  February  10, 
1916.  The  candidate  was  then  ordered  before 
a  retiring  board,  which  found  him  incapaci- 
tated, due  to  disability  incurred  in  line  of  duty, 
which  finding  was  approved  by  the  President 
March  14,  1916.  Under  the  act  of  l^Iarch  4, 
1911,  he  became  entitled  on  retirement  to  the 
rank  to  which  his  seniority  entitled  him  to  be 
promoted.  In  the  grade  of  paymaster  there 
were  the  ranks  of  lieutenant  and  lieutenant 
commander.  Under  the  law  as  it  then  stood 
staff  officers  were  examined  for  promotion  in 
grade,  without  regard  to  the  rank  which  they 
would  receiie  on  promotion,  the  rank  being 
governed  by  the  status  of  the  line  officer  next 
after  whom  they  took  precedence.  Usually, 
if  qualified,  the  officer's  rank  on  promotion 
would  be  the  lower  rank  in  the  upper  grade. 
However,  where  his  examination  was  delayed 
it  might  happen  that  the  officer,  if  qualified, 
would  on  promotion  be  entitled  to  the  higher 
rank  in  the  grade  to  which  promoted.  In  thia 
case,  on  the  date  that  the  otficer  became  due 
for  promotion,  he  would  have  been  entitled, 
if  promoted,  only  to  the  rank  of  lieutenant, 
but  by  reason  of  delay  in  his  examination,  on 
February  10,  1916,  the  date  on  which  he  was 
found  not  physically  Ciualified  for  promotion, 
he  would  have  been  entitled,  if  promoted,  to 
the  rank  of  lieutenant  commander  in  the  grade 
of  pa\Tnaster,  that  being  the  rank  of  his  "run- 
ning mate"  in  the  line.  Held,  that  the  rank 
to  which  his  seniority  entitled  him  to  be  pro- 
moted, within  the  meaning  of  the  act  of 
March  4,  1911,  was  the  rank  of  lieutenant 
commander,  and  accordingly  that  this  offi- 
cer should  receive  that  rank  on  the  retired  list. 
(File  26253^65:2,  Mar.  16,  1916). 

For  other  cases,  see  above,  "WTien  retire- 
ment or  advancement  on  retired  list  takes 
effect,"  and  see  21  Op.  Atty.  Gen.,  385,  noted 
under  section  1448,  Revised  Statutes,  "Physical 
examination  for  promotion  not  sufficient  for 
retirement." 

Restoration  of  retired  officer  to  active 
list.^See  section  1465,  Pevised  Statutes,  and 
note  thereto;  see  also  note  to  section  1459, 
Revised  Statutes. 

Status  of  officer  illegally  retired. — An 
officer  whose  name  is  placed  on  the  retired  list 
of  the  Army  by  the  Secretary  of  ^^'ar,  in  ap- 
parent compliance  with  jirovisions  of  law,  is  an 
officer  de  facto  if  not  de  jure,  and  money  paid 
to  him  as  salary  can  not  be  recovered  back  by 
the  United  States.  (Badeau  v.  U.  S.,  130 
U.  S.,  439.) 

Correction  of  erroneous  retirement. — 
See  notes  to  sections  1408,  1452,  and  1454, 
Revised  Statutes. 

The  President  has  no  power  to  correct  the 
retirement  of  an  oflicer  so  as  to  give  him  in- 
creased rank  from  the  date  of  his  original  re- 
tirement, where  the  law  which  is  claimed  to 
entitle  the  officer  to  the  higher  rank  has  been 
repealed:  mistakes,  if  any,  made  in  the  execu- 
tion of  an  act  which  is  subsequently  repealed, 
can  not  be  rectified  bv  executive  action  after 
such  repeal.     (17  Op.' Atty.  Gen.,  60.^ 


641 


Sec.  1457. 


PL  2.  RF.  VISED  STATUTES. 


The  Navy. 


Where  an  officer  was  found  incapacitated  for 
active  service  by  reason  of  wounds  received  in 
battle,  and  the  President  directed  that,  in 
accordance  with  such  Jindin?,  he  be  placed  on 
the  retired  list  of  the  Army  with  the  hii^her  rank 
to  which  such  disability  entitled  him:  Udd, 
that  the  President  had  the  right  to  revoke  said 
order  before  it  was  actually  executed  and  before 
it  had  reached  the  olficer  concerned,  it  appear- 
ing that  the  officer's  disability  was  not  caused 
by  wounds  received  in  battle;  held  further, 
that  e^  en  had  the  original  order  been  executed 
and  delivered  to  the  officer  and  his  name 
placed  on  the  retired  list  with  increased  rank, 
it  would  be  the  duty  of  the  President  to  correct 
such  action  and  place  the  officer  on  the  retii'ed 
list  with  the  actual  rank  which  he  held  at  the 
time  of  retirement.  (17  Op.  Atty.  Gen.,  7, 
construing  act  July  28,  1866,  sec.  32,  relating 
to  the  Army.) 

On  Februarj^  22,  1869,  by  direction  of  the 
President,  Paymaster  Gen.  Benjamin  W.  Brice 
was  retired  from  active  service,  and  on  the  same 
day  Asst.  Paymaster  Gen.  Nathan  W.  Brown 
was  nominated  to  be  Paymaster  General  vice 
Brice,  retired;  Deputy  Paymaster  Gen.  Hiram 
Leonard  to  be  Assistant  Paymaster  General  vice 
Brown,  promoted;  Paymaster  Benjamin  Alvord 
to  be  Deputy  Paymaster  General,  \dce  Leonard, 
promoted;  and  Virgil  S.  Eggleston  to  be  pay- 
master, vice  Alvord,  promoted.  On  March  3 
the  Senate  adAdsed  and  consented  to  the  ap- 
pointment of  Eggleston  to  be  a  paymaster  in 
the  Army.  The  nominations  of  the  others  were 
not  consented  to  by  the  Senate.  On  March  5, 
by  direction  of  the  President,  the  order  placing 
Paymaster  Gen.  Brice  upon  the  retired  list  was 
revoked,  and  he  was  to  be  considered  as  on 
duty  as  Paymaster  General  from  February  22, 
the  date  of  his  retirement.  Held,  that  there 
was  and  is  no  vacancy  in  the  office  of  pay- 
master to  which  Eggleston  could  be  appointed, 
as  Alvord  was  not  removed  from  the  office  of 
paymaster  unless  he  was  appointed  Deputy 
Paymaster  General,  and  had  accepted  the  ap- 
pointment, and  he  was  not  so  appointed,  as  the 
Senate  had  not  advised  and  consented  thereto, 
and  the  law  provides  that  no  officer  in  the 
Army  shall,  in  time  of  peace,  be  dismissed 
from  service  except  upon  and  in  pursuance  of 
the  sentence  of  a  court-martial  to  that  effect  or 
in  commutation  thereof.  (13  Op.  Atty.  Gen., 
44;  but  see  23  Op.  Atty.  Gen.,  30,  noted  under 
sec.  1363,  R.  S.,  "Effect  of  nomination  and 
confirmation  of  an  officer  for  appointment  to 
grade  already  full.") 

The  retirement  of  an  officer  of  the  Marine 
Corps  on  furlough  pay,  under  section  1454, 
Revised  Statutes,  was  in  error,  as  said  section 
does  not  apply  to  the  ^larine  Corps.  Accord- 
ingly, so  much  of  the  President's  order  relating 
to  this  officer's  retirement,  as  provided  that  he 
should  receive  only  furlough  pay,  must  be 
treated  as  of  no  effect.  (15  Op.  Atty.  Gen., 
442.) 

Executive  orders  accomplish  retirement  only 
as  they  apply  to  particular  cases  and  when  not 
in  conflict  with  the  law.  It  is  the  law  which 
gives  the  right,  which  fixes  the  officer's  status, 
and  consequent  pay,  and  not  the  recommenda- 
tion of  a  retiring  board,  even  though  supple- 
mented by  orders  which  have  met  the  approval 


of  the  President.  And  where  the  decision  will 
turn  exclusively  upon  the  proper  construction 
of  a  statute,  an  executive  order  is  not  final  nor 
binding  on  the  court.  (Cloud  r.  U.  S.,  43 
Ct.  Cls.,  69.) 

The  refusal  of  the  head  of  the  administrative 
department  to  recognize  a  retired  officer  as  of 
the  rank  to  which  he  is  entitled  by  law,  does 
not  deprive  the  Court  of  Claims  of  jurisdiction 
toallowthe  officer  the  pay  of  such  rank.  (Cloud 
V.  U.  S..  43  Ct.  Cls.,  69.) 

Courts  can  not  order  retirement  of 
oflB.cers. — Where  an  officer  of  the  Army  has 
been  examined  for  promotion,  and  upon  failure 
to  qualifyis  honorably  discharged  from  the  serv- 
ice, the  courts  are  without  jurisdiction  to 
order  him  placed  on  the  retired  list  upon  his 
petition  setting  forth  that  he  had  been  found 
by  a  board  physically  incapacitated  for  serAice 
and  that  he  was  thereby  entitled  to  be  retired 
and  entitled  to  retii'ed  pay  during  life,  instead 
of  being  dismissed  with  one  year's  pay.  The 
report  of  the  board  is  not  final,  but  must  be 
approved  or  disapproved  by  the  President. 
This  is  the  only  relief  from  the  errors  or  injus- 
tice that  may  be  done  by  the  board  which  is 
provided .  The  courts  have  no  power  to  roAiew. 
The  courts  are  not  the  only  instrumentalities 
of  the  Government.  They  can  not  command 
or  regidate  the  Army.  To  be  promoted  or  re- 
tired may  be  the  right  of  an  officer,  the  value 
to  him  of  his  commission,  but  greater  even  than 
that  is  the  welfare  of  the  country,  and  it  may 
be,  even  its  safety,  through  the  efficiency  of  the 
Army.     (Reaves  v.  Ainsworth,  219  U.  S.,  296.) 

Where  it  was  provided  by  law  that  retired 
officers  who  served  during  the  ciAdl  war  should 
be  entitled  to  the  rank  and  retired  pay  of  the 
next  higher  grade,  and  the  Navy  Department 
decided  that  a  particular  officer  was  not  en- 
titled to  the  benefits  of  the  act,  a  decision  of  the 
Court  of  Claims  (Moser  v.  U.  S..  42  Ct.  Cls.,  86), 
holding  that  the  officer  was  entitled  to  the  re- 
tired pay  of  the  next  higher  grade,  and  pur- 
porting to  decide  that  he  was  also  entitled  to 
the  rank  of  such  grade,  does  not  estop  the  Sec- 
retary of  the  Na\'y  from  contesting  the  officer's 
claim  to  the  rank  of  such  higher  grade.  (28 
Op.  Atty.  Gen..  352;  Moser  r.  Meyer.  38  App. 
D.  C,  13.) 

For  other  cases,  see  note  to  section  417,  Re- 
vised Statutes. 

Authority  of  the  Secretary  of  the  Navy 
to  determine  grade  of  retired  oflB.cer.— 
WTiatever,  if  any.  duty  the  Secretary  of  the 
Navy  has  about  the  matter  of  placing  names 
upon  the  retired  list,  it  is  not  that  he  liimself 
shall  settle  the  question  of  grade  or  of  retire- 
ment, but  after  a  determination  of  those  ques- 
tions by  the  President,  with  whom  they  lie,  to 
give  effect  to  his  directions.  Should  the  Presi- 
dent in  fact  retire  an  officer  with  a  certain  grade, 
and  the  Secretary  of  the  Navy  decline  to  enter 
the  name  of  the  officer  upon  the  list  as  of  that 
grade,  there  might  be  room  to  make  a  good  argu- 
ment showing  that  his  duty  to  do  so  was  minis- 
terial and  ought  to  be  controlled  by  mandamus ; 
but  when  the  President  retires  one  with  a  cer- 
tain grade,  or  in  a  certain  grade,  there  isno  where 
in  the  law  any  authority  at  all  for  the  placing  of 
that  name  on  the  retired  list  as  of  another  or  dif- 


642 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1457. 


ferent  grade.     (Moser  v.  Meyer,  38  App.  D.  C, 
13.) 

An  officer  was  retired  pursuant  to  the  express 
direction  and  approval  of  the  President,  who 
by  order  did  retire  the  officer  as  a  captain  of  the 
Navy,  and  at  no  time  at  or  since  such  retirement 
did  the  President  confer  a  higher  rank  or  office 
upon  said  officer.  The  President,  then,  having 
actually  retired  the  officer  with  the  grade  of 
captain,  it  can  not  be  said  that  there  rested  upon 
the  Secretary  of  the  Navy  a  duty  to  accord  to 
the  officer  upon  the  Navy  Register  a  different 
grade.  In  short,  the  position  of  the  officer 
comes  to  no  more  than  this;  that  he  has  been 
retired  by  the  President  with  the  grade  of  cap- 
tain, while  he  conceives  himself  to  be  entitled 
to  retirement  with  the  rank  of  rear  admiral; 
he  asks  that  the  Secretary  of  the  Navy  be  re- 
quired, through  the  writ  of  mandamus,  to  place 
his  name  upon  the  retired  list  with  the  rank  of 
rear  admiral,  which  the  President  declined  to 
accord  him.  For  this,  there  is  neither  duty, 
authority,  nor  power  in  the  Secretary  of  the 
Navy;  therefore,  no  room  for  a  mandamus  to  go. 
(Moser  v.  Meyer,  38  App.  D.  C,  13.) 

Physical  examination  for  promotion  not 
sufficient  for  retirement. — See  note  to 
section  1448,  Revised  Statutes. 

Difference  between  retirement  and 
waiting  orders. — There  is  a  well-recognized 
distinction  between  "retirement"  and  "wait- 
ing orders"  (see  sees.  1443,  et  seq.;  sec.  1556); 
and  an  officer  [Revenue-Cutter  Service — now 
Coast  Guard]  placed  on  "permanent  waiting 
orders  "  was  not  thereby  retired.  (21  Op.  Atty. 
Gen.,  286;  see  also  11  Comp.  Dec,  762.) 

Difference  between  retirement  and  dis- 
charge.— An  Army  officer  by  his  retirement 
is  not  discharged  from  service  or  out  of  the  serv- 
ice.    (U.  S.  V.  Gillmore,  189  Fed.  Rep.,  761.) 

For  other  cases,  see  above,  "  Status  of  retired 
officers;  part  of  the  Navy." 

Residence  of  retired  oflacer. — A  retired 
officer  of  the  Navy  or  Marine  Corps  is  not 
required  to  remain  at  his  official  residence;  he 
may  go  at  his  pleasure  to  any  point  within  the 
United  States,  or  travel  from  point  to  point, 
the  only  requirement  being  that  he  keep  the 
Navy  Department  advised  of  his  present 
address,  his  official  residence  remaining  as 
recorded  at  the  Department.  Under  the  Navy 
Regulations  he  is  not  authorized  to  change  his 
official  residence  without  permission  of  the 
Bureau  of  Navigation.  A  retired  officer  of  the 
Marine  Corps  relieved  from  duty  and  ordered 
to  his  home  is  entitled  to  mileage  only  from  the 
place  he  is  relieved  from  duty  to  his  official 
residence.    (17  Comp.  Dec,  952.) 

There  is  no  law  or  regulation  which  limits 
the  selection  of  the  home  of  an  officer  on  retire- 
ment from  active  service  to  a  place  within  the 
continental  limits  of  the  United  States.  (18 
Comp.  Dec,  638.) 

The  Army  mileage  law  of  June  12,  1906  (34 
Stat.,  246),  which  provided  "that  when  the 
station  of  an  officer  is  changed  while  he  is  on 
leave  of  absence  he  will,  on  joining  the  new 
station,  be  entitled  to  mileage  for  the  distance 
to  the  new  station  from  the  place  Avhere  he 
received  the  order  directing  the  change  pro- 
viding the  distance  be  no  greater  than  from  the 
old  to  the  new  station;  but  if  the  distance  be 


greater  he  will  be  entitled  to  mileage  for  a 
distance  equal  to  that  from  the  old  to  the  new 
station  only, "  is  applicable  in  principle  to 
the  mileage  of  an  Army  officer  placed  on  the 
retired  list  and  ordered  to  his  home,  M'here  he 
selects  a  home  abroad.    (18  Comp.  Dec. ,  634.) 

When  an  officer  is  retired  and  ordered  to 
proceed  to  his  home,  if  the  order  is  not  obeyed 
within  a  reasonable  time  it  loses  its  character 
as  an  order  to  travel  on  public  business,  and  if 
the  travel  is  subsequently  performed,  it  is 
at  the  officer's  pl,teasure  and  convenience,  and 
hot  under  orders  within  the  meaning  of  the 
statute  allowing  mileage.  (13  Comp.  Dec, 
112.) 

As  to  status  of  retired  officer  residing  abroad, 
with  reference  to  acts  by  him  amounting  to 
expatriation  or  abandonment  of  his  office  in  the 
U.  S.  Navy,  see  note  to  section  1428,  Revised 
Statutes. 

A  retired  officer  who  resides  at  a  place  where 
it  is  inconvenient  or  impossible  for  him  to 
receive  his  pay  in  person  must,  in  the  discre- 
tion of  the  disbursing  officer  on  whose  roll  he  is 
carried,  furnish  evidence  of  his  right  to  receive 
his  pay  in  accordance  with  Art.  1338,  Navy 
Regulations,  1909  [Art.  R-4385,  Navy  Regs., 
1913].     (File  27231-26.) 

Retired  officer  cannot  be  appointed  to 
office  limited  to  active  list.^The  permanent 
designation  of  the  superintendent  of  the  State, 
War,  and  Navy  Building  is  an  imjjerative 
order  to  continuous  duty,  and  this  is  quite 
incompatible  with  the  selection  of  a  retired 
officer,  who  ia  generally  exempt  from  such 
orders.  It  cannot  be  held  that  the  act  author- 
ized an  appointment,  which  is  an  order  from 
which  such  officers  were  exempt.  It  is  easy 
to  see  here  that  the  fact  that  the  duties  imposed 
upon  this  superintendent  require  for  their 
performance  an  officer  fully  qualified  for  active 
duty  is  a  sufficient  reason  why  this  appointment 
was  requiied  to  be  made  from  the  active  list, 
and  not  from  those  who  have  already  passed 
the  period  of  their  full  usefulness  and  have  on 
that  account  been  retired  from  active  service. 
(25  Op.  Atty.  Gen.,  508.) 

For  other  cases,  see  notes  to  sections  421, 
1225  and  1462,  Revised  Statutes. 

Retired  officer  holding  position  as  Con- 
gressman.— The  question  whether  a  Con- 
gressman can  receive  pay  as  a  retired  Army 
officer  is  one  of  grave  doubt,  which  only  a 
determination  of  the  Supreme  Court  can 
satisfactorily  settle.  (20  Op.  Atty.  Gen.,  686; 
see  also  file  27231-74,  May  12,  1916.) 

Veto  of  bill  to  make  retired  officers  of 
Army  not  amenable  to  court-martial. — 
"The  original  act  establishing  the  retired  list 
of  the  Army  (act  of  Aug.  3,  1861),  referred  to 
the  personnel  therein  included  as  only  partially 
retired,  and  provided  that  a  retired  officer 
should  be  entitled  to  wear  the  uniform  of  hia 
grade,  should  be  borne  on  the  Army  Register, 
and  should  be  subject  to  the  rules  and  Articles 
of  War,  and  to  trial  by  general  court-martial  for 
any  breach  of  these  articles.  By  the  act  of 
July  24,  1876,  officers  of  the  Army  on  the  retired 
list  were  specifically  declared  to  constitute  a 
part  of  the  Regular  Army,  a  provision  which 
is  found  repeated  in  subsequent  acts  affecting 
the  organization  of  the  Army;  and  other  stat- 


643 


Sec.  1457. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


utcs  enacted  during  this  period  jnade  retired 
officers  of  the  Army  available  for  certain  classes 
of  active  duty,  in  time  of  peace  with  their  con- 
sent, and  in  time  of  war  A^'ithout  their  consent. 
By  the  recently  enacted  National  Defense  Act, 
the  authority  of  the  President  over  retired  offi- 
cers has  been  further  extended,  so  as  to  make 
thera  8ul)jcct  to  his  call  in  time  of  war  for  any 
kind  of  duty  witliout  any  restriction  whatever. 
Courts  and  Attorneys-General  have,  in  a  long 
line  of  decisions,  lield  that  officers  of  the  Army 
on  the  retired  list  hold  public  office.  It  thus 
appears  that  both  the  legislative  and  judicial 
branches  have  drawn  a  sharp  distinction  in 
status  between  retired  officers,  who  are  regarded 
and  governed  at  all  times  as  an  effective  reserve 
of  skilled  and  experienced  officers  and  a  poten- 
tial soui'ce  of  military  strength,  and  mere  pen- 
sioners, from  whom  no  further  military  service 
is  expected.  Officers  on  the  retired  list  of  the 
Army  are  officers  of  the  Army,  members  of  the 
Military  Establisliment  distinguished  by  their 
long  8er\'ice,  and,  as  such,  examples  of  dis- 
cipline to  the  officers  and  men  in  active  service. 
Moreover,  they  wear  the  uniform  of  the  Army, 
their  education  and  ser\dce  hold  them  out  as 
persons  especially  qualified  in  military  matters 
to  represent  the  spirit  of  the  Military  Estab- 
lishment, and  they  are  subject  to  active  duty 
in  time  of  national  emergency  by  the  mere 
order  of  the  Commander-in-Chief.  They  are, 
therefore,  members  of  the  Army,  officers  of  the 
United  States,  exemplars  of  discipline,  and 
have  in  their  keeping  the  good  name  and  the 
good  spirits  of  the  entire  Military  Establishment 
before  the  world.  Occupjing  such  a  relation, 
their  subjection  to  the  rules  and  Articles  of 
War  and  to  trial  by  general  court-martial  have 
alwa\s  been  regarded  as  necessary,  in  order 
that  the  retired  list  might  not  become  a  source 
of  tendencies  which  would  weaken  the  dis- 
cipline of  the  active  land  forces  and  impair 
that  control  over  those  forces  which  the  Con- 
stitution vests  in  the  President. 

'■  The  purpose  of  the  Articles  of  War  in  times 
of  peace  is  to  bring  about  a  uniformity  in  the 
application  of  military  discipline  which  will 
make  the  entire  organization  coherent  and 
effective,  and  to  engender  a  spirit  of  coopera- 
tion and  proper  subordination  to  authority 
which  vrill  in  time  of  war  instantly  make  the 
entii-e  Army  a  unit  in  its  purpose  of  self-sacrifice 
and  devotion  to  duty  in  the  national  defense. 
These  purposes  can  not  be  accomplished  if  the 
retired  officers,  still  a  part  of  the  Military  Estab- 
lishment, still  relied  upon  to  perform  important 
duties,  are  excluded,  upon  retirement,  from 
the  wholesome  and  unif>dng  effect  of  this  sub- 
jection to  a  common  discipline.  I  am  per- 
suaded that  officers  upon  the  retired  list  would 
themselves  regard  as  an  invddious  and  unpal- 
atable discrimination  which  in  effect  excluded 
thera  from  full  membership  in  the  profession 
to  which  they  have  devoted  their  lives,  and 
in  which  by  the  laws  of  their  country  they  are 
still  members.  So  long  as  Congress  sees  fit  to 
make  the  retired  personnel  a  part  of  the  Army 
of  the  United  States,  the  constitutionality  of 
the  proposed  exemption  of  such  personnel  from 
all  liability  under  the  Articles  of  War  is  a 
matter  of  serious  doubt,  lea\-ing  the  President, 
as  it  does,  %vithout  any  means  sanctioned  by 


statute  of  exercising  over  the  personnel  thus 
exempted  the  power  of  command  vested  in  him 
by  the  Constitution. 

"Convinced,  as  I  am,  of  the  un^\'is(lom  of 
this  provision  and  of  its  baneful  effect  upon  the 
discipline  of  the  Army;  doubting,  as  I  do,  the 
power  of  Congress  wholly  to  exempt  retired 
officers  from  the  control  of  the  President,  wliile 
declaring  them  to  ])e  a  part  of  the  Regular  Army 
of  the  United  States,  I  am  constrained  to  return 
this  bill  without  my  approval."  (Veto  mes- 
sage of  President  Wilson,  Aug.  18,  lOlG,  53 
Cong.  Rec,  14950.) 

"Navy  Register,"  history  and  definition 
of,  etc. — "An  exhaustive  research  has  failed 
to  disclose  any  statute  requiring  the  publication 
by  the  Secretary  of  the  Navy  of  a  Na\y  reg- 
ister. Many  references  are  found  in  the  laws 
to  the  'Navy  register,'  or  to  the  'official  Navy 
register,'  or  'official  register  of  the  Navy,'  etc. 
Thus  the  act  of  June  29,  1906  (34  Stat.,  554), 
provides  for  the  advancement  in  rank  and  pay 
of  officers  who  served  during  the  civil  war. 
One  of  the  conditions  of  such  advancement, 
as  stated  in  this  act,  is  that  the  officer's  name 
must  be  'borne  on  the  official  register  of  the 
Na\'y.'  The  act  was  nevertheless  held  to  apply 
to  mates,  whose  names  are  not  included  in  the 
published  Navy  Register,  as  that  publication 
includes  only  'commissioned  and  warrant 
officers  of  the  United  States  Navy^  and  ]\Iarine 
Corps,'  and  mates  do  not  come  within  these 
designations.  In  connection  with  the  cases 
of  mates,  it  was  decided  that  the  'official  reg- 
ister of  the  Navy'  was  the  official  record  or 
register  of  officers  of  the  Navy  kept  in  the 
Bureau  of  Navigation,  and  not  the  published 
register.  This  seems  to  be  the  obvious  con- 
struction of  the  expressions  referring  to  the 
Navy  register  which  are  found  in  the  various 
acts  of  Congress,  and  laws  requiring  the  Secre- 
tary of  the  Na\y  to  enter  certain  officers' 
names  on  the  Navy  register,  or  to  omit  certain 
other  names  from  the  Na\-y  register,  are  not, 
therefore,  construed  as  requiring  the  pubJicn- 
tion  of  such  a  register."  (File  27231-8,  Feb. 
7,  1911.) 

"An  examination  of  the  records  discloses 
that  lists  of  officers  of  the  Navy,  mth  certain 
information  pertaining  thereto,  were  sent  to 
the  respective  houses  of  Congress  at  various 
times  in  pursuance  of  resolutions,  one  of  which 
was  House  of  Representatives  resolution  of 
January  23,  1812  (Annals  of  Congress,  12th 
Cong.  1st  sess.  pt.  1,  p.  929),  which  read 
as  follows:  'Resolved,  That  the  Secretary 
of  the  Na\y  be  directed  to  lay  before  this 
House  a  statement  of  the  names,  rank,  pay, 
and  rations  of  the  commissioned  officers  and 
midshipmen  belonging  to  the  Navy  of  the 
United  States.'/'     (File  27231-8,  Feb.  7,  1911.) 

"Reference  is  next  found  to  a  resolution  of 
the  House,  dated  March  3,  1813,  reading  as 
follows:  'Resolved,  That  the  Secretary  of  the 
Navy  be,  and  he  is  hereby,  directed  to  report 
to  this  House  at  the  next  session  of  Congress 
astatementof  the  number  of  *  *  *  officers 
in  the  naval  service  of  the  United  States,  their 
rank,  pav,  and  employ.'  "  (File  27231-8,  Feb. 
7,  1911. )" 

[  ■ '  There  appears  to  have  been  a  Senate  reso- 
lution, dated  August  2,  1813,  on  this  subject. 


644 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1457. 


but  I  have  been  unable  to  locate  a  copy 
thereof."  (Memo,  of  J.  A.  G.,  Feb.  7,  1911,  file 
27231-8).] 

"Next  in  order  is  Senate  resolution  of 
December  13,  1815,  as  follows:  'Resolved,  That 
the  Secretary  of  War  and  the  Secretary  of  the 
Navy  be  requested  to  furnish  annually,  on  the 
first  of  January,  each  Member  of  the  Senate 
with  a  copy  of  the  Register  of  the  Officers  of 
the  Army  and  Navy  of  the  United  States." — 
Annals  of  Congress,  14th  Congress,  1st  session, 
1815-16,  pages  21,  22."  (File  27231-8,  Feb. 
7,  1911.) 

' '  Following  this  resolution  [last  above  quoted] 
the  Na\y  Register  appears  to  have  been  printed 
annually,  'by  order  of  the  Secretary  of  the 
Navy,'  and,  as  late  as  1860,  it  was  stated  on 
the  title  page  of  the  Register  'Printed  by  order 
of  the  Secretary  of  the  Navy,  in  compliance 
with  a  resolution  of  the  Senate  of  the  United 
States  of  December  13,  1815.'  "  (File  27231-8, 
Feb.  7,  1911.) 

"The  duty  of  printing  the  Navy  Register 
and  furnishing  one  copy  to  each  Member  of 
the  Senate  is  not  now  required  of  the  Secre- 
tary of  the  Na\'y,  as,  by  act  of  January  12, 
1895,  entitled  'An  act  pro\T.ding  for  the  public 
printing  and  binding  and  the  distribution  of 
public  documents  (28  Stat.,  601),  provision  is 
made  for  the  printing  and  distribution  of  the 
Navy  Register  as  a  public  document  by  the 
'Joint  Committee  on  Printing.'  Section  1 
of  the  act  cited  reads  as  follows:  'That  there 
shall  be  a  joint  committee  on  printing,  con- 
sisting of  three  Members  of  the  Senate  and 
three  Members  of  the  House  of  Representatives, 
who  shall  have  the  powers  hereinafter  stated.' 
Section  54  of  this  act  provides:  'WTienever  any 
document  or  report  shall  be  ordered  printed 
by  Congress,  such  order  to  print  shall  signify 
the  "usual  number"  of  copies  for  binding  and 
distribution  among  those  entitled  to  receive 
them.  No  greater  number  shall  be  printed 
unless  ordered  by  either  House,  or  as  herein- 
after provided.  ^Tien  a  special  number  of  a 
document  or  report  is  ordered  pi'inted,  the 
usual  number  shall  also  be  printed,  imless 
already  ordered.  The  usual  number  of  docu- 
ments and  reports  shall  be  one  thousand  six 
hundred  and  eighty-two  copies,  which  shall 
be  distributed  as  follows:  *  *  *.'  And 
section  73:  'Extra  copies  of  documents  and 
reports  shall  be  printed  promptly  when  the 
same  shall  be  ready  for  publication,  and  shall 
be  bound  in  paper  or  cloth  as  directed  by  the 
Joint  Committee  on  Printing,  and  shall  be  of 
the  number  following  in  addition  to  the  usual 
number:  *  *  *  Of  the  Registers  of  the 
Army  and  Navy,  fifteen  hundred  copies  of 
each;  five  hundred  for  the  Senate  and  one 
thousand  for  the  House.'  "  (File  27231-8,  Feb. 
7,  1911.) 

"It  does  not  appear  from  any  of  the  fore- 
going that  the  secretary  has  ever  been  required 
by  law  to  'publish'  an  annual  Navy  Register. 
At  one  time  he  was  requested  by  the  Senate 
to  furnish  each  of  its  members,  annually,  with  a 
copy  of  the  'Register  of  the  Officers  of  the 
*  *  *  Na\'y  of  the  United  States,'  in  com- 
pliance with  which  request  the  Navy  Register 
was  printed  annually  and  the  necessary  number 
furnished  to  the  Senate.     Now,  however,  it  is 


no  longer  required  of  the  Secretary  of  the  Navy 
to  print  any  copies  whatever  of  the  Navy 
Register,  as  the  printing  thereof  comes  under 
the  Joint  Committee  on  Printing  and  the  Public 
Printer.  The  most  that  is  required  of  the  Secre- 
tary of  the  Navy  is  to  furnish  Congress  with  a 
list  of  the  officers  of  the  Navy  and  I^Iarine  Corps, 
after  which  the  matter  passes  out  of  the  Secre- 
tary's hands  and  the  printing  is  done  under  the 
direction  of  Consjress  through  its  joint  commit- 
tee."    (File  27231-8,  Feb.  7,  1911.) 

The  "Oflicial  Register  of  the  United  States" 
is  published  by  the  Director  of  the  Census  in 
pursuance  of  the  act  of  June  7,  1906  (31  Stat., 
219).  and  contains  a  list  of  "persons  in  the  civil, 
military,  and  naval  service  of  the  United 
States,  and  list  of  vessels. ' '  The  Director  of  the 
Census  is  the  only  oflicial  expressly  required  by 
law  to  publish  an  official  register  of  persons  in 
the  naval  service.  (File  ^27231-8,  Feb.  7, 
1911.) 

The  judiciary  will  not,  by  mandamus,  com- 
pel the  Secretary  of  War  to  change  the  position 
of  an  officer's  name  in  the  Army  Register,  even 
though  it  be  conceded  that  an  error  exists 
therein.  (Edwards  v.  Root,  24  App.  D.  C, 
419,  431;  as  to  the  Navy,  see  file  27231-8,  Feb. 
7, 1911,  and  Moser  r.  ]\leyer,  38  App.  D.  C,  13). 

"The  mere  designation  of  lineal  or  relative 
rank  in  the  Official  Army  Register  does  not  fix 
and  determine  his  rank  in  the  Army  and  his 
right  to  promotion.  That  right  depends  upon 
other  conditions.  It  is  true  the  Official  Army 
Register,  is  an  official  record  of  the  War  De- 
partment, that  furnishes  evidence  of  the  rank 
and  status  of  officers  in  the  various  grades  and 
classes  of  the  officers  in  the  Army  organization ; 
but  it  does  not  per  se  establish  and  determine 
any  right  to  particular  rank,  much  less  to  promo- 
tion. This  latter  rank  depends  upon  quite 
different  conditions,  and  apart  from  the  evi- 
dence furnished  by  the  Official  Army  Register. 
Promotion  in  a  certain  sense  is  a  new  appoint- 
ment, and,  to  the  position  of  captain,  can  only 
be  effected  by  the  nomination  of  the  President, 
with  the  advice  and  consent  of  the  Senate. 
The  mere  entry,  therefore,  in  the  Official  Army 
Register  of  the  name  and  rank  of  the  appellant 
would  not  operate  to  entitle  him  to  or  to  con- 
trol such  promotion.  That  must  rest  primarily 
in  the  judsiment  and' discretion  of  the  Presi- 
dent." (Edwards  v.  Root,  24  App.  D.  C,  419, 
431;  see  file  27231-8,  Feb.  7,  1911.) 

In  the  published  Navy  Register  "various 
methods  are  adopted  to  indicate  the  rank  of 
oflicers  whose  rank  is  higher  than  that  belong- 
ing to  their  grade.  Thus,  in  the  case  of  officers 
on  active  duty,  serving  as  chiefs  of  bureau  and 
as  Judge  Advocate  General,  the  higher  rank 
held  by  them  under  their  commissions  as  such 
chiefs  of  bureau  or  Judge  Advocate  General  ia 
indicated  merely  by  a  footnote,  the  names  of 
such  officers  being  placed  in  their  regular  places 
in  their  respective  grades.  Thus  *  *  *  an 
officer  of  the  Navy  on  the  active  list,  whose 
actual  grade  is  that  of  captain,  but  who  has 
the  rank  of  rear-admiral  while  serving  as  ( 'hief 
of  the  Bureau  of  Navigation,  is  placed  in  his 
regular  position  in  the  grade  of  captain  in  the 
Navy  Register,  and  not  placed  in  the  grade  of 
rear-admiral,  an  appropriate  footnote  being 
made  to  indicate  his  higher  rank.     In  the  case 


645 


Sec.  1458. 


Pt.S.  RE  VISED  STAT  UTES . 


The  Navy. 


of  a  large  number  of  retired  officers,  whose  grade 
on  the  active  list  was  that  of  cai)tain,  but  who 
were  given  the  rank  of  rear-admiral  on  the 
retired  list  bv  reason  of  ci\dl-war  serAdce  their 
names  are  collected  under  the  heading  'Rear- 
Admirals,'  and  the  fact  that  they  enjoy  a  higher 
rank  than  that  belonging  to  their  grade  on  the 
active  list  is  indicated  by  a  letter  of  the  alpha- 
bet in  a  column  under  the  heading '  Law  govern- 
ing retirement.'  On  the  other  hand,  there  are 
a  number  of  officers  whose  actual  grade  is  that 
of  mate,  but  who  have  the  rank  of  warrant 
oflicer  on  the  retired  list  because  of  ci\dl-war 
service.  Their  names  will  be  found  on  page 
158  of  the  Register  for  1910,  under  the  heading 
of '  Mates'  and  not '  Warrant  Oliicers. '  In  their 
cases,  however,  there  is  a  subheading  reading 
'  Rank  of  Warrant  Officer. '  This  latter  method 
is  followed  in  the  case  of  the  various  staff  officers 
who  received  the  rank  of  a  higher  grade  on  retire- 
ment, as,  for  example,  in  the  case  of  ^ledical 
Director  Francis  M.  Gunnell,  whose  name  is 
printed  under  the  heading  of  'Medical  Direc- 
tors' with  a  subheading,  'Rank  of  Rear  Ad- 
miral,' and  not  under  the  heading  of  Rear- 
Admirals.  In  the  cases  of  mates  and  certain 
staff  officers,  it  was  specifically  held  by  the 
Attorney  General  in  several  published  opinions 
that  these  officers  did  not  obtain  an  advance  in 
grade  by  \-irtue  of  their  ci\dl-war  service,  but 
retained  their  old  gi-ade  with  the  addition  of  a 
higher  rank.  This,  however,  w^as  merely  the 
application  to  certain  specific  cases  of  general 
principles  already  well  understood."  (File 
27231-8, Feb.  7,  1911.) 

Formerly  the  register  of  officers  of  the  Navy, 
kept  in  the  Na^^  Department,  was  kept  in 
bound  record  books,  and  after  the  name  of  an 
officer  was  once  entered  in  the  book,  its  posi- 
tion was  not  changed ,  but  changes  in  his  rank 
were  indicated  by  notation  on  the  page  where 
his  name  appeared.  It  follows  that  there  was 
no  list  of  rear  admirals,  or  list  of  captains,  kept 
in  the  department,  nor  list  of  retired  officers, 
as,  even  after  retirement,  the  officer's  name  and 


record  was  kept  in  the  same  position.  Refer- 
ences in  acts  of  Congi'ess  which  would  indicate 
that  the  names  of  officers  were  kept  by  rank, 
and  retired  officers  placed  in  a  separate  list, 
may  be  explained  on  the  ground  that  Congress 
was  not  informed  as  to  the  method  in  which 
the  ofticial  register  was  kept  in  the  Navy  De- 
partment. Now,  the  register  of  officers  is  kept 
by  the  card-index  system,  the  positions  of  the 
cards  being  changed  upon  corresponding 
changes  in  the  officer's  rank.  Under  this 
arrangement,  the  names  of  retu'ed  oftlcers  are 
kept  in  a  separate  place,  but  the  cards  in  their 
cases  are  arranged  al])habetically,  instead  of  by 
rank  as  in  the  case  of  officers  on  the  active  list. 
(File  27231-8:8,  Mar.  9,  1911.) 

The  Secretary  of  the  Navy  is  not  reqvured  to 
publish  a  Navy  Register  at  all.  For  a  num])er 
of  years  prior  to  and  including  the  year  1907, 
such  a  register  was  published  semiannually 
by  the  Navy  Department,  on  the  first  day  of 
January  and  July,  respectively.  In  the  July 
register,  the  names  of  retii'ed  officers  were 
omitted  altogether,  with  the  exception  of  such 
retired  oilicers  as  were  employed  on  active 
duty.  Beginning  with  1908  the  publication  of 
a  register  in  July  has  been  omitted.  The  pub- 
lication of  a  register  in  January  could  also  be 
omitted,  should  the  Secretary  of  the  Navy  so 
decide.  There  is  also  a  Navy  Register  or  di- 
rectory" published  monthly  by  the  Navy 
Department,  and  in  this  register  the  names  of 
aU  officers  are  alphabetically  arranged,  whether 
on  the  active  or  retired  list.  The  names  of 
officers  could  be  so  arranged  also  in  the  annual 
register,  should  the  Secretary  of  the  Navy  so 
decide,  as  there  is  nothing  in  the  law  which 
requires  him  to  publish  any  officer's  name  in 
any  particular  list.  (File  27231-8:8,  "Notes 
upon  argument  of  Mr.  George  A.  King,  for  peti- 
tioner. Mar.  10, 1911,"  in  case  of  United  States 
of  America  ex  rel.  Jefferson  F.  Moser  v.  George 
von  L.  Meyer,  Secretary  of  the  Navy.  At  Law, 
No.  53302,  Supreme  Court  of  the  District  of 
Columbia. ) 


Sec.  1458.  [Vacancies  filled  by  promotion  according  to  seniority.]  The  next 
officer  in  rank  shall  be  promoted  to  the  place  of  a  retired  officer,  according  to 
the  established  rules  of  the  service;  and  the  same  ride  of  promotion  shall  be 
appUed  successively  to  the  vacancies  consequent  upon  the  retirement  of  an 
officer.— (3  Aug.,  1861,  c.  42,  s.  22,  v.  12,  p.  291.  21  Dec,  1862  [should  be 
"1861"],  c.  1,  s.  6,  V.  12,  p.  330.) 


Amendment  to  this  section  was  made  by  act  of 
August  29,  1916  (39  Stat.,  578),  which  pro- 
vided that  all  promotions  to  the  grades  of 
rear  admiral,  captain,  and  commander,  in 
the  line  of  the  Navy,  should  be  made  by 
selection  only,  from  the  next  lower  re- 
spective grade.  By  act  of  July  1,  1918  (40 
Stat,  718),  advancement  by  selection  to  the 
ranks  of  rear  admiral,  captain,  and  com- 
mander was  extended  to  the  Staff  Corps 
of  the  Navy. 

Pay  of  officers  on  promotion,  see  section  1561, 
Revised  Statutes,  and  act  of  March  4,  1913 
(37  Stat.,  892). 

Promotion  by  seniority  in  the  Army  was  pro- 
vided for  by  section  1257,  Revised  Stat- 


utes, and  act  of  October  1,  1890,  section  3 
(26  Stat.,  562). 

Promotion  by  seniority  in  certain  Staff  Corps 
of  the  Navy  was  specifically  provided  for 
by  section  1480,  Re\'ised  Statutes,  as 
amended  by  act  of  February  27,  1877  (19 
Stat.,  244).  Advancement  by  selection  to 
certain  ranks  in  the  Staff  Corps  of  the 
Navy  was  authorized  by  act  of  July  1, 
1918  (40  Stat.,  718).  Advancement  of 
staff  officers  to  the  ranks  below  com- 
mander is  regulated  by  act  of  Aug.  29, 
1916  (39  Stat.,  576). 

Promotions  not  to  be  made  to  fill  vacancies 
occasioned  by  retirement  of  officers  who 
are  additional  numbers  in  grade.  (Sec. 
1510,  R.  S.) 


646 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1458. 


Historical  note. — By  act  of  February  28, 
1855  (10  Stat.,  616),  it  was  providecr  that 
"vacancies  created  in  the  active-service  List 
by  placing  officers  on  the  reserved  list  shall  be 
filled  by  regular  promotion  in  the  order  of  rank 
or  seniority." 

Act  of  February  21, 1861,  sections  (12  Stat., 
150),  pro\dded  for  retirement  of  medical  officers, 
and  section  4  pro\'ided  ' '  that  all  vacancies  in  the 
Medical  Corps  of  the  Na\'y  caused  by  the  fore- 
going section  shall  be  filled  in  accordance  with 
established  usage." 

Act  of  August  3,  1861,  section  22  (12  Stat., 
291):  "The  next  officer  in  rank  shall  be  promoted 
to  the  place  of  the  retired  officer  according  to 
the  established  rules  of  the  serAice.  And  the 
same  rule  of  promotion  shall  be  applied  suc- 
cessively to  the  vacancies  consequent  upon 
the  retirement  of  an  officer." 

Act  of  December  21, 1861,  section  6  (12  Stat., 
330 1:  "That  promotions  shall  be  made  in  place 
of  the  officers  retired  under  the  provisions  of 
this  bill  as  is  now  pro\dded  by  law." 

Promotion  by  seniority  in  the  Navy  was  not 
originally  established  by  Congress,  but  was 
adopted  as  a  rule  by  the  executive,  and  sub- 
sequent acts  of  Congi'ess  were  enacted  with 
reference  to  the  rule  already  existing.  This 
is  shown  by  section  1458,  Re\ised  Statutes, 
which  in  purporting  to  provide  for  promotions 
by  seniority,  makes  reference  in  that  connec- 
tion to  "the  established  rules  of  the  service." 
(File  28687^:1,  Sept.  12,  1916;  C.  M.  O.  3- 
1917,  p.  8;  Op  Atty.  Gen.,  Dec.  27,  1916,  file 
28687-4:8.) 

Constitutionality  of  legislation  requir- 
ing promotions  by  seniority. — See  note  to 
section  1480,  Revised  Statutes;  and  see  cases 
noted  under  the  Constitution,  Article  II,  section 
2,  clause  2,  "III.  Power  of  Congress,"  and 
"IV.  Statutory  requirements  and  qualifica- 
tions;" see  also  note  to  section  1372,  Revised 
Statutes,  "  Promotion  by  seniority  and  not  com- 
petitive examination." 

The  law  requiring  promotions  in  the  Army 
to  be  made  by  seniority  does  not  make  it 
obligatory  upon  the  President  to  promote  to  a 
vacancy  existing  in  the  grade  of  lieutenant 
colonel  the  senior  officer  in  the  next  lower 
grade,  if  in  his  opinion  the  record  of  the  officer 
has  been  such  as  to  indicate  that  he  is  dis- 
qualified for  promotion,  but  under  the  law  he 
can  not  be  eliminated  either  through  the 
agency  of  a  retiring  board  or  a  court-martial. 
(30  Op.  Atty.  Gen.,  177.) 

Congress  has  undoubtedly  confined  the  Presi- 
dent's discretion  in  the  matter  of  promotions  in 
the  Army,  to  the  extent  at  least  of  designating 
the  class  from  which  the  appointment  for  pro- 
motion must  be  made.  It  has  even  been 
argued  that  the  power  both  of  appointment  and 
promotion  in  the  army  is  solely  in  Congress, 
under  its  power  "  to  declare  war, "  "to  raise  and 
support  armies,"  and  "to  make  rules  for  the 
government  and  regulation  of  the  land  and 
naval  forces,"  being  withdrawn  from  the 
President's  jurisdiction  by  the  words,  "whose 
appointments  are  not  herein  otherwise  provided 
for,  "in  Article  II,  section  2,  of  the  Constitution. 
If  this  view  be  correct,  it  might  be  claimed 
with  some  force  that  the  effect  of  the  Army 
Regulations  and  acts  of  Congress  on  the  sub- 


ject of  promotion  is  to  give  the  senior  officer  a 
vested  right  to  promotion  at  the  moment  a 
vacancy  occurs,  and  to  make  confirmation 
by  the  Senate  and  appointment  by  the  Presi- 
dent unnecessary,  or  at  most  merely  formal  and 
evidential  acts  (citing  10  Op.  Atty.  Gen.,  144; 
22  Op.  Atty.  Gen.,  480).  However,  the  correct- 
ness of  this  view  can  not  be  admitted.  Promo- 
tion in  the  Army  is  in  the  last  analysis  merely 
an  appointment  to  a  higher  office  therein;  and 
this  fact  is  illustrated  and  confirmed  by  the 
long-estabhshed  practice  of  submitting  nomina- 
tions for  promotion  in  the  Army  to  the  Senate 
for  confirmation  and  of  thereafter  issuing  a  com- 
mission for  the  higher  office.  Promotion,  there- 
fore, having  regard  to  its  real  nature,  is  as  much 
or  as  little  within  the  President's  constitutional 
power  of  appointment  as  an  original  appoint- 
ment, and  is  subject,  in  so  far  as  that  matter  is 
concerned,  to  the  same  considerations.  Now, 
appointment  in  the  Army,  as  in  any  other  de- 
partment of  the  Government,  is  an  executive 
and  not  a  legislative  act;  and  the  provisions  of 
the  Constitution  are  satisfied  by  giving  Congress 
the  power  to  make  the  general  rules,  prescribing 
the  organization  and  government  of  the  Army, 
leaving  to  the  President,  with  the  advice  and 
consent  of  the  Senate,  the  designation  of  the 
particular  individuals  who  are  to  fill  the  offices 
created  by  Congress  therein.  Congress  may 
point  out  the  general  class  of  individuals  from 
which  an  appointment  must  be  made,  if  made 
at  all,  but  it  can  not  control  the  President's 
discretion  to  the  extent  of  compelling  him  to 
commission  a  designated  individual  (citing 
President  Harrison's  veto,  Feb.  26,  1891, 
Messages  of  the  Presidents,  vol.  9,  p.  138; 
Attorney  General  Brewster's  opinion  m  Fitz 
John  Porter's  Case,  18  Op.  Atty.  Gen.,_  18). 
Mandamus  would  not  lie  against  the  President 
in  such  a  case .  The  matter  is  really  concluded , 
in  so  far  as  the  Department  of  Justice  is  con- 
cerned, by  Attorney  General  Moody's  opinion 
in  25  Op.  Atty.  Gen.,  591  [noted  below],  rely- 
ing on  13  Op.  Atty.  Gen. ,  13.  It  follows,  there- 
fore, that  while  promotion  is  a  "  right ' '  inhering 
in  the  officer  next  in  line  of  promotion,  and 
practically  almost  certain  to  vest  in  him,  it  is 
yet  inchoate  in  its  nature  and  its  legal  vesting 
is  subject  to  the  fundamental  condition  of  an 
appointment  by  the  President.  (29  Op.  Atty. 
Gen.,  254,  holding  that  a  commission  cannot 
be  issued  in  the  name  of  an  officer  whose  death 
occurred  after  he  was  nominated  by  the  Presi- 
dent but  prior  to  his  confirmation  by  the  Sen- 
ate; compare  12  Op.  Atty.  Gen.,  229,  noted 
under  Constitution,  Art.  II,  sec.  2,  clause  2, 
"VI.  What  constitiites  appointment,"  hold- 
ing that  where  an  officer  died  before  accepting 
a  commission,  acceptance  is  conclusively  pre- 
sumed.) 

The  authorities  upon  this  question  establish 
the  following:  First,  that  Congress  has  not 
the  power  to  designate  an  appointee  by  name 
(citing  18  Op.  Atty.  Gen.,  18;  U.  S.  v.  Ferreira, 
13  How.,  40);  second,  that  Congress  has  not  the 
power  to  require  the  appointment  of  an  indi- 
vidual who  stands  highest  upon  a  competitive 
examination  (citing  13  Op.  Atty.  Gen.,  516); 
third,  that  Congress  can  not  require  the  Presi- 
dent to  appoint  to  a  vacancy  m  the  military 
service  the  senior  officer  in  the  next  lower 


647 


Sec.  1458. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


grade  (citing  30  Op.  Atty.  Gen.,  177).  The 
above  pr()]x»itions  all  rest  upon  the  underly- 
ing principle  that  "the  power  of  appointment 
of  odicers,  the  duty  to  appoint  whom  devolves 
directly  on  the  President  and  Senate  by  vir- 
tue of  "the  Constitution  itself,  is  one  involving 
a  di-<-retion  not  entiiely  to  he  controlled  by 
Congress.  This  power  is  from  a  source  above 
Congress,  namely,  the  Constitution,  and  can 
not  be  destroyed  hy  the  inferior  power"  (cit- 
ing 30  Op.  Atty.  Gen.,  177).  The  foregoing 
authorities,  therefore,  if  they  do  not  clearly 
define  the  respective  powers  of  Congress  and 
the  President,  at  least  leave  no  doubt  that 
Congress  has  not  the  power  to  require  the  ap- 

f)ointment  of  a  particular  individual,  either 
)y  name  or  description.  This,  of  course, 
applies  equally  to  promotions,  for  a  promotion 
is  "an  appointment  to  a  higher  office"  (citing 
30  Op.  Atty.  Gen.,  177).  (File  28687-4:4, 
Sept.  12,  1916;  C.  M.  0.  3,  1917,  p.  7.) 

\\Tiere  Congress  does  not  merely  limit  the 
President's  power  of  selection  to  a  class  of  offi- 
cers, but  proceeds  to  the  very  point  of  requir- 
ing that  a  particular  individual  be  appointed 
to  fill  a  vacancy  existing  in  a  higher  grade, 
idz,  "the  next  officer  in  rank,"  there  is  hardly 
room  for  doubt  that  such  legislation  is  neces- 
sarily an  attempted  infringement  upon  the 
constitutional  power  of  the  President,  and 
therefore  can  not  be  binding  upon  him.  (File 
28687-4:4,  Sept.  12,  1916;  C.  M.  0.  3,  1917, 
p.  8.  See  also  to  same  effect,  Op.  A-tty.  Gen., 
Dec.  27,  1916,  noted  under  sec.  1480,  R.  S.) 

Compare  17  Op.  Atty.  Gen.,  36,  noted  under 
section  1461,  Re\ised  Statutes,  with  reference 
to  the  promotion  of  retired  officers  as  their 
several  dates  upon  the  active  list  were  pro- 
moted, and  compare  cases  noted  under  section 
1372,  Revised  Statutes. 

Whether  officer  has  vested  right  to 
promotion  upon  occurrence  of  vacancy. — 
The  right  to  promotion  inhering  in  one  who  is  a 
commissioned  officer  is,  under  existing  legisla- 
tion, in  the  nature  of  a  vested  right,  subject 
nevertheless  to  being  defeated  in  accordance 
with  the  provisions  of  the  laws.  (20  Op.  Atty. 
Gen.,  433.) 

By  the  law  and  usage  of  the  service  a  line 
officer  of  the  Navy  has  as  good  a  right  to  pro- 
motion, if  found  qualified  for  it,  and  to  his 
proper  rank  in  the  grade  to  which  he  belongs,  as 
he  has  to  his  pay,  and  questions  involving  the 
right  to  rank  or  promotion  are  always  important 
because  of  the  bearing  they  have  on  the  effi- 
ciency of  the  service.  (18  Op.  Atty.  Gen., 
393.) 

_  Where  it  was  required  by  statute  that  promo- 
tions to  certain  offices  in  the  Army  be  made 
by  seniority,  the  senior  officer  was  of  right 
entitled  to  be  promoted  to  a  vacancy  occurring 
in  the  next  higher  grade  on  the  date  that  such 
vacancy  occurred.  But  his  right  can  not  be 
held  to  have  vested  and  become  complete  until 
his  actual  appointment.  The  law  did  not 
operate  of  itself  to  make  him  a  lieutenant- 
colonel  on  the  date  he  became  entitled  to  the 
advancement;  it  was  necessary  that  there 
should  be  an  exercise  of  the  appointing  power 
to  confer  the  office  upon  him,  and  until  his 
commission  was  signed  by  the  President  the 
office  did  not  vest.    A  similar  view  has  al- 


ways been  taken  by  the  Attornevs-General. 
In  13  Op.  Atty.  Gen.,  13,  it  was  held,  respect- 
ing certain  acts  and  Army  regulations  requiring 
vacancies  in  established  regiments  and  corps 
to  the  rank  of  colonel  to  be  filled  by  promotion 
according  to  seniority,  that  the  laws  and  regula- 
tions prescribed  only  the  mode  in  which  vacan- 
cies should  be  filled;  "they  do  not  confer  upon 
the  officer  next  in  the  order  of  succession  any 
right  to  the  vacant  place.  This  he  can  acquire 
only  by  virtue  of  a  new  commission."  And 
in  13  Op.  Atty.  Gen.,  44,  it  was  held  that  the 
right  to  an  office  in  the  Army  is  not  a  vested 
one  until  the  commission  is  signed  by  the 
President.     (25  Op.  Atty.  Gen.,  591.^ 

For  other  cases,  see  29  Op.  Atty.  Gen.,  254, 
noted  above,  under  "Constitutionality  of  legis- 
lation requiring  promotions  by  seniority;"  and 
17  Op.  Atty.  Gen.,  36,  noted  under  section  1461, 
Revised  Statutes. 

Promotions  required  to  be  made  from 
next  lower  grade. — The  practice  and  usage 
of  the  Navy,  prescril:)ed  and  sanctioned  by 
law,  require  that  in  the  grades  of  the  ser\-ice, 
except  in  cases  otherwise  especially  provided, 
promotions  be  made  from  the  lower  to  the  next 
higher  rank  or  grade.  (26  Op.  Atty.  Gen,, 
496.) 

The  higher  grades  on  the  active  list  were  to 
be  constantly  supplied  by  streams  of  promotion 
from  Ijelow,  the  fountain  being  at  the  lowest 
grade  of  all  and  supplied  fi-om  without.  (Thomp- 
son 1'.  U  S.,  18  Ct.  Cls.,  604,  612,  noted  more 
fully  under  sec.  1457  R.  S.,  "Restoration  of 
retired  officer  to  active  list.") 
_  By  act  of  August  29, 1916(39  Stat.,  578), promo- 
tions to  the  grades  of  rear  admiral,  captain,  and 
commander,  in  the  Line  of  the  Navy,  were  re- 
quired to  be  made  by  selection  from  the  next 
lower  respective  grade.  (Similarly  as  to  ad- 
vancement of  staff  officers  to  the  same  ranis: 
Act  July  1,  1918,  40  Stat.,  718.) 

Filling  vacancy  by  transfer  from  another 
office  of  equal  grade. — Where  there  are  two 
or  more  offices  of  the  same  grade  in  a  corps, 
each  requiring  a  separate  commission,  on  a 
vacancy  occurring  in  one  of  them  an  incumljent 
of  the  other  may  be  transferred  by  appointment 
to  said  vacancy,  without  prejudicing  the  rights 
of  the  senior  in  next  grade  below,  whose  claim 
to  promotion  would  be  fully  met  by  appoint- 
ing him  to  either.     (17  Op.  Atty.  Gen.,  465.) 

"Vacancy"  defined. — The  word  "vacancy  " 
means  a  legal  \'acancy,  that  is,  one  to  which  a 
person  coiild  be  appointed  under  existing  law, 
and  not  a  numerical  vacancy,  that  is,  an 
official  position  which  is  vacant  I)ut  which 
could  not  be  filled  at  the  time,  under  existing 
laws  and  regulations.  (23  Op.  Attv.  Gen.,  331, 
construing  act  Feb.  24,  1897,  29  Stat..  593,  re- 
lating to  the  constructive  muster  of  volunteer 
officers  into  the  Army.) 

When  law  is  changed,  whether  existing 
vacancies  should  be  filled  according  to  the 
old  law. — In  accordance  ^^'ith  the  practice 
under  which  an  "officer  is  promoted  in  due 
course  to  fill  a  vacancy,"  it  is  clear  that  for  a 
period  of  eighteen  days  the  officers  referred  to 
were  entitled  by  law  to  promotion,  without 
examination  under  the  act  of  October  1,  1890 
(26  Stat.,  562),  made  applicable  to  the  Marine 
Corps  by  act  of  July  28, 1892  (27  Stat.,  321).     No 


648 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1458. 


suggestion  is  made  that  the  failure  to  promote 
the  three  officers  in  question  occurred  from  any 
act  or  omission  of  their  own.  The  act  of  1892 
speaks  only  from  July  28,  and  creates  new  con- 
ditions as  to  promotions  thereafter  to  be  made 
in  the  Marine  Corps.  It  would  be  going  very 
far  to  say  that  Congress  intended  that  a  right  of 
promotion  earned  by  long  sev\dce  and  actually 
accrued  may,  by  force  of  this  enactment  be 
taken  away  from  the  officer  who  has  performed 
the  service.  The  executive  construction  of 
the  act  of  1890  is  of  much  weight.  Vacancies 
then  existing  in  the  Army  were  tilled  under  the 
law  as  it  existed  prior  to  October  1,  without  the 
examination  prescril^ed  by  that  act.  This  was 
a  practical  executive  construction.  "In  a 
case  of  ambiguity,  the  contemporaneous  con- 
struction, not  only  of  the  courts  but  of  the  de- 
partments, and  even  of  the  officials  whose 
duty  it  is  to  carry  the  law  into  effect,  is  uni- 
versally held  to  be  controlling,"  (citing  Schell's 
Ex.  v.Fauche,  138  U.  S.,  572).  Although  the 
practice  under  the  act  of  1890  had  not  had  suf- 
ficient time  to  ripen  into  the  principle  quoted, 
it  should  clearly  appear  that  the  executive 
action  stated  was  contrary  to  law,  to  justify  the 
overruling  of  this  departmental  decision.  It 
must  be  understood  that  the  legislation  of  1892 
was  made  by  Congress  with  a  full  knowledge  of 
the  executive  construction  which  had  been 
pre^dously  made  upon  the  act  of  1890,  and  the 
inference  is  a  necessaiy  one  that  if  this  construc- 
tion had  not  been  in  accordance  with  the  intent 
of  Congress,  the  act  of  1892  would  have  con- 
tained a  provision  requiring  a  different  execu- 
tive rule.  A  construction  which  requires  the 
three  officers  specified  to  be  examined  under 
the  provisions  of  the  act  of  July  28,  1892,  will 
disregard  rights  which  ought  to  be  treated  as 
vested  rights  of  the  officers  affected,  and  will 
run  counter  to  the  established  determination 
of  the  War  Department,  and  will  reverse  a 
decision  which  has  been  practically  acquiesced 
in  by  Congi-ess.     (20  Op.  Atty.  Gen.,  433.) 

The  act  of  August  29,  191G  (39_Stat.,  578), 
provided  that  thereafter  promotions  to  the 
upper  grades  in  the  line  of  the  Navy  should  be 
by  selection  only.  Examinations  and  promo- 
tions by  seniority  under  prior  laws,  which 
were  not  consummated  prior  to  the  act  of 
August  29,  1916,  were  of  no  legal  effect  in  view 
of  the  change  in  the  law.  (File  26260-3663:2. 
Oct.  9,  1916;  file  26260-3648:3,  Sept  22,  1916; 
file  26260-3630,  Jan.  18,  1917.) 

The  act  of  May  22,  1917,  section  20  (40  Stat., 
89),  which  provided  that  examinations  for 
staff  oflicers  should  not  be  required  except  for 
advancements  in  rank,  operates  on  and  after 
May  22,  1917,  to  exclude  statutory  examina- 
tions for  promotions  to  higher  grades  in  the 
Staff  Corps,  such  as  were  theretofore  required  by 
law.  (File  26521-203,  July  31,  1917,  citing 
and  following  file  26260-3663:2,  Oct.  9,  1916, 
noted  above.) 

Officers  of  the  Medical  Corps,  due  for  promo- 
tion to  higher  grades  from  August  29,  1916, 
and  January  10,  1917,  but  who  had  not  been 
examined  'or  such  promotions  prior  to  May  22, 
1917,  could  not  after  the  last-named  date  be  re- 
quired to  take  the  statutory  examinations  for 
promotion  in  grade  in  accordance  with  laws  in 


effect  prior  to  May  22,  1917.     (File  26521-203, 
July  31,  1917.) 

A  medical  officer  due  for  promotion  to  tht 
gi'ade  of  surgeon  from  August  29,  1916,  ex- 
amined therefor  on  March  12,  1917,  and  found 
not  professionally  qualified,  could  not  be  re- 
quired, after  May  22,  1917,  to  undergo  a  further 
statutory  examination  for  promotion  in  grade 
in  accordance  with  prior  laws,  although  the 
penalty  consequent  upon  his  professional 
failure,  namely,  loss  of  numbers  equal  to  the 
aA'erage  six  months'  rate  of  promotion  to  the 
grade  for  which  said  officer  was  examined, 
must  be  considered  as  having  been  attached 
under  laws  then  in  effect,  and  as  not  being  dis- 
turbed by  the  subsequent  change  in  the  'laws 
relating  to  promotion  in  grade  made  by  the  act 
of  May  22, 1917.     (File  26521-203,  July  31, 1917.) 

A  medical  officer  due  for  promotion  in  grade 
from  August  29,  1916,  examined  May  8,  1917, 
and  found  not  qualified  professionally,  which 
finding,  however,  had  not  been  approved  on 
May  22,  1917,  could  not  thereafter  be  required 
to  undergo  further  statutory  examination  for 
promotion  in  grade,  nor  did  any  penalty  attach 
in  his  case  in  consequence  of  the  proceedings 
already  had,  owing  to  the  fact  that  such  pro- 
ceedings were  not  completed  by  the  President's 
approval,  which  is  necessary  to  make  the  find- 
ing legally  effective.  (File  26521-203,  July 
31,  1917,  citing  Jouett  v.  U.  S.,  28  Ct.  Cls., 
257.) 

Date  of  vacancy  created  byre  tiremento — 
Vacancies  caused  by  the  retirement  of  officers 
from  active  service  do  not  begin  to  run  until 
the  day  following  the  date  their  retirement 
becomes  legally  effective.  (16  Comp.  Dec, 
682.) 

A  vacancy  in  an  office  does  not  arise  until 
the  officer  ha\dng  the  legal  title  to  it  ceases 
legally  to  hold  it..    (16  Cornp._  Dec. ,^682.) 

Officers  promoted  by  seniority,  or  receiving 
original  appomtments  to  fill  vacancies  caused 
by  retirement  of  officers  of  a  higher  grade,  are 
only  entitled  to  the  pay  of  the  higher  grade 
from  and  including  the  day  succeeding  the 
date  the  retirement  of  their  predecessors 
becomes  legally  effective.  If  officers  receiving 
original  appointments  in  the  Army  accept  the 
same  on  a  date  later  than  the  day  succeeding 
the  date  the  retirement  of  their  predecessors 
becomes  legally  effective,  they  are  entitled  to 
pay  from  the  date  of  their  acceptance  onlv. 
(16  Comp.  Dec,  682.) 

For  other  cases,  see  notes  to  sections  1444  and 
1457,  Revised  Statutes. 

Antedating  rank  on  promotion. — By  the 
settled  practice  of  the  service  promotion  to  a 
higher  grade  includes  the  right  to  the  rank  of 
that  grade  from  the  date  of  the  vacancy  filled 
by  the  promotion.  This  practice  has  the 
distinct  recognition  of  Congress.  Section  1562 
of  the  Revised  Statutes,  and  the  act  of  June  22, 
1874  (18  Stat.,  19),  not  only  recognize  the 
practice  of  making  the  rank  to  antedate  the 
time  of  appointment  to  wlrich  the  rank  belongs, 
but  extend  it  so  as  to  give  pay  from  the  time 
rank  begins.  Before  the  legislation  referred  to, 
several  of  the  Attorneys  General  had  decided 
that  it  was  competent  for  the  appointing  power 
to  give  rank  by  relation  in  making  promotions 


649 


Sec.  1458. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


(citing  4  Op.  Atty.  Gen.,  124;  8  Op.  Atty.  Gen., 
237).     (IS  Op.  Atty.  Gen.,  393.) 

Under  an  munemorial  custom,  officers  of  the 
Anny  promoted  by  seniority  are  given  rank 
from  the  date  of  the  vacancy  which  they  are 
promoted  to  fill,  and  altliough  not  specifically 
authorized  by  statute,  are  allowed  the  pay  of 
the  higher  grade  from  that  date.  (7  Comp. 
Dec,  506.) 

The  practice  of  antedating  commissions  for 
purposes  of  rank  is  an  old  one,  and  has  been 
repeatedly  recognized  and  sustained  by  the 
Attorney  General  and  the  courts.  The  sum 
total  of  the  precedents  is  that  the  antedating 
of  commissions,  both  on  original  appointment 
and  on  promotion,  is  an  established  custom  of 
which  Congress  must  be  aware;  that  so  far  as 
concerns  rank  this  practice  has  repeatedly  been 
sustained,  and  under  some  circumstances  is 
held  proper  even  for  purposes  of  pay.  (File 
26280-68,  Apr.  12,  1916.) 

In  1836  it  was  held  by  Justice  Story,  in  U.  S. 
V.  Vinton  (2  Sumn.,  299,  28  Fed.  t^s.,  382)  that 
the  President  and  Senate  had  the  right  to  ante- 
date the  brcA'et  commission  of  an  Army  officer, 
and  that  the  date  so  stated  in  the  commission 
was  binding  upon  the  com-fs  and  entitled  the 
officer  to  back  pay.  In  1842  it  was  held  by 
Attorney  General  Legare  (4  Op.  Atty.  Gen., 
123)  that  the  executive  has  the  power  to  ante- 
date the  conmiissions  of  officers  on  promotion  in 
cases  of  delav.  In  1847  Attorney  General 
Clifford  (4  Op.  Atty.  Gen.,  603,  608)  recognized 
that  "usage  has  strengthened  the  practice  of 
antedating  rank."  In  1873  it  was  held  by 
Attorney  General  Williams  (14  Op.  Atty.  Gen., 
191)  that  "where  a  fictitious  date  in  an  officer's 
commission  would  be  attended  with  prejudice 
to  other  oflicers  in  the  same  gi'ade,  it  must  be 
deemed  improper  to  thus  date  the  commission, 
unless  there  is  clear  authority  of  law  for  so 
doing;"  but  that,  while  "there  is  no  more 
authority  under  the  statutes  to  antedate  the 
commission  in  the  one  case  than  there  is  in  the 
other,"  where  no  other  officers  are  thereby 
adversely  affected,  the  antedating  of  com- 
missions is  practically  "unimportant."  (File 
26280-68,  Apr.  12,  1916.) 

By  law  persons  competent  to  contract  with 
reference  to  a  given  subject  matter  may  give 
their  contract  a  retroactive  operation,  and 
have  its  legal  effect  antecedent  to  the  time  when 
the  contract  was  actually  made;  and  so  the 
President,  for  some  piupose,  may  give  to  an 
instrument  which  he  issues  an  effect  in  law 
prior  to  the  date  of  its  execution.  Sections 
1561  and  1562,  Revised  Statutes,  provide  for 
certain  cases  wherein  the  pay  of  officers  shall 
commence  from  a  date  anterior  to  that  of  the 
commission.  The  specification  in  those  cases 
implies  the  exclusion  of  all  others.  From  the 
practice  of  the  executive  of  inserting  an  ante- 
date in  the  numerous  cases  arising  under  those 
sections  for  convenience  to  indicate  when  the 
officer's  pay  is  to  commence  or  to  be  increased 
by  law,  it  is  easy  to  see  how  it  might  be  some- 
times inserted  for  convenience  for  other  pur- 
poses, or  even  inadvertently  in  some  cases 
where  it  might  have  no  practical  application. 
Where  an  officer  was  advanced  in  rank  for  emi- 
nent and  conspicuous  conduct  in  battle,  under 
section  1506,  Re\'ised  Statutes,  and  the  date 


of  his  rank  in  his  new  commission  was,  for 
convenience,  fixed  as  a  date  between  that  of 
the  commission  of  the  highest  of  the  officers 
whom  he  was  thus  made  to  outrank  and  that 
of  the  lowest  next  above  him,  in  order  to  indi- 
cate his  ])osition  and  rank  with  reference  to  the 
other  oflicers  of  his  grade;  this  was  not  a  case 
in  which  he  was  entitled  to  pay  from  such  ante- 
cedent date  under  sections  1561  and  1562, 
Revised  Statutes.  (Young  v.  U.  S.,  19  Ct.  Cls. , 
145.) 

Officers  of  the  Revenue-Cutter  Servdce  [now 
Coast  Guard]  promoted  by  seniority  in  accord- 
ance with  the  established  rules  and  practice  of 
the  ser\ice  to  fill  certain  additional  offices 
created  by  act  of  April  16,  1908,  are  entitled  to 
the  pay  of  the  higher  grades  to  which  promoted 
from  April  16,  1908,  the  date  the  offices  were 
created,  which  is  the  date  the  vacancies  oc- 
curred.    (15  Comp.  Dec,  157.) 

That  an  appouitment  to  an  office  in  the  Army, 
when  validly  made,  may,  in  so  far  as  concerns 
rank  and  pay,  relate  back,  either  by  force  of  a 
particular  statute  or  regulation  (citiiig  sec  1562, 
R.  S.,  Howell's  Case,  25  Ct.  Cls.,  288,  7  Comp. 
Dec,  506,  15  Comp.  Dec,  157),  or  perhaps  by 
executive  act  (citing  U.  S.  v.  Vinton,  2  Sumn. 
299  [28  Fed.  Cas.  No.  16624];  3  Op.  Atty.  Gen., 
124,  but  compare  4  Op.  Atty.  Gen.,  608),  does 
not  pro^-e  that  the  office  itself  vests  at  an  earlier 
time  than  the  date  of  commission.  (29  Op. 
Atty.  Gen.,  257;  see  also,  note  to  Constitution, 
Art.  II,  sec.  2,  clause  2,  "VI.  What  constitutes 
appouitment."  Compare  18  Op.  Atty.  Gen., 
393,  noted  below,  under  "Status  of  officer  jjend- 
ing  confirmation  by  Senate  of  his  promotion.") 

The  fact  that  the  officer's  appointment  in 
this  case  conferred  rank  from  the  date  of  the 
vacancy,  and  that  he  was  allowed  pay  in  the 
higher  grade  from  the  date  of  the  vacancy  to 
the  date  of  commission  does  not  affect  the 
"view  that  until  his  commission  was  signed  by 
the  President  the  office  did  not  vest.  Rank 
and  office  are  not  identical.  The  former  is 
merely  an  incident  of  the  office,  and  is  used  as 
a  designation  or  distinction  conferred  upon  an 
officer  in  order  to  fix  his  relative  position  with 
reference  to  other  officers  or  to  determine  his 
pay  and  emoluments.  The  allowance  of  pay 
to  the  officer  in  this  case  from  the  date  of  the 
vacancy  appears  to  have  been  made  in  accord- 
ance with  an  immemorial  custom  of  the  War 
Department  which  has  been  followed  by  the 
accounting  officers,  although  it  rests  on  no 
statutory  authorization.  (25  Op.  Atty.  Gen., 
591,  citing  7  Comp.  Dec,  506,  511;  see  also 
Downes  v.  U.  S.,  52  Ct.  Cls.,  237.) 

The  act  of  August  29,  1916  (39  Stat.,  581), 
provided  for  an  increase  in  the  commissioned 
personnel  of  the  Navy,  but  required  that  pro- 
motions to  the  grades  of  commander,  captain, 
and  rear  admiral  of  the  line  should  be  made  by 
selection  only  upon  recommendation  of  a  board 
of  rear  admirals  to  be  convened  during  the 
month  of  December  of  each  year.  (39  Stat., 
578.)  Held,  that  no  officers  could  be  promoted 
to  the  grades  named  until  after  next  January 
first,  but  that  when  so  promoted  their  dates  of 
rank  in  commissions  should  be  the  dates  on 
which  the  vacancies  occurred  to  which  pro- 
moted. With  reference  to  the  additional  posi- 
tions in  said  grades  authorized  by  said  act,  the 


650 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1458. 


dates  of  rank  in  commissions  should  be  August 
29,  1916,  that  being  the  date  on  which  such 
vacancies  occurred .  As  to  one  vacancy  in  the 
grade  of  rear  admiral  which  existed  prior  to 
August  29,  1916,  the  officer  selected  therefor 
should  be  given  date  of  rank  in  commission  as 
of  the  vacancy  which  he  is  promoted  to  fill. 
(File  28687-4:1,  Sept.  16,  1916.) 

The  act  of  August  29,  1916  (39  Stat.,  609), 
created  certain  original  vacancies  in  the  grade 
of  brigadier  general  in  the  Maidne  Corps,  and 
the  question  arose  as  to  date  of  rank  to  be 
inserted  in  the  commissions  of  officers  promoted 
thereto.  Held,  that  to  give  the  officers  said 
higher  rank  from  the  date  of  the  vacancies 
which  are  filled  by  their  promotion  is  a  custom 
which  obtains  in  all  branches  of  the  ser^dce,  and 
this  custom  has  received  the  approval  of  Con- 
gress in  various  enactments,  either  expressly 
or  by  implication.  Nevertheless,  where  the 
filling  of  vacancies  is  discretionary  with  the 
President,  the  commissions  need  not  be  made 
to  date  from  the  occurrence  of  the  vacancies 
unless  the  appointing  power  so  decides.  (File 
28687-7,  Oct_.  7,  1916,  citing  file  7151-03.  The 
promotions  in  these  cases  were  dated  from 
August  29,  1916:  see  Na\^  Register,  1917,  pp. 
230,  231.) 

The  act  of  August  29,  1916  (39  Stat.,  609)  pro- 
\'ided  that  the  authorized  number  of  commis- 
sioned officers  in  the  Marine  Corps  should  be 
based  on  the  authorized  number  of  enlisted 
men,  distributed  between  the  various  ranks  in 
the  proportions  therein  prescribed ;  and  further 
provided  (39  Stat.,  612),  that  the  President 
might  increase  the  number  of  enlisted  men 
whenever,  in  his  judgment,  this  should  become 
necessary  to  place  the  country  in  a  complete 
state  of  preparedness.  By  Executive  Order  of 
March  26,  1917,  the  President  exercised  his 
power  by  authorizing  an  increase  in  the  number 
of  enlisted  men.  Further  increases  in  the 
nimaber  of  enlisted  men,  for  the  period  of  the 
war,  were  authorized  by  act  of  May  22,  1917. 
(40  Stat.,  84.)  Held,  that  vacancies  in  com- 
missioned ranks  resulting  from  the  President's 
order  increasing  the  number  of  enlisted  men, 
were  created  on  the  date  of  said  order,  and  va- 
cancies resulting  from  the  temporary  increase 
in  the  number  of  enlisted  men  authorized  by 
the  act  of  May  22,  1917,  were  created  on  the 
date  of  said  act;  held,  further,  that  the  date  of 
rank  to  be  given  officers  promoted  to  vacancies 
so  created  should  ordinarily  be  the  date  of 
vacancy  to  which  promoted.  In  no  case,  how- 
ever, should  any  officer  permanently  or  tempo- 
rarily promoted  be  given  rank  from  a  date 
earlier  than  his  date  of  rank  in  the  lower  grade. 
(File  28687-5:1,  Sept.  7,  1917.) 

For  other  cases,  see  note  to  section  1457,  Re- 
vised Statutes,  "When  retirement  or  advance- 
ment on  retired  list  takes  effect' ' ;  and  see  note 
to  section  1561,  Re^ised  Statutes. 

Status  of  oflB.cer  pending'  promotion. — 
WTiere,  upon  the  retirement  of  a  rear  admiral,  a 
commodore  next  in  line  was  nominated  to  be  a 
rear  admiral  to  fill  the  vacancy,  and  before 
action  thereon  by  the  Senate  the  said  commo- 
dore attained  the  age  of  62  years  and  was  retired 
under  section  1444,  Re^-ise"d  Statutes,  as  a  com- 
modore: Ad\dsed,  that  according  to  the  law 
and  usage  of  the  sersdce,  the  officer  was  entitled 


by  relation  to  be  a  rear  admiral  from  the  date 
when  the  vacancy  occiu-red  and  to  receive  the 
pay  of  a  rear  admiral  from  that  date;  and  if  the 
Senate  should  confirm  his  nomination  he  might 
be  commissioned  as  a  rear  admiral  and  placed 
on  the  retired  list  as  of  that  grade.  (18  Op. 
Atty.  Gen.,  393;  compare  29  Op.  Atty.  Gen., 
257,  and  25  Op.  Atty.  Gen. ,,591,  noted  above, 
under  "Antedating  rank  on  promotion.") 

WTiere  an  officer  accepts  a  recess  promotion, 
and  thereafter  becomes  eligible  for  retirement 
by  reason  of  age,  before  the  adjournment  of 
Congress  and  before  the  appointment  is  acted 
upon  by  the  Senate,  he  is  entitled  to  be  retired 
with  the  rank  of  his  new  appointment.  (29  Op . 
Atty.  Gen.,  598.) 

While,  if  an  officer  is  not  confirmed,  he  falls 
back  into  his  former  office,  until  that  event 
happens  his  actual  office  is  that  to  which  he  has 
been  appointed  by  the  President  under  his 
constitutional  power  to  fill  offices  where  vacan- 
cies exist  during  the  recess  of  Congress.  All 
such  recess  appointments,  while  they  continue 
in  force,  confer  an  absolute  title  to  the  office 
named  and  to  the  rank  thereof,  and  such  ap- 
pointments continue  until  rejected  by  the 
Senate  or  until  the  Congress  adjourns  without 
any  action  being  taken  thereon.  (29  Op.  Atty. 
Gen.,  598.) 

The  acceptance  by  an  Army  officer  of  a  recess 
appointment  is  proAUsional  only,  and  leaves  to 
the  officer  a  reversionary  right  to  his  former 
office  in  case  his  new  appointment  is  not  con- 
firmed by  the  Senate.  An  Army  officer  who 
accepts  a  recess  promotion  and  thereafter  be- 
comes eligible  for  retirement  by  reason  of  age 
before  the  adjournment  of  Congress  and  before 
the  appointment  is  acted  upon  by  the  Senate, 
is  entitled  to  the  rank  of  his  new  appointment. 
(29  Op.  Atty.  Gen.,  598.) 

Under  the  laws  reciuiring  promotion  by 
seniority  and  the  practice  of  the  Presidents 
and  the  War  Department  in  conformity  there- 
with, in  case  of  such  a  promotion  the  officer  next 
in  seniority,  if  qualified,  would  be  promoted 
to  fill  the  vacancy  thus  created,  and  then  the 
next  one,  and  so  on  down  the  line.  Then,  if 
the  vacating  of  the  office  by  the  officer  first  thus 
promoted  (recess  of  the  Senate)  be  but  provi- 
sional, and  dependent  upon  liis  confirmation, 
so  also  would  be  those  of  the  succeeding  officers. 
It  might  happen  that  the  Senate  should  adjourn 
without  confirming  the  appointment  of  an 
officer  promoted  to  a  higher  grade,  while  con- 
firming that  of  a  junior  officer  nominated  to  the 
office  which  the  senior  officer  had  held.  This, 
if  effectual,  would  put  the  officer  whose  promo- 
tion was  not  confirmed  out  of  office  and  out  of 
the  service,  despite  the  provisions  of  section 
1229,  Revised  Statutes;  but  such  a  case  can 
hardly  be  supposed;  the  injustice  of  the  case 
would  certainly  restrain  the  Senate  from  taking 
action  which  would  have  that  result.  (29  Op. 
Atty.  Gen.,  600.) 

An  officer  due  for  promotion  by  seniority  to 
the  grade  of  captain,  to  fill  a  vacancy  in  said 
grade  which  occurred  prior  to  August  29,  1916, 
was  examined  for  promotion  to  said  vacancy 
but  his  examination  was  not  finally  acted  upon 
prior  to  the  date  mentioned.  Held,  that  his 
promotion  had  not  been  consummated  on 
August  29,  1916,  and  upon  the  approval  of  the 


54G41°— 22- 


42 


651 


Sec.  1458. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


act  of  that  date  (39  Stat.,  578)  requiring  subse- 
quent promotions  to  tho  grades  of  rear  admiral, 
captain,  and  commander,  to  be  made  ])y  selec- 
tion only,  the  proc-eedings  which  had  been 
taken  in  the  case  of  this  ollicer  became  null  and 
void.    (File  2(iL'()0-36(W:2,  Oct.  9,  1916.) 

An  ollicer  became  due  for  promotion  to  the 
grade  of  rear  admiral  on  March  2(5,  1913,  was 
examined  and  found  (lualilied,  but  was  not 
commissioned  in  the  higher  gi'ade,  nor  was 
the  board's  finding  as  to  his  c[ualilication8 
approved  by  the  President.  JIdd,  that  the 
ollicer  continued  in  the  status  of  a  captain  on 
the  active  list  of  the  Navy,  and  was  therefore 
legally  aAailable  for  selection  for  compulsory 
retirement  from  the  grade  of  captain  under  the 
provisions  of  section  9  of  the  Ka^y  personnel 
art  of  March  3,  1899  (30  Stat.,  1006).  (File 
26297-14,  June  7,  1913.) 

A  second  lieutenant  in  the  Marine  Corps 
became  due  for  promotion  to  first  lieutenant 
on  May  13,  1908;  he  was  examined  for  such 
promotion  in  Ajiril,  1909,  was  found  not  quali- 
fied, and  the  linding  of  the  board  approved  on 
April  23,  1909.  In  the  meantime,  in  March, 
1909,  he  was  tried  by  general  court-martial  and 
sentenced  among  other  things  to  lose  30  num- 
bers in  his  grade,  which  sentence  was  approved 
March  30,  1909.  During  tliis  period  the  officer 
had  been  carried  in  the  Navy  Register  as  a 
first  lieutenant  "subject  to  examination  and 
confirmation,"  standing  No.  53  in  a  list  of  92. 
Hfld,  that  the  officer's  grade  at  the  time  of  the 
approval  of  his  sentence  was  that  of  second 
lieutenant  and  not  first  lieutenant,  and  that 
his  lineal  position  was  No.  1  in  the  grade  of 
second  lieutenant,  awaiting  promotion;  accord- 
ingly, held  that  the  sentence  requiring  him  to 
lose  30  numbers  in  his  grade  must  be  executed 
by  reducing  him  30  numbers  in  the  grade  of 
second  lieutenant.  (File  26260-308:D,  June  4, 
1909.) 

A  second  lieutenant  in  the  Marine  Corps, 
ha\'ing  been  nominated  by  the  President  and 
confirmed  by  the  Senate,  was  appointed  by  the 
President  a  temporary  first  lieutenant  in  the 
Marine  Corps,  on  August  14,  1917,  to  rank  from 
May  22,  1917.  His  commission  was  mailed  to 
his  commanding  officer  for  delivery  on  August 
23,  1917.  In  the  meantime,  on  August  18, 1917, 
the  officer  was  reported  to  have  committed 
certain  offenses  for  which  his  trial  by  court- 
martial  was  ordered  on  August  29,  1917,  subse- 
quent to  his  appointment  but  prior  to  his  notifi- 
cation and  accei)tance  thereof.  The  act  of 
appointment  was  comi)lete  when  the  commis- 
sion was  signed.  If  the  office  to  wliich  he  was 
appointed  was  one  from  which  he  could  not  be 
removed  by  the  President,  the  action  of  the 
Chief  Executive  in  making  the  appointment 
would  be  irrevocable.  However,  in  this  case 
the  temporary  appointment  was,  under  the 
terms  of  the  law,  revocal)le  at  the  Avill  of  the 
President,  and  accordingly,  the  commission, 
although  complete  when  signed  and  sealed, 
might  nevertheless  be  withheld  and  revoked 
by  the  Secretary  of  the  Navy,  acting  for  the 
President.  (File  26260-4837,  Sept.  13  and  15, 
1917.) 

For  other  cases,  see  note  to  Constitution, 
Article  II,  section  3. 


Death  of  officer  before  promotion  com- 
plete.— A  commission  can  not  be  issued  in  the 
name  of  an  ollicer  whose  death  occurred  after  he 
was  nominated  by  the  President  but  prior  to 
his  confirmation  by  the  Senate.  (29  Op.  Attv. 
Gen.,  254.) 

Where  a  person  is  appointed  to  office,  either 
during  a  session  or  in  a  recess  of  the  Senate, 
and  dies  before  confirmation,  his  personal 
representatives  must  be  remitted  to  Congress 
for  the  payment  of  salary  earned  by  such 
officer.  (25  Op.  Atty.  Gen!,  312;  see  sec.  1761, 
R.  S.) 

WTiere  an  officer  died  before  accepting  a  com- 
mission promoting  him  to  a  higher  grade,  his 
acceptance  will  be  conclusively  presumed. 
(12  Op.  Atty.  Gen.,  229;  see  also  Comp. 
Dec.,  Sept.  23,  1915, 175  S.  and  A.  Memo.,  3780.) 

The  President  may  send  to  the  Senate  for 
approval  of  his  action  the  names  of  officers 
on  the  retired  list  of  the  Army  nominated  by 
him  for  advancement  in  rank  on  account  of 
civil-war  ser\ice  (act  Apr.  23,  1904,  33  Stat., 
264)  after  the  adjournment  of  the  last  session 
of  Congress,  but  who  died  before  the  convening 
of  the  present  session;  and  upon  approval  by 
the  Senate,  the  personal  representatives  of  the 
deceased  officers  mil  be  entitled  to  receive  the 
advanced  pay  due  such  officers  without  fur- 
ther action  by  Congress.  Such  advancement 
in  rank  on  the  retired  list  does  not  constitute  a 
promotion  to  a  higher  office.  (25  Op.  Atty. 
Gen.,  312;  see  also  25  Op.  Atty.  Gen.,  1S5.) 

Promotion  of  ojSB.cer  accomplished  by 
confirmation  of  his  successor. — See  23 
Op.  Atty.  Gen.,  30,  noted  under  section  1363, 
Revised  Statutes,  "Effect  of  nomination  and 
confirmation  of  an  officer  for  appointment  to 
grade  already  full,"  and  see  13  Op.  Atty.  Gen., 
44,  noted  under  section  1457,  Revised  Statutes, 
"(Correction  of  erroneous  retirement." 

How  seniority  is  determined. — Promo- 
tion among  officers  in  the  line  of  the  Navy  goes 
by  seniority,  and  seniority  is  determined  by  the 
date  of  commission — that  is  to  say,  the  date 
from  which  the  commission  recites  that  the 
appointment  to  a  given  grade  begins.  (18  Op. 
Atty.  Gen.,  393;  see  also  Toulon  v.  U.  S.,  52 
Ct.  Cls.,  .333;  24  Comp.  Dec,  177;  22  Comp. 
Dec,  623;  17  Comp.  Dec,  605;  22  Comp.  Dec, 
565,  566.) 

Precedence  of  oflS.cers  promoted  by 
selection  instead  of  seniority. — The  act  of 
July  25,  1866,  section  1  (14  Stat.,  222),  enlarged 
the  number  of  line  officers  in  higher  grades  of 
the  Navy,  created  original  vacancies  in  each 
grade  above  that  of  lieutenant,  and  provided 
that  appointments  to  fill  such  vacancies  be 
made  as  follows:  "That  the  increase  in  the 
grades  authorized  by  this  act  shall  be  made 
by  selection  from  the  grade  next  below  of  offi- 
cers who  have  rendered  the  most  efficient  and 
faithful  service  during  the  recent  war,  and  who 
possess  the  highest  professional  qualifications 
and  attainments."  When  oflicers  are  pro- 
moted by  selection  they  should  be  considered 
as  having  gained  length  of  service  according  to 
their  promotion  in  determining  their  relative 
rank  ^vith  other  grades  of  the  Navy%  to  a  suffi- 
cient extent  to  place  them  above  the  officers 
over  whom  they  were  thus  advanced.     But  in 


652 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1458. 


no  case  do  the  officers  over  whom  they  are  thus 
advanced  lose  anji;hing  in  length  of  service 
which  they  had  already  rendered.  (17  Op. 
Atty.  Gen.,  56.) 

When  the  report  of  the  Board  of  Rear  Ad- 
mirals for  selection  for  promotion,  created  by 
act  of  August  29.  1916  (39  Stat.,  578),  is  ap- 
proved by  the  President,  "the  officers  rec- 
ommended therein  shall  be  deemed  eligible  for 
selection,  and  if  promoted  shall  take  rank  with 
one  another  in  accordance  with  their  seniority 
in  the  grade  from  which  promoted."  (Act 
Aug.  29,  1916,  39  Stat.,  579.) 

"Promotion"  and  "appointment"  com- 
pared.— '  'A  promotion  in  the  Army  is  an  ap- 
pointment to  a  higher  office  therein.  The  cus- 
tom, so  far  as  I  am  aware,  has  always  been  to 
nominate  the  promoted  officer  to  the  Senate 
and  subsequently  to  appoint  and  commission 
him  anew."     (.30  Op.  Atty.  Gen.,  177.) 

"Promotion  in  the  Army  is,  in  the  last 
analysis,  merely  an  appointment  to  a  higher 
office  therein;  and  this  fact  is  illustrated  and 
confirmed  by  the  long  established  practice  of 
submitting  nominations  for  promotion  in  the 
Army  to  the  Senate  for  confirmation,  and  of 
thereafter  issuing  a  commission  for  the  higher 
office.  Promotion,  therefore,  ha\'ing  regard 
to  its  real  nature,  is  as  much  or  as  little  within 
the  President's  constitutional  power  of  appoint- 
ment as  an  original  appointment,  and  is  sub- 
ject, in  so  far  as  that  matter  is  concerned,  to 
the  same  considerations."  (29  Op.  Atty.  Gen., 
254;  see  also  Op.  Atty.  Gen.,  Dec,  27,  1916, 
file  28687-4:8.) 

Promotion  is  a  mode  of  appointment,  and  it 
is  not  the  less  an  appointment  becatise  the  per- 
son promoted  has  previously  held  another  ap- 
f)ointment  in  the  serA^ice.  Wlien  a  second 
ieutenant  is  promoted  to  the  rank  of  fii'st 
lieutenant,  he  is  appointed  to  stich  rank  by  and 
with  the  advice  and  consent  of  the  Senate. 
(17  Op.  Atty.  Gen..  34.  holding  that  the  word 
"appointment"  as  tised  in  sec.  1219,  R.  S., 
"applies  to  appointments  on  promotion  as 
well  as  to  original  appointments,"  notwith- 
standing the  prior  constmction  of  the  War 
Department  to  the  contrary.  This  opinion  was 
overruled  in  17  Op.  Atty.  Gen.,  196,  noted 
below.) 

A  clear  and  well-defined  distinction  between 
appointment  and  promotion  has  existed,  and 
been  recognized  in  the  War  Department  con- 
tinuously since  the  establishment  of  the  Army. 
Appointment  is  the  selection  of  persons,  not 
now  in  the  Army,  as  officers  of  it,  or  the  designa- 
tion by  selection  of  an  officer  already  in  the 
Army  to  a  vacancy  which  is  not  required  by 
the  law  or  the  regulations  to  be  filled  by  pro- 
motion according  to  seniority.  Promotion  is 
the  advancement  of  officers  already  in  the 
Army,  according  to  seniority,  to  vacancies 
happening  in  the  different  arms  of  the  ser^•ice 
and  according  to  rules  prescribed  by  law  or 
by  regiUations  ha\ing  the  force  of  law.  (17 
Op.  Atty.  Gen.,  196;  affirmed  24  Op.  Atty. 
Gen.,  74 — holding  that  the  word  "appointment" 
in  section  1219,  R.  S.,  applies  only  to  the  origi- 
nal entry  of  the  officer  into  the  regular  service 
or  subsequent  appointment  by  selection;  but 
that  it  does  not  apply  to  promotions  by  senior- 
ity as  defined  in  the  Vegtilations  of  the  Army — 


overruling  17  Op.  Atty.  Gen.,  34,  noted  above. 
See  also  file  11130-35,  Dec.  20,  1916.) 

The  advancement  of  a  line  officer  of  the 
Marine  Oorps  to  major  and  paymaster,  and  the 
advancement  of  another  line  officer  to  major, 
adjutant  and  inspector,  were  "appointments 
by  selection  at  the  discretion  of  the  appointing 
power,  and  were  not  promotions  under  the 
statutes  regulating  such  promotions."  Their 
subsequent  advancement  to  a  higher  rank 
in  their  respective  branches  of  the  Marine  Corps 
was  a  promotion  in  the  case  of  each  officer,  and 
not  an  "appointment"  within  the  meaning  of 
section  1219,  Re^'ised  Statutes,  fixing  the  rela- 
tive rank  between  officers  "having  the  same 
grade  and  date  of  appointment  and  commis- 
sion." "  To  hold  that  promotions  are  appoint- 
ments where  the  officers  thus  promoted  are  in 
different  departments,  but  are  not  appoint- 
ments where  they  are  in  the  same  department, 
is  to  narrow  the  application  of  the  statute  by 
reading  into  its  general  provisions  a  substantial 
qualification  of  which  its  language  gives  no 
suggestion."  (24  Op.  Atty.  Gen.,  74,  affirming 
17  Op.  Atty.  Gen.,  196,  noted  above.) 

As  to  the  difference  between  promotion  and 
appointment,  in  fixing  the  relative  rank  of 
officers,  it  may  be  observed  that  what  is  tech- 
nically called  an  appointment  may  be  in  every 
practical  sense  a  promotion.  Without  vouch- 
ing for  the  strict  accuracy  or  completeness  of 
the  definitions  of  "appointment"  and  "pro- 
motion" in  17  Op.  Atty.  Gen.,  196  [quoted 
above]  it  is  apparent  that  the  advancement  of 
an  officer  to  a  higher  grade,  and  to  which  he 
could  not  then  succeed  in  due  course  by  sen- 
iority, while  called  an  appointment,  is  in  fact 
and  effect  a  promotion,  and  it  would  seem  that 
an  officer  thus  advanced  should  be  entitled  to 
whatever  benefit  attaches  to  promotion.  The 
advancement  of  a  captain  in  the  I^Iarine  Corps 
to  assistant  adjutant  and  inspector,  with  the 
rank  of  major,  by  whatever  name  it  be  tech- 
nically called,  is  in  fact  a  promotion.  (23 
Op.  Atty.  Gen.,  155.) 

"Gen.  McClernand  was  given  and  accepted 
a  recess  appointment  which  has  not  been  con- 
firmed or  acted  upon.  This,  I  assume,  was  an 
appointment  by  way  of  promotion  to  a  higher 
office."     (29  Op.  Atty.  Gen.,  598,  601.) 

It  has  been  the  rule  of  the  accounting  officers 
to  hold  that  the  appointment  of  an  officer  in 
one  branch  of  the  ser\dce  to  an  office  in  another 
branch  is  an  "original  entry  into  the  ser\dce" 
within  the  meaning  of  section  1560  of  the  Re- 
vised Statutes.  (Comp.  Dec,  May  31,  1907, 
76  S.  and  A.  Memo.,  372.) 

The  appointment  of  an  officer  from  the  office 
of  ensign  in  the  Navy  to  the  office  of  assistant 
naval  constructor,  an  office  belonging  to  another 
branch  of  the  naval  service,  clearly  was  not  a 
promotion  in  course  to  fill  a  vacancy  in  the  next 
higher  grade,  but  was  an  appointment  which 
must,  in  the  absence  of  any  special  pro\'ision  of 
statute,  be  governed  by  the  rules  which  apply 
to  appointments  to  office  generally,  with  refer- 
ence to  commencement  of  pay,  which  is  held 
to  be  the  date  of  acceptance  of  the  office.  (Comp. 
Dec,  Sept.  20,  1907,  79  S.  and  A.  Memo.,  462; 
but  see  Comp.  Dec,  Aug.  12, 1915, 174  S.  and  A. 
Memo.,  3756,  noted  below.) 


653 


Sec.  1459. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


An  ensign  in  the  line  of  the  Navy,  who  was 
appointed  as  an  assistant  naval  constructor  with 
the  rank  of  lieutenant  (junior  .^nadu)  was  not 
''advanced  in  grade  or  rank ''  within  the  mean- 
ing of  the  act  of  March  4,  1!)]3,  (37  Stat.,  892); 
but  his  appointment  as  an  assistant  naval  con- 
structor is  regarded  as  a  new  appointment.  (20 
Comp.  Dec,  18(),  Sept.  19,  1913;  but  see,  Comp. 
Dec,  Aug.  12,  1915,  174  S.and  A.Memo.,3756, 
noted  below). 

Since  the  act  of  March  3,  1915  (38  Stat.,  928, 
945),  which  provided  for  transfer  of  ensigns  to 
the  grade  of  assistant  naval  constructor,  such 
transfer  invohdng  an  advance  in  rank,  ensigns 
BO  transferred  are  advanced  in  rank  pursuant  to 
law,  and  are  entitled,  under  the  act  of  March  4, 
1913  (37  Stat.,  892),  to  the  pay  and  allowances 
of  assistant  naval  constructors  from  the  dates 
stated  in  their  commissions,  although  prior  to 
the  date  of  actual  appointment  in  the  constmc- 
tion  corps.  (Comp.  Dec,  Aug.  12,  1915,  174 
S.  and  A.  Memo.,  375().) 

The  appointment  of  a  midshipman  as  an 
assistant  civil  engineer  was  an  "original  entry 
into  the  service  "  within  the  meaning  of  section 
1560,  Revised  Statutes,  and  not  a  ''promotion 
in  course  to  fill  a  vacancy  in  the  next  higher 
grade"  within  the  meaning  of  the  act  of  June  22, 
1874  (18  Stat.,  191),  superseding  section  1561, 
Revised  Statutes.  (13  Comp.  Dec,  606,  Mar. 
12,  1907.) 

The  appointment  of  a  warrant  officer  to  be  a 
temporary  ensign  in  the  Navy,  pursuant  to  the 
act  of  May  22,  1917  (40  Stat.,  85),  was  an  ad- 
vancement in  grade  or  rank  pursuant  to  law, 
within  the  meaning  of  the  act  approved  March 
4,  1913  (37  Stat.,  892),  and  entitles  the  officer 
to  the  pay  of  the  higher  grade  or  rank  from  the 
date  stated  in  his  commission,  (24  Comp.  Dec, 
401.) 

The  temporary  appointment  of  a  pay  clerk 
as  an  assistant  paymaster  is  substantially  a 
promotion,  and  pay  under  such  appointment 
is  authorized  from  date  of  rank  and  prior  to 
date  of  approval  of  his  bond.  (25  Comp.  Dec, 
550.  Followed  and  extended,  Comp.  Dec, 
May  5.  1919,  file  26254-2795:1.) 

For  other  cases  see  note  to  section  1407, 
Revised  Statutes,  under  "Appointment  of  en- 
listed man  as  warrant  ofiicer  not  a  promotion"; 
and  note  to  section  1408,  Revised  Statutes, 
"Appointment  as  warrant  officers." 

Acceptance  of  promotion. — The  accept- 
aiKi^  (if  a  promotion  is  not  necessary  to  con- 
summate the  appointment  of  an  officer  in  the 
naA'al  service  to  a  higher  gi"ade.  The  accept- 
ance of  a  promotion  does  not,  as  the  acceptance 
of  an  original  appointment  does,  invest  an 
unofficial  person  with  official  character.  It 
exalts  his  rank  alone.  If  it  devolves  upon  him 
official  duties  which  were  inaccessible  to  him 
before,  it  was  not  from  defect  of  ofiicial  respon- 
sibility on  his  part  that  the  higher  duties  could 
not  have  been  demanded  of  him  by  the  Govern- 
ment, but  rather  because  the  Government  had 
chosen  to  vest  to  that  extent  in  his  superior 
officers  the  privilege  of  performing  such  higher 
duties.     As  a  commissioned  officer  of  the  Navy, 


he  had  already  boimd  himself  to  obey  all  law- 
ful orders  of  his  su])('ri(irs,  and  no  accession  of 
dignity  to  his  rank  could  augment  this  obliga- 
tion. The  acceptance  of  a  promotion,  then,  is 
not  the  act  of  accepting  an  office  in  the  sense 
in  which  that  jjhrase  is  used  to  denote  the  as- 
sumption of  official  responsibility.  In  so  far 
as  his  acceptance  of  the  promotion  bears  any 
analogy  to  the  acceptance  per  se  of  an  office  he 
may  be  said  to  have  accepted  all  promotions  to 
which  he  might  attain  when  he  entered  into 
the  naval  service  imder  his  first  commission. 
On  the  other  hand,  while  a  promoted  officer 
may  not,  and  in  some  situations  certainly  could 
not,  decline  the  performance  of  duties  of  cor- 
responding grade,  it  is  plain  that  he  might  de- 
cline the  rank  with  its  honors  and  emoluments. 
But  in  doing  so  it  is  clear  that  his  action  would 
in  substance  be  less  a  declination  than  a  resigna- 
tion. (12  Op.  Atty.  Gen.,  229,  holding  that 
where  an  officer  died  before  accepting  his  pro- 
motion, the  presumption  is  conclusive  in  law 
that  it  would  have  been  accepted  by  him  had 
he  lived  to  receive  it;  see  also  Comp.  Dec, 
Sept.  23,  1915,  175  S.  and  A.  Memo.,  3780.) 

Oath  of  office  on  promotion. — A  transfer, 
promotion,  or  reduction  from  one  grade  to 
another  is  an  appointment  to  that  gi'ade,  and  a 
clerk  in  an  executive  department  so  trans- 
ferred, promoted,  or  reduced  is  required  to  take 
the  oath  of  office  prescribed  in  section  1757, 
Revised  Statutes.  (8  Comp.  Dec,  521.) 
[Note:  By  act  of  May  13,  1884,  section  2  (23 
Stat.,  22),  the  oath  of  office  prescribed  by 
section  1757,  Revised  Statutes,  must  be  taken 
by  every  person  ai^pointed  to  any  office  of 
honor  or  profit  either  in  the  civil,  military,  or 
naval  service.  See  also  act  Mar.  3,  1899,  sec. 
25  (30  Stat.,  1009)]. 

A  clerk  in  an  executive  department  who  is 
appointed  to  another  position  or  to  a  clerkship 
of  another  gi-ade  must  take  the  oath  of  office 
prescribed  in  section  1757,  Re\'ised  Statutes. 
The  fact  that  these  clerks  may  have  taken  an 
oath  of  office  when  originally  appointed  does 
not  relieve  them  from  taking  a  new  oath  upon 
every  new  appointment  for  each  new  appoint- 
ment they  receive  is  to  a  new  office,  and  before 
entering  upon  that  office  they  are  required  by 
the  provisions  of  section  1757,  Revised  Stat- 
utes, and  of  Article  VI  of  the  f'onstitution  to 
take  an  oath  of  office.  It  was  held  by  the  At- 
torney General  (19  Op.  Atty.  Gen.,  221)  that  a 
person  who  was  his  own  successor  in  office  must 
take  the  oath  which  the  law  requii-es  shall  be 
taken  upon  every  newappointmentbefore  enter- 
ing upon  the  duties.  1 1  necessarily  follows  that  if 
a  person,  instead  of  being  his  o\va  successor,  is 
appointed  to  another  position  and  in  another 
place,  he  must  take  a  new  oath  of  office.  (1 
Comp.  Dec,  4.) 

The  promotion  of  an  officer  from  the  grade  of 
ensign  to  that  of  lieutenant  (junior  grade)  "was 
not  an  original  entry  into  the  service,  requiring 
a  formal  acceptance  or  oath  of  office."  (Comp. 
Dec,  Sept.  23, 1915, 175  S.  and  A.  Memo.,  3780.) 

For  other  cases,  see  note  to  section  1757, 
Re\dsed  Statutes. 


Sec.  1459.  [Retired  officers  withdrawn  from  command,  and  from  line  of 
promotion.]  Officers  on  the  retired  list  shall  be  witlidraAvn  from  command, 
excej)t  in  the  case  provided  in  sections  fourteen  hundred  and  sixty-three  and 

654 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1461. 


fourteen  hundred  and  sixty-four,  and  from  the  Une  of  promotion  on  the  active 
Hst.— (3  Aug.,  1862  [shoidd  be  "1861"],  c.  42,  s.  22,  v.  12,  p.  290;  21  Dec, 
1861,  c.  1,  ss.  3,  4,  V.  12,  p.  329.) 

destroy  the  right  to  promotion  ' '  on  the  reserved 
list."  The  line  of  promotion  referred  to  in  that 
act  is  plainly  that  which  exists  for  officers  in 
active  service,  involving  increased  rank  and 
pay.  From  this  line  retired  officers  are  very 
properly  withdrawn,  because  it  would  be  un- 
just to  the  officers  in  active  service  if  their 
right  to  promotion  should  be  obstructed  by  the 
claims  of  those  who  are  relieved  from  duty. 
But  in  its  stead  they  may  receive  promotion 
"on  the  reserved  list."  (10  Op.  Atty.  Gen., 
107;  see  notes  to  sections  1461  and  1465,  R.  S.) 

Restoration  of  officers  to  "line  of  pro- 
motion."— Under  the  act  of  March  2,  1895 
(28  Stat.,  910),  authorizing  the  President  to 
place  "on  waiting  orders  out  of  the  line  of 
promotion,  with  one-half  active-duty  pay," 
officers  of  the  Revenue-Cutter  Ser-vT.ce  [now 
Coast  Guard]  who  are  permanently  incapac- 
itated, and  to  fill  the  resulting  vacancies  by 
promotion  in  the  order  of  seniority,  held,  that 
an  officer  placed  on  "permanent  waiting  or- 
ders" is  withdrawii  from  the  line  of  promotion, 
but  may  be  restored  to  the  service  in  his  former 
rank  when  his  disability  ceases,  without  Con- 
gressional action.    (21  Op.  Atty.  Gen.,  286.) 

For  other  cases,  see  note  to  section  1465,  Re- 
vised Statutes. 

Employment  on  active  duty. — From  sec- 
tions 1459  and  1462,  Revised  Statutes,  it  ap 
pears  to  be  the  policy  of  the  law  to  prevent  the 
employment  of  officers  on  the  retired  list  of  the 
Navy  save  under  some  exceptional  circum- 
stances. (3  Comp.  Dec,  581.  For  other  cases, 
see  sec.  1462,  R.  S.) 


Active  duty  for  retired  officers. — See  note  to 

section  1462,  Revised  Statutes. 
Promotion  on  retired  list. — See  notes  to  sec- 
tions 1460  and  1461,  ReAdsed  Statutes. 
Restoration  of  retired  officers  to  active  list. — See 
section  1465,  Revised  Statutes. 
Promotion  on  retired  list. — ^The  act  of 
February  28,  1855  (10  Stat.,  616),  declared  that 
officers  placed  on  the  reserved  list  should  be 
ineligible  to  further  promotion.  But  the  third 
section  of  the  act  of  January  16,  1857,  to  amend 
the  first-named  act,  expressly  repealed  this 
provision,  and  the  fointh  section  declared  that 
reserved  officers  might  be  promoted  on  the 
reserved  list,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  but  no  such  promotion 
should  entitle  them  to  any  pay  beyond  that 
to  which  they  were  entitled  when  so  reserved, 
nor  should  they,  by  such  promotion,  take  any 
higher  rank  than  they  would  have  taken  had 
they  been  retained  in  the  active  service  of 
the  Navy.  The  twenty-second  section  of  the 
act  of  August  3,  1861,  prowling  for  the  better 
organization  of  the  military"  establishment 
enacts  that  "if  any  officer  of  the  Navy  shall 
have  become  or  shall  hereafter  become,  inca- 
pable of  performing  the  duties  of  his  office,  he 
shall  be  placed  upon  the  retu'ed  list,  and  mth- 
drawn  from  active  service  and  command,  and 
from  the  line  of  promotion,"  with  certain  pay 
and  emoluments  therein  specified,  graduated 
according  to  the  rank  of  the  different  classes  of 
officers.  The  clause  of  that  section  which  with- 
draws officers  who  may  be  placed  on  the  retired 
list  from  "the  line  of  promotion,"  does  not 


Sec.  1460.  [Promotions  to  rear-admiral  on  the   retired  list.     Superseded.} 


This  section  provided  as  follows: 

"Sec  1460.  There  may  be  allowed  upon  the 
retired  list  of  the  Navy  nine  rear-admirals  by 
promotion  on  that  list:  Provided,  That  this 
section  shall  not  prevent  the  Secretary  of  the 
Navy  from  promoting  to  the  grade  of  rear-admiral 
on  the  retired  list,  in  addition  to  the  number 
herein  provided,  those  commodores  who  have 
commanded  squadrons  by  order  of  the  Secre- 
tary of  the  Navy,  or  who  have  performed  other 
highly  meritorious  service,  [or  who,  being  at 
the  outbreak  of  the  late  war  of  the  rebellion 
citizens  of  any  State  which  engaged  in  such 
rebellion,  exhibited  marked  fidelity  to  the 
Union  in  adhering  to  the  flag  of  the  United 
States.]"— (16  July,  1862,  c  183,  s.  14,  v.  12, 
p.  585;  25  JiUy,  1866,  c  231,  s.  1,  v.  14,  p.  222. 
15  Aug.,  1876,  c.  302,  v.  19,  p.  204.) 

It  was  superseded  by  act  of  August  5, 
1882  (22  Stat.,  286),  pro^dding  that  "hereafter 
there  shall  be  no  promotion  or  increase  of  pay 
in  the  retu-ed  list  of  the  Navy  but  the  rank  and 


pay  of  officers  on  the  retired  list  shall  be  the 
same  that  they  are  when  such  officers  shall  be 
retired."  (See  17  Op.  Atty.  Gen.,  495;  also 
see  note  to  sec.  1461,  R.  S.) 

Pay  of  officers  on  retired  list  was  to  be 
based  on  pay  which  they  received  on  the  active 
list  at  the  date  of  retirement,  under  pro\'i'<ions 
of  section  1588,  Revised  Statutes.  (See  also 
sec.  1591,  R.  S.) 

Advancement  for  meritorious  service. — 
The  act  of  March  2, 1867,  section  9,  chapter  174, 
providing  "that  no  promotion  shall  be  made  to 
the  grade  of  rear-admii'al  upon  the  retired  list 
while  there  shall  be  in  that  grade  the  full  num- 
ber allowed  by  law,"  does  not  forbid  the  ad- 
vancement to  that  grade  on  the  retired  list, 
under  section  one  of  the  act  of  July  25,  1866,  of 
any  commodore  who  may  have  commanded  a 
squadron  by  order  of  the  Secretary  of  the  Navy, 
or  performed  highly  meritorious  8er->/ice.  (13 
Op.  Atty.  Gen.,  544.) 


Sec.  1461.  [Promotion  of  retired  officers  with  running-  mates  on  active  list. 
Superseded.] 


This  section  provided  as  follows: 

"Sec  1461.  Officer.s  on  the  retii-ed  list  of 
the  Navy  shall  be  entitled  to  promotion  as  their 
several  dates  upon  the  active  list  are  promoted  : 


Provided,  That  no  promotion  shall  be  made  to 
the  gi'ade  of  rpar-admiral  upon  the  retired  list 
while  there  shall  be  in  that  grade  nine  rear- 
admirals  by  promotion  on  that  list,  exclusive 


655 


Sec.  1462. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


Ill  those  80  promoted  by  reason  of  ba\ang  coni- 
nianded  squadrons  by  order  of  the  Secretary  of 
tlie  Navy,  or  of  having  performed  other  highly 
meritorious  service.  No  promotion  to  the 
grade  of  rear-admiral  on  the  retired  IL^t  while 
there  shall  be  in  that  grade  the  full  nnniber 
allowed  by  law."— (IC  Jan.,  1857,  c.  12,  8.  4, 
V.  11,  p.  154;  2  Mar.,  1867,  c.  174,  e.  9,  v.  14, 
p.  517;  30  Jan.,  1875,  c.  30,  v  18,  p.  304.) 

It  was  superseded  by  act  of  August  5, 1882 
(22  Stat.,  28(1),  quoted  in  note  to  section  14G0, 
llevL^ed  Statutes.     (26  Op.  Atty.  Gen.,  501.) 

Promotion  on  the  retired  list  under  cer- 
tain specilied  conditions  was  authorized  by  act 
of  July  1,  1918  (40  Stat.,  717).  Advancement 
to  the' pay  of  higher  ranks  was  authorized  for 
retired  warrant  officers  and  chief  warrant 
officers  by  act  of  April  10,  1918,  (40  Stat.,  516.) 
See  also  notes  to  sections  1459  and  1465,  Re- 
vised Statutes 

Pay  of  officers  on  retired  list  was  to  be 
based  on  pay  which  they  receive  on  the  active 
list  at  date  of  retirement,  imder  pro^^sion^  of 
section  1588,  Revised  Statutes.  (See  also  sec. 
1591,  R.  S.)  But  see  acts  of  April  10,  1918, 
and  July  1,  1918  (40  Stat.,  516,  717). 

Advancement  in  rank  of  retired  offi- 
cers.— See  note  to  section  1457,  Revised 
Statutes. 

Promotion  under  this  section  was  man- 
datory, and  not  subject  to  examination.— 
Section  1461,  Revised  Statutes,  gives  to  naval 
officers  on  the  retired  list  a  right  to  promotion 
on  that  list  as  their  several  dates  on  the  active 
list  are  promoted.  The  Navy  Department 
ruled  that  the  law  authorizing  such  promo- 
tions on  the  retired  list  was  not  strictly  imper- 
ative, but  left  the  matter  in  some  degree  sub- 


ject to  the  discretion  of  the  President  to  select 
such  officers  as  in  his  opinion  might  be  "en- 
titled" to  promotion  on  the  retired  li.st.  And 
although  a  few  such  officers  were  afterwards 
promoted  no  general  i)romotions  of  retired  of- 
ficers were  made.  I  n  ^•iew  of  the  fact  that  there 
are  officers  retire(l  from  active  service  who  in 
case  of  war  would  be  entirely  unfit  for  any 
duty,  this  iuterj)retatiou  seemed  to  the  Navy 
Dejjartment  to  be  justified.  However,  the 
law  makes  no  discrimination  and  authorizes 
no  examination  in  the  cases  of  retired  officers 
to  determine  their  fitness  for  ad\ancement  to 
higher  grades  than  those  in  which  they  were 
retired  for  causes  disqualifying  them  for  active 
service.  The  language  of  section  1461  is  ex- 
plicit and  distinct  in  its  character.  The  word 
"entitled,"  which  it  is  thought  may  be  con- 
strued as  giving  a  right  of  selection  to  the 
President,  will  hardly  bear  that  interpretation. 
There  is  undoubtedly  force  in  the  argument 
which  is  suggested  against  this  system  of  in- 
discriminate promotion;  but  it  is  not  a  question 
of  what  the  law  ought  to  be,  but  of  what  the 
law  is.  A  practical  effect  of  the  law  which 
would  be  imdesirable  cannot  be  allowed  to 
overcome  its  express  terms.  Such  operation 
of  the  law  presents  a  question  for  the  legisla- 
tive and  not  the  executive  branch  of  the 
Government.  (17  Op.  Atty.  Gen.,  36.  But 
see  notes  to  sec.  1458,  R.  S.,  as  to  constitution- 
ality of  legislation  requiring  promotions  by 
seniority  on  the  active  list.) 

Promotion  on  retired  list  an  exception 
to  settled  policy. — Promotion  in  the  case  of 
a  retired  officer  is  necessarily  an  exceptional  in- 
cident, due  to  the  generosity  of  the  Govern- 
ment, and  not  contemplated  by  the  system  of 
retirement.     (27  Op.  Atty.  Gen.,  214.) 


Sec.  1462.  [Active  duty  for  retired  officers.  ]  No  officer  on  the  retired  list  of 
the  Navy  shall  be  employed  on  active  duty  except  in  time  of  war. — (3  Mar., 
1873,  c.  230,  V.  17,  p.  547.) 


Active  duty  for  retired  officers  was  authorized 
by  act  of  June  7,  1900  (31  Stat.,  703),  which 
expired  by  its  terms  at  the  end  of  12  years 
from  date  of  its  enactment. 

Active  duty  for  retired  officers,  with  their  con- 
sent, was  authorized  by  act  of  August  22, 
1912  (37  Stat.,  329). 

Active  duty  for  retired  oflBcers  of  the  Navy, 
Marine  Corps,  or  Coast  Guard,  during  the 
existence  of  war  or  national  emergency, 
was  authorized  bv  act  of  July  1,  1918  (40 
Stat.,  717.) 

Army  officers  retired  for  physical  disability 
are  to  be  examined  from  time  to  time, 
and  if  found  able  to  perform  service  of 
value  to  the  Government  shall  be  assigned 
to  such  duty  as  the  Secretary  of  War  may 
approve.  (Act  Aug.  29,  1916,  39  Stat., 
629). 

Assignment  of  retired  ofiicers  to  command,  in 
time  of  war,  was  authorized  by  sections 
1463  and  1464,  Revised  Statutes. 

Detail  of  retired  officers  to  educational  institu- 
tions, was  authorized  by  section  1225,  Re- 
\ised  Statutes,  as  amended,  and  other  laws 
noted  under  that  section. 


Pay  of  retired  officers  employed  on  active  duty, 
was  fixed  by  section  1592,  Re\dsed  Stat- 
utes, by  acts  of  August  29,  1916  (39  Stat., 
581),  and  April  10,  1918  (40  Stat.,  516), 
and   also    by  the  particular  enactments, 
above  cited,  authorizing  their  employment 
on  active  duty. 
Promotion  on  retired  list  of  officers  employed 
on  active  duty  pursuant  to  act  of  July  1, 
1918  (40  Stat.,   717),   was  authorized  by 
that  act. 
Retired  enlisted  men  may  be  assigned  to  ac- 
tive duty  in  time  of  war  or  when  a  national 
emergency  exists.     (Act   Aug.    29,    1916, 
39   Stat.,   591;  see  also  act  Mar.  3,  1915, 
38  Stat.,  941.)     Promotion  of  men  so  em- 
ployed on  active  duty  is  authorized  by  act 
of  July  1,  1918  (40  Stat.,  719.) 
Historical  note. — By  act  of  March  3,  1873 
(17  Stat.,  556\  it  was  pro\'ided  "that  no  officer 
on  the  retired  list  of  the  NaA^  shall  be  em- 
ployed on  active  duty  except  in  time  of  war." 
At  the  date  of  this  enactment,  certain  retired 
officers  were  employed  on  active  duty,  and 
the  question  arose  whether  they  were  entitled 
to  be  continued  on  such  duty.     It  was  held 


656 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1462. 


by  the  Comptroller  of  the  Treasury,  March  28, 
1873  (see  ''Acts  and  Resolutions  Relating 
Chiefly  to  the  Navy  and  Na\'y  Department," 
1872-1873,  pp.  42,  43),  that  the  prohibition 
in  the  act  quoted  applied  only  to  putting 
officers  on  duty  after  the  date  of  the  act,  and 
although  it  became  immediately  effective 
upon  date  of  its  approval,  did  not  operate  to 
deprive  retired  officers  of  duty  pay  for  the 
period  that  they  were  continued  on  active  duty 
after  its  enactmentj  but  that,  "any  officer, 
however,  on  the  retired  list,  who,  at  the  date 
of  the  act,  was  on  duty  under  orders  from  the 
Navy  Department,  will  be  entitled  to  his  duty 
pay  until  relieved,  up  to  any  period  previous 
to  the  first  of  July  next." 

By  act  of  Jime  7,  1900  (31  Stat.,  703),  it  was 
provided  that  any  retired  officer  might  be  "or- 
dered" to  active  duty  "dm-ing  a  period  of 
twelve  years  from  the  passage  of  this  act." 
Upon  expiration  of  the  period  mentioned,  all 
retired  officers  on  active  duty  under  orders 
issued  during  the  said  period,  were  detached 
from  such  duty,  and  thereafter  no  retired  officers 
were  employed  on  active  duty  until  approval 
of  the  act  of  August  22,  1912  (37  Stat._,  329), 
and  in  accordance  with  the  terms  of  said  act. 
(See  records  of  Bureau  of  Navigation,  Navy 
Department,  and  Headquartei-s,  U.  S.  Marine 
Corps.) 

Employment  on  active  duty  exception 
to  general  policy.— At  the  time  of  the 
passage  of  the  act  of  June  7,  1900  [above  noted], 
section  1462,  Revised  Statutes,  prohibited  the 
employment  of  retired  officers  on  active  duty 
except  in  time  of  war.  There  is  no  other 
statute  in  effect  now  [October  13,  1908],  which 
authorizes  the  employment  of  such  officers  on 
active  duty  in  time  of  peace.  The  act  of  June 
7,  1900,  made  a  specific  exception  to  the  statute 
then  in  force,  and  provided  that  during  a 
limited  period  certain  officers  on  the  retired  list, 
viz,  those  who  might  be  selected  by  the  Secre- 
tary of  the  Navy,  might  be  ordered  to  such 
active  duty  as  they  aTe  able  to  perform.  The 
said  act  is,  therefore,  a  special  act  relating  to 
a  particular  subject,  and  makes  exception  to 
the  general  law  in  effect  at  its  passage.  (15 
Comp.  Dec,  235.) 

From  sections  1459  and  1462,  Revised  Stat- 
utes, it  appears  to  be  the  policy  of  the  law  to 
prevent  the  employment  of  officers  on  the  re- 
tired list  of  the  Navy,  save  under  some  ex- 
ceptional circumstances.     (3  Comp.  Dec,  581.) 

The  act  of  1900  making  retired  naval  officers 
subject  to  be  ordered  to  such  active  duty  as 
they  are  able  to  perform  must  be  read  in  connec- 
tion with  and  as  part  of  the  act  authorizing 
their  retirement,  and  read  in  view  of  the 
manifest  purpose  of  that  act.  So  read,  it  is 
certain  that  it  does  not  mean  that  while  a  naval 
officer  by  his  retirement  is  debarred  from 
further  promotion  and  its  better  pay,  he  still 
remains,  in  time  of  peace,  subject  to  orders  to 
the  same  permanent,  continuous  active  duty 
at  sea  and  on  shore  as  before  his  retirement. 
On  the  contrary,  it  means,  generally,  that  he  is 
relieved  and  retired  from  active  duty,  but  sub- 
ject in  times  of  need  (of  which  the  Secretary  is 
the  judge)  to  be  temporarily  ordered  to  such 
active  duty  as  he  is  able  to  perform.  But  these 
cases  are  exceptions,  arising  from  necessity, 


and  do  not  contemplate  any  general,  permanent 
or  continuous  assignment  of  a  retired  naval 
officer  to  active  duty  or  for  a  longer  period  than 
the  necessity  of  the  seindce  requires.  Taken 
Literally,  this  provision  of  the  act  of  1900  would 
authoiize  the  assignment  of  every  retired  naval 
officer  to  the  same  continuous  and  permanent 
active  service,  both  at  sea  and  on  shore,  as 
that  upon  which  he  first  entered,  while  by  his 
nominal  retirement  he  is  debarred  from  that 
promotion  and  better  pay  which,  but  for  his 
retirement,  he  might  have  earned  by  the  same 
service.  This  is  not  what  the  law  means.  (25 
Op.  Atty.  Gen.,  508;  but  see  laws  noted 
above . ) 

Examination  of  retired  oflleer  before 
employment  on  active  duty. — It  is  not  to 
be  presumed  that  the  President  will  exercise 
the  power  of  ordering  retired  officers  to  active 
duty  in  time  of  war  unless,  upon  full  examina- 
tion, he  shall  be  satisfied  that  they  are  compe- 
tent for  the  higher  grade  on  the  active  list 
which  they  have  reached  by  promotion  on  the 
retired  List.  Such  investigation  will  un- 
doubtedly be  made  in  view  of  the  fact  that  these 
promotions  on  the  retired  list  are  not  accom- 
panied with  the  careful  examinations  which 
attend  those  upon  the  active  list.  (17  Op. 
Atty.  Gen.,  36,  construing  sec.  1461,  R.  S.) 

Consent  of  Senate  required  before 
orders  to  active  duty  in  time  of  wa,r. — 
Retired  officers  can  be  ordered  to  active  duty 
in  time  of  war  only  by  the  President,  by  and 
with  the  ad\'ice  and  consent  of  the  Senate. 
(17  Op.  Atty.  Gen.,  36,  citmg  sec.  1463,  R.  S. 
But  see  laws  noted  above.) 

Retired  officer  on  active  duty  is  not  an 
officer  of  the  active  list. — It  will  be  observed 
that  retired  officers  called  upon  active  duty  do 
not  return  to  the  active  list  unless  under 
circumstances  of  a  peculiar  character.  (17 
Op.  Atty.  Gen.,  36,  citing  sec.  1465,  R.  S.) 

The  act  of  June  7,  1900,  authorizes  the  em- 
ployment of  retired  officers  on  active  duty, 
but  it  does  not  restore  them  to  the  active  list. 
(15  Comp.  Dec,  230.) 

A  retired  officer  of  the  Navy  on  active  duty 
under  the  provisions  of  the  act  of  Jime  7,  1900, 
was  held  not  on  the  active  list  of  the  Navy, 
within  the  meanin*  of  the  act  of  May  13,  1908 
(35  Stat.,  128),  which  allowed  a  gratuity  of  six 
months'  pay  to  the  widow  or  any  designated 
beneficiary  upon  the  death  of  an  officer  on  the 
active  list  of  the  Navy  in  line  of  duty;  and  the 
widow  of  a  retired  officer  of  the  Navy  dying 
while  on  such  active  duty  was  held  not  en- 
titled to  the  benefits  of  said  provision  of  the  act 
of  May  13, 1908.    (15  Comp.  Dec,  230.) 

A  retired  officer  of  the  Army  assigned  to 
active  duty  is  not  restored  to  the  active  List, 
and  where  such  an  officer  dies  on  duty  his 
burial  expenses  can  not  be  defrayed  from  an 
appropriation  for  disposition  of  the  remains  of 
officers  on  the  "active  List."  (19  Comp.  Dec, 
540.) 

When  a  retired  officer  is  assigned  to  active 
duty  and  subsequently  detached  therefrom, 
this  does  not  operate  as  a  new  retirement. 
The  retirement  of  an  officer  is  a  proceeding 
that  can  only  take  place  m  a  prescribed  man- 
ner, and  it  is  not  pretended  that  such  proceed- 
ing occurred,  with  reference  to  the  officer  in 


657 


Sec.  1462. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


this  case,  more  than  once.     (Roget  i'.  U.  S.,  148 
U.  S.,  167.) 

Retired  officer  practically  restored  to 
active  list  while  on  duty. — The  effect  of 
the  act  of  June  7,  1900,  is  ]iractically  to  restore 
retired  olficer.'',  wlieu  employed  ou  active  duty, 
to  the  active  list  for  pay  purjjoses,  and  their  pay 
is  not  affected  by  the  circumstance  of  their 
retirement  or  by  the  grade  or  rank  which  they 
may  hokl  on  tlie  retired  list.  (13  Comp.  Dec, 
241;  see  also  11  Comp.  Dec.,  37().) 

Cannot  be  ordered  to  duty  or  appointed 
to  office  limited  to  active  list. — The  act 
of  June  7,  1900  (31  Stat.,  703),  did  not  operate 
nor  was  it  intended  to  transfer  back  to  the 
acti^■e  list  any  retired  officer  when  ordered  to 
active  duty.  On  the  contrary,  he  is  still  a 
retired  officer  and  is  borne  as  such  upon  the 
retired  list,  though  temporarily  performing 
active  duty.  Hence,  if  any  law  requires  that 
a  certain  duty  be  performed,  or  a  certain  place 
be  filled,  by  an  officer  of  the  active  list,  this  pro- 
vision does  not  authorize  the  assignment  of  a 
retired  officer  thereto.  This  does  not  mean  that 
a  retired  officer  may  not,  under  this  provision, 
be  assigned  to  duties  usually  performed  by 
officers  on  the  active  list,  but  only  that  he  can 
not  be  so  assigned  where  any  law  requires  the 
duty  to  be  performed  by  an  officer  of  the  other 
class.     (25  Op.  Atty.  Gen.,  508.) 

If  the  act  of  June  7,  1900  (31  Stat.,  703), 
applies  to  retired  officers  of  the  Marme  Corps, 
nevertheless,  it  would  not  ha^'e  the  effect  of 
authorizing  a  retired  marine  officer  to  be  de- 
tailed to  active  duty  as  commandant  of  the 
Marine  Corps  when  the  law  expressly  requires 
that  the  commandant  shall  be  selected  from 
officers  on  the  active  list  of  the  Marine  Corps. 
(28  Op.  Atty.  Gen.,  486;  see  below,  "Employ- 
ment of  retired  marme  officers  on  active  duty.") 

At  the  time  the  act  of  March  3,  1883  (22  Stat, 
553),  was  enacted,  providing  for  the  detail  as 
superuitendent  of  the  State,  War,  and  Navy 
Building  of  an  officer  of  the  Engineer  Corps  of 
the  Army  or  Navy,  there  was  no  warrant  for  the 
employment  on  active  duty  of  retired  officers 
of  either  branch  of  the  service  in  time  of  peace, 
nor  does  that  act  profess  to  give  such  warrant. 
Such  officers  were  then  exempt  from  active  serv- 
ice; therefore,  this  act  would  not  refer  to  them 
nor  authorize  their  appointment.  Hence,  the 
only  conclusion  possible  is  that  this  appoint- 
ment was  intended  to  be  made  from  the  active 
list,  the  onlv  engineer  officers  who  were  then 
subject  to  that  duty.     (25  Op.  Atty.  Gen.,  508.) 

The  question  is  not  as  to  the  duties  to  which 
a  retired  officer  may  be  ordered  in  general,  but 
is  as  to  the  class  of  officers  from  which,  under 
the  act  of  1883,  the  President  must  designate 
this  supermtendent.  It  is  unimportant  that 
under  the  later  act  a  retired  officer  may  be 
ordered  to  any  active  duty,  so  long  as  the  earlier 
act  requires  this  particular  appointment  to  be 
made  from  the  other  class.  This  act  of  1883 
means  today  just  what  it  meant  when  enacted. 
The  fact  that  the  later  law  has  made  retired 
officers  generally  subject  to  be  ordered  to  any 
active  duty,  has  not  amended  or  changed  the 
previous  law  in  this  case.  (25  Op.  Atty.  Gen., 
508.) 

Again,  the  permanent  designation  of  this 
superintendent  is  an  imperative  order  to  con- 


tinuous duty,  and  this  is  quite  incomjjatible 
with  the  selection  of  a  retired  officer,  who  is 
generally  exempt  from  such  orders.  It  can  not 
be  held  that  Ihi.sactauthorizcd  an  appointment, 
which  is  an  ortler  from  which  such  officers  were 
exempt.  It  is  easy  to  see  here  that  the  fact 
that  the  duties  imposed  upon  this  superintend- 
ent requhe  for  then  performance  an  olficer  fully 
qualified  for  active  duty  is  a  sufficient  reason 
why  this  appointment  was  required  to  l)e  made 
from  the  active  list,  and  not  from  those  who 
have  already  passed  the  period  of  their  full 
usefulness,  and  have  on  that  account  been 
retired  from  active  serA-ice.  (25  Op.  Atty. 
Gen.,  508.) 

For  other  cases,  see  notes  to  section  421, 
Revised  Statutes,  "I.  Appointment  of  Chiefs 
of  Bureaus,  "  and  section  1225,  Revised  Statutes. 

Requiring  retired  officer  to  prepare  affi- 
davit is  an  employment  on  active  duty. — 
The  act  of  June  7,  1900  (31  Stat.,  703),  contains 
no  specification  as  to  the  character  of  the  duties 
to  which  a  retired  officer  may  be  ordered,  except 
"such  as  he  is  able  to  perform,  "  and  there  is  no 
limit  as  to  the  time  he  may  be  employed,  except 
the  life  of  the  act,  so  that  he  may  be  employed 
in  the  discretion  of  the  Secretary  of  the  Navy 
as  well  for  one  day  as  for  any  longer  period,  and 
at  his  home  as  well  as  any  other  place.  Held, 
that  a  letter  from  the  Secretary  of  the  Navy, 
addressed  to  a  retired  officer  at  his  home,  en- 
closing a  large  batch  of  papers  with  the  follow- 
ing statement:  "It  is  desired  that  you  will, 
as  soon  as  practicable,  prepare  and  forward  to  the 
Department  for  transmission  to  the  Secretary  of 
State  your  affida\it  as  requested  by  him  in 
rebuttal  of  the  German  case,  "  and  not  stating 
that  "this  employment  on  shore  duty  is  re- 
quired by  the  public  interest, "  employed  the 
officer  on  active  duty  Avithin  the  meaning  of  the 
act  of  June  7,  1900,  and  entitled  him  to  active- 
duty  pay.     (10  Comp.  Dec,  467.) 

Attending  court-martial  as  witness  or 
accused. — The  duty  of  attending  as  a  witness 
before  a  general  coint-martial  is  not  one  of  the 
duties  to  which  a  retired  Army  officer  may  be 
assigned  by  the  Secretary  of  War  in  time  of 
peace.  But  a  retired  officer,  under  section 
1256,  Revised  Statutc^s  [pro\-iding  that  retired 
Army  officers  shall  be  subject  to  trial  by  court- 
martial]  can  be  ordered  before  a  general  court- 
martial  for  a  breach  of  the  Articles  of  War,  and 
would  be  entitled  to  mileage  for  travel  in  obey- 
mg  such  order.  (10  Comp.  Dec,  51,  citing  7 
Comp.  Dec,  97.)  An  order  issued  in  such  a 
case,  however,  is  to  be  distmguished  from  an 
order  to  attend  such  a  court  as  a  witness.  It  is 
a  duty  enjoined  upon  him  by  statute  in  one  case 
while  in  the  other  it  is  a  duty  which  can  only  be 
requhed  of  him  by  subpoena  as  in  the  case  of 
a  civilian  witness.     (10  Comp.  Dec,  51.) 

For  other  cases,  see  note  to  section  850, 
Revised  Stattites. 

Orders  to  perform  active  duty  after 
retirement  must  be  specific. — An  order  of 
the  President  placing  an  officer  of  the  Navy 
upon  the  retired  list  on  account  of  age  changes 
the  status  of  such  officer  wherever  he  may  be 
and  whatever  duty  he  may  be  performing, 
and  thereafter  he  is  entitled  to  retired  pay 
only,  unless  such  status  is  changed  by  some 
subsequent  order  of  the  Secretary  of  the  Navy 


658 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1463. 


pursuant  to  law.  It  may  be  that  the  Secretary 
of  the  Navy,  under  the  act  of  June  7.  1900, 
might  issue  a  preliminary  order  in  terms 
assigning  an  officer  to  duty  after  retirement, 
but  such  order  should  be  certain  in  its  terms 
and  not  given  that  effect  bv  strained  construc- 
tion, (terry  2).  U.  S..  Ct.  01s..  No.  28148,  86  S. 
and  .\.  Memo.,  644;  seealso  17  Comp.  Dec,  533.) 

The  retirement  of  an  officer  for  age  thereby 
detaches  him  from  active  duty,  and  unless 
thereafter  assigned  to  active  duty  by  the  Secre- 
tary of  the  Navy  in  accordance  with  law.  he  is 
entitled  only  to  retired  pay,  notwithstanding 
that  he  was  retained  on  active  duty  by  the 
commanding  officer  of  his  vessel.  The  latter 
is  not  authorized  to  retain  in  active  service  an 
officer  who  has  been  retired  pursuant  to  section 
1444,  Revised  Statutes,  unless  it  is  done  in 
accordance  with  a  decision  of  the  Secretary  of 
the  Navy  in  a  particular  case.  It  may  be  true 
that  in  some  cases  the  acts  of  subordinate  offi- 
cials are  taken  as  the  acts  of  the  head  of  the 
department  to  which  they  belong:  where,  how- 
ever, the  statute  requires  the  exercise  of  judg- 
ment or  discretion,  as  the  act  of  June  7,  1900, 
the  officer  in  whom  such  discretion  is  vested 
must  act  for  himself,  and  he  can  not  delegate 
that  power  to  another.  (9  Comp.  Dec.  299; 
compare  9  Comp.  Dec,  20,  noted  under  sec 
1444,  R.  S.) 

An  officer,  while  under  treatment  in  hospital, 
was  placed  on  the  retu'ed  list  and  ordered  to 
proceed  at  his  convenience  to  his  home:  Hdd, 
that  an  officer  placed  on  the  retired  list  is  en- 
titled to  retii'ed  pay  only,  no  matter  what  his 
previous  status  may  have  been,  unless  placed 
on  duty  by  some  subsequent  order;  the  above 
order  did  not  have  the  effect  of  placing  the 
officer  on  duty  while  traveling  to  his  home. 
(File  26254-2,  Apr.  29.  1908.) 

Detachment  from  active  duty  without 
express   orders. — Notice   of   the   dissolution 


of  a  court-martial  on  which  a  retired  officer  of 
the  Marine  Corps  was  ordered  to  duty  as  a  mem- 
ber is  sufficient  to  terminate  his  assignment  to 
active  duty  under  that  order,  although  no  orders 
were  issued  expressly  detaching  him  from 
active  dutv.  (Comp.  Dec.  Sep't.  29,  1910. 
115  S.  and  A.  Memo.,  1578;  Gibson  v.  U.  S.,  47 
Ct.  Cls.,  554.) 

A  formal  order  detaching  or  relieving  reth-ed 
officers  from  active  duty  is  not  necessary;  when 
the  duty  to  which  the  officer  is  assigned  ends 
the  order  assigning  him  to  active  dutv  expires. 
(Gibson  r.  U.'S.,  47  Ct.  Cls.,  554.) 

Leave  of  absence  does  not  detach  from 
active  duty. — A  retired  officer  of  the  Navy 
who  is  gi-anted  a  leave  of  absence  is  not  by  such 
gi'ant  returned  to  his  former  condition  as  a 
retired  officer,  but  is  in  the  leave  status  of  an 
officer  on  the  active  list,  and  he  is  entitled  while 
on  such  lea've  to  the  pay  j^roAided  for  officers 
of  the  active  list  on  leave  of  absence.  (11 
Comp.  Dec,  376,  construing  act  of  June  7, 
1900.) 

"\Mien,  in  the  discretion  of  the  Secretary  of 
the  Navy,  the  services  of  a  retired  officer  are  no 
longer  required  on  active  duty,  his  order  will 
relegate  such  officer  to  the  retired  status,  but 
an  order  granting  leave  of  absence  for  a  specified 
time  does  not  have  that  effect.  (11  Comp. 
Dec,  376.) 

Employment  of  retired  Marine  ofa.cers 
on  active  duty. — The  assignment  to  active 
duty  of  retired  Marine  officers  is  governed  by 
statutes  relating  to  the  Navy.  Section  1622, 
Revised  Statutes,  does  not  authorize  the  assign- 
ment of  Marine  officers  to  active  duty  in  ac- 
cordance with  laws  pertaining  to  the  Army. 
(Jonas  j;.  U.  S.,  50  Ct.  Cls..  281;  file  27231^7, 
May  31.  1912;  see  also  sec  1622,  R.  S.) 

Pay  and  allowances  while  employed  on 
active  duty. — See  laws  noted  above;  and  see 
section  1592,  Revised  Statutes. 


Sec.  1463.  [Assignment  of  retired  officers  to  command  in  time  of  war.]  In 
time  of  war  the  President,  by  and  with  the  advice  and  consent  of  the  Senate, 
may  detail  officers  on  the  retired  hst  for  the  command  of  squadrons  and  single 
ships,  when  he  beUeves  that  the  good  of  the  service  requires  that  they  shall  be 
so  placed  in  command.— (21  Dec,  1861,  c.  1,  s.  .3,  v.  12,  p.  329.  3  Mar.,  1873, 
c.  230,  s.  1,  V.  17,  p.  547.) 

in  time  of  peace  from  the  grade  of  reaJ 
admiral  on  the  active  list,  but  this  shall 
not  be  held  to  amend  or  repeal  sections 
1434.  1463,  and  1464.  Re\Tsed  Statutes. 
(Act  May  22,  1917,  sec  18.  40  Stat.,  89.) 


Active  duty  in  general. — See  section  1462, 
Re\'ised'  Statutes,  and  note  thereto. 

Assignment  of  officers  on  active  list  to  command 
of  squadrons,  with  rank  and  title  of  "flag 
officer, "  was  authorized  by  section  1434, 
Revised  Statutes. 

By  act  of  March  3,  1901  (31  Stat..  1133),  it  was 
provided  that  the  President  may  formulate 
appropriate  rules  governing  assignments  to 
command  of  vessels  and  squadrons. 

Designation  of  officers  for  the  command  of  fleets 
or  subdivisions  thereof,  with  the  rank  and 
pay  of  admiral  or  vice  admiral,  shall  be 
made  in  time  of  war  from  the  grades  of  rear 
admiral  or  captain  ou  the  active  list,  and 


Powers  of  President  as  Commander  in  Chief 
can  not  be  impaired  by  Congress. — See 
note  to  Constitution,  Article  II,  section  2, 
clause  1. 

President's  power  with  reference  to  the  retired 
list  depends  upon  laws  enacted  by  Con- 
gress.— See  note  to  Constitution.  Article  II, 
section  2.  clause  1,  under  "I.  Powers  of 
Commander  in  Chief. " 


659 


Sec.  1465. 


n.  J.  REVISED  STATUTES. 


The  Navy, 


Effect   of  orders  under  tliis  section. —  officer  in  time  of  great  public  emergency.     It 

Retired  officers  can  be  ordered  to  active  duty  wall  be  observed  that  retired  officers  thus  called 

in  time  of  war  only  by  the  President,  by  and  upon  active  duty  do  not  return  to  the  active 

with  the  advice  and  conseiit  of  the  Senate.  list  unless  under  circumstances  of  a  peculiar 

The  power  of  the  President  with  the  consent  cliaracter.     (17  Op.  Atty.  Gen.,  3G,  citing  sec. 

of  the  Senate  is  in  reality.  althouii;h  not  in  form,  1-1G5.  R.  S.) 
a  power  to  give  a  new  commission  to  a  retired 

Sec.  1464.  [Commanding  officers  of  squadrons  to  have  rank  of  ''  flag-officer. "'] 
In  making  said  details  the  President  may  select  any  officer  not  below  the  grade 
of  commander  and  assign  him  to  the  command  of  a  squadron,  with  the  rank 
and  title  of  "flag-officer;"  and  any  officer  so  assigned  shall  have  the  same 
authority  and  receive  the  same  obedience  from  the  commanders  of  ships  in  his 
squath'on  holding  commissions  of  an  older  date  than  his  that  he  would  be  enti- 
tled to  receive  if  his  commission  were  the  oldest. —  (21  Dec,  1861,  c.  1,  s.  4,  v. 
12,  p.  329.) 

See  section  1434.  Revised  Statutes,  and  note 
thereto,  with  reference  to  officers  of  the 
active  list  assigned  to  command  of  squad- 
rons. 


This  section  not  amended  or  repealed  by  act  of 
May  22, 1917,  section  18  (40  Stat.,  89),  noted 
above,  under  section  1463,  Revised  Statutes. 


Sec.  1466.  [Restoration  of  retired  officers  to  active  list.]  Retired  officers 
so  detailed  for  the  command  of  squadrons  and  single  ships  may  be  restored 
to  the  active  list,  if,  upon  the  recommendation  of  the  President,  they  shall 
receive  a  vote  of  thanks  of  Congress  for  their  services  and  gallantry  in  action 
against  the  enem^',  and  not  otherwdse. —  (21  Dec,  1861,  c  1,  s.  3,  v.  12,  p. 
329.) 


Restoration   to   active   list  is   authorized    by 
special  enactment  of  Congress  in  individ- 
ual cases,  as  for  example,  act  of  August  29, 
1916  (39  Stat.,  602). 
Veto  by  President  of  bill  to  restore  retired 
officers  to  active  list. — See  note  to  Consti- 
tution, Article  I,  section  7,  clause  2. 
Vote  of  thanks,  effect  of. — See  sections  1365, 
1446,    1508-1510,    Re\-ised    Statutes,    and 
notes  thereto. 
Restoration  of  retired  oflicer  to  active 
list. — See    note    to    section     1457,     Revised 
Statutes,     "Correction     of     erroneous    retire- 
ment";  and    note    to    section    1459,  Revised 
Statutes. 

It  may  be  questioned  whether  Congress  has 
constitutional  power  to  authorize  executive 
action  which  should  result  in  setting  aside  the 
legal  effect  of  the  proceedings  of  a  naval  board 
and  in  restoring  to  the  active  list  of  the  Navy 
one  who  had  been  retired  thereunder.  The 
law  divides  the  Navy  into  two  distinct  classes, 
with  distinct  duties  and  distinct  grades  of  pay. 
The  retired  list  was  to  be  fdled  from  the  active 
list,  and  an  officer  once  placed  upon  it  was  off 
the  active  list  and  not  a  subject  of  promotion. 
The  higher  grades  on  the  active  list  were  to 
be  constantly  supplied  by  streams  of  promotion 
from  below,  the  fountain  being  at  the  lowest 
grade  of  all  and  supplied  from  without.  The 
practical  construction  put  upon  the  statute  by 
the  executive  has  been  that  officers  are  placed 
upon  each  of  these  lists  by  the  action  of  the 
President  in  conjunction  with  the  Senate,  the 
concurrence  of  the  Senate  to  the  appointment 
of  an  officer  on  the  retired  list  being  obtained 


by  its  approval  of  the  nomination  of  his  suc- 
cessor in  his  place  by  name.  It  may  be 
questioned  whether  the  Congress  could,  with- 
out abolishing  the  office,  constitutionally  re- 
move an  officer  from  an  office  into  which  he 
had  been  legally  inducted,  and  still  more 
whether  it  could  place  him  in  another  office 
without  the  constitutional  action  of  the  Presi- 
dent. These  points  not  decided.  (Thompson 
V.  U.  S.,  18  Ct.  Cls.,  604,  612.) 

An  officer  of  the  Army  who  has  been  retired 
from  active  service  in  accordance  with  law 
can  not  be  reinstated  in  liis  former  place  by  an 
order  of  the  President,  though  the  vacancy 
caused  by  his  rethement  may  not  have  been 
filled.  (13  Op.  Atty.  Gen.,  209,  citing  8  Op. 
Atty.  Gen.,  223.) 

Army  officers  who  have  been  retired  from 
active  service  bv  the  President  under  the 
twelfth  section  of  the  act  of  July  17,  1862, 
can  not  be  reinstated  on  the  active  list  except 
by  a  new  appointment  ^vith  the  advice  and 
consent  of  the  Senate,  and  where  vacancies 
on  the  active  list  exist  which  may  lawfully 
be  filled.     (13  Op.  Atty.  Gen.,  99.) 

Section  2  of  the  act  of  June  18,  1878  (20  Stat., 
165),  provided  that  the  President  may  in 
certain  cases,  where  a  prescribed  procedure 
has  not  been  followed  in  the  retirement  of  an 
officer  not  recommended  for  promotion,  "  Order 
and  direct  the  reexamination  of  the  same." 
It  was  not  intended  by  this  provision  to  restore 
the  officer  to  the  active  list  and  thereby  to 
repeal  the  laws  limiting  the  active  force  of 
the  Navy.  If  such  had  been  the  intention, 
Congi'ess  would  have  said  so.  (Thompson  v. 
U.  S.,  18  Ct.  Cls.,  604,  615.) 


660 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1465. 


The  law  which  makes  retired  officers  of  the 
Navy  ''ineligible  to  further  promotion,"  in- 
tends only  that  they  shall  cease  to  be  eligible 
to  promotion  as  a  matter  of  course  in  the 
routine  of  naval  usage,  and  according  to  rank. 
It  must  be  so,  because  their  places  have  been 
filled,  and  the  statute-aggregate  has  been  at- 
tained by  the  promotion  of  those  who  remain 
on  the  active-service  list.  It  does  not  follow 
that  they  may  not  be  promoted  to  inde- 
pendent vacancies.  No  act  of  Congress  could 
limit  to  tliat  degree  the  constitutional  power 
of  appointment.  The  true  solution  of  the 
problem  is  to  renominate  to  the  Senate,  and 
commission  anew  such  of  the  officers  of  the  re- 
served list,  if  any  there  be,  as  it  may  be  deshed 
to  restore  to  their  pre^ious  status  in  the 
Navy._    (8  Op.  Atty.  Gen.,  223,  236.) 

Retired  officers  of  the  Navy  may  legally  be 
restored  to  the  active  list  by  temporary  ap- 


pointment where  vacancies  exist  which  may 
lawfully  be  filled  by  temporary  appointment 
in  accordance  with  the  act  of  May  22,  1917 
(40  Stat.,  84).  (File  27231-103,  July  17,  1917.) 
Full  effect  may  be  given  to  section  1465, 
Revised  Statutes,  by  holding  that  it  authorizes 
the  restoration  of  retii-ed  officers  to  the  active 
list  under  the  circumstances  there  prescribed 
without  reference  to  the  condition  of  the  active 
list  at  the  time;  that  is  to  say,  whetlier  or  not 
vacancies  exist  which  might  otherwise  law- 
fully be  filled.  This  construction  is  particu- 
larly wan-anted  by  the  ruling  of  the  Attorney 
General  that  no  act  of  Congress  could  limit 
the  constitutional  power  of  appointment  to  the 
extent  of  rendering  retired  officers  ineligible 
for  appointment  to  vacancies  existing  on  the 
active  list.  (File  27231-103,  July  17,  1917, 
citing  8  Op.  Atty.  Gen..  223,  236.) 


661 


CHAPTER  FOUR. 

RANK  AND  PRECEDENCE,  PROMOTION  AND  ADVANCEMENT. 


OP   RANK   AND   PRECEDENCE. 
Sec. 
X4()G.  Relative  rank  of  Navy  and  Army  officers. 

1467.  Rank  according  to  date. 

1468.  Commanding  officers  of  vessels  and  sta- 

tions. 

1469.  Aid  or  executive  officer. 

1470.  Staff  officers,  wfien  to  communicate  di- 

rectly ^vitll  commanding  officers. 

1471.  Chiefs  of  Bureaus. 

1472.  Chief  of  Bureau,   when  below  rank  of 

commodore. 

1473.  Retired  from  position  of  chief  of  Bureau. 

1474.  Medical  Corps. 

1475.  Sui)ply  Corps. 

1476.  Engineer  Corps. 

1477.  Constructors. 

1478.  Ci\'il  engineers. 

1479.  Chaplains. 

1480.  Professors  of  mathematics.     Promotions 

in  staff  corps. 

1481.  When  retired  for  age  or  length  of  service. 

1482.  Retired  for  causes  incident  to  ser\dce. 

1483.  Graduates  of  Naval  Academy. 

1484.  Engineers  graduated  at  Naval  Academy. 

1485.  Precedence  by  length  of  service. 

1486.  Length  of  service,  how  estimated. 

1487.  Quarters. 

1488.  Military  command. 

1489.  Processions,  boards,  &c. 


1490.  Ensigns  as  steerage  officers. 

1491.  Warrant  officers. 

1492.  Coast  Guard  officers  serving  as  part  of  the 

Navy. 

OF  PROMOTION   AND   ADVANCEMENT. 

1493.  Physical  examination. 

1494.  Physical  disqualification  by  woimds. 

1495.  Examinations,  when,  and  effect  of. 

1496.  Mental,  moral,  and  professional  examina- 

tion. 

1497.  Promotion    to    rear-admiral   in    time   of 

peace. 

1498.  Examining  board. 

1499.  Powers  of. 

1500.  Officers  may  be  present  and  make  state- 

ment. 

1501.  Record. 

1502.  Re^dsion  by  the  President. 

1503.  No  officer  to  be  rejected  without  examina- 

tion. 

1504.  Report  of  recommendation. 

1505.  Failing  in  examination. 

1506.  Advancement  in  number. 

1507.  Promotion  when  grade  is  full. 

1508.  Officers  receiving  thanks  of  Congress. 

1509.  Effect  of  vote  of^thanks. 

1510.  Vacancies  occasioned  by  deaths,  &c.,  of 

officers  thanked. 


Sec.  1466.  [Relative  rank  of  Navy  and  Army  officers.]  The  relative  rank 
between  officers  of  the  Navy,  whether  on  the  active  or  retired  list,  and  officers 
of  the  Army,  shall  be  as  follows,  lineal  rank  only  being  considered  • 

The  Vice- Admiral  shall  rank  with  the  Lieutenant-General. 

Rear-admirals  with  major-generals. 

Commodores  with  brigadier-generals. 

Captains  with  colonels. 

Commanders  with  lieutenant-colonels. 

Lieutenant-commanders  with  majors. 

Lieutenants  with  captains. 

Masters  with  first  lieutenants. 

Ensigns  with  second  lieutenants. —  (16  July,  1862,  c.  183,  s.  13,  v.  12,  p.  585. 
21  Dec,  1864,  c.  6,  s.  1,  v.  13,  p.  420.  25  July,  1866,  c.  231.  s.  1,  v.  14,  p.  222. 
2  Mar.,  1867,  c.  174,  s.  1,  v.  14,  pp.  515,  516.) 


As  to  grades  of  admiral,  Aice  admiral,  and  com- 
modore, see  notes  to  section  1362,  Re\ised 
Statutes. 

As  to  change  in  designation  of  "masters"  to 
"lieutenants  (junior  grade),"  see  note  to 
section  1362,  Ile\'ised  Statutes. 

By  act  of  October  6,  1917,  section  3  (40  Stat., 
410),  the  President  was  authorized  for  the 
period  of  the  existing  emergency  only  to 
appoint  as  generals  the  Chief  of  Staff  and 


the  commander  of  the  United  States  forces 
in  France;  and  as  lieutenant  generals  each 
commander  of  an  Army  or  Army  Corps 
organized  as  authorized  by  existing  law. 
By  act  of  October  6,  1917,  sections_3  (40  Stat., 
411),  it  was  provided  that  "brigadier  gen- 
erals of  the  Army  shall  hereafter  rank  rel- 
atively with  rear  admirals  of  the  lower  half 
of  the  grade." 


662 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1466. 


Admiral  of  the  Navy  ranks  vidth  General 
in  the  Army. — This  section  provides  for  rela- 
tive rank  between  officers  of  the  Na\'y  and 
officers  of  the  Army,  from  the  \'ice  admiral,  who 
ranks  with  the  lieutenant  general  of  the  Army, 
to  ensigns,  the  lowest  commissioned  officers  of 
the  Naw,  who  rank  with  second  lieutenants  in 
the  Army;  but  no  such  relative  rank  was  pro- 
vided for  the  Admiral  of  the  Navy.  The  grade 
of  Admiral  in  the  Na\'y  is  the  gi'ade  next  above 
that  of  \'ice  admiral,  and  the  next  grade  in  the 
Army  above  that  of  lieutenant  general,  with 
which  the  grade  of  Aice  admiral  corresponds  in 
rank,  was  that  of  General  of  the  Army.  The 
latter  grade  ceased  to  exist  August  5,  1888,  by 
the  death  of  Gen.  Philip  H.  Sheridan,  the  then 
incumbent,  and  has  not  since  been  re\-ived. 
[But  see  act  of  Oct.  6,  1917,  noted  above.]  Al- 
though the  law  does  not  specify  any  grade  in 
the  Army  with  which  the  grade  of  Admiral  is 
to  be  ranked,  the  x'easonable  intent  of  section 
13  of  the  Na\"V'  personnel  act  approved  March 
3,  1899  (30  Stat., 1007),  pro\iding  that,  subject 
to  certain  exceptions,  the  commissioned  officers 
of  the  Navy  should  receiA'e  the  same  pay  and 
allowances  as  officers  of  corresponding  rank  in 
the  Army,  was  that  the  grade  of  Admiral  should 
be  regarded  as  corresponding  in  rank  with  the 
grade  of  General  as  the  latter  grade  formerly 
existed,  and  that  the  Admiral  of  the  NaAy 
should  receive  the  same  pay  and  allowances 
which  the  General  of  the  Armv  formerly  re- 
ceived.    (6  Gomp.  Dec,  868.) 

By  NaA-y  Regulations,  1913  (Art.  R  1010); 
it  was  pro^'ided  that  "Admiral  shall  rank  with 
General." 

By  a  resolution  of  the  Continental  Congress 
November  15,  1776,  it  was  pro\-ided  "That  the 
rank  of  the  naval  officers  be,  to  the  rank  of 
ofiicers  in  the  land  ser\-ice,  as  follows: 

"Admiral,  as  a  general. 

"Vice  admiral,  as  a  lieutenant  general. 

"Rear  admiral,  as  a  major  general. 

"Commodore,  as  a  brigadier  general. 

"Captain  of  a  ship  of  40  guns  and  upwards, 
as  a  colonel. 

"Captain  of  a  ship  of  20  to  40  guns,  as  a 
lieutenant  colonel. 

"Captain  of  a  ship  of  10  to  20  guns,  as  a 
major. 

"Lieutenant  in  the  Navy,  as  a  captain." 

Aid  to  Admiral  of  the  Navy  does  not 
rank  with  aid  to  General  in  the  Army. — 
A  lieutenant  (junior  grade)  in  the  Navy  serv- 
ing as  aid  to  the  Admiral  of  the  Nav>'  is  entitled 
only  to  the  pay  of  his  rank,  which  con-esponds 
to  that  of  a  first  lieutenant  in  the  Army.  The 
fact  that  by  law  (sec.  1096,  R.  S.)  aids  on  the 
staff  of  the  General  of  the  Army  were  entitled 
to  the  rank  of  colonel  of  Cavalry  "does  not  entitle 
an  officer  of  the  Navy  to  the  rank  of  captain  in 
the  Na\y,  corresponding  to  that  of  colonel  in 
the  Army,  while  serving  as  aid  to  the  Admiral 
of  the  Navy.  By  section  1096  a  lieutenant  or 
captain  selected  as  aid  by  the  General  of  the 
Army  had  conferred  uponhim  while  serving  as 
such  aid  the  rank  of  colonel  of  Cavalry,  and  by 
section  1261  he  was  entitled  to  the  pav  of  a 
colonel.  In  16  Op.  Atty.  Gen.,  551,  it  was  held 
that  the  rank  conferred  by  section  1096  entitled 
such  aids  tothe  precedence,  when  serving  upon 
courts-martial,     courts    of    inquiry,     military 


boards,  and  the  like,  to  which  the  same  rank 
would  entitle  an  officer  of  the  line  of  staff  (inde- 
pendent of  the  office  of  aid)  when  thus  serving. 
There  is  no  statute  or  regulation  which  confers 
upon  an  officer  of  the  Navy,  while  serving  as  aid 
to  the  Admiral,  any  different  rank  from  that 
which  he  held  while  not  so  serving.  To  allow 
him  the  pay  of  a  colonel  while  so  serving  would 
be  to  assiune  that  his  rank  was  changed  from 
that  of  a  lieutenant  (junior  grade)  to  that  of  a 
captain  in  the  Navy.  Accordingly,  held  that 
such  officer  can  not  be  allowed  any  pay  in 
addition  to  the  pay  of  the  office  and  rank  of 
lieutenant  (junior  grade)  which  he  held  while 
ser^ing  as  aid  to  the  Admiral.  (11  Comp.  Dec, 
733;  see  also  21  Comp.  Dec,  840,  as  to  officer 
serving  as  aid  to  a  rear  admiral  temporarily 
holding  the  rank  of  admiral  as  commander  in 
chief  of  a  fleet.) 

While  section  1094,  Re\ised  Statutes,  pro- 
\ided  that  the  Army  of  the  United  States 
should  consist,  among  other  ofhcers,  of  "one 
General,"  said  section  concluded  with  the 
following:  "Provided,  That  when  a  vacancy 
occurs  in  the  office  of  General  or  lieutenant 
general  such  office  shall  cease,  and  all  enact- 
ments creating  or  regulating  such  offices  shall , 
respectively,  be  held  to  be  repealed."  Upon 
a  vacancy  occumng  in  the  office  of  General 
under  this  pro\iso  that  office  ceased  to  exist 
and  section  1096,  Revised  Statutes,  pro\id- 
ing  for  aids  to  the  General  of  the  Army,  who 
should  have  while  so  ser\ing  the  rank  of  colonel 
of  cavalry,  Avas  therebj'  repealed.  Even 
concedins:  that  section  1096  was  re\ived  as  the 
result  of  the  act  of  June  1,  1888  (25  Stat.,  165), 
by  A-irtue  of  which  I>ieut.  Gen.  Sheridan 
was  made  for  life  the  General  of  the  Army, 
said  section  did  not  remain  in  force  after  the 
death  of  Gen.  Sheridan,  since  which  time  there 
is  no  officer  of  the  Army  to  which  pay  of  aids 
to  the  Admiral  of  the  Navy  can  be  assimilated 
under  section  13  of  the  Navv  personnel  act  of 
March  3,  1899  (30  Stat.,  1007).  (Wood  i-.  U.  S., 
224  U.  S.,  132,  aflirming  44  Ct.  Cls.,  611.) 

Grade  of  commodore  abolished  on  the 
active  list. — Section  7  of  the  Navv  personnel 
act  of  March  3,  1899  (30  Stat.,  1005),  in  effect 
abolishes  the  rank  of  commodore,  at  least  so  far 
as  respects  the  active  list  of  the  line  of  the 
NaAy,  and  lifts  those  in  that  rank  to  that  of  rear 
admiral.  Prior  to  the  act  of  1899  the  cor- 
responding ranks  of  officers  of  the  Navy  and  the 
Army  were  rear  admiral  and  major  general, 
commodore  and  brigadier  general,  captain  and 
colonel.  By  that  act  the  rank  of  commodore 
was  abolished,  although  that  of  brigadier 
general  was  undisturbed.  No  change  was 
made  in  the  relative  rank  of  captain  and  colonel 
or  of  rear  admiral  and  major  general,  but  the 
legislation  left  one  rank  in  the  Army  to  which 
there  was  no  corresponding  rank  in  the  Na\y. 
The  statute  in  effect  lifted  the  rank  in  the 
Navy,  which  was  corresponding  to  that  of 
brigadier  general  in  the  Army,  to  that  of  rear 
admiral,  corresponding  with  that  of  major 
general  in  the  Army.  The  individuals  thus 
raised  in  rank  were  not  so  raised  on  account  of 
distinguished  serAices  or  for  any  personal 
reason,  but  simply  in  consequence  of  the 
abolishing  of  the  official  rank  they  had  held. 
(Rodgers^i;.  U.  S.,  185  U.  S.,  83.) 


G63 


Sec.  1466. 


Pt.2.  REVISED  STATUTES. 


The  Navy, 


In  the  case  of  Rodgers  v.  United  States  (185 
U.  S.,  83),  it  was  stated  with  reference  to  the 
act  of  March  3,  J8!)9:  "The  statute  in  effect 
lifted  the  rank  in  the  Na\'y,  which  was  cor- 
responding: to  that  of  brigadier  general  in  the 
Army,  totliat  of  rear  admiral  and  corresponding 
with  that  of  major  treneral  in  the  Army." 
The  Supreme  Court  m  the  above  quotation 
was  speaking  of  the  acti-s-e  list  of  the  Na^^. 
(File  3980-1402,  Oct.  31,  1917.) 

The  grade  of  commodore  was  omitted  from 
the  active  list  bv  the  Na^y  personnel  act  of 
March  3,  1899,  section  7  (30  Stat.,  1005).  That 
act,  however,  while  thus  abolishing  the  grade 
of  commodore  on  the  active  list,  did  not  thereby 
affect  the  rank  of  ollicers  then  on  the  retired 
list  having  the  rank  of  commodore,  and  it  con- 
tained several  pro^isions  for  the  future  retire- 
ment of  officers  with  that  rank  under  certain 
prescribed  conditions,  \\z,  by  section  7  of  said 
act  it  was  provided  ""that  nothing  contained 
in  this  section  shall  be  construed  to  prevent 
the  retirement  of  officers  who  now  have  the 
rank  or  relati^•e  rank  of  commodore  with  the 
rank  and  pay  of  that  grade:"  by  section  8 
(30  Stat.,  1006)  it  was  provided  that  officers 
retired  on  their  own  applications  for  the  pur- 
pose of  creating  a  prescribed  minimum  of  annual 
vacancies  should  be  placed  on  the  retired  list 
with  the  rank  and  retired  pay  of  the  ''next 
higher  grade,  as  now  existing,  including  the 
grade  of  commodore;"  by  section  9  (30  Stat., 
1006),  it  was  pro\dded  tliat  officers  retired  by 
selection  for  the  purpose  of  creating  a  pre- 
scribed minimum  of  annual  vacancies  should 
be  placed  on  the  retired  list  with  the  rank  and 
retired  pay  of  the  "next  higher  grade,  in- 
cluding the  grade  of  commodore,  which  is  re- 
tained on  the  retired  list  for  this  purpose." 
None  of  these  pro\'isions  for  retirement  with 
the  rank  of  commodore  is  now  in  force.  Under 
section  1481,  Revised  Statutes,  certain  staff 
officers  are  retired  with  the  rank  of  commodore, 
this  being  the  only  case  in  which  any  officers 
are  now  placed  on  the  retired  list  with  that 
rank,  retirements  under  section  1473,  Revised 
Statutes,  being  made  in  practice  with  the 
rank  of  rear  admiral  instead  of  commodore 
as  was  pro^■ided  therein.  The  naval  appropria- 
tion act  of  May  13,  1908  (35  Stat.,  127),  which 
established  new  rates  of  pay  for  the  Na^'y, 
provided  that  "hereafter  all  commissioned 
officers  of  the  active  list  of  the  NaAy  shall  re- 
ceive the  same  pay  and  allowances  accord- 
ing to  rank  and  length  of  service,  and  the  annual 
pay  of  each  grade  shall  be  as  follows:  *  *  * 
rear  admiral,  second  nine,  or  commodore,  six 
thousand  dollars."  There  were  no  commo- 
dores on  the  actire  list  at  the  time  of  the  en- 
actment last  cited,  but  there  were  then  and  are 
now  a  number  of  officers  on  the  retired  list 
with  the  rank  of  commodore,  and,  as  above 
stated,  retirements  are  still  being  made  with 
that  rank  under  section  1481,  Revised  Statutes. 
The  rank  of  commodore  has  continued  to  be 
assimilated  with  that  of  brigadier  general  bv  the 
NaA-y  Regulations  (Art.  R  1010,  1913),  notwith- 
standing the  expression  of  the  Supreme  Court 
in  the  Rodgers  case  that  the  legislation  of  March 
3,  1899,  "left  one  rank  in  the  Army  to  which 
there  was  no  corresponding  rank  in  the  Navy." 
Inasmuch  as  section  1466  proAides  that  the 


"relative  rank  between  officers  of  the  Navy, 
whether  on  the  acti\e  or  retired  list,  and  officers 
of  the  Army,"  shall  be  as  specified  therein, 
the  NaA-y  Regulations  have  been  correct  in 
continuing  to  show  the  rank  of  commodore  as 
assimilated  with  that  of  brigadier  general 
(File  3980-1402,  Oct.  31,  1917.) 

Section  7  of  the  Navy  personnel  act  of 
March  3,  1899  (30  Stat.,  1005),  eliminated  the 
rank  or  grade  of  commodore  from  the  active 
list  of  the  Navy.     (11  Comp.  Dec,  547.) 

The  commodores  on  the  active  list  and  the 
rear  admirals  of  the  Navy  were  amalgamated 
on  account  of  international  relationships  the 
consideration  of  which  caused  the  Navy  De- 
partment to  regard  the  complicatons  confront- 
ing it  as  inimical  to  the  honor  and  dignity  of 
this  Nation  because  of  the  adverse  effect  upon 
its  high  ranking  representatives  in  their  asso- 
ciation with  foreign  officers.  (File  3980- 
1402:3,  Mar.  4,  1918.) 

T-wo  grades  of  rear  admirals  for  pay 
purposes. — Rear  admirals  were  divided  into 
two  grades  for  pay  purposes  by  section  7  of  the 
Navy  personnel  act  of  March  3,  1899  (30  Stat., 
1005),  rear  admirals  of  the  "nine  lower  num- 
bers "  being  given  the  pay  and  allowances  of 
brigadier  generals  of  the  Army,  while  rear 
admirals  of  the  upper  nine  numbers  were  not 
specifically  proAnded  for,  but  under  the  general 
proAdsions  contained  in  section  13  of  the  same 
act  they  received  the  same  pay  and  allowances 
as  officers  of  the  corresponding  rank  in  the  Army, 
viz,  major  general,  that  being  the  rank  corre- 
sponding to  the  rank  of  rear  admiral  according 
to  section  1466.  This  diA-i-sion  of  rear  admirals 
into  two  grades  for  pay  purposes  was  continued 
in  effectby  the  act  of  May  13,  1908  (35  Stat., 
127),  which  pro^nded  different  rates  of  pay  for 
"rear  admirals,  first  nine,"  and  "rear  admirals, 
second  nine";  also  by  the  act  of  August  29. 
1916  (39  Stat.,  577),  which  provided  that  "here- 
after pay  and  allowances  of  officers  in  the  upper 
half  of  the  grade  or  rank  of  rear  admiral,  includ- 
ing the  staff  corps  and  including  staff  officers 
heretofore  permanently  commissioned  with  the 
rank  of  rear  admiral,  shall  be  that  now  allowed 
by  law  for  the  first  nine  rear  admirals,  and  the 
pay  and  allowances  of  officers  in  the  lower  half 
of  the  grade  or  rank  of  rear  admiral,  including 
the  staff  corps,  shall  be  that  now  allowed  by  law 
for  the  second  nine  rear  admirals."  (File 
3980-1402,  Oct.  31,  1917.) 

The  pro\dsion  fixing  the  pay  of  the  rear 
admirals  of  the  lower  half  of  that  grade  to 
correspond  Avith  the  pay  of  a  brigadier  general 
arose  from  the  fact  that  the  relative  rank  of 
officers  of  the  Army  and  NaA-y  had  been  so  ad- 
justed by  statute  as  to  rank  commodores  with 
brigadier  generals,  and  the  rank  of  commodore 
being  dropped  from  the  service  by  said  Navy 
personnel  act  of  March  3,  1899,  section  7,  the 
pay  of  a  bngadier  general  was  given  to  the  nine 
lower  numbers  of  rear  admirals,  who  would 
otherwise  have  had  the  rank  of  commodore 
with  the  corresponding  pay  of  brigadier  gen- 
erals.    (Gibson  v.  U.  S.,  194  U.  S.,  182.) 

Is  it  unreasonable  to  suppose  that  Congress 
thought  it  unwise  to  give  to  those  officers  (who 
had  neither  by  length  of  ser\ace  or  by  personal 
distinction  become  entitled  to  the  position  of 
rear  admiral  as  it  had  stood  in  the  past)  all  the 


664 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1466. 


benefits  of  such  position?  Would  it  be  un- 
natural for  Congress  to  bear  in  mind  those  who 
by  length  of  service  or  by  personal  distinction 
had  already  earned  that  position,  and  provide 
that  in  at  least  the  matter  of  pay  there  should 
be  some  recognition  of  the  fact?  Again,  is  it 
unreasonable  to  believe  that  Congress  intended 
that  those  officers  whose  past  services  placed 
them  according  to  their  pnor  relative  rank  side 
by  side  with  brigadier  generals  of  the  Army 
should  not  by  a  mere  change  of  statute  be  given 
a  benefit  in  salary  which  was  not  at  the  same 
time  accorded  to  brigadier  generals  in  the 
Army?  May  not  this  explain  its  action  in  so 
dividing  the  rear  admirals  into  two  classes,  one 
composed  substantially  of  former  rear  admirals, 
equal  both  in  rank  and  pay  with  major  generals 
in  the  Army,  and  the  other  of  those  who  in  the 
past  were  only  commodores,  to  whom  was 
given  the  rank  of  rear  admirals  but  the  pay  of 
brigadier  generals  in  the  Army?  (Rodgers  v. 
U.  S.,  185  U.  S.,  83.) 

Rear  admirals  being  divided  into  two  classes 
for  the  purpose  of  pay,  and  there  being  no  ques- 
tion that  had  plaintiff  been  promoted  in  the 
active  service  from  captain  to  rear  admiral  he 
would  have  passed  into  the  lower  grade  of  rear 
admirals,  so  far  at  least  as  his  pay  was  concerned, 
and  would  have  received  so  long  as  within  that 
niunber  the  pay  of  a  brigadier  general,  not- 
withstanding that  for  all  other  purposes  he  was 
entitled  to  the  rank  and  privileges  of  a  rear 
admiral,  held  that  the  advancement  of  plaintiff 
on  the  retired  list  in  accordance  with  section  11 
of  the  Navy  personnel  act  of  March  3,  1899  (30 
Stat.,  1007),  to  receive  "the  rank  and  three- 
fourths  the  sea  pay  of  the  next  higher  grade," 
entitled  him  to  the  pay  of  the  next  higher  rank, 
and  but  for  the  difference  made  in  the  pay  of 
rear  admirals  would  entitle  him  to  three-fourths 
the  full  pay  of  that  rank,  but  taking  one  step 
upward  for  the  purpose  of  pay  he  passes  into 
and  not  over  the  next  pay  grade,  which  is  that 
of  the  nine  lower  numbers.  (Gibson  v.  U.  S., 
194  U.  S.,  182.) 

All  rear  adtairals  rank  with  raajor 
generals.^Rear  admirals  of  the  lower  half, 
except  for  purposes  of  their  own  pay  and  allow- 
ances, are  rear  admirals  with  the  relative  rank, 
under  section  1466,  Revised  Statutes,  of  major 
generals  in  the  Army;  and  their  aids  are  entitled 
under  section  1261,  Revised  Statutes,  to  the  addi- 
tional pay  provided  by  law  for  aids  to  major 
generals  in  the  Army,  and  not  merely  to  the^ddi- 
tional  pay  provided  for  aids  to  brigadier  generals 
in  the  Array.  It  will  be  noted  that  the  proviso 
to  section  7  of  the  Navy  personnel  act  of  March 
3,  1899  (30  Stat.,  1005),  does  not  specify  that  a 
rear  admiral  of  the  lower  half  shall  have  the 
relative  ran^and  pay  of  a  brigadier  general,  but 
merely  that  he  shall  receive  the  same  pay  and 
allowances.  This  proviso  does  not  affect  the 
rank  given  them.  If  Congress  had  intended 
to  assimilate  their  rank  as  well  as  pay  and 
allowances  to  that  of  a  brigadier  general  it 
might  easilv  have  said  so.  (11  Comp.  Dec, 
547.) 

It  is  established  that  while  there  are  two 
diWsions  in  the  grade  of  rear  admiral  for  pay 
purposes,  nevertheless  all  officers  in  that  grade 
for  all  other  purposes  are  entitled  to  the  same 


rank  and  privileges.  (File  3980-1402,  Oct.  31, 
1917.) 

The  rank  of  all  rear  admirals  is  assimilated 
by  section  1466  to  that  of  major  generals  in  the 
Army.     (6  Comp.  Dec,  960.) 

A  rear  admiral  whether  on  the  active  or 
retired  list  corresponds  in  rank  with  a  major 
general  in  the  Army.  Accordingly  held  that  a 
retired  officer  on  active  duty  as  aid  to  a  retired 
rear  admiral  employed  on  active  duty  is  entitled 
to  the  additional  pay  pro\'ided  by  law  for  aids 
to  major  generals  in  the  Arm  v.  (14  Comp. 
Dec,  471.) 

Temporary  assignment  to  rank  of  rear 
admiral. — The  assignment  of  a  captain  of  the 
Navy  to  duty  in  command  of  a  squadron  with 
the  rank  and  title  of  rear  admiral,  by  authority 
of  section  1434,  Revised  Statutes,  does  not  make 
him  a  rear  admiral  within  the  meaning  of  the 
act  of  May  13,  1908  (35  Stat.,  128),  providing 
additional  pay  for  aids  to  rear  admirals.  (17 
Comp.  Dec,  54;  see  also  note  to  sec.  14.34,  R.  S.) 

Relative  rank  of  brigadier  generals  and 
rear  admirals  of  the  lower  half. — The  act 
of  October  6,  1917,  section  3  (40  Stat.,  411), 
provides  that  "brigadier  generals  of  the  Army 
shall  hereafter  rank  relatively  with  rear  ad- 
mirals of  the  lower  half  of  the  grade."  This  is 
materially  different  from  stating,  conversely, 
that  "rear  admirals  of  the  lower  half  of  the 
grade  shall  hereafter  rank  relatively  with  brig- 
adier generals  of  the  Army."  If,  for  example, 
the  pay  of  rear  admirals  of  the  lower  half  had 
been  in  the  past  higher  than  that  allowed 
brigadier  generals  in  the  Army,  and  tho  act  of 
October  6,  1917,  had  provided  that  brigadier 
generals  should  thereafter  receive  the  same  pay 
as  rear  admirals  of  the  lower  half,  it  is  apparent 
that  this  would  have  resulted  in  increasing 
the  pay  of  brigadier  generals  to  that  provided 
for  rear  admirals  of  the  lower  half;  whereas,  had 
it  been  provided  iinder  the  same  circumstances 
that  rear  admirals  of  the  lower  half  should  there- 
after receive  the  same  pay  as  brigadier  generals 
of  the  Army,  this  would  have  resulted  in  reduc- 
ing the  pay  of  rear  admirals  of  the  lower  half 
to  that  fixed  for  brigadier  generals.  The  same 
distinction  exists  with  reference  to  the  rank 
of  the  officers  concerned.  In  the  past  the  rank 
of  rear  admirals  of  the  lower  half  has  been 
higher  than  that  of  brigadier  generals,  viz,  it 
has  been  the  same  in  all  respects  as  that  of  ma- 
jor generals.  Under  these  circumstances  Con- 
gress did  not  provide  that  hereafter  the  rank  of 
rear  admirals  of  the  lower  half  shall  be  the  same 
as  that  of  brigadier  generals,  which  wouid  have 
resulted  in  reducing  the  rank  previously  enjoyed 
by  such  rear  admirals,  but  on  the  contrary  it  pro- 
vided that  hereafter  the  rank  of  brigadier  gen- 
erals shall  be  the  same  as  that  of  rear  admirals  of 
the  lower  half,  thereby  elevating  the  rank  of 
brigadier  generals  while  leaA'ing  the  rank  of 
rear  admirals  of  the  lower  half  the  same  as  it 
previously  had  been.  In  other  words,  rear 
admirals  of  the  lower  half  continue  by  law  to 
rank  with  major  generals  in  the  Army,  the  only 
change  being  that  now  brigadier  generals  of 
the  Army  rank  with  rear  admirals  of  the  lower 
half.  Unless  this  were  so,  rear  admirals  of  the 
lower  half  who  prior  to  the  act  of  October  6, 
1917,  ranked  ahead  of  all  major  generals  of  a 
later  date  of  commission  would  now  be  required 


665 


Sec.  1466. 


/'/.  ?.  REVISED  STATUTES. 


The  Navy. 


to  take  rank  behind  all  major  generals,  includ- 
ing those  of  a  later  date  of  connmssion  whom 
they  had  previously  outranked.  This  would 
amount  to  nothing  more  nor  less  than  a  reduc- 
tion in  the  rank  of  rear  admirals  of  tlie  lower 
half,  and  that  without  any  corresponding  ad- 
vantage to  brigadier  generals  for  whose  benefit 
the  amenilment  of  October  (i,  1917,  was  enacted. 
(File  3980-1402,  Oct.  31,  1917.) 

Secticn  14()()  provides  that  commodores, 
whetlier  on  the  active  or  retired  list,  shall  rank 
with  l>rigadier  generals.  If  the  rank  of  luiga- 
diergenerals  is  "elevated,  as  it  has  been  by  the 
act  of  October  0,  1917,  the  necessary  conse- 
quence is  to  elevate  correspondingly  the  rank 
of  commodores,  just  as  any  increase  in  the  pay 
of  In'igadier  generals  must  have  resulted  in 
automatically  increasing  the  pay  of  commodores 
if  the  pay  of  the  latter,  instead  of  their  rank, 
had  been  assimilated  to  that  of  Ijrigadier  gen- 
erals. In  other  words,  commodores  have 
ranked  with  brigadier  generals  in  accordance 
with  explicit  statutory  enactment,  and  must 
continue  so  to  rank  unless  and  until  otherwise 
provided  by  Congress.  It  follows  that  under 
the  law  commodores  rank  with  brigadier  gen- 
erals, brigadier  generals  rank  with  rear  admirals 
of  the  lower  half,  and  rear  admirals  of  the  lower 
half  rank  with  major  generals.  Had  tliis  ]:)een 
a  question  of  pay  instead  of  rank  there  would 
be  no  difficulty  in  giAdng  the  law  full  force  and 
effect.  That  is,  had  it  been  been  pro^ided 
that  commodores  should  have  the  same  pay  as 
brigadier  generals,  brigadier  generals  the  same 
pay  as  rear  admirals  of  the  lower  half,  and  rear 
admirals  of  the  lower  half  the  same  pay  as  major 
generals,  it  is  evident  that  the  pay  of  all  four 
grades  would  have  been  identical.  However, 
in  the  matter  of  rank  insurmountable  obstacles 
exist  to  giving  effect  to  this  legislation  as  thus 
construed.  The  case  is  the  same  as  though  it 
were  stated  that  major  generals,  rear  admirals 
of  the  lower  half,  brigadier  generals,  and  com- 
modores are  all  on  precisely  the  same  footing  in 
relation  to  rank  with  its  resulting  precedence; 
and  inasmuch  as  the  precedence  of  officers  of 
the  same  or  corresponding  rank  is  determined, 
in  the  absence  of  statutory  pro\-ision  to  the 
contrary,  by  date  of  commission,  it  would  fol- 
low that  commodores  must  take  precedence 
ahead  of  all  the  others  when  the  commissions  of 
the  commodores  are  of  an  earlier  date  than  those 
of  officers  in  the  other  grades  mentioned.  From 
a  practical  point  of  view  it  would  be  an  im- 
possible situation  to  have  commodores  as  a  class 
preceding  major  generals  of  a  later  date  of  com- 
mission. If  the  law  could  be  construed  so  that 
nothing  contained  therein  should  operate  to 
give  any  officer  of  a  lower  grade  precedence  of 
an  officer  of  a  liigher  grade,  one  impossible 
situation  would  merely  be  substituted  for 
another,  as  in  that  event  we  would  have  a 
l)rigadier  general  preceding  rear  admii-als  of  a 
later  date  of  commission,  while  the  rear  ad- 
mirals in  turn  would  precede  major  generals 
of  a  later  date  of  commission,  while  the  major 
generals  in  turn  would  precede  the  brigadier 
general  because  holding  a  higher  grade.  (File 
39S0-1402,  Oct.  31,  1917.) 

The  situation  created  by  the  act  of  October  6, 
1917,  can  be  corrected  only  l)y  legislation. 
Under  the  present  law  it  is  indisputable  that 


major  generals  and  brigadier  generals  both  take 
rank  and  jirecedence  with  rear  admirals;  and 
that  commodores  take  rank  and  precedence 
with  brigadier  generals.  Major  generals  and 
brigadier  generals  must  be  treated  as  but  one 
grade  for  purposes  of  precedence  with  rear 
admirals;  while  at  the  same  time  as  l^etween 
themsehes  they  must  be  treated  as  oflicers  of 
separate  and  distinct  grades,  different  in  de- 
gree. This  creates  two  conflicting  rules  for 
determining  the  precedence  of  officers  who 
may  be  associated  together  at  the  same  time 
and  place.  Two  grades  in  the  Army  or  Marine 
Corps  can  not  be  made  ec[ual  to  one  grade  in  the 
Navy  without  at  the  same  time  making  them 
equal  to  each  other.  The  difficulty  is  more 
pronounced  in  the  Navy  than  in  the  Army, 
because  of  the  fact  that  the  Marine  Corps  is 
normally  a  part  of  the  Navy,  its  officers  serving 
halutuaily  on  courts  and  boards  with  other 
officers  in  the  naval  ser\ice.  In  other  words 
there  are  under  the  jurisdiction  of  the  Navy 
Department  officers  ha\ing  all  of  the  ranks 
involved,  namely,  rear  admiral,  major  general, 
brigadier  general,  and  commodore;  while  under 
the  War  f)epartment  the  only  gi-ades  involved 
are  major  general  and  brigadier  general;  so 
that  the  War  Department  can  never  have  juris- 
diction of  the  entire  ([uestion.  In  the  case  of 
a  commodore  being  associated  on  duty  with  a 
rear  admiral  of  the  Navy  and  a  brigadier  gen- 
eral ot  the  Marine  Corps,  it  would  follow  that 
by  date  of  commission  the  commodore  would 
most  likely  rank  ahead  of  the  brigadier  general 
who,  in  turn,  might  be  entitled  to  precedence 
ahead  of  the  rear  admiral,  whom  the  commodore 
could  not  precede.  (File  3980-1402:4,  Feb. 
19,  191S.) 

The  act  of  October  6,  1917,. can  not  be  given 
effect  fully  by  construction  not  extending  to 
executive  legislation.  Administrative  officers 
can  not  make  law  but  must  take  the  law  as  it 
stands.  If  the  law  as  made  by  Congress  is  de- 
fective either  in  what  it  contains  or  what  it 
omits,  the  remedy  can  be  furnished  only  by 
Congress.  In  the  present  case  the  legislative 
intent  is  too  plain  for  discu.ssion  that  lirigadier 
generals  should  be  elevated  in  rank  to  the  level 
of  rear  admirals  of  the  lower  half,  and  not  that 
the  latter  should  be  reduced.  This  can  not  be 
an  accomplished  fact  so  long  as  rear  admirals 
continue  by  law  to  rank  with  major  generals, 
and  commodores  continue  by  law  to  rank  with 
brigadier  generals.  If  there  were  any  warrant 
for  tlie  executive  by  regulations  to  make  com- 
modores rank  after  brigadier  generals,  instead 
of  with  brigadier  generals  as  provided  by 
statute,  and  make  rear  admirals  of  the  lovyer 
half  rank  after  major  generals  instead  of  with 
major  generals  as  provided  by  statute,  a  solu- 
tion would  thereby  be  reached;  but  where  the 
rank  of  these  oflicers  has  been  definitely  fixed 
by  explicit  legislation,  the  executive  can  no 
more  change  the  rank  to  wiiich  they  are  thus 
entitled  than  it  could  change  their  pay  as 
fixed  by  statute.  (File  3980-1402,  Oct.  31, 
1917.) 

The  War  Department  is  in  complete  agree- 
ment with  the  Secretary  of  the^  Navy  that  the 
law  upon  this  subject  (Act  of  Oct.  G,  1917) 
should  be  repealed,  and  has  accordingly  rec- 
ommended such  repeal  to  the  Senate  and  House 


666 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1466. 


mjlitarv  committees.  (File  3980-1402  :  7,  Apr. 
10, 1918.)  A  bill  for  this  purpose  (H.  R.  12512) 
was  introduced  in  the  House  of  Representa- 
tives on  June  19,  1918,  and  referred  to  the  Com- 
mittee on  Military  Affairs.  (File  3980-1402  : 
8,  Auff.  1,  1918.) 

Midshipmen  not  included  by  this  sec- 
tion.— Section  1466  provides  for  relative  rank 
between  officers  of  the  Navy  and  officers  of  the 
Army,  but  no  such  relative  rank  is  given  to  ca- 
dets (now  midshipmen).  Although  officers  of 
the  Navy,  naval  cadets  (midshipmen)  do  not 
correspond  in  rank  with  any  officer  of  the  Army, 
and  therefore  are  not  entitled  to  the  allowance 
of  mileage  for  travel  on  shore  duty  aliroad.  (7 
Comp.  Dec,  2.) 

Professors  at  Naval  Academy  do  not 
rank  with  professors  at  Military  Acad- 
emy.— A  line  officer  of  the  Navy  of  the  rank  of 
lieutenant  commander  corresponds  in  rank  to  a 
major  in  the  Army;  his  detail  to  duty  as  head 
of  the  department  of  modern  languages  of  the 
United  States  Naval  Academy  does  not  en- 
title him  to  the  rank  of  commander,  corres- 
ponding to  lieutenant  colonel  in  the  Army,  be- 
cause under  the  law  certain  professors  at  the 
Military  Academy  are  entitled  to  the  rank  and 
pay  of  lieutenant  colonel.  The  position  of  pro- 
fessor at  the  Military  Academy  is  an  office  sepa- 
rate and  distinct  fi'om  any  other  office  in  the 
Army,  the  incumbent  of  which  is  appointed  by 
the  President  and  not  detailed  from  the  officers 
of  the  Army.  There  is  no  law  entitling  a  naval 
officer,  by  virtue  of  his  assignment,  to  the  rank 
or  pay  of  a  professor  either  at  the  Naval  Acad- 
emy or  Military  Academy;  nor  any  law  pro\id- 
ing  that  an  Army  officer  may  be  detailed  to  per- 
form the  duties  of  a  professor  at  the  Military 
Academy  and  thereby  become  entitled  to  the 
rank  and  pay  of  a  professor  at  that  institution. 
(11  Comp.  Dec,  591.) 

Staff  oflScers  included  by  this  section. — ■ 
Section  1466  fixes  the  relative  rank  of  officers  of 
the  Army  and  officers  of  the  Navy.  This  sec- 
tion is  general,  with  no  exception  or  limitation, 
and  therefore  it  applies  equally  to  all  officers  of 
the  Navy  of  the  grades  there  mentioned, 
whether  of  the  line  or  staff.  That  section  con- 
tains the  clause,  "'lineal  rank  only  ))eing  con- 
sidered," but  that  simply  means  that  it  is  not 
necessary  to  specify  and  "fix  relative  staff  rank, 
since  staff  officers  in  both  services  possess  assim- 
ilated lineal  rank.     (26  Op.  Atty.  Gen.,  16.) 

As  staff  officers  are,  equally  \\-ith  those  of  the 
line,  '"officersof  the  Navy,"  as  stated  in  section 
1466,  the  provisions  of  that  section  apply  as  well 
to  them  as  to  officers  of  the  line,  and  thus  defines 
the  rank  in  both  branches  of  the  naval  service. 
And  since  the  Navy  personnel  act  has  elimi- 
nated the  word  "relative"  in  this  connection, 
this  is  their  actual  rank.  This  merely  defines 
the  rank  of  these  officers,  by  making  the  rank 
of  a  captain  the  same  as  that  of  a  colonel,  and 
so  on.  _  (26  Op.  Atty,  Gen.,  496,  499.) 

Section  1466,  Revised  Statutes,  assimilates  in 
rank  lieutenants  in  the  Navy  with  captains  in 
the  Army.  Under  the  Navy  personnel  act  of 
March  3,  1899  (30  Stat.,  1007),  and  section  1466, 
Re\"ised  Statutes,  passed  assistant  surgeons  of 
the  Navy,  as  well  as  assistant  surgeons,  rank 
with  captains  in  the  Army.  (U.  S.  v.  Faren- 
holt,  206U.  S.,  226.) 


Oflficers  of  the  Marine  Corps  and  line 
oflScers  of  the  Navy. — By  section  1603, 
Revised  Statutes,  officers  of  the  Marine  Corps 
are  in  relation  to  rank  on  the  same  footing  as 
officers  of  similar  grades  in  the  Army.  Accord- 
ingly, they  take  precedence  with  line  officers 
in  the  Navy  according  to  grade;  and  if  of  similar 
grade,  then  according  to  date  of  commission. 
(■2r>  Op.  Atty.  Gen.,  517.) 

Officers  of  the  Marine  Corps  and  staff 
officers  of  the  Navy. — Staff  officers  of  the 
Navy  take  precedence  with  officers  of  the  Army 
of  corresponding  rank  according  to  date  of  com- 
mission. Accordingly,  officers  of  the  Marine 
Corps,  who  by  section  1603,  Revised  Statutes, 
are  in  relation  to  rank  on  the  same  footing  as 
officers  of  similar  grades  in  the  Army,  take  pre- 
cedence with  officers  of  the  staff  corps  of  the 
Navy  of  corresponding  rank  according  to  dates 
of  commission;  and  the  Navy  Department 
would  not  have  the  authority,  with  the  approval 
of  the  President,  to  amend  the  Navy  Regula- 
tions so  as  to  do  away  with  the  practice  as  to  the 
relative  rank  of  officers  of  the  Marine  Corps  and 
line  officers  of  the  Navy  established  in  accord- 
ance ^vith  the  Attorney  General's  opinion  of 
October  7,  1905  i25  Op.  Atty.  Gen.,  517).  y26 
Op.  Atty.  Gen.,  16.) 

Relative  rank  when  of  same  or  corre- 
sponding grade. — Section  1466  fixes  the  rela- 
tive rank  by  grades  only  of  line  officers  of  the 
Navy  and  of  the  Army.  But  this  merely  tells 
what  grades  in  each  service,  designated  by  their 
titles,  shall  be  of  corresponding  or  equal  right 
and  dignity,  and  does  not  fix  the  relative  rank 
of  these  officers  when  of  the  same  or  correspond- 
ing grades.  This  is  left  undetermined ,  so  far  as 
express  statute  or  regulation  is  concerned .  But 
the  unwritten  law  of  the  Army  and  Navy — a 
rule  of  action  governing  in  both  branches  of  the 
service — derived  from  long  established  and  uni- 
form practice,  has  settled  tliis.  From  the  earli- 
est days  of  the  Army  and  Navy  it  has  been  the 
rule  and  practice  that  officers  in  the  same  grade 
in  the  Army  and  Navy  have  relative  rank  and 
precedence  between  themselves  according  to 
the  dates,  respectively,  of  their  commissions; 
the  senior  in  commission  ranking  the  junior. 
The  same  rule  applies  in  such  cases  as  that 
which  governs  officers  of  the  Army  and  officers 
of  the  Nav>'  as  between  themselves  in  each  case, 
namely,  that  seniority  in  commission  or  appoint- 
ment gives  precedence  in  the  same  grade. 
This  has  become  a  well-understood  rule  of  action 
and  practice,  which,  in  fact,  governs  and  con- 
trols officers  of  the  Army  and  Navy  with  the 
same  force  and  precision  as  if  embodied  in 
statute  or  regulation.  (25  Op.  Atty.  Gen.,  517; 
see  also.  26  Op.  Attv.  Gen.,  16,  and  29  Op.  Atty. 
Gen.,  264.) 

In  so  far  as  the  precedence  of  officers  of  the 
same  rank  is  not  regulated  by  statute,  the  Secre- 
tary of  the  Navy  may  determine  same  with  the 
force  and  effect  of  law,  by  virtue  of  his  general 
authority  under  the  President  to  make  rules 
and  regulations  for  the  government  of  the  Navy. 
Usually  this,  of  course,  is  better  done  by  general 
rules  than  by  decisions  in  particular  cases,  but 
it  may  be  done  either  way.  It  would  seem  that, 
according  to  the  preference  given  throughout 
the  statutes  and  by  the  rules  and  practice  of  the 
War  and    Navy  Departments  to  seniority  of 


54641°— 22 43 


6G7 


Sec.  1467. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Bendce.  the  longer  service  of  an  officer  would, 
otlier  tliinfP'  lieins:  ec]ual.  give  him  precedence 
in  rank  with  reference  to  another  olHcer  pro- 
moted to  corresponding  rank  from  the  same 
date.     (2:U)p.  Atty.  Oon.,  156.) 

Relative  rank  when  of  same  or  corre- 
sponding grade  and  same  date  of  commis- 
sion.— "In  fixing  the  relative  rank  of  ollicers 
of  the  Army,  officers  of  tlie  Naw,  and  officers  of 
the  >rarine  Corps,  of  the  same  grade  and  date  of 
appnintment  and  commission,  the  time  which 
each  may  have  actually  served  as  a  commis- 
sioned officer  of  the  United  States,  whether  con- 
tinuously or  at  different  periods,  shall  be  taken 
into  account."  (Art.  R  1010  (2),  Navy  Regs., 
1913;  see  also  sec.  1219,  R.  S.,  relating  to  the 
Army.) 

This  rule  for  determining  precedence  between 
officers  of  the  same  grade  and  date  is  statutoiy 
in  the  Army,  and  the  rule  so  prescribed  by 
statute  for  the  Army  is  extended  to  the  Navy  by 
the  foregoing  regulation.  Such  a  regulation  for 
the  Navy  is  almost  a  necessity  in  view  of  the 
law  governing  the  Army,  as  should  a  different 
rule  be  prescribed  for  the  Navy  than  that  which 
governs  by  law  in  the  Army,  such  rules  would 
necessarily  conflict  where  officers  of  the  Army 
and  Navy  serve  or  associate  together,  and  it 
would  be  impossible  to  fix  theii"  relative  pre- 
cedence except  by  the  adoption  of  the  same 
rule  to  govern  all.  Nevertheless  no  statute 
limits  the  Secretaiy  of  the  Navy  in  fixing  the 
precedence  of  such  officers  of  the  Navy  as  be- 
tween themselves,  where  they  are  of  the  same 
gi'ade  and  date  of  rank,  and  therefore  the  regula- 
tion above  quoted  might  by  authority  of  the 
Secretary  be  departed  from  and  some  different 
rule  of  precedence  adopted.  (File  11130-53:1, 
June  25,  1910.) 

Command  of  joint  forces  of  the  Army 
and  Navy. — There  is  no  law  which  purports 


to  provide  who  shall  command  joint  forces  of 
the  Army  and  Navy  doing  duty  together,  this 
matter  having  been  left  by  Congress,  where  it 
properly  belongs,  to  the  President,  who,  as  com- 
mander in  chief  of  the  Army  and  Navy,  is  the 
only  authority  vested  by  the  Constitution  with 
the  ])ower  to  determine  what  officers  shall  take 
command  of  such  forces,  either  l)y  virtue  of 
rank  or  by  special  designation.  Article  lO'O 
of  the  Navy  Regulations,  1913,  issued  with  the 
written  approval  of  the  President,  provides: 
"An  officer  of  the  Navy  can  not  assume  com- 
mand of  Army  forces  on  shore,  nor  can  an  officer 
of  the  Army  assume  command  over  any  ship  of 
the  Navy,  or  oA-er  its  officers  or  men  afloat,  ex- 
cept in  either  case  by  special  authority  for  a 
particular  ser\dce;  but  when  officers  of  the  Navy 
are  on  duty  on  shore  with  the  Army  they  shall 
be  entitled  to  the  i)recedence  of  the  rank  in  the 
Army  to  which  their  own  coiTesponds,  exce])t 
command  as  aforesaid,  and  this  precedence  will 
regulate  their  right  to  quarters."  (File  3980- 
1402:3,  Mar.  4,  1918.) 

For  other  cases,  see  note  to  section  1342, 
Revised  Statutes,  article  120. 

Corresponding  rank  did  not  give  corre- 
sponding pay. — ^VVTiile  the  act  of  July  16, 1862, 
sec.  1466,  R.  S.,  had  fixed  the  relative  rank 
of  Army  and  naval  officers,  no  provision  for 
similarity  of  pay  was  made  until  the  passage  of 
the  Navy  personnel  act  of  March  3,  1899  (30 
Stat.,  1004),  which  act,  while  providing  against 
a  reduction  of  then  existing  pay  of  commis- 
sioned officers  of  the  Navy,  undertook  to  equal- 
ize the  pay  of  naval  officers  (theretofore  gen- 
erally below  that  paid  to  officers  of  correspond- 
ing rank  in  the  Army)  with  that  of  officers  in 
the  Armv  of  equal  rank.  (U.  S.  v.  Crosley,  196 
U.  S.,  327,  citing  U.  S.  v.  Thomas,  195  U.  S., 
418.) 


Sec.  1467.  [Rank  according  to  date.]  Line  officers  shall  take  rank  in  each 
grade  according  to  the  dates  of  their  commissions. — (16  July,  1862,  c.  183,  s.  1, 
V.  12,  p.  583.  21  April,  1864,  c.  63,  s.  7,  v.  13,  p.  54.  24  Jan.,  1865,  c.  19, 
s.  1,  V.  13,  p.  424.) 


Graduates  of  Naval  Academy,  precedence  of. 

See  section  1483,  Revised  Statutes. 
Precedence   of  Marine   officers.      See   section 

1603  and  note  to  section   1466,   Revised 

Statutes. 
Precedence  of  officers  selected   to   command 

squadrons.     See  sections   1434  and   1464, 

Re\'ised  Statutes. 
Precedence  of  commanding  officers  of  vessels 

and  stations.     See  section  1468,  Revised 

Statutes. 
Precedence    of    staff    officers    of    Navy.      See 

sections  1466,  1485,  1486,  and  1489,  Re- 

vnsed  Statutes,  and  notes  thereto. 
Precedence  of  officers  promoted  by  selection  to 

the  ranks  of  commander,  captain,  and  rear 

admiral  in  the  line  or  staff  of  the  Navy. 

See  act  of  August  29,  1916  (39  Stat.,  579), 

as  amended  by  act  of  July  1 ,   1918   (40 

Stat.,  718). 
Rank  of  officers  advanced   for  distinguished 

conduct  in  battle.    See  sections  1506-1510, 

Revised  Statutes. 


Special  pro\isions  governing  the  precedence 
of    temporary,  reserve,  and    Coast    Guard 
officers  transferred  to  the  line  or  stafi  of  the 
regular  Navy,  are  contained  in  act  of  Jiine 
4,  1920,  sections  3,  4,  and  5  (41  Stat.,  835, 
836). 
Date  of  commission  defined. — Seniority 
among  line  officers  of  the  Navy  is  determined 
by  date  of  commission — that  is,  the  date  from 
which  the  commission  recites  that  the  appoint- 
ment to  a  given  grade  begins.     (18  Op.  Atty. 
Gen.,  393;  see  also  Toulon  v.  U.  S.,  52  Ct.  Cls., 
333;  24  Comp.  Dec,  177;  22  Comp.  Dec,  623; 
17  Comp.  Dec,  605;  22  Comp.  Dec,  565,  566; 
compare  Young  v.  U.  S.,  19  Ct.  Cls.,  145.) 

Officer  suspended  from  rank  by  sentence 
of  court-martial. — ^WTiere  an  oflicer  is  sen- 
tenced by  court-martial  "to  be  suspended  for 
two  years  from  rank  and  duty,  on  furlough  pay, 
and  to  retain  his  present  number  on  the  list  of 
lieutenant  commanders  during  that  time, " 
officers  in  the  same  grade,  although  of  a  later 
date  of  commission,  may  pass  above  him  on  the 


668 


The  Navy. 


Pt.2.  RE  VISED  STAT  UTES. 


Sec.  1469. 


list  by  reason  of  the  sentence  which  held  said 
officer  to  the  number  which  he  held  at  the  time 
of  the  sentence.  The  sentence  rendered  by 
authority  of  law  g^ves  the  law  in  this  case,  and 
section  1467,  Revised  Statutes,  must,  in  its  ap- 
plication, accord  with  the  sentence.  An  order 
thereafter  issued  by  the  Secretary  of  the  Navy, 
remitting  "the  unexecuted  portion  of  the  sen- 
tence, "does  not  operate  to  restore  the  officer  to 
the  position  in  the  list  to  which  his  date  of  com- 
mission would  entitle  him.  The  fomi  of  the 
remitting  order  was  not  a  nullification  of  the 
original  sentence,  neither  was  it  an  absolute 
pardon  for  the  offense  committed .  The  sentence 
IS  neither  declared  void  nor  vacated;  the  "un- 
executed portion"  is  "remitted";  that  portion 
of  the  sentence  which  previous  to  the  remitting 
order  operated  to  place  two  officers  above  the 
officer  sentenced  was  executed  at  the  date  of 
the  order  of  remission,  and  was  therefore  by  the 
terms  of  the  order  not  affected  by  it.  While  an 
absolute  pardon  might  reinstate  the  officer 
sentenced  (citing  12  Op.  Atty.  Gen.,  547,  and 
17  Op.  Atty.  Gen.,  31  and  656),  an  order  by  the 
Secretary  remitting  the  unexecuted  portion  of 
the  sentence  can  not  produce  that  result.  (20 
Op.  Atty.  Gen.,  243;  compare  notes  to  Constitu- 
tion, Art.  II,  sec.  2,  clause  1,  "When  pardon 
may  be  granted. ") 

Loss  of  date  for  failure  to  qualify  for 
promotion. — See  note  to  section  1505,  Revised 
Statutes,  as  amended. 

Precedence  of  officers  promoted  by 
selection. — \\Tien  officers  are  promoted  by 
selection  they  should  be  considered  as  haAdng 
gained  length  of  service  according  to  their 
promotion  in  determining  their  relative  rank 
with  other  grades  of  the  Navy,  to  a  sufficient 
extent  to  place  them  above  the  officers  over 
whom  they  were  thus  advanced.  (17  Op.  Atty. 
Gen.,  56.  See  section  1486,  R.  S.,  as  to  officers 
who  have  gained  or  lost  niunbers.) 

When  the  report  of  the  Board  of  Rear 
Admirals  for  selection  for  promotion  created  by 
act  of  August  29,  1916  (39  Stat.,  578),  is  ap- 
proved by  the  President,  "the  officers  recom- 
mended therein  shall  be  deemed  eligible  for 
selection,  and  if  promoted  shall  take  rank  with 


one  another  in  accordance  with  their  seniority 
in  the  grade  from  which  promoted. "  (Act 
Aug.  29,  1916,  39  Stat.,  579.) 

Where  officer  has  been  issued  more  than 
one  commission  in  the  same  rank. — See 
file  4649-02,  July  17,  1902,  noted  under  section 
421,  Revised  Statutes,  "Precedence  of  chiefs 
of  bureaus. " 

An  officer  who  receives  a  permanent  com- 
mission in  the  grade  of  commander  while 
already  holding  a  temporary  commis.sion  in 
the  same  grade  of  an  earlier  date,  continues 
to  take  precedence  from  the  date  of  his  tem- 
porary commission  so  long  as  that  commission 
remains  in  force  and  is  not  expressly  revoked 
or  terminated  by  operation  of  law.  (C.  M.  0. 
237,  1919,  p.  28,  citing  file  11130-47:1,  July  18, 
1919;  see  also  C.  M.  O.  72,  1917,  p.  20,  citing 
file  11130-47,  Nov.  28,  1917). 

An  officer  given  a  temporary  commission  as 
assistant  surgeon  with  the  rank  of  lieutenant 
(junior  grade),  and  afterwards  given  a  per- 
manent commission  in  the  same  grade  and 
rank  from  a  later  date,  takes  precedence  from 
the  date  stated  in  his  permanent  commission 
and  notr  from  the  earlier  date  stated  in  his  tem- 
porary commission.  (C.  M.  O.  30,  1918,  p.  31, 
citing  file  111.30-37:4,  Mar.  12,  1918.) 

Antedating  rank  on  promotion. — See 
note  to  section  1458,  Revised  Statutes. 

Precedence  of  officers  commissioned  on 
same  date. — See  note  to  section  1466,  Revised 
Statutes. 

When  naval  officers  are  commissioned  on  the 
same  date,  the  numbering  of  the  commissions 
to  determine  the  relative  rank  of  the  officers 
is,  in  the  absence  of  statutes,  a  matter  of  practice 
in  the  Navy  Department,  and  not  governed  by 
law.     (1  Op.  Atty.  Gen.,  325.) 

A  fictitious  date  can  not  properly  be 
inserted  in  an  officer's  commission,  where  this 
would  be  attended  with  prejudice  to  other 
officers  in  the  same  grade,  unless  there  is  clear 
authority  of  law  for  so  doing.  (14  Op.  Atty. 
Gen.,  192.) 

For  other  cases,  sse  notes  to  Constitution, 
Article  II,  section  3,  "Duty  to  commission 
officers. " 


Sec.  1468.  [Commanding  officers  of  vessels  and  stations.]  Commanding 
officers  of  vessels  of  war  and  of  naval  stations  shall  take  precedence  over  all 
officers  placed  under  their  command. — (.3  Mar.,  1871,  c.  117,  s.  12,  v.  16,  p.  537.) 


Command  of  hospital  ships.    See  note  to  section 
1488,  Revised  Statutes. 

Command  of  vessels  and    navy  yards.      See 
sections  1529  and  1542,  Revised  Statutes. 

Marine  officers  not  to  exercise  command  over 
any  navy  yard  or  vessel  of  the   United 


States.  See  section  1617,  Revised  Stat- 
utes. 

Precedence  of  officers  commanding  squadrons. 
See  sections  1434  and  1464,  Revised 
Statutes. 

Staff  officers,  exercise  of  military  command  by. 
See  section  1488,  Revised  Statutes. 


Sec.  1469.  [Aid  or  executive  officer.]  The  Secretary  of  the  Navy  may, 
in  his  discretion,  detail  a  line  officer  to  act  as  the  aid  or  executive  of  the  com- 
manding officer  of  a  vessel  of  war  or  naval  station,  which  officer  shall,  when  not 
impracticable,  be  next  in  rank  to  said  commanding  officer.  Such  aid  or  execu- 
tive shall,  while  executing  the  orders  of  the  commanding  officer  on  board  the 
vessel  or  at  the  station,  take  precedence  over  all  officers  attached  to  the  vessel 


669 


Sec.  1471. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


or  station.  All  ordei-s  of  such  aid  or  executive  shall  be  regarded  as  proceeding 
from  the  commanding  officer,  and  the  aid  or  executive  shall  have  no  indej^end- 
ent  authority  in  consequence  of  such  detail. —  (3  Mar.,  1871,  c,  117,  s,  12,  v. 
16,  p.  537.) 

officer  or  any  other  officer  who  has  other  duties 
to  perform  separate  and  distinct  from  the  duties 
of  an  aid.     (Knox  v.  U.  S.,  52  Ct.  CLs.,  22.) 

A  captain  in  the  Navy  ordered  to  duty  as 
captain  of  the  yard,  where  the  commandant 
of  the  navy  yard  was  a  rear  admiral,  is  not 
entitled  to  additional  pay  as  aid  to  a  rear  admi- 
ral.    (Helm  V.  U.  S.,  52Ct.  Cls..  32.) 

A  lieutenant  in  the  Navy  ordered  to  duty  as 
"aid  to  the  commandant,  captain  of  the  yard, 
and  also  as  engineer  officer  of  the  yard, "  is 
entitled  to  the  additional  pay  provided  Ijy  the 
act  of  May  13,  1908  (35  Stat.,  128),  as  aid  to  a 
rear  admiral,  the  navy  yard  being  under  the 
command  of  an  officer  with  the  rank  of  rear 
admiral.     (Frucht  v.  U.  S.,  49  Ct.  Cls.,  570.) 

The  decision  of  the  Court  of  Claims  in  the 
Frucht  case  (noted  above)  turned  upon  the 
character  of  duties  actually  shown  to  have  been 
performed  by  the  claimant  in  that  case,  which 
were  personal  duties  in  addition  to  and  aside 
from  his  duties  as  captain  of  the  yard.  In 
that  case  it  was  specifically  stated  in  the  find- 
ings of  fact:  "While  stationed  as  aid  to  the 
commandant  of  the  navy  yard  at  Pensacola, 
Fla.,  the  claimant  performed  the  usual  duties 
required  of  aids  to  the  commandant  *  *  * 
and  in  addition  performed  other  duties  of  a 
more  personal  character  and  such  as  are  usually 
required  of  aids  to  rear  admirals  in  the  Navy 
and  generals  in  the  Army."  (File  262-54- 
1643:1,  Jan.  19,  1915.) 

Where  an  officer  was  detailed  by  the  Secre- 
tary of  the  Navy  to  duty  as  "aid  to  Rear  Ad- 
miral William  F.  FuUam, "  Superintendent  of 
the  Naval  Academy,  he  was  not  detailed  for 
dutj^  as  aid  or  executive  under  section  1469, 
Revised  Statutes,  and  regulations  based  thereon; 
but  was  an  aid  to  a  rear  admiral  and  his  duties 
were  in  no  way  the  same  as  those  provided  for 
under  the  laws  and  regulations  relating  to  aids 
or  executives,  .and  captains  of  the  yard.  There 
is  no  law  or  regulation  which  prevents  a  rear 
admiral  on  duty  ashore  from  having  an  aid, 
and  if  the  Secretary  of  the  Navy  specifically 
designates  an  officer  to  serve  in  such  capacity 
he  is  entitled  to  the  additional  pay  provided 
by  the  act  of  May  13,  1908.  (23  Comp.  Dec. 
.329;  see  also  24  Comp.  Dec,  558.) 

For  other  cases,  see  note  to  section  1556, 
Revised  Statutes,  "Additional  pay  for  special 
duty." 

Staff  officer  can  not  be  assigned  to  duty 
as  "aid  or  executive." — See  note  to  section 


"Aid  or  executive"  is  not  entitled  to 
additional  pay  as  aid  to  a  rear  admiral. — 
Section  1469,  Revised  Statutes,  has  no  refer- 
ence to  the  designation  of  aids  on  the  personal 
staff  of  a  Navy'officer  like  that  provided  for 
officers  of  the  Army  in  sections  1096-1098, 
Revised  Statutes.     (6  Comp.  Dec,  154.) 

The  provision  in  the  act  of  May  13,  1908 
(35  Stat.,  128),  for  additional  pay  for  aids  is: 
"  Aids  to  rear  admirals  embraced  in  the  nine 
lower  numbers  of  that  grade  shall  receive  one 
hundred  and  fifty  dollars  additional  per  annum, 
and  aids  to  all  other  rear  admirals  two  hundred 
dollars  per  annum  each."  The  statutory  aid 
or  executive  to  a  commandant  of  a  naval 
station,  or  "captain  of  the  yard"  as  he  is 
styled  by  Navj'-  Regulations,  is  not  an  aid  of 
the  kind  contemplated  by  the  act  of  May  13. 
1908,  and  therefore  is  not  entitled  to  the  addi- 
tional pay  which  that  act  provides  for  "aids 
to  rear  admirals, "  even  though  the  particular 
commandant  with  whom  he  serves  may  inci- 
dentally be  a  rear  admiial.  An  officer  detailed 
as  aid  or  executive  officer  to  the  commandant 
of  a  naval  station  under  the  conditions  of 
section  1469  corresponds  by  the  terms  of  that 
statute  to  an  executive  officer  of  a  war  vessel. 
He  acts  as  an  aid  or  executive  officer  to  the 
commandant  as  commandant,  whomsoever 
the  commandant  may  be  and  whatever  grade 
he  may  hold,  and  independently  of  his  per- 
sonality. The  mutual  official  relationship 
between  them  is  simply  that  of  a  superior  offi- 
cer and  an  officer  of  an  inferior  rank  attached  for 
duty  purposes  to  a  common  station,  as  distin- 
guished from  the  individual,  personal,  or 
social  relationship  of  an  aid  and  a  rear  admiral, 
which  is  the  basic  relationship  between  an  aid 
and  a  rear  admiral  of  the  kind  of  aid  contem- 
plated by  the  act  of  May  13,  1908,  and  for 
whose  service  in  such  relationship  that  act 
has  provided  additional  pay.  The  duties  per- 
formed by  the  former  for  the  commandant 
are  the  routine  executive  duties  of  a  naval 
station,  while  the  duties  performed  by  the 
latter  for  a  rear  admiral  are  personal  or  social 
in  their  character.  (23  Comp.  Dec,  327, 
following  21  Comp.  Dec,  561,  which  over- 
ruled 21  Comp.  Dec,  431.) 

An  aid  to  an  admiral  in  the  Navy,  whose 
pay  is  provided  for  in  the  act  of  May  13,  1908, 
IS  an  officer  legally  ordered  to  duty  with  an 
admiral,  \dce  admiral,  or  rear  admiral  to  per- 
form for  him  strictly  personal,  confidential, 
and  routine  duties.  These  duties  can  not  be 
combined  with  the  duties  of  a  fleet  ordnance 


1404,  Revised  Statutes. 


Sec.  1470.  [Staff  officers,  when  to  communicate  directly  with  commanding 
officer.]  Staff  officers,  senior  to  the  officer  so  detailed,  shall  have  the  right  to 
communicate  directly  with  the  commanding  officer. —  (3  Mar.,  1871,  c.  117,  s, 
12,  V.  16,  p.  537.) 

Sec.  1471.     [Chiefs  of  Bureaus.]     The  cliiefs  of  the  Bureau  of  Medicine  and 
Surgery,  Provisions  and  Clothing,  Steam  Engineering,  and  Construction  and 

670 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1471. 


Kepair  shall  have  the  relative  rank  of  commodore  while  holding  said  position, 
and  shall  have,  respectively,  the  title  of  Surgeon-General,  Paymaster-General, 
Engineer-in-Chief,  and  Chief  Constructor. —  (3  Mar.,  1871,  c.  117,  s.  12,  v.  16, 
p.  537.) 


Amendment  to  tMs  section  was  made  by  act  of 
IVIarch  3,  1899,  section  7  (30  Stat.,  1005), 
wMch  provided  that  "when  the  office  of 
chief  of  bureau  is  filled  by  an  officer  below 
the  rank  of  rear  admiral,  said  officer  shall, 
while  holding  said  office,  have  the  rank  of 
rear  admiral."     By  act  of  July   1,    1918 
(40  Stat.,  717),  it  was  provided  that  "here- 
after chiefs  of  bureaus  of  the  Navy  Depart- 
ment, including  the  Judge  Advocate  Gen- 
eral of  the  Navy,  shall,  while  so  serving, 
have  coiTesponding  rank  and  shall  receive 
the  same  pay  and  allowances  as  are  now  or 
may  hereafter  be  prescrilaed  by  or  in  pur- 
suance of  law  for  chiefs  of  biu'eaus  of  the 
War  Department  and  the  Judge  Advocate 
General   of  the  Army."     By  act  of   Oc- 
tober 6,  1917  (40  Stat.,  411),  it  was  pro- 
vided with  reference  to  the   Army  that 
"hereafter,  the  chief  of  any  existing  staff 
corps,  department,  or  bureau,  except  as  is 
otherwise  provided  for  the  Chief  of  Staff, 
shall  have  the  rank,  pay,  and  allowances 
of  major  general." 
As  to  rank,  title,  and  precedence  of  chiefs  of 
bureaus,  see  note  to  section  421,  Revised 
Statutes. 
Biu"eau  of  Provisions  and  Clothing  was  desig- 
nated as  Bureau  of  Supplies  and  Accounts 
by  act  of  July  19,  1892  (27  Stat.,  243,  245). 
Bureau  of  Steam  Engineering  was  designated 
as  Bureau  of  Engineering  by  act  of  June 
4,  1920  (41  Stat,  828). 
Historical  note.— On  December  24,  1862, 
the  Attorney  General  rendered  an  opinion  to 
the  Secretary  of  the  Navy  (10  Op.  Atty.  Gen., 
413),    holding  that  the  latter  had  authority 
under  the  law  to  issue  regulations  fixing  the 
"relative  rank  of  the  line  and  ci\il  or  staff 
officers  of  the  Navy."     Following  this  opinion 
it  was  provided  by  regulation  that  chiefs  of 
bureaus  of  the  staff  corps  were  "to  rank  with 
commodores,  and  to  take  precedence  of  each 
other,  according  to  their  dates  of  commission  as 
surgeons,  paymasters,  naval  constructors,  and 
engineers,  and  not  according  to  the  date  of 
appointment   as    *    *    *    chief   of    bm-eau." 
(Navy    Regs.,   1865,   Art.   II,   par.   25;    Navy 
Dept.  order  Mar.  3,  1863.)     On  March  31,  1869, 
the  Attorney  General  (13  Op.  Atty.  Gen.,  10) 
dissented   from   the   previous   opinion   of   his 
department,  above  cited,  and  held  that  certain 
regulations  issued  by  the  Secretary  of  the  Nay>', 
with   the   approbation   of   the    President,    on 
March  13,  1863,  "establishing  and  increasing 
the  relative  rank  of  the  staff  officers  of  the 
Nav^^"  were  invalid.     By  General  Order  No. 
120  of  April  1,  1869,  the  Secretary  of  the  Navy 
published  this  latter  opinion  of  the  Attorney 
General,  and  stated  that,  in  accordance  there- 
with, "the  order  of  March  3, 1863,  and  the  Navy 
Regulations,   Article   II,    paragraphs  6   to  28 
(both    inclusive),    are    hereby    revoked    and 
annulled."     Thereafter,    by  act  of  March  3, 
1871  (16  Stat.,  537,  sec.  12),  Congress  provided 


that  the  chiefs  of  the  Bureaus  of  Medicine  and 
Surgery,  Provisions  and  Clothing  (now  Sup- 
plies and  Accounts),  Steam  Engineering  (now 
Engineering),  and  Construction  and  Repair, 
shall  have  the  relative  rank  of  commodore  while 
holding  said  position,  "or  if  heretofore  or  here- 
after retired  therefrom  by  reason  of  age  of  length 
of  ser\T.ce. ' '  The  same  act  provided  that  when 
the  office  of  cMef  of  bureau  is  filled  by  a  line 
officer  below  the  rank  of  commodore,  said  officer 
shall  have  the  relative  rank  of  commodore  dur- 
ing the  time  he  holds  said  office. 

Titles  of  chiefs  of  bureaus. — The  head  of  a 
department  for  his  own  purposes  as  such  has 
authority  to  designate  offices  therein  and  to 
cause  his  subordinates  to  designate  them  in 
official  communications  by  names  other  than 
those  theretofore  borne  by  such  offices.  There 
is  no  statute  or  rule  of  law  which  forbids  the 
emplojTQent  of  certain  names  in  such  cases, 
where  the  head  of  the  department  considers 
that  new  relations  acquii'ed  by  such  branches 
of  business  under  a  reorganization  of  his  de- 
partment requires.  Congress  has  not  seen  fit  to 
so  hamper  a  coordinate  branch  of  the  Govern- 
ment. Its  own  use  of  names  is  not  such  a  pro- 
hibition. There  is  no  legal  objection  to  the 
employment  of  two  names  or  many  names  for 
the  same  object  nor  will  it  be  "inconsistent 
with  law  "  for  the  head  of  the  department  under 
section  161,  Revised  Statutes,  to  make  use  of 
other  names  than  those  used  by  Congress. 
Names  are  ordinaiily  free  for  the  person  speak- 
ing or  wiiting  to  choose.  (24  Op.  Atty.  Gen., 
697.) 

Persons  in  the  pubhc  service  may  be  offi- 
cially designated  by  titles  other  than  those 
used  in  the  law  to  identify  their  offices  or  posi- 
tions imder  the  Government,  it  being  necessary 
to  adhere  to  the  statutory  designation  only  in 
making  their  appointments  to  office.  The 
mere  assignment  of  a  different  title  for  official 
purposes  to  one  occupjing  an  authorized  posi- 
tion under  the  Government  does  not  by  any 
means  constitute  an  attempt  by  the  executive 
to  create  a  new  grade  or  to  change  the  office  or 
position  held  by  one  whose  designation  has 
thus  been  changed  for  administrative  reasons. 
(C.  M.  O.  92, 1918,  p.  27;  file  18141-24,  July  9, 
1918.) 

"The  chiefs  of  the  Bureaus  of  Medicine  and 
Siu-gery,  Supplies  and  Accounts,  Steam  Engi- 
neering (now  Engineering),  Construction  and 
Repair,  and  Yards  and  Docks,  while  holding 
these  offices,  shall  have,  respectively,  the  title 
of  Surgeon  General  of  the  Navj%  Paymaster 
General  of  the  Navy,  Engineer  in  Chief  of  the 
Navy,  Chief  Constructor  of  the  Navy,  and  Chief 
of  CU\dl  Engineers  of  the  Navy.  Each  such 
chief  of  bureau,  however,  shall  be  addressed 
and  designated  by  the  title  of  his  rank;  in 
Avritten  communications  the  title  of  his  office 
to  be  stated  next  after  his  name."  (Art.  R. 
1006  (2),  Navy  Regs.,  1913,  C.  N.  R.  12,  Sept. 
12.  1918.) 


671 


Sec.  1473. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Staff  bureaus. — The  bureaus  mentioned  in 
section  1171  are  the  staff  bureaus  of  the  Xa\-y, 
under  the  existing:  ori^anization,  except  that 
the  Engineer  Corps  (Steam  Engineering)  has 
now  been  transferred  to  the  line  by  the  person- 


nel act  of  March  3,  1899  (30  Stat.,  1005).     (25 
Op.Atty.  Gen.,  122.) 

For  other  cases  concerning  chiefs  of 
bureaus,  their  titles,  etc.  see  note  to  section 
421,  ReAosed  Statutes. 


Sec.    1472.     [Chief   of  bureau,    when   below   rank   of   commodore.     Super- 
seded.] 


This  section  provided  as  follows: 

"Sec.  1472.  AMien  the  office  of  chief  of 
Bureau  is  filled  by  a  line  oQicer  below  the  rank 
of  commodore,  said  officer  shall  have  the  rela- 
tive rank  of  commodore  during  the  time  he 
holds  said  office."— (3  Mar.,  1871,  c.  117,  s.  12, 
V.  16,  p.  537.) 

It  was  superseded  by  the  following  pro- 
vision in  the  act  of  March  3,  1899,  section  7  (30 
Stat. ,  1005) :  ' '  When  the  office  of  chief  of  bureau 
is  filled  by  an  officer  below  the  rank  of  rear 
admiral,  said  officer  shall,  while  holding  said 
office,  have  the  rank  of  rear  admiral."  The 
latter  pro\dsion  was  in  turn  superseded  by  act 
of  July  1,  1918  (40  Stat.,  717),  which  pro\-ided 
that  "hereafter  chiefs  of  bureaus  of  the  NaA"v 


Department,  including  the  Judge  Advocate 
General  of  the  Navy,  shall,  while  so  serving, 
have  corresponding  rank  and  shall  receive  the 
same  pay  and  allowances  as  are  now  or  may 
hereafter  be  prescribed  by  or  in  pursuance  of 
law  for  chiefs  of  bureaus  of  the  War  Depart- 
ment and  the  Judge  Advocate  General  of  the 
Army."  By  act  of  October  6,  1917  (40  Stat., 
411),  it  was  provided  with  reference  to  the 
Army  that  "hereafter,  the  chief  of  any  existing 
staff  corps,  department,  or  biu-eau,  except  as  is 
otherwise  provided  for  the  Chief  of  Staff,  shall 
have  the  rank,  pay,  and  allowances  of  major 
general." 

See    note    to    section    421,     Revised 
Statutes,    for    cases    concerning    the    rank 
status,  etc.,  of  chiefs  of  bureaus. 


Sec.  1473.  [Retired  from  position  of  chief  of  bureau.]  Officers  who  have 
been  or  who  shall  be  retired  from  the  position  of  cliiefs  of  the  Bureau  of  Medi- 
cine and  Surgery,  of  Provisions  and  Clothing,  of  Steam  Engineering,  or  of 
Construction  and  Repair,  by  reason  of  age  or  length  of  service,  shall  have  the 
relative  rank  of  commodore. —  (3  Mar.,  1871,  c.  117,  s.  12,  v.  16,  p.  537.) 

Amendment  to  this  section  was  made  by  act  of 

July  19, 1892  (27  Stat.,  243,  245),  by  which 

the  Bureau  of  Provisions  and  Clothing  was 

designated  as  Bureau  of  Supplies  and  Ac- 

coimts;  also  by  act  of  March  3,  1899,  sec- 
tion 7  (30  Stat.,  1006),  which  changed  the 

words  "the  relative  rank  of"  to  "the  rank 

of,"  and  provided  that  chiefs  of  bureaus, 

while  so  serving,  shall  have  the  rank  of 

rear  admiral;  and  by  act  of  June  4,  1920  (41 

Stat.,  828),  which  changed  the  designation 

of  tlie  Bureau  of  Steam  Engineering   to 

Bureau  of  Engineering. 
By  act  of  May  13,  1908  (35  Stat.,  128),  it  was 

provided  that  "any  officer  of  the  Navy  who 

is  now  serving  or  shall  hereafter  serve  as 

chief  of  a  bureau  in  the  Navy  Department, 

and  shall  subsequently  be  retired,  shall  be 

retired  with  the  rank,  pay  and  allowances 

authorized  by  law  for  the  retirement  of  such 

bureau  chief." 
Rank  of  staff  officers  retired  for  causes  incident 

to  the  service.    See  section  1482,  Revised 

Statutes. 
See  generally  note  to  section  421,  Revised  Stat- 
utes, as  to  retirement  of  chiefs  of  bureaus. 
Rank  on  retirement  now  rear  admiral. — 
The  Navy  personnel  act  of  March  3,  1899,  sec- 
tion 7  (30  Stat.,  1005)_,  has  now  substitiited  the 
rank  oi  reai  admiral  in  the  cases  of  retirement 
of  staff  officers,  in  which  suc-h  retirement  was 
authorized  by  the  Revised  Statutes  with  the 
relative  ranlc  of  commodore.  (25  Op.  Atty. 
Gen.,  294,  296,  citing  22  Op.  Atty.  Gen.,  433; 
compare  5  Comp.  Dec,  821.[) 

Retirements   under   section    1473,    Revised 
Statutes,  are  made  in  practice  with  the  rank 


of  rear  admiral  instead  of  commodore,  as  was 
provided  therein.  (File  3980-1402,  Oct.  31, 
1917.) 

For  other  cases,  see  note  to  section  1466, 
Revised  Statutes. 

Retirement  of  a  chief  of  birreau  creates 
a  vacancy,  but  is  not  a  vacancy  created  by 
death,  resignation,  absence,  or  sickness  which 
may  be  filled  in  accordance  with  sections  178- 
181,  Revised  Statutes.  Congress  having  made 
no  provision  for  the  temporary  discharge  of  his 
duties  in  this  case,  the  bureau  remains  without 
a  head  until  the  place  is  filled  pursuant  to  the 
provisions  of  section  421,  Revised  Statutes. 
The  order  of  the  President  designating  the 
Chief  Constructor  as  Acting  Chief  of  the  Bureau 
of  Steam  Engineering  [now  Engineering],  upon 
the  retirement  of  the  chief  of  that  bureau,  was 
unauthorized.  (27  Op.  Atty.  Gen.,  337;  com- 
pare cases  noted  under  sec.  179,  R.  S.) 

"Retired"  defined. — There  is  a  difference 
between  retiring  from  the  office  and  retirement 
in  the  sense  of  section  1473.  All  staff  biu-eau 
chiefs  who  are  entitled  to  retirement  under  the 
statutes  when  serving  as  PajTnaster  General, 
etc.,  have  the  right  to  bear  the  appropriate  title 
followed  by  the  Word  "  retired  " ;  but  of  course 
this  is  not  so  when  the  service  as  bxu-eau  chief 
is  followed,  not  by  retirement  but  by  retiun  to 
other  active  duties.     (25  Op.  Atty.  Gen.,  294.) 

Retirement  affects  tenure  of  office. — 
That  the  retirement  of  an  officer  from  active 
service  affects  his  tenure  of  office  as  bureau 
chief,  as  well  as  his  office  in  the  line,  is  recog- 
nized by  Congress  in  thj  provisions  of  section 
1473,  Revised  Statutes.  (27  Op.  Atty.  Gen., 
337.) 


672 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1474. 


Retirement  in  cases  not  covered  by  this 
section. — The  contention  that,  since  section 
1473,  Revised  Statutes,  specifically  pro\T.des 
that  chiefs  of  foixr  of  the  bui-eaus  shall  be  retired 
with  the  rank  of  comnrjodore,  therefore  Congi'ess 
can  not  have  intended  to  confer  the  same  priv- 
ilege on  the  chiefs  of  the  other  four  bureauSj  or 
on  the  Judge  Advocate  General,  besides  im- 
puting to  Congi'ess  an  intention  to  make  a  dis- 
ciimination  for  which  no  possible  reason  can 
be  suggested,  loses  its  force  when  the  act  of 
Marcli  3, 1871  (which  is  the  source  of  R.  S.  1471, 
1472,  1473,  and  1482),  is  read  as  a  whole  in  the 
light  of  the  situation  existing  when  it  was 
passed,  ^"lien  this  is  done  with  a  desire  to 
ascertain  the  actual  intention  of  Congress,  the 
proper  inference  ■n'ill  be  seen  to  be  that  Con- 
gi-ess  intended,  not  to  discriminate  between 
one  chief  of  bureau  and  another,  but  to  confer 
upon  the  chiefs  of  the  so-called  staff  bureaus  a 
gi'ade  or  rank  on  retirement  which  it  thought 
already  appertained  to  the  chiefs  of  the  so- 
called  line  biu-eaus.  (31  Op.  Atty.  Gen., 
505.) 


It  seems  clear  when  the  statutes  relating 
to  this  subject  are  considered  as  a  whole  and  in 
their  order,  that  Congress  intended:  (a)  Asa 
general  thing  to  equalize  the  grade  or  rank  of 
an  officer  of  the  Navy  on  retirement  with  that 
enjoyed  by  him  at  the  moment  of  his  retire- 
ment; {h)  to  use  the  word  "grade"  in  section 
1457,  Re\Tsed  Statutes,  as  a  general  term  indi- 
cating any  marked  distinction  fixed  by  law 
among  officers  which  would  be  expressed  in 
their  commission,  title,  or  pay,  not  excluding 
chiefs  of  biu-eaus  having  a  certain  rank;  (c) 
not  to  make  any  distinction  between  one  occu- 
pant of  a  biu'eau  office  and  another  because  of 
the  line  or  staff  source  from  which  he  came. 
(31  Op.  Atty.  Gen.,  505,  holding  that  "a  line 
officer  of  the  Naw,  retired  while  ser\T.ng  as 
Chief  of  Bureau  or  Judge  Advocate  General, 
should  be  placed  on  the  retired  list  with  the 
rank  attached  by  law  to  the  said  position  of 
Chief  of  Bureau  or  Judge  Advocate  General.") 

For  other  cases  relating  to  retirement  of 
chiefs  of  Inireaus,  etc.,  see  note  to  section  421, 
Re\'ised  Statutes. 


Sec.  1474.  [Medical  Corps.]  Officers  of  tlie  Medical  Corps  on  the  active  list 
of  the  Navy  shaU  have  relative  rank  as  foUows: 

Medical  directors,  the  relative  rank  of  captain. 

Medical  uispectors,  the  relative  rank  of  commander. 

Surgeons,  the  relative  rank  of  lieutenant-commander  or  lieutenant. 

Passed  assistant  surgeons,  the  relative  rank  of  lieutenant  or  master. 

Assistant  surgeons,  the  relative  rank  of  master  or  ensign. —  (3  Mar.,  1871,  c. 
117,  s.  5,  V.  16,  p.  535.) 


Amendment  to  this  section  was  made  by  act  of 
June  7, 1900  (31  Stat.,  697),  which  provided 
that  "assistant  surgeons  shall  rank  with  as- 
sistant sm'geons  in  the  Army"';  by  section 
1168,  Revised  Statutes,  the  lowest  rank  of 
an  assistant  surgeon  in  the  Army  during  the 
first  three  years  of  service  was  that  of  a  lieu- 
tenant of  caAalry;  the  effect  of  the  act  of 
1900  was  therefore  to  give  to  assistant  sm- 
geons  in  the  Na^'y  the  rank  of  lieutenant 
(junior  grade)  instead  of  ensign.  (Hum- 
mer V.  U.  S.,  224  U.  S.,  138.)  The  act  of 
March  3,  1903  (32  Stat.,  1197),  authorized 
the  appointment  of  additional  passed  assist- 
ant and  assistant  surgeons  "with  the  rank, 
respectively,  of  lieutenant  and  lieutenant 
(junior  grade)."  Further  amendment  to 
this  section  was  made  bv  act  of  August  29, 
1916(39  Stat.,  577),  which  piw-ided  that  "all 
assistant  surgeons  shall  from  date  of  their 
original  appointment  take  rank  and  prece- 
dence with  lieutenants  (junior  grade)." 
The  act  last  cited  further  created  the  rank  of 
rear  admiral  for  medical  du-ectors,inaddi- 
tion  to  the  rank  of  captain,  the  distribution 
to  be  "one-half  medical  directors  with  the 
rank  of  rear  admiral  to  four  medical  directora 
^\•ith  the  rank  of  captain,  to  eight  medical 
inspectors  ^rith  the  rank  of  commander,  to 
eighty -seven  and  one-hali  in  the  grades  be- 
low medical  inspector."  (See  note  to  sec. 
1368,  R.  S.)  The  words,  "the  relative  rank 
of,"  as  used  in  this  section,  were  changed 
to  read,  "the  rank  of,"  by  act  of  March  3. 


1899,  section  7  (30  Stat.,  1006).  The  title 
"master"  was  changed  to  "lieutenant  (jun- 
iorgrade) "  byactof  March  3, 1883  (22  Stat., 

472). 


By 


(39 


Stat.,    576), 

of    the 
*    *    * 


act  of  August  29,  1916 
it  was  proA"ided  that  "officers 
lower  gi-ades  of  the  Medical  Corps, 
shall  be  advanced  in  rank  up  to  and  includ- 
ing the  rank  of  lieutenant  commander  with 
the  officers  of  the  line  vnXh  whom  or  next 
after  whom  they  take  precedence  under  ex- 
isting law."  By  act  of  May  22,  1917,  sec- 
tion 17  (40  Stat.,  89),  it  was  enacted  that  the 
above  clause  in  the  act  of  August  29,  1916, 
shall  not  operate  "to  distm-b  the  relative 
position  of  officers  in  the  Medical  Corps 
^vith  reference  to  precedence  or  promotion , 
but  all  such  officers  otherwise  qualified  shall 
be  advanced  in  rank  with  or  ahead  of  offi- 
cers in  said  corps  who  were  their  juniors  on 
the  date  of  said  act. ' ' 
By  act  of  July  1, 1918  (40  Stat.,  718),  it  was  pro- 
\'ided  that  the  advancement  of  staff  officers 
of  the  Na^vy  to  the  ranks  of  commander, 
captain,  and  rear  admiral,  shall  be  by  selec- 
tion in  the  manner  therein  provided. 

Examinations  were  discontinued  for  promotion 
of  staff  officers  in  grade  by  act  of  May  22, 
1917,  section  20  (40  Stat.,  89),  which  act 
and  section  also  reenacted  a  pro%dsion  in 
the  act  of  March  4,  1917  (39  Stat.,  1182), 
requii-ing  examinations  of  staff  officers  for 
advancement  in  rank. 


673 


Sec.  1474. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


See  pections  1368-1375,  Revised  Statutes,  and 
notee  thereto,  concerning  the  organization 
of  the  Medical  Corps,  and  appointments, 
]iroruotions,  etc.,  therein. 
Historical  note.—  It  is  ob\'iou8  that  every 
military  estivblit-hmcnt,  whether  Army  or  Naw, 
must  have  connected  with  it  certain  organiza- 
tions of  business  or  scientific  men  whose  serv- 
ices, although  auxiliary  to  the  combatant  force 
of  such  establishment,  are  yet  nece.'^sary  to  its 
efficiency.  These  constitute  the  staff  corps  as 
distinguished  from  the  line.  It  is  also  neces- 
sary that  the  officers  of  such  a  corps,  being  gen- 
tlemen who  render  important  and  valuable  serv- 
ices, should  be  brought  into  such  relations  ^vith 
the  officers  of  the  line  that  their  ovm  dignity 
shall  be  preserved,  and  the  proper  order  of  a 
military  establishment  maintained.  While, 
therefore,  rank  is  primarily  established  with 
reference  to  those  who  are  entitled  to  command, 
with  a  \-iew  to  determining  the  order  in  which 
they  are  to  command,  it  is  necessary  to  giA^e  to 
the  grades  created  in  other  corps  a  mnk  which 
shall  either  be  the  same  vnth.  the  rank  of  the  offi- 
cers of  the  Line,  or  which,  by  relation  to  the  rank 
of  the  officers  of  the  line,  shall  entitle  those  hold- 
ing it  to  such  honor,  attention,  and  respect 
as  is  accorded  to  officers  of  the  line  of  the  rank 
to  which  it  relates  or  is  assimilated.  Such  rank, 
whether  it  be  absolute  in  terms,  or  whether  it  be 
termed  assimilated  or  relative  rank,  may,  of 
course,  be  always  subject  to  such  exceptions  as 
the  legislative  power  may  deem  proper.  Or- 
ders were  early  passed  bj''  various  secretaries  of 
the  NaA-y  proA'iding  that  certain  officers  of  the 
staff  should  rank  with  certain  officers  of  the  line, 
the  same  orders  pro\'idiug  that  this  should  not 
give  them  authority  to  exercise  militaiy  com- 
mand, and  should  give  no  additional  right  to 
quarters.  Two  general  orders  of  this  nature,  of 
Secretary  Bancroft  and  Secretary  !Mason,  relat- 
ing to  surgeons  and  pursers,  were  confirmed  by 
the  act  of  August  5,  1854  (sec.  4,  10  Stat.,  587). 
A  similar  order  by  Mr.  Toucey  in  relation  to 
engineers  was  also  confirmed  by  a  subsequent 
statute.  These  orders  did  not  give  to  the  staff 
officers  to  whom  they  referred  the  same  rank  as 
that  held  by  officers  of  the  line,  but  a  rank  equal 
to  and  assimilated  with  that  of  officers  of  the 
line.  In  January  1871  a  bill  was  passed  by  the 
House  of  Representatives  which  gave  to  each 
staff  officer  definite  or  absolute  rank,  the  phrase 
used  in  regard  to  such  officers,  e.  g.,  being  "13 
pay  inspectors  who  shall  have  the  rank  of  com- 
mander." This  bill  was  the  subject  of  much 
discussion,  and  in  the  Senate  it  was  amended 
and  finally  passed  by  both  houses  of  Congress  in 
a  form  which  gave  to  the  officers  of  the  staff  rela- 
tive rank,  the  phrase  used  in  regard  to  such  offi- 
cers being,  e.  g.,  "13  pay  inspectoi-s  who  shall 
have  the  relative  rank  of  commander."  This 
statute  is  embodied  in  sections  1474-1480,  Re- 
vised Statutes.  It  is  impossible  to  conceive 
why  this  change  was  made  if  Congress,  when  it 
finally  passed  the  bill,  did  not  suppose  that  the 
"relative"  rank  of  commander  was  something 
different  from  the  rank  or  grade  of  commander. 
The  terms  seem  almost  to  force  the  conclusion 
that  the  pay  inspector  was  to  have  the  rank  of 
commander  by  reference  or  relation  to  the  rank 
held  by  a  commander  in  the  line.    While  un- 


doubtedly Congress  might  pro\'ide  that  he 
should  have  the  absolute  rank  of  commander  and 
might  annex  to  it  appropriate  conditions  con- 
sidering the  duties  expected  to  be  performed  by 
him,  such  as  that  he  should  not  exercise  mili- 
tary command,  it  is  apparent  that  in  inserting 
the  word  "relative  "  Congress  has  made  the  pro- 
vision which  it  deemed  necessary  for  the  respect 
which  was  undoubtedly  to  be  accorded  to  nim. 
In  the  Army  it  is  no  doubt  tnie  that  certain  offi- 
cers whose  duties  are  strictly  those  of  staff  ofii- 
cers,  like  the  officers  of  the  Pay  Corps  of  the 
Army,  have  absolute  rank  (see  sec.  1182,  R.  S.), 
but  it  will  be  observed  that  neither  the  word 
"relative  "  nor  any  word  expressi\-e  of  the  same 
idea  is  found  in  the  section.  These  officers  of 
the  Army  are  identified  with  certain  grades  of 
the  line  by  appropriate  words  conferring  abso- 
lutely the  rank  of  those  grades,  but  by  the  use 
of  the  word  "relative"  Congress  indicates  its 
intention  to  make  the  grades  of  the  Pay  Corps 
of  the  Xa\'y  equal  to  but  not  identical  with  the 
grades  of  the  line  with  which  they  are  con- 
nected by  relation.     (16  Op.  Atty.  Gen.,  414.) 

On  December  24,  1862,  the  Attorney  General 
rendered  an  opinion  to  the  Secretary  of  the 
Navy  (10  Op.  Atty.  Gen.,  413)  holding  that  the 
latter  had  authority  under  the  law  to  issue  regu- 
lations fixing  the  "relatiA-e  rank  of  the  line  and 
ciA-il  or  staff  officers  of  the  NaAy."  Following 
this  opinion  it  was  pro\dded  by  regulation  that 
"surgeons,  pajTnasters,  naval  constructors, 
chief  engineers,  chaplains,  professors  of  mathe- 
matics, passed  assistant  surgeons,  secretaries, 
assistant  surgeons,  assistant  na^•al  constructors, 
assistant  paymasters,  first  assistant  engineers, 
second  assistant  engmeei's,  third  assistant  engi- 
neers, clerks,  carpenters,  and  sailmakers  are  to 
be  regarded  as  staff  officers,  and  all  other  officers 
of  the  sendee  as  line  officers.  The  relatiA^e 
rank  between  the  officers  of  these  two  classes  is 
to  be  as  follows:  Assistant  surgeons  to  rank  with 
mastei-s,"  etc.  (Na\y  Regs.,  1865,  Art.  II; 
par.  5  et  seq.;  Navy  Dept.  order  Mar.  3,  1863.) 
On  March  31,  1869,  the  Attorney  General  (13 
Op.  Atty.  Gen.,  10)  dissented  from  the  pre\aous 
opinion  of  his  department,  above  cited,  and 
held  that  certain  regulations  issued  by  the  Sec- 
retary of  the  NaAy ,  with  the  approbation  of  the 
President,  on  March  13, 1863,  "  establishing  and 
increasing  the  relative  rank  of  the  staff  officers 
of  the  NaA^,"  were  invalid.  By  General  Order 
No.  120  of  April  1,  1869,  the  Secretary  of 
the  Navy  published  this  latter  opinion  of  the 
Attorney  General,  and  stated  that,  in  accord- 
ance therewith,  'the  order  of  March  3,  1863, 
and  the  Navy  Regulations,  Article  II,  ptara- 
gi-aphs  6  to  28  (both  inclusive),  are  hereby  re- 
voked and  annulled."  The  same  general  order 
also  published  the  rank  of  staff  officers  as  then 
established  by  law.  Thereafter  by  act  of  March 
3,  1871  (16  Stat.,  535,  et  seq.),  embodied  in  sec- 
tions 1474-1480,  Re"\dsed  Statutes,  Congress  es- 
tablished the  relative  rank  of  various  staff  offi- 
cers. 

By  the  Na\y  personnel  act  of  March  3,  1899, 
section  7  (30  Stat.,  1006),  it  was  pro\'ided  "that 
all  sections  of  the  Revised  Statutes  which,  in 
deffiiing  the  rank  of  officers  or  positions  in  the 
Na^y,  contain  the  words  'the  relative  rank  of 
are  hereby  amended  so  as  to  read  'the  rank  of,' 


674 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1474. 


but  ofBcers  whose  rank  is  so  defined  shall  not  be 
entitled,  in  virtue  of  their  rank  to  command  in 
the  line  or  in  other  staff  corps." 

Comraand  of  hospital  ships  by  medical 
officers. — See  note  to  section  1488,  Revised 
Statutes. 

Clerical  error  in  stating  rank  of  medical 
officer  in  commission. — An  assistant  surgeon 
was  nominated  to  the  Senate  for  appointment 
as  a  passed  assistant  surgeon  without  mention 
of  the  rank,  whether  lieutenant  or  lieutenant 
(jurdor  grade),  to  be  held  under  such  appoint- 
ment; by  clerical  error  he  was  commissioned 
as  passed  assistant  surgeon  with  the  rank  of 
lieutenant  instead  of  the  rank  of  lieutenant 
(junior  grade).     ^Vhile  it  is  true  that  section 

1474,  Revised  Statutes,  provides  that  passed 
assistant  surgeons  shall  have  the  rank  of  lieu- 
tenant or  lieutenant  (junior  grade),  without 
specifying  the  number  in  each  rank,  yet  the 
rank  is  not  left  to  the  discretion  of  the  appoint- 
ing power  but  is  determined  by  section  1485, 
Re\'ised  Statutes.  To  have  given  this  officer 
the  rank  of  lieutenant  at  the  time  of  his  promo- 
tion would  have  advanced  him  about  20  num- 
bers in  rank,  which,  without  the  advice  and 
consent  of  the  Senate,  is  specifically  prohibited 
by  section  1506,  Revised  Statutes,  as  amended 
by  act  of  June  17,  1878  (20_Stat.,  143).  Accord- 
ingly, held  that  the  officer  in  question  is  entitled 
only  to  the  pay  of  lieutenant  (junior  grade). 
(11  Comp.  Dec,  43;  compare  26  Op.  Atty. 
Gen.,  496,  noted  under  sec.  1485,  R.  S.,  holding 
that  sees.  1485  and  1486,  R.  S.,  have  notliing 
whatever  to  do  in  determining  whether  an  offi- 
cer should  be  advanced  in  one  rank  or  more 
than  one.) 

Retirement  of  medical  officer  with 
higher  rank  than  that  provided  for  the 
active  list. — Under  section  1474,  Revised 
Statutes,  the  highest  grade  in  the  Medical 
Corps  was  that  of  medical  director  with  the 
relative  rank   of  captain;  and   under  section 

1475,  Revised  Statutes,  the  highest  officers  of 
the  Pay  Corps  were  pay  directors  with  the 
relative  rank  of  captain.  In  the  active  list 
there  was  no  higher  relative  rank  to  be  attained 
in  either  of  these  corps  than  that  of  captain. 
Nevertheless,  held  that  under  section  11  of  the 
Navy  personnel  act  of  March  3,  1899  (30  Stat., 
1007),  providing  for  the  retirement  of  certain 
officers  with  the  rank  "of  the  next  higher 
grade,"  a  pay  director  and  a  medical  director 
having  the  rank  of  captain  were  entitled  to  be  re- 
tired with  the  rank  of  rear  admiral,  although  this 
will  result  in  a  higher  rank  than  that  to  which 
it  would  be  possible  for  them  to  attain  in  the 
active  service.  Of  course,  one  occupying  the 
highest  rank  in  the  Nai'y  could  not  by  retire- 
ment or  other  means  be  promoted  to  a  higher 
grade  when  none  exists.  But  section  11  of  the 
act  cited  refers  to  the  rank  or  grade  of  officers 
of  the  Navy  generally,  without  respect  to  the 
limitations  of  rank  placed  upon  the  different 
branches  of  staff  service.  (22  Op.  Attv.  Gen., 
433.)  y        V        y 

The  officers  of  different  staff  coi-ps,  such  as 
the  Medical  Corps  and  the  Pay  Corps,  have 
separate  and  distinct  titles  appropriate  to  the 
nature  of  their  service  and  to  their  rank  in  the 
corps;  and  in  addition  thereto  are  given  rela- 
tive rank  by  the  same  title  that  is  applied  to 


officers  of  the  line.  The  line  furnishes  the 
standard  of  rank  for  officers  of  all  classes.  A 
captain  of  the  line  is  merely  a  captain  and  has 
but  one  title  to  designate  both  his  office  and 
his  rank.  An  officer  of  the  staff  has  an  official 
title  to  identify  his  position  in  his  corps  and 
also  a  relative  rank  in  addition,  the  latter  being 
arbitrarily  fixed  by  Congress  to  designate  his 
relative  rank  in  the  service  in  accordance  with 
the  line  standard.  The  rank  conferred  upon  a 
person  holding  the  position  of  medical  director 
is  purely  statutory  and  arbitrary,  and  there  is 
no  reason  why  a  retired  medical  director  should 
not  hold  a  higher  relative  rank  than  that  which 
is  permitted  on  the  active  list.  That  Congress 
has  in  other  instances  contemplated  a  similar 
result  is  apparent  from  the  provisions  of  section 
1481,  Revised  Statutes,  which  provides  that 
certain  staff  officers  shall  when  retired  have  the 
relative  rank  of  commodore.  (22  Op.  Atty. 
Gen.,  433.) 

Rank  of  acting  assistant  surgeons. — 
By  act  of  May  4,  1898  (30  Stat.,  369,  380),  the 
President  was  authorized  to  appoint  for  tempo- 
rary service  25  acting  assistant  surgeons  ' '  who 
shall  have  the  relative  rank  and  compensation 
of  assistant  surgeons."  The  act  of  June  7,  1900 
(31  Stat.,  697),  raised  the  rank  of  assistant  sur- 
geons in  the  Navy  by  providing  that  "assistant 
sm'geona  shall  rank  with  assistant  surgeons  in 
the  Army. ' '  Prior  to  that  act  the  rank  of  assist- 
ant surgeons  in  the  Navy,  upon  entrance  into 
the  Navy,  was  that  of  ensign.  By  Revised 
Statutes  1168  the  lowest  rank  of  an  assistant 
surgeon  in  the  Army,  during  the  first  tliree  years 
of  service,  was  that  of  a  lieutenant  of  cavalry. 
The  effect  of  the  act  of  1900  was,  therefore,  to 
give  assistant  surgeons  in  the  Navy  a  higher 
rank — that  is,  to  raise  them  from  the  rank  of 
ensign  to  that  of  lieutenant  (junior  grade).  By 
circular  of  the  Surgeon  General  of  the  Navy, 
December  29,  1902,  it  was  stated  that  acting 
assistant  surgeons  would  have  the  same. rank 
and  pay  as  assistant  surgeons  in  the  regular 
service.  Claimant  was  commissioned  as  an 
acting  assistant  surgeon,  the  commission  stating 
his  rank  to  be  that  of  lieutenant  (junior  grade). 
Held,  that  the  act  of  1898  pro\-ided  for  a  standard 
by  which  to  determine  the  rank  and  pay  of  the 
acting  assistant  surgeons,  and  that  under  said 
act  the  standard  was  the  rank  and  pay  of  assist- 
ant surgeons  in  force  at  the  time  when  the  serv- 
ices of  the  acting  assistant  surgeons  were  ren- 
dered, and  not  the  rank  and  pay  in  force  when 
the  act  of  1898  was  enacted,  which  had  become 
a  nonexisting  or  obsolete  standard.  The  rela- 
tion which  the  act  of  1898  established  between 
the  rank  and  pay  of  acting  assistant  surgeons 
and  assistant  surgeons  in  reason  must  rest  upon 
the  sub^antial  identity  of  the  services  to  be 
rendered  by  the  incumbents  of  both  office.^. 
(Plummer  v.  U.  S.,  224  U.  S.,  137.) 

A  passed  assistant  svurgeon  in  the  N"a,vy 
with  the  rank  of  lieutenant  (junior  grade)  toi  - 
responds  in  rank  with  an  assistant  surgeon  in 
the  Army  with  the  rank  of  a  first  lieutenant, 
and  a  passed  assistant  surgeon  in  the  Navy  with 
the  rank  of  lieutenant  corresponds  in  rank  with 
as  assistant  surgeon  in  the  Army  with  the  rank 
of  captain.  His  pay  is  attached  to  his  rank  by 
section  7  of  the  Navy  personnel  act  of  March  3, 
1899.    Therefore  a  passed  assistant  surgeon  in 


675 


Sec.  1475. 


Pi. '2.  REVISED  STATUTES. 


The  Navy. 


the  Navy  with  the  rank  of  lieutenant  is  entitled 
to  the  pay  of  an  oIliciT  of  corresponding^  rank  in 
the  Army,  to-\vil,  that  of  an  assistant  surgeon 
with  the  rank  of  captain.  (9  Comp.  Dec,  67G, 
modifying  5  Comp.  Dec,  943.) 

Tliere  is  no  grt)und  for  distinction  between 
assistant  surgeons  and  passed  assistant  surgeons 
that  would  give  mounted  pay  to  one  and  deny 
it  to  the  other.     (9  Oomp.  Dec,  670.) 

Section  141)0,  Revised  Statutes,  assimilates 
in  rank  lieutenants  in  the  Navy  with  captains 


in  the  Army.  Under  the  Navy  personnel  act 
of  March  3.  1S99  (30  Stat.,  1007),  and  section 
14()(),  Revised  Statutes,  passed  assistant  sur- 
geons of  the  Navy  as  well  as  assistant  surgeons 
rank  with  captains  in  the  Army.  (U.  S.  v. 
Farenliolt,  206  U.  S.,  220.) 

As  to  status  of  passed  assistant  surgeons,  see 
note  to  .section  1368,  Revised  Statutes. 

Advancement  in  rank  and  promotion  of 
staff  officers. — See  note  to  section  1480, 
Revised  Statutes. 


Sec.  1475.  [Supply  Corps.]  Officers  of  the  Pay  Corps  on  the  active  list  of 
the  Navy  shall  have  relative  rank  as  follows: 

Pay  directors,  the  relative  rank  of  captain. 

Pay  inspectors,  the  relative  rank  of  commander. 

Paymasters,  the  relative  rank  of  lieutenant-commander  or  lieutenant. 

Passed  assistant  paymasters,  the  relative  rank  of  lieutenant  or  master. 

Assistant  paymasters,  the  relative  rank  of  master  or  ensign. — (3  Mar.,  1871, 
c.  117,  s.  6,  V.  16,  p.  536.) 

Retirem.ent  with  higher  rank  than  that 
provided  for  the  active  list. — See  note  to 
section  1474,  RcN-ised  Statutes. 

Rank  of  paymasters  and  assistant  pay- 
masters.—The  act  of  June  7,  1900  (31  Stat., 
697),  provides  that  "assistant  surgeons  shall 
rank  with  assistant  surgeons  in  the  Army. " 
There  is  no  statute  which  makes  assistant 
paymasters  having  the  rank  of  ensign  and 
lieutenant  (junior  grade)  rank  with  assistant 
paymasters  in  the  Army.  Nor  is  there  any 
law  whereby  paymasters  in  the  Navy  shall 
rank  with  paymasters  in  the  Army,  yet  there  is 
a  direct  correspondence  under  these  laws  be- 
tween the  paymaster  with  the  rank  of  lieutenant 
in  the  Navy  and  the  paymaster  vnth  the  rank 
of  "captain,  mounted, "  in  the  Army.  Under 
section  1466,  Revised  Statutes,  lieutenants  in 
the  Navy  rank  with  captains  in  the  Army, 
lieutenants  (junior  grade)  with  first  lieutenants, 
and  ensigns  with  second  lieutenants.  The 
lowest  grade  or  rank  in  the  pay  corps  of  the 
Army  is  that  of  captain,  who  is  given  by  law 
the  rank  of ' ' captain,  mounted. "  There  is  not, 
and  never  has  been,  any  rank  in  the  Pay  Corps 
of  the  Army  below  that  of  captain.  Accord- 
ingly, held,  "that  under  the  Navy  personnel  act 
of^March  3,  1899  section  13  (30  Stat.,  1007), 
providing  that  officers  of  the  ray  Corps  of  the 
Navy  shall  receive  the  same  pay  provided  by 
or  in  pursuance  of  law  for  the  officers  of  cor- 
responding rank  in  the  Army,  a  paymaster  in 
the  Navy  mth  the  rank  of  lieutenant  has  cor- 
responding rank  with  a  "captain,  mounted," 
in  the  Pay  Corps  of  the  Army,  and  that,  there 
being  no  corresponding  grade  in  the  Pay  Corps 
of  the  Army  to  that  of  assistant  paymaster  in 
the  Navy  with  the  rank  of  ensign,  or  lieutenant 
(junior  grade),  the  latter  corresponds  in  rank  to 
second  lieutenant  or  first  lieutenant  in  the 
Infantry  of  the  Army,  and  is  entitled  only  to 
Infantry  pay.  (Stevens  v.  U.  S.,  43  Ct.  Cls., 
484;  15  Comp.  Dec,  124.) 

Advancement  in  rank  and  promotion  of 
staff  oflicers. — See  note  to  section  1480, 
Revised  Statutes. 


Amendment  to  this  section  was  made  by  act  of 
March  3, 1883  (22  Stat.,  472),  which  changed 
the  title  of  "master"  to  "lieutenant 
(junior  grade)";  by  act  of  March  3,  1899, 
section  7  (30  Stat.,  1006),  which  changed 
the  words,  "the  relative  rank  of,"  to  read, 
"the  rank  of;"  by  act  of  July  11,  1919 
(41  Stat.,  147),  which  provided  that  "here- 
after the  Pay  Corps  shall  be  called  the 
Supply  Corps";  by  act  of  August  29,  1916 
(39  Stat.,  577),  which  created  the  rank  of 
rear  admiral  tor  pay  directors,  in  addition 
to  the  rank  of  captain,  the  distribution  to 
be  "one-half  pay  directors  with  the  rank  of 
rear  admiral  to  four  pay  directors  with  the 
rank  of  captain,  to  eight  pay  inspectors 
with  the  rank  of  commander,  to  eighty- 
seven  and  one-half  in  the  grades  below  pay 
inspector."     (See  note  to  sec.  1376,  R.  S.) 

By  act  of  August  29,  1916  (39  Stat.,  576),  it  was 
pro\dded  that  "officers  of  the  lower  grades 
of  the  *  *  *  Pay  Corps  *  *  * 
shall  be  advanced  in  rank  up  to  and  in- 
cluding the  rank  of  lieutenant  commander 
with  the  officers  of  the  line  with  whom  or 
next  after  whom  they  take  precedence 
under  existing  law.' ' 

act  of  July  1,  1918  (40  Stat.,  718),  it 
was  provided  that  the  advancement  of 
staff  officers  of  the  Navy  to  the  ranks  of 
commander,  captain,  and  rear  admiral 
shall  1)0  by  selection  in  the  manner  therein 
provided. 

Examinations  were  discontinued  for  promotion 
of  staff  officers  in  grade  by  act  of  May  22, 
1917,  section  20  (40  Stat.,  89),  wfiich  act 
and  section  also  reenacted  a  provision  in 
the  act  of  March  4,  1917  (39  Stat.,  1182), 
requiring  examinations  of  staff  officers  for 
advancement  in  rank. 

See  sections  1376-1389,  Revised  Statutes,  and 

notes  thereto,  concerning  the  organization 

of  the  Supply  Corps,  and  appointments, 

promotions,  etc.,  therein. 

Historical  note.-— See  note  to  section  1474, 

Revised  Statutes. 


By 


676 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1477. 


The  permanent  rank  of  rear  admiral 
on  the  active  list  of  the  Pay  Corps  (now 
Supply  Corps)  was  first  authorized  by  act 
of  June  24,  1910  (36  Stat.,  607)  which  pro- 
vided that  chiefs  of  bureaus  eligible  for  re- 
tirement after  30  years'  service  should  be 
entitled  to  the  permanent  rank,  title,  and 
emoluments  of  a  chief  of  bureau,  while  on  the 
active  list,  the  same  as  they  would  have  re- 
ceived if  retired  for  age  or  length  of  service; 
this  provision  was  repealed  by  act  of  August  22, 


1912  (37  Stat.,  328),  which  contained  a  proviso 
that  no  officer  who  had  received  the  benefits 
of  the  act  of  1910  should  be  deprived  thereof  on 
account  of  such  repeal;  prior  to  its  repeal  two 
officers  of  the  Pay  Corps,  Pajonaster  General 
Eustace  B.  Rogers  (file  22724-18)  and  Pay- 
master General  Thomas  J.  Cowie,  had  been 
permanently  commissioned  with  the  rank  of 
rear  admiral.  (See  note  to  sec.  421,  R.  S., 
under  "Rank  of  chiefs  of  bureaus.") 


Sec.  1476.    [Engineer  Corps.     Superseded.] 


This  section  provided  as  follo-ws: 

' '  Sec.  147G.  Officers  of  the  Engineer  Corps  on 
the  active  listshall  have  relative  rank  as  follows: 

"Of  the  chief  engineers,  ten  shall  have  the 
relative  rank  of  ca])tain,  fifteen  that  of  com- 
mander, and  forty-five  that  of  lieutenant- 
commander  or  lieutenant. 

"First  assistant  engineers  shall  have  the  rela- 
tive rank  of  lieutenant  or  master,  and  second 
assistant  engineers  that  of  master  or  ensign. " — 
(3  Mar.,  1871,  c.  117,  s.  7,  v.  16,  p.  536.  24  Feb.-, 
1874,  c.  35,  V.  18,  p.  17.) 

It  was  amended  by  act  of  February  24, 
1874,  section  1  (IS  Stat.,  17),  which  changed  the 
titleof  fhstassistant  engineer  to  passed  assistant 
engineer  and  changed  the  title  of  second  assist- 
ant engineer  to  assistant  engineer. 

It  was  superseded  by  act  of  August  5,  1882, 
section  1  (22  Stat.,  286),  which  provided  that 


the  active  list  of  the  Engineer  Corps  should 
thereafter  consist  of  10  chief  engineers  \vith  the 
relative  rank  of  captain,  15  chief  engineers 
with  the  relative  rank  of  commander,  45  chief 
engineers  with  the  relative  rank  of  lieutenant 
commander  or  lieutenant,  60  passed  assistant 
engineers  and  40  assistant  engineers  with  the 
relative  rank  for  each  as  previously  fixed  by 
law. 

The  act  of  March  3,  1883  (22  Stat.,  472), 
changed  the  title  of  "master"  to  "lieutenant 
(junior  grade). " 

The  act  of  March  3,  1899  (30  Stat.,  1004), 
abolished  the  Engineer  Corps  and  transferred 
the  members  thereof  to  the  line  of  the  Navy. 
(See  note  to  sec.  1390,  R.  S.)  The  appoint- 
ment and  assignment  of  line  officers  for  engi- 
neering duty  only  are  authorized  by  act  of 
August  29,  1916  (39  Stat.,  580). 


Sec.  1477.  [Constructors.     Superseded.] 


This  section  provided  as  follows: 

"Sec.  1477.  Of  the  naval  constructors,  two 
shall  have  the  relative  rank  of  captain,  three  of 
commander,  and  all  others  that  of  lieutenant- 
commander  or  lieutenant.  Assistant  naval 
constructors  shall  have  the  relative  rank  of 
lieutenant  or  master. " — (3  Mar.,  1871,  c.  117,  s. 
9,  v.  16,  p.  536.) 

It  was  amended  by  act  of  March  3,  1883 
(22  Stat.,  472).  which  changed  the  title  "mas- 
ter" to  "lieutenant  (junior  grade). " 

It  was  superseded  by  act  of  March  3,  1899, 
section  10  (30  Stat.,  1006),  which  provided 
''that  of  the  naval  constructors  five  shall  have 
the  rank  of  captain,  five  of  commander,  and 
all  others  that  of  lieutenant  commander  or 
lieutenant.  Assistant  naval  constructors  shall 
have  the  rank  of  lieutenant  or  lieutenant  (jun- 
ior grade). " 

The  act  of  August  29,  1916  (39  Stat., 
577),  created  the  rank  of  rear  admiral  for 
naval  constructors  in  addition  to  the  ranks 
theretofore  aathorized,  the  distribution  to  be 
"one-half  naval  constructors  with  the  rank  of 
rear  admiral  to  eight  and  one-half  naval  con- 
structors with  the  rank  of  captain,  to  fourteen 
naval  consti-uctors  with  the  rank  of  commander, 
to  seventy-one  naval  constructors  and  assistant 
naval  constructors  with  rank  below  com- 
mander." (See  note  to  sec.  1402,  R.  S.)  The 
permanent  rank  of  rear  admiral  on  the  active  list 
in  special  cases  was  previously  authorized  in 
the  Construction  Coi-ps  by  act  of  June  24,  1910 
(36  Stat.,  607),  which  provided  that  chiefs  of 
bureaus  eligible  for  retirement  after  30  years' 
service  should  be  entitled  to  the  permanent 
rank,  title,  and  emoluments  of  a  chief  of  bu- 


reau, while  on  the  active  list,  the  same  as  they 
would  have  received  if  retired  for  age  or  length 
of  service;  this  pro.ision  was  repealed  by  act 
of  August  22,  1912  (37  Stat.,  328),  which  con- 
tained a  pro  dso  that  no  officer  who  had  received 
the  benefits  of  the  act  of  1910  should  be  deprived 
thereof  on  accoimt  of  such  repeal;  prior  to  its 
repeal  one  officer  of  the  Construction  Corps, 
Chief  Constractor  Washington  L.  Capps,  had 
been  permanently  commslsioned  with  the  rank 
of  rear  admiral  (see  note  to  sec.  421,  R.  S., 
under  "  Rank  of  chiefs  of  bureaus  "). 

See  sections  1402-1404,  Revised  Stat- 
utes, and  notes  thereto,  concerning  the  organi- 
zation of  the  Construction  Corps,  and  appoint- 
ments, promotions,  etc.,  therein. 

Historical  note. — See  note  to  section  1474, 
Revised  Statutes. 

Advancement  in  rank  and  promotion  of 
staff  officers. — See  note  to  section  1480, 
Revised  Statutes. 

By  act  of  August  29,  1916  (39  Stat.,  576),  it 
was  provided  that  "officers  of  the  lower  grades 
of  the  *  *  *  Construction  Corps, _  *  *  * 
shall  be  advanced  in  rank  up  to  and  including 
the  rank  of  lieutenant  commander  with  the 
officers  of  the  line  with  whom  or  next  after 
whom  they  take  precedence  under  existing 
law. " 

By  act  of  July  1,  1918  (40  Stat.,  718),  it  was 
provided  that  the  advancement  of  staff  officers 
of  the  Navy  to  the  ranks  of  commander,  cap- 
tain, and  rear  admiral  shall  be  by  selection  in 
the  maimer  therein  provided. 

Examinations  were  discontinued  for  promo- 
tion of  staff  officers  in  giade  by  act  of  May  22, 
1917,  section  20  (40  Stat.,  89),  which  act  and 


677 


Sec.  1478. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


section  also  reeiiactod  a  ])rovi8ion  in  the  act  of 
March  4,  1917  (3i)  Stat..  1182).  roquirin?  exami- 
nations of  staff  officers  for  advancement  in  rank. 
Rank  of  naval  constructors  held  to  be 
their  grade. — Naval  constructors  belong  to 
the  staff;  nevertheless  they  have  been  treated 
as  eligible  under  section  42.3,  Revised  Statutes, 
for  apjiointment  as  Chief  of  the  Bureau  of  Con- 
str.ution  and  Repair,  which  section  provided 
that  the  chief  of  the  bureau  shall  be  appointed 
from  the  list  of  othcers  of  the  Navy  "not  below 
the  grade  of  commander.  "  and  sliall  be  a  skill- 
ful naval  constnictor.     Thus  under  the  prac- 


tical inter])rotation  of  section  42.3.  naval  con- 
structors are  treated  as  officers  of  the  Navy,  and 
their  relative  rank  as  the  actual  rank  or  grade 
required  by  the  section;  but  itia  to  be  observed 
that  in  no  other  way  could  compliance  be  had 
Avith  the  explicit  requirement  that  the  officer 
appointed  Chief  of  the  Burea\i  of  Construction 
and  Repair  bo  a  "  skillfid  naval  constructor.  " 
Faults  in  expression  were  disregarded  in  order 
to  carry  out  the  manifest  intention  of  the  law- 
maker." (22  Op.  Atty.  Gen.,  47.  As  to  dif- 
ference between  rank  and  grade,  see  notes  to 
sees.  421,  422,  423,  1362,  14.57,  and  1479,  R.  S.) 


Sec,  1478.  [Civil  engineers.     Superseded.] 


This  section  provided  as  follows: 

"  Sec.  1478.  Civil  engineers  shall  have  such 
relative  rank  as  the  President  may  fix."— (3 
Mar.,  1871,  c.  117,  s.  9,  v.  16,  p.  536.) 

It  was  amended  by  act  of  Marcn  3,  1899, 
section  7  (30  Stat.,  1006),  which  changed  the 
words,  "the  relative  rank  of,"  as  contained  in 
all  sections  of  the  Revised  Statutes  defining  the 
rank  of  officers  or  positions  in  the  Navn'.  to  read, 
"the  rank  of";  and  by  act  of  March  3,  1903  (32 
Stat.,  1197),  which  provided  for  the  appoint- 
ment of  12  assistant  civil  engineers,  "of  whom 
six  shall  have  the  rank  of  lieutenant  (junior 
grade)  and  six  the  rank  of  ensign." 

It  was  superseded  by  act  of  August  29, 
1916  (39  Stat.,  577).  which  created  the  rank  of 
rear  admiral  for  civil  engineers,  in  addition  to 
the  ranks  theretofore  authorized,  the  distribu- 
tion to  be  "one-half  civil  engineers  with  the 
rank  of  rear  admiral  to  five  and  one-half  civil 
engineers  with  the  rank  of  captain,  to  fourteen 
civil  engineers  with  the  rank  of  commander,  to 
eighty  civil  engineers  and  assistant  civil  engi- 
neers with  the  rank  below  commander."  The 
permanent  rank  of  rear  admiral  on  the  active 
list  of  the  Civil  Engineer  Corps  had  previously 
been  authorized  for  the  benefit  of  Commander 
H.  H.  Rousseau  by  act  of  March  4,  1915  (38 
Stat.,  1191),  which  same  act  also  extended  the 
thanks  of  Congress  to  said  officer  for  distin- 
guished service  rendered  by  him  as  a  member 
of  the  Isthmian  Canal  Commission  in  construct- 
ing the  Panama  Canal. 

By  act  of  March  4,  1917  (39  Stat.,  1184),  it  was 
provided  that  "officers  of  the  Corps  of  Civil 
Engineers  hereafter  appointed  shall,  from  the 
date  of  their  original  appointment,  take  rank 
and  precedence  with  lieutenants  (junior 
grade)." 

See  note  to  section  1413,  Revised 
Statutes,  as  to  organization  of  Civil  Engineer 
Corps,  and  appointments,  promotions,  etc., 
therein. 

Advancement  in  rank  and  promotion  of 
staff  officers. — See  note  to  section  1480, 
Revised  Statutes. 

By  act  of  August  29,  1916  (39  Stat.,  576),  it 
was  provided  that  "officers  of  the  lower  grades 
of  the  *  *  *  Corps  of  Civil  Engineers  shall 
be  advanced  in  rank  up  to  and  including  the 
rank  of  lieutenant  commander  with  the  officers 


of  the  line  ^vith  whom  or  next  after  whom  they 
take  precedence  under  existing  law." 

By  act  of  July  1,  1918  (40  Stat.,  718),  it  was 
provided  that  the  adv^ancement  of  staff  officers 
of  the  Navy  to  the  ranks  of  commander,  cap- 
tain, and  rear  admiral  shall  be  by  selection  in 
the  manner  therein  provided. 

By  act  of  March  3,  1903  (32  Stat.,  1197),  it 
was  provided  that  "promotions  in  the  Corps  of 
(ivil  Engineers  shall  be  after  such  examina- 
tion as  the  Secretary  of  the  Navy  may  pre- 
scribe." Examinations  were  discontinued  for 
promotion  of  staff  officers  in  grade  by  act  of 
May  22,  1917,  section  20  (40  Stat.,  89),  which 
act  and  section  also  reenacted  a  provision  in 
the  act  of  March  4,  1917  (.39  Stat.,  1182),  requir- 
ing examinations  of  staff  officers  for  advance- 
ment in  rank. 

Historical  note. — See  note  to  section  1474, 
Revised  Statutes. 

By  section  1478,  Revised  Statutes,  which  is  a 
reenactment  of  the  statute  of  March  3,  1871, 
"civil  engineers  shall  have  such  relative  rank 
as  the  President  may  fix."  An  examination 
of  the  original  statute  shows  that  the  authority 
was  given  to  the  President  "in  his  discretion." 
This  discretion  has  never  been  exercised  and 
no  relative  rank  has  been  assigned  to  these 
officers.  It  is  difficult  to  conceiv-e  that  those 
can  be  considered  as  officers  in  the  Navy  who 
have  no  rank  by  which  their  relation  to  the 
other  officers,  or  to  the  men,  can  be  determined. 
In  the  absence  of  stich  action  by  the  President 
Held  that  civil  engineers  are  civil  officers. 
(16  Op.  Atty.  Gen.,  203.) 

The  authority  of  the  President  under  the 
act  of  March  3,  1871  (sec.  1478,  R.  S.)_,  '/to  de- 
termine and  fix  the  relativ^e  rank  of  civil  engi- 
neers," was  not  exercised  until  February  24, 
1881,  when  their  rank  was  fixed  by  him  as 
follows:  One  with  the  relativ-e  rank  of  captain, 
two  ^\ith  the  relative  rank  of  commander,  three 
with  the  relative  rank  of  lieutenant  commander, 
and  four  with  the  relative  rank  of  lieutenant, 
which  action  was  promulgated  by  a  general 
order  issued  by  the  Secretarv  on  that  date. 
(17  Op.  Atty.  Gen.,  126,  holding  that  civil 
engineers  are  officers  of  the  Navy  and  eligible 
for  retirement  as  such.  The  general  order 
referred  toisG.  O.  No.  263,  Feb.  24,  1881.) 

F'or  other  cases  as  to  status  of  civil  engineers, 
see  note  to  section  1413,  Revised  Statutes. 


678 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1479. 


Sec.  1479.  [Chaplains.     Superseded.] 

This  section  provided  as  follo-ws: 

"Sec.  1479.  Chaplains  shall  have  relative 
rank  as  follovi's;  Four,  the  relative  rank  of  cap- 
tain; seven,  that  of  commander;  and  not  more 
than  seven,  that  of  lieutenant-commander  or 
lieutenant."— (3  Mar.,  1871,  c.  117,  s.  9,  v.  16, 
p.  536.) 

It  was  amended  by  act  of  March  3,  1899, 
section  7  (30  Stat.,  1006),  which  changed  the 
words  "the  relative  rank  of"  to  read  "the 
rank  of  " ;  by  section  13  of  the  same  act  ( 30  Stat. , 
1007),  which  provided  that  "naval  chaplains, 
who  do  not  possess  relative  rank,  shall  have  the 
rank  of  lieutenant  in  the  Navy";  and  by  act 
of  June  29,  1906  (34  Stat.,  554),  which  provided 
that  "naval  chaplains  hereafter  appointed  shall 
have  the  rank,  pay,  and  allowances  of  lieu- 
tenant (jimior  grade)  in  the  Na\'y  until  they 
shall  have  completed  seven  years  of  sei'vice, 
when  they  shall  have  the  rank,  pay,  and  allow- 
ances of  lieutenant  in  the  Navy ;  and  lieutenants 
shall  be  promoted,  whenever  vacancies  occur, 
to  the  grade  of  lieutenant  commander,  which 
shall  consist  of  five  numbers,  and  when  so  pro- 
moted shall  receive  the  rank,  pay,  and  allow- 
ances of  lieutenant  commander  in  the  Navy: 
Provided  further,  That  nothing  herein  contained 
shall  be  held  or  construed  to  increase  the  nmn- 
ber  of  chaplains  as  now  authorized  by  law  or  to 
reduce  the  rank  or  pay  of  any  now  serving." 

It  was  superseded  by  act  of  June  30,  1914 
(38  Stat.,_  404),  which  fixed  the  '^  total  number 
of  chaplains  and  acting  chaplains  in  the  Navy, ' ' 
and  provided  that ' '  of  the  total  number  of  chap- 
lains and  acting  chaplains  herein  authorized 
ten  per  centum  thereof  shall  have  the  rank  of 
captain  in  the  Navy,  twenty  per  centum  the 
rank  of  commander,  twenty  per  centum  the 
rank  of  lieutenant  commander,  and  the  remain- 
der to  have  the  rank  of  lieutenants  and  lieu- 
tenants, junior  grade." 

The  same  act  (38  Stat.,  403,  404)  provided 
that  "while  so  ser\ang  acting  chaplains  shall 
have  the  rank,  pay,  and  allowances  of  lieuten- 
ant, junior  grade,  in  the  Navy.  After  three 
years'  sea  service  on  board  ship  each  acting 
chaplain  before  receiving  a  commission  in  the 
Navy  shall  establish  to  the  satisfaction  of  the 
Secretary  of  the  Navy  by  examination  by  a 
board  of  chaplains  and  medical  officers  of  the 
Navy  hie  physical,  mental,  moral,  and  profes- 
sional fitness  to  perform  the  duties  of  chaplain 
in  the  Navy,  and  if  found  so  qualified,  shall 
be  commissioned  a  chaplain  in  the  Navy  with 
the  rank  of  lieutenant,  junior  grade.  *  *  * 
Naval  chaplains  hereafter  commissioned  from 
acting  chaplains  shall  have  the  rank,  pay,  and 
allowances  of  lieutenant,  junior  grade,  m  the 
Navy  until  they  shall  have  completed  four 
years'  sei^dce  in  that  grade,  when,  subject  to 
examination  as  above  prescribed,  they  shall 
have  the  rank,  pay,  and  allowances  of  lieu- 
tentvut  in  the  Navy,  and  chaplains  with  the 
rank  of  lieutenant  shall  have  at  least  four  years' 
service  in  that  grade  before  promotion  to  the 
grade  of  lieutenant  commander,  after  which 
service,  chaplains  shall  be  promoted  as  vacan- 
cies occur  to  the  grades  of  lieutenant  com- 
mander, commander,  and  captain." 


The  same  act  (38  Stat.,  404)  pro\'ided  "that 
no  provision  of  this  section  shall  operate  to 
reduce  the  rank,  pay,  or  allowances  that  would 
have  been  received  by  any  person  in  the  Navy 
except  for  the  passage  of  this  section,  and  that 
all  laws  or  parts  of  laws  inconsistent  with  the 
provisions  of  this  section  be,  and  the  same  are 
hereby,  repealed." 

Advancement  in  rank  and  promotion  of 
chaplains. — See  note  to  section  1480,  Ile\ised 
Statutes. 

By  act  of  July  1,  1918  (40  Stat.,  718),  it  was 
provided  that  the  advancement  of  staff  officers 
of  the  Navy  to  the  ranks  of  commander,  captain, 
and  rear  admiral  shall  be  by  selection  in  the 
manner  therein  provided. 

Examinations  were  discontinued  for  pro- 
motion of  staff  ofiicers  in  grade  by  act  of  May 
22,  1917,  section  20  (40  Stat.,  89),  which  act 
and  section  also  reenacted  a  provision  in  the  act 
of  March  4,  1917  (39  Stat.,  1182),  requiring 
examinations  of  staff  officers  for  advancement 
in  rank. 

Chaplains  with  the  rank  of  lieutenant  and 
chaplains  with  the  rank  of  lieutenant  (junior 
grade)  advanced  since  June  30,  1914  to  the  rank 
of  lieutenant  shall  not  be  advanced  in  rank  to 
lieutenant  commander  untO  they  have  served 
at  least  four  years  with  the  rank  of  lieutenant; 
except  that  this  requirement  of  a  minimum  of 
four  years'  ser\ice  with  the  rank  of  lieutenant 
shall  not  operate  to  reduce  the  rank,  pay  or 
allowances  that  would  have  been  received  by 
any  person  in  the  Na\y  except  for  the  passage 
of  the  section  relating  to  chaplains  in  the  act  of 
June  30,  1914.  This  prohibition  as  to  promo- 
tion being  retarded  applies  only  to  those  chap- 
lains in  the  service  on  June  30,  1914.  (File 
15721-7,  Aug.  13,  1914.) 

Naval  chaplains  commissioned  after  June  30, 
1914,  from  acting  chaplains,  after  at  least  four 
years'  serAice  in  the  rank  of  lieutenant  shall  be 
promoted  to  the  rank  of  lieutenant  commander, 
subject  to  the  restrictions  placed  on  the  number 
of  ofiicers  in  the  Corps  of  Chaplains  who  may 
have  the  rank  of  Lieutenant  commander. 
Thereafter  they  are  promoted  to  the  higher 
authorized  ranks  aa  vacancies  occur  therein 
without  restriction  as  to  the  period  of  service  in 
the  intervening  ranks  before  such  advance- 
ments.    (File  15721-7,  Aug.  13,  1914.) 

The  act  of  June  30,  1914,  makes  no  proAision 
for  the  advancement  of  chaplains  with  the 
rank  of  lieutenant  (junior  grade)  who  were  in 
the  ser\ice  on  that  date;  the  requirement  of 
four  years'  ser\ice  in  the  grade  of  chaplain  with 
the  rank  of  lieutenant  (junior  grade)  applies 
only  to  those  chaplains  thereafter  commissioned 
from  acting  chaplains.  Said  act,  however, 
provides  for  the  advancement  of  chaplains  with 
the  rank  of  lieutenant  without  regard  to  the 
date  of  their  appointment  as  such.  The 
advancement  of  chaplains  with  the  rank  of 
lieutenant  (junior  gi-ade)  in  the  serA-ice  on  June 
30,  1914,  is  governed  by  the  proAisions  of  the 
laws  in  force  prior  to  that  date,  which  are  not 
modified  in  this  respect  by  the  said  act  of  June 
30,  1914.  The  pro\ision  that  nothing  in  said 
enactment  shall  operate  to  reduce  the  rank, 


679 


Sec.  1480. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


etc.,  that  would  have  been  received  by  any 
person  in  the  NaAy  except  for  the  passage  there- 
of ])revents  advancement  from  being  retarded, 
but  does  not  pro^^de  for  accelerating  advance- 
ment in  rank  to  lieutenant  in  their  cases.  In 
other  words,  Oiey  are  requii'cd  lo  serve  seven 
years  as  cliaplain  with  the  rank  of  lieutenant 
(junior  grade),  as  required  by  the  act  of  Jime  29, 
1906,  before  being  advanced  in  rank  to  lieuten- 
ant.   (File  15721-7,  Aug.  13,  1914.) 

The  reqiiirement  of  four  years'  service  with 
the  rank  of  lieutenant  prior  to  advancement  to 
the  rank  of  lieutenant  commander  is  not  waived 
in  order  that  vacancies  created  by  reason  of  the 
passage  of  the  act  of  June  30,  1914,  may  be  im- 
mediately tilled,  but  it  is  waived  where  its 
effect  would  be  to  delay  promotions  that  woidd 
have  been  made  iiTespective  of  that  act,  such  as 
to  fill  vacancies  created  by  death,  resignation  or 
retirement  of  officers  occupying  the  limited 
number  of  positions.  (File  15721-7,  Aug.  13, 
1914.) 

Chaplains  with  the  rank  of  lieutenant  com- 
mander in  the  service  on  June  30,  1914,  are 
advanced  in  rank  to  commander  and  captain  as 
vacancies  occur  in  those  ranks,  without  regard 
to  length  of  ser\'ice  with  the  rank  of  commander 
or  lieutenant  commander.  (File  15721-7,  Aug. 
13,  1914.) 

The  requirement  of  fovu"  years'  service  in 
the  grade  of  chaplain  with  the  rank  of  lieuten- 
ant before  promotion  to  the  grade  of  chaplain 
with  the  rank  of  lieutenant  commander,  should 
not  be  held  to  retard  the  promotion  of  chaplains 
in  the  serAice  on  June  30,  1914,  who  have  com- 
pleted seven  years  in  the  rank  of  lieutenant 
(junior  grade),  as  required  by  the  act  of  June 
29,  1906,  such  promotion  being  to  fill  vacancies 
in  the  higher  ranks  in  the  grade  of  chaplain; 
because  the  act  of  June  30,  1914,  provides  that 
no  pro\'ision  thereof  shall  operate  to  reduce  the 
rank,  pay  or  allowances  that  might  have  been 
received  by  any  person  in  the  I^&yj  except  for 
the  passage  of  the  chaplain  section  therein. 
However,  a  chaplain  would  not  be  entitled  to 
promotion  to  any  rank  above  that  of  lieutenant, 
even  after  four  years'  service  as  a  lieutenant, 
unless  a  vacancy  occmred  in  the  higher  rank. 
Although  the  act  of  August  29,  1916,  changed 
the  retiiing  age  from  62  to  64  years,  and  if  this 
had  not  been  done  a  vacancy  would  have  been 
created  by  the  retirement  of  a  chaplain  for  age 
upon  his  reaching  62  years,  nevertheless  the 

Sec.  1480.  [Professors  of  Mathematics.  Promotions  in  staff  corps.]  Pro- 
fessors of  mathematics  shall  have  relative  rank  as  follows :  Tliree,  the  relative 
rank  of  captain;  four,  that  of  commander;  and  five,  that  of  lieutenant-com- 
mander or  lieutenant.  [The  grades  established  in  the  six  preceding  sections 
for  the  staff  corps  of  the  Navy  shall  be  filled  by  appointment  from  the 
highest  members  in  each  corps,  according  to  seniority;  and  new  commis- 
sions shall  be  issued  to  the  officers  so  appointed,  in  which  the  titles  and 
grades  established  in  said  sections  shall  be  inserted;  and  no  existing  com- 
mission shall  bo  vacated  in  the  said  several  staff  coi'ps,  except  by  the  issue  of 
the  new  commissions  required  by  the  provisions  of  this  section;  and  no  officer 
shall  be  reduced  in  rank  or  lose  seniority  in  his  own  corj^s  by  any  change 


proxision  in  said  act  of  August  29,  1916,  that 
"nothing  contained  in  this  act  shall  be  con- 
strued to  reduce  the  rank,  pay,  or  allowances  of 
any  officer  in  the  Navy  or  Marine  Corps  as  now 
pro"vided  by  law,''  does  not  entitle  a  junior  ofl^- 
cer  to  promotion  in  rank  which  he  would  ha^'e 
received  had  the  senior  officer  been  retiied  for 
age  at  62  years.  Onthedateof  said  act  of  August 
29,  1916,  the  chaplain  in  question  had  the  rank, 
pay,  and  allowances  of  lieutenant,  noneof  which 
has  been  reduced  by  the  operation  of  said  act. 
The  act  of  August  29,  1916,  changing  the  retire- 
ment age,  may  have  operated  to  retard  his  ad- 
vancement by  delaying  the  retirement  of  the 
senior  chaplain  for  age,  but  it  did  not  operate  to 
reduce  the  rank,  pay,  and  allowances  to  which 
he  was  then  or  is  now  entitled  by  law.  Accord- 
ingly, held  that  the  chaplain  in  question  is  not 
entitled  to  promotion  to  the  rank  of  lieutenant 
commander,  and -will  not  be  entitled  to  such  ad- 
vancement until  after  a  vacancy  occurs  in  said 
rank  for  which  he  qualifies  on  examination  as 
required  by  section  20  of  the  act  of  May  22,  1917. 
(File  15721-20,  Sept.  24,  1918.) 

"Grade"  and  "rank"  in  the  Chaplain 
Corps. — The  word  "grade"  as  used  in  the 
act  of  June  30,  1914,  is  an  obvious  error.  There 
are  but  two  gi'ades  in  the  Corps  of  Chaplains; 
first,  the  gi'ade  of  chaplain,  in  which  officers  are 
distributed  in  the  "ranks"  of  captain,  com- 
mander, lieutenant  commander,  lieutenant, 
and  lieutenant  (junior  gi'ade);  and  secondly, 
the  grade  of  acting  chaplain,  in  which  the  offi- 
cers have  the  "rank"  of  lieutenant  (junior 
grade).  It  is  necessary  to  read  the  word 
"grade"  as  "rank"  in  said  act  in  order  to  con- 
form to  the  well-established  meaning  and  usage 
of  the  words  "grade"  and  "rank."  (File 
15721-7,  Aug.  13,  1914.  For  other  cases  con- 
cerning "rank"  and  "grade"  see  notes  to  sees. 
421,  422,  423,  1362,  1457,  1477,  and  1480,  R.  S.) 

Pay  of  chaplains. — See  act  of  August  29, 
1916  (39  Stat.,  581),  pro^dding  that  "hereafter 
all  commissioned  officers  of  the  active  list  of  the 
active  list  of  the  Navy  shall  receive  the  same 
pay  and  allowances  according  to  rank  and 
length  of  serAdce."  It  had  pre^vdously  been 
provided  by  act  of  May  13,  1908  (35  Stat.,  128), 
that  "the  pay  and  allowances  of  chaplains  in 
the  NaA'y  shall  in  no  case  exceed  that  provided 
for  lieutenant  commanders."  The  pay  of  the 
various  ranks  in  the  Navy  is  proAdded  for  by  act 
of  May  13, 1908  (53  Stat. ,  127).  See  note  to  sec- 
tion 1556,  Revised  Statutes. 


680 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1480. 


which  may  be  required  under  the  provisions  of  the  said  six  preceding  sections : 
Provided,  That  the  issuing  of  a  new  appointment  and  commission  to  any  officer 
of  the  pay  corps  under  the  provisions  of  this  section  shall  not  affect  or  annul 
any  existing  bond,  but  the  same  shall  remain  in  force,  and  apply  to  such  new 
appointment  and  commission.] — (31  May,  1872,  c.  240,  s.  1,  v.  17,  p.  192.  27 
Feb.,  1877,  c.  69,  v.  19,  f.  244.) 

Army.  The  motion  was  decisively  defeated 
(citing  Ferrand  Records,  Federal  Convention, 
Vol.  II,  p.  405).  "Argument  is  unnecessary  to 
demonstrate  how  idle  it  would  have  been  to 
have  conferred  the  power  on  the  President  if, 
in  practice,  it  might  have  been  taken  from  him 
by  statute,  as  would  be  the  case  if  section  1480, 
as  amended,  were  to  be  applied.  (Hamilton 
in  the  Federalist,  No.  76;  Story  on  the  Consti- 
tution, Vol.  II,  sees.  1526-1533;  and  Judge 
Cooley's  note  to  the  last  section.)  Moreover 
the  alleged  right  to  a  statutory  promotion 
could  never  be  enforced  by  mandamus  or  in- 
junction, if  the  President  should  refuse  to  nom- 
inate, or  the  Senate  should  refuse  to  confirm 
the  senior  officer.  "     (31  Op.  Atty.  Gen.,  80.) 

The  provisions  of  section  1480,  Revised  Stat- 
utes, as  amended,  considered,  and  AeZrf(])  that 
advancement  of  staff  officers  in  the  Medical, 
Pay,  and  Construction  Corps,  and  Corps  of  Civil 
Engineers,  from  the  rank  of  captain  to  the  rank 
of  rear  admiral,  may  be  made  upon  selection 
by  the  President,  whether  or  not  such  advance- 
ment be  regarded  as  an  advancement  in  rank 
only,  or  as  an  advancement  in  grade;  and  (2) 
that  the  promotion  of  all  staff  officers  of  tne 
Navy  to  higher  offices  may  be  made  upon  selec- 
tion by  the  President.  (31  Op.  Atty.  Gen.,  80. 
Note  that  this  opinion  was  rendered  by  the 
Attorney  General  prior  to  the  act  of  July  1, 
1918,  above  cited,  authorizing  promotion  by 
selection  to  certain  higher  ranks  in  the  staff 
corps.) 

For  other  cases,  see  note  to  section  1458,  Re- 
vised Statutes;  and  see  cases  noted  under  Con- 
stitution, Article  II,  section  2,  clause  2,  "III. 
Power  of  Congress,"  and  "IV.  Statutory  re- 
quirements and  qualifications;"  see  also  note 
to  section  1372,  Revised  Statutes,  "Promotion 
by  seniority  and  not  competitive  examination.  " 


Amendment  to  this  section  as  originally  em- 
bodied in  the  Revised  Statutes  was  made 
by  act  of  February  27,  1877  (19_Stat.,  244), 
which  added  thereto  the  portion  printed 
in  brackets  above,  and  which  in  this  form 
was  embodied  in  the  second  edition  of  the 
Revised   Statutes.     (See   "Introduction," 
ante,  under  "II.The  Revised  Statutes.") 
Amendment  to  this  section  was  also  made  by 
act  of  March  3,  1899,  section  7  (30  Stat., 
1006),  which  changed  the  words,  "the  rel- 
ative rank  of,"  to    read,    "the  rank  of;" 
and  by  act  of  August  29,  1916  (39  Stat., 
577),  which  provided  that  "hereafter  no 
fm-ther  appointments  shall  be  made  to  the 
Corps  of  Professors  of  Mathematics,   and 
that  corps  shall  cease  to  exist  upon  the 
death,  resignation,  or  dismissal  of  the  of- 
ficers now  carried  in  that  corps  on  the  ac- 
tive and  retii-ed  lists  of  the  Na\^. " 
By  act  of  July  1,  1918  (40  Stat.,  718),  it  was 
provided  that  the  advancement  of  staff  of- 
ficers of  the  Navy  to  the  ranks  of  comman- 
der, captain,  and  rear  admiral,  shall  be  by 
selection  in  the  manner  therein  provided. 
Examinations     were     discontinued    for    pro- 
motion of  staff  officers  in  grade  by  act  of 
May  22,   1917,  section  20  (40  Stat.,  89), 
which  act    and  section  also  reenacted  a 
provision  in  the  act  of  March  4,  1917  (39 
Stat.,    1182),    requiring    examinations    of 
staff  officers  for  advancement  in  rank. 
"Pay  Corps  "  is  to  be  called  the  "Supply  Corps,  " 
by  act  of  July  11,  1919  (41  Stat.,  147).    As 
to  bonds  of  officers  in  the  Supply  Corps,  see 
note  to  section  1383,  Revised  Statutes. 
See  notes  to  sections  1399-1401,  Revised  Stat- 
utes, concerning  organization  of   Corps  of 
Professors  of  Mathematics,  duties  of  profes- 
sors of  mathematics,  etc. 
Constitutionality    of  amended,  section 
1480. — Section  1480  as  amended  being  appli- 
cable to  advancement  from  grade  to  grade  in  the 
staff  corps,  it  seems  plain  that  Congress  sought 
thereby  to  restrict  the  President  to  the  nomina- 
tii:)n  of  a  single  person  of  its  own  choosing,  and 
this  without  regard  to  his  comparative  fitness 
for  the  larger  responsibilities  of  the  higher  of- 
fice.    The  attempt  so  to  do  is  in  opposition  to 
that  provision  of  the  Constitution  (Art.  II,  sec. 
2),  requiring  him  to  nominate  and  by  and  with 
the  adviceandconsentof  the  Senate  to  appoint. 
(31.  Op.  Atty.  Gen.,  80,  citing  and  affirming  30 
Op.  Atty.  Gen.,  177  and  29  Op.  Atty.  Gen.,  254.) 
The  President's  power  in  regard  to  appoint- 
ments and  the  Senate's  check  thereon  was  ex- 
haustively canvassed  in  the  Constitutional  Con- 
vention.    It  was  at  one  time  moved  that  his 
power  be  restricted  to  "those  cases  not  other- 
wise proAdded  for  by  this  Constitution  or  by 
law. "     The  very  ground  urged  in  support  of 
the  motion  was  that  otherwise  the  President 
would  be  given  too  much  control  over  the 


'Grades    established,"    meaning    of. — 

The  reference  in  section  1480  to  "the  gi'ades 
established"  in  the  six  preceding  sections  for 
the  staff  corps  of  the  Navy  is  the  identical 
language  of  the  ninth  section  of  the  act  of  March 
3,_  1871  (16  Stat.,  536),  which  refers  to  the  pre- 
vious sections  of  that  act  in  which  grade  and 
relative  rank  in  the  staff  department  of  the 
Na\'y  are  created  together  uno  fiatu;  whereas 
in  the  Revised  Statutes  the  two  subjects  are 
treated  in  distinct  chapters.  Tliis  effectually 
disposes  of  the  argument  that  there  was  any 
establishing  of  grades  in  the  sections  assigning 
relative  rank;  the  mistake  of  the  revisers  in 
using  the  expression,  "grades  established,'' 
being  too  evident  to  admit  of  doubt.  Accord- 
ingly, held  that  in  the  organization  of  the  ]\led- 
ical  Corps  of  the  Navy  there  is  no  such  grade  as 
passed  assistant  siu'geon,  but  tliat  passed 
assistant  surgeon  is  merely  a  class  in  the  grade 
of  assistant  surgeon,  notwithstanding  that 
section  1480  as  amended  refers  to  "grades 
established"  in  the  six  preceding  sections,  and 


681 


Sec.  1480. 


Pi.  2.  REVISED  STATUTES. 


The  Navy. 


tliat  section  1474  pro\'ides  for  passed  assistant 
surgeons  with  tho  relative  rank  of  "lieutenant 
or  master."  (19  Op.  Atty.  Gen.,  109;  see  note 
to  sec.  1368,  R.  S.,.  as  to  status  of  passed  assistant 
surgeons.) 

Bank  of  rear  admiral  in  the  staff  corps 
not  a  new  "grade." — ^The  act  of  August  29, 
1916  (39  Stat.,  o77),  proA-iding  for  the  rank  of 
rear  admiral  in  certain  staff  corps  of  the  Navy, 
is  regarded  as  creating  a  new  rank  of  rear 
admiral  within  the  old  grade  of,  e.  g.,  medical 
director,  rather  than  as  creating  a  now  grade 
of,  e.  g.,  "medical  director  ^vith  the  rank  of 
rear  admiral."  Accordingly,  section  1480, 
Re^^8ed  Statutes,  as  amended,  because  in  terms 
api)licable  to  such  old  grade,  would  apply  to 
advancement  thereto  from  a  lower  grade. 
(31  Op.  Atty.  Gen.,  80,  noted  above,  holding 
imconstitutional  the  requirement  that  promo- 
tions be  made  by  seniority.) 

The  act  of  August  29,  1916  (39  Stat.,  577), 
did  not  create  new  grades.  The  words  in  that 
act,  "the  total  number  of  commissioned  officers 
*  *  *  shall  be  distribiited  in  the  various 
grades,"  etc.,  while  apt  for  distribution  among 
existing,  are  inapt  for  the  creation  of  new 
grades.    (31  Op.  Atty.  Gen.,  80.) 

In  each  of  the  16  different  grades  created  by 
sections  1474-1479,  inclusive,  there  was  a  sepa- 
rate and  distinctive  word  title  for  each.  Had 
the  purpose  been  to  create  a  new  grade  in  the 
act  of  1916,  a  new  word  title  other  than,  e.  g., 
"medical  director,"  such  as,  for  example, 
"siu-geon  general,"  would  have  been  used. 
(31  Op.  Atty.  Gen.,  80.) 

Advancement  in  rank  without  change  of 
grade. — Section  1480,  Revised  Statutes,  being 
limited  to  grade  can  not  affect  advancement  in 
rank;  and  because  it  is  limited  to  those  grades 
established  by  sections  1474-1479,  Rexdsed 
Statutes,  it  can  not  affect  advancement  in  the 
staff  corjjs  from  captain  to  rear  admiral.  (31  Op. 
Atty.  Gen.,  80.) 

\\Tienever  Congress  creates  a  new  grade  or 
rank,  without  making  any  provision  for  filling 
it,  the  selection,  in  the  case  of  a  vacancy  in 
grade,  is  made  by  the  President  by  and  with 
the  ach-ice  and  consent  of  the  Senate  (citing 
29  Op.  Atty.  Gen.,  117);  while  in  the  case  of  a 
vacancy  in  rank,  it  is  made  by  the  President 
as  commander  in  chief  of  the  Navy,  without 
any  action  on  the  part  of  the  Senate.  (Citing 
Gen.  Ainsworth's  case,  22 Op.  Atty.  Gen.,  480.) 
Neither  in  the  act  of  August  29,  1910,  nor  in 
the  old  law  is  there  any  provision  for  advance- 
ment from  the  rank  of  captain  to  that  of  rear 
admiral  in  any  of  the  various  staff  corps;  and 
the  function  of  selection  in  every  such  case 
must  be  exercised  by  the  President  alone  under 
the  rule  stated.     (31  Op.  Atty.  Gen.,  80.) 

Under  section  1480,  as  amended,  it  is  not 
necessiiry  to  issue  new  commissions  or  appoint- 
ments to  staff  officers  receiving  an  advance  in 
rank  within  the  same  grade;  the  rank  of  such 
officers  changes  with  their  seniority  in  grade, 
and  as  they  hold  the  same  office,  such  change 
in  rank  may  be  indicated  by  a  notification 
from  the  Secretaiy  of  the  Navy.  (20  Op.  Atty. 
Gen.,  358;  see  also  10  Op.  Atty.  Gen.,  652;  and 
see  note  to  Constitution,  Art.  II,  sec.  3,  under 
"II.  Duty  to  commission  officera.") 


The  law  rcqiures  that  commissions  shall  be 
issued  to  officers  ai)j)ointed  or  promoted  to 
different  offices  or  grades  in  the  Pay  Corps  of 
the  Navy,  but  there  is  no  law  wliich  requires 
a  commission  to  be  issued  on  mere  change  of 
rank  without  change  of  office  (citing  20  Op. 
Atty.  Gen.,  358,  363).  The  mere  advancement 
in  rank  without  a  change  in  office  does  not 
create  an  office  and  is  not  accomplished  by  an 
exercise  of  the  appointing  power.  (17  Comp. 
Dec,  255.) 

In  the  absence  of  a  specific  law  for  the 
advancement  of  a  pajTnaster_  of  the  Navy 
from  one  rank  to  another  within  the  grade  of 
payrnaster,  such  advancement  is  primarily 
within  the  discretion  of  the  Executive,  limited 
by  the  rule  of  seniority  (sec.  1480)  and  subject 
to  the  consent  of  the  Senate  (sec.  1506,  amend- 
ed). This  discretion  has  been  exercised  under 
a  rule  of  many  years'  practice  in  determining 
the  date  when  such  officer  attains  a  higher  rank 
by  the  laws  providing  for  precedence  of  officers 
of  the  line  and  staff  corps  (sees.  1485,  1486). 
The  staff  officer  takes  precedence  next  below 
a  certain  line  officer  of  the  same  credited 
service.  This  line  officer  is  known  in  the 
service  as  the  staff  officer's  "running  mate"; 
and  by  the  practice  referred  to  when  the  "run- 
ning mate"  is  regularly  promoted  or  fails  in 
examination  the  staff  officer  is  advanced  to  the 
higher  rank.  When  the  date  for  advancement 
of  a  paymaster  with  the  rank  of  lieutenant  to 
the  rank  of  lieutenant  commander  has  been 
determined  by  the  rule  aforesaid  and  his 
advancement  to  that  rank  on  the  date  ascer- 
tained has  been  consented  to  by  the  Senate,  he 
becomes  entitled  to  the  pay  and  emoliunents 
of  the  higher  rank  from  the  date  he  so  took 
rank.  (16  Comp.  Dec,  662;  see  also  17  Comp. 
Dec. ,  255.  Compare  note  to  sec.  1485,  and  note 
to  Constitutionj  Art.  II,  sec.  3,  under  "II. 
Duty  to  commission  officers.")  By  act  of 
August  29,  1916  (39  Stat.,  576),  itwasprovided 
that  "officers  of  tne  lower  grades  of  the  Medical 
Corps,  Pay  Corps,  Construction  Corps,  and 
Corps  of  Civil  Engineers  shall  be  advanced 
in  rank  up  to  and  including  the  rank  of  lieu- 
tenant commander  mth  the  officers  of  the  line 
with  whom  or  next  after  whom  they  take  pre- 
cedence under  existing  law";  and  by  act  of 
Julyl,1918  (40  Stat,  718),  itwasprovided  that 
the  advancement  of  staff  officers  of  the  Navy  to 
the  ranks  of  commander,  captain,  and  rear 
admiral  shall  be  by  selection  in  the  manner 
therein  provided. 

Advancement  in  rank  of  professors  of 
mathematics. — There  is  no  statute  which 
limits  the  discretion  of  the  Executive  with 
regard  to  the  division  of  the  five  junior  officers 
of  the  Corps  of  Professors  of  Mathematics  be- 
tween the  grades  of  lieutenant  commander  and 
lieutenant.  If  the  President  deems  it  appro- 
priate to  nominate  one  or  more  of  the  profes- 
sors of  mathematics  of  the  Navy  now  com- 
missioned in  the  grade  of  lieutenant  to  be  com- 
missioned in  the  grade  of  lieutenant  com- 
mander, it  is  entirely  within  his  discretion  so  to 
do.  (Op.  Atty.  Gen.,  Mar.  2,  1909,  file  26289- 
5a,  following  26  Op.  Atty.  Gen.,  511,  noted 
imder  sec  1376,  R.  S.,  in  which  it  was 
held,  with  reference  to  the  Pay  Corps,  that 
where    the    law   fixes   an    aggregate   number 


682 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1480. 


of  officers,  in  two  grades,  without  provid- 
ing for  the  distribution  of  such  officers  be- 
tween said  grades,  the  number  to  be  ap- 
pointed in  each  of  the  two  grades  is  necessarily 
left  to  Executive  discretion,  to  be  controlled 
by  the  general  laws  and  regulations  providing 
for  the  advancement  of  officers  in  the  naval 
service.    See  also  file  26289-9,  Mar.  30,  1912.) 

"Grade,"  "rank,"  and  "title"  in  staff 
corps. — ^^^lile  "gi'ade' '  has  the  same  meaning 
as  "office,"  "rank"  is  merely  a  classification 
to  fix  the  position  of  officers  with  respect  to  other 
officers  in  the  same  or  in  other  grades  as  to  com- 
mand, precedence,  privilege,  or  pay.  "  Rank  " 
may  be  conferred  by  mere  notification  and 
without  either  examination,  confirmation,  or 
commission  (Gen.  Wood's  case,  15  Ct.  Cls.,  151, 
159;  Wood  v.  U.  S.,  107  U.  S.,  414;  20  Op.  Atty. 
Gen.,  358,  362,  363;  19  Op.  Atty.  Gen.,  169;  27 
Op.  Atty.  Gen.,  376);  so  also  while  "grade"  is 
only  partiallv, ' '  rank  "is  wholly,  within  the  con- 
trol of  Congress  (Wood  v.  U.  S.,  107  U.  S.,  414, 
417;  Senate  Rep.  2163,  38th  Cong.,  2d  sess.). 
(31  Op.  Atty.  Gen.,  80.) 

The  naval  appropriation  act  of  March  3,  1871 
(16  Stat.,  535-538),  reorganized  to  some  extent 
the  staff  corps  of  the  Navy.  As  to  the  Medical 
Corps  it  provided,  for  example,  for  "medical 
directors  who  shall  have  the  relative  rank  of 
captain,  "  as  to  the  Engineer  Corps,  for  example, 
"chief  engineers  who  shall  have  the  relative 
rank  of  captain,"  "chief  engineers  who  shall 
have  the  relative  rank  of  commander. ' '  Of  the 
naval  constructors  it  said  "two  shall  have  the 
relative  rank  of  captain,  three  of  commander, 
and  all  others  that  of  lieutenant  commander  or 
lieutenant."  Section  10  then  provided:  "That 
the  foregoing  grades  hereby  established  for  the 
staff  corps  of  the  Navy,  shall  be  filled_  by  ap- 
pointment from  the  highest  numbers  in  each 
corps  according  to  seniority,  and  that  new  com- 
missions shall  be  issued  to  the  officers  so  ap- 
pointed, in  which  commissions  the  titles  and 
grades  herein  established  shall  be  inserted. 
Here  we  have  created  offices  of,  for  example, 
"medical  directors,"  "pay  inspectors,  ""chief 
engineers,"  "naval  constructors,"  with  no 
provision  for  their  position  in  the  general 
scheme  of  the  Navy,  unless  the  added  words, 
for  example,  "with  the  relative  rank  of  cap- 
tain" cover  this  omission.  We  then  have  the 
reference  in  section  10  to  the  foregoing  estab- 
lishment as  one  of  "grades"  and  "titles" 
which  must  be  specified  in  the  commission. 
What  "grades"  and  "titles"  are  referred  to? 
It  is  clear  both  as  a  matter  of  common  sense 
and  of  authority  that  the  "grades"  referred  to 
in  section  10  of  the  act  of  March  3,  1871,  are, 
for  example,  "pay  directors  with  the  rank  of 
captain,"  "chief  engineers  with  the  rank  of 
commander,"  "chief  engineers  with  the  rank 
of  lieutenant  commander,"  etc.  (31  Op.  Atty. 
Gen.,  505,  513.) 

Previous  Attorneys  General  have  held  with 
respect  to  the  phrases  corresponding  to  "medi- 
cal director  with  the  rank  of  rear  admiral," 
that  the  first  two  words  represent  the  title  to  the 
office,  while  the  latter  words  merely  give  it 
rank  (citing  10  Op.  Atty.  Gen.,  377;  20  Op. 
Atty.  Gen.,  358,  reversing  16  Op.  Atty.  Gen:, 
414,  417; 28  Op.  Atty.  Gen.,  429,  526;  Op.  Atty. 


Gen.,  Mar.  15,  1911,  file  22724-16:3).     (31  Op. 
Atty.  Gen.,  80.) 

The  grade  of  chief  engineer  ia  one  grade;  they 
hold  the  same  office;  their  relative  rank  among 
the  chief  engineers  changes  with  their  seniority 
in  that  grade,  but  the  office  of  chief  engineer 
remains  the  same.  It  is  clear  that  the  mere  fact 
that  different  relative  rank  is  assigned  to  officers 
whose  office  is  designated  by  the  same  title  does 
not  necessarily  put  such  officers  in  different 
grades.  (20  Op.  Atty.  Gen.,  358,  explaining 
16  Op  Atty.  Gen.,  414.) 

Section  1475,  Revised  Statutes,  does  not  give 
to  a  pay  inspector  the  grade  of  commander.  It 
confers  upon  him  the  rank  of  commander  by 
relation  only  to  the  rank  of  a  line  officer  of  that 
grade.  By  the  use  of  the  terms,  "relative 
rank,"  in  that  section.  Congress  intended  to 
make  the  grades  of  the  Pay  Corps  of  the  Navy 
equal  to,  but  not  identical  with,  the  grades  of 
the  line  with  which  they  are  Ijy  those  terma 
associated.  As  generally  used  in  reference  to 
the  naval  and  military  service,  the  word  ' '  title  " 
signifies  the  name  by  which  an  office  or  the 
holder  of  an  office  is  designated  and  distin- 
guished, and  by  which  the  officer  has  a  right  to 
be  addressed;  "grade"  one  of  the  divisionsor 
degrees  in  the  particular  branch  of  the  service 
according  to  which  officers  therein  are  arranged; 
and  "rank"  the  position  of  officers  of  different 
grades  or  of  the  same  grade,  in  point  of  author- 
ity, precedence,  or  the  like,  of  one  over  another. 
Sometimes  "rank  "  is  used  as  synonymous  with 
"CTade,"  and  the  title  of  an  officer,  for  example, 
admiral,  vice  admiral,  etc.,  may  denote  both 
his  grade  and  his  rank.  The  designation,  ' '  pay 
inspector,"  expressed  both  title  and  grade  in 
the  Pay  Corps.  Held,  that  a  commission  in  the 
folloAving  form,    "John  Doe,  a  pay  inspector 

from  the    day  of ,  A.  D.  187 — , 

with  the  relative  rank  of  commander,"  gives 
the  appropriate  title  and  grade  of  the  officer 
named  therein,  and  fully  satisfies  the  require- 
ment of  section  1480,  Revised  Statutes.  (16  Op. 
Atty.  Gen.,  414.) 

A  commission  gives  the  officer,  by  the  words 
"pay  inspector,"  the  title  and  grade  to  which 
he  has  a  right.  The  addition  of  the  relative 
rank,  while  not  positively  required  by  the 
statute,  is  eminently  appropriate.  Especially 
is  this  the  case  in  view  of  the  fact  that,  with 
reference  to  certain  officers  of  the  staff  corps, 
this  would  be  necessary,  as  their  grade  would 
be  determined  by  the  addition  of  their  relative 
rank.  (16  Op.  Atty.  Gen.,  414,  citing  sees. 
1390  and  1476,  R.  S.) 

The  act  of  August  29,  1916  (39  Stat,  577), 
makes  reference  to  the  "grade  of  assistant 
surgeon,"  showing  that  the  title  of  the  grade 
was  "assistant  surgeon"  and  that  the  added 
words  in  section  1474,  "the  relative  rank  of 
master  or  ensign,"  were  no  part  of  the  defini- 
tion of  the  grade  but  merely  a  classification 
within  it.     (31  Op.  Atty.  Gen.,  80.) 

The  rank  conferred  upon  professors  of  math- 
ematics by  section  1480,  Revised  Statutes,  does 
not  confer  upon  them  the  corresponding  grade. 
A  professor  of  mathematics  with  the  rank  of 
captain,  placed  on  the  retired  list  with  the  rank 
of  rear  admiral  on  account  of  ci\dl  war  service 
(act  Mar.  3,  1899,  sec.  11,  30  Stat.,  1007),  held 
at  the  time  of  his  retirement  the  grade  of  pro- 


54641°— 22- 


-44 


683 


Sec.  1480. 


Pt.S.  REVISED  STATUTES. 


The  Navy. 


fessor  of  mathematicB  and  not  the  grade  of 
captain.     (U^  Coinp.  Dec,  211.) 

Tlie  grade  of  an  officer  in  the  Navy  is  his 
otlicial  station,  by  ^vhich  are  regulated  his 
powers,  duties,  and  pay.  His  pay  may  he 
further  governed  hy  his  time  of  service  within 
a  grade,  either  in  fact  rendered  within  the 
grade,  or  constructively  performed  therein 
through  the  force  of  statutes.  That  the  oflice 
of  professor  of  mathematics  is  a  grade,  is  recog- 
nized by  the  act  of  April  17,  1866,  section  7 
(14  Stat.,  38),  which  provides,  "That  hereafter 
no  vacancy  in  the  grade  of  professor  of  mathe- 
matics in  the  Na\'y  shall  be  filled."  (Roget  v. 
U.  S.,148U.  S.,167,  171.) 

A\Tiere  the  word  "grade"  is  used  in  a  statute 
relating  to  the  Army  to  designate,  indiscrim- 
inately, first  an  office  and  then  a  rank,  it  does 
not  signify  "office"  in  its  first  employment  and 
"rank"  in  the  second,  but  refers  to  a  quality 
which  may  be  common  to  both,  viz,  that  of 
conferring  relative  superiority  of  position.  The 
place  of  assistant  surgeon  is  a  step  in  promotion; 
so  is  that  of  captain  on  the  medical  staff.  They 
are  not  steps  as  regards  each  other.  The  latter 
is  a  step  within  the  former,  a  subgrade.  It  is  a 
step  above  another  grade.  Those  who  have 
been  advanced  to  it  stand  above  those  who  have 
not  been;  and  such  seems  to  have  been  plainly 
the  intent  of  the  legislature.  It  is  unnecessary 
to  issue  cenimissions  to  assistant  surgeons  in  the 
Army  upon  their  passing  from  the  grade  of 
lieutenant  to  that  of  captain.  The  office  for 
which  in  these  cases  the  President  issues  a 
commission  is  that  of  assistant  surgeon;  the 

frades  of  lieutenant  and  captain  are  not  offices 
ut  are  incident  to  the  office  of  assistant  surgeon. 
It  appears  that  by  section  1480,  Revised  Stat- 
utes, certain  officers  of  the  Navy  receive  a  new 
commission  for  every  grade  which  they  attain. 
This  is  by  an  express  statute  that  is  limited  to 
the  cases  named  therein.  Although  it  would 
reciuire  but  a  slight  recognition  by  Congress  to 
develop  these  grades  (lieutenant  and  captain  in 
the  Army  Medical  Department)  into  separate 
offices,  this  has  not  been  done  as  yet;  and  in  the 
meantime  the  absence  of  a  statutory  provision 
like  that  in  section  1480  is  significant.  (16  Op. 
Atty.  Gen.,  652.) 

The  officers  of  different  corps  of  the  staff,  such 
as  the  Medical  Corj^s  and  the  Pay  Corps,  have 
separate  and  distinct  titles  appropriate  to  the 
nature  of  their  service  and  to  their  rank  in  the 
corps,  and  in  addition  thereto  are  given  relative 
rank  by  the  same  title  that  is  applied  to  officers 
of  the  line.  The  line  furnishes  the  standard  of 
rank  for  officers  of  all  classes.  A  captain  in  the 
line  is  merely  a  captain  and  has  but  one  title  to 
designate  both  his  office  and  his  rank.  An 
officer  of  the  staff  has  an  official  title  to  identify 
his  position  in  his  corps,  and  also  a  relative  rank 
in  addition,  the  latter  being  arbitrarily  fixed  Ijy 
Congress  to  designate  his  relative  rank  in  the 
service  in  accordance  with  the  line  standard. 
The  rank  conferred  upon  a  person  holding  the 
position  of  medical  director  is  purely  statutory 
and  arbitrary,  and  there  is  no  reason  why  a 
retired  medical  director  should  not  hold  a 
higher  relative  rank  than  that  which  is  per- 
mitted on  the  active  list.  That  Congress  has 
in    other    instances    contemplated    a    similar 


result  is  apparent  from  the  provisions  of  section 
14S1,  wliich  provides  that  certain  staff  officers 
shall,  wluiu  retired,  have  the  relative  rank  of 
commodore.     (22  Op.  Atty.  Gen.,  433.) 

A  class  exists  in  the  Army  and  Navy  which 
does  not  have  to  do  with  the  actual  maneuver- 
ing of  a  regiment  or  shij)  of  war,  but  which  per- 
forms services  deemed  equally  essential  to  that 
end,  for  example,  paymasters,  surgeons,  chap- 
lains, constructors,  etc.  There  were  and  are 
reasons,  based  upon  the  efficiency  of  the  ser\'ice 
looked  at  as  a  whole,  why  a  rank  should  be 
given  to  this  class  commensurate  with  the  rank 
given  to  the  class  which  actually  exercised 
command.  The  difficulty  was  that  in  the  case 
of  an  officer  actually  exercising  command,  his 
office  or  title  correctly  represented  his  rank  ex- 
cept in  exceptional  cases.  In  the  case,  however, 
of,  for  example,  paymasters,  surgeons,  etc.,  the 
title  or  office  indicated  no  rank  in  the  Navy  as 
a  whole.  It  was  deemed  necessary,  therefore, 
to  attach  to  the  title  or  office  of  such  persons 
a  rank  which  should  fix  their  precedence,  pay, 
etc.,  and  thus  bring  them  in  line  with  the  rest 
of  the  serxdce.  (31  Op.  Attv.  Gen.,  505,  citing 
16  Op.  Atty.  Gen.,  414.) 

"Every  officer  in  the  Navy  shall  be  designa- 
ted and  addressed  by  the  title  of  his  rank  with- 
out any  discrimination  whatever.  In  written 
communications,  the  name  of  the  corps  to 
which  any  staff  officer  belongs  will  be  stated 
immediately  after  his  name;  for  example: 
Lieutenant  John  Doe,  Medical  Corps,  U.  S. 
Na\'y;  Lieutenant  John  Doe,  Pay  Corps,  U.  S. 
Navy;  Lieutenant  John  Doe,  Construction 
Corps,  U.  S.  Navy;  Lieutenant  John  Doe, 
Civil  Engineer  Corps,  U.  S.  Navv."  (Art.  R 
1001  (2), ■"Navy  Regs.,  1913,  C.  N.  R.  12,  Sept. 
12, 1918.  The  designation  of  the  ' '  Pay  Corps  " 
was  changed  to  "Supply  Corps,"  by  act  of  Julv 
11,  1919,  41  Stat.,  147.)  "All  ofl^cers  on  the 
retired  list  have  the  titles  of  the  rank  with 
which  retired."  (Art.  R  1002  (5),  Navy  Regs., 
1913.)  "Officers  in  oral  official  communica- 
tions shall  be  addressed  by  the  title  of  their 
rank,  except  that  those  below  the  rank  of  com- 
mander may  be  addressed  by  the  title  of  their 
rank  or  as  Mr.;  and,  in  the  case  of  officers  of 
the  Medical  Corps,  as  Dr."  (Art.  R  1008,  Navy 
Regs.,  1913,  C.  N.  R.  12,  Sept.  12,  1918.)  On 
general  subject  of  titles,  and  powers  of  head  of 
department  with  reference  thereto,  see  note  to 
section  1471,  Re\dsed  Statutes,  under  "Titles 
of  chiefs  of  bureaus." 

For  other  cases  concerning  "rank,"  "grade" 
and  "title,"  see  notes  to  sections  421,  422,  423,  . 
1362,  1457,  1477,  1479,  and  1481,  Revised  Stat- 
utes.    See  also,   above,   "Grades  established, 
meaning  of." 

Examinations  required  for  promotion, 
in  addition  to  seniority. — The  Re\'ised 
Statutes  contained  no  specific  provisions  for 
filling  grades  in  the  staff  corps,  but  1)V  act  of 
February  27,  1877  (19  Stat.,  244),  the  f6llowing 
was  added  to  section  1480:  "The_  grades 
established  by  the  six  preceding  sections  for 
the  staff  corps  of  the  Navy  shall  be  filled  by 
appointment  from  the  highest  meml^ers  in  each 
corps,  according  to  seniority;  and  new  commis- 
sions shall  be  issued  to  the  officers  so  appointed, 
in  which  the  titles  and  grades  established 
in  said  sections  shall  be  inserted."   Sections 


684 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1481. 


1498-1510,  Revised  Statutes,  provide  for  exara- 
inations  for  promotion  as  an  additional  requi- 
site to  seniority.  (31  Op.  Atty.  Gen. ,  80.  _  Ex- 
aminations were  discontinued  for  promotion  of 
staff  officers  in  grade  by  act  of  May  22,  1917, 
sec.  20  (40  Stat.  89),  which  act  and  section  also 
reenacted  a  provision  in  the  act  of  Mar.  4,  1917 
(39  Stat.,  1182),  requiring  examinations  of  staff 
officers  for  advancement  in  rank.) 

Competitive  examinations  for  promo- 
tion not  authorized  under  this  section. — 
The  custom  and  practice  of  the  Na^-y  Depart- 
ment, sanctioned  by  section  1372,  Ile\dsed 
Statutes,  of  requiring  competitive  examinations 
of  assistant  surgeons,  and  assigning  them  posi- 
tions on  the  Navy  Eegister  in  the  order  of  their 
relative  merit  as  ascertained  and  reported  by 
the  board  of  examiners,  is  not.  under  section 
1480,  Revised  Statutes,  as  amended  by  act  of 
February  27,  1877,  correct;  the  effect  of  the 
latter  law  being  to  adopt  the  rule  of  seniority 
in  regard  to  promotions  from  one  gi-ade  to 
another  in  the  Medical  Corps  of  the  Navy. 
(17  Op.  Atty.  Gen.,  48.) 

Promotions  required  to  be  by  seniority 
under  this  section. — A  passed  assistant 
surgeon  in  the  Navy  having  passed  the  neces- 
sary examination  for  promotion  to  surgeon, 
his  claim  to  be  promoted  according  to  seniority 
is  well  founded.     (17  Op.  Atty  Gen.,  48.) 

The  act  of  February  27,  1877,  embodied  in 
section  1480,  is  prospective  in  its  character, 
and  is  only  to  take  effect  from  the  date  of  its 
enactment.  Its  language  contemplates  that 
the  rule  prescribed  by  it  may  not  have  thereto- 
fore always  been  followed  in  reference  to  rank 
or  seniority.     (17  Op.  Atty.  Gen.,  48.) 

The  act  of  March  3,  1871,  section  10  (16 
Stat.,  536),  which  is  substantially  identical 
with  the  actof  February  27, 1877  (19  Stat.,  249), 
embodied  in  section  1480,  Revised  Statutes, 
contemplated  by  the  use  of  the  words  ' '  highest 


numbers  in  each  corps  according  to  seniority," 
that  the  promotions  should  be  by  seniority  and 
not  by  competitive  examination;  and  the  pro- 
vision that ' '  no  officer  shall  be  reduced  in  rank 
or  lose  seniority"  etc.,  contemplated  also  that 
unless  this  pro\'ision  were  inserted  changes 
would  be  made  in  gi-ades  or  numbers  which 
had  been  theretofore  fixed,  which  it  was  not 
the  intention  of  Congress  to  disturb.  This 
clause  of  the  act  of  March  3,  1871,  did  not  find 
its  way  into  the  original  edition  of  the  Revised 
Statutes,  but  is  now  in  the  second  edition, 
section  1480.  It  was,  however,  reenacted  by 
the  act  of  Februaiy  27,  1877,  which  is  a  sub- 
stantial reenactment  with  the  exception  that 
the  word  'members"  is  used  instead  of  "num- 
bers," and  the  words,  "under  the  provisions 
of  the  said  six  preceding  sections  "  are  substi- 
tuted for  the  words, ' "  under  the  pro^^sions  of  this 
act,"  which  appeared  in  the  original  statute. 
These  changes  apparently  have  no  other  object 
than  to  adapt  the  statute  to  its  place  in  the 
revision.  The  effect  of  it  is  to  adopt  the  rule  of 
seniority  in  regard  to  promotions  from  one  grade 
to  another  in  the  staff  corps.  (17  Op.  Atty 
Gen.,  48.) 

For  other  cases,  see  above,  under  "Consti- 
tutionality of  amended   section  1480." 

Corps  of  Civil  Engineers. — Ci\'il  engineers 
ai'e  plainly  included  among  those  contemplated 
by  the  amended  section  1480,  as  belonging  to 
the  "staff  corps  of  the  Navy."  (17  Op.  Atty. 
Gen.,  126.) 

Errors  in  commission. — ^Where  through  a 
clerical  error  an  officer  of  the  Navy  was  com- 
missioned a  passed  assistant  siugeon  with  the 
rank  of  lieutenant,  instead  of  with  the  rank 
of  lieutenant  (junior  grade),  he  is  only  entitled 
to  the  pay  of  the  lesser  grade.  (11  Comp.  Dec. , 
43.  See  also  note  to  sec.  1474,  R.  S.,  and  see 
note  to  Constitution,  Art.  II,  sec.  3,  under  "II. 
Duty  to  commission  officers.") 


Sec.  1481.  [When  retired  for  age  or  length  of  service.]  Officers  of  the  Med- 
ical, Pay,  and  Engineer  Corps,  chaplains,  professors  of  mathematics,  and  con- 
structors, who  shall  have  served  faithfully  for  forty-five  years,  shall,  when 
retired,  have  the  relative  rank  of  commodore;  and  officers  of  these  several 
corps  who  have  been  or  shall  be  retired  at  the  age  of  sixty-two  years,  before 
having  served  for  forty-five  years,  but  who  shall  have  served  faithfully  until 
retired,  shall,  on  the  completion  of  forty  years  from  their  entry  into  the  service, 
have  the  relative  rank  of  commodore. — (3  Mar.,  1871,  c.  117,  s.  11,  v.  16,  p.  537.) 


Amendment  to  this  section  was  made  by  act  of 
March  3,  1899  (30  Stat.,  1004),  wliich  abol- 
ished the  Engineer  Corps  (see  note  to  sec. 
1390,  R.  S.);  by  the  same  act,  section  7 
(30  Stat.,  1006),  which  changed  the  words 
"the  relative  rank  of."  to  read  "the  rank 
of";  by  act  of  August  29,  1916  (.39  Stat., 
579),  which  changed  the  rethement  age 
from  62  to  64  years;  and  by  act  of  July  11, 
1919  (41  Stat.,  147),  which  provided 'that 
"hereafter  the  Pay  Corps  shall  be  called 
the  Supply  Corps." 

By  act  of  August  5,  1882  (22  Stat.,  286),  it  was 
provided  that  "hereafter  there  sliall  be  no 
promotion  or  increase  of  pay  in  the  retired 


list  of  the  Navy,  but  the  rank  and  pay  of 
officers  on  the  retired  list  shall  be  the 
same  that  they  are  when  such  officers  shall 
be  retired. " 
By  act  of  August  29,  1916  (39  Stat.,  611),  pro- 
\dsion  was  made  for  retirement  of  colonels 
in  the  Marine  Corj^s  with  the  rank  of  briga- 
dier general  after  4-5  years'  service,  or  on 
retirement  for  age  after  40  year's  senice, 
or  on  completion  of  40  years  from  date  of 
entry  in  the  cases  of  those  retired  on  ac- 
count of  age,  in  language  similar  to  section 
1481.  The  said  enactment  of  August  29, 
1916,  was  repealed  by  act  of  May  22,  1917, 
section  14  (40  Stat.,  87.) 


685 


Sec.  1481. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


This  section  was  repealed  in  part  by  the 
actol  August  5,  18S2  [above  cited],  jmihibiting 
I)r()motioii8  on  the  retired  list.  There  were 
three  classes  of  olhcers  to  which  the  act  of 
March  3,  1871  (16  Stat.,  537),  embodied  in  sec- 
tion 1481,  applied  at  the  time  of  its  enactment: 
(1)  Oflicei-s  of  the  several  staff  coi-ps  enumerated 
'who  filial  1  have  served  faithfully  for  forty-five 
years";  (2)  officers  of  the  several  staff  corps 
retired  after  attaining  the  age  of  62  years,  who 
liad  not  completed  45  years'  service,  but  who 
had  completed  40  years'  service  and  had  sened 
faithfully  until  retii-ed;  and  (3)  officers  of  the 
several  staff  corps  retired  from  the  service  after 
attaining  the  age  of  62  years,  who  had  not  sei*ved 
45  years  or  40  years;  officers  of  this  last  class 
were  entitled  to  the  relative  rank  of  commodore 
on  the  completion  of  40  years  from  the  date  of 
their  entry  into  the  service;  the  first  two 
classes  were  entitled  to  the  relative  rank  of 
commodore  when  retired.  The  Navy  Registers 
from  March  3,  1871,  to  August  5, 1882,  show  that 
officers  of  each  of  the  foregoing  classes  were 
advanced  to  the  rank  of  commodore  under  sec- 
tion 1481;  and  that  in  the  cases  of  officers  in 
class  3,  time  on  the  retired  list  was  counted  in 
computing  the  40  years'  service  in  order  to  give 
them  the  increased  rank  (see  26  Op.  Atty.  Gen., 
57).  However,  the  act  of  August  5,  1882,  put 
an  end  to  promotions  of  officers  of  class  3,  and 
since  that  date  the  Navy  Registers  do  not  show 
that  any  officers  of  class  3  have  been  promoted 
to  the  rank  of  commodore  under  this  section, 
although  the  records  of  the  Navy  Department 
show  that  there  have  been  many  applications 
from  such  officers  for  increased  rank  under  said 
section,  which  applications  have  been  denied. 
It  is  clear  that  the  Navy  Department  has,  since 
the  enactment  of  August  5,  1882,  construed  it 
as  prohibiting  all  promotions  on  the  retired  list, 
including  those  previously  authorized  by  sec- 
tion 1481,  Revised  Statutes,  and  this  construc- 
tion is  supported  l)y  the  Attorney  General's 
opinions  with  reference  to  promotions  on  the 
retired  list  under  sections  1460  and  1461,  Re- 
vised Statutes  (see  17  Op.  Atty.  Gen.,  495;  26 
Op.  Atty.  Gen.,  498,  501).  Accordingly,  held, 
that  an  officer  retu-ed  at  the  age  of  62  years, 
before  having  served  45  years,  but  who  served 
faithfully  until  retired,  and  who,  after  retire- 
ment, completed  40  years  from  the  date  of  his 
entry  into  the  sei'vice,  is  not  entitled  to  be 
advanced  to  the  rank  of  commodore  on  the  re- 
tu-ed list  under  section  1481.  (File  27231-112, 
Apr.  1,  1918.) 

The  act  of  August  5,  1882,  expressly  declares 
in  the  plainest  language  that  no  oflScer  shall  be 
promoted  after  his  retirement,  thereby  re- 
pealing section  1481,  to  the  extent  that  it  con- 
flicts with  that  section.  The  act  in  terms 
applies  to  all  officers  irrespective  of  the  time 
when  they  entered  the  service,  and  is  not 
limited  to  those  who  entered  the  service  sub- 
sequent to  its  passage.  (Op.  Atty.  Gen.,  Jan. 
28,  1921,  file  27231-141:6.) 

Retirement  of  officer  after  45  years' 
service. — Under  the  provisions  of  section  1481, 
Revised  Statutes,  an  officer  <jf  the  Pay  Corps 
[now  Supply  Corps]  who  has  "served  faithfully 
for  forty-five  years,"  may  be  retired  with  the 
rank  of   commodore.     In  computing  said  45 


years'  service,  an  oflTicer  in  the  Navy  may  count 
serWce  in  the  regular  Navy,  service  as  a  student 
at  the  Naval  Academy  prior  to  March  4, 
1913,  and  service  in  the  United  States  Armv. 
(File  27231-141,  June  10,  1919.  See  notes  to 
sees.  1443,  1444,  R.  S.) 

Rank  of  rear  admiral  substituted  for 
relative  rank  of  commodore. — By  sections 
1481  and  1482  the  retirement  of  staff  oflicers  is 
particularly  provided  for.  Under  the  scheme 
at  that  time  of  relative  rank  (sees.  1474-1480, 
inclusive),  and  the  survival  then  of  the  oflice 
of  commodore,  long  service  and  failthful  service 
in  the  staff  corps  gave  the  right  of  retirement 
with  that  relative  rank.  The  Navy  personnel 
act  (Mar.  3,  1899,  30  Stat.,  1006)  has  now  sub- 
stituted (sec.  7)  the  rank  of  rear  admiral  in 
such  case.  (25  Op.  Atty.  Gen.,  294,  296,  citing 
22  Op.  Atty.  Gen.,  433.  See  note  to  sec.  421, 
R.  S.,  under  "VI.  Retirement  of  chiefs  of 
bureaus.") 

Retired  with,  rank  of  commodore  in 
practice. — Under  section  1481,  Revised 
Statutes,  certain  staff  officers  are  retii'ed  with 
the  rank  of  commodore,  this  being  the  only  case 
in  which  any  officers  are  now  placed  on  the 
retired  list  with  that  rank,  retirements  under 
section  1473,  Revised  Statutes,  being  made  in 
practice  with  the  rank  of  rear  admiral  instead 
of  commodore,  as  was  provided  therein.  (File 
3980-1402,  Oct.  31,  1917,  noted  more  fully  under 
sec.  1466,  R.  S.,  "Grade  of  commodore  abolished 
on  the  active  list.") 

A  civilian  professor  at  the  Naval  Academy 
was  appointed  to  the  corps  of  professors  of 
mathematics,  with  the  rank  of  lieutenant, 
pursuant  to  a  special  act  of  Congress  (37  Stat., 
906),  which  pro\dded  that  such  appointee 
should  be  an  extra  number,  "not  in  the  line  of 
promotion."  Subsequently  he  was  retired 
with  the  rank  of  lieutenant.  At  the  time  of 
his  retirement  he  had  completed  45  years' 
service,  including  his  ci\ilian  service  which 
under  the  special  enactment  was  to  be  counted 
"as  service  in  the  Navy"  for  "pay  and  other 
purposes."  Held,  that  under  section  1481,  he 
was  entitled  to  the  rank  and  pay  of  commodore, 
on  the  retired  list.     (32  Op.  Atty.  Gen.,  129.) 

Retirement  with  higher  rank  not  a 
change  in  grade. — By  section  1481,  Re\ised 
Statutes,  officers  of  the  staff  of  the  Navy  having 
the  relati%'e  rank  of  captain  ai'e  retired  with  the 
relative  rank  of  commodore,  or  that  of  the  next 
higher  grade.  This  is  not  an  advancement  in 
grade.  The  distinction  between  rank  and 
grade  in  both  the  Army  and  Navy  is  so  long 
and  so  well  understood  that  we  can  not  suppose 
Congress  unmindful  of  it  in  this  enactment. 
Section  1481,  without  any  apparent  intention 
to  change  the  actual  grade  of  the  officers  referred 
to,  uses  the  language,  "shall,  when  retired, 
have  the  relative  rank  of  commodore."  Had 
Congress  here  intended  a  change  of  grade  and 
not  of  rank  merely,  it  would  have  used  the 
word  "grade"  instead  of  "rank."  But  Con- 
gress said  rank  and  not  grade,  and  this  leaves 
the  officers  there  referred  to  in  the  same  grade 
as  ])efore,  but  with  the  relative  rank  of  the  next 
higher  grade.     (26  Op.  Atty.  Gen.,  57.) 

The  act  of  June  29,  1906  (34  Stat.,  554),  pro- 
vided an  advancement  in  rank  and  pay  on  the 


686 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1483. 


retired  list  for  certain  officers  who  served  dur- 
ing the  chril  war,  with  the  pro\'iso  that  said  act 
should  not  apply  to  any  officer  who  had  received 
an  advance  of  "grade"  at  or  since  the  date  of 
his  retirement.  Held,  that  a  medical  director 
whose  rank  on  the  active  list  was  that  of  cap- 
tain, and  who  was  retired  under  section  1481 
with  the  relative  rank  of  commodore,  did  not 
receive  an  advance  of  "'grade"  at  or  since  the 
date  of  his  retirement;  that  he  is  not.  by  \'irtue 
of  his  relative  rank  of  commodore,  an  officer 
above  the  "'grade"  of  captain;  and  that  he  is 
entitled  to  the  increased  pav  pro\-ided  for  in 
the  act  of  1906.     (26  Op.  Atty.  Gen..  57.) 

For  other  cases,  see  note  to  section  1480. 
Re\'ised  Statutes,  under  "'  'Grade.'  'rank,' 
and  'title.'  in  staff  coi-ps,"  and  references  there 
cited. 


Policy  of  retirement  with  higher  rank. — 

Section  1481  and  other  retirement  statutes 
indicate  in  general  the  principle  that  credit- 
a1)le  retirement  carries  an  advance  in  rank 
and  pay  (allowing  for  the  difference  between  the 
active  and  inactive  status).  (25  Op.  Atty. 
Gen.,  294.) 

There  is  no  reason  why  a  retired  medical 
director  should  not  be  given  a  higher  rank  on 
the  retired  list,  as  a  reward  for  Civil  War  service, 
than  that  which  is  permitted  on  the  active  list. 
That  Congress  has  in  other  instances  contem- 
plated a  similar  result  is  apparent  from  section 
1481.  which  provides  that  certain  staff  officers 
shall,  when  retii'ed.  have  the  relative  rank  of 
commodore,  the  highest  rank  on  the  active 
list  for  the  Medical  Corps  (at  that  time)  being 
captain.     (22  Op.  Atty.  Gen.,  433.) 


Sec.  1482.  [Retired  for  causes  incident  to  service.]  Staff-officers,  who  have 
been  or  shall  be  retired  for  causes  incident  to  the  service  before  arriving  at  sixty- 
two  years  of  age,  shall  have  the  same  rank  on  the  retired  list  as  pertained  to 
their  position  on  the  active  list. —  (3  Mar.,  1871,  c.  117,  s.  11,  v.  16,  p.  537.) 

See  note  to  section  1457,  Revised  Statutes,  concerning  the  rank  and  grade  of  retired  officers. 

Sec.  1483.  [Graduates  of  Naval  Academy.]  Graduates  of  the  Naval 
Academy  shall  take  rank  according  to  their  proficiency  as  shown  by  their  order 
of  merit  at  the  date  of  graduation. 


(23  May,  1872,  c.  195,  s.  1,  v.  17,  p.  153.) 


See  note  to  section  1521,  Revised  Statutes,  for 
references  to  laws  concerning  commission- 
ing of  midshipmen  after  graduation  from 
the  Naval  Academy. 
"Graduation"  defined. — Theactof  Julvl6, 
1862,  section  11  (12  Stat.,  585) ,  pro\-ided  "that 
"the  students  at  the  Naval  Academy  shall  be 
styled  cadet-midshipmen  until  their  final  grad- 
uating examination,  when,  if  successful,  they 
shall  be  commissioned  ensigns,  ranking  accord- 
ing to  merit."  The  act  of  July  15.  1870,  sec- 
tion 12  (16  Stat.,  334),  provided  that  "the 
students  at  the  Naval  Academy  shall  hereafter 
be  styled  cadet-midshipmen  *  *  *.  When 
cadet-midshipmen  shall  have  passed  success- 
fully the  graduating  examination  at  said  acad- 
emy, they  shall  receive  appointments  as  mid- 
shipmen, ranking  according  to  merit,  and  may 
be  promoted  to  the  grade  of  ensign  as  vacancies 
in  the  number  allowed  by  law  in  that  grade 
may  occur."  Held,  that  the  words  "  final  grad- 
uating examination  "  in  the  former  statute,  and 
"  graduating  examination  "  in  the  latter,  signify 
that  examination  which,  under  the  regulations 
of  the  Naval  Academy,  takes  place  after  the 
prescribed  term  of  sea  8er\dce  which  forms  a 
part  of  the  course  at  the  Naval  Academy.  Al- 
though graduation  is  used  in  a  local  and  pecu- 
liar sense  at  the  Naval  Academy,  referring  to  an 
examination  held  during  and  not  at  the  end  of 
the  academic  course,  that  is,  to  an  examination 
which  originally  was  intended  to  certify  that 
the  student  might  well  be  "sent  to  sea,"  and 
the  examination  at  the  end  of  the  whole  course 
was  called  the  "final  examination,"  so  that  in 
the  vocabulary  at  Annapolis  the  adjectives 
"final''  and  "graduating,"  in  connection  with 
"  examination  "  ha\-e  a  technical  meaning,  the 
former  corresponding  ^rith  graduating  as  ordi- 
narily employed  at  institutions  of  learning  and 


the  latter  differing  materially  from  its  common 
acceptation,  being  no  more  graduating  as  usu- 
ally understood  than  the  diploma  then  given  is 
a  diploma  as  usually  understood,  nevertheless 
the  mere  fact  that  the  act  of  1870  concerned  an 
institution  at  which  graduating  has  a  peculiar 
meaning  does  not  make  it  an  exception  to  the 
rule  requiring  that  word  to  be  taken  in  its  usual 
meaning.  (15  Op.  Atty.  Gen.,  637;  see  also  11 
Op.  Atty.  Gen.,  158.) 

The  "final  graduating  examination"  ■within 
the  meaning  of  the  act  of  July  16,  1862,  was  that 
examination  to  which  the  members  of  the  grad- 
uating class  were  subjected  after  they  had  per- 
formed a  term  of  duty  on  shipboard,  "with  a  \dew 
to  their  becoming  practically  proficient  in  the 
arts  of  seamanship,  naval  tactics,  gunner^-,  and 
na\"igation.  The  numbers  assigned  to  them 
respectively  by  the  examining  board  as  the  re- 
sult of  the  examination  on  the  subjects  indi- 
cated, when  added  to  the  numbers  which  had 
previously  been  assigned  to  them  on  the  "grad- 
uating merit-roll"  of  the  academy,  determined 
their  respective  standing  as  passed  midship- 
men, the  highest  number  talang  precedence. 
This  last  examination  upon  the  subjects  to 
which  the  service  of  the  students  on  board  of 
ship  was  especially  directed  after  the  comple- 
tion of  the  more  purely  academic  studies,  was 
the  "final  graduating  examination"  under  the 
system  de\Tsed  by  the  department.  After  they 
had  passed  this  examination  they  took  rank  in 
the  Navy  conformably  to  their  standing  thus 
ascertained  in  the  academy.  Such  was  the  sys- 
tem in  operation  when  the  act  of  1862  was 
passed.  That  act  gave  distinct  legislative  sanc- 
tion to  the  regulation  of  the  department  by 
which  this  final  graduating  examination  was 
appointed.  Accordingly,  held,  that  under  said 
act,   students   or   midshipmen   at  the   Naval 


687 


Sec.  1483. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


Academy  are  not  entitled  to  be  commissioned 
en.sii^ns  until  thoy  lia\c  porforniod  the  term  of 
duty  on  slni)l)()ard  and  passed  tlieir  final  exami- 
nation on  practical  navijiration  and  seamanship. 
(UOp.  Atty.(;en..l58.) 

The  construction  uiven  to  the  statute  of  1870 
by  the  authorities  at  the  academy  has  been  that 
midshipmen,  although  graduated,  were  never- 
theless not  entirely  emancipated  from  proba- 
tionary study,  but  that  after  "graduating^'  they 
■were  still,  as  theretofore,  to  be  students  at  sea; 
that  while  such  students  at  sea  a  pro\'isional 
relative  rank  was  assigned  them  by  the  statute, 
but  that  it  was  not  intended  by  such  legislation 
to  abolish  the  old  discipline  by  which  a  final 
graduating  examination  was  to  have  effect  upon 
the  relative  rank  which  they  should  bear  after 
emancipation.  There  is  no  reason  for  disturb- 
ing this  conclusion,  by  whatever  course  of  argu- 
ment it  may  be  attempted  to  be  met.  (16  Op. 
Atty.  Gen.,  296,  affirming  15  Op.  Atty.  Gen., 
637.) 

In  15  Op.  Atty.,  637,  and  16  Op.  Atty.  Gen., 
296,  this  entire  subject  is  elaborately  discussed 
and  clearly  and  distinctly  decided,  and  it  is  not 
compatible  with  the  proper  administration  of 
the  Department  of  Justice  that  a  third  opinion 
upon  the  legal  questions  involved  should  be 
rendered,  unless  very  exceptional  circum- 
stances should  exist  recjuiring  so  unusual  a 
course  to  l)e  pursued.  The  Attorney  General 
discovers  no  circumstances  which  would  jus- 
tify him  in  considering  the  question  in  these 
opinions,  twice  considered  and  twice  decided 
in  the  same  way,  as  open  questions  for  exami- 
nation and  decision.     (17  Op.  Atty.  Gen.,  193.) 

See  note  to  section  1520,  ReAdsed  Statutes,  as 
to  the  "academic  course"  of  midshipmen. 

Precedence  of  graduates  commissioned 
in  the  line  of  the  Navy  and  in  the  Marine 
Corps. — It  is  very  clear  that  officers  of  the 
Marine  Corps  and  officers  of  the  Navy  take  pre- 
cedence, when  of  the  same  rank,  according  to 
date  of  commission.  (See  sec.  1603  and  note  to 
sec.  1466,  R.  S.)  But  the  question  is,  ^^'hat 
rule  should  be  applied  to  determine  the  preced- 
ence of  officers  of  the  Marine  Corps  and  offi- 
cers of  the  Na\'y  of  the  same  rank,  when  their 
dates  of  commission  are  also  the  same?  By 
section  1219,  Revised  Statutes,  relating  to  the 
Army,  and  article  R  1010  (2),  Na\-y  Regula- 
tions, 1913,  preWous  commissioned  service 
must  be  taken  into  account  under  such  circum- 
stances. This  does  not  cover  the  case  where 
date  of  commission  is  the  same  and  neither 
party  has  had  prior  commissioned  service.  By 
a  regulation  of  the  Army  (Art.  11,  Army  Regs., 
1913),  "when  periods  of  service  are  equal,  pre- 
cedence will,  except  when  fixed  by  order  of 
merit  on  examination,  be  determined,  iirst,  by 
rank  in  service  when  appointed;  second,  by 
former  rank  in  the  Army  or  Marine  Corps:  third, 
by  lot."  There  is  no  similar  regulation  \vith 
reference  to  the  Navy:  Suggested,  that  the  pre- 
cedence of  ensigns  and  second  lieutenants  who 
are  graduates  of  the  Naval  Academy  be  fixed 
by  order  of  merit  on  final  examination  at  the 
Academy.     (File  11130-27,  Aug.  26,  1915.) 

The  Attorney  General  has  held  that  "there 
is  no  law  making  any  distinction  as  to  relative 
rank  and  precedence  between  the  officers  of  the 


Marine  Corps  who  are,  and  those  who  are  not, 
graduates  of  the  United  States  Naval  Academy, 
either  as  respects  themselves,  or  officers  of  the 
line  of  the  Navy."     (See  25  Op.  Atty.  Gen., 
517.)     However,  there  is  no  statute  which  pre^ 
vents  the  adoption  of  a  rule  that  officers  of  the 
Na\-y  and   Marine  Corps  commissioned  from 
graduates  of  the  Naval  Academy  on  the  same 
date  shall  take  precedence  according  to  their 
order  of  merit  on  final  examination  at  the  acad- 
emy.    Indeed,  so  far  as  the  statutes  go  they  in- 
dicate that  this  is  the  rule  which  should  l)e  ap- 
plied.    Thus,  section  1483  provides  that  "grad- 
uates of  the  Naval  Academy  shall  take  rank 
according  to  their  proficiency  as  shown  by  their 
order  of   merit  at  the  date  of  graduation." 
Again,  the  act  of  August  5,  1882  (22  Stat.,  285), 
authorized  the  appointment  of  graduates  of  the 
Naval  Academy  "to  fill  vacancies  in  the  lower 
grades  of  the  line  and  Engineer  Corps  of  the 
Na^-y  and  of  the  Marine  Corps,"  with  the  ex- 
press pro\asion  that  such  appointments  were  to 
be  made  "in  the  order  of  merit,  as  determined 
by  the  academic  board  of  the  Naval  Academy. " 
This  was  followed  by  the  act  of  March  2,  1889 
(25  Stat.,  878),  which  contained  other  provi- 
sions for  appointments  from  graduates  of  the 
Naval    Academy   to   the   line   and    Engineer 
Corps  of  the  Navy  and  the  Marine  Corps,  with 
the    proviso:     "Such     appointments    to    be 
made  from  the  final  graduates  of  the  year, 
in  the  order  of  merit  as  determined  by   the 
Academic    Board    of   the    Naval    Academy." 
Also,  the  act  of  July  26,  1894  (28  Stat.,  124), 
proWded  for  appointments  of  graduates  of  the 
academy  to  the  grades  of  ensign  and  assistant 
engineer  in  the  Na\'y,  with  the  proviso  that 
they  should  take  rank  ' '  among  themselves  ac- 
cording to  merit  as  determined  by  the  academic 
board. ' '     It  would  thus  seem  entirely  proper  to 
adopt  the  proposed  rule  fixing  the  precedence 
of  second  lieutenants  and  ensigns  according  to 
their  order  of  merit  at  final  graduation  from  the 
academy.     (File  11130-27,  Aug.  26,  1915.) 

Graduation  temporarily  delayed. — When 
the  date  of  final  graduation  arrives  the  grad- 
uating midsliipmen  may  be  scattered  in 
vaiious  parts  of  the  world  where  they  happen 
to  be  on  the  date  of  the  expiration  of  the  two 
years'  sea  service  period.  It  may  happen  that 
there  is  a  delay  in  the  receipt  of  their  cruise 
reports,  or  that  additional  cruise  reports  are 
called  for,  or  that  there  is  a  failure  in  the  physi- 
cal examination  and  a  reexamination  had  upon 
the  recommendation  of  the  academic  board  at 
a  later  date  to  determine  the  permanency  of 
the  physical  disability,  or  that  there  is  a  failure 
in  some  subject  of  professional  examination 
a:nd  a  reexamination  ordered  upon  the  recom- 
mendation of  the  board.  'Wlien  the  midsliip- 
man,  aside  from  the  defect  thus  occasioned,  is 
entitled  to  be  graduated  with  his  class,  upon 
the  curing  or  overcoming  of  such  defect  he 
becomes  entitled  to  the  title  of  graduate  from 
the  date  of  "final  graduation"  as  fixed  by  the 
statute,  that  is,  at  the  end  of  the  six  years' 
course.  In  tliis  case  the  midshipman  gradu- 
ated from  the  four  years'  course  at  the  Academy 
with  his  class  on  .Tune  6,  1907;  his  two  years' 
sea  ser\dce  from  such  date  expired  on  June  5, 
1909 ;  his  title  as  a  graduated  midshipman  dates 
from  June  0,  1909.     (17  Comp.  Dec,  298.) 


688 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1485. 


Rule  for  determining  date  of  pre- 
cedence.— A  rule  that  in  each  class  of  graduates 
from  tlie  Naval  Academy  the  "date  of  prece- 
dence" of  members  of  such  class  shall  be  deter- 
mined by  ascertaining  the  member  having  the 
earliest  date  of  admission  to  the  Academy  and 
imputing  that  date  of  admission  to  every  other 
member  who  stands  above  him  in  the  class; 
and  tlien  taking  the  member  below  him  who 
has  the  next  earliest  date  of  admission  and 
imputing  that  date  to  all  who  stand  a])ove  him 
but  below  the  first  date,  and  so  on  down  in  that 
order,  but  preserving  to  the  members  of  each 
date  their  relative  class  standing  in  the  order 
of  merit,  is  in  conflict  with  the  act  approved 
August  5,  1882  (22  Stat.,  284).  (21  Op.  Atty. 
Gen.,  46;  compare  file  11130-2,  Aug.  10,  1908, 
11130-2/B,  July  31,  1909,  11130-2/B&C,  Jan.  5, 
1910.) 

When  midsliipmen  enter  the  Naval  Academy 
there  is  no  means  of  determining  their  relative 
position  other  than  by  their  respective  dates 
of  entry.  At  the  termination  of  six  years  their 
relative  position  is  fixed  by  their  order  of  merit, 
among  themselves,  and  those  members  who 
entered  at  later  dates  may  be  placed  by  such 
order  of  merit  above  their  fellows  who  entered 
earlier.  By  this  operation  they  have  been 
advanced  on  the  Navy  Register  over  classmates 
who  entered  the  Academy  at  earlier  dates.  A 
constructive  length  of  ser\dce  is  necessary  to 
be  attributed  to  officers  so  advanced,  and  they 


are  correctly  given  the  same  date  of  precedence 
as  that  of  the  officer  standing  below  them  who 
entered  on  the  earliest  date.  (File  11130-2, 
Aug.  10,  1908,  citing  17  Op.  Atty.  Gen.,  58.) 

By  act  of  March  4,  1913  (37  Stat.,  891),  it 
was  provided  that  "hereafter  the  service  of  a 
midshipman  at  the  United  States  Naval  Acad- 
emy, or  that  of  a  cadet  at  the  United  States 
Military  Academy,  who  may  hereafter  be 
appointed  to  the  United  States  Naval  Academy, 
or  to  the  United  States  Military  Academy,  shall 
not  be  coimted  in  computing  for  any  purpose 
the  length  of  service  of  any  officer  in  the  Navy 
or  in  the  Marine  Corps."  See  also  note  to 
section  1486,  Revised  Statutes. 

Importance  of  questions  involving  pre- 
cedence.— Cases  are  of  more  than  usual  interest 
and  importance  which  involve  questions  of 
rank  and  precedence  amongst  members  of  a 
profession  in  wliich  rank  and  precedence  form 
high  motives  to  heroism  and  self-devotion. 
The  country  calculates  upon  the  existence  and 
force  of  these  motives.  They  are  recognized 
and  fostered  both  by  the  law  and  by  piiblic 
opinion.  Therefore  it  is  that  public  action 
tending  to  disappoint  these  motives,  and  con- 
sequently to  impair  their  effect  in  general, 
must  be  treated  as  of  universal  concern;  and 
any  action  duly  arraigned  upon  such  account 
must  be  subjected  to  more  than  ordinary 
scrutiny.     (15  Op.  Atty.  Gen.,  637.) 


Sec.  1484.  [Engineers  graduated  at  Naval  Academy.     Superseded.] 


This  section  provided  as  follows: 

"Sec.  1484.  Engineer  officers  graduated  at 
the  Naval  Academy  shall  take  precedence  with 
all  other  officers  with  whom  they  have  relative 
rank,  according  to  the  actual  length  of  ser\'ice 
in  the  Navv."  (3  Mar.,  1873,  c.  230,  s.  1,  v. 
17,  p.  555.) ' 

It  was  superseded  by  act  of  August  5,  1882 
(22  Stat.,  285),  which  pro\'ided  in  part  "that 
hereafter  there  shall  be  no  appointments  of 
cadet-midshipmen  or  cadet-engineers  at  the 
Naval  Academy,  but  in  lieu  thereof  naval  cadets 
shall  be  appointed  from  each  congressional 
district  and  at  large,  as  now  provided  by  law 
for  cadet-midshipmen,  and  all  the  under- 
graduates at  the  Naval  Academy  shall  hereafter 
be  designated  and  called  'naval  cadets:'  and 
from  those  who  successfully  complete  the  six 
years'  covurse  appointments  shall  hereafter  be 
made  as  it  is  necessary  to  fill  vacancies  in  the 
lower  grades  of  the  line  and  Engineer  Corps  of 
the  Navy  and  of  the  Marine  Corps:  *  *  * 
such  appointments  to  be  made  from  the  gradu- 
ates of  the  year,  at  the  conclusion  of  their  six 
years'  course,  in  the  order  of  merit,  as  deter- 
mined by  the  academic  board  of  the  Naval 
Academy  *  *  *."  Prior  to  this  act  of 
August  5,  1882,  the  course  of  "cadet  engineers" 
was  four  years  (sec.  1524,  R.  S.)  and  cadet 


engineers  graduated  from  the  Naval  Academy 
were  appointed  as  assistant  engineers  (sec.  1394, 
R.  S.) ;  while  the  course  of  other  students  at  the 
Naval  Academy  was  six  years  (sec.  1520,  R.  S.), 
and  section  1484  was  intended  to  prevent  cadet 
engineers  when  commissioned  at  the  end  of 
their  four  years'  course  from  gaining  precedence 
over  other  students  at  the  academy  not  com- 
missioned until  the  end  of  their  six  years' 
course  (15  Op.  Atty.  Gen.,  336,  noted  under 
sec.  1486,  R.  S.).  The  provisions  of  section 
1484  were  superseded  and  rendered  obsolete  by 
the  act  of  August  5,  1882,  which  made  the 
coui'se  for  all  students  at  the  Naval  Academy 
six  years  and  provided  that  they  should  be 
commissioned  "in  the  order  of  merit,  as  deter- 
mined by  the  academic  board  of  the  Naval 
Academy." 

Subsequent  laws  relating  to  the  appoint- 
ment of  engineer  officers  from  graduates  of  the 
Naval  Academy  were  enacted  on  March  2,  1889 
(25  Stat.,  878),  and  July  26, 1894  (28  Stat.,  124), 
noted  under  section  1521,  Revised  Statutes. 
The  act  of  March  3,  1899  (30  Stat.,  1004), 
abolished  the  Engineer  Corps,  while  the 
appointment  and  assigmnent  of  line  officers  for 
engineering  duty  only  was  authorized  by  act 
of  August  29,  1916  (39' Stat.,  580).  See  note  to 
section  1390,  Revised  Statutes. 


Sec.  1485.  [Precedence  by  length  of  service.]  The  officers  of  the  staff  corps 
of  tlie  Navy  shall  talve  precedence  in  their  several  coqjs,  and  in  their  several 
grades,  and  with  officers  of  the  line  with  whom  they  hold  relative  rank  according 
to  length  of  service  in  the  Navy.— (3  Mar.,  1871,  c.  117,  s.  10,  v.  16,  p   537.) 

689 


Sec.  1485. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Amendment  to  this  section  was  made  l)v  act  of 
March  4,  1913  (37  Stat.,  8'J2),  \v hich  pro^^d- 
ed  that  oflicers  who  enter  the  Kavy  "after 
the  passajje  of  this  act" '  shall  take  prece- 
dence when  of  the  same  grade  according  to 
their  respective  dates  of  commission  in  that 
grade;  and  by  act  of  August  20,  1916  (39 
Stat.,  578),  which  provided  "that  ofhcers 
shall  take  rank  in  each  staff  corps  according 
to  the  dates  of  commission  in  the  several 
grades,  excepting  in  cases  where  they  have 
gained  or  lost  numbers.' ' 
'  'Relative ' '  rank  was  abolished  and  actual  rank 
substituted  therefor  bv  act  of  March  3, 1899, 
section  7  (:'.0  Stat.,  lOhr.). 
Section   1485  modified  by  subsequent 
legislation. — The  act  of  August  29,  1916  (cited 
above),  superseded  and  repealed  the  following 
words  in  section  1485 :    '  'The  officers  of  the  staff 
corps  of  the  Navy  shall  take  precedence  in  their 
several  corps,  and  in  their  several  grades,    *    * 
*    according  to  length  of  ser^•ice  in  the  Navy." 
(File  22724-40,  Apr.  24,  1919.) 

Section  1485  was  modified  bv  section  1486,  as 
amended  by  act  of  March  3, 1881  (21  Stat.,  510), 
relating  to  constructive  service  to  be  credited  to 
staff  officers  for  purposes  of  precedence,  and  was 
superseded  \vith  reference  to  the  vounger  officers 
oftheNavybyactofMarch4, 1913  (37  Stat.  892), 
providing  that  all  officers  who  enter  the  Navy 
after  said  act  of  March  4,  1913,  "shall  take  pre- 
cedence when  of  the  same  grade  according  to 
their  respective  dates  of  commission  in  that 
grade."  (File  22724-40,  Apr.  24,  1919.)  Under 
this  amendment  of  March  4,  1913,  all  officers 
thereafter  commissioned,  including  midship- 
men who  were  under  instruction  on  March  4, 
1913,  should  take  precedence  with  other  officers 
of  the  same  rank  "according  to  their  respective 
dates  of  commission."  (File  11130-37,  Jan.  19, 
1917.) 

When  of  the  same  grade,  line  officers  of  the 
Navy  take  precedence  ^vith  each  other  accord- 
ing to  date  of  commission,  officers  of  the  Marine 
Corps  take  precedence  with  each  other  accord- 
ing to  date  of  commission,  and  officers  of  the 
Army  take  precedence  -wath  each  other  accord- 
ing to  date  of  commission.  Officers  of  the 
Army,  Na^^,  and  Marine  Corps,  of  correspond- 
ing rank,  take  precedence  wdth  each  other 
according  to  date  of  commission.  The  date-of- 
com  mission  rule  is  the  \m\vritten  law  of  the 
Army  and  Navy  (citing  25  Op.  Atty.  Gen.,  517; 
see  also  26  Op.  Atty.  Gen.,  16).  this  unwrit- 
ten law  was  changed  by  section  1485  with  ref- 
erence to  staff  officers  of  the  Na\'y ,  whose  prece- 
dence as  between  themselves  was  by  that  sec- 
tion made  to  depend  upon  length  of  scrAdce, 
and  based  upon  this  latter  rule  for  determining 
precedence  of  staff  officers  with  each  other,  and 
e\ddently  recognizing  the  impracticability  of 
having  a  different  rule  applied  to  deterrnine 
their  precedence  ^vith  officers  of  the  line.  Con- 
gress by  the  same  section  made  the  length-of- 
Service  rule  applicable  in  determining  the  pre- 
cedence of  staff  officers  with  the  officers  of  the 
line.  By  act  of  August  29,  1916,  Congress  re- 
verted to  the  general  and  established  date-of- 
commission  rule  as  applicable  to  the  precedence 
of  staff  ofiicers  with  each  other.    As  a  result. 


staff  officers  now  take  precedence  in  each  rank 
according  to  date  of  commission,  the  same  as 
line  officers  take  precedence  in  each  rank  accord- 
ing to  date  of  commission,  and  the  same  as 
officers  of  the  Army  and  Marine  Corps  take  pre- 
cedence with  each  other  and  with  all  officers  of 
the  Navy  according  to  date  of  commission. 
(File  22724-40,  Apr.  24,  1919.) 

The  act  of  August  29,  1916,  having  destroyed 
the  very  foundation  upon  which  the  length-of- 
ser^^ce  rule  was  made  applicable  as  between 
officers  of  the  staff  and  officers  of  the  line,  the 
retention  of  that  rule  would  be  impossible  of 
enforcement  as  it  would  mean  two  inconsistent 
niles  for  determining  the  precedence  of  staff 
officers  as  between  themselves  and  with  officers 
of  the  line.     (File  22724-40,  Apr.  24,  1919.) 

Section  1485,  Revised  Statutes,  in  so  far  as 
it  provided  that  oflicers  of  the  staff  corps  should 
take  precedence  with  officers  of  the  line  and 
other  staff  corps  by  length  of  serWce  is  abso- 
lutely and  irreconcilably  repugnant  to  the  pro- 
vision in  the  act  of  August  29,  ]  916,  that  officers 
shall  take  precedence  in  each  staff  corps  accord- 
ing to  date  of  commission;  both  laws  can  not 
stand;  if  staff  officers  are  to  take  precedence 
with  each  other  in  the  same  corps  according  to 
date  of  commission  they  can  not  take  prece- 
dence with  the  line  and  other  staff  corps  ac- 
cording to  length  of  serAdce;  if  on  the  other 
hand  the  length-of -service  rule  is  to  be  retained 
and  applied  in  determining  the  precedence  of 
staff  officers  with  officers  of  the  line  and  other 
staff  corps,  then  the  date-of-commission  rule 
for  determining  precedence  of  officers  in  each 
staff  corps  must  give  way  and  the  act  of  August 
29,  1916,  is  rendered  nugatory.  WTiere  it  is 
impossible  to  harmonize  the  provisions  of  two 
statutes,  the  rule  is  settled  that  the  later  statiite 
operates  of  necessity  as  an  implied  repeal.of  the 
earlier.  (File  22724-40,  Apr.  24,  1919;  but  see 
32  Op.  Atty.  Gen.,  476,  noted  below.) 

Held,  that  the  act  of  August  29,  1916,  repeals 
by  necessary  implication  section  1485  of  the 
Rcdsed  Statutes,  and  that  officers  of  the  staff 
corps  must  now  take  precedence  in  each  staff 
corps,  and  with  officers  of  the  line  and  other 
staff  corps,  as  well  as  with  officers  of  the  Army 
and  Marine  Corps,  according  to  date  of  commis- 
sion and  in  no  case  bv  length  of  serAdce.  (File 
22724-40,  Apr.  24,  1919;  file  11130-63,  Sept.  23, 
1919;  C.  M.  O.  280,  1919,  p.  19;  affirmed  on  re- 
consideration, file  11130-^3:1,  Mar.  16,  1920, 
C.  M.  O.  74,  1920,  p.  16,  and  file  11130-63:3, 
Dec.  11,  1920;  see  also  file  11130-67,  Apr.  26 
1920;  file  11130-63:5,  Feb.  14,  1921;  file  11130- 
63:5,  Feb.  28, 1921.  But  see  32  Op.  Atty.  Gen., 
476,  noted  below.) 

The  Attorney  General  haAdng  been  requested 
to  render  an  opinion  as  to  the  effect  of  the  act 
of  August  29,  1916,  upon  section  1485,  ReA-ised 
Statutes,  held:  (1)  That  since  said  act  of  August 
29,  1916,  staff  officers  who  entered  the  NaA'y 
prior  to  March  4,  1913,  take  precedence  with 
officers  of  other  staff  corps,  as  well  as  with  offi- 
cers of  their  own  corps,  according  to  date  of 
commission;  (2)  that  such  staff  officers  take 
precedence  with  officers  of  the  line  according 
to  date  of  commission  in  cases  where  they  are 
associated  with  line  officers  and  it  would  be 


690 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1486. 


impracticable  to  give  them  precedence  among 
themselves  by  date  of  commission  and  at  the 
same  time  to  give  them  precedence  ■vdth  the 
line  officers  by  length  of  ser^'ice;  (3)  that  such 
staff  officers  take  precedence  with  officers  of  the 
line  according  to  length  of  serAdce,  as  pro\T.ded 
by  section  14S5,  in  cases  where  they  are  asso- 
ciated with  line  officers  and  it  would  not  be 
impracticable  to  give  them  precedence  among 
themselves  by  date  of  commission  and  with 
the  line  officers  bv  length  of  ser\'ice.  (32  Op. 
Attv.  Gen.,  476,  Mar.  3',  1921;  C.  M.  0.  4,  1921, 
p.  19.) 

The  conflict  between  section  1485,  RoAised 
Statutes,  and  the  act  of  August  29,  1916,  was 
illustrated  by  the  Attorney  General  as  follows: 
"Suppose  Captain  A  of  the  Construction  out- 
ranks Captain  B  of  the  same  corps  by  date  of 
commission.  Captain  B  outranks  Captain  C  of 
the  line  both  by  date  of  commission  and  by 
length  of  serA-lce.  and  Captain  C  outranks  Cap- 
tain A  by  length  of  serAice.  ObAdously  the 
order  of  precedence  of  these  officers  can  not  be 
determined  by  apphing  either  or  both  of  the 
above  st  itutes.  Under  the  act  of  August  29, 
1916.  Captain  A  outranks  Captain  B.  Init  that 
act  does  not  define  the  relatiA'e  rank  of  these 
officers  to  Captain  C;  that  is  done  by  Re\ised 
Stitutes.  section  1485,  according  to  which  Cap- 
tain B  outranks  Captain  C,  who  in  turn  out- 
ranks Captain  A.     But  Captain  B  does  not  out- 


rank Captain  A,  because  that  is  contrary  to  the 
express  command  of  the  act  of  August  29".  1916." 
In  the  situation  thus  supposed,  it  was  held  by 
the  Attorney  General  that  all  three  officers 
would  take  precedence  by  date  of  commission; 
but  that  "Re\ised  Statutes  section  1485  is 
repealed  only  as  applied  to  that  situation;" 
that  '"it  does  not  follow  that  section  1485  is 
repealed  as  to  those  situations  to  which  it  can 
be  applied  without  coming  in  conflict  with  the 
act  of  August  29,  1916,  as,  for  instance,  between 
Captains  A  and  C  or  Captains  B  and  C."  not- 
withstanding that  "the  result  will  be  that 
Captain  A  mil  outrank  Captain  C  in  some  cir- 
cumstances, while  in  others  the  order  of  pre- 
cedence \\i\\  be  reversed,"  and  that  "if  there  is 
one  rule  of  precedence  for  staff  officers  among 
themselves  and  a  different  one  between  staff 
and  line  officers  it  may  happen  that  an  officer 
will  find  that  his  inferior  of  yesterday  is  his 
superior  to-day,  and  that  because  of  this  fact 
great  difficulty  will  be  experienced  in  adminis- 
tering the  laws  applicable  to  the  Navv."  (32 
Op.  Atty.  Gen..  476,  Mar.  3,  1921;  compare  22 
Op.  Atty.  Gen.,  255,  257,  holding  in  another 
connection  that  "to  so  legislate  as  to  prevent 
the  application  of  pre\ious  legislation  is  to 
repeal  the  preAaous  legislation  bv  implication;" 
see  also  South  Ottawa  v.  Perkins",  94  U.  S.,  267.) 
For  other  cases  see  note  to  section  1486, 
Revised  Statutes. 


Sec.  1486.  [Length  of  service,  liow  estimated.]  In  estimating  the  length  of 
service  for  such  purpose,  the  several  officers  of  the  staff  cor]:)S  shall,  respectively, 
take  precedence  in  their  several  grades  and  with  those  officers  of  the  line  of  the 
Navy  ^vith  whom  they  hold  relative  rank  who  have  been  in  the  naval  service 
six  years  longer  than  such  officers  of  said  staff  coqDS  have  been  in  said  service; 
and  officers  who  have  been  advanced  or  lost  numbers  on  the  Navy  Register  shall 
be  considered  as  having  gained  or  lost  length  of  service  accordingly. — (3  Mar., 
1871,  c.  117,  s.  10,  V.  16,  p.  537.) 

at  the  United  States  Military  Academy, 
who  may  hereafter  be  appointed  to  the 
United  States  Naval  Academy,  or  to  the 
United  States  ]\Iilitary  Academy,  shall  not 
be  counted  in  computing  for  any  purpose 
the  length  of  servdce  of  any  officer  in  the 
Na^y  or  in  the  Marine  Corps.  " 

By  act  of  March  3,  1899,  section  13  (30  Stat., 
1007),  it  was  proAdded  "that  all  officers, 
including  warrant  officers,  who  have  been 
cT  may  be  appointed  to  the  Navy  from 
ciA-il  life  shall,  on  the  date  of  appointment, 
be  credited,  for  computing  their  pay,  with 
five  years'  service."  By  act  of  March  4, 
1913  (37  Stat.,  891),  it  was  enacted  that 
said  pro\Tsion  in  the  act  of  March  3,  1899, 
"shall  not  apply  to  any  person  entering 
the  Navy  from  and  after  the  passage  of 
this  act." 

By  act  of  August  29,  1916  (.39  Stat.,  578),  it  was 
provided  "that  officers  shall  take  rank  in 
each  staff  corps  according  to  the  dates  of 
commission  in  the  several  grades,  except- 
ing in  cases  where  they  may  have  gained 
or  lost  numbers." 


Amendment  to  this  section  was  made  by  act  of 
March  3,  1881  (21  Stat.,  510),  which  added 
thereto  the  following:  ''Provided,  That 
nothing  in  this  section  shall  be  so  con- 
strued as  to  give  to  any  officer  of  the  staff 
corps  precedence  of,  or  a  higher  relative 
rank  than  that  of,  another  staff  officer  in 
the  same  grade  and  corps,  and  whose  com- 
mission in  such  grade  and  corps  antedates 
that  of  such  officer. "  It  was  further  modi- 
fied by  act  of  March  3,  1899,  section  7  (30 
Stat.,  1006),  which  abolished  "relative" 
rank  and  substituted  therefor  actual  rank. 
By  act  of  March  4,  1913  (37  Stat.,  892),  it 
was  provided  that  "section  fourteen  hun- 
dred and  eighty-six  of  the  RoAdsed  Statutes 
shall  not  apply  in  the  case  of  officers  who 
enter  the  Navy  after  the  passage  of  this  Act 
and  all  such  officers  shall  take  precedence 
when  of  the  same  grade  according  to  then- 
respective  dates  of  commission  in  that 
grade. "  The  same  act  of  March  4,  1913 
(37  Stat.,  891),  provided  that  "hereafter 
the  ser\dce  of  a  midshipman  at  the  United 
States  Naval  Academy,  or  that  of  a  cadet 


691 


Sec.  1486. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


IW  act  of  July  11,  1919  (41  Stat.,  140\  it  was 
provided  that  "any  officer  with  the  per- 
manent rank  of  rear  admiral  who  has  here- 
tofore served  a  full  term  and  is  now  serving 
as  chief  of  any  bureau  of  the  Navy  Depart- 
ment shall  be  credited  ^\-ith  serAice  for  all 
purposes  as  provided  by  section  1486  of 
the  Revised  Statutes,  and  nothing  herein 
("ontained  shall  operate  to  increase  the  rank 
or  pay  of  any  such  officer  as  now  authorized 
by  law."' 
See  note  to  section  1485  upon  question 
whether  that  section  is  repealed  by  subsequent 
legislation.     See  also  note  below,  under  "Offi- 
cers who  have  been  advanced  or  lost  numbers." 
Constructive   service. —  It   will   be   noted 
that  section  1485,  Revised  Statutes,  standing 
alone,  made  actual  length  of  service  in  the  Navy 
the  rule  of  precedence  in  the  cases  of  staff  offi- 
cers in  their  several  corps  and  with  officers  of 
the  line  of   corresponding  rank.     By  section 
1486  this  was  modified,  and  proWsion  was  made 
for  crediting  officers  with  what  is  known  as 
"constructive  service"   in  determining  their 
precedence  under  section  1485.    This  so-called 
"constructive   serAdce"    was  credited   in  two 
cases,  namely,  first:  Officers  upon  their  original 
appointment  to  a  staff  corps  were  credited  with 
six   years'    constructive   service   so  that  they 
would  take  precedence,  in  the  language  of  sec- 
tion 1486,  "with  those  officers  of  the  line  of  the 
Na\y  ^\•ith  whom  they  hold  relative  rank  who 
have  been  in  the  Na^y  six  years  longer  than 
such  officers  of  said  staff  corps  have  been  in 
said  8er^^ce;"  and  second:  Officers  advanced 
on  the  Navy  Register  were  credited  with  con- 
structive service  in  fulfillment  of  the  require- 
ment in  section  1486  that  officers  so  advanced 
"shall  be  considered  as  having  gained    *    *    * 
length  of  service  accordingly."     (File  11130-63: 
5,  Feb.  14,  1921.) 

Prior  to  March  4,  1913,  the  precedence 
of  officers  of  the  Navy  was  determined  as 
follows:  (a)  Line  officers  took  precedence  in 
each  grade  according  to  dates  of  commission 
(sec.  1467,  R.  S.);  (b)  staff  officers  took  pre- 
cedence in  each  corps  and  grade  according  to 
length  of  sendee  in  the  Navy  (sec.  1485,  R. 
S.) ;  (c)  officers  of  the  line  and  officers  of  the  staff 
corps  took  precedence  with  each  other,  first, 
according  to  rank  (sec.  1489,  R.  S.),  and  when  of 
the  same  rank,  according  to  length  of  service  in 
the  Na\y  (sec.  1485,  R.  S.);  {d)  in  determining 
length  of  ser\-ice  under  (c),  officers  of  the  staff 
cor])s  were  given  precedence  witli  officers  of 
the  line  of  the  same  rank  who  had  been  in  the 
naval  service  six  years  longer  than  such  officers 
of  said  staff  corps  had  been  in  said  service;  in 
other  Words,  staff  officers  were  credited  with 
constructive  ser\-ice  approximating  six  years 
(sec._  14S6,  R.  S.);  (e)  the  constructive  service 
credited  to  staff  officers  for  purposes  of  pre- 
cedence was  not  to  operate  to  give  any  officer 
of  the  staff  corps  precedence  of  another  officer 
in  the  same  grade  and  corps  whose  commission 
in  such  grade  and  corps  antedated  that  of  such 
officer  (act  Mar.  3,  1881,  21  Stat.,  510,  amend- 
ing sec.  1486.  R.  S.).  (File  111,30-37,  Jan.  19, 
1917;  see  also  file  11130-63:5,  Feb.  14,  1921.) 
In  determining  the  precedence  of  line  and 
staff  officers  (under  (d)  above  noted),  time  spent 
bv  officers  of  the  line  while  under  instruction  as 


midshipmen  was  credited  to  them  as  service  in 
the  Navy.  When  the  midsliipman's  course  of 
instruction  was  six  years,  this  had  the  approxi- 
mate effect  of  placing  a  staff  officer,  entering  the 
service  \\'ith  the  rank  of  ensign,  on  an  equality 
for  pnrpof5es  of  precedence  with  line  officers 
commis-sioned  as  ensigns  at  the  same  time.  It 
occasionally  happened  that  the  staff  ofiicer  was 
disadvantaged  under  the  practical  application 
of  the  various  provisions  under  (f),  noted  above; 
and  when  the  course  at  the  Naval  Academy  was 
reduced  to  four  years,  by  act  of  IMarch  7,  1912 
(37  Stat.,  73),  the  staff  officer  gained  an  ad- 
vantage in  consequence  of  his  continuing  to  be 
credited  %vith  constructive  service  of  about  six 
years.  However,  the  general  purpose  of  the 
legislation  prior  to  March  4,  191.3,  was  to  equal- 
ize the  precedence  of  line  and  staff  officers 
commissioned  in  the  Navy  ^vith  the  rank  of 
ensign  at  approximated  the  same  time.  (File 
11130-37,  Jan.  19,  1917,  citing  15  Op.  Atty. 
Gen.,  336;  see  also  file  111.30-63:5,  Feb.  14, 
1921.) 

A  line  officer  transferred  to  a  staff  corps  could 
not  under  section  1486  as  amended  be  assigned 
a  date  of  precedence  earlier  than  that  of  the 
junior  officer  in  said  corps  at  the  time  of  such 
transfer.  Thus  an  ensign  commissioned  as  an 
assistant  naval  constructor  with  the  rank  of 
lieutenant  (junior  grade),  two  and  one-half 
years  before  his  former  classmates  were  pro- 
moted to  the  grade  of  lieutenant  (junior  grade) 
in  the  line,  could  not  retain  his  original  date  of 
precedence  where  this  was  earlier  that  tliat 
of  an  officer  prcAdously  commissioned  in  the 
Constniction  Corps.  (File  11130-28,  Feb.  5, 
1916,  citing  file  1667,  Apr.  25,  1900.) 

In  determining  the  precedence  of  staff  officers 
with  officers  of  the  tine,  under  section  1486, 
Revised  Statutes,  line  officers  who  gained 
numbers  as  the  result  of  their  final  graduating 
examination  at  the  Naval  Academy  (see  sec. 
1483,  R.  S.)  were  considered  to  have  gained 
length  of  service  accordingly,  and  a  staff  officer 
could  not  claim  the  right  to  precedence  aliead 
of  a  line  officer  so  advanced  in  numbers  because 
of  the  fact  that  such  line  officer's  actual  date  of 
entrj.'  into  the  ser\'ice  was  not  six  years  prior 
to  the  date  such  staff  officer  was  commissioned. 
(File  11130-2,  Aug.  10,  1908.) 

The  amendment  of  March  4,  1913,  was 
intended  to  place  commissioned  officers  of  the 
line  and  staff  on  an  absolute  equality  in  the 
future,  by  abolishing  credit  for  midshipman's 
ser\-ice  in  the  one  case,  and  credit  for  con- 
structive service  in  the  other,  and  requiring 
that  all  officers  thereafter  entering  the  Na\'y 
should  take  precedence  "according  to  their 
respective  dates  of  commission."  At  the  same 
time  Congress  did  not  intend  to  deprive  mid- 
shipmen already  at  the  Naval  Academy  of  sub- 
stajitial  benefits  which  were  promised  them  in 
the  matter  of  pay  and  retirement  when  they 
were  appointed ;  and  accordingly,  in  providing 
that  service  at  the  Naval  Academy  should  not 
thereafter  be  credited  "for  any  pui-pose, "  it 
limited  the  application  of  this  provision  to  mid- 
shipmen thereafter  appointed  to  the  Naval 
Academy.  Thus  was  saved  to  other  midsliip- 
men  the  longevity  credit  to  wliich  they  were 
entitled  under  previous  laws  for  pay  and 
retirement.     But  the  act  of  March  4,  1913,  did 


692 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1486. 


not  preserve  to  midshipmen  then  serving  the 
credit  to  which  they  were  entitled  under  pre- 
vious laws  for  purposes  of  precedence  with 
officers  of  the  staff.  It  destroyed  the  inequality 
then  existing,  under  which  midshipmen  were 
credited  with  four  years'  service  at  the  Acad- 
emy while  staff  officers  were  credited  with  six 
years'  constructive  service;  but  it  did  not 
create  a  new  inequality  as  would  be  the  case 
if  midshipmen  then  at  the  Academy  were 
credited  with  four  years'  service  for  precedence, 
while  staff  officers  appointed  from  civil  life 
received  no  credit  whatever.  (File  11130-37, 
Jan.  19,  1917.) 

Scope  of  section  1486. — This  section  has 
on  occasions  been  regarded  as  appljdng  only  to 
appointments  from  civil  life.  This,  however, 
is  in  error,  the  correct  statement  being  that 
section  1486  applies  to  all  officers  who  are  not 
graduates  of  the  Naval  Academv.  (File 
11130-22,  Nov.  17,  1913.) 

A  careful  reading  of  section  1486  will  disclose 
that  its  benefits  are  not  limited  to  staff  oflicers 
appointed  from  civil  life,  or  from  the  enlisted 
personnel.  On  the  contrary,  it  applies  to  all 
staff  officers  however  appointed,  except  in  so 
far  as  its  operation  is  restricted  by  section  1483, 
Revised  Statutes,  fixing  the  precedence  of 
graduates  of  the  Naval  Academy.  Had  it  been 
intended  to  limit  the  provisions  of  section  1486 
to  staff  officers  appointed  from  civil  life.  Con- 
gress would  doubtless  have  so  stated,  as  it  did 
in  the  Ka\'y  personnel  act  of  March  3,  1899, 
section  13  (30  Stat.,  1007),  providing  that  "all 
officers,  including  warrant  officers,  who  have 
been  or  may  be  appointed  to  the  Navj'  from 
civil  life  shall,  on  the  date  of  appointment,  be 
credited  for  computing  their  pay  with  five 
years'  constructive  service."  (File  11130-22, 
Nov.  17,  1913.) 

The  department's  records  disclose  that 
persons  commissioned  as  officers  in  the  staff 
corps  of  the  Na\y,  while  serving  as  midship- 
men, paymasters 'clerks,  or  enlisted  men,  were 
given  a  date  of  precedence  six  years  prior  to 
date  of  commission,  or  the  earliest  date  that 
could  be  assigned  without  gi\ing  them  pre- 
cedence of  senior  officers  in  the  same  corps. 
(File  11130-22,  Nov.  17,  1913.) 

Purpose  of  section  1486, — This  pro\dsion, 
which  gave  the  benefit  of  six  years  of  construc- 
tive service  in  determining  the  question  of 
precedence  among  officers,  was  undoubtedly 
intended  to  equalize  the  officers  of  the  staff 
with  those  of  the  line  by  provision  which  would 
give  them,  in  determining  the  question  of  rank, 
a  period  wMch  would  be  supposed  ordinarily 
to  answer  to  the  time  which  was  expended  by 
the  line  officers  in  their  education,  and  before 
their  proper  duties  as  officers  commenced. 
Were  it  not  for  some  such  pro\T.sion,  the  officers 
of  the  line  would  have  an  advantage  over  those 
of  the  staff  in  tliis,  that  the  period  of  their  educa- 
tion would  be  counted  in  determining  their 
precedence  as  the  term  of  their  service.  As, 
according  to  the  construction  which  had  been 
given  to  the  regulations  of  the  Navy,  six  years 
were  expended  by  the  line  officers  in  their 
education,  it  was  undoubtedly  deemed  proper 
to  fix  this  as  the  time  which  should  be  given 
to  the  staff  officers,  in  order  to  equalize  them 


with   the   line   officers.     (15  Op.  Atty.  Gen,, 
336;  see  also  file  11130-63:5,  Feb.  14,  1921.) 

At  this  time  certain  cadet-engineers  were 
receiving  education  at  the  Naval  Academy, 
but  then  had  only  a  term  of  education  amount- 
ing to  two  years.  This  term  was  subsequently 
increased  to  four  years;  and  it  was.  of  course, 
observed  that,  if  the  engineer  officers  grad- 
uated at  the  Naval  Academy  were  entitled  to 
have,  in  determining  the  question  of  rank,  the 
constructive  service  of  six  years,  they  woiild 
obtain  too  great  an  advantage  over  the  line 
officers,  because  the  term  of  their  education 
would  be  counted  as  a  term  of  service,  while 
in  addition,  they  would  have  what  may  be 
termed  the  fictitious  or  constructive  term  of 
service  allowed  to  the  officers  of  the  staff  corps. 
The  act  of  March  3,  1873  (sec.  1484,  R.  S.), 
therefore,  provided  that  "engineer  officers 
graduated  at  the  Naval  Academy  shall  take 
precedence  with  all  other  officers  with  whom 
they  have  relative  rank,  according  to  the 
actual  length  of  service  in  the  Navy."  While, 
therefore,  in  the  Revised  Statutes  section  1484 
precedes  section  1486,  it  is  in  fact  a  limitation 
or  exception  to  section  1486;  and  when  thus 
read  together  it  vAW  be  seen  that  all  staff  officers 
are  entitled  to  the  benefit  of  the  six  years'  term 
of  service,  with  the  exception  of  those  engineer 
officers  who  graduate  at  the  Naval  Academy. 
(15  Op.  Atty.  Gen.,  336;  see  also  21  Op.  Atty. 
Gen.,  46.) 

Changes  in  dates  of  precedence. — It  has 
heretofore  been  held  by  the  department  that 
no  change  in  dates  of  precedence  should  be 
made  except  in  cases  where  it  is  necessary  so 
to  do  for  the  purpose  of  rectifjdng  palpable 
errors  (citing  indorsement  Sec.  Nav.  to  Bu. 
Nav.,  file  3126-97);  it  has  also  been  held  that 
the  statutes  and  regulations  governing  preced- 
ence having  once  been  determined  in  any  par- 
ticular case,  considerations  of  repose  intervene 
and  become  important;  that  disturbance  of 
the  Navy  lists  is  prejudicial  to  the  service,  and 
should  not  be  sanctioned  where  doubt  exists 
respecting  the  appi^oj^riate  action,  and  where  a 
considerable  length  of  time  has  elapsed.  (File 
11130-22,  Nov.  17,  1913,  citing  cases.) 

Where  only  a  short  time  has  elapsed,  and 
there  are  exceptional  circumstances,  the  date 
of  precedence  assigned  an  officer  of  the  Pay 
Corps  should  be  corrected  and  the  proper  date 
of  precedence  assigned  him,  thereby  avoiding 
great  injustice  wliich  would  otherwise  result 
to  such  officer.     (File  11130-22,  Nov.  17,  1913.) 

Effect  of  ofl&cer's  precedence  upon  pro- 
motion.— The  actual  rank  of  all  officers  of  the 
Navy  has  been  fixed  by  section  1466,  Revised 
Statutes.  But  as  there  are  in  the  staff  corps 
several  officers  of  the  same  grade  and  rank,  it 
was  necessary  that  their  relative  rank  as  be- 
tween themselves  and  officers  of  the  same  rank 
in  the  line  be  fixed  and  determined.  _  This  is 
done  by  sections  1485  and  1486,  and  is  deter- 
mined not  by  relative  dates  of  commission  but 
by  length  of  service  in  the  Navy.  These  sec- 
tions do  not  attempt  to  fix  the  actual  rank  which 
staff  officers  hold  in  the  Na\T.  or  to  change  that 
rank  as  fixed  by  section  1466,  but  merely  define 
the  relative  rank  which  these  officers  have  as 
between  themselves  and  with  ofiicers  of  the 
same  rank  in  the  line.    That  is,  officers  of  the 


693 


Sec.  1486. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


same  rank  shall,  aa  between  themselves,  take 
precedence  accordins:  to  their  lensrth  of  service. 
Tims,  a  captain  in  a  staff  corps  will  take  prece- 
dence of  a  cuptaiii  in  the  same  or  a  different 
corps,  or  a  captain  in  the  line  whose  service  in 
either  case  has  been  for  a  shorter  time  than  his. 
But  in  estimating  lii.«  lentrth  of  service  the  staff 
ofHcer  is,  under  -section  1 ISG,  credited  with  six 
years  more  of  ser\-ice  than  the  line  oflicers,  this 
givine:  the  staff  oflicer  precedence  of  line  officers 
of  tLe  same  rank  but  wlio  have  not  served  six 
years  more  than  he;  while  as  between  staff 
officers  actual  lens:th  of  service  determines  the 
order  of  precedence.  But  there  is  nothina;  in 
these  sections  which  gives  to  len<];th  of  ser\ice, 
either  actual  or  comparative,  the  effect  of  pro- 
moting an  oTicer  to  a  hiirher  actual  rank. 
Promotions  in  rank  are  regulated  by  different 
provisions,  ''"hey  merely  fix  the  reIati^•e  rank 
or  precedence  between  officers  of  the  same  rank 
and  who,  but  for  this,  would  ha^e  been  e'  ual 
in  rank  and  precedence.  And  the  use  of  the 
word  "precedence"  instead  of  'rank"  is  also 
significant  as  showing  that  this  was  the  purpose 
of  the  section.  Accordinglv,  held  that  the  act 
of  June  29,  1906  (:i4  Stat.,'554),  providing  for 
the  retirement  of  certain  officers  of  the  I^  a^-y, 
authorizes  their  retirement  with  the  rank  of  the 
next  higher  grade,  and  where  there  are  more 
ranks  than  one  in  the  next  higher  grade,  as  in 
the  staff  corps  of  the  Na^y ,  the  officer  is  entitled 
on  the  retired  li"t  to  the  rank  next  above  that 
held  bv  him  at  the  time  of  retirement,  and  is 
not  entitled  on  the  retired  list  to  a  rank  more 
than  one  step  aboA'^^e  that  held  at  retirement 
because  of  length  of  serAace  in  the  Na^y ;  and 
that  sections  1485  and  1486  have  nothing  what- 
e\er  to  do  with  determining  whether  the  ad- 
vancement of  such  officer  should  be  that  of  one 
rank  or  more  than  one;  nor  do  those  sections 
interfere  with  or  affect  the  usual  order  of  pro- 
motion of  such  officers  in  the  Navy.  (26  Op. 
Atty.  Gen.,  496.) 

In  the  absence  of  some  specific  pro\asion  of 
law  the  distribution  of  paymasters  between  the 
ranks  allowed  in  said  grade  is  primarily  within 
the  discretion  of  the  Executive.  Sections 
1485  and  1486,  Revised  Statutes,  provide  for 
establishing  the  precedence  of  officers  of  the 
staff  corps  between  officers  of  the  same  corps, 
officers  of  the  different  staff  corps,  and  officers 
of  the  same  rank  in  the  line  of  the  NaA-y.  It 
has  been  the  practice  of  the  Navy  Department 
for  many  years  to  use  the  statutes  to  fix  the 
date  on  which  staff  officers  shall  attain  a  liigher 
rank.  The  staff  officer  takes  precedence  next 
below  a  certain  line  officer  of  the  same  credited 
servdce.  This  line  officer  is  known  in  the  serv- 
ice as  the  staff  officer's  '"running  mate"  and 
by  the  practice  referred  to,  when  the  "running 
mate"  is  regularly  promoted,  or  fails  in  exami- 
nation, the  staff  officer  is  advanced  to  the  higher 
rank.  The  Executive  having  the  discretion  as 
to  the  changing  of  ranks  in  the  grade  of  paymas- 
ter may,  of  course,  act  directly  in  each  case 
and  appoint  or  notify  the  officer  that  he  is 
appointed  or  advanced  on  the  date  of  the  noti- 
fication or  on  a  date  subsequent  thereto.  He 
may  also  make  regulations  providing  for  the 
ascertainment  of  the  date  upon  which  the  staff 
officer  is  entitled  to  advancement.  He  has  not 
made  such  regulations;  but  by  a  practice  which 


is  said  to  ha\'e  existed  for  60  years  has  estab- 
lished the  rule  above  stated  by  which  to  deter- 
mine the  date  upon  which  the  officer  shall  be 
advanced.  Such  long-established  practice  istlie 
equivalent  of  a  regulation.  (16  Comp.  Dec, 
662.)  Note. — At  the  time  this  decision  was 
rendered  the  Navy  Regulations  (1913)  provided 
(art.  R  1005)  that  "civil  engineers  shall  be 
advanced  in  rank  to  the  two  grades  of  lieutenant 
commander  and  lieutenant  on  the  same  date 
and  with  the  line  officers  with  whom  they  take 
precedence,  in  the  same  manner  as  officers  of 
the  other  staff  corps  of  the  Nai-y . "  It  hiis  since 
been  provided  by  law  that  "officers  of  the  lower 
grades  of  the  Medical  Corps,  Pay  Corps  (now 
Supply  Corps),  Construction  Corps,  and  Corps 
of  Civil  Engin  >ers  shall  be  advanced  in  rank 
up  to  and  including  the  rank  of  lieutenant  com- 
mander with  the  officers  of  the  line  with  whom 
or  next  after  whom  they  take  precedence  under 
existing  law"  (act  Aug."  29,  1916,  39  Stat.,  576), 
and  that  the  advancement  of  staff  officers  of  the 
Navy  to  the  ranks  of  commander,  captain,  and 
rear  admiral  shall  be  by  selection  (act  July  1, 
1918,  40  Stat.,  718). 

Section  1485  fixes  precedence  of  officers  of 
the  staff  cor]>s  without  affecting  their  rank  or 
office.     (31  Op.  Atty.  Gen.,  80.) 

"OflB.cers  -who  have  been  advanced  or 
lost  numbers." — A  line  officer  promoted  by 
selection  to  the  next  higher  grade  is  to  be  re- 
garded as  having  been  advanced  in  numbers 
on  the  Navy  Register  and  gained  length  of 
service  accordingly;  he  should  be  credited 
with  a  constructive  length  of  service  necessary 
and  sufticient  to  place  him  above  the  officers 
over  whom  he  was  thus  advanced.  The  offi- 
cers over  whom  he  was  advanced  are  not  to  be 
regarded  as  having  lost  numbers  and  length  of 
service.  _  The  promotion  by  selection  is  to  be 
accomplished,  not  by  inflicting  any  injury 
upon  officers  who  had  been  less  fortunate,  per- 
haps, in  their  opportunities;  but  by  conferring 
promotion  upon  the  officer  advanced.  The 
proceeding  is  one  of  advancement  strictly,  and 
m  no  case  operates  to  degrade  any  officer  or 
deprive  him  of  anything  which  he  had  already 
obtained  by  length  of  serWce.  Cases  might 
be  supposed  in  which  it  might  do  him  inciden- 
tal injury  by  placing  above  him  an  officer  who 
stood  below  him,  but  his  own  position  with 
reference  to  all  grades  of  the  NaA-y  would  be 
that  which  it  originally  was.  Therefore  in 
regulating  the  relative  rank  of  the  staff  and 
the  line,  under  section  1486,  Revised  Statutes, 
no  officer  of  the  line  would  be  found  to  have 
lost  anything  of  his  actual  length  of  ser\dce. 
Quaere:  Whether  the  phrase,  "officers  who 
have  been  advanced  or  lost  numbers  on  the 
Navy  Register  shall  be  considered  as  having 
gained  or  lost  length  of  service  accordingly," 
is  intended  to  use  the  words  "gained"  and 
"  lost"  as  terms  which  are  the  converse  of  each 
other  aiid  refers  to  such  incidental  loss  as  occurs 
by  change  in  relative  position  between  officers, 
or  whether  the  expression,  "  lost  length  of  serv- 
ice," is  to  be  considered  as  referring  to  those 
officers  who  may  have  been  degraded,  as  by 
sentence  of  court-martial?  (17  Op.  Atty. 
Gen.,  56.) 

In  17  Op.  Atty.  Gen.,  56  (noted  above),  the 
case  was  presented  of  a  line  officer,  Francis  M. 


694 


The  Navy. 


rt.  J.  REVISED  STATUTES. 


Sec.  1487. 


Ramsay,  who  entered  the  service  on  October  5, 
1850,  and  who,  under  the  act  of  July  25,  1866 
(14  Stat.,  222),  was  promoted  by  selection  and 
thereby  advanced  on  the  NaA'y  Register  next 
above  a  line  officer,  Richard  L.  Law,  who 
entered  the  service  February  17,  1841.  The 
Attorney  General  held  that  Ramsay  should, 
under  section  1486,  "be  considered  as  having 
gained  length  of  service  according  to  his  pro- 
motion." Following  this  opinion  there  was 
published  in  the  Na\y  Re^ster  of  1882,  for  the 
first  time,  a  precedence  list  of  officers  of  the 
Navy,  and  reference  to  this  list  (p.  167)  shows 
that  Capt.  Ramsay  was  given,  pursuant  to 
the  Attorney  General's  opinion,  a  date  of  pre- 
cedence as  February  17,  1841,  being  the  same 
date  as  that  held  by  Capt.  Law,  next  above 
whom  Ramsay  was  so  advanced.  Thus  Ramsay 
was  credited  with  constructive  ser\T.ce  of  more 
than  nine  years  for  purposes  of  precedence. 
This  opinion  of  the  Attorney  General  continued 
to  be  followed  by  the  Navy  Department  until 
a  comparatively  recent  date  in  the  publication 
of  precedence  tables  in  the  annual  Navy 
Register.  (File  11130-63:5,  Feb.  14,  1921, 
citing  precedents.) 

The  first  departure  from  the  rule  required  by 
the  Attorney  General's  opinion  (17  Op.  Atty. 
Gen.,  56)  appears  to  have  occurred  in  certain 
cases  of  staff  officers  who  were  advanced  to  the 
rank  of  rear  admiral  in  1910,  without  any  change 
in  their  dates  of  precedence.  No  explanation 
of  this  departure  is  forthcoming,  other  than  that 
the  Attorney  General's  opinion  and  the  manda- 
tory pro\asion  of  section  1486  must  have  been 
overlooked  or  disregarded  without  authority  of 
law.  Similarly,  in  the  cases  of  certain  officers, 
line  and  staff,  who  have  been  advanced  to  the 
ranks  of  commander,  captain,  and  rear  admiral 
by  selection  in  accordance  with  the  acts  of 
August  29,  1916  (39  Stat.,  578),  and  July  1,  1918 
(40  Stat.,  718),  such  advancement  has  not  been 
accompanied  by  any  change  in  their  dates  of 
precedence  as  required  by  the  Attorney  Gen- 
eral's opinion  and  section  1486.  (File  11130 
63:5,  Feb.  14,  1921.) 

Held,  that  officers  of  the  line  and  staff  of  the 
Navy,  who  entered  the  Navy  prior  to  March  4, 
1913,  and  who  have  been  advanced  on  the  Navy 
Register,  should  be  credited,  for  purposes  of 
precedence,  in  accordance  with  section  1486, 
with  "constructive  ser\T.ce"  sufficient  to  place 


them  ahead  of  all  others,  line  and  staff,  over 
whom  they  have  been  so  advanced.  This 
applies  as  much  where  officers  have  been  ad- 
vanced by  selection  over  officers  in  their  o^vn 
corps  as  in  any  other  case.  (32  Op.  Atty.  Gen., 
476,  Mar.  3,  1921,  following  17  Op.  Atty  Gen., 
56.) 

The  advancement  of  an  officer  in  numbers 
pursuant  to  a  special  act  of  Congress  (Sept.  30, 
1890,  26  Stat.,  552,  case  of  Chief  Engineer 
George  Wallace  Mehdlle),  operates  to  make 
him  gain  length  of  ser\ice  under  section  1486, 
Re\dsed  Statutes,  but  this  proxdsion  of  that 
section  has  reference  only  to  the  question  of 
rank  and  precedence  mentioned  in  section 
1485,  and  does  not  operate  to  increase  his  length 
of  sendee  for  purposes  of  pav.  The  act  of 
March  3,  1883  (22  Stat.,  473),"pro\dding  that 
officers  shall  be  credited  with  '"the  actual  time 
they  may  have  served  as  officers  or  enlisted  men 
in  the  Regular  or  Volunteer  Army  or  Nav\'', 
or  both,"  relates  to  crediting  actual  ser\-ice 
which  is  distinct  from  constructive  ser\'ice 
which  an  officer  gains  under  section  1486  by 
advance  in  numbers.     (5  Comp.  Dec,  756.) 

Where  a  warrant  officer  is  sentenced  by 
court-martial  to  loss  of  niiml>ers,  the  effect  of 
which  is  to  place  him  below  an  officer  of  a 
later  date  of  appointment,  he  is  to  be  regarded 
as  haAing  lost  length  of  serWce  accordingly, 
and  is  not  entitled  to  promotion  under  the  act 
of  April  27,  1904(33  Stat.,  346),  which  author- 
izes the  promotion  of  warrant  officers  "after 
six  years  from  date  of  warrant,"  until  the  officer 
next  above  him  in  the  list  has  become  due  for 
promotion.  (File  17789-20,  Dec.  18,  1913; 
approved  by  President,  Feb.  18,  1914.) 

Miscellaneous. — A  Na\'y  regulation  pro- 
^^Lding  that,  '"  in  al  cases  where  commissioned 
office  s  of  the  different  corps  have  the  same 
date  of  precedence,  they  shall  take  rank  as 
follows:  1.  Line  officers.  2.  Medical  officers. 
3.  Pay  officers.  4.  Engineer  officers,  "is  within 
the  authority  conferred  upon  the  Secretary  of 
the  Na\^  by  Re\dsed  Statutes  1547.  (21  Op. 
Atty.  Gen.,  46.) 

Qu?ere:  Whether  the  question  could  be  pre- 
sented in  any  form  for  judicial  determination, 
whether  the  practice  of  the  Naw  Department 
with  regard  to  the  rank  and  precedence  of  offi- 
cers conforms  to  section  1485  of  the  Re\dsed 
Statutes?     (U.  S.  v.  Alger,  152  U.  S., 384,  397.- 


Sec.  1487.  [Quarters.]  No  staff  officer  shall,  in  virtue  of  his  relative  rank 
or  precedence,  have  any  additional  right  to  quarters. —  (3  Mar.,  1871,  c.  117, 
s.  10,  V.  16,  p.  537.) 


Amendment  to  this  section  was  made  by  act  of 
March  3,  1899,  section  7  (30  Stat.,  1006), 
which  abolished  ■'relative"  rank  and  sub- 
stituted actual  rank  therefor. 

Allowances  for  officers  of  the  Army  are  made 
applicable  to  officers  of  the  Navv  by  act  of 
March  3,  1899,  section  13  (30  Stat.,  1007), 
which  pro^'ided  that  commissioned  officers 
of  the  line  of  the  Navy  and  of  the  Medical 
and  Pay  Corps  shall  receive  the  same 
allowances,  except  forage,  as  may  be  pro- 
vided by  or  in  pursuance  of  law  for  the 
officers  of  corresponding  rank  in  the  Army. 
By  act  of  May  13,  1908  (35  Stat.,  128),  "it 


was  provided  that  "hereafter  all  commis) 
sioned  officers  of  the  active  list  of  the  Nav'y 
shall  receive  the  same  pay  and  allowances 
according  to  rank  and  length  of  service." 
However,  the  same  act  made  an  exception 
in  the  cases  of  chaplains,  by  providing  that 
"the  pay  and  allowances  of  chaplains  in 
the  Navy  shall  in  no  case  exceed  that  pro- 
vided for  lieutenant  commanders."  This 
exception  was  removed  bv  act  of  August 
29,  1916  (39  Stat.,  581),  which  reenacted 
the  provision  in  the  act  of  May  13,  1908, 
without  such  exception.  The  correspond- 
ing ranks  of  officers  of  the  Army  and  officers 


695 


Sec.  148' 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


of  the  Navy  are  prescribed  by  section  1466, 
Revised  Statutes.  The  designation  of  the 
"Pay  ('orps"  was  changed  to  '" Supply, 
Corps"  bv  act  of  July  il,  1919  (41  Stat., 
147). 

"  During  the  war,  in  such  cases  as  may  be  ap- 
proved l)y  the  Secretary  of  the  Navy,  this 
appropriation  shall  be  available  for  the  hire 
of  (jiiarters  for  ollicers  attached  to  sub- 
marines when  they  are  required  to  be  on 
shore  and  (iovernment  cjuarters  are  not 
available."  (Act  July  1,  1918,  40  Stat., 
728,  pro\iso  to  appropriation  for  "Pay  of 
the  Na\y,"  wldch  apj)ropriation  also  makes 
provision  ''for  hire  of  quarters  for  ollicers 
serAang  with  troops  where  there  are  no 
public  quarters  belonging  to  the  Govern- 
ment, and  where  there  are  not  sufficient 
quarters  possessed  by  the  United  States 
to  accommodate  them,  or  commutation 
of  quarters  not  to  exceed  the  amount  which 
an  oflicer  would  receive  were  he  not  serv- 
ing with  troops  and  hire  of  quarters  for 
officers  and  enlisted  men  on  sea  duty  at 
such  times  as  they  may  be  deprived  of  their 
quarters  on  board  ship  due  to 'repairs  or 
other  conditions  which  may  render  them 
uninhabitable.") 

"During  the  present  emergency  every  com- 
missioned otlicer  of  the  Army  of  the  United 
States  on  duty  in  the  field,  or  on  active 
duty  without  the  territorial  jurisdiction 
of  the  United  States,  who  maintains  a 
place  of  abode  for  a  wife,  child,  or  depend- 
ent parent,  shall  be  furnished  at  the  place 
where  he  maintains  such  place  of  abode, 
without  regard  to  personal  quarters  fur- 
nished him  elsewhere,  the  number  of  rooms 
prescribed  by  the  Act  of  March  second, 
nineteen  hundred  and  seven  (Thirty- 
fourth  Statutes,  page  eleAen  hundred  and 
sixty-nine),  to  be  occupied  by,  and  only 
Bo  long  as  occupied  by,  said  vdie,  child, 
or  dependent  parent;  and  in  case  such 
quarters  are  not  available  every  such  com- 
missioned officer  shall  be  paid  commuta- 
tion thereof  and  commutation  for  heat  and 
light  at  the  rate  authorized  by  law  in  cases 
where  public  quarters  are  not  available; 
but  nothing  in  this  Act  shall  be  so  con- 
strued as  to  reduce  the  allowances  now 
authorized  by  law  for  any  person  in  the 
Army."  (Act  Apr.  16, 1918,  40  Stat.,  530.) 
By  naval  appropriation  act  of  July  11, 
1919  Ml  Stat.,  140),  it  was  provided  that 
said  act  of  .April  16,  1918,  "granting  under 
certain  conditions,  to  every  commissioned 
officer  of  the  Army  the  right  to  quarters 
in  kind  for  their  dependents  or  the  author- 
ized commutation  therefor,  including  the 
allowances  for  boat  and  light,  shall  here- 
after be  construed  to  apy)ly  to  officers  of 
the  Navy  and  Marine  Corps  only  during 
the  period  of  the  war  an.i  in  no  event  be- 
yond October  1,  1919."  Said  enactment 
of  July  11,  1919,  was  expressly  repealed 
by  Joint  Resolution  of  December  24,  1919 
(41  Stat.,  384),  which  further  provided 
that  officers  of  the  Navy  and  Marine  Corps 
"shall  be  entitled  to  all  the  rights  and 
benefits  under  said  act  of  April  16,  1918 
(Public,  numbered  129),  from  and  after 


October  1,  1919,  and  during  the  present 
emergency."  By  act  of  May  18,  1920  (41 
Stat.,  602),  said  allowances  under  the 
Act  of  .\pril  16,  1918,  were  continued  until 
June  30,  1922. 

"Hereafter  the  Secretary  of  the  Navy  may 
determine  where  and  when  there  are  no 
public  (juarters  available  for  persons  in  the 
Navy  and  Marine  Corps,  or  serving  there- 
with, within  the  meaning  of  any  acts  or 
parts  of  acts  relating  to  the  assignment  of 
quarters  or  commutation  therefor."  (Act 
July],  1918,  40  Stat.,  718.) 

"Hereafter  officers  temporarily  absent  on  duty 
in  the  field  shall  not  lose  their  right  to 
quarters  or  commutation  thereof  at  their 
permanent  station  while  so  temporarily 
absent."  (Act  Feb.  27,  1893,  27  Stat", 
480.) 

Marine  officers  are  entitled  to  receive  the  same 
allowances  as  are  or  may  be  provided  by  or 
in  pursuance  of  law  for  the  officers  of  like 
grades  in  the  infantry  of  the  Army.  (Sec. 
1612,  R.  S.) 

Special  allowances  for  maintenance  to  officers 
serving  under  unusual  conditions  may  be 
paid  from  the  appropriation  "Pay,  Mis- 
cellaneous." (Act  June  4,  1920,  41  Stat., 
813.) 

The  allowance  for  quarters  to  officers  of  the 
Army  is  prescribed  by  act  of  March  2,  1907 
(34  Stat.,  1168, 1169),  amending  act  of  June 
17,  1878,  section  9  (20  Stat.,  151),  to  read 
as  follows:  "That  at  all  posts  and  stations 
where  there  are  public  quarters  belonging  to 
the  United  States  officers  may  he  fiu*nished 
with  quarters  in  kind  in  such  public  quar- 
ters, and  not  elsewhere,  by  the  Quarter- 
master's Department,  as-signing  to  the  offi- 
cers of  each  grade,  respectively,  such  num- 
ber of  rooms  as  is  stated  in  the  following 
table,  namely:  Second  lieutenants,  two 
rooms;  first  lieutenants,  three  rooms;  cap- 
tains, foiu"  rooms;  majors,  five  rooms; 
lieutenant  colonels,  six  rooms;  colonels, 
seven  rooms;  brigadier  generals,  eight 
rooms;  major  generals,  nine  rooms;  lieu- 
tenant general,  ten  rooms:  Provided  further, 
That  at  places  where  there  are  no  public 
quarters  commutation  therefor  may  be 
paid  by  the  Pay  Department  to  the -officer 
entitled  to  the  same  at  a  rate  not  exceeding 
twelve  dollars  per  month  per  room. ' ' 

The  same  act  of  March  2,  1907  (34  Stat.,  1167), 
also  provided  "that  hereafter  the  heat  and 
light  actually  necessary  for  the  authorized 
allowance  of  quarters  for  officers  and  en- 
listed men  shall  be  furnished  at  the  ex- 
pense of  the  United  States  under  such 
regulations  as  the  Secretary  of  War  may 
prescribe." 

By  act  of  March  4,  1915  (38  Stat.,  1069),  it  was 
provided  "that  hereafter,  at  places  where 
there  are  no  public  quarters  available, 
commutation  for  the  authorized  allowance 
therefor  shall  be  paid  to  commissioned  offi- 
cers, acting  dental  surgeons,  veterinarians, 
members  of  the  NiU'se  Corps,  and  pay  clerks 
at  the  rate  of  $12  per  room  per  month." 
(As  to  the  corresponding  ranks  between 
officers  of  the  Armv  and  officers  of  the 
Navy,  see  sec.  1466,  R.  S.) 


696 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1487. 


Transportation    to    be    furnished    families    of 
officers    ordered    to    make    a    permanent 
change  of  station.     (Act  May  18,  1920,  sec. 
12,  41  Stat.,  604.) 
Warrant  officers  and  mates  "shall  hereafter  re- 
ceive the  same  commutation  for  quarters 
as  second  lieutenants  of  the  Marine  Corps  " 
(act  Mar.  3,   1901,    31   Stat.,    1107);    and 
"shall  receive  the  same  allowances  of  heat 
and  light  as  are  now  or  may  hereafter  be 
allowed  an  ensia;n.  United  States  Navy." 
(Act  Aug.  29,  1916,  39  Stat.,  578.) 
Army   laws    fixing    the    allowance    for 
quarters  are  applicable  to  the  Navy  under 
the  act  of  March  3,  1899,  section  13  (SO' Stat., 
1007),  and  May  13,  1908  (35  Stat.,  127,  128),  as 
amended  by  act  of  August  29,  1916  (39  Stat., 
581).     (24  Comp.  Dec,  610.) 

Under  the  law  all  commissioned  officers  of  the 
Navy  are  now  entitled  to  the  same  allowances, 
except  forage,  as  provided  by  law  for  commis- 
sioned  officers  of  the  Army  under  corresponding 
conditions.  (File  26255-471:2,  Apr.  13, 1918;  see 
also  15  Comp.  Dec,  809,  812,  citing  27  Op.  Atty. 
Gen.,  261;  and  see  150  S  &  A.  Memo.,  2753.) 

Comniutation  of  quarters  authorized 
prior  to  specific  legislation. — In  Whittlesey 
V  United  States  (5  Ct.  Cls.,  99),  it  was  held  that 
the  right  of  an  officer  of  the  Army  to  comrnuta- 
tion  of  fuel  and  quarters  did  not,  at  that  time, 
rest  upon  any  specific  legislation;  that  it 
sprung  out  of  the  general  authority  of  the  War 
Department,  and  had  1  )een  indirectly  sanctioned 
bv  Congress  from  the  origin  of  the  Govern- 
ment. In  United  States  v.  Phill)rick  (120 
U.  S.,  52),  it  was  held  that  an  order  of  the 
Secretary  of  the  Navy,  issued  ]\Iay  23,  1866 
(G.  O.  No.  75),  allowing  officers  who  were  not 
provided  with  quarters  on  shore  stations  a  sum 
equal  to  one-third  of  their  pay  in  lieu  of  all 
allowances  except  for  mileage  or  traveling  ex- 
penses under  orders,  was  a  valid  order  under 
the  law  as  it  then  stood.  (See  also  Allen  v.  U. 
S.,  22Ct.  Cls.,300.) 

Authority  for  quarters  does  not  impli- 
edly authorize  commutation. — Commuta- 
tion for  quarters,  fuel,  and  light  not  furnished  to 
an  officer  or  enlisted  man  can  not  be  paid  unless 
authorized  by  some  statute  or  regulation — that 
is,  the  right  to  commutation  does  not  arise  auto- 
matically but  must  be  based  upon  some  specific 
provision  of  law.  Accordingly,  where  an  en- 
listed man  was  entitled  by  Army  Regulations 
to  quarters  at  the  rate  of  one  room,  and  by  statute 
was  entitled  to  heat  and  light  for  the  same,  and 
was  not  furnished  the  quarters  or  heat  and  light, 
he  is  not  entitled  to  commutation  in  the  absence 
of  any  statute  or  authorized  regulation  pro-x-id- 
ing  for  the  pa>anent  of  such  commutation. 
(Smith  V  U.  S.,  47  Ct.  Cls.,  313,  holding  that 
the  second  leader  of<  the  Marine  band,  who 
under  statutes  then  in  force  was  entitled  to  the 
pay  and  allowances  of  a  sergeant  major,  was  not 
entitled  to  commutation  for  quaters  as  there  was 
no  law  or  regulation  authorizing  such  commuta- 
tion in  the  case  of  a  sergeant  major.) 

Assignment  of  quarters. — \\liere  there  are 
different  classes  of  public  officers  entitled  to 
quarters  in  kind  or  commutation  thereof,  the 
Secretary  of  the  Navy  must  be  the  judge  of  how 
the  interest  of  the  Governrrient  may  best  be 
served  in  assigning  the  available  quarters.     If 


civilian  jjrofessors  at  the  Naval  Academy  are 
allowed  quarters  in  kind  or  commutation  there- 
of as  part  of  their  compensation  fixed  by  the 
Secretary  of  the  Navy,  they  would  have  an 
equal  right  thereto  Avith  conunissioned  officers 
entitled  to  quarters  in  kind  or  commutation 
thereof;  and  the  Secretary  of  the  Navy  may' ex- 
ercise his  discretion  in  determining  whether  it 
is  to  the  best  interest  of  the  Government  to 
assign  the  available  quarters  at  the  Naval  Aca- 
demy to  the  civilian  professors  or  to  the  com- 
missioned officers.    (File  11168-4,  Feb.l,  1917.) 

The  question  of  assignment  of  quarters  is  an 
administrative  one,  under  the  control  of  the 
Secretary  of  the  Navy,  whose  orders,  regulations, 
and  decisions  thereon  are  binding  upon  all  per- 
sons in  the  naval  8er\dce;  and  is  not  a  question 
under  the  jurisdiction  of  the  Comptroller  of  the 
Treasury.  The  Secretary  of  the  Navy  is  pre- 
pared to  safeguard  to  the  fullest  extent  the 
interests  of  officers  who  make  payments  in 
accordance  with  any  regulation  or  order  issued 
by  him.     (File  26254-2134,  Dec.  19,  1916.) 

Quarters  permanentl}^  assigned  are  not  avail- 
able for  temporary  assignment  during  periods 
that  they  become  vacant  in  consequence  of 
changes  of  stations,  etc. ,  and  no  quartersassigned 
any  officer  are  available  for  reassingment  dur- 
ing the  temporary  absence  of  the  occupants  on 
duty  for  which  the  law  permits  them  to  be 
absent  without  reduction  of  pay  and  allowances. 
(File  26254-2134,  Dec.  19,  1916;  see  also  file 
26254-2120:1,  Nov.  15,  1916.  See  below  under 
"Officer  temporarily  absent  from  station.") 

The  commandant  of  a  navy  yard  is  not  auth- 
orized to  assign  to  other  than  Marine  officers 
quarters  at  the  navy  yard  under  his  command 
which  were  constructed  for  the  use  of  Marine 
officers  attached  to  said  yard,  even  though  such 
quarters  may  be  temporarily  unoccupied  by 
Marine  officers,  in  the  absence  of  an  order  by 
the  Secretary  of  the  Navy  permitting  the  trans- 
fer of  such  quarters  for  the  use  of  officers  of  the 
Navy.  In  the  absence  of  such  order,  officers  of 
the  Navy  for  whom  no  quarters  are  available 
are  entitled  to  commutation  of  quarters.  (File 
26254-2134,  Dec.  19,  1916.) 

Where  quarters  at  a  navy  yard  are  jjerma- 
nently  assigned  for  the  use  of  officers  detailed  to 
specified  positionsatsaid  yard,andsuch  quarters 
are  temporarily  vacant  by  reason  of  the  change 
of  station  of  said  occupants  or  other  similar  ex- 
igency of  the  service,  such  temporarily  vacant 
quarters  should  not  be  assigned  to  officers  re- 
porting for  duty  in  the  interim,  unless  such 
officers  occupy  positions  at  the  naAy  yard  which 
would  entitle  them  to  such  quarters  perma- 
nently. (File  2743-247,  Bu.  Nav.,  26254-1418, 
Sec.  Nav.,  Feb.  19, 1914;  see  also  file  26254^21.34, 
Dec.  19,  1916.) 

Hire  of  quarters. — ^The  amount  to  be  paid 
for  hire  of  quarters  for  officers  has  no  relation 
whatever  to  the  amount  of  commutation  of 
quarters  to  which  they  may  be  entitled  under 
certain  circumstances.  In  hiring  qxiarters  the 
officer  representing  the  Government  is  supposed 
to  procure  necessary,  reasonable,  and  assuitable 
quarters  as  may  be  obtained,  and  on  the  best 
terms  possible,  and  when  thus  procured  they 
are  to  be  assigned  to  the  officers  entitled  to  the 
same  in  the  same  manner  as  quarters  owned  by 


697 


Sec.  1487. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


the  Government.  (Comp.  Dec,  Feb.  2,  1917, 
192  S.  &  A.  Memo.,  4155.  Note.— The  specific 
question  decided  in  this  case  was  overruled 
by  Comp.  Dec,  Apr.  12,  1917,  file  26254-2131:7, 
noted  below.) 

The  Secretary  of  the  Navy  authorized  the 
commandant  of  the  naA-y  yard.  Mare  Island,  to 
hire  quarters  for  the  officers  of  the  third  sub- 
marine division,  temporarily,  while  the  vessels 
of  that  di^^sion  were  undergoing  repairs  which 
made  them  uninhabitable,  there  being  no 
tender  on  which  they  could  be  quartered  and 
no  quarters  available  at  the  yard.  The  com- 
mandant directed  the  yard  pay  officer  to  arrange 
for  the  hire  of  the  quarters  required,  and  to  pay 
for  them  from  the  appropriation  "Contignent, 
Navy, "  stating  that  the  payment  in  no  case 
should  exceed  the  amount  that  each  officer 
would  be  allowed  as  commutation  of  quarters 
according  to  his  rank  and  for  the  time  that 
quarters  should  be  occupied.  The  quarters 
were  hired  by  the  officers  concerned,  and  in  no 
case  did  the  cost  thereof  exceed  the  allowance 
for  the  number  of  rooms  to  which  their  respec- 
tive ranks  entitled  them,  nor  were  the  prices 
paid  in  excess  of  those  usually  charged  the  gen- 
eral public  for  temporary  occupancy.  The 
amounts  so  paid  for  said  quarters  were  disal- 
lowed by  the  Comptroller  on  the  ground  that 
the  officers  occupying  the  quarters,  being  di- 
rectly and  personalh''  interested,  could  not 
properly  represent  the  Government  but  only 
themselves.  (Comp.  Dec,  Feb.  2,  1917,  file 
26254-2131:6,  192  S.  &  A.  Memo.,  4155.)  On 
reconsideration,  the  Comptroller  allowed  the 
payments  for  hire  of  quarters  in  these  cases, 
but  stated :  "  It  is  expected  that  in  future  when 
it  becomes  necessary  to  hire  quarters  for  officers 
the  Government  will  be  represented  in  making 
the  contract  for  hire  by  some  properly  desig- 
nated official  other  than  the  officer  or  officers 
who  are  to  occupy  the  hired  quarters." 
(Comp.    Dec,  Apr.  12,  1917,  file  26254-2131:7.) 

The  Army  Regulations  pro\ide  for  the  rent- 
ing of  quarters  where  the  public  buildings  are 
inadequate,  but  the  authority  to  rent  is  re- 
served expressly  to  the  Secretary  of  War  and 
can  not  be  exercised  without  his  approval. 
Under  the  Army  Regulations  the  practice  has 
been  for  the  proper  officers  to  obtain  the 
necessary  authority  to  hire  quarters  as  pre- 
scribed in  the  Regulations,  and  deal  directly 
with  the  landlord,  making  disbursements 
directly  to  him  through  the  Department  of 
War,  thus  precluding  the  making  of  indi\Tdual 
contracts  of  rental  for  quarters.  There  is  no 
r^ulation  permitting  individual  discretion 
or  opinion  as  to  the  inadequacy  of  Army 
quarters.  Accordingly,  where  an  officer  has 
quarters  assigned  him  which  are  inadequate 
for  himself  and  wife,  and  rents  rooms  outside 
his  station  without  approval  of  the  Secretary  of 
War,  he  can  not  recover  commutation  or  hire 
of  quarters.    (Moses  v.  U.  S.,  41  Ct.  Cls.,  27.) 

There  is  no  authority  of  law  for  the  hire  of 
quarters  on  shore  for  naval  officers  on  sea  duty, 
the  law  presuming  that  ofiicers  on  sea  duty  shall 
have  quarters  on  board  the  vessel  on  which 
they  are  serving.  This  applies  in  the  case  of 
officers  ordered  to  duty  on  board  a  submarine 
tender,  where  there  are  no  public  quarters 
available  for  such  officers  either  on  board  said 


vessel  or  on  shore.  (23  Comp.  Dec,  109.  But 
see  act  July  1,  1918,  quoted  above.) 

The  annual  naval  appropriation  act  pro- 
vides for  '"hire  of  quarters  for  officers  and 
enlisted  men  on  sea  duty  at  such  times  as  they 
may  be  deprived  of  their  quarters  on  board 
ship  due  to  repairs  or  other  conditions  which 
may  render  them  uninhabitable."  (See  Act 
June  4,  1920,  41  Stat.,  824.) 

"No  public  quarters"  defined. — lender  the 
act  of  June  18,  1S7S,  section  9,  providing  with 
reference  to  the  Army  "that  at  places  where 
there  are  no  public  quarters,  commutation 
therefor  may  be  paid  by  the  Pay  Department 
to  the  officer  entitled  to  the  same,"  etc.,  hfid 
that  officers  are  entitled  to  commutation  of 
quarters  at  places  where  the  public  quarters 
are  "insufficient"'  in  quantity,  "for  at  such 
stations,  in  regard  to  all  officers  necessarily 
excluded  from  public  quarters,  there  are,  with- 
in the  meaning  of  the  proviso,  'no  public 
quarters.'  "    (16  Op.  Atty.  Gen.,  611.) 

Under  the  law  commissioned  officers  of  the 
Navy  are  entitled  to  commutation  of  quarters 
"at  places  where  there  are  no  public  quarters 
available"  (act  Mar.  4,  1915,  38  Stat.,  1069); 
and  the  question  whether  or  not  there  are 
"public  quarters  available,"  is  to  be  de- 
termined by  the  Secretary  of  the  Navy  in 
proper  cases.  (File  28479-141,  Nov.  15,  1915; 
see  act  July  1,  1918,  quoted  above.) 

Public  quarters  are  any  suitable  quar- 
ters provided  by  the  Government. — Any 
suitable  quarters  pro^dded  by  the  Government 
for  the  use  of  an  officer  answers  the  requirement 
for  "public  quarters,"  though  not  expressly 
built  for  Army  officers  and  an  officer  assigned 
to  duty  as  an  Indian  agent  and  furnished  a 
suitable  building  on  the  reservation  for  his 
quarters,  without  charge,  is  not  entitled  to 
receive  commutation  for  quarters.  (U.  S.  v. 
Dempsey,  104  Fed.  Rep.,  197.) 

Officer  occupying  tent. — ^An  officer  de- 
tached from  duty  at  a  station  where  he  was  in 
receipt  of  commutation  of  quarters  and  ordered 
to  duty  with  the  Navy  rifle  team  and  furnished 
a  tent  for  quarters  while  on  such  duty,  is  not 
entitled  to  commutation  of  quarters.  The  fact 
that  he  was  put  to  the  expense  of  providing 
quarters  elsewhere  for  his  family  does  not 
affect  his  right  to  quarters  or  commutation 
therefor  while  on  duty  with  the  Navy  rifle 
team.  (Comp.  Dec,  Aug.  15.  1914.  162  S.  &  A. 
Memo.,  33360 

Officer  occupying  room  as  guest. — ^Where 
an  officer  of  the  Medical  Corps  of  the  Navy 
requests  to  have  quarters  assigned  him  at  his 
station,  but  there  are  no  quarters  that  can  be 
assigned,  and  he  occupies  a  room  in  the  Marine 
Barracks  as  a  guest,  with  the  understanding 
that  he  will  vacate  it  whenever  required  to  do 
so,  he  can  not  recover  commutation  for  quar- 
ters. Commutation  is  a  form  of  reimbursement; 
where  there  was  no  expense  for  quarters,  as  in 
this  case  (the  occupied  quarters  being  a  part  of 
the  naval  establishment  of  the  United  States), 
there  can  be  no  reimbursement  in  fact  and 
therefore  none  allowed  by  law.  If  the  officer 
had  occupied  quarters  not  belonging  to  the 
United  States  and  was  otherwise  entitled  to 
quarters,  the  fact  that  he  was  not  charged  for 
tne  use  of  the  quarters  would  not  be  material 


698 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1487. 


and  would  not  affect  the  right  and  obligation 
of  the  parties,  but  when  the  quarters  occupied 
belonged  to  the  United  States,  there  is  no  legal 
right  of  recovery.  (Odell  v.  U.  S.,  38  Ct.  Cls., 
194.) 

Officer  assigned  less  than  full  number 
of  roonis  to  which  entitled. — An  officer  on 
duty  at  a  station  where  public  quarters  are 
available  is  not  entitled  to  commutation  of 
quarters,  even  though  he  can  not  be  assigned 
the  full  number  of  rooms  to  which  his  rank  en- 
titles him.  (Comp.  Dec,  Oct.  31,  1913,  153 
S.  &  A.  Memo.,  2854.  See  also  file  9886-16, 
Oct.  15,  1908,  20032-4,  Nov.  27,  1908,  and 
28479-141,  Nov.  15,  1915.) 

A  naval  officer  whose  rank  entitles  him  to 
four  rooms,  but  who  had  but  one  room  hir- 
nished  him  for  quarters,  because  there  were  no 
other  public  quarters  available  at  his  station, 
can  not  be  allowed  commutation  for  quarters. 
The  theory  of  commutation  is  compensation  or 
reimbursement  for  something  paid  out.  In 
this  case  the  officer  was  relieved  from  ex- 
pense and  did  not  become  entitled  to  recover 
the  value  of  quarters  not  paid  for  by  him.  (Ir- 
win V.  U.  S.,  38  Ct.  Cls.,  87,  103.) 

The  quarters  fitted  up  at  the  aeronautic 
station,  Pensacola,  Fla.,  for  officers  attending 
the  flying  school  were  intended  to  accommo- 
date one  officer  in  each  room.  It  is  desirable 
to  quarter  as  many  officers  at  the  station  as 
possible  in  order  that  they  may  be  available 
at  all  times  for  flying.  The  hours  of  flying  mist 
conform  to  the  weather  conditions,  especially 
for  student  a\'iator8.  There  are  not  sufficient 
quarters  available  to  assign  each  officer  at  the 
station  the  number  of  rooms  authorized  for 
his  rank.  Under  these  circumstances,  an 
officer  whose  rank  entitles  him  to  four  rooms, 
and  who  has  been  assigned  one  room  at  said 
station,  is  not  entitled  to  the  assignment  of 
three  additional  rooms  or  to  commutation  of 
quarters  if  the  Secretary  of  the  Navy  decides 
that  he  should  be  quartered  at  the  station  and 
that  there  are  quarters  available  for  him  at 
said  station.     (File  28479-141,  Nov.  15,  1915.) 

In  the  assignment  of  quarters  to  officers  at  the 
Naval  Academy  the  determining  factor  should 
be  whether  it  is  necessary  for  the  proper  per- 
formance of  the  officer's  duties  that  he  reside 
inside  the  academy  limits.  If  in  the  judg- 
ment of  the  superintendent  this  is  necessary 
the  officer  should  be  assigned  such  quarters 
as  may  be  available;  if  not  necessary  and 
there  are  no  quarters  available  commensurate 
with  his  rank,  the  officer  may  be  permitted  to 
reside  outside  the  grounds  and  he  will  be 
entitled  to  commutation  of  quarters  upon  cer- 
tificate of  the  superintendent  that  there  were 
no  quarters  available  during  the  rjeriod.  (File 
9886-18,  Dec.  11,  1908.) 

Officer  attached  to  vessel  of  the  Navy. — 
An  officer  sening  on  board  a  vessel  of  the  Navy, 
under  orders,  can  not  acquire  any  right  to 
commutation  of  quarters  for  the  reason  that 
Congress  has  not  attached  any  such  allowance 
to  his  office  for  service  at  sea  on  board  of  a  ves- 
sel. (Comp.  Dec,  Aug.  28,  1917,  198  S.  &  A. 
Memo.,  4357.) 

When  an  officer  of  the  Navy  is  on  receiving- 
ship  duty,  and  the  ship  acting  as  recei\'ing  ship 
is  detached  from  such  duty,   no  other  ship 


being  designated  in  its  place,  if  the  situation 
is  to  be  permanent  in  character,  the  officer  is 
in  a  shore-duty  status  and  becomes  entitled, 
in  the  event  that  quarters  in  kind  are  not 
furnished  him,  to  comnmtation  of  quarters; 
but  if  such  situation  is  only  temporary,  the 
officer  remains  in  a  sea-duty  status  and  is  not 
entitled  to  commutation  of  quarters  but  must 
provide  his  own  quarters.  (Comp.  Dec, 
July  3,  1917,  197  S.  &  A.  Memo.,  4300.) 

A  retired  officer  was  ordered  to  active  duty 
in  time  of  war  as  commanding  officer  of  a  re- 
ceiving ship.  Under  the  regulations  then  in 
force  governing  the  receiving-ship  system, 
ships  in  commission  were  designated  as  receiv- 
ing ships,  retaining  their  own  commanding 
officer  as  such  ships  in  commission  and  in  ad- 
dition thereto  having  a  commanding  officer  in 
their  added  fimction  as  receiving  ships.  ^  There 
was  a  ship  in  commission  actually  designated 
as  receiving  ship  at  the  station  in  question. 
The  retired  officer  did  not  actually  assume 
command  of  the  receiving  ship  as  such,  but 
served  on  shore  in  a  building  used  for  such 
purpose,  where  he  performed  the  duties^  of 
commanding  officer  of  a  nominal  receiving 
ship.  His  orders  to  duty  as  cornmanding 
officer  of  a  recei\'ing  ship  assigned  him  to  sea 
duty  and  did  not  entitle  him  to  commutation 
of  quarters,  even  though  said  orders  referred  to 
this  duty  as  "shore  duty."  However,  upon 
the  detachment  of  the  ship  which  had  been 
designated  as  receiving  ship,  and  during  the 
period  thereafter  while  there  was  no  ship 
actually  designated  as  receiving  ship  at  said 
station,  the  officer  may  be  allowed  commuta- 
tion of  quarters,  in  view  of  the  emergency  con- 
ditions which  existed,  although  it  would  seem 
that  his  orders  to  duty  as  commanding  officer 
of  the  receiving  ship  were  in  effect  canceled 
by  the  detachment  of  the  ship,  and  new  orders 
not  having  thereafter  been  issued  to  him,  the 
duties  he  thereafter  performed  as  commanding 
officer  of  a  nominal  receiving  ship  were  not  in 
obedience  to  any  orders.  (Comp.  Dec,  Aug. 
28,  1917,  198  S.  &  A.  Memo.,  4357.) 

Service  of  naval  officers  on  board  vessels  is 
"duty  in  the  field"  within  the  meaning  of  the 
act  of  April  16,  1918  (40  Stat.,  530,  quoted 
above),  relating  to  commutation  of  quarters 
for  officers  of  the  Army,  which  act  applies  to 
the  Navy  by  virtue  of  section  13  of  the  Navy 
personnel  act  of  March  3,  1899  (30  Stat.,  1007), 
and  the  act  of  August  29,  1916  (39  Stat.,  581). 
Under  these  laws  all  commissioned  officers  of 
the  Navy  are  now  entitled  to  the  same  allow- 
ances, except  forage,  as  provided  by  law  for 
commissioned  officers  of  the  Army,  under 
corresponding  conditions.  (File  26255-471:  2, 
Apr.  13,  1918,  citing  12  Comp.  Dec,  291,  293, 
and  Ex  parte  Gerlach,  247  Fed.  Rep.,  616.) 

Commissioned  officers  of  the  Navy  on  the 
active  list  on  duty  on  vessels  of  the  Navy  are 
"on  duty  in  the  field"  and  possess  the  same 
right  to  commutation  of  quarters  under  the  act 
of  April  16,  1918  (above  quoted),  as  is  conferred 
by  said  act  upon  officers  of  the  Army.  (24 
Comp.  Dec,  610.) 

For  other  cases,  see  below,  "Officer  tempo- 
rarily absent  from  station,"  and  see  above, 
"Hire  of  quarters." 


54641°— 22- 


-45 


699 


Sec.  1487. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


Ofllcer  awaiting  orders. — An  officer  of  the 
Army  "unassigned"  and  "awaiting  orders" 
at  headquarters,  who  makes  no  application  for 
fuel  ana  quarters,  and  who  does  not  show  at 
the  trial  of  his  claim  in  court  that  no  quarters 
were  to  be  had  at  headquarters,  is  not  entitled 
to  commutation  therefor;  but  upon  sho%ving 
that  there  were  no  quarters  at  headquarters,  he 
is  entitled  to  commutation.  (Crosby  v.  U.  S., 
13Ct.  Cls.,  110.) 

An  officer  of  the  Army  who  pursuant  to  orders 
reporte<l  to  the  headquarters  of  a  department, 
there  to  "  a'n  ait  further  orders, ' '  and  wMle  await- 
ing orders  was  not  furnished  fuel  or  quarters, 
is  entitled  to  recover  their  commuted  value. 
It  is  immaterial  that  he  performed  no  active 
duty  while  thus  awaiting  orders.  lie  was  sub- 
ject to  assignment  to  such  duty,  and  the  respon- 
sibility for  his  nonemployment  rested  with  his 
superior  officer.  Where  an  officer  is  directed 
to  proceed  toa  place  specified,  there  to  await 
orders,  it  is  his  duty  to  go  to  that  place  and  to 
remain  there;  he  can  not  go  elsewhere;  he  can 
not  return  until  ordered ;  he  is  as  much  under 
orders  and  can  no  more  question  the  duty  of 
obedience  than  if  ordered  to  an  aml^ush  to  lie 
in  wait  for  the  enemy.  (U.  S.  v.  Lippitt,  100 
U.  S.,  663,  affirming  Lippitt  v.  U.  S.,  14  Ct. 
Cls.,  148,  quoting  U.  S.  v.  Williamson,  23  Wall., 
411,  and  distinguishing  U.  S.  v.  Phisterer,  94 
U.S.,  219.) 

Officer  at  home  awaiting  orders. — ^An 
officer  of  the  Army  at  his  own  home  awaiting 
orders,  ha^■ing  been  ordered  there  at  his  own 
request  and  ha\dng  no  public  duty  whatever  to 
perform,  is  not  entitled  to  commutation  of 
quarters.  Quarters  are  expected  to  be  fur- 
nished by  the  Government  to  its  officers;  when 
it  can  not  thus  furnish,  it  allows  them  to  be 
obtained  otherwise,  and  pays  a  money  compen- 
sation therefor,  called  commutation.  This  is 
upon  the  assumption,  first,  that  the  officers  are 
actually  engaged  in  the  pul)lic  service;  and, 
second,  that  such  quarters  are  necessary  to  the 
discharge  of  their  duty.  It  is  upon  the  latter 
idea  tliat  commutation  for  fuel  and  quarters  is 
not  allowed  to  officers  when  in  the  field.  The 
duty  there  is  public  not  only,  but  of  the  most 
necessary  character;  still,  apartments,  kitchen, 
and  offices  are  not  there  necessary,  and  can  not 
be  commuted  for.  The  officer's  home  is  not  a 
station  in  the  sense  that  he  is  entitled  to  public 
quarters  or  to  a  compensation  in  the  form  of 
commutation  therefor.  (U.  S.  v.  Phisterer, 
94  U.  S.,  219.) 

Officer  at  home  performing  duty. — A 
payma.«ter  in  the  Na\-y  detached  from  his 
vessel  and  ordered,  "Proceed  to  your  home  in 
the  United  States,  settle  your  accounts,  and 
await  orders, "  is  on  duty  during  the  period 
prescribed  by  the  regulations  and  orders  of  the 
department  for  the  making  out  of  his  accounts, 
and  for  that  period  he  is  entitled  to  commuta- 
tion of  quarters,  there  being  no  public  quarters 
at  his  home  which  can  be  furnished  to  him. 
So  much  of  the  order  as  provides  that  the  offi- 
cer shall  "await  orders"  at  his  home  does  not 
take  effect  until  the  period  allowed  for  settling 
his  accounts  has  expired.  (CoUioun  v.  U.  S., 
41  Ct.  Cls.,  31.) 

A  retired  officer  ordered  to  active  duty  in 
connection  with  the  Naval  War  College,  whose 


orders  did  not  specify  where  the  shore  duty  on 
which  he  was  to  be  employed  should  be  per- 
formed, and  who  selected  his  home  as  his 
station  for  the  performance  of  such  duty,  is 
entitled  to  commutation  of  quarters  notwith- 
standing that  he  reported  at  the  War  College 
by  letter  instead  of  in  person.  The  assignment 
of  an  officer  to  duty  at  any  place  makes  that 
place  his  post  or  station  within  the  meaning  of 
those  terms  as  used  in  the  law  granting  commu- 
tation of  quarters.  Where  the  choice  is  left  to 
the  officer,  the  selection  of  his  home  for  the 
performance  of  the  duty  assigned  him  makes 
it  a  post  or  station;  the  fact  that  he  reported  by 
letter,  as  dkected,  does  not  defeat  his  right  to 
commutation  of  quarters.  (Comp.  Dec,  Apr. 
14,  1910,  110  S.  A.  Memo.,  1379.) 

Officer  undergoing  trial  by  court-mar- 
tial or  by  civil  authorities. — ^An  officer  of  the 
Army  ordered  to  report  for  tiial  by  court-martial 
at  a  place  where  quarters  can  not  be  assigned 
to  him  is  entitled  to  commutation  for  quarters 
during  his  trial  and  whUe  awaiting  orders  after 
the  trial.     The  mere  fact  that  an  officer  is  under 
charges  does  not  deprive  him  of  his  pay  and 
allowances.     Such  forfeiture  can  only  be  im- 
posed by  the  sentence  of  a  court-martial.     It  is 
conceded  that  the  officer  was  ordered  before  the 
court-martial  for  trial;  that  his  status  was  that 
of  an  officer  under  suspension  from  duty  dm'ing 
the  existence  of  such  trial.     He  was  under 
charges  during  the  pendency  of  his  trial,  and 
the  result  of  the  trial  alone  could  determine 
his  status  as  a  volunteer  Army  officer.     He 
could  not  absent  himself  from  the  place  of  trial 
without  disobeying  the  orders  of  his  superiors. 
He  was  not  absent  from  his  post  of  duty  with- 
out leave.     On  the  contrary,  he  was  present  at 
the  coin"t-martial  in  obedience  to  orders,  await- 
ing the  result  of  the  trial  and  such  orders  as 
would  necessaiily  follow.     Aside  from  this,  it 
has  been  held  in  a  number  of  cases  that  the 
mere  fact  that  an  officer  or  soldier  is  under 
charges  does  not  deprive  him  of  his  pay  and 
allowances,  and  that  such  forfeiture  can  only 
be  imposed  by  the  sentence  of  a  lawfiU  court- 
martial  (citing  Smith  v.  U.  S.,  2  Ct.  Cls.,  206; 
Winters  v.  U.  S.,  3  Ct.  Cls.,  136;  Collins  v.  U.  S., 
15  Ct.  Cls.,  22;  Sullivan  v.  U.  S.,  32  Ct.  Cls., 
402;  and  Dodge  v.  U.  S.,  33  Ct.  Cls.,  35).     In 
Sullivan's  case,  supra,  it  was  held  that,  "when 
an  officer  is  suspended  and  ordered  in  arrest, 
it  is  as  much  his  duty  to  obey  as  it  is  to  perform 
or  execute  any  other  order  requiring  affirmative 
action.     He  ceases  by  order  of  his  superior 
officer  to  perform  the  active  duties  incident  to 
his  office.     He  is  not  to  do  anything  in  the  dis- 
charge of  his  official  obligations  in  the  form  of 
military  duty  until  relieved  of  the  disability 
incident  to  his  arrest.     He  is  'waiting  orders' 
emphatically.     The  official   duties  pertaining 
to  his  position  have  been  transferred  to  some 
other  officer,  and  so  far  as  the  right  to  perform 
the  duties  of  his  office  goes,  he  is  functus  officio." 
This  case  differs  from  that  of  Swaim  v.  United 
States  (165  U.  S.,  553),  in  which  it  was  held 
that  when  an  Army  officer  was  suspended  from 
rank  by  sentence  of  a  court-martial  he  was  not 
entitled    to    emoluments    or    allowances;  and 
differs  also  from  the  case  of  Phisterer  v.  United 
States  (94  U.  S.,  219),  in  which  it  was  held  that 
an  Army  officer  ordered  by  proper  authority 


roo 


The  Navy. 


Pt.2.  REVISED  STATUTE^. 


Sec.  1487. 


from  a  military  post  where  he  was  rendering 
service  to  proceed  to 'his  home  and  await  orders 
was  not  entitled  to  commutation  for  quarters. 
(Wales  V.  U.  S.,  43  Ct.  Cls.,  225,  holding  that 
the  court-martial  in  the  case  under  considera- 
tion was  illegally  constituted  and  its  sentence 
void.) 

An  officer  of  the  Army  for  some  months  is 
in  the  custody  of  the  civil  authorities  in  Manila 
awaiting  trial,  on  bail  and  not  actually  re- 
strained of  his  liberty;  subsequently  he  is 
under  military  arrest  and  confined  to  the  limits 
of  the  city  of  Manila;  during  all  this  period  he 
is  under  orders  assigning  him  to  temporary 
duty  in  Manila  and  resides  in  a  private  house, 
not  having  been  furnished  with  quarters. 
Until  his  arrest  he  receives  pay  and  commuta- 
tion of  quarters.  He  is  tried  and  convicted  in 
the  civil  comts  at  Manila,  but  the  judgment 
is  reversed  by  the  Supreme  Coini;  of  the  United 
States.  He  is  subsequently  tried,  con\'icted, 
and  dismissed  from  the  Army  by  a  military 
court-martial,  and  is  thereafter  reinstated  anci 
retired.  Held,  that  it  requires  the  decision 
of  a  court-martial  to  deprive  an  Army  officer 
of  his  pay  and  emolmnents,  and  that  where  an 
officer  is  awaiting  trial  before  either  a  civil  or 
military  triljunal,  under  waiting  orders  issued 
by  authority  of  the  War  Department,  he  is 
entitled  to  the  emolimients  of  his  office,  in- 
cluding commutation  for  quarters.  Further 
held  that  although  this  officer  was  first  tried  by 
a  civil  tribunal  and  afterward  tried  by  a  general 
court-martial,  he  was  under  waiting  orders 
issued  by  authority  of  the  War  Department 
which  covered  the  time  involved  in  both  trials, 
and  is  entitled  to  all  the  emoluments  allowed 
by  the  Army  Regulations,  which  include  com- 
mutation for  quarters.  (Carrington  v.  U.  S., 
46  Ct.  Cls.,  279.) 

Officer  detailed  as  professor  in  a  col- 
lege.— WTiere  an  officer  of  the  Army  is  detailed 
by  peremptorj^  order  to  act  as  professor  in  a 
college  he  is  entitled  to  be  furnished  fuel  and 
quarters  by  the  Government  or  commutation 
therefor.  The  order  detailing  him  is  one  which 
he  is  bound  to  obey,  and  his  right  to  commuta- 
tion can  not  be  affected  by  the  fact  that  his 
detail  was  procured  by  the  president  of  the 
college  with  his  cooperation.  In  such  a  case, 
if  there  be  no  quarters  at  the  place  it  will  be  a 
station  without  troops  within  the  meaning  of 
Army  Regulations,  and  he  need  not  make 
requisition  for  quarters.  (Long  v.  U.  S.,  8  Ct. 
Cls.,  398;     see  also  note  to  sec.  1225,  R.  S.) 

Civilian  professors  at  Naval  Academy. — 
'The  act  of  August  29,  1916  (39  Stat.,  607),  pro- 
\ddes  "  that  the  Secretary'  of  the  Navy  is  author- 
ized to  employ  at  the  Naval  Academy  such 
number  of  professors  and  instructors,  including 
one  professor  as  librarian,  as,  in  his  opinion, 
may  be  necessary  for  the  proper  instruction  of 
the  midshipmen;  and  that  professors  and  in- 
structors so  employed  shall  receive  such  com- 
pensation for  their  services  as  may  be  pre- 
scribed by  the  Secretary  of  the  Navy."  This 
law  clearly  leaves  it  entirely  to  the  discretion 
of  the  Secretary  of  the  Na\y  to  prescribe  the 
"compensation"  of  civilian  professors  and  in- 
structors, and  the  Secretary,  in  exercising  such 
discretion,  may,  in  accordance  with  the  author- 
ities,  prescribe  that  such  civilians  shall  be 


allowed  public  quarters,  heat  and  light,  or 
commutation  thereof.  (File  11168-4,  Feb.  1, 
1917,  citing  cases.  See  below,  under  "Whether 
commutation  of  quarters  is  salarj^,  compensa- 
tion, or  pay  proper.)" 

Officer  temporarily  absent  from  sta- 
tion.— An  officer  of  the  Navy  on  temporary 
duty  in  the  United  States  away  from  his  station 
lieyond  seas,  if  entitled  to  commutation  of 
quarters  at  such  station  continued  to  be  so 
entitled  during  the  period  of  his  temporary 
absence  in  the  United  States;  he  is  not  en- 
titled, however,  to  commutation  of  heat  and 
light  during  such  absence,  unless  his  quarters 
at  his  permanent  station  are  occupied  by  his 
family  or  persons  dependent  upon  him  for  sup- 
port. (Comp.  Dec,  Jan.  17,  1916,  179  S.  and 
A.  Memo.,  3870.) 

An  ofiicer  of  the  Pay  Corps  in  receipt  of  com- 
mutation of  quarters  at  his  permanent  station 
at  Washington,  D.  C,  as  general  inspector  of 
the  Pay  Corps,  may  continue  to  receive  such 
commutation  while  temporarily  absent  under 
orders  requiring  him  to  proceed  to  Yokohama, 
Japan,  and  to  vaiious  other  points  outside  the 
continental  limits  of  the  United  States,  includ- 
ing points  Ijdng  within  the  island  possessions 
of  the  United  States,  for  the  purpose  of  inspect- 
ing the  accounts  of  the  pay  officers  stationed  at 
the  points  designated,  including  the  accounts 
of  paymasters  of  vessels  with  which  he  might 
fall  in  during  his  entire  trip,  and  upon  comple- 
tion of  said  duty  to  return  to  his  former  station 
by  way  of  the  Suez  Canal.  (Comp.  Dec, 
Sept.  26,  1901,  to  Paymaster  Livingston  Hunt; 
compare  21  Comp.  Dec,  604.) 

The  Na\T  Regulations,  1913  (art.  R-4511 
(5)),  provide  that  "the  quarters  to  which  an 
officer  is  entitled  when  on  duty  may  be  con- 
tinued in  kind,  at  his  proper  station,  during 
the  period  for  which  the  law  permits  him  to  be 
absent  without  reduction  of  pay  and  allow- 
ances." This  regulation  is  based  upon  the 
act  of  February  27,  1893  (27  Stat.,  480),  which 
provides  "that  hereafter  officers  temporarily 
absent  on  duty  in  the  field  shall  not  lose  their 
right  to  quarters  or  commutation  thereof  at 
their  permanent  stations  while  so  temporarily 
absent."  In  the  Comptroller's  decision  of 
August  3,  1907  (see  125  S.  and  A.  Memo.,  1850), 
it  was  held  that  "this  statute  authorizes  the 
payment  of  commutation  of  quarters  to  naval 
officers,  who  are  entitled  to  that  allowance 
during  the  time  they  are  temporarily  absent  on 
duty  from  their  permanent  stations,  provided 
they  were  receiving  such  commutation  at  the 
permanent  stations,  or,  if  they  were  occupying 
public  quarters,  it  gives  them  the  right  to  retain 
their  quarters  during  such  absence."  In  the 
Comptroller's  decision  of  July  26,  1911  (125  S. 
and  A.  Memo.,  1854),  it  was  said:  "The  act  of 
February  27,  1893,  supra,  contemplates  the 
temporary  absence  of  an  officer  from  his  per- 
manent station,  and  a  temporaiy  absence  pre- 
supposes the  intention  to  return  to  the  perma- 
nent station  and  resume  his  duties  there.  If 
the  absence  of  Lieut.  Commander  Trench  from 
the  academy  was  only  temporary,  under  the 
act  of  February  27,  1893,  he  did"  not  lose  his 
right  to  retain' his  quarters  there  during  such 
absence."  (File  26254-2134,  Dec.  19,  1916; 
see  also  file  26254-2120:1,  Nov.  15,  1916.) 


701 


Sec.  1488. 


Pt.2.  RE  VISED  STAT  UTES. 


The  Navy. 


Agreement  of  oflficers  for  exchange  of 
quarters  a"nd  commutation. — An  agreement 
whereby  an  ollicer  who  has  been  regularly 
assigned  to  public  quarters  undertakes  to 
permit  another  oflieer  to  occupy  such  quarters 
and  to  exchange  his  right  thereto  for  the  other 
officer's  right  to  commutation  of  quarters,  is  not 
authorized  and  in  ?uch  case  the  officer  who  was 
assigned  to  public  quarters  but  did  not  occupy 
thorn  is  not  entitled  to  any  commutation 
whatever  in  lieu  thereof.  (22  Oomp.  Dec,  707; 
see  also  file  2(J254-2052,  July  7  and  Aug.  7,  J  916.) 

Services  of  laborer  in  caring  for  quax- 
ters.^Service  performed  by  a  laborer  at  a 
navy  yard,  under  the  direction  of  the  general 
storekeeper,  in  and  about  the  fiuarters  of  that 
officer  is  not  authorized  by  law,  and  the  general 
storekeeper  is  liable  to  the  United  States  for 
the  value  of  services  thus  unlawfully  converted 
to  his  personal  use.     (12  Comp.  Dec,  697.) 

"Duty  without  troops"  defined. — The 
Army  regulation  concerning  commutation  of 
quarters  for  officers  "on  duty  wathout  troops," 
extends  to  officers  on  detached  service,  such  as 
recruiting  ser\ace,  although  there  may  be 
enlisted  men  on  duty,  such  as  guards,  orderlies, 
clerks,  and  messengers.  Such  cases  are  dis- 
tinguishable from  those  of  officers  of  the  line 
serving  in  the  field  or  with  their  commands  at 
a  fort  or  in  barracks.  (Anderson  v.  U.  S.,  39 
Ct.  Cls.,  316.) 

Prior  to  the  act  of  March  4,  1915,  commuta- 
tion of  quarters  was  only  allowable  where  an 
officer  was  detailed  for  duty  without  troops. 
(Moses  V.  U.  S.,  41  Ct.  Cls.  27,  citing  Himt  v. 
U.  S.,  38  Ct.  Cls.',  704,  and  Anderson  v.  U.  S., 
39  Ct.  Cls.,  316.)  Under  the  act  of  March  4, 
1915,  commissioned  officers  of  the  Navy  are 
now  entitled  to  commutation  of  quarters  "at 
places  where  there  are  no  public  quarters 
available."     (File  28479-141,  Nov.  15,  1915.) 

The  annual  naval  appropriation  acts  make 
provision  for  "hire  of  quarters  for  officers  serving 
with  troops  where  there  are  no  public  quarters 
belonging  to  the  Government,  and  where  there 
are  not  sufficient  quarters  possessed  by  the 
United  States  to  accommodate  them  or  commu- 
tation of  quarters  not  to  exceed  the  amount 
which  an  officer  would  receive  were  he  not 


servang  with  troops."     (See  act  June  4,  1920, 
41  Stat.,  824.) 

Application  for  quarters  not  necessary 
to  allowance  of  commutation. — Commuta- 
tion can  be  allowed  an  officer  Avithout  previous 
demand  by  him  for  fuel  and  quartere  and  reply 
that  they  can  not  be  furnished.  (Whittlesey  v. 
U.  S.,  5  Ct.  Cls.,  99.) 

Where  the  headquarters  of  a  military  depart- 
ment are  in  a  large  city  in  which  there  are  no 
quarters  assignable  to  officers  on  duty,  it  is  not 
necessary  for  an  officer  ordered  there  to  make  a 
demand  that  quarters  be  assigned  to  him.  lie 
will  be  entitled  to  recover  commutation  if  it 
appear  that  there  were  no  quarters  which  might 
have  been  assigned.  (Lippitt  v.  U.  S.,  14  Ct. 
Cls.,  148.  See  also  Crosby  v.  U.  S.,  13  Ct.  Cls., 
110;  Long  v.  U.  S.,  8  Ct.  Cls.,  398.) 

Whether  commutation  of  quarters  is 
salary,  compensation,  or  pay  proper. — 
Commutation  of  quarters  is  part  of  the  "'official 
salary"  of  an  Army  officer  within  the  meaning 
of  those  words  as  used  in  the  act  of  June  28, 
1902  (32  Stat.,  483),  relating  to  employment  of 
Army  officers  under  the  Isthmian  Canal  Com- 
mission.    (12  Comp.  Dec,  343.) 

Under  the  law  providing  that  the  Secretary 
of  the  Navy  may  prescribe  the  ' '  compensation ' ' 
of  civilian  professors  and  instructors  at  the 
Naval  Academy,  he  may  prescribe  that  such 
civilians  shall  be  allowed  public  quarters,  heat 
and  light,  or  commutation  thereof.  (File 
11168-4,  Feb.  1,  1917,  citing  cases.) 

Commutation  is  a  form  of  reimbursement  and 
is  not  part  of  the  compensation  of  an  officer. 
(Odell  V.  U.  S.,  38  Ct.  Cl&,,_194_.) 

The  theory  of  commutation  is  compensation 
or  reimbursement  for  something  paid  out. 
(In^dn  V.  U.  S.,  38  Ct.  Cls.,  87,  103.) 

The  allowances  pro^dded  for  in  General  Order 
No.  75,  Navy  Department,  May  23,  1866, 
namely,  a  sum  to  be  paid  officers  not  provided 
with  quarters  on  shore  stations,  equal  to  one- 
third  of  their  pay,  in  lieu  of  all  allowances 
except  for  mileage  or  traveling  expenses, 
constitute  no  part  of  the  pay  proper  of  officers 
and  were  designed  to  meet  certain  expenses 
they  would  necessarily  incur  in  the  discharge 
of  their  duties.     (U.  S.  v.  Allen,  123  U.  S.,  345.) 


Sec.  1488.  [Military  command.]  The  relative  rank  given  by  the  provisions 
of  this  chapter  to  officers  of  the  Medical,  Pay,  and  Engineer  Coqjs  shall  confer 
no  authority  to  exercise  military  command. — (General  Orders  31  Aug.,  1846, 
and  27  May,  1847.  5  Aug.,  1854,  c.  268,  s.  4,  v.  10,  p.  587.  3  Mar.,  1859,  c. 
76,  s.  2,  V.  11,  p.  407.) 

By  act  of  June  24,  1910  (36  Stat.,  614),  it  was 
provided  that  "line  officers  may  be  de- 
tailed for  duty  under  staff  officers  in  the 
manufacturing  and  repair  departments  of 
the  navy  yards  and  naval  stations,  and  all 
laws  or  parts  of  laws  in  conflict  herewith 
are  hereby  repealed. " 

By  act  of  March  3,  1915  (38  Stat.,  930),  it  was 
provided  that  "hereafter  officers  who  now 
perform  engineering  duty  on  shore 
only  and  officers  of  the  Construction  Corps 
shall  be  eligible  for  any  shore  duty  com- 
patible with  their  rank  and  grade  to  which 
the  Secretary  of  the  Navy  may  assign 
them."     (See  note  to  sec.  1404,  R.  S.)    A 


Amendment  to  this  section  was  made  by  act  of 
March  3,  1899,  section  7  (30  Stat.,  1006), 
which  abolished  "relative"  rank  and  su1)- 
stituted  actual  rank  therefor,  with  the  pro- 
viso that  "officers  whose  rank  is  so  defined 
shall  not  be  entitled,  in  virtue  of  their 
rank  to  command  in  the  line  or  in  other 
staff  corps."  The  same  act,  section  1  (30 
Stat.,  1004),  transferred  the  Engineer 
Corps  to  the  line  of  the  Navy,  and  thereby 
abolished  the  Engineer  Corps  (see  note  to 
sec  1390,  R.  S.). 

By  act  of  July  11,  1919  (41  Stat.,  147),  it  was 
provided  that  "hereafter  the  Pay  Corps 
shall  be  called  the  Supply  Corps." 


702 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1488. 


similar  provision  was  contained  in  the  act 
of  June  30,  1914  (38  Stat.,  394). 
Command  of  vessels.    See  note  to  section  1529. 
Revised  Statutes. 
Command  of  hospital  ships  by  medical 
oflacers.— The  words  "military  command"  in 
section  1488  have  been  supplanted  by  the  later 
act  of  March  3,  1899  ( quoted  above),  which  pro- 
vides that  staff  officers  shall  not  "command  m 
the  line  or  in  other  staff  corps."     The  command 
of  a  hospital  ship  by  a  medical  officer  is  not  a 
••command  in  the  line  or  in  other  staff  corps;" 
it  is  a  command  in  the  medical  officer's  own 
staff  corps,  and  in  their  own  staff  corps  medical 
officers  have  always  had  a  command.     ('27  Op. 
Atty.  Gen.,  571.     Note.— In  practice  officers 
of  the  Supply  Corps  of  the  Navy  were  later 
detailed  on  hospital  ships  under  the  command 
of    medical    officers;    see    for   example    Navy 
Register  of  January  1,    1917,   page  298;  when 
the    Attorney    General's    opinion    cited    was 
rendered,   officers  of  the  line  or  other  staff 
corps  were  not,   under  the  regulations  then 
existing,  to  be  assigned  to  duty  on  hospital 
ships  commanded  by  medical  officers.) 

Prior  to  March  3,  1901,  assignments  to  com- 
mand of  naval  vessels  were  governed  by  section 
1535,  Revised  Statutes,  and  regulations  made 
in    accordance    therewith.    The    position    of 
staff  officers  during  the  same  period  ^vith  regard 
to  military  command  was  restricted  by  the  acts 
of  August  5,  1854  (10  Stat.,  587),  and  March  3, 
1859  (11  Stat.,  407),  now  section  1488,  Revised 
Statutes.     The  act  of  March  3,  1899  (30  Stat., 
1006),  amending  the  words  "the  relative  rank 
of"  in  the  Revised  Statutes  to  read  •'the  rank 
of,"  provided  that  "officers  whose  rank  is  so 
defined  shall  not  be  entitled,  in  virtue  of  their 
rank  to  command  in  the  line  or  in  other  staff 
corps."     By  act  of  March  3,   1901  (31  Stat., 
1133),  Congress  declared  ''that  the  President 
of  the  United  States  be,  and  he  is  hereby, 
authorized  to  estalilish,  and  from  time  to  time 
to  modify,  as  the  needs  of  the  service  may  re- 
quire, a  classification  of  vessels  of  the  Navy,  and 
to  formulate  appropriate  rules  governing  assigii- 
ments  to  command  of  vessels  and  squadrons." 
This  act  is  plainly  intended  to  amend  the 
previous  statutes  on  the  subject  and  is  designed 
to  allow  the  President  to  reclassify  the  vessels 
of  the  Navy  that  had  theretofore  been  fixed  by 
section  1529,  Re\ised  Statutes;  and  to  authorize 
him  to  assign  the  command  of  vessels,  omitting 
all  restrictions.     He  is  by  this  act  given  the 
full  power  contemplated  in  that  proxision  of 
the  Constitution  which  makes  him  commander 
in  chief  of  the  Ai^my  and  Navy.     The  act  of 
March  3,  1901,  is  a  complete  substitute  for  prior 
laws  or  customs.     The  language  of  that  act  is 
clear  and  unambiguous,  and  was  enacted  with 
a  full  knowledge  of  the  conditions  brought  about 
by  prior  laws  and  of  the  necessity  of  a  new  and 
elastic  system  by  which  the  President  could 
from  time  to  time  make  such  regulationsas  the 
necessities  of  the  changing  conditions  in  the 
ser^'ice  should  require.     (27  Op.  Atty.  Gen., 
571.) 

A  joint  board  of  Army  and  Navy  medical 
officers  convened  by  the  President,  under 
orders  of  January  11,  19n(),  recommended  the 
construction  of  hospital  ships  for  both  the  Army 


and  the  Navy,  the  personnel  of  which  should 
consist  of  one  medical  officer  in  command  of  the 
ship,  four  medical  officers  to  attend  the  patients, 
and  a  number  of  enlisted  men  of  the  Hospital 
Corps,  it  being  "recommended  that  the  crews 
of  hospital  ships  be  composed  entirely  of  civil- 
ians."    This  recommendation   was   approved 
by  the  Secretary  of  War  and  by  the  Surgeon 
General  of  the  Navy,  and  disapproved  in  toto 
by  the  Chief  of  the  Bureau  of  Na\agation.  in 
part  for  the  reason  that  "it  would  be  impracti- 
cable, dangerous,  and  inimical  to  the  service, 
and  contrary  to  laws,  regulations,  and  customs 
of  long  standing."  to  have  medical  officers  in 
command  of  such  ships.    The  Surgeon  General 
of  the  Navy  again  approved  the  recommenda- 
tion of  the  board  on  September  24,  1906,  stating 
tliat— '  •  The  bureau  concurs  in  the  recommenda- 
tion of  the  joint  board  that  a  medical  officer 
should  be  placed  in  command  of  a  hospital 
ship,  but  does  not  contemplate  nor  consider  it 
advisable  that  such  command  should  give  him 
control  of  her  navigation    *    *    *.    The  med- 
ical officer  in  command  is  to  receive  all  orders 
from  the  commander  in  chief  or  from  the  depart- 
ment and  to  transmit  them  to  the  captain  of  the 
ship.     His  command  should  be  absolute,  the 
captain  of  the  sliip  taking  his  directions  from  the 
senior  medical  officer.     The  captain  should  not 
be  a  naval  officer,  but  should  belong  to  the 
merchant  marine,  and  should  have  entire  con- 
trol of  the  navigation  of  the  ship  and  of  the 
ci-v-ilian  c'rew  and  regulate  discipline  and  mat- 
ters pertaining  to  them.     The  discipline  of  the 
medical  branch  should  be  in  the  hands  of  the 
medical  officer  in  command    *    *    *."     The 
Bureau  of  Navigation  on  September  27,  1906, 
declined  to  add  anything  to  its  previous  state- 
ment on  the  subject.    Thereupon  the  Secretary 
of  the  Navy  on  December  12,  1906,  made  the 
following  order:  "*    *    *    Second.  The  depart- 
ment holds  that  such  a  ship,  when  in  commis- 
sion, should  be  treated  as  a  floating  hospital, 
and  as  such  placed  under  the  command  of  a 
medical  officer,  her  navigation  being  controlled 
by  a  competent  sailing  master.     In  war  time, 
the  entire  crew  should  be,  so  far  as  possible, 
specially  enlisted  from  civilians,  as  men  of  the 
Hospital  Corps,  and  for  such  time  only  as  their 
services  vnll  probably  be  needed.     In  time  of 
peace,  the  crew,  except  such  as  are  engaged  in 
hospital  duties,  could  be  organized  substan- 
tially as  is  that  of  a  naval  auxiliary,  but  subject 
to  the  pro\dsion  above  set  forth  as  to  the  com- 
mand."    The  President  on  January  4,   1908, 
approved  the  Secretary's  decision  of  December 
12,   1906,  and  orders  issued  thereunder,  and 
ordered  as  to  the  future:  "The  hospital  ships  of 
the  Navy  will  hereafter,  unless  otherwise  di- 
rected by  Congress,  be  placed  under  the  control 
and  command  of  medical  officers  of  the  Navy, 
their  navigation  being  exclusively  controlled 
by  a  competent  sailing  master  ha\ing  the  com- 
plete responsibility  for  everything  connected 
vnth  the  na\'igation   of  the  ship    *    *    *• 
Naval    regulations    were    made,    issued,    and 
approved  by  the  President,  and  published  for 
the  government  of  the  Naw-  as  follows  (art.  37, 
par.  2,  Navy  Regs.,  1909):  "A  hospital  ship  may 
be  commanded %y  a  naval  medical  officer  not 
below  the  grade  of  surgeon."     The  law  pro- 
vides that  such  regulations,  when  so  approved. 


703 


Sec.  1491. 


Pi.  2.  REVISED  STATUTES. 


The  Navy. 


shall  be  the  regulations  of  the  Navy  (sec.  1547, 
11,  S.),  and  they  shall  haNe  the  force  of  law 
when  not  inconsistent  therewith  (21  Op.  Atty. 
Gen.,  40;  (Initiot  v.  U.  S.,  4  How.,  80).  Held, 
that  the  orders  i)ro.ceding  this  retrulation  and  the 
regulation  itself  were  issued  and  adopted  in 
accordance  with  law,  and  under  this  authority 
the  Secretary  of  the  Navy  may  now  assign  a 
medical  ofiicer.  not  below  the  grade  of  surgeon, 


to  the  command  of  a  naval  hospital  sliip.  (27 
Op.  Atty.  Gen.,  571.) 

Construction  officer  can  not  be  assigned 
to  purely  military  duties. — See  note  to 
section  1404,  Revised  Statutes. 

For  other  cases,  as  to  command  on  shore 
by  engineer  officers  and  construction  officers, 
see  notes  to  sections  1390  and  1404,  Revised 
Statutes. 


Sec.  1489.  [Processions,  boards,  &c.]  In  processions  on  shore,  or  courts- 
martial,  summary  courts,  courts  of  inquiry,  boards  of  survey,  and  all  other 
boards,  line  and  staff  officers  shall  take  precedence  according  to  rank. —  (3  Mar., 


1871,  c.  117,  s.  12,  V.  16,  p.  537.) 

See  notes  to  sections  1467,  1485,  and  1486, 
Revised  Statutes. 

The  precedence  of  line  officers,  active  or 
retired,  ser\dng  as  members  of  courts-martial, 
is  determined,  first,  by  their  rank,  and,  second, 
by  their  respective  dates  of  commission,  except 
in  cases  where  they  have  gained  or  lost  num- 
bers, in  which  event  thev  gain  or  lose  seniority 
accordingly.     (File  28025-495:1,  May  2,  1917.) 

Precedence  of  line  and  stafif  officers  on 
courts-martial. — Prior  to  the  act  of  August  29, 
1916,  noted  under  section  1485,  Revised  Stat- 
utes, it  was  decided  that  a  rear  admiral  of  the 
line  of  the  Navy,  serving  as  member  of  a  general 
court-martial,  preceded  a  rear  admiral  of  the 
Pay  Corps  (now  Supply  Corps)  of  the  Navy, 

Sec.  1490.  [Ensigns  as  steerage  officers.]  Ensigns  shall  be  steerage  officers, 
unless  assigned  to  duty  as  watch  and  division  officers. —  (15  July,  1870,  c.  295, 
s.  10,  V.  16,  p.  334.) 


serving  on  the  same  court-martial,  notmth- 
standing  that  the  latter' s  date  of  commission 
was  earlier  than  that  of  the  line  rear  admiral,  be- 
cause of  the  fact  that  the  rear  admiral  of  the  line 
had  greater  length  of  service  than  the  rear 
admiral  of  the  staff,  even  crediting  the  latter 
with  the  constructive  service  of  six  years  pro- 
vided for  by  section  1486,  Revised  Statutes,  and 
that  length  of  service  governs,  and  not  date  of 
commission,  in  fixing  the  precedence  of  these 
officers.  (File  28025-385:5,  Oct.  30,  1915,  re 
precedence  of  Rear  Admiral  Bradley  A.  Fiske 
and  Pay  Director  T.  J.  Cowie.  See  notes  to 
sections  1485  and  1486,  Revised  Statutes,  for 
later  cases.) 


See  note  to  section  1435,  Revised  Statutes. 

"Steerage  officer. — An  officer  living  or 
messing  in  the  steerage.  Steerage  officers  in 
the  U.  S.  Navy  are  clerks,  midshipmen,  cadet- 
midshipmen,  mates,  cadet-engineers,  ensigns 
when  not  in  charge  of  a  watch  and  division, 
and  all  officers  ranking  with  ensign."  (Ham- 
ersly '  s  Naval  Ency . ,  1 884 .  Note  .  — The  grades 
of  midshipmen  and  cadet-engineers  have  been 
abolished,  and  the  title  of  "  cadet- midship- 
men" has  been  changed  to  "midshipmen.") 


"Junior  officers  of  the  line  are  those  below 
the  rank  of  lieutenant,  junior  grade,  not  as- 
signed permanently  to  duty  as  watch  and 
division  officers."  (Navy  Regs.,  1913,  Art. 
R  2701(1)). 

Wardroom  officers. — "All  commissioned 
officers  not  in  command,  above  the  rank  of 
ensign,  shall  be  wardroom  officers.  Ensigns 
assigned  to  duty  as  watch  and  division  officers, 
either  on  deck  or  in  the  engineer  department, 
shall  also  be  wardroom  officers."  (Art.  I  803, 
Naval  Instructions,  1913.) 

Sec.  1491.  [Warrant  officers.]  The  President  may,  if  he  shall  deem  it  con- 
ducive to  the  interests  of  the  service,  give  assimilated  rank  to  boatswains, 
gunners,  carpenters,  and  sailmakers,  as  follows:  After  five  years'  service,  to 
rank  with  ensigns,  and  after  ten  years'  service  to  rank  with  masters, —  (2  July, 
1864,  c.  219,  s.  1,  V.  13,  p.  373.) 


By  ac-t  of  March  3,  1899,  section  12  (30  Stat., 
1007),  boatswains,  gunners,  carpenters,  and 
sailmakers  were,  after  10  years  from  date 
of  warrant,  to  be  commissioned  as  chief 
boatswains,  chief  gunners,  chief  carpen- 
ters, and  chief  sailmakers,  to  rank  with 
but  after  ensign.  This  provision  was 
amended  by  act  of  April  27,  1904  (33  Stat., 
346),  providing  for  the  promotion  of  the 
officers  mentioned  after  6  years  from  date 
of  warrant,  instead  of  10  vears,  as  thereto- 
fore. By  act  of  August  29,  1916  (39  Stat., 
578),  it  was  provided  that  commissioned 


warrant  officers  on  the  active  list,  with 
creditable  records,  shall,  after  6  years 
from  date  of  commission,  receive  the  pay 
and  allowances  of  a  lieutenant  (junior 
grade),  and  after  12  years  from  date  of  com- 
mission, the  pay  and  allowances  of  a  lieu- 
tenant. Similar  provision  for  pay  of  re- 
tired warrant  officers  and  chief  warrant 
officers  while  employed  on  active  dutv  was 
made  by  act  of  April  10,  1918  (40  Stat., 
516). 
Officers  holding  permanent  warrant  or  perma- 
nent commissioned  warrant  ranks  on  June  4, 


704 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1492 


1920,  and  who  are  transferred  to  permanent 
higher  ranka  in  accordance  vrith  the  act  of 
that  date  shall,  if  they  thereafter  fail  pro- 
fessionally on  examination  for  promotion, 
revert  to  their  permanent  warrant  or  perma- 
nent commissioned  warrant  status.     (Act 
June  4,  1920,  sec.  4,  41  Stat.,  835.) 
See  note  to  section  1405,  Revised  Statutes,  for 
laws  relating  to  appointment  of  warrant 
officers  and  commissioned  waiTant  officers 
to  the  grade  of  ensign,  and  for  laws  creating 
additional  grades  of  warrant  officers,  etc. 
The  President  never  exercised  the  dis- 
cretion placed  in  him  by  the  act  of  July  2, 1864, 


and  section  1491,  Re\ised  Statutes,  in  which 
that  law  is  now  embodied.  (File  17789-21, 
Jan.  30,  1914.) 

Section  1491  has  been  regarded  by  the  Xavy 
Department  as  having  been  repealed  by  the 
act  of  IMarch  3,  1899  (above  quoted),  providing 
for  the  commissioning  of  warrant  officers  to 
rank  with  but  after  ensign,  section  26  of  that 
act  ha\-ing  pro\'ided  "that  all  acts  and  parts  of 
acts,  so  far  as  they  conflict  mth  the  pro\ision3 
of  this  act,  are  hereby  repealed."  (File 
17789-21,  Jan.  30,  1914.) 

Masters. — Now  lieutenants  (junior  grade). 
See  note  to  sec.  1362,  R.  S. 


Sec.  1492.  [Coast  Guard  officers  serving  as  part  of  the  Navy.     Superseded.] 


This  section  provided  as  follows: 

"Sec.  1492.  The  officers  of  the  revenue-cutter 
serAice  when  serving,  in  accordance  with  law, 
as  a  part  of  the  Navy,  shall  be  entitled  to  rela- 
tive rank,  as  follows:  Captains,  with  and  next 
after  lieutenants  commanding  in  the  Navy; 
first  lieutenants,  with  and  next  after  lieutenants 
in  the  Navy;  second  lieutenants,  with  and  next 
after  masters  in  Line  in  the  Navy;  third  lieu- 
tenants, with  and  next  after  ensigns  in  the 
Navv."— (2  Mar.,  1799,  c.  22,  s.  98,  v.  1,  pp. 
699, '700.  16  July,  1862,  c.  183,  ss.  1,  11,  v.  12, 
pp.  583,  585.  4  Feb.,  1863,  c.  20,  s.  4,  v.  12,  p. 
640.) 

It  was  superseded  by  act  of  April  12,  1902, 
section  2  (32  Stat.,  100),  which  provided  that 
the  commissioned  officers  of  the  Revenue- 
Cutter  Service  .shall  rank  as  follows:  ''Cap- 
tains with  majors  in  the  Army  and  lieutenant 
commanders  in  the  Na\^^;  first  lieutenants 
with  captains  in  the  Army  and  lieutenants  in 
the  Navy;  second  lieutenants  with  first  lieu- 
tenants in  the  Army  and  lieutenants  (junior 
grade)  in  the  Na\'3';  tliird  lieutenants  with 
second  lieutenants  in  the  Army  and  ensigns 
in  the  Na\y:  Provided,  That  whenever  forces 
of  the  Na\y  and  Revenue-Cutter  Service  shall 
be  serx-ing  in  cooperation  pursuant  to  law 
(section  twenty-seven  hundred  and  fifty-seven, 
Re\dsed  Statutes),  the  officers  of  the  Revenue- 
Cutter  Service  shall  rank  as  follows:  Captains 
with  and  next  after  lieutenant  commanders  in 
the  Na%y;  first  lieutenants  with  and  next  after 
lieutenants  in  the  Na\'y;  second  lieutenants 
with  and  next  after  lieutenants  (junior  grade) 
in  the  Na^y;  third  lieutenants  with  and  next 
after  ensigns  in  the  Navy." 

Other  changes  were  made  by  act  of 
April  16,  1908  (35  Stat.,  61),  wMch  authorized 
in  the  Revenue-Cutter  Ser\dce  one  captain 
commandant  "with  the  rank  of  a  colonel  in 
the  Army  and  a  captain  in  the  Na\'y",  six 
senior  captains,  "each  with  the  rank  of  lieu- 
tenant colonel  in  the  Army  and  a  commander 
in  the  Na\y",  one  engineer  in  chief  "with 
the  rank  of  a  lieutenant  colonel  in  the  Army 
and  a  commander  in  the  Na\'y",  and  six 
senior  engineers  "each  with  the  rank  of  a 
major  in  the  Army  and  a  lieutenant  commander 
in  the  Xa^-^•.'' 

Coast  Guard  created. — By  act  of  January 
28,  1915  (38  Stat.,  800),  the  Revenue-Cutter 
Service  and  the  Life-Sa\dng  Service  were  con- 
solidated and  established  as  the  Coast  Guard, 
"which  shall  constitute  a  part  of  the  militaiy 


forces  of  the  United  States  and  which  shall 
operate  under  the  Treasury  Department  in 
time  of  peace  and  operate  as  a  part  of  the  Na\'y, 
subject  to  the  orders  of  the  Secretary  of  the 
Na\y,  in  time  of  war  or  when  the  President 
shall  so  direct  *  *  *  :  Provided,  That  no 
provision  of  this  act  shall  be  construed  as 
giving  any  officer  of  either  the  Coast  Guard  or 
the  Navy,  military  or  other  control  at  any  time 
over  any  vessel,  officer,  or  man  of  the  other 
service  except  by  direction  of  the  President." 
The  same  act,  section  3,  pro\'ided  that  all 
existing  laws  affecting  rank  in  the  Revenue- 
Cutter  Service  shall  apply  to  the  correspond- 
ing positions  in  the  Coast  Guard. 

Precedence  by  date  of  commission. — By 
act  of  Augu-st  29,  1916  (.39  Stat.,  600),  it  was 
pro\"ided  that,  "whenever  the  personnel  of 
the  Coast  Guard,  or  any  part  thereof,  is  oper- 
ating with  the  personnel  of  the  Navy  in  ac- 
cordance with  law,  precedence  between  com- 
missioned officers  of  corresponding  grades  in 
the  two  services  shall  be  determined  by  the 
date  of  commissions  in  those  grades";  and 
that  "whenever,  in  time  of  war,  the  Coast 
Guard  operates  as  a  part  of  the  Na\y  in  accord- 
ance with  law,  the  personnel  of  that  service 
shall  be  subject  to  the  laws  prescribed  for  the 
government  of  the  Na\y." 

Temporary  ranks  established. — Bv  act 
of  July  1,  1918  (40  Stat.,  732),  the  temporary 
promotion  was  authorized  of  the  captain  com- 
mandant "to  the  rank  of  commodore  in  the 
Navy  and  brigadier  general  in  the  Army,  "• 
and  the  engineer  in  claief  of  the  Coast  Guard 
"to  the  rank  of  captain  in  the  Na\y  and  colonel 
in  the  Army. "  The  same  act  also  authoi'ized 
temporarj^  promotion  of  other  officers  in  the 
Coast  Guard. 

Titles  of  officers.— An  act  of  June  5,  1920 
(41  Stat.,  879),  pro^^-ded  that  "titles  of  com- 
missioned officers  of  the  Coast  Guard  are  hereby 
changed  as  follows:  Senior  captain  to  com- 
mander, captain  to  lieutenant  commander,  first 
lieutenant  to  lieutenant,  second  lieutenant  to 
lieutenant  junior  grade,  third  lieutenant  to 
ensign,  captain  of  engineers  to  lieutenant  com- 
mander (engineering),  first  lieutenant  of  en- 
gineers to  lieutenant  (engineering),  second  lieu- 
tenant of  engineers  to  lieutenant  junior  grade 
(engineering),  and  third  lieutenant  of  engineers 
to  ensign  (engineering):  Provided,  That  all  laws 
applicable  to  the  titles  hereby  abolished  in  the 
Coast  Guard  shall  apply  to  the  titles  hereby 
established." 


705 


Sec.  1492. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


Coast  Guard  a  part  of  the  Navy  when  so 
serving. — Revenue  cutters  are  placed  under 
the  direction  of  the  Secretary  of  tlic  Navy  and 
for  all  practical  purposes  are,  during  the  time 
they  cooperate  with  the  Navy,  a  part  of  the 
Na\y.  Tliis  seems  entirely  clear  from  the 
provisions  of  section  1492,  Revised  Statutes, 
which  designates  tlie  relative  rank  of  officers 
of  the  Revenue-Cutter  Service  when  serving 
in  accordance  with  law  "as  apart  of  the  Navy.  " 
(3  0omp.  Dec.,543.) 

It  is  a  matter  of  history  that  during  the  war 
with  Spain  vessels  of  the  Revenue-Cutter 
Service  fought  side  by  side  with  vessels  of 
the  Na\7'  proper.  If  men  were  appointed 
to  office  or  enlisted  in  the  Revenue-Cutter 
Ser^dce  for  the  war  only,  and  under  the  pro- 
^dsions  of  section  2757,  Revised  Statutes,  the 
President  directed  them  to  cooperate  with  the 
Na\y,  and  they  were  placed  under  the 
direction  of  the.«Secretary  of  the  NaN-y  and  the 
expenses  thereof  were  defrayed  by  the  Navy 
Department,  and  they  sei*ved  creditably  in 
cooperation  with  the  Navy  during  the  war 
with  Spain,  and  were  honorably  discharged  at 
the  close  of  the  war.  Held,  that  such  officers 
and  enUsted  men  so  serWng,  so  paid,  so  directed, 
and  so  governed,  constituted  a  part  of  the 
temporary  force  of  the  Navy  during  the  war 
with  Spain  within  the  meaning  of  the  act  of 
March  3,  1899,  granting  extra  pay  to  "the 
officers  and  enlisted  men  comprising  the 
temporary  force  of  the  Na\'y  during  the  war 
with  Spain. "  Held,  further,  that  this  deci- 
sion is  not  applicable  to  officers  and  enlisted 
men  who  may  have  been  appointed  to  office  or 
enlisted  in  the  Revenue-Cutter  Service  for 
the  w^ar  only,  who  did  not  serve  by  order  of 
the  President  under  the  direction  of  the  Secre- 
tary of  the  Naiy  in  cooperation  with  the  Navy 
during  the  war.     (5  Comp.  Dec,  671.) 

It  is  clear  that  the  Revenue-Cutter  Service, 
neither  in  its  inception  nor  in  its  more  recent 
development,  is  to  l)e  regarded  as  a  part  of  the 
Navy,  to  which  it  would  niiturally  be  assigned, 
unless  it  is  cooperating  therewith  in  accordance 
with  the  express  provision  of  law  on  the  subject 
(28  Op.  Atty.  Gen. ,543). 

Despite  the  military  character  given  the 
Revenue-Cutter  Service  by  existing  legislation, 
it  is  still  an  organization  separate  and  distinct 
from  the  Na\y,  under  the  control  of  the  Secre- 
tary of  the  Treasury,  and  assigned  to  duty  in 
connection  with  the  collection  of  the  customs 
revenue.  Now  as  formerly  it  can  only  be 
regarded  as  part  of  the  Navy  when  serxing 
therewith  in  accordance  with  law  (sees.  1492 
and  2757,  R.  S.).     (28  Op.  Atty.  Gen.,  543.) 

The  word  "Navy' '  as  used  in  the  act  of  Feb- 
ruary 28,  1919,  section  3  (40  Stat.,  1203), 
providing  for  the  payment  of  mileage  to  men 
honorably  discharged  from  the  Na\y  since 
November  11,  1918,  is  broad  enough  to  include 
men  honorably  discharged  from  the  Coast 
Guard  at  any  time  when  the  Coast  Guard 
operates,  pursuant  to  law,  as  a  part  of  the  Navy. 
(File  28762-329,  Mar.  10,  1919,  C.  M.  0.  114- 
1919,  p.  16.) 


A  registrant  under  the  selective  draft  law  who 
has  serxed  in  the  Coast  Guard  in  time  of  war 
shoiild  1)0  considered  as  having  "serv^ed  in  the 
Na\y  of  the  United  States' '  so  as  to  bring  him 
within  the  purview  of  the  act  of  August  31, 
1918,  section  3,  providing  "  that  men  registered 
under  the  provisions  of  this  act  who  have 
served  in  the  Navy  of  the  United  States  shall, 
upon  their  own  ap])lication.  be  permitted  to 
reenlist  in  the  naval  or  marine  service  of  the 
United  States  with  and  by  the  approv^al  of  the 
Secretary  of  the  Navv.' '  (File  28798-773,  Nov. 
23, 1918,  C.  M.  0. 174-1918.  pp.  21,  22;  compare 
C.  M.  O.  141-1918,  pp.  27,  28,  holding  that  en- 
listed men  of  the  Coast  Guard  while  operating 
as  a  part  of  the  Navy  are  not  eligil^le  for  ap- 
pointment to  the  Naval  Academy  as  midship- 
men under  the  act  of  June  30,  1914,  38  Stat., 
410,  wliich  authorized  such  appointments  to 
be  made  "from  the  enlisted  men  of  the  Navy.' ') 

The  Navy  of  the  United  States,  in  law  and 
in  fact,  embraces  the  Coast  Guard  in  time  of 
war  just  as  certainly  as  it  does  any  other  mili- 
tary force  operatnig  under  the  orders  of  the 
Secretary  of  the  Navy.  Accordingly  the  word 
"Navy''  is  broad  enough  to  include  the  Coast 
Guard  in  tinie  of  war,  service  in  the  Coast 
Guard  at  such  time  is  service  in  the  Navy,  and 
enlisted  men  of  the  Coast  Guard  are  enlisted 
men  of  the  Navy.  Howev^er,  it  has  repeatedly 
been  held  that  the  meaning  of  the  word ' '  Navy'" ' 
may  vary  as  iLsed  in  different  statutes;  thus  it 
may  be  used  in  a  restricted  sense  as  including 
only  what  may  he  called  the  Navy  proper  and 
excluding  the  Marine  Corps,  Coast  Guard,  and 
other  organizations  wliich  would  be  embraced 
by  the  term  "Navy' '  when  given  its  extended 
meaning.  Where  the  language  of  the  law, 
its  purpose  and  spirit,  and  the  object  wliich  it 
was  intended  to  accomplish,  indicate  that  it 
was  the  intention  of  Congress  to  include  the 
Coast  Guard  as  well  as  the  Navy  proper,  the 
word  "Navy"  will  be  construed  accordingly 
as  embracing  the  Coast  Guard.  (File  28798- 
773,  Nov.  22,  1918.) 

Miscellaneous. — WTierever  the  expenses  of 
the  Coast  Guard  are  paid  by  the  Navy  Depart- 
ment, in  accordance  with  law,  any  naval  appro- 
priations from  which  payments  are  so  made 
shall  be  reimbursed  from  available  appropria- 
tions for  the  Coast  Guard.  (Act  Aug.  29,  1916, 
39  Stat.,  600;  but  see  acts  June  15,  1917,  40 
Stat.,  212,  July  1,  1918,  40  Stat.,  731,  and  Jidv 
11,  1919,  41  Stat.,  150.) 

Purchase  of  naval  supplies  by  Coast  Guard 
personnel.     (See  act  Mar.  6,  1920,  41  Stat.,  506.) 

Pay  and  allowances  of  Coast  Guard  personnel 
same  as  Navy.  (See  act  Mav  18,  1920,  sec.  8,  41 
Stat.,  603.) 

Commissioned  officers  of  Coast  Guard  em- 
powered to  serve  on  naval  courts-martial  in 
time  of  war.     (Act  Oct.  6,  1917,  40  Stat.,  393.) 

Assignment  to  duty  of  Coast  Guard  personnel. 
(See  act  Aug.  29,  1916,  39  Stat.,  601.) 

Enlisted  personnel  of  Coast  Guard  not  to  be 
detailed  to  the  office  of  the  Coast  Guard.  (Act 
May  29,  1920,  41  Stat.,  650.) 


706 


The  Navy. 


Pt.2.  REVISED  STATUTES. 
OF    PROMOTION    AND    ADVANCEMENT. 


Sec.  1493. 


Sec.  1493.  [Physical  examination.]  No  officer  shall  be  promoted  to  a 
higher  grade  on  the  active  list  of  the  Navy,  except  in  the  case  provided  in  the 
next  section,  until  he  has  been  examined  by  a  board  of  naval  surgeons  and 
pronounced  physically  qualified  to  perform  all  his  duties  at  sea. —  (21  Apr., 
1864,  c.  63,  s.  4,  v.  13,  p.  53.     28  July,  1866,  c.  312,  s.  1,  v.  14,  p.  344.) 


Amendment  to  this  section  was  made  by  act  of 
August  29,  1916  (39  Stat.,  611),  which  pro- 
vided that ' '  the  provisions  of  sections  f oiu"- 
teen  hundred  and  ninety-tliree  and  four- 
teen hundred  and  ninety-four  of  the  Re- 
vised Statutes  of  the  United  States  shall 
applv  to  the  Marine  Coi^ps; "  and  by  act  of 
May" 22,   1917,  section  20  (40  Stat.,   89), 
wliich  provided  "tliat  hereafter  all  laws 
relating  to  the  examination  of  officers  of  the 
Navy  for  promotion  shall  be  construed  to 
apply  to  the  regular  advancement  of  staff 
officers  to  higher  ranks  on  the  active  list  the 
same  as  though  such  advancements  in  rank 
were    promotions    to    higher    grades:  Pro- 
vided, That   examinations    for    such    staff 
officers  shall  not  be  required  •  except  for 
such  regular  advancements  in  rank." 
Boards  of  medical  examiners  may  be  convened 
by  senior  officer  present  or  other  command- 
ing officer  on  a  foreign  station  when  so 
authorized  by  the  Secretary  of  the  Navy. 
(Act  Mar.  4,  1917,  39  Stat.,  1171.) 
Retirement  of  officers  for  physical  incapacity. 
See  sections  1448-1457,    Re\'ised  Statutes, 
and  notes  thereto. 
Retirement  with  higher  rank  of  officers  failing 
in  physical  examination  for  promotion  is 
authorized  by  act  of  March  4, 1911  (36  Stat., 
1267);  but  this  does  not  apply  to  officers  of 
the   rank   of  lieutenant  commander  and 
above  (act  Aug.  29,  1916,  39  Stat.,  579,  as 
amended  by  act  July  1, 1918,  40  Stat..  118). 
Selection  of  officers  for  promotion  does  not  dis- 
pense ■with  examinations  required  for  pro- 
motion by  seniority.     (Act  Aug.  29,  1916, 
39  Stat.,  579.) 
Authority  to  convene  boards  of  medical 
examiners  on  foreign  stations. — The  words 
"on  a  foreign  station,"  as  used  in  the  act  of 
March  4,  1917  (aboA'e  noted),  are  construed  by 
the  Navy  Department  to  mean  '  'outside  of  the 
continental  limits  of  the  United  States."     Ac- 
cordingly, the  Secretary  of  the  Navy  may  em- 
power commanding  officers  of  fleets  to  convene 
boards  of  medical  examiners,  such  authority  to 
become  effective  when  their  commands  are  out- 
eide  the  continental  limits  of  the  United  States, 
and  not  merely  when  they  are  in  waters,  ports, 
and  stations  in  foreign  countries.     (File  26521- 
186:30,  Oct.  8,  1920.) 

Examinations  in  the  Marine  Corns. — 
Tlie  act  of  July  28,_  1892  (27  Stat.,  321),' pro- 
vided that  "promotions  to  every  grade  of  com- 
missioned officers  in  the  Marine  Coi-ps  below 
the  grade  of  Commandant  shall  be  made  in  the 
same  manner  and  under  the  same  conditions  as 
now  are  or  may  hereafter  be  prescribed,  in  pur- 
suance of  law,  for  commissioned  officers  of  the 
Army:  Provided,  That  examining  boards  which 
may  be  organized  under  the  provisions  of  tliis 


act  to  determine  the  fitness  of  officers  of  the 
Marine  Corps  for  promotion  shall  in  all  cases 
consist  of  not  less  than  five  officers,  three  of 
whom  shall,  if  practicable,  be  officers  of  the 
Marine  Coips,  senior  to  the  officer  to  be  exam- 
ined, and  two  of  whom  shall  be  medical  officers 
of  the  Navy:  Provided  further,  That  when  not 
practicable  to  detail  officers  of  the  Marine  Corps 
as  members  of  such  examining  boards,  officers 
of  the  line  in  the  NaAy  shall  be  so  detailed." 
Under  this  law  the  medical  officers  examined 
the  candidate  as  to  his  physical  and  mental  fit- 
ness for  promotion  and  made  a  written  report 
thereof  to  the  examining  board.  The  mental 
and  physical  fitness  of  the  candidate,  and  all 
questions  which  arose  in  connection  therewith, 
were  then  voted  upon  by  each  member  of  the 
entire  board.  This  part  of  the  examination 
preceded  the  moral  and  professional  examina- 
tion. \\lien  the  candidate  was  found  mentally 
and  physically  qualified  for  promotion,  the 
medical  officers  were  excused  from  further  at- 
tendance with  the  board.  Thus  the  board 
wliich  passed  upon  the  mental  and  physical 
fitness  of  an  officer  of  the  Marine  Corps  for  pro- 
motion was  not  "a  board  of  naval  surgeons," 
but  a  board  consisting  partly  of  officers  of  the 
Marine  Corps  or  nonmedical  officers  of  the  Navy 
and  partly  of  medical  officers  of  the  Navy. 
(File  28687-14,  Dec.  14,  1916.) 

To  comply  with  the  provision  in  the  act  of 
August  29,  1916  (39  Stat.,  611),  extending  sec- 
tion 1493,  Revised  Statutes,  to  the  Marine 
Corps,  the  physical  examination  of  an  officer  of 
the  Marine  Corps  preliminary  to  promotion 
must  be  conducted  by  a  "board  of  naval  sur- 
geons," and  this  board  must  consist  of  more 
than  one  medical  officer.  The  board  should 
convene  separately  from  the  board  for  the  moral 
and  professional  examination.  It  may  consist 
of  the  same  two  medical  officers  who  are  also  on 
the  examining  board  as  required  by  the  act  of 
July  28,  1892.     (File  28687-14,  Dec.  14,  1916.) 

There  is  no  doubt  that  the  act  of  August  29, 
1916,  has  the  effect  of  adding  the  words  "or 
Marine  Corps"  after  the  word  "Nayj'',"  in  sec- 
tion 1493.  Tliis  section  provides  that  the  can- 
didate, before  promotion  and  except  as  pro- 
vided in  the  next  section,  must  be  examined 
by  a  board  of  naval  surgeons  and  pronounced 
physically  qualified  to  perform  all  his  "duties 
at  sea."  The  quoted  words  were  not  repealed 
by  the  act  of  August  29,  1916.  While  the  para- 
mount duties  of  a  Marine  officer  are  "field 
duties"  and  not  "sea  duties,"  yet  Marine  offi- 
cers perform  sea  duty.  Such  duties  being  the 
minor  part  of  a  Marine  officer's  duties,  and  the 
"board  of  naval  surgeons"  being  empowered  to 
examine  the  candidate  only  as  to  his  phj^sical 
qualifications  to  perfonn  "his  duties  at  sea," 
the  mental  and  physical  examination  required 


707 


Sec.  1493. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


l)y  (lie  act  of  Julv  28,  1892,  is  still  necessary  to 
determine  the  officer's  fitness  to  perform  all  the 
other  duties  of  tlie  grade  to  which  he  is  to  be 
promoted.     Hnle  2S(i87-14.  Dec.  14,  1916.) 

The  act  of  July  28,  1892,  is  not  expressly  or 
impliedly  repealed  In'  the  act  of  August  29, 
1910,  but  is  still  in  force.  Suggested  that  sec- 
tions 1493  and  1494,  Revised  Statutes,  be 
amended  so  as  to  avoid  the  complications  re- 
sulting from  the  application  of  those  sections 
as  they  now  exist  to  the  Marine  Corps.  (File 
28G87-14,  Dec.  14,  191G.) 

Prior  to  the  act  of  August  29, 1916,  it  was  held 
that  the  cases  which  a  board  of  naval  surgeons 
constituted  under  section  1493  was  authorized 
to  examine  and  pronounce  upon  were  cases  of 
officers  in  the  line  of  promotion  on  the  active 
list  of  the  Navy,  exclusively,  and  that  such 
board  was  not  invested  by  law  with  authority 
to  examine  and  pronounce  upon  the  physical 
qualifications  of  a  Maiine  officer  for  duty  at  sea; 
that  section  1621,  Revised  Statutes,  which 
declares  that  the  Marine  Corps  shall  at  all  times 
be  subject  to  the  laws  and  regulations  estab- 
lished for  the  government  of  the  Navy,  except 
when  detached  for  service  with  the  Army  by 
order  of  the  President,  does  not  warrant  the 
inference  that  it  was  intended  to  subject  that 
corps  to  any  other  laws  and  regulations  of  the 
Navj'  than  such  as  relate  to  discipline  and 
maintenance,  within  which  category  section 
1493  did  not  fall.     (17  Op.  Atty.  Gen.,  117.) 

The  Secretary  of  the  Na\y  is  of  the  opinion 
that  the  laws  regulating  promotions  in  _  the 
Navy  and  Marine  Corps  should  be  identical; 
that  is,  that  promotions  in  the  Navy  and  Marine 
Corps  should  be  regulated  by  one  law  and  the 
proHsions  therefor  should  be  identical.  At 
present  there  are  numerous  differences  in  the 
methods  and  conditions  of  promotion  between 
the  Navy  and  Marine  Corps,  and  between 
different  branches  of  the  Na\^  proper,  itself. 
(File  28687-14.  Feb.  5,  1917.) 

Physical  examinations  prior  to  promotion  to 
all  grades  in  the  Marine  Corps  without  excep- 
tion are  required  by  the  Navy  law  contained 
in  section  1493  of  the  Revised  Statutes  as  ex- 
tended and  applied  to  the  Marine  Corps  by  the 
act  of  August  29,  1916.  This  requirement  is 
not  repealed  by  anything  contained  in  the  act 
of  June  4,  1920  (41  Stat.,  774).  relating  to  pro- 
motions in  the  Army.  (File  26521-405:1, 
Sept.  15,  1920.) 

"Board  of  naval  surgeons." — In  inter- 
preting section  1493,  Revised  Statutes,  it  is 
held  that  the  wording,  "a  board  of  naval 
surgeons,"  means  that  a  board  of  two  medical 
officers,  or  more,  of  the  Navy  is  empowered  to 
act  in  the  case  of  examination  of  officers  for 
promotion.  (Naval  Courts  and  Boards,  sec. 
665,  citing  file  26521-30;  see  also  file  28687-10, 
Oct.  31,  1916.) 

Other  than  the  section  itself,  there  is  no 
pro\Tsion  of  law  as  to  the  number  of  officers 
which  shall  constitute  the  "board  of  naval 
surgeons"  required  by  section  1493,  Revised 
Statutes.  It  was  the  opinion  of  the  Judge 
Advocate  General  of  the  Na^'^^,  under  date  of 
January  25, 1912  (file  26521-30),  that  the  board 
of  naval  surgeons  prescribed  by  section  1493 
"should  consist  of  more  than  one  medical 
officer."    Medical    boards    for    the    physical 


examination  of  officers  in  the  Navy  for  promo- 
tion, convened  pursuant  to  this  section  of  the 
Re\ised  Statutes,  in  general  consist  of  three 
medical  officers.  (File  28687-14,  Dec.  14, 
1916.) 

Section  1493  applicable  to  staff  offi- 
cers.—Prior  to  the  act  of  July  16,  1862  ( 12  Stat. , 
583),  there  was  no  law  which  required  officers 
in  any  branch  of  the  naval  service,  including 
the  ^^arine  Corps,  to  pass  a  physical  examina- 
tion as  a  preliminary  to  promotion.  The 
fourth  section  of  that  act  directed  the  Secretary 
of  the  Navy  to  appoint  an  adAdsory  board  of 
naval  officers,  whose  duty  was  to  carefully 
scrutinize  the  active  list  of  line  officers  in  the 
Navy,  above  and  including  the  grade  of  master, 
and  report  to  the  Secretary  in  writing  those 
found  to  be  worthy  of  promotion.  The  board, 
in  recommending  an  officer  for  promotion,  was 
to  certify  that  he  ' '  has  the  moral ,  mental ,  physi- 
cal, and  professional  qualifications  to  perform 
efficiently  all  his  duties,  both  at  sea  and  on 
shore,  of  the  grade  to  which  he  is  to  be  pro- 
moted." By  the  sixth  section  of  the  same  act 
a  similar  ad^^sory  board  was  to  be  appointed 
at  least  once  in  every  four  years.  These  pro- 
visions, which  applied  solely  to  line  ofl^cers 
of  the  Navj',  were  superseded  by  other  pro- 
visions on  the  same  subject  contained  in  the 
act  of  April  21,  1864,  chapter  63.  The  latter 
provisions  are  embodied  in  section  1493  et  seq. 
of  the  Revised  Statutes.  They  include  both 
line  and  staff  officers,  but  in  terms  extend  to 
those  only  who  are  "on  the  active  list  of  the 
Na^ry."     (17  Op.  Atty.  Gen.,  117.) 

Examinations  were  discontinued  for  promo- 
tion of  staff  officers  in  grade  by  act  of  May  22, 
1917,  section  20  (40  Stat.,  89),  which  act  and 
section  also  reenacted  a  pro\dsion  in  the  act  of 
March  4,  1917  (39  Stat.,  1182),  requiring  ex- 
aminations of  staff  officers  for  advancement  in 
rank,  "the  same  as  though  such  advancement 
in  rank  were  promotions  to  higher  grades." 
Prior  to  the  act  last  cited  it  had  been  held  that 
sections  1493  and  1496  which  proAade  that  no 
officer  shall  be  promoted  to  a  higher  "grade" 
on  the  active  list  until  his  physical,  mental, 
moral,  and  professional  fitness  therefor  has  been 
established  to  the  satisfaction  of  the  board  of 
examining  officers  appointed  by  the  President, 
does  not  require  that  a  staff  officer  be  subjected 
to  examination  prior  to  advancement  to  a 
higher  relative  rank  in  the  same  grade,  where 
more  than  one  rank  is  attached  to  said  grade; 
the  office  remains  the  same,  and  the  change  in 
relative  rank  may  be  indicated  by  a  notifica- 
tion from  the  Secretary  of  the  NaA-^^  no  exami- 
nation or  new  appointment  or  confirmation 
by  the  Senate  being  necessary.  (20  Op.  Attv. 
Gen.,  358.) 

Erroneous  promotion  of  officer  not 
physically  quaUfied. — An  ensign  in  the  Navy 
who  failed  to  pass  the  physical  examination  for 
promotion  to  lieutenant  (junior  grade)  but 
whose  name  was  inadvertently  included  in  the 
list  of  officers  who  had  passed  such  examination, 
and  who  because  of  such  inadvertence  was  not 
adv-ised  by  the  Na\'j  Department  of  his  failure 
to  pass  such  examination  but  was  appointed  and 
commissioned  as  a  lieutenant  (junior  grade)  and 
performed  service  as  such,  was  a  de  facto 
lieutenant  (junior  grade)  for  the  period  of  per- 


708 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1494. 


formance  of  such  service,  viz,  from  date  of 
receipt  by  him  of  his  commission  as  lieutenant 
(junior  grade)  to  date  of  notification  of  the  er- 
roneous issuance  of  such  commission,  and  is 
entitled  to  retain  pay  as  a  lieutenant  (junior 
grade)  received  by  him  for  such  period.  (19 
Comp.  Dec,  747.)' 

The  physical  qualification  required  by  sec- 
tion 1493,  Revised  Statutes,  as  a  condition 
precedent  to  the  promotion  of  naval  officers  is 
not  unconstitutional  (citing  13  Op.  Atty.  Gen., 
516,  520,  524,  525),  nor  is  it  directory  merely; 
and  an  ensign  who  was  nominated,  confirmed, 
and  commissioned  as  a  lieutenant  (junior 
grade),  without  having  qualified  for  such  pro- 
motion by  passing  the  physical  examination 
required  by  said  section,  did  not  become 
legally  invested  with  the  office  of  lieutenant 
(junior  grade).  (20  Comp.  Dec,  13,  citing 
Jouett  V.  V.S..  28  Ct.  Cls. ,  266.  Compare  note 
to  Constitution,  ante.  Art.  II,  sec.  2,  clause  2.) 

Pay  of  officer  while  undergoing  exami- 
nation.— Sections  1493  and  1496,  Re\dsed 
Statutes,  provide  for  an  examination  of  certain 
officers  of  the  Na^^^  as  a  prerequisite  to  their 
promotion.  The  temporary  absence  of  an 
officer  from  his  vessel,  not  on  special  duty,  or  on 
duty  consistent  with  the  exercise  of  the  duties 
of  his  position  on  the  vessel,  does  not  alter  his 
sea  status.  The  officer  in  this  case  was  not 
ordered  to  the  performance  of  any  specific  duty 
as  such.  The  examination  for  his  promotion 
was  rather  in  the  nature  of  an  incident  to  his 
ser\'ice  of  whatever  character  it  might  be  at  the 
time.  To  hold  that  his  absence  while  engaged 
in  examinations  under  the  law  for  his  promotion 
separated  him  from  his  ship  would  be  virtually 
to  exclude  officers  at  sea  from  the  benefits  in- 
tended to  apply  alike  to  all  grades  and  classes 
of  the  ser\'ice.  Examination  for  promotion  is 
incident  to  sea  service  as  well  as  to  shore  service, 
and  is  not  a  special  duty  inconsistent  with  serv- 


ice in  any  grade  or  class.  Accordingly,  held 
that  an  officer  of  the  Navy  attached  to  a  sea- 
going vessel  is  entitled  to  sea  pay  while  tempo- 
rarily absent  from  his  vessel  attending  examina- 
tions for  his  promotion,  unless  his  absence  is 
under  such  circumstances  that  it  operates  to 
detach  him  from  his  vessel ;  but  he  is  not  en- 
titled to  commutation  of  rations  for  the  reason 
that  he  is  not  then  "doing  duty  on  board,"  as 
required  by  section  1579,  Re\ised  Statutes. 
(4  Comp.  Dec,  455.) 

This  section  not  applicable  to  temporary 
promotions. — See  note  to  section  1496, 
Revised  Statutes. 

New  physical  examination  not  required 
in  case  of  delayed  promotion. — An  officer 
ha\'ing  qualified  physically  upon  examination 
for  promotion  by  a  board  of  naval  examiners, 
he  may  thereafter  be  promoted  when  found 
mentally,  morally,  and  professionally  qualified 
■without  any  further  physical  examination, 
notwithstanding  that  considerable  delay  may 
occur  before  his  qualifications  are  established 
upon  examination  by  a  naval  examining  board 
in  accordance  with  section  1496,  Rei-ised 
Statutes.  A  new  physical  examination  in 
such  cases  of  delay  ia  customarily  required  by 
the  executive  for  the  good  of  the  servdce,  in 
order  that  an  officer  may  not  be  advanced  to  a 
higher  grade  when  not  physically  in  condition 
to  perform  the  duties  thereof;  but  another 
formal  examination  by  a  board  of  medical  ex- 
aminers might  be  dispensed  with  if  the  officer 
has  once  fully  qualified  physically  for  pro- 
motion, notwithstanding  that  delay  may  occur 
in  the  actual  promotion  of  such  officer,  or  he 
might  under  such  circumstances  be  examined 
and  promoted  upon  the  informal  report  of  a 
single  medical  officer  or  a  non-statutory  board. 
(File  26266-627:1,  Jan.  30,  1919;  see  also  22 
Comp.  Dec,  153;  compare  Hooper  v.  U.  S., 
53  Ct.  Cls.,  90.) 


Sec.  1494.  [Physical  disqualification  by  wounds.]  The  provisions  of  the 
preceding  section  shall  not  exclude  from  the  promotion  to  which  he  would 
otherwise  be  regularly  entitled  any  officer  in  whose  case  such  medical  board 
may  report  that  his  physical  disqualification  was  occasioned  by  wounds  re- 
ceived in  the  line  of  his  duty,  and  that  such  wounds  do  not  incapacitate  him 
for  other  duties  in  the  grade  to  which  he  shall  be  promoted. —  (21  April,  1864,  c. 
63,  s.  4,  V.  13,  p.  53.     28  July,  1866,  c.  312,  s.  1,  v.  14,  pp.  344,  345.) 


Amendment  to  this  section  was  made  by  act 
of  August  29,  1916  (39  Stat.,  611),  which 
provided  that  "the  provisions  of  sections 
fourteen  hundred  and  ninety-three  and 
fourteen  hundred  and  ninety-four  of  the 
Revised  Statutes  of  the  United  States  shall 
apply  to  the  Marine  Corps;"  and  by  act  of 
May  22,  1917,  section  20  (40  Stat.,  89), 
which  pro\T.ded  "that  hereafter  all  laws 
relating  to  the  examination  of  officers  of 
the  Navy  for  promotion  shall  be  construed 
to  apply  to  the  regular  advancement  of 
staff  officers  to  higher  ranks  on  the  active 
list  the  same  as  though  such  advancements 
in  rank  were  promotions  to  higher  grades: 
Provided,  That  examinations  for  such  staff 
officers  shall  not  be  reciuired  except  for 
such  resrular  advancement  in  rank."     It 


is  further  provided  by  the  act  of  August  29, 
1916  (39  Stat.,  579),  that  "no  captain,  com- 
mander, or  lieutenant  commander  shall  be 
promoted  unless  he  has  had  not  less  than 
two  years'  actual  sea  service  on  seagoing 
ships  in  the  grade  in  which  ser\'ing." 
By  act  of  July  11,  1919  (41  Stat.,  147),  it  was 
proAided  "that  the  pro^dsions  of  the  act  of 
August  29,  1916,  regarding  the  promotion 
of  captains  in  the  line  of  the  permanent 
Navy  shall  not  restrict  the  promotion  of 
such  captains  as  may  have  been  wounded 
in  line  of  duty  and  who  are  now  on  the 
active  list,  and  such  captains  shall  be  en- 
titled to  the  benefits  of  the  provisions  of 
section  1494,  Revised  Statutes  of  the 
United  States,  and  also  to  the  benefits  of 
the  act  of  March  4,  1911  [;?6  Stat..  1267]." 


709 


Sec.  1496. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


The  expression  "wounds  received  in  the 
line  of  his  duty,"  found  in  Kertion  1494, 
Kovisod  Statutes,  nieaus  precisely  wliat  it  says, 
and  is  not  restricted  to  any  particular  part  of 
that  duty,  as  to  wounds  received  in  battle  or 
in  some  hazardous  enterprise.  The  statute  is 
plain  and  unanihis;uous,  and  therefore  neither 
calls  for  nor  admits  of  construction.  It  must 
be  read  as  it  is  w-ritten.  An  officer  thus  dis- 
qualilied  for  sea  duty  is  eligible  for  promotion 
if  his  Avounds  do  not  incapacitate  him  for  other 
duties  in  the  grade  to  which  he  seeks  promo- 
tion. The  words  "other  duties"  in  section 
1494  refer  to  duties  other  than  duties  at  sea. 
(23  Op.  Atty.  Gen.,  324.) 

For  definition  of  "line  of  duty"  see  note  to 
section  1451,  Re\dsed  Statutes. 

Precedents  of  Navy  Department. — ^In 
1898  Ensign  Wilfred  V.  Powelson  was  so  seri- 
ously injured  in  both  legs  by  falling  through 
a  hatch,  as  to  be  physically  disqualified  for 
duty  on  shipboard,  yet  he  was  under  this  sec- 
tion promoted  to  lieutenant  (junior  grade), 
the  board  haAdng  found  that  his  wounds  did 
not  incapacitate  him  for  other  duties  in  that 
grade.     (23  Op.  Atty.  Gen.,  324.) 

In  1895  Assistant  Engineer  Walter  S.  Burke, 
while  on  duty  on  shipboard,  had  his  arm 
crushed  in  the  machinery,  resulting  in  ampu- 
tation of  the  forearm.  In  August,  1896,  upon 
examination  for  promotion,  the  board  found 
that  solely  from  the  facts  above  stated  he  was 
disqualified  for  the  performance  of  his  duties 
at  sea  but  that  he  was  not  incapacitated  for  the 
other  duties  of  his  profession  in  the  grade  to 
which  he  sought  to  be  promoted  and  he  was 
promoted  accordingly.  (23  Op.  Atty.  Gen., 
324.) 

In  1868  Passed  Assistant  Engineer  Cooper 
lost  a  leg  from  having  it  crushed  in  machinery 
while  on  duty  on  shipboard.  Though  incapac- 
itated for  sea  service,  he  was  afterward  pro- 
moted, under  this  section,  and  performed  satis- 
factorily the  shore  duties  to  which  he  was 
assigned.  In  November,  1877,  he  was  ordered 
before  a  retiring  board,  which  found  that  he 
was  not  incapacitated  for  active  service,  in 
the  meaning  of  the  law,  and  therefore  did  not 
recommend  him  for  retirement.  Upon  the 
record  of  these  proceedings,  President  Hayes 
made  this  endorsement:  '"this  report  and  find- 
ing are  approved.  Mr.  Cooper  w411  not  be  re- 
tired." This  could  only  have  been  upon  the 
ground  that  the  officer,  though  disqualified 
for  "duties  at  sea,"  was  not  incapacitated  for 
the  "other  duties"  mentioned  in  section  1494. 
(23  Op.  Atty.  Gen.,  324.) 

The  precedents  of  the  Navy  Department 
under  section  1494,  Revised  Statutes,  are 
correct;  such  precedents  should  not  be  departed 
from  in  the  case  of  a  particular  officer,  unless 
they  are  clearly  Avrong  or  detrimental  to  the 
service,  even  if  there  were  doubt  as  to  their 
correctness.     (23  Op.  Atty.  Gen.,  324.) 


Purpose  of  section  1494. — There  are 
various  duties  other  and  no  less  important  than 
those  on  shipboard;  and  these  under  existing 
regulations  must  l)e  performed  by  officers  of 
various  grades.  This  being  so,  Congress  may 
well  fill  these  places  from  meritorious  officers 
whose  wounds  received  in  the  ser\dce  have 
incapacitated  them  for  active  duty  at  sea,  and 
provide  for  their  promotion  in  due  course 
as  it  has  done.  There  is  no  rea.son  why  an 
officer  wounded  in  the  service  should  not  be 
promoted  as  well  as  his  more  fortunate  brother, 
if  there  are  duties  in  the  higher  grade  which 
he  can  satisfactorily  and  sufficiently  perform; 
and  this  is  recognized  in  the  section  under 
consideration.     (23  Op.  Atty.  Gen.,  324.) 

Practical  objections  can  not  be  remedied 
by  administrative  action. — The  real  objec- 
tion, if  there  be  any,  to  the  promotion  of  an 
officer  physically  disqualified  for  duty  on  ship- 
board is  that  such  promotion  would  to  a  great 
extent  prevent  the  service  from  receiving  in 
that  grade  all  the  benefit  it  would  receive  from 
the  service  of  a  sound  man;  and  as  the  number 
of  such  officers  is  limited,  the  whole  may  be 
required  for  sea  duty,  and  the  filling  of  one  or 
more  vacancies  by  promotion  of  men  fit  for 
shore  duty  alone  might  be  detrimental  to  the 
service.  If  the  statute  under  consideration 
(sec.  1494)  were  ambiguous  and  it  were  clear 
that  such  ijromotion  of  officers  who  are  capable 
of  shore  duty  only  was  seriously  detrimental 
to  the  service,  this  might  be  a  reason  for  giving 
it  another  construction,  if  possible.  But  the 
statute  is  not  ambiguous,  and  no  rule  of  inter- 
pretation permits  us  to  do  violence  to  its  plain 
terms  in  order  to  avoid  what  is  at  best  only  a 
remote  possibility  and  one  which  Congress 
could  not  have  overlooked  in  framing  these 
sections  (sees.  1493  and  1494);  and  one  which 
has  not  been  a  serious  menace  to  the  service 
in  the  30  or  more  years  since  the  legislation 
was  enacted.  All  these  considerations  are 
exclusively  in  the  discretion  of  Congress.  If 
it  shall  be  found  that  under  existing  laws  and 
practice  the  number  of  officers  of  a  certain 
grade  fit  for  sea  duty  is  not  adequate  to  the 
requirements  of  that  branch  of  the  service, 
Congress  may  correct  the  evil  by  either  in- 
creasing the  number  or  requiring  full  qualifica- 
tion for  promotion.     (23  Op.  Atty.  Gen.,  324.) 

The  act  of  JvQy  11,  1919  (above  quoted), 
waives  the  proAisions  of  the  selection  law  in  the 
case  of  any  captain  who  was  on  the  active  List 
on  the  date  of  said  act  and  who  had  been 
woimded  in  line  of  duty.  Any  such  captain 
was  thereby  made  eligible  for  promotion  by 
seniority,  under  the  law  as  it  stood  prior  to  Au- 
gust 29,  1916;  and  under  section  1494  may  be 
promoted  if  physically  qualified  for  duties 
other  than  at  sea;  or,  if  not  so  qualified,  is  enti- 
tled, on  retirement,  to  the  rank  to  which  his 
seniority  entitled  him  to  be  promoted.  (File 
26521-351,  July  31  and  Sept.  19,  1919.) 

Marine  Corps  examinations. — See  note  to 
section  1493,  ReAdsed  Statutes. 

Sec.  1495.  [Examinations,  when;  and  effect  of.]  Officers  subject  to  exam- 
ination before  promotion  to  a  grade  limited  in  number  by  law  shall  not  be 
entitled  to  examination  in  such  a  sense  as  to  give  increase  of  pay  until  desig- 


710 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1496. 


nated  by  the  Secretary  of  the  Navy  to  fill  vacancies  in  the  higher  gi-ade ;  and 

officers  eligible  for  promotion  to  a  grade  not  limited  in  number  shall  not  be 

entitled  to  examination  until  ordered  to  present  themselves  for  examination 

or  until  a  class,  in  which  they  are  included,  has  been  so  ordered  by  the  Secretary 

of  the  Navy.— (3  Mar.,  1873,  c.  230,  s.  1,  v.  17,  p.  555.     22  June,  1874,  c.  392, 

V.  18,  p.  191.) 

examinations  for  promotion  of  officers  in  the 
Marine  Corps.     (25  Op.  Atty.  Gen.,  568.) 

Engineer  ofi&cers. — Under  the  law  and  the 
regulations  a  first  assistant  engineer  became 
eligible  to  examination  for  promotion  when  he 
had  served  two  years  at  sea  upon  a  naval 
steamer.  But  he  was  merely  eligible.  He 
was  not  entitled  to  be  examined  until  his  turn 
for  promotion  had  arrived  or  was  near  at  hand. 
In  no  event  therefore  could  he  demand  that  the 
increased  pay  of  his  new  grade  should  besin 
untU  he  had  a  right  to  be  examined  for  promo- 
tion.    (Hunt  V.  U.  S.,  116  U.  S.,  394,  397.) 

Examination  of  ensigfns. — The  grade  of 
lieutenant  (junior  grade)  being  a  grade  "not 
limited  in  number"  ^vithin  the  meaning  of 
section  1495,  Re\dsed  Statutes,  an  ensign  is 
not  entitled  to  be  examined  for  promotion  to 
the  grade  of  lieutenant  (junior  grade)  on  his 
termination  of  three  years  service  in  the  grade 
of  ensign  unless  ordered  to  present  himself 
for  examination  or  until  a  class  in  which  he  is 
included  has  l)een  so  ordered  by  the  Secretary 
of  the  Navj'.     (18  Comp.  Dec. ,466.) 

The  grade  of  lieutenant  (junior  grade)  is  a 
grade  not  limited  in  number.  The  right  of 
officers  to  examination  for  promotion  to  a 
grade  "not  limited  in  number"  prior  to  their 
being  ordered  to  present  themselves  therefor 
is  governed  by  section  1495,  Revised  Statutes. 
(22  Comp.  Dec,  565,  citing  18  Comp.  Dec, 
466,  17  Comp.  Dec,  605,  Hunt  v.  U.  S.,  116 
U.  S.,  394,  397,  Doyle  v.  U.  S.,  48  Ct.  Cls.,  142; 
see  also  24  Comp.  Dec,  639.) 

Sec.  1496.  [Mental,  moral,  and  professional  examination.]  No  line  officer 
below  the  grade  of  commodore,  and  no  officer  not  of  the  fine,  shall  be  promoted 
to  a  higher  gi-ade  on  the  active  list  of  the  Navy  until  his  mental,  moral,  and 
professional  fitness  to  perform  all  his  duties  at  sea  have  been  estabfished  to 
the  satisfaction  of  a  board  of  examining  officers  appointed  by  the  President.— 
(21  April,  1864,  c.  63,  s.  1,  v.  13,  p.  53.) 


Examination  of  staff  officers  for  advancement 
in  rank.  See  act  of  May  22,  1917,  section 
20  (40  Stat.,  89),  quoted  in  note  to  section 
1494,  Revised  Statutes. 

See  notes  to  sections  1505  and  1562,  Revised 
Statutes. 

Examinations  in  Marine  Corps. — ^The  act 

of  October  1,  1890  (26  Stat.,  562),  relating  to  the 
Army,  directs  that  examinations  be  conducted 
at  such  times  anterior  to  the  accruing  of  the 
right  to  promotion  as  may  be  best  for  the 
interests  of  the  service.  This  provision  is 
made  to  apply  to  the  examination  for  promo- 
tion of  commissioned  officers  in  the  Marine  Corp 
below  the  grade  of  commandmant  by  the  act  of 
July  28,  1892  (27  Stat.,  321).  The  act  of  Febru- 
ary 2,  1901  (31  Stat.,  756,  sec.  32),  relating  to 
the  Army,  provides  that  "when  the  exigencies 
of  the  service  of  any  officer  who  would  be 
entitled  to  promotion  upon  examination  re- 
quire htm  to  remain  absent  from  any  place 
where  an  examining  board  could  be  convened, 
the  President  is  hereby  authorized  to  promote 
such  officer,  subject  to  examination,  and  the 
examination  shall  take  place  as  soon  thereafter 
as  practicable.  If  upon  examination  the 
officer  be  found  disqualified  for  promotion,  he 
shall,  upon  the  approval  of  the  proceedings  by 
the  Secretary  of  War,  be  treated  in  the  same 
manner  as  if  he  had  been  examined  prior  to 
promotion."  By  the  act  of  July  28,  1892, 
supra,  this  provision  of  the  act  of  February  2, 
1901,    is    undoubtedly    made    applicable    to 


Amendment  to  this  section  was  made  by  act  of 
May  22,  1917,  section  20  (40  Stat.,  89), 
which  provided  "that  hereafter  all  lawa 
relating  to  the  examination  of  officers  of  the 
Navy  for  promotion  shall  be  construed  to 
apply  to  the  regular  advancement  of  staff 
officers  to  higher  ranks  on  the  active  list 
the  same  as  though  such  advancements  in 
rank  were  promotions  to  higher  grades: 
Provided,  That  examinations  for  such  staff 
officers  shall  not  be  required  except  for 
such  regular  advancements  in  rank."  Also 
by  act  of  JSIarch  4,  1917  (39  Stats.,  1171), 
pro%'iding  that  the  senior  officer  present  or 
other  commanding  officer  on  a  foreign  sta- 
tion may  be  authorized  by  the  Secretary  of 
the  Navy  to  order  boards  for  examination 
of  candidates  for  promotion  in  the  Navy 
and  Marine  Corps. 


Officers  who  fail  upon  examination  for  promo- 
tion by  reason  of  drunkenness  or  other  mis- 
_  conduct,  to  be  discharged  with  not  more 
than  one  year's  pay.  (Act  Aug.  5,  1882, 
22  Stat.,  286.) 

Officers  selected  for  promotion  to  the  grades  of 
commander,' captain,  and  rear  admiral  shall 
undergo  the  examinations  prescribed  by 
law  for  officers  promoted  by  senioritv. 
(Act  Aug.  29,  1916,  39  Stat.,  579.) 

Suspension  from  promotion  of  officers  failing 
professionally  upon  examination,  is  pro- 
\'ided  for  by  section  1505,  Re^'ised  Statutes, 
as  amended,  which  also  provides  for  the 
discharge  of  such  officers  failing  upon  reex- 
amination after  period  of  suspension. 

The  grade  of  commodore  on  the  active  list  of  the 
Navy  was  abolished  by  act  of  March  3, 
1899,  section  7  (30  Stat.,  1005).     See  note 


to  section  1362,  Revised  Statutes. 


711 


Sec.  1496. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Questions  of  law  arising  before  exam- 
ining board. — The  existing  regulations  with 
reference  to  examining  boards  provide  that 
"any  question  of  law  arising  before  the  board, 
*  *  *  shall  be  submitted  to  the  Judge  Ad- 
vocate General "  (see  Naval  Courts  and  Boards, 
see.  634).  \Miile  this,  no  doubt,  is  intended  to 
apply  to  specific  questions  arising  in  concrete 
cases,  it  is  quite  eA'ident  that  it  contemplates 
the  same  distinction  vrith  reference  to  ques- 
tions of  law  and  fact  arising  before  examining 
boards  as  is  made  by  the  department  with  ref- 
erence to  questions  of  law  and  fact  arising  before 
courts-martial ;  in  other  words,  that  while  ques- 
tions of  fact  are  properly  to  be  left  to  the  exclu- 
sive determination  of  the  board  in  the  first  in- 
stance, upon  questions  of  law  the  board  should 
ascertain  and  be  guided  by  the  decisions  of  the 
department,  opinions  of  law  officers  of  the  Gov- 
ernment, and  other  authorities  which  -ndll  be 
furnished  by  the  Judge  Advocate  General  when 
required.     (File  26521-179,  Feb.  19,  1917.) 

In  construing  laws  relating  to  the  naval  sei'v- 
ice,  the  board  \'rill  be  guided  by  the  consti-uc- 
ticn  placed  upon  them  by  the  Na^y  Depart- 
ment, and  will  not  qualify  its  recommendation 
by  any  proviso  concerning  the  legality  of  the 
department's  decisions.  (File  26260-3362,  Mar. 
21,  1916.) 

"Mental,"  "moral,"  and  "professional," 
defined  and  distinguished. — As  to  moral 
qualifications,  see  note  to  section  1456,  Re\ised 
Statutes. 

An  exact  definition  of  the  words  "mental, 
moral,  and  professional "  is  not  desirable  and 
should  not  be  attempted.  Such  a  definition 
would  likely  prove  defective  and  a  source  of 
embarrassment  in  the  future,  not  only  with 
reference  to  the  subject  matter  included  therein , 
but  also  in  respect  to  matters  of  exclusion. 
This  is  the  view  which  has  heretofore  been 
taken  by  the  department,  and  also  by  the 
courts  with  reference  to  similar  questions. 
(File  26521-179,  Feb.  19,  1917,  citing  file 
26260-1319,  Jime  29,  1911,  p.  10,  and  Swaim  v. 
V.  S.,  28  €t.  Cls.,  173.) 

With  reference  to  the  words  "mental  inca- 
pacity, "  as  used  in  connection  with  ci\'il  trans- 
actions, it  has  been  judicially  stated:  "No  clear 
and  definite  rule  can  be  laid  down,  defining 
mental  incapacity  *  *  *  which  will  apply 
m  all  cases  *  *  *  .  Each  case,  therefore, 
must,  to  a  certain  extent,  rest  upon  its  own 
peculiar  circumstances."  (File  26521-179,  Feb. 
19,  1917,  citing  Allen  v,  Allen,  64  Atl.,  1115.) 

With  reference  to  what  constitutes  mental, 
moral,  and  professional  incapacity  certain 
principles  have  been  settled  or  may  be  deduced 
from  the  law,  regulations,  and  precedents  which 
will  be  helpful  in  arriving  at  a  proper  conclusion. 
(File  26521-179,  Feb.  19,  1917.) 

"There  can  be  no  doubt  as  to  the  nature  of 
so  much  of  the  inquiry  as  regards  professional 
fitness  for  the  naval  service.  That  is  a  question 
of  specialty,  which  speaks  for  itself.  So  it  is  in 
the  matter  of  physical  condition,  which  is  the 
familiar  subject  of  the  pension  law.  But  the  law 
also  calls  for  investigation  of  mental  and  moral 
fitness  *  *  *  .  As  to  this  point,  there 
is  nothing  of  innovation,  or  contradiction  of  pre- 
existing law,  in  either  of  the  acts.  Qualities  of 
mind,  things  moral  as  distinguished  from  things 


physical,  not  only  courage,  promptitude,  effi- 
ciency, but  patriotism,  honor,  virtue,  and  the 
opposites  of  each,  as  cowardice,  negligence, 
insufficiency,  disaffection,  dissoluteness,  are  ex- 
pressly mentioned,  either  for  praise  or  blame, 
as  the  case  may  be,  in  the  rides  for  the  govern- 
ment of  the  Navy,"  (8  Op.  Atty.  Gen.,  337, 
352.) 

The  Na\'y  Regulations  draw  a  marked  dis- 
tinction between  "professional"  fitness  on  the 
one  hand,  and  "mental  and  moral"  fitness  on 
the  other. _  This  distinction  and  classification 
is  not  original  with  the  regulations,  for  as  early 
as  January  31,  1857,  the  Attorney  General,  in 
an  opinion  to  the  Secretary  of  the  Navy  (8  Op. 
Atty.  Gen.,  337,  352),  separated  "mental  and 
moral"  on  the  one  hand  from  "physical  and 
professional"  fitness  on  the  other.  (File 
26521-179,    Feb.  19,  1917.) 

The  Navy  Department's  precedents  are  in 
harmony  with  the  Attorney  General's  opinion 
(8  Op.  Atty.  Gen.,  337,  352),  in  which  "mental 
and  moral"  qualifications  are  grouped  and 
classified  together  as  "qualities  of  mind,  things 
moral  as  distinguished  from  things  physical." 
(File  26521-179,  Feb.  19,  1917.) 

The  so-called  "Naval  Efficiency  Act,"  ap- 
proved February  28,  1855  (10  Stat.,  616),  pro- 
vided in  part  for  the  separation  from  the  active 
service  of  officers  found  by  an  examining 
board  to  be  "incapable"  of  perfonning  their 
duties.  Instructions  were  issued  by  the  Sec- 
retary of  the  Navy  to  the  board  of  officers  to  the 
effect  that  "an  officer  may  be  'incapable,' 
either  mentally,  physically,  or  morally;  for 
although  he  may  possess  a  strong  mind  and 
robust  frame,  yet,  if  his  moral  perception  of 
right  and  wrong  be  so  blunted  and  debased  as 
to  render  him  unreliable,  he  could  hardly  be 
regarded  as  lieing  the  capable  officer,  to  be 
intrusted  with  the  lives  of  his  countrymen, 
and  the  property  and  honor  of  his  country." 
Here  the  department's  instructions  regarded 
"mental"  fitness  as  meaning  "possessing  a 
strong  mind,"  and  "moral "  fitness  as  implying 
a  correct  "perception  of  right  and  wrong."  In 
other  words,  these  instructions  classified 
"mental"  and  "moral"  qualifications  as 
"qualities  of  mind,"  the  same  as  did  the  sub- 
sequent opinion  of  the  Attorney  General  (8  Op. 
Atty.  Gen.,  337,  352).  These  instructions  of  the 
Secretary  of  the  Navy  were  upheld  by  the  At- 
torney General  December  10,  1856  (8  Op.  Atty. 
Gen.,  223,  233),  as  being  well  within  the  scope 
of  the  statute.  (File  26521-179,  Feb.  19,  1917. 
Note. — The  question  submitted  to  the  Attorney 
General  in  the  opinion  last  cited  was  whether, 
among  other  things,  "any  error  of  law  was  com- 
mitted by  the  Secretary  of  the  Navy,  in  his 
instructions  to  the  board  of  officers";  and  the 
Attorney  General  held  that  "no  error  of  law 
has  been  committed  on  which  to  base  claim  for 
the  reversal  of  the  finding  of  the  board  or  of  the 
approval  of  the  President,"  stating  in  the 
course  of  his  opinion  that,  as  compared  with  the 
letter  of  the  act,  the  instructions  seem  to  be 
not  enabling,  but  on  the  contrary  restrictive, 
so  as  to  caution  the  board  in  theii"  dealing  with 
moral,  as  distinguished  from  physical  or  mental 
inability  or  incompetency  to  perform,  promptly 
and  efficiently,  all  the  possible  duties  of  an 
officer  of  the  Navy.) 


712 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1496. 


The  law  requires  that  both  the  moral  and 
professional  fitness  be  established.  The  use 
of  both  words  suggests  that  the  moral  qualifica- 
tions to  be  shown  are  such  as  are  independent  of 
the  professional ;  those  qualities  which  may  exist 
and  yet  are  such  as  do  not  appear  in  a  purely 
professional  examination,  however  searching 
that  examination  may  be.  (File  29260-2969, 
June  12,  1915.) 

Clearly  the  written  examination  of  a  candi- 
date on  professional  subjects  goes  to  demon- 
strate his  professional  fitness,  and  a  failure  in 
any  professional  subject  inquired  into  on  the 
written  examination  is  a  professional  faUiue 
within  the  meaning  of  the  law.  It  is  only 
where  one  or  more  reports  on  fitness  which  are 
considered  by  the  examining  board  are  found 
to  be  so  unsatisfactory  that  the  board  for  that 
reason,  independent  of  the  ^vritten  examination, 
determines  that  an  officer  is  not  qualified  for 
promotion,  that  a  decision  must  be  made  as  to 
whether  his  disqualification  rests  on  moral  or 
professional  grounds.  (File  29260-2969,  June 
12,  1915.) 

It  is  recognized  that  the  line  of  demarcation 
between  professional  and  moral  fitness  in  some 
instances  is  not  clearly  di'awn,  either  by  law  or 
regulations,  and  that  consequently  confusion 
results  in  applying  a  uniform  standard  to  all 
cases  where  a  decision  must  be  made  as  to 
whether  the  chai'acter  of  the  reports  on  fitness 
of  the  candidate  establish  his  moral  or  pro- 
fessional imfitness  for  promotion.  Especially 
is  the  standard  a  varying  one  where  ofiicers 
appear  before  different  examining  boards.  It 
is  obvious  that  in  justice  to  the  service  no  offi- 
cer who  has  been  found  to  be  morally  disquali- 
fied to  be  promoted  should  be  continued  therein 
and  that  in  justice  to  the  officer,  no  summary 
severance  from  the  ser\"ice  should  be  made  on  the 
ground  of  moral  failure  when  the  disqualifica- 
tion is  in  fact  a  professional  one,  to  which  the 
law  attaches  a  less  severe  penalty  without  the 
stigma  which  attaches  in  the  fonner  case. 
(File  26260-2969,  June  12,  1915.) 

To  be  continued  in  the  commissioned  per- 
sonnel, one  must  be  "an  officer  and  a  gentle- 
man. ' '  The  standard  as  an  officer  to  which  one 
must  measure  is  a  professional  standard,  and 
the  test  usually  laid  down  is  a  written  examina- 
tion on  professional  subjects,  coupled  with  a 
satisfactory  professional  record.  The  standard 
as  a  gentleman  to  which  an  officer  must  measure 
is  nothing  more  or  less  tlian  the  standard  of  a 
gentleman  in  any  walk  of  life,  and  the  test  of 
moral  fitness  of  an  officer  is,  in  the  opinion  of 
the  department,  the  test  necessary  to  determine 
the  moral  fitness  of  one  purporting  to  be  a 
gentleman  who  is  not  in  the  naval  service. 
(File  29260-2969,  June  12, 1915.) 

"Moral"  may  be  defined  as  pertaining  to 
those  intentions  and  actions  on  which  right  and 
wrong,  virtue  and  vice,  are  predicated,  or  to  the 
rules  by  which  such  intentions  and  actions 
ought  to  be  directed;  "relating  to  the  practice, 
manners,  or  conduct  of  men  as  social  beings  in 
relation  to  each  other,  as  respects  right  and 
wrong,  so  far  as  they  are  properly  subject  to 
niles"  (citing  Webster's  Int.  Die).  Accepting 
this  definition  and  keeping  in  mind  that  the 
professional  examinations  cover  all  questions 
of  right  and  wrong  in  a  professional  sense,  we  find 


that  moral  fitness  in  the  sense  of  gentlemanly 
fitness  relates  "to  the  practice,  manners,  or 
conduct  of  men  as  social  beings  in  relation  to 
each  other,  as  respects  right  and  wrong  (in  a 
moral  as  distinguished  from  a  professional 
sense),  so  far  as  they  are  properly  subject  to 
rules"  (i.  e.,  so  far  as  they  are  subject  to  a 
recognized  or  established  moral  procedure). 
(File  29260-2969,  June  12, 1915.) 

A  qmte  clear  distinction  can  be  drawn 
between  professional  and  moi-al  qualifications. 
As  to  mental  qualifications,  the  distinction 
between  it  and  professional,  moral,  or  even 
physical  qualifications  is  far  more  difficult  of 
determination,  to  say  nothing  of  definition; 
and  it  seems  impossible  to  state  any  clear  line 
of  demarcation  between  them  that  will  cover 
all  cases,  inasmuch  as  the  term  "mental"  is 
broader  than  the  others  and  mavbe  included  in 
one  or  all  of  the  other  terms.  "(File  26521-179, 
Feb.  19, 1917.) 

Referring  to  the  board's  definition  of  mental 
fitness,  as  follows,  ' '  In  this  connection,  the  term 
refers  only  to  the  general  intelligence  of  the 
candidate  as  shown  in  his  written  examination, 
or  by  his  personal  attitude  and  bearing  before 
the  board,  or  by  his  record,"  it  is  hardly  con- 
sidered that  a  candidate's  "personal  attitude 
and  bearing  before  the  board  "  should  be  a  basis 
of  judgment  as  to  mental  qualifications,  unless 
accompanied  by  a  display  of  temperamental 
(qualities  properly  to  be  considered  as  affect- 
ing mental  or  other  qualifications.  Also  in  the 
same  definition  it  would  be  well  to  include 
impressions  gained  from  the  oral  examination. 
In  addition  also  to  the  "general  intelligence" 
of  a  candidate,  it  is  considered  that  his  mental 
qualifications  must  inchide  also  the  character, 
power,  and  qualities  of  his  mind  and  his  temper- 
amental qualities.  It  is  clear  that  mental  qual- 
ifications refer  essentially  to  temperamental 
qualities,  and  it  is  therefore  considered  that  the 
examples  of  professional  unfitness  cited  by  the 
board,  as  follows,  "Poor  judgment,  inaccuracy, 
slovenliness,  insubordination,  indolence,  unre- 
liability, captiousness,  lack  of  force,  lack  of 
initiative,  or  any  other  temperamental  unfit- 
ness which  in  civil  life  would  not  be  considered 
as  indicating  mental  abnormality  or  moral 
obliquity,"  might  well,  in  many  cases,  be  re- 
garded as  indicative  also  of  mental  unfitness. 
As  emphasized  before,  however,  each  case  must 
be  settled  on  its  own  particular  merits.  If  one 
or  more  of  these  traits  is  present  to  an  extent 
rendering  the  candidate,  in  the  opinion  of  the 
board,  professionally  unfit  for  promotion,  a 
complete  finding  would  seem  to  be  that  he  is 
morally,  but  not  mentally  or  professionally, 
qualified  for  promotion.  (File  26521-179,  Feb. 
19,  1917.) 

The  lack  of  proper  mental  or  moral  qualifica- 
tions may,  and  usually  does,  affect  an  officer's 
professional  or  physical  qualifications.  This  is 
best  sho^vn  by  the  fact  that  an  examination  of 
the  department's  records  for  a  period  of  24  years 
(1880-1904)  has  disclosed  only  a  few  isolated 
cases  in  which  an  officer  who  was  found  not 
mentally  qualified  for  promotion  was  reported 
at  the  same  time  to  possess  all  the  necessary 
professional,  moral,  and  physical  require- 
ments. The  almost  invariable  rule  has  been 
that  the  lack  of  the  necessary  mental  qualifica- 


713 


Sec.  1496. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


tions  is  coupled  with  other  deficiencies  and  it 
seems  aUogether  reasonable  that,  as  a  general 
thing,  this  should  be  the  case.  Nevertheless 
it  will  not  be  contended  that  lack  of  mental 
qualifications,  in  the  sense  of  the  statute,  can 
not  exist  independently  of  professional,  moral, 
or  physical  imfitness.  Otherwise  it  would  not 
have  been  nece^>sary  for  Congress  to  specify  all 
four  requirements  for  promotion  in  the  NaA^y  as 
it  has  done  for  more  than  50  years.  A  diseased 
brain,  although  properly  classified  as  physical 
unfitness,  would  seem  necessarily  to  be  accom- 
panied by  lack  of  the  mental,  moral,  or  profes- 
sional qualifications  for  promotion;  but  it  is  en- 
tirely possible  for  an  officer  to  be  mentally, 
morally,  or  professionally  unfitted  for  promo- 
tion without  disease  of  the  brain.  In  short,  as 
has  heretof(n-e  been  remarked  by  the  Judge  Ad- 
vocate General  in  a  similar  connection  (file 
26260-1319,  Jime  29,  1911),  "any  discussion  of 
the  question  whether  an  officer  can  be  morally 
imfit  for  promotion,  without  his  mental,  pro- 
fessional or  physical  qualifications  being  af- 
fected, however  interesting  it  may  be,  becomes 
purely  idle  and  academic  when  we  remember 
that  Congress  has  itself,  by  express  language  in 
the  act  of  April  21,  1864  (sec.  1496,  R.  S.),  pro- 
vided that  no  officer  shall  be  promoted  to  a 
higher  grade  until  his  moral,  as  well  as  his  men- 
tal, professional  and  physical  fitness,  shall  have 
been  established  to  the  satisfaction  of  the  board 
of  examining  officers."  (File  26521-179,  Feb. 
19,  1917.) 

Navy  department's  precedents. — ^The 
department's  precedents  in  which  the  ques- 
tion of  mental,  moral,  or  professional  fitness  is 
involved  may  be  cited  quite  as  much  to  indicate 
the  somewhat  varying  interpretation  of  what 
constitutes  mental  disqualifications  as  to  offer 
matter  fi-om  which  a  clear  definition  thereof 
may  be  deduced.  Incidentally,  they  confirm 
the  more  easily  marked  distinction  between 
professional  and  moral  disqualifications.  It  is 
believed  that  it  will  be  very  rare  when  accord- 
ing to  the  department's  \-iews  a  case  will  arise 
in  which  mental  unfitness  w^ould  not  be  coupled 
M-ith  professional,  moral,  or  physical  disquali- 
fications.    (File  26521-179,  Feb.  19,  1917.) 

The  following  precedents  are  quoted  from  the 
Secretary  of  the  Na\y's  letter  of  February  19, 
1917,  to  the  Naval  Examining  Board,  Navy 
Yard,  Washington,  D.  C.  (file  26521-179): 

MENTAL   QUALIFICATIONS. 

(a)  Commodore  WilUam  K,  Mayo,  examined 
for  promotion,  February  12,  1886.  Board  re- 
ported as  follows:  "The  candidate  having 
failed  to  establish  his  mental  fitness  in  all 
respects,  the  board  can  not  give  the  certificate 
reqiured  by  section  1504  R.  S.,  that  he  has  the 
mental,  moral,  and  professional  qualifications 
to  perform  efficiently  all  the  duties,  both  at  sea 
and  on  shore,  of  the  next  higher  grade,  and 
therefore  we  do  not  recommend  him  for  pro- 
motion." This  finding  was  adhered  to  by  the 
board  after  further  proceedings. 

Commodore  Mayo's  reports  on  fitness  con- 
tained among  other  things  the  following  un- 
favorable entries:  "The  general  impression 
seems  to  be  that  he  is  a  difficult  person  to  get 
along   harmoniously    with."     "While,  in  my 


opinion,  possessinp;  the  requisite  qualifications, 
I  am  afraid,  judging  from  my  personal  experi- 
ence with  him,  that  nis  temperament  and  dispo- 
sition are  such  as  would  miUtate  against  the 
chances  of  his  efficiency  and  usefulness  in  any 
position."  "His  mental  faculties  are  such  as 
to  qualify  him  for  promotion  but,  in  my  opinion, 
his  judgment  is  apt  to  be  warped  by  his  sus- 
picionsand  prejudices."  As  to  the  general 
reputation  of  the  candidate,  "it  is  that  of  a  man 
who,  by  his  suspicions  and  prejudices  makes  it 
exceedingly  un]>lea.sant  for  those  who  have  the 
misfortune  to  serve  with  him."  "In  my  judg- 
ment Commodore  Mayo  is  so  peculiarly  consti- 
tuted that  his  judgment  is  often  so  warped  by 
his  strong  prejudices  and  suspicions  as  to  unfit 
him  for  the  calm  consideration  and  solution  of 
important  questions  that  may  come  before  him. 
Holding  this  opinion  I  can  not  conscientiously 
think  him  a  fit  oflicer  to  perform  all  his  duties 
at  sea  in  a  higher  grade."  Other  matters  of 
record  related  to  "rudeness  in  speech,"  "dis- 
courtesy of  demeanor,"  "severity  and  harsh- 
ness," etc.  Fifteen  specific  cases  of  complaint 
against  Commodore  Mayo  were  given  thorough 
consideration  by  the  board .  Referring  to  these 
cases  the  board  stated  in  its  first  report: 

"Any  one  of  the  foregoing  cases,  taken  by 
itself,  might  be  considered  as  of  minor  impor- 
tance and  as  exhibiting  on  the  part  of  Commo- 
dore Mayo  a  mere  error  of  judgment,  which  all 
men  are,  at  one  time  or  another,  liable  to  fall 
into.  But,  aggregated,  they  indicate  unmis- 
takably a  habit  and  condition  of  mind  the  mani- 
festation of  which,  in  a  commanding  officer,  is 
demoralizing  in  its  tendency  and  subversive  of 
discipline.  If,  while  in  command  of  a  shore 
station,  and  under  the  restraining  influences  of 
the  Navy  Department,  Commodore  Mayo  has 
displayed  such  mental  peculiarities  as  are 
shown  by  the  evidence,  the  board  is  forced  to 
the  conclusion  that  he  ought  not  to  be  intrusted 
with  the  duties  and  responstbili ties  inseparable 
from  a  command  in  foreign  waters. ' ' 

In  its  second  report  the  board  stated: 

' '  In  the  several  citations  made  the  candidate 
claims  that  he  was  acting  in  the  interest  of  dis- 
cipline— while  the  board  considers  the  major- 
ity of  those  acts  to  be  subversive  of  discipline. 
And  it  is  this  failure  on  the  part  of  the  candi- 
date, even  after  a  deliberate  "view  of  his  case — 
assisted  as  he  was  by  able  counsel  and  expert 
ad\ice — ^to  apprehend  the  true  direction  to 
which  the  whole  mass  of  the  documentary  evi- 
dence points— that  furnishes  the  strongest  cor- 
roborative evidence  of  the  candidate's  imper- 
fect ideas  in  regard  to  discipline,  and  adds  to 
the  proof  of  his  incapacity  to  exercise  at  all 
times  the  discretion  looked  for  in  a  comman- 
dant." 

No  action  was  taken  by  the  President  upon 
the  record  of  the  board's  finding,  as  the  case 
was  disposed  of  by  the  retirement  of  Commo- 
dore Mayo  upon  his  own  application  after  40 
years'  ser^ice,  under  section  1443,  Re\ised 
Statutes. 

(6)  Asst.  Surg.  Frederick  Joaquin  Barbosa 
Cordeiro,  examined  for  promotion,  July  23, 
1887.     Board  reported  as  follows: 

"The  board,  after  carefully  considering  all 
the  evidence  in  the  case  of  the  candidate,  in- 
cluding his  single  testimonial,  the  records  on 


714 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1496. 


file  at  the  Navy  Department,  the  interroga- 
tories addressed  to  various  naval  officers  and 
the  answers  thereto,  and  the  letter  and  state- 
ment of  the  candidate,  all  of  wliich,  including 
copies  of  the  records  on  file  at  the  department, 
are  hereunto  appended,  concluded  the  exam- 
ination of  the  candidate,  and  decided  that  the 
mental  fitness  of  the  candidate  to  perform  all 
his  duties,  at  sea  and  on  shore,  has  not  been 
established  to  the  satisfaction  of  the  board; 
therefore  we  certify  that  Asst.  Surg.  Fi'ederick 
Joaquin  Barbosa  Cordeiro,  United  States  Navy, 
does  not  possess  the  mental  qualifications  to 
perform  efficiently,  at  sea  and  on  shore,  all  the 
duties  of  the  gi'ade  to  which  he  seeks  promotion. 

"The  board  are  led  to  the  above  conclusion 
by  the  e^idence  hereunto  appended,  which 
establishes  clearly  to  their  minds  the  fact  that 
Asst.  Surg.  Frederick  Joaquin  Barbosa  Cor- 
deiro, United  States  NaAy%  has  an  insubordi- 
nate disposition  and  is  therefore  lacking  in  one 
of  the  most  essential  qualifications  of  an  officer 
of  the  NavJ^  In  view  of  this  fact  we  do  not 
recommend  him  for  promotion." 

The  board  reassembled  November  10,  1887, 
pursuant  to  orders,  and  fm-ther  examined  the 
candidate.  December  22,  1887,  the  board 
completed  its  proceedings  and  reported  that  it 

"Decided  that  the  candidate  has  exhibited 
professional  qualifications  as  well  as  literary 
and  scientific  attainments  of  more  than  the 
average  excellence  and  that  his  moral  fitness 
has  also  been  establislied  to  the  satisfaction  of 
the  boai'd,  but  that  his  mental  fitness  for  pro- 
motion has  not  been  so  estalilished. 

"After  carefully  reviewing  the  subject  of 
the  mental  fitness  of  the  candidate  for  pro- 
motion the  board  see  no  reason  to  change  their 
opinion  as  expressed  in  their  report  made 
July  23, 1887.  The  board  arrived  at  this  conclu- 
sion for  the  reasons  that  the  candidate  has  failed 
to  present  any  favoral^Ie  testimony  or  letter 
from  any  senior  medical  officer  with  whom  he 
has  served  since  he  has  been  in  the  service,  that 
two  of  these  officers  have  pronounced  him  unfit 
for  promotion,  that  the  records  on  file  at  the 
Navy  Depaitment  contain  opinions  from  the 
Singeon  General  and  from  Rear  Admiral  L. 
A.  Kimberly,  United  States  Navy,  of  the  same 
nature,  and  that  the  service  would  be  benefited 
by  his  resignation,  and  that  he  has  been 
severely  reprimanded  by  the  Secretary  of  the 
Navy.  The  board  _  also  consider  that  the 
answers  to  10  of  the  interrogatories  are  unfavor- 
able to  the  candidate  as  contributing  to  the 
evidence  exhibiting  his  mental  tendency  as 
insubordinate  and  unduly  self-asserting,  that 
four- — at  least  are  negative,  and  that  the  rest, 
while  in  his  favor,  are  chiefly  from  officers  with 
whom  his  association  on  duty  has  been  indirect, 
seven  of  them  having  had  no  association  with 
him  on  duty  at  all. 

"The  board  do  not  consider  the  testimony 
sufficient  to  prove  any  defect  in  the  moral 
character  of  the  candidate,  although  his  action 
in  showing  the  Medical  Journal  ta  Ensign  Dent 
without  first  obtaining  the  consent  of  Surgeon 
Kidder,  his  statement  as  to  the  time  he  spent 
before  the  board  of  investigation  at  the  Boston 
Na\y  Yard,  'about  one  minute,'  and  his  esti- 
mate of  the  time  necessary  to  obtain  a  medical 
officer's   presence   at  the   dispensary   at   the 


Boston  Navy  Yard  when  the  latter  was  on  board 
the  receiving  ship  at  that  place,  'six  minutes,' 
both  of  wMch  periods  are  manifestly  under- 
estimates and  his  accusation,  in  his  defense, 
against  Lieut.  Nazro  of  being  influenced  by 
unworthy  motives  in  answering  the  interroga- 
tories as  he  did,  would  seem  to  indicate  a  feeble 
moral  sense,  Ixit  the  board  prefer  to  regard  these 
points  as  additional  evidence  of  his  mental 
unfitness  for  promotion. 

"The  candidate  seems  to  have  been  on  terms 
of  hostility  with  two  out  of  three  medical  officers 
to  whom  he  has  been  subordinate  since  hia 
entry  into  the  service.  The  testimony  in 
these  cases,  although  somewhat  conflicting  in 
some  respects,  nevertheless  leads  the  board  to 
the  opinion  that  he  has  been  guilty  of  insubor- 
dination and  disrespect,  and  the  board  are  well 
satisfied  that  harmony  and  concert  of  action, 
so  desirable  for  the  benefit  of  the  service,  did 
not  exist  in  the  medical  departments  of  the 
Boston  Navy  Yard  and  of  the  U.  S.  S.  Pow- 
hatan, owing  to  the  mental' inability  of  the 
candidate  to  fully  appreciate  his  position  as  a 
junior  officer  and  his  disregard  of  the  opinions 
of  his  seniors. 

"The  full  tenor  of  his  defensive  argument  is 
to  the  effect  that  he  has  been  misrepresented 
in  eveiy  instance,  and  that  in  every  instance 
he  has  been  the  victim  of  unjust  animus,  prej- 
udice, or  absolute  falsehood. 

"  In  examining  the  testimony  of  those  officers 
who  have  reported  against  either  his  mental  or 
professional  fitness,  the  board  have  been  unable 
to  detect  any  animus  of  an  unjust  nature  against 
him,  and  beUeve  that  such  animus  existed 
only  in  the  imagination  of  the  candidate. 
These  animadversions  in  his  defense  in  the 
opinion  of  the  board  are  still  further  evidence 
of  the  disqualifying  condition  of  the  mental 
constitution  of  the  candidate. 

"The  plea  of  ignorance  of  the  customs  of 
the  service,  on  the  part  of  the  candidate  is 
insufficient  to  account  for  all  the  trouble  he  has 
given  those  in  authority  over  him,  since  all 
young  medical  officers,  uijon  entering  the 
service,  must  have  labored  under  the  same 
disadvantage,  and  yet  it  is  a  very  uncommon 
tiling  to  hear  of  such  curious  complaints  against 
them  as  those  made  against  the  candidate. 

"The  candidate,  in  the  opinion  of  the  board, 
although  possessing  a  high  grade  of  information 
and  accomplishment  as  a  physician  is  unques- 
tionably too  vain  of  his  attainments,  and  is 
unwilling  to  give  others  credit  for  whatever 
proficiency  they  may  possess.  This  defect  in 
his  mental  constitution  in  civil  life  might  be 
of  small  moment,  but  the  board  considers  it  a 
grave  defect  in  one  belonging  to  the  service, 
since  it  could  only  result  in  destruction  of 
harmony  and  scandalous  conflict  in  a  depart- 
ment in  which  all  personal  considerations 
should  subordinate  themselves  to  the  endeavor 
to  do  all  things  for  the  benefit  of  the  sick  and 
for  the  best  interests  of  the  service. 

"In  conclusion,  the  board  do  not  believe  that 
the  interests  of  the  service  would  be  subserved, 
by  the  promotion  of  the  candiadate,  and  there- 
fore they  do  not  recommend  Asst.  Surg.  Fred- 
erick Joaquin  Barbosa  Cordeiro,  United  States 
Navy,  for  promotion." 


54G41''— 22- 


■46 


716 


Sec.  1496. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


The  President's  action  in  this  case,  June  15, 
ISSS,  was  as  follows: 

''A  case  is  here  presented  of  a  medical  officer, 
concededly  of  unusual  skill  and  attainments, 
held  unlit  for  promotion  for  no  established 
neglect  of  duty  or  anythinji;  else  more  substan- 
tial (so  far  as  facts  are  developed),  than  in- 
stances of  disrespect  or  insubordination  which 
are  almost  frivolous.  This  officer  is  not  the 
morft  agreeable  man  in  the  Navy  in  his  inter- 
course ^vith  his  superiors,  but  he  should  not  be 
denied  promotion  for  that;  he  has  probably 
very  high  ideas  of  his  ability  and  perhaps  is 
dogmatic;  but  these  things,  while  disagreeable, 
may  exist  in  a  man  to  whom  it  would  be  very 
unjust  to  deny  promotion. 

"Besides  all  this,  I  am  perfectly  satisfied  that 
everj^tliing  stated  in  the  foregoing  abstracts 
that  has  caused  unliappiness  to  the  applicant's 
superior  officers  miijht  have  been  avoided  if 
they  themselves  had  exercised  a  little  tolerance 
and  forbearance. 

"I  can  not  approve  the  findings  of  the  board 
in  this  case. ' ' 

(c)  Pay  Insp.  John  H.  Stevenson,  examined 
for  promotion  to  pay  director.  Board  reported 
as  follows: 

' '  We  are  satisfied  as  to  the  professional  abili- 
ties of  the  candidate.  His  methods  of  business 
are  shown  by  the  e\ddence  to  have  been  loose, 
reckless,  regardless  of  law,  and  defiant  of  orders, 
but  we  believe  his  conduct  is  not  sho\vn  to  have 
been  influenced  by  a  desire  for  personal  profit, 
but  that,  from  mental  peculiarities  or  tempem- 
ment,  his  moral  sense  of  the  obligations  of  law, 
orders,  and  regulations  is  so  obtunded  as  to 
render  him  imfit  to  conduct  the  important 
duties  which  pertain  to  the  grade  in  the  Navy 
to  which  he  is  a  candidate  for  promotion.  In 
this  sense  we  consider  him,  as  stated  below, 
morally  unfit  for  promotion.  We  therefore 
decide  that  the  professional  fitness  of  the  can- 
didate to  perform  the  duties  of  a  naval  officer  at 
sea  and  on  shore  in  the  next  higher  grade  has 
been  established,  but  not  the  mental  and  moral 
fitness,  and  we  therefore  do  not  recommend 
him  for  promotion." 

The  proceedings  and  finding  of  the  examining 
board  m  the  above  case  of  Pay  Insp.  Stevenson 
were  approved  by  the  President  September 
25,  1893. 

(<f)  Asst.  Paymaster  S.  J.  Semmes,  exam- 
ined for  promotion  February  4,  1898,  Foimd 
mentally,  morally,  and  professionally  qualified. 
Finding  disapproved  by  the  President,  and 
the  case  ordered  before  another  board,  which 
found  the  candidate  professionally,  but  not 
mentally  or  morally  qualified.  Record  re- 
turned Ijy  the  department  with  instructions, 
among  others,  that  the  board  "'place  upon  re- 
cord whatever  matter,  in  its  opinion,  tends  to 
disqualify  the  candidate  mentally  for  promo- 
tion." Pursuant  to  these  instructions,  the 
board  caused  the  following  entry  to  be  made  in 
the  record: 

"In  the  matter  of  the  previous  finding  of  the 
board,  that  the  candidate  was  mentally  dis- 
qualified for  promotion,  the  board  wishes  to 
state  that  it  was  then  and  still  is  of  the  opinion 
that  the  habits  of  Asst.  Paymaster  Semmes 
mentally  disqualify  him,  and  further  that  the 
transaction  of  the  check,  as  shown  on  page  5  of 


the  candidate's  affidavit,  appended  and  marked 
'H,'  exhibits  a  mental  obliquity  and  apparent 
inability  to  see  that,  in  cashing  that  check  him- 
self, as  he  stated  he  did,  he  used  Government 
funds  for  his  own  purposes  in  a  manner  which 
it  is  deemed  shows  want  of  moral  and  mental 
sense." 

The  Judge  Advocate  General  in  his  review 
of  the  above  case  made  the  following  remarks: 

"It  is  noted  that  the  board  finds  Mr.  Semmes 
mentally  disqualified  for  promotion,  stating 
that  in  its  opinion  his  habits  'mentally  dis- 
qualify him,'  and  also  that  *  he  exhibits  a  men- 
tal oblifjuity  and  apparent  inability  to  see  that, 
in  cashing '  his  personal  check  out  of  the  funds 
in  his  possession  as  paymaster,  'he  used  Gov- 
ernment funds  for  his  own  purposes  in  a  man- 
ner which  it  is  deemed  shows  want  of  moral  and 
mental  sense,'  and  yet  finds  him  professionally 
qualified  for  promotion.  Although  somewhat 
peculiarly  expressed,  the  adverse  piu^ort  of 
this  finding  is  sufficiently  clear. 

"A  careful  examination  of  the  record  does 
not,  in  my  judgment,  disclose  any  evidence 
whatever  showing  that  Mr.  Semmes  was  guilty 
of  dishonest  conduct,  but  it  does  exhibit,  first, 
a  carelessness  in  handling  his  accounts  that  is 
inexcusable  in  an  oIHcer  whose  duties  demand 
the  greatest  care  and  exactness;  and,  second, 
that  he  is  addicted  to  habits  of  intemperance  to 
such  a  degree  as  to  unfit  him  for  efficient  servdce 
as  an  officer  of  the  Navy." 

No  action  was  taken  by  the  President  upon 
the  record  in  the  above  case,  as  the  matter  was 
disposed  of  by  the  candidate's  resignation  from 
the  service. 

MORAL   QUALIFICATIONS. 

(e)  Passed  Asst.  Pajrmaster  Louis  A.  Yorke, 
examined  for  promotion  December  14.  1886. 
Foimd  mentally,  but  not  professionally  or 
morally  qualified.  The  e^ddence  upon  which 
the  boai'd  based  its  finding  that  he  was  not 
morally  qualified  for  promotion  consisted  prin- 
cipally of  "'several  complaints  wliich  had  been 
made  against  him  to  the  department,  consisting 
of  alleged  indebtedness  to  individuals,  and  of 
neglect,  refusal,  or  evasion  to  pay  the  same." 
Finding  approved  by  the  President,  Febru- 
ary 19, 1887. 

ij)  Boatswain  Louis  W.  Sopp,  examined 
March  1,  1906.  Found  that  he  had  "  the  mental 
and  professional,  but  not  the  moral  qualifica- 
tions, by  reason  of  his  failure  to  pay  his  debts, 
which  is  a  result  of  his  own  misconduct,  to  per- 
form efficiently  all  his  duties,  both  at  sea  and 
on  shore,  of  the  grade  to  which  he  is  to  be  pro- 
moted." The  Secretaiy  of  the  Navy  recom- 
mended aj^proval  by  the  President,  April  9, 
1906,  stating  in  part:  "Persistent  failure,  with- 
out adequate  cause,  to  meet  just  pecuniary 
obligations  is  regarded  as  a  proper  basis  for  a 
finding  of  moral  disqualification  *  *  *.  In 
all  the  cases  above  mentioned  payment  was 
unduly  delayed  *  *  *;  and  in  some  in- 
stances promises  of  prompt  payment  appear  to 
have  been  lightly  broken.  Such  conduct  as 
that  of  JMr.  Sopp  in  these  matters  can  not  but 
bring  discredit  upon  the  service,  both  at  home 
and  abroad,  and  it  shows,  in  the  judgment  of 
the  department,  that  the  offender  is  out  of 
place  as  an  officer  in  the  Navy."      Finding 


716 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1406. 


of  board  approved  by  the  President  April  10, 
1906. 

{g)  Gunner  George  L.  Maller^^  examined 
October  12,  1904.  Found  mentally  and  pro- 
fessionally, but  not  morally  qualified,  "by 
reason  of  failure  to  pay  his  just  debts,  which 
is  the  result  of  his  own  misconduct."  Finding 
approved  by  the  President. 

(h)  Lieut.  Robert  H.  Osborne,  examined 
June  9,  1908.  Found  mentally  but  not  morally 
or  professionally  qualified,  his  moral  failure 
being  due  to  indifference  in  contracting  finan- 
cial obligations  which  he  was  unable  to  dis- 
charge. Upon  reconsideration,  the  board 
reported : 

"The  board  respectfully  adheres  to  its 
original  decision,  and  in  doing  so  respectfully 
invites  attention  to  the  fact  that  the  deficiency 
found  in  moral  qualifications  was  not  the  faihu'e 
of  Lieut.  Osborne  to  pay  the  debt  owed  Mr. 
W.  E.  Rouse  as  such,  but  his  failure  to  keep  his 
written  promise  to  pay  in  a  certain  time  and 
method,  his  failure  to  show  any  practical  reason 
for  such  neglect  of  his  promise,  and  his  failure 
to  meet  his  obligations  in  the  sense  of  making 
any  arrangement  with  his  creditor  after  the 
matter  had  been  brought  to  his  attention  by  the 
department.  In  the  opinion  of  the  board  such 
absolute  neglect  and  indifference  to  his  obliga- 
tions and  to  his  promise  show  a  standard  of 
morals  below  that  which  should  be  required  of 
naval  officers."  Finding  approved  by  the 
President,  July  3,  1908. 

(i)  Boatswain  Alfred  H.  Hewson,  examined 
May  3,  1909.  Board  found:  "That  Boatswain 
Alfred  H.  Hewson,  United  States  Na^^yr,  j^as 
the  mental,  but  not  the  moral  nor  the  pro- 
fessional qualifications,  to  perform  efficiently 
all  the  duties,  both  at  sea  and  on  shore,  of  the 
grade  to  which  he  is  to  be  promoted,  and  do  not 
recommend  him  for  promotion."  The  Acting 
Secretaiy  of  the  Navy,  May  17,  1909,  recom- 
mended approval  of  the  board's  finding, 
stating  as  follows:  "Upon  reviewing  the  case 
it  appears  that  Mr.  Hewson  has  been  habitually 
intemperate  and  that  he  has  shown  a  lack  of 
proper  officer-like  appreciation  in  his  methods 
of  dealing  with  his  financial  affairs. "  Finding 
approved  by  the  President. 

{))  Gunner  Edmund  DuB.  Gould,  examined 
April  4.  1908.  Found  mentally  but  not  pro- 
fessionally qualified,  and  from  the  unfavorable 
evidence  before  it  the  boai'd  was  not  satisfied 
a3  to  his  moral  fitness  and  did  not  recommend 
him  for  promotion.  Upon  a  second  appearance 
before  an  examining  board  it  was  found  that  he 
had  the  mental,  but  not  the  moral  and  pro- 
fessional qualifications,  by  reason  of  his  failure 
to  pay  his  debts,  and  not  making  the  percentage 
necessary  to  qualify,  and  he  was  not  recom- 
mended for  promotion.  The  Secretary  of  the 
Navy  recommended  approval  of  the  board's 
finding,  stating  in  part:  "From  a  review  of  the 
record  of  proceedings  of  the  Naval  Examining 
Board,  it  would  appear  that  this  officer  has 
persistently  neglected  to  pay  his  deists,  that 
he  has  failed  to  reply  to  communications  ad- 
dressed to  him  officially  upon  these  matters, 
and  that  he  has  failed  to  make  any  satisfactoiy 
explanation  or  excuse  for  his  delinquencies  in 
the  above  particulars."  The  boai'd's  finding 
was  approved  by  the  President. 


{Tc)  Passed  Asst.  Paymaster  Edwin  B.  Web- 
ster, examined  Januaiy  6,  1898.  The  board 
reported  as  follows: 

"  The  board  decided  that  Passed  Asst.  Pay- 
master Edwin  B .  Webster,  United  States  Na\y, 
has  the  mental  and  professional,  but  not  the 
moral  qualifications,  by  reason  of  the  facts 
mentioned  in  the  charges  formulated  by  the 
board  from  the  record,  which  are  a  result  of  his 
own  misconduct,  to  perform  efficiently  all  his 
duties,  both  at  sea  and  on  shore,  of  the  grade  to 
which  he  is  to  be  promoted,  and  do  not  recom- 
mend him  for  promotion. " 

The  charges  formulated  by  the  board  were 
as  follows:  "First.  Habits  of  gambling,  as  in- 
dicated l)y  the  letter  of  F.  L.  Crompton,  of 
Shanghai,  China,  dated  July  26,  1897.  Sec- 
ond. Carelessness  in  the  settlement  of  debts, 
as  indicated  by  the  correspondence  between 
the  candidate  and  his  creditors,  and  the  Navy 
Department.  Third.  Transactions  of  the  can-' 
didate  chai'acterized  as  'disgraceful,'  and 
'scajadalous'  by  the  Secretary  of  the  Na\y,  and 
published  in  General  Court-Martial  Order  No. 
76,  dated  July  28,  1896."  The  finding  of  the 
board  was  approved  by  the  President. 

(l)  Commander  George  W.  Wood,  examined 
June  29,  1893.  Board  reported:  "By  reason 
of  the  facts  adduced  by  the  eAddence  as  to  his 
habits  of  drunkenness,  and  the  contracting  of 
debts  beyond  his  means,  and  neglect  of  cred- 
itors, since  his  last  promotion,  we  find  that 
Commander  Wood  is  morally  unfit  for  promo- 
tion to  the  next  higher  grade  *  *  *  We 
hereby  certify  that  Commander  George  W.Wood, 
United  States  Navy,  has  the  mental,  but  not 
the  moral  and  professional  qualifications,  to 
perform  efficiently  all  thff  duties,  both  at  sea 
and  on  shore,  of  the  next  higher  grade,  and  do 
not  recommend  him  for  promotion.  "  Board's 
finding  approved. 

{m)  In  a  case  more  recent  than  those  noted 
above  the  candidate  was  found  not  morally 
qualified  for  promotion,  the  board  in  its  report 
June  21,  1911,  stating  in  part: 

"After  duly  deliberating  on  all  the  matters 
herein  referred  to,  the  board  believes  that  the 
candidate  did  not  use  his  utmost  exertions 
toward  liquidating  his  debts  as  quickly  as 
possible,  but  that  from  the  contraction  of  the 
ffi'st  debts  to  the  payment  of  the  last  one,  June 
14,  1911,  he  has  sho\\Ti  a  degree  of  moral  tur- 
pitude which  unfits  him  for  promotion." 

The  Secretary  of  the  Navy  recommended 
approval  of  the  boai'd's  finding.  President 
Taft's  decision  in  the  case  was  as  follows: 

"I  am  not  satisfied  from  the  showing  made 
that  Lieutenant  Burt's  character  has  been 
shown  to  be  such  as  to  unfit  him  morally  for 
promotion.  Of  course,  the  failure  to  pay 
debts  and  the  cu'cumstances  under  which  the 
debts  were  contracted,  when  their  payment  is 
postponed  or  neglected,  may  constitute  con- 
duct unbecoming  an  officer.  But  here  the 
debts  have  been  paid;  and  thej^  were  not  so 
great  in  amount  or  so  many  as  to  indicate  utter 
recklessness  when  it  is  considered  that  Lieu- 
tenant Burt  is  a  married  man  and,  neces- 
sarily, had  the  expense  of  a  family  upon  him 
in  addition  to  that  attendant  upon  his  sea 
service;  I  am  bound  to  say  that  the  specifica- 
tions which  were  handed  to  me  as  to  the  im- 


717 


Sec.  1496. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


morality  involved  iu  his  relation  to  debts 
eeom  to  be,  many  of  them,  strained,  and  I 
can  not  think  that  it  is  just  to  eliminate  him 
from  the  naval  service  for  such  delinqucncv. " 
(File  26260-1392:15,  Jan.  2,  1912.) 

In  connection  with  moral  qualifications,  see 
also  note  to  section  1456,  Revised  Statutes. 

PROFESSIONAL    QUALIFICATIONS. 

{n)  Machinist  Martin  M.  Schreiber,  exam- 
ined May  17,  1909;  found  morally  and  profes- 
sionally but  not  mentally  qualified  for  promo- 
tion. The  record  in  tliis  case  was  retm-ned  to 
the  boai'd  with  the  following  remarks: 

"The  board  is  directed  to  reconsider  this 
record,  keeping  in  mind  the  fact  that  the  educa- 
tional qualifications  of  the  candidate  should  be 
considered  under  the  head  of  the  professional 
qualifications,  and  that  after  considering  his 
professional  and  educational  qualifications  to- 
gether, they  will  report  as  to  whether  or  not  he  is 
professionally  qualified.  "     (File  26260-438.) 

On  revision  the  board  found  the  candidate 
morally  qualified,  "but  because  of  the  chai'acter 
of  his  answers  to  the  wiitten  examination,  and 
the  lack  of  knowledge  shown  throughout  his 
paper,  that  hia  mental  and  professional  fitness 
is  not  estal>lished,  this  despite  the  candidate's 
excellent  reports  of  fitness."  Finding  ap- 
proved by  the  President. 

(o)  Boatswain  Edward  Allen,  examined 
October  28,  1908;  found  morally  and  profession- 
ally but  not  mentally  qualified,  owing  to  his 
lack  of  knowledge  of  the  English  language, 
orthography,  punctuation,  etc.,  and  because  a 
perusal  of  his  papers  shows  a  marked  degree  of 
illiteracy.  The  record  was  returned  to  the 
board  with  the  following  remarks: 

"After  careful  consideration  of  the  matter 
the  record  of  proceedings  is  retmiied  to  the 
boiird  with  the  information  that  the  department 
regards  the  above-mentioned  disqualifications  as 
constituting  part  of  the  professional  examina- 
tion, and  not  as  exhibiting  mental  deficiency." 

On  revision  the  board  found  the  candidate 
morally  and  mentally,  but  not  professionally, 
qualified.     Finding  approved  by  the  President. 

Consideration  by  board  of  court-martial 
proceedings. — As  early  as  1897  the  specific 
question  [right  of  examining  board  to  consider 
court-martial  proceedings  against  candidate] 
was  raised  and  decided  by  the  department. 
In  that  case  an  examining  board  treated  "as 
closed "  certain  matters  brought  to  its  atten- 
tion for  wiiich  the  candidate  had  been  tried  by 
court-martial.  The  decision  in  that  case  em- 
bodied the  following  statement:  "The  fact 
that  a  case  has  been  finally  acted  upon  by 
the  liighest  authority,  or  that  no  action  what- 
ever has  been  taken,  does  not  close  that  por- 
tion of  the  officer's  record  to  wliich  it  relates 
in  such  a  manner  as  to  relieve  an  examining 
board  from  the  responsibility  of  scrutinizing  it. 
Wliere  an  officer's  record  is  found  not  good,  it 
seems  *  *  *  then  to  become  the  espe- 
cial duty  of  the  board  to  make  a  thorough  and 
exhaustive  examination."  (File  5878-97.) 
The  same  question  has  been  judicially  decided 
in  accordance  with  the  Navy  Department's 
precedents  and  practice,  ^^'ith  reference  to 
the    authority    of    an    examining    board    to 


consider  the  proceedings  of  a  court-martial 
and  other  facts  shown  by  the  officer's  record 
bearing  upon  his  moral  fitness  for  promotion, 
the  court  iu  the  case  of  Davis  v.  United  States 
(24  Ct.  (Jls.,  442)  said:  "The  board  was 
charged  with  the  duty  of  examining  into  hia 
mental,  moral,  and  professional  qualifications 
for  advancement.  WhaA  better  evidence 
could  it  have  of  these  qualifications  than  the 
candidate's  actual  career  in  his  then  grade? 
It  was  natural  and  proper  for  the  board  to 
look  into  his  record.  If  a  good  officer  he 
would  proudly  rely  upon  it  and  demand  its 
examination  as  a  right."  In  1911  the  question 
was  again  considered  by  the  department  (file 
26260-1392,  26260-697,  June  29,  1911,  p.  17), 
and  it  was  held:  "The  question  of  an  officer's 
amenability  to  trial  by  court-martial  for 
acts  affecting  his  moral  fitness  can  not  *  *  * 
have  any  bearing  upon  the  question  now  under 
consideration.  For  should  the  officer  be  so 
tried  and  convicted,  or  even  acquitted,  by 
court-martial,  an  examining  board  would  still 
have  the  duty  cast  upon  it  by  express  provi- 
sions of  law,  of  examining  iuXa  the  facts  and 
outcome  of  such  trial,  in  order  to  determine 
for  itself  the  effect,  if  any,  that  should  be  given 
thereto  with  reference  to  the  officer's  qualifi- 
cations for  promotion  in  the  Navy."  Accord- 
ingly, when  an  officer  is  examined  for  promo- 
tion, all  papers  relating  to  his  service  since  the 
last  examination  whereby  he  was  promoted,  in- 
cluding the  complete  record  of  the  officer's 
trial  by  court-martial,  where  he  has  been  so 
tried,  are  sent  to  the  examining  board  by  the 
department,  and  it  is  the  duty  of  the  board  to 
review  all  the  papers  so  furnished  and  deter- 
mine whether  or  not  in  the  members'  own 
minds  the  ofiicer  has  the  mental,  moril,  and 
professional  qualifications  for  promotion  to 
the  next  higher  grade  In  a  case  v/here  the 
officer  has  been  tried  by  court-martial,  were 
the  examining  board  bound  by  the  result  at 
which  the  court  had  arrived,  it  would  be  unnec- 
essary to  forward  the  entire  record  of  the  trial,  as 
merely  the  findings  of  the  court  would  be  suf- 
ficient. But  the  law  specifically  empowers 
the  examining  board  "to  examine  into  all 
matters  on  the  files  and  records  of  the  Navy 
Department"  relating  to  the  service  of 
the  officer  since  the  last  examination  whereby 
he  was  promoted  (sec.  1499,  R.  S.,  as  amended), 
and  requires  that  the  whole  record  and  finding 
of  the  board,  together  with  "any  matter  on  the 
files  and  records  of  the  Navy  Department, 
toucMng  each  case,"  shall  be  presented  to  the 
President  for  his  approval  or  disapproval  of 
the  finding  (sec.  1502,  R.  S.).  It  follows 
that,  regardless  of  the  finding  which  may  have 
been  reached  by  a  court-martial,  the  entire 
record  and  all  evidence  which  it  contains, 
concerning  the  service  of  the  candidate  since 
the  last  examination  whereby  he  was  promoted, 
must  be  considered  by  the  board,  and  that 
no  member  is  justified  in  recommending  the 
candidate's  promotion  unless,  in  his  own 
opinion,  the  officer  is  qualified  therefor.  (File 
26260-3342  :  1,  Mar.  27,  1916.) 

It  is  the  province  of  the  board  to  find  the 
candidate  either  morally  qualified  or  not  mor- 
ally qualified  for  promotion;  the  board's  find- 
ing must,  however,  under  the  law,  express  the 


Y18 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1496. 


opinion  which  the  members  themselves  enter- 
tain, and  a  finding  which  states  that  the  candi- 
date is  morally  qualified  for  promotion,  not 
because  the  board  so  believes  but  because  the 
board  feels  itself  bound  by  the  opinion  which 
it  attributes  to  others,  is  in  law  no  finding  at 
all.     (File  26260-3342  :  1,  Apr.  7,  1916.) 

In  its  first  action  in  this  case  the  board  stated 
in  effect  that  "no  matter  what  its  personal 
feelings  may  be,"  it  found  the  candidate  mor- 
ally qualified  for  promotion  because  the  mem- 
bers of  a  court-martial  had  acquitted  him  of  the 
serious  offenses  with  which  he  had  been  charged , 
and  the  board  "has  not  the  power  to  ques- 
tion the  findings  of  said  board."  The  depart- 
ment returned  the  record,  instructing  the 
board  that  no  "member  is  justified  in  recom- 
mending the  candidate's  promotion  unless,  in 
his  own  opinion,  the  officer  is  qualified  there- 
for;" that  the  Navy  Regulations  specifically 
pro^dde  that  "it  shall  be  held  obligatory  upon 
any  member  of  the  board  to  decline  to  recom- 
mend the  promotion  of  an  officer  until  he  is 
satisfied  of  the  officer's  entire  mental,  moral, 
and  professional  fitness  for  promotion";  that 
the  so-called  acquittal  of  the  court-martial  in 
tliis  case  had  been  disapproved  and  thereby 
set  aside  and  nullified  by  the  convening  author- 
ity; and  that  the  board  has  not  only  the  "pow- 
er "  but  the  duty  of  making  a  full  examination 
of  the  facts  in  the  case  and  determining  for 
itself  whether  the  matters  disclosed  by  the 
record  render  the  candidate  qualified,  or  not 
qualified,  for  promotion."  The  board  disre- 
garded the  above  instructions  and  in  its  re- 
\-ised  finding  stated:  "The  members  of  tliis 
board,  who  are  subordinate  in  rank  to  the  court 
who  acquitted  tliis  candidate,  feel  from  their 
training  and  association  with  commissioned 
officers,  that  the  members  of  the  court  must 
have  been  influenced  by  extenuating  cir- 
cumstances as  well  as  by  the  testimony  that 
appears  in  the  record  of  the  court  *  *  *. 
The  board  is  of  the  opinion  that  the  court- 
martial  board,  being  commissioned  officers  of 
high  rank  under  oath,  upon  their  honor,  ac- 
quitted the  candidate,  and  in  \dew  of  the  above 
accepts  the  findings  of  the  court."  The  court 
here  makes  the  same  error  as  previously.  The 
department  expects,  and  the  law  contem- 
plates, that  the  members  of  an  examining 
board  shall  be  competent  to  judge  for  them- 
selves whether  a  candidate  is  qualified  for 
promotion,  and  to  assume  the  responsibility 
placed  upon  them  by  law  of  so  doing.  It 
would  be  useless  to  convene  such  boards  if 
they  are  merely  to  reflect  the  opinion  which 
they  think  has  been  entertained  by  others. 
The  board  is  required  to  make  an  independent 
investigation  of  the  evidence  before  it,  in  order 
to  determine  the  candidate's  fitness  for  promo- 
tion, and  if  the  evidence  before  the  board  is  not 
sufficient,  the  board  is  by  law  given  authority 
to  obtain  additional  evidence.  Tlie  board 
should  know  that  the  members  of  a  court-mar- 
tial are  sworn  to  try  each  case  before  them 
"according  to  the  evidence  which  shall  come 
before  the  court,"  and  could  not  lawfully 
make  a  decision  based  upon  circumstances  not 
appearing  in  the  record.  Also  that  courts-mar- 
tial can  not  make  a  finding  of  guilty  unless  the 
evidence  establishes  the  guilt  of  the  accused 


beyond  a  reasonable  doubt,  while  on  the  other 
hand,  members  of  an  examining  board  are  not 
required  to  be  satisfied  beyond  a  reasonable 
doubt  that  a  candidate  is  not  qualified  for  pro- 
motion, but  instead  are  forbidden  to  recom- 
mend any  officer  for  promotion  "as  to  whose 
fitness  a  doubt  exists. ' '  In  other  words,  before 
a  court-martial  every  doubt  must  be  resolved 
in  favor  of  the  accused,  while  before  an  examin- 
ing board  such  doubts,  if  any,  must  be  resolved 
against  the  candidate,  and  the  existence  even 
of  a  doubt  as  to  his  fitness  requires  that  he  be 
not  recommended  for  promotion.  For  this 
reason  the  finding  of  a  court-martial,  even  if 
approved,  would  not  be  conclusive  upon  an 
examining  board.  (File  26260-3342  :  1,  Apr. 
7,  1916.) 

The  matter  of  determining  an  officer's  moral 
fitness  for  promotion  is  not  analogous  to  the 
question  of  determining  whether  he  should  be 
brought  to  trial  by  court-martial  for  alleged 
offenses.  On  the  contrary,  an  examing  board 
is  required  to  report  the  opinion  of  its  indi^ddual 
members  concerning  the  fitness  of  a  candidate 
for  promotion,  regardless  of  whether  unfavor- 
able matters  upon  the  candidate's  record  have 
been  acted  upon  by  a  comt-martial  or  not,  and 
regardless  of  the  finding  reached  by  the  court- 
martial  if  one  has  been  convened.  (File 
26260-3628:1,  Aug.  25,  1916.) 

Consideration  of  misconduct  by  candi- 
date which  is  not  within  the  reach  of  a 
court-martial. — Msconduct  in  private  life 
may  be  the  subject  of  trial  by  court-maitial  and 
the  department  endeavors  to  take  appropriate 
disciplinary  action  whenever  such  cases  are 
brought  to  its  attention.  However  under  ordi- 
nary circumstances  the  domestic  relations  of  an 
officer,  unless  there  has  been  misconduct  on  his 
part  reflecting  discreditably  on  the  naval  serv- 
ice and  justif>-ing  a  recourse  to  disciplinary 
proceedings  under  the  Articles  for  the  Govern- 
ment of  the  Navj',  are  not  regarded  as  matters 
falling  within  the  jurisdiction  of  the  Na-vy 
Department,  but  are  properly  under  the  juris- 
diction of  ci^-il  couj'ts.  Instances,  however, 
may  aiise  where  misconduct  in  pri^'ate  life 
would  not  be  within  the  reach  of  law  or  discip- 
line to  the  extent  of  court-martial  proceedings. 
Such  matters  are  nevertheless  subject  to  inves- 
tigation by  an  examining  board  in  determining 
an  officer's  fitness  for  promotion,  where  they 
have  occurred  since  the  last  examination 
whereby  he  was  promoted  or  where  they  have 
not  previously  been  inquired  into  and  decided 
upon,  or  where  they  constitute  a  "  fact  continu- 
ing" affecting  his  present  fitness  for  promo- 
tion.    (File  26521-179,  Feb.  19,  1917.) 

Consideration  of  matters  under  investi- 
gation by  civil  courts. — The  members  of  an 
examining  board  are  forbidden  to  recommend 
any  officer  for  promotion  "as  to  whose  fitness  a 
doiibt  exists."  The  board  has  the  duty  devolved 
upon  it  of  making  a  thorough  investigation  into 
the  matters  which  are  the  subject  of  correspond- 
ence referred  to  it  by  the  department,  exam- 
ining witnesses  with  reference  thereto  if  neces- 
sary, and  of  determining  as  the  result  of  such 
investigation,  together  with  any  other  matter.-? 
of  an  unfavorable  character  which  may  be  upo". 
the  candidate's  record,  whether  or  not  the  can- 
didate is  morally  qualified  for  promotion;    and 


719 


Sec,  1496. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


the  board  is  not  anthnrizod  to  delay  its  pro- 
cecKliugs  pending  a  dotei'niination  of  litigation 
in  the  civil  courts  invoking  the  relations  be- 
tAVoeu  the  candidate  and  his  wife.  It  is  pos- 
eilde  that  a  final  adjudication  upon  the  merits 
of  the  controversy  may  never  be  reached  in  the 
civil  proceedings,  and  even  if  it  were  this 
Would  not  relieve  the  board  of  its  duty  to  make 
an  independent  in\-estigation  of  the  matters  at 
issue  in  so  far  as  they  may  affect  the  moral  fit- 
ness of  the  candidate  for  promotion,  (l^'ile 
26260-3628:1.  Aug.  25,  1916.) 

Duty  of  board  to  -weigh  evidence  without 
requesting  department's  instructions. — 
"  With  regard  to  tlie  request  contained  in  your 
letter  above-mentioned,  that  the  board  be  in- 
structed as  to  whether  or  not  it  should  consider 
the  report  of  the  court  of  inquirj-  referred  to, 
the  report  of  Paymaster  Allen,  dated  Novem- 
ber 22.  1888,  and  the  action  of  the  department 
relative  thereto,  as  a  final  disposition  of  the 
matters,  you  are  informed  that  it  is  for  the 
board  to  examine  and  determine  as  to  whether 
or  not  these  reports  have  been  finally  acted 
upon  by  the  department;  if  acted  upon,  what 
weight  should  be  given  to  the  department's 
action;  and  if  not  acted  upon,  what  weight 
should  be  given  to  them  in  the  absence  of  such 
action  bv  the  department."  CFile  1966-93, 
May  16,  1893.) 

"The  determination  of  the  question  of  the 
fitness  of  an  officer  for  promotion  is  vested  by 
law  in  the  examining  board  and  in  the  Presi- 
dent, and  it  is  the  duty  of  the  examining  boai'd 
unembaiTassed  by  instructions  from  this  de- 
partment, to  give  such  consideration  to  all 
facts  occurring  since  the  examination  of  the 
candidate  for  his  last  promotion  as  well  as  to  all 
such  as  appear  upon  the  file  and  records  of  the 
department,  as  will  enable  it  to  reach  a  just 
conclusion."  (File  1966-93,  May  16,  1893.) 

An  examining  board  having  been  duly  ap- 
pointed and  organized  in  pursuance  of  law,  it 
becomes  its  duty,  in  accordance  with  the  re- 
quii'ements  of  section  1496  of  the  Revised 
Statutes,  to  ascertain  and  report  upon  the 
mental,  moral,  and  professional  fitness  of  the 
candidate  for  promotion.  As  sections  1499 
and  1502  of  the  Revised  Statutes  empower  the 
board  to  examine  any  matter  on  the  files  and 
records  of  the  Na\'y  Department  touching  each 
case  which  may  in  the  opinion  of  the  board  be 
necessary  to  assist  it  in  making  up  its  judgment 
relative  to  the  case  of  any  officer  under  consid- 
eration, and  it  being  understood  that  all  such 
matters  upon  the  files  and  records  of  the  de- 
partment are  placed  at  the  disposal  of  the 
board,  it  is  deemed  proper  that  the  board 
should  ]>e  left  to  the  performance  of  its  duties 
untrammeled  by  instructions  from  the  depart- 
ment.    (File  1966-93,  May  16,  1893.) 

Burden  of  proof. — The  following  is  quoted 
from  "General  Instructions"  formulated  by  the 
Secretary  of  the  Navy  on  December  14,  1894, 
concerning  proof  of  moral  fitness,  as  a  result  of 
questions  presented  in  the  case  of  Lieut.  Com- 
mander Frederick  W.  Crocker  (see  also  file 
26260-1392,  June  29,  1911): 

"6.  The  lieutenant  commander  whose  case  ia 
now  being  considered,  having  arrived  at  the 
point  where  he  is  entitled  to  promotion  to  the 
next  higher  grade,  under  conditions  fixed  by  the 


statute,  stands  in  the  position  of  an  applicant 
for  an  a))puiulnient.  lie  is  no  longer  to  be  a 
lieutenant  commander,  but  is  an  ajtplicant  for 
appointment  to  the  position  of  a  commander  in 
the  Navy  of  the  United  States,  an  office  of  great 
responsibility.  He  is  to  be  appointed  by  the 
President  and  confirmed  by  the  Senate,  pro- 
vided heiscompetentand  worthy.  Theburden 
of  proof  is  upon  him  to  show  that  he  complies 
with  these  conditions.  He  is  the  actor  in  these 
proceedings,  which  are  instituted  simply  to 
ascertain  the  facts  upon  which  the  President 
shall  act  in  sending  his  name  to  the  Senate,  and 
by  which  that  body  is  to  be  guided  in  confinn- 
ing  or  refusing  to  confinn  him. 

"7.  Any  reasonable  doubt  that  may  arise  out 
of  the  evidence  offered  is,  in  all  cases  of  this 
kind,  to  be  resolved  in  favor  of  the  Government 
and  against  the  applicant.  Should  the  appli- 
cant fail  of  appointment  under  these  rules,  the 
law  directs  that  he  is  to  be  discharged  from  the 
service,  unless  circumstances  exist  which 
authorize  his  retirement.  If  the  refusal  to 
appoint  were  intended  as  a  punishment,  the 
law  would  not  contemplate  payment  of  a  year's 
or  any  other  salary  on  his  discharge.  Such 
discharge  simply  means  that  the  Government 
no  longer  needs  the  applicant's  services. 

"8.  It  follows,  therefore,  from  the  nature  of 
these  proceedings,  that  the  statutes  of  limita- 
tion, quoted  by  counsel,  have  no  application 
whatever.  Everything  that  has  occurred  dur- 
ing the  applicant's  term  of  office  as  lieutenant 
commander,  or  at  any  other  time,  inquiry  into 
which  is  not  prohibited  by  the  law  and  regula- 
tions [see  sec.  1499,  R.  S.,  as  amended],  may  be 
adduced  for  the  purpose  of  showing  that  he  is 
not  competent,  or,  if  competent,  is  not  worthy 
of  the  appointment  to  the  office  of  commander 
which  he  now  seeks.  It  can  not  be  contended 
that  because  the  Government  has  not  instituted 
proceedings  by  court-martial  it  has,  therefore, 
been  negligent  in  the  matter  of  defending  itself 
against  a  claim  of  a  candidate  to  serve  it,  and 
is,  by  reason  of  its  own  neglect,  compelled  to 
appoint  an  unworthy  or  incompetent  person  to 
office.  The  Government  has  a  right,  when  an 
inquiry  of  this  nature  is  instituted,  to  satisfy 
itself  of  the  fitness  of  the  candidate  for  promo- 
tion, to  introduce  in  evidence  records  made  in 
accordance  with  the  regulations  lawfully  pre- 
scribed by  the  Secretary  of  the  Navy,  and  any 
other  testimony  that  may  be  necessary  to  sat- 
isfy itself  of  the  fitness  or  unfitness  of  candidates 
for  office. 

"9.  The  department  has,  however,  decided 
that  the  members  of  an  examining  board  should 
reach  their  conclusions  respecting  the  mental 
and  moral  qualifications  of  the  candidate  upon 
the  evidence  of  record  only^  independently  of 
any  personal  knowledge  which  they  may  have 
on  the  subject.  Any  facts  within  the  personal 
knowledge  of  members  of  the  board,  important 
to  be  considered,  should  be  made  matter  of 
record  and  the  candidate  given  an  opportunity 
to  meet  them.  Paragraph  8,  article  1715, 
United  States  Navy  Regulations,  is  accordingly 
amended  so  as  to  read  as  follows: 

"  'The  onus  of  establishing  professional  fit- 
ness shall  be  held  to  rest  entirely  upon  the 
officer  under  examination.  The  mental  and 
moral  fitness  of  the  candidate  shall  be  assumed 


720 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1497. 


unless  a  doubt  shall  be  raised  on  either  head  in 
the  mind  of  any  member  of  the  board,  from  the 
answers  contained  in  any  of  the  interrogatories 
or  reports  on  fitness,  from  the  general  reputation 
of  the  candidate,  or  from  other  sources  of  evi- 
dence of  record.  It  shall  be  held  obligatory 
upon  any  member  of  the  board  to  decline  to 
recommend  the  promotion  of  an  officer  until  he 
be  satisfied  of  the  officer's  entire  mental,  moral, 
and  profossionul  fitness  for  promotion.  The 
board,  while  careful  not  to  do  injustice  to  an 
officer  regarding  whom  there  is  any  doubt, 
shall  take  equal  care  to  safeguard  the  honor  and 
dignity  of  the  service,  recommending  no  officer 
for  promotion  as  to  whose  fitness  a  doubt  ex- 
exists.  '  ' '  (This  regulation  is  now  embodied  in 
Naval  Courts  and  Boards,  1917,  sees.  620,  643.) 

Finding  of  majority  of  board  governs. — 
The  board  may  find  an  oflicer  qualified  for 
promotion  by  a  majority,  and  one  member  (a 
minority)  may  find  him  not  so  qualified,  and 
such  a  majority  finding,  when  approved,  is 
valid.    (File  26260-1244,  Apr.  14,  1911.) 

In  case  of  dissent  the  record  must  show  those 
of  the  members  who  concurred  in,  and  those 
who  dissented  from,  the  opinion  of  the  board, 
with  the  reasons  for  dissent.  (Sec.  650,  Naval 
Courts  and  Boards.) 

This  section  not  applicable  to  temporary 
promotions. — Sections  1493  and  1496,  Revised 
Statutes,  clearly  relate  to  promotions  in  the 
permanent  Na\'\'.  The  act  of  May  22,  1917 
(40  Stat.,  84),  authorizes  temporary  promotions 
to  all  grades  in  the  Navy  above  the  lowest 
grades,  and  provides  (sec.  8)  that  all  temporary 
promotions  ' "  shall  continue  in  force  until  other- 
wise directed  by  the  President  *  *  *.  " 
Said  act  however  makes  no  express  provision 
as  to  the  manner  in  which  such  temporary 
promotions  shall  be  made.  On  the  other  hand, 
said  act  in  several  places  refers  to  existing  law 
with  reference  to  permanent  promotions.  The 
fact  that  the  act  of  May  22, 1917,  makes  repeated 
references  to  the  "permanent"  Navy  or  Marine 
Corps,  that  it  also  makes  repeated  references  to 
existing  law  in  connection  vriih  permanent 
promotions,  that  it  says  nothing  about  existing 


law  with  reference  to  temporary  promotions, 
and  that  it  expressly  makes  such  temporary 
promotions  revocable  by  the  President  at  any 
time,  leads  irresistibly  to  the  conclusion  that 
the  pro\dsions  of  existing  law  with  reference  to 
promotions  in  the  permanent  Navy  are  not 
controlling  as  to  the  temporary  promotions 
provided  for  in  said  act,  but  that  such  tempo- 
rary promotions  may  be  made  diuing  the  war  in 
accordance  with  such  rules  and  regulations  as 
the  President  may  prescribe.  Accordingly 
held,  that  an  officer  before  being  temporarily 
promoted  is  not  required  by  law  to  pass  any 
examination  either  as  to  his  mental,  moral, 
professional,  or  physical  qualifications;  but  that 
it  is  within  the  discretion  of  the  President  to 
determine  what  examinations  if  any  prelimin- 
ary to  temporary  promotions  are  advisable  for 
the  proper  protection  of  the  interests  of  the 
Government.  (File  28687-22,  June  14,  1917, 
citing  Taylor  v.  U.  S.,  38  Ct.  Cls.,  155,  noted 
under  sec.  1370,  R.  S.  Compare  25  Op.  Atty. 
Gen.,  341,  noted  under  sec.  1370,  R.  S.,  "Ap- 
plication of  statutory  requirements  to  appoint- 
ments under  subsequent  laws. "  See  also  31 
Op.  Atty.  Gen.,  173,  as  to  provisional  advance- 
ments in  rank  in  the  Naval  Reserve  Force.) 

The  act  of  May  22, 1917  (40  Stat.,  84),  clearly 
indicates  that  it  did  not  contemplate  the  pass- 
ing of  statutory  examinations  prior  to  tem- 
porary promotions  authorized  therein,  for  it 
expressly  requires  examination  of  all  officers 
prior  to  permanent  promotion,  notwithstanding 
that  they  have  in  the  meantime  been  tem- 
porarily promoted  to  higher  grades;  and  it 
would  be  an  absurdity  in  the  case,  for  example, 
of  an  officer  holding  a  permanent  commission 
as  lieutenant  and  temporarily  promoted  during 
the  war  to  the  grades  of  lieutenant  commander 
and  commander,  and  who  had  been  required  to 
pass  the  statutory  examinations  prior  to  such 
temporary  promotions,  to  require  him  there- 
after to  pass  the  prescril^ed  examinations  for 
permanent  promotion  to  the  grade  of  lieutenant 
commander  when  he  became  due  for  such 
permanent  promotion.  (File  28687-22,  June 
14,  1917.) 


Sec.  1497.  [Promotion  to  rear  admiral  in  time  of  peace.     Superseded.] 


This  section  provided  as  follows: 

"Sec.  1497.  In  time  of  peace  no  person  shall 
be  promoted  from  the  list  of  commodores  to  the 
grade  of  rear-admiral,  on  the  active  list,  until 
his  mental,  moral,  and  professional  fitness  to 
perform  all  his  duties  at  sea  has  been  established 
as  provided  in  the  preceding  section." — (16 
Julv,  1862,  c.  183,  s.  7,  v.  12,  p.  .584.  Amended 
by  21  April,  1864,  c.  63,  v.  13,  p.  53.) 

It  was  superseded  by  the  act  of  March  3, 
1899.  section  7  (30  Stat.,  1005),  which  abolished 
the  grade  of  commodore  on  the  active  list  of  the 
Nav>-  (see  note  to  sec.  1362,  R.  S.).  Thereafter 
promotions  to  the  grade  of  rear  admiral  were 
made  by  seniority  from  the  grade  of  captain  (see 
sec.  1458,  il.  S.),  subject  to  the  examinations 
required  by  sections  1493  and  1496,  Re\ised 
Statutes.  New  provisions  for  promotion  to  the 
grade  of  rear  admiral,  by  selection  from  the 
grade  of  captain,  were  contained  in  the  act  of 
August  20.  1916  (39  Stat.,  578),  which  said  act 
further  pro\dded  (39  Stat.,  579),  that  officers 
selected  for  promotion  thereunder  "  shall  prior 


to  promotion  be  subject  in  all  respects  to  the  ex- 
aminations prescribed  by  law  for  officers  pro- 
moted by  seniority. " 

Selection  of  rear  admirals  during  war  was 
provided  for  by  section  1365,  Re-\'ised  Statutes. 

Selection  by  the  President  of  officers  to 
command  squadrons  with  the  rank  and  title 
of  "  flag-officer  "  is  provided  for  by  sections  1434, 
1463,  and  1464,  Revised  Statutes.  The  act  of 
May  22,  1917  (40  Stat.,  89),  provided  that  said 
sections  of  the  Revised  Statutes  were  not  to  be 
construed  as  amended  or  repealed  by  the  pro- 
visions of  that  act  authorizing  the  designation 
of  officers  to  command  fleets  and  subdivisions 
thereof  with  the  rank  of  admiral  and  vice  admi- 
ral while  so  serving.  The  act  last  cited  further 
pro\dded  that  in  time  of  war  selections  under 
the  provisions  thereof  were  to  be  made  from  the 
grades  of  rear  admiral  or  captain  on  the  active 
list,  and  in  time  of  peace  from  among  the  rear 
admirals  on  the  active  list.  The  rank  of  "  flag- 
officer"  under  section  l-i34.  Revised  Statutes, 
is  now  rear  admiral  (see  note  to  said  section). 


721 


Sec.  1499. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Sec.  1498.  [Examining  boards.]  Such  examining  hoard  shall  consist  of  not 
less  than  three  olhcers,  senior  in  rank  to  the  officer  to  be  examined. —  (21  April, 
18G4,  c.  63,  s.  2,  v.  13,  p.  53.) 

Provisions  of  this  section  held  manda- 
tory.— ^^'he^e  a  naval  examining  board  con- 
aisted  of  three  ofiicers.  oneof  wliom  was  not  senior 
in  rank  to  the  oUicor  to  be  examined,  held  iha.t 
the  proceedings  of  said  board  should  be  disap- 


proved aa  fatally  defective.  The  law  being 
mandatory  in  its  tenns,  all  the  members  of  the 
board  must  ])e  senior  to  the  officer  imder  exam- 
ination before  them.  (File  2G260-1244,  Apr.  14, 
1911.) 


Sec.  1499.  [Powers  of.]  Said  board  shall  have  power  to  take  testimony 
and  to  examine  all  matter  on  the  files  and  records  of  the  Navy  Department 
relating  to  any  officer  whose  case  may  be  considered  by  them.  The  mtnesses, 
when  present,  shall  be  sworn  by  the  president  of  the  board. —  (21  April,  1864, 
c.  63,  s.  1,  V.  13,  p.  53.) 


Amendment  to  this  section  was  made  by  act  of 
June  18,  1878  (20  Stat.,  1G5),  which  pro- 
vided "that  hereafter  in  the  examination 
of  officers  in  the  Na\^  for  promotion  no  fact 
which  occiured  prior  to  the  last  examina- 
tion of  the  candidate  whereby  he  was  pro- 
moted, which  has  been  enqiiired  into  and 
decided  upon,  shall  be  again  enquired  into, 
but  such  previous  examination,  if  ap- 
proved, shall  be  conclusive,  unless  such 
fact  continuing  shows  the  unfitness  of  the 
officer  to  perform  all  his  duties  at  sea." 

Refusal  of  Navy  Department  to  furnish 
board  with  records  prior  to  last  examina- 
tion of  candidate. — As  has  been  judicially 
stated  (Da^is  v.  U.  S.,  24  Ct.  Cls.,  442),  the 
above  section  of  the  Revised  Statutes  "opened 
up  the  whole  past  life  of  an  applicant  for  pro- 
motion, and  made  him  liable  at  each  step  in 
his  career  to  a  fi-esh  investigation,  long  after  the 
event,  of  charges  before  '  enquired  into  and 
decided  upon.'  To  remedy  any  injustice  this 
may  have  caused,  probaljly,  the  statute  of  June 
18,  1878,  was  passed.  This  sfcitute  places  a  bar 
in  the  way  of  a  new  examination  into  old  accu- 
sations or  facts,  and  starts  the  officer  in  his 
higher  grade  with  a  clean  record,  unless  the 
fact  be  a  continuing  one,  showing  the  candi- 
date's imfitness  to  'perfonn  all  his  duties  at 
sea.'  "  Again,  in  the  same  case  (Davis  v.  U.  S., 
24  Ct.  Cls.,  445),  it  was  stated:  "The  limit 
placed  by  Congress  upon  the  scope  of  inquirj' 
was  that  past  issues,  old  charges,  once  enquired 
into  by  competent  authority,  decided  upon  and 
the  decision  approved,  should  not  be  reopened. 
When  promoted  to  the  gi'ade  of  pay  inspector 
Davis's  record  as  paymaster  had  been  investi- 
gated by  an  examming  board  and  passed  upon. 
The  finding  had  been  approved.  The  statute 
holds  that  decision  to  be  final;  it  closes  forever, 
so  far  as  examining  boards  are  concerned,  one 
period  of  the  officer's  professional  career,  imless 
a  'fact  continuing  shows  the  unfitness  of  the 
officer  to  perfomi  all  his  duties  at  sea.'  "  The 
record  of  the  candidate  in  this  case  prior  to  his 
last  promotion  does  not  contain  any  matter 
which  the  board  is  authorized  to  inquii'e  into 
by  the  act  of  June  18,  1878,  and  the  Navy  Regu- 
lations, consequently  the  department  does  not 
deem  it  advisable  to  furnish  such  record  to  the 
board  as  requested  by  the  president  thereof. 
(File  26521-173,  Jan.  25.  1917.) 


Upon  the  examination  of  officers  for  promo- 
tion the  law  in  explicit  language  prohibits 
inquiry  into  any  fact  which  occurred  prior  to 
the  last  examination  whereby  the  candidate 
was  promoted,  which  has  already  been  inquired 
into  and  decided  upon,  and  specifically  pro- 
vides that  "such  previous  examination,  if 
approved,  shall  be  conclusive."  Only  one 
exception  to  this  mandatory  rule  is  contained 
in  the  statute,  and  that  is  where  the  "fact  con- 
tinuing shows  the  unfitness  of  the  officer  to 
perform  all  his  duties  at  sea."  The  record  of 
the  candidate  in  this  case  prior  to  his  last 
examination  is  entirely  clear  of  all  offenses  of 
the  character  mentioned  by  the  board,  and 
therefore  does  not  contain  any  matters  into 
which  the  board  is  authorized  by  law  to  inquire, 
and  for  this  reason  it  is  held  that  the  depart- 
ment has  not  the  right  to  furnish  the  same  to 
the  board  in  response  to  its  request.  Such 
action  would  produce  a  de\'iation  from  the 
statutory  provisions,  and  the  precedent  thus 
established  might  some  time  in  the  future 
result  in  the  proceedings  of  a  naval  examining 
board  being  set  aside  and  annulled  as  fatally 
irregular  and  defective.  (File  26521-173:1, 
Feb.  1,  1917.) 

For  other  cases,  see  note  to  section  1496, 
Re\T.sed  Statutes,  under  •"  Consideration  by 
board  of  court-martial  proceedings." 

Records  submitted  to  Board  on  Selec- 
tion for  Promotion. — The  act  of  August  29, 
1916  (39  Stat.,  578,  579),  relating  to  the  selection 
of  officers  for  promotion,  provides  that  the 
selection  board  shall  be  furnished  by  the  Secre- 
tary of  the  Navy  "with  the  record  of  each  offi- 
cer." Under  this  law  the  board  must  be  fm- 
nished  with  the  entire  record  of  the  officer 
since  his  appointment  to  the  Navy-,  and  not 
merely  the  record  of  the  officer  in  his  existing 
grade.  The  act  of  June  18,  1878,  modif\ing 
section  1496,  Revised  Statutes,  is  inapplicable 
to  the  selection  board,  whose  examination  of 
the  entire  record  would  seem  to  be  almost 
essential  to  determine  comparative  fitness. 
The  act  of  June  18,  1878,  can  still  have  effective 
operation  with  reference  to  the  promotion  of 
officers  to  gi-ades  below  commander,  and  also 
with  reference  to  the  promotion  of  officers  to 
the  grades  of  commander,  captain,  and  rear 
admiral,  as  the  act  of  August  29,  1916,  continues 
in  force  the  proAdsions  of  the  Revised  Statutes 
relating  to  the  promotion  board,  as  supplemen- 


722 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1500. 


tary  to  selection  in  the  latter  cases,  by  the  pro- 
vision "that  any  officers  so  selected  shall  prior 
to  promotion,  be  subject  in  all  respects  to  the 
examinations  prescribed  by  law  for  officers  pro- 
moted by  seniority."  (31  Op.  Atty.  Gen.,  87, 
concmTing  in  opinion  of  the  Judge  Advocate 
General,  Nov.  28,  1916,  file  26521-169,  which 
overruled  the  opinion  of  the  Acting  Judge  Ad- 
vocate General  of  Nov.  14,  1916,  file  26521-169). 
Counsel  for  examining  board. — A  letter 
having  been  received  by  an  examining  board 
signed  as  coimsel  for  a  candidate  for  promotion 
the  board  requested  that  some  person  con- 
versant with  the  law  be  detailed  to  attend  the 
sittings  of  the  board  and  act  as  their  adviser  in 
matters  of  law  and  procedure.  The  department 
accordingly  designated  to  advise  the  board  in 
matters  of  law  and  procedure  an  officer  attached 
to  the  Judge  Advocate  General's  office  who  had 


been  assigned  when  occasion  requu'ed  to  the 
duty  of  conducting  comls  of  inquhy  and  comts- 
martial.  This  action  was  taken  in  accordance 
with  the  precedent  established  some  12  years 
l^efore  when  the  same  candidate  was  examined 
for  promotion  to  his  present  gi'ade  (pay inspec- 
tor). On  that  occasion  gi-ave  matters  affecting 
his  fitness  were  upon  record  and  the  first  navsu 
examining  board  which  examined  him  found 
him  neither  morally  nor  professionally  quali- 
fied for  promotion.  Col.  Kobert  G.  Ingersoll 
appeared  as  his  counsel  before  that  board  and 
Assistant  Attorney  General  Simons  was  assigned 
to  the  duty  of  assisting  the  board  during  the 
examination.  (Memo.  Sec.  Navy,  Mar.  7, 1893, 
in  relation  to  the  examination  of  Pay  Insp. 
John  H.  Stevenson  for  promotion  to  pay  direc- 
tor.) 


Sec.  1500.  [Officer  may  be  present  and  make  statement.]  Any  officer  whose 
case  is  to  be  acted  upon  by  such  examining  board  shall  have  the  right  to  be 
Present,  if  he  so  desires,  and  to  submit  a  statement  of  his  case  on  oath. —  (21 
April,  1864,  c.  63,  s.  3,  v.  13,  p.  53.) 


Provisions  of  this  section  held  manda- 
tory.— Every  officer  of  the  Na\y  whose  eligi- 
bility to  promotion  is  to  be  acted  upon  by  an 
examining  board  under  the  proAisiona  of  sec- 
tions 1496, 1498-1505,  Re^^.sed  Statutes,  has  the 
right  to  be  present  at  his  examination.  He 
must  be  duly  notified  of  the  time  and  place  of 
his  examination,  and  unless  he  waives  his  right 
or  expresses  a  lack  of  desire  to  be  present,  he 
must  be  given  lea^'e  of  absence  or  permission  to 
attend.  No  finding  of  the  board  adverse  to  his 
qualifications  for  promotion  can  be  made  wdth- 
out  a  personal  examination  of  such  officer  unless 
he  fails  to  appear  after  haAing  been  dulv  noti- 
fied to  do  so  (sec.  1503,  R.  S.).  Held,  tliat  the 
proceedings  and  findings  of  the  naval  examin- 
ing board  in  this  case  are  fatally  irregular  and 
defective  in  that  (1)  said  officer,  being  at  the 
time  in  the  discharge  of  hia  duty  on  shipboard, 
and  under  orders  of  his  superior  officer,  was  not 
notified  of  the  time  and  place  of  his  examination 
for  promotion,  and  was  not  given  and  did  not 
have  an  opportunity  or  permission  to  exercise 
his  right  to  appear  and  be  heard  at  such  exami- 
nation; and  (2)  said  board  of  examiners  rejected 
said  officer  and  his  application  for  promotion 
\\ithout  any  examination  of  himself,  although 
he  had  not  failed,  "after  ha\ing  been  duly 
notified,  to  appear  before  said  board."  (27  Op. 
Atty.  Gen.,  251.) 

Waiver  of  right  to  appear  must  be 
affirmative. — From  the  provisions  of  sections 
1500  et  seq . ,  it  is  apparent  that  in  every  case  the 
officer  whose  case  is  to  be  acted  upon  has  the 
right  to  appear  and  to  be  heard.  The  declara- 
tion of  this  right  to  be  present  carries  Avith  it  a 
command  to  those  ha\ing  control  of  his  person 
to  relieve  him  from  restraint  and  permit  him  to 
exercise  the  right  thus  conferred.  An  officer  on 
duty  can  not  leave  \vithout  orders  or  permission ; 
it  is  therefore  the  manifest  duty  of  the  proper 
officers  to  give  to  the  candidate  timely  notice 
of  the  time  when  and  place  where  the  board 
■\\ill  meet  to  consider  his  case,  and  to  give  him 
also  leave  of  absence  and  permission  to  attend; 


or  to  ascertain  from  him  that  he  did  not  desii'e 
to  be  present.  Without  this  the  officer  is 
effectually  deprived  of  the  right  secured  to  him 
by  the  statute.  The  right  to  be  present  may  be 
waived;  but  in  order  to  do  this  some  affirmative 
act  of  waiA'er  is  necessary  and  it  is  not  inferred 
from  the  fact  that  the  officer  continues  in  the 
performance  of  the  duty  to  which  he  has 
been  ordered  nor  is  this  any  expression  of  a 
lack  of  desire  to  be  present  at  his  exami- 
nation.    (27  Op.  Atty.  Gen.,  251.) 

Correction  of  action  taken  where  officer 
not  accorded  the  right  to  be  present. — 
In  this  case  the  officer  appeared  before  the 
board,  but  the  examination  was  temporarily 
suspended  and  he  was  granted  permission  to  go 
home  and  to  be  absent  until  notified  by  the 
board  to  appear.  lie  failed  to  receive  this 
notice  imtil  after  the  examination,  which  was 
resumed  during  his  absence,  had  been  com- 
pleted. The  proceedings  and  findings  of  the 
board  were  approved  by  the  President  and  his 
orders  in  the  case  duly  executed  by  the  retire- 
ment of  the  officer  under  section  1447,  ReAdsed 
Statutes,  but  the  vacancy  created  by  such  re- 
tirement remains  unfilled:  Held,  that  the  action 
of  the  President  can  be  revoked  and  the  officer 
allowed  a  rehearing,  the  vacancy  created  by  hia 
retirement  not  having  been  filled  and  no  righta 
of  any  other  person  having  therefore  intervened. 
(16  Op.  Atty.  Gen.,  20.) 

Certain  officera  in  the  grade  of  lieutenant,  by 
reason  of  vacancies  in  the  next  higher  grade  and 
their  seniority  became  eligible  for  promotion  to 
the  vacancies  upon  passing  the  examinations 
required  by  section  1496.  They  were  exam- 
ined and  found  disqualified  j^rofessioually  for 
promotion.  They  were  suspended  from  pro- 
motion (sec.  1505,  R.  S.)  and  other  officers  next 
in  order  of  seniority  were  examined,  found  qual- 
ified, and  appointed  to  said  vacancies.  Lieut. 
Barnes  was  one  of  the  officers  first  examined  and 
the  Attorney  General  (27  Op.  Atty.  Gen.,  251, 
258)  held  that  said  examinations  were  fatally 
irregular  and  defective.     In  consequence  of  the 


723 


Sec.  1502 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Attorney  General's  conflusion  the  four  ofFicers 
who  liad  boon  suspended  from  {promotion  were 
ajraiu  oxaniinod,  found  i|u;ililu'd,  and  coinmis- 
eioned  to  fill  the  vacancies  in  the  ejade  of  lieu- 
tenant commander  to  which  they  were  orig- 
inally entit  h'd.  This  necessitated  the  chaniring 
of  the  dates  of  ])rouiotion  to  lhe  grade  of  lieu- 
tenant commander  of  those  ollicers  who  in  the 
meantime  had  (|ualificd  and  been  commissioned. 
The  fSecretaiy  of  the  Na\y  proi)erly,  in  accord- 
ance with  the  Attorney  General's  opinion, 
treated  the  examination  as  void  and  gave  the 
officers  otlier  examinations.  Jhld,  that  the 
promotions  first  made  were  contraiy  to  law 
(section  1458,  R.  S.)  as  the  officers  so  promoted 
were  not  the  senior  oflicers  entitled  to  such 
promotion,  in  view  of  the  fact  that  the  exami- 
nations fh-st  held  were  irregular;  accordingly 
held  that  the  commissions  issued  to  such  officers 
were  ineffecti^■e  to  give  them  the  offices,  but 
that  such  officers  were  de  facto  lieutenant  com- 
manders from  the  date  they  received  notice  of 
their  commissions  and  entered  upon  duty 
thereunder,  although  such  promotions  were 
subsequently  set  aside  as  illegal;  and  that  pay 
received  as  such  de  facto  lieutenant  command- 
ers can  not  be  recovered  back.  (17  Comp. 
Dec.,  611).  lender  similar  circumstances,  an 
officer  who  did  not  receive  notice  of  his  pro- 
motion until  after  the  date  from  which  he  took 
rank  when  subsequently  promoted  in  accord- 
ance with  law  to  another  vacancy,  was  neither 
a  de  j  ure  nor  de  facto  officer  during  the  inteiim 
and  therefore  is  not  entitled  to  pay  as  lieutenant 
commander  for  that  period.  (18  Comp.  Dec, 
340.) 

Examination  by  supervisory  board. — 
Wliere  the  written  professional  examination  of 
an  officer  is  conducted  under  the  supervision  of 
a  board  of  officers  where  he  is  stationed,  before 
which  supervisoiy  board  the  officer  was  ordered 
to  and  did  appear  for  examination,  but  the 
record  of  proceedings  of  said  supervisory  board 
and  all  the  evidence  before  it  were  transmitted 
to  the  Naval  Examining  Board  at  Wasliington, 
D.  C,  to  be  finally  passed  ujDon  by  the  latter 
board  subject  to  the  approval  or  disapproval  of 
the  President,  held  that  the  officers  who  super- 
vised such  examination  as  was  had  at  the 
officer's  station  were  not  the  naval  examining 
board  referred  to  in  the  statutes;  their  office  was 


merely  to  collect  and  put  into  proper  written 
form  certain  data  and  evidence  bearing  upon 
the  qiialilications  of  the  candidate  and  to 
transmit  the  same  properly  certified  to  the 
examining  board  at  Washington  and  it  is  the 
latter  board  to  which  tlie  statutes  refer,  before 
which  the  candidate  has  the  right  to  be  pres- 
ent.    (27  Op.  Atty.  Gen.,  251.) 

Where  an  officer  appearing  before  a  super- 
visoiy board  formally  waived  liis  right  to  appear 
before  the  statutory  board,  which  latter  board 
found  him  not  ])rol'e.ssionally  qualified  for  pro- 
motion, it  was  decided  by  the  Secretary  of  the 
Navy,  in  accordance  with  the  Attorney  Gen- 
eral's opinion  (27  Op.  Atty.  Gen.,  251,  noted 
above),  that  it  would  be  legal  to  suspend  the 
officer  from  promotion  in  accordance  with  sec- 
tion 1505,  Re\dsed  Statutes,  as  amended,  but 
that  as  a  matter  of  expediency,  he  would  be 
permitted  to  appear  before  a  statutoiy  boai'd 
for  personal  examination.  (File  26260-2744, 
May  22.  1910.) 

Candidate  should  be  formally  notified 
of  charges  against  him. — \\Tiile  it  has  been 
held  by  the  Navy  Department  that  the  candi- 
date ha\dng  been  present  during  the  examina- 
tion and  knoAvn  the  testimony  introduced,  and 
having  announced  that  he  would  not  avail  him- 
self of  the  opportunity  given  by  the  board  to 
offer  further  testimony,  had  no  ground  for  com- 
plaint on  accoimt  of  the  fact  that  he  had  not 
been  formally  notified  that  the  evidence  tended 
to  show  that  "he  was  addicted  to  habits  of  intem- 
perance, the  depaitment  deems  it  proper  that 
in  a  case  of  this  character  the  candidate  should 
be  formally  notified  of  the  charges  against  him 
and  heard  upon  them  as  indicated  in  the  pub- 
lished instructions  for  naval  courts  and  board. 
(File  2136-98,  Apr.  12,  1898.) 

Statement  by  candidate  not  under 
oath. — The  candidate  has  the  right  to  submit 
a  statement  of  his  case  on  oath,  if  he  chooses  so 
to  do;  however,  where  he  did  not  express  any 
desire  to  make  his  statement  under  oath,  but 
submitted  a  statement  not  under  oath,  it  must 
be  taken  that  he  waived  the  right  to  make  said 
statement  under  oath.  The  proceedings  of  the 
board  in  such  case  were  accordingly  approved 
by  the  President.  (File  26260-1678,  Feb.  28, 
1912;  see  also  file  26260-1360:1,  Jan.  30  and 
Feb.  12.  1912.) 


Sec.  1601.  [Record.]  The  statement  of  such  officer,  if  made,  and  the  tes- 
timony of  the  witnesses  and  his  examination  shall  be  recorded. — (21  April, 
1864,  c.  63,  s.  3,  v.  13,  p.  53.) 


The  Judge  Advocate  General  shall,  under  the 
dii-ection  of  the  Secretaiy  of  the  Nav>% 
receive,  revise,  and  have  recorded  the 
proceedings  of  all  boards  for  the  examina- 
tion of  officers  for  promotion  in  the  naval 


service.     (Act  June  8,  1880,  21  Stat.,  164, 

amended  June  5,  1896,  29  Stat.,  251.) 

Instructions  for  the  keeping  of  records 

of   examining   Ijoards   and    the   form   of   such 

records,    are   contained   in  Naval   Courts  and 

Boards,  1917. 


Sec.  1602.  [Revision  by  the  President.]  Any  matter  on  the  files  and  records 
of  the  Navy  Department,  touchmg  eacli  case,  which  may,  in  the  opuiion  of  the 
board,  be  necessary  to  assist  them  in  making  up  their  judgment,  shall,  together 
with  the  whole  record  and  finding,  be  presented  to  the  President  for  his  approval 
or  disapproval  of  the  finding. —  (21  April,  1864,  c.  63,  s.  3,  v.  13,  p.  53.) 


724 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1503. 


Amendment  to  this  section  was  made  by  act 
of  June  IS,  1878  (20  Stat.,  165),  which  pro- 
\'ided ' '  that  hereafter  in  the  examination  of 
officers  in  the  Navy  for  promotion  no  fact 
which  occuiTed  prior  to  the  last  examina- 
tion of  the  candidate  whereby  he  was  pro- 
moted, which  has  been  enquired  into  and 
decided  upon,  shall  be  again  enquired  into, 
but   such   preAT-Ous   examination,    if    ap- 
proved, shall  be  conclusive,  unless  such 
fact  continuing  shows  the  unfitness  of  the 
officer  to  perform  all  his  duties  at  sea." 
Also  by  act  of  May  22.  1917,  section  20  (40 
Stat..  90),  which  provided  that  "the  Presi- 
dent be,  and  he  is  hereby,  authorized  to 
direct  the  Secretarj'  of  the  Na\'y  to  take 
such  action  on  the  records  of  proceedings  of 
naval  examining  boards  and  boards  of  naval 
siu'geons  for  the  promotion  of  officers  of  the 
Navy  as  is  now  required  by  law  to  be  taken 
by  tiie  President."' 
Supervisory  power   of   President   over 
physical  examination. — Section  3  of  the  act 
of  April  21,  18G4  (sec.  1502,  R.  S.),  refers  to 
action  by  the  President  upon  the  finding  of  the 
board  of  examining  officers  provided  for  in  sec- 
tion 1  of  that  act,  wliich  passes  upon  the  "men- 
tal, moral,  and  professional  fitness"  of  the  can- 
didate.   There  is  nothing  in  said  act  constituting 
the  board  of  na\-al  surgeons,  as  to  who  shall  ap- 
point them, or  as  to  the  number  of  whichthe  board 
shall  consist,  nor  any  express  provision  for  ap- 
proval or  disapproval  by  the  President.     How- 
ever, by  the  fourth  section  of  the  act  of  July  16, 
1862  (12  Stat.,  584),  provision  was  made  for  an 
ad\"isory  board  to  report  upon  the  "moral,  men- 
tal, physical,  and  professional  qualifications"  of 
line  officers  for  promotion;  and  section  5  of  the 
act  of  April  21.  1864,  provides  that  all  officers 
not  recommended  for  promotion  under  the  said 
pro\'ision  in  the  act  of  1862  *' shall  have  the  right 
to  present  themselves  for  examination,  accord- 
ing to  the  proA-isions  of  this  act;  and  if  found 
duly  qualified,  and  such  finding  be  approved 
by  the  President  of  the  United  States,  they 
shall  be  promoted,"  etc.     Although  this  pro- 
vision of  the  act  of  1864  provides  only  for  such 
officers  who  lia\'e  been  before  the  board  estab- 
lished by  the  act  of  1862.  and  were  not  recom- 
mended by  that  board,  it  affords  safe  groand 
for  holding  that  the  same  approval  exists  as  to 
all  other  officers  examined  by  both  boards  in 
accordance  with  the  act  of  1864.     Accordingly, 
held,  that  the  President  has  a  supervisory  power 
over  the  action  of  the  board  of  naval  siii-geons 
proA-ided  for  in  section  4  of  the  act  of  April  21, 
1864  (sec.  1493,  R.  S.),  and  may  approve  or 
disapprove  the  same.     (12  Op.  Atty.  Gen.,  347.) 
No  officer  can  be  promoted  until  his  physical 
fitness  to  discharge  all  his  duties  at  sea  has  been 
favorably  passed  upon  by  a  board  and  the 
board's  action  has  the  approN-al  of  the  President. 
(Hooper  1).  U.  S.,  53  Ct.  Cls.,  90,  102.) 

The  conclusions  of  any  military  court,  board, 
or  commission  must,  before  being  carried  into 
execution,  have  the  approval  of  the  Commander 
in  Chief  or  of  some  one  representing  him.  Ac- 
cordingly, even  where  the  law  does  not  ex- 
pressly provide  for  approval  of  boards  in  the 
Ai-my,  such  boards  must  receive  the  approval 
of  the  Secretar}'  of  War,  whose  action  is  con- 
clusively presumed  to  be  that  of  the  President, 


in  order  to  be  valid  and  effective.  It  is  not, 
however,  essential  that  this  approval  should 
be  express  or  indicated  in  any  formal  language; 
it  might  be  indicated  by  merely  giving  effect, 
thi'ough  appropriate  orders,  to  the  findings  of 
the  board.  (27  Op.  Atty.  Gen.,  193;  file 
26266—627:1,  Jan.  30,  1919.) 

See  also  act  of  May  22,  1917,  section  20  (40 
Stat.,  90),  quoted  above  as  amendment  to  sec- 
tion 1502. 

Approval  or  disapproval  of  President 
required  to  give  effect  to  findings. — Under 
the  law  a  candidate's  status  could  not  become 
that  ef  an  officer  qualified  for  promotion  until 
his  physical  fitness  for  the  promotion  had  been 
found  b}^  a  board  of  naval  surgeons,  as  required 
by  sections  1493  and  1494,  Revised  Statutes, 
and  his  mental,  moral,  and  professional  fitness 
therefor  had  been  found  by  a  board  of  examin- 
ing officers  appointed  under  section  1496,  and 
*the  findings  of  both  of  these  boards  to  that  effect 
had  been  approved  by  the  President  as  required 
by  section  1502  (22  Comp.  Dec,  153,  citing  12 
Op.  Attv.  Gen.,  347,  18  Comp.  Dec,  466, 
Jouett  V.  U.  S.,  28  Ct.  Cls.,  257,  266).  On  the 
other  hand,  his  status  could  not  become  that 
of  an  officer  disqualified  for  promotion  or  to 
whom  the  presumption  of  disqualification  at- 
taches by  the  mere  finding  of  the  board  alone, 
without  its  approval  by  the  President,  as  sec- 
tion 1502  requires  equally  all  findings  of  a  board, 
whether  of  fitness  or  unfitness,  to  be  presented 
to  the  President  for  his  approval  or  disapproval, 
and  an  officer  is  entitled  to  the  benefit  of  the 
President's  action  on  an  adverse  finding  before 
being  classed  as  disqualified  or  being  presumed 
to  be  disqualified.  (22  Comp.  Dec,  153;  com- 
pare Hooper  v.  U.  S.,  53  Ct.  Cls.,  90.) 

The  promotion  of  an  officer  can  not  take  place 
(under  sees.  1493,  1494,  1496,  and  1502)  until 
his  fitness  for  the  promotion  has  been  established 
to  the  satisfaction  of  both  the  lx)ard  of  naval 
siu-geons  and  the  board  of  examining  officers, 
and  the  recommendation  of  both  boards  to  tliis 
effect  has  been  rendered  operative  by  the 
approval  of  the  President.  (18  Comp.  Dec, 
466,  citing  12  Op.  Atty.  Gen.,  347;  Jouett  v. 
U.  S.,  28  Ct.  Cls.,  257,  266-267;  Adamson  v. 
U.  S.,  19  Ct.  Cls.,  623,  628;  Crygier,  Admx.  v. 
U.  S.,  25  Ct.  Cls.,  268;  17  Comp.  Dec,  167,  etc.) 
Suspension  of  action  by  the  President. — 
An  officer  absent  from  the  United  States  on 
duty  on  a  foreign  station  became  due  for  promo- 
tion by  seniority;  he  was  nominated  for  the 
promotion,  "subject  to  the  requii'ed  examina- 
tion before  being  commissioned'';  the  Senate 
achised  and  consented  to  the  appointment  of 
said  officer  and  others  similarly  nominated, 
' ' agreeably  to  theii-  nominations,  respectively' ' ; 
the  same  day  the  President  signed  a  commission 
appointing  the  officer  to  the  higher  ^ade  for 
which  nominated  and  confirmed,  which  com- 
mission was  given  to  the  Secretary  of  the  Navy, 
who  held  it  to  be  delivered  to  the  officer  upon 
his  passing  the  examination  required  by  law; 
after  his  return  to  the  United  States  some  years 
later,  the  officer  was  duly  examined,  and 
reported  qualified  by  the  board  in  conformity 
with  section  1504,  Revised  Statutes;  the  Presi- 
dent took  the  following  action  upon  the  board's 
report:  "After  examination  of  the  record  I  have 
concluded  to  suspend  final  action  upon  the 


725 


Sec.  1502. 


Pi.  2.  REVISED  STATUTES. 


The  Navy. 


fijuliiig  of  the  l>oard  luilil  uii  opportunity  shall 
hAxo  been  afforded  Lieut.  Jouett  to  further 
estal^lit^h  hi.>^  fitne.'ss  for  promotion,  which,  con- 
pideriiig  the  c^•idenc■e  of  record  indicating  a 
tendency  on  his  part  to  intemperate  habits,  I 
regard  as  open  to  question,  lie  will  therefore 
1)6  ordered  for  duty  at  sea,  for  such  period  as 
the  Secretary-  of  the  Navy  may  deem  proper, 
and  his  conduct  while  on  such  sendee  will  be 
roi  Hirted  for  my  information . ' '  The  President's 
order  was  obeyed,  and  more  than  a  year  later 
he  disapproved  the  findings  and  recommenda- 
tions of  the  lx)ard  and  directed  the  officer  to  be 
reexamined.  The  following  year  the  r)fficer 
wasreexamined  andfound  not  morally  qualified, 
which  finding  was  ajijiroved  by  the  President 
and  the  officer  discharged  from  the  service  in 
accordance  with  the  act  of  August  5,  1882  (22 
Stat.,  280),  (which  was  enacted  after  he  had 
become  due  for  promotion  and  had  been  nom- 
inated, confirmed,  and  his  commission  made 
out  subject  to  examination).  Held,  That  the 
President's  approval  or  disapproval  of  the  find- 
ings is,  by  section  1502,  Re^dsed  Statutes,  dis- 
tinctly required,  and  it  is  contemplated  that  he 
shall  "examine  the  whole  record  and  findings: 
having  the  duty  imposed  upon  him  to  approve 
or  disapprove,  the  President  had  the  power  to 
suspend  action  or  to  seek  further  information; 
these  are  necessaiy  incidents  of  the  executive 
reviewdng  power;  to  become  operative  the 
board's  decision  must  be  acted  upon  by  the 
President,  and  the  nomination  and  confirma- 
tion of  a  naval  officer  for  promotion,  ''subject 
to  the  required  examination  before  being  com- 
missioned," do  not  take  the  case  out  of  the 
operation  of  the  Pve^'ised  Statutes,  section  1502, 
which  makes  examinations  subject  to  the 
approval  of  the  President.  (Jouett  v.  U.  S.,  28 
Ct.  ns.,257.) 

An  officer  was  examined  for  promotion  in 
course  to  fill  a  vacancy  existing  on  August  23, 
1912;  the  board  of  naval  surgeons  which  ex- 
amined him  on  December  9,  1912,  found  him 
physically  qualified  for  promotion  and  said 
finding  was  approved  by  the  President  Julyl, 
1913 ;  the  examining  board ,  which  examined  him 
on  February  4,  1913,  found  him  mentally  and 
professionally,  but  not  morally,  qualified;  this 
finding  was  not  presented  to  the  President  and 
no  action  was  taken  by  him  thereon.  He  was 
again  examined,  May  8,  1913,  and  found  men- 
tally, morally,  and  professionally  qualified;  the 
President  on  July  1,  1913,  directed  that  action 
upon  this  report  be  suspended  for  one  year;  he 
was  again  examined,  August  19, 1914,  and  found 
mentally,  morally,  and  professionally  qualified; 
the  President  on  September  IG,  1914,  directed 
that  action  upon  this  report  be  withheld  for  a 
period  of  six  months,  "when  such  action  will 
tje  taken  as  the  nature  of  a  special  report  which 
will  be  required  from  his  commanding  officer 
will  warrant."  At  the  end  of  six  montlis  the 
required  findings  and  special  report  were  sub- 
mitted to  the  President  and  on  I^Iarch  25,  1915, 
he  approved  the  findings  of  the  examining 
boards  of  May  8,1913,  and  Augu.st  19,  1914,  to 
the  effect  that  the  officer  was  mentally,  morally, 
and  professionally  qualified.  The  President 
ha^'ing  previously  approved  the  findings  of  the 
medical  board  as  to  the  physical  fitness  of  the 
candidate,  upon  his  approval  of  the  findings  as 


to  his  mental,  moral,  and  professional  quali- 
iications  on  March  24,  1915,  the  candidate's 
status  became  that  of  an  officer  qualified  for 
promotion  in  course  to  fill  a  vacancy,  who  had 
not  previously  been  disqualified  for  the  promo- 
tion and  to  whom  no  presumption  of  disquali- 
fication attached  prior  to  his  actual  qualifica- 
tion, and  who  therefore  is  presumed  to  have 
been  qualified  from  the  date  of  the  vacancy. 
(22  Com  p.  Dec,  153;  compare  Hooper  v.  U.  S., 
53rt.  Cls.,  90.) 

Section  1502  contemplates  an  examination 
by  the  President  of  the  whole  record  and  find- 
ings and  no  limitation  is  placed  upon  the  time 
which  he  may  take  in  appro\dng  or  disapprov- 
ing a  finding.  Having  the  duty  imposed  upon 
him  under  the  statute  to  approve  or  disapproA-e 
a  finding,  he  had  the  power  to  suspend  doing  so 
and  to  seek  further  information,  and  his  sus- 
pension of  July  1,  1913,  of  such  action  in  this 
case  for  one  year  on  the  findings  of  the  mental, 
moral,  and  professional  fitness  of  the  board  of 
May  8,  1913,  and  his  further  withholding,  Feb- 
ruary 16,  1914,  of  such  action  for  six  months 
subsequent  to  the  finding  to  the  same  effect 
of  the  board  of  August  19,  1914,  were  necessary 
incidents  of  his  exercise  of  the  reAde^vLng  power 
confen-ed  on  him  by  section  1502,  (22  Comp. 
Dec,  153,  citing  Jouett  v.  U.  S.,  28  Ct.  Cls., 
257,  262.) 

An  officer  became  due  for  promotion  by 
length  of  ser^dce  on  December  27,  1912;  was 
examined  by  a  board  of  medical  examiners  on 
February  15,  1913,  and  by  a  na^-al  examining 
board  on  February  19,  1913,  and  foimd  quali- 
fied by  both  boards.  In  \dew,  howe%-er,  of 
unfavorable  reports  of  fitness  in  his  case,  the 
Secretary  of  the  NaAy  recommended  and  the 
President  directed  on  April  9,  1913,  that  final 
action  on  the  findings  and  recommendations 
of  the  boards  be  suspended  for  a  period  of  one 
year,  at  the  expiration  of  which  time  he  would 
be  again  examined.  On  October  31,  1914,  he 
was  reexamined  by  a  board  of  medical  exam- 
iners and  found  not  physically  qualified  for 
promotion.  This  finding  was  approved  by  the 
President  on  November  21,  1914.  He  was  ex- 
amined by  a  naval  retiring  board  on  Decem- 
ber 21,  1914,  and  foimd  temporarily  incapaci- 
tated for  active  service,  and  on  June  12,  1915, 
was  reported  by  another  naval  retiring  board 
not  incapacitated  for  active  sendee;  both 
reports  were  approved  by  the  President.  On 
September  15,  1915,  he  was  examined  by  a 
board  of  medical  examiners  and  foimd  phj^si- 
cally  qualified  for  promotion,  but  imder  date 
of  November  17,  1915,  was  found  by  a  naval 
examining  board  to  be  not  professionally  qual- 
ified ;  both  reports  were  approved  by  the  Presi- 
dent and  the  officer  was  suspended  fi'om 
promotion  for  six  months  in  accordance  wdth 
section  1505,  as  amended.  On  July  7,  1916,  he 
was  examined  by  a  board  of  medical  examiners 
which  foimd  him  not  physically  qualified  for 
promotion  and  recommended  that  he  be  re- 
examined physically  in  six  months;  no  action 
was  taken  by  the  President  upon  this  report. 
On  January  22,  1917,  he  was  again  examined 
by  a  board  of  medical  examiners  and  found 
pnysically  qualified  for  promotion  and  on 
January  30,  1917,  a  na^-al  examining  board 
reported  him  mentally,  morally,  and  profes- 


726 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1502. 


sionally  qualified  for  promotion;  both  reports 
were  approved  by  the  President  on  April  5, 
1917.  He  was  commissioned  in  the  higher 
grade  for  which  found  qualified  \vith  date  from 
Jime  27,  1913,  six  months  after  the  date  on 
which  he  originally  became  due  for  promotion. 
The  officer  brought  suit  in  the  Court  of  Claims 
for  pay  of  the  higher  grade  from  the  date  stated 
in  his  commission,  and  the  attorney  for  the 
United  States  conceded  his  right  to  recover. 
Nevertheless  the  Court  of  Claims  decided  that 
the  officer  was  not  entitled  to  pay  from  the  date 
stated  in  his  commission,  Jime  27,  1913,  as 
authorized  by  the  act  of  March  4,  1913  (37 
Stat.,  892).  Four  opinions  were  filed  by  the 
court  in  this  case,  in  wliich  the  President's 
course  in  suspending  action  upon  the  favorable 
reports  of  the  boards  which  first  examined  the 
officer  and  foimd  him  qualified  was  construed 
as  equivalent  to  an  imfavorable  finding  by 
said  boards.  In  the  opinion  of  Hay,  J.,  it  was 
stated  with  reference  to  this  point:  "It  does  not 
appear  from  the  record  whether  the  unfavor- 
able reports  of  fitness  referred  to  professional 
or  physical  unfitness;  and  for  a  proper  deter- 
mination of  the  case  it  makes  no  difference  to 
which  they  referred.  If  he  was  physically 
unfit,  and  the  President  for  that  reason  sus- 
pended for  a  period  of  one  year  the  findings 
and  recommendations  of  the  boards,  and  di- 
rected him  to  be  examined  again  at  the  end  of 
that  period,  then  the  plaintiff  could  not  have 
been  promoted  in  pursuance  of  law  at  the  time 
he  was  examined,  nor  until  he  became  physi- 
cally qualified  *  *  *.  It  also  appears  that 
the  plaintiff  was  physically  disqualified  down 
to  June  12,  1915.  *  *  *  If  he  failed  pro- 
fessionally on  his  first  examination  and  failed 
again  on  his  reexamination,  he  is  illegally  in 
the  service  and  certainly  can  not  now  ask  for 
the  pay  of  an  office  to  which  he  is  not  entitled. 
So  whether  he  was  physically  or  professionally 
unfit  in  his  first  examination  he  has  no  stand- 
ing in  this  court."  In  the  opinion  of  Barney, 
J.,  it  Avas  said:  "As  before  stated,  the  plaintiff 
in  this  case  was  deferred  from  rank  as  chief 
machinist  for  six  months,  presumably  by 
reason  of  haAdng  failed  once  professionally  on 
an  examination,  but  was  not  deferred  from  rank 
on  advance  on  accoimt  of  physical  disability. 
*  *  *  Section  1493,  it  will  be  seen,  suspends 
him  from  promotion  automatically  during  the 
period  that  he  is  not  qualified  for  service  at  sea, 
which  of  course  is  during  the  time  he  is 
physically  disqualified  for  promotion.  Thus, 
construing  section  1493,  section  1505,  as 
amended,  and  the  act  of  March  4,  1913,  together 
the  plaintiff  was  automatically  (by  sec.  1493) 
and  actually  by  law  (act  of  Mar.  4,  1913)  sus- 
pended from  promotion  during  the  whole 
period  extending  fi'om  the  completion  of  his 
six  years'  ser\dce  as  machinist  (Dec.  29,  1912) 
to  a  date  six  months  after  his  failure  on  exam- 
ination professionally,  which  would  bring  that 
time  to  June  16,  1916,  beyond  which  his  rank 
could  not  be  extended.''  Campbell,  C.  J., 
referring  to  the  qualifications  for  promotion  of 
the  officer  at  the  time  he  originally  liecame  due, 
stated:  "Not  only  is  it  thus  made  to  appear 
that  he  was  not  qualified,  but  the  record  goes 
further  and  affirmati^-ely  shows  that  he  was 
disqualified.     To  have  promoted  him  in  the 


face  of  this  record  would  have  been  in  total 
disregard  of  section  1493."  It  was  further 
stated  in  the  opinion  last  cited:  "Up  to  Sep- 
tember 15,  1915,  the  plaintiff  had  been  found 
physically  disqualified  and  therefore  could  not 
be  promoted  because  of  the  provisions  of  sec- 
tion 1493.  *  *  *  He  was  examined  on 
July  7,  1916,  and  was  reported  incapacitated 
for  duty.  While  no  action  appears  to  have 
been  taken  by  the  President  on  the  last  report, 
the  officer  could  not  be  promoted  under  sec- 
tion 1493  in  face  of  that  report  unless  inaction 
upon  it  be  held  to  be  equivalent  to  no  report 
by  the  board.  It  was  not  until  January  22, 
1917,  that  plaintiff  qualified  under  section 
1493."  (Hooper  v.  U.  S.,  53  Ct.  Cls.,  90.)  The 
Secretary  of  the  Navy  submitted  to  the  Depart- 
ment of  Justice  a  memorandum  concerning 
this  case  mth  request  that  if  deemed  advisable 
same  be  placed  before  the  Court  of  Claims  in 
any  further  proceedings  which  might  be  had; 
motion  for  a  new  trial  was  made  by  claimant 
and  was  overruled  by  the  Court  of  Claims  be- 
fore opportunity  had  presented  for  the  Attorney 
General  to  consider  the  question  of  submitting 
said  memorandum  to  the  couit.  The  Secre- 
tary of  the  Na\^  thereupon  sul^mitted  to  the 
Court  of  Claims  certain  questions  bearing  upon 
the  action  to  be  taken  in  this  case,  for  a  ruling 
by  the  court  thereupon  under  section  148  of  the 
Judicial  Code,  and  the  court  decided  that  it 
was  -without  jurisdiction  under  that  section  to 
answer  the  questions  so  submitted.  It  was 
thereupon  decided  by  the  Na\'y  Department 
that,  as  the  case  stood,  the  ajjpointment  which 
had  been  issued  to  this  officer  was  inoperative 
and  ineffectual,  and  that  the  necessary  steps 
should  be  taken  to  issue  him  a  new  appoint- 
ment; also  that  as  the  Court  of  Claims'  decision 
appeared  to  have  been  based  principally  upon 
the  fact  that  no  final  action  had  ever  been  taken 
upon  the  first  examinations  in  this  case,  the 
records  thereof  should  be  submitted  to  the 
President  with  recommendation  that  the  find- 
ing of  the  l)oard  of  medical  examiners  that  this 
officer  was  physically  qualified  when  first 
examined  be  approved,  and  that  the  finding  as 
to  his  professional  qualifications  be  disapproA'ed ; 
which  was  accordingly  done,  and  upon  such 
action  having  been  taken  by  the  President 
the  oflScer  was  renominated,  reconfirmed,  and 
recommissioned  with  rank  from  the  same  date 
as  stated  in  his  original  commission.  (File 
26266-627:1.)  He  then  brought  suit  in  the 
Court  of  Claims  for  pay  from  date  stated  in  his 
new  commission  (Hooper  v.  U.  S.,  Ct.  Cls., 
No.  33,975),  but  this  suit  was  subsequently 
wdthdrawn  by  him  prior  to  decision. 

Approval  by  President  subject  to  recom- 
mendation of  Secretary  of  the  Navy. — 
An  officer  was  examined  for  promotion  and 
found  not  physically  qualified  therefor.  The 
Bureau  of  Medicine  and  Surgery  recommended 
that  he  "  l)e  ordered  to  naval  hospital  for  opera- 
tive treatment,  and  that  he  1  je  reexamined  when 
he  has  recovered  to  determine  his  physical  fit- 
ness for  promotion."  The  Secretary  of  the 
Na"vy,  reciting  the  recommendation  of_  the 
Bureau  of  Medicine  and  Surgery,  transmitted 
the  record  to  the  President  with  his  ad^dce 
"that  the  findings  and  recommendation  of  the 
board  of  medical  examiners  in  this  case  be 


727 


Sec.  1504. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


apjiroved,  ^vith  a  -view  to  effecting  the  recom- 
mendation of  the  Biirr'an  of  Medicine  and  Sur- 
fery  in  the  above-quoted  indorsement."  The 
'resident's  action  upon  the  record  was  as  fol- 
lows: "The  finding  and  recommendation  of 
the  board  in  this  case  are  approved."  There- 
after the  officer  was  admitted  to  the  naval 
hospital  for  operative  treatment,  after  which 
he  was  again  examined  and  found  physically 
qualified  for  promotion.  Held,  that  it  would 
be  too  strict,  if  not  a  strained  construction  of 
the  President's  action  to  say  that  he  merely 
approN'ed  the  Ihiding  of  the  Ijoard  of  medical 
examiners  when  as  a  matter  of  fact  he  had  l)e- 
fore  him  not  only  their  rejwrt  but  the  recom- 
mendation of  the  Bureau  of  Medicine  and  Sur- 
gery and  the  adAdce  thereon  of  the  Secretary 
of  the  Naw.  In  \dew  of  the  course  that  was 
subsequently  taken  it  would  seem  that  the 
construction  adopted  and  acted  upon,  that  the 
Executive  had  approved  the  recommendation 
of  the  Bureau  of  Medicine  and  Surger\'  which 
accompanied  the  report,  indorsed  as  it  was  by 
the  Secretary  of  the  Navy,  that  the  officer  be 
reexamined    after   receiving   operative    treat- 

Sec.  1503.  [No  officer  to  be  rejected  without  examination.]  No  officer  shall 
be  rejected  until  after  such  public  examination  of  himself  and  of  the  records  of 
the  Navy  Department  in  his  case,  unless  he  fails,  after  having  been  duly  notified, 
to  appear  before  said  board. — (21  April,  1864,  c.  63,  s.  3,  v.  13,  p.  53.) 


ment,  can  not  be  said  under  the  facts  of  the  case 
to  have  been  an  unreasonable  construction. 
Accordingly  the  officer  did  not  lose  any  right 
to  be  promoted  to  the  vacancy  for  which  first 
examined  Avith  rank  from  date  of  said  vacancy. 
(Do\vnes  v.  U.  S.,  52  Ct.  Cls.,  237;  compare  22 
Comp.  Dec,  565,  591,  646.) 

Revocation  of  President's  action. — See 
note  to  section  1456,  Revised  Statutes,  under 
"Revocation  of  President's  action."  See  also 
examining  board  record  in  case  of  Lieut. 
(Junior  Grade)  Harold  W.  Scofield,  United 
States  Navy,  and  iile  2(i2(R)-G133,  April  26,  1919. 

Jurisdiction  of  Civil  Courts. — The  pro- 
ceedings of  an  examining  board  to  determine  the 
qualifications  of  an  officer  of  the  Army  for  pro- 
motion can  not  be  reviewed  by  the  civil  courts 
by  v\Tit  of  certiorari.  The  decision  of  the  board 
is  not  final  but  must  be  reported  vdth  the  pro- 
ceedings to  the  President,  and  may  be  approved 
or  disapproved  by  him.  This  is  the  only  relief 
from  the  errors  or  the  injustice  that  may  be  done 
bv  the  board  which  is  provided.  (Reaves  v. 
Amsworth,  219  U.  S.,  296,  306.) 


Statute  held  to  be  mandatory. — ^The  lan- 
guage of  the  section,  "'no  officer  shall  l)e  rejected 
until  after  such  pulilic  examination  of  himself," 
refers  manifestly  to  the  previous  sections  giving 
him  the  right  to  appear  and  be  examined  under 
oath;  and  it  is  this  personal  examination  which 
must  be  had  in  every  case  liefore  an  adverse 
finding,  or  which  is  the  same  thing,  before  the 
officer  can  be  rejected.  These  provisions 
make  it  certain,  first,  in  ev^ery  case  the  officer 
has  a  right  to  be  present  at  his  examination; 
second,  in  every  case  he  must  be  duly  notified 
of  the  time  and  place  of  his  examination  and 
unless  he  waives  his  right  or  expresses  a  lack 
of  desire  to  be  present,  he  must  l)e  giv^en  leave 
of  absence  or  permission  to  attend;  and  third, 
no  finding  of  the  l)oard  adverse  to  his  qualifica- 
tions for  promotion  can  be  made  without  a  per- 
sonal examination  of  the  ofiicer  himself  unless 
he  fails  to  appear  after  having  been  duly  notified 
to  do  so.  The  proceedings  of  an  examining 
board  are  fatally  irregular  and  defective  where 
the  officer  being  at  the  time  in  the  performance 
of  his  duty  on  shipboard  under  orders  of  his 
superior  officer,  was  not  notified  of  the  time  and 
place  of  his  examination  for  promotion  and  was 
not  given  and  did  not  have  an  opportunity  or 
permission  to  exercise  his  right  to  appear  and 
be  heard  at  such  examination,  and  nevertheless 


said  board  of  examiners  rejected  said  officer 
and  his  application  for  promotion  without  any 
examination  of  himself,  although  he  had  not 
failed  "to  appear,  after  being  dulv"  notified, 
before  said  board."     (27  Op.  Atty.  Gen.,  251.) 

Wliile  the  expression,  "no  officer  shall  be 
rejected  until,"  etc.,  is  not  the  most  apt  to 
express  the  idea  intended,  yet  the  meaning 
of  the  section  is  1)oth  certain  and  plain.  For 
the  only  matter  or  thing  which  this  board  can 
"reject"  or  allow  or  pass  upon  at  all  is  the 
application,  claim,  or  right  of  the  officer  to 
promotion,  involv  ing  of  course  his  fitness  there- 
for. The  board  can  do  but  one  of  two  things, 
find  the  officer  (jualified  and  recommend  his 
promotion  or  find  him  not  qualified  and  fail 
to  recommend  his  promotion.  The  latter  is 
the  only  possilile  way  in  which  an  officer  can 
be  "rejected,"  and  when  the  board  thus  finds 
that  the  officer  is  not  (jualified  and  that  they  do 
not  recommend  him  for  promotion,  the  officer 
is  "rejected"  within  the  meaning  of  this  sec- 
tion. And  this  is  what  the  section  says  shall 
not  be  done  without  the  personal  examination 
of  the  officer  or  his  failure  to  appear  after  being 
duly  notified  to  do  so.    (27  Op.  Atty.  Gen.,  251.) 

For  other  cases,  see  note  to  section  1500, 
Revised  Statues. 


Sec.  1504.    [Report  of  recommendation.]    Such  examining  board  shall  report 
their  recommendation  of  any  officer  for  promotion  in  the  following  form:  "We 

hereby  certify  that has  the  mental,  moral,  and  professional 

qualifications  to  perform  efficiently  all  the  duties,  both  at  sea  and  on  shore,  of 
the  grade  to  which  he  is  to  be  promoted,  and  recommend  him  for  promotion." — 
(16  July,  1862,  c.  183,  s.  4,  v.  12,  p.  584.  As  amended  by  21  April,  1864,  c.  63, 
s.  4,  V.  13,  p.  53.     28  July,  1866,  c.  312,  s.  1,  v.  14,  pp.  344,  345.) 

728 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1505. 


Form  of  report  by  naval  examining 
board. — By  act  of  May  22,  1917,  section  20 
(40  Stat.,  89),  it  was  pro^dded  "that  hereafter 
all  laws  relating  to  the  examination  of  officers 
of  the  Navy  for  promotion  shall  be  construed 
to  apply  to  the  regular  advancement  of  staff 
officers  to  higher  ranlcs  on  the  acti-ve  list  the 
same  as  though  such  advancements  in  rank 
were  promotions  to  higher  grades:  Provided, 
That  examinations  for  such  staff  officers  shall 
not  be  required  except  for  such  regular  advance- 
ments in  rank."  Naval  Courts  and  Boards, 
1917  (p.  439),  prescrilwd  the  form  of  report  by 
naval  examining  lioards  in  the  cases  of  candi- 
dates found  qualified  for  promotion,  as  follows: 

"We  hereby  certify  that  Lieutenant  H 

C.   E ,  U.    S.    Navy,    has    the    mental, 


moral,  and  professional  qualifications  to  per- 
form efficiently  all  the  duties,  both  at  sea 
and  on  shore,  of  the  grade  (grades)  to  which 

he  is  to  be  promoted,  to  wit: (and ) 

and  recommend  him  for  promotion."  By 
Changes  in  Naval  Courts  and  Boards,  1917, 
No.  1,  of  March  16,  1918,  the  foregoing  form 
was  changed  by  inserting  after  the  word 
"(grades)"  the  words  "(or  rank),"  and  by 
striking  out  the  words  "to  which  he  is  to  be 
promoted,"  and  inserting  in  place  thereof 
the  words  "for  promotion  to  wMch  he  is  a 
candidate."  By  Changes  in  Naval  Courts  and 
Boards,  1917,  No.  2,  the  words,  "  for  promotion 
to  which  he  is  a  candidate,"  were  stiicken  out, 
and  the  words  used  in  section  1504,  "to  which 
he  is  to  1)6  promoted,"  were  restored. 


Sec.  1605.  [Failing  in  examination.]  Any  officer  of  the  Navy  on  the  active 
list  below  the  rank  of  commander  who,  u]ion  examination  for  promotion,  is 
found  not  professionally  qualified,  shall  be  suspended  from  promotion  for  a 
period  of  six  months  from  the  date  of  approval  of  said  examination,  and  shall 
suffer  a  loss  of  numbers  equal  to  the  average  six  months'  rate  of  promotion  to 
the  grade  for  which  said  officer  is  undergoing  examination  during  the  five  fiscal 
years  next  preceding  the  date  of  approval  of  said  examination,  and  upon  the 
termination  of  said  suspension  from  promotion  he  shall  be  reexamined,  and  in 
case  of  his  failure  upon  such  reexamination  he  shall  be  dropped  from  the  service 
with  not  more  than  one  year's  pay:  Provided,  That  the  provisions  of  this  Act 
shall  be  effective  from  and  after  January  first,  nineteen  hundred  and  eleven. 


This  section  was  amended  and  reenacted  to 
read  as  above  by  act  of  March  11,  1912  (37 
Stat.,  73).     As  originally  enacted  it  read 
as  follows: 
"Sec.  1505.  Any  officer  of  the  Navy  on  the 
active  list  below  the  grade  of  commander, 
who,  upon  examination  for  promotion,  is 
not  found  professionally  qualified,  shall  be 
suspended  from  promotion  for  one  year, 
with  corresponding  loss  of  date  when  he 
shall  be  re-examined,  and  in  case  of  his 
failure  upon  such  re-examination  he  shall 
be  dropped  from  the  service."     (15  July, 
1870,  c.  295,  s.  8,  v.  16,  p.  333.) 
Further  amendment  to  this  section  was  made  by 
act  of  August  29,  1916  (39  Stat.,  579),  pro- 
viding for  promotion  by  selection  of  line 
officers  in  the  grades  of  lieutenant  com- 
mander, commander,  and  captain,  which 
act  provided  that  should  officers  so  selected 
fail  in  their  professional  examination  they 
"shall  thereafter  be  ineligil)le  for  selection 
and  promotion.  "     This  law  v/as  extended 
to  staff  officers  of  the  Navy  by  act  of  July 
1,  1918  (40  Stat.,  718). 
Construction  of  section  1505  prior  to 
amendment. — -The    words   in    section    1505, 
"shall  be  suspended  from  promotion  for  one 
year,  \vith  corresponding  loss  of  date, "  do  not 
mean  that  the  loss  of  date  is  to  be  contem- 
poraneous with  the  term  of  suspension  but  only 
that  it  shall  agree  therewith  in  point  of  dura- 
tion.   Accordingly,  where  a  lieutenant  in  the 
Navy,  being  the  senior  ofticer  of  his  grade, 
became  entitled  to  examination  for  promotion 
to  fill  a  vacancy  in  the  next  higher  grade  (lieu- 
tenant commander)   which  occurred  January 


22,  1880,  and  afterwards  upon  examination 
failed  to  pass  and  the  findings  of  the  examining 
board  were  approved,  February  6, 1880,  by  the 
President,  who  dii-ected  that  the  officer  "be 
suspended  from  promotion  for  one  year,  with 
corresponding  loss  of  date, "  held  that  the  loss 
of  date  of  the  officer  is  one  year,  to  be  reckoned 
from  the  occurrence  of  the  vacancy,  January  22, 
1880,  the  date  from  which  he  would  have  taken 
rank  as  lieutenant  commander  had  he  been 
found  qualified  for  promotion,  and  that  his 
year  of  suspension  is  to  be  reckoned  from  the 
approval  by  the  President  of  the  findings  of  the 
examining  boards,  February  6,  1880.  In  this 
case,  as  the  officer,  by  reason  of  his  suspension, 
is  ineligible  for  promotion  during  the  whole  of 
the  year  commencing  February  6,  1880,  no  va- 
cancy should  be  kept  open  for  him  until  Feb- 
ruary 6,  1881.  Such  vacancies  as  happen  to 
exist  during  that  period  the  officers  who  are 
then  eligible  for  promotion  are  entitled  to  fill. 
But  as  his  loss  of  date  is  only  to  be  one  year 
from  January  22,  1880,  if  on  liis  second  exam- 
ination he  shall  be  found  qualified  to  fill  a 
vacancy  in  the  next  higher  grade  which  occurred 
after  the  period  of  his  suspension,  he  will  be 
entitled  upon  promotion  thereto  to  take  rank 
in  such  grade  as  of  the  date  of  January  22,  1881; 
he  will  not,  however,  be  entitled  to  the  pay  of 
the  higher  grade  from  the  ranking  date  in  his 
commission,  as  his  case  is  not  one  covered  by 
section  1562,  Revised  Statutes.  (16  Op.  Atty. 
Gen.,  587;  pay  of  officers  on  promotion  from 
date  stated  in  their  commissions  is  now  provided 
for  by  act  of  Mar.  4,  1913,  37  Stat.,  892.) 

If  it  were  held  that  thf  loss  of  date  is  to  com- 
mence from  the  time  when  the  President  ap- 


729 


Sec.  1505. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


proved  the  findings  of  the  examining  boards, 
the  ollicer  might  practically  lose  much  more 
than  a  year  in  date,  as  under  some  circumstances 
there  may  be  considerable  delay  in  the  adjudi- 
cation of  his  case.  On  the  other  hand,  if  the 
suspension  is  to  date  from  the  time  of  the  oc- 
currence of  the  original  vacancy,  it  is  easy  to 
conceive  of  cases  in  which  the  otiicer  suspended 
would  not  have  the  time  which  it  was  the  inten- 
tion of  the  statute  to  allow  him  in  order  to  re- 
pair the  deficiencies  in  his  professional  qualifi- 
cations. If  upon  his  second  examination  he 
fails,  the  officer  is  to  be  dropped  from  the  rolls 
of  the  Navy;  and  in  making  provision  for  sus- 
pension and  for  reexamination  it  was  clearly 
intended  that  a  considerable  time  should  elapse 
between  the  commencement  of  the  suspension 
and  the  time  when  he  could  be  ordered  for  re- 
examination. For  the  period  of  the  year  of 
suspension  the  officer  is  out  of  the  ser\-ice  so  far 
as  promotion  is  concerned.  As  he  is  ineligible 
for  promotion  during  the  whole  year,  no  va- 
cancy should  be  kept  open  for  him  until  ex- 
piration of  that  period.  Such  vacancies  as 
occur  the  ofiicers  who  are  then  eligible  are  enti- 
tled to  fill;  and  it  is  the  ob\-ious  intention  of 
Congress  that  such  positions  shall  be  filled,  as 
they  are  created  not  for  the  benefit  of  officers 
but  for  the  needs  of  the  public  service.  (16  Op. 
Atty.  Gen.,  587.) 

Section  1505,  prior  to  its  amendment,  required 
that  professional  failure  of  an  officer  below  the 
grade  of  commander  be  followed  by  suspension 
"from  promotion"'  for  one  year  with  corres- 
ponding '  ■  loss  of  date, "  or  a  one-year  loss  of  date 
and  a  subsequent  reexamination.  Under  the 
construction  which  was  placed  upon  it,  the 
year  of  suspension  "from  promotion"  began  to 
run  from  the  date  of  the  President's  approval  of 
the  finding  by  a  naAal  examining  board  of  pro- 
fessional disqualification  of  an  officer  for  promo- 
tion; on  the  other  hand,  the  year  of  "loss  of 
date"  began  to  run  from  the  retroactiA-e  date  of 
the  vacancy  for  which  the  officer  was  examined 
and  found  disqualified  to  fill  (citing  16  Op. 
Atty.  Gen.,  587;  25  Op.  Atty.  Gen.,  568;  20 
Comp.  Dec,  199,  etc.).  The  year  of  suspen- 
sion "from  promotion"  and  the  year  of  "loss  of 
date"  were  different  years  and  covered  differ- 
ent periods  of  time,  the  former  running  from  one 
date,  the  latter  from  another,  and  the  two  per- 
iods being  separate  and  distinct.  The  period 
of  suspension  "from  promotion"  was  the  period 
which  affected  the  right  of  the  oflicer  to  the  pay 
of  the  higher  office  for  which  he  had  failed  to 
qualify,  in  that  it  postponed  for  a  year  his  reex- 
amination to  that  office,  which  in  turn  affected 
the  })articular  vacancy  in  said  higher  office  to 
which  upon  eventually  passing  the  examina- 
tions as  required  by  law  he  would  become  en- 
titled to  be  appointed  or  promoted.  During 
said  year  of  suspension  from  promotion  no  va- 
cancy in  the  higher  office  could  be  kept  open 
for  him,  and  upon  his  subsequently  passing  the 
examination  he  could  only  be  appointed  to  a 
vacancy  that  was  in  existence  during  the  year 
in  the  event  there  remained  one  to  which  the 
right  of  no  other  officer  had  attached.  On  his 
appointment  to  such  a  vacancy  or  a  subsequent 
one  he  became  entitled  to  the  rank  of  the  higher 
office  for  pay  pujqjoses  for  the  retroactiAe  period 
i'rom  the  date  of  appointment  back  to  the  date 


of  the  vacancy  he  was  entitled  to  fill  or  in  other 
words  to  the  pay  of  the  higher  oflice  from  the 
date  of  such  vacancy  if  an  officer  covered  by  the 
act  of  June  22,  1874  (18  Stat.,  191).  His  "loss 
of  date"  on  the  other  hand  operated  to  reduce 
him  in  number  on  the  list  which  in  turn  oper- 
ated to  delay  his  right  to  promotion  to  the  grade 
above  the  one  from  which  he  had  been  sus- 
pended from  promotion  because  of  his  being 
relegated  by  said  loss  of  numbers  to  a  lower 
place  in  the  list  than  he  othemise  would  have 
occupied.  It  had  no  effect  on  his  rank  for  pay 
purposes  to  the  office  from  which  he  had  been 
suspended  (22  Comp.  Dec,  623,  citing  16  Op. 
Atty.  Gen.,  587,  592). 

Where  a  vacancy  occurring  February'  2,  1895, 
was  held  open  for  an  officer  during  his  year  of 
suspension,  after  which  he  was  again  examined 
and  was  promoted  to  fill  said  vacancy  with 
rank  from  February  2,  1896,  one  year  after  the 
vacancy  occurred,  held  that  he  was  not  entitled 
to  be  promoted  to  said  vacancy  but  should  have 
been  promoted  to  the  first  vacancy  occurring 
after  the  expiration  of  his  year  of  suspension; 
and  that  he  can  not  be  allowed  pay  in  the 
higher  grade  until  the  date  that  the  latter  va- 
cancy occurred.     (6  Com.  Dec,  17.) 

Method  of  executing  loss  of  numbers. — 
Under  section  1505,  as  it  originally  read,  an  of- 
ficer suspended  from  promotion  by  reason  of 
failure  on  examination,  although  subjected  to 
a  loss  of  numbers  greater  than  at  present,  did 
not  lose  his  position  as  the  senior  officer  in  his 
grade  during  his  period  of  suspension.  In 
other  words,  the  officer  while  under  suspension 
was  nevertheless  carried  at  the  top  of  his  grade, 
his  loss  of  numbers  being  accomplished  by  the 
advancement  over  him  of  his  juniors  in  grade 
who  successfully  qualified  for  promotion  diu"- 
ing  the  period  of  one  year  from  the  date  of  the 
vacancy  to  which  he  would  have  been  advanced 
had  he' qualified  therefor  (citing  file  26521-40, 
June  11.  1912);  the  amendment  of  March  11, 
1912,  was  intended  to  reduce  the  period  of  sus- 
pension from  one  year  to  six  months,  and  to 
mitigate  the  loss  of  numbers;  also  it  proxided 
that  if  the  officer  failed  upon  reexamination  he 
should  be  dropped  from  the  service  Arith  not 
mot;e  than  one  year's  pay^  instead  of  being  dis- 
charged without  any  additional  pay  as  was  for- 
merly the  case.  Accordingly,  the  whole  pur- 
pose of  the  amendment  was  to  mitigate  the 
penalties  previously  prescribed  by  law  for  fail- 
ure of  an  olficer  to  qualify  for  promotion  and  not 
to  add  new  penalties  or  to  increase  those  already 
required.  The  administrative  practice  of  the 
NaA^  Department,  adopted  upon  the  amend- 
ment, was  to  reduce  the  officer  in  his  grade 
while  under  suspension  according  to  the  loss  of 
numbers  suffered,  thereby  imposing  upon  him 
a  loss  of  seniority  in  grade  while  under  suspen- 
sion which  he  did  not  suffer  under  the  former 
laws,  thus  adding  a  new  penalty  to  that  for- 
merly proAided.  This  practice,  in  the  caseof 
officers  promoted  by  seniority,  created  an  in- 
consistency between  the  period  of  suspension 
and  the  loss  of  numbers,  which  in  many  in- 
stances would  operate  to  increase  the  period  of 
suspension  beyond  the  six  months  provided  for 
by  Congress;  also  in  the  case  of  officers  pro- 
moted by  length  of  service  it  necessitated, 
first,  reducing  the  officer  below  those  who  were 


730 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1605. 


eventually  to  rank  him,  secondly,  advancing 
him  over  the  heads  of  such  officers  as  had  not 
been  promoted  when  his  term  of  suspension  ex- 
pii-ed,  and  third,  holding  him  at  the  foot  of  the 
higher  grade  when  so  advanced  until  the  officers 
whom  he  had  j  limped  should  be  advanced  over 
him.  These  objections  would  be  obviated  by 
reverting  to  the  practice  which  was  in  force  un- 
der section  1505  as  it  originally  read,  \iz,  let- 
ting the  officer  retain  his  position  at  the  top  of 
his  grade  during  his  period  of  suspension  and 
advancing  his  juniors  over  him  until  his  total 
loss  of  numbers  had  been  consummated; 
should  his  period  of  suspension  expire  in  the 
meantime,  under  this  practice  he  would  be  pro- 
moted if  qualified  and  then  mark  time  at  the 
foot  of  the  next  higher  grade  until  the  other  of- 
ficers entitled  to  rank  him  in  consequence  of 
his  loss  of  numbers  had  been  advanced  over 
him.     (File  26260-3091: 1,  Nov.  3,  1915.)_ 

While  legal  and  fully  in  accordance  with  the 
spirit  and  purpose  of  the  law  to  execute  the 
total  loss  of  numbers  by  having  the  officer 
mark  time  during  his  period  of  suspension 
while  his  juniors  are  advanced  over  him  until 
the  total  loss  of  numbers  has  been  consummated, 
the  former  pi-actice  of  reducing  the  officer  in 
grade  during  the  period  of  suspension,  which 
was  adopted  after  the  amendment  of  March  11, 
1912,  was  not  illegal;  the  law  permits  of  either 
practice,  and  it  was  well  within  the  discretion 
of  the  Navy  Department  to  execute  the  total 
loss  of  niunbers  immediately  upon  commence- 
ment of  the  period  of  suspension,  as  it  has  done. 
It  follows  that,  notwithstanding  a  change  in 
this  practice,  the  action  taken  in  past  cases,  not 
being  illegal,  should  not  be  disturbed  where 
the  officers  concerned  have  already  been  pro- 
moted and  commissioned.  (File  26260-3091:1, 
Nov.  3,  1915.) 

The  fact  that  the  loss  of  numbers  which  an 
officer  is  required  to  suffer  under  section  1505,  as 
amended,  is  to  "equal  the  average  six  months' 
rate  of  promotion  to  the  grade  for  which  said 
officer  is  undergoing  examination"  would  seem 
to  indicate  that  the  loss  of  nmnbers  is  to  be 
suffered  in  the  higher  grade,  while  a  loss  of 
numbers  in  his  present  grade  and  an  immediate 
promotion  to  a  higher  grade  would  be  of  no 
practical  effect  so  far  as  loss  of  numbers  is  con- 
cerned. It  would  seem,  therefore,  that  an 
assistant  surgeon  advanced  under  such  cir- 
cumstances to  the  lowest  number  in  the  grade 
to  which  he  is  thus  promoted  must  be  held 
stationaiy  at  that  nmnber  until  the  officers  be- 
low him,  corresponding  to  the  niunbers  he  has 
lost,  have  been  advanced  over  him  in  said 
higher  grade.  (Toulon  v.  U.  S.,  51  Ct.  Cls., 
87,  96;  see  also  file  26280^68,  Mar.  18, 1916.) 

The  loss  of  numbers  is  determined  by  the 
condition  of  the  Navy  Register  at  the  date  the 
suspension  becomes  effective;  thus,  where  an 
officer  is  required  to  lose  nine  numbers  in  con- 
sequence of  his  failure,  these  numbers  are  rep- 
resented by  the  nine  officers  who  were  next 
below  him  m  grade  on  the  date  that  his  suspen- 
sion went  into  effect,  and  if  any  casualties 
occur  within  these  nine  numbers  he  would 
benefit  thereby.  (File  26260-3091:1,  Nov.  3, 
1915.) 

Under  the  amendment  of  March  11,  1912, 
only  promotions  actually  made  during  the  five 


calendar  years  in  question  should  be  taken  as 
a  basis  for  determining  the  "average  six  months' 
rate  of  promotion"  during  said  years.  It 
would  be  contrary  to  the  letter  and  spirit  of 
the  law  to  take  as  a  basis  "the  rate  of  duly 
slated  promotions,  which  would  include  both 
actual  promotions  made  and  promotions  that 
were  due  to  be  made  but  were  not  owing  to 
failure  of  officers  to  qualify  therefor, "  resigna- 
tions, retirements,  etc.  The  latter  method 
would  not  furnish  a  correct  basis  for  determin- 
ing the  average  "rate  of  promotion,"  which 
necessarily  implies  the  consummated  advance- 
mentof  officers  to  higher  grades.  (File  26521-40, 
June  11,  1912.) 

Ensign  A  became  due  for  promotion,  was  ex- 
amined and  suspended  in  the  latter  part  of  the 
fiscal  year  1911;  Ensign  B,  his  junior,  became 
due  for  promotion,  was  examined,  and  sus- 
pended in  the  early  part  of  the  fiscal  year  1912. 
In  consequence  it  was  necessary  to  count  differ- 
ent periods  of  five  years  in  computing  the  loss 
of  numbers  which  these  officers  were  to  sustain. 
As  a  result.  Ensign  A  lost  34  numbers,  while 
Ensign  B,  his  junior,  lost  only  33.  This  pro- 
duced the  apparent  injustice  of  making  Ensign 
B  rank  Ensign  A  in  the  higher  grade  when  pro- 
moted, thereljy  l)ecoming  senior  to  the  officer 
who  originally  ranked  him.  However,  this  re- 
sult necessarily  follows  from  the  wording  of  the 
law,  and  can  be  remedied  only  by  Congress. 
(File  26521-40,  June  11,  1912.) 

Date  of  rank  on  promotion  after  sus- 
pension.— ^An  officer  due  for  promotion  after 
a  specified  period  of  service,  wdio  is  suspended 
from  promotion  for  a  period  of  six  months 
should,  if  afterwards  promoted,  be  given  rank 
from  a  date  six  months  later  than  that  on  which 
he  first  became  due  for  promotion.  (File 
26260-2605:2,  Aug.  17,  1915.) 

An  officer  due  for  promotion  \ry  reason  of 
seniority  who  is  suspended  from  promotion  .for 
a  period  of  six  months  should,  if  afterwards  pro- 
moted, begivenrank from tliedateon which  the 
vacancy  occurred  which  he  is  promoted  to  fill, 
provided  such  vacancy  did  not  occur  during  the 
six  months'  period  of  suspension.  (File  26260- 
2605:2,  Aug.  17,  1915.) 

An  officer  due  for  promotion  by  reason  of 
seniority  who  is  suspended  from  promotion  for 
a  period  of  six  months  should,  if  afterwards  pro- 
moted, be  given  rank  from  the  date  that  the  pe- 
riod of  suspension  expired,  where  the  vacancy 
which  he  is  promoted  to  fill  occurred  during  the 
six  months'  period  of  suspension.  (File  26260- 
2605:2,  Aug.  17,  1915.) 

In  the  case  of  ensigns  who  are  promoted  in  due 
course  after  three  years'  service  from  date  of 
commission  as  such,  it  is  proper  in  routine  cases 
that  the  date  from  which  they  are  to  take  rank 
on  promotion  to  1  ieutenant  ( j  unior  grade )  should 
be  three  years  later  than  the  date  from  which 
they  took  rank  in  the  grade  of  ensign.  Where, 
however,  an  ensign  fails  on  examination  for  pro- 
motion it  is  expressly  stipulated  by  law  that  he 
"shall  be  suspended  from  promotion  for  a  pe- 
riod of  six  months  from  the  date  of  approval  of 
said  examination."  The  effect  of  this  is  to 
postpone  the  officer's  right  to  promotion  for  a 
period  of  six  months,  and  consequently  to  fix  a 
later  date  from  which  he  is  to  take  rank  if  finally 
promoted  than  would  have  been  the  case  had  he 


54641°— 22- 


-47 


731 


Sec.  1505. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


qualified  in  due  course  when  first  examined. 
If  the  first  examination  of  such  officer  has  been 
(h^hiyed  without  fault  on  his  part,  in  justice  and 
fair  dealing  the  date  from  which  he  should  take 
rank  when  ultimately  promoted  may  be  fixed  as 
six  months  from  the  date  from  which  he  would 
have  been  promoted  had  he  been  found  quali- 
fied when  first  examined,  or  as  three  years  and 
six  months  later  than  the  date  from  which  he 
took  rank  in  the  grade  of  ensign.  But  in  no  case 
could  an  officer  who  has  been  suspended  from 
promotion  on  account  of  failing  in  his  profes- 
sional examination  be  entitled  to  take  rank 
from  the  same  date  when  promoted  to  the  higher 
grade  as  though  he  had  not  been  suspended. 
(File  26268-475,  May  14,  1915.) 

Two  classes  of  cases  arise  under  this  section, 
\iz,  first,  those  in  which  promotions  depend 
upon  length  of  servdce,  and,  secondly,  those  in 
which  promotions  depend  upon  seniority.  In 
file  26266-475,  of  May  14,  1915,  it  was  held  that 
the  effect  of  section  1505  as  applied  to  the  case 
of  an  ensign  who  failed  on  examination  for  pro- 
motion to  lieutexiant  (junior  grade)  was  to  delay 
the  right  of  such  ensign  to  promotion  for  a  period 
of  six  months,  and  that  when  ultimately  pro- 
moted he  is  entitled  to  take  rank  only  from  the 
date  he  completed  three  years  and  six  months 
eervace  in  the  grade  of  ensign.  On  reconsidera- 
tion this  conclusion  affirmed  as  the  only  inter- 
pretation of  the  law  which  would  give  effect  to 
its  purpose  and  letter  as  applied  to  these  cases 
in  which  promotions  depend  upon  length  of 
service  and  not  upon  the  officer's  position  in  the 
Na\-y  list.  As  to  the  second  class,  where  pro- 
motions are  made  by  seniority,  if  the  loss  of 
numbers  is  executed  by  reducing  the  officer  in 
the  lower  grade  [see  above,  ''Method  of  execut- 
ing loss  of  numbers  "]  his  right  to  promotion  de- 
pends upon  the  occurrence  of  a  vacancy  after 
he  has  again  reached  the  top  of  the  list,  and  he 
should  be  promoted  to  fill  said  vacancy,  if 
found  qualified,  and  should  take  rank  froru  the 
date  of  its  occurrence.  (File  26260-2605:2, 
Aug.  17,  1915.) 

Should  an  officer  due  for  promotion  by  senior- 
ity to  a  grade  limited  in  numl^er  by  law,  be  sus- 
pended from  promotion  and  the  loss  of  numbers 
in  his  case  executed  by  reducing  him  in  the 
lower  grade  [see  above,  "'Method  of  executing 
loss  of  numbers  "],  he  might  again  reach  the  top 
of  his  grade  prior  to  the  expiration  of  his  six 
months'  period  of  suspension;  in  such  event, 
the  next  vacancy  occurring  after  he  reaches  the 
top  of  the  list  should  be  held  open  for  him  iintil 
the  expiration  of  his  period  of  suspension;  but 
should  he  be  promoted  at  the  end  of  that  period 
he  should  take  rank  from  the  date  that  his  six 
months' period  of  suspension  expired.  In  other 
words,  the  officer's  promotion  in  such  case  de- 
pends upon  his  position  in  his  grade;  when  he 
reaches  the  top  of  the  list  he  is  entitled  to  the 
next  vacancy,  whether  or  not  his  six  months' 
period  of  suspension  has  expired;  however, 
under  the  express  terms  of  the  law  his  promo- 
tion can  not  actually  be  accomplished  during 
the  period  of  six  months  and  inasmuch  as  the 
delay  in  his  examination  is  due  to  fault  on  his 
part  and  therefore  is  not  a  case  covered  by 
section  1562,  Revised  Statutes,  when  he  is  in 
fact  promoted  the  earliest  date  which  he  may 
be  given  in  his  commission  is  that  on  which 


he  became  eligible  for  reexamination.  (File 
26260-2605:2,  Aug.  17,  1915.) 

\Mien  an  oflicer  due  for  promotion  by  sen- 
iority to  a  grade  limited  in  number  by  law  is 
suspended  and  subsequently  is  promoted  to 
fill  a  vacancy  occuning  after  the  expiiation  of 
his  period  of  suspension,  there  is  no  wan-ant  of 
law  for  gi\'ing  him  a  date  of  rank  prior  to  the 
occiuTence  of  such  ^•a(•ancy.  An  officer  may 
be  given  any  date  subsequent  to  the  occurrence 
of  the  vacanc y  which  he  is  promoted  to  fill  but 
can  not  be  given  a  date  prior  thereto.  Accord- 
ingly in  such  cases,  where  the  vacancy  occurs 
duiing  the  six  months'  period  of  suspension,  and 
the  officer's  loss  of  numbers  has  been  executed 
by  reducing  him  in  the  lower  grade  [see  above, 
"Method  of  executing  loss  of  numbers"],  his 
date  of  promotion  may  legally  be  fixed  to  cor- 
respond with  the  date  that  the  period  of  sus- 
pension expired,  but  where  the  vacancy 
occuiTed  after  the  expiration  of  the  six  months' 
period  of  suspension,  the  officer  when  promoted 
can  not  legally  be  given  a  date  prior  to  the 
occitrrenceof  the  vacancy.  (File  26260-2605 :2, 
Aug.  17,  1915.) 

An  officer  became  due  for  promotion  after 
three  years'  service  in  gi'ade.  At  that  time 
he  was  absent  on  distant  duty,  by  reason  of 
which  his  examination  for  promotion  was  de- 
layed for  a  period  of  about  ten  months.  He 
then  failed  professionally  and  was  suspended 
from  promotion  for  six  months,  after  which  he 
was  examined,  found  qualified,  and  promoted: 
Held  that  under  section  1505,  Revised  Statutes, 
as  amended,  the  officer  when  promoted  was 
entitled  to  take  rank  in  the  higher  gi'ade  from 
a  date  six  months  later  than  that  on  which  he 
originally  became  due  for  promotion.  "We 
should  not  impose  a  greater  penalty  than  the 
statute  fixes,  as  would  be  done  if  he  is  charged 
with  the  long  delay  for  which  he  was  not  at 
fault. "    (Toiilon  v.  U.  S.,  51  Ct.  Cls.,  87,  96.) 

The  Court  of  Claims  can  not  accept  the  view 
of  the  Comptroller  of  the  Ti'easmy  that  because 
of  an  officer's  failure  to  qualify  professionally 
in  his  first  examination,  and  because  of  the 
suspension  for  six  months  demanded  by  section 
1505,  as  amended,  he  became  ineligible  for 
promotion  until  after  he  had  successfully  passed 
a  second  examination  and  that  therefore  he 
was  not  and  could  not  be  advanced  in  grade  or 
rank  pursuant  to  law  prior  to  that  date.  This 
construction  of  the  statute  would  not  only 
suspend  the  officer's  right  to  promotion  for  the 
six  months  stated  in  the  act  but  also  would 
defeat  or  wipe  out  the  fact  that  he  had  been 
eligible  to  promotion  for  some  ten  or  more 
months  extending  from  the  termination  of  his 
three  years'  ser^•ice  to  the  beginning  of  the  six 
months'  period  of  suspension,  though  the  delay 
in  his  first  examination  was  owing  to  an 
enforced  absence  and  was  wholly  without  his 
fault.  On  the  contraiy  we  think  that  the 
officer  became  eligible  for  promotion  to  the 
higher  grade  and  rank  when  he  had  sei'\'ed 
three  years  in  the  grade  of  assistant  surgeon 
and  there  was  added  to  that  term  a  period  of 
six  months,  covering  the  time  of  his  suspen.sion 
under  the  statute.  In  other  words  on  account 
of  his  failure  to  cjualify  when  first  examined 
the  length  of  ser^■ic■e  in  his  grade  requii'ed  of 
him  before  he  was  eligible  for  promotion  to  the 


732 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1505. 


next  higher  grade  was  the  equivalent  of  three 
years  and  six  months  instead  of  the  three  years 
which  would  otherwise  have  sufficed  and  in 
fixing  the  date  of  his  eligibility  to  promotion 
in  rank  these  three  years  and  six  months  are 
properly  taken  as  a  continuous  period  of  time. 
(Toulon  V.  U.  S.,  51  Ct.  Cls.,  87,  90;  see  in 
this  connection  22  Comp.  Dec,  623,  disallowing 
claim  of  S.  R.  Canine  for  pay  as  lieutenant 
(junior  grade)  from  date  stated  in  his  commis- 
sion, and  52  Ct.  Cls.,  532,  allowing  said  claim 
without  opinion.) 

The  requirement  of  the  statute  that  the 
suspension  shall  be  for  a  period  of  six  months 
'  'from  the  date  of  approval  of  said  examination  " 
is  evidently  intended  to  remove  any  uncer- 
tainty which  would  otherwise  arise  if  the  ques- 
tion were  whether  the  suspension  dated  fa-om 
the  time  of  examination  or  the  approval  by 
the  President  of  the  examining  board's  report. 
A  considerable  time  could  arise  between  these 
two  events,  and  the  statute  makes  certain  the 
date.  Manifestly  such  suspension  should  op- 
erate equally  upon  the  officer's  actual  appoint- 
ment and  any  advancement  in  grade  or  rank. 
But  it  would  operate  unequally  if  he  should 
be  suspended  from  appointment  for  six 
months  and  suspended  from  advancement  in 
grade  or  rank  for  the  sixteen  months  between 
the  date  when  he  first  became  eligible  and  the 
time  of  his  reexamination.  The  six  months' 
period  of  suspension  can  operate  equally  on  the 
two  features  of  promotion  by  withholding  in 
one  instance  any  appointment  during  the  said 
period,  and  in  the  other  instance  by  mo\'ing 
forward  the  date  of  eligibility  to  promotion 
for  six  months,  or,  what  amounts  to  the  same 
thing,  by  adding  six  months  to  the  three  years  of 
ser\'ice.  The  officer  was  eligible  to  promotion 
when  he  took  his  first  examination,  and  he 
was  still  eligible  to  promotion  because  of  his 
original  three  years'  8er\ice  when  the  time 
for  his  reexamination  arrived;  but  he  had 
been  requii'ed  to  serve  six  months  longer,  and 
the  length  of  service  exacted  in  his  case  was 
three  years  and  six  months.  (Toulon  v.  U.  S., 
61  Ct.  Cls.,  87,  94,  95,  96.) 

In  the  Toulon  case  (51  Ct.  Cls.,  87),  the  court 
decided  against  the  claim  of  the  officer  for  pay 
from  the  date  stated  in  his  commission  for  the 
reason  that  the  date  so  stated  was  not  three 
years  and  six  months  after  the  date  he  originally 
became  due  for  promotion,  but  was  approxi- 
mately three  years  and  four  months  after  said 
date.  Subsequently  a  new  commission  was 
issued  to  the  officer  with  date  of  rank  three 
years  and  six  months  after  the  date  that  he 
originally  became  due  for  promotion,  and  the 
Court  of  Claims  thereupon  allowed  his  claim 
for  pay  fi'om  the  date  stated  in  said  commission. 
(Toulon  V.  U.  S.,  52  Ct.  Cls.,  333;  see  file 
26280-68,  Mar.  18,  1916. )_ 

An  officer  was  commissioned  as  ensign  to 
rank  from  June  6,  1910,  and  was  commissioned 
as  lieutenant  (junior  grade)  to  rank  from  June 
6,  1913,  although  in  the  meantime  he  had  been 
suspended  from  promotion  for  six  months 
pursuant  to  section  1505  as  amended.  Upon 
the  facts  stated  he  was  not  legally  entitled  to 
rank  from  June  6,  1913,  in  the  grade  of  lieu- 
tenant (junior  grade),  but  his  right  to  promotion 
under  the  law  did  not  accrue  until  December  6, 


1913.  (File  26268-475,  May  14,  1915.)  Where 
an  officer  is  promoted  after  six  months'  suspen- 
sion, there  is  no  legal  obstacle  to  assigning  him 
a  date  later  than  that  from  which  ofiicers  below 
him  take  rank;  imder  such  circumstances  sec- 
tion 1505,  as  amended,  fixes  the  position  to 
which  the  officer  is  entitled  in  the  higher  grade 
regardless  of  the  date  stated  in  his  commission ; 
but  in  such,  case  a  reference  note  in  the  Navy 
Register  to  section  1505,  as  amended,  would  be 
desirable  as  explaining  his  status  in  this  respect. 
(File  26260-2605:2,  Aug.  17,  1915;  26268-475, 
May  14,  1915.) 

One  year's  pay  when  dropped  from  the 
service. — Section  1454,  Revised  Statutes,  pro- 
\dding  for  one  year's  pay  to  officers  wholly 
retired  from  service,  has  no  application  to  the 
case  of  an  officer  of  the  Navy  who  is  dropped 
from  the  service  under  section  1505,  Revised 
Statutes,  because  of  his  professional  disqualifi- 
cations to  perform  the  duties  of  the  position 
for  promotion  to  which  he  has  been  examined. 
There  is  no  provision  of  law  authorizing  the 
payment  of  one  year's  pay  in  such  case.  (12 
Comp.  Dec,  97;"  Elmer  v.  U.  S.,  45  Ct.  Cls., 
90.  Note. — These  decisions  were  rendered 
prior  to  the  amendment  of  sec.  1505,  R.  S.) 

Section  1505,  as  amended,  providing  that 
where  an  officer  of  the  Navy  fails  in  an  exami- 
nation for  promotion  in  the  way  specified  there- 
in he  shall  be  dropped  from  the  service  with 
not  more  than  one  year's  pay,  is  indefinite,  and 
authority  is  not  given  to  the  accounting  officers 
to  determine  how  much  pay,  if  any,  shall  be 
received  by  said  officer;  but  the  discretion 
in  determining  the  amount  is  left  to  the  Exec- 
utive through  the  administrative  department. 
In  this  case  the  President's  approval  of  the 
examining  board  merely  directs  that  the  offi- 
cer '  'be  dropped  from  the  service,  in  accord- 
ance with  the  provisions  of  section  1505  of  the 
Revised  Statutes, "  without  directing  that 
any  pay  be  given  him.  Therefore,  no  specific 
direction  as  to  pay  havdng  been  given,  none 
can  be  allowed  by  the  accounting  officers.  (18 
Comp.  Dec,  9'22.) 

Special  act  of  Congress  restoring  rank. — 

TVTien  a  lieutenant  (junior  grade)  has  been 
suspended  from  promotion  under  section  1505, 
and  subsequently  passes  a  reexamination  and 
is  promoted  to  fill  a  vacancy,  a  later  act  of 
Congress  directing  the  Secretary  of  the  Navy 
to  restore  him  to  his  original  number  to  receive 
rank  from  the  time  when  his  loss  of  date  began 
does  not  entitle  such  officer  to  the  pay  of  the 
higher  grade  during  the  period  of  suspension 
from  promotion.     (16  Comp.  Dec,  557.) 

Suspension  of  action  by  President  dis- 
tinguished from  suspension  from  promo- 
tion.— The  suspension  of  an  officer  from  pro- 
motion for  one  year  mider  section  1505,  or  for 
for  four  months  under  that  section  as  amended 
by  the  act  of  March  11,  1912  (37  Stat.,  73), 
because  of  not  having  been  foimd  professionally 
qualified  for  promotion, is  a  suspension  occuning 
after  action  by  the  President  appro\'ing  such 
finding  of  disqualification,  and  is  therefore 
clearly  differentiated  from  the  President's 
suspension  of  action  appro\dng  or  disapproving 
the  findings  of  the  board  for  the  periods  of  one 
year  and  six  months,  respectively,  prior  to  his 


733 


Sec.  1606. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


a]>proval  thereof.  (22  Comp.  Dec,  153;  com- 
jnire  Ilooj.er  v.  V.  S.,  53  Ct.  ('Is.,  90.") 

Delay  in  holding'  examination. — It  is 
inijx)rtaiit  that  in  all  ca.'^es  where  it  is  not 
absolutely  impossible  to  do  bo  examinations  for 
proniot  ion  be  held  prior  to  the  ocourrenre  of  the 
vacancy,  as  is  required  by  express  provisions 
of  la%\'  with  reference  to  promotions  in  the 
Army  and  Marine  Corps.  (File  2(i2(10-2605:2, 
Aug.' 17,  1915.) 

Revocation  of  President's  action. — See 
note  to  section  1456,  Revised  Statutes,  imder 
"Revocation  of  President's  action. " 

Section  1505,  as  amended,  pro\'ides  that  any 
officer  to  whom  that  section  applies,  if  found 
not  professionally  qualified, ''s/!«/^  be  sus- 
pended "from  promotion  for  a  period  of  six 
months  from  the  date  of  approval  of  said  exam- 
ination, and  shall  suffer  a  loss  of  numbers  equal 
to  the  a^'erage  six  months'  rate  of  ]>romotion  to 
the  grade  for  which  said  officer  is  imdergoing 
examination  during  the  five  fiscal  years  next 
preceding  the  date  of  approval  of  said  examina- 
tion, and  ujwn  the  termination  of  said  suspen- 


sion from  promotion  he  shall  be  reexamined, 
and  in  case  of  his  failure  upon  such  reexamina- 
tion he  shall  be  dropped  from  the  service  with 
not  more  than  one  year's  pay."  This  legisla- 
tion is  construed  by  the  Judge  Advocate  Gen- 
eral as  vesting  no  discretion  in  the  Executive 
with  reference  to  the  suspension  of  an  officer 
who  has  l)een  found  not  professionally  qualified 
for  promotion,  but  as  mandatory  that  under 
such  circumstances  the  officer  shall  be  sus- 
pended for  the  period  stated ;  after  approval  of 
the  finding  of  the  board,  no  power  exists  in  the 
Secretary  of  the  Navy  to  review  same  and  to 
revoke  his  approval.  (File  26260-6133,  Apr. 
26,  1919;  for  contrary  precedents,  see  record 
of  examining  board  in  case  of  I>ieut.  (junior 
grade)  Harold  W.  Scofield,  and  note  to  sec.  1456, 
R.  S.,  imder  "Revocation  of  President's 
action.") 

For  other  cases,  see  note  to  section  1500,  Re- 
vised Statutes,  under  "Correction  of  action 
taken  where  officer  not  accorded  the  right  to  be 
present." 


Sec.  1506.  [Advancement  in  number.]  Any  officer  of  the  Navy  may,  by 
and  with  the  advice  and  consent  of  the  Senate,  be  advanced,  not  exceeding 
thirty  numbers  in  rank,  for  eminent  and  conspicuous  conduct  in  battle  or 
extraordinary  heroism;  and  the  rank  of  officers  shall  not  be  changed  except  m 
accordance  with  the  provisions  of  existing  law,  and  by  and  with  the  advice 
and  consent  of  the  Senate. — (21  April,  1864,  c.  63,  s.  6,  v.  13,  p.  54.  24  Jan., 
1865,  c.  19,  s.  1,  V.  13,  p.  424.) 


This  section  was  expresslv  amended  and  reen- 
acted  by  act  of  June  17,  1878  (20  Stat.,  144), 
the  amendment  consisting  in  the  addition 
of  the  words  follo\\ang  the  semicolon  as 
reproduced  above. 
By  sections  1605  and  1606,  Re\ised  Statutes, 
provision  is  made  for  the  Marine  Corps  sim- 
ilar to  sections  1506  and  1507,  relating  to  the 
Navy;  by  acts  of  March  3,  1901  (31  Stat., 
1108),  and  June  16,  1906  (34  Stat.,  296), 
officers  so  ad\anced  are  to  be  carried  as 
additional  to  the  numbers  of  each  grade  in 
which  they  serve.      Other  provisions  for 
advancement  of  officers  are  contained  in 
sections  1508-1510,  Revised  Statutes.     Re- 
tired officers  detailed  for  the  command  of 
squadrons  or  single  ships  in  time  of  war 
may  be  restored  to  the  active  list  if  they 
receive  a  vote  of  thanks  of  Congress  for 
their    services    and   gallantry    in    action 
against  the  enemy  (sec.  1465,  R.  S.). 
Advancement  of  officer  not  subject  to 
revision  by  subsequent  administration. — 
A  rational  interpretation  of  this  section  is  that 
Congress  has  left  to  the  discretion  of  the  Presi- 
dent the  determination  of  what  acts  of  heroism 
should  be  recommended  to  the  Senate  for  re- 
ward, and  in  pro\'iding  that  the  Senate  must  ad- 
vLse  and  consent  to  the  advancement  has  indi- 
cated the  only  forum  which  may  inquire  into 
the  wisdom  with  which  that  discretion  has  been 
exercised.     The  nomination  for  the  advance- 
ment being  in  regular  form,  as  also  the  resolution 
of  the  Senate  and  the  commission,  and  the  ad- 
vancement being  an  accomplished  fact  and 
witliin  the  terms  of  section  1506,  it  is  not  in  the 


power  of  the  President  to  inquire  what  was  the 
act  of  heroism,  or  when  and  where  it  was  commit- 
ted, which  induced  his  predecessor  and  the 
Senate  to  advance  the  officer  in  numbers;  their 
action  in  that  matter  is  conclusive  upon  the 
executive  department  and  therefore  is  not  sub- 
ject to  reexamination  or  re\dsion  by  the  Presi- 
dent. (17  Op.  Atty.  Gen.,  76.  In  this  case  an 
officer  of  the  Pay  Corps  was  twice  advanced  15 
numbers  and  it  was  afterwards  insisted  that 
both  advancements  were  for  the  same  act  of 
heroism  and  that  the  eminent  and  conspicuous 
conduct  in  battle  occurred  at  such  a  time  as 
would  not  entitle  the  officer  to  the  benefits  of 
the  law.) 

Date  of  vacancy  created  by  advancement 
to  liiglier  grade. — The  advancement  of  a 
commander  to  the  grade  of  captain  under  sec- 
tion 1506,  to  rank  from  August  10,  1898,  did  not 
create  a  vacancy  in  the  grade  of  commander 
until  December  14,  1898,  when  such  advance- 
ment was  confirmed  by  the  Senate.  A  lieutenant 
commander  was  promoted  to  be  a  commander  in 
the  place  of  the  aforesaid  officer,  also  with  rank 
from  August  10, 1898.  As  there  were  no  vacan- 
( ies  on  August  10,  1898,  when  these  officers  took 
rank  according  to  their  commissions,  the  act  of 
June  22,  1874  (18  Stat.,  191;  see  sec.  1561, 
R.  S.),  did  not  apply  so  as  to  entitle  them  to 
pay  in  the  higher  grades  fi'om  the  time  they 
took  rank,  respectively.  (23  Op.  Atty.  Gen.", 
30.) 

Date  increased  pay  commences  in  higher 
grade. — ^The  advancement  of  an  officer  to  a 
higher  grade  pursuant  to  section  1506,  Revised 
Statutes,  is  not  a  promotion  in  course  to  fill  a 


734 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1506. 


vacancy,  within  the  meaning  of  section  1561, 
Revised  Statutes,  allo^ndng  increased  pay  on 
promotion  from  date  of  rank;  and  accordingly 
the  increased  pay  in  snch  cases  commences,  not 
at  the  date  from  which  he  takes  rank  in  the 
higher  grade  but  at  the  date  of  his  appointment 
as  an  officer  of  that  grade.  (17  Op.  Atty.  Gen., 
319;  see  also  23  Op.  Atty.  Gen.,  30,  noted  above, 
and  Young  v.  U.  S.,  19  Ct.  Cls.,  145.  Aa  to 
pay  from  date  of  rank  in  all  cases  of  officers 
advanced  pursuant  to  law,.see  act  of  Mar.  4, 1913 , 
37  Stat.,  892.) 

Advancement  under  ad  interim  commis- 
sion.— The  advancement  and  promotion  of 
officers  pursuant  to  section  1506,  Revised  Stat- 
utes, can  not  be  accomplished  by  the  President 
alone,  and  ad  interim  commissions  issued  to 
such  officers  did  not  create  vacancies  in  their 
offices,  as  such  advancement  and  promotion  can 
be  only  with  the  advice  and  consent  of  the  Sen- 
ate. (23  Op.  Atty.  Gen.,  30,  approving:  6  Comp. 
Dec,  7;  see  also  Peck  v.  U.  S.,  39  Ct._  Cls.,  125.) 

The  last  clause  of  section  1506  forbids  that  the 
rank  of  any  officer  be  changed  except  with  the 
advice  and  consent  of  the  Senate.  Therefore 
as  the  advancement  of  certain  officers  under 
section  1506  would  change  their  respective 
grades  and  ranks,  it  could  not  be  made  by  the 
President  alone.  The  Constitution,  Article  II, 
section  2,  authorizing  the  President  to  fill  up  all 
vacancies  that  may  happen  dming  the  recess  of 
the  Senate,  does  not  confer  upon  the  President 
the  power  to  create  such  vacancies.  (23  Op. 
Atty.  Gen.,  30.) 

Rear  Admii-al  William  T.  Sampson  was  ad- 
vanced eight  nvmibers  and  appointed  a  rear- 
admii-al  in  the  Navy  under  the  provisions  of  sec- 
tion 1506,  Revised  Statutes,  from  the  10th  day 
of  August,  1898,  and  an  ad  inteiini  commission 
was  issued  to  him  from  that  date.  This  ad- 
vancement the  Senate  failed  to  confirm  prior  to 
adjournment.  Advancement  in  numbers 
under  this  section  does  not  create  a  vacancy 
within  the  meaning  of  the  Constitution  from  the 
time  when  the  President  decides  to  recommend 
such  advancement,  nor  is  any  vacancy  created 
prior  to  the  date  when  the  Senate  concurs  in  the 
President's  recommendation.  Accordingly  held 
that  no  authority  exists  for  pajdng  him  as  rear 
admiral  from  the  date  when  he  was  commis- 
sioned as  such,  the  Senate  not  having  consented 
to  the  advancement.     (6  Comp.  Dec.,  7.) 

Consent  of  the  Senate  indirectly 
given. — A  commander  in  the  Navy,  Bowman 
II.  McCalla,  was  nominated  by  the  President 
for  advancement  five  numbers  and  appointed 
as  a  captain;  at  the  same  time  a  lieutenant 
commander,  .lohn  E.  Pillsbury,  was  nominated 
■'to  be  a  commander  from  the  10th  day  of 
August,  1898,  vice  Commander  Bowman  H. 
McCalla,  advanced  and  promoted;"  the  Senate 
confirmed  the  nomination  of  Pillsbury  ■without 
acting  upon  the  nomination  of  McCalla.  Held, 
that  the  confirmation  of  Pillsbury  operated  as 
the  adA'ice  and  consent  of  the  Senate  to  the 
advancement  and  promotion  of  McCalla.  No 
particular  form,  set  phrase,  or  language  is 
recjuired  by  which  the  Senate  shows  its  assent 
to  a  presidential  appointment;  the  President 
had  already  nominated  McCalla  to  be  a  captain 
and  all  that  was  necessary  to  make  him  such 
and  to  cause  a  vacancy  in  his  office  of  com- 


mander was  that  the  Senate  consent  thereto; 
and  when  the  Senate  confirmed  another  officer, 
expressly  asserting  that  it  was  to  fill  the  place 
of  McCalla,  promoted,  and  which  promotion 
could  not  be  Avdthout  its  consent,  it  necessarily 
and  thereby  asserted  its  consent  to  his  pro- 
motion; as  the  Senate  could  not  increase  the 
number  of  commanders,  its  confirmation  of 
Pillsbury  to  be  a  commander  necessarily  either 
removed  McCalla  or  promoted  him,  and  the 
Senate  said  that  it  was  in  the  place  of  McC-alla 
advanced  and  promoted.  (23  Op.  Atty.  Gen., 
30.) 

Capt.  Francis  J.  Iligginson  was  nominated 
by  the  President  for  adA-ancement  in  numbers 
pursuant  to  section  1506,  so  as  to  place  him  at 
the  head  of  the  list  of  captains;  he  was  then 
nominated  for  promotion  to  commodore  "vice 
Commodore  Winfield  S.  Schley,  advanced  and 
promoted,"  to  rank  from  August  10,  1898.  On 
December  14,  1898,  the  Senate  confirmed  Capt. 
Higsinson's  promotion  to  the  grade  of  com- 
modore, but  took  no  action  upon  the  proposed 
advancement  in  numbers,  either  in  his  case  or 
that  of  Commodore  Schley.  The  confirmation 
of  Capt.  Higginson's  promotion  not  only  made 
him  a  commodore  from  the  date  of  the  Senate's 
action,  but  in  effect  advanced  Conmiodore 
Schley  so  as  to  make  a  vacancy  which  the 
promotion  operated  to  fill.  (8  Comp.  Dec,  7; 
see  also  8  Comp.  Dec,  302.) 

Capt.  Francis  J.  Iligginson  was  nominated  by 
the  President  for  advancement  in  numbers 
pursuant  to  section  1506,  so  as  to  place  him  at 
the  head  of  the  list  of  captains;  he  was  then 
nominated  for  promotion  to  commodore  to  fill 
a  vacancy.  On  December  14, 1898,  the  Senate 
confirmed  Capt.  Higginson's  promotion  to  the 
grade  of  commodore,  but  took  no  independent 
action  upon  the  nomination  for  his  advance- 
ment in  numbers  in  the  grade  of  captain.  Under 
the  law  as  construed  by  the  Navy  Department 
Capt.  Higginson  was  not  entitled  to  and  there 
was  no  authority  for  his  promotion  to  be  a  com- 
modore at  the  time  he  was  so  promoted  except 
according  to  seniority;  and  as  he  would  not  be 
at  the  head  of  the  captain's  grade,  entitled  by 
seniority  to  promotion  to  commodore,  imless 
the  Senate  concurred  in  his  advancement  in 
numbers  in  the  grade  of  captain,  the  Navy 
Department  was  of  opinion  that  when  the 
Senate  confirmed  the  promotion  of  Higginson 
to  fill  a  vacancy  to  which  he  could  only  be 
entitled  upon  its  confirmation  of  his  advance- 
ment in  numbers,  it  necessarily  and  thereby 
asserted  its  consent  to  his  advancement  in 
numbers:  ZieW,  that  "it  must  be  assumed  that 
the  Senate  in  confirming  the  nomination  of 
Capt.  Higginson  to  be  a  commodore  intended 
to  do  ever^-thiiig  necessary  to  that  confirmation, 
and  that  it  intended  to  act  strictly  in  accord- 
ance with  law;"  accordingly,  when  the  Senate 
confirmed  Capt.  Higginson's  nomination  to  be 
a  commodore  it  thereby  consented  to  and  con- 
firmed his  nomination  for  advancement  in 
numbers  in  the  grade  of  captain,  which  was 
necessary  to  legally  accomplish  his  promotion 
to  the  grade  of  commodore.  (8  Comp.  Dec, 
302,  modifj-ing  8  Comp.  Dec,  7.) 

Loss  of  pay  as  result  of  advancement. — 
Commander  Bowman  H.  McCalla,  advanced  in 
numbers  under  section  1506  so  as  to  be  a  captain, 


735 


Sec.  1609. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Was  not  entitled  to  the  pay  of  captain  from 
Aupuat  10,  18!).S,  the  date  stated  in  his  com- 
mission, but  only  from  December  14,  1898, 
when  the  Senate  indirectly  consented  to  his 
adAancement,  this  rotwithstanding  the  fact 
that  in  the  meantime  a  vacancy  occurred  in  the 
prade  of  captain  by  reason  of  retirement  for 
which  Commander  McCalla  would  have  been 
eligible  by  seniority  had  he  not  been  advanced 
under  section  1506,  and  which  would  have 
entitled  him  to  increased  pay  as  captain  from 
a  date  prior  to  December  14, 1898;  and  in  fact  an 
ofiicer  junior  to  Commander  McCalla  was  pro- 
moted to  said  vacancy  with  pay  from  a  date 
prior  to  that  on  which  Commander  McCalla  was 
held  entitled.  It  thus  happened  that  the 
officer  intended  to  be  rewarded  was  in  effect 
punished  by  the  postponement  of  his  pay  as  cap- 
tain to  a  later  date  than  the  date  from  which  he 
would  have  been  promoted  in  due  course;  while 
there  is  much  equity  in  this  consideration,  it 
can  not  affect  the  results  of  the  transaction 


which    actuallv    occurred.      (7    Comp.    Dec, 
865. ) 

Precedence  of  ofl&cer  advanced  in  num- 
bers.— Wliere  an  olhcer  is  advanced  above  30 
officers,  who  were  his  semors,  it  is  convenient 
to  insert  in  his  commission  a  date  between  that 
of  the  commission  of  the  highest  of  the  30  officers 
whom  he  is  to  outrank  and  that  of  the  lowest 
next  above  him,  in  order  to  indi(  ate  his  position 
and  rank  with  reference  to  the  other  officers 
of  his  grade.  This  might  be  otherwise 
expressed,  to  vni,  by  inserting  the  names  of  the 
two  officers  between  whom  he  is  to  take  his  new 
rank.  However,  while  the  commission  may 
thus  be  given  a  retroactive  effect  for  purposes 
of  precedence,  the  "date  of  commission"  in 
such  cases  for  purposes  of  computing  longevity 
pay  imder  the  statute  which  says  "five  yeara 
after  date  of  commission,"  is  the  true  date  of 
the  instrument,  which  is  the  day  of  its  execu- 
tion. (Young  V.  U.  S.,  19  Ct.  Cls.,  145,  152; 
see  in  this  connection  note  to  sec.  1467,  R.  S.) 


Sec.  1607.  [Promotion  when  grade  is  full.]  Aiiy  officer  who  is  nominated 
to  a  liigher  grade  by  the  provisions  of  the  preceding  section,  shall  be  promoted, 
notwithstanding  the  number  of  said  grade  may  be  full;  but  no  further  promo- 
tions shall  take  place  in  that  grade,  except  for  like  cause,  until  the  number  is 
reduced  to  that  provided  by  law. —  (24  Jan.,  1865,  c.  19,  s.  2,  v.  13,  p.  424.  22 
June,  1874,  c.  392,  v.  18,  i).  191.) 


See  note  to  section  1506,  Revised  Statutes. 

Additional  number  officers  in  grade  of 
rear  admiral. — On  February  26,  1901,  Capts. 
Robley  D.  Evans  and  Henry  G.  Taylor  were 
confirmed  by  the  Senate  for  advancement  in 
numbers  and  promotion  to  rear  admiral  pur- 
suant to  section  1506,  Revised  Statutes.  Under 
the  law  these  officers  are  not  to  be  treated  as 
occupying  numbers  among  the  18  rear  admirals 
allowed  for  the  grade,  but  are  carried  as  addi- 
tional to  the  numbers  of  that  grade.  The  ad- 
dition to  the  grade  of  rear  admiral  by  reason  of 
advancement  imder  section  150G  does  not  ad- 
vance the  officers  already  in  the  lower  half  of 
that  grade  to  the  upper  half,  so  as  to  affect  their 
pay.  The  act  of  March  3,  1899,  section  7  (30 
Stat.,  1005),  fixing  the  pay  of  the  lower  half  of 
the  grade  of  rear  admiral  at  the  same  rate  as  that 
received  by  brigadier  generals  of  the  Army,  had 
particular  reference  to  the  9  lower  numbers  of 
the  18  rear  admirals  provided  for  in  that  act. 


Accordingly  held  that  a  rear  admiral  of  the  9 
lower  numbers  was  not  advanced  in  numbers 
by  the  addition  to  the  grade  of  rear  admiral  of 
Evans  and  Taylor  but  is  still  in  the  9  lower 
numbers  of  that  grade  as  constituted  by  the  act 
of  March  3,  1899,  notwithstanding  that  as  a  re- 
sult of  these  appointments  there  are  more  than 
9  rear  admirals  lower  in  number  than  he.  (8 
Comp.  Dec,  7.) 

The  advancement  of  an  officer  in  the  grade 
of  rear  admiral  from  the  lower  half  of  that  grade 
to  the  upper  half  is  a  promotion  within  the 
meaning  of  the  act  of  March  3,  1901  (31  Stat., 
1108).  Rear  Admiral  Evans,  being  carried  as 
an  additional  number  pursuant  to  the  act  of 
March  3,  1901,  is  advanced  contemporaneously 
with  the  officer  next  above  him  in  rank  and 
should  be  paid  as  a  rear  admiral  of  the  upper 
half  from  the  date  when  the  officer  next  above 
him  is  so  advanced  in  regular  coiu^e.  (8  Comp. 
Dec,  689.) 


Sec.  1508.  [Officers  receiving  thanks  of  Congress.]  Any  line  officer,  whether 
of  volunteers  or  of  the  regular  Navy,  may  be  advanced  one  grade,  if,  upon  recom- 
mendation of  the  President  by  name,  he  receives  the  thanks  of  Congress  for 
higldy  distinguished  conduct  in  conffict  with  the  enemy  or  for  extraordinary 
heroism  in  the  line  of  his  profession. —  (16  July,  1862,  c.  183,  s.  9,  v.  12,  p.  584, 
24  Jan.,  1865,  c.  19,  s.  2,  v.  13,  p.  424.     25  July,  1866,  c.  231,  s.  1,  v.  14,  p.  222.) 

Thanks  of  Congress,  effect  of:   See  sections  1365,  1446,  1465,  1509,  1510,  Revised  Statutes. 

Sec.  1509.  [Effect  of  vote  of  thanks.]  A  vote  of  thanks  by  Congress  to  any 
officer  of  the  Navy  shall  be  held  to  affect  such  officer  only;  and  whenever,  as  an 
incident  thereof,  an  officer  who  would  otherwise  be  retired  is  retained  on  the 
active  list,  such  retention  shall  not  interfere  with  the  regular  promotion  of  others 


736 


The  Navy.  Pt.  2.  REVISED  STATUTES.  Sec.  1510. 

who  would  otherwise  have  been  entitled  by  law  to  promotion. — (1  July,  1870, 
Res.  96,  s.  1,  V.  16,  p.  384.) 

See  note  to  preceding  section,  and  section  1446,  Revised  Statutes. 

Sec.  1510.  [Vacancies  occasioned  by  death,  &c.,  of  oflQicers  thanked.]  No 
promotion  shall  be  made  to  fill  a  vacancy  occasioned  by  the  final  retirement, 
death,  resignation,  or  dismissal  of  an  officer  who  has  received  a  vote  of  thanks, 
unless  the  number  of  officers  left  in  the  grade  where  the  vacancy  occurs  shall  be 
less  than  the  number  authorized  by  law. —  (1  July,  1870,  Res.  96,  s.  1,  v.  16, 
p.   384.) 

See  note  to  section  1508,  Revised  Statutes. 


737 


CHAPTER  FIVE. 


THE  NAVAL  ACADEMY. 


Sec. 

1511.  Where  established. 

1512.  Title  of  students. 

1513.  Number  of  midshipmen. 

1514.  Nomination  of  candidates. 

1515.  Examination  of  candidates. 

1516.  Second  recommendation. 

1517.  Qualifications. 

1518.  Appropriations,  how  applied. 

1519.  j\Iidshipmen  found  deficient. 

1520.  Academic  course. 


Sec. 

1521.  Appointments  on  graduation. 

1522.  Cadet  engineers. 

1523.  Number  and  appointment  of.    • 

1524.  Academic  course  of. 

1525.  Examinations  of. 

1526.  Studies  not  to  be  pursued  on  Sunday. 

1527.  Storekeeper  at  the  Academy. 

1528.  Professors  of  ethics,  Spanish,  and  draw- 

ing. 


Sec.  1511.  [Where  established.]     The  Naval  Academy  shall  be  established 
at  Annapolis,  in  the  State  of  Maryland. —  (21  May,  1864,  c.  93,  s.  4,  v.  13,  p.  85.) 


Historical  note. — The  first  statutory  pro- 
vision for  a  naval  academv  was  made  by  act 
of  Congress,  August  10,  1846  (9  Stat.,  100,  101), 
when  the  modest  sum  of  $28,200  was  appro- 
priated "for  repairs,  improvement,  and  instruc- 
tion at  Fort  Severn,  Annapolis,  Maryland." 
Prior  to  that  time  instruction  had  been  given 
to  midshipmen  in  the  naval  sersdce  in  a 
desultory  manner — sometimes  on  shipboard  and 
sometimes  at  various  places  on  snore  when 
they  were  not  on  sea  duty,  and  this  seems 
to  have  been  done  without  direct  authority 
of  Congress,  but  by  what  a  writer  has  termed 
"wise  departmental  legislation."  During  the 
first  few  years  of  the  Naval  Academy  its  stu- 
dents were  taken  directly  from  midsliipmen  in 
the  Na%'j%  some  of  whom  had  been  several 
years  in  the  sendee.  The  act  of  January  2, 
1813  (2  Stat.,  789),  authorizing  the  construc- 
tion of  four  74-gun  sliips,  provided  that  each 
of  them  should  carry  a  schoolmaster,  and  each 
ship  had  20  midshipmen  who  were  presumably 
under  the  instruction  of  this  schoolmaster. 
Our  Naval  Academy  is  a  growth  and  an  evo- 
lution, and  in  that  respect  somewhat  different 
from  the  Military  Academy.  Its  first  pupils 
were  officers  already  in  the  naval  servdce, 
holding  their  warrants  from  the  President. 
They  have  gradually  ceased  to  be  midshipmen 
in  the  active  sendee  belonging  to  the  line,  and 
are  now  naval  students  the  same  as  cadets  at 
the  ^lilitarj'  Academy  are  military  students. 
(Weller  v.  U.  S.,  41  Ct.  Cls.,  324.) 

Regulations  of  the  Naval  Academy. — 
The  Naval  Academy,  whose  existence  is  due 
to  a  wise  act  of  mere  departmental  adminis- 
tration on  the  part  of  Secretary  Bancroft  in 
1845,  owes  its  organization  substantially  to 
regulations  adopted  from  time  to  time  by  him 
and  his  successors.  The  act  of  July  16,  1862, 
chapter  183,  is  the  earliest  legislation  that 
concerns  the  interior  management  of  the 
Academy,  and  what  has  been  since  enacted 
touches  that  management  only  here  and  there 
incidentally.  Inasmuch,  therefore,  as  Congress 
has  authorized   the  successive  heads  of  the 


Navy  Department  to  govern  the  academy  by 
regulations,  and  has  interfered  therewith  only, 
so  to  say,  desultorily,  the  rule  of  statutory 
construction,  which  forbids  any  disturbance  of 
previously  existing  statutory  or  common  law 
by  a  new  statute  further  than  is  necessary  to 
its  reasonable  operation,  must  be  applied  here 
so  as  to  prevent  any  unnecessary  disturbance 
of  previously  existing  regidations  by  statutory 
enactment.     (15  Op.  Atty.  Gen.,  637.) 

Where  regulations  are  issued  by  the  Secretary 
of  the  Navy  relating  to  examinations  at  the 
Naval  Academy,  it  can  not  for  a  moment  be 
doubted  that  the  existence  of  such  regulations 
was  known  to  Congress  when  enacting  legis- 
lation referring  to  the  "final  graduating  ex- 
amination "  of  midshipmen,  and  they  afford 
a  clear  explanation  of  the  use  by  Congress  in 
such  legislation  of  the  words  ' '  final  graduating 
examination."  (Benjamin  v.  U.  S.,  10  Ct. 
Cls.,  474.) 

The  Secretarj^  of  the  Navy  has  plenaiy 
authority  over  the  regulations  of  the  Naval 
Academy.  He  makes  the  regulations  and  can 
modify  or  change  them  at  will,  providing  no 
statute  is  thereby  trenched  upon.  The  reg- 
ulations of  the  Naval  Academy  do  not,  strictly 
speaking,  form  a  part  of  the  regulations  for  the 
government  of  the  Navy;  they  are  not  em- 
bodied therein  and  do  not  come  under  section 
1547,  Revised  Statutes,  giving  to  Navy  reg- 
ulations the  force  of  law.  The  regulations  of 
the  academy  are  not  directly  approved  by 
the  President,  as  are  the  Navy  Regulations. 
(36  J.  A.  G.  letter  book,  195,  Mar.  19,  1907.) 

The  Naval  Academy  regulations  are  not  is- 
sued under  any  explicitstatute.  The  Academy 
being  under  nav^al  control  is  administered  by 
the  Secretary  of  the  Navy,  and  it  is  assumed 
that  he  makes  the  regulations  of  the  Academy 
under  his  general  powers  as  Secretary;  but 
there  are  certain  clauses  in  the  statutes  touch- 
ing more  or  less  directly  upon  the  matter, 
such  as  sections  1515  and  1526,  Revised  Stat- 
utes, etc.  Duly  formulated  regulations  being 
essential  to  the  proper  administration  of  such 


738 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1512. 


an  establishment  as  the  Naval  Academy,  the 
effect  of  the  statutes  on  the  subject  is  to  place 
the  power  of  making  such  regulations  in  the 
hands  of  the  Secretary  of  the  Nax'y,  subject  to 
the  general  direction  of  the  President.  Such 
regulations  must,  of  course,  be  made  in  further- 
ance and  not  in  A-iolation  or  disregard  of  statu- 
tory pro\asions.  (36  J.  A.  G.  letter  book,  195, 
Mar.  19,  1907;  see  also  sec.  161,  R.  S.,  and  notes 
thereto.) 

Under  section  1547,  Re\dsed  Statutes,  the 
Secretary  of  the  Navy,  with  the  approval  of 
the  President,  may  issue  regulations  and  in- 
structions for  the  Navy,  and  the  regulations  of 
the  Naval  Academy  pro\T.ding  for  the  dis- 
missal of  midsliipmen  were  presumably  made 
pursuant  to  such  power.  (Weller  v.  U.  S., 
41  Ct.  Cls.,  324.) 

Board  of  Visitors,  to  visit  the  Naval  Acad- 
emy, the  date  of  the  annual  visit  to  be  fixed  by 
the  Secretarv  of  the  Naw,  is  pro^^.ded  for  by 
act  of  August  29,  1916  (39  Stat.,  608).     Said 


board  is  to  consist  of  7  persons  appointed  by  the 
President;  4  Senators  and  5  Members  of  the 
House  of  Representatives,  appointed  respec- 
tively by  the  Vice  President  and  Speaker;  and 
of  the  chairmen  of  the  Committees  on  Naval 
Affairs  of  the  Senate  and  House. 

Naval  Academy  Band,  composed  of  en- 
listed men  of  the  Navy,  was  authorized  by  acts 
of  April  12,  1910  (36  Stat.,  297),  and  July  11,1919 
(41  Stat.,  152);  see  also  act  of  May  13,  1908  (35 
Stat.  ,153),  as  to  competition  of  the  band  as  then 
organized  with  lo<  al  civilian  musicians,  and  act 
of  May  18, 1920  (41  Stat.,  602,  sec.  6),  as  to  tem- 
porary increase  in  pay. 

Naval  Academy  Chapel. — Restrictions 
upon  use  of  crypt  and  -nindow  spaces  for  me- 
morials are  contained  in  act  of  March  3,  1909 
(35  Stat.,  773). 

Superintendent  of  Naval  Academy. — See 
note  to  section  1556,  Revised  Statutes,  under 
"Additional  pay  for  special  duty." 


Sec.    1512.  [Title   of   students.]     The  students    at  the    Naval     Academy 
shall  be  styled  cadet  midshipmen. —  (15  July,  1870,  c.  295,  s.  12,  v.  16,  p.  334.) 

August  31,  1852,  section  1  (10  Stat.,  100),  that 
' '  no  appointment  of  midshipmen,  acting  mid- 
shipmen, or  pupil,  at  any  naval  school  in  the 
Navy,  shall  be  made,  unless  recommended  by 
the  member  of  Congress  representing  the  dis- 
trict in  which  the  applicant  resides,"  etc. 

Cadet-midshipmen. — Section  12  of  the  act 
of  July  15,  1870  (16  Stat.,  321),  later  embodied 
in  section  1512  of  the  Revised  Statutes,  changed 
the  title  of  students  at  the  Naval  Academy  to 
"cadet-midshipmen."  That  act  divided  the 
grade  of  midshipman  on  a  marked  and  conveni- 
ent line,  and  styled  all  below  that  line  as  cadet- 
midshipmen,  but  relative  to  their  new  status  it 
was  enthely  silent.  This  might  with  much 
reason  be  regarded,  nothing  to  the  contrary 
appearing,  as  the  creation  of  a  new  grade  in 
the  line  of  the  Navy  for  cadet  midshipmen. 
A  failure,  however,  to  enumerate  it  as  such  in 
the  list  of  grades  in  that  act,  and  also  in  the 
subsequent  list  of  the  Revised  Statutes,  pre- 
cludes that  construction.  It  left  them,  how- 
ever, with  the  same  duties,  the  same  pay,  the 
same  mode  of  appointment,  and  subject  to  the 
same  naval  discipline  and  control  as  before. 
WTiatever  doubt  might  arise  as  to  the  particular 
status  of  students  under  the  new  title,  it  is 
quite  certain  that  they  still  constituted,  in 
some  capacity,  a  part  of  the  Navy.  (Baker  v. 
U.  S.,  23  Ct.  Cls.,  181;  affirmed,  125  U.  S., 
646.) 

After  the  12th  section  of  the  act  of  July  15, 
1870  (16  Stat.,  334),  students  at  the  Naval 
Academy  were  to  be  styled  "cadet-midship- 
men," and  after  graduation  were  to  be  appoint- 
ed midshipmen  and  promoted  to  the  grade  of 
ensign  as  vacancies  might  occur.  Prior  to 
that  act  students  at  the  Naval  Academy  were 
styled  midshipmen.  The  form  of  appoint- 
ment was  the  same  before  and  after  the  act;  in 
both  cases  it  was  signed  by  the  Secretary  of  the 
Na\y,  by  direction  of  the  President,  and  the 
positions  and  duties  were  precisely  the  same. 
Calling  the  student  a  cadet  midshipman  in- 
stead of  a  midshipman,  without  changing  his 


A   separate   class   of   students  at  the    Naval 
Academy,  to  be  styled  "cadet  engineers," 
was  pro\ided  for  by  sections  1522-1524, 
Re\'ised   Statutes.     By  act  of  August  5, 
1882  (22  Stat.,  285),  the  title  of  all  under- 
graduates at  the  academy  was  changed  to 
"naval  cadets,"  and  by  act  of  July  1,  1902 
(32  Stat.,  686),  the  title  "naval  cadet" 
was  changed  to  "midshipman." 
Midshipmen  were  first  provided  for  in 
the  act  of  Congress  pro\'iding  a  naval  armament, 
March  27,  1794  (1  Stat.,  350),  and  they  were 
therein  denominated  "warrant  officers."     By 
the  act  of  July  16,  1862  (12  Stat.,  583),  mid- 
shipmen were  made  ninth  in  grade  in  the  active 
list  of  line  officers  of  the  Na-\y.     (Weller  v. 
U.  S.,  41  Ct.  Cls.,  324,  r.  S.  v.  Cook,  128  U.  S., 
254.) 

The  first  pupils  of  the  Naval  Academy  were 
officers  already  in  the  naval  service,  holding 
their  warrants  from  the  President.  They  have 
gradually  ceased  to  be  midshipmen  in  the  ac- 
tive 6er^ice  belonging  to  the  line,  and  are  now 
naval  students  the  same  as  cadets  at  the  Mili- 
tary Academy  are  military  students.  (Weller 
V.  U.  S.,  41  Ct.  Cls.,  324.) 

Section  1  of  the  act  of  July  16,  1862  (12  Stat., 
583),  created  the  grade  of  midshipman  as  one 
of  the  nine  grades  of  the  active  list  of  line  of- 
ficers of  the  Navy,  and  section  11  of  the  same 
act  declared  that  students  at  the  Naval  Acad- 
emy shall  be  stvled  midshipmen.  (U.  S.  v. 
Baker,  125  U.  S.,"'646.) 

Acttng  midshipmen. — By  act  of  July  14, 
1862,  section  8  (12  Stat.,  565),"the  President  was 
authorized  "to  annually  appoint  ten  acting 
midshipmen  for  education  at  the  Naval  Acad- 
emy," who  shall  be  selected  from  the  sons  of 
officers  or  enlisted  men  in  the  Army,  Navy,  or 
Marine  Corps;  by  act  of  July  28,  1866,  section  8 
(14  Stat.,  322),  it  was  provided  that  "midship- 
men and  acting  midshipmen  in  the  Navy  of  the 
United  States  shall  be  entitled  to  one  ration,  or 
commutation  therefor."  (See  sec.  1577,  R.  S.) 
It  had  pre'viously  been  provided,  by  act  of 


739 


Sec.  1512. 


Pi.  2.  REVISED  STATUTES. 


The  Navy. 


l)Osition  or  his  (hities,  did  not  make  his  status 
dilfcri'iit  from  what  it  was  before.  (U.  S.  v. 
Cook,  128  U.  S.,  254.) 

If  the  law  designates  a  cadet  as  a  midship- 
man, the  designation  is  an  otiicial  one.  The 
<|uaIifiration  of  cadet-midshipman  was  used  for 
the  sak(>  of  distinction,  to  distinguish  one  kind 
of  midsliipman  from  another,  a  midshipman 
at  school  from  a  midshipman  aboard  ship. 
(U.  S.  V.  Cook,  128  U.  S.,  254.) 

Prior  to  section  12  of  the  act  of  July  15,  1870, 
(16  Stat.,  334),  tlie  form  of  appointment  issued 
to  a  mi.lshipman  at  the  Naval  Academy  stated 
that  he  was  "appointed  to  the  grade  of  mid- 
shipman in  the  United  States  Navy."  After 
the  passage  of  that  act  the  form  of  appointment 
was  changed  by  striking  out  the  w^ords,  "ap- 
pointed to  the  grade  of  midshpiman,"'  and  in- 
serting the  words,  "appointed  a  cadet-mid- 
shipman."    (U.  S.  V.  Baker,  125  U.  S.,  646.) 

Naval  cadets. — The  act  of  August  5,  1882 
(22  Stat.,  284),  provided  "that  hereafter  there 
shall  be  no  appointments  of  cadet-midshipmen 
or  cadet-engineers  at  the  Naval  Academy,  but 
in  lieu  thereof  naval  cadets  shall  be  appointed 
from  each  Congressional  district  and  at  large, 
as  now  provided  by  law  for  cadet-midshipmen, 
and  all  the  undergiaduates  at  the  Naval 
Academy  shall  hereafter  be  designated  and 
called  'naval  cadets.'  "  One  main  object  of 
this  act  was  to  aboUsh  the  distinctions  pre- 
viously made  by  law  between  cadet-engineers 
and  cadet-midshipmen,  and  for  the  future  to 
merge  both  classes  in  the  new  designation  of 
naval  cadets.  The  previous  differences  be- 
tween them  grew  out  of  the  separate  provi- 
sions as  to  their  number,  their  manner  of  ap- 
pointment, their  course  and  term  of  study, 
and  their  pay  after  their  four  years'  course  at 
the  Academy.  (U.  S.  v.  Redgrave,  116  U.  S., 
474.) 

The  purpose  of  the  act  of  1882  was  to  abolish 
the  distinction  in  name  between  cadet-engi- 
neers and  cadet-midshipmen,  and  to  pro\ide 
for  the  two  but  one  classification,  known  to 
the  law  as  "naval  cadets."  (Harmon  v.  U.  S., 
23  Ct.  Cls.,  132.) 

The  act  of  August  5,  1882  (22  Stat.,  284), 
effected  a  change  in  the  name  of  students  at 
the  Naval  Academy,  but  did  not  alter  their 
legal  status,  which  remained  the  same  as  before. 
(BComp.  Dec,  410.) 

Congress  has  the  power  to  change  the  name 
of  students  at  the  Naval  Academy  and  to 
modify  the  scope  of  their  duties,  as  it  did  by 
the  act  of  1882;  by  so  doing  it  did  not  under- 
take to  name  the  incumbent  of  any  office  and 
assume  the  power  of  appointment  thereto, 
which  belonged  to  the  Executive.  (Crenshaw 
r.  U.S.,  134  U.S.,  99.) 

Title  of  midshipinan  revived. — Section 
1362  of  the  ReA-ised  Statutes  of  1878  named 
the  active  list  of  officers  of  the  Navy,  and 
made  midshipmen  the  eleventh  of  the  list  of 
the  different  grades  therein  pro\ided  for.  The 
naval  appropriation  act  of  Alarch  3,  1883  (22 
Stat.,  472),  changed  the  title  of  "midshipman "' 
to  "ensign,"  the  effect  of  which  was  to  dis- 
continue the  grade  of  midshipman  in  the 
Navy.  The  act  of  June  26,  1884  (23  Stat.,  60), 
pro\ided  that  all  graduates  of  the  Naval 
Academy  on  the  completion  of  the  six  years' 


course  should  be  commissioned  as  ensigns  in 
the  Navy,  and  the  grade  of  junior  ensign  was 
therein  abolished.  Section  7  of  the  act  of 
March  3,  1899  (30  Stat.,  1004),  known  as  the 
Navy  personnel  act,  named  the  list  of  line 
officers  of  tlie  NaAy,  including  ensigns,  and 
the  name  of  midshipman  is  not  found  therein. 
Th^-  act  of  July  1,  1902  (32  Stat.,  G.Sli),  changed 
the  title  of  "naval  cadet"  to  "midshipman." 
It  thus  appears  that  since  the  act  of  March  3, 
1883,  there  has  been  no  such  rank  as  midship- 
man in  the  United  States  Navy,  except  as  that 
title  has  been  given  to  students  at  the  Naval 
Academy.     (Weller  v.  U.  S.,  41  Ct.  Cls.,  324.) 

Status  of  students  at  the  Naval  Acad- 
emy.—A  cadet  student  at  the  Naval  Academy 
is  an  officer  of  the  NaAy  within  the  meaning  of 
the  provision  in  the  act  of  March  3,  1883 
(22  Stat.,  473),  respecting  the  longeAity  pay 
of  officers  and  enlisted  men  in  the  Army  or 
Navy.  (U.  S.  v.  Cook,  128  U.  S.,  254,  follow- 
ing U.  S.  V.  Baker,  125  U.  S.,  646,  and  U.  S. 
V.  Hendee,  124  U.  S.,  309.  But  see  act  of 
Mar.  4,  1913,  37  Stat.,  891,  pro\dding  that 
"hereafter  the  service  of  a  midshipman  at  the 
United  States  Naval  Academy,  or  that  of  a 
cadet  at  the  United  States  Military  Academy, 
who  may  hereafter  be  appointed  to  the  United 
States  Naval  Academy,  or  to  the  United  States 
Military  Academy,  shall  not  be  counted  in 
computing  for  any  purjjose  the  length  of  service 
of  any  officer  in  the  Navy  or  in  the  ^Marine 
Corps.") 

That  a  midshipman  is  an  officer  has  been 
understood  ever  since  there  was  a  Navy.  lie 
is  not  one  of  the  common  seamen.  His  name 
indicates  a  middle  position,  between  that  of 
a  superior  officer  and  that  of  the  common 
seaman.     (U.  S.  v.  Cook,  128  U.  S.,  254.) 

It  is  not  to  be  doubted  that  a  midshipman 
is  an  officer,  and  this  has  been  authoritatively 
decided  respecting  undergraduates  at  the 
Naval  Academy  under  various  laws  for  the 
benefit  of  "officers  of  the  Na\^."  (25  Op. 
Atty.  Gen.,  579.) 

It  is  true  that  a  student  is  at  the  Naval 
Academy  only  for  education,  but  the  educa- 
tion is  at  the  request  and  for  the  benefit  of  the 
Government  rather  than  of  himself.  A  raw 
recruit  is  not  sent  to  the  front  until  he  has 
had  a  course  of  instruction,  discipline,  and 
drill  in  camp.  That  the  time  thus  spent 
would  constitute  ser\ice  in  the  Army  no  one 
would  doubt.  Education  at  the  Academy, 
though  of  a  higher  order,  is  required  and  justi- 
fied by  the  same  principle.  (Baker  v.  U.  S., 
23  Ct.   Cls.,    181;  affirmed,   125   U.    S.,    646.) 

Both  cadets  in  the  Army  and  cadets  in  the 
Navy  are  appointed  in  pursuance  of  the  Con- 
stitution, Article  II,  section  2,  pro\idiiig  that 
Congress  may  vest  the  appointment  of  inferior 
officers  in  the  President  alone  or  in  the  heads  of 
departments;  those  in  the  Army  by  reason  of 
express  authority  conferred  on  the  President 
(sec.  1315,  R.  S.),  those  in  the  Navy  by  reason 
of  authority  conferred  on  the  Secretary  of  the 
Navy  (sec.  1514  R.  S.).  The  status  of  mili- 
tary cadets  the  same  as  that  of  naval  cadets 
is  that  of  "officers"  in  the  Constitutional  sense 
of  the  word  as  distinguished  from  employees. 
(10  Comp.  Dec,  795.  See  also  note  to  sec. 
1514,  R.  S.) 


740 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1513. 


They  are  not  merely  students  being  educated 
at  the  expense  of  the  Government,  but  are 
officers  in  the  na\-al  ser\T.ce,  and  as  such  their 
salary,  fixed  by  law,  can  no  more  be  increased 
or  diminished  than  can  the  salary  of  any  other 
officer  in  the  naval  sendee  which  is  fixed  by 
law.  Accordingly,  where  granted  leave  of 
absence  by  the  Secretary  of  the  Na-\-y  for  sick- 
ness or  other  cause,  they  are  still  entitled  to 
pay  duiing  the  period  of  such  leave  at  the  same 
rate  they  were  recei\TJig  at  the  academy. 
(8Comp.  Dec,  410.) 

It  is  impossible  not  to  conclude  that  the 
claimant  continued  to  be,  after  the  passage  of 
the  act  of  1870,  as  he  was  prior  to  its  passage, 
an  officer  of  the  Na^-y,  on  the  active  list,  and 
ser\'ing  as  such  an  officer  by  \'irtue  of  his  ha\'ing 
been  appointed  a  midshipman  and  continuing 
to  be  a  student  in  the  Naval  Academy,  even 
though  he  might  have  been  properly  styled, 
after  the  passage  of  the  act  of  1870,  a  cadet-mid- 
shipman.    (U.  S.  V.  Baker,  125  U.  S.,  646.) 

^\^late\•er  doubt  may  arise  as  to  the  particular 
status  of  students  under  the  new  title,  it  is 
quite  certain  that  they  still  constitute,  in  some 
capacity,  a  part  of  the  Navv.  (Baker  v.  U.  S., 
23  Ct.  Ols.,  181;  affirmed,  125  U.  S.,  646.) 

In  the  computation  of  their  longe^-ity  pay, 
officers  of  the  Naval  Reserv'e  Force  are  entitled 
to  credit  for  previous  sendee  in  the  Navy  as 
cadet-engineer.     (24  Comp.  Dec,  629.) 

A  naval  cadet  traveling  under  orders  is  en- 
titled to  mileage  under  the  laws  pro\T.ding 
mileage  for  officers  of  the  Na\'y  traveling  under 
orders.     (Fitzpatrick  v.  U.  S.,  37  Ct.  Cls.,  332.) 

Midsliipmen  at  the  Naval  Academy  are  not 
enlisted  in  the  ser^ice,  but  are  appointed  as 
midshipmen  at  the  Naval  Academy  for  train- 
ing. Not  being  enlisted,  they  can  not  there- 
fore be  classified  as  ''soldiers,  sailors,  or  ma- 
rines" within  the  meaning  of  laws  granting 
preference  in  appointment  to  the  ci^'il  sendee 
of  honorably  discharged  soldiers,  sailors,  or 
marines.  (P'ile  5252-131,  Oct.  11,  1919.  Com- 
pare file  28762-649:  2,  Apr.  9, 1920,  holding  that 
the  act  of  July  11,  1919,  41  Stat.,  37,  respecting 
preference  in  civil  sendee  appointments,  is 
broad  enough  to  include  all  members  of  the 
military  forces  of  the  United  States  who  serve 
on  active  duty  as  such.) 

Midshipmen  at  the  Naval  Academy  are  of- 
ficers on  the  active  list  of  the  Na^'y  within  the 


meaning  of  the  pro\dso  in  the  act  of  May  13, 
1908  (35  Stat.,  127),  w^hich  allows  a  gratuity  of 
six  months'  pay  to  be  paid  to  the  wddow  or 
other  designated  beneficiary  upon  the  death  of 
an  officer  on  the  active  list  of  the  Na\-y.  (15 
Comp.  Dec,  39.) 

The  Naval  Academy  is  part  of  the  machinery 
of  the  Na^y.  The  midshipmen  are  appointed 
by  the  Secretary  of  the  Navy  by  direction  of  the 
President.  They  are  required  to  engage  to 
serve  for  eight  years  unless  sooner  discharged  by 
competent  authority  (but  see  note  to  sec.  1514, 
R.  S.).  They  must  take  an  oath  and  bind 
themselves  to  bear  true  faith  and  allegiance  to 
the  United  States,  and  that  they  will  serve  them 
honestly  and  faithfully  against  all  their  ene- 
mies, and  that  they  will  obey  the  orders  of  the 
President  of  the  United  States  and  the  orders  of 
the  officers  appointed  over  them  according  to 
the  rules  and  articles  for  the  government  of  the 
United  States  Na\y.  They  are  required  to 
wear  the  uniform  prescribed  by  the  naval 
authorities.  They  are  subject  to  naval  dis- 
cipline. They  are  borne  upon  the  Navy  Regis- 
ter as  a  part  of  the  acti\-e  list  of  the  line  of  the 
Na\'y .  They  are  upon  the  pay  roll ;  their  salary 
is  fixed  by  law,  and  they  are  paid  from  the 
appropriation,  "Pay  of  the  Na\y."  That  they 
are  in  the  naval  sendee  is  not  thought  question- 
able. They  are  by  law  officers  in  a  qualified 
sense.  They  are  not  now  and  never  were  com- 
missioned officers.  While  they  are  not  officers 
witliin  the  meaning  of  article  36,  section  1624, 
Re\dsed  Statutes,  as  was  decided  in  the  case  of 
Weller  v.  U.  S.  (see  note  to  sec.  1519,  R.  S.), 
yet,  following  the  reasoning  of  the  Supreme 
Court  in  the  case  of  United  States  v.  Cook 
(above  noted),  held,  that  they  are  officers  on 
the  active  list  of  the  NaN'y  within  the  meaning 
of  the  act  of  May  13, 1908  (35  Stat.,  127),  pro^dd- 
ing  for  pa-\Tnent  of  death  gratuity.  (20  Comp. 
Dec,  39.)' 

Students  at  the  Naval  Academy,  designated 
as  midshipmen  by  the  act  of  July  1,  1902,  are 
officers  of  the  Navy  within  the  meaning  of 
section  1586,  Re%dsed  Statutes,  which  prohibits 
the  allowance  of  expenses  incurred  by  any 
officer  of  the  Navy  for  medical  attendance, 
unless  the  attendance  of  a  naval  medical  officer 
could  not  have  been  had.     (9  Comp.  Dec,  375.) 

For  other  cases,  see  notes  to  sections  1514, 
1519,  and  1520,  Re\dsed  Statutes. 


Sec.  1513.  [Number  of  midshipmen.     Repealed.] 


This  section  provided  as  follows: 

"Sec.  1513.  There  shall  be  allowed  at  said 
Academy  one  cadet  midshipman  for  every 
Member  or  Delegate  of  the  House  of  Represen- 
tatives, one  for  the  District  of  Columbia,  and 
ten  appointed  annually  at  large." — (2  !Mar., 
1867,  c.  174,  s.  8,  v.  14,  p.  517.  15  July,  1870, 
0.  295,  s.  12,  V.  16,  p.  334.) 

It  was  expressly  amended  by  act  of  June 
17,  1878  (20  Stat.,  143),  to  read  as  "follows: 

"Sec.  1513.  There  shall  be  allowed  in  said 
Academy  one  cadet-midshipman  for  exery 
Member  or  Delegate  of  the  House  of  Represen- 
tatives, one  for  the  District  of  Columljia,  and 
ten  appointed  at  large:  Provided,  however,  That 
there  shall  not  be  at  any  time  more  in  said 
Academy  appointed  at  large  than  ten:  but  the 


pro\dsions  of  this  section  shall  not  be  construed 
to  apply  to  cadet-midshipmen  appointed  at 
large  now  in  said  Academy." 

Subsequent  amendments  were  made  by 
the  following  laws: 

Act  of  July  1,  1902  (32  Stat.,  686):  ''That 
until  the  year  nineteen  hundred  and  fourteen, 
i  n  addition  to  the  naval  cadets  now  authorized 
by  law  (the  title  ha\dng  been  changed  by  this 
act  to  midshipmen),  the  President  shall  ap- 
point five  midshipmen,  and  there  shall  be  ap- 
pointed from  the  States  at  large,  upon  the  rec- 
ommendation of  Senators,  two  midshipmen  for 
each  State  " 

Act  of  March  3,  1903  (32  Stat.,  1197):  "There 
shall  be  allowed  at  the  Naval  Academy  two 
midshipmen  for  each  Senator,  Representative, 


741 


Sec.  1513. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


and  Doletrate  in  Contrressi,  two  for  the  District 
of  Columl)ia,  and  live  each  year  at  lars^e 
*  *  *.  That  the  provisions  of  this  Act  for  the 
increase  of  appointments  of  midshipmen  to  the 
Naval  Academy  sliall  continue  in  force  until 
the  tiiirtieth  day  of  .1  uno,  nineteen  hundred  and 
thirteen;  and  tliereafter  one  midshipman,  as 
now  proAaded  by  law,  shall  be  appointed  for 
each  Senator,  Representative,  and  Delegate  in 
ConcTcss. " 

Act  of  July  9,  1913  (38  Stat.,  103);  "That 
after  June  thirtieth,  nineteen  hundred  and 
thirteen,  and  until  June  tiiirtieth,  nineteen 
hundred  and  nineteen,  there  shall  be  allowed 
at  the  Naval  Academy,  two  midshipmen  for 
each  Senator,  Representative,  and  Delegate  in 
Contrress,  one  for  Porto  Rico,  two  for  the  Dis- 
trict of  Columbia,  and  ten  appointed  each  year 
at  large." 

Act  of  June  30,  1914  (38  Stat.,  410):  "Here- 
after in  addition  to  the  a])pointments  of  mid- 
ehi]imen  to  the  United  States  Naval  Academy 
as  now  prescribed  by  law,  the  Secretary  of  the 
Navy  is  allowed  fifteen  appointments  annually 
from  the  enlisted  men  of  the  Navy  who  are  citi- 
zens of  the  United  States  and  not  more  than 
twenty  years  of  age  on  the  date  of  entrance  to 
the  Naval  Academy,  and  who  shall  have  served 
not  less  than  one  year  as  enlisted  men  on  the 
date  of  entrance:  Provided,  That  such  appoint- 
ments sliall  be  made  in  the  order  of  merit  from 
candidates  who  have  in  competition  with  each 
other  passed  the  mental  examination  now  or 
hereafter  required  by  law  for  entrance  to  the 
Naval  Academy,  and  who  pased  the  physical 
examination  required  before  entrance  under 
existing  law.' 

All  the  above  laws  -were  repealed  and 
superseded  by  the  act  of  February  15,  1916 
(39  Stat.,  9),  which  provided  as  follows: 

"That  hereafter  there  shall  be  allowed  at 
the  United  States  Naval  Academy  three  mid- 
shipmen for  each  Senator,  Representative, 
and  Delegate  in  Congress,  one  for  Porto  Rico, 
two  for  the  District  of  Columbia,  ten  appointed 
each  year  at  large,  and  fifteen  appointed  annu- 
ally from  enlisted  men  of  the  Navy  as  now 
authorized  by  law. 

"Sec.  2.  That  all  acts  or  parts  of  acts  incon- 
sistent with  the  provisions  of  this  act  are  hereby 
repealed." 

Amendments  to  the  act  of  February  15,  1916, 
were  contained  in  the  following  laws: 

Act  of  August  29,  1916  (39  Stat.,  576): 
"Hereafter  in  addition  to  the  appointment  of 
midshipmen  to  the  United  States  Naval 
Academy,  as  now  prescribed  by  law,  the 
President  is  hereby  allowed  fifteen  appoint- 
ments annually  instead  of  ten  as  now  pre- 
scribed by  law,  and  the  Secretary  of  the  Navy 
is  allowed  twenty-five  appointments  annually, 
instead  of  fifteen  as  now  prescribed  by  law,  the 
latter  to  be  appointed  from  the  enlisted  men 
of  the  Navy  who  are  citizens  of  the  United 
States,  and  not  more  than  twenty  years  of  age 
on  the  date  of  entrance  to  the  Naval  Academy, 
and  who  shall  have  served  not  less  than  one 
year  as  enlisted  men  on  the  date  of  entrance: 
Provided,  That  such  appointments  shall  be 
made  in  the  order  of  merit  from  candidates  who 
have  in  competition  with  each  other  passed  the 
mental  examination  now  or  hereafter  required 


by  law  for  entrance  to  the  Naval  Academy, 
and  who  passed  the  physical  examinations  re- 
quired before  entrance  under  existing  laws." 

Act  of  March  4,  1917  (39  Stat.,  1182): 
"Hereafter,  in  addition  to  the  appointment 
of  midfjhipmon  to  the  United  States  Naval 
Academy,  as  now  prescribed  l)y  lav.-,  the 
Secretary  of  the  Navy  is  allowed  one  hundred 
appointments  annually,  instead  of  twenty-five 
as  now  prescribed  by  law,  to  lie  appointed 
from  the  enlisted  men  of  the  Navy  who  are 
citizens  of  the  United  States,  and  not  more 
than  twenty  years  of  age  on  the  date  of  entrance 
to  the  Naval  Academy,  and  who  shall  have 
served  not  less  than  one  year  as  enlisted  men 
on  the  date  of  entrance:  Provided,  That  such 
appointments  shall  be  made  in  the  order  of 
merit  from  candidates  who  have,  in  compe- 
tition with  each  other,  passed  the  mental 
examination  now  or  hereafter  required  by  law 
for  entrance  to  the  Naval  Academy,  and  who 
passed  the  physical  examination  before  entrance 
under  existing  laws. " 

Act     of     April     25,     1917     (40  Stat.,  38). 

"That,  in  addition  to  the  number  of  mid- 
shipmen now  authorized  by  law,  there  shall  be 
appointed  during  the  period  from  the  date  of 
passage  of  this  act  until  September  first,  nine- 
teen hundred  and  eighteen,  one  additional 
midshipman  for  each  Senator,  Representative, 
and  Delegate  in  Congress.  Nominations  shall 
be  made  for  these  vacancies  by  the  Senators, 
Representatives,  and  Delegates  concerned  for 
any  regular  or  special  examination  that  may 
be  ordered  before  that  date." 

The  act  of  February  15,  1916,  and 
amendments  thereto  (except  theact  of  March 
4,  1917)  were  repealed  and  superseded  by  the 
act  of  December  20,  1917  (40  Stat.,  430),  which 
provided  as  follows: 

"That  hereafter  there  shall  be  allowed  at 
the  United  States  Naval  Academy  five  mid- 
shipmen for  each  Senator,  Representative,  and 
Delegate  in  Congress,  one  for  Porto  Rico,  two 
for  the  District  of  Columbia,  fifteen  appointed 
each  year  at  large,  and  one  hundred  appointed 
annually  from  enlisted  men  of  the  Navy,  as 
now  authorized  by  law. 

"Sec.  2.  That  all  acts  or  parts  of  acts  in- 
consistent with  the  provisions  of  this  act  are 
hereby  repealed." 

The  act  of  December  20,  1917,  was 
expressly  amended  by  the  act  of  July  11, 
1919  (41  Stat.,  140),  which  provided  as  follows: 

"Section  1  of  the  act  entitled  'An  Act  to  in- 
crease the  number  of  midshipmen  at  the  United 
States  Naval  Academy,'  approved  December 
20,  1917,  is  hereby  amended  so  as  to  read  as 
follows:  That  hereafter  there  shall  be  allowed 
at  the  United  States  Naval  Academy  five  mid- 
shipmen for  each  Senator,  Representative, 
Delegate  in  Congress,  and  Resident  Commis- 
sioner from  Porto  Rico,  and  five  for  the  District 
of  Columbia,  fifteen  appointed  each  year  at 
large,  and  one  hundred  appointed  annually 
from  enlisted  men  of  the  Navy,  and  members  of 
the  Naval  Reserve  Force  on  active  duty,  as 
now  authorized  by  law." 

Midshipmen  appointed  from  Porto 
Rico.— The  act  of  Maich  3,  1903  (32  Stat., 
1198),  provided  as  follows:  "That  hereafter 
there  shaU   be  at  the   Naval  Academy  one 


742 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1513. 


midshiiJman  from  Porto  Rico,  who  shall  be  a 
native  of  said  island,  and  whose  appointment 
shall  be  made  by  the  President  on  the  rec- 
ommendation of  the  Governor  of  Porto  Rico." 

The  act  of  March  3,  1903,  was  not  repealed  by 
the  act  of  February  15,  1916  (39  Stat.,  9),  which 
increased  the  niunber  of  midshipmen  and  pro- 
vided for  the  appointment  of  "one  for  Porto 
Rico,"  but  did  not  provide  that  the  appointee 
should  be  a  native  of  the  island  or  that  he 
should  be  nominated  by  the  Governor  of  Porto 
Rico  as  pro^^.ded  by  the  act  of  1903.  The  two 
provisions  are  not  inconsistent  and  should  be 
construed  as  authorizing  the  appointment  of 
one  midshipman  from  Porto  Rico  in  addition 
to  the  native  of  the  island  who  must  be  recom- 
mended by  the  Governor.  The  language  of 
the  act  of  February  15,  1916,  "one  for  Porto 
Rico,"  was  repeated  in  the  act  of  December  20, 
1917,  which  latter  act  also  did  not  repeal  the 
act  of  March  3,  1903,  relating  to  the  appoint- 
ment of  a  midshipman  from  Porto  Rico.  As  a 
consequence,  from  March  3,  1903,  until  Febru- 
ary 15,  1916,  only  one  midshipman  from  Porto 
Rico  was  authorized  by  law;  he  could  be  ap- 
pointed only  upon  recommendation  of  the 
Governor  and  was  required  to  be  a  native  of  the 
island.  From  February  15,  1916,  until  July  11, 
1919,  two  midshipmen  were  authorized,  one 
required  to  be  a  native  of  the  island  and  to  be 
appointed  only  on  the  recommendation  of  the 
Governor.  On  the  last  mentioned  date  Con- 
gress amended  the  act  of  December  20,  1917, 
so  as  to  pro\'ide  for  the  appointment  of  five 
midshipmen  on  the  recormnendation  of  the 
Resident  Commissioner  from  Porto  Rico.  The 
result  of  this  amendment  is  to  authorize  a  total 
of  six  midshipmen  from  Porto  Rico,  five  of 
whom  are  to  be  appointed  on  the  nomination 
of  the  Resident  Commissioner  from  Porto  Rico 
and  need  not  be  natives  of  the  island,  the  other 
to  be  a  native  of  Porto  Rico  appointed  under 
the  act  of  March  3, 1903,  on  the  recommendation 
of  the  Governor.  (File  5252-126,  Aug.  1, 
1919.) 

Students  from  the  Philippine  Islands. — 
The  act  of  August  29,  1916  (39  Stat.,  576),  con- 
tained the  following  pro\T.sion:  "That  here- 
after the  Secretary  of  the  Na\y  is  authorized  to 
permit  not  exceeding  four  Filipinos,  to  be  de- 
signated, one  for  each  class,  by  the  Governor 
General  of  the  Philippine  Islands,  to  receive 
instruction  at  the  United  States  Naval  Academy 
at  Annapolis,  Maryland:  Provided,  That  the 
FilipinGS  undergoing  instruction,  as  herein 
authorized,  shall  receive  the  same  pay,  allow- 
ances, and  emoluments,  to  be  paid  out  of  the 
same  appropriations,  and  shall  be  subject  to  the 
same  rules  and  regulations  governing  admission, 
attendance,  discipline,  resignation,  discharge, 
dismissal,  and  graduation  as  are  authorized  by 
law  and  regulation  for  midshipmen  appointed 
from  the  United  States,  but  the  Filipino  mid- 
sliipmen  herein  authorized  shall  not  be  entitled 
to  appointment  to  any  commissioned  office  in 
the  United  States  Na\'y  by  reason  of  their 
graduation  from  the  Naval  Academy." 

The  above-quoted  pro\4sion  of  the  act  of 
August  29,  1916,  relatmg  to  Filipino  students, 
is  not  repealed  by  the  act  of  July  11,  1919  (41 
Stat.,  140),  or  any  other  law,  relating  to  the 
number  of  midshipmen  to  be  allowed  at  the 


United  States  Naval  Academy.     (File  5252- 
126,  Aug.  1,  1919.) 

Students  from  foreign  countries. — The 
act  of  June  29,  1906  (34  Stat.,  577),  contained 
the  following:  "No  person  shall  be  admitted 
for  instruction  at  the  Naval  Academy  at  Anna- 
polis from  any  foreign  country  except  upon 
authority  of  law  hereafter  enacted." 

A  public  resolution  approved  February  15, 
1916,  authorized  the  Secretary  of  the  Navy  to 
permit  a  designated  "citizen  of  Cuba"  to  "re- 
ceive instruction  at  the  United  States  Naval 
Academy  at  Annapolis,"  pro\'ided  he  first 
passed  the  examinations  prescribed  for  candi- 
dates from  the  United  States:  Held,  that  said 
resolution  did  not  authorize  the  admission  of 
the  party  named  therein  as  a  midsliipman  or 
authorize  his  admission  into  the  naval  service 
in  any  status  whatever;  he  is  not  wliile  at  the 
Naval  Academy  subject  to  the  laws  and  regula- 
tions for  the  government  of  the  Navy,  and  is 
not  liable  to  trial  by  court-martial  and  dismissal 
for  misconduct.  He  is  not  to  be  regarded  as  a 
member  of  the  naval  forces  but  simply  as  a 
student  at  the  Naval  Academy,  whose  presence 
there  is  authorized  by  law.  He  is  ineligible  for 
a  commission  in  the  Navy  under  section  1428  of 
the  Revised  Statutes.  However,  he  may  be 
graduated  from  the  Naval  Academy  and  given 
a  diploma  as  exddence  of  such  graduation. 
(File  5252-120,  May  13,  1919;  C.  M.  0.  186, 
1919.) 

The  act  of  June  29,  1906,  above  quoted,  is  a 
legislative  declaration  that  unless  Congress  it- 
self makes  an  exception  to  the  rule  the  privi- 
leges of  the  Naval  Academy  are  restricted  to 
citizens  of  the  United  States.  (File  313-26, 
Dec.  20,  1906.  Overruled  by  subsequent  de- 
cisions noted  under  section  1428,  R.  S.,  which 
hold  that  aliens  may  legally  be  appointed  to 
the  Naval  Academy  as  midshipmen,  but  can 
not  be  commissioned  upon  graduation  as  officers 
of  the  Navy  unless  naturalized.) 

Midshipmen  appointed  from  enlisted 
men  of  the  Navy,  Marine  Corps,  Coast 
Guard,  and  Naval  Reserve  Force. — The 
appointment  of  midshipmen  from  "boys 
enlisted  in  the  Navy  "  was  authorized  by  acts 
of  July  16,  1862  (12  Stat.,  585,  sec.  11),  and 
March  2,  1867  (14  Stat.,  517,  sec.  8).  By  act 
of  July  15,  1870  (16  Stat.,  334,  sec.  12),  which 
changed  the  title  of  students  at  the  Naval 
Academy  to  "cadet-midshipmen,"  it  was 
provided  that  the  said  act  "shall  not  be  con- 
strued to  authorize  the  appointment  of  cadet- 
midshipmen  from  among  boys  enlisted  in  the 
Navy."  (File5252-59,  Feb.6, 1914.)  The  act 
of  June  30,  1914,  and  later  laws  above  noted, 
authorized  the  appointment  of  midshipmen 
from  enlisted  men  of  the  Navy. 

Enlisted  men  of  the  Marine  Corps  may  be 
a^jpointed  to  the  Naval  Academy  in  the  dis- 
cretion of  the  Secretary  of  the  Navy  under 
the  authority  conferred  by  the  act  of  June  30, 
1914  (38  Stat.,  410),  which  authorizes  such 
appointments  from  "enlisted  men  of  the 
Nav>'."  (File  5252-66,  May  13,  1915;  C.  M.  O. 
20,  1915.) 

Even  when  the  Coast  Guard  is  operating  "aa 
a  part  of  the  Na\-y  "  in  time  of  war,  as  provided 
by  the  act  of  January  28,  1916  (38  Stat.,  800), 
enlisted    men   of   the    Coast   Guard    are   not 


743 


Sec.  1514. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


cliE:iblo  for  appointment  to  the  Naval  Acad- 
emy under  th(>  act  of  June  30,  1914  (38  Stat., 
410),  which  autliorizes  such  appointments 
from  "enlisted  men  of  the  Navy."  (C.  M.  O. 
141,  1918,  citing  file  28762-457,  Oct.  10,  1918. 
Compare  later  decisions  noted  under  sec. 
1492,  11.  S.,  holding  that  enlisted  men  of  the 
Coast  (Juard  when  operating  'as  a  part  of  the 
Navy'"    are    "enlisted   men   of   the   Navy.") 

Members  of  the  Naval  Reserve  Force  in 
enlisted  ratings  are  not  eligible,  even  when  on 
active  duty,  for  appointment  to  the  Naval 
Academy  under  the  act  of  June  30,  1914 
(38  Stat.,  410),  as  amended  by  act  of  December 
20,  1917  (39  Stat.,  9),  which  authorizes  such 
ajipointments  to  be  made  from  "enlisted  men 
of  the  Navy."  (C.  M.  0.  174,  1918,  citing 
file  5252-92:1.  But  see  act  of  July  11,  1919 
(41  Stat.,  140),  above  quoted,  which  authorizes 
such  appointments  from  "members  of  the 
Naval  Reserve  Force  on  active  duty,  as  now 
authorized  by  law.") 

MisceUaneous  decisions. — The  act  of  July 
14,  1862,  section  8  (12  Stat.,  565),  which 
authorized  the  President  to  appoint  annually 
ten  acting  midshipmen  for  education  at  the 
Naval  Academy,  to  be  selected  from  the  sons 
of  ofilcers  or  men  in  the  Army,  Navy,  or 
Marine  Corps  who  distinguished  themselves  in 
the  service  of  the  United  States,  was  not 
repealed  by  the  act  of  July  16,  1862,  section  11 
(12  Stat.,  585),  which  prov-ided  for  the  number 
to  be  allowed  at  the  Naval  Academy  and  the 
method  of  appointment  thereto.  The  number 
to  be  appointed  "at  large"  by  the  President 
under  the  latter  act  were  in  addition  to  the 
niunber  to  be  appointed  under  the  former  act, 
•whose  appointments  were  not  to  be  "at  large" 
but  confined  to  a  comparatively  small  class. 
(10  Op.  Atty.  Gen.,  315.) 

Under  the  11th  section  of  the  act  of  July  16, 
1862,  which  provided  that  the  nomination  of 
candidates  for  admission  into  the  Naval  Acad- 
emy should  he  made  upon  recommendation  of 
Meml)er3  and  Delegates  from  actual  residents 
of  their  districts,  it  was  held  that  the  Secretary 
of  the  Navy  had  the  power  and  it  was  his  duty 
to  fill  vacancies  in  the  Naval  Academy  that 
might  exist  from  any  district  wiien  it  was 
clearly  impracticable  to  obtain  the  recom- 
mendation of  the  Member  or  Delegate  in  Con- 


gress from  that  district,  as  when  the  district 
was  not  represented  in  Congress;  that  the 
words,  ' '  two  for  every  Member  and  Delegate  of 
the  Hou.se  of  Representatives,"  meant  to  estab- 
lish as  the  standard  for  appointment,  not  the 
actual  number  of  Members  and  Delegates  who 
happened  to  be  entitled  to  seats  in  the  House, 
but  the  numlier  of  districts  which  w'ere  entitled 
to  representation  l)y  Members  and  Delegates, 
and  not  to  make  the  number  of  students  to  be 
allowed  at  the  Naval  Academy  an  uncertain 
quantity  varying  with  the  accidents  of  non- 
election  or  death  of  Members  or  the  like;  that 
the  provision  in  said  act  that  if  a  Member  or 
Delegate  neglects  to  recommend  a  candidate  by 
the  first  of  July,  it  shall  be  the  duty  of  the  Sec- 
retary to  fill  the  vacancy,  clearly  showed  the 
intent  of  Congress  that  the  school  should  be 
kept  fiill  up  to  the  standard  before  stated.  (10 
Op.  Atty.  Gen.,  494,  modifying  10  Op.  Atty. 
Gen.,  315,  which  in  part  held  that  "midship- 
men can  not  lawfully  be  appointed  for  a  dis- 
trict which  is  not  represented  in  Congress." 
By  act  of  Mar.  2,  1865,  13  Stat.,  466,  sec.  2,  it 
was  provided  "that  no  midshipman  shall  be 
appointed  for  any  district  not  represented  in 
Congress.") 

The  act  of  March  3, 1903  (32  Stat.,  1177, 1197), 
providing  that  "there  shall  be  allowed  at  the 
Naval  Academy  two  midshipmen  for  each  Sen- 
ator, Representative,  and  Delegate  in  Con- 
gress," did  not  entitle  a  representative  to  have 
at  the  academy  two  midshipmen  of  his  own 
nomination  when  there  was  already  one  there 
upon  the  nomination  of  his  predecessor;  under 
that  enactment,  no  congressional  district  was 
entitled  to  have  at  the  Naval  Academy  at  any 
one  time  more  than  two  midshipmen.  (25  Op. 
Atty.  Gen.,  333.) 

The  act  of  July  9,  1913  (38  Stat.,  103),  quoted 
above,  was  construed  to  mean  that  two  mid- 
shipmen were  allowed  for  the  ofiice  of  Senator, 
Representative,  and  Delegate  in  Congress,  and 
not  allowed  to  the  individual  holding  such 
office;  that,  accordingly,  if  a  Senator  or  Repre- 
sentatiN'e  had  two  appointments  to  the  Naval 
Academy  made  on  his  recommendation,  his 
successor  could  not,  while  such  appointees  were 
at  the  Academy,  be  allowed  to  have  two  addi- 
tional appointments  made  to  the  Academy  on 
his  recommendation.  (File  5252-67  :  1,  July 
12,  1915;  CM.  O.  27,  1915.) 


Sec.  1514.  [Nomination  of  candidates.     Superseded.] 


This  section  provided  as  follows: 
"Sec.  1514.  The  Secretary  of  the  Navy 
shall,  as  soon  after  the  5th  of  March  in  each 
year  as  possible,  notify,  in  writing,  each 
Member  and  Delegate  of  the  House  of  Repre- 
sentatives of  any  vacancy  that  may  exist  in 
his  district.  The  nomination  of  a  candidate 
to  fill  said  vacancy  shall  be  made  upon  the 
recommendation  of  the  Member  or  Delegate, 
if  such  recommendation  is  made  by  the  first 
day  of  July  of  that  year;  but  if  it  is  not  made 
by  that  time,  the  Secretary  of  the  Navy  shall 
fill  the  vacancy.  The  canditlate  allowed  for 
the  District  of  Columbia  and  all  the  candidates 
appointed  at  large  shall  be  selected  by  the 
President.  "—(16  July,  1862,  c.  183,  s.  11,  v.  12, 
p.  585.     Benjamin's  Case,  10  C.  Cls.,  474.) 


It  was  expressly  amended  bv  act  of  July 

26,  1894  (28  Stat.,  136),  to  read  as 'follows: 

"The  Secretary  of  the  Navy  shall,  as  soon 
after  the  fifth  of  March  in  each  year  as  possible, 
notify  in  writing  each  Member  and  Delegate 
of  the  House  of  Representatives  of  any  vacancy 
that  may  exist  in  his  district.  The  nomination 
of  a  candidate  to  fill  said  vacancy  shall  be  made 
upon  the  recomendation  of  the  Member  or 
Delegate,  if  such  recommendation  is  made  by 
the  first  day  of  July  of  that  year;  but  if  it  is  not 
made  by  that  time,  the  Secretary  of  the  Navy 
shall  fill  the  vacancy  by  appointment  of  an 
actual  resident  of  the  district  in  which  the 
vacancy  exists,  who  shall  have  been  for  at  least 
two  years  immediately  preceding  the  date  of 
his  appointment  an  actual  and  bona  fide  resi- 


744 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1514. 


dent  of  the  district  in  which  the  vacancy 
exists  and  of  the  legal  qualification  under  the 
law  as  now  provided.  The  candidate  allowed 
for  the  District  of  Columbia,  and  all  the  can- 
didates appointed  at  large,  shall  be  selected 
by  the  President. ' ' 

It  was  superseded  by  the  following  pro- 
vision in  the  act  of  March  3,  1903  (32  Stat., 
1197): 

"The  Secretary  of  the  Navy  shall  as  soon  as 
practicable  after  the  fifth  day  of  March  in  each 
year  notify  in  writing  each  Senator,  Repre- 
sentative, and  Delegate  in  Congress _  of  any 
vacancy  which  may  be  regarded  as  existing  in 
the  State,  District,  or  Territory  which  he  rep- 
resents, and  the  nomination  of  a  candidate  to 
fill  such  vacancy  shall  be  made  upon  the  recom- 
mendation of  the  Senator,  Representative,  or 
Delegate.  Such  recommendation  shall  be 
made  by  the  first  day  of  June  of  that  year,  and 
if  not  so  made  the  Secretary  of  the  Navy  shall 
fill  the  vacancy  by  the  appointment  of  an 
actual  resident  of  the  State,  District,  or  Ter- 
ritory in  which  the  vacancy  exists,  v.'ho  shall 
have  been  for  at  least  two  years  immediately 
preceding  his  appointment  an  actual  bona  fide 
resident  of  the  State,  District,  or  Territory  in 
which  the  vacancy  exists  and  shall  have  the 
qualifications  otherwise  prescribed  bylaw." 

The  act  of  March  3,  1903,  was  super- 
seded by  the  following  provision  in  the  act  of 
June  29,  1906  (34  Stat.,  578): 

"Hereafter  the  Secretary  of  the  Navy  shall, 
as  soon  as  possitale  after  the  first  day  of  June_  of 
each  year  preceding  the  graduation  of  mid- 
shipmen in  the  succeeding  year,  notify  in 
writing  each  Senator,  Representative,  and 
Delegate  in  Congress  of  any  vacancy  that  will 
exist  at  the  Naval  Academy  because  of  such 
graduation,  or  that  may  occur  for  other  reasons 
and  which  he  shall  be  entitled  to  fill  by  nomi- 
nation of  a  candidate  and  one  or  more  alter- 
nates therefor.  The  nomination  of  a  candidate 
and  alternate  or  alternates  to  fill  said  vacancy 
shall  be  made  upon  the  recommendation  of 
the  Senator,  Representative,  or  Delegate,  if 
such  recommendation  is  made  by  the  fourth 
day  of  March  of  the  year  following  that  in 
which  said  notice  in  writing  is  given,  but  if  it 
is  not  made  by  that  time  the  Secretary  of  the 
Navy  shall  fill  the  vacancy  by  appointment  of 
an  actual  resident  of  the  State,  Congressional 
district,  or  Territory,  as  the  case  may  be,  in 
which  the  vacancy  will  exist,  who  shall  have 
been  for  at  least  two  years  immediately  pre- 
ceding the  date  of  his  appointment  an  actual 
and  bona  fide  resident  of  the  State,  Congres- 
sional district,  or  Territory  in  which  the  va- 
cancy will  exist  and  of  the  legal  qualification 
under  the  law  as  now  provided.  In  cases 
where  by  reason  of  a  vacancy  in  the  meinber- 
ship  of  the  Senate  or  House  of  Representatives, 
or  by  the  death  or  declination  of  a  candidate 
for  admission  to  the  academy  there  occurs  or 
is  aboat  to  occur  at  the  academy  a  vacancy  from 
any  State,  district,  or  Territory  that_  can  not 
be  filled  by  nomination  as  herein  provided,  the 
same  may  be  filled  as  soon  thereafter  and  be- 
fore the  final  entrance  examination  for  the 
year  as  the  Secretary  of  the  Navy  may  deter- 
mine. The  candidates  allowed  for  the  Dis- 
trict of  Columbia  and  all  the  candidates  ap- 


pointed at  large,  together  with  alternates  there- 
for, shall  be  selected  by  the  President  within 
the  period  herein  prescribed  for  nomination  of 
other  candidates:  Provided,  Ih-Sii  the  President 
may  select  a  candidate  for  the  District  of  Colum- 
bia for  the  year  nineteen  hundred  and  eight." 
Reconrmendation  of  Senator,  Repre- 
sentative, or  Delegate  advisory  only. — 
The  notification  from  the  Secretary  and  the 
recommendation  from  the  Member  are  parts  of 
the  machinery  of  appointment,  but  they  are 
only,  under  the  statute,  means  to  an  end  and 
not  so  essential  as  to  defeat  the  purpose  of  the 
statute  in  cases  where  their  observance  may  be 
impossible.  Where  observance  is  possible,  the 
statutory  direction  should  be  obeyed;  but  the 
act  of  the  Member  or  Delegate  is  simply 
advisory;  it  implies  no  power  to  compel  the 
appointment  of  the  person  recommended,  and 
the  Secretary  may  refuse  to  accept  the  recom- 
mendation ajid  require  another.  If  the  right 
to  recommend  involved  the  right  of  absolute 
control  over  the  appointment,  it  would  be 
equivalent  to  the  power  of  appointment  itself, 
which  Congress  could  not  vest  in  Members  or 
Delegates,  but  which  under  the  Constitution 
is  vested  in  the  President  with  the  advice  and 
consent  of  the  Senate,  and  may  be  conferred 
by  law  only  upon  the  Presidentalone,  the  courts 
of  law,  or  the  heads  of  departments.  Any 
statute  which  in  terms  or  effect  vested  the 
power  of  appointment  of  pupils  at  the  Naval 
Academy  in  the  Members  and  Delegates  of 
Congress  would  be  in  contravention  of  the 
Constitution  and  void.  (10  Op.  Atty.  Gen., 
494;  see  also  19  Op.  Atty.  Gen.,  350.) 

Appointments  made  by  Secretary  of  the 
Navy.— Under  the  act  of  August  31,  1852  (10 
Stat.,  658),  which  provided  that  "no  appoint- 
ment of  midshipman,  acting  midshipman,  or 
pupil  at  any  naval  school  in  the  Navy  shall 
be  made  unless  recomjnended  by  the  Member 
of  Congress  representing  the  district  in  which 
the  applicant  resides,  in  the  same  manner  that 
cadets  at  West  Point  are  now  appointed," 
held,  that  a  Member  of  Congress  has  no  power 
to  "appoint"  a  midshipman,  nor  even  to 
"nominate"  one,  according  to  the  common 
acceptation  of  that  word ;  the  word  used  in  the 
statute  is  "recommended,"  not  "nominated," 
by  the  Member;  the  statute  only  makes  the 
recommendation  of  a  Member  of  Congress  a 
prerequisite  to  appointment;  the  Secretary  of 
the  Navy  has  power  to  appoint  as  a  midship- 
man anyone  who  stands  recommended  by  a 
Member  of  Congress  who  was,  at  the  time  he 
recommended,  representing  the  district  in 
which  the  applicant  resides;  and  if  more  than 
one  be  so  recommended,  the  Secretary  has  a 
right  to  choose  among  them.  The  Member  of 
Congress  may,  if  he  ^vill,  decline  to  choose 
among  his  young  constituents,  and  recommend 
them  all,  thus  leaving  the  appointing  power  to 
choose  among  them.  Accordingly,  where  a 
Member  of  Congress  recommends  for  appoint- 
ment a  person  resident  in  his  district,  and  hus 
predecessor  while  representing  the  same 
district  had  recommended  for  appointment 
another  person  residing  within  the  district, 
held,  that  the  present  Member  is  not  precluded 
from    his   right    to    recommend    because    his 


745 


Sec.  1514. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


predecessor  had  exercised  the  same  right 
before;  and  that  the  Secretary  of  the  Navy  has 
a  perfect  ris^ht  to  choose  between  them.  (10 
Op.  Atty.  Gen.,  M];  modified  by  IG  Op.  Atty. 
Gen.,  621,  holding  that  a  Member  of  Congress 
had  not  the  right  in  January,  1879,  to  recom- 
mend a  candidate  for  examination  in  June, 
1879,  but  that  such  recommendation  could 
not  lawfully  be  made  until  after  the  5th  day 
of  March,  1879.  See  also  21  Op.  Atty.  Gen., 
342,  noted  below  under  "Recommendation  of 
Member  of  Congress  later  unseated."') 

Admission  or  appointment  to  the  Naval 
Academy  is  the  act  of  the  Secretary  of  the  Navy, 
both  as  to  candidates  "recommended"  by 
Members  of  Congress  and  those  "selected"  by 
the  President.  In  the  one  case  the  Member  or 
Delegate  recommends,  and  the  President  in  the 
other  selects,  but  neither  appoints  the  naval 
cadet;  the  "nomination"  based  on  the  "recom- 
mendation" or  the  "selection"  is  made  to  the 
Naval  Academy  or  to  the  examining  committee 
selected  from  the  academic  board  of  the 
academy  by  the  superintendent  of  the  academy 
under  paragraph  37  of  the  Regulations.  (19  Op. 
Atty.  Gen.,  350.) 

According  to  sections  1513-1515,  Revised 
Statutes,  the  follo\ving  steps  are  necessary  to 
the  appointment  of  naval  cadets — that  is  to  say, 
each  one,  according  as  he  resides  in  a  State  or 
Territory,  must,  except  as  to  11  of  them,  be 
recommended  by  a  Member  or  Delegate  of  the 
House  of  Representatives  from  the  congres- 
sional district  or  Territory  of  which  the  proposed 
candidate  is  a  resident,  and  upon  such  recom- 
mendation he  must  be  nominated  to  fill  a 
vacancy  in  the  academy,  or  in  case  of  a  failure 
by  a  Member  or  Delegate  to  make  such  recom- 
mendation the  Secretary  of  the  Navy  shall  fill 
the  vacancy;  and  in  the  11  excepted  cases 
the  persons  to  fill  vacancies  shall  be  "selected 
by  the  President."     (19  Op.  Atty.  Gen.,  350.) 

The  power  of  appointing  midshipmen  is  vest- 
ed in  the  Secretary  of  the  Navy.  Under 
sections  1513-1515,  Revised  Statutes,  and  the 
act  of  July  26,  1894,  section  1  (28  Stat.,  136), 
the  Member  of  or  Delegate  to  Congress  "recom- 
mends "  or  the  President  ' '  selects, "  but  the 
Secretary  of  the  Nav>^ ' '  appoints,  "  in  pursuance 
of  the  power  of  Congress  to  vest  the  appoint- 
ment of  inferior  officers  in  the  heads  of  depart- 
ments. (25  Op.  Atty.  Gen.,  579,  affirming  19 
Op.  Atty.  Gen.,  351.). 

The  power  to  accept  a  resignation,  like  the 
power  to  remove  from  office,  is  deduced  from 
the  power  to  appoint,  and  is  as  firmly  estab- 
lished as  the  power  of  removal.  In  the  case  of 
cadets  at  the  Naval  Academy  the  power  of 
appointment  is  vested  in  the  Secretary  of  the 
Navy,  and  therefore  the  acceptance  by  him  of 
the  resignation  of  a  cadet  creates  a  vacancy  in 
the  academy.     (19  Op.  Atty.  Gen.,  350.) 

Both  cadets  in  the  Army  and  cadets  in  the 
Navy_  are  appointed  in  pursuance  of  the  Con- 
stitution, Article  II,  section  2,  providing  that 
Congress  may  vest  the  ajipointment  of  inferior 
officers  in  the  President  alone,  or  in  the  heads 
of  departments;  those  in  the  Army  by  reason  of 
express  authority  conferred  on  the  President 
(sec.  1315,  R.  S.),  those  in  the  Navy  by  reason 
of  authority  conferred  on  the  Secretary  of  the 
Navy  (sec.  1514,  R.  S.).    (10  Comp.  Dec,  795.) 


Appointments  made  by  the  President. — 
The  statutes  are  silent  as  to  who  shall  make  the 
appointments  of  midshipmen  in  the  Naval 
Academy,  except  that  if  Members  of  Congress 
fail  to  nominate  to  fill  vacancies  such  vacancies 
shall  be  filled  by  the  Secretary  of  the  Navy  (sec. 
1514,  R.  S.).  It  has  been  the  universal  prac- 
tice for  the  Secretary  of  the  Navy  to  make  the 
appointments  of  midshipmen  "by  direction  of 
the  President"  with  the  exception  above  stated. 
(Weller  v.  U.  S.,  41  Ct.  Cls.,  324.) 

The  first  act  providing  for  midshipmen  in  the 
Navy  gave  their  selection,  like  other  naval  offi- 
cers, to  the  President  (1  Stat.,  350),  and  it  was 
not  until  by  act  of  Congress,  August  31,  1852 
(10  Stat.,  102),  that  provision  was  made  for  their 
recommendation  by  Members  of  Congress. 
This  fact  doubtless  accounts  for  the  present 
silence  of  the  Revised  Statutes  -with  reference 
to  their  appointments,  in  contrast  with  the  pro- 
visions relating  to  cadets  at  the  Military  Acad- 
emy (sec.  1315,  R.  S.).  (Weller  v.  U.  S.,  41  Ct. 
Cls.,  324.) 

Neither  a  midshipman  at  the  Naval  Academy 
nor  a  cadet  at  the  Military  Academy  holds 
either  a  commission  or  a  warrant;  both  are  ap- 
pointed by  the  President.  (Weller  v.  U.  S., 
41  Ct.  Cls.,  324,  342.) 

The  form  used  by  the  Secretary  of  the  Navy 
in  the  appointment  of  a  midshipman  is  as  fol- 
lows: "By  direction  of  the  President  of  the 
United  States  you  are  hereby  appointed  a  mid- 
shipman in  the  United  States  Navy  from ." 

(15  Comp.  Dec,  39.) 

The  midshipmen  are  appointed  by  the  Sec- 
retary of  the  Navy  by  direction  of  the  Presi- 
dent.    (15    Comp.  Dec,  39,  44.) 

When  appointment  takes  effect. — Cadets 
admitted  to  the  Naval  Academy  on  10  May  and 
4  September,  1886,  respectively,  became  naval 
cadets  in  the  full  sense  of  the  term  upon  the 
dates  named;  they  had  on  those  dates,  respec- 
tively, been  duly  nominated  to  the  place,  ac- 
cepted the  nomination,  passed  successfully  the 
examination  required  by  law,  taken  the  oath 
prescribed  for  naval  cadets,  been  assigned  to 
and  entered  upon  the  discharge  of  the  duties 
pertaining  to  the  position,  and  from  those  dates 
their  salaries  commenced.  Their  appoint- 
ments, although  not  issued  until  the  11th  of 
October,  1886,  related  back  by  express  recitals 
to  these  dates  respectively,  and  are  conclusive 
evidence  of  the  appointments  at  the  dates 
aforesaid.  The  appointments  accordingly  took 
effect  on  10  May  and  4  September,  1886,  so  as  to 
render  them  liable  to  trial  by  court-martial. 
(18  Op.  Atty.  Gen.,  507.) 

Obligation  assumed  by  midshipmen  to 
serve  in  the  Navy.— Formerly  midshipmen, 
at  the  time  of  executing  their  oath  of  office  and 
as  part  of  the  same  paper,  signed  an  agreement 
by  which  they  engaged  to  "serve  in  the  Navy 
of  the  United  States  for  eight  years,  unless 
sooner  discharged  by  competent  authority' ' 
(see  15  Comp.  Dec,  43).  This  agreement  was 
neither  required  nor  expressly  authorized  by 
law,  but  was  the  creature  of  administrative 
action  and  may  be  wholly  omitted  or  changed 
in  any  manner,  not  conflicting  with  law,  as 
may  be  desired.  Thus  it  would  be  legal  to 
require  that  candidates  in  acknowledging 
receipt  of  the  Department's  permission  to  re- 


746 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1514, 


port  for  examination  embody  in  their  letter  of 
acknowledgment  an  engagement  that,  should 
they  receive  an  appointment  as  a  midshipman, 
they  "will  serve  in  the  Navy  of  the  United 
States  during  the  pleisui'e  of  the  President  of 
the  United  States,  unless  sooner  discharged  by 
competent  authority,"  said  letter  and  agree- 
ment to  be  expressly  approved  thereon  by  their 
parents  or  guardians.  (File  5252-77,  July  20, 
1915.)  In  accordance  with  the  above,  it  was 
directed  by  the  Secretary  of  the  Na^'j',  April 
12,  1916,  that  form  letters  be  prepared,  to  be 
signed  by  candidates  for  the  Naval  Academy 
and  their  parents  or  guardians,  obligating  such 
candidates,  if  appointed,  to  serve  during  the 
pleasure  of  the  President  of  the  United  States, 
instead  of  for  a  specified  period  of  eight  years. 
(File  5252-77,  Apr.  12  1916.) 

Reinstatement  of  midshipman. — The 
Secretary  of  the  Navy  can  not  revoke  his  action 
in  accepting  the  resignation  of  a  na^-al  cadet 
after  the  resignation  has  taken  effect.  The 
cadet  ha\ing  declared  his  purpose  to  resign,  and 
the  Secretary  of  the  Navy  having  signified  his 
acquiescence  in  that  purpose,  the  result  was  a 
complete  severance  of  the  cadet's  connection 
with  the  Academy,  and  as  much  a  vacancy 
there  as  if  the  cadet  had  died.  The  consent  of 
the  parties  to  the  act  of  resignation  could  not  be 
recalled  except  by  the  reappointment  of  the 
same  person  as  cadet  in  conformity  to  sections 
1514  and  1515,  Re\'ised  Statutes.  It  follows 
that  the  attempted  consent  of  the  Secretary  of 
the  Na\'y  to  the  withdrawal  of  the  cadet's 
resignation  after  acceptance  thereof  did  not  re- 
instate and  restore  such  cadet  to  the  Academy, 
but  had  no  legal  effect  whatever.  (19  Op. 
Atty.  Gen.,  350.) 

The  appointment  of  a  midshipman  was  re- 
voked because  of  accumulated  demerits,  and 
the  revocation  duly  promulgated.  An  ofiicer 
who  has  resigned  or  been  dismissed  can  not  be 
restored  to  the  office  formerly  held  by  him  ex- 
cept by  reappointment.  Accordingly,  heldthSit 
the  Secretary  of  the  Na^y  has  no  authority  to 
reinstate  to  the  Naval  Academy  a  midshipman 
whose  appointment  has  been  revoked  because 
of  accumulated  demerits  and  the  revocation 
thereof  dulv  promulgated.  (25  Op.  Attv.  Gen., 
579.) 

For  other  cases  see  notes  to  sections  1515, 
1517,  and  1519,  Revised  Statutes. 

Recommendation  of  Member  of  Con- 
gress later  unseated. — The  notice  provided 
for  by  section  1514,  Re\ised  Statutes,  as  amend- 
ed, was  intended  to  be  given  to  the  Member  of 
Congress  actually  sitting,  and  the  recommenda- 
tion provided  for  by  said  section  was  intended 
to  be  made  by  such  member,  and  action  duly 
taken  thereon  should  not  be  affected  by  any 
subsequent  event  except  the  failure  of  the 
nominee  to  pass  his  examination.  Accordingly, 
held  that  a  cadet  nominated  to  the  Naval 
Academy  upon  the  recommendation  of  a  Mem- 
ber of  the  House  of  Representatives  who,  since 
the  recommendation  and  nomination,  has  been 
unseated  by  contest  of  election  can  not  be  law- 
fully deprived  of  his  place  if  he  passes  his  exam- 
ination. The  Secretary  of  the  Na^n^-  ip  Bot  au- 
thorized to  revoke  such  a  nomination  and  notify 
the  newly  seated  Member  that  a  vacancy  exists. 
He  has  no  right  to  call  for  a  new  recommenda- 


tion except  under  section  1516,  Revised  Stat- 
utes, when  the  candidate  fails  to  pass  his  exam- 
ination. Until  a  decision  is  made  which  un- 
seats them,  Members  of  Congress  whose  seats 
are  contested  are  considered  to  be  in  all  re- 
spects endowed  with  the  same  rights,  powers, 
and  privileges  as  other  members.  Even  if  the 
Secretary  had  not  acted  upon  the  recommen- 
dation until  after  the  Member  who  made  it  was 
unseated,  his  nomination  thereon  would  be 
perfectly  legal  and  valid.  This  was  held  in  10 
Op.  Atty.  Gen.,  40,  in  which  it  was  said  that  the 
Secretary  has  power  to  appoint  any  one  who 
stands  recommended  by  a  Member  of  Congress 
who  was,  at  the  time  he  recommended,  repre- 
senting the  district  in  which  the  applicant  re- 
sides.    (21  Op.  Atty.  Gen.,  342.) 

Date  of  notice  and  recommendation. — 
Section  1514,  Re\'ised  Statutes,  was  amended 
by  act  of  July  26,  1894,  providing  that  notice 
shall  be  given  by  the  Secretary  of  the  l^axy 
"as  soon  after  the  fifth  of  March  in  each  year  as 
possible."  The  date  named  in  the  statute  was 
undoubtedly  chosen  with  reference  to  the  meet- 
ing of  Congress.  The  requirement  of  prompt 
notice  was  due  to  manifest  reasons  of  public 
policy.  The  object  was  not  so  much  to  confer 
a  priATlege  on  the  Members  of  Congress  as  to  in- 
sure full  classes  of  cadets.  (21  Op.  Atty.  Gen., 
342.)  .      .         .    ■ 

Beginning  with  the  foundation  of  the  Govern- 
ment, never  departed  from  and  now  having 
the  force  of  law,  the  life  of  each  Congress  comes 
to  an  end  at  noon  on  the  4th  day  of  March. 
An  act  approved  March  2,  1895,  authorized 
Members  of  Congress  to  recommend  cadets  to 
fill  vacancies  existing  at  the  Naval  Academy, 
such  nominations  to  be  made  on  or  before 
March  4,  1895.  This  act  was  intended  to  apply 
to  Members  of  the  then  existing  Fifty-third 
Congress.  To  be  valid  it  was  essential  that  a 
recommendation  should  be  made  before  12 
o'clock  noon  of  March  4,  1895.  Accordingly, 
held  that  three  recommendations,  dated  March 
4,  1895,  but  not  received  at  the  Navy  Depart- 
ment until  March  5,  1895,  were  ineffective, 
notwithstanding  that  one  of  said  recommenda- 
tions was  signed  at  11.30  a.  m.  and  handed  to  the 
!  Assistant  Secretary  of  the  Na\'y  about  9  o'clock 
in  the  evening  of  March  4,  1895;  therefore  said 
recommendations  did  not  deprive  the  succes- 
sors in  office  of  the  signers  of  the  general  priv- 
ileges granted  to  them  by  Revised  Statutes, 
sections  1513  and  1514.  (21  Op.  Atty.  Gen., 
164.) 

March  6,  1878,  a  Member  of  Congress  was 
informed,  as  required  by  section  1514,  Revised 
Statutes,  of  a  vacancy  at  the  Naval  Academy 
for  the  appointment  of  a  cadet  midshipman 
from  his  district  and  was  requested  to  recom- 
mend a  candidate  to  fill  the  vacancy;  he  did 
so  and  the  candidate  failed  in  June,  1878,  to 
pass  the  required  examination.  On  June  29, 
1878,  the  Member  of  Congress  was,  as  required 
by  section  1516,  Revised  Statutes,  informed 
of  the  failure  of  said  candidate  to  pass  the 
required  examination  and  was  requested  to* 
recommend  another  to  be  examined  in  Sep- 
tember following;  he  did  so  recommend  and 
the  candidate  failed  on  examination  in  Sep- 
tember, 1878.  The  times  for  the  examination 
of  candidates  as  fixed  by  the  Regulations  are 


54641°— 22- 


-48 


747 


Sec.  1615. 


Pt.2.  REVISED  STATUTES. 


f  he  Navy. 


Juno  1 1  and  Septoml>er  22  of  each  year.  Held, 
that  tht>  next  reconiinendation  of  a  cadet-mid- 
piiipman  for  the  vacancy  in  question  should  be 
made  after  March  5, 1879.  Section  1515,  Re^^sed 
Rtatutee,  is  to  he  reiid  as  if  the  dates  fixed 
In-  the  Regulations  of  the  Academy  had  been 
expressly  in.'^erted  therein;  accordin(};ly,  the 
season  for  recommendations  and  nominations 
of  cadet-midshipmen  begins  after  March  5  and 
expires  on  September  22  of  each  year;  although 
a  casual  persual  of  section  1514  might  suggest 
that  the  date,  "fifth  day  of  March,"  therein 
contained  applies  only  to  the  notice  spoken  of 
and  does  not  prevent  the  recommendation 
from  being  made  sooner,  in  case  the  member 
has  otherwise  been  informed  of  the  vacancy. 
Wliile  it  may  be  conc-eded  that  a  previous 
notification  is  not  essential  to  the  validity  of  a 
recommendation,  it  seems  that  the  date  is  so. 
The  effect  of  the  law  was  to  postpone  the 
operation  of  the  enactment  until  the  coming-in 
of  a  new  Congress,  and  to  establish  a  process  by 
which  the  Members  of  that  Congress,  and  of  all 
others,  might  control  the  appointment  of  cadet- 
midshipmen  made  during  their  respective 
terms  of  office.  Accordingly,  held  that  in 
this  case  the  Member  of  Congress  has  not  the 
right,  prior  to  March  5,  1879,  to  recommend 
another  candidate  for  examination  in  June, 
1879,  or  for  examination  at  once.  (16  Op. 
Atty.  Gen.,  621,  modifying  10  Op.  Atty. 
Gen.,  46.) 

The  naval  appropriation  act  of  June  29,  1906 
(34  Stat.,  578),  relating  to  appointments  to  the 
Naval  Academy,  provided  that  "the  candi- 
dates allowed  for  the  District  of  Columbia  and 
all  the  candidates  appointed  at  large,  together 
with  alternates  therefor,  shall  be  selected  by 
the  President  within  the  period  herein  pre- 
scribed for  nomination  of  other  candidates," 
that  is,  by  the  4th  day  of  March  of  the  year 
following  that  in  which  written  notice  is 
given,  etc.  This  clause  was  followed  by  a 
proviso  that  "the  President  may  select  a  can- 
didate for  the  District  of  Columbia  for  the 
year  nineteen  hundred  and  eight."  This 
additional  authority  granted  by  the  proviso 
was  exercised  by  the  President  by  selecting  a 
candidate  for  the  District  of  Columbia  for  the 


year  1908.  Ilehl  that  the  power  of  the  Presi- 
dent, granted  by  this  ])rovi80,  was  thereby 
exhausted,  and  the  candidate  having  failed 
on  his  examination  the  President  is  not  au- 
thorized, by  virtue  of  that  clause,  to  reap- 
point him  or  to  otherwise  exercise  the  power 
conferred  upon  him  by  that  proviso.  (27 
Op.  Atty.  Gen.,  420.) 

Recoininendation  of  alternates. — Under 
the  system  followed  by  the  Navy  Department 
the  nomination  of  alternates  by  a  Re})resenta- 
tive  in  Congress  is  limited  to  vacancies  for 
which  designated  by  the  Representative. 
Accordingly,  where  the  principal  and  all 
alternates  nominated  for  one  vacancy  failed 
upon  examination,  new  nominations  are  re- 
quired and  the  vacancy  can  not  be  filled  by 
the  appointment  of  a  successful  alternate 
designated  by  the  same  Representative  for 
another  vacancy,  where  such  alternate  was  not 
also  designated  as  alternate  for  the  vacancy 
first  mentioned.  Where  two  vacancies  exist 
at  the  same  time  the  same  alternates  can  be 
designated  for  each  principal  candidate,  but 
unless  this  is  done  the  alternates  have  no  claim 
to  consideration  for  any  vacancy  other  than 
that  for  which  designated.  In  this  case  the 
candidate  and  his  three  alternates  having 
failed,  and  in  the  meantime  the  Representa- 
tive who  made  the  nomination  having  gone 
out  of  office,  the  vacancy  was  properly  filled 
upon  nomination  of  his  successor,  and  the 
candidate  finally  appointed  should  be  entered 
in  the  records  as  having  been  appointed  upon 
the  recommendation  of  the  latter,  notmth- 
standing  it  so  happened  that  the  successful 
candidate  was  one  of  the  alternates  designated 
by  the  former  Representative  to  fill  a  different 
vacancy.     (File  5252-128,  Oct.  17,  1919.) 

Oath  of  ofla.ce. — The  form  of  oath  to  be 
taken  by  midshipmen  is  that  prescribed  by 
section  1757,  Revised  Statutes,  and  not  that 
prescribed  by  article  2  of  the  Articles  of  War 
(sec.  1342,  R.  S.)  for  enlisted  men  of  the  Army, 
which  is  made  applicable  to  enlisted  men  of 
the  Navy  by  section  25  of  the  Navy  personnel 
act  of  March  3,  1899  (30  Stat.,  1004).  (File 
5252-28:  1,  Aug.  25,  1909.) 


Sec.  1615.  [Examination  of  candidates.]  All  candidates  for  admission  into 
the  Academy  shall  be  examined  according  to  such  regulations  and  at  such 
stated  times  as  the  Secretary  of  the  Navy  may  prescribe.  Candidates  rejected 
at  such  examination  shall  not  have  the  privilege  of  another  examination  for 
admission  to  the  same  class,  unless  recommended  by  the  board  of  examiners. — 
(leJuly,  18G2,  c.  18.3,  s.  11,  v.  12,  p.  585.     17  April,  1866,  c.  45,  s.  5,  v.  14,  p.  38.) 

expired  on  September  22,  of  each  year;  accord- 
ingly held  that  a  Member  of  Congress  whose 
candidate  had  failed  on  examination  in  Sep- 
tember, 1878,  did  not  have  the  right  in  January, 
1879,  to  recommend  another  candidate  for 
special  examination  at  once,  or  for  the  regular 
examination  in  June,  1879,  but  that  such 
recommendation  could  not  be  made  until 
after  March  5,  1879.  (16  Op.  Atty.  Gen.,  621, 
modifying  10  Op.  Atty.  Gen.,  46.) 

Where  the  regulations  of  the  Academy  pro- 
vided for  mental  examinations  to  be  held  in 


Time  of  exaraination. — Section  1515,  Re- 
vised Statutes,  is  to  be  read  as  if  the  dates 
fixed  by  the  regulations  of  the  Academy  had 
been  expressly  inserted  therein.  Where  the 
dates  fixed  by  the  rctgulations  were  June  11 
and  September  22  of  each  year,  and  under 
eection  1514,  Revised  Statutes,  as  amended, 
the  date  for  notifying  Representatives  of 
vacancies  to  be  filled  was  "as  soon  after  the 
fifth  of  March  in  each  year  as  possible,"  the 
result  was  that  the  season  for  recommendations 
and  nominations   begaa  after  March   5   and 


748 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1517. 


April  and  June  of  each  year,  and  a  physical 
examination  for  those  who  qualified  mentally, 
held  that  a  special  examination  in  February 
would  be  in  advance  of  the  time  pro-vided 
under  the  statute;  accordingly  a  niunber  of 
midshipmen  who  were  di'opped  as  a  result  of 
the  semiannual  examination  at  the  Academy 
could  not  be,  although  renominated,  reappoint- 
ed in  February  upon  passing  a  successful 
physical  examination  and  granted  leave  of 
absence  with  pay  until  the  summer  coui'se  at 
the  Academv  beginning  the  1st  of  July.  (File 
313-20,  Feb.' 14,  1907.) 

Power  of  Secretary  of  the  Navy  "with 
respect  to  examinations. — By  section  1515 
of  the  Re\ised  Statutes  full  power  is  given  the 
Secretary  of  the  Navy  over  examinations  for 
admission.  So  far  as  the  details  of  the  exam- 
inations are  concerned,  the  Secretary  may,  if 
he  chooses,  fix  them.  (36  J.  A.  G.  letter  book, 
195,  Mar.  19,  1907.) 

Conformably  to  the  authority  granted  the 
Secretary  of  the  Navy  by  section  1515,  Revised 
Statutes,  it  has  been  made  a  requii'ement  that 
candidates  for  appointment  must  "be  of  good 
moral  character."  In  the  case  of  a  midship- 
man who  had  been  dismissed  from  the  Naval 
Academy  for  ''intoxication  and  inaptitude," 
and  who  had  other  reports  on  record  against 
him,  the  question  of  his  eligibility  for  re- 
appointment upon  a  new  nomination  is  not 
one  of  law  but  of  fact,  viz,  whether  or  not  his 
dismissal  from   the   Naval  Academy  and  the 


cause  thereof,  together  with  his  record  while 
at  the  institution,  indicates  that  he  is  not  of 
suf&ciently  "good  moral  character"  to  be 
readmitted  as  a  midshipman.  (File  5252-43, 
Oct.  5,  1911.) 

Reinstatement  of  midshipmen. — An 
appointee  is  none  the  less  a  "candidate  for 
admission"  subject  to  examination  under 
sections  1515  and  1516,  Revised  Statutes,  and 
the  regulations,  because  he  has  already  been 
a  member  or  inmate  of  the  Academy.  (25 
Op.  Atty.  Gen.,  585.) 

Where  the  resignation  of  a  naval  cadet  has 
taken  effect,  he  can  not  be  reinstated  except 
by  reappointment  as  cadet  in  conformity  to 
sections  1514  and  1515,  Revised  Statutes. 
(19  Op.  Atty.  Gen.,  350.) 

In  the  matter  of  reappointment,  midshipmen 
who  were  dropped  as  a  result  of  the  semiannual 
examination  at  the  Academy,  and  are  renom- 
inated, stand  on  the  same  footing  as  candidates 
for  first  appointment  to  the  Academy.  (File 
313-20,  Feb.  14,  1907.) 

WTiether  a  midshipman  dismissed  from  the 
Naval  Academy  is  eligible  for  reappointment 
so  far  as  his  moral  character  is  concerned  is  a 
question  of  fact  to  be  ascertained  upon  exam- 
ination pursuant  to  the  requii'ements  pre- 
scribed by  the  Secretary  of  the  Navy  under 
section  1515,  Revised  Statutes.  (File  5252-43, 
Oct.  5,  1911.) 

For  other  cases  see  notes  to  sections  1514, 
1517,  and  1519,  Revised  Statutes. 


Sec.  1516.  [Second  recommendation.]  Wlien  any  candidate  who  has  been 
nominated  upon  the  recommendation  of  a  Member  or  Delegate  of  the  House  of 
Representatives  is  found,  upon  examination,  to  be  physically  or  mentally  dis- 
c^ualified  for  admission,  the  Member  or  Delegate  shall  be  notified  to  recommend 
another  candidate,  who  shall  be  examined  according  to  the  provisions  of  the 
precedmg  section.— (16  July,  1862,  c.  183,  s.  11,  v.  12,  p.  585.  17  July,  1866, 
c.  45,  s.  5,  V.  14,  p.  38.) 


Second  recommendation  authorized  only 
in  cases  specified. — Where  a  cadet  was  nomi- 
nated to  the  Naval  Academy  upon  the  recom- 
mendation of  a  Memlier  who  was  later  unseated 
by  contest  of  election,  the  Secretary  of  the 
Navy  can  not  revoke  such  nomination  and 
notify  the  newly  seated  Member  that  a  vacancy 
occurs;  he  has  no  right  to  call  for  a  new  recom- 
mendation, except  under  section  1516,  Re- 
vised Statutes,  when  the  candidate  fails  to  pass 
his  examination.     (21  Op.  Atty.  Gen.,  342.) 

Where  a  midshipman  was  appointed  upon  the 
recommendation  of  a  Member,  and  the  success- 


or of  such  Member  contended  that  the  appoint- 
ment was  null  and  void  for  the  reason  that  the 
appointee  did  not  possess  the  statutory  quali- 
fications, held  that  if  this  contention  could  be 
sustained  and  the  midshipman  removed,  the 
vacancy  thus  existing  could  be  filled,  under  the 
statute,  only  by  the  selective  appointment  of 
the  Secretary;  there  would  happen  no  case  for 
nomination  or  recommendation  by  the  Repre- 
sentative from  the  district  to  which  such  mid- 
shipman had  been  credited.  (28  Op.  Atty. 
Gen.,  180.) 


Sec.  1517.  [Qualifications.]  Candidates  allowed  for  congressional  dis- 
tricts, for  Territories,  and  for  the  District  of  Columbia  must  be  actual  residents 
of  the  districts  or  Territories,  respectively,  from  which  they  are  nominated. 
And  all  candidates  must,  at  the  time  of  their  examination  for  admission,  be 
between  the  ages  of  fourteen  and  eighteen  years,  and  physically  sound,  well 
formed,  and  of  robust  constitution. —  (14  July,  1862,  c.  164,  s.  9,  v.  12,  p.  565. 
16  July,  1862,  c.  183,  s.  11,  v.  12,  p.  585.     1  April,  1864,  c.  47,  s.  2,  v.  13,  p.  39.) 


749 


Sec.  1517. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


Amendments  to  this  section  were  made  by 
act  of  March  2,  1889,  section  2  (25  Stat., 
87f)\    which    provided    that    "after    the 
fourth  day  of  March,  eighteen  hundred  and 
eighty-nino,  the  minimum  age  of  admission 
of  cadets  to  the  academy  shall  be  fifteen 
years  and  the  maximum  age  twenty  years;" 
by  act  of  March  8,  1903  (32  Stat.,  1198), 
which  provided  that  "after  January  first, 
nineteen  hundred  and  four,  all  candidates 
for  admission  to  the  Naval  Academy  at  the 
time  of  their  examination  must  be  between 
the  ages  of  sixteen  and  twenty  years;"  and 
by  act  of  May   14,   1918  (40  Stat.,   550), 
which  provided  that  "hereafter  all  candi- 
dates for  admission  to  the  Naval  Academy 
must  be  not  less  than  sixteen  years  of  age 
nor  more  than  twenty  years  of  age  on  April 
first  of  the  calendar  year  in  which  they 
enter   the  academy:  Provided,  That   the 
foregoing  shall  not  apply  to  candidates  for 
midshipmen  designated  for  entrance  to  the 
academy  in  nineteen  hundred  and  eight- 
een." 
Qualifications  for  appointments  from  enlisted 
men  of  the  Navy:   See  laws  noted  under 
section  1513,  Revised  Statutes. 
Not  mandatory  that  candidate  possess- 
ing required  qualifications  be  appointed. — 
While  the  law  says  that  a  candidate  must  have 
undergone  a  successful  examination  and  possess 
certain  other  qualifications  before  he  can  be 
admitted  to  the  academy,  it  does  not  say  that 
a  candidate  possessing  those  qualifications  must 
be  admitted .     1 1  is  by  the  act  and  permission  of 
the  Secretary  alone  that  a  candidate  having  all 
the  qualifications  is  admitted  to  the  academy. 
(19  Op.  Atty.  Gen.,  350.    See  also  note  to  sec. 

1514,  R.  S.) 

Reinstatement  of  midshipman. — The 
ages  prescribed  by  law  for  admission  to  the 
Naval  Academy  apply  as  well  to  one  who  has 
already  been  a  member  of  the  Naval  Academy 
as  to  a  new  appointee.  (File  5252-43:1,  May  7, 
1913.) 

A  midshipman  at  the  Naval  Academy  who, 
being  found  deficient  in  studies,  presented  his 
resignation,  which  was  accepted,  can  not  be 
reappointed  to  fill  the  vacancy  thus  created  if 
he  is  above  the  statutory  age  limit  for  original 
appointment.     (25  Op.  Atty.  Gen.,  585.) 

For  other  cases,  see  notes  to  sections  1514, 

1515,  and  1519,  Revised  Statutes. 
Qualifications    can   not  be  reexamined 

after  appointment. — A  nominee  for  the  office 
of  midshipman  in  the  Navy,  whose  qualifica- 
tions have  been  regularly  certified  to  by  a  Rep- 
resentative in  Congress,  who  has  passed  the 
necessary  mental  and  physical  examinations 
and  received  and  accepted  the  appointment, 
can  not,  in  the  absence  of  fraud,  be  deprived 
of  that  office  on  the  ground  that  he  was  not  an 
actual  resident  of  the  congressional  district 
whence  he  was  appointed,  although  it  should 
afterwards  appear  that  he  was  not  such  an  ac- 
tual resideiit.     (28  Op.  Atty.  Gen.,  180.) 

The  eligibility  of  a  nominee  having  been 
determined  by  a  former  Secretary  of  the  Navy, 
that  action,  in  the  absence  of  fraud,  must  be 
regarded  as  final  and  not  subject  to  reexamina- 
tion under  a  subsequent  administration.     (28 


Op.  Atty.  Gen.,  180;  see  also  note  to  sec.  417, 
R.  S.) 

A  statute  which  empowers  an  officer  or  tri- 
bunal to  appoint  a  person  having  certain  qual- 
ifications confers  upon  that  officer  or  tribunal 
the  power  to  determine  the  qualifications  and 
eligiliility  of  the  appointee.  In  this  case  the 
law  gives  the  Secretary  of  the  Navy  sole  juris- 
diction to  hear,  determine,  and  adjudge  all 
questions  of  qualifications,  and  his  decision  is 
final  in  the  absence  of  some  provision  for  appeal 
or  review.  Wlien  the  decision  of  the  Secre- 
tary of  the  Navy  is  made  and  promulgated,  his 
determination  liecomes  final  and  is  res  judicata 
of  all  that  is  involved.  (28  Op.  Atty.  Gen., 
180.) 

Age  requirements  can  not  be  •w^aived. — 
As  the  age  qualifications  are  fixed  by  law,  the 
executive  is  without  authority  to  waive  the 
statutory  provisions  on  the  subject.  If  it  could 
be  shown  that  action  had  been  taken  in  any 
case  contrary  to  law,  such  action  could  not  be 
regarded  as  a  precedent.  (File  5252-43:1, 
May  7,  1913.) 

Determination  of  qualifications  by  Rep- 
resentative making  recommendation. — 
The  statutory  requirements  as  to  residence  and 
age  are  as  much  directed  to  and  obligatory  upon 
the  Representative  making  the  nomination  as 
they  are  with  respect  to  the  Secretary  of  the 
Navy  in  making  the  appointment.  His  infi- 
nitely better  means  and  greater  facilities  for  as- 
certaining whether  the  nominee  is  a  resident  of 
his  district  recommends  this  practice;  and  his 
interest  in  his  constituents,  many  of  whom 
would  desire  this  place  for  their  young  sons, 
should  insure  due  care  that  no  mere  squatter  or 
sojourner  by  his  recommendation  should  step 
into  the  place  to  which  one  of  them  is  entitled. 
Accordingly,  the  Secretary  of  the  Navy  is  not 
derelict  in  duty  when  he  assumes  that  such 
Representative  has  performed  his  duty  and  re- 
ported correctly  upon  the  qualifications  and 
eligibility  of  the  nominee;  and  it  is  not  an  un- 
reasonable practice  for  the  Navy  Department 
to  devolve  upon  the  Representative  in  Congress 
the  duty  of  ascertaining  and  reporting  with  his 
nomination  that  the  nominee  has  the  required 
qualifications,  including  that  of  residence;  and 
to  act  upon  his  statement  unless  something  to 
the  contrary  appears.  (28  Op.  Atty.  Gen., 
180.) 

Requirements  as  to  residence. — The 
words,  "an  actual  and  bona  fide  resident  of  the 
State,  Congressional  district,  or  Territory  in 
which  the  vacancy  will  exist,"  employed  in 
the  act  of  June  29,  1906  (34  Stat.,  578— noted 
under  sec.  1514,  R.  S.),  providing  for  the  nomi- 
nation of  midshipmen  for  admission  to  the  Naval 
Academy,  require  the  appointee  to  be  "actu- 
ally domiciled"  in  the  State  where  he  is  ap- 
pointed; this,  however,  does  not  necessarily 
mean  actual  physical  presence.  A  naval  officer 
whose  home  is  at  Athens,  N.  Y.,  but  who  has 
for  some  time  past  been  stationed  in  Ports- 
mouth, N.  H.,  is  a  legal  resident  and  voter  in 
Athens,  N.  Y.,  which  is  also  the  actual  bona 
fide  residence  of  his  minor  son,  notwithstanding 
the  latter  has  for  several  years  been  living  with 
his  father  and  physically  present  at  Portsmouth, 
N.  H.  The  son  is  therefore  eligible  for  nomi- 
nation upon  recommendation  of  the  Senator 


750 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1519. 


from  New  York,  by  whom  this  question  was 
raised.     (28  Op.  Atty.  Gen.,  41.) 

Section  1517,  Revised  Statutes,  requires 
that  candidates  must  be  "actual  residents" 
of  the  districts  or  territories  from  which  they 
are  nominated.  The  act  of  June  29,  1906 
(34  Stat.,  578),  provides  that  candidates  shall 
be  ' '  actual  and  bona  fide  "  residents  of  the  State, 
congressional  district,  or  Territory  in  which 
the  vacancy  will  exist.  It  is  manifest  that 
the  main  purpose  of  this  requirement  of  resi- 
dence is  the  fair  distribution  of  these  appoint- 
ments among  the  several  States,  Territories, 
congressional  districts,  and  the  District  of 
Colimibia,  and  to  that  end  to  prohibit  the  filling 
of  a  vacancy  in  one  by  a  resident  of  another. 
But  the  statutes  require  that  candidates  must 
be  between  specified  ages,  so  that  the  question 
is  confined  to  the  residence  of  an  infant.  It 
is  well  settled  that  the  residence  of  a  minor 
son  is  that  of  his  father,  and  that  this  continues 
even  after  the  death  of  the  father  until  the 
minor  acquires  in  some  way  another  legal 
residence.  Therefore,  if  the  father  of  a  nominee 
is  a  resident  of  the  locality  in  which  the  vacancy 
is  about  to  occur,  that  residence  is  also  the 
residence  of  his  minor  son.  (28  Op.  Atty. 
Gen.,  41.) 


The  minor  son  of  an  Army  officer  stationed 
for  the  last  two  years  at  Governor's  Island, 
N.  Y.,  who  has  been  physically  present  and 
attending  school  in  New  York  City,  is  not  an 
actual  and  bona  fide  resident  of  the  State  of 
New  York,  but  of  Virginia,  which  is  the  legal 
residence  of  his  parent,  unless  he  has  become 
entitled  to  or  attempted  to  establish  an  actual 
residence  separate  and  apart  from  his  father; 
and  is  not,  therefore,  eligible  for  nomination 
upon  recommendation  of  the  Senator  from 
New  York,  by  whom  this  question  was  raised. 
(28  Op.  Atty.  Gen.,  41.) 

Reqviireinents  as  to  age. — The  words 
"between  the  ages  of  fourteen  and  seventeen," 
in  the  act  of  July  16,  1862,  section  11,  regulating 
appointments  to  the  Naval  Academy,  are 
unambiguous  and  too  plain  for  construction. 
A  boy  who  happens  to  be  below  14  years  of  age 
or  above  17  is  certainly  not  between  those  ages; 
there  is  no  " '  rigor  "  in  the  case,  but  only  a  fixing 
of  a  qualification  of  age,  as  the  Constitution 
does  in  regard  to  the  President  and  the  members 
of  both  houses  of  Congress;  accordingly  all  who 
have  "'attained  to  seventeen  years  of  age" 
are  excluded  from  appointment.  (10  Op. 
Atty.  Gen.,  315;  see  also  note  to  sec.  1370, 
R.  S.,  concerning  age  of  candidates  for  ap- 
pointment as  naval  officers. ) 


Sec.  1518.  [Appropriations,  how  applied.]  No  money  appropriated  for  the 
support  of  the  Naval  Academy  shall  be  applied  to  the  support  of  any  mid- 
shipman appointed  otherwise  than  in  strict  conformance  with  the  provisions 
of  this  chapter.— (21  May,  1864,  c.  93,  s.  1,  v.  13,  p.  84.) 

Sec.  1519.  [Midshipmen  found  deficient.]  Cadet  midshipmen  found  defi- 
cient at  any  examination  shall  not  be  continued  at  the  Academy  or  in  the  service 
unless  upon  the  recommendation  of  the  academic  board. —  (16  July,  1862,  c. 
183,  s.  11,  V.  12,  p.  585.     23  June,  1874,  c.  453,  v.  18,  p.  203.) 


Amendment  to  this  section  was  made  by  act  of 
June  5,  1920  (41  Stat.,  1028),  wliich  pro- 
vided "that  until  otherwise  pro\dded  by 
law  no  midshipman  found  deficient  at  the 
close  of  the  last  and  succeeding  academic 
terms  shall  be  involuntarily  discontinued 
at  the  Naval  Academy  or  in  the  service  un- 
less he  shall  fail  upon  reexamination  in  the 
suljjects  in  which  found  deficient  at  an 
examination  to  be  held  at  the  beginning  of 
the  next  and  succeeding  academic  terms, 
and  the  Secretary  of  the  Na\-y  shall  pro- 
vide for  the  special  instruction  of  such 
midshipmen  in  the  subjects  in  which  found 
deficient  during  the  period  between  aca- 
demic terms." 

"Cadet-midshipmen,"  title  changed  to  "naval 
cadets"  and  later  changed  to  "midship- 
men" by  laws  noted  under  section  1512, 
Revised  Statutes. 

Coiu-t-martial  of  midshipmen . — By  act  of  June 
23, 1874  (18  Stat.,  203),  it  was  provided  that 
"in  all  cases  where  it  shall  come  to  the 
knowledge  of  the  Superintendent  of  the 
Naval  Academy,  at  Annapolis,  that  any 
cadet-midshipman  or  cadet-engineer  has 
been  guilty  of  the  offense  commonly 
known  as  hazing,  it  shall  be  the  duty  of 
said  Superintendent  to  order  a  court-mar- 


tial, composed  of  not  less  than  three  com- 
missioned officers,  who  shall  minutely  ex- 
amine into  all  the  facts  and  circumstances 
of  the  case  and  make  a  finding  thereon ;  and 
any  cadet-midshipman  or  cadet-engineer 
found  guilty  of  said  offense  by  said  court 
shall,  upon  recommendation  of  said  court 
be  dismissed;  and  such  finding,  when  ap- 
proved by  said  Superintendent,  shall  be 
final ;  and  the  cadet  so  dismissed  from  said 
Naval  Academy  shall  be  forever  ineligible 
to  reappointment  to  said  Naval  Academy." 

Court-martial  of  midshipmen. — By  act  of  March 
2, 1895  (28  Stat.,  838),  it  was  provided  "that 
the  Secretary  of  the  Na\y  shall  have  power 
to  convene  general  courts-martial  for  the 
trial  of  naval  cadets,  subject  to  the  same 
limitations  and  conditions  now  existing  as 
to  other  general  courts-martial,  and  to  ap- 
prove the  proceedings  and  execute  the  sen- 
tences of  such  courts,  except  the  sentences 
of  suspension  and  dismissal,  which,  after 
ha^dng  been  approved  by  the  Superinten- 
dent, shall  not  be  carried  into  effect  until 
confirmed  by  the  President." 

Court-martial  of  midshipmen. — By  act  of  March 
3,  1903  (32  Stat.,  Ii98),  it  was  provided 
"that  the  superintendent  of  the  Naval 
Academy  shall  make  such  rules,  to  be  ap- 


751 


Sec.  1519. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


proved  ])y  the  Secretary  of  the  Navy,  as 
will  effectually  prevent  the  ))ractiee  of 
hazint;;  and  any  cadet  found  guilty  of  par- 
ticipating in  or  encouraging  or  countenanc- 
ing such  practice  shall  be  summarily  ex- 
pelled from  the  Academy,  and  shall  not 
thereafter  be  reapjjointea  to  the  corps  of 
cadets  or  be  eligible  for  api)ointment  as  a 
commissioned  officer  in  the  Army  or  Navy 
or  Marine  ('ori)s  until  two  years  after  the 
graduation  of  the  class  of  which  he  was  a 
member."  (See  25  Op.  Atty.  Gen.,  543, 
noted  below.) 

Dismissal  without  court-martial. — By  act  of 
Ajml  9,  1906,  section  1  (34  Stat.,  104),  it 
was  provided  "'that  it  shall  be  the  duty  of 
the  Superintendent  of  the  United  States 
Naval  Academy,  whenever  he  shall  believe 
the  continued  presence  of  any  midship- 
man at  the  said  academy  to  be  contrary  to 
the  best  interests  of  the  8er\'ice,  to  report 
in  writing  such  fact,  with  a  full  statement 
of  the  facts  upon  which  are  based  his  rea- 
sons for  such  belief,  to  the  Secretary  of  the 
Navy,  who,  if  after  due  consideration  of 
the  said  report  he  shall  deem  the  superin- 
tendent's said  belief  reasonable  and  well 
'  founded,  shall  cause  a  copy  of  the  said 
report  to  be  served  upon  the  said  midship- 
man and  require  the  said  midshipman  to 
show  cause,  in  writing  and  within  such 
time  as  the  said  Secretary  shall  deem  rea- 
sonable, why  he  should  not  be  dismissed 
from  the  said  academy;  and  after  due  con- 
sideration of  any  cause  so  shown  the  said 
Secretary  may,  in  his  discretion,  but  with 
the  written  approval  of  the  President,  dis- 
miss such  midshipman  from  the  said  acad- 
emy. And  the  truth  of  any  issue  of  fact  so 
raised,  except  upon  the  record  of  demerit, 
shall  be  detennined  by  a  board  of  inquiry 
convened  by  the  Secretary  of  the  Navy 
under  the  rules  and  regulations  for  the  gov- 
ernment of  the  Navy." 

Hazing,  punishment  for. — The  act  of  April 
9,  1906  (34  Stat.,  104,  105),  contains  the 
following  provisions:  "Sec.  2.  That  so 
much  of  the  Acts  approved  June  twenty- 
third,  eighteen  hundred  and  seventy-four, 
and  March  third,  nineteen  hundred  and 
three,  aa  requires  the  Superintendent  of 
the  United  States  Naval  Academy  to  con- 
vene a  court-martial  in  all  cases  when  it 
shall  come  to  the  knowledge  of  the  said 
superintendent  that  any  midshipman  has 
been  guilty  of  the  offense  commonly  known 
as  'hazing,'  and  declares  the  finding  of  a 
court-martial  so  convened,  when  approved 
by  the  said  superintendent,  final,  and 
directs  that  any  midshipman  found  guilty 
by  such  court-martial  shall  be  summarily 
dismissed  from  the  said  academy,  and  also 
p.'.l  other  Acts  or  parts  of  Acts  inconsistent 
with  the  present  Act  are  hereby  repealed, 
and  that  the  offense  known  as  'hazing' 
may  hereafter  be  proceeded  against,  dealt 
with,  and  punished  as  offenses  against 
good  order  and  discipline  and  for  viola- 
tion and  breaches  of  the  rules  of  said 
academy.  But  no  midshipman  shall  be 
dismissed  for  a  single  act  of  hazing  except 


under  the  provisions  of  section  three  of 
this  Act. 

"Sec.  3.  That  the  Superintendent  of  the 
United  States  Naval  Academy  may,  in 
his  discretion  and  with  the  approval  of  the 
Secretary  of  the  Navy,  cause  any  mid- 
shipman in  the  said  academy  to  be  tried 
by  court-martial  for  the  offense  of  hazing, 
as  provided  by  the  Act  approved  June 
twenty-third,  eighteen  hundred  and 
seventy-four,  and  such  court-martial,  upon 
conviction,  may  sentence  such  midship- 
man to  any  punishment  authorized  by 
the  said  Act  or  by  the  Act  approved  March 
third,  nineteen  hundred  and  three,  or 
authorized  for  any  \'iolationor  breach  of  the 
rules  of  the  said  academy  by  thesaid  rules, 
or,  in  cases  of  brutal  or  cruel  hazing  may,  in 
addition  to  dismissal,  sentence  such  mid- 
shipman to  imprisonment  for  a  period  not 
exceeding  one  year:  Provided,  That  such 
midshipman  shall  not  be  confined  in  a 
military  or  l^a^•al  prison  or  elsewhere  with 
men  who  have  been  convicted  of  crimes 
or  misdemeanors;  and  such  finding  and 
sentence  shall  be  subject  to  review  by  the 
convening  authority  and  by  the  Secretary 
of  the  Navy,  as  in  the  cases  of  other  courts- 
martial. 

"Sec.  4.  That  the  offense  of  'hazing,' 
as  mentioned  in  this  Act,  shall  consist  of 
any  unauthorized  assumption  of  authority 
by  one  midshipman  over  another  mid- 
shipman whereby  the  last-mentioned  mid- 
shipman shall  or  may  suffer  or  be  exposed  to 
suffer  any  cruelty,  indignity,  humiliation, 
hardship,  or  oppression,  or  the  deprivation 
or  abridgment  of  any  right,  privilege,  or 
advantage  to  which  he  shall  be  legally 
entitled . 

"Sec.  5.  That  it  shall  be  the  duty  of 
every   professor,    assistant   professor,    aca- 
demic ofiicer,  or  any  cadet  officer  or  cadet 
petty  officer,  or  instructor,  as  well  as  every 
other  officer  stationed  at  the  United  States) 
Naval   Academy,  to  promptly   report  tc 
the  superintendent  thereof  any  fact  which 
comes  to  his  attention  tending  to  indicate 
any  \dolation  by  a  midshipman  or  mid- 
shipmen of  any  of  the  provisions  of  this 
Act  or  any  violation  of  the  regulations  of 
the    said    academy.     Any    naval    officer 
attached  to  the  academy  who  shall  fail  to 
make  such  report  as  provided  in  this  section 
shall  be  tried  by  court-martial  for  neglect 
of  duty  and  if  convicted  he  shall  be  dis- 
missed   from    the   service.     Any    civilian 
instructor  attached  to  the  academy  who 
shall  fail  to  make  such  report  as  provided 
in  this  section  shall  be  dismissed  by  the 
superintendent  of  the  academy  upon  the 
approval  of  the  Secretary  of  the  Navy." 
Act  of  June  5,  1920,  construed. — The  act 
of  June  5,  1920  (above  quoted),  in  so  far  aa  it  is 
not  retroactive,  is  amendatory  of  section  1519, 
Revised  Statutes,  and  provides  for  a  second  ex- 
amination of  the  midshipmen  found  deficient  at 
the  examination  at  the  close  of  the  term,  before 
the  Academic  Board  shall  pass  upon  the  ques- 
tion of  whether  they  shall  be  continued  at  the 
academy.     It  ap])lies  equally  to  the  annual 
and  semiannual  examinations  for  the  expression 


752 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1519. 


' '  term  "  and  not ' '  year "'  is  used  in  the  act.  (32 
Op.  Atty.  Gen.,  294.) 

Under  the  NaA^al  Academy  Regulations  the 
period  intervening  between  the  hrst  term  and 
second  term  of  the  academic  year  amounts  to 
one  day,  which  is  Sunday,  so  that  the  amount 
of  special  instruction  which  could  l)e  imparted 
to  midshipmen  found  deficient  at  the  semian- 
nual examination  would  be  practically  negligi- 
ble, but  an  interpretation  of  the  act  requires 
that  they  be  allowed  to  take  a  second  examina- 
tion.    (32  Op.  Atty.  Gen.,  294.) 

Midshipmen  found  deficient  at  the  annual 
examinations  at  the  close  of  the  academic  term, 
held  May  24-29,  1920,  whose  retention  at  the 
academy  or  in  the  ser\'ice  had  not  been  recom- 
mended by  the  Academic  Board  and  whose  res- 
ignations had  been  duly  submitted  and  accepted 
by  the  Secretary  of  the  NaAy  on  June  1,  1920, 
are  not  entitled  to  the  benefits  of  the  act  of 
June  5,  1920.  The  reinstatement  of  such  mid- 
sliipmen  could  not  take  place  otherwise  than 
by  appointment  by  the  Secretary  of  the  Navy, 
and  in  so  far  as  it  is  intended  to  affect  such  mid- 
shipmen the  said  act  is  contrary  to  the  Consti- 
tution relating  to  appointment  of  officers  of  the 
United  States  (32  Op.  Atty.  Gen.,  294,  citing 
19  Op.  Atty,  Gen.,  350,  U.  S.  v.  Germaine,  99 
U.  S.,  508,  U.  S.  V.  Mouat,  124  U.  S.,  303,  307). 

Academic  Board. — The  Academic  Board 
was  not  of  statutory  creation.  Like  many  other 
things  connected  with  the  Naval  Academy  it 
was  a  piece  of  "departmental  legislation,"  but 
it  has  since  been  recognized  by  law.  The 
"  Regulations  of  the  United  States  Naval  Acad- 
emy, 1867,"  page  10,  chapter  2,  under  the 
heading,  "Academic  Board,"  declared  that 
"the  Academic  Board  shall  be  composed  of  the 
following  officers:  The  superintendent;  the  com- 
mandant of  midshipmen;  four  senior  assistants 
to  the  commandant  of  midshipmen;  and  the 
heads  of  the  departments  of  mathematics; 
steam  enginery;  astronomy,  na\agation,  and 
survey;  natural  and  experimental  philosophy; 
ethics,  and  English  studies;  French  language; 
Spanish  language;  drawing."  It  further  pro- 
vided that  the  Academic  Board  should  be  con- 
vened for  the  transaction  of  business  at  the  call 
of  the  superintendent;  that  a  majority  of  the 
voting  members  should  constitute  a  quorum. 
Its  duties  were  defined  and  appertained  gen- 
erally to  the  internal  management  of  the  Acad- 
emy and  the  prosecution  of  studies.  Among 
the  statutes  recognizing  the  Academic  Board  is 
section  1519,  Revised  Statutes,  which  is  based 
upon  an  act  passed  July  16,  1862.  (File  5146, 
June  23,  1906.) 

Jurisdiction  of  Academic  Board  and 
Secretary  of  the  Navy. — Sections  1519  and 
1525,  Revised  Statutes,  leave  no  right  in  the 
Secretary  of  the  Navy  to  continue  at  the  Acad- 
emy cadets  who  have  been  found,  at  any  exam- 
ination, deficient  in  their  studies,  without  the 
recommendation  of  the  Academic  Board. 
These  sections  appear  to  be  wise  and  according 
to  the  reason  of  the  thing;  and  in  their  absence 
it  would  only  be  in  very  rare  and  hardly  con- 
ceivable instances  that  the  "care  and  super- 
vision "  intrusted  by  article  one  (Regs.  1876)  to 
the  Secretary  of  the  Navy  could  authorize  an 
unrecommended  revision  of  a  sentence  for  de- 
ficiency.   Pro  re  nata  intervention  by  the  Secre- 


tary would  lead  to  insubordination  on  the  part 
of  students,  and  would  become  a  fruitful  parent 
of  discord  amongst  the  authorities  of  the 
Academy.     (15  Op.  Atty.  Gen.,  634.) 

Sections  1519  and  1525,  Revised  Statutes,  ex- 
pressly provide  that  cadet  midshipmen  and 
cadet  engineers,  or  naval  cadets  as  they  are  now 
all  designated,  "found  deficient  at  any  exami- 
nation," shall  not  be  continued  at  the  Academy 
or  in  the  service  "except"  or  "unless"  upon 
the  recommendation  of  the  Academic  Board. 
A  regulation  of  the  Naval  Academy  to  the  same 
effect  had  been  in  force  for  some  years  when  the 
legislation  now  embodied  in  those  sections  was 
enacted,  and  the  reason  for  this  interference  of 
Congress  was,  no  doubt,  to  prevent  the  bad 
effect  on  the  discipline  of  the  institution  pro- 
duced by  the  occasional,  and  perhaps  not  al- 
ways well  considered,  interferences  of  the  Navy 
Department  with  the  operation  of  that  execu- 
tive regulation.     (19  Op.  Atty.  Gen.,  302.) 

Where  certain  naval  cadets  were  found  de- 
ficient at  the  semiannual  examinations  held  at 
the  Naval  Academy  in  January  1889,  and  with- 
out the  recommendation  of  the  Academic  Board 
were  granted  leave  of  absence  by  the  Secretary 
of  the  Navy  with  permission  to  report  to  the 
Superintendent  of  the  Academy  to  join  the 
next  fourth  class:  Held,  that  the  Secretary  had 
no  power  to  continue  these  cadets  in  the  Acad- 
emy without  the  recommendation  of  the  Aca- 
demic Board.     (19  Op.  Atty.  Gen.,  302.) 

Whenever  a  midshipman  is  found  deficient 
in  his  studies  as  the  result  of  any  examination, 
the  determination  of  the  Academic  Board  is 
final  and  conclusive.  (File  5146-1,  July  13, 
1906.) 

By  section  1515,  Revised  Statutes,  full  power 
is  given  the  Secretary  of  the  Navy  over  exam- 
inations for  admission:  Held,  that  he  also  has 
power  of  final  control  over  all  other  examina- 
tions. In  the  first  instance  the  details  of  the 
examinations  are  naturally  under  the  super- 
vision of  the  Academic  Board,  which  is  a  body 
recognized  by  the  statutes.  Clearly  the  Secre- 
tary has  not  the  power  to  order  the  Academic 
Board  to  recommend  the  retention  of  a  mid- 
shipman found  deficient  at  any  examination; 
but  it  would  seem  that,  so  far  as  the  details  of 
the  examinations  are  concerned,  the  Secretary 
may,  if  he  choose,  fix  them.  (36  J.  A.  G.  letter 
book,  195,  Mar.  19,  J 907.) 

Deficiency  in  conduct. — It  has  been  cus- 
tomary for  the  Academic  Board  to  recommend 
the  dropping,  turning  back,  or  retention  of 
midshipmen  by  reason  of  conduct,  simultane- 
ously with  similar  recommendations  founded 
upon  proficiency  or  the  reverse  in  their  studies; 
but,  while  in  the  latter  case  the  midshipmen 
are  subjected  to  an  examination  and  the  results 
of  this  examination  are  highly  material  in  de- 
termining the  recommendations  of  the  board, 
in  the  former  case  these  recommendations  are 
founded  entirely  upon  the  records  of  the  mid- 
shipmen and  no  one  is  in  fact  "found  defi- 
cient" in  conduct  "at  any  examination." 
Held,  therefore,  to  be  doubtful  whether  section 
1519  ever  applied  to  midshipmen  found  de- 
ficient in  conduct;  further  held  that,  if  api)li- 
cable  to  such  case,  the  act  of  April  9,  1906, 
section  1  (34  Stat.,  104,  quoted  above),  must  be 


753 


Sec.  1519. 


ri.2.  REVISED  STATUTES. 


The  Navy. 


considered  as  repealinp;,  pro  tanto,  section 
1519.     (File  514()1,  July  i:il!)0(i.) 

Whenever  a  inidsliipinan  is  found  deficient 
in  his  studies  aa  the  result  of  any  examination, 
the  determination  of  the  Academic  Board  is 
final;  when  found  deficient  in  conduct,  the 
procedure  prescribed  by  the  act  of  April  9, 
100(),  must  be  followed.  (File  5146-2,  Feb. 
13,  1907.) 

It  seems  quite  clear  from  the  act  of  April  9, 
1906,  that  amonp;  the  grounds  on  which  Congress 
expected  midshipmen  to  be  dismissed  was  an 
excess  of  demerit^,  since  in  the  words  of  that 
act  pro\ision  is  evidently  matle  for  that  very 
contingency.  Nothing  is  said  in  this  law  as  to 
the  dismissal  of  midshipmen  through  the  action 
of  the  Academic  Board,  but  unless  provision 
for  such  dismissal  had  been  made  in  express 
and  unequivocal  terms  in  some  law  existing  at 
the  time  of  the  enactment  of  said  act,  it  would 
seem  clear  that,  upon  established  principles  of 
statutory  construction,  this  method  of  dismis- 
sal for  misconduct  and  the  procedure  incident 
thereto  were  intended  by  Congress  to  be  ex- 
clusive of  any  others.  (File  5146-1,  July  13, 
1906.) 

Dismissal  for  accumulated  demerits  has  al- 
ways been  treated  by  the  Navy  Department  as 
dismissal  for  misconduct.  (25  Op.  Atty.  Gen., 
579.) 

Physical  deficiency. — Under  Revised  Stat- 
utes, section  1519,  providing  that  cadet  mid- 
shipmen found  deficient  at  any  examination 
shall  not  be  continued  at  the  Academy  unless 
upon  the  recommendation  of  the  Academic 
Board,  a  cadet  found  physically  ineligible  for 
appointment  in  the  Navy  or  Marine  Corps  has 
no  right  to  remain  at  the  Academy  unless  upon 
recommendation  of  the  Academic  Board. 
Where,  under  such  circumstances,  the  Aca- 
demic Board  found  the  cadet  proficient  for  the 
six  years'  course  and  complimented  him  Avith 
a  certificate  of  graduation,  he  having  served 
nearly  the  required  six  years,  and  the  Secretary 
of  the  Navy  disfharged  him  from  the  service 
on  the  same  date  on  account  of  physical  dis- 
ability, he  is  technically  a  graduate  but  not 
entitled  to  one  year's  pay  under  the  act  of 
August  5,  1882  (22  Stat.,  284,  quoted  under 
sec.  1522,  R.  S.),  notmthstanding  there  was  at 
the  time  of  his  discharge  a  surplus  of  graduates 
for  whom  no  vacancies  existed  in  the  lower 
grades.     (Potter  v.  U.  S.,  34  Ct.  Cls.,  13.) 

A  mid.shipman  found  deficient  in  any  ex- 
amination and  not  having  the  recommendation 
of  the  Academic  Board  has  no  right  to  remain 
at  the  Academy.  One  who  graduated  from  the 
Academy  after  the  act  of  March  7,  1912  (37 
Stat.,  73,  reducing  the  cour.'^e  to  four  years), 
but  "on  leave  of  absence  awaiting  physical 
reexamination  to  determine  fitness  for  com- 
mission as  ensign,"  is  in  the  pay  status  of  a 
midshipman  at  the  Academy  and  entitled  to 
pay  at  $600  per  annum,  provided  he  is  contin- 
ued in  the  service  upon  the  recommendation 
of  the  Academic  Board.     (20  Comp.  Dec,  141.) 

A  mid.shipman  completed  the  six  years' 
course  and  was  found  proficient  by  the  Aca- 
demic Board  on  examination  for  final  graduation, 
but  deficient  by  the  medical  examining  board, 
and  was  continued  in  the  service  until  it  could 
be  determined  whether  his  disability  was  of  a 


permanent  or  temporary  nature.  He  finally 
pa.ssed  his  phy.sical  examination  and  was 
appointed  ensign.  Paragraph  169  of  the  Reg- 
ulations of  the  United  States  Naval  Academy, 
1909,  enumerates  the  subjects  which  the  ex- 
amination for  final  graduation  shall  embrace, 
but  such  enumeration  does  not  inc;lude  a 
physical  examination.  Paragraph  167  pro- 
vides that  "no  midshipman  shall  pass  from  a 
lower  to  a  higher  class,  perform  the  two  years' 
service  afloat,  or  be  appointed  in  the  lower 
grades  of  any  branch  of  the  service  until  he 
shall  have  been  examined  by  a  board  of  not  less 
than  three  medical  officers  of  the  Navy  and 
pronounced  physically  qualified  to  perform 
all  his  duties."  Held,  that  the  successful 
passing  of  a  physical  examination  is  not  a 
prerequisite  to  the  final  graduation  of  a  mid- 
shipman, but  is  merely  a  condition  precedent 
to  his  promotion  or  appointment  in  the  lowest 
grades  of  the  line  of  the  Navy  and  Marine 
Corps,  and  therefore  in  this  case  the  midship- 
man finally  graduated  with  his  class  at  the 
termination  of  his  six  years'  course,  and  that 
the  date  of  his  final  graduation  was  the  same  date 
as  the  final  graduation  of  his  class.  (16  Comp. 
Dec,  734.) 

Naval  cadets  who  were  found  mentally  and 
professionally  qualified  upon  the  graduating 
examination  of  their  class  are  entitled  to  a 
certificate  of  graduation  notwithstanding  that 
they  were  reported  as  physically  disqualified 
for  the  naval  service.  There  is  no  authority 
in  the  law  for  stating  their  physical  disqualifi- 
cation in  the  certificates  to  be  given  them, 
for  the  reason  that  physical  condition  does  not 
enter  into  the  idea  of  graduation  except  in 
80  far  as  graduation  presupposes  a  sound  physi- 
cal condition  at  the  time  of  admission  to  the 
Academy.  Such  a  statement  would  be  objec- 
tionable as  out  of  place,  which  is  alone  a  good 
reason  for  omitting  it.  (19  Op.  Atty.  Gen., 
358.) 

See  below,  "Deficiency  upon  examination 
for  commission." 

Deficiency  upon  examination  for  com- 
mission.— The  recommendation  of  the  Aca- 
demic Board ,  that  a  midshipman  found  deficient 
upon  examination  for  appointment  as  ensign 
be  dropped  from  the  service,  is  not  final.  The 
laws  providing  for  the  appointment  of  ensigns 
do  not  confer  exclusive  powers  upon  the 
Academic  Board;  section  1519,  Revised  Stat- 
utes, is  properly  limited  to  "academic  exam- 
inations," and  does  not  extend  to  the  final 
examination  which  is  to  determine  the  mid- 
shipman's fitness  for  a  commission  in  the  Navy. 
That  section  was  passed  in  the  interest  of 
efficient  administration  and  internal  disci- 
pline of  the  Naval  Academy,  and  should  not 
1)6  read  into  the  laws  providing  for  the  appoint- 
ment of  ensigns.  A  contrary  conclusion  woukl 
deprive  the  constitutional  appointing  power  of 
all  jurisdiction  over  the  qualifications  of  candi- 
dates for  appointment  as  ensigns.  Held, 
therefore,  that  the  recommendation  of  the 
Academic  Board  in  this  case  may  be  dis- 
approved and  the  midshipman  continued  in 
the  service  until  further  reports  on  fitness  in 
his  case  may  be  received  and  considered  by  the 
department.     (File  5252-36,  May  5,  1910.) 


754 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1519. 


A  midshipman  who  develops  a  physical 
defect,  which  it  is  anticipated  might  in  the 
future  incapacitate  him  for  duty  in  the  Navy, 
may  legally  tender  his  resignation,  undated, 
and  place  same  in  the  hands  of  the  depart- 
ment -^vith  request  that  same  be  dated  and 
accepted  if  he  should  be  subsequently  found 
incapacitated  for  service  or  for  promotion  by 
reason  of  said  physical  defect  or  the  sequelae 
thereof;  and  upon  so  tendering  his  undated 
resignation  said  physical  defect  may  be  waived 
and  a  commission  issued  to  him  as  ensign. 
The  dating  and  accepting  of  said  resignation 
upon  the  occurrence  of  the  condition  stated 
would  be  entirely  legal.  (File  5252-50,  Maj^ 
14,  1912,  citing  Mimmack's  Case,  12  Op.  Attv. 
Gen.,  555,  10  Ct.  Cls.,  584,  97  U.  S.,  426.  See 
also  file  Nos.  13261-163-170  concerning  waivers 
of  rights  to  pensions,  retirement,  etc.,  by 
candidates  for  appointment  as  second  lieu- 
tenants in  the  Marine  Corps.) 

The  final  graduation  of  midshipmen  occurs 
two  years  from  the  date  of  their  formal  gradu- 
ation from  the  four  years'  course,  and  a  mid- 
shipman who,  when  the  date  of  final  gradua- 
tion arrived,  was  qualified  for  final  graduation 
aside  from  a  failure  to  pass  in  some  subjects  of 
professional  examination,  and  who  subsequent- 
ly qualified  in  those  sul)jects  and  was  given  a 
certificate  of  final  graduation  became  a  gradu- 
ated midshipman  from  said  date  of  final  grad- 
uation.    (17  Comp.  Dec,  298.) 

See  above,  "Physical  deficiency." 

Suspension  of  midshipman  without 
pay. — Where  it  is  within  the  power  of  the 
Secretary  of  the  Navy,  with  the  approval  of 
the  President,  to  dismiss  a  midshipman,  he 
may,  with  the  approAal  of  the  President,  sus- 
pencl  such  midshipman  for  one  year  without 
pay  for  due  cause.  Since  the  power  to  suspend 
is  derived  from  the  power  to  dismiss  absolutely, 
only  such  midshipmen  as  may  be  subject  to 
dismissal  can  be  so  suspended.  (C.  M.  0. 
31-1915,  citing  file  5252-72,   Sept.  20,   1915.) 

A  midshipman  suspended  for  one  year 
under  an  order  of  the  Secretary  of  the  Navy, 
with  the  written  approval  of  the  President, 
which  order  stated  that  said  suspension  was 
"without  pay,"  is  debarred  from  all  the  privi- 
leges and  benefits  of  hie  office  during  said 
period,  including  commutation  of  rations; 
during  the  year  of  suspension  the  midshipman 
is  practically  in  the  status  of  one  dismissed. 
(Comp.  Dec,  Nov.  13,  1915,  177  S.  and  A. 
Memo.,  3830.) 

The  Secretarjr  of  the  Navy,  with  the  approval 
in  writing  of  the  President,  may  suspend  a  mid- 
shipman for  one  year  without  pay  for  due  cause, 
but  only  such  midshipmen  as  are  subject  to  dis- 
missal can  be  so  suspended.  A  midshipman 
can  not  be  suspended  for  one  year  without  pay 
except  in  mitigation  of  a  legally  authorized  pun- 
ishment invohing  dismissal.  The  law  ex- 
pressly provides  that  a  midshipman  can  be  dis- 
missed for  a  single  act  of  hazing  only  pursuant 
to  the  sentence  of  a  court-martial.  Since  the 
Secretary  of  the  Navy,  acting  for  the  President, 
can  not  directly  dismiss  a  midshipman  for  one 
act  of  hazing  without  sentence  of  court-martial, 
it  follows  that  he  can  not  accomplish  such  dis- 
missal by  any  indirect  means;  and  if  it  were 
legal  to  suspend  a  midshipman  without  pay  for 


one  year  in  such  case,  it  would  be  legal  to  sus- 
pend him  without  pay  indefinitely,  which 
would  amount  in  effect  to  a  dismissal.  (File 
5252-72  :  1,  Sept.  21,  1915,  afiirming  file  5252- 
72,  Sept.  20,  1915.) 

Where  a  cadet  at  the  Military  Academy  had 
been  recommended  by  the  Academic  Board  to 
be  discharged  on  account  of  deficiency  in  stud- 
ies, the  Secretary  of  War  had  power  to  grant 
such  cadet  leave  of  absence  without  pay;  under 
the  circmnstances  he  might  lawfully  have  dis- 
charged the  cadet  absolutely,  and  the  placing 
of  him  on  leave  of  absence  was  a  minor  exercise 
of  the  power  of  dismissal.  The  cadet's  status 
thereby  became  that  of  an  officer  continued  on 
the  rolls  without  pay,  instead  of  that  of  an  offi- 
cer dismissed  absolutely  and  di-awing  no  pay. 
(10  Comp.  Dec,  795.) 

See  note  to  section  416,  Re^ised  Statutes, 
under  "Suspension  of  employees." 

Dismissal  ■without  court-martial. — Sec- 
tion 1624,  Revised  Statutes,  article  36,  restrict- 
ing dismissal  of  officers  of  the  Navy,  does  not 
extend  to  cadets  at  the  Naval  Academy,  who 
may  accordingly  be  dismissed  from  the  Acad- 
emy and  from  the  naval  ser\'ice  for  misconduct 
without  trial  by  court-martial.  There  are 
three  sorts  of  officers  known  to  the  Na\"y,  viz, 
commissioned,  warrant,  and  petty  (sec.  1410, 
R.  S.);  and  inasmuch  as  petty  officers  may  be 
discharged  from  the  service  with  bad  conduct 
discharge  by  sentence  of  a  smnmary  court- 
martial  (sec.  1624,  R.  S.,  art.  30),  it  seems  that 
by  "officers"  in  article  36  is  meant  at  most  only 
warrant  and  commissioned  officers.  Cadets  at 
the  Naval  Academy  have  neither  warrants  nor 
commissions;  the  object  of  the  studies  and  dis- 
cipline to  which  they  are  subjected  dming  the 
whole  of  the  course  at  the  Academy  is  to  fit  them 
for  appointment  as  midshipmen  (sec.  1521,  R. 
S.),  the  lowest  commissioned  grade  of  officers 
of  the  line  (sec.  1362,  R.  S.),  or  as  second  assist- 
ant engineers  (sec.  1394,  R.  S.),  the  lowest  grade 
of  officers  of  the  Engineer  Corps  (sec.  1476,  R. 
S.).  They  are  themselves,  by  statutory  defini- 
tion, not  to  be  included  in  general  in  legisla- 
tion confined  to  "officers"  of  the  Navy.  In 
the  early  days  of  the  Academy,  when  the  stu- 
dents were  merely  a  collection  of  midshipmen, 
this  was  different.  The  meaning  of  the  word 
"cadet"  is  to  the  same  effect.  As  a  cadet- 
midshipman  is,  ex  \i  termini,  not  a  midship- 
man, and  a  cadet-engineer  not  an  engineer,  so 
a  cadet  officer  or  a  cadet,  simply,  is  not  an  offi- 
cer. Cadets  at  Annapolis  are  not  liable  to 
court-martial  except  under  the  act  of  1874  for 
hazing  (citing  1  Op.  Atty.  Gen.,  276,  holding 
that  cadets  at  West  Point  are  subject  to  court- 
martial  only  where  expressly  authorized  by 
law),  and  therefore  are  not  entitled  to  a  priv- 
ilege which,  under  article  36,  is  evidently  given 
only  to  such  as  are  liable  in  general  to  the  juris- 
diction of  courts-martial.  Accordingly,  held 
that  a  regulation  of  1876,  providing  that  ca/lcts 
are  to  be  dismissed  by  the  Secretary  of  the 
Naw  for  offenses  other  than  hazing,  is  valid. 
(15  Op.  Atty.  Gen.,  634.) 

The  President  has  power  to  dismiss  a  delin- 
quent midshipman  from  the  Naval  Academy 
for  violation  of  the  regulations,  and  that  pow  er 
is  not  restricted  by  sections  1229  and  1624  of  the 
Revised  Statutes.     (Weller  v.  U.   S.,   41  Ct. 


755 


Sec.  1519. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


("Is.,  324.)  The  Secretary  of  the  Navy's  action 
an  February  7,  1!)05,  in  dismissing  a  midship- 
man from  the  Naval  Academy  for  continued 
violation  of  the  regulations  regarding  the  use  of 
tobacco,  is  presmnetl  to  have  been  the  action 
of  the  President;  particularly  as  the  President 
appointed  another  to  till  the  vacancy,  which 
appointment  was  signed  by  the  Secretary  of 
the  Na\'y  by  direction  of  the  President.  (Wel- 
lert'.  U.  S.,4lCt.  01s.,  324.) 

Under  the  act  of  March  2,  1895,  the  Secretary 
is  given  power  to  convene  courts-martial  for  the 
trial  of  naval  cadets,  but  it  is  not  mandatory, 
and  the  President  has  the  power  and  authority 
to  dismiss  naval  cadets,  or  "' midshipmen,  "  aa 
they  are  now  styled,  without  the  intervention 
of  trial  by  court-martial.  (Weller  v.  U.  S.,  41 
Ct.  Cls.,  324.) 

The  act  of  March  2,  1895,  and  the  other  laws 
relating  to  the  Naval  Academy  have  for  many 
years  been  construed  by  the  Navy  Department 
to  authorize  the  dismissal  of  students  without 
trial  by  court-martial,  which  has  often  been 
done.  Wliere  the  meaning  of  a  statute  is  doubt- 
ful, the  uniform  and  long-continued  construc- 
tion placed  upon  it  by  the  department  officers 
charged  with  its  execution  is  entitled  to  much 
weight.     (Weller  v.  U.  S.,  41  Ct.  Cls.,  324.) 

It  will  not  be  contended  that  a  midshipman 
at  the  Naval  Academy  can  not  be  dismissed,  or 
"not  continued  therein,"  which  is  the  same 
thing,  for  deficiency  at  an  examination  with- 
out a  trial  by  coiu-t-martial ;  and  if  the  Academic 
Board  can  do  this,  the  President  can  dismiss  a 
midshipman  because  of  a  deficiency  in  conduct, 
as  insubordination  or  disobedience  of  orders, 
particularly  when  the  regulations  so  provide. 
(Weller  v.  U.  S.,  41  Ct.  Cls.,  324.) 

That  students  at  the  Naval  Academy  are  and 
always  have  been  in  the  naval  ser\ice  in  some 
capacity  has  never  been  doubted,  and  it  was 
decided  in  Cook  v.  United  States  (128  U.  S., 
254)  that  they  were  "officers"  of  the  United 
States  A\  ithin  the  meaning  of  the  provisions  of 
the  act  of  March  3,  1883  (22  Stat.,  473),  respect- 
ing longevity  pay  of  officers  of  the  Navy.  In  the 
case  of  Morton  v.  United  States  (112  U.  S.,  1), 
under  a  similar  statute  providing  longevity 
pay,  it  was  held  that  the  time  of  service  of  a 
military  cadet  at  West  Point  is  to  be  regarded 
as  "actual  service  in  the  Army."  In  Hartigan 
V.  United  States  (196  U.  S.,  1G9,  38  Ct.  Cls., 
346)  the  claimant  was  summarily  dismissed 
from  the  West  Point  ]\lilitary  Academy  for  mis- 
conduct, and  it  was  held,  both  in  the  Court  of 
Claims  and  in  the  Supreme  Court  that  he  was 
not  an  officer  within  the  meaning  of  section 
1229,  Revised  Statutes,  and  hence  could  be  dis- 
missed without  trial  and  conviction  l)y  court- 
martial.  It  is  not  believed  that  the  law,  prop- 
erly construed,  makes  any  distinction  in  this 
respect  between  midshipmen  at  the  Naval 
Academy  and  cadets  at  the  Military  Academy. 
Neither  of  them  holds  either  a  commission  or  a 
warrant;  both  are  appointed  by  the  President; 
those  at  the  Military  Academy  are  called  cadets, 
and  those  at  the  Naval  Academy  are  now  called 
midshipmen.  There  may  have  been  a  time  in 
the  history  of  the  Government  when  a  midship- 
man should  have  been  regarded  as  an  officer 
within  the  meaning  of  section  1229,  Revised 
Statutes,  and  when  the  students  at  the  Naval 


Academy  were  on  a  different  footing  in  that 
regard  than  the  students  at  the  Military  Acad- 
emy; but  now  there  are  no  midshipmen  except 
those  appointed  to  the  Naval  Academy  and 
undergoing  instruction  therein  or  in  connection 
therewith.  Under  section  1519  midshipmen 
found  deficient  at  any  examination  may  be 
dropped  from  the  service.  Under  section  1547 
the  Secretary  of  the  Navy,  with  the  approval 
of  the  President,  may  issue  regulations  and 
instructions  for  the  Navy,  and  the  regulations 
of  the  Naval  Academy  providing  for  the  dis- 
missal of  midshipmen  were  presumably  made 
pursuant  to  such  power.  (Weller  v.  U.  S.,  41 
Ct.  Cls.,  324.) 

In  the  case  of  Hartigan  v.  United  States  (196 
U.  S.,  169,  38  Ct.  Cls.,  346),  which  held  that  a 
cadet  at  the  Military  Academy  was  not  an 
officer  within  the  meaning  of  section  1229,  both 
courts  in  their  opinions  point  out  a  clear  dis- 
tinction between  service  at  the  Academy  and 
in  the  Army,  and  that  while  the  military  cadets 
are  a  part  of  the  Army  they  are  not  officers  of 
the  Army,  but  rather  are  undergoing  instruction 
to  become  such;  and  in  the  opinion  of  the 
Court  of  Claims  this  significant  expression  oc- 
curs: "These  appointments  (to  the  Academy) 
are  made  l)y  the  President  without  the  ad\ace 
and  consent  of  the  Senate,  and  it  seems  plain 
that  Congress  did  not  intend  by  any  legislation 
that  had  been  enacted  to  withhold  from  him 
the  power  of  summary  dismissal  for  the  good  of 
the  academv,  for  such  a  power  can  wisely  be 
left  to  his  discretion."  (Weller  v.  U.  S.,  41  Ct. 
Cls.,  324.) 

The  case  of  Perkins  v.  United  States  (116 
U.  S.,  483,  20  Ct.  Cls.,  438),  where  the  claimant 
entered  the  academy  as  a  cadet-engineer  and 
after  graduation  therefrom  was  held  by  both 
courts  to  be  an  officer  within  the  meaning  of 
section  1229,  Revised  Statutes,  differs  from 
that  of  an  undergraduate  midshipman  at  the 
Naval  Academy,  in  that  the  former  was 
appointed  pursuant  to  sections  1522-1525, 
Revised  Statutes,  then  in  force,  which  required 
some  technical  knowledge  before  admission; 
that  he  had  graduated  from  the  Naval  Academy 
and  had  served  in  the  Na\'y  two  years  under 
orders;  that  the  course  then  prescribed  for 
cadet-engineers  was  four  years  (sec.  1524,  R. 
S.),  so  that  he  was  no  longer  a  cadet  and  neces- 
sarily must  have  been  an  officer  of  some  grade, 
and  by  his  pay  had  been  so  recognized.  It 
should  also  be  remarked  that  it  was  conceded 
in  the  Perkins  case  that  the  claimant  might 
have  been  dismissed  for  misconduct,  under 
the  provisions  of  section  1525,  Revised  Statutes, 
entirely  independent  of  section  1229.  (Weller 
V.  U.  S.,  41  Ct.  Cls.,  324.) 

In  the  case  of  Baker  v.  United  States  (125 
U.  S.,  646),  which  held  that  the  service  of  a 
midshipman  at  the  Naval  Academy  was  service 
as  an  "officer  in  the  Navy,"  within  the  mean- 
ing of  the  statute  providing  for  longevity  pay, 
the  Supreme  Court  in  its  opinion  lays  great 
stress  upon  the  fact  that  the  claimant  at  the 
time  of  his  appointment  to  the  Naval  Academy 
was  named  as  a  "midshipman"  pursuant  to 
the  law  then  in  force,  and  that  according  to 
law  then  in  force  midshipmen  were  ninth  in 
grade  in  the  active  list  of  the  officers  of  the 
Navy.     (Weller  i-.  U.  S.,  41  Ct.  Cls.,  324.) 


756 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1519. 


The  controlling  statutes  on  the  subject 
relative  to  the  MiUtary  Academy  are  not 
practically  the  same  as  those  affecting  the 
Naval  Academy,  but  are  essentially  analogous 
and  equivalent.  As  to  both  appointees  it  may, 
therefore,  be  said  that  the  laws  relating  to 
coiu"ts-martial  do  not  prevent  dismissal  for 
deficiency  in  studies  or  for  misconduct.  (25  Op. 
Atty.  Gen.,  579.) 

Prior  to  the  act  of  April  9,  1906,  a  right  to 
summarily  dismiss  midshijmien  had  been 
asserted  and  even  exercised  by  successive 
Secretaries  of  the  Navy,  although  it  had 
recently  been  disputed.  Almost  simultane- 
ously, however,  with  this  enactment,  the 
Court  of  Claims,  in  the  case  of  Weller  v.  United 
States,  decided  April  2,  1906,  sustained  this 
right.  It  seems  to  the  Navy  Department 
quite  clear  that  Congress  intended  by  this  law 
to  limit  the  discretionary  power  of  the  Secre- 
tary of  the  Navy  to  summarily  dismiss  mid- 
shipmen, and  to  provide  one  uniform  method 
of  procedm'e  by  which  midshipmen  should  be 
dismissed  from  the  academy  for  misconduct. 
(FUe  5146-1,  July  13,  1906.; 

The  Secretary  of  the  Navy,  with  the  written 
approval  of  the  President,  has  the  power  to 
dismiss  midshipmen  for  due  cause  in  any  case 
except  that  in  which  the  cause  consists  in  a 
"single  act  of  hazing."  A  midshipman  who  is 
recommended  for  punishment  for  a  "single 
act  of  hazing"  is  thus  in  the  unique  position, 
as  compared  with  other  offenses  against  Naval 
Academy  regulations,  of  being  protected  by 
statute  against  dismissal  except  by  sentence 
of  a  court-martial.  (File  5252-72,  Sept.  20, 
1915;  C.  M.  O.  31-1915.) 

The  Secretary  of  the  Navy,  acting  for  the 
President,  has  the  power  to  cUsmiss  a  midship- 
man for  insubordination.  This  power,  as  sus- 
tained by  the  Com't  of  Claims  in  the  case  of 
Weller  v.  United  States,  was  not  taken  from 
him  by  the  act  of  April  9,  1906  (34  Stat.,  104), 
I^roviding  for  the  trial  of  midshipmen  by  comt- 
martial  for  hazing.  Furthermore,  said  act 
relates  only  to  midshipmen  "at  the  Naval 
AcademJ^"  and  in  this  case  the  midshipman 
had  completed  his  four  years'  course  at  the 
academy  and  was  undergoing  the  two  years' 
course  at  sea  prior  to  final  graduation.  The 
dismissal  of  the  midshipman  in  this  case  being 
legal,  the  records  can  not  be  changed  so  as 
to  show  that  his  resignation  was  accepted. 
(File  5252-60,  Feb.  14,  1914.) 

Section  1229  and  article  36  of  section  1624  of 
the  Revised  Statutes  did  not  deprive  Congress 
of  power  to  make  any  provision  for  the  removal 
of  an  officer,  even  by  the  Executive  who 
appointed  him.  It  is  not  within  the  power  of 
a  legislature  to  deprive  its  successor  of  the 
power  of  repealing  an  act  creating  a  public 
office.     (Crenshaw  v.  U.  S.,  134  U.  S.,  99.) 

See  above,  under  "Deficiency  in  conduct." 

Court-martial  of  midshipmen  for  haz- 
ing, etc. — Cadets  at  Annapolis  are  not  liable 
to  coui-t-martial  except  under  the  act  of  1874, 
for  hazing.  ^15  Op.  Att}  .  Gen.,  634,  citing  1 
Op.  Atty.  Gen.,  276,  holding  that  cadets  at 
West  Point  are  subject  to  court-martial  only 
as  expressly  authorized  by  law.) 

The  commands  of  the  law  of   1874   (June 


23,  18  Stat.,  203),  are  imperative  and  require 
that  in  all  cases  where  it  shall  come  to  the 
knowledge  of  the  superintendent  of  the  Na- 
val Academy  that  any  midshipman  is  guiltj' 
of  the  offense  commonly  knowTi  as  hazing, 
"it  shall  be  the  duty  of  said  superintendent 
to  order  a  court-martial."  Under  these  cir- 
cumstances, the  superintendent  has  not  the 
right  to  exercise  a  discretion  as  to  whether  he 
shall  order  a  court-martial  for  the  trial  of  cer- 
tain midshipmen  in  whose  case  it  has  come  to 
his  knowledge,  as  the  result  of  a  preliminary 
examination  through  a  board  of  officers,  that 
they  are  guilty  of  the  offense  of  hazing.  It 
therefore  only  remains  for  him  to  order  a  court- 
martial  for  the  purpose  of  trying  them,  and 
should  they  be  either  convdcted  or  acquitted 
by  such  court-martial  the  responsibility  resting 
upon  the  superintendent  under  the  law  will 
have  been  fully  discharged.  A  determination 
of  the  question  whether  or  not  such  couA-iction 
or  acquittal  could  be  successfully  pleaded  in 
bar  of  a  criminal  prosecution,  instituted  in  the 
ci\il  courts  for  an  assault  or  other  crime  in- 
volved in  the  offense  of  hazing,  could  not  in 
any  possil)le  manner  aid  the  superintendent  in 
the  execution  of  the  law.  The  superintendent 
or  the  Secretary  might,  without  the  least  im- 
propriety, after  such  trials  are  had,  bring  all  the 
facts  to  the  attention  of  the  United  States 
attorney  for  the  district  of  ]\Iaryland ,  in  which 
event  the  question  of  jurisdiction  of  the  ci\Tl 
authorities  would  become  a  question  for  the 
consideration  of  the  Department  of  Justice. 
(25  Op.  Atty.  Gen.,  543.) 

The  act  of  March  3,  1903  (32  Stat.,  1198), 
does  not  confer  upon  the  superintendent  of  the 
Naval  Academy  or  the  Secretary  of  the  Na\'y, 
or  upon  both  conjointly,  the  power  summarily 
to  dismiss  from  the  Academy  without  trial  by 
court-martial  a  midshipman  found  guilty  of  the 
offense  of  hazing.  That  act  is  to  be  read  in 
connection  with  the  act  of  June  23,  1874  (18 
Stat.,  203),  requiring  the  superintendent  of 
the  Naval  Academy  to  order  a  court-martial 
in  all  cases  of  hazing  which  may  come  to  his 
attention,  and  there  is  nothing  in  the  later  act 
showing  a  purpose  upon  the  part  of  Congress 
to  disj^ense  \\ith  the  formality  of  requiring  a 
court-martial  for  the  trial  of  a  midshipman  upon 
the  charge  of  hazing.  The  phrase,  "found 
guilty,"  appearing  in  the  act  of  1903,  when 
read  in  connection  with  the  act  of  1874,  refers 
to  the  finding  of  a  court-martial  and  not  of  the 
superintendent  or  a  board  of  officers  other  than 
a  court-martial.  This  opinion  should  not  be 
applied  to  cases  other  than  hazing;  it  is  un- 
necessary to  decide  that  a  midshipman  may 
not,  under  certain  circumstances,  be  sum- 
marily dismissed  from  the  Naval  Academy 
without  first  being  tried  by  court-martial. 
(25  Op.  Atty.  Gen.,  543.) 

The  act  of  June  23,  1874  (18  Stat.,  203),  was 
in  terms  mandatory  that  a  "court-martial" 
be  ordered  by  the  superintendent  of  the  Naval 
Academy  in  any  case  of  hazing  which  came  to 
his  knowledge;  that  the  finding  of  such  court, 
when  appi'oved  by  the  superintendent,  should 
be  final;  and  that  the  accused,  if  found  guilty, 
"shall,  upon  the  recommendation  of  said 
court,  be  dismissed."  The  act  of  March  3, 
1903   (32   Stat.,    1198),   required  the  superin- 


767 


Sec.  1519. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


tondent  of  the  Naval  Academy  to  "make  such 
rules,  to  be  approved  l)y  the  Secretary  of  the 
Navy,  as  will  effectually  prevent  the  practice 
of  hazing;"  and  ])rovi(lo(i  that  any  cadet "  found 
guilty  "  of  participating  in,  or  encouraging  or 
countenancing  such  practice,  "shall  l)e  sum- 
marily expelled  from  the  academy  and  shall 
not  thereafter  be  appointed  to  the  corps  of 
cablets  or  be  eligible  for  appointment  as  a 
commissioned  ofhcer  in  the  Army  or  Navy  or 
Marine  Corps  until  two  years  after  the  gi-adua- 
tion  of  the  class  of  which  he  was  a  member." 
The  effect  of  these  statutes  was  to  deprive  the 
proper  administrative  officer  of  discretion  in 
dealing  with  the  offense  of  hazing  at  the  Naval 
Academy;  and  to  require  that  midshipmen 
charged  mth  hazing  be  brought  to  trial  by 
court-martial,  to  be  followed  upon  conviction 
by  summary  dismissal.  (File  26283-925,  Sept. 
4,  1915.) 

By  act  of  April  9,  1906  (34  Stat.,  104),  Con- 
gress repealed  'so  much  of  the  acts  approved 
June  twenty-third,  eighteen  hundred  and 
seventy-four  and  March  third,  nineteen  hun- 
dred and  three,  as  requires  the  superintendent 
of  the  United  States  Naval  Academy  to  con- 
vene a  court-martial  in  all  cases  when  it  shall 
come  to  the  knowledge  of  the  said  superin- 
tendent that  any  midshipman  lias  been  guilty 
of  the  offense  commonly  known  as  'hazing,' 
and  declares  the  finding  of  a  court-martial  so 
convened,  when  approved  by  the  said  super- 
intendent, final,  and  directs  that  any  midship- 
man found  gviilty  by  such  court-martial  shall 
be  summarily  dismissed  from  the  said  Academy. ' ' 
By  said  act  of  1906  it  was  further  provided  that 
"the  offense  known  as  'hazing'  may  hereafter 
be  proceeded  against,  dealt  with,  and  punished 
aa  offenses  against  good  order  and  discipline  and 
for  violation  and  breaches  of  the  rules  of  said 
Academy."  Thus  Congress  has  removed  the 
distinction  previously  made  between  hazing 
and  other  offenses  committed  by  midshipmen. 
But  one  restriction  is  placed  upon  the  discretion 
of  the  administrative  officers  in  dealing  with 
the  offense  of  hazing,  as  distinguished  from 
other  offenses  committed  by  midshipmen,  and 
that  is  that  "no  midsliipman  sliall  be  dismissed 
for  a  single  act  of  hazing  except  under  the  pro- 
visions of  section  three  of  this  act,"  viz,  pursu- 
ant to  the  sentence  of  a  court-martial  as  pro- 
vided by  the  act  of  June  23,  1874.  (File  26283- 
925,  Sept  4,  1915.) 

Trial  by  court-martial  is  not  now  required  in 
any  case  of  hazing,  it  being  left  entirely  to  the 
discretion  of  the  superintendent  whether  such 
trial  shall  be  had.  If  the  superintendent,  in 
the  exercise  of  the  discretion  thus  expressly 
vested  in  him  by  the  act  of  1906,  decides  that 
a  midshipman  should  be  tried  by  court-martial 
for  hazing,  then  the  superintendent's  decision 
must  be  approved  by  the  Secretary  of  the  Navy 
before  the  superintendent  would  be  authorized 
to  proceed  under  the  act  of  1874  to  order  a 
court-martial  and  cause  the  accused  midship- 
man to  be  brought  to  trial.  If  the  Secretary 
of  the  Navy  approves  tlie  superintendent's  de- 
cision that  a  trial  be  had,  tlien  the  court-martial 
is  not  required,  imder  the  act  of  1906,  to  impose 
a  sentence  of  dismissal,  but  may  sentence  the 
accused,  if  convicted,  to  any  punishment  au- 
thorized by  the  act  of  June  23,  1874  or  by  the 


act  of  Marcli  3,  1903,  or  l)y  the  rules  of  the 
Naval  Academy.  (File  2(5283-925,  Sept.  4, 
1915.) 

If  the  accused  is  charged  with  only  'a  single 
act  of  hazing,"  and  the  superintendent  decides 
not  to  bring  nim  to  trial  by  com't-martial,  or  the 
Secretary  of  the  Navy  does  not  approve  the 
superintendent's  recommendation  that  sucli 
trial  be  had,  then  the  law  of  1906  says  explicitly 
that  he  shall  not  be  dismissed.  He  may,  how- 
ever, be  punished  by  the  superintendent  in 
accordance  with  the  rules  of  the  academy, 
otherwise  than  by  dismissal.  (File  26283-925, 
Sept.  4,  1915.) 

If  the  accused  is  guilty  of  more  than  "a 
single  act  of  liazing, ' '  he  may  be  dismissed  with- 
out trial  by  court-martial;  but  in  that  event  he 
must  be  proceeded  against  in  accordance  with 
section  one  of  the  act  of  1900,  which  details  the 
procedure  to  be  followed  in  any  case  in  which 
the  superintendent  "shall  believe  the  contin- 
ued presence  of  any  midshipman  at  the  said 
Academy  to  be  contrary  to  the  best  interests  of 
the  ser\dce;"  that  is,  there  must  be  a  written 
report  by  the  superintendent,  a  reference  of  the 
report  to  the  accused  by  the  Secretary  of  the 
Navy,  with  opportunity  for  the  accused  to  make 
written  reply  thereto,  and  the  written  approval 
of  the  President  before  the  dismissal  may  be 
executed.  In  addition,  if  any  issue  of  fact  is 
raised  by  these  proceedings,  there  must  be  a 
"board  of  inquiry"  convened  by  the  Secretary 
of  the  Navy  to  pass  thereupon.  (File  26283- 
925,  Sept.  4,  1915.) 

The  words,  ' '  a  single  act  of  hazing, ' '  are  to  be 
taken  in  their  literal  sense.  If  an  accused  was 
guilty  of  but  one  "act"  of  hazing  he  can  not  be 
dismissed  without  trial,  notwitlistandmg  that 
several  different  persons  may  have  been  victims 
of  the  "single  act."  Thus,  one  order  obeyed 
by  several  midshipmen  would  be  only  a  ''single 
act"  of  hazing,  although  it  might  legally  be 
more  than  one  offense.  On  the  other  hand,  if 
one  midshipman  in  hazing  another  gives  several 
orders  which  are  obeyed,  this  would  constitute 
several  "acts"  although  there  was  only  one 
victim  and  the  several  distinct  transactions 
occurred  at  the  same  place  and  very  near  each 
other  in  one  continuing  attempt  to  defy  the 
law.     (File  26283-925,  Sept.  4,  1915.) 

A  midshipman  who,  while  absent  in  a  dis- 
tant and  foreign  station,  was  nominated  and 
confirmed  to  be  an  ensign,  "subject  to  exami- 
nation," but  who  was  never  examined,  never 
became  an  ensign;  and  having  in  the  meantime 
been  brought  to  trial  by  coui't-martial,  was 
properly  tried  as  a  midshipman.  (16  Op.  Atty. 
Gen.,  550.) 

Cadets  admitted  to  the  NaA'al  Academy  on 
10  May  and  4  September,  1886,  respectively, 
became  naval  cadets  in  the  full  sense  of  the 
term  upon  the  dates  named;  they  had,  on  those 
dates  respectively,  been  duly  nominated  to  the 
place,  accepted  the  nomination,  passed  suc- 
cessfully the  examination  required  by  law, 
taken  the  oath  prescribed  for  naval  cadets,  been 
assigned  to  and  entered  upon  the  discharge  of 
the  duty  pertaining  to  the  position  and  from 
those  dates  their  salaries  commenced.  Their 
appointments,  although  not  issued  until  the  11th 
of  October,  1886,  relate  back  by  express  recitals 
to  these  dates  respectively,  and  are  conclusive 


758 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1519. 


e^idence  of  the  appointments  at  the  date  afore- 
said. The  appointments  accordingly  took  ef- 
fect on  10  May  and  4  September,  1886,  so  as  to 
render  them  liable  to  trial  bv  court-martial. 
(18  Op.  Atty.  Gen.,  507.) 

The  minority  of  some  of  the  members  of  a 
court-martial  which  tried  a  midshipman  and 
sentenced  him  to  dismissal  from  the  Na^7•  does 
not  invalidate  the  proceedings  of  the  court- 
martial,  not^^ithstanding  that  at  common  law 
minority  might  have  been  such  an  objection  as 
would  invalidate  the  verdict  of  a  jury  or  a  judg- 
ment thereon.  \\Tiatever  effect  this  fact 
would  have  in  a  common  law  court,  it  has  noth- 
ing to  do  with  the  action  of  a  court-martial 
which  exists  by  A-irtue  of  statute  and  regula- 
tions conformable  thereto.  (16  Op.  Atty.  Gen., 
550.) 

To  constitute  the  offense  of  hazing  at  the 
Naval  Academy,  under  the  act  of  June  23,  1874, 
chapter  453,  it  is  essential  that  the  Aictim  should 
be  a  new  cadet  of  the  fourth  class.     The  act 
does  not  define  the  offense  against  which  the 
penalty  is  denounced.     This  is  not  unusual. 
Congress  frequently  affixes  a  penalty  to  a  com- 
mon law  offense  by  name,  \vithout  defining  it. 
In  such  cases  resort  must  be  had  to  the  com- 
mon law  to  ascertain  the  ingredients  of  the  of- 
fense.    In  this  case  the  statute  is  local  to  the 
Naval  Academy,  and  the  offense  named  is  un- 
known, either  to  the  common  or  statutory  law 
of  the  land.     Naval  cadets  could  not  be  guilty 
of  an  '"offense"  unless  there  was  some  rule  or 
regulation  prescribed  by  competent  authority 
to  be  offended.     Reference  must  therefore  be 
had  to  the  rules  and  regulations  in  force  at  the 
Naval  Academy  for  a  definition  of  the  "offense 
commonly  known  as  hazing."     An  exhaustive 
examination  of  the  rules,  regulations,  and  or- 
ders on  the  subject  shows  that  to  constitute  the 
offense  of  hazing  as  understood  at  the  time  of 
this  enactment  it  was  essential  that  the  \ictim 
of  the  maltreatment  should  be  a  new  cadet  of 
the  fourth  class.     Accordingly,  held  that,  unless 
the  charge  on  which  the  cadet  is  arraigned  al- 
leges that  the  A-ictim  of  the  maltreatment  or 
hazing  was  a  new  cadet  of  the  fourth  class,  a 
court-martial     organized    under    the    statute 
would  not  have  jurisdiction  to  try  it.     If  the 
charge  makes  the  allegation  and  the  proof  fails 
to  maintain  it,  the  court-martial  should  acquit 
the  accused.     A  charge  alleging  that  the  Aic- 
tim  of  a  cadet's  maltreatment  was  a  candidate 
for  admission  would  not  come  within  the  juris- 
diction of  a  court-martial  organized  under  this 
statute,  nor  would  proof  that  the  xictim  was  a 
candidate  authorize  con\'iction   on  a  charge 
properly  drawn.     (18  Op.  Atty.  Gen.,  292.) 

The  act  of  3  March,  1903  (32  Stat.,  1198),  pro- 
\ide3  that  the  superintendent  of  the  Naval 
Academy  shall  make  such  rules  "as  will  effect- 
ually prevent  the  practice  of  hazing,"  and  that 
a  "cadet  found  guilty  of  participating  in  or 
encouraging  or  countenancing  such  practice 
shall  be  expelled  from  the  Academy. ' '  Hazing 
has  such  a  well-known  meaning  that  it  need  not 
be  defined  by  rules  under  this  statute;  accord- 
ingly, the  dismissal  of  a  midshipman  pursuant 
to  a  sentence  of  court-martial  upon  the  r  harge 
of  hazing  was  legal,  the  particular  acts  set  forth 
as  constituting  such  offense  being  enumerated 


in  the  specifications  imder  said  charge.     (Mel- 
vin  V.  U.  S.,  45  Ct.  Cls.,  213.) 

The  regulations  of  the  Naval  Academy  of 
1876  described  hazing  as  "molesting,  annoy- 
ing, ridiculing,  maltreating,  or  assuming 
unauthorized  authority  over  the  new  cadets 
of  the  fourth  class"  by  the  older  cadets.  A 
charge  preferred  against  a  midshipman  for 
violation  of  the  act  of  June  23,  1874,  to  prevent 
hazing  at  the  Naval  Academy  was  within  the 
jm-isdiction  of  the  court-martial  convened 
pursuant  thereto,  the  specifications  of  the 
charge  setting  forth  that  the  offense  was 
committed  upon  "a  cadet  of  the  fourth  class," 
named  therein,  and  consisted  of  "pulling  the 
nose"  and  "otherwise  maltreating"  and 
"striking  at"  and  "otherwise  annojing"  the 
said  cadet;  it  elsewhere  appearing  in  the 
record  that  the  person  charged  with  the  offense 
was  then  a  cadet  of  the  second  class.  Con- 
ceding that  the  case  was  one  of  "personal 
rencounter  or  fight"  between  the  parties,  and 
that  the  facts  in  e\'idence  make  out  a  case  of 
that  sort,  this  would  go  only  to  show  that  the 
decision  of  the  court  was  wrong  in  con\icting 
the  accused,  not  that  it  acted  without  jurisdic- 
tion ;  but  it  was  the  duty  of  the  court  to  deter- 
mine the  truth  or  falsity  of  the  charge  upon  the 
testimony  adduced,  and  its  decision  when 
regularly  approved  by  the  proper  authority 
has  the  effect  of  a  final  judgment  which  can  not 
be  collaterally  brought  into  question.  Whether 
the  decision  was  correct  or  erroneous  could  not 
affect  the  validity  of  the  court's  finding  when 
regularly    approved.     (18    Op.    Atty.    Gen., 

376.) 

A  member  of  the  fourth  class  at  the  Naval 
Academy  who  failed  to  pass  his  examinations 
and  who  was  reappointed  to  the  same  class 
the  following  year  was,  during  said  year,  as 
much  an  "older  cadet"  within  the  definition 
of  the  offense  of  "hazing"  as  a  cadet  who 
originally  entered  at  the  same  time  and  had 
been  advanced  to  a  higher  class.  All  who  are 
not  "new  cadets  of  the  fourth  class"  and  there- 
fore liable  to  be  victims  of  "hazing,"  should 
be  held  to  be  "old  cadets"  and  capable  of 
being  the  perpetrators  of  the  offense.  The 
length  of  service  at  the  Academy  which  takes 
a  cadet  out  of  the  one  category  and  into  the 
other  can  not  be  determined  by  any  general 
rule  but  must  be  governed  by  the  local  cus- 
toms and  traditions  and  the  popular  meaning 
of  the  terms.     (18  Op.  Atty.  Gen.,  507.) 

President's  approval  of  sentence  of 
dismissal  or  suspension. — The  act  of  23 
June  1874  (18  Stat.,  203 ),  pro\-iding  for  the  court- 
martial  of  cadet-midshipmen  at  the  Naval 
Academy  is  not  repealed  by  the  act  of  2  March 
1895  (28  Stat.,  838),  which  provides  that 
sentences  of  suspension  and  dismissal  approved 
by  the  superintendent  "'shall  not  be  carried 
into  effect  until  confirmed  by  the  President." 
Accordingly,  held  that  the  dismissal  of  a  mid- 
shipman upon  sentence  of  a  court-martial 
convened  under  the  act  of  1874,  approved  by 
the  superintendent,  was  legal.  (Melvin  v. 
U.  S.,  45  Ct.  Cls.,  213.)  .    . 

As  a  midshipman  is  neither  a  commissioned 
nor  a  warrant  officer,  a  sentence  of  dismissal 
imposed  bv  court-martial  convened  by  the 
commander-in-chief  of  the  Atlantic  Fleet  need 


759 


Sec.  1519. 


Pt.  2.  RE  VISED  STAT  UTES. 


The  Navy. 


not  Ix'  suhinittcd  to  tho  President  for  con- 
lirmation,  hut  may  l>e  carried  into  execution 
upon  conlirmation  of  the  olticer  ordering;  the 
court,  as  provideil  by  article  53,  Articles  for 
the  Government  of  the  Navy  (sec.  1624,  R.  S.); 
neither  the  President  nor  tne  Secretary  of  the 
.Navy  has  lawful  authority  to  approve  or  dis- 
a])prove  the  sentence  in  such  a  case  (citing  II 
Op.  Atty.  Gen.,  251).  (File  26262-198,  Nov. 
13,  1<)08.') 

As  a  midshipman  is  neither  a  commissioned 
nor  warrant  officer,  it  seems  that  he  may  be 
dismissed  pursuant  to  a  sentence  of  a  court- 
martial  without  the  express  approval  thereof 
by  the  President,  unless  there  be  some  explicit 
statutory  provision  requiring  such  executive 
ai)proval.     (16  Op.  J.  A.  G.,  70,  Nov.  2,  1911.) 

In  the  case  of  a  midshipman  tried  by  general 
court-martial  by  order  of  the  commander-in- 
chief  of  the  Atlantic  Fleet  and  sentenced  to 
dismissal,  the  commander-in-chief  ha\'ing 
approved  the  proceedings,  finding,  and  sen- 
tence, and  stated  that,  "in  conformity  -with 
article  53  of  the  Articles  for  the  Government 
of  the  Navy  (section  1624  of  the  Re\'ised 
Statutes),  the  record  is  respectfully  referred  to 
the  Secretary  of  the  Navy  for  transmittal  to 
the  President,"  the  action  of  the  convening 
authority  was  approved  by  the  Secretary  of  the 
Navy,  October  6,  1909,  with  the  statement 
that'reference  to  the  President  is  "unnecessary 
in  the  case  of  midshipmen. "(G.  C.  M.  Order 
No.  36,  Oct.  13,  1909.) 

It  is  to  be  noted  that  the  act  of  March  2, 1895 
(28  Stat.,  838),  which  authorized  the  trial  of 
midshipmen  by  "general  courts-martial"  (con- 
vened by  the  Secretary  of  the  Navy)  for  any 
offense,  provided  that  sentences  of  suspension 
and  dismissal  must  be  confirmed  by  the 
President  before  being  executed.  It  may  be 
contended  that  approval  of  the  President  is 
necessary  before  such  sentences  may  be  exe- 
cuted in  hazing  cases,  where  the  court-martial 
is  convened  by  the  superintendent  under  the 
act  of  1874.  It  would  be  advisable  to  have 
such  sentences  so  confirmed,  thus  avoiding 
any  question  on  this  ground,  although  this  is 
not  believed  to  be  necessary.  (File  26283-925, 
Sept.  4,  1915;  C.  M.  O.  31-1915.) 

The  notice  to  a  midshipman  by  the  Secretary 
of  the  Navy  that  the  President  had  approved 
the  sentence  of  a  court-martial  in  1868  dis- 
mi.s,siiig  him  from  the  Navy  is  evidence  both 
of  approval  and  promulgation.  The  President 
acts  through  the  Secretaries  of  War  and  of  the 
Navy  in  such  matters;  a  promulgation  is  not 
necessarily  a  publication  in  a  newspaper. 
(16  Op.  Atty.  Gen.,  550.) 

In  the  case  of  a  midshipman  tried  by  general 
court-martial  by  order  of  the  commander  in 
chief  of  the  North  Atlantic  Fleet  and  sen- 
ten(  ed  to  be  dismissed  from  the  United  States 
naval  service,  the  proceedings,  findings,  and 
sentence  were  approved  by  the  convening 
authority  and  the  record  was  submitted  by 
the  department  to-  the  President  "in  con- 
formity \vith  article  53  of  the  Articles  for  the 
Government  of  the  Navy  (sec.  1624,  R.  S.), 
with  the  recommendation  that  the  sentence 
be  confirmed,  but  that,  in  \dew  of  the  fact  that 
the  court  unanimously  recommended  clemency 
it  be  commuted  to  the  punishment  set  forth 


below,"  viz,  that  he  "be  turned  back  into  and 
become  a  member  of  the  next  lower  class  of 
mid.shipmen,  the  present  first  class  at  the 
United  States  Naval  Academy;  to  continue  in 
the  meantime  on  probationary  sea  duty;  to  take 
temporary  rank  at  the  head  of  the  class  to  which 
he  is  reduced;  and,  finally,  to  take  rank  as  a 
member  of  that  cla.ss  upon  its  graduation  at 
the  end  of  the  prescribed  six  years'  course,  in 
accordance  with  the  requii-ements  for  deter- 
mining the  same  as  applied  to  members  of  that 
class";  which  action  was  accordingly  taken  by 
the  President  as  recommended.  (G.  C.  M. 
Order  No.  77,  Sept.  1,  1905.  Note:  On  March 
1,  1909,  the  sentence  of  dismissal  imposed  by  a 
general  court-martial  convened  by  the  com- 
mander in  chief  of  the  Pacific  Fleet  for  the 
trial  of  a  midshipman  was  mitigated  by  the 
Secretary  of  the  Navy  in  the  same  manner  as 
set  forth  above,  without  submission  to  the 
President;  see  G.  C.  M.  Order  No.  10,  Mar.  1, 
1909.  In  another  case,  on  the  same  date,  the 
Secretary  of  the  Navy,  without  reference  to 
the  President,  mitigated  a  sentence  of  dis- 
missal imposed  by  a  general  court-martial 
convened  by  the  commander  in  chief  of  the 
Pacific  Fleet,  so  that  the  accused  midshipman, 
if  commissioned  at  the  completion  of  his  final 
examination,  "will  be  commissioned  as  next 
to  the  lowest  number  in  his  class" ;  see  G.  C.  M. 
Order  No.  9,  Mar.  1,  1909.) 

When  sentence  of  dismissal  is  execu- 
ted.— Where  the  commander  in  chief  who  con- 
vened a  court-martial  approved  a  sentence  of 
dismissal  imposed  by  said  court  upon  a  mid- 
shipman, but  concluded  with  the  statement 
that  "the  record  is  respectfully  referred  to  the 
Secretary  of  the  Navy,"  held  that  this  action 
did  not  show  an  intention  on  the  part  of  the 
convening  authority  to  execute  the  sentence  at 
the  time,  but  implied  that  the  record  was  for- 
warded to  the  Secretary  of  the  Navy  in  order 
that  the  midshipman  might  be  dismissed  and 
the  sentence  executed  by  the  department; 
accordingly,  mere  publication  by  the  com- 
mander in  chief  of  his  action  did  not  operate  to 
dismiss  the  midshipman  from  the  service,  but 
the  sentence  remained  unexecuted  and  sub- 
ject to  mitigation  by  the  President  in  the  ex- 
ercise of  his  pardoning  power.  (File  26262-198, 
Nov.  13,  1908.  Note:  In  this  case  the  Pres- 
ident issued  a  formal  pardon  to  the  midship- 
man in  question,  on  condition  that  he  take 
rank  at  the  foot  of  his  class  and  if  commissioned 
be  commissioned  as  the  lowest  number  therein.) 

Arrest  of  midshipman  pending  investi- 
gation and  action. — A  midshipman  may 
properly  be  placed  under  arrest  pending  action 
on  a  recommendation  by  the  superintendent 
of  the  Naval  Academy  for  his  dismissal.  The 
fact  that  a  court  of  inquiry  may  be  ordered  to 
investigate  the  allegations  against  him  does  not 
of  itself  require  his  being  released  from  arrest. 
(C.  M.  O.  22—1915,  citing  file  28028-203:1,  June 
8,  1915.) 

Minor  punishments  imposed  without 
court-martial. — The  act  of  March  2,  1895 
(28  Stat.,  838),  did  not  deprive  the  proper 
administrative  officers  of  the  power  to  impose 
punishment  other  than  dismissal  for  \aolation 
of  Naval  Academy  regulations,  where  the  officers 
of  the  academy  consider  that  the  best  inter- 


760 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1519. 


ests  of  the  institution  will  be  promoted  by  the 
imposition  of  minor  punishments  by  them- 
selves, without  the  intervention  of  a  court- 
martial  or  without  resorting  to  the  power  of 
dismissal.     (File  26283-925,  Sept.  4,  1915.) 

Effect  of  dismissal. — There  is  no  law  pro- 
hibiting the  appointment  of  a  former  midship- 
man as  an  officer  of  the  Navy  because  of  his 
dismissal  from  the  Na^'al  Academy  on  Septem- 
ber 30,  1915,  such  dismissal  not  ha\ang  been  for 
hazing  nor  pursuant  to  sentence  of  a  court- 
martial,  but  in  accordance  with  section  1  of 
the  act  approved  April  9,  1906  (34  Stat.,  104\ 
upon  investigation  of  charges  consisting  prin- 
cipally of  false  swearing.  Accordingly,  the 
question  whether  such  appointment  should  be 
made  is  one  of  policy  and  not  of  law.  (FUe 
26283-925:4,  Aug.  7,  1916.) 

The  only  offense,  if  any,  which  creates  a 
statutory  disqualification  for  reappointment  of 
a  midshipman  is  that  of  hazing.  The  spirit  of 
the  laws  is,  however,  against  the  reappointment 
of  any  person  who  has  been  dismissed  from  the 
Navy,  as  will  be  seen  by  reference  to  section 
1441,  Revised  Statutes.  (File  5252-43,  Oct.  5, 
1911.) 

The  act  of  June  23,  1874  (18  Stat.,  203),  pro- 
vided for  the  trial  by  court-martial  and  dis- 
missal of  any  midshipman  guilty  of  hazing,  and 
concluded,  "and  the  cadet  so  dismissed  from 
said  Naval  Academy  shall  be  forever  ineligible 
to  reappointment  to  said  Naval  Academy." 
The  act  of  March  3,  1903  (32  Stat.,  1198),  pro- 
vided that  any  midshipman  found  guilty  of 
participating  in  or  encouraging  the  practice  of 
hazing  should  be  summarily  expelled  from  the 
Academy  and  should  not  thereafter  be  re- 
appointed to  the  Academy  or  be  eligible  for 
appointment  as  a  commissioned  officer  in  the 
Army,  Na\y,  or  Marine  Corps  "until  two  years 
after  the  graduation  of  the  class  of  which  he 
was  a  member."  The  act  of  April  9,  1906  (34 
Stat.,  104),  pro'vides  that  no  midshipman  shall 
be  dismissed  for  a  single  act  of  hazing  except 
after  trial  and  conviction  by  court-martial  and 
expressly  repeals  portions  of  the  two  laws  above 
cited,  but  says  nothing  about  ineligibility  for 
reappointment  of  midshipmen  dismissed  for 
hazing,  which  appears,  therefore,  to  continue 
in  effect.     (File  5252-43,  Oct.  5,  1911.) 

The  act  of  August  29,  1916  (39  Stat.,  589), 
provides  that  "all  former  officers  of  the  United 
States  naval  service,  including  midshipmen, 
who  have  left  that  ser\dce  under  honorable  con- 
ditions *  *  *  and  who  shall  have  enrolled 
in  the  Naval  Reserve  Force,  shall  be  eligible 
for  membership  in  the  Fleet  Naval  Reserve." 
Held,  that  a  midshipman  who  was  dismissed  by 
sentence  of  court-martial  is  not  eligible  for 
membership  in  the  Fleet  Naval  Reserve,  al- 
though he  has  been  pardoned  for  the  offense  for 
which  dismissed.  (File  26282-287:4,  Mar.  16, 
1918;  C.  M.  O.  30-1918;  31  Op.  Atty.  Gen.,  225.) 

A  midshipman  having  been  legally  dis- 
missed, the  records  can  not  be  changed  to  show 
that  his  resignatioti  was  accepted.  (File  5252- 
60,  Feb.  14,  1914.) 

The  act  of  June  23,  1874  (chapter  453),  to 
prevent  hazing  at  the  Naval  Academy  and  pro- 
viding that  a  cadet-midshipman  dismissed  pur- 
suant thereto  "shall  be  forever  ineligible  to 


reappointment  to  said  Naval  Academy"  was 
designed  to  cut  off  all  chance  of  reinstatement 
or  reappointment  fi-om  such  cadet;  accordingly, 
without  considering  very  carefully  what  the 
effect  of  a  pardon  by  the  President  might  be, 
or  whether  after  an  unconditional  pardon  a  re- 
appointment is  strictly  legal  or  not,  held  that 
the  President  would  not  be  justified  in  al)ro- 
gating  the  clear  intent  and  plain  meaning  of 
the  statute,  and  the  Attorney  General  wishes 
strongly  to  advise  against  any  such  cotirse  as 
will  tend,  by  indirection,  to  nullify  the  statute; 
the  parties  who  consider  themselves  aggrieved 
should  apply  to  Congress  for  a  change  of  the 
law;  while  the  statute  remains  in  force  the 
President  should  not  interfere  to  relieve  the 
party  found  guilty.  (15  Op.  Atty.  Gen.,  80. 
See  31  Op.  Atty.  Gen.,  225,  noted  under  sec. 
1441,  R.  S.)  _ 

The  question  whether  a  dismissed  midship- 
man is  eligible  to  vote  depends  upon  the  law  s 
of  the  State  in  which  he  claims  the  right,  and  is 
not  one  under  the  jurisdiction  of  the  Navy 
Department.  The  question  whether  a  dis- 
missed midshipman  is  elieible  to  hold  a  State 
office  is  similarly  not  under  the  cognizance  of 
the  Navy  Department.  With  reference  to  his 
eligibility  to  hold  a  Federal  position,  under  tne 
civil  8er\ace  rules  and  regulations  any  person 
who  has  been  dismissed  from  the  military  or 
naval  service  is,  it  is  understood,  barred  from 
examination  for  the  United  States  civil  service 
within  one  year  from  the  date  of  such  dismissal. 
Likewise  it  is  pro\'ided  by  the  Federal  statutes 
that  any  officer  who  has  been  dismissed  from 
the  Navy  by  sentence  of  court-martial  shall 
never  again  become  an  officer  of  the  Navy. 
Also,  with  specific  reference  to  midshipmen  it 
is  provided  by  law  that  any  midshipman  sum- 
marily expelled  from  the  Academy  for  hazing 
shall  not  thereafter  be  reappointed  or  be  eli- 
gible for  appointment  as  a  commissioned  officer 
in  the  Army,  Navy,  or  Marine  Corps  until  two 
years  after  the  graduation  of  the  class  of  which 
he  was  a  member.  (File  5252-79,  June  19, 
1916.) 

Reinstatement  of  midshipmen. — A  mid- 
shipman who  has  been  dismissed  for  misconduct 
by  order  of  the  President  pursuant  to  law  can 
not  be  legally  reinstated  in  his  former  position 
by  revocation  of  the  order  of  dismissal.  The 
only  way  in  which  such  a  former  midshipman 
can  legally  obtain  readmission  to  the  Naval 
Academy  would  be  by  new  appomtment  in  tne 
manner  pro\dded  for  any  other  candidate. 
The  President's  action  can  not,  upon  the  sub- 
mission of  additional  evidence,  be  reconsidered 
and  revoked,  and  the  midshipman  thereby 
reinstated  in  his  former  position.  (File  5252- 
72,  Sept.  27,  1915;  affirmed,  5252-73,  Oct.  1, 
1915;  sustained  by  Attorney  General,  Oct.  15, 
1915,  30  Op.  Atty.  Gen.,  457. 

The  President  is  not  authorized  to  reopen 
the  case  of  a  midshipman  who  has  been  dis- 
missed from  the  Naval  Academy  with  a  view 
to  revoking  the  order  of  dismissal  and  rein- 
stating him.  (30  Op.  Atty.  Gen.,  457,  follow- 
ing 25  Op.  Atty.  Gen.,  579.) 

A  midshipman  who  has  satisfactorily  com- 
pleted the  course  for  the  iirst  year  at  the  Naval 
Academy  but  who  in  the  following  year  is  found 
deficient  and  allowed  to  resign  need  not  be  re- 


761 


Sec.  1520. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


quired,  when  j^'iven  a  new  appointment,  to  ^o 
o\  er  the  course  for  the  first  year  a  second  time, 
J)ut  may  lepially  recommence  the  course  for  the 
second  year,  provided  that  such  action  is  rec- 


ommended by  the  Academic  Board.     (('.  M. 
O.  12—1915,  citing  fde  52.52-65,  Mar.  12,  1915.) 
For  other  cases  poe  notes  to  sections  1514, 
1515,  and  1517,  Revised  Statutes. 


Sec.  1520.  [Academic  course.]     The  academic  course  of  cadet  midshipmen 
shall  be  six  years.— (3  Mar.,  1873,  c.  230,  s.  1,  v.  17,  p.  555.) 


Amendments  to  this  section  were  made  by  the 
laws  noted  under  section   1512,   Revised 
Statutes,     which    changed    the    title    of 
students  at  the  Naval  Academy  to  "mid- 
shipmen;" and  by  act  of  March  7,  1912 
(37  Stat.,  73),  which  provided  "that  the 
course  at  the  Naval  Academy  shall  be 
four  vears." 
By  act  of  March  4,  1917  (39  Stat.,  1182 1,  it  was 
provided    that    "the    President,    in    his 
discretion,    is   authorized   to    reduce   the 
course  of  instruction  at  the  Naval  Academy 
from  four  to  three  years  for  a  period  of 
two  years  from  the  date  of  the  approval  of 
this  act,  and  may  during  said  two  years 
graduate  classes  which  have  completed  a 
three-year  course." 
By  act  of  April  2,  1918  (40  Stat.,  501),  it  was 
pro\dded  "that  the  President  be,  and  he 
is  hereby,  authorized,  until  August  first, 
nineteen    hundred    and    twenty-one,    to 
reduce,   in  his  discretion,   the  course  of 
instruction   at  the   United   States   Naval 
Academy  fi'om  four  to  three  years  and  to 
graduate   classes   which   have   completed 
such  reduced  courses  of  instruction." 
By  act  of  August  5,  1882  (22  Stat.,  285),  it  was 
provided  "that  the  Secretary  of  the  Navy 
may  prescribe  a  special  course  of  study 
and  training  at  home  or  abroad  for  any 
naval  cadet;"  as  to  change  of  title  from 
"naval  cadet"  to  "midshipman"  see  note 
to  Section  1512,  Re^^sed  Statutes. 
By  act  of  March  4,  1913  (37  Stat.,  891),  it  was 
pro\dded  that  "hereafter  the  service  of  a 
midshipman  at  the  United  States  Naval 
Academy,  or  that  of  a  cadet  at  the  United 
States  Military  Academy,  who  may  here- 
after be  appointed  to  the  United  States 
Naval  Academy,  or  to  the  United  States 
Military  Academy,  shall  not  be  counted 
in  computing  for  any  purpose  the  length 
of  service  of  any  officer  in  the  Navy  or  in 
the  Marine  Corps." 
By  act  of  May  20,  1886  (24  Stat.,  69),  provision 
was  made  for  instruction  at  the   Naval 
Academy    as    to   the    effect   of   alcoholic 
drinks  and  narcotics,  and  for  the  removal 
of  anv  officer,  superintendent  or  teacher 
who  sKall  refuse  or  neglect  to  comply  with 
this  pro\'ision. 
Sea  service  as  part  of  six-year  course. — 
As  shown  by  the  regulations'  governing  the 
Naval  Academy,  sea  service  for  several  years, 
and  "other  than  in  practice  ships,"  has  uni- 
formly  been   a    part  of  the  academic  course 
at  the  Naval  Academy  since  its  establishment 
until  now.     Naval  education  before  the  estab- 
lishment   of    the    academy    was,    of    course, 
obtained  in  great  measure  whilst  the  student 
(midshipman)    was    undergoing    sea    8er\T.ce. 
The    earliest    appointees    to    the     academy 
(excluding  the  midshipmen  who  were  at  first 


collected  from  service  and  sent  thither), 
which  appointees  were  designated  acting  mid- 
shipmen, after  a  partial  course  on  shore  were 
sent  to  sea  for  several  years,  and  then  returned 
to  Annapolis  and  finished  their  studies  there. 
These  appointees  at  the  close  of  the  earlier 
course  on  shore  received  a  certificate  which 
testified  to  their  fitness  to  go  to  sea;  and  before 
the  end  of  their  sea  service  they  became  mid- 
shipmen, continuing,  however,  to  be  students 
of  the  academy.  Subsequently  (1851)  the 
two  previous  courses  on  shore  pursued  by 
appointees  to  the  academy,  one  before  and 
the  other  after  sea  serAdce,  were  consolidated 
into  a  single  term  of  four  years  preliminary  to 
sea  service.  This  system  has  continued  in 
existence  ever  since;  the  act  of  July  16,  1862 
(ch.  183),  in  the  meantime  requiring  students 
to  be  styled  midshipmen  throughout  the  whole 
course,  and  this  style  having  been  again 
changed  to  that  of  cadet-midshipmen  by  the 
act  of  1870.  (15  Op.  Atty.  Gen.,  637;  see 
sec.  1512,  R.  S.,  and  note  thereto.) 

The  regulation  issued  by  the  Secretary  of 
the  Navy  requiring  the  students  or  midship- 
men at  the  Naval  Academy,  after  the  comple- 
tion of  their  purely  academic  studies,  to  per- 
form a  term  of  duty  on  shipboard  in  order  to 
acquaint  themselves  with  practical  navigation 
and  seamanship,  is  a  perfectly  valid  regulation; 
and  the  act  of  Jidy  11,  1862,  section  11  (12 
Stat.,  585),  providing  that  students  at  the 
Naval  Academy  shall  be  commissioned  en- 
signs if  successful  upon  their  final  graduating 
examination,  should  be  construed  as  giving 
distinct  legislative  sanction  to  the  regulation 
of  the  department,  then  in  force,  by  which 
that  examination  was  reqiured  to  be  taken 
after  completion  of  this  period  of  instruction 
on  shipboard.  It  must  be  assumed  that  Con- 
gress, when  it  made  the  law  of  1862,  had  in 
mind  the  regidations  which  had  been  pre- 
scribed and  enforced  under  its  own  authority, 
and  which,  so  long  as  they  were  in  operation 
and  remained  unchanged  by  competent  au- 
thority, had,  as  Congress  well  knew,  the  effi- 
ciency of  a  statute.     (11  Op.  Atty.  Gen.,  1.58.) 

The  last  two  years  of  the  academic  course  of 
cadet-midshipmen  were  spent  at  sea  in  other 
than  practice  ships.  After  four  years  at  the 
academy  they  were  temporarily  detached  from 
that  institution,  by  orders  of  the  Navy  Depart- 
ment, and  were  sent  to  sea  singly  or  in  squads. 
On  shipboard  they  performed  such  active 
duties  as  were  assigned  to  them.  At  the  end 
of  the  two  years  they  were  required  to  return 
and  did  return  to  the  Naval  Academy,  where 
thev  were  subjected  to  a  "final  graduating  ex- 
amination" before  the  Academic  Board.  If 
successfid  at  siich  examination  they  received 
appointments  as  midshipmen,  and  were  there- 
after classified  in  the  Navy  Register  as  having 
"graduated  "  at  that  date-  and  they  were  never 


762 


The  Navy. 


Ft.  2.  RE  VISED  STAT  UTES. 


Sec.  1520. 


so  designated,  -either  in  the  Navy  Register  or 
elsewhere,  until  after  they  had  passed  snch 
examination  at  the  end  of  the  six  years'  course. 
(U.  S.  V.  Redgrave,  IIU  U.  S.,  474,  475.) 

The  words  "final  graduating  examination" 
in  section  11  of  the  act  of  July  16,  1862,  chapter 
183,  and  "graduating  examination"  in  section 
12  of  the  act  of  July  15,  1870,  chapter  295, 
signify  that  examination  which  under  the  reg- 
ulations of  the  Naval  Academy  takes  place 
after  the  prescribed  term  of  sea  service  has  been 
performed.  (15  Op.  Atty.  Gen.,  637;  recon- 
sidered and  affirmed,  16  Op.  Atty.  Gen.,  296.) 

The  "final  graduating  examination"  re- 
ferred to  by  the  act  of  July  16,  1862  (12  Stat., 
583),  wliich  provided  that  midshipmen  pass- 
ing such  examination  shall  be  commissioned 
ensigns,  was  not  the  final  academic  examina- 
tion of  the  Naval  Academy,  but  the  last  ex- 
amination referred  to  in  the  regulations  exist- 
ing at  the  time  when  the  act  was  passed,  and 
which  required  a  final  examination  after  cer- 
tain sea  service.  (Benjamin  v.  U.  S.,  10  Ct. 
Cls.,  474.) 

The  statute  in  express  terms  provides  that 
"the  academic  course  of  cadet-midshipmen 
shall  be  six  years."  If  the  Navy  Department 
had  assumed  to  make  any  regulations  by  which 
the  final  graduation  should  take  place  in  less 
time,  such  regulations  woiUd  have  been  void. 
But  it  did  not  so  assume.  It  arranged  for  a 
two-year  coTirse  afloat  as  a  part  of  the  academic 
course,  and  exacted  a  preliminary  examina- 
tion to  test  the  cadet's  qualifications  therefor. 
But  the  cadet  afloat  was  a  member  of  the 
academy.  He  still  was  subject  to  a  final  ex- 
•  amination  at  that  institution,  and  without  such 
examination  sTiccessfully  sustained  never  be- 
came a  graduate.  He  was  not  so  denominated 
until  then,  either  in  the  Navy  Register  or  else- 
where; and  it  was  not  until  that  final  test  had 
been  sustained  that,  either  by  the  practice  of 
the  academy  or  by  the  provision  of  the  statute, 
he  did  or  could  receive  his  certificate  of  grad- 
uation. There  is  a  very  plain  distinction  be- 
tween his  case  and  that  of  a  cadet-engineer, 
fully  explained  in  United  States  v.  Redgrave 
(116  U.  S.,  474,  noted  below).  (Crenshaw  v. 
U.  S.,  134  U.  S.,  99.) 

The  regulations  prescribing  the  qualifica- 
tions for  appointment  of  cadet-engineers  fixed 
a  higher  average  age  by  two  years  for  cadet- 
engineers  entering  the  academy  than  was 
required  by  law  for  cadet-midshipmen  so  en- 
tering. After  completing  the  four-year  course, 
cadet-engineers  were  permanently  detached 
from  the  academy,  and  were  never  required 
to  return  to  that  institution.  They  remained 
in  active  service  at  sea,  or  upon  other  duty,  two 
or  three  years  or  longer,  until  vacancies  oc- 
curred in  the  grade  of  assistant  engineer,  when 
they  were  ordered,  singly  or  in  groups,  for  ex- 
amination for  promotion,  under  the  provisions 
of  section  1392  of  the  Revised  Statutes,  before 
a  board  of  engineer  officers  which  held  its 
sessions  at  Philadelphia.  (U.  S.  v.  Redgrave, 
116  U.  S.,  474,  475.) 

The  certificate  given  to  the  midshipman  at 
the  end  of  four  years  spent  in  the  academy  dif- 
fered in  its  terms  from  the  certificate  issued  to 
the  cadet-engineer  in  the  words  "preparatory 


to  the  two  years'  course  afloat."  Cadet-engi- 
neers were  not  undergraduates  when  they  were 
performing  the  service  incident  to  the  two  years 
following  their  study  at  the  academy,  but  were 
then  in  the  discharge  of  the  duties  incident  to 
a  period  between  graduation  and  promotion. 
The  cadet-midshipman  at  the  end  of  the  two 
years'  course  afloat  was  required  to  return  to  the 
academy,  subjecting  himself  again  to  some 
extent  to  the  jurisdiction  of  the  institution  in 
order  that  an  academic  board  might  determine 
whether  his  acquirement  afloat  was  sufficient, 
in  connection  with  his  scholarship  at  the  insti- 
tution, to  justify  his  certificate  of  graduation. 
His  education  was  theoretical  and  practical; 
the  one  he  acquired  in  the  immediate  institu- 
tion, the  other  on  the  high  seas;  but  each  ac- 
quii'ement  came  within  the  course  of  study 
covered  by  a  period  of  six  years.  According 
to  the  decision  of  the  Supreme  Court  the  term 
of  service  of  a  cadet-engineer  was  but  four 
years.     (Harmon  i;.  U.  S.,  23  Ct.  Cls.,  132.) 

Sea  service  eliminated  by  reduction  of 
course  to  four  years.^ — Prior  to  the  act  of 
March  7,  1912  (37  Stat.,  73),  the  course  at  the 
Naval  Academy  was  six  years  (sec.  1520,  R.  S.), 
the  first  four  of  which  were  spent  in  pursuing 
the  academic  studies  at  the  academy,  and  the 
remaining  two  years  at  sea,  upon  the  successfid 
termination  of  wMch,  as  determined  by  a  final 
examination,  the  midshipmen  were  commis- 
sioned ensigns.  The  four  years  at  the  academy 
constituted  an  undergraduate  course,  and  the 
two  years'  service  at  sea  was  in  the  nature  of  a 
postgraduate  course.  The  act  of  May  13,  1908 
(35  Stat.,  128),  made  two  pay  grades  for  mid- 
shipmen by  providing  that  those  at  the  acad- 
emy, that  is,  those  in  the  undergraduate  course, 
should  receive  pay  at  the  rate  of  $600  per  an- 
num, and  that  after  graduation  from  the  acad- 
emy, that  is,  after  completing  the  four  years' 
undergraduate  course  and  while  performing  the 
two  years'  service  at  sea^the  postgraduate 
course^they  should  receive  pay  at  the  rate  of 
$1,400  per  annum.  The  effect  of  the  act  of 
March  7,  1912,  was  to  eliminate  the  two  years' 
service  at  sea — the  postgraduate  course — and 
also  the  pay  grade  pro^dded  for  those  thus  previ- 
ously serving.  It  follows,  therefore,  that  the 
only  grade  of  midshipmen  now  authorized  by 
law  is  that  for  those  pursuing  the  four  years' 
course  at  the  academy.  (20  Comp.  Dec,  141. 
Note:  The  act  of  May  13,  1908,  35  Stat.,  128, 
contained  the  following  provision,  which  is  that 
referred  to  in  this  decision:  "The  pay  of  mid- 
shipmen shall  hereafter  be  six  hundred  dollars 
per  annum  while  at  the  Naval  Academy,  and 
one  thousand  four  hundred  dollars  per  annum 
after  graduation  from  the  Naval  Academy.") 

The  effect  of  the  act  of  March  7,  1912  (37 
Stat.,  73),  was  to  eliminate  the  two  years  at  sea 
and  also  the  pay  grade  provided  for  those 
previously  serving  at  sea.  It  follows,  there- 
fore, that  the  only  pay  for  midshipmen  now 
authorized  by  law  is  that  for  those  pursuing 
the  four  years'  course  at  the  Naval  Academy, 
viz,  $600  per  annum,  and  this  is  the  base  pay 
of  midshipmen  within  the  meaning  of  the  act 
of  August  29,  1916  (39  Stat.,  587),  establishing 
the  Naval  Reserve  Force  and  pro\dding  that 
"the  annual  retainer  pay  of  officers  of  the  Fleet 
Naval  Reserve  shall  be  two  months'  base  pay 


•54641°— 22- 


-49 


763 


Sec.  1620. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


of  the  corresponding  rank  in  the  Navy."  (23 
Comp.  Dec.,  279.) 

For  laws  governing  pay  of  midshipmen,  see 
note  to  Section  ]55(),  Revised  Statutes. 

Sea  service  may  be  made  part  of  four- 
year  course. —  Lender  existing  laws  the  curric- 
uhim  at  the  Naval  Academy  may  be  so  changed 
by  the  Secretary  of  the  Navy  as  to  permit  of  the 
following:  "To  send  one  undergraduate  class 
of  midshipmen  to  sea  for  one  year  and  have 
them  pursue  a  course  on  board  sHip — at  the  end 
of  the  year  return  them  to  the  Naval  Academy 
for  examination  in  the  studies  pursued;  the 
Academic  Board  to  lay  out  a  course  to  be  pur- 
sued and  the  subjects  in  which  to  be  examined. 
The  course  to  be  entirely  practical  in  its  nature 
and  include  na\agation,  ordnance  and  gun- 
nery, seamanship,  and  engineering."  (File 
5252-76,  Apr.  1,  1916.) 

The  course  of  instruction  for  midshipmen, 
whether  pursued  at  the  Naval  Academy  or  else- 
where, is  a  matter  of  regulation  in  the  discre- 
tion of  the  Secretary  of  the  Navy;  there  is  noth- 
ing contained  in  the  laws  relating  to  midship- 
men which  would  preclude  the  Secretary  of  the 
NaAy  from  sending  one  class  of  midshipmen  to 
eea  for  a  year.  (File  5252-76:1.  May  1,  1916; 
affirmed,  file  5252-76:2,  May  3,  1916.) 

Former  midshipmen  not  required  to 
repeat  coirrse  on  reappointment. — A  mid- 
shipman who  has  satisfactorily  completed  the 
course  for  the  first  year  at  the  Naval  Academy 
but  who,  in  the  following  year,  is  found  defi- 
cient and  allowed  to  resign,  need  not  be  re- 
quired, when  given  a  new  appointment,  to  go 
over  the  course  for  the  first  year  a  second  time, 
but  may  legally  recommence  the  course  for  the 
second  year  proAdded  that  such  action  is  rec- 
ommended by  the  Academic  Board.  (C.  M.  O. 
12—1915,  citing  file  5252-65,  Mar.  12,  1915.)  _ 

Leave  of  absence  during  course. — A  mid- 
shipman granted  a  temporary  leave  of  absence 
while  attached  to  and  serving  on  a  vessel  at  sea 
in  other  than  practice  ships  was  not  thereby 
detached  from  duty  at  sea  on  board  said  vessel 
and  continued  entitled  to  the  higher  rate  of  pay 

EroA-ided  by  law  for  such  duty.     (14  Comp. 
'ec,  208.) 

Midshipmen  are  not  merely  students  being 
educated  at  the  expense  of  the  Government,  but 
are  officers  in  the  naval  ser^dce  and  as  such  their 
salary,  fixed  by  law,  can  no  more  be  increased 
or  diminished  than  can  the  salary  of  any  other 
officer  in  the  naval  service  which  is  fixed  by 
law.  Accordingly,  where  granted  leave  of  ab- 
sence by  the  Secretary  of  the  Navy  for  sickness 
or  other  cause,  they  are  still  entitled  to  pay 
during  the  period  of  such  leave  at  the  same  rate 
they  were  receiving  at  the  academy.  (8  Comp. 
Dec,  410.) 

For  other  cases  see  note  to  section  1519,  Re- 
vised Statutes,  under  "Suspension  of  mid- 
shipman without  pay." 

Whether  service  of  midshipmen  during 
course  at  academy  is  ' "  service "'  in  Navy. — 
The  question  involved  is  whether  plaintiff, 
while  he  was  a  midsliipman,  was  serving  as  an 
officer  or  enlisted  man  m  the  Navy,  within  the 
meaning  of  the  act  of  March  3,  1883  (22  Stat., 
473),  pro\iding  for  crediting  officers  with  the 
actual  time  that  they  may  have  "ser\-ed"  as 
officers  or  enlisted  men  in  the  Regular  or  Volun- 


teer Army  or  Navy,  or  both.  The  Government 
contended  that  it  was  immaterial  whether  as  a 
student  he  is  or  is  not  to  be  regarded  as  an 
officer  of  the  Navy,  because  he  did  not,  whilst 
a  student  at  the  Naval  Academy, ' '  serve  "  either 
as  an  officer  or  an  enlisted  man  in  the  sense  of 
the  act  of  1883.  It  was  denied  l)y  the  United 
States  that  the  entry  of  a  pupil  into  the  acad- 
emy is  his  entry  into  the  naval  service,  or  that 
the  period  of  his  pupilage  is  actual  service  with- 
in the  meaning  of  the  act  of  1883;  and  it  was 
argued  that  he  does  not  enter  into  actual  service 
until  he  is  appointed  either  in  the  line  of  the 
Navy,  the  Marine  Corps,  or  the  Engineer 
Corps;  that  as  a  student  he  does  not  serve  but 
is  jMoparing  to  serve;  that  he  does  not  render 
ser\ice  to  the  Government  but  is  receiAing 
favors  from  it;  that  he  can  only  commence 
serving  after  his  graduation,  such  service  de- 
pending upon  his  graduating  merit;  and  that 
compensation  is  given  him  not  as  a  payment 
for  service  rendered  but  as  a  gratuity  and  an 
allowance  made  to  him  for  his  support  in  his 
preparation  for  ser\ice  to  be  rendered:  Held, 
that  claimant  is  entitled  to  be  credited,  under 
the  act  of  March  3,  1883,  with  the  time  he  so 
served  as  a  midshipman,  on  the  ground  that 
ser\ice  as  a  midshipman  at  the  Naval  Academy 
was  service  as  an  officer  in  the  Navy.  (U.  S. 
V.  Baker,  125  U.  S.,  646.  Note:  In  this  case 
the  claimant  was  appointed  a  midshipman  on 
Sept.  30,  1867,  and  continued  to  serve  as  such 
after  the  act  of  July  15,  1870,  sec.  12,  16  Stat., 
334,  which  changed  the  designation  of  students 
to  "cadet-midshipmen."  The  decision  in  this 
case  was  followed  in  U.  S.  v.  Cook,  128  U.  S., 
254,  in  the  case  of  a  cadet-midshipman  appoint- 
ed after  the  act  of  July  15,  1870.  See  Morton' 
V.  V.  S.,  112  U.  S.,  1,  holding  that  the  time  of 
service  of  a  military  cadet  at  \X"est  Point  is  to  be 
regarded  as  "actual  service  in  the  Army," 
under  a  statute  pro\iding  longeAity  pay.  See 
also  note  to  sec.  1512,  R.  S.) 

It  is  true  that  a  student  is  at  the  Naval  Acad- 
emy only  for  education,  but  the  education  is  at 
the  request  and  for  the  benefit  of  the  Govern- 
ment rather  than  of  himself.  A  raw  recruit  is 
not  sent  to  the  front  until  he  has  had  a  course  of 
instruction,  discipline,  and  drill  in  camp. 
That  the  time  thus  spent  would  constitute  serv- 
ice in  the  Army  no  one  would  doubt.  Edu- 
cation at  the  academy,  though  of  a  higher 
order,  is  required  and  justified  by  the  same 
principle.  (Baker  v.  U.  S.,  23  Ct.  Cls.,  181; 
affirmed,  125  U.  S.,  646.) 

In  the  computation  of  their  longevity  pay, 
officers  of  the  Naval  Reserve  Force  are  entitled 
to  credit  for  previous  ser\ice  in  the  Navy  as 
cadet-engineers.     (24  Comp.  Dec,  629.) 

In  the  case  of  Mo^er  v.  United  States  (42 
Ct.  Cls.,  86),  it  was  decided  that  a  student  at 
the  Naval  Academy  under  instruction  during 
the  Civil  War  '  'served  "  during  the  Ci-vil  War 
within  the  meaning  of  the  act  of  March  3,  1899, 
section  11  (30  Stat.,  1007),  relating  to  the  rank 
and  pay  of  retired  officers  who  served  during 
the  Civil  War.  This  decision  followed  the 
doctrine  laid  down  in  Baker  v.  United  States 
(125  U.  S.,  646).  In  the  case  of  Jasper  v. 
United  States  (43  Ct.  Cls.,  368),  it  was  decided 
that,  under  identical  conditions,  the  claimant 
did  not  "serve"  during  the  Civil  War  while 


764 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1521. 


a  student  at  the  Naval  Academy,  and  that  the 
decision  in  the  Moser  case  had  been  erroneously 
made,  in  ignorance  of  the  act  of  June  29,  1906 
(34  Stat.,  554),  which  limited  the  benefits  of 
Ci^dl  War  service  to  any  officer  who  served 
during  the  Civil  War  '  'othei-wise  than  as  a 
cadet."  Held,  that  no  appeal  having  been 
taken  from  the  decision  in  the  Moser  case  that 
decision,  notwithstanding  that  it  may  have 
been  in  error,  is  final  and  binding  upon  the 
Government  and  entitles  the  claimant,  so  long 
as  he  may  be  on  the  retired  list  of  the  Navy,  to 
the  pay  benefits  provided  by  law  for  retired 
officers  who  "served"  during  the  Civil  War; 
that  the  law  of  a  case  may  sometimes  be 
settled  wrong,  but  when  it  is  once  settled  it  is 
none  the  less  final;  that  the  court  could  not 
have  been  right  in  both  theM  Dser  and  the  Jasper 
cases,  but  that  its  conflicting  decisions  '  'made 
the  law"  in  each  of  the  two  cases;  and  accord- 
ingly that  Moser  is  entitled  to  increased  pay 
on  the  retired  list  in  accordance  with  the 
former  decision  in  his  case  for  periods  subse- 
quent to  that  covered  in  the  former  suit  and  for 
which  the  accounting  officers  of  the  Treasury 
had  refused  to  allow  such  increased  pay. 
(Moser  v.  U.  S.,  49  Ct.  Cls.,  285.) 

The  decision  of  the  Court  of  Claims  that  a 
retired  officer  who  was  a  student  at  the  Naval 
Academy  during  the  Q\\\\  W^ar  is  entitled  to 
the  increased  pay  pro\-ided  for  retired  officers 
who  "served"  duiing  the  Civil  War  by  the 
act  of  March  3,  1899  (30  Stat.,  lOO?),  does  not 
estop  the  Secretary  of  the  Navy  from  denying 
such  officer  the  increased  rank  on  the  retired 
list  pro^dded  by  the  same  law;  the  Navy 
Department  being  of  opinion  that  time  spent 
by  students  at  the  Naval  Academy  under 
instruction  was  not  service  in  the  Navy  within 
the  meaning  of  the  law.  (28  Op.  Atty.  Gen., 
352.)  The  Secretary  of  the  Na^-y  can  not  be 
compelled  by  mandamus  proceedings  to  place 
the  name  of  the  officer  in  question  upon  the 
retired  list  with  the  rank  of  rear  admiral. 
(U.  S.  ex  rel.    Moser  v.  Meyer,  38  App.  D.  C, 

A  cadet  ser%dng  in  the  Coast  Guard  Academy 
when  the  Coast  Guard  is  operating  as  a  part  of 
the  Navy  in  time  of  war  is  a  person  '  'serving 
in  the  naval  forces  of  the  United  States" 
within  the  meaning  of  the  act  of  February  24, 
1919  (40  Stat.,  1151,  sec.  1406),  prodding  for 
payment  of  $60  on  resignation  or  discharge. 
(26  Comp.  Dec,  419.  Compare,  26  Comp. 
Dec.,  236,  holding  that '  'a  cadet  of  the  United 
Military  Academy  while  in  training  there  as  a 
student  is  not  a  person  'serving  in  the  military 
or  naval  forces  of  the  United  States '  within  the 


meaning  of  section  1406  of  the  act  of  Feb.  24, 
1919,  40  Stat.,  1151,  and  therefore  is  not 
entitled  to  the  $60  war  service  payment  pro- 
\'ided  by  said  act  when  honorably  discharged . " ) 

A  midshipman  at  the  Naval  Academy  is  a 
"person  ser\T.ng  in  the  naval  forces  of  the 
United  States,"  and  one  resigning  from  the 
naval  service  under  honorable  conditions  is 
entitled  to  the  allowance  of  $60  authorized 
by  the  act  of  February  24,  1919.  (File 
26543-224:11,  May  9,  1919;  26543-224:34,  Aug. 
25,  1919.) 

The  act  of  July  1,  1918  (40  Stat.,  717), pro- 
vided "that  hereafter,  during  the  existence  of 
war  or  of  a  national  emergency  declared  by 
the  President  to  exist,  any  commissioned  or 
warrant  oflScer  of  the  Navy,  Marine  Corps,  or 
Coast  Guard  of  the  United  States  on  the  retired 
list  may,  in  the  discretion  of  the  Secretary  of 
the  Navy,  be  ordered  to  active  duty  at  sea  or 
on  shore;  and  any  retired  officer  performing 
such  active  duty  in  time  of  war  or  national 
emergency,  declared  as  aforesaid,  shall  be 
entitled  to  promotion  on  the  retired  list  to  the 
grade  or  rank,  not  above  that  of  lieutenant 
commander  in  the  Navy  or  major  in  the  Marine 
Corps  or  captain  in  the  Coast  Guard,  and  shall 
thereafter  receive  the  pay  and  allowances  there- 
of, which  his  total  active  service  as  an  officer 
both  prior  and  subsequent  to  retirement,  in  the 
manner  rendered  by  him,  would  have  enabled 
him  to  attain  in  due  course  of  promotion  had 
such  serAdce  been  rendered  continuously  on  the 
active  list  during  the  period  of  time  last  past." 
Held  that  the  words  "total  active  service  as  an 
officer"  mean  active  service  as  an  officer  of  the 
kind  previously  defined  in  the  same  pro\dsion, 
viz,  a  "commissioned  or  warrant  officer  of  the 
Navy,  Marine  Corps,  or  Coast  Guard,"  and  that 
ser\dce  as  a  midshipman  at  the  Naval  Acad- 
emy, or  service  as  a  midshipman  at  sea  after 
graduation  from  the  academy,  should  not  be 
considered  in  determining  the  amount  of 
"total  active  service  as  an  officer."  (File 
26509-225:11,  July  12,  1918;  affirmed,  file 
26509-225:16.  Nov.  6,  1918,  and  26509-225:17, 
Jan.  21,  1919.) 

By  act  of  March  4,  1913,  (37  Stat.,  891),  it  was 
pro\dded  that  "hereafter  the  ser\dce  of  a  mid- 
shipman at  the  United  States  Naval  Academy, 
or  that  of  a  cadet  at  the  United  States  Military 
Academy,  who  may  hereafter  be  appointed  to 
the  United  States  Naval  Academy,  or  to  the 
United  States  Military'  Academy,  shall  not  be 
counted  in  computing  for  any  purpose  the 
length  of  service  of  any  officer  in  the  Na\y  or 
in  the  Marine  Corps." 


Sec.  1521.  [Appointments  on  graduation.]  When  cadet  midshipmen  shall 
have  passed  successfully  the  graduating  examination  at  the  Academy,  they 
shall  receive  appointments  as  midshipmen  and  shall  take  rank  according  to 
their  proficiency  as  shown  by  the  order  of  their  merit  at  date  of  graduation. — 
(15  July,  1870,  c.  295,  s.  12,  v.  16,  p.  334.) 


Amendments  to  this  section  were  made  by  act 
of  August  5,  1882  (22  Stat.,  285),  wliich 
changed  the  title  of  all  undergraduates  at 
the  Naval  Academy  to  "naval  cadets," 
provided  for  appointment  of  naval  cadets. 


on  completion  of  the  six  years'  course,  "to 
fill  vacancies  in  the  lower  grades  of  the  line 
and  Engineer  Coi^ps  of  the  Na\'y  and  of  the 
Marine  Corps,"  and  provided  that  "so 
much    of    section    fifteen    hundred    and 


765 


Sec.  1521. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


twenty-one  of  the  Revised  Statutes  as  is 
inconsistent  lierewith  is  hereby  repealed;" 
by  act  of  March  ;i.  1883  (22  Stat.,  472), 
which  changed  the  title  of  '•midshipmen" 
to  "ensiijns  (junior  grade);"  by  act  of 
June  2(3,  1884  (23  Stat.,  (30),  which  provided 
"that  from  and  after  tlie  passage  of  this  act 
all  graduates  of  the  Naval  Academy  who 
are  assigned  to  the  line  of  the  Navy,  on 
the  successful  comi>letion  of  the  six  years' 
course,  shall  be  comiuL'isioned  ensigns  in 
the  Navy,"  and  that  "the  grade  of  junior 
ensign  in  the  Navv  is  hereViy  abolished  " ; 
by  act  of  March  2,  1889  (25  Stat,.  878), 
which  provided  for  a  division  of  the  first 
class,  commencing  their  fourth  year  at  the 
Naval  Academy,  into  two  divisions,  who 
were  to  pursue,  respectively,  separate 
courses  to  fit  them  for  the  line  of  the  Navy 
and  of  the  IMarine  Corps,  and  for  the  Engi- 
neer 0oq)8  of  the  Navy,  and  provided  that 
from  the  final  graduates^  of  the  line  and 
Marine  Corjis  di\ision  at  the  end  of  their 
six  years'  course,  "appointments  shall  be 
made  hereafter  as  it  shall  be  necessary  to 
fill  vacancies  in  the  lowest  gi'ades  of  com- 
missioned officers  of  the  line  of  the  Na\'y 
and  Marine  Corps,"  and  that  "vacancies 
in  tlie  lowest  grades  of  the  commissioned 
officers  of  the  Engineer  Corps  of  the  Navy 
shall  be  filled  in  like  manner  by  appoint- 
ments from  the  final  graduates  of  the  Engi- 
neer division  at  the  end  of  their  six  years' 
course,"  and  that  "not  less  than  two  shall 
be  appointed  annually  to  the  Engineer 
Corps  of  the  Navy,  nor  less  than  one  an- 
nuallv  to  the  ^Marine  Corps;"  by  act  of 
July  2(3,  1894  (28  Stat.,  i24),  which  pro- 
\'ided  that  when  necessary  the  Secretary  of 
the  Navy  sliould  select  final  graduates  in 
the  engineer  division  or  in  the  line  division, 
as  the  case  might  require,  "and  such  final 
graduates  sliall  be  appointed  to  fill  vacan- 
cies in  the  grade  of  ensign  in  the  Na^y  or  in 
the  grade  of  assistant  engineer  in  the  Na^'^', 
respectively;"  by  act  of  March  3,  1899  (30 
Stat.,  1004),  which  abolished  the  Engineer 
Corps  of  the  Nav^';  by  act  of  Julv  1,  1902 
(32  Stat.,  686),  which  changed  the  title 
"naval  cadet,"  to  "midshipman;"  by  act 
of  March  7,  1912  (37  Stat.,  73),  wliich  pro- 
vided that  "midshipmen  on  graduation 
shall  be  commissioned  ensigns;"  bv  act 
of  .July  9,  1913  (38  Stat.,  103\  which  pro- 
vided "tliat  midshipmen  on  graduation 
shall  be  commissioned  ensigns  in  the  Na^^y, 
or  may  l)e  assigned  by  the  Secretary  of  the 
Navy  to  fill  vacancies  in  the  lowest  com- 
missioned grades  of  the  Marine  Corps  or 
Staff  Corps  of  the  Navy;"  and  by  act  of 
May  22,  1917,  section  5  (40  Stat.,  86),  re- 
enacted  by  act  of  July  1,  1918  (40  Stat., 
716),  which  pro\dded  that  "the  class  of 
midshipmen  graduated  from  the  Naval 
Academy  on  March  twenty-ninth,  nine- 
teen hundred  and  seventeen,  and  the 
classes  to  be  graduated  hereafter,  may  be 
commissioned  effective  from  date  of 
graduation." 
The  act  of  August  5,  1882,  above  cited,  provided 
that  tlie  appointments  therein  provided  for 
were  to  be  made  "from  the  graduates  of  the 


year,  at  the  conclusion  of  their  six  years' 
course,  in  the  order  of  merit  as  determined 
by  the  Academic  Board  of  the  Naval  Acad- 
emy; the  assignment  to  the  various  corps 
to  be  made  by  the  Secretary  of  the  Navy 
upon  the  recommendation  of  the  Academic 
Board;"  the  act  of  March  2,  1889,  above 
cited,  provided  that  the  appointments 
therein  provided  for  were  to  be  made  "from 
the  final  graduates  of  the  year,  in  the  order 
of  merit  as  determined  by  the  Academic 
Board  of  the  Naval  Academy,  the  assign- 
ment to  be  made  by  the  Secretary  of  the 
NaAy  upon  the  recommendation  of  tlie 
Academic  Board  at  the  conclusion  of  the 
fiscal  year  then  current; "  the  act  of  July  26, 
1894,  above  cited,  provided  that  the  aj)- 
pointments  therein  authorized  were  to  be 
made  from  final  graduates  "who  shall  l)e 
reported  as  proficient  and  be  recommended 
thereto  by  the  Academic  Board,"  and  that 
such  appointees  should  take  rank  "among 
themselves  according  to  merit  as  deter- 
mined by  the  Academic  Board." 
The  act  of  March  3,  1899,  section  19  (30  Stat., 
1008),  relating  to  the  IMarine  Corps,  pro- 
vided "that  the  vacancies  existing  in  said 
corps  after  the  promotions  and  appoint- 
ments herein  provided  for  shall  be  filled 
by  the  President  from  time  to  time,  when- 
ever the  actual  needs  of  the  naval  service 
require  it,  first,  from  the  graduates  of  the 
Naval  Academy  in  the  manner  now  pro- 
vided by  law,"  etc.;  the  act  of  March  3, 
1903  (32  Stat.,  1198),  authorized  an  in- 
crease in  tlie  number  of  officers  in  the  Ma- 
rine Corps,  and  provided  that  "vacancies 
in  the  grade  of  second  lieutenant  shall  be 
filled,  first,  as  far  as  practicable,  from  grad- 
uates of  the  Naval  Academy  each  year  on 
completing  the  prescribed  course  at  the 
Naval  Academy,  exclusive  of  the  proba- 
tionary tour  of  sea  service  before  final 
graduation,"  etc. 
The  act  of  August  29,  1916  (39  Stat.,  611)  pro- 
^-ided  "that  no  midshipman  at  the  United 
States  Naval  Academy  or  cadet  at  the 
United  States  Military  Academy  who  fails 
to  graduate  therefrom  shall  be  eligible 
for  appointment  as  a  commissioned  officer 
in  the  Marine  Corps  until  after  the  gradu- 
ation of  the  class  of  which  he  was  a  mem- 
ber." 
With  reference  to  rank  and  precedence  of  grad- 
uates of  the  Naval  Academy,  see  section 
1483,  Revised  Statutes,  and  note  thereto; 
as  to  pay  of  midshipmen  commissioned 
within  six  months  after  graduation,  see  act 
of  March  3,  1893  (27  Stat.,  716),  which 
allows  the  pay  of  the  grade  in  which  com- 
missioned from  the  date  of  rank  stated  in 
the  commission  to  the  date  of  qualification 
and  acceptance  of  commission. 
Prior  laws  superseded. — The  act  of  August 
5,  1882  (22  Stat.,  285),  providing  for  appoint- 
ments from  the  graduates  of  the  Naval  Academy 
to  fill  A'acancies  in  the  lower  grades  of  the  line 
and  engineer  corps  of  the  NaA'y  and  of  the  Marine 
Corps,  was  superseded  by  the  act  of  March  2, 
1889  (25  Stat.,  878).  Next  came  the  act  of 
July  26,  1894  (28  Stat.,  124),  which  was  a  pro- 
vision intended  to  meet  exceptional  conditions 


766 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1621. 


which  can  not  now  arise  in  view  of  the  act  of 
March  3,  1899  (30  Stat.,  1004),  transferring  the 
engineer  corps  to  the  line;  it  may  therefore  be 
regarded  as  repealed  by  the  act  last  cited. 
(File  5252-36,  May  5,  1910.) 

Vacancies  must  remain  unfilled  where 
insufficient  graduates. — I  nder  the  act  of 
March  2,  1889  (ch.  396),  the  vacancies  in  the 
lowest  grades  of  commissioned  officers  in  the 
line  and  Marine  Corps  must  be  filled  from  the 
final  graduates  of  the  line  and  Marine  Corps 
di\dsions  at  Annapolis;  so  also  as  to  vacancies  in 
the  engineer  corps.  Vacancies  in  the  line  and 
Marine  Corps  can  not  be  filled  from  the  engineer 
corps  di\'ision  or  \ice  versa.  If  in  any  year 
there  are  more  vacancies  in  the  line  and  Marine 
Corps  than  there  are  final  graduates  of  the  six 
years'  course  in  the  line  and  marine  di^'ision, 
the  vacancies  must  remain  unfilled  until  the 
following  year;  and  the  same  rule  apjjlies  to 
vacancies  in  the  engineer  corps.  (20  Op.  Atty. 
Gen.,  615;  by  act  of  July  26,  1894,  above  noted, 
pro%'ision  was  made  for  filling  vacancies  in  the 
line  fi'om  the  engineer  diAision,  and  vacancies 
in  the  engineer  corps  from  the  line  division. 
See  also  later  laws  above  noted.) 

Law  does  not  require  that  graduates  be 
commissioned. — The  act  of  July  9,  1913  (38 
Stat.,  103),  pro\'iding  that  "midshipmen  on 
graduation  shall  be  commissioned  ensigns  in 
the  Navy,  or  may  be  assigned  by  the  Secretary 
of  the  Navy  to  fill  vacancies  in  the  lowest  com- 
missioned grades  of  the  Marine  Corps  or  staff 
corps  of  the  Navy,"  could  not  be  held  to 
require  the  appointment  of  any  midshipman 
upon  gi'aduation  as  an  ensign  in  the  Navy. 
No  act  of  Congress  can  compel  the  President  to 
appoint  a  midshijjman  to  the  office  of  ensign  in 
the  Navy  unless  he  chooses  to  make  such  an 
appointment.  (File  5252-120,  May  13,  1919; 
C.  M.  0.  186— 1919.) 

If  a  midshipman  were  entitled  to  be  commis- 
sioned ensign  and  the  President  should  refuse 
to  issue  his  commission,  no  action  would  lie  for 
the  salary  of  the  ofiice  which  he  does  not  pos- 
sess. His  becoming  an  ensign  depended  not 
upon  the  operation  of  law  but  upon  his  being 
nominated  by  the  President  and  confirmed  by 
the  Senate  for  that  office;  neither  of  which 
things  might  ever  be  done.  For  reasons  deemed 
sufficient,  the  President  might  not  nominate  or 
the  Senate  might  not  confirm  him  for  the 
position ;  or  after  nomination  and  confirmation 
the  President  might,  on  grounds  considered  ade- 
quate, decline  to  commission  him.  In  either 
case  he  would  not  be  an  ensign.  The  issue  of 
the  commission  is  that  which  confers  the  office 
and  the  right  to  its  pay.  However  clear  and 
strong  his  le^al  right  might  have  been  to  be 
commissioned  as  such  when  he  passed  the 
academic  examination,  the  fact  remains  that  he 
was  not  so  commissioned,  and  the  law  gave  him 
no  right  to  the  salary  until  he  got  the  commis- 
sion.    (Benjamin  v.  U.  S.,  10  Ct.  CIs.,  474.) 

The  term  of  office  of  a  naval  cadet  expires 
with  the  completion  of  his  six  years'  course. 
If  not  appointed  to  another  office  he  ceases  to 
be  an  officer  of  the  Navy  and  goes  out  of  office 
by  the  expiration  of  the  tenure  as  limited  by 
law.  Where  a  naval  cadet  was  erroneously  dis- 
charged upon  expiration  of  his  six  years,  due 
to  an  error  of  law,  he  can  not  be  regarded  as 


still  in  the  sendee  and  entitled  to  recover  pay, 
either  as  a  naval  cadet  or  as  the  incumbent  of 
a  commissioned  office  to  which  he  might  and 
should  have  been  appointed;  a  person  can  not 
recover  the  salary  of  an  office  which  he  does  not 
hold.  The  case  of  a  naval  cadet  is  to  be  dis- 
tinguished from  that  of  a  cadet  engineer,  as  the 
latter  could  under  the  law,  after  graduation, 
continue^  in  the  service  in  the  status  of  a  cadet 
engineer  and,  where  erroneously  discharged, 
could  recover  the  pay  of  a  cadet  engineer  as 
though  such  discharge  had  not  been  issued. 
(Grambs  v.  U.  S.,  23  Ct.  CIs.,  420.) 

Graduates  can  not  be  commissioned  un- 
less vacancies  exist. — Under  the  act  of 
August  5,  1882  (22  Stat.,  285),  a  naval  cadet 
who  completed  his  six  years'  course  subse- 
quent to  that  year  was  legally  discharged, 
there  being  no  vancancy  to  which  he  could  be 
appointed,  notwithstanding  the  obligation  as- 
sumed by  him  upon  entering  the  Academy  to 
"serve  in  the  Navy  of  the  United  States  for 
eight  years,  unless  sooner  discharged  by  com- 
petent authority."  The  discharge  in  this  case 
was  in  strict  pursuance  of  law,  by  an  executive 
officer  of  the  Government,  authorized  by  stat- 
ute to  perform  that  function.  Obligations  are 
not  always  mutual  in  the  liability  of  the  par- 
ties to  perform.  They  are  often  unilateral, 
giving  a  right  to  one  to  declare  the  obligation 
at  an  end,  while  the  other  party  is  bound  to  a 
full  performance.  The  number  of  men  in  the 
Army  and  Navy  is  dependent  upon  the  will  of 
Congress.  A  naval  cadet  has  no  vested  right 
to  the  office,  and  Congress  may  prescribe  new 
terms  and  conditions  upon  which  he  may  re- 
main in  the  service  after  graduation.  (Har- 
mon V.  U.  S.,  23_Ct.  CIs.,  132.) 

The  provision  in  the  naval  appropriation  act 
of  August  5,  1882,  section  1  (22  Stat.,  284, 
285),  which  directs  in  certain  cases  the  honor- 
able discharge  of  naval  cadets  from  the  Navy 
with  one  year's  sea  pay,  is  not  in  conflict  with 
the  contract  clause  of  the  Constitution  of  the 
United  States.  An  officer  in  the  Army  or 
Navy  does  not  hold  his  office  by  contract  but  at 
the  will  of  the  sovereign  power.  Even  if  it 
were  true  as  to  other  officers  of  the  Navy  that 
their  term  of  office  is  for  life,  this  would  not  be 
true  as  to  a  naval  cadet  appointed  under  a 
statute  fixing  the  academic  course  at  six  years 
and  who  when  he  entered  the  service  executed 
a  bond  to  serve  for  eight  years  unless  discharged 
by  competent  authority,  thus  recognizing  his 
liability  to  be  discharged.  (Crenshaw  v. 
U.  S.,  134  U.  S.,  99.) 

The  act  of  August  5,  1882  (22  Stat.,  285), 
providing  for  the  discharge  of  surplus  graduates 
of  the  Naval  Academy,  is  constitutional. 
(Harmon  v.  U.  S.,  23  Ct.  CIs.,  406.) 

Midshipmen  graduated  from  the  Naval 
Academy  and  assigned  to  the  Marine  Corps 
can  not  be  appointed  as  second  lieutenants  in 
the  Marine  Corps  if  the  grade  of  second  lieu- 
tenant is  filled  to  the  number  fixed  by  law, 
notwithstanding  that  the  total  number  of 
officers  allowed  by  law  in  the  Marine  Corps 
would  not  be  exceeded  by  their  appointment 
owing  to  certain  vacancies  existing  in  upper 
grades.  There  being  five  vacancies  in  the 
Marine  Corps  on  the  date  of  graduation  which 
would  result  in  the  promotion  of  five  second 


767 


Sec.  1522. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


lieutenants  from  the  date  said  vacancies 
occurred,  and  six  midshipmen  having  been 
assigneci  to  th(>  Marine  ("ori)s,  held  that  five  of 
said  midshipmen  may  be  ap{)ointed  to  the 
grade  of  second  lieutenant  upon  the  occurrence 
of  the  five  vacancies  in  said  grade,  and  if  com- 
niis.><ioned  therein  within  six  months  from  the 
date  of  their  graduation  may  be  given  rank 
from  said  date  of  graduation  pursuant  to  the 
act  of  March  3,  1893  (27  Stat.,  716).  The  ap- 
pointment of  the  sixth  midshipman  as  a  second 
lieutenant  should  not  be  made  until  a  vacancy 
exists  for  him  in  the  grade  of  second  lieutenant, 
and  there  does  not  api)ear  to  be  any  authority 
of  law  for  dating  his  rank  ])rior  to  the  date  that 
a  sixth  vacancy  occurs  in  the  Marine  Corps. 
(File  3261-486,  June  8,  1916.) 

Status  of  graduates  pending  occurrence 
of  vacancies. — Th(>  act  of  March  1,  1917  (39 
Stat.,  1182),  authorizes  the  graduation  of  mid- 
shipmen, during  a  limited  ])eriod,  who  have 
completed  a  three-year  course  at  the  Naval 
Academv;  the  number  of  officers  in  the  grades 


of  lieutenant  (junior  grade)  and  ensign  is 
limited  by  act  ai)proved  August  29,  1916  (39 
Stat.,  576,  577);  asufhcient  number  of  vacancies 
will  not  exist  in  the  line  of  the  Navy  to  permit 
of  commissioning  all  graduates  of  the  Naval 
Academy  prior  to  July  1,  1917:  Held,  that  in 
the  meantime  such  graduates  may  be  ai)pointed 
as  acting  ensigns;  or  may  be  commissioned  as 
ensigns  in  the  Naval  Reserve  Force;  or  may  be 
ordered  to  duty  as  "midshipmen  after  gradua- 
tion."    (File  5252-83,  Mar.  20,  1917.) 

See  acts  of  May  22,  1917,  section  5,  and  July 
1,  1918,  noted  above. 

Appointment  made  subject  to  examina- 
tion.— A  midshipman  who,  while  absent  in  a 
distant  and  foreign  station,  was  nominated  and 
confirmed  to  be  ensign  "subject  to  examination" 
but  who  was  never  examined,  never  became 
an  ensign  and  having  in  the  meantime  been 
brought  to  trial  by  court-martial  was  properly 
tried  as  a  midshipman.  (16  Op.  Atty.  Gen., 
550.) 


Sec.  1522.  [Cadet  engineers.     Repealed.] 


This  section  provided  as  follows: 
"Sec.  1522.  The  Secretary  of  the  Navy  is 
authorized  to  make  provision,  by  regulations 
issued  l)y  him,  for  educating  at  the  Naval 
Academy,  as  naval  constructors  or  steam 
engineers,  such  midshipmen  and  others  as  may 
show  a  peculiar  aptitude  therefor.  He  may, 
for  this  purpose,  form  a  separate  class  at  the 
Academy,  to  be  styled  cadet  engineers,  or 
other\\a8e  afford  to  "such  persons  all  proper 
facilities  for  such  a  scientific  mechanical  edu- 
cation as  will  fit  them  for  said  professions." — 
(4  July,  1864,  c  252,  s.  1,  v.  13,  p.  393.) 

It  was  repealed  by  the  act  of  August  5, 1882 
(22  Stat.,  285),  which  provided  " that  hereafter 
there  shall  be  no  appointments  of  cadet-mid- 
shipmen or  cadet-engineers  at  the  Naval 
Academy,  but  in  lieu  thereof  naval  cadets  shall 
be  appointed  from  each  congressional  district 
and  at  large,  as  now  provided  by  law  for  cadet- 
midshipmen,  and  all  the  undergraduates  at  the 
Naval  Academy  shall  hereafter  be  designated 
and  called  'naA-al  cadets;'  and  from  those  who 
successfully  complete  the  six  years'  course 
appointments  shall  hereafter  l)e  made  as  it  is 
necessary  to  fill  vacancies  in  the  lower  grades 
of  the  line  and  Engineer  Corps  of  the  Navy 
and  of  the  Marine  Corps:  And  -provided  further, 
That  no  greater  number  of  appointments  into 
these  grades  shall  be  made  each  year  than  shall 
ecjual  the  number  of  vacancies  which  has 
occurred  in  the  same  grades  during  the  pre- 
ceding year;  such  appointments  to  be  made 
from  the  graduates  of  the  year,  at  the  conclu- 
sion of  their  six  years'  course,  in  the  order  of 
merit,  as  determined  by  the  academic  board 
of  the  Naval  Academy;  the  assignment  to  the 
various  corps  to  be  made  by  the  Secretary  of 
the  Navy  upon  the  recommendation  of  the 
academic  board.  Butnothing herein  contained 
shall  reduce  the  number  of  appointments  from 
such  graduates  below  ten  in  each  year,  nor 
deprive  of  such  appointment  any  graduate 
who  may  complete  the  six  years'  course  during 
the  year  eighteen  hundred  and  eighty-two. 
And  if  there  be  a  surplus  of  graduates,  those 


who  do  not  receive  such  appointment  shall 
be  given  a  certificate  of  graduation,  an  honor- 
able discharge,  and  one  year's  sea-pay,  as  now 
proAided  by  law  for  cadet-midshipmen;  and 
so  much  of  section  fifteen  hundred  and  twenty- 
one  of  the  Re\dsed  Statutes  as  is  inconsistent 
herewith  is  hereby  repealed.  *  *  *  That 
the  Secretary  of  the  Navy  may  prescribe  a 
special  course  of  study  and  training  at  home  or 
abroad  for  any  naval  cadet." 

Later  laws  relating  to  this  subject  are 
as  follows: 

Act  of  March  2,  1889  (25  Stat.,  878):.  "That 
the  Academic  Board  of  the  Naval  Academy 
shall  on  or  before  the  thirtieth  day  of  September 
in  each  year  separate  the  first  class  of  naval 
cadets  then  commencing  their  fourth  year  into 
two  diAdsions,  as  they  may  have  shown  special 
aptitude  for  the  duties  of  the  respective  corps, 
in  the  proportion  which  the  aggregate  number  of 
vacancies  occurring  in  the  preceding  fiscal  year 
ending  on  the  thirtieth  day  of  June  in  the  low- 
est grades  of  commissioned  officers  of  the  line 
of  the  Navy  and  Marine  Corps  of  the  Navy  shall 
bear  to  the  number  of  vacancies  to  be  supplied 
from  the  Academy  occurring  during  the  same 
period  in  the  lowest  grade  of  commissioned 
officers  of  the  engineer  corps  of  the  Navy;  and 
the  cadets  so  assigned  to  the  line  and  Marine 
Corps  di\'ision  of  the  first  class  shall  thereafter 
pursue  a  course  of  study  arranged  to  fit  them 
tor  8er\T.ce  in  the  line  of  the  Na^y,  and  the 
cadets  so  assigned  to  the  Engineer  Corps  di\ision 
of  the  first  class  shall  thereafter  pursue  a  sepa- 
rate course  course  of  study  arranged  to  fit  them 
for  ser\ice  in  the  Engineer  Corps  of  the  Navy, 
and  the  cadets  shall  thereafter,  and  until  final 
graduation,  at  the  end  of  their  six  years'  course, 
take  rank  by  merit  with  those  in  the  same  divis- 
ion, according  to  the  merit  marks;  and  from  the 
final  graduates  of  the  line  and  Marine  Corps  di- 
\ision,  at  the  end  of  their  six  years'  course,  ap- 
pointments shall  be  made  hereafter  as  it  shall 
be  necessary  to  fill  vacancies  in  the  lowest 
grades  of  commissioned  officers  of  the  line  of  the 
NaA-y  and  Marine  Corps;  and  the  vacancies  in 


768 


The  Navy. 


PL  2.  REVISED  STATUTES 


Sec.  1524. 


the  lowest  grades  of  the  commissioned  officers 
of  the  Engineer  Corps  of  the  Navy  shall  be 
filled  in  like  manner  by  appointments  from  the 
final  graduates  of  the  Engineer  division  at  the 
end  of  their  six  years'  course:  Provided,  That 
no  greater  number  of  appointments  into  the 
said  lowest  grades  of  commissioned  officers  shall 
be  made  each  year  than  shall  equal  the  number 
of  vacancies  which  shall  have  occurred  in  the 
same  grades  during  the  fiscal  year  then  current; 
such  appointments  to  be  made  from  the  final 
graduates  of  the  year,  in  the  order  of  merit  as 
determined  by  the  Academic  Board  of  the  Naval 
Academy,  the  assignment  to  be  made  by  the 
Secretary  of  the  Navy  upon  the  recommenda- 
tion of  the  Academic  Board  at  the  conclusion 
of  the  fiscal  year  then  current;  but  notliing 
contained  herein  or  in  the  naval  appropriation 
act  of  August  fifth,  eighteen  hundred  and  eighty- 
two,  shall  reduce  the  number  of  appointments 
of  final  graduates  at  the  end  of  their  six  years 
course  below  twelve  in  each  year  to  the  line 
of  the  Nax-y,  and  not  less  than  two  shall  be 
appointed  annually  to  the  Engineer  Corps  of 
the  Navy,  nor  less  than  one  annually  to  the 
Marine  Corps;  and  if  the  number  of  vacancies 
in  the  lowest  grades  aforesaid,  occurring  in  any 
year  shall  be  greater  than  the  number  of  final 
graduates  of  that  year,  the  surplus  vacancies 
shall  be  filled  from  the  final  graduates  of 
following  years,  as  they  shall  become  avail- 
able   *    *    *." 

Act  of  July  26,  1894  (28  Stat.,  124):  Provided 
for  appointments  to  the  line  of  the  Navy  from 
the  engineer  di\'ision,  and  to  the  Engineer 
Corps  of  the  Na\'y  from  the  line  di\ision,  when 
necessary. 

Act  of  March  3, 1899  (30  Stat.,  1004) :  Abolish- 
ed the  Engineer  Corps  of  the  Navy  and  pro- 


.^ided  for  transfer  of  engineer  officers  to   the 
line. 

Act  of  August  29,  1916  (39  Stat.,  580):  Pro- 
vided for  appointment  to  the  line  of  the  Navy, 
as  "acting  ensigns  for  the  performance  of  en- 
gineering duties  only,"  of  persons  who  "have 
received  a  degree  of  mechanical  or  electrical 
engineer  from  a  college  or  university  of  high 
standing,"  or  who  are  "graduates  of  technical 
schools  approved  by  the  Secretary  of  the 
Navy    *    *    *." 

Act  of  March  3,  1915  (38  Stat.,  945):  Pro\'ided 
that  appointments  to  the  grade  of  assistant 
naval  constructor  may  be  made  by  transfer 
from  officers  of  the  line  of  the  Navy  who  have 
had  not  less  than  three  years'  ser\dce  in  the 
grade  of  ensign  and  have  taken,  or  are  taking, 
satisfactorily,  a  post-graduate  course  in  naval 
architecture  uncler  orders  from  the  Secretary 
of  the  Navy.  By  act  of  August  29,  1916  (39 
Stat.,  577),  it  was  proxaded  that  "vacancies  in 
the  Construction  Corps  shall  be  filled  in  the 
manner  now  prescribed  by  law,"  and  that 
"hereafter  ensigns  of  not  less  than  one  year's 
ser\'ice  as  such  shall  be  eligible  for  transfer  to 
the  Construction  Corps."  It  had  pre\dously 
been  pro\aded  by  section  1403,  Reidsed  Stat- 
utes, that  "cadet  engineers  who  are  graduated 
with  credit  in  the  scientific  and  mechanical 
class  of  the  Naval  Academy  may,  upon  the  re- 
commendation of  the  academic  board,  be  im- 
mediately appointed  as  assistant  naval  con- 
structors;" and  by  act  of  July  9,  1913  (38  Stat., 
103),  that  "midshipmen  on  gi-aduation  *  *  * 
may  be  assigned  by  the  Secretary  of  the  Navy 
to  fill  vacancies  in  the  lowest  commissioned 
grades  of  the  *  *  *  staff  corps  of  the 
Navy." 


Sec.  1523.  [Number  and  appointment  of.     Repealed.] 


This  section  provided  as  follows: 

"Sec.  1523.  Cadet  engineers  shall  be  ap- 
pointed by  the  Secretary  of  the  Navy.  They 
shall  not  at  any  time  exceed  fifty  in  niunber, 
and  no  persons,  other  than  midshipmen,  shall 
be  eligible  for  appointment  unless  they  shall 
fii'st  produce  satisfactory  evidence  of  mechani- 
cal skill  and  proficiency,  and  shall  have  passed 
an  examination  as  to  their  mental  and  phvsical 
qualifications."— (4  July,  1864,  c.  252,  ss.  3,  4,  v. 
13,  p.  393.  2  Mar.,  1867,  c.  174,  s.  2,  v.  14,  p.  516. 
22  June,  1874,  c.  392,  s.  3,  v.  18,  p.  192.) 

It  was  amended  by  act  of  June  22,  1874, 
section  3  (18  Stat.,  192),  which  provided  that 
"so  much  of  the  act  entitled  'An  act  to  author- 
ize the  Secretary  of  the  Navy  to  pro^dde  for 
the  education  of  naval  constructors  and  steam- 
engineers,  and  for  other  purposes,'  approved 


July  4,  1864,  as  provides  that  cadet-engineers, 
not  to  exceed  fifty  in  number,  shall  be  ap- 
pointed by  the  Secretary  of  the  Navy,  is  hereby 
repealed;  and  cadet-engineers  shall  hereafter 
be  appointed  annually  by  the  Secretary  of  the 
Navy,  and  the  number  appointed  each  year 
shall  not  exceed  twenty-five;  and  that  aU  acta 
or  parts  of  acts  inconsistent  with  the  provi- 
sions of  this  act  be,  and  the  same  are  hereby 
repealed."  (See  United  States  v.  Redgrave, 
116  U.  S.,  474,  478.) 

It  was  repealed  by  act  of  August  5,  1882 
(22  Stat.,  285),  quoted  under  section  1522, 
Revised  Statutes,  which  expressly  prohibited 
any  further  appointments  of  cadet-engineers. 
See  also  later  laws  noted  under  section  1522, 
Revised  Statutes. 


Sec.  1524.  [Academic  course  of.     Repealed.] 


This  section  provided  as  follows: 

"Sec.  1524.  The  course  for  cadet  engineers 
shall  be  four  years,  including  two  years  of 
8er^dce  on  naval  steamers. ' ' — (4  July,  1864,  c. 
252,  s.  5,  V.  13,  p.  393.  3  Mar.,  1873,  c.  230,  s. 
1,  V.  17,  p.  555.  24  Feb.,  1874,  c.  35,  v.  18,  p. 
17.) 

It  was  amended  to  read  as  above  by  act  of 
February  24, 1874,  section  2  (IS  Stat.,  17),  which 


pro^ided  that ' '  from  and  after  the  thirtieth  day 
of  June,  eighteen  hundred  and  seventy-four,  the 
course  of  instruction  at  the  Na^al  Academy  for 
cadet-engineers  shall  be  four  years,  instead  of 
two  as  now  pro\ided  by  law;  and  this  provision 
shall  first  apply  to  the  class  of  cadet-engineers 
entering  the  academv  in  the  year  eighteen  hun- 
dred and  seventy-four,  and  to  all  subsequent 
classes;  and  that  all  acts  or  parts  of  acts  incon- 


769 


Sec.  1527. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


sistent  herewith  be,  and  are  hereby,  repealed."- 
This  amendment  had  the  effect  of  requiring 
four  years  of  instruction  at  the  Naval  Academy 
in  addition  to  the  two  years'  service  on  naval 
Bteamera.  (See  United  States  v.  Redgrave, 
116  U.  S.,  474,  478.) 


It  was  repealed  by  act  of  August  5,  1882 
(22  Stat.,  285),  quoted  under  section  1522, 
Revised  Statutes,  which  expressly  prohibited 
any  further  ap]>ointments  of  cadet-engineers. 
See  also  later  laws  noted  under  sections  1522 
and  1520,  Revised  Statutes. 


Sec.  1525.  [Examinations  of.     Repealed.] 


This  section  provided  as  follows: 
"Sec.  1525.  (,'adet  engineers  shall  be  ex- 
amined from  time  to  time,  according  to  reg- 
ulations prescribed  by  the  Secretary  of  the 
Navy,  and  if  found  deficient  at  any  examina- 
tion, or  if  dismissed  for  misconduct,  they  shall 
not  be  continued  in  the  Academy  or  in  the 
8er\dce  except  upon  the  recommendation  of 


the  academic  board."— (4  July,  1864,  c.  252, 
s.  4,  V.  13,  p.  393.) 

It  was  repealed  by  act  of  August  5,  1882 
(22  Stat.,  285),  quoted  under  section  1522, 
Revised  Statutes,  which  expressly  prohibited 
any  further  appointments  of  cadet-engineers. 
See  also  later  laws  noted  under  section  1522, 
Revised  Statutes. 


Sec.  1526.  [Studies  not  to  be  pursued  on  Sunday.]  The  Secretarv  of  the 
Navy  sliall  arrange  the  course  of  studies  and  the  order  of  recitations  at  the 
Naval  Academy  so  that  the  students  in  said  institution  sliall  not  be  required 
to  pursue  their  studies  on  Sunday. — (15  July,  1870,  c.  294,  s.  21,  v.  16,  p.  319.) 

Sec.  1527.  [Store-keeper  at  the  Academy.]  The  store-lceeper  at  the  Naval 
Academy  shall  be  detailed  from  the  Paymaster's  Corps,  and  shall  have  au- 
thority, with  the  approval  of  the  Secretary  of  the  Navy,  to  procure  clothing 
and  other  necessaries  for  the  midshipmen  and  cadet  engineers  in  the  same 
manner  as  supplies  are  furnished  to  the  Navy,  to  be  issued  under  such  regula- 
tions as  may  be  prescribed  by  tlie  Secretary  of  the  Navy. —  (2  IVfar.,  1867, 
c.  174,  s.  4,  V.  14,  p.  516.) 

Amendments  to  this  section  were  made  by  the 
act  of  July  11,  1919  (41  Stat.,  147),  which 
p^o^'ided  that  "hereafter  the  Pay  Corps 
shall  be  called  the  Supply  Corps;"  by  act 
of  August  5,  1882  (22  Stat.,  285),  quoted 
under  section  1522,  ReAT.sed  Statutes, 
which  expressly  prohibited  any  further 
appointments  of  cadet-engineers;  and  by 
act  of  May  13,  1908  (35  Stat.,  153),  which 
proA-ided  that ' '  the  Secretary  of  the  Treas- 
ury is  hereby  authorized  and  directed  to 
close  and  balance  as  expended  the  sum  of 
twenty-four  thousand  five  hundred  dollars 
now  standing  on  the  books  of  the  Treasury 
\inder  the  appropriation  'Pay  of  the  Navy,' 
which  was  ad^'anced  by  direction  of  the 
Secretary  of  the  Navy  in  eighteen  hundred 
and  sixty-seven  and  eighteen  hundred  and 
sixty-eight,  and  has  heretofore  been  used 
as  a  midshipmen's  store  fund  at  the  Naval 
Academy:  Provided.  That  hereafter  the 
storekeeper  at  the  Naval  Academy,  auth- 
orized by  section  fifteen  hundred  and 
twenty-seven  of  the  Re\-i8ed  Statutes, 
shall  render  quarterly  returns  of  property 
to  the  Chief  of  the  Bureau  of  Supplies  and 
Accounts,  under  such  regulations  as  the 
Secretary  of  the  Navy  may  prescribe.  A 
full  report  shall  be  made  annually  of  re- 
ceipts and  expenditures  by  the  Chief  of  the 
Bureau  of  Supplies  and  Accounts  to  the 
Secretarj^  of  the  Navy:  And  provided  fur- 
ther, That  an  inspection  of  the  store- 
keeper's accounts  shall  be  made  quarterly 
by  the  general  inspector  of  the  Pay  Corps 
[now  Supply  Corps],  with  such  recommen- 
dation Jis  he  may  deem  necessarj-,  to  the 


Chief  of  the  Bureau  of  Supplies  and  Ac- 
counts." 

Midshipmen's  store  fvind. — Prior  to  1867 
a  ci^ilian  storekeeper  pro\'ided  for  the  needs  of 
the  midshipmen  under  an  arrangement  made 
between  himself  and  the  officials  of  the  Acad- 
emy. This  arrangement  was  not  satisfactory', 
and.  in  1867  and  1868,  by  direction  of  the  Sec- 
retary of  the  Navy,  the  sum  of  §24,500  was  ad- 
vanced for  the  purpose  of  taking  over  the  said 
store  and  of  carr^nng  it  on.  This  was  done 
from  the  appropriation,  "Pay  of  the  Navy." 
Held,  that  the  sum  of  $24,500  aforesaid  is  public 
money  and  that  said  sum  and  the  accumulated 
profits,  if  any,  should  be  covered  into  the 
Treasury;  that  the  establishment  of  said  fund 
and  the  present  manner  of  conducting  the  store 
at  the  Naval  Academy  are  without  authority  of 
law,  it  being  pro^ided  by  the  act  of  June  19, 
1878  (20  Stat.,  167),  section  2,  that  "  'Pay  of  the 
Navy '  shall  hereafter  be  used  only  for  its  legiti- 
mate purpose,  as  pro^'ided  by  law,"  and  by  act 
of  July  26,  1886,  section  2  (24  Stat.,  157),  that 
"all  l^alances  of  money  appropriated  for  pay  of 
the  Navy  or  pay  of  the  ]\Iarine  Corps  for  any 
year  existing  after  the  accounts  for  said  year 
shall  have  been  settled  shall  be  carried  into  the 
Treasury."  Held,  further,  that  by  section  1527 
of  the  ReAised  Statutes  it  was  clearly  the  in- 
tention of  Congress  that  the  supplies  for  the 
Naval  Academj^  store  should  be  procured  in  the 
same  manner  as  other  naval  stores.  (14  Comp. 
Dec,  680.  But  see  act  of  May  13,  1908,  quoted 
above.) 

Naval  Academy  dairy. — Pro\'isions  for 
purchase  of  land  and  establishment  of  dairy 
thereon  were  contained  in  act  of  !March  4,  1913 


no 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1528. 


(37  Stat.,  904),  which  pro\'ided  that  appropria- 
tion therein  made  for  the  purpose  should  be 
treated  as  an  adA'ance  to  tlie  midshipmen's 
store  fund,  to  be  ultimately  repaid  to  the  United 
States,  and  that  expenditures  therefrom  should 
be  reported  by  the  Chief  of  the  Bureau  of  Sup- 
plies and  Accounts  to  the  Secretary  of  the  Navy. 


Midshipmen's  commissary  fund. — Such 
additional  payments  from  this  fund  as  the 
Superintendent  may  deem  necessary  may  be 
made  to  servants  authorized  in  the  commissary 
department.  (Act  Mar.  4,  1913,  37  Stat.,  907. 
See  also  note  to  sec.  2.36,  R.  S.,  under  "II. 
Jurisdiction  of  Accounting  Officers,"  subhead- 
ing "Public  Money.") 

Sec.  1.528.  [Professors  of  ethics,  Spanish,  and  drawing-.]  Three  professors 
of  mathematics  shall  be  assigned  to  duty  at  the  Naval  Academy,  one  as  professor 
of  ethics  and  English  studies,  one  as  professor  of  the  Spanish  language,  and 
one  as  professor  of  drawing. —  (21  May,  1864,  c.  93,  s.  3,  v.  13,  p.  85.) 


By  act  of  August  29,  1916  (39  Stat.,  577),  it 
was  provided  that  "hereafter  no  further 
appointments  shall  be  made  to  the  corps  of 
professors  of  mathematics,  and  that  corps 
shall  cease  to  exist  upon  the  death,  resig- 
nation, or  dismissal  of  the  officers  now 
carried  in  that  corps  on  the  active  and 
retired  lists  of  the  Navy."  (See  sees. 
1399-1401,  and  notes  thereto,  with  refer- 
ence to  the  number  of  professors  of  mathe- 
matics, their  appointment,  duties,  etc.) 

By  act  of  August  29,  1916  (39  Stat.,  607),  it 
was  provided  that  "the  Secretary  of  the 
Navy  is  authorized  to  employ  at  the  Naval 
Academy  such  number  of  professors  and 
instructors,  including  one  professor  as 
librarian,  as,  in  his  opinion,  may  be 
necessary  for  the  proper  instruction  of  the 
midshipmen;  and  that  professors  and  in- 
.  structors  so  employed  shall  receive  such 
compensation  for  their  services  as  may 
be  prescribed  by  the  Secretary  of  the  Navy : 
Provided  further,  That  the  total  amount  so 
paid  shall  not  exceed  $175,000  annually: 
And  provided  further,  That  the  Secretary 
of  the  Navy  shall  report  to  Congi-ess  each 
year  the  niunber  of  professors  and  instruc- 
tors so  employed  and  the  amount  of  com- 
pensation prescribed  for  each."  (It  had 
previously  been    provided    by    act    Mar. 

2,  1895,  28  Stat.,  837,  that  "any  assistant 
professor  at  the  Naval  Academy  who  served 
as  such  for  five  years  shall  have  the  title 
and  pay  of  a  professor,"  and  by  act  Mar. 

3,  1897,  29  Stat.,  661,  that  "the  proper 
pay  officer  of  the  Navy  be,  and  is  hereby, 
authorized  to  pay  the  professors  at  the 
Naval  Academy,  whose  compensation  was 
affected  by  the  Act  making  appropriations 
for  the  naval  service  for  the  fiscal  year 
ending  June  thirtieth,  eighteen  hundred 
and  ninety-six,  approved  March  second, 
eighteen  hundred  and  ninety-five,  at  the 


rate  of  compensation  fixed  by  that  Act 
from    July    first,    eighteen    hundred    and 
ninety-six.") 
By  act  of  ]\Iay  18,  1920,  section  7  (41  Stat.,  603), 
the  Secretary  of  the  Navy  was  authorized 
in  his  discretion  to  readjust  the  prevailing 
rates  of  pay  of  civilian  professors  and  in- 
structors at  the  Naval  Academy,  said  read- 
justment to  be  effective  from  January  1, 
1920,   and   not  to  involve  an  additional 
expenditure  in  excess  of  $55,000  for  the 
remainder  of  the  current  fiscal  year. 
Commissioned  as  professors  of  mathe- 
matics.— Although  the  title  conferred  by  law 
is   a  misnomer,    held  that  the  heads  of   the 
departments  of  ethics  and  English  studies,  of 
Spanish  and  other  modern  languages,  and  of 
drawing,  should  be  commissioned  as  professors 
of  mathematics  under  section  1528,   Revised 
Statutes,   after  passing  the  examinations  re- 
quired by  the  act  of  January  20,  1881  (21  Stat., 
317).    The  pm-pose  that  persons  known  to  the 
law  and  the  Navy  Register  as  "professors  of 
mathematics"  should  be  engaged  in  teaching 
other  branches  of  learning  is  too  obvious  for 
construction.     That  the  name  did  not  indicate 
the  sole  duties  of  the  office  is  further  apparent 
from   the   express   declaration   of  the   act  of 
August  3,  1846,  section  12  (now  sees.  1399-1401, 
R.  S.),  "that  the  number  of  professors  of  mathe- 
matics in  the  Navy  shall  not  exceed  twelve; 
that  they  shall  be  appointed  and  commissioned 
by  the  President  of  the  United  States,  by  and 
with  the  advice  and  consent  of  the  Senate, 
and  shall  perform  such  duties  as  may  be  assigned 
them  by  order  of  the  Secretary  of  the  Navy  at 
the  Naval  School,   the  Observatory,   and    on 
board  ships  of  war  in  instructing  the  midship- 
men of  the  Navy,  or  otherwise.^''     Section  1528 
shows  that,  certainly  as  to  three  of  these  pro- 
fessors, the  duties  to  be  assigned  were  not  to 
be   mathematical   in    their   nature.     (17    Op. 
Atty.  Gen.,  103.) 


in 


CHAPTER  SIX. 


VESSELS  AND  NAVY  YARDS. 


Sec. 

1529.  Classification  and  command  of  vessels. 

1530.  Rating  of  vessels. 

1531.  Rule  for  naming  vessels. 

1532.  Two  vessels  not  to  bear  the  same  name. 

1533.  Names  of  purchased  vessels. 

1534.  Vessels  kept  in  semce  in  time  of  peace. 

1535.  Vessels,  how  officered  and  manned. 

1536.  Vessels  to  assist  distressed  navigators. 

1537.  Patented  articles  connected  with  marine 

engines. 

1538.  Repairs  on  hull  and  spars. 

Sec.  1529.  [Classification  and  command  of  vessels.     Superseded.] 


Sec. 

1539.  Repairs  on  sails  and  rigging. 

1540.  Sale  of  vessels  unfit  to  be  repaired. 

1541.  Sale  of  unserviceable  vessels  and  mate- 
rials. 

1542.  Commandants  of  navy  yards. 

1543.  Master  workmen. 

1544.  Laborers,  how  selected. 

1545.  Salaries;  per  diem  compensation. 

1546.  Requiring     contributions     for     political 
purposes. 


This  section  provided  as  follows: 

"Sec.  1529.  The  vessels  of  the  Navy  of  the 
United  States  shall  be  di^dded  into  four  classes, 
and  shall  be  commanded  as  nearly  as  may  be 
as  follows: 

' '  First  rates,  by  commodores;  second  rates,  by 
captains;  third  rates,  by  commanders;  fourth 
rates,  by  lieutenant-commanders." — (16  July, 
1862,  c.  183,  8.  3,  V.  12,  p.  583.) 

It  was  superseded  by  act  of  March  3,  1901 
(31  Stat.,  1133),  which  provided  as  follows: 

"That  the  President  of  the  United  States  be, 
and  he  is  hereby,  authorized  to  establish,  and 
from  time  to  time  to  modify,  as  the  needs  of  the 
service  may  require,  a  classification  of  vessels 
of  the  Navy,  and  to  formulate  appropriate  rules 
governing  assignments  to  command  of  vessels 
and  squadrons." 

A  classification  of  vessels  of  the  Navy  was 
estaljlished  by  General  Order  No.  541  of  July 
17,  1920. 

"Vessels"  defined. — See  section  3,  Revised 
Statutes. 

Lost  vessels. — How  date  of  loss  to  be  deter- 
mined :  See  section  286,  Revised  Statutes. 

Authority  of  officers  over  crew  after  loss  of 
vessel:  See  section  1624,  Revised  Statutes, 
article  21. 

Accounts  of  seamen  on  lost  vessels,  com- 
pensation for  personal  effects  lost,  etc.  See 
sections  287-290,  Re\i8ed  Statutes. 

Collisions. — Claims  for  damages  occasioned 
by  collisions  for  which  vessels  of  the  Navy  are 
responsible,  to  be  adjusted  by  the  Secretary  of 
the  Na\y,  where  amount  does  not  exceed  $500. 
(Act  June  24,  1910,  36  Stat.,  607.) 

Ocean  mail  vessels. — To  be  constructed 
with  particular  reference  to  their  prompt  con- 
version into  auxiliary  cruisers.  (Act  Mar.  3, 
1891,  sec.  4,  26  Stat.,  881.) 

Suits  by  or  against  commanding  officers 
of  naval  vessels. — See  note  to  section  189, 
Revised  Statutes,  and  note  to  Constitution, 
Article  I,  section  8,  clause  13. 


Officers  of  vessels. — To  be  citizens  of  the 
United  States.     (Sec.  1428,  _R.  S.) 

Retired  officers  may  be  assigned  to  command 
vessels  and  squadrons  in  time  of  war.  (Sees. 
1463-1465,  R.  S.) 

Officers  and  men  not  to  be  shipped  for  serv- 
ice on  United  States  auxiliary  vessels  unless 
members  of  the  Naval  Reserve  Force.  (Act 
Aug.  29,  1916,  39  Stat.,  589.) 

Employment  of  naval  vessels. — Secretary 
of  the  Na^  y  to  execute  the  orders  of  the  Presi- 
dent relating  to  employment  of  vessels  of  war. 
(Sec.  417,  R.  S.) 

Vessels  of  the  United  States  and  their  com- 
manders may  be  directed  by  the  President 
to  examine  vessels  registered  under  the  laws 
of  the  United  States  which  are  believed  to  be 
engaged  in  the  coolie  trade,  and  in  proper 
cases  to  cause  any  vessel  so  examined  to  be 
delivered  with  her  officers  and  crew  to  a  United 
States  marshal.     (Sec.  2163,  R.  S.) 

Officers  of  the  Navy  may  be  detailed  to 
make  arrests  and  seize  vessels  and  sponges  in 
enforcement  of  law  regulating  sponge  trade  in 
Gulf  of  Mexico  or  Straits  of  Florida.  (Act 
Aug.  15,  1914,  sec.  5,  38  Stat.,  692.) 

Vessels  of  the  Navy  may  be  used  to  protect 
merchant  vessels  against  piratical  vessels. 
(Sec.  4294,  R.  S.) 

May  be  used  to  patrol  waters  frequented  by 
seal  herds  and  sea  otter,  and  search  and  seize 
vessels  violating  law  relating  thereto.  (Act 
Aug.  24,  1912,  sec.  9,  37  Stat.,  501.) 

Not  to  re^'eive  goods  or  merchandise  for 
freight,  except  gold,  silver,  or  jewels,  without 
authority  from  President  or  Secretary  of  the 
Navy.     (Sec.  1624,  R.S.,  art.  13.) 

Secretary  of  the  Navy  may,  in  his  discretion, 
at  the  request  of  the  National  Board  of  Health, 
place  gratuitously  at  the  disposal  of  the  Com- 
missioners of  Quarantine  or  the  proper  author- 
ties  at  any  of  the  ports  of  the  United  States, 
to  be  used  by  them  temporarily  for  quarantine 
purposes,  such  vessels  belonging  to  the  United 


772 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1529. 


States  as  are  not  required  for  other  uses  of  the 
National  Government,  subject  to  such  restric- 
tions and  regulations  as  he  may  deem  necessary 
to  impose  for  the  preservation  thereof.  (Act 
June  14,  1879,  21  Stat.,  50.) 

Vessels  may  be  loaned,  upon  written  appli- 
cation of  the  governor  of  the  State,  to  nautical 
schools  at  Boston,  Philadelphia,  New  York, 
Seattle,  San  Francisco,  Baltimore,  Detroit, 
Saginaw,  Mich.,  Norfolk,  and  Corpus  Christi. 
(Act  Mar.  4,  1911,  36  Stat.,  1353.) 

The  President  was  authorized  to  employ 
public  vessels  in  surveying  the  coast  of  the 
United  States,  by  section  4686,  Revised 
Statutes.    (See  note  to  sec.  264  R.  S.) 

The  Secretary  of  the  Navy  is  authorized  to 
place  the  vessels  of  the  United  States  Fish 
Commission  on  the  same  footing  with  the  Na\'y 
Department  as  those  of  the  United  States 
Coast  and  Geodetic  Sur\-ev,  by  act  of  May  31, 
1880.     (21  Stat.,  151,  see  note  to  sec.  264,  R.  S.) 

One  fully  equipped  man-of-war's  cutter  may 
be  loaned,  upon  application  of  the  governor,  to 
one  well-established  military  school  in  any 
State  having  eeacoast  line  or  bordering  on  one 
ormore  of  the  Great  Lakes.  (ActMar.  3, 1901,  31 
Stat.,  1440,  amended  bv  acts  June  29,  1906,  34 
Stat.,  620,  and  June  24,1910,  36  Stat.,  613.) 

For  other  laws,  see  section  1536,  Revised 
Statutes,  and  note  thereto. 

Expenses  incurred  by  vessels  rendering 
services  for  other  departments. — See  note 
to  section  1437,  Re\dsed  Statutes. 

Jurisdiction  over  vessels  of  the  Navy. — 
Freedom  from  State  interference.  (See  notes 
to  Constitution,  Art.  I,  sec.  8,  clauses  13  and 
14;  and  note  to  sec.  355,  R.  S.) 

Command  of  hospital  ships  by  medical 
officers. — See  note  to  section  1488,  Rexdsed 
Statutes. 

Power  of  President  as  Commander  in 
Chief.— The  act  of  March  3,  1901  (quoted 
above),  is  plainly  intended  to  amend  the  pre- 
\'iou3  statutes  on  the  subject,  and  is  designed 
to  allow  the  President  to  reclassify  the  vessels 
of  the  Na\'y  that  had  theretofore  been  fixed 
by  section  1529,  Revised  Statutes,  and  to 
authorize  him  to  assign  the  command  of  ves- 
sels, omitting  all  restrictions.  He  is  by  that 
act  given  the  full  power  contemplated  in  that 
pro\dsion  of  the  Constitution  which  makes  him 
Commander  in  Chief  of  the  Army  and  Na\'y. 
The  act  of  March  3,  1901,  is  a  complete  sub- 
stitute for  prior  laws  or  customs.  The  language 
of  that  act  is  clear  and  unambiguous,  and  was 
enacted  with  a  full  knowledge  of  the  conditions 
brought  about  by  prior  laws  and  of  the  neces- 
sity of  a  new  and  elastic  system  by  which  the 
President  could  from  time  to  time  make  such 
regulations  as  the  necessities  of  the  changing 
conditions  in  the  serxice  should  require.  (27 
Op.  Atty.  Gen.,  571.) 

Under  pre\-iou3  laws  it  was  held  that,  when 
the  rate  of  a  ship  of  war  has  been  fixed  by 
statute,  it  can  not  be  changed  by  an  order  of 
the  Navy  Department  in  so  far  as  to  affect  the 
compensation  of  an  officer  of  the  Navy;  that  it 
is  the  established  course  of  the  legislation  of  the 
United  States  to  designate  the  rate  of  ships  of 
war  when  authorizing  their  construction;  that 
of  all  this,  Congress  has  jiuisdiction,  which  it 


er.ercises  in  its  constitutional  discretion;  that 
it  may  affix  to  certain  ships  of  the  Navy,  by 
express  names,  a  specified  rate,  and  to  others  a 
ditferent  rate,  which  rates  l)ind  the  Secretary 
of  the  Navy  in  so  far  as  they  are  employed  by 
the  statutes  for  any  statutory  object,  such  as  to 
measure  of  pay,  although  they  may  not  for 
other  objects,  which  the  statute  leaves  to  the 
discretion  of  the  executive;  that  in  general, 
and  as  the  apparently  sett  led  legislative  policy 
of  the  Government,  Congress  reserves  itself  the 
power  of  designating  the  character  as  well  as 
the  number  of  vessels  of  the  Navy;  that  if  the 
legislative  nomenclature  be  an  anomaly 
Congress  may  change  same,  if  it  will,  but  that 
to  do  so  exceeds  the  power  of  the  executive.  (8 
Op.  Atty.  Gen.,  503,  Mar.  3,  1857;  compare  10 
Comp.  Dec,  516;  see  also  10  Comp.  Dec,  122, 
and  12  Comp.  Dec,  373.) 

For  other  cases,  as  to  the  power  of  Congress 
and  of  the  President  as  Commander  in  Chief, 
see  note  to  Constitution,  Article  II,  section  2, 
clause  1. 

Ownership  of  vessel  not  accepted  by  the 
Government  but  in  possession  of  the 
builders. — Where  a  vessel  is  on  her  trial  trip 
prior  to  acceptance,  and  still  within  the  pos- 
session and  control  of  the  builders,  the  United 
States,  however,  haA-ing,  by  the  payment  of 
installments,  acquired  49  out  of  50  parts  of  the 
vessel,  she  must  be  regarded  as  practically  the 
property  of  the  Government.  (Williams  v. 
U.  S.,  47  Ct.  Cls.,  186.) 

The  Attorney  General  defers  answering  the 
question  as  to  the  right  of  the  Secretary  of  the 
Navy,  under  the  direction  of  the  President,  to 
employ  the  military  forces  of  the  Government  to 
obtain  possession  of  the  cruiser  Galveston, 
in  course  of  construction  under  contract  with 
the  Wm.  R.  Trigg  Co.,  of  Richmond,  Va., 
which  company  has  gone  into  the  hands  :f  a 
receiver  appointed  by  the  chancery  court  of 
Virginia,  for  the  reason  that  a  method  of  proce- 
dure in  such  cases  is  provided  for  by  section 
3753,  Re\'ised  Statutes,  and  occasion  for  the 
exercise  of  this  power  is  not  likely  to  arise  if 
the  stipulation  authorized  by  that  section  ia 
filed.     (24  Op.  Atty.  Gen.,  679.) 

It  is  not  to  be  doubted  for  a  moment  that  the 
United  States  is  entitled  to  the  undisturbed 
possession  and  control  of  its  property  and  of 
property  in  which  it  is  interested  to  the 
extent  of  that  interest,  and  that  this  possesion 
and  control  are  exempt  from  the  process  of 
every  court.  Yet,  in  order  to  avoid  unseemly 
clashing  and  hostile  demonstration  upon  the 
part  of  creditors  or  claimants,  Congress  has  by 
the  law  embodied  in  sections  3753  and  3754, 
Revised  Statutes,  provided  an  orderly  and 
peaceful  solution  of  controversies  that  may  arise 
between  parties  claiming  adversely  to  the 
United  States,  under  the  terms  of  which  the 
utmost  rights  of  all  claimants  are  preserved 
without  the  functions  of  the  Government  being 
in  the  slightest  disturbed.  However,  thislaw 
is  not  mandatory  in  its  pro\'isions,  and  in  a 
palpable  case  of  improper  interference  with 
the  Government's  rights  the  strong  Executive 
arm  may  be  relied  upon  for  the  protection  of  its 
sovereignty.     (24  Op.  Atty.  Gen.,  679,  683.) 


773 


Sec.  1534. 


n.  >.  RE  VISED  STAT  UTES. 


The  Navy. 


Quite  apart  from  the  statute,  and  because  of 
the  nature  of  the  ca^e,  it  is  impossible,  on 
primary  grounds,  to  yield  assent  at  all  to  the 
idea  tliat  any  instrumentality  of  the  Govern- 
ment— in  this  case  an  instrumentality  of  prime 
importance — may  l)e  taken  iulo  custody  and 
held  under  any  adverse  authority  whatever. 
This  \ie\\'  applies  whether  the  adverse  custody 


should  assume  to  attach  upon  the  instrumen- 
tality as  a  completed  thing  or  upon  one  in 
process  of  creation.  (24  Op.  Atty.  Gen.,  679, 
682.) 

P'or  other  cases  as  to  the  freedom  of  Federal 
instrumentalities  from  State  interference,  see 
note  to  Constitution,  Article  I,  section  8, 
clause  13. 


Sec.  1530.     [Rating  of  vessels.     Superseded.] 


Tliis  section  provided  as  follows: 

"Sec.  1530.    Steamships    of    forty   guns    or 

more  shall  be  classed  as  first  rates,  those  of 

twenty  guns  and  under  forty  as  second  rates, 

and  all  those  of  less  than  twenty  guns  as  third 


rates. " — (12  June,  1858,  c.  153,  s.  5,  v.  11,  p. 
319.) 

It  was  superseded  l)y  act  of  March  3,  1901 
(31  Stat.,  1133),  quoted  above  under  section 
1529,  Revised  Statutes. 


Sec.  1531.     [Rule  for  naming  vessels.     Superseded.] 


This  section  provided  as  follows: 

"Sec.  1531.  The  vessels  of  the  Na^-y  shall 
be  named  by  the  Secretarj^  of  the  Navy,  under 
the  direction  of  the  President,  according  to 
the  following  rule: 

"Sailing-vessels  of  the  first  class  shall  be 
named  after  the  States  of  the  Union,  those  of 
the  second  class  after  the  rivers,  those  of  the 
third  class  after  the  principal  cities  and  towns, 
and  those  of  the  fourth  class  as  the  President 
may  direct. 

''Steamships  of  the  first  class  shall  be  named 
after  the  States  of  the  Union,  those  of  the 
second  class  after  the  rivers  and  principal 
cities  and  towns,  and  those  of  the  third  class  as 
the  President  may  direct." — (3  Mar.,  1819,  c. 
7,  8.  1,  v.  3,  p.  538.  12  June,  1858,  c.  153,  s.  5, 
v.  11,  p.  319.) 

It  was  superseded  by  the  act  of  March  3, 
1901  (31  Stat.,  1133),  quoted  above,  under 
section  1529,  Revised  Statutes,  which  expressly 
authorized  the  President  to  establish  a  classi- 
fication of  vessels  of  the  Navy,  and  from  time 
to  time  to  modify  such  classification,  thereby 
superseding  the  provisions  of  this  section 
which  established  rules  for  naming  vessels 
according  to  the  classification  prescribed  by 
sections  1529  and  1530,  Revised  Statutes.  (See 
file  26255-614,  Aug.  9,  1920,  and  26255-614:10, 
Jan.  21,  1921.) 


Other  provisions  for  naming  vessels 
were  embodied  in  the  act  of  May  4,  1898  (30 
Stat.,  390),  as  follows:  "Hereafter  all  first- 
class  battle  ships  and  monitors  owned  by  the 
United  States  shall  be  named  for  the  States, 
and  shall  not  be  named  for  any  city,  place,  or 
person  until  the  names  of  the  States,  shall  have 
been  exhausted:  Provided,  That  nothing 
herein  contained  shall  be  so  construed  as  to 
interfere  with  the  names  of  States  already  as- 
signed to  any  such  battle  ship  or  monitor.  " 

The  act  of  May  4,  1898,  was  modified  1)y  act 
of  May  13,  1908  (35  Stat.,  159),  which  provided 
that  so  much  of  said  act  of  May  4,  1898,  "as 
pro^-ides  that  monitors  owned  by  the  United 
States  shall  be  named  for  the  States,  and  shall 
not  be  named  for  any  city,  place,  or  person 
until  the  names  of  the  States  shall  have  been 
exhausted,  is  hereby  repealed,  and  monitors 
now  owned  l)y  the  United  States  or  hereafter 
built  may  be  named  as  the  President  may 
direct.  "  (See  file  26255-614,  Aue.  9,  1920,  and 
26255-614:10,  Jan.  21,  1921.) 

Gifts  to  vessels  from  States,  munici- 
palities, or  others,  presented  in  accordance 
with  custom,  may  be  accepted  by  the  Secre- 
tary of  the  Navy.  (Act  May  20,  1908,  35  Stat., 
171.) 


Sec.  1532.  [Two  vessels  not  to  bear  the  same  name.]  Care  shall  be  taken 
that  not  more  than  one  vessel  in  the  Xav}^  shall  bear  the  same  name. — (3  Mar., 
1819,  c.  7,  s.  1,  V.  3,  p.  538.     12  June,  1858,  c.  153,  s.  5,  v.  11,  p.  319.) 

Sec.  1633.  [Names  of  purchased  vessels.]  The  Secretary  of  the  Navy- 
may  change  the  names  of  any  vessels  purchased  for  the  Navy  by  authority  of 
law.— (5  Aug.,  1861,  0.  51,  s.  2,  v.  12,  p.  316.) 


When  in  the  opinion  of  the  President  the  prices 
asked  for  the  charter  of  vessels  for  the  trans- 
portation of  fuel  for  the  Navy  are  excessive, 
he  is  authorized  to  purchase  vessels  suita- 


ble for  the  purpose,  and  if  money  is  not 
otherwise  available  to  pay  for  them  from 
the  appropriation  "Fuel  and  transporta- 
tion."    (Act  July  1,  1918,  40  Stat.,  730.) 


Sec.  1534.  [Vessels  kept  in  service  in  time  of  peace.]  The  President  is 
authorized  to  keep  in  actual  service  in  time  of  peace,  such  of  the  public  armed 
vessels  as,  in  his  opinion,  may  be  required  by  the  nature  of  the  service,  and  to 
cause  the  residue  thereof  to  be  laid  up  in  ordinarj^  in  convenient  ports. —  (21 
April,  1806,  c.  35,  s.  2,  v.  2,  p.  390.) 

774 


The  Navy. 


Pt.2.  RE  VISED  STAT  UTES. 


Sec.  1536. 


Sec.  1535.  [Vessels,  how  officered  and  manned.]     Vessels  in  actual  service, 

in  time  of  peace,  shall  be  officered  and  manned  as  the  President  may  direct, 

subject  to  the  provisions  of  section  fifteen  hundred  and  twenty-nine. — (21  April, 

1806,  c.  35,  s.  3,  V.  2,  p.  390.) 

Amendment  to  this  eection  was  made  by  act  |           of  section   fifteen  hundred   and   twenty- 

of  March  3,    1901,   quoted   above,    under  nine, "  appearing  in  this  section, 

section  1529,  Revised  Statutes,  which  act  In  time  of  war  retired  officers  may  be  assigned 

superseded  section  1.529  and  thereby  super-  to  the  command  of  vessels  and  squadrons, 

seded  the  words,  "subject  to  the  provisions  (Sees.  1463-1465,  R.S.) 

Sec.  1536.  [Vessels  to  assist  distressed  navigators.]  The  President  may, 
when  the  necessities  of  the  service  permit  it,  cause  any  suitable  number  of 
public  vessels  adapted  to  the  purpose  to  cruise  upon  the  coast  in  the  season  of 
severe  weather  and  to  afford  such  aid  to  distressed  navigators  as  their  circum- 
stances may  require ;  and  such  public  vessels  shall  go  to  sea  fully  prepared  to 
render  such  assistance. —  (22  Dec,  1837,  c.  1,  v.  5,  p.  208.) 


By  act  of  March  3,  1905  (33  Stat.,  1164),  it  was 
pro\dded  that  "the  President  in  his  dis- 
cretion may  temporarily  detail  any  vessel 
or  vessels  of  the  Navy  to  remove  or  destroy 
derelicts  in  the  course  of  vessels  at  sea, " 
etc. 

By  act"  of  May  12,  1906  (34  Stat.,  190),  the 
Secretary  of  the  Treasury  was  authorized 
to  have  constructed  a  vessel  "  for  the  pur- 
pose of  blomng  up  or  otherwise  destroying 
or  towing  into  port  wrecks,  derelicts,  and 
other  floating  dangers  to  navigation." 

Section  2759,  Revised  Statutes,  provided  that 
"  the  revenue  cutters  on  the  northern  and 
northwestern  lakes,  when  put  in  corunais- 
sion,  shall  be  specially  charged  with  aiding 
vessels  in  distress  on  the  lakes." 

By  act  of  April  19,  1906  (sec.  2,  34  Stat.,  123), 
the  construction  was  autliorized,  under 
the  supervision  of  the  Revenue-Cutter 
Service,  of  a  first-class  ocean-going  tug 
for  service  in  saving  life  and  property  in 
tlie  vicinity  of  the  north  Pacific  coast  of 
the  United  States,  to  be  equipped  with 
modern  life  and  property  saving  appli- 
ances useful  in  assisting  vessels  and  res- 
cuing persons  and  property  from  the 
perils  of  the  sea. 

By  resolution  of  October  31,  1893  (28  Stat.,  13), 
it  was  provided  that  "the  President  of  the 
United  States  be,  and  he  is  hereby,  author- 
ized to  make,  with  the  several  Govern- 
ments interested  in  the  navigation  of  the 
North  Atlantic  Ocean,  an  international 
agreement  providing  for  the  reporting, 
marking,  and  removal  of  dangerous 
wrecks,  derelicts,  and  other  menaces  to 
navigation  in  the  North  Atlantic  Ocean 
outside  the  coast  waters  of  the  respective 
countries  bordering  thereon." 

By  act  of  July  1,  1918  (40  Stat.,  705),  it  was 
provided  "that  hereafter  the  Secretary 
of  the  Navy  is  authorized  to  cause  vessels 
under  his  control  adapted  to  the  purpose, 
to  afford  salvage  service  to  public  or  pri- 
vate vessels  in  distress:  I'rovided,  That 
when  such  salvage  service  is  rendered  by 
a  vessel  specially  equipped  for  the  purpose 
or  by  a  tug,  the  Secretary  of  the  Navy  may 
determine  and  collect  reasonable  compen- 
sation therefor." 


By  section  4642,  Revised  Statutes,  it  is  pro- 
vided that  all  salv^age  accruing  or  awarded 
to  any  vessel  of  the  Navy  shall  be  distrib- 
uted   and    paid  to  the  officers  and    men 
entitled  thereto  in  the  same  manner  as 
prize  money,  under  the  direction  of  the 
Secretary  of  the  Navy.     The  laws  relating 
to  prize  were  contained  in  sections  4613- 
4652,  Revised  Statutes.     By  act  of  March 
3,  1899,  section  13  (30  Stat.,  1007),  it  was 
provided    that    "all    provisions    of    law 
authorizing  the  distribution  among  cap- 
tors of  the  whole  or  any  portion  of  the  pro- 
ceeds of  vessels,  or  ar  y  property  hereafter 
captured,  condemned  as  prize,  or  providing 
for  the  payment  of  bounty  for  the  sinking 
or   destruction   of   vessels   of   the   enemy 
hereafter  occurring   in    time    of    war,    are 
herel^y  repealed . ' ' 
By  act  of  April  28,  1908  (35  Stat.,  69),  it  was 
provided  that  the  authority  therein  con- 
ferred upon  the  Secretary  of  Commerce  to 
make  and  enforce  regulations  to  promote 
the   safety    of    life    on    navigable    waters 
during  regattas  or  marine  parades  may  be 
transferred  for  any  special  occasion  to  the 
head  of  another  department  by  the  Presi- 
dent   whenever    in    his    judgment    such 
transfer  is  desirable. 
By  act  of  March  3,  1883  (22  Stat.,  475),  the 
Secretary  of  the  Navy  was  authorized  to 
constitute  and  introduce,  as  a  portion  of 
the  equipment  of  the  Navy,  the  life-saving 
dress  adopted  and  approved  by  the  Life- 
Saving  Service  of  the  United  States,     (By 
act  of  Jan.  28,  1915,  38  Stat.,  800,  the  Life- 
Saving  Service  and   the   Revenue-Cutter 
Service  were  amalgamated  under  the  name 
of  the  "Coast  Guard.") 
Salvage. — Under    section     1536,     Revised 
Statutes,  it  is  a  part  of  the  duty  of  the  Navy  to 
assist  vessels  in  distress.     In  an  opinion  ren- 
dered as  early  as  July  8,  1856  (7  Op.  Atty.  Gen., 
756),    the    Attorney    General    remarked    that 
'"officers  and  crews'  of  the  public  ships  of  the 
United  States  are  not  entitled  to  salvage,  civil 
or  military,  as  of  complete  legal  right,"  and 
that  "the" allowance  of  salvage,  civil  or  mili- 
tary, in  such  cases,  like  the  allowance  of  prize 
monev  on  captures,  is  against  public  policy, 
and  ought  to  be  abolished  in  the  sea  service  as 


775 


Sec.  1538. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


it  was  long  ago  in  the  land  service."  The  dis- 
tribution of  prize  money  has  since  been  al)ol- 
ished  by  statute  (see  note  above),  but  there  has 
been  no  late  legislation  respecting  salvage. 
(Naval  Dig.  1916,  p.  557,  citing  file  4496-79, 
Oct.  17,  1907.  But  see  act  July  1,  1918,  noted 
above.) 

In  the  recent  history  of  the  Navy  no  claim 
has  ])eon  allowed  for  salvage,  the  Navy  Depart- 
ment haA-ing  taken  the  ground,  in  a  number  of 
cases,  that  such  claims  should  not  be  made. 
In  one  or  two  instances,  where  a  bonus  was 


voluntarily  tendered  for  distribution  among 
the  officers  and  men  of  a  naval  vessel,  such  gift 
has  been  informally  accepted.  (Naval  Dig. 
1916,  p.  557,  citing  file  Nos.  4496-79,  Oct.  17, 
1907;  7173;  27601-116;  2,  May  17,  1915;  27673- 
342,  Dec.  23,  1915.) 

In  a  recent  salvage  case  the  actual  cost  of 
certain  sah-age  serxices  rendered  a  merchant 
vessel  by  a  naval  vessel  was  collected  and  de- 
posited to  the  credit  of  the  United  States. 
(Naval  Dig.  1916,  p.  557,  citing  file  27601-116.) 


Sec.  1537.  [Patented  articles  connected  with  marine  engines.]  No  patented 
article  connected  with  marine  engines  shall  hereafter  be  purchased  or  used  in 
connection  with  any  steam-vessels  of  war  until  the  same  shall  have  been  sub- 
mitted to  a  competent  board  of  naval  engineers,  and  recommended  by  such 
board,  in  writing,  for  purchase  and  use. —  (18  July,  1861,  c.  8,  s.  3,  v.  12,  p.  268.) 


time  of  his  employment  or  ser\ice.  (Act 
July  1,  1918,  40  Stat.,  705,  amending  act 
June  25,  1910,  36  Stat.,  851.  See  also  note 
to  Constitution,  Art.  I,  sec.  8,  clause  8.) 

Suit  may  also  be  brought  for  use  of  invention  by 
the  United  States  prior  to  issuance  of 
patent,  where  the  grant  of  a  patent  was 
withheld  by  order  of  the  President  in  the 
interest  of  the  pubUc  safety  or  defense. 
(Act  Oct.  6,  1917,  sec.  10,  40  Stat.,   422.) 

The  Secretary  of  the  Navy  was  authorized,  by 
act  of  August_29,  lOio  (39  Stat.,  570),  to 
construct,  equip,  and  operate  a  laboratory 
for  experimental  and  research  work  on  the 
subject,  among  others,  of  "improvement 
and  development  in  submarine  engines," 
and  such  other  necessary  work  for  the 
benefit  of  the  Government  service. 


No  application  for  patent  shall  be  regarded  as 

abandoned  which  has  become  the  property 

of  the  Government  of  the  United  States 

and  which  is  important  to  the  armament 

or  defense   of   the   United    States.     (Sec. 

4894,  R.  S.,  amended  by  act  July  6,  1916, 

39  Stat.,  348.) 
Patent  may  be  granted  to  public  officers  with- 
out payment  of  any  fee  where  the  inven- 
tion is  used  or  to  be  used  in  the  public 

ser\dce  without  payment  of  royalty.    (Act 

Mar.  3,  1883,  22  Stat.,  625.) 
Suit  for  compensation  may  be  brought  against 

the  United  States  in  Court  of  Claims  for 

use  of  patented  inventions  without  lawful 

authority,  except  where  patentee  is  in  the 

BerAdce  of  the  United  States,  and  except 

where   the    invention    was    made    by    an 

employee  of  the  United  States  during  the 

Sec.  1538.  [Repairs  on  hull  and  spars.]     Not  more  than  three  thousand 

dollars  shall  be  expended  at  any  navy-yard  in  repairing  the  hull  and  spars  of 

any  vessel,  until  the  necessity  and  expediency  of  such  repairs  and  the  probable 

cost  thereof  are  ascertained  and  reported  to  the  Navy  Department  by  an 

examining  board,  which  shall  be  composed  of  one  captain  or  commander  in  the 

Navy,  designated  by  the  Secretary  of  the  Navy,  the  naval  constructor  of  the 

yard  where  such  vessel  may  bo  ordered  for  repairs,  and  two  master  workmen 

of  said  yard,  or  one  master  workman  and  an  engineer  of  the  Navy,  according 

to  the  nature  of  the  repairs  to  be  made.     Said  master  workmen  and  engineer 

shall  be  designated  by  the  head  of  the  Bureau  of  Construction  and  Repair. — 

(21  Feb.,  1861,  c.  49,  s.  1,  v.  12,  p.  147.) 

cost  of  such  repairs,  to  be  appraised  by  a 
competent  board  of  naval  officers,  shall 
exceed  twenty  per  centum  of  the  estimated 
cost,  appraised  in  like  manner,  of  a  new 
ship  of  the  same  size  and  like  material: 
Provided  further,  That  nothing  herein  con- 
tained shall  deprive  the  Secretary  of  the 
Navy  of  the  authority  to  order  repairs  of 
ships  damaged  in  foreign  waters  or  on  the 
high  seas,  so  far  as  may  be  necessary  to 
bring  them  home." 
The  urgent  deficiency  act  of  June  15,  1917 
(40  Stat.,  212),  and  the  naval  appropria- 
tion acts  of  July  1,  1918  (40  Stat.,  730),  and 
July  11,  1919  (41  Stat.,  149),  contained  the 


The  naval  appropriation  act  of  March  4,  1917 
(39  Stat.,  1184),  and  the  appropriation  acts 
in  previous  years,  under  the  title,  "con- 
struction and  repair  of  vessels,"  contained 
the  following  provisions  which  have  since 
been  omitted:  "Provided,  That  no  part  of 
this  sum  shall  be  applied  to  the  repair  of 
any  wooden  ship  when  the  estimated  cost 
of  such  repairs,  to  be  appraised  by  a  compe- 
tent board  of  naval  officers,  shall  exceed  ten 
per  centum  of  the  estimated  cost,  appraised 
in  like  manner,  of  a  new  ship  of  the  same 
size  and  like  material :  J 'rovidcd  further.  That 
no  part  of  this  sum  shall  be  applied  to  the 
repair  of  any  other  ship  when  the  estimated 


776 


The  Navy. 


Pt.£.  REVISED  STATUTES. 


Sec.  1541. 


following  provision,  which  has  since  been 
omitted:  "That  the  limitations  imposed 
by  existing  law  relative  to  repairs  to  vessels 
of  the  Navy  shall  not  apply  to  the  expendi- 
ture of  funds  made  available  in  this  act." 
The  act  of  March  2,  1907  (34  Stat.,  1195), 
required  the  Secretary  of  the  Navy  to 
report  to  Congress,  at  the  commencement 
of  each  regular  session,  the  number  of  ves- 
sels and  their  names  upon  which  any  re- 
pairs or  changes  are  proposed  which  in  any 
case  shall  amount  to  more  than  $200,000, 
expenditures  for  such  repairs  or  changes 
to  be  made  only  after  appropriations  in 
detail  are  pro^^.ded  by  Congress.     By  act 


of  March  3,  1909  (35  Stat.,  769),  the  Secre- 
tary was  required  to  report  to  Congress, 
at  the  beginning  of  each  regular  session,  in 
addition  to  the  report  required  by  the  act 
of  March  2,  1907,  a  detailed  statement 
showing  the  amount  expended  from  each 
of  the  appropriations  for  the  repair  of  every 
ship,  where  such  repairs  exceed  for  any 
one  ship  the  sum  of  $200,000  in  any  one 
fiscal  year.  By  act  of  August  29,  1916 
(39  Stat.,  605),  the  statutory  limit  of 
$200,000  for  repairs  and  changes  to  capital 
ships,  as  provided  in  the  act  of  March  2, 
1907,  was  changed  to  $300,000. 


Sec.  1539.  [Repairs  on  sails  and  rigging.]  Not  more  than  one  thousand 
dollars  shall  be  expended  in  repairs  on  the  sails  and  rigging  of  any  vessel,  until 
the  necessity  and  expediency  of  such  repairs  and  the  estimated  cost  thereof 
have  been  ascertained  and  reported  to  the  Navy  Department  by  an  examin- 
ing board,  which  shall  be  composed  of  one  naval  officer,  designated  by  the  Secre- 
tary of  the  Navy,  and  the  master  rigger  and  the  master  sail-maker  of  the  yard 
where  such  vessel  may  be  ordered. —  (21  Feb.,  1861,  c.  49,  s.  1,  v.  12,  p.  147.) 

See  note  to  section  1538,  Revised  Statutes. 

Sec.  1540.  [Sale  of  vessels  unfit  to  be  repairedd  The  President  may  direct 
any  armed  vessel  of  the  United  States  to  be  sold  when,  in  his  opinion,  such 
vessel  is  so  much  out  of  repair  that  it  will  not  be  for  the  interest  of  the  United 
States  to  repair  her.— (21  April,  1806,  c.  47,  s.  3,  v.  2,  p.  402.) 

By  act  of  September  7,  1916,  section  6  (39  Stat., 
730),  it  was  provided  that  the  President 
may  transfer  to  the  Shipping  Board  such 
vessels  belonging  to  the  Navy  Department 


as  are  suitable  for  commercial  uses  and  not 
required  for  naval  use  in  time  of  peace. 
See  notes  to  sections  418  and  1541,  Revised 
Statutes. 


Sec.  1541.  [Sale  of  unserviceable  vessels  and  materials.]  The  Secretary 
of  the  Navy  is  authorized  and  directed  to  sell,  at  public  sale,  such  vessels  and 
materials  of  the  United  States  Navy  as,  in  his  judgment,  can  not  be  advan- 
tageously used,  repaired,  or  fitted  out;  and  he  shall,  at  the  opening  of  each 
session  of  Congress,  make  a  full  report  to  Congress  of  all  vessels  and  materials 
sold,  the  parties  buying  the  same,  and  the  amount  realized  therefrom,  together 
with  such  other  facts  as  may  be  necessary  to  a  full  understanding  of  his  acts. — 
(23  Mar.,  1872,  c.  195,  s.  2,  v.  17,  p.  154.) 


By  act  of  June  30,  1890  (26  Stat.,  194),  the 
Secretary  of  the  Navy  was  authorized  to 
sell,  after  advertisement,  condemned  naval 
supplies,  stores,  and  materials,  either  by 
public  auction  or  by  advertising  for  sealed 
proposals. 

By  act  of  August  5,  1882,  section  2  (22  Stat., 
296),  the  sale  or  exchange  was  prohibited 
of  old  material  of  the  Na\-y  "which  can 
be  profitably  used  by  reworking  or  other- 
wise in  the  construction  or  repair  of  ves- 
sels, their  machinery,  armor,  armament, 
or  equipment' ';  it  was  required  that  such 
old  material  which  can  not  be  profitably 
used  as  aforesaid  "be  appraised  and  sold 
at  public  auction  after  public  notice  and 
advertisement  shall  have  been  given  ac- 
cording to  law  under  such  rules  and  regu- 
lations and  in  such  manner  as  the  Secre- 


tary may  direct";  and  it  was  further  re- 
quired that  the  Secretary  of  the  Navy 
annually  report  in  detail  to  Congress  the 
proceeds  of  all  such  sales.  The  same  act 
and  section  required  that  the  Secretary 
of  the  Navy  cause  to  be  examined  by  com- 
petent boards  of  officers  all  vessels  on  their 
return  from  foreign  stations,  and  all  vessels 
in  the  United  States  as  often  as  once  in 
three  years,  if  practicable,  and  strike  from 
the  Navy  Register  and  report  to_  Congress 
the  name  of  such  vessels  as  said  board, 
with  his  concurrence,  shall  ascertain  to  be 
unfit  for  further  service,  or,  if  unfinished 
in  any  navy  yard,  which  can  not  be  fin- 
ished without  disproportionate  expense. 
By  act  of  March  3,  1883,  section  5  (22  Stat., 
599),  the  Secretary  was  required  to  have 
appraised  all  vessels  stricken  from  the  Navy 


777 


Sec.  1541. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Register  pursuant  to  the  act  of  August  5, 
1882.  and  in  his  discretion  to  sell  any  such 
vessel  for  not  less  than  its  appraised  value, 
after  advertising  in  newspapers  for  sealed 
proposals  and  comphnng  u-ith  other  de- 
tailed provisions  of  said  act;  the  same  act 
prohiliitod  the  sale  of  any  vessel  in  the 
future  in  any  manner  other  than  as  therein 
provided,    "unless  the   President  of   the 
United   States  shall   otherwise   direct  in 
^^Titing." 
By  act  of  August  29,  1916  (39  Stat.,  605),  the 
Secretary  of  the  Navy  was  authorized  to 
sell  any  or  all  of  the  auxiliary  ships  of  the 
Navy,    classified    as    colliers,    transports, 
tenders,  supply  ships,  special  types,  and 
hospital  ships  which  are  18  years"  and  over 
in  age,  which  he  deems  unsuited  to  pres- 
ent needs  of  the  Navy,  and  which  can  be 
disposed  of  at  an  advantageous  price,  not 
less  than  50  per  cent  of  their  original  cost. 
Exchange  of  wom-out  motor-propelled  vehicles 
of  the  Naval  Establishment  as  part  of  pur- 
chase price  of  new  ones,  was  authorized  by 
act  of  August  29,  1916.    (39  Stat.,  565.) 
President  authorized  to  make  regulations  for 
purchase,  preservation,  and  disposition  of 
all  articles,  stores,  and  supplies  for  persons 
in  the  Navy.     (Sec.  1549,  R.  S.) 
Sale  of  useless  papers  in  the  Navy  Department, 
on  naval  vessels,  and  at  na\y    yards   is 
authorized  by  acts  of  February  16,  1889 
(25  Stat.,  672);  March  2,    1895  (28  Stat., 
933);  February   16,    1909,    section    14   (35 
Stat.,  622);  August  22,  1912  (37  Stat.,  329); 
and  March  3,  1915  (38  Stat.,  929). 
Transfer  of  naval  ordnance  and  ordnance  mate- 
rial to  the  War  Department  was  authorized 
by  act  of  July  8,  1918  (40  Stat.,  817). 
For  reference  to  other  laws  relating  to  the  sale, 
exchange,    and   loan   of   vessels  or  other 
property  belonging  to  the  naval  service, 
see  note  to  section  418,  Revised  Statutes. 
Mandamus  proceeding's  to  compel  deliv- 
ery   of   vessel    to   highest    bidder. — The 
United  States,  as  the  owner  in  possession  of  a 
naval  vessel,  can  not  be  interfered  with  behind 
its  back;  nor  can  the  courts  compel  the  Secre- 
taiy  of  the  Navy,  who  has  the  custody  of  such 
vessel,  to  surrender  it  in  a  mandamus  proceed- 
ing to  which  the  United  States  is  not  and  can 
not  be  made  a  party.     (Goldberg  v.  Daniels, 
231  U.  S.,  218.) 

Mandamus  vail  not  lie  at  the  instance  of  one 
who,  in  response  to  advertisement,  has  made 
the  highest  bid  for  a  vessel,  to  compel  the  Secre- 
tary of  the  Navy  to  deliver  the  vessel.  (Gold- 
berg V.  Daniels,  231  U.  S.,  218.) 

The  discretion  of  the  Secretary  of  the  Navy 
is  not  ended  by  receipt  and  opening  of  bids  for 
a  condemned  naval  vessel,  even  though  they 
satisfy  the  conditions  prescribed.  Mandamus 
will  not  lie  to  compel  him  to  accept  the  highest 
bid.  (Goldberg  v.  Daniels,  231  U.  S.,  218, 
affirming  U.  S.  v.  Meyer,  37  App.  D.  C,  282.) 

Delivery  of  public  property  to  contrac- 
tor as  part  payment  on  contract. — Sec- 
tions 1541  and  3618,  Revised  Statutes,  confer 
upon  the  Secretary  of  the  Navy  the  only 
authority  by  which  he  can  dispose  of  the  mate- 
rials of  the  United  States  Navy.  When  in  the 
judgment  of  the  Secretary  they  can  be  advan- 


tageously used  they  must  be  used;  when  they 
can  not  be  so  used  they  must  be  sold  at  public 
sale  and  the  proceeds  covered  into  the  Treasury. 
No  officer  of  the  Navy  Department  had  any 
authority,  therefore,  to  deliver  to  a  contractor 
the  materials  of  the  Navy  to  be  sold  by  him  and 
to  allow  him  to  put  the  proceeds  into  his  own 
pocket.  (Steele  v.  U.  S.,  113  U.  S.,  128,  133.) 
A  private  sale  of  old  material  arising  from  the 
breaking  up  of  a  vessel  of  war,  made  by  an  offi- 
cer of  the  Navy  Department  to  a  contractor  for 
repairs  of  a  war  vessel  _  and  machinery,  is  in 
violation  of  the  provisions  of  section  1541, 
Re\dsed  Statutes.  (Steele  v.  U.  S.,  113  U,  S., 
128.) 

The  allowance  of  the  estimated  value  of  such 
material  in  the  settlement  of  the  contractor's 
accounts  is  a  violation  of  the  provisions  of  sec- 
tion 3618,  Revised  Statutes.  (Steele  v.  U.  S., 
113  U.  S.,  128.) 

A  settlement  of  such  accounts  at  the  Navy 
Department  and  at  the  Treasury,  in  which  the 
contractor  was  debited  vdth  the  material  at  the 
estimated  value,  does  not  preclude  the  United 
States  from  showing  that  the  estimates  were 
far  below  the  real  value,  and  from  recovering 
the  difference  between  the  amount  allowed 
and  the  real  value.  (Steele  v.  U.  S.,  113  U.  S., 
128.) 

Delay  in  enforcing  a  claim  arising  out  of  an 
illegal  sale  of  the  property  of  the  United  States 
at  a  value  far  below  its  real  worth  can  not  be  set 
up  as  a  bar  to  the  recovery  of  its  value.  (Steele 
V.  U.  S.,  113  U.  S.,  128.) 

An  officer  of  the  Government  can  not  trade 
off  to  a  contractor,  in  payment  of  the  money 
due  him  on  his  contract,  old  materials  belong- 
ing to  the  United  States,  when  in  the  judgment 
of  the  officer  they  can  not  te  advantageously 
used.    The  delivery  of  such  old  material  to  a 
contractor,  with  or  ^vithout  the  authority  of  the 
Navy  Department,  if  it  was  intended  to  vest 
in  the  contractor  any  title  to  the  material,  waa 
without  authority  of  law.     Where  the  property 
80  deli\'ered  was  charged  to  the  contractor  at 
about  one-fourth  its  actual  value,  the  United 
States  is  entitled  to  recover  the  difference  be- 
tween the  amount  charged  and  its  real  value. 
The  whole  transaction  was  illegal,  and  the  con- 
tractor is  chargeable  with  knowledge  of  the 
fact.    It  was  in  effect  a  private  sale  of  the 
property  of  the   United   States  at  a  grossly 
inadequate  price.     The  fact  that  the  account 
had  been  settled  by  the  officers  of  the  Na\7- 
Department  did   not  cure   the   unauthorized 
acts.    Both  the  disposition  of  the  property  and 
the  settlement  of  the  account  were  without 
authority  of  law  and  not  binding  on  the  Govern- 
ment.    (Steele  v.  U.  S.,  113  U.  S.,  128,  133.) 

Exchange  of  vessels. — The  Secretary  of 
the  Na\y  can  not  exchange  a  vessel  belonging 
to  the  Navy,  which  has  been  condemned  as 
unfit  for  naval  purposes,  for  another  vessel, 
notwithstanding  the  exchange  might  be  of 
advantage  to  the  public  service.  The  disposi- 
tion of  such  vessel  is  controlled  by  the  act  of 
May  23,  1872,  section  2  [now  sec.  1541,  R.  S.]. 
The  Secretary  of  the  Navy  can  only  dispose  of 
vessels  and  materials  belonging  to  the  United 
States  and  under  the  control  of  his  department 


778 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1543. 


in  manner  as  prescribed  in  said  section.  (14 
Op.  Atty.  Gen.,  369.) 

For  other  cases,  see  notes  to  sections  161,  355, 
and  418,  Revised  Statutes. 

Loan  of  public  property. — The  head  of 
a  department  has  no  power  to  turn  over  Govern- 
ment property  to  States  or  individuals,  to  be 
used  for  any  purpose  not  authorized  by  some 
act  of  Congress,  any  more  than  he  has  power 
to  gi^'e  such  property  away  absolutely.  The 
property,  real  and  personal,  of  the  United 
States  is  dedicated  by  law  to  the  uses  and  pur- 
poses of  the  United  States,  and  nothing  short  of 
an  act  of  Congress  can  authorize  its  application 
to  any  other  uses  and  purposes.  The  question 
is  one  of  power,  and  that  must  come  from 
Congress  and  is  not  to  be  inferred  from  the  fact 
that  what  is  recommended  would  be  highly 
beneficial  to  the  United  States.  Whether  the 
proposed  application  of  Government  property 
to  State  purposes  is  advisable  or  not  is  a  ques- 
tion for  the  legislative  and  not  the  executive 
department  of  the  Government.  (20  Op. 
Atty.  Gen.,  93,  96,  citing  Steele  v.  U.  S.,  113 
U.  S.,  128.) 

For  other  cases,  see  notes  to  sections  161, 
355,  and  418,  Revised  Statutes. 

Diposition  of  vessel  where  bids  are  less 
than  appraised  value. — The  act  of  March  3, 
1883  (22  Stat.,  599),  pro\ddes  for  the  advertise- 
ment and  sale  of  condemned  vessels  of  the  Navy 
and  that  no  such  vessel  shall  be  sold  for  less 
than  the  appraised  value.  Wliere  the  Secre- 
tary of  the  Na\'y  has  endeavored  to  comply 
with  that  statute,  but  no  one  is  willing  to  pay 
the  appraised  value,  the  case  is  one  not  speci- 
fically covered  by  any  statute.  In  the  absence 
of  any  such  statute,  the  Secretary,  by  virtue  of 
his  office  and  because  of  his  general  duty  to 
care  for  and  preserve  the  property  of  the 
Government  under  his  control,  has  the  right  to 


reject  all  bids  submitted  and  to  dispose  of  such 
condemned  vessel  in  such  way  as  may  seem  to 
him  to  be  most  advantageous  to  the  Govern- 
ment. He  may,  therefore,  very  properly 
utilize  such  portion  of  the  vessel  as  is  of  value, 
and  destroy  that  which  remains  and  which  ia 
valueless.     (28  Op.  Atty.  Gen.,  470.) 

It  is  customary  to  remove  from  condemned 
naval  vessels  before  sale  such  articles  of  outfit 
and  equipage  as  may  still  be  serviceable  to  the 
Government.  This  custom  does  not  depend 
upon  any  statute  authorizing  it,  but  is  based 
upon  the  exercise  of  the  general  official  power 
which  the  Secretary  of  the  Navy  has,  in  virtue 
of  his  office,  to  properly  care  for  and  protect  the 
public  property  committed  to  his  control  and 
to  prevent  unnecessary  waste  of  Government 
property.     (28  Op.  Atty.  Gen.,  470.) 

The  Secretary  of  the  Navy  may  legally  remove 
the  engine  and  boiler  from  a  naval  barge  for 
future  use  by  the  Government,  since  the  vessel 
has  been  found  unfit  for  further  service,  and  the 
highest  bid  received  for  the  vessel  was  much 
less  than  the  value  of  the  engine  and  boiler. 
The  hull,  being  valueless,  may  be  sunk  or  de- 
stroyed.    (28  Op.  Atty.  Gen.,  470.) 

Status  of  vessel  stricken  from,  the  Navy 
Register. — Although  a  board  to  examine  ves- 
sels of  the  Navy,  under  the  act  of  August  5, 
1882  (22  Stat.,  296,  sec.  2),  finds  a  vessel  "unfit 
for  further  service  as  a  cruiser,  "  and  her  name 
is  stricken  from  the  list  of  ships  in  the  Navy 
Register,  that  does  not  necessarily  muster  her 
out  of  the  service.  A  vessel  condemned  by  a 
board  as  unfit  for  a  cruiser,  but  subject  to  the 
usual  naval  routine  and  put  to  kindred  uses, 
her  officers  being  subject  to  the  same  rules  as 
before  she  was  condemned,  remains,  as  to  those 
serving  on  her,  as  much  a  vessel  of  the  Navy 
as  before.     (Pierce  v.  U.  S.,  33  Ct.  Cls.,  294.) 


Sec.  1542.  [Commandants  of  navy-yards.]  The  President  may  select  the 
conunandants  of  the  several  navy-yards  from  officers  not  below  the  grade  of 
commander.— (2  Aug.,  1861,  c.  36,  v.  12,  p.  285.  5  July,  1862,  c.  134,  s.  2, 
V.  12,  p.  510.) 


Military  command  by  staff  officers:  See  section 

1488,  Revised  Statutes. 
Marine  officers  not  to  command  navy  yards. 
See  section  1617,  Revised  Statutes. 

Commandant  must  be  line  officer. — The 
grade  of  commander  exists  only  in  the  line  of 
the  Navy,  therefore  the  words,  "officers  not 
below  the  grade  of  commander, "  used  in  this 
section,  require  that  the  commandants  of  the 
several  navy  yards  be  officers  of  the  line.  (File 
5038-20:1,  Jan.  18,  1915.  See  note  to  sees.  1404 
and  1390,  R.  S.) 

"Navy  yard"  defined. — Where  the  Com- 
monwealth of  Virginia  ceded  to  the  United 
States  jurisdiction  over  certain  public  lands 
forthepurposeof anavy yard,  by  "navy  yard" 
was  meant  not  merely  the  land  on  which  the 


Government  does  work  connected  with  ships 
of  the  Navy,  but  the  waters  contiguous  neces- 
sary to  float  the  vessels  of  the  Navy  while  at 
the  navy  yard.  (Ex  parte  Tatem,  23  Fed.  Cas., 
No.  13759;  see  art.  5354,  Naval  Institutions, 
1913.) 

Transfer  of  property  between  navy 
yards. — When  specifically  appropriated  for  to 
be  used  at  a  designated  navy  yard,  can  not  be 
transferred  to  another  without  legislative  au- 
thority. (28  Op.  Atty.  Gen. ,  511,  as  to  floating 
dry  dock;  31  Op.  Atty.  Gen.,  594,  as  to  ma- 
chinery and  tools.) 

Abolishing  navy  yards. — Whether  this 
may  be  done  without  legislative  authority, 
quaere.     (31  Op.  Atty.  Gen.,  594,  596.) 


Sec.  1543.  [Master  workmen.]  The  persons  employed  at  the  several  navy- 
yards  to  superintend  the  mechanical  departments,  and  heretofore  known  as 
master  mechanics,  master  carpenters,  master  joiners,  master  blacksmiths, 
master  boiler-makers,  master  sail-makers,  master  plumbers,  master  painters, 
master  calkers,   master  masons,   master  boat-builders,   master  spar-makers, 


54641°— 22- 


-50 


779 


Sec.  1544. 


PL  2.  RE  VISED  STAT  UTES. 


The  Navy, 


master  block-makers,  master  laborers,  and  the  superintendents  of  rope-walks 
shall  be  mon  skilled  in  their  several  duties  and  appointed  from  civil  life,  and 
shall  not  be  appointed  from  the  oflicers  of  the  Navy. — (17  June,  1868,  c.  61,  s. 
1,  V.  15,  p.  69.) 

Sec.  1544.  [Laborers,  how  selected.]  Laborers  shall  be  emploj^ed  in  the 
several  navy-yards  by  the  proper  officers  in  charge  with  reference  to  skill  and 
eihciency,  and  without  regard  to  other  considerations. —  (23  May,  1872,  c.  195, 
s.  1,  V.  17,  p.  146.) 


No  enlisted  men  or  seamen,  not  inchidinfr  com- 
missioned and  warrant  ofRoers,  on  battle- 
ships of  the  Nayy,  when  such  battleships 
are  docked  or  laid  up  at  any  navy  yard  for 
repairs,  shall  be  ordered  or  required  to  per- 
form any  duties  except  such  as  are  or  may  be 
performed  bv  the  crew  while  at  sea  or  in  a 
foreign  port.'    (Act  Aug.  22,  1912.  37  Stat., 
355.) 
Moral  character  considered. — Taken  liter- 
ally, section  1544  might  require  a  disregard  for 
good  character  or  personal  morals  on  the  part  of 
an  applicant  for  employment  if  his  skill  in  his 
trade  and  efficiency  as  a  mechanic  were  notable 
and  undoubted.    Such  was  not  the  intention 
of  Congress,  and  this  section  should  be  read  as 
though   the  word  "primarily"  or   the  words 
"first  of  all"  were  interpolated  between  the 
words  '  'reference"  and  "to  ";  or  as  though  the 
words  "suggesting  the   choice  of  those  less 
eflBcient  and  skillful"  had  been  appended  after 
the    word    "considerations."     (27    Op.    Atty. 
Gen.,  184,  189.) 

Pohtical  considerations. — There  can  be 
no  doubt  that  the  "considerations"  which 
Congress  had  in  mind  refer  to  general  complaints 
which  had  been  made  by  reason  of  the  alleged 
employment  of  workmen  at  navy  yards  for 
political  considerations  and  through  the  influ- 
ence of  politicians  in  order  to  secure  expected 
partisans  or  personal  advantage.  This  section 
intended  to  lay  down,  as  a  rule  for  the  guidance 
of  officers  at  the  several  navy  yards,  the  princi- 
ple that  workmen  should  be  employed  for  the 
benefit  of  the  Government  and  not  for  any  other 
reason.    (27  Op.  Atty.  Gen.,  184,  189.) 

Nature  of  tests  to  determine  fitness. — 
The  Secretary  of  the  Navy  may  direct  by  what 
reasonable  and  appropriate  tests  fitness  or  com- 
parative fitness  may  be  ascertained,  and  in  the 
absence  of  any  law,  rule,  or  order  on  the  sub- 
ject, that  matter  would  be  left  to  the  discretion 
of  the  appointing  power.  (27  Op.  Atty.  Gen., 
184.) 

Persons  discharged  from  military  serv- 
ice.— Section  1544,  Revised  Statutes,  must  be 
construed  in  connection  with  1754,  Revised 
Statutes,  which  provides  that  persons  honora- 
bly discharged  from  the  military  or  naval  serv- 
ice by  reason  of  disability,  etc.,  incurred  in 
the  line  of  duty,  shall  be  preferred  for  appoint- 
ments to  civil  offices  where  they  are  found  to 
possess  the  necessary  business  capacity  to  prop- 
erly discharge  the  duties  of  such  office.  (27 
Op^  Atty.  Gen.,  184.) 

Regulations  promulgated  to  give  effect  to 
sections    1544    and    1754,    Revised    Statutes, 


should  provide  that  persons  honorably  dis- 
charged from  the  military  or  naval  ser^-ice  by 
reason  of  disaV)ility  resulting  from  wounds  or 
sickness  incurred  in  the  line  of  duty,  if  fitted 
physically,  mentally,  and  morally  to  discharge 
with  reasonable  skill  and  efficiency  the  duties 
of  the  position  to  be  filled,  are  entitled  to  be 
selected  in  preference  to  others,  although  the 
latter  may  possess  greater  skill  and  efficiency. 
As  between  persons  within  this  privileged  class 
relative  skill  and  efficiency  should  be  decisive 
as  to  the  right  of  emplo\'Tnent,  and  all  other 
considerations  should  be  subordinated  thereto. 
With  respect  to  all  other  persons,  including 
those  honorably  discharged  on  account  of  ex- 
piration of  enlistment  or  reasons  other  than 
disability  incurred  in  the  line  of  duty,  superior 
fitness  for  the  emplojTuent  should  be  the 
decisive  consideration;  but  where  there  is  no 
appreciable  difference  in  this  respect  between 
two  applicants,  then  an  honorably  discharged 
soldier,  sailor,  or  marine  would  be  entitled  to 
preference  in  conformity  with  the  intendment 
of  section  1755,  Revised  Statutes.  (27  Op- 
Atty.  Gen.,  184.) 

Preference  for  employment. — "Persons 
employed  in  the  clerical,  drafting,  and  inspec- 
tion force  at  na\'y  yards  and  stations  discharged 
for  lack  of  work  or  insufficiency  of  funds  shall 
for  one  year  thereafter  be  preferred  for  employ- 
ment in  such  navy  yards  and  stations  in  the 
clerical,  drafting,  inspection,  and  messenger 
forces."     (Act  Mar.  3,  1909,  35  Stat.,  755.) 

Classifi.ed  service. — Ci\ilian'  employees  at 
na\y  yards,  other  than  laborers  or  workmen, 
are  included  within  the  classified  ser"\dce  and 
are  not  exempted  from  competitive  examina- 
tion by  the  terms  of  section  A  of  the  Ci^il  Serv- 
ice Rules,  but  in  so  far  as  they  come  within 
the  provisions  of  section  3  of  Rule  III  are  sub- 
jected to  special  tests  of  fitness  to  be  prescribed 
in  accordance  with  the  terms  of  the  latter  rule. 
(27  Op.  Atty.  Gen.,  184.) 

Mandamus  will  lie  to  compel  the  members 
of  the  Board  of  Labor  EmploATnent  at  the 
United  States  Navy  Yard,  Washington,  D.  C, 
to  register  an  applicant  for  examination  for 
employment  as  mechanic  or  laborer,  where  the 
refusal  of  the  board  is  based  solely  upon  the  citi- 
zenship of  the  applicant  and  in  this  respect  he 
is  eligible  under  Rule  5  of  the  Civil  _  Ser\ice 
Commission,  promulgated  by  the  President  on 
April  15,  1903,  wMch  modified  previous  regula- 
tions of  the  Navy  Department.  (U.  S.  v. 
Bo^^'yer,  25  App.  D.  C.,  121.  See  note  to  sec. 
417,  R.  S.) 


780 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1545. 


Sec.  1545.  [Salaries;  per  diem  compensation.     Repealed.] 


This  section  provided  as  follows: 

"Sec.  1545.  Salaries  sliall  not  be  paid  to  any 
employes  in  anjr  of  the  navy-yards,  except 
those  who  are  designated  in  the  estimates.  All 
other  persons  shall  receive  a  per  diem  compen- 
sation for  the  time  during  which  they  may  be 
actually  employed."— (14 July,  1862,  c.  16  4,  s. 
1,  12,  p.  564.) 

It  was  expressly  repealed  by  act  of  March 
3,  1909  (35  Stat.,  755),  which  act  made  the  fol- 
lowing new  provision  on  the  same  subject  (35 
Stat.,  754,  755):  "That  hereafter  the  rates  of 
pay  of  the  clerical,  drafting,  inspection,  and 
messenger  force  at  navy-yards  and  naval  sta- 
tions and  other  stations  and  offices  under  the 
Na\y  Department  shall  be  paid  from  lump 
appropriations  and  shall  be  fixed  by  the  Secre- 
tary of  the  Navy  on  a  per  annum  or  per  diem 
basis  as  he  may  elect;  that  the  number  may  be 
increased  or  decreased  at  his  option  and  shall  be 
distributed  at  the  various  navy- yards  and  naval 
stations  by  the  Secretary  of  the  Navy  to  meet 
the  needs  of  the  naval  service  *  *  *;  that 
the  total  amount  expended  annually  for  pay  for 
such  clerical,  drafting,  inspection,  and  mes- 
senger force  shall  not  exceed  the  amounts 
specifically  allowed  by  Congress  under  the 
several  lump  appropriations,  and  that  the 
Secretary  of  the  Navy  shall  each  year,  in  the 
annual  estimates,  report  to  Congress  the  num- 
ber of  persons  so  employed,  their  duties,  and 
the  amount  paid  to  each. " 

(See  act  of  Aug.  29,  1916,  39  Stat.,  558,  as 
to  lump-sum  employees. 

Leaves  of  absence. — By  act  of  August  29, 
1916  (39  Stat.,  617),  it  was  provided  '  'that  each 
and  every  employee  of  the  navy  yards,  gun 
factories,  naval  stations,  and  arsenals  of  the 
United  States  Government  is  hereby  granted 
thirty  days'  leave  of  absence  each  year,  with- 
out forfeiture  of  pay  during  such  leave:  Pro- 
vided further,  That  it  shall  be  lawful  to  allow  pro 
rata  leave  only  to  those  ser\dng  twelve  consec- 
utive months  or  more:  And  provided  further, 
That  in  all  cases  the  heads  of  divisions  shall 
have  discretion  as  to  the  time  when  the  leave 
can  best  be  allowed:  And  provided  further, 
That  not  more  than  thirty  days'  leave  with  pay 
shall  be  allowed  any  such  employee  in  one 
year:  Provided  further,  That  this  provision  shall 
not  be  construed  to  deprive  employees  of  any 
sick  leave  or  legal  holidays  to  which  they  may 
now  be  entitled  under  existing  law. ' ' 

The  act  of  March  3,  1909  (35  Stat.,  755), 
which  was  modified  by  the  above-quoted  pro- 
visions in  the  act  of  August  29,  1916,  contained 
the  following  with  reference  to  per  diem  em- 
ployees at  na\y  yards  and  naval  stations  and 
other  stations  and  offices  under  the  Navy  De- 
partment: '  'That  such  per  diem  employees  may 
hereafter,  in  the  discretion  of  the  Secretary  of 
the  Navy,  be  granted  leave  of  absence  not  to 
exceed  fifteen  days  in  any  one  year,  which 
leave  may,  in  exceptional  and  meritorious 
cases,  where  such  an  employee  is  ill,  be  ex- 
tended, in  the  discretion  of  the  Secretary  of  the 
Navy,  not  to  exceed  fifteen  days  additional  in 
anyone  year." 

"All  officers  and  employees  of  the  United 
States  and  of  the  District  of  Columbia  who  shall 
be  members  of  the  National  Guard  shall  be  en- 


titled to  leave  of  absence  from  their  respective 
duties,  without  loss  of  pay,  time  or  efficiency 
rating,  on  all  days  diu-ing  which  they  shall  be 
engaged  in  field  or  coast-defense  training  or- 
dered or  authorized  under  the  provisions  of 
this  Act."  (Act  June  3,  1916,  sec.  80,  39  Stat., 
203.) 

The  naval  appropriation  act  of  March  4,  1913 
(37  Stat.,  893),  provided  that  "employees 
while  taking  their  leaves  of  absence  shall  not 
receive  compensation  for  services  rendered 
during  the  period  of  such  leave  of  absence  in 
addition  to  leave  pay. " 

The  act  of  August  29,  1916  (39  Stat.,  557), 
provided  that '  'hereafter  any  civilian  employee 
of  the  Navy  Department  who  is  a  citizen  of  the 
United  States  and  employed  at  any  station 
outside  the  continental  limits  of  the  United 
States  may,  in  the  discretion  of  the  Secretary 
of  the  Navy,  after  at  least  two  years'  contin- 
uous, faithful,  and  satisfactory  service  abroad, 
and  subject  to  the  interests  of  the  public  service, 
be  granted  accrued  leave  of  absence,  with  pay, 
for  each  year  of  service,  and  if  an  employee 
should  elect  to  postpone  the  taking  of  any  or  all 
of  the  leave  to  which  he  may  be  entitled  in  piu-- 
suance  hereof  such  leave  may  be  allowed  to 
accumulate  for  a  period  of  not  exceeding  four 
years,  the  rate  of  pay  for  accrued  leave  to  be 
the  rate  obtaining  at  the  time  the  leave  is 
granted. " 

Holidays. — "The  employees  of  the  Navy 
Yard,  Government  Printing  Office,  Bureau  of 
Printing  and  Engraving,  and  all  other  per  diem 
employees  of  the  Government  on  duty  at  Wash- 
ington, or  elsewhere  in  the  United  States,  shall 
be  allowed  the  following  holidays,  to-wit:  The 
first  day  of  January,  the  twenty-second  day  of 
February,  the  fourth  day  of  July,  the  twenty- 
fifth  day  of  December,  and  such  days  as  may 
be  designated  by  the  President  as  days  for 
national  thanksgi-ving,  and  shall  receive  the 
same  pay  as  on  other  days. "  (Res.  Jan.  6, 1885, 
23  Stat.,  516.  See  21  Comp.  Dec,  337,  noted 
below  under  "Pay  at  navy  yards  for  work  on 
holidays.") 

"All  per  diem  employees  of  the  Government, 
on  duty  at  Washington  or  elsewhere  in  the  Unit- 
ed States,  shall  be  allowed  the  day  of  each  year, 
which  is  celebrated  as  'Memorial'  or  'Decora- 
tion Day '  and  the  fourth  of  July  of  each  year,  as 
holiday,  and  shall  receiv-e  the  same  pay  as  on 
other  days."  (Res.  Feb.  23,  1887,  24  Stat., 
644.) 

"The  first  Monday  of  September  in  each 
year,  being  the  day  celebrated  and  known  as 
Labor's  Holiday,  is  hereby  made  a  legal  public 
holiday,  to  all  intents  and  purposes,  in  the 
same  manner  as  Christmas,  the  first  day  of 
January,  the  twenty-second  day  of  February, 
the  thirtieth  day  of  May,  and  the  fourth  day 
of  July  are  now  made  by  law  public  holidays." 
(Act  June  28,  1894,  28  Stat.,  96.) 

Every  Saturday  after  12  o'clock  noon  is  a 
holiday  in  the  District  of  Columbia  under  the 
foUbwing  provision  of  the  District  of  Columbia 
Code,  section  1389  (act  Mar.  3,  1901,  31  Stat., 
1404),  as  amended  by  act  of  June  30,  1902  (32 
Stat.,  520):  "The  following  days  in  each  year, 
namely,  the  first  day  of  January,  commonly 


781 


Sec.  1545. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


called  New  Year's  Day;  the  twenty-second  day 
of  February,  known  as  Washington's  Birthday; 
tlie  Fourth  of  July-  the  thirtieth  day  of  May, 
commonly  called  Decoration  Day;  the  first 
Monday  in  September,  known  as  Labor's  Holi- 
day; the  twenty-fifth  day  of  December,  com- 
monly called  Christmas  Day;  every  Saturday, 
after  twelve  o'clock  noon;  any  day  appointed 
or  recommended  by  the  President  of  the  United 
States  as  a  day  of  pul)lic  fasting  or  Thanks- 
giving, and  the  day  of  the  inauguration  of  the 
President,  in  every  fourth  year,  shall  be  holi- 
days in  the  District  for  all  purposes." 

Holidays  falling  on  Sunday  are  observed  on 
the  following  day  in  the  District  of  Columbia 
under  section  1389  of  the  Code  (cited  above), 
which  contains  the  following  clause:  "WTaen- 
ever  any  day  set  apart  as  a  legal  holiday  shall 
fall  on  Sunday,  then  and  in  such  case  the  next 
succeeding  day  shall  be  a  holiday  *  *  *• " 
The  Naw  Regulations,  article  1289,  after  pro- 
viding that  January  1,  February  22,  May  30, 
July  4,  the  first  Monday  in  Septeml)er,  Decem- 
ber 25,  "and  such  other  days  as  may  be  desig- 
nated by  the  President  (including  the  day  for 
National  Thanksgiving)  shall  be  regarded  as 
holidays  on  board  ships  of  the  Navy  and  at 
naval  stations,"  further  pro\-ides  that  "when- 
ever any  of  the  above-designated  dates  falls  on 
Sunday,  the  following  Monday  shall  be  observ- 
ed as  a  holiday."  General  provision  to  the 
same  effect  with  reference  to  employees  of  the 
Federal  Government  was  made  by  Executive 
order  of  May  22,  1909. 

Civilian  employees  traveling  from  Unit- 
ed States  to  duty  in  insular  possessions 
and  return. — "The  Secretary  of  the  Navy,  in 
his  discretion,  is  authorized  to  pay  all  civilian 
employees  appointed  for  duty  in  the  PhUippine, 
Hawaiian,  and  Samoan  islands,  the  island  of 
Guam,  and  the  island  of  Porto  Rico,  from  the 
date  of  their  sailing  from  the  United  States 
until  they  report  for  duty  to  the  officer  under 
whom  they  are  to  serve,  and  while  returning  to 
the  United  States  by  the  most  direct  route  and 
with  due  expedition,  a  per  diem  compensation 
corresponding  to  their  pay  while  actually  em- 
ployed ;  and  in  cases  where  the  appointee  is  not 
to  fill  an  existing  vacancy  his  pay  while  travel- 
ing may  be  charged  to  the  annual  appropriation 
of  the  bureau  concerned."  (Act  July  1,  1902, 
32  Stat.,  663.) 

Pay  at  navy  yards  for  work  on  holi- 
days.— \\Tiere  employees  of  the  Navy  Depart- 
ment are  required  to  perform  labor  in  the 
District  of  Columbia  on  Saturday  afternoon, 
which  is  a  legal  holiday  in  the  District  of 
Columbia  for  all  purposes,  they  are  entitled  to 
be  paid  therefor  at  the  ordinary  rate  of  pay 
under  Revised  Statutes,  section  1545.  (Adams 
^.  U.  S.,  42Ct.  Cls.,  192.) 

The  work  in  a  navy  yard  is  under  the  control 
of  the  Secretary  of  the  Navy,  and  where  he 
directs  work  to  be  performed  by  per  diem  em- 
ployees on  holidays,  a  regulation  fixing  pay 
operates  as  a  contract  if  it  does  not  contravene 
some  law.     (Adams  r.  U.  S.,  42  Ct.  Cls.,  192.) 

An  order  issued  by  the  Secretary  of  the  NaVy, 
requiring  employees  to  render  service  on  Satm-- 
day  afternoons  with  no  other  compensation  than 
such  as  shall  be  due  by  reason  of  the  extension 


of  hours,  is  presumed  to  be  issued  with  the 
approval  of  the  President  under  section  1547, 
Revised  Statutes.  (Adams  v.  U.  S.,  42  Ct. 
Cls.,  192.) 

\\'here  a  statute  gives  to  certain  employees 
pay  without  work  on  holidays,  and  they  are  re- 
(juired  by  the  head  of  the  department  to  render 
service  on  holidays,  he  may  make  provision  by 
regulation  or  contract  for  extra  pay  for  services 
80  performed.  (Adams  v.  V.  S.,  42  Ct.  Cls., 
192.) 

Exemption -from  work  on  holidays  does  not 
carry  with  it  the  right  to  pay.  If  Congress 
makes  no  provision  for  payment  to  per  diem 
employees  on  holidays,  their  compensation  is 
limited  to  the  time  thev  are  actually  employed. 
(Adams  v.  U.  S.,  42  Ct.  Cls.,  192.) 

Actual  service  is  the  basis  for  pay,  and  where 
there  is  no  law  giving  pay  without  work,  the  per 
diem  employee  is  not  entitled  to  be  paid. 
(Adams  V.  U.  S.,  42  Ct.  Cls.,  192.) 

Per  diem  employees  of  the  Government  at 
navy  yards  and  stations  which  are  not  in  the 
the  United  States  are  entitled  to  be  paid  on 
holidays  as  provided  in  article  382,  Naval  In- 
structions, as  amended  July  6,  1914.  _  By  sec- 
tion 1545,  Revised  Statutes,  per  diem  em- 
ployees in  navy  yards  were  allowed  compensa- 
tion only  for  time  actually  employed,  but  this 
statute  was  repealed  by  the  act  of  March  3, 
1909  (35  Stat.,  7.53, 755),  and  there  is  no  existing 
law  which  said  article  of  the  Naval  Instructions 
contravenes  (21  Comp.  Dec,  337). 

Hawaii  is  in  the  United  States  within  the 
meaning  of  the  joint  resolution  of  January  6, 
1885  (23  Stat.  516),  and  its  provisions  as  to  pay 
for  certain  holidays  are  applicable  to  per  diem 
employees  at  navy  yards  within  that  territory 
(21  Comp.  Dec,  337). 

Suspension  of  work  for  part  of  day 
under  Executive  order.— On  April  6,  1899, 
the  Washington  navy  yard  being  closed  at  noon 
pursuant  to  an  Executive  order,  in  connection 
with  ceremonies  attending  the  interment  of  the 
bodies  of  soldiers  and  sailors  whose  lives  were 
lost  in  the  War  with  Spain,  the  per  diem  em- 
ployees of  the  yard  should  receive  compensa- 
tion for  the  entire  day.  Section  1545,  Revised 
Statutes,  does  not  restrict  the  employees  under 
such  circumstances  to  compensation  for  the 
time  they  were  actually  engaged  in  doing  work. 
The  employees  did  not  cease  work  on  their  ovra 
motion,  nor  were  they  discharged  from  the 
Government  service  for  the  remaining  part  of 
the  day.  They  had  severally  begun  a  day's 
work  under  a  contract  with  the  Government, 
and  had  continued  to  work  until  the  authori- 
ties of  the  shop  closed  the  navy  yard,  shut  up 
its  workshops,  and  arbitrarily  required  them 
to  stop.  They  were  still  actually  in  the  em- 
plovTnent  of  the  Government,  though  instead 
of  laboring  in  the  navy  yard  they  vvere  en- 
gaged, by  direction  of  the  President,  in  doing 
honor  to  the  heroes  who  gave  their  lives  for  the 
country  in  a  foreign  war.  \Miile  the  statute 
of  the  United  States  provides  that  eight  hours 
shall  constitute  a  day 's_ work  for  all  laborers, 
workmen,  and  mech^ajiics  who  may  be  em- 
ployed by  or  on  behalf  of  the  Government  of 
the  United  States,  there  is  no  rule  of  law 
which  exempts  the  Government  from  the  same 


782 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1546. 


Government.  The  suspension  of  such  an  em- 
ployee by  the  commandant  is  in  effect  his  dis- 
charge; and  the  fact  that,  after  his  suspension, 
a  board  is  appointed  to  investigate  charges 
against  him  is  no  recognition  of  his  status  as  an 
employee,  and  gives  him  no  right  to  compen- 
sation, nor  to  a  recovery  of  sums  expended  in 
traveling  to  attend  before  the  board.  (Mur- 
phy V.  V.  S.,  79  Fed.  Rep.,  255.  For  other 
cases,  see  note  to  sec.  416,  R.  S.). 


obligation  to  its  employees  as  that  which  rests 
upon  a  private  individual.  (22  Op.  Atty. 
Gen.,  472). 

Employee  suspended  by  order  of  com- 
mandant.— One  who  is  employed  at  a  navy 
yard  at  a  per  diem  compensation  is  not  entitled 
to  compensation  except  for  the_  time  during 
which  he  actually  renders  services;  and  the 
fact  that,  after  being  suspended  by  the  com- 
mandant, he  holds  himself  ready  to  perform 
such  services,  gives  him  no  claim  against  the 

Sec.  1546.  [Requiring  contributions  for  political  purposes.]  No  officer  or 
employe  of  the  Government  shall  require  or  request  any  working  man  in  any 
navy-yard  to  contribute  or  pay  any  money  for  political  purposes,  nor  shall  any 
working  man  be  removed  or  discharged  for  political  opinion;  and  any  officer  or 
employe  of  the  Government  who  shall  offend  against  the  provisions  of  this  sec- 
tion shall  be  dismissed  from  the  service  of  the  United  States. — (2  Mar.,  1867,  c. 
172,  s.  3,  V.  14,  p.  492.) 


By  act  of  June  30,  1876  (19  Stat.,  69),  it  was 
provided  that  '  'no  increase  of  the  force  at 
any  navy  yard  shall  be  made  at  any  time 
within  sixty  days  next  before  any  election 
to  take  place  for  President  of  the  United 
States,  or  members  of  Congress,  except  when 
the  Secretary  of  the  Navy  shall  certify  that 
the  needs  of  the  public  service  make  such 
increase  necessary  at  that  time  which  cer- 
tificate shall  be  immediately  published 
when  made. " 

Civil  Service  Commission  is  to  prepare  rules  on 
the  subject  of  political  contributions  and 
services  by  persons  in  the  public  service, 
and  preventing  the  coercion  of  any  person 's 
political  action  bv  persons  inthepublicserv- 
ice.    (Act.Ian.  16, 1883,  sec.  2,  22  Stat. ,  403.) 

Detailed  records  of  political  contributions  re- 
quired to  be  kept  and  filed,  etc.,  bv  politi- 
cal committees.  (Act  June  25,  1910,  36 
Stat.,  822,  as  amended  by  act  Aug.  19, 
1911,  37  Stat.,  25.) 

Punishment  of  persons  in  the  United  States 
service  for  directly  or  indirectly  soliciting 
or  receiving  political  contributions  from 
ofBcers  or  employees  of  the  United  States  is 
provided  for  by  United  States  criminal 
code,  act  of  March  4,  1909,  sections  118,  122 
(35  Stat.,  1110). 

Punishment  of  any  person  for  soliciting  in  any 
manner  whatever  or  receiving  any  political 
contribution  in  any  room  or  building 
occupied  in  the  discharge  of  ofhcial  duties 
by  any  employee  of  the  United  States,  or 
in  any  navy  yard,  fort,  or  arsenal,  is  pro- 
vided for  by  United  States  criminal  code, 
act  of  March  4,  1909,  sections  119,  122  (35 
Stat.,  1110). 

Punishment  of  any  officer  or  employee  of  the 
United  States  for  discharging,  promoting, 
or  degrading,  or  changing  the  official  rank 
or  compensation  of  any  other  officer  or  em- 
ployee, or  promising  or  threatening  to  do  so, 
for  giving  or  withholding  any  political  con- 
tribution, is  provided  for  by  United  States 
criminal  code,  act  of  March  4, 1909,  sections 
120,  122  (35  Stat.,  1110). 

Punishment  of  any  person  in  the  service  of  the 
United  States  for  directly  or  indirectly  giv- 


ing any  political  contribution  to  any  other 
person  in  the  United  States  service,  is  pro- 
vided for  by  United  States  criminal  code, 
act  of  March  4,  1909,  sections  121,  122  (35 
Stat.,  1110). 

Purpose  of  section. — The  evident  purpose 
of  Congress  in  all  this  class  of  enactment  has 
been  to  promote  efficiency  and  integrity  in  the 
discharge  of  official  duties,  and  to  maintain 
proper  discipline  in  the  public  service.  Clear- 
ly such  a  purpose  is  within  the  just  scope  of 
legislative  power.  If  contributions  from  those 
in  public  employment  may  be  solicited  by 
others  in  official  authority,  it  is  easy  to  see  that 
what  begins  as  a  request  may  end  as  a  demand, 
and  that  a  failure  to  meet  the  demand  may  be 
treated  by  those  having  the  power  of  removal 
as  a  breach  of  some  supposed  duty  gi'o'nang  out 
of  the  political  relations  of  the  party.  The  law 
contemplates  no  restrictions  upon  either  giving 
or  receiving,  except  in  so  far  as  may  be  neces- 
sary to  protect  in  some  degree  those  in  the  pub- 
lic service  against  exactions  through  fear  of 
personal  loss.  This  purpose  of  the  restriction 
and  the  principle  on  which  it  rests  are  rnost 
distinctly  manifested  in  section  1546,  Re\'ised 
Statutes.  If  there  were  no  other  reasons  for 
legislation  of  this  character  than  such  as  relate 
to  the  protection  of  those  in  the  public  service 
against  unjust  exactions,  its  constitutionality 
would  be  clear.  But  there  are  other  reasons 
equally  good.  If  persons  in  public  employ 
may  be  called  on  by  those  in  authority  to  con- 
tribute from  their  personal  income  to  the  ex- 
penses of  political  campaigns,  and  a  refusal  may 
lead  to  putting  good  men  out  of  the  service, 
liberal  payments  may  be  made  the  ground  for 
keeping  poor  ones  in.  Also,  if  part  of  the  com- 
pensation received  for  public  services  must  be 
contributed  for  political  purposes,  it  is  easy  to 
see  that  an  increase  of  compensation  may  be 
required  to  provide  the  means  to  make  the  con- 
tribution, and  that  in  this  way  the  Government 
itself  may  be  made  to  furnish  indirectly  the 
money  to  defray  the  expenses  of  keeping  the 
political  party  in  power  that  happens  to  have 
for  the  time  "being  the  control  of  the  public 
patronage.    (Ex  parte  Curtis,  106  U.  S.,  371.) 


783 


CHAPTER  SEVEN. 


GENERAL  PROVISIONS  RELATING  TO  THE  NAVY. 


Sec. 

1547.  Regulations. 

1548.  Copy  to  be  furnished  to  officers. 

1549.  Regulations  of  supplies. 

1550.  Appointment    of     persons    to    disburse 

money  on  foreign  stations. 


Sec. 


1551.  Insane  of  the  Navy. 

1552.  Coal  depots. 

1553.  Enticing  persons  to  desert. 

1554.  Captured  flags. 

1555.  Preservation  of,  in  some  public  place. 


Sec.  1547.  [Regulations.]  The  orders,  regulations,  and  instructions 
issued  by  the  Secretary  of  the  Navy  prior  to  July  14,  1862,  with  such  altera- 
tions as  he  may  since  have  adopted,  with  the  approval  of  the  President,  shall 
be  recognized  as  the  regulations  of  the  Navy,  subject  to  alterations  adopted 
in  the  same  manner. —  (14  July,  1862,  c.  164,  s.  5,  v.  12,  p.  565.) 


See  note  to  section.  161,  Revised  Stat- 
utes, for  collection  of  decisions  on  the  subject 
of  executive  regulations. 

Valid  regulations  have  the  force  of 
law. — It  is  a  well-settled  rule  of  judicial  con- 
struction that  the  regulations  issued  by  the 
Secretary  of  the  Na\y,  in  conformity  with 
section  1547  of  the  Revised  Statutes,  are  vaHd 
and  have  the  force  of  law  when  they  are  not 
inconsistent  with  the  statute  under  which  they 
are  issued  by  the  Secretary.  (25  Op.  Atty. 
Gen.,  270,  274.  (See  below,  "Proceedings  of 
courts-martial.") 

Must  be  consistent  with  law. — "The 
authority  of  the  Secretary  to  issue  orders,  regu- 
lations and  instructions,  with  the  approval  of 
the  President,  in  reference  to  matters  connected 
with  the  naval  establishment,  is  subject  to  the 
condition,  necessarily  implied,  that  they  must 
be  consistent  with  the  statutes  which  have  been 
enacted  by  Congress  in  reference  to  the  Navy. 
He  may,  with  the  approval  of  the  President, 
establish  regulations  in  execution  of,  or  supple- 
mental to,  but  not  in  conflict  with,  the  statutes 
defining  his  powers  or  conferring  rights  upon 
others.  The  contrary  has  never  been  held  by 
this  court. "  (U.  S.  v.  Symonds,  120  U.  S.,  46, 
49;  Glavey  v.  U.  S.,  182  U.  S.,  595,  605.) 

The  orders,  regulations,  and  instructions 
issued  by  the  Secretary  of  the  Navy  under 
Revised  Statutes,  section  1547,  must  be  in 
accordance  with  law  and  upon  a  subject  which 
the  law  has  not  determined,  adjusted,  or  de- 
fined. A  regulation  of  an  executive  depart- 
ment must  conform  to  the  law,  if  a  law  exists 
upon  the  subject  of  the  regulation.  The  Secre- 
tary of  the  Navy  can  not  change  the  character 
of  an  officer's  ser-vice  from  sea  service  to  shore 
service  by  simply  ordering  that  it  be  so  regard- 
ed; sea  service  is  defined  ])y  section  1571,  Re- 
vised Statutes,  and  the  final  construction  of  the 
statute  is  vested  in  the  judiciary.  (Symonds 
V.  U.  S.,  21  Ct.  Cls.,  148;  affirmed,  120  U.  S.,  46.) 

For  other  cases,  see  specific  rulings  noted 
below. 


Detachment  of  officers  from  Marine 
Headquarters. — Article  4141  of  the  Navy 
Regulations,  approved  May  14,  1913,  is  in  con- 
travention of  existing  statutes  and  therefore  in- 
valid, in  that  it  permits  officers  of  the  staff 
departments  of  the  Marine  Corps  to  be  detached 
permanently  from  the  headquarters  of  the 
commandant,  and  gives  the  power  to  the  com- 
mandant of  the  corps  to  impose  duties  upon 
these  staff  officers  inconsistent  with  their  staff 
functions.     (30  Op.  Atty.  Gen.,  234.) 

Regulations  of  a  legislative  character. — 

Prior  to  the  act  of  July  14,  1862  (now  section 
1547,  R.  S.),  it  was  held  by  the  Attorney 
General  that  a  code  of  regulations  issued  by  the 
President,  February  15,  1853,  for  the  govern- 
ment of  the  naval  ser\dce,  entitled  "System  of 
Orders  and  Instructions,"  was  without  legal 
validity;  that  said  system  was  neither  more  nor 
less  than  rules  for  the  government  and  regu- 
lation of  the  naval  forces,  "that  precise  tiling 
which  the  Constitution  empowers  Congress  to 
make;"  and  that,  even  if  it  be  conceded, 
"what  might  well  be  questioned,"  that  Con- 
gress can  delegate  to  others  the  power  to  make 
a  law,  said  system  could  not  lay  claim  to 
legality  by  virtue  of  any  power  delegated  to 
the  President  by  Congress,  as  there  was  no  act 
of  Congress  authorizing  same  to  be  issued  or 
thereafter  adopting  same.  (6  Op.  Atty.  Gen., 
10,  reviewing  liistory  of  Navy  Regulations.) 

It  is  not  intended  to  say  that  the  President, 
as  Commander  in  Chief  of  the  land  and  naval 
forces,  has  not  some  power  to  issue  directions 
and  orders;  so  also  has  a  commodore  in  command 
of  a  squadron,  or  a  general  in  the  field.  But 
such  orders  and  directions,  when  issued  by  the 
President,  must  be  within  the  range  of  purely 
executive  or  administrative  action.  Cases  may 
be  supposed  in  which  it  is  not  easy  to  draw  the 
line  between  wliat  is  legislative  and  what  is 
executive  or  administrative;  and  so  it  is  in  re- 
gard to  every  such  question  of  the  distinction 
of  powers.    (6  Op.  Atty.  Gen.,  10.) 


784 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1547. 


The  Army  Regulationg  derive  their  force 
from  the  power  of  the  President  as  Commander 
in  Chief,  and  are  binding  upon  all  within  the 
sphere  of  his  legal  and  constitutional  authority. 
(Kurtz  V.  Moffitt,  115  U.  S.,  487,  503.) 

The  act  of  1862  (now  sec.  1547,  R.  S.),  was 
only  intended  to  recognize  the  power  of  the 
President  to  alter  regulations  which  he  was 
originally  competent  to  adopt  and  promulgate 
without  express  authority  of  Congress;  no  just 
rule  of  construction  would  authorize  gi\'ing  to 
this  provision  the  force  and  effect  of  a  general 
delegation  of  legislative  authority  to  the  ex- 
ecutive at  his  pleasure  to  pass  upon  and  regu- 
late subjects  which  were  in  their  own  nature 
exclusively  subjects  of  legislative  action  and 
cognizance,  or  which  Congress  had  previously 
fixed  by  law  and  which  the  regulations  thereby 
recognized  had  not  undertaken  to  modify  or 
alter.     (13  Op.  Atty.  Gen.,  10.) 

Regulations  specifically  adopted  by  Con- 
gress can  not  be  altered  by  President. — 
Congress,  by  acts  of  August  5,  1854,  chapter 
268,  section  4,  and  March  3,  1859,  chapter  76, 
section  2,  specifically  adopted  certain  orders  of 
the  Secretary  of  the  Navy,  dated  August  31, 
1846,  May  27,  1847,  and  January  13,  1857,  upon 
relative  rank ;  this  fact  gave  to  such  orders  the 
character  of  legislative  acts;  they  thereby 
ceased  to  be  orders  or  regulations  of  the  execu- 
tive and  were  incorporated  into  the  statute 
law  as  laws  of  Congress.  Accordingly,  the  act 
of  July  14, 1862,  section  5  (now  sec.  1547,  R.  S.), 
which  authorized  the  Secretary  of  the  Navy, 
with  the  approval  of  the  President,  to  adopt 
alterations  in  "orders,  regulations,  and  in- 
structions" theretofore  issued  by  the  Secretary 
of  the  Navy,  can  not  properly  be  treated  as 
comprehending  or  embracing  the  above-men- 
tioned orders,  which  had  been  previously  recog- 
nized and  established  by  legislation  as  regu- 
lations of  Congress  on  the  subject  of  the  relative 
rank  of  staff  officers  of  the  Navy.  (13  Op.  Atty. 
Gen.,  10,  overruling  10  Op.  Atty.  Gen.,  413, 
noted  below.) 

The  executive  has  no  power,  without  express 
authority  of  law,  to  fix  the  relative  rank  of  the 
line  and  staff  officers  of  the  Navy.  However, 
the  fifth  section  of  the  act  of  July  14,  1862,  re- 
cognizing the  orders  of  the  Secretary  of  the 
Navy  theretofore  issued  as  regulations  of  the 
Navy  Department  and  authorizing  alterations 
thereof,  confers  onthe  Secretary  of  the  Navy, 
with  the  approbation  of  the  President,  power 
to  alter  any  orders  issued  by  him  before  the 
passage  of  the  act  fixing  the  relative  rank  of  the 
line  and  staff  officers  of  the  Navy.  If,  there- 
fore, the  head  of  the  Navy  Department,  as  the 
Minister  of  the  President,  has  at  any  former 
period,  by  any  order  or  regulation,  fixed  the 
relative  rank  of  the  line  and  staff  officers  of  the 
Navy,  it  is  competent  for  him,  with  the  appro- 
bation of  the  President,  under  authority  of  the 
provision  cited,  to  make  such  alterations  in 
such  order  or  regulation  as  in  his  judgment  the 
good  of  the  service  may  require.  (10  Op. 
Atty.  Gen.,  413;  overruled  by  13  Op.  Atty. 
Gen.,  10,  noted  above.) 

Certain  regulations  issued  by  the  Secretary  of 
the  Navy,  with  the  approbation  of  the  Presi- 
dent, on  13  March,  1863,  establishing  and  in- 


creasing the  relative  rank  of  the  staff  officers 
of  the  Navy,  and  modifying  previous  orders 
which  had  been  specifically  adopted  by  Con- 
gress, held  not  founded  upon  valid  authority  of 
law.    (13  Op.  Atty.  Gen.,  10.) 

Precedence  of  line  and  staff  officers. — 
Article  21  of  the  Navy  Regulations,  1893  (art. 
1009,  Navy  Regs.,  1913),  fixing  the  order  in 
which  officers  of  the  line  and  different  staff 
corps  shall  take  precedence  when  of  the  same 
date,  is  \'iithin  the  authority  conferred  upon  the 
Secretary  of  the  Navy,  by  Revised  Statutes, 
section  1547.     (21  Op.  Atty.  Gen.,  46.) 

Rank  of  aids  to  rear  admirals. — Section 
1547,  Revised  Statutes,  provides  that  the  Sec- 
retary of  the  Navy,  -w-ith  the  approval  of  the 
President,  can  make  necessary  regulations  for 
the  Navy,  and  when  the  law  provides  for  ad- 
ditional pay  of  aids  to  admirals  it  would  seem 
both  proper  and  necessary  for  the  regulations 
to  provide  under  what  circumstances  such  aids 
should  be  appointed  and  what  should  be  their 
rank.  There  is  no  other  branch  of  the  Govern- 
ment service  interested  in  the  rank  of  officers 
to  be  detailed  for  such  service,  and  there  is  no 
law  prohibiting  the  Secretary  of  the  Navy, 
with  the  approval  of  the  President,  from  de- 
termining that  matter.  When  such  regula- 
tions are  promulgated,  they  have  the  force  of 
law.  (Jones  v.  U.  S.,  49  Ct.  Cls.,  16;  compare 
Knox  V.  U.  S.,  52  Ct.  Cls.,  22,  28.) 

Command  of  hospital  ships. — The  Navy 
Regulations,  edition  of  1909,  article  37,_  para- 
graph 2,  approved  by  the  President,  provide  for 
the  command  of  hospital  ships  by  a  medical 
officer  not  below  the  grade  of  surgeon.  The 
law  provides  that  such  regulations,  when  so 
approved,  shall  be  the  regulations  of  the  Navy, 
and  they  have  the  force  of  law  when  not  in- 
consistent therewith.  The  orders  _  preceding 
this  regulation  and  the  regulation  itself  were 
issued  and  adopted  in  accordance  with  law. 
The  regulation  referred  to  may  at  any  time  be 
changed  or  modified  by  the  President  or  by  the 
Secretary  of  the  Navy  with  the  approval  of  the 
President.     (27  Op.  Atty.  Gen.,  571.) 

Proceedings  of  covirts-martial. — The  Or- 
ders, Regulations,  and  Instructions  for  the 
Administration  of  Law  and  Justice  in  the 
United  States  Navy,  issued  by  the  Secretary 
of  the  Navy  under  authority  of  the  President 
in  1870,  were  recognized  and  given  the  sanc- 
tion of  law  by  section  1547  of  the  Revised  Sta- 
tutes, passed  since  the  adoption  of  such  regula- 
tions. Accordingly,  section  127  of  the  said 
regulations,  providing  that  "when  the  offense 
is  a  disorder  or  neglect  not  specially  provided 
for,  it  should  be  charged  as  'scandalous  conduct 
tending  to  the  destruction  of  good  morals,  '"is 
a  valid  regulation  conferring  upon  a  court- 
martial  jurisdiction  over  a  charge  of  scanda- 
lous conduct  tending  to  the  destruction  of 
good  morals,  and  it  is  not  important  to  inquire 
in  a  specific  case  whether  such  charge  should 
be  considered  as  made  under  the  concluding 
words  of  the  first  clause  of  article  8,  section 
1624,  Revised  Statutes,  punishing  "profane 
swearing,  falsehood,  drunkenness,  gambling, 
theft,  or  any  other  scandalous  conduct  tending 
to  the  destruction  of  good  morals, "  or  under 
article    22,    section    16ii4,    Revised    Statutes, 


785 


Sec.  1547. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


punishing  "all  offenses  committed  by  persons 
belonging  to  the  Navy  ^vhi^•h  are  not  specified 
in  the  foregoing  articles, "  for  in  either  \iew  it 
Bhould,  under  the  regulations  of  1870,  recog- 
nized and  sanctioned  by  Congress,  be  charged 
as  '  'scandalous  c-onduct  tending  to  the  destruc- 
tion of  good  morals. "  (Smith  v.  \\Tiitney,  116 
U.S.,  167.) 

"Regulations  for  the  administration  of  law 
and  justice, "  issued  April  15,  1870,  which  pro- 
\'ided  for  revision  by  naval  courts-martial  of 
their  proceedings  and  sentence  when  directed 
by  the  convening  authority,  were  authorized 
by  section  1547,  Revised  Statutes,  and  have  the 
force  of  law.     (Ex  parte  Reed,  100  U.  S.,  13.) 

Congress  in  estaljlishing  courts-martial  pro- 
vided that  the  Secretary  of  the  Navy  is  author- 
ized to  establish ' '  regulations  of  the  Navj% ' '  with 
the  approval  of  the  President  (12  Stat.,  565; 
R.  S.,  sec.  1547).  Pursuant  to  this  authority, 
"Regulations  for  the  Administration  of  La,w 
and  Justice"  were  issued  on  the  15th  of  April, 
1870.  It  has  been  held  that  such  regulations 
have  the  force  of  law.  (Gratiot  v.  U.  S.,  4 
How.,  80;  Ex  parte  Reed,  100  U.  S.,  22.)  Thus 
the  legislative  power  is  not  exercised  in  detail, 
but  a  court  is  established  in  pursuance  of  the 
power  conferred  upon  Congress  and  the  Secre- 
tary of  the  Navy  is  clothed  with  the  power  of 
making  regulations  to  control  the  court.  This 
is  one  of  the  many  instances  in  which  it  is 
essential  for  the  operations  of  a  great  govern- 
ment that  matters  of  detail  be  intrusted  by  the 
iegislati\'e  department  to  executive  officers 
for  the  piu-pose  of  giAing  effect  to  legislative 
acts.     (21  Op.  Atty.  Gen.,  430,  441.) 

Manual  for  the  Govemtnent  of  Naval 
Prisons. — Articles  81  of  the  Manual  for  the 
government  of  Naval  Prisons,  issued  by  the 
Judge  Advocate  General  of  the  Navy  with  the 
approval  of  the  Secretary  of  the  Navy,  pur- 
suant to  authority  contained  in  article  901, 
Navy  Regulations,  1913,  and  article  604,  Naval 
Instructions,  1913,  is  a  regulation  authorized  by 
section  1547,  Revised  Statutes.  (24  Comp. 
Dec,  740,  757.  Compare  25  Op.  Atty.  Gen., 
270,  275,  noted  below.) 

Checkages  of  pay  for  lost  property, — 
See  note  to  section  1549,  Re\'ised  Statutes. 

Refund  of  enlistment  bounty  on  dis- 
charge.— Where  an  act  of  Congress  "author- 
ized "  the  Secretary  of  the  Navy  to  furnish  as  a 
bounty  to  apprentices  enlisting  in  the  Navy 
when  first  received  on  board  of  a  training  ship 
an  outfit  of  clothing  not  to  exceed  in  value  the 
sum  of  $45  (act  Mar.  1,  1889,  25  Stat.,  781),  the 
language,  although  permissive  in  form,  is  to  be 
construed  as  imposing  upon  the  Secretary  of 
the  Na\y  an  imperative  oliligation  and  not 
merely  discretionary  power.  Congress  un- 
doubtedly did  not  intend  that  the  Secretary 
of  the  Na^y  should  have  such  discretionary 
power  with  respect  to  furnishing  the  bounty 
authorized  by  the  act  as  would  enable  him  to 
furnish  it  in  one  case  and  in  another  case 
decline  to  furnish  it.  Neither  does  the  law 
contain  any  language  from  which  the  infer- 
ence could  be  drawn  that  apprentices  dis- 
charged within  one  year  after  date  of  enlist- 
ment shall  refund  any  part  of  the  clothing 
outfit  previously  furnished  them  as  a  bounty. 


Accordingly,  held  that  r^ulationa  issued  by 
the  Secretary  of  the  Navy,  July  1,  1901,  are 
inconsistent  with  law  and  void  in  so  far  as  they 
require  a  refund  of  the  bounty  or  any  portion 
of  it  in  case  an  apprentice  is  discharged  within 
one  year  after  his  enlistment  for  disability  not 
incm-red  in  the  line  of  duty.  (25  Op.  Atty. 
Gen.,  270;  see  also  11  Comp.  Dec,  193.  Note.— 
Refund  of  enlistment  bounty  in  case  of  dis- 
charge was  afterwards  specifically  provided 
for  by  statute;  see  act  June  29,  1906,  34  Stat., 
556;  and  Mar.  2,  1907,  34  Stat.,  1176.) 

Duties  of  disbursing  ofl3.cers. — Regula- 
tions made  by  the  Commissioners  of  the  Na\y 
in  1817,  with  the  consent  of  the  Secretary  of 
the  Navy  and  approved  by  the  President  of 
the  United  States,  were  binding  upon  pursers 
in  the  Navy,  who  were  thereby  required  to 
make  disbursements  in  accordance  therewith, 
without  other  compensation  than  their  regular 
pay  as  purser,  unless  when  the  disbursements 
were  made  there  was  an  agreement  or  under- 
standing between  them  and  the  Secretary  of 
the  Navy  or  other  officer  competent  to  make 
such  an  agreement  that  they  should  ^ecei^-e 
compensation  therefor  in  addition  to  their 
regular  and  fixed  pay  as  purser.  (U.  S.  v. 
Fitzgerald,  25  Fed.  Cas.  No.  15107;  see  also 
notes  to  sees.  161,  285,  and  419,  R.  S.) 

Disposition  of  effects  of  deceased  per- 
sons.—The  Navy  Regulations  on  the  subject 
of  payments  to  administrators  and  under 
wills  are  to  be  construed  as  binding  only  upon 
the  officers  and  seamen  of  the  Navy;  they  are 
not  applicable  to  nor  binding  upon  the  account- 
ing officers  of  the  Treasury  Department  in  the 
settlement  of  na^-al  accounts,  and  it  was  not 
intended  that  they  should  control  those  offi- 
cers.    (16  Op.  Atty.  Gen.,  494,  498.) 

The  character  of  all  the  regulations  in  ques- 
tion indicates  that  they  were  not  intended  to 
affect  any  persons  except  those  subject  to  the 
orders  of  the  Secretary  of  the  Navy.  Unless 
they  are  thus  construed,  it  would  seem  that 
a  power  to  legislate  was  assiuned  independently 
of  the  Federal  and  State  law.  For  the  pur- 
pose of  protecting  the  rights  of  heirs  and  rela- 
tives of  deceased  seamen,  the  regulations  of 
the  Navy  may  well  require  that  if  the  disburs- 
ing officer  pays  the  money  to  an  administrator 
he  shall  estal^lish  facts  additional  to  those 
which  he  would  ordinarilv  be  required  to  do. 
(16  Op.  Atty.  Gen.,  494,  496.) 

See  below,  ""^Ti ether  regulations  are  bind- 
ing upon  accounting  officers  of  the  Treasury." 

"Whether  regulations  are  binding  upon 
accounting  officers  of  the  Treasury. — The 
Navy  Regulations  are  published  by  the  Secre- 
tary of  the  Navy  "for  the  government  of  all 
persons  attached  to  the  naval  service."  This 
statement  accurately  indicates  the  objects  and 
the  limits  of  the  naval  regulations,  which  are 
for  the  government  of  persons  attached  to  the 
naval  8er\dce  in  the  conduct  of  their  several 
duties,  and  the  -sdolation  of  which  would  sub- 
ject such  persons  to  official  rebuke.  It  would 
be  going  too  far  to  hold  that  because  the  Sec- 
retary of  the  Navy,  with  the  approval  of  the 
President,  has  a  quasi  legislative  power  in  pre- 
scribing the  mode  in  which  the  subordinates  of 
the  naval   department  should    perform   their 


786 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1549. 


duties,  and  the  rules  by  which  they  should  be 
governed,  he  could  also  prescribe  a  rule  which 
would  control  the  action  of  the  accounting  offi- 
cers upon  the  same  subject.  (16  Op.  Atty. 
Gen.,  494,  495.) 

While  in  general  terms  it  is  often  said  that  the 
Army  and  Navy  regulations  have  the  force  and 
effect  of  law,  this  can  only  be  properly  so  where 
we  are  dealixig  with  a  person  or  suljject  matter 
over  which  the  Secretary  has  official  control 
(citing  Gratiot  v.  U.  S.,  4  How.,  117).  Nor  can 
it  be  said  that  the  fact  that  Congress  has  adopted 
the  regulations  gives  them  the  force  of  law  in 
the  general  sense.  It  gives  them  the  force  of 
law  only  so  far  as  they  assume  to  control  those 
to  whom  the  regulations  were  applicable. 
Were  it  otherwise,  it  would  be  necessary  to 
hold  that,  inasmuch  as  the  Secretary  with  the 
authority  of  the  President  has  a  right  to  alter 
these  regulations.  Congress  has  parted  with  its 
legislative  power  so  far  as  the  Na\y  is  concerned, 
and  has  conferred  it  upon  the  Secretary  of  the 
Na\^.  That  which  it  has  conferred  upon  the 
Secretary  of  the  Navy  is  not  any  portion  of  its 
general  power  of  legislation,  but  only  the  right 
to  make  appropriate  regulations  for  the  per- 
formance of  their  duties  by  those  whom  Con- 
gress has  placed  under  his  official  control.  (16 
Op.  Atty.  Gen.,  494,  497.) 

The  decisions  of  the  Comptroller  of  the  Treas- 
ury, declaring  invalid  article  3991,  Na\-y  Regu- 
lations 1913,  limiting  the  responsibility  of  pay 
officers  of  shore  stations  for  errors  in  pay  rolls, 
are  not  conclusive  upon  the  Navy  Depart- 
ment; said  regulation  is  valid,  at  least  to  the 
extent  of  protecting  a  pay  officer  who,  in  good 
faith,  pays  items  that  on  the  face  of  the  roll  are 
apparently  legal  expenditures.  The  regula- 
tion in  question,  as  a  valid  order  of  the  head  of 
an  executive  department,  has  binding  force 
upon  the  accounting  officers  of  the  Govern- 
ment.    (30  Op.  Atty.  Gen.,  376.) 

See  above,  "Disposition  of  effects  of  de- 
ceased persons." 

Regiilations  not  approved  by  the  Pres- 
ident.— Regulations  issued  by  the  Secretary 
of  the  Navy  may  safely  be  held  invalid  where 
it  does  not  appear  that  they  ever  received  the 
approval  of  the  President,  as  required  by  sec- 
tion 1.547,  Revised  Statutes,  for  ail  regulations 
issued  since  July  14,  1862.  Such  approval,  in 
terms  prescribed  by  the  law,  is  manifestly  es- 
sential to  give  validity  to  regulations  as  having 
the  force  of  law.  (25  Op.  Atty.  Gen.,  270,  275; 
but  see  sec.  161,  R.  S.,  and  note  thereto;  and 
compare  24  Comp.  Dec,  740,757,  noted  above.) 

Under  Revised  Statutes,  section  1547,  the 
orders,  regulations,  and  instructions  issued  by 
the  Secretary  of  the  Navy  are  presumed  to  be 
issued  with  the  approval  of  the  President,  and 


this  presumption  extends  to  an  order  requiring 
employees  to  render  service  on  Satmday  after- 
noons with  no  other  compensation  than  such 
as  shall  be  due  by  reason  of  the  extension  of  the 
hoiu-s  of  service.  (Adams  t'.  U.  S.,  42  Ct.  Cls., 
192.) 

Regulations  enter  into  contract  of  navy- 
yard  employees. — The  work  in  navy  yards 
and  naval  stations  is  under  the  control  and 
direction  of  the  head  of  the  Navy  Department, 
and  the  employment  and  pay  of  per  diem  em- 
ployees at  such  yards  and  stations,  paid  from 
lump-sum  appropriations,  are  also  under  the 
direction  and  control  of  the  head  of  the  de- 
partment. Under  these  circumstances^  regu- 
lations are  important  and  necessary  instru- 
ments in  the  administration  of  the  duties  in- 
volved in  these  cases,  and  the  regulation  often 
operates  as  a  contract  or  enters  into  the  con- 
tracts of  employment.  This  is  the  effect  of 
such  regulations  where  they  do  not  contravene 
some  law.  (21  Comp.  Dec,  337,  holding  that 
per  diem  employees  of  the  Government  at 
navy  yards  and  stations  which  are  not  in  the 
United  States  are  entitled  to  be  paid  on  holi- 
days as  provided  by  Na\'y  Regulations.) 

Effect  of  regulations  upon  interpre- 
tation of  later  statutes. — The  naval  regu- 
lations are  recognized  by  Congress  in  section 
1547,  Revised  Statutes,  and  those  in  force  when 
a  particular  statute  was  passed  may  properly 
be  considered  in  construing  it,  because  the  pre- 
sumption is  that  Congress  enacted  the  law  with 
the  knowledge  of  and  in  the  light  of  such  regu- 
lations.    (19  Op.  Atty.  Gen.,  589,  591.) 

Regiilations  superseded  by  subsequent 
statutes. — The  Navy  Regulations  of  1818, 
prescribing  the  official  duties  of  pursers  and 
Na\-y  agents,  were  repealed  by  the  act  of  Au- 
gust 26,  1842  (5  Stat.,  535),  requiring  purchases 
of  supplies  for  the  use  of  the  Navy  to  be  made 
with  the  public  moneys  appropriated  for  the 
purpose,  under  such  directions  and  regulations 
as  the  executive  may  prescribe,  the  effect  of 
which  law  was  to  require  new  "directions  and 
regulations"  in  the  place  of  the  old  regidations. 
(Strongi-.  U.  S.,  6Wall.,788.) 

Inasmuch  as  Congress  has  authorized  the 
successive  heads  of  the  Na\^  Department  to 
govern  the  Naval  Academy  by  regulations,  and 
has  interfered  therewith  only,  so  to  say,  desul- 
torily, the  rule  of  statutory  construction,  which 
forbids  any  disturbance  of  previously  existing 
statutory  or  common  law  hj  ^  ^^w  statute  fur- 
ther than  is  necessary  to  its  reasonable  opera- 
tion, must  1)6  applied  so  as  to  prevent  any  un- 
necessary disturbance  of  previously  existing 
regulations  by  a  subsequent  statute.  (15  Op. 
Atty.  Gen.,  637.) 


Sec.  1548.  [Copy  to  be  furnished  to  officers.]  The  Secretary  of  the  Navy 
shall  cause  each  commissioned  or  warrant  officer  of  the  Navy,  on  his  entry  into 
the  service,  to  be  furnished  with  a  copy  of  the  regulations  and  general  orders  of 
the  Navy  Department  then  in  force,  and  thereafter  wath  a  copy  of  aU  such  as 
may  be  issued.— (17  July,  1862,  c.  204,  s.  19,  v.  12,  p.  610.) 

Sec.  1549.  [Regulations  of  supplies.]  It  shall  be  the  duty  of  the  President 
to  make,  subject  to  the  provisions  of  law  concerning  supplies,  such  regulations  for 

787 


Sec.  1551. 


Pi.  2.  REVISED  STATUTES. 


The  Navy. 


tho  ])urchjise,  preservation,  and  disposition  of  all  articles,  stores,  and  supplies  for 
persons  in  the  Navy,  as  may  be  necessary  for  the  safe  and  economical  adminis- 
tration of  that  branch  of  the  pubhc  service. —  (26  Aug.,  1842,  c.  206,  s.  2,  v. 
5,  p.  535;  3  Mar.,  1847,  c.  48,  s.  1,  v.  9,  p.  171.) 

Exchanfre  of  worn-out  t>7)e\vriting  and  com- 
puting machines  for  the  naval  establish- 
ment as  part  of  the  purchase  price  of  new 
ones,  was  authorized  bv  act  of  August  22, 
1912  (37  Stat.,  346). 
Loan  of  medical  and  other  equipment  to  the 
American  Red  Cross  for  instruction  and 
practice,  for  the  purpose  of  rendering  aid 
to  the  Army  and  Navy  in  war,  was  author- 
ized by  resolution  of  MavS^  1914  (38  Stat., 
771),  amended  by  resolution  of  May  18, 
1916  (39  Stat.,  164). 
Settlement  of  property  accounts  is  provided  for 
by  act  of  March  29,  1894  (28  Stat.,  47);  with 
reference  to  jurisdiction  of  Comptroller  of 
the  Treasury  over  property  accounts,  see 
note  to  section  236,  Revised  Statutes,  un- 
der "III.  Limitations  upon  jurisdiction." 
Ship's  stores  in  the  Navy  may  charge  profit  on 
sales,  such  profit  to  be  expended  for  the 
amusement,  comfort,  and  contentment  of 
the  enlisted  force.     (Act  June  24,  1910,  36 
Stat.,  619.) 
See  note  to  sections  161,  355, 418, 1540,  and  1541, 
Revised    Statutes,    concerning    purchase, 
sale,  exchange,  etc.,  of  property  belonging 
to  the  Navy. 
Checkages  of  pay  for  lost  property. — If 
a  regulation  shall  be  made  providing  that  the 
%villful  or  negligent  damage  or  destruction  of 
public  property  by  persons  in  the  Navy  be 
charged  against  the  pay  of  the  individual  re- 
sponsible for  such  damage  or  destruction,  as- 
certained by  a  board  of  survey  or  other  fair 
method,  then  such  amount  or  amounts  may  law- 
fully be  so  charged.     (15  Comp.  Dec,  491.) 

In  an  opinion  of  the  Judge  Advocate  General, 
December  8,  1909  (file  3980-452:2),  it  was  con- 
cluded that,  in  the  absence  of  statutory  au- 
thority, there  is  no  warrant  of  law  for  checking 
the  pay  of  an  officer  or  enlisted  man  for  loss  or 


damage  to  Government  property,  notmth- 
standing  the  contrary  decision  of  the  Comp- 
troller of  the  Treasury,  above  noted.  Pursuant 
to  said  opinion,  article  1260  (5),  published  in 
Changes  in  Navy  Regulations  Circular  No.  4  of 
June  25,  1909,  was  revoked  by  the  President 
upon  recommendation  of  the  Secretaiy  of  the 
Navy.  (Naval  Dig.,  1916,  p.  447,  citing  S.  &  A. 
ind.,  May  10,  1916,  No.  186-362  and  file  26834- 
594;  see  also  Smith  v.  Jackson,  241  Fed.  Rep., 
747,  246  U.  S.,  388  as  to  jurisdiction  of  account- 
ing officers.) 

There  is  no  authority  of  law  under  which  an 
officer  of  the  Navy,  who  is  not  required  to  ren- 
der return  for  property  in  his  possession,  can 
be  checked  for  the  value  of  missing  property. 
In  this  connection  attention  is  in\'ited  to  the 
fact  that  there  is  no  legal  obstacle  in  the  way  of 
such  officer's  depositing  to  the  credit  of  the 
United  States,  if  he  is  willing  to  do  so,  a  sum 
sufficient  to  cover  the  cost  of  missing  property 
for  which  he  has  been  held  responsible. 
(Naval  Dig.,  1916,  p.  447,  citing  file  18140-35, 
July  25,  1916.) 

There  is  no  authority  of  law  to  check  the  pay 
of  an  officer  or  enlisted  man  for  the  loss  of  a 
library  book  (file  2657-04,  Apr.  5,  1904;  3980- 
452:2,  Dec.  8,  1909);  or  for  loss  or  damage  to 
public  property  (14  J.  A.  G.,  230);  or  for  a  boat 
taken  ^\ithout  permission  and  lost  (file  170-04, 
Jan  21,  1904);  or  for  careless  enlistments  by  re- 
cruiting officers  of  the  Navy  (file  5942-34);  or 
for  windows  broken  through  carelessness  (file 
18140-16,  Feb.  27,  1912).  (Naval  Dig.,  1916 
p.  448.) 

The  practice  of  having  enlisted  men  attached 
to  a  receiving  ship  checked  in  their  pay  ac- 
counts for  the  loss  or  destruction  of  Govern- 
ment property,  upon  their  request,  in  lieu  of 
being  punished  for  the  offense  involved  therein, 
is  wholly 'unauthorized  by  law.  (Naval  Dig., 
1916,  p.  448,  citing  file  3773-149,  Dec.  26,  1912.) 


Sec.  1550.  [Appointment  of  persons  to  disburse  money  on  foreign  stations.] 
No  person  shall  be  employed  or  continued  abroad,  to  receive  and  pay  money 
for  the  use  of  the  naval  service  on  foreign  stations,  whether  under  contract  or 
otherwise,  who  has  not  been,  or  shall  not  be,  appointed  by  and  with  the  advice 
and  consent  of  the  Senate. —  (17  June,  1844,  c.  107,  s.  4,  v.  5,  p.  703.) 


The  senior  officer  present  may  make  an  acting 
appointment  of  any  fit  person  to  perform 
the  duties  of  paymaster  or  assistant  pay- 
master on  foreign  stations  when  such  office 


becomes  vacant  by  death  or  otherwise, 
until  another  paymaster  or  assistant  pay- 
master shall  report  for  duty.  (Sees.  1381 
and  1564,  R.  S.) 


Sec.  1551.  [Insane  of  the  Navy.]  The  Secretary  of  the  Navy  may  cause 
persons  in  the  naval  service  or  Marine  Corps,  who  become  insane  while  in  the 
service,  to  be  placed  in  such  hospital  for  the  insane  as,  in  his  opinion,  will  be 
most  convenient  and  best  calculated  to  promise  a  restoration  of  reason.  And 
he  may  pay  to  any  such  hospital,  other  than  the  Government  Hospital  for 
the  Insane  in  the  District  of  Columbia,  the  pay  which  may  irom  time  to  time 
be  due  to  such  insane  person,  and  he  may,  in  addition  thereto,  pay  to  such 

788 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1553. 


institution,  from  the  annual  appropriation  for  the  naval  service,  under  the  head 
of  contingent  enumerated,  any  deficiency  of  a  reasonable  expense,  not  exceed- 
ing one  hundred  dollars  per  annum. —  (3  Aug.,  1848,  c.  121,  s.  13,  v.  9,  p.  272. 

13,  p.  348.) 


2  July,  1864,  c.  210,  s.  2,  v 

Amendment  to  this  section  was  made  by  act  of 
July   1,    1916,   section    1  (39   Stat.,   309), 
which  provided  that  "after  the  pas^ge  of 
this  act  the  Government  Hospital  for  the 
Insane  shall  be  known  and  designated  as 
Saint  Elizabeths  Hospital." 
For  general  provisions  relating  to  the  Govern- 
ment Hospital  for  the  Insane,  see  sections 
4838-4858,  Revised  Statutes. 
With  reference  to  habeas  corpus  proceedings  in 
cases  of  persons  in  the  naval  service  com- 
mitted to  the  Government  Hospital  for  the 
Insane,  see  note  to  section  761,  Revised 
Statutes,  under  "Appeal  from  decision  of 
court  or  judge  granting  writ,"  and  "Arrest 
of  petitioner  after  discharge." 
Allotments  of  pay. — A  warrant  officer  of  the 
Navy  confined  in  the  Government  Hospital  for 
the  Insane  is  not  authorized  by  law  or  regu- 
lations to  register  an  allotment,  even  though 
mentally  competent  to  take  such  action,  for  the 
reason  that  he  is  ashore  within  the  United 
States  (Navy  Regs.,  1909,  art.  1094);  the  wife 
of  such  an  officer  desiring  to  secure  a  portion 
of  his  pay  should  have  a  guardian  or  committee 
appointed  to  take  charge  of  his  affairs.     (File 
8528-327:1;  see  also  8528-111;  compare  Navy 
Regs.,  1913,  art.  4472.) 

The  Secretary  of  the  Navy  has  no  power  to 
increase  a  naval  officer's  allotment  of  pay  in 
favor  of  his  wife  Avithout  his  consent,  and  if  the 
Secretary  makes  such  increase  Avithout  his 
consent,  he  mav  recover  the  illesal  excess. 
(Melville  v.  U.  S.,  23  Ct.  Cls.,  74.)  ' 

Where  an  enlisted  man  of  the  naval  service 
is  a  patient  at  the  Government  Hospital  for  the 
Insane,  and  it  has  been  certified  by  the  naval 
medical  officer  at,  and  the  superintendent  of, 
said  hospital  that  he  is  mentally  competent  to 
receive  and  dispose  of  his  pay,  he  is  legally 
competent  to  make  an  allotment  or  assignment 
of  wages  in  accordance  with  Navy  Regulations, 
1913,  articles  4471  and  4472.  (File  10060-67, 
Aug.  18,  1915;  see  also  8528-340;  1802-04;  8528- 
399,  Oct.  29,  1913;  C.  M.  O.  29,  1915.) 

See  also  section  1430,  Revised  Statutes,  and 
note  thereto. 

Corafort  and  welfare  of  patients. — Where 
certain  articles  are  essential  for  the  comfort  and 
welfare  of  general  court-martial  prisoners  con- 
fined in  the  Government  Hospital  for  the  In- 


sane, the  naval  medical  officer  is  authorized  to 
forward  a  certificate,  setting  forth  the  articles 
desired,  to  the  commandant  of  the  navy  yard, 
Washington,  D.  C.;  the  commandant  has 
authority  to  approve  the  purchase  of  such 
articles,  not  to  exceed  .|3  per  month,  the  amount 
excepted  by  the  court-martial  sentence  for 
"necessary  prison  expenses";  if  there  is  no 
money  due  such  prisoners,  these  articles  will  be 
charged  to  ' '  Pay,  Miscellaneous, ' '  in  accordance 
with  the  act  of  February  16,  1909,  section  3 
(35  Stat.,  622).  Naval  patients  not  under- 
going punishment,  when  competent  to  sign  pay 
receipts  for  such  articles,  will  be  allowed  to 
draw  the  same  from  pay  due,  and  the  command- 
ant is  authorized  to  approve  such  purchases 
upon  certification  of  the  naval  medical  officer 
that  such  patients  are  competent  to  sign  pay 
receipts  for  nominal  amounts  necessary  to  the 
comfort  and  welfare  of  such  patients.  There  is 
no  authority  whereby  patients  not  undergoing 
sentence,  and  who  are  legally  incompetent  to 
sign  such  pay  receipts,  can  draw  such  sums  un- 
less a  guardian  or  committee  has  been  appoint- 
ed. (C.  M.  O.  22-1915,  citing  file  10060-61, 
June  3,  1915;  see  also  8528-410,  June  4,  1914; 
10060-14,  Jan.  30,  1911;  10060-46,  June  12, 
1914.) 

Payment  of  service  pensions  due  in- 
mates.— Allowances  under  sections  4756  and 
4757,  Revised  Statutes,  which  accrue  to  in- 
mates of  Saint  Elizabeths  Hospital,  should  be 
paid  to  the  superintendent  of  the  hospital,  not- 
withstanding such  inmates  are  represented  by 
a  legal  guarclian  or  committee.  (31  Op.  Atty. 
Gen.,  354.) 

Jurisdiction  of  civil  authorities. — The 
only  provision  for  a  judicial  inquiry  into  the 
mental  status  of  any  persons,  previous  to  their 
admission  to  Saint  Elizabeths  Hospital,  is  in 
the  case  of  indigent  persons  residing  in  the 
District  of  Columbia.  An  enlisted  man  who 
was  discharged  from  the  Army  because  of  in- 
sanity was  properly  admitted  to  said  hospital 
upon  the  order  of  the  Secretary  of  the  Treasury 
as  an  insane  patient  of  the  Bureau  of  War  Risk 
Insurance,  and  as  he  does  not  come  within  the 
class  of  indigent  persons  residing  in  the  District 
of  Columbia,  no  judicial  inquiry  prior  to  his 
admission  is  necessary.  (31  Op.  Atty.  Gen., 
431.) 


Sec.  1552.     [Coal  depots.     Repealed.] 

This  section  provided  as  follows: 
"Sec.  1552.  The  Secretary  of  the  Navy  may 
establish,  at  such  places  as  he  may  deem  neces- 
sary, suitable  depots  of  coal,  and  other  fuel,  for 


the  supply  of  steamships  of  war." — (31  Aug., 
1842,  c.  279,  s.  7,  v.  5,  p.  577.) 
It  was  repealed  by  act  of  March  4,  1913  (37 

Stat.,  898). 


Sec.  1653.     [Enticing  persons  to  desert.     Repealed.] 


This  section  provided  as  follows: 

"Sec.  1553.  Any  person  who  shall  entice  or 
procure,  or  attempt  to  entice  or  procure,  any  sea- 
man or  other  person  in  the  naval  service  of  the 
United  States,  or  who  has  been  recruited  for 
such  service,  to  desert  therefrom,  or  who  shall 


in  anywise  aid  or  assist  any  such  searnan  or 
other  person  in  deserting,  or  in  attempting  to 
desert  from  such  service,  or  who  shall  harbor, 
conceal,  protect,  or  in  aiiywise  assist  any  such 
seaman  or  other  person  who  may  have  deserted 
from  said  service,  knowing  him  to  have  deserted 


789 


Sec.  1555. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


therefrom,  or  who  shall  refuse  to  give  up  and 
deliver  such  person  on  the  demand  of  an  officer 
authorized  to  receive  him,  shall  be  punished  by 
imprisonment  for  not  less  than  six  months  nor 
more  than  three  years,  and  by  fine  of  not  more 
than  two  thousand  dollars,  to  be  enforced  in  any 
court  of  the  United  States  haWng  jurisdic- 
tion."—(1  July,  18G4,  c.  201,  y.  13,  p.  343.) 

It  ■wa^  repealed  by  the  Criminal  Code,  act 
of  March  4,  1909,  section  341  (35  Stat.,  1153), 
and  was  reenacted,  mth  amendments,  by  sec- 
tion 42  of  the  same  act  (35  Stat.,  1097),  which 
also  reenacted,  with  amendments,  section 
5455,  Revised  Statutes. 

Punishment  by  court-martial  of  per- 
sons in  the  naval  service  who  receive  or  en- 
tertain deserters  is  pro\'ided  for  by  section  1624, 
RcAdsed  Statutes,  article  8,  paragraph  22. 

Attorney  not  guilty  because  of  advice 
given  client. — An  attorney  employed  by  the 
father  of  a  soldier,  16  years  old,  who  had  en- 
listed without  the  father's  consent,  to  obtain 
his  release  on  the  ground  of  nonage,  by  advis- 
ing the  soldier,  who  was  then  a  deserter,  to  re- 
main away  h-om  the  authorities  until  notified, 
held,  not  to  have  "harbored,  concealed  or 
assisted"  the  deserter  within  Criminal  Code, 
section  42,  which  requires,  to  constitute  the 
offense,  some  positive,  physical  act,  done  with 
knowledge  and  intent  to  aid  in  the  wrongful 
purpose  of  the  deserter.  (Firpo  v.  U.  S.,  261 
Fed.  Rep.,  850.) 

To  "conceal,"  as  used  in  Criminal  Code, 
section  42,  providing  for  punishment  of  anyone 
who  shall  harbor,  conceal,  protect,  or  assist  any 
soldier  who  has  deserted  from  service,  means  to 
hide,  secrete,  or  keep  out  of  sight.  (Firpo  v. 
U.  S.,  261  Fed.  Rep.,  850.) 

To  "harbor,"  as  used  in  Criminal  Code, 
section  42,  providing  for  punishment  of  anyone 
who  shall  harbor,  conceal,  protect,  or  assist  any 
soldier  who  has  deserted  from  ser\dce,  means  to 
lodge,  to  care  for,  after  secreting  the  deserter. 
(Firpo  V.  U.  S.,  261  Fed.  Rep.,  850.) 

"Where  enlistment  not  completed. — 
Under  the  act  of  Congress  of  March  2,  1855, 
section  11  (10  Stat.,  628),  making  it  an  offense 
to  entice  a  seaman  who  has  enlisted  in  the  naval 
service  of  the  United  States  to  desert  there- 
from, held,  that  one  who  had  previously  been 
in  the  Navy,  and  whose  term  of  service  had 
expired,  and  who  came  to  the  United  States 
naval  rendezvous  in  Boston  to  reenlist,  and 
passed  through  all  the  necessary  steps  there, 


was  exarnined  and  passed  by  the  surgeon  and 
his  descriptive  and  transcript  lists  made  out 
and  given  to  the  commanding  officer  of  the 
rendezvous,  and  who  took  the  oath  required  by 
act  of  Congress,  signed  the  Navj^  shipping  arti- 
cles which  stated,  among  other  things,  his 
"term  of  enUstment"  and  "date  of  enlistment," 
and  received  orders  to  go  on  board  the  receiving 
ship  and  for  advance  pay  and  bounty,  and 
everything  necessary  to  his  enlistment,  so  far 
as  the  officer  in  charge  of  recruiting  at  the  naval 
rendezvous  was  concerned,  was  completely 
performed  according  to  the  instructions  of  the 
Navy  Department;  and  who  went  to  the  re- 
ceiving ship,  but  when  he  reached  it  was  so 
intoxicated  that  the  commanding  officer,  in 
pursuance  of  instructions  issued  by  the  Na\'y 
Department,  declined  to  receive  him  until  he 
became  sober;  and  who  then  left  the  ship,  say- 
ing that  he  would  report  in  the  morning;  arid 
before  the  morning  was  induced  by  the  de- 
fendant not  to  return  to  the  vessel  but  to  enlist 
in  the  Army,  was  not  enlisted  within  the  mean- 
ing of  the  aforesaid  act,  he  not  having  been 
examined  by  the  surgeon  on  the  receiving  ship 
or  accepted  there,  and  not  naving  his  name 
entered  on  the  books  of  the  ship,  and  it  appear- 
ing that  no  recruit  coming  from  any  naval 
rendezvous  and  who  had  passed  through  all 
the  forms  there  was  ever  allowed  an  advance 
or  any  pay,  or  had  his  name  recorded  on  the 
paymaster's  books,  until  he  had  passed  the 
surgeon  on  board  the  receiving  ship.  (U.  S. 
V.  Thompson,  28  Fed.  Cas.  No.  16491;  see  also 
Tyler -y.  Pomeroy,  8  Allen  (Mass.)  480;  and  see 
note  to  sec.  1418,  R.  S.,  under  "When  enlist- 
ment complete.") 

Desertion  in  consequence  of  induce- 
ments made  prior  to  enlistraent. — Where 
the  prisoner,  in  order  to  induce  one  H.  to 
enlist,  made  representations  to  him  as  to  the 
means  and  facilities  of  deserting,  and  after  he 
had  enlisted  received  the  whole  of  his  bounty 
money,  and  at  the  times  when  he  made  such 
representations  and  received  the  money  he 
believed  they  would  be  likely  to  cause  H.  to 
desert,  and  they  did  cause  him  to  desert,  the 
prisoner  may  be  deemed  to  have  procured  or 
enticed  H.  to  desert  within  the  meaning  of  the 
statute  of_1812,  chapter  14,  section  17  (2  Stat., 
673).  It  is  not  necessary,  in  order  to  warrant  a 
conxdction,  that  the  prisoner  should  have 
wished  or  intended  that  H.  should  desert. 
(U.  S.  •;;  Clark,  25  Fed.  Cas.  No.  14808.) 


Sec.  1554.  [Captured  flags.]     The  Secretary  of  the  Navy  shall  cause  to  be 

collectecl  and  transmitted  to  him,  at  the  seat  of  Government  of  the  United 

States,  all  such  flags,  standards,  and  colors  as  shall  have  been  or  may  hereafter 

be  taken  by  the  Navy  from  enemies. —  (18  April,  1814,  c.  78,  s.  1,  v.  3,  p.  133.) 

upon  the  same  original  enactment  as  this 
section. 


Substantially  this  same  provision  is  contained 
in  section  428,   Revised   Statutes,    based 


Sec.  1565.  [Preservation  of,  in  some  public  place.]  All  flags,  standards, 
and  colors  of  the  description  mentioned  in  the  foregoing  section,  which  are 
now  in  the  possession  of  the  Navy  Department,  or  may  hereafter  be  transmitted 
to  it,  shall  be  delivered  to  the  President,  for  the  purpose  of  being,  under  his 
direction, preserved  and  displayed  in  such  public  place  as  he  may  deem  proper. — 
(18  April,  1814,  c.  78,  s.  1,  v.  3,  p.  133.) 

790 


CHAPTER  EIGHT. 

PAY,  EMOLUMENTS,  AND  ALLOWANCES. 


Sec. 

1556.  Pay   of  commissioned   and    warrant  of- 

ficers, midshipmen,  mates,  secretaries 
and  clerks,  nurses,  and  Naval  Reserve 
Force. 

1557.  Furlough  pay. 

1558.  Allowances. 

1559.  Volunteer  ser\'ice. 

1560.  Commencement  of  pay;  original  entry. 

1561.  Commencement    of    pay    of    promoted 

officers. 

1562.  In  cases  of  delayed  examination. 

1563.  Advances  to  persons  on  distant  stations. 

1564.  Persons  acting  as  pavTnaster. 

1565.  Chiefs  of  bureau. 

1566.  Mileage  and  traveling  expenses. 

1567.  Officers  serving  as  storekeepers   on    for- 

eign stations. 

1568.  Civilians,   storekeepers    on    foreign  sta- 

tions. 

1569.  Pay  of  enlisted  men. 

1570.  Additional  pay  for  serving  as  firemen. 

1571.  Sea  service. 

1572.  Detention  beyond  term  of  enlistment. 

1573.  Honorable  discharge  gratuity  and   con- 

tinuous ser%-ice  pay. 


Sec. 

1574.  Crews  of  wrecked  or  lost  vessels. 

1575.  Crews  of  vessels  taken  by  an  enemy. 

1576.  Assignment  of  wages. 

1577.  Rations  of  midshipmen. 

1578.  Rations  of  other  officers. 

1579.  When  rations  not  allowed. 

1580.  Navy  ration,  constituents  of. 

1581.  Substitutions  in  rations,  and  extra  al- 

lowance for  night  watches. 

1582.  Short  allowance. 

1583.  Rations  stopped  for  the  sick. 

1584.  Additional  ration. 

1585.  Ration  commutation. 

1586.  Medicines  and  medical  attendance. 

1587.  Funeral  expenses. 

1588.  Pay  of  retired  officers. 

1589.  Retired  rear  admirals. 

1590.  Third  assistant  engineers. 

1591.  Pay  not  increased  by  promotion. 

1592.  Pay  on  active  duty. 

1593.  Officers  retired  on  furlough  pay. 

1594.  Transfer  from  furlough  to  retired  pay  list. 

1595.  Rations. 


[See  Notes  at  End  of  Section  1556  for  Laws  Amendatory  of  that  Section,  in  Force 
March  4,  1921,  Relating  to  the  Pay  of  Commissioned  and  Warrant  Officers,  Mid- 
shipmen, Mates,  Secretaries  and  Clerks,  Nurses,  and  Naval  Reserve  Force; 
Additional  Pay  for  Special  Duty,  Etc.] 


Sec.  1556.  [Pay  of  commissioned  and  warrant  officers,  midshipmen,  mates, 
secretaries  and  clerks,  nurses,  and  Naval  Reserve  Force.]  The  commissioned 
officers  and  warrant  officers  on  tlie  active  list  of  the  Navy  of  the  United  States, 
and  the  petty  officers,  seamen,  ordinary  seamen,  firemen,  coal-heavers,  and 
employes  in  the  Navy,  shall  be  entitled  to  receive  annual  pay  at  the  rates 
herein  stated  after  their  respective  designations: — (20  Feb.,  1874,  c.  35,  v.  18, 
p.  17.) 

[2]  The  Admiral,  thirteen  thousand  doUars. —  (15  July,  1870,  c.  295,  s. 
3,  V.  16,  p.  330.) 

[3]  The  Vice-Admiral,  when  at  sea,  nine  thousand  doUars;  on  shore  duty, 
eight  thousand  dollars;  on  leave,  or  waiting  orders,  six  thousand  dollars. 

[4]  Rear-admirals,  when  at  sea,  six  thousand  dollars;  on  shore  duty,  five 
thousand  doUars;  on  leave,  or  waiting  orders,  four  thousand  doUars. 

[5]  Commodores,  when  at  sea,  five  thousand  doUars;  on  shore  duty,  four 
thousand  doUars;  on  leave,  or  waiting  orders,  three  thousand  doUars, 

[6]  Captains,  when  at  sea,  four  thousand  five  hundred  doUars;  on  shore 
duty,  three  thousand  five  hundred  doUars;  on  leave,  or  waiting  orders,  two 
thousand  eight  hundred  doUars. 

[7]  Commanders,  when  at  sea,  three  thousand  five  hundred  doUars;  on 
shore  duty,  tliree  thousand  doUars;  on  leave,  or  waiting  orders,  two  tliou- 
sand  tliree  himdred  doUars. 

791 


Sec.  1556.  Ft.  2.  REVISED  STATUTES.  The  Navy. 

[S]  Lioutenant-commandors,  (lurinw  the  first  four  years  after  date  of  com- 
mission, when  at  sea,  two  thousand  eight  hundred  dollars;  on  shore  duty, 
two  thousand  four  hundred  dollars;  on  leave,  or  waiting  orders,  two  thou- 
sand dollars;  after  four  years  from  such  date,  when  at  sea,  three  thousand 
dollars;  on  shore  duty,  two  thousand  six  hundred  dollars;  on  leave,  or  waiting 
orders,  two  thousand  two  hundred  dollars. 

[9]  Lieutenants,  during  the  first  five  years  after  date  of  commission,  when 
at  sea,  two  thousand  four  hundred  dollars;  on  shore  duty,  two  thousand 
dollars;  on  leave,  or  waiting  orders,  one  thousand  six  hundred  dollars;  after 
five  years  from  such  date,  when  at  sea,  two  thousand  six  hundred  dollars; 
on  shore  duty,  two  thousand  two  hundred  dollars;  on  leave,  or  waiting  orders, 
one  thousand  eight  hundred  dollars. 

[10]  Masters,  during  the  first  five  years  after  date  of  commission,  when 
at  sea,  one  thousand  eight  hundred  dollars;  on  shore  duty,  one  thousand 
five  hundred  dollars;  on  leave,  or  waiting  orders,  one  thousand  two  hundred 
dollars;  after, five  years  from  such  date,  when  at  sea,  two  thousand  dollars; 
on  shore  duty,  one  thousand  seven  hundred  dollars;  on  leave,  or  waiting 
orders,  one  thousand  four  hundred  dollars. 

[11]  Ensigns,  during  the  first  five  years  after  date  of  commission,  when  at 
sea,  one  thousand  two  hundred  dollars;  on  shore  duty,  one  thousand  dollars; 
on  leave,  or  waiting  orders,  eight  hundred  dollars;  after  five  years  from  such 
date,  when  at  sea,  one  thousand  four  hundred  dollars;  on  shore  duty,  one 
thousand  two  hundred  dollars;  on  leave,  or  waiting  orders,  one  thousand 
dollars. 

[12]  IVIidshipmen,  after  graduation,  when  at  sea,  one  thousand  dollars;  on 
shore  duty,  eight  hundred  dollars;  on  leave,  or  waiting  orders,  six  hundred 
dollars. 

[13]  Cadet  midshipmen,  five  hundred  dollars. — (16  July,  1862,  c.  183,  s.  15, 
V.  12,  p.  586.     15  July,  1870,  c.  295,  s.  12,  v.  16,  p.  334.) 

[14]  Mates,  when  at  sea,  nine  hundred  dollars;  on  shore  duty,  seven  hun- 
di'ed  dollars;  on  leave,  or  waiting  orders,  five  hundred  dollars. —  (15  July, 
1870,  c.  295,  s.  3,  v.  16,  p.  330.) 

[15]  Fleet-surgeons,  fleet-paymasters,  and  fleet-engineers,  lour  thousand 
four  hundred  dollars.— (15  July,  1870,  c.  295,  s.  3,  v.  16,  p.  330.) 

[16]  Medical  directors,  medical  inspectors,  pay  directors,  and  pay  inspect- 
ors, and  chief  engineer  having  the  same  rank  as  pay  director  and  pay  inspector, 
when  on  duty  at  sea,  four  thousand  four  hundred  dollars. 

When  not  at  sea,  the  same  as  surgeons  and  paymasters,  respectively. — 
(15  July,  1870,  c.  295,  s.  3,  v.  16,  p.  331.  3  Mar.,  1871,  c.  117,  ss.  5,  6,  v."  16, 
pp.  535,  536.     3  Mar.,  1873,  c.  230,  s.  1,  v.  17,  p.  555.) 

[17]  Surgeons,  paymasters,  and  chief  engineers  who  have  the  same  rank 
with  paymasters,  during  the  first  five  years  after  date  of  commission,  when 
at  sea,  two  thousand  eight  hundred  dollars;  on  shore  duty,  two  thousand 
four  hundred  dollars;  on  leave,  or  waiting  orders,  two  thousand  dollars;  dur- 
ing the  second  five  years  after  such  date,  when  at  sea,  three  thousand  two 
hundred  dollars;  on  shore  duty,  two  thousand  eight  hundred  dollars; 
on  leave,  or  waiting  orders,  two  thousand  four  hundred  dollars;  during  the 
third  five  years  after  such  date,  when  at  sea,  three  thousand  five  hundred 

792 


The  Navy.  Pt.  2.  REVISED  STATUTES.  Sec.  1556. 

dollars;  on  shore  duty,  tlu'ee  thousand  two  hundred  dollars;  on  leave,  or 
waiting  orders,  two  thousand  six  hundred  dollars;  during  the  fourth  five 
years  after  such  date,  when  at  sea,  three  thousand  seven  hundred  dollars; 
on  shore  duty,  thi-ee  thousand  six  hundred  dollars;  on  leave,  or  waiting  orders, 
two  thousand  eight  hundred  dollars;  after  twenty  years  from  such  date,  when 
at  sea,  four  thousand  two  hundred  dollars;  on  shore  duty,  four  thousand 
dollars;  on  leave,  or  waiting  orders,  three  thousand  dollars. —  (15  July,  1870, 
c.  295,  s.  3,  V.  16,  p.  330.) 

[IS]  Passed  assistant  surgeons,  passed  assistant  paymasters,  and  first 
assistant  engineers,  during  the  first  five  years  after  date  of  appointment,  w^hen 
at  sea,  two  thousand  dollars;  on  shore  duty,  one  thousand  eight  hundred 
dollars;  on  leave,  or  waiting  orders,  one  thousand  five  hundred  dollars;  after 
five  years  from  such  date,  when  at  sea,  two  thousand  two  hundred  dollars; 
on  shore  duty,  two  thousand  dollars;  on  leave,  or  waiting  orders,  one  thousand 
seven  hundred  dollars. 

[19]  Assistant  surgeons,  assistant  paymasters,  and  second  assistant  engi- 
neers, during  the  first  five  years  after  date  of  appointment,  when  at  sea,  one 
thousand  seven  hundred  dollars;  on  shore  duty,  one  thousand  four  hundred 
dollars;  on  leave,  or  waiting  orders,  one  thousand  dollars;  after  five  years 
from  such  date,  when  at  sea,  one  thousand  nine  hundred  dollars;  on  shore 
duty,  one  thousand  six  hundred  dollars;  on  leave,  or  waiting  orders,  one  thou- 
sand two  hundred  dollars. 

[20]  Assistant  surgeons  of  three  years'  service,  who  have  been  found  qual- 
ified for  promotion  by  a  medical  board  of  examiners,  the  pay  of  passed 
assistant  surgeons. —  (3  Mar.,  1871,  c.  117,  s.  5,  v.  16,  p.  535.) 

[21]  Naval  constructors,  during  the  first  five  years  after  date  of  appoint- 
ment, when  on  duty,  three  thousand  two  hundred  dollars;  on  leave,  or  waiting 
orders,  two  thousand  two  hundred  dollars;  diu-ing  the  second  five  years  after 
such  date,  when  on  duty,  three  thousand  four  hundred  dollars;  on  leave,  or 
waiting  orders,  two  thousand  four  hundred  dollars;  during  the  third  five  years 
after  such  date,  when  on  duty,  three  thousand  seven  hundred  dollars;  on  leave, 
or  waiting  orders,  two  thousand  seven  hundred  dollars;  during  the  fourth  five 
years  after  such  date,  when  on  duty,  four  thousand  dollars;  on  leave,  or  waiting 
orders,  three  thousand  dollars;  after  twenty  years  from  such  date,  when  on 
duty,  four  thousand  two  hundred  dollars;  on  leave,  or  waiting  orders,  three 
thousand  two  hundred  dollars.— (15  July,  1870,  c.  295,  s.  3,  v.  16,  p.  331.) 

[22]  Assistant  naval  constructors,  during  the  first  four  years  after  date  of 
appointment,  w^hen  on  duty,  two  thousand  dollars;  on  leave,  or  waiting  orders, 
one  thousand  five  hundred  dollars;  during  the  second  four  years  after  such 
date,  when  on  duty,  two  thousand  two  hundred  dollars;  on  leave,  or  waiting 
orders,  one  thousand  seven  hundred  dollars;  after  eight  years  from  such  date, 
when  on  duty,  two  thousand  six  hundred  dollars;  on  leave,  or  waiting  orders, 
one  thousand  nine  hundred  dollars. 

[23]  Chaplains,  during  the  first  five  years  after  date  of  commission,  when 
at  sea,  two  thousand  five  hundred  dollars;  on  shore  duty,  two  thousand  dollars; 
on  leave,  or  waiting  orders,  one  thousand  six  hundred  dollars;  after  five  years 
from  such  date,  when  at  sea,  two  thousand  eight  hundred  dollars;  on  shore  duty, 

793 


Sec.  1556.  PL  2.  REVISED  STATUTES.  The  Navy. 

two  thousand  tliree  hundred  dollars;  on  leave,  or  waiting  orders,  one  thousand 
nine  hundred  dollars. 

[24]  Professors  of  mathematics  and  civil  engineers,  during  the  first  five 
years  after  date  of  appointment,  when  on  duty,  two  thousand  four  hundred 
dollars;  on  leave,  or  waiting  orders,  one  thousand  five  hundred  dollars;  during 
the  second  five  years  after  such  date,  when  on  duty,  two  thousand  seven 
hundred  dollars;  on  leave,  or  waiting  orders,  one  thousand  eight  hundred 
dollare;  during  the  third  five  years  after  such  date,  when  on  duty,  three 
thousand  dollars;  on  leave,  or  waiting  orders,  two  thousand  one  hundred 
dollars;  after  fifteen  years  from  such  date,  when  on  duty,  three  thousand  five 
himdred  dollare;  on  leave,  or  waiting  orders,  two  thousand  six  hundred  dollars. 

[25]  Boatswains,  gunners,  carpenters,  and  sail-makers,  during  the  first 
three  years  after  date  of  appointment,  when  at  sea,  one  thousand  two  hundred 
dollars;  on  shore  duty,  nine  hundred  dollars;  on  leave,  or  waiting  orders,  seven 
hundred  dollars;  during  the  second  three  years  after  such  date,  when  at  sea, 
one  thousand  three  hundred  dollars;  on  shore  duty,  one  thousand  dollars;  on 
leave,  or  waiting  orders,  eight  hundred  dollars;  during  the  third  three  years 
after  such  date,  when  at  sea,  one  thousand  four  hundred  dollars;  on  shore 
duty,  one  thousand  three  hundred  dollars;  on  leave,  or  waiting  orders,  nine 
hundred  dollars;  during  the  fourth  three  years  after  such  date,  when  at  sea, 
one  thousand  six  hundred  dollars;  on  shore  duty,  one  thousand  three  himdred 
dollars;  on  leave,  or  waiting  orders,  one  thousand  dollars;  after  twelve  years 
from  such  date,  when  at  sea,  one  thousand  eight  hundred  dollars;  on  shore 
duty,  one  thousand  six  hundred  dollars;  on  leave,  or  waiting  orders,  one  thou- 
sand two  hundred  dollars.— (15  July,  1870,  c.  295,  s.  3,  v.  16,  p.  332.) 

[26]  Secretaries  to  the  Admiral  and  the  Vice-Admiral,  each  two  thousand 
five  hundred  dollars. 

Secretaries  to  commanders  of  squadrons,  two  thousand  dollars. 

Secretary  of  the  Naval  Academy,  one  thousand  eight  himdred  dollars. — 
(15  July,  1870,  c.  295,  s.  3,  v.  16,  p.  332.) 

[27]  Clerks  to  commanders  of  squadrons  and  commandei's  of  vessels,  seven 
hundred  and  fifty  dollars.— (15  July,  1870,  c.  295,  s.  3,  v.  16,  p.  332.) 

[28]  First  clerks  to  commandants  of  navy-yards,  one  thousand  five  hun- 
dred dollars. 

Second  clerks  to  commandants  of  navy-yards,  one  thousand  two  hundred 
dollars. 

Clerk  to  commandant  at  navy-yard  at  IVIare  Island,  one  thousand  eight 
hundred  dollars. 

Clerks  to  commandants  of  naval  stations,  one  thousand  five  hundred 
dollars.- (15  July,  1870,  c.  295,  s.  3,  v.  16,  p.  332.) 

[29]  Clerks  to  paymasters  at  navy-yards,  Boston,  New  York,  Pliiladelphia, 
and  Washington,  one  thousand  six  hundred  dollars;  Battery,  Norfolk,  and  Pen- 
sacola,  one  thousand  four  hundred  dollai's;  Mare  Island,  one  thousand  eight 
hundred  dollars. 

Clerks  to  paymasters,  at  other  stations,  one  thousand  three  hundred 
dollars.— (15  July,  1870,  c.  295,  s.  3,  v.  16,  p.  332.) 

[30]  Clerks  to  paymasters  of  receiving  ships  at  Boston,  New  York,  and 
Philadelphia,  one  thousand  six  hundred  dollars;  at  IVIare  Island,  one  thousand 

794 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1556. 


eight  hundred  dollars;  of  other  receiving  ships,  one  thousand  three  hundred 
dollars.— (15  July,  1870,  c.  295,  v.  16,  p.  332.) 

[31]  Clerks  to  paymasters  on  vessels  of  the  first  rate,  one  thousand  three 
hundred  dollars;  on  vessels  of  the  second  rate,  one  thousand  one  hundred 
dollars;  on  vessels  of  the  tliird  rate,  and  supply-vessels  and  store-ships,  one 
thousand  dollars. —  (15  July,  1870,  c.  295,  s.  3,  v.  16,  p.  332.) 

[32]  Clerks  to  fleet  paymasters,  one  thousand  one  hundred  dollars. — 
(15  July,  1870,  c.  295,  v.  16,  p.  332.) 

[33]  Clerks  to  paymasters  at  the  Naval  Academy  and  Naval  Asylum,  one 
thousand  three  hundred  dollars. — (15  July,  1870,  c.  295,  v.  16,  p.  332.) 

[34]  Clerks  to  inspectors  in  charge  of  provisions  and  clothing,  at  navy- 
yards,  Boston,  New  York,  Philadelphia,  and  Washington,  one  thousand  six 
hundred  dollars;  to  inspectors  in  like  charge  at  other  inspections,  one  thousand 
tliree  himdred  dollars.— (16  July,  1862,  c.  183,  s.  15,  v.  12,  p.  586.) 

[35]  Cadet  engineers:  before  final  academic  examination,  five  hundred 
dollars ; 

After  final  academic  examination,  and  imtil  warranted  as  assistant  en- 
gineers, when  on  duty  at  sea,  one  thousand  dollars;  on  shore  duty,  eight 
hundred  dollars;  on  leave,  or  waiting  orders,  six  hundred  dollars. —  (4  July, 
1864,  c.  252,  s.  5,  v.  13,  p.  393.  3  Mar.,  1865,  c.  124,  s.  1,  v.  13,  p.  539.  15 
July,  1870,  c.  295,  v.  16,  p.  332.     15  July,  1870,  c.  295,  s.  3,  v.  16,  p.  330.) 


1. 
2. 
3. 
4. 
5. 
6. 
7. 
8. 
9. 
10. 

11. 
12. 
13. 
14. 
15. 
16. 

17. 
18. 

19. 


20, 
21, 
22, 
23, 


General  rule;  amendatory  statutes. 

Admirals. 

Vice  admirals. 

Rear  admirals. 

Commodores. 

Captains. 

Commanders. 

Lieutenant  commanders. 

Lieutenants. 

Masters  (lieutenants,  junior  grade)  and  act- 
ing lieutenants,  junior  grade. 

Ensigns  and  acting  ensigns. 

Midshipmen. 

Cadet  midshipmen. 

Mates. 

Fleet  officers. 

Medical  directors  and  inspectors;  pay  direc- 
tors and  inspectors. 

Surgeons,  paymasters,  and  chief  engineers. 

Passed  assistant  surgeons,  passed  assistant 
paymasters,  and  first  assistant  engineers. 

Assistant  surgeons,  acting  assistant  surgeons, 
assistant  pa^inasters,  second  assistant  en- 
gineers. 

Assistant  surgeons  qualified  for  promotion. 

Naval  constructors. 

Assistant  naA'al  constructors. 

Chaplains  and  acting  chaplains. 


1.  General  rule;  amendatory  statutes. — 

As  to  definition  of  pay,  allowance,  pay  proper, 
and  emoluments,  see  notes  to  sections  1558  and 
1569,  Re\ised  Statutes. 

The  Na\'y  personnel  act  of  March  3,  1899,  sec- 
tion 13  (30  Stat.,  1007),  pro\-ided  that  "after 
Jime  thirtieth,  eighteen  hundred  and  ninety- 


24.  Professors  of  mathematics,  ci\al  engineers, 

and  assistant  ci\'il  engineers. 

25.  Warrant  officers,  acting  warrant  officers,  and 

commissioned  warrant  officers. 

26.  Secretaries. 

27.  Clerks  to  commanders  of  squadrons,  etc. 

28.  Clerks  to  commandants  of  yards  and  sta- 

tions. 

29.  Clerks  to  paymasters  of  yards  and  stations. 

30.  Clerks  to  paymasters  of  recei\dng  ships, 

etc. 

31.  Clerks  to  paymasters  of  vessels. 

32.  Clerks  to  fleet  paymasters. 

33.  Clerks  to  paymasters  at  asylum  and  acad- 

emy. 

34.  Clerks  to  inspectors. 

35.  Cadet  engineers. 

36.  Dental  Corps;  and  Nurse  Corps  (Female). 

37.  Naval  Reserve  Force. 

38.  Additional  pay  for  special  duty. 

39.  Longe^'ity  pay. 

40.  Absence  from  duty. 

41.  Deductions  for  Naval  Hospital  Fund. 

42.  Stoppage  of  pay,  ser^^.ce  with  contractors. 

43.  Waiver  of  pay. 

44.  Allotments  of  pay. 

45.  Reduction  of  pay. 

46.  Termination  of  pay. 

47.  Pay  computed  on  monthly  basis. 

nine,  commissioned  officers  of  the  line  of  the 
Navy  and  of  the  Medical  and  Pay  Coips  [now 
designated  as  "Supply  Corps,"  act  of  July  11, 
1919,  41  Stat.,  147 J  shall  receive  the  same  pay 
and  allowances,  except  forage,  as  are  or  may 
be  proA-ided  by  or  in  piu^uance  of  law  for  the 
officers  of  corresponding  rank  in  the  Army: 


54641°— 22- 


-51 


795 


Sec,  1556. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


Provided,  That  such  officers  when  on  shore  shall 
receive  the  allowances,  but  fifteen  per  centum 
less  pay  than  wlien  on  sea  duty;  but  this  pro- 
vision shall  not  apply  to  warrant  officers  com- 
missioned inuler  section  twelve  of  this  act: 
Provided  further,  That  when  naval  officers  are 
detailed  ifor  shore  duty  beyond  seas  they  shall 
receive  the  same  pay  and  allowances  as  are  or 
may  be  proAided  by  or  in  pursuance  of  law  for 
officers  of  the  Army  detailed  for  duty  in  similar 
places:  Provided  further,  *  *  *  that  all  officers, 
including  warrant  officers,  who  have  been  or 
may  be  appointed  to  the  NaA'y  from  civil  life 
shall,  on  the  date  of  appointment,  be  credited, 
for  computing  their  pay,  with  fi^e  years'  ser\ice 
*  *  *  :  And  provided  further,  Thai  no  ])YO\'ision 
of  this  act  shall  operate  to  reduce  the  j^resent 
pay  of  any  commissioned  officer  now  in  the 
Na^y ;  and  in  any  case  in  which  the  pay  of  such 
an  officer  would  otherwise  be  reduced  he  shall 
continue  to  receive  pay  according  to  existing 
law:  And  provided  further,  That  nothing  in  this 
act  shall  operate  to  increase  or  reduce  the  pay 
of  any  officer  now  on  the  retired  list  of  the 
Na\'y."  (See  notes  to  said  act  of  Mar.  3,  1899, 
sec.  13,  30  Stat.,  1007.) 

In  the  enactment  of  the  Na\'y  personnel  act 
the  intention  of  Congress  was  CAidently  to  put 
officers  of  the  Army  and  NaAy  on  the  same  foot- 
ing with  respect  to  their  general  pay,  and  to 
make  the  act  prospective  in  its  application  to 
future  legislation,  so  that  if  Congress  should 
thereafter  raise  the  general  pay  of  Army  officers 
as  fixed  by  Revised  Statutes,  section  12G1,  a 
like  increase  should  apply  to  Navy  officers. 
But  Congress  might  thereafter  increase  the  pay 
of  Army  officers  for  serAices  in  particular  places 
and  under  special  circumstances  without  there- 
by intending  such  increase  to  apply  to  naval  of- 
ficers.   (U.  S.  V.  Thomas,  195  U.  S.,  418.) 

The  naval  personnel  act  undertook  to  equal- 
ize the  pay  of  naAal  officers  with  that  of  Army 
officers  of  equal  rank,  as  to  duties  properly  re- 
quired of  a  naval  officer,  but  had  no  operation 
to  proxide  pay  for  services  peculiar  to  the 
Army.    (U.  S.  v.  Crosley,  196  U.  S.,  327.) 

It  was  the  intention  of  Congress,  as  shown  by 
the  fourth  proA-iso  of  section  13  of  the  personnel 
act,  to  leave  undistur]>ed  the  "present  pay" 
of  certain  Na^-y  officers  who  were  already  re- 
cei\T.ng  higher  pay  than  Army  officers  of  the 
same  rank.  (U.  S.  v.  Thomas,  195  U.  S.,  418, 
420.)  However,  this  pro\iso  applied  only  to 
officers  in  the  Navy  at  the  time  the  act  was 
passed,  and  to  the  pay  they  were  then  recei^'ing. 
(Tavlor  v.  U.  S.,  38  Ct.  Cls.,  155,  160.) 

By  act  of  June  7,  1900  (31  Stat.,  697),  section 
13  of  the  personnel  act  was  amended  so  as  to 
pro\ide  "that  nothing  therein  contained  shall 
operate  to  reduce  the  pay  which,  but  for  the 

Eassage  of  said  act,  would  have  been  received 
y  any  commissioned  officer  at  the  time  of  its 
passage  or  thereafter.  "  With  reference  to  this 
amendment,  it  was  judicially  stated:  "The 
original  pro\'iso  to  section  13  excepted  from  the 
pur^-iew  thereof '  the  commissioned  officers  now 
in  the  Navy'  whose  'present  pay'  was  thereby 
reduced ;  while  the  amendment  thereto  extends 
the  exception  so  as  to  apply  to  the  pay  such  of- 
ficers may  receive  thereafter  in  case  of  promo- 
tion to  higher  grades,  and  as  to  such  officers  it 
is  provided  that  they  shall  continue  to  receive 


pay  'according  to  existing  law.'  The  e^ddent 
purpose  of  section  13,  act  of  March  3,  1899,  was 
to  assimilate  the  pay  of  officers  of  the  line  of  the 
Navy  and  of  the  Medical  and  Pay  Corps  to  the 
pay  and  allowances  of  officers  of  corresponding 
rank  in  the  Armv,  reserving,  however,  to  such 
officers  then  in  the  Navy  the  right  to  continue 
to  receiA^e  Na^'y  pay  in  case  the  assimilated  pay 
under  the  act  was  less.  *  *  *  The  amendment 
was  clearly  intended  to  apply  only  to  com- 
missioned officers  in  the  Na\'y  when  the  origi- 
nal act  was  passed  and  to  the  pay  they  might 
receive  thereafter  in  case  of  promotion." 
(Taylor  v.  U.  S.,  38  Ct.  Cls.,  155.)  "That  offi- 
cers in  the  Navy  at  the  time  the  personnel  act 
was  passed  should  not  be  reduced  m  pay  was  an 
ob\-ious  and  just  exception ;  and  to  have  such  an 
exception  preserA-ed  in  all  grades  is  very  obA-i- 
ous  and  just,  which  thereby  prevents  the  pro- 
motion in  grade  from  working  a  diminution  of 
pay."  (Richardson  v.  U.  S.,  38  Ct.  Cls.,  182, 
191;  Jones  v.  U.  S.,  50  Ct.  Cls.,  344,  354.  See 
also  Cromwell  v.  V.  S.,  42  Ct.  Cls.,  432;  Terry  v. 
U.  S.,  39  Ct.  Cls.,  353;  Denig  v.  U.  S.,  37  Ct. 
Cls.,  383;  Littell  v  .U.  S.,  36  Ct.  Cls.,  22.) 

By  act  of  May  13,  1908  (35  Stat.,  127),  it  was 
provided  that  "hereafter  all  commissioned 
officers  of  the  active  list  of  the  Navy  shall  re- 
ceive the  same  pay  and  allowances  according 
to  rank  and  length  of  serAice, ' '  with  the  limita- 
tion ( 35  Stat. ,  128 ) ,  that ' '  the  pay  and  allowances 
of  chaplains  in  the  Navy  shall  in  no  case  ex- 
ceed that  provided  for  lieutenant  commanders,  " 
and  the  sa\dng  clause  that ' '  nothing  herein  shall 
be  construed  so  as  to  reduce  the  pay  or  allow- 
ances now  authorized  by  law  for  any  commis- 
sioned, warrant,  or  appointed  officer  *  *  *  of 
the  active  or  retired  lists  of  the  Na\y  *  *  *." 
The  said  act  fixed  designated  rates  of  pay  for 
chiefs  of  bureaus  in  the  NaAy  Department  and 
for  the  various  ranks  in  the  Navy,  including 
midshipmen,  warrant  officers,  and  mates,  as 
set  forth  below;  and  contained  general  pro^d- 
sions  for  increases  in  pay  on  account  of  lon- 
ge\dty,  sea  duty,  and  foreign  ser\dce,  or  shore 
duty  beyond  seas,  as  set  forth  below. 

The  said  act  of  May  13,  1908,  was  construed 
by  the  Comptroller  of  the  Treasury  as  preserving 
to  officers  then  in  the  Navy  the  right  to  receive 
pay  at  the  rates  they  were  actually  receiving  at 
the  date  of  said  act,  and  also  to  receive  subse- 
quent increases  in  pay  as  authorized  by  prior 
laws  where  their  pay  under  former  laws  would 
be  higher  than  the  rates  of  pav  provided  by  the 
act  of  May  13,  1908.  (15  Comp.  Dec,  174.) 
In  the  specific  case  presented,  the  comptroller 
held  that  a  ci^dl  engineer  who  was  in  the  Navy 
on  May  13, 1908,  and  who  thereafter,  on  August 
29,  1908,  completed  15  years'  ser\dce  "after 
date  of  appointment,"  was  entitled  on  and  after 
the  date  last  mentioned  to  receive  the  rate  of 
pay  provided  by  section  1556,  Revised  Statutes, 
for  civil  engineers  after  15  years  from  date  of 
appointment,  such  pay  being  greater  in  his  case 
than  the  new  rate  of  pay  provided  by  the  act 
of  May  13,  1908,  for  a  civil  engineer  of  his  rank 
and  longevity.  In  support  of  this  conclusion 
the  comptroller  cited  the  saAdng  clause  in  the 
act  of  May  13,  1908,  that  nothing  therein  con- 
tained should  be  construed  so  as  to  reduce  the 
pay  or  allowances  "now  authorized  by  law" 
for  any  commissioned,  warrant,  or  appointed 


796 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1556. 


officer  of  the  active  or  retired  lists  of  the  Nav\^, 
and  stated  that  said  expression  ("'now  author- 
ized by  law")  "means  something  more  than 
the  pay  the  officer  or  man  was  actually  receiving 
at  the  passage  of  the  act." 

In  the  case  of  Jones  v.  United  States  (50  Ct. 
Cls. ,  344),  it  was  judicially  determined  that  the 
saving  clausein  the  act  of  May  13,  1908,  did  not 
entitle  a  pajiuaster'a  clerk  to  the  rate  of  pay 
pro^'ided  by  section  1556,  Revised  Statutes, 
although  higher  than  that  provided  by  the  act 
of  May  13,  1908,  where  said  paymaster's  clerk 
was  appointed  subsequent  to  said  act;  and  that 
said  clause  applied  only  to  persons  who  were 
officers  of  the  Navy  on  the  date  of  the  act,  the 
court  remarking  in  its  opinion  (50  Ct.  Cls.,  355): 
; '  The  reason  for  the  proWsion  against  reduction 
in  the  act  of  1908  is  as  manifest  as  was  the  pro- 
vision against  reduction  in  the  act  of  1899  as 
amended  in  1 900.  Somewhat  different  language 
is  used,  but  the  reason  is  the  same." 

The  said  act  of  May  13,  1908,  was  subse- 
quently construed  by  the  Comptroller  of  the 
Treasury  as  not  entitling  an  officer  of  the  Naw 
to  the  rates  of  pay  provided  by  section  1556, 
Revised  Statutes,  for  an  office  which  was  not 
held  by  him  on  the  date  of  said  act  but  to 
which  he  was  thereafter  promoted,  notwith- 
standing that  he  was  an  officer  of  the  Navy 
when  the  act  of  1908  was  enacted,  and  that  the 
old  rate  of  pay  was  greater  than  that  pro\'ided 
bv  said  act  for  the  same  office.  (Comp.  Dec 
Mar.  8,  1917,  193  S.  and  A.  Memo.,  4172,  file 
26254-2160.)  In  this  case  the  comptroller  spe- 
cifically decided  that  the  saving  clause  in  the 
act  of  1908  applies  to  the  "reduction  of  the  pay 
of  an  officer  as  distinguished  from  that  of  an 
office,"  and  is  "limited  in  its  effect  on  pay  to 
the  pay  of  the  office  which  the  officer  held  on 
Mayl3,  1908,  date  of  its  enactment  *  *  *  . 
For  such  office  the  old  pay,  if  higher,  remains 
the  pay  thereof  during  the  period  of  its  occu- 
pancy by  the  then  incumbent  of  it,  the  taking 
effect  of  "the  new  rate  of  pay  in  such  exceptional 
cases  being,  by  means  of  the  pro^dso,  postponed 
until  that  time." 

By  act  of  August  29,  1916  (39  Stat.,  581\  it 
was  pro\'ided  that  "hereafter  all  commissioned 
officers  of  the  active  list  of  the  Navy  shall  re- 
ceive the  same  pay  and  allowances  according 
to  rank  and  length  of  service,"  omitting  the 
limitation  contained  in  the  act  of  May  13,  1908, 
with  reference  to  the  pay  of  chaplains.  (As  to 
effect  of  this  provision  upon  pay  of  chaplains, 
see  below,  under  "23.  Chaplains.")*  This 
clause  was  followed  by  a  pro^dso  that  it  "shall 
not  be  construed  to  reduce  the  pay  and  allow- 
ances of  commissioned  warrant  officers  as  herein 
authorized."  Also  in  the  same  act  (39  Stat., 
579),  it  was  pro\ided  that  "nothing  contained 
in  this  act  shall  be  construed  to  reduce  the 
rank,  pay,  or  allowances  of  any  officer  of  the 
Navy  or  Marine  Corps  as  now  provided  by 
law." 

By  act  of  May  18,  1920  (41  Stat.,  601),  tem- 
porary increases  in  paj^  were  authorized,  as  set 
forth  below,  for  officers  of  the  Navy  with  the 
rank  of  captain  and  below,  including  warrant 
officers,  such  increases  to  remain  effectiA^e  until 
the  close  of  the  fiscal  year  ending  June  30,  1922, 
with  the  proviso  that  "the  increases  pi-ovided 
in  this  act  shall  not  enter  into  the  computation 


of  the  retired  pay  of  officers  or  enlisted  men 
who  may  be  retired  prior  to  July  1,  1922";  and 
with  the  further  provision  (sec.  14)  "that 
nothing  contained  in  this  act  shall  operate  to 
reduce  the  pay  or  allowances  of  any  officer  or 
enlisted  man  on  the  active  or  retired  list:  Pro- 
vided, That  the  allowances  and  gratuities  now 
authorized  by  existing  law  are  not  changed 
hereby,  except  as  otherwise  specified  in  this 
act." 

By  said  act  of  May  18,  1920,  it  was  further 
pro\'ided  (sec.  13)  "that  a  special  committee, 
to  be  composed  of  five  Members  of  the  Senate, 
to  be  appointed  by  the  Vice  President,  and  five 
Members  of  the  House  of  Representatives,  to  be 
appointed  by  the  Speaker  of  the  House  of  Rep- 
resentatives, shall  make  an  investigation  and 
report  recommendations  to  their  respective 
Houses  not  later  than  the  first  Monday  in 
January,  1922,  relative  to  the  readjustment  of 
the  pay  and  allowances  of  the  commissioned 
and  enlisted  personnel  of  the  several  services 
herein  mentioned . ' ' 

2-3.  Admirals;  Vice  admirals. — See  note 
to  section  1362,  Re\'ised  Statutes. 

By  act  of  May  13, 1908  (35  Stat.,  127),  the  pay 
of  Admiral  was  fixed  at  $13,500  per  annum. 
The  grade  of  "Admiral  of  the  Na\^"  ceased  to 
exist  upon  the  death  of  Admiral  George  Dewey 
on  January  16, 1917.  By  act  of  August  29,  1916 
(39  Stat.,  558),  the  Chief  of  Naval  Operations, 
while  so  ser\-iug,  is  given  the  rank  and  title  of 
Admiral,  with  pay  at  the  rate  of  $10,000  per 
annum.  By  act  of  May  22,  1917,  section  18  (40 
Stat.,  89),  the  President  is  authorized  to  desig- 
nate six  officers  of  the  NaAy  for  the  command 
of  fleets  or  subdiA-isions  thereof,  not  more  than 
three  of  whom  shall  have  the  rank  and  pay  of 
Admiral,  and  the  others  the  rank  and  pay  of 
Vice  Admiral,  '  'from  the  date  of  assuming  such 
command  until  relinquishing  thereof,"  and  by 
the  same  act  it  was  pro\ided  that  "the  pay  of  an 
Admiral  shall  be  $10,000  and  the  pay  of  a  Vice 
Admiral  $9,000  per  annum."  This  act  super- 
seded pro\'isions  on  the  same  subject  contained 
in  the  naval  appropriation  act  of  March  3,  1915. 
(38  Stat.,  941,  942.)  The  latter  act  was  con- 
strued as  not  investing  the  officers  concerned 
with  the  offices  of  Admiral  and  Vice  Admiral, 
but  merely  as  conferring  upon  them,  tempora- 
rily, the  rank  and  pay  of  those  offices,  while 
they  continued  at  the  same  time  to  be  officers 
of  the  grade  permanently  held  by  them  in  the 
Navy.    (21  Comp.  Dec,  840.) 

An  officer  ser\dng  as  commander  in  chief  of  a 
fleet  with  the  rank  of  Admiral,  in  accordance 
with  the  act  of  March  3,  1915,  was  held  not 
entitled,  in  addition  to  the  pay  pi'ovided  in  said 
act  for  rear  admirals  so  ser^^.ng,  to  10  per  centum 
increase  thereof  for  sea  duty  under  the  act  of 
May  13,  1908.     (22  Comp.  Dec,  522.) 

As  to  allowances  see  notes  to  sections  1487, 
1558,  and  1578,  Re\'ised  Statutes. 

Increased  pay  for  longOAity  is  authorized  by 
the  act  of  May  13,  1908  (35  Stat.,  128),  only  for 
officers  "below  the  rank  of  rear  admiral." 

4.  Rear  admirals. — See  notes  to  sections 
1362  and  14G6,  Re\ised  Statutes. 

By  act  of  May  13,  1908  (35  Stat.,  127),  the  pay 
of  "rear  admiral,  first  nine,"  was  fixed  at  $8,000 
per  annimi,  and  "rear  admiral,  second  nine,"  at 


797 


Sec.  1556. 


Pt.^.  REVISED  STATUTES. 


The  Navy. 


$0,000  per  annum.  By  act  of  Au^st  29,  1916 
(;59  Stat.,  577,  578),  it  was  pro\'ided  that  "here- 
after pay  and  allowances  of  officers  in  the  upper 
half  of  the  grade  or  rank  of  roar  admiral,  includ- 
ing the  staff  corps  and  including  staff  officers 
heretofore  permanently  commissioned  with  the 
rank  of  rear  admiral,  shall  be  that  now  allowed 
by  law  for  the  first  nine  rear  admirals,  and  the 
pay  and  allowances  of  officers  in  tlio  lower  half 
of  the  grade  or  rank  of  rear  admiral,  including 
the  staff  corps,  shall  be  that  now  allowed  by 
law  for  the  second  nine  rear  admirals." 

Increased  pay  for  longevity  is  authorized  by 
the  act  of  May  13,  1908  (35  Stat.,  128),  only  for 
officers  "below  the  rank  of  rear  admiral." 

As  to  increased  pay  for  special  ser\'ice,  see 
notes  below  under '  '38.  Additional  pay  for  spe- 
cial duty,"  and  note  to  section  1571,  Revised 
Statutes. 

As  to  allowances  of  rear  admirals,  see  notes  to 
sections  1487,  1558,  and  1578,  Re\ised  Statutes. 

A  commodore  in  the  Navy  who  was  commis- 
sioned as  a  rear  admiral  on  March  3,  1899,  was 
entitled  to  the  sea  pay  of  a  rear  admiral  as  fixed 
by  section  1556,  Reidsed  Statutes,  this  being 
higher  than  the  pay  of  a  rear  admiral  of  the 
lower  half  as  fixed  by  the  Navy  personnel  act  of 
March  3,  1899,  and  the  act  of  June  7,  1900, 
ha\dng  allowed  this  officer  to  receive  the  old 
rate  of  pay  where  higher  than  that  provided  by 
the  act  of  March  3,  1899.  The  pay  of  officers  in 
service  at  the  date  of  the  act  of  March  3,  1899, 
and  the  amendatory  act  of  June  7,  1900,  might 
be  increased  by  the  terms  of  those  statutes,  but 
was  not  to  be  diminished.  (Cromwell  v.  U.  S., 
42  Ct.  Cls.,  432.  See  above,  under  "1.  General 
rule.") 

Section  7  of  the  Navy  personnel  act  of  March 
3,  1899  (30  Stat.,  1004),  provided  that  each  rear 
admiral  embraced  in  the  nine  lower  numbers 
of  that  grade  shall  receive  the  same  pay  and 
allowances  as  then  allowed  a  brigadier  general 
in  the  Army.  Section  13  of  the  same  act  pro- 
Added  that  officers  of  the  line  of  the  Navy  when 
on  shore  shall  receive  the  allowances,  but  15  per 
centum  less  pay  than  when  on  sea  duty.  Held, 
that  this  pro\T-sion  as  to  pay  on  shore  duty 
applied  to  rear  admirals  of  the  lower  nine. 
(Rodgers  v.  U.  S.,  185  U.  S.,  83.) 

Section  1466,  Revised  Statutes,  provides 
that  all  rear  admirals  shall  rank  with  major 
generals  in  the  Army.  Section  13  of  the  Navy 
personnel  act  proAdded  that  officers  of  the  line 
shall  receive  tne  same  pay  as  officers  of  corre- 
sponding rank  in  the  Army;  but  section  7  of  the 
same  act  provided  that  rear  admirals  of  the 
lower  nine  shall  receive  the  same  pay  as  briga- 
dier generals  in  the  Army.  Held,  that  the  pro- 
vision of  section  7  was  to  be  read  as  an  excep- 
tion to  the  pro\ision  in  section  13,  and  accord- 
ingly that  rear  admirals  of  the  lower  nine  were 
not  entitled  to  the  pay  of  major  generals,  the 
corresponding  rank  in  the  Army,  but  only  to 
the  pay  allowed  brigadier  generals.  (Rodgers 
V.  U.  S.,  185  U.  S.,  83.) 

5.  Commodores. — See  note  to  section  1362, 
Revised  Statutes. 

The  naval  appropriation  act  of  May  13,  1908 
(35  Stat.,  127),  provided  that  "hereafter  all 
commissioned  officers  of  the  active  list  of  the 
NaA'y  shall  receive  the  same  pay  and  allow- 
ances, according  to  rank  and  length  of  service, 


and  the  annual  pay  of  each  grade  shall  be  aa 
follows:  •*  *  *  rear  admiral,  second  nine, 
or  commodore,  six  thousand  dollars."  How- 
ever, there  were  no  commodores  on  the  active 
list  at  the  time  of  that  enactment,  and  none 
have  since  been  appointed,  the  grade  of  com- 
modore ha\ing  been  omitted  from  the  active 
list  by  the  Na\y  personnel  act  of  March  3, 1899, 
section  7.  (30  Stat.,  1005.)  In  certain  cases 
officers  have  since  been  retired  with  the  rank 
of  commodore.    (See  note  to  sec.  1362,  R.  S.) 

As  to  pay  of  retired  officers,  see  section  1588, 
RoAdsed  Statutes,  and  note  thereto. 

6.  Captains.— By  act  of  May  13,  1908  (35 
Stat.,  127),  the  pay  of  captain  was  fixed  at 
$4,000  per  annum,  plus  10  per  cent  increase 
thereon  for  each  term  of  five  years'  service  in 
the  Army,  NaA-y,  and  Marine  Corps,  with  the 
limitation  that  "the  total  amount  of  such  in- 
crease for  length  of  ser\dce  shall  in  no  case 
exceed  forty  per  centum  on  the  yearly  pay  of 
the  grade  as  pro\dded  by  law,"  and  that  "the 
annual  pay  of  captain  shall  not  exceed  five 
thousand  dollars  per  annum."  As  to  increased 
pay  over  and  above  the  amount  of  this  limita- 
tion for  special  serA-ice,  see  note  below  under 
"38.  Additional  pay  for  special  duty,"  and  note 
to  section  1571,  Revised  Statutes. 

By  act  of  May  18,  1920  (41  Stat.,  601),  the 
pay  of  captains  in  the  Navy  was  increased  $600 
per  annum  "in  addition  to  all  pay  and  allow- 
ances now  allowed  by  law,"  such  increase  to 
commence  January  1,  1920,  and  to  remain 
effective  "until  the  close  of  the  fiscal  year 
ending  June  30,  1922." 

As  to  allowances  of  captains,  see  notes  to 
sections  1487,  1558,  and  1578,  Revised  Statutes. 

7.  Comznanders. — By  act  of  May  13,  1908 
(35  Stat.,  127),  the  pay  of  commander  was  fixed 
at  $3,500  per  annum,  plus  10  per  cent  increase 
thereon  for  each  term  of  five  years'  service  in 
the  Army,  NaAy,  and  Marine  Corps,  with  the 
limitation  that  "the  total  amount  of  such  in- 
crease for  length  of  ser\dce  shall  in  no  case 
exceed  forty  per  centum  on  the  yearly  pay  of 
the  grade  as  pro\ided  by  law,"  and  that  the 
"annual  pay"  of  commander  shall  not  exceed 
$4,500  per  annum.  As  to  increased  pay  over 
and  above  the  amount  of  this  limitation  for 
special  service,  see  note  below  under  "38. 
Additional  pay  for  special  duty,"  and  note  to 
section  1571,  Revised  Statutes. 

By  act  of  May  18,  1920  (41  Stat.,  601),  the 
pay  of  commanders  in  the  Navy  was  increased 
$600  per  annum,  "in  addition  to  all  pay  and 
allowances  now  allowed  by  law,"  such  increase 
to  commence  January  1,  1920,  and  to  remain 
effective  "until  the  close  of  the  fiscal  year 
ending  June  30,  1922." 

As  to  allowances  of  commanders,  see  notes  to 
sections  1487,  1558,  and  1578,  Revised  Statutes. 

8.  Lieutenant  commanders. — By  act  of 
May  13,  1908  (35  Stat.,  127),  the  pay  of  lieu- 
tenant commanders  was  fixed  at  $3,000  per 
annum,  plus  10  per  cent  increase  thereon  for 
each  term  of  five  years'  service  in  the  Army, 
Navy,  and  Marine  Corps,  with  the  limitation 
that  "the  total  amount  of  such  increase  for 
length  of  service  shall  in  no  case  exceed  forty 
per  centum  on  the  yearly  pay  of  the  grade  as 
pro\dded  by  law,"  and  that  the  "annual  pay" 
of    lieutenant    commander    shall    not    exceed 


798 


The  Navy. 


Pt.2.  REVISED  STATUTES. 


Sec.  1556. 


S4,000  per  annum.  As  to  increased  pay  over 
and  above  the  amount  of  this  limitation  for 
special  service,  see  note  below  under  "38.  Ad- 
ditional pay  for  special  duty,"  and  note  to 
section  1571,  Re\ased  Statutes. 

By  act  of  May  18,  1920  (41  Stat,  601,  602), 
the  pay  of  lieutenant  commanders  in  the  Na\"y 
was  increased  $840  per  annum  ' '  in  addition  to 
all  pay  and  allowances  now  allowed  by  law," 
such  increase  to  commence  January  i,  1920, 
and  to  remain  effective  "until  the  close  of  the 
fiscal  year  ending  June  30,  1922." 

As  to  allowances  of  lieutenant  commanders, 
see  notes  to  sections  1487,  1558,  and  1578,  Re- 
A-ised  Statutes. 

9.  Lieutenants. — By  act  of  May  13,  1908 
(35  Stat.,  127),  the  pay  of  lieutenants  was  fixed 
at  $2,400  per  annum,  plus  10  per  cent  increase 
thereon  for  each  term  of  fi^'e  years'  serA-ice  in 
the  Army,  Navy,  and  Marine  Corps,  with  the 
limitation  that  "the  total  amount  of  such  in- 
crease for  length  of  serAdce  shall  in  no  case 
exceed  forty  per  centum  on  the  yearly  pay  of 
the  gi-ade  as  pro\'ided  by  law. ' '  As  to  increased 
pay  for  special  service,  see  note  below  under 
"38.  Additional  pay  for  special  duty,"  and  note 
to  section  1571,  ReAdsed  Statutes. 

By  act  of  May  18,  1920  (41  Stat.,  602),  the 
pay  of  lieutenants  in  the  NaAy  was  increased 
$720  per  annum,  "in  addition  to  all  pay  and 
allowances  now  allowed  bylaw,"  such  increase 
to  commence  January  1,  1920,  and  to  remain 
effective  "until  the  close  of  the  fiscal  year 
ending  June  30,  1922." 

As  to  allowances  of  Lieutenants,  see  notes  to 
sections  1487,  1558,  and  1578,  Re\ised  Statutes. 

10.  Masters  [lieutenants  (junior  grade)] 
and  acting  lieutenants  (junior  grade). 
The  grade  of  master  as  part  of  the  active  Ust  of 
the  line  was  aboUshed,  and  the  grade  of  lieu- 
tenant (junior  gi-ade)  created,  bv  act  of  March 
3,  1883  (22  Stat.,  472),  which  "proAdded  that 
' '  the  masters  now  on  the  list  shall  constitute  a 
junior  grade  of,  and  be  commissioned  as,  lieu- 
tenants, having  the  same  rank  and  pay  as  now 
pro\ided  by  law  for  masters."  This  had  the 
effect  of  changing  the  title  "master"  to  "lieu- 
tenant (junior  grade)."  (See  note  to  sec. 
1362,  R.  S.) 

By  act  of  May  13,  1908  (35  Stat.,  127),  the 
pay  of  Lieutenants  (junior  gi"ade)  was  fixed  at 
$2,000  per  annum,  plus  10  per  cent  increase 
thereon  for  each  term  of  five  years'  servdce  in 
the  Army,  Navy,  and  MarineCorps,  with  the 
limitation  that  "the  total  amount  of  such  in- 
crease for  length  of  ser^-ice  shall  in  no  case 
exceed  forty  per  centum  on  the  yearly  pay  of 
the  grade  as  pro\dded  by  law."  As  to  increased 
pay  for  special  service,  see  note  below  under 
"38.  Additional  pay  for  special  duty,"  and  note 
to  section  1571,  ReAosed  Statutes. 

By  act  of  May  18,  1920  (41  Stat.,  602),  the 
pay  of  Ueutenanta  (junior  grade)  in  the  Navy- 
was  increased  $600  per  annum,  "in  addition  to 
all  pay  and  allowances  now  allowed  by  law," 
such  increase  to  commence  Januarj^  1,  1920, 
and  to  remain  effective  "until  the  close  of  the 
fiscal  year  ending  June  30,  1922." 

By  act  of  August  29,  1916  (39  Stat.,  583), 

E revision  was  made  for  appointment  of  acting 
eutenants  (junior  grade)  for  aeronautic  duties 
only,  and  by  the  same  act  special  proAdsion 


was  made  for  the  pay  of  officers  detailed  to  duty 
with  aircraft  invohdng  actual  flying.  (See  be- 
low, under  "38.  Additional  pay  for  special 
duty.") 

As  to  allowances  of  lieutenants  (junior  grade), 
see  notes  to  sections  1487,  1558,  and  1578,  Re- 
^dsed  Statutes. 

1 1 .  Ensigns  and  acting  ensig^ns. — By  act 
of  May  13,  1908  (35  Stat.,  127,  128),  the  pay  of 
ensigns  was  fixed  at  $1,700  per  annum,  plus 
10  per  cent  increase  thereon  for  each  term  of 
five  years'  service  in  the  Army,  Navy,  and 
Marine  Corps,  with  the  limitation  that  "the 
total  amount  of  such  increase  for  length  of  serv- 
ice shall  in  no  case  exceed  forty  per  centum  on 
the  yearly  pay  of  the  grade  as  provided  by  law.  " 
As  to  increased  pay  for  special  service,  see  note 
below  imder  "38.  Additional  pay  for  special 
duty, "  and  note  to  section  1571,  Revised 
Statutes. 

By  act  of  May  18, 1920  (41  Stat.,  602),  the  pay 
of  ensigns  in  the  Navy  was  increased  $420  per 
annum,  "in  addition  to  all  pay  and  allow- 
ances now  allowed  by  law, "  such  increase  to 
commence  January  1,  1920,  and  to  reuiain 
effective  "until  the  close  of  the  fiscal  vear  end- 
ing June  30,  1922. " 

As  to  allowances  of  ensigns,  see  notes  to  sec- 
tions 1487,  1558,  and  1578,  Re\dsed  Statutes. 

By  act  of  August  29,  1916  (39  Stat.,  580,  583, 
585),  proAdsion  was  made  for  the  appointment 
of  acting  ensigns  for  engineering  duties  only  and 
for  aeronautic  duties  only.  The  same  act  (39 
Stat.,  581)  provided  that  all  commissioned 
officers  of  the  active  list  shall  receive  the  same 
pay  and  allowances  according  to  rank  and 
length  of  ser\dce  and  made  special  provision 
for  the  pay  of  officers  detailed  to  duty  A\dth 
aircraft  invohdng  actual  flying.  (See  below 
imder  "38.  Additional  pay  for  special  duty.") 

12.  Midshipmen. — The  grade  of  midship- 
man as  part  of  the  active  list  of  the  line  was 
abolished,  and  the  grade  of  junior  ensign  created, 
by  act  of  March  3,  1883  (22  Stat.,  472),  which 
pro\dded  that  "the  midshipmen  now  on  the 
list  shall  constitute  a  junior  grade  of,  and  be 
commissioned  as,  ensigns,  ha\dng  the  same 
rank  and  pay  as  now  pro\dded  by  law  for  mid- 
shipmen. "  The  grade  of  junior  ensign  thus 
created  was  abolished  by  act  of  June  26,  1884, 
section  2  (23  Stat.,  60),  which  provided  that 
"the  junior  ensigns  now  on  the  list  shall  be 
commissioned  ensigns  in  the  Na\'y,  "  and  that 
graduates  of  the  Naval  Academy  who  are  as- 
signed to  the  line  of  the  Navy  on  the  successful 
completion  of  their  course  shall  be  commissioned 
ensigns  in  the  Navy.  (See  notes  to  sees.  1362 
and  1521,  R.  S.;  and  see  below,  under  "13.  Ca- 
det midshipmen.'") 

As  to  pay  of  ensigns,  see  above,  under  "11. 
Ensigns. " 

13.  Cadet  midshipmen. — By  section  1512, 
Re\dsed  Statutes,  it  was  pro\dded  that  "the 
students  at  the  Naval  Academy  shall  be  styled 
cadet  midshipmen. "  The  title  of  all  under- 
graduates at  the  Naval  Academy  was  changed 
to  "naval  cadets"  by  act  of  August  5,  1882 
(22  Stat.,  285),  and  the  title  "naval  cadet"  was 
changed  to  "midshipman"  by  act  of  July  1, 
1902  (32  Stat.,  686). 

By  act  of  May  13,  1908  (35  Stat.,  128),  the 
pay  of  midsLiipmen  was  fixed  at  $600  per  au- 


T99 


Sec.  1556. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


num  while  at  the  Naval  Academy,  and  SI, 400 
per  annum  after  graduation  from  the  Naval 
Academv. 

Prior  to  the  act  of  March  7,  1912  (37  Stat., 
73),  the  course  at  the  Naval  Academy  was  six 
years,  the  first  four  of  which  were  spent  in 
pursuing  the  academic  studies  at  the  Academy 
and  the  remaining  two  years  at  sea.  The  act 
of  May  13,  1908,  made  two  pay  grades  for  mid- 
shipmen. The  effect  of  the  act  of  1912,  which 
reduced  the  course  at  the  Naval  Academy  to 
four  years  was  to  eliminate  the  two  years'  serv- 
ice at  sea  and  also  the  pay  grade  provided  for 
those  thus  proN'iously  serNdng.  It  follows  that 
the  only  pay  for  midsliipmen  now  authorized 
by  law  is  that  for  those  pursuing  the  four  years, 
course  at  the  Naval  Academy,  viz,  $600  per 
annum.  (20  Comp.  Dec,  141;  23  Comp.  Dec, 
279.     ('ompare  note  to  sec.  1520,  R.  S.) 

By  act  of  July  11,  1919  (41  Stat.,  146),  it  was 
provided  that  "the  pay  of  midshipmen  shall 
hereafter  be  $780  per  annum. " 

By  act  of  August  29,  1916  (39  Stat.,  585),  it 
was  pro^dded  that  "student  flyers  shall,  after 
receiving  a  certificate  of  qualification  as  an 
aviator  for  actual  flying  in  aircraft,  rank  vrith 
midsliipmen  and  shall  receive  the  same  pay 
and  allowances  as  midshipmen,  plus  fifty  per 
centum  thereof. " 

As  to  rations  of  midshipmen,  see  note  to  sec- 
tion 1577,  Revised  Statutes. 

1 4.  Mates. — -On  the  general  subject  of  mates, 
their  status,  pay  and  allowances,  etc.,  see  notes 
to  sections  1408  and  1409,  Revised  Statutes. 
See  also  sections  1558,  1569,  and  1579,  Revised 
Statutes. 

By  act  of  August  1,  1894  (28  Stat.,  212),  the 
annual  pay  of  "the  twenty-eight  officers  now 
serving  as  mates  in  the  Navy  "  was  fixed  at  the 
foUomng  rates:  "When  at  sea,  twelve  hun- 
dred dollars;  on  shore  duty,  nine  hundred  dol- 
lars; on  leave  or  waiting  orders,  seven  hundred 
dollars." 

By  act  of  May  13, 1908  (35  Stat.,  128),  the  pay 
of  '  'all"  mates  was  increased  25  per  cent.  The 
pay  of  mates  under  section  1556,  Revised  Stat- 
utes, clause  14,  as  amended  by  said  acts  of 
August  1,  1894,  and  May  13,  1908,  is  as  follows: 
Mates  who  were  serving  as  such  on  August  1, 
1894 — when  at  sea,  $1,500;  on  shore  duty, 
$1,125;  on  leave  or  waiting  orders,  $875. 
Mates  who  were  rated  as  such  since  August  1, 
1894 — when  at  sea,  $1,125;  on  shore  duty,  $875; 
on  leave  or  waiting  orders,  $625. 

By  act  of  May  18,  1920,  section  6  (41  Stat., 
602),"  it  was  provided  that,  "commencing  Jan- 
uary 1,  1920,  the  following  shall  be  the  rate  of 
base  pay  for  each  enlisted  rating:  *  *  *  chief 
petty  officers  with  j>ermanent  appointments 
and  mates,  $126  per  month  " ;  and  by  section  13 
of  the  same  act  this  rate  of  pay  was  to  remain 
effective  "until  the  close  of  the  fiscal  year  end- 
ing June  30,  1922."  It  was  further  provided 
by  section  6  of  this  act  "that  the  rates  of  base 
pay  herein  fixed  shall  not  be  further  increased 
ten  per  centum  as  authorized  by  an  act  approved 
Slay  13,  1908,  nor  by  the  temporary  war  in- 
creases as  authorized  by  section  15  of  the  act 
approved  May  22,  1917,  as  amended  by  the  act 
approved  July  11,  1919." 

The  act  of  May  13,  1908  (35  Stat.,  128),  to 
which  reference  is  here  made,  authorized  an 


increase  of  10  per  cent  in  the  pay  of  "all  active 
and  retired  enlisted  men  of  the  Navy,"  but 
this  did  not  include  mates,  whose  pay,  as  above 
stated,  was  increased  25  per  cent  by  the  same 
act.  No  provision  is  contained  in  the  act  of 
May  18,  1920,  with  reference  to  the  inclusion 
or  exclusion  of  this  25  per  cent  increase  in  the 
computation  of  the  pay  of  mates  as  therein 
fixed.     (But  see  ("omp.  Dec,  noted  below.) 

The  act  of  May  22,  1917,  section  15  (40  Stat., 
87),  to  which  reference  is  also  made  in  the  pro- 
vision last  quoted  from  the  act  of  May  18,  1920, 
provided  that  "commencing  June  first,  nine- 
teen hundred  and  sev^enteen,  and  continuing 
until  not  later  than  six  months  after  the  termi- 
nation of  the  present  war,  all  enlisted  men  of  the 
Navy  of  the  United  States  in  active  service," 
should  receive  certain  increase  in  pay,  includ- 
ing the  following:  "Those  whose  base  pay  is 
$45  or  more  per  month,  an  increase  of  $6  per 
month."  The  act  of  July  11,  1919  (41  Stat., 
140),  also  referred  to  in  the  provision  last  quoted 
from  the  act  of  May  18,  1920,  provided  that  the 
rates  of  pay  prescribed  in  section  15  of  the  act 
approv^ed  May  22,  1917,  "are  hereby  made  the 
permanent  rates  of  pay  of  enlisted  men  of  the 
Nav'v  during  their  present  current  enlistment 
and  for  those  who  enlist  or  reenhst  prior  to  July 
1,  1920,  for  the  term  of  such  enlistment  or  reen- 
listment." 

Prior  to  May  18,  1920,  the  "base  pay"  of 
mates  (rated  as  such  since  Aug.  1,  1894)  had 
been  held  to  be  at  the  rate  Off  $875  per  annum, 
consisting  of  their  shore  duty  rate  under  section 
1556,  Revised  Statutes  ($700  per  annimi),  with 
the  25  per  cent  increase  allowed  thereon  under 
the  act  of  May  13,  1908.  The  act  of  May  18, 
1920,  supersedes  or  substitutes  for  said  former 
existing  base  pay  rate  that  of  S126  per  month, 
or  81,512  per  annum,  a  yearly  increase  of  $637 
per  annum.  As  the  old  base  rate  of  $875  per 
annum,  which  the  $126  per  month  supersedes, 
included  the  25  per  cent  additional,  the  act  of 
May  18,  1920,  operates  to  repeal  the  provision 
for  the  25  per  cent  increase  to  mates  in  the  act 
of  May  13,  1908.  Accordingly,  held,  that  the 
base  pav  of  mates  fixed  by  section  6  of  the  act 
of  May  18,  1920,  at  $126  per  month,  is  not  to  be 
increased  25  per  cent  thereof.  (27  Comp. 
Dec,  175,  citing  23  Comp.  Dec,  279.) 

The  act  of  May  18,  1920,  section  14  (41  Stat., 
604),  provided  that  "nothing  contained  in  this 
act  shall  operate  to  reduce  the  pay  or  allowances 
of  any  officer  or  enlisted  man  on  the  active  or 
retired  list:  Provided,  That  the  allowances 
and  gratuities  now  authorized  by  existing  law 
are  not  changed  hereby,  except  as  otherwise 
specified  in  this  act. ' ' 

Mates  who  are  honorably  discharged  from  the 
Nav^y  at  the  expiration  of  their  enlistment  and 
reenlist  in  the  rating  of  mate  within  four  months 
from  such  discharge  are  entitled  to  the  four 
months'  gratuity  pay  provided  by  section  1573 
of  the  Revised  Statutes  as  amended  by  the  act 
of  March  3,  1899,  section  16  (30  Stat.,  1008), 
such  honorable-discharge  gratuity  to  be  com- 
puted on  the  pay  they  were  receiving  at  the 
time  of  their  discharge  (14  Comp.  Dec,  457). 
By  act  of  May  18,  1920,  section  10  (41  Stat., 
603),  it  was  provided  that  "any  enlisted  man 
or  apprentice  seaman  who  shall  reenlist  in  the 
Navy  within  one  year  from  the  date  of  his  dis- 


800 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1556. 


charge  therefrom  shall,  upon  such  reenlist- 
ment,  be  entitled  to  and  shall  receive  the  same 
benefits  as  are  now  authorized  by  law  for  reen- 
listment  mthin  four  months  from  date  of  last 
discharge  from  the  service:  Provided,  That  this 
section  shall  become  inoperative  six  months 
after  the  date  of  the  approval  of  this  act." 

Because  of  the  prohibition  contained  in  sec- 
tion 1558,  Revised  Statutes,  mates  are  not 
entitled,  upon  reenlistment  in  accordance  wath 
section  1573,  Revised  Statutes,  as  amended  by 
the  act  of  March  3,  1899,  section  16  (30  Stat., 
1008),  to  continuous-service  pay  as  provided 
therein  for  enlisted  men  who  reenlist  pursuant 
to  said  statutes  (14  Oomp.  Dec,  457);  and  for 
the  same  reason,  the  pay  fixed  for  mates  by  the 
act  of  May  18,  1920,  is  not  to  be  increased  for 
continuous  service  (27  Comp.  Dec,  175). 

Mates  being  specifically  excepted  from  the 
provisions  of  section  1569,  Revised  Statutes, 
under  authority  of  which  extra  compensation 
for  good-conduct  medals  and  bars,  seaman 
gunner's  certificates,  and  petty  officer's  certifi- 
cates, is  provided,  they  are  not  entitled  to  such 
extra  compensation  (14  Comp.  Dec,  457). 
Nor  does  the  act  of  May  18,  1920,  operate  to 
grant  to  mates  in  the  Navy  the  right  to  perma- 
nent additions  to  their  base  pay  that  are  au- 
thorized for  enlisted  men  of  the  Navy  gener- 
ally under  General  Order  No.  34  for  continu- 
ous service  and  for  good-conduct  medals. 
Inasmuch  as  mates  possessed  no  right  to  said 
permanent  additions  to  their  pay  previously 
to  May  18,  1920,  differing  in  this  respect  from 
enlisted  men  generally,  they  could  not  become 
invested  by  the  act  of  May  18,  1920,  with  a 
right  to  said  permanent  additions  without  ex- 
press legislation  to  that  effect.  The  mere 
change  of  their  base  pay  rating,  along  with  that 
of  changes  in  the  base  pay  of  other  enlisted 
ratings,  did  not  in  itself  confer  on  mates  the 
independent  right  to  said  permanent  additions 
to  base  pay  which  the  other  enlisted  ratings 
already  possessed.     (27  Oomp.  Dec,  175.) 

For  other  decisions,  see  note  to  section  1408, 
Revised  Statutes. 

As  to  allowances  of  mates,  see  notes  to  sections 
1558  and  1578,  Revised  Statutes. 

15.  Fleet  officers. — See  notes  to  sections 
1373,  1382,  and  1393,  Re\'ised  Statutes,  on  the 
general  subject  of  fleet  officers. 

An  officer  commissioned  after  July  1,  1899,  is 
not  entitled  to  the  pay  provided  by  section 
1556,  Revised  Statutes,  for  fleet  engineers. 
The  pay  provided  by  that  section,  including 
the  pay  of  fleet  engineers,  is  the  old  Navy  pay, 
and  this  old  Navy  pay  is  reserved  to  officers 
who  were  in  the  Navy  on  June  30,  1899.  As  to 
other  commissioned  officers  of  the  line  and  of 
the  Medical  and  Pay  Corps,  the  act  of  March  3, 
1899,  section  13,  provided  that  they  shall  re- 
ceive the  "same"  pay  and  allowances,  except 
forage,  as  officers  of  the  corresponding  rank  in 
the  Army.  The  word  "same''  in  this  provi- 
sion means  "identical,  not  different  or  other." 
(Comp.  Dec,  Aug.  14,  1914,  150  S.  and  A. 
Memo.,  2761;  see  above,  under  "1.  General 
Rule."  Compare,  U.  S.  v.  Thomas,  195  U.  S., 
418,  421,  holding  that  the  act  of  March  3,  1899, 
extended  to  naval  officers  only  the  general  pay 
authorized  for  the  Army,  and  not  the  pay  of 
Army  officers  "for  services  in  particular  places 


or  under  special  circumstances";  and  see  12 
Comp.  Dec,  185,  188,  holding  that  "an  engineer 
of  the  fleet  is  a  member  of  the  fleet  staff  of  a 
flag  officer,  and  as  such  has  special  duties  to  per- 
form, in  consideration  of  which  he  receives  in- 
creased pay.  The  position  is  somewhat  analo- 
gous in  this  respect  to  that  of  aid,  who  is  a  mem- 
ber of  the  personal  staff  of  the  flag  officer,  and 
who  receives  additional  pay  for  the  additional 
services  performed  as  such.") 

The  act  of  June  7,  1900  (31  Stat.,  697),  which 
provides  that  the  naval  personnel  act  of  March 
3,  1899,  section  13,  shall  not  operate  so  as  to 
reduce  the  pay  which  but  for  the  passage  of 
that  act  would  have  been  received  by  any 
commissioned  officer  at  the  time  of  its  passage 
or  thereafter,  extends  to  pay  which  officers  may 
subsequently  become  entitled  to  receive  and  to 
the  pay  of  a  fleet  engineer  as  prescribed  by  sec- 
tion 1556,  Revised  Statutes.  (Denig  v.  U.  S., 
37  Ct.  Cls.,  383.) 

As  to  increased  pay  for  special  service  as  aid, 
see  note  below  under  this  section. 

16,  Medical  directors  and  inspectors; 
pay  directors  and  inspectors. — See  notes  to 
sections  1368,  1376,  1474,  and  1475,  Revised 
Statutes. 

Under  the  acts  of  May  13,  1908,  and  August 
29,  1916,  all  officers  of  the  Navy  receive  the 
same  pay  and  allowances  according  to  rank  and 
length  of  service,  except  in  certain  cases  where 
the  old  Navy  pay  is  higher  than  that  provided 
for  officers  of  the  same  rank  and  longevity. 
(See  above,  under  "1.  General  Rule.") 

Medical  directors  and  pay  directors  have  the 
rank  of  rear  admiral  and  captain  in  each  grade, 
and  medical  inspectors  and  pay  inspectors  have 
the  rank  of  commander.  (See  notes  to  sections 
1474_and  1475,  _R.  S.)  As  to  the  pay  of  rear 
admirals,  captains,  and  commanders,  see  notes 
above,  under  this  section. 

17.  Surgeons,  paymasters,  and  chief 
engineers. — See  notes  to  sections  1368,  1376, 
1390,  1474-1476,  Revised  Statutes. 

Under  the  acts  of  May  13,  1908,  and  August 
29,  1916,  all  officers  of  the  Navy  receive  the 
same  pay  and  allowances,  according  to  rank  and 
length  of  service,  except  in  certain  cases  where 
the  old  Navy  pay  is  higher  than  that  provided 
for  officers  of  the  same  rank  and  longevity. 
(See above,  under  "1.  General  Rule.") 

Officers  of  the  Medical  Corps  below  the  grade 
of  medical  inspector,  viz,  surgeons,  passed 
assistant  surgeons,  and  assistant  surgeons,  have 
the  rank  of  lieutenant  commander,  lieutenant, 
and  lieutenant  (junior  grade),  depending  upon 
their  length  of  service,  original  appointments 
being  made  with  the  rank  of  lieutenant  (junior 
grade),  and  thereafter  advancements  in  rank 
up  to  and  including  the  rank  of  lieutenant  com- 
mander being  made  "with  the  officers  of  the 
line  with  whom  or  next  after  whom  they  take 
precedence  under  existing  law.  "  (See  note  to 
sec  1474,  R.S.) 

Officers  of  the  Supply  Corps  below  the  grade  of 
pay  inspector,  viz,  paymasters,  passed  assistant 
paymasters,  and  assistant  paymasters,  have 
the  rank  of  lieutenant  commander,  lieutenant, 
lieutenant  (junior  grade),  and  ensign,  depend- 
ing upon  their  length  of  service,  original  ap- 
pointments being  made  with  the  rank  of  ensign, 
and  thereafter  advancements  in  rank  up  to  and 


801 


Sec.  1656. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


including  the  rank  of  lieutenant  commander  be- 
ing made  ''Avith  the  officers  of  the  line  w-ith 
whom  or  next  after  whom  they  take  precedence 
under  existing  law. "  (See  note  to  sec.  1475, 
R.  S.) 

The  Engineer  Corps  was  abolished  by  the 
Navy  personnel  act  of  March  3,  1899  (30  Stat., 
1004).     (See  note  to  sec.  1390,  R.  S.) 

As  to  the  pay  of  the  various  ranks,  see  notes 
above,  under  this  section. 

''Mounted  pay"  is  not  an  allowance  but  pay 
proper;  the  officer  to  whom  it  is  assigned  by 
statute  receives  it  whether  he  is  actually 
mounted  or  not;  where  a  surgeon  in  the  Army  is 
entitled  to  it,  a  surgeon  in  the  Navy  receiving 
Army  pay  under  the  act  of  March  3,  1899,  is 
entitled  to  it  also.  (Richardson  v.  U.  S.,  38 
Ct.  (1s.,  182.) 

18.  Passed  assistant  surgeons,  passed 
assistant  paymasters,  and  first  assistant 
engineers.- — See  note  above,  under  "  17.  Sur- 
geons, paymasters,  and  chief  engineers."  See 
also  note' to  sections  1368  and  1371,  Revised 
Statutes,  concerning  the  status  and  pay  of  passed 
assistant  surgeons. 

19.  Assistant  surgeons,  acting  assistant 
surgeons,  assistant  paymasters,  second 
engineers.- — See  note  above,  under  ''17.  Sur- 
geons, pajTnasters,  and  chief  engineers.  " 

Under  section  13  of  the  Navy  personnel  act  of 
March  3,  1899  (30  Stat.,  1007),  and  the  acts  of 
Jime  7,  1900  (31  Stat.,  697),  March  2,  1907  (34 
Stat.,  1167),  and  May  13, 1908  (35  Stat.,  127),  the 
pay  of  acting  assistant  surgeons  was  enhanced 
and  assimilated  to  that  of  assistant  surgeons  and 
did  not  remain  fixed  as  regulated  by  section 
1556,  Revised  Statutes.  The  rank  of  assistant 
surgeons  having  been  raised  from  ensign  to 
lieutenant  (junior  grade),  an  acting  assistant 
em'geon  was  entitled  to  pay  and  allowances  pro- 
vided by  law  for  assistant  surgeons  at  the  time 
his  services  as  acting  assistant  surgeon  were 
rendered,  and  where  he  was  allowed  pay  and 
allowances  only  at  the  rate  fixed  for  assistant 
surgeons  at  the  time  the  act  of  May  4,  1898  (30 
Stat.,  369,  380),  was  passed,  he  was  entitled  to 
recover  the  difference.  (Plummer  v.  U.  S., 
224  U.  S.  137,  overruling  Taylor  v.  U.  S.,  38  Ct. 
Cls.,  155,  and  Nelson  v^\J.  S.,  41  Ct.  Cls.,  157. 
See  note  to  sec.  1411,  R.  S.) 

By  act  of  May  18,  1920  (41  Stat.,  602),  th^  pay 
of  acting  assistant  surgeons  was  increased  $600 
per  annum,  "in  addition  to  all  pay  and  allow- 
ances now  allowed  by  law, "  such  increase  to 
commence  January  1,  1920,  and  to  remain  effec- 
tive "until  the  close  of  the  fiscal  year  ending 
June  30,  1922. " 

20.  Assistant  surgeons  qualified  for  pro- 
motion.-— See  note  above,  under  "17.  Sur- 
geons, paymasters^  and  chief  engineers.  "  See 
also  notes  to  sections  1368  and  1371,  Revised 
Statutes,  concerning  the  status  of  passed  assist- 
ant surgeons,  and  the  promotion  of  assistant 
surgeons. 

21-22.  Naval  constructors;  assistant 
naval  constructors. — Under  the  acts  of  May 
13,  1908,  and  August  29,  1916,  afl  officers  of  the 
Navy  receive  the  same  pay  and  allowances, 
according  to  rank  and  length  of  service,  except 
in  certain  cases  where  the  old  Navy  pay  is  higher 
than  that  provided  for  officers  of  the  same  rank 


and  longevity.    (See  above,  under  "1.  General 
Rule.  '•) 

As  to  the  rank  of  naval  constructors  and  as- 
sistant naval  constructors,  see  note  to  se<-tion 
1477,  Revised  Statutes;  as  to  the  organization 
of  the  Construction  Corps,  see  notes  to  sections 
1402  and  1403,  Revised  Statutes;  as  to  the  pay 
of  the  various  ranks,  see  notes  above,  under 
this  section. 

23.  Chaplains  and  acting  chaplains. — 
See  notes  to  sections  1395-1398  and  1479,  Re- 
vised Statutes. 

By  act  of  June  29,  1906  (34  Stat.,  554),  it  was 
provided  that  "all  chaplains  now  in  the  Navy 
above  the  grade  of  lieutenant  shall  receive  the 
pay  and  allowances  of  lieutenant  commander 
in  the  Navy  according  to  length  of  service  under 
the  provisions  of  law  for  that  rank,  and  all  chap- 
lains now  in  the  Navy  in  the  grade  of  lieutenant 
shall  receive  their  present  sea  pay  when  on 
shore  duty."  The  same  act  further  provided 
that ' '  naval  chaplains  hereafter  appointed  shall 
have  the  rank,  pay,  and  allowances  of  lieu- 
tenant (junior  grade)  in  the  Navy  until  they 
shall  have  completed  seven  years  of  service, 
when  they  shall  have  the  rank,  pay,  and  allow- 
ances of  lieutenant  in  the  Navy ;  and  lieutenants 
shall  be  promoted,  whenever  vacancies  occur, 
to  the  grade  of  lieutenant  commander,  which 
shall  consist  of  five  numbers,  and  when  so  pro- 
moted shall  receive  the  ranlc,  pay,  and  allow- 
ances of  lieutenant  commander  in  the  Navy: 
Provided  further,  That  nothing  herein  contained 
shall  be  held  or  construed  to  increase  the  num- 
ber of  chaplains  as  now  authorized  by  law  or  to 
reduce  the  rank  or  pay  of  any  now  serving." 

By  act  of  May  13,  1908  (see  above,  under 
"1.  General  rule"),  all  officers  of  the  Navy 
were  given  the  same  pay  and  allowances,  ac- 
cording to  rank  and  length  of  service,  %vith  the 
limitation  that  "the  pay  and  allowances  of 
chaplains  in  the  Navy  shall  in  no  case  exceed 
that  provided  for  lieutenant  commanders,"  and 
the  saving  clause  that  "nothing  herein  shall  be 
construed  so  as  to  reduce  the  pay  or  allowances 
now  authorized  by  law  for  any  commissioned, 
warrant,  or  appointed  officer  *  *  *  of  the 
active  or  retired  lists  of  the  Navy." 

By  act  of  June  30,  1914  (38  Stat.,  404),  the 
grade  of  acting  chaplain  was  created  with  the 
rank,  pay,  and  allowances  of  lieutenant  (junior 
grade),  and  provision  was  made  for  promotion 
of  acting  chaplains  to  the  grade  of  chaplain 
with  the  rank  of  lieutenant  (junior  grade),  and 
for  the  advancement  of  chaplains  to  higher 
ranks  to  and  including  the  rank  of  captain, 
with  the  proviso  ' '  that  no  provision  of  this  sec- 
tion shall  operate  to  reduce  the  rank,  pay,  or 
allowances  that  would  have  been  received  by 
any  person  in  the  Navy  except  for  the  passage 
of  this  section."  (See  note  to  sec.  1479,  R.  S.) 
By  act  of  August  29,  1916  (39  Stat.,  581),  it 
was  provided  that  '  'hereafter  all  commissioned 
officers  of  the  active  list  of  the  Navy  shall  re- 
ceive the  same  pay  and  allowances  according 
to  rank  and  length  of  service,"  omitting  the 
Limitation  contained  in  the  act  of  May  13,  1908, 
with  reference  to  the  pay  of  chaplains.  Also 
in  the  same  act  it  was  pro\dded  that  "nothing 
contained  in  this  act  shall  be  construed  to  re- 
duce the  rank,  pay,  or  allowances  of  any  officer 


802 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1556. 


of  the  Navy  or  Marine  Corps  as  now  provided 
bylaw."  (See  above,  under  "1.  General  rule.") 
The  effect  of  the  act  of  August  29, 1916,  was  to 
repeal  the  limitation  in  the  act  of  May  13,  1908, 
respecting  the  pay  and  allowances  of  chaplains, 
and  to  give  to  chaplains  above  the  rank  of 
lieutenant  commander  the  pav  and  allowances 
of  their  rank.  (Comp.  Dec,  May  23,  1917,  195 
S.  and  A.  Memo.,  4251.) 

As  to  rank  of  chaplains,  see  note  to  section 
1479,  Re\dsed  Statutes. 

As  to  the  pay  of  the  various  ranks,  see  notes 
above,  under  this  section. 

24.  Professors  of  mathematics,  civil 
engineers,  and  assistant  civil  engineers. — 
See  notes  to  sections  1399-1401  and  1480,  Re- 
vised Statutes,  respecting  professors  of  mathe- 
matics; and  notes  to  sections  1413  and  1478, 
Re\'ised  Statutes,  respecting  ci\al  engineers 
and  assistant  civil  enarineers. 

Under  the  acts  of  May  13, 1908,  and  August  29, 
1916,  all  officers  of  the  Navy  receive  the  same 
pay  and  allowances  according  to  rank  and 
length  of  ser\dce,  except  in  certain  cases  where 
the  old  Navy  pay  is  higher  than  that  pro^'ided 
for  officers  of  the  same  rank  and  longevity. 
(See  above,  under  "1.  General  rule.") 

As  to  rank  of  professors  of  mathematics,  see 
section  1480,  Re\dsed  Statutes,  and  note  there- 
to; as  to  rank  of  ci\-il  engineers  and  assistant 
civil  engineers,  see  note  to  section  1478,  Re- 
\dsed  Statutes. 

As  to  the  pay  of  the  various  ranks,  see  notes 
above,  under  this  section. 

Further  appointments  to  the  corps  of  profes- 
sors of  mathematics  were  prohibited  by  act  of 
August  29,  1916  (39  Stat.,  577),  which  act  pro- 
vided that  "that  corps  shall  cease  to  exist  upon 
the  death,  resignation,  or  dismissal  of  the 
officers  now  carried  in  that  corps  on  the  active 
and  retired  lists  of  the  Navy." 

25.  Warrant  officers,  acting  warrant 
officers,  and  commissioned  warrant  offi- 
cers.— See  notes  to  sections  1405-1409,  Re- 
vised Statutes.  As  to  allowances  of  warrant 
officers,  see  note  to  section  1558,  Re\ised  Stat- 
utes. 

By  act  of  June  17,  1898  (30  Stat.,  474,  475), 
the  "grade  of  pharmacist  was  created  in  the 
Hospital  ("orps  of  the  Navy,  'Snth  the  i-ank, 
pav,  and  privileges  of  warrant  officers." 

By  act  of  March  3,  1899,  section  12  (30  Stat., 
1007),  it  was  pro^•ided  that  "the  pay  of  boat- 
swains, gunners,  carpenters,  and  sailmakers 
shall  be  the  same  as  that  now  allowed  by  law." 

By  the  same  act  of  March  3,  1899,  sections  14 
and  15  (30  Stat.,  1007,  1008),  the  gi-ade  of  war- 
rant machinist  was  authorized  with  the  pro\'i- 
sion  that  the  pay  of  that  grade  "shall  be  the 
same  as  that  of  warrant  oflicers" ;  and  that 
"warrant  machinists  shall  receive  at  first  an 
acting  appointment,  which  may  be  made  per- 
manent under  regulations  established  by  the 
Navy  Department  for  other  warrant  officers." 
By  cict  of  March  3,  1909  (35  Stat.,  771),  the  title 
of  "warrant  machinist"  was  changed  to  "ma- 
chinist." 

By  act  of  May  13,  1908  (35  Stat.,  128),  it  was 
pro\'ided  that  "the  pay  of  all  warrant  officers 
*  *  *  is  hereby  increased  twentv-five  per 
cent." 


By  act  of  March  3,  1915  (38  Stat.,  942),  the 
grade  of  pay  clerk  was  established  as  a  grade  of 
warrant  officers  in  the  Na\y,  appointments 
thereto  being  regularly  made  by  promotion 
from  the  grade  of  acting  pay  clerk,'  also  created 
by  that  act,  and  it  was  pro\ided  that  "pay 
clerks  and  acting  pay  clerks  shall  have  the 
same  pay,  allowances,  and  other  benefits  as  are 
now  or  may  hereafter  be  allowed  other  warrant 
officers  and  acting  warrant  officers,  resrec- 
tively."  ' 

By  act  of  August  29,  1916  (39  Stat.,  572),  it 
was  provided  that  "the  pharmacists  now  in  the 
Hospital  Corps  of  the  United  States  Navy  or 
hereafter  appointed  therein  in  accordance  Avith 
the  provisions  of  this  act  shall  have  the  same 
rank,  pay,  and  allowances  as  are  now  or  may 
hereafter  be  allowed  other  warrant  officers." 

By  the  same  act  of  August  29,  1916  (39  Stat., 
578),  it  was  pro\'ided  that  "warrant  officers 
shall  be  allowed  such  leave  of  absence,  with 
full  pay,  as  is  now  or  may  hereafter  be  allowed 
other  officers  of  the  United  States  Navy." 
Under  this  pro^'ision,  a  warrant  officer  granted 
leave  of  absence  from  duty  at  sea  is  entitled 
to  full  pay  at  the  rate  received  by  him  while  on 
sea  duty;  the  words  "full  pay,"  as  used  in  this 
pro\ision,  "undoubtedly  mean  that  warrant 
officers  are  to  be  granted  leave  without  any 
reduction  in  the  pay  they  are  recei\ang  at  the 
time  leave  is  granted."  (23  Comp.  Dec,  200; 
but  note  that  the  "other  officers  of  the  United 
States  Navy,"  referred  to  in  this  enactment, 
do  not,  while  on  leave  of  absence  from  sea 
duty,  receive  full  pay  at  the  rate  received  by 
them  while  on  sea  duty:  see  18  Comp.  Dec, 
340,  and  see  note  below  as  to  leave  of  absence 
pay.) 

By  act  of  March  4,  1917  (39  Stat.,  1181),  it 
was  provided  that  "hereafter  the  pay  of  warrant 
officers  while  on  shore  duty  during  the  fourth 
three  vears'  sersdce  shall  be  $1,750  per  annum." 

By  act  of  July  11,  1919  (41  Stat.,  140),  war- 
rant officers  on  shore  duty  beyond  the  con- 
tinental limits  of  the  United  States  shall, 
while  so  ser^'ing  and  from  the  time  of  departure 
from  and  until  the  time  of  return  to  said  limits 
under  orders  to  or  from  such  foreign-shore  duty, 
receive  the  same  pay  as  is  now  or  may  be  au- 
thorized by  law  for  warrant  officers  on  sea  duty. 
Prior  to  this  enactment  warrant  officers  were 
not  entitled  to  increased  pav  for  shore  duty 
bevond  seas.  (Ollif  v.  U.  S.,'46  Ct.  Cls.,  349; 
14  Comp.  Dec,  882.) 

The  grade  of  saUmaker  has  become  obsolete, 
no  appointment  thereto  ha\ing  been  made 
since  May  4,  1888.  (See  note  to  sec  1405, 
R.  S.) 

Under  section  1556,  Re^'i8ed  Statutes  (clause 
25),  as  amended  by  the  foregoing  statutes,  thf 
pay  of  warrant  officers,  that  is,  boatswains, 
gunners,  carpenters,  machinists,  pharmacists, 
and  pay  clerks,  is  as  follows:  During  the  first 
three  years  after  date  of  appointment,  when  at 
sea  or'  on  foreign-shore  dutv,  $1,500;  on  shore 
duty,  $1,125;  on  waiting  orders,  $875;  during 
the  "second  three  years  after  such  date,  when  at 
sea  or  on  foreign-shore  dutv,  $1,625;  on  shore 
dutv,  $1,250;  on  waiting  orders,  $1,000;  during 
the 'third  three  years  after  such  date,  when  at 
sea  or  on  foreign  shore  duty,  $1,  750;  on  shore 


h 


803 


Sec.  1556. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


duty,  ?l,rr25;  on  waitinc;  orders,  $1,125;  during 
the  fourth  throe  years  after  such  date,  when  at 
sea  or  on  foreign-shore  duty,  $2,000;  on  shore 
duty,  $1,750;  on  waiting  orders,  $1,250;  after 
12  years  from  such  date,  when  at  sea  or  on  for- 
eign-shore duty,  $2,250;  on  shore  duty,  $2,000; 
on  waiting  orders,  $1,500.  (The  "waiting  or- 
ders" pay  as  gi\'en  in  this  paragraph  is  also  the 
leave  pay  which  warrant  oflicers  are  in  practice 
allowed  while  on  leave  of  a})sence  in  excess  of 
the  time  authorized  by  law  \nth  full  pay.) 
Acting  pay  clerks,  and  machinists  holding  acting 
appointments  as  such,  as  authorized  by  statute, 
and  boatswains,  gunners,  and  carpenters  hold- 
ing acting  appointments  as  authorized  by 
Navy  Regulations,  receive  the  same  rates  of 
pay  as  above  set  forth  for  warrant  officers. 
(See  note  to  sec.  1410,  R.  S.,  as  to  acting  officers.) 

By  act  of  May  18,  1920  (41  Stat.,  602),  the 
pay  of  warrant  officers  of  the  Navy  was  in- 
creased $240  per  annum,  "in  addition  to  all 
pay  and  allowances  now  authorized  by  law, " 
such  increase  to  commence  January  1,  1920, 
and  to  remain  effective  "until  the  close  of  the 
fiscal  year  ending  June  30,  1922.  " 

Special  pro\asions  as  to  pay  of  retired  warrant 
officers  while  employed  on  active  duty  are  con- 
tained in  act  of  April  10,  1918  (40  Stat.,  51 G). 

By  act  of  March  3,  1899,  section  12  (30  Stat., 
1007),  chief  boatswains,  chief  gunners,  chief 
carpenters,  and  chief  sailmakers  were  to  "rank 
with,  but  after,  ensign,"  and  to  receive" the 
same  pay  and  allowances  as  are  now  allowed  a 
second  lieutenant  in  the  Marine  Corps.  " 

By  act  of  May  13,  1908  (see  above,  under  "1. 
General  rule"),  it  was  provided  that  "here- 
after all  commissioned  officers  of  the  active  list 
of  the  Navy  shall  receive  the  same  pay  and 
allowances  according  to  rank  and  length  of 
eer\'ice,  "  with  the  saving  clause  that  "nothing 
herein  shall  be  construed  so  as  to  reduce  the 
pay  or  allowances  now  authorized  by  law  for 
any  commissioned,  warrant,  or  appointed  offi- 
jjgj.  *  *  *  q{  ^YiQ  active  or  retired  lists  of 
the  Na\y . "  Under  this  act  chief  boatswains, 
chief  gunners,  chief  carpenters,  and  chief  sail- 
makers,  being  commissioned  officers  and  hav- 
ing the  rank  of  ensign,  became  entitled  to  the 
same  pay  and  allowances  as  ensigns  in  the 
Navy.  (14  Comp.  Dec,  883.)  As  to  the  pay 
of  ensigns,  see  notes  above,  under  this  section. 

By  act  of  March  3, 1909  (35  Stat.,  771),  it  was 
provided  that  "no  warrant  officer,  heretofore  or 
hereafter  promoted  six  years  from  date  of  war- 
rant, shall  suffer  a  reduction  in  pay  which,  but 
for  such  promotion,  would  have  been  received 
by  him. "  Under  this  act  the  pay  which  is  not 
to  be  reduced  is  the  pay  attaching  to  the  war- 
rant officer  in  the  lower  grade  at  the  time  the 
officer  vacates  it  upon  promotion  to  a  higher 
grade,  and  does  not  include  any  additional 
pay  that  may  thereafter  be  made  a  part  of  the 
warrant  office  thus  vacated  by  subsequent 
legislation.    (26  Comp.  Dec,  935.) 

By  the  same  act  of  March  3,  1909  (35  Stat., 
771),  it  was  provided  that  chief  machinists 
shall  "have  the  same  pay  and  allowances  as 
are  allowed  chief  boatswains,  chief  gunners, 
chief  carpenters,  and  chief  sailmakers. " 

By  act  of  August  22,  1912  (37  Stat.,  345),  it 
was  provided  that  chief  pharmacists  shall ' '  have 
the  rank,  pay,  and  allowances  of  chief  boat- 


swains. "  By  act  of  August  29,  1916  (39  Stat., 
572,  573),  it  was  provided  that  chief  pharma- 
cists shall  "have  the  same  rank,  pay,  and 
allowances  as  now  or  may  hereafter  be  allowed 
other  commissioned  warrant  officers.  " 

By  act  of  March  3,  1915  (38  Stat.,  942),  it  was 
provided  that  chief  pay  clerks  shall  "have 
the  rank,  pay,  and  allowances  of  chief  boat- 
swains. " 

By  act  of  August  29,  1916  (39  Stat.,  578),  it 
was  provided  that  "hereafter  chief  boatswains, 
chief  gunners,  chief  machinists,  chief  carpen- 
ters, chief  sailmakers,  chief  pharmacists,  and 
chief  pay  clerks,  on  the  active  list  with  credit- 
able records,  shall,  after  six  years  from  date  of 
commission,  receive  the  pay  and  allowances 
that  are  now  or  may  hereafter  be  allowed  a 
lieutenant  (junior  grade),  United  States  Navy: 
Provided,  That  chief  boatswains,  chief  gunners, 
chief  machinists,  chief  carpenters,  chief  sail- 
makers, chief  pharmacists,  and  chief  pay 
clerks,  on  the  active  list  with  creditable  records, 
shall,  after  12  years  from  date  of  commission, 
receive  the  pay  and  allowances  that  are  now  or 
may  hereafter  be  allowed  a  lieutenant.  United 
States  Navy.  "  Similar  provisions  as  to  pay  of 
retired  chief  warrant  officers  while  employed 
on  active  duty  are  contained  in  act  of  April  10, 
1918  (40  Stat.,  516.) 

"Creditable  records"  within  the  meaning  of 
the  act  of  August  29,  1916,  relating  to  the  pay 
of  commission  warrant  officers,  does  not  import 
distinguished  records,  but  requires  only  that  a 
record  be  such  that  upon  examination  for  pro- 
motion it  would  be  found  satisfactory.  In 
passing  upon  the  creditability  of  an  officer's 
record  in  these  cases  consideration  should  be 
given  to  all  matters  therein  disclosed,  whether 
pertaining  to  his  mental,  moral,  or  professional 
qualifications,  and  it  is  necessary  that  an  officer 
be  satisfactory  in  all  these  respects  if  his  record 
is  to  be  deemed  creditable.  (C.  M.  O.  33,  1916, 
p.  6,  citing  file  17789-27,  Sept.  21,  1916.) 

In  determining  whether  the  record  of- a  com- 
missioned warrant  officer  is  creditable,  the  in- 
vestigation should  ordinarily  be  limited  to  a 
scrutiny  of  his  record  in  his  present  grade,  and 
his  prior  record  in  the  service  should  not  ba 
taken  into  consideration  except  in  the  cases 
where  under  existing  law  this  would  be  done 
in  determining  his  fitness  for  promotion. 
(C.  M.  O.  33,  1916,  p.  6,  citing  file  17789-27, 
Sept.  21,  1916.)  _ 

When  a  commissioned  warrant  officer  has  the 
necessary  length  of  service,  and  it  has  been 
decided  by  the  Navy  Department  that  his 
record  is  creditable,  this  definitely  fixes  the 
rate  of  pay  and  allowances  to  which  he  is 
entitled,  and,  in  the  event  of  his  record  ceasing 
to  be  creditable,  his  pay  and  allowances  can 
not  be  affected  except  by  means  of  disciplinary 
action  as  in  the  cases  of  all  officers.  (C.  M.  O. 
33,  1916,  p.  6,  citing  file  17789-27,  Sept.  21, 
1916.) 

The  purpose  of  the  law  of  August  29,  1916, 
was  clearly  to  give  additional  pay  to  commis- 
sioned warrant  officers  in  the  nature  of  the 
longevity  increase  to  which  officers  of  the 
Navy  are  generally  entitled.  Congress  did  not 
intend  that,  the  right  to  increased  pay  and 
allowances  once  having  accrued,  the  benefit 
thereof  should  be  lost  upon  an  extra  judicial 


804 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1556. 


determination  by  the  Navy  Department  that 
the  officer's  record  had  ceased  to  be  creditable, 
but  rather  Congress  contemplated  that  any- 
thing of  a  discreditable  nature  thereafter  occur- 
ring should  be  disposed  of  by  means  of  the 
disciplinary  instrumentalities  which  it  has 
placed  under  the  control  of  the  Secretary  of 
the  Navy,  and  which  may  and  should  be  re- 
sorted to  for  the  purpose  of  reducing  the  pay 
and  allowances  of  any  officer,  or  dismissing 
him  from  the  Navy,  or  otherwise  punishing 
him  as  mav  be  appropriate.  (File  17789-27, 
Sept.  21,  1916.) 

\\1ien  the  record  of  a  commissioned  warrant 
officer  has  been  held  by  the  Navy  Department 
to  be  creditable,  and  a  certificate  to  that  effect 
issued,  but  subsequently  it  is  established  by 
additional  e^ddence,  unknown  to  the  depart- 
ment at  the  time  the  certificate  was  issued, 
that  said  certificate  was  clearly  erroneous  and 
that  in  fact  his  record  was  not  creditable  on  the 
date  thereof,  because  of  serious  offenses  com- 
mitted by  him  prior  thereto  of  which  he  was 
convicted  by  general  court-martial  subsequent 
to  the  issuance  of  the  certificate,  held,  that  the 
cancellation  of  the  certificate  was  authorized, 
and  that  the  officer 's  request  that  it  be  retm'ned 
must  accordingly  be  denied;  that  the  certifi- 
cate was  not  cancelled  because  of  matters 
occurring  subsequent  to  its  issuance,  and  the 
case  therefore  is  not  one  covered  by  the  deci- 
sion of  September  21,  1916  (above  cited). 
(File  17789-27:  21,  Feb.  28,  1919.) 

The  question  whether  an  oflicer's  record  is 
creditable  ^\ithin  the  meaning  of  the  statute 
must  be  determined  in  each  specific  case  as  it 
arises,  and  such  determination  must  be  that  of 
the  Secretary  of  the  Na\'y'.  The  law  does  not 
prescribe  what  method  shall  be  pursued  by  the 
Secretary  in  ascertaining  the  fact  of  credita- 
bility,  and  this  matter  is  accordingly  left  to  the 
Secretary's  discretion,  in  the  exercise  of  which 
he  may  avail  himself  of  any  appropriate  ad- 
ministrative instrumentality.  Suggested,  that 
when  a  commissioned  warrant  officer  has  the 
necessaiy  length  of  ser\dce,  his  entire  record  in 
his  existing  grade  be  referred  to  an  examining 
board  for  report  as  to  whether  or  not  in  the 
opinion  of  the  board  his  record  is  creditable,  the 
board  being  governed,  in  arriving  at  its  conclu- 
sion, by  the  same  considerations  as  would 
influence  it  in  determining  whether  or  not  the 
officer  in  question  would  be  qualified  on  his 
record  if  undergoing  examination  for  promo- 
tion. The  personal  appearance  of  the  officer 
before  the  board  would  not  be  required  by  law, 
and  as  an  administrative  matter  might  be  un- 
desirable as  well  as  expensive  and  inconvenient. 
The  board  might,  however,  if  deemed  advis- 
able, call  upon  the  officer  to  submit  evidence, 
or  afford  him  an  opportunity  to  submit  a  state- 
ment for  its  consideration.  The  Secretary 
would  be  empowered  to  approve  or  disapprove 
the  board 's  report,  or  to  make  an  independent 
decision  based  upon  the  evidence  adduced. 
(File  17789-27,  Sept.  21,  1916;  see  also  Gen. 
Order  No.  247,  Nov.  4,  1916.) 

Whether  or  not  a  commissioned  warrant  offi- 
cer's record  is  creditable  is  a  question  of  fact  to 
be  determined  by  the  examining  board  in  any 
case  referred  to  it  for  report.  The  period  of 
"twelve  years  from  date  of  commission,"  is 


indivisible  and,  if  his  record  is  not  creditable 
considering  the  entire  period,  he  is  not  entitled, 
on  a  finding  that  his  record  was  creditable  for 
the  last  six  years  of  the  period,  to  the  pay  and 
allowances  of  a  lieutenant  (junior  grade).  (File 
17789-27:15,  Apr.  22,  1918.) 

It  is  not  essential  that  a  commissioned  war- 
rant oflicer  should  have  had  a  creditable  record 
at  all  times  for  a  period  of  six  years  from  the 
date  of  his  commission  to  entitle  him  to  the 
pay  and  allowances  of  a  lieutenant  (junior 
grade),  or  that  he  should  have  had  a  creditable 
record  at  all  times  for  a  period  of  12  years  from 
the  date  of  his  comaiission  to  entitle  him  to  the 
pay  and  allowances  of  a  lieutenant.  The  ques- 
tion as  to  whether  his  record  is  creditable  is  to 
be  determined  as  of  the  date  his  record  if  exam- 
ined by  the  board,  either  at  the  end  of  six 
years  from  the  date  of  his  coromission,  or  at  the 
end  of  12  years  fi'om  the  date  of  commisssion. 
The  question  Avhether,  considered  as  a  whole, 
his  record  is  creditable  is  one  for  the  board  to 
determine;  the  law  does  not  require  that  he 
should  have  had  six  years'  creditable  service, 
or  12  years'  creditable  service,  as  the  case  may 
be,  but  that,  at  the  end  of  six  years,  or  of  12 
years,  his  record  must  be  creditable  before  he 
can  receive  the  pay  and  allowances  of  a  lieuten- 
ant (junior  grade)  or  a  lieutenant,  as  the  case 
may  be.     (File  17789-27:15,  Apr.  22,  1918.) 

As  to  rates  of  pay  received  by  lieutenants 
(junior  grade),  and  lieutenants,  see  notes  above 
under  this  section. 

As  to  allowances  of  warrant  officers  and  com- 
missioned warrant  officers,  see  notes  to  sections 
1487  and  1558,  Revised  Statutes. 

26.  Secretaries. — See  section  1367,  Re- 
vised Statutes,  and  note  thereto. 

By  act  of  May  4,  1878  (20  Stat.,  50),  it  waa 
provided  that  "on  and  after  the  first  day  of  July, 
eighteen  hundred  and  seventy-eight,  there 
shall  be  no  appointments  made  from  civil  life 
of  secretaries  or  clerks  to  the  Admiral,  or  Vice 
Admiral,  when  on  sea  service,  commanders  of 
squadrons,  or  of  clerks  to  commanders  of  vessels; 
and  an  officer  not  above  the  grade  of  lieutenant 
shall  be  detailed  to  perform  the  duties  of  secre- 
tary to  the  Admiral  or  Vice  Admiral,  when  on 
sea  service,  and  one  not  above  the  grade  of 
master  [now  lieutenant  (junior  grade) :  see  notes 
above  under  this  section]  to  perform  the  duties 
of  clerk  to  a  rear  admiral  or  commander,  and  one 
not  above  the  grade  of  ensign  to  perform  the 
duties  of  clerk  to  a  captain,  commander,  or 
lieutenant  commander  when  afloat." 

The  pay  of  secretary  of  the  Naval  Academy 
has  been  increased  from  time  to  time  by  appro- 
priations contained  in  the  annual  naval  appro- 
priation acts.  See,  for  example,  naval  appro- 
priation act  approved  June  4,  1920  (41  Stat., 
828),  which  contains,  under  the  caption,  "Pay, 
Naval  Academy,"  the  following  item:  "Secre- 
tary of  the  Naval  Academy,  $2,750." 

The  position  of  secretary  to  the  Admiral  was 
necessarily  in  abeyance  until  the  grade  of  Ad- 
miral was  revived.  However,  when  the  grade 
of  Admiral  was  revived,  the  provisions  of  law 
relating  to  the  secretary  to  the  Admiral  became 
again  operative.  Not  being  a  conxmissioned 
officer,  his  pay  was  not  affected  by  the  Navy 
personnel  act  of  March  3,  1899.  Accordingly, 
he  is  entitled  to  a  salary  of  $2,500  per  armiun 


805 


Sec.  1556. 


PL  2.  RE  VISED  STAT  UTES . 


The  Navy. 


under  section  1550.  Revised  Statutes,  and  to 
the  allowances  of  a  lieutenant  in  the  Navy, 
under  section  13()7.     ((5  Comp.  Dec,  828.) 

See  note  to  section  VM\2,  Revised  Statutes, 
and  notes  above,  under  Ibis  section,  as  to  Ad- 
mirals and  Vice  Admirals  in  the  Navy. 

27.  Clerks  to  commanders  of  squadrons, 
©tc— See  act  of  May  4,  1878  (20  Stat.,  50), 
quoted  abov(%  under  "Secretaries." 

28.  Clerks  to  commandants  of  yards  and 
stations. — See  section  1416,  Revised  Statutes, 
and  note  thereto. 

I>y  naval  appropriation  act  of  March  3,  1909 
(35  Stat.,  754),  the  Secretary  of  the  Navy  was 
authorized  to  fix  the  pay  of  the  "clerical, 
draftinc;,  inspection,  and  messenger  force  at 
navy  yards  and  naval  stations, "  on  a  per  annum 
or  per  diem  basis,  aa  he  may  elect;  the  same  act 
repealed  "so  much  of  section  fifteen  hundred 
and  fifty -six  of  the  Revised  Statutes  as  relates 
to  j)ay  of  clerks  to  commandants  of  navy  yards 
and  naval  stations,"  and  omitted  the  specific 
provision  theretofore  made  in  the  annual  naval 
appropriation  act,  under  "Pay  of  the  Navy," 
for  such  clerks. 

29-34.  Clerks  to  paymasters,  etc. — The 
provisions  of  section  1556,  Revised  Statutes, 
fixing  the  pay  of  clerks  to  paymasters,  was  re- 
pealed by  the  act  of  May  13,  1908  (35  Stat.,  127), 
which  act  substituted  for  the  pay  specified  in 
said  section  a  provision  that  "all  paymasters' 
clerks  shall,  while  on  duty,  receive  the  same 
pay  and  allowances  as  warrant  officers  of  like 
length  of  ser\dce  in  the  Navy  " ;  which  said  pro- 
vision in  the  act  of  May  13,  1908,  was  amended 
by  act  of  June  24,  1910  (36  Stat.,  606),  so  as  to 
read  that  "all  paymasters'  clerks  shall,  while 
holding  appointment  in  accoi'dance  ^\'ith  law, 
receive  the  same  pay  and  allowances  and  have 
the  same  rights  of  retirement  as  warrant  officers 
of  Uke  length  of  service  in  the  Navy."  The 
saving  clause  in  said  act  of  May  13,  1908,  that 
"nothing  herein  shall  be  construed  so  as  to 
reduce  the  pay  or  allowances  now  authorized 
by  law  for  any  commissioned,  warrant,  or  ap- 
pointed officer  or  enhsted  man  of  the  active  or 
retired  lists  of  the  Navy,"  did  not  apply  to  a 
paymaster's  clerk  appointed  after  the  enact- 
ment of  that  act;  accordingly,  a  clerk  to  the 
paymaster  at  the  navy  yard,  Mare  Island,  who 
was  appointed  after  May  13,  1908,  was  held  not 
entitled  to  the  pay  provided  by  section  1556, 
Revised  Statutes,  for  that  position,  but  w^as 
correctly  allowed  pay  at  the  lower  rate  provided 
by  law  for  a  warrant  officer  of  like  length  of 
service  in  the  Navy.  (Jones  v.  U.  S.,  50  Ct. 
Cls.,  344.) 

By  act  of  March  3,  1915,  the  grades  of  acting 
pay  clerk,  pay  clerk,  and  chief  pay  clerk  were 
established,  and  provision  was  made  for  the 
appointment  of  all  paymasters'  clerks  then  in 
the  service  to  one  of  said  grades.  As  to  the  pay 
and  allowances  of  acting  pay  clerks,  pay  clerks, 
and  chief  pay  clerks,  see  notes  above,  under 
"warrant  officers,  acting  warrant  officers,  and 
commissioned  warrant  officers." 

35.  Cadet  eng^eers. — ^The  appointment 
of  cadet  engineers  was  prohibited  by  act  of 
August  5,  1882  (22  Stat.,  285).  See  note  to 
section  1522,  Revised  Statutes. 

36.  Dental  Corps;  and  Nurse  Corps 
(Female).— By   act  of  August  29,    1916    (39 


Stat.,  573,  574),  as  amended  and  reenacted  by 
act  of  July  1,  1918  (40  Stat.,  708-710),  it  was 
provided  that  officers  of  the  Dental  Corps 
(assistant  dental  surgeons,  passed  assistant 
dental  surgeons,  and  dental  surgeons)  shall 
have  the  rank  of  lieutenant  (junior  grade), 
lieutenant,  and  lieutenant  commander,  "and 
shall  receive  the  same  pay  and  allowances  as 
officers  of  corresponding  rank  and  length  of 
service  in  the  Naval  Medical  Corps  up  to  and 
including  the  rank  of  lieutenant  commander '' 
and  that  "dental  surgeons  shall  be  eligible  for 
advancement  in  pay  and  allowances,  but  not 
in  rank,  up  to-and  including  the  pay  and  allow- 
ances of  commander  and  captain,  subject  to 
such  examinations  as  the  Secretary  of  the 
Navy  may  prescribe,  except  that  the  num])er 
of  dental  surgeons  with  the  pay  and  allowances 
of  captain  shall  not  exceed  four  and  one-half 
per  centum  and  the  number  of  dental  surgeons 
with  the  pay  and  allowances  of  commander 
shall  not  exceed  eight  per  centum  of  the  total 
authorized  number  of  dental  officers:  Provided 
further,  That  dental  surgeons  shall  be  eligible 
for  advancement  to  the  pay  and  allowances  of 
commander  and  captain  when  their  total 
active  service  as  dental  officers  in  the  Navy  is 
such  that  if  rendered  as  officers  of  the  Naval 
Medical  Corps,  it  would  place  them  in  the  list 
of  medical  officers  with  the  pay  and  allowances 
of  commander  or  captain,  as  the  case  may  be." 

By  the  same  act  of  August  29,  1916,  it  was 
provided  that ' '  the  senior  dental  officer  now  at 
the  United  States  Naval  Academy"  shall  have 
* '  the  grade  of  dental  surgeon  and  the  rank,  pay, 
and  allowances  of  lieutenant  commander.' 

By  the  same  it  was  further  pro\dded  that 
"nothing  herein  contained  shall  be  construed 
to  legislate  out  of  the  service  any  ofiicer  now  in 
the  medical  department  of  the  Navy  or  to  re- 
duce the  rank,  pay,  or  allowances  now  author- 
ized by  law  for  any  officer  of  the  Navy." 

By  act  of  May  18,  1920  (41  Stat.,  602),  the 
pay  of  "acting  assistant  dental  surgeons  in  the 
Navy"  was  increased  $600  per  annum,  "in  ad- 
dition to  all  pay  and  allowances  now  allowed 
by  law,"  such  increase  to  commence  January 
1,  1920,  and  to  remain  effective  "until  the  close 
of  the  fiscal  year  ending  June  30,  1922."  (The 
Navy  Register  of  January  1,  1920,  shows  only 
one  "acting  assistant  dental  surgeon,"  being 
an  officer  appointed  under  the  proAdsions  of  an 
act  of  Congress  approved  August  22,  1912  (37 
Stat.,  344),  which  act  was  superseded  by  the 
act  of  August  29,  1916,  above  cited,  containing 
a  saving  clause  with  reference  to  officers  then 
in  the  medical  department  not  being  thereby 
legislated  out  of  the  service.) 

The  advancement  of  dental  officers  to  the  pay 
and  allowances  of  commander  and  captain 
should  be  by  the  same  method  that  medical 
officers  are  promoted;  i.  e.,  by  selection  by  the 
same  board  of  officers  as  selects  medical 
officers  for  advancement  to  the  ranks  of  com- 
mander and  captain.  No  other  board  is  quali- 
fied to  determine  whether  the  ser\dce  of  dental 
officers  "is  such  that  if  rendered  as  officers  of 
the  Naval  Medical  Corps,  it  would  place  them 
in  the  list  of  medical  officers  with  the  pay  and 
allowances  of  commander  or  captain,  as  the 
case  may  be."  (File  2650^315:2,  Aug.  29, 
1919.) 


806 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1556. 


Nurse  Corps,  Female. — The  superintendent, 
chief  nurses,  and  nurses  of  the  Nurse  Corps 
(Female),  U.  S.  Navy,  shall  respectively  re- 
ceive the  same  pay,  allowances,  emoluments, 
and  privileges  as  now  or  hereafter  provided  by 
or  in  pursuance  of  law  for  the  Nurse  Corps 
(Female)  of  the  .irmy.  (Act  May  13,  1908,  35 
Stat.,  146.)  The  designation  of  the  "Nurse 
Corps  (Female) "  of  the  Army  was  changed  to 
"the  Army  Nurse  Corps"  by  act  of  July  9, 1918, 
Chapter  V,  section  1  (40  Stat.,  879),  which  said 
act  also  made  pro\asion  as  to  the  pay  and  al- 
lowances of  the  Army  Nurse  Corps.  (See  note 
below.) 

Reser\^e  nurses  of  the  Nurse  Corps  (Female) , 
U.  S.  Naw,  may  be  assigned  to  active  duty 
when  the  necessities  of  the  service  demand  and 
and  when  on  such  duty  shall  receive  the  pay 
and  allowances  of  nurses;  but  sliall  receive  no 
compensation  except  when  on  active  duty. 
(Act  May  13,  1908,  35  Stat.,  146.) 

Members  of  the  Nurse  Corps  (Female),  U.  S. 
Navy,  shall  hereafter  be  paid  the  same  commu- 
tation of  quarters  as  is  or  may  be  allowed  mem- 
bers of  the  Nurse  Corps  of  the  Army.  (Act 
June  15, 1917,  40  Stat.,  209.)  It  had  previously 
been  pro\dded  by  act  of  June  24,  1910  (36  Stat. , 
606),  that  the  Secretary  of  the  Nax-y,  in  his 
discretion,  is  authorized  to  allow  members  of 
the  Nurse  Corps  (Female)  of  the  Na\'y  $15  per 
month  in  lieu  of  quarters  when  Government 
quarters  are  not  available. 

The  annual  pay  of  members  of  the  Army 
Nurse  Corps  was  fixed  by  act  of  July  9,  1918, 
Chapter  V,  section  4  (40  Stat.,  879),  as  amended 
by  act  of  February  28,  1919  (40  Stat.,  1211), 
as  follows:  Superintendent,  $2,400;  assistant 
superintendents  and  directors,  $1,800;  assistant 
directors,  $1,500;  chief  nurses,  $360  in  addition 
to  the  pay  of  nurses;  nurses,  $720  for  first  three 
years'  ser\dce,  $780  for  second  three  years'  ser- 
vice, $840  for  third  three  years'  service,  $900  for 
fourth  three  years'  ser\ice,  $960  after  12  years' 
ser\ice  in  said  corps  (including  time  of  service 
as  contract  nm'ses);  reserve  nurses,  when  on 
active  duty  will  receive  the  same  pay  as 
nurses  who  have  served  in  the  corps  for  periods 
corresponding  to  the  full  period  of  their  active 
service;  all  members  of  said  corps,  in  addition 
to  the  foregoing,  $10  per  month  when  ser\ing 
beyond  the  contiilental  limits  of  the  United 
States    (excepting   Porto    Rico   and    Hawaii). 

By  act  of  May  18,  1920,  section  4  (41  Stat., 
602),  it  was  pro\ided  that  "Commercing  Janu- 
ary 1,  1920,  the  pay  *  *  *  of  meml^ers 
of  the  Female  Nurse  Corps  of  the  Army  and 
Navy  is  hereby  increased  20  per  centum;" 
and  by  section  13  of  the  same  act  (41  Stat., 
604)  it  was  pro\ided  that  such  increase  "shall 
remain  effective  until  the  close  of  the  fiscal 
year  ending  June  30,  1922,  unless  sooner 
amended  or  repealed. " 

Meml^ers  of  the  Army  Nurse  Corps  shall 
be  entitled  to  cumulative  leave  of  absence 
with  pay  at  the  rate  of  30  days  for  each  calen- 
dar year  of  service  in  said  corps,  not  exceed- 
ing, however,  120  days  at  one  time;  and  in 
addition  thereto  sick  leave  not  exceeding  30  days 
in  any  one  calendar  year  in  cases  of  illness  or 
injm-y  incurred  in  the  line  of  dutv.  (Act  July  9, 
1918,'Chapter  V,  section  5,  40  Stat.,  879.) 


Where  a  member  of  the  Nurse  Corps  (Fe- 
male) was  upon  her  own  request  discharged, 
but  the  commanding  officer  erroneously  is- 
sued a  discharge  stating  that  same  was  to  take 
effect  from  date  thereof,  contrary  to  the  author- 
ization fi'om  the  Bureau  of  Medicine  and 
Siu-gery  as  appro.ved  by  the  Secretary  of  the 
Navy  for  her  discharge  to  take  effect  upon 
the  expiration  of  74  days'  accrued  leave  of 
absence,  held,  that  the  words  "from  this  date" 
in  the  discharge  must  be  disregarded  as  un- 
authorized and  ineffective;  that  the  dis- 
charge was  otherwise  legal  and  should  be  re- 
garded as  becoming  effective  on  the  date 
specified  in  her  application  therefor  as  ap- 
proved by  the  Surgeon  General,  the  Bureau 
of  Navigation,  and  the  Secretary  of  the  Navy; 
that  if  said  nurse  was  absent  from  duty  in  the 
meantime,  such  absence  was  by  leave  of  the 
head  of  the  department  and  she  is  accord- 
ingly entitled  to  pay  for  such  period  of  author- 
ized absence.  (File  26477-87,  Feb.  6,  1919, 
citing  Reinhard's  Case,    10  Ct.   Cls.,   282.) 

The  act  of  July  9,  1918,  relating  to  cumida- 
tive  leaves  of  absence,  entitles  members  of 
the  Niu-se  Corps  (Female)  to  final  leave,  to 
the  amount  accumulated  and  unused,  not  to 
exceed  120  days,  prior  to  honorable  discharge. 
(File  26477-87,  Feb.  6,  1919,  citing  23  Comp. 
Dec,  192,  197;  9  Comp.  Dec,  606;  Hurlburt 
V.  U.  S,,  30  Ct.  Cls.,  16:  and  U.  S.  v.  Barringer, 
188  U.  S.,  577,  reversing  Barringer  v.  U.  S., 
37  Ct.  Cls.,  1.) 

It  would  seem  that  if  cumulative  leave  of 
absence  were  refused  prior  to  final  discharge, 
the  niu-se  concerned  would  be  entitled  to 
receive  pay  for  such  leave  due  but  not  granted; 
however,  this  question  not  decided,  but 
should  be  presented  to  the  accounting  officers 
if  such  a  case  should  occur.  (File  26477-87, 
Feb.  6,  1919.) 

The  question  of  granting  leave  to  members 
of  the  Nurse  Corps  (Female)  presents  a  matter 
coming  under  the  jurisdiction  of  the  Navy 
Department  and  not  under  the  jurisdiction 
of  the  Comptroller  of  the  Treasury.  (File 
26477-102,  Feb.  19,  1921.) 

Members  of  the  Army  Nurse  Corps  shall 
receive  transportation  and  necessary  ex- 
penses when  traveling  under  order  and  such 
allowances  of  quarters  and  subsistence  and, 
during  illness,  such  medical  care  as  may  be 
prescribed  in  regulations  by  the  Secretary 
of  War;  and  when  at  places  where  no  public 
quarters  are  available,  commutation  in  lieu 
thereof,  and  of  heat  and  light  therefor,  at 
such  rates  and  upon  such  conditions  as  are 
now  or  shall  hereafter  be  provided  by  law. 
(Act  July  9,  1918,  Chap.  V,  sec.  6,  40  Stat., 
879.)  It  had  previously  been  provided  by 
act  of  August  29,  1916  (39  Stat.,  626),  that 
the  superintendent  of  the  Nurse  Corps  (Fe- 
male) of  the  Army  should  receive  such  allow- 
ances of  quarters,  subsistence,  and  medical 
care  during  illness  as  may  be  prescribed  in 
regulations  by  the  Secretary  of  War. 

By  Army  appropriation  act  of  May  22,  1917 
(40  Stat.,  50),  pro\ision  was  made  for  com- 
mutation of  rations  for  members  of  the  Nurse 
Corps  (Female)  while  on  duty  in  hospital 
at  40  cents  per  ration  for  the  ensuing  fiscal 


807 


Sec.  1556. 


PL  2.  REVISED  STATUTES.. 


The  Navy. 


year;  by  Army  appropriation  act  of  June  5, 
1920  (41  Stat..  95(1),  appropriation  was  made 
for  commutation  in  lieu  of  rations  for  members 
of  the  Army  Nurse  t'orps  while  on  duty  in 
hospital,  without  specifying  the  amount  of 
such  commutation. 

By  act  of  June  4,  1920,  section  10  (41  Stat., 
767),  it  was  provided  that  "hereafter  the 
members  of  the  Army  Nurse  Corps  shall  have 
relative  rank  as  follows:  The  superintendent 
shall  have  the  relative  rank  of  major;  the  as- 
sistant superintendents,  director,  and  assist- 
ant directors,  the  relative  rank  of  captain; 
chief  nurses,  the  relative  rank  of  first  lieu- 
tenant; head  niu-ses  and  muses,  the  relative 
rank  of  second  lieutenant;  and  as  regards 
medical  and  sanitary  matters  and  all  other 
work  witliin  the  line  of  their  professional 
duties  shall  have  authority  in  and  about 
military  hospitals  next  after  the  officers  of 
the  Medical  Department.  The  Secretary  of 
War  shall  make  the  necessary  regulations 
l^rescribing  the  rights  and  privileges  con- 
ferred   by   such   relative   rank." 

The  regulations  made  by  the  Secretary 
of  War  prescribing  the  "rights  and  privileges" 
confeiTed  upon  nurses  by  the  relative  rank 
given  them  by  the  act  of  June  4,  1920,  were 
contained  in  War  Department  General  Orders, 
No.  49,  of  August  14,  1920,  which  provided, 
among  other  things,  the  following:  "8. 
Nurses  are  entitled  to  the  same  allowances 
and  privileges,  except  mileage,  as  are  pre- 
scribed for  commissioned  officers  of  grades 
corresponding  to  their  relative  rank,  viz: 
Commutation  of  quarters  when  quarters  in 
kind  are  not  available;  commutation  of  heat 
and  light;  purchase  pri\dleges;  instance 
privileges;  gratuities;  and  in  general  all  such 
personal  pii\T.leges  and  perquisites,  not 
specifically  denied  them,  as  go  with  commis- 
sioned rank  and  are  customarily  enjoyed  by 
commissioned  officers.  9.  Pay  and  allowances 
of  nurses  are  set  forth  in  Chapter  V  of  the 
act  of  Congress  approved  July  8,  1918.  (40 
Stat.,  845,  879,  Bui.  No.   43,  W.  D.,  1918.)" 

Payment  of  compensation  to  beneficiaries 
of  nm'ses  who  die  while  on  the  active  list  of 
the  Regular  Navy  from  wounds  or  disease 
not  the  result  of  their  own  misconduct,  is 
provided  for  by  act  of  June  4,  1920.  (41  Stat., 
824.) 

37.  Naval  Reserve  Force. — Pay  for  active 
duty.— By  act  of  August  29,  1916  (39  Stat.,  588), 
which  created  the  Naval  Reserve  Force,  it  was 
pro\'ided  that  "all  members  of  the  Naval  Re- 
serve Force  shall,  when  actively  employed  as 
set  forth  in  this  act,  be  entitled  to  the  same  pay, 
allowances,  gratuities,  and  other  emoluments 
as  officers  and  enlisted  men  of  the  naval  ser-\'ice 
on  active  duty  of  corresponding  rank  or  rating 
and  of  the  same  length  of  service."  This  pro- 
vision was  superseded  by  the  following  clause 
in  the  act  of  July  1,  1918  (40  Stat.,  712):  "Mem- 
bers ot  the  Naval  Reserve  Force  when  employed 
in  active  service,  ashore  or  afloat,  under  the 
Naxy  Department  shall  receive  the  same  pay 
and  allowances  as  received  by  the  officers  and 
enlisted  men  of  the  regular  Navy  of  the  same 
rank,  grades,  or  ratings  and  of  the  same  length 
of  service,  which  shall  include  service  in  the 
Navy    Marine  Corps,   Naval   Reserv^e  Force, 


Naval  Militia,  National  Naval  Volunteers,  or 
Marine  Corps  Reserve." 

An  officer  of  the  Naval  Resen-e  Force,  as- 
signed to  active  duty,  who  is  thereafter  de- 
tached from  such  duty  with  direction  to  await 
further  orders,  is  not  thereby  returned  to  a 
resen'e  status,  but  is  entitled  to  the  same  pay 
that  an  ofiicer  of  similar  rank  and  length  of 
servace  in  the  Regular  Navy  would  be  entitled 
to  while  awaiting  orders  as  dii'ected  by  the 
Navy  Department.  The  words  "actively  em- 
ployed," and  "active  service,"  as  used  in  the 
statute,  refer  to  service  in  the  Na\'y  under  the 
call  of  the  President  in  time  of  war  or  national 
emergency,  as  distinguished  from  service  in 
reserve.  In  this  case  the  officer  was  not  dis- 
charged from  active  duty  in  the  sense  of  being 
returned  to  a  reserve  status.  The  order  of  de- 
tachment shows  conclusively  that  he  was  to 
hold  himself  in  readiness  for  new  duty.  (24 
Comp.  Dec.,  626.) 

The  act  of  August  29,  1916,  pro\dding  that 
members  of  the  Naval  Reserve  Force  when 
actively  employed  shall  receive  the  same  pay 
and  allowances  as  officers  and  enlisted  men  of 
the  Regular  Navy  of  corresponding  rank  or 
rating  and  of  the  same  length  of  service,  does 
not  limit  the  pay  and  allowances  of  naval 
reservdsts  when  in  active  ser\'ice  to  the  pay  and 
allowances  provided  for  members  of  the  Regular 
Navy  at  the  time  said  act  of  August  29,  1916, 
was  approved;  but  entitles  them  to  the  same 
pay  and  allowances  as  are  pro\'ided  by  law  for 
members  of  the  Regular  Navy  at  the  time  their 
active  service  with  the  Navy  is  rendered;  ac- 
cordingly enlisted  personnel  of  the  NaA'al  Re- 
serve Force  are  entitled  while  in  active  service 
to  the  increase  of  pay  pro\'ided  in  the  act  of 
May  22, 1917,  for  members  of  the  Regular  Na\'j'. 
(23  Comp.  Dec,  773.) 

Members  of  the  Naval  Reserve  Force  given 
provisional  rank  as  officers  of  the  Supply  Coi-ps, 
but  who  have  not  been  required  to  execute  a 
bond  as  required  of  supply  officers  in  the  Navy 
by  sections  1383  and  1560,  Re\'ised  Statutes, 
are  nevertheless  entitled  to  receive  the  pay  and 
allowances  of  theii"  rank  on  the  acti^-e  list  during 
the  period  they  may  be  assigned  to  duty  for 
training  with  their  consent,  when  not  required 
to  make  disbursements  of  public  money  nor 
charged  with  accountability  or  responsibility 
for  any  Government  property.  (27  Comp. 
Dec,  228.) 

An  officer  of  the  Fleet  Naval  Reserve,  when 
on  active  duty  in  time  of  war  or  national  emer- 
gency, placed  in  a  hospital  for  treatment,  is 
entitled  to  active  duty  pay  wliile  in  hospital 
under  the  same  circumstances  and  subject  to 
the  same  limitations  under  which  officers  of  the 
Regular  Navy  would  be  entitled.  (23  Comp. 
Dec,  651;  see  also,  24  Comp.  Dec,  626.) 

Members  of  the  Fleet  Naval  Reserve  de- 
tached from  active  duty  (to  which  they  had 
been  3,ssigned  for  training  on  board  ship),  and 
transferred  to  a  naval  hospital  for  treatment, 
are  not  entitled  to  active  service  pay  thereafter, 
except  for  time  necessary  to  tra^'el  to  their 
homes.  (Comp.  Dec,  Feb.  23,  1917,  192  S. 
and  A.  Memo.,  4157,  distinguishing  Comp. 
Dec,  Aug.  3,  1916,  186  S.  and  A.  Memo.,  4031, 
in  which  it  was  held  that  a  member  of  the 
former  Naval  Reser\-e,  created  by  the  act  of 


808 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1556. 


March  3,  1915,  38  Stat.,  941,  was  entitled  to 
active  duty  pay  during  a  period  when  he  was 
under  treatment  in  a  hospital,  in  that  the  en- 
listed man  in  the  latter  case  was  not  detached 
from  his  ship  and  sent  to  a  hospital  for  tempo- 
rary treatment.) 

A  member  of  the  Naval  Reserve  Force  in  an 
enlisted  rating  who,  after  undergoing  treatiijent 
in  a  naval  hospital,  is  ordered  on  sick  leave  of 
absence  is  in  a  duty  status  and  entitled  to  the 
per  diem  allowance  for  subsistence  for  such 
period.     (26  Comp.  Dec,  47.) 

"An  oflicer  in  the  Naval  Reserve  Force  serv- 
ing at  sea,  who  is  gi-anted  leave  of  absence,  is 
entitled  to  full  active  duty  pay  for  the  period 
of  absence."  (24  Comp.  Dec,  626,  627.  See 
also  21  Comp.  Dec,  628,  holding  that  an  officer 
of  the  former  ]\Iedical  Reserve  Corps  of  the 
Navy,  on  authorized  leave  granted  wliile  on 
active  duty,  was  entitled  to  pay  for  the  period 
of  such  leave,  pro\T.ded  the  leave  granted  was 
not  in  excess  of  the  leave  to  the  credit  of  the 
officer  at  the  time  he  availed  himself  of  it.) 

An  officer  of  the  Naval  Reserve  Force  on 
active  duty,  who  formerly  served  in  the  Navy, 
is  entitled  to  be  credited  for  pay  purposes  %vith 
the  five  years'  constructive  8er\ice  which  was 
credited  to  him,  under  the  act  of  March  3,  1899 
(30  Stat.,  1007),  upon  his  original  appointment 
to  the  Navy  from  ci\il  Ufe.  (Comp.  Dec,  Feb. 
21,  1918,  204  S.  and  A.  Memo.,  4505;  see  also, 
24  Comp.  Dec,  168;  24  Comp.  Dec,  629.) 

Officers  of  the  Naval  Auxiliary  Reserve  of  the 
Naval  Reserve  Force  are  not  entitled  to  lon- 
ge^dty  increase  for  service  rendered  in  the 
Naval  Auxiliary  Service,  even  though  they 
were  entitled  to  such  increase  while  members 
of  said  Auxiliary  8er\ice.  (Comp.  Dec,  June 
27, 1917, 196  S.  and  A.  Memo.,  4292.) 

In  determining  the  amount  of  continuous- 
service  pay  to  which  members  of  the  Naval 
Reserve  Force  in  enlisted  ratings  are  entitled, 
under  the  act  of  July  1,  1918,  by  reason  of_ naval 
miUtia  service,  all  legal  active  service  in  en- 
listments which  contain  the  elements  of  con- 
tinuous service  prescribed  for  men  in  the  regu- 
lar Navy  should  be  counted.  (25  Comp.  Dec, 
154.) 

Members  of  the  Naval  Reserve  Force  who  are 
citizens  of  the  United  States  are  entitled  to  the 
benefits  of  General  Order  No.  34,  Navy  Depart- 
ment, issued  under  Executive  order  of  Novem- 
ber 27,  1906  (later  embodied  in  art.  4427,  par. 
25,  Navy  Regs.,  1913),  including  in  the  compu- 
tation thereunder  ser\dce  in  the  naval  militia 
under  reenUstments  since  November  27,  1906. 
(25  Comp.  Dec,  154.) 

The  National  Guard  not  being  one  of  the  or- 
ganizations enumerated  in  the  act  of  July  1, 
1918,  for  the  service  in  which  a  member  of  the 
Naval  Reserve  Force  in  active  service  is  en- 
titled to  credit,  and  not  being  comprehended  in 
the  term,  "Naval  Militia,  "  which  is  included, 
an  officer  of  the  Naval  Reserve  Force  who  has 
had  legal  active  service  in  the  National  Guard 
to  his  credit  is  not  entitled  to  longevity  pay 
therefor.    (25  Comp.  Dec,  735.) 

Enlisted  men  of  the  Regular  Navy  who,  upon 
the  expiration  of  enUstment,  are  transferred  to 
the  Fleet  Naval  Reserve  at  their  request,  are 
entitled  aa  members  of  the  Naval  Reserve 
Force,  while  on  active  duty,  to  continuous- 


service  pay  and  pay  under  General  Order  No.  34 
(art.  4427,  par.  25,  Navy  Regs.,  1913),  the  same 
as  if  they  had  accepted  discharge  from  the 
Navy  at  the  expiration  of  enlistment  and  had 
thereafter  enrolled  in  the  Fleet  Naval  Reserve; 
but  said  enlisted  men  are  not  entiled  upon 
such  transfer  to  the  honomble  discharge  gra- 
tuity.    (25  Comp.  Dec,  186.) 

Retainer  pay. — Retainer  pay  for  members  of 
the  Naval  Reserve  Force  is  based  solely  on 
consideration  of  an  obligation  assumed  by 
them  "to  serve  in  the  Navy  in  time  of  war  or 
during  the  existence  of  a  national  emergency 
declared  by  the  President. "  It  is  not  com- 
pensation for  services  rendered.  (26  Comp. 
Dec,  884.) 

"When  not  actively  employed  in  the  Navy, 
members  of  the  Naval  Reserve  Force  shall  not 
be  entitled  to  any  pay,  bounty,  gratuity,  or 
pension  except  as  expressly  provided  for  mem- 
bers of  the  Naval  Reserve  Force  by  the  pro- 
visions of  this  act. "  (Act  Aug.  29,  1916,  39 
Stat.,  588.) 

An  enrolled  member  of  the  Naval  Reserve 
Force  is  not  entitled  to  retainer  pay  for  any 
period  subsequent  to  the  expiration  of  his  term 
of  enrollment  and  prior  to  reenrollment,  al- 
though he  may  be  continued  on  active  duty 
during  such  period.     (26  Comp.  Dec,  900.) 

"Retainer  pay  shall  be  in  adcUtion  to  any 
pay  to  which  a  member  may  be  entitled  by 
reason  of  active  service. "  (Act  Aug.  29,  1916, 
39  Stat..  588.) 

"  In  time  of  peace  no  member  of  any  class  of 
the  Naval  Reserve  Force  shall  be  entitled  to 
retainer  pay  when  assigned  to  active  duty  for 
purposes  other  than  training."  (Act  July  1, 
1918,  40  Stat.,  711.) 

"Retainer  pay  provided  by  existing  law  shall 
not  be  paid  to  any  member  of  the  Naval  Reserve 
Force  who  fails  to  train  as  pro^ided  by  law 
during  the  year  in  which  he  fails  to  train." 
(Act  June  4,  1920,  sec  1,  41  Stat.,  824.) 

"Hereafter  the  Secretary  of  the  Navy  may, 
in  his  discretion,  withhold  any  part  or  all  of  the 
retainer  pay  which  may  be  due  to  a  member  of 
the  Naval  Reserve  Force  where  such  members 
fail  to  perform  such  duty  as  may  be  prescribed 
by  law  for  the  maintenance  of  the  efficiency  of 
the  Naval  Reserve  Force:  Provided,  That  any 
money  so  withheld  shall  be  credited  to  the 
appropriation  for  organizing  and  administering 
the  Naval  Reserve  Force  to  l)e  used  for  any 
purpose  that  the  Secretary  of  the  Navy  may 
consider  proper  to  increase  the  efficiency  of  the 
Naval  Reserve  Force."  (Act  June  4,  1920, 
sec.  9,41  Stat.,  837.) 

"  Retainer  pay  shall  only  be  paid  to  members 
of  the  Naval  Reserve  Force  upon  their  making 
such  reports  concerning  their  movements  and 
occupations  as  may  be  required  by  the  Secre- 
tary of  the  Navy."  (Act  Aug.  29,  1916,  39 
Stat.,  588.) 

"Any  pay  which  may  be  due  any  member  of 
the  Fleet  Naval  Reserve  shall  be  forfeited  when 
so  ordered  by  the  Secretary  of  the  Navy  upon 
the  failure,  under  such  conditions  as  may  be 
prescribed  by  the  Secretary  of  the  Navy,  of  such 
man  to  report  for  inspection.  "  (Act  Aug.  29, 
1916,  39  Stat.,  590.) 

"Retainer  pay  shall  be  paid  annually  or  at 
shorter  intervals,  as  the  Secretary  of  the  Navy, 


809 


Sec.  1556. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


ill  his  (liscrotion,  may  direct. "  (Act  Aug.  29, 
l'Jl(i,3'J  Stat.,  588.) 

"The  retainer  pay  of  all  members  of  the  Naval 
Reserve  Force,  except  the  Volunteer  Naval 
Reserve,  while  enrolled  in  a  jjrovisional  rank 
or  rating,  and  until  such  time  as  they  shall 
have  been  coniirmed  in  such  rank  or  rating, 
shall  be  $12  per  annum.  Thereafter,  the 
retainer  pay  shall  be  that  prescribed  for  mem- 
bers in  the  various  classes."  (Act  Aug.  29, 
1916,  39  Stat.,  588.) 

"The  Volunteer  Naval  Reserve  shall  be  com- 
posed of  those  members  of  the  Naval  Reserve 
Force  who  are  eligible  for  membersliip  in  any 
one  of  the  other  classes  of  the  Naval  Reserve 
Force,  and  who  obligate  themselves  to  serve  in 
the  Navy  in  any  one  of  said  classes  without 
retainer  pay  and  uniform  gratuity  in  time  of 
peace."     (Act  Aug.  29,  191(5,  39  Stat.,  592.) 

"The  retainer  pay  of  the  enrolled  men  of  the 
Fleet  Naval  Reserve  shall  be  the  same  as  for 
the  enrolled  men  of  the  Naval  Reserve  and  shall 
be  computed  in  like  manner:  Provided,  That 
nothing  herein  shall  operate  to  reduce  the  re- 
tainer pay  allowed  by  existing  law  to  enlisted 
men  who,  after  sixteen  years  or  more  of  naval 
eer\-ice,  ai'e  transferred  to  the  Fleet  Naval 
Reserve."     (Act  July  1,  1918,  40  Stat.,  710.) 

' '  The  annual  retainer  pay  of  members  of  the 
Naval  Reserve  Force,  except  officers  in  the 
Naval  Auxiliary  Reser\^e  and  transferred  mem- 
bers of  the  Fleet  Naval  Reserve,  after  confirma- 
tion in  rank;  grade,  or  rating,  shall  be  the 
equivalent  of  two  months'  base  pay  of  the  cor- 
responding rank,  grade,  or  rating  in  the  Navy, 
but  the  highest  base  pay  upon  wliich  the  re- 
tainer pay  of  officers  of  the  Naval  Reserve  Force 
shall  be  computed  shall  not  be  greater  than  the 
base  pay  of  a  lieutenant  commander."  (Act 
Julyl,  1918,  40  Stat.,  710.) 

' '  The  annual  retaiaer  pay  of  members  in  this 
class  [Naval  Auxiliary  Reserve]  after  confirma- 
tion in  rank  or  rating  shall  be  for  officers,  one 
month's  base  pay  of  the  corresponding  rank  in 
the  Navy."     (Act  Aug.  29,  1916,  39  Stat.,  592.) 

"Members  of  the  Fleet  Naval  Reserve  who 
have,  when  transferred  to  the  Fleet  Naval  Re- 
serve, completed  naval  service  of  sixteen  or 
twenty  or  more  years  shall  be  paid  a  retainer  at 
the  rate  of  one-third  and  one-half,  respectively, 
of  the  base  pay  they  were  receiving  at  the  close 
of  their  last  naA'al  service  plus  all  permanent 
additions  thereto:  Provided,  That  the  pay 
authorized  in  this  paragraph  as  a  retainer  shall 
be  increased  ten  per  centum  for  all  men  who 
may  be  credited  with  extraordinary  heroism  in 
the  line  of  duty  or  whose  average  marks  in  con- 
duct for  twenty  years  or  more  shall  not  be  less 
than  ninety-five  per  centum  of  the  maxi- 
mum."    (Act  Aug.  29,  1916,  39  Stat.,  590.) 

Upon  original  enrollment  members  of  the 
Fleet  Naval  Reserve  enrolled  in  enlisted  ratings 
are  entitled  to  retainer  pay  computed  on  the 
rating  given  them  at  the  date  of  such  original 
enrollment.  The  law  specifically  exempts 
members  of  the  Fleet  Naval  Reserve  from  the 
requirement  that  they  be  given  a  provisional 
rating  upon  first  enrollment,  and  in  actual 
operation  such  members  are,  by  direction  of 
the  Navy  Department,  presumed  to  be  given 
a  confirmed  rating.  As  enrolled  members  of 
the  Fleet  Naval  Reserve  are  given  a  confirmed 


rating  upon  enrollment,  the  law  authorizing 
"after  confirmation"'  a  retainer  pay  to  be 
computed  on  a  basis  of  "the  equivalent  of  two 
months'  base  pay"  grants  to  said  members  the 
right  to  have  retainer  pay  computed  on  the 
basis  of  two  months'  base  pay  of  the  rating  in 
which  enrolled.     (25  Comp.  Dec,  350.) 

A  former  ensign  in  the  Navy  enrolled  in  the 
Fleet  Naval  Reserve  on  May  29,  1918,  with  the 
l)rovisional  rank  of  ensign,  and  thereafter,  on 
November  26,  1919,  issued  a  commissioned  and 
confirmed  rank  of  ensign  from  May  29,  1918, 
date  of  enrollment,  is  entitled  to  retainer  pay 
based  wpon  such  confirmed  rank  from  the  date 
of  his  em-ollment,  and  not  merely  from  the  date 
that  he  established  liis  qualifications  for  such 
confirmed  rank.     (26  Comp.  Dec,  758.) 

A  former  midshipman  in  the  Regular  Navy 
who  was  enrolled  in  the  Fleet  Naval  Reserv^e 
with  the  pro^visional  rank  of  ensign  on  January 
15,  1918,  and  thereafter,  on  November  26,  1919, 
was  issued  a  commission  in  the  confirmed  rank 
of  ensign  from  January  15,  1918  (date  of  enroll- 
ment), is  entitled  to  retainer  pay  based  upon 
such  confirmed  rank  only  from  the  date  that  the 
board,  duly  appointed  for  that  purpose,  passed 
and  reported  upon  his  qualifications  for  con- 
firmation, which  in  this  case  was  October  1, 
1919.     (26  Comp.  Dec,  668.) 

A  member  of  the  Naval  Reserve  Force  hold- 
ing a  confirmed  rank  or  rating,  who  is  promoted 
to  a  provisional  rank,  continues  to  be  entitled 
to  the  retainer  pay  based  on  the  confirmed  rat- 
ing until  the  ternunation  of  the  enrollment 
period  in  which  received,  but  upon  reenroll- 
ment  in  the  pro\dsional  rank  which  he  held  at 
the  termination  of  his  last  enrollment  period  he 
loses  the  right  to  receive  retainer  pay  based  on 
the  former  confirmed  rating  unless  again  ap- 
pointed thereto,  and  is  entitled  only  to  retainer 
pay  based  on  the  pro\'isional  rank  in  which 
reenrolled.  If  subsequent  to  liis  reenrollment 
he  is  again  given  his  former  confirmed  rating, 
to  date  from  his  reem-ollment,  he  will  be  en- 
titled to  retainer  pay  based  on  such  confirmed 
rating  from  said  date.     (27  Comp.  Dec,  82.) 

Upon  promotion  to  a  provisional  rating, 
members  of  the  Fleet  Naval  Reser-\'e  enrolled 
in  enlisted  ratings  are  entitled,  under  the  act 
of  July  1,  1918,  to  retainer  pay  computed  on  the 
confirmed  rating  given  them  at  date  of  enroll- 
ment. If  promotion  be  to  a  confirmed  rating, 
retainer  pay  should  be  computed  on  the  basis 
of  the  confirmed  rating  thereby  acquired.  (25 
Comp.  Dec,  350.) 

Members  of  the  Fleet  Naval  Reserve,  upon 
advancement  from  one  provisional  or  confirmed 
rank  to  a  liigher  confirmed  rank,  are  entitled  to 
retainer  pay  at  the  higher  rate  from  the  date  of 
confirmation  in  the  Iiigher  rank  or  rating. 
(25  Comp.  Dec,  350.) 

Officers  of  the  Naval  Reserve  Force  who, 
while  holding  a  confirmed  rank,  are  transferred 
to  another  class  of  the  Reserve  and  given  a 
higher  provisional  rank  therein,  are  entitled  to 
continue  in  receipt  of  retainer  pay  which  they 
were  receiving  in  the  confirmed  rank  held  by 
them.     (25  Comp.  Dec,  421.) 

Transferred  members  of  the  Fleet  Naval  Re- 
serve are  entitled,  as  retainer  pay,  to  one-third 
or  one-half,  respectively,  of  the  base  pay  they 
were  receiving  at  the  close  of  their  last  naval 


810 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1556. 


service,  and  to  the  full  amount  of  all  permanent 
additions  thereto.  Thus,  where  the  current 
rate  of  pay  of  a  man  at  the  time  of  his  transfer 
to  the  Fleet  Naval  Reserve  in  September,  1916, 
after  20  years'  service,  was  $94.53  per  month, 
composed  of  $70  base  pay,  plus  .$24.53  perma- 
nent additions,  he  was  entitled  as  retainer  pay 
to  $59.53  per  month,  being  one-lialf  of  his  base 
pay,  or  $35,  plus  all  permanent  additions, 
amounting  to  $24.53,  such  permanent  additions 
being  composed  of  $(5.44  continuous-service 
pay,  $8  pay  under  Executive  order  of  Novem- 
ber 27,  1906  (art.  4427,  par.  25,  Navy  Regs., 
1913),  $1.50  for  good-conduct  medal,  and  $8.59 
as  10  per  cent  increase  of  pay  under  the  act  of 
May  13,  1908,  said  10  per  cent  increase  being 
treated  as  a  permanent  addition  to  Ms  base 
pay  and  therefore  being  allowed  in  full.  (See 
23  Comp.  Dec,  190.) 

.  In  computing  the  retainer  pay  of  members 
of  the  Fleet  Naval  Reserve  who  have  been 
transferred  thereto  at  the  expiration  of  enlist- 
ment after  completing  16  years  of  service  in  the 
Regular  Navy,  the  increased  rates  of  pay  pro- 
\dded  in  section  15  of  the  act  of  May  22,  1917 
(40  Stat.,  87),  which  are  made  permanent  in 
certain  enlistments  by  the  act  of  July  11,  1919 
(41  Stat.,  140),  are  considered  as  establishing 
new  base  rates  of  pay  for  each  rating;  while  the 
10  per  cent  increase  of  pay  authorized  by  the 
act  of  May  13,  1908  (35  Stat.,  128),  is  to  be 
treated  as  permanent  addition  to  pay  and  not 
as  an  increase  in  the  base  rates  thereof.  Ac- 
cordingly, said  man  will  be  allowed,  in  com- 
puting his  retainer  pay,  only  one-third  of  the 
increase  provided  by  the  acts  of  May  22,  1917, 
and  July  11,  1919,  while  he  will  be  allowed  the 
full  amount  of  increase  provided  by  the  act  of 
May  13,  1908.  (26  Comp.  Dec,  219,  explaining 
23  Comp.  Dec,  190.) 

The  retainer  pay  of  officers  of  the  Naval  Re- 
serve Force  is  not  increased  by  the  temporary 
increase  granted  officers  of  the  NaA'y  by  the  act 
of  May  18,  1920  (41  Stat.,  601);  such  temporary 
increase  was  not  an  increase  in  the  base  pay  of 
the  various  ranks  in  the  Navy,  and  as  the  re- 
tainer pay  of  an  officer  of  the  Naval  Reserve 
Force  is  computed  only  upon  base  pay  of  the 
confirmed  rank  held  by  him,  the  computation 
of  his  retainer  pay  is  not  affected  by  said  act  of 
May  18,  1920.  However,  confirmed  members 
of  the  Naval  Reserve  Force  holding  enlisted 
ratings,  and  transferred  members  of  the  Fleet 
Naval  Reserve,  are  entitled  to  retainer  pay 
computed  on  the  increased  rates  of  pay  pro- 
vided in  section  6  of  said  act  of  May  18,  1920 
(41  Stat.,  602),  for  enlisted  men  of  the  Navy; 
but  if  such  members  were  not  on  active  duty 
during  any  of  the  period  from  January  1,  1920, 
from  which  said  increase  in  the  pay  of  the 
Regular  Navy  took  effect,  until  May  18,  1920, 
when  said  act  was' approved,  they  are  not  en- 
titled to  such  increase  prior  to  the  date  of  said 
act.  (27  Comp.  Dec,  274,  modifying 27  Comp. 
Dec,  126.) 

A  transferred  member  of  the  Fleet  Naval 
Reserve  of  over  20  years'  service  is  entitled  to 
but  one  10  per  cent  increase  of  his  retainer  pay, 
as  provided  by  the  act  of  August  29,  1916,  even 
though  he  may  possess  the  two  qualifications 
of  extraordinary  heroism  and  conduct  marks. 


The  statute  authorizes  but  one  10  per  cent  in- 
crease for  the  possession  l)y  a  man  of  either  of 
two  alternative  quafifications,  and  makes  his 
possession  of  one  or  other  of  the  qualifications 
sufficient  to  entitle  him  to  it.  The  fact  that  he 
may  possess  both  of  the  qualifications  does  not 
operate  to  entitle  him  to  two  10  per  cent  in- 
creases, only  one  having  been  provided  for. 
(Comp.  Dec,  June  2,  1917,  196  S.  and  A. 
Memo.,  4266.) 

"That  the  retainer  pay  of  those  members  of 
the  Fleet  Naval  Reserve  who,  pursuant  to  call, 
shall  return  to  active  duty  within  one  month 
after  tlie  approval  of  this  act  and  shall  continue 
on  active  duty  until  the  Navy  shall  have  been 
recruited  up  to  its  permanent  authorized 
strength,  or  until  the  number  in  the  grade  to 
which  they  may  be  assigned  is  filled,  but  not 
beyond  June  30,  1922,  shall  be  computed  upon 
the  base  pay  they  are  receiving  when  retrans- 
ferred  to  inactive  duty,  plus  the  additions  or 
increases  prescribed  in  the  naval  appropriation 
act  approved  August  29,  1916,  for  members  of 
the  Fleet  Naval  Reserve."  (Act  May  18,  1920, 
sec  5,  41  Stat.,  603.  By  sec.  13  of  the  same 
act  it  was  provided  that  the  provisions  of  sec.  5 
thereof  "shall  remain  effective  until  the  close 
of  the  fiscal  year  ending  June  30,  1922,  unless 
sooner  amended  or  repealed.") 

"Any  member  [of  the  Fleet  Naval  Reserve] 
who  has  failed  to  perform  three  months'  active 
ser\dce  with  the  Navy  in  any  term  of  enrollment 
shall,  on  the  next  reenrollment,  receive  retainer 
pay  at  the  rate  of  $12  per  annum  until  such 
time  as  he  shall  have  completed  three  months' 
active  service.  The  three  months'  active 
service  with  the  Navy  may  be  taken  in  one  or 
more  periods,  at  the  election  of  the  member." 
(Act  Aug.  29,  1916,  39  Stat.,  590.) 

"Members  of  the  Naval  Reserve  Force  who 
reeiu'oll  for  a  term  of  foiu:  years  within  four 
months  from  the  date  of  the  termination  of 
their  last  term  of  enrollment,  and  who  shall 
have  performed  the  minimum  amount  of  active 
service  required  during  the  preceding  term  of 
enrollment,  shall,  for  each  such  reem'ollment, 
receive  an  increase  of  twenty-five  per  centum  of 
their  base  retainer  pay."  (Act  Aug.  29,  1916, 
39  Stat.,  588.) 

"Officers  and  men  em-olling  in  the  Fleet 
Naval  Reserve  within  four  months  of  the  date 
of  the  termination  of  their  last  naval  service  or 
reemolling  \\athin  fom'  months  of  the  date  of 
the  termination  of  their  last  term  of  enrollment 
shall  receive  an  increase  of  twenty-five  per 
centum  of  their  retainer  pay  for  each  such  en- 
rollment."    (Act  Aug.  29,  1916,  39  Stat.,  590.) 

"Service  in  the  Navy,  Marine  Corps,  National 
Naval  Volunteers,  and  Naval  Militia  shall  be 
counted  as  continuous  service  in  the  Naval 
Reserve  Force,  both  for  the  purpose  of  retire- 
ment and  of  computing  retainer  pay  *  *  *  : 
Provided  further,  That  no  retainer  pay  of  any 
member  of  the  Naval  Reserve  Force,  except 
those  enlisted  men  transferred  to  the  Fleet 
Naval  Reserve  after  sixteen  or  twenty  or  more 
years'  naval  service,  shall  be  in  excess  of  the 
amount  authorized  to  members  having  had 
sixteen  years'  continuous  service  therein." 
(Act  July  1,  1918,  40  Stat.,  710.) 


54G41°— 22- 


-52 


811 


Sec.  1556. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


"For  all  purposes  of  this  act  a  complete  en- 
listment during  minority  and  any  enlistment 
terminated  within  three  months  prior  to  the 
expiration  of  the  term  of  enlistment  by  special 
oraer  of  the  Secretary  of  the  Navy  shall  be  con- 
sidered as  four  years'  ser^dce. "  (Act  Aug.  29, 
191(!,  39  Stat.,  590.) 

Any  former  member  of  class  one  of  the  United 
States  Naval  Reserve,  established  by  act  of 
March  3,  1915  (38  Stat.,  940),  who  was  serving 
therein  on  August  29,  1916,  and  w'ho  upon  his 
own  ajiplication  prior  to  July  1,  1917,  was  en- 
rolled in  the  Naval  Reserve  Force,  shall,  for  all 
purposes,  be  considered  as  having  served  con- 
tinuously in  such  Naval  Reserve  Force  since 
August  29,  191(i,  with  due  credit  for  previous 
and  continuous  ser^^ce  in  the  Naval  Reserve 
in  the  same  manner  and  to  the  same  effect  as  for 
equal  length  of  service  in  the  Naval  Reserve 
Force.     (Act  ^lar.  4,  1917,  39  Stat.,  1174.) 

Under  the  act  of  March  4,  1917,  an  enlisted 
man  of  the  Navy  who  enrolled  in  the  former 
Naval  Reserve  within  four  months  from  the 
date  of  his  discharge  from  the  Na^^^  was  serving 
in  said  Naval  Reserve  on  August  29,  1916,  and 
was  enrolled  in  the  Fleet  Naval  Reserve  prior 
to  July  1,  1917,  upon  his  own  application,  is 
regarded  as  haATUg  served  constructively  in 
the  Naval  Reserve  Force  from  the  date  of  his 
enrollment  in  the  former  Naval  Reserve,  and 
therefore  as  having  enrolled  in  said  Naval  Re- 
serve Force  within  four  months  from  the  date 
of  termination  of  his  last  naval  ser\dce ;  he  is 
therefore  entitled  to  25  per  cent  increase  of 
retainer  pay,  as  provided  by  the  act  of  August 
29,  1916,  for  persons  enrolling  in  the  Naval  Re- 
serve Force  within  four  months  of  the  date 
of  termination  of  their  last  naval  serAdce. 
(Comp.  Dec,  Sept.  29,  1917,199  S.  and  A. 
Memo.,  4386.) 

Under  the  act  of  July  1,  1918,  members  of  the 
Naval  Reserve  Force  are  entitled,  for  pre\dou8 
serAdce  in  the  Na-s^',  Marine  Corps,  National 
Naval  Volunteers,  and  Naval  Militia,  to  credit 
for  such  serA-ice  as  provided  in  the  act  of 
August  29,  1916,  i.  e.,  for  each  four  years  a 
credit  of  25  per  cent,  within  the  limitation  of 
16  years;  allowing  for  members  wdth  four,  but 
less  than  eight  years'  previous  services,  a  credit 
of  25  per  cent;  for  eight  but  less  than  12  years,  50 
per  cent;  for  12  but  less  than  16  years,  75  per 
cent;  and  for  16  or  more  years'  service,  100  per 
cent.  (25  Comp.  Dec,  504,  modifying 25  Comp. 
Dec,  308.) 

Members  of  the  Naval  Reserve  Force  trans- 
ferred thereto  from  the  National  Naval  Vol- 
unteers, under  the  pro\dsions  of  the  act  of  Julv 
1,  1918  (40  Stat.,  708),  are  entitled  to  increase  of 
25  per  cent  of  their  base  retainer  pay  upon  re- 
enrollment  in  the  Naval  Reserve  Force  within 
four  months  from  termination  of  their  three- 
year  enrollment  in  which  serving  when  so 
transferred.     (27  Comp.  Dec,  221.) 

Members  of  the  Naval  Reserve  Force  ap- 
pointed to  commissioned  or  warrant  grades 
"shall  not  be  dejjrived  of  the  retainer  pay, 
allowances,  or  gratuities  to  which  they  would 
otherwise  be  entitled. "  (Act  Aug.  29,  1916, 
39  Stat.,  587.) 

Enrolled  members  of  the  Fleet  Naval  Reserve 
in  enlisted  ratings,  who  have  been  appointed 
to  commissioned,  warrant,  and  chief  warrant 


grades  in  other  classes  of  the  Naval  Reserve 
Force,  are  not  entitled  to  continue  after  June 
30,  1918,  in  receipt  of  retainer  pay  of  their  en- 
listed ratings,  computed  on  the  rates  estab- 
lished by  the  act  of  August  29,  1916,  which 
rates  of  pay  for  eru-olled  members  of  the  P^leet 
Naval  Reserve  were  abolished  and  new  rates 
substituted  by  the  act  of  July  1,  1918  (40  Stat., 
710).  However,  emolled  members  of  the 
Fleet  Naval  Reserve  so  appointed  to  offices  in 
other  classes  of  the  Naval  Reserve  Force  may, 
on  and  after  July  1,  1918,  be  allowed  the  rate  of 
retainer  pay  provided  by  the  act  of  that  date 
for  the  enlisted  rating  which  they  held  in  the 
Fleet  Naval  Reserve.     (25  Comp.  Dec,  445.) 

Pay  irhik  holding  other  offices. — "No  existing 
law  shall  be  construed  to  prevent  any  member 
of  the  Naval  Reserve  Force  from  accepting 
employment  in  any  branch  of  the  public  serv- 
ice, except  as  an  officer  or  enlisted  man  in  any 
branch  of  the  military  service  of  the  United 
States  or  any  State  thereof,  nor  from  receiAdng 
the  pay  and  allowances  incident  to  such  em- 
ployment in  addition  to  his  retainer  pay." 
(Act  Aug.  29,  191G,  39  Stat..  588.) 

"That  no  part  or  parts  of  any  existing  law 
shall  be  construed  *  *  *  to  prevent  mem- 
bers of  the  Naval  Reserve  Force  from  being  or 
becoming  members  of  the  Naval  Militia  of  any 
State,  Territory,  or  the  District  of  Columbia: 
Provided,  That  such  membership  in  the  Naval 
Militia  shall  not  interfere  Avith  the  discharge  of 
duties  by  such  members  thereof  who  are  in  the 
Naval  Reserve  Force."  (Act  July  11,  1919,  41 
Stat.,  141.) 

"That  upon  their  enrollment  in  the  Naval 
Reserve  Force,  and  not  otherwise,  until  June 
30, 1922,  the  members  of  said  Naval  Militia  shall 
have  all  the  benefits,  gratuities,  privileges,  and 
emoluments  proAdded  by  law  for  other  members 
of  the  Naval  Reserve  Force ;  and  that  wdth  the 
approval  of  the  Secretary  of  the  Naw,  duty 
performed  in  the  Naval  Militia  may  be  counted 
as  active  ser\dce  for  the  maintenance  of  effi- 
ciency required  by  law  for  members  of  the 
Naval  Reserve  Force."  (Act  June  4,  1920, 
sec.  1,  41  Stat.,  818.) 

Officers  and  employees  of  the  Government 
who  are  members  of  the  Naval  Reserve  Force 
are  not  entitled  to  military  leave  of  absence 
wdth  pay.  in  addition  to  their  regular  annual 
and  sick  leave,  for  the  period  they  are  on  active 
duty  with  the  Naval  Reserve  Force.  (27 
Comp.  Dec,  214.) 

Members  of  the  Naval  Reserv'e  Force  on 
active  duty  are  prohibited  by  the  proAdsions  of 
the  act  of  August  29,  1916  (39  Stat.,  582),  from 
receiA dug  salary  of  any  ci\dl  position  they  may 
be  holding,  if  the  combined  amount  of  such 
salary  and  active-duty  pay  as  members  of  the 
Naval  Reserve  Force  exceeds  the  sum  of  §2,000 
per  annum,  but  such  limitations  do  not  apply 
to  the  retainer  pay  of  members  of  the  Naval 
Reserve  Force.     (27  Comp.  Dec,  214.) 

Uniform  gratuity. — "Members  of  the  Naval 
Reserve  Force  shall,  upon  first  reporting  for 
acti\"e  serAdce  for  training  during  each  period 
of  enrollment,  be  credited  wdth  a  uniform 
gratuity  of  $50  for  officers  *  *  *.  Upon 
reporting  for  active  ser.dce  in  time  of  war  or 
national  emergency  the  uniform  gratuity  shall 
be  $150  for  officers    *    *    *,  or  the  difference 


812 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1556. 


between  these  amounts  and  any  amounts  that 
may  have  been  credited  as  a  uniform  gratuity 
during  the  current  enrollment."  (Act  Aug. 
29,  1916,  39  Stat.,  589.)  _ 

"The  uniform  gratuity  for  the  members, 
other  than  officers,  of  each  class  of  the  Naval 
Reserve  Force  shall  be  the  same  as  that  pre- 
scribed for  enlisted  men  of  the  NaAy,  but  in 
time  of  peace  the  Secretary  of  the  Navy  shall 
prescribe  the  portion  of  the  clothing  gratuity  to 
be  issued  to  such  members,  other  than  officers, 
of  the  Naval  Reserve  Force."  (Act  July  1, 
1918,  40  Stat.,  711.) 

Enlisted  men  of  the  Navy  are  not  entitled  to 
a  credit  for  uniform  gratuity  but  to  clothing 
outfit,  or,  in  other  words,  to  a  gratuitous  issue 
of  uniform  and  clothing.  Therefore,  what  the 
enrolled  members  of  the  Naval  Reserve  Force 
who  first  reported  for  active  service  on  or  sub- 
sequent to  July  1,  1918,  became  entitled  to 
was  not  a  credit  for  uniform  gratuity  but  to  a 
gratuitous  issue  of  uniform,  not  to  exceed  §100. 
(25  Comp.  Dec,  281.) 

Under  the  act  of  August  29,  1916,  uniform 
gratuity  is  payable  only  to  those  members  of 
the  Naval  Reserve  Force  whose  membership  is 
contingent  upon  a  period  of  enrollment;  ac- 
cordingly, transferred  members  of  the  Fleet 
Naval  Reserve  who  are  not  "enrolled"  and 
whose  service  is  not  measmed  by  "periods  of 
enrollment  '*  are  not  entitled  to  uniform  gratuity 
either  under  that  act  or  subsequent  legislation. 
(25  Comp.  Dec,  318.) 

Officers  of  the  Volunteer  Naval  Reserve  of 
the  Naval  Reserve  Force  are  entitled  when  on 
active  duty  in  time  of  war  to  the  unifonn 
gratuity  of  $150  provided  by  the  act  of  August 
29,  1916,  for  a  full  term  of  enrollment,  notwith- 
standing that  under  said  act  members  of  the 
Volunteer  Naval  Reserve  are  not  entitled  to 
retainer  pay  or  uniform  gratuity  in  time  of 
peace.  (Comp.  Dec,  Aug.  7,  1917,  198  S.  and 
A.  Memo.,  4332.) 

During  the  period  of  any  "time  of  war  or 
national  emergency  "  officers  of  the  Naval  Re- 
serve Force  who  reenroU  and  report  for  active 
service  are  entitled  to  be  credited  with  uniform 
gratuity  of  not  to  exceed  $150,  provided  they 
have  the  required  outfit  of  uniforms  and  equip- 
ment, and  the  other  members  of  the  Naval 
Reserve  Force  so  reporting,  following  a  reen- 
rollment,  are  entitled  to  uniform  gratuity  of 
$100.  While  the  act  of  July  1,  1918,  increases 
the  amount  of  uniform  gratuity  over  that  pro- 
vided by  the  act  of  August  29,  1916,  so  as  to 
entitle  enrolled  members  other  than  oflicers  to 
a  uniform  gratuity  of  $100,  the  latter  act  does 
not  in  any  way  repeal  the  provision  of  the  act 
of  August  29,  1916,  providing  under  what  con- 
ditions the  gratuity  is  payable.  The  provision 
of  the  act  of  July  1,  1918,  "shall  be  the  same 
as  prescribed  for  enlisted  men  of  the  Navy," 
relates  only  to  the  amount  of  the  gratuity. 
(26  Comp.  Dec,  1010.) 

A  member  of  the  Naval  Reserve  Force  hold- 
ing an  enlisted  rating  who  is  promoted,  during 
the  term  of  his  enrollment  and  in  time  of  war, 
to  a  commissioned  rank  is  entitled  only  to  the 
difference  V>etween  the  amount  already  credited 
to  him  as  uniform  gratuity  and  the  maximum 
allowed  for  active  service  in  time  of  war.  (24 
Comp.  Dec,  483.') 


The  provision  for  the  crediting  of  the  uniform 
gratuity  is  a  mandatory  one.  It  is  that  officers 
shall"  be  credited  with  it  "upon  first  report- 
ing for  active  service  for  training  during  his 
period  of  enrollment,"  and  that  said  credit 
"shall"  be  $150  for  said  officers  "upon  report- 
ing for  active  service  in  time  of  war  or  national 
emergency."     (25  Comp.  Dec,  130,  131.) 

Should  any  member  of  the  Naval  Reserve 
Force  sever  his  connection  with  the  service  with- 
out compulsion  on  the  part  of  the  Government 
before  the  expiration  of  his  term  of  enrollment, 
the  amount  so  credited  [for  uniform  gratuity] 
shall  be  deducted  from  any  money  that  may 
be  or  may  become  due  him."  (Act  Aug.  29, 
1916,  39  Stat.,  589.) 

Members  of  the  Naval  Reserve  Force  "shall 
in  time  of  peace,  when  no  national  emergency 
exists,  be  discharged  upon  their  own  request 
upon  reimbursing  the  Government  for  any 
clothing  gratuity  that  may  have  been  furnished 
them  during  their  current  enrollment."  (Act 
Aug.  29,  1916,  39  Stat.,  587.) 

"That  no  part  of  the  clothing  gratuity  cred- 
ited to  members  of  the  Naval  Reseve  Force 
shall  be  deducted  from  their  accounts  where 
said  members  accept  or  have  accepted  tem- 
porary appointments  in  the  Na^^  in  time  of 
war  or  other  national  emergency."  (Act  July 
1,  1918,  to  Stat.,  711.) 

Where  an  ensign  in  the  Naval  Reserve  Force 
receives  an  order  from  the  Navy  Department 
stating,  ' '  You  are  this  day  discharged  from  the 
U.S.  Naval  Reserve  Force  for  the  convenience 
of  the  Government,"  and  the  next  day  accepts 
a  commission  as  temporary  ensign  in  the  P^egu- 
lar  Navj^  his  connection  with  the  service  was 
not  severed,  within  the  meaning  of  the  provi- 
sions of  the  act  of  August  29,  1916  (39  Stat.,  589), 
directing  the  deduction  of  uniform  gratuities  of 
officers  who  have  voluntarily  severed  their  con- 
nection with  said  force.  (Price  v.  U.  S.,  55 
Ct.  Cls.   499.) 

The  act  of  July  1,  1918  (40  Stat.,  711),  pro- 
adding  that  clothing  gratuity  credited  to  mem- 
bers of  the  Naval  Reserve  Force  shall  not  be 
deducted  from  their  accounts  where  such  mem- 
bers accept  temporary  appointment  in  the 
Regular  Navy  in  time  of  war,  would  protect  a 
member's  account  against  checkage  if  such 
checkage  had  not  already  been  made;  the 
mere  fact  that  his  account  had  been  checked 
does  not  deprive  him  of  a  right  which  would  be 
accorded  him  if  the  account  had  not  been 
checked.     (Price  v.  U.  S.,  55  Ct.  Cls.,  499.) 

Travel  allowance. — '  'The  Secretary  of  the 
Navy  is  authorized  to  assign  any  member  of 
the  Fleet  Naval  Reserve  to  active  duty  for 
training  on  board  ship  upon  the  application  of 
such  member  *  *  *:  Provided,  That  no 
member  shall  be  entitled  to  travel  allowance  un- 
less the  period  of  such  active  service  is  for  not 
less  than  one  month,  or  unless  specifically  iwo- 
vided  for  by  suc^h  regulations  as  may  be  ]>rc- 
scribed  by  the  Secretary  of  the  Navy."  (Act 
Aug.  29, 1916,  39  Stat.,  590.) 

By  act  of  February  28, 1919  (40  Stat.,  1203),  it 
was  provided  that  naval  reservists  duly  en- 
rolled who  have  been  honorably  released  from 
active  service  since  November  11,  1918,  or  wlio 
may  hereafter  be  honorably  released  from 
active   service,   shall   be   entitled   to  receive 


813 


Sec.  1556. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


tra\t'l  i)av  at  the  rate  of  five  cents  per  mile 
from  the'i)la^c  wlierc  they  are  released  from 
active  duty  to  their  actual  bona  fide  home  or 
residence,  or  original  nnuster  into  the  service, 
at  their  option;  but  for  sea  traAcl,  transporta- 
tion and  subsistence  only  shall  be  furnished  to 
enlisted  men.  By  act  of  June  4, 1920  (41  Stat., 
836),  it  was  pro\-ided  that  any  enrolled  man 
who,  since  November  11 ,  1918,  has  been  or  shall 
hereafter  be  discharged  from  any  branch  or 
class  of  the  naval  service  for  the  purpose  of  re- 
enlisting  in  the  Navy  or  Marine  Corps,  shall  be 
entitled  to  travel  pay  as  authorized  in  said  act 
of  February  28,  1919. 

Enlisted  men  of  the  Regular  Navy,  trans- 
ferred to  the  Fleet  Naval  Reserve  after  IG  or  20 
or  more  years  of  service,  whose  rating  at  the 
time  of  transfer  entitled  them  to  honorable^ dis- 
charge and  who,  as  reservists,  are  not  retained 
on  active  duty,  are  entitled  at  the  time  ol 
transfer  to  travel  allowance  at  5  cents  per  mile 
from  the  place  of  transfer  to  their  actual  bona 
fide  home  or  residence  or  place  of  original  muster 
into  the  service,  at  their  option,  as  provided  by 
the  act  of  February  28,  1919  (40  Stat.,  1203). 
(26Comp.  Dec.,636.) 

An  officer  of  the  Naval  Reserve  Force  de- 
tached from  active  duty  and  ordered  to  his 
home  who,  in  proceeding  to  his  home,  delays 
beyond  the  period  authorized  by  the  Navy 
Regulations,  is  not  entitled  to  mileage  in  sub- 
sequently performing  the  travel,  his  active 
duty  status  having  terminated  as  of  the  date  of 
detachment.  (26  Comp.  Dec,  639,  overruled, 
27  Comt).  Dec,  478,  noted  below;  see  also  26 
Comp.  Dec,  245.) 

An  officer  of  the  Naval  Reserve  Force  relieved 
from  active  duty  and  ordered  to  his  home  occu- 
pies a  situation  analogous  to  a  retired  naval 
officer  released  from  active  duty  and  is  accord- 
ingly entitled  to  mileage  to  his  home,  provided 
the  journey  is  performed  in  obedience  to  orders 
within  a  reasonable  time  after  date  of  release 
from  active  dutv.  (27  Comp.  Dec,  478,  over- 
ruling 26  Comp.  Dec,  639.) 

Under  the  act  of  February  28,  1919,  (40  Stat., 
1203),  a  member  of  the  Naval  Reserve  Force 
released  from  active  duty  in  the  interior  of  a 
foreign  country  is  entitled  to  travel  allowance 
at  the  rate  of  5  cents  per  mile  from  place  of  re- 
lease to  port  of  embarkation,  transportation  and 
subsistence  for  the  sea  travel  involved,  and  5 
cents  per  mile  in  the  United  States  from  the 
port  of  landing  to  his  bona  tide  home  or  resi- 
dence or  place  of  original  muster  into  the  ser- 
vice, at  his  option.     (26  Comp.  Dec,  888.) 

Transferred  members  of  the  Naval  Reserve 
Force,  as  well  as  those  duly  enrolled  from  ci\il 
life,  are  entitled  to  travel  allowance  upon  hon- 
orable release  from  active  duty  imder  the  act  of 
February  28,  1919  (40  Stat.,  1203).  (26  Comp. 
Dec,  878.) 

Courts-martial. — Transferred  members  of  the 
Fleet  Naval  Reserve,  when  released  from 
active  duty,  are  entitled  to  ])e  credited,  under 
article  4893,  Naval  Instructions,  1913,  with  the 
amounts  deducted  from  their  pay  on  account  of 
court-martial  sentences,  in  the  same  manner  as 
though  such  release  from  active  duty  were  a 
discharge  from  the  service.  (26  Comp.  Dec, 
91.)  But  enrolled  members  of  the  Naval  Re- 
serve Force  are  entitled  to  such  credit  only 


upon  disenrollment  or  discharge,  their  release 
from  active  duty  not  being  equivalent  to  a  dis- 
charge.    (26  Com)).  Dec,  818.) 

The  appropriation,  "Pay,  miscellaneous," 
is  available  for  the  payment  of  the  cost  of  sub- 
sistence of  officers  of  the  Naval  Reserve  Force 
on  inactive  duty,  while  in  confinement  await- 
ing action  of  the  Navy  Department  or  awaiting 
trial  by  court-martial.     (26  Comp .  Dec,  884.) 

Deduction  of  pay. — Deduction  of  20  cents  per 
month  for  the  naval  hospital  fund  should  be 
made  from  the  active-duty  pay  of  all  members 
of  the  Naval  Reserve  Force  during  such  time  as 
they  are  on  active  duty,  and  also  such  deduc- 
tion should  be  made  from  the  retainer  pay  of 
transferred  members  of  the  Fleet  Naval  Reserve 
when  not  on  active  duty.  Under  the  act  of 
August  29,  1916,  em-olled  members  of  the  Naval 
Reserve  Force  are  "subject  to  the  laws,  regu- 
lations, and  orders  for  the  government  of  the 
Regular  Navy  only  during  such  time  as  they 
may  by  law  be  required  to  serve  in  the  Navy, 
in  accordance  with  their  obligations,  and  when 
on  active  service  at  their  own  request  as  herein 
provided,  and  when  employed  in  authorized 
travel  to  and  from  such  active  service  in  the 
Navy."  Under  the  same  act,  "  men  transferred 
to  the  Fleet  Naval  Reserve  shall  be  governed 
by  the  laws  and  regulations  for  the  government 
of  the  Na\'y"  at  all  times,  and  not  merely 
while  employed  on  active  duty.  One  of  the 
laws  for  the  government  of  the  Navy  thus  made 
applicable  to  members  of  the  Naval  Reserve 
Force  is  that  providing  for  deduction  on  account 
of  the  naval  hospital  fund.  (Comp.  Dec,  Dec. 
27,  1916,  190  S.  and  A.  Memo.,  4121;  sees.  1614 
and  4808,  R.  S.) 

An  em-olled  member  of  the  Naval  Reserve 
Force  holding  an  enlisted  rating  and  in  an 
active-duty  status  is  not  entitled  to  active-duty 
pay  or  allowance  for  subsistence  during  un- 
authorized a}:)sence,  such  case  being  governed 
by  article  4425,  Navy  Regulations  1913  (C.  N. 
R.  7),  made  applicable  by  act  of  August  29, 
1916  (39  Stat.,  588),  to  enrolled  members  of  the 
Naval  Reserve  Force  while  on  active  duty. 
(Comp.  Dec,  June  20,  1918,  208  S.  and  A. 
Memo.,  4581.) 

Retired  pay. — Enrolled  members  of  the  Naval 
Reserve  Force  "who  shall  have  completed 
twenty  years  of  service  in  the  Naval  Reserve 
Force,  and  who  shall  have  performed  the  mini- 
mum amount  of  active  service  requii-ed  in  then- 
class  for  maintaining  efficiency  during  each 
term  of  em-oUment,  shall,  upon  their  own  appli- 
cation, be  retired  with  the  rank  or  rating  held 
by  them  at  the  time,  and  shall  receive  in  lieu 
of  any  pay,  a  cash  gratuity  equal  to  the  total 
amount  of  their  retainer  pay  during  the  last 
term  of  theii'  em-oUment."  (Act  August  29, 
1916,  39  Stat.,  588.) 

Transferred  members  of  the  Fleet  Naval  Re- 
serve "may,  upon  their  own  request,  upon 
completing  thirty  years'  service,  including 
naval  and  Fleet  Naval  Reserve  service,  be 
placed  on  the  retired  list  of  the  Navy  with  the 
pay  they  were  then  receiving  plus  the  allow- 
ances to  which  enlisted  men  of  the  same  rating 
are  entitled  on  retirement  after  thirty  years' 
naval  service."  (Act  August  29,  1916,  39  Stat., 
591.) 


814 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1556. 


"  Service  in  the  Naw,  Marine  Corps,  National 
Naval  Volunteers,  and  Naval  Militia  shall  be 
counted  as  continuous  8er\'ice  in  the  Naval 
Reser^■e  Force,  both  for  the  purpose  of  retire- 
ment and  of  computing  retainer  pay:  Provided, 
That  no  member  of  the  Naval  Reserv^e  Force 
shall  be  eligible  for  rethement  other  than  for 
physical  disability  inciu-red  in  line  of  duty." 
(Act  July  1,  1918,  40  Stat.,  710.) 

Nothing  contained  in  this  act  shall  operate 
to  deny  to  enlisted  men  transferred  to  the 
Naval  Reserve  Force  after  16  years  or  more  of 
naval  ser\dce,  their  pri^dlege  of  retirement 
upon  completing  .30  years'  naval  sei"\-ice  as  now 
provided  bv  law.  (Act  Julv  1,  1918,  40  Stat., 
710.) 

38.  Additional  pay  for  special  duty — 
Superintendent  of  Naval  Academy. — "The  pay 
of  the  Superintendent  of  the  Naval  School  at 
Annapolis  shall  be  at  the  rate  allowed  to  an 
officer  of  his  rank,  when  in  ser-vice  at  sea." 
(Act  Sept.  28,  1850,  9  Stat.,  515.) 

The  Superintendent  of  the  Naval  Academy, 
while  discharging  the  duties  of  that  position,  is 
entitled  to  the  sea  pay  of  an  officer  of  his  rank, 
notwithstanding  section  13  of  the  Na\^^  per- 
sonnel act  of  March  3,  1899  (30  Stat.,  "lOO?), 
which  pro\'ides  that  officers  of  the  Na\'y  "when 
on  shore  shall  receive  the  allowances,  but 
fifteen  per  centum  less  pay  than  when  on  sea 
duty."  The  rule  is  applicable  that  a  general 
law  will  not  repeal  an  earlier  special  act  by 
mere  implication;  and  in  this  case  the  Navy 
personnel  act  is  general  in  its  pro\T.sions  and 
does  not  by  implication  repeal  special  acts 
applicable  to  particular  cases.  (6  Comp.  Dec, 
885;  see  also  12  Op.  Atty.  Gen.,  81;  18  Comp. 
Dec,  17.). 

Commandant  of  navy  yard,  Mare  Island. — 
"The  pay  of  the  officer  of  the  Na\'y  assigned  to 
the  command  of  the  na\y  yard  at  Mare  Island, 
California,  shall  be  the  sea  pay  of  his  grade." 
(Joint  Res.  Mar.  3,  1863,  12  Stat.,  825.) 

The  joint  resolution  of  March  3,  1863,  pro- 
viding that  the  pay  of  the  officer  of  the  Nav-v- 
assigned  to  the  command  of  the  Mare  Island 
Navy  Yard  shall  be  the  sea  pay  of  his  gi-ade, 
is  not  in  conflict  with  the  act  of  May  13,  1908, 
and  such  officer  while  in  that  command  is  enti- 
tled to  the  pay  of  his  grade,  fixed  by  said  act  of 
May  13,  1908,  with  10  per  cent  additional  al- 
lowed for  sea  duty.  The  requirement  in  said 
act  of  May  13,  1908,  that  estimates  for  "Pay  of 
the  Navy"  shall  hereafter  show  the  amount 
allowed  "for  pay  at  sea  rates  to  officers  em- 
ployed on  shore,"  e"vidently  contemplates  that 
there  may  be  cases  under  the  act  where  the  ad- 
ditional pay  for  service  on  sea  duty  may  law- 
fully be  paid  to  officers  emploved  on  shore. 
(15  Comp.  Dec,  36;  18  Comp.  Dec,  17.) 

Chief  of  Naval  Operations,  and  commanding 
officers  of  fleets  and  squadrons. — See  note  above, 
under  "Admirals;  Vice  Admirals." 

Chkfs  of  bureaus,  assistant  chiefs  of  bureaus, 
and  Judge  Advocate  General. — See  note  to  sec- 
tion 421,  Re\dsed  Statutes. 

Aids  to  rear  admirals. — By  act  of  May  13,  1908, 
it  was  provided  that  "aids  to  rear  admirals 
embraced  in  the  nine  lower  numbers  of  that 
grade  shall  each  receive  one  hundred  and  fifty 
dollars  additional  per  annum,  and  aids  to  all 
other  rear  admirals  two  hundred  dollars  addi- 


tional per  annum  each."  (35  Stat.,  128.)  By 
act  of  August  29,  1916  (39  Stat.,  577,  578),  the 
number  of  rear  admirals  was  increased  and  the 
designation  of  those  in  the  nine  lower  numbers 
was  changed  to  rear  admirals  of  the  lower  half, 
and  the  designation  of  rear  admirals  of  the  first 
nine  was  changed  to  rear  admirals  of  the  upper 
half. 

A  naval  officer  assigned  to  duty  on  the  per- 
sonal staff  of  a  rear  admiral,  as  flag  lieutenant, 
without  any  other  designation,  is  an  aid  to  such 
rear  admiral  and  entitled  to  the  additional  pay 
of  $200  per  annum  allowed  to  an  aid  of  a  major 
general  in  the  Army.  (U.  S.  v.  Miller,  208  U. 
S.,  32,  construing  the  law  as  it  existed  prior  to 
May  13,  1908,  viz.  Act  of  Mar.  3,  1899,  sec.  13, 
30  Stat.,  1004,  and  sees.  1098  and  1261,  R.  S.) 

A  determination  of  who  are  aids  should  be 
arrived  at  by  a  consideration  of  the  nature  and 
character  of  the  duties  of  the  officers  constitut- 
ing the  personal  staff  of  a  flag  officer,  and  not 
made  to  depend  upon  whether  they  are  techni- 
cally designated  as  aids.  (U.  S.  r.  Miller,  208 
U.  S.,  32. )_ 

An  aid  in  the  Navy  is  an  officer  legally  or- 
dered to  duty  with  an  admiral,  vice  admiral, 
or  rear  admiral,  to  perform  for  him  strictly 
personal,  confidential,  and  routine  duties. 
These  duties  can  not  be  combined  with  the 
duties  of  a  fleet  ordnance  officer  or  a.ny  other 
officer  who  has  other  duties  to  perform  separate 
and  distinct  from  the  duties  of  an  aid.  (Knox 
r.  U.  S.,  52  Ct.  Cls.,  22,  holding  that  an  officers' 
appointment  as  fleet  ordnance  officer  did  not 
constitute  him  an  aid  of  the  commander  in 
chief.) 

No  officer  above  the  rank  of  lieutenant  in  the 
Na\'y  is  entitled  to  pay  as  an  aid  to  a  rear  ad- 
miral under  the  act  of  May  13,  1908,  fixing  the 
pay  of  aids.    (.Knox  v.  U.  S.,  52  Ct.  Cls.,  22.) 

Under  Revised  Statutes,  section  1098,  no 
officer  above  the  rank  of  captain  in  the  Army 
could  legally  become  an  aid  to  a  major  general. 
It  follows  (no  statute  or  regulation  having 
changed  the  qualifications  of  aids  in  the  Na\^) 
that  no  officer  above  the  rank  of  lieutenant  m 
the  Naw  can  be  entitled  to  pay  as  aid  to  a  rear 
admiral.  Congress,  in  fixing  the  pay  of  aids  in 
the  Navy  by  the  act  of  May  13,  1908,  must  have 
had  in  mind  the  qualifications  which  at  that 
time  were  prescribed  for  aids  in  the  Army  and 
which  up  to  that  time  had  been  the  qualifica- 
tions for  aids  in  the  Navy.  (Knox  r.  U.  S.,  52 
Ct.  Cls.,  22.  See  also,  Tompkins  v.  U.  S.,  52 
Ct.  Cls.,  30;  Helm  d.  U.  S.,  52  Ct.  Cls.,  32.) 

The  proA-ision  of  the  Navy  pay  act  of  May 
13,  1908  (35  Stat.,  198),  considered  in  connec- 
tion with  provisions  of  the  Navy  Regulations 
relating  to  the  rank  of  "aids,"  is  unambiguous, 
and  entitles  a  naval  officer  with  the  rank  of 
Lieutenant  commander  serving  at  sea  as  aid 
to  a  rear  admiral  of  the  senior  nine  to  the 
additional  compensation  provided  by  the 
act  of  May  13,  1908.  The  Navy  Regulations 
may  designate  the  rank  of  "aids"  when  the 
statute  has  made  appropriations  for  their 
pay.  In  this  case  the  regulations  then_  in 
force  allowed  an  officer  with  the  rank  of  lieu- 
tenant commander  to  be  detailed  as  aid, 
and  as  he  complied  with  the  regulations^  he 
was  entitled  to  the  additional  pay  notwith- 
standing that   at   the   time  officers  of  corre- 


815 


Sec.  1556. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


spondijig  rank  in  the  Army  were  not  qualified 
to  act  as  aids  to  majors  general.  (Jones  v. 
V.  S.,  49  Ct.  Cls.,  IG;  affirmed,  Holmes  v. 
U.  S.,  49  Ct.  Cls.,  70) 

Appointments  as  aids  are,  under  the  Navy 
llegulations,  to  be  made  by  the  Secretary 
of  the  Navy.  A  lieutenant  in  the  Navy 
ordered  by  the  Secretary  to  report  to  a  rear 
admiral,  commandant  of  a  navy  yard,  to 
perform  such  duty  as  the  commandant  might 
assign  him,  and  Avho  was  assigned  by  the 
coumiandant  pursuant  to  this  order  of  the 
Secretary  to  duty  as  his  aid,  is  entitled  to 
additional  pay  pro\-ided  for  aids  to  rear  ad- 
mirals, the  order  of  the  Secretary  being  suf- 
ficient authority  to  the  commandant  to  make 
such  assignment;  but  the  appointment  of 
an  aid  by  the  commander  in  chief  of  a  fleet 
is  void  ab  initio.  The  regulations  require 
that  in  all  cases  aids  must  be  nominated  to 
the  Secretary  by  the  officer  under  whom  they 
are  to  serve.  He  could  not  become  entitled 
to  the  additioanl  pay  of  aid  merely  by  being 
called  an  aid  by  his  commanding  officer  or 
by  having  the  word  "aid"  affixed  to  his  name 
in  the  Navy  Register.  (Knox  v.  U.  S.,  52 
Ct.  Cls.,  22,  distinguishing  Frucht  v.  U.  S., 
49    Ct.    Cls.,    570.) 

"^Tiere  a  lieutenant  of  the  Na\y  serves  as 
aid  to  the  commandant  of  a  navy  yard  under 
section  1469,  Revised  Statutes,  and  such 
commandant  was  a  rear  admiral,  held,  that 
the  aid  is  entitled  to  the  additional  pay  pro- 
vided for  by  the  act  of  May  13,  1908.  In 
this  case  the  Secretary  of  the  Navy  ordered 
the  lieutenant  to  report  to  the  commandant 
of  the  navy  yard  for  such  duty  as  the  latter 
might  assign,  and  the  commandant,  a  rear 
admiral,  detailed  him  to  duty  as  his  aid. 
(Frucht  V.   U.   S.,  49  Ct.  Cls.,   570.) 

If  the  commandant  happens  to  be  a  rear 
admiral,  the  aid  will  be  entitled  to  the  addi- 
tional pay_pro\dded  by  the  act  of  May  13, 
1908,  and  ii  the  commandant  happens  to  be 
an  officer  of  inferior  rank,  the  aid  will  not  be 
entitled  to  such  additional  pay,  the  same 
incongruity  appears  in  regard  to  aids  for 
officers  afloat;  a  rear  admiral  in  command 
of  a  squadron  is  entitled  to  an  aid  who  would 
receive  the  extra  pay  provided  by  the  act 
of  May  13,  1908,  w^hile  a  captain  exercising 
the  same  command  would  not  be  so  entitled. 
(Frucht  V.  U.  S.,  49  Ct.  Cls.,  570.) 

The  commanding  officer  of  a  fleet  has  no 
power  to  appoint  an  aid  for  a  rear  admiral  com- 
manding a  division;  while  the  officer  might 
have  to  obey  an  order  of  his  superior  officer, 
he  is  not  thereby  entitled  to  the  additional 
pay  pro\dded  for  those  legally  detailed  as  aids. 
(Knox  V.  U.  S.,  52  Ct.  Cls.,  22;  Palmer  v.  U.  S., 
52  Ct.  Cls.,  31.) 

A  lieutenant  in  the  Navy  is  entitled  to  addi- 
tional pay  as  aid  to  a  rear  admiral  during  a 
period  that  he  served  as  such  aid.  notwithstand- 
ing that  upon  subsequent  promotion  to  the 
grade  of  lieutenant  commander  he  became 
entitled  to  the  rank  and  pay  of  the  latter 
grade  retroacti^•ely,  covering  the  same  period 
for  which  he  had  received  aid's  pay;  Avhile  he 
became  constructively  a  lieutenant  commander 
during  that  period,  ne  was  not  such  in  fact. 
(Downes  v.  U.  S.,  52  Ct.  Cls.,  237,  243,  327.) 


The  Secretary  of  the  Na\^'s  assignment  of 
a  captain  of  the  Na^'y  to  duty  with  the  rank  and 
title  of  roar  admiral,  by  authority  of  section 
1434,  Revised  Statutes,  does  not  make  such 
officer  a  rear  admiral  within  the  meaning  of 
the  law  providing  additional  pay  for  aids  to 
rear  admirals.     (17  Comp.  Dec,  54.) 

A  lieutenant  in  the  Navy  serving  as  flag 
secretary  and  aid  to  a  rear  admiral  designated  as 
commander  in  chief  of  a  fleet,  under  the  act  of 
March  3,  1915  (.38  Stat.,  941,  942),  is  not  entitled 
to  pay  as  an  aid  to  an  admiral.  The  designa- 
tion of  said  rear  admiral  as  commander  in 
chief  conferred  upon  him  the  rank  of  admiral, 
))ut  did  not  invest  him  with  the  office  of  admi- 
ral. (21  Comp.  Dec,  840.)  However,  an  offi- 
cer serving  as  aid  to  a  rear  admiral  holding  the 
rank  of  admiral  as  commander  in  chief  of  a 
fleet  is  entitled  to  the  additional  pay  allowed 
by  law  for  aids  to  rear  admirals.  (Comp. 
Dec,  Oct.  13,  1915,  176  S.  and  A.  Memo.,  3810.) 

An  officer  of  the  Navy  serving  as  aid  to  the 
Admiral  of  the  Navy  is  not  entitled,  under  the 
assimilating  pro^^sions  of  section  13  of  the  Navy 
personnel  act  of  March  3,  1899  (30  Stat.,  1007), 
to  higher  rank  and  pay  as  provided  by  section 
1096,  Re\Tsed  Statutes,  for  aids  to  the  General 
of  the  Army.  That  section  had  ceased  to  exist 
as  the  result  of  the  nonexistence  of  the  grade 
of  General  of  the  Army  years  before  the  re-cre- 
ation of  the  office  of  Admii-al  in  1899.  Further- 
more, Congress  in  the  Na\'y  pay  act  of  May  13, 
1908  (35  Stat.,  127),  in  terms  specifically  pro- 
vided for  the  pay  of  every  officer  in  the  Navy, 
including  the  Admiral  and  embracing  extra 
compensation  to  aids  to  rear  admirals,  making 
no  proA-isions  whatever  for  compensation  for 
services  which  might  be  rendered  by  an  officer 
acting  as  aid  to  the  Admiral.  The  incongi-uity, 
if  any,  which  might  result  from  providing  for 
extra  compensation  for  an  aid  to  a  rear  admiral, 
and  not  for  aids  to  the  higher  officer,  the 
Admiral,  would  be  but  the  conseq^uence  of 
legislative  omission,  and  would  not  justify  to 
exertion  of  judicial  power  for  the  purpose  of 
re-creating  a  provision  of  law  concerning  aids  to 
the  General  of  the  Army  which  has  long  since 
ceased  to  exist,  in  order  to  afford  a  subject  upon 
which  the  assimilating  provision  of  the  Navy 
personnel  act  of  1899  might  operate.  (Wood 
V.  U.  S.,  224  U.  S.,  132.  See  also  Caldwell, 
V.  U.  S.,  44  Ct.  Cls.,  604;  Wood  v.  U.  S.,  44  Ct. 
Cls.,  611.) 

An  officer  of  the  Navy  detailed  to  duty  as  aid 
to  the  Chief  of  Naval  Operations  is  not  entitled, 
while  so  serving,  to  the  additional  pay  pro\dde(i 
in  the  act  of  May  13,  1908,  for  aids  to  rear  ad- 
mii'als,  although  the  Chief  of  Naval  Operations 
holds  the  oftice  of  rear  admiral  in  the  Navy  and 
has  the  rank  but  not  the  office  of  Admiral  while 
so  serving.  This  case  differs  from  one  in  which 
an  officer  is  expressly  ordered  to  duty  as  aid  to 
a  rear  admu-al,  in  that  here  the  officer's  orders 
were  to  duty  as  aid  to  the  Chief  of  Naval  Op- 
erations and  not  as  aid  to  a  rear  admiral.  (24 
Comp.  Dec,  190.) 

Under  section  1262,  Revised  Statutes,  and 
the  act  of  June  30,  1882  (22  Stat.,  118),  an  aid 
to  a  rear  admiial  is  not  entitled  to  have  his 
longevity  pay  calcidated  upon  the  additional 
pay  which  he  receives  as  aid,  that  being,  under 
section  1261,  Revised  Statutes,  an  allowance 


816 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1556. 


in  addition  to  and  not  a  part  of  the  pay  of  his 
rank.     (U.  S.  v.  Miller,  208  U.  _S.,  32.) 

A  lieutenant  in  the  Navy  serving  as  aid  to  a 
rear  admiral  was  entitled,  under  the  Navy 
personnel  act  of  March  3,  1899,  to  the  additional 
$200  allowed  to  a  lieutenant  serving  as  aid  to  a 
major  general,  under  section  1261,  Revised  Stat- 
utes, but  not  to  the  mounted  pay  allowed  to 
the  Army  lieutenant  serving  as  such  aid  under 
section  1301,  Army  Regulations.  (U.  S.  v. 
Crosley,  196  U.  S.,  327.) 

An  officer  of  the  Navy  is  entitled  to  the  addi- 
tional pay  allowed  an  aid  when  said  officer 
enters  upon  duty  under  proper  designation  as 
aid  to  a  rear  admiral,  and  is  entitled  to  such 
pay  while  on  authorized  allowanceof  leave  if, 
during  such  leave,  his  designation  as  aid 
remains  unchanged.     (17  Comp.  Dec,  104.) 

For  other  cases,  see  note  to  section  1469, 
Revised  Statutes. 

Aviation  duty. — By  act  of  March  3,  1915  (38 
Stat.,  939),  it  was  pro-sided  that  "hereafter 
officers  of  the  Navy  and  Marine  Corps  appointed 
student  naval  aviators,  while  lawfully  detailed 
for  duty  involving  actual  flying  in  air  craft, 
including  balloons,  dirigibles,  and  aeroplanes, 
shall  receive  the  pay  and  allowances  of  their 
rank  and  service  plus  thirty- five  per  centum 
increase  thereof;  and  those  officers  who  have 
heretofore  qualified,  or  may  hereafter  qualify, 
as  naval  aviators,  under  such  rules  and  regula- 
tions as  have  been  or  may  be  prescribed  by  th^ 
Secretary  of  the  Navy,  shall,  while  lawfully 
detailed  for  duty  involving  actual  flying  in 
air  craft,  receive  the  pay  and  allowances  of 
their  rank  and  service  plus  fifty  per  centum 
increase  thereof  *  *  *:  Provided,  That  not 
more  than  a  yearly  average  of  forty-eight 
officers  *  *  *  of  the  Navy,  and  twelve 
officers  *  *  *  of  the  Marine  Corps,  de- 
tailed for  duty  involving  actual  flying  in  air 
craft,  shall  receive  any  increase  in  pay  while  on 
duty  involving  actual  flying  in  air  craft,  nor 
shall  any  officer  in  the  Navy  senior  in  rank  to 
commander,  nor  any  officer  in  the  Marine 
Corps  senior  in  rank  to  major,  receive  any  in- 
crease in  pay  or  allowances  by  reason  of  such  de- 
tail or  duty. " 

By  act  of  August  29,  1916  (39  Stat.,  582,  586), 
it  was  provided  that  "the  officers  detailed  and 
the  enlisted  men  of  the  Naval  Flying  Corps 
shall  receive  the  same  pay  and  allowances  that 
are  now  provided  by  law  for  officers  and  en- 
listed men  of  the  same  grade  or  rank  and  rating 
in  the  Navy  and  Marine  Corps  detailed  to  duty 
with  aircraft  involving  actual  flying";  that 
"officers  and  enUsted  men,  while  detailed  as 
student  aviators  and  student  airmen  involving 
actually  flying  in  aii'craft,  shall  receive  the  same 
pay  and  allowances  that  are  now  pro\ided 
by  law  for  officers  and  enlisted  men  of  the  same 
grade  or  rank  and  rating  in  the  Navy  detailed  for 
duty  with  aircraft '' ;  "that  student  flyers  ap- 
pointed by  the  Secretary  of  the  Navy,  during  a 
period  of  four  years  following  said  act,  for  in- 
struction and  training  in  aeronautics  '"shall 
receive  the  same  pay  and  allowances  as  mid- 
shipmen at  the  United  States  Naval  Academy  " ; 
and  that  "student  flyers  shall,  after  receiving 
a  certificate  of  qualification  as  an  aviator  for 
actual  flying  in  aircraft,  rank  with  midshipmen 


and  shall  receive  the  same  pay  and  allowances 
as  midshipmen,  plus  fifty  per  centum  thereof." 

By  act  of  July  1,  1918  (40  Stat.,  718),  it  was 
provided  that  thereafter  the  "allowances"  of 
"officers,  enlisted  men,  and  student  flyers  of 
the  naval  service  shall  in  no  case  be  increased 
by  reason  of  the  performance  of  aviation  duty.  " 

Flights  performed  by  an  officer  of  the  Navy 
prior  to  receipt  of  orders  to  duty  involving 
actual  flying  in  aircraft  do  not  constitute  duty 
performed  under  a  lawful  detail,  and  therefore 
do  not  entitle  the  officer  to  the  increased  pay 
and  allowances  authorized  by  the  act  of  March 
3,  1915.     (26  Comp.  Dec,  93.) 

An  officer  designated  as  naval  a\iator  on  the 
date  that  he  qualified  as  such  is  entitled  to  the 
increased  pay  authorized  by  the  act  of  March 
3,  1915,  from  the  date  of  such  designation,  and 
not  merely  from  the  date  that  the  designation 
was  received  by  him.  (Comp.  Dec,  Jan.  30, 
1917,  191  S.  and  A.  Memo.,  4149.) 

If  in  point  of  fact  an  officer  was  engaged  under 
proper  orders  in  actual  flying  at  the  time  an 
order  was  issued  by  the  Secretary  of  the  Navy 
detaihng  him  to  duty  involving  actual  flying 
in  heavier-than-air  craft,  and  prior  to  receipt  by 
him  of  said  detail,  he  is  entitled  to  the  addi- 
tional pay  provided  for  such  duty  from  the  date 
the  detail  was  issued.  (Comp.  Dec,  Apr,  14, 
1913,  146  S.  and  A.  Memo.,  2483.) 

Officers  and  enlisted  men  of  the  Navy  who  are 
properly  detailed,  under  the  act  of  March  3, 
1915  (38  Stat.,  928,  939),  for  duty  involving 
actual  flying  in  aircraft,  are  entitled  to  the  addi- 
tional pay  provided  in  that  act  wlrile  on  author- 
ized leave  of  absence  within  the  period  of  such 
detail.  (22  Comp.  Dec,  292;  see  also,  23 
Comp.  Dec,  589;  24  Comp.  Dec,  232.) 

An  officer  of  the  Army  detailed  for  duty  re- 
qiuring  him  to  make  regular  and  frequent  aerial 
flights  is  entitled  to  the  increased  pay  author- 
ized for  such  duty  during  the  period  he  is  dis- 
abled by  reason  of  injuries  received  in  the  line 
of  duty  as  aviator.     (25  Comp.  Dec,  50.) 

The  detachment  from  duty  involving  actual 
flying  of  a  student  naval  aviator  because  of  in- 
juries received  in  line  of  duty  implies  a  cessa- 
tion of  such  duty  for  an  indefinite  period  and 
terminates  the  right  to  the  additional  pay  pro- 
vided therefor  while  the  officer  is  undergoing 
treatment.     (25  Comp.  Dec,  872.) 

An  officer  of  the  Navy  detailed  to  duty  in-  • 
volving  actual  flying  in  aircraft  is  not  entitled 
to  the  additional_  pay  provided  for  that  duty 
during  a  period  in  which  such  duty  was  not 
performed  by  him,  notwithstanding  that  he  was 
prevented  from  performing  suchduty  during 
said  period  because  of  his  being  interned  in  a 
neutral  country  or  held  prisoner  by  the  enemy. 
(25  Comp.  Dec,  169;  but  see  decision  of  Court 
of  Claims,  noted  below.) 

An  officer  of  the  Navy  detailed  as  a  student 
aviator  is  not  entitled  to  the  additional  pay 
provided  for  aviation  duty  during  a  period  that 
he  was  not  performing  duty  involving  actual 
flying,  not\vithstanding  that  he  was  prevented 
from  performing  such  duty  during  said  period 
because  of  conditions  directly  resulting  from  a 
hurricane  and  over  which  he  had  no  control. 
(Comp.  Dec,  Aug.  8, 1917, 198  S.  and  A.  Memo., 


817 


Sec.  1556. 


Ft.  2.  REVISED  STATUTES. 


The  Navy. 


4334 ;  but  see    decision    of    Court    of    Claims, 
noted  below.) 

In  any  case  where  an  officer  or  enlisted  man 
detailed  to  duty  involving  actual  flying  in  air- 
craft is  not  engaged  in  actual  flying  for  an  un- 
reasonable period  after  his  order  of  detail,  pay- 
ment of  the  additional  pay  provided  in  the  act 
of  March  3,  1915,  is  not  authorized.  As  to  what 
would  be  considered  by  the  Comptroller  of  the 
Treasury  as  such  an  "unreasonable  time" 
would  depend  upon  the  facts  in  each  particular 
case.  (23  Comp.  Dec,  589;  but  see  decision  of 
Court  of  Claims,  noted  below.) 

An  oflicer  detailed  by  the  Secretary  of  the 
Navy  to  duty  involving  actual  fljang  in  aircraft, 
as  shown  by  said  detail,  is  not  entitled  to  the 
additional  pay  provided  by  law  for  officers  so 
detailed,  unless  in  the  opinion  of  the  Comp- 
troller of  the  Treasury  "the  duty  which  the 
order  was  for  in  fact  included  actual  fljdng." 
The  Comptroller  of  the  Treasury  holds  that  it 
is  the  duty  of  his  office  to  determine  in  any  case 
whether  or  not  the  duty  to  which  an  officer  of 
the  Navy  is  detailed  by  the  Secretary  of  the 
Navy  involves  actual  flying  in  aircraft,  and  that 
the  question  of  jurisdiction  raised  by  the  Sec- 
retary of  the  Navy  is  one  which  can  be  decided 
only  by  the  comptroller.  The  Comptroller  of 
the  Treasury  regards  loss  of  life  in  the  perform- 
ance of  duty  for  which  the  additional  pay  is 
given  aa  evidence  which  would  certainly  pass 
through  his  office  the  accounts  of  an  officer  for 
additional  pay  for  any  period  within  reason 
prior  to  his  death.  (24  Comp.  Dec,  11;  but  see 
decision  of  Court  of  Claims,  noted  below.) 

Under  the  act  of  March  3,  1915  (38  Stat.,  939, 
940),  an  enlisted  man  of  the  Nayy  is  entitled  to 
the  additional  pay  allowed  by  law  "while  de- 
tailed for  duty  involving  actual  flying  in  air- 
craft." The  pay  is  not  made  dependent  upon 
the  number  of  flights  while  on  such  duty,  but 
is  made  dependent  on  the  detail  to  such  duty. 
Congress  did  not  fix  the  pay  on  the  number  of 
times  an  enlisted  man  actually  flew,  nor  on  the 
number  of  davs  he  was  engaged  in  actual  flying. 
When,  therefore,  he  was  lawfully  detailed  to 
duty  involving  actual  fl.ydng  in  aircraft  he  must 
be  regarded  and  treated  as  entitled  to  the  con- 
sequences of  such  detail  and  to  the  pay  pro- 
\'ided  for  such  duty.  (Luskey  v.  U.  S.,  Ct. 
Cls.  No.  34241,  decided  Nov.  7,  1921,  overruling 
contrary  decisions  of  the  Comptroller  of  the 
Treasury,  noted  above.) 

An  officer  of  the  Navy  ordered  to  perform 
duty  as  student  naval  aviator  in  addition  to  his 
regular  sea  duty  is  entitled,  if  he  performs  actual 
flights  under  said  detail,  to  the  35  per  cent 
increase  in  shore  pay  only  from  the  time  he 
reported  for  such  duty  until  he  left  the  station 
to  return  to  his  ship,  such  increase  not  to  be 
computed  on  his  increase  for  sea  duty  nor  on 
his  allowances.  \\Tiere  the  orders  do  not  ex- 
pressly impose  the  continued  discharge  of  sea 
duty,  but  state  that  the  fljang  duty  is  not  to 
interfere  with  duties  already  assigned,  the  pre- 
sumption is  that  the  shore  duty  is  temporary 
and  additional  to  the  regular  duty,  and  there- 
fore the  officer  is  entitled  to  sea  duty  pay  while 
performing  said  temporary  duty.  (26  Comp. 
Dec,  93.) 

Shore  duty  beyond  sca^. — "All  officers  on 
sea  duty  and  all  officers  on  shore  duty  beyond 


the  continental  limits  of  the  United  States 
shall  while  so  serving  receive  ten  per  centum 
additional  of  their  salaries  and  increase  as 
above  provided,  and  such  increase  shall 
commence  from  the  date  of  reporting  for 
duty  on  board  ship  or  the  date  of  sailing  from 
the  United  States  for  shore  duty  beyond 
the  seas  or  to  join  a  ship  in  foreign  waters." 
(Act  May  13,  1908,  35  Stat.,  128.  The  words 
"as  a])ove  provided"  refer  to  the  rates  of  pay 
for  the  various  ranks  as  prescribed  by  the 
act  of  May  13,  1908,  and  wliich  are  set  "forth 
above  in  the  notes  under  this  section.) 

The  additional  pay  pro\dded  by  the  act  of 
May_  13,  1908,  for  shore  duty  beyond  seas, 
applies  to  commissioned  officers  only;  mid- 
shipmen and  warrant  officers  are  not  entitled 
to  such  increase.  (14  Comp.  Dec,  882;  see 
also  Olliff  V.  U.  S.,  46  Ct.  Cls.,  349;  compare 
Prindle  v.  U.  S.,  41  Ct.  Cls.,  8.)  As  to  addi- 
tional pay  allowed  warrant  officers  for  foreign 
shore  duty,  see  act  of  July  11,  1919  (41  Stat., 
140),  noted  above  under  "Warrant  officers, 
acting  warrant  officers,  and  commissioned 
warrant    officers . ' ' 

The  act  of  March  2,  1901  (31  Stat.,  903), 
relating  to  the  Army,  provided  that  "here- 
after the  pay  proper  of  all  officers  and  en- 
listed men  serving  beyond  the  limits  com- 
prising the  Union  and  Territories  of  the  United 
States  contiguous  thereto  shall  be  increased 
ten  per  centum  for  officers  and  twenty  per 
centum  for  enlisted  men  over  and  above 
the  rates  of  pay  proper  as  fixed  by  law  for 
time  of  peace,  and  the  time  of  such  serWce 
shall  be  counted  from  the  date  of  departure 
from  said  States  to  the  date  of  return  thereto." 
(See  also  act  of  June  30,  1902,  32  Stat.,  512, 
to  same  effect.)  The  act  of  March  3,  1901 
(31  Stat.,  1108),  relating  to  the  naval  service, 
provided  that  "officers  of  the  Navy  and  officers 
and  enUsted  men  of  the  Marine  Corps  who 
haA'e  been  detailed  or  may  hereafter  he  de- 
tailed for  shore  duty  in  Alaska,  the  Philip- 
pine Islands,  Guam,  or  elsewhere  beyond 
the  continental  limits  of  the  United  States 
shall  be  considered  as  having  been  detailed 
for  '  shore  duty  beyond  seas '  and  shall  receive 
pay  accordingly,  with  such  additional  pay 
as  may  be  pro\aded  by  law  for  ser\ice  in 
island  possessions  of  the  United  States." 
The  act  of  March  3,  1899  (30  Stat.,  1007), 
provided  that  "when  naA'al  officers  are  de- 
tailed for  shore  duty  beyond  seas  they  shall 
receive  the  same  pay  and  allowances  as  are 
or  may  be  provided  by  or  in  pursuance  of  law 
for  officers  of  the  Army  for  duty  in  similar 
places."  Under  these  laws  it  was  held,  in 
McCully  V.  U.  S.  (42  Ct.  Cls.,  275),  that  an 
officer  of  the  Navy  detached  from  shore  duty 
beyond  seas  and  ordered  home  continues 
to  be  entitled  to  his  ten  per  cent  increase 
until  his  return  to  the  United  States.  The 
act  of  May  13,  1908,  does  not  change  the  law 
as  it  previously  existed  so  as  to  deprive  naval 
officers  of  the  right  to  increased  pay  while 
returning  home  upon  orders  from  foreign 
stations.  Said  act  expressly  provides  that 
"nothing  herein  shall  be  so  construed  as  to 
reduce  the  pay  or  allowances  now  authorized 
by  law  for  any  commissioned,  warrant,  or 
appointed    officers,    or   any   erdisted    man   of 


818 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1556. 


the  active  or  retired  lists  of  the  Navy,  and 
all  laws  inconsistent  with  this  pro^•ision  are 
hereby  repealed."  Taking  into  considera- 
tion the  clause  last  quoted,  and  the  legisla- 
tive proceedings,  which  show  that  it  was 
the  intention  of  Congress  in  the  act  of  May 
13,  1908,  to  place  officers  of  the  Ai-my,  Navj^, 
and  Marine  Corps  exactly  on  the  same  basis 
as  to  pay,  and  not  to  make  an  unjust  discrim- 
ination between  such  officers,  held,  that  offi- 
cers of  the  Navy  are  still  entitled  to  the  bene- 
fit of  the  act  of  March  2,  1901,  so  far  as  relates 
to  the  length  of  time  dm'ing  which  they  are 
entitled  to  the  increased  10  per  cent  of  pay 
for  shore  duty  beyond  seas.  (Gearing  v. 
U.  S.,  46  Ct.  Cls.,  187.) 

The  decision  of  the  Court  of  Claims  in  the 
Geai-ing  case  related  to  an  officer  who  en- 
tered the  Navy  prior  to  the  passage  of  the 
act  of  May  13,  1908,  and  is  not,  therefore, 
decisive  of  the  question  presented  in  the 
case  of  an  officer  who  entered  the  ser\ice  after 
that  date.  Nevertheless,  held,  that  officers 
of  the  Navy  appointed  after  said  act,  and 
who  are  detailed  for  shore  duty  beyond  seas, 
are  entitled  to  retain  the  10  per  cent  addi- 
tional pay  until  their  arrival  in  the  United 
States.  There  is  nothing  in  the  act  of  May 
13,  1908,  which  requires  that  said  additional 
pay  shall  cease  upon  their  detachment  from 
foreign  duty,  and  the  reasonable  inference 
fi-om  the  language  used  is  that  Congress  in- 
tended, when  it  said  that  this  increased  pay 
should  commence  from  the  date  of  sailing  from 
the  United  States,  that  the  point  of  departtu-e 
from  the  United  States,  indicated  as  the 
beginning  point  for  the  increased  pay,  should 
be  the  terminating  point  for  increased  pay 
upon  retiun.  (Comp.  Dec,  Jan.  24,  1914, 
155   S.   and  A.   Memo.,    2962.) 

Prior  to  the  act  of  March  2,  1901  (31  Stat., 
903),  Army  officers  were  not  allowed  the 
extra  pay  pro^'ided  for  foreign  service  from 
the  date  of  depaitiue  from  the  United  States 
to  the  date  or  return  thereto;  and  the  same 
was  true  as  to  naval  officers  recei\ing  Army 
pay  under  the  act  of  March  3,  1899.  (Mc- 
Gowan  v.  U.  S.,  49  Ct.  Cls.,  454,  citing  6  Comp. 
Dec,  947,   and  7  Comp.   Dec,   670.) 

WTiere  an  officer  of  the  Navy  was  detailed 
to  sea  duty  which  necessitated  a  journev  by  sea 
on  a  merchant  vessel  to  reach  the  place  ap- 
pointed for  such  duty,  he  is  not  an  officer  "de- 
tailed to  shore  duty  beyond  seas"  within  the 
meaning  of  section  13  of  the  Navy  personnel 
act  of  March  3,  1899  (30  Stat.,  1007).  Although 
his  duty  during  such  voyage  on  a  merchant 
vessel  was  not  sea  duty  and  did  not  entitle  him 
to  sea  pay,  neither  was  it  shore  duty  beyond 
seas,  first,  because  he  was  not  ordered  to  per- 
form the  latter  dut\%  and  second,  because  he 
never  actually  performed  any  such  duty  re- 
gardless of  h^  detail.  The  statutes  made  it 
ordinary  shore  duty.  (McGrowan  v.  U.  S.,  49 
Ct.  Cls.,  454.) 

The  claim  of  an  officer  detached  from  sea 
duty  abroad  for  additional  pay  for  performance 
of  shore  duty  beyond  seas  while  in  Manila 
waiting  for  the  Army  transport  in  which  he 
was  to  take  passage  back  to  the  United  States, 
and  his  claim  for  sea-duty  pay  while  aboard  said 
vessel  en  route  to  the  United  States,  is  governed 


by  the  decision  in  Farenholt  v.  U.  S.  (42  Ct. 
Cls.,  114,  noted  below).  (McDonald  v.  U.  S., 
48  Ct.  Cls.,  123;    see  also  note  to  sec.   1571, 

■RON 

The  act  of  May  13,  1908  (35  Stat.,  128),  pro- 
vides that  all  officers  on  sea  duty  and  all  officers 
on  shore  duty  beyond  the  continental  limits  of 
the  United  States  shall  receive  10  per  cent 
additional  pay  from  the  date  of  reporting  for 
duty  on  board  ship  or  of  sailing  from  the  United 
States;  but  it  also  pro\-ides  that  nothing  shall 
be  construed  so  as  to  reduce  the  pay  or  allow- 
ances then  authorized  by  law  for  officers  and 
enlisted  men.  The  first  provision  of  the  said 
act  was  intended  to  assimilate  the  pay  of  all 
officers  of  the  Army  and  Navy  performing  simi- 
lar duty  in  similar  circumstances,  but  the 
second  pro\-ision  saves  to  all  officers  any  legisla- 
tive discrimination  theretofore  existing  and 
preserves  intact  the  pay  and  allowances  exist- 
ing at  the  time  of  the  passage  of  the  act  of  1908. 
(McDonald  v.  U.  S.,  48  Ct.tls.,  123.) 

The  act  of  March  2,  1901  (31  Stat.,  903),  fol- 
lowed by  the  act  of  March  3,  1901  (31  Stat., 
1108),  pro\ided  in  terms  for  extra  pay  for  shore 
duty  beyond  the  limits  of  the  United  States  and 
expressly  applied  to  the  accounting  thereof 
"from  the  date  of  departure  from  said  States 
to  the  date  of  retm-n  thereto. "  In  ]\IcCully  v. 
United  States  (42  Ct.  Cls.,  275)  these  statutes 
were  appUed  to  naval  officers  on  shore  duty  be- 
yond seas,  under  the  assimilating  clause  of  the 
act  of  March  3,  1899,  section  13  (30  Stat.,  1007). 
It  follows  that  the  act  of  May  13,  1908,  saves  to 
officers  of  the  Naw  for  shore  dutj'-  beyond  seas 
the  pay  fixed  by  the  foregoing  enactments.  In 
Gearing  v.  United  States  (46  Ct.  Cls.,  187)  it 
was  held  that  the  act  of  May  13,  1908,  did  not 
repeal  the  statutes  upon  which  the  McCully 
case  was  based.  (McDonald  v.  U.  S.,  48  Ct. 
Cls.,  123.) 

Officers  of  the  Navy  are  entitled  to  the  10 
per  cent  increase  authorized  for  shore  duty  be- 
yond the  continental  limits  of  the  United 
States  while  on  duty  at_  the  naval  station 
Hawaii,  and  while  returning  to  the  United 
States  from  such  duty.  The  Army  act  of 
August  24,  1912  (37  Stat.,  576),  providing  that 
"hereafter  the  laws  allowing  increase  of  pay  to 
officers  and  enlisted  men  for  foreign  ser^dce 
shall  not  apply  to  ser\ice  in  the  Canal  Zone, 
Panama,  Hawaii,  or  Porto  Rico, "  does  not 
apply  to  officers  of  the  Navy  who  derive  their 
right  to  additional  pav  for  shore  duty  beyond 
seas  from  the  act  of  Mav  13,  1908.  (22  Comp. 
Dec,  35.) 

Shore  duty  beyond  seas  is  exceptional  duty, 
both  as  to  officers  of  the  Army  and  Navy,  and  a 
naval  officer  must  be  "detailed  for  shore  duty 
beyond  seas"  before  he  can  "receive  the  same 
pay  and  allowances  as  are  or  may  be  provided 
by  or  in  pursuance  of  law  for  officers  of  the 
Army  detailed  for  duty  in  similar  places, "  as 
prescribed  by  the  Navy  personnel  act  of  March 
3,  1899,  section  13.  (Ackley  v.  U.  S.,  40  Ct. 
Cls.,  216.) 

An  officer  of  the  Navy  assigned  by  proper 
authority  to  sea  duty  on  a  vessel  at  Guam  can 
not  be  considered  as  "detailed  for  shore  duty 
beyond  seas"  within  the  intent  of  the  Navy 
personnel  act  of  March  3,  1899,  section  13  m 
Stat..  1007),  and  the  act  of  March  3,  1901  (31 


819 


Sec.  1556. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Stat.,  1108),  because  the  governor  of  (uiam,  by 
a  verbal  order,  directed  him  to  do  duty  on 
shore.     (Furlong  v.  U.  8.,  45  Ct.  Cls.,  49:^.) 

Duty  performed  on  sliore  by  a  naval  oflicer 
without  naving  been  detailed  for  shore  duty 
must  be  regarded  as  temporary  service  per- 
formed while  he  otlicially  remains  on  board  thc^ 
vessel  to  wliieli  he  is  attached.  The  service 
of  a  naval  ofiic(>r  on  shore  duty  beyond  seas  is 
exceptional  service;  to  entitle  liitn  to  the  extra 

{)ay  tlierefor  he  must  show  that  he  A\as  detailed 
or  such  service.     (Furlong  v.   U.   S.,  45  Ct. 
Cls.,  49;^.) 

Tlie  naval  personnel  act  of  March  3,  1899, 
section  \?>,  alloAving  certain  oflicers  of  the 
Navy  the  same  pay  and  allowances  as  officers 
of  corresponding  rank  in  the  Anny,  did  not 
entitle  oflicers  of  the  Navy,  for  services  on 
naval  vessels  in  Philippine  and  Chinese 
waters,  or  be>'ond  the  limits  of  the  States 
comprising  the  Union,  to  the  10  per  cent 
additional  pay  giAen  to  Army  officers  under 
the  acts  of  May  2fi,  1900  (31  Stat.,  211),  and 
March  2, 1901  (.31  Stat.,  903).  Wliile  the  inten- 
tion of  Congress  in  the  personnel  act  was  to  put 
officers  of  corresponding  rank  in  the  Army 
and  Navy  on  the  same  general  footing  with 
respect  to  their  general  pay  and  to  make  the 
act  prospective  in  its  application  to  any  future 
legislation  by  which  the  general  pay  of  Army 
officers  might  be  increased.  Congress  may 
increase  the  pay  of  Army  oflicers  for  services 
in  particular  places  and  under  special  cir- 
cumstances without  thereby  intending  such 
increase  to  apply  to  naval  officers.  (U.  S. 
V.  Thomas,   195  U.   S.,  418.) 

A  naval  officer  performing  sea  service  in 
foreign  waters  was  not  entitled  by  the  Navy 
personnel  act  to  the  increased  10  per  cent 
of  pay  given  Army  officers  for  like  duty.  Only 
shore'  duty  beyond  seas  entitled  Navy  oflicers 
to  such  increased  pay.  (U.  S.  v.  Thomas, 
195  U.  S.,  418,  reversing  Thomas  v.  U.  S., 
38  Ct.  Cls.,  719;  see  also  Thomas  v.  U.  S.,  38 
Ct.   Cls.,   113.) 

Under  the  Navy  personnel  act,  section  13 
(30  Stat.,  1007),  and  the  act  of  May  26,  1900 
(31  Stat.,  211),  and  the  act  of  March  3,  1901 
(31  Stat.,  1108),  an  officer  .of  the  Navy  on 
shore  duty  in  the  Philippine  Islands  was 
entitled  to  the  increased  pay  allowed  for 
shore  duty  '-beyond  seas."  The  Philippine 
Islands  is  "beyond  seas"  within  the  mean- 
ing of  these  statutes.  (Irwin  v.  U.  S.,  38  Ct. 
Cls.,  87.) 

The  words  "pay  proper"  in  the  act  of  May 
26,  1900  (31  Stat.,  211),  includes  longe\dty 
pay,  and  the  increased  pay  allowed  for  sliore 
duty  in  the  Philippine  Islands  should  be 
computed  accordingly.  (Irwin  v.  U.  S., 
38  Ct.  Cls.,  87;  McCuUy  v.  U.  S.,  42  Ct.  Cls., 
275.) 

The  term  "beyond  seas"  generally  means 
out  of  the  Kingdom  of  England;  out  of  the 
United  States;  out  of  a  State.  The  term 
must  receive  the  legal  interpretation  usually 
given  to  it  in  this  country  and  in  England, 
unless  there  is  an  indication  to  the  contrary. 
When  the  act  of  May  26,  1900  (31  Stat.,  211), 
w^as  passed  the  Philippine  Islands  were  un- 
equivocally "beyond  seas"  \vithin  the  mean- 
ing of  the  act  of  March  3,  1899  (30  Stat.,  1007), 


as  the  treaty  under  which  it  became  a  pos- 
session of  the  ITnited  States  had  not  then  been 
ratified.     (Irwin  v.   U.    S.,   38  Ct.    Cls.,   87.) 

Service  in  Alaska  is  "shore  duty  beyond 
the  continental  limits  of  the  United  States," 
and  an  oflicer  performing  service  there  is 
entitled  to  the  increased  pay  provided  for 
such  service  under  the  act  of  May  13,  1908 
(37  Stat.,  128),  and  the  act  of  IMarch  3,  1901 
(31  Stat.,  1108).  (Downey  v.  U.  S.,  50  Ct. 
Cls.,  273.) 

Where  an  assistant  surgeon  in  the  Navy 
performed  shore  duty  beyond  seas,  at  a  naval 
hospital  in  the  Philippine  Islands,  pursuant 
to  an  order  detailing  him  for  such  duty,  he 
was  entitled  to  10  per  cent  additional  com- 
pensation calculated  on  the  basis  of  his  maxi- 
mum pay.  The  Philippine  Islands  constitute 
a  "foreign  station"  for  the  purpose  of  extra 
pay  under  the  act  of  May  26,  1900  (31  Stat., 
211),  which  was  in  force  when  he  performed 
such  duty.  (Thompson  v.  U.  S.,  49  Ct.  Cls., 
459.) 

The  duty  status  of  an  officer  serving  beyond 
seas  remains  the  same  for  all  purposes  until  his 
return  home.  His  detachment  from  ser\dce  be- 
yond seas  does  not  take  effect  until  his  return; 
and  his  duty  status  continues  during  delay  in 
returning,  if  such  delay  was  allowed  as  leave  of 
absence  and  he  was  entitled  to  such  leave  by 
law.  The  permission  given  to  the  officer  in  this 
case,  to  delay  two  months  in  returning  to  the 
United  States,  in  effect  and  as  a  matter  of  fact 
gave  him  a  leave  of  absence  for  sixty  days. 
(Izard  V.  U.S.,  48  Ct.  Cls.,  367.  Under  prior 
laws  it  had  been  held  that  officers  were  entitled 
to  the  increased  pay  only  while  performing 
shore  duty  beyond  seas,  and  not  while  in  transi- 
tu or  sick  in  hospital  abroad.  See  Farenholt  v. 
U.  S.,  42  Ct.  Cls.,  114;  Thompson  v.  U.  S.,  49 
Ct.  Cls.,  459.) 

A  naval  officer  ordered  to  a  hospital  for  treat- 
ment while  waiting  the  arrival  of  a  vessel  to 
which  he  was  to  be  attached  will  not  be  entitled 
while  in  hospital  to  shore  duty  pay  "beyond 
seas,"  under  the  Navy  personnel  act,  section 
13.     (Ackley  v.  U.  S.,  40  Ct.  Cls.,  216.) 

An  officer  of  the  Navy  while  on  shore  duty 
beyond  seas  is  entitled  when  on  leave  of  ab- 
sence taken  abroad  to  the  increased  pay  pro- 
\dded  for  such  duty  by  the  act  of  May  13,  1908. 
(19  Comp.  Dec,  608.) 

A  naval  officer  granted  leave  of  absence  from 
shore  duty  beyond  seas  is  entitled  to  the  addi- 
tional pay  provided  for  such  duty  while  en 
route  to  the  United  States  and  during  the 
period  of  his  return  therefrom  to  his  post  of 
duty,  but  is  not  entitled  to  such  pay  while  in 
theUnited  States.     (21  Comp.  Dec,  604.) 

The  Comptroller  of  the  Treasury  has  re- 
peatedly held  that  an  officer  is  not  entitled  to 
additional  pay  for  service  beyond  seas  while  in 
the  United  States,  whether  on  temporary  duty 
or  on  leave.  (Comp.  Dec,  Jan.  17,  1916,  179  S. 
and  A.  Memo.,  3870.) 

When  a  naval  officer  on  sea  duty  is  ordered  to 
certain  duty  on  shore  beyond  seas,  which  duty 
is  described  in  his  orders  as  being  a,dditional 
but  which,  in  fact,  requires  his  attention  to  the 
exclusion  of  all  other  duty,  he  is  to  be  regarded, 
for  purposes  of  pay  and  allowances,  as  being  on 
shore  duty  beyond  seas  during  the  period  of 


820 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1556. 


such  duty.  (21  Comp.  Dec,  604);  but  his  sea- 
duty  status  continues,  and  he  does  not  become 
an  officer  sen'ing  on  shore  duty  beyond  seas 
unless  he  can  establish  as  a  matter  of  fact  that 
the  duties  performed  by  him  on  shore  were 
paramount  to  his  assignment  to  sea  service. 
(Leach  v.  U.  S.,  44  Ct.  Cls.,  132;  see  also  Fur- 
long ('.  U.  S.,  45  Gt.  Cls.,  493.) 

An  officer  of  the  Navy  detached  from  a  ship  in 
foreign  waters  and  ordered  to  duty  at  a  foreign 
station  is  not  entitled  to  traveling  expenses 
while  awaiting  transportation  to  his  station  nor 
to  the  10  per  cent  additional  for  sea  duty  while 
en  route  to  his  station  on  board  a  Government 
vessel.  (Comp.  Dec,  June  30,  1916,  184,  S. 
and  A.  Memo.,  4007.) 

The  law  makes  no  provision  for  10  per  cent 
increase  of  naval  officers'  pay  while  traveling 
from  shore  duty  beyond  seas  to  join  a  \'essel  in 
foreign  waters,  or  \ice  versa.  (Comp.  Dec, 
June  24,  1913,  148  S.  and  A.  Memo.,  2662.) 

An  officer  of  the  Navy  who  is  ordered  from 
foreign  shore  dutv  to  duty  on  board  a  vessel  in  a 
United  States  port  is  entitled  to  the  10  per  cent 
additional  pay  for  shore  duty  beyond  seas  to 
the  date  of  his  return  to  the  United  States. 
(Comp.  Dec,  Nov.  20,  1916,  189  S.  and  A. 
Memo.,  4094.) 

Sea  duty. — See  note  to  section  1571,  Revised 
Statutes. 

Acting  as  pay  officer. — See  sections  1381  and 
1564,  Revised  Statutes. 

39.  Longevity  pay. — "There  shall  be  al- 
lowed and  paid  to  each  commissioned  officer  be- 
low the  rank  of  rear  admiral  ten  per  centum  of  his 
current  yearly  pay  for  each  term  of  five  years 
service  in  the  Army,  Navy,  and  Marine  Corps. 
The  total  amount  of  such  increase  for  length  of 
service  shall  in  no  case  exceed  forty  per  centum 
of  the  yearly  pay  of  the  grade  as  proxdded  by 
law:  Provided,  That  the  annual  pay  of  captain 
shall  not  exceed  five  thousand  dollars  per 
annum;  of  commander,  four  thousand  five 
hundred  dollars  per  annum,  and  of  lieutenant 
commander,  four  thousand  dollars  per  annum." 
(Act  May  13,  1908,  35  Stat.,  128.  As  to  tempo- 
rary increases  in  pay  of  the  grades  specified, 
see  notes  above,  under  this  section.) 

As  to  longevity  increases  in  pay  of  commis- 
sioned warrant  officers,  warrant  officers,  mates. 
Dental  Corps,  and  Naval  Reserve  Force,  see 
notes  above  with  reference  to  those  specific 
classes. 

"For  the  purposes  of  computing  longevity 
pay,  and  retirement  privileges  of  officers  and 
enlisted  men  of  the  Navy,  all  creditable  service 
in  the  Coast  Guard  and  former  Revenue-Cutter 
Servdce  shall  be  counted."  (Act  June  4,  1920, 
41  Stat.,  835.) 

"Hereafter  longevity  pay  for  officers  in  the 
Army,  Navy,  Marine  Corps,  Coast  Guard,  Pub- 
lic Health  Service,  and  Coast  and  Geodetic 
Survey  shall  be  based  on  the  total  of  all  service 
in  any  or  all  of  said  services."  (Act  May  18, 
1920,  sec.  11,  41  Stat.,  604.) 

"All  officers  of  the  Navy  shall  be  credited 
with  the  actual  time  they  may  have  served  as 
officers  or  enlisted  men  in  the  Regular  or  Volun- 
teer Army  or  Navy,  or  both,  and  shall  receive 
all  the  benefits  of  such  actual  service  in  all  re 
spects  in  the  same  manner  as  if  all  said  service 
had  been  continuous  and  in  the  Regular  Navy 


in  the  lowest  gi-ade  having  graduated  pay  held 
by  such  officer  since  last  entering  the  service." 
(Act  Mar.  3,  1883,  22  Stat.,  473.) 

"All  officers  who  have  been  or  may  be  ap- 
pointed to  any  corps  of  the  Navy  or  to  the 
Marine  Corps  after  service  in  a  different  corps 
of  the  Navy  or  of  the  Marine  Corps  shall  have 
all  the  benefits  of  their  previous  service  in  the 
same  manner  as  if  said  appointments  were  a 
reentry  into  the  Navy  or  into  the  Marine 
Corps."     (Act  June  10,  1896,  29  Stat.,  361.) 

"Officers  who  have  been,- or  may  be,  trans- 
ferred from  the  volunteer  service  to  the  Regular 
Navy  shall  be  credited  Avith  the  sea  service 
performed  by  them  as  volunteer  officers,  and 
shall  receive  all  the  benefits  of  such  duty  in  the 
same  manner  as  if  they  had  been,  during  such 
service,  in  the  Regular  Navy."     (Sec.   1412, 

"RON 

By  act  of  March  3,  1899  (30  Stat.,  1007),  it 
was  provided  that  "all  officers,  including 
warrant  officers,  who  have  been  or  may  be  ap- 
pointed to  the  Na\'y  from  civil  life  shall,  on 
the  date  of  appointment,  be  credited  for  com- 
puting their  pay,  with  five  years'  service." 
By  act  of  March  4,  1913  (37  Stat.,  891),  it  was 
provided  that  this  provision  "shall  not  apply 
to  any  person  entering  the  Navy  from  and  after 
the  passage  of  this  act." 

"Hereafter  the  service  of  a  midshipman  at 
the  United  States  Naval  Academy,  or  that  of  a 
cadet  at  the  United  States  Military  Academy, 
who  may  hereafter  be  appointed  to  the  United 
States  Naval  Academy,  or  to  the  United  States 
Military  Academy,  shall  not  be  counted  in 
computing  for  any  purpose  the  length  of  service 
of  any  officer  in  the  Navy  or  in  the  Marine 
Corps."     (Act  Mar.  4,  1913,  37  Stat.,  891.) 

The  act  of  March  3,  1883  (22  Stat.,  473),  en- 
titles an  officer  to  be  credited  with  actual  serv- 
ice only,  and  does  not  include  constructive 
service  credited  to  an  officer  under  a  special  act 
of  Congress.     (Laws  v.  U.  S.,  27  Ct.  Cls.,  69.) 

Longevity  pay  is  to  be  computed,  except 
where  the  statutes  otherwise  provide,  from  the 
date  the  officer's  commission  was  signed  by  the 
President,  and  not  from  an  antecedent  date 
mentioned  in  the  body  of  the  commission. 
Under  section  1556,  Revised  Statutes,  the  right 
of  naval  officers  to  the  longevity  pay  provided 
therein  depends  upon  the  words  "date  of  com- 
mission" as  used  in  that  section;  and  the  legal 
construction  to  be  given  to  those  words  is  the 
date  when  the  instrument  was  executed;  the 
President  for  other  purposes  may  insert  an  ante- 
cedent date  in  the  body  of  a  commission;  but 
antecedent  date  can  affect  an  officer's  pay  oidy 
in  the  cases  authorized  by  statute.  (Young  v. 
U.  S.,  19  Ct.  Cls.,  145.) 

The  words  "current  yearly  pay,"  as  em- 
ployed in  Revised  Statutes,  section  1262,  were 
construed  in  United  States  v.  Tyler  (105  U.S., 
244)  to  require  that  the  calculation  of  longevity 
pay  should  be  made,  not  upon  the  sum  of  the 
loase  pay  but  on  the  base  pay  and  previous 
longevity  increases  thereof .  Subsequently,  by 
the  act  of  June  30,  1882  (22  Stat.,  118),  Congress 
expressly  dhected  that  the  longevity  increases 
provided  in  section  1262  should  be  computed 
"on  the  yearly  pay  of  ihe  grade."  This  act 
was  passed  for  the  purpose  of  commanding  a 
method  of  computation  which  would  render 


821 


Sec.  1556. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


inapplicable  the  construction  adopted  in  the 
Tyler  case  (citing  U.  S.  v.  Miller.  208  V.  S.,  32, 
38).  Thereafter  the  lonsrevity  pay  of  Army 
officers  was  computed  by  the  method  directed 
in  the  act  of  1882.  lu  view  of  the  purpose  of 
Conpress  to  equalize,  as  far  as  possible,  tne  pay 
of  Army  and  Xavy  ofiicei-s,  manifested  by  the 
adoption  of  the  XaAy  pei-sonnel  act  of  1899  and 
in  all  subsequent  legislation  as  to  such  pay, 
held,  that  the  act  of  ^fay  13,  1908  (35  Stat.,  127, 
128),  providino;  longevity  increases  for  Na^'y 
officers  based  upon  their  '"'current  vearly  pay," 
was  intended  to  pro^•ide  that  the  longevity  in- 
crease therein  prescril)ed  should  be  computed 
according  to  the  method  then  prevailing;  that 
is,  upon  the  "yearly  pay  of  the  grade,"  and  not 
upon  the  "cvurent  yearlv  pav"  as  construed  in 
the  Tvler  case.  (Plumrner  v.  U.  S.,  224  U.  S., 
137.)  ' 

The  words  "officers  or  enlisted  men  in  the 
Regular  or  Volunteer  Anuy  or  Navy,  or  both," 
as  used  in  the  law  relating  to  longevity  of 
officers  of  the  Na^y  (see  act  of  Mar.  3,  1883, 
above  quoted),  were  intended  to  include  all 
men  regularly  in  the  ser-\ace  in  the  Army  or 
Na\'y :  the  expression"  officers  or  enlisted  men," 
is  not  to  be  construed  distributively,  as  re- 
quiring that  a  person  should  be  an  enlisted 
man.  or  an  officer  nominated  and  appointed  by 
the  President,  or  by  the  head  of  a  department, 
but  was  meant  to  include  all  men  in  service, 
either  by  enlistment  or  regular  appointment  in 
the  Army  or  Navy;  the  word  "officer"  is  used 
in  the  statute  in  a  more  general  sense.  (U.  S. 
V.  Hendee,  124  U.  S.,  309,  313,  followed  in 
U.  S.  V.  Cook,  128  U.  S.,  254,  257.) 

An  officer  of  the  Navy  is  entitled  under  the 
act  of  March  3,  1883,  to  credit  for  ser\dce  ren- 
dered by  him  as  a  pa\Tnaster's  clerk  in  com- 
puting his  longe\ity  pay,  although  siich  pay- 
master's clerk,  under  the  law  as  it  then  existed, 
was  neither  an  enlisted  man  nor  an  "officer"  in 
the  constitutional  sense.  (U.  S.  v.  Hendee, 
124  U.  S.,  309,  distinguishing  U.  S.  v.  Mouat, 
124  U.  S.,  303.)  _ 

Service  as  a  midshipman  at  the  Naval  Acad- 
emy was  service  as  an  officer  of  the  Navy,  and 
should  be  credited  to  an  officer  of  the  Na\'y  in 
computing  his  longevity  pav  under  the  act  of 
March  3,  1883.  (U.  S.  v.  Baker,  125  11.  S.,  646; 
see  also  U.  S.  v.  Cook,  128  U.  S.,  254;  U.  S.  v. 
Morton,  112  U.  S.,  1;  U.  S.  v.  Watson,  130  U.  S., 
80;  but  see  act  ^lar.  4,  1913,  quoted  above,  with 
reference  to  midshipman  service.) 

An  officer  who  was  not  in  the  Navy  on  the 
date  of  the  act  (^lar.  4,  1913)  abolishing,  under 
certain  conditions,  credit  for  constructive  serv- 
ice, but  who  was  appointed  to  the  Na\y^  after 
that  date,  is  entitled  to  credit  for  prior  service, 
both  actual  and  constructive,  based  upon  a  for- 
mer appointment  to  the  Navy.  The  said 
act  did  not  deprive  officers  then  in  the  Navy,  or 
thereafter  reappointed,  of  credit  for  such  serv- 
ice previously  earned.  (22  Comp.  Dec,  542; 
see  also,  24  Comp.  Dec,  168,  24  Comp.  Dec, 
629,  and  204  S.  and  A.  Memo.,  4505.) 

Service  by  an  officer  of  the  Navy  as  an  en- 
listed man  in  the  Marine  Corps  is  to  be  credited 
to  him  in  calculating  his  longevity  pav  under 
the  act  of  March  3,  1883.  (U.  S.  v.  Dunn,  120 
U.  S.,  249.) 


The  word  "service"  in  section  1262,  Revised 
Statutes,  providing  increased  pay  for  officers  of 
the  Army  "for  each  term  of  five  years  of  serv- 
ice," e\'identlv  means  "militarv  service." 
(U.  S.  V.  La  Tourrette,  151  U.  S.,  572.) 

An  aid  to  a  rear  admiral  is  not  entitled  to 
have  his  longevity  pay  calculated  upon  the 
additional  pay  which  he  receives  as  aid,  that 
being  an  allowance  in  addition  to  and  not  a  part 
of  the  pav  of  his  rank.  (U.  S.  v.  Miller,  208 
U.  S.,  32.) 

A  retired  officer  of  the  Navy  is  not  entitled, 
in  computing  his  longe\'ity  pay,  to  credit  for 
service  rendered  after  his  retirement.  (Roget 
V.  U.  S.,  148  U.  S.,  167;  see  also,  Thornlev  v. 
U.  S.,  113  U.  S.,  310;  Faust  v.  U.  S.,  42  Ct.  Cls., 
94;  15  Comp.  Dec,  76/;  compare,  U.  S.  v. 
Tyler,  105  U.  S.,  244;  5  Comp.  Dec,  809;  and 
see  notes  to  sees.  1588  and  1592,  R.  S.,  as  to  lon- 
gevity increases  of  retired  officers  under  later 
laws.) 

An  officer  of  the  Regular  Navy  who  was  cred- 
ited, under  the  act  of  March  3,  1883,  with  prior 
ser\'ice  rendered  by  him  in  the  Volunteer 
Navy  is  not  entitled  to  receive  the  pay  of  higher 
grades  in  the  Naw  from  the  dates  that  he  might 
have  been  promoted  to  such  grades  had  he  en- 
tered the  Regular  Navy  when  he  entered  the 
Volunteer  Nav-y,  and  had  he  been  promoted 
from  time  to  time  under  the  rule  of  promotion 
provided  by  law  for  the  Regular  Navy;  the 
court  can  not  concur  in  the  contention  of  such 
officer  that  under  the  act  of  1883,  officers  in  his 
situation,  while  denied  rank  and  commissions 
under  the  statute,  have  the  right  to  the  pay  of 
the  se^"eral  grades  they  might  have  reached  if 
their  appointments  in  the  Regular  Navy  are 
treated  as  having  been  made  at  the  date  of  their 
entry  into  the  volunteer  ser^'ice.  (Barton  v. 
U.  S.,  129  U.  S.,  249.) 

As  to  the  method  of  computing  longe^dty 
increases  under  the  act  of  March  3,  1883,  in  the 
cases  of  officers  recei"ving  graduated  pay  under 
section  1556,  Revised  Statutes,  see  United 
States  V.  Mullan  (123  U.  S.,  186),  United  States 
V.  Green  (138  U.  S.,  293),  United  States  v.  Alger 
(151  U.  S.,  362),  United  States  v.  Alger  and 
United  States  v.  Stahl  (152  U.  S.,  384),  United 
States  V.  Rockwell  (120  U.  S.,  60),  White  v. 
United  States  (191  U.  S.,  545),  United  States  v. 
Foster  (128  U.  S.,  435). 

For  other  cases,  as  to  what  time  coimts  as 
service  in  the  Navy,  see  note  to  section  14-13, 
Re\ised  Statutes,  and  see  Bvrnes  v.  United 
States  (26  Ct.  Cls.,  302),  and  "Davis  v.  United 
States  (28  Ct.  Cls.,  21). 

The  act  of  March  3,  1883  (22  Stat.,  473),  is  not 
limited  to  officers  who  had  entered  the  Navy 
more  than  once,  but  applies  also  to  officers  who 
have  served  continuously;  when  such  an  officer 
enters  the  serA-ice  only  once,  his  first  entry  is 
also  his  last  entrv  within  the  meaning  of  the 
statute.     (Mullan"  t'.  U.  S.,  123  U.  S.,  186.) 

Where  an  oflicer  resigns  one  office  the  day 
before  his  appointment  to  a  higher  one,  in  sub- 
stance and  in  law  his  actual  serAdce  was  for  a 
continuous  period  and  not  for  two  different 
periods.  (IT.  S.  r.  Alger,  151  U.  S.,  362;  U.  S. 
V.  Stahl,  151  U.  S.,  366;  U.  S.  v.  Alger,  152  U. 
S.,  384.) 


822 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1556. 


Where  at  the  time  of  resigning  from  the  Navy 
it  is  the  intention  and  pm-pose  of  an  officer  to 
reenter  the  service,  and  as  soon  aa  he  can  do  so 
thereafter  he  does  reenter  the  service,  such  last 
appointment  is  not  "from  civil  life"  as  con- 
templated bv  section  13  of  the  Navy  personnel 
act  of  March  3,  1899.  (Barber  v.  it.  S.,  50  Ct. 
Cls.,  250.  See  also  U.  S.  v.  U.  S.  Fidelity  and 
Guaranty  Co.,  244  Fed.  Rep.,  310.) 

The  reinstatement  of  an  officer,  pursuant  to  a 
special  act  of  Congress,  is  not  an  appointment 
from  civil  life  entitling  him  to  credit  for  con- 
structive ser-\dce  under  the  act  of  March  3,  1899, 
section  13.     (Stirling  v.  U.  S.,  48  Ct.  Cls.,  386.) 

The  credit  of  five  years'  constructive  sei'vice 
under  the  act  of  March  3,  1899,  section  13,  is  in 
addition  to  actual  service  rendered  under  a 
previous  appointment.  (Guilmette  r.  U.  S., 
49  Ct.  Cls.,  188;  52  Ct.  Cls.,  219.) 

Where  the  resignation  of  an  officer  of  the  Navy 
is  in  good  faith,  and  he  is  thereafter  appointed 
to  serve  in  the  Navy,  such  latter  appointment 
is  from  civil  life  and  he  is  entitled  to  credit  for 
five  years'  constructive  ser\'ice.  (Guilmette  v. 
U.  S.,  49  Ct.  Cls.,  188,  52  Ct.  Cls.,  219.) 

Where  an  officer  was  rated  as  an  appointee 
from  ci\T.l  life  and  for  a  number  of  years  paid 
accordingly,  he  is  entitled  to  retain  the  pay  so 
allowed  until  the  date  his  rating  was  corrected, 
although  under  the  correct  interpretation  of  the 
law  he  was  not  appointed  from  civil  life.  (U. 
S.  V.  U.  S.  Fidelity  and  Guaranty  Co.,  244 
Fed.  Rep.,  310.) 

40.  Absence  from  duty.  See  notes  above, 
under  "Mates";  "Warrant  officers,  acting  war- 
rant officers,  and  commissioned  warrant  officers" ; 
"Dental  Corps  and  Nurse  Corps  (Female)"; 
"Naval  Reserve  Force  (pay  for  active  duty) "; 
"Additional  pay  for  special  duty  (Aids  to  rear 
admirals.  Aviation  duty,  and  Shore  duty  be- 
yond seas)." 

Leave  and  waiting  orders. — In  Hunt  v.  United 
States  (38  Ct.  Cls.,  704)  the  Court  of  Claims 
said:  "Neither  the  Secretary  of  War  nor  any 
officer  of  the  Government  can  force  a  leave  of 
absence  or  furlough  upon  an  officer  or  soldier." 
But  as  to  furlough,  see  section  1442,  Revised 
Statutes,  and  note  thereto. 

"A  leave  of  absence  is  not  forced  upon  an 
officer,  but  is  granted  to  him  for  his  sole  accom- 
modation." (16  Comp.  Dec,  617;  see  also 
note  to  sec.  1442,  R.  S.) 

Prior  to  July  1,  1899,  when  the  thirteenth 
section  of  the  Navy  personnel  act  took  effect, 
the  duty  pay  and  leave  pay  of  all  commissioned 
officers  on  the  active  list  of  the  Navy  were  fixed 
by  section  1556,  Revised  Statutes.  That  sec- 
tion fixed  the  pay  of  each  officer  of  different 
grades,  whether  on  duty  or  leave,  or  on  waiting 
orders,  including  the  Construction  Corps,  pro- 
fessors of  mathematics,  and  civil  engineers. 
Section  13  of  the  personnel  act  assimilating  the 
pay  of  commissioned  officers  of  the  Navy  %vith 
that  of  Army  officers  of  corresponding  rank, 
was  confined  to  "commissioned  officers  of  the 
line  of  the  Navy  and  of  the  Medical  and  Pay 
Corps."  This  left  the  Construction  Corps,  pro- 
fessors of  mathematics,  and  civil  engineers 
where  they  were  before.  The  leave  pay  and 
waiting-orders  pay  of  officers  of  the  Army  to 
which  the  pay  of  certain  naval  officers  was  thus 
assimilated  is  regulated  by  section  1265,  Re- 


vised Statutes,  which  provides:  "Officers  when 
absent  on  account  of  sickness  or  wounds,  or 
lawfully  absent  from  duty  and  waiting  orders, 
shall  receive  full  pay;  when  absent  Avith  leave, 
for  other  causes,  full  pay  during  such  absence 
not  exceeding  in  the  aggregate  thirty  days  in 
one  year,  and  half  pay  during  such  absence 
exceeding  thirty  days  in  one  year.  When  ab- 
sent -without  leave,  they  shall  forfeit  all  pay 
dm-ing  such  absence,  unless  the  absence  is  ex- 
cused as  unavoidable."  This  section  was 
amended  by  the  act  of  July  29,  1876  (19  Stat., 
102),  so  as  to  provide  that  "all  officers  on  duty 
shall  be  allowed,  in  the  discretion  of  the  Secre- 
tary of  War,  sixty  days  leave  of  absence  without 
deduction  of  pay  or  allowances:  Provided, 
That  the  same  be  taken  once  in  two  years: 
And  provided  further ,  That  the  leave  of  absence 
may  be  extended  to  three  months,  if  taken  only 
once  in  three  years,  or  four  months  if  taken 
only  once  in  four  years."  The  act  of  May  13, 
1908  (35  Stat.,  127),  provided  that  "hereafter 
all  commissioned  officers  of  the  active  list  of  the 
Navy  shall  receive  the  same  pay  and  allow- 
ances according  to  rank  and  length  of  service 
*  *  *."  One  of  the  purposes  of  this  act  was 
to  correct  the  discrimination  in  respect  of  leave 
pay  between  commissioned  officers  of  the  Navy 
whose  pay  was  assimilated  with  that  of  the 
Army  by  section  13  of  the  personnel  act  and 
officers  of  the  Construction  Corps,  professors  of 
mathematics,  and  civil  engineers,  who  con- 
tinued to  receive  pay  at  the  rates  provided  by 
section  1556,  Revised  Statutes.  By  said  act  of 
May  13,  1908,  all  commissioned  officers  of  the 
Navy  were  placed  upon  the  same  footing  as  to 
pay  and  allowances,  "according  to  rank  and 
length  of  service,"  whether  on  active  duty  or 
not,  and  officers  of  the  Construction  Corps,  pro- 
fessors of  mathematics,  and  civil  engineers  ac- 
cordingly are  entitled  to  the  same  benefits  of  the 
law  relating  to  the  pay  of  Army  officers  when 
on  leave  of  absence  or  on  waiting  orders  that 
are  conferred  upon  officers  of  the  line  of  the 
Navy  and  of  the  Medical  and  Pay  Corps  (now 
Supply  Corps).  (27  Op.  Atty.  Gen.,  261;  fol- 
lowed, Comp.  Dec,  Apr.  16,  1909,  98  S.  and  A. 
Memo.,  1036.) 

"The  leave  year  is  reckoned  from  July  1  to 
the  following  June  30,  both  inclusive. ' '  (Army 
Regs.,  1913,  par.  1276.) 

A  retired  naval  officer  assigned  to  active 
duty  is  not  entitled  to  cumulative  leave  of 
absence  that  had  accrued  prior  to  his  retirement, 
notwithstanding  the  fact  that  his  assignment  to 
active  duty  occurred  immediately  after  his 
retirement.     (23  Comp.  Dec,  307.) 

The  leave  of  absence  of  an  officer  of  the  Navy 
who  was  ordered  to  his  home  and  granted  a 
leave  of  absence  began  when  he  was  relieved 
from  duty  on  board  his  vessel,  and  he  is  not 
entitled  to  duty  pay  while  traveling  to  his 
home,  as  said  travel  was  performed  for  his  ovra 
benefit  and  not  on  public  business.  (Comp. 
Dec,  Apr.  13,  1910,  110  S.  and  A.  Memo.,  1375.) 

An  officer  of  the  Navy  ordered  to  proceed  to 
his  home  and  granted  a  leave  of  absence,  and  at 
the  expiration  of  such  leave  to  return  to  his 
station,  is  traveling  for  his  own  pleasure  and 
benefit  and  not  on  public  business,  and  is  not 
entitled    to   mileage.     (16    Comp.    Dec,    611; 


823 


Sec.  1556. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


see  also  Comp.  Dec,  June  23,  1910,  112  S.  and 
A.  Memo.,  1504.)  . 

Section  1265,  Revised  Statutes,  pro\ides  that 
officers  shall  be  entitled  to  30  days'  leave  of 
absence  in  one  vear;  and  the  act  of  July  29, 
1876  (19  Stat.,  102),  provides  that  leave  of  ab- 
sence may  be  extended  in  the  discretion  of  the 
Secretary  of  War  "to  four  months  if  taken  only 
once  in  four  years."  An  officer  of  the  Navy 
detached  from  duty  beyond  seas  and  ordered  to 
return  home,  and  who  is  afterwards  authorized 
to  delay  two  months  en  route  to  the  United 
States,  is  in  effect  and  as  a  matter  of  fact  s:iven 
a  leave  of  absence  of  60  days,  and  he  is  entitled 
during  such  leave  to  continue  in  receipt  of  pay 
allowed  him  for  shore  duty  beyond  seas,  pro- 
vided such  leave  of  absence  was  not  in  excess 
of  that  to  which  he  was  entitled  by  law.  (Izard 
V.  U.  S.,  48  Ct.  Cls.,  367.) 

An  officer  ordered  away  from  his  station  to 
appear  before  an  examinina;  board  preliminai-y 
to  promotion,  and  who  after  completing  his 
examination  is.  iipon  his  own  request,  author- 
ized to  delay  his  retiu-n  to  his  station,  is  during 
such  delay  in  the  status  of  leave  oi  absence 
granted  upon  his  ovm  request,  being  in  fact 
relieved  from  duty  and  _  from  responsibility 
during  such  period,  notwithstanding  the  pro- 
visions of  the  Na\'y  Regulations  that  "a  tem- 
porary leave  of  absence  does  not  detach  an 
officer  from  duty  nor  affect  his  rate  of  pay." 
(Roberts  v.  U.  S.,  44  Ct.  Cls.,  411.) 

A  commissioned  officer  of  the  Navy  is  not 
entitled  to  the  10  per  cent  additional  for  sea 
duty  while  on  leave  of  absence,  even  though 
the  leave  be  of  only  one  day's  diu-ation. 
(Comp.  Dec,  June  8, 1915, 172  S.  and  A.  Memo., 
3703.^ 

The  act  of  May  13,  1908,  did  not  repeal  prior 
statutes  regulating  the  pay  of  naval  officers  of 
the  Line  and  Pay  Corps  [now  Supply  Corps] 
while  on  leave  of  absence,  and  such  officers 
while  temporarily  absent  from  their  ship  on 
leave  properly  granted  to  them  for  periods  not 
in  excess  of  that  authorized  with  fiiU  pay  by 
section  1265  of  the  Revised  Statutes  and  the  act 
of  July  29,  1876,  are  entitled  to  the  present  pay 
of  their  grades,  increased  by  their  length  of 
service  pay,  in  accordance  with  the  act  of  ]\Iay 
13,  1908;  othertvise,  to  half  of  such  amount  for 
leave  so  granted  in  excess  of  that  authorized  by 
such  statutes  with  full  pay  but  such  officers  are 
not  entitled  to  receive  while  on  leave  of  ab- 
sence from  sea  duty  the  10  per  cent  increase  in 
pay  which  they  were  receiving  "while  so  serv- 
ing." notwithstanding  the  pro\-ision  in  the  act 
of  July  29,  1876,  that  the  authorized  leave  of 
absence  shall  be  "without  deduction  of  pay  or 
allowances."     (15  Comp.  Dec,  656.) 

A  warrant  officer  of  the  Na\'y  granted  leave  of 
absence  from  duty  at  sea  is  entitled  under  the 
act  of  August  29,  1916  (39  Stat.,  578),  to  full  pay 
at  the  rate  received  by  him  while  on  sea  duty. 
(23  Comp.  Dec.  200.  Note:  The  act  of  August 
29,  1916,  provides  that  "warrant  officers  shall 
be  allowed  such  leave  of  al^sence,  with,  fidl  pay, 
as  is  now  or  may  hereafter  be  allowed  other 
officers  of  the  United  States  Na\T-") 

A  commissioned  officer  of  the  Navy  is  en- 
titled only  to  half  pay  while  on  leave  of  absence 
in  excess  of  the  amount  authorized  by  statute 


mth  full  pav.     fComp.  Dec,  June  25,  1913, 
148  S.  and  a!  Memo.,  2670.) 

An  officer  of  the  Army  granted,  and  accept- 
ing, leave  without  pay  is  not  estopped  fi'om 
demanding  the  halt  pay  allowed  by  statute, 
even  though  he  did  not  protest  at  the  affixing 
of  such  a  condition  to  the  order  granting  the 
leave.  Public  policy  prohibits  any  attempt 
by  unauthorized  agreement  with  an  officer  of 
the  United  States,  under  the  guise  of  a  condition 
or  otherwise,  to  deprive  him  of  the  right  to  pay 
given  by  statute.  (U.  S.  v.  Andrews,  240  U.  S., 
90,  approving  Glavey  v.  U.  S.,  182.  U.  S.,  595.) 
An  officer  of  the  Army  who  is  ordered,  even 
on  his  own  request,  to  proceed  to  a  particular 
place,  including  his  home,  and  "there  await 
orders,"  reporting  thence  by  letter  to  the  Adju- 
tant General  of  the  Army  and  to  the  head- 
quarters of  the  department  to  which  he  then 
belongs,  is  not  an  officer  "absent  fi-om  duty 
with  leave-'  within  the  meaning  of  an  act  of 
Congress  which  enacted  that  "any  officer  absent 
from  duty  with  leave,  except  fi'om  sickness  or 
wounds,  shall  during  his  absence  receive  half 
of  the  pay  and  allowances  prescribed  by  law, 
and  no  more."  Such  an  officer  is  waiting 
orders  in  pursuance  of  law,  but  not  absent  from 
duty  on  leave.  (U.  S.  v.  Williamson,  23 
Wall.,  411.) 

The  distinction  between  the  case  of  an  officer 
"absent  from  diity  with  leave,"  and  that  of  an 
officer  ordered  to  proceed  to  a  particular  place 
and  there  "to  await  orders,  reporting  thence  by 
letter  to  the  Adjutant  General  of  the  Army  and 
to  these  headquarters,"  is  too  plain  to  require 
much  comment.  While  absent  from  duty 
"with  leave,"  the  officer  is  at  liberty  to  go 
where  he  will  during  the  permitted  absence,  to 
employ  his  time  as  he  pleases,  and  to  smrender 
his  leave  if  he  chooses.  If  he  reports  himself 
at  the  expiration  of  his  leave,  it  is  all  that  can 
be  asked  of  him.  The  obligations  of  an  officer 
directed  to  proceed  to  a  place  specified,  there 
to  await  orders,  are  quite  different.  _  It  is  his 
duty  to  go  to  that  place  and  to  remain  at  that 
place.  He  can  not  go  elsewhere;  he  can  not 
return  until  ordered.  He  is  as  much  under 
orders,  and  can  no  more  question  the  duty  of 
obedience  than  if  ordered  to  an  ambush  to  lie 
in  wait  for  the  enemy,  to  march  to  the  front  by 
a  particular  direction,  or  to  the  rear  by  a  speci- 
fied time.  That  the  assignment  was  made  at 
the  request  of  the  officer  can  make  no  difference. 
The  pay  is  regulated  by  the  position,  and  not 
by  the  manner  or  influence  by  which  the  po- 
sition is  acquired.  (U.  S.  v.  Williamson,  23 
Wall.,  411,  415.) 

An  officer  of  the  Ai-my  ordered  fi'om  a  military 
post  at  which  he  is  doing  duty  to  his  home,  to 
await  orders,  even  at  his  own  request,  is  entitled 
to  mileage  for  travel  by  him  in  pursuance  of  his 
orders.  The  status  of  the  officer  wliile  awaiting 
orders  is  different  from  that  of  an  officer  absent 
from  duty  with  leave.  The  officer  in  this  case 
was  not  absent  on  leave  but  was  awaiting  orders 
at  his  home.  It  results  that  in  thus  proceeding 
to  his  home  he  was  traveling  under  orders. 
The  fact  that  he  changed  his  residence  while 
awaiting  orders  is  unimportant.  Whether  he 
resided  in  New  York  or  New  Jersey  could  make 
no  difference  in  his  position  in  the  Army  or  his 
liability  or  readiness  to  respond  to  any  orders 


824 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1556. 


given  to  him.  It  was,  indeed,  important  that 
he  should  keep  the  depai'tment  advised  of  Ms 
residence,  that  he  could  be  called  upon  when 
it  was  desii-ed.  This  he  did.  (U.  S.  v.  Phis- 
terer,  94  U.  S.,  219,  approving  U.  S.  v.  William- 
son, 23  Wall.,  411.) 

The  theory  of  leave  or  waiting  orders  pay  is 
that  an  officer  while  at  home  on  leave  or  waiting 
orders  is  at  less  expense  than  when  at  sea  or  on 
shore  duty.     (Selfridge  v.  U.  S.,  28  Ct.  Cls.,  40.) 

Where  a  naval  constructor,  entitled  to  pay 
imder  section  1556,  Revised  Statutes,  be- 
came sick  while  on  duty  and  was  placed  in  a 
naval  hospital,  and  upon  his  discharge  from 
the  hospital,  upon  the  recommendation  of  a 
board  of  medical  survey,  was  granted  sick  leave 
for  two  months,  held,  that  during  the  time  he  is 
absent  from  his  station  on  such  sick  leave  doing 
no  duty  whatever,  although  not  formally  de- 
tached fi'om  duty  by  express  order,  he  was  in 
fact  detached  and  was  entitled  to  leave  pay 
only.     (Williams  v.  U.  S.,  47  Ct.  Cls.,  56.) 

Awaiting  trial.— While  under  arrest  and  sus- 
pended from  duty  awaiting  trial  by  court- 
martial,  an  officer  is  in  the  status  of  "waiting 
orders"  a.nd  is  entitled  to  pay  and  allowances; 
forfeiture  of  pay  and  allowances  can  only  be 
imposed  by  the  sentence  of  a  lawful  court- 
martial.  (Walsh  V.  U.  S.,  43  Ct.  Cls.,  225,  citing 
Smith  V.  U.  S.,  2  Ct.  Cls.,  206;  Winters  v.  U.  S., 
3  Ct.  Cls.,  136;  Collins  v.  U.  S.,  15  Ct.  Cls.,  22; 
Sullivan  v.  U.  S.,  32  Ct.  Cls.,  4^2;  4  Comp. 
Dec,  605;  6  Comp.  Dec,  970.) 

Where  an  officer  is  awaiting  trial  before  either 
a  civil  or  military  tribunal  under  waiting 
orders  issued  by  authority  of  the  War  Depart- 
ment he  is  entitled  to  the  emoluments  of  his 
office,  including  commutation  of  quarters. 
(Carrington  v.  U.  S.,  46  Ct.  Cls.,  279,  overruling 
11  Comp. Dec,  755,  which  held  that  the  officer 
in  such  case  was  in  the  status  of '  'absent  without 
leave,"  and  not  entitled  to  pay  while  on  bail 
pending  an  appeal  to  a  higher  civil  court.) 

Serving  sentence. — A  person  in  the  military 
service  is  not  entitled  to  pay  while  serving 
sentence  of  imprisonment  imposed  by  a  civil 
court,  even  though  during  the  term  of  imprison- 
ment he  was  in  the  custody  of  the  commanding 
officer  of  a  military  station  as  a  prisoner  of  the 
civil  authorities.  (Comp.  Dec,  Dec  20,  1910, 
118  S.  and  A.  Memo.,  1642.) 

An  officer  suspended  from  rank  and  duty 
piusuant  to  sentence  of  court-martial  is  not 
entitled  to  emoluments  or  allowances.  (Swaim 
v.V.  S.,  165  U.  S.,  553.) 

Absence  tvithout  leave. — A  commissioned  of- 
ficer of  the  Navy  granted  a  leave  of  absence  for 
a  specified  period,  who  does  not  report  his  ad- 
dress on  date  of  termination  of  such  leave,  is 
absent  without  leave  from  such  date  and  is  not 
entitled  to  any  pay  for  the  period  of  such 
unauthorized  absence,  unless  excused  as  un- 
avoidable. (Comp.  Dec,  July  25,  1910,  113  S. 
and  A.  Memo.,  1521.  See  also  note  to  sec. 
1569,  R.  S.) 

Furlough. — Pay  of  officers  while  on  fmlough 
under  section  1442,  Revised  Statutes,  is  fixed 
by  section  1557,  Revised  Statutes.  (See  notes 
to  those  sections.) 

Absence  due  to  misconduct. — "Hereafter  no 
officer  or  enlisted  man  in  the  Navy  or  Marine 
Corps  in  active  service  who  shall  ha  absent 


from  duty  on  account  of  injury,  sickness,  or 
disease  resulting  from  his  own  intemperate  use 
of  drugs  or  alcoholic  liquors,  or  other  miscon- 
duct, shall  receive  pay  for  the  period  of  such 
absence,  the  time  so  absent  and  the  cause 
thereof  to  be  ascertained  under  such  procedure 
and  regulations  as  may  be  prescribed  by  the 
Secretary  of  the  Navy:  Provided,  That  an  en- 
listment shall  not  be  regarded  as  complete 
until  the  enlisted  man  shall  have  made  good 
any  time  in  excess  of  one  day  lost  on  account  of 
injury,  sickness,  or  disease  resulting  from  his 
own  intemperate  use  of  drugs  or  alcoholic  liq- 
uors, or  other  misconduct."  (Act  Aug.  29, 
1916,  39  Stat.,  580,  as  amended  by  act  July  1, 
1918,  40  Stat.,  717.) 

41 .  Deductions  for  naval  hospital  fund. — 
"The  Secretary  of  the  Navy  shall  deduct  from 
the  pay  of  each  officer,  seaman,  and  marine,  in 
the  Navy,  at  the  rate  of  twenty  cents  per 
month  for  each  person,  to  be  apphed  to  the 
fund  for  Navy  hospitals."  (Sec.  4808,  R.  S.; 
see  also  sec.  1614,  R.  S.) 

42.  Stoppage  of  pay,  service  with  con- 
tractors.— "That  hereafter  no  payment  shall 
be  made  from  appropriations  made  by  Congress 
to  any  officer  in  the  Navy  or  Marine  Corps  on  the 
active  or  retired  list  while  such  officer  is  em- 
ployed, after  June  thirtieth,  eighteen  hundred 
and  ninety-seven,  by  any  person  or  company 
furnishing  naval  supplies  or  war  material  to  the 
Government;  and  such  employment  is  hereby 
made  unlawful  after  said  date."  (Act  June  10, 
1896,  29  Stat.,  361.) 

43.  Waiver  of  pay. — Public  poKcy  pro- 
hibits any  attempt  by  unauthorized  agreement 
with  an  officer  of  the  United  States,  under  the 
guise  of  a  condition  or  otherwise,  to  deprive 
him  of  the  right  to  pay  given  by  statute.  (U.  S. 
V.  Andrews,  240  U.  S.,  90,  approving  Glavey  v, 
U.  S.,  182  U.  S.,  595;  see  also  Katzer  v.  U.  S., 
52  Ct.  Cls.,  32,  and  Kozlowski  t;.  U.  S.,  54  Gt. 
Cls.,  206.) 

44.  Allotments  of  pay. — See  section  1430, 
Revised  Statutes,  and  note  thereto. 

The  Secretary  of  the  Navy  has  no  power  to 
increase  a  naval  officer's  allotment  without  his 
consent;  where  he  attempts  to  do  so,  the  officer 
may  recover  the  illegal  excess  paid  under  the 
allotment,  without  his  knowledge  or  consent. 
(Melville  -?;.  U.  S.,  23  Ct.  Cls.,  ll) 

Section  3477,  Revised  Statutes,  prohibits  as- 
signment of  any  claim  against  the  UnitedStates. 
The  naval  appropriation  act  of  June  10,  1896 
(29  Stat.,  361),  authorizes  the  Secretary  of  the 
Navy  to  permit  "officers"  of  the  Navy  and 
Marine  Corps  to  make  allotments  under  certain 
conditions.  Under  this  authority  the  Secre- 
tary issued  a  regulation  (art.  1094,  Navy  Regs., 
1909)  authorizing  allotments  to  be  made,  under 
certain  conditions,  by  "each  person  in  the 
Navy  and  Marine  Corps."  (Assignment  of 
wages  by  enlisted  men  of  the  Navy  was  author- 
ized by  sec.  1576,  R.  S.)    (17  Comp.  Dec,  666.) 

The  act  of  June  10,  1896,  is  a  beneficial  one 
and  provides  with  little  expenseto  the  Gov- 
ernment for  a  worthy  object;  it  is  not,  there- 
fore, an  act  that  calls  for  a  technical  construc- 
tion. Paymasters'  clerks  in  the  Navy  were 
recognized  as  entitled  to  make  allotments  of 
their  pay  under  said  act.  Held,  that  clerks  to 
assistant  paymasters  of  the  Marine  Corps,  in 


825 


Sec.  1557. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


1911,  were  likewise  entitled  to  make  such 
allotments  under  said  act  of  1896  relating  to 
officers.     (17  Comp.  Dec,  666.) 

45.  Reduction  of  pay. — It  is  not  in  the 
power  of  the  executive  department,  or  any 
branch  of  it,  to  reduce  the  pay  of  an  officer  of 
the  Army.  The  regulation  of  the  comj)ensa- 
tion  of  the  officere  of  the  Army  belongs  to  the 
legislative  department  of  the  Government. 
(U.  S.  V.  Williamson,  23  Wall.,  411,  416;  see  also 
cases  cited  above,  under  "43.  Waiver  of  pay.") 

Reduction  by  the  President  of  the  sentence 
of  an  officer  of  the  Navy  from  dismissal  from 
the  ser^-ice  to  reduction  to  one-half  sea  pay  for 
five  years  is  a  mitigation  of  the  sentence  Avithin 
the  meaning  of  article  54,  section  1624,  Revised 
Statutes.  The  officer  whose  pay  has  been  so 
reduced  is  not  entitled  to  recover  from  the 
United  States  the  difference  between  one-half 
sea  pay  and  waiting-orders  pay  for  the  period 
covered  by  the  sentence.  (Mullan  v.  U.  S., 
212  U.  S.,  516.) 

The  report  and  recommendation  of  a  naval 
board,  although  approved  by  the  Secretary  of 
the  Navy,  did  not  work  a  forfeiture  of  the  pay 
of  the  disbui'sing  officer  involved,  as  the  board 
only  recommended  that  he  be  held  responsible 
and  that  the  amount  of  the  loss  be  deducted 
from  any  money  that  might  be  due  him.  Such 
declaration  of  the  investigating  board  might 
have  been  made  the  basis  of  a  com't-martial, 
but  it  is  well  settled  that  the  pay  due  to  an 
officer  can  only  be  forfeited  by  the  sentence  of  a 
court-martial.*  (Worz  v.  U.  S.,  48  Ct.  Cls.,  80, 
93.) 

It  was  competent  for  the  proper  marine 
superiors  and  the  accounting  officers  of  the 
Treasury  to  withhold  payment  of  the  money 
due  to  an  officer  until  he,  or  his  representative 
after  his  death,  shall  establish  that  the  money 
committed  to  his  care  was  not  lost  by  or  through 
his  fault  or  negligence.  (Worz  v.  U.  S.,  48  Ct. 
Cls.,  80,  93.) 

46.  Termination  of  pay. — Where  a  con- 
tract officer  (civilian  captain  of  a  naval  collier) 
abandoned  his  place  of  service  without  orders, 
it  is  conclusive  that  such  contract  officer  con- 
sidered his  contract  with  the  Government  at  an 
end,  and  he  is  entitled  to  no  further  remunera- 
tion from  the  Government.  (Gove  v.  U.  S., 
49  Ct.  Cls.,  251.) 

An  appointed  officer  (paymaster's  clerk)  or- 
dered, while  abroad,  to  proceed  to  his  home  in 


the  United  Statea,  and  that  upon  his  arrival 
home  his  appointment  "is  revoked,"  was  en- 
titled to  compensation  untU  he  arrived  at  his 
home.  (Calongne  v.  U.  S.,  49  Ct.  Cls.,  240, 
citing  Davis  v.  U.  S.,  47  Ct.  Cls.,  195;  see  also 
Katzer  v.  U.  S.,  49  Ct.  Cls.,  294.) 

An  officer  dismissed  in  time  of  peace  with- 
out sentence  of  comt-martial  can  not  recover 
pay  thereafter  if  he  acqmesces  in  the  unlawful 
dismissal  for  such  a  long  period  that  he  may  be 
held  to  have  abandoned  his  office.  (Ide  v.  U. 
S.,  25  Ct.  Cls.,  401;  29  Ct.  Cls..  558;  Newton  v. 
U.  S.,18Ct.  Cls.,435.) 

The  discharge  of  an  officer  does  not  take 
effect,  80  as  to  relieve  the  Government  from  its 
obligations,  until  he  is  notified  of  the  fact  and 
actually  discharged  from  the  service.  (Gould 
V.  U.  S.,  19  Ct.  Cls.,  593.) 

An  officer  who  continues  in  the  performance 
of  his  duty  after  tendering  his  resignation  ia 
entitled  to  pay  up  to  the  time  that  he  is  notified 
of  the  acceptance  of  his  resignation.  (Barger  v. 
U.  S.,  6Ct.  Cls.,  35.) 

47.  Pay  computed  on  monthly  basis. — 
Annual  compensation  of  any  person  in  the 
service  of  the  United  States  shall  be  divided 
into  12  equal  installments,  one  of  which  shall 
be  the  pay  for  each  calendar  month;  one- 
thirtieth  of  one  installment  shall  be  the  daily 
rate  of  pay,  in  making  payments  for  a  fractional 
part  of  a  month;  the  31st  of  any  calendar  month 
shall  be  excluded  from  computation,  and  Feb- 
ruary shall  be  treated  as  having  30  days.  Per- 
sons entering  the  service  in  a  31-day  month 
shall  be  entitled  to  pay  from  date  of  entry  to 
the  30th  of  said  month,  and  persons  entering  in 
February  shall  be  entitled  to  one  month's  pay 
less  as  many  thirtieths  as  days  elapsed  prior  to 
entry.  For  unauthorized  absence  on  the  31st 
of  any  month,  one  day's  pay  shall  be  forfeited. 
(Aet  June  30,  1906,  sec.  6,  34  Stat.,  763.) 

The  Re\dsed  Statutes,  section  1556,  provided 
that  the  officers  and  men  of  the  Navy  "shall  be 
entitled  to  receive  annual  pay  at  the  rates 
herein  stated  " ;  but  the  officers  of  the  Army  and 
Navy  have  never  been  paid  annually,  and  in 
the  case  of  death,  resignation,  or  dismissal,  pay 
runs  to  the  date  when  the  officer  leaves  the 
service;  therefore,  the  statute  of  limitations  ex- 
cludes pay  anterior  to  a  period  of  six  years 
prior  to  the  bringing  of  suit  therefor.  (Brook 
V.  U.  S.,  31  Ct.  Cls.,''272.) 


Sec.  1557.  [Furlough  pay.]  Officers  on  furlough  shall  receive  only  one- 
half  of  the  pay  to  which  they  would  have  been  entitled  if  on  leave  of  absence. — 
(3  Mar.,  1835,  c.  27,  s.  1,  v.  4,  p.  756.  3  Mar.,  1845,  c.  77,  s.  6,  v.  5,  p.  794.  1 
June,  1860,  c.  67,  s.  4,  v.  12,  p.  27.) 

Navy"  considerably  below  that  required  for 
the  pay  of  officers  on  active  duty,  this  action 
being  based  upon  the  express  grounds  "that  by 
a  very  rigid  enforcement  of  a  somewhat  disused 
power  on  the  part  of  the  Secretary  of  the  Navy 
to  furlough  officers,  instead  of  having  them 
under  the  heads  of  'other  duty'  or  'waiting 
orders,'  a  very  considerable  reduction  could  be 
made,"  and  that  they  therefore  "give  the 
Secretary  of  the  Navy  the  disagreeable  duty  of 
putting  officers  upon  furlough,  when  they  can 


As  to  leave  of  absence  pay,  see  note  to  section 
1556,  Revised  Statutes,  imder  "Absence 
from  duty." 

This  section  has  not  been  repealed  by 
subsequent  enactments.  (15  Comp.  Dec,  73. 
See  also  notes  to  sections  1454,  1593,  and  1594, 
Revased  Statutes.) 

Officers  furloughed  as  measure  of 
economy. — In  the  a])propriations  for  the  naval 
service  for  the  fiscal  year  ending  June  30,  1877, 
Congress  reduced  the  amount  for  "Pay  of  the 


826 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1558. 


be  spared  from  the  actual  needs  of  the  service." 
Under  these  circumstances,  the  Secretary  of 
the  Navy  felt  bound  to  reduce  the  number  of 
officers  employed  to  that  absolutely  needed  to 
meet  the  requirements  of  the  ser\'ice,  and  to 
put  those  unemploved  upon  furlough  pay. 
(Navy  Dept.  Gen.  Order  No.  216,  Aug.  12,  1876, 
citing  Cong.  Rec,  June  30,  1876,  p.  16.) 

The  Secretary  of  the  Navy  found  it  a  dis- 
agreeable duty  to  be  obliged  to  put  so  many 
well-deserving  officers  in  a  position  which  had 
been  reserved  of  late  years  solely  for  the  useless 


and  undeserving,  but  had  no  other  alternative 
except  that  of  refusing  to  carry  out  the  ex- 
pressed will  of  the  representatives  of  the  people. 
In  placing  these  officers  on  furlough,  the  Secre- 
tary stated  that  it  would  be  understood  that  his 
action  "neither  imputes  any  -wTong  to,  nor  in- 
volves the  disgrace  of,  any  such  officer;  but 
that  it  is  simply  an  effort  to  meet,  as  nearly  as 
may  be,  the  reciuirements  of  public  law,  bind- 
ing alike  upon  the  department  and  the  service." 
(Navy  Dept.  Gen.  Order  No.  216,  Aug.  12, 
1876.) 


Sec.  1558.  [Allowances.]  The  pay  prescribed  in  the  two  preceding  sections 
shall  be  the  full  and  entire  compensation  of  the  several  officers  therein  named, 
and  no  additional  allowance  shall  be  made  in  favor  of  any  of  said  officers  on 
any  account  whatever,  except  as  hereinafter  provided. —  (15  July,  1870,  c.  295, 
s.  4,  V.  16,  p.  332.) 


Allowances  for  officers  of  the  Army,  except 
forage,  are  made  applicable  to  all  com- 
missioned officers  of  the  Navy  by  act  of 
March  3,  1899,  section  13  (30  Stat.,  1007),  as 
amended  by  acts  of  May  13,  1908  (31  Stat., 
128),  and  August  29,  1916  (39  Stat.,  581), 
noted  under  section  1487,  Revised  Statutes. 
Chief  of  Naval  Operations  shall  receive  the  al- 
lowances prescribed  by  or  in  pursuance  of 
law  for  the  gi-ade  of  general  in  the  Army. 
(Act  July  1,  1918,  40  Stat.,  716.) 
Chiefs  of  bm-eaus  and  the  Judge  Advocate 
General  of  the  Navy  shall  receive  the  same 
allowances  as  prescribed  by  or  in  pursuance 
of  law  for  chiefs  of  bureaus  of  the  War  De- 
partment and  the  Judge  Advocate  General  of 
the  Army.  (Act  July  1, 1918,  40  Stat.,  717.) 
Officers  of  the  Navy  holding  the  rank  and  title 
of  Admiral  and  Vice  Admiral  in  the  Navy, 
while  holding  such  rank  and  title,  shall 
receive  the  allowances  of  a  General  and 
Lieutenant  General  of  the  Army,  respec- 
tively. (Act  July  1,  1918,  40  Stat.,  717.) 
See  note  to  section  1556,  Revised  Statutes,  as  to 
pay  and  allowances  of  warrant  officers, 
commissioned  warrant  officers,  Naval  Re- 
serve Force,  Nurse  Corps  (Female),  etc. 
See  note  to  section  1487,  Revised  Statutes,  as  to 
quarters,  heat,  and  light,  and  as  to  allow- 
ances in  general. 
See  notes  to  sections  1578  and  1579,  Revised 

Statutes,  as  to  rations  of  officers. 
Transportation  of  household  effects:  See  act  of 

May  18,  1920,  section  12  (41  Stat.,  604). 
Warrant  officers  and  mates  "shall  hereafter  re- 
ceive the  same  commutation  for  quarters  as 
second  lieutenants  of  the  Marine  Corps  "  (act 
Mar.  3,  1901,  31  Stat.,  1107);  and  "shall re- 
ceive the  same  allowances  of  heat  and  light 
as  are  now  or  may  hereafter  be  allowed  an 
ensign.  United  States  Navy."     (Act  Aug. 
29,  1916,  39  Stat.,  578.)     As  to  rations  of 
warrant  officers  and  mates,  see  notes  to 
sections  1578  and  1579,  Revised  Statutes. 
Historical  note. — By  act  of  March  3,  1835 
(4  Stat.,  757),  it  was  provided  that  "the  yearly 
allowance  provided  in  this  act  is  all  the  pay, 
compensation,  and  allowance  which  shall  be 
received  under  any   circiunstances  whatever 
by  any  such  officer,"  etc.     Before  said  act  it 
was  lawful  for  the  Secretary  of  the  Navy  to 


make  allowances  out  of  appropriations  in  gross 
to  officers  of  the  Navy,  beyond  their  regular 
pay,  for  quarters,  furnitm-e,  light,  fuel,  and  so 
forth.  By  act  of  April  17,  1866  (14  Stat.,  33), 
said  act  of  March  3,  1835,  was  repealed.  The 
effect  of  said  repeal  was  to  restore  the  right  to 
make  such  allowances,  as  the  act  of  February 
25,  1871,  now  embodied  in  section  12  of  the  Re- 
vised Statutes,  was  not  then  in  force.  (U.  S.  v. 
Philbrick,  120  U.  S.,  52.) 

Provision  as  to  allowances  which  are  fixed  for 
naval  officers  in  the  naval  personnel  act  of 
March  3,  1899,  section  13  (30  Stat.,  100/),  noted 
above,  superseded  the  statutory  pro\asions  as  to 
the  same  allowances  which  were  contained  in 
earUer  statutes.  (Gibson  v.  U.  S.,  194  U.  S., 
182.) 

The  pro\-iso  in  the  naval  personnel  act  de- 
claring that  "no  provision  of  this  act  shall 
operate  to  reduce  the  present  pay  of  any  com- 
missioned officer,"  and  the  act  of  June  7,  1900 
(31  Stat.,  684,  697),  that  nothing  contained  in 
the  personnel  act  shall  operate  to  reduce  the 
pay  which,  but  for  the  passage  of  said  act, 
would  have  been  received  by  any  commis- 
sioned officer  at  its  passage  or  thereafter,  do  not 
extend  to  allowances.  "(Thomas  v.  U.  S.,  38 
Ct.  Cls.,  113.) 

Allowances  provided  by  law  for  officers  of  the 
Army  are  applicable  to  officers  of  the  Navy  by 
reason  of  section  13  of  the  Navy  personnel  act 
approved  March  3, 1899  (30  Stat.,  1007),  and  the 
acts  of  May  13,  1908  (35  Stat.,  127,  128),  and 
August  29,  1916  (39  Stat.,  581).  (24  Comp. 
Dec,  610,  citing  15  Comp.  Dec,  809;  66  MS. 
Comp.  Dec,  663,  Aug.  14,  1913;  27  Op.  Atty. 
Gen.,  261;  Op.  J.  A.  G.  Navy,  Apr.  13,  1918.) 

Allowances,  pay,  emoluments,  etc., 
defined  and  distinguished.— See  note  to  sec- 
tion 1556,  Revised  Statutes,  under  "longe\-ity 
pay,"  for  definition  of  current  yearly  pay  and 
yearly  pay  of  the  grade;  and  note  to  section 
1487,  Revised  Statutes. 

Under  the  term  "allowances"  everything  is 
embraced  which  would  be  recovered  from  the 
Government  by  the  soldier  in  consideration  of 
his  enlistment  and  services,  except  the  stipu- 
lated monthlv  compensation  designated  as  pay. 
Therefore,  the  term  allowances  includes  the 
bountv  allowed  to  a  soldier  upon  his  honorable 
discharge  at  the  expiration  of  his  service.     (U. 


54641°— 22- 


53 


827 


Sec.  1558. 


Ft.  2.  REVISED  STATUTES. 


The  Navy. 


S.  V.  Landers,  92  U.  S.,  77,  80,  citing  13  Op. 
Atty.  Gen.,  198,  199.) 

"Mounted  pay"   is  not  an  allowance,   but 

Eay  proper;  the  olKcer  to  whom  it  is  assigned 
y  statue  receives  it,  whether  he  is  actually 
mounted  or  not;  where  a  surgeon  in  the  Army 
is  entitled  to  it,  a  surgeon  in  the  Navy  re- 
ceiving Army  pay  and  allowances  under 
the  Navy  personnel  act  of  March  3,  1899, 
is  also  entitled  to  it.  (Richardson  v.  U.  S., 
38   Ct.    01s.,    182.) 

By  reference  to  the  statutes  it  appears 
that  the  words  "pay  and  allowances"  may 
be  understood  in  a  general  sense  as  including 
all  emoluments  paid  or  allowed  to  a  soldier. 
(13    Op.    Atty.    Gen.,    199.) 

A  general  order  of  the  Navy  Department 
allowing  officers,  in  lieu  of  all  allowances, 
except  niileage  or  traveling  expenses,  a  sum 
equal  to  33 J  per  cent  of  their  "pay,"  is  to  be 
construed  as  requiring  that  said  percentage 
be  based  upon  the  amount  of  the  officer's 
stated  statutory  pay  at  the  time  said  order 
was  in  force,  \\'ithout  taking  into  considera- 
tion the  additional  amount  allowed  the  officer 
as  lonsjcn-itv  pay  under  the  act  of  March  3, 
1883  (22  Stat.,  473).  (U.  S.  v.  Allen,  123 
U.  S.,  345.) 

Under  a  statute  providing  that  officers  serv- 
ing as  chiefs  of  bureaus  shall  have  certain 
"rank,  title,  and  emoluments,"  the  word 
"emoluments"  includes  salary,  pay,  and 
every  kind  of  pecuniary  compensation  for 
service  rendered.  (28  Op.  Atty.  Gen.,  429, 
citing  Hoyt  v.  U.  S.,  10  How.,  108,  135.) 

The  basis  of  increased  pay  for  shore  duty 
beyond  seas  is  the  officer's  "pay  proper  as 
fixed  by  law  in  time  of  peace."  The  term 
"pay  proper"  is  not  to  be  construed  differently 
from  the  term  "pay,"  which  includes  the 
increase  granted  for  longevity  service.  The 
total  amount  is  the  "pay  proper"  upon  which 
the  percentage  is  to  be  computed.  (McCuUy 
V.    U.    S.,   42   Ct.    Cls.,   275.) 

Under  the  act  of  May  2G,  1900,  increasing 
the  pay  of  officers  10  per  cent  and  of  enlisted 
men  20  per  cent  "above  the  rates  of  pay  proper 
as  fixed  by  law  in  times  of  peace"  (for  shore 
duty  beyond  seas),  "pay  proper"  means  the 
fixed  amount  given  by  law  to  officers  as  dis- 
tinguished from  pay  and  emoluments  or  pay 
and  allowances.  The  increase  of  an  officer's 
pav  is  to  be  computed  on  his  longevity  pay, 
if  any.     {IrwAn  v.  U.  S.,  38  Ct.  Cls.,  87.) 

The  words  "pav  proper"  as  used  in  the 
acts  of  May  26,  1900  (31  Stat.,  205,  211),  and 
March  2,  1901  (31  Stat.,  895,  903),  allowing 
additional  pay  to  officers  and  enlisted  men 
of  the  Army  servdng  beyond  the  limits  of  the 
States  comprising  the  Union  and  the  terri- 
tories contiguous  thereto,  include  increase 
for  longe\aty  pay.  The  total  of  the  minimum 
pay  of  the  office  prescribed  by  statute  and 
the  increased  pay  for  length  of  service  should 
be  taken  as  the  basis  of  the  computation  for 
the  increase  under  the  acts  cited.  (U.  S. 
V.   Mills,    197   U.   S.,   223.) 

"Pay  proper"  means  the  regular,  ordinary 
pay  which  an  officer  may  be  entitled  to  under 
the  facts  in  his  case,  and  if  by  \drtue  of  length 
of  ser\-ice  he  is  entitled  to  receive  the  addi- 
tional  compensation   provided   therefor,    that 


compensation  is  his  "pay"  or  his  "pay  proper" 
as  distinguished  from  possible  other  compensa- 
tion by  way  of  allowances,  or  commutation,  or 
otherwise.     (U.  S.  v.  Mills,  197  U.  S.,  223.) 

The  words  "pay  proper"  are  not  to  be  con- 
strued differently  from  the  word  "pay."  The 
term  means  compensation  which  may  properly 
be  described  or  designated  as  "pay'  as  distin- 
guished from  allowances,  commutation  for 
rations,  or  other  methods  of  compensation 
not  specifically  described  as  pay.  (U.  S. 
V.   Mills,   197   U.    S.,   223.) 

The  words  "all  back  pay  and  emoluments," 
in  a  special  act  of  Congress  (granting  the 
compensation  to  which  an  officer  wf)uld  have 
been  entitled  had  he  remained  in  the  Army 
for  a  period  that  he  was  out  after  an  enforced 
resignation  until  his  reinstatement),  are  all 
comprehensive;  they  embrace  all  the  com- 
pensation, perquisites,  and  dues  to  which 
the  beneficiary  was  entitled  as  an  officer. 
The  word  "all"  excludes  the  idea  of  limita- 
tion, and  the  word  "emoluments"  is  the 
most  adequate  that  could  have  been  used. 
It  especially  expresses  the  perquisites  of  an 
office,  and  its  use  in  connection  with  the 
word  "pay"  makes  the  restitution  of  the 
statute  complete.  (McLean  v.  U.  S.,  226 
U.  S.,  374.) 

The  word  "pay"  does  not  include  allow- 
ances.    (Thomas  v.  U.   S.,  38  Ct.   Cls.,   113.) 

Wliere  an  officer  is  sentenced  by  court- 
martial  to  suspension  from  rank  and  duty  for 
12  years,  and  to  forefeit  one-half  his  monthly 
pay  every  month  for  the  same  period,  he  is 
not  entitled  to  recover  allowances.  (Swaim 
V.  U.  S.,  28  Ct.  Cls.,  173,  237;  affirmed,  165 
U.    S.,   553.) 

The  word  "pay"  in  the  laws  providing  for 
the  pay  and  allowances  of  officers  and  en- 
listed men  of  the  Army  has  a  distinct  and 
technical  signification,  and  when  used  alone 
in  the  sentence  of  a  court-martial  does  not 
affect  the  right  to  of  the  accused  to  his  pecuni- 
ary   allowances.     (2    Comp.    Dec,    300.) 

A  midshipman  suspended  from  the  Naval 
Academy  for  one  year  "^\'ithout  pay"  is  not 
entitled  to  allowances  during  the  period  of 
his  suspension.  (Comp.  Dec,  Nov.  13,  1915, 
177  S.  and  A.  Memo.,  3830,  citing  17  Comp. 
Dec,  834;  11  Comp.  Dec,  560;  13  Comp.  Dec, 
626.) 

See  also  United  States  v.  Jones  (18  How.,  92), 
noted  under  section  1586,  Revised  Statutes. 

Maintenances,  attaches. — The  money  ap- 
propriated by  Congress  for  ''maintenance  of 
students  and  attaches  and  information  from 
abroad"  is  in  the  nature  of  a  contingent  fund, 
to  be  disbursed  by  the  Secretary  of  the  Navy  in 
his  discretion.  The  only  question  that  can 
arise  is  how  much  did  the  Secretary  intend  to 
allow  to  an  officer.  Neither  can  the  form  of 
the  Secretary's  allowance  be  a  matter  of  judi- 
cial review,  nor  the  time  when  the  mainte- 
nance was  to  begin.  Accordingly,  held,  that 
where  a  naval  officer  was  ordered  by  the  Secre- 
tary of  the  Navy  to  report  for  duty  to  our  minis- 
ter to  Spain,  and  to  accompany  him  to  Madrid, 
and  it  was  further  ordered  by  the  Secretary 
that  the  officer  be  allowed  $285  per  month  for 
"maintenance,  "  to  begin  at  the  time  he  reports 
for  duty,  and  that  such  allowance  be  "addi- 


828 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1560. 


tional  to  the  ordinary  traveling  and  other  ex- 
penses that  may  be  allowed, "  the  accounting 
officers  Avere  in  error  in  refusing  to  allow  the 
maintenance  prior  to  the  time  said  officer 
arrived  in  Madrid.  (Dyer  v.  U.  S.,  37  Ct.  Cls., 
337,  citing  U.  S.  v.  Jones,  18  How.,  92,  noted 
under  section  1586,  R.  S.;  see  also  note  to  sec. 
285,  R.  S.) 

Medical  expenses  of  ofl&cers. — See  note  to 
section  1586,  Revised  Statutes. 

Servants. — The  Navy  Regulations  which 
allow  the  detail  of  enlisted  men  to  prepare  and 
serve  food  for  officers'  messes  extend  only  to 
messes  on  board  ship;  officers'  messes  on  shore 
are  A-oluntary,  and  there  is  no  law  or  regulation 
which  recognizes  them.  Where  enlisted  men 
on  shipboard  were  detailed  to  serve  an  officer's 
mess  on  shore,  and  were  subsisted  by  the  mess, 
and  their  rations  were  commuted  and  paid  to 
the  mess,  the  accounting  officers  could  dis- 
allow the  payment  and  compel  the  officers  to 
refund  the  monev.  (Williams  v.  U.  S.,  44  Ct. 
Cls.,  175.) 

The  act  of  July  1,  1902  (32  Stat.,  662,  680), 
authorizing  the  payment  of  money  accruing 
from  the  rations  of  enlisted  men  "commuted 
for  the  benefit  of  any  mess,  "  does  not  extend  to 
an  officer's  mess  on  shore.  (Williams  v.  U.  S., 
44  Ct.  Cls.,  175.) 

Section  1232,  Revised  Statutes,  pro\'iding 
that  ' '  no  officer  shall  use  an  enlisted  man  as  a 
servant  in  any  case  whatever, "  which  related 
to  officers  of  the  Army,  is  ecjually  applicable 
to  officers  of  the  Navy,  at  least  on  shore;  the 
Navy  Regulations  respecting  enlisted  men  in 
the  Marine  Corps  are  equally  as  explicit,  so 
that,  whatever  authority  there  may  be  for  the 
enlistment  of  messmen  of  the  servant  class  on 
board  ship  can  ha\-e  no  application  to  a  private 
mess  formed  by  officers  on  shore.  (Williams  v. 
U.  S.,  44  Ct.  Cls.,  175.) 

See  also  12  Comp.  Dec,  697,  noted  under 
section  1487,  Re\'ised  Statutes,  "Services  of 
laborer  in  caring  for  quarters,  "  and  see  6  Comp. 
Dec,  756. 


defined    and    distin- 
to  section  1556,   Re- 

to  persons  in  the 


Mileage,  traveling  expenses,  and  trans- 
portation of  dependents. — See  note  to  sec- 
tion 1566,  Revised  Statutes. 

Allow^ances    of    ofl&cer    under    suspen- 
sion.— See  note  above,    under    "Allowances, 
pay,    emolmnents,    etc., 
guished";  see  also  note 
\'ised  Statutes. 

Sale  of  stores,  etc. 
Navy. — Sale  of  naval  stores  to  persons  in  the 
Navy  and  Marine  Corps,  and  civilian  em- 
ployees at  certain  naval  stations  is  authorized 
bv  act  of  March  3,  1909  (35  Stat.,  768),  act  of 
June  24,  1910  (36  Stat.,  619),  and  act  of  March 
4,  1913  (37  Stat.,  909).  Sale  of  Navy  and  Ma- 
rine Corps  subsistence  stores  to  officers  and  en- 
listed men  of  the  Army  is  authorized  by  act  of 
August  29,  1916  (39  Stat.,  630),  which  also 
authorizes  officers  and  enlisted  men  of  the  Navy 
and  Marine  Corps  to  purchase  subsistence  sup- 
plies from  the  Army.  (See  also  sec.  1135,  R.  S., 
and  note  thereto.) 

The  Secretary  of  the  Navy  is  not  authorized, 
in  the  absence  of  a  provision  of  law  therefor,  to 
purchase  for  sale  to  officers  and  enlisted  men  of 
the  Navy  articles  not  included  in  the  regular 
naval  stores.  (6  Comp.  Dec,  321;  see  also  note 
to  sec.  1414,  R.  S.) 

Uniforms,  accoutrements,  and  equipment 
shall  be  sold  at  cost  to  officers  of  the  Navy, 
Marine  Corps,  midshipmen,  cadets  at  the  Coast 
Guard  Academy,  and  officers  of  the  Coast  Guard 
while  operating  ^vith  the  Navy,  subject  to  such 
restrictions  and  regulations  as  the  Secretary  of 
the  Navv  mav  prescribe.  (Act  Jan.  12,  1919, 
40  Stat.,' 10540 _ 

Honorably  discharged  officers  and  enlisted 
men  of  the  Army,  Navy,  and  Marine  Corps 
recei^^ng  medical  treatment  from  the  Public 
Health  SerA-ice  shall  be  permitted  to  purchase 
subsistenc'e  stores  from  the  Armv,  Navy,  and 
Marine  Corps.  (Act  June  5,  1920,  41  Stat.^ 
976.) 


Sec.  1559.  [Volunteer  service.]  When  a  volunteer  naval  service  is  author- 
ized by  law,  the  officers  therein  shall  be  entitled  to  receive  the  same  pay  as  offi- 
cers of  the  same  grades,  respectively,  in  the  Regular  Navy. —  (16  July,  1862,  c. 
183,  s.  20,  V.  12,  p.  587.) 


Naval  Resei'\'e  Force,  pay  and  allowances:  See 

note  to  section  1556,  Revised  Statutes. 
Pay,  defined:  See  note  to  section  1558,  Revised 

Statutes. 


Transfer  of  officers  from  the  volunteer  8er^'ice  to 
the  Regular  Na\y :  See  note  to  section  1412, 
Revised  Statutes. 


Sec.  1560.  [Commencement  of  pay ;  original  entry.]  The  pay  of  an  officer 
of  the  Navy,  upon  his  original  entry  into  the  service,  except  where  he  is  required 
to  give  an  official  bond,  shall  commence  upon  the  date  of  his  acceptance  of  his 
appointment;  but  where  he  is  required  to  give  such  bond  his  pay  shall  com- 
mence upon  the  date  of  the  approval  of  his  bond  by  the  proper  authority. — 
(15  July,  1870,  c.  295,  s.  7,  v.  16,  p.  333.) 

As  to  commencement  of  pay  in  the  cases  of  to  same  section,  under  "I.  WTio  are  re- 
officers  of  the  Navy  required  to  give  bonds,  quired  to  give  bonds." 
see  note  to  section  1383,  Revised  Statutes,  As  to  pay  of  midshipmen  commissioned  witliin 
under  "II.   Necessitv  of  furnishing  bond  six   months   after   graduation,    see   act   of 
before  entering  upon  duty";  see  also  note  March  3,  1893  (27  Stat.,  715),  which  allows 


829 


Sec.  1561. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


the  pay  of  the  j^jado  in  which  commissioned 
from  the  date  of  rank  stated  in  the  com- 
mission to  the  date  of  qualification  and 
acceptance  of  commission;  and  act  of  May 
22,  1917,  section  5  (10  Stat.,  86),  reenacted 
byact  of  July   1,    1918  (40  Stat.,   716), 
■which  proNides  that  midshipmen  thereafter 
graduating  "may  be  commissioned  effec- 
tive from  date  of  graduation." 
Appointment  of  officer  to  liigher  office 
in  another  branch  of  the  service. — It  has 
been  the  rule  of  the  accounting  officers  to  hold 
that  the  appointment  of  an  officer  in  one  branch 
of  the  service  to   another  office  in  another 
branch  is  an  "original  entry  into  the  service" 
■within  the  meaning  of  section  1560,  Revised 
Statutes.     (Comp.  Dec,  May  31,  1907,  76  S. 
and  A.  Memo.,  372.) 

For  other  cases,  see  note  to  section  1458, 
Revised  Statutes,  under  " Promotion '  and  'ap- 
pointment' compared."  See  also  note  to  sec- 
tion 1556,  Revised  Statutes,  under  "Longevity 
pav,"  citing  United  States  v.  Alger  (151  U.  S., 
362,  152  U.  S.,  384),  United  States  i;.  Stahl  (151 
U.  S.,  366),  Barber  v.  United  States  (50  Ct.  Cls., 
250),  United  States  v.  U.  S.  Fidelity  and 
Guarantv  Co.  (244  Fed.  Rep.,  310),  Stirling  v. 
United  States  (48  Ct.  Cls.,  386),  -which  cases 
hold  that  the  reappointment  of  an  officer, 
whether  under  the  general  law  or  special  act  of 
Congress,  is  not  an  original  entry  into  the  serv- 
ice, for  purposes  of  longevity  pay,  where  the 
officer  had  not  left  the  ser\ice  with  the  bona  fide 
intention  of  not  returning,  but  his  services 
under  the  two  appointments  had  in  effect  been 
continuous.  See  also  notes  to  sections  1561 
and  1562,  Re-vised  Statutes. 

Reappointment  under  special  act  of  Con- 
gress.— A  former  officer  of  the  Navy  reap- 
pointed b}^  authority  of  a  special  act  of  Con- 
gress, pro-viding  that  such  reappointment  shall 
be  made  "as  of"  a  prior  specified  date,  would, 
if  the  actstop])ed  there,  be  entitled  to  back  pay 
from  such  prior  date;  but  where  the  act  con- 
tained a  pro-viso  "that  he  shall  receive  no  pay 
or  emoluments  except  from  the  date  of  such 
reappointment,"  its  effect  was  to  forbid  the 
allowance  of  pay  or  emoluments  prior  to  the 
date  of  such  reappointment,  which  must  be 
regarded  as  the  date  when  such  reappointment 
was  actually  made  under  the  act,  and  not  the 
retroactive  date  as  of  which  such  reappointment 
was  made,  and  which  served  merely  to  fix  his 
rank  and  precedence.  Further  held,  that  this 
legislation,  being  remedial  in  its  character, 
should  be  construed  as  ratifying  payments 
which  had  been  made  to  the  officer  prior  to  the 
passage  of  the  act  and  which  the  Government 
in  a  counterclaim  had  sought  to  recover  back. 
(Quackenbush  v.  U.  S.,  177  U.  S.,  20.) 

See  also  Stirling  v.  United  States  (48  Ct.  Cls., 
386),  noted  under  section  1556,  Revised  Stat- 
utes, "  Longevity  pay." 

Appointment  of  officer  to  higher  office 
in  a  ne-w  corps. — The  act  of  March  3,  1915 
(38  Stat.,  942),  created  in  the  Na-vy  the  grades 


of  acting  pay  clerk,  pay  clerk,  and  chief  pay 
clerk,  and  rendered  eligible  for  commissions  as 
chief  pay  clerks,  paymasters'  clerks  then  in  the 
Navy  and  former  paymasters'  clerks  whose  ap- 
pointments had  been  revoked  prior  to  the  act 
and  who  had  not  less  than  six  years'  actual 
service  as  such.  The  said  act  also  changed  the 
titles  of  paymasters'  clerks  to  "pay  clerk." 
Held,  that  a  pajonaster's  clerk  whose  title  was 
changed  to  pay  clerk  by  the  act,  and  who  was 
commissioned  in  accordance  with,  said  act  as  a 
chief  pay  clerk,  was  not  "advanced  in  grade  or 
rank  pursuant  to  law  "  -nithin  the  meaning  of 
the  act  of  March  4,  1913  (noted  under  sec.  1562, 
R.  S.);  that  the  said  act  of  March  3,  1915, 
created  a  new  corps  in  the  Navy;  and  that  pay- 
masters' clerks  then  in  the  ser-vice,  not-with- 
standing their  change  of  title,  were  not  members 
of  said  new  corps  any  more  than  those  whose 
appointments  had  theretofore  been  revoked; 
that  the  appointment  of  the  officer  in  this  case 
as  a  chief  pay  clerk  was  no  more  an  advance- 
ment in  grade  or  rank  than  the  appointment  of 
a  former  paymaster's  clerk  \xiih  the  requisite 
qualifications  would  have  been  an  advance- 
ment in  grade  or  rank;  that  in  either  case  the 
appointment  would  have  been  that  of  one  out- 
side of  the  newly  created  corps,  and  of  one  who 
had  no  grade  or  rank  as  a  warrant  or  commis- 
sioned officer;  accordingly,  the  officer  in  this 
case,  ha-ving  been  commissioned  as  a  chief  pay 
clerk  on  August  3,  1915,  pursuant  to  the  act  of 
March  3,  1915,  was  not  entitled  to  pay  as  chief 
pay  clerk  from  the  date  of  rank  stated  in  his 
commission,  which  was  July  1,  1915.  (Seifert 
V.  U.  S.,  52  Ct.  Cls.,  40.} 

Promotion  of  enlisted  man. — The  ap- 
pointment of  an  enlisted  man  to  the  position  of 
pharmacist  in  the  Navy  is  not  a  promotion  'in 
course,"  -within  the  meaning  of  section  1561, 
Re-vised  Statutes,  and  the  appointee  is  not  en- 
titled to  the  pay  of  the  higher  grade  from  the 
date  he  is  to  take  rank,  as  pro-vided  therein, 
but  from  the  date  of  his  acceptance  of  the  office. 
(5  Comp.  Dec,  141.) 

An  officer's  original  entry  into  the  ser-vice, 
within  the  meaning  of  section  1560,  Revised 
Statutes,  has  reference  to  his  entry  into  the 
service  as  an  officer  and  not  as  an  enlisted  man, 
and  when  an  officer  is  appointed  from  among 
the  enlisted  men  of  the  Navy  his  pay  as  an 
officer  begins  as  pro-vided  in  said  section. 
(5  Comp.  Dec,  141.) 

Midshipman  commissioned  as  an  offi- 
cer.— The  appointment  of  a  midshipman  to  the 
position  of  assistant  ci^il  engineer  in  the  Navy, 
when  not  made  until  over  six  months  from  the 
date  of  his  graduation,  is  "an  original  entry 
into  the  ser-vice  "  %\ithin  the  meaning  of  section 
1560,  Revised  Statutes,  rather  than  a  "promo- 
tion in  course  to  fill  a  vacancy  in  the  next 
higher  grade,"  -within  the  meaning  of  the  act 
of  June  22,  1874  (noted  under  section  1561, 
R.  S.).  (13  Comp.  Dec,  606;  but  see  act  of 
July  1,  1918,  noted  above.) 


Sec.  1561.  [Commencement  of  pay  of  promoted  officers.     Superseded.] 


This  section  pro-vided  as  follo-ws: 
"Sec.  1561.  When  an  officer  is  promoted  in 
coirrse  to  fill  a  vacancy,  and  is  in  the  perform- 


ance of  the  duties  of  the.  higher  grade  from  the 
date  he  is  to  take  rank,  he  may  be  allowed  the 
increased  pay  from  such  date." — (15  July,  1870, 


830 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1561. 


c.  295,  s.  7,  V.  16,  p.  333 
).  226.) 


5  June,  1872,  c.  306, 
8.  1,  V.  17,  p.  ' 

It  was  superseded  by  the  following  clause 
contained  in  the  act  of  June  22,  1874  (18  Stat., 
191): 

"On  and  after  the  passage  of  this  act,  any 
officer  of  the  Navy  who  may  be  promoted  in 
course  to  fill  a  vacancy  in  the  next  higher  grade 
shall  be  entitled  to  the  pay  of  the  grade  to 
which  promoted  from  the  date  he  takes  rank 
therein,  if  it  be  subsequent  to  the  vacancy  he 
is  appointed  to  fill." 

By  act  of  March  4,  1913  (37  Stat.,  892),  it 
was  pro\-ided  that  "all  officers  of  the  Na\^ 
who,  since  the  third  day  of  March,  eighteen 
himdi'ed  and  ninety-nine,  have  been  ad- 
vanced or  may  hereafter  be  advanced  in  grade  or 
rank  pursuant  to  law  shall  be  allowed  the  pay 
and  allowances  of  the  higher  grade  or  rank 
from  the  dates  stated  in  their  commissions." 

Historical  note. — The  pro^ision  of  the  act 
of  July  15,  1870,  section  7,  chapter  295  (16  Stat., 
333),  "that  "the  increased  pay  of  a  promoted 
officer  shall  commence  from  the  date  he  is  to 
take  rank  as  stated  in  his  commission,"  was 
repealed  by  the  act  of  June  5,  1872,  chapter  306 
(17  Stat.,  226).  The  pertinent  pro\'ision  of  the 
latter  act  is  substantially  reenacted  in  section 
1561,  Ile\'ised  Statutes.  (17  Op.  Atty.  Gen., 
495.) 

By  the  settled  practice  of  the  service,  promo- 
tion to  a  higher  gi-ade  includes  the  right  to  the 
rank  of  that  grade  from  the  date  of  the  vacancy 
filled  by  the  promotion.  This  practice  has  the 
distinct  recognition  of  Congress.  Before  the 
legislation  referred  to,  several  of  the  Attorneys 
General  had  decided  that  it  was  competent  for 
the  appointing  power  to  give  rank  by  relation 
in  making  promotions.  (18  Op.  Atty.  Gen., 
393.) 

Prior  to  the  act  of  July  15,  1870,  chapter  295, 
the  general  rule  was  that  the  increased  pay  of 
all  promoted  officers  in  the  Navy  commenced 
from  the  date  of  the  signature  of  an  appoint- 
ment to  perform  the  duty  of  the  higher  grade  if 
an  appointment  was  given  before  the  issue  of  a 
commission;  or  from  the  date  of  the  commission 
if  no  appointment  was  previously  given.  This 
rule  was  changed  by  the  said  act,  which  pro- 
vided that  "the  increased  pay  of  a  promoted 
officer  shall  commence  from  the  date  he  is  to 
take  rank  as  stated  in  his  commission."  The 
pro\'ision  of  that  act,  which  was  general  and 
applied  to  any  promoted  officer,  was  repealed 
by  the  act  of  June  5,  1872,  chapter  306.  By  the 
latter  act  only  those  officers  who  are  "pro- 
moted in  course  to  fill  a  vacancy"  and  have 
been  in  the  performance  of  the  duties  of  the 
higher  grade  from  their  ranking  date  become 
entitled  to  the  increased  pay  from  that  date. 
Officers  otherwise  promoted  are  impliedly  ex- 
cluded; with  them  it  must  be  deemed  that 
their  increased  pay  was  contemplated  to  com- 
mence at  the  date  of  appointment.  The  pro- 
vision of  the  act  of  1872,  is  substantially  em- 
bodied in  section  1561,  Revised  Statutes.  (17 
Op.  Atty.  Gen.,  319.  But  see  sec.  1562,  R,  S., 
and  note  thereto.) 

The  act  of  June  22,  1874,  chapter  392,  super- 
sedes section  1561,  Re^dsed  Statutes,  as  to 
officers  promoted  thereafter.  (17  Op.  Atty. 
Gen.,  329.) 


The  sole  purpose  and  intent  of  the  first  sec- 
tion of  the  act  of  June  22,  1874,  was  to  modify 
the  rule  prescribed  by  section  1561,  fixing  the 
period  at  which  the  increased  pay  of  an  officer 
on  the  active  list  who  is  "promoted  in  course 
to  fill  a  vacancy,"  shall  begin.  It  in  no  way 
affected  section  1591,  which  thereafter,  as 
before,  remained  in  full  force.  (17  Op.  Atty. 
Gen.,  495.) 

The  language  of  the  act  of  June  22,  1874  (18 
Stat.,  191),  is  too  plain  to  require  construction. 
The  only  question  presented  is  whether  there 
was  a  vacancy  in  the  office  on  the  date  from 
which  the  officer  took  rank  therein  on  promo- 
tion.    (WnUams  V.  U.  S.,  47  Ct.  Cls.,  316,  319.) 

The  first  section  of  the  act  of  June  22,  1874, 
chapter  392,  is  in  pari  materia  with  the  provi- 
sion touching  the  pay  of  promoted  officers  con- 
tained in  section  7  of  the  act  of  July  15,  1870, 
chapter  295,  and  the  act  of  June  5,  1872,  chap- 
ter 296,  and  section  1561,  Re\T.sed  Statutes,  and 
must  be  considered  in  connection  therewith  to 
determine  its  scope.     (17  Op.  Atty.  Gen.,  495.) 

The  act  of  June  22,  1874  (18  Stat.,  191),  su- 
perseded section  1561,  Revised  Statutes,  on  the 
same  subject.  (7  Comp.  Dec,  865,  867;  13 
Comp.  Dec,  606,  608;  but  see  5  Comp,  Dec, 
141,  142.) 

The  President  for  other  purposes  may  insert 
an  antecedent  date  in  the  body  of  a  commission; 
but  antecedent  date  can  affect  an  officer's  pay 
only  in  the  cases  authorized  by  statute. 
(Young  V.  U.  S.,  19  Ct.  Cls.,  145.) 

As  a  general  principle,  it  has  been  repeatedly 
decided  by  the  Attorneys  General  that  con- 
structive rank  retroactively  assigned  to  an 
officer  does  not  draw  after  it  retroactive  pay. 
Even  though  a  statute  expressly  pro\-ide  that 
rank  shall  be  dated  back,  the  pay  is  not  thereby 
dated  back  in  the  absence  of  a  provision  in  the 
statute  to  that  effect.  (6  Op.  Atty.  Gen.,  68. 
But  see  Quackenbush  v.  U.  S.,  177  U.  S.,  20, 
noted  under  sec.  1560,  R.  S.) 

The  President,  by  and  with  the  advice  and 
consent  of  the  Senate,  has  authority  to  confer 
brevet  rank  in  the  Army  from  a  period  antece- 
dent to  the  actual  appointment  and  commission; 
if  the  words  in  the  commission,  "to  take  rank 
from"  a  specified  date  confer  on  the  officer  rank 
from  that  time,  then  they  confer  on  him  also 
the  pay  and  emoluments  of  that  rank,  when  he 
is  on  duty  and  has  a  command  according  to  that 
rank  from  and  after  that  time.  It  seems  that 
pay  and  emoluments  are  necessarily  attached  to 
the  rank,  and  that  if  the  rank  existed  from  the 
date  stated  in  the  commission,  and  the  duty 
and  command  existed,  then  the  pay  and  emolu- 
ments followed  of  course.  (U.  S.  v.  Vinton,  2 
Sumn.,  299,  28  Fed.  Cas.  No.  16,  624.)  _ 

There  is  no  pro\ision  of  law  authorizing  pay- 
ment to  an  officer  of  the  Army  of  the  pay  of  the 
higher  grade  from  the  date  on  which  the  vacancy 
occurred  which  he  is  promoted  to  fill;  but  by 
immemorial  custom  and  practice  the  pay  is 
allowed  from  the  date  of  the  vacancy,  an  the 
same  manner  that  officers  of  the  Navy  are 
authorized  to  be  paid.  Accordingly,  officers 
of  the  Revenue  Cutter  Sersdce  (now  Coast 
Guard),  who  were  given  by  law  the  same  pay 
as  the  Army,  are  likewise  entitled  to  pay  on 
promotion  from  date  of  vacancy.  (9  Comp. 
Dec,  1.) 


831 


Sec.  1562. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


By  special  legislation  the  right  to  compensa- 
tion may  be  so  conferred  as  to  give  an  officer  the 
same  right  thereto  that  he  avouUI  have  had  had 
he  been  appointed  at  a  prior  date.  The  act  of 
June  22,  1874  (18  Stat.,  191),  is  an  instance  of 
this  kind.  Similar  proAdsions  were  made  in 
prior  acts;  namelv,  section  16,  act  of  July  16, 
1862  (12  Stat.,  586);  section  5,  act  of  July  15, 
1870(16  Stat.,  333);  and  section  1,  act  of  June  5, 
1872  ( 17  Stat.,  226).     (9  Comp.  Dec,  1,  2.) 

Officers  advanced  for  heroism. — Revised 
Statutes,  sections  1561  and  1562,  provide  for 
certain  cases  where  the  pay  of  an  officer  shall 
run  from  a  date  anterior  to  the  date  of  his  com- 
mission— which  is  the  date  when  the  instru- 
ment was  executed — but  advancement  in  rank 
"for  eminent  or  conspicuous  conduct  in  battle 
or  extraordinary  heroism' '  under  section  1506, 
Revised  Statutes,  is  not  one  of  such  cases. 
(Young  V.  U.  S.,  19  Ct.  Cls.,  145;  see  also  17  Op. 
Atty.  Gen.,  319,  in  same  case.) 

Cadet  engfineers. — The  words  "any  officer 
of  the  Navy' '  as  employed  in  the  first  section 
of  the  act  of  June  22,  1874,  chapter  392,  com- 
prehend cadet  engineers,  and  that  section  fixes 
the  commencement  of  their  pay  in  the  grade  of 
assistant  engineer  when  promoted  thereto.  (17 
Op.  Atty.  Gen.,  329.  See  note  to  sec.  1522, 
R.  S.,  as  to  cadet  engineers.) 

Retired  officers.— The  act  of  June  22,  1874, 
chapter  392,  was  manifestly  designed  to  fix  the 
commencement  of  the  increased  pay  of  pro- 
moted officers  in  active  service  onlv.  (17  Op. 
Atty.  Gen.,  495.) 

Officer  retired  after  nomination  for  pro- 
motion.— An  officer  who  ciualified  and  was 
nominated  by  the  President  for  promotion  to 
the  grade  of  rear  admiral,  to  fill  a  vacancy  oc- 
curring February  18,  1886,  but  who  was  retired 
on  account  of  age  prior  to  his  confirmation  by 
the  Senate,  may,  if  subsequently  confirmed, 
be  commissioned  as  a  rear  admiral  with  rank 
from  the  date  of  said  vacancy  and  with  the 
retired  pay  of  that  grade.  (18  Op.  Atty.  Gen., 
393;  compare  note  to  sec.  1-588,  R.  S.) 

"Vacancy"  defined. — An  office  which  has 
just  been  created  and  has  never  been  filled  is 
"vacant"  within  the  meaning  of  the  act  of 
June  22,  1874  (18  Stat.,  191),  wliich  pro\ddes 
that  "any  officer  of  the  Navy  who  may  be  pro- 
moted in  course  to  fill  a  vacancy,"  etc.  An 
office  created  by  law  and  never  filled  constitutes 
a  vacancy.  (Williams  v.  U.  S.,  47  Ct.  Cls., 
316.) 

"WTiere  a  statute  enacts  that  there  shall  be  26 
additional  passed  assistant  and  assistant  pay- 
masters on  the  active  list  of  the  Navy,  the 
President,  in  his  discretion,  mav  direct  that 


this  whole  number  so  added  to  the  active  list 
shall  be  of  the  grade  of  passed  assistant  pay- 
master. The  President  having  directed  that 
the  whole  number  be  added  to  the  higher  grade 
the  effect  of  the  law  in  conjunction  ^\ith  the 
President's  order  was  to  create  vacancies  in 
the  grade  of  passed  assistant  paymaster,  within 
the  meaning  of  the  act  of  June  22,  1874.  (Wil- 
liams t'.  U.  S.,  47  Ct.  Cls.,  316.) 

Where  the  law  authorizes  additional  offices  in 
the  Navy  and  the  President  has  discretion  to 
add  the  increase  to  the  higher  of  two  grades, 
the  vacancies  are  created  by  the  law  itself,  and 
not  by  the  President's  order;  when  the  Presi- 
dent issues  his  order,  it  relates  back  to  the  date 
of  the  law  authorizing  the  additional  appoint- 
ments. An  officer  promoted  with  date  of  rank 
subsequent  to  the  date  of  the  law,  but  prior  to 
the  date  of  the  President's  order,  is  entitled 
to  the  increased  pay  of  the  higher  grade  from 
the  date  of  rank.  (Crapo  v.  U.  S.,  50  Ct.  Cls., 
337,  construing  the  act  of  March  4,  1913,  above 
quoted,  and  explaining  Williams  v.  U.  S.,  47 
Ct.  Cls.,  316.) 

There  is  no  reason  in  justice  why  an  officer 
who  has  completed  the  service  necessary  to 
make  him  eligible  to  an  office  of  higher  grade, 
which  office  is  vacant  by  reason  of  the  fact  that 
it  has  never  been  filled  since  it  was  created  by 
law,  should  not  be  entitled  to  the  same  consid- 
eration as  an  officer  who  has  become  eligible  to 
an  office  made  vacant  by  death  or  resignation. 
(WilUams  v.  U.  S.,  47  Ct.  Cls._,  316.) 

For  other  cases,  as  to  definition  of  "vacancy  " 
see  note  to  section  1458,  Revised  Statutes. 

Date  of  vacancy. — The  advancement  in 
numbers  and  promotion  by  the  President  alone 
of  certain  officers  under  section  1506,  Re\'ised 
Statutes,  as  amended  by  the  act  of  June  17, 
1878  (20  Stat.,  144),  did  not  create  vacancies  in 
their  offices,  as  such  advancement  and  promo- 
tion can  be  made  only  with  the  ad\ice  and  con- 
sent of  the  Senate;  accordingly,  junior  officers 
nominated  and  commissioned  to  fill  the  vacan- 
cies resulting  from  such  advancement  of  their 
seniors  were  not  entitled,  under  the  act  of  June 
22,  1874  (18  Stat.,  191),  to  pay  in  the  higher 
grades  from  the  dates  of  rank  stated  in  their 
commissions,  which  were  prior  to  the  date  that 
the  Senate  confirmed  the  promotions  of  their 
seniors  and  the  date  of  such  confirmation  was  the 
date  of  the  resulting  vacancies.  (23  Op.  Atty. 
Gen.,  30  citing  6  Comp.  Dec,  7.) 

For  other  cases  as  to  date  of  vacancies,  see 
note  to  section  1458,  Re\dsed  Statutes;  see  also 
cases  noted  above  under  " '  Vacancy '  defined. " 

Promotion  of  an  enlisted  man. — See  note 
to  section  1560,  ReAdsed  Statutes. 


Sec.  1562.  [In  cases  of  delayed  examination.]  If  an  officer  of  a  class  sub- 
ject to  examination  before  promotion  shall  be  absent  on  duty,  and  by  reason 
of  such  absence,  or  of  other  cause  not  involving  fault  on  his  part,  shall  not  be 
examined  at  the  time  required  by  law  or  regulation,  and  shall  afterward  be 
examined  and  found  qualified,  the  increased  rate  of  pay  to  which  his  promotion 
would  entitle  him  shall  commence  from  the  date  when  he  would  have  been 
entitled  to  it  had  he  been  examined  and  found  qualified  at  the  time  so  required 
by  law  or  regulation ;  and  this  rule  shall  apply  to  any  cases  of  this  description 


832 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1562. 


which  may  have  heretofore  occurred.  And  in  every  such  case  the  period  of 
service  of  the  party,  in  the  grade  to  which  he  was  promoted,  shall,  in  reference 
to  the  rate  of  his  pay,  be  considered  to  have  commenced  from  the  date  when 
he  was  so  entitled  to  take  rank. —  (15  July,  1870,  c.  295,  s.  7,  v.  16,  p.  333.) 

Whether  section  1562  repealed  by  act 
of  1913. — In  so  far  as  section  1562,  Revised 
Statutes,  would  restrict  an  officer's  right  to  the 
pay  of  a  higher  grade  to  the  date  that  he  became 
entitled  to  examination  for  promotion,  which 
in  the  case  of  an  officer  who  had  been  suspended 
under  section  1505,  Revised  Statutes,  would  be 
one  year  from  the  date  of  the  examination 
upon  which  he  had  failed,  the  said  section  of 
the  Revised  Statutes  is  absolutely  inconsistent 
with  the  act  of  March  4,  1913,  allowing  the  pay 
of  the  higher  grade  from  the  date  stated  in  the 
commission;  and  the  later  law  must  govern  in 
a  case  where  the  date  stated  in  the  commission 
is  prior  to  the  date  that  the  officer  became 
entitled  to  reexamination.  (Smith  v.  U.  S., 
50  Ct.  Cls.,  244.) 

The  act  of  March  4,  1913,  deals  with  the 
question  of  pay,  and  the  act  of  1874  and  section 
1562,  Revised  Statutes,  also  deals  with  ques- 
tions of  pay.  It  is  not  necessary  to  determine 
whether  the  last  act  supersedes  the  other  two, 
or  merely  extends  similar  benefits  to  other 
officers  not  included  within  the  provisions  of 
the  former  acts.  It  is  sufficient  to  say  that  the 
term  "all  officers  of  the  Navy"  as  used  in  the 
last  act  is  comprehensive  enough  to  include 
passed  assistant  surgeons.  (Toulon  v.  U.  S.,  51 
Ct.  Cls.,  87,  97.) 

Purpose  of  section  1562. — The  evident 
and  sole  purpose  of  the  law  is  to  prevent  an 
officer  from  being  deprived  by  absence  on  duty 
of  the  increased  pay  which  promotion  would 
have  given  him.  The  meaning  of  the  law  is 
that  if  an  officer  is  delayed  in  his  promotion 
because  he  has  not  been  examined,  and  his 
examination  has  been  delayed  by  his  absence 
on  duty,  he  shall,  when  promoted,  have  the 
increased  pay  of  the  new  grade  to  begin  from 
the  time  when  his  examination  should  have 
taken  place.  _  (Hunt  v.  U.  S.,  116  U.  S.,  394.) 

The  provisions  of  section  1562,  taken  from 
the  act  of  July  15,  1870  (16  Stat.,  333),  were 
enacted  to  relieve  officers,  absent  on  duty 
when  the  time  arrived  for  their  promotion  and 
examination,  from  the  manifest  injustice  of 
keeping  them  out  of  the  pecuniary  and  other 
benefits  of  promotion  until  such  time  as  the 
exigencies  or  convenience  of  the  service  ad- 
mitted of  their  examination.  The  period  of 
delay  is  often  long,  and  during  the  delay  other 
officers  who  entered  the  Navy  at  a  later  date 
more  fiavorably  stationed,  are  examined  and' 
but  for  the  provisions  of  section  1562  would 
take  rank  above  and  receive  higher  pay  than 
their  less  fortunate  fellow  officers  of  longer  serv- 
ice.    (Howell  V.  U.  S.,  25  Ct.  Cls.,  288,  292.) 

The  theory  of  the  statute  is  that  when  the 
officer  became  due  for  promotion  he  was  com- 
petent to  perform  the  duties  of  the  higher  office, 
was  then  entitled  to  examination,  and,  being 
without  fault,  his  examination  was  postponed; 
but  the  benefits  of  the  statute  are  f  undamentally 
based  upon  capacity  and  competency,  and  to 
hold  otherwise  would  be  to  declare  that,  with- 


By  act  of  June  22,  1874  (18  Stat.,  191),  it  was 
provided  that  ' '  on  and  after  the  passage  of 
this  act,  any  officer  of  the  Navy  who  may 
be  promoted  in  course  to  fill  a  vacancy  in 
the  next  higher  grade  shall  be  entitled  to 
the  pay  of  the  grade  to  which  promoted 
from  the  date  he  takes  rank  therein,  if  it  be 
subsequent  to  the  vacancy  he  is  appointed 
to  fill." 

By  act  of  March  4,  1913  (37  Stat.,  892),  it  was 
provided  that  "all  officers  of  the  Navy  who, 
since  the  third  day  of  March,  eighteen  hun- 
dred and  ninety-nine,  have  been  advanced 
or  may  hereafter  be  advanced  in  grade  or 
rank  pui'suant  to  law  shall  be  allowed  the 
pay  and  allowances  of  the  higher  grade  or 
rank  from  the  dates  stated  in  their  com- 
missions." 

See  note  to  section  1495,  Revised  Statutes,  as  to 
when  examinations  are  required;  and  see 
act  of  March  4,  1917  (39  Stat.,  1171),  em- 
powering commanding  officers  on  foreign 
stations  to  convene  examining  boards  when 
authorized  by  the  Secretary  of  the  Navy. 

Section  1562  not  repealed  by  act  of 
1874. — There  is  no  conflict  between  section 
1562,  Revised  Statutes,  which  applies  to  officers 
promoted  after  a  prescribed  period  of  service 
without  the  necessity  of  any  vacancy,  and  the 
act  of  June  22,  1874,  which  applies  to  officers 
promoted  in  course  to  fill  vacancies.  Accord- 
ingly, an  officer  promoted  to  the  grade  of  chief 
boatswain  after  a  specified  period  of  service 
and  not  to  fill  a  vacancy — there  being  no  va- 
cancy for  a  chief  boatswain  other  than  that 
created  by  his  own  service  and  examination  as 
boatswain — is  entitled,  under  section  1562,  Re- 
vised Statutes,  to  the  pay  of  chief  boatswain 
from  the  date  he  took  rank  as  stated  in  his  com- 
mission, that  being  the  date  on  which  he  was 
entitled  to  examination  for  promotion.  (Doyle 
V.  IT.  S.,  47  Ct.  Cls.,  356.) 

The  act  of  July  16,  1862,  section  16  (12  Stat., 
586),  provided  "that  whenever  any  officer  of 
the  Navy,  of  a  class  subject  by  law  or  regulation 
to  examination  before  promotion  to  a  higher 
grade,  shall  have  been  absent  on  duty  at  the 
time  when  he  should  have  been  examined,  and 
shall  have  been  found  qualified  at  a  subsequent 
examination,  the  increased  rate  of  pay  to  which 
he  may  be  entitled  shall  be  allowed  to  him 
from  the  date  when  he  would  have  received  it 
had  he  been  found  qualified  at  the  time  when 
his  examination  should  have  taken  place." 
Held,  that  any  right  an  officer  may  have  had  to 
claim  back  pay,  under  any  construction  of  the 
act  of  July  16,  1862,  from  a  date  prior  to  the 
occurrence  of  the  vacancy  to  which  he  was 
promoted,  was  cut  off  by  the  act  of  June  22, 
1874  (IS  Stat.,  191),  which  latter  act  authorizes 
payment  only  from  the  time  the  promoted 
officer  takes  rank  in  the  higher  grade  and  sub- 
sequent to  the  date  of  the  vacancy  to  which  in 
course  he  is  promoted.  (Adamson  v.  U.  S.,  19 
Ct.  Cls.,  623,  628.) 


833 


Sec.  1562. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


out  the  capacity  to  perform  the  duties  of  the 
position,  the  officer  was  entitled  to  pay.  (Aus- 
tin r.  U.  S.,  20  Ct.  Cls.,  2m.) 

When  entitled  to  examination. — Under  a 
misconstruction  of  the  law  a  practice  grew  up 
in  the  Navy  Department  by  which  promoted 
officers  were  allowed  the  pay  of  their  new  grade 
from  the  time  when  they  became  eligible  for 
examination;  but  this  was  corrected  by  the 
Secretary  of  the  Navy  in  1877,  who  recom- 
mended that  the  increased  pay  of  a  promoted 
officer  should  be  allowed  only  from  the  time 
when  a  vacancy  occurred  to  which  he  could 
have  been  promoted  if  an  opportunity  for  ex- 
amination had  been  given  him.  This  recom- 
mendation was  based  on  a  correct  construction 
of  the  statute.     (Hunt  v.  U.  S.,  116  U.  S.,  394.) 

Under  the  pro\dsions  of  the  act  of  July  16, 
1862  (12  Stat.,  586,  sec.  16),  an  officer  of  the 
Na-s'y  of  a  class  subject  by  law  or  regulation  to 
examination  before  promotion  to  a  higher  grade 
was  not  entitled  to  be  examined  until  his  turn 
for  promotion  had  arrived  or  was  near  at  hand. 
(Hunt  V.  U.  S.,  116  U.  S.,  .394.) 

Under  a  regulation  which  pro\dded  that 
"candidates  for  promotion  to  the  grade  of  chief 
engineer  must  have  served  at  least  two  years  at 
sea  as  first  assistant  engineers  on  board  a  naval 
steamer"  a  first  assistant  engineer  became 
eligible  to  examination  for  promotion  when  he 
had  served  two  years  at  sea  upon  a  naval 
steamer;  but  he  was  merely  eligible.  He  was 
not  entitled  to  be  examined  until  his  turn  for 
promotion  had  arrived  or  was  near  at  hand. 
In  no  event,  therefore,  could  he  demand  that 
the  increased  pay  of  his  new  gi'ade  should  begin 
until  he  had  a  right  to  be  examined  for  promo- 
tion. It  would  be  an  unwarranted  construction 
of  the  statute  and  regulation  to  hold  that  as 
soon  as  a  first  assistant  engineer  had  served  two 
years  at  sea  on  board  a  naval  steamer  he  was 
entitled,  as  a  matter  of  right,  to  an  immediate 
examination  whether  there  was  a  vacancy  in 
the  next  higher  grade  to  which  he  could  be 
promoted  or  not;  and  that  if  his  examination 
was  delayed  by  his  absence  on  duty  he  could, 
when  examined  and  promoted,  demand  the 
pay  of  a  chief  engineer  from  the  time  when  he 
had  completed  his  two  years'  service  at  sea. 
(Hunt  V.  U.  S.,  116  U.  S.,  394.) 

For  other  cases,  see  note  to  section  1495,  Re- 
vised Statutes. 

OflScer  promoted  subject  to  examina- 
tion.— An  officer  nominated  and  confirmed  for 
promotion,  subject  to  the  condition  that  his 
commission  be  \vithheld  until  he  pass  an  ex- 
amination required  by  law,  will  not  be  entitled 
to  the  salary  of  the  office  until  he  comply.  Un- 
less there  be  a  holding  of  an  office,  de  facto  or 
de  jure,  there  is  no  right  to  its  salary.  (Crygier 
v.V.  S.,  25  rt.  ris.,  268.) 

Officer  failing  upon  examination  for  pro- 
motion.— If  a  naval  officer's  examination  for 
promotion  be  postponed  through  no  fault  of 
his,  and  he  afterwards  be  examined  and  found 
qualified,  the  increased  rate  of  pay  to  which  his 
promotion  would  entitle  him  shall  commence 
from  the  date  when  he  would  have  been  en- 
titled to  it  had  he  been  examined  and  found 
qualified  at  the  time  so  required  by  law  or 
regulation;  but  this  does  not  extend  to  officers 
who  upon  examination,  being  found  not  quali- 


fied, must  be  suspended  under  section  1.505, 
Revised  Statutes,  from  promotion  for  one  year. 
(Austin  V.  U.  S.,  20  Ct.  Cls.,  269.) 

For  other  cases,  see  note  to  section  1505,  Re- 
vised Statutes;  and  see  specific  cases  noted 
below. 

Section  1562  applicable  to  warrant  offi- 
cers.— An  officer  in  the  Navy  whose  promotion 
depends  not  upon  vacancies  occurring  but  upon 
length  of  service  as  a  boatswain  and  examina- 
tion for  promotion  is  entitled  to  the  increased 
pay  of  the  office  of  chief  boatswain  from  the 
date  on  which  he  became  entitled  to  examina- 
tion. In  such  case  he  is  entitled  to  the  in- 
creased pay,  not  under  the  act  of  June  22,  1874 
(18  Stat.,  191),  which  relates  only  to  promo- 
tions in  course  to  fill  vacancies,  but  under  sec- 
tion 1562,  Revised  Statutes.  In  this  case  the 
officer  was  promoted  on  April  14,  1905,  to  take 
rank  as  chief  boatswain  from  March  6,  1905, 
the  date  he  became  entitled  to  examination. 
Held,  that  he  is  entitled  to  increased  pay  from 
said  date  of  rank.  (Doyle  v.  U.  S.,  47  Ct.  Cls., 
356.) 

Act  of  March  4,  1913,  construed  liter- 
ally.— If  the  act  of  March  4,  1913,  quoted  above, 
means  anything,  it  was  intended  by  Congress 
thereby  to  confer  upon  the  appointing  power  the 
right  to  name  the  date  upon  which  an  officer 
advanced  in  grade  or  rank  should  take  such 
grade  or  rank  and  receive  pay  and  allowances 
accordingly.  This  is  the  plain  language  of  the 
law.     (Smith  v.  U.  S.,  50  Ct.  Cls.,  244.) 

The  act  of  March  4,  1913  (37  Stat.,  892), 
would  seem  to  be  too  plain  for  construction. 
The  said  act,  in  language  which  can  not  be  mis- 
understood, provides  that  officers  "shall  be  al- 
lowed the  pay  and  allowances  of  the  higher 
grade  or  rank:  from  the  date  stated  in  their  com- 
missions."    (Smith  V.  U.  S.,  50  Ct.  Cls.,  244.) 

The  act  of  March  4,  1913,  is  especially  free 
from  ambiguity,  and  was  intended  to  fix  a  date 
from  which  officers .  coming  within  its  terms 
should  be  paid.  It  is  designed  to  establish  uni- 
formity, and  set  at  rest  disputations  \\-ith  re- 
spect to  its  subject  matter,  by  bringing  the 
whole  subject  of  pay  vvithin  fixed,  definite,  and 
certain  limitations.  (Crapo  v.  U.  S.,  50  Ct. 
Cls.,  337.) 

An  officer's  commission  determines  the  date 
it  was  intended  he  should  take  rank,  and  he  is 
entitled  under  the  act  of  March  4,  1913,  to  the 
pay  and  allowances  fixed  therefor  by  law  from 
said  date.     (Crapo  v.  U.  S.,  50  Ct.  Cls.,  337.) 

The  single  question  presented  in  a  case  aris- 
ing under  the  statute  of  March  4,  1913,  is.  Was 
the  officer's  status  such  as  to  entitle  him  to  pay 
from  the  date  stated  in  his  commission?  ( Crapo 
V.  U.  S.,  50  Ct.  Cls.,  337.) 

If  an  officer  promoted  to  a  higher  office  was 
eligible  to  the  office  on  the  date  stated  in  his 
commission,  he  is  entitled  under  the  act  of 
March  4,  1913,  to  the  pay  and  allowances  of  the 
higher  office  from  said  date;  if  he  was  not, 
neither  the  court  nor  any  administrative  officer 
of  the  Government  has  a  right  to  alter  the  date 
of  his  commission  or  to  change  the  essential 
proceedings  followed  by  the  President  in  doing 
what  it  may  be  presumed  he  thought  he  had  a 
right  to  do.     (Crapo  v.  U.  S.,  50  ('t.  ("Is.,  337.) 

Erroneous  date  in  commission  can  not  be 
changed  by  the  courts. — ^Tien  the  Presi- 


834 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1562. 


dent,  acting  in  pursuance  of  law,  nominates 
and  appoints  an  officer,  and  the  Senate  con- 
firms the  appointment,  his  commission  there- 
upon issued  is  his  warrant  of  authority,  and  the 
date  thereof  can  not  be  changed,  eliminated, 
or  substituted  by  an  administrative  officer 
of  the  Government  nor  by  the  com't.  (Crapo  v. 
U.  S.,  50  Ct.  Cls.,  337.) 

The  administrative  officers  can  not  change  the 
date  of  rank,  neither  can  the  court  change  the 
commission.  The  right  to  change  it  rests  with 
the  appointing  power.  (Toulon  v.  U.  S.,  51 
Ct.  Cls.,  87.) 

Erroneous  date  of  commission  not  con- 
trolling under  act  of  March  4,  1913. — 
Under  the  act  of  March  4,  1913,  the  date  stated 
in  the  commission  is  not  controlling;  the  court 
can  not  change  the  date,  where  it  appears  to  be 
erroneous,  but  it  can  refuse  relief  where  the 
date  is  erroneous.  (Downes  v.  U.  S.,  52  Ct. 
Cls.,  237,  240.) 

The  statute  of  March  4,  1913,  does  not  author- 
ize paj^  and  allowances  where  the  date  stated 
in  the  commission  is  a  date  prior  in  point  of 
time  to  that  on  which  the  officer  was  eligible 
to  promotion  to  the  grade  to  which  he  is  pro- 
moted.    (Toulon  V.  U.  S.,  51  Ct.  Cls.,  87.) 

The  language  of  the  Court  of  Claims  in  Smith 
V.  United  States  (50  Ct.  Cls.,  244,  249,  above 
noted)  implies,  as  a  matter  of  course,  that  in 
naming  the  date  upon  which  an  officer  pro- 
moted should  take  rank  and  receive  pay  positive 
law  is  not  ignored.  (Toulon  v.  U.  S.,  51  Ct. 
Cls.,  87.) 

WTiere  the  commission  issued  to  a  naval 
officer  shows  that  the  date  of  rank  is  incorrect 
he  can  not,  by  virtue  of  the  act  of  March  4, 
1913,  recover  pay  from  the  date  so  stated.  As 
he  can  not  recover  pay  from  the  date  stated  in 
his  commission  in  such  case,  he  can  not  recover 
at  all.     (Toulon  v.  U.  S.,  51  Ct.  Cls.,  87.) 

Wliere  an  erroneous  date  is  stated  in  the  com- 
mission, and  the  increased  pay  of  the  higher 
grade  denied  by  the  Court  of  Claims  for  that 
reason,  and  the  President,  with  the  ad\dce  and 
consent  of  the  Senate,  issues  a  new  commission 
to  correct  the  date  of  rank  pre\dously  stated, 
the  increased  pay  will  be  allowed  from  the  date 
stated  in  the  new  commission.  (Toulon  v. 
U.  S.,  52  Ct.  Cls.,  333.) 

Act  March  4,  1913,  requires  that  ad- 
vancement be  pursuant  to  law. — The 
statute  of  March  4,  1913,  does  not  provide  that 
when  an  officer  is  advanced  in  grade  or  rank  he 
shall  haA'e  the  pay  and  allowances  of  the  higher 
grade  or  rank  from  the  date  stated  in  his  com- 
mission, but  it  does  provide  that  when  the  ad- 
vancement is  "pursuant  to  law"  he  shall  have 
them.  When  he  is  advanced  or  promoted 
contrary  to  law,  if  such  a  case  is  supposable,  or 
when  the  period  of  suspension  required  by  sec- 
tion 1505,  Re\ised  Statutes,  for  instance,  is 
overlooked  or  disregarded,  he  can  not  be  said 
to  have  been  advanced  pursuant  to  law;  and 
in  such  case  he  can  not  be  entitled  to  the  pay 
and  allowances  of  the  higher  grade  from  the 
date  stated  in  his  commission.  (Downes  v. 
U.  S.,  52  Ct.  Cls.,  237.) 

The  Court  of  Claims  did  not  hold  in  the  cases 
of  Smith,  Crapo,  or  Toulon  (50  Ct.  Cls.,  244, 
342,  and  51  Ct.  Cls.,  87,  noted  above),  and  does 
not  now  hold,  that  the  act  of  March  4,  1913, 


authorizes  the  fixing  of  a  date  in  the  commis- 
sion from  which  the  rank  begins,  which  is  con- 
trolling on  the  court  regardless  of  whether  the 
promotion  was  made  pursuant  to  law  or  not 
(Downes  v.  U.  S.,  52  Ct.  Cls.,  237.) 

The  act  of  March  4,  1913,  contemplates  that 
the  officer  will  be  advanced  under  and  in  ac- 
cordance with  law,  and  that  the  date  from 
which  the  higher  rank  begins  will  be  stated  in 
pursuance  of  law.  Conversely,  it  does  not 
contemplate  that  an  arbitrary  date  will  be 
chosen,  nor  that  an  officer  will  be  advanced  in 
contravention  of  the  positive  requirement  that 
he  shall  not  be  promoted  or  advanced  while 
under  suspension  for  a  failure  to  professionally 
qualify  when  examined.  (Downes  v.  U.  S  ,  52 
Ct..  Cls.,  237.) 

Under  the  act  of  March  4,  1913,  the  court  has 
the  right  to  inquire  as  to  whether  there  was  a 
vacancy,  and  also  the  right  to  inquire  whether 
the  date  of  commission  was  prior  to  any  va- 
cancy, or  whether  any  positive  law  had  been 
ignored  in  fixing  the  date  of  rank  in  the  com- 
mission; but  ordinarily  the  court  can  not 
look  into  a  matter  relating  purely  to  administra- 
tive action.  (Downes  v.  U.  S.,  52  Ct.  Cls 
237,  243.) 

Where  a  machinist  was  advanced  to  the  grade 
of  chief  macliinist,  and  given  a  date  of  rank  in 
the  higher  grade  which,  in  the  opinion  of  the 
Court  of  Claims,  was  prior  to  the  date  on  which 
he  became  eligible  for  promotion,  held,  that  he 
was  not  promoted  in  grade  or  rank  pursuant  to 
law,  and  is  illegally  in  the  ser\dce;  his  claim  for 
difference  in  pay  must  therefore  be  denied. 
(Hooper  v.  U.  S.,  53  Ct.  Cls.,  90.) 

An  officer  was  actually  commissioned  as 
passed  assistant  surgeon  on  July  25,  1912,  by 
promotion  from  the  grade  of  assistant  surgeon. 
On  that  date  he.  was  eligible  to  promotion,  and 
his  appointment  was  therefore  pursuant  to  law. 
His  commission,  however,  purported  to  give 
him  rank  in  the  higher  grade  from  April  11, 
1911,  on  which  date  he  was  not  eligible  to  pro- 
motion. It  would  be  a  too  literal  \'iew  of  the 
act  of  March  4,  1913,  to  hold  that  his  promotion 
was  pursuant  to  law,  because  at  the  time  of  his 
actual  promotion  such  promotion  could  legally 
be  made.  The  date  which  the  statute  contem- 
plates would  be  stated  in  the  commission  is 
that  upon  which  the  officer  becomes  eligible  to 
promotion,  because  the  statute  regulates  the 
pay  during  the  period  of  constructive  ser\ice, 
and  therefore  the  court  must  take  notice  of  the 
date  when  such  constructive  ser^dce  can  begin, 
pursuant  to  law.  The  ascertainment  of  that 
date  is  confined  in  the  first  instance  to  the  ap- 
pointing power.  (Toulon  v.  U.  S.,  51  Ct.  Cls., 
87.) 

The  promotion  of  an  assistant  surgeon  before 
completing  three  years'  service  would  not  be 
pursuant  to  law,  and  likewise  his  promotion 
during  a  period  of  six  months'  suspension  under 
section  1505,  Re^dsed  Statutes,  as  amended, 
would  not  be  pursuant  to  law.  Accordingly, 
held,  that  he  was  not  adA'anced  pursuant  to  law, 
because  he  was  given  a  date  of  rank  prior  to  the 
expiration  of  his  period  of  suspension.  (Tou- 
lon V.  U.  S.,  51  Ct.  Cls.,  87.) 

Specific  cases  involvinfi;'  retroactive 
rank.— See  cases  noted  above,  under  this  sec- 
tion; see  aUo  notes  to  sections  1560  and  1561, 


835 


Sec.  1562. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Re\'i8e(i  Statutes;  and  see  note  to  section  1458, 
Revised  Statutes,  under  "Antedating  rank  on 
promotion. " 

A  lieutenant  (junior  grade)  became  due  for 
promotion  to  fill  a  vacancy  which  existed  in 
the  grade  of  lieutenant  on  February  1,  1898;  Iw 
reason  of  absence  on  duty  on  board  the  U.  S.  S. 
Maine  he  could  not  be  examined;  on  February 
15,  1898,  he  was  injured  in  the  destruction  of 
the  Maine,  from  which  injuries  he  died  in  June 
1898;  in  the  meantime,  after  his  injuries  and 
prior  to  his  death  therefrom,  he  was  commis- 
sioned a  full  lieutenant  to  rank  from  P'ebruary  1, 
1898.  He  was  allowed  in  his  lifetime  the  pay 
of  a  full  lieutenant  from  the  date  he  took  rank,  to 
which  he  was  clearly  entitled  in  the  application 
of  section  1562  and.  the  act  of  June  22,  1874, 
chapter  392.  Held,  that  at  the  time  of  his 
death  he  was  a  full  lieutenant,  and  that  his 
widow,  under  the  act  of  March  30,  1898  (30 
Stat.,  346,  sec.  2),  was  entitled  to  a  sum  equal 
to  12  months'  sea  pay  of  the  grade  of  lieutenant, 
which  is  the  amount  that  the  officer  would  have 
been  entitled  to  under  section  1562,  Revised 
Statutes,  and  the  act  of  June  22,  1874  (18  Stat., 
191),  had  he  survived.     (Blandin    v.    U.    S., 

35  Ct.  Cls.,  568,  distinguishing  Swan  v.  U.  S., 
113  U.  S.,  747.) 

An  assistant  surgeon  in  the  Navy  became 
due  for  promotion  to  passed  assistant  surgeon  to 
fill  a  vacancy  which  occurred  on  July  1,  1897; 
he  was  not  promoted  until  February  13,  1899, 
when  he  was  commissioned  as  passed  assistant 
surgeon  to  rank  from  July  9,  1897.  Held,  that 
in  consequence  of  section  1562,  Revised  Stat- 
utes, and  the  act  of  June  22, 1874  (18  Stat.,  191), 
his  rate  of  pay  on  ^lay  1, 1898,  was  that  of  passed 
assistant  surgeon,  and  should  be  so  computed  for 
the  purpose  of  determining  his  share  in  the  dis- 
tribution of  bounty  under  section  4631,  Re- 
vised Statutes.     (Engagement  at  Manila  Bay, 

36  Ct.  Cls.,  206,  209,  citing  Blandin  v.  U.  S., 
35  Ct.  Cls.,  568.) 

Where  an  officer  was  entitled  to  his  first  ex- 
amination for  promotion  on  March  3,  1909,  and 
through  no  fault  of  his  own  such  examination 
was  delayed  until  May  17,  1909;  and  he  failed 
on  such  examination  and  was  suspended  from 
promotion,  under  section  1505,  Plevised  Stat- 
utes, for  one  year  from  May  17,  1909;  and  he 
was  again  examined  on  June  10,  1910,  and  pro- 
moted with  date  of  rank  in  his  commission  as 
March  3,  1910,  being  one  year  from  the  date  he 
originally  became  due  for  promotion.  Hdd, 
that  under  the  act  of  March  4,  1913,  he  was  en- 
titled to  pay  from  the  date  so  stated  in  his  com- 
mission, and  that  it  was  but  doing  him  justice 
to  date  his  rank  one  year  later  than  the  date 
when  he  was  entitled  to  his  first  examination. 
(Smith  v._  U.  S.,  50  Ct.  Cls.,  244.) 

An  assistant  surgeon  becoming  eligible  for 
promotion  to  passed  assistant  surgeon  after 
three  years'  service  and  who  failed  profession- 
ally upon  examination  for  promotion,  was 
again  eligible  for  promotion,  under  section 
1505,  Revised  Statutes,  as  amended,  after  the 
expiration  of  six  months  from  the  date  he 
originally  became  due.  Where  he  was  com- 
missioned in  the  higher  grade,  upon  qualifying 
by  reexamination,  with  a  date  of  rank  earlier 
than  six  months  from  the  date  he  originally 
became  due  for  promotion,  he  was  not  enti- 


tled to  pay  from  the  date  of  rank  so  stated  in  his 
commission.  (Toulon  v.  U.  S.,  51  Ct.  Cls.,  87; 
see  also  note  to  sec.  1505,  R.  S.) 

The  act  of  March  3,  1915  (38  Stat.,  942), 
created  in  the  Navy  the  grades  of  acting  pay 
clerk,  pay  clerk,  and  chief  pay  clerk,  and 
rendered  eligible  for  commission  as  chief  pay 
clerks,  paymasters'  clerks  then  in  the  Navy  and 
former  paymasters'  clerks  whose  appointments 
had  been  revoked  prior  to  the  act  and  who  had 
not  less  than  six  years  actual  service  as  pay- 
masters' clerks.  Hdd,  that  a  paymaster's  clerk 
who  was  commissioned  in  accordance  A\ath  said 
act  as  chief  pay  clerk  was  not  "advanced  in 
gi'ade  or  rank  pursuant  to  law'  within  the 
meaning  of  the  act  of  March  4,  1913;  that  said 
paymaster's  clerk  was  not  a  member  of  the 
new  corps  created  by  the  act  of  1915  until  he 
was  commissioned  therein ;  and  that  his  appoint- 
ment as  chief  pay  clerk  was  no  more  an  advance- 
ment in  giade  or  rank  than  would  have  been 
the  appointment  of  a  former  paymaster's  clerk 
ha\dng  the  requisite  qualifications;  that  in 
either  case  the  appointment  would  be  that  of  an 
outsider,  who  had  no  grade  or  rank  as  a  warrant 
or  commissioned  officer  at  the  time  of  such 
appointment.  The  question  is  not  the  same 
as  that  in  the  case  of  Smith  v.  United  States 
(noted  above),  in  which  a  machinist  was  pro- 
moted to  the  grade  of  chief  machinist  pursuant 
to  the  law  which  in  terms  referred  to  such  ad- 
vancement as  a  promotion.  Accordingly,  in 
this  case,  where  the  officer  was  commissioned 
as  chief  pay  clerk  on  August  3,  1915,  but  was 
given  date  of  rank  as  July  1,  1915,  he  was  not 
entitled  to  pay  as  chief  pay  clerk  from  the  date 
of  rank  so  stated  in  his  commission.  (Seifert  v. 
U.  S.,  52  Ct.  Cls.,  40.) 

An  officer  became  due  for  promotion  by 
seniority  to  fill  an  existing  vacancy  in  the 
next  higher  grade;  he  was  found  upon  exam- 
ination incapacitated  for  service  by  reason 
of  hernia  contracted  in  the  line  of  duty,  and 
therefore  not  recommended  by  the  board  for 
promotion;  the  Bureau  of  Medicine  and  Surg- 
ery recommended  that  he  be  ordered  to  a 
na^•al  hospital  for  operative  treatment,  and 
that  he  be  reexamined  when  he  had  recovered 
to  determine  his  physical  fitness  for  promotion; 
the  Secretary  of  the  Navy,  reciting  the  rec- 
ommendation of  the  Bureau  of  Medicine 
and  Surgery,  transmitted  the  record  to  the 
President  advising  that  the  findings  and  rec- 
ommendations of  the  board  of  medicial  ex- 
aminers be  approved,  with  a  view  to  effect- 
ing the  recommendation  of  the  Bureau  of 
Medicine  and  Surgery.  The  President's  in- 
dorsement was  as  follows:  "The  findings 
and  recommendation  of  the  board  in  thia 
case  are  approved."  Thereafter  the  officer 
was  admitted  to  the  naval  hospital  for  opera- 
tive treatment,  and  ha\-ing  subsequently 
passed  the  required  examinations  was  pro- 
moted from  the  date  of  the  vacancy  which 
had  been  held  open  for  liim  in  the  meantime. 
Held,  that  the  officer  was  ad^'anced  in  grade 
or  rank  pursuant  to  law  under  the  act  of  March 
4,  1913,  and  is  entitled  to  the  pay  of  the  higher 
grade  for  constructive  service  from  the  date 
of  the  vacajicy,  as  stated  in  his  commission; 
further  held,  that  it  would  be  too  strict,  if  not 
strained,    a   construction   of   the    President's 


836 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1562. 


action  to  say  that  he  merely  approved  the 
finding  of  the  l)oard  of  medical  examiners, 
when  as  a  matter  of  fact  he  had  before  him 
not  only  their  report  hut  the  recommendation 
of  the  Bureau  of  Medicine  and  Surgery  and 
the  advice  thereon  of  the  Secretary  of  the 
Navy.  It  was  not  an  unreasonable  construc- 
tion' that  the  President's  approval  of  the 
board's  findings  and  recommendation  in- 
cluded an  approval  of  the  recommendation 
of  the  BTU-eau  of  Medicine  and  Surgery.  Fur- 
ther, held,  that  section  1505,  Revised  Statutes, 
as  amended,  relating  to  suspension  from 
promotion  applies  to  officers  not  professionally 
qualified,  and  is  not  applicable  in  a  case 
where  the  examination  develops  merely  a 
physical  disqualification.  (Downee  v.  U.  S., 
52  Ct.  Cls.,  237;  see  also  note  to  sec.  1505, 
R.  S.) 

An  assistant  surgeon  who,  on  original  ap- 
pointment as  such,  executed  his  oath  of  office 
on  December  4,  1907,  but  whose  commission, 
in  accordance  with  administrative  custom, 
fixed  his  date  of  rank  as  November  29,  1907, 
may  be  regarded  as  becoming  eligible  for 
promotion  after  three  years  from  the  date 
of  rank  so  stated  in  his  original  commission, 
instead  of  requiring  three  years'  actual  ser^-ice; 
and  the  said  officer  ha^•ing  failed  on  examina- 
tion for  promotion  and  been  suspended  for 
six  months,  in  accordance  with  section  1505, 
Revised  Statutes  as  amended,  he  again  be- 
came eligible  for  promotion  after  the  expira- 
tion of  three  years  and  six  months  from  the 
date  he  took  rank  as  stated  in  his  original 
commission,  that  is,  on  May  29,  1911;  and 
having  been  promoted  to  the  gi-ade  of  passed 
assistant  surgeon  to  rank  from  the  last-named 
date,  he  was  entitled  under  the  act  of  March 
4,  1913,  to  be  paid  from  the  date  of  rank  so 
stated  in  his  commission.  (Toulon  v.  U.  S., 
52  Ct.   Cls.,   333.) 

A  macMnist  in  the  Na\'y  become  eligible 
for  promotion  to  chief  machinist  in  December, 
1912;  in  February,  1913,  a  naval  examining 
board  reported  the  said  machinist  qualified 
for  promotion;  however,  owing  to  unfavorable 
reports  as  to  fitness,  the  department  recom- 
mended and  the  President  directed  in  April, 
1913,  that  final  action  on  the  recommendation 
be  suspended  for  one  year;  in  October,  1914, 
he  was  reexamined  and  found  suffering  from 
neurasthenia  contracted  in  line  of  duty  and 
thereby  incapacitated  for  service,  and  was  not 
recommended  for  promotion;  the  President 
approved  this  report  of  the  board  of  medical 
examiners  on  November  21,  1914;  subsequent- 
ly he  was  examined  1)y  a  naval  retiring  board 
and  found  temporarily  incapacitated  for 
active  ser\'ice  by  reason  of  neurasthenia, 
and  recommendation  was  made  that  he  be 
granted  three  months'  sick  leave;  this  rec- 
ommendation was  approved  by  the  President 
on  January  2,  1915;  in  June,  1915,  he  was 
again  examined  by  a  naval  retiring  board 
and  found  not  incapacitated  for  active  duty, 
and  the  President  approved  this  report;  in 
Septeml)er,  1915,  he  was  again  examined  for 
promotion  and  found  physically  qualified, 
but  in  Novemljer  following  the  naval  examin- 
ing l)oard  reported  him  as  mentally  and  moral- 
ly but  not  professionally  qualified,  and  did 


not  recommend  him  for  promotion;  in  De- 
cember, 1915,  the  President  approved  this 
repoi't  and  directed  that  he  be  suspended 
from  promotion  for  period  of  six  months;  in 
July,  1916,  he  was  examined  by  a  board  of 
medical  examiners  and  found  physically  in- 
capacitated for  duty  and  it  was  recommended 
by  the  board  that  he  be  reexamined  physical- 
ly in  six  months;  no  action  was  taken  by  the 
President  on  this  report;  in  January,  1917, 
he  was  reexamined  l>y  a  board  of  medical 
examiners  and  a  naval  examining  board, 
found  qualified  by  both  l)oards,  and  recom- 
mended for  promotion.  These  reports  were 
approved  by  the  President  and  on  April  30, 
1917,  the  officer  was  appointed  a  chief  machin- 
ist in  the  Na\'y  to  rank  from  June  27,  1913, 
being  six  months  after  the  date  that  he  orig- 
inally became  due  for  promotion;  he  was 
paid  as  machinist  to  January  29,  1917,  and 
claimed  the  difference  in  pay  between  that 
of  machinist  and  that  of  chief  machinist  from 
June  27,  1913,  the  date  of  rank  stated  in  his 
commission.  Held,  that  under  sections  1493, 
Re^'ised  Statutes,  and  section  1505,  Re\ised 
Statutes,  as  amended  by  the  act  of  March  11, 
1912  (37  Stat.,  73),  the  act  of  June  18,  1878 
(20  Stat.,  165),  and  the  act  of  March  4,  1913 
(37  Stat.,  892),  he  was  not  promoted  in  grade 
or  rank  piu-suant  to  law,  l)ecause  he  was  not 
eligible  for  promotion  on  the  date  of  rank 
stated  in  his  commission,  and  he  is  therefore 
illegally  in  the  service  and  not  entitled  to 
difference  of  pay  as  claimed.  (Hooper  v. 
U.  S.,  53  Ct.  Cls.,  90;  see  also  note  to  sec.  1505, 
R.  S.)  _ 

An  ensign  in  the  Na^^  became  eligible  for 
promotion  by  length  of  ser\dce  to  the  grade  of 
lieutenant  (junior  grade)  on  January  31,  1910; 
he  successfully  passed  his  examination,  as  re- 
quired by  section  1496  of  the  Re\dsed  Statutes, 
but  was  found  not  physically  qualified  by  the 
medical  board  acting  under  section  1493,  Re- 
vised Statutes,  and  it  was  recommended  by 
said  board  that  he  be  further  examined  physi- 
cally in  three  months,  in  order  to  ascertain  the 
extent  of  his  incapacity.  The  findings  and 
recommendations  of  both  boards  were  approved 
by  the  President  on  December  12,  1910.  Being 
subsequently  examined  and  found  physically 
qualified,  he  was  commissioned  as  a  lieutenant 
(junior  grade)  on  May  2,  1911,  to  rank  fi'om 
January  31,  1910.  Held,  that  he  was  entitled 
to  the  pay  of  lieutenant  (junior  gi-ade)  from  the 
date  stated  in  his  commission;  that  this  case  is 
more  analogous  to  that  of  Downes  v.  United 
States  (above  noted)  than  that  of  Hooper  v. 
United  States  (above  noted).  (Wadsworth  v. 
U.  S.,  55  Ct.  Cls.,  383.) 

Distinction  between  rank  and  oflB.ce.— 
The  distinction  between  rank  and  office  is  not 
without  importance  when  considering  the  right 
of  the  officer  to  take  rank  prior  to  the  time  when 
he  is  actually  commissioned  in  office.  To  be 
an  officer  he  must  pass  an  examination,  be 
nominated  to  and  confirmed  by  the  Senate, 
and  receive  a  commission;  but  he  takes  rank  as 
fi-om  the  date  he  became  eligible  to  promotion 
to  such  office.  His  right  to  the  rank  becomes 
absolute  when  he  is  actually  commissioned,  and 
before  that  time  he  was  merelv  eligible  to  it. 
(Toulon  V.  U.  S.,  51  Ct.  Cls.,  87,  94.) 


837 


Sec.  1663. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


The  rule  and  custom  of  promotion  in  rank 
from  tlie  date  the  ollicer  becomes  eligible  to 
promotion  tinda  recognition  in  many  statutes, 
of  which  the  act  of  June  22,  1874,  and  section 
1562,  Revised  Statutes,  referring  to  pay  be- 
tween the  date  of  commission  and  date  of  rank, 
are  examples.  The  date  of  an  officer's  rank  on 
promotion  is,  therefore,  that  on  which  he  be- 
comes eligible  to  promotion,  and  though  his 
actual  appointment  in  the  higher  grade  be  at  a 
later  time,  his  date  of  rank  relates  back  to  the 
period  stated.  (Toulon  v.  U.  S.,  51  Ct.  Cls., 
87,  93.) 

An  officer  takes  rank  in  his  grade  from  the 
time  when  the  law  entitles  him  to  do  so,  and  not 
necessarily  from  the  time  when  he  is  com- 
missioned. (Howell  V.  U.  S.,  25  Ct.  Cls.,  288; 
Toulon  V.  U.  S.,  51  Ct.  Cls.,  87,  93.) 

Section  1562,  Ile\ased  Statutes,  the  act  of 
June  22,  1874,  and  the  act  of  March  4,  1913, 
each  has  in  contemplation  the  custom  of  ad- 
vancement according  to  number  in  gi-ade,  and 
that  there  is  one  date  when  the  officer  is  actually 
commissioned  in  the  higher  grade,  and  a  pre- 
ceding date  upon  which  he  is  eligible  to  pro- 
motion thereto.  Referring,  as  it  does,  to  the 
matter  of  pay,  the  purpose  of  the  act  of  March  4, 
1913,  may  be  rendered  in  the  language  of  sec- 
tion 1562,  providing  that  "the  period  of  service 
of  the  party  in  the  giade  to  which  he  was  pro- 
moted shall,  in  reference  to  the  rate  of  his  pay, 
be  considered  to  have  commenced  from  the 
date  when  he  was  so  entitled  to  take  rank." 
(Toulon  V.  U.  S.,  51  Ct.  Cls.,  87,  97.) 

The  officer's  service  in  the  grade  to  which 
promoted  actually  begins  on  the  date  that  he  is 
actually  commissioned,  but  the  date  upon 
which  he  became  eligible  to  promotion  may  be 


denominated  the  date  of  his  constructive  sei"v- 
ice  in  such  grade.  The  act  of  March  4,  1913, 
refers  to  this  latter  date,  from  which  he  con- 
structively enters  the  higher  grade  and  takes 
rank  upon  being  actually  commissioned  at  a 
subsequent  date.  By  observing  the  distinction 
which  is  to  be  taken  under  the  act  of  1913  be- 
tween actual  and  constructive  service,  and  the 
fact  that  the  pay  and  allowances  therein  pro- 
vided for  relate  to  the  period  of  such  con- 
structive service  and  have  no  relation  to  the 
period  of  actual  ser\dce  following  the  date  of 
commission,  we  find  the  proper  application  for 
the  words '  'advanced  in  grade  or  rank,  pursuant 
to  law,"  as  used  in  said  act.  (Toulon  v.  U.  S., 
51  Ct.  Cls.,  87,  97.) 

A  lieutenant  in  the  Navy  received  additional 
pay  for  duty  as  aid  to  a  rear  admiral  from  July 
1,  1914,  to  August  20,  1914;  thereafter  he  was 
commissioned  as  a  lieutenant  commander,  with 
rank  as  such  from  July  1, 1914.  As  a  lieutenant 
commander  he  would  not  be  entitled  to  the 
additional  pay  allowed  aids  to  rear  admirals. 
Held,  that  the  Government  is  not  entitled  to 
recover  the  sum  allowed  him  for  additional  pay 
as  aid  during  the  period  in  question;  that  he 
was  in  fact  a  lieutenant  and  not  a  lieutenant 
commander  dicing  said  period ;  that  he  did  not 
become  a  lieutenant  commander  until  a  subse- 
quent date,  and  the  fact  that  his  commission 
retroactively  gave  him  rank  as  a  lieutenant 
commander  during  the  period  when  he  was  in 
fact  serving  as  a  lieutenant,  and  that  he  was 
entitled  to  pay  as  a  lieutenant  commander  from 
date  of  rank  pursuant  to  the  act  of  March  4, 
1913,  can  not  serve  to  make  him  a  lieutenant 
and  a  lieutenant  commander  in  fact  at  the 
same  time.     (Downes  v.  U.  S.,  52  Ct.  Cls.,  327.^ 


Sec.  1563.  [Advances  to  persons  on  distant  stations.]  The  President  of  the 
United  States  may  direct  such  advances,  as  he  may  deem  necessary  and  proper, 
to  such  persons  in  the  naval  service  as  may  be  employed  on  distant  stations 
where  the  discharge  of  the  pay  and  emoluments  to  which  they  are  entitled  can- 
not be  regularly  effected. —  (.31  Jan.,  1823,  c.  9,  s.  1,  v.  3,  p.  723.) 

Amendment  to  this  section  was  made  by  act  of 
March  4,  1917  (39  Stat.,  1181),  which  pro- 
vided that  "hereafter  advances  of  pay  not 
to  exceed  three  months'  pay  in  any  one 
case  may  be  made  to  officers  ordered  to 
and  from  sea  duty  and  to  and  from  shore 
duty  beyond  the  seas,  under  such  regula- 
tions as  the  Secretary  of  the  Navy  may 
prescribe." 

By  section  3648,  Revised  Statutes,  advances  of 
public  money  were  prohibited,  with  a 
saving  clause  with  respect  to  persons  em- 
ployed in  the  military  and  naval  service 
similar  to  the  provisions  of  section  1563, 
Revised  Statutes.  Other  exceptions  have 
been  made  by  specific  statutes,  as,  for 
example,  act  of  August  22,  1912  (37  Stat., 
32),  relating  to  partial  payments  to  con- 
tractors doing  work  for  the  Navy  Depart- 
ment; act  of  October  6,  1917,  section  5 
(40  Stat.,  383),  relating  to  contractors  for 
supplies  for  the  War  and  Navy  Depart- 
ments "during  the  period  of  the  existing 
emergency";  act  of  April  27,  1904  (33 
Stat.,  403),  relating  to  pm-chase  of  mileage 


books  and  transportation  tickets  for  officers 
and  other  persons  in  advance  of  travel  per- 
formed under  the  Navy  Department;  and 
various  laws  relating  to  pajiuent  for  sub- 
scriptions to  newspapers  and  periodicals, 
which  are  noted  under  section  192,   Re- 
vised Statutes. 
Validity  of  Navy  Regulations  relating  to 
advances. — Prior  to  the  amendment  of  March 
4,  1917,  noted  above,  it  was  held  by  the  Comp- 
troller of  the  Treasury  that  Navy  Regulations 
(art.  R  4458,  Navy  Regs.,  1913)  which  author- 
ized advances  in  pay  to  officers  ordered  to 
duty  at  sea  or  on  shore  beyond  the  continental 
limits  of  the  United  States  were  invalid  under 
modern  conditions  as  applied  to  officers  ordered 
to  duty  where  disbursing  officers  are  stationed 
who  could  regularly  make  payments  to  them 
of  amounts  due  for  pay  and  emoluments,  and 
that  such  regulations  should  be  amended  to 
meet  the  requirements  of  sections  1563  and 
3648,  Revised  Statutes.     (21  Comp.  Dec,  733.) 
After  said   decision   of  the   C'omptroller   was 
rendered,  it  was  held  by  the  Judge  Advocate 
General  of  the  Navy,  December  21,  1916  (file 


838 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1565. 


3980-1275),  that  the  Navy  Regulations  in 
question,  which  had  been  in  effect  for  many 
years  with  the  full  knowledge  and  acquiescence 
of  the  accounting  officers  and  vnth  the  implied 
sanction  of  Congi-ess,  should  be  obeyed  by  dis- 
bursing offxCers,  citing  the  Attorney  General's 
opinion  of  May  19,  1915  (noted  under  sec.  285, 
R.  S.),  and  other  opinions  of  the  Attorney  Gen- 
eral (see  2  Op.  Atty.  Gen..  204,  and  1  Op.  Atty. 
Gen.,  620,  relating  to  advances  to  diplomatic 


officers  going  abroad).  Certain  minor  modifi- 
cations were,  however,  made  in  article  4458 
(Naw  Regs.,  1913),  by  C.  N.  R.  7  of  September 
15,  1916,  and  C.  N.  R.  10  February  25,  1918. 
(See  art.  1803,  Navy  Regs.,  1920;  see  also  note 
to  sec.  236,  R.  S.,  respecting  jurisdiction  of  the 
accounting  officers  and  the  Secretary  of  the 
Navy;  and  note  to  sec.  161,  R.  S.,  respecting 
validity  of  Navy  Regulations.) 


Sec.  1564.  [Persons  acting  as  paymaster.]  Any  person  performing  the 
duties  of  pa}T2iaster,  acting  assistant  pa^Tnaster.  or  assistant  paymaster,  in  a 
ship  at  sea,  or  on  a  foreign  station,  or  on  the  Pacific  coast  of  the  United  States, 
by  appointment  of  the  senior  officer  present,  in  case  of  vacancy  of  such  office, 
in  accordance  with  the  provisions  of  section  thirteen  hundred  and  eighty-one, 
and  not  otherwise,  shall  be  entitled  to  receive  the  pay  of  such  grade  wliile  so 
acting.— (17  July,  1861,  c.  4,  s.  4,  v.  12,  p.  258.) 


See  section  1381,  Revised  Statutes,  and  note 
thereto. 

Not  entitled  to  dual  compensation. — 
Under  sections  1381  and  1564,  ReAdsed  Statutes, 
a  person  who  holds  no  office  under  the  Govern- 
ment may  be  given  an  acting  appointment  as 
paj-master,  and  in  that  case  the  sections  may 
operate  literally  to  entitle  the  appointee  to  the 
pay  of  the  grade  while  so  acting;  but  if  the 
appointee  holds  another  office  under  the  Gov- 
ernment, he  can  not  escape  from  the  prohibi- 
tions of  the  Re^'ised  Statutes,  sections  1763  and 
1765,  prohibiting  dual  compensation.  In  such 
case  it  is  the  liberal  custom  of  the  Treasury 
Department  to  allow  a  person  holding  more 
than  one  office  the  compensation  of  that  one 
which  is  larger.  (Webster  v.  U.  S.,  28  Ct.  Cls., 
25.) 

Status  of  acting  appointee. — A  person 
appointed  to  act  as  paymaster  in  a  ship  at  sea 
or  on  a  foreign  station,  under  the  Revised 
Statutes,  sections  1381  and  1564,  does  not 
therebv  become   an   officer.     A   naval   officer 


acting  as  pajTnaster  is  appointed  to  discharge 
the  duties  of  an  office  which  he  does  not  hold. 
(Webster  v.  U.  S.,  28  Ct.  Cls.,  25.) 

Pay  of  acting  appointee. — A  person  ap- 
pointed pajTQaster  to  fill  the  vacancy  of  a  de- 
ceased officer  on  a  ship  at  sea  or  in  a  foreign 
port  is  entitled  to  the  pay  of  the  office  but  not 
to  the  longevity  pay  of  the  officer  in  whose  stead 
he  is  acting.     (Webster  v.  U.  S.,  28  Ct.  Cls.,  25.) 

The  offices  of  engineer  and  paATuaster  in  the 
Navy  are  incompatible,  and  he  who  holds  them 
is  not  entitled  to  the  compensation  of  both,  but 
is  entitled  to  the  larger  of  the  two.  (Webster  v. 
IT.  S.,  28  Ct.  Cls.,  25.) 

Termination  of  acting  appointment. — 
The  continuance  of  an  appointment  as  "act- 
ing" pajTnaster,  under  Re\dsed  Statutes  1381 
and  1564,  does  not  depend  upon  a  discharge 
or  revocation;  it  terminates  when  another  pay- 
master reports  for  duty ;  and  the  pay  continxies  at 
farthest  only  to  the  time  when  the  acting  offi- 
cer's accounts  are  made  up.  (Ostrander  v. 
U.  S.,  22  Ct.  Cls.,  218.) 


Sec.   1665.  [Chiefs  of  Bureau.     Superseded.] 


This  section  provided  as  follo"ws: 

"Sec.  1565.  The  pay  of  chiefs  of  Bureau  in 
the  Navy  Department  shall  be  the  highest  pay 
of  the  grade  to  which  they  belong,  but  not  below 
that  of  commodore." — (3  Mar.,  1871,  c.  117,  s. 
12,  V.  16,  p.  537.) 

It  was  superseded  by  act  of  March  3,  1899, 
section  7  (30  Stat.,  1005),  which  pro\'ided  that 
the  pay  of  chiefs  of  bureaus  shall  be  the  highest 
pay  of  the  grade  to  which  they  belong,  not  below 
that  of  commodore. 

Other  modifications  of  the  law  as  to  pay  of 
chiefs  of  bureaus  were  made  bv  act  of  May  13, 
1908  (35  Stat.,  128),  which  pro\dded  that  their 
pay  and  allowances  *  'shall  be  the  highest  pay 
of  the  grade  to  which  they  belong,  and  not 
below  that  of  rear  admiral  of  the  lower  nine"; 
by  o.ct  of  June  24,  1910  (36  Stat.,  607),  which 
pro\T.ded  that  their  pay  and  allowances  should 
be  the  highest  shore  duty  pay  and  allowances 
of  rear  admirals  of  the  lower  nine;  by  act  of 
August  22,  1912  (37  Stat.,  328),  which  repealed 
the  provisions  of  the  act  of  June  24,  1910,  with- 
out making  any  further  pro\"ision  on  the  sub- 
ject— the  effect  of  which  was  to  re^dve  the  act 


of  Mav  13,  1908  (Comp.  Dec,  June  22,  1916 
file  26254-2045);  and  by  act  of  July  1,  1918 
(40  Stat.,  717 \  which  provided  that  chiefs  of 
bureaus  in  the  Navy  Department  shall  receive 
the  same  pay  and  allowances  as  chiefs  of  bu- 
reaus in  the  War  Department. 

Chief  of  bureau  dismissed  by  sentence 
of  court-martial. — ^The  chief  of  a  bureau  in 
the  Nav}^  Department  tried  by  court-martial 
and  sentenced  to  be  dismissed  fi'om  the  posi- 
tion of  chief  of  bureau  and  to  be  suspended 
from  rank  and  duty  in  his  pennanent  grade, 
on  furlough  pay,  for  one  year,  which  sentence 
was  duly  confirmed  by  the  President,  is  not  en- 
titled to  recover  the  emoliunents  of  a  chief  of 
bureau  for  the  remainder  of  the  fouf-year 
term  for  which  he  was  appointed.  A  naval 
court-martial  has  jurisdiction  to  sentence  chiefs 
of  bureaus  to  be  dismissed  from  their  office  as 
such.     (Smith  v.  U.  S.,  26  Ct.  Cls.,  143.) 

For  other  cases  relating  to  the  pay  and 
allowances  of  chiefs  of  bureaus,  see  note  to  8ec- 
tion  421,  Re^'ised  Statutes;  see  also  note  to  sec- 
tion 1556,  Revised  Statut-es. 


839 


Sec.  1566. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Sec.  1566.  [Mileage  and  traveling  expenses.     Superseded.] 


This  section  pro\'ided  as  follows: 

"Sec.  15GG.  An  allowance  of  ten  cents  a 
mile  may  be  made  lO  odlcers  in  the  naval 
ser\'ice,  and  store-keepers  on  foreign  stations 
for  tiavelinp  expenses  when  under  orders.  And 
an  allowance  may  be  made  to  ofiicers  tra^•eling 
in  foreign  countries  under  ordere,  for  expenses 
of  transportation  of  baggage  necessarily  in- 
curred. And  no  oITicer  shall  be  paid  mileage, 
except  for  travel  actually  performed  at  his  own 
expense  and  in  obedience  to  orders." — (3  Mar., 
1835,  0.  27,  s.  2,  v.  4,  p.  757.  17  July,  1862,  c. 
200,  s.  7,  V.  12,  p.  595.  15  July,  1870,  c.  295, 
s.  4,  V.  16,  p.  332.  16  June,  1874,  c.  285,  v.  18, 
p.  72.     3  Mar.,  1875,  c.  133,  v.  18,  p.  452.) 

Is  was  superseded  by  later  enactments  set 
forth  below. 

By  act  of  June  16,  1874  (18  Stat.,  72\  it  was 
provided  "that  only  actual  traveling  expenses 
shall  be  allowed  to  any  person  holding  employ- 
ment or  appointment  under  the  United  States, 
and  all  allowances  for  mileage  and  transporta- 
tion in  excess  of  the  amount  actually  paid  are 
hereby  declared  illegal;  and  no  credit  shall  be 
allowed  to  any  of  the  disbursing  officera  of  the 
United  States  for  pajonent  or  allowances  in 
^'iolation  of  this  pro\T.sion." 

By  act  of  January  18,  1875  (18  Stat.,  297),  it 
was  pro\dded  "that  no  allowance  shall  be  made 
in  the  settlement  of  any  account  for  traveling 
expenses  unless  the  same  be  incurred  on  the 
order  of  the  Secretaiy  of  the  Navy,  or  the  al- 
lowance be  approved  by  him." 

By  act  of  March  3,  1875  (18  Stat.,  452),  it  was 
provided  "that  hereafter  only  actual  traveling 
expenses  shall  be  allowed  to  any  person  holding 
emploj-ment  or  appointment  under  the  United 
States,  except  marshals,  district  attorneys,  and 
clerks  of  the  courts  of  the  United  States  and 
their  deputies;  and  all  allowances  for  mileages 
and  transportation  in  excess  of  the  amount 
actually  paid,  except  as  above  excepted,  are 
hereby  declared  illegal;  and  no  credit  shall  be 
allowed  to  any  of  the  disbursing  officers  of  the 
United  States  for  pa\Tnent  or  allowances  in 
violation  of  this  pro^^sion." 

By  act  of  June  30,  1876  (19  Stat.,  65),  it  was 
pro\dded  that  so  much  of  the  act  of  June  16, 
1874,  above  quoted,  "as  pro\'ides  that  only 
actual  traveling  expenses  shall  be  allowed  to 
any  person  holding  employment  or  appointment 
under  the  United  States  while  engaged  on 
public  business,  as  is  applicable  to  officers  of 
the  Navy  so  engaged,  is  hereby  repealed;  and 
the  sum  of  eight  cents  per  mile  shall  be  allowed 
Buch  officers  while  so  engaged,  in  lieu  of  their 
actual  expenses." 

By  act  of  August  5,  1882  (22  Stat.,  286),  it 
was  provided  that  "ofiicers  of  the  Navy  travel- 
ing abroad  under  orders  hereafter  issued  shall 
travoi  ])y  the  most  direct  route,  the  occasion 
and  necessity  for  such  order  to  be  certified 
by  the  officer  issuing  the  same;  and  shall  re- 
ceive, in  lieu  of  the  mileage  now  allowed  by 
law,  only  their  actual  and  reasonable  expenses, 
certified  under  their  own  signatures  and  ap- 
proved by  the  Secretary  of  the  Navv." 

By  act  of  July  7,  189S  (30  Stat.,  708),  it  was 
pro\aded  "that  nereafter  the  accounting  officers 
of  the  Treasury  shall  not  receive,  examine,  con- 


sider, or  allow  any  claim  against  the  United 
States  for  difference  between  mileage  and  ac- 
tual expenses  which  has  been  or  maj^  be  pre- 
sented by  officers  of  the  Navy,  their  heirs  or 
legal  representatives,  under  the  decisions  of  the 
Supreme  Court  which  have  heretofore  been 
adopted  as  a  basis  for  the  allowance  of  such 
claims,  which  accrued  prior  to  July  first, 
eighteen  hundred  and  seventy-four."  (See  de- 
cisions of  Supreme  Court  noted  below,  under 
"Act  of  1876  allowed  mileage  for  all  travel  by 
officers  of  the  Navy.") 

By  act  of  March  3,  1899,  section  13  (30  Stat., 
1007),  officera  of  the  line  of  the  Navy,  and  of 
the  i^ledical  and  Pay  Corps,  were  given  the 
same  allowances,  except  forage,  as  officers  of 
the  corresponding  rank  in  the  Army. 

By  act  of  June  7,  1900  (31  Stat.,"685),  it  was 
provided  "that  in  lieu  of  traveling  expenses 
arid  all  allowances  whatsoever  connected  there- 
\vith,  including  transportation  of  baggage,  offi- 
cers of  the  Navy  traveling  from  point  to  point 
within  the  United  States  under  orders  shall 
hereafter  receive  mileage  at  the  rate  of  eight 
cents  per  mile,  distance  to  be  computed  by  the 
shortest  usually  traveled  route;  but  in  cases 
where  orders  are  given  for  travel  to  be  per- 
fomied  repeatedly  between  two  or  more  places 
in  the  same  vicinity  the  Secretary  of  the  Navy 
may,  in  his  discretion,  direct  that  actual  and 
necessary  expenses  only  he  allowed.  Actual 
expenses  only  shall  be  paid  for  travel  under 
orders  outside  the  limits  of  the  United  States 
in  North  America." 

By  act  of  March  3,  1901  (31  Stat.,  1029),  the 
foregoing  provisions  of  the  act  of  June  7,  1900, 
were  repeated  in  identical  language. 

By  act  of  July  1,  1902  (32  Sut.,  663),  it  Was 
provided  "that  hereafter  in  cases  where  orders 
are  given  to  officers  of  the  Navy  or  Marine  C'orps 
for  travel  to  be  performed  repeatedly  between 
two  or  more  places  in  such  -^dcinity  as  in  the 
(Uscretion  of  the  Secretary  of  the  Navy  is  ap- 
propriate, he  may  direct  that  actual  and  neces- 
sary expenses  onlv  be  allowed." 

By  act  of  April  27,  1904  (33  Stat.,  403),  it  was 
pro\dded  that  "the  Secretary  of  the  Navy  is 
hereby  authorized  to  continue  to  purchase  such 
mileage  books,  commutation  tickets,  and  other 
similar  transportation  tickets  as  may  in  his 
discretion  seem  necessary,  and  to  furnish  same 
to  officei's  and  others  ordered  to  perfonn  travel 
on  otlicial  business;  and  pajTueut  for  such 
transportation  tickets  upon  their  receipt,  in 
accordance  with  commercial  usage,  or  prior  to 
the  actual  performance  of  the  travel  involved, 
shall  not  be  regarded  as  an  advance  of  pul:)lic 
money  within  the  meaning  of  section  thirty- 
six  hundred  and  forty-eight  of  the  Revised 
Statutes." 

By  act  of  February  26,  1907,  section  6  (34 
Stat. ,  997) ,  provision  was  made  for  travel  of  offi- 
cers detailed  to  the  Light-House  establishment. 

By  act  of  March  3,  1909  (35  Stat.,  774\  it  was 
provdded  "that  hereafter  the  settlement  of  all 
traveling  expense  claims,  where  the  pajTiient  of 
such  is  authorized  by  existing  law,  and  the 
determination  of  distances  and  of  what  consti- 
tutes the  shortest  usually  traveled  route  in  the 
meaning  of  laws  relating  to  traveling  allowances. 


840 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1566. 


shall  accord  to  such  rules  as  the  Secretary  of  the 
Navy  may  prescribe." 

By  act  of  June  30,  1914  (38  Stat.,  393),  it  was 
provided  "that  hereafter  no  mileage  shall  be 
paid  to  any  officer  where  Government  trans- 
portation is  furnished  such  officer." 

By  act  of  May  18,  1920,  section  12  (41  Stat., 
604),  provision  was  made  for  transportation 
being  furnished  by  the  Government  to  the  wife 
and  dependent  child  or  children  of  officers  and 
certain  enlisted  men  of  the  Navy  and  Marine 
Corps  upon  permanent  change  of  station  by  the 
latter.  The  same  act  and  section  further  pro- 
vided that  "the  personnel  of  the  Navy  shall 
have  the  benefit  of  all  existing  laws  applying 
to  the  Army  and  the  Marine  Corps  for  the  trans- 
portation of  household  effects."  (See  also 
statutes  noted  under  sec.  1135,  R.  S.,  as  to 
transportation  in  AiTny  transports.) 

By  clauses  in  the  annual  naval  appropriation 
acts,  under  "Bureau  of  Navigation,"  officers 
of  the  Navy  on  duty  with  traveling  recruiting 
parties  are  entitled  to  "actual  and  necessary 
expenses  in  lieu  of  mileage."  (See,  e.  g.,  act 
June  4,  1920,41  Stat.,  815.) 

By  clauses  in  the  annual  na\'al  appropriation 
acts,  under  "Pay,  miscellaneous,"  provision  is 
made  "for  mileage,  at  5  cents  per  mile,  to  mid- 
shipmen entering  the  Naval  Academy  while 
proceecUng  from  their  homes  to  the  Naval 
Academy  for  examination  and  appointment  as 
midshipmen";  for  "actual  traveling  expenses 
of  female  nurses";  and  for  "mileage  to  officers 
of  the  Navy  and  Na^■al  Reserve  Force  while 
traveling  under  orders  in  the  United  States, 
and  for  actual  personal  expenses  of  officers  of  the 
Navy  and  Naval  Reserve  Force  while  traveling 
abroad  under  orders."  (See,  e.  g.,  act  June  4, 
1920,  41  Stat.,  812.) 

As  to  travel  allowance,  Naval  Reserve  Force, 
see  note  to  section  1556,  Revised  Statutes, 
under  "Naval  Reserve  Force." 

As  to  ti'ansportation  and  necessary  expenses 
of  members  of  the  Nurse  Corps  (Female),  when 
traveling  under  orders,  see  note  to  section  1556, 
Revised  Statutes,  under  "Dental  Corps  and 
Nurse  Corps  (Female)." 

Section  1566  repealed  and  later  revived 
with  modifications. — The  provisions  of  sec- 
tion 1566,  Revised  Statutes,  allowing  ten  cents 
a  mile  to  naval  officers  ' '  for  traveling  expenses 
when  under  orders,"  were  repealed  by  the 
act  of  June  16,  1874  (18  Stat.,  372),  but  became 
in  force,  though  modified,  by  reason  of  the  act 
of  June  30,  1876  (19  Stat.,  65),  which  repeals  so 
much  of  the  act  of  June  16,  1874,  "as  is  appli- 
cable to  officers  of  the  Nav^,"  and  allows  to 
them  eight  cents  per  mile  in  lieu  of  their  actual 
expenses.     (Steele  v.  U.  S.,  30  Ct.  Cls.,  8.) 

Section  1566  never  actually  went  into  effect, 
so  far  as  the  question  of  mileage  is  concerned, 
as  by  the  act  of  June  16,  1874,  it  was  proAdded 
that  "only  actual  traveling  expenses  shall  be 
allowed  to  any  person  holding  employment  or 
appointment  under  the  United  States,"  etc. 
This  act  took  effect  in  such  a  way  as  to  operate 
to  repeal  the  section  referred  to,  so  far  as  this 
subject  was  concerned,  before  the  same  ac- 
tually had  effect.  (15  Op.  Atty.  Gen.,  309, 
citing  sec.  5601,  R.  S.,  as  to  the  effect  of  laws 
passed  after  Dec.  1,  1873.) 


The  act  of  June  16,  1874,  making  appropria- 
tions for  the  support  of  the  Army  was  in  its 
terms  applicable  to  every  person  holding  em- 
ployment or  appointment  under  the  United 
States,  and  its  obAdous  purpose  was  to  abolish  all 
payments  for  traveling  expenses  in  which  a 
specific  allowance  per  mile  was  made  by  law, 
and  to  establish  the  more  equitable  principle 
of  paying  the  actual  expenses  of  persons  travel- 
ing in  the  ser\dce  of  the  Government.  (U.  S. 
I'.  Mouat,  124  U.  S.,  303.) 

Act  of  1874  repealed  only  in  part  by  act 
of  1876.— The  act  of  June  16,  1874,  wliich  pro- 
\'ided  that  only  actual  traveling  expenses  shall 
be  allowed  to  any  person  "holding  employment 
or  appointment  under  the  United  States,  "  ap- 
plied to  all  persons  holding  "employment  or 
appointment"  under  the  Government  of  the 
United  States,  including  officers  of  the  Navy. 
The  later  act  of  June  30,  1876,  which  excepted 
"officers  of  the  Na\-y"  from  the  application  of 
the  former  act,  did  not  repeal  the  whole  of  that 
statute,  even  as  applicable  to  the  entire  Navy, 
but  selected  a  certain  class  of  persons  in  the 
Navy  to  whom  it  should  no  longer  apply.  This 
class  of  persons  is  designated  as  "officers  of  the 
NaA-y. "  No  other  person  holding  an  employ- 
mentor  appointment  under  the  United  States, 
although  in  the  Navy,  was  thus  relieved  from 
the  effect  of  the  act  of  1874.  The  words  "offi- 
cers of  the  Navy,' '  in  the  act  of  1876,  must  be 
confined  to  those  who  are,  properly  speaking, 
officers  of  the  NaA-y,  that  is,  to  those  who  are 
appointed  by  the  President,  or  by  a  court  of 
law,  or  by  the  head  of  a  department,  that  is,  by  a 
member  of  the  President's  cabinet.  (U.  S.  v. 
Mouat,  124  U.  S.,  303.  See  below,  as  to  per- 
sons held  not  officers  of  the  Na\y  under  mileage 
laws. ) 

Act  of  March  3,  1899,  extended  Army 
mileage  laws  to  Navy. — Mleage  is  an  allow- 
ance, and  officers  of  the  Navy  coming  within 
the  operation  of  section  13  of  the  NaA^  per- 
sonnel act  of  March  3,  1899  (30  Stat.,  1007),  be- 
came entitled  only  to  the  same  rates  of  mileage 
as  pro\dded  by  law  or  regulations  for  officers  of 
the  Army ;  i.  e.,  to  a  maximum  of  7  cents  a  mile. 
(7  Comp.  Dec,  117.  See  later  laws  noted 
above.) 

Section  1566  repealed  only  in  part  by 
act  of  March  3,  1901.— The  act  of  March  3, 
1901  (31  Stat.,  1029),  repeals  section  1566,  Re- 
\'ised  Statutes,  only  as  to  the  amount  per  mile 
allowed  to  officers  for  mileage,  but  does  not  re- 
peal the  proAision  in  section  1566  that  "no  offi- 
cer shall  be  paid  mileage  except  for  travel  actu- 
ally performed  at  his  own  expenses  and  in  obe- 
dience to  orders."  (Katzer  v.  U.  S.,  52  Ct. 
Cls.,  32.) 

Act  of  1876  allowed  mileage  for  aU 
travel  by  officers  of  the  Navy. — The  act  of 
June  30,  1876  (19  Stat.,  65),  estabhshes  one  rule, 
mileage  for  all  travel  by  officers  of  the  Navy, 
whether  on  land  or  sea.  The  Government  can 
not  by  buying  for  a  naval  officer  traveling  under 
orders  a  railroad  or  steamship  ticket,  reinstate 
the  "actual  expense"  rule  repealed  by  the  said 
act.     (Temple  v.  U.  S.,  14  Ct.  Cls.,  377.) 

An  officer  of  the  Na\^  who  wliile  engaged  in 
public  business  in  1878",  traveled  under  orders, 
partly  by  land  and  partly  by  sea,  the  traAel  by 


841 


Sec.  1566. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


sea  not  being  in  a  public  vessel,  was,  under 
the  act  of  June  30,  1876  ( 19  .Stat.,  65),  entitled 
to  mileage  for  the  wholvj  distance  traveled .  The 
accounting  officers  of  the  Treasury,  in  holding 
that  for  one  class  of  travel  he  should  have  mile- 
age, and  for  the  other  his  actual  expenses,  were 
attempting  to  make  the  law  and  not  to  construe 
it.  (U.  s.  V.  Temple,  105  U.  S.,  97.  In  this 
case  the  accounting  officers  allowed  the  officer 
mileage  for  the  travel  by  land,  and  actual  ex- 
penses for  his  travel  by  sea.  The  court  said: 
"When  this  travel  was  performed  there  was  not 
a  line  on  the  statute  books  of  the  United  States 
which  made  any  provision  whatever,  under 
any  circumstances,  for  allowing  officers  of  the 
Navy,  when  engaged  on  the  public  business, 
their  actual  expenses  of  travel.  The  only  law 
ever  enacted  which  made  such  provision  had 
been  expressly  repealed  by  the  act  on  which 
the  appellee  based  his  claim  for  mileage.  ") 

The  act  of  March  3, 1835  (4  Stat.,  755),  which 
pro\dded  that  10  cents  a  mile  should  be  allowed 
to  naval  officers  for  traveling  expenses  while 
traveling  under  orders,  made  no  distinction 
between  travel  in  and  travel  out  of  the  countr}^ 
The  construction  put  upon  it  by  the  Treasury 
Department  to  the  effect  that  mileage  should  be 
paid  for  traveling  expenses  within  the  United 
States,  but  that  the  usual  and  necessary  pas- 
sage money  actually  paid  by  officers  returning 
from  foreign  service  under  orders  or  on  sick 
leave,  when  they  could  not  return  in  a  public 
vessel,  would  be  paid  as  theretofore,  as  well  as 
the  like  expenses  of  officers  going  out,  which 
construction  was  accepted  by  the  Navy  Depart- 
ment and  embodied  in  the  Navy  Regulations, 
can  not  affect  the  plain  provisions  of  the  act. 
Under  both  the  act  of  1835  and  the  act  of  June 
30,  1876,  all  traveling  expenses  were  to  be  paid 
by  mileage,  and  in  neither  act  is  there  any  in- 
dication of  an  intention  of  Congress  to  make  a 
distinction  between  travel  by  sea  or  on  land  in 
foreign  countries  or  in  the  United  States.  (U. 
S.  v.  Graham,  110  U.S.,  219.) 

Prior  to  the  decisions  of  the  Supreme  Covu-t 
noted  above,  the  Attorney  General  had  ren- 
dered an  opinion  to  the  following  effect:  It 
was  known  when  the  act  of  June  30,  1876,  was 
passed  that  the  construction  which  for  years 
had  been  given  by  the  Navy  Department  to  the 
law  of  March  3,  1835,  providing  that  mileage 
should  be  paid  to  officers  of  the  Navy,  limited 
the  allowance  of  the  same  to  those  traveling 
within  the  lifnits  of  the  United  States.  When, 
therefore,  Congress  reenacted  the  law  sub- 
stantially in  the  same  terms,  and  made  no 
clear  pro\'ision  that  the  mileage  should  be  paid 
to  those  officers  who  travel  by  sea  and  out  of  the 
limits  of  the  United  States,  it  must  be  deemed 
that  in  thus  reenacting  it  has  accepted  the 
construction  theretofore  put  upon  a  similar  act 
by  the  Na\y  Department.  Accordingly,  held, 
that  under  the  act  of  1876,  mileage  is  to  be  al- 
lowed and  paid  to  naval  officers  only  when 
traveling  within  the  United  States,  in  lieu  of 
their  actual  expenses,  and  that  when  traveling 
without  the  United  States  they  are  to  receive 
their  actual  expenses  alone.  (15  Op.  Atty. 
Gen.,  309;  the  Supreme  Court  decisions  noted 
above  overruled  this  opinion  of  the  Attorney 
General.) 


See  act  of  July  7,  1898,  noted  above,  which 
prohibited  the  accounting  officers  from  allowing 
claims  for  differences  between  mileage  and 
actual  expenses,  under  decisions  of  the  Su- 
preme Court,  where  such  claims  accrued  prior 
to  July  1,  1874. 

Actual  expenses  for  travel  abroad  under 
act  of  1882. — An  officer  of  the  Navy  author- 
ized to  appear  before  a  court  of  inquiry  on  a 
foreign  station,  and  ordered  "on  the  conclusion 
of  the  investigation  to  return  to  Yokohama  and 
there  to  remain  until  you  receive  further  orders 
from  the  department,"  is  "traveling  abroad 
under  orders  "  within  the  meaning  of  the  act  of 
August  5,  1882  (22  Stat.,  286),  allowing  actual 
expenses  for  such  travel.  (Selfridge  v.  U.  S., 
28Ct.  Cls.,440.) 

Traveling  does  not  intend  endless  movement. 
A  traveler  is  one  who  journeys  to  foreign  lands; 
one  who  \asits  strange  countries  and  people;  an 
officer,  although  not  in  movement  while  attend- 
ing a  court  of  inquiry  in  a  foreign  country,  or 
during  a  few  days'  detention  waiting  for  a  con- 
necting steamer,  or  during  a  few  days  spent  in  a 
foreign  city  on  his  way  out,  nevertheless  was 
properly  entitled  to  his  expenses  at  such  places. 
During  his  stops  at  these  places  his  status  was 
that  of  "traveling  abroad  under  orders."  He 
was  in  the  condition  of  a  traveler  from  the  time 
he  left  the  United  States  until  he  returned 
home.  (Selfridge  v.  U.  S.,  28  Ct.  Cls.,  440; 
see  also  10  Comp.  Dec,  589;  12  Comp.  Dec, 
358;  25  Comp.  Dec,  555;  compare  25  Comp. 
Dec,  485.) 

The  question  whether  traA-el  is  abroad  or 
within  the  United  States  should  be  determined 
by  the  termini  of  the  journey,  rather  than  by 
the  route  actually  taken.  A  naval  officer 
traveling  under  orders  from  San  Francisco  to 
New  York,  by  way  of  the  Isthmus  of  Panama, 
is  to  be  considered,  under  the  statutes  appli- 
cable to  the  case,  as  traveling  under  orders  in 
the  United  States  and  as  entitled  to  eight  cents 
per  mile,  measured  by  the  nearest  traveled 
route.     (U.  S.  v.  Hutchins,  151  U.  S.,  542.) 

An  officer  is  to  be  understood  as  traveling 
abroad  when  he  goes  to  a  foreign  port  or  place 
under  orders  to  proceed  to  that  place,  or  from 
one  foreign  port  to  another.  (U.  S.  v.  Hutch- 
ins, 151  U.  S.,  542.) 

Why  officers  are  allowed  by  Congress  mileage 
in  one  case  and  not  in  the  other  is  not  altogether 
clear,  but  probably  the  reason  is  that  travel  at 
home  is  ordinarily  for  such  short  distances  and 
the  disbursements  therefor  are  generally  for 
such  petty  amounts  that  to  save  the  necessity 
of  the  officer  keeping  a  minute  account  of  each 
outlay,  and  the  accounting  officers  passing 
upon  the  reasonableness  of  every  small  item,  it 
was  thought  better  to  allow  the  officer  a  fixed 
mileage  by  the  shortest  traveled  route,  leaving 
him  at  liberty  under  certain  circumstances, 
and  where  his  orders  are  not  to  proceed  by  a 

g articular  route,  to  choose  his  own.  (U.  S.  v. 
[utchins,  151  U.  S.,  542.) 
Actual  expenses  for  repeated  travel. — 
The  act  of  June  7,  1900  (31  Stat.,  685),  author- 
izing actual  expenses  for  repeated  travel  be- 
tween places  in  the  same  Adciuity,  invests  the 
Secretary  of  the  Na\'y  with  discretion  to  deter- 
mine what  places  are  "in  the  same  vicinity;" 


842 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1566. 


but  the  Secretary  can  exercise  this  discretion 
only  where  the  travel  must  be  performed 
"repeatedly  between  two  or  more  places." 
Wliere  the  travel  between  two  places  was  not 
repeated,  the  officer  is  entitled  to  mileage  and 
not  actual  expenses.  (Willits  v.  U.  S.,  38  Ct. 
Cls.,  534.) 

The  word  "vicinity"  in  the  statute  has  no 
fixed  and  definite  meaning,  and  to  determine 
what  is  or  is  not  a  vicinity  in  these  days  of 
express  trains  and  trolley  cars  must  be  a  matter 
of  discretion,  and  this  discretion  is  lodged  in  the 
Secretary,  whose  decision  is  not  subject  to 
review  by  the  courts.  (Willits  v.  U.  S.,  38 
Ct.  Cls.,  534.) 

An  order  of  the  Secretary  of  the  Navy  which 
does  not  relieve  an  officer  from  duty  at  a  navy 
yard,  but  imposes  upon  him  additional  duty  at 
another,  and  requires  his  personal  attention  at 
both,  entitles  him  to  mileage  for  travel  between 
the  two  and  invests  him  with  discretion  to  de- 
termine when  his  presence  is  necessary  at 
either;  such  travel  is  travel  "under  orders." 
(Steele  u.  U.  S.,  30  Ct.  Cls.,  8.) 

Mileage  not  allowed  when  Government 
transportation  furnished. — By  "Govern- 
ment transportation, ' '  as  used  in  the  act  of  June 
30,  1914  (38  Stat.,  393),  is  understood  transpor- 
tation on  vessels  owned  or  employed  by  the 
Government  or  by  conveyances  on  land  so 
owned  or  employed,  but  not  transportation 
furnished  on  transportation  request.  Accord- 
ingly, held,  that  an  officer  of  the  Navy,  travel- 
ing under  proper  orders  in  the  United  States, 
and  furnished  transportation  on  Government 
requests,  is  entitled  to  be  paid  mileage  less 
cost  of  transportation  furnished  and  any  other 
expense  incurred  by  the  Government.  (21 
Comp.  Dec,  690.) 

Where,  under  proper  orders,  a  naval  officer 
proceeded  from  his  regular  station  to  a  certain 
point,  took  charge  of  a  motor  launch,  and  re- 
turned thereon  to  such  regular  station,  said 
launch  not  being  pro\dded  with  sleeping 
quarters  or  mess  arrangements,  he  is  not  en- 
titled, for  the  return  journey,  either  to  reim- 
bursement of  actual  expenses  incurred  for  meals 
and  lodging  en  route,  or  to  mileage  allowance, 
since  he  was  not  performing  repeated  travel, 
and  was  furnished  with  GoA'ernment  transpor- 
tation within  the  meaning  of  the  act  of  June 
30,  1914.     (23  Comp.  Dec,  368.) 

The  act  of  June  30,  1914,  was  passed  after  the 
decision  of  the  comptroller  (20  Comp.  Dec, 
741),  which  held  that  a  right  to  mileage  was  not 
lost  because  an  officer  traveled  on  a  Govern- 
ment conveyance.     (23  Comp.  Dec,  368,  370.) 

Officer  performing  travel  while  under 
suspension. — An  officer  of  the  Na'vy  ordered 
to  travel  to  his  home  in  the  United  States 
during  his  suspension  from  duty  by  sentence 
of  a  general  court-martial  is  entitled  to  reim- 
bursement for  his  actual  necessary  expenses 
incurred  in  traveling  from  Manilla  to  San  Fran- 
cisco under  said  orders.     (14  Comp.  Dec,  684.) 

Officer  performing  travel  in  answer  to  a 
subpoena. — An  officer  of  the  Navy  is  entitled 
only  to  actual  and  necessary  expenses  for  travel 
performed  in  attending  as  a  witness  before  a 
United  States  grand  jury,  in  response  to  a  sub- 
poena, notwithstanding  that  he  may  have  been 
ordered  by  his  superior  officer  to  perform  the 


travel  in  answer  to  said  subpoena.     (4  Comp. 
Dec,  146.) 

Officer  ordered  to  attend  funeral  of 
another  officer. — See  11  Comp.  Dec,  181, 
noted  under  section  1587,  Re\ised  Statutes. 

Officer  traveling  to  and  from  leave  of 
absence. — An  officer  of  the  Na\'y  ordered  to 
proceed  to  his  home  and  granted  a  leave  of 
absence,  and  at  the  expiration  of  such  leave  to 
return  to  his  station,  is  traveling  for  his  own 
pleasure  and  benefit  and  not  on  public  business 
and  he  is  not  entitled  to  mileage.  (16  Comp. 
Dec,  611.) 

It  matters  not  that  the  officer's  leave  was  not 
to  commence  until  he  arrived  at  his  home,  and 
that  the  travel  to  his  home  was  performed  be- 
fore the  leave  began;  such  travel  was  in  no 
sense  upon  public  business,  and  did  not  entitle 
the  officer  to  mileage.     (17  Comp.  Dec,  252.) 

By  act  of  March  4,  1911  (36  Stat.,  1303),  it 
was  provided  that  "the  Auditor  of  the  Navy 
Department  is  directed  to  allow  mileage  to 
officers  of  the  Navy  who  have  heretofore  been 
disallowed  same  by  reason  of  a  decision  of  the 
Assistant  Comptroller  of  the  Treasury  dated 
March  seventeenth,  nineteen  hundred  and  ten; 
and  to  pay  said  allowances  out  of  any  balances 
of  the  appropriations  for  pay,  miscellaneous,  of 
the  Na\^\"  (The  decision  referred  to  was 
published  in  16  Comp.  Dec,  611,  noted  above.) 

If  an  officer  in  making  a  journey  to  his  home 
does  so  for  his  o^vn  pleasure  or  on  private  busi- 
ness, he  is  not  entitled  to  mileage  (citing  Perri- 
mond  V.  U.  S.,  19  Ct.  Cls.,  509;  Barker  v.  U.  S., 
19  Ct.  Cls.,  291);  but  where  an  officer  is  dis- 
charged from  treatment  in  a  hospital,  after  a 
serious  illness,  and  ordered  by  the  proper 
authorities  to  proceed  to  his  home  and  upon  his 
arriA'al  there  granted  three  months'  sick  leave 
for  the  purpose  of  allowing  him  to  regain  his 
health,  the  travel  is  on  public  business  within 
the  meaning  of  the  law  and  he  is  entitled  to  ■ 
mileage  for  travel  in  the  United  States  and 
actual  expenses  for  travel  out  of  the  United 
States,  in  accordance  with  the  act  of  March  3, 
1901  (31  Stat.,  1029).  (McCauley  v.  U.  S.,  50 
Ct.  Cls.,  105.) 

In  Henderson's  case,  decided  by  the  Comp- 
troller of  the  Treasury  October  18,  1910  (noted 
in  McCauley  v.  U.  S.,  50  Ct.  Cls.,  105,  112),  it 
was  said:  "Whether  a  leave  of  absence  is 
granted  on  account  of  sickness  or  for  other  cause, 
the  officer's  status  is  the  same  so  far  as  the 
matter  under  consideration  is  concerned 
[mileage  to  his  home].  While  on  'sick  leave' 
or  'ordinary  leave'  he  is  not  on  duty,  nor  is  he 
subject  to  the  orders  of  superior  authority. 
His  time  is  placed  at  his  own  disposal,  as  he 
may  see  fit,  and  he  can  go  and  come  as  he 
chooses."  (But  see  McCauley  v.  U.  S.,  noted 
above.) 

The  acts  of  March  3,  1835  (4  Stat.,  755),  June 
16,  1874  (18  Stat.,  72),  and  June  30,  1876  (19 
Stat.,  65),  pro\ide  that  naval  officers  shall  be 
allowed  mileage  "for  traveling  expenses  when 
under  orders."  Where  an  officer  at  his  home 
on  leave  of  absence  is  ordered  to  a  new  station 
for  special  service,  and  then  back  to  his  home 
before  the  expiration  of  hia  leave,  it  is  travel 
"when  under  orders"  within  the  intent  of  the 
law  and  he  is  entitled  to  mileage  therefor. 
(Fitzpatrick  v.  U.  S.,  37  Ct.  Cls.,  332.) 


54641°— 22- 


-54 


843 


Sec.  1566. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


It  is  a  principle  long  recognized  and  estab- 
lislied  tliat  the  expiration  of  a  leave  of  absence 
finds  the  officer,  in  legal  contemplation,  at  his 
post;  i.  e.,  the  officer  must  actually  or  con- 
structively travel  from  and  return  to  his  post 
at  his  own  expense,  liut  travel  for  special 
ser\'ice  within  the  period  of  his  leave  of  absence, 
under  orders  which  leave  the  oflicer  no  dis- 
cretion as  to  route,  and  require  him  to  return 
to  his  home,  does  not  come  within  the  reason- 
able application  of  the  principle.  (Fitzpatrick 
t;.  U.  S.,37Ct.  Cls.,332.) 

The  ruling  of  the  accounting  officers  that 
where  an  officer  absent  on  leave  is  ordered  to 
a  new  station  he  is  entitled  to  mileage  from  the 
place  where  he  happens  to  be  to  the  new  station, 
"provided  the  distance  is  not  greater  than  that 
fi"om  the  old  station  to  the  new  station, "  but, 
conversely,  if  it  be  greater  that  he  is  entitled 
to  mileage  only  from  the  old  station  to  the  new 
station,  is  one  which  in  legal  effect  prescribes 
two  rules  of  law  where  Congress  has  enacted 
one,  viz,  that  naval  officers  shall  be  allowed 
mileage  "for  traveling  expenses  when  under 
orders"  within  the  United  States.  The  appli- 
cation of  the  statute  must  be  uniform  in  all 
cases.     (Fitzpatrick  v.  U.  S.,  37  Ct.  Cls.,  332.) 

An  officer  ordered  at  the  expiration  of  his 
leave  of  absence,  to  a  new  station  for  temporary 
service,  is  entitled  to  mileage  from  his  home  to 
the  station ;  but  he  is  not  entitled  to  mileage  for 
travel  fi-om  the  station  to  his  regiment,  if  the 
distance  be  less  than  fi-om  his  home  there. 
(Foster  v.  U.  S.,  43  Ct.  Cls.,  170.) 

WTiere  an  officer  was  detached  fi'om  his  ship 
and  granted  leave  of  absence,  without  any  di- 
rection for  any  further  duty,  the  expiration 
of  his  leave  left  him  at  his  home  until  further 
orders  might  be  received;  it  was  not  his  duty 
to  return  to  the  ship  or  station  from  which  he 
had  been  detached.  Orders  sent  him  at  his 
home,  directing  him  upon  expiration  of  his 
leave  to  proceed  to  the  vessel  and  station  from 
which  he  had  been  detached,  for  duty  on  such 
vessel,  entitled  him  to  mileage  for  travel  per- 
formed thereon,  notwithstanding  that  he  was 
thereby  ordered  back  to  the  same  station. 
(17  Comp.  Dec,  252.) 

Officer  traveling  on  vessel  during  trial 
trip. — An  officer  assisting  the  superintending 
naval  constructor  at  the  contractor's  works  was 
ordered  to  take  passage  on  a  vessel  on  her  trial 
trip,  and  was  put  to  no  expense  whatever  in  the 
performance  of  this  duty.  Hdd,  that  he  is  not 
entitled  to  mileage  under  the  act  of  June  7,  1900 
(31  Stat.,  685).  (Williams  v.  U.  S.,  47  Ct.  Cls., 
186.) 

The  theory  of  the  law  in  allowing  mileage  is 
to  provide  expenses  necessarily  incurred  in  the 
performance  of  travel  (citing  Smith  v.  U.  S., 
26  Ct.  Cls.,  568;  Galm  v.  U.  S.,  39  Ct.  Cls.,  67); 
8  cents  per  mile  of  travel  under  the  statute  is 
supposed  to  include  very  liberal  expenses.  In 
this  case  it  does  not  appear  that  the  officer  was 
charged  for  any  transportation,  or  for  that  matter 
anything  else  that  was  necessary  for  his  comfort 
and  convenience.  (Williams  v.  U.  S.,  47  Ct. 
Cls.,  186.) 

OflB.cer  traveling  home  upon  resigning 
from  the  Navy. — It  has  been  the  policy  of 
the  Government  to  restore  an  officer  to  his  resi- 
dence before  discharging  him  from  its  service; 


and  a  journey  for  that  purpose,  by  authority 
of  the  Secretary  of  the  Navy,  is  a  matter  of 
pul)lit;  obligation  "and  on  public  business," 
within  the  meaning  of  the  act  of  June  30,  1876 
(19  Stat.,  65).  Where  the  manifest  intent  of  an 
order  is  that  a  resignation  shall  take  effect  when 
the  officer,  traveling  from  a  foreign  station, 
arrives  in  the  port  of  New  York,  that  effect 
should  be  given  it.  (Allerdice  v.  U.  S.,  19  Ct. 
Cls.,  511.) 

Officers  exchanging  stations  at  their 
own  request. — An  Army  regulation,  pro^^ding 
that  "when  officers  are  permitted  to  exchange 
stations,  or  are  transferred  at  their  own  request 
from  one  regiment  or  company  to  another,  the 
public  will  not  be  put  to  the  expense  of  their 
transportation.  They  must  bear  it  them- 
selves," is  just  and  reasonable.  If  A,  at  one 
station,  and  B,  at  another,  desire  to  exchange 
stations  or  re.giments  or  companies  with  each 
other,  and  prefer  a  request  to  that  effect,  the 
regulation  assumes  that  the  commanding  officer 
may  in  his  discretion  grant  it;  but  as  no  public 
interest  is  advanced  by  it,  and  it  is  consented 
to  for  the  advantage  or  pleasure  of  the  two  offi- 
cers, they  must  bear  their  own  expense  of  trans- 
portation in  making  the  exchange.  (U.  S.  v. 
Phisterer,  94  U.  S.,  219,  221.) 

It  would  be  too  narrow  a  construction  of  the 
regulation  to  hold  that  it  required  that  two  offi- 
cers should  be  concerned  in  the  exchange. 
An  exchange  from  one  station  to  another  sta- 
tion by  the  same  officer,  at  his  own  request, 
if  found  compatible  with  the  public  service, 
would  be  within  the  words  of  the  regulation 
and  apparently  as  much  within  its  spirit  as 
when  the  exchange  was  made  by  and  between 
two  officers.     (U.  S.  v.  Phisterer,  94  U.  S.,  219.) 

Said  regulation,  however,  does  not  apply  to 
the  case  of  an  officer  who,  at  his  own  request,  is 
ordered  to  his  home  to  await  orders ;  his  home  is 
not  a  "station"  and  therefore  there  is  no  ex- 
change of  stations  within  the  meaning  of  the 
regulation.     (U.S.  v.  Phisterer,  94  U.  S.,  219.) 

See  Kozlowski  v.  United  States  (54  Ct.  Cls., 
206),  decided  January  13,  1919,  without  an 
opinion,  in  which  judgment  was  rendered 
against  the  United  States  for  mileage  in  favor 
of  a  paymaster's  clerk  in  the  Navy  who  was 
permitted  to  exchange  stations  with  another 
paymaster's  clerk.     (See  also  file  26266-664.) 

•Officer  traveling  by  permission. — Under 
the  act  of  June  30, 1876(19  Stat.,  159),  an  officer 
was  entitled  to  mileage  if  the  cause  of  his  travel 
was  ' '  public  business. ' '  When  the  commander 
of  a  squadron  on  the  high  seas  decides  that  there 
are  no  habitable  quarters  for  certain  warrant 
officers  on  the  ship,  and  that  he  has  no  alterna- 
tive save  that  of  detaching  them  "with  permis- 
sion" to  return  home,  he  not  feeling  at  liberty 
"to  order"  them  home,  because  their  quarters 
had  been  assigned  by  the  department,  the 
cause  of  the  travel  was  public  business.  Re- 
quest on  the  part  of  the  inferior  and  permission 
on  the  part  of  the  superior  officer  do  not  neces- 
sarily change  public  business  into  private  busi- 
ness.    (Barker  v.  U.  S.,  19  Ct.  Cls.,  288.) 

See  also  Katzer  v.  United  States  (52  Ct.  Cls., 
32),  noted  below. 

Officer  can  not  be  deprived  of  mileage 
allowed  by  law. — An  officer,  prior  to  appoint- 
ment as  paymaster's  clerk  in  the  Navy,  was 


8M 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1566. 


"authorized,"  by  telegram  from  the  Secretary 
of  the  Navy,  to  report  at  Mare  Island,  Calif., 
for  necessary  physical  examination;  and  "if 
qualified,  authorized  proceed  at  own  expense 
to  Newport,  R.  I.,  and  report  Minnesota  as 
paymaster's  clerk."  On  the  same  date  the 
Secretary  addressed  a  letter  to  the  candidate, 
authorizing  him  to  report  to  the  commandant, 
navy  yard,  Mare  Island,  for  examination,  and 
stating  that,  if  found  qualified,  "you  will  exe- 
cute the  inclosed  acceptance,  oath  of  office, 
and  beneficiary  slip,  and  will  proceed  at  your 
own  expense  to  Newport,  R.  I.,  reporting  to  the 
commanding  officer  of  the  Minnesota  for  the 
above-mentioned  duty";  and  directing  him  to 
forward  a  true  copy  "of  this  order"  to  the  Bu- 
reau of  Na\'igation.  The  candidate  was  fbund 
qualified,  and  excuted  the  oath  and  acceptance 
at  Mare  Island,  Calif.;  and  then  performed 
travel  to  Newport  and  reported  for  duty  on  the 
Minnesota.  Held,  that  he  became  a  paymas- 
ter's clerk  in  the  Navy  at  Mare  Island,  upon 
executing  the  oath  of  office,  and  that  the  travel 
performed  by  him  to  Newport  was  travel  "under 
orders."  Further  held,  that  the  right  of  an 
officer  of  the  Navy,  including  a  paj-master's 
clerk  (in  1913),  to  the  emoluments  and  allow- 
ances pertaining  to  his  office  and  prescribed  by 
statute  is  fixed,  and  the  appointing  power  can 
not  attach  conditions  to  the  appointment  which 
have  the  effect  of  depri\dng  the  officer  of  what 
the  law  authorizes  him  to  receiA'e.  The  Secre- 
tary would  have  no  more  right  to  require  the 
officer  to  waive  his  statutory  travel  pay  than  he 
would  have  had  to  require  a  waiver  of  part  of 
his  salary  as  a  condition  precedent  to  his  ac- 
ceptance or  enjovment  of  his  office.  (Katzer 
v.U.  S.,  52  Ct.  Cls.,  32,  citing  Glavey  r.  U.  S., 
182  U.  S.,  595,  and  Andrews  v.  U.  S.,  240  IT.  S., 
90.  See  also  Comp.  Dec,  Mar.  10,  1917,  appeal 
No.  26679,  in  case  of  Chief  Pay  Clerk  T.  M. 
Schnotala,  and  23  Comp.  Dec,  420,  421;  com- 
pare Hunt  V.  U.  S.,  38  Ct.  Cls.,  135;  5  Comp. 
Dec,  514;  and  9  Comp.  Dec,  5,  noted  under 
sec.  1422,  R.  S.,  "Transportation  may  be 
waived.") 

In  the  Katzer  case,  above  noted,  it  was  fur- 
ther held  that  the  Secretary's  direction  to  the 
officer  to  proceed  at  his  own  expense  did  not 
necessarily  mean  that  his  acceptance  of  the 
office  would  be  upon  the  condition  that  the 
Government  would  not  be  expected  or  required 
to  bear  his  mileage;  that  under  section  1566, 
Re\dsed  Statutes,  as  amended,  an  officer  must 
travel  at  his  own  expense  to  be  entitled  to  the 
statutory  allowance  of  mileage  when  traveling 
from  point  to  point  within  the  United  States; 
that  in  charging  the  officer  to  travel  to  Newport 
at  his  own  expense  the  Secretary  did  what  the 
law  required  as  a  condition  to  receiving  any 
travel  allowance,  and  it  is  more  reasonable  to 
ascribe  that  purpose  to  the  Secretary's  order 
than  it  is  to  adopt  the  \dew  that  the  Secretary's 
direction  constituted  an  illegal  condition. 

Travel  must  be  performed  under  or- 
ders.— There  is  no  act  of  Congress  or  Na\y 
regulation  authorizing  the  payment  of  traveling 
expenses  of  an  officer  while  traveling  in  the 
interests  of  the  serAdce  unless  by  order  of  an 
officer  having  the  authority  to  make  such  order. 
(Gove  V.  U.  S.,  49  Ct.  Cls.,  251.) 


Travel  required  by  oflicer's  delin- 
quency.— A  boatswain  in  the  Navy  was  absent 
from  his  vessel  when  she  sailed;  he  was  ordered 
by  the  commander  of  the  fleet  to  take  passage 
on  a  steamer  at  his  own  expense  and  rejoin  his 
ship ;  he  claimed  mileage  for  such  travel.  Held, 
that  claim  must  be  denied.  Mileage  is  a  form 
of  reimbursement,  and  "public  business"  is  the 
foundation  on  which  it  rests.  If  private  de- 
linquency and  not  public  business  was  the 
cause  of  the  travel,  the  officer  disbursed  nothing 
for  the  Government.  In  such  case  the  com- 
manding officer  could  not  make  the  Govern- 
ment liable  for  mileage  by  ordering  the  officer 
to  rejoin  his  ship.  (Perrimond  v.  U.  S.,  19 
Ct.  Cls.,  509.) 

The  right  of  an  officer  to  mileage  depends 
upon  his  haA-ing  traveled  upon  public  business. 
Ordinarly  it  is  for  his  commanding  officer  to 
determine  whether  public  business  required  it. 
If  he  be  delinquent  and  ordered  to  travel  at 
his  own  expense,  he  can  not  recover  mileage. 
(Hannum  v.  U.  S.,  19  Ct.  Cls.,  516.) 

Wording  of  order  not  controlling  as  to 
character  of  travel. — The  question  being  pre- 
sented whether  travel  performed  by  an  officer 
of  the  Navy,  under  orders,  was  on  public  busi- 
ness, held,  that  the  rule  is  well  settled  that  the 
terms  of  an  order  given  for  any  pinpose  can  not 
determine  the  character  of  the  travel  or  the 
ser\dce  performed,  but  that  the  question  must 
be  determined  from  the  particular  facts  in  each 
case.  (McCauley  v.  U.  S.,  52  Ct.  Cls.,  105, 
citing  Curry  v.  U.  S.,  47  Ct.  Cls.,  393,  398; 
McGovern  v.  U.  S.,  36  Ct.  Cls.,  63;  Leach  v. 
U.  S.,  44  Ct.  Cls.,  132;  and  Dovle  v.  U.  S.,  46 
Ct.  Cls.,  181.) 

Mileage  allowed  for  shortest  usually 
traveled  route. — ^An  officer  is  ordinarily 
bound  to  travel  by  the  shortest  usually  traveled 
route,  but  not  by  an  extraordinary  and  unusual 
route  because  it  is  the  shortest.  (Hannum  v. 
U.  S.,  19  Ct.  Cls.,  516.) 

Mileage  should  not  be  computed  by  tracing 
a  direct  route  upon  a  chart,  but  by  ascertaining 
the  distance  of  the  shortest  route  of  ordinary 
travel.     (DuBose  v.  U.  S.,  19  Ct.  Cls.,  514.) 

If  public  business  was  an  element  in  an 
officer's  circuity  of  route,  he  should  recover 
mileage  therefor,  under  the  act  of  June  30,  1876 
(19  Stat.,  65);  if  it  was  not,  the  Government  is 
not  answerable  for  the  needless  distance. 
(DuBose  V.  U.  S.,  19  Ct.  Cls.,  514.) 

An  order  requiring  an  officer  to  leave  for  his 
station  before  a  designated  date  does  not  author- 
ize him  to  travel  by  a  circuitous  route  if  other 
means  o  ffer  prior  to  the  appointed  date .  (Crosby 
i;.  U.  S.,  22  Ct.  Cls.,  131.) 

By  the  Re^vised  Statutes,  section  1566,  as 
modified  by  the  act  of  June  30,  1876  (19  Stat., 
65),  mileage  is  allowed  to  naval  officers.  When 
the  choice  of  the  route  is  left  to  the  discretion 
of  the  officer,  his  mileage  should  be  calculated 
by  the  shortest  usually  traveled  route,  regard- 
less of  the  distance  actually  traveled,  unless 
some  good  reason  be  shown  for  the  deviation. 
fCrosby  v.  U.  S.,  22  Ct.  Cls.,  131.) 

Travel  performed  not  in  conforrmty 
with  orders. — When  an  officer  does  not  travel 
by  the  most  direct  route,  or  being  ordered  to 
travel  by  one,  is  compelled  to  travel  by  another. 


845 


Sec.  1567. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


he  must  bring  to  the  a'^counting  oflicers  the 
authority  or  ratification  of  the  Navy  Depart- 
ment; neglecting  to  do  so,  he  must  establish  his 
rights  judiciallv.  fHannum  v.  U.  S.,  19  Ct. 
Cls.,  516.) 

An  officer  at  a  foreign  station  receives  an 
order  stating  that  his  resignation  is  accepted  to 
take  effect  on  his  "arrival  in  the  United 
States,"  and  directing  him  to  proceed  to  New 
York  and  report  by  letter  the  dale  of  his  arrival. 
The  officer  travels  by  another  route,  entering 
the  United  States  at  San  Francisco;  he  reports 
the  reasons  for  so  doing,  and  the  Secretary  ap- 
proves his  action  and  orders  that  his  resignation 
take  effect  the  date  of  his  arrival  in  New  York. 
Held,  that  where  a  naval  officer  satisfies  the 
Secretary  of  the  Na^^  that  the  route  traveled 
by  him  was  proper,  admitting  the  circum- 
sfances,  ratification  was  as  effective  as  ante- 
cedent authority.  (Allerdice  v.  U.  S.,  19  Ct. 
Cls.,  511.) 

Permission  given  by  an  admiral  on  a  foreign 
station  to  an  officer  to  return  home  by  a  mer- 
chantman at  his  own  cost,  instead  of  by  a  ship 
of  war  as  directed  by  the  Navy  Department 
does  not  constitute  the  travel  as  upon  public 
business.     (Pendleton  v.  U.  S.,  21  Ct.  Cls.,  5.) 

Where  a  naval  officer  did  not  travel  home  in 
the  manner  directed  by  the  department,  and 
his  action  has  not  been  ratified  or  approved,  an 
informal  permission  by  his  immediate  com- 
manding officer  to  return  in  another  manner 
does  not  alter  the  legal  situation  of  his  claim 
for  mileage.     (Pendleton  v.  U.  S.,  21  Ct.  Cls.,  5.) 

Where  a  naval  officer  under  orders  to  return 
home  on  a  ship  of  war  technically  disobeys  by 
returning  on  a  merchantman,  he  can  not  receive 
mileage,  though  the  exercise  of  his  discretion 
in  consequence  of  the  changed  position  of  the 
ship  of  war  may  have  been  a  wise  one.  (Pen- 
dleton v.  U.  S.,  21  Ct.  Cls.,  5.) 

Effect  of  change  in  la-w  while  travel 
being  performed. — The  claim  of  a  naval 
officer  for  his  expenses  when  traveling  under 
orders  rests,  not  upon  contract  with  the  Govern- 
ment, but  upon  acts  of  Congress;  and  when  part 
of  such  a  journey  is  performed  when  one  statute 
is  in  force,  and  the  remainder  after  another 
statute  takes  effect,  providing  a  different  rate 
of  compensation,  the  compensation  for  each 
part  of  the  journey  is  to  be  at  the  rate  provided 
by  the  statute  in  force  when  the  traveling  was 
done.     U.  S.  v.  McDonald,  128  U.  S.,  471.) 

Who  are  "officers"  within  raeaning  of 
mileage  laws.^ — ^See  note  above,  under  act 
of  1S74  repealed  only  in  part  by  act  of  1876." 

A  paymaster's  clerk  appointed  by  a  paymaster 
in  the  Navy,  although  his  appointment  is  in- 
dorsed with  the  approval  of  the  Secretary  of  the 
Navy,  is  not  an  officer  of  the  Navy  within  the 
meaning  of  the  statute  of  June  30,  1876,  because 
there  is  no  statute  authorizing  the  Secretary  of 
the  Navy  to  appoint  a  paymaster's  clerk  or 
requiring  his  approval  of  such  an  appointment ; 


and  the  regulations  of  the  Navy  in  force  at  the 
time  did  not  require  any  such  appointment  or 
approval  for  the  holding  of  the  position.  There- 
fore a  paymaster's  clerk  was  not  an  officer, 
either  appointed  by  the  President  or  under  the 
authority  of  any  law  vesting  such  appointment 
in  the  head  of  a  department;  and  was  not  enti- 
tled to  allowance  for  mileage  under  the  act  of 
1876,  notwithstanding  that'the  word  "officer" 
might  be  construed  in  a  more  popular  sense  as 
embracing  such  clerk  in  other  connections. 
(U.  S.  V.  Mouat,  124  U.  S.,  303;  see  also  note 
to  sec.  1386,  R.  S.) 

A  paymaster's  clerk  (prior  to  the  act  of  Mar. 
3,  1915,  noted  under  sec.  1386,  R.  S.),  was  not 
an  "officer  of  the  Navy"  entitled  to  mileage 
within  the  meaning  of  the  act  of  March  3,  1901 
(31  Stat. ,  1029).  A  regulation  of  the  Navy  De- 
partment vesting  the  appointment  of  such 
clerks  in  the  Secretaryof  the  Navy  was  not 
sufficient  to  change  their  status  so  as  to  bring 
them  within  the  terms  of  said  act.  Such  regu- 
lation was  not  a  law  of  Congress  within  the 
meaning  of  the  Constitution  relating  to  appoint- 
ment of  officers,  and  heads  of  departments  can 
not  confer  upon  themselves  authority  to  ap- 
point officers  of  the  United  States  by  mere  regu- 
lations. (Ashton  V.  U.  S.,  51  Ct.  Cls.,  65;  dis- 
tinguishing Katzer  ■?;.  U.  S.,  49  Ct.  Cls.,  294.) 

Under  the  act  of  June  24,  1910  (36  Stat.,  606), 
a  paymaster's  clerk,  "while  holding  appoint- 
ment in  accordance  with  law, "  was  given  the 
same  pay  and  allowances  as  warrant  officers  of 
like  length  of  service  in  the  Navy,  Under  this 
act  it  is  not  necessary  to  determine  whether  a 
paymaster's  clerk  was  an  officer  of  the  Navy 
■within  the  meaning  of  the  mileage  law  of 
March  3,  1901,  as  said  act  of  1910  prescribes 
what  the  pay  and  allowances  or  emolimients  of 
paymaster's  clerks  shall  be.  If  an  act  provided 
that  clerks  in  the  office  of  the  Auditor  for  the 
War  Department  should  receive  the  same  pay 
and  allowances  as  warrant  officers  in  the  Navy, 
it  would  not  be  necessary  to  inquire  whether 
the  clerks  were  officers  of  the  Navy,  any  more 
than  it  would  be  supposed  that  because  the 
Navy  personnel  act  of  March  3,  1899,  assimi- 
lated the  pay  of  officers  in  the  Navy  to  that  of 
officers  of  con-esponding  rank  in  the  Army  they 
had  to  become  officers  of  the  Army.  It  fol- 
lows that,  under  the  act  of  1910,  paymasters' 
clerks  became  entitled  to  mileage  as  allowed 
warrant  officers  by  the  act  of  March  3,  1901. 
(Katzer  v.  U.  S.,  52  Ct.  Cls.,  32.) 

A  mate  in  the  Navy  is  not  an  officer  of  the 
United  States  within  the  meaning  of  the  decis- 
ion of  the  Supreme  Court  in  the  case  of  Mouat  v. 
United  States  (124  U.  S.,  303,  307),  and  is  not 
entitled  to  mileage.  Money  paid  such  mate 
for  mileage  was  received  by  him  in  violation  of 
law  and  may  be  recovered  by  the  United 
States  on  a  counterclaim.  (Baxter  v.  U.  S., 
32  Ct.  Cls.,  75;  see  also  note  to  sec.  1408,  R.  S.) 


Sec.  1567.  [Officers  serving  as  store-keepers  on  foreign  stations.] — Officers 
who  are  ordered  to  take  charge  of  naval  stores  for  foreign  squadrons,  in  the 
place  of  naval  store-keepers,  shall  be  entitled  to  receive,  while  so  employed,  the 
shore-duty  pay  of  their  grades;  and  when  the  same  is  less  than  fifteen  hundred 
dollars  a  year,  they  may  be  allowed  compensation,  including  such  shore-duty 


846 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1569. 


pay,  at  a  rate  not  exceeding  fifteen  hundred  doDars  a  year. —  (17  June,  1844,  c. 
107,  s.  1,  V.  5,  pp.  700,  701. 

See  sections  1413  and  1438,  Revised  Statutes. 

Sec.  1668.  [Civilians,  store-keepers  on  foreign  stations.] — Civilians  ap- 
pointed as  store-keepers  on  foreign  stations  shall  receive  compensation  for  such 
services,  at  a  rate  not  exceeding  fifteen  hundred  dollars  a  year. —  (17  June,  1844, 
c.  107,  s.  1,  V.  5,  pp.  700,  701.    3  Mar.,  1847,  c.  48,  s.  3,  v.  9,  pp.  172, 173.) 

See  sections  1414  and  1438,  Revised  Statutes. 

Sec.  1569.   [Pay  of  enlisted  men.     Superseded.] 


This  section  provided  as  follows:  "Sec. 
1569.  Tlje  pay  to  be  allowed  to  petty  officers, 
excepting  mates,  and  the  pay  and  bounty  upon 
enlistment  of  seamen,  ordinary  seamen,  fire- 
men, and  coal-heavers,  in  the  naval  service, 
shall  be  fixed  by  the  President:  Provided, 
That  the  whole  sum  to  be  given  for  the  whole 
pay  aforesaid,  and  for  the  pay  of  officers,  and  for 
the  said  bounties  upon  enlistments  shall  not 
exceed,  for  any  one  year,  the  amount  which 
mav,  in  such  year,  be  appropriated  for  such 
pui-poses."— (18  Apr.,  1814,  c.  84,  s.  l,v.  3,  p. 
136.  3  Mar.,  1847,  c.  48,  s.  4,  v.  9,  p.  173.  1 
July,  1864,  c.  201,  s.  4,  v.  13,  p.  342.  3  Mar., 
1865,  c.  124,  8.  2,  V.  13,  p.  539.) 

It  was  amended  by  act  of  March  3,  1899, 
section  16  (30  Stat.,  1008),  quoted  under  section 
1573,  Re\T.sed  Statutes,  fixing  increased  pay  of 
enlisted  men  for  continuous  service  in  the  Na\'y. 
See  decisions  noted  under  section  1573  relating 
to  continuous-service  pay,  and  honorable- 
discharge  gratuity. 

It  was  superseded  by  the  following  pro- 
Aisions  of  the  naval  appropriation  act.  May  13, 
1908  (35  Stat.,  128): 

"The  pay  of  all  active  and  retired  enlisted 
men  of  the  Navy  is  hereby  increased  ten  per 
centum:  *  *  *  all  pay  herein  provided 
shall  remain  in  force  until  changed  by  act  of 
Congress.  Nothing  herein  shall  be  construed 
so  as  to  reduce  the  pay  or  allowances  now  au- 
thorized by  law  for  any  *  -x-  *  enlisted 
man  of  the  active  or  retired  lists  of  the  Na\'y, 
and  all  laws  inconsistent  with  this  pro\'ision 
are  hereby  repealed." 

Other  changes  were  made  by  the  follow- 
ing statutes: 

Hospital  Corps. — "*  *  *  the  Hospital 
Coi-ps  of  the  United  States  Na^y  shall  consist  of 
the  following  grades  and  ratings:  *  *  *  en- 
listed men  classified  as  chief  pharmacists'  mates 
pharmacists'  mates,  first  class;  pharmacists' 
mates,  second  class;  pharmacists'  mates,  third 
class;  hospital  apprentices,  first  class;  and 
hospital  apprentices,  second  class;  such  clas- 
sifications in  enlisted  ratings  to  correspond  re- 
spectively to  the  enlisted  ratings,  seamen 
branch,  of  chief  petty  officers;  petty  officers, 
first  class;  petty  officers,  second  class;  petty 
officers,  third  class;  seamen,  first  class;  and 
seamen,  second  class."  (Act  Aug.  29,  1916,  39 
Stat.,  572,  superseding  prior  laws  relating  to  the 
Hospital  Corps.) 

"*  *  *  the  pay,  allowances,  and  emolu- 
ments of  the  enlisted  men  of  the  Hospital  Corps 
shall  be  the  same  as  are  now,  or  may  hereafter 


be,  allowed  for  respective  corresponding  ratings, 
except  the  rating  of  turret  captain  of  the  first 
class  in  the  seaman  branch  of  the  Navy:  Pro- 
vided, That  the  pay  of  the  rating  of  the  chief 
pharmacist's  mate  shall  be  the  same  as 
that  now  allowed  for  the  existing  rating  of 
hospital  steward."  (Act  Aug.  29,  1916,  39 
Stat.,  573.)  It  had  pre^•iously  been  pro\'ided 
by  act  of  May  13,  1908  (35  Stat.,  146),  that  "the 
pay  of  enlisted  men  of  the  Hospital  Corps  shall 
be  the  same  as  that  pro\-ided  for  the  correspond- 
ing ratings  of  the  seaman  branch  and  other  staff 
corps  of  the  Na^y";  and  by  act  of  June  17, 
1898  (30  Stat.,  474,  475),  that  "the  pay  of  hos- 
pital stewards  shall  be  sixty  dollars  a  month, 
the  pay  of  hospital  apprentices  (first  class) 
thirty  dollars  a  month,  and  the  pay  of  hospital 
apprentices  twenty  dollars  a  month,  with  the 
increase  on  account  of  length  of  ser%ice  as  is 
now  or  may  hereafter  be  allowed  by  law  to  other 
enlisted  men  in  the  Na^"v^" 

The  effect  of  the  act  6i  May  13,  1908,  was  to 
allow  enlisted  men  of  the  Hospital  Corps  the 
same  rates  of  pay  as  allowed  other  enlisted  naen 
of  corresponding  ratings  under  Executive 
orders  issued  pursuant  to  section  1569,  Re\d8ed 
Statutes;  but  this  did  not  entitle  hospital 
stewards  to  the  pay  of  the  rating  of  chief  petty 
officer  from  the  date  of  said  act,  but  only  from 
the  date  that  such  rating  was  conferred  upon 
him.  (17Comp.  Dec,  452.  By  a  clause  in  the 
naval  appropriation  act  of  August  22,  1912,  the 
Auditor  for  the  Navy  Department  was  directed 
to  allow  payments  which  had  been  made  to 
hospital  stewards  who  were  granted  permanent 
appointments  as  of  May  13,  1908,  and  which 
payments  had  been  disallowed  pursuant  to  the 
comptroller's  decision  last  cited.) 

Ratings  changed. — "That  the  designation  of 
the  ratings  of  coal  passer  be  changed  to  fireman, 
third  class,  and  that  of  ordinary  seaman 
to  seaman,  second  class,  without  change 
of  pay;  and  that  the  Bureau  of  Na\igation  be 
authorized  under  rules  established  for  the  ad- 
vancement of  other  enlisted  men,  to  advance 
printers  to  the  ratings  of  printer,  first  class,  and 
chief  printer,  which  ratings  are  hereby  au- 
thorized with  same  pay  and  increases  allowed 
to  yeomen,  first  class,  and  chief  yeomen,  re- 
spectively: And  provided  further,  That  the 
rating  of  storekeeper  is  hereby  established  in 
the  artificer  branch  with  the  f"ollo\ving  rates  of 
pay  per  month:  Chief  petty  officer,  $50;  petty 
officer,  first  class,  $40;  petty  officer,  second 
class,  S35:  petty  officer,  third  class,  §30,  subject 
to  such  increases  of  pay  and  allowances  as  are 


847 


Sec.  1569. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


or  may  hereafter  be  authorized  by  law  for  the 
enlisted  men  of  the  Navy."  (Act  Aug.  29, 
19 K),  39  Stat.,  575.) 

Naval  Filling  Corps — "The  enlisted  person- 
nel of  the  Naval  Flj-ing  Corps  ahall  be  dis- 
tributed by  the  Secretary  of  the  Na\'y  in  the 
various  ratinjjs  as  now  ol)tain  in  the  Navy  in  so 
far  as  suoli  ratings  are  applicable  to  duties  con- 
nected with  aircraft."  (Act  Aug.  29,  1916,  39 
Stat.,  585,  586.) 

"  *  *  *  the  enlisted  men  of  the  Naval 
Fljdng  Corps  shall  receive  the  same  pay  and 
allowances  that  are  now  pro\'ided  by  law  for 
*  *  *  enlisted  men  of  the  same  grade  or 
rank  and  rating  in  the  Navy  and  Marine  Corps 
detailed  to  duty  with  aircraft  invoh-ing  actual 
flying."    (Act  Aug.  29,  1916,  39  Stat.,  583.) 

((■  *  *  *  enlisted  men,  while  detailed 
as  student  a\dators  and  student  airmen  in- 
vohdng  actually  flying  in  aircraft,  shall  re- 
ceive the  same  pay  and  allowances  that  are 
now  proAaded  by  law  for  *  *  *  enlisted 
men  of  the  same  grade  or  rank  and  rating  in 
the  NaA-y  detailed  for  dutv  with  aircraft." 
(Act  Aug.    29,    1916,    39   Stat.,   584.) 

"Hereafter  enlisted  men  of  the  Navy  or 
Marine  Corps,  while  detailed  for  duty  in- 
voh-ing  actual  flying  in  aircraft,  shall  receive 
the  pay,  and  the  permanent  additions  thereto, 
including  allowances,  of  their  rating  and 
ser\ice,  or  rank  and  serAdce,  as  the  case  may 
be,  plus  fifty  per  centum  increase  thereof." 
(Art  Mar.  3",   1915,  38  Stat.,   939.) 

By  act  of  July  1,  1918  (40  Stat.,  718),  it  was 
provided  that  the  "allowances"  of  "enlisted 
men  *  *  *  of  the  naval  service  shall  in 
no  case  be  increased  by  reason  of  the  per- 
formance of  aviation  duty." 

See  note  to  section  1556,  Revised  Statutes, 
under  "Additional  pay  for  special  duty — 
A\dation    duty." 

Naval  Academy  Band. — "The  Naval  Acad- 
emy Band  shall  hereafter  consist  of  one 
leader,  with  pay  and  allowanotes  of  first  lieu- 
tenant in  the  Marine  Corps;  one  second  leader, 
with  a  base  pay  of  $81  per  month;  forty-five 
musicians,  first  class,  \\dth  a  l)ase  pay  of  $51 
per  month;  twenty-seven  musicians,  second 
class,  with  a  base  pay  of  $44  per  month;  one 
drum  major,  with  a  base  pay  of  $57.20  per 
month;  and  the  said  leader  of  the  band,  second 
leader  of  the  band,  drum  major  of  the  band, 
and  the  enlisted  musicians  of  the  band  shall 
be  entitled  to  the  same  benefits  in  respect  to 
pay,  emoluments,  and  retirement  arising 
from_  longe\aty,  reenlistment,  and  length  of 
service  as  are  or  may  hereafter  become  ap- 
plicable to  other  officers  or  enlisted  men  of 
the  Navy."  (Act  July  11,  1919,  41  Stat., 
152;  modifying  act  of  April  12,  1910,  36  Stat., 
297.) 

Under  the  act  of  April  12,  1910  (36  Stat., 
297),  i^roviding  for  the  enlistment  of  the  Naval 
Academy  bandsmen  and  giving  them  "the 
sanie  benefits  in  respect  to  pay,  emoluments, 
and  retirement  arising  from  longe\ity,  re- 
enlistment,  and  length  of  serWce  as  are  or  may 
hereafter  become  applicable  to  other  enlisted 
men  of  the  Navy,"  such  bandsmen  upon  en- 
listment are  entitled  to  be  credited  with  all 
services  as  members  of  said  band  in  comput- 
ing   continuous-service    pay,    such   corr  uta- 


tion  to  be  made  as  if  actually  enlisted  and 
discharged  as  provided  by  law  in  effect  when 
such  ser\dce  was  rendered;  and  if  citizens  of 
the  United  States  they  are  entitled  to  the 
additional  pav  j>rovided  l)v  General  Order 
No.  34  of  November  28,  1906  (art.  1134,  par. 
7,  Navy  Regs.,  1909),  and  to  ten  per  cent 
increase  on  all  permanent  pay  as  provided  by 
the  act  of  May  13,  1908  (35 "Stat.,  128).  (17 
Comp.    Dec,   27.) 

New  rating.^  established. — "The  ratings  of 
engineman,  first  class,  engineman,  serond 
class;  blacksmith,  first  class,  blacksmith, 
second  class;  coppersmith,  first  class,  copper- 
smith, second  class;  pattern  maker,  first  class, 
pattern  maker,  second  class;  molder,  first 
class,  molder,  second  class;  chief  special 
mechanic  and  special  mechanic,  fir^  class, 
be,  and  they  are  hereby,  established  in  the 
artificer  branch  of  the  Navy  with  the  follow- 
ing rates  of  base  pay  per  month:  Engineman, 
first  class,  $45;  engineman,  second  class,  $40; 
blacksmith,  first  class,  $65;  blacksmith,  second 
class,  $50;  coppersmith,  first  class,  $65;  cop- 
persmith, second  class,  $50;  pattern  maker, 
first  class,  $65;  pattern  maker,  second  class, 
$50;  molder,  first  class,  $65;  molder,  second 
class,  $50;  chief  special  mechanic,  $127;  spe- 
cial mechanic,  first  class,  $80:  Provided,  That 
the  base  pay  of  machinists'  mates,  second 
class,  and  water  tenders  be,  and  it  is  hereby, 
increased  from  $40  to  $45  per  month:  Provided 
further,  That  all  the  aforesaid  rates  of  pay 
shall  be  subject  to  such  increases  of  pay  and 
allowances  as  are,  or  may  hereafter  be,  au- 
thorized by  law  for  enlisted  men  of  the  Navy: 
And  provided  further.  That  appointments  or 
enlistments  in  the  said  ratings  may  be  made 
from  enlisted  men  in  the  Navy  or  from  civil 
life,  respectively,  and  the  qualifications  of 
candidates  for  any  of  said  ratings  shall  be 
determined  in  accordance  with  such  regula- 
tions as  the  Secretary  of  the  Navv  may  pre- 
scribe."   (Act  Oct.   6,    1917,   40  Stat.,    397.) 

Grades  and  ratings  to  be  established  by  Sec- 
retary.— "That  hereafter  the  Secretary  of  the 
Navy  is  authorized,  in  his  discretion,  to  es- 
tablish such  grades  and  ratings  as  may  be 
necessary  for  the  proper  administration  of 
the  enlisted  personnel  of  the  Navy  and  ]\larine 
Corps."     (Act  June  4,    1920,   41   Stat.,   836.) 

Increases  in  pay  during  war. — "That  com- 
mencing June  first,  nineteen  hundred  and 
seventeen,  and  continuing  until  not  later 
than  six  months  after  the  termination  of  the 
present  war,  all  enlisted  men  of  the  Navy  of 
the  United  States  in  active  service  whose 
base  pay  does  not  exceed  $21  per  month  shall 
receive  an  increase  of  $15  per  month;  those 
whose  base  pay  is  oA'er  $21  and  does  not  exceed 
$24  per  month,  an  increase  of  $12  per  month; 
those  whose  base  pay  is  over  $24  and  less  than 
$45  per  month,  an  increase  of  $8  per  month; 
and  those  whose  base  pay  is  $45  or  more  per 
month,  an  increase  of  $6  per  month:  Provided, 
That  the  increases  of  pay  herein  authorized 
shall  not  enter  into  the  computation  of  con- 
tinuous-serA-ice  pay."  (Act  May  22,  1917, 
sec.  15,  40  Stat.,  87.) 

"Base  pay,"  as  that  term  is  used  in  the 
act  of  May  22,  1917  (40  Stat.,  87),  relative  to 
increase  in  pay  of  enlisted  men  during  the 


848 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1569. 


present  war,  is  the  fixed  monthly  sum  to  which 
such  enlisted  men  are  respectively  entitled, 
stripped  of  all  increases  or  additions  thereto 
by  percentages  or  otherwise,  and  accordingly 
does  not  include  the  ten  per  cent  increase 
pro\'ided  in  the  act  of  May  13,  1908  (35  Stat., 
128).     (23  Comp.  Dec,  677.) 

War  time  increases  temporarily  continued. — 
"The  rates  of  pay  prescribed  in  section  15  of 
an  act  *  *  *  approved  ]\Iay  22,  1917, 
are  hereby  made  the  permanent  rates  of  pay 
of  the  enlisted  men  of  the  Navy  during  their 
present  current  enlistment  and  for  those  who 
enlist  or  reenlist  prior  to  July  1,  1920,  for  the 
term  of  such  enlistment  or  reenlistment. " 
(Act  July  11,   1919,  41  Stat.,   140.) 

The  10  per  cent  increase  provided  by  the 
act  of  May  13,  1908  (35  Stat.,  128),  for  enlisted 
men  of  the  Navy,  does  not  attach'  to  the  in- 
crease provided  in  section  15  of  the  act  of  May 
22,  1917  (40  Stat.,  87),  which  the  act  of  July 
11,  1919  (41  Stat.,  140),  makes  a  part  of  the 
permanentpay  of  arating.  (26  Comp. Dec,  143.) 

Temporary  increases  of  1920. — By  act  of  May 
18,  1920,  section  6  (41  Stat.,  602),  it  was  pro- 
vided that  "commencing  January  1,  1920,  the 
follo\ving  shall  be  the  rate  of  base  pay  for  each 
enlisted  rating:  Chief  petty  officers  mth  acting 
appointments,  $99  per  month;  cliief  petty  offi- 
cers with  permanent  appointments  and  mates, 
$126  per  month;  petty  officers,  first  class,  $84 
per  month ;  petty  officers,  second  class,  $72  per 
month;  petty  officers,  tliird  class,  $60  per 
month;  nonrated  men,  first  class,  $54  per  month; 
nonrated  men,  second  class,  $48  per  month; 
nonrated  men,  tliird  class,  $33  per  month:  Pro- 
vided, That  the  base  pay  of  firemen,  first  class, 
shall  be  $60  per  month;  firemen,  second  class, 
$54  per  month;  firemen,  third  class,  $48  per 
month:  Provided  further.  That  the  rate  of  base 
pay  for  each  rating  in  the  Naval  Academy  Band 
shall  be  as  follows:  Second  leader,  with  acting 
appointment,  $99  per  month  with  permanent 


appointment,  $126  per  month;  drum  major,  $84 
per  month;  musicians,  first  class,  $72  per 
month;  musicians,  second  class,  $60  per  month: 
Provided  further,  That  the  base  pay  of  cabin 
stewards  and  cabin  cooks  shall  be  $84  per 
month;  wardroom  stewards  and  wardroom 
cooks,  $72  per  month;  steerage  stewards  and 
steerage  cooks,  $72  per  month;  warrant  officers' 
stewards  and  warrant  officers'  cooks,  $60  per 
month;  mess  attendants,  first  class,  $42  per 
month;  mess  attendants,  second  class,  $36  per 
month;  mess  attendants,  third  class,  $33  per 
month:  *  *  *  Provided  further,  That  the 
rates  of  base  pay  herein  fixed  shall  not  be 
further  increased  10  per  centum  as  authorized 
by  an  act  approved  May  13,  1908,  nor  by  the 
temporary  war  increases  as  authorized  by  sec- 
tion 15  of  the  act  approved  May  22,  1917,  as 
amended  by  the  act  approved  July  11,  1919." 
By  section  13  of  the  same  act  (41  Stat.,  604),  it 
was  provided  that  the  rates  of  bases  pay  therein 
established  for  enlisted  men  "shall  remain 
effective  until  the  close  of  the  fiscal  year  ending 
June  30,  1922,  unless  sooner  amended  or  re- 
pealed," and  that  said  rates  of  pay  "shall  be 
the  rates  of  pay  during  the  current  enlistment 
of  all  men  in  active  service  on  the  date  of  the 
approval  of  this  act,  and  for  those  who  enlist, 
reenlist,  or  extend  their  enlistments  prior  to 
July  1,  1922,  for  the  term  of  such  enlistment, 
reenlistment,  or  extended  enlistment."  It  was 
fiirther  provided  therein  "that  the  increases 
provided  in  this  act  shall  not  enter  into  the 
computation  of  the  retired  pay  of  *  *  * 
enlisted  men  who  may  be  retired  prior  to 
July  1,  1922."  By  section  14  of  the  same  act 
(41  Stat.,  604),  it  was  provided  "that  nothing 
contained  in  this  act  shall  operate  to  reduce  the 
pay  or  allowances  of  any  *  *  *  enlisted 
man  on  the  active  or  retired  list:  Provided,  That 
the  allowances  and  gi-atuities  now  authorized 
by  existing  law  are  not  changed  hereby,  except 
as  otherwise  specified  in  this  act." 


1.  Historical  note. 

2.  Compilation   of   orders  issued   under  sec- 

tion 1569. 

3.  Act  of  May  13,  1908,  construed. 

4.  Civilians  shipped  on  naval  vessels. 

5.  Insular  force. 

6.  Mates. 

7.  Mess  attendants  and  cooks. 

8.  Additional  pay  for  special  duty,  etc. 

9.  Longevity  pay,  General  Order  No.  34. 

10.  Changes  in  rating. 

11.  Commencement  of  pay. 

12.  Leave  of  absence. 

13.  Forfeiture  of  pay. 

1.  Historical  note. — "Section  7  of  the  act 
of  March  27,  1794,  first  authorized  the  President 
to  fix  tha  pay  which  should  be  allowed  to  petty 
officers,  ordinary  seamen,  seamen,  and  marines. 
The  act  of  July  1,  1797,  contains  the  same 
authorization.  The  act  of  April  18,  1814,  pro- 
vides that  the  pay  and  bounty  upon  enlistment 
of  seamen,  ordinary  seamen,  and  marines  shall 


14.  Men  transferred  to  Fleet  Naval  Reserve. 

15.  Men  furloughed  without  pay. 

16.  Men  extending  enlistments. 

17.  Retired  enlisted  men. 

18 .  Men  detained  after  expiration  of  enlistment. 

19.  Fraudulent  enlistment. 

20.  Mileage  and  transportation  on  discharge. 

21.  Clothing  bounty  on  enlistment. 

22.  Deposit  of  savings. 

23.  Waiver  of  pay  or  allowances. 

24.  Sixty  dollar  bonus  on  discharge. 

25.  Attachment  of  pay  by  creditors. 

26.  Allotments  of  pay. 


be  fixed  by  the  President  of  the  United  States. 
The  act  of  March  3,  1847,  pro\ades  that  the  pay 
of  firemen  and  coal  heavers  employed  in  the 
naval  service  shall  hereafter  be  fixed  by  the 
President  in  the  same  manner  as  is  now  pro- 
vided by  law  for  the  pay  of  other  petty  officers, 
seamen."  ordinary  seamen,  and  marines."  (24 
Comp.  Dec,  364,  367;  hearings  before  the  Com- 


849 


Sec.  1569. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


mittee  on  Naval  Affairs,  TTouse  of  Representa- 
tives, appropriation  bill  subjects,  1909,  60th 
Cong.,  1st  sess..  No.  97,  p.  907.) 

2.  Compilation  of  orders  issued  under 
section  1569.— Prior  to  May  13,  1908,  the  pay 
of  enlisted  men  of  the  Navy  was  provided  for 
under  section  15(59,  Revised  Statutes.  The  fol- 
lowing is  a  compilation  of  orders  issued  pur- 
suant to  said  section,  from  November  7,  1883, 
to  February  7,  1908,  fixing  the  pay  of  enlisted 
men  of  the  United  States  Navy: 

General  Order  1 

No.  310  /  November  7,  1883. 

The  following  Executive  order  is  published 
for  the  information  and  guidance  of  all  con- 
cerned. 

Edward  T.  Nichols, 
Acting  Secretary  of  the  Navy. 

Executive  Mansion, 
Washington,  D.  C,  November  5,  1883. 

The  pay  of  the  petty  officers  and  enlisted 
men  of  the  United  States  Navy  on  and  after  the 
1st  of  January,  1884,  will  be  as  follows: 


Rating. 


Seamen  gunners 

Chief  boatswains'  mates 

Boatswains'  mates 

Chief  gunners'  mates 

Gunners'  mates 

Chief  quartermaster 

Quartermasters 

Cockswains 

Captains  of  forecastle 

Captains  of  tops 

Captains  of  afterguard 

Quarter  gunners 

Carpenters'  mates  [see  G.  O.  311]. 

Sailiaakers'  mates 

Machinists,  first-class 

MachLoists,  second  class 

Machinists,  third  class 

Blacksmiths 

Armorers 

Captains  of  hold 

Ship's  cooks 

Ship's  corporals 

Ship's  lamplighters 

Jack-of-the^iust 

Carpenter  and  calkers 

Baymen 

Seamen 

Ordinary  seamen 

Landsmen 

Bovs. 


Ordinary  seamen,  second  class  (apprentices) . 

Apprentices,  first  class 

Apprentices,  second  class 

Apprentices,  third  class 

Firemen,  first  class 

Firemen,  second  class 

Coal  heavers 

Apothecaries 

Yeomen,  paymasters' 

Yeomen,  eqiiipment 

Yeomen,  engineers' 

Master-at-arms 

Schoolmasters \,\\ 

Ship's  wTiters 

Ship's  printers 

Ship's  tailors 

Ship's  barbers 

Painters 

Cabin  stewards 

Cabin  cooks 

Wardroom  stewards 

Wardroom  cooks  [see  G.  0. 311] 

Steerage  stewards 

Steerage  cooks 

Warrant  officers'  steward 


Monthly 
pay. 


S34.00 
35.00 
30.00 
35.00 
30.00 
35.00 
30.00 
30.00 
30.00 
30.00 
27.00 
27.00 
40.90 
40.00 
70.00 
60.00 
50.00 
60.00 
45.00 
30.00 
35.00 
28.00 
25.00 
22.00 
25.00 
18.00 
24.00 
19.00 
16.00 
10.00 
15.00 
11.00 
10.00 
9.00 
35.00 
30.00 
22.00 
60.00 
60.00 
60.00 
60.00 
65.00 
45.00 
45.00 
40.00 
30.00 
30.00 
30.00 
37.00 
32.00 
37.00 
37.00 
25.00 
22.00 
24.  a) 


Warrant  officers'  cooks 

Steward  to  commanders  in  chief 

Cooks  to  commanders  in  chief 

Cockswains  to  commanders  in  chief 

Steward  to  commandants,  navy  yards 

Cooks  to  commandants,  navy  yards 

Cockswains  to  commandants,  navy  yards 

Masters  of  bands 

Musicians,  first  class 

Musicians,  second  class 

Buglers 

Electricians 


$20.00 
45.00 
40.00 
35.00 
45.00 
40.00 
35.00 
52.00 
32.00 
30.00 
33.00 
50.00 


Chester  A.  Arthur. 


General  OrderI 
No.  311.        / 


November  15,  1883. 


The  following  corrections  of  typograpliical 
errors  in  the  Executive  order  of  November  5, 
1883,  promulgated  in  General  Order  No.  310, 
of  November  7,  1883,  are  hereby  made,  viz: 
The  pay  of  caqjenters'  mates  will  read  §40 
instead  of  $40.90,  and  the  pay  of  wardroom 
cooks  wiU  read  $32  instead  of  $37. 
Edward  T.  Nichols, 
Acting  Secretary  of  the  Navy. 


November  24,  1883. 


General  OrderI 
No.  312.        / 

On  and  after  January  1,  1884,  General  Order 
No.  208,  of  April  1,  1876,  will  be  superseded, 
and  the  pay  of  the  crews  of  receiving  ships 
will  be  regulated  by  General  Order  No.  310, 
of  the  Navy  Department,  dated  November 
7,    1883. 

Wm.  E.  Chandler, 
Secretary  of  the  Navy. 


November  24,  1883. 


General  Order! 
No.  313,   / 

The  rates  of  finisher,  boiler  maker,  engi- 
neer's blacksmith,  armorer's  mate,  cooper, 
ship's  baker,  and  second-class  painter  being 
abolished  by  Executive  order  dated  Novem- 
ber 5, 1883,  and  promulgated  in  General  Order 
No.  310,  of  the  Navy  Department,  dated 
November  7,  1883,  men  holding  those  ratings 
in  the  service  on  December  31,  1883,  will  be 
disposed  of  as  follows,  viz:  Finishers  serving 
on  seagoing  or  other  vessels  to  be  rated  first- 
class  machinists;  those  available  on  recei\-ing 
ships  and  in  hospital  to  be  rated  second-class 
macliinists.  Boiler  makers  serving  on  sea- 
going or  other  vessels  to  be  rated  second-class 
machinists;  those  available  on  receiving  ships 
and  in  hospitals  to  be  rated  third-class  ma- 
cliinists. Engineer's  blacksmiths  and  ship's 
blacksmiths  serving  on  seagoing  or  other 
vessels  to  stand  a  competitive  examination 
as  to  their  qualifications  to  perform  general 
blacksmithing  work,  and  those  found  most 
capable  to  be  retained  as  blacksmiths;  all 
others  to  be  discharged  from  the  ser^dce, 
giving  such  as  are  entitled  thereto  the  same 
benefits  they  would  receive  had  they  served 
out  the  full  term  of  enlistment.  Armorer's 
mates,  coopers,  ship's  bakers,  and  second- 
class    painters    to    be    disrated    to    landsmen, 


850 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1569. 


or  discharged  from  the  service  should  they  so 
elect. 

The  rates  of  seamen,  E,  F.,  and  ordinary 
seamen,  E.  F.,  are  also  abolished,  and  on  and 
after  January  1,  1884,  men  for  the  engineer's 
force  will  be  enlisted  as  first  and  second  class 
firemen  and  coal  heavers.  Seamen,  E.  F., 
and  ordinary  seamen,  E.  F.,  in  the  service  on 
that  date  will  be  rated  first  and  second  class 
firemen,   respectively.     [See   G.    O.   319.] 

All  men  discharged  by  tliis  order  are  to  be 
sent  to  the  United  States  by  the  first  public 
opportunity,   if  ser\'ing  abroad,   imless   they 
desire  their   discharge   on  the  station. 
Wm.  E.  Chandler, 
Sea-etary  of  the  Navy. 


January  4,  1884. 


General  OrderI 
No.  315.  / 
The  rating  of  electrician,  the  pay  of  which 
was  fixed  by  Executive  order  of  November 
5,  1883,  promulgated  in  General  Order  No. 
310,  dated  November  7,  1883,  is  hereby  abol- 
ished. 

Wm.  E.  Chandler, 
Secretary  of  the  Navy. 


Mat  19,  1884. 


General  OrderI 
No.  319.  J 
The  closing  sentence  in  paragi-aph  2  of  Gen- 
eral Order  No.  313,  of  November  24, 1883,  should 
read  as  follows:  Seamen,  E.  F.;_  ordinary  sea- 
men, E.  F.;  and  landsmen  serving  in  the  en- 
gineer's force,  in  the  ser^dce  on  that  date,  will 
be  rated  first  and  second  class  firemen  and  coal 
heavers,  respectively. 

Wm.  E.  Chandler, 
Secretary  of  the  Navy. 


General  Orderj  November  21,  1884. 

From  and  after  Januar>^  1,  1885,  the  form  of 
honorable  discharge  from  the  naval  serA-ice, 
authorized  by  section  1427,  ReA-ised  Statutes  of 
the  United  States,  will  be  the  "honorable- 
discharge  and  contin uous-servdce  certificate." 

All  men  (except  officers'  cooks,  stewards,  and 
sen-ants  enlisted  for  special  ser\'ice)  now  ser\-- 
ing  under  enlistments  for  three  years,  or  who 
may  hereafter  enlist  for  that  period,  shall  re- 
ceive an  "honorable-discharge  and  continuous- 
service  certificate"  at  the  expiration  of  their 
terms  of  enlistment,  upon  the  recommendation 
of  their  commanding  officers. 

Any  man  holding  an  "honorable-discharge 
and  continuous-serA-ice  certificate"  who  reen- 
lists  for  three  years,  mthin  three  months  from 
the  date  of  his  last  discharge,  shall  receive  an 
increase  of  $1  per  month  to  the  pay  prescribed 
for  the  rating  in  which  he  serv^es,  for  each  con- 
secutive reenlistment,  in  addition  to  the 
"honorable-discharge  money." 

Any  man  holding  an  "honorable-discharge 
and  continuous-ser\'ice  certificate"  who  fails  to 
reenlist  within  three  months  from  date  of  last 
discharge  will  derive  no  further  advantages 
therefrom. 

The  department  directs  that  the  records  of 
conduct  and  professional  qualifications  on  the 


"enlistment  records"  shall  be  a  verification  of 
the  recommendations  for  "honorable-discharge 
and  continuous-ser\'ice  certificate,"  and  here- 
after only  those  shall  be  recommended  who 
obtain,  during  their  terms  of  enlistment,  a 
general  average  of  4. 

In  order  that  commanding  officers  of  vessels 
upon  which  men  complete  their  terms  of  enlist- 
ment shall  be  informed  as  to  the  prcAdous  merit 
of  said  men,  the  original  "Enlistment  record" 
(Form  12\  which  accompanies  an  enlisted  man 
upon  his  first  transfer,  ^vill  thereafter  be  care- 
fully preserv'ed  and  accompany  him  upon  all 
subsequent  transfers,  until  his  term  of  enlist- 
ment has  been  completed.  This  form  has  been 
amended  so  as  to  show  the  record  of  conduct 
as  averaged  by  the  commanding  officer  of  the 
vessel  for  the  period  for  which  the  man  has 
served  imder  his  command .  The  final  averages 
will  be  made  by  the  officer  under  whom  the 
man  is  sen'ing  at  the  time  his  enlistment  expires 
when  about  to  be  discharged.  These  "enlist- 
ment records  "  must  be  forwarded  to  the  Bureau 
of  Equipment  and  Recruiting. 

In  addition  to  the  above  requirements,  en- 
listed men  must  serve  at  least  two  years  and 
nine  months  of  their  terms  in  order  to  receive 
an  "honorable-discharge  and  continuous-serv- 
ice certificate, "  except  in  extraordinary  cases, 
which  will  be  pro^•ided  for  by  the  depaitment 
as  they  may  occur. 

When  any  man  holding  an  "honorable- 
discharge  and  continuous-service  certificate'' 
shall  fail  to  receive  a  recommendation  for  its 
renewal  upon  the  expiration  of  Ms  term  of  en- 
listment, the  words  "Not  entitled  to  honoral)le 
discharge"  shall  be  written  on  the  line  below 
the  last  entry.  Men  so  discharged  will  receive 
no  further  pecuniary  benefit  from  their  "honor- 
able-discharge and"  continuous-servdce  certifi- 
cate, ' '  and  entries  of  reenlistment  or  subsequent 
service  must  not  be  noted  thereon. 

"Good-conduct  badges"  are  special  distinc- 
tions for  fidelity,  zeal,  and  obedience,  and  will 
not  be  granted"  for  the  first  term  of  enlistment 
under  'continuous  service."  At  the  expira- 
tion of  subsequent  reenlistments  for  three  years, 
\vithin  three  months  from  date  of  discharge, 
men  who  hold  "honorable-discharge  and  con- 
tinuous-service certificates,"  have  obtained 
a  general  average  of  4.5  on  their  condiict  rec- 
ords, and  are  recommended  by  their  com- 
manding officers,  will  be  entitled  to  and  receive 
said  badges.  The  first  badge  will  be  a  medal, 
as  liitherto.  Subsequent  badges  to  be  clasps, 
Avith  the  name  of  the  vessel  from  which  given 
engraved  thereon,  to  be  worn  on  ribbon  above 
medal.  WTien  any  enlisted  man  shall  have  re- 
ceived three  such  badges,  under  consecutive 
reenlistments  as  above,  he  shall  be  enUsted  as 
a  petty  officer  in  the  rating  in  which  he  is  ba^t 
qualified  to  serve,  and  shall  continue  to  hold  a 
petty  officer's  rating  during  subsequent  con- 
tinuous reenlistments,  and  shall  not  be  reduced 
to  a  lower  rating  except  by  sentence  of  court- 
martial. 

Paragraphs  18  and  20,  page  100,  and  para- 
graph 22,  page  101,  United  States  Navy  Regu- 
lations, are  hereby  annulled. 

Wm.  E.  Chandler, 
Secretary  of  the  Navy. 


851 


Sec.  1569. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


TJ.  S.  Navy  Regulation  1 
Circular  No.  41.     j 

January  8,  1885. 

The  following  classification  of  petty  officers 
and  enlisted  men  in  the  Navy  and  of  noncom- 
missioned officers,  musicians,  and  privates  in 
the  Marine  Corps  is  herein'  adopted. 

Wm.  *E.  Chandler, 
Secretary  of  the  Navy. 

Classification. 
PETTY  OFFICERS,  FIRST  CLASS. 


Seaman  class. 


Chief  boat- 
swains' 
mates. 

Chief  quarter- 
masters. 

Chief  gimners' 
mates. 


Special  class. 


Master-at-arms. 

Equipment  yeo- 
men. 

Apothecaries. 

Paymaster's  yeo- 
men. 

Engineer's  yeo- 
men. 

Ships'  writers. 

Schoolmasters. 

Bandmasters. 


Artificer 
class. 


Machinists. 


Marines. 


Sergeants 
major. 
First  ser- 
geants. 


PETTY  OFFICERS,  SECOND  CLASS. 


Boatswains' 

Ships'  corporals. 

Boilermak- 

Sergeants. 

mates. 

Ships'  coolis. 

ers. 

Quartermas- 

Chiefmusicians. 

Armorers. 

ters. 

Carpenters' 

Gunners' 

mates. 

mates. 

Black- 

Coxswains  to 

smiths. 

commander 

Sailmaker's 

in  chief. 

mates. 
Water  tend- 
ers. 

PETTY  OFFICERS,  THIRD  CLASS. 


Captains  of 
forecastle. 

Captains  of 
maintop. 

Captains  of 
foretop. 

Captains  of 
mizzen  top. 

Captains  of 
after  guard. 

Coxswains. 

Quarter  gun- 
ners. 

Seamen  gun- 
ners. 


Captains  of  hold. 


Printers. 
Painters. 
Oilers. 


Corporals. 


SEAMEN,  FIRST  CLASS. 


Seamen. 
Seamen,    ap- 
•  pren  t  ice, 
nrst  class. 


LampUghters. 
Jaeks-of-the-dust 
Buglers. 
Musicians,  first 

class. 
TaUors. 
Barbers. 


Firemen,  :  Musicians. 

first  class.    OrderUes. 

Carpenters. 

Calkers. 


SEAMEN,  SECOND  CLASS. 


Ordinary  sea- 
men. 

Seamen,  ap- 
pren  tice , 
second  class. 


Baymen. 
Musicians. 


Firemen, 
sec  on  d 
class. 


Privates. 


SEAMEN,  THIRD  CLASS. 


Seaman  class. 

Special  class. 

Artificer 
class. 

Marines. 

Landsmen. 

Coal  heav- 

Apprentices, 

ers. 

first  class. 

Apprentices, 

second  class. 

Apprentice  s. 

third  class. 

Boys. 

Messmen,  stewards,  cooks,  and  attendants. 


General  Order\ 
No.  330.  / 


December  31,  1884. 


The  following  Executive  order  is  published 
for  the  information  and  guidance  of  all  con- 
cerned. 

Wm.  E.  Chandler, 
Secretary  of  the  Navy. 


Executive  Mansion, 

December  31,  1884. 

The  Executive  order  of  November  4,  1883,  ia 
hereby  modified  as  follows: 

The  ratings  of  first,  second,  and  third  class 
machinists  are  abolished,  and  hereafter  there 
will  be  no  rating  of  machinist  in  the  Navy, 
with  the  pay  of  $70  a  month. 

New  ratings  are  hereby  establislied  as  follows: 


Rating. 

Monthly 
pay. 

BoUer  maker 

Sfif)  00 

Water  tenders 

38  00 

Oilers 

36  00 

Chief  musician 

36  00 

Chester  A.  Arthur. 


General  Order  1 
No.  341.        / 

Navy  Department, 
Washington,  January  1,  1886. 

General  Orders  Nos.  272  and  281,  relating  to 
seamen  gunners,  are  hereby  modified  as  follows: 

Hereafter  seamen  gunners  will  not  be  classed 
with  petty  officers,  but  with  seamen,  first  class, 
and  all  seamen  who  pass  through  the  Ordnance 
School  of  Instruction  at  Newport  and  Washing- 
ton will  be  rated  seamen  gunners,  upon  the 
completion  of  the  course,  and  can  not  be  reduced 
to  a  lower  rating  except  by  sentence  of  a  court- 
martial. 

The  words  "qualified  as  seamen  gunner  "  will 
be  written  in  red  ink  across  the  face  of  the  con- 
tinuous-service certificate  of  each  person  cjuali- 
fied  as  above,  and  signed  by  the  inspector  of 
ordnance  of  the  stations  at  Newport  and  Wash- 
ington when  the  course  is  completed,  with  the 
date  of  its  completion. 

The  same  indorsement  will  be  placed  on  the 
continuous-seridce  certificate  of  any  enlisted 
petty  officer  who  may  pass  through  the  course. 

All  petty  officers  of  the  line,  armorers,  ma- 
chinists and  lamplighters  employed  in  connec- 
tion with  electrical  plant  will  hereafter  be  se- 
lected exclusively  from  seamen  gunners  when 
available. 


852 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1569. 


Men  having  qualified  as  seamen  gunners  can 
reenlist  as  such,  even  if  not  enlisted  under  con- 
tinuous-ser\ice  certificate,  on  giving  satisfac- 
tory eAddence  that  they  have  so  qualified. 

The  pay  of  seamen  gunners  hereafter  will  be 
$26  per  month. 

William  C.  Whitney, 

Secretary  of  the  Navy. 


Rating. 


General  Order\ 

No.  346.         /  April  20,  1886. 

Hereafter  enlisted  men  of  the  Navy  not  under 
instruction  at  Newport  or  Washington  when 
employed  in  submarine  dicing  will  receive 
extra  compensation  at  the  rate  of  $1  for  each 
hour  so  employed  under  water.  Breathing 
time  and  other  time  necessary  out  of  water  will 
not  be  deducted  if  not  exceeding  15  minutes, 
or  one-fifth  of  the  whole  time  immersed. 

Such  compensation  is  to  be  charged  to  the 
bureau  for  which  the  service  is  performed. 
Wm.  C.  Whitney, 

Secretary  of  the  Navy. 


General  Order"! 
No.  409.        j 

Navy  Department, 
Wasbington,  February  25,  1893. 
The  following  Executive  order  is  pulilished 
for  the  information  and  guidance  of  all  persons 
concerned. 

B.  F.  Tracy, 
Secretary  of  the  Navy. 

Executive  Mansion, 
Washington,  D.  C,  February  25, 1893. 
On  and  after  the  1st  day  of  April,  1893,  the 
pay  of  the  pettv  ofiicers  and  other  enlisted  men 
of  the  Navy  shall  be  as  follows,  but  this  order 
shall  not  reduce  the  pay  or  rating  of  any  en- 
listed man  during  his  present  enlistment  below 
the  rate  or  pay  at  which  he  was  enlisted  or  in 
which  he  is  now  serving,  unless  he  shall  be 
reduced  in  rating  as  provided  by  law  or  regula- 
tions: 


Rating. 


Chief  masters-at-arms 

Chief  boatswains'  mates -. . . 

Chief  gunners'  mates 

Chief  quartermasters 

Masters-at-arms,  first  class 

Boatswains'  mates,  first  class 

Gunners'  mates,  first  class 

Quartermasters,  first  class 

Schoolmasters 

Masters-at-arms,  second  class 

Boatswains'  mates,  second  class. 

Gunners'  mates,  second  class 

Quartermasters,  second  class 

Masters-at-arms,  tliird  class 

Coxswainsi 

Gunners'  mates,  third  class 

Quartermasters,  third  class 

Seamen  gunners 

Seamen  2 

Apprentices,  first  class 

Ordinary  seamen 

Apprentices,  second  class 

Landsmen^ 

Apprentices,  third  class 

Machinists 

Chief  carpenters'  mates 

Boiler  makers 

Coppersmiths 


Monthly 
pay. 


$65.00 
50.00 
50.00 
50.00 
40.00 
40.00 
40.00 
40.00 
40.00 
35.00 
35.00 
35. 00 
35.00 
30.00 
30.00 
30.00 
30. 00 
26.00 
21.00 
21.00 
19.00 
15.00 
16.00 
9.00 
70.00 
50.00 
60.00 
50.00 


Blacksmiths 

Carpenters'  mates,  first  class 

Plumbers  and  fitters 

Water  tenders 

Sailmakers'  mates 

Oilers 

Carpenters'  mates,  second  class 

Printers 

Painters 

Carpenters'  mates,  third  class 

Firemen,  first  class 

Firemen,  second  class 

Shipwrights 

Sailmakers 

Coal  passers 

Bandmasters 

Yeomen 

Apothecaries 

Writers,  first  class 

First  musicians 

Writers,  second  class 

Writers,  third  class 

Musicians,  first  class 

Musicians,  second  class 

Buglers 

Baymen 

Ships'  cooks,  first  class 

Ships'  cooks,  second  class 

Ships'  cooks,  third  class 

Ships'  cooks,  fourth  class 

Stewards  to  commanders  in  chief. . 

Stewards  to  commandants 

Cabin  stewards 

Wardroom  stewards 

Steerage  stewards 

Warrant  officers'  stewards 

Cooks  to  commanders  in  chief 

Cooks  to  commandants 

Cabin  cooks 

Wardroom  cooks 

Steerage  cooks 

Warrant  officers'  cooks 

Mess  attendants 


Monthly 
pay. 


$.50. 00 
40.00 
45.00 
38.00 
40.00 
36.00 
35.00 
35.00 
30.00 
30.00 
35.00 
30.00 
25. 00 
25.00 
22.00 
52.00 
60.00 
60.00 
35.00 
36.00 
30.00 
25.00 
32.00 
30.00 
30.  Ot) 
18.00 
35.00 
30.00 
2.5.00 
20.00 
45.00 
45.00 
37.00 
37.00 
25.00 
24.00 
40.00 
40.00 
32.00 
32.00 
22.00 
20.00 
16.00 


1  Coxswains  detailed  as  coxswains  of  steam  launches  or 
as  coxswains  to  commanders  in  cliief  shall  receive  So  per 
month  in  addition  to  their  pay. 

2  Seamen  in  charge  of  holds  shall  receive  $5  per  month 
in  addition  to  their  pay. 

3  Landsmen  assigned  to  duty  as  jacks-of-the-dust  or  as 
lamplighters  shall  receive  So  per  month  in  addition  to 
their  pay. 

Benj.  Harrison. 


General  Order"! 
No.  448.        J 

Navy  Department, 
Washington,  D.  C,  June  17,  1895. 
The  following  Executive  order  is  published 
for  the  information  and  guidance  of  all  persons 
concerned. 

H.  A.  Herbert,  Secretary. 

Executive  Mansion, 
Washington,  D.  C,  June  15,  1895. 
On  and  after  July  1,  1895,  the  pay  of  ma- 
chinists, water  tenders,  oilers,  and  wTiters  in 
the  Navy  shall  be  as  follows,  but  this  order  shall 
not  reduce  the  pay  of  any  enlisted  man  during 
his  present  enlistment  below  the  pay  at  which 
he  was  enlisted,  or  which  he  is  now  receiving: 

Per  month. 

Chief  machinists §70.  00 

Machinists,  first  class 55. 00 

Machinists,  second  class 40. 00 

W^ater  tenders 40. 00 

Oilers 37.00 

Writers,  first  class 40.00 

Writers,  second  class 35. 00 

Writers,  third  class. 30. 00 

Grovee  Cleveland. 


853 


Sec.  1569. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


General  Order"! 
No.  467.        / 

Navy  Department, 
Washington,  D.  C,  September  19,  1896. 

The  follovrinn:  Executive  order  is  published 
for  the  information  of  all  persons  concerned. 
W.  McAdoo,  Acting  Secretary. 

Executive  Mansion, 
Washington,  D.  C,  September  16,  1896. 
On  and  after  October  1,  1896,  the  pay  of 
yeomen  in  the  Navy  shall  be  as  follows,  but 
this  order  shall  not  reduce  the  pay  of  any  en- 
listed men  during  his  present  enlistment  l)elow 
tlie  pay  at  which  he  was  enlisted,  or  which  he 
is  now  receiving: 

Per  month. 

Chief  yeomen $60. 00 

Yeomen,  first  class 40. 00 

Yeomen,  second  class -•    35. 00 

Yeomen,  third  class 30. 00 

Grover  Cleveland. 


General  OrderI 
No.  486. 

Navy  Department, 

Washington,  April  8,  1898. 

The  following  Executive  order  is  published 
for  the  information  and  guidance  of  all  persons 
concerned . 

John  D.  Long,  Secretary. 

Executive  Mansion, 

Washijigton,  April  8,  1898. 

On  and  after  this  date,  the  pay  of  electricians 
in  the  Navy  shall  be  as  follows,  but  this  order 
shall  not  reduce  the  pay  of  any  enlisted  man 
during  his  present  enlistment  below  the  pay  at 
which  he  was  enlisted,  or  which  he  is  now 
receiving: 

Per  month. 

Chief  eleciricians $50. 00 

Electricians,  first  class 40.  00 

Electricians,  second  class 35.  00 

William  McKinley. 


General  Order! 
No.  520.        / 

Navy  Department, 
Washington,  June  30,  1899. 

The  following  instructions  are  issued  gov- 
erning (1)  qualifications  for  instruction  and 
(2)  the  detail,  (3)  the  classification  and  (4) 
the  rating  of  gun  captains,  and  (5)  the  award 
of  gunnery  prizes  to  men  holding  gun-cap- 
tain's certificates. 

1.  Qualification. — (a)  Men  who  have  at- 
tained special  proficiency  as  marksmen  with 
great  guns  or  small  arms,  or  whose  superior 
intelligence  fits  them  to  acquire  such  pro- 
ficiency, and  who,  by  force  of  character  and 
ability  to  command,  are  suitable  to  fill  the 
ratings  of  gun  captains.  (6)  No  person  shall 
be  detailed  who  is  not  a  citizen  of  the  United 
States. 


2.  Details  for  instruction  vAW  be  made 
from  the  following:  (a)  Apprentices,  first 
class,  in  the  la.st  year  of  their  enlistments 
having  not  less  than  six  months  to  serve,  (ft) 
Seamen,  (c)  Men  and  apprentices  holding 
either  acting  or  permanent  appointments 
as   coxswains  or  quartermasters,    third   class. 

3.  Classification. — Upon  the  completion  of 
the  course  of  instruction  on  board  the  gunnery 
training  ship,  the  percentage  attained  by 
each  man  shall  be  reported  to  the  Bureau  of 
Navigation,  which  will  issue  gun-captain's 
certificates    in    three    classes,    namely: 

"A"  certificate,  to  men  who  have  attained 
a  proficiency  of  90  per  cent  and  over. 

"B"  certificate,  to  men  who  have  attained 
a  proficiency  of  75  to  90  per  cent. 

"C"  certificate,  to  men  who  have  attained 
a  proficiency  of  60  to  75  per  cent. 

Certificates  will  not  be  issued  to  men  whose 
proficiency  is  less  than  60  per  cent. 

4.  Rating. — Apprentices,  first  class,  and 
seamen  holding  gun-captaiiis's  certificates 
shall  be  advanced  only  through  the  ratings 
of  coxswain  and  quartermaster,  third  class, 
and  must  have  not  less  than  a  4  in  signaling. 

No  man  shall  be  given  an  acting  appoint- 
ment as  a  gun  captain,  second  class,  who 
does  not  hold  a  gun-captain's  certificate,  and 
petty  officers,  third  class,  holding  gun-cap- 
tain's certificates  and  gun  captains,  second 
and  first  classes,  shall  not  be  promoted  or 
transferred  into  any  other  than  the  gun-cap- 
tain branch. 

All  appointments  and  advancements  of 
gun  captains  and  men  holding  gun-captain's 
certificates  shall  be  in  accordance  with  the 
Navy  Regulations  and  the  instructions  gov- 
erning appointments  and  advancements  of 
petty  officers. 

5.  Award  of  prizes. — Commanding  officers  are 
directed  to  award  to  men  holding  gun-cap- 
tain's certificates  gunnery  prizes    as  follows: 

To  men  holding  "A"  certificates,  $3  per 
month. 

To  men  holding  "B"  certificates,  %2  per 
month. 

To  men  holding  "C"  certificates,  $1  per 
month. 

The  holder  of  a  gun-captain's  certificate 
shall  be  paid  the  award  monthly,  or  propor- 
tionately for  a  fractional  part  of  any  month 
(computed  in  the  same  manner  as  pay,  except 
that  he  shall  not  be  credited  with  this  award 
for  time  out  of  service  between  enlistments), 
from  date  of  completion  of  course  of  instruc- 
tion; and  it  shall  continue  throughout  his 
current  enlistment  and  each  succeeding  re- 
enlistment  under  honorable  discharge,  if 
within  four  months,  until  he  shall  be  promoted 
to  gun  captain,  second  class,  on  which  date 
the  award  shall  cease.  The  award  shall  be 
paid  by  the  pay  officers,  on  public  bills,  under 
the  appropriation:  "Gunnery  exercises — 
Bureau  of  Navigation." 

6.  Gun  captains,  having  been  trained  as 
leading  men,  may  be  assigned,  class  for  class, 
to  fill  any  vacancy  in  the  complement  of  a 
ship  in  the  seaman  branch,  excepting  vacan- 
cies for  gunner's  mates,  but  their  ratings  shall 
not  be  changed. 

John  D.  Long,  Secretary. 


854 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1569. 


General  OrderI 
No.  532.       J 

Navy  Department, 
Washington,  November  24,  1899. 
The  department  publishes  for  the  informa- 
tion of  the  ser\'ice  the  following  Executive 
order. 

John  D.  Long,  Secretary. 

Executive  Mansion, 
Washington,  D.  C,  November  4,  1899. 
On  and  after  November  4,  1899,  petty  officers 
of  the  Navy,  performing  duty  which  deprives 
them  of  quarters,  and  their  rations  or  commu- 
tation thereof,  shall  receive  $9  per  month  in 
addition  to  the  pay  of  their  rating. 

William  McKinley. 


Rating. 


General  Order"! 
No.  552.         / 

Navy  Department, 
Washington,  June  28,  1900. 
The  following  Executive  order  is  published 
for  the  information  and  guidance  of  all  persons 
concerned. 

John  D.  Long,  Secretary. 

Executive  Mansion, 

Washington,  June  27,  1900. 

On  and  after  the  1st  day  of  July,  1900,  the 
classification  and  pay  of  the  rating  of  elec- 
tricians shall  be  as  follows,  but  this  order  shall 
not  reduce  the  pay  of  any  enUsted  man  during 
his  present  enUstment  below  the  pay  at  which 
he  was  enlisted,  or  which  he  is  now  receiving: 

Per  month. 

Electrician,  third  class $30.  00 

Electrician,  second  class 40.  00 

Electrician,  first  class 50.  00 

Chief  electrician 60.  00 

William  McKinley. 


General  Order"! 
No.  20.  J 

Navy  Department, 
Washington,  January  1,  1901. 
By  authority  of  the  President  the  depart- 
ment publishes  the  rates  and  pay  of  the  en- 
listed men  of  the  Navy  as  follows,  but  this  order 
shall  not  reduce  the  pay  or  rating  of  any  en- 
listed man  during  his  present  enUstment  below 
the  rate  or  pay  at  which  he  was  enhsted  or  in 
which  he  is  now  ser\'ing,  unless  he  shall  be 
reduced  in  rating  as  provided  by  law  or  regu- 
lation. 

John  D.  Long,  Secretary. 


Executive  order. 


Jan.  1,1901. 


Rating. 


Chief  master-at-arms 

Chief  boatswains'  mates 

Chie  f  gimne.rs'  mates 

Chief  gun  captains 

Chief  quartermasters 

Master-at-arms,  first  class 

Boatswains'  mates,  first  class 
Gimners'  mates,  first  class — 
Gun  captains,  first  class 


Month!  }• 
pay. 


$G5. 00 
50.00 
50.00 
50.00 
50.00 
40.00 
40.00 
40.00 
40.00 


Quartermasters,  first  class. 


Master-at-arms,  second  class 

Boatswains'  mates,  second  class.. . 

Gimners' mates,  second  class 

Gun  captams,  second  class 

Quartermasters,  second  class 

Master-at-arms,  tliird  class 

Coxswains 

Gunners'  mates,  third  class 

Quartermasters,  third  class 

Seamen  gunners 

Seamen 

Apprentices,  first  class 

Ordinary  seamen 

Apprentices,  second  class 

Landsmen 

Apprentices,  third  class 

Chief  machinists 

Chief  electricians 

Chiief  carpenters'  mates 

Boilermalcers 

Machinists,  first  class 

Electricians,  first  class 

Coopersmiths 

Blacksmiths 

Plumbers  and  fitters 

Sailmakers'  mates 

Carpenters'  mates,  first  class 

Water  tenders 

Machinists,  second  class 

Electricians,  second  class 

Oilers 

Carpenters'  mates,  second  class — 

Printers 

Carpenters'  mates,  third  class 

Electricians,  tliird  class 

Painters 

Firemen,  first  class 

Firemen,  second  class 

Sliipwrights 

Coal  passers 

Chief  yeomen 

Hospital  stewards 

Bandmasters 

Yeomen,  first  class 

First  musicians 

Yeoman,  second  class 

Yeomen,  tiiird  class 

Hospital  apprentices,  first  class... . 

Musicians,  first  class 

Musicians,  second  class 

Buglars 

Hospital  apprentices 

Stewards  to  commanders  in  chief. 

Cooks  to  commanders  in  chief 

Stewards  to  commandants 

Cooks  to  commandants 

Cabin  stewards 

Cabin  cooks 

Wardroom  stewards 

Wardroom  cooks 

Steerage  stewards 

Steerage  cooks 

Warrant  officers'  stewards 

Warrant  officers'  cooks 

Ships'  cooks,  first  class 

Ships'  cooks,  second  class 

Ships'  cooks,  third  calss 

Ships'  cooks,  fourth  class 

Mess  attendants 


Monthly 


$40.00 
35.00 
35.00 
35.00 
35.  00 
35. 00 
30.00 
30.00 
30.00 
30.00 
26.00 
24.00 
21.00 
19.00 
15.  00 
16.00 
9.00 
70.00 
60.00 
50.00 
60.00 
55.00 
50.00 
50.00 
50.00 
45.00 
40.00 
40.00 
40.  00 
40.00 
40.00 
37. 00 
35.00 
35.00 
30.00 
30.00 
30.00 
35.00 
30.00 
25.00 
22.00 
60.00 
60.00 
52.00 
40.00 
36.00 
35.00 
30.00 
30.00 
32.00 
30.00 
30.00 
20.00 
45.00 
40.00 
45.00 
40.00 
37.00 
32.00 
37.00 
32.00 
25.00 
22.00 
24.00 
20.00 
35.00 
30.00 
25.00 
20.00 
16.00 


1.  Petty  officers  of  the  Navy  performing  duty 
which  deprives  them  of  quarters  and  their 
rations,  or  commutation  thereof,  shall  receive 
.$9  per  month  in  addition  to  the  pay  of  their 


rating 


2.  All  enlisted  men  of  the  Navy  shall  receive 
$5  per  month,  in  addition  to  their  pay,  while 
serving  on  board  of  submarine  vessels  of  the 

Navy.  .        r  ,      . 

3  Coxswains,  detailed  as  coxswains  of  boats 
propelled  l)y  machinery,  or  as  coxswains  to 
commanders  in  chief,  shall  receive  $5  per  month 
in  addition  to  their  pay. 


855 


Sec.  1569. 


Pt.  -2.  REVISED  STATUTES. 


The  Navy. 


4.  Seamen  in  charge  of  holds  shall  receive  $5 
per  month  in  addition  to  their  pay. 

5.  Lanilsmen  assigned  to  duty  as  jacks-of-the- 
dust  or  as  lamplightei-s  shall  receive  $5  per 
month  in  addition  to  their  pay. 

6.  Any  man  who  has  received  an  honorable 
discharge  from  his  last  term  of  enlistment,  or 
who  has  received  a  recommendation  for  reen- 
listment  upon  the  expiration  of  his  last  term  of 
ser\'ice  of  not  less  than  three  years,  who  reen- 
lists  for  a  term  of  four  years  \nthin  four  months 
from  the  date  of  his  discharge,  shall  receive  an 
increase  of  $1.36  per  month  to  the  pay  pre- 
scribed for  the  rating  in  which  he  serves,  for 
each  consecutive  reenlistment. 

7.  Twenty  cents  per  month  is  deducted  from 
the  pay  due  each  officer,  seaman,  and  marine 
in  the  Navy,  to  be  applied  to  the  fund  for  naval 
liospitals. 

8.  Mess  attendants  serving  in  the  Navy  who 
are  honorably  discharged  from  service  shall 
receive  S20  as  monthly  pay  of  their  rating  dur- 
ing first  reenlistment,  and  $24  as  monthly  pay 
during  second  reenlistment,  and  during  each 
continuous  reenlistment  thereafter  under  hon- 
orable discharge,  provided  that  service  prior  to 
January  1,  1898,  shall  not  be  computed  in 
determining  increase  of  pay,  and  pro\dded 
further,  that  the  monthly  pay  of  the  rating  of 
mess  attendants  shall  not  exceed  $24  per  month, 
exclusive  of  additional  compensation  for  con- 
tinuous service. 

William  McKinley. 


General  Order\ 
No.  40.         / 

Navy  Department, 
Washington,  April  8,  1901. 
The  department  publishes  for  the  informa- 
tion and  guidance  of  the  service  the  folloA\dng 
Executive  order,  authorizing  the  insular  force, 
United  States  Navy,  and  designating  the  rat- 
ings and  rates  of  pay  therein; 

Executive  Mansion,  April  5,  1901. 

The  Secretary  of  the  Navy  is  authorized  to 
enlist  in  the  insular  force.  United  States  Na\'y, 
which  is  hereby  established,  not  to  exceed 
500  Filipinos  in  the  following  ratings  and  at 
the  rates  of  pay  indicated; 

Insular  force,  United  States  Navy. 


Rates. 

Monthly 
pay. 

Native  coxswaias 

$15.00 
12.00 
10  00 

Native  seamen 

Native  ordinary  seamen 

Native  machinists,  first  class 

28  00 

Native  machinists,  second  class 

20  00 

Native  firemen,  first  class. 

18.  CO 
15  00 

Native  firemen,  second  class 

Native  coal  passers 

11.00 

15.00 

13.00 

8.00 

Native  .stewards 

Native  cooks 

Native  mess  attendants 

William  McKinley. 
John  D.  Long,  Secretary. 


General  Order"! 
No.  61.  / 

Navy  Department, 
Washington,  October  17,  1901. 
The  following  Executive  order  is  published 
for  the  information  and  guidance  of  the  service: 

On  and  after  January  1,  1902,  the  following 
ratings  and  pay  per  month  are  established  for 
the  petty  officers  and  other  enlisted  men  of  the 
commissary  branch  of  the  United  States  Navy: 


Chief  commissary  steward 

Commissary  steward , 

Ship's  cook,  first  class 

Ship's  cook,  second  class. 

Ship's  cook,  tliird  class 

Ship's  cook,  fourth  class. . . 

Baker,  first  class 

Baker,  second  class 


$70.00 
60.00 
55.00 
40.00 
30.00 
25.00 
45.00 
35.00 


Landsmen  detailed  as  crew  messmen  shall, 
while  so  acting,  except  when  assigned  as  re- 
liefs during  the  temporary  absence  of  the  re- 
giilar  crew  messmen,  receive  extra  compensa- 
tion at  the  rate  of  $5  per  month. 

(Signed)  Theodore  Roosevelt. 

John  D.  Long,  Secretary. 


General  OrderI 
No.  69.  / 

Navy  Department, 
Washington,  December  2,  1901. 
The  following  Executive  order  is  published 
for  the  information  and  guidance  of  the  naval 
service: 

executive  order. 

White  House,  November  26,  1901. 
From  and  after  January  1,  1902,  all  en- 
listed men  of  the  Navy  will  be  allowed  75 
cents  per  month  in  addition  to  the  pay  of 
their  ratings  for  each  good  conduct  medal, 
pin,  or  bar  issued  for  services  terminating 
after  December  31,  1901. 

Theodore  Roosevelt. 
John  D.  Long,  Secretary. 


General  Order"! 
No.  70. 

Navy  Department, 
Washington,  Decembers,  1901. 
The  following  Executive  order  is  published 
for  the  information  and  guidance  of  the  naval 
service: 

White  House,  December  3,  1901. 
From  and  after  January  1,  1902,  each  en- 
listed man  of  the  Navy  who  holds  a  certificate 
as  a  graduate  from  the  Petty  Officers'  School 
of  Instruction,  Naval  Training  Station,  New- 
port, R.  I.,  shall  receive  $2  per  month  in 
addition  to  the  pay  of  his  rating. 


Theodore  Roosevelt. 
John  D.  Long,  Secretary. 


856 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1569. 


General  Order! 
No.  73.  / 

Navy  Department, 
Washington,  December  11,  1901. 
The  department  publishes  for  the  informa- 
tion and  guidance  of  the  service  the  following 
Executive  order: 

White  House,  December  9,  1901. 
From  and  after  January  1,  1902,  the  classi- 
fication and  monthly  pay  of  mess  attendants 
in  the  U.  S.  Navy  shall  be  as  follows: 

Mess  attendants,  first  class $24.00 

Mess  attendants,  second  class 20.00 

Mess  attendants,  third  class 16.00 

T.  Roosevelt. 

John  D.  Long,  Secretary. 


General  OrderI 
No.  76.  / 

Navy  Department, 
Washington,  December  26,  1901 . 
Paragi-aph  8  of  General  Order  No.  20,  dated 
January  1,  1901,  is  hereby  rescinded,  and  pay 
officers  are  authorized  to  check  all  amounts 
which  have  been  credited  to  mess  attendants 
in  excess  of  $16,  in  compliance  with  the  pro- 
visions of  that  paragraph.  This  order  does 
not  apply  to  the  $1.36  per  month  allowed  by 
law  for  consecutive  reenlistments. 

All  mess  attendants  now  in  the  service 
shall  be  rated  mess  attendants,  third  class, 
on  January  1,    1902. 

John  D.  Long,  Secretary. 


Generai,  OrderI 
No.  79.         / 

Navy  Department, 
Washington,  January  7,  1902. 

The  following  Executive  order,  modifying 
General  Order  No.  61  of  October  17,  1901,  is 
published  for  the  information  and  guidance 
of  the  service: 

White  House, 
Washington,  January  7,  1902. 

Executive  order,  dated  October  15,  1901, 
establishing  ratings  and  pay  for  enlisted  men 
of  the  commissary  branch  of  the  U.  S.  Navy, 
is  so  far  modified  as  to  change  the  first  word 
in  the  footnote  from  "Landsmen"  to  "En- 
listed men." 

Theodore  Roosevelt. 

John  D.  Long,  Secretary. 


General  Order\ 
No.  91.  J 

Navy  Department, 
Washington,  June  25,  1902. 

The    following    Executive    order,    affecting 
General  Orders  Nos.  69  and  70,  is  published 


for  the  information  and  guidance  of  the  serv- 
ice: 

White  House,  June  24,  1902. 

Executive  order  of  November  26,  1901, 
relative  to  additional  compensation  for  en- 
listed men  of  the  Navy  holding  good-conduct 
medals,  pins,  or  bars,  and  Executive  order  of 
December  3,  1901,  relative  to  additional 
compensation  for  enlisted  men  holding  cer- 
tificates as  graduates  from  the  petty  officers' 
School  of  Instruction,  are  hereby  revoked, 
to  take  effect  July  1,  1902,  from  which  date 
the    following   substitutes    shall    take    effect: 

Each  enlisted  man  of  the  Navy  shall  receive 
75  cents  per  month,  in  addition  to  the  pay  of 
his  rating,  for  each  good-conduct  medal,  pin, 
or  bar  which  he  may  heretofore  have  been,  or 
shall  hereafter  l)e,  awarded. 

Each  petty  officer  holding  a  certificate  of 
graduation  from  the  Petty  Officers'  School  of 
Instruction,  or  as  gun  captain,  or  both,  shall 
receive  $2  a  month  in  addition  to  the  pay  of 
his  rating. 

Theodore  Roosevelt. 

William  H.  Moody,  Secretary. 


Gener.\l  Order 
No.  94. 

Navy  Department, 
Washington,  July  8,  1902. 

The  Department  publishes  for  the  guidance 
of  the  service  the  information  that  the  naval 
appropriation  bill,  approved  July  1,  1902,  for 
the  fiscal  year  1903,  provides  for  outfits  at  $45 
each,  for  naval  apprentices,  hospital  appren- 
tices, landsmen  under  training  for  seamen,  and 
all  other  enlisted  men  of  the  Navy,  on  first 
enlistment. 

William  H.  Moody,  Secretary. 


General  Order"! 
No.  101.        i 

Navy  Dep.^rtment, 
Washington,  August  I,  1902. 

The  following  Executive  order,  supplement- 
ing General  Order  No.  91,  dated  June  25,  1902, 
is  published  for  the  information  and  guidance 
of  the  service: 

White  House,  August  1,  1902. 

From  and  after  July  1,  1902,  each  enlisted 
man  that  has  been  rated  seaman  gunner  prior 
to  April  1,  1902,  or  that  holds  a  certificate  of 
graduation  from  the  petty  officers'  school,  sea- 
man gunner  class,  shall  receive  $2  per  month 
in  addition  to  the  pay  of  his  rating  during 
current  and  subsequent  enlistments. 

Theodore  Roosevelt. 

Chas.  H.  Darling, 

Acting  Secretary. 


857 


Sec.  1569. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


General  Ordeu'1 
No.  102.        / 

N.WY  Dep.\rtment, 
Washington,  August  6,  1902. 

1.  The  followius:  Executive  order  is  puli- 
lished  for  the  iuformatiou  and  guidance  of  the 
ser\dce: 

White  House, 
Washington,  D.  C,  August  4,  1902. 

From  and  after  this  date  the  following  ratings 
and  rates  of  pay  for  same  are  established  in  the 
naval  service: 

Ship  litter,  first  class,  $55. 

Ship  litter,  second  class,  $40. 

Men  enlisted  in  these  ratings  to  be  petty 
officers,  first  or  second  class,  respectively. 

Theodore  Roosevelt. 

2.  The  complements  of  all  vessels  of  the  first 
and  second  rate  are  amended  so  as  to  include 
one  ship  fitter,  first  class,  and  one  ship  fitter, 
second  class.  Vessels  of  the  third  rate  are  al- 
lowed one  ship  fitter,  second  class. 

3.  The  specialty  work  on  the  rating  badge 
for  ship  fitter  shall  be  the  same  as  that  for 
blacksmiths. 

Ch.\s.  H.  Darling, 

Acting  Secretary. 


General  Order! 
No.  10.3.        / 

Navy  Department, 

Washington,  August  18,  1902. 
The  following  Executive  order  is  published 
for  the  information  and  guidance  of  the  service: 

White  House,  August,  13,  1902. 
From  and  after  this  date  the  following  ratings 
and  rates  of  pay  per  month  are  established : 

Painters,  first  calss $40.  00 

Painters,  second  class 35.  00 

Painters,  third  class 30.  00 

Stewards,  for  commander    in  chief    or 

commandants 60.  00 

Cooks,  for  commander  in  chief  or  com- 
mandants      50. 00 

Cabin  and  wardroom  stewards 50.  00 

Cabin  and  wardroom  cooks 45.  00 

Steerage  and  warrant  officers'  stewards.     35.  00 
Steerage  and  warrant  officers'  cooks...     30.  00 

Coopersmiths 55.  00 

Boiler  makers 65.  00 

Theodore  Roosevelt. 

All  painters  now  in  the  service  will  be  rated 
painters,  third  class.  All  painters  that  have 
served  two  years  satisfactorily  in  that  rating 
with  an  average  of  at  least  4  in  proficiency  in 
rating,  conduct,  and  sobriety,  and  establish 
their  qualifications  by  a  practical  examination, 
may  be  rated  painters,  second  class. 

Painters,  second  class,  -will  be  required  to 
serve  one  year  in  that  rating,  with  an  average 
of  at  least  4  in  proficiency  in  rating,  conduct, 
and  sobriety,  before  being  rated  painters,  first 
class. 

Chas.  H.  Darling, 

Acting  Secretary. 


General  Order"! 
No.  108.        / 

Navy  Department, 
Washington,  September  11,  1902. 
The  following  Executive  order  is  published 
for  the  information  and  guidance  of  the  service. 

White  Hou.'^e,  September  4,  1902. 
Executive  orders  of  June  25,  1902,  and 
August  4,  1902,  are  hereby  rescinded,  and  from 
and  after  July  1,  1902,  every  enlisted  man  and 
apprentice  who  has  been  rated  a  seaman  gun- 
ner, or  holds  a  gun-captain's  certificate,  or  a 
certificate  of  graduation  from  one  or  more 
classes  of  the  Petty  Oflicers'  School  of  Instruc- 
tion, shall  receive  $2  per  month  in  addition  to 
the  pay  of  his  rating  for  each  such  certificate, 
viz: 

Per 
For  certificate  as  seaman  gunner,  or  from  month. 

seaman  gunner  class $2.  00 

For  certificate  as  gun  captain,  or  from 

gun  captain  class 2.  00 

For  certificate  from  petty  officer  class. . .  2.  00 

For  certificate  from  artificer  class 2.  00 

For  certificate  from  machinist  class 2.  00 

For  certificate  from  electrical  class 2.  00 

Every  enlisted  man  of  the  Navy  shall  receive 
75  cents  per  month,  in  addition  to  the  pay  of 
his  rating,  for  each  good-conduct  medal,  pin, 
or  bar  which  he  may  heretofore  have  been  or 
shall  hereafter  be  awarded. 

Theodore  Roosevelt. 

All  men  who  successfully  complete,  or  have 
completed,  the  prescribed  course  in  any  of  the 
above-mentioned  classes,  and  have  been  re- 
ported qualified,  will,  upon  the  recommenda- 
tion of  their  commanding  officers  to  the  Bureau 
of  Navigation,  receive  certificates  of  gradua- 
tion. The  Bureau  of  Navigation  will  be  in- 
formed as  to  any  men  who  are  entitled  to  cer- 
tificates as  indicated  above  and  who  have  not 
yet  received  them. 

In  accordance  with  the  provisions  of  the 
above  Executive  order.  General  Order  Nos.  91 
and  101  are  hereby  revoked. 
Respectfully, 

William  H.  Moody,  Secretary. 


General  Order! 
No.  110.        / 

Navy  Department, 
Washington,  D.  C,  October  22,  1902. 

The  following  Executive  order  is  published 
for  the  information  and  guidance  of  the  service: 

White  House, 
Washington,  D.  C,  October  20,  1902. 
Enlisted  men  of  the  naval  service  regularly 
detailed  as  signalmen  shall  receive  the  follow- 
ing extra  compensation  in  addition  to  the 
monthly  pay  of  the  rating  which  they  mav 
hold: 

Signalmen,  first  class $3.  00 

Signalmen,  second  class 2.  00 

Signalmen,  third  class 1.  00 

Theodore  Roosevelt. 


858 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1569. 


From  and  after  the  date  of  receipt  of  this 
order  all  seamen,  ordinary  seamen,  landsmen, 
or  apprentices  who  may  be  detailed  as  signal- 
men will  be  allowed  this  extra  compensation. 

Flagships  will  be  allowed  four  signalmen, 
first  class;  four  signalmen,  second  class;  and 
fom"  signalmen,  third  class. 

Vessels  of  the  first  rate  will  be  allowed  four 
signalmen,  first  class,  and  four  signalmen,  sec- 
ond class. 

Vessels  of  the  second  rate  will  be  allowed 
fom*  signalmen,  first  class;  two  signalmen,  sec- 
ond class;  and  two  signalmen,  third  class. 

Vessels  of  the  third  rate  will  be  allowed 
three  signalmen,  first  class;  one  signalman, 
second  class;  and  two  signalmen,  third  class. 

This,  however,  does  not  increase  the  allowed 
complement  of  any  vessel  as  at  present  estab- 
lished, but  is  merely  an  allowance  to  men  de- 
tailed as  signalmen. 

Chas.  H.  Darling, 

Acting  Secretary. 


General  Order"! 
No.  130.         / 

Navy  Department, 
Washington,  May  15,  1903. 
Hereafter  apprentices  appointed  as  petty 
officers,  third  class,  of  the  seamen  branch, 
under  article  856,  Navy  Regulations,  shall  be 
eligible  for  advancement  under  the  same  rules 
that  apply  to  other  petty  officers. 

Chas.  H.  Darling, 

Acting  Secretary. 


General  Order\ 
No.  134.         / 

Navy  Department, 
Washington,  June  26,  1903. 

The  following  Executive  order  is  published 
for  the  information  and  guidance  of  the  service' 

White  House, 
Washington,  D.  C,  June  26,  1^03. 

All  chief  petty  officers  of  the  Navy  whose 
pay  is  not  fixed  by  law,  including  chief  water 
tenders,  which  rating  is  hereby  established, 
who,  on  or  after  July  1,  1903,  shall  receive 
permanent  appointments  after  qualifying  there- 
for by  passing  such  examination  as  the  Sec- 
retary of  the  Navy  may  prescribe,  shall  be 
paid  at  the  rate  of  |70  a  month;  those  who 
serve  under  permanent  appointments  issued 
prior  to  said  date,  or  under  acting  appoint- 
ments, shall  be  paid  at  the  rates  now  in  force. 
The  pay  of  chief  water  tenders  who  hold 
acting  appointments  shall  be  $50  a  month. 
Nothing  herein  contained,  however,  shall 
operate  to  reduce  the  present  pay  of  any  en- 
listed man  in  the  Navy. 

Theodore  Roosevelt. 

On  and  after  July  1,  1903,  permanent  ap- 
pointments will  be  issued  by  the  Bureau  of 
Navigation  to  chief  petty  ofiicers  in  the  serv- 
ice only  after  the  fitness  of  the  man  for  pro- 
motion shall  have  been  shown  before  a  board 
consisting  of  three  officers  detailed  from  a 
sMp  or  ships  other  than  the  one  op.  board  of 


which  the  candidate  is  serving.  The  exam- 
ination shall  show  that  the  applicant  is  in  all 
respects  fitted  to  fill  the  rating  in  wliich  he 
seeks  a  permanent  appointment.  Such  ap- 
pointments will  entitle  the  holder  to  draw 
pay  at  the  rate  of  $70  per  month. 

AH  persons  holding  permanent  appoint- 
ments as  chief  petty  officers  issued  prior  to 
July  1,  1903,  may  qualify  by  passing  exam- 
ination as  above.  In  the  event  of  their  quali- 
fying they  will  be  given  new  permanent 
appointments  by  the  Bureau  of  Navigation 
from  the  date  they  pass  their  examination. 

Chief  petty  officers  who  hold  permanent 
appointments  issued  prior  to  July  1,  1903, 
and  who  do  not  qualify  by  examination; 
those  who  reenlist  under  permanent  appoint- 
ments issued  prior  to  July  1,  1903;  and  those 
who  have  acting  appointments  will  draw  pay 
under  the  present  pay  table  until  such  time 
as  they  qualify  by  examination  and  are  given 
permanent  appointments. 

When  these  permanent  appointments  are 
presented  to  the  pay  officer  for  an  increase  in 
pay,  he  will  procure  orders  from  the  command- 
ing officer  upon  S.  and  A.  Form  No.  22 
(Ratings  and  Disratings^  to  make  the  appro- 
priate changes  on  his  books. 

W.  H.  Moody,  Secretary. 


General  OrderI 
No.  137.        / 

Navy  Department, 
Washington,  July  25,  1903. 
The  following  Executive  order  is  published 
for  the  information  and  guidance  of  the  naval 
service: 

White  House,  July  25,  1903. 

Enlisted  men  of  the  Navy,  after  having 
qualified  as  gun  pointers,  according  to  stand- 
ards of  marksmanship  and  rules  that  may  be 
prescribed  from  time  to  time  by  the  Secretary 
of  the  Navy,  and  who  are  regularly  detailed 
as  gun  pointers  by  the  commanding  officer  of 
a  vessel,  shall  receive  monthly,  in  addition 
to  the  pay  of  their  respective  ratings,  extra 
pay  as  follows: 

Heavy  gun  pointers,  first  class,  $10;  second 
class,  $6;  for  the  class  of  guns  comprising  those 
of  8-inch  caliber  or  larger. 

Intermediate  gun  pointers,  first  class,  $8; 
second  class,  $4;  for  the  class  of  guns  com- 
prising those  of  4-inch  to  7-inch  caliber,  in- 
clusive. 

Secondary  gun  pointers,  first  class.  $4; 
second  class,  $2;  for  the  class  of  guns  com- 
prising those  of  1-pounder  to  3-inch  caliber, 
inclusive. 

Extra  pay  shall  be  allowed  a  qualifred  gun 
pointer  during  not  less  than  two  years  from  and 
after  the  date  of  his  qualifying,  but  only  while 
he  is  regularly  detailed  as  a  gun  pointer  at  a 
gun  of  the  class  at  which  he  qualified. 

The  following  ratings  and  rates  of  pay  per 
month  for  the  same  are  hereby  established  in 
the  naval  ser\dce: 

Chief  turret  captain,  holding  acting  appoint- 
ment as  such,  $G0;  holding  a  permanent  ap- 
pointment as  such,  $70. 

Turret  captain,  fii'st  class,  $50. 


54641°— 22- 


-55 


859 


Sec.  1669. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Enlisted  men  of  the  Navy  regularly  detailed 
by  the  commanding  oflicer  of  a  vessel  as  gun 
captains,  except  as  secondary  battery  guns, 
shall  receive,  in  addition  to  the  pay  of  their 
respective  ratings,  $.■>  per  month,  which,  in  the 
case  of  men  holding  certificates  as  gun  captains 
or  of  graduation  from  the  gun-captain  class, 
petty  oflicers'  school,  shall  include  the  $2  per 
month  to  which  such  certificates  entitle  them. 

This  order  shall  go  into  effect  October  1,  1903. 

Theodore  Roosevelt. 

In  pursuance  of  the  provisions  of  the  foregoing 
order,  the  following  instructions  will  be  ob- 
served : 

RULES  governing  EXTRA  PAY  TO  GUN  POINTERS 

The  standards  of  marksmanship  entitling  men 
to  extra  pay  as  gun  pointers  (first  and  second 
classes)  of  the  three  classes  of  guns  (heavy, 
intermediate,  and  secondary)  will  be  an- 
nounced by  the  department  as  soon  as  practi- 
cable after  the  completion  of  the  record  target 
practice  to  be  held  early  in  1904.  These 
standards  are  subject  to  change  yearly. 

A  gun  pointer's  "gunnery  record"  will  be 
his  sole  certificate  of  qualification,  and  the  rate 
of  his  extra  pay  as  a  qualified  gun  pointer  will 
be  determined  by  his  score  at  an  annual  record 
target  practice,  signed  by  the  chief  umpire 
detailed  for  the  ship  at  that  practice. 

As  soon  as  the  official  announcement  of 
standards  of  marksmanship  is  received,  the 
commanding  officer  of  each  vessel  shall  direct 
the  pay  officer  (using  S.  and  A.  Form  No.  236, 
"Order  for  extra  compensation  for  enlisted 
men")  to  credit  the  men  that  have  qualified  as 
gun  pointers,  first  or  second  class,  with  the 
extra  pay  allowed  them,  respectively,  by  the 
foregoing  Executive  order;  and  over  the  men's 
names  on  the  pay  roll  shall  be  entered  in  red 
ink  the  abbre\aations  "H.  G.  P.,  1st  CI.,"  "H 
G.  P.,  2d  CI.,"  "I.  G.  P.,  1st  CI.,"  "I.  G.  P  ; 
2d  CI.,"  "S.  G.  P.,  1st  CI.,"  "S.  G.  P.,  2d  CI.," 
as  the  case  may  be.  Such  extra  pay  shall  be 
allowed  from  the  date  that  the  vessel  on  which 
the  pointer  qualifies  completes  her  record 
target  practice. 

A  gun  pointer  shall  receive  extra  pay  as  such 
only  during  the  time  that  he  is  regularly  de- 
tailed by  the  commanding  officer  of  the  vessel 
as  a  gun  pointer  at  a  gun  of  a  class  at  which  he 
has  qualified;  if  he  has  qualified  at  more  than 
one  class  of  gun,  he  shall  receive  only  the  extra 
pay  allowed  for  a  gun  of  the  class  at  which  he 
IS  regularly  detailed  as  gun  pointer. 

Although  the  standards  of  marksmanship  are 
subject  to  change  yearly,  a  pointer  that  qualifies 
at  any  annual  record  practice  is  entitled  to  the 
corresponding  extra  pay  for  all  the  time  during 
the  ensuing  period  of  two  years  that  he  is  regu- 
larly detailed  as  a  gun  pointer  at  a  gun  of  the 
class  at  which  he  qualified  at  that  practice. 

A  qualified  gun  pointer  reenlisting  for  four 
years  within  four  months  of  his  discharge,  and 
regularly  stationed  as  a  gun  pointer  at  a  gun  of 
a  class  at  which  he  was  qualified  at  the  time 
of  his  discharge,  shall  be  entitled  to  the  corre- 
sponding extra  pay  during  the  unexpired  por- 
tion of  the  period  of  two  years  from  the  date 


of  (jualifying— the  interval  of  time  between  the 
date  of  his  discharge  and  reenlistment  to  be 
included  in  the  period  of  two  years. 

QUALIFICATIONS   AND  APPOINTMENT  OF  TURRET 
CAPTAINS. 

The  qualifications  required  for  the  duties  of 
turret  captain  are  sufficient  knowledge  and 
ability  to  drill  the  turret  crews  and  to  control 
the  fire  of  the  guns  in  action  in  the  absence  of 
the  turret  officer,  and  the  mechanical  knowl- 
edge and  skill  necessary  to  overhaul  all  parts 
of  the  turret  and  gun  gear  and  keep  them  at  all 
times  in  efficient  condition. 

For  each  10-inch,  12-incli,  and  13-inch  turret, 
and  for  each  combination  of  superimposed 
turrets,  one  chief  turret  captain  is  allowed; 
but  a  turret  captain,  first  class,  may  be  assigned 
to  any  such  turret  for  which  no  cliief  turret 
captain  is  available.  For  each  8-inch  turret 
(not  superimposed)  one  turret  captain,  first 
class,  is  allowed. 

To  fill  these  ratings,  wholly  or  in  part,  com- 
manding officers  will  select  candidates  that 
appear  to  possess  the  necessary  qualifications 
from  gunner's  mates,  seamen  gunners,  men 
holding  the  rate  of  gun  captain  or  certificate  of 
graduation  from  the  petty  officers'  school,  gun 
captain  class,  and  other  intelligent  men— not 
alone  of  the  seaman  branch — of  mechanical 
bent  and  good  promise  as  leading  men.  The 
names  of  these  men  shall  be  sent  to  the  squad- 
ron commander,  who  will  order  their  examina- 
tion before  a  board  of  not  less  than  three  officers, 
the  majority  to  be  turret  officers  if  practicable, 
to  be  appointed  by  him,  none  of  whom  shall  be 
taken  from  the  ship  to  which  the  candidates 
belong.  Commanding  officers  shall  nominate 
at  least  two  candidates  for  each  vacancy  as 
turret  captain,  in  order  that  the  examination 
may  be  competitive. 

The  candidates  that  pass  the  examination 
will  be  eligible  for  acting  appointments  as 
turret  captains,  first  class;  but  no  cliief  petty 
officer  shall  be  rated  a  turret  captain,  first  class, 
against  his  will.  Permanent  appointments  and 
advancement  will  be  governed  by  the  same 
regulations  that  apply  to  other  petty  officer 
ratings. 

EXTRA   PAY   FOR   GUN    CAPTAINS. 

When  the  commanding  officer  details  a  petty 
officer  or  other  enlisted  man  as  a  gun  captain  he 
shall  direct  the  pay  officer  to  credit  him  with 
the  extra  pay  allowed  by  the  foregoing  Execu- 
tive order  (using  S.  and  A.  Form  No.  236, 
"Order  for  extra  compensation  for  enlisted 
men"),  and  over  the  man's  name  on  the  pay 
roll  shall  be  entered  in  red  ink  the  abbreviation 
'  G.  C." 

DISCONTINUING    EXTRA   PAY. 

When  the  commanding  officer  revokes  the 
detail  of  a  man  as  a  gun  captain  or  gun  pointer 
he  shall,  in  writing,  direct  the  pay  officer  to 
discontinue  the  corresponding  extra  pay. 

William  H.  Moody,  Secretary. 


860 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1569. 


General  Order"! 
Xo.  168.        / 

Navy  Departmext, 
Washington,  September  9,  1904- 
The    following    Executive    order,    affecting 
General  Order  No.  108,  is  published  for  the 
injformation  and  guidance  of  the  service: 

White  House,  September  5,  1904. 
The  Executive  order  of  September  4,  1902, 
authorizing  additional  pay  to  certain  enlisted 
men  of  the  Navy,  is  hereby  so  far  modified  that 
hereafter  the  date  of  the  award  of  a  good- 
conduct  medal,  pin,  or  bar  shall  be  the  date 
of  the  holder's  discharge  by  reason  of  the  ex- 
piration of  the  enlistment  for  which  the  medal 
pin,  or  bar  is  given,  the  allowance  of  75  cents 
per  month  to  be  reckoned  from  said  date  of 
award:  Provided,  That  nothing  in  this  order 
shall  be  construed  to  authorize  any  change  in 
the  date  of  award  of  any  good-conduct  medal, 
pin,  or  bar  heretofore  awarded,  or  to  grant  any 
arrears  of  allowances  on  account  thereof. 

Theodore  Roosevelt. 

Paul  Morton,  Secretary. 


General  Order") 

No.  186.       J 

Navy  Department, 

Washington,  June  5,  1905. 

The  following  Executive  order  is  published 
for  the  information  and  guidance  of  the  service: 

Any  enlisted  man  of  the  Na\'y  detailed  to 
perform  the  duties  of  ship's  tailor  on  board  of  a 
vessel  having  a  complement  of  600  men  or  more, 
exclusive  of  marines,  shall  receive  S20  per 
month  in  addition  to  the  monthly  pay  of  his 
rating;  on  a  vessel  having  a  complement  of 
from  300  to  600  men,  exclusive  of  marines,  .$15 
per  month  in  addition  to  the  monthly  pay  of  his 
rating ;  on  a  vessel  having  a  complement  of  less 
than  300  men,  exclusive  of  marines,  $10  per 
month  in  addition  to  the  monthly  pay  of  his 
rating.  Any  enlisted  man  of  the  Navy  detailed 
as  tailor's  helper  on  board  of  a  vessel  having  a 
complement  of  600  men  or  more,  exclusive  of 
marines,  shall  receive  $10  per  month  in  addi- 
tion to  the  monthly  pay  of  his  rating:  Pro- 
vided, That  the  total  pay  of  an  enlisted  man 
detailed  to  perform  the  duties  of  ship's  tailor 
shall  not  exceed  $50  per  month,  and  of  tailor's 
helper  shall  not  exceed  $40  per  month. 

Theodore  Roosevelt. 

The  White  House, 

June  2,  1905. 

From  and  after  .July  1,  1905,  vessels  having  a 
complement  of  600  men  or  more,  exclusive  of 
marines,  will  be  allowed  one  ship's  tailor  and 
one  tailor's  helper;  vessels  having  a  comple- 
ment of  less  than  600  men  and  more  than  100 
men  will  be  allowed  one  ship's  tailor. 

Men  detailed  for  duty  as  ship's  tailors,  or  as 
tailor's  helpers,  will  be  assigned  to  the  paymas- 
ter's division  and  perform  the  duties  of  their 
detail  without  reference  to  the  rating  held  by 


them.  It  shall  be  their  duty  to  alter,  when 
necessary,  Avithout  expense  to  the  enlisted  men 
of  the  Navy,  all  uniforms,  caps,  and  clothing 
issued  by  the  paymaster. 

The  above  does  not  increase  the  allowed  com- 
plement of  any  vessel  as  at  present  established. 
Paul  Morton,  Secretary. 


General  Order\ 
No.  9.     / 

Navy  Department, 

Washington,  November  9,  1905. 

The  following  Executive  order  is  published 
for  the  information  and  guidance  of  the  service: 

Besides  the  $5  per  month  extra  pay  allowed 
them  for  submarine  ser\'ice,  enlisted  men 
ser\'ing  with  submarine  torpedo  boats,  and 
ha\'ing  been  reported  by  their  commanding 
officers  to  the  Navy  Department  as  qualified  for 
submarine  torpedo-boat  work,  shall  receive 
$1  additional  pay  for  each  day  during  any  part 
of  which  they  shall  have  been  submerged  in  a 
submarine  torpedo  boat  while  under  way:  Pro- 
vided, however,  That  such  further  additional  pay 
shall  not  exceed  $15  in  any  one  calendar  month. 
Theodore  Roosevelt. 

The  White  House,  November  8,  1905 

Men  to  be  eligible  for  recommendation  by 
their  commanding  officers  as  "qualified  for 
submarine  torpedo  boat  work"  must  fulfill  the 
requirements  prescribed  from  time  to  time  by 
the  Bureau  of  Navigation. 

Service  on  a  submarine  torpedo  boat  shall  be 
counted  sea  service  for  all  purposes  of  rating, 
but  in  examinations  for  permanent  appoint- 
ment petty  oflicers  who  have  served  their  pro- 
bationary period  wholly  or  in  part  on  vessels 
of  this  class  will  be  required  to  show  such  pro- 
ficiency in  all  the  usual  duties  of  their  respec- 
tive ratings  as  \\i\\  qualify  them  to  serve  in  such 
rating  on  vessels  of  any  class.  The  examina- 
tions for  permanent  appointment  as  chief  petty 
officer,  called  for  in  article  852,  paragraph  2,  of 
the  Navy  Ptegulations,  shall  be  conducted  by 
officers  other  than  those  on  duty  with  sub- 
marine torpedo  boats. 

Whenever  a  submarine  torpedo  boat  is  en- 
gaged on  duty  under  water,  it  shall  be  accom- 
panied by  a  tender  which  shall  be  capable  of 
including  comfortable  accommodations  for  the 
officers  and  men  of  the  submarine. 

Time  spent  by  officers  on  duty  with  sub- 
marine torpedo  boats  shall  count  as  part  of  a 
cruise. 

Charles  J.  Bonaparte,  Secretary. 


General  Order! 
No.  31.         / 

Navy  Department, 
Washington,  D.  C,  October  29,  1906. 

In  accordance  with  the  act  of  Congress  ap- 
proved June  29,  1906,  "making  appropriations 
for  the  naval  service  for  the  fiscal  year  ending 
June  30,   1907.  and  for  other  purposes,"  the 


861 


Sec.  1660. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


department  directs  that  any  man  enlisting  on 
or  after  l)eceml»er  1,  190(),  who  is  discharged 
(luring  tlie  first  six  months  of  a  first  enlistment 
for  any  cause  other  than  disability  incurred  in 
the  line  of  duty  shall  have  checked  against  his 
accounts  prior  to  discharge  the  cost  of  such 
portion  of  outfit  allowed  on  first  enlistment  as 
he  may  have  drawn. 

Tkuman  H.  Nkwderry, 

Acting  Secretary. 


General  OrderI 
No.  34.         / 

Navy  Department, 
Washington,  November  28,  1906. 

The  following  Executive  order  is  published 
for  the  information  and  guidance  of  the  service: 
To  provide  adequate  compensation  for  trained 
men,  the  pay  now  prescribed  by  Executive 
order  for  each  rating  in  the  Navy  is  hereby 
increased  $5  per  mouth  during  the  second 
period  of  service  and  a  further  sum  of  $3  per 
month  during  each  and  every  subsequent 
period  of  service:  Provided,  That  only  enlisted 
men  who  are  citizens  of  the  United  States,  and 
whose  second  and  subsequent  periods  of  service 
each  follow  next  after  service  in  the  Navy  that 
was  terminated  by  reason  of  explication  of  en- 
listment, shall  receive  the  benefits  of  the  In- 
creased pay  named  herein:  Provided  further. 
That  in  the  cases  of  men  who  are  or  were  finally 
discharged  from  the  Navy  by  reason  of  expira- 
tion of  enlistment,  the  first  enlistment  on  or 
after  the  date  of  this  order  shall  be  considered 
the  second  period  of  service  which  shall  carry 
with  it  the  Increased  pay  provided  by  this 
order,  except  that  men  discharged  on  recom- 
mendations of  boards  of  medical  survey  shall, 
if  they  reenter  the  service,  be  given  credit  for 
any  previous  periods  of  service  In  the  Navy 
which  were  terminated  by  reason  of  expiration 
of  enlistment. 

Chief  petty  officers  detailed  as  Instructors  of 
apprentice  seamen  at  naval  stations  who  qualify 
as  instructors  by  examination  shall  receive 
hereafter,  in  addition  to  their  pay,  the  sum  of 
$10  per  month,  while  so  detailed,  such  pay  to 
be  considered  extra  pay  for  special  duty. 

Apprentice  seamen  detailed  as  apprentice 
chief  petty  officers,  apprentice  petty  officers, 
first,  second,  or  third  class,  in  connection  with 
the  instruction  of  apprentice  seamen  at  naval 
stations,  shall  receive  hereafter,  in  addition  to 
their  pay,  the  sum  of  $2.50,  $2,  $1.50,  and  $1 
each  per  month,  respectively,  whUe  so  detailed, 
such  pay  to  be  considered  extra  pay  for  special 
duty. 

Theodore  Roosevelt. 

The  White  House, 

November  27,  1906. 

Chief  petty  officers  must  be  citizens  of  the 
United  States  and  serving  under  continuous 
service  in  order  to  be  eligible  for  exanalnation 
for  detail  as  instructors  of  apprentice  seamen  at 
naval  stations.  They  must  also  qualify  in  ac- 
cordance with  the  requirements  prescribed 
from  tune  to  time  by  the  Bureau  of  Navigation. 


The  complement  of  apprentice  seamen  au- 
thorized at  each  naval  station  as  apprentice 
petty  officers  will  be  four  (one  of  each  rating) 
for  each  75  apprentice  seamen  under  trairdng 
at  the  station. 

G.  A.  Converse, 

Acting  Secretary. 


General  Order"! 
No.  43.         / 

Navy  Department, 
Washington,  D.  C,  April  6,  1907. 

On  and  after  July  1,  1907,  all  enlisted  men  of 
the  Navy  shall  receive,  on  first  enlistment, 
outfits  amounting  in  value  as  follows: 

Samoans  and  such  men  of  the  messman 
branch  as  are  not  required  to  possess 

complete  outfits,  not  to  exceed $20.  00 

Men  of  the  insular  force,  not  to  exceed . .     30.  00 
All  other  enlisted  men,  not  to  exceed..     60.  00 

Commanding  officers  will  direct  which  of  the 
above  amounts  is  to  be  allowed  In  each  case  of 
first  enlistment. 

Attention  is  called  to  the  Uniform  Regula- 
tions, 1905,  pages  53  and  54,  regarding  the  por- 
tions of  outfits  to  be  issued  on  enlistment,  and 
on  transfer  to  cruising  vessels;  also  to  General 
Order  31,  of  October  29,  1906,  regarding  the 
checkage  against  the  accounts  of  men  dis- 
charged during  the  first  six  months  of  first  en- 
listment for  any  cause  other  than  disability 
incmred  in  the  line  of  duty,  of  the  cost  of  such 
portion  of  the  allowed  outfit  as  may  have  been 
drawn. 

V.  H.  Metcalf,  Secretary. 


General  OrderI 
No.  57.         / 

Navy  Department, 
Washington,  December  9,  1907. 

The  follo\\T.ng  Executive  order  Is  published 
for  the  information  and  guidance  of  the  naval 
service: 

The  White  House,  November  16,  1907. 
The  extra  pay  allowed  gun  pointers  in 
accordance  with  the  Executive  order  of  July 
25,  1903,  shall  be  allowed  a  gun  pointer  reg- 
ularly detailed  as  a  gun  pointer  at  a  gun  of 
the  class  at  which  he  qualified  only  as  long 
as  he  remains  qualified:  Provided,  This  order 
shall  be  construed  as  affecting  only  gun 
pointers  who  qualify  subsequent  to  the  date 
of  this  order. 

Theodore  Roosevelt. 

V.  H.  Metcalf,  Secretary. 


General  OrderI 
No.  62.  / 

Navy  Department, 
Washington,  February  7,  1908. 

The  following  Executive  order  is  published 
for  the  information  and  guidance  of  the  service: 

On  and  after  March  1,  1908,  the  classification 
and  pay  of  mess  attendants  in  the  Navy  who 


862 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1569. 


are  citizens  of  the  United  States  shall  be  as 
follows: 

Per  month. 

Mess  attendants,  first  class $30.  00 

Mess  attendants,  second  class 25.  00 

Mess  attendants,  third  class 20.  00 

On  and  after  ^larch  1,  1908,  all  stewards 
and  cooks  in  the  messman  branch  who  are 
citizens  of  the  United  States  and  who  hold, 
or  may  receive  certificates  of  qualification  as 
stewards  or  cooks,  shall  receive  $5  per  month 
additional  to  the  pay  of  their  rating  while 
holding  such  certificate,  such  additional  pay 
to  be  of  a  permanent  character  as  regular  pay. 
Theodore  Roosevelt. 

The  White  House, 

January  28,  1908. 

On  and  after  March  1,  1908,  all  mess  attend- 
ants who  are  citizens  of  the  United  States 
shall  be  paid  in  accordance  with  the  above 
Executive    order. 

Certificates  of  qualification  heretofore  or 
hereafter  issued  by  the  Bureau  of  Navigation 
shall  remain  in  force  for  a  period  of  two  years 
from  their  date,  unless  sooner  revoked  in  the 
discretion  of  the  commanding  officer  for  cause, 
and  shall  be  renewed  by  the  commanding 
officer  at  the  expiration  of  each  two  years  for 
a  similar  term,  provided  the  continued  good 
performance  of  duty  of  the  steward  or  cook  so 
warrants. 

V.  H.  Metcalf,  Secretary. 

3.  Act  of  May  13,  1908,  construed.— The 
act  of  May  13,  1908  (35  Stat.,  128),  proA-ided 
that  "the  pay  of  all  active  and  retired  enlisted 
men  of  the  Navy  is  hereby  increased  ten  per 
centum,"  and  that  '"all  pay  herein  pro^ided 
shall  remain  in  force  until  changed  by  act  of 
Congress. "  The  10  per  cent  increase  pro^'ided 
by  said  act  of  May  13,  1908,  applied  only  to  the 
pay  proper  of  enlisted  men,  or  their  base  pay 
anci  permanent  additional  pay,  such  as  addi- 
tional pay  allowed  by  Executive  orders  for  con- 
tinuous sendee,  longeAity  service,  good-con- 
duct medals,  pins,  or  bars,  and  for  graduation 
certificates;  and  did  not  apply  to  their  tempo- 
rary additional  pay  provided  by  Executive 
orders  for  special  seridce,  such  as  for  gun  point- 
ers, messmen,  coxswains  of  steam  launches, 
jacks-of-the-dust,  etc.    (14  Comp.  Dec,  829.) 

Nevertheless,  while  the  increase  of  10  per 
cent  allowed  by  the  act  of  May  13,  1908,  ap- 
plied only  to  base  pay  and  permanent  addi- 
tions thereto,  the  further  proAdsion  of  said  act, 
that  all  pay  therein  provided  shall  continue  in 
force  until  changed  by  act  of  Congress,  included 
not  only  such  base  pay  and  permanent  addi- 
tions thereto,  but  also  temporaiy  additional 
pay  for  special  ser\'ice.     (24  Comp.  Dec,  364.) 

The  effect  of  the  act  of  May  13,  1908,  was  to 
make  the  pay  of  all  enlisted  men  of  the  Navy, 
then  in  force,  and  as  increased  by  said  act,  per- 
manent and  subject  to  change  only  by  legisla- 
tion of  Congress;  and  to  prohibit  any  addi- 
tional compensation  for  special  sendees  per- 
formed by  enlisted  men  under  authority  of 
Executive  orders  issued  since  May  13,  1908. 
Accordingly,  where  Executive  orders  in  force 
on  the  last-named  date  limited  the  payment  of 
additional  compensation  to  men  detailed  to 


perform  special  sendees  on  board  vessels  of  the 
Navy,  the  conditions  prescribed  by  such  Exec- 
utive orders  could  not,  after  the  date  of  said  act, 
be  changed  by  Executive  order  so  as  to  allow 
such  additional  compensation  for  similar  sen-- 
ices  performed  at  shore  stations.  (24  Comp, 
Dec,  364.7 

Hdd,  however,  that  additional  compensa- 
tion pro\dded  by  Executi-\'e  order  prior  to 
May  13,  1908,  for  enlisted  men  of  the  Navy  de- 
tailed as  gun  pointers  "by  the  commanding 
officer  of  a  vessel, "  may  be  allowed  enlisted 
men  detailed  as  gun  pointers  by  the  officer  in 
command  of  an  enlisted  force  of  the  NaAy 
aboard  a  merchant  ship,  who  may  be  consid- 
ered as  the  commanding  officer  within  the 
meaning  of  said  order;  but  that  the  conditions 
under  which  said  additional  compen.sation  may 
be  allowed  are  not  subject  to  change.  (24 
Comp.  Dec,  364.) 

The  act  of  May  13,  1908,  pro\dding  that  the 
pay  of  all  enlisted  men  of  the  Na\y  is  hereby 
increased  10  per  cent,  and  that  all  pay  herein 
proAdded  shall  remain  in  force  until  changed 
by  act  of  Congress,  took  from  the  President  the 
powers  pre\dously  conferred  upon  him,  under 
section  1569,  Re%dsed  Statutes;  and  Congress 
adopted,  as  the  basis  of  the  pay  for  enlisted  men 
of  the  NaAy,  the  rates  then  in  force,  making 
such  rates  permanent.     (26  Comp.  Dec,  428). 

By  the  act  of  May  13, 1908,  Congress  intended 
to  grant,  by  direct  legislative  action,  the  right 
to  pay  preAdously  granted  by  Executive 
orders,  subject  to  the  limitations  which  the 
Comptroller  of  the  Treasury  and  the  courts 
had  by  decisions  placed  thereon.  Had  Con- 
gress intended  to  extend  benefits  beyond  those 
which  had  been  held  to  arise  under  Executive 
orders,  it  is  proper  to  assume  that  such  intent 
would  have  been  expressed.  (26  Comp.  Dec, 
428.) 

4.  Civilians  shipped  on  naval  vessels. — 
Section  1569,  Revdsed  Statutes,  authorizing  the 
President  to  fix  the  pay  of  petty  officers,  sea- 
men, and  others,  does  not  apply  to  seamen  on  a 
vessel  who  were  "shipped"  and  not  enlisted, 
and  whose  pay  was  fixed  as  a  matter  of  agree- 
ment with  the  officer  who  shipped  them.  (Sto- 
vel  V.  U.  S.,  36  Ct.  Cls.,  392.) 

5.  Insular  force. — Pursuant  to  the  author- 
ity conferred  by  section  1569,  ReAdsed  Statutes, 
the  insular  force,  United  States  Na\'y,  was 
established  by  Executive  order  dated  April  5, 
1901  (incorporated  in  art.  4429,  Na\y  Regs., 
1913),  under  which  the  Secretary  of  the  ^axy 
is  authorized  to  enlist  in  the  insular  force  not 
to  exceed  500  Filipinos  in  the  ratings  and  at  the 
rates  of  pay  therein  specified.  (27  Comp. 
Dec,  357.) 

Under  the  act  of  May  13,  1908  (35  Stat.,  128), 
the  rates  of  pay  of  the  insular  force,  as  estab- 
lished by  the  Executive  order  of  April  5,  1901, 
plus  the  10  per  cent  increase  thereof  pro\dded 
by  that  act,  was  to  remain  in  force  until  changed 
by  act  of  Congress.     (27  Comp.  Dec,  357.) 

Pursuant  to  section  1569,  Re\dsed  Statutes, 
the  President  issued  an  order  dated  April  5, 
1901,  published  in  Na\'y  Department  General 
Order  No.  40  of  April  8,  1901,  establishing  an 
"insular  force"  of  Filipinos  and  pro\ddiug 
rates  of  pay  for  men  enlisted  therein.  Held, 
that  the  enlisted  men  of  the  said  insular  force 


863 


Sec.    1669. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


are  enlisted  men  of  the  Regular  Navy  of  the 
I'niteil  States;  that  unless  said  insular  force  be 
a  part  of  the  Regular  Navy  there  would  be  no 
authority  for  the  eatal)lishment  of  such  force; 
and  that,  l)eing  enlisted  men  of  the  Regular 
Navy,  they  are  entitled  to  the  outfits  on  first 
enlistment  as  authorized  by  act  of  April  27, 
1904  (33  Stat.,  326),  and  the  extra  pay  for  de- 
tention in  the  senice  as  provided  t)v  section 
1122,  Revised  Statutes.  (12  Comp.  Dec,  189; 
see  also  note  to  sec.  1422,  R.  S.) 

As  General  Order  No.  40,  Navy  Department, 
April  8,  1901,  which  provided  for  the  organiza- 
tion of  the  insular  force  of  the  Na\y,  made  no 
provision  for  the  payment  of  additional  pay  for 
medals,  pins,  and  bars,  and  as  said  order  was 
not  modified  or  enlarged  by  the  act  of  May  13, 
1908  (35  Stat.,  127),  held,  that  the  members  of 
said  insular  force  acquired  no  further  benefits 
by  reason  of  the  provisions  of  that  act,  and 
accordingly  are  not  entitled  to  the  additional 

Say  provided  for  enlisted  men  of  the  Regular 
avy  who  are  awarded  good-conduct  medals, 
pins,  and  bars.     (26  Comp.  Dec,  428.) 

Enlisted  men  of  the  insular  force  are  entitled 
to  extra  pay  conferred  upon  all  enlisted  men 
by  statute;  but  extra  pay  pro\'ided  by  Execu- 
tive orders  other  than  that  which  established 
the  insular  force  is  not  payable  to  members  of 
said  force.     (26  Comp.  Dec,  428.) 

The  rates  of  pay  prescribed  by  section  6  of 
the  act  of  May  18,  1920  (41  Stat.,  602),  for 
certain  enlisted  men  of  the  Na\'y  are  applicable 
to  the  insular  force.  Section  13  of  the  same  act 
provides  that  same  shall  be  the  rates  of  pay 
during  the  current  enlistment  of  "all"  men  in 
active  service  on  the  date  of  the  approval  of  the 
act,  etc.  The  words  "all  men"  as  used  in  that 
section  clearly  extend  to  the  enlisted  men  of 
the  insular  force.     (27  Comp.  Dec,  357.) 

The  classification  in  the  act  of  May  18,  1920, 
section  6,  prescribing  base  pay  for  certain  en- 
listed ratings,  does  not  include  the  ratings  of 
steward  or  cook  to  commander  in  chief,  stewards 
and  cooks  to  commandants,  or  any  of  the  en- 
listed ratings  of  the  insular  force.  Apparently 
no  pro\dsion  is  made  in  the  act  for  discontinuing 
these  ratings,  or  adapting  them  to  the  classified 
ratings,  and  therefore  they  exist  as  ratings  for 
which  no  base  pay  is  expressly  provided  by  law. 
Held,  that  the  proAdsion  in  the  act  of  June  4, 
1920  (41  Stat.,  836),  empowering  the  Secretary 
of  the  Navy  to  establish  such  grades  and  ratings 
as  may  be  necessary  for  the  proper  administra- 
tion of  the  enlisted  personnel  of  the  Navy  and 
Marine  Corps,  confers  upon  the  Secretary 
authority  to  remodel  or  change  any  existing 
ratings  so  as  to  make  the  designation  thereof 
conform  to  the  classification  of  the  ratings  for 
which  a  new  base  rate  of  pay  is  provided  in  the 
act  of  May  18,  1920  (41  Stat.,  603,  604);  and 
therefore  that  the  Secretary  is  authorized  to 
determine  the  proper  class  in  the  messmen 
branch  in  which  native  stewards,  cooks,  and 
mess  attendants  of  the  insular  force  of  the  NaNy 
should  be  placed  in  order  to  conform  to  the 
classification  of  ratings  for  which  base  pay  is 
prescrif)ed  by  said  act  of  May  18, 1920.  (Comp. 
Dec,  Dec  17,  1920,  file  29199-28:1.) 

6.  Mates. — See  notes  to  sections  1408,  1409, 
1556,  and  1573,  Revised  Statutes. 


The  exception  of  mates  from  section  1569, 
Revised  Statutes,  merely  indicates  that  Con- 
gress, having  already  fixed  their  pay  by  section 
1556,  such  pay  need  not  be  fixed  by  the  Presi- 
dent. Such  excei)tion  of  mates  from  other 
petty  officers  in  section  1569  indicates  that  they 
are  petty  oflicers.  (U.  S.  v.  Fuller,  160  U.  S., 
593;  see  note  to  sec  1579,  R.  S.) 

A  mate  is  eligible  for  selection  and  designa- 
tion as  Navy  mail  clerk  under  the  act  of  May 
27,  1908  (35  Stat.,  417),  and  is  entitled  to  receive 
the  pay  provided  in  said  act  for  a  Navy  mail 
clerk  in  addition  to  his  pay  as  mate,  provided 
that  the  pro\asion  in  said  act  for  the  designation 
and  qualification  of  a  Navy  mail  clerk  has  been 
fully  complied  with.  (15  Comp.  Dec,  262. 
See  below,  "Additional  pay  for  special  duty.") 

In  view  of  section  1558,  Revised  Statutes, 
mates  are  not  entitled  to  the  additional  pay 
provided  for  by  Executive  ord-^r  for  good- 
conduct  medals,  pins,  and  bars.  (9  Comp. 
Dec,  600.) 

Mates  being  specifically  excepted  from  sec- 
tion 1569,  under  authority  of  which  extra  com- 
pensation for  good-conduct  medals  and  bars, 
seamen  gunners'  certificates,  and  petty  officers' 
certificates  is  provided,  they  are  not  entitled  to 
such  extra  compensation.  (14  Comp.  Dec,  457.) 

7.  Mess  attendants  and  cooks. — See  also 
above,  "Pay  of  insular  force";  and  see  below, 
"Longevity  pay.  General  Order  No.  34." 

The  rates  of  increased  pay  for  continuous 
service  which,  before  the  naval  personnel  act 
of  March  3,  1899,  section  16  (30  Stat.,  1008), 
had  been  fixed  by  the  President  under  section 
1569,  Revised  Statutes,  became  by  said  act  a 
part  of  the  statutory  law;  said  act  fixed  the 
increase  of  $1.36  per  month  to  the  pay  pre- 
scribed for  the  rating  of  mess  attendants  for 
each  consecutive  reenlistment  as  the  measure 
of  the  increase  of  value  to  the  service  of  one 
who  so  reenlists,  and  it  is  not  within  the  power 
of  anyone,  until  the  law  is  changed,  to  fix  a 
greater  or  less  rate.  Under  section  1569,  the 
President  could  fix  the  pay  to  be  allowed  mess 
attendants,  and  could  change  same  from  time 
to  time  as  he  deemed  just  and  proper;  but  when 
he  had  fixed  the  rate,  then  by  section  16  of  the 
personnel  act  Congress  declared  what  increased 
amount  they  should  receive  for  reenlistment. 
Accordingly,  held,  that  Navy  Department 
General  Order  No.  20,  of  January  1,  1901,  fixing 
the  pay  of  mess  attendants  for  the  second  and 
third  enlistments,  and  adding  $4  to  the  monthly 
pay  of  the  rating  for  a  first  reenlistment  and 
$4  more  per  month  for  a  second  reenlistment, 
in  addition  to  the  $1.36  per  month  for  each 
consecutive  reenlistment  allowed  by  section  16 
of  the  personnel  act  of  March  3,  1899,  was  con- 
trary to  law.     (8  Comp.  Dec,  227.) 

A  mess  attendant  of  the  Navy,  third  class,  who 
holds  a  certificate  of  identity  issued  by  the 
Department  of  Commerce  and  Labor,  or  other 
proper  evidence  showing  that  he  was  born  in 
the  Hawaiian  Islands,  is  a  citizen  of  the  United 
States  and  as  such  is  entitled  to  be  paid  at  the 
rate  provided  for  a  citizen  of  the  United  States. 
(17  Comp.  Dec,  556.) 

Extra  pay  for  enlisted  men  detailed  as 
messmen  was  authorized  by  General  Order 
No.  61  of  October  17,   1901,  as  amended  by 


864 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1569. 


General  Order  No.  79  of  January  7,  1902. 
Held,  that  a  man  enhsted  as  a  mess  attendant 
is  not  entitled  to  the  extra  pay  allowed  men 
enlisted  in  other  branches  and  temporarily 
detailed  to  duty  as  messmen.  The  pay  of  such 
mess  attendants  is  governed  bv  specific  orders. 
(Comp.  Dec,  Apr.  11, 1908, 86  S.  and  A.  Memo., 
631.) 

The  rates  of  pay  of  mess  attendants  in  the 
Nax-y  who  are  citizens  of  the  United  States 
were  fixed  by  Executive  order  dated  January 
28,  1908,  and  promulgated  to  become  effective 
from  March  1,  1908,  in  General  Order  No.  62, 
Navv  Department,  February  7,  1908.  The  act 
of  May,  13,  1908  (35  Stat.,  128),  should  be 
construed  as  specifically  fixing,  as  permanent, 
rates  of  pay  for  each  rating  then  in  effect  for  the 
Navy.  Included  in  these  rates  are  the  rates  of 
pay  for  mess  attendants,  citizens  of  the  United 
States.  Accordingly,  a  mess  attendant,  second 
class,  is  not  encitted  to  the  pay  thus  fixed  by 
law  for  mess  attendants,  third  class.  (25  Comp. 
Dec,  424,  citing  Gen.  Order  303,  June  18,  1917, 
note  B.  Compare,  Comp.  Dec,  Apr.  14,  1914, 
158  S.  and  A.  Memo.,  3038,  noted  below  under 
"Retired  enlisted  men.") 

The  fact  that  enlisted  men  of  the  Na\'y  hold- 
ing the  rating  of  mess  attendants,  second  class, 
receive  less  pay,  including  the  increase  granted 
by  the  act  of  5lay  22,  1917,  than  mess  attend- 
ants, third  class,  does  not  authorize  the  credit- 
ing of  men  holding  the  rating  of  mess  attendant, 
second  class,  with  the  pay  fixed  for  the  third 
class.     (25  Comp.  Dec,  424.) 

A  wardroom  cook  who  is  a  citizen  of  the 
United  States  and  who  holds  a  certificate  of 
qualification  as  cook,  issued  to  him  while  he 
was  a  warrant  officer's  cook,  ia  entitled  under 
such  certificate  to  $5  per  month  additional  pay 
until  its  expiration,  two  years  from  issuance 
unless  it  shall  sooner  lapse  or  be  revoked.  (18 
Comp.  Dec,  724.) 

8.  Additional  pay  for  special  duty,  etc. — 
See  also,  below,  "Retired  enlisted  men,"  and 
"Leave  of  absence";  and  see  above  "Mess 
attendants  and  cooks." 

The  increased  pay  for  a\-iation  duty  in  the 
case  of  enlisted  men  of  the  Na^^  is  to  be  com- 
puted upon  the  pay  and  permanent  additions 
thereto  of  their  rating  and  service.  (22  Comp. 
Dec,  11.) 

As  originally  pro\'ided  by  the  act  of  May  22, 
1917  (40  Stat.,  87),  the  increase  of  pay  to  en- 
listed men  of  the  Na\'y,  which  was  to  continue 
until  not  later  than  six  months  after  the  terminar 
tion  of  the  then  existing  war,  was  not  perma- 
nent in  character,  but  for  ser\'ice  under  special 
circumstances  due  to  the  emergency  of  war. 
Accordingly,  it  was  held  that  such  increase 
should  not  be  included  in  the  computation  of 
the  per  cent  additional  pay  for  flpng  duty, 
either  as  pay  or  as  permanent  additions  to  pay 
(citing  24  Comp.  Dec,  139).  However,  the  act 
of  July  11,  1919  (41  Stat.,  140),  changed  the 
natm-e  of  these  increases  and  expressly  de- 
clared them  to  be  the  permanent  rates  of  pay 
of  enlisted  men  of  the  Navy,  to  continue 
throughout  all  existing  enlistments  and  all 
enlistments  or  reenlistments  prior  to  July  1, 
1920.  They  are,  therefore,  permanent  for  all 
existing  and  futiu-e  enlistments  Avithin  these 
bounds.     Accordingly,  it  was  held  that  the  act 


of  July  11,  1919,  created  "a  new  permanent 
base  rate  of  pay  for  each  rating,  and  that  this 
rate  is  to  be  determined  by  adding  to  the  base 
pay  of  a  particular  rating  in  effect  prior  to  July 
11, 1919,  the  increase  applicable  thereto  granted 
by  the  1917  law."  (26  Comp.  Dec,  220,  citing 
and  afiirming  26  Comp.  Dec,  139.) 

Distinguished-service  cross. — An  enlisted  man 
of  the  Navy  who,  while  ser\dng  under  the 
jurisdiction  of  the  Army,  was  awarded  the  dis- 
tinguished-service cross  provided  by  the  act  of 
July  9,  1918  (40  Stat.,  871),  for  persons  serving 
in  any  capacity  with  the  Army,  is  entitled 
upon  his  return  to  the  Na\^  to  the  additional 
pav  at  the  rate  pro\'ided  by  the  act  of  February 
4,  1919  (40  Stat.,  1056),  for  the  recipients  of  the 
Na\-y  cross  for  distinguished  sei-vice.  (26 
Comp.  Dec,  304;  see  also  note  to  sec,  1407, 
R.  S.) 

Navy  mail  clerks. — Where  an  ordinary  seaman 
of  the  Na\'y  is  appointed  assistant  Navy  mail 
clerk  under  the  act  of  May  27,  1908  (35  Stat., 
406),  for  duty  on  board  a  particular  flagship 
named,  the  appointment  of  such  assistant  mail 
clerk  io  not  revoked  by  transfer  of  the  flag  to 
another  ship.  The  proper  oflicer  not  ha\'ing 
directed  the  termination  of  his  sersdces,  and  he 
actually  continuing  to  perform  postal  services, 
such  seaman  is  entitled  to  the  additional  pay; 
but  he  is  not  entitled  to  pay  for  postal  services 
performed  on  board  another  vessel,  as  he  earns 
the  pay  by  services  on  board  the  vessel  to  which 
he  was  designated.     (18  Comp.  Dec,  589.) 

Where  specific  pro^ision  for  the  position  of 
NaA-y  mail  clerk  for  a  fleet  has  been  omitted 
from  the  classes  authorized  in  Navy  regulations, 
such  position  can  not  legally  be  filled;  or,  if 
filled,  the  incumbent  may  not  receive  pay 
therefor.  (24  Comp.  Dec,  491;  but  see,  contra, 
31  Op.  Atty.  Gen.,  320,  July  19,  1918,  noted 
under  sec.  236,  R.  S.,  "Jurisdiction  of  account- 
ing officers  and  heads  of  executive  depart- 
ments.") 

Since  the  laws  relating  to  the  delivery  of 
special  delivery  mail  matter  apply  only  to 
post  offices,  pajonent  to  Na\-y  mail  clerks  and 
assistant  Navy  mail  clerks  of  fees  for  making 
such  deliverv  is  not  authorized.  (25  Comp. 
Dec,  568.) 

For  other  cases,  see  above,  "Pay  of  mates"; 
and  see  below,  "Changes  in  ratings."  _ 

Service  on  submarines. — A  submarine  boat 
in  the  hands  of  the  contractor  and  not  accept- 
ed by  the  Government  is  not  a  "submarine 
vessel  of  the  Navy"  within  the  meaning  of 
Executive  order  of  January  1,  1901,  General 
Order  No.  20,  and  where  enlisted  men  of  the 
Na\'y  are  assigned  to  perform  duty  in  con- 
nection with  the  fitting  out  of  such  submarine 
boat  before  its  acceptance  by  the  Governraent, 
such  men  are  not  entitled  to  the  additional 
pay  as  provided  in  the  said  Executive  order. 
(18  Comp.  Dec,  545.) 

Enlisted  men  of  the  Navy  attached  to  the 
tender  of  a  submarine  group,  "under  instruc- 
tion," already  reported  "qualified"  but  for 
a  different  class  of  submarine  torpedo  boats, 
who  are  performing  actual  duty  on  a  sub- 
marine torpedo  boat  in  commission  but  of  a 
different  class  ft'om  that  for  which  pre\ioiisly 
reported  qualified,  and  are  performing  no 
duty  on  board  the  tender  to  which  attached. 


865 


Sec.  1569. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


are  entitled,  in  addition  to  the  $5  per  month 
provided  for  service  on  submarines,  to  $1  per 
day  for  the  days  on  wliich  their  vessel  is  sub- 
merged, as  provided  by  Executive  order  of 
November  9,  1905.    (19  Comp.  Dec.,  468.) 

Enlisted  men  of  the  Navy  attached  to  a 
tender  of  a  submarine  group,  "under  instruc- 
tion," but  not  yet  reported  "qualified,"  who 
are  performing  actual  duty  on  board  a  sub- 
marine torpedo  boat  in  commission,  but  per- 
forming no  duty  on  board  the  tender  to  which 
attached,  are  entitled  to  the  $5  additional  pay 
prescribed  in  Executive  order  of  January  1, 
1901.     (19  Comp.  Dec,  468.) 

Enlisted  men  of  the  Navy  attached  to  and 
serving  on  submarines  are  entitled  to  the  in- 
creased pay  pro\'ided  for  duty  on  such  vessels 
although  they  are  actually  quartered  and 
messed  on  shore.     (22  Comp.  Dec,  299.) 

Enlisted  men  of  the  Navy  serving  on  a 
submaiine  vessel  are  entitled  to  the  additional 
pay  pro\'ided  for  such  service,  although  such 
vessel  is  merely  in  commission  "in  ordinary." 
(23  Comp.  Dec,  89.) 

An  enlisted  man  of  the  Navy  detailed  as 
instructor  at  a  submarine  school  who,  in  the 
performance  of  duty,  occasionally  submerges 
in  a  submarine  torpedo  boat,  while  under 
way  or  other\vise,  is  not  attached  to  or  serving 
on  board  of  or  with  a  submarine  torpedo  boat 
within  the  meaning  of  Navy  Department 
General  Order  No.  9  of  1905,  so  as  to  be  en- 
titled to  the  additional  pay  of  $1  per  day 
provided  therein.     (25  Comp.  Dec,  533,) 

Gun  captains  and  gun  pointers. — An  enlisted 
man  of  the  Navy  who  is  detailed  as  a  gun 
captain,  and  who  also  holds  a  certificate  of 
graduation  from  the  seamen  gunners'  class,  is 
entitled,  while  so  detailed,  to  additional  pay 
both  as  a  gun  captain  and  under  his  certificate 
as  a  seaman  gunner.     (22  Comp.  Dec,  575.) 

General  Order  No.  137,  of  July  25,  1903, 
pro\ddes  for  additional  pay,  after  qualifica- 
tion, to  enlisted  men  detailed,  under  certain 
restrictions,  as  gun  pointers.  The  restrictions 
are  that  he  be  detailed  at  a  gun  of  the  class  at 
which  he  qualified.  The  order  provides  for 
said  detail  to  be  made  by  the  commanding 
officer  of  a  vessel.  Held,  that  the  officer  in 
command  of  an  enlisted  force  of  the  Navy, 
aboard  a  merchant  ship,  might  well  be  con- 
sidered as  the  commanding  officer  within  the 
meaning  of  said  general  order,  and,  subject  to 
the  further  conditions  of  the  general  order, 
if  an  enlisted  man  be  detailed  at  a  gun  on 
board  a  merchant  ship  of  the  class  at  which 
he  was  qualified,  he  would  be  entitled  to  the 
additional  pay  as  gim  pointer  of  that  class. 
However,  the  pro\asions  of  the  act  of  May  13, 
1908,  limit  the  right  to  the  additional  com- 
pensation to  details  to  guns  of  the  class  at 
which  qualified.     (24  Comp.  Dec,  364.) 

Seamen  gunners'  certificates. — See  notes 
above,  under  "Pay  of  mates,"  and  22  Comp. 
Dec,  575,  noted  above  as  to  pay  of  gun  cap- 
tains. 

An  enlisted  man  who  holds  a  petty  officer's 
certificate  of  graduation  from  electrical  class, 
and  also  holds  a  petty  officer's  certificate  of 
graduation  from  the  seaman  gunner  class,  is 
entitled  to  additional  monthly  pay  for  each 
of  said  certificates  in  accordance  with  Execu- 


tive order  of  September  4,  1902,  promulgated 
in  General  Order  No.  108  of  September  11,  1902. 
(Comp.  Dec,  Apr.  26,  1915,  170  S.  and  A. 
Memo.,  3597.)  But  an  enlisted  man  who 
holds  two  certificates  of  graduation  from  the 
seaman  gunner  class  of  different  schools  is 
entitled  to  additional  pay  for  only  one  such 
certificate.  (Comp.  Dec,  Dec  3,  1914,  166 
S.  and  A.  Memo.,  3461.) 

Coxswains. — The  "coxswains"  who  are  en- 
titled to  additional  pay  under  Executive 
order  of  January  1,  1901,  published  in  General 
Order  No.  20  of  1901,  are  confined  to  those 
regularly  rated  as  coxswains,  and  do  not  in- 
clude men  of  other  ratings  detailed  as  cox- 
swains.    (20  Comp.  Dec,  618.) 

The  additional  pay  of  coxswains  continues 
during  temporary  separation  of  boats  from 
their  ship  unless  their  details  to  such  duty 
are  revoked.  (Comp.  Dec,  May  31,  1917, 
195  S.  and  A.  Memo.,  4260.) 

Ship's  tailors  and  ship's  helpers. — If  the 
total  pay  of  an  enlisted  man  of  the  Navy, 
including  increase  for  foreign  service,  extra 
pay  as  heavy-gun  pointer,  and  additional  pay 
as  ship's  tailor,  exceeds  $50  per  month,  he  is 
only  entitled  to  receive  sufficient  of  the  ad- 
ditional pay  as  ship's  tailor  to  make  his  total 
pay  amount  to  §50  per  month,  in  view  of 
General  Order  No.  186,  June  5,  1905,  in  which 
it  is  stated  that  a  ship's  tailor's  monthly  pay 
shall  not  exceed  $50.     (15  Comp.  Dec,  87.) 

General  Order  No.  186,  dated  June  5,  1905, 
limits  the  payment  of  additional  pay  to  ship's 
tailors  and  ship's  helpers  to  men  detailed  to 
perform  the  duties  on  board  vessels,  and  fix 
a  sliding  scale  of  monthly  compensation  based 
on  the  complement  of  the  vessel.  Accordingly, 
held,  that  the  act  of  May  13,  1908,  does  not 
authorize  payment  under  any  other  conditions, 
and  the  conditions  may  not  after  the  date  of 
that  act,  be  changed  by  Executive  order.  (24 
Comp.  Dec,  364.) 

The  increased  rates  of  pay  pro%TLded  for  the 
enlisted  personnel  of  the  NaA-y  by  the  act  of 
May  22,  1917  (40  Stat.,  87),  which,  by  the  act 
of  July  11,  1919  (41  Stat.,  139),  became  part  of 
the  permanent  base  rates  of  pay  of  enlisted  men 
in  certain  enlistments,  should  be  included  in 
arri%dng  at  the  total  pay  of  ship's  tailors  and 
helpers.     (26  Comp.  Dec,  258.) 

Petty  officer's  c£rtificates. — -See  note  below 
under  "Men  furloughed  without  pay";  and 
see  note  above,  under  "Seamen  gunners'  cer- 
tificates. " 

Good-conduct  medals,  pins,  and  bars. — See  also 
notes  above,  under  "Pay  of  mates,  "  and  "Pay 
of  insular  force";  and  see  notes  below,  under 
"Changes  in  ratings. " 

Prior  to  the  passage  of  the  act  of  May  13,1908 
(35  Stat.,  217),  the  rates  of  pay  for  the  various 
ratings  for  good-conduct  medals,  and  for  most 
of  the  extra  duty  and  detail  pay  was  pro\dded 
for  by  Executive  orders,  in  accordance  with 
section  1569,  Revised  Statutes.  The  addi- 
tional pay  allowed  to  holders  of  good-conduct 
medals,  pins,  or  bars  was  last  fixed  by  Execu- 
tive order  incorporated  in  General  Order  No. 
108,  dated  September  11,  1902.  By  enactment 
of  May  13,  1908,  the  additional  pay  for  medals, 
pins,  and  bars  became  statutory  rates.  (26 
Comp.  Dec,  428.) 


866 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1569. 


Medals,  pina,  and  bars  awarded  to  enlisted 
men  for  service  in  the  insular  force  of  the  Navy 
entitle  the  holders  thereof,  after  transfer  to  the 
Regular  Navy  for  general  sendee,  to  the  addi- 
tional pay  authorized  by  Executive  order 
of  September  4,  1902,  embodied  in  General 
Order  No.  108,  September  11,  1902,  and  article 
3664,  Navy  Regulations,  1913;  plus  10  per  cent 
increase  thereof  as  authorized  by  act  of  May  13, 
1908  (35  Stat.,  128).  (27  Comp.  Dec,  468.) 
Also,  an  enlisted  man  of  the  Navy  is  entitled  to 
be  credited  mth  pay  for  a  good-conduct  medal 
granted  to  him  for  service  in  the  Marine  Corps. 
(20  Comp.  Dec,  360.) 

9.  Longevity  pay,  General  Order  No. 
34. — See  also  note  above,  under  "Mess  attend- 
ants and  cooks";  and  see  notes  below,  under 
"Retired  enlisted  men,"  "Men  transferred  to 
Fleet  Naval  Resen^e,"  "Men  furloughed  with- 
out pay, "  "  Naval  Academy  Band, ' '  and  ' ' Men 
extending  enlistments."  Further,  see  note  to 
section  1573,  Revised  Statutes. 

The  complete  control  given  the  President  by 
section  1569,  Rex-ised  Statutes,  over  the  pay 
of  enlisted  men  certainly  justified  the  Presi- 
dent in  establishing  more  than  one  amount  as 
the  pay  of  a  rating.  If  he  may  fix  the  pay  of  a 
fireman,  first  class,  at  $35  per  month,  he  may 
also  fix  the  amounts  to  be  paid  in  that  rating  at 
$35,  $40,  and  $43,  as  done  by  General  Order  No. 
34  of  1906,  and  allow  the  amount  of  $40  to  those 
of  that  rating  having  foiu"  years'  experience 
under  the  conditions  stated  in  the  order,  and 
the  amount  of  $43  to  those  of  that  rating  ha\'ing 
eight  years'  experience.  Neither  period  of 
former  experience  must  necessarily  be  the 
period  immediately  preceding  the  last  enlist- 
ment, but  may  have  been  at  any  time,  contin- 
uous reenlistment  not  being  required. _  In  addi- 
tion to  the  pay  so  fixed  by  the  President,  the 
men  are  entitled  to  the  $1.36  per  month  allowed 
by  the  act  of  March  3, 1899,  if  they  come  within 
its  terms  as  to  reenlistment  within  four  months, 
etc.  (13  Comp.  Dec,  448,  distinguishing  8 
Comp.  Dec,  227,  noted  above,  relating  to  con- 
tinuous ser\'ice  pay  of  mess  attendants.) 

Na\y  Department  General  Order  No.  34 
of  November  28,  1906,  publisliing  Executive 
order  of  November  27,  1906,  proxiding  $5  per 
month  and  $8  per  month  additional  pay_  for 
trained  men  who  are  citizens  of  the  United 
States,  was  \vithin  the  authority  of  the  President 
under  section  1569,  Revised  Statutes,  and 
not  contrary  to  the  act  of  March  3,  1899,  sec- 
tion 16  (30  Stat.,  1008),  proAiding continuous- 
service  pay  of  $1.36  per  month.  (13  Comp. 
Dec,  448.) 

Section  1569,  Revised  Statutes,  proAdded 
that  the  pay  of  enlisted  men  shall  be  fixed  by 
the  President,  and  that  he  might  change  the 
same  from  time  to  time  as  he  deemed  just  and 
proper.  Congress,  by  section  16  of  the  Na\y 
personnel  act  of  March  3,  1899,  proiided  that 
to  the  rates  of  pay  thus  established  by  the 
President  the  enlisted  men  shall  in  addition 
receive  an  increase  of  $1.36  per  month  for  each 
continuous  reenlistment.  Congress  ha\ing  un- 
dertaken to  pro\'ide  for  continuous-service  pay 
the  general  authority  of  the  President  to  fix  the 
pay  of  enlisted  men  of  the  Navy  was  modified 
to  that  extent,  but  to  that  extent  only.  Gen- 
eral Order  No.  34  of  1906  does  not  attempt 


to  provide  for  continuous-service  pay,  but  does 
undertake  to  provide  for  pay  based  on  length 
of  service,  or  longe\T.ty  pay.  The  main  pur- 
pose of  the  statute  pro\dding  for  continuous- 
service  pay  was  to  encourage  immediate  reen- 
listment, while  that  of  General  Order  No.  34 
was  to  establish  higher  rates  of  pay  for  trained 
men.  (13  Comp.  Dec,  448;  17  Comp.  Dec, 
27   32  ) 

By  the  terms  of  General  Order  No.  34  of  1906, 
no  one  but  a  citizen  of  the  United  States  is  en- 
titled to  receive  the  additional  pay  therein  pro- 
vided, and  it  follows  that  a  payment  of  it  to  one 
not  a  citizen  would  be  an  illegal  payment  and 
credit  could  not  be  allowed  a  pajonaster  making 
such  payment.  The  pa>Tnaster  should,  there- 
fore, for  his  own  protection,  check  all  such  pay- 
ments made  for  periods  prior  to  the  date  on 
which  the  man  became  a  citizen.  (14  Comp. 
Dec,  267.) 

An  enlisted  man  of  the  Navy  who  was  not  a 
citizen  of  the  United  States  at  the  time  of  his 
reenlistment,  but  who  was  naturalized  during 
his  second  period  of  service,  is  entitled  to  the 
additional  pay  proiided  by  Executive  order  of 
November  27,  1906  (General  Order  No.  34), 
fi'om  the  date  of  his  naturalization,  if  he  other- 
wise comes  within  the  scope  of  said  order. 
(14  Comp.  Dec,  284;  18  Comp.  Dec,  617.) 

A  person  of  Chinese  descent,  born  in  the 
United  States  of  Chinese  parents,  is  a  citizen  of 
the  United  States  within  the  meaning  of  Gen- 
eral Orders  Nos.  34  and  62  of  the  Navy.  (18 
Comp.  Dec,  1026.) 

A  minor  residing  in  this  country  became  a 
citizen  of  the  United  States  upon  the  natural- 
ization of  his  stepfather,  and  being  enlisted  in 
the  Navy  and  otherwise  qualified  is  entitled  to 
the  additional  pay  pro\'ided  by  General  Order 
No.  34  of  November  28,  1906.  (19  Comp.  Dec, 
641.) 

An  enlisted  man  of  the  Navy  who  is  given  a 
bad-conduct  discharge  and  subsequently  re- 
enlists  is  not  entitled  during  his  enlistment 
next  following  such  discharge  to  any  increase 
of  pay  under  the  provisions  of  General  Order 
No.  34  of  1906.  (19  Comp.  Dec.  768;  20 
Comp.  Dec,  856.) 

An  enlisted  man  of  the  Navy  dishonorably 
discharged  pursuant  to  sentence  of  court- 
martial  mthin  three  months  preceding  the  ex- 
piration of  his  enlistment,  and  recommended 
for  reenlistment,  is  not  entitled  on  reenlistment 
to  any  additional  pay  under  General  Order  No. 
34  of  190G.  (21  Comp.  Dec,  871;  see  also 
Comp.  Dec,  Aug.  31,  1914,  70  MS.  Comp. 
Dec,  931.) 

Enrolled  men  transferred  from  the  Naval 
Reserve  Force  to  the  Regular  Navy  to  serve  the 
unexpired  term  of  they:  enrollment  "shall  be 
entitled  to  and  receive  the  same  pay,  rights, 
privileges,  and  allowances  in  all  respects  as 
now  pro\'ided  by  existing  law  for  men  regu- 
larly discharged  and  reenUsted  immediately 
upon  the  expiration  of  their  full  four  year  en- 
listment in  the  Regular  Navy."  (Act  July  11, 
1919,  41  Stat.,  139.)  Under  this  act,  held, 
that  enrolled  men  of  the  Naval  Reser\'e  Force 
so  transferred  to  the  Regular  Navy  are  entitled, 
from  the  date  the  transfer  is  consummated,  to 
increase  of  pay  for  continuous  ser\dce  and  under 
General  Order  No.  34  of  1906,  as  well  as  to 


867 


Sec.  1569. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


honorable-discharge  gratuity.     (26  Comp.  Dec, 
33.) 

The  act  of  July  11,  1919  (-11  Stat.,  141),  pro- 
■v-irlos  that  "any  onlisled  man  of  the  Navy  or 
Marino  Corps  who  has  been  or  may  be  dis- 
charged to  enable  him  to  accept  appointment 
as  a  commi.ssionod  or  warrant  officer  in  the 
Naval  Reserve  Force  or  Marine  Corps  Reserve, 
and  who  reenlists  in  the  Navy  or  Marine  Corps 
after  the  termination  of  his  reser\'e  service, 
shall  be  entitled,  in  computing  serAdce  for 
retirement,  to  credit  for  all  active  reserve  serv- 
ice; and  if  he  reenlists  in  the  Navy  or  Marine 
Corps  within  four  or  three  months,  respectively, 
from  the  date  of  the  termination  of  his  service  as 
an  officer  of  the  reserve,  he  shall  be  restored  to 
the  grade  or  rank  held  by  him  before  being 
discharged  to  accept  such  commission  or  war- 
rant, and  his  ser\'ice  in  the  Regular  Na^^  or 
Marine  Corps,  including  his  active  service  in 
the  Naval  Reserve  Force  or  Marine  Corps 
Reserve,  shall  be  regarded  as  continuous  for 
purposes  of  continuous-ser\dce  pay."  Held, 
that  this  act  preserves  the  status  previously 
acquired  by  continuity  of  serA-ice,  which,  with- 
out the  pro\dsion,  would  be  lost;  but  it  does 
not  create  any  right  to  permanent  additions  to 
pav  other  than  those  already  acquired.  (26 
Comp.  Dec,  565.) 

Reenlistment  pay_  under  General  Order  No. 
34,  continuous-service  pav  under  the  act  of 
August  22,  1912  (noted  under  sec.  1573,  R.  S.), 
an(I  honorable-discharge  gratuity  under  the  act 
of  August  22, 1912  (noted  under  sec.  1573,  R.  S.), 
are  three  distinct  classifications  of  pay  that 
should  be  kept  separate  and  apart  in  any  con- 
sideration of  an  enlisted  man's  respective  rights 
thereto,  each  being  dependent  upon  conditions 
peculiar  to  itself.  Accordingly,  hfhj,  that  the 
pro^-ision  of  the  act  of  July  11,  1919  (41  Stat., 
141),  that  service  performed  by  the  enlisted 
men  described  therein  "shall  be- regarded  as 
continuous  for  purposes  of  continuous-ser\ice 
pay,"  does  not  entitle  such  men  to  an  increase 
in  continuous-service  pay  and  additional  pay 
under  article  4427,  paragraph  25,  Navy  Regula- 
tions, 1913  (Gen.  Order  No.  34,  1906),  imme- 
diately upon  reenlistment;  that  it  does  not 
entitle  such  men  to  increase  in  continuous- 
service  pay  and  additional  pay  under  General 
Order  No.' 34  of  1906,  upon  the  completion  of 
four  years  from  date  of  last  reenlistment  in  the 
Na\y ;  that  the  pay  of  such  men,  upon  restora- 
tion, including  permanent  additions  pre\'iously 
earned  by  reason  of  continuity  of  serxdce,  will 
remain  unchanged  for  the  period  of  their  en- 
listment, except  as  it  may  be  affected  by 
changes  in  law  or  rating;  and  that  such  men 
will  not  be  entitled  to  honorable-discharge 
gratuity  immediately  upon  reenlistment  or 
upon  the  completion  of  four  years'  service  fi'om 
date  of  last  reenlistment  in  the  Navy.  (26 
Comp.  Dec,  565.  Compare,  25  Comp.  Dec, 
440,  noted  below,  under  "Retired  enlisted 
men.") 

For  the  purpose  of  computing  payment  of 
honorable-discharge  gratuity,  continuous-serv- 
ice pay,  and  pay  under  General  Order  No.  34 
(1906),  enlistments  in  the  Naw  for  "  the  period 
of  the  present  war,"  authorized  by  section  3  of 
the  act  of  May  22,  1917  (40  Stat.,  84),  may  be 
considered  to  have  expired  on  date  of  discharge; 


or  in  case  of  an  extension  of  enlistment,  as 
pro\'ided  by  the  act  of  July  11,  1919  (41  Stat., 
139),  on  date  the  extension  becomes  effective. 
(26  Comp.  Dec,  132.) 

As  the  word  "ser\dce"  as  used  in  article  4427 
(25),  Na\y  Regulations,  1913,  and  General 
Order  No.  34,  contemplates  the  performance 
of  duty  or  a  duty  status,  and  as  an  enlistment 
which  expires  while  the  enlisted  man  is  in 
desertion  is  not  a  termination  of  service  by  ex- 

Siration  of  enlistment,  an  enlisted  man  of  the 
aAy  who  deserts,  surrenders  himself  subse- 
quent to  the  period  of  enlistment,  and  is  per- 
mitted to  reenlist,  is  not  entitled  to  pay  under 
General  Order  No.  34,  during  the  enlistment 
following  such  desertion.  (26  Comp.  Dec, 
250.) 

The  right  of  a  man  to  pay  under  General 
Order  No.  34  of  1906  involves  the  question  of 
his  citizenship,  which  is  one  of  fact  which  the 
Comptroller  of  the  Treasury  is  not  required  or 
authorized  to  decide.  (26  Comp.  Dec,  399, 
401.) 

The  basic  pro\isions  of  all  existing  laws  relat- 
ing to  pay  for  reenlistment  in  the  Na\y  are  now 
in  General  Order  No.  34,  Na\y  Department, 
November  28, 1906,  promulgating  an  Executive 
order  of  November  27,  1906,  and  ha\ing  the 
authority  of  law.  General  Order  No.  34  was 
carried  into  the  NaAy  Regulations  of  1913  as 
article4427,  paragraph25.    '(26Comp.  Dec, 565.) 

By  reason  of  prior  service  in  the  Regular 
Navy,  terminated  by  discharge  at  expiration  of 
enlistment,  an  enrolled  member  of  the  Naval 
Reserve  Force  acquires  a  right  to  pay  under 
General  Order  No.  34  while  on  active  duty,  and 
is  entitled  to  the  further  increases  provided  by 
that  order  when  he  transfers  to  the  Regular 
Na\y  to  serve  the  unexpired  portion  of  his 
enrollment,  as  authorized  by  the  act  of  July  11, 
1919.     (26  Comp.  Dec,  778.) 

Enlisted  men  of  the  Na\y  ser\ing  over  four 
years  under  short-term  enlistments  or  exten- 
sions of  enlistments  are  entitled  to  pay  under 
General  Order  No.  34  at  the  expiration  of  the 
first  four  years  of  ser\ice,  either  continuous  or 
dissevered,  and  at  the  expiration  of  each 
four  years  of  ser\ice  thereafter:  Provided, 
That  no  pre\ious  ser\ice  terminated  for  other 
than  expiration  of  enlistment  (unless  on  rec- 
ommendation of  boards  of  medical  survey) 
may  be  counted.     (27  Comp.  Dec,  506.) 

The  period  of  ser\ice  from  which  enlisted 
men  of  the  Navy  were  honorably  discharged  in 
the  course  of  demobilization  under  the  provi- 
sions of  the  act  of  July  11,  1919  (41  Stat.,  139), 
should  be  regarded  as  a  full  statutory  period  of 
four  years,  and  entitles  the  man,  if  otherwise 
qualified,  to  pay  under  General  Order  No.  34 
(1906)  in  subsequent  enlistments.  (28  Comp. 
Dec,  814.) 

10.  Changes  in  rating. — Under  article 
798,  NaAy  Regulations,  1896,  an  enlisted  man 
given  an  acting  appointment  by  the  captain  of 
a  ship  on  a  foreign  station  is  entitled  to 
the  pay  of  the  rating  gi^'en  by  the  appoint- 
ment until  notice  is  received  of  the  disapproval 
of  such  appointment  by  the  Na\y  Department, 
the  disapproval  being  based  upon  noncom- 
pliance with  article  800  of  the  Regulations 
requiring  that,  as  far  as  practicable,  each  class 
of  petty  officers  be  recruited  from  the    next 


868 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1569. 


lower  class,  and  that  they  shall  be  adA^anced 
but  one  class  at  a  time.     (4  Comp.  Dec,  77.) 

The  rate  of  pay  of  an  enlisted  man  in  the 
naval  ser\dce  depends  upon  the  orders  estab- 
lishing his  rating,  and  is  not  affected  by  the 
fact  that  notice  of  a  change  in  rating  is  not 
communicated  to  the  proper  pay  officer  pur- 
suant to  article  826  of  the  Navy  Regulations  of 
1896.     (4  Comp.  Dec,  95.) 

An  enlisted  man  of  the  Naiy  who,  while 
holding  the  rating  of  ship  fitter,  first  class,  is 
appointed  acting  chief  carpenter's  mate,  is  en- 
titled while  ser\T.ng  under  said  appointment 
only  to  the  pay  of  an  acting  chief  carpenter's 
mate,  notmtlistanding  that  it  is  less  than  the 
pay  of  a  ship  fitter.     (12  Comp.  Dec,  346.) 

Where  an  acting  bandmaster  of  the  Navy, 
who  was  not  a  citizen  of  the  United  States, 
received  a  permanent  appointment  as  band- 
master under  article  852,  Navy  Regulations, 
1905,  after  the  examination  provided  by  said 
article,  and  performed  the  duties  of  such 
office,  he  is  entitled  to  retain  the  pay  he  re- 
ceived under  said  appointment,  notwithstand- 
ing that  said  article  required  that  men  to  whom 
such  appointments  were  issued  be  citizens  of 
the  United  States.     (14  Comp.  Dec,  267.) 

The  Navy  Regulations,  1900  (art.  948),  pro- 
Added  that  "apprentices,  third  class,  shall  be 
rated  apprentices,  second  class,  immediately 
before  being  transferred  from  the  training  serv- 
ice to  general  service,  and  shall  not  again  be 
reduced  below  that  rating  while  continuing  in 
general  serAdce,  except  by  sentence  of  a  court- 
martial  . ' '  Held,  that  an  apprentice  of  the  third 
class  in  the  Na\y,  transferred  to  the  general 
8er\dce  while  said  regulation  was  in  force, 
was  entitled  to  the  rating  of  an  apprentice 
of  the  second  class  immediately  before  such 
transfer;  that  the  duty  enjoined  upon  the  com- 
manding officer  was  ministerial  and  a  mere 
formality;  and  where  the  commanding  officer 
neglected  to  perform  such  duty  until  more  than 
five  months  after  the  transfer,  his  neglect  could 
not  have  the  effect  to  deprive  the  apprentice 
of  the  pay  to  wliich  he  was  entitled  under 
General  Order  No.  20  of  January  1,  1901;  that 
the  regulation  and  the  Executive  order  fix  the 
man's  right  to  pay,  and  he  should  not  be  made 
to  suffer  because  the  commanding  officer  neg- 
lected to  perform  a  ministerial  and  formal  act. 
(15  Comp.  Dec,  459.) 

When  enlisted  men  of  the  NaA-y  take  the 
required  oath  and  enter  upon  their  duties  as 
NaA^y  mail  clerks  and  assistant  NaA-y  mail 
clerks,  as  proAdded  in  the  act  of  May  27,  1908 
(35  Stat.,  417),  by  order  of  their  commanding 
officer,  and  are  recommended  by  said  officer  for 
designation  from  the  date  on  which  they  en- 
tered upon  their  duties,  which  recommenda- 
tion is  subsequently  approved  by  the  Secretaiy 
of  the  NaA-y  and  the  designation  made  by  the 
Postmaster  General,  such  enlisted  men  are  en- 
titled to  the  additional  pay  pro\dded  for  in  the 
act  of  May  27,  1908,  from  the  date  on  which 
they  took  the  oath  and  entered  upon  their 
duties.     (16  Comp.  Dec,  442.) 

The  pay  of  a  new  rating  to  which  an  enlisted 
man  of  the  NaAy  is  reduced  by  sentence  of 
summary  court-martial  becomes  his  proper  pay 
on  the  date  of  the  approval  of  the  sentence  by 
the  senior  officer  present.  (17  Comp.  Dec,  489.) 


As  soon  as  the  new  system  of  ratings  proAdded 
in  the  act  of  August  29,  1916  (39  Stat.,  572),  for 
the  enlisted  force  of  the  Hospital  Corps  shall 
have  l)een  established,  enlisted  men  thereof 
then  rated  as  hospital  apprentices,  second  class, 
shall  be  paid  only  $19  per  month,  although 
prior  to  the  passage  of  that  act  or  the  establish- 
ment of  the  ratings  therein  provided  they  were 
serAdng  as  hospital  apprentices  at  $20  per 
month.     (23  Comp.  Dec,  231.) 

The  statement  by  a  commanding  officer  of 
the  NaA'y,  over  his  signature,  that  a  rating  of 
an  enlisted  man  was  actually  changed  on  a 
certain  date,  is  sufficient  cAddence  to  entitle 
the  man  to  the  increase  in  pay  from  that  date. 
(26  Comp.  Dec,  .393.) 

11.  Comraenceinent  of  pay. — See  note  to 
section  1418,  Re\dsed  Statutes,  under,  "When 
enlistment  complete." 

12.  Leave  of  absence. — A  Navy  mail  clerk 
absent  from  his  vessel  and  undergoing  treatment 
at  a  hospital  on  shore,  when  he  can  not  perform 
his  duties  as  Na-xy  mail  clerk,  is  not  entitled  to 
the  additional  pay.  The  additional  pay  of  such 
mail  clerks,  under  the  act  of  May  27,  '1908  (35 
Stat.,  417),  is  dependent  upon  the  performance 
of  the  ser\ices  prescribed  by  said  act.  (15 
Comp.  Dec,  548.) 

An  enlisted  man  of  the  Navy  regularly  de- 
tailed to  perform  the  duties  of  "ship's  tailor" 
is  entitled  while  on  leave  to  the  additional  pay 
provided  by  General  Order  No.  186,  June  5, 
1905,  of  the  NaA^y  Department,  pro\dded  that 
no  one  has  been  detailed  to  perform  his  duties 
as  ship's  tailor  during  his  absence  on  leave. 
(15  Comp.  Dec,  894.) 

Enlisted  men  of  the  NaAy  on  authorized 
leave  are  not  entitled  to  the  $5  per  month 
additional  pay  for  submarine  service  authorized 
by  Executive  order  of  January  1,  1901.  (19 
Comp.  Dec,  754.) 

Enlisted  men  of  the  NaA'y  properly  detailed, 
under  the  act  of  March  3,  1915  (38  Stat.,  928), 
for  duty  invohing  actual  flying  in  aircraft,  are 
entitled  to  the  additional  pay  pro\ided  in  that 
act  while  on  authorized  leave  of  absence  -nithin 
the  period  of  such  detail.  (22  Comp.  Dec,  292.) 

An  ordinary  seaman  detailed  as  jack-of-the- 
dust  is  entitled  while  on  leave  of  absence  to  the 
additional  pay  allowed  for  such  detail  by  Gen- 
eral Order  No.  178  of  November  29, 1904.  (Comp. 
Dec,  Aug.  17,  1905,  54  S.  and  A.  Memo.,  585.) 
So  also  a  chief  petty  officer  detailed  as  instructor 
of  apprentice  seamen  is  entitled  to  additional 
pay  under  General  Order  No.  34  of  November 
28,  1906,  while  on  leave,  if  his  detail  remain 
unrevoked.  (Comp.  Dec,  Nov.  12,  1910,  117 
S.  and  A.  Memo.,  1617.) 

See  act  of  June  5,  1920  (41  Stat.,  975,  976), 
as  to  furlough  fare  certificates  for  travel  of  dis- 
abled enlisted  men. 

13.  Forfeiture  of  pay. — ^The  forfeiture  in- 
curred by  a  deserter  under  the  Army  Regula- 
tions is  not  a  fine  which  the  soldier  may  be 
compelled  to  pay  out  of  any  property  he  pos- 
sesses, by  imprisonment  if  need  be;  nor  is  it, 
strictly  speaking,  a  punishment;  but  it  relates 
solely  to  the  soldier's  rights  under  his  contract 
of  enlistment,  and  is  a  forfeiture  of  moneys 
that  were  due  and  payable  under  it  in  conse- 
quence of  his  contract,  and  still  would  be  if  he 
had  not  deserted;  and  for  the  purpose  of  de. 


869 


Sec.  1569. 


PL  2.  REVISED  STATUTES 


The  Navy. 


termiuing  what  the  soldier's  rights  are,  to  re- 
ceive money  from  the  United  States  under  or 
in  consequence  of  hia  contract,  the  fact  of 
desertion  need  not  be  established  by  the  record 
of  a  court-martial.  As  the  entiy  of  desertion 
on  the  muster  roll  may  sometimes  have  been 
improperly  made,  and  may  afterward  be  can- 
celed by  the  War  Department  on  proof  that  the 
soldier  did  not  desert,  it  may  happen  that  the 
soldier  by  the  cancellation  of  such  an  entry 
becomes  entitled  to  bountv  previously  withheld 
from  him.    (13  Op.  Atty.'Gen.,  188,  199.) 

Under  a  law  proAdding  that  "all  forfeitures 
on  account  of  desertion"  should  be  used  for 
the  support  of  the  National  Asylum  for  Dis- 
abled Volunteer  Soldiers,  installments  of 
bounty  which  are  not  already  due  and  pay- 
able to  a  soldier  at  the  time  he  deserts  never 
become  due  and  payable  in  case  he  does  not 
return  or  is  not  returned  to  the  service,  and 
therefore  are  not  forfeited  in  the  legal  sense 
of  that  word.  Nor,  in  case  the  deserter  re- 
turns or  is  apprehended  and  put  back  into 
service,  are  such,  installments  forfeited  on 
account  of  desertion,  because  either  the  soldier 
on  serving  out  his  term  is  entitled  to  receive 
them,  or  they  never  become  due  and  payable 
by  reason  of  his  desertion.  But  the  install- 
ments and  bounty  due  and  payable  at  the 
time  of  desertion  are  forfeited  thereby,  in  both 
those  cases,  and  become  payable  to  the  board 
of  managers  of  the  National  Asylimi  for  Dis- 
abled "Volunteer  Soldiers.  (13  Op.  Atty. 
Gen.,  188.) 

A  soldier  who  had  deserted  but  was  restored 
to  duty  by  order  of  his  department  commander 
without  trial,  on  condition  that  he  make  good 
the  time  lost  (about  two  months),  and  who 
complied  with  the  condition  and  was  honor- 
ably discharged  at  the  expiration  of  his  term 
of  service,  held,  entitled  to  bounty  money 
not\vithstanding  his  desertion.  (U.  S.  v. 
Kelly,  15  Wall.,  34.  Note:  This  decision 
related  to  money  accruing  subsequent  to  the 
desertion,  and  not  to  money  due  and  payable 
at  the  time  of  desertion;  see  U.  S.  v.  Landers, 
92  U.  S.,  77.) 

The  honorable  discharge  of  the  deserter 
was  a  formal,  final  judgment,  passed  by  the 
Government  upon  the  entire  military  record 
of  the  soldier,  and  an  authoritative  declara- 
tion by  it  that  he  had  left  the  service  in  a 
status  of  honor;  as  such  it  dispensed  altogether 
with  the  supposed  necessity  that  the  soldier 
must  obtain  bounty  by  removal,  by  order, 
of  the  charge  of  desertion  fi'om  the  rolls,  and 
amounted  of  itself  to  the  removal  of  any  charge 
or  impediment  in  the  way  of  his  receiving 
bounty.  (U.  S.  v.  Kelly,  15  Wall.,  34;  com- 
pare U.  S.  V.  Landers,  92  U.  S.,   77.) 

Forfeiture  of  pay  and  allowances  up  to  the 
time  of  the  desertion  follows  from  the  condi- 
tions of  the  contract  of  enlistment,  which  is 
for  faithful  service.  The  contract  is  an  en- 
tirety; and  if  service  for  any  portion  of  the 
time  is  criminally  omitted,  the  pay  and  al- 
lowances for  faithfxil  service  are  not  earned. 
And  for  the  purpose  of  determining  the  rights 
of  the  soldier  to  receive  pay  and  allowances 
for  past  services,  the  fact  of  desertion  need  not 
be   established    by   the   findings  of  a     court- 


martial;  it  is  sufficient  to  justify  a  A\ithholding 
of  tlie  moneys  that  the  fact  appears  upon  the 
muster  rolls  of  his  company.  But  forfeiture 
of  pay  and  allowances  for  future  service,  as  a 
condition  of  restoration  to  duty,  can  only  be 
imposed  by  a  court-martial.  (U.  S.  v.  Land- 
ers, 92  U.  S.,  77,  79,  explaining  U.  S.  v.  Kelly, 
15  Wall.,  34.) 

An  honorable  discharge  granted  to  a  soldier 
who  has  been  restored  to  duty  after  desertion, 
and  whose  conduct  subsequent  to  his  resto- 
ration to  duty  entitled  him  to  such  honorable 
discharge,  could  not  relieve  him  from  the  con- 
sequences of  the  judgment  of  a  military  court 
and  entitled  him  to  pay  and  allowances  which 
that  court  had  adjudged  to  be  forfeited.  The 
forfeiture  must  first  be  removed,  either  by  its 
remission  in  terms,  or  by  the  reversal  of  the 
judgment,  or  the  pardon  of  the  President. 
(U.  S.  V.  Landers,  92  U.  S.,  77,  80,  explaining 
U.  S.  V.  Kelly,  15  Wall.,  34.:) 

Where  a  deserter  at  larg  surrenders  and  is 
restored  to  duty  \\dthout  trial,  but  the  facts 
clearly  establish  that  he  had  deserted,  he  is 
not  entitled  to  payment  of  the  amount  due 
him  at  the  time  of  his  desertion,  not\vithstand- 
ing  that  the  Bureau  of  Navigation  may  have 
removed  the  mark  of  desertion  on  the  alleged 
ground  that  it  was  erroneously  entered.  (27 
Comp.  Dec,  4G,  citing  14  Comp.  Dec,  412.) 

The  pay  of  enlisted  men  of  the  Navy  being 
fixed  by  the  President  and  sul^ject  to  regula- 
tion by  him,  a  regulation  providing  that  en- 
Hsted  men  absent  from  duty  without  leave 
shall  forfeit  all  pay  while  so  absent  is  valid; 
and  a.n  enlisted  man  so  absent  is  not  entitled 
to  pay  for  the  period  of  such  absence,  although 
his  absence  was  caused  by  his  arrest  by  the 
civil  authorities.     (9  Comp.  Dec,  231.) 

An  enlisted  man  of  the  Navy  absent  from 
his  station  and  duty  without  leave  is  not  en- 
titled to  pay  for  the  time  so  absent,  but  upon 
his  apprehension  and  delivery  to  the  naval 
authorities  he  is  thereafter  entitled  to  pay 
unless  it  shall  be  forfeited  by  sentence  of  a 
court-martial.     (15    Comp.    Dec,    386.) 

No  deduction  is  to  be  made  for  the  naval 
hospital  fund  for  any  peiiod  that  an  enlisted 
man  is  absent  without  leave.  (18  Comp. 
Dec,  724;  see  sec.  4808,  K.  S.) 

The  pay  of  an  enlisted  man  of  the  Navy 
held  by  the  civil  authorities  for  trial  on  a 
criminal  charge  should  not  be  paid  unless  he 
is  acquitted;  and  if  found  guilty  his  pay  is 
then  forfeited  to  the  United  States  fi-om  the 
date  of  his  arrest.     (2  Comp.  Dec,  584.) 

Where  a  carpenter's  mate  of  the  Navy  was 
arrested  by  the  civil  authorities  on  a  criminal 
charge  and  admitted  on  to  bail  on  his  own  re- 
cognizance, and  his  trial  indefinitely  post- 
poned, and  it  was  apparently  not  the  inten- 
tion of  the  authorities  to  further  prosecute 
the  case,  his  pay  was  not  thereby  forfeited. 
(10    Comp.     Dec,    490.) 

When  enlisted  men  of  the  Navy  have  been 
tried  and  acquitted  by  coiurt-martial  of  the 
charge  of  desertion,  such  acquittal  is  also  an 
acquittal  of  absence  without  leave,  and  the 
pay  department  and  accounting  officers  should 
follow  the  judgments  in  such  cases  and  con- 
sider such  enlisted  men  as  being  in  a  pay 


870 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1569. 


statiis  during  the  period  that  they  were  charged 
with  being  in  desertion.  (16  Comp.  Dec, 
480.) 

An  enlisted  man  of  the  Navy  released  from 
the  custody  of  the  ci\-il  authorities  on  bail,  who 
reports  at  his  regular  station  for  duty,  is  not  to 
be  deprived  of  his  pay  after  so  reporting  simply 
because,  due  solely  to  the  fact  that  he  was  on 
bail,  no  naval  duty  was  assigned  him.  (22 
Comp.  Dec,  374.) 

A  soldier  who  was  arrested  by  the  ci\il  author- 
ities on  a  charge  of  murder,  of  which  he  was 
con\-icted,  is  not  entitled  to  pay  or  allowances 
after  the  date  of  his  arrest,  although  pending 
his  trial  he  was  discharged  by  reason  of  the 
expiration  of  his  term  of  enlistment.  (9  Comp. 
Dec,  249.) 

A  soldier  who  claimed  that  his  enlistment 
in  the  Army  was  illegal,  and  endeavored  to  se- 
cure his  release  by  habeas  corpus  proceedings 
which  were  decided  against  him  by  the  Su- 
preme Court,  held,  not  entitled  to  pay  and 
allowances  for  the  time  that  his  litigation  was 
pending  in  the  ci\il  courts  and  no  sefvice  was 
being  rendered  by  him  to  the  United  States,  he 
ha%ing  secured  his  release  by  decision  of  the 
lower  court  which  was  reversed  on  appeal. 
(Grimley  r.  T.  S.,  32  Ct.  Cls.,  285.) 

The  pay  and  allowances  of  an  enlisted  man 
of  the  Na\y  can  not  be  withheld  because  he  may 
have  been  engaged  in  the  performance  of  serv- 
ice prohibited  by  law,  pro\T.ded  that  he  was 
not  enlisted  solely  for  the  performance  of  such 
illegal  ser\ice.     (6  Comp.  Dec,  756.) 

If  men  are  properly  enlisted  in  the  naval 
service,  it  is  not  material  to  the  accounting  offi- 
cers whether  they  are  at  all  times  lawfully  en- 
gaged or  not.  That  is  a  matter  regulated  by 
the  Na\-y  Department.  The  legality  of  such 
ser\'ice  can  become  material  to  the  accounting 
officers  only  where  the  enlistments  are  made 
solely  for  such  illegal  purpose,  and  then  only  in 

Eassing  upon  payments  made  under  said  en- 
stments.     (6  Comp.  Dec,  756.) 

Absence  fi-om  duty  on  account  of  injury, 
sickness,  or  disease  resulting  from  misconduct 
of  an  enlisted  man  shall  forfeit  his  pay  for  the 
time  of  such  absence.  (See  act  of  Aug.  29, 
1916,  39  Stat.,  580,  as  amended  by  act  of  July 
1,  1918,  40  Stat.,  717,  noted  under  sec.  1556, 
R.  S.,  under  "Absence  from  duty." 

For  other  cases,  see  note  to  section  1556,  Re- 
vised Statutes,  relating  to  pay  of  officers. 

14.  Men  transferred  to  Fleet  Naval  Re- 
serve.— Since  the  transfer  of  an  enlisted  man 
of  the  Regular  Na\'y  to  the  Fleet  Naval  Reserve 
at  the  expiration  of  enlistment,  after  16  years' 
serA-ice,  has  the  effect  of  relie\'ing  him  of  all 
obligation  under  said  contract  of  enlistment, 
it  is  to  all  intents  and  purposes  a  discharge  at 
the  expiration  of  enlistment,  so  as  to  entitle 
him  to  travel  allowance  as  provided  bv  the  act 
of  June  29,  1906  (34  Stat.,  555).  (25  Comp. 
Dec,  609.) 

A  transferred  member  of  the  Fleet  Naval  Re- 
serve, whose  transfer  was  made  after  20  years' 
ser\-ice  in  the  Regular  Na\'y  and  not  at  the 
expiration  of  enlistment,  and  who  subsequently 
was  discharged  from  the  Fleet  Naval  Reserve 
and  reenlisted,  next  day,  in  the  Regular  Na\'y, 
is  not  entitled  to  credit  for  continuous-serA-ice 
increase  of  pay,  or  for  the  increase  under  Gen- 


eral Order  No.  34  of  1906.  The  cases  of  trans- 
ferred members  are  not  covered  by  the  pro- 
\ision  in  the  act  of  August  29,  1916  (39  Stat., 
590),  with  respect  to  enrolled  members  of  the 
Naval  Reserve  Force  who  ai'e  discharged  there- 
from and  reenlist  in  the  Regular  NaAy ,  nor  is  it 
covered  by  23  Comp.  Dec,  535,  which  related 
to  enlisted  men  of  the  NaA-y  transferred  to  the 
Fleet  NaAal  Reser^'e  at  expiration  of  a  period 
of  enlistment  and  subsequently  reenlisting  in  the 
Regular  Navy.  (25  Comp.  Dec,  884;  see  also 
note  to  sec.  1573,  R.  S.,  as  to  centinuous- 
ser^ice  pay.) 

Enlisted  men  transferred  to  the  Fleet  Naval 
ReserAe  after  16  or  20  years'  service,  whose 
ratings  at  the  time  of  transfer  entitled  them  to 
honorable  discharge,  and  who  as  reser\-ists  are 
not  retained  on  active  duty,  are  entitled  at 
time  of  transfer  to  travel  allowance  at  5  cents 
per  mile  from  the  place  of  transfer  to  their 
actual  bona  fide  home  or  residence  or  place  of 
original  muster  into  the  serA-ice,  at  their  option, 
as  proA-ided  by  act  of  February  28,  1919  (40 
Stat.,  1203).     (26  Comp.  Dec,  636.) 

For  other  cases,  see  note  to  section  1556,  Re- 
\ised  Statutes,  under  "Naval  Reserve  Force." 

15.  Men  furloughed  without  pay. — An 
enlisted  man  who  has  been  discharged  by 
purchase  or  by  special  order,  and  who  upon 
such  discharge  has  refunded  the  cost  of  cloth- 
ing outfit,  is  entitled  upon  reentry-  into  the 
ser\ice  on  a  second  enlistment  to  a  new  outfit, 
subject  only  to  the  condition  that  the  total  net 
cost  of  outfits  fm'uished  anv  one  man  shall  not 
exceed  $60.  (Act  Mar.  3,  1915,  38  Stat.,  932.) 
An  enlisted  man  furloughed  without  pay, 
under  the  act  of  August  29,  1916  (39  Stat.,  580), 
under  the  same  conditions  and  in  lieu  of  dis- 
charge by  purchase,  and  who  refunded  the  cost 
of  clothing  outfit  issued  to  him,  is  entitled  upon 
recall  to  active  duty  to  the  same  right  to  cloth- 
ing outfit  as  that  proA-ided  by  the  act  of  March 
3,  1915,  for  men  reentering  the  serA"ice  after  dis- 
charge by  purchase.     (24  Comp.  Dec,  191.) 

The  term  "unexpired  portion  of  enlistment, " 
as  used  in  the  act  of  August  29,  1916,  with  re- 
spect to  the  ser-\-ice  of  an  enlisted  man  after 
recall  from  furlough  without  pay,  means  the 
unexpired  portion  of  the  enlistment  at  the 
date  of  recall  from  furlough,  and  not  that 
remaining  when  said  fiu-lough  was  granted. 
(25  Comp.  Dec,  231.) 

An  enhsted  man  of  the  Na\y  furloughed 
without  pay  in  accordance  with  the  act  of 
August  29,  1916  (39  Stat.,  580),  resumes  in  all 
respects  his  former  status  upon  being  recalled 
to  active  senice,  and  upon  discharge  at  the 
completion  of  the  unexpired  portion  of  his  en- 
listment is  entitled  to  travel  allowance,  and 
upon  reenlistment  to  the  honorable-discharge 
gratuity  if  othenvise  authoilzed.  (25  Comp. 
Dec,  231;  see  also  note  to  sec.  1573,  R.  S.,  as  to 
honorable-discharge  gratuity.) 

An  enlisted  man  of  the  Navy  whose  preced- 
ing period  of  enlistment  expired  while  he  was 
on  furlough  without  pay,  as  authorized  by  act 
of  August  29,  1916  (39  Stat.,  580),  and  who, 
therefore,  in  accordance  with  the  practice  then 
prevailing,  did  not  receive  an  honorable  dis- 
charge upon  the  expiration  of  such  enlistment, 
his  enlistment  ha\-ing  been  regarded  as  ter_ 
minated  by  furlough  and  not  by  expiration 


871 


Sec.  1560. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


held,  not  entitled  to  receive  the  additional  pay 
authorized  for  holdini^  a  petty  officer's  cer- 
ficate  (art.  4427,  i)ar,^  8,  Navy  Regs.,  1913, 
C.  N.  R.  3),  or  the  longe\aty  pay  pro\-ided  in 
General  Order  No.  34  of  1906,  or  the  continu- 
ous-service pay  authorized  l)y  act  of  August  22, 
1912  (37  Stat.,  331),  amending  section  1573, 
Revised  Statutes,  all  of  which  payments  are 
ct)nditioned  ujton  reenlistment  after  the  re- 
ceipt of  an  honorable  discharge.  (25  Comp. 
Dec,  328.) 

For  other  cases,  see  note  to  section  1417,  Re- 
\ised  Statutes. 

16.  Men  extending  enlistment.— An  en- 
listed man  of  the  Na\'>'  who  has  a  deposit  to  his 
credit,  under  the  act  of  February  9,  1889  (25 
Stat.,  657),  and  who  elects  to  extend  his  en- 
listment under  the  act  of  August  22,  1912  (37 
Stat.,  331),  may  not  be  repaid  such  deposit 
until  his  discharge  from  his  enlistment,  as 
extended.     (19  Comp.  Dec,  384.) 

The  first  enlistment  of  a  seaman  was  ex- 
tended one  year,  and  during  extension  his 
rating  was  changed  to  gunner's  mate,  third 
class;  at  expiration  of  enlistment,  as  extended, 
he  was  honorably  discharged  and  reenlisted 
within  foiir  months.  Held,  that  on  reenlist- 
ment he  was  entitled  to  four  months'  honorable- 
discharge  gratuity  at  the  rate  of  pay  he  was 
recei\-ing  when  discharged,  wliich  included  his 
rating  pay  as  a  gunner's  mate,  third  class,  and 
that  he  was  entitled  to  citizenship  reenlistment 
pay  (longevity  pay  under  General  Order  No. 
34  of  1906),  and  continuous-ser\dce  pay,  and  10 
per  cent  increase  on  said  total  pay.  (20  Comp. 
Dec,  361;  see  note  to  sec.  1573,  R.  S.,  as  to 
honorable-discharge  gratuity  and  continuous- 
service  pay.) 

Enlisted  men  of  the  Navy  who  extend  their 
enlistments  under  the  provisions  of  the  act  of 
August  22,  1912  (37  Stat.,  331),  are  not  entitled 
to  the  travel  allowance  authorized  by  the  act 
of  June  29,  1906  (34  Stat.,  555),  at  the  expira- 
tion of  the  four-year  period  for  which  they 
originally  enlisted,  but  are  entitled  thereto  at 
the  time  they  are  discharged  at  the  expiration 
of  the  extended  period,  the  reason  being  that 
the  extension  of  enlistment  is  a  modification  of 
their  original  enlistment,  the  extension  thereby 
becoming  a  part  of  their  enlistment.  (20  Comp, 
Dec,  805,  affirming  20  Comp.  Dec,  699;  see 
also,  25  Comp.  Dec,  610.  But  see  act  of  June 
4,  1920,  sec.  6,  noted  below,  under  "Mileage 
and  transportation  on  discharge.") 

The  travel  for  which  enlisted  men  of  the  Navy 
are  entitled  to  travel  allowance  on  discharge  at 
the  expiration  of  their  enlistments  as  extended, 
is  travel  in  the  United  States  from  place  of 
discharge  to  place  of  original  enlistment.  (20 
Comp.  Dec,  805.) 

An  enlisted  man  of  the  Navy  who  surren- 
dered from  desertion  and  was  restored  to  duty 
without  trial,  and  who  after  serving  a  period  of 
probation  was  allowed  to  extend  his  enlistment, 
is  entitled  under  such  extended  enlistment  to 
credit  for  pay  for  continuous  service  and  under 
(Jeneral  Order  No.  34,  his  status  being  the  same 
as  though  he  had  not  been  absent  during  his 
term  of  enlistment.  (25  Comp.  Dec,  920;  see 
note  to  sec.  1573,  R.  S.,  as  to  continuous-service 
pay.) 


The  extension  of  enlistment  law  granted  to 
enlisted  men  of  the  Regular  Na\'y  the  right  to 
continuous-serNdce  increase  of  ])ay  and  to  pay 
under  General  Order  No.  34  of  1906;  and  also 
the  right  to  honorable-discharge  gratuity  if 
the  period  for  which  the  extension  was  made 
aggregates  four  years.  (26  Comp.  Dec,  33,  34, 
citing  63  MS.  Comp.  Dec,  136,  and  68  MS. 
Comp.  Dec,  1200.) 

17.  Retired  enlisted  men. — See  acts  of 
March  3,  1899,  section  17  (30  Stat.,  1008);  June 
22,  1906  (34  Stat.,  451);  March  2, 1907  (.34  Stat., 
1217);  May  13,  1908  (35  Stat.,  128);  March  3, 
1915  (38  Stat.,  941);  August  29,  1916  (39  Stat., 
591);  July  1,  1918  (40  Stat.,  719). 

The  provision  in  the  order  of  the  President  of 
June  24,  1902,  that  "each  enlisted  man  of  the 
Navy  shall  receive  75  cents  per  month,  in  ad- 
dition to  the  pay  of  his  rating,  for  each  good- 
conduct  medal,  pin,  or  bar"  which  he  shall 
have  been  awarded,  applies  to  enlisted  men  on 
the  retired  list,  who  are  entitled  to  the  full 
amount  of  the  additional  pay  provided  for 
therein.     (9  Comp.  Dec,  164,  Oct.  27,  1902.) 

The  retired  pay  of  an  enlisted  man  under  the 
acts  of  March  3,  1899,  and  March  2,  1907,  was  75 
per  cent  of  the  pay  he  was  in  receipt  of  at  the 
date  of  his  retirement;  and  75  cents  per  month 
for  each  good-conduct  medal  held  by  him, 
and  an  increase  of  10  per  cent  on  the  total 
amount  thereof.  (Comp.  Dec,  May  14,  1909, 
S.  and  A.  Memo.  No.  99,  p.  1077,  citing  9  Comp. 
Dec,  164;  14  Comp.  Dec,  176;  and  14  Comp. 
Dec,  830.) 

The  allowances  to  which  retired  enlisted 
men  of  the  Na\'y  are  entitled  are  separate  from 
and  in  addition  to  the  pay  to  which  they  are 
entitled.  The  term  "pay"  used  in  a  special 
statute  providing  for  the  retirement  of  an  en- 
listed man  with  the  retired  "pay"  of  liis  rating 
does  not  include  allowances.  (Comp.  Dec, 
May  14,  1909,  99  S.  and  A.  Memo.,  1077.) 

The  benefits  of  General  Order  No.  34,  of  1906, 
are  limited  by  its  terms  to  those  men  who  re- 
enlist  on  or  after  its  date.  An  enlisted  man 
who  was  retired  prior  to  the  date  of  said  order 
is,  therefore,  not  entitled  to  additional  pay 
thereunder,  nor  was  said  order  made  applicable 
to  him  by  \'irtue  of  the  provisions  in  the  act  of 
May  13,  1908  (35  Stat.,  128),  to  the  effect  that 
"the  pay  of  all  active  and  retired  enlisted 
men  of  the  Navy  is  hereby  increased  ten  per 
centum,"  and  that  "the  pay  of  all  *  *  * 
enlisted  men  of  the  Navy  now  on  the  retired  list 
shall  be  based  on  the  pay,  as  herein  provided 
for,  of  *  *  *  enlisted  men  of  corresponding 
rank  and  service  on  the  active  list."  (15 
Comp.  Dec,  517.) 

Enlisted  men  of  the  Navy,  retired  under  the 
provisions  of  the  act  of  March  2,  1907  (34  Stat., 
1217),  are  entitled  on  retirement  to  three- 
fourths  of  the  pay  they  were  in  receipt  of  at  the 
date  of  retirement,  together  with  the  allowances 
of  $9.50  per  month  in  lieu  of  rations  and  cloth- 
ing, and  $6.25  per  month  in  lieu  of  quarters, 
fuel,  and  light.     (18  Comp.  Dec,  575.) 

The  additional  pay  authorized  for  a  steward 
or  cook  holding  a  certificate  of  qualification 
(G.  O.  62,  Feb.  7,  1908)  is  no  part  of  the  pay  of 
the  rating  held  by  him  at  the  time  of  retirement, 
and  should  not  be  included  in  computing  his 


872 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1569. 


retired  pay  under  the  act  of  March  2,  1907. 
(Comp.  Dec,  Apr.  14,  1914,  158  S.  and  A. 
Memo.,  3038.  Compare,  25  Comp.  Dec,  424, 
noted  above,  under  "Mess  attendants  and 
cooks.") 

An  enlisted  man  of  the  Na^'v  retired  subse- 
quent to  the  act  of  March  2,  1907(34  Stat.,  1217), 
and  thereafter  naturalized,  is  not  entitled  to  be 
credited  to  three-fourths  of  the  pay  authorized 
by  Executive  order  of  November  27,  1906,  in 
the  computation  of  his  retired  pay.  (20  Comp. 
Dec,  606;  but  see,  contra,  Comp.  Dec.,  Nov.  16, 
1920.  case  of  James  Quinn,  G.  M.  Ic,  A.  D.  No. 
5207,  Navy  Dept.  file  26252-146  :  2.\ 

A  retired  enlisted  man  called  into  active 
8er\ice  under  the  act  of  August  29,  1916  (39 
Stat.,  591),  and  issued  a  new  permanent  ap- 
pointment as  chief  petty  officer,  is  not  entitled 
to  the  present  pay  and  aUowances  of  the  rate 
to  which  appointed.     (24  Comp.  Dec,  79.) 

A  retired  enlisted  man  called  into  active 
ser\'ice  pursuant  to  the  pro^dsion  in  the  act  of 
August  29,  1916  (39  Stat.,  591)— that  while  so 
employed  on  active  duty  such  retired  enlisted 
men  shall  receive ' '  the  same  pay  and  allowances 
they  were  recei\'ing  when  placed  on  the  retired 
list" — is  entitled  to  the  present  pay  of  men  on 
the  active  list  of  the  same  rating  and  of  the 
same  length  of  ser^dce;  and  is  not  limited  to  the 
identical  pay  he  received  pre\'ious  to  his  retire- 
ment and  regardless  of  subsequent  legislation. 
Where  such  retired  enlisted  man  was  employed 
in  active  service  on  June  1, 1917,  he  was  entitled 
to  the  increased  pav  pro\'ided  for  enlisted  men 
by  the  act  of  May  22,  1917  (40  Stat.,  87),  which 
went  into  effect  on  June  1,  1917,  with  reference 
to  all  enlisted  men  in  active  service  on  the  last- 
named  date.     (24  Comp.  Dec,  79.) 

The  act  of  May  22,  1917  (40  Stat.,  87),  pro- 
\-iding  for  increased  pay,  commencing  June  1, 
1917,  for  enlisted  men  of  the  Navy  in  active 
8er^'ice  during  the  present  war,  is  not  applicable 
to  enlisted  men  retired  since  June  1,  1917.  (24 
Comp.  Dec,  116.) 

The  rule  is  well  understood  that  if  the  pay  of 
the  rank  or  grade  on  the  active  list  is  changed, 
it  effects  a  change  in  the  pay  of  enlisted  men 
on  the  retired  list  holding  that  rank  or  grade. 
But  this  does  not  apply  to  exceptional  pay  or 
increase  of  pav  for  special  service.  (24  Comp. 
Dec,  116.) 

The  retired  pay  of  enlisted  men  should  be 
computed  upon  their  regular  ordinary  pay,  and 
not  include  additional  pay  allowed  for  excep- 
tional duty  or  special  services.  (Comp.  Dec, 
Apr.  14,  1914,  158  S.  and  A.  Memo.,  3038.) 

Additional  pay  allowed  coxswains  by  General 
Order  No.  20  of  January  1,  1901,  should  not  be 
included  in  computing  retired  pay.  (Comp. 
Dec,  May  27,  1914,  1.59  S.  and  A.  Memo.,  3073.) 

By  act  of  July  1,  1918  (40  Stat.,  719),  it  was 
provided  that  retired  enlisted  men  recalled 
into  active  service  shall  be  eligible  for  promo- 
tion and  "shall  be  entitled  to  the  pay  and 
benefits  of  continuous  service  of  such  rank  and 
for  such  length  of  time  as  he  is  or  has  been 
employed  in  active  ser\ice,  and  when  relieved 
of  active  service  shall  retain  upon  the  re- 
tired list  the  rank  and  service  held  by  him  at 
the  time  of  such  relief,  %rith  the  pay  and  allow- 
ances of  such  rank  on  the  retired  list."  Held, 
that,  broadly  speaking,  "continuous-service'' 


pay  includes  any  pay  or  gratuity  which  is 
taased  upon  the  element  of  continuity  in  the 
service  of  enlisted  men;  so  defined,  continuous- 
service  pay  includes  the  so-called  honorable- 
discharge  gratuity,  since  the  payment  of  such 
gratuity  is  dependent  on  continuity  of  service; 
it  also  includes  additional  pay  allowed  under 
General  Order  No.  34  of  1906,  as  well  as  con- 
tinuous-service pav  proper  allowed  by  act  of 
August  22,  1912  (noted  under  sec.  1573,  R.  S.). 
Fiu-ther  held,  that  the  provision  in  the  act  of 
July  1,  1918,  provides  in  effect  for  a  constructive 
reenlistment  when  the  enlisted  man  has  served 
the  iinexpired  portion  of  the  enlistment  in 
which  he  was  serving  when  retired.  Accord- 
ingly, retired  enlisted  men  of  the  Navy  who  are 
recalled  to  active  service  and  who  complete  a 
period  of  service  equal  to  the  unexpired  term 
of  their  enlistment  are  entitled,  when  otherwise 
qualified,  to  continuous-service  pay  proper, 
honorable-discharge  gratuity,  and  pay  under 
General  Order  No.  34  of  1906,  whether  the  con- 
structive reenlistment  be  considered  as  operat- 
ing for  a  term  of  four-  years  or  for  the  duration 
of  the  existing  war.  (25  Comp.  Dec,  440. 
Compare,  26  Comp.  Dec,  565,  noted  above, 
under  "Longevity  pay,  General  Order  No.  34.") 

Retired  enlisted  men  of  the  Navy  who  are 
recalled  to  active  duty  and  who,  upon  release 
therefrom,  are  orderecl  to  their  homes,  are  not 
entitled  to  travel  pay  under  the  act  of  February 
28,  1919  (40  Stat.,  1203),  but  only  to  transporta- 
tion in  kind  from  their  homes  to  the  place  to 
which  called  for  active  duty  and  from  such 
place  to  their  homes,  when  released  from  such 
duty.     (26  Comp.  Dec,  21.) 

Retired  enlisted  men  of  the  Navy  called  to 
active  duty  under  the  act  of  July  i,  1918  (40 
Stat.,  719),  and  reheved  therefrom  on  or  subse- 
quent to  July  11,  1919,  are  entitled  to  credit 
for  the  increase  of  pay  authorized  by  the  act 
of  July  11,  1919  (41  Stat.,  140),  in  computing 
their  pay  on  the  retired  Hst.  (26  Comp.  Dec, 
478.) 

Enlisted  men  of  the  Navy  who  were  not  on 
active  duty  during  the  period  from  July  11, 
1919,  to  June  30, 1920,  inclusive,  are  not  entitled 
to  credit  for  the  war  increase  of  pay  authorized 
by  the  act  of  July  11,  1919  (41  Stat.,  140),  in 
computing  their  pay  on  the  retired  list.  (27 
Comp.  Dec,  481.) 

18.  Men  detained  after  expiration  of 
enlistment. — See  notes  to  sections  1418,  1422, 
and  1426,  Revised  Statutes. 

An  enlisted  man  in  the  Navy  who  was  ap- 
pointed as  mate  and  continued  to  seiwe  as  such 
after  the  expiration  of  his  term  of  enlistment, 
without  receiving  a  discharge,  is  still  in  the 
service  and  entitled  to  his  discharge,  and  may 
be  permitted  to  reenlist  with  the  benefit  of  con- 
tinuous service  under  article  839  of  the  Navy 
Regulations  of  1905.     (26  Op.  Atty.  Gen.,  319.) 

The  period  of  detention  beyond  the  expira- 
tion of  the  term  of  service  of  an  enlisted  man 
of  the  Navy  undergoing  treatment  in  a  hospital 
is  to  be  considered  as  for  the  convenience  of  the 
Government,  and  the  man  is  entitled  to  pay 
to  and  including  the  date  of  his  actual  discharge. 
(26  Comp.  Dec,  447,  modifying  26  Comp.  Dec, 
128.) 

An  enlisted  man  remains  in  the  service  until 
receipt  of  his  discharge,  or  until  such  action  is 


873 


Sec.  1569. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


taken  as  \\\\\  render  him  legally  chargeable 
with  notice  thereof,  notwithstanding  the  expi- 
ration of  his  term  of  enlistment  during  his  ab- 
Bence  on  a  furlough  granted  at  his  own  request. 
(2  Comp.  Dec,  94;  27  Comp.  Dee.,  784.) 

The  right  of  a  soldier  to  jjay  for  service  after 
the  expiration  of  his  term  of  enlistment  is  not 
expressly  provided  for  by  any  statutory  pro- 
vision. The  Government  has  no  authority  to 
hold  a  soldier  to  service  after  the  expiration  of 
his  term  of  enlistment,  except  that  arising  from 
an  exigency  of  the  serv-ice  or  the  delay  incident 
to  the  muster  out  of  troops;  at  least  in  the  latter 
case  the  soldier  is  entitled  to  pay  during  the 
period  of  detention,  as  an  incident  to  his  term 
of  enlistment,  and  at  the  rate  to  which  he  was 
entitled  at  the  expiration  thereof.  7  Comp. 
Dec,  391.) 

A  deserter  from  the  Navy,  upon  his  return  to 
duty  and  assigimient  to  a  hospital  for  treatment, 
is  entitled  to  pay  computed  upon  the  base  pay 
prescribed  by  act  of  ]\lay  18,  1920  (41  Stat., 
602),  from  the  date  of  his  return,  if  after  January 
1,  1920,  to  date  his  enlistment  was  due  to 
expire,  and  at  the  same  rate  thereafter,  to  and 
including  the  date  of  his  actual  discharge.  (27 
Comp.  Dec,  541). 

Where  an  enlisted  man  of  the  Marine  Corps 
who  deserted  therefrom  in  time  of  peace,  and 
subsecjuently  returned  to  his  organization, 
after  the  expiration  of  his  enlistment  but  within 
two  years  from  the  latter  date,  and  was  restored 
to  duty  without  trial,  his  organization  then  be- 
ing in  France  operating  under  the  Army  and 
subject  to  Army  regulations,  held,  that  such 
restoration  to  and  acceptance  of  duty  is  a  con- 
Btructive  reenlistment  or  extension  of  enlist- 
ment, and  credit  for  pay  should  be  allowed 
from  the  date  of  return  to  military  control.  (25 
Comp.  Dec,  881.) 

A  con\icted  deserter,  restored  to  duty  on 
probation  after  expiration  of  his  enlistment  in 
the  Na\'y,  is  entitled  to  pay  for  services  ren- 
dered while  on  probation.  (Comp.  Dec,  Nov. 
20,  1908,  93  S.  and  A.  Memo.,  896.) 

An  enlisted  man  remaining  in  the  service 
xmder  an  illegal  extension  of  enlistment  is  en- 
titled to  pay  under  his  original  enlistment, 
notwithstanding  that  it  had  previously  expired. 
(Comp.  Dec,  June  6, 1914,  160  S.  and  A.  Memo., 
3255.) 

An  enlisted  man  of  the  United  States  Navy 
captured  and  separated  from  his  vessel  in  con- 
sequence of  an  attack  by  a  British  vessel  in 
1807,  and  held  by  the  British  for  a  period  of 
five  years,  when  he  was  released  and  returned 
to  his  vessel,  held,  entitled  to  be  paid  his  wages 
by  the  United  States  for  the  total  period  of  five 
years,  although  the  enlistment  in  which  he  was 
serving  at  the  time  of  his  captm-e  was  for  a 
period  of  only  one  year.  (Straughan  v.  U.  S., 
1  Ct.  Cls.,  324.) 

An  enlisted  man  of  the  Navy  whose  enlist- 
ment expires  while  he  is  in  confinement  serving 
sentence  of  a  naval  court-martial  is  not  enti- 
tled to  be  credited  with  pay  after  the  expira- 
tion of  his  enlistment;  he  is  thereafter  held  in 
obedience  to  the  sentence  of  the  court-martial, 
but  such  imprisonment  can  not  be  regarded  as 
holding  him  in  the  naval  service  within  the 
meaning  of  any  law  entitling  him  to  receive 
pay  for  such  services,  notv\ithstanding  that  his 


discharge  is  not  delivered  to  him  until  exjnra- 
tion  of  his  term  of  imprisonment.  (9  Comp. 
Dec,  256.) 

19.  Fraudulent  enlistment. — See  notes  to 
sections  1419  and  1420,    Re\ised  Statutes. 

It  is  well  established  that  an  enlisted  man 
whose  enlistment  is  procured  by  fraud,  unless 
the  Government  waives  the  objection  and 
allows  the  enlistment  to  stand,  is  not  entitled 
to  any  arrearages  of  pay  or  allowances.  (14 
Comp.  Dec,  267,  citing  12  Comp.  Dec,  326,  328.) 

Whether  a  man  securing  his  enlistment  by 
fraud  shall  be  discharged  for  that  reason  or  re- 
tained in  the  service  rests  in  the  sound  discre- 
tion of  the  executive  officer,  regardless  of  his 
indebtedness  to  the  Government.  A  paymas- 
ter should,  for  his  own  protection,  upon  the 
discovery  of  fraud  in  an  enlistment,  suspend 
payments  until  it  is  knowoi  from  the  proper 
authority  whether  the  enlistment  shall  be 
terminated  and  the  man  discharged  on  account 
of  the  fraud,  or  whether  he  shall,  notwithstand- 
ing, be  retained  in  the  service.  If  he  is  to  be 
discharged  for  the  fraud,  no  further  payments 
should  be  made;  if  he  is  to  be  retained  in  the 
service,  credit  should  be  given  him  and  pay- 
ments made  as  though  no  fraud  had  occurred 
in  his  enlistment.     (14  Comp.  Dec,  267.) 

Pay  and  allowances  of  deserter  who  fraudu- 
lently reenlists:  See  note  to  section  1420, 
Revised  Statutes. 

Pav'ment  of  death  gratuity  in  case  of  deserter 
who  fraudulently  enlists  and  dies  v\ithout  dis- 
covery of  the  fraud:  See  note  to  section  1420, 
Revised  Statutes. 

WTiere  an  enlisted  man  convicted  of  fraudu- 
lent enlistment  and  sentenced  to  imprisonment 
and  dishonorable  discharge  is  restored  to  duty 
on  probation  by  order  of  the  Secretaiy  of  the 
Navy,  execution  of  the  sentence  being  sus- 
pended dming  the  probationary  period  v\ith  a 
view  to  its  ultimate  remission  should  his  con- 
duct warrant,  held,  that  such  man  is  entitled  to 
pay  wiiile  serving  on  probation,  the  same  as  if 
said  sentence  did  not  exist;  but  he  is  not  en- 
titled to  be  paid  any  balance  due  liim  at  the 
time  of  the  sentence  unless  and  until  the 
sentence  be  unconditionally  remitted  after  the 
probationary  period.     (13  Comp.  Dec,  723.) 

20.  Mileage  and  transportation  on  dis- 
charge.— See  note  to  section  1422,  Revised 
Statutes;  notes  above,  under  ''Retired  enlisted 
men,"  "Men  furloughed  without  pay,"  "Men 
extending  enlistments,"  and  "Men  transferred 
to  Fleet  Naval  Reserve";  note  below,  under 
"Waiver  of  pay  or  allowances  " ;  note  to  section 
1556,  Revised  Statutes,  under  "Naval  Reserve 
Force,"  and  act  of  March  3,  1901  (31  Stat., 
1030);  see  also  act  of  June  3,  1916,  section  126 
(39  Stat.,  217),  as  amended  and  reenacted  by 
act  of  February  28,  1919,  section  3  (40  Stat., 
1203),  which  is  the  general  law  providing  for 
travel  allowance  on  discharge. 

WTiere,  by  inadvertence,  an  enlisted  man  of 
the  Navy,  on  his  application  therefor,  was  not 
furnished  transportation  to  his  home  on  dis- 
charge on  medical  survey,  for  which  provision 
was  made  by  the  appropriation  act  of  March  3, 
1901  (31  Stat.,  1030),  and  he  paid  his  own  fare, 
he  is  entitled  to  reimbursement  therefor  not  to 
exceed  the  cost  to  the  general  public.  (8 
Comp.  Dec,  377.) 


874 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1660. 


An  enlisted  man  of  the  Navy  whose  home  is 
in  Porto  Rico  is  a  resident  of  the  United  States, 
mthin  the  meanins;  of  the  pro\T.sion  in  the  act  of 
March  3,  1903  (32  Stat.,  1178),  for  the  transpor- 
tation to  their  homes  of  enlisted  men  of  the 
Navy  on  discharge  from  the  ser\-ice.  (11  Comp. 
Dec,  336.) 

An  enlisted  man  of  the  Na\'y  who  reenlisted 
upon  his  discharge  on  account  of  expiration  of 
enlistment,  and  did  not  perform  actual  travel 
between  the  place  of  his  discharge  and  the 
place  of  his  enlistment,  is  entitled  imder  the 
act  of  June  29,  1906  (34  Stat.,  555),  to  travel 
allowance  at  the  rate  of  four  cents  per  mile  for 
travel  in  the  United  States  between  said  points. 
(13  Comp.  Dec,  50.) 

An  enlisted  man  who  reenlisted  immediately 
on  the  expiration  of  a  prior  enlistment  does  not 
become  entitled,  under  the  act  of  June  29,  1906 
(34  Stat.,  555),  on  his  discharge  from  such  re- 
enlistment,  to  travel  allowance  to  the  place  of 
liis  preceding  enlistment.  (13  Comp.  Dec, 
526.) 

The  travel  allowance  for  travel  in  the  United 
States  to  which  enlisted  men  of  the  Navy  are 
entitled  under  the_  act  of  June  29,  1906  (34 
Stat.,  555),  when  discharged  at  a  foreign  port, 
should  be  computed  from  the  nearest  regular 
port  of  arrival  in  the  continental  limits  of  the 
United  States  to  the  place  of  enlistment.  (13 
Comp.  Dec,  689.) 

The  act  of  March  3,  1909  (35  Stat.,  755),  gives 
the  right  to  enlisted  men  of  the  Navy,  when 
discharged  on  medical  surv^ey,  to  transporta- 
tion to  their  homes  at  Government  expense; 
but  such  right  must  be  availed  of  at  the  time  of 
discharge  or  Avithin  a  reasonable  time  there- 
after.    (16  Comp.  Dec,  555.) 

The  place  of  discharge  from  which  travel 
allowance  of  an  enlisted  man  is  computed  under 
the  act  of  June  29,  1906  (34  Stat.,  555),  is  the 
place  at  which  the  discharge  was  delivered  and 
received  by  him,  pro\dded  he  is  on  duty  at  that 
place,  and  not  necessarily  the  place  of  its  issu- 
ance.    (19  Comp.  Dec,  565.) 

Travel  from  Alaska  to  the  State  of  Washing- 
ton is  "travel  in  the  United  States,"  Avithin 
the  meaning  of  the  authorization  for  the  pay- 
ment of  a  travel  allowance,  under  the  act  of 
June  29,  1906  (34  Stat.,  555).  (22  Comp.  Dec, 
183.) 

Where  a  man  presented  himself  at  a  certain 
place  for  enlistment,  and  there  took  the  in- 
itial steps  toward  entering  the  ser\dce,  he  is 
to  be  regarded,  with  reference  to  travel  al- 
lowance on  discharge,  as  haAT.ng  been  enlisted 
at  that  place,  although  for  the  convenience 
of  the  Goveriunent  he  was  transported  to 
another  place  before  executing  the  formal 
contract  of  enlistment  and  taking  the  oath 
of  allegiance.    (23   Comp.    Dec,    248.) 

The  statement  or  affidavit  of  an  enlisted 
man  as  to  his  actual  bona  fide  home  or  res- 
idence would  not  be  sufficient  evidence  in 
all  cases  upon  which  to  decide  the  question 
of  the  amount  of  travel  pay  to  which  he  is 
entitled  under  the  act  of  February  28,  1919 
(40  Stat.,  1203).  No  general  rule  may  be  laid 
down  for  the  determination  of  the  place  to 
which  travel  pay  should  be  allowed,  but  each 
case  should  be  decided  upon  its  merits.  (25 
Comp.  Dec,  792.) 


Whether  or  not  an  enlisted  man  intends  to 
make  the  travel  to  the  place  declared  to  be 
his  "actual  bona  fide  home  or  residence," 
to  which  he  is  paid  travel  pay  on  discharge, 
as  provided  by  the  act  of  February  28,  1919 
(40  Stat.,  1203),  is  immaterial,  so  far  as  pay- 
ment   is    concerned.     (25  Comp.  Dec,  792.) 

Enlisted  men  who  nave  been  honorably 
discharged  since  November  11,  1918,  should 
be  paid  by  disbursing  officers  as  provided  in 
the  act  of  February  28,  1919  (40  Stat.,  1203), 
travel  pay  at  5  cents  per  mile  fi'om  the  place 
of  discharge  to  the  place  of  original  muster 
into  the  service,  and  if  the  place  claimed  as 
actual  bona  fide  home  or  residence  be  at  a 
greater  distance  the  enlisted  man  may  present 
his  claim  for  the  difference  between  that 
amount  and  the  amount  paid  to  the  proper 
auditor,  by  whom  the  eNddence  as  to  his  home 
or  residence  may  be  considered  and  the  amount 
found  due  mav  be  certified  for  pajonent. 
(25  Comp.   Dec!,  792.) 

Under  the  act  of  Februaiy  28,  1919  (40  Stat., 
1203),  an  enlisted  man  whose  bona  fide  home 
or  residence  is  in  the  interior  of  a  foreign 
country  is  entitled,  in  addition  to  the  allow- 
ance for  necessary  travel  in  the  United  States, 
to  be  furnished  transportation  and  subsistence 
for  the  sea  travel  involved,  and  5  cents  per 
mile  from  the  nearest  port  in  the  foreign  coun- 
try to  his  home  or  residence  therein.  (25 
Comp.  Dec,  950.) 

Where  enlisted  men  are  discharged  under 
an  agreement  to  reenlist  they  are  not  entitled 
to  travel  allowance  at  the  rate  of  5  cents  per 
mile  provided  by  the  act  of  Februaiy  28,  1919 
(40   Stat.,    1203).     (26   Comp.    Dec,    21.) 

Any  enlisted  man  discharged  from  any 
branch  of  the  naval  service  for  the  purpose  of 
reenlisting  in  the  Navy  or  Marine  Corps,  or 
who  shall  extend  his  enlistment  therein,  shall 
be  entitled  to  travel  pay  as  authorized  by  act 
of  Februarv  28,  1919"  (40  Stat.,  1203).  (Act 
June  4,  1920,  sec  6,  41  Stat.,  836.) 

The  act  of  June  4,  1920,  section  6  (41  Stat., 
836),  applies  only  to  men  who  were  in  the 
ser\dce  on  November  11,  1918.  (27  Comp. 
Dec,   305;   27   Comp.   Dec,    32.) 

The  words  "honorably  discharged"  which 
are  used  in  the  act  of  February  28,  1919  (40 
Stat.,  1203),  as  a  condition  precedent  to  the 
allowance  of  mileage  to  enlisted  men  of  the 
Navy,  are  not  used  in  the  technical  sense 
which  they  have  acquired  in  the  NaAy,  but 
are  used  in  the  same  broad  sense  with  ref- 
erence to  the  Navy  that  they  have  with  ref- 
erence to  the  Army,  thus  including  all  dis- 
charges under  which  the  holder  may  be  re- 
garded by  the  War  and  Na\y  Departments 
and  military  men  of  the  branch  in  question 
as  leaAdng  the  service  in  an  honorable  manner. 
(File  9209-114,  Mar.  11,  1919;  C.  M.  O.  114, 
1919,  p.  18;  file  9209-114:45,  Feb.   10,   1920.) 

An  enlisted  man  who  is  not  dishonorably 
discharged  or  discharged  without  honor,  _  but 
who  is  discharged  under  honorable  conditions, 
although  the  word  "honorably"  is  omitted 
fi-om  the  discharge  paper  may  be  considered  to 
be  honorably  discharged  within  the  meaning 
of  the  act  of  February  28,  1919.  pro\-iding  for 
travel  pav.  (25  Comp.  Dec,  792;  see  also  25 
Comp.  Dec,   771,  and  25  Comp.  Dec,  930.) 


54641°— 22- 


-56 


875 


Sec.  1569. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


The  act  of  February  28,  1919  (40  Stat.,  1203), 
provides  for  furnishing  an  enlisted  man,  honor- 
ably discharged  from  the  Army,  Navy,  or 
Marine  Corps,  with  mileage  at  the  rate  of  5 
cents  per  mile  from  the  place  of  his  discharge 
to  his  "actual  bona  fide  home  or  residence, 
or  original  muster  into  the  service,  at  his 
option/'  and  makes  similar  provision  for 
furnishing  mileage  to  reservists  "honorably 
released  from  active  service."  Held,  that 
the  word  "home"  and  "residence"  are  not 
used  s^-nonjTnously  in  this  statute;  that  the 
man's  actual  bona  fide  home  ^vithin  the  mean- 
ing of  the  statute  is  what  is  commonly  known 
as  his  legal  residence  or  domicile,  and  may  be 
different  from  his  actual  resident,  to  which  he 
may  at  his  option  claim  mileage;  that  at  the 
time  of  his  enlistment  in  the  Navy,  a  man 
may  have  been  engaged  in  business  and  ac- 
tually resided  at  a  place  other  than  his  home, 
domicile,  or  legal  residence.  In  such  case, 
under  the  statute,  he  may.  at  his  option, 
claim  mileage  to  the  place  of  his  actual  res- 
idence or  former  emplojinent,  or  to  his  home 
or  legal  residence.  However,  to  constitute 
his  home  or  legal  residence  at  a  place  different 
from  that  where  he  actually  resided  at  the 
time  of  enlistment,  it  must  appear  that  the 
man  did  actually  reside  at  some  time  at  the 
place  to  which  he  claims  mileage,  and  if  he 
did  not  actually  reside  at  such  place  at  the 
time  of  his  enlistment,  it  must  have  been  his 
bona  fide  home  at  some  time  in  the  past  and 
he  must  have  retained  ever  since  the  intention 
of  returning  thereto  for  the  purpose  of  making 
same  his  permanent  abode.  (Kle  9209-114:4, 
Apr.  5,  1919;  C.  M.  O.  186,  1919,  p.  40.) 

A  man  whose  bona  fide  home  waa  in  Bates- 
burg,  S.  C,  was  employed  at  Winston-Salem, 
N.  C.,  and  enrolled  in  the  Naval  Eeserve 
Force  at  Columbia,  S.  C.  He  was  honorably 
released  from  active  duty  at  Charleston,  S.  C. 
Held,  that  there  are  three  places  to  which  the 
man  in  this  case  is  entitled,  at  his  option  to 
claim  mileage,  \dz.,  first,  his  actual  bona  fide 
home,  which  is  stated  to  be  Batesburg,  S.  C; 
second,  his  actual,  bona  fide  residence  at  the 
time  of  enrollment,  which  appears  upon  the 
facts  stated  to  have  been  Winston-Salem,  N.  C. ; 
and  third,  his  place  of  "original  muster  into  the 
ser^dce,  "  being  in  this  case  place  of  enrollment 
which  is  stated  to  be  Charleston,  S.  C.  (File 
9209-114:4,  Apr.  5,  1919;  C.  M.  0.  186,  1919, 
p.  40.) 

The  words  of  the  statute,  allowing  mileage  to 
be  claimed  to  place  of  "original  muster  into  the 
service, "  refer  to  the  place  shown  by  the  rec- 
ords as  the  man's  place  of  enlistment  or  enroll- 
ment under  his  current  contract.  (File  9209- 
114:4,  Apr.  5,  1919;  CM.  O.  186,  1919,  p.  40.) 

The  act  of  February  28,  1919  (40  Stat.,  1203). 
is  permanent  legislation,  superseding  prior 
laws  for  payment  of  travel  allowances  on  dis- 
charge from  the  Army  and  Navy.  (File  9209- 
114,  Mar.  11,  1919;  C.  M.  O.  114,  1919,  p.  18; 
file  9209-114:45,  Feb.  10,  1920.) 

TheactofJuly  11, 1919 (41  Stat.,  139),  author- 
izing the  issuance  of  honorable  discharges  and 
the  payment  of  mileage  in  certain  cases  of  en- 
listed men  who  have  served  in  the  war  with 
the  German  Government,  did  not  repeal  the 
prior  permanent  law  of  February  28,  1919  (40 


Stat.,  1203),  or  restrict  the  scope  of  said  prior 
law.     (File  9209-114:4-5,  Feb.  10,  1920.) 

Travel  allowance  on  discharge  should  be 
paid  to  enlisted  men  of  the  Navy,  under  the 
act  of  February  28,  1919  (40  Stat.,  1203),  irre- 
spective of  their  indebtedness  to  the  Govern- 
ment at  the  time  of  discharge.  (File  9209- 
114:5,  Apr.  11,  1919,  citing  18  Comp.  Dec,  621 
and  8  Comp.  Dec,  624.) 

21.  Clothing  bounty  on  enlistment.— 
By  act  of  March  1,  1889  (25  Stat.,  781),  it  was 
pro\-ided  that  "in  order  to  encourage  the  en- 
listment of  boys  as  apprenctices  in  the  United 
States  Navy,  the  Secretary  of  the  Navy  is 
hereby  authorized  to  furnish  as  a  bounty  to 
each  of  said  apprentices  after  his  enlistment, 
and  wHQn  first  received  on  board  of  a  training 
ship,  an  outfit  of  clothing  not  to  exceed  in  value 
the  sum  of  $45.  "  The  language  of  this  statute, 
both  as  to  the  classes  of  persons  included  and 
the  value  of  the  clothing  outfit,  was  broadened 
from  time  to  time  by  subsequent  appropria- 
tions for  the  naval  ser\-ice,  until  proA-ision  is 
now  annually  made  for  furnishing  "outfits  for 
all  enlisted  men  and  apprentice  seamen  of  the 
Na\'y  on  first  enlistment,  at  not  to  exceed  §100 
each."  (See,  e.  g.,  acts  of  July  11,  1919,  41 
Stat.,  135,  and  June  4,  1920,  41  Stat.,  815.) 

By  act  of  March  3,  1915  (38  Stat.,  932),  it  was 
pro\ide(i  ' '  that  hereafter  the  Secretary  of  the 
Na\'y  is  authorized  to  issue  a  clothing  outfit  to 
all  enlisted  men  serving  in  their  second  en- 
listment who  failed  to  receive  an  outfit  of  the 
value  authorized  by  law  on  their  first  enlist- 
ment, or  who,  ha^dng  received  such  outfit, 
were  required  to  refund  its  value  on  account  of 
discharge  prior  to  expiration  of  enlistment: 
Provided  further,  That  the  net  cost  to  the  Gov- 
ernment of  clothing  outfits  furnished  any  one 
enlisted  man  shall  not  exceed  S60.  " 

By  act  of  June  29,  1906  (34  Stat.,  556),  it  was 
pro\T-ded  "that  hereafter  the  Secretary  of  the 
NaAy  may,  in  his  discretion,  require  the  whole 
or  a  part  of  the  cost  of  outfits  allowed  upon  en- 
listment to  be  refunded  in  cases  where  men  are 
discharged  during  the  first  six  months  of  enlist- 
ment for  any  cause  other  than  disability  in- 
curred in  line  of  duty.  " 

By  act  of  March  2,  1907  (U  Stat.,  1176),  it  was 
pro%T.ded  ' '  that  the  Secretary  of  the  Na\'y  may, 
in  his  discretion,  require  the  whole  or  a  part  of 
the  bounty  allowed  upon  enlistment  to  be 
refunded  in  cases  where  men  are  discharged 
during  the  first  year  of  enlistment  by  request 
for  inaptitude,  as  undesirable,  or  for  disability 
not  incurred  in  line  of  duty.  " 

The  whole  purpose  of  the  act  of  March  1, 
1889  (25  Stat.,  781),  pro\-iding  clothing  bounty 
on  enlistment,  was  to  encourage  the  enlistment 
of  boys  as  apprentices  in  the  United  States 
Na\'y;  the  Secretary  of  the  Na\'y  has  no  discre- 
tion to  furnish  bounty  in  one  case  and  decline 
to  furnish  it  in  another.  (25  Op.  Atty.  Gen., 
270.) 

Regulations  of  the  Secretarj^  of  the  Na^-y, 
requiring  refund  of  the  clothing  bounty,  or  any 
portion  thereof,  in  case  an  apprentice  is  dis- 
charged ^\•ithin  a  year  after  his  enlistment  for 
disability  not  incurred  in  line  of  duty,  are 
inconsistent  with  law  and  void.  (25  Op.  Atty 
Gen.,  270.     Note:  This  opinion  was  rendered 


876 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1569. 


prior  to  the  statutory  enactments  of  1906  and 
1907,  above  quoted,  with  respect  to  refund  of 
clothing  outfit.) 

An  enlistment  in  the  Navy  for  temporary 
ser^dce  is  not  the  first  enlistment  within  the 
meaning  of  the  act  of  March  1,  1889  (25  Stat., 
781),  and  the  naval  appropriation  acts  pro\'id- 
ing  for  the  giving  of  outfits  of  clothing  as  a 
bounty  on  first  enlistment  of  all  enlisted  men 
and  apprentice  seamen  of  the  Navy.  (19 
Comp.  Dec,  587.) 

The  promulgation  of  a  Navy  regulation  to  the 
effect  that  checkages  of  cost  of  clothing  outfit 
furnished  to  any  enlisted  man  of  the  Navy  on 
first  enlistment  shall  be  made  against  his  ac- 
count if  discharged  within  the  first  six  months 
of  such  enlistment  does  not  preclude  the  Sec- 
retary of  the  Navy  from  the  exercise  of  the  dis- 
cretion conferred  on  him  by  the  act  of  June  29, 
1906  (34  Stat.,  556),  in  each  case  coming  within 
such  statute.     (19  Comj).  Dec,  741.) 

An  enlisted  man  who  is  given  a  bad-conduct 
discharge  and  subsequently  reenlists  is  not 
entitled  to  receive  a  clothing  outfit  as  of  a  first 
enlistment.  (20  Comp.  Dec,  856.  This  de- 
cision was  prior  to  the  act  of  Mar.  3,  1915,  above 
quoted,  authorizing  clothing  outfits  on  second 
enlistment  in  certain  cases.) 

For  other  cases,  see  notes  above,  under  ' '  Pay 
of  insular  force,"  and  "Men  furloughed  mth- 
out  pay." 

22.  Deposit  of  savings. — See  note  above, 
vmder  ''Men  extending  enlistments." 

The  act  of  February  9,  1889  (25  Stat.,  657), 
"to  provide  for  the  deposit  of  the  savings  of 
seamen  of  the  United  States  Navy, "  does  not 
extend  to  enlisted  men  of  the  Marine  Corps. 
(19  0p.  Atty.  Gen.,  616.) 

Pa\Tnasters  of  the  Navy  may  receive  from 
enlisted  men  or  petty  officers  for  deposit,  under 
the  act  of  February  9,  1889  (25  Stat.,  657),  ac- 
cmnulated  savings  of  any  amount,  pro-vided 
they  represent  the  earnings  of  such  a  person  as 
an  enlisted  man  or  petty  officer  in  the  United 
States  Navy,  notwithstanding  that  they  may 
include  accumulated  savings  from  previous 
terms  of  enlistment.     (21  Op.  Atty.  Gen.,  498.) 

The  act  of  February  9,  1889  (25  Stat.,  657), 
providing  for  deposits  of  savings  of  enlisted  men 
of  the  Navy  and  exempting  such  deposits  from 
liability  for  their  debts,  does  not  apply  to  debts 
due  the  Government,  and  such  debts  should  be 
set-off  against  said  deposits.  (16  Comp.  Dec, 
566.) 

When  it  appears  that  an  enlisted  man  of  the 
Navy  has  been  dishonorably  discharged  after 
serving  a  term  of  imprisonment  for  desertion, 
that  at  the  time  of  his  discharge  the  fact  that 
there  was  due  him  a  sum  deposited  was  inad- 
vertently overlooked,  and  that  upon  discharge 
he  was  fiu-nished,  under  authority  of  the  acts  of 
February  16,  1909  (35  Stat.,  622),  and  March  3, 
1909  (35  Stat.,  756),  a  cash  gratuity  and  trans- 
portation, the  amount  of  such  gi-atuity,  trans- 
portation, and  any  other  indebtedness  due  the 
Government  at  the  time  of  his  discharge 
should  be  set-off  against  the  sum  deposited  to 
his  credit.     (16  Comp.  Dec,  566.) 

Enlisted  men  of  the  Navy  temporarily  war- 
ranted or  commissioned  under  the  act  of  May 
22, 1917  (40  Stat.,  84),  being  thereby,  during  the 
continuance  of  such  appointment,  discharged 


from  service  as  enlisted  men  and  entitled  to 
receive  all  pay  and  allowances  due  them  as 
such,  may  legally  be  paid  the  moneys  which 
they  have  on  deposit  at  the  time  of  being  war- 
ranted or  commissioned.  (24  Comp.  Dec, 
179;  for  other  cases,  see  note  to  sec.  1409,  R.  S., 
under  "Deposit  accounts  of  mates  and  warrant 
officers,"  note  to  sec.  1417,  R.  S.,  under  "En- 
listed men  furloughed  mthout  pay,"  and  note 
above,  under  "Men  transferred  to  Fleet  Naval 
Reserve.") 

Members  of  the  Naval  Reserve  Force  when 
released  from  active  duty  should  be  repaid 
deposits  with  interest  thereon.  (Comp.  Dec, 
July  3,  1917,  197  S.  and  A.  Memo.,  4302.) 

23.  Waiver  of  pay  or  allowances. — See 
note  to  section  1422,  Revised  Statutes,  under 
"Transportation  may  be  waived,"  and  note  to 
same  section  under  "Additional  pay  can  not  be 
waived;"  and  see  cases  noted  under  section 
1556,  Re^^sed  Statutes,  under  "Waiver  of  pay." 

An  enlisted  man  of  the  Navy  who,  in  con- 
sideration of  his  being  allowed  to  remain  on  his 
vessel,  then  about  to  proceed  to  Asiatic  waters, 
gives  a  waiver  of  all  claim  to  transportation 
home  should  he  refuse  to  reenlist  and  be  dis- 
charged in  a  foreign  port,  can  not  maintain  an 
action  for  the  value  of  such  transportation. 
(Hunt  V.  U.  S.,  38  Ct.  Cls.,_  135.) 

Power  to  discharge  a  soldier  upon  the  latter's 
request  is  a  discretion  vested  in  the  President 
and  exercised  by  him  through  the  Secretary 
of  War.  It  is  essential  to  the  due  exercise  of 
this  discretion  that  he  have  power  to  exercise  it 
upon  conditions  prescribed  by  himself;  and 
this  power  the  judiciary  does  not  desire  to 
question  or  curtail.  Accordingly,  held,  that 
where  the  Secretary  of  War  authorized  the  dis- 
charge of  an  enlisted  man  who  had  unsuccess- 
fully instituted  proceedings  in  the  civil  courts 
to  have  his  enlistment  canceled,  and  as  a  condi- 
tion to  such  discharge  required  that  the  man 
make  good  all  indebtedness  due  by  him  to  the 
United  States;  and  the  man  accepted  the  terms 
of  the  release  offered,  paid  what  the  Govern- 
ment claimed  of  him,  and  left  the  service; 
there  was  an  implied  agreement  on  the  part  of 
the  soldier  that  he  would  assert  no  claim  for 
compensation  against  the  United  States;  he 
waived  some  supposed  rights  in  order  to  secure 
other  and  substantial  advantages  himself;  and 
he  was  not  entitled  thereafter  to  pay  or  allow^- 
ances  from  the  United  States  for  the  time  that 
his  litigation  was  pending  in  the  civil  courts 
and  he  rendered  no  service  to  the  Government. 
(Grimley  v.  U.  S.,  32  Ct.  Cls.,  285.) 

An  apprentice  of  the  Navy,  having  been 
transferred  from  one  vessel  to  another,  upon  his 
request  and  upon  his  waiver  of  his  right,  on 
discharge  in  a  foreign  port,  to  transportation  to 
the  United  States,  he  is  not  entitled  to  reim- 
bursement of  the  cost  of  such  transportation 
procured  by  himself.     (9  Comp.  Dec,  5.) 

24.  Sixty-dollar  bonus  on  discharge. — 
Under  the  act  of  February  24,  1919,  section 
1406  (40  Stat.,  1151),  authorizing  payment  of 
$60  to  men  discharged  under  honorable  condi- 
tions, and  who  served  in  the  military  or  naval 
forces  of  the  United  States  during  the  World 
War,  held,  that  the  separation  from  the  service 
of  enlisted  men  by  discharge  should  in  all  cases 
be  considered  as ' '  under  honorable  conditions,'' 


877 


Sec.  1571. 


I't.  J.  REVISED  STATUTES. 


The  Na^/y. 


except  when  the  certificate  or  order  of  discharge 
recites  facts  prechiding  the  presumption  of 
honoral)le  conditions.     (25  Comp.  Dec,   771.) 

I'ndcr  section  I4()(j  of  the  act  of  I'^ebruary  24, 
1919  (40  Stat.,  1151),  the  discharge  contem- 
plated is  one  which  effects  a  separation  from 
the  service,  and  not  a  discharge  given  in  the 
regular  course  of  procediu'e,  solely  for  the  pur- 
pose of  enal)ling  the  person  to  reenter  the  serv- 
ice in  another  branch  or  subdiiision  therefo. 
(25  Comp.  Dec.,  790.) 

The  aforesaid  bonus  can  not  be  paid  on  the 
date  an  enlistment  is  due  to  expire,  in  cases 
where  the  enlisted  man  has  agi'eed  to  extend 
his  enlistment  (25  Comp.  Dec,  986);  but  may 
be  paid  on  the  discharge  of  such  man  after  the 
expiration  of  such  extension.  (26  Comp. 
Dec,  138.) 

The  bonus  may  be  paid  to  enlisted  men  who 
voluntarily  reenlist  after  discharge,  but  not 
where  the  discharge  is  conditioned  upon  reen- 
listment.     (25  Comp.  Dec,  930.)    And  it  can 


not  be  paid  to  men  transferred  from  the  Na\'al 
Reserve  Force  to  the  Regular  Navy,  to  serve 
the  unexpired  term  of  their  enrollment,  pur- 
suant to  act  of  July  11,  1919  (41  Stat.,  139). 
(26  Comp.  Dec,  33.) 

Any  enlisted  man  discharged  from  any 
Ijranch  of  the  naval  service  for  the  purpose  of 
reenlisting  in  the  Navy  or  Marine  Corps,  or 
who  shall  extend  his  enlistment  therein,  shall 
be  entitled  to  the  payment  of  bonus  authorized 
by  act  of  February  24,  1919,  section  1406.  (Act 
June  4,  1920,  sec.  6,  41  Stat.,  836.) 

The  act  of  June  4,  1920,  section  6,  above 
quoted,  applies  only  to  persons  who  were  in  the 
service  on  November  11,  1918.  (27  Comp. 
Dec,  305;  27  Comp.  Dec,  32.) 

25.  Attachment  of  pay  by  creditors. — 
See  Buchanan  v.  Alexander  (4  How.,  19), 
noted  under  section  1430,  Revised  Statutes. 

26.  Allotments  of  pay. — See  sections  1430 
and  1576,  Revised  Statutes,  and  notes  thereto. 


Sec.  1570.  [Additional  pay  for  serving  as  firemen.]  Every  seaman,  lands- 
man, or  marine  who  performs  the  duty  of  a  fireman  on  board  any  vessel  of  war 
shall  be  entitled  to  receive,  in  addition  to  his  compensation  as  seaman,  lands- 
man, or  marine,  a  compensation  at  the  rate  of  33  cents  a  day  for  the  time  he 
is  employed  as  fu'eman. 

three  cents  a  day  for  the  time  he  is  employed 
as  fireman  or  coal-heaver." — (1  Mar.,  1869,  c. 
48,  s.  2,  V.  15,  p.  280.) 

Applicable  to  insular  force. — ^Members  of 
the  insular  force  are  entitled  to  the  extra  pay 
pro\'ided  by  section  1570,  Re\ised  Statutes, 
while  performing  the  duty  of  a  fireman  on  board 
a  vessel  of  war  of  the  United  States.  (Comp. 
Dec,  Aug.  13,  1910,  114  S.  and  A.  Memo.,  1546; 
see  note  to  sec.  1569,  R.  S.) 


This  section  -was  expressly  amended  and 
reenacted  to  read  as  above  by  act  of  March  29, 
1918  (40  Stat.,  499).  As  originally  enacted,  it 
read  as  follows: 

"Sec.  1570.  Every  seaman,  ordinary  seaman, 
or  landsman  who  performs  the  duty  of  a  fireman 
or  coal-heaver  on  board  of  any  vessel  of  war 
shall  be  entitled  to  receive,  in  addition  to  his 
compensation  as  seaman,  ordinary  seaman,  or 
landsman,  a  compensation  at  the  rate  of  thirty- 


Sec.  1571.  [Sea  service.]     No  service  shall  be  regarded  as  sea  service  except 

such  as  shall  be  performed  at  sea,  under  the  orders  of  a  Department  and  in 

vessels  employed  by  authority  of  law. —  (1  June,  1860,  c.  67,  s.  3,  v.  12,  p.  27.) 

Additional  pay  for  sea  duty:  See  act  of  May 
13,  1908  (35  Stat.,  128). 


Section  1571  not  repealed. — The  Navy 
personnel  act  of  March  3,  1899,  section  13  (30 
Stat.,  1007),  which  provided  that  officers  of  the 
Navy  shall  receive  the  same  pay  and  allow- 
ances as  officers  of  corresponding  rank  in  the 
Army,  did  not  repeal  or  modify  Revised  Stat- 
utes, section  1571,  defining  sea  service.  (Ryan 
v.  U.  S.,38Ct.  Cls.,  143.) 

There  is  nothing  in  the  Navy  personnel  act 
inconsistent  with  or  repealing  Revised  Stat- 
utes, section  1571.  (U.  S.  v.  Thomas,  195 
U.  S.,418.) 

Orders  of  Secretary  of  the  Navy  as  to 
what  constitutes  sea  service. — The  author- 
ity of  the  head  of  an  executive  department  to 
issue  orders  and  regulations  luider  the  direction 
of  the  President,  to  have  the  force  of  law,  is 
subject  to  the  condition  that  they  conflict  with 
no  act  of  Congress;  and  an  order  of  the  Secre- 
tary of  the  Navy  that  a  ser\'ice  shall  not  be  a 
sea  service  which  Congress  has  directed  shall 
be  a  sea  service  is  invalid.  (U.  S.  v.  Symonds, 
120  U.  S.,  46.) 


Congress  certainly  did  not  intend  to  confer 
authority  upon  the  Secretary  of  the  Navy  to 
diminish  an  officer's  compensation  as  estab- 
lished by  law,  by  declaring  that  to  be  shore 
service  which  was  in  fact  sea  service;  or  to 
increase  his  compensation  by  declaring  that  to 
be  sea  service  which  was  in  fact  shore  service. 
(U.  S.  V.  Symonds,  120  U.  S.,  46.) 

The  statute  does  not  confer  upon  the  Secre- 
tary of  the  Navy,  acting  alone  or  by  direction 
of  the  President,  the  power  to  declare  a  particu- 
lar service  to  be  shore  service  if  in  fact  it  was 
performed  by  the  officer  "when  at  sea,"  imder 
the  orders  of  the  Department,  and  on  a  vessel 
employed  with  authority  of  law.  (U.  S.  v. 
Symonds,  120  U.  S.,  46;  U.  S.  v.  Bishop,  120 
U.S.,  51.) 

Services  are  to  be  deemed  services  performed 
at  sea,  not  because  the  Secretary  of  the  Navy 
has  announced  that  the  Department  will  so 
regard  them,  but  because  they  are  in  fact 
services  performed  at  sea  and  not  on  shore. 
(U.  S.  V.  Symonds,  120  U.  S.,  46;  U.  S.  v. 
Bishop,  120U.  S.,  51.) 

The  Navy  Department  has  no  power  to  dis- 
regard the  provisions  of  Revised  Statutes,  sec- 
tions 1556  and  1571,  and  either  deprive  an 


878 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1571. 


officer  of  sea  pay  by  assigning  him  to  a  duty 
mistakenly  qualified  as  shore  duty  but  which 
is  in  law  sea  duty;  or  to  entitle  him  to  receive 
sea  pay  by  assigning  him  to  duty  which  is 
essentially  shore  duty  and  mistakenly  qualify- 
ing it  as  sea  duty.  (tl.  S.  v.  Engard,  196  U.  S., 
511.) 

The  Secretary  of  the  Navy  can  not  arbitra- 
rily change,  by  an  order,  the  character  of  the 
duty  to  be  performed  by  a  naval  officer;  but  the 
fact  that  he  designates  a  mixed  duty  as  shore 
duty  is  an  indication  of  the  construction  which 
he  places  upon  it.  (McGowan  v.  U.  S.,  36  Ct. 
Cls.,  63.) 

The  burden  of  proof  rests  on  an  officer  seeking 
sea  pay  to  disclose  the  character  of  the  ser\-ice 
rendered,  especially  where  the  order  assigning 
him  to  duty  designates  it  as  shore  duty.  (Cor- 
wine  V.  U.  S.,  24  Ct.  (Is.,  104.) 

When  a  naval  officer  on  sea  duty  was  assigned 
to  shore  duty,  a  modification  of  the  order,  after 
the  ser\ice  was  performed,  by  inserting  the 
words  "for  temporary  duty,"  and  the  certificate 
of  the  department  that  the  omission  of  the  word 
"temporary"  was  a  clerical  error,  does  not 
confer  a  legal  right  to  sea  pay  on  the  officer. 
The  Navy  Department  has  not  power  to  fix  the 
character  of  the  service  by  the  tenns  of  its 
order.  The  character  of  the  ser\ice  is  a  ques- 
tion of  fact.  (Doyle  v.  V.  S.,  46  Ct.  Cls.,  181, 
distinguishing  Mueller  v._  U.  S.,  41  Ct.  Cls.,  240, 
which  held  that  ratification  by  the  Secretaiy  of 
War  of  an  oral  order  was  valid.) 

Vessels  in  bays,  inlets,  or  other  arms  of 
the  sea. — The  sea  pay  given  to  officers  of  the 
Navy  by  Revised  Statutes,  1.556,  may  be 
earned  by  services  performed  under  orders  of 
the  Navy  Department  in  a  vessel  employed  by 
authority  of  law  in  active  ser^^.ce  in  bays, 
inlets,  roadsteads,  or  other  anns  of  the  sea, 
under  the  general  restrictions,  regulations,  and 
requirements  that  are  incident  or  peculiar  to 
service  on  the  high  seas.  (U.  S.  v.  Symonds, 
120  U.  S.,  46.) 

Under  the  third  section  of  the  act  of  June  1, 
1860  (now  sec.  1571,  R.  S.),  hdd,  that  the  words 
"at  sea"  are  not  to  be  construed  literally,  as 
requiring  that  the  vessel  must  be  actually  at 
sea;  but  that  they  may  properly  include  an 
officer  who,  upon  being  ordered  to  duty  at  sea, 
reports  himself,  in  obedience  to  his  orders,  at 
the  place  designated,  even  though  the  vessel 
be  Ijing  in  port  and  not  actually  out  at  sea. 
(10  Op.  Atty.  Gen.,  191.) 

Trips  made  down  the  river,  under  orders  for 
a  sea  voyage,  and  up  the  river  on  the  return  of 
a  vessel  from  sea,  are  sea  service.  (McRitchie 
V.  U.  S.,  23  Ct.  Cls.,  23.) 

A  naval  vessel  always  afloat  on  tide  water, 
frequently  ordered  to  sea,  at  all  times  ready  to 
obey  such  orders,  the  officers  and  crew  messing 
and  sleeping  on  board  and  maintaining  the 
regulations  and  discipline  of  a  man-of-war  at 
sea,  is  in  sea  service  mthin  the  intent  of  the 
Re\'ised  Statutes,  section  1556.  (McRitchie  v. 
U.  S.,  23  Ct.  Cls.,  23.) 

For  a  naval  vessel  to  come  within  the  phrase 
"at  sea,"  it  is  not  necessary  that  she  be  upon 
the  high  seas;  it  is  enough  if  she  be  water  borne, 
even  at  anchor,  or  tied  to  a  dock.  (Wyckoff  v. 
V.  S.,  34  Ct.  Cls.,  288.) 


Ser\dce  performed  on  board  a  vessel  of  the 
United  States,  by  order  of  the  Secretary  of  the 
Navy,  in  which  the  officer  is  obliged  to  occupy 
a  room,  pay  mess  bills,  etc.,  as  if  actually  at 
sea,  entitles  him  to  sea  pay.  (Hannum  t.U.S., 
36  Ct.  Cls.,  99.) 

The  fact  that  an  officer  assigned  to  duty  is  to 
take  charge  of  the  machinery  of  another  vessel, 
and  that  the  vessels  were  at  a  navy  yard,  does 
not  render  the  ser\'ice  shore  duty.  ('Hannimi  v. 
U.  S.,  36  Ct.  Cls.,  99.) 

Training  ship  at  anchor  and  not  in  com- 
mission. — It  is  of  no  consequence  that  a 
naval  vessel  was,  during  the  period  for  which 
sea  pay  is  claimed,  in  such  condition  that  she 
could  not  be  safely  taken  out  to  sea  beyond  the 
mainland.  She  was  a  training  ship,  anchored 
in  Narragansett  Bay,  during  the  whole  time 
covered  by  the  claim,  and  was  subject  to  such 
regulations  as  would  have  been  enforced  had 
she  been  put  in  order  and  used  for  purposes  of 
cruising  or  as  a  practice  ship  at  sea.  Within 
the  meaning  of  the  law  an  officer  performing  his 
duties  as  executive  officer  of  the  vessel  was 
"at  sea' ';  not\vithstanding  that,  by  order  of  the 
Secretary  of  the  Naw,  it  was  announced  that 
said  vessel  "will  not  be  considered  in  commis- 
sion for  sea  service."  (U.  S.  v,  Symonds,  120 
U.  S.,46.) 

Receiving  ship  at  anchor  and  not  in 
commission. — Service,  under  an  order  of  the 
Secretary  of  the  Navy,  by  an  officer  of  the 
Navy  as  executive  officer  of  a  receiving  ship, 
at  anchor  in  port  at  a  navy  yard  and  not  in 
commission  for  sea  service,  entitles  him  to  re- 
ceive pay  for  sea  service.  The  facts  in  this 
case  disclose  that  the  vessel  has  been  stationed 
and  anchored  at  the  same  navy  yard  and  in  the 
same  place  for  over  12  years;  that  it  has  been 
used  as  a  naval  recruiting  station ;  that  there  is 
a  roof  built  over  the  deck;  that  the  ship  is  con- 
nected and  communicates  -nith  shore  by  a  rope; 
that  steam  is  used  only  for  heating  purposes 
and  pumps;  that  all  the  anchors  have  never 
been  taken  up  at  the  same  time;  that  she  was 
not  in  a  safe  condition  for  cruising;  that  the 
duties  performed  by  the  executive  officer  of  the 
vessel  were  similar  to  those  of  executive  officers 
on  cruising  ships.  (U.  S.  v.  Strong,  125  U.  S., 
656.) 

Receiving  ship  condemned  and  stricken 
from  Navy  Register. — An  officer  is  entitled 
to  sea  pay  when  ordered  to  duty  on  board  a 
vessel  used  as  a  receiving  ship,  notwithstanding 
that  such  vessel  has  been  condemned  by  a 
board  as  unfit  for  a  cruiser,  and  its  name  stricken 
from  the  list  of  ships  in  the  Navy  Register. 
The  fact  nevertheless  appears  that  the  said 
vessel  is  subject  to  the  usual  naval  routine  and 
put  to  kindred  uses,  and  that  her  officers  are 
subject  to  the  same  rules  as  before  she  was  con- 
demned. Wliere  officers  are  charged  with  the 
responsibilities  and  duties  of  officers  on  sea 
duty,  the  emoluments  follow  the  responsibili- 
ties'and  duties.  (Pierce  i'.  U.  S.,  33  Ct.  Cls., 
294.) 

Vessel  having  no  cre'wr  but  civiHan 
laborers. — It  is  sufficient  to  entitle  an  officer 
to  sea  pay  that  the  vessel  on  which  he  is,  is  em- 
ployed by  authority  of  law;  she  need  not  be  in 
commission  or  engaged  in  navigation;  her  crew 


879 


Sec.  1571. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


need  not  be  seamen,  but  may  be  a  small  force 
of  civilian  laborers  from  a  dockyard.  (Wyckoff 
V.  U.  S.,  34  Vt.  C\8.,  2S8.} 

Vessel  in  reserve  with  reduced  comple- 
ment.—It  is  not  the  location  of  a  ship,  but  the 
condition  w-ith  reference  to  the  sea,  qualified 
by  the  further  condition  of  an  officer's  being 
''subjected  to  such  restrictions,  regulations, 
and  requirements  as  are  incident  to  service  at 
sea,"  vrhich  determines  his  right  to  sea  pay. 
Accordingly,  held,  that  a  pa>^naster  ordered  to 
a  designated  station,  "for  duty  on  board  the 
Ajax  and  the  other  monitors  off  that  place," 
his  orders  designating  the  duty  as  shore  duty, 
is  not  entitled  to  sea  pay,  the  said  ships  not 
being  in  any  designated  service,  but  hdng  in 
port,  held  in  reserve  for  sea  service  and  reduced 
in  complement.  (Corwine  v.  U.  S.,  24  Ct. 
Cls.,  104.) 

A  ship  of  war  afloat,  manned,  in  a  serviceable 
condition,  and  able  to  proceed  to  sea,  is  in 
eer\-ice,  though  she  may  need  more  men  and 
stores  to  make  her  sea  service  effective,  and 
although  she  may  be  lying  in  port,  held  in 
reserve  for  sea  ser\dce  and  reduced  in  comple- 
ment. An  officer  on  such  a  vessel  is  in  sea 
service  if  he  is  subjected  to  the  restrictions, 
regulations,  and  requirements  which  are  inci- 
dent to  service  at  sea.  (Aulick  v.  U.  S.,  27  Ct. 
Cls.,  109,  distinguishing  Corwine  v.  U.  S.,  24 
Ct.  Cls.,  104,  in  that,  in  the  latter  case,  the 
officer  failed  to  show  that  he  was  subjected  to 
the  restrictions,  regulations,  and  requirements 
incident  to  sea  service.) 

Vessel  loaned  to  State  as  school  ship. — 
A  lieutenant  in  the  Navy  assigned,  by  order  of 
the  Secretary  of  the  Navy,  to  duty  as  executive 
officer  of  a  vessel  of  the  United  States,  furnished 
by  the  Secretary  to  the  State  of  New  York  as  a 
school  ship,  is  entitled  to  sea  pay  as  well  wliile 
the  vessel  is  attached  to  a  wharf  in  the  harbor 
of  New  York  as  while  she  is  on  a  cruise,  and 
although  tliis  service  is  called,  in  the  Secretary's 
order  for  the  officer's  detail,  "employment  on 
shore  duty,"  and  notwithstanding  the  officer  is 
receiving  pay  from  the  State  as  instructor  in  its 
nautical  school  upon  the  vessel.  (U.  S.  v. 
Bamette,  165U.  S.,174.) 

Duty  on  shore  in  corm^ection  with  ves- 
sels.— A  naval  paymaster  on  shore  duty  at  a 
navy  yard  is  not  entitled  to  pay  for  sea  duty, 
though  required  by  the  Secretary  of  the  Navy, 
in  addition  to  his  regular  duties,  to  take  charge 
of  the  accounts  of  certain  vessels  temporarily  at 
anchor  off  the  yard  and  in  conamission  for  sea 
service.     (Carpenter  v.  V.  S.,  15  Ct.  Cls.,  247.) 

Duty  as  lighthouse  inspector. — An  officer 
of  the  Navy  assigned  to  duty  as  a  lighthouse 
inspector,  under  Revised  Statutes,  section  4671, 
and  ordered  to  inspect  the  light  stations  in  his 
district,  is  not  entitled  to  sea  pay  under  section 
1571,  Revised  Statutes,  while  making  his  tour 
of  inspection,  though  it  be  by  water  and  in- 
volve going  to  sea.  To  be  entitled  to  sea  pay 
under  section  1571,  Rexised  Statutes,  an  officer 
must  be  afloat  and  under  orders  to  perform  sea 
senice.  (Schoonmaker  v.  U.  S.,  19  Ct.  Cls., 
170.) 

Oflacer  at  sea,  suspended  from  duty. — A 
paymaster  at  sea,  but  suspended  fi'om  duty 
pending  an  investigation  of  his  accounts,  is  not 


rendering  sea  service  within  the  intent  of  sec 


tion  1571,  Rexised  Statutes,  and  is  entitled 
only  to  waiting-orders  pay.  While  in  attend- 
ance before  the  court-martial,  he  is  entitled  to 
shore-duty  pay;  after  his  court-martial,  awaiting 
the  re\iew  of  the  court's  proceedings  by  the 
President,  he  is  entitled  to  waiting-orders  pay. 
(Sullivan  v.  U.  S.,  32  Ct.  Cls.,  402^ 

It  is  not  the  mere  being  at  sea  which  entitles 
an  officer  to  sea  pay,  but  it  is  his  being  at  sea  in 
such  a  legal  condition  as  entitles  him  to  the 
pay  incident  to  that  condition.  In  this  case 
the  officer  was  at  sea,  in  that  he  was  on  board  a 
receiving  ship  under  the  order  of  the  depart- 
ment, but  he  was  not  at  sea  within  the  meaning 
of  the  law  entitling  him  to  sea  pay.  He  was, 
by  his  own  fault,  without  duty  and  in  the  dis- 
charge of  no  functions;  so  far  as  public  and 
efficient  services  were  concerned,  ne  had  no 
participation  in  them,  and  would  have  been 
guilty  of  a  further  offense  if  he  had  attempted 
to  exercise  any  of  his  powers  as  an  officer. 
(Sullivan  v.  U.  S.,  32  Ct.  Cls.,  402.) 

Distinction  between  "rendering  service 
at  sea"  and  being  in  "sea  service."— There 
is  a  distinction  between  rendering  service  and 
being  in  service;  an  officer  may  be  in  sea  service 
though  not  rendering  service  at  sea.  (Aulick 
V.  U.  S.,  27  Ct.  Cls.,  109.) 

An  officer  sleeping  in  his  berth  is  not  render- 
ing service,  but  is  nevertheless  in  service;  an 
officer  on  shore  leave  for  a  few  hours  while  his 
vessel  is  in  a  foreign  port  is  in  sea  serAice,  though 
not  rendering  ser\ice;  and  sea  pay  does  not 
stop  because  the  officer  chances  for  the  moment 
to  be  on  dry  land.  And  so  it  is  with  a  vessel. 
Ships  of  war,  in  time  of  peace,  are  for  the  gi-eater 
part  of  the  time  in  a  condition  of  idleness. 
They  sail  somewhere  and  do  nothing;  they  sail 
somewhere  else,  and  again  do  nothing;  they 
return  home,  and  await  orders.  A  ship  of  war 
may  pass  her  entire  hf e  in  a  condition  of  readi- 
ness to  serve,  but  of  never  serving.  (Aulick  v. 
V.  S.,  27  Ct.  Cls.,  109.) 

Vessel  on  trial  trip  but  not  accepted. — 
Where  a  vessel  is  on  her  trial  trip  prior  to  ac- 
ceptance, and  still  within  the  possession  and 
control  of  the  builders,  the  United^  States,  how- 
ever, having,  by  the  payment  of  installments, 
acquired  an  interest  equal  to  49  out  of  50  parts 
of  the  vessel,  she  must  be  regarded  as  practi- 
cally the  oroperty  of  the  Government.  (Wil- 
Hamst'.  U.  S.,  47  Ct.  Cls.,  186.) 

OflB.cer  traveling  on  vessel  as  passen- 
ger.— Section  1571  does  not  admit  of  the  con- 
struction that  a  steamer  upon  which  a  naval 
officer  takes  passage  imder  orders  of  the  depart- 
ment thereby  becomes  a  "vessel  employed  by 
authority  of  law."  A  person  who  takes  pas- 
sage upon  a  steamer,  or  a  seat  in  a  railway 
carriage,  does  not  "employ"  such  steamer  or 
carriage  in  any  just  sense.  (IT.  S.  v.  Thomas, 
195  U.  S.,  418.) 

Under  section  1571,  Revised  Statutes,  the 
term  "vessels  employed  by  authority  of  lavv" 
is  restricted  to  vessels  owned_  or  otherwise 
engaged  in  the  Government  service;  and  travel 
under  orders  by  naval  officers  upon  a  merchant 
vessel  is  not  service  within  the  meaning  of  that 
section.  (McGowan  v.  U.  S.,  49  Ct.  Cls., 
454.) 

Section  1571  recognizes  the  fact  that  a  naval 
officer,  like  a  landsman,  may  be  on  shore  duty 


880 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1571, 


and  yet  sailing  the  seas  beyond  the  3-mile 
limit.     (McGowan  r.  U.  S.,  49  Ct.  Cls.,  454.) 

WTiere  an  assistant  surgeon  in  the  Navy 
travels  under  orders,  as  a  passenger,  on  a  United 
States  naval  vessel  from  China  to  reach  an 
assignment  to  duty  in  the  Philippine  Islands, 
he  is  not  performing  sea  serA-ice  and  is  only 
entitled  to  shore  pay.  "^^hile  he  was  traveling 
under  orders,  his  orders  were  not  to  perform 
sea  ser^dce  in  the  sense  required  to  entitle  him 
to  sea  pay.  (Thompson  v.  U.  S.,  49  Ct.  Cls., 
459.) 

Where  an  assistant  surgeon  in  the  Navy  was 
ordered  by  the  commander  in  chief  of  the 
Asiatic  station  to  proceed  on  the  U.  S.  S.  Iris 
and  report  to  the  senior  squadron  commander 
off  Taku,  China,  for  temporary  duty  with  the 
detachment  of  marines;  and  under  orders  of 
the  senior  squadron  commander  he  performed 
ser\'ices  in  China  with  the  United  States 
marines,  such  services  were  shore  duties  and 
not  duties  at  sea;  during  the  period  in  question 
he  was  not  attached  to  and  performed  no  duty 
on  any  ship.  (Thompson  v.  U.  S.,  49  Ct.  Cls., 
459.) 

Mixed  duty;  which  is  paramount. — • 
WTiere  the  assignment  of  an  officer  to  duty  by 
the  Navy  Department  expressly  imposes  upon 
him  the  continued  discharge  of  his  sea  duties, 
and  qualifies  the  shore  duty  as  merely  tem- 
poraiy  and  ancillary  to  the  regular  sea  duty, 
the  presumption  is  that  the  shore  duty  is  tem- 
porary and  does  not  operate  to  interfere  mth  or 
discharge  the  officer  from  the  responsibilities 
of  sea  duties  to  which  he  is  regularly  assigned; 
and  he  is  entitled  to  sea  pay  during  the  time  of 
such  temporary  shore  duty.  (U.  S.  v.  Engard, 
196  U.  S.,  511.) 

■\\Tiere  an  officer  is  assigned  to  the  command 
of  a  training  ship,  and  of  a  vessel  at  a  station 
used  as  a  training  ship,  and  his  most  arduous 
and  responsible  duties  are  discharged  on  shore, 
it  must  be  held  that  the  ship  is  the  incident 
and  the  shore  the  principal.  (McGowan  v. 
U.  S.,  36  Ct.  Cls.,  63.) 

WTiere  the  question  is  one  of  shore  duty  or 
sea  ser\ice,  the  facts  in  each  case  must  be  con- 
sidered, and  where  there  is  a  preponderance 
the  service  having  paramount  character  must 
constitute  the  basis  on  which  to  predicate 
the  right  of  pay.  (McGowan  v.  U.  S.,  36  Ct. 
Cls.,  63.) 

The  fact  that  the  Secretaiy  of  the  NaAy 
designates  a  mixed  duty  as  shore  duty  is  an 
indication  of  the  construction  which  he  places 
upon  it.     (McGowan  v.  U.  S.,  36  Ct.  Cls.,  63.) 

A  naval  officer  on  shore  duty  who  was  as- 
signed to  the  temporary  command  of  a  vessel 
in  the  Coast  Survey  ser%-ice,  but  who  continued 
on  shore  duty  and  did  not  live  continuously  on 
board  the  vessel,  and  was  not  subject  to"  the 
restrictions,  _  requirements,  or  regulations  of 
sea  service,  is  entitled  only  to  shore-duty  pay. 
(Taussig  V.  U.  S.,;38  Ct.  Cls.,  104.) 

Officers  of  the  Navy  may  perform  duty  on  a 
recei\'ing  ship  which  vnll  entitle  them  to  sea 
pay;  but  only  where  they  wear  their  uniform 
when  on  duty,  live  and  mess  on  board  the  ves- 
sel, and  are  suljject  to  all  the  restrictions  and 
regulations  applicable  to  vessels  at  sea;  but  an 
officer  also  ha^■ing  shore  duty,  liA-ing  and  mess- 
ing on  shore  in  quartei's  furnished  to  him  by 


the  Government,  and  presmnably  recei\ing 
the  allowances  to  which  Army  officers  are  en- 
titled, is  entitled  only  to  shore-duty  pay. 
(Mahan  i;.  U.  S.,  40  Ct.  Cls.,  36.) 

It  is  well  settled  that  where  a  naval  officer 
attached  to  a  vessel  and  detailed  for  shore  duty 
is  not  called  upon  to  perform  services  ashore 
incompatible  with  the  performance  of  his  duty 
on  his  ship,  and  the  shore  services  are  temporary 
and  not  so  different  in  character  as  to  detach 
him  in  fact  from  his  vessel,  his  paramount  duty 
is  sea  service.  (Leach  v.  U.  S.,  44  Ct.  Cls., 
,    132.) 

The  primary  question  in  the  case  of  a  naval 
j  officer,  "detailed  for  special  duty  on  shore," 
is  one  of  fact;  and  the  court  can  not  determine 
the  character  of  the  duty  on  shore  or  the  right 
of  the  officer  to  sea  pay  or  shore-duty  pay  with- 
out knowing  what  were  the  ser\dces  rendered 
on  shore,  and  how  far  they  detached  him  in 
fact  from  his  vessel.  (Leach  v.  U.  S.,  44  Ct. 
Cls.,  132.) 

WTiere  an  officer  of  the  Navy  is  assigned  by 
proper  authority  to  sea  duty  on  a  vessel  at 
Guam,  he  can  not  be  considered  as  "detailed 
for  shore  duty  beyond  seas,  "  because  the  naval 
governor  of  Guam,  by  a  verbal  order,  directed 
him  to  do  duty  on  shore.  (Furlong  v.  U.  S., 
45  Ct.  Cls.,  493.) 

Duty  performed  on  shore  by  a  naval  officer 
without  ha\ing  been  detailed  for  shore  duty 
must  be  regarded  as  temporary  service  per- 
formed while  he  officially  remains  on  board 
the  vessel  to  which  he  is  attached.  (Furlong 
■y.  U.  S.,  45  Ct.  Cls.,  493.) 

When  a  naval  officer  attached  to  a  vessel 
and  entitled  to  sea-service  pay  is  ordered  by 
the  Secretary  of  the  Navy  to  report  for  recriut- 
ing  service  '  'in  addition  to  your  present  duties, " 
and  he  is  absent  from  his  vessel  on  recruiting 
duty  on  shore  a  year,  he  is  not  entitled  to  sea 
pay  though  he  remains  technically  attached  to 
his  vessel.     (Doyle  v.  U.  S.,  46  Ct.  Cls.,  181.) 

An  officer  entirely  relieved  from  all  the  re- 
sponsibilities and  discomforts  of  sea  service  for 
more  than  a  year  while  with  a  recruiting  party 
on  shore  can  not  be  regarded  as  on  temporary 
shore  ser\-ice,  though  technically  the  order 
assigning  him  to  recruiting  duty  did  not  detach 
him  from  his  vessel  or  separate  him  from  sea 
duty.     (Doyle  v.  U.  S.,  46  Ct.  Cls.,  181.) 

Where  an  officer  in  the  performance  of  sea 
duty  left  his  vessel  on  authorized  leave,  and 
without  rejoining  his  vessel  or  resuming  his 
sea  duty  thereon  was  placed  on  special  tempo- 
rary duty  ashore  in  the  Bureau  of  NaA-igation, 
he  was  not,  while  in  the  performamce  of  such 
temporary  duty  ashore,  in  a  sea-duty  status, 
and  was  not  entitled  to  sea-duty  pay.  (18 
Comp.  Dec,  340.) 

When  right  to  sea  pay  begins  and  ends. — 
The  right  of  a  naval  officer  to  sea  pay  begins 
when  sea  service  begins,  independent  of  any 
order  of  the  Navy  Department.  (Wyckoff  v. 
U.  S.,  34  Ct.  Cls.,  288.) 

An  officer  detached  from  one  vessel  and 
assigned  to  duty  on  another,  by  proper  author- 
ity, is  on  shore  duty  while  passing  fi-om  the  one 
to  the  other,  and  entitled  only  to  shore-duty 
pay.     (Ryan  v.  U.  S.,  38  Ct.  Cls.,  143.) 

The  act  of  May  13,  1908  (35  Stat.,  128),  pro- 
vides that  "all  officers  on  sea  duty  and  all 


881 


Sec.  1571. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


officers  on  shore  duty  beyond  the  continental 
limits  of  the  United  States  shall  %vhile  so  serving 
receive  ten  per  centum  additional  of  their 
salaries  and  increase  as  above  provided,  and 
such  increase  shall  commence  from  the  date  of 
reporting  for  duty  on  board  ship  or  the  date 
of  sailing  from  the  United  States  for  shore  duty 
beyond  the  seas  or  to  join  a  ship  in  foreign 
waters." 

An  officer  in  1867  and  1868  was  not  entitled 
to  sea  pay  after  being  detached  from  his  vessel 
on  a  foreign  station  and  ordered  to  report  to  the 
Secretary  of  the  Navy.  (Bishop  v.  U.  S., 
38  Ct.  Cls.,  473.) 

Wliere  an  officer  of  the  Navy  is  detached 
from  sea  duty  he  ceases  to  be  entitled  to  sea 
pay,  and,  generally,  increased  pay  will  cease 
when  an  officer  is  detached  from  service  en- 
titling him  thereto.  (McCully  v.  U.  S.,  42  Ct. 
Cls.,  275.) 

Prior  to  the  act  of  May  13,  1908,  there  was  no 
statute  gi^^^ng  officers  a  10  per  cent  increase  in 
pay  subsequent  to  detachment  abroad  from 
eea  duty,  unless  while  retm-ning  they  were 
actually  in  the  performance  of  sea  duty. 
Accordingly,  the  clause  in  the  act  of  May  13, 
1908,  sa\ing  officers  of  the  Navy  from  reduction 
in  pay  and  allowances  then  authorized  by  law, 
has  no  application  to  a  claim  for  sea  pay  by  an 
officer  after  detachment  abroad  from  sea  duty 
and  while  retm-ning  to  the  United  States. 
(McDonald  v.  U.  S.,  48  Ct.  Cls.,  123.) 

Prior  to  the  act  of  May  13, 1908,  officers  of  the 
Navy  were  entitled  to  the  increased  pay  for 
shore  duty  beyond  seas  until  their  return  to 
the  United  States;  and  the  act  of  May  13,  1908, 
did  not  change  the  law  so  as  to  deprive  naval 
officers  of  the  right  to  increased  pay  while  re- 
tmning  home  upon  orders  fiom  foreign  shore 
duty;  the  sa^•ing  clause  in  that  act  preserved 
the  right  of  naval  officers  in  this  respect  under 
laws  previously  existing.  (Gearing  v.  U.  S., 
46  Ct.  Cls.,  187;  see  note  to  sec.  1556,  R.  S., 
vmder  "Additional  pay  for  special  duty,"  with 
respect  to  "Shore  duty  beyond  seas.") 

The  statutory  situation  is  anomalous,  pro- 
viding extra  compensation  for  officers  on  foreign 
shore  duty  from  the  time  of  departure  from  the 
United  States  to  the  time  of  their  return,  and 
in  restricting  the  extra  allowance  in  the  case 
of  naval  officers  on  sea  service  to  a  period  ex- 
tending only  to  the  time  consumed  in  reaching 
the  assignment  for  sea  duty;  but  there  is  no 
escape  fi'om  that  conclusion,  which  the  express 
language  of  the  statute  prescribes.  The  ine- 
quality will  not  justify  the  court  in  departing 
from  the  express  tenns  of  the  law.  (McDonald 
4).  U.S.,  48  Ct.  Cls.,  123.) 

An  officer  is  not  entitled  to  sea-duty  pay 
while  aboard  a  tmnsport  en  route  to  the  United 
States  after  having  been  detached  fi-om  sea 
duty  abroad.  (McDonald  v.  U.  S.,  48  Ct.  Cls., 
123,  citing  Farenholt  v.  U.  S.,  42  Ct.  Cls.,  114.) 

In  United  States  v.  Thomas  (195  U.  S.,  418), 
the  Supreme  Court  declined  to  extend  the 
benefits  of  extra  compensation  provided  for 
Anny  officers  for  service  beyond  the  limits  of 
the  United  States,  under  the  acts  of  May  26, 
1900  (31  Stat.,  211),  and  March  2, 1901  (31  Stat., 
903),  to  naval  officers  performing  sea  service 
imder  similar  conditions;  and  doubtless  the  act 
of  May  13,  1908,  allowing  increased  pay  "from 


the  date  of  reporting  for  duty  on  board  ship  or 
the  date  of  sailing  from  the  United  States  for 
shore  duty  beyond  the  seas  or  to  join  a  ship  in 
foreign  waters,"  was  enacted  with  this  decision 
in  view.  Just  why  the  period  of  computation 
in  allowing  the  extra  per  centmn  is  so  spe- 
cifically circumscribed  is  difficult  to  perceive; 
nevertheless  the  express  language  of  tne  act  so 
provides,  and  the  express  provisions  of  law 
must  govern.  (McDonald  v.  U.  S.,  48  Ct.  Cls., 
123.) 

Sea  pay  allowed  for  shore  duty. — See 
note  to  section  1556,  Revised  Statutes,  under 
"Additional  pay  for  special  duty,"  with  re- 
spect to  the  pay  of  the  Superintendent  of  the 
Naval  Academy  and  of  the  commandant  of 
the  navy  yard,  Mare  Island. 

The  duty  of  the  Judge  Advocate  General  of 
the  Navy  being  shore  duty,  he  was  entitled 
only  to  shore-duty  pay  under  the  act  of  June  8, 
1880  (21  Stat.,  164),  wliich  provided  that  the 
Judge  Advocate  General  shall  have  "the  rank, 
pay,  and  allowances  of  a  captain  in  the  Navy 
or  a  colonel  in  the  Marine  Corps,  as  the  case 
may  be. "  The  court  knows  of  no  instance 
where  an  officer  in  the  Navy  is  entitled  to  sea 
pay  and  allowances  while  performing  shore 
duty,  except  where  it  is  so  provided  by  express 
statute.     (Lemly  v.  V.  S.,  28  Ct.  Cls.,  468.) 

Under  the  amendatory  act  of  June  5,  1896 
(29  Stat.,  251),  which  provided  that  the  Judge 
Advocate  General  of  the  Navy  should  receive 
the  "highest  pay  of  a  captain  in  the  Navy," 
held,  that  the  Judge  Advocate  General  was 
entitled  to  the  sea  pay  of  a  captain.  (11  Comp. 
Dec,  11.  For  other  cases,  see  note  to  sec.  421, 
R.  S.,  relating  to  pay  of  chiefs  of  bureaus  in 
the  Navy  Department.) 

The  words  "highest  rates  of  pay_ attached  to 
their  respective  grades"  as  used  in  a  special 
act  of  Congress,  approved  July  29,  1886  (24 
Stat.,  346),  increasing  the  pay  of  certain  offi- 
cers for  exceptional  shore  service,  mean  some- 
thing more  than  "sea  pay";  these  words 
entitle  the  officers  concerned  to  the  highest 
sea  pay  of  their  grade,  i.  e.,  the  rate  of  pay 
allowed  for  sea  duty  to  officers  in  that  grade 
entitled  to  the  maximum  increase  for  longevity. 
(Schuetze  v.  U.  S.,  24  Ct.  Cls.,  299.) 

Officers  temporarily  absent  from,  their 
ship. — See  note  to  section  1556,  Revised 
Statutes,  under  "Absence  from  duty";  see 
also  note  above,  imder  "Mixed  duty,  which  is 
paramount." 

An  officer  attached  to  a  vessel  at  sea,  and  not 
detached  from  it  by  competent  authority,  is 
entitled  to  sea  jjay  wliile  temporarily  in  a 
naval  hospital  because  of  a  gunshot  wound 
incurred  in  the  line  of  duty.  (CoUins  v.  U. 
S.,  37  Ct.  Cls.,  222.) 

A  Navy  regulation  providing  that  "an  officer 
temporarily  absent  from  a  ship  in  commission 
to  which  he  is  attached  shall  continue  to  re- 
ceive sea  pay"  does  not  contravene  section 
1556,  Revised  Statutes.  (Collins  v.  U.  S.,  37 
Ct.  Cls.,  222.) 

Where  a  naval  officer  is  attached  to  a  vessel 
when  ordered  to  a  hospital  for  treatment,  he  is 
entitled  to  sea  pay  while  in  the  hospital;  but 
if  when  orderea  to  the  hospital  he  is  awaiting 
the  arrival  of  the  vessel  to  which  he  has  been 
ordered,  he  is  not  then  attached,  and  will  not 


882 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1573. 


be  entitled  to  sea  pay  while  in  the  hospital. 
(Ackley  v.  U.  S.,  40  C"t.  Cls.,  216.) 

Officers  of  the  Navy  gi-anted  temporary 
leave  of  absence  from  their  ships  are  not,  during 
absence  on  such  leave,  on  "sea  duty,"  and. 
therefore  are  not  entitled  under  the  act  of  May 
13,  1908,  to  the  10  per  cent  additional  pay  there- 
in authorized  for  officers  "while  so  serving." 
(15Comp._Dec.,  656.) 

A  commissioned  officer  of  the  Navy  is  not  en- 
titled to  the  10  per  cent  additional  pay  for  sea 
duty  while  on  leave  of  absence,  even  though 
the  leave  b e  of  only  one  day's  duration .  ( Comp . 
Dec,  June  8,  1915,  172  S.  and  A.  Memo.,  3703.) 

A  warrant  officer  of  the  Na\y  granted  leave 
of  absence  from  duty  at  sea  is  entitled,  under 
the  act  of  August  29,  1916  (39  Stat.,  578),  to 
full  pay  at  the  rate  received  by  him  while  on 
sea  duty.  (23  Comp.  Dec,  200.  Note:  The 
act  of  Aug.  29,  1916,  provided  that  "warrant 
officers  shall  be  allowed  such  leave  of  absence, 
with  full  pay,  as  is  now  or  may  hereafter  be 
allowed  other  officers  of  the  United  States 
Navy. ") 


Sea  service  nonnal  duty  of  naval  oflS.- 
cers. — If  Army  officers  should  be  allowed 
increased  pay  when  ordered  to  sea  or  to  a 
foreign  port,  it  would  not  follow  that  naval 
officers  rec^ving  Army  pay  would  be  entitled 
to  a  like  increase,  since  such  service  would  be 
wholly  exceptional  in  the  case  of  Army  offi- 
cers, while  it  is  the  natural  and  normal  duty  of 
naval  officers  to  engage  in  sea  service,  cruise  in 
foreign  waters,  and  lie  up  in  foreign  ports. 
(U.  S.  V.  Thomas,  195  U.  S.,  418.) 

The  normal  pay  of  naval  officers  under  the 
Navy  personnel  act  of  March  3,  1899  (30  Stat., 
1004),  is  the  higher,  i.  e.,  sea  service  pay;  the 
exceptional  pay  is  for  shore  service;  both  are 
dependent  upon  the  character  of  the  service. 
(Ryan  v.  U.  S.,  38  Ct.  Cls.,  143.) 

tjnder  the  Navy  personnel  act  the  normal 
pay  of  officers  in  the  Navy  is  sea  pay,  and  the 
exceptional  pay  is  for  shore  service;  where  an 
officer  performs  shore  duty  and  receives  shore 
pay,  he  is  not  entitled  to  the  normal  pay. 
(Mahan  v.  U.  S.,  40  Ct.  Cls.,  36.) 


Sec.  1572.  [Detention  beyond  term  of  enlistment.     Superseded.] 


This  section  provided  as  follows: 
"Sec.  1572.  All  petty  officers  and  persons  of 
inferior  ratings  who  are  detained  beyond  the 
terms  of  service,  according  to  the  provisions  of 
section  fourteen  hundred  and  twenty-two,  or 
who,  after  the  termination  of  their  sei'vice, 
voluntarily  re-enter,  to  serve  until  the  return 
to  an  Atlantic  port  of  the  vessel  to  wliich  they 
belong,  and  until  their  regular  discharge  there- 
from, shall,  for  the  time  during  which  they  are 
so  detained  or  so  serve  beyond  their  original 
terms  of  service,  receive  an  addition  of  one- 
foiu-th  of  theii'  former  pay." — (17  July,  1862,  c. 
204,  s.  17,  V.  12,  p.  610.) 

It  was  superseded  by  the  act  of  March  3, 
1875  (18  Stat.,  484),  which  also  superseded 
sections  1422-1425,  Revised  Statutes,  and  re- 


enacted,  with  amendments,  the  provisions  of 
all  these  sections  as  section  1422,  Revised  Stat- 
utes. See  notes  to  sections  1422-1425,  Revised 
Statutes. 

Additional  pay  not  pay  of  rating. — The 
additional  pay  to  which  petty  officers  and 
persons  of  inferior  ratings  are  temporarily  en- 
titled, under  the  provisions  of  section  1422  and 
1572,  Revised  Statutes,  should  not  be  added  to 
their  regular  rates  of  pay  in  computations  under 
a  statute  (sec.  4631,  R.  S.,  par.  5),  providing  for 
the  distribution  of  bounty  among  the  officers 
and  crew  of  a  vessel  "in  proportion  to  their 
respective  rates  of  pay  in  the  service."  (En- 
gagement off  Santiago  Bay,  36  Ct.  Cls.,  200.) 

For  other  cases,  see  notes  to  sections  1418, 
1422,  and  1569,  Revised  Statutes. 


Sec.  1573.  [Honorable-discharge  gratuity  and  continuous-service  pay.]  If 
any  enlisted  man  or  apprentice,  being  honorably  discharged,  shall  reenlist  for 
four  years  within  four  months  thereafter,  he  shall,  on  presenting  his  honorable 
discharge  or  on  accomiting  in  a  satisfactory  manner  for  its  loss,  be  entitled  to 
a  gratuity  of  four  months'  pay  equal  in  amount  to  that  which  he  would  have 
received  if  he  had  been  employed  in  actual  service :  Provided,  That  any  enlisted 
man  in  the  Navy  whose  term  of  enlistment  has  been  extended  for  an  aggregate 
of  four  years  shall,  after  the  expiration  of  the  preceding  four-year  term  of 
enlistment  upon  which  the  extension  is  made  and  if  otherwise  entitled  to  an 
honorable  discharge,  be  paid  the  gratuity  above  provided:  And  'provided, 
That  any  man  who  has  received  an  honorable  discharge  from  his  last  term  of 
enlistment,  or  who  has  received  a  recommendation  for  reenlistment  upon  the 
expiration  of  his  last  term  of  enlistment,  who  reenlists  for  a  term  of  four  years 
within  four  months  from  the  date  of  his  discharge,  shall  receive  an  increase  of 
one  dollar  and  thirty-six  cents  per  month  to  the  pay  prescribed  for  the  rating 
in  which  he  serves  for  each  successive  reenlistment:  And  provided  further, 
That  an  extension  of  the  period  of  enlistment  as  hereinbefore  authorized, 
aggregating  four  years,  shall  be  held  and  considered  as  equivalent  to  continuous 


883 


Sec.  1573. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


service  with  respect  to  till  rights,  privileges,   and  benefits  granted  for  such 
service  pursuant  to  law." 


This  section  was  expressly  amended  and 
reenacted  to  read  as  above  by  act  of  August  22, 
1912  {:\7  Stat.,  331).  As  originally  enacted  it 
read  as  follows: 

"Sec.  1573.  If  any  seaman,  ordinary  seaman, 
landsman,  fireman,  coal  heaver,  or  boy,  being 
honorably  discharged,  shall  reenlist  for  three 
years,  wnthin  three  months  thereafter,  he  shall, 
on  presenting  his  honorable  discharge,  or  on 
accounting  in  a  satisfactory  manner  for  its  loss, 
be  entitled  to  pay,  during  the  said  three  months, 
equal  to  that  to  which  he  would  have  been 
entitled  if  he  had  been  employed  in  actual 
sendee."— (2  Mar.  1855,  c.  136,  s.  2,  v.  10, 
p.  627.     7June,  1864,  c.  ni,v.  13,  p.  120.) 

It  had  previously  been  amended  by  joint 
resohition  of  June  11,  1896  (29  Stat.,  476), 
which  reads  as  follows:  "That  the  benefits  of 
honorable  discharge,  as  conferred  by  section 
fourteen  hundred  and  twenty-six  of  the  Re- 
A-ised  Statutes,  and  of  three  months'  pay  upon 
reenlistment  after  honorable  discharge,  as  con- 
ferred by  section  fifteen  hundred  and  seventy- 
three,  upon  seamen,  ordinary  seamen,  lands- 
men, firemen,  coal  heavers,  and  boys,  be,  and 
the  same  are  hereby,  extended  and  made  appli- 
cable to  all  enlisted  persona  in  the  Navy. 
And  all  accounts  of  paymasters  who  have  made 
payments  to  enlisted  men,  not  of  the  classes 
named  in  sections  fourteen  hundred  and 
twenty-six  and  fifteen  hundred  and  seventy- 
three  of  the  Re\d8ed  Statutes  as  if  they  had 
been  included  in  the  provisions  of  said  sections, 
shall  be  allowed  and  passed  by  the  accounting 
officers  of  the  Treasury  as  if  they  had  been  in- 
cluded in  said  sections." 

It  was  further  amended  and  reenacted 
by  the  Navy  personnel  act  of  March  3,  1899, 
section  16  (.30  Stat.,  1008),  which  fixed  the  term 
of  enlistment  in  the  Naxy  at  four  years,  and 
expressly  pro-vided  that  section  1573,  Revised 
Statutes,  be  amended  to  read  as  follows:  "If 
any  enlisted  man  or  apprentice,  being  hon- 
orably discharged,  shall  reenlist  for  four  years 
mthin  four  months  thereafter,  he  shall,  on  pre- 
senting his  honorable  discharge  or  on  accounting 
in  a  satisfactory  manner  for  its  loss,  be  entitled 
to  pay  during  the  said  four  months  equal  to 
that  to  which  he  would  have  been  entitled  if 
he  had  been  employed  in  actual  service;  and 
that  any  man  who  has  received  an  honorable 
discharge  from  his  last  term  of  enlistment,  or 
who  has  received  a  recommendation  for  re- 
enlistment  upon  the  expiration  of  his  last  term 
of  service  of  not  less  than  three  years,  who 
reenlists  for  a  term  of  four  years  within  four 
months  from  the  date  of  his  discharge,  shall 
receive  an  increase  of  one  dollar  and  thirty-six 
cents  per  month  to  the  pay  prescribed  for  the 
rating  in  which  he  serves  for  each  consecutive 
reenlistment." 

Other  modifications  of  section  1573 
have  been  made  by  the  follo\ving  enactments: 

Bjr  act  of  August  22,  1912  (37  Stat.,  331), 
provision  was  made  for  the  discharge  of  any 
enlisted  man  within  three  months  before  the 
expiration  of  his  term  of  enlistment  or  extended 


enlistment,  "without  prejudice  to  any  right, 
privilege,  or  benefit  that  he  would  have  re- 
ceived, except  pay  and  allowances  for  the 
unexpired  period  not  serv-ed,  or  to  which  he 
would  then^after  become  entitled,  had  he 
served  his  full  term  of  enlistment  or  extended 
enlistment." 

_  By  act  of  April  25.  1917  (40  Stat.,  38),  exten- 
sion of  minority  enlistments  in  the  Navy  and 
Marine  Corps  was  authorized  under  similar 
conditions  as  provided  by  law  for  extending 
other  enlistments. 

By  act  of  August  29,  1916  (39  Stat.,  560),  it 
was  provided  that  enlisted  men  who  serve  one 
year  at  sea  shall,  in  time  of  peace,  if  they  so 
elect,  be  given  a  discharge  without  cost;  that 
"an  honorable  discharge  may  be  granted  under 
this  provision,  but  when  so  granted  shall  not 
entitle  the  holder,  in  case  of  reenlistment,  to 
the  benefits  of  an  honorable  discharge  granted 
upon  completion  of  an  enlistment."  This 
enactment  was  repealed  by  act  of  March  4, 
1917  (39  Stat.,  1171). 

By  act  of  August  29,  1916  (39  Stat.,  590),  it 
was  provided  that  "Men  who  have  enrolled  in 
the  Fleet  Naval  Reserve  within  four  months 
of  the  date  of  their  discharge  from  the  Regular 
Navy  shall,  upon  reenlistment  in  the  regular 
naval  service  within  four  months  of  the  date  of 
discharge  from  the  Fleet  Naval  Reserve,  be 
entitled  to  the  same  gratuity  and  additional 
pay  as  if  they  had  reenlisted  in  the  regular 
naval  service  within  four  months  of  discharge 
therefrom." 

By  act  of  March  4,  1917  (39  Stat.,  1174),  it 
was  provided  that  any  former  member  of  class  1 
of  the  United  States  Naval  Reserve,  estab- 
lished by  act  of  March  3,  1915  (.38  Stat.,  940), 
who  reenlisted  in  the  Navy  prior  to  May  1, 
1917,  shall  be  held  and  considered  to  have 
reenlisted  within  four  months  from  the  date  of 
discharge  from  the  Navy  for  the  purpose  of 
continuous  service  pay. 

By  act  of  May  22, 1917,  section  3  (40  Stat.,  85), 
it  was  provided  "that  enlistments  in  the  Navy 
and  Marine  Corps,  during  such  time  as  the 
United  States  may  be  at  war,  shall  be  for  four 
years,  or  for  such  shorter  period  or  periods  as 
the  President  may  prescribe,  or  for  the  period 
of  the  present  war."  (This  enactment  amended 
sec.  1573,  R.  S.  See  25  Comp.  Dec,  315,  noted 
below,  under  "Short-term  enlistments." 

By  act  of  July  1,  1918  (40  Stat.,  719),  it  was 
provided  that  retired  enlisted  men  recalled  to 
active  service  shall  be  entitled  to  the  benefits  of 
continuous  ser\'ice  for  such  length  of  time  as 
employed  in  active  service.  (See  note  below, 
under  "Retired  enlisted  men.") 

By  act  of  July  11,  1919  (41  Stat.,  134),  it  was 
pro\'ided  that  "until  June  30,  1920,  enlistments 
in  the  Navy  may  be  for  terms  of  two,  three,  or 
four  years,  and  all  laws  now  applicable  to  four- 
year  enlistments  shall  apply,  under  such  regu- 
lations as  may  be  prescribed  by  the  Secretary 
of  the  Navy,  to  enlistments  for  "a  shorter  period 
with  proportionate  benefits  upon  discharge  and 
reenlistment." 


884 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1573. 


By  the  same  act  of  July  11,  1919  (41  Stat., 
139),  it  was  pro\'ided  that  enrolled  men  of  the 
Naval  Reserve  Force,  who  have  performed 
active  duty  during  the  war,  may  be  transferred 
to  the  Regular  Na\'y  to  serve  out  the  unexpired 
term  of  their  enrollment,  and  that  men  so 
transferred  "shall  be  entitled  to  and  receive 
the  same  pay,  rights,  privileges,  and  allow- 
ances in  all  respects  as  now  provided  by  exist- 
ing law  for  men  regularly  discharged  and  re- 
enlisted  immediately  upon  expiration  of  their 
full  four-year  enlistment  in  the  Regular  Navy 
or  Marine  Corps." 

The  same  act  of  July  11,  1919  (41  Stat.,  139), 
authorized  the  issuance  of  honorable  discharges 
to  men  who  served  in  the  war  with  the  German 
Government  and  were  discharged,  after  No- 
vember 11, 1918,  prior  to  expiration  of  their  full 
enlistment. 

The  said  act  of  July  11,  1919  (41  Stat.,  139). 
provided  that  men  who,  after  February  3,  1917, 
and  before  November  11,  1918,  enlisted  for 
four  years,  shall,  upon  application  to  the  Sec- 
retary of  the  Navy  on  or  before  September  1, 
1919,  be  held  to  have  enlisted  for  the  duration 
of  the  war,  and  shall,  when  discharged,  be 
granted  an  honorable  discharge  if  otherwise 
entitled  thereto;  and  that  any  enlisted  man  so 
discharged  from  the  Navy,  Marine  Corps,  or 
Coast  Guard,  and  thereafter  reenlisting  in  the 
Navy  or  Marine  Corps  within  four  months, 
under  conditions  prescribed  by  law,  for  a  period 
of  four  years,  "shall  be  entitled  to  receive  the 
benefits  of  the  gratuity  pay  provided  by  exist- 
ing law  for  reenlistments." 

By  the  same  act  it  was  provided  that  men 
enlisted  for  the  period  of  the  war,  or  who  are 
regarded  as  having  enlisted  for  the  duration  of 
the  war,  may,  if  entitled  to  an  honorable  dis- 
charge, extend  their  enlistments  for  one,  two, 
three,  or  four  years;  and  shall  be  entitled  to 
and  receive  the  same  rights,  privileges,  pay, 
and  allowances  in  all  respects  as  pro\dded  by 
law  for  men  who  extend  enlistments  on  com- 
pletion of  their  terms  of  enlistments,  except  as 
to  gratuity  pay;  and  that,  as  to  the  latter,  such 
men  shall  be  allowed  one  month's  pay  for  an 
extension  of  one  year,  two  months'  pay  for 
an  extension  of  two  years,  three  months'  pay 
for  an  extension  of  three  years,  and  four  months' 
pay  for  an  extension  of  four  years. 

By  the  same  act  (41  Stat.,  141)  it  was  provided 
that  enlisted  men  discharged  to  accept  appoint- 
ments as  officers  in  the  Naval  Reserve  Force 
who  reenlist  in  the  Navy  \vithin  four  months 
after  termination  of  their  reserve  ser\-ice  shall 
be  entitled  to  count  his  service  in  the  Regular 
Navy  and  his  active  service  in  the  Naval  Re- 
serve Force  as  continuous  for  purposes  of  con- 
tinuous-ser\-ice  pay. 

By  act  of  May  18,  1920,  section  10  (41  Stat., 
603),  it  was  pro\'ided  "that  any  enlisted  man 
who  shall  reenlist  in  the  Navy  within  one  year 
from  the  date  of  his  discharge  therefrom  shall, 
upon  such  reenlistment,  be  entitled  to  and 
shall  receive  the  same  benefits  as  are  now 
authorized  by  law  for  reenlistment  ^vithin  four 
months  from  date  of  last  discharge  from  the 
service:  Provided,  That  this  section  shall  be- 
come inoperative  six  months  after  the  date  of 
the  approval  of  this  act."  (This  pro-vision  was 
not  retroactive,  but  was  effective  only  from 


May  18,  1920,  to  November  17,  1920,  inclusive. 
(26  Comp.  Dec,  1065.) 

By  act  of  June  4,  1920  (41  Stat.,  836,  sec.  7), 
it  was  pro\'ided  "that  hereafter  enlistments  in 
the  Navy  and  in  the  Marine  Corps  may  be  for 
terms  of  two,  three,  or  four  years,  and  all  laws 
now  applicable  to  four-year  enlistments  shall 
apply,  under  such  regulations  as  may  be  pre- 
scribed by  the  Secretary  of  the  Naw,  to  en- 
listments for  a  shorter  period  with  proportionate 
benefits  upon  discharge  and  reenlistment." 

Historical  note. — Prior  to  the  passage  of 
the  Navv  personnel  act  of  March  3,  1899,  sec- 
tion 16  (30  Stat.,  1008),  the  right  of  enlisted 
men  of  the  Na\y  to  increased  pay,  based  on 
pre\'ious  continuous  8er\'ice,  was  governed  by 
regulations  of  the  Navy.  (6  Comp.  ,Dec., 
589.) 

Under  section  1569,  Revised  Statutes,  the 
President  had  the  authority  to  provide  an  in- 
crease of  pay  for  continuous  ser\-ice,  and  to 
make  it  subject  to  such  conditions  as  he  might 
deem  proper.     (4  Comp.  Dec,  281.) 

Continuous-service  certificates  and  additional 
pay  of  $1  per  month  for  each  continuous  re- 
enlistment to  all  persons  holding  such  certifi- 
cates was  provided  for  in  a  circular  issued  by 
Mr.  Borie,  Secretary  of  the  Navy,  on  April  26, 
1869,  the  provisions  of  which  were  embodied  in 
the  Navy  Regulations  of  1870,  as  articles  1070 
and  1071,  and  with  slight  verbal  changes  re- 
peated in  the  Regulations  of  1876  as  paragraphs 
18  and  19  of  chapter  10,  section  2,  page  100. 
The  same  general  provisions  were  repeated  in 
General  Order  No.  327  of  November  21,  1884, 
and  incorporated  in  the  Navy  Regulations  of 
1893  as  articles  810  and  1172.  (3  Comp.  Dec, 
316.) 

Under  the  Navy  Regulations  of  1893,  article 
1172,  and  1896,  article^ll74,  in  order  to  entitle 
a  seaman  to  increased  pay  for  continuous  service 
he  must  have  received  an  "honorable"  dis- 
charge from  a  previous  enlistment  or  a  recom- 
mendation for  reenlistment  upon  its  termina- 
tion, and  must  have  reenlisted  for  three  years 
within  three  months  from  the  date  of  discharge. 
An  exception,  however,  was  made  in  the  case 
of  enlisted  men  who  were  prevented  from 
serving  the  full  term  of  their  enlistments  by 
reasons  of  the  wi'ecking  of  the  vessel  on  which 
they  were  serving.     (4  Comp.  Dec,  281.) 

Although  no  specific  regulation  therefor 
existed,  it  was  held  that  an  enlisted  man  dis- 
charged prior  to  expiration  of  his  term  of  en- 
listment, in  the  case  where  a  vessel  was  -vvi-ecked 
or  lost,  and  who  was  issued  a  continuous- 
service  certificate  in  accordance  ■R'ith  the  prac- 
tice of  the  Navy  Department,  was  entitled  to 
the  additional  compensation  authorized  by  the 
Navy  Regulations  for  all  persons  holding  such 
certificates,  the  same  as  though  he  had  actually 
completed  his  term  of  enlistment.  (3  Comp. 
Dec,  316.) 

A  practice  of  the  Navy  Department  relating 
to  the  pay  of  enlisted  men  was  the  equivalent 
of  a  specific  regulation  of  the  Secretary  of 
the  Navy,  and,  like  all  other  regulations  of 
the  Navy  Department  relating  to  the  pay  of 
seamen  of  the  Navy,  was  presumed  to  be  the 
act  of  the  President  prescrilaing  the  pay  of 
these  men  as  requii'ed  by  section  1569,  Revised 
Statutes.     (3  Comp.  Dec,  316.) 


885 


Sec.  1573. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


The  honorable  discharge  required  by  the 
Navy  Ilep;ulations  prescribing  conlinuous- 
serAice  pay  was  that  provided  for  in  sections 
1426  and  1425),  Revised  Statutes,  and  was  de- 
pendent upon  fidelity  and  obedience  in  the 
service.  It  differed  from  the  "ordinary" 
discharge  in  that  the  latter  caiTied  with  it  no 
testimonial  as  to  the  special  good  qualities  and 
fitness  of  the  holder.  Accordingly,  Md,  that 
where  an  enlisted  man  UT)on  the  expiration  of 
his  term  of  enlistment  received  an  "ordinary" 
discharge,  which  contained  no  recommendation 
for  reenlistment,  he  was  not  entitled  to  the 
benefit  of  continuous  ser\ice.  Having  there- 
after received  an  honorable  discharge  and 
complied  \nth  the  other  conditions  of  continu- 
ous sqrvice,  he  was  entitled  to  increased  pay 
from  the  date  of  this  fii'st  reenlistment  after 
receiving  an  honorable  discharge.  (4  Comp. 
Dec,  281.) 

The  pm-pose  of  the  joint  resolution  of  Jime 
11,  1896  (above  quoted),  was  to  legalize  the 
practice  of  paying  all  enlisted  men,  upon 
reenlistment,  the.  extra  pay,  which  practice 
had  crept  into  the  sendee  without  warrant  of 
law.  This  practice  doubtless  arose  from  the 
fact  that  the  honorable  discharge  pro^ided  for 
in  section  1429,  Re\'ised  Statutes,  was  con- 
fused with  the  honorable  discharge  gi'anted 
under  section  1426.  The  object  of  the  honor- 
able discharge  provided  for  in  section  1429  is 
stated  in  that  section  to  be  "as  a  testimonial  of 
fidelity  and  obedience, "  while  the  honorable 
discharge  pro\ided  for  in  section  1426,  taken 
in  connection  with  section  1573,  is  seen  to  be 
for  the  purpose  of  holding  out  the  extra  pay  to 
the  six  lowest  classes  of  enlisted  men  in  the 
Na\-y  as  an  inducement  to  reenlist.  By  the 
joint  resolution  cited.  Congress  has  seen  fit 
to  extend  the  pri^-ileges  arising  from  honorable 
discharges  upon  reenlistment  far  beyond  what 
was  originally  proA-ided.     (2  Comp.  Dec,  608.) 

The  joint  resolution  of  June  11,  1896  (above 
quoted),  extended  the  benefits  conferred  by 
sections  1426  and  1573,  Re\ised  Statutes,  to 
all  enlisted  persons.     (2  Comp.  Dec,  608.) 

For  other  cases,  see  note  to  section  1426, 
ReAised  Statutes. 

In  particular  cases,  prior  to  the  act  of  March 
3,  1899,  the  Secretary  of  the  Na\'y  could  waive 
the  pro\dsion  requiring  reenlistment  within 
three  months  from  the  date  of  pre^ious  honor- 
able discharge  as  a  condition  to  payment  of 
continuous-ser\-ice  pay.     (6  Comp.  Dec,  589.) 

The  increase  in  monthly  pay  for  continuous 
service  is  now  fixed  by  law,  instead  of  by  Navy 
Regulations.     (5  Comp.  Dec,  929.) 

The  rate  of  increased  pay  for  continuous 
sen-ice  which,  before  the  Na\^  personnel  act 
of  March  3,  1899,  section  16  (30  Stat.,  1008), 
had  been  fixed  by  the  President  under  section 
1569,  Re^i8ed  Statutes,  became  by  said  act 
a  part  of  the  statutoiy  law.  Said  act  fixed  the 
increase  of  SI. 36  per  month  to  the  pay  pre- 
scribed for  the  rating,  for  each  consecutive 
reenlistment,  as  the  measure  of  the  increase 
of  value  to  the  sendee  of  one  who  so  reenlists; 
and  it  is  not  within  the  power  of  anyone,  until 
the  law  is  changed,  to  fix  a  greater  or  less  rate. 
Under  section  1569  the  President  could  fix 
the  pay  to  be  allowed  an  enlisted  man,  and 


could  change  same  from  time  to  time,  as  he 
deemed  just  and  proper;  but  when  he  had 
fixed  the  rate,  then  by  section  16  of  the  person- 
nel act  Congress  declared  what  increased 
amount  the  man  should  receiA-e  for  reenlist- 
ment. (8  Comp.  Dec,  227;  see  note  below, 
under  "Continuous-sendee  pay  defined. ") 

"Continuous-service  pay"  defined. — 
Broadly  speaking,  continuous-sendee  pay  in- 
cludes any  pay  or  gratuity  whicli  is  based  upon 
the  element  of  continuity  in  the  sendee  of 
enlisted  men.  So  defined",  continuous-sendee 
pay  includes  the  so-called  honorable  discharge 
gratuity,  since  the  payment  of  such  gratiuty  is 
dependent  on  continuity  of  sendee.  It  also 
includes  additional  pay  allowed  under  Gen- 
eral Order  No.  34  of  1906  (noted  under  sec. 
1569,  R.  S.),  as  well  as  continuous-sendee  pay 
proper.     (25  Comp.  Dec,  440.) 

Reenlistment  pay  under  General  Order  No. 
34  of  1906  (noted  under  sec.  1569,  R.  S.),  con- 
tinuous-sendee pay  under  the  act  of  August  22, 
1912,  and  honorable-discharge  gratuity  under 
the  act  of  August  22,  1912,  are  three  distinct 
classifications  of  pay  that  should  be  kept  sep- 
arate and  apart  in  any  consideration  of  an  en- 
listed man's  respective  rights  thereto,  each 
being  dependent  upon  conditions  peculiar  to 
itself.     (26  Comp.  Dec,  565.) 

Na\-y  Department  General  Order  No.  20  of 
January  1,  1901  (noted  under  sec.  1569,  R.  S.), 
fixing  the  pay  of  mess  attendants  for  the  second 
and  third  enlistments,  and  adding  §4  to  the 
monthly  pay  of  the  rating  for  a  first  reenlist- 
ment, and  S4  more  per  month  for  a  second 
reenlistment,  in  addition  to  the  $1.36  per  month 
for  each  consecutive  reenlistment  allowed  by 
section  16  of  the  Na\'y  personnel  act,  was  con- 
trary to  law  in  that  the  rate  of  increased  pay 
to  be  allowed  for  continuous  sendee  was  fixed 
by  Congress  in  the  NaAy  personnel  act,  and  the 
order  of  the  President  fixed  an  additional 
amount  per  month  which  constituted  an  in- 
crease in  continuous-sendee  pay.  (8  Comp. 
Dec,  227.) 

Na^y  Department  General  Order  No.  34  of 
November  28,  1906,  publishing  Executive  order 
of  November  27,  1906  (quoted  under  sec. 
1569,  R.  S.),  pro\dding  increased  compensation 
for  trained  men  who  are  citizens  of  the  United 
States,  was  within  the  authority  conferred 
upon  the  President  by  section  1569,  Re%dsed 
Statutes,  and  not  contrary-  to  the  act  of  March  3, 
1899,  section  16,  pro\dding  continuous-servdce 
pay  of  SI. 36  per  month.  General  Order  No. 
34  does  not  attempt  to  pro^dde  for  continuous- 
sendee  pay,  but  does  undertake  to  pro\dde  for 
pay  based  on  length  of  sendee,  or  longe\dty 
pay.  The  main  purpose  of  the  statute  pro^dd- 
ing  for  continuous-ser\dce  pay  was  to  encourage 
immediate  reenlistments,  while  that  of  General 
Order  No.  34  was  to  establish  higher  rates  of 
pay  for  trained  men.  Their  periods  of  prior 
ser\dce  were  not  required  to  immediately  pre- 
cede the  last  enlistment,  but  might  have  been 
at  any  time,  continuous  reenlistment  not  being 
required.  (13  Comp.  Dec,  448,  distinguishing 
8  Comp.  Dec,  227;  see  also  17  Comp.  Dec, 
27,  32.) 

"Pay"  defined. — The  term  "pay  "  in  section 
1573,  Revised  Statutes,  entitling  men  on  re- 


886 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1573. 


enlistment  to  "pay"  during  the  said  three 
months,  means  regular  pay,  and  does  not  in- 
clude increased  pay  for  extra  duty.  (5  Comp. 
Dec,  241.) 

Neither  the  additional^  pay  of  an  enlisted 
man  of  the  Na\y  for  service  as  a  gun  pointer, 
nor  that  for  service  on  board  of  submarine 
vessels,  is  "pay"  within  the  meaning  of 
that  tenn  as  used  in  section  1573  of  the  Revised 
Statutes  as  amended  by  the  act  of  March  3, 
1899,  section  16  (30  Stat.,  1008).  (12  Comp, 
Dec,  772.) 

The  reenlistment  pay  provided  by  section 
1573,  Revised  Statutes,  as  amended  by  act  of 
March  3,  1899,  includes  the  extra  pay  provided 
for  the  holders  of  good-conduct  medals  by 
article  1257  of  the  Navy  Regulations  of  1905. 
(13  Comp.  Dec,  253.) 

On  reenUstment  a  man  is  entitled  to  the 
regular  pay  of  his  rating  dining  the  four  months 
as  provided  by  section  1573,  as  amended,  sub- 
ject, however,  to  said  pay  being  increased  or 
reduced  dming  the  said  four  months,  and  in- 
cluding pay  for  good-conduct  medal  awarded 
on  day  of  discharge.     (17  Comp.  Dec,  355.) 

Under  the  provisions  of  the  act  of  July  11, 
1919  (41  Stat.,  140),  the  increases  in  pay  au- 
thorized by  section  15  of  the  act  of  May  22, 
1917  (40  Stat.,  87),  became  a  part  of  the  penna- 
nent  base  rate  of  pay  of  an  enlisted  man  in 
the  Navy  during  the  continuance  of  certain 
enlistments;  and  upon  this  new  base  rate  and 
permanent  increases  by  continuous  service, 
medals,  and  General  Order  No.  34  of  1906  (noted 
under  sec.  1569,  R.  S.),  the  honorable-dis- 
charge gratuity,  wliich  is  authorized  for  men 
who  reenlist  in  the  regular  Navy  should  be 
computed.     (26  Comp.  Dec,  139.) 

The  $2  per  month  additional  pay  authorized 
by  the  act  of  February  4,  1919  (40  Stat.,  1056), 
to  each  enlisted  or  enrolled  person  of  the  naval 
service  to  whom  is  awarded  a  medal  of  honor, 
distinguished-serv'ice  medal,  or  a  Navy  cross 
should  be  included  in  computing  honorable- 
dischai'ge  gratuity  of  enlisted  men  who  reenlist 
in  the  Navy  for  four  years  within  four  months 
after  an  honorable  discharge.  (26  Comp.  Dec, 
976.) 

Character  of  discharge. — See  "Historical 
note"  above;  see  also  note  to  section  1426, 
Revised  Statutes;  and  see  statutes  quoted  above 
under  this  section. 

To  entitle  a  seaman  in  the  Navy  to  the  thi'ee 
months'  extra  pay  for  reenlisting,  known  as 
"honorable-discharge"  money,  provided  for  in 
section  1573,  Revised  Statutes,  his  discharge 
from  his  previous  service  must  have  been 
honorable  within  the  terms  of  sections  1426  and 
1429,  Revised  Statutes.  An  ordinary  discharge 
was  not  sufficient  to  entitle  him  to  the  three 
months'  extra  pay.     (4  Comp.  Dec,  281.) 

An  enlisted  man  of  the  Navy  who  received 
a  "bad-conduct"  discharge  from  his  last  en- 
listment is  not  entitled  to  receive  in  his  present 
enlistment  any  continuous-service  pay.  Under 
section  1573,  Revised  Statutes,  as  amended,  he 
must  have  received  an  honorable  discharge 
from  his  last  term  of  enlistment,  or  a  recom- 
mendation for  reenlistment  upon  the  expiration 
of  his  last  term  of  enlistment;  otherwise,  on 
reenlistment  he  loses  the  benefit  of  continuous- 
service  pay  which  he  received  under  his  pre- 


vious enlistment,  as  well  as  failing  to  acquire 
any  new  right  to  continuous-service  pay.  (20 
Comp.  Dec,  856.) 

An  enlisted  man  of  the  NaAry  dishonorably 
discharged,  pursuant  to  the  sentence  of  a 
general  court-martial,  within  three  months 
preceding  the  expiration  of  his  enlistment,  and 
recommended  for  reenlistment,  is  not  entitled 
on  reenlistment  within  four  months  to  any 
continuous-service  pay.  His  discharge  was 
pursuant  to  the  sentence  of  com't-martial,  and 
not  for  expii'ation  of  enlistment;  although  it 
happened  to  occur  within  three  months  prior 
to  expiration,  it  was  not  a  discharge  authorized 
by  the  act  of  August  22,  1912  (37  Stat.,  331, 
quoted  above).  As  his  discharge  was  not 
honorable,  and  as  it  occurred  prior  to  the  ex- 
piration of  his  last  term  of  service,  and  inde- 
pendently of  the  act  of  August  22,  1912,  the 
recommendation  for  reenlistment  received  by 
him  was  not  a  "recommendation  for  reenlist- 
ment upon  the  expiration  of  his  last  term  of 
enlistment"  within  the  meaning  of  section 
1573,  as  amended.     (21  Comp.  Dec,  871.) 

An  enlisted  man  of  the  Navy  who,  on  being 
dishonorably  discharged  after  the  expii-ation  of 
his  enlistment,  is  recommended  for  reenlist- 
ment, is  entitled  upon  reenlistment  within 
four  months  after  the  date  of  discharge  to  ad- 
ditional pay  for  continuous  service.  (Comp. 
Dec,  Aug.  31,  1914,  70  MS.  Comp.  Dec,  1914; 
cited  in  21  Comp.  Dec,  871.) 

The  act  of  August  22,  1912  (37  Stat.,  331), 
providing  for  the  discharge  of  men  at  any 
time  within  three  months  prior  to  expii'ation 
of  enlistment,  without  prejudice,  etc., 
(quoted  above),  amended  section  1573,  Revised 
Statutes.     (24  Comp.  Dec,  776.) 

An  enlisted  man  of  the  Navy  whose  preceding 
period  of  enlistment  expired  while  he  was  on 
furlough  without  pay,  as  authorized  by  act  of 
August  29,  1916  (39  Stat.,  580),  and  who  there- 
fore, in  accordance  vvith  the  practice  then  pre- 
vailing, did  not  receive  an  honorable  discharge 
upon  expiration  of  his  enlistment,  his  enlist- 
ment ha\ing  been  regarded  as.  terminated  by 
furlough,  and  not  by  expiration,  held,  not  en- 
titled, on  reenlistment,  to  continuous-service 
pay  as  authorized  by  the  act  of  August  22, 1912 
(37  Stat.,  331),  amending  section  1573,  Revised 
Statutes  (25  Comp.  Dec,  328). 

As  an  enlistment  which  expires  wMle  the 
enlisted  man  is  in  desertion  is  not  a  termination 
of  service  by  expiration  of  enlistment,  held, 
that  an  enlisted  man  of  the  Navy  who  deserts, 
surrenders  himself  subsequent  to  the  period  of 
enlistment,  and  is  permitted  to  reenlist,  is  not 
entitled  to  continuous-service  pay  under  the 
act  of  August  22, 1912  (37  Stat.,  331),  not  having 
received  an  honorable  discharge  from  his  last 
term  of  enlistment,  and  not  ha\ing  been  recom- 
mended for  reenlistment  upon  the  expiration 
of  his  last  tenn  of  enlistment.  (26  Comp.  Dec, 
250.) 

Period  allowed  for  reenlistment. — See 
"Historical  note"  above.  See  also  act  of 
February  8,  1889  (25  Stat.,  657),  which  per- 
mitted persons  honorably  discharged,  in  ac- 
cordance with  section  1429,  Revised  Statutes, 
to  elect  a  home  on  any  receiving  ship,  with  one 
ration  per  day,  during  any  portion  of  the  time 
allowed  them  to  reenlist  with  the  pecuniary 


887 


Sec.  1573. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


benefits  authorized  by  section  1573,  Re\-i8ed 
Statutes. 

A  seaman  who  was  honorably  discharged 
September  21,  1898,  and  reenlisted  Decem- 
ber 21,  1898,  reenlisted  "  within  three  months  " 
as  pnnided  by  section  1573,  Re\i8ed  Statutes, 
and  became  entitled  to  pay  during  the  said 
three  months.     (5  Comp.  Dec,  362.) 

The  Secretary  of  the  Naxy  has  no  authority 
to  waive  the  three  months'  limitation  in  the 
provision  of  section  1573,  RoN-ised  Statutes, 
as  amended  by  joint  resolution  of  June  1 1 ,  1896, 
which,  prior  to  the  passage  of  the  naval  per- 
sonnel act  of  March  3,  1899,  section  16  (30  Stat., 
1008),  pro\ided  for  three  months'  pay  on  reen- 
listment  in  the  Na^'y  for  a  term  of  three  years 
within  a  period  of  three  months.  (6  Comp. 
Dec,  589.) 

Under  article  861,  NaA-y  Regulations,  1900, 
an  enlisted  man  of  the  Na^y  who  accepted  an 
appointment  as  paymaster's  clerk  thereby  ter- 
minated his  enlistment;  and  where  he  served 
as  paymaster's  clerk  more  than  four  months  he 
was  not  entitled,  on  subsequently  reenlisting, 
to  count  his  prior  service  as  an  enlisted  man  in 
computing  his  longe\ity  pay.  (10  Comp.  Dec, 
528.) 

Where  an  enlisted  man  was  discharged  at  his 
own  request,  with  recommendation  for  re- 
enlistment,  prior  to  the  expiration  of  his  term 
of  enlistment  but  after  serving  for  more  than 
three  years,  to  enable  him  to  accept  an  appoint- 
ment as  paymasters  clerk,  he  was  entitled, 
upon  reenlisting  within  four  months  from  the 
time  of  his  discharge,  to  the  continuous-service 
pay  provided  for  by  the  act  of  March  3,  1899. 
(11  Comp.  Dec,  682.) 

The  phrase  "within  four  months,"  as  used 
in  section  16  of  the  act  of  March  3, 1899  (30  Stat., 
1008),  amending  section  1573,  means  wdthin 
four  calendar  months;  and  in  computing  the 
same  the  day  of  discharge  and  that  day  only 
should  be  excluded.     (14  Comp.  Dec,  583.) 

An  enlisted  man  of  the  Navy  who  was  hon- 
orably discharged  January  19,  1907,  and  reen- 
listed May  20,  1907,  did  not  reenlist  "within 
four  months"  within  the  meaning  of  section  16 
of  the  act  of  March  3,  1899,  and  is  not  entitled 
to  the  honorable-discharge  gratuity  pay  for 
said  four  months,  nor  to  the  $1.36  increase  of 

Say,    during   such   reenlistment.     (14    Comp. 
►ec,  583.) 

Where  an  enlisted  man  of  the  Na\'y  had  been 
honorably  discharged,  and  applied  for  reenlist- 
ment within  the  four  months  allowed  by  the 
act  of  March  3,  1899,  but  was  not  then  formally 
reenlisted  on  account  of  the  fact  that  his  con- 
tinuous-service certificate  had  not  been  re- 
turned by  the  officer  to  whom  he  had  forwarded 
same  with  request  for  transportation;  and  said 
man  was  formally  reenlisted  on  a  date  subse- 
quent to  the  expiration  of  the  four  months, 
ha\'ing  in  the  meantime  actually  entered  on 
duty  with  the  knowledge  of  the  commanding 
officer  of  the  ship  upon  which  he  had  made 
application  for  reenlistment,  held,  that  such 
man  had  reenlisted  ^\•ithin  the  meaning  of  the 
act  of  March  3,  1899,  and  is  entitled  to  all  the 
benefits  of  said  act  as  if  his  reenlistment  had 
been  formally  completed  on  the  date  of  appli- 
cation.   (16  Comp.  Dec,  359.) 


An  honorably  discharged  enlisted  man  of  the 
Navy  applied  for  reenlistment  to  a  traveling 
recruiting  party;  was  given  a  preliminary  ex- 
amination and  authorization  for  reenlistment 
"subject  to  reexamination  physically";  was 
physically  reexamined  and  found  disqualified 
for  reenlistment  and  gi-anted  permission  to 
enter  a  na\al  hospital  for  operative  treatment, 
if  he  so  desired,  with  a  view  to  reenlistment— 
all  within  four  months  from  the  date  of  his  dis- 
charge. Subsequent  to  the  expiration  of  the 
four  months'  period  he  entered  the  hospital, 
and  on  discharge  therefrom  entered  into  the 
formal  contract  of  enlistment  and  executed  the 
oath  of  allegiance.  Ilrkl,  that  he  was  not 
reenlisted  \\ithin  four  months  from  the  date  of 
discharge,  and  is  not  entitled  to  honorable- 
discharge  gratuity  or  continuous-ser\ice  pay 
on  such  reenlistment.     (19  Comp.  Dec,  334.) 

Short-term  enlistments.— While  contin- 
uous-service pay  provided  for  enlisted  men 
of  the  Navy  under  the  act  of  August  22,  1912 
(37  Stat.,  331),  is  authorized  only  when  reen- 
listment is  for  a  term  of  four  vears,  the  act  of 
May  22,  1917  (40  Stat.,  85),  modifies  the  provi- 
sion of  the  former  act  as  to  the  term  of  enlist- 
ment, and  by  a  fair  construction  of  the  two 
acts  if  an  enlisted  man  reenlist  s  for  another 
full  term,  as  prescribed  by  the  latter  act, 
whether  it  be  for  four  years  or  for  such  period  as 
may  be  prescribed  by  the  President,  or  for  the 
duration  of  the  present  war,  he  is  entitled  to 
continuous-service  pay  if  such  reenlistment 
takes  place  within  four  months  from  the  date 
of  discharge.     (25  Comp.  Dec,  315.) 

For  the  purpose  of  computing  payment  of 
honorable-cUscharge  gratuity,  and  continuous- 
service  pay,  enlistments  in  the  Navy  for  "the 
period  of  the  present  war, "  authorized  by  sec- 
tion 3  of  the  act  of  May  22,  1917  (40  Stat.,  84), 
may  be  considered  to  have  expired  on  date  of 
discharge;  or  in  case  of  an  extension  of  enlist- 
ment, as  provided  by  the  act  of  July  11,  1919 
(41  Stat.,  139),  on  date  the  extension  becomes 
effective.     (26  Comp.  Dec,  132.) 

Under  the  act  of  July  11,  1919  (41  Stat.,  134), 
above  quoted,  providing  for  short-term  enlist- 
ments ''with  proportionate  benefits  upon  dis- 
charge and  reenlistment, "  held  that  a  man 
reenlisting  for  a  term  of  three  years  acquired 
a  right  to  continuous-serAdce  increase  of  pay 
equal  to  three-fourths  of  $1.36  per  month, 
plus  10  per  cent.     (26  Comp.  Dec,  399.) 

The  words  "with  proportionate  benefits 
upon  discharge  and  reenlistment"  apply  to 
discharge  and  reenlistment  after  expiration  of 
an  enlistment  for  less  than  four  years,  entered 
into  under  authority  of  the  act  of  July  11,  1919. 
Accordingly,  a  man  reenlisting  in  the  Navy 
after  July  11,  1919,  for  three  years,  was  entitled 
to  increase  of  continuous-service  pay  as  allowed 
for  a  four-year  enlistment;  but  upon  his  dis- 
charge and  subsequent  reenlistment  he  would 
be  entitled  to  "  pi-oportionate  benefits  "  or  three- 
fourths  of  the  continuous-service  pay  allowed 
upon  reenlistment  after  discharge  fi'om  a  four- 
j'ear  enlistment.     (26  Comp.   Dec,   706.) 

The  amount  of  honorable-discharge  gi-atuity 
of  enlisted  men  of  the  Navy  on  reenlistments  for 
two  years,  or  three  years,  or  four  years,  author- 
ized bv  acts  of  July  11,  1919,  and  June  4,  1920 


888 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1573. 


(above  quoted),  is  equal  to  the  pay  the  enlisted 
men  would  have  received  if  they  had  been  em- 
ployed in  actual  service  two  months,  or  three 
months,  or  four  months,  respectively.  (27 
Comp.  Dec,  210,  following  27  Comp.  Dec, 
101.) 

In  computing  continuous-service  pay,  the 
unit  of  ser\dce  is  four  years;  for  each  full  four 
years  of  ser\ice  the  additional  pay  authorized 
should  be  credited  for  the  ensuing  four  years  of 
service  without  regard  to  length  of  time  actually 
served  in  any  particular  enlistment  of  shorter 
periods  authorized  by  acts  of  July  11,  1919,  and 
June  4,  1920  (above  quoted).  (27  Comp.  Dec, 
210.) 

Enlisted  men  of  the  Navy  serving  over  four 
years  continuously,  imder  short-term  enlist- 
ments or  extensions  of  enlistments,  are  entitled 
to  continuous-service  pay  at  the  expiration  of 
the  first  four  years  of  continuous  service,  and' 
at  the  expiration  of  each  fom*  years  of  contin- 
uous service  thereafter.     (27  Comp.  Dec,  506.) 

A  man  enlisted  for  three  years.  May  13, 
1896,  was  honorably  discharged  May  12,  1899, 
on  account  of  expiration  of  enlistment,  and 
reenlisted  the  next  day  for  a  term  of  four  years 
as  prescribed  by  the"  act  of  March  3,  1899. 
Held,  that  he  was  entitled  to  the  honorable-dis- 
charge gratuity  of  four  months'  pay,  as  pre- 
scribed by  the  act  of  March  3,  1899,  and  not  to 
the  gratuity  of  three  months'  pay  as  prescribed 
by  section  1573,  Revised  Statutes,  prior  to  its 
amendment;  further  helf],  that  he  was  entitled 
to  continuous-service  pay  of  §1.36  per  month, 
as  prescribed  by  the  act  of  March  3,  1899,  and 
not  to  the  continuous-service  pay  of  $1  per 
month  under  the  Executive  orders  in  force 
prior  to  March  3,  1899.     (5  Comp.  Dec,  929.) 

Minority  enlistment. — A  person  enlisted 
in  the  Navy  during  minority,  and  honorably 
discharged  within  three  months  before  the  ex- 
piration of  his  enlistment  (as  authorized  by 
act  of  Aug.  22,  1912,  37  Stat.,  331),  and  who  re- 
enlisted  for  four  years  the  day  foUomng  his 
discharge,  is  entitled  to  all  the  benefits  accru- 
ing to  an  enlisted  man  for  continuous-service 
pay,  although  still  a  minor  at  the  time  of  his 
discharge  and  reenlistment.  (20  Comp.  Dec, 
409.) 

Extension  of  enlistment. — An  extension 
of  enlistment  for  one  year,  as  provided  in  the 
act  of  August  22,  1912  (37  Stat.,  330),  entitles 
an  enUsted  man  of  the  Navy  to  be  credited 
under  such  extension  with  continuous-service 
certificate  pay.     (19  Comp.  Dec,  819.) 

When  an  enlisted  man  of  the  Nav^y  has  been 
detained  in  the  service  under  section  1422, 
Revised  Statutes,  the  enlistment  in  which  he 
is  detained  may,  under  the  act  of  August  22, 
1912  (37  Stat.,  331),  be  extended  before  the 
expiration  of  the  authorized  detention,  to  date 
not  from  the  expiration  of  the  original  enlist- 
ment but  from  the  end  of  the  period  for  which 
he  was  legally  detained .  When  so  extended ,  the 
man  is  entitled  to  continuous-service-certificate 
pay.  (20  Comp.  Dec,  377,  modifying  19  Comp. 
Dec,  819.) 

The  first  enlistment  of  a  seaman  was  extended 
one  year,  and  during  extension  his  rating  was 
changed  to  gunner's  mate,  third  class;  at  ex- 
piration of  extended  enlistment  he  was  honor- 
ably  discharged   and   reenUsted    within   four 


months.  Held,  that  on  reenlistment  he  was 
entitled  to  four  months'  honorable-discharge 
gratuity  computed  at  the  rate  of  pay  he  was 
receiving  when  discharged,  which  included 
his  rating  pay  as  a  gunner's  mate,  third  class; 
and  that  he  was  entitled  to  continuous-service 
pay,  and  10  per  cent  increase  thereof.  (20 
Comp.  Dec,  361.) 

An  enlisted  man  of  the  Navj^  who  surrendered 
from  desertion  and  was  restored  to  duty  with- 
out trial,  and  who,  after  serving  a  period  of 
probation,  was  allowed  to  extend  his  enlist- 
ment, is  entitled  under  such  extended  enlist- 
ment to  credit  for  pay  for  continuous  service, 
his  status  being  the  same  as  though  he  had  not 
been  absent  during  his  term  of  enlistment. 
(25  Comp.  Dec.,  920.) 

The  extension  of  enlistment  law  granted  to 
enlisted  men  of  the  Regular  Nav^y  the  right  to 
continuous-service  pay;  and  honorable-dis- 
charge gratuity  is  payable  if  the  period  for 
which  the  extension  was  made  aggregated  four 
full  years.  (26  Comp.  Dec,  33,  34,  citing  63 
MS.  Comp.  Dec,  136,  Oct.  12,  1912,  and  68  MS. 
Comp.  Dec,  1200,  Feb.  25,  1914.) 

Where  under  the  act  of  August  22,  1912  (37 
Stat.,  331),  an  enlisted  man  of  the  Navy  ac- 
quires a  right  to  the  continuous-service  in- 
crease of  pay  by  extending  his  enlistment,  the 
right  so  acquired,  except  in  cases  where  such 
extension  aggregates  four  years,  terminates 
upon  his  discharge  at  the  expiration  of  the 
extended  period  of  enlistment;  and  thereafter 
the  enlisted  man  acquires  a  right  to  continuous- 
service  pay  only  under  the  same  conditions  aa 
such  right  is  acquired  upon  reenlistment  at  the 
completion  of  a  regular  term  of  enlistment. 
(26  Comp.  Dec,  .399.) 

Where  under  the  act  of  August  22,  1912,  an 
enlisted  man  of  the  Navy  extends  his  enlist- 
ment, he  is  entitled  to  continuous-service  pay 
during  the  period  of  extension  as  if  the  exten- 
sion were  in  fact  a  reenlistment;  but  such  right 
to  continuous-service  pay,  except  in  cases 
where  the  extension  aggregates  four  years, 
terminates  upon  discharge  at  the  expiration  of 
the  extended  enlistment;  and  thereafter,  in 
computing  his  continuous-service  pay  in  sub- 
sequent reenlistments,  the  extension  under 
the  said  act  of  August  22,  1912,  for  less  than  four 
years,  is  to  be  considered  a  part  of  the  original 
enlistment  thus  extended,  and  not  as  a  separate 
and  distinct  enlistment  or  as  part  of  any  sub- 
sequent reenlistment.     (26  Comp.  Dec.,_  706.) 

Naval  reservists. — An  enlisted  man  in  the 
Navy  who,  at  the  expiration  of  his  term  of 
enlistment,  is  not  discharged  therefrom,  but 
under  the  provisions  of  the  act  of  August  29, 
1916  (39  Stat.,  556),  is  transferred  to  the  Fleet 
Naval  Reserve,  and  who,  within  four  months 
after  the  date  of  expiration  of  such  term  of  en- 
listment is  discharged  from  the  Fleet  Naval 
Reserve  and  reenlisted  for  four  years  in  the 
Regular  Navy,  is  entitled,  in  an  otherwise 
proper  case,  to  honorable-discharge  gratuity 
and  continuous-service  pav.  (23  Comp.  Dec, 
535.) 

An  enlisted  man  of  the  Navy  who  reenlists 
within  four  months  of  the  date  of  his  honorable 
discharge  therefrom  is  not  deprived  of  the  gra- 
tuity authorized  under  the  act  of  August  22, 


889 


Sec.  1573. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


1912,  merely  because  of  service  in  the  Naval 
Reserve  during  the  interval.  (24  Comp.  Dec, 
129.) 

A  transferred  member  of  the  Fleet  Naval 
Reserve,  whose  transfer  was  made  after  20 
years'  service  in  the  Rep;ular  Na\^  and  not  at 
the  expiration  of  an  enlistment,  and  who  sub- 
sequently was  discharged  from  the  Fleet  Naval 
Reserve  and  reenlisted  next  day  in  the  Regular 
Navy,  is  not  entitled  to  credit  for  continuous- 
service  pay.  The  cases  of  transferred  meml)ers 
are  not  covered  bv  the  provision  in  the  act  of 
August  29,  191G  (39  Stat.,  590,  above  quoted), 
with  respect  to  enrolled  members  of  the  Naval 
Reser\'e  Force  who  are  discharged  therefrom 
and  reenlist  in  the  Regular  Na^'y,  nor  is  this  case 
covered  by  23  Comp.  Dec,  535  (above  noted), 
which  related  to  enlisted  men  of  the  Na\'y 
transferred  to  the  Fleet  Naval  Reserve  at  the 
expiration  of  a  period  of  enlistment  and  sub- 
secjuentlv  reenlisting  in  the  Regular  Navy.  (25 
Comp.  Dec,  884.) 

Enrolled  men  transferred  from  the  Naval 
Reserve  Force  to  the  Regular  Navy  to  serve 
the  unexpu-ed  term  of  their  enrollment,  in 
accordance  \vith  the  act  of  July  11,  1919  (41 
Stat.,  139,  above  quoted),  are  entitled,  from 
the  date  the  transfer  is  consummated,  to  in- 
crease of  pay  for  continuous  service,  as  well  as 
to  honorable-discharge  gratuity.  (26  Comp. 
Dec,  33.)  But  such  former  reservists  who 
reenlist  in  the  Regular  Navy  for  four  years 
within  four  months  after  discharge  at  the  ex- 
piration of  their  period  of  enrollment  thus 
served  in  the  Regular  Navy  are  not  entitled  to 
a  further  increase  of  pay  for  continuous  service 
in  addition  to  that  received  during  the  period 
of  enrollment  after  transfer  to  the  Regular 
Navy.     (27  Comp.  Dec,  695.) 

Under  the  act  of  August  29,  1916  (39  Stat., 
590,  above  quoted),  an  enlisted  man  of  the 
Navy  who  was  enrolled  in  the  Fleet  Naval 
Reserve  ^^dthin  four  months  after  discharge, 
and  who,  after  discharge  from  the  Fleet  Naval 
Reserve,  was  again  enlisted  in  the  Regular 
Navy  within  the  prescribed  period,  is  entitled 
to  honorable-discharge  gratuity,  computed 
upon  the  pay  he  was  receiving  at  the  date 
of  his  last  discharge  from  the  Regular  Navy\ 
(26  Comp.  Dec,  489.) 

The  act  of  July  11,  1919  (41  Stat.,  141,  above 
quoted),  relating  to  elisted  men  of  the  Navy 
appointed  officers  in  the  Naval  Reserve  Force 
and  subsequently  reenlisting,  preserves  the 
status  previously  acquired  by  continuity  of 
service,  wluch,  without  the  provision,  would 
be  lost  to  such  men;  but  it  does  not  create  any 
right  to  permanent  additions  to  pay  other 
than  those  already  acquired.  (26  Comp.  Dec, 
565;  see  note  above,  under  "Continuous- 
service  pay  defined. ") 

Held,  specifically,  that  the  act  of  July  11, 
1919  (41  Stat.,  141),  providing  that  service  per- 
formed by  the  men  described  therein  ''shall  be 
regarded  as  continuous  for  purposes  of  contin- 
uous-service pay"  does  not  entitle  such  men 
to  an  increase  in  continuous-service  pay  im- 
mediately upon  reenlistment;  that  it  does  not 
entitle  them  to  increase  in  continuous-service 
pay  upon  the  completion  of  four  years  from  the 
date  of  their  last  previous  enlistment  in  the 
Navy;  that  the  pay  of  such  men  upon  restora- 


tion, including  permanent  additions  previously 
earned  by  reason  of  continuity  in  service, 
mil  remain  unchanged  for  the  period  of  their 
enlistment,  except  as  it  may  be  affected  by 
changes  in  law  or  rating;  and  that  such  men 
will  not  be  entitled  to  honorable-discharge 
gratuity  immediately  upon  reenlistment  or 
upon  completion  of  four  years  from  the  date  of 
their  last  previous  enlistment  in  the  Navy. 
(26  Comp.  Dec,  565.) 

An  enlisted  man  of  the  Navy  who  enrolls  in 
the  Naval  Auxiliary  Reserve  within  four  months 
from  date  of  honorable  discharge  from  the 
Regular  Navy  is  not  entitled  to  honorable- 
discharge  gratuity  upon  reenlistment  in  the 
Navy  \\'ithin  four  months  from  date  of  dis- 
charge from  the  Naval  Auxiliary  Reserve.  (27 
Comp.  Dec,  8.) 

It  has  repeatedly  been  held  by  the  comp- 
troller that,  except  for  enrolled  members  of  the 
Fleet  Naval  Reserve  who  reenlist  in  the  Reg- 
ular Navy,  no  right  to  honorable-discharge 
gratuity  can  accrue  to  a  former  member  of  any 
class  of  the  Naval  Reserve  Force  except  where 
the  reenlistment  takes  place  within  four  months 
from  the  date  of  last  discharge,  at  expiration 
of  enlistment,  from  the  Regular  Navy.  (27 
Comp.  Dec,  8.) 

Retired  enlisted  men. — An  enlisted  man 
of  the  Navy,  holding  the  rating  of  mate,  who  is 
placed  on  the  retired  list  without  ha\T.ng  copi- 
pleted  the  term  of  his  final  enlistment,  and 
who  thereafter  is  called  into  active  ser\'ice, 
does  not,  after  a  period  of  active  service  equal 
to  the  unexpired  portion  of  his  last  enlistment, 
become  entitled  to  the  continuous-ser\ice 
increase  of  pay  or  the  honorable-discharge 
gratuity.     (24  Comp.  Dec,  152.) 

By  act  of  July  1,  1918  (40  Stat.,  719),  it  was 
provided  that  a  retired  enlisted  man  recalled 
into  active  service  shall  be  eligible  for  promo- 
tion and  ' '  shall  be  entitled  to  the  pay  and  bene- 
fits of  continuous  service  of  such  rank  and  for 
such  length  of  time  as  he  is  or  has  been  em- 
ployed in  active  ser\dce,  and  when  relieved  of 
active  service  shall  retain  upon  the  retired 
list  the  rank  and  service  held  by  him  at  the  time 
of  such  relief,  ^vith  the  pay  and  allowances  of 
such  rank  on  the  retired  list."  Held,  that  as 
continuous-service  pay  includes  in  its  broadest 
sense  any  pay  or  gratuity  dependent  upon 
continuity  of  ser\ice,  retired  enhsted  men  of 
the  Navy  who  are  recalled  to  active  service 
and  who  complete  a  jjeriod  of  service  equal  to 
the  unexpired  term  of  their  enlistment  are 
entitled,  when  otherwise  qualified,  to  contin- 
uous-service pay  proper,  honorable-discharge 
gratuity,  and  pay  under  General  Order  No.  34 
of  1906  (noted  under  sec.  1569,  R.  S.),  by 
wtue  of  said  act  of  July  1,  1918.  (25  Comp. 
Dec,  440;  compare,  26  Comp.  Dec,  565, 
noted  above,  under  "Naval  reser\dsts. ") 

Men  furloughed  without  pay. — An  en- 
listed man  furloughed  without  pay  in  accord- 
ance ^vith  the  act  of  August  29,  1916  (39  Stat., 
580),  resumes  in  all  respects  his  former  status 
upon  being  recalled  to  active  ser\-ice,  and  upon 
discharge  at  the  completion  of  the  unexpired 
portion  of  his  enlistment  is  entitled  to  travel 
allowance,  and  upon  reenlistment  to  the 
honorable-discharge  gratuity,  if  otherwise 
authorized.     (25  Comp.  Dec,  231.) 


890 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1575. 


An  enlisted  man  furloughed  -without  pay,  and 
who  was  not  given  a  discharge  at  the  expiration 
of  his  enlistment,  hfld,  not  entitled  to  con- 
tinuous-service pay  upon  reenlistment.  (25 
Comp.  Dec,  328.) 

Mates. — Mates  of  the  Na\'y  are  petty  offi- 
cers, and  their  pay  being  specially  fixed  by 
section  1556  of  the  Revised  Statutes,  and  any 
additional  pay  or  allowances  being  prohibited 
by  section  1558,  Re\'ised  Statutes,  they  are  not 
entitled,  upon  reenlistment  in  the  rating  of 
mate,  to  the  §1.36  increase  of  pay  per  month 
proA'ided  therein  for  enlisted  men  who  reenlist 
within  the  pro\isions  of  section  1573,  Re\'ised 
Statutes,  as  amended  by  the  act  of  March  3, 
1899.  But  such  mates  on  reenlistment  are 
entitled  to  the  honorable-discharge  gratuity 
provided  by  the  same  law  if  they  reenlist 
within  four  months  from  the  date  of  discharge. 
(14  Comp.  Dec,  457.) 

An  enlisted  man  of  the  Navy  who  was 
appointed  as  mate  and  continued  to  sen^e  as 
such  after  the  expiration  of  his  term  of  enlist- 
ment, without  recei\ing  a  discharge,  held,  still 
in  the  service  and  entitled  to  his  discharge; 
and  upon  reenlisting  after  such  discharge  he  is 
entitled  to  the  benefits  of  continuous-ser\dce 
pay  under  article  839,  Navy  Regulations,  1905. 
(26  Op.  Atty.  Gen.,  319;  but  see,  14  Comp.  Dec, 
457,  and  24  Comp.  Dec,  152.) 


The  base  pay  of  mates  fixed  by  section  6  of 
the  act  of  May  18,  1920  (41  Stat.,  602),  at  $126 
per  month,  is  not  to  be  increased  by  25  per  cent 
thereof,  the  pro\ision  in  the  act  of  May  13,  1908 
(35  Stat.,  128),  for  a  25  per  cent  increase  in  the 
base  pay  of  mates  in  the  Navy,  in  effect  ha\T.ng 
been  repealed  and  superseded  by  the  act  of 
May  18,  1920;  nor  does  the  act  of  May  18,  1920, 
operate  to  grant  to  mates  in  the  Navy  the  right 
to  permanent  additions  to  their  base  pay  that 
are  authorized  for  enlisted  men  of  the  Navy 
generally,  under  General  Order  No.  34  of  1906 
(noted  under  sec  1569,  R.  S.),  or  for  continuous 
8er\T.ce,  under  section  1573,  Re\dsed  Statutes, 
as  amended,  or  for  good-conduct  medals. 
(27Comp.  Dec,175.) 

Naval  Academy  Band. — Under  the  act  of 
April  12,  1910  (36  Stat.,  297),  providing  for  the 
enlistment  of  Naval  Academy  bandsmen  and 
gi\T.ng  them  '"the  same  benefits  in  respect  to 
pay,  emoluments,  and  retirement  arising  from 
longe\dty,  reenlistment,  and  length  of  service 
as  are  or  may  hereafter  become  applicable  to 
other  enlisted  men  of  the  Na\y,"  such  bands- 
men, upon  enlistment,  are  entitled  to  be 
credited  with  all  ser\dce  as  members  of  said 
band  in  computing  continuous-service  pay, 
such  computation  to  be  made  as  if  actually 
enlisted  and  discharged  as  provided  by  law  in 
effect  when  such  service  was  rendered.  (17 
Comp. 


Dec,  27.) 


Sec.  1574.  [Crews  of  wrecked  or  lost  vessels.]  When  the  crew  of  any  vessel 
of  the  United  States  are  separated  from  such  vessel,  by  means  of  her  wreck,  loss, 
or  destruction,  the  pay  and  emoluments  of  such  of  the  officers  and  men  as 
shall  appear  to  the  Secretary  of  the  Navy,  by  the  sentence  of  a  court-martial 
or  court  of  inquiry,  or  by  other  satisfactory  evidence,  to  have  done  theh  utmost 
to  preserve  her,  and,  after  said  ^vreck,  loss,  or  destruction,  to  have  behaved 
themselves  agreeably  to  the  discipline  of  the  Navy,  shall  go  on  and  be  paid  them 
until  then-  discharge  or  death.— (17  July,  1862,  c.  204,  s.  14,  v.  12,  pp.  608,  609.) 


See  sections  286-290,  Revised  Statutes,  and 
notes  thereto. 

The  act  of  June  4,  1920  (41  Stat.,  824),  niakes 
provision  for  compensation  to  be  paid  to 
the  widow,  and  if  no  vvidow  to  the  child  or 
children,  and  if  no  widow  or  child  to  any 
other  dependent  relative,  previously  des- 
ignated, of  any  officer,  enlisted  man,  or 
nurse  on  the  active  list,  in  case  of  the  lat- 
ter's  death  from  wounds  or  disease,  not  the 
result  of  the  decedent's  misconduct;  the 
amount  of  such  compensation  to  equal  six 
months'  pay  at  the  rate  received  by  the 
decedent  at  the  time  of  his  or  her  death. 

The  war  risk  insurance  act  of  October  6,  1917, 
Article  III  (40  Stat.,  405),  as  amended  by 
act  of  June  25,  1918  (40  Stat.,  609),  and  act 


of  December  24,  1919  (41  Stat.,  371),  makes 
provision  for  compensation,  in  lieu  of  pen- 
sion, to  be  paid  to  the  family  of  any  person 
in  the  naval  service  who  is  disabled  or  dies 
as  the  result  of  injury  or  disease  suffered  in 
line  of  duty  and  not  caused  by  his  own  v\ill- 
ful  misconduct. 

Subsistence  of  o£S.cers  separated  from 
their  vessel. — The  provision  in  the  act  of 
March  3,  1897  (29  Stat.,  657),  making  appro- 
priation for  subsistence  of  officers  temporarily 
absent  from  their  vessel,  does  not  apply  to 
officers  separated  from  their  v'essel  by  reason  of 
its  loss  or  destruction  wliile  they  are  in  receipt 
of  their  sea  pay  and  allowances  under  section 
1574,  Revised  Statutes.     (5  Comp.  Dec,  221.) 


Sec.  1575.  [Crews  of  vessels  taken  by  an  enemy.]  The  pay  and  emoluments 
of  the  officers  and  men  of  any  vessel  of  the  United  States  taken  by  an  enemy 
who  shall  appear,  by  the  sentence  of  a  court-martial  or  otherwise,  to  have  done 
their  utmost  to  preserve  and  defend  their  vessel,  and,  after  the  taking  thereof,  to 
have  behaved  themselves  agreeably  to  the  discipline  of  the  Navy,  shall  go  on 
and  be  paid  to  them  until  their  exchange,  discharge,  or  death. —  (17  July,  1862, 
c.  204,  s.  15,  V.  12,  p.  609.) 

54&41°— 22 57  891 


Sec.  1676. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


"Enemy"  defined. — The  first  statute  pro- 
vidini:,  in  terms,  for  our  naval  disci|)line  is  the 
"act  for  the  govenunent  of  the  Na\v  of  the 
United  Stutes,"  of  iMarch  2,  1799  (1  Stat.,  709). 
The  fourth  section  of  that  act  (1  Stat.,  714) 
pro\-ided  that  "all  the  pay  and  wages  of  such 
officers  and  seamen  of  any  of  the  ships  of  the 
United  States  as  are  taken  by  the  enemy,  and, 
upon  inquiry  at  a  court-martial,  shall  ai)pear 
by  the  sentence  of  the  said  court  to  have  done 
their  utmost  to  defend  the  ship  or  ships,  and 
since  the  taking  thereof,  to  have  behaved 
themselves  obediently  to  their  superior  officers, 
according  to  the  discipline  of  the  Navy,  and  the 
said  articles  and  orders,  hereinbefore  estab- 
lished, shall  continue  and  go  on  as  aforesaid," 
etc.  The  act  of  April  23,  1800,  enacts  (sec.  4, 
2  Stat.,  45),  '  'that  all  the  pay  and  emoluments 
of  such  officers  and  men  of  any  of  the  ships  or 
vessels  of  the  United  States  taken  by  an  enemy, 
*  *  *  shall  go  on,  and  be  paid  them  until 
their  death,  exchange,  or  discharge."  The  act 
of  1799  is  almost  identical  with  that  of  1800.  In 
the  former  the  phrase  stands,  "the  enemy;" 
in  the  latter  it  is  changed  to  "an  enemy." 
The  construction  of  the  act  of  1799  might  be 
doubtful,  for  there  is  a  certain  and  definitive 
meaning  in  the  phrase  "the  enemy. "  It  is  a 
familiar  phrase  and  means  the  public  enemy, 
the  acknowledged  enemy,  the  enemy  of  the 
nation,  the  enemy  with  whom  we  are  already 
at  war.  But  when  Congress,  in  1800,  changed 
the  phraseology,  and  for  this  definitive  and 
restricted  phrase  adopted  one  so  general  and 
comprehensive  as  to  include  any  and  every 
enemy,  they  must  have  done  so  for  some  legis- 
lative purpose.  That  purpose  appears  to  have 
been  to  provide  for  engagements  -ftith  pirates, 
then  common  in  American  seas,  and  to  pro\dde 
for  just  such  cases  as  the  encounter  between 
the  Chesapeake  and  the  British  ship  Leopard. 
(Straughan  v.  U.  S.,  1  Ct.  Cls.,  324.) 

John  Straughan,  a  citizen  of  the  United 
States,  enlisted  as  a  seaman  on  board  the 
United  States  frigate  Chesapeake  for  one  year; 
the  Chesapeake  in  time  of  peace  was  attacked 
and  taken  possession  of  by  the  British  ship 
Leopard;  Straughan,  with  other  seamen,  was 
forcibly  carried  off  by  the  Leopard  on  the  pre- 
text that  they  were  deserters;  after  ^ve  years 
they  were  released  and  returned  to  the  Chesa- 
peake; Straughan  did  duty  for  a  short  time  and 
was  discharged;  he  received  no  pay  for  the 
period  that  he  was  held  by  the  British  Govern- 
ment. His  widow  brought  action  in  the  Court 
of  Claims  to  recover  pay  for  said  period .     Held, 


that  the  Leopard,  in  her  attack  upon  the  Chesa- 
peake, was  "an  enemy' '  within  the  meaning  of 
the  fourth  section  of  the  act  of  April  23,  1800 
(2  Stat.,  45).  That  act  enlarges  the  act  of 
March  2,  1799  (1  Stat.,  709),  and  the  third  and 
fourth  sections  thereof  are  intended  to  include 
all  cases  where  persons  in  the  naval  service 
are  "separated  from  their  vessels"  by  either 
wreck  or  capture.  (Straughan  v.  U.  S.,  1  Ct. 
Cls.,  324.  Note:  The  third  section  of  the  act 
of  April  23, 1800,  and  the  third  section  of  the  act 
of  March  2,  1799,  were  both  similar  to  the  pro- 
visions of  section  1574,  Revised  Statutes,  while 
the  foiu'th  sections  of  those  acts  were  similar 
to  the  proAdsions  of  section  1575,  Re^ised 
Statutes.) 

An  act  of  hostility  by  a  national  ship  of  war 
is  an  act  of  war.  The  officer  who  directs  it  is 
not  liable  to  the  injured  parties,  but  to  his  own 
Government.  The  rule  that  a  principal  is  not 
responsible  for  the  tortious  acts  of  his  agent 
forms  no  part  of  the  law  of  nations;  and  a  Gov- 
ernment can  not  relieve  itself  of  responsibility 
by  disavowing  the  act  of  its  officer.  (Straughan 
V.  U.  S.,  1  Ct.  Cls.,  324.) 

Pay  continues  after  expiration  of  enlist- 
ment.— An  enlisted  man  of  the  Navy  captured 
and  separated  from  his  ^-essel  in  consequence 
of  an  attack  by  a  British  vessel  in  1807,  and 
held  by  the  British  Government  for  a  period  of 
five  years,  when  he  was  released  and  returned 
to  his  vessel,  held,  entitled  to  be  paid  his  wages 
by  the  United  States  for  the  total  period  of  five 
years,  although  the  enlistment  in  which  he  was 
serving  at  the  time  of  his  capture  was  for  a 
period  of  only  one  year.  (Straughan  v.  U.  S., 
1  Ct.  Cls.,  324.) 

Officer  interned  in  neutral  country. — 
An  officer  of  the  Navy  interned  in  a  neutral 
country,  if  recjuired  to  hire  quarters  there  for 
himself,  is  entitled  to  commutation  thereof  as 
"emoluments"  that  "shall  go  on  and  be  paid" 
as  provided  by  sections  1574  and  1575,  RoAised 
Statutes.  If  quarters  have  not  been  so  ac- 
quired, he  is  not  entitled  to  commutation. 
(25  Comp.Dec.,303.) 

An  officer  of  the  Nax-y  who  without  fault  on 
his  part  is  interned  by  a  neutral  nation  is  on 
active  duty  within  the  meaning  of  the  act  of 
April  16,  1918  (40  Stat.,  530),  and  is  entitled 
under  said  act  to  commutation  of  quarters, 
heat,  and  light,  on  account  of  maintaining  de- 
pendents for  the  period  of  his  internment. 
(25  Comp.Dec.,303.) 


Sec.  1576.    [Assignment   of   wages.]     Every   assignment    of    wages    due    to 

persons  enlisted  in  the  naval  service,   and  all  powers  of  attorney,  or  other 

authority  to  draw,  receipt  for,  or  transfer  the  same,  shall  be  void,  unless  attested 

by  the  commanding  officer  and  paymaster.     The  assignment  of  wages  must 

specify  the  precise  time  when  they  commence. —  (30  June,  1864,  c.  174,  s.  12, 

V.  13,  p.  310.) 

See  section  1430,  Re\dsed  Statutes,  and  note  [       Effect  of  section.— The  assignment  of  any 

thereto;  see  also  sections  3477  and    3620,  claim  against  the  United  States  is  prohibited 

Revised  Statutes;  and  see  note  to  section  !    by  section  3477  of  the  Revised  Statutes.    This 

1556,   Re\dsed    Statutes,    under    "Allot-  prohibition  is  held  to  include  the  assignment 

mentsof  pay."  of  pay.    The  assignment  of  wages  by  enlisted 


892 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1578. 


men  of  the  Navy  is  taken  out  of  the  prohibition 
of  section  3477  by  section  1576  of  the  Revised 
Statutes.     (17  Comp.  Dec,  666.) 

Assignment  to  attorney. — Where  an 
enUsted  man  of  the  Navy  employed  an  attorney 
to  defend  him  on  a  criminal  charge  before  civil 
authorities,  and  in  compensation  therefor  gave 


said  attorney  an  order  on  the  commanding 
officer  of  the  vessel  on  which  he  served  for  a 
portion  of  the  pay  due  him,  such  contract  is  a 
personal  one,  not  operating  to  create  a  liability 
on  the  part  of  the  Government,  and  payment 
of  the  amount  is  not  authorized.  (25  Comp. 
Dec,  99.) 


1577.  [Rations  of  midshipmen.     Superseded.] 


This  section  provided  as  follows: 

"Sec.  1577.  Midshipmen  and  acting  mid- 
shipmen in  the  Navy  shall  be  entitled  to  one 
ration,  or  to  commutation  therefor. " — (28  July, 
1866,  c.  296,  s.  8,  v.  14,  p.  322.  28  Feb.,  1867, 
c.  100,  s.  2,  V.  14,  p.  416.— Philbrook's  Case, 
8  C.  Cls.,  523.) 

It  was  superseded  by  the  act  of  March  3, 
1883  (22  Stat.,  472),  which  abolished  the  grade 
of  midshipman,  which  was  then,  under  section 
1362,  Re\'ised  Statutes,  the  eleventh  grade  of 
Line  officers  of  the  active  list  of  the  Navy,  a,nd 
provided  that  midshipmen  then  on  the  active 
list  should  "constitute  a  junior  grade  of,  and 
be  commissioned  as,  ensigns.  '  The  grade  of 
junior  ensign  thus  created  was  abolished  by 
act  of  June  26,  1884,  section  2  (23  Stat.,  60; 
see  notes  to  sees.  1362  and  1512,  R.  S.). 

Students  at  Naval  Academy. — Under  the 
Revised  Statutes,  section  1512,  students  at  the 
Naval  Academy  were  designated  as  "cadet 
midshipmen,  "  with  the  exception  of  a  special 
class,  styled  "cadet  engineers, "  under  sections 
1522-1524,  Revised  Statutes.  By  act  of  August 
5,  1882  (22  Stat.,  285),  the  title  of  all  under- 
graduates at  the  Naval  Academy  was  changed  to 
"naval  cadets, "  which  was  the  title  of  students 
at  the  Naval  Academy  when  the  grade  of  mid- 
shipman was  abolished  by  act  of  March  3, 1883, 
above  quoted . 

By  act  of  January  30,  1885  (23  Stat.,  291),  it 


was  provided  that  "all  enlisted  men  and  boys 
in  the  Navy,  attached  .to  any  United  States 
vessel  or  station  and  doing  duty  thereon,  and 
naval  cadets,  shall  be  allowed  a  ration,  or  com- 
mutation thereof  in  money,  under  such  limita- 
tions and  regulations  as  the  Secretary  of  the 
Navy  may  prescribe. "  This  act  in  so  far  as  it 
applied  to  "naval  cadets,"  was  amended  by 
act  of  July  1, 1902  (32  Stat.,  686),  which  changed 
the  title  "naval  cadet"  to  "midshipman," 
which  has  ever  since  continued  to  be  the  title 
of  students  at  the  Naval  Academy. 

Rations  of  midshipmen  are  now  authorized 
by  the  act  of  January  30,  1885,  as  amended  by 
theactof  Julv  1, 1902,  both  above  quoted.  (By 
jointres.  No."],  Dec.  17, 1903,  33 Stat., 581, refer- 
ence was  made  to  sec.  1577,  R.  S.,  as  the  au- 
thority for  allowing  commuted  rations  to  mid- 
shipmen.) 

"Midshipmen  are  entitled  to  one  ration,  or 
to  commutation  therefor,  at  all  times. "  (Art. 
4517,  par.  1,  Navy  Regs.,  1913;  26  Comp.  Dec, 
42.) 

Rations  of  other  officers  are  provided  for 
by  sections  1578  and  1579,  Re^'ised  Statutes. 

Commutation  price  of  rations  is  fixed  by 
section  1585,  Re\'ised  Statutes,  and  amend- 
ments thereto.  The  naval  appropriation  act 
of  June  4,  1920  (41  Stat.,  825),  made  appropria- 
tion for  "commuted  rations  for  *  *  * 
midshipmen  at  $1.08  per  diem." 


Sec.  1578.  [Rations  of  other  oflacers.]  All  officers  shall  be  entitled  to  one 
ration,  or  to  commutation  therefor,  while  at  sea  or  attached  to  a  sea-going 
vessel.— (3  Mar.,  1851,  c.  34,  s.  1,  v.  9,  p.  621.  16  July,  1862,  c.  183,  s.  19, 
V.  12,  p.  587). 


Rations  of  enlisted  men:  See  act  of  January  30, 
1885  (23  Stat.,  291),  noted  under  section 
1579,  Revised  Statutes. 

Section  1578  repealed  in  part. — Section 
1578,  Revised  Statutes,  is  repealed  by  section 
13  of  the  Navy  personnel  act,  providing  that 
commissioned  officers  of  the  line  of  the  Navy 
and  of  the  Medical  and  Pay  Corps  shall  receive 
the  same  pay  and  allowances,  except  forage,  as 
are  or  may  be  provided  by  or  in  pursuance  of 
law  for  the  officers  of  corresponding  rank  in 
the  Army.  The  latter  law  was  intended  to 
cover,  and  in  exact  terms  provides  for,  all  pay 
and  allowances  for  naval  officers,  except  forage. 
The  later  act  was  intended  as  a  substitute  for 
the  earlier  provisions  contained  in  section  1578. 
(Gibson  v.  U.  S.,  194  U.  S.,  182.) 

While  section  13  of  the  Navy  personnel  act 
of  March  3,  1899  (30  Stat.,  1004),  provided  that 
officers  of  the  line  of  the  Navy  and  of  the  Medi- 
cal and  Pay  Corps  should  not  be  reduced  in  pay 
by  virtue  of  said  act,  there  is  no  provision 
retaining  the  allowances  of  the  former  law. 
Morever,  section  26  of  the  Navy  personnel  act 


pro\ddes  that  all  acts  and  parts  of  acts,  so  far  as 
they  conflict  with  its  provdsions,  shall  be 
repealed.  The  allowance  of  the  preceding 
statute  (sec.  1578,  R.  S.)  can  not  stand  con- 
sistently with  the  express  pro-vision  upon  the 
same  subject  of  the  later  act.  (Gibson  v.  U.  S., 
194  U.  S.,  182.) 

In  Gibson  v.  United  States  (194  U.  S.,  182) 
it  was  held  that  the  personnel  act  did  repeal 
sections  1578  and  1585,  Revised  Statutes, 
allowing  sea  rations,  because  the  later  act 
covered  the  same  subject  matter  and  superseded 
the  provisions  of  those  sections.  (U.  S.  v. 
Thomas,  195  U.  S.,  418,  426.) 

Prior  to  the  passage  of  the  act  of  March  3, 
1899,  officers  of  the  Navy  were  entitled  to  rations 
or  commutation  thereof  imder  sections  1578- 
1579,  Revised  Statutes.  By  the  Navy  person- 
nel act  of  that  date,  the  pay  and  allowances  of 
the  line.  Medical,  and  Pay  ( 'orps  were  assimila- 
ted to  those  of  officers  of  corresponding  rank  in 
the  Army,  and  the  pay  and  allowances  of  com- 
missioned warrant  officers,  created  by  that  act, 
were  assimilated  to  the  pay  and  allowances  then 


893 


Sec.  1578. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


allowed  a  second  lieutenant  in  the  Marine  Corps. 
Aa  the  allowance  of  a  ration  was  not  an  allowance 
to  which  olhcers  of  the  Army  and  Marine  Corps 
were  entitled,  the  said  officers  of  the  Navy 
whose  ])ay  and  allowances  were  so  assimilated 
were  not  entitled  thci^eto  after  the  passage  of  the 
act  of  March  3,  18!)!);  but  the  right  of  other 
officers  of  the  Navy  to  said  allowance  was  not 
affected  thereby.     (15  Comp.  Dec,  8.) 

The  act  of  June  29,  1906  (34  Stat.,  554), 
assimilating  the  pay  and  allowances  of  chaplains 
in  the  Navy  to  those  of  line  officers  of  the  Navy, 
prevents  the  allowance  of  rations  to  chaplains 
after  the  approval  of  said  act.  (15  Comp.  Dec, 
651.) 

Following  the  enactment  of  the  Na\'y  person- 
nel act  of  March  3,  1899,  the  appropriation  acts 
for  the  Navy  have  since  provided  for  commuted 
rations  for  officers  on  sea  duty,  other  than  com- 
missioned officers  of  the  line,  Medical  and  Pay 
Corps,  and  chief  warrant  officers.  (26  Comp. 
Dec,  42.) 

By  the  naval  appropriation  act  of  June  4, 
1920  (41  Stat.,  825),  appropriation  is  made  for 
"commuted  rations  for  officers  on  sea  duty 
(other  than  commissioned  officers  of  the  line, 
Medical  and  Supply  Corps,  chaplains,  chief 
boatswains,  chief  gunners,  chief  carpenters, 
chief  machinists,  chief  pay  clerks,  and  chief 
sailmakers)  at  68  cents  per  diem,  and  midship- 
men at  §1.08  per  diem    *    *    *     ." 

The  law  on  this  subject  was  incorporatedin 
article  4517  (1),  Navy  Regulations,  1913, 
which  pro\ddes:  "With  the  exception  of  com- 
missioned officers  of  the  line,  Medical  Corps, 
and  Pay  Corps,  and  of  chaplains  and  commis- 
sioned warrant  officers,  all  officers  of  the  Navy 
are  entitled  to  one  ration  or  to  commutation 
therefor  at  the  rate  of  thirty  cents  a  day  while 
doing  duty  on  board  a  seagoing  vessel  of  the 
Navy.  Midshipmen  are  entitled  to  one  ration, 
or  to  commutation  therefor,  at  all  times." 
(26  Comp.  Dec,  42.) 

The  officers  of  the  Navy  who  were  entitled  to 
receive  a  ration  prior  to  the  passage  of  the  act  of 
May  13,  1908  (35  Stat.,  127),  are  still  entitled  to 
that  allowance  under  the  provision  of  said  act 
prohibiting  the  reduction  of  pay  or  allowances, 
and  also  by  the  express  terms  of  the  appropria- 
tion, "Provisions,  Navy,"  which  specifically 
excludes  from  its  application  the  said  officers 
who  were  not  entitled  to  rations  under  the 
Navy  personnel  act.     (15  Comp.  Dec,  8.) 

Under  the  act  of  May  13,  1908,  all  officers  of 
the  Navy,  other  than  the  commissioned  officers 
of  the  line,  M-edical  and  Pay  Corps,  and  com- 
missioned warrant  officers,  are  entitled  to  ra- 
tions or  commutation  therefor  while  on  sea 
duty.  (15  Comp.  Dec,  8;  modified,  as  to 
chaplains,  by  15  Comp.  Dec,  651,  noted  above.) 

The  act  of  May  13,  1908  (35  Stat.,  127),  except 
as  stated  in  the  saving  clause  thereof,  repealed 
sections  1578  and  1579,  Re\dsed  Statutes,  so  far 
as  said  sections  applied  to  commissioned 
officers.     (25  Comp.  Dec,  125.) 

The  act  of  May  13,  1908  (35  Stat.,  127),  pro- 
vided that  all  commissioned  officers  of  the 
Navy  shall  receive  the  same  allowances,  ac- 
cording to  rank  and  length  of  service.  The 
effect  of  this  pro\ision  was  either  to  confer  the 
right  to  rations  upon  commissioned  officers  not 
already  receiving  same  or  to  take  away  the  right 


to  rations  from  commissioned  officers  of  the 
class  entitled  to  receive  same  under  section 
1578,  Revised  Statutes,  because  their  allow- 
ances had  not  been  assimilated  to  those  of  the 
Army  by  the  Navy  personnel  act  of  March  3, 
1899.     (25  Comp.  Dec,  125.) 

In  15  Comp.  Dec,  8,  it  was  held  that  officers 
of  the  Navy  who  were  entitled  to  rations  while 
on  sea  duty  prior  to  the  passage  of  the  act  of 
May  13,  1908,  were  still  entitled  thereto  be- 
cause of  the  pro\ision  in  said  act  prohibiting  a 
reduction  in  pay  and  allowances.  However, 
it  is  now  held,  that  a  naval  constructor  ap- 
pointed to  office  since  the  act  of  May  13,  1908, 
is  not  vvithin  the  saving  clause  therein  prohibit- 
ing reduction  of  pay  and  allowances,  and  ac- 
cordingly is  not  entitled  to  commutation  of  ra- 
tions while  on  sea  duty.     (25  Comp.  Dec,  125.) 

Under  the  act  of  June  30,  1914  (38  Stat., 
403),  which  created  the  grade  of  acting  chap- 
lain, and  provided  that  '  'while  so  serving 
acting  chaplains  shall  have  the  rank,  pay, 
and  allowances  of  lieutenant,  junior  gi'ade,  in 
the  Navy,"  held,  that  acting  chaplains  are  not 
entitled  to  rations  or  commutation  thereof, 
because  lieutenants,  junior  grade,  are  not 
entitled  thereto.  (File  26254-2333,  July  23, 
1917.) 

Cominissioned  warrant  officers. — Neither 
the  Navy  personnel  act  of  March  3,  1899  (30 
Stat.,  1004),  which  created  the  grade  of  chief 
gunner,  nor  any  other  law,  authorizes  rations  or 
commutation  thereof  to  chief  gunners  of  the 
Navy.  (15  Comp.  Dec,  874;  see  note  to  sec 
1556,  R.  S.,  as  to  pay  and  allowances  of  commis- 
sioned warrant  officers.) 

Marine  officers. — An  officer  in  the  Marine 
Corps  attached  to  a  seagoing  vessel  is  not 
entitled  to  the  ration  allowed  by  section  1578, 
Revised  Statutes,  to  a  naval  officer  so  attached. 
(Reid  V.  U.  S.,  18  Ct.  Cls.,  625.) 

Warrant  officers. — A  warrant  officer  while 
on  duty  at  sea,  or  attached  to  a  seagoing  vessel, 
is  entitled  to  rations  in  kind  or  to  commutation 
therefor;  whichever  he  accepts  precludes  him 
from  receipt  of  the  other.     (26  Comp.  Dec,  42.) 

A  paymaster's  clerk  of  the  Navy  who, 
while  en  route  to  his  place  of  ser\'ice  on  the 
Island  of  Guam,  performed  temporary  duty  on 
the  steamer  Supply,  is  not  entitled  to  reim- 
bursement of  traveling  expenses;  but  under 
section  1578,  Revised  Statutes,  he  is  entitled  to 
a  ration  or  commutation  thereof.  Under  the 
orders  issued  to  him  he  was  temporarily  attached 
to  a  seagoing  vessel  and  doing  duty  thereon. 
If  he  did  not  receive  rations  in  kind,  he  is  en- 
titled to  commutation  of  rations  for  the  period 
while  on  said  duty.     (10  Comp.  Dec,  107.) 

Checkage  of  difference  between  actual 
cost  and  commuted  value  of  rations. — A 
warrant  officer  of  the  Navy  who  has  been  sub- 
sisted in  the  general  mess  is  not  entitled  to 
commuted  rations,  nor  is  he  liable  for  the  dif- 
ference between  the  monetary  value  of  the 
ration  in  kind  and  the  value  of  a  commuted 
ration.  (26  Comp.  Dec,  42,  distinguishing 
Comp.  Dec,  Feb.  18,  1910,  noted  below.) 

The  accounts  of  officers  subsisted  by  the  gen- 
eral mess  of  a  vessel  while  serving  temporarily 
on  shore  should  be  checked  with  the  cost  of 
rations  issued,  as  shown  by  the  actual  issues 
during  the  period  covered  by  their  subsistence, 


894 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1579. 


and  not  with  the  commutation  value  of  the  ra- 
tion as  fixed  by  section  1585,  Revised  Statutes. 
(Comp.  Dec,  P'eb.  18,  1910,  108  S.  and  A. 
Memo.,  1335,  52  MS.  Comp.  Dec,  857.  Note: 
This  case  is  distinguished  from  that  considered 
in  2t)  Comp.  Dec,  42,  noted  above,  in  that  the 


officers  referred  to  in  this  decision  were  not 
entitled  to  either  a  ration  in  kind  or  to  commu- 
tation in  lieu  thereof.  See  26  Comp.  Dec,  42.) 
For  other  cases,  see  note  to  section  1579, 
Re\i8ed  Statutes. 


Sec.  1679.  [When  rations  not  allowed.]  Xo  person  not  actually  attached 
to  and  doing  duty  on  board  a  sea-going  vessel,  except  the  petty  officers,  seamen, 
and  ordinary  seamen  attached  to  receiving-ships  or  to  the  ordinary  of  a  navy- 
yard,  and  midshipmen,  shall  be  allowed  a  ration. —  (3  Mar.,  1851,  c.  34,  s.  1, 
v.  9,  p.  621.  28  July,  1866,  c.  296,  s.  8,  v.  14,  p.  322.  28  Feb.,  1867,  c.  100,  s. 
2,  V.  14,  p.  416.) 


See  notes  to  sections  1578  and  1579,  Revised 
Statutes,  and  see   section  1595,    Re\dsed 
Statutes,  as  to  retired  officers. 
This  section  was  amended  by  act  of  January 
30,  1885  (23  Stat.,  291),  which  proAided 
"that  all  enlisted  men  and  boys  in  the 
Na\y  attached  to  any  United  States  vessel 
or  station  and  doing  duty  thereon,  and 
naval  cadets,  shall  be  allowed  a  ration,  or 
commutation    thereof   in    money,    under 
such  limitations  and   regulations  as  the 
Secretary  of  the  Na\y  may  prescribe. " 
Enlisted     men. — Section     1577,      ReAised 
Statutes,  pro\ides  that  midshipmen  shall  be 
entitled  to  one  ration,  and  section  1578  declares 
that  all  officers  shall  be  entitled  to  one  ration; 
iDut  there  is  no  affirmative  law  giAing  a  ration 
to  an  enlisted  man  of  the  Navy.     Section  1579 
impliedly  allows  the  ration  to  all  men  doing 
duty  on  seagoing  vessels  as  well  as  to  those 
within  the  exceptions  mentioned  in  the  sec- 
tion; and  this  section  is  referred  to  in  article 
1120  (4),  Na\y  Regulations,  1909,  as  author- 
izing rations.     (19  Comp.  Dec,  450;  but  see 
act  of  Jan.  30,  1885,  quoted  above  under  this 
section;  and  see  decisions  of  the  comptroller, 
noted  below.) 

The  benefits  of  section  1579,  Revised  Stat- 
utes, granting  rations  to  enlisted  men  in  the 
Na\'y,  were  extended  by  the  act  of  January 
30,  1885  (23  Stat.,  291).  These  statutory  pro- 
\dsions  limit  the  allowance  of  rations  to 
those  enlisted  men  attached  to  some  Gov- 
ernment vessel  or  station  and  doing  duty 
thereon,  and  to  petty  officers,  seamen,  and  or- 
dinary seamen  attached  to  recei\T.ng  ships 
or  to  the  ordinary  of  a  navy  yard.  (4  Comp. 
Dec,  690.) 

The  act  of  January  30,  1885  (23  Stat.,  291), 
extends  the  right  to  rations  or  to  commutation 
thereof  in  money  to  all  enlisted  men  and  boys 
in  the  Na\'y  "attached  to  any  United  States 
vessel  or  station  and  doing  duty  thereon. " 
(5  Comp.  Dec,  40.) 

Enlisted  men  in  the  Na\'y  are  given  rations 
or  commutation  therefor  in  money  by  \irtue 
of  section  1579,  Re\-ised  Statutes,  and  the  act 
of  January  30,  1885  (23  Stat.,  291).  Section 
1579  limits  the  right  to  rations  to  certain  speci- 
fied classes  of  persons  in  the  naval  service; 
the  act  of  January  30,  1885,  extends  the  right 
to  all  enlisted  men  and  boys  in  the  ser\-ice 
when  attached  to  a  United  States  vessel  or 
station  and  doing  duty  thereon.  (5  Comp. 
Dec,  177.) 


Yeomen  doing  duty  at  the  different  head- 
quarters of  the  Coast  Signal  Serxice  are  not 
attached  to  any  United  States  vessel  or  station 
and  doing  duty  thereon,  within  the  meaning 
of  the  act  of  January  20,  1885,  granting  rations 
to  certain  enlisted  men  and  boys  in  the  NaAy, 
and  they  are  not  entitled  to  rations  or  commuta- 
tion thereof.     (4  Comp.  Dec,  690.) 

On  reconsideration,  held,  that  the  different 
headquarters  of  the  Coast  Signal  Ser^dce 
where  enlisted  men  on  duty  are  armed  perform 
military  service,  and  are  subject  to  military 
discipline,  are  stations  within  the  meaning  of 
the  act  of  January  30,  1885,  and  yeomen  at- 
tached to  and  doing  duty  at  such  stations  are 
entitled  to  rations  or  commutation  thereof. 
(5  Comp.  Dec,  40.) 

The  naval  pro^^.ng  gi'ound  at  Indianhead, 
Md.,  is  not  a  station  within  the  meaning  of  the 
act  of  January  30,  1885,  which  provides  for 
rations  for  enlisted  men  in  the  Naxy  attached 
to  a  station,  and  enlisted  men  stationed  there 
are  not  entitled  to  rations  or  commutation 
thereof.     (5  Comp.  Dec,  177.) 

The  act  of  1885,  while  extending  the  right 
of  rations  to  those  who  before  were  not  entitled 
to  it,  did  not  remove  the  general  prohibition 
contained  in  section  1579,  except  in  the  cases 
pro\ided  for  in  that  act.  Taking  the  two  laws 
together,  it  appears  that  only  those  enlisted 
men  of  the  Na%'y  who  are  attached  to  some 
United  States  vessel  or  station  and  doing  duty 
thereon,  or  attached  to  the  ordinary  of  a  navy 
yard,  are  entitled  to  rations.  Had  Congress 
intended  that  all  enlisted  men  in  the  ser\ice 
should  have  the  benefit  of  a  daily  ration  or 
commutation  thereof  in  money,  there  would 
have  been  no  occasion  to  attach  the  conditions 
which  the  law  does  to  such  a  right.  (5  Comp. 
Dec,  177.) 

The  headquarters  of  the  Marine  Corps  at 
Washington,  D.  C,  a  place  where  armed  forces 
are  stationed  and  military  duties  and  discipline 
are  imposed,  is  a  station,  witliin  the  meaning  of 
the  act  of  January  30,  1885,  and  a  hospital 
steward  in  the  Navy  on  duty  there  is  entitled 
to  rations  or  to  commutation  thereof.  (5  Comp. 
Dec,  561.) 

The  recruiting  rendezvous  at  Chicago,  111., 
is  a  naval  station  within  the  meaning  of  the 
act  of  January  30,  1885  (Comp.  Dec,  Jan.  5, 
1901,  cited  in  7  Comp.  Dec,  408,  410.) 

Enlisted  men  of  the  Navy  are  given  rations 
or  commutation  thereof  by  \irtue  of  section 
1579,  Re\ised  Statutes,  and  the  act  of  Janu- 


895 


Sec.  1579. 


I't.  2.  REVllSED  STATUTES. 


The  Navy. 


ary  30,  1885.  Under  these  laws,  an  enlisted 
man  of  the  Na\y,  released  from  the  custody  of 
the  ciA-il  authorities  on  hail,  who  reported  at  his 
regular  station,  the  recei^'ing  ship  at  New  York, 
for  duty,  but  was  not  permitted  to  enter  on  duty 
or  to  remain  at  his  station,  solely  because  he 
was  on  bail,  is  entitled  to  commutation  of  ra- 
tions during  the  period  of  such  enforced  ab- 
sence from  iiis  regular  station.  If  he  had  been 
received  on  board  the  recei\'ing  ship  to  which 
he  was  attached  when  he  reportecf  there,  he 
would  be  entitled  to  rations  or  commutation 
thereof;  and  the  erroneous  action  of  the  officer 
in  refusing  to  receive  him  on  board  should  not 
deprive  him  of  his  right  to  which  he  would 
otherwise  be  entitled.     (22  Comp.  Dec,  589.) 

Subsistence  when  absent  from  vessel 
or  on  detached  duty. — The  naval  appropria- 
tion act  of  March  3,  1915,  under  the  head  of 
"Pro^^sio^s,  Naw,"  contained  the  following 
appropriation:  "For  *  *  *  subsistence  of 
officers  and  men  unavoidably  detained  or 
absent  from  vessels  to  which  attached  under 
orders  (during  which  subsistence  rations  to  be 
stopped  on  board  ship  and  no  credit  for  com- 
mutation therefor  to  be  given)  *  *  *." 
(38  Stat.,  943.)  A  similar  pro\ision  was  con- 
tained in  the  Naw  appropriation  act  of  July  19, 
1892  (27  Stat.,  243),  and  in  each  subsequent  act 
making  annual  appropriation  for  the  support  of 
the  Na\'y.  This  proAision  has  been  construed 
as  authorizing  the  payment  for  subsistence 
of  enlisted  men  while  on  duty  under  orders 
which  require  them  to  be  absent  from  the  vessel 
to  which  attached  or  on  detached  duty  under 
conditions  where  they  are  not  entitled  to  rations 
or  commutation  thereof.  (22  Comp.  Dec,  589, 
citing  10  Comp.  Dec,  593,  and  other  decisions.) 

Petty  officers  and  other  enlisted  men  who 
may  be  temporarily  absent  from  the  A'essels  to 
which  they  are  attached,  under  orders  and 
engaged  in  recruiting  service  for  the  time  being 
at  places  not  stations  mthin  the  purA-iew  of  the 
act  of  January  30,  1885  (quoted  above  under 
"Enlisted  men"),  may  be  subsisted  while  so 
temporarily  absent  and  the  expense  paid  from 
the  appropriation,  "Pro\isions,  Navy." 
Unless,  however,  they  are  attached  to  vessels 
under  orders  and  unavoidably  aljsent  therefrom, 
they  can  not  be  subsisted  at  the  expense  of  the 
Government  at  places  not  stations  within  the 
meaning  of  the  act  of  June  30,  1885.  (7  Comp. 
Dec,  408.) 

Under  the  act  of  July  1,  1902  (32  Stat.,  679), 
which  proAdded  for  the  subsistence  of  officers 
and  enlisted  men  of  the  Navy  unavoidably 
detained  or  absent  from  their  vessels,  a  petty 
officer  attached  to  a  vessel  at  the  Mare  Island 
Navy  Yard,  who  was  detailed  for  duty  at  the 
Union  Iron  Works  at  San  Francisco,  Calif.,  and 
thereby  deprived  of  quarters  and  rations  on 
board  ship,  was  entitled  while  so  detailed  to  an 
allowance  in  lieu  of  subsistence;  and  the  word 
"subsistence,"  as  used  in  said  act,  must  be 
construed  as  comprehending  both  board  and 
lodging.     (10  Comp.  Dec,  593.) 

.Vn  enlisted  man  who  is  granted  leave  from 
a  hospital  for  the  convenience  of  the  Govern- 
ment or  for  the  purpose  of  more  rapidly  recu- 
perating from  his  illness  is  in  the  status  of  an 
enlisted  man  on  detached  duty  and  should  be 
allowed  the  same  subsistence  as  authorized  for 


men  on  detached  duty.     (File  26254-2883:2, 
Oct.  30,  1919,  225  S.  and  A.  Memo.,  5026.) 

It  is  the  duty  of  the  Government  to  feed  and 
quarter  the  enlisted  men  at  all  times,  excej)t 
when  for  a  man's  own  pleasure  and  convenience 
he  absents  himself.     (26  Comp.  Dec,  47.) 

The  language  of  the  annual  appropriations  for 
"Pro\isions,  Navy,"  entitles  enlisted  men  of 
the  Navy  to  be  subsisted  at  the  expense  of  the 
United  States  when  "unav'oidably  detained  or 
absent  from  vessels  to  which  attached  under 
orders  (during  which  subsistence  rations  to  be 
stopped  on  board  ship  and  no  credit  for  com- 
mutation therefor  given)"  and  when  on  "de- 
tached duty."  This  subsistence,  it  has  been 
held,  may  be  paid  to  them  directly  in  the  form 
of  a  per  diem  allowance  in  lieu  of  the  payment 
of  actual  expense  thereof  in  each  instance  to  the 
person  supplving  it.  (Comp.  Dec,  Mar.  23, 
1917,  193  S.  and  A.  Memo.,  4198.) 

An  enlisted  man  of  the  Navj^  who  after  under- 
going treatment  at  a  naval  hospital  is  ordered  on 
sick  leave  of  absence  is  in  a  duty  status  and 
entitled  to  the  per  diem  allowance  for  subsist- 
ence for  such  period.     (26  Comp.  Dec,  47.) 

Where  a  man's  status  before  entering  a  hospi- 
tal and  upon  return  to  duty  at  the  Navy  Depart- 
ment at  the  expiration  of  sick  leave  of  absence 
was  that  of  an  enlisted  man  ' '  on  detached  duty 
from  vessel  or  shore  station,"  he  is  recognized 
as  ''on  duty"  while  on  such  sick  leave  of 
al)sence,  and  his  status  for  purposes  of  subsist- 
ence per  diem  was  not  changed  from  "on 
detached  duty"  by  being  ordered  to  take  sick 
leave.    (26  Comp.  Dec,  47.) 

The  provision  in  the  act  of  March  3,  1897  (29 
Stat.,  657),  for  subsistence  of  officers  temporarily 
absent  from  their  vessels,  does  not  apply  to 
officers  separated  from  their  vessel  by  reason  of 
its  loss  or  destruction,  while  they  are  in  receipt 
of  their  sea  pay  and  allowances  under  section 
1574,  Revised  Statutes.     (5  Comp.  Dec,  221.) 

Where  a  naval  officer  under  arrest  is  confined 
to  a  vessel,  the  mess  of  which  he  is  a  member  is 
entitled  to  reimbursement  of  his  share  of  the 
mess  expenses  incurred  on  account  of  subsist- 
ence.    (9  Comp.  Dec,  711.) 

Officers  of  the  Navy  on  sea  duty  who  are  not 
entitled  to  a  ration  or  commutation  thereof  are 
not  entitled  to  allowance  for  subsistence  when 
performing  temporary  duty  which  requires 
their  absence  from  the  ship  to  which  attached 
and  which  does  not  require  their  detachment 
from  the  ship  nor  affect  their  sea-duty  status. 
(Comp.  Dec,  Jan.  29,  1917,  191  S.  and  A. 
Memo.,  4145.) 

The  appropriation  "Provisions,  Navy,"  for 
"subsistence  of  officers  and  men  unavoidably 
detained  or  absent  from  vessels  to  which  at- 
tached under  orders  (during  which  subsistence 
rations  to  be  stopped  on  board  ship  and  no 
credit  for  commutation  therefor  to  be  given)," 
was  intended  to  authorize  the  payment  of  sub- 
sistence of  only  such  officers  of  a  ship  so  absent 
as  would  have  been  entitled  to  a  ration  or  com- 
mutation thereof  at  the  expense  of  the  Govern- 
ment had  they  not  been  thus  absent  from  their 
vessels.  Accordingly,  this  appropriation  has  no 
application  to  officers  who  would  not  have  been 
entitled  to  subsistence  ration  or  commutation 
therefor  had  they  in  fact  continued  on  ship- 


896 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1579. 


board.     (Comp.  Dec,  Jan.  29,  1917,  191.  S.  and 
A.  Memo.,  4145.) 

The  appropriation  under  "Pay,  miscel- 
laneous, ' '  for  ' '  actual  expenses  of  officers  -while 
on  shore  patrol  duty,"  and  for  "relief  of  vessels 
in  distress;  recovery  of  valuables  from  ship- 
■vrrecks,"  does  not  authorize  allowance  of  sub- 
sistence to  officers  on  shore  engaged  in  salvage 
operations  requiring  their  temporary  absence 
from  their  vessels;  nor  are  such  officers  entitled 
to  subsistence  allowance  from  the  appropriation 
for  "Contingent,  Navv."  (Comp.  Dec,  Jan. 
29,  1917,  19f  S.  and  A."Memo.,  4145.) 

See  below,  under  "Officers  temporarily 
absent  from  vessel." 

Officers  of  receiving  ships. — A  recei\dng 
ship  at  anchor  is  not  "a  seagoing  vessel" 
within  the  meaning  of  the  Revised  Statutes, 
sections  1578  and  1579;  accordingly  a  boatswain 
in  the  Navy  attached  to  such  ship  is  not  entitled 
to  a  ration.     (Frary  v.  U._  S.,  24  Ct.  Cls.,  114.) 

Section  1579  is  a  limitation  upon  section  1578 ; 
the  one  gives  and  the  other  takes  away,  and  that 
alone  which  remains  stands  as  the  law.  To 
entitle  officers  and  other  persons,  with  some  ex- 
ceptions, to  rations,  they  must  be  either  at  sea 
or  actually  attached  to  and  doing  duty  on  a  sea- 
going vessel,  whether  such  vessel  be  at  sea  or  not. 
That  Congress  intended  to  exclude  receiving 
ships  from  that  designation  as  seagoing  vessels 
is  conclusively  shown  by  the  exception  in  sec- 
tion 1579,  which,  after  prohibiting  the  allowance 
of  rations  to  persons  not  on  a  seagoing  vessel 
expects  petty  officers,  seamen,  and  ordinary 
seamen  attached  to  receiving  ships.  An  excep- 
tion is  part  of  what  is  previously  described  and 
not  of  something  else.  (Frary  v.  U.  S.,  24.  Ct. 
Cls.,  114;  21  Comp.  Dec,  318.) 

A  mate  in  the  Navy  on  duty  on  a  receiving 
ship  is  entitled,  under  the  decision  in  Fuller  v. 
United  States  (noted  below),  to  rations  or  com- 
mutation therefor.  (Baxter  v.  U.  S.,  32  Ct. 
Cls.,  75.) 

A  pavTnaster's  clerk  attached  to  and  doing 
duty  on  a  receiving  ship  is  not  entitled  to  rations, 
notwithstanding  that  the  vessel  used  as  a  receiv- 
ing ship,  instead  of  being  a  stationary  hulk,  as 
was  formerly  the  case  is  a  seaworthy  vessel; 
that  it  has  a  regular  complement  for  sea  service 
which,  with  the  vessel,  are  held  in  readiness  to 
go  to  sea  on  short  notice;  and  that,  in  addition, 
she  has  a  complement  as  a  receiving  ship  for 
receiving-ship  duty  which,  if  the  vessel  is 
ordered  to  sea,  remains,  being  automatically 
transferred  to  another  vessel  designated  to  act 
as  receiving  ship  to  take  the  place  of  the  former 
vessel  ordered  to  sea.  The  vessel,  acting  in  her 
capacity  as  receiving  ship,  is  stationary  and 
does  not  go  to  sea,  and,  so  far  as  her  receiving 
ship  complement  is  concerned,  is  not  a  seagoing 
vessel  within  the  meaning  of  section  1579, 
Revised  Statutes.     (21  Comp.  Dec,  314.) 

Warrant  officer  on  training  ship. — \\Tiere 
a  vessel  is  attached  to  a  naval  training  station  to 
be  used  for  training  landsmen  and  apprentices, 
but  is  also  commissioned  with  all  sails  bent  and 
kept  in  readiness  to  go  to  sea,  a  boatswain  at- 
tached to  said  training  station  for  such  duty  as 
the  commandant  thereof  may  assign  him  at  the 
station  under  his  command,  who  is  detailed  by 
the  commandant  to  dutj^  on  board  said  vessel 
and  such  other  duty  as  may  be  assigned  to  him 


at  said  station,  and  is  fimiished  quarters  and 
messes  on  board  of  such  v'essel,  is  entitled  to 
rations  or  conunutation  thereof  while  on  said 
duty.     (14  Comp.  Dec,  233.) 

Ordinary  of  a  navy  yard. — The  term 
"ordinary  of  a  navy  yard,"  as  used  in  Revised 
Statutes,  section  1579,  refers  to  ships  laid  up  in 
ordinary  at  a  navy  yard.  The  meaning  of  the 
section  is  that  petty  officers,  etc.,  though  not 
upon  a  "seagoing  vessel,"  may  be  allowed  a 
ration  if  "actually  attached  to  and  doing  duty  " 
on  shipboard.  But  it  does  not  extend  to  the 
apothecarv"  of  the  Navy  Academy.  (Button  v. 
U.  S.,  20  Ct.  Cls.,  423.) 

An  apothecary  in  the  Navy  detailed  to  and 
doing  duty  at  the  marine  barracks  is  not  "at- 
tached to  the  ordinary  of  a  navy  yard"  within 
the  meaning  of  the  Revised  Statutes,  section 
1579,  and  therefore  is  not  entitled  to  a  daily 
ration.     (Herbert  v.  U.  S.,  21  Ct.  Cls.,  53.) 

See  section  1534,  Revised  Statutes,  as  to  ves- 
sels laid  up  in  ordinary. 

Judge  Advocate  General. — The  provisions 
of  section  1579,  Revised  Statutes,  preclude  the 
allowance  of  a  sea  ration  to  the  Judge  Advocate 
General,  whose  duty  is  in  the  Navy  Depart- 
ment, the  law  then  in  effect  providing  that  the 
Judge  Advocate  General  shall  hav'e  the  "allow- 
ances" of  a  captain  in  the  Navy.  (Lemly  v. 
U.  S.,  28  Ct.  Cls.,  468.) 

Mates. — Elates  are  petty  officers,  and  as  such 
are  entitled  to  rations  or  conunutation  therefor. 
(U.  S.  V.  Fuller,  160  U.  S.,  593;  see  also  sec. 
1408,  R.  S.,  as  to  status  of  mates.) 

The  exceptions  of  mates  from  section  1569, 
Revised  Statutes,  merely  indicates  that  Con- 
gress, having  already  fixed  their  pay  by  section 
1556,  such  pay  need  not  be  fixed  by  the  Presi- 
dent. But  they  are  still  within  the  exception 
of  "petty  officers,  seamen,  and  ordinary  seamen 
attached  to  receiving  ships,  "  who  are  inferenti- 
ally  allowed  a  ration  by  section  1579.  The 
exception  of  mates  from  other  petty  officers  in 
section  1569  indicates  that  they  are  petty 
officers,  and  the  exception  of  petty  officers 
from  those  who  are  not  entitled  to  rations  under 
section  1579  indicates  that  as  such  thev"  are 
entitled  to  a  ration.  (U.  S.  v.  Fuller,  160  U.  S. 
593.) 

Officers  temporarily  absent  from  ves- 
sel.— See  above,  under  "Subsistence  when 
absent  from  vessel  or  on  detached  duty." 

Officers  of  the  Navy  on  sea  duty,  temporarily 
located  on  shore  for  the  convenient  and  efficient 
performance  of  the  services  required  of  them 
under  competent  orders,  are  entitled  to  sea- 
duty  pay  but  not  to  commutation  of  rations 
under  section  1579,  Revised  Statutes,  which 
authorizes  commutation  of  rations  only  while 
actually  performing  duty  on  board  a  seagoing 
vessel.     (27  Comp.  Dec,  222.) 

Under  section  1579,  a  warrant  officer  is  en- 
titled to  commutation  of  rations  only  when  actu- 
ally attached  to  and  doing  duty  on  board  a 
seagoing  vessel.  A  pay  clerk  attached  to  but 
not  actually  doing  duty  on  board  a  seagoing 
vessel  is  not  entitled  to  commutation  of  rations, 
although  his  temporary  situation  on  shore,  due 
to  the  exigencies  of  the  service,  did  not  change 
the  character  of  his  duty  as  sea  duty;  yet  the 
law  requires  that  he  must  in  fact  perform  duty 
on  board  a  seagoing  vessel  to  entitle  him  to  a 


897 


Sec.  1580. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


ration.  The  word  "actually"  will  not  permit 
a  constructive  status;  and  therefore  the  pay 
clerk,  although  on  sea  duty  and  attached  to  a 
seagoing  vessel,  while  so  tenij)orarily  located 
on  shore  is  not  entitled  to  commutation  of 
rations.  (Comp.  Dec,  Sept.  2,  1920,  file 
26254-3232.) 

Temporarily  in  hospital. — See  note  above, 
under  "Subsistence  when  absent  from  vessel 
or  on  detached  duty." 

Where  an  officer  attached  to  a  seagoing  vessel 
was  entitled  to  commutation  of  rations,  under 
section  1578,  Rev'ised  Statutes,  his  temporary 
absence  in  hospital,  under  treatment,  without 
being  detached  from  his  vessel,  did  not  deprive 
him  of  such  commutation.  (Collins  v.  U.  S., 
37  Ct.  Cls.,  222,  226.) 

By  section  4812,  Revised  Statutes,  for  every 
Navy  officer,  seamen,  or  marine  admitted  into 
a  Na\^  hospital  the  institution  shall  be  allowed 
one  ration  per  day  during  his  continuance 
therein,  "to  be  deducted  from  the  account  of 
the  United  States  -with  such  officer,  seamen, 
or  marine."  By  the  annual  naval  appropria- 
tion act,  under  "Provisions,  Navy,"  appropria- 
tion is  made  for  "commuted  rations  stopped  on 
account  of  sick  in  hospital  and  credited  to  the 
naval  hospital  fund."  This  appropriation 
shows  that  the  law  contemplates  a  condition 
where  a  man  may  be  in  hospital  while  at  the 
same  time  he  is  entitled  to  be  credited  A\ith  a 
ration,  for  otherwise  there  would  be  no  ration  to 
be  stopped  for  the  sick,  and  no  appropriation 
would  be  necessary  if  the  ration  were  to  be 
charged  against  his  pay,  as  provided  by  section 
4812.  This  appropriation  means  simply  that 
the  commutation  of  rations  to  which  a  person 
is  entitled  by  being  attached  to  a  seagoing 
vessel  is  to  be  transferred  to  the  hospital  to 
which  he  is  sent,  and  the  statute  makes  an 
appropriation  to  pay  for  the  same.  Of  course 
the  appropriation  would  not  apply  where  an 
officer  becomes  detached  from  his  vessel  while 
in  hospital  or  on  being  sent  there.  (4  Comp. 
Dec,  458.) 

Under  the  appropriation  for  commuted 
rations  for  the  Navy,  a  paymaster's  clerk  at- 
tached to  a  seagoing  vessel  who  is  temporarily 
in  hospital  without  being  detached  from  his  ship 
is  entitled  to  commutation  of  rations,  which 
should  be  credited  to  the  naval  hospital  fund 
in  accordance  \vith  the  language  of  the  appro- 
priation; and  no  deduction  should  be  made 
from  the  pay  of  such  pa^Tuaster's  clerk  on  ac- 
count of  rations  credited  to  the  hospital,  as 
provided  by  section  4812,  Revised  Statutes. 
(4  Comp.  Dec,  458.) 

The  appropriation  for  commutation  of  rations 
stopped  on  account  of  sick  in  hospital  and  cred- 
ited to  the  naval  hospital  fund  repeals,  in  effect, 


the  requirement  of  section  4812,  Revised 
Statutes,  that  one  ration  per  day  shall  be  de- 
ducted from  the  account  of  every  naval  officer 
sent  to  the  hospital,  in  cases  where  the  ofHcer 
is  not  detached  from  sea  duty  and  is  entitled 
to  a  ration;  but  the  ration  to  which  the  officer 
would  otherwise  be  entitled  by  reasons  of  his 
sea  status  goes  to  the  hospital.  (4  Comp.  Dec, 
644.) 

WTiere  an  officer  of  the  Navy  not  entitled  to 
rations  is  ordered  to  a  hospital  for  treatment, 
charges  of  the  value  of  one  ration  per  day  should 
be  made  against  the  pay  of  such  officer.  (17 
Comp.  Dec,  663.) 

Section  4812,  Revised  Statutes,  has  been 
held  to  mean  that  the  naval  hospital  fund  is 
entitled  to  one  ration  or  the  value  thereof  per 
day  for  each  person  treated  in  a  naval  hospital, 
and  when  the  officer  is  not  entitled  to  rations 
the  value  of  one  ration  is  deducted  from  his 
pay  and  credited  to  said  fund.  This  practice 
began  \\-ith  the  first  law  depri^dng  officers  of 
rations  and  has  continued  to  the  present  time. 
Under  Navy  Regulations  1909,  article  1129  (1), 
this  practice  applies  to  officers  under  treatment 
in  foreign  hospitals.     (17  Comp.  Dec,  663.) 

Although  a  retired  enlisted  man  on  inactive 
duty  is  entitled  to  only  $9.50  per  month,  "in 
lieu  of  rations  and  clothing,"  and  something 
less  than  .$9.50  is  in  lieu  of  rations,  some  portion 
of  the  amount  being  in  lieu  of  clothing,  hrld, 
that  under  section  4812,  Re\ised  Statutes,  the 
account  of  such  enlisted  man,  while  under 
treatment  in  a  naval  hospital,  should  be 
checked  68  cents  per  day  as  the  value  of  a  ra- 
tion for  each  day  that  he  is  subsisted  as  a  patient 
and  said  amount  credited  to  the  institution, 
the  act  of  July  11,  1919  (41  Stat.,  147),  having 
fixed  this  as  the  commutation  value  of  a  Navy 
ration  until  the  close  of  the  fiscal  vear  1921. 
(26  Comp.  Dec,  784.  Note:  By  said  act  of 
July  11,  1919,  under  "Provisions,  Navy," 
appropriation  was  made  for  "commuted  ra- 
tions stopped  on  account  of  sick  in  hospital 
and  credited  at  the  rate  of  50  cents  per  ration 
to  the  naval  hospital  fund.") 

Court-martial  prisoners. — Annual  appro- 
priation, under  "Provisions,  Navy,"  is  made 
for  "subsistence  of  *  *  *  general  courts- 
martial  prisoners  undergoing  imprisonment 
with  sentences  of  dishonorable  aischarge  from 
the  service  at  the  expiration  of  such  confine- 
ment," with  the  proviso,  "That  the  Secretary 
of  the  Navy  is  authorized  to  commute  rations 
for  such  general  courts-martial  prisoners  in 
such  amounts  as  seem  to  him  proper,  which 
may  vary  in  accordance  with  the  location  of 
the  naval  prison,  but  which  shall  in  no  case 
exceed  30  cents  per  diem  for  each  ration  so 
commuted." 


Sec.  1580.  [Navy  ration,  constituents  of.]  The  Navy  ration  shall  consist 
of  the  following  daily  allowance  of  provisions  to  each  person:  One  pound  and  a 
quarter  of  salt  or  smoked  meat,  wdth  thi'ee  ounces  of  dried  or  six  ounces  of 
canned  or  preserved  fruit,  and  three  gills  of  beans  or  pease,  or  twelve  ounces  of 
flour;  or  one  pound  of  preserved  meat,  with  three  ounces  of  dried  or  six  ounces 
of  canned  or  preserved  fruit  and  eight  ounces  of  rice  or  twelve  ounces  of  canned 
vegetables,  or  six  ounces  of  desiccated  vegetables;  together  with  one  pound  of 


898 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1581. 


biscuit,  two  ounces  of  butter,  four  ounces  of  sugar,  two  ounces  of  coffee  or  cocoa, 
or  one-half  ounce  of  tea  and  one  ounce  of  condensed  milk  or  evaporated  cream; 
and  a  weekly  allowance  of  one-quarter  pound  of  macaroni,  four  ounces  of 
cheese,  four  ounces  of  tomatoes,  one-half  pint  of  vinegar  or  sauce,  one-quarter 
pint  of  pickles,  one-quarter  pmt  of  molasses,  four  ounces  of  salt,  one-half  ounce 
of  pepper,  one-eighth  ounce  of  spices,  and  one-haK  ounce  of  dry  mustard. 
Seven  pounds  of  lard,  or  a  suitable  substitute,  shall  be  allowed  for  every  hundred 
pounds  of  flour  issued  as  bread,  and  such  quantities  of  yeast  and  flavoring 
extracts  as  may  be  necessary. 


This  section  was  expressly  amended 
and  reenacted  to  read  as  above  by  act  of 
June  29,  1906  (34  Stat.,  570).  As  originally 
enacted,  it  read  as  follows: 

"Sec.  1580.  The  Nav-y  ration  shall  consist  of 
the  following  daily  allowance  of  provisions  to 
each  person :  One  pound  of  salt  pork,  with  hah 
a  pint  of  beans  or  peas;  or  one  pound  of  salt  beef, 
with  half  a  pound  of  flour  and  two  ounces  of 
dried  apples,  or  other  dried  fruit;  or  three- 
quarters  of  a  pound  of  preserv'ed  meat,  with  a 
half  pound  of  rice,  two  ounces  of  butter,  and 
one  ounce  of  desiccated  'mixed  vegetables;' 
or  three-quarters  of  a  pound  of  preserved  meat, 
two  ounces  of  butter,  and  two  ounces  of  desic- 
cated potatoes;  together  with  fourteen  ounces 
of  biscuit,  one-quarter  of  an  ounce  of  tea,  or  one 
ounce  of  coffee  or  cocoa,  and  two  ounces  of 
sugar;  and  a  weekly  allowance  of  half  a  pint  of 
pickles,  half  a  pint  of  molasses,  and  half  a  pint 
of  Ainegar."— (18  July,  1861,  c.  7,  s.  1,  v.  12, 
p.  264.     14  July,  1862,  c.  164,  s.  4,  v.  12,  p.  565.) 

It  had  previously  been  amended  and 
reenacted  by  act  of  July  1, 1902  (32  Stat. ,  679), 
to  read  as  follows: 

"Sec.  1580.  The  Navy  ration  shall  consist  of 
the  following  daily  allowance  of  provisions  to 
each  person:  One  pound  and  a  quarter  salt  or 
smoked  meat,  vnth  three  ounces  of  dried  or  six 
ounces  of  canned  fruit,  and  three  gills  of  beans 
or  peas,  or  twelve  ounces  of  flour;  or  one  pound 
of  preser\'ed  meat,  with  three  ounces  of  dried  or 
six  ounces  of  canned  fruit,  and  twelve  ounces  of 
rice  or  eight  ounces  of  canned  vegetables  or  four 
ounces  of  desiccated  vegetables;  together  with 


one  pound  of  biscuit,  two  ounces  of  butter,  four 
ounces  of  sugar,  two  ounces  of  coffee  or  cocoa  or 
one-half  ounce  of  tea  and  one  ounce  of  con- 
densed milk  or  evaporated  cream ;  and  a  weekly 
allowance  of  one-half  pound  of  macaroni,  four 
ounces  of  cheese,  four  ounces  of  tomatoes,  one- 
half  pint  of  vinegar,  one-half  pint  of  pickles, 
one-half  pint  of  molasses,  four  ounces  of  salt, 
one-quarter  ounce  of  pepper,  and  one-half 
ounce  of  dry  mustard.  Five  pounds  of  lard  or  a 
suitable  substitute  shall  be  allowed  for  e/ery 
hundred  pounds  of  flour  issued  as  bread,  and 
such  quantities  of  yeast  as  may  be  necessary." 

Refuse  of  rations  is  Government  prop- 
erty.— Theoretically,  the  component  parts  of 
the  ration  are  issued  to  the  indi\idual  men,  and 
such  may  originally  have  been  the  practice; 
but  it  is  the  practice  now,  and  has  been  for  a 
long  time,  to  subsist  the  men  by  means  of  the 
commissaiy  department  of  the  vessel.  The 
men  have  nothing  to  do  with  the  ration,  but 
only  with  food  cooked  and  placed  on  the  table 
for  their  use  as  food ;  the  whole  issue  and  prep- 
aration is  done  by  persons  appointed  and  paid 
by  the  Government  for  the  purpose.  Held, 
that  the  enlisted  men  are  entitled  to  use  the 
articles  furnished  as  food  to  be  eaten,  but  with 
no  interest  in  the  refuse,  which  remains  pubhc 
property;  and  that  the  proceeds  from  sale  of 
garl)age  from  the  general  mess  of  a  recei\ing 
ship  should  be  covered  into  the  Treasury  as 
miscellaneous  receipts.     (19  Comp.  Dec,  450.) 

For  other  cases,  see  note  to  section  1581, 
Re\'ised  Statutes. 


Sec.  1581.  [Substitutions  in  rations,  and  extra  allowance  for  night  watches.] 
The  following  substitution  for  the  components  of  the  ration  may  be  made  when 
deemed  necessary  by  the  senior  officer  present  in  command:  "For  one  and  one- 
quarter  pounds  of  salt  or  smoked  meat  or  one  pound  of  preserved  meat,  one  and 
three-quarter  pounds  of  fresh  meat  or  fresh  fish,  or  eight  eggs;  in  lieu  of  the 
articles  usually  issued  with  salt,  smoked,  or  preserved  meat,  one  and  three-quar- 
ter pounds  of  fresh  vegetables;  for  one  pound  of  biscuit,  one  and  one-quarter 
pounds  of  soft  bread  or  eighteen  ounces  of  flour;  for  three  gills  of  beans  or  pease, 
twelve  ounces  of  flour  or  eight  ounces  of  rice  or  other  starch  food,  or  twelve 
ounces  of  canned  vegetables;  for  one  pound  of  condensed  milk  or  evaporated 
cream,  one  quart  of  fresh  milk ;  for  three  ounces  of  dried  or  six  ounces  of  canned 
or  preserved  fruit,  nine  ounces  of  fresh  fruit;  and  for  twelve  ounces  of  flour  or 
eight  ounces  of  rice  or  other  starch  food,  or  twelve  ounces  of  canned  vegetables, 
three  giUs  of  beans  or  pease;  in  lieu  of  the  weekly  allowance  of  one-quarter  pound 


899 


Sec.  1581. 


rt.  2.  REVISED  STATUTES. 


The  Navy. 


of  macaroni,  four  ounces  of  cheese,  one-half  pint  of  vinegar  or  sauce,  one-quarter 
pint  of  pickles,  one-{juarter  pint  of  molasses,  and  one-eighth  ounce  of  spices, 
tlii'ee  pounds  of  sugar,  or  one  and  a  half  pounds  of  condensed  milk,  or  one  pound 
of  coffee,  or  one  and  a  half  pounds  of  canned  fruit,  or  four  pounds  of  fresh 
vegetables,  or  four  pounds  of  flour. 

"An  extra  allowance  of  one  ounce  of  coffee  or  cocoa,  two  ounces  of  sugar, 
four  ounces  of  hard  bread  or  its  equivalent,  and  four  ounces  of  preserved  meat 
or  its  equivalent  shall  be  allowed  to  enlisted  men  of  the  engineer  and  dynamo 
force  who  stand  night  watches  between  eight  o'clock  postmeridian  and  eight 
o'clock  antemeridian,  imder  steam." 

Any  article  comprised  in  the  Navy  ration  may  be  issued  in  excess  of  the 
authorized  quantity,  provided  there  be  an  under  issue  of  the  same  value  in  some 
other  article  or  articles. 


This  section  Awas  expressly  amended  and 
reenacted  to  read  as  above  by  acts  of  June  29, 
1906  (34  Stat.,  571),  and  March  2,  1907  (34  Stat., 
1193),  the  araendrnent  made  by  the  act  last 
cited  consisting  of  the  addition  to  section  1.581 
of  the  last  paragraph  thereof,  as  above  set  forth. 
As  originally  enacted,  it  read  as  follows: 

"  Sec.  1581.  The  following  substitution  for  the 
components  of  the  ration  may  be  made  when  it 
is  deemed  necessary  by  the  senior  officer 
present  in  command:  For  one  pound  of  salt 
beef  or  pork,  one  pound  and  a  quarter  of  fresh 
meat  or  three-quarters  of  a  pound  of  preserved 
meat;  for  any  or  all  of  the  articles  usually  issued 
with  the  salted  meats,  vegetables  equal  to  the 
same  in  value;  for  fourteen  ounces  of  biscuit, 
one  pound  of  soft  bread,  or  one  pound  of  flour, 
or  half  a  pound  of  rice;  for  half  a  pint  of  beans  or 
peas,  half  a  pound  of  rice,  and  for  half  a  pound 
of  rice,  half  a  pint  of  beans  or  peas.  And  the 
Secretary  of  the  Na\'y  may  substitute  for  the 
ration  of  coffee  and  sugar  the  extract  of  coffee 
combined  with  milk  and  sugar,  if  he  shall 
believe  such  substitution  to  be  conducive  to  the 
health  and  comfort  of  the  Navy,  and  not  to  be 
more  expensive  to  the  Government  than  the 
present  ration:  Provided,  That  the  same  shall  be 
acceptable  to  the  men." — (18  July,  1861,  c.  7, 
ss.  2,  3,  4,  v.  12,  p.  265.  17  April,  1862,  c.  57, 
s.  4,  v.  12,  p.  381.) 

It  was  previously  amended  bv  act  of  May 
3,  1880  (21  Stat.,  86),  which  proA-ided  that  "the 
Secretary  of  the  Navy  may  substitute  for  the 
ration  of  'two  ounces  of  desiccated  potatoes' 
six  ounces  of  desiccated  tomatoes  if  he  shall 
believe  such  substitution  to  be  conducive  to 
the  health  and  comfort  of  the  Navy,  and  not  to 
be  more  expensive  to  the  Government  than  the 
present  ration,  provided  the  same  shall  be  ac- 
ceptable to  the  men.  In  the  event  the  Secre- 
tary of  the  NaA^  orders  such  substitution  he  is 
authorized  to  have  sold  at  i)ublic  auction  any 
desiccated  potatoes  on  hand,  the  proceeds  of 
which  sale  shall  be  used  in  the  purchase  of  desic- 
cated tomatoes  for  the  use  of  the  Navy." 

It  was  again  amended  by  act  of  July  1,  1902 
(32  Stat.,  680),  which  exj^ressly  repealed  the 
provision  above  quoted  from  the  act  of  May  3, 
1880,  and  reenacted  section  1581  to  read  as 
follows: 

"Sec.  1581.  The  following  substitution  for 
the  components  of  the  ration  may  be  made  when 


deemed  necessary  by  the  senior  officer  present 
in  command: 

"For  one  and  one-quarter  pounds  of  salt  or 
smoked  meat  or  one  pound  of  preserved  meat, 
one  and  three-quarters  pound  of  fresh  meat;  in 
lieu  of  the  article  usually  issued  Anth  salt, 
smoked,  or  preserved  meat,  fresh  vegetables  of 
equal  value;  for  one  pound  of  biscuit,  one  and 
one-quarter  pounds  of  soft  bread,  or  eighteen 
ounces  of  flour;  for  three  gills  of  beans  or  peas, 
twelve  ounces  of  flour  or  rice  or  eight  ounces  of 
canned  vegetables,  and  for  twelve  ounces  of 
flour  or  rice  or  eight  ounces  of  canned  vege- 
tables, three  gills  of  beans  or  peas." 

The  act  of  July  1,  1902  (32  Stat.,  680),  also 
enacted  the  folloAving  clause,  but  not  as  a  part 
of  section  1581,  although,  with  slight  verbal 
change,  embraced  in  that  section  as  reenacted 
by  tbe  act  of  June  29,  1906: 

"That  an  extra  allowance  of  one  ounce  of 
coffee  or  cocoa,  two  ounces  of  sugar,  four  ounces 
of  hard  bread  or  its  equivalent,  and  four  ounces 
of  preserved  meat  or  its  equivalent  shall  be 
allowed  to  enlisted  men  of  the  engineer  and 
dynamo  force  when  standing  night  watches 
between  eight  o'clock  postmeridian  and  eight 
o'clock  antemeridian  under  steam." 

A  provision  similar  to  that  last  quoted  was 
enacted  by  act  of  May  22,  1917,  section  21  (40 
Stat.,  90),  which  applied  only  for  the  period  of 
the  then  existing  war,  and  extended  said  extra 
allowance  to  enlisted  men  of  the  deck  force. 
See  note  to  section  1584,  Revised  Statutes. 

Issue  of  fruits  with  fresh  meat. — WTien 
fresh  meat  is  substituted  for  salt,  smoked,  or 
preserved  meat,  "three  ounces  of  dried,  or  six 
ounces  of  canned  or  preserved  fruit,"  may  be 
issued  therewith;  or  "nine  ounces  of  fresh 
fruit "  may  be  substituted  for  the  dried,  canned, 
or  preserved  fruit.  (File  21177-3,  Jan.  25, 
1911.) 

"When  "one  and  three-quarter  pounds  of 
fresh  vegetables"  are  issued  vnth  fresh  meat  as 
a  substitute  for  ' '  the  articles  usually  issued  vnth. 
salt,  smoked,  or  preserved  meat,"  there  may 
be  issued  therewith  "one  and  a  half  pounds  of 
canned  fruit, "  or  such  portion  thereof  as  desired, 
"in  lieu  of  the  ircekli/  allowance  of  one-quarter 
pound  of  macaroni,  four  ounces  of  cheese,  one- 
half  pint  of  vinegar  or  sauce,  one-quarter  pint 
of  pickles,  one-quarter  pint  of  molasses,  and 


900 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1585. 


one-eighth  ounce  of  spices."  (File  21177-3, 
Jan.  25,  1911.) 

WTien  fresh  meat  is  issued  with  dried,  canned, 
or  preserved  fruit,  or  A\ith  fresh  fruit,  in  ac- 
cordance with  above  ruling,  there  may  also  be 
issued  there-n-ith  "four  pounds  of  fresh  vege- 
tables," or  such  portion  thereof  as  desired,  "in 
lieu  of  the  weekly  allowance  of  one-quarter 
pound  of  macaroni,"  and  other  items  specified 
above.     (File  21177-3,  Jan.  25,  1911.) 

Any  of  the  articles  above  enumerated  may 
be  issued  in  excess  of  the  quantities  stated, 
"provided  there  be  an  under  issue  of  the  same 


value  in  some  other  article  or  articles."    (File 
21177-3,  Jan.  25,  1911.) 

Substitution  for  butter. — The  Navy  ration 
includes  a  daily  allowance  to  each  person  of 
"two  ounces  of  butter."  Substitutes  are 
authorized  for  certain  components  of  the  ration, 
not  including,  however,  butter,  as  to  which, 
accordingly,  no  substitution  can  be  made. 
Held,  therefore,  that  oleomargarine  or  butterine 
can  not  legally  be  substituted  for  butter  as  a 
part  of  the  Navv  ration.  (File  19398-34,  Apr. 
14,  1913;  148  S.  and  A.  Memo.,  2682.) 


Sec.  1582.  [Short  allowance.]  In  case  of  necessity  the  daily  allowance  of  pro- 
visions may  be  diminished  at  the  discretion  of  the  senior  officer  present  in 
command;  but  payment  shall  be  made  to  the  persons  whose  allowance  is  thus 
diminished,  according  to  the  scale  of  prices  for  the  same  established  at  the 
time  of  such  diminution.  And  every  commander  who  makes  any  diminution 
or  variation  shall  give  to  the  paymaster  ^^Titten  orders  therefor,  specifying 
particularly  the  diminution  or  variation  which  is  to  be  made,  and  shall  report 
to  his  commanding  officer,  or  to  the  Navy  Department,  the  necessity  for  the 
same.— (18  July,  1861,  c.  7,  s.  4,  v.  12,  p.  265.) 

Sec.  1583.  [Rations  stopped  for  the  sick.]  Rations  stopped  for  the  sick  on 
board  vessels  shall  remain  and  be  accounted  for  by  the  paymaster  as  a  part  of 
the  provisions  of  the  vessels. —  (3  Mar..  1851,  c.  34,  s.  1,  v.  9,  p.  621.  22  June, 
1860.  c.  181,  s.  3,  V.  12,  p.  83.) 

See  act  of  March  29,  1894  (28  Stat.,  47),  as  to 
rendition  of  property  accounts,  noted 
under  section  236,  Revised  Statutes,  under 
"III.  Limitations  upon  Jurisdiction." 


See  note  to  section  1579,  Revised  Statutes, 
under  "Temporarily  in  hospital";  and  see 
section  4812,  Revised  Statutes. 


Sec.  1584.   [Additional  ration.     Repealed.] 


This  section  provided  as  follows: 

"Sec.  1584.  An  additional  ration  of  tea  or 
coffee  and  sugar  shall  be  hereafter  allowed  to 
each  seaman,  to  be  provided  at  his  first  'turn- 
ing out.'  "—(23  Mav,  1872,  c.  195,  s.  1,  v.  17,  p. 
151.) 

It  was  expressly  repealed  bv  act  of  Julv 
1,  1902  (32  Stat.,  680). 

Additional  rations  in  special  cases  were 
authorized  as  follows:  By  act  of  July  1,  1902 
(32  Stat.,  680),  quoted  above  under  section 
1581,  Revised  Statutes,  an  extra  allowance  was 
authorized  for  men  standing  night  watches. 
The  said  enactment  of  July  1,  1902,  was  super- 


seded and  repealed  by  act  of  .Tune  29,  1906 
(34  Stat.,  571),  which  reenacted  same,  ^vith  a 
slight  verbal  change,  as  part  of  section  1581  as 
that  section  now  reads.  By  act  of  Mav  22, 
1917,  section  21  (40  Stat.,  90),  the  following 
provision  was  enacted  for  the  period  of  the  war: 
"That  during  the  continuance  of  the  present 
war  an  extra  allowance  of  one  ounce  of  coffee 
or  cocoa,  two  ounces  of  sugar,  four  ounces  of 
hard  bread  or  its  equivalent,  and  four  ounces 
of  preserved  meat  or  its  equivalent  shall  be 
allowed  to  enlisted  men  of  the  deck  force  when 
standing  night  watches  between  eight  o'clock 
postmeridian  and  eight  o'clock  antemeridian." 


Sec.  1585.  [Ration  commutation.]  Forty  cents  shall  in  aU  cases  be  deemed 
the  commutation  price  of  the  Navy  ration:  Provided,  however,  That  after 
January  first,  nineteen  hundred  and  eighteen,  the  commutation  price  shall 
not  exceed  the  average  cost  of  the  ration  during  the  preceding  six  months,  not 
to  exceed  40  cents. 


This  section  was  expressly  amended  and 
reenacted  to  read  as  above  bv  act  of  October 
6,  1917  (40  Stat.,  397).  As  originally  enacted, 
it  read  as  follows 

"Sec.  1.585.  Thirty  cents  shall  in  all  cases  be 
deemed  the  commutation  price  of  the  Navv 
ration."— (15  July,  1870,  c.  295,  s.  4,  v.  16,  d. 
333.) 


Other  amendments  to  this  section  have 
been  made  by  clauses  in  the  naval  appropria- 
tion acts  effective  for  the  ensuing  fiscal  year. 
The  act  of  June  4,  1920,  (41  Stat.,  825),  under 
" Prox-isions,  Navy,"  contained  the  foUoAving: 
"For  pro\'isions  and  commuted  rations  for  the 
seamen  and  marines,  which  commuted  rations 
may  be  paid  to  caterers  of  messes,  in  case  of 


901 


Sec.  1586. 


7'/.  2.  REVISED  STATUTES. 


The  Navy. 


death  or  desertion,  upon  orders  of  llio  comniand- 
ing  officers,  X-ommutod  rations  for  officers  on  sea 
duty  (other  than  commissioned  officers  of  the 
line,  Medical  and  Sujjply  ('orj)s,  _cha]>lains, 
chief  boatswains,  chief  <;unners,  chief  carpen- 
ters, chief  machinists,  chief  pay  clerks,  and 
chief  sailmakers)  at  68  cents  per  diem,  and 
midshipmen  at?!. 08  per  diem,  and  commuted 
rations  stopped  on  ai'count  of  sick  in  hospital 
and  credited  at  the  rate  of  68  cents  per  ration 
to  the  naval  hospital  fund;  *  *  *  subsist- 
ence of  *  *  *  Navy  and  Marine  (^orps 
general  courts-martial  prisoners  undergoing 
imprisonment  with  sentences  of  di.shonorable 
discharge  from  the  service  at  the  expiration  of 
such  confinement:  Provided,  That  the  Secre- 
tarv  of  the  Navy  is  authorized  to  commute 
rations  for  such  general  courts-martial  prisoners 
in  such  amounts  as  seem  to  him  proper,  which 
may  vary  in  accordance  Math  the  location  of 
the  naval  prison,  but  which  shall  in  no  case 
exceed  30  cents  per  diem  for  each  ration  so 
commuted;  and  for  the  purchase  of  United 
States  Army  emergency  rations  as  required." 
The  same  act,  under  "Provisions,  Marine 
Torps"  (41  Stat.,  831),  provided  for  "com- 
mutation of  rations  to  recruiting  parties,  and 
enlisted  men  traveling  on  special  duty,  at 
such  rate  as  the  Secretary  of  the  Navy  may 
prescribe. " 

Payment  to  commissary  oflB.cer. — By  act 
of  July  1,  1902  (32  Stat.,  680),  it  was  provided 
"that  money  accruing  from  the  rations  of  en- 
listed men  commuted  for  the  benefit  of  any 
mess  may  be  paid  on  public  bills  to  the  corn- 
missary  officer  by  the  pay  officer  ha^dng  their 
accounts."  (See  also  clause  quoted  above, 
from  act  of  June  4,  1920,  as  to  payment  to 
caterers  of  messes  in  case  of  death  or  desertion.) 

Under  Navv  regulations  prior  to  July  1,  1907 
(revoked  by  G.  O.  No.  44,  Apr.  16,  1907),  the 
commutation  value  of  rations  due  enlisted  men 
was  credited  by  the  pay  officer  to  himself  as 
such,  and  debited  against  himself  as  commis- 
sary offi<'er  in  charge  of  the  general  mess,  com- 
posed of  such  enlisted  men,  the  money  never 
actually  leaving  the  pay  officer's  hands  until 
finally  paid  out  in  the  shape  of  mess  expend- 
itures and  not  being  paid  over  to  the  individual 
enlisted  men  who  composed  the  mess.  It  was 
held  by  the  Comptroller  of  the  Treasury  that 
such  commutation  money  in  the  hands  of  the 
pay  officer  was  public  money  until  actually 
expended  by  him,  and  he  should  be  required 


to  account  for  its  proper  disbursement  to  the 
accounting  offi<"ers  of  the  Treasury,  the  same  as 
any  other  public  money  placed  in  his  hands 
for  disl)ursement  in  his  official  capacity. 
(12  (omp.  Dec,  678;  see  also  94  S.  and  A. 
Memo.,  923,  relating  to  midshipmen's  mess, 
noted  under  sec.  236,  Revised  Statutes,  under 
"II.  Jurisdiction  of  accounting  officers,"  sub- 
heading, "Puldic  monev.") 

The  act  of  July  1,  1902  (.32  Stat.,  680).  author- 
izing the  payment  of  money  accruing  from  the 
rations  of  enlisted  men  "commuted  for  the 
benefit  of  any  mess,"  does  not  extend  to  an 
officer's  mess  on  shore.  Officers'  messes  on 
shore  are  voluntary,  and  there  is  no  law  or 
regulation  which  rccosjuizes  them.  (Williams 
V.  U.  S.,  44  rt.  Cls.,  17.5.) 

WTiere  enlisted  men  on  shipboard  were  de- 
tailed to  serve  an  officer's  mess  on  shore,  and 
were  subsisted  by  the  mess,  and  their  rations 
were  commuted  and  paid  to  the  mess,  the 
accounting  officers  could  disallow  the  payment 
and  compel  the  officers  to  refund  the  money. 
(Williams  v.  U.  S.,  44  Ct.  Cls.,  175.) 

The  chief  petty  officers'  mess  and  its  organ- 
ization are  provided  for  in  part  by  Na\-y  regula- 
tions; the  duly  elected  treasurer  of  said  mess  is 
not  an  agent  of  the  Government,  the  commuted 
rations  of  each  member  of  such  a  mess,  when 
paid  to  said  treasurer,  are  no  longer  public 
funds,  and  may  be  expended  by  him  in  such 
manner  as  the  mess  may  direct.  (File  26262- 
3.363,  G.  C.  M.  Rec.  41585,  C.  M.  O.  190,  1918, 
pp.  17-19,  holding  that  the  treasurer  of  a  chief 
petty  officer's  mess  was  not  guilty  of  "making 
false  and  fraudulent  official  reports  in  violation 
of  article  fourteen  of  the  Articles  for  the  Govern- 
ment of  the  Navy"  by  reason  of  his  presenting 
false  and  fraudulent  vouchers  in  rendering  his 
official  statement  of  the  accounts  of  said  mess 
to  the  members  of  the  mess  and  the  auditing 
board,  because  the  fraud  was  not  against  the 
United  States.) 

Commutation  defined. — Commutation  in 
the  military  or  naval  service  is  money  paid  in 
substitution  of  something  to  which  an  officer, 
sailor,  or  soldier  is  entitled.  The  principle 
which  governs  the  commutation  of  rations  in 
lieu  of  subsistence  is  that  commutation  will 
not  be  allowed  where  subsistence  in  kind  is 
provided  by  the  Government.  (Jaegle  v.  U.  S., 
28  Ct.  Cls.,"  133.) 

For  other  cases,  see  notes  to  sections  1578 
and  1579,  Revised  Statutes. 


Sec.  1586.  [Medicines  and  medical  attendance.]  Expenses  incurred  by  any 
officer  of  the  Navy  for  medicines  and  medical  attendance  shall  not  be  allowed 
unless  they  were  incurred  when  he  was  on  duty,  and  the  medicines  could  not 
have  been  obtained  from  naval  supplies,  or  the  attendance  of  a  naval  medical 
officer  could  not  have  been  had.— (15  July,  1870,  c.  295,  s.  17,  v.  16,  p.  334.) 


Payment  by  officers  and  enlisted  men  to  naval 

hospital  fund  is  required  by  sections  1614 

and  4S08,  Revised  Statutes. 

Duty  of  Government  to  provide  medical 

stores  and  attendance. — ^It  is  the  peculiar 

province  and  duty  of  the  NaA^  Department  to 

provide  medical  stores  and  attendance  for  the 

officers   and   seamen   attached    to    the    naval 

service;  this  may  truly  be  said  to  enter  into 


the  contract  of  the  Government  wdth  persons 
so  employed.  For  this  purpose  a  Bureau  of 
Medicine" and  Surgery  is  attached  to  the  NaAy 
Department,  and  niimerous  medical  officers 
appointed.  The  law,  moreover,  exacts  from 
every  officer  and  seaman  a  monthly  contribu- 
tion "from  their  wages  to  make  provision  for  the 
sick  and  disabled;  and  these  contributions  are 
applied,  under  the  supervision  of  the  President, 


902 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1586. 


to  the  erection  and  maintenance  of  marine 
hospitals  and  similar  institutions  for  the  bene- 
fit of  seamen.     (U.  S.  v.  Jones,  18  How.,  92.) 

The  exigencies  of  the  service  often  require 
the  employment  of  soldiers  and  sailors  at  a  dis- 
tance from  public  hospitals,  and  when  the  at- 
tendance of  medical  officers  can  not  be  obtained ; 
consequently,  in  fulfillment  of  the  humane 
policy  of  the  Government,  it  frequently  be- 
comes necessary  to  employ  temporarily  physi- 
cians not  regularly  commissioned,  for  in  this 
way  alone  can  the  department  perform  the  duty 
assumed  by  the  Government  of  providing  the 
necessary  medical  attendance  for  those  who  be- 
come sick  or  disabled  in  its  service.  (U.  S.  v. 
Jones,  18  How.,  92.) 

Navy  Department's  action  conclusive 
upon  accounting  oflB.cers. — The  executive 
department  of  the  Government  to  which  is 
intrusted  the  control  of  the  subject  matter 
must  necessarily  determine  all  questions  ap- 
pertaining to  the  employment  and  payment  of 
civilian  physicians  and  the  exigency  which 
demands  their  employment.  The  Secretary 
of  the  Navy  represents  the  President  and  ex- 
ercises his  power  on  subjects  confided  to  his 
department.  He  is  responsible  to  the  people 
and  the  law  for  any  abuse  of  the  powers  in- 
trusted to  him.  His  acts  and  decisions  on 
subjects  submitted  to  his  jurisdiction  and  con- 
trol by  the  Constitution  and  laws  do  not  re- 
quire the  approval  of  any  officer  of  another 
department  to  make  them  valid  and  conclusive. 
The  accounting  officers  of  the  Treasiu^y  have 
not  the  burden  of  responsibility  cast  upon 
them  of  revising  the  judgments,  correcting  the 
supposed  mistakes,  or  annulling  the  orders 
of  heads  of  departments.  (U.  S.  v.  Jones,  18 
How.,  92.) 

The  propriety  of  detaching  an  officer  of  the 
Navy  for  special  duty  in  France,  of  furnishing 
him  with  medical  attendance  while  so  em- 
ployed, and  of  adopting  and  ratifying  his  act 
in  the  employment  of  physicians,  under  all 
the  circumstances,  are  all  subjects  peculiarly 
within  the  jurisdiction  and  discretion  of  the 
head  of  the  Navy  Department,  and  not  subject 
to  revision  by  the  officers  of  any  other  dei^art- 
ment;  and  the  judgment  of  the  lower  coiu-t, 
in  refusing  to  charge  the  officer  with  the  amount 
disbursed  by  him  for  medical  attendance, 
should  be  affirmed.  (U.  S.  v.  Jones,  18  How., 
92;  see  also  note  to  sees.  236  and  285,  R.  S.; 
and  see  note  to  sec.  1558,  R.  S.,  under  "Main- 
tenance, attaches.") 

The  act  of  March  3,  1835,  chapter  27,  section 
2,  provided  that  "the  yearly  allowance  pro- 
vided in  this  act  is  all  the  pay,  compensation, 
and  allowance  which  shall  be  received  under 
any  circumstances  whatever  by  any  such  offi- 
cer," etc.  (See  sec.  1558,  R.  S.)  The  Secre- 
tary of  the  Navy  transmitted  to  an  officer  de- 
tached on  special  duty  in  France  a  sum  of 
money  to  be  disbursed  for  medical  attendance 
incurred  by  such  officer.  The  Treasury  De- 
partment held  that  this  was  an  allowance 
prohibited  by  the  law  quoted,  and  charged  the 
amount  so  disbui-sed  by  the  officer,  according 
to  the  orders  of  the  Secretary,  to  the  officer's 
pay  account  and  refused  to  recognize  the  author- 
ity of  the  Secretary  of  the  Navy  in  the  premises. 
Held,  that  the  action  of  the  Secretary  was  con- 


clusive upon  the  accounting  officers  of  the 
Treasury.     (U.  S.  y.  Jones,  18  How.,  92.) 

The  determination  of  the  Secretary  of  the 
Navy  that  expenses  of  an  officer  of  the  Navy 
for  medicines  and  medical  attendance  are  incur- 
red under  circumstances  entitling  him  to  reim- 
bursement is  conclusive.     (2  Comp.  Dec,  241.) 

Where  the  Navy  Department  disapproved  the 
claim  of  an  officer  for  allowance  of  medical  ex- 
penses, the  auditor  correctly  disallowed  the 
officer's  claim.  Thereafter,  the  Secretary  of 
the  Navy  having  reconsidered  his  action,  and 
recommended  allowance  of  the  claim,  although 
the  Surgeon  General  of  the  Navy  still  declined 
to  recommend  the  allowance,  held,  that  this 
action  of  the  Secretary  remove  the  ground  of 
the  auditor's  disallowance,  and  was  binding 
upon  all.     (2  Comp.  Dec,  241.) 

A  claim  for  expenses  incurred  by  an  officer 
of  the  Navy  for  medical  attendance  or  medicines 
must  be  accompanied  by  the  certificate  of  the 
proper  officer  of  the  Navy  Department  to  the 
facts  in  order  that  the  accounting  officers  may 
determine  whether  the  allowance  of  the  claim 
is  prohibited  by  section  1586  of  the  Revised 
Statutes.     (3  Comp.  Dec,  250.) 

Enlisted  men. — An  enlisted  man  of  the 
Navy  is  not  entitled  to  medical  treatment  at 
public  expense  while  on  leave  of  absence  or 
furlough.     (19  Comp.  Dec,  382.) 

\^Tlere  an  enlisted  man  of  the  Navy,  while 
serving  a  court-martial  sentence,  as  mitigated 
by  the  Secretary  of  the  Navy,  does  not  forfeit 
his  pay  and  allowances,  but  receives  the  same 
in  full  as  when  in  a  duty  status,  such  enlisted 
man  is  not  entitled  to  dental  treatment  at 
Government  expense  while  so  confined.  The 
general  principle  is  that  where  an  enlisted  man 
in  confinement  under  sentence  of  court-martial 
forfeits  his  pay  and  allowances,  thus  being 
deprived  of  the  means  of  procuring  the  things 
necessary  for  his  health  and  comfort,  the  duty 
devolves  upon  the  Government,  at  its  own 
expense,  to  furnish  them  to  the  destitute 
prisoner;  but  this  does  not  apply  where  pay  of 
the  prisoner  is  not  forfeited.  (17  Comp.  Dec,  552.) 

An  enlisted  man  f urloughed  without  pay  for 
the  unexpired  portion  of  his  enlistment  is 
nevertheless  an  enlisted  man  in  the  Navy,  and 
as  such  is  entitled,  under  the  regulations,  to 
treatment  in  Navy  hospitals.  (File  7657^11, 
Nov.  18,  1916,  and  Feb.  5,  1917;  see  also  note 
to  sec.  1417,  R.  S.,  under  "Enlisted  men 
f urloughed  without  pay. ") 

The  period  of  detention  beyond  the  expira- 
tion of  enlistment  of  an  enlisted  man  of  the 
Navy  undergoing  treatment  in  a  Government 
hospital  is  to  be  considered  as  for  the  con- 
venience of  the  Government,  and  the  enUsted 
man  is  entitled  to  pay  to  and  including  the  date 
of  his  actual  discharge.  (26  Comp.  Dec,  447, 
modifying  26  Comp.  Dec,  128.) 

Students  at  the  Naval  Academy,  desig- 
nated as  midshipmen,  are  officers  of  the  Navy 
within  the  meaning  of  section  1586,  Revised 
Statutes,  and  subject  to  the  same  limitations 
relative  to  the  obtaining  of  medicines  and  medi- 
cal attendance  fi'om  other  sources  than  the 
United  States  as  are  other  officers  of  the  Navy. 
(9  Comp.  Dec,  375.) 

A  clerk  to  a  conunandant  of  a  navy  yard 
is  neither  an  officer,  enlisted  man,  or  marine. 


903 


Sec.  1586. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


anil  the  Secretary  of  the  Navy  is  not  anlhorized,  1 
under  sections  IGl  1  and  48(tS,  Revised  Statutes, 
to  deduct  20  cents  per  month  from  his  pay; 
such  a  clerk  is  not  entitled  to  reimbursement 
for  medicines  and  medical  attendance.  (1 
Comp.  Dec,  280.) 

1 1  IS  the  opinion  of  the  Navy  Department  that 
members  of  the  naval  personnel  who  are  re- 
(jiiired  to  pay  20  cents  monthly  to  the  Navy 
hospital  fund  should  be  entitled  to  medical 
attendance  and  maintenance,  or,  in  the  absence 
thereof,  reiml)ursement  for  the  amount  ex- 
pended for  the  ])urpose;  and,  conversely,  that 
any  member  of  the  naval  personnel  who  is  not 
entitled  to  medical  supplies  or  reimbursement 
therefor  should  not  be  required  to  pay  20  cents 
monthlv  to  the  hospital  fund.  (See  1  Comp. 
Dec,  280,  290.1 

An  officer  of  the  Marine  Corps  injured 
while  enpiaged  in  an  unusual  and  dant^erous 
amusement  is  not  entitled  to  reimbursement 
for  medical  expenses  incurred  by  him  by  reason 
of  such  injuries,  notwithstandinjT  that  at  the 
time  he  was  in  a  duty  status  as  distinguished 
from  being  absent  with  leave  or  %vithout  leave. 
(10  romp/ Dec,  63.5.) 

Officer  on  sick  leave. — Section  1586,  Re- 
Adsed  Statutes,  prohibits  the  payment  of  medi- 
cal expenses  of  an  officer  incurred  while  on 
sick  leave.    (12  Comp.  Dec,  28.) 

Accounts  for  medical  attendance  by  the 
private  physicians  of  officers  or  soldiers  while  on 
leave  of  absence  have  never  been  allowed. 
(5  Comp.  Dec,  363.) 

If  an  officer  or  soldier  chooses  to  put  himself 
out  of  the  reach  of  medical  attendance  which 
the  government  has  provided  in  hospitals,  etc., 
he  can  not  place  the  Government  under  obliga- 
tions to  pay  any  expense  he  may  incur  for  med- 
ical attendance.     (5  Comp.  Dec,  363.) 

See  also,  above,  under  "enlisted  men." 

Officer  residing  at  distance  from  sta- 
tion.— ^^^lere  an  officer  of  the  Navy  places  him- 
self away  from  his  regular  station  for  his  o\\ti 
convenience  and  comfort,  so  that  the  medical 
department  at  the  station  is  not  available  for 
his  treatment  in  case  of  illness,  such  officer  can 
not  be  reimbursed  any  expense  incurred  by 
him  for  private  medical  attendance  or  for  medi- 
cal supplies.     (17  Comp.  Dec,  472.) 

When  an  officer  takes  up  his  residence  out- 
side and  so  far  away  as  to  render  it  inconvenient 
or  impracticable  for  a  naval  medical  officer  to 
attend  him,  the  Government  is  under  no  obli- 
gation to  pay  for  the  employment  of  a  private 
physician  or  for  medicines.  (5  Comp. Dec,  363.) 

Naval  medical  officer  available. — Where 
the  attendance  of  an  Army  surgeon  could  be 
procured,  the  Government  is  not  liable  for  the 
expenses  of  a  sick  oflicer  in  a  private  hospital, 
though  he  was  carried  there  involuntarily  and 
though  his  accotmt  was  approved  by  the  Sur- 
geonGeneral.    (Prestcm -j'.U.S.,  37  Ct.  Cls.,  39.) 

Section  1586  prohibits  the  allowance  of  a 
physician's  claim  for  attendance  upon  an  officer 
of  the  Navy  for  any  time  after  the  services  of  a 
naval  surgeon  have  been  pro^'ided  and  tendered 
to  the  officer.     (3  Comp.  Dec,  2.50.) 

Special  treatment. — Payment  of  expenses 
incurred  by  an  officer  of  the  Navy  for  medical 
attendance  while  in  a  duty  status  may  be 
authorized,  notwithstanding  the  attendance  of 


a  medical  officer  of  the  Navy  could  have  been 
had,  if  in  the  judgment  of  the  NaAy  Department 
the  available  medical  officers  of  the  Navy  were 
not  sufficiently  skilled  to  properly  treat  the 
disease  with  wliich  the  officer  was  afflicted. 
(12  Comp.  Dec,  28.) 

In  cases  of  claims  for  treatment  of  officers  by 
physicians  outside  the  Medical  Corps,  it  is  not 
understood  that  the  law  permits  the  allowance 
of  such  expenses  when  incurred  upon  the  mere 
volition  of  the  officer  who  seeks  the  treatment 
and  which  was  in  his  judgment  necessary;  but 
such  treatment  by  doctors  outside  the  ^tedical 
Corps  in  serious  cases  requiring  special  treat- 
ment, and  where  medical  officers  are  actually 
available,  should  l)e  under  the  orders  and 
direction  and  control  of  the  medical  establish- 
ment of  the  department,  and  the  claim  for  the 
expenses  ap])roved  bv  the  Secretarv  of  the 
Navy.     (12  Comp.  Dec,  28.) 

Private  sanitarium. — WTiere  by  proper 
authority  an  officer  of  the  Navy  was  removed 
to  a  private  sanitarium  for  treatment,  there 
being  no  naval  hospital  to  which  he  could  be  sent 
with  safety,  payment  for  medicines,  care,  main- 
tenance, and  medical  attendance  upon  such 
officer  while  in  said  sanitarium  is  authorized. 
(9  Comp.  Dec,  761.) 

Dental  treatment. — An  officer  of  the  Naw 
may  be  reimbursed  the  expenses  of  dental 
treatment  when  such  treatment  is  of  a  surgical 
nature  required  for  repairing  an  injury  to  the 
teeth  resulting  from  an  accident  while  in  the 
performance  of  duty,  provided  it  is  shown  that 
the  services  of  a  naval  dental  officer  or  of  a 
naval  medical  officer,  properly  qualified  and 
equipped,  were  not  available.  (21  Comp. 
Dec.  624.) 

Prior  to  the  act  of  August  22,  1912  (37  Stat., 
344),  authorizing  the  establishment  of  a  Dental 
Corps  in  the  Navj^,  no  proAision  was  made  for 
furnishing  dental  ser\ace  to  the  personnel  of 
the  Navy.  Medical  attendance,  however,  has 
been  furnished  for  years,  not  only  through  the 
officers  of  the  Medical  Corps  and  the  hospitals 
provided  and  maintained  for  that  purpose,  but 
the  employment  of  private  physicians  and 
hospitals  in  certain  cases  has  been  authorized 
where  the  regular  medical  officers  and  naAal 
hospitals  were  not  available.  (19  Comp.  Dec, 
5.50.) 

Medical  attendance  -within  the  meaning  of  the 
laws  and  regulations  relating  to  the  Navy  has 
not  been  construed  to  include  dental  treatment. 
(19  Comp.  Dec,  550.) 

By  act  of  August  22,  1912,  the  Government 
has  undertaken  to  furnish  dental  treatment  to 
the  personnel  of  the  naval  service,  but  only  in 
the  manner  and  to  the  extent  therein  provided. 
Neither  said  act  nor  any  other  law  makes  pro- 
vision for  the  employment  of  ci\dlian  dentists; 
and  Congress  has  made  no  appropriation  for 
such  purpose.  Accordingly,  held,  that  ciA^lian 
dentists  can  not  legally  be  employed  where 
naval  dental  officers  are  not  available.  (19 
Comp.  Dec,  550.) 

See  also  above,  under  "Enlisted  men." 
For  other  cases,  see  notes  to  sections  1579, 
Revised  Statutes,  under  "Temporarily  in  hos- 
pital"; and  to  section  1571,  Re\ised  Statutes, 
under  "Officers  temporarily  absent  from  their 
ship." 


904 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1587. 


Sec.  1587.  [Funeral  expenses.]  No  funeral  expense  of  a  naval  officer  who 
dies  in  the  United  States,  nor  expenses  for  travel  to  attend  the  funeral  of  an 
officer  who  dies  there,  shall  be  allowed.  But  when  an  officer  on  duty  dies  in  a 
foreign  country  the  expenses  of  his  funeral,  not  exceeding  his  sea-pay  for  one 
month,  shall  be  defrayed  by  the  Government,  and  paid  by  the  paymaster 
upon  whose  books  the  name  of  such  officer  was  borne  for  pay. —  (15  July,  1870, 
c.  295,  s.  17,  V.  16,  p.  334.) 

of  the  recent  explosion  on  the  United 
States  steamship  Missouri,  to  be  expended 
at  the  discretion  of  the  Secretary  of  the 
Navy'." 

Section  1587,  construed. — An  officer  of 
the  Navy  is  not  entitled  to  mileage  or  reim- 
bursement of  traveling  expenses  for  travel 
performed  in  obedience  to  an  order  directing 
him  to  attend  the  funeral  of  an  officer  who  died 
in  the  United  States.     (11  Comp.  Dec,  181.) 

By  act  of  July  15,  1870  (now  sec.  1587,  R.  S.), 
the  allowance  of  funeral  expenses  of  a  naval 
officer  who  died  in  the  United  States  is  pro- 
hibited; but  such  expenses  are  allowable  where 
the  officer  died  in  a  foreign  country,  to  an 
amount  not  exceeding  his  sea  pay  for  one 
month.     (13  0p.  Atty.  Gen.,  341.) 

The  fact  that  the  officer  had  started  on  a 
foreign  ser\ace,  but  died  in  a  port  of  the  United 
States  at  which  his  vessel  had  touched,  does 
not  relieve  the  case  from  the  prohibition  of  the 
statute.     (13  Op.  Atty.  Gen.,  341.) 

The  law  makes  the  liability  of  the  Govern- 
ment for  funeral  expenses  to  depend  on  the 
place  where  the  officer  dies  and  not  upon  the 
nature  of  his  service.  (13  Op.  Attv.  Gen., 
341.) 

Section  1587  was  clearly  intended  to  prohibit 
the  payment  of  any  and  all  expense  of  travel 
to  attend  the  funeral  of  a  naval  officer  who  dies 
in  this  country.  There  is  no  exception  or 
reserA'ation  in  the  statute:  it  can  make  no 
difference  in  what  capacity  the  officer  attends 
the  funeral,  whether  in  connection  with  a 
battalion  of  cadets  or  as  an  indiAidual,  the 
prohibition  is  equally  effective  and  the  ex- 
pense can  not  be  allowed.  (11  Comp.  Dec, 
181.) 

An  officer  of  the  Navy  who  died  while  on 
duty  on  the  high  seas  must  be  regarded  as  hav- 
ing died  in  a  foreign  country  within  the  mean- 
ing of  section  1587,  ReA-ised  Statutes;  and  pay- 
ment of  his  funeral  expenses,  not  to  exceeclone 
month's  sea  pav,  is  authorized  bv  that  section. 
(6  Comp.  Dec,'  620.) 

Officers  of  the  NaAy  ordered  for  duty  in  con- 
nection -with  the  funeral  of  a  deceased  officer 
are  not  entitled  to  reimbursement  of  expenses 
incurred  bv  them  in  hiring  horses.  (2  Comp. 
Dec,  511.)" 

The  act  of  July  15,  1870  (16  Stat.,  354),  in- 
corporated into  section  1587,  ReAdsed  Statutes, 
repealed  article  1503  of  the  Navy  Regulations 
of  1870,  wherein  it  had  been  attempted  to  pro- 
Aide  that  the  necessary  funeral  expenses  of  all 
persons  who  should  die  in  the  serAice  of  the 
Navy,  whether  in  the  United  States  or  in 
foreign  countries,  should,  when  sanctioned  by 
the  Navy  I)epartment,  be  borne  by  the  Govern- 
ment.    "(3  Comp.  Dec,  154.) 


By  annual  appropriation  acts  for  the  naval 
service,  under  "Bureau  of  ]\iedicine  and 
Sui'gery,"  appropriation  is  made  for  "care, 
transportation,  and  burial  of  the  dead, 
including  officers  who  die  -nithin  the 
United  States,  and  supernumerary  patients 
who  die  in  naval  hospitals."  (See  act 
June  4,  1920,  41  Stat.,  823.) 

By  act  of  June  4,  1920  (41  Stat. ,  823),  appropria- 
tion was  made  "to  enable  the  Secretary  of 
the  Na\^^  in  his  discretion,  to  cause  to  be 
transferred  to  their  homes  the  remains  of 
officers  and  enlisted  men  of  the  Navy  and 
Marine  Corps,  of  members  of  the  Nurse 
Corps,  of  civilian  officers  and  crews  of 
naval  auxiliaries,  and  of  officers  and  en- 
listed men  of  the  Naval  ]\Iilitia  and  Na- 
tional Naval  Volunteers  and  the  Naval 
Reserve  Force  when  on  active  service 
■with  the  Navy,  who  die  or  are  killed  in 
action  ashore  or  afloat,  and  also  to  enable 
the  Secretary  of  the  Navy,  in  his  discretion, 
to  cause  to  be  transported  to  their  homes  the 
remains  of  civilian  employees  who  die 
outside  of  the  continental  limits  of  the 
United  States,"  with  a  proviso  that  said 
appropriation  "shall  be  available  for  pay- 
ment for  transportation  of  the  remains  of 
officers  and  men  who  have  died  while  on 
dutv  at  anv  time  since  April  21,  1898,  and 
shall  be  available  until  June  30,  1922." 

By  act  of  June  4,  1920  (41  Stat.,  832),  appropria- 
tion was  made,  under  "Contingent,  ISIarine 
Corps,"  for  "'funeral  expenses  of  officers 
and  enlisted  men,  and  retired  officers  on 
active  duty  during  the  war  and  retired  en- 
listed men  of  the  Marine  Corps,  including 
the  transportation  of  bodies  and  their  arms 
and  wearing  apparel  from  the  place  of 
demise  to  the  homes  of  the  deceased  in  the 
United  States." 

By  act  of  June  30,  1914  (38  Stat.,  406),  it  was 
provided,  "That  the  Secretary  of  the  Navy 
be  authorized,  at  his  discretion,  to  issue 
free  of  cost  the  national  flag  (United  States 
national  ensign  No.  7)  used  for  draping  the 
coffin  of  any  officer  or  enlisted  man  of  the 
NaAy  or  Marine  Corps  whose  death  occurs 
while  in  the  service  of  the  United  States 
NaA^  or  Marine  Corps,  upon  request,  to  the 
relatives  of  the  deceased  officer  or  enlisted 
man  or  upon  request,  to  a  school,  patriotic 
order,  or  society  to  which  the  deceased 
officer  or  man  belonged." 

By  act  of  April  27,  1904  (33  Stat.,  403),  a  special 
appropriation  was  made  "to  pay  for  the 
funeral  expenses,  including  the  disinter- 
ment, proper  care,  preparation,  and  trans- 
portation to  their  homes  of  the  remains  of 
the  officers  and  men  who  died  as  the  result 


905 


Sec.  1588. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


Officers  of  Marine  Corps — Payment  of  the 
cast  of  traiiHportinc:  the  remains  of  a  deceased 
officer  of  tlie  Marino  Corps  from  the  Island  of 
Gnam.  where  he  died,  to  Mobile,  Ala.,  is  not 
authorized.     (G  Oonip.  r>ec.,  677.) 

Section  15S7  has  been  construed  as  not  ap- 
plicable to  ofiicers  of  the  Marine  Corps.  Also, 
the  ai)propriations  made  for  "funeral  expenses 
of  marines"  have  been  construed  as  referring 


only  to  enlisted  men.  (6  Comp.  Dec,  677. 
But  see  appropriations  quoted  above,  under 
this  section . ) 

Enlisted  man  fui-loughed  -without  pay — 
The  Navy  Department  is  not  authorized  to 
defray  the  1)urial  expenses  of  an  enlisted  man 
who  died  while  furloughed,  without  pay, 
under  the  act  of  August  29,  1916.  (23  Comp. 
Dec,  504;  see  note  under  sec.  1417,  R.  S.) 


Sec.  1588.  [Pay  of  retired  officers.]  The  pay  of  all  officers  of  the  Navy 
who  have  been  retired  after  forty-five  years'  service  after  reacliing  the  age  of 
sixteen  years,  or  who  have  been  or  may  be  retired  after  forty  years'  service, 
upon  their  own  application  to  the  President,  or  on  attaining  tlie  age  of  sixty- 
two  years,  or  on  account  of  incapacity  resulting  from  long  and  faithful  service, 
from  wounds  or  injuries  received  in  the  line  of  duty,  or  from  sickness  or  ex- 
posure therein,  shall,  when  not  on  active  duty,  be  equal  to  seventy-five  per 
centum  of  the  sea-pay  provided  by  this  chapter  for  the  grade  or  rank  which 
they  held,  respectively,  at  the  time  of  their  retirement.  The  pay  of  all  other 
officers  on  the  retired  list  shall,  when  not  on  active  duty,  be  equal  to  one-half 
the  sea-pay  provided  by  this  chapter  for  the  grade  or  rank  held  by  them, 
respectively,  at  the  time  of  their  retirement. —  (15  July,  1870,  c.  295,  s.  5,  v.  16, 
p.  333.     3  Mar.,  1873,  c.  230,  s.  1,  v.  17,  p.  555.) 


s. 

Amendment  to  this  section  was  made  by  act 
of  May  30,  1908  (35  Stat.,  501),  providing 
that  "in  computing  the  pay  of  retired 
officers  of  the  Navy,  the  10  per  cent  addi- 
tional pay  allowed  for  sea  duty  or  for 
shore  duty  beyond  the  continental  limits 
of  the  United  States  shall  not  be  inducted  " ; 
by  act  of  May  13,  1908  (35  Stat.,  128),  pro- 
^'iding  that  any  officer  retired  on  his  own 
application,  after  30  years'  service,  shall 
receive  "  three-fomths  of  the  highest  pay 
of  his  grade";  by  act  of  August  29,  1916 
(39  Stat.,  579),  fixing  the  age  of  retirement 
at  64  years,  excei)t  in  the  cases  of  captains, 
commanders,  and  lieutenant  commanders 
who  become  ineligible  for  promotion  on 
account  of  age  (56,  50,  or  45  years,  respec- 
tively), who  shall  be  retired  at  said  ages 
"on  a  percentage  of  pay  equal  to  two  and 
one-half  per  centum  of  their  shore  duty  pay 
for  each  year  of  service,"  their  total 
retired  pay,  however,  not  to  exceed  75  per 
cent  of  the  shore-duty  pay  they  were 
entitled  to  receive  while  on  the  active  list; 
and  by  act  of  August  22, 1912  (37  Stat.,  328), 
providing  that  any  officer  to  whom  it  ap- 
plied should  receive  "three-fourths  the  sea 
pay  of  the  grade  from  which  he  is  retired." 

Retirement  of  officers  with  the  rank  and  pay  of 
agrade higher  than  thatheld  l)y  them  on  the 
active  list  at  date  of  retirement  is  author- 
ized by  the  following  laws:  Acts  of  March 
3,  1899,  section  11  (30  Stat.,  1007),  .Time 
29,  1906  (34  Stat.,  554),  and  March  3,  1909 
(35  Stat.,  753),  on  accoimt  of  civil  war  serv- 
ice; act  of  March  4,  1911  (36  Stat.,  1267), 
on  accouxit  of  failing  physically  for  promo- 
tion, due  to  disability  incurred  in  line  of 
duty,  which,  imder  acts  of  August  29,  1916 
(39  Stat.,  579),  and  July  1,  1918  (40  Stat., 
118),  shall  not  apply  to  officers  of  the  rank 
of  lieutenant  commander  and  above;  sec- 
tion 1481,  Revised  Statutes,  relating  to  staff 


reaching 
which  laws  are  no  longer  in 


officers  retired  after  specified  length  of  serv- 
ice; and  by  section  1473,  Revised  Stat- 
utes, and  laws  noted  under  section  421, 
ReAised  Statutes,  relating  to  chiefs  of 
biu"eaus. 

See  note  to  section  1444,  Revised  Statutes, 
imder  ' '  Historical  note, "  as  to  laws  relating 
to  the  retirement  of  officers  ' '  after  forty-five 
years'  8er\-ice  after  reaching  the  age  of 
sixteen  years, 
effect. 

The  pay  of  officers  on  the  retired  list,  ^Tay  13, 
1908,  was,  under  the  act  of  that  date  (35 
Stat.,  128),  fixing  new  rates  of  pay  for 
officers  of  the  Navy,  to  be  based  on  the  pay 
therein  provided  for  officers  of  correspond- 
ing rank  and  serWce  on  the  active  list. 

The  rank  and  pay  of  officers  on  the  retired  list 
was  to  be  the  same  that  they  are  when 
such  officers  shall  be  retired,  according  to 
a  clause  in  the  act  of  August  5,  1882  (22 
Stat.,  286),  which  also  prohibited  promo- 
tion or  increase  of  pay  on  the  retired  list. 

Theactof  July  1,  1918(40Stat.,  717),  authorized 
the  promotion  of  any  officer  on  the  retired 
list,  employed  on  active  duty  in  time  of 
war  or  national  emergency,  "to  the  grade 
or  rank,  not  above  that  of  lieutenant  com- 
mander in  the  Na\^  or  major  in  the  Marine 
Corps,"  which  the  total  active  service  of 
such  officer,  both  prior  and  subsequent  to 
retirement,  in  the  manner  rendered  by 
him,  would  have  enabled  him  to  attain  in 
due  com'se  of  promotion  had  such  service 
been  rendered  continuously  on  the  active 
list  dming  the  "period  of  time  last  past," 
and  provided  that  officers  so  promoted  to 
such  higher  grade  or  rank  "shall  thereafter 
receive  the  pay  and  allowances  thereof." 

TheactofJimelO,  1896  (29  Stat.,  361),  provided 
that  no  payment  shall  be  made  from 
ap]3ro])riations  made  by  Congress  to  any 
officer  in  the  Navy  on  the  retired  list  while 


906 


The  Navy. 


Pt.  £.  REVISED  STATUTES. 


Sec.  1588. 


such  officer  is  employed  by  any  person  or 
company  furnishing  naval  supplies  or  war 
material  to  the  Government. 

Pay  based  on  "grade"  at  time  of  retire- 
ment.— The  "grade"  of  an  officer  in  the  Navy 
is  his  official  station,  by  which  are  regulated 
his  powers,  duties,  and  pay.  His  pay  may  1)8 
further  governed  by  his  time  of  service  within 
a  grade,  either  in  fact  rendered  within  the  grade 
or  constructively  performed  therein  through 
the  force  of  statutes.  (Roget  i;.  U.  S.,  148  U.S., 
167,  171.) 

The  office  of  professor  of  mathematics  is  a 
grade.     (Roget  v.  V.  S.,  148  U.  S.,  167,  171.) 

The  periods  of  five  years'  ser\ice  mentioned 
in  Re\ised  Statutes,  section  1556,  for  increase 
of  pay,  are  "grades"  within  the  meaning  of 
section  1588,  fixing  the  pay  of  retired  officers  at 
75  per  cent  of  the  sea  pay  of  the  grade  or  rank 
held  at  the  time  of  retirement.  (Thornley  v 
U.  S.,  18  Ct.  Cls.,  Ill;  113  U.  S.,  310.) 

The  word  "grade"  in  section  1588  refers  to 
the  di^isions  of  officers  into  five  years'  periods 
of  serAice.  An  officer  retired  in  the  thii-d  period 
of  five  years'  ser\-ice  is  entitled  to  75  per  cent 
of  the  sea  pay  of  that  grade,  and  not  to  75  per 
cent  of  the  highest  pay  of  a  chief  engineer  who 
has  served  o^'er  20  years.  (Rutherford  v.  U. 
S.,  18  Ct.  Cls.,  339.) 

In  the  Na\'y  there  are  grades  for  duty,  for 
honor,  and  for  pay,  some  by  name  and  others  by 
description.  A  lieutenant  has  the  gi-ade  of  his 
class,  and  also  a  grade  in  his  class  upon  which 
his  pay  is  fixed,  depending  upon  length  of 
serA-ice.  The  word  "grade"  in  section  1588 
refers  to  the  diAT-sion  of  officers  into  periods  of 
eer^ice.  A  lieutenant  retired  in  the  first  five 
years  of  service,  because  not  recommended  for 
promotion,  is  entitled  to  one-half  of  his  sea 
pay  at  the  time  of  retirement,  and  no  more. 
(McClure  V.  U.  S.,  18  Ct.  Cls.,  347.) 

' '  Grade  "  and  ' '  rank  "  are  used  synonymously 
in  section  1588;  the  word  "gi'ade"  is  used  by 
Congress  as  a  general  term,  indicating  any 
marked  distinction  fixed  by  law  among  officers 
which  would  be  expressed  in  their  commission, 
title,  or  pay,  not  excluding  chiefs  of  bureaus 
having  a  certain  rank.  (31  Op.  Atty.  Gen., 
505,  holding  that  an  officer  retired  while  serving 
as  chief  of  bureau  in  the  Navy  Department,  or 
Judge  Advocate  General  of  the  Navy,  is  entitled 
to  the  rank  attached  by  law  to  such  office.) 

For  other  cases,  see  notes  to  sections  421, 
1362,  1457,  and  1480,  Revised  Statutes,  relating 
to  definition  of  the  word  "grade." 

Pay  based  on  higher  grade  than  that 
held  on  active  list. — Under  section  11  of  the 
Navy  personnel  act  of  March  3,  1899,  an  officer 
retired  on  September  26,  1899,  was  entitled 
to  the  advancement  therein  authorized  on  the 
date  of  his  retirement,  and  not  on  the  date  of 
the  department's  notice  to  him  of  November  26, 
1907.     (26  Op.  Atty.  Gen.,  599.) 

Mates  whose  names  are  borne  on  the  retired 
list  of  officers  of  the  Navy  in  accordance  with 
the  act  of  August  1,  1894  (28  Stat.,  212),  are 
officers  of  the  Navy  and  are  placed  upon  the 
same  footing  as  warrant  officers  under  the  act 
of  June  29,  1906  (34  Stat.,  554),  which  entitles 
such  mates,  otherwise  eligible,  to  the  rank  and 
retired  pay  of  the  next  higher  grade  in  the 


service,  viz,  that  of  the  lowest  grade  of  warrant 
officers.     (26  Op.  Atty.  Gen.,  433,  599.) 

A  captain  in  the  Navy  who  had  served 
during  the  civil  war,  and  was  retired,  pur- 
suant to  section  1444  of  the  Revised  Statutes, 
with  the  rank  and  three-quarters  of  the  sea  pay 
of  the  next  higher  grade  in  accordance  with 
section  11  of  the  Navy  personnel  act  of  March 
3,  1899,  was  entitled  only  to  the  pay  of  rear 
admiral  of  the  lower  nine.  Under  section  11 
he  passes  on  retirement  into  and  not  over  the 
next  pay  grade,  wliich  is  that  of  the  nine  lower 
numbers,  the  rank  of  rear  admiral  being  divided 
into  two  pay  grades.  (Gibson  v.  U.  S.,  194  U. 
S.,  182.) 

The  Navy  personnel  act  of  March  3,  1899, 
section  13,  makes  no  distinction  in  the  rank 
of  rear  admirals,  but  does  in  theu-  pay;  and  the 
provision  of  section  11  of  that  act,  which  author- 
izes the  retirement  of  certain  officers  with  the 
rank  and  retired  pay  "of  the  next  higher 
grade, "  must  be  interpreted  with  reference  to 
that  distinction.  Accorchngly,  held,  that  a 
captain  on  the  active  list,  retired  under  section 
11  with  the  retii'ed  pay  of  the  next  higher  grade, 
was  entitled  only  to  the  retu-ed  pay  of  rear 
admiral  of  the  lower  half.  Pay  and  not  rank 
is  the  paramount  purpose  of  the  law,  and  the 
grades  of  pay  must  therefore  be  regarded  as  of 
paramouJit  importance.  (Lowe  v.  U.  S.,  38 
Ct.  Cls.,  170.)_ 

A  mate  retired  as  a  master  (now  lieutenant, 
junior  gi'ade)  in  1871  should  be  credited  under 
the  naval  appropriation  act  of  March  3,  1883 
(22  Stat.,  493),  v\ith  his  actual  service  as  mate, 
as  of  the  time  when  he  was  retired;  held,  there- 
fore, that  he  is  entitled  to  the  pay  of  a  master 
retii'ed  in  the  second  five  years  of  service. 
(Bradbury  t'.  U.  S.,  20  Ct.  Cls.,  187.) 

An  officer  who  qualified  and  was  nominated 
by  the  President  for  promotion  to  the  grade  of 
rear  admiral  to  fill  a  vacancy  occurring  Feb- 
ruary 18,  1886,  but  who  was  retired  on  account 
of  age  prior  to  his  confirmation  by  the  Senate, 
may,  if  subsequently  confirmed,  be  commis- 
sioned as  a  rear  admiral  with  rank  from  date 
of  v^acancy  and  with  the  retired  pay  of  that 
grade.  (18  Op.  Atty.  Gen.,  393.) 

The  act  oi  March  4,  1911  (36  Stat.,  1267), 
which  provides  that  if  an  officer  of  the  Navy 
should  fail  in  his  physical  examination  for  pro- 
motion, and  be  found  incapacitated  for  service 
by  reason  of  physical  disability  contracted 
in  the  line  of  duty,  he  shall  be  retired  with  the 
rank  to  which  his  seniority  entitled  him  to  be 
promoted,  does  not  authorize  retirement  with 
a  higher  rank  than  that  the  officer  would  have 
had  if  he  had  successfully  passed  his  examina- 
tion; and  the  rank  with  which  the  officer  is  to 
be  retired  is  not  determined  by  the  date  of  the 
action  of  the  retiring  board.  (Tappan  v.  U. 
S.,  54  Ct.  Cls._,  76.) 

A  captain  in  the  Navy  became  due  for  pro- 
motion by  seniority  to  rear  admiral;  he  failed 
in  his  physical  examination,  because  of  disa- 
bility incurred  in  the  line  of  duty;  subsequent- 
ly he  was  retired  in  consequence  of  the  action 
of  a  retiring  board.  Had  he  qualified  for  pro- 
motion he  would  have  been  commissioned  as  a 
rear  admiral  on  the  active  list,  and  would  have 
been  in  the  lower  half  or  second  nine  of  the 


54641°— 22- 


-58 


907 


Sec.  1588. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


gra<lo  of  roar  admiral.  ITowover,  before  his 
retiroinont  his  seniority  would  have  placed 
him  in  the  upper  half,  or  first  nine,  of  the  grade 
of  rear  admiral  had  he  qualified  and  been  com- 
missioned, lie  was  retired  with  the  rank  of 
rear  admiral,  pursuant  to  the  act  of  March  4, 
1911  {M  Stat.,  12G7),  and  received  the  retired 
pay  of  a  rear  admiral  of  the  second  nine.  Held, 
that  he  was  correctly  paid  as  a  rear  admiral  of 
the  second  nine;  that  his  rank  and  position  on 
the  retired  list  are  not  determined  by  the  date 
of  the  action  of  the  retiring  board;  and  the  fact 
that  after  he  became  due  for  promotion,  and 
prior  to  his  retirement,  his  name  was  borne  on 
the  Navy  Register  as  a  rear  admiral  on  the 
active  list,  "subject  to  examination  and  con- 
firmation," did  not  make  him  such,  but  indi- 
cated simply  that  he  was  eligible  to  become  a 
rear  admiral.     (Tappan  v.  U.  S.,  54  Ct.  (Is.,  76.) 

Effect  of  increasing  pay  of  active  list. — 
Section  1588  is  somewhat  ambiguous;  it  does 
not  say  that  each  officer  shall  receive  a  per- 
centage of  the  pay  which  he  was  actually  re- 
ceix'ing  or  entitled  to  receive  at  the  time  of  hia 
retirement,  but  that  he  shall  receive  a  percent- 
age of  the  pay  of  the  "grade  or  rank"  which 
he  then  held.  The  act  of  March  3,  1882  (22 
Stat.,  286),  providing  that  there  shall  be  no 
increase  of  pay  in  the  retired  list  of  the  Navy, 
etc.,  was  intended  to  render  the  pay  of  retired 
officers  fixed  and  certain,  except  as  might 
otherAA-ise  be  specifically  provided  by  Congress. 
The  mere  increase  in  the  pay  of  a  grade  or  rank 
after  the  retirement  of  an  officer  does  not  in- 
crease his  pay  on  the  retired  list.  (Fulman  v. 
V.  S.,  32  Ct.  Cls.,  112.  For  other  cases,  see 
note  to  sec.  1457,  R.  S.,  untier  "General  legisla- 
tion not  applicable  to  retired  officers.") 

The  act  of  August  29,_  1916  (39  Stat.,  581), 
which  had  the  effect  of  increasing  the  pay  of 
chaplains  above  the  rank  of  lieutenant  com- 
mander (see  note  to  sec.  1556,  R.  S.),  resulted 
in  increasing  from  the  date  of  said  act  the  pay 
of  a  chaplain  who  was  retired  in  1910,  notwith- 
standing that  said  act  of  August  29, 1916,  did  not 
in  terms  refer  to  pay  of  officers  on  the  retired 
list.     (26Comp.  Dec.,270.) 

The  accepted  principle  is  that  changes  in  the 
permanent  rates  of  pay  for  the  active  list  in  the 
Army  and  Navy,  in  the  absence  of  any  express 
provision  to  the  contrary,  are  applicable  to  the 
retired  list.     (27  Comp.  Dec,  233,  234.) 

liongevity  pay  of  retired  oflScers. — 
Under  sections  1262  and  1263,  Revised  Statutes, 
which  proWde  that  commissioned  officers  of 
the  Army  below  the  rank  of  brigadier  general 
shall  be  allowed  10  per  cent  of  their  current 
yearly  pay  for  each  term  of  five  years'  service, 
the  total  amount  of  such  increase  not  to  exceed 
40  per  cent  of  their  current  yearly  pay,  held, 
that  an  officer  of  the  Army  retired  from  active 
service  is  still  in  the  military  service  of  the 
United  States,  and,  in  addition  to  the  percent- 
age of  the  pay  of  the  rank  on  which  he  was 
retired,  is  entitled  to  the  10  per  cent  allowed 
by  law  for  each  term  of  five  years'  service, 
counting  years  passed  in  the  service  after  retire- 
ment as  well  as  before.  (U.  S.  v.  Tyler,  105 
U.S.,  244.) 

Officers  on  the  retired  list  of  the  Navy  are  not 
entitled  to  longevity  pay  for  time  spent  in  the 
service  after  retirement.    (Thornley  v.  U.  S., 


113  U.  S.,  310;  affirmed,  Brown  v.  U.  S.,  113 
U.S.,  568.) 

The  case  of  United  States  v.  Tyler  (105  U.  S., 
244),  which  held  that  officers  of  the  Army  on 
the  retired  list  were  entitled  to  longeATty  pay, 
does  not  support  the  contention  that  oflicers  of 
the  Navy,  whose  pay  is  fixed  by  different 
statutes,  are  entitled  to  similar  increase.  By 
no  act  since  the  foundation  of  the  Government 
has  Congi'ess  ever  given  longevity  pay  to  officers 
of  the  Navy,  except  those  on  the  active  list; 
and  the  statute  book  is  now  bare  of  any  enact- 
ment which  awards  to  any  officer  of  the  Navy 
not  on  the  active  list  any  increase  of  pay  for 
length  of  service.  The  court  is  not  called  on 
to  explain  why  Congress  should  apply  one  rule 
to  the  officers  of  the  Army  and  another  to  the 
officers  of  the  Navy.  It  is  sufficient  to  say  that 
it  has  clearly  done  so.  If  the  law  is  unequal 
and  unjust,  the  remedy  is  with  Congress  and 
not  ^vith  the  courts.  (Thornley  v.  U.  S.,  113 
U.  S.,  310;  Brownie.  U.  S.,  113 U.  S.,  568.) 

Held,  that  section  13  of  the  Navy  personnel 
act  of  ]\Iarch  3,  1899  (30  Stat.,  1004),  providing 
Army  pay  for  all  commissioned  officers  of  the 
■  line  of  the  Navy  and  of  the  Medical  and  Pay 
Corps,  virtuallv  superseded  the  act  of  August  5, 
1882  (22  Stat.,''286),  providing  that  there  shall 
be  no  increase  of  pay  on  the  retired  list  of  the 
Navy,  so  far  as  relates  to  officers  retired  on  Army 
pay,  and  that  such  officers  retired  on  Army  pay 
are  entitled  to  longe^dty  pay  as  retired  officers 
in  the  same  manner  as  retired  officers  of  the 
Army.     (5  Comp.  Dec,  809,  811.) 

B}^  act  of  March  2,  1903  (32  Stat.,  932), 
relating  to  the  Army,  it  was  provided  that 
"hereafter,  except  in  cases  of  officers  retired  on 
account  of  wounds  received  in  battle,  no  officer 
now  on  the  retired  list  shall  be  allowed  or  paid 
any  further  increase  of  longevity  pay,  and  offi- 
cers hereafter  retired,  except  as  herein  ])ro- 
vided,  shall  not  be  allowed  or  paid  any  further 
increase  of  longevity  pay  above  that  which 
had  accrued  at  date  of  their  retirement. " 

Officers  of  the  Navy  whose  pay  is  assimilated 
to  that  of  officers  of  corresponding  rank  in  the 
Army  by  the  Navy  personnel  act  of  March  3, 
1899,  are  not  entitled  to  increased  retired  pay 
for  length  of  service  after  retirement.  The  pay 
of  officers  of  the  Navy  on  the  retired  list, 
whether  retired  before  or  after  the  act  of 
March  3,  1899,  is  governed  by  the  retirement 
laws  of  the  Navy  and  not  by  those  of  the  Army. 
(15  Comp.  Dec,  767,  citing  Hannum  v.  U.  S., 
43  Ct.  Cls.,  323,  and  overuling  5  Comp.  Dec, 
809,  above  noted.) 

The  plain  meaning  of  section  1588,  Revised 
Statutes,  is  that  the  pay  of  each  retired  officer 
shall  be  three-fourths  of  the  sea  pay  to  which 
he  was  entitled  when  he  was  retired;  to  give 
that  section  a  meaning  which  would  entitle  the 
officers  to  increased  pay  for  every  period  of  five 
years  after  retirement  would  be  legislation  and 
.not  interpretation.  (Thornley  v.  U.  S.,  113 
U.  S.,  310.) 

An  officer  retired  from  active  service,  there- 
after employed  on  active  duty,  and  then  de- 
tached from  such  dutv,  can  not  be  held  to  ha\'e 
been  retired  a  seconct  time  on  the  date  that  he 
was  relieved  from  active  duty.  The  retire- 
ment of  an  officer  is  a  proceeding  that  can  only 
take  place  in  a  prescribed  manner,  and  it  is  not 


908 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1588. 


pretended  that  such  proceeding  occurred  with 
reference  to  this  officer  more  than  once.  (Roget 
V.  U.  S.,  148  U.  S.,  167,  172.) 

The  pay  of  a  retired  officer  of  the  Naw  is 
fixed  by  statute  at  a  certain  percentage  of  the 
active-ser^ice  pay  of  the  grade  hekl  by  him  at 
the  time  of  his  retirement;  and  there  is  noth- 
ing in  the  act  of  March  3,  1883  (22  Stat.,  472), 
to  modify  this  rule.  (Roget  v.  U.  S.,  148  U.  S., 
167.) 

An  officer  of  the  Na^"^^  who  was  retired  in  the 
first  five  years  of  spr\-ice  from  a  rank  ha\'ing 
longe\'ity  pay,  but  who  was  continued  on  active 
duty  until  he  had  passed  into  his  second  five 
years  of  ser\-ice,  is  not  entitled,  under  the  act 
of  March  3,  1883,  to  a  greater  rate  of  pay  after 
active  ser^dce  ceased  than  75  per  cent  of  the  pay 
of  the  grade  or  rank  which  he  held  at  the  time 
of  retirement.     (Roget  v.  U.  S.,  148  U.  S.,  167.) 

The  act  of  July  1,  1918  (40  Stat.,  717,  quoted 
above  under  this  section),  authorizing  the  pro- 
motion of  retired  naval  officers  who  serve  on 
active  duty  during  time  of  war  or  national 
emergency,  pro\'ides  that  officers  so  promoted 
to  higher  grades  "shall  thereafter  receive  the 
pay  and  allowances  thereof. "  This  does  not 
mean  that  upon  relief  from  actiA'e  duty  their 
actiA'e-duty  pay  is  to  continue;  but  means  that 
the  increased  rate  of  pay  that  is  acquired  by 
reason  of  the  promotion  on  the  active  list  is  to 
be  the  rate  upon  which  is  to  be  computed  their 
retired  pav  as  well  as  their  active  dutv  pay. 
(26  Comp.'Dec,  306.) 

Under  the  act  of  July  1,  1918  (40  Stat.,  717), 
where  a  retired  chief  warrant  officer  of  the  Na\'y^ 
is  advanced  in  "pay  grade  "  by  reason  of  active 
serA-ice  performed  both  prior  and  subsequent  to 
retirement,  the  increased  rate  of  pay  acquired 
by  such  promotion  is  the  rate  upon  which  is  to 
be  computed  his  retired  pay.  (26  Comp. 
Dec,  306.) 

Retired  warrant  officers  of  the  Naw  called 
to  active  duty  under  the  act  of  July'  1,  1918 
(40  Stat.,  717),  are  entitled  to  count  their  active 
service  since  retirement  in  determining  their 
right  to  promotion  in  the  various  pay  grades  of 
warrant  officers  as  pro\T.ded  by  section  1556, 
Re\'ised  Statutes,  the  pay  grade  to  which  thus 
promoted  becoming  the  basis  upon  which  their 
retired  pay  subsequent  to  release  from  active 
duty  is  to  be  computed.     (26  Comp.  Dec,  409.) 

Retired  officers  called  to  actlA^e  duty  under 
the  act  of  July  1,  1918  (40  Stat.,  717),  and  tem- 
porarily advanced  in  grade  or  rank,  are  not 
entitled  to  count  their  active  ser\-ice  since 
retirement  in  computing  their  pay  under  such 
temporary  appointments.  (26  Comp.  Dec,  409; 
25  Comp.  Dec,  601;  but  see  Bailey  v.  U.  S.,  53 
Ct.  Cls.,  639,  file  26254-2376:3;  see  also  Jonas 
■y.  U.  S.,  53Ct.  Cls.,  254).  But  such  officers  who 
are  permanently  advanced  in  grade  or  rank  un- 
der other  pro\T-sions  in  the  same  act  are  entitled 
to  count  their  active  service  since  retirement 
for  longe\'ity  increase  of  paA^  (25  Comp. 
Dec,  601.) 

Cause  of  retirement  can  not  be  altered. — 
Where  an  officer  of  the  NaAy  was  retired  under 
section  1454,  Revised  Statutes,  for  incapacity 
not  originating  in  the  line  of  duty,  and  upon  a 
full  re\'iew  of  the  facts  the  Secretary  of  the 
Na%y  found  that  the  causes  of  incapacity  were 
incident  to  the  service,  and  the  officer  was 


accordingly  transferred  by  the  President,  by 
and  with  the  advice  and  consent  of  the  Senate, 
to  the  50  per  cent  retired  pay  list,  in  accord- 
ance with  section  1595,  Re\'ised  Statutes,  and 
later,  by  a  private  act  of  Congress,  was  trans- 
ferred to  the  75  per  cent  pay  list  of  retired 
officers  under  section  1588,  he  can  not  there- 
after be  placed  on  the  retired  list  with  the 
retired  pay  of  one  grade  above  that  actually 
held  by  him  at  the  time  of  his  retirement, 
pursuant  to  the  act  of  June  29,  1906  (34  Stat., 
554),  which  authorized  such  advancement  to 
certain  officers  of  the  Na\'y  retired  on  account 
of  disability  incident  to  the  serAice.  The 
action  taken  in  this  case  did  not  change  the 
fact  that  the  officer  was  retired  for  incapacity 
not  originating  in  the  line  of  duty,  howeA'er, 
erroneous  such  action  may  have  been.  (27  Op. 
Atty.  Gen.,  221;  for  other  cases,  see  note  to 
sec.  14.54,  R.  S.) 

An  officer  was  retired  under  section  3  of  an 
act  approved  Februaiy  21,  1861,  authorizing 
the  retirement  of  officers  of  the  Navy  "proved 
to  be  permanently  incapable  from  physical  or 
mental  infirmity  for  further  serA-ice  at  sea,"  etc 
The  board  in  its  report  expressed  its  opinion 
that  his  disability  "did  not  occur  in  the  line 
of  his  duty."  Under  the  act  cited  it  was  im- 
material whether  his  disability  originated  in 
line  of  duty  or  not.  Accordingly,  the  board's 
opinion  as  to  the  cause  of  the  disability  was 
mere  surplusage.  Subsequently  to  his  retire- 
ment, new  proAisions  were  made  by  an  act 
approved  August  3,  1861,  sections  21,  22,  and 
23,  for  the  retirement  of  officers,  which,  among 
other  things,  diAided  the  causes  for  retirement 
into  disability  incurred  in  the  line  of  duty  and 
disability  proceeding  from  other  causes.  This 
act  did  not  affect  officers  already  on  the  retired 
list.  Thereafter,  by  act  of  March  3,  1873,  em- 
bodied in  section  1588,  ReAised  Statutes,  two 
rates  of  retired  pay  were  established.  Upon 
application  of  the  officer,  the  Secretary  of  the 
INaAy  convened  a  board  in  1876  which  made  a 
further  examination  of  the  cause  of  his  disabil- 
ity, and  reported  that  it  originated  in  the  line 
of  duty ;  and  the  Secretary  of  the  Naw  approved 
this  report  and  directed  that  the  officer  be  re- 
garded as  haAing  been  retired  for  incapacity 
occasioned  while  in  the  line  of  duty.  Held, 
that  the  Secretarj'  of  the  Navy  was  not  author- 
ized by  law  to  submit  the  case  of  this  officer  to 
a  medical  board  for  reexamination  as  to  the 
origin  of  the  disability  for  which  he  was  re- 
tired, and  that  the  Secretary"' s  action,  based  on 
the  report  of  such  board,  was  without  legal 
effect  as  regards  the  cause  for  retirement  in  the 
case  of  said  officer  or  his  right  of  pay;  held, 
further  that  said  officer  was  entitled  only  to 
one-half  sea  pay  under  the  latter  clause  of 
section  1588,  applicable  to  "all  other  officers 
on  the  retired  list."     (17  Op.  Atty.  Gen.,  178.) 

The  act  of  July  1,  1918  (40  Stat.,  717,  quoted 
above),  authorizing  the  promotion  of  retired 
officers  on  active  duty  in  certain  cases,  and 
entitling  such  retired  officers  when  relieved  of 
active  duty  to  the  retired  pay  of  the  rank  or 
grade  to  which  permanently  promoted  during 
such  active  ser\-ice,  does  not  change  the  status 
of  an  officer  who  was  retired  on  furlough  pay 
for  disability  not  incident  to  the  serAice,  nor 
entitle  such'officer  to  a  different  percentage  of 


909 


Sec.  1588. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


pay  than  that  to  which  he  was  entitled  under 
the  law  governing  his  retirement.  (27  Comp. 
Dec,  7S.) 

I'^cir  other  cases,  see  note  to  section  14-54, 
Revised  Statutes,  and  see  note  below,  under 
"Othcer  transferred  from  half-pay  list  to  three- 
qtiarters  pay  list." 

Officers  retired  on  fvu'lough  pay. — See 
section  1")03,  Revised  Statutes. 

Section  15SS,  Revised  Statutes,  does  not  ap- 
ply to  oflicers  retired  on  furlousjli  pay;  their  pay 
18  governed  by  section  1593,  Re\ised  Statutes. 
(Brown  v.  U.  S.,  113  U.  S.,  568.) 

The  act  of  July  15,  1S70  (16  Stat.,  321),  did 
not  alwlish  the  furl()u,e;h  pay  list;  and  an  order 
after  the  passage  of  that  act  retiring  a  naAal 
officer  on  furlough  pay  was  made  in  pursuance 
of  law.  The  statutes  distinguish  between 
officers  on  the  retired  list  and  officers  on  the 
retired  list  on  furlough  pay,  and  this  distinction 
is  preserved  by  the  flevised  Statutes.  Thus 
sectitMis  1588  and  1502  prescribe  rates  of  pay 
for  retired  officers,  and  section  1593  a  different 
rate  for  officers  on  the  retired  list  on  fxirlough 

Eay;  and  section  1594  authorizes  the  President, 
y  and  with  the  achice  and  consent  of  the 
Senate,  to  transfer  any  officer  of  the  "[^axy  on 
the  retired  list  from  the  furlough  to  the  retired 
pay  list.     (Brown  v.  V.  S.,  113  U.  S.,  568.) 

For  other  cases,  see  note  to  section  1593, 
Revised  Statutes;  and  see  note  below,  under 
"Pay  reduced  by  Congress.  " 

Officer  transferred  from  furlough  to  re- 
tired pay  list. — See  note  to  section  1594,  Re- 
\'i8ed  Statutes. 

Where  a  naval  officer  is  transferred,  under 
section  1594,  ReAdsed  Statutes,  from  the  fur- 
lough list  to  the  retired  pay  list,  the  cause  for 
his  retirement  determines  the  rate  of  pay  to 
which  he  is  entitled  under  section  1588.  An 
officer  retired  on  furlough  pay,  from  causes  not 
incident  to  the  service,  can  not,  by  the  action 
of  the  President,  ])e  transferred  to  the  75  per 
cent  retired  pay  list  pro\dded  for  by  the  last- 
mentioned  section,  but  becomes  entitled  to 
only  one-half  pay,  as  pro\'ided  by  section  1588, 
for  officers  retired  for  causes  other  than  those 
entitling  them  to  75  per  cent  of  sea  pay.  (16 
Op.  Atty.  Gen.,  22.) 

A  naval  officer  being  retired  on  furlough  pay, 
under  Re\ised  Statutes  section  1454,  for  in- 
capacity not  the  result  of  any  incident  of  the 
service,  and  being  subsequently  transferred  by 
the  President,  with  the  ad\'ice  and  consent  of 
the  Senate,  from  the  furlough  to  the  retired  pay 
list  under  Revised  Statutes  section  1594,  is 
entitled  thereafter,  under  the  second  clause  of 
section  1588,  when  not  on  active  duty,  to  one- 
half  the  sea  pay  pro\-ided  for  the  grade  or  rank 
held  by  him  at  the  time  of  his  retirement. 
(Potts  v.U.  S.,  125  U.  S.,  173.) 

Officer  transferred  from  half-pay  list  to 
three-quarters  pay  list. — .\.  special  act 
(June  10,  1902,  32  Stat.,  1444)  which  authorized 
the  Secretary  of  the  Navy  to  transfer  an  officer 
on  the  retired  list  "from  the  half-pay  list  to  the 
75  per  cent  list  under  section  1588,  Revised 
Statutes,"  did  not  operate  to  change  his  status 
from  that  of  an  officer  retired  for  incapacity  not 
incident  to  the  ser\dce  to  that  of  an  officer 
retired  for  incapacity  incident  to  the  service. 
Accordingly,    held,    that  a  lieutenant  in   the 


Navy  retired  for  incapacity  which  did  not 
originate  in  the  line  of  his  duty,  on  furlough 
pay,  and  later  transferred  from  the  furloup;h 
pay  list  to  the  one-half  retired  pay  list,  and 
afterward  transferred  by  special  act  of  Congress 
from  the  half-pay  list  to  the  three-fourths  pay 
list,  and  thereafter  nominated  by  the  President 
and  confirmed  by  the  Senate  for  advancement 
to  the  rank  of  lieutenant  commander  on  the 
retired  list,  under  the  act  of  June  29,  1906  (34 
Stat.,  554),  authorizing  such  advancement  in 
the  cases  of  certain  officers  who  had  been 
retired  "on  account  of  wounds  or  disability 
incident  to  the  service,"  was  not  entitled  to 
the  retired  pay  of  a  lieutenant  commander  for 
the  reason  that  his  advancement  to  that  rank 
was  not  authorized  by  the  act  of  June  29,  1906. 
(Morse  v.  U.  S.,  46  Ct.  Cls.,  361,  affirmed,  229 
U.  S.,  208,  following  Potts  v.  U.  S.,  125  U.  S., 
173,  and  Burchard  v.  U.  S.,  125  U.  S.,  176.) 

For  other  cases,  see  note  to  section  1454.  Re- 
^'ised  Statutes. 

Retired  pay  reduced  by  Congress. — 
A  colonel  in  the  Regular  Army,  holding  at  the 
same  time  the  rank  of  brigadier  general  of  Vol- 
unteers, was  retired  by  the  President  from 
active  service  with  the  rank  and  retired  pay  of 
major  general,  pursuant  to  an  act  of  Congress 
of  1866  which  authorized  the  retirement  of 
officers  in  certain  cases  with  a  higher  rank  than 
that  held  by  them  on  the  active  list  at  the 
time  of  retirement.  Later  Congress  provided 
by  an  act  approved  March  3,  1875,  that  a  class 
of  retired  officers,  which  included  this  officer, 
who  were  wounded  in  action,  should  be  "con- 
sidered as  retired  upon  the  actual  rank  held 
by  them,  whether  in  the  regular  or  volunteer 
service,  at  the  time  when  such  wound  was 
received,  and  shall  be  borne  on  the  retired  list 
and  receive  pay  hereafter  accordingly." 
Pursuant  to  this  act  the  President  fixed  the 
rank  of  this  officer  as  that  of  brigadier  general 
from  March  3,  1875,  the  date  of  the  act  last  cited. 
In  behalf  of  the  officer  it  was  contended  that  he 
held  the  office  of  major  general  on  the  retired 
list  of  the  Army  by  appointment  of  the  Presi- 
dent, and  that  Congress  had  no  power  to  remove 
him  from  that  office  and  appoint  him  to  the 
office  of  brigadier  general  on  the  retired  list. 
Held,  that  an  officer  of  any  grade  on  the  active 
list,  appointed  thereto  in  the  manner  required 
by  the  Constitution,  may  be  retired  with  a 
different  rank  from  that  which  belongs  to  his 
office,  when  Congress  so  provides;  that  this  is 
not  the  appointment  of  such  officer  to  a  new 
and  different  office,  but  is  the  transferring  of 
him  to  the  retired  list  and  the  changing  of  his 
rank  while  he  holds  the  same  office;  and  that, 
in  connection  with  this  change  of  rank,  liis  pay 
may  be  changed;  that  in  this  case,  the  retire- 
ment of  the  officer  with  the  rank  of  major  gen- 
eral while  he  held  the  office  of  colonel  in  the 
Army  did  not  confer  on  him  the  office  of  major 
general;  that  he  remained  in  the  office  of 
colonel  and  accjuired  a  higher  rank  and  higher 
pay  as  a  retired  officer;  that  such  rank,  not 
being  an  office.  Congress  could  change  his  rank 
and  with  it  his  pay,  as  it  did  by  the  act  of  1875; 
that  Congress  had  the  same  right  to  change  this 
officer's  rank  and  pay  by  reducing  them  that 
it  has  to  change  the  rank  and  pay  of  another 
officer  by  increasing  them,  the  standard  in  both 


910 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1588. 


cases  being  the  actual  rank  held  by  the  officer 
at  the  time  he  was  wounded ;  that  the  offices  of 
both  were  left  untouched;  and  that  the  pay  of 
retired  officers  is  a  matter  entirely  within  the 
control  of  Congress  and  so  is  thei  r  rank .  ( Wood 
1'.  U.  S.,  107  U.  S.,  414;  15  Ct.  Cls.,  151.) 

A  pro\'i8ion  in  the  Revised  Statutes  reducing 
the  pay  of  a  retired  naval  officer  is  not  affected 
by  the  general  provision  of  the  Revised  Stat- 
utes, section  5597,  that  the  repeal  of  previous 
statutes  by  the  revision  shall  not  affect  acts 
done  or  rights  accrued  under  them,  nor  change 
the  term  or  tenure  of  any  office.  (Magaw  v. 
U.  S.,  16  Ct.  Cls.,  3.) 

Sections  1588,  1590,  and  1593,  Revised 
Statutes,  which  contain  provisions  both  of  a 
general  and  special  character  prescribing  the 
compensation  of  retired  naval  officers  and 
embrace  within  their  scope  all  such  officers, 
whether  of  the  line  or  staff,  superseded  all  pro- 
visions in  force  at  the  adoption  of  the  Revised 
Statutes  by  which  that  compensation  was  pre- 
viously regulated,  and  those  sections  thereafter 
furnished  the  only  law  upon  the  subject. 
Accordingly,  held,  that  an  officer  retired  in  1871 
on  furlough  pay  was  entitled  after  the  enact- 
ment of  tlie  Revised  Statutes  to  only  one-half 
of  leave  of  absence  pay  as  fixed  by  section  1593, 
Revised  Statutes,  although  prior  to  the  enact- 
ment of  the  Revised  Statutes  he  had  been 
entitled  to  one-half  of  the  highest  pay  of  his 
grade,  under  section  5  of  the  act  of  July  15,  1870 ; 
and  said  officer  having  thereafter  been  trans- 
ferred to  the  retired  pay  list  in  accordance  with 
section  1594,  Revised  Statutes,  was  entitled  to 
one-half  sea  pay  as  provided  by  section  1588, 
Revised  Statutes.     (15  Op.  Atty.  Gen.,  316.) 

In  the  absence  of  constitutional  restriction, 
the  future  compensation  of  a  public  officer  may 
be  reduced  at  pleasure  by  the  legislature  during 
his  incumbency,  without  violating  any  legal 
right  vesting  in  him  by  virtue  of  his  appoint- 
ment.    (15  Op.  Atty.  Gen.,  316.) 

Retired  pay  is  salary. — See  note  to  section 
1457,  Revised  Statutes,  under  "Status  of 
retired  officers,  part  of  the  Navy;"  and  "Re- 
tired pay  not 'pension.'  " 

A  retired  naval  officer  is  still  an  officer  of  the 
Navy,  and  his  retired  pay  is  the  equivalent  of 
salary.  When  serving  on  a  board  as  to  which 
a  statute  prescribes,  for  members  who  are  "not 
salaried  officers,"  a  salarv',  and  for  members  who 
are  "salaried  officers,"  their  "actual  necessarv^ 
expenses,"  he  is  entitled  to  the  latter  and  not 
to  the  former.     (Franklin  v.  U.  S.,  29  Ct.  Cls.,  6.) 

Retired  pay  of  mates. — See  note  to  sec- 
tion 1408,  Revised  Statutes;  and  see  note  above 
under  "Pay  based  on  higher  grade  than  that 
held  on  active  list." 

A  mate  in  the  Navy  on  August  1,  1894  (28 
Stat.,  212),  which  pre.scribed  special  rates  of 
pay  for  such  mates  while  on  sea  duty,  shore 
duly,  or  leave  or  waiting  orders,  and  who  was 
retired  on  his  own  application,  after  30  years' 
service,  under  the  act  of  March  3,  1899  (30 
Stat.,  1008),  providing  for  the  retirement  of 
enlisted  men  and  petty  officers  with  75  per 
cent  of  the  "pay  and  allowances"  of  the  rank 
or  rating  upon  which  retired,  was  entitled  to 
such  percentage  of  the  sea  pay  which  he  was 
receiving  at  the  time  of  his  retirement.  Section 
1588,  Revised  Statutes,  entitling  officers  to  75 


per  cent  of  sea  pay  on  retirement,  was  not  re- 
pealed by  the  saidact  of  1899,  which  was  silent 
as  to  the'kind  of  pay  which  a  petty  officer  shall 
receive  on  retirement.  (Creighton  v.  U.  S., 
37  Ct.  Cls.,  327.) 

Retirement  under  a  special  act  of  Con- 
gress.— An  act  of  February  16,  1897,  provided 
for  the  reappointment  of  John  N.  Quackenbush, 
late  a  commander  in  the  United  States  Navy,  to 
the  grade  and  rank  of  commander  as  of  the  date 
of  August  1,  1883,  and  that  the  said  Quacken- 
bush be  placed  on  the  retired  list  of  the  Navy 
as  of  the  date  of  June  1,  1895:  ''Provided,  That 
he  shall  receive  no  pay  or  emoluments  except 
from  the  date  of  such  reappointment."  Held, 
first,  that  the  only  apparent  office  of  the  proviso 
was  to  forbid  the  allowance  of  pay  or  emolu- 
ments from  August  1,  1883,  by  limiting  such 
allowance  to  the  date  of  reappointment,  which 
in  that  view  must  be  regarded  as  the  date  of 
appointment  under  the  act;  second,  that  it  was 
remedial  in  its  character,  and  should  be  con- 
strued as  ratifying  prior  payments  which  the 
Government  in  its  counterclaim  was  seeking 
to  recover  back.  If  it  had  not  been  for  the 
proviso,  the  effect  of  the  appointment  would 
have  been,  in  addition  to  fixing  his  status,  as  to 
grade  and  rank,  as  of  August  1,  1883,  to  entitle 
him  to  pay  from  that  date,  but  not  to  pay  prior 
thereto.  The  date  of  reappointment  was  the 
date  when  it  was  actually  made,  and  to  substi- 
tute the  date  to  which  the  appointment  related 
for  the  actual  date  would  defeat  the  obvious 
object  of  the  proviso,  which  was  to  narrow  the 
effect  of  giving  the  reappointment  a  retroactive 
operation.  It  was  allowed  that  effect  as  to  grade 
and  rank,  but  not  as  to  current  pay  or  emolu- 
ments.    (Quackenbush  v.  U.  S.,  177  U.  S.,  20.) 

For  other  cases,  see  note  to  section  1457, 
Revised  Statutes,  under  '•\\Tien  retirement  or 
advancement  on  retired  list  takes  effect." 

OflS.cer  wholly  retired  from  the  service. — 
See  note  to  section  1454,  Revised  Statutes. 

There  is  a  manifest  difference  in  the  two 
kinds  of  retirement,  namely,  retiring  from 
active  service,  and  retiring  wholly  from  the 
service.  In  the  latter  case  such  reward  or 
compensation  as  Congress  thought  proper  to 
bestow,  namely,  one  year's  pay  and  allowances, 
in  addition  to  what  was  previously  allowed,  is 
given  at  once,  and  the  connection  is  ended; 
in  the  former  case  the  compensation  is  con- 
tinued at  a  reduced  rate  and  the  connection  ie 
continued,  with  a  retirement  from  active  serv^- 
ice  only.     (U.  S.  v.  Tyler,  105  U.  S.,  244.) 

OflB.cer  retired  because  not  recom- 
mended for  promotion.^See  act  of  March  4, 
1911  (36  Stat.,  1267),  and  amendatory  statutes, 
quoted  above,  under  this  section. 

An  officer  retired  in  the  first  five  years  of 
service,  because  not  recommended  for  pro- 
motion, is  entitled  to  one-half  of  his  sea  pay  at 
the  time  of  retirement,  and  no  more.  (McClure 
V.  U.  S.,  18  Ct.  Cls.,  347.) 

Irregularities  in  retirement. — The  ad- 
ministrator of  a  retired  naval  officer  can  not, 
in  order  to  recover  from  the  United  States  an 
increase  in  the  compensation  of  his  intestate, 
take  advantage  of  an  alleged  defect  in  the  pro- 
ceedings by  which  he  was  retired  and  which  he 
acquiesced  in  without  objection  duting  hia 
lifetime.     (Brovra  i-.  U.  S.,  113  U.  S.,  568.J 


911 


Sec.  1591. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


All  officer  whrse  name  is  placed  on  the  retired 
list  (if  the  Armv  by  the  Secretary  of  War,  in 
apparent  compliance  with  proAdsions  of  law,  is 
an  cllicer  de  facto  if  not  de  jure,  and  money  paid 
to  liim  as  salary  can  not  be  recovered  back  by 
the  United  States.  (15adeau  v.  U.  S.,  130  U.  S., 
439.') 

Wlien  retired  pay  commences. — See  note 
to  section  1157,  Revised  Statutes,  under,  "when 
retirement  or  advancement  on  the  retired  list 
takes  effect." 

The  retirement  of  a  naval  officer  for  disability 
tinder  section  1453,  Revised  Statutes,  becomes 


effective  only  upon  the  approval  of  the  finding 
of  the  retiring  ooard  by  the  President.  Ac- 
cordingly, the  retirement  of  such  officer  with 
the  higher  rank  on  the  retired  list  to  which  his 
seniority  entitled  him  to  be  promoted  on  the 
active  list,  as  authorized  by  act  of  March  4, 
191 1  (36  Stat.,  i2G7),  can  not  be  made  effective 
prior  to  the  President's  ai)proval  of  his  retire- 
ment, and  his  retired  pay  of  the  higher  rank 
will  date  from  such  approval,  notwithstanding 
that  an  earlier  date  of  rank  is  stated  in  his  com- 
mission.    (27  Comp.  Dec,  512.) 


Sec.  1589.  [Retired  rear  admirals.     Obsolete.] 


This  section  provided  as  follows: 
"Sec.  1589.  Rear-admirals  on  the  retired  list 
of  the  NaAy,  who  were  retired  as  captains 
when  the  highest  grade  in  the  Navy  was  cap- 
tain, at  the  age  of  sixty-two  years,  or  after 
forty-five  years'  serA-ice,  and  who,  after  their 
retirement,  were  promoted  to  the  grade  of  rear- 
admiral,  and  performed  the  duties  of  that  grade 


in  time  of  war,  shall  be  considered  as  haxing 
.  been    retired    as    rear-admirals. " —    (5    June, 
1872,  c.  307,  s.  1,  V.  17,  p.  226.     3  Mar.,  1873,  c. 
230,  s.  1,  V.  17,  p.  555.) 

It  is  rendered  obsolete  by  the  fact  that 
there  are  now  no  officers  in  the  Navy  to  whom 
it  could  apply. 


Sec.  1590.  [Third  assistant  engineers.     Obsolete.] 


This  section  provided  as  follows: 

"Sec.  1590.  Officers  who  haA'e  been  retired 
as  tliird  assistant  engineers  shall  continue  to 
receive  pav  at  the  rate  of  four  hundred  dollars 
a  year."— (3  Mar.,  1859,  c.  76,  s.  2,  v.  11,  p. 
407.  3  Aug.,  1861,  c.  42,  s.  22,  v.  12,  p.  290. 
16  July,  1862,  c.  183,  s.  20,  v.  12,  p.  587.  21 
April,  1864,  c.  63,  s.  7,  v.  13,  p.  54.  15  July, 
1870,  c.  295,  8.  5,  v.  16,  p.  333.) 

The  grade  of  third  assistant  engineer 
was  abolished  on  the  active  list,  by  act  of  July 
15,  1870,  section  6  (16  Stat.,  333),  which  act 
and  section  further  proA-ided  that  "retired 
third  assistant  engineers  shall  continue  to  re- 


ceive the  same  rate  of  pay  they  YiBxe  receiA'ed 
up  to  the  time  of  the  passage  of  this  act. " 
However,  on  the  date  of  the  ReAdsed  Statutes, 
there  were  no  third  assistant  engineers  on  the 
retired  list,  so  that  section  1590  never  had 
any  force  or  effect.  The  last  of  the  third  as- 
sistant engineers  were  Theron  Skeel,  who  was 
retired  as  such  June  22,  1869,  and  resigned 
November  12,  1870;  and  Nicholas  H.  Lamdin, 
who  was  retired  as  third  assistant  enginneer, 
June  22,  1869,  was  restored  to  the  active  list, 
as  second  assistant  engineer,  July  17,  1872,  and 
was  commissioned  as  passed  assistant  engineer 
June  3,  1879. 


Sec.  1591.  [Pay  not  increased  by  promotion.]  No  officer  heretofore  or  here- 
after promoted  upon  the  retired  list,  shall,  in  consequence  of  such  promotion, 
be  entitled  to  any  increase  of  pay. —  (2  Mar.,  1867,  c.  174,  s.  9,  v.  14,  p.  517. 
15  July,  1870,  c.  295,  s.  5,  v.  16,  p.  333.) 


By  act  of  August  5,  1882  (22  Stat.,  286),  it  was 
provided  that  "hereafter  there  shall  be  no 

f)romotion  or  increase  of  pay  in  the  retired 
ist  of  the  Na\y,  but  the  rank  and  pay  of 
officers  on  the  retired  list  shall  be  the  same 
that  they  are  when  such  officers  shall  be 
retired." 

By  act  of  July  1,  1918  (40  Stat.,  717),  the  pro- 
motion was  authorized  of  retired  officers 
employed  on  active  duty  in  time  of  war, 
sucn  promotion  being  permanent  under 
certain  conditions,  and  in  other  cases 
continuing  only  until  the  officer's  relief 
from  active  duty;  in  either  case  the  law 
in  terms  entitled  such  officers  to  the  pay 
of  the  grade  to  which  promoted.  As  to 
retired  enlisted  men  promoted  while  on 
active  duty,  see  notes  to  sections  1569  and 
1592.     Re\ised  Statutes. 

See  sections  1459-1465,  1481,  and  1588,  Re\'ised 
Statutes,  and  notes  thereto,  as  to  promotion 
of  retired  officers. 
Sec.  1591  not  modified  bylaws  relating 

to  active  list. — The  act  of  June  22,  1874  (18 


Stat.,  191),  quoted  under  section  1561,  Revised 
Statutes,  which  provided  that  any  officer  pro- 
moted in  course  to  fill  a  vacancy  "shall  be  en- 
titled to  the  pay  of  the  grade  to  which  promoted 
from  the  date  he  takes  rank  therein,"  etc., 
was  manifestly  designed  to  fix  the  commence- 
ment of  the  increased  pay  of  promoted  officers 
in  active  ser\ice  only,  and  it  in  no  way 
affected  section  1591,  ReAised  Statutes,  which 
thereafter,  as  before,  remained  in  force.  (17 
Op.  Atty.  Gen.,  495.) 

AppUcable  to  all  promotions  on  retired 
list. — Section  1591,  Re\ised  Statutes,  is  applica- 
ble alike  to  officers  promoted  under  section 
1461,  ReAdsed  Statutes,  and  to  those  promoted 
under  section  1460,  as  amended.  (17  Op. 
Atty.  Gen.,  495.) 

The  act  of  August  5,  1882  (22  Stat.,  286), 
above  quoted,  prevents  either  rank  or  pay  of 
officers  on  the  retired  list  from  being  increased 
in  any  way  after  such  officers  shall  have  been 
placed  thereon.     (18  Op.  Atty.  Gen.,  96.) 

0£&cers  promoted  on  retired  list  entitled 
to  increased  pay. — An  officer  was  promoted 


912 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1592. 


on  the  retired  list  from  the  grade  of  lieutenant 
commander  to  that  of  commander,  pursuant  to 
a  special  act  of  Congress,  approved  March  11, 
1902,  which  made  no  express  pro\-ision  for  in- 
creasing his  retired  pay,  but  proA^ded  "that 
the  President  is  hereby  authorized  to  nominate 
to  the  Senate  Lieutenant  Commander  R.  M.  G. 
Brown,  now  on  the  retired  list,  to  be  a  com- 
mander on  the  retired  list. "'  Hdd,  that  under 
said  act  the  oiEcer  on  promotion  was  entitled 
to  the  retired  pay  of  a  commander,  notwith- 
standing the  pro^'isions  of  section  1591  of  the 
Re\'ised  Statutes  and  the  act  of  August  5,  1882, ' 
forbidding  increase  of  pav  on  the  retired  list. 
(Comp.  Dec,  May  3,  1902,  2  S.  and  A.  Memo., 
31.) 

A  chief  engineer  was  advanced  on  the  retired 
list  from  the  rank  of  captain  to  the  rank  of  rear 
admiral,  pursuant  to  a  special  act  of  Congress, 
February  5,  1903,  which  said  nothing  about  any 
increase  in  his  retired  pay,  but  provided  '"That 
Chief  Engineer  DaAid  Smith,  United  States 
NaAy,  retired,  who  served  Avith  credit  through 
both  the  ciA-il  and  Spanish- American  Wars,  and 
who,  in  the  performance  of  duty,  incurred  dis- 
abilities from  exposure,  rendering  him  an  in- 
valid requiring  the  services  of  an  attendant 
ever  since  his  detachment,  February  7,1899,  be 
advanced  on  the  retired  list  from  March  3,  1899, 
to  the  next  higher  grade."'  Held,  that  under 
this  act  the  officer  in  question  became  entitled 
to  three-fourths  the  sea  pav  of  a  rear  admiral  of 
the  lower  half.  (Comp.  Dec,  Mar.  27,  1903, 
22  S.  and  A.  Memo.,  173.) 

Ofi&cers  not  entitled  to  increased  pay  on 
promotion. — An  officer  of  the  Navy  retired  as 
second  assistant  engineer  with  the  rank  of  master 
(now  lieutenant,  junior  grade),  and  thereafter 
promoted  on  the  retired  list  and  commissioned 
as  a  first  assistant  engineer  Avith  the  rank  of 
lieutenant,  under  the  pro\isions  of  section  9  of 
the  act  of  March  2,  1867  (14  Stat.,  517),  did  not 
thereby  become  entitled  to  any  increase  of  paj-, 
such  increase  in  pav  being  forbidden  by  the  act 
of  July  15,  1870  (16  Stal.,  333),  now  section 
1591,  Re\T.sed  Statutes.    The  act  of  May  13, 


1908  (35  Stat.,  128),  fixing  new  rates  of  pay  for 
officers  of  the  Na\^,  and  proxiding  that  the 
pay  of  retired  officers  should  be  based  on  the  pay 
therein  fixed  for  officers  of  corresponding  rank 
and  ser^dce  on  the  active  list,  did  not  repeal 
section  1591  so  as  to  entitle  this  officer  to  the 
retired  pay  of  the  rank  of  lieutenant,  to  which 
he  had  been  promoted;  but  merely  entitled  him 
to  compute  his  percentage  of  active-duty  pay 
upon  the  new  rates  of  pay  prescribed  by  said  act 
of  May  13,  1908,  for  the  rank  of  lieutenant 
(junior  grade),  which  was  the  rank  with  which 
he  had  been  retired,  and  upon  which  his  pay 
was  to  be  based  under  section  1588,  Revised 
Statutes.  (Comp.  Dec,  July  28,  1908,  89  S. 
and  A.  Memo.,  6790.) 

Pay  of  oflS^cers  promoted  under  act  of 
July  1,  1918.— The  act  of  July  1,  1918  (40 
Stat.,  717 ),  authorizes  the  permanent  promotion 
of  certain  retired  officers  employed  on  active 
duty  in  time  of  war,  and  entitles  officers  so  per- 
manently promoted  to  a  higher  grade  to  retired 
pay  upon  their  release  from  active  duty  based 
on  the  active  duty  pay  of  the  grade  to  which 
promoted.  (27  Comp.  Dec,  78,  79,  citing  26 
Comp.  Dec,  306,  409.) 

Retired  warrant  officers  of  the  Naw  called  to 
active  duty  in  time  of  war,  under  the  act  of 
July  1,  1918  (40  Stat.,  717),  are  entitled  to  count 
their  active  serAice  since  retirement  in  deter- 
mining their  right  to  promotion  in  the  various 
pay  grades  of  warrant  officers  as  pro\ided  by 
section  1556,  ReAised  Statutes,  the  pay  grade  to 
which  thus  promoted  becoming  the  basis  upon 
which  theii"  retired  pay  subsequent  to  release 
from  active  duty  is  to  be  computed.  (26  Comp. 
Dec,  409.) 

A  commissioned  warrant  officer  advanced  to 
the  pay  grades  of  lieutenant  (junior  grade)  or 
lieutenant,  in  accordance  with  the  act  of  July  1, 
1918  (40  Stat.,  717),  on  account  of  active  duty 
rendered  in  time  of  war,  is  entitled  upon  relief 
from  active  duty  to  have  his  retii-ed  pay  there- 
after computed  upon  the  higher  pay  grade  to 
which  so  permanently  advanced.  (26  Comp. 
Dec,  306.) 


Sec.  1592.  [Pay  on  active  duty.]  Officers  on  the  retired  list,  when  on  active 
duty,  shall  receive  the  full  pay  of  their  respective  grades. — (1  June,  1860,  c. 
67,  s.  5,  V.  12,  p.  27.     2  Mar.,  1867,  c.  174,  s.  9,  v.  14,  p.  517.) 


Active  duty  by  retired  officers  in  time  of  war 
was  authorized  by  sections  1462,  1463,  and 
1464,  ReAdsed  Statutes. 

ActiA'e  duty  for  retired  officers,  with  the  pay 
and  allowances  of  the  grade  from  which 
retired,  was  authorized  by  act  of  June  7, 
1900  (31  Stat.,  703),  which  expired  Ijy  its 
terms  at  the  end  of  12  years  from  date  of  its 
enactment. 

ActiA'e  duty  for  retired  officers,  Avith  their  con- 
sent, Avith  the  pay  and  allowances,  in  time 
of  peace,  of  an  officer  of  the  actiA-e  list  of  the 
same  rank,  not  to  exceed  the  pay  and  allow- 
ances of  a  lieutenant  (senior  grade),  was 
authorized  bv  act  of  Aug.  22,  1912,  37 
Stat.,  329.) 

By  act  of  August  29,  1916  (39  Stat.,  581),  it  was 
proA-ided  that  any  retired  officer  detailed 
to  actiA'e  duty  shall,  Avhile  so  serA-ing,  re- 
ceive the  active-duty  pay  and  allowances 


of  the  grade,  not  aboA-e  that  of  lieutenant 
commander  in  the  NaAy  or  of  major  in  the 
Marine  Corps,  that  he  Avould  haA-e  attained 
in  due  course  of  promotion  if  he  had  re- 
mained on  the  actiA'e  list  for  a  period 
beyond  the  date  of  his  retirement  equal  to 
the  total  amount  of  time  he  has  been 
detailed  to  actiA'e  duty  since  retirement. 
(Act  Aug.  29,  1916,  39  Stat.,  581.) 

By  act  of  April  10, 1018,  section  1  (40  Stat.,  516), 
it  was  proA'ided  that  retired  chief  warrant 
officers,  while  detailed  to  actiA-e  duty, 
shall  be  entitled  to  the  pay  and  allowances 
of  a  lieutenant  (junior  gi'ade),  if  their  total 
service,  actiA'e  and  retired,  since  date  of 
commission  equals  six  years,  and  to  the 
pay  and  allowances  of  a  lieutenant  if  such 
total  serA'ice  equals  12  years. 

By  act  of  April  10,  1918,  section  2  (40  Stat.,  516), 
it  was  provided  that  retired  warrant  officers, 


913 


Sec.  1502. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


while  on  active  duty,  shall  he  entitled  to 
the  i)ay  and  allowances  of  a  lieutenant 
(junior  fjrade),  if  their  total  service,  active 
and  retired,  since  date  of  warrant,  equals 
12  years;  and  to  the  pay  and  allowances  of 
a  lieutenant  if  such  total  service  equals  18 
years. 
By  act  of  July  1,  1918  (40  Stat.,  717),  it  was 
proA-ided  that  retired  commissioned  or  war- 
rant officers  of  the  NaAy  or  Marine  Corps 
ordered  to  active  duty  in  time  of  war  or 
national  emero;ency  shall  be  entitled  to 
promotion  on  the  retired  list  to  the  grade 
or  rank,  not  above  that  of  lieutenant  com- 
mander in  the  Na\'y  or  major  in  the  Marine 
Corps,  and  shall  thereafter  receive  the  pay 
and  allowances  thereof,  which  their  total 
active  servdce  as  officers,  prior  and  subse- 
quent to  retirement,  in  the  manner  ren- 
dered by  them,  would  have  enabled  them 
to  attain  in  due  course  of  promotion  had 
such  service  been  rendered  continuously 
on  the  active  list  diu'ing  the  period  of  time 
last  past. 
By  the  act  of  July  1,  1918  (40  Stat.,  717),  it  was 
pro^'ided  that  retired  commissioned  or 
warrant  officers  of  the  NaAy  or  Marine 
Corps,  while  on  active  duty  during  the 
existence  of  war  or  national  emergency, 
may  be  temporarily  commissioned  in  such 
higher  grade  or  rank  on  the  retired  list,  not 
above  lieutenant  commander  or  major,  as 
the  case  may  be,  as  the  President  may  de- 
termine, and  when  so  advanced,  shall, 
while  on  such  active  duty,  be  entitled  to 
the  same  pay  and  allowances  as  officers  of 
like  grade  or  rank  on  the  active  list;  and 
upon  relief  from  active  duty,  not  later 
than  six  months  after  the  war  or  emergency 
terminates,  shall  revert  to  their  former 
grade  or  rank,  and  pay  and  allowance 
status  on  the  retired  list. 
Detail  of  retired  officers  to  educational  institu- 
tions was  authorized  by  section  1225, 
Revised  Statutes,  as  amended,  and  other 
laws  noted  under  that  section. 
Retired  enlisted  men  on  active  duty. — See  acts 
of  March  3,  1915  (38  Stat.,  941),  August  29, 
1916  (39  Stat.,  591),  and  July  1,  1918  (40 
Stat.,  719);  and  see  note  to  section  1569, 
Re\dsed  Statutes. 
Marine  officers. — Section  1622,  Revised 
Statutes,  simply  provides  for  the  conditions 
precedent  to  the  retirement  of  an  officer  of  the 
Marine  Corps  and  in  no  way  changes  the  juris- 
diction to  which  he  is  subject  or  the  conditions 
under  which  he  may  be  again  placed  on  active 
duty.     (Jonas  v.  U.  S.,  50  Ct.  Cls.,  281.) 

The  Secretary  of  the  Na^-y  exercised  his 
authority  properly  under  the  act  of  August  22, 
1912  (37  Stat.,  329),  when  he  assigned  a  retired 
Marine  officer  to  active  duty  as  post  quarter- 
master, and  upon  such  assignment  the  officer 
became  entitled  to  the  pay  and  allowances 
pro\ided  in  said  act.  (Jonas  v.  U.  S.,  50  Ct. 
Cls.,  281.) 

Coimnissioned  "warrant  officers. — A  com- 
missioned wairant  officer  ranks  with  but  after 
ensign;  as  such  commissioned  officer  there  is  no 
actual  rank  or  grade  to  which  he  would  attain 
in  due  course  of  promotion  on  the  active  list, 
for  there  is  no  due  course  of  promotion  for  such 


officers  as  a  class.  However,  the  act  of  Au- 
gust 29,  1916  (39  Stat.,  578),  authorizes  the 
advancement  of  commissioned  warrant  officers 
after  prescribed  periods  of  ser\icc  to  the  pay 
and  allowances  of  lieutenant  (junior  grade)  and 
lieutenant,  respectively.  Such  advancement 
in  "pay  grades  which  a  commissioned  warrant 
officer  might  attain  in  due  course  on  the  active 
list  is  applicable,  under  the  act  of  July  1,  1918 
(40  Stat.,  717),  to  such  commissioned  warrant 
officers  employed  on  active  duty  in  time  of 
war,  based  upon  their  active  service  both  prior 
and  subsequent  to  retirement.  Such  com- 
missioned warrant  officers  so  advanced  in  pay 
while  on  active  duty  are  entitled,  upon  relief 
from  such  duty,  to  have  their  retired  pay  com- 
puted upon  the  higher  pay  grade  to  which 
advanced.     (26  Comp.  Dec,  306.) 

A  retired  chief  warrant  officer  on  active  duty 
since  August  29,  1916,  was  not  entitled  to  the 
pay  and  allowances  of  a  lieutenant  (junior 
grade)  under  the  first  section  of  the  act  of 
April  10,  1918  (40  Stat.,  516),  because  he  had 
not  served  a  total  of  six  years  from  the  date  of 
his  commission  as  a  chief  warrant  officer;  he 
would  have  been  entitled  to  the  pay  of  a  lieu- 
tenant (junior  grade)  under  the  second  section 
of  the  act  of  April  10, 1918,  but  for  his  promotion 
to  chief  warrant  officer.  Neither  section  of  th^at 
act,  therefore,  entitled  him  to  such  increased 
pay.  Nor  is  he  entitled  to  such  pay  under  the 
pi'ovision  in  the  act  of  March  3,  1909  (35  Stat., 
771),  pro\iding  that  ''no  warrant  officer,  hereto- 
fore or  hereafter  promoted  six  years  from  date 
of  warrant,  shall  suffer  a  reduction  in  pay 
which,  but  for  such  promotion,  would  have 
been  received  by  him. ' '  This  latter  act  merely 
protected  him  from  reduction  in  the  pay  -w  hich 
attached  to  the  warrant  office  at  the  time  he 
vacated  it  by  promotion;  and  liis  promotion 
occurred  prior  to  the  passage  of  the  act  of 
April  10,  1918.  The  act  of  March  3,  1909,  does 
not  entitle  a  chief  warrant  officer  to  the  benefit 
of  increased  pay  made  a  part  of  the  warrant 
grade  by  legislation  enacted  after  his  promo- 
tion.    (26  Comp.  Dec,  935.) 

Increased  pay  from  date  stated  in  com- 
mission.— A  retired  officer  of  the  Navy,  tem- 
porarily advanced  to  the  grade  of  lieutenant 
commander  on  the  retired  list,  while  on  actiA'e 
duty  pursuant  to  the  pro\isiou  in  the  act  of  July 
1,  1918  (40  Stat.,  717),  authorizing  such  tem- 
porary advancement  in  grade,  held,  entitled  to 
tlie  active-duty  pay  of  a  lieutenant  commander 
from  the  date  stated  in  his  commission,  provided 
he  was  on  active  duty  on  that  date.  (Comp. 
Dec,  Oct.  11,  1918,  212  S.  and  A.  Memo.,  4681. 
Compare,  17  Op.  Atty.  Gen.,  495,  noted  under 
sec.  1591;  and  White  v.  U.  S.,  239  U.  S.  608, 
noted  below,  under  "Active  duty  in  time  of 
peace.") 

Increased  pay  under  act  of  August  29, 
1916. — A  retired  officer  detailed  to  active  duty 
is  entitled,  under  the  act  of  August  29,  1916  (39 
Stat.,  581),  to  the  increased  pay  of  a  higher  rank 
while  on  active  duty  from  the  date  that  his  run- 
ning mate  on  the  active  list  of  the  Na\y  receives 
a  temporary  appointment  in  such  higher  rank, 
'in  due  course  of  promotion."  (Comp.  Dec, 
Nov.  12,  1918,  213  S.  and  A.  Memo.,  4724.) 

Active  duty  in  time  of  peace. — Reference 
to  sections  1462,  Re\ised  Statutes,  shows  that 


914 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1593. 


section  1592  is  intended  to  apply  to  the  rates  of 
pay  of  naval  officers  only  in  time  of  war,  and 
consequently  can  have  no  bearing  upon  the 
issue  involved  in  the  case  of  an  officer  ordered  to 
active  duty  under  more  recent  atatutes.  (Sears 
v.  U.  S.,  46Ct.  Cls.,  105.) 

A  retired  officer  employed  on  active  duty  in 
time  of  peace,  pursuant  to  the  act  of  June  7,  1900 
(31  Stat.,  703),  was  entitled  only  to  the  pay  of 
the  rank  held  by  him  on  the  active  list  at  the 
time  of  retirement  and  not  to  the  active-duty 
pay  of  an  officer  of  corresponding  rank  and 
sen-ice  on  the  active  list.  (Sears  i'.  U.  S.,  46 
Ct.  Cls.,  105.) 

A  retired  officer  performing  active  duty  under 
the  act  of  June  7,  1900  (31  Stat.,  684),  was 
entitled  only  to  the  same  pay  that  he  was  receiv- 
ing at  the  time  of  his  retirement;  he  was  not  en- 
titled while  on  active  duty  to  the  benefits  of 
longe\T.ty  increase  accruing  after  the  date  of  his 
retirement.  There  is  no  apparent  reason  for 
gi^-ing  a  retired  officer  on  active  duty  a  higher 
rate  of  pav  than  he  was  receiving  at  the  time  of 
his  retirement.     (Faust  v.  U.  S.,  42  Ct.  Cls.,  94.) 

The  pay  of  a  retired  officer  of  the  Na^y  ordered 
to  active  duty  is  governed  by  the  law  under 
which  his  orders  are  issued.  Thus,  an  officer 
who  held  the  grade  of  lieutenant  commander  on 
the  active  list,  but  was  retired  with  the  rank  of 
commander,  was  entitled,  while  on  active  duty 
under  the  act  of  June  7,  1900  (31  Stat.,  703),  to 


the  active-duty  pay  of  the  grade  of  Lieutenant 
commander,  which  was  the  grade  from  wliicli  he 
was  retired,  and  not  to  the  active  duty  pay  of 
the  rank  of  commander,  held  by  him  on  the 
retired  list.     (Sears  v.  U.  S.,  46  Ct.  Cls.,  105.) 

The  act  of  March  4,  1913  (37  Stat.,  891,  892), 
proA-ided  that  ''all  officers  of  the  NaAy  who, 
since  the  thii-d  day  of  March,  eighteen  hundred 
and  ninety-nine,  have  been  advanced  or  may 
hereafter  be  advanced  in  grade  or  rank  pursu- 
ant to  law  shall  be  allowed  the  pay  and  allow- 
ances of  the  higher  grade  or  rank  from  the  dates 
stated  in  their  commissions."  Certain  officers 
were  advanced  in  rank  at  the  time  of  their  retire 
ment,  in  accordance  with  sections  8  and  11  of 
the  naval  personnel  act  of  ISIarch  3,  1899  (30 
Stat.,  1006,  1007),  and  continued  on  active  duty 
for  several  vears  thereafter,  in  accordance  with 
the  act  of  June  7,  1900  (31  Stat.,  703).  For  such 
active  duty  they  were  allowed  the  active  duty 
pay  of  the  rank  which  they  held  prior  to  their 
retirement.  Held,  that  the  act  of  1913  applied 
onlv  to  officers  on  the  active  List.  The  act  of 
August  22,  1912  (37  Stat.,  328,  329),  which 
limited  the  pay  which  retired  officers  thereafter 
ordered  to  active  duty  might  receive,  conffi-ms 
this  conclusion,  (^\"hite  v.  U.  S.,  239  II.  S., 
608.  See  note  above,  under  "Increased  pay 
from  date  stated  in  commission.'") 

For  other  cases,  see  notes  to  sections  1588 
and  1591,  ReAdsed  Statutes. 


Sec.  1593.  [Officers  retired  on  furlough  pay.]  Officers  placed  on  the  retired 
list,  on  furlough  pay,  shall  receive  only  one-half  of  the  pay  to  which  they  would 
have  been  entitled  if  on  leave  of  absence  on  the  active  list. —  (3  Mar.,  1835,  c. 
27,  s.  1,  V.  4,  pp.  756,  757.  28  Feb.,  1855,  c.  127,  s.  2,  v.  10,  p.  616.  16  Jan., 
1857,  c.  12,  s.  1,  V.  11,  p.  154.  3  Aug.,  1861,  c.  42,  s.  23,  v.  12,  p.  291.  28 
July,  1866,  c.  312,  s.  2,  v.  14,  p.  345.     30  Jan.,  1875,  c.  30,  v.  18,  p.  304.) 


See  sections  1442,  1454,  1557,  1558,  and  1594, 

RoAdsed     Statutes;    and    notes    to    those 

sections. 

Section     1593     not     repealed. — Section 

1442  gives  the  right  to  furlough  an  officer  of  the 

Na"\y,  and  section  1557  fixes  the  proportion  of 

gay  that  he  shall  have  while  on  furlough, 
ection  1454  proAides  for  retiring  officers  of 
the  Na\y  on  furlough  pay,  and  section  1593 
pro\-ides  specifically  that  such  officers  "shall 
receive  only  one-half  of  the  pay  to  which  they 
would  haA'e  been  entitled  if  on  leave  of  absence 
on  the  active  list. "  These  sections  are  not  re- 
pealed.    (15  Comp.  Dec,  70.) 

Under  the  act  of  May  13,  1908,  one-half  9f 
full  pay  based  on  the  rates  fixed  by  that  act  is 
the  proper  pay  to  be  allowed  an  officer  of  the 
Na^y  wliile  on  furlough,  or  while  on  the  re- 
tired list  on  fm'lough  pay.  (15  Comp.  Dec, 
70.) 

The  assimilating  clause  of  section  13  of  the 
NaAy  personnel  act  of  March  3,  1899  (30  Stat., 
1004,  1007),  giving  certain  officers  of  the  Navy 
the  same  pay  as  allowed  officers  of  correspond- 
ing rank  in  the  Army,  applied  only  to  officers 
on  the  active  list,  and  did  not,  therefore,  re- 
peal the  prior  laws  respecting  the  pay  fixed  by 
section  1593  of  the  Re\is8d  Statutes  for  officer 


compulsorily  retired,  under  section  1452,  for 
incapacity  not  resulting  from  any  incident  of 
the  serAT-ce.  (Hannum  v.  'U.  S.,  226  U.  S., 
436.) 

Not  applicable  to  Marine  oflB.cers. — 
Section  1593  does  not  apply  to  officers  of  the 
Marine  Corps.  Accordingly,  such  an  officer, 
retired  for  disability  not  incident  to  the  serAdce, 
and  in  whose  case  it  was  directed  by  the  Presi- 
dent that  he  be  retired  on  furlough  pay,  was 
nevertheless  entitled  to  full  retirea  pay  as 
pro\ided  by  section  1274,  RoAdsed  Statutes, 
relating  to  the  Army,  and  made  applicable  to 
the  Marine  Corps  by  sections  1622  and  1623, 
Re\-ised  Statutes.  It  is  not  competent  for  the 
President  to  place  retired  officers  on  a  different 
rate  of  pay  than  that  which  the  law  has  fixed. 
(15  Op.  Atty.  Gen.,  442.) 

Report  of  board  under  which  ofl&cer 
retired.— An  officer  is  legally  retired  on  fur- 
lough pay  for  incapacity  not  the  result  of  an 
incident  of  the  ser\dce  where  the  retiring  board 
reports  that  there  was  no  e\'idence  that  his 
incapacity  was  the  result  of  any  incident  of 
the  sendee.  It  is  incumbent  on  the  officer 
whose  case  comes  before  a  retiring  board  to 
show,  in  order  to  secure  a  report  which  will 
entitle  him  to  be  placed  on  the  retired  list, 


915 


Sec.  1595. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


rather  than  on  the  retired  list  on  furlough  pay, 
that  his  incapacity  was  the  result  of  some  inci- 
(h'lit  of  the  service.  Accordingly,  the  report 
of  the  board  that  there  was  no  CAddence  to  sup- 


port such  a  finding  is  to  all  intents  and  purposes 
a  report  that  the  incapacity  was  not  the  result 
of  an  incident  of  the  service.  (Brown  v.  U.  S., 
113  U.  S.,  568,  573.) 


Sec.  1594.  [Transfer  from  furlough  to  retired  pay  list.]  The  President,  by 
and  with  the  advice  and  consent  of  the  Senate,  may  transfer  any  officer  on  the 
retired  list  from  the  furlough  to  the  retired-pay  list. —  (16  Jan.,  1857,  c.  12, 
s.  3,  V.  11,  p.  154.  16  July,  1862,  c.  183,  s.  20,  v.  12,  p.  587.  30  Jan.,  1875, 
c.  30,  V.  18,  p.  304.) 


See 


1442,  1454,  1557,  1558, 
Statutes;  and     notes 


and 
to 


1593, 
those 


sections 
Revised 
sections. 

Increased  pay  prohibited. — By  act  of 
August  5,  1882  (22  Stat.,  28G),  it  was  provided 
that  "hereafter  there  shall  be  no  promotion  or 
increase  of  pay  in  the  retired  list  of  the  Navy, 
but  the  rank  and  pay  of  officers  on  the  retired 
list  shall  be  the  same  that  they  are  when  such 
officers  shall  be  retired."  Held,  that  this 
statute  prohibits  the  transfer  of  an  officer  from 
the  furlough  to  the  retired  pay  list,  under  sec- 
tion 15'.;)4,  Revised  Statutes,  with  increase  of 
pay;  also  held,  that  such  officer  can  not  be 
simultaneously  retired  on  furlough  pay  and 
transferred  to  the  retired  pay  list,  so  as  to  give 
him  the  pay  of  the  latter.(18  Op.Atty.Gen.,96.) 

(That  furlough  pay  is  now  the  same  as  the  pay 
received  by  officers  on  the  half-pay  retired  list. 


see  15  Comp.  Dec,  70,  noted  under  section 
1593,  Revised  Statutes;  see  also  note  to  section 
1588,  Revised  Statutes.  Transfer  from  the 
furlough  to  the  retired  pay  list  would  not, 
therefore,  involve  any  increase  of  pay  under 
existing  laws.) 

Idberal  construction. — Section  1594,  Re- 
vised Statutes,  authorizing  the  transfer  of  a 
retired  officer  of  the  Navy  from  the  fuiiough  to 
the  retired  pay  list,  being  intended  to  afford 
relief  from  the  consequences  of  the  findings  of 
retiring  boards,  should  be  construed  liberally; 
and  being  so  construed,  it  is  held  that  the  Presi- 
dent has  power  under  it,  with  the  advice 
and  consent  of  the  Senate,  to  make  the  transfer 
relate  back  to  a  time  when  in  his  judgment  it 
ought  to  have  been  granted.  (U.  S.  v.  Burch- 
ard,  125  U.  S.,  176.) 


Sec.  1595.  [Rations.]   Rations    shall   not   be   allowed    to    officers  on 
retu-ed  list.— (16  July,  1862,  c.  183,  s.  20,  v.  12,  p.  587.) 


the 


See  notes  to  sections  1578  and  1579,  Revised 
Statutes,  as  to  rations  of  officers  on  the 
active  list;  and  see  note  to  section  1592, 


Revised  Statutes,  as  to  pay  and  allowances 
of  retired  officers  on  active  duty. 


916 


CHAPTER  NINE. 


THE  MARINE  CORPS. 


See. 
1596. 

1597. 
1598. 
1599. 

1600. 
1601. 
1602. 
1603. 
1604. 
1605. 
1606. 
1607. 
1608. 
1609. 


Number  and  grades  of  officers  and  en- 
listed men. 

When  number  of  officers  may  be  exceeded. 

Staff  separate  from  line. 

Qualifications  for  appointment  and  pro- 
motion. 

Credit  for  volunteer  service. 

Rank  of  commandant. 

Staff  rank. 

Relative  rank  with.  Army. 

Brevets. 

Advancement  in  number. 

Promotion  when  grade  is  full. 

Promotion  for  gallantry. 

Enlistments. 

Oath. 


Sec. 

1610.  Exemption  from  arrest. 

1611.  Companies  and  detachments. 

1612.  Pay  and  allowances. 

1613.  Marine  band. 

1614.  Deduction  for  hospitals. 

1615.  Rations  of  enlisted  men. 

1616.  Service  on  armed  vessels. 

1617.  Command  of  navy  yards  or  vessels. 

1618.  Marines  substituted  for  landsmen. 

1619.  Duty  on  shore. 

1620.  Regulations. 

1621.  When    detached    for    service    with 

Army. 

1622.  Retirement. 

1623.  Retiring  board,  how  composed. 


the 


Sec.  1596.  [Number  and  grades  of  oflGicers  and  enlisted  men.] 


This  section  provided  as  follo-ws: 

"  Sec.  1596.  The  Marine  Corps  of  the  United 
States  shall  consist  of  one  commandant,  with 
the  rank  of  brigadier-general,  one  colonel,  two 
Ueutenant-colonels,  four  majors,  one  adjutant 
and  inspector,  one  paymaster,  one  quarter- 
master, two  assistant  quartermasters,  twenty 
captains,  thirty  first  lieutenants,  thirty  second 
lieutenants,  one  sergeant-major,  one  quarter- 
master-sergeant, one  drum-major,  one  principal 
musician,  two  hundred  sergeants,  two  hundred 
and  twenty  corporals,  thirty  musicians  for  a 
band,  sixty  drummers,  sixty  fifers,  and  twenty- 
five  hundred  privates."— (25  July,  1861,  c.  19, 
8.  7,  V.  12,  p.  275.  2  Mar.,  1867,  c.  174,  s.  7,  v. 
12,  p.  517.) 

It  was  amended  by  acts  of  June  30,  1876 
(19  Stat.,  71),  and  January  30,  1885  (23  Stat., 
293),  which  provided  for  a  permanent  reduc- 
tion in  the  number  of  commissioned  officers 
of  the  Marine  Corps  to  "not  exceed  seventy- 
five;"  and  by  act  of  May  4,  1898  (30  Stat.,  369, 
370),  which  authorized  the  appointment  by  the 
President  within  twelve  months  following 
said  act  of  such  additional  temporary  officers 
of  the  Marine  Corps,  not  above  the  rank  of 
captain,  as  might  be  requisite,  such  officers 
to  serve  "only  during  the  continuance  of  the 
exigency  under  which  their  services  are  re- 
quired in  the  existing  war;"  and  further 
authorized  the  Secretary  of  the  Navy  to  enlist, 
as  a  temporary  force  during  the  existing  war, 
not  more  than  60  gunnery  sergeants  wth  the 
rank  of  first  sergeant,  not  more  than  80  corporals, 
and  not  more  than  1 ,500  privates. 

It  was  superseded  by  sections  18-24  of  the 
Navy  personnel  act  of  March  3,  1899  (30  Stat., 
1008,  1009),  section  18  of  which  act  prescribed 
the  number  of  line  officers;  section  22,   the 


number  of  staff  officers;  section  23,  the  number 
of  enlisted  men;  and  section  24,  the  number 
constituting  the  Marine  Band.  These  sections 
are  more  fully  noted  below,  with  references 
to  amendatory  statutes  since  enacted. 

LAWS    PRESCRIBING    ORGANIZATION    OP    MARINE 
CORPS. 

Number  and  grades  of  commissioned  officers. — 

By  act  of  March  3,  1899,  section  18  (30  Stat., 

1008),  it  was  provided  that  the  active  list  of  the 

line  officers  of  the  Marine  Corps  shall  consist  of — ■ 

1  Brigadier  general  commandant; 

5  Colonels; 

5  Lieutenant  colonels; 
10  Majors; 
60  Captains; 

60  First  lieutenants,  and 
60  Second  lieutenants. 
By  the  same  act,  secdon  22  (30  Stat.,  1009), 
it  was  provided  that  the  staff  of  the  Marine 
Corps  shall  consist  of  1  adjutant  and  inspectx)r, 
1  quartermaster,  and  1  paymaster,  each  with 
the  rank  of  colonel;  1  assistant  adjutant  and 
inspector,  2  assistant  quartermasters,  and  1 
assistant  paymaster,  each  with  the  rank  of 
major;  and  3  assistant  quartermasters  with  the 
rank  of  captain. 

By  act  of  July  1,  1902  (32  Stat.,  686),  the 
commandant  was  given  the  rank  of  major  gen- 
eral during  the  service  of  the  then  incumbent. 
By  act  of  March  3,  1903  (32  Stat.,  1198),  the 
following  additional  officers  were  authorized: 
1  Colonel;  1  lieutenant  colonel;  5  majors; 
12  captains;  25  first  lieutenants;  12  second 
lieutenants;  1  assistant  adjutant  and  inspector 
with  the  rank  of  lieutenant  colonel ;  2  assistant 
adjutants   and    inspectors   with    the   rank   of 


917 


Sec.  1596. 


PL  2.  REVISED  STATUTES. 


The  Navy, 


major;  1  assistant  quartermaster  with  the  rank 
of  lieutenant  colonel;  5  assistant  quartermasters 
with  the  rank  of  captain;  1  assistant  paymaster 
with  the  rank  of  lieutanent  colonel,  1  assistant 
pa\inaster  with  the  rank  of  captain. 

By  act  of  ^fay  13,  1908  (35  Stat.,  155),  the 
followinn;  further  increases  were  made  in  the 
commissioned  personnel:  1  Major  general  com- 
mandant, in  lieu  of  the  then  brigadier  general 
commandant;  1  colonel;  1  lieutenant  colonel; 
2  majors;  18  captains;  7  first  lieutenants;  and 
14  second  lieutenants. 

By  act  of  December  19,  1913  (38  Stat.,  241), 
it  was  ])ro\'ided  that  appointments  as  com- 
mandant thereafter  made  should  be  for  a  term 
of  four  years,  that  the  appointee  should  be  an 
ofl5cer  of  the  active  list  not  below  the  grade  of 
field  officer,  who  while  ser^ing  as  commandant 
should  have  the  rank  of  major  general,  and  be 
carried  as  an  additional  number  in  his  grade 
and  after  his  return  to  duty  in  his  grade  imtil 
Baid  grade  is  reduced  to  the  number  author- 
ized by  law;  and  that  nothing  contained  in 
said  act  "shall  operate  to  increase  or  reduce 
the  total  number  of  officers  in  the  IMarrne  Corps 
now  proA-ided  by  law."  (For  amendment  to 
this  pro^ision,  see  act  of  Aug.  29,  1916,  quoted 
below.) 

By  act  of  June  12,  1916,  section  3  (39  Stat., 
224),  the  following  additional  officers  were 
authorized:  2  majors;  12  captains;  18  first  lieu- 
tenants; 2  assistant  quartermasters  with  the 
rank  of  captain ;  and  1  assistant  paymaster  with 
the  rank  of  captain. 

By  act  of  August  29,  1916  (39  Stat.,  609,  610), 
the  commissioned  strength  of  the  Marine  Corps, 
line  and  staff,  was  fixed  on  a  percentage  basis 
of  the  enlisted  strength,  as  follows: 

' '  Hereafter  the  total  number  of  commissioned 
officers  of  the  active  list  of  the  line  and  staff  of 
the  Marine  Corps,  exclusive  of  officers  borne  on 
the  Na%-y  list  as  additional  numbers,  shall  be 
fom*  per  centum  of  the  total  authorized  enlisted 
strength  of  the  acti^'e  list  of  the  Maiine  Corps, 
exclusive  of  the  Marine  Band,  and  of  men 
under  sentence  of  discharge  by  court-martial, 
distributed  in  the  proportion  of  one  officer  with 
rank  senior  to  colonel  to  foiu"  with  the  rank  of 
colonel,  to  five  with  the  rank  of  lieutenant  col- 
onel, to  fourteen  with  the  rank  of  major,  to 
thirty-seven  with  the  rank  of  captain,  to  thirty- 
one  wdth  the  rank  of  first  lieutenant,  to  thirtj'- 
onewiththerankof  second  lieutenant:  *  *  * 
Provided  further,  That  in  determining  the  offi- 
cers with  rank  senior  to  colonel  there  shall  be 
included  the  officer  ser\-in»  as  major  general 
commandant:  And  provided  further,  That  ap- 
pointments hereafter  made. to  the  position  of 
major  general  commandant  under  the  pro^d- 
eions  of  the  Act  approved  December  nineteenth, 
nineteen  hundred  and  thirteen,  entitled  "An 
Act  to  make  the  tenure  of  office  of  the  major 
general  commandant  of  the  ^farine  Corps  for  a 
term  of  four  years,"  shall  be  made  from  officers 
of  the  active  list  of  the  Marine  Coq:)S  not  below 
the  rank  of  colonel:  Prodded  further,  That  the 
officers  serving  in  the  senior  grade  of  the  Adju- 
tant and  Inspector"s,Quartermasters,  and  Pay- 
master's Departments  shall,  while  8er\ing 
therein,  have  the  rank,  pay,  and  allowances  of  a 
brigadier  general:  Ana  provided  further,  That 
for  the  purpose  of  determining  the  number  of 


officers  in  the  various  ranks  as  herein  provided 
such  staff  officers  shall  be  counted  as  being  of 
the  rank  of  colonel." 

(As  to  total  authorized  enlisted  strength, 
see  laws  noted  below  under  this  section.  As 
to  number  of  staff  officers,  see  note  to  section 
1598.) 

By  act  of  May  22,  1917,  section  4  (40  Stat., 
85\  it  was  pro\'ided  that  additional  commis- 
sioned officers  of  the  Marine  Corjis  shall  be 
temporarily  appointed  by  the  President,  in  his 
discretion,  based  upon  the  temporary  increase 
in  the  number  of  enlisted  men  authorized  by 
said  act;  no  such  temporaiy  appointment  to  be 
made  a])Ove  the  rank  of  major;  and  it  was  fur- 
ther pro\"ided  that  during  the  period  of  the 
existing  war,  vacancies  in  the  total  number  of 
commissioned  officers  in  the  Marine  Corps 
authorized  by  the  act  of  August  29,  1916,  might 
be  supplied  by  temporary  appointments  in  the 
lowest  grades,  and  by  temporary  promotions 
to  all  other  grades,  until  a  sufficient  number  of 
officers  should  be  available  for  regtilar  appoint- 
ment or  promotion. 

By  act  of  July  1,  1918  (40  Stat.,  715),  the 
said  act  of  ^lay  22,  1917,  section  4,  was  amended 
so  as  to  authorize  the  temporary  appointment 
of  not  exceeding  6  brigadier  generals,  22  colo- 
nels, and  22  lieutenant  colonels,  based  on  the 
temporarj^  increase  in  the  enlisted  force  of  the 
Marine  Corps. 

By  said  act  of  July  1,  1918  (40  Stat.,  715),  the 
rank  and  title  of  major  general  was  created  in 
the  Marine  Corps,  and  the  President  was  au- 
thorized to  appoint,  with  the  ad\ice  and  con- 
sent of  the  Senate,  one  major  general,  "who 
shall  at  all  times  be  jimior  in  rank  to  the  Major 
General  Commandant,"  and  also  one  tempo- 
rary major  general,  "who  shall  at  all  times  be 
junior  to  the  permanent  major  general." 

By  act  of  January  12,  1919  (40  Stat.,  1054),  it 
was  pro\dded  that  temporary  vacancies  in  the 
Marine  Corps,  caused  by  the  temporary  promo- 
tion of  marine  officers  to  higher  grades  in  the 
Army,  while  detached  for  ser\'ice  with  the 
Army  under  section  1621,  Revised  Statutes, 
"shall  be  temporarily  filled  in  the  same  manner 
as  is  now  prescribed  by  law." 

By  act  of  June  4,  1920  (41  Stat.,  830), 
which  authorized  certain  permanent  appoint- 
ments in  the  Marine  Corps,  to  be  accomplished 
by  June  30,  1921,  it  was  pro^ided:  "That  the 
officers  now  holding  temporary  appointments  as 
commissioned  officers  in  the  Marine  Corps  may 
retain  their  temporary  commissions  until  the 
permanent  appointments  proA'ided  for  in  the 
foregoing  section  shall  have  been  made." 

As  to  additional  number  officers,  Marine 
Corps  Reserve,  etc.,  see  note  below  under  this 
section. 

Warrant  officers  and  pay  clerks. — By  act  of 
August  29,  1916  (39  Stat.,  611),  "the  warrant 
grades  of  marine  gunner  and  quartermaster 
clerk"  were  established,  and  the  number  in 
each  grade  fixed  at  twenty;  and  it  was  provid- 
ed that  officers  in  said  grades  "shaU  have  the 
rank  and  receive  the  pay,  allowances,  and  priv- 
ileges of  retirement  of  warrant  officers  in  the 
Navy." 

By  act  of  May  22,  1917,  section  11  (40  Stat., 
87),  the  appointment  was  authorized  of  30  ma- 
rine gunners  and   30   quartermaster's   clerks, 


918 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1596. 


additional  to  the  number  then  prescribed  by 
law. 

By  act  of  June  4,  1920  (41  Stat.,  830),  it  was 
provided  that  "officers  now  holding  temporary 
commissions  in  the  Marine  Corps  and  who  have 
had  more  than  ten  years'  service  therein,  if  not 
found  qualified  for  permanent  commissions, 
and  who  are  recommended  by  the  board  herein 
pro\dded  for,  may  be  appointed  warrant  officers 
in  the  Marine  Corps;  and  the  authorized  num- 
ber of  warrant  officers  is  hereby  increased  by  a 
number  not  to  exceed  fifty  to  provide  for  the 
appointment  of  the  aforesaid  officers." 

Bjr  act  of  July  1,  1918  (40  Stat.,  735),  it  was 
provided  that  "the  title  of  clerks  for  assistant 
paymasters  is  hereby  changed  to  pay  clerk, 
who  shall  hereafter  receive  the  same  pay,  allow- 
ances, and  other  benefits  now  provided  by  law 
for  clerks  for  assistant  paymasters;  and  the  total 
number  of  pay  clerks  shall  not  exceed  ten  for 
duty  in  the  office  of  the  paymaster,  Marine 
Corps,  fifteen  for  duty  in  the  paymaster's  de- 
partment at  large,  and  one  for  each  assistant 
paymaster."  (As  to  pay  and  allowances,  etc., 
of  pay  clerks,  see  note  to  sec.  1612.)  By  act  of 
June  24,  1910  (36  Stat.,  625),  appropriating  for 
one  clerk  for  each  assistant  paymaster,  it  was 
pro\dded  that  hereafter  such  clerk  shall  be 
available  where  his  services  are  required. 

Number  and  grades  of  enlisted  men. — By  act  of 
March  3,  1899,  section  23  (30  Stat.,  1009),  it  was 
pro\dded  that  the  enlisted  force  of  the  Marine 
Corps  shall  consist  of  5  sergeant  majors,  1  drum 
major,  20  quartermaster  sergeants,  72  gimnery 
sergeants  with  the  rank  and  allowance  of  first 
sergeant,  60  first  sergeants,  240  sergeants,  480 
corporals,  80  drummers,  80  tnimpeters,  and 
4,962  privates. 

By  subsequent  enactments,  the  following 
additional  noncommissioned  officers  and  pri- 
vates were  authorized: 

Act  July  1,  1902  (32  Stat.,  687):  10  gimnery 
sergeants,  40  sergeants,  60  corporals,  10  dnim- 
mers,  10  tnimpeters,  and  620  privates. 

Act  March  3,  1903  (32  Stat.,  1198):  1  sergeant 
major,  40  quartermaster  sergeants,  12  first  ser- 
geants, 65  sergeants,  55  corporals,  10  drummers, 
10  trumpeters,  and  527  privates. 

Act  March  3,  1905  (33  Stat.,  1113):  10  first 
sergeants,  67  sergeants,  142  corporals,  10  drum- 
mers, 10  trumpeters,  and  1,000  privates. 

Act  May  13,  1908  (35  Stat.,  155):  2  sergeant 
majors,  15  quartermaster  sergeants,  "five  of 
whom  are  to  serve  in  the  pay  department,"  20 
first  sergeants,  50  sergeants,  125  corporals,  10 
drummers,  10  tnimpeters,  and  518  privates. 

Act  August  22,  1912  (37  Stat.,  350,  351):  4 
sergeant  majors,  4  quartermaster  sergeants,  4 
gunnery  sergeants,  12  first  sergeants,  18  ser- 
geants, 35  corporals,  4  drummers,  4  trumpeters, 
and  315  privates. 

Act  March  3,  1915  (38  Stat.,  948):  20  gunnery 
sergeants,  20  sergeants,  and  70  corporals.  _  The 
number  of  privates  was  reduced  by  llOinthisact. 
Act  June  12,  1916  (39  Stat.,  223,  224):  5 
quartermaster  sergeants,  5  gunnery  sergeants, 
5  first  sergeants,  and  11  sergeants. 

Act  August  29,  1916  (39  Stat.,  612):  28  ser- 
geant majors,  117  quartermaster  sergeants,  107 
gunnery  sergeants,  107  first  sergeants,  500  ser- 
geants, 835  corporals,  50  drummers,  50  trum- 
peters, and  3,235  privates. 


The  total  strength  of  the  above  enlisted 
grades,  as  fixed  by  the  acts  cited,  was  as  fol- 
lows: 40  sergeant  majors,  1  drum  major,  201 
quartermaster  sergeants,  218  gunnery  sergeants, 
226  first  sergeants,  1,011  sergeants,  1,802  cor- 
porals, 174  dnimmers,  174  tnimpeters,  and 
11,067  privates,  making  a  grand  total  in  all  said 
grades  of  14,914.  (As  to  number  of  Marine 
Band,  see  below.) 

By  act  of  August  29,  1916  (39  Stat.,  612),  it 
was  pro\ided  that ' '  the  President  is  authorized, 
when,  in  his  judgment,  it  becomes  necessary 
to  place  the  country  in  a  complete  state  of 
preparedness,  to  further  increase  the  enlisted 
strength  of  the  Marine  Corps  to  17,400:  And 
provided,  That  the  distrilnition  in  the  various 
grades  shall  be  in  the  same  proportion  as  that 
authorized  at  the  time  when  the  President 
aA'ails  himself  of  the  authority  herein  granted." 
(In  accordance  with  this  provision,  the  enlisted 
strength  of  the  Marine  Corps  was  increased  to 
17,400  by  the  President's  order  of  Mar.  26, 
1917.) 

By  act  of  May  22,  1917,  section  2  (40  Stat., 
84),  it  was  provided  "that  the  authorized  en- 
listed strength  of  the  active  list  of  the  Marine 
Corps  is  hereby  temporarily  increased  from 
17,400  to  30,000,  this  authorized  strength  being 
distributed  in  the  various  grades  of  the  enlisted 
force  in  the  same  proportion  as  those  authorized 
at  the  date  of  the  approval  of  this  act." 

By  act  of  July  1,  1918  (40  Stat.,  714),  the 
act  of  May  22,  1917,  section  2,  was  reenacted 
to  read  as  follows:  "That  the  authorized  en- 
listed strength  of  the  active  list  of  the  Marine 
Corps  is  hereby  temporarily  increased  from 
17,400  to  75,500,  this  authorized  strength  being 
distributed  in  the  various  grades  of  the  en- 
listed force  in  the  same  proportion  as  those 
authorized  at  the  date  of  the  approval  of  this 
act:  Provided,  That  not  more  than  25  per  centum 
of  the  authorized  number  of  privates  in  the 
]\Iarine  Corps  shall  have  the  rank  of  private, 
first  class,  which  rank  is  hereby  established  in 
the  Marine  Corps." 

By  act  of  July  11,  1919  (41  Stat.,  152),  it  was 
provided  that  "the  authorized  enlisted  strength 
of  the  active  list  of  the  Marine  Coi-ps  is  hereby 
temporarily  increased  to  27,400,  plus  such 
number  of  men  as  may  be  serving  with  the 
American  expeditionary  forces  abroad:  Pro- 
vided, That  the  average  number  of  enlisted 
men  of  the  Marine  Corps  on  active  duty  during 
the  fiscal  year  ending  Jime  30,  1920,  shall  not 
exceed  27,400,  distribution  in  the  various 
grades  to  be  made  in  the  same  proportion  aa 
provided  under  existing  law." 

By  act  of  June  4,  1920  (41  Stat.,  830),  it  was 
provided  that ' '  the  authorized  enlisted  strength 
of  the  active  list  of  the  Marine  Corps  is  hereby 
permanently  established  at  27,400,  distribution 
in  the  various  grades  to  be  made  in  the  same 
proportion  as  provided  imder  existing  law." 

By  act  of  May  13,  1908  (35  Stat.,  155),  it  was 
pro\dded  that  "hereafter  the  number  of  en- 
listed men  in  the  United  States  Marine  Corps 
shall  be  such  as  the  Congress  may  from  time 
to  time  authorize." 

By  act  of  June  30,  1914  (38  Stat.,  403),  it  was 
pro\ided  "that  hereafter  the  number  of  en- 
listed men  of  the  Navy  and  Marine  Corps 
pro\ided  for  shall  be  construed  to  mean  the 


919 


Sec.  1596. 


Pt.  2.  BE  VIS  ED  STATUTES. 


The  Navy. 


daily  a\era2;e  number  of  enlisted  men  in  the 
naval  service  during  the  fiscal  year." 
'  By  act  of  AuR\i8t  20,  1916  (39  Stat.,  C12),  it 
was  provided  that  "hereafter  the  number  of 
enlisted  men  of  the  Marine  Corps  shall  be 
exclusive  of  those  sentenced  l)y  court-martial 
to  discharge." 

By  act  of  July  1,  1918  (40  Stat.,  714,  quoted 
above),  the  rank  of  private,  first  class,  was 
established. 
By  act  of  July  11,  1919  (41  Stat.,  152),  it  was 
provided  ''that  the  words  'enlisted  men,'  as 
contained  in  prior  appropriation  acts,  shall  not 
be  construed  to  deprive  women,  enlisted  or  en- 
rolled in  the  naval  service,  of  the  pay,  allow- 
ances, gratuities,  and  other  beneiits  granted  by 
law  to  the  enlisted  personnel  of  the  Navy  and 
Marine  Corps." 

By  act  of  June  4,  1920,  section  7  (41  Stat., 
836),  it  was  provided  "that  hereafter  the  Sec- 
retary of  the  Navy  is  authorized,  in  his  discre- 
tion, to  establish  such  grades  and  ratings  as  may 
be  necessary  for  the  proper  administration  of  the 
enlisted  personnel  of  the  Navy  and  Marine 
Corps." 

Marine  Band. — The  provision  of  section  1596, 
Revised  Statutes,  above  set  forth,  that  "the 
Marine  Corps  of  the  United  States  shall  consist 
of  *  *  *  thirty  musicians  for  a  band , ' '  was 
superseded  by  section  24  of  the  Navy  personnel 
act  approved  IMarch  3,  1899  (30  Stat.,  1009), 
which  pro^dded  "That  the  band  of  the  United 
States  Marine  Corps  shall  consist  of  one  leader, 
with  the  pay  and  allowances  of  a  first  lieutenant; 
one  second  leader,  whose  pay  shall  be  seventy- 
five  dollars  per  month,  and  who  shall  have  the 
allowances  of  a  sergeant  major;  thirty  first-class 
musicians,  whose  pay  shall  be  sixty  dollars  per 
month ;  and  thirty  second-class  musicians,  whose 
pay  shall  be  fifty  dollars  per  month  and  the  al- 
lowances of  a  sergeant;  such  musicians  of  the 
band  to  have  no  increased  pay  for  length  of  serv- 
ice." (As  to  pay  of  Marine  Band,  see  also  note 
to  sec.  1613,  R.  S.) 

By  act  of  August  29, 1916  (39  Stat.,  609,  above 
quoted),  the  total  nimaber  of  commissioned 
officers  of  the  ^farine  Corps  is  fixed  at  a  percent- 
age of  "the  total  authorized  enlisted  strength 
of  the  active  list  of  the  Marine  Corps,  exclusive 
of  the  Marine  Band  *  *  *."  The  same  act 
(39  Stat.,  612)  provided  "that  the  band  of  the 
United  States  Marine  Corps  shall  consist  of  one 
leader,  whose  pay  and  allowances  shall  be  those 
of  a  captain  in  the  Marine  Corps;  one  second 
leader,  whose  pay  shall  be  $150  per  month  and 
who  shall  have  the  allowances  of  a  sergeant  ma- 
jor; ten  principal  musicians,  whose  pay  shall 
be  §125  per  month;  twenty-five  first-class  musi- 
cians, whose  pay  shall  be  $100  per  month; 
twenty  second-class  musicians,  whose  pay  shall 
be  $85  per  month ;  and  ten  third-class  musicians, 
whose  pay  shall  be  S70  per  month;  such  musi- 
cians of  the  band  to  have  the  allowances  of  a 
sergeant  and  to  have  no  increase  in  the  rates  of 
pay  on  account  of  length  of  ser\dce." 

Additional  officers  and  enlisted  vien. — By  act 
of  March  3,  1901  (31  Stat.,  1108),  it  was  pro- 
vided that  officers  of  the  Marine  Corps  ad- 
vanced under  section  1605,  Revised  Statutes, 
for  services  rendered  during  the  war  A\ath 
Spain,  shall  be  carried  as  additional  numbers  in 
their  grades.     By  act  of  June  16,  1906  (34  Stat., 


296),  it  was  provided  that  officers  of  the  Marine 
Corps  advanced  in  rank  for  eminent  and  con- 
spicuous conduct  in  battle  or  extraordinary 
heroism,  shall  l)e  carried  as  additional  numl)ers 
in  each  grade  in  which  they  serve,  (See  sees. 
1605-1608,  R.  S.) 

By  act  of  August  29,  1916  (39  Stat.,  609), 
it  was  provided  that  "the  promotion  to  the 
grade  of  brigadier  gon(>ral  of  any  officer  now 
or  hereafter  carried  as  an  additional  number  in 
the  gi-ade  or  with  the  rank  of  colonel  shall  be 
held  to  fill  a  vacancy  in  the  grade  of  brigadier 
general."  (This  provision  does  not  apply  to 
the  officer  serving  as  Major  General  Com- 
mandant and  carried  as  an  additional  number 
in  his  grade  under  the  act  of  December  19,  1913, 

38  Stat.,  241,  quoted  above,  under  "Number 
and  grades  of  commissioned  officers."  (See 
note  to  sec.  1601,  R.  S.) 

The  said  act  of  August  29,  1916  (39  Stat., 
611),  further  provided  that  within  two  years 
from  the  date  thereof  certain  officers  retired 
for  physical  disability  might  be  transferred  to 
the  active  list  of  the  Marine  Corps,  and  that 
any  officer  so  transferred  "shall  be  carried  as  an 
additional  number  in  the  grade  to  which  he 
may  be  transferred  or  at  any  time  thereafter 
promoted." 

The  said  act  of  August  29,  1916  (39  Stat.,  582, 
586),  authorized  a  Naval  Flying  Corps,  to  be 
composed  in  part  of  150  officers,  detailed  from 
the  line  of  the  Navy  and  from  the  IMarine 
Corps,  or  appointed  to  the  line  of  the  Navy  or 
Marine  Corps,  for  aeronautic  duties  only,  and 
350  enlisted  men,  the  said  officers  and  enlisted 
men  to  be  in  addition  to  the  total  nmnber  of 
officers  and  enlisted  men  which  ' '  is  now  or  may 
hereafter  be  provided  by  law  for  the  other 
branches  of  the  naval  service." 

Marine  Corps  Reserve. — ^The  act  of  August  29, 
1916  (39  Stat.,  593),  created  a  Marine  Corps 
Reserve,  "to  be  a  constituent  part  of  the 
Marine  Corps  and  in  addition  to  the  authorized 
strength  thereof, ' '  under  the  same  provisions  in 
all  respects,  except  as  may  be  necessary  to 
adapt  the  said  provisions  to  the  Marine  Corps, 
as  those  providing  for  the  Naval  Reserve  Force 
in  the  same  act.  (For  amendments  to  said 
act  of  Aug.  29,  1916,  see  acts  of  Mar.  4,  1917, 

39  Stat.,    1174,   Apr.   25,    1917,   40   Stat.,   37, 
Apr.    25,    1917,   40   Stat.,    38,    May   22,    1917, 

40  Stat.,  84,  July  1,  1918,  40  Stat.,  708-712, 
and  June  4,  1920,  41  Stat.,  834.) 

Marine  Corps  instruction  camps. — By  act  of 
August  29,  1916  (39  Stat.,  614),  the  Secretary 
of  the  Navy  was  authorized  to  establish  camps 
of  instruction  for  volunteer  citizens  designated 
for  such  training. 

Computing  number  of  ofl3.cers. — The 
naval  appropriation  act  of  August  29,  1916 
(39  Stat.,  577),  proiides  that  "whenever  a  final 
fraction  occurs  in  computing  the  authorized 
number  of  any  corps,  grade  or  rank  in  the 
naval  service,  the  nearest  whole  number  shall 
be  regarded  as  the  authorized  number:  Fro- 
vidcd,  That  at  least  one  officer  shall  be  allowed 
in  each  grade  or  rank."  Held,  that  the  words 
"naval  service"  in  this  provision  include  the 
Marine  Corps,  although  the  method  of  com- 
puting by  percentages  the  authorized  number 
of  commissioned  officers  in  that  corps  was  pre- 
scribed in  a  different  part  of  the  act.     This 


920 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1598. 


concliision  is  strenginened  by  the  fact  that 
Congress  in  the  same  act  elsewhere  made 
specific  reference  to  the  "naval  service"  wdth 
indisputable  application  to  the  Marine  Corps, 
in  connection  with  the  reinstatement  of 
"former  officers  of  the  Marine  Corps  who 
resigned  from  the  naval  service  in  good  stand- 
ing." (File  28687-5,  Aug.  29,  1916.  See  also 
note  to  sec.  1G21,  R.  S.) 

Reduction  in  nttmber  of  oflS.cers. — Con- 
gress might  disband  the  whole  Marine  Corps 
without  "any  violation  of  the  Constitution  of 
the  United  States  and  without  any  breach  of 
contract  with  the  officers  of  the  corps.  If  they 
might  do  the  greater  act,  they  might  certainly 
do  the  less.  If  they  might  disband  wholly, 
they  may  siu-ely  disband  partially,  without 
any  imputation  of  their  having  transcended 
either  their  power  or  their  duty.  They  have 
disbanded  the  majors;  that  grade  exists  no 
longer;  and  with  the  grade  falls  the  claim  to 
pay.  (1  Op.  Atty.  Gen.,  489,  490;  see  also 
note  to  sec.  1604,  R.  S.) 

Distribution  of  enlisted  men. — Under  the 
naval  appropriation  act  of  June  4,  1920  (above 
quoted),  fixing  the  permanent  strength  of  the 
active  list  of  enlisted  men  in  the  Marine  Corps, 


held  that  the  words  '  'in  the  same  proportion  as 
provided  under  existing  laws"  continue  the 
grades  existing  at  the  date  of  the  approval  of 
said  act  and  definitely  establish  the  number 
in  each;  and  the  Secretary  of  the  Navy  is 
without  authority  to  increase  the  numbers  in 
said  grades.     (File  1112-1617,  June  22,  1920.) 

The  further  pro\'ision  in  said  act,  authorizing 
the  Secretary  of  the  Na\-y  to  establish  grades 
and  ratings,  does  not  modify  the  provision  first 
above  quoted,  except  in  so  far  as  it  authorizes 
the  Secretary  of  the  Navy  to  estaljlish  such 
new  grades  and  ratings  in  Ihe  Marine  Corps  as 
may  be  necessary  for  the  proper  administration 
of  the  enlisted  personnel  thereof,  and  assign 
thereto  such  numbers  of  enlisted  men  as  he 
may  deem  expedient.  In  the  event  of  the 
Secretary  of  the  Navy  not  availing  himself  of 
the  authority  to  establish  new  gi'ades  and 
ratings,  those  pro\ided  for  under  existing  law 
prior  to  June  4,  1920,  will  continue  as  before. 
(File  1112-1617,  June  22,  1920.) 

Grades  established  for  pay  purposes. — 
See  note  to  section  1612,  Re\ised  Statutes. 

Status  of  Marine  Corps;  part  of  the 
Navy. — See  note  to  section  1621,  Revised 
Statutes. 


Sec.  1597.  [When  number  of  officers  may  be  exceeded.     Obsolete.] 


This  section  provided  as  follows: 

"Sec.  1597.  The  provisions  of  the  preceding 
section  shall  not  preclude  the  advancement  of 
any  officer  to  a  higher  grade  for  distinguished 
conduct  in  conflict  with  the  enemy,  or  for  extra- 
ordinary heroism  in  the  line  of  his  profession,  as 
authorized  by  sections  sixteen  hundred  and  five 
and  sixteen  hundred  and  seven." — (25  July, 
1861,  c.  19,  s.  2,  v.  12,  p.  275.  16  July,  1862,  c. 
183,  s.  9,  V.  12,  p.  584.  24  Jan.,  1865,  c.  19,  s.  2, 
V.  13,  p.  424.) 

It  was  rendered  obsolete  by  the  Na"\y  per- 
sonnel act  of  March  3,  1899,  section  18  (30  Stat., 
1008),  which  superseded  "the  provisions  of  the 
preceding  section,"  referred  to  herein,  namely, 
section  1596,  Re\ised  Statutes,  by  making  new 
and  complete  provisions  as  to  the  number  of 
officers  who  should  compose  the  active  list  of 
the  Marine  Corps. 

Other  enactments  on  this  subject  are  con- 
tained in  the  following  statutes:  Act  March  3, 


1901  (31  Stat.,  1108),  June  16,  1906  (34  Stat., 
296),  and  August  29,  1916  (39  Stat.,  609),  noted 
under  section  1596,  Revised  Statutes,  "Addi- 
tional officers  and  enlisted  men."  See  also 
section  1606,  Revised  Statutes. 

By  act  of  August  29,  1916  (39  Stat.,  609,  610), 
quoted  under  section  1596,  Revised  Statutes, 
under  "Number  and  grades  of  commissioned 
officers,"  new  provisions  were  enacted  as  to  the 
number  of  officers  allowed  in  the  various  grades 
of  the  IVIarine  Corps,  and  it  was  therein  pro\ided 
that  the  total  number  of  commissioned  officers 
therein  authorized,  was  "exclusive  of  officers 
borne  on  the  Navy  list  as  additional  numbers." 
Officers  advanced  under  sections  1605  and  1607, 
Revised  Statutes,  become  additional  numbers 
in  grade  under  the  acts  of  March  3,  1901,  and 
June  16,  1906,  above  cited. 

See  notes  to  sections  1363  and  1364, 
Revised  Statutes. 


Sec.  1598.  [Staff  separate  from  line.     Superseded.] 


This  section  provided  as  follows: 

"Sec.  1598.  The  staff  of  the  Marine  Corps 
shall  be  separate  from  the  Une." — (30  June, 
1834,  c,  132,  s.  6,  v.  4,  p.  713.  2  Mar.,  1847,  c. 
40,  s.  3,  V.  9,  p.  154.) 

It  was  superseded  by  the  act  of  August 
29,  1916  (39  Stat.,  610),  which  abolished  the 
permanent  staff  system  in  the  Marine  Corps 
and  substituted  therefor  a  system  of  temporary 
details  from  the  line,  as  follows: 

"No  further  permanent  appointments  shall 
be  made  in  any  grade  in  any  staff  department. 
Any  vacancy  hereafter  occurring  in  the  lower 
grade  of  any  staff  department  shall  be  filled  by 
the  detail  of  an  officer  of  the  line  for  a  period  of 
four  years  unless  sooner  relieved;  any  vacancy 
hereafter  occurring  in  the  upper  grade  of  any 
staff  department  shall  be  filled  by  the  appoint- 


ment of  an  officer  with  the  rank  of  colonel 
holding  a  permanent  appointment  in  the  staff 
department  in  which  the  vacancy  exists,  or  of 
some  other  officer  holding  a  permanent  appoint- 
ment in  such  staff  department  in  case  there  be 
no  permanent  staff  officer  with  the  rank  of 
colonel  in  that  department,  or  of  a  colonel  of 
the  line  in  case  there  be  no  officer  holding  a 
permanent  appointment  in  such  staff  depart- 
ment. Such  appointments  shall  be  made  by 
the  President  and  be  for  a  term  of  four  years, 
and  the  officer  so  appointed  shall  berecom- 
missioned  in  the  grade  to  which  appointed." 
The  said  act  of  August  29,  1916  (39  Stat., 
610),  also  made  pro\'ision  for  transfers  of  per- 
manent staff  officers  to  the  line,  the  said  pro\d- 
sion,  which  was  temporary  and  has  now  ex- 
pired, being  as  follows: 


921 


Sec.  1599. 


Ft.  2.  REVISED  STATUTES. 


The  Navy. 


"That  prior  to  June  thirtieth,  nineteen  hun- 
dred and  eifihteen,  an  oliicer  holding  a  per- 
manent appointment  in  any  staff  department 
may,  upon  his  own  a])plication,  with  the  ap- 

{)roval  of  the  President,  l)e  reappointed  in  the 
inc  of  the  ^Iarine  Corps  in  the  grade  and  with 
the  rank  he  would  hold  on  the  date  of  his 
reappointment  if  he  had  remained  continuously 
in  the  line:  Provided,  That  no  oflicer  holding 
a  permanent  appointment  in  any  staff  depart- 
ment shall  be  recommissioned  in  the  line  with 
the  rank  of  colonel  or  lieutenant  colonel: 
Provided  further,  That  such  staff  oliicer  shall, 
before  being  reappointed  in  the  line  of  the  Ma- 
rine Corps  as  above  provided,  perform  line 
duties  for  one  year,  at  the  expiration  of  which 
time  he  shall  as  a  prerequisite  to  reappoint- 
ment in  the  line  be  required  to  establish  to  the 
satisfaction  of  an  examining  board  consisting 
of  line  ofiicers  of  the  Marine  Corps  his  physical, 
mental,  and  professional  fitness  for  the  per- 
formance of  line  duty." 

By  another  clause  in  the  same  act  (39  Stat., 
610)  it  was  provided  ''that  officers  holding 
permanent  appointments  in  the  staff  depart- 
ments shall  not  be  eligible  for  appointment  to 
the  grade  of  brigadier  general  of  the  line  as 
hereinbefore  provided." 

Proportion  of  officers  in  the  staff. — 
By  act  of  August  29,  1916  (39  Stat.,  610),  it 
was  pro\'ided  that — 

"The  total  commissioned  personnel  of  the 
active  list  of  the  staff  departments,  whether 
serving  therein  under  permanent  appointments 
or  under  temporary  detail,  as  herein  proAided, 
shall  be  eight  per  centum  of  the  authorized 
commissioned  strength  of  the  Marine  Corps, 
and  of  this  total  one-fifth  shall  constitute  the 
adjutant  and  inspector's  department,  one-fifth 
the  pajTnaster's  department,  and  three-fifths 
the  quartermaster's  department." 

As  to  rank  of  senior  staff  officers  see 
note  to  section  1602,  Revised  Statutes. 

As  to  promotion  of  officers  in  staff  depart- 
ments, see  note  to  section  1-599,  Revised 
Statutes. 

Duties  of  staff  officers. — An  adjutant  was 
provided  for  the  Marine  Corps  as  early  as 
July  11,  1798  a  Stat.,  bM),  and  the  quarter- 
master and  paymaster  at  least  as  early  as  Apr. 
16,  1814  (3  Stat.,  124).  The  act  of  March  3, 
1899,   section  22    (noted    under  section   1596, 


R.  S. ),  simply  increased  the  number  of  aissist- 
ants  to  the  three  principal  oflicei-s.  It  is  to  be 
noted  that  in  none  of  these  acts  are  the  duties 
and  functions  of  the  three  staff  ofiicers  in  ques- 
tion at  all  specified,  but  it  can  not  on  this  ac- 
count be  held  that  the  statute  itself  imposes 
none.  On  the  contrary,  it  is  clear  that  these 
duties  and  functions  were  presumed  by  Con- 
gress to  be  so  well  understood  as  not  to  require 
specific  mention.  Broadly,  the  adjutant  is 
the  aid  of  the  commander  in  maintaining  mili- 
tary discipline;  the  quartermaster  attends  to 
the  supplies  of  the  command;  and  the  pay- 
master to  the  payment  thereof.  (30  Op.  Atty. 
Gen.,  234.) 

A  regulation  which  woidd  deprive  the  senior 
staff  officers  in  the  Marine  Corps  of  the  functions 
above  enimierated,  or  place  them  in  a  situa- 
tion where  they  would  be  unable  to  perform 
them,  is  necessarily  invalid.  The  headquarters 
of  the  command  is  the  only  place  where  in  the 
nature  of  things  those  duties  can  be  properly 
performed.     (30  Op.  Atty.  Gen.,  234.) 

Detachment  of  senior  staff  officers  from 
headquarters. — The  President,  as  commander 
in  chief  of  the  Army  and  Navy,  may  tempo- 
rarily detail  said  staff  officers  (adjutant  and  in- 
spector, quartermaster,  and  pajonaster)  away 
from  the  headquartei"s  of  their  command,  or 
order  them  to  perform  temporarily  additional 
duties  in  the  line  of  their  staff  fimctions  or 
outside  of  them.     (30  Op.  Atty.  Gen.,  234.) 

A  Navy  regulation  is  invalid  which  permits 
officers  of  the  staff  departments  of  the  Marine 
Corps  to  be  detached  permanently  from  the 
headquarters  of  the  Marine  Corps,  and  gives  the 
power  to  the  commandant  of  that  corps  to  impose 
duties  upon  these  staff  officers  inconsistent 
with  their  staff  functions.  (30  Op.  Attv. 
Gen.,  234.) 

DetaU  of  junior  staff  officer  as  head  of 
department. — It  is  clearly  inconsistent  with 
the  acta  of  Congress  relating  to  the  staff  of  the 
Marine  Corps,  up  to  and  including  the  act  of 
March  3,  1899,  section  22  (noted  under  sec. 
1596,  R.  S.),  to  relegate  the  quartermaster,  for 
example,  to  the  position  of  an  officer  in  his  own 
department,  and  to  raise  one  of  his  assistants 
to  a  position  not  recognized  in  the  statutes, 
namelv,  "officer  in  charge  of  the  quartermaster's 
department."  (30  Op.  Atty.  Gen.,  234.  But 
see  act  Aug.  29,  1916,  quoted  above.) 


Sec.  1599.  [Qualifications  for  appointment  and  promotion.     Superseded.] 


This  section  provided  as  follows: 
"Sec  1-599.  No  person  under  twenty  or  over 
twenty-five  years  of  age  shall  be  appointed  from 
civil  life  as  a  commissioned  officer  of  the  Marine 
Corps,  nor  shall  any  person  be  so  appointed 
until  his  cjualifications  for  such  service  have 
been  examined  and  approved,  under  the  direc- 
tions of  the  Secretary  of  the  Navy." — (25  July, 
1861,  c.  19,  3.  3,  V.  12,  p.  275.) 

It  was  superseded  bv  act  of  March  3,  1899 , 
section  20  (30  Stat.,  1008),  which  provided 
"that  no  person  except  such  officers  or  former 
graduates  of  the  Naval  Academy  as  have  served 
m  the  war  with  Spain,  as  hereinbefore  provided 
for,  shall  be  appointed  a  commissioned  officer 
in  the  Marine  Corps  who  is  under  twenty  or  over 
thirty  years  of  age;  and  that  no  person  shall  be 


appointed  a  commissioned  officer  in  said  corps 
until  he  shall  have  passed  such  examination  as 
may  be  prescribed  by  the  President  of  the 
United  States,  except  graduates  of  the  Naval 
Academv,  as  above  provided    *    *    *." 

The  said  act  of  March  3,  1899,  Section  19  (30 
Stat.,  1008),  pro\dded  that  "the  vacancies  exist- 
ing in  said  Corps  after  the  promotions  and 
appointments  herein  provided  for  shall  be  filled 
by  the  President  from  time  to  time,  whenever 
the  actual  needs  of  the  naval  service  require  it, 
first,  from  the  graduates  of  the  Naval  Academy 
in  the  manner  now  proA^ided  by  law;  or  second, 
from  those  who  are  serving  or  who  have  served 
as  second  lieutenants  in  the  Marine  Corps 
during  the  war  with  Spain;  or,  third,  from 
meritorious   noncommissioned   officers  of  the 


922 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1599. 


Marine  Corps;  or,  fourth,  from  civil  life:  Pro- 
vided, That  after  said  vacancies  are  once  filled 
there  shall  be  no  further  appointments  from 
civil  life." 

OTHER  LAWS   RELATING  TO   APPOINTMENT. 

Act  of  March  3, 1903  (32  Stat.,  1198),  provided 
"that  the  vacancies  now  existing  in  the  line  and 
the  staff  departments  of  the  Marine  Corps  and 
those  created  by  this  Act  below  the  grade  of 
brigadier-general  shall  be  filled,  respectively, 
first  by  promotion  by  seniority  and  then  by 
selection  and  appointment  as  now  provided  by 
law,  excepting  that  vacancies  in  the  grade  of 
second  lieutenant  shall  be  filled  first,  as  far  as 
practicable,  from  graduates  of  the  Naval 
Academy  each  year  on  completing  the  pre- 
scribed course  at  the  Naval  Academy,  exclu- 
sive of  the  probationary  tour  of  sea  service 
before  final  graduation,  then  from  meritorious 
noncommissioned  officers  and  from  ci^dl  life 
between  the  ages  of  twenty-one  and  twenty- 
seven  years." 

Act  of  May  13,  1908  (35  Stat.,  155),  provided 
"that  the  vacancies  now  existing  in  the  line 
and  staff  departments  of  the  United  States 
Marine  Corps  and  those  created  by  this  Act 
shall  be  filled  in  the  manner  provided  bylaw." 

Act  of  July  9,  1913  (38  Stat.,  103),  provided 
that  "midshipmen  on  graduation  shall  be  com- 
missioned ensigns  in  the  Navy,  or  may  be 
assigned  by  the  Secretary  of  the  Navy  to  fill 
vacancies  in  the  lowest  commissioned  grades  of 
the  Marine  Corps  or  Staff  Corps  of  the  Navy." 
(For  other  laws  relating  to  appointment  of  mid- 
sliipmen  on  graduation,  see  note  to  sec.  1521, 
R.  S.) 

Act  ofAugiist  29, 1916  (39  Stat.,  611),  provided 
"that  no  midshipman  at  the  United  States 
Naval  Academy  or  cadet  at  the  United  States 
Military  Academy  who  fails  to  graduate  there- 
from shall  be  eligible  for  appointment  as  a  com- 
missioned officer  in  the  Marine  Corps  until  after 
the  graduation  of  the  class  of  which  he  was  a 
member." 

The  said  act  of  August  29,  1916  (39  Stat., 
610),  further  provided  that  "appointees  to  the 
grade  of  second  lieutenant,  if  appointed  from 
civil  life,  shall  be  between  the  ages  of  tvventy 
and  twenty-five  years,  and  before  receiving  a 
commission  in  the  Marine  Corps,  each  appointee 
shall  establish  to  the  satisfaction  of  the  Secre- 
tary of  the  Navy  Ms  mental,  physical,  moral, 
and  professional  qualifications  for  such  com- 
mission." 

The  said  act  of  August  29,  1916  (39  Stat., 
610),  further  provided  that  "the  President  of 
the  United  States  be,  and  hereby  is,  author- 
ized, by  and  with  the  advice  and  consent  of 
the  Senate,  to  appoint  as  second  lieutenants 
on  the  active  list  in  the  United  States  Marine 
Corps,  to  take  rank  at  the  foot  of  the  list  of 
second  lieutenants  as  it  stands  at  the  date  of 
reinstatement,  former  officers  of  the  Marine 
Corps  who  resigned  from  the  naval  serAdce  in 
good  standing:  Provided,  That  they  shall  es- 
tablish their  moral,  physical,  mental,  and  pro- 
fessional qualifications  to  perform  the  duties 
of  that  grade  to  the  satisfaction  of  the  Sec- 
retary of  the  Navy:  Provided  further.  That  the 
Secretary  of  the  Navy,  in  his  discretion,  may 


waive  the  age  limit  in  fa^'or  of  the  aforesaid 
former  officers  of  the  Marine  Corps:  Provided 
further,  That  the  prior  service  of  such  officers 
and  the  service  after  reinstatement  shall  be  not 
less  than  thirty  years  before  the  age  of  retire- 
-ment." 

The  same  act  (39  Stat.,  611),  provided  "that 
appointments  from  noncommissioned  officers 
of  the  Marine  Corps  and  from  civil  life  shall  be 
for  a  prol)ationary  period  of  two  years  and  may 
be  revoked  at  any  time  during  that  period  by 
the  Secretary  of  the  Navy:  Provided  further, 
That  the  rank  of  such  officers  of  the  same  date 
of  appointment  among  themselves  at  the  end 
of  said  probationary  period  shall,  with  the 
approval  of  the  Secretary  of  the  Navy,  be  deter- 
mined by  the  rei)ort  of  a  board  of  Marine 
officers  who  shall  conduct  a  competitive  pro- 
fessional examination  under  such  rules  as  may 
be  prescribed  by  the  Secretary  of  the  Navy  and 
the  rank  of  such  officers  so  determined  shall  be 
as  of  date  of  original  appointment  with  reference 
to  other  appointments  to  the  Marine  Corps." 
The  act  of  May  22,  1917,  section  10  (40  Stat., 
87),  authorized  promotion,  during  the  exist- 
ing war,  of  probationary  second  lieutenants 
without  change  in  their  probationary  status. 
The  same  act  (39  Stat.,  611),  contained  a 
provision,  which  expired  two  years  after  the 
date  of  its  approval,  authorizing  the  transfer 
to  the  active  list  of  the  Marine  Corps  of  certain 
retired  officers,  officers  so  restored  to  be  addi- 
tional numbers  and  to  have  the  position  on  the 
active  list  which  they  would  have  had  if  not 
retired. 

By  act  of  June  4,  1920  (41  Stat.,  830),  pro- 
vision was  made  for  permanent  appointment 
in  the  Marine  Corps  of  officers  serving  tem- 
porarily in  the  grades  of  captain  and  below, 
such  appointments  to  be  made  without  regard 
to  age,  in  the  same  grades  as  held  temporarily 
or  lower  grades,  according  to  qualifications, 
it  being  required  that  such  officers  "shall 
establish  to  the  satisfaction  of  the  Secretary  of 
the  Navy,  under  such  rules  as  he  may  prescribe, 
their  mental,  moral,  professional,  and  physical 
qualifications  to  perform  the  duties  of  the  grade 
to  which  transferred  or  reappointed,"  and  that 
they  take  precedence  with  each  other  and  with 
other  officers  of  the  Marine  Corps  in  such  order 
as  may  be  recommended  by  a  board  of  Marine 
officers  and  approved  by  the  Secretary  of  the 
Navy. 

The  same  act  (41  Stat.,  830),  provided  "that 
all  persons  who  served  honorably  as  officers  in 
the  Marine  Corps  or  Marine  Corps  Reserve  on 
active  duty  at  any  time  between  April  6,  1917, 
and  the  date  of  the  passage  of  this  act,  and  who 
have  been  honorably  discharged  or  assigned 
to  inactive  duty  shall  be  eligible  for  permanent 
appointment  in  the  same  or  a  lower  rank  than 
that  held  on  discharge  or  assignment  to  inactive 
duty,  but  not  above  the  rank  of  captain,  to 
fUl  vacancies  existing  or  hereby  created  in  the 
permanent  authorized  strength  of  the  Marine 
Corps,"-  under  the  same  conditions  as  those 
above  set  forth  for  officers  then  in  the  service. 
All  appointments  under  the  act  of  June  4, 
1920,  from  former  officers,  or  officers  holding 
temporary  appointments,  or  members  of  the 
Marine  Corps  Reser\e,  were  required  to  be 
accomplished  by  June  30,  1921.  (41  Stat.,  830.) 


54641°— 22- 


-59 


923 


Sec.  1599. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


Officers  dropped  from  the  rolls  of  the  Navy  or 
Marine  Corps  on  account  of  absence  without 
leave  or  imprisonment  imder  sentence  of  civil 
courts,  shall  not  be  elis^ble  for  reapi)ointment. 
CfVct  Apr.  2,  1918,  40  Stat.,  501.  See  sec.  1441, 
R.  S.,  and  note  thereto  for  other  pro\isions 
disqualifjing  former  oflScers  and  midshipmen 
for  rea]ipointmentin  the  Navy  or  Marine  Corps.) 

QuaUlications  for  warrant  officers. — By  act  of 
Augxist"  29,  1916  (39  Stat.,  611),  creating  the 
warrant  grades  of  marine  g\mner  and  quarter- 
master clerk,  noted  under  section  1596,  Re- 
vised Statutes,  it  was  provided  that  "they 
shall  be  appointed  from  the  noncommissioned 
officers  of  the  ^Marine  Corps  and  clerks  to  quar- 
termasters now  ser\dng  as  such  and  who  have 
performed  field  service." 

By  act  of  June  4,  1920  (41  Stat.,  830),  it  was 
provided  that  officers  then  holding  temporary 
commissions  in  the  Marine  Corps,  and  who 
had  more  than  10  years'  ser^dce  therein,  if  not 
found  (qualified  for  permanent  commissions, 
may  be  appointed  warrant  officers  in  the 
Marine  Corps  if  "recommended  by  the  board 
herein  pro\ided  for." 

LAWS  RELATING  TO   PROMOTION. 

See  sections  1605-1607,  Revised  Statutes, 
as  to  advancement  for  heroism,  etc. 

Act  of  July  28,  1892  (27  Stat.,  321),  provided 
"That  hereafter  promotions  to  every  grade  of 
commissioned  officers  in  the  Marine  Corps 
below  the  grade  of  Commandant  shall  be  made 
in  the  same  manner  and  under  the  same  con- 
ditions as  now  are  or  may  hereafter  be  prescribed, 
in  pursuance  of  law,  for  commissioned  officers 
of  the  Army:  Provided,  That  examining  boards 
which  may  be  organized  under  the  pro^'ision3 
of  this  act  to  determine  the  fitness  of  officers 
of  the  Marine  Corps  for  promotion  shall  in  all 
cases  consist  of  not  less  than  five  officers,  three 
of  whom  shall,  if  practicable,  be  officers  of  the 
Marine  Corps,  senior  to  the  officer  to  be  exam- 
ined, and  two  of  whom  shall  be  medical  officers 
of  the  Navy:  Provided  further,  That  when  not 
practicable'to  detail  officers  of  the  Marine  Corps 
as  members  of  such  examining  boards,  officers 
of  the  line  in  the  Navy  shall  be  so  detailed. " 

Act  of  October  1,  1890  (26  Stat.,  562),  relating 
to  promotions  in  the  Army,  and  extended  to 
Marine  Corps  by  above  act  of  July  28,  1892, 
contained  the  following  provision  in  section  1 : 

"That  hereafter  promotion  to  every  grade 
in  the  A  rmy  below  the  rank  of  brigadier  general, 
throughout  each  arm,  corps,  or  department  of 
the  ser\ace,  shall;  subject  to  the  examination 
hereinafter  provided  for,  be  made  according 
to  seniority  in  the  next  lower  grade  of  that 
arm,  corps,  or  department  *  *  *."  The 
sams  act  of  October  1, 1890,  section  3,  contained 
the  following:  "That  the  President  be,  and  he 
is  hereby,  authorized  to  prescribe  a  system  of 
examination  of  all  officers  of  the  Army  below 
the  rank  of  major  to  determine  their  fitness  for 
promotion,  such  an  examination  to  be  con- 
ducted at  such  times  anterior  to  the  accruing 
of  the  right  to  promotion  as  may  be  best  for  the 
interests  of  the  service:  *  *  *  And  pro- 
vided, That  if  any  officer  fails  to  pass  a  satis- 
factory examination  and  is  reported  unfit  for 
promotion,  the  officer  next  below  him  in  rank. 


having  passed  said  examination,  shall  receive 
the  promotion:  And  provided.  That  should  the 
officer  fail  in  his  physical  examination  and  be 
found  incapacitated  for  service  by  reason  of 
physical  disability  contracted  in  line  of  duty 
he  shall  be  retired  w'ith  the  rank  to  which  his 
seniority  entitled  him  to  be  promoted;  but 
if  he  should  fail  for  any  other  reason  he  shall 
be  suspended  from  promotion  for  one  year, 
when  he  shall  be  reexamined,  and  in  case  of 
failure  on  such  reexamination  he  shall  be 
honorably  discharged  with  one  year's  pay 
from  the  Army." 

Act  of  March 3, 1899, auction  20  (30  Stat.,  1009), 
pro\ided,  "That  the  officers  of  the  Marine 
Corps  above  the  grade  of  captain,  except 
brigadier  general,  shall,  before  being  promoted, 
be  subject  to  such  physical,  mental  and  moral 
examination  as  is  now,  or  may  hereafter  be, 
prescribed  by  law  for  other  officers  of  the 
Marine  Corps." 

By  said  act  of  March  3,  1899,  section  18  (30 
Stat.,  1008),  it  was  provided  that  "vacancies 
in  the  grade  of  brigadier  general  shall  be  filled 
by  selection  from  officers  on  the  active  list  of 
the  Marine  Corps  not  below  the  grade  of  field 
officer."  By  act  of  August  29,  1916  (39  Stat., 
609,  610),  it  was  provided  that  "brigadier 
generals  shall  be  appointed  from  officers  of  the 
Marine  Corps  senior  in  rank  to  lieutenant 
colonel";  that  the  Commandant  shall  be 
appointed  from  officers  of  the  active  list  not 
below  the  rank  of  colonel;  and  that  officers 
holding  permanent  appointments  in  the  staff 
departments  shall  not  be  eligible  for  appoint- 
ment to  the  grade  of  brigadier  general  of  the 
line. 

Act  of  June  3,  1916,  section  24  (39  Stat.,  183), 
made  applicable  to  the  Maiine  Corps  by  act  of 
July  28,  1892,  above  quoted,  provided,  "That 
the  provisions  of  existing  law  requiring  exam- 
inations to  determine  fitness  for  promotion  of 
officers  of  the  Army  are  hereby  extended  to 
include  promotions  to  all  grades  below  that 
of  brigadier  general :  Provided  further.  That  ex- 
aminations of  officers  in  the  grades  of  major 
and  lieutenant  colonel  shall  be  confined  to 
problems  involving  the  higher  functions  of 
staff  duties  and  command. " 

Act  of  August  29,  1916  (39  Stat.,  610),  pro- 
vided "That  for  the  purpose  of  advancement  in 
rank  to  "^nd  including  the  grade  of  colonel,  all 
commissioned  officers  of  the  line  and  staff  of 
the  Marine  Corps  shall  be  placed  on  a  common 
list  in  the  order  of  seniority  each  would  hold 
had  he  remained  continuously  in  the  line. 
All  advancements  in  rank  to  captain,  major, 
lieutenant  colonel,  and  colonel  shall,  subject 
to  the  usual  examinations,  be  made  from  offi- 
cers with  the  next  junior  respective  rank, 
whether  of  the  line  or  staff,  in  the  order  in 
which  their  names  appear  on  said  list." 

The  said  act  of  August  29, 1916  (39  Stat.,  611), 
further  enacted  that  "the  proAdsions  of  sec- 
tions fourteen  hundred  and  ninety-three  and 
fourteen  hundred  and  ninety-four  of  the  Re- 
vised Statutes  of  the  United  States  shall  apply 
to  the  Marine  Corps."  (See  said  sections  and 
notes  thereto.  Sec.  1493  required  physical  quali- 
fication for  promotion  to  all  grades  in  the 
Navy,  except  in  the  case  specified  in  sec.  1494, 
of  partial  disability  incurred  in  line  of  duty.) 


924 


The  Navy. 


Tt.  2.  REVISED  STATUTES. 


Sec.  1599. 


By  said  act  oi  August  29,  1916  (39  Stat.,  611, 
612),  it  was  provided  that — 

"lu  lieu  of  suspension  from  promotion  of  any 
officer  of  the  Marine  Corps  who  hereafter  fails 
to  pass  a  satisfactory  professional  examination 
for  promotion,  or  who  is  now  under  suspension 
from  promotion  by  reason  of  such  failure,  such 
officer  shall  suffer  loss  of  numbers,  upon  ap- 
proval of  the  recommendation  of  the  examin- 
ing board,  in  the  respective  ranks,  as  follows: 
Lieutenant  colonel,  one;  major,  two;  captain, 
three;  first  lieutenant,  five;  second  lieutenant, 
eight:  Provided,  That  any  such  officer  shall  be 
reexamined  as  soon  as  may  be  expedient  after 
the  expiration  of  six  months  if  he  in  the  mean- 
time again  becomes  due  for  promotion,  and  if 
he  does  not  in  the  meantime  again  become  due 
for  promotion  he  shall  be  reexamined  at  such 
time  anterior  to  again  becoming  due  for  pro- 
motion as  may  be  for  the  best  interests  of  the 
8er\ice:  Provided  further,  That  if  any  such 
officer  fails  to  pass  a  satisfactory  professional 
reexamination  he  shall  be  honorably  dischargea 
with  one  year's  pay  from  the  Marine  Corps." 

Act  of  March  4,  1917  (39  Stat.,  1171),  empow- 
ered commanding  officers  on  foreign  stations, 
when  authorized  by  the  Secretary  of  the  Navy, 
to  order  boards  of  medical  examiners  and  exam- 
ining boards  for  examination  of  candidates  for 
promotion  in  the  Marine  Corps.  (See  note  to 
sec.  1493,  R.  S.) 

Act  of  June  4,  1920  (41  Stat.,  774),  relating  to 
the  Army  provided  that  "Existing  laws  pro- 
viding for  the  examination  of  officers  for  promo- 
tion are  hereby  repealed,  except  those  relating 
to  physical  examination,  which  shall  continue 
to  be  required  for  promotion  to  all  grades 
below  that  of  brigadier  general,  and  except 
also  those  governing  the  examination  of  officers 
of  the  Medical,  Dental,  and  Veterinary  Corps." 
(As  to  effect  of  this  act  upon  promotions  in  the 
Marine  Corps,  see  decisions  noted  below.) 

By  said  act  of  June  4,  1920,  section  51  (41 
Stat.,  785,  amending  act  June  3,  1916,  sec.  127, 
39  Stat.,  217),  it  was  pro\dded  that  "in  time  of 
war  any  officer  of  the  Regular  Army  may  be 
appointed  to  higher  temporary  rank  without 
vacating  his  permanent  commission,  such  ap- 
pointments in  gi-ades  below  that  of  brigadier 
general  being  made  by  the  President  alone,  but 
all  other  appointments  of  officers  in  time  of  war 
shall  be  in  the  Officers'  Reserve  Corps." 

Probationary  appointments. — ^The  act  of 
August  29,  1916  (above  quoted),  does  not  con- 
ternplate  the  issuance  of  probationary  appoint- 
ments to  former  officers  of  the  IMarine  Corps 
appointed  as  second  lieutenants  in  accordance 
with  that  act.  (File  13261-544:  1,  Oct.  10, 
1916.) 

Appointment  of  former  student  at 
Naval  Academy. — Under  the  act  of  March  3, 
1899,  providing  for  filling  vacancies  thereby 
created  in  the  staff  of  the  Marine  Corps,  and 
making  eligiljle  for  appointment  thereunder 
line  officers  on  the  active  list  of  the  Marine 
Corps  not  below  the  grade  of  captain,  "who 
shall  have  seen  not  less  than  ten  years'  service 
in  the  Marine  Corps,"  held  that  in  estimating 
the  time  which  is  necessary  for  qualification  for 
the  promotion  pro^dded  for,  the  time  of  ser^dce 
as  a  naval  cadet  at  the  Naval  Academy  and  at 
sea    before    being    commissioned    should    be 


coimted.  This  view  is  sustained  by  the  act  of 
June  10,  1896  (noted  under  sec.  1600,  R.  S.). 
f22  Op.  Atty.  Gen.,  377.) 

There  can  be  no  doubt  about  the  proposition 
that  the  time  of  service  of  a  cadet  at  the  Naval 
Academy  and  at  sea  anterior  to  commission  is 
as  much  a  time  of  preparation  for  service  in  the 
Marine  Corps  as  it  is  in  the  Navy  proper,  be- 
cause the  Marine  Corps  is  an  essential  part  of 
the  naval  organization.  Such  time  of  prepara- 
tion at  the  Academy  and  at  sea  having  always 
been  counted  for  appointments  and  promotions 
in  the  Navy  proper,  and  the  Marine  Corps  being 
part  of  the  Navy,  there  is  no  reason  why  the 
benefits  of  time  at  the  Academy  and  at  sea  an- 
terior to  commission  should  not  he  given  to 
persons  seeking  promotion  in  the  Marine  Corps 
as  well  as  in  the  Navy  proper.  (22  Op.  Atty. 
Gen.,  377,  379.) 

A  person  who  took  the  regular  four  years' 
course  at  the  Naval  Academy,  and  received  a 
certificate  of  graduation  issued  pursuant  to  the 
act  of  August  5,  1882  (22  Stat.,  284),  without 
rendering  the  two  years'  service  at  sea  then 
required  for  final  graduation,  held  to  be  a  grad- 
uate of  the  Naval  Academy  within  the  meaning 
of  section  20  of  the  Navy  personnel  act  ap- 
proved March  3,  1899,  providing  for  filling 
vacancies  in  the  Marine  Corps.  (22  Op.  Atty. 
Gen.,  485.) 

The  exemption  as  to  age  limit  in  section  20 
of  the  act  of  March  3,  1899  (above  quoted), 
with  reference  to  the  eligibility  to  appoint- 
ments in  the  Marine  Corps,  is  not  restricted  to 
those  who  served  in  the  Marine  Corps  during 
the  war  with  Spain,  but  extends  to  all  gi-adu- 
ates  of  the  Naval  Academy  who  served  in  that 
war,  including  one  who  so  served  in  the  line  of 
the  Navv.     (22  Op.  Atty.  Gen.,  485.) 

See  act  of  March  4,  1913  (37  Stat.,  891),  pro- 
viding that  service  of  a  midshipman  at  the 
Naval  Academy,  thereafter  appointed  to  said 
Academy,  "shall  not  be  counted  in  computing 
for  any  purpose  the  length  of  serAdce  of  any  offi- 
cer in  the  Navy  or  in  the  Maiine  Corps." 

See  section  1520,  Revised  Statutes,  and 
amendments  noted  thereunder,  as  to  four  years' 
course  at  the  Naval  Academy. 

See  section  1621,  Revised  Statutes,  and  note 
thereto,  as  to  status  of  Marine  Corps. 

Appointments  from  enlisted  men  and 
civil  life. ^Section  19  of  the  Navy  personnel 
act  of  March  3,  1899,  and  the  act  of  March  3, 
1903  (both  above  quoted),  considered,  and  held, 
1st.  That  appointments  to  the  grade  of  second 
lieutenant  in  the  Marine  Corps  may  be  made 
from  civil  fife;  2d.  That  the  limitation  as  to 
age  of  appointees,  contained  in  the  latter  act, 
appUes  only  to  appointments  from  civil  life; 
3d.  That  enlisted  men  of  the  Marine  Corps, 
other  than  noncommissioned  officers,  and  also 
enfisted  men  of  the  Navy,  may  be  appointed 
as  second  lieutenants.  (File  13261-426,  May  29, 
1913,  citing  file  3727-2,  Feb.  17,  1906,  and 
3259-98,  May  19,  1898.) 

Appointment  and  promotion  distin- 
guished.— -See  note  to  sections  1458  and  1603, 
RoA-ased  Statutes; 

Laws  relating  to  promotion  construed. — 
Pre\iou3  to  the  act  of  July  16,  1862,  chapter 
183,  there  was  no  law  which  required  officers  in 
any  branch  of  the  naval  service,  including  the 


925 


Sec.  1599. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Mariiu'  Corps,  to  pass  a  ph\-8ical  examination  as 
a  preliminary  to  promotion.  The  fourth  sec- 
tion ol  that  act  directed  the  Secretary  of  the 
Navy  to  a]ipoint  an  atlvisory  board  of  naval 
ollicers,  whoso  duty  it  was  to  carefully  scruti- 
nize the  active  list  of  line  ollicers  in  the  Navy 
above  and  including  tlu;  grade  of  master,  and 
rojwrt  to  the  Secretary  in  ^vriting  those  found 
to  be  worthy  of  promotion.  The  board  in 
recommending  an  officer  for  promotion  w'as  to 
certify  that  he  "has  the  moral,  mental,  physi- 
cal, and  professional  qualifications  to  perform 
efficiently  all  his  duties,  both  at  sea  and  on 
shore,  of  the  grade  to  which  he  is  to  be  pro- 
moted . "  By  the  sixth  section  of  the  same  act  a 
similar  advisory  board  was  to  be  appointed  at 
least  once  in  every  four  years.  These  pro\'i- 
sions  applied  solely  to  line  officers  of  the  Navy, 
but  were  superseded  by  other  provisions  on  the 
same  subject  contained  in  the  act  of  April  21, 
1804,  chapter  63.  The  latter  provisions  are 
embodied  in  sections  1493,  et  seq.,  of  the 
Revised  Statutes.  They  include  both  line 
and  staff  officers,  but  in  terms  extend  to  those 
only  who  are  "on  the  active  list  of  the  Navy." 
There  is  no  statutory  provision  of  this  character 
which  expressly  or  impliedly  includes  officers 
of  the  Marine  Corps.  (17  Op.  Atty.  Gen.,  117, 
June  11,  1881.) 

Section  1493  of  the  Revised  Statutes,  requir- 
ing physical  examinations  for  promotion  in  the 
Navy,  "is  not  extended  to  the  Marine  Corps  by 
section  1621,  Re\dsed  Statutes.  (17  Op.  Atty. 
Gen.,  117,  June  11,  1881.) 

It  would  seem  that  the  examination,  physical 
or  other,  of  a  retiring  board,  constituted  under 
section  1623,  Revised  Statutes,  is  the  only  one 
to  which  an  officer  of  the  Marine  Corps  is  by 
law  subjected  in  order  to  determine  his  fitness 
for  active  duty;  and  unless  the  officer  is  by 
this  board  found  incapacitated  for  active  serv- 
ice, and  the  finding  is  approved  by  the  Presi- 
dent, he  remains  in  the  line  of  promotion  on 
the  active  list  as  he  previously  was,  and  is 
entitled  to  all  the  rights  which  belong  to  his 
position.  (17  Op.  Atty.  Gen.,  117,  June  11, 
1881.^ 

The  act  of  October  1,  1890  (26  Stat.,  562), 
which  was  extended  to  the  Marine  Corps  by 
the  act  of  July  28,  1892  (above  quoted),  pro- 
vided that  examinations  for  promotion  were 
to  be.held  at  such  times  "anterior  to  the  accru- 
ing of  the  right  to  promotion"  as  may  be  best 
for  the  interoflts  of  the  service.  A  question 
haA'ing  arisen  as  to  whether  certain  officers  to  be 
promoted  in  the  Marine  Corps  to  vacancies 
created  on  July  10,  1892,  in  the  offices  of  major, 
captain,  and  first  lieutenant,  should  or  should 
not  be  examined  under  the  act  of  July  28,  1892, 
held,  that  said  promotions  might  be  made  with- 
out the  examinations  in  question;  that  the  right 
of  the  officers  in  question  to  promotion  existed 
from  July  10,  1892,  prior  to  the  passage  of  the 
law  requii'ing  examination;  that  the  act  of 
October  1,  1890,  having  been  construed  by  the 
Army  as  not  requiring  examinations  for  officers 
who  had  previously  become  due  for  promotion, 
it  must  be  understood  that  Congress  enacted  the 
law  of  July  28, 1892,  Avith  full  knowledge  of  such 
construction,  and  did  not  intend  that  a  right  of 
promotion  earned  by  long  ser\'ice  and  actually 
accrued  should  be  taken  away  by  force  of  the 


latter  enactment.  (20  Op.  Atty.  Gen.,  433; 
compare  cases  noted  under  sec.  1458,  R.  S.) 

The  words  "usual  examinations,"  as  used  in 
the  act  of  August  29,  1916  (above  quoted),  re- 
ferred to  the  mental,  moral,  professional,  and 
physical  examinations  for  promotion  which  offi- 
cers of  the  Marine  Corps  \w\o\y  the  grade  of 
major  were  required  to  undergo  by  virtue  of  the 
Army  act  of  October  1,  1890,  made  applicable 
to  the  Marine  Corps  by  act  of  July  28,  1892;  the 
mental,  moral,  and  physical  examinations 
which  officers  of  the  Marine  Corps  above  the 
rank  of  captain,  except  brigadier  generals,  were 
required  to  undergo  by  the  act  of  March  3,  1899; 
the  professional  examination  which  officers  of 
the  Marine  Corps  of  the  ranks  of  major  and  lieu- 
tenant colonel  were  required  to  undergo  by 
virtue  of  the  Army  act  of  June  3,  1916,  made 
applicable  to  the  Marine  Corps  by  the  act  of 
July  28,  1892;  and  the  physical  examination 
which  all  officers  of  the  Marine  Corps  were  re- 
quired to  undergo  by  virtue  of  section  1493  of 
the  Revised  Statutes,  relating  to  the  Navy,  and 
made  applicable  to  the  Marine  Corps  by  the 
act  of  August  29,  1916.  (File  26521-405:1, 
Sept.  15,  1920;  see  also  26521-405,  June  30, 
1920.  The  laws  referred  to  are  quoted  above, 
under  this  section.) 

The  act  of  August  29,  1916,  should  be  con- 
strued as  referring  to  the  "usual  examinations" 
which  were  required  by  law  in  the  Marine 
Corps_  on  that  date,  regardless  of  whether  such 
examinations  were  originally  prescribed  by 
Army  laws,  Navy  laws,  laws  relating  specifi- 
cally to  the  Marine  Corps,  or  a  lawful  regulation 
of  the  Executive.  No  reference  was  made  in 
said  act  to  examinations  which  might  there- 
after be  prescribed  by  law  for  the  Army  or 
Navy,  and  accordingly  the  system  of  examina- 
tions then  in  force,  and  specifically  required 
for  the  Marine  Corps  by  the  act  of  August  29, 
1916,  must  continue  to  be  required  until  other- 
wise pro\dded  by  Congress;  it  could  not  be 
affected  by  any  subsequent  legislation  relating 
specifically  to  examinations  in  the  Army  and 
which,  in  terms,  is  inapplicable  to  the  Marine 
Corps.  So  long  as  promotions  in  the  Marine 
Corps  are  made  pursuant  to  the  act  of  August 

29,  1916,  such  promotions  must  be  subject  to 
the  "usual  examinations"  which  were  required 
at  the  time  said  act  was  enacted,  unless  and 
until  Congress  otherwise  directs.  (File  26521- 
405:1,  Sept.  15,  1920;  see  also  26521-405,  June 

30,  1920.) 

Prior  to  the  enactment  of  the  Army  act  of 
June  4,  1920  (41  Stat.,  774),  the  system  of  pro- 
motion in  the  Marine  Corps  was  well  under- 
stood. The  act  of  August  29,  1916,  provided 
that  advancements  in  rank  in  the  Marine  Corps, 
to  and  including  the  grade  of  colonel,  were  to 
be  made  according  to  seniority  from  a  ' '  common 
list,"  and  that  advancements  in  rank  to  cap- 
tain, major,  lieutenant  colonel,  and  colonel 
were  to  be  made  "subject  to  the  usual  exami- 
nations." There  were  other  provisions  in  the 
act  which  clearly  indicated  that  the  usual  ex- 
aminations were  also  intended  to  apply  to  pro- 
motions to  the  grade  of  first  lieutenant.  (File 
26521-405:1,  Sept.  15,  1920;  see  also  26521-405, 
June  30,  1920.) 

The  repeal  of  prior  Army  laws  on  the  subject 
of  promotion,  by  the  act  of  June  4,  1920  (41 


926 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1600. 


Stat.,  774),  without  the  substitution  of  any 
other  constructive  legislation  applicable  to  the 
Marine  Corps,  leaves  nothing  upon  which  the 
act  of  July  28, 1892,  can  operate,  and  the  Marine 
Corps  is  now  governed  wholly  by  the  system  of 
promotion  pro\dded  for  by  the  act  of  August 
29, 1916,  and  prior  statutes  adopted  by  reference 
therein  or  which  are  not  inconsistent  there- 
vrith.  Query:  \\Tiether  the  ax;t  of  July  28, 
1892,  has  been  superseded  or  repealed  in  its 
entirety?  (File  26521-405 :1,  Sept.  15,  1920;  see 
also  26521-405,  June  30,  1920.) 

The  system  of  promotion  in  the  Marine  Corps, 
including  examinations  and  penalties,  con- 
tinues in  force  unaffected  by  anything  con- 
tained in  the  act  of  June  4,  1920,  establishing  a 
new  system  of  promotion  in  the  Army.  (File 
26521-405:1,  Sept.  15,  1920;  see  also  26521-405, 
June  30,  1920.) 

The  promotion  legislation  in  the  Army  act 
of  June  4,  1920,  which  covers  several  printed 
pages  of  that  act,  is  clearly  not  applicable  to 
the  Marine  Corps  in  its  entu-ety.  For  example, 
said  act  requires  that  promotions  shall  be  made 
from  a  common  list  of  all  officers  of  the  Army 
below  the  grade  of  colonel,  with  certain  excep- 
tions, and  that  this  "promotion  list"  shall  be 
formed  by  a  board  of  officers  appointed  by  the 
Secretary  of  War,  "consisting  of  one  colonel  of 
each  of  six  branches  of  the  service  in  which 
officers  are  permanently  commissioned  under 
the  terms  of  this  act,  and  one  officer  who,  as  a 
member  of  the  personnel  branch  of  the  General 
Staff,  has  made  a  special  study  of  merging 
the  present  promotion  lists  into  a  single  list." 
It  would  be  impossible  to  convene  a  board 
in  the  Marine  Corps  constituted  as  required 
by  this  provision  to  form  a  promotion  list 
for  that  service.  The  further  provisions  of 
the  Army  act  make  it  clear  that  the  system 
which  it  creates  was  never  intended  to  apply 
to  promotions  in  the  Marine  Corps.  (File 
26521-405:1,  Sept.  15,  1920;  see  also  26521-405, 
June  30,  1920.) 

The  Army  legislation  of  June  4, 1920,  relating 
to  promotions,  being  as  a  whole  clearly  inappli- 
cable to  the  Marine  Corps,  it  can  not  be  held 
that  a  part  of  one  sentence  therein,  which  re- 
peals "existing  laws  providing  for  the  examina- 
tion of  officers  for  promotion  *  *  *  except 
those  relating  to  physical  examination,  which 
shall  continue  to  be  required  for  promotion 
to  all  grades  below  that  of  brigadier  general 
*  *  *, "  should  be  applied  to  the  Marine 
Corps,  and  given  the  far-reaching  effect  of  tear- 
ing down  a  carefully  constructed  system  already 
in  operation  in  that  serWce,  without  providing 
anything  in  its  place.     The  repealing  clause 


can  not  be  separated  from  the  remainder  of  the 
act,  which  provides  a  complete  substitute  for 
the  former  system  of  promotion  in  the  Army, 
and  which  was  apparently  regarded  as  dispens- 
ing -n-ith  the  necessity  for  the  former  tests  of 
efficiency,  thus  explaining  the  repeal  of  the 
former  laws  relating  to  examinations,  in  so  far 
as  such  laws  affected  the  Army.  (File  26521- 
405:1,  Sept.  15,  1920;  see  also  26521-405,  June 
30,  1920.) 

The  new  Army  system  of  promotion  was  es- 
tablished as  a  substitute  for  and  supersedes  the 
former  system  followed  in  the  Army  under  the 
actof  October  1, 1890,  and  amendments  thereto. 
It  does  not,  however,  pro\ide  any  substitute 
for  the  system  of  promotion  already  in  force  in 
the  Marine  Corps,  and  therefore  cloes  not  su- 
persede the  Marine  Coi-ps  system  which  the 
act  plainly  indicates  was  not  intended  to  be 
affected  thereby.  It  is  not  reasonable  to  as- 
sume that  Congress  intended  with  respect  to 
the  Marine  Corps  to  repeal  prior  laws  relating 
to  examinations  for  promotion  without  pro- 
\iding  any  substitute  therefor,  at  the  very 
time  it  was  creating  in  detail  a  complete  sub- 
stitute for  such  laws  in  the  Army.  (File  26521- 
405:1,  Sept.  15,  1920;  see  also  26521-405,  June 
30,  1920.) 

The  provision  in  the  Army  act  of  June  4, 
1920,  requiring  physical  examinations  for  pro- 
motion to  all  grades  below  that  of_  brigadier 
general,  is  not  applicable  to  the  Marine  Corps, 
for  the  reason  that  physical  examinations 
prior  to  promotion  to  all  grades  in  the  Marine 
Corps,  without  exception,  are  required  by  the 
Navy  law  contained  in  section  1493  of  the 
Re^■ised  Statutes,  as  extended  and  applied  to 
the  Marine  Corps  by  the  act  of  August  29,  1916, 
which  legislation  for  physical  examinations 
in  the  Marine  Corps  in  accordance  with  Navy 
laws,  certainly  is  not  repealed  by  said  act  of 
June  4,  1920.  (File  26521-405:1,  Sept.  15, 
1920;  see  also  26521-405,  June  30, 1920.) 

Under  the  laws  in  force  prior  to  Jime  4,  1920, 
and  which  continued  in  force  unaffected  by  the 
Army  act  of  that  date,  held:  (1)  A  mental, 
moral,  and  professional  examination  is  required 
for  promotion  in  the  Marine  Corps  to  the  grades 
of  first  lieutenant,  captain,  major,  lieutenant 
colonel,  and  colonel;  but  not  to  the  grades  of 
brigadier  general  and  major  general.  (2)  A 
mental,  moral,  and  physical  examination  is 
required  in  the  Marine  Corps  for  promotion  to 
the  grade  of  brigadier  general,  and  a  physical 
examination  is  required  for  promotion  to  the 
grade  of  major  general.  (File  26521^05:1, 
Sept.  15,  1920;  see  also  26521-405,  June  30, 
1920.) 


Sec.  1600.  [Credit  for  volunteer  service.]  All  marine  officers  shall  be 
credited  with  the  length  of  time  they  may  have  been  employed  as  officers  or 
enlisted  men  in  the  volunteer  service  of  the  United  States. —  (2  Mar.,  1867, 
c.  174,  s.  3,  V.  14,  p.  516.) 


All  officers  appointed  to  any  corps  of  the  Navy 
or  to  the  Marine  Corps,  after  service  in  a 
different  corps  of  the  Navy  or  of  the  Marine 
Corps,  shall  have  all  the  benefits  of  their 
pre\dous  service  in  the  same  manner  as 
if  said  appointments  were  a  reentry  into 


the  Navy  or  into  the  Marine  Corps.  (Act 
June  10,  1896,  29  Stat.,  361.)  _ 
Any  warrant  officer  or  pay  clerk  in  the  Marine 
Corps  who  accepts  appointment  as  com- 
missioned officer  in  Marine  Corps  Reserve 
shall  be  entitled,  upon  termination  of  such 


927 


Sec.  1601. 


Pt.2.  REVISED  STATUTES. 


The  Navy. 


appointment,  to  revert  to  his  former  status 
tis  a  warrant  officer  or  pav  clerk  in  the 
Marine  Corps,  and  shall  "be  entitled  to 
count  all  active  reserve  service  for  pur- 
poses of  longevity  pay  and  retirement. 
(Act  July  11,  1919,  41  Stat.,  141.) 

Enlisted  men  of  the  Marine  Corps  discharged 
to  be  commissioned  or  warranted  as  officers 
in  the  Marine  Corps  Reserve,  and  who 
reenlist  in  the  Marine  Corps  after  termina- 
tion of  reserve  service,  shall  be  entitled  in 
computing  ser\'ice  for  retirement  to  credit 
for  all  active  reserve  ser\ice.  (Act  July 
11,  1919,41  Stat.,  141.) 

Enlisted  men  of  the  Marine  Corps  discharged 
to  be  commissioned  or  warmnted  in  the 
Marine  Corps  Reserve,  and  who  reenlist 
in  the  Marine  Corps  within  three  months 
from  date  of  termination  of  reserve  service, 
shall  be  restored  to  grade  or  rank  held 
before  being  discharged  fiom  Marine 
Corps,  and  ser^•ice  in  the  regular  Marine 
Corps,  including  active  service  in  the 
Marine  Corps  Reserxe  shall  be  regarded  as 
continuous  for  purposes  of  continuous 
service  pay.  (Act  July  11,  1919,  41  Stat., 
141.)- 

1  .ongevity  pay  for  officers  in  the  Anny,  Navy, 
Marine  Corps,  Coast  Guard,  Public  Health 
Service,  and  Coast  and  Geodetic  Survey, 
shall  be  based  on  the  total  of  all  service 
in  any  or  all  of  said  serxaces.  (Act  May  18, 
1920,  sec.  11,  41  Stat.,  604.) 

Musicians  of  the  ]\farine  Band  are  to  have  no 
increase  in  their  rates  of  pay  on  account  of 
length  of  service.  (Act  Aug.  29,  1916, 
39  Stat.,  612.)_ 

Ser\ice  of  a  midshipman  at  the  Naval  Academy 
or  of  a  cadet  at  the  Military  Academy 
hereafter    appointed    to    either    of    said 


academies,  shall  not  be  counted  in  com- 
puting for  any  purpose  the  length  of 
service  of  any  officer  in  the  Navy  or  Slarine 
Corps.     (Act  Mar.  4,  1913,  37  Stat.,  891.  j 

Service  as  paymaster's  steward. — The 
Revised  Statutes,  Title  XY,  chapter  9,  classify 
the  Marine  Corps  as  part  of  the  Navy,  and  pro- 
vide (sec.  1600),  that  all  marine  officers 
shall  be  credited  with  the  length  of  time  they 
may  have  been  employed  as  officers  or  enlisted 
men  in  the  volunteer  service  of  the  United 
States.  An  officer  of  the  Marine  Corps  who 
served  as  a  paj-master  's  steward  in  the  Volun- 
teer Navy  is  entitled  to  ha\e  the  time  of  such 
ser\dce  credited  to  him  in  the  computation  of 
his  longex'ity  pay.  (Muse  v.  U.  S.,  19  Ct.  Cls., 
441.) 

The  Na\^^  Regulations  classify  paymasters' 
stewards  as  petty  officers,  and  the  Revised 
Statutes  (sec.  1410)  include  petty  officers  in 
the  more  general  designation  of  "all  officers." 
It  is  not,  however,  to  be  understood  that  all 
petty  officers  are  officers  within  the  intent  of 
the  ('onstitution  or  of  a  penal  statute.  In  the 
Navy,  warrant  officers  and  petty  officers  are 
spoken  of  generally  as  officers,  and  section  1410 
merely  recognizes  the  usage.  (Muse  v.  U.  S., 
19  Ct.  Cls.,  441.) 

The  Na^•y  consists  of  officers,  warrant  officers, 
petty  officers,  and  seamen.  The  two  terms 
used  in  section  1600,  "officers"  and  "enlisted 
men"  embrace,  for  the  purpose  of  computing 
longevity  pay,  all  four  classes  in  the  Navy. 
(Muse  V.  V.  S.,  19  Ct.  Cls.,  441.) 

For  other  cases,  see  note  to  section  1612, 
Revised  Statutes,  respecting  longevity  pay; 
see  also  note  to  section  1599,  Revised  Statutes, 
under  "  Appointment  of  former  student  at  the 
Naval  Academy." 


Sec.  1601.  [Rank  of  commandant.     Repealed.] 


This  section  provided  as  follows: 

'"Sec.  1601.  The  commandant  of  the  IMarine 
Corps  shall  have  the  rank  of  a  brigadier-general 
of  the  Army. "  •  (2  Mar.,  1867,  c.  174,  s.  7,  v.  14, 
p.  517.     6  7une,  1874,  c.  216,  v.  18,  p.  58.) 

It  was  repealed  by  act  of  June  6,  1874 
(18  Stat.,  58),  which  pro\-ided  that  "the 
office  of  commandant  of  the  Marine  Corps 
having  the  rank  of  a  brigadier  general  of  the 
Army  shall  continue  until  a  vacancy  shall 
occur  in  the  same  and  no  longer;  and  when 
such  vacancy  shall  occur  in  said  office,  imme- 
diately thereupon  all  laws  and  parts  of  laws 
creating  said  office  shall  become  inoperative, 
and  sliall  by  virtue  of  this  act  from  thence- 
forth be  repealed:  And  provided  further,  That 
thereafter  the  commandant  of  the  Marine 
Corps  shall  have  the  rank  and  pay  of  a  colonel, 
and  shall  l>e  appointed  by  selection  by  the 
President  from  the  officers  of  said  corps."  (See 
sec.  5601,  R.  S.) 

Rank  of  brigadier  general  restored.— 
By  act  of  March  3,  1899,  section  18  (39  Stat., 
1008 ),  it  was  provided  '  'that  from  and  after  the 
dale  of  the  approval  of  this  Act  the  active  list 
of  the  line  officers  of  the  United  States  Marine 
Corps  shall  consist  of  one  brigadier  general 
commandant    *    *    *. " 


Rank    of    major    general    created. — By 

act  of  July  1,  1902  (32  Stat.,  686),  the  com'- 
mandant  was  given  the  rank  of  major  general 
during  the  ser\-ice  of  the  then  incumbent;  by 
act  of  May  13,  1908  (35  Stat.,  155),  there  was 
authorized  "one  major  general  commandant, 
in  lieu  of  the  present  brigadier  general  com- 
mandant;" and  by  act  of  December  19,  1913 
(38  Stat.,  241),  which  fixed  the  commandant's 
term  of  office  at  four  years,  it  was  provided 
that  the  appointee  should  be  an  officer  of  the 
active  list  not  below  the  grade  of  field  officer 
who,  while  serving  as  commandant,  should 
have  the  rank  of  major  general  and  be  carried 
as  an  additional  number  in  his  grade  and  after 
his  return  to  duty  in  his  gi'ade  until  said  grade 
is  reduced  to  the  number  authorized  by  law. 
By  act  of  August  29,  1916  (39  Stat.,  609),  it  was 
provided  that  appointments  thereafter  made 
to  '  'the  position  of  major  general  commandant," 
shall  be  from  officers  of  the  active  list  of  the 
Marine  Corps  not  below  the  i-ank  of  colonel, 
and  that '  'in  determining  the  officers  with  rank 
senior  to  colonel  there  shall  be  included  the 
officer  serving  as  major  general  commandant.  " 
The  act  of  July  1,  1918  (40  Stat.,  715),  which 
created  the  pennanent  grade  of  major  general 
in  the  Marine  Corps,  authorized  the  appoint- 


928 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1602. 


ment  to  that  grade  of  one  major  general,  "who 
shall  at  all  times  be  junior  in  rank  to  the 
Major  General  Commandant,  and  also  one 
temporary  major  general  in  the  Marine  Corps, 
who  shall  at  all  times  be  junior  to  the  per- 
manent major  general." 

Rank  on  retirement.^ — The  Major  General 
Commandant,  if  retired  fi-om  that  position  in 
accordance  ^\^th  sections  1251,  1G22,  and  1623, 
Revised  Statutes  (physical  disability  incident 
to  the  ser^dce),  or  by  reason  of  age  or  length  of 
service,  shall  have  the  rank  and  retired  pay  of 
major  general;  if  retired  for  any  other  reason, 
he  shall  be  placed  on  the  retired  list  of  officers 
of  the  gi'ade  to  which  he  belonged  at  the  time  of 
his  retirement.  (Act  Dec.l9, 1913,  38  Stat. ,241.) 

Active  duty  after  retirement. — -After  a 
Commandant  of  the  Marine  Corps  is  placed 
upon  the  retired  list  of  officers  of  that  corps  on 
account  of  age,  he  can  not  legally  be  retained 
in  his  former  office  of  Commandant  until  his 
successor  is  appointed.  The  general  statute 
authorizing  the  detail  of  retired  ofhcers  to 
active  duty  did  not  modify  the  special  provd- 
sion  of  law  that  the  Commandant  shall  be  ap- 
pointed from  officers  of  the  active  list,  which 
applies  to  all  appointments,  whether  regular 
or  for  a  limited  time.  (28  Op.  Atty.  Gen.,  486; 
see  also  note  to  see.  1622,  R.  S.) 

Filling  of  temporary  vacancy. — An  officer 
on  the  active  list  of  the  Marine  Corps  can  not 
be  temporarily  detailed  to  fill  a  vacancy  created 
by  the  retirement  of  the  Commandant,  with 
authority  to  transact  official  business  and  sign 
orders  and  correspondence  as  "Acting  ("om- 
mandant,  U.  S.  Marine  Corps."  (28  Op.  Attv. 
Gen.,  486.) 

During  a  vacancy  caused  by  the  retirement  of 
a  Commandant  of  the  Marine  Corps,  the  orders 
and  correspondence  connected  with  his  office 
should  be  signed  by  the  Secretary  of  the  Navy 
or  by  the  Acting  Secretary  of  the  Na\'^%  in  per- 
son.    (28  Op.  Atty.  Gen.,  486.) 

For  other  cases,  see  notes  to  sections  177-182, 
Revised  Statutes. 

Commandant's  status  as  additional 
number. — Under  the  act  of  August  29,  1916, 

Sec.  1602.  [Staff  rank.     Superseded.] 

This  section  provided  as  follows: 

"Sec.  1602.  The  adjutant  and  inspector, 
the  pa>Tnaster,  and  the  quartermaster  shall 
have  the  rank  of  major;  [the]  [each]  assistant 
quartermaster  shall  have  the  rank  of  captain. ' ' — • 
(2  Mar.,  1847,  c.  40,  s.  3,  v.  9,  p.  154.  27  Feb., 
1877,  c.  69,  V.  19,  p.  244.) 

It  was  amended  by  act  of  February  27, 1877 
(Id  Stat.,  244),  which  substituted  the  word 
"each"  for  "the,"  as  indicated  in  the  above 
reproduction  of  this  section  as  it  appeared  in 
the  second  edition  of  the  Revised  Statutes. 

It  was  superseded  by  the  Navy  personnel 
act  of  March  3,  1899,  section  22  (.30  Stat.,  1009), 
which  provided,  in  part,  that  "the  staff  of  the 
Marine  Corps  shall  consist  of  one  adjutant  and 
inspector,  one  quartermaster  and  one  pay- 
master, each  with  the  rank  of  colonel;  one 
assistant  adjutant  and  inspector,  two  assistant 
quartermasters  and  one  assistant  paymaster, 
each  with  the  rank  of  major:  and  three  as- 
sistant quarteimasters  with  the  rank  of  captain. ' ' 


officers  of  the  Marine  Corps  carried  as  additional 
nimibers  in  grade  will,  if  promoted  to  the  grade 
of  brigadier  general,  immediately  become  reg- 
ular numbers  in  the  latter  grade,  and  will  con- 
tinue to  be  caiTied  as  regular  numbers  therein, 
unless,  by  operation  of  some  other  law  appli- 
cable to  a  specific  case,  the  status  of  such  an 
officer  should  revert  to  that  of  an  additional 
number  in  grade.  The  act  of  December  19, 
1913,  relating  to  the  Major  General  Comman- 
dant is  an  exception  to  the  general  provisions 
contained  in  the  act  of  August  29,  1916,  and  a 
Major  General  Commandant  whose  peiTtianent 
grade  is  that  of  colonel  would  continue  to  be 
an  additional  number  if  promoted  to  the  giade 
of  brigadier  general.  (File  28687-1,  Aug.  18, 
1916.) 

Rank  from  which  commandant  appoint- 
ed.— Should  a  vacancy  occur  in  the  position 
of  Major  General  Commandant,  the  President 
would  be  authorized  to  appoint  any  officer  of 
the  rank  of  colonel  or  brigadier  general  to  fill 
such  vacancy.  Such  officer  would,  by  virtue  of 
the  act  of  December  19,  1913,  immediately 
become  an  additional  number  in  his  grade. 
Should  the  number  of  officers  senior  to  colonel 
be  full,  the  President  would  not  thereby  be 
restricted  to  the  selection  of  a  brigadier  general 
to  fill  the  vacancy,  but  would  have  discretion 
to  appoint  a  colonel  whom  he  might  consider 
better  fitted  for  the  office.  The  act  of  August 
29,  1916,  deals  only  with  the  apportionment  of 
regular  number  officers,  and  allows  more  than 
the  authorized  percentage  of  officers  senior  to 
colonel,  when  such  a  result  is  made  necessary  by 
the  appointment  of  a  colonel  to  fill  a  vacancy 
in  the  position  of  Major  General  Commandant 
as  specifically  authorized  by  the  same  act,  not- 
withstanding the  provision  therein  that  *in 
determining  the  officers  with  rank  senior  to 
colonel  there  shall  be  included  the  officer  serv- 
ing as  major  general  commandant,"  which  has 
the  effect  of  making  the  Major  General  Comman- 
dant one  of  the  authorized  number  of  officers 
above  the  rank  of  colonel.  (File  28687-1, 
Aug.  18,  1916.) 


By  act  of  August  29,  1916  (39  Stat.» 
609),  it  was  provided  "that  the  officers  serving 
in  the  senior  grade  of  the  Adjutant  and  In- 
spector's, Quartermaster's,  and  Paymaster's 
Departments  shall,  while  serving  therein, 
have  the  rank,  pay,  and  allowances  of  a  brig- 
adier general:  And  provided  further,  That  for 
the  purpose  of  determining  the  numlDcr  of  offi- 
cers in  the  various  ranks  as  herein  provided 
[see  note  to  sec,  1596,  R.  S.j  such  staff  ofScers 
shall  be  counted  as  being  of  the  rank  of  Colonel : 
And  provided  further,  That  officers  holding 
permanent  appointments  in  the  staff  depart- 
ments shall  not  be  eligible  for  appointments 
to  the  gi'ade  of  brigadier  general  of  the  line  as 
hereinbefore  provided." 

See  note  to  section  1598,  Revised  Statutes, 
for  other  provisions  of  said  act  of  August  29, 
1916,  relating  to  the  rank  of  officers  from  whom 
appointments  shall  be  made  to  the  upper 
grades  of  the  staff  departments,  their  tenure 
of  office,  etc. 


929 


Sec.  1603. 


PI.  2.  REVISED  STATUTES. 


The  Navy. 


Sec.  1603.  [Relative  rank  with  the  Army.]  The  officers  of  the  Marine  Corps 
shall  be,  in  relation  to  rank,  on  the  same  footing  as  officers  of  similar  grades  in 

V.  4,  p.  713.) 


the  Army.— (30  June,  1834,  c.  132,  s,  4 


Army  and  Navy  oflicers;  relative  rank  of: 
See  section  i46(),  Revised  Statutes. 

Brigadier  generals  and   rear  admirals  of  the 
"lower  lialf;  relative  rank  of:  See  note  to 
section  146G,  Revised  Statutes. 

Command  when  different  corps  or  cojnmands 
happen  to  join  or  do  duty  together:  See 
note  to  section  1342,  Revised  Statutes, 
under  articles  119  ancl  120  of  the  Articles 
of  War,  and  note  to  section  1621,  Revised 
Statutes. 

Command  of  joint  forces  of  the  Army  and  Navy: 
See  note  to  section  14()(),  Revised  Statutes. 

Command  of  ^Q,\y  yards  or  \essels:  See  section 
1617,    Re'vised '  Statutes. 

In  the  absence  of  special  assigmnent  by  the 
President,  officers  of  the  same  gi'ade  shall 
rank  and  have  precedence  in  the  following 
order,  without  regard  to  date  of  rank  or 
commission  as  between  officers  of  different 
classes,  namely:  First,  officers  of  the  Reg- 
ular Army  and  oflicers  of  the  Marine 
Corps  detached  for  service  with  the  Army 
by  order  of  the  President;  second,  officers 
of  forces  drafted  into  the  military  ser\ice 
of  the  United  States.  (Joint  Res.  23, 
July  1,  1916,  sec.  4,  39  Stat.,  340.) 

"In  deternuning  relative  rank  and  increase  of 
pay  for  length  of  service  *  *  *  active  duty 
performed  while  under  appointment  from 
the  United  States  Government,  whether 
in  the  Regular,  provisional,  or  temporary 
forces,  shall  be  credited  to  the  same  extent 
as  8er\dce  under  a  Regular  Army  commis- 
sion." (Act  June  4,  1920,  sec.  51,  41  Stat., 
785,  amending  act  June  3,  1916,  sec.  127, 
39  Stat.,  217.) 

Precedence  between  officers  of  the  Marine 
Corps  and  line  officers  of  the  Navy,  and 
between  officers  of  the  Marine  Corps  and 
staff  officers  of  the  Navy:  See  note  to  sec- 
tion 1466,  Revised  Statutes. 

Precedence  of  Naval  Academy  graduates  com- 
missioned in  the  line  of  the  Navy  and  in 
the  Marine  Corps:  See  note  to  section  1483, 
Revised  Statutes. 

"Unless  special  assignment  is  made  by  the 
President  under  the  provisions  of  the  one 
hundred  and  nineteenth  article  of  war,  all 
officers  in  the  active  8er\ace  of  the  United 
States  in  any  grade  shall  take  rank  accord- 
ing to  date,  which,  in  the  case  of  an  officer 
of  the  Re.gular  Army,  is  that  stated  in  his 
conmiission  or  letter  of  appointment,  and, 
in  the  case  of  a  reserve  officer  or  an  officer 
of  the  National  Guard  called  into  the 
8er\'ice  of  the  United  States,  shall  precede 
that  on  which  he  is  placed  on  active  duty  by 
a  period  equal  to  the  total  length  of  active 
service  which  he  may  have  performed  in 
the  grade  in  which  called  or  any  higher 
grade.  ^Tien  dates  of  rank  are  the  same, 
precedence  shall  determined  by  length  of 
active  commissioned  service  in  the  Army. 
WTien  length  of  such  ser^'ice  is  the  same, 
officers  of  the  Regular  Army  shall  take 
rank  among  themselves  according  to  their 


places  on   the   promotion  list,   preceding 
reserve  and  National  Guard  officers  of  the 
same  date  of  rank  and  length  of  service, 
who   shall   take   rank  among   themselves 
according  to  age."     (Act  June  4,    1920, 
sec.  51,  41  Stat.,  785,  amending  act  June 
3,  1916,  sec.  127,  39  Stat.,  217.) 
"Senior  in  rank,"  construed. — An  officer 
in  one  branch  of  the  service  can  not  with  accu- 
racy be  called  senior  in  rank  to  an  officer  of  an- 
other branch.    A  major  in  the  Army  is  no  more 
senior  to  a  captain  of  marines  than  he  is  to  a 
captain  in  the  Navy.    The  term  in  its  military 
sense  is  applicable  only  to  relatively  higher 
grades  of  the  same  service.     Its  use  otherwise 
would  create  confusion.     (10  Op.  Atty.  Gen., 
116.    See  also  sec.  1623,  R.  S.) 

Oflicers  having  same  date  of  "appoint- 
ment."— Section  1219,  Revised  Statutes,  pro- 
vides that  "in  fixing  relative  rank  between  offi- 
cers of  the  same  grade  and  date  of  appointment 
and  commission,  the  time  each  may  have  actu- 
ally served  as  a  commissioned  officer  of  the 
United  States,  whether  continuously  or  at  dif- 
ferent periods,  shall  be  taken  into  account," 
etc.  Held,  that  the  word  "appointment"  as 
used  in  this  section  comprehends  only  the  ap- 
pointment of  an  officer  on  his  original  entry 
into  the  regular  ser\'ice,  and  does  not  include 
his  appointment  on  promotion  thereafter  made. 
(23  Op.  Atty.  Gen.,  155,  affirming  17  Op.  Atty. 
Gen.,  196,  and  17  Op.  Atty.  Gen.,  362.  See  also 
cases  noted  below,  and  note  to  sec.  1458,  R.  S.) 
Ofl3.cers  having  same  date  of  raiik. — -Un- 
der the  act  of  March  3,  1899  (30  Stat.,  1004),  re- 
organizing the  personnel  of  the  Navy  and  Ma- 
rine Corps,  Charles  H.  Lauchheimer,  a  captain 
of  the  line  in  the  Marine  Corps,  was  upon  the 
date  of  the  passage  of  that  act,  appointed  and 
commissioned,  by  selection,  as  adjutant  and 
inspector  with  the  rank  of  major,  and  on  March 
11  foUomng,  took  the  oath  of  office.  On  ^larch 
23,  1899,  Cliarles  H.  McCawley,  a  captain  and 
assistant  quartermaster  in  the  Marine  Corps, 
was  promoted  by  seniority  to  assistant  quarter- 
master with  the  rank  of  major,  to  date  from 
March  3,  and  took  the  oath  of  office  on  March  30. 
The  question  of  the  relative  rank  of  these  offi- 
cers being  presented  for  determination,  held: 
(1)  That  the  advancement  of  an  officer  to  a 
higher  grade,  one  to  which  he  could  not  then 
succeed  in  due  course  by  seniority,  while  called 
an  appointment,  is,  in  fact  and  effect,  a  promo- 
tion. Maj.  Lauchheimer's  advancement  should, 
therefore,  be  taken  as  a  promotion,  and  there 
is  nothing  in  this  regard  to  affect  the  relative 
rank  of  the  two  officers.  (2)  That  as  Maj. 
hauchheimer's  commission  and  induction  into 
office  each  antedate  by  several  days  that  of 
Maj.  McCawley 's,  during  that  period  the  former 
ranked  the  latter.  This  rank  was  not  lost  nor  a 
superior  one  conferred  by  the  subsequent  pro- 
motion of  Maj.  McCawley.  (3)  As  both  officers 
were  in  fact  promoted,  the  earlier  commission 
and  rank  of  Maj.  Lauchheimer  entitle  him  to 

Srecedence  in  rank.     (4)  The  Secretary  of  the 
avy,  by  virtue  of  his  general  power  under  the 


930 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1604. 


President  to  make  rules  and  regulations  for  the 
government  of  the  Navy,  may  determine  with 
the  force  and  effect  of  law  the  relative  rank  of 
officers  of  the  Marine  Corps.  Usually  this  is 
better  done  by  general  rules  than  by  decisions 
in  particular  cases,  but  it  may  be  done  either 
way.     (23  Op.  Atty.  Gen.,  155.) 

Section  1219,  Revised  Statutes,  has  no  appli- 
cation to  the  cases  of  Lauchheimer  and  McCaw- 
ley  ,exceptas  it  recognizes  the  general  rule  which 
has  regard  for  previous  service.  According  to 
the  preference  given  throughout  the  statutes 
and  by  the  rules  and  practice  of  the  War  and 
Navy  Departments  to  seniority  of  service,  the 
longer  service  of  Maj.  Lauchheimer  would,  other 
things  being  equal,  give  him  precedence  in 
rank.     (23  Op.  Atty.  Gen.,  1.55.) 

Precedence  not  disturbed  by  promo- 
tion.— Until  May  17, 1877,  Col.  Reid  outranked 
Col.  Goodloe  by  seniority  in  commission.  On 
that  date.  Col.  Goodloe  was  appointed  major  and 
paymaster,  and  subsequently,  on  May  2,  1894, 
Col.  Reid  was  appointed  major,  adjutant  and 
inspector.  Both  of  these  last-named  coimnis- 
sions  were  appointments  by  selection  at  the 
discretion  of  the  appointing  power,  and  were 
not  promotions  under  the  statutes  regulating 
such  promotions.  Therefore,  from  May  17, 
1877,  Col.  Goodloe  outranked  Col.  Reid  by 
seniority  of  commission,  and  on  IMarch  3,  1899, 
under  the  act  of  that  date  (30  Stat.,  1008),  both 
officers  were  promoted  to  the  rank  of  colonel. 
Held,  that  the  mere  promotion  of  the  two  officers 
does  not  disturb  their  preexisting  relative  rank; 
that  the  promotions  of  March  3,  1899,  were  not 
"appointments"  within  the  meaning  of  section 
1219,  Revised  Statutes;  and  that  therefore  Col. 
Goodloe  continues  to  outrank  Col.  Reid. 
(24  Op.  Atty.  Gen.,  74,  affirming  17  Op.  Atty. 
Gen.,  196  and  362;  see  note  above,  under  "Offi- 
cers ha\'ing  same  date  of  appointment.'') 

Ofl&cers  of  Marine  Corps  and  officers  of 
Navy. — -By  an  unwritten  law  of  the  Army  and 
Navy,  officers  of  the  Army  and  officers  of  the 
Navy  take  relative  rank  as  respects  the  two 
classes  according  to  their  respective  grades; 
and  if  of  similar  grade,  then  according  to  dates 
of  commission.  Officers  of  the  Marine  Corps, 
who  are  in  relation  to  rank  on  the  same  footing 
as  officers  of  similar  grades  in  the  Army,  take 
rank  and  precedence  relatively  to  line  officers 
in  the  Navy  according  to  grade ;  and  if  of  similar 
grade,  then  according  to  dates  of  commission. 
(25  Op.  Atty.  Gen.,  517.) 

There  is  no  law  making  any  distinction  as  to 
relative  rank  and  precedence  between  the  offi- 
cers of  the  Marine  Corps  who  are  and  those  who 
are  not  graduates  of  the  Naval  Academy,  either 
as  respects  themselves  or  officers  of  the  line  of 
the  Navy.  (25  Op.  Atty.  Gen.,  517;  see  also 
sec.  1483,  R.  S.,  and  note  thereto.) 

There  is  no  statutory  pro\dsion  expressly 
regulating  the  relative  rank  and  precedence  of 
officers  of  the  Marine  Corps  and  officers  of  the 
several  staff  corps  of  the  Navy;  but  there  are 


pro\'isions  which,  with  the  long  established 
and  settled  usage  and  practice  of  the  Army 
and  Navy,  regulate  it  with  the  same  certainty 
as  if  by  enactment  in  terms.  (26  Op.  Atty. 
Gen.,  16.) 

Whatever  will  be  the  relative  rank  and  its 
resulting  precedence  of  an  officer  of  the  Army 
to  either  line  or  staff  officers  of  the  Navy,  that 
would  also  be  the  relative  rank  as  to  them  of 
officers  of  the  Marine  Corps.  (26  Op.  Atty. 
Gen.,  16.) 

The  Secertary  of  the  Navy  is  without  au- 
thority to  make  such  a  change  in  article  23  of  the 
Navy  Regulations,  1909,  as  to  fix  the  relative 
rank  of  officers  of  the  Marine  Corps  with  officers 
of  the  Navy  according  to  length  of  service, 
rather  than  by  date  of  commission.  (29  Op. 
Atty.  Gen.,  264.) 

Officers  of  Army,  Navy,  and  Marine 
Corps. — -Paragraph  3  of  article  25  of  the  Navy 
Regulations,  1909,  may  be  amended  in  form  so 
as  to  read:  "When  officers  of  the  Army  are 
associated  jointly  with  officers  of  the  Nav^y  or 
Marine  Corps,  their  corresponding  rank  shall 
be  determined  according  to  the  dates  of  their 
respective  commissions,  when  of  the  same  or 
coiTesponding  gi-ades;  and  when  of  different 
rank,  as  set  forth  in  the  first  paragi'aph  of  this 
article."  (29  Op.  Atty.  Gen.,  264.  Compare 
sees.  1485  and  1486,  R.  S.,  and  notes  thereto, 
as  to  precedence  of  line  and  staff  officers  of  the 
Navy  according  to  length  of  service.) 

Officers  of  "Marine  Corps. — The  relation 
as  to  rank  which  officers  of  the  Marine  Corps 
hold  to  other  officers  is  prescribed  by  section 
1603,  Revised  Statutes,  and  could  not  be 
changed  by  any  act  of  the  President.  What- 
ever relation  as  to  rank  one  Army  officer  may 
hold  as  to  another  officer,  that  is  the  relation 
which  an  officer  of  the  Marine  Corps  of  similar 
gi-ade  holds.  Accordingly,  the  Navy  De- 
partment would  not  have  the  authority,  with 
the  approval  of  the  President,  to  amend  the 
Navy  Regulations  so  as  to  do  away  with  the 
practice  as  to  relative  rank  of  officers  of  the 
Marine  Corps  and  line  officers  of  the  Navy, 
established  in  accordance  with  25  Op.  Atty. 
Gen.,  517.     (26  Op.  Atty.  Gen.,  16.) 

Date  of  rank  on  promotion. — Officers  of 
the  Marine  Corps  on  promotion  should  ordi- 
narily be  given  rank  from  the  date  of  the 
vacancy  to  which  promoted;  in  no  case,  how- 
ever, will  an  officer  permanently  or  tempo- 
rarily promoted  be  given  rank  fi'om  a  date 
earlier  than  his  date  of  rank  in  the  lower  grade. 
Vacancies  resulting  from  the  President's 
order  of  March  26,  1917,  increasing  the  au- 
thorized number  of  enlisted  men  in  the  Marine 
Corps,  were  created  on  the  date  of  said  order, 
and  vacancies  resulting  from  the  temporary 
increase  in  the  number  of  enlisted  men  au- 
thorized by  the  act  of  May  22,  1917,  were  cre- 
ated on  the  date  of  the  act.  (File  28687-5:1, 
Sept.  7,  1917.) 


Sec.  1604.  [Brevets.]  Commissions  by  brevet  may  be  conferred  upon 
commissioned  officers  of  the  Marine  Corps  in  the  same  cases,  upon  the  same 
conditions,  and  in  the  same  manner  as  are  or  may  be  provided  by  law  for 
officers  of  the  Army.— (6  July,  1812,  c.  137,  s.  4,  v.  2,  p.  785.     16  April,  1814,  c. 


931 


Sec.  1604. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


58,  s.  3,  V.  3,  p.  124.  16  April,  1818,  c.  64,  s.  2,  v.  3,  p.  427.  30  June,  1834,  c. 
132,  s.  9,  V.  4,  p.  713.  1  Mar.,  1869,  c.  52,  s.  2,  v.  15,  p.  281.  3  Mar.,  1869, 
c.  124,  s.  7,  V.  15,  p.  318.     15  July,  1870,  c.  294,  s.  16,  v.  16,  p.  319.) 


Brevet  commissions  may  be  conferred  by  the 
President,  by  and  \\'ith  the  advice  and  con- 
sent of  tlie"  Senate,    upon   commissioned 
officers  of  the  Army,  in  time  of  war,  for 
distinguished  conduct  and  public  ser\-ice 
in    presence   of  the  enemy.     (Sec.    1209, 
U.S.) 
Bre%et  commissions  shall  bear  date  from  the 
particular  action  or  service  for  which  the 
oflicers  were  brevetted.     (Sec.  1210,  11.  S.  i 
Brevet  rank  shall  be  considered  strictly  hon- 
orary,   and   shall    confer   no   pri\alege   of 
precedence  or  command  not  already  pro- 
vided for  in  the  statutes  which  embody  the 
rules  and  articles  go\eming  the  Army  of 
the  United  States.     (Act  Feb.  27,   1890, 
section  3,  26  Stat.,  14.) 
No  officer  shall  he  entitled  on  account  of  having 
been  brevetted  to  wear  wliile  on  duty  any 
uniform  other  than  that  of  his  actual  rank; 
and  no  officer  shall  he  addressed  in  orders 
or  official   communications  Ijy  any  title 
other  than  that  of  his  actual  rank.     (Sec. 
1212,11.  S.) 
Officers  may  be  assigned  to  duty  or  command 
according  to  their  brevet  rank,  by  special 
assignment  of  the  President;  and  brevet 
rank  shall  not  entitle  an  officer  to  preced- 
ence   or    command   except   when    so    as- 
signed.    (Sec.  1211,  R.  S.) 
Officers  of  the  Army  shall  only  be  assigned  to 
dut  y  or  command  according  to  their  brevet 
rank  when  actually  engaged  in  hostilities. 
(Act  Mar.  3,  1883,  22  Stat.,  4.57.  i 
Rank  of  brevet  major  abolished. — ■'  'There 
is  no  act  of  Congi-ess  now  in  force  [Apr.  22,  1820] 
which  recognizes  any  such  office  as  that  of 
brevet  major  of  marines;"  the  President  can 
not  confer  that  rank  under  the  act  of  April  16, 
1814.     (1  Op.  Atty.  Gen.,  3.52.) 

The  act  of  March  3,  1817,  fixing  the  peace 
establishment  of  the  ^larine  Corps,  not  having 
retained  any  majors  in  serxice,  the  brevets 
theretofore  conferred  were  thereby  made  to 
cease  with  the  termination  of  the  lineal  rank 
of  majors  by  commission.  (1  Op.  Atty.  Gen., 
489.) 

'  'The  act  of  1814  was  predicated  on  a  state  of 
things  which  no  longer  exists.  We  were  then  at 
war,  and  the  commissioned  rank  of  major  then 
existed;  the  design  of  that  act  was  to  augment 
that  corps,  and  to  stimulate  it  to  deeds  of  arms. 
We  are  now  at  peace;  the  corps  has  been  re- 
duced and  adapted  to  the  state  of  peace;  the 
grade  of  major  exists  no  longer,  even  though 
it  had  been  conferred  by  commLssion,  much 
less  when  conferred  by  brevet;  and  ^v■ith  the 
grade  falls  the  claim  to  pay.  There  is  no 
breach  of  contract  in  this."  (1  Op.  Atty.  Gen., 
489,  490. ) 

Captains  brevetted  as  Ueutenant 
colonels. — Congress  having,  by  the  act  of 
April  16,  1814,  authorized  the  President  to 
confer  brevet  rank,  and  having,  by  the  act  of 
March  3,  1817,  fixing  the  peace  establishment 
of  the  Marine  Corps,  abolished  the  rank  of 


major,  held  that  the  President  is  authorized  to 
issue  to  a  captain  of  the  Marine  Corps  the 
brevet  rank  of  lieutenant  colonel.  This  ■v^'ill 
not  operate  to  give  the  officer  an  advance  of 
two  steps  instead  of  one.  In  the  present 
organization  of  the  Marine  Corps  there  is  but 
one  step  from  the  post  of  captain  to  that  of 
lieutenant  colonel,  the  former  intermediate 
step  of  major  haA-ing  been  abolished.  (1  Op. 
Atty.  Gen.,  578.) 

Questions  of  duty  and  command  are 
military  questions. — Under  the  law  al- 
lo\ving  officers  of  the  Marine  Corps  their  brevet 
pay  and  emoluments  when  on  duty  ha\ing  a 
command  according  to  their  brevet  rank,  the 
question  when  and  under  what  circiimstances 
an  officer  is  properly  to  be  regarded  as  "on 
duty,  and  ha\dng  a  command  according  to  his 
brevet  rank,"  is  a  military  question,  strictly 
and  technically  a  military  question,  properly 
determinable  by  the  Department  of  the  Navy 
or  of  War  as  it  may  arise  in  one  or  the  other. 
Congress  not  having  defined  what  shall  con- 
stitute the  fact  of  ' '  having  a  command  accord- 
ing to  brevet  rank,"  has  left  it  as  a  military 
fact  or  question  to  be  settled  by  the  military 
authorities  of  the  Government.  (5  Op.  Atty. 
Gen.,  513.) 

Laws  on  military  subjects  seldom  fall  -ndthin 
the  sphere  of  a  lawyer's  practice  or  considera- 
tion, and  he  is  consequently  ^vithout  that  key 
of  experience  in  the  subject  matter  which  is 
so  essential  to  their  just  construction.  The 
origin  and  nature  of  brevet  rank — for  example, 
the  cases  in  which  it  is  conferred,  and  the 
effects  which  it  produces — are  purely  ques- 
tions of  military  experience,  Avith  regard  to 
which  we  have  no  wiitten  laws;  and  all  ques- 
tions in  relation  to  that  rank  must  be,  of  neces- 
sity, beyond  the  province  of  the  mere  jurist. 
Accordingly,  suggested  that  the  President 
would  be  much  more  safe  in  resting  on  the 
opinion  of  military  men  upon  such  a  question 
than  upon  that  of  the  Attorney  General. 
(1  Op.   Atty.   Gen.,   578,   579.) 

Brevet  pay  and  emoliiments. — Brevet 
majors  of  the  Marine  Corps  are  entitled  to  the 
same  pay  and  emoluments  which  are  allowed 
to  officers  of  similar  grades  in  the  infantry  of 
the  Army.     (5  Op.  Atty.  Gen.,  513.) 

WTiatever  may  have  been  a  different  prac- 
tice, brevet  officers  of  the  Marine  Corps  have 
always  been  by  law  upon  the  same  footing  with 
other  officers  of  the  military  establishment  of 
the  United  States  in  respect  to  the  circum- 
stances which  entitle  them  to  pay  and  emolu- 
ments.    (U.  S.  V.  Freeman,  3  How.,  556.) 

Brevet  pay  and  emoluments  were  given  to 
officers  of  the  Array  by  an  act  of  July  6,  1812, 
section  4,  and  to  the  Marine  Corps  by  act  of 
April  16,  1814,  section  3,  which  was  substan- 
tially identical  with  the  Army  act.  By  act  of 
April  16,  1818,  it  was  provided  that  "the 
officers  of  the  Army  who  have  brevet  com- 
missions shall  be  entitled  to,  and  receive,  the 
pay    and    emoluments   of   their   brevet   rank 


932 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1607. 


when  on  duty  and  having  a  command  accord- 
ing to  their  brevet  rank,  and  at  no  other  time. " 
Held,  that  said  act  of  1818,  although  in  terms 
applicable  only  to  officers  of  the  Army,  oper- 
ated to  repeal  the  enactment  of  1814  providing 
brevet  pay  for  the  Marine  Corps  as  well  as  that 
of  1812  relating  to  brevet  pay  in  the  Army. 
(U.  S.  T.  Freeman,  3  How.,  556.) 

It  can  not  be  denied  that  the  Marine  Corps 
is  an  addition  to  the  military  establishment  of 
the  United  States.  It  is  declared  to  be  so  in 
the  act  by  which  it  was  organized.  Though 
neither  that  fact  nor  the  words  "military 
establishment"  as  they  are  used  in  the  acts  of 
Congress  will  of  themselves  authorize  the 
inclusion  of  officers  of  the  Marine  Corps  within 
the  words  "officers  of  the  Army, "  nevertheless, 
considering  the  subject  matter  of  the  act  of 
1818,  the  application  of  the  second  section  of 
that  act  to  all  brevetted  officers,  and  the  as- 
similation of  the  Marine  Corps  by  the  act  of 
1814  to  the  Army,  giving  to  its  officers  brevet 
commissions  and  pay  in  exactly  the  same  way 
as  they  were  given  to  the  officers  of  the  Army 
by  the  act  of  1812,  held  that  Congress  intended 
by  the  act  of  1818  to  place  the  officers  of  the 
Marine  Corps  and  the  officers  of  the  Army  upon 
the  same  footing  in  respect  to  brevet  pay  and 
emoluments.  (U.  S.  v.  Freeman,  3  How., 
556.) 

The  words,  "officers  of  the  Army,"  in  the 
act  of  1818,  though  descriptive  of  a  particular 

Sec.  1605.  [Advancement  in  number.]  Any  officer  of  the  Marine  Corps 
may,  by  and  with  the  advice  and  consent  of  the  Senate,  be  advanced  not 
exceeding  tliirty  numbers  in  rank,  for  eminent  and  conspicuous  conduct  in 
battle  or  extraordinary  heroism. —  (21  Apr.,  1864,  c.  63,  s.  6,  v.  13,  p.  54.  24  Jan., 
1865,  c.  19,  s.  1,  V.  13,  p.  424.) 


class,  were  intended,  as  shown  by  their  con- 
nection with  the  subject  matter  of  the  act,  to 
comprehend  all  officers  of  the  military  estab- 
lishment of  the  United  States  who,  when  the 
act  was  passed,  were  only  under  like  circum- 
stances entitled  to  brevet  pay  and  emoluments. 
(U.  S.  V.  Freeman,  3  How.,  556.) 

T\'Tiere  a  captain  in  the  Marine  Corps  acts  as 
brevet  lieutenant  colonel,  and  is  paid  as  such, 
he  can  not,  duiing  the  same  period,  receive 
either  the  pay  or  allowances  attached  to  the 
duties  of  captain.  (U.  S.  v.  Freeman,  25  Fed. 
Cas.  No.   15163.) 

Brevet  officers  of  the  Marine  Corps  were 
included  under  the  Army  Regulations  of 
March  1,  1825,  and  also  in  the  regulation  upon 
the  subject  of  brevet  pay  sanctioned  by  the 
President  December  1,  1836,  and  could  claim 
brevet  pay  and  emoluments  under  the  Army 
Regulations  of  1841 .  This  right  to  brevet  pay 
results  from  the  Marine  Corps  having  been 
subjected  by  the  act  of  1798  and  by  other  acts  of 
Congress  to  the  same  rules  and  articles  of  war 
"as  are  prescribed  for  the  military  establish- 
ment of  the  United  States,"  and  from  the 
exception  in  section  2  of  the  act  of  June  30, 
1834,  taking  them  out  of  the  regulations  which 
might  be  established  for  the  Navy,  when 
detached  for  service  with  the  Army  by  order 
of  the  President  of  the  United  States.  (U.  S. 
V.  Freeman,  3  How.,  556.) 


carried  as  an  additional  number  in  the 
grade  or  with  the  rank  of  colonel  shall  be 
held  to  fill  a  vacancy  in  the  grade  of  briga- 
dier general. 

See  note  to  section  1597,  Revised  Statutes;  and 
see,  generally,  note  to  section  1506,  Re- 
vised Statutes. 

See  notes  to  section  1407,  Revised  Statutes,  as 
to  medals  of  honor,  etc. 


By  sections  1506-1508,  Revised  Statutes,  pro- 
vision is  made  for  the  Navy  similar  to  sec- 
tions 1605-1607,  relating  to  the  Marine 
Corps;  bv  acts  of  March  3,  1901  (31  Stat., 
1108),  and  June  16,  1906  (34  Stat.,  296), 
officers  so  advanced  are  to  be  carried  as 
additional  to  the  numbers  of  each  grade  in 
which  they  serve;  by  act  of  August  29, 
1916  (39  Stat.,  608),  the  promotion  to  the 
grade  of  brigadier  general  of  any  officer 

Sec.  1606.  [Promotion  when  grade  is  full.]  Ajiy  officer  who  is  nominated 
to  a  higher  grade  by  the  provisions  of  the  preceding  section  shall  be  promoted, 
notwithstanding  the  number  of  said  grade  may  be  full,  but  no  further  promo- 
tion shall  take  place  in  that  grade,  except  for  like  cause,  until  the  number  is 
reduced  to  that  provided  by  law. —  (24  Jan.,  1865,  c.  19,  s.  2,  v.  13,  p.  424.) 

See  section  1605,  Revised  Statutes,  and  references  thereunder. 

Sec.  1607.  [Promotion  for  gallantry.]  Any  officer  of  the  IVIarine  Corps 
may,  by  and  with  the  advice  and  consent  of  the  Senate,  be  advanced  one  grade, 
if,  upon  recommendation  of  the  President  by  name,  he  receives  the  thanks  of 
Congress  for  highly  distinguished  conduct  in  conflict  vnih.  the  enemy,  or  for 
extraordinary  heroism  in  the  line  of  his  profession. —  (16  July,  1862,  c.  183,  s. 
9,  V.  12,  p.  584.     24  Jan.,  1865,  c.  19,  s.  2,  v.  13,  p.  424.) 

See  section  1605,  Revised  Statutes,  and  references  thereunder. 

933 


Sec.  1608. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Sec.  1608.  [Enlistment.     Superseded.] 

This  section  provided  as  follows: 

"Sec.  IGOS.  EnlistinentdintotheMarineCorps 
shall  be  for  a  period  not  less  tlian  five  years. "^ 
(11  July,  1870,  Ho3.  106,  v.  10,  p.  387.) 

It  was  superseded  by  act  of  March  3,  1901 
(31  Stat.,  1132),  which  provided  "that  here- 
after the  enlistments  into  the  Marine  Corps 
shall  be  for  a  period  of  not  less  than  four  years." 

By  act  of  June  4,  1920,  section  7  (41  Stat., 
836 1,  it  is  pro\ided  that  hereafter  enlistments 
in  the  Navy  or  Marine  Corps  may  be  for  terms 
of  two,  three,  or  four  years,  and  all  laws  now 
applicable  to  four  years  enlistments  shall 
apply,  under  such  regulations  as  may  be 
prescribed  by  the  Secretary  of  the  Navy  to 
enlistments  for  a  shorter  period,  with  proportion- 
ate benefits  upon  discharge  and  reenlistment. 

Absence  to  be  made  good. — By  act  of 
August  29,  1916  (39  Stat.,  580),  as  amended 
by  act  of  July  1,  1918  (40  Stat.,  717),  it  was 
provided  that  no  enlistment  in  the  Navy  or 
Marine  Corps  shall  be  regarded  as  complete 
until  the  enlisted  man  has  made  good  all  time 
lost  on  account  of  injury,  sickness,  or  disease 
resulting  from  his  own  misconduct.  (See  note 
to  sec.  1624  R.  S..  art.  8.) 

Detention  after  expiration  of  enlist- 
ment.— See  note  to  section  1422,  Revised 
Statutes. 

Transfers  from  the  Hospital  Corps  to 
the  Marine  Corps,  and  transfers  of  the  marines 
to  the  Hospital  Corps,  are  authorized  by  act 
of  August  29,  1916  (39  Stat.,  572).  See  note  to 
section  1421,  Rex'ised  Statutes. 

Transfers  from  Army  to  Marine  Corps. — 
See  section  1421,  Revised  Statutes. 

Minority  enlistments  in  the  Marine 
Corps  are  governed  by  section  1418,  Revised 
Statutes,  relating  to  the  Navy.  (See  note  to 
that  section,  under  "Minority  enlistments 
in  Marine  Corps  governed  by  Navy  laws," 
and  note  to  sec.  761,  R.  S.,  uncier  "Disposition 
of  party  claiming  discharge  from  Marine  Corps 
on  ground  of  fi-audulent  enlistment.") 

Qualifications  for  enlistment  in  the  Navy 
are  prescribed  by  sections  1418-1420,  Re\ised 
Statutes,  which  apply  to  the  Marine  Corps,  ex- 
cept as  otherwise  specifically  provided.  (See 
notes  to  said  sections.") 

Extension  of  enhstments  in  the  Marine 
Corps. — See  note  to  section  1418,  Re\'ised 
Statutes.  See  also  act  of  April  25,  1917  (40 
Stat.,  38),  expressly  authorizing  extension  of 
minority  enlistments  in  the  Marine  Corps. 

Naturalization  of  aliens  serving  in  the 
Marine  Corps  is  provided  for  by  act  of  May 
9,  1918  (40  Stat.,  542).  Naturalization  of 
aliens  serving  in  the  Marine  Corps  Reserve  is 
authorized  by  act  of  Mar  22,  1917  (40  Stat.,  84), 
made  applicable  to  the  Marine  Corps  Reserve 
by  act  of  August  29,  1916  (39  Stat.,  593). 

As  to  enlistment  of  aliens  in  the  Marine  Corps, 
see  note  to  section  1420,  Revised  Statutes,  under 
"Aliens  not  to  be  enlisted." 

For  decisions  relating  to  enhstments 
in  the  Navy  and  Marine  Corps,  see  generally 
notes  to  sections  1418-1422,  Revised  Statutes. 

Advertising  for  recruits. — By  act  of 
July  1,  1918  (40  Stat.,  736),  under  "Trans- 
portation and  recruiting,   Marine  Corps,"   it 


was  provided  "that  hereafter  authority  is 
hereby  granted  to  employ  the  services  of 
adv'ertising  agencies  in  advertising  for  recruits 
under  such  terms  and  conditions  as  are  most 
advantageous  to  the  Government." 

Enlistment  of  women. — By  act  of  Julv 
11,  1919  (41  Stat.,  152),  it  was  provided  "that 
the  words  'enlisted  men,'  as  contained  in  prior 
appropriation  Acts,  shall  not  be  construed  to 
deprive  women,  enlisted  or  enrolled  in  the 
naval  service,  of  the  pay,  allowances,  gratui- 
ties, and  other  benefits  gi-anted  by  law  to  the 
enlisted  personnel  of  the  Navy  and  Marine 
Corps." 

Status  of  appHcants  for  enhstment. — 
See  note  to  section  1418,  Revised  Statutes, 
under  "\\Tien  enlistment  complete";  see  also 
note  to  section  1609,  Revised  Statutes. 

Discharge  prior  to  expiration  of  enhst- 
ment.—The  act  of  March  3,  1809,  directed 
enlistments  in  the  Marine  Corps  to  be  for  five 
years,  unless  sooner  discharged;  but  did  not 
provide  by  whom  such  discharges  should  be 
granted.  Held,  that  the  commandant  of  the 
Marine  Corps  can  not  legally  grant  discharges 
to  marines  before  the  expiration  of  their  term 
of  enlistment;  but  that  such  discharges  can 
only  be  granted  by  the  President  of  the  United 
States  or  in  conformity  to  such  regulations  as 
he  may  think  proper  to  prescribe.  (2  Op. 
Atty.  Gen.,  353.) 

The  authority  to  rescind  a  contract  between 
the  United  States  and  the  individual,  which 
is  the  effect  of  a  discharge  from  the  Marine 
Corps  prior  to  expiration  of  enlistment,  is  a 
power  which  can  exist  only  by  viiiue  of  an 
•express  grant.  Under  the  Army  law  (held 
applicable  in  this  case  to  the  Marine  Corps) 
the  major  general  commanding  the  Army  of 
the  United  States  can  not  grant  a  discharge; 
accordingly  held  that  it  is  not  competent  for  the 
commandant  of  the  Marine  Corps  to  gi-ant 
discharges  to  marines  before  the  expiration  of 
their  enlistment,  and  that,  until  Congress  shall 
othervnse  provide,  such  discharges  can  only 
be  granted  by  the  President  or  in  conformity 
to  such  regulations  as  he  may  think  proper  to 
prescribe.     (2  Op.  Atty.  Gen.,  353.) 

A  private  in  the  Marine  Corps  of  the  United 
States,  discharged  from  the  service  as  a  person 
of  bad  character  and  unfit  for  service,  by  order 
of  the  Secretary  of  the  Navy  thi'ough  the  com- 
mandant of  the  cor]:>s,  without  court-martial  or 
other  competent  military  proceeding,  forfeits 
thereby  his  retained  pay  under  the  provisions 
of  section  1281,  Revised  Statutes;  but  he  may 
claim  and  recover  his  transportation  and  sub- 
sistence from  the  place  of  his  discharge  to  the 
place  of  his  enlistment,  enrollment,  or  original 
muster  into  the  service,  under  the  provisions 
of  section  1290,  Revised  Statutes.  (U.  S.  v. 
Kingsley,  138 U.S.,  87, reversing 24  Ct.  Cls.,  219.) 

A  discharge  issued  for  unfitness  for  service 
and  general  bad  character,  without  trial  by 
court-martial,  can  not  be  considered  as  "a 
punishment  for  an  offense"  within  the  mean- 
ing of  section  1290,  Revised  Statutes;  the 
question  whether  such  punishment  must  neces- 
sarily be  awarded  by  the  judgment  of  a  court- 
martial,   not  presented  in   this  case  and  no 


934 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1610. 


opinion  expressed  on  it.  (U.  S.  v.  Kingsley, 
138U.  S.,87.) 

By  his  enlistment  the  soldier  contracts  for 
honest  and  faithful  service,  and  the  rendition 
of  such  ser\dce  is  a  condition  precedent  to  his 
right  to  recover  his  retained  pay.  The  fact 
that  he  has  not  rendered  such  service  may  be 
shown  as  well  by  his  military  record  as  by  the 
judgment  of  a  coiu-t-martial.  (U.  S.  v.  Kings- 
ley,  138  U.  S.,  87,  reversing  24  Ct.  Cls.,  219.) 

"Reenlistment"  construed. — An  enlist- 
ment in  the  Marine  Corps  after  an  honorable 
discharge  from  the  Army  or  Navy  is  not  a 


"reenlistment"  within  the  meaning  of  section 
7  of  the  act  of  June  4,  1920  (41  Stat.,  836).  The 
term  "reenlistment"  as  therein  used  signifies 
an  entry  into  the  same  branch  of  the  service 
from  which  honorably  discharged.  (27  Comp. 
Dec,  170.) 

A  soldier  honorably  discharged  from  the 
Army  who  enlists  in  the  Marine  Corps  is  en- 
titled, under  section  1612,  Revised  Statutes, 
to  the  same  additional  pay  that  he  would  be 
entitled  to  if  his  reenlistment  had  been  in  the 
Army.  (Walton  v.  U.  S.,  31  Ct.  Cls.,  196,  con- 
struing sec.  1284,  R.  S.) 


Sec.  1609.  [Oath.]  The  officers  and  enlisted  men  of  the  Marine  Corps  shall 
take  the  same  oaths,  respectively,  which  are  provided  by  law  for  the  officers 
and  enlisted  men  of  the  Army. —  (11  July,  1798,  c.  72,  s.  4,  v.  1,  p.  595.) 


By  act  of  March  3,  1899,  section  25 -(30  Stat., 
1009),  it  was  provided  that  "the  oath  of 
allegiance  now  provided  for  the  officers 
and  men  of  the  Army  and  Marine  Corps 
shall  be  achninistered  hereafter  to  the 
officers  and  men  of  the  Navy." 

The  oath  of  allegiance  provided  by  the  Revised 
Statutes  for  enlisted  men  of  the  Army  was 
contained  in  section  1342,  Revised  Stat- 
utes, article  2,  quoted  under  section  1418, 
Revised  Statutes. 

The  oath  of  allegiance  now  provided  by  law  for 
enlisted  men  of  the  Army  is  contained  in 
article  109  of  the  Articles  of  War,  as  em- 
bodied in  act  of  June  4,  1920  (41  Stat., 
809),  as  follows:  "At  the  time  of  his  en- 
listment every  soldier  shall  take  the  follow- 
ing oath  or  affirmation :  '  I ,  ,  do  sol- 
emnly swear  (or  affirm)  that  I  will  bear 
true  faith  and  allegiance  to  the  United 
States  of  America;  that  I  will  serve  them 
honestly  and  faithfully  against  all  their 
enemies  whomsoever;  and  that  I  will  obey 
the  orders  of  the  President  of  the  United 
States  and  the  orders  of  the  officers  ap- 
pointed over  me,  according  to  the  Rules 
and  Articles  of  War.'  This  oath  or  affirma- 
tion may  be  taken  before  any  officer." 

The  oath  of  office  prescribed  for  persons  in  the 
military  service  is  set  forth  in  Revised 
Statutes,  section  1757,  as  amended  by  act 
of  May  13,  1884,  section  2  (23  Stat.,  22). 

The  oath  of  office  to  be  taken  by  enlisted  men 
of  the  Navy  and  Marine  (Jorps  designated 
as  Navy  mail  clerks  or  assistant  Navy  mail 
clerks  is  that  prescribed  for  employees  of 
the  Postal  Service.  (See  sees.  391  and 
392,  R.  S.,  and  note  thereto,  for  form  of 
this  oath.) 


Men  drafted  into  service.— The  Articles 
of  War,  requiring  every  soldier  at  the  time  of 
his  enlistment  to  take  an  oath  of  allegiance, 
apply  only  to  voluntary  enlistment;  and  one 
certified  into  the  military  service  under  the 
selective  draft  act  of  May  18,  1917  (40  Stat., 
76),  can  not  escape  Liability  to  military  ser^'ice 
because  he  had  not  taken  the  reqvured  oath. 
(Franke  v.  Murray,  248  Fed.  Rep.,  865.)  _ 

Applicants  for  enlistment. — ^Applicants 
for  enlistment  who  have  been  accepted  pro- 
visionally, but  have  yet  to  be  subjected  to  the 
first  examination  at  the  recruiting  depots  and 
to  take  the  oath  before  they  become  a  part  of 
the  soldiery  of  the  Nation,  are  not  "troops  of 
the  United  States"  (as  used  in  the  land-grant 
acts  in  relation  to  transportation  for  the  Gov- 
ernment). It  is  the  actual  enlistment,  the 
oath  of  allegiance,  that  changes  the  status  from 
a  civilian  to  a  soldier.  The  officers  at  the  re- 
cruiting stations  are  expressly  forbidden  by 
Army  Regulations  to  administer  this  oath. 
Such  applicant  is  then  not  even  a  potential 
soldier;  for  he  may  be  rejected  on  final  examina- 
tion. And  it  is  the  actual  and  not  the  potential 
status  that  must  govern.  The  fact  that  under 
the  Army  Regulations  he  receives  the  same 
rations  as  an  enlisted  man,  and  that  he  is  sub- 
ject to  the  same  medical  attention,  does  not 
effect  a  change  of  status.  And  the  fact  that 
the  transportation  is  for  the  purposes  of  the 
Government  in  connection  with  its  military 
establishment  is  immaterial.  The  Army  ap- 
propriation acts  make  specific  provision  for 
the  transportation  of  "troops"  and  of  "re- 
cruits." (U.  S,  V.  Union  Pac.  R.  Co.,  249 
U.  S.,  354,  359,  affinning  52  Ct.  Cls.,  226.) 

For  other  cases,  see  note  to  section  1418, 
Revised  Statutes,  under  "When  enlistment 
complete." 


Sec.  1610.  [Exemption  from  arrest.]  Marines  shall  be  exempt,  while 
enlisted  in  said  service,  from  all  personal  arrest  for  debt  or  contract. —  (11  July, 
1798,  c.  72,  s.  5,  v.  1,  pp.  595,  596.     30  June,  1834,  c.  132,  s.  3,  v.  4,  p.  713.) 


As  to  privilege  from  arrest  in  civil  cases,  see 
note  to  Constitution,  Article  I,  section  6, 
clause  1. 

As  to  jurisdiction  of  civil  authorities  over 
persons  in  the  military  service,  see  notes 
to  Constitution,  Article  I,  section  8,  clauses 


11,  13,  and  14;  and  notes  to  sections  355, 
417,  and  753,  Revised  Statutes. 
Officers  of  the  Navy  or  Marine  Corps,  finally 
sentenced  by  civil  authorities  to  imprison- 
ment in  State  or  Federal  penitentiary,  may 
be  dropped  from  the  rolls  of  the  Navy  or 


936 


Sec.  1612. 


l>t.  J.  REVISED  STATUTES. 


The  Navy. 


Marino  Corps,  and  shall  1)0  inoligiblo  for  oxenipt  from  arrest.     If  public  policy  requires 

reappointment.     (Act    Apr.    2,    1918,    40  the  extension  of  this  privilege  to  these  ofiicers, 

Stat.,  501.)  it  is  not  to  be  doubted  that  Congress  will  so 

Exemption    limited    to    rnarines. — The  direct  in  explicit  tenns  whenever  their  atten- 

proper  construction  of  the  act  of  July  11,  1798,  tion  may  be  called  to  it.     (3  Op.  Atty.  Gen., 

section  5,  relating  to  the  Marine  Corps,  fails  to  119.) 

include  mitl>hiiunen,  who  are,  therefore,  not 

Sec.  1611.  [Companies  and  detachments.]  The  Marine  Corps  may  be 
formed  into  as  many  companies  or  detachments  as  the  President  may  direct, 
with  a  proper  distribution  of  the  commissioned  and  non-conomissioned  officers 
and  musicians  to  each  company  or  detachment. —  (11  July,  1798,  c.  72,  s.  1, 
V.  1,  p.  594.) 


By  act  of  August  29,  1916  (39  Stat.,  586),  it  was 

pro^■ided  that  summary  courts-martial  may 

be  ordered  by  the  conunanding  officer  of 

any    "brigade,    regiment,    or  separate   or 

detached  battalion,  or  other  separate  or 

detached  command,"  etc.,  for  the  trial  of 

enlisted  men  in  the  naval  seriace ;  and  that 

when  empowered  by  the  Secretary  of  the 

Na\n>',     general     courts-martial    may    be 

convened  by  the  commanding  officer  of 

"a  brigade  or  larger  force  of  the  naval 

eer^-ice  on  shore  beyond  the  continental 

limits  of  the  United  States";  and  in  time 

of  war  by  the  commanding  ofUcer  of  "a 

brigade  or  larger  force  of  the   Navy  or 

Marine  Corps  on  shore  not  attached  to  a 

navy  yard  or  naval  station,"  if  so  em- 
powered by  the  Secretary  of  the  Navy. 
Organization  into  reg^iments  and  bri- 
gades.— The  organization  of  the  Marine  Corps 
is  sui  generis,  in  that  there  is  no  provision  of 
law  for  its  formation  into  regiments  or  bat- 
talions, or  the  assignment  of  its  officers  to  any 
particular  command.  (Berrvman  v.  U.  S.,  43 
Ct.  (Is.,  397.) 

By  order  of  the  Major  General  Commandant 
the  ofiicers  in  charge  of  the  marines  at  Cavite, 

Sec.  1612.  [Pay  and  allowances.]  The  officers  of  the  Marine  Corps  sliall  bo 
entitled  to  receive  the  same  pay  and  allowances,  and  the  enhsted  men  shall  be 
entitled  to  receive  the  same  pay  and  bounty  for  re-enlisting,  as  are  or  may  be 
pro^nded  by  or  in  pursuance  of  law  for  the  officers  and  enlisted  men  of  lilse 
grades  in  the  infantry  of  the  Army. —  (30  June,  1834,  c.  132,  s.  5,  v.  4,  p.  713. 
1854,  c.  268,  s.  1,  v.  10,  p.  58G.) 


P.  I.,  were  organized  into  the  first  brigade  of 
marines,  composed  of  two  regiments  of  two 
battalions  each.  The  order  of  the  commandant 
was  presumably  made  by  direction  of  the 
President,  pursuant  to  section  1611,  Revised 
Statutes,  and  the  name  of  regiments  given  to 
said  liodies  of  marines  did  not  change  their 
character,  but  they  remained  under  the  generic 
term  of  "detachments"  contained  in  section 
1611.     (Berryman  v.  U.  S.,  43  Ct.  Cls.,  397.) 

The  act  of  April  26,  1898,  section  7  (30  Stat., 
365),  provided  that  "in  time  of  war  every  officer 
serving  with  troops  operating  against  an 
enemy  who  shall  exercise,  under  assignment  in 
orders  issued  by  competent  authority,  a  com- 
mand above  that  pertaining  to  his  gi-ade,  shall 
be  entitled  to  receive  the  pay  and  allowances 
of  the  grade  appropriate  to  the  command  so 
exercised."  A  lieutenant  colonel  of  the 
Marine  Corps  was  assigned  to  the  command  of 
a  so-called  regiment.  Held,  that  he  was  not  an 
officer  having  a  command  above  that  pertain- 
ing to  his  grade,  within  the  act  of  April  26, 
1898,  and  was  not  entitled  to  the  pay  of  a 
colonel  in  the  Marine  Corps.  (Ben-yman  r. 
U.  S.,  43  Ct.  Cls.,  397.) 


5  Aug., 

General  note.— Many  statutory  enactments 
subsequent  to  the  lle\'ised  Statutes  relate 
specifically  to  the  pay  and  allowances  of  the 
Marine  Corps,  and  section  1612,  Revised  Stat- 
utes, making  the  Marine  Corps  subject  to 
Army  laws  as  to  pay  and  allowances,  is  modi- 
fied to  the  extent  that  Congress  has  thus  other- 
\\-i.se  pro\ided.  Such  specific  enactments  re- 
lating to  the  Marine  Corps  are  set  out  separately 
below. 

By  act  of  "May  18, 1920  (41  Stat.,  601),  tempo- 
rarily increasing  the  pay  and  allawances  of  the 
Army,  Navy,  Marine  Corps,  Coast  Guard, 
Coast  and  Geodetic  Sui-vey,  and  Public  Health 
Service,  it  was  provided  (sec.  13,  41  Stat.,  604) 
that  "a  special  committee,  to  be  composed  of 
five  Members  of  the  Senate,  to  be  appointed 
by  the  Vice  President,  and  five  Members  of 
the  House  of  Representatives,  to  be  appointed 


by  the  Speaker  of  the  House  of  Representatives, 
shall  make  an  investigation  and  report  recom- 
mendations to  their  respective  Houses  not  later 
than  the  first  Monday  in  January,  1922,  relative 
to  the  readjustment  of  the  pay  and  allowances 
of  the  commissioned  and  enlisted  personnel  of 
the  several  ser\dces  herein  mentioned." 

LAWS  RELATING    SPECIFICALLY  TO   MARINE 
CORPS. 

Sea  duty  pay. — By  act  of  March  3,  1915  (38 
Stat.,  948),  it  was  provided  "that  the  increased 
compensation  as  now  fixed  by  law  for  the  Ma- 
rine Corps  for  foreign  shore  service  shall  here- 
after be  paid  to  the  ofiicers  and  enlisted  men 
of  that  corps  while  on  sea  duty,  in  the  same 
manner  and  under  the  same  conditions  as  is 
pro\dded  by  the  act  approved  May  thirteenth. 


936 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1612. 


nineteen  hundred  and  eight,  for  officers  of  the 
Navy."  (See  Army  laws  noted  below  as  to 
pay  for  foreign  shore  service;  see  note  to  sees. 
1556  and  1571,  R.  S.,  as  to  sea  pay  allowed 
officers  of  the  Navy.) 

Shore  duty  beyond  seas. — See  note  below, 
under  Army  laws  applicable  to  Marine  Corps. 

Foreign  shore  service,  wanant  officers. — "That 
marine  gunners  and  quartermaster  clerks  of  the 
Marine  Corps  assigned  to  foreign  shore  ser\ice 
shall  hereafter  be  entitled  to  the  same  increased 
compensation  and  under  the  same  contlitions 
as  is  now  or  hereafter  allowed  by  law  to  com- 
missioned officers  of  the  Marine  Corps."  (Act 
Mar.  4,  1917,  39  Stat.,  1188.) 

Marines  serving  as  firemen. — See  section  1570, 
Re\'ised  Statutes,  as  amended  by  act  of  March 
29,  1918  (40  Stat.,  499). 

Marines  detained  after  expiration  of  enlist- 
ment.— See  section  1422,  Re\i8ed  Statutes,  and 
note  thereto. 

Navy  mail  clerks. — See  note  to  section  1569, 
Revised  Statutes. 

_  By  act  of  May  27,  1908  (35  Stat.,  417),  addi- 
tional compensation  was  authorized  for  enlisted 
men  of  the  Navy  designated  as  Navy  mail 
clerks  and  assistant  Navy  mail  clerks,  in 
amounts  to  be  fixed  by  the  Secretary  of  the 
NaA'y,  not  exceeding  $500  per  annum  for  mail 
clerks  and  $300  per  annum  for  assistant  mail 
clerks.  By  act  of  August  24,  1912,  section  11 
(37  Stat.,  560),  this  pro\'ision  was  expressly 
extended  to  include  enlisted  men  of  the  Marine 
Corps  so  designated.  (See  also,  acts  Aug.  24, 
1912,  37  Stat.,  554;  Mar.  4,  1917,  39  Stat.,  1188; 
and  July  1,  1918,  40  Stat.,  718.) 

Aviation  duty. — Additional  pay  and  allow- 
ances for  officers  and  enlisted  men  of  the  Navy 
and  Marine  Corps  detailed  for  duty  involving 
actual  flying  in  air  craft,  were  authorized  by 
act  of  March  3,  1915  (38  Stat.,  939),  as  amended 
by  act  of  August  29,  1916  (39  Stat.,  582-586). 
See  note  to  section  1556,  Revised  Statutes. 
Increased  "allowances"  for  aviation  duty  were 
prohibited  in  the  cases  of  "officers,  enlisted 
men,  and  student  flyers  of  the  naval  ser\dce," 
by  act  of  July  1,  1918  (40  Stat.,  718.) 

Absence  from  duty. — By  act  of  August  29,  1916 
(39  Stat.,  580),  as  amended  by  act  of  July  1, 
1918  (40  Stat.,  717),  it  was  provided  that  no 
officer  or  enlisted  man  of  the  Navy  or  Marine 
Corps  shall  receive  pay  for  any  period  in  excess 
of  one  day  that  he  is  absent  from  duty  on  ac- 
count of  injury,  sickness,  or  disease  resulting 
from  his  own  intemperate  use  of  drugs  of  alco- 
holic Liquors,  or  other  misconduct. 

By  act  of  March  4,  1917  (39  Stat.,  1191),  it 
was  pro\'ided  ' '  that  hereafter  no  part  of  the  pay 
and  allowances  authorized  for  enlisted  men 
detailed  as  clerks  and  messengers  in  the  office 
of  the  Major  General  Commandant  and  the 
several  staff  offices  shall  be  forfeited  when 
granted  furlough  for  not  exceeding  thirty  days 
in  each  calendar  year." 

Longevity  pay. — "Hereafter  longevity  pay  for 
officers  in  the  Army,  Navy,  Marine  Corps, 
Coast  Guard,  Public  Health  Service,  and  Coast 
and  Geodetic  Survey  shall  be  based  on  the  total 
of  all  service  in  any  or  all  of  said  services." 
(Act  May  18,  1920,  sec.  11,  41  Stat.,  604.) 

See  also  statutory  enactments  noted  under 
section  1600,  Revised  Statutes. 


Allotments  of  pay  by  officers  of  the  Navy  and 
Marine  Corps  are  authorized  by  act  of  June 
10,  1896  (29  Stat.,  361.) 

Employment  by  contractors  furnishing  naval 
supplies  or  war  material  to  the  Govermnent, 
was  prohibited  in  cases  of  officers  of  the  Navy 
and  Marine  Corps  by  act  of  June  10,  1896  (29 
Stat.,  361),  which  pro\'ided  that  no  payments 
were  to  be  made  to  such  officers  while  so  em- 
ployed. 

Warrant  officers  and  pay  clerks. — By  act  of 
August  29,  1916  (39  Stat.,  611),  it  was  provided 
that  marine  gunners  and  quartermaster  clerks 
shall  "receive  the  pay,  allowances,  and  privi- 
leges of  retirement  of  warrant  officers  in  the 
Navy."  (See  note  to  sec.  1556,  R.  S.,  as  to 
pay  of  warrant  officers  in  the  Navy.  See  also 
note  above,  under  "Foreign  shore  service, 
warrant  officers.") 

By  act  of  July  1,  1918  (40  Stat.,  735),  it  was 
provided  that  pay  clerks  shall  "receive  the 
same  pay,  allowances,  and  other  benefits  now 
provided  by  law  for  clerks  for  assistant  pay- 
masters." 

By  act  of  June  24,  1910  (36  Stat.,  625),  it  was 
pro\ided  that  clerks  to  assistant  paymasters 
"shall  receive  the  same  pay,  allowances,  and 
other  benefits  as  are  now  or  may  hereafter  be 
provided  for  paymasters'  clerks  of  correspond- 
ing length  of  service  in  the  United  States 
Army." 

By  act  of  March  3,  1911  (36  Stat.,  1044),  it 
was  provided  that  "hereafter  the  pay  and  allow- 
ances of  Army  paymasters'  clerks  shall  be  the 
same  as  provided  by  law  for  Navy  paymasters' 
clerks  on  shore  duty,  and  they  shall  also  be 
entitled  to  the  same  right  of  retirement  with 
the  same  retired  pay  as  is  now  allowed  Navy 
paymasters'  clerks." 

By  act  of  June  24,  1910  (36  Stat.,  606), 
relating  to  the  Navy,  it  was  provided  that  "all 
paymasters'  clerks  shall,  while  holding  appoint- 
ment in  accordance  with  law,  receive  the  same 
pay  and  allowances  and  have  the  same  rights 
of  retirement  as  warrant  officers  of  like  length 
of  service  in  the  Navy. ' '  (As  to  pay  and  allow- 
ances of  warrant  officers,  see  notes  to  sees.  1556, 
1558,  and  1578,  Revised  Statutes.) 

By  act  of  August  24,  1912  (37  Stat.,  592),  it 
was  provided  that  Army  paymaster's  clerks 
shall  be  known  as  pay  clerks,  and  shall  con- 
continue  to  have  the  pay,  allowances,  rights, 
and  privileges  now  allowed  by  law. 

By  act  of  March  2,  1913  (37  Stat.,  708),  re- 
lating to  the  Army,  appropriations  were  made 
for  85  pay  clerks,  and  it  was  provided  "that 
hereafter  no  further  appointments  of  pay  clerks 
shall  be  made."  Appropriations  for  Army  pay 
clerks  were  continued  in  annual  appropria- 
tion acts  to  and  including  act  of  March  4,  1915 
(38  Stat.,  1068);  since  which  date  such  appro- 
priations have  been  discontinued,  except  for 
retired  pav  clerks. 

_  By  act  of  March  3,  1915  (38  Stat.,  942),  the 
title  "paymaster's  clerk"  in  the  Navy  was 
changed  to  pay  clerk,  and  the  grades  of  acting 
pay  clerk,  pay  clerk,  and  chief  pay  clerk 
created,  vrith  a  provision  that  pay  clerks  were 
thereafter  to  be  warranted  from  acting  pay 
clerks,  and  that  pay  clerks  and  acting  pay 
clerks  "shall  have  the  same  pay,  allowances, 
and  other  benefits  as  are  now  or  may  hereafter 


937 


Sec.  1612. 


rt.  2.  REVISED  STATUTES. 


The  Navy. 


be  allowed  other  warrant  officers  and  acting 
warrant  oflicorp,  respectively." 

Hy  act  of  .lune  3,  191()  (39  Stat.,  170),  it  was 
provided  that  the  Quartermaster  Corps  in  the 
Army  shall  consist,  amone;  others,  of  "the  pay 
clerks  now  in  active  service,  who  shall  here- 
after have  the  rank,  pay,  and  allowances  of  a 
second  lieutenant,  and  the  President  is  hereby 
authorized  to  appoint  and  commission  them, 
by  and  Avith  the  advice  and  consent  of  the 
Senate,  second  lieutenants  in  the  Quarter- 
master Corps,  United  States  Army."  (See  23 
Comp.  Dec,  508.) 

liy  act  of  August  29,  1916  (39  Stat.,  625,  626), 
it  was  provided  that  Army  field  clerks,  and 
field  clerks.  Quartermaster  Corps,  "shall  re- 
ceive the  same  allowances,  except  retirement, 
as  heretofore  allowed  by  law  to  pay  clerks." 
By  act  of  June  4,  1920  (41  Stat.,  761),  further 
appointments  as  Army  field  clerks  and  field 
clerks.  Quartermaster  Corps,  were  prohibited, 
and  persons  serving  as  such  were  rendered 
eligible  for  appointment  as  warrant  officers  in 
the  Army. 

Gunnery  sergeants. — By  act  of  August  22,  1912 
(37  Stat.,  351),  "gunnery  sergeants  of  the 
Marine  Corps  shall  hereafter  receive  the  same 
pay,  and  be  entitled  to  the  allowances,  rank, 
continuous-service  pay,  and  retired  pay  of  a 
first  sergeant  in  said  corps."  (See  also  note 
to  sec.  1596,  R.  S.) 

Drum  major. — "The  pay  of  the  drum  major 
shall  be  the  same  as  that  now  established,  or 
that  may  be  hereafter  established,  for  first  ser- 
geants in  the  Marine  Corps  of  the  same  length 
of  service."     (Act  July  26,  1894,  28  Stat.,  138.) 

Cooks. — ' '  That  hereafter  privates  regularly  de- 
tailed and  ser"\dng  as  cooks  shall  receive,  in  addi- 
tion to  the  pay  otherwise  allowed  by  law,  the  fol- 
lowing: First-class  cooks,  ten  dollars  per  month; 
second-class  cooks,  eight  dollars;  third-class 
cooks,  seven  dollars;  and  fourth-class  cooks,  five 
dollars."     (Act  Mar.  2, 1907,  34  Stat.,  1200.) 

Forage.— By  act  of  March  3,  1885  (23  Stat., 
432),  under  "Marine  Corps,"  appropriations 
were  made  for  forage,  with  the  proviso  "that  no 
commutation  for  forage  shall  be  paid." 

Extra-duty  pay. — "That  hereafter  extra-duty 
pay  will  not  be  allowed  to  enlisted  men  of  the 
Marine  Corps  except  when  they  are  regularly 
detailed  thereon  by  a  written  order  of  the  com- 
mandant of  the  corps."  (Act  Mar.  3,  1909,  35 
Stat.,  776.  See  Army  law  noted  below  as  to 
extra-duty  pay.) 

Duty  in  Haiti. — Officers  and  enlisted  men  of 
the  Marine  (^orps  detailed  for  duty  to  assist  the 
Republic  of  Haiti  shall  be  entitled  to  the  same 
credit  for  such  service,  for  longevity,  retire- 
ment, foreign  service,  pay,  and  for  all  other 
purposes,  that  they  would  receive  if  they  were 
serving  with  the  Marine  Corps.  (Act  June  12, 
.1916,  sec.  5,  39  Stat.,  224.) 

Gun  pointers. — During  the  period  of  the  pres- 
ent war  any  enlisted  man  of  the  Marine  Corps 
qualified  and  detailed  as  a  gun  pointer  or  gun 
captain  shall  be  entitled  to  the  additional  pay 
provided  for  such  qualification  and  detail, 
while  temporarily  absent  by  proper  authority 
or  while  performing  other  temporary  duty. 
(Act  Mar.  29,  1918,  40  Stat.,  500. _  See  below, 
under  "Additional  pay  for  special  qualifica- 


tions, details,  etc.,"  and  see  decisions  of  Comp- 
troller of  the  Treasury  noted  below.) 

Enlistments  changed  to  duration  of  war. — Any 
man  who  enlisted  in  the  Marine  Corps  after 
February  13,  1917,  and  before  November  11, 
1918,  for  a  term  of  four  years,  and  who,  upon  his 
own  application,  was  regarded  as  having  en- 
listed for  the  duration  of  tlie  war  and  honorably 
discharged,  and  within  four  months  thereafter 
reenlisted  in  the  Marine  C'orps  for  a  period  of 
four  years,  "shall  be  entitled  to  receive  the 
benefits  and  gratuity  pay  provided  by  existing 
law  for  reenlistments;"  or,  if  otherwise  entitled 
to  an  honorable  discharge,  may  extend  his  en- 
listment for  a  period  of  one,  two,  three,  or 
four  years,  and  shall  be  entitled  to  the  same 
rights,  privileges,  pay  and  allowances  in  all  re- 
spects as  now  provided  by  law  for  men  who  ex- 
tend enlistments  on  completion  of  terms  of  en- 
listment, except  as  to  gi-atuity  pay;  and  as  to 
such  gratuity  pay  he  shall  be  entitled  to  an 
allowance  of  one  months'  pay  for  extension  of 
one  year,  two  months'  pay  for  extension  of  two 
years,  and  three  months'  pay  for  extension  of 
three  years.  (Act  July  11,  1919,  41  Stat.,  139, 
140.) 

Reenlistment  after  reserve  service. — Enlisted 
men  of  the  Marine  Corps  discharged  to  accept 
appointments  as  commissioned  or  warrant 
officers  in  the  Marine  Corps  Reserve,  who  reen- 
list  in  the  Marine  Corps  within  three  months 
after  termination  of  their  reserve  service,  shall 
be  restored  to  the  grade  or  rank  held  by  them 
before  being  discharged  to  accept  such  appoint- 
ments, and  their  service  in  the  Regular  Marine 
Corps  including  their  active  service  in  the  Ma- 
rine Corps  Reserve  shall  be  regarded  as  contin- 
uous for  purposes  of  continuous  service  pay. 
(Act  July  11,  1919,  41  Stat.,  141.) 

Wan-ant  officers  and  pay  clerks  having  reserve 
service. — Any  warrant  officer  or  pay  clerk  in  the 
Marine  Corps  who  has  accepted  or  may  here- 
after accept  appointment  as  a  commissioned 
officer  in  the  Marine  Corps  Reserve  shall  be  en- 
titled, upon  termination  of  his  appointment  as  a 
commissioned  officer,  to  revert  to  his  former 
status  as  a  warrant  officer  or  pay  clerk  in  the 
Marine  Corps,  and  to  count  all  active  serA-ice 
for  purposes  of  longevity  pay  and  retirement. 
(Act  July  11,  1919,  41  Stat.,  141.) 

Special  allowances  for  maintenance  .—By  act 
of  June  4,  1920  (41  Stat.,  813),  under  "Pay, 
Miscellaneous,"  it  was  provided  that  "this  ap- 
propriation and  the  appropriation  'Pay,  Ma- 
rine Corps, '  shall  be  available  for  special  allow- 
ances for  maintenance  to  officers  and  enlisted 
men  of  the  Navy  and  IMarine  Corps  serving  un- 
der unusual  conditions." 

Retired  enlisted  men. — See  note  to  Section  1622, 
Revised  Statutes. 

Marine  Band. — See  note  to  section  1613,  Re- 
\ised  Statutes. 

Additional  pay  for  special  qualifications,  de- 
tails, etc. — The  naval  appropriation  act  June 
4,  1920  (41  Stat.,  829), _  under  "Pay,  Marine 
Corps,"  makes  appropriation  for  "additional 
compensation  for  enlisted  men  of  the  Marine 
Corps  qualified  as  expert  riflemen,  sharp- 
shooters, marksmen,  or  regularly  detailed  as 
gun  captains,  gun  pointers,  mess  sergeants, 
cooks,  messmen,  signalmen,  or  holding  good- 


938 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1612. 


conduct  medals,  pins,  or  bars,  including  in- 
terest on  deposits  by  enlisted  men,  post-ex- 
change debts  of  deserters,  under  such  rules  as 
the  Secretary  of  the  Navy  may  prescribe,  and 
the  authorized  travel  allowance  of  discharged 
enlisted  men,  and  for  prizes  for  excellence  in 
gunnery  exercise  and  target  practice,  and  for 
pay  of  enlisted  men  designated  as  Navy  mail 
clerks  and  assistant  Navy  mail  clerks,  both 
afloat  and  ashore."  (See  Army  laws,  and  de- 
cisions of  Comptroller  of  the  Ti-easury,  noted 
below,  and  see  notes  above,  under  ' '  Cooks' '  and 
"Gun  pointers.") 

Medals  of  honor,  etc. — See  note  to  section 
1407,  Re\ised  Statutes,  and  see  24  Op.  Atty. 
Gen.,  579,  noted  thereunder.  See  also  act  of 
February  4,  1919  (40  Stat.,  1056),  and  26  Comp. 
Dec,  464. 

Commutation  of  fuel,  enlisted  men. — By  act  of 
April  27,  1904  (33  Stat.,  407),  it  was  provided 
that ' '  the  quartermaster  of  the  Marine  Corps  be, 
and  is  hereby,  authorized  and  dii-ected  to  pay 
from  appropriations  fuel.  Marine  Corps,  to  en- 
listed men  of  the  Marine  Corps  employed  as 
clerks  and  messengers  in  the  office  of  the  com- 
mandant and  in  the  offices  of  the  staff  officers 
of  the  Marine  Corps  commutation  of  fuel,  at 
nine  dollars  each  per  month  for  clerks  and 
eight  dollars  each  per  month  for  messengers, 
from  and  after  January  twenty-second,  nine- 
teen hundred  and  four,'  when,  by  a  decision  of 
the  Comptroller  of  the  Treasury,  enlisted  men 
so  employed  were  denied  the  right  to  said  com- 
mutation in  said  amounts." 

Commutation  of  quarters,  enlisted  men. — By 
actof  June4, 1920  (41  Stat.,  832),  appropriation 
was  made  for  "commutation  of  quarters  for  en- 
listed men  on  recrmting  duty,  for  officers  and 
enlisted  men  ser^ing  with  troops  where  there 
are  no  public  quarters  belonging  to  the  Govern- 
ment, and  where  there  are  not  sufficient  quar- 
ters possessed  by  the  United  States  to  accommo- 
date them,  for  enlisted  men  employed  as  clerks 
and  messengers  in  the  offices  of  the  comman- 
dant, adjutant  and  inspector,  paymaster,  and 
quartermaster,  and  the  offices  of  the  assistant 
adjutant  and  inspectors,  assistant  paymasters, 
assistant  quartermasters,  at  S21  each  per  month, 
and  for  enlisted  men  employed  as  messengers 
in  said  offices,  at  $10  each  per  month." 

Bounty  for  reenlisting. — By  act  of  June  4, 
1920,  section  7  (41  Stat..  836),  _  authorizing 
short-term  enlistments  in  the  Marine  Corps,  it 
was  provided  that  "all  laws  now  applicable  to 
four-year  enlistments  shall  apply,  under  such 
regulations  as  may  be  prescribed  by  the  Secre- 
tary of  the  Navy,  to  enlistments  for  a  shorter 
period  ^\"ith  proportionate  benefits  upon  dis- 
charge and  reenlistment:  Provided.  That  here- 
after the  Secretary  of  the  Navy  is  authorized, 
in  his  discretion,  to  establish  such  grades  and 
ratings  as  may  be  necessary  for  the  proper 
administration  of  the  enlisted  personnel  of  the 
Navy  and  Marine  Corps."  (See27  Comp.  Dec, 
101,  noted  below,  as  to  repeal  in  part  of  sec 
1612.) 

Mileage,  travel  without  troops. — By  act  of 
June  10,  1896  (29  Stat.,  376),  it  was  provided 
that  "hereafter  officers  of  the  Marine  Corps 
traveling  under  orders  without  troops  shall  be 
allowed  the  same  mileage  as  is  now  allowed 
officers  of  the  Navy  traveling  without  troops." 


(See  note  to  sec.  1566,  R.  S.     And  see  decisions 
of  Comptroller  of  the  Treasury,  noted  below.) 

Repeated  travel. — "Hereafter  in  cases  where 
orders  are  given  to  officers  of  the  Navy  or  Ma- 
rine Corps  for  travel  to  be  performed  repeatedly 
between  two  or  more  places  in  such  vicinity  as 
in  the  discretion  of  the  Secretary  of  the  Navy 
is  appropriate,  he  may  direct  that  actual  and 
necessary  expenses  only  be  allowed."  (Act 
July  1,  1902,  32  Stat.,  663.  See  note  to  sec. 
1566,  R.  S.) 

Transportatio  n  furnished. — "  H  er  eaf  ter  no 
mileage  shall  be  paid  to  any  officer  where  Gov- 
ernment transportation  is  fui'nished  such 
officer."  (Act  June  30,  1914,  38  Stat.,  410, 
under  "Pay,  Marine  Corps.") 

Furlough  certificates. — The  Secretary  of  the 
Navy  is  authorized  to  issue  to  wounded  and 
otherwise  disabled  sailors  or  marines,  under 
treatment  in  any  hospital,  who  are  given  fur- 
loughs at  any  time,  a  furlough  certificate  which 
shall  entitle  such  sailor  or  marine  to  purchase  a 
ticket  to  and  from  his  home  during  the  period 
of  furlough  at  the  rate  of  one  cent  per  mile. 
(Act  June  5.  1920,  41  Stat.,  975,  976.) 

Transportation  of  families. — By  act  of  May  18, 
1920,  section  12  (41  Stat.,  604),  transportation 
in  kind  was  authorized  for  the  \viie  and  de- 
pendent child  or  children  of  any  commissioned 
officer,  noncommissioned  officer  of  the  grade  of 
color  sergeant  and  above,  including  any  non- 
commissioned officer  of  the  Marine  Corps  of 
coiTesponding  grade,  or  warrant  officer,  upon 
the  permanent  chaiige  of  station  by  such, 
officer  or  noncommissioned  officer.  (By  Army 
act  of  June  4,  1920,  sec.  4,  41  Stat.,  761,  it  was 
provided  that  this  transportation  privilege 
'  'shall  apply  only  to  enlisted  men  of  the  first 
three  grades.") 

Reimbursement  for  lost  clothing,  etc. — By  act 
of  October  6,  1917  (40  Stat.,  389),  provision  was 
made  for  reimbursement  in  money  by  the  pay- 
master of  the  Marine  Corps,  or  reimbursement 
in  kind  by  the  quartermaster  of  the  Marine 
Corps  to  persons  in  the  Marine  Corps  for  prop- 
erty lost  or  destroyed  in  the  service.  (See 
sec.  290,  R.  S.) 

Quarters  for  dependents. — By  act  of  December 
24,  1919  (41  Stat.,  384),  it  was  provided  that 
officers  of  the  Marine  Corps  shall  be  entitled, 
during  the  present  emergency,  to  all  the 
rights  and  benefits  under  the  act  of  April  16, 
1918  (40  Stat.,  530),  authorizing  quarters  in 
kind  for  dependents  of  officers  of  the  Army 
during  absence  in  the  field,  or  the  authorized 
commutation  therefor,  including  allowance 
of  heat  and  light.  By  act  of  May  18,  1920, 
section  2  (41  Stat.,  602).  said  rights  and  benefits 
were  continued  until  June  30,  1922,  and  it  was 
provided  "That  such  rights  and  benefits  as  are 
prescribed  for  officers  shall  apply  equally  for 
enlisted  men  now  entitled  by  regulations  to 
quarters  or  to  conunutation  therefor." 

When  quarters  not  available. — By  act  of  July 
1,  1918  (40  Stat.,  718),  it  was  provided  that 
"hereafter  the  Secretary  of  the  Nav^  may  de- 
termine where  and  when  there  are  no  public 
quarters  available  for  persons  in  the  Nav^y  and 
Marine  Corps,  or  serving  therewith,  vsithin  the 
meaning  of  any  Act  or  parts  of  Acts  relating  to 
the  assignment  of  quarters  or  commutation 
therefor." 


54641°— 22- 


-60 


939 


Sec.  1612. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Travel  allowance  on  discharge. — By  act  of 
February  28,  1919,  section  3  (40  Stat.,  1202, 
1203),  it  was  provided  that  any  enlisted  man 
lionorably  discharged  from  llie  Marine  Corps 
shall  receive  5  cent.s  per  mile  from  place  of 
discharge  to  his  actual  bona  fide  home  or  res- 
idence, or  original  muster  into  the  serAdce, 
at  Ms  option,  w-ith  a  proviso  that  for  sea  travel 
on  discharge  transportation  and  subsistence 
onlv  shall  be  furnished.  (See  note  to  sec. 
I5(ii),  II.  S.)  By  act  of  June  4,  1920,  section  6 
(41  Stat.,  836),  said  travel  allowance  was 
made  payable  to  any  enlisted  man  thereafter 
discharged  from  any  branch  of  the  naval  serv- 
ice for  the  purpose  of  reenlisting  in  the  Navy 
or  Marine  Corps,  or  who  should  thereafter 
extend  his  enlistment  therein. 

Deposits  of  savings. — By  act  of  June  29,  1906 
(34  Stat.,  579),  enlisted  men  of  the  Marine 
Corps  were  authorized  to  deposit  their  savings, 
and  receive  interest  thereon  fi-om  the  Govern- 
ment, in  the  same  manner  and  under  the  same 
conditions  as  provided  for  enlisted  men  of  the 
Navy,  except  that  sums  so  deposited  shall  pass 
to  the  credit  of  the  appropriation  for  pay  of  the 
Marine  Corps.     (See  note  to  sec.  1569,  R.  S.) 

Death  gratuity. — Payment  of  an  amount 
equal  to  six  months'  pay  to  the  widow,  cliild 
or  cliildren,  or  other  designated  dependent  re- 
lati\e  of  any  officer  or  enlisted  man  of  the 
Regular  Marine  Corps  dying  from  wounds  or  dis- 
ease not  the  result  of  his  own  misconduct,  was 
authorized  by  act  of  June  4, 1920  (41  Stat.,  824). 

Sale  of  miiforvis  at  cost. — By  act  of  July  11, 
1919  (41  Stat.,  154),  under  "Clothing,  Marine 
Corps,"  it  was  provided  that  "hereafter  this 
appropriation  shall  be  available  for  the  pur- 
chase of  uniforms,  accouterments,  and  equip- 
ment for  sale  at  cost  price  to  officers  under 
such  regulations  as  the  Secretary  of  the  Navy 
may  prescribe." 

Sale  of  subsistence  stores,  etc. — By  act  of 
August  29,  1916  (39  Stat.,  613),  under  "Pro\d- 
sions.  Marine  Corps."  it  was  provided:  "That 
hereafter  so  much  of  this  appropriation  as  may 
be  necessary  may  be  applied  for  the  purchase, 
for  sale  to  officers,  enlisted  men,  and  civilian 
employees,  of  such  articles  of  subsistence 
stores  as  may  from  time  to  time  be  designated 
and  under  such  regulations  as  may  be  pre- 
scribed by  the  Secretary  of  the  Navy."  (The 
same  provision  was  contained  in  identical 
language  in  appropriation  acts  for  prior  years. 
It  was  omitted  from  the  act  of  March  4,  1917, 
and  has  not  since  appeared,  its  ondssion  being 
for  the  reason  that  it  was  regarded  as  per- 
manent legislation  as  it  already  existed.  (See 
Hearings  before  Committee  on  Naval  Affairs, 
House  of  Representatives,  64th  Cong.,  2d 
sess.,  p.  365,  with  reference  to  "Provisions, 
Marine  Corps";  see  also  act  Mar.  4,  1913,  37 
Stat.,  909,  and  note  thereto^ 

Honorably  discharged  officers  and  enUsted 
men  of  the  Navy  or  Marine  Corps,  while  under 
medical  treatment  by  public  health  service, 
may  be  permitted  to  purchase  subsistence 
stores  and  articles  of  other  authorized  sup- 
plies, except  articles  of  uniform,  from  the 
Army,  Navy,  and  Marine  Corps,  at  the  same 
price  as  charged  the  officers  and  enlisted  men 
of  the  Army,  Navy,  and  Marine  Corps.  (Act 
June  5,  1920,  41  Stat.,  976.) 


Subsistence  supplies  of  the  Army  may  be 
sold  to  officers  and  enlisted  men  of  the  Navy 
and  Marine  Corps  at  same  prices  charged  of- 
ficers and  enlisted  men  of  the  Army.  (Act 
Aug.  29,  1916,  .39  Stat.,  630,  which  alsoproAdded 
that  the  officers  and  enlisted  men  of  tlie  Army 
shall  be  permitted  to  purchase  subsistence 
supplies  from  the  Navy  and  Marine  Corps  at 
the  same  price  as  is  charged  officers  and  en- 
listed men  of  the  Navy  and  Marine  Corps.) 

Articles  of  serviceable  quartermaster  property 
may  be  sold  by  the  Quartermaster  General  of 
the  Army  to  officers  of  the  Navy  and  Marine 
Corps,  for  their  use  in  the  public  service,  in 
the  same  manner  as  these  articles  are  now 
sold  to  officers  of  the  Army.  (Act  Mar.  4,  1915, 
38  Stat.,  1079.) 

Temporary  increases  in  pay  of  Marine  Corps — . 
See  act  May  18,  1920  (41  Stat.,  601),  noted 
below  imder  "Army  laws  applicable  to  Marine 
Corps." 

ARMY  LAW.S  APPLICABLE  TO  MARINE  CORPS. 

Pay  of  officers.— By  act  May  11,  1908  (35  Stat., 
108),  it  was  provided  "that  hereafter  the  an- 
nual pay  of  officers  of  the  Army  of  the  several 
grades  herein  mentioned  shall  be  as  follows: 
Major-general,  eight  thousand  dollars;  briga- 
dier-general, six  thousand  dollars;  colonel, 
four  thousand  dollars;  lieutenant-colonel,  three 
thousand  five  hundred  dollars;  major,  three 
thousand  dollars;  captain,  two  thousand  four 
himdred  dollars;  first  lieutenant,  two  thousand 
dollars;  second  lieutenant,  one  thousand  seven 
himdred  dollars." 

Mounted  pay. — "Hereafter  the  United  States 
shall  furnish  mounts  and  horse  equipments  for 
all  officers  of  the  Army  below  the  gi-ade  of 
major  required  to  be  moimted,  but  in  case  any 
officer  below  the  grade  of  major  required  to  be 
mounted  pro\'ides  himself  with  suitable  mounts 
at  his  own  expense,  he  shall  receive  an  addi- 
tion to  his  pay  of  one  hundred  and  fifty  dollars 
per  annum  if  he  provides  one  mount,  and  two 
himdred  dollars  per  annum  if  he  provides  two 
moimts."     (Act  May  11,  1908,  35  Stat.,  108.) 

See  note  above,  imder  "Forage,"  for  law 
relating  to  commutation  of  forage  for  Marine 
officers. 

Longevity  pay  of  officers. — "There  shall  be 
allowed  and  paid  to  each  commissioned  officer 
below  the  rank  of  brigadier-general,  including 
chaplains  and  others  haAing  assimilated  rank 
or  pay,  ten  per  centum  of  their  current  yearly 
pav  for  each  term  of  five  years  of  service." 
(Sec.  1262,  R,  S.) 

"That  from  and  after  the  first  day  of  July,, 
eighteen  himdred  and  eighty-two,  the  ten  per 
centum  increase  for  length  of  service  allowed 
to  certain  officers  by  section  twelve  hundred 
and  sixty- two  of  the  Revised  Statutes  shall  be 
computed  on  the  yearly  pay  of  the  grade  fixed 
by  sections  twelve  hundred  and  sixty-one  and 
twelve  hundred  and  seventy -four  of  the  Re- 
vised Statutes. "_  (Act  June  30,  1882,  22  Stat. 
118.  See  decisions  of  Supreme  Court  noted 
below  as  to  longevity  pay.) 

"The  total  amoimt  of  such  increase  for 
length  of  service  shall  iii  no  case  exceed  forty 
per  centum  on  the  yearly  pay  of  the  grade  as 
provided  by  law."     (Sec.  1263,  R.  S.) 


940 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1612. 


"  In  no  case  shall  the  pay  of  a  colonel  exceed 
five  thousand  dollars  a  year;  the  pay  of  a  lieu- 
tenant-colonel exceed"  four  thousand  five 
hundred  dollars  a  year,  or  the  pay  of  a  major 
exceed  four  thousand  dollars  a  year."  (Sec. 
1267,  R.  S.,  as  reenacted  bv  act  May  11,  1908, 
35  Stat.,  108.  But  see  act  May  18,  1920,  41 
Stat.,  601,  noted  below,  temporarily  increas- 
ing pay  of  Army  and  Marine  officers.) 

"In  determining  relative  rank  and  increase 
of  pay  for  length  of  service,  *  *  *  active 
duty  performed  while  imder  appointment 
from  the  United  States  Government,  whether 
in  the  Regular,  provisional,  or  temporaiy  forces, 
shall  be  credited  to  the  same  extent  as  service 
under  a  Regular  Army  commission."  (Act 
Jime  4,  1920,  sec.  51,  41  Stat.,  785,  amending 
Act  June  3,  1916,  sec.  127,  39  Stat.,  217.  See 
also  note  to  sec.  1600,  R.  S.) 

Pay  not  recZwcerf.— "That  nothing  herein 
contained  shall  be  constnied  so  as  to  reduce  the 
pay  or  allowances  now  authorized  by  law  for 
any  officer  or  enlisted  man  of  the  Army." 
(Act  May  11,  1908,  35  Stat.,  110.) 

Aids  to  general  officers. — "  The  officers  of  the 
Army  shall  be  entitled  to  the  pay  herein  stated 
after  their  respective  designations:  *  *  * 
Aid  to  major  general:  two  himdred  dollars  a 
year,  in  addition  to  pay  of  his  rank.  Aid  to 
brigadier  general:  one  hundred  and  fifty  dollars 
a  year,  in  addition  to  pay  of  his  rank."  (Sec. 
1261,  R.  S.) 

See  note  to  section  1556,  Revised  Statutes, 
as  to  additional  pay  allowed  aids  in  the  Navy. 

Foreign  shore  service. — See  note  above, 
under  "Laws  relating  specificallv  to  Marine 
Corps." 

"Officers  and  enlisted  men  of  the  Marine 
Corps,  who  have  been  detailed,  or  may  here- 
after be  detailed,  for  shore  duty  in  Alaska,  the 
Philippine  Islands,  Guam,  or  elsewhere  be- 
yond the  continental  limits  of  the  United 
States,  shall  be  considered  as  having  been  de- 
tailed for  'shore  duty  beyond  seas,'  and  shall 
receive  pay  accordingly,  with  such  additional 
pay  as  may  be  pro\T.ded  by  law  for  service  in 
island  possessions  of  the  United  States." 
(Act  Mar.  3,  1901,  31  Stat.,  1108.) 

"That  hereafter  the  pay  proper  of  all  com- 
missioned officers  and  enlisted  men  serving 
beyond  the  limits  of  the  States  comprising  the 
Union  and  the  Territories  of  the  United  States 
contiguous  thereto  shall  be  increased  ten  per 
centum  for  officers  and  twenty  per  centum  for 
enlisted  men  over  and  above  the  rates  of  pay 
proper  as  fixed  by  law  for  time  of  peace,  and 
the  time  of  such  servdce  shall  be  coimted  from 
the  date  of  departure  from  said  States  to  the 
date  of  return  thereto."  (Act  June  30,  1902, 
32  Stat.,  512.) 

' '  That  increase  of  pay  for  service  beyond  the 
limits  of  the  States  comprising  the  Union,  and 
the  territories  of  the  United  States  contiguous 
thereto,  shall  be  as  now  provided  by  law." 
(Act  May  11,  1908,  35  Stat.,  110.)  _ 

"That  hereafter  the  laws  allowing  increases 
of  pay  to  officers  and  enlisted  men  for  foreign 
service  shall  not  apply  to  ser\dce  in  the  Canal 
Zone,  Panama,  or  Hawaii,  or  Porto  Rico." 
(Act  Aug.  24,  1912,  37  Stat.,  576.) 

Officers  and  enlisted  men  who  may  hereafter 
serve  on  Army  transports  in  the  Philippine 


Archipelago,  under  the  control  and  orders  of 
the  commanding  general,  Philippine  Division, 
shall  be  entitled  to  receive  the  same  rate  of 
pay  as  is  provided  by  law  for  officers  and  en- 
listed men  serving  at  shore  stations  beyond  the 
limits  of  the  United  States.  (Act  May  11, 1908, 
35  Stat.,  114.) 

Pay  during  absence. — "Officers  when  absent 
on  account  of  sickness  or  wounds,  or  lawfully 
absent  from  duty  and  waiting  orders,  shall 
receive  full  pay;  when  absent  with  leave,  for 
other  causes,  full  pay  during  such  absence  not 
exceeding  in  the  aggregate  thirty  days  in  one 
year,  and  half-pay  during  such  absence  exceed- 
ing thirty  days  in  one  year.  WTien  absent 
without  leave,  they  shall  forfeit  all  pay  during 
such  absence,  unless  the  absence  is  excused  as 
unavoidable."     (Sec.  1265,  R.  S.) 

"All  officers  on  duty  shall  be  allowed,  in  the 
discretion  of  the  Secretary  of  War,  sixty  days' 
leave  of  absence  without  deduction  of  pay  or 
allowance:  Provided,  That  the  same  be  taken 
once  in  two  years:  And  provided  further ,  That 
the  leave  of  absence  may  be  extended  to  three 
months,  if  taken  once  only  in  three  years,  or 
four  months  if  taken  only  once  in  four  years." 
(Act  July  29,  1876,  19  Stat.,  102,  amending  act 
May  8,  1874,  18  Stat.,  43. )_ 

Leaves  of  absence  which  may  be  granted 
officers  of  the  Regular  or  Volunteer  Army  serv- 
ing in  the  Territory  of  Alaska  or  without  the 
limits  of  the  United  States,  for  the  purpose  of 
returning  thereto,  shall  be  regarded  as  taking 
effect  on  the  dates  such  officers  reach  the  United 
States,  and  as  terminating  on  the  respective 
dates  of  their  departure  from  the  United  States 
in  returning  to  their  commands.  (Act  Mar.  2, 
1901,  31  Stat.,  902.) 

"Leaves  to  be  absent  from  the  Philippine 
Islands,  other  than  to  return  to  the  United 
States,  which  may  be  granted  officers  of  the 
Army  serving  in  said  islands  and  sailing  from 
Manila,  shall  be  regarded  as  taking  effect  on 
the  date  such  officers  reach  Manila,  and  as 
terminating  on  the  dates  of  their  departure 
from  Manila,  in  retm-ning  to  their  stations." 
(Act  Mar.  2,  1907,  34  Stat.,  1171.) 

"Officers  appointed  to  the  Regular  Army 
from  the  volunteer  service,  whose  service  has 
been  continuous,  shall,  in  the  computation  of 
leaves  of  absence  after  their  appointment  in 
the  Regular  Army,  be  entitled  to  the  leave 
credits  which  accrued  to  them  as  volunteer 
officers  where  such  leave  credits  were  not 
availed  of  during  their  volunteer  service." 
(Act  June  30,  1902,  32  Stat.,  508.) 

Absence  resulting  fi"om  misconduct:  See 
laws  noted  above,  under  "Laws  relating  specifi- 
cally to  Marine  Corps." 

Temporary  increases  in  pay  of  officers. — By  act 
of  May  18,  1920  (41  Stat.,  601-605),  the  pay  of 
officers  of  the  Army  and  Marine  Corps  was  in- 
creased, as  set  forth  below,  commencing  Jan- 
uary 1,  1920,  and  remaining  effective  until 
June  30,  1922;  such  annual  increases  being  "in 
addition  to  all  pay  and  allowances  now  allowed 
by  law:"  Colonels  in  the  Army  and  Marine 
Corps,  $600;  lieutenant  colonels  in  the  Army 
and  Marine  Corps,  $600;  majors  in  the  Army 
and  Marine  Corps,  .|840;  captains  in  the  Army 
and  Marine  Corps,  $720;  first  lieutenants  in  the 


941 


Sec.  1612. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Army  and  Marine  Corps,  $600;  second  lieuten- 
ant.s  in  the  Army  and  Marine  Corps,   $420. 

/*(((/  o/inlisttd  vun. — CJeneral  rates  of  pay  for 
enlisted  men  of  the  Army  were  prescribed  by 
act  of  May  11,  1908  (35  Stat.,  109).  Increases 
in  the  pay  of  enlisted  men  were  made  by  act  of 
May  IS,  1017.  section  10  (40  Stat.,  82),  to  con- 
tinue''  until  the  termination  of  the  emersjency." 
The.se  increa.^es  were  '"continued  in  force  and 
effect  from  and  after  the  date  and  approval  of 
this  Act,"  bv  act  approved  July  11,  1919  (41 
Stat.,  110). 

J5y  act  of  May  18,  1920  (41  Stat.,  601-605),  it 
was  pro\ided  that,  "commencing  January  1, 
1920,  the  pay  of  all  enlisted  men  of  the  Army 
and  Marine  Corps  and  of  members  of  the  female 
Nurse  Corps  of  the  Army  and  Navy  is  hereby 
increased  20  per  centum:  Provided,  That  sucn 
increase  shall  not  apjily  to  enlisted  men  whose 
initial  pay,  if  it  has  already  been  permanently 
increased  since  April  6,  1917,  is  now  less  than 
$33  per  month."  Such  increases  were  to  re- 
main effective  until  June  30,  1922,  unless 
sooner  amended  or  repealed,  but  were  to  "be 
the  rates  of  pay  during  the  current  enlistment 
of  all  men  in  active  serWce  on  the  date  of 
the  approval  of  this  Act,  and  for  those  who  en- 
list, reenlist,  or  extend  their  enlistments  prior 
to  July  1 ,  1922,  for  the  term  of  such  enlistment, 
reenlistment,  or  extended  enlistment." 

By  act  of  June  4,  1920,  section  4  (41  Stat., 
761),  new  rates  of  base  pay  were  prescribed  for 
enlisted  men,  as  set  fortn  below,  and  it  was 
provided  that  the  temporary  increase  of  pay  for 
enlisted  men  of  the  Army  authorized  by  act  of 
May  18,  1920,  above  quoted,  "shall  be  com- 
puted upon  the  base  pay  pro%ided  for  in  this 
section,  and  shall  apply  only  to  enlisted  men  of 
the  first  five  grades,"  and  it  was  further  pro- 
^dded  ' '  that  nothing  in  this  section  shall  operate 
to  reduce  the  pay  which  any  enlisted  man  is 
now  recei\'ing,  during  his  cuiTent  enlistment 
and  while  he  holds  his  present  grade,  nor  to 
change  the  present  rate  of  pay  of  any  enlisted 
men  now  on  the  retired  list." 

"On  and  after  July  1,  1920,  the  grades  of  en- 
listed men  shall  be  such  as  the  President  may 
from  time  to  time  direct,  with  monthly  base 
pay  at  the  rate  of  $74  for  the  first  grade,  $53  for 
the  second  grade,  $45  for  the  third  grade,  §45 
for  the  fourth  grade,  $37  for  the  fifth  grade,  $35 
for  the  sixth  grade,  and  $30  for  the  seventh 
grade.  Of  the  total  authorized  number  of  en- 
listed men,  those  in  the  first  grade  shall  not 
exceed  0.6  per  centum,  those  in  the  second 
grade  1.8  per  centum,  those  in  the  third  grade 
2  per  centum,  those  in  the  fourth  grade  9.5  per 
centum,  those  in  the  fifth  grade  9.5  per  centum, 
those  in  the  sixth  grade  25  per  centiim."  (Act 
June  4,  1920,  sec.  4,  41  Stat.,  761,  amending  act 
of  June  3,  1916,  sec.  4,  39  Stat.,  167.)  See  note 
abo^■e,  under  "Short  term  enlistments,"  for 
law  authorizing  Secretary  of  the  Navy  to  estab- 
lish grades  and  ratings  in  Marine  Corps. 

Longevity  paj/  of  enlisted  men. — "Existing 
laws  pro\iding  for  continuous  service  pay  are 
repealed  to  take  effect  July  1,  1920,  and  there- 
after enlisted  men  shall  receive  an  increase  of 
10  per  centum  of  their  base  pay  for  each  five 
years  of  service  in  the  Army,  or  ser\-ice  which 
by  existing  law  is  held  to  be  the  equivalent  of 
Army  service,  such  increase  not  to  exceed  40 


per  centum."     (Act  June  4,  1920,  sec.  4,  41 
Stat.,  761,  amending  act  of  June  3,  1916,  sec.  4 
39  Stat.,  167.) 

Enlistment  and  reenlistment  allowance. — "Ex- 
isting laws  pro^•iding  for  the  payment  of  three 
months'  jtay  to  certain  soldiers  upon  reenlist- 
ment are  hereby  repealed,  and  hereafter  an 
enlistment  allowance  equal  to  three  times  the 
monthly  pay  of  a  soldier  of  the  seventh  grade 
shall  be  ])aid  to  every  eoldier  who  enlists  or  re- 
enlists  for  a  period  of  three  years,  payment  of 
the  enlistment  allowance  for  original  enlistment 
to  be  deferred  until  honorable  discharge." 
(Act  Jime  4,  1920,  sec.  27,  41  Stat.,  775,  amend- 
ing act  of  June  3,  1916,  sec.  27,  39  Stat.,  185. 
See  27  Comp.  Dec,  10],  noted  below,  as  to  re- 
peal in  part  of  sec.  1612.) 

Specialist  ratings. — "Under  such  regulations 
as  the  Secretary  of  War  may  prescribe,  enlisted 
men  of  the  sixth  and  seventh  grades  may  be 
rated  as  specialists,  and  receive  extra  pay  there- 
for per  month,  as  follows:  First  class,  $25; 
second  class,  $20;  third  class,  $15;  fourth  class, 
$12;  fifth  class,  $8;  sixth  class,  $3.  Of  the  total 
authorized  nxmiber  of  enlisted  men  in  the 
sixth  and  seventh  grades,  those  rated  as  special- 
istfl  of  the  first  class  shall  not  exceed  0.7  per 
centum;  of  the  second  class,  1.4  per  centum; 
of  the  third  class,  1.9  per  centum;  of  the  fourth 
class,  4.7  per  centum;  of  the  fifth  class,  5  per 
centum;  of  the  sixth  class,  15.2  per  centum." 
(Act  June  4,  1920,  sec.  4,  41  Stat.,  761,  amend- 
ing act  Jime  3,  1916,  sec.  4,  39  Stat.,  167.) 

Extra  duty  pay.— "All  laws  and  parts  of  laws 
providing  for  extra  duty  pay  for  enlisted  men 
are  repealed,  to  take  effect  July  1,  1920." 
(Act  Jime  4,  1920,  sec.  4,  41  Stat.,  761,  amend- 
ing'act  Jime  3,  1916,  sec.  4,  39  Stat.,  167.) 

Enlistment  bounty. — "No  bounty  shall  be 
paid  to  induce  any  person  to  enlist  in  the 
military  ser\-ice  of  the  United  States."  (Act 
May  18,  1917,  sec.  3,  40  Stat.,  78.  See  above,  as 
to  "Enlistment  allowance." 

Additional  pay  for  marksmen,  etc. — "That 
hereafter  enlisted  men  now  qualified  or  here- 
after quaUfying  as  marksmen  shall  receive  $2 
per  month? as  sharpshooters,  $3  per  month;  as 
expert  riflemen,  $5  per  month;  as  second-class 
gunners,  $2  per  month;  as  first-class  gimners, 
$3  per  month;  as  expert  first-class  gunners, 
Field  Artillery,  $5  per  month;  as  gun  pointers, 
gun  commanders,  observ^ers  second  class,  chief 
planters,  and  chief  loaders,  $7  per  month;  as 
plotters,  observers  first  class,  casemate  elec- 
tricians, and  coxswains,  $9  per  month,  all  in 
addition  to  their  pay,  under  such  regulations  as 
the  Secretary  of  War  may  prescribe,  but  no 
man  shall  receive  at  the  same  time  additional 
pay  for  more  than  one  of  the  classifications 
named  in  this  section."  (Act  May  11,  1908,  35 
Stat.,  110,  as  amended  and  reenacted  by  act 
May  12,  1917,  40  Stat.,  45.  See  decisions  of  the 
Comptroller  of  the  Treasury,  noted  below,  as  to 
additional  pay  for  s]>ecial  quaUficatious,  de- 
tails, etc.,  in  the  ]\Iarine  Corps.) 

"Mess  sergeants  shall  receive  six  dollars  per 
month  in  addition  to  their  pay."  (Act  May  11, 
1908,  35  Stat.,  109.) 

Quarters  and  commutation  thereof. — "That  at 
all  posts  and  stations  where  there  are  pubUc 
quarters  belonging  to  the  United  States  officers 
may  be  furnished  with  quarters  in  kind  in  such 


942 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1612. 


public  quarters,  and  not  elsewhere,  by  the 
Quartermaster's  Department,  assigning  to  the 
officers  of  each  grade,  respectively,  such  num- 
ber of  rooms  as  is  stated  in  the  following  table, 
namely:  Second  lieutenants,  two  rooms;  first 
lieutenants,  three  rooms;  captains,  four  rooms; 
majors,  five  rooms;  lieutenant-colonels,  six 
rooms;  colonels,  seven  rooms;  brigadier- 
generals,  eight  rooms;  major-generals,  nine 
rooms;  lieutenant-general,  ten  rooms:  Provuled 
further,  That  at  places  where  there  are  no  public 
quarters  commutation  therefor  may  be  paid  by 
the  Pay  Department  to  the  officer  entitled  to 
the  same  at  a  rate  not  exceed  twelve  dollars 
per  month  per  room."  (Act  June  17,  1878,  Sec. 
9,  20  Stat.,  151,  as  amended  and  reenacted  by 
act  Mar.  2,  1907,  34  Stat.,  1168,  1169.) 

"That  hereafter,  at  places  where  there  are  no 
public  quarters  available,  commutation  for  the 
authorized  allowance  therefor  shall  be  paid  to 
commissioned  officers,  acting  dental  surgeons, 
veterinarians,  members  of  the  Nurse  Corps,  and 
pay  clerks  at  the  rate  of  $12  per  room  per  month; 
and,  when  specifically  authorized  by  the  Secre- 
tary of  War,  to  enlisted  men  at  the  rate  of  $15 
per  month,  or  in  lieu  thereof  he  may,  in  his 
discretion,  rent  quarters  for  the  use  of  said 
enlisted  men  when  so  on  duty."  (Act  Mar.  4, 
1915,  38  Stat.,  1069.) 

"Officers  temporarily  absent  on  duty  in  the 
field  shall  not  lose  their  right  to  quarters  or 
commutation  thereof  at  their  permanent  station 
while  so  temporarily  absent."  (Act  Feb.  27, 
1893,  27  Stat.,  480.  As  to  quarters  for  depend- 
ents, see  laws  noted  above,  under  ' '  Laws  relating 
specifically  to  Marine  Corps.") 

Heat  and  light.— "The  heat  and  light  actually 
necessary  for  the  authorized  allowance  of  quar- 
ters for  officers  and  enlisted  men  shall  be  fur- 
nished at  the  expense  of  the  United  States 
under  such  regulations  as  the  Secretary  of  War 
may  prescribe."  (Act  Mar.  2,  1907,  34  Stat., 
1167.) 

By  annual  appropriation  for  the  Marine 
Corps,  under  "Maintenance,  Quartermaster's 
Department,"  provision  is  made  "for  heat, 
light,  and  commutation  thereof  for  the  author- 
ized allowance  of  quarters  for  officers  and  en- 
listed men."     (Act  June  4,  1920,  41  Stat.,  831.) 

Sale  of  fuel  to  o^c^-rs.— "Hereafter  fuel  may 
be  furnished  to  commissioned  officers  on  the 
active  list  by  the  Quartermaster's  Department, 
for  the  actual  use  of  such  officers  only,  at  the 
rate  of  three  dollars  per  cord  for  standard  oak 
wood,  or  at  an  equivalent  rate  for  other  kinds  of 
fuel,  the  amount  so  furnished  to  each  to  be 
limited  to  the  officer's  actual  personal  necessi- 
ties as  certified  to  by  him."  (Act  June  12, 
1906,  34  Stat.,  250.) 

Traveling  expenses. — "That  for  all  sea  travel 
actual  expenses  only  shall  be  paid  to  officers 
*  *  *  when  traveling  on  duty  under  compe- 
tent orders,  with  or  without  troops,  and  the 
amount  so  paid  shall  not  include  any  shore 
expenses  at  port  of  embarkation  or  debarkation 
but  for  the  pmpose  of  determining  allowances 
for  all  travel  under  orders,  or  for  officers  and 
enlisted  men  on  discharge,  travel  in  the  Philip- 
pine Archipelago,  the  Hawaiian  Archipelago, 
the  home  waters  of  the  United  States,  and  be- 
tween the  United  States  and  Alaska  shall  not 
be  regarded  as  sea  travel  and  shall  be  paid  for 


at  the  rates  established  by  law  for  land  travel 
within  the  boundaries  of  the  United  States." 
(Act  June  12,  1906,  34  Stat.,  247.  As  to  travel 
with  troops,  see  note  above,  under  "Laws  relat- 
ing specifically  to  Marine  Corps";  and  see  deci- 
sions of  Comptroller  of  the  Treasury,  noted 
below.) 

"That  hereafter  officers  of  the  Army  and 
Navy  detailed  for  service  in  connection  with 
the  Lighthouse  Establishment  shall  be  paid 
their  actual  traveling  expenses  when  traveling 
under  orders  on  official  duty  to  and  from  points 
which  can  not  be  conveniently  reached  by  ves- 
sel or  railroad."  (Act  Feb.  26,  1907,  sec.  6,  34 
Stat.,  997.) 

"That  hereafter  under  such  regulations  and 
within  such  maximum  rates  as  may  be  pre- 
scribed by  the  Secretary  of  War  enlisted  men 
may  be  reimbursed  for  actual  expenses  of  travel, 
including  subsistence  and  lodging,  incurred 
while  traveling  under  competent  orders  and  not 
embraced  in  the  movement  of  troops,  or  they 
may  be  paid  a  fiat  per  diem  therefor  in  lieu  of 
such  reimbursement."  (Act  Apr.  20,  1918,  40 
Stat.,  534.) 

Travel  allowance  of  discharged  officers. — "That 
hereafter  when  an  officer  shall  be  discharged 
from  the  service,  except  by  way  of  punishment 
for  an  offense,  he  shall  receive  for  travel  allow- 
ances from  the  place  of  his  discharge  to  the 
place  of  his  residence  at  the  time  of  his  appoint- 
ment or  to  the  place  of  his  original  muster  into 
the  service  four  cents  per  mile  *  *  *  : 
Provided  further,  That  for  sea  travel  on  discharge 
actual  expenses  only  shall  be  paid  to  officers." 
(Act  Mar.  2,  1901,  31  Stat.,  903.) 

Prior  laws  repealed  by  section  1612. — 
The  act  of  June  30,  1834,  section  5  (embodied 
in  section  1612,  R.  S.),  repealed  the  joint  reso- 
lution of  May  25,  1832,  respecting  the  pay  and 
emolimients  of  the  Marine  Corps.  (U.  S.  v. 
Freeman,  3  How.,  556.) 

It  was  provided  by  section  one  of  the  act  of 
August  5,  1854  (now  embodied  in  section  1612, 
R.  S.),  "that  the  noncommissioned  officers, 
musicians,  and  privates  of  the  U.  S.  Marine 
Corps  shall  be  entitled  to  and  receive  the  same 
pay  and  bounty  for  reenlisting  as  are  now  or 
may  hereafter  be  allowed  to  the  noncommis- 
sioned officers,  musicians,  and  privates  in  the 
Infantry  of  the  Army."  It  would  seem  that 
this  provision  was  intended  to  supersede  all 
laws  then  in  force  relating  to  the  pay  of  en- 
listed men  of  the  Marine  Corps,  and  to  repeal, 
among  other  provisions,  that  portion  of  the  act 
of  March  2,  1837,  as  amended,  which  gave 
marines  one-fourth  additional  pay  for  serving 
beyond  their  enlistments.  But  the  former 
practice  of  allowing  marines  this  increase  was 
continued  as  though  the  law  did  not  apply  to 
cases  of  that  kind.  This  long-continued  con- 
struction of  the  law  should  not  be  overturned. 
(5  Comp.  Dec,  524;  see  sec.  1422,  R.  S.,  and 
note  thereto.) 

Section  1612  repealed  as  to  bounty  for 
reenlisting.— So  much  of  section  1612,  Re- 
vised Statutes,  as  provides  that  enlisted  men 
of  the  Marine  Corps  shall  be  entitled  to  receive 
the  same  bounty  for  reenlisting,  usually  desig- 
nated as  honorable  discharge  gratuity,  as  en- 
listed men  of  like  grades  in  the  Infantry  of  the 


943 


Sec.  1612. 


Ft.  2.  REVISED  STATUTES. 


The  Navy. 


Army,  is  repealed  and  superseded  by  section  7 
of  the  act  of  June  4,  J!»20  (U  ytat.,  '6m),  under 
the  provisions  of  which  cnListed  men  of  the 
Marine  Corps  reenlisting  on  or  after  June  4, 
1920,  for  four  years,  three  years,  or  two  years, 
are  entitled  to  receive  four  months,  three 
months,  or  two  months'  extra  pay,  resiiectively, 
at  the  rate  of  pay  they  were  receivinj^  at  the 
time  of  honoi-able  discharge.  (27  C'omp.  Dec, 
101 ; see  Army  law  noted  above,  under  "Enlist- 
ment and  reenlistment  allowance,"  and  Marine 
Corps  law  noted  above  under  "Bounty  for 
reenlisting."  See  also  sec.  1573,  R.  S.,  and 
note  thereto.) 

Section  1612  not  repealed  as  to  pay. — 
So  much  of  section  1612  as  provides  that  en- 
listed men  of  the  Marine  Corps  shall  be  entitled 
to  recei\e  the  same  pay  as  enlisted  men  of 
like  grades  in  the  Infantry  of  the  Army  is  still 
in  full  force  and  effect.  The  pay  of  enlisted 
men  of  the  Marine  Corps  is  accordingly  that 
prescribed  for  the  corresponding  grades  of  the 
Army  by  the  act  of  June  4,  1920  (41  Stat.,  761), 
plus  the  20  per  cent  increase  temporarily 
authorized  by  act  of  May  18,  1920  (41  Stat., 
601),  plus  longevity  increase  allowed  by  the 
Army  act  of  June  4,  1920  (41  Stat.,  761),  and 
additional  pay  for  specialists  as  prescribed  in 
that  act.  (27  Comp.  Dec,  101;  see  also,  27 
Comp.  Dec,  170.) 

General  effect  of  section  1612. — The 
pay  of  the  Marine  Corps  is  regulated  by  the 
laws  which  govern  the  pay  of  the  Army,  and 
as  changes  are  made  in  the  Army  pay  those 
changes  take  effect  simultaneously  in  the  pay 
roll  of  the  Marine  Corps.  This  is  the  legal  e  ffect  of 
section  1612.   (Reid  v.  U.  S.,  18  Ct.  Cls.,  625.) 

Section  1612  was  intended  to  operate  upon 
future  as  well  as  existing  legislation  on  pay, 
allowances,  and  bounty  in  the  Ajmy.  (19  Op. 
Atty.  Gen.,  616,  622.) 

Limitations  upon  operation  of  section 
1612. — The  pay  of  the  Marine  Corps  is  regu- 
lated by  the  law  which  governs  the  Army  pay, 
and  this  is  accomplished  automatically  by  the 
Revised  Statutes  (sec.  1612).  But  this  does 
not  extend  to  a  case  where  Congress  has  made 
a  specific  provision  for  the  pay  of  an  officer  or 
grade  of  officers  or  enlisted  men  in  the  Marine 
Corps.     (Bristow  v.  U.  S.,  47  Ct.  Cls.,  46.) 

Where  the  pay  of  a  new  grade  of  officers  is 
specifically  prescribed  by  statute,  the  general 
prox-ision  of  law  that  the  pay  of  the  Marine  Corps 
shall  be  the  same  as  the  pay  of  the  Army  can 
not  be  construed  so  that  the  specific  pay  shall 
be  either  increased  or  diminished  by  reason  of  a 
change  of  Anny  pay.  (Bristow  v.  U.  S.,  47 
Ct.  Cls.,  46.) 

The  fact  that  section  1612  provides  that 
enlisted  men  of  the  Marine  Corps  shall  receive 
the  same  pay,  grade  for  grade,  as  enlisted  men 
of  the  Army,  does  not  add  grades  to  the  Marine 
Corps  to  correspond  to  additional  grades  added 
to  the  Army,  especially  where  the  law  has 
made  specific  provision  for  the  different 
grades  in  the  Marine  Corps  and  the  numl^er  of 
men  to  be  assigned  to  each.  The  law  adding 
to  the  Armv  a  grade  of  enlisted  men  unknown 
to  the  Marine  Corps  does  not  make  a  similar 
grade  in  the  Marine  Corps.  (8  Comp.  Dec,  419.) 

The  Army  appropriation  act  of  April  27, 
1914  (38  Stat.,  353),  provided,  first,  that  no 


officer  or  enlisted  man  absent  from  duty  on 
account  of  disease  resulting  from  Ms  o^v^l 
intemperate  use  of  drugs  or  alcoholic  liquors 
or  other  misconduct  shall  receive  pay  for  such 
period  of  absence;  and  second,  that  an  enlist- 
ment shall  not  be  regarded  as  complete  until 
the  soldier  shall  ha\e  made  good  any  time  in 
excess  of  one  day  lost  by  unauthorized  absences. 
Held,  that  the  first  provision  is  one  affecting 
the  pay  to  be  received  by  officers  and  enlisted 
men  in  the  Army,  and  therefore  is  made 
applicable  to  the  Marine  Corps  by  section  1612, 
Revised  Statutes;  but  that  the  second  pro- 
vision is  one  affecting  the  term  of  enlistment  in 
the  Ai-my,  and  does  not  apply  to  the  Marine 
Corps,  as  the  term  of  enlistment  in  the  Marine 
Corps  is  governed  by  the  laws  and  regulations 
of  the  Navy  under  section  1621,  Revised 
Statutes.  (Comp.  Dec,  June  3,  1914,  160  S. 
and  A.  Memo.,  3250.  See  later  law,  above 
quoted,relatingspecifically  to  the  Marine  Corps.) 

Enlisted  men  of  the  Marine  Corps  are  not 
entitled  to  the  bounty  provided  by  act  of  July 
29,  1861,  section  5  (12  Stat.,  280),  for  the  men 
"enlisted  in  the  regular  forces."  (11  Op. 
Atty.  Gen.,  100,  Sept.  29,  1864.) 

The  act  of  June  16,  1890,  entitled  "An  Act 
to  prevent  desertions  from  the  Army,  and  for 
other  purposes,"  provided  in  section  one  that 
there  shall  be  retained  from  the  pay  of  each 
enlisted  man  of  the  Army  the  sum  of  $4  per 
month  for  the  fh'st  year  of  his  enlistment, 
which  shall  not  be  paid  to  him  until  his  dis- 
charge from  the  service  and  shall  be  forfeited 
unless  he  served  honestly  and  faithfully  to  the 
date  of  his  discharge ;  and  that  sums  so  retained 
shall  be  treated  as  deposits  upon  which  interest 
shall  be  paid.  This  section  of  the  act  was 
applicable  to  the  Marine  Corps  by  force  and 
effect  of  section  1612,  Revised  Statutes. 
Section  2  of  the  same  act  related  to  the  terms 
of  enlistment  in  the  Anny,  and  provided  that 
soldiers  discharged  prior  to  expiration  of  en- 
listment shall  not  be  entitled  to  the  allowances 
provided  in  section  1290,  Revised  Statutes. 
This  section  held  not  applicable  to  the  Marine 
Corps  [although  sec.  1290,  Revised  Statutes, 
relating  to  transportation  on  discharge,  did 
apply  to  the  Marine  Corps].  Section  3  of  said 
act,  relating  to  the  arrest  of  deserters  by  civil 
ofticers,  and  section  4,  authorizing  the  President 
to  permit  enlisted  men  to  purchase  their 
discharge  in  time  of  peace,  also  held  inapplic- 
able to  the  Marine  Corps.  (19  Op. Atty. Gen. ,616.) 

Sections  1305-1308,  Revised  Statutes,  which 
provide  for  the  deposit  with  any  Anny  pay- 
master by  any  enlisted  man  of  the  Army  of  his 
savings,  have  no  application  to  the  Marine 
Corps,  and  the  enlisted  men  of  that  corps  have 
not  the  right  or  privilege  of  making  such  de- 
posits with  a  paymaster  of  their  branch  of  the 
service.  Special  legislation  referring  only  to 
the  Army,  like  these  sections  of  the  Revised 
Statutes,  would  not  ordinarily  be  construed 
to  apply  to  the  Marine  Corps  any  more  than  to 
the  Nav^.  (25  Op.  Atty.  Gen.,  190.  See  later 
law  above  noted  relating  to  the  Marine  Corps.) 

Section  1216,  Revised  Statutes,  as  amended 
(act  Mar.  29,  1892,  27  Stat.,  12),  which  em- 
powers the  President  to  grant  a  certificate  of 
merit  to  an  enlisted  man  of  the  Army  who  has 


distinguished  himself  in  the  service  and  has 


944 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1612. 


been  recommended  therefor  by  the  command- 
ing officer  of  the  regiment  or  the  cliief  of  the 
corps  to  which  such  man  belongs,  applies  only 
to  enlisted  men  of  the  Army,  and  not  to  mem- 
bers of  the  Marine  Corps  who  have  been  simi- 
larly commended.  Section  1612  is  not  applica- 
ble to  the  special  reward  for  gallant  ser^ice,  so 
as  to  bring  the  Marine  Corps  ^^ithin  section 
1216.  There  is  a  corresponding  pro\ision  in 
section  1407,  Revised  Statutes,  which  was 
expressly  amended  to  include  enlisted  men  of 
the  Marine  Corps.  (24  Op.  Atty.  Gen.,  579. 
See  note  to  sec.  1407,  R.  S.} 

Navy  laws  held  appUcable  to  Marine 
Corps. — Officera  and  enlisted  men  of  the 
Marine  Corps  are  not  entitled  to  reimburse- 
ment for  loss  of  personal  effects  in  accordance 
with  laws  relating  to  the  Army;  but  are  entitled 
to  such  reimbursement  under  the  same  circum- 
stances as  if  thev  were  in  the  Navy  proper. 
(3  Comp.  Dec,  659;  Harllee  v.  U.  S.,  5l"Ct. 
Cls.,  342;  compare  4  Comp.  Dec,  26.  See 
note  to  sec.  290,  R.  S.,  and  see  act  of  Oct.  6, 
1917,  40  Stat.,  389.) 

Section  1563,  Re^^sed  Statutes,  authorizing 
advances  of  pay  to  persons  in  the  naval  ser\T.ce, 
has  been  invariably  construed  by  the  account- 
ing officers  as  applj-ing  to  Marine  officers. 
(Reid  V.  U.  S.,  18  Ct.  Cls.,  625.) 

Navy  laws  held  inapplicable  to  Marine 
Corps. — -Officers  of  the  Marine  Corps  have  not 
been  considered  as  "appointed  to  the  Navy," 
within  the  meaning  of  the  constructive  ser\dce 
pro\ision  in  the  Na^^  personnel  act  of  March  3, 
1899,  section  13  (30  Stat.,  1007\  pro\'iding  that 
"all  officers,  including  warrant  officers,  who 
have  been  or  may  be  appointed  to  the  Navy 
from  civil  life  shall,  on  the  date  of  appoint- 
ment, be  credited,  for  computing  their  pay, 
with  five  years'  service."     (23  Comp.  Dec,  508.) 

An  officer  of  the  Marine  Corps  attached  to  a 
seagoing  vessel  is  not  entitled  to  the  ration 
allowed  by  Revised  Statutes,  section  1578,  to 
a  naval  officer  so  attached.  Such  officer  of 
the  Marine  Corps  is  by  the  Re\'ised  Statutes 
(section  1612),  subjected  to  the  pro\isions  of 
Re\-ised  Statutes,  section  1269,  which  restricts 
allowances  to  officers  of  the  Army.  Commis- 
sioned officers  of  the  Army  are  not  allowed 
rations,  although  they  are  allowed  to  noncom- 
missioned officers  and  enlisted  men  by  section 
1293.  The  only  advantage  which  the  commis- 
sioned officer  has  in  this  respect  is  the  right 
to  purchase  rations  for  his  own  use  at  cost  when 


serving  in  the  field.     (R.  S.  1145).     (Reid  v. 
U.  S.,  18Ct.  Cls.,  625.) 

Section  1578,  authorizing  rations,  is  part  of 
chapter  8  of  Title  XV,  Re\'ised  Statutes, 
entitled  "Pay,  emoluments,  and  allowances.'' 
The  enactments  regulating  the  pay  of  officers 
of  the  Marine  Corps  are  contained  in  chapter  9 
of  the  same  title.  Congress,  by  placing  in 
another  chapter  the  enactments  relating  to  pay 
of  the  Marine  Corps,  indirectly  but  uiunis- 
takably  indicated  its  intent  to  confine  allow- 
ances made  by  chapter  8  to  the  naval  officers 
whose  pay  is  fixed  by  the  provisions  of  that 
chapter,  xdz,  those  enumerated  in  section 
1556,  Re\ised  Statutes.  While  section  1563, 
authorizing  advances  to  persons  in  the  naval 
Ber\'ice  employed  on  distant  stations,  is  part 
of  chapter  8,  and  has  nevertheless  been  con- 
strued as  applj-ing  to  Marine  officers,  the 
language  of  that  section,  which  does  not  speak 
of  "officers"  but  of  "persons  employed  in  the 
naval  service,"  is  different  fi-om  that  in  section 
1578,  and  it  would  appear  that  Congress  in- 
tended to  give  the  marines  the  benefit  of  the 
legislation  in  section  1563.  (Reid  v.  U.  S.,  18 
Ct.  Cls.,  625.) 

The  act  of  Februaiy  9,  1889  (25  Stat.,  657), 
to  pro\'ide  for  the  deposit  of  sa\ing8  by  "seamen 
of  the  United  States  Na\^,"  does  not  extend 
to  enlisted  men  of  the  Marine  Corps.  (19  Op. 
Atty.  Gen.,  616.  See  note  to  sec.  1621,  R.  S.; 
and  see  later  law  noted  above,  relating  to 
deposits  by  enlisted  men  of  the  Marine  Corps. ) 

Pay  grades,  enhsted  men. — See  Army 
law  of  June  4,  1920,  quoted  above  under  "Pay 
of  enlisted  men." 

By  Marine  Corps  orders  No.  18,  June  25, 
1920,  the  enlisted  grades  of  the  Marine  Corps 
are  gi'ouped  as  follows:  First  grade,  sergeants 
major  and  quartermaster  sergeants;  second 
grade,  first  sergeants,  gunnery  sergeants,  drum 
major;  third  grade,  none;  fourth  gi'ade,  ser- 
geants; fifth  grade,  corporals;  sixth  grade, 
privates  first  class;  seventh  grade,  driunmers, 
trumpetere,  and  privates.     (27  Comp.  Dec. ,  101.) 

The  following  table  shows  the  rates  of  pay  of 
the  above  mentioned  grades  as  fixed  bv  the 
Army  act  of  June  4,  1920  (41  Stat.,  761),'  plus 
the  20  per  cent  increase  temporarily  authorized 
by  act  of  May  18,  1920  (41  Stat.,  761),  and 
additional  pay  for  specialists  as  prescribed  in 
that  act,  as  published  by  the  Comptroller  of 
the  Treasury  (27  Comp.  Dec,  35  and  101;  see 
Army  laws  quoted  above): 


Grado. 

Base  pay. 

Add  20  per 

cent  increase 

as  of  first  5 

grades. 

Less  than 

five  years' 

service. 

After  five 

years' 
sen-ice. 

After  ten 

years' 

service. 

After  fifteen 

years' 

service. 

After  twenty 

years' 

service. 

1st     

$74.  00 
53.00 
45.00 
45.00 
37.00 
35.00 
30.00 

$14.  80 

10.60 

9.00 

9.00 

7.40 

e) 

$88.  80 
63.60 
54.00 
54.00 
44.40 
35.  00 
30.00 

$96.  20 
68.90 
58.  50 
58.  50 
48.10 
38.  50 
33.00 

$103.  60 
74.20 
63.00 
63.00 
51.80 
42.00 
36.00 

$111.  00 
79.50 
67.50 
67.50 
55.50 
45.50 
39.00 

1  $118.  40 

2d               

1  84.  80 

3d              

1  72.  00 

4th           

72.00 

5th           

59.  20 

6th           

49.00 

7th 

42.00 

I  The  enlisted  men  of  the  first,  second,  and  ttiird  grades  are  entitled  to  the  additional  ration  and  the  transportation 
pri\'ileges  under  sections  5  and  12  of  the  act  of  May  18,  1920. 

'  Enlisted  men  of  sixth  and  seventh  grades  may  be  rated  as  specialists  and  receive  extra  pay  therefor  per  month,  as 
follows:  First  class,  $25;  second  class,  $20;  third  class,  $15;  fourth  class,  $12;  fifth  class,  $8;  sixth  class,  $3. 

945 


Sec.  1612. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


Pay  not  reduced  by  act  June  4,  1920. — 
The  effect  of  the  saving  clause  in  section  4  of 
the  Army  reorganization  act  of  June  4,  1920 
(41  Stat.,  7()2i,  that  "nothing  in  this  section 
shall  operate  to  reduce  the  pay  which  any 
enlisted  man  is  now  receiving  during  his  cur- 
rent enlistment  and  while  he  holds  his  present 
grade,  "  is  to  grant  to  enlisted  men  of  the  Army 
and  Marine  Corps  the  right  to  continue  to 
receive  the  higher  rates  of  pay  they  were 
receiving  on  June  4,  1920,  under  earlier  laws 
then  in  force,  until  the  termination  or  exten- 
sion of  the  enlistment  in  which  serving  on  that 
date,  if  they  continue  in  the  same  grade  during 
such  period,  but  not  during  service  under  an 
extended  enlistment  which  may  be  extended 
on  or  after  June  4,  1920,  nor  after  a  change  in 
grade.     (27  Comp.  Dec,  31.) 

Additional  pay  as  specialists. — ^The  pro- 
vision of  section  4  of  the  Army  reorganization 
act  of  June  4,  1920  (41  Stat.,  761),  that  enlisted 
men  of  the  Army  of  the  sixth  and  seventh 
grades  may  be  rated  as  specialists  and  receive 
extra  pay  therefor  at  certain  specified  rates 
per  month,  is  applicable  to  the  Marine  Corps 
in  80  far  as  the  Secretary  of  War  may  apply 
said  provisions  of  law  to  the  infantry  of  the 
Army.     (27  Comp.  Dec,  31.) 

Extra-duty  pay.— On  and  after  July  1 ,  1920, 
the  payment  of  any  extra-duty  pay  to  enlisted 
men  of  the  Army  and  Marine  Corps  is  prohibited 
notwithstanding  provisions  in  Army  and  Navy 
appropriation  acts  authorizing  such  payments, 
section  4  of  the  Army  reorganization  act  of 
June  4,  1920  (41  St5,t.,  761),  having  repealed 
from  July  1,  1920,  all  laws  or  parts  of  laws  pro- 
viding for  extra-duty  pay.     (27  Comp.  Dec,  31.) 

The  term  ' '  extra-duty  "  is  obviously  a  relative 
one,  and  it  can  not  be  determined  that  an 
enlisted  man  was  performing  extra  duty  with- 
out a  complete  understanding  of  the  scope  of 
the  duties  which  he  might  properly  be  expected 
to  perform  in  accordance  with  hiis  enlistment 
without  recei^ang  extra  pay.  A  member  of 
the  hospital  corps  was  as  such  bound  to  per- 
foi-m,  %vithout  extra  pay,  any  of  the  duties 
which  pertain  to  that  service.  Duties  incident 
to  the  conduct  of  hospitals  as  efficient  insti- 
tutions, including  maintenance  of  telephone 
and  telegraph  offices,  when  necessary  in  the 
judgment  of  the  military  authorities,  were  part 
of  the  current  duties  of  enlisted  men  of  the 
hospital  corps  and  did  not  entitle  them  to  extra 
pay  any  more  than  any  other  necessary  activ- 
ities which  the  successful  administration  of 
the  hospital  might  demand.  (U.  S.  v.  Ross, 
239  U.  S.,  530.) 

From  an  early  date  provision  has  lieen  made 
for  the  pajTnent  of  enlisted  men  on  extra  duty 
at  "constant  labor  of  not  less  than  ten  days." 
It  may  be  assumed  that  section  1235  of  the 
Re\'ised  Statutes,  requiring  written  orders, 
was  not  intended  to  preclude  a  recovery  of 
extra-duty  pay  where  there  had  been  a  detail 
to  extra  duty  by  competent  authority,  although 
not  in  writing,  and  extra  duty  entitling  the 
enlisted  man  to  extra  pay  under  the  statute 
had  actually  been  performed.  However,  where 
an  enlisted  man  was  not  in  fact  assigned  on 
extra  duty,  there  being  no  such  detail  in 
accordance  with  regulations  or  the  statute  as 
there  should  have  been  if  he  was  considered 


to  be  on  extra  duty,  and  where  it  was  the  judg- 
ment of  the  War  Department  that  the  man  was 
not  on  extra  duly,  this  Departmental  judgment 
will  not  ])e  overruled  unless  there  is  a  clear 
abuse  of  the  necessarv  official  discretion. 
(U.  S.  V.  Ross,  239  U.  S.,  5,30. ) 

It  is  well  settled  that  the  mere  designation 
of  duty  as  "special  duty"  can  not  of  itself 
determine  the  character  of  the  duty  and  deprive 
the  man  of  his  rights  to  compensation  therefor 
if  in  fact  the  duty  was  '  'extra  duty . ' '  Whether 
it  was  special  duty  or  extra  duty  is  to  be  de- 
termined from  the  facts  themselves.  (Scheid 
r.  U.  S.,  52  Ct.  Cls.,  247.) 

The  re(}uireraent  of  the  statutes  that  details 
for  extra  duty  must  be  in  writing  was  not 
intended  to  preclude  a  recovery  of  extra-duty 
pay  to  which  a  man  might  be  entitled  under  the 
law  where  it  appeared  that  he  had  been  detailed 
to  such  extra  duty  by  competent  authority,  and 
that  the  extra  duty  had  been  actually  per- 
formed. A  provision  in  the  Marine  Corps 
"vSystem  of  Accountability"  could  not  in  any 
manner  serve  to  abridge  a  right  which  a  man 
might  have  under  the  law.  (Scheid  v.  U.  8., 
52  Ct.  Cls.,  247.) 

The  appropriation  in  the  Army  act  of  March 
3  1885  (23  Stat.,  359),  for  enlisted  men  on  extra 
duty,  was  limited  in  its  provisions  to  the 
Quartermaster  Corps,  but  the  other  language 
in  the  same  section,  amendatory  of  section 
1287,  Revised  Statutes,  had  no  relation  to  the 
Quartermaster  Corps  but  was  permanent  legis- 
lation applicable  to  the  rest  of  the  service  as 
well  as  to  that  corps.  (Scheid  v.  U.  S.,  52  Ct. 
Cls.,  247.) 

A  serrreant  in  the  Marine  Corps  performed  the 
duty  of  schoolmaster  at  the  Marine  Barracks 
for  15  years;  he  received,  in  addition  to  his  pay 
as  sergeant,  one  dollar  per  month  from  each 
apprentice  in  accordance  ^vith  an  agreement 
in  their  enlistment  papers  prescribed  by  the 
Navy  Department.  Held,  that  he  was  not 
entitled  to  extra-duty  pay  from  the  Govern- 
ment. Section  1287,  Revised  Statutes,  pro- 
viding extra-duty  pay  for  the  Army,  and  Army 
Regulations  issued  under  authority  of  the  ap- 
propriations for  extra-duty,  do  not  extend  to 
one  who  performs  the  duties  of  a  schoolmaster 
and  who  receives  extra  pay  from  his  pupils. 
fFugitt  V.  U.  S.,  28  Ct.  Cls.,  253.) 

Longevity  pay,  enlisted  men. — Section  4 
of  the  Armv  reorganization  act  of  June  4,  1920 
(41  Stat.,  761),  repeals,  from  July  ],  1920,  all 
preceding  legislation  providing  for  continuous- 
ser\'ice  pay  in  the  Army  and  Marine  Corps, 
except  in  so  far  as  the  saving  clause  in  said 
section  may  prevent  the  reduction  of  the  pay 
of  enlisted  men,  continuous-service  pay  being 
'•pay"  within  the  term  as  used  in  the  saving 
clause.    (27  Comp.  Dec,  31.) 

In  computing  the  longevity  pay  of  an  enlisted 
man  now  in  the  Marine  Corps,  or  of  any  person 
who  hereafter  enlists  or  reenlists  in  the  corps, 
under  the  act  of  June  4,  ]920  (41  Stat.,  761), 
all  prior  service  on  the  active  list  in  the  Army, 
Navy,  and  Marine  Corps,  whether  in  con- 
secutiv^e  or  dissevered  periods,  shall  be  counted. 
(27  Comp.  Dec,  170.) 

The  act  of  June  4,  1920  (41  Stat.,  761\  re- 
pealing all  laws  providing  for  continuous-service 


946 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1612. 


pay,  substituted  in  lieu  thereof  longevity  pay. 
(27  Comp.  Dec,  170.) 

Under  the  Army  reorganization  act  of  June  4, 
1920  (41  Stat.,  761),  the  service  which  by 
existing  law  is  held  to  be  the  equivalent  of 
Army  service  in  counting  length  of  service  for 
increase  of  pay  or  for  retirment  is  service  in 
the  Marine  Corps  and  service  in  the  Navv. 
(27  Comp.  Dec,  170,  citing  acts  Feb.  24,  1881, 
21  Stat.,  346;  Sept.  30,  1890,  26  Stat.,  504;  and 
June 22, 1906,  and  Mar.  2,  1907,  34  Stat.,  451  and 
1217.) 

The  provisions  of  sections  1281  and  1282, 
Revised  Statutes,  relating  to  increased  pay  for 
length  of  service  and  retention  of  pay  until 
expirations  of  enlistment,  form  part  of  the  legis- 
lation regulating  the  pay  of  enlisted  men  in 
the  Army  and  are  applicable  to  the  Marine 
Corps  by  force  of  section  1612.  (19  Op.  Atty. 
Gen.,  616,  623.) 

Reenlistment  pay;  honorable  discharge 
gratuity.— So  much  of  section  1612  as  provided 
that  euhsted  men  of  the  Marine  Corps  shall  be 
entitled  to  receive  the  same  bounty  for  reen- 
listing,  usually  designated  as  honorable  dis- 
charge gratuity,  as  enlisted  men  of  like  grades 
in  the  infantry  of  the  Army  was  repealed  and 
superseded  by  section  7  of  the  act  of  June  4, 
1920  (41  Stat.,  836).  (27  Comp.  Dec,  101;  see 
laws  quoted  above  relating  to  Marine  Corps.) 

The  provision  of  section  27  of  the  Army  re- 
organization act  of  June  4,  1920  (41  Stat.,  775), 
that  an  enlistment  allowance  equal  to  three 
times  the  monthly  pay  of  a  soldier  of  tJie 
seventh  grade  shall  be  paid  to  every  soldier 
who  reenlists  for  a  period  of  three  years  has  no 
application  to  the  Marine  Corps,  but  the  reen- 
listment pay,  otherwise  known  as  honorable 
discharge  gratuity,  of  members  of  the  Marine 
Corps,  depends  entirely  upon  laws  providing 
therefor  in  effect  prior  to  June  4,  1920,  and  the 
provisions  of  section  7  of  the  naval  appropria- 
tion act  of  June  4,  1920  (41  Stat.,  836).  (27 
Comp.  Dec,  31.) 

Under  the  provisions  of  the  naval  appropria- 
tion act  of  June  4,  1920,  section  7,  enlisted  men 
of  the  Marine  Corps  reenlisting  on  or  after  June 
4,  1920,  for  four  years,  three  years,  or  two  years 
are  entitled  to  receive  four  months,  three 
months,  or  two  months  extra  pay,  respectively, 
at  the  rate  of  pay  they  were  receiving  at  .the 
time  of  honorable  discharge.  (27  Comp.  Dec, 
101;  see  sec.  1573,  R.  S.,  and  note  thereto.) 

An  enlistment  in  the  Marine  Corps  after  an 
honorable  discharge  from  the  Army  or  Navy  is 
not  a  "reenlistment"  ^vithin  the  meaning  of 
section  7  of  the  act  of  June  4,  1920  (41  Stat., 
836);  the  term  "reenlistment"  signifies  an  en- 
try into  the  same  branch  of  the  service  from 
which  honorably  discharged.  (27  Comp.  Dec, 
170.) 

An  enlistment  in  the  Marine  Corps  after  an 
honorable  discharge  from  the  Army  is  a  "re- 
enlistment "  within  the  meaning  of  section  1284, 
Revised  Statutes,  pro\T.ding  longevity  pay  in 
the  Army,  made  applicable  to  the  Marine 
Corps  by  section  1612,  Revised  Statutes. 
Such  enlisted  man  is  entitled  to  the  same  ben- 
efits that  he  would  be  entitled  to  if  his  reenlist- 
ment had  been  in  the  Army.  (Walton  v.  U.  S., 
31  Ct.  Cls.,  196.) 


Bounties  on  reenlistment  in  the  Marine 
Corps  were,  by  virtue  of  section  1612  of  the  Re- 
vised Statutes,  based  upon  the  law  governing 
bounties  to  the  enlisted  men  of  the  Army  con- 
tained in  the  Army  appropriation  act  of  May 
11,  1908  (35  Stat.,  110).  (21  Comp.  Dec,  848.) 
The  bounty  payable  to  enlisted  men  of  the 
Marine  Corps  upon  reenlistment  should  be 
computed  on  all  items  of  pay,  as  distinguished 
from  allowance,  which  they  may  be  receiving 
at  the  time  of  discharge.  (21  Comp.  Dec, 
848.) 

Additional  pay  for  special  qualifica- 
tions, details,  etc. — There  is  no  law  that 
provides  for  cooks  in  the  Marine  Corps  or  for  an 
increase  of  pay  for  extra  duty  of  privates  of  that 
corps  detailed  in  service  as  cooks.  (8  Comp. 
Dec,  419.) 

Enlisted  men  of  the  Marine  Corps  regularly 
detailed  as  messmen,  whether  for  duty  afloat 
or  ashore,  may  be  paid  such  additional  com- 
pensation as  provided  for  by  regulations  ap- 
proved and  promulgated  by  the  Secretary  of 
the  Navy;  Congress  having  appropriated  for 
such  additional  compensation  under  the  cap- 
tion, "Pay,  Marine  Corps,"  but  not  having 
fixed  the  amount.  These  appropriations  do 
not  create  the  grade  of  messman  in  the  Marine 
Corps,  but  do  pro\dde  for  additional  pay  to 
men  regularly  detailed  to  perform  the  duties 
of  messmen.  If  additional  pay  were  provided 
for  like  service  in  the  Army,  to  which  it  would 
be  assimilated,  'the  additional  pay  would  be 
fixed  by  law  and  would  govern  without  regard 
to  the  President's  order;  but  there  is  no  grade 
in  the  Army  to  which  the  additional  compen- 
sation of  an  enlisted  man  in  the  Marine  Corps 
regularly  detailed  to  perform  the  duties  of  mess- 
man  can  be  assimilated .  (13  Comp.  Dec,  13C.) 
Under  annual  appropriation  acts,  and  Exec- 
utive Order  of  September  18,  1906,  relating  to 
additional  pay  for  enlisted  men  of  the  Marine 
Corps  regularly  detailed  as  messmen,  held  that 
where  a  man  is  properly  detailed  as  messman 
for  a  month  or  more,  as  prescribed  by  said 
order,  he  is  entitled  to  the  additional  pay  even 
though,  by  reason  of  illness  or  other  cause,  he 
is  lawfully  absent  from  duty  for  a  part  of  the 
month.     (13  Comp.  Dec,  574:) 

Enlisted  men  of  the  Marine  Corps  who  have 
qualified  as  expert  riflemen  are  entitled  to  the 
additional  monthly  pay  allowed  enlisted  men 
of  the  infantry  of  the  Army,  which  extra  pay 
shall  cease  at  the  close  of  the  first  subsequent 
target  year  in  which  such  riflemen  shall  fail  to 
qualify.  (Comp.  Dec,  Sept.  26,  1905,  55  S. 
and  A.  Memo.,  7;  modifying  11  Comp.  Dec, 
788.) 

The  act  of  May  11,  1908  (35  Stat.,  110),  pro- 
viding "that  hereafter  enlisted  men  now  quali- 
fied or  hereafter  qualifying  as  marksmen  shall 
receive  two  dollars  per  month;  as  sharpshoot- 
ers, three  dollars  per  month;  as  expert  riflemen, 
live  dollars  per  month;  *  *  *  all  in  addi- 
tion to  their  pay,  under  such  regulations  as  the 
Secretary  of  War  may  prescribe,"  was  made 
applicable  to  the  Marine  Corps  bv  section  1612, 
Revised  Statutes.  (21  Comp.  Dec,  123  and 
848.) 

The  extra  pay  provided  for  gun  pointers  and 
gim  captains  is  extra  pay  for  special  service. 


947 


Sec.  1612. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


and  pa\able  only  when  under  detail  for  the 

specialk-rvice.     (21  Comp.  Dec,  811,  814.) 

The  enlisted  men  of  the  Marine  Corps  derive 
their  right  to  additional  coni])ensation  or  allow- 
ante  as  messnien,  sjun  captains,  and  »un  point- 
ers from  the  annual  ai)propriation  arts  and  the 
regulations  made  in  pureuance  thereof.  (21 
("omp.  i)ec.,  811,  812;  citing  13  Comp.  Dec, 
136.) 

Under  the  Navy  Regulations  of  1913,  article 
4442  ( 1 1 ),  "all  enlisted  men  of  the  United  States 
Marine  Corps  regularly  detailed  as  gun  pointers. 
Navy  mail  clerks,  gun  captains,  messmen,  or 
signalmen,  or  holding  good  conduct  medals, 
pins,  or  bars,  shall  receive  the  same  extra  com- 
pensation in  addition  to  their  monthly  pay  as 
is  now  or  may  hereafter  be  allowed  enlisted 
men  of  the  Navy."     (See  21  Comp.  Dec,  812.) 

Retained  pay. — Section  1281,  KoAised  Stat- 
utes, and  amendments  thereto,  authorizing  cer- 
tain increases  in  the  pay  of  enlisted  men  during 
their  first  enlistment  in  the  Army,  such  in- 
creased pay  to  be  "  considered  as  retained  pay  " 
and  not  to  be  paid  until  discharge,  were  held 
applicable  to  the  Marine  Corps.  (See  19  Op. 
Attv.  Gen.,  616,  623;  U.  S.  v.  Kingsley,  138 
U.  S.,  87,  24  Ct.  Cls.,  219.)  Said  section  of  the 
Re\'ised  Statutes  was  expressly  repealed  by  act 
of  May  11,  1908  (35  Stat.,  110.) 

By  act  of  Jime  4,  1920,  section  27,  relating  to 
the  Army  (quoted  above  imder  "Enlistment 
and  reenhstment  allowance"),  provision  was 
made  for  an  allowance  to  soldiers  dinging  their 
first  enlistment,  pajTnent  thereof  "to  be  de- 
ferred until  honorable  discharge."  (See  deci- 
sions noted  above  under  "  Reenhstment  pay; 
honorable  discharge  gi-atuity.") 

Increased  pay  for  sea  duty  and  foreign 
shore  service. — In  computing  the  20  per  cent 
additional  pay  for  foreign  sei-vice  of  enlisted 
men  of  the  Marine  Corps,  the  additional 
monthly  pay  allowed  as  expert  riflemen  should 
be  included.  (Comp.  Dec,  Sept,  26,  1905,  55 
S.  and  A.  Memo.,  67.) 

Enlisted  men  of  the  Marine  Corps  are  not 
entitled  to  have  the  additional  compensation 
authorized  for  marksmanship  qualifications 
included  in  their  pay  proper  upon  which  is  com- 
puted the  20  per  cent  increase  for  sea  duty;  but 
are  entitled  to  have  such  increase  computed  on 
pay  for  good  conduct  medals.  (21  Comp. 
Dec,  848.J 

Enlisted  men  of  the  Marine  Corps  on  sea  duty 
are  not  entitled  to  have  the  additional  compen- 
sation of  gun  pointers  and  gun  captains  included 
in  their  "pay  proper"  upon  which  is  computed 
the  20  per  cent  increase  of  pay  for  foreign  shore 
duty.     (21  Comp.  Dec,  811.) 

Officers  of  the  Marine  Corps  are  not  entitled 
to  ha\e  the  additional  compensation  as  aid,  or 
the  allowance  for  mounts,  included  in  their  pay 
proper  upon  which  is  computed  the  ten  per  cent 
increase  for  sea  duty.     (21  Comp.  Dec,  848.) 

An  officer  of  the  IVIarine  Corps  was  entitled, 
under  section  1612,  Re\'ised  Statutes,  and  the 
act  of  May  11,  1908,  to  the  increased  pay  for 
8er\dce  bejond  seas  allowed  by  the  act  of  June 
30,  1902,  for  service  in  Porto  Rico,  notwith- 
standing the  provisions  in  the  appropriation 
acts  of  1906  and  1907,  excepting  Hawaii  and 
Porto  Rico  from  the  operation  of  the  said  act  of 
1902.    Those  exceptions  were  temporary,  and 


did  not  have  a  general  and  permanent  applica- 
tion to  all  future  appropriations.  The  Ann  y  act 
of  May  11,  1908,  having  provided  that  "increase 
of  pay  for  service  beyond  the  limits  of  the 
states  comprising  the  Union  and  the  territories 
of  the  United  States  contiguous  thereto  shall  be 
as  now  provided  by  law,"  the  law  contained 
in  the  act  of  1902,  and  not  the  exception  con- 
tained in  the  appropriations  of  1906  and  1907, 
was  thereby  continued  in  effect.  (U.  S.  v. 
Vulte,  233  tJ.  S.,  509;  but  see  later  act  of  Aug. 
24,  1912,  quoted  above  under  Army  laws  re- 
lating to  foreign  shore  ser\-ice.) 

Pay  and  allowances  defined.— See  cases 
noted  above,  under  "Increased  pay  for  sea  duty 
and  foreign  shore  ser\dce";  see  also  notes  to 
sections  1558  and  1615,  Revised  Statutes. 

WTiether  extra  pay  for  special  assignments 
(gun  pointers  and  gun  captains)  is  an  "allow- 
ance" or  "in  the  nature  of  an  allowance,"  or 
"pay"  in  the  broad  meaning  of  that  term,  it 
is  not  "pay  proper  "  within  the  meaning  of  the 
act  of  June  30,  1902  (32  Stat.,  512),  relating  to 
foreign  shore  service  pay.  (21  Comp.  Dec, 
811.) 

Mileage  has  been  held  both  by  the  courts  and 
the  accounting  officers  to  be  an  allowance. 
(13  Comp.  Dec,  333.) 

Extra  duty  pay  is  not  "pay"  within  the 
meaning  of  the  saving  clause  contained  in  the 
act  of  June  4,  1920,  section  4  (41  Stat.,  761), 
that  "nothing  in  this  section  shall  operate  to 
reduce  the  pay  which  any  enlisted  man  is  now 
receiving"  etc.  (27  Comp.  Dec,  31,  36. 
Compare  27  Comp.  Dec,  31,  holding  that  act  of 
June  4,  1920,  sec.  4,  41  Stat.,  761,  repealing 
Army  laws  as  to  extra  duty  pay,  applied  to 
Marine  Corps.) 

Continuous  service  pay  is  "pay"  within  the 
teiTtt  as  used  in  the  sa^dng  clause  of  the  Army 
act  approved  June  4,  1920,  section  4  (41  Stat., 
761).     (27  Comp.  Dec,  31.) 

The  Ai-my  act  of  March  3,  1885  (23  Stat., 
350),  providing  for  reimbursement  of  officers 
and  enlisted  men  of  the  militaiy  ser^nce  for 
private  property  lost  in  the  service,  does  not 
pro\dde  an  "allowance  "  to  officers  of  the  Army 
which,  by  virtue  of  section  1612,  Revised 
Statues,  can  be  available  to  officers  of  the  Ma- 
rine Corps.     (Harllee  v.  U.  S.,  51  Ct.  Cls.,  342.) 

The  term  "allowances"  has  acquired  an  ex- 
tended meaning,  but  it  has  its  limitations.  It 
has  been  held  that  allowance  does  not  include 
commutation  for  fuel  and  quarters,  and  is  lim- 
ited to  compensation  for  services  other  than 
pay  (citing  Landers  v.  U.  S.,  30  Ct.  Cls.,  311; 
Sherburne's  Case,  16  Ct.  Cls.,  491;  McLean  v. 
U.  S.,  226  U.  S.,  374,  382,  45  Ct.  Cls.,  95).  Pay 
and  allowances  as  used  in  the  statutes  relate  to 
compensation  for  serAdce.  The  allowance  may 
at  times  take  the  form  of  reimbursement,  but 
it  is  reimbursement  for  something  expended  in 
ser\-ice  and  the  amount  of  allowance  is  fixed  or 
regulated  by  statute  or  regulation  which  has 
the  effect  of  a  statute.  The  term  can  not  be 
applied  to  the  case  of  a  soldier  claiming  under 
the  act  of  1885  for  losses  sustained  for  which, 
under  that  act,  he  may  recover.  The  act  is  one 
of  indemnity;  it  does  not  purport  to  pay  for 
service.     (Harllee  v.  U.  S.,  51  Ct.  Cls.,  342.) 

See  note  below  xmder  "Mileage  and  trans- 
portation." 


948 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1612. 


Mileage  and  transportation. — -Officers  of 
the  Marine  Corps  are  entitled,  under  section 
1612,  Re\'ised  Statutes,  to  the  same  allowance 
for  sea  travel  with  troops  as  is  provided  for  offi- 
cers of  the  Army  by  act  of  June  12,  1906  (34 
Stat.,  246,  247),  and  such  allowance  is  payable 
fi'om  appropriations  for  pay  and  allowances  of 
officers  of  the  Marine  Corps.  (13  Comp.  Dec, 
332.) 

The  act  of  June  10,  1896  (noted  above,  under 
laws  relating  to  the  Marine  Corps),  which  pro- 
vides that  officers  of  the  Marine  Corps  traveling 
under  orders,  without  troops,  shall  be  allowed 
the  same  mileage  as  was  then  allowed  officers  of 
the  Navy  traveUng  without  troops,  applies  both 
to  travel  within  the  United  States  and  to  travel 
abroad;  and  an  officer  of  the  Marine  Corps  so 
traveling  is  entitled  to  mileage  at  the  rate  of 
eight  cents  per  mile  for  travel  in  the  United 
States,  and  to  actual  and  reasonable  expenses 
only  for  travel  abroad.  (8  Comp.  Dec,  123; 
see  note  to  sec  1566,  R.  S.) 

The  act  of  June  10, 1896,  is  applicable  only  to 
officers  of  the  Marine  Corps  traveling  without 
troops;  and  officers  of  the  Marine  Corps  travel- 
ing with  troops  are  governed  by  the  provisions 
of  section  1612  and  the  Army  act  of  June  12, 
1906  (34  Stat.,  246,  247).  In  other  words,  an 
officer  of  the  Marine  Corps  traveling  under  or- 
ders without  troops  is  entitled  to  the  same 
mileage  as  was  allowed  an  officer  of  the  Navy 
on  June  10,  1896;  but  when  traveling  under 
orders  with  troops  he  is  entitled  to  the  same 
travel  allowance  as  an  officer  of  the  Army  trav- 
eling with  troops.  (Comp.  Dec,  Mar.  7,  1907, 
73  S.  and  A.  Memo.,  248;  13  Comp.  Dec,  333.) 

There  is  no  law  providing  for  traveling  ex- 
penses for  officers  of  the  Army  or  Marine  Corps 
traveling  with  troops  within  the  United  States. 
(Comp.  Dec,  Mar.  7, 1907,  73  S.  and  A.  Memo., 
248.) 

The  expenses  necessarily  growing  out  of  the 
transportation  and  subsistence  of  the  marines 
detailed  for  the  Navy  Department  exhibit  at 
the  World's  Columbian  Exposition  may  be 
paid  from  the  fund  provided  for  the  IMarine 
Corps  and  its  subsistence.  (20  Op.  Atty.  Gen., 
577.) 

The  provisions  of  section  1290,  Revised 
Statutes,  relating  to  allowance  for  transporta- 
tion from  the  place  of  discharge  to  the  place  of 
enlistment,  form  part  of  the  legislation  regulat- 
ing the  pay  of  enlisted  men  in  the  AiTQy,  and 
are  applicable  to  the  Marine  Corps  by  force  of 
section  1612,  Revised  Statutes.  (19  Op.  Atty. 
Gen.,  616,  623.) 

Revised  Statutes,  section  1290,  as  amended 
by  act  of  Fel>ruary  27,  1877  (19  Stat.,  240,  244), 
provided  that  "when  a  soldier  is  discharged 
from  the  service,  except  by  way  of  punishment 
for  an  offense,  he  shall  be  allowed  transporta- 
tion and  subsistence  from  the  place  of  his  dis- 
charge to  the  place  of  his  enlistment,  enroU- 
nent,  or  original  muster  into  the  service.  The 
Grovemment  may  furnish  the  same  in  kind, 
but  in  case  it  shall  not  do  so,  he  shall  be  al- 
lowed travel  pay  and  commutation  of  subsis- 
tence, for  such  time  as  may  be  sufficient  for 
him  to  travel  from  the  place  of  discharge  to  the 
place  of  his  enlistment,  enrollment,  or  original 
muster  into  the  service,  computed  at  the  rate 
of  one  day  for  every  twenty  miles. "     Held, 


that  one  who  originally  enlisted  at  Washington, 
and  was  discharged  at  Mare  Island,  California, 
receiving  travel  pay  and  commutation  of  sub- 
sistence from  Mare  Island  to  Washington,  but 
did  not  return  to  Washington,  reenlisting  at 
Mare  Island  as  a  private;  and  in  the  course  of 
his  service  was  returned  to  Washington,  where 
he  was  discharged  at  his  own  request,  was  not 
entitled  to  his  commutation  of  travel  and  sub- 
sistence to  the  place  of  his  second  enlistment, 
as  his  service  was  practically  a  continuous  one, 
and  his  second  discharge  occurred  at  the  place 
of  his  original  enlistment.  (U.  S.  v.  Thornton, 
160  U.  S.,  654.) 

A  private  in  the  Marine  Corps,  discharged 
from  the  service  as  a  person  of  bad  character 
and  unfit  for  service,  by  order  of  the  Secretary 
of  the  Navy  through  the  commandant  of  the 
corps,  without  court-martial  or  other  competent 
military  proceeding,  does  not  forfeit  trans- 
portation and  subsistence  from  the  place  of  his 
discharge  to  the  place  of  his  enlistment,  enroll- 
ment, or  original  muster  into  the  service,  under 
the  provisions  of  section  1290,  Revised  Statutes, 
which  makes  such  allowance  in  all  cases  other 
than  discharge  from  the  service  "by  way  of 
punishment  for  an  offense. "  That  section  con- 
templates a  discharge  as  a  punishment,  inflicted 
by  the  judgment  of  a  coiut- martial  or  other 
nulitaiy  authority.  \Miile  unfitness  for  service 
and  general  bad  character  may  justify  the 
proper  authorities  in  ordering  the  discharge 
of  the  soldier  as  a  worthless  member  of  the  serv- 
ice, such  a  discharge  can  not  be  considered  as 
"a  punishment  for  an  offense.  "  The  question 
whether  such  punishment  must  necessarily  be 
inflicted  by  the  judgment  of  a  court-martial, 
not  presented  by  the  record  in  this  case  and  no 
opinion  expressed  on  it.  (U.  S.  v.  Kingsley, 
138  U.  S.,  87;  24  Ct.  Cls.  219.) 

The  effect  of  section  6  of  the  naval  appropria- 
tion act  of  June  4,  1920  (41  Stat.,  836),  is  to 
extend  to  enlisted  or  enrolled  men  of  the  Navy 
and  Marine  Corps,  having  war  service,  who, 
since  November  11,  1918,  have  reenlisted  in 
the  Navy  or  Marine  Corps,  or  who  have  ex- 
tended their  enlistments  either  before  or  after 
that  date,  or  may  hereafter  do  so,  the  right  to 
receive  the  war  service  payment  of  $60  pro- 
vided by  the  act  of  February  24,  1919  (40  Stat., 
1151),  and  the  travel  allowance  on  discharge, 
under  the  act  of  February  28,  1919  (40  Stat., 
1203);  such  persons  having  been  theretofore 
excluded  from  the  benefits  of  said  acts.  (27 
Comp.  Dec,  31.) 

Longevity  pay,  oflS.cers. — See  section  1600, 
Revised  Statutes,  and  note  thereto. 

The  words  "cmrent  yearly  pay,"  as  used  in 
section  1262,  Revised  Statutes,  allowing  in- 
creased pay  for  periods  of  five  years'  service, 
mean  the  original  salary  of  the  officer's  rank 
plus  any  additions  previously  earned  for 
length  of  service;  and  the  ten  per  cent  increase 
for  periods  of  five  years'  service  should  accord- 
ingly be  computed  upon  the  regular  salary  of 
the  officer's  rank  plus  previous  increases  for 
length  of  service.  (U.  S.  v.  Tyler,  105  U.  S., 
244.) 

The  act  of  June  30,  1882  (22  Stat.,  118), 
directing  that  the  longevity  increase  provided 
for  in  section  1262,  Revised  Statutes,  should  be 
"computed  on  the  yearly  pay  of  the  gi'ade," 


949 


Sec.  1612. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


was  passed  for  the  express  purpose  of  com- 
uianuiug  a  method  of  computation  which 
would  render  inapplicable  the  construction 
adopted  by  the  Supreme  Court  in  the  Tyler 
case  (^ above  noted ).  Accordingly,  a  subsequent 
enactment,  allo\\'ing  ofiicers  of  the  Navy  ten 
per  cent  increase  of  their  "current  yearly 
pay"  for  each  term  of  five  years'  service, 
should  be  construed  as  requiring  that  such 
increase  be  computed  on  the  yearly  pay  of 
their  grade,  in  accordance  with  the  rule  pre- 
scribed by  the  act  of  1882,  and  not  upon  their 
base  pay  plus  previous  longevity  increases,  in 
accordance  with  the  rule  laid  down  in  the 
Tvler  case.  (Plummer  ;;.  U,  S.,  224  U.  S.,  137, 
144.) 

As  to  allowance  of  constructive  ser^dce  in 
computing  length  of  service  for  longevity 
increases  in  the  Marine  Corps,  see  note  above, 
under  ''Na\^  laws  held  inapplicable  to  Marine 
Corps;"  and  note  below,  iinder  "Pay  clerks." 

Quarters. — Commutation  for  quarters,  fuel, 
and  light  not  furnished  to  an  officer  or  enlisted 
man  can  not  be  paid  unless  authorized  by  some 
statute  or  regulation;  that  is,  the  right  to 
commutation  does  not  aiise  automatically 
but  must  be  based  upon  some  specific  provision 
of  laM'.    /Smith  v.  U.  S.,  47  Ct.  Cls.,  313.) 

Commissioned  officers  of  the  Army  on  duty 
where  quarters  can  not  be  furnished  are  entitled 
to  commutation  by  \'irtue  of  the  Army  Regu- 
lations; but  there  is  no  such  pro\'ision  for 
enlisted  men.     (Smith  v.  U.  S.,  47  Ct.  Cls.,  313.) 

In  the  absence  of  express  appropriation 
therefor,  the  hiring  of  quarters  for  marines  on 
duty  in  Washington  was  forbidden  bv  act  of 
June  22,  1874  (18  Stat.,  144),  which  provided 
that  "hereafter  no  contract  shall  be  made  for 
the  rent  of  any  building,  or  part  of  any  building, 
in  Washington,  not  now  in  use  by  the  Govern- 
ment, to  be  used  for  the  purposes  of  the  Govern- 
ment until  an  appropriation  therefor  shall  have 
been  made  in  terms  by  Congress."  (Smith  v. 
U.  S.,47Ct.Cl8.,313.} 

See  note  under  section  1613,  Revised  Statutes. 

Pay  clerks. — By  virtue  of  the  act  of  June  24, 
1910  (36  Stat.,  625),  clerks  to  assistant  pay- 
masters in  the  Marine  Corps  are  entitled  to  the 
same  pav  and  allowances  provided  by  the  act 
of  June's,  1916,  section  9  (39  Stat.,  170),  for 
paj-masters'  clerks  in  the  Army;  that  is,  to  the 
pay  and  allowances  of  a  second  lieutenant  in 
the  Army.     (23  Comp.  Dec,  508.) 

Clerks  to  assistant  paj-masters  in  the  Marine 
Corps  are  not  entitled  to  credit  for  constructive 
8er\'ice  in  computing  their  pav  under  the  act  of 
June  3,  1916,  section  9  (39  Stat.,  170),  which 
entitled  them  to  the  pay  and  allowances  of  a 
second  lieutenant  by  virtue  of  the  act  of  June 
24,  1910  (36  Stat.,  625),  givdng  them  the  same 
pay  and  allowances  as  Army  pa\nnasters' 
clerks;  although  they  were  previously  en- 
titled to  constructive  service  in  computing  their 
pay  under  the  act  of  March  3,1911  (36  Stat., 
1044\  giving  them  the  pay  and  allowances  of 
warrant  officers  in  the  Navy,  by  virtue  of  the 
said  act  of  June  24,  1910.  Warrant  officers  in 
the  Navy  appointed  from  civil  life  were  en- 
titled to  constructive  service,  but  second 
lieutenants  in  the  Army  appointed  from  ci%'il 
life  were  not.    (23  Comp.  Dec,  508.    See  note 


above,  under  "Navy  laws  held  inapplicable  to 
Marine  Corps."  i 

Gunnery  sergeants. — ^The  grade  of  "gun- 
nery sergeant"  was  first  established  in  the 
Marine  Corps  by  the  Navy  personnel  act  of 
March  3,  1899,  section  23  (30  Stat.,  1009)  and 
the  pay  was  specifically  fixed  by  thg  same 
statute  at  §35  per  month,  while  other  sergeants 
received  only  $25.  Subciuently  the  pay  of 
sergeants  in  the  Anny  was  advanced  by  act  of 
May  11,  1908  (35  Stat.,  106,  109),  to  $45  per 
month.  There  was  no  statute  specifically 
changing  the  pay  of  gunneiy  sergeants.  Held, 
that  gunnery  sergeants  of  the  Marine  ( 'orps  did 
not  become  entitled  to  $45  per  month  under  the 
Army  appropriation  act.  (Bristow  v.  U.  S., 
47  Ct.  Cls.,  46.  But  see  act  of  Aug.  22,  1912,  as 
to  pay  of  gunnery  sergeants,  noted  above  under 
laws  relating  to  the  Marine  Corps,  i 

Forfeiture  of  pay. — Neither  the  pay,  lodg- 
ing, nor  clothing  of  enlisted  maiines  taken  by 
the  civil  authorities  for  violation  of  law  can  be 
withheld  during  their  confinement  and  absence 
from  their  military  stations.  The  existing  law 
(act  July  11,  1798,  sec.  2),  authorizes  the 
President  to  fix  the  pay  and  subsistence  of  the 
noncommissioned  officers,  privates,  and  musi- 
cians of  the  Marine  Corps.  Under  this  author- 
ity it  would  be  competent  for  the  President  not 
merely  to  determine  the  quantum  of  pay  but  to 
prescribe  the  conditions  on  which  it  shall  be 
received.  In  the  absence  of  such  a  regulation 
by  him,  or  under  his  authority,  recourse  must  ])e 
had  to  the  implied  contract  entered  into  on  the 
enlistment;  this  is  a  stipulation  for  pajTnent, 
subsistence,  and  clothing,  in  consideration  of 
8er\'ices  to  be  performed.  A  willful  failure  to 
perform  this  ser\ace  would  seem  to  exempt  the 
Government  from  the  oliligation  wliich  would 
have  resulted  from  its  performance.  But  it 
does  not  follow  that  an  enlisted  marine,  because 
taken  by  the  civil  authorities  for  \'iolation  of 
the  laws,  has  \dolated  them;  he  is  presumed  to 
be  innocent  until  proved  to  be  guilty-  In 
cases  where  conviction  takes  place  and  is  fol- 
lowed by  a  sentence  which  incapacitates  him 
from  the  fulfillment  of  his  duty  as  a  marine, 
from  the  time  of  such  couAiction  his  pay  might 
perhaps,  properly  be  withheld;  but  in  such  a 
case  it  would  be  better  for  the  Government  to 
discharge  the  convicted  marine  from  the  service 
and  thus  terminate  his  claim  for  compensation. 
(2  Op.  Atty.  Gen.,  396.  See  cases  noted  under 
sections  1556  and  1569,  Re\ised  Statutes.) 

A  private  in  the  ^larine  Corps  discharged 
from  the  service  as  a  person  of  bad  character 
and  unfit  for  service,  by  order  of  the  Secretary 
of  the  Navy  through  the  commandant  of  the 
corps,  although  without  court-martial  or  other 
competent  military  proceeding,  forfeits  thereby 
his  retained  pay  "under  the  provisions  of  Re- 
vised Statutes  1281,  which  provides  that  such 
retained  pay  of  an  enlisted  man  "shall  be  for- 
feited unless  he  serves  honestly  and  faithfully 
to  the  date  of  discharge."  (U.  S.  v.  Kingsley, 
138  U.  S,  87;  see  also  note  above,  under  "Mile- 
age and  transportation.") 

"Pay  of  two  grades. — WTiere  a  captain  in 
the  Marine  Corps  acts  as  brevet  lieutenant- 
colonel  and  is  paid  as  such,  he  can  not  during 
the  same  period  receive  either  the  pay  or  al- 


960 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1613. 


lowances  attached  to  the  duties  of  captain. 
(U.  S.  V.  Freeman,  25  Fed.  Cas.  No.  15,163.) 

Deposits  of  savings. — The  act  of  February 
9,  1889  (25  Stat.,  657),  proAading  for  the  deposit 
of  savings  by  "seamen  of  the  United  States 
Navy,"  does  not  extend  to  enlisted  men  of  the 
Marine  Corps.     (19  Op.  Atty.  Gen.,  616.) 

Sections  1305-1308,  Re\dsed  Statutes,  which 
provide  for  the  deposit  ^rith  any  Army  pay- 
master by  any  enUsted  man  of  his  savings,  have 
no  ai)plication  to  the  Marine  Corps,  and  the  en- 
listed men  of  that  corps  have  not  the  right  or 
privilege  of  making  such  deposits  with  a  pay- 
master of  their  branch  of  the  service.  (25  Op. 
Atty.  Gen.,  190.) 

If  the  act  of  1889,  for  the  benefit  of  enlisted 
men  and  petty  officers  of  the  Navy,  could  not 
properly  be  construed  to  apply  to  the  Marine 
Corps,  which  is  primarily  a  component  part  of 
the  Navy,  sections  1305-1308  of  the  Re-vised 
Statutes,' for  the  benefit  of  enlisted  men  of  the 
Army,  can  not  be  so  construed.  (25  Op.  Atty. 
Gen.,  190.) 

See  later  law  quoted  above  with  respect  to 
deposit  of  savings  by  enlisted  men  of  the  Marine 
Corps. 

Sale  of  fuel. — The  pro\ision  in  the  act  of 
June  12,  1906  (34  Stat.,  250),  amending  the  pro- 
vision relative  to  furnishing  fuel  to  officers  of 
the  Army  in  the  act  of  June  18,  1878  (20  Stat., 
150),  by  limiting  the  amount  to  be  piu-chased 
to  the  "actual  personal  necessities"  of  commis- 
sioned officers  on  the  active  list  as  certified  to 
by  them,  is  applicable  to  commissioned  officers 
of  the  Marine  Corps  on  the  active  list.  (13 
Comp.  Dec,  27.) 

Illegal  pajonents. — Payments  made  to  offi- 
cers of  the  Marine  Corps  under  an  act  which  had 
been  repealed  by  a  later  law  relating  to  the 
Army,  although  not  construed  by  the  account- 
ing officers  as  repealed,  are  binding  upon  the 
Government  and  can  not  be  recalled  to  the 


pecuniary  disadvantage  of  any  officer;  but  no 
erroneous  practice  of  however  long  standing  can 
justify  the  allowance  of  a  claim,  contested  by 
the  Government  in  a  suit,  contrary  to  what  is  the 
true  meaning  and  intent  of  the  statute.  (U.  S. 
V.  Freeman,  3  How.,  656.  For  other  cases,  see 
note  to  sec.  236,  R.  S.) 

Pay  of  officers  while  out  of  the  service. — 
Marine  Corps  officers  who  were  reduced  under 
the  act  of  March  2,  1847,  and  restored  under  a 
subsequent  act  are  not  entitled  to  pay  during 
the  interval.  Had  it  been  the  design  of  the  act 
which  restored  them  to  give  them  pay  during 
the  interval  of  the  reduction,  as  well  as  rank,  it 
would  have  been  so  declared.  The  relation 
back  was  for  rank,  not  for  pay.  The  whole  ob- 
ject of  the  act  was  to  place  these  officers  back  in 
the  service  by  a  new  commission.  All  princi- 
ple is  against  the  allow^ance  of  such  pay.  WTien 
no  service  is  needed,  no  compensation  should 
be  allowed.     (5  Op.  Atty.  Gen.,  101.) 

Extra  allowance  for  disbursing  money. — 
Congress  ha\'ing  prohibited  extra  allowance  or 
compensation  in  any  form  to  an  officer  of  the 
Army  on  account  of  the  disbursing  of  any  pub- 
Uc  money  appropriated  by  law,  held  that  the 
quartermaster  of  the  Marine  Corps  is  not  there- 
after entitled  to  such  extra  compensation.  (3 
Op.  Atty.  Gen.,  516;  compare,  U.  S.  v.  Kuhn, 
26  Fed.  Cas.  No.  15,  545.) 

For  other  cases,  see  generally  notes  to  sec- 
tion 1556,  etseq.,  relating  to  "Pay,  emoluments, 
and  allowances"  of  the  Navy;  as  to  retired  pay 
of  officers  and  enlisted  men  of  the  Marine  Corps, 
see  note  to  section  1622;  as  to  brevet  pay  and 
emoluments,  see  note  to  section  1604;  as  to  ad- 
ditional pay  allowed  officers  exercising  higher 
command  in  time  of  war,  see  note  to  section 
1611;  as  to  pay  of  enlisted  men  detained  in  the 
service  after  expiration  of  enlistment,  see  sec- 
tion 1422,  and  note  thereto;  as  to  pay  of  Marine 
Band,  see  section  1613,  and  note  thereto. 


Sec.  1613.  [Marine  band.]  The  marines  who  compose  the  corps  of  musi- 
cians known  as  the  "Marine  band"  shall  be  entitled  to  receive  at  the  rate  of 
four  dollars  a  month,  each,  in  addition  to  their  pay  as  non-commissioned 
officers,  musicians,  or  privates  of  the  Marine  Corps,  so  long  as  they  shall  per- 
form, by  order  of  the  Secretary  of  the  Navy,  or  other  superior  officer,  on  the 
Capitol  grounds  or  the  President's  grounds. —  (5  Aug.,  1854,  c.  268,  s.  1,  v.  10, 
p.  586.     18  Aug.,  1856,  c.  162,  s.  5,  v.  11,  p.  118.) 

changed  in  part  pavment  for  the  purchase 
of   like  articles.     (Act  Mar.    4,    1917,    39 
Stat.,  1189.) 
Status  of  Marine  Band. — While  the  Marine 


"A  member  of  the  said  band  shall  not,  as  an 
indi\"idual,  furnish  music,  or  accept  an 
engagement  to  furnish  music,  when  such 
furnishing  of  music  places  him  in  compe- 
tition with  any  civilian  musician  or  musi- 
cians, and  shall  not  accept  or  receive 
remuneration  for  furnishing  music  except 
under  special  circumstances  when  author- 
ized by  the  President."  (Act  Aug.  29, 
1916, 39  Stat.  ,612,  relating  to  Marine  Band.) 

As  to  composition  and  pay  of  Marine  Band,  see 
section  1596,  Revised  Statutes,  and  act  of 
August  29,  1916  (39  Stat.,  612),  quoted 
thereunder. 

Detail  of  musicians  to  companies  or  detach- 
ments of  marines:  See  section  1611,  Re- 
\'ised  Statutes. 

Worn-out  band  instruments,  sewing  machines, 
machinery,  and  rubber  tiies  may  be  ex- 


Corps  was  established  in  1775,  and  its  band  is 
one  of  the  best  known  organizations  of  the  char- 
acter in  the  country,  curiously  this  band  has 
never  had  formal  statutory  recognition.  Drums 
and  fifes  were  provided  for  the  Navy  as  long  ago 
as  1794(1  Stat.,  ;^50), while  in  1798  "musicians,  " 
then  understood  to  mean  drummers  and  fifers, 
were  given  to  the  Marine  Corps  (1  Stat.,  590). 
Section  1596,  Re\ased  Statutes,  describes  the 
organization  of  the  Marine  Corps  as  consisting 
of  a  certain  number  of  officers,  noncommissioned 
officers,  and  privates,  together  \Hth  a  drum 
major,  a  principal  musician,  30  musicians,  60 
drummers,  and  60  fifers;  but  no  mention  is 
made  of  a  musical  organization  until  the  enact- 


951 


Sec.  1613. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


nipnt  of  the  laws  now  condensed  in  section  IG13 
of  the  Revised  Statutes.  The  only  other  pro- 
vision looking  even  indirectly  to  a  musical 
organization  is  that  of  section  1596.  (Bond  v. 
U.  S.,  21  Ct.  Cls.,  457;  see  also,  Kepplert).  U.  S., 
27  Ct.  Cls.,  482.) 

Not  a  "Navy"  band. — The  provisions  of 
the  act  of  May  lli,  1908  (35  Stat.,  153),  wliich 
proliibit  "Na\^  bands  or  members  thereof" 
from  receiving  remuneration  for  furnishing 
music  outside  the  limits  of  military  posts,  when 
the  furnishing  of  such  music  places  them  in 
competition  Anth  local  musicians,  do  not  apply 
to  the  Marine  Band,  notwithstanding  that  simi- 
lar proAOsion  for  "Army  bands"  was  made  by 
act  of  May  11, 1908  (35  Stat.,  106, 110).  (27  Op. 
Atty.  Gen.,90.) 

The  words,  "Na\'y  bands,"  do  not  include 
the  Marine  Band,  and  in  the  servdce  would  not 
ordinarily  be  understood  to  include  a  band 
made  up  of  marines.  _  (27  Op.  Atty.  Gen.,  90.) 

Section  1613,  Revised  Statutes,  recognizes 
the  band  as  having  a  particular  title  of  its  o^vn, 
viz,  "Marine  Band."  In  construing  subse- 
quent legislation  it  should  be  assumed  that 
Congress  appreciated  the  significance  of  the 
fact  that  this  organization  was  generally  known 
as  the  "Marine  Band,"  as  recognized  by  said 
section.     (27  Op.  Atty.  Gen.,  90.) 

It  is,  however,  undoubtedly  true  that  at- 
tendant circumstances  might  show  an  intention 
on  the  part  of  Congress  to  include  the  Marine 
Band  by  the  term  "Navy  bands."  No  such 
circumstances  exist  in  this  case,  in  which  the 
statute  restricting  such  bands  in  furnishing 
music  outside  is  quasi  penal  and  should  be 
strictly  construed.     (27  Op.  Atty.  Gen.,  90.) 

See  later  statute  quoted  above  with  specific 
reference  to  the  Marine  Band. 

Private  detailed  to  duty  with  Marine 
Band. — A  private  in  the  Marine  Corps  was  as- 
signed to  duty  with  the  Marine  Band  at  the 
time  of  his  enlistment,  and  remained  and 
performed  duty  with  the  band,  as  a  private, 
until  he  was  rated  as  a  musician.  Held,  that 
he  was  one  of  "the  musicians  who  compose  the 
organization  known  as  the  Marine  Band," 
while  so  detailed;  and  having  performed  on 
the  Capitol  Grounds  and  on  the  President's 
grounds  under  proper  orders,  was  entitled  to  the 
additional  pav  pro\'ided  for  by  Revised  Stat- 
utes, section  1613.   (U.S. v. Bond,  124 U.S. , 301.) 

The  additional  compensation  given  by  sec- 
tion 1613  to  the  marines  who  compose  the 
organization  kno^^'n  as  the  Marine  Band,  is 
not  restricted  to  those  who  are  formally  rated  as 
musicians,  but  extends  to  all  marines  attached 
to  the  band  so  performing.  (Bond  v.  U,  S.,  21 
Ct.  Cls.,  457.) 

The  statute  does  not  say  that  the ' '  members  of 
the  Marine  Band"  shall  receive  extra  compen- 
sation, for  no  such  Vjand  is  known  to  the  law; 
but  the  pay  is  given  to  those ' '  marines  who  com- 
pose the  corps  of  musicians  known  as  the 
Marine  Band."  The  pliiaseology  of  section 
1613  is  extremely  peculiar.  It  seems  to  recog- 
nize the  fact  that  marines  other  than  those 
rated  as  musicians  performed  in  the  band. 
(Bond  V.  V.  S.,  21  Ct.  Cls.,  457.) 

Pay  of  Marine  Band. — See  laws  noted 
imder  section  1596,  Revised  Statutes,  as  to  the 
composition  and  pay  of  the  Marine  Band. 


Prior  to  the  act  of  March  3,  1899,  section  24 

i30  Stat . ,  1009),  relating  to  the  pay  of  the  Marine 
iand,  the  pay  of  enlisted  men  in  the  Marine 
Corps  was  assunilated  to  Army  pay,  which  was 
less  than  that  pro\dded  in  said  section;  and 
it  was  doubtless  for  that  reason  that  Congress 
added  the  last  clause  to  that  section,  viz, 
"such  musicians  of  the  band  to  have  no  in- 
creased pay  for  length  of  service. "  Under  this 
section,  held  that  as  to  musicians  of  the  band 
of  the  Marine  Corps,  section  1284,  Revised 
Statutes,  providing  for  pay  for  length  of  service 
to  eulisted  men  of  the  Army,  is  superseded,  and 
that  an  enlisted  man  in  the  Marine  Corps, 
member  of  said  band,  who  was  retired  after 
30  years'  service,  is  not  entitled  to  recover 
the  additional  pay  under  section  1284,  allowed 
soldiers  for  reenlistment.  (Giacchetti  v.  U.  S., 
39  Ct.  Cls.,  381.) 

Under  existing  statutes  relating  to  the  Marine 
Band,  the  question  of  the  emoluments  of  that 
excellent  organization  is  imfortunately  in- 
volved in  some  doubt.    (Keppler  v.  U.   S., 

27  Ct.  Cls.,  482,  485.) 

The  band  at  the  Military  Academy,  popularly 
known  as  the  West  Point  Band,  was  once  one 
of  fifteen  bands,  all  upon  the  same  footing; 
but  since  the  act  of  March  3,  1869,  has  been 
the  only  military  band  in  the  Army  of  the 
United  States.  Members  of  that  band  are 
allowed  the  pay  of  engineer  soldiers;  it  is  well 
settled  that  what  the  officers  and  enlisted  men 
of  the  Army  receive,  the  officers  and  enlisted 
men  of  the  Marine  Corps  shall  likewise  receive. 
Members  of  the  Marine  Band,  under  section 
1612,  Revised  Statutes,  are  entitled  to  the  pay 
of  "enlisted  men  of  like  grades  in  the  infantry 
of  the  Army.''  The  only  enlisted  men  of  like 
grades  in  the  infantry  of  the  Army  were,  at  the 
tinie  of  the  enactment,  the  members  of  the  West 
Point  Band.  Held,  that  members  of  the  Marine 
Band  are  entitled  to  the  same  retained  pay  as 
received  by  members  of  the  West  Point  Band 
and  engineer  soldiers.  (Patyschke  v.  U.  S.,31 
Ct.  Cls.,  384.) 

Allowances     of     second     leader. — The 

"second  leader"  of  the  Marine  Band  is  entitled 
by  statute  to  the  allowances  of  a  sergeant  major. 
By  Army  Regulations  sergeants  major  are 
entitled  to  quarters  at  the  rate  of  one  room, 
and  by  the  act  of  March  2, 1907  (34  Stat.,  1167), 
they  are  entitled  to  heat  and  light  for  the  same. 
(Smith  V.  U.  S.,  47  Ct.  Cls.,  313.) 

No  quarters  being  available  for  the  second 
leader  at  the  Marine  Barracks,  held  that  he  is 
not  entitled  to  commutation  therefor,  not  being 
a  commissioned  officer,  but  only  ranking  as  an 
enlisted  man,  and  no  statute  or  regulation 
providing  for  commutation  of  quarters  for 
enlisted  men  of  the  Army.  (Smith  v.  U.  S., 
47  Ct.  Cls.,  313.) 

By  act  of  May  4,  1898  (30  Stat.,  388),  an 
appropriation  was  made  for  the  hire  of  quarters 
for  certain  enlisted  men  employed  in  the  office 
of  the  Marine  Corps  in  Washington,  including 
the  leader  of  the  band,  but  no  appropriation 
was  made  for  quarters  for  the  second  leader, 
and  in  the  absence  of  express  appropriation 
therefor  quarters  can  not  be  hired  for  him. 
(Smith  V.  U.  S.,  47  Ct.  Cls.,  313.) 


952 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1615. 


Sec.  1614.  [Deduction  for  hospitals.]  The  Secretary  of  the  Navy  shall 
deduct  from  the  pay  due  each  of  the  officers  and  enlisted  men  of  the  Marine 
Corps  at  the  rate  of  twenty  cents  per  month  for  every  officer  and  marine,  to  be 
applied  to  the  fund  for  Navy  hospitals. —  (2  Mar.,  1799,  c.  36,  s.  2,  v.  1,  p.  729. 
26  Feb.,  1811.  c.  26,  s.  1,  v.  2,  p.  650.) 


Similar  provision  is  made  by  section   4808, 

Re\ised.  Statutes.  _ 
See  section  1586,  Revised  Statutes,  and    note 

thereto,    as    to    medicine    and    medical 

attendance. 
A.  clerk  to  a  commandaiit  of  a  navy  yard 
is  neither  an  officer,  enlisted  man,  nor  marine, 
and  the  Secretary  of  the  Navy  is  not  authorized 

Sec.  1615.  [Rations  of  enlisted  men.]  The  non-commissioned  officers, 
privates,  and  musicians  of  the  Marine  Corps  shall,  each,  be  entitled  to  receive 
one  Navy  ration  daily. —  (1  July,  1797,  g.  7,  s.  6,  v.  1,  p.  524.  11  July,  1798, 
c.  72,  s.  2,  V.  1,  p.  595.) 


under  section  1614,  to  deduct  20  cents  per 
month  from  his  pay.  Such  a  clerk  is  not 
entitled  to  reimbursement  for  medicines  and 
medical  attendance.  (1  Comp.  Dec,  289. 
But  see  25  Comp.  Dec,  745,  in  which  clerks 
to  commandants  were  held  to  be  officers  of  the 
Navy  in  another  connection. ) 


Amendment  to  this  section  was  made  by  act 
of  March  4,  1917  (39  Stat.,  1189),  under 
"Provisions,  Marine  Corps,"  as  follows: 
"Hereafter  no  law  shall  be  construed  to 
entitle  enlisted  men  on  shore  duty  to  any 
rations  or  commutation  therefor  other  than 
such  as  are  now  or  may  hereafter  be  al- 
lowed enlisted  men  in  the  Army:  Provided, 
That  when  it  is  impracticable  or  the  ex- 
pense is  found  greater  to  supply  marines 
serving  on  shore  duty  in  the  island  posses- 
sions and  on  foreign  stations  with  the  Army 
ration,  such  maiines  may  be  allowed  the 
Navy  ration  or  commutation  therefor. " 
(It  had  pre\iously  been  pro\'ided  by  a 
clause  in  the  aimual  naval  appropriation 
act  of  March  2,  1891,  and  subsequent 
years,  under  "Provisions,  Marine  Corps," 
that  "no  law  shall  be  construed  to  entitle 
enlisted  marines  on  shore  duty  to  any 
rations  or  commutation  therefor  other  than 
such  as  now  are  or  may  hereafter  be  al- 
lowed enlisted  men  in  the  Army. "  Com- 
mencing with  the  act  of  Mar.  3,  1901,  there 
was  added  to  this  clause  in  the  annual 
appropriation  act,  the  following  proviso: 
"That  when  it  is  impracticable  or  the 
expense  is  found  greater  to  supply  marines 
serving  on  shore  duty  in  the  island  posses- 
sions and  on  foreign  stations  with  the  Army 
ration,  such  marines  may  be  allowed  the 
Navy  ration  or  commutation  therefor. " 
These  clauses  were  thereafter  repeated 
annually,  until  the  act  of  Mar.  4,  1917, 
above  quoted,  in  which  they  were  made 
permanent  legislation  by  the  use  of  the 
word  "hereafter.") 

Amendment  was  also  made  to  this  section  by 
act  of  July  11,  1919  (41  Stat.,  154). 

By  act  of  May  18, 1920,  section  5  (41  Stat.,  602), 
it  was  pro\'ided  "that  all  noncommis- 
sioned officers  of  the  Army  of  grade  of  color 
sergeant  and  above  as  fixed  by  existing 
Army  Regulations  and  noncommissioned 
officers  of  the  Marine  Corps  of  correspond- 
ing grades  shall  be  entitled  to  one  ration  or 
commutation  therefor  in  addition  to  that  to 
which  they  are  now  entitled.  The  com- 
mutation value  shall  be  determined  by  the 
President  on  July  1  of  each  fiscal  year,  and 


for  the  current  fiscal  year  the  value  shall  be 
computed  on  the  basis  of  55  cents  per  ra- 
tion. "     By  section  13  of  the  same  act  C^l 
Stat.,  604),  it  was  provided  that  this  pro- 
\'ision  shall  remain  effective  until  June  30, 
1922,  unless  sooner  amended  or  repealed. 
By  act  of  June  4,  1920,  section  4  (41  Stat., 
761),  establishing  new  grades  and  pay  for 
enlisted  men  (noted  under  sec.  1612,  R.  S., 
under  "Army  laws  applicable  to  Marine 
Corps"),  it  was  provided  that  "the  tem- 
porary allowance  of  rations  authorized  by 
section  5"  of  the  act  approved  May  18, 
1920,  "shall  apply  only  to  enlisted  men  of 
the  first  three  grades.  " 
"Commutation  of  rations  to  recruiting  parties, 
and    enlisted    men    traveling    on    special 
duty,  at  such  rate  as  the  Secretary  of  the 
Navy  may  prescribe, "  is  authorized   by 
clause  in  the  annual  naval  appropriation 
act    under    "Provisions,    Marine    Corps." 
(Act  June  4,  1920,  41  Stat.,  831.) 
Rations  of  enlisted   men   of  the   Navy:  See 
sections  1579-1585,  Revised  Statutes,  and 
notes  thereto. 
Rations     are      "allowance"     and     not 
"pay." — -The    clause    referring   to   additional 
ration  or  commutation  therefor,  in  section  5  of 
the  act  of  May  18,  1920  (41  Stat.,  602),  which, 
under  section  4  of  the  Army  reorganization  act 
of  June  4,  1920  (41  Stat.,  761),  shall  apply  only 
to  enlisted  men  of  the  Army  and  Marine  Corps 
of  the  first  three  grades,  became  effective  from 
May  18,  1920,  such  additional  ration  being  an 
allowance,  and  not  one  of  the  increases  of  pay 
which,  under  said  act  of  May  18,  1920,  became 
effective  from  January  1,  'l920.     (27   Comp. 
Dec,  31.) 

Commutation  defined. — Commutation  in 
the  military  or  naval  service  is  money  paid  in 
substitution  of  something  to  which  an  officer, 
sailor,  or  soldier  is  entitled.  Being  regulated 
by  statute,  commutation  can  not  be  allowed  by 
inferior  authority.  (Jaegle  v.  U.  S.,  28  Ct. 
Cls.,  133.) 

Under  a  usage  in  the  Marine  Corps,  musicians 
at  their  option  were  allowed  to  take  the  cost 
price  of  their  rations,  instead  of  being  subsisted 
on  the  rations  issued.  This  payment  to  musi- 
tians  of  the  cost  price  of  rations  was  not  commu- 


963 


Sec.  1616. 


P/.  2.  REVISED  STATUTES. 


The  Navy. 


tation,  but  was  \artually  a  purchase  of  the 
rations  from  them  at  the  invoice  price,  and  a 
musician  who  elected  to  take  the  price  instead 
of  subsistence  in  kind  was  not  thereafter  en- 
titled to  the  commutation  price  of  a  Navy- 
ration  prescribed  In-  Re\'isea  Statutes  section 
lo85,  not\\'ithstandin;j;  that  the  money  paid  to 
him  was  not  the  commutation  price  of  the  Navy 
ration  prescribed  by  sections  1580  and  1581, 
Revised  Statutes,  but  was  the  actual  cost  of  an 
inferior  ration  which  during  his  period  of  service 
was  issued  to  the  corps.  (Jaegle  v.  U.  S.,  28 
Ct.  Cls.,  133.) 

Commutation  is  not  necessarily  equal  to  the 
value  of  the  thing  for  which  it  is  a  substitute, 
but  is  supposed  to  be  in  the  general  average  of 
cases  a  fair  equivalent.  (Jaegle  v.  U.  S.,  28 
Ct.  Cls.,  133.) 

The  principle  which  governs  the  commuta- 
tion of  rations  in  lieu  of  subsistence  is  that 
commutation  will  not  be  allowed  where  sub- 


sistence in  kind  is  provided  by  the  Govern- 
ment.    (Jaegle  v.  U.  S.,  28  Ct.  Cls.,  133.) 

Rations  of  officers. — An  officer  of  the  Ma- 
rine Corps  attached  to  a  seagoing  vessel  is  not 
entitled  to  the  ration  allowed  by  Re\'ised 
Statutes,  section  1578,  to  a  naval  officer  so  at- 
tached. Such  an  officer  is,  by  section  1612, 
subjected  to  the  provisions  of  section  1269. 
Commissioned  officers  of  the  Army  are  not 
allowed  rations,  although  they  are  allowed  to 
the  noncommissioned  officers  and  enlisted 
men  by  section  1293.  (Reid  v.  U.  S.,  18  Ct. 
Cls.,  625.) 

Subsistence  of  enlisted  men. — The  ex- 
penses necessarily  grooving  out  of  the  transpor- 
tation and  subsistence  of  marines  detailed  for 
the  Navy  Department's  exhibit  at  the  World's 
Columbian  Exposition  may  be  paid  from  the 
fund  provided  for  the  Marine  Corps  and  its 
subsistence.     (20  Op.  Atty.  Gen.,  577.) 


Sec.  1616.  [Service  on  armed  vessels.]  Marines  may  be  detached  for  service 
on  board  the  armed  vessels  of  the  United  States,  and  the  President  may  de- 
tach and  appoint,  for  service  on  said  vessels,  such  of  the  officers  of  said  corps  as 
he  may  deem  necessary. —  (1  July,  1797,  c.  7,  s.  4,  v.  1,  p.  523.  11  July,  1798, 
c.  72,  ss.  1,  3,  V.  1,  p.  595.) 


By  act  of  March  3,  1909  (35  Stat.,  773),  making 
appropriations  for  pay  of  the  Marine  Corps 
for  the  ensuing  fiscal  year,  it  was  pro\aded 
"that  no  part  of  the  appropriations  herein 
made  for  the  Marine  Corps  shall  be  ex- 
pended for  the  purpose  for  which  said  ap- 
propriations are  made  imless  officers  and 
enhsted  men  shall  serve  as  heretofore  on 
board  all  battleships  and  armored  cruisers, 
and  also  upon  such  other  vessels  of  the  navy 
as  the  President  may  direct,  in  detach- 
ments of  not  less  than  eight  per  centmn  of 
the  strength  of  the  enlisted  men  of  the 
Navy  on  said  vessels."     (This  proviso  was 
not  repeated  in  subsequent  years.) 
"When  a  force  of  marines  is  embarked  on  a  na- 
val vessel,  or  vessels,  as  a  separate  organi- 
zation, not  a  part  of  the  authorized  com- 
plement thereof,  the  authority  and  powers 
of  the  officers  of  such  separate  organization 
of  marines  shall  be  the  same  as  though  such 
organization  were  sersdng  at  a  navy  yard 
on  shore,  but  nothing  herein  shall  be  con- 
strued  as  impairing  the   paramount  au- 
thority of  the  commanding  officer  of  any 
naval  vessel  over  the  vessel  under  his  com- 
mand and  all  persons  embarked  thereon." 
(Act  Aug.  29,  1916,  39  Stat.,  586.) 
Power  of  Congress  to  regulate  duty  of 
Marine  Corps. — The  Attorney  General  enter- 
tains no  doubt  as  to  the  constitutionality  of  the 
clause  contained  in  the  naval  appropriation  act 
of  March  3,  1909  (above  quoted).     If  the  Presi- 
dent, as  Commander  in  Chief,  desires  to  direct 
the   JIarine   Corps   to   perform   any   fimction 
which  shall  involve  the  application  of  the  ap- 
propriation therein  made,  he  must  direct  that 
oflieers  and  enlisted  men  of  the  corps  shall  serve 
as   theretofore  on  board    all    Ijattleships   and 
armored  cruisers,  and  u])on  such  other  vessels 
as  he  may  direct,  in  detachments  of  not  less 


than  eight  per  centum  of  the  strength  of  the 
enlisted  men  of  the  Navv  on  said  vessels.  (27 
Op.  Atty.  Gen.,  259.) 

Inasmuch  as  Congress  has  power  to  create  or 
not  to  create,  as  it  shall  deem  expedient,  a  Ma- 
rine Corps,  it  has  power  to_  create  such  corps  and 
make  appropriation  for  its  pay,  but  pro\'ide 
that  such  appropriation  shall  not  be  available 
unless  the  corps  l^e  employed  in  some  desig- 
nated way.     (27  Op.  Atty.  Gen.,  259.) 

See  cases  noted  imder  Constitution,  Article 
II,  section  2,  clause  1,  as  to  powers  of  the  Presi- 
dent as  Commander  in  Chief. 

Accounts  of  marines  carried  on  vessels; 
serving  on  shore. — Marines  doing  duty  in 
Cuba,  whose  pay  accounts  were  kept  on  the 
paATnaster's  books  of  a  vessel  for  convenience, 
but  who  were  never  attached  to  the  vessel  for 
naval  duty,  were  not  entitled  to  share  in  the 
bounty  awarded  said  vessel.  Ne^'er  ha\'ing 
served  on  the  vessel,  they  could  not  be  con- 
sidered to  be  temporarily  absent  therefrom 
within  the  meaning  of  section  4633,  Revised 
Statutes,  which  pro\dded  that  "no  officer  or 
other  person  who  shall  have  been  temporarily 
absent  on  duty  from  a  vessel  on  the  books  of 
which  he  continued  to  be  borne,  while  so  ab- 
sent, shall  be  deprived,  in  consequence  of  such 
absence,  of  any  prize  money  to  which  he  would 
other\vise  be  entitled."  (Engagement  off  San- 
tiago Bay,  36  Ct.  (^Is.,  200.) 

The  words  "detached"  and  "detach"  are 
undoubtedly  used  in  this  section  in  their  proper 
military  significance.  Marines  on  board  the 
armed  vessels  of  the  United  States  are  for  the 
time  being  out  of  their  normal  relations  to  the 
Marine  Corps  and  removed  from  the  direct  com- 
mand of  those  officers  who  would  otherwise  ex- 
ercise such  direct  command  under  the  law. 
(File  21277,  Mar.  31,  1906;  see  note  to  sec.  1617.) 


954 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1619. 


Sec.  1617.  [Command  of  navy  yards  or  vessels.]  No  officer  of  the  Marine 
Corps  shall  exercise  command  over  any  navy-yard  or  vessel  of  the  United 
States.— (30  June,  1834,  c.  132,  s.  4,  v.  4,  p.  713.) 


Commandants  of  navy  yards  to  be  selected 
' '  fi'om  officers  not  below  the  gi-ade  of  com- 
mander."    (Sec.  1542,  R.  S.;  see  note  to 
that  section.) 
The    President   is   authorized    "to    formulate 
appropriate  rules  goveiTiing  assignments  to 
command    of    vessels    and    squadroas." 
(Act  Mar.  3,  1901,  31  Stat.,  1133;  see  note 
to  sec.  1529,  R.  S.) 
Purpose  of  section. — It  seems  clear  that  the 
act  of  June  30,  1834,  embodied  in  this  section, 
was  passed  to  avoid  the  danger  lest  an  officer  of 
marines,  who  might  be  altogether  ignorant  of 
na\dgation    and    inexperienced    in    nautical 
matters,  should  find  himself  accidentally  the 
officer  of  highest  rank  on  board  a  ship  and  claim 
the  command  by  -virtue  of  his  rank.     Navy 
yards  were  evidently  included  in  the  terms  of 
the  act  of  1834  because  the  objections  to  the 
exercise  of  command  over  them  on  the  part  of 
officers  of  marines,  although  less  in  degree,  were 
the  same  in  kind  as  those  existing  to  the  exercise 
of  like  command  bv  such  officers  over  ships  of 
war.     (File  21277,  Mar.  31,  1906.) 

Rank  of  officer  iramaterial.— Whatever 
the  rank  of  a  marine  officer,  he  is  always  subject 
to  the  orders  of  the  captain  of  the  sliip  or  the 
commandant  of  the  navy  yard  on  or  at  which  he 
serves.     (File  21277,  Mar.  31,  1906.) 

Authority  of  higher  officers  of  corps. — 
Certain  higher  officers  of  the  corps  not  only  may 
legally  but  are  eAddently  intended  by  this  law 
to  exercise  some  measure  of  authority  over 
those  officers  and  enlisted  men  who  may  be 
"detached"  for  service  on  board  vessels  or  at 
navy  yards;  as  they  may  and  indeed  must 
exercise  a  like  measm'e  of  authority  over  any 
of  the  forces  who  may  be  detached  for  service 
with  the  Army  under  section  1621.  (File 
21277,  Mar.  31,  1906.) 

Jurisdiction  at  naval  stations. — It  will 
be  noted  that  this  statute  refers  only  to  navy 


yards,  and  does  not  apply  to  naval  stations 
which  are  not  navy  yards,  and  moreover  that  it 
does  not  prohibit  the  exercise  of  command 
within  a  ship  or  within  a  nary  yard  by  officers 
of  marines;  it  merely  provides  that  they  shall 
not  have  cormnand  "over"  the  ship  or  "over" 
the  yard.     (File  21277,  Mar.  31, 1906.) 

"No  officer  of  the  Marine  Corps  shall  exercise 
command  over  any  naval  station  of  the  United 
States."  (Navy.  Regs.,  1913,  art.  4101,  par.  6. 
See  also  file  5530,  Nov.  8,  1906.) 

While  section  1617  refers  only  to  navy  yards 
and  vessels,  and  "does  not  apply  to  naval 
stations  which  are  not  navy  yards,"  neverthe- 
less the  ]\Iarine  Corps  is  at  all  times  subject  to 
the  regulations  for  the  government  of  the 
Navy,  except  in  the  single  contingency  of 
being  detached  and  assigned  temporarily  to 
duty  with  the  Army;  and  as  the  Navy  Regula- 
tions provide  that  no  officer  of  the  Marine  Corps 
shall  exercise  command  over  any  station,  held 
that  a  marine  officer  could  not  exercise  com- 
mand over  the  naval  station,  Hawaii,  by  suc- 
cession, in  the  absence  of  line  officers  of  the 
Navy.     (File  5530,  Nov.  8,  1906.) 

Marine  brigade,  Philippine  Islands. — • 
The  officer  commanding  the  marine  brigade  in 
the  PhiUppines  should  have  fuU  command  over 
so  much  of  this  force  as  is  not  "detached"  for 
duty  on  board  any  armed  vessel  or  at  any  navy 
yard.  There  is  no  legal  impediment  to  his 
exercising  authority  for  administrative  or 
disciplinary  purposes  over  the  detachments 
which  are  on  duty  at  navy  yards,  or  in  gi^'ing 
him  control  for  such  purposes  over  all  the 
marines  on  duty  in  the  Philippines.  (File 
21277,  Mar.  31,  1906.) 

The  officer  in  command  of  the  marine  brigade 
in  the  Philippines  is  subject  to  the  orders  of  the 
commander  of  the  Philippine  squadron,  as  well 
as  of  the  commander  in  chief  of  the  Asiatic 
fleet.     (File  21277,  Mar.  31,  1906.) 


Sec.  1618.  [Marines  substituted  for  landsmen.]  The  President  may  substitute 
marines  for  landsmen  in  the  Navy,  as  far  as  he  may  deem  it  for  the  good  of  the 
service.— (3  Mar.,  1849,  c.  103,  s.  1,  v.  9,  p.  377.) 


"The  Secretary  of  the  Navy  is  authorized,  in 
his  discretion,  to  establish  such  grades  and 
ratings  as  may  be  necessary  for  the  proper 
administration  of  the  enlisted  personnel  of 
the  Navy  and  Marine  Corps."  (Act  June 
4,  1920,  sec.  7,  41  Stat.,  836.) 


The  transfer  of  marines  to  the  Hospital  Corps  of 
the  Navy  is  authorized  by  act  of  August  29, 
1916  (39  Stat.,  572),  which  also  authorizes 
similar  transfers  from  the  Hospital  Corps 
to  the  Marine  Corps. 


Sec.  1619.  [Duty  on  shore.]  The  Marine  Corps  shall  be  liable  to  do  duty  in 
the  forts  and  garrisons  of  the  United  States,  on  the  sea-coast,  or  any  other 
duty  on  shore,  as  the  President,  at  his  discretion,  may  direct. — (11  July,  1798,  c. 
72,  s.  6,  V.  1,  p.  596.) 


See   notes  to  sections  1616,   1617,  and  1621, 
ReAdsed  Statutes. 
Norraal   duty  of  marines. — This  section 
indicates  what  are  the  duties  of  the  Marine 


Corps  under  normal  conditions  contemplated 
by  its  organization.     (File  21277,  Mar.  31, 1906.) 


54641°— 22 61 


955 


Sec.  1621. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


Sec.  1620.  [Regulations.]  The  President  is  authorized  to  prescribe  such 
military  regulations  for  the  discipline  of  the  Marine  Corps  as  he  may  deem 
expedient. —  (30  June,  1834,  c.  132,  s.  8,  v.  4,  p.  713.) 


As  to  regulations  in  general,  see  sections  161 

and    1547,    Revised   Statutes,    and   notes 

thereto. 
Ab  to  regulations  governing  the  ^^arine  Corps, 

see  section   1621,   Revised  Statutes,   and 

note  thereto. 
Post  exchanges. — Navy  regulations  author- 
izing the  establishment  of  post  exchanges  in 
the  Marine  Corps  conflict  vith  no  law.  A 
post  exchange  so  established  is  not  a  voluntary 
association  but  an  institution  established  by 
the  Government  for  the  benefit  of  commissioned 


officers  and  enlisted  men.  A  disbursing  officer 
of  the  Marine  Corps  who  receives  money  from 
enlisted  ^-\(in  under  such  regulations  is  as  re- 
sponsible for  it  as  for  any  other  money  confided 
to  his  care.  The  Government  has  such  an 
interest  in  the  funds  of  the  post  exchange  as  to 
justify  a  deduction  of  the  pay  of  the  disbursing 
officer  in  charge  in  order  to, reimburse  the 
enlisted  men  for  their  losses  incurred  by  reason 
of  his  neglect  and  want  of  care.  (Woog  v. 
U.  S.,48Ct.  Cls.,80.) 


Sec.  1621.  [When  detached  for  service  with  the  Army.]  The  Marine  Corps 
shall,  at  all  times,  be  subject  to  the  laws  and  regulations  established  for  the 
government  of  the  Navy,  except  when  detached  for  service  with  the  Army  by 
order  of  the  President;  and  when  so  detached  they  shall  be  subject  to  the 
rules  and  articles  of  war  prescribed  for  the  government  of  the  Army. —  (11  July, 
1798,  c.  72,  s.  4,  v.  1,  p.  595.     30  June,  1834,  c.  132,  s.  2,  v.  4,  p.  713.) 

nineteen  hundred  and  sevent-een:  Provided, 
That  officers  of  the  Marine  Corps  tempora- 
rily promoted  to  higher  grades  in  any  of 
the  forces  of  the  Army  under  the  provisions 
of  this  Act  shall  not  thereby  vacate  their 
permanent  appointments  or   commissions 
or  be  prejudiced  in  their  relative  lineal 
standing  in   the   Marine    Corps:  Provided 
further,  That  temporary  vacancies  in  the 
Marine  Corps  caused  by  the  ajipointment 
of  officers  to  higher  grades  in  the  Army 
shall  be  temporarily  filled  in   the  same 
manner  as  is  now  prescribed  by  law:  And 
provided  further,  That  the  temporary  pro- 
motions herein  authorized  shall  contmue 
only  while  such  officers  are  detached  for 
duty  Mdth  the  Army.  "     (Act  Jan.  12,  191<), 
40  Stat.,  1054.) 
See  section  1135,  Revised  Statutes,  as  to  sup- 
plies and  transportation  for  marine  detach- 
ments cooperating  with  land  troops. 
The  Secretary  of  War  was  authorized  and  di- 
rected to  transfer  to  the  Secretary  of  the 
Navy,  for  the  use  of  the  Marine  Corps 
without  payment  therefor,   such  reserve 
stock  of  clothing,  arms,  equipment,  and 
other  necessary  military  supplies,  invento- 
ried at  the  cost  to  the  Army,  and  not  to 
exceed  in  the  aggregate  $7,000,000,  as  the 
same  may  from  time  to  time  be  requisi- 
tioned.    (Act  Feb.  25,  1919,  40  Stat.,  1174.) 
Jurisdiction    of    the    Secretary   of    the 
Navy. — The   Secretary   of   the   Navy   is   the 
organ  through  which  the  President,   who  is 
commander  in  chief,  makes  known  his  will  to 
the  Navy.     AVhether  the  Marine  Corps  shall 
be  doing  service  on  shipboard  or  on  shore,  the 
President's  orders  may  properly  pass  thi'ough 
the  Secretary  of  the  Navy  to  it,  except  where 
the  corps  shall  have  been  incorporated  with 
the  Army  for  a  given  service  on  land.     (1  Op. 
Atty.  Gen.,  380.) 

The  Marine  Corps  belonging  to  the  naval 
establishment,  and  the  orders  issued  by  the 
Secretary  of  the  Navy  being,  in  contemplation 


Amendment  to  this  section  was  made  by  act  of 
August  29,  1916  (39  Stat.,  651),  now  em- 
bodied in  act  of  June  4,  1920  (41  Stat., 
787-812),  prescribing  new  Articles  of  War, 
article  2  of  which  provides  that  "the 
follomng  persons  are  subject  to  these 
articles  and  shall  be  understood  as  included 
in  the  term  'any  person  subject  to  military 
law,'  or  'persons  subject  to  military  law,' 
whenever  used  in  these  articles:  *  *  * 
(c)  Officers  and  soldiers  of  the  Marine  Corps 
when  detached  for  service  with  the  armies 
of  the  United  States  by  order  of  the  Presi- 
dent: Provided,  That  an  officer  or  soldier 
of  the  Marine  Corps  when  so  detached  may 
be  tried  by  military  court-martial  for  an 
offense  committed  against  the  laws  for  the 

fovernment  of  the  naval  service  prior  to 
is  detachment,  and  for  an  offense  com- 
mitted against  these  articles  he  may  be 
tried  by  a  naval  court-martial  after  such 
detachment  ceases. " 

By  act  of  August  29,  1916  (39  Stat.,  573),  it  was 
pro\'ided  that  "officers  and  enlisted  men 
of  the  Medical  Department  of  the  Navy, 
serving  with  a  body  of  marines  detached 
for  service  mth  the  Army  in  accordance 
with  the  provisions  of  section  sixteen 
himdred  and  twenty-one  of  the  Revised 
Statutes,  shall,  while  so  serving,  be  subject 
to  the  rules  and  articles  of  war  prescribed 
for  the  government  of  the  Army  in  the 
same  manner  as  the  officers  and  men  of  the 
Marine  Corps  while  so  serving.  " 

•'Commissioned  officers  of  the  Marine  Corps, 
detached  for  duty  with  the  Army  imder 
the  provisions  of  section  sixteen  hundred 
and  twenty-one.  Revised  Statutes,  shall  be 
eligible,  in  the  same  manner  as  officers  of 
the  Regular  Army,  for  temporary  promo- 
tion to  higher  gi-aaes  in  any  of  the  forces 
provided  by  the  Act  entitled  'An  Act  to 
authorize  the  President  to  increase  tem- 
porarily the  ^rilitary  Establishment  of  the 
United  States, '  approved  May  eighteenth, 


966 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1621. 


of  law,  the  orders  of  the  President,  it  follows 
that  the  Secretary  may  suspend,  modify,  or 
rescind  any  order  issued  by  the  commandant 
of  the  corps  or  any  subordinate  officer,  except 
•where  a  direct  authority  has  been  given  by 
Congress  to  an  officer  to  perform  any  jjarticular 
fimction,  such  as  to  order  courts-martial  in  cer- 
tain cases.     (1  Op.  Atty.  Gen.,  380.) 

In  the  absence  of  a  special  order  from  the 
President  detaching  the  Marine  Corps  for  ser- 
xice  with  the  Ai'my,  the  office  of  commandant 
of  the  Marine  Corps  is  imder  the  direct  super- 
vision and  control  of  the  Secretary  of  the  Navy, 
and  in  the  event  of  a  vacancy  its  duties  may 
be  performed  by  the  Secretary  or  by  the  Acting 
Secretajy.    (28  Op.  Atty.  Gen.,  486,  490.) 

The  Secretary  of  the  Na\'y  baa  authority, 
imder  section  1621,  to  detail  men  to  guard  and 
protect  property  of  the  Government  placed  on 
exhibition  at  the  World's  Columbian  Exposi- 
tion; the  cost  of  transportation  and  sustenance 
of  such  detail  must  be  paid  from  the  fimd 
pro\ided  for  the  Marine  Corps  and  its  subsist- 
ence, and  is  only  limited  by  the  consideration 
of  the  question  whether  there  are  sufiicient 
funds  available  for  that  purpose,  as  to  which 
the  Secretary  is  the  sole  judge.  (20  Op.  Atty. 
Gen.,  576.) 

Not  abureau  of  the  Navy  Department. — 
The  Maiine  Corps  is  a  part  of  the  naval  estab- 
lishment, but  it  is  not  part  of  the  Navy  Depart- 
ment as  established  at  the  seat  of  government; 
it  is  imder  the  supei-vision  of  an  executive 
department,  but  that  relation  to  the  depart- 
ment is  not  the  same  as  being  part  of  it.  The 
Navy  Department  is  established  by  section 
415,  Re\'ised  Statutes,  and  section  419  estab- 
lishes certain  bureaus  among  which  is  to  be 
distributed  the  business  of  the  department; 
the  Marine  Corps  is  not  one  of  the  bureaus,  and 
there  is  no  law  making  it  a  bureau,  office,  or 
branch  of  the  Navy  Department.  (11  Comp. 
Dec,  558;  see  also  28  Op.  Atty.  Gen.,  487, 
where  tlus  question  suggested  but  not  decided.) 

Jvuisdiction  over  Marine  Corps  when 
serving  alone. — This  section  clearly  subjects 
the  Marine  Corps  when  serving  alone  and  with- 
out the  cooperation  of  either  the  Army  or  Navy, 
to  the  laws  and  regulations  established  for  the 
government  of  the  latter.  (File  21277,  Mar.  31, 
1906.) 

Normal  status  of  Marine  Corps  part  of 
the  Navy.^See  notes  to  sections  761,  1418, 
and  1422,  ReArised  Statutes. 

Does  the  Marine  Corps  belong  to  the  Army 
or  the  Na\'y?  Its  name  would  seem  to  answer 
this  question.  It  is  called  a  marine  corps;  its 
characteristic  action,  then,  is  to  perform  duty 
at  sea;  and  by  its  primary  and  fundamental 
character,  therefore,  it  belongs  to  the  Navy. 
It  is  true  that  the  President  may  order  it  to 
perform  service  on  shore;  but  it  would  still  be 
the  maiine  corps  performing  ser\dce  on  shore. 
The  order  directing  it  to  such  service  would 
pass  through  the  Secretaiy  of  the  Navy,  as 
would  all  the  President's  orders  while  engaged 
in  Buch  ser\ice,  while  its  action  was  single  or 
separate  fi-om  tnat  of  the  Anny.  (1  Op.  Atty. 
Gen.,  380);  compare  2  Op.  Atty.  Gen.,  353,  354, 
where  it  is  stated  that  the  Marine  Corps  is 
more  assimilated  to  the  Army  proper  than  to 


the  naval   branch  of   our   military  establish- 
ment.) 

The  act  of  July  1,  1797  (1  Stat.,  523),  "pro- 
viding a  naval  armament, ' '  assigns  to  each  ship, 
besides  mariners,  and  so  forth,  a  certain  number 
of  marines.  The  duty  of  marines  is  exclusively 
maritime;  for  sea  ser\-ice  only.  By  this  act 
they  have  no  connection  vath  the  Ai-my,  in 
character  of  duty  to  be  performed.  Here  they 
are  not  amphibious.  The  next  act  on  the  sub- 
ject of  the  Marine  Corps  is  that  "for  estabhshing 
and  organizing  a  Marine  Corps"  of  July  11,  1798 
(1  Stat.,  594).  The  use  of  the  words  in  this  act, 
"in  addition  to  the  present  military  estabhsh- 
ment,  there  shall  be  raised  a  corps  of  marines," 
and  so  forth,  did  not  constitute  the  maiines  in 
fact  part  of  the  military  estabhshment,  nor 
make  applicable  to  the  Maiine  Corps  general 
pro\-isions  relating  to  the  Army;  nor  did  this 
follow  from  the  last  section  of  that  act,  author- 
izing the  President  to  employ  the  maiines  on 
shore,  and  so  forth.  The  maiines  were  a  body 
known  to  the  law  by  act  of  July  1,  1797,  as  a 
purely  maritime  or  naval  force ;  and  the  enlarge-^ 
ment  of  that  force  or  the  assigning  to  them  of 
duties  on  shore,  does  not  necessarily  identify 
them  with  the  Army,  and  those  words  could 
not  have  the  effect  of  constituting  as  part  of  the 
Army,  a  force  governed  by  different  rules  and 
regulations,  and  destined  to  a  ser\ice  unknown 
to  and  incompatible  with  the  character  and  du- 
ties and  ser\ice  of  the  Army.  The  marines  are 
certainly  a  military  force  as  weU  as  the  Army, 
and  are  in  addition  to  the  then  existing  miUtary 
establishment.  It  is  to  be  remarked,  also,  that 
although  the  marines  may  be  compelled  to  do 
duty  on  shore,  it  is  not  part  of  their  ordinary 
duty  but  at  the  discretion  of  the  President  as  in 
case  of  the  invasion  of  the  tenitories  of  an  ene- 
my's coast  by  a  naval  force  the  seamen  may  be 
compelled  to  do  the  duty  of  soldiers  or  marines 
at  the  discretion  of  the  commander  of  the  ship 
or  squadron.  (U.  S.  v.  Kuhn,  26  Fed.  Cas.  No. 
15,545,  pp.  821, 822.) 

The  Marine  Corps  are  at  all  times  subject  to 
the  laws  and  regidations  established  for  the 
better  government  of  the  NaA'y,  except  when 
detached  for  ser\ice  with  the  Army  by  order 
of  the  President.  They  are  organized,  as  the 
name  implies,  for  sea  ser\ice,  and  are  subject 
to  the  direction  and  control  of  the  Secretaiy  of 
the  NaA^.  (10  Op.  Atty.  Gen.,  116,  1x8;  see 
also,  10  Op.  Atty.  Gen.,  129.) 

Although  marines  are  not  in  some  senses, 
"seamen, "  and  their  duties  are  in  some  respects 
different,  yet  they  are,  while  employed  on 
board  public  vessels,  persons  in  the  naval  serv- 
ice, persons  subject  to  the  orders  of  naval  offi- 
cers, persons  under  the  government  of  the  naval 
code  as  to  punishment,  and  persons  amenable 
to  the  Navy  Department.  Their  very  name  of 
"marines"  indicates  the  place  and  nature  of 
their  duties  generally.  And  besides  the  anal- 
ogies of  their  duties  in  other  countries,  their 
first  creation  here  to  serve  on  board  ships  ex- 
pressly declared  them  to  be  a  part  "of  the 
crews  of  each  of  said  ships"  (act  Mar.  27,  1794, 
1  Stat.,  350,  sec.  4).  Their  pay  was  also  to  be 
fixed  in  the  same  way  as  that  of  seamen  (sec.  6, 
p.  351).  So  it  was  again,  by  the  act  of  April  27, 
1798  (1  Stat.,  552).    And  they  have  ever  since 


957 


Sec.  1621. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


been  associated  with  the  Navy,  except  when 
specially  dotailed  by  the  President  for  service 
in  the  Army  (see  act  July  11,  1798,  1  Stat.,  595. 
59G).  Thus  paid,  thus  serving,  and  thus  gov- 
erned like  and  with  the  Navy,  it  is  certainly 
no  forced  construction  to  consider  them  as  em- 
braced in  the  spirit  of  the  act  under  considera- 
tion by  the  description  of  persons  "enlisted  for 
the  Navy."  (Wilkes  v.  Dinsman,  7  How.,  89. 
See  note  below,  under  "Navy  laws  held  appli- 
cable to  Marine  Corps.") 

The  act  of  June  30,  1834  (4  Stat.,  713),  adds 
much  strength  to  these  conclusions.  By  sec- 
tion 2  it  provides  "that  the  said  cor])s  shall  at 
all  times  be  subject  to  and  under  the  laws  and 
regulations  which  are  or  may  hereafter  be  es- 
tablished for  the  better  government  of  the 
Na\y,"  etc.  That  corps  thus  in  some  respects 
became  still  more  closely  identified  \vith  the 
Navy.     (Wilkes  v.  Dinsrnan,  7  How._,  89.) 

The  Marine  Corps  occupies  a  position  inter- 
mediate in  some  respects  between  the  Army 
and  the  Na^'y.  (See  sees.  1616,  1619,  1620, 
and  1621,  R.  S.)  It  would  thus  seern  to  be, 
to  some  extent,  an  independent  organization. 
There  are  several  sections  of  the  Revised  Stat- 
utes which  refer  to  it  distinctively,  apart  from 
the  naval  ser^ice  (see  sees.  1551,  1596,  1600, 
1609,  1612,  1617).  Notwithstanding  this  inter- 
mediate character  of  the  Marine  Corps,  and  these 
several  proAdsions  allying  it  in  several  respects 
with  the  military  ser\ice,  held  that  is  it  properly 
classed  ^^dth  and  is  a  part  of  the  naval  service 
of  the  United  States.  (In  re  Doyle,  18  Fed. 
Rep.,  369,  citing  1  Op.  Atty.  Gen.,  381;  11  Op. 
Atty.  Gen.,  100;  10  Op.  Atty.  Gen.,  118,  129; 
In  re  Bailey,  2  Taney,  200.) 

In  various  acts  of  Congress  making  appro- 
priations the  Marine  Corps  are  frequently  re- 
ferred to  as  a  part  of  the  naval  ser\ice,  and  are 
sometimes  described  as  "marines  of  the  United 
States  Navy"  (see  10  Stat.,  100;  22  Stat.,  472, 
479,  589,  284).  In  the  revision  of  the  stat- 
utes, the  Marine  Corps  is  provided  for  by  chap- 
ter 9  of  Title  XV,  "The  Navy,"  while  "The 
Army"  is  the  subject  of  Title  XIV.  (In  re 
Doyle,  18  Fed.  Rep.,  369.) 

The  military  establishment  of  this  country 
is  divided  by  the  general  laws  of  the  United 
States  into  the  Army  and  the  Navy,  and  over 
each  of  these  one  of  the  great  heads  of  depart- 
ments, called  secretaries,  is  appointed  to  pre- 
side, to  manage  and  to  administer  its  affairs. 
The  ^larine  Corps  is  a  military  body,  designed 
to  perform  military  services;  and  while  they 
are  not  necessarily  performed  on  board  ships, 
their  active  service  in  time  of  war  is  chiefly  in 
the  NaA^,  and  accompanying  or  aiding  naval 
expeditions.  In  time  of  peace  they  are  lo- 
cated in  navy  yards,  mainly,  although  occa- 
sionally they  may  be  used  in  forts  and  arse- 
nals belonging  more  immediately  to  the  Army. 
The  statutes  of  the  United  States,  in  prescribing 
the  duties  which  they  may  be  required  to  per- 
form, have  not  been  very  clear  in  any  expres- 
sion which  goes  to  show  now  far  these  services 
are  to  be  rendered  under  the  control  of  the 
ofRcera  of  the  Navy  or  of  the  Army.  It  is  clear 
that  they  may  be  ordered  to  service  in  either 
branch;  but  taking  all  these  statutes  and  the 
practice  of  the  Government  together,  held  that 
they  are  a  military  body,  primarily  belonging 


to  the  Navy  and  under  the  control  of  the  head 
of  the  naval  department,  ^\-ith  liability  to  be 
ordered  to  ser\dce  in  connection  with  the  Army 
and  in  that  case  under  the  command  of  Army 
officers.     (U.  S.  v.  Dunn,  120  U.  S.,  249.) 

It  must  be  conceded  that  the  Marine  Corps,  a 
military  body  in  the  regular  service  of  the 
Tnited  States,  occupies  something  of  an  anoma- 
lous position,  and  is  often  spoken  of  in  statutes 
which  enumerate  "the  Army,  the  Navy,  and 
the  Marine  Corps,"  or  "the  Army  and  the 
IMarine  Corps,"  or  "the  NaA"\'  and  the  Marine 
Corps,"  in  a  manner  calculated  and  intended 
to  point  out  that  it  is  not  identical  mth  either 
the  Army  or  the  Navy.  And  this  argument  is 
the  one  very  much  pressed  to  show  that  service 
in  the  Marine  Corps  is  not  serWce  in  the  Army 
or  in  the  Navy.  On  the  other  hand,  the 
services  rendered  by  that  corps  are  always  of  a 
military  character,  and  are  rendered  as  part  of 
the  duties  to  be  performed  by  either  the  Army 
or  the  Navy.  If  there  are  services  prescribed 
for  that  corps  by  the  statutes  of  the  United 
States,  or  the  regulations  of  either  the  Army 
or  the  Navy,  which  are  not  performed  in  imme- 
diate connection  with  the  Army  or  the  Navy, 
and  under  the  control  of  the  heads  of  the  Army 
or  Navy,  either  civil  or  military,  the  court  is 
not  aware  of  them.  (U.  S.  v.  Dunn,  120  U.  S., 
249.) 

The  provisions  of  the  Revised  Statutes  (sees. 
1599  1600,  1613,  1614,  1615,  1616,  1621,  and 
1623),  bringing  together  the  enactments  of 
Congress  on  the  subject  of  the  Marine  Corps, 
show  that  the  primary  position  of  that  body  in 
the  military  service  is  that  of  a  part  of  the  Navy, 
and  its  chief  control  is  placed  under  the  Secre- 
tary of  the  Navy,  there  being  exceptions  when 
it  may,  by  order  of  the  President  or  some  one 
ha\'ing  proper  authority,  be  placed  more  imme- 
diately, for  temporary  duty,  with  the  Army 
and  under  the  command  of  superior  Army 
officers.     (U.  S.  v.  Dunn,  120  U.  S.,  249.) 

Whatever  view  may  be  taken,  the  Marine 
Corps  can  not  be  considered  as  a  distinct  mili- 
tary organization,  independent  of  the  depart- 
ments of  the  Army  and  Navy,  and  under  the 
supervision  and  control  of  neither  of  them, 
having  no  superior  outside  of  its  own  officers 
except  the  President.  While  it  may  be  true 
that  it  is  not  so  exclusively  a  part  of  the  Navy 
as  ships  and  navy  yards  are,  yet  its  general 
supervision  and  control  remain  with  the  Navy 
Department.     (U.  S.  v.  Dunn,  120  U.  S.,  249.) 

The  statutes  relating  to  the  Marine  Corps,  and 
decisions  of  the  Supreme  Court  of  the  United 
States,  reviewed  and  held:  "These  provisions, 
together  with  many  others  that  might  be  cited , 
indicate  beyond  doubt  that  the  Marine  Corps 
in  the  contemplation  of  Congress  constitutes  a 
constituent  part  of  the  naval  serWce  of  the 
country,  subject  to  the  laws  and  regulations 
that  govern  that  arm  of  the  service,  and  this,  we 
think,  has  been  so  held  by  the  Supreme  Coiut 
of  the  United  States."  (Elliott  v.  Harris,  24 
App.  D.  C,  11;  file  10245-03;  followed  and 
applied  by  Navy  Department  Aug.  19,  1913, 
file  26251-6297:  4&5;  compare,  McCalla  v. 
Facer,  144  U.  S.,  61,  noted  under  sec.  1418, 
R.  S.) 

The  military  establishment  of  the  United 
States  consists  of  three  principal  organizations, 


958 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1621. 


the  Army,  the  NaVy,  and  the  Marine  Corps. 
Each  has  an  organization  distinct  from  that  of 
the  others,  as  plainly  appears  in  the  Revised 
Statutes;  and  each  is  the  subject  of  distinct 
annual  appropriations  by  Congress.  (19  Op. 
Attv.  Gen.,  616,  618,  619.') 

The  organization  of  the  Marine  Corps  is  as- 
similated to  that  of  the  Army,  but  its  sphere  of 
duty  is  mostly  on  board  ships  or  at  naval  sta- 
tions on  land,  and  it  may  be  called  the  police 
of  the  Na\^;  while  on  the  other  hand  it  is 
always  liable  to  be  ordered  to  ser\dce  in  con- 
junction ^\ith  the  Army,  and  is  subject  to  the 
Articles  of  War  or  the  Articles  for  the  Govern- 
ment of  the  ]Na\y,  according  as  it  serves  with 
the  one  or  the  other  of  these  branches  of  the 
ser^-ice.     (19  Op.  Atty.  Gen.,  616,  618,  619.) 

That  the  Marine  Corps  has  a  closer  affinity 
■with  the  Na\^  than  ■with  the  Army  is  manifest 
both  fi'om  its  designation  and  from  section  1621 
of  the  Re\-ised  Statutes.  According  to  this 
section,  the  ser\'ice  of  the  Marine  Corps  with 
the  Navy  is  its  usual  and  regular  ser-vice,  while 
that  "with  the  Army  is  unusual  and  exceptional. 
This  view  was  substantially  adopted  by  the 
Supreme  Court  in  the  case  of  United  States  v. 
Dunn  and  Wilkes  v.  Dinsman,  above  noted. 
(19  Op.  Atty.  Gen.,  616,  618,  619.) 

The  Marine  Corps,  though  a  distinct  organiza- 
tion from  the  Army  or  Na\'j^  is  nevertheless 
subject  to  the  laws  and  regulations  for  the  gov- 
ermnent  of  the  Na"vy,  except  when  detached 
for  ser\dce  "with  the  Army  by  order  of  the  Pres- 
ident (sec.  1621,  R.  S.).  In  relation  to  rank, 
the  officers  of  the  Marine  Corps  shall  be  on  the 
same  footing  as  officers  of  similar  gi'ades  in  the 
Army  (sec.  1603).  And  they  shall  take  the 
same  oath  prescribed  for  officers  and  enlisted 
men  of  the  Army  (sec.  1609).  By  section  1622, 
commissioned  officers  of  the  Marine  Corps  shall 
be  retired  in  like  cases,  etc.,  as  officers  of  the 
Army,  except  as  provided  in  section  1623. 
The  noncommissioned  officers,  privates  and 
musicians  of  the  Marine  Corps  are,  by  section 
1615,  entitled  to  receive  one  Navy  ration  daily, 
and  by  section  1617  it  is  provided  that  no  offi- 
cer of  the  Marine  Corps  shall  exercise  command 
over  any  navy  yard  or  vessel  of  the  United 
States.  By  section  1616  the  officers  and  en- 
listed men  of  the  corps  are  subject  to  duty  on 
board  the  anned  vessels  of  the  United  States; 
and  by  section  1619  the  corps  shall  be  liable 
to  do  duty  in  the  forts  and  garrisons  of  the 
United  States  or  other  duty  on  shore,  etc. 
Terms  of  enlistment  in  the  Army,  NaA^y,  and 
Marine  Corps  are  prescribed  by  sections  1119, 
1418,  and  1608,  respectively.  In  Wilkes  v. 
Dinsman  (above  noted),  the  court,  construing 
act  of  March  2,  1837  (5  Stat.,  157),  pro\ddingfor 
enlistments  in  the  Navy,  held  that  the  words 
"any  person  enlisted  for  the  Na^y"  includes 
marines;  see  also.  United  States  v.  Dunn  (above 
noted).  It  \^ill  thus  be  seen  that  the  status  of 
the  Marine  Corps  is  a  variable  one,  and  though 
subject  to  the  laws  and  regulations  established 
for  the  government  of  the  Nav>%  except  when 
detached  by  the  President  for  serAdce  with  the 
Army,  they  are,  in  relation  to  rank,  oath,  pay, 
and  retirement,  assimilated  to  the  Army  and 
subject  to  the  direction  of  the  President  they 
may,  under  section  1619,  be  detached  for  service 


with  the  Army  anywhere  in  the  United  States. 
(Walton  V.  U.  S.,  31  Ct.  Cls.,  196.) 

A  perusal  of  ReAdsed  Statutes,  section  1612, 
1621,  and  1622,  Arill  indicate  the  somewhat 
anomalous  position  occupied  by  the  Marine 
Corps  in  the  military  service.  It  looks  to  the 
Army  statutes  for  its  rate  of  pay  and  to  the  Na\'y 
for  its  laws  and  regulations,  except  where  de- 
tached for  service  A\dth  the  Army,  and  the  same 
uncertainty  as  to  its  position  runs  all  through 
the  statutes  relating  to  the  Army  and  Navy. 
Nevertheless,  generally  speaking  and  as  its 
name  indicates  the  Marine  Corps  is  a  part  of  the 
Nav>'.  It  is  that  part  of  the  Navy  which  may 
on  occasions  become  a  part  of  the  Army.  Tlie 
courts  have  kept  this  fact  in  mind  in  the  con- 
struction of  statutes  relating  to  the  military 
serAdce.     (Jonas  v.  U.  S.,  50  Ct.  Cls.,  281.) 

The  Marine  Corps  is  clearly  organized  under 
the  authority  conferred  by  clause  13  of  section 
8  of  Article  I  of  the  Constitution,  which  de- 
clai'es  that  the  Congress  "shall  have  power  to 
provide  and  maintain  a  Navy."  and  it  is  gov- 
erned under  so  much  of  the  authority  conferred 
by  clause  14  of  the  same  section  as  empowers 
the  Congress  "to  make  rides  for  the  government 
and  regulation  of  the  ■*  *  *  naval  forces." 
This  conclusion  is  established  by  the  decision 
of  the  Supreme  Court  in  Wilkes  v.  Dinsman 
(above  noted ),  in  which  it  was  determined  that 
a  private  in  the  Marine  Corps  was  a  "person 
enlisted  for  the  Navy  "  in  the  language  of  the 
act  under  consideration  in  that  case.  That 
decision  was  cited  with  approval  in  United 
States  V.  Dunn  (above  noted).  These  two 
decisions  support  the  statement  made  by  the 
Attorney  General  while  Secretaiy  of  the  Navy, 
that  "its  legal  status  is,  beyond  a  doubt  or 
question,  a  part  of  the  naval  forces  of  the 
countiy,  if  not  a  part  of  the  Navy  in  its  strictest 
sense."     (27  Op.  Atty.  Gen.,  90.) 

The  Marine  Corps  has  a  composition  and 
primary  organization  distinct  from  those  of 
both  the  Army  and  the  Navy,  pursuant  to 
chapter  9,  Title  XV  of  the  Revised  Statutes; 
but  that  chapter  itself  is  a  part  of  the  title  con- 
cerning the  Naxy.  In  United  States  v.  Dunn 
(noted  above),  the  Supreme  Court  states  what 
the  Revised  Statutes,  section  1621,  makes  alto- 
gether clear;  that  the  Marine  Corps  is  a  part  of 
the  naval  establishment,  and  is  subject  to  the 
laws  and  regulations  for  the  government  of  the 
Navy  save  in  the  single  case  when  it  has  been 
detached  for  service  with  the  Army  by  order 
of  the  President.  Nothing  but  such  order  by 
the  President  or  by  his  authority  can  alter  the 
ordinary  connection  of  the  Marine  Corps  with 
the  Navy  and  connect  that  corps  with  the 
Army.     (28  Op.  Atty.  Gen.,  15,  17.) 

The  statutes  recognize  the  Marine  Corps  as 
part  of  the  Navy;  the  Marine  Corps  is  carried 
upon  the  Navy  Register,  and  the  Isavy  Regu- 
lations assign  their  duties,  except  where  de- 
tached for  duty  in  the  Armv.  (Harllee  v. 
U.  S.,  51  Ct.  Cls.,  342.  Compare  Reid  v.  U.  S., 
18  Ct.  Cls.,  625.) 

The  recent  trend  of  legislation,  and  depart- 
mental regulations,  as  well  as  decisions  of  the 
courts  and  executive  departments,  has  been  in 
the  dii'ection  of  fixing  the  status  of  the  Marine 
Corps  even  more  definitely  as  an  integral  part 


959 


Sec.  1621. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


of  the  naval  service  than  was  the  case  in  prior 
years.  (File  5252-0(1,  May  13,  l!»i5,  citing, 
inter  alia,  act  of  June  30,  1914  (38  Slat.,  403). 
"that  hereafter  the  numl)er  of  enlisted  men  of 
the  Navy  and  Marine  Corps  provided  for  shall 
be  construed  to  mean  the  daily  average  num- 
ber of  enlisted  men  in  the  naval  service  during 
the  liscal  year.") 

There  is  properly  speaking  no  warrant  in  law 
for  regarding  the  ]\larine  Corps  as  an  anomalous 
body,  intermediate  between  the  Army  and 
iSia\-V,  and  having  relations  ^^'ith  both.  It  is 
true  that  the  Marine  Corps  is  assimilated  to 
tlie  Army  in  some  respects,  as  by  sections  1604, 
IGOi),  Hil2, 1622  of  the  Revised  Statutes,  and  the 
act  of  July  28,  1892  (27  Stat.,  321);  but  its  legal 
status  is  beyond  a  doubt  or  question  a  part  of 
the  naval  forces  of  the  country,  if  not  a  part  of 
the  Navy  in  the  strictest  sense.  (File  21277, 
Mar.  31, 1906;  quoted  in  27  Op.  Atty.  Gen.,  90.) 

GiA-ing  to  the  word  "detached"  in  section 
1621,  the  same  appropriate  significance  which 
it  has  in  section  1616,  it  becomes  evident  that 
service  Avith  the  Army  and  consequent  subjec- 
tion to  the  Articles  of  ^^'ar  is  regarded  as  an 
exceptional  and  al)normal  condition  for  the 
Marine  Corps,  as  clearly  as  it  would  be  for  a 
force  of  blue-jackets  landed  and  placed  tem- 
porarily under  the  orders  of  an  Army  officer. 
(File  21277,  Mar.  31,  1906.) 

Status  when  detached  for  service  with 
the  Array.— The  law  is  well  settled  that  mem- 
bers of  the  Marine  Corps  detached  by  the  Pres- 
ident for  service  with  the  Army  are,  while  so 
serving,  a  part  of  the  Army  and  not  under  naval 
jurisdiction.     (Inle  26250-2335,  Dec.  18,  1920. j 

Section  1621  is  explicit  in  sajdng  that  when 
detached  by  order  of  the  President  for  service 
with  the  Ai-my  the  Marine  Corps  shall  be  sub- 
ject to  the  rules  and  articles  of  war  prescribed 
for  the  government  of  the  Army;  and  then,  of 
course,  it  becomes  a  "corps  of  the  Army" 
within  the  scope  of  the  122d  article  of  war.  (28 
Op.  Atty.  Gen.,  15,  19;  see  note  to  sec.  1342, 
R.  S.) 

Where  the  President  should,  by  order,  incor- 
porate it  with  an  army  for  any  given  service  on 
land,  its  identity  as  a  Marine  Corps,  pro  hac 
vice,  would  be  lost  in  that  of  the  Army,  and 
the  whole  body  become,  for  the  time,  one.  (1 
Op.  Atty.  Gen.,  380.) 

Court-martial  jurisdiction. — See  article  2 
of  tlie  Articles  of  War,  quoted  above  under  this 
section. 

Wliether  an  officer  of  the  IMarine  Corps  is  li- 
able to  be  tried  by  a  naval  court-martial  or  one 
composed  of  officers  of  the  Army  will  depend 
upon  whether  the  alleged  misconduct  took 
place  while  he  was  emploved  in  the  land  serv- 
ice.    (5  Op.  Atty.  Gen.,  706.) 

Courts-martial  of  marine  officers  stationed  on 
shore  and  convened  under  the  Articles  of  War 
may  try  and  sentence  to  suffer  corporeal  pun- 
ishment marines  who  have  deserted  from  the 
public  ships,  although  it  would  have  been  oth- 
erwise had  the  offense  been  committed  while 
the  marines  were  employed  in  any  service  upon 
the  land,  as  in  the  latter  case  the  abolition  of 
corporeal  punishment  by  act  of  May  16,  1812, 
in  reference  to  the  Army  would  be  applicable 
and  exclude  its  infliction  upon  marines.  (1 
Op.  Atty.  Gen.,  187.) 


Under  Revised  Statutes,  section  1621,  a  pri- 
vate in  a  brigade  of  the  Marine  Corps  is  not, 
while  that  brigade  is  detached  for  service  with 
the  Army  by  order  of  the  President,  subject  to 
the  laws  and  regulations  of  the  Navy,  and  a 
naval  court-martial  has  no  jurisdiction  over 
him  based  on  an  act  constituting  an  offense 
both  by  the  rules  and  regulations  of  war  pre- 
scribed for  the  government  of  the  Army  and 
the  laws  and  regulations  established  for  the 
government  of  the  Navy.  (U.  S.  ex  rel.  Davis 
V.  Waller,  225  Fed.  Rep.,  673.) 

Section  1621  may  be  construed  as  though  it 
read:  "The  Marine  Corps  is  subject  to  the  Ar- 
ticles of  W'ar  while  on  service  yn.{\\  the  Army  by 
order  of  the  President.  At  all  other  times  it  is 
subject  to  the  laws  and  regulations  of  the 
Navy."  (U.  S.  ex  rel.  Davis  v.  Waller,  225 
Fed."  Rep.,  673.) 

Granted  that  the  status  of  the  Marine  Corps 
was  at  first  doubtful.  It  rendered  serN-ice  at 
times  with  the  Navy  and  at  times  with  the 
Army,  without  being  definitely  or  pemianently 
attached  to  either  department.  Its  "pri- 
mary" relation  was  finally  settled  to  be  with 
the  Navy,  but  it  had  special  and  temporary 
Army  relations  when  on  ser,vice_with  the  Army. 
The  early  statutes  gave  recognition  to  this  by 
providing  that  it  should  be  subject  to  the  laws 
and  regulations  of  the  Navy,  except  when  de- 
tached by  order  of  the  President  for  service 
with  the  Army.  Later  the  statutes  added  the 
clause  contained  in  section  1621,  that  when  so 
detached  it  should  be  subject  to  the  Articles  of 
War.  This  confirms  the  conclusion  that  Con- 
gi-ess  did  not  intend  by  section  1621  that  a  ma- 
rine should  be  subject  to  trial  by  naval  court- 
martial  for  an  offense  committed  by  him  while 
detached  for  service  with  the  Army.  (U.  S.  ex 
rel.  DaA-is  r.  Waller,  225  Fed.  Rep.,  673.) 

Under  section  1621,  Revised  Statutes,  a 
marine  detached  for  service  -uith^  the  Army 
and  thereafter  returned  to  the  jurisdiction  of 
the  Navy  could  not  be  tried  by  a  naval  court- 
martial  for  an  offense  committed  by  him  while 
detached  for  service  'with  the  Army,  which  was 
a  \iolation  of  Army  Regulations.  The  same 
laws  and  regulations  which  define  the  offense 
constitute  and  designate  the  com-t  which  is  to 
trv  the  offender.  (U.  S.  ex  rel.  Davis  v.  Waller, 
225  Fed.  Rep.,  673.) 

The  fifth  regiment  of  marines  was  organized 
by  du'eetion  of  the  President  under  Confiden- 
tial Orders  28790-3,  dated  May  29, 1917,  and  was 
by  said  order  detached  for  service  with  the  Army 
in  accordance  with  section  1621,  Revised 
Statutes.  No  order  having  been  issued  de- 
taching said  regiment  from  duty  with  the  Army 
and  returning  it  to  the  jurisdiction  of  the  Navy, 
it  would  appear  that  the  Arm;^  has  jurisdiction 
to  try  a  member  of  that  regiment  by  court- 
martial  for  offenses  alleged  to  have  been  com- 
mitted by  him  while  an  inmate  of  an  Army 
hospital  in  this  country  to  which  he  had  been 
transferred  after  his  return  to  the  United 
States,  having  in  the  meantime  been  under 
treatment  in  naval  hospitals  in  Norfolk  and 
Brookhm.  The  said  private,  not  ha\  ing  been 
detached  from  duty  \nth  the  Army  and  re- 
turned to  naval  jurisdiction,  continued  subject 
to  Armv  jurisdiction.  (File  27228-547,  May 
26,  1919") 


960 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1621. 


By  War  Department  General  Orders  No.  96, 
July  30,  1919,  it  was  provided:  "By  direction 
of  the  President,  it  is  ordered  that  all  officers 
and  enlisted  men  of  the  Marine  Corps  who  have 
heretofore  been  detached  for  service  ■with  the 
Army  in  connection  with  the  war  against 
Germany  and  her  allies,  and  who  shall  hereafter 
arrive  in  the  Ignited  States  shall,  upon  report- 
ing at  any  station,  post,  camp,  garrison,  hospital, 
office,  or  other  unit  or  organization  of  the  Navy 
or  Marine  Corps  for  duty,  forth\vith  stand 
detached  from  service  with  the  Army  and 
shall  revert  to  their  former  status  of  duty  with 
the  Navy.  All  officers  and  enlisted  men  of 
the  Marine  Corps  who  ha^-e  been  detached  as 
aforesaid  and  who  \\a\e  heretofore  arrived  in 
the  United  States  shall  stand  detached  from 
service  with  the  Army  from  this  date,  provided 
they  have  not  already  been  returned  to  duty 
^\'ith  the  Navy.  Officers  and  enlisted  men  of 
the  Marine  Corps  who  are  patients  in  Army 
hospitals  shall  not  come  under  the  provisions 
of  this  order  until  they  shall  have  been  dis- 
charged therefrom . ' ' 

Jurisdiction  to  review  proceedings  of 
Army  board. — The  naval  authorities  are 
without  jurisdiction  to  review  the  proceedings 
or  action  of  the  Army  authorities  in  the  case 
of  a  private  in  the  Marine  Corps  who  died 
August  29,  1919,  while  serA-ing  with  the  Amer- 
ican Forces  in  France,  an  Army  board  having 
convened  on  September  29,  1919,  and  reported 
that  his  death  was  in  the  line  of  duty  and  not 
the  result  of  his  own  misconduct,  vvhich  said 
report  was  approved  by  the  convening  author- 
ity and  forwarded  to  the  commanding  general, 
headquarters  American  Forces  in  France,  by 
whom  it  was  transmitted  to  the  Adjutant 
General  of  the  Army  and  thence  to  the  Major 
General  Commandant  of  the  Marine  Corps. 
At  the  time  of  his  death,  said  private  had  not 
been  returned  to  the  jurisdiction  of  the  Navy 
as  he  was  still  mth  the  American  Forces  in 
JYance  and  did  not  return  to  the  United  States. 
(File  26250-2335,  Dec.  18,  1920.  See  War 
Dept.  G.  O.  96,  July  30,  1919,  quoted  above 
under  "Court-martial  jurisdiction. ") 

Status  when  cooperating  or  traveling 
with  Army. — The  Articles  of  War  do  not 
operate  to  give  the  officers  of  the  jNIarine  Corps 
any  authority  to  exercise  command  in  the 
Army  unless  they  have  been  detached  for 
ser\ice  with  the  Army  by  order  of  the  President 
and  are  still  serving  with  the  Army  under  that 
order.  (28  Op.  Atty.  Gen.,  15;  see  note  to 
sec.  1342,  R.  S.,  as  to  art.  120  A.  W.) 

"^Tien  any  part  of  the  Marine  Corps  is  present 
with  the  Army  and  engaged  in  a  common 
enterprise  with  it,  without  an  order  of  the 
President  detaching  it  for  service  with  the 
Army,  the  case  is  one  of  cooperation  and  not  of 
incorj)oration ;  and  in  such  a  case  no  officer  of 
the  Marine  Corps  can  exercise  command  over 
the  Army  any  more  than  a  naval  officer  can 
when  some  part  of  the  Navy  is  cooperating  with 
the  Army;  and  the  converse  is  true  of  Army 
officers  cooparating  vA\\i  the  Marine  Corps. 
The  Marine  Corps  is  a  part  of  the  Naval  Estab- 
lishment, and  is  subject  to  the  laws  and  regula- 
tions for  the  government  of  the  Navy  save  in  the 
single  instance  when  it  has  been  detached  for 
serA-ice  with  the  Army  by  order  of  the  Presi- 


dent.    (28  Op.  Atty.  Gen.,  15;  see  notes  to  sees. 
1342  and  1466,  R.  S.) 

Enlisted  men  of  the  Navy  and  Marine  Corps, 
while  being  transported  on  board  an  Army 
transport  are  subject  to  the  rules  and  regula- 
tions of  said  transport,  but  are  not  amenable  to 
trial  by  Army  court-martial  unless  attached 
to  the  Army  by  Executive  order.  (File  26287- 
534,  June  15,  1910.) 

The  statutes  are  clear  that  marines  are  not 
subject  to  the  Articles  of  War  unless  detached 
for  service  with  the  Army  by  order  of  the  Pres- 
ident. It  is  equally  clear  that  officers  and  en- 
listed men  of  the  Navy  are  not  under  any  cir- 
cumstances subject  to  the  Articles  of  War 
except  while  serving  with  marines  detached  for 
service  with  the  Army  by  order  of  the  President, 
as  provided  in  the  act  of  August  29,  1916 
(quoted  above,  under  this  section).  (Op. 
J.  A.  G.,  Army,  Nov.  19,  1920,  No.  250401, 
Navy  Dept.  file  No.  26287-7305:1.) 

Officers  and  enlisted  men  of  the  Navy  and 
Marine  Corps  traveling  on  Army  transports, 
but  not  dstached  for  service  with  the  Army, 
although  subject  to  Army  Transport  Regula- 
tions, are  not  subject  to  trial  by  Army  courts- 
martial.  (Op.  J.  A.  G.,  Army,  Nov.  19,  1920, 
No.  250401,  Navy  Dept.  file  No.  26287-7305:1.) 

Under  first  views  the  Marine  Corps  is  to  be 
taken  as  an  adjunct  of  the  Navy;  nor  can  it  be 
supposed  that  the  mere  fact  of  its  bodily  pres- 
ence upon  the  law  would  be  sufficient  to  divest 
the  service  which  may  have  been  there  per- 
formed of  the  substantial  characteristics  of 
naval  service.  How  long  soever  such  bodily 
presence  may  have  been  continued,  it  may 
still  well  be  conceived  to  have  brought  with  it 
constructively  but  essentially  nothing  but 
the  fulfillment  of  naval  duty.  (5  Op.  Atty. 
Gen.,  706.) 

What  laws  and  regulations  are  included 
by  section  1621. — The  term,  "the  better  gov- 
ernment of  the  Navy,"  as  used  in  the  law  (now 
embodied  in  sec.  1621,  R.  S.),  need  not  be 
restricted  to  mere  punishment,  or  to  courts- 
martial,  but  may  include  any  provision  by  law 
intended  to  secure  the  safety  of  the  crew  and 
vessel,  and  insure  due  subordination  and  sound 
discipline  in  any  exigency  of  the  public  service. 
(Wilkes  V.  Dinsman,  7  How.,  89,  holding  that 
the  law  now  embodied  in  sec.  1422,  R.  S., 
affecting  terms  of  enlistment  in  the  Navy,  was 
applicable  to  Marine  Corps.) 

The  obvious  purpose  of  section  1621,  Revised 
Statutes,  is  to  provide  rules  for  the  discipline 
of  the  Marine  Corps  in  the  different  spheres  of 
duty  (military  and  naval)  in  which  it  is  liable 
to  serve.  Its  language  does  not  warrant  the 
inference  that  it  was  intended  thereby  to  sub- 
ject that  corps  to  any  other  laws  and  regulations 
of  the  Navy  than  such  as  relate  to  discipline 
and  its  maintenance.  Within  this  category 
section  1493,  Revised  Statutes  (relating  to  ex- 
aminations for  promotion  in  the  Navy),  does 
not  fall.  (17  Op.  Atty.  Gen.,  117,  118.  See 
act  Aug.  29,  1916,  39  Stat.,  611,  extending  sec. 
1493,  R.  S.,  to  the  Marine  Corps;  and  see  note 
to  sec.  1599,  R.  S.,  under  "Laws  relating  to 
promotion  construed.") 

The  act  of  August  3,  1861,  section  17,  author- 
izing the  Secretary  of  the  Navy  to  assemble 
boards  for  the  retirement  of  marine  officers, 


961 


Sec.  1621. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


does  not  provide  that  the  l)oard  shall  consist 
of  officers  of  that  corps,  but  simply  that  it  shall 
consist  of  commissioned  officers;  this  being  a 
la\s-  for  the  government  of  the  Navy  \\-ithin 
the  meaning  of  the  a<  t  of  1834  (sec.  1621 ,  R.  S.), 
hid  that  the  Pecri^tary  of  the  Navy,  under  the 
President,  has  full  power  to  organize  boards 
for  the  retirement  of  marine  officers  from  officers 
of  the  Navy  of  senior  rank,  under  section  17  of 
said  act  of  iSGl .    (10  Op.  Atty.  Gen.,  129, 130.) 

The  effect  of  the  act  of  June  30,  1834,  section 
2  (sec.  1621,  R.  S.),  is  to  subject  this  corps  to 
the  operation  of  laws  for  the  government  of  the 
Na\y,  except  where  by  special  enactment  they 
are  made  subject  to  different  laws,  as,  for 
instance,  by  the  act  of  June  30,  1834,  section  5, 
relating  to  pav  and  allowances.  (10  Op.  Atty. 
Gen.,  129.) 

Navy  laws  held  appUcahle  to  Marine 
Corps. — See  notes  to  sections  761,  1418,  and 
1422,  Re\'ised  Statutes,  as  to  enlistments  in  the 
Marine  Corps;  note  to  section  1596,  under 
" Computing  number  of  officers;"  and  note  to 
section  1599,  under  ''Appointment  of  former 
student  at  Naval  Academy." 

The  act  of  Congress  passed  ]\Iarch  2,  1837  (5 
Stat.,  153),  authorized  a  reenlistment  of  marines 
to  serv^e  during  the  cruise  then  about  to  take 
place,  they  being  included  in  the  denomina- 
tion of ' '  persons  enlisted  for  the  Navy . ' '  Under 
the  same  act  the  commander  of  a  squadron  had 
power  to  detain  a  marine  after  the  term  of  his 
enlistment  expired,  if  in  the  opinion  of  the 
commander  public  interest  required  it.  (Wilkes 
V.  Dinsman,  7  How.,  89.  See  sec.  1422,  R.  S., 
and  note  thereto.) 

At  the  time  of  enlistment  the  Marine  Corps 
being  subject  to  such  laws  and  regulations  as 
might  at  any  time  be  established  for  the  better 
government  of  the  Navy,  it  was  a  part  of  the 
contract  of  enlistment  that  the  marine  in  this 
case  should  obey  them  whenever  passed;  it 
was,  therefore,  no  objection  to  such  laws  that 
they  were  passed  after  his  entering  the  service. 
(Wilkes  V.  Dinsman,  7  How.,  89.) 

The  limitations  in  sections  1418  and  1419, 
Revised  Statutes,  undoubtedly  apply  to  en- 
listments in  the  ISIarine  Corps,  under  section 
1608.  (In  re  Doyle,  18  Fed.  Rep.,  369;  see 
notes  to  sections  cited.) 

The  Marine  Corps  is  part  of  the  naval  service, 
in  which  minors  over  18  years  of  age  may  be 
enlisted,  under  sections  1608  and  1418,  1419, 
1420,  and  1624  (art.  19),  without  the  consent  of 
theu"  parents  or  guardians.  (In  re  Doyle,  18 
Fed.  Rep.,  369;  see  also  Elliott  v.  Hanis,  24 
App.  D.  C,  11,  followed  bv  Navy  Dept.,  Aug. 
19,  1913,  file  26251-6297:  4&  5,  with  reference 
to  unauthorized  detention  of  enlisted  men  of 
the  Marine  Corps  after  expiration  of  enlistment 
to  make  good  time  lost  by  unauthorized  absence 
as  pro% ided  for  in  Army  laws.) 

Sei"vice  by  an  officer  of  the  Navy  as  an  en- 
listed man  in  the  Marine  Corps  is  to  be  credited 
to  him  in  calculating  his  longevity  pay,  imder 
the  act  of  March  3,  1883  (22  Stat.,  472,  473), 
pro^iding  that  "all  officers  of  the  Navy  shall 
be  credited  with,  the  actual  time  they  may  have 
served  as  officers  or  enlisted  men  in  the  regular 
or  volimteer  Army  or  Navv,  or  both,"  etc. 
(U.  S.  V.  Dunn,  120  U.  S.,  249.) 


The  naval  appropriation  act  of  August  22, 
1912  (37  Stat.,  328),  authorizing  enlisted  men  of 
the  Navy  by  their  voluntary  agreement  to  ex- 
tend their  enlistments  for  a  period  of  one,  two, 
three,  or  four  years,  held  applicable  to  enlisted 
men  of  the  Marine  Corps.  (File  26507-214  :  8, 
Apr.  5,  1915,  following  Wilkes  v.  Dinsman, 
above  noted.     See  also  note  to  sec.  1418,  R.  S.) 

The  act  of  June  30,  1914  (38  Stat.,  410),  au- 
thorizing appointments  to  the  Naval  Academy 
from  "enlisted  men  of  the  Navy,"  held  to  au- 
thorize such  appointments  to  fee  made  from 
enlisted  men  of  the  Marine  Corps.  (File  5252- 
66,  May  13,  1915.) 

The  provisions  contained  in  the  naval  appro- 
priation act  of  March  3,  1915  (38  Stat.,  940), 
c^'eating  a  "United  States  naval  reserve,"  did 
not  authorize  the  creation  of  a  Marine  Corps 
reser\e,  for  the  reason  that  several  pro\ision3 
contained  in  said  legislation  clearly  manifested 
that  Congress  did  not  intend  to  include  the 
Marine  Corps  therein.  (File  28550-1  :  3,  June 
15,  1915.) 

Section  1563,  Re\ised  Statutes,  which  forms 
part  of  chapter  8  of  Title  XV,  authorizing  ad- 
vances of  pay  to  ' '  persons  in  the  naval  ser\ice, ' ' 
has  been  invariably  construed  by  the  account- 
ing officers  as  applying  to  marine  officers.  (See 
Reidr.  U.  S.,  18  Ct.  Cls.,  625.) 

Navy  laws  held  not  apphcable  to  Marine 
Corps.— An  officer  in  the  Marine  Corps  attached 
to  a  seagoing  vessel  is  not  entitled  to  the  ration 
allowed  by  Revised  Statutes,  section  1578,  to  a 
naval  officer  so  attached.  (Reid  v.  U.  S.,  18 
Ct.  Cls.,  625.) 

The  term  "Navy  bands"  as  used  in  the  stat- 
ute under  consideration,  held  not  to  include  the 
Marine  Band.  (27  Op.  Atty.  Gen.,  90,  noted 
under  sec.  1613,  R.  S.) 

The  act  of  February  9,  1889  (25  Stat.,  657), 
"to  provide  for  the  deposit  of  savings  of  seamen 
of  the  United  States  Navy,"  does  not  extend  to 
enlisted  men  of  the  Maiine  Corps.  (19  Op. 
Atty.  Gen.,  616;  see  also  25  Op.  Atty.  Gen., 
190.) 

For  other  cases,  see  note  to  section  1418 ,  Re- 
vised Statutes,  imder  "Enlistments  in  the  Ma- 
rine Corps  not  governed  by  Navy  laws";  and 
see  note  to  section  1422,  Revised  Statutes,  with 
respect  of  maiine  officers  for  Civil  War  service. 

Intention  of  Congress. — In  many  cases 
statutes  relating  to  the  Navy  are  obviously  in- 
applicable to  the  Marine  Corps;  either  because 
of  express  language  used  therein  or  because  of 
the  manifest  purpose  of  Congress  as  apparent 
from  a  reading  of  the  law  itself  or  from  a  con- 
sideration of  the  conditions  and  circumstances 
surrounding  its  enactment.  The  word  ' '  Navy  " 
may  be  given  an  extended  meaning  to  embrace 
the  Marine  Corps,  as  has  been  done  in  many 
cases,  wliile  on  the  other  hand  the  facts  of  a 
particidar  case  may  be  such  as  to  show  that  it 
was  used  in  a  more  restricted  sense  as  referring 
to  the  Navy  proper,  as  has  likewise  been  held 
in  many  cases.  Accordingly,  each  statute 
must  be  construed  with  reference  to  specific 
questions  arising  thereunder;  and  the  _word 
"Navy"  thus  being  susceptible  of  two  inter- 
pretations, it  is  always  permissible  to  consider 
the  purpose  and  spirit  of  the  law,  and  the  object 


962 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1622. 


have  not  the  right  or  privilege  of  making  such 
deposits  with  a  paymaster  of  theii"  branch  of 
the  service.     (25  Op.  Atty.  Gen.,  190.) 

If  the  act  of  February  9,  1889  (25  Stat.,  657), 
pro\dding  for  deposits  by  enlisted  men  of  the 
Navy,  could  not  properly  be  construed  to  apply 
to  the  Marine  Corps,  which  is  primarily  a  com- 
ponent part  of  the  Navy,  the  sections  of  the 
Revised  Statutes  authorizing  such  deposits  by 
enlisted  men  of  the  Army  can  not  be  so  con- 
strued.    (25  Op.  Attv.  Gen.,  190.) 

The  act  of  March  3,  1885  (23  Stat.,  350),  re- 
lating to  reim1)ursement  for  losses  of  personal 
effects  by  persons  in  the  Army,  does  not  apply 
to  the  Marine  Corps,  which  is  governed  in  this 
respect  by  the  act  of  March  2,  1895  (28  Stat., 
962),  relating  to  losses  bv  persons  in  the  naval 
service.     (Harilee  v.  U.  S.,  51  Ct.  Cls.,  342.) 

The  Army  appropiiation  act  of  April  27,  1914 
(38  Stat.,  353,  354),  providing  that  no  enlist-, 
ment  shall  be  regarded  as  complete  until  the 
soldier  shall  have  made  good  any  time  in  excess 
of  one  day  lost  by  unauthorized  absences,  does 
not  apply  to  the  "Marine  Corps,  although  a  pro- 
vision in  the  same  paragi-aph,  as  to  forfeiture  of 
pay  in  certain  cases  of  absence  from  duty,  is 
applicable  to  the  Marine  Corps  by  virtue  of 
section  1612,  Revised  Statutes.  (Comp.  Dec, 
June  3,  1914,  160  S.  and  A.  Memo.,  3250.) 

The  provisions  of  sections  2,  3,  and  4  of  the 
actof  June  16, 1890,  entitled  "An  Act  to  prevent 
desertions  from  the  Army,  and  for  other  pur- 
poses," are  not  applicable  to  the  Marine  Corps. 
Section  2  relates  to  the  terms  of  enlistment  in 
the  Anny,  and  provides  that  soldiers  discharged 
prior  to  expiration  of  enlistment  shall  not  be 
entitled  to  certain  allowances;  section  3  pro- 
vides for  the  arrest  of  deserters  by  civil  offi- 
cers; and  section  4  authorizes  the  President  to 
permit  enlisted  men  to  purchase  their  dis- 
charges in  time  of  peace.  However,  section 
one  of  the  same  act,  relating  to  the  retention  of 
certain  pay  until  discharge,  is  applicable  to  the 
Marine  Corps  by  virtue  of  section  1612,  Re- 
vised Statutes.     (19  Op.  .Mty.  Gen.,  616.) 

Section  1216,  Revised  Statutes,  as  amended 
by  act  of  T^Iarch  29,  1892  (27  Stat.,  12),  provid- 
ing for  the  issuance  of  certificates  of  merit  to 
enlisted  men  of  the  AiTay  distinguishing  them- 
selves in  the  service,  etc.,  does  not  apply  to  en- 
listed men  of  the  ^Iarine  Corps,  who  are  en- 
titled to  the  benefits  of  a  corresponding  provi- 
sion in  section  1407,  Revised  Statutes,  as 
amended.     (24  Op.  Atty.  Gen.,  579.) 

See  United  States  v.  Freeman  (3  How.,  556), 
noted  under  section  1604,  Revised  Statutes, 
under  "Brev^et  pay  and  emoluments,"  which 
held  that  the  words  "officers  of  the  Army"  in 
an  act  of  April  16,  1818,  included  officers  of  the 
Marine  Corps;  see  also  note  to  section  1622, 
Revised  Statutes,  as  to  retirement  of  officers  for 
Civil  War  service. 


which  it  was  intended  to  accomplish,  as  indi- 
cated not  only  by  the  language  used  in  the 
statute  but  by  other  recognized  aids  to  inter- 
pretation. (File  5252-66,  May  13,  1915; 
28687-5,  Aug.  29,  1916.) 

It  does  not  follow  from  the  decisions  holding 
that  the  word  "Navn,'"  includes  the  Maiine 
Corps  that  Congi-ess  can  not  enact  any  law  with 
reference  to  the  Navy  which  does  not,  ipso  fure, 
include  the  Marine  Corps.  On  the  contrary, 
the  Navy  Department  fully  recognizes  the  fact 
that  many  laws  relating  to  the  Navy  are  not 
intended  to  include  the  Marine  Corps,  and  that 
the  question  is  largely  one  of  intent.  (File 
28687-5,  Aug.  29,  1916.) 

In  nearly  all  cases  where  Congress  intends  to 
legislate  v\ith  reference  to  the  Marine  Corps  it 
designates  it  especially,  ev^en  in  cases  where  it 
might  properly  be  held  to  be  included  by  the 
term  "Navy,"  as,  for  example,  in  the  pension 
laws,  and  the  laws  establishing  hospitals  for  the 
Navy-;  which  shows  that  Congi-ess  has  not  al- 
ways regarded  the  teiTQ  Navy^  as  a  sufficiently 
clear  designation  for  the  Marine  Corps.  (19 
Op.  Atty.  Gen.,  616,  620.) 

The  literal  sense  of  the  law  is  not  necessaiily 
its  true  sense;  for  if,  by  taking  the  law  by  its 
four  corners,  or  by  looking  at  it  in  the  Ught  of 
the  circumstances  in  which  it  was  passed,  or  by 
doing  both,  it  appears  that  its  meaning  should 
be  restricted  or  enlarged  in  order  to  cany  out 
the  intention  of  the  legislatm'e,  it  is  the  duty 
of  the  ex])ounder  to  Umit  or  amplify  that 
meaning  as  the  case  may  requii'e.  (i9  Op. 
Atty.  Gen.,  616,  618.) 

In  view  of  the  pecuhar  and  ii'regular  position 
of  the  Marine  Corps  in  the  public  service,  it  is 
not  at  all  surprising  that  instances  occur  where 
legislation  in  terms  confined  to  the  Army  and 
Navy  has  been  held  to  include  the  officers  and 
men  of  the  Maiine  Corps.  (19  Op.  Attv.  Gen., 
616,  619.) 

It  is  quite  safe  to  say  that,  in  the  absence  of 
language  or  attendant  cii'cmnstances  indicating 
different  intention,  the  term  in  a  statute, 
"officers  of  the  Navy,"  would  not  include 
officers  of  the  Marine  Corps,  and  "enlisted  men 
0  fthe  Navy  "  would  not  include  enlisted  men  of 
the  Marine  Corps.     (27  Op.  Atty.  Gen.,  90.) 

Army  laws  held  inapplicable  to  Marine 
Corps. — Section  1117,  Revised  Statutes,  pro- 
hibiting enlistment  of  any  person  under  21 
years  in  the  military  service  of  the  United 
States,  without  the  written  consent  of  his 
parents  or  guardians,  apphes  only  to  enUst- 
ments  in  the  Army,  and  does  not  include  the 
Marine  Corps.  (In  re  Dovle,  18  Feb.  Rep., 
369;  see  note  to  sec.  1418, 'R.  S.) 

Sections  130.5-1308,  Revised  Statutes,  which 
provide  for  the  deposit  \\ith  any  Army  paymas- 
ter by  any  enlisted  man  of  the  Army  of  his 
savings,  have  no  application  to  the  Marine 
Corps;  and   the    enlisted   men   of  that   corps 

Sec.  1622.  [Retirement.]  The  commissioned  officers  of  the  Marine  Corps 
shall  be  retired  in  like  cases,  in  the  same  manner,  and  with  the  same  relative 
conditions,  in  all  respects,  as  are  provided  for  officers  of  the  Army,  except  as 
is  otherwise  provided  in  the  next  section. — (3  Aug.,  1861,  c.  42,  ss.  15,  16, 17,  v. 
12,  p.  289.     17  July,  1862,  c.  200,  s.  12,  v.  12,  p.  596.     21  Jan.,  1870,  c.  9,  s. 


963 


Sec.  1622. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


1,  V.  10,  p.  G2.     15  July,  1870,  c.  294, 
419.  s.  1,  V.  17,  p.  378.) 

ARMY      LAWS     APPLICABLE      TO      M.^RINE     CORPS. 

Age  or  length  of  service. — "When  an  officer 
has  served  forty  consecutive  years  as  a  com- 
missioned oflicer,  he  shall,  if  he  makes  applica- 
tion therefor  to  the  President,  be  retired  from 
active  ser\-ice  and  placed  upon  the  reth-ed  list. 
When  an  officer  has  been  thirty  years  in  service, 
he  may.  upon  his  own  application,  in  the 
discretion  of  the  President,  be  so  retired,  and 
placed  on  the  retired  list."  (Sec.  1243,  R.  S.) 
"When  any  officer  has  served  forty-five 
years  as  a  commissioned  officer,  or  is  sixty -two 
years  old,  he  may  be  retired  from  active 
8er%ice  at  the  discretion  of  the  President." 
(Sec.  1244,  R.  S.) 

"When  an  officer  has  served  forty  yeai's 
either  as  an  officer  or  soldier  in  the  regular  or 
.volunteer  serA-ice,  or  both,  he  shall,  if  he  make 
application  therefor  to  the  President,  be  re- 
tired from  active  serAice  and  placed  on  the 
retired  Hst,  and,  when  an  officer  is  sixty-foiu- 
years  of  age,  he  shall  lie  retired  from  active 
service  and  placed  on  the  retii'ed  list. "  (Act 
June  80,  1882,  22  Stat..  118.) 

Nothing  contained  in  the  act  of  June  30, 
1882  (above  quoted),  "shall  be  so  construed 
as  to  prevent,  limit,  or  restrict  retirements 
from  active  ser^ice  in  the  Army,  as  authorized 
by  law  in  force  at  the  date  of  the  approval 
of  said  act,  retirements  under  the  proAisions 
of.said  act  of  June  thirtieth,  eighteen  hundred 
and  eighty-two.  being  in  addition  to  those 
theretofore  authorized  by  law."  (Act  Mar.  3, 
1883,  22  Stat.,  457.) 

"That  hereafter  no  officer  holding  a  rank 
above  that  of  colonel  shall  be  retired  except 
for  disabihty  or  on  account  of  having  reached 
the  age  of  sixty-four  years  until  he  shall  have 
served  at  least"  one  year  in  such  rank.  "  (Act 
June  12,  1906.  34  Stat..  245.) 

"In  the  case  of  officers  of  the  Regular  Army, 
in  determining  rights  of  retirement,  active 
duty  performed  while  under  appointment  from 
the  United  States  Government,  whether  in  the 
regular,  proA-isional,  or  temporary  forces,  shall 
be  credited  to  the  same  extent  as  service  under 
a  Regular  Army  commission."  (Act  June  4, 
1920,  sec.  51,  41  Stat..  785,  amending  act  June 
3,  1916,  sec.  127.  39  Stat.,  217.  See  also  note 
to  sec.  1600,  R.  S.) 

Disability. — "WTien  any  officer  has  become 
incajpable  of  performing  the  duties  of  his  office, 
he  shall  be  either  retired  from  active  serAT.ce,  or 
wholly  retired  from  the  ser\-ice,  by  the  Presi- 
dent, as  hereinafter  proWded."  (Sec.  1245, 
R.  S.) 

Composition  of  hoard. — "The  Secretary  of 
War,  under  the  direction  of  the  President,  shall, 
from  time  to  time,  assemble  an  Army  retiring 
board,  consisting  of  not  more  than  nine  nor  less 
than  five  officers,  two-fifths  of  whom  shall  be 
selected  from  the  Medical  Corps.  The  board, 
excepting  the  officers  selected  from  the  Med- 
ical Corps,  shall  be  composed,  as  far  as  may  be, 
of  seniors  in  rank  to  the  officer  whose  disabihty 
is  inquired  of."     (Sec.  1246,  R,  S.) 

See  section  1623,  ReAised  Statutes,  as  to 
composition  of  retiring  board  in  the  cases  of 


s.  4,  Y.  16,  p.  317.     10  June,  1872,  c. 


Marine  officers.  See  also  act  of  ^^arch  4,  1916 
(39  Stat.,  1171),  noted  below,  under  "Laws 
relating  specifically  to  Marine  Corps,"  as  to 
retiring  boards  on  foreign  stations. 

Oath  of  members. — "The  members  of  said 
board  shall  be  sworn  in  every  case  to  discharge 
their  duties  honestly  and  impartially."  (Sec. 
1247,  R.  S.) 

Powers  and  duties. — "A  retiring  board  rnay 
inquire  into  and  determine  the  facts  touching 
the  nature  and  occasion  of  the  disability  of  any 
officer  who  appears  to  be  incapable  of  perform- 
ing the  duties  of  his  office,  and  shall  have  such 
powers  of  a  court-martial  and  of  a  court  of  in- 
quiry as  may  be  necessary  for  that  pm'pose." 
(Sec.  1248,  R.  S.) 

Findings. — "T\Tien  the  board  finds  an 
officer  incapacitated  for  active  ser\ice,  it  shall 
also  find  and  report  the  cause  which,  in  its 
judgment,  has  produced  his  incapacity,  and 
whether  such  cause  is  an  incident  of  service." 
(Sec.  1249,  R.  S.) 

Revision  by  the  President. — "The  proceed- 
ings and  decision  of  the  board  shall  be  trans- 
mitted to  the  Secretary  of  War,  and  shall  be 
laid  by  him  before  the  President  for  his  aproval 
or  disapproval  and  orders  in  the  case."     (Sec. 

1250,  R.  S.) 

See  act  of  June  8,  1880  (21  Stat.,  164),  noted 
below  under  "Laws  relating  specifically  to 
Marine  Corps,"  as  to  re\-ision  of  retiring  boards 
by  the  Judge  Advocate  General. 

'Disability  incident  to  service.— "When  a. 
retiring  board  finds  that  an  officer  is  incapaci- 
tated for  acti\-e  serAice,  and  that  his  incapacitv 
is  the  result  of  an  incident  of  service,  and  such 
decision  is  approved  by  the  President,  said 
officer  shall  be  retired  from  active  serAT.ce  and 
placed  on  the  hst  of  retired  officers."     (Sec. 

1251,  R.  S.) 

Disability  not  incident  to  service. — "When  the 
board  finds  that  an  officer  is  incapacitated  for 
active  service,  and  that  his  incapacity  is  not 
the  result  of  any  incident  of  service,  and  its  de- 
cision is  approved  by  the  President,  the  officer 
shall  be  retired  from"  active  ser\Tce,  or  wholly 
retired  from  the  service,  as  the  President  may 
determine.  The  names  of  officers  wholly  retired 
from  the  service  shall  be  omitted  from  the  Army 
Register."     (Sec.  1252,  R.  S.) 

Officers  entitled  to  hearing. — "Except  in  cases 
where  an  officer  may  be  retired  by  the  President 
upon  his  own  application,  or  by  reason  of  his 
haATUg  served  forty-five  years,  or  of  his  being 
sixty-two  years  old,  no  o"fficer  shall  be  retired 
froni  active  serAdce,  nor  shall  an  officer,  in  any 
case,  be  whoUv  retired  from  the  service,  -vNTthout 
a  full  and  fair"  hearing  before  an  Army  retiring 
board,  if,  upon  due  summons,  he  demands  it." 
(Sec.  12.53,  R.  S.) 

Retired  rank. — "Officers  hereafter  retired 
fi-om  active  serATce  shall  be  retired  upon  the 
actual  rank  held  bv  them  at  the  date  of  retire- 
ment."    (Sec.  12-54,  R.  S.) 

See  laws  noted  below,  under  "Laws  relating 
specifically  to  Marine  Corps,"  as  to  retirement 
of  officers  with  higher  rank  than  that  held  on 
the  active  list. 


964 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1622. 


By  act  of  October  1,  1890,  sec.  3  (26  Stat., 
563),  relating  to  examinations  for  promotion  of 
ojfficers  of  the  Army  below  the  rank  of  major,  it 
was  pro^dded  "that  should  the  officer  fail  in 
his  physical  examination,  and  be  found  inca- 
pacitated for  serAdce  by  reason  of  physical  dis- 
ability contracted  in  line  of  duty  he  shall  be 
retired  mth  the  rank  to  which  liis  seniority 
entitled  him  to  be  promoted."  By  act  of 
June  3,  1916,  section  24  (39  Stat.,  183),  exist- 
ing laws  requiring  examinations  of  officers  of 
the  Army  prior  to  promotion  were  extended 
"to  include  promotions  to  all  gi'ades  below  that 
of  brigadier  general."  By  act  of  June  4,  1920 
(41  Stat.,  774),  existing  laws  pro\'iding  for  the 
examination  of  officers  of  the  Army  for  promo- 
tion were  repealed,  "except  those  relating  to 
physical  examination,  which  shall  continue 
to  be  required  for  promotion  to  all  grades  be- 
low that  of  brigadier  general  *  *  *."  (See 
laws  and  decisions  noted  under  section  1599, 
R.  S.,  as  to  qualifications  for  promotion.  See 
also  sees.  1493  and  1494,  R.  S.,  and  notes  thereto.) 

"Any  officer  now  holding  office  in  any  corps 
or  department  who  shall  hereafter  serve  as 
chief  of  a  staff  corps  or  department  and  shall 
subsequently  be  retired,  shall  be  retired  with 
the  rank,  pay,  and  allowances  authorized  by 
law  for  the  retired  of  such  corps  or  department 
chief."  (Act  Feb.  2,  1901,  sec.  26,  31  Stat., 
755.) 

"Any  officer  who  shall  have  served  four 
years  as  chief  of  a  branch,  and  who  may  subse- 
quently be  retired,  shall  be  retired  v.'ith  the 
rank,  pay,  and  allowances  authorized  by  law 
for  the  grade  held  by  him  as  such  chief." 
(Act  Jime  4,  1920,  41  Stat.,  762,  sec.  4,  amend- 
ing act  June  3,  1916,  sec.  4,  39  Stat.,  167.) 

Retired  pay. — "Officers  retired  from  active 
ser\-ice  shall  receive  seventy-five  per  centum 
of  the  pay  of  the  rank  upon  which  they  are  re- 
tired."    (Sec.  1274,  R.  S.) 

"Officers  wholly  retired  from  the  service, 
shall  be  entitled  to  receive,  upon  their  retire- 
ment, one  year's  pay  and  allowances  of  the 
highest  rank  held  by  them,  whether  by  staff 
or  regimental  commission,  at  the  time  of  their 
retirement."     (Sec.  1275,  R.  S.) 

"That  hereafter,  except  in  case  of  officers  re- 
tired on  account  of  wounds  received  in  battle, 
no  officer  now  on  the  retired  list  shall  be  allowed 
or  paid  any  further  increase  of  longevity  pay, 
and  officers  hereafter  retired,  except  as  "herein 
provided,  shall  not  be  allowed  or  paid  any 
further  increase  of  longe-vity  pay  above  that 
which  has  accrued  at  the  date  of  their  retire- 
ment."    (Act  Mar.  2,  1903,  32  Stat.,  932.) 

"That  hereafter  any  retired  officer  of  the 
Army  who  has  been  detailed  to  active  duty,  and 
who  has  since  his  retirement,  served  on  active 
detaU  shall  be  entitled  to  increases  of  longe\'ity 
pay,  to  be  computed  as  pro\dded  by  existing 
statute  for  the  computation  of  longevity  pay,  for 
the  time  of  his  ser\'ice  before  retii'ement  and  on 
active  detail  since  his  retirement."  (Act  May 
12,  1917,  40  Stat.,  48.) 

"That  hereafter  any  retired  officer  who  has 
been  or  shall  be  detailed  on  active  duty,  shall 
receive  the  rank,  pay,  and  allowances  of  the 
gi'ade,  not  above  that  of  major,  that  he  would 
have  attiiined  in  due  course  of  promotion  if  he 
had  remained  on  the  active  list  for  a  period  be- 


yond the  date  of  his  retirement  equal  to  the 
total  amoimt  of  time  during  which  he  has  been 
detailed  on  active  duty  since  his  retirement." 
(Act  June  3,  1916,  39  Stat.,  183,  sec.  24,  re- 
pealed by  act  Jime  4,  1920,  sec.  24,  41  Stat., 
771.) 

"Hereafter  any  retired  officer  who  has  been 
or  shall  be  detailed  on  active  duty  shall  receive 
the  rank,  pay,  and  allowances  of  the  grade,  not 
above  that  of  colonel,  that  he  would  have  at- 
tained in  due  course  of  promotion  if  he  had  re- 
mained on  the  active  list  for  a  period  beyond  the 
date  of  his  retirement  equal  to  the  total  amoimt 
of  time  during  which  he  has  been  detailed  to 
active  duty  since  his  retirement."  (Act  June 
4, 1920,  sec.  61,  41  Stat.,  786,  amending  act  June  • 
3,  1916,  sec.  127,  39  Stat.,  217.  See  laws  and 
decisions  noted  below,  as  to  retired  officers  of 
the  Marine  Corps  on  active  duty.) 

"Hereafter  retired  officers  below  the  grade  of 
brigadier  general  and  retired  waiTant  officers 
and  enhsted  men  shall,  when  on  active  duty, 
receive  full  pay  and  allowances."  (Act  Jime  4, 
1920,  sec.  33,  41  Stat.,  777,  amending  act  June 
3,  1916,  see.  40,  39  Stat.,  191,  192.) 

"In  time  of  war  retired  officers  may  be  em- 
ployed on  active  duty  in  the  discretion  of  the 
rresident,  and  when  so  employed  they  shall 
receive  the  full  pay  and  allowances  of  their 
grades."  (Act  June  4,  1920,  sec.  51,  41  Stat., 
785,  amending  act  June  3,  1916,  sec.  127,  39 
Stat.,  217.) 


LAWS      RELATING 


SPECIFICALLY 
CORPS. 


TO      MARINE 


Civil  ivar  service. — "Officers  of  the  Marine 
Corps  with  creditable  records  who  served 
during  the  civil  war  shall,  when  retired,  be 
retired  in  Like  manner  and  under  the  same 
conditions  as  provided  for  officers  of  the  Navy 
who  served  during  the  civil  war. "  (Act  Apr. 
27,  1904,  33  Stat.,  349.) 

"Any  officer  of  the  Marine  Corps  below  the 
grade,  of  brigadier-general  who  served  with 
credit  as  an  officer  or  as  an  enlisted  man  in  the 
regular  or  volunteer  forces  during  the  ci\'il  war 
prior  to  April  ninth,  eighteen  hundred  and 
sixty-five,  otherwise  than  as  a  cadet,  and  whose 
name  is  borne  on  the  official  register  of  the 
Marine  Corps,  and  who  has  heretofore  been, 
or  may  hereafter  be,  retired  on  account  of 
wounds  or  disability  incident  to  the  ser\-ice, 
or  on  account  of  age  or  after  forty  years'  ser\ice, 
may,  in  the  discretion  of  the  President,  by  and 
with  the  advice  and  consent  of  the  Senate,  be 
placed  on  the  retired  list  of  the  Marine  Corps 
with  the  rank  and  retired  pay  of  one  grade 
above  that  actually  held  by  him  at  the  time  of 
retirement:  Provided,  That  this  Act  shall  not 
apply  to  any  officer  who  received  an  advance 
of  grade  since  the  date  of  his  retirement  or  who 
has  been  restored  to  the  Marine  Corps  and 
placed  on  the  retired  List  by  viitue  of  the  pro- 
visions of  a  special  Act  of  Congress. "  (Act 
June  29,  1906,  34  Stat.,  554.) 

Ncv)  commissions. — "Commissioned  officers 
of  the  Army,  Navy,  and  Marine  Corps  on  the 
retired  list  whose  rank  has  been  or  shall  here- 
after be  advanced  by  operation  of  or  in  accord- 
ance with  law  shall  be  entitled  to  and  shall 
receive  commissions  in  accordance  with  such 


965 


Sec.  1622. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


advanced  rank."     (Act  Mar.  1.  1911.  36  Stat., 
1354.) 

Major  General  Commandant. — "Any  officer 
appointed  under  the  provisions  of  this  Act  who 
shall  be  retired  from  the  position  of  command- 
ant of  tlie  Marine  Corps,  in  accordance  with  the 
provisions  of  sections  twelve  hundred  and  fifty- 
one,  sixteen  hundred  and  twenty-two,  and 
sixteen  hundred  and  twenty-three.  Revised 
Statutes  of  the  United  States,  or  by  reason  of 
age  or  length  of  service,  shall  have  tlie  rank  and 
retired  pay  of  a  major  general ;  if  retired  for  any 
other  reason,  he  shall  be  placed  on  the  retired 
list  of  officers  of  the  grade  to  which  he  Itelonged 
at  the  time  of  his  retirement. ''  (Act  Dec.  19, 
1913,  38  Stat.,  241,  amended  bv  act  Aug.  29, 

1916,  39  Stat.,  609.) 

Retirement  of  colonels. — "That  the  provisions 
of  the  Act  entitled  'An  Act  making  appropria- 
tions for  the  naval  service  for  the  fiscal  year 
ending  June  thirtieth,  nineteen  hundred  and 
seventeen,  and  for  other  purposes,'  approved 
August  twentyrninth,  nineteen  hundred  and 
sixteen,  which  read  as  follows:  *  *  *  'That 
officers  of  the  Marine  Corps  with  the  rank  of 
colonel  who  shall  hav^e  served  faithfully  for 
forty-five  years  on  the  active  list  shall,  when 
retired,  have  the  rank  of  brigadier  general;  and 
such  officers  who  shall  hereafter  be  retii'ed  at  the 
age  of  sixty-four  years  before  having  served  for 
forty-five  years,  but  who  shall  have  served  faith- 
fully on  the  active  list  until  retired,  shall,  on  the 
completion  of  forty  years  from  their  entry  in 
the  naval  service,  have  the  rank  of  brigadier 
general, '  are  hereby  repealed.  "     (Act  May  22, 

1917,  sec.  14,  40  Stat.,  87.) 

Revision  of  retiring  board  records. — "The 
office  of  the  said  judge  advocate  general  shall 
be  in  the  Navy  Department,  where  he  shall, 
under  the  direction  of  the  Secretary  of  the 
Nav^,  receive,  revise,  and  have  recorded  the 
proceedings  of  all  *  *  *  boards  for  the 
examination  of  officers  for  retirement  *  *  * 
in  the  naval  service.  "  (Act  June  8,  1880,  21 
Stat.,  164.) 

Retiring  boards  on  foreign  stations. — "That 
hereafter  the  Secretary  of  the  Nav^y  may  author- 
ize the  senior  officer  present,  or  other  command- 
ing officer,  on  a  foreign  station  to  order  *  *  * 
retiring  boards  for  the  examination  of  such 
candidates  for  *  *  *  retirement  in  the 
Navy  and  ^Marine  Corps  as  may  be  serving  in 
such  officer's  command  and  may  be  directed  to 
appear  before  any  such  board."  (Act  Mar.  4, 
1917,  39  Stat.,  1171.) 

Officers  holding  temporary  rank. — "That  any 
officer  of  the  permanent  Nav^y  or  Marine  Corps, 
temporarily  advanced  in  grade  or  rank  in  ac- 
cordance v\ith  the  provisions  of  this  Act,  who 
shall  be  retired  from  active  service  under  his 
permanent  commission  while  holding  such 
temj)orary  rank,  except  for  physical  disability 
incurred  in  line  of  duty,  shall  be  placed  on  the 
retired  list  with  the  grade  or  rank  to  which  his 
position  in  the  permanent  Navy  or  Marine 
Corps  at  the  date  of  his  retirement  would  entitle 
him,  and  any  person  originally  appointed  tem- 
porarily, as  provided  in  this  Act,  shall  not  be 
entitled  to  any  rights  of  retirement,  except  for 
physical  disability  incurred  in  line  of  duty." 
(Act  May  22,  1917,  sec,  9,  40  Stat.,  86.) 


Retired  officers  on  active  duty. — "That  here- 
after any  retired  officer  of  the  naval  service  who 
shall  be  detailed  on  active  duty  shall,  while  so 
serving,  receive  the  active-duty  pay  and  allow- 
ances of  the  grade,  not  above  that  of  lieutenant 
commander  in  the  Navy  or  of  major  in  the 
Marine  Corps,  that  he  would  have  attained  in 
due  course  of  promotion  if  he  had  remained  on 
the  active  Ust  for  a  period  beyond  the  date  of 
his  retirement  equal  to  the  total  amount  of 
time  during  which  he  has  been  detailed  on 
active  duty  since  his  retirement:  Provided, 
That  nothing  herein  shall  be  construed  to 
reduce  the  pay  of  any  retired  officer  on  active 
duty  whose  retired  pay  exceeds  the  active-duty 
pay  and  allowances  for  the  grade  of  lieutenant 
commander."  (Act  Aug.  29,  1916,  39  Stat., 
581.) 

"That  hereafter,  during  the  existence  of  war 
or  of  a  national  emergency  declared  by  the 
President  to  exist,  any  commissioned  or  war- 
rant officer  of  the  Navy,  Marine  Corps,  or  Coast 
Guard  of  the  United  States  on  the  retired  list 
may,  in  the  discretion  of  the  Secretary  of  the 
Navy,  be  ordered  to  activ^e  duty  at  sea  or 
on  shore;  and  any  retired  officer  performing 
such  active  duty  in  time  of  war  or  national 
emergency,  declared  as  aforesaid,  shall  be 
entitled  to  promotion  on  the  retired  list  to  the 
grade  or  rank,  not  abov^e  that  of  lieutenant 
commander  in  the  Navj^  or  major  in  the  Marine 
Corps  or  captain  in  the  Coast  Guard,  and  shall 
thereafter  receive  the  pay  and  allowances 
thereof  which  his  total  active  service  as  an 
officer  both  prior  and  subsequent  to  retirement, 
in  the  manner  rendered  by  him,  would  have 
enabled  him  to  attain  in  due  course  of  pi  emo- 
tion had  such  service  been  rendered  continu- 
ously on  the  active  list  during  the  period  of 
tinie  last  past."  (Act  July  1,^1918,  40  Stat., 
717.) 

"That  during  the  existence  of  war  or  of  a 
national  emergency,  declared  as  aforesaid,  any 
commissioned  or  warrant  officer  of  the  Navy, 
Marine  Corps,  or  Coast  Guard  of  the  United 
States  on  the  retired  list,  while  on  active  duty, 
may  be  temporarily  advanced  to  and  commis- 
sioned in  such  liigher  grade  or  rank  on  the 
retired  list,  not  above  that  of  lieutenant  com- 
mander in  the  Navy  or  major  in  the  ]\Iarine 
Corps  or  captain  in  the  Coast  Guard,  as  the 
President  may  determine,  and  any  officer  so 
advanced  shall,  while  on  active  duty,  be  enti- 
tled to  the  same  pay  and  allowances  as  officers 
of  like  grade  or  rank  on  the  active  list:  Provided, 
That  any  such  commissioned  or  warrant  officer 
who  has  been  so  temporarily  advanced  in  grade 
or  rank  shall,  upon  his  relief  from  activ^e  duty, 
or  in  any  case  not  later  than  six  months  after 
the  termination  of  the  war  or  of  the  national 
emergency,  declared  as  aforesaid,  revert  to  the 
grade  or  rank  on  the  retired  list  and  to  the  pay 
and  allowance  status  which  he  would  have 
held  had  he  not  been  so  temporarily  advanced: 
Provided  further,  That  nothing  in  this  Act  shall 
operate  to  reduce  the  pay  and  allowances  now 
allowed  by  law  to  retired  officers."  (Act  July 
1,  1918,  40  Stat.,  717.) 

As  to  details  to  educational  institutions,  see 
section  1225,  Revised  Statutes,  and  laws  and 
decisions  noted  thereunder. 


966 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1622. 


Retired  enlisted  men. — "That  when  an  enlisted 
man  shall  have  served  thirty  years  either  in  the 
Army,  Navy,  or  Marine  Corps,  or  in  all,  he  shall, 
upon  making  appUcation  to  the  President,  be 
placed  upon  the  retired  list,  with  seventy-five 
per  centum  of  the  pay  and  allowances  he  may 
then  be  in  receipt  of,  and  that  said  allowances 
shall  be  as  follows:  Nine  dollars  and  fifty  cents 
per  month  in  lieu  of  rations  and  clothing  and 
six  dollars  and  twenty-five  cents  per  month  in 
lieu  of  quarters,  fuel,  and  light:  Provided,  That 
in  computing  the  necessary  thirty  years'  time 
all  service  in  the  Army,  Navy,  and  Marine 
Corps  shall  be  credited."  (Act  Mar.  2,  1907,  34 
Stat.,  1217.  By  act  of  Mar.  3,  1899,  sec.  17,  30 
Stat.,  1008,  service  in  the  Civil  or  Spanish- 
American  War  was  to  be  credited  as  double 
time  in  computing  the  30  years  necessary  for 
retirement  of  enlisted  men,  and  applicants  for 
retirement  thereunder  were  required  to  be  at 
least  50  years  of  age  unless  physically  disquali- 
fied for  ser\dce.) 

"The  Secretary  of  the  Navy  is  authorized  in 
time  of  war  or  when  a  national  emergency  exists 
to  call  any  enlisted  man  on  the  retired  list  into 
active  service  for  such  duty  as  he  may  be  able 
to  perform.  While  so  employed  such  enlisted 
men  shall  receive  the  same  pay  and  allowances 
they  were  recei\ing  when  placed  on  the  retired 
list."  (Act  Aug.  29,  1916,  39  Stat.,  591,  super- 
seding similar  pro\ision  in  act  Mar.  3,  1915,  38 
Stat.,  941.) 

"That  any  enlisted  man  of  the  Navy  or  Ma- 
rine Corps  upon  the  retired  list  who  has  been 
ordered  into  active  ser\ice  since  April  sixth, 
nineteen  hundred  and  seventeen,  or  who  may 
hereafter  be  ordered  into  active  service,  shall  be 
eUgible  for  promotion  and  he  shall  be  entitled 
to  the  pay  and  benefits  of  continuous  service  of 
such  rank  and  for  such  length  of  time  as  he  is  or 
has  been  employed  in  active  service,  and  when 
relieved  of  active  service  shall  retain  upon  the 
retired  list  the  rank  and  service  held  by  him  at 
the  time  of  such  reUef ,  with  the  pay  and  allow- 
ances of  such  rank  on  the  retired  hst;  and  the 
accoimting  officers  of  the  Treasury  are  hereby 
directed  to  allow  in  the  accounts  of  any  enlisted 
man  of  the  Navy  or  Marine  Corps  who  resigned 
from  the  rethed  Ust  in  order  to  reenhst  for  ap- 
pointment in  a  higher  grade  the  same  continu- 
ous service  pay  and  the  benefits  of  such  rank  to 
which  he  may  have  been  appointed  upon  reen- 
■  listment,  as  if  his  service  had  been  continuous, 
and  any  difference  in  pay  from  the  date  of  reen- 
listment  shaU  be  credited  to  his  accoimt." 
(Act  July  1,  1918,  40  Stat.,  719.) 

"Thatsomuchof  the  Actof  July  1, 1918  (Pub- 
lic Numbered  182),  as  authorizes  the  promotion 
of  retired  enlisted  men  of  the  Navy  and  Marine 
Corps  ordered  to  active  duty  shall  not  be  so 
construed  as  to  make  illegal  promotions  of  such 
men  as  have  heretofore  been  made  to  warrant 
grades  or  as  to  deprive  them  of  any  of  the  pay, 
allowances,  or  other  benefits  accruing  under 
such  promotion."  (Act  July  11,  1919,  41  Stat., 
153.) 

Construction  of  section  1622  in  general. 
— Section  1622,  Revised  Statutes,  simply  pro- 
vides for  the  conditions  precedent  to  the  retire- 
ment of  an  officer  of  the  Marine  Corps,  but  in 
no  way  changes  the  jurisdiction  to  which  he  is 
subject  or  the  conditions  under  which  he  may 


be  again  placed  on  active  duty.     (Jonas  v.  IT. 
S.,  50  Ct.  Cls.,  281.) 

These  "conditions"  unquestionably  are  con- 
ditions precedent  to  retiring,  and  not  con- 
ditions subsequent.  Section  1622  is  simply  a 
pro^-ision  that  a  commissioned  officer  of  the 
Marine  Corjjs  is  entitled  to  the  same  right  of 
retirement  as  an  officer  of  the  Army.  When  so 
retired,  he  is  a  retired  officer  of  the  Maiine 
Corps,  subject  to  the  laws  and  regulations  es- 
tablished for  the  government  of  the  Navy. 
(Jonas  V.  U.  S.,  50  Ct.  Cls.,  281.) 

It  will  be  observed  that  while  section  1622 
refers  to  the  retirement  of  officers  of  the  Marine 
Corps  and  entitles  them  to  the  benefit  of  all 
laws  relating  to  the  retirement  of  officers  of  the 
Army,  the  pro\'ision  in  the  act  of  April  23, 
1904  (33  Stat.,  259,  264),  relating  to  advance- 
ment of  Army  officers  on  the  retired  List 
who  had  Civil  War  service,  refers  to  what  may 
be  done  in  the  discretion  of  the  President,  by 
and  with  the  advice  and  consent  of  the  Senate, 
for  the  benefit  of  certain  officers  of  the  Army 
after  their  retirement  is  an  accompUshed  fact, 
whether  theretofore  or  thereafter  retired.  In 
other  words,  the  provision  is  not  a  law  in  refer- 
ence to  the  retirement  of  officers  of  the  Army, 
but  an  act  authorizing  special  benefits  to  cer- 
tain officers  of  the  Army  who  have  been  or  may 
be  retired.     (25  Op.  Atty.  Gen.,  262.) 

The  conditions  mentioned  in  section  1622  are 
unquestionably  conditions  precedent  to  retire- 
ment, and  not  conditions  subsequent;  accord- 
ingly, held  that  the  Army  act  of  June  3,  1916, 
section  24,  above  quoted,  is  not  applicable  to 
the  Marine  Corps,  under  section  1622,  in  so  far 
as  it  affects  the  rank  of  retired  officers  who  have 
performed  or  who  may  in  the  future  perform 
the  required  amount  of  active  duty.  (File 
26509-158  :  2,  June  27,  1916.) 

It  is  well  settled  that  the  Marine  Corps,  while 
in  many  respects  a  separate  and  distinct  organ- 
ization, is  prunarily  a  part  of  the  Navy.  In  the 
matter  of  retirement,  however,  as  of  pay,  the 
Marine  Corps  has  been  classed  with  the  Army 
(sees.  1612,  1622).  The  language  of  section 
1622  is  broad  and  sweeping,  and  as  it  is  the 
only  provision  upon  the  subject  of  retirement 
it  must  be  held  to  mean  just  what  it  says;  in 
other  words,  officei's  of  the  Marine  Corps,  in  the 
matter  of  retirement,  were  placed  by  that  sec- 
tion upon  exactly  the  same  footing  as  officers 
of  the  Army.     (25  Op.  Atty.  Gen.,  262.) 

Employment  of  retired  oflicers  on  ac- 
tive duty. — ^\^len  a  marine  officer  was  put 
upon  the  retired  list  he  was  subject  to  the  or- 
ders of  the  Secretary  of  the  Navy  within  the 
statutory  conditions,  and  came  within  the 
provisions  of  the  act  of  August  22,  1912  (37 
Stat.,  329),  as  to  assignment  of  retired  "naval" 
officers  to  active  duty,  and  not  the  act  of  April 
23,  1904  (33  Stat.,  264),  relating  to  assignment 
of  retired  officers  of  the  Army  to  active  duty. 
Each  of  these  statutes  contained  provisions  re- 
lating to  the  pay  of  retired  officers  assigned  to 
active  duty  thereunder.  Held,  that  the  re- 
tired marine  officer  so  assigned  to  active  duty 
under  the  act  of  1912,  became  entitled  upon 
such  assignment  to  the  pay  and  allowances 
provided  for  in  said  act.  (Jonas  v.  U.  S.,  50 
Ct.  Cls.,  281.) 


967 


Sec.  1629. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


The  act  of  June  7,  1900  (31  Stat.,  703),  au- 
thorized the  assignment  of  "any  naval  oJHcer 
on  the  retired  list"  to  active  duty  during  a  pe- 
riod of  twelve  years  from  its  passage.  During 
the  life  of  tliis  atatute  the  Secretary  of  the 
Navy  detailed  retired  oflicers  of  the  Marine 
Coi"ps  to  active  duty,  and  his  right  to  do  so 
seems  never  to  have  been  (lueslioned.  And 
during  the  interim  between  the  expiration  of 
this  statute  by  limitation  and  its  substantial 
reenactment  by  the  act  of  August  22,  1912  (37 
Stat.,  329),  neither  retired  naval  nor  marine 
oflicers  were  employed  on  active  duty.  After 
the  enactment  of  the  latter  statute,  the  Secre- 
tary of  the  Navy  renewed  the  practice  followed 
under  the  former  statute.  This  substantial 
reenactment  of  the  statute  by  I'ongress  was  in- 
dicative of  legislative  approval  of  the  depart- 
mental construction  of  the  same,  as  stated. 
(Jonas  V.  U.  S.,  50  Ct.  Cls.,  281.) 

Congress,  by  the  act  of  June  3,  1916  (39  Stat., 
183),  gave  to  retired  oflicers  of  the  Army  de- 
tailed on  active  duty  the  longe\'ity  pay  which 
would  accrue  to  them  by  reason  of  their  added 
active  service  after  retirement,  which  pay  they 
could  not  thereafter  receive  by  reason  of  the  act 
of  March  2,  1903  (32  Stat. ,  932\.  The  said  act  of 
June  3,  1916,  applied  to  a  retired  officer  of  the 
Marine  Corps  on  active  duty  so  as  to  entitle  him 
to  increase  in  longevity  pay,  although  he  held 
the  rank  of  major,  and  an  Anny  officer  of  the 
rank  of  major  could  not  be  advanced  to  a  higher 
rank  under  said  act.  (Jonas  v.  U.  S.,  53  Ct. 
Cls.,  254.  See  above,  under  "Construction  of 
section  1622,  in  general."  See  also  act  of  Aug. 
29,  1916,  quoted  alcove,  with  respect  to  retired 
officers  of  the  Marine  Corps  on  active  duty.) 

Rank  on  retirement. — The  Anny  law  (sec. 
1254,  R.  S.),  providing  that  "officers  hereafter 
retired  from  active  service  shall  be  retired  upon 
the  actual  rank  held  by  them  at  the  date  of  re- 
tirement," is  applicable  to  the  Marine  Corps. 
A  captain  in  that  corps,  holding  the  office  of 
Judge  Advocate  General  of  the  Navy  with  the 
rank,  pay,  and  allowances  of  a  colonel  while  so 
serving,  was  in  law  and  in  fact  a  colonel  in  the 
Marine  Corps  while  holding  said  office  of  Judge 
Advocate  General,  and  was  entitled  to  be  re- 
tired as  such;  and  under  section  1274,  R.  S., 
was  entitled  to  receive  75  per  centum  of  the 
pay  of  colonel.  Under  the  act  of  June  8,  1880 
(21  Stat.,  164),  the  rank  of  a  Judge  Advocate 
General  of  the  Navy  is  not  assimilated  but  ac- 
tual rank.  (Remey  v.  U.  S.,  33  Ct.  Cls.,  218. 
See  note  to  sec.  421,  R.  S.,  as  to  retirement  of 
chiefs  of  bureaus.) 

Rank  on  retirement  for  Civil  War  serv- 
ice.—See  note  above,  imder  "Construction  of 
section  1622,  in  general." 

Section  11  of  the  act  of  March  3,  1899  (30 
Stat.,  1007),  which  fixes  the  rank  and  pay  of 
retired  officers  of  the  Navy  who  served  with 
credit  during  the  Civil  War,  held  not  applicable 
to  officers  of  the  Marine  Corps.  (24  Op.  Atty. 
Gen.,  709.) 

The  said  act  of  March  3,  1899,  was  evidently 
drafted  •with  care,  and  with  a  clear  understand- 
ing of  the  distinctions  between  the  Navy  and 
the  Marine  Corps.  The  first  seventeen  sections, 
in  definite  terms,  apply  to  the  Navy;  then 
follow  the  sections  which  with  equal  exactness 
apply  to  the  Marine  Corps.    These  two  arms  of 


the  service  are  recognized  and  treated  through- 
out the  entire  statute  as  separate  and  distinct, 
and  for  each  of  them  appropriate  provision  is 
made.  The  unambiguous  language  of  section 
11  makes  it  apply  only  to  officers  of  the  Navy, 
and  there  is  nothing  ^\ithin  the  entire  act 
wliich  in  any  way  indicates  that  any  officer  not 
in  the  Navy  was  intended  to  be  inc  luded  witliin 
the  provisions  of  said  section.  The  mere  fact 
that  one  set  of  officers,  not  mentioned,  are  as 
meiitorious  as  those  expressly  provided  for 
can  not  justify  a  construction  Uberal  enough  to 
give  to  the  former  benefits  granted  in  clear 
terms  only  to  the  latter.  (24 "Op.  Atty.  Gen., 
709,  June  26,  1903.) 

In  the  matter  of  retirement,  officers  of  the 
Marine  Corps  with  creditable  records  who 
served  during  the  Civil  War  are  governed  en- 
tirely by  the  act  of  April  27,  1904  (33  Stat.,  324, 
349),  which  provides  that  they  shall  be  retired 
"in  like  manner  and  under  the  same  conditions 
as  provided  for  officers  of  the  Navy  who  served 
during  the  Civil  War."  To  this  extent  that 
act  alters  and  amends  section  1622,  Revised 
Statutes.    (25  Op.  Attv.  Gen.,  262.) 

By  act  of  April  23,  1904  (33  Stat.,  259,  264), 
provision  was  made  for  the  advancement  on 
the  retired  list  of  Armv  officers  who  served  dur- 
ing the  Civil  War.  By  act  of  April  27,  1904 
(3.3  Stat.,  324,  349),  passed  four  days  later,  spe- 
cial provision  was  made  for  the  retirement  of 
officers  of  the  Marine  Corps  who  served  during 
the  Civil  War,  in  accordance  \\ith  Navy  laws. 
Held,  that  the  Army  act  of  April_  23,  1904,  has 
no  application  by  virtue  of  section  1622,  Re- 
vised Statutes,  to  officers  of  the  Marine  Corps 
who  served  during  the  Civil  War.  (25  Op. 
Atty.  Gen.,  262.) 

That  Congress  never  intended  the  Army  act 
of  April  23,  1904,  to  apply  to  the  Marine  Corps 
is  showTi  by  its  incorporation  in  the  Navy  act, 
passed  four  days  later,  of  a  provision  specifically 
dealing  with  the  retirement  of  officers  of  the 
Marine  Corps  with  creditable  records  who 
served  during  the  Civil  War.  This  practically 
contemporaneous  legislative  interpretation  of 
the  former  act  must  be  held  to  be  conclusive. 
(25  Op.  Atty.  Gen.,  262.) 

Retirement  for  disability  not  incident 
to  the  service. — A  board  of  officers  duly  con- 
stituted was  convened  by  order  of  the  Secre- 
tary of  the  Navy  July  30,  1874,  to  inquire  into  _ 
and  determine  whether  a  lieutenant  of  ma-  ' 
rines  was  incapacitated  for  active  service.  The 
board  found  him  so  incapacitated,  and  that  the 
cause  of  his  incapacity  was  not  an  incident  of 
the  ser\ice.  The  President,  August  18,  1874, 
endorsed  on  the  proceedings  and  findings  of  the 
board:  "I  concur  in  opinion  with  the  retiring 
board  in  the  case  of  *  *  *.  Let  him  be  re- 
tired on  furlough  pay."  Held,  first,  that  the 
action  of  the  President  amounted  to  an  approval 
of  the  finding  of  the  board  and  to  a  retirement 
of  the  officer  from  active  service  within  section 
1252,  Revised  Statutes,  and  that  he  was  retired 
in  conformity  with  the  law  applicable  to 
officers  of  the  Marine  Corps;  and  second,  that, 
the  officer  thereby  became  entitled  to  receive 
pay  according  to  the  rates  established  by  law 
for  retired  officers  of  the  Army,  viz,  75  per 
centum  of  the  pay  of  the  actual  rank  held  by 
him  at  the  date  of  retirement,  notwithstanding 


968 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1622. 


a  different  rate  of  pay,  viz,  furlough  pay,  was 
named  bv  the  President  in  retiring  him.  (15 
Op.  Atty.  Gen.,  442.) 

For  officers  of  the  Marine  Corps  who  are  re- 
tired from  acti\'e  ser\"ice,  as  for  officers  of  the 
Army  who  are  so  retired,  there  is  but  one  rate 
of  pay  estabhshed  by  law,  \'iz,  75  per  centum 
of  the  pay  of  the  rank  upon  which  they  are  re- 
tired (sec.  1274,  R.  S.);  and  it  is  not  competent 
to  the  President  to  place  these  retired  officers 
on  a  different  rate  of  pay  than  that  which  the 
law  has  fixed.     (15  Op.  Atty.  Gen.,  442.) 

The  first  sentence  of  the  endorsement  of  the 
President  upon  the  record  of  the  proceedings 
of  the  board  (above  quoted)  admits  of  no  other 
construction  than  that  it  was  meant  to  express 
his  approval  of  the  finding  of  the  board. 
Having  thus  approved  the  finding,  it  rested 
entii'ely  in  his  discretion  whether  the  officer 
should  be  retired  from  active  sei-vice  or  be 
wholly  retired  fi'om  the  ser^ice  (sec.  1252, 
R.  S.);  but  it  was  necessary  that  one  or  the 
other  be  done,  as  the  law  is  imperative  that 
when  the  decision  of  the  board  is  approved  by 
the  President  the  officer  "shall  be  retired," 
etc.  The  direction  given  in  the  last  sentence 
of  the  endorsement  clearly  indicates  that  it 
was  the  determination  of  the  President  that  the 
officer  be  retii-ed  from  "active  ser\T.ce"  simply. 
The  compensation  of  an  officer  thus  retired 
being  fixed  by  statute  and  not  left  to  be  de- 
termined by  the  President,  in  so  far  as  that 
direction  limits  the  officer's  pay  on  the  retired 
list  it  must  be  treated  as  of  no  effect.  (15  Op. 
Atty.  Gen.,  442.) 

Sections  1454  and  1593  Revised  Statutes, 
as  to  the  retirement  of  naval  officers  on  fm- 
lough  pay  for  disabihty  not  incident  to  the  serv- 
ice, do  not  apply  to  officers  of  the  Marine 
Corps,  for  that  corps  different  legislation  is 
pro\T.ded.  (15  Op.  Atty.  Gen.,  442.  See 
sees.  1454  and  159.3,  R.  S.,  and  notes  thereto.) 

Retirement  for  length  of  service. — The 
act  of  June  30,  1882  (22  Stat.,  118^,  referring  to 
the  retirement  of  officers  of  the  Army  who  have 
served  40  years  "in  the  regular  or  A-olunteer 
service,  or  both, "  was  intended  by  the  use 
of  the  words,  "volunteer  ser\ice, "  to  refer  to 
the  volunteer  ser\-ice  in  the  Civil  War,  and  did 
not  intend  to  anticipate  a  new  volunteer  sei-v- 
ice  such  as  that  authorized  under  the  act  of 
April  22,  1898.     (22  Op.  Atty.  Gen.,  199.) 

Under  the  Army  reorganization  act  of  June 
4,  1920  (41  Stat.,  761),  the  ser\ice  wliich  by 
existing  law  is  held  to  be  the  equivalent  of 
Army  service  in  counting  length  of  ser\ice  for 
increase  of  pay  or  for  retirement  is  service  in 
the  Marine  Corps  and  ser\T.ce  in  the  Navy. 
(27  Comp.  Dec,  170,  citing  acts  of  Feb.  24, 
1881,  21  Stat.,  346;  Sept.  30,  1890,  26  Stat., 
'504;  and  June  22,  1906  and  Mar.  2,  1907,  34 
Stat.,  451  and  1217.) 

Retirement  for  age. — The  Army  act  of 
June  30,  1882  (22  Stat.,  118),  relative  to  retire- 
ment, applies  to  an  officer  of  the  regular  Ai-my 
who  is  64  years  of  age,  temporarily  serving 
under  a  volunteer  commission,  but  his  retire- 
ment thereunder  does  not  affect  his  status  in 
the  volunteer  service.  (22  Op.  Atty.  Gen., 
199.) 

The  said  act  of  June  30.  1882,  does  not  ap- 
ply to  a  volunteer  officer  who  is  64  years  of  age 


and  who  does  not  at  the  same  time  hold  a 
commission  in  the  regular  Army.  (22  Op. 
Atty.  Gen.,  199.) 

An  officer  of  the  regular  Army  who  at  the  same 
time  holds  a  commission  in  the  volunteer 
Army  may  continue  to  hold  and  exercise  his 
latter  commission  after  ha\T.ng  been  placed 
upon  the  retired  list  of  the  regular  Army  by 
reason  of  the  age  limit.  _  (22  Op.  Atty.  Gen. ,  199 . ) 

The  Army  retired  lists  apply  to  the  regular 
Army  alone,  with  due  credit  given  for  the  time 
of  volunteer  serA-ice  of  oflicers  of  the  regular 
Army  in  the  Civil  War.  (22  Op.  Atty.  Gen., 
199.) 

Status  of  retired  officer. — An  officer  of  the 
Marine  Corps  retii-ed  from  active  seindce  only, 
and  not  wholly  retired  fi'om  service,  is  an 
officer  in  the  employ  of  the  Government  and 
so  within  the  prohibition  of  section  1782  of 
the  Revised  Statutes  prohibiting  compensa- 
tion to  "any  officer  or  clerk  in  the  employ  of 
the  Government"  for  rendeiing  ser\ices  in 
relation  to  any  claim  or  other  matter  in  which 
the  United  States  is  a  party,  before  any  depart- 
ment, court-martial,  bureau,  officer,  or  any  civil, 
military,  or  naval  commission.  (29  Op.  Attv. 
Gen.,  397.) 

In  determining  the  status  of  a  retired  ofiicer 
of  the  Marine  Corps,  as  to  whether  or  not  he  is 
an  officer  of  the  Government,  the  Marine  Corps 
must,  under  section  1622,  Revised  Statutes, 
be  considered  as  part  of  the  Army.  (29  Op. 
Atty.  Gen.,  397,    400.) 

Retired  enlisted  men. — Officers  on  the 
retired  list  are  a  part  of  the  Army;  they  may  be 
assigned  to  duty  and  wear  the  uniform  and  con- 
tinue to  be  borne  on  the  Army  Register,  and 
are  subject  to  trial  by  coiu"t-martial;  enlisted 
men  after  retirement  are  not  a  part  of  the  Armv. 
(Murphy  v.  U.  S.,  .38  Ct.  Cls.,  511.)  _ 

Section  1094,  Revised  Statutes,  in  express 
terms  declares  that  "the  officers  of  the  Army 
on  the  retired  Ust"  are  a  part  of  the  Army. 
By  act  of  March  2,  1899,  section  7  (30  Stat., 
979),  the  President  was  authorized  to  employ 
retired  officers  of  the  Army  on  active  duty  in 
time  of  war.  This  act  is  a  recognition  by  Con- 
gi'ess  that,  though  retii-ed  officers  of  the  Army 
were  in  express  terms  declared  to  be  a  part  of 
the  Army,  they  were  not  theretofore  subject 
to  active  military  duty.  There  are  no  such 
laws  A\ith  respect  to  enlisted  men  on  the  re- 
tired list.  There  is  no  statute  declaring  them 
to  be  a  part  of  the  Anny,  nor  is  there  any 
statute  subjecting  them  to  military  duty. 
When  he  is  retired,  an  enlisted  man  thereby 
sexeTs  his  connection  with  the  Army  to  go  on 
the  retii-ed  Ust,  and  can  not  thereafter  be  said 
to  be  a  component  jjart  of  the  Army.  (Miirphv 
V.  U.  S.,  38  Ct.  Cls.,  611.) 

It  is  no  answer  to  say  that  enlisted  men  on 
the  rethed  Ust  are  a  part  of  the  Army  because 
subject  to  court-martial;  if  that  were  true, 
which  the  court  does  not  concede,  they  never- 
theless could  not  be  assigned  to  military  duty. 
Their  retired  pay  is  d.ven  them,  not  for  services 
to  be  rendered  in  the  future,  but  for  services 
which  they  haAe  faithfully  rendered  prior  to 
their  retirement.  (Mui'phv  v.  U.  S.,  38  Ct. 
Cls.,  511.) 

On  reconsideration,  the  decision  affirmed 
that  retired  enUsted  men  are  not  entitled  to 


969 


Sec.  1623. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


the  additional  pay  for  length  of  service  given 
by  section  1284,  Revised  .Statutes,  because 
they  do  not  "remain  continuously  in  the 
Army"  within  the  intent  of  the  statute;  not- 
withstanding the  existence  of  statutes  (over- 
looked in  the  former  decision)  wherein  it  is 
expressly  provided  that  "the  Army  of  the 
United  States  shall  consist  of  *  *  *  the 
ofhcers  and  enlisted  men  of  the  Army  on  the 
retired  list."  Under  these  statutes  the  Army 
consists  in  jxirt  of  enlisted  men  on  the  retired 
list,  and  to  that  extent,  therefore,  the  court 
■was  in  error  in  certain  statements  contained  in 
the  previous  decision.  But  those  acts  do  not 
make  enlisted  men  on  the  retired  list  a  part  of 
the  organization  of  the  Army,  subject  to  mili- 
tary duty  as  enlisted  men  on  the  active  list; 
on  the  contrary,  it  is  conceded  that  such  re- 
tired enlisted  men  are  not  subject  to  military 
duty,  even  at  the  command  of  the  President. 
If  not  subject  to  military  duty,  then  in  what 
way  and  for  what  purpose  can  it  be  said  that 
enlisted  men  on  the  retired  list  are  a  part  of 
the  Armv?  (Murphy  v.  U.  S.,  39  Ct.  Cls., 
178.) 

Retired  enlisted  men  en  route  to  their  homes 
after  retii-ement  are  not  "troops  of  the  United 
States''  (as  used  in  the  land  grant  acts  relating 
to  transportation  for  the  Government).  They 
travel  for  their  own  purposes.  Congress  has 
declared  that  such  retired  enlisted  men  shall 
for  certain  purjioses  be  deemed  a  part  of  the 
Army  (act  Feb.  2,  1901,  31  Stat.,  748);  but 
they  may  be  employed  only  after  Congress  has 
authorized  the  raising  of  volunteer  forces;  and 
not  even  then  for  field  duty  (act  Apr.  2.5,  1914, 
sec.  11,  38  Stat.,  347,  3-50).  TheArmy  Regu- 
lations for  1913  make  no  provision  requiring 
any  service  from  retired  enlisted  men.  Prac- 
tically they  have  retired  from,  and  not  simply 
into,  a  different  branch  of,  the  Army.  The 
fact  that  they  may  thereafter  be  called  into 
the  Army  does  not  make  them  "troops  of  the 
United  States."  Any  male  citizen  may  at 
some  time  be  called  into  the  service.  (U.  S. 
V.  Union  Pac.  R.  Co.,  249  U.  S.,  354,  360, 
affirming  52  Ct.  Cls.,  226.) 

There  is  no  statute  specifically  providing  that 
retired  enlisted  men  shall  constitute  a  part  of 
the  Navy  or  that  retired  enlisted  men  of  the 
Navy  shall  be  amenable  to  trial  by  naval  court- 
martial,  although  it  is  provided  by  statute  that 
retired  officers  of  the  Navy  shall  be  amenable  to 


trial  l)v  court-martial.  (File  26251-22500,  Mar. 
9,  192<).) 

Under  present  laws  it  is  very  doubtful 
whether  an  enlisted  man  on  the  retired  list  of 
the  Navy,  who  is  not  employed  on  active  duty, 
is  subject  to  trial  by  naval  court-martial. 
However,  a  trial  having  taken  place  in  such  a 
case,  and  the  accused  acquitted,  the  proceed- 
ings, findings,  and  acquittal  were  approved,  in- 
stead of  being  set  aside  for  lack  of  jurisdiction, 
as  the  latter  action  would  have  exposed  the 
accused  to  trial  by  the  civil  authorities  of  the 
United  States  for  the  same  offense.  (File 
26251-22500,  Mar.  9,  1920.) 

As  to  retired  pay  of  enlisted  men  in  the  Ma- 
rine Band,  see  note  to  section  1613,  Revised 
Statutes. 

The  provision  in  the  act  of  July  1,  1918,  relat- 
ing to  promotion  of  retired  enlisted  men  of  the 
Navy  and  Marine  Corps  ordered  into  active 
service  (quoted  above  under  this  section), 
authorizes  the  promotion  of  such  retired  en- 
listed men  to  higher  enlisted  ranks  and  ratings 
on  the  retired  list;  and  does  not  authorize  the 
appointment  of  retired  enlisted  men  to  warrant 
or  commissioned  rank  either  on  the  active  or 
retired  lists.  (File  7657-634:1,  Aug.  30,  1918, 
citing  7857-834,  Aug.  12,  1918.) 

It  is  lawful  to  appoint  retired  enlisted  men  as 
temporary  warrant  and  temporary  commis- 
sioned officers  on  the  active  list,  under  the  act 
of  May  22,  1917  (40  Stat.,  84).  File  7657-634:1, 
Aug.  30,  1918,  citing  27321-103,  July  17,  1917.) 

There  is  no  doubt  that  retired  enlisted  men 
may  be  permanently  appointed  as  warrant  or 
commissioned  officers  on  the  active  List,  if  prop- 
erly qualified.  (File  7657-634:1,  Aug.  30, 
1918.) 

If  appointed  a  temporary  commissioned  or 
warrant  officer  on  the  active  list  under  the  act 
of  May  22,  1917,  on  the  termination  of  such  ap- 
pointment a  retired  enlisted  man  would  revert 
to  the  rating  held  by  him  on  the  retired  list  at 
the  time  of  his  appointment.  If  appointed  a 
permanent  commissioned  or  warrant  officer  on 
the  active  list,  he  would  not  revert,  nor  should 
he  be  relieved  from  active  duty,  as  such  an  ap- 
pointment takes  him  off  the  retired  list  and 
destroys  his  status  as  an  enlisted  man.  (File 
7657-634:1,  Aug.  30,  1918.) 

Retirement  of  Major  General  Conunand- 
ant. — See  note  to  section  1601,  Revised 
Statutes. 


Sec.  1623.  [Retiring  board,  how  composed.]  In  case  of  an  officer  of  the  Ma- 
rine Corps,  the  retiring  board  shall  be  selected  by  the  Secretary  of  the  Navy, 
under  the  direction  of  the  President.  Two-fifths  of  the  board  shall  be  selected 
from  the  Medical  Corps  of  the  Navy,  and  the  remainder  shall  be  selected  from 
officers  of  the  Marine  Corps,  senior  in  rank,  so  far  as  may  be,  to  the  officer 
whose  disability  is  to  be  inquired  of. — (3  Aug.,  1861,  c.  42,  s.  17,  v.  12,  p.  289.) 


See  note  to  section  1622,  Revised  Statutes,  and 

particularly    section    1246,    R.   S.,   noted 

thereunder,   as  to   composition  of    Army 

retiring  boards. 

Membersliip  of  retiring  board. — The  act 

of  August  3,  1861  (sec.  1623,  R.  S.),  does  not 

authorize  the  Secretary  of  War  or  the  Secretary 

of  the  Navy  to  assemble  a  mixed  board  of  Army 


and  Marine  officers  for  inquiry  into  the  cases  of 
disabled  officers  of  the  Armv  and  of  the  Marine 
Corps.     (10  Op.  Atty.  Gen.]  116.) 

The  act  of  August  3,  1861,  providing  for  the 
better  organization  of  the  Military  Establish- 
ment, authorized  the  creation  of  boards  to  de- 
termine the  disabilities  of  officers  of  the  Army 
and  Marine  Corps.     Section  16  provided  that 


970 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1623. 


if  any  commissioned  officer  of  the  Ai'my  or 
^^arine  Corps  shall  become  incapable  of  per- 
forming the  duties  of  his  office,  he  shall  be 
placed  upon  the  retired  list,  etc.;  section  17 
enacted  that  in  order  to  carry  out  the  provisions 
of  the  act  the  Secretary  of  War  or  Secretary  of  the 
Navy,  as  the  case  might  be,  under  the  direction 
and  appro^'al  of  the  President  of  the  United 
States,  shall,  from  time  to  time  as  occasion  may 
requii-e,  assemble  a  board  of  not  more  than  nine 
nor  less  than  five  commissioned  officers,  two- 
fifths  of  whom  shall  be  of  the  medical  staff; 
the  board,  except  those  taken  from  the  medical 
staff,  to  be  composed,  as  far  as  may  be,  of  his 
seniors  in  rank.  Held,  that  the  intent  of  the  act 
was  to  cause  disabled  officers  to  be  retired  by  a 
board  composed  of  commissioned  officers  of 
their  owti  branch  of  the  ser\T.ce;  that  it  author- 
ized no  joint  action  of  the  Secretary  of  War  and 
Secretary  of  the  Navy  in  forming  a  retiring 
board ;  nor  did  it  give  either  Secretary  the  power 
to  convene  a  mixed  board  composed  in  part  of 
officers  not  under  his  control.  (10  Op.  Atty. 
Gen.,  116.) 

An  officer  of  one  branch  of  the  service  can  not 
with  accm'acy  be  called  senior  in  rank  to  an  offi- 
cer of  another  branch;  a  major  in  the  Army  is  no 
more  senior  to  a  captain  of  marines  than  he  is  to 
a  captain  in  the  NaA-y.  The  term  in  its  mili- 
tary sense  is  applicable  only  to  relatively 
higher  grades  of  the  same  service.  Its  use  oth- 
erwise would  create  confusion.  (10  Op.  Atty. 
Gen.,  116.) 

Under  the  act  of  August  3,  1861,  section  17, 
for  the  better  organization  of  the  Military  Es- 
tabhshment,  the  Secretary  of  the  Na\'y  has 
discretionary  power  to  select  for  the  retirement 
of  officers  of  the  Marine  Corps  such  commis- 
sioned officers  subject  to  Ms  control  and  orders 
as  he  may  deem  proper.    (10  Op.  Atty.  Gen.,  129.) 


The  act  of  August  3,  1861,  section  17,  author- 
izing the  Secretary  of  the  Navy  to  assemble 
boards  for  the  retii'ement  of  marine  officers, 
does  not  provide  that  the  board  shall  consist  of 
officers  of  that  corps,  but  simply  that  it  shall 
consist  of  commissioned  officers.  That  the  sec- 
tion did  not  contemplate  a  board  composed  ex- 
clusively of  marine  officers  is  clear,  because  it 
provides  that  two-fifths  of  the  board  shall  be  of 
the  medical  .staff;  and  there  being  no  medical 
staff  attached  to  the  Marine  Corps  this  require- 
ment of  the  statute  could  only  be  fulfilled  by 
placing  on  the  board  naval  surgeons.  (10  Op. 
Atty.  Gen.,  129,  130.) 

There  being  no  provision  in  the  law  which 
directs  the  Secretary  of  the  Navy  to  organize 
these  boards  for  the  retirement  of  marine  officers 
from  the  officers  of  the  Marine  Corps,  and  this 
being  a  law  for  the  government  of  the  Navy 
■within  the  meaning  of  the  act  of  1834  (sec.  1621, 
R.  S.),  held  that  the  Secretaiy  of  the  Navy, 
under  the  President,  has  full  power  to  organize 
boards  for  the  retirement  of  marine  officers  of 
the  Navy  of  senior  rank,  under  section  17  of 
said  act  of  August  3 ,  1861 .  ( 10  Op .  Atty .  Gen . , 
129,  130.) 

Retiring  board  illegally  constituted. — 
The  proceedings  of  a  board  constituted  without 
authority  and  in  \T.olation  of  the  act  of  August 
3,  1861,  section  17  (embodied  in  sec.  1623,  R. 
S.),  would  be  open  to  future  question  as  to  their 
validity.    (10  Op.  Atty.  Gen.,  116.) 

The  action  of  a  retiring  board  can  only  be 
valid  as  it  accords  with  the  law  of  its  creation. 
From  that  law  alone  it  must  draw  the  breath  of 
life.  If,  therefore,  it  is  constituted  without  the 
direct  authority  of  that  law,  or  in  \'iolation  of 
its  proA-isions.  the  A'alidity  of  its  action  would 
be  open  to  very  serious  future  question.  (10 
Op.  Atty.  Gen.*  116,  119.) 


54641= 


-90_ 


-62 


971 


CHAPTER  TEN. 

ARTICLES   FOR   THE   GOVERNMENT   OF   THE  NAVY. 

[For   decisions  of  the    Navy   Department  construing  and  applying  the  Articles  fob 
THE  Government  of  the  Navy,  see  Naval  Digest,  1916,  and  supplements  thereto.] 


Sec. 
1624. 


Persons  amenable  to  articles. 


Art. 
1. 

2. 
3. 

4. 


Commander's  duty  of  example  and   cor- 
rection. 
Divine  serxace. 
Irreverent  behavior. 
Offenses  punishable  by  death. 


1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 
10. 
11. 

12. 

13. 
14. 
15. 


Mutiny. 

Disobedience  of  orders. 

Striking  superior  officer. 

Intercourse  with  an  enemy. 

Messages  from  an  enemy. 

Desertion  in  time  of  war. 

Deserting  trust. 

Sleeping  on  watch. 

Leaving  station. 

Willfulstranding  or  injury  of  vessel. 

Unlawful  destruction  of  public  prop- 
erty. 

Striking  flag  or  treacherously  yield- 
ing. 

Cowardice  in  battle. 

Deserting  duty  in  battle. 

Neglecting  orders  to  prepare  for 
battle. 

Neglecting  to  clear  for  action. 

Neglecting  to  join  on  signal  for  battle. 

Failing  to  encourage  the  men  to  fight. 

Failing  to  seek  encounter. 

Failing  to  afford  relief  in  battle. 


16. 

17. 
18. 
19. 
20. 

5.  Spies,  etc. 

6.  Murder. 

7.  Imprisonment  in  penitentiary'. 

8.  Offenses  punishable  at  discretion  of  court- 

martial  : 
Profanity,  falsehood,  etc. 
Cruelty. 
Quarreling. 
Fomenting  quarrels. 
Duels. 
Contempt  of  superior  officer. 

7.  Combinations  against  superior  officer. 

8.  Mutinous  words. 
Neglect  of  orders. 

Preventing  destruction  of  public  prop- 
erty. 

Negligent  stranding. 
Negligence  in  convoy  service. 
Recei\'ing  articles  for  freight. 
False  muster. 

Waste  of  public  property,  etc. 
Plundering  on  shore. 
Refusing  to  apprehend  offenders. 
Refusing  to  receive  prisoners. 
Absence  from  duty  without  leave. 
Violating  general   orders  or  regula- 
tions. 
Desertion  in  time  of  peace. 


1. 
2. 
3. 
4. 
5. 
6. 


9. 
10. 

11. 
12. 
13. 
14. 
15. 
16. 
17. 
18. 
19. 
20. 


21. 
22. 


Harboring  deserters. 


Art. 
9. 
10. 
11. 
12. 
13. 
14. 

15. 
16. 
17. 
18. 
19. 
20. 


21. 
22. 
23. 
24. 
25. 

26. 

27. 
28. 
29. 
30. 
31. 
32. 
33. 
34. 
35. 

36. 
37. 

38. 

39. 
40. 
41. 
42. 
43. 

44. 
45. 
46. 

47. 

48. 


Reduction  of  officers  to  enlisted  rating. 
Desertion  by  resignation. 
Dealing  in  supplies. 
Importing  dutiable  goods. 
Distilled  spirits  only  as  medical  stores. 
Fraud    against   United    States;   embezzle- 
ment, etc. 
List  of  persons  claiming  prize-money. 
Removing  property  from  prize. 
Maltreating  persons  on  prize. 
Returning  fugiti^•es  from  ser^dce. 
Enlisting  deserters,  minors,  etc. 
Duties  of  commanding  officers: 

1.  Men  received  on  board. 

2.  List  of  officers,  men,  and  passengers. 

3.  Deaths  and  desertions. 

4.  Property  of  deceased  pereons. 

5.  Accounts  of  men  received. 

6.  Accounts  of  men  sent  from  the  ship. 

7.  Inspection  of  pro\-isions. 

8.  Health  of  the  crew. 

9.  Attendance  at  final  payment  of  the 


crew. 


government 


of  the 
offending 


10.  Articles  for  the 

Navy.     Punishment  for 
against  this  article 

Authority  of  officers  after  loss  of  vessel. 

Offenses  not  specified . 

Offenses  committed  on  shore. 

Punishments  by  order  of  commander. 

Punishment  by  officer  temporarily   com- 
manding. 

Summary    courts-martial;    convening    au- 
thority. 

Constitution  of  summary  courts-martial. 

Oaths  of  members  and  recorder. 

Testimony  before  summary  courts-martial. 

Punishments  by  summary  courts. 

Disrating  for  incompetency. 

Execution  of  summary  court  sentence. 

Remission  of  summary  court  sentence. 

Proceedings  and  record  of  summary  court. 

Same     punishments     by     general     court- 
martial  . 

Dismissal  of  officers. 

Dismissed  officer  may  demand  trial. 

General    com'ts  -  martial;    convening    au- 
thority. 

General  courts;  constitution  of. 

Oaths  of  members  and  judge-advocate. 

Oath  of  witness. 

E\T.dence;     witnesses;  perjury;  contempt. 

Charges  and  specifications;    arrest  of  ac- 
cused. 

Duty  of  officer  arrested. 

Proceedings  of  general  courts-martial. 

Absence  of  members. 

Return   of  absent  member;  witnesses   re- 
called. 

Suspension  of  pay. 


972 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624. 


Art. 

49.  Prohibited  punishments. 

50.  Sentences,  how  determined. 

51.  Adequate  punishment;  recommendation  to 

mercy. 

52.  Authentication  of  judgment. 

53.  Confirmation  of  sentence. 

54.  Remission  and  mitigation  of  sentence. 

55.  Courts  of  inquiry,  by  whom  ordered. 

56.  Courts  of  inquiry,  constitution  of. 


Art. 

57.  Courts  of  inquiry,  powers  of. 

58.  Oaths  of  members  and  judge-advocate. 

59.  Rights  of  party  inquired  of. 

60.  Proceedings,   how   authenticated;     use  in 

other  cases. 

61.  Limitation  of  trials ;  general  offenses. 

62.  Limitation  of  trials;  desertion  in  time  of 

peace. 

63.  Limitation  of  punishments;  time  of  peace. 


Sec.  1624.  [Persons  amenable  to  articles.]  The  Navy  of  the  United 
States  shall  be  governed  by  the  following  articles. —  (17  July,  1862,  c.  204,  s.  1, 
V.  12,  p.  600.) 


General  rule. — Everyone  connected  with 
the  military  or  naval  service  of  the  United 
States  is  amenable  to  the  jurisdiction  which 
Congress  has  created  for  their  government,  and 
while  thus  serving  surrenders  his  right  to  be 
tried  by  the  civil  courts.  (In  re  Davison,  21 
Fed.  Rep.,  618.) 

The  discipline  necessary  to  the  efficiency  of 
the  Army  and  Navy  required  other  and  swifter 
modes  of  trial  than  are  furnished  by  the 
common-law  courts;  and  in  pursuance  of  the 
power  conferred  by  the  Constitution,  Congress 
has  declared  the  kinds  of  trial  and  the  manner 
in  which  they  shall  be  conducted  for  offenses 
committed  while  the  party  is  in  the  military 
or  naval  service.  Everyone  connected  with 
those  branches  of  the  public  service  is  amenable 
to  the  jurisdiction  which  Congress  has  created 
for  their  government,  and  while  thus  serving 
surrenders  his  right  to  be  tried  by  the  civil 
courts.  All  other  persons,  citizens  of  states 
where  the  courts  are  open,  if  charged  with  crime 
are  guaranteed  the  inestimable  privilege  of 
trial  by  jury.  (Ex  parte  Milligan,  4  Wall., 
2,  123.) 

By  the  articles  of  war ' '  any  person  in  the  mili- 
tary service  of  the  United  States"  may  be  tried 
by  court-martial  for  the  offenses  described  in 
those  articles.  But  the  words,  ' '  in  the  military 
service"  there  used  are  not  to  be  taken  in  «) 
general  a  sense  as  to  include  all  who  are  em- 
ployed in  connection  with  that  service  in  any 
capacity  whatever.  They  must  be  construed 
with  the  provision  by  which  the  articles  are 
preceded,  and  which  declares  that  the  latter 
shall  govern  "the  armies  of  the  United  States." 
So  construed,  they  properly  include  only  such 
as  belong  to  and  serve  in  the  Army  fixed  by 
law.  Hence,  the  question  of  the  amenability 
of  an  individual  to  coui't-martial  jurisdiction 
under  the  above-quoted  provision  is  not  to  be 
determined  according  to  the  nature  of  his  em- 
ployment; that  is  to  say,  whether  it  is  military 
or  not,  but  solely  according  to  the  circumstance 
of  his  belonging  or  not  belonging  to  the  military 
establishment  as  defined  by  law.  (16  Op. 
Atty.  Gen.,  13,  16.) 

To  have  the  effect  of  subjecting  to  trial  by 
court-martial  a  person  not  otherwise  subject  to 
such  jurisdiction  an  act  of  Congress  ought  to 
be  clear  and  unambiguous.     (14  Op.   Atty. 
Gen.,  268,  274.) 

In  passing  upon  the  question  whether  a  clerk 
in  the  Army  is  subject  to  court-martial,  it  is 
proper  to  inquire  at  the  outset  whether  he 
belongs  to  any  of  those  classes  of  persons  who 


are,  by  the  terms  of  the  statutes  in  force,  made 
liable  to  military  law,  as  the  inclusion  of  an 
individual  in  some  one  of  such  classes  is  essen- 
tial to  bring  him  under  court-martial  jurisdic- 
tion.    (16  Op.  Atty.  Gen.,  13,  14.) 

In  every  instance  in  which  Congress  has  im- 
pressed a  military  character  on  any  body  of 
men  whom  they  intended  to  divest  of  the  civil 
right  of  a  trial  by  jury,  besides  the  impressment 
of  a  military  character  they  have  uniformly 
and  expressly  declared  that  they  should  be 
subject  to  the  rules  and  articles  of  war.  A 
course  of  legislation  so  long  continued  and  so 
uniform  marks  the  sacred  respect  in  which  Con- 
gress have  ever  regarded  the  right  of  trial  by 
jury,  and  will  justify  us  in  assuming  it  as  their 
sense  that  this  right  is  never  to  be  taken  away 
by  implication,  never  by  the  mere  impressment 
of  a  military  character  on  a  body,  never  without 
a  positive  provision  to  that  effect.  (1  Op. 
Atty.  Gen.,  276.) 

Civilians. — ^The  right  to  trial  by  jury  is 
preserved  to  everyone  accused  of  crime  who  is 
not  attached  to  the  Army  or  Navy,  or  militia 
in  actual  service.  (Ex  parte  Milligan,  4  Wall., 
2,  123.) 

A  statutory  provision  that  any  person  who 
shall  contract  to  furnish  suppUes  of  any  kind 
or  description  in  the  Army  or  Navy  shall  be 
deemed  and  taken  as  a  part  of  the  land  or 
naval  forces  of  the  United  States  for  which  he 
shall  contract  to  furnish  said  supplies  is  uncon- 
stitutional in  so  far  as  it  would  operate  to  subject 
a  contractor  to  trial  by  court-martial.  Congress 
may,  no  doubt,  under  their  power  to  raise 
armies,  declare  who  shall  be  soldiers;  that  is, 
what  citizens  shall  be  liable  to  perform  military 
duty,  but  they  can  not  by  mere  enactment 
place  a  man  in  the  Army  who  is  not.  If  they 
could,  then  they  might,  by  a  simple  declara- 
tion, place  every  person  in  the  United  States 
in  the  Army,  no  matter  what  his  pursuits 
actually  continued  to  be,  and  subject  him  to 
trial  by  court-martial;  a  proposition  so  mon- 
strous that  it  is  believed  no  one  would  be  found 
so  hardy  as  to  maintain  it.  (Ex  parte  Hender- 
son, 11  Fed.  Cas.  No.  6349;  compare  Hohnes 
V.  Sheridan,  12  Fed.  Cas.  No.  6644;  see  also 
note  to  Art.  63,  A.  G.  N.,  as  to  cruel  and 
unusual  punishments.) 

A  quartermaster's  clerk  in  the  Army,  that  is, 
a  civilian  employed  in  that  capacity,  is  not 
amenable  to  the  jurisdiction  of  a  court-martial; 
nor  are  superintendents  of  national  ceme- 
teries, appointed  under  sections  4873  and 
4874,  Revised  Statutes.    (16  Op.  Atty.  Gen., 


973 


Sec.  1624. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


13;  see  also,  16  Op.  Atty.  Gen.,  48;  compare 
decisions  noted  below  as  to  paymasters'  clerks 
in  the  Navy.) 

In  this  country  military  tribunals,  whether 
courts-martial  or  milita^-y  commissions,  can 
not  constitutionally  be  granted  jurisdiction  to 
try  persons  charged  with  acts  or  offenses  com- 
mitted outside  of  the  field  of  military  opera- 
tions or  territory  under  martial  law  or  other 
peculiarly  military  territory,  except  members 
of  the  military  or  naval  forces  or  those  imme- 
diatelv  attached  to  the  forces,  such  as  camp 
followers.  (31  Op.  Atty.  Gen.,  356,  361;  com- 
pare note  to  art.  5,  A.  G.  N.) 

Military  jurisdiction  is  of  t^vo  kinds — first, 
that  which  is  conferred  and  defined  by  statute; 
second,  that  which  is  derived  from  the  com- 
mon law  of  war.  Military  offenses  under  the 
statute  must  be  tried  in  the  manner  therein 
directed,  but  military  offenses  which  do  not 
come  ■n-ithin  the  statute  must  be  tried  and 
punished  under  the  common  law  of  war.  The 
first  is  exercised  by  courts-martial — while  the 
latter  are  tried  by  military  commissions.  (Ex 
parte  Vallandigham,  1  Wall.,  243,  249.) 

The  Supreme  Court  of  the  United  States 
has  no  power  to  review  by  certiorari  the  pro- 
ceedings of  a  military  commission  ordered  by 
a  general  officer  of  the  United  States  Army 
commanding  a  military  department.  (Ex  parte 
Vallandigham,  1  Wall.,  243.) 

The  clause  in  the  Constitution  providing 
that  "the  judicial  power  of  the  United  States 
shall  be  vested  in  one  supreme  court  and  in 
such  inferior  courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish,"  refers  only 
to  courts  of  the  United  States,  which  military 
courts  are  not.  (Mechanics,  etc..  Bank  v. 
Union  Bank,  22  Wall.,  276,  295.) 

A  military  commission  is  not  a  court  \vithin 
the  meaning  of  the  Fourteenth  section  of  the 
judiciary  act  of  1789.  (Ex  parte  Vallandigham, 
1  Wall.,  243,  251.) 

The  Constitution  did  not  prohibit  the  cre- 
ation by  military  authority  of  courts  for  the 
trial  of  civil  causes  during  the  Civil  War  in 
conquered  portions  of  the  insurgent  States. 
The  establishment  of  such  courts  is  but  the 
exercise  of  the  ordinary  rights  of  conquest. 
Though  called  in  the  order  establishing  it  a 
"provost  court,"  a  larger  jurisdiction  than  one 
over  minor  criminal  offenses  might,  in  fact, 
have  validly  been  given  to  it  by  the  power 
which  constituted  it.  (Mechanics,  etc.,  Bank 
V.  Union  Bank,  22  Wall.,  276,  296.) 

As  to  military  commissions  and  their  jurisdic- 
tion over  ciWlians,  see  generally  note  to  Con- 
stitution, Art.  I,  sec.  8,  clause  11. 

Persons  discharged  from  the  Navy. — See 
article  14,  A.  G.  N.,  and  note  thereto;  and  see 
notes  to  articles  61  and  62,  A.  G.  N. 

Whether,  when  an  officer  while  under  charge 
of  a  military  offense  is  dismissed  from  the  serv- 
ice by  the  President,  he  may  afterwards  be 
arrested  and  tried  by  coui-t-martial  for  the 
offense,  dubitatur.     (8  Op.  Atty.  Gen.,  328.) 

In  this  case  the  officer  was  placed  under 
arrest  on  charges  of  breaking  arrest,  killing  his 
commanding  officer,  and  desertion.  For  the 
homicide  involved  in  killing  his  commanding 
officer  he  had  been  indicted  for  murder,  and 
tried  and  acquitted  before  a  ci^'il  court  of  the 


State.  Afterwards  he  was  dropped  from  the 
rolls  for  absence  without  leave.  The  ques- 
tion presented  was  whether  a  dismissed  officer 
can  be  tried  by  court-martial  for  a  military 
offense  committed  by  him  prior  to  his  dis- 
missal. This  question  not  decided,  but  re- 
marked that  there  is  no  express  pro^ision  in 
the  statutes  to  settle  the  (juestion  definitely, 
one  way  or  the  other;  nor  is  there  any  authori- 
tative adjudication  on  the  subject,  at  least  in 
the  United  States;  and  that  the  case  of  a 
seaman  whose  enlistment  expires  while  he  is 
under  charges  is  very  different  from  that  of  an 
officer  who  in  the  same  circumstances  is  dis- 
missed by  the  President.  ("8  Op.  Atty.  Gen., 
328.) 

Contingencies  will  undoubtedly  arise  in 
which  it  becomes  desu^able  to  drop  from  the 
rolls  a  deserting  officer  in  order  to  supply  his 
place  by  promotion;  where,  still  due  regard 
to  the  principles  of  justice  and  the  discipline 
of  the  8er\dce  unite  to  call  for  the  exemplary 
punishment  of  the  offender.  Can  it  be  in- 
flicted without  authority  of  statute?  That  is 
the  doubt.     (8  Op.  Atty.  Gen.,  328,  332.) 

Charges  and  specifications  were  preferred 
against  an  officer  of  the  Navy  who  deserted,  at 
the  time  of  desertion,  and  sent  to  a  permanent 
general  court-martial  for  trial,  where  they  were 
held  pending  apprehension  of  the  deserter. 
Held,  that  the  removal  of  said  officer  from  the 
Navy  by  filling  his  place  and  grade  by  the 
appointment  of  a  successor,  with  the  advice 
and  consent  of  the  Senate,  does  not  divest  the 
jurisdiction  of  a  naval  court-martial  to  try  him 
upon  the  charge  which  had  been  previously 
preferred;  that  the  statute  of  limitations  is  not 
involved  in  the  case,  inasmuch  as  the  charges 
and  specifications  were  preferred  by  the  Sec- 
retary of  the  Navy  and  sent  to  the  general  coiu-t- 
martial  in  ample  time  to  assure  his  trial  when- 
ever apprehended.  (Naval  Dig.,  1916,  p.  177, 
citing  file  26251-6278,  Aug.  17,  1915.) 

A  charge  of  desertion  was  preferred  against 
an  officer  of  the  Navy  on  May  31,  1912,  and  was 
tried  by  general  court-martial  April  9,  1917, 
the  said  officer  having  in  the  meantime  been 
dropped  from  the  Navy  and  superseded  by  the 
appointment  of  a  successor  by  the  President  of 
the  United  States  ^vith  the  advice  and  consent 
of  the  Senate.  He  was  found  guilty  of  the 
charge,  the  specification  of  which  was  "proved 
by  plea";  and  was  sentenced  "to  be  dismissed 
from  the  United  States  naval  ser\'ice."  The 
proceedings  and  findings  were  approved  by  the 
Secretary  of  the  Navy,  who  set  aside  the  sen- 
tence, o^\'ing  to  the  fact  that  the  officer's  con- 
nection with  the  ser\'ice  had  alreadv  been 
terminated.     (C.  M.  O.  26,  1917.) 

A  court-martial  has  no  jurisdiction  over  an 
officer  after  he  has  left  the  ser^dce,  although  his 
offense  was  committed  while  in  the  service. 
(24  Op.  Atty.  Gen.,  570;  citing  5  Op.  Attv. 
Gen.,  55,  58.) 

A  person  discharged  from  the  na^■al  service 
before  proceedings  are  instituted  against  him 
for  violations  of  the  Articles  for  the  Government 
of  the  Navy,  excepting  article  14,  can  not 
thereafter  be  brought  to  trial  before  a  court- 
martial  for  such  violations,  though  committed 
while  he  was  in  the  service.  However,  in  view 
of  the  unsatisfactory  state  of  the  authorities, 


9T4 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624. 


and  of  the  grave  objections  on  principle  to  this 
conclusion,  suggested  that  there  is  no  reason  why- 
jurisdiction  should  not  be  asserted  by  the 
Secretary  of  the  Navy  in  such  a  case,  in  order 
to  obtain,  if  possible,  an  authoritative  judicial 
determination  of  the  question.  (31  Op.  Atty. 
Gen.,  521.) 

Article  14,  paragraph  11,  A.  G.  N.,  makes 
express  provision  for  the  trial  of  persons  who 
have  been  discharged  from  the  Navy;  a  proviso 
of  somewhat  similiar  imjjort  is  inserted  in  article 
62,  fixing  a  period  of  limitation  in  cases  of  deser- 
tion, viz,  "that  said  limitation  shall  not  begin 
until  the  end  of  the  term  for  which  such  person 
was  enlisted  in  the  service."  These  provi- 
sions, extending  the  jurisdiction  after  severance 
from  the  service  in  certain  cases  only,  seem  to 
indicate,  on  well-known  principles  of  con- 
struction, that  Congress  did  not  intend  so  to 
extend  the  jurisdiction  in  other  cases.  (31  Op. 
Atty.  Gen.,  521,  527;  compare  notes  to  arts.  61 
and  62,  A.  G.  N.) 

An  enlisted  man  of  the  Army  furloughed  for 
the  unexpired  portion  of  his  enlistment,  held, 
not  thereby  discharged  from  the  Army.  (In 
re  Markun,  232  Fed.  Rep.,  1018.) 

Where  jurisdiction  attached  prior  to 
discharge. — The  principle  that  where  juris- 
diction has  attached  it  can  not  be  divested  by 
mere  subsequent  change  of  status,  has  been 
applied  as  justifjdng  the  trial  and  sentence  of 
an  enlisted  man  after  the  expiration  of  the  term 
of  enlistment,  and  the  execution  of  a  sentence 
after  the  lapse  of  many  years  and  the  severance 
of  all  connection  with  the  Army.  (Carter  v. 
McClaughry,  183  U.  S.,  365,  383;  citing  Barrett 
V.  Hopkins,  7  Fed.  Rep.,  312;  Coleman  v. 
Tennessee,  97  U.  S.,  509;  and  16  Op.  Atty. 
Gen.,  349.) 

It  appears  to  be  well  settled  that  Avhere  juris- 
diction has  once  attached  it  can  not  be  divested 
by  mere  subsequent  change  of  status;  and  this 
principle  justifies  the  trial  and  sentence  of  a 
person  out  of  the  service,  where  jurisdiction 
has  attached  while  he  was  in  the  service.  (31 
Op.  Atty.  Gen.,  521,  528;  citing  Carter  v.  Mc- 
Claughrv,  183  U.  S.,  365,  383;  Coleman  v. 
Tenn.,  97  U.  S.,  509;  16  Op.  Atty.  Gen.,  349, 
352;  Barrett  v.  Hopkins,  7  Fed.  Rep.,  312;  in 
re  Walker,  3  Am.  Jurist,  281;  in  re  Bird,  2 
Sawyer,  33;  in  re  Dew,  25  Law  Reporter,  538, 
540;"U.  S.  V.  Reaves,  126  Fed.  Rep.,  127,  131; 
Winth.  Mil.  L.,  p.  120,  etc.) 

A  soldier  in  the  Army,  sentenced  in  1865  to 
be  hanged,  but  who  made  his  escape,  and  some 
years  later  was  dishonorably  discharged  from 
the  Army,  may  nevertheless  be  legally  executed 
in  1879,  pursuant  to  the  sentence  of  the  court, 
his  status  as  a  military  prisoner  awaiting  execu- 
tion of  sentence  not  having  been  altered  by  his 
discharge.  But  recommended  that  the  sentence 
be  commuted  to  imprisonment  for  life  or  for 
such  term  of  years  as  the  President  may  in  his 
discretion  determine.  (16  Op.  Attv.  Gen., 
349.) 

Where  the  jurisdiction  of  the  military  court 
has  attached  in  respect  of  an  officer  of  the  Army, 
this  includes  not  only  the  power  to  hear  and 
determine  the  case  but  the  power  to  execute  and 
enforce  the  sentence.  The  different  provi.sions 
of  the  sentence  (dismissal,  fine,  and  imprison- 
ment)   took    effect    concurrently,    while    the 


accused  was  under  the  control  of  the  military 
authorities  of  the  United  States  as  a  com- 
missioned officer  of  the  Army;  the  date  of  the 
order  of  dismissal,  of  the  infliction  of  the  fine, 
and  of  the  beginning  of  the  imprisonment,  were 
the  same  date.  The  accused  was  proceeded 
against  as  an  officer  of  the  Army,  and  jurisdic- 
tion attached  in  respect  of  him  as  such;  having 
been  sentenced,  his  status  was  that  of  a  military 
prisoner  held  by  the  authority  of  the  United 
States  as  an  offender  against  its  laws.  He  was 
a  military  prisoner,  though  he  had  ceased  by 
execution  of  the  sentence  of  dismissal  to  be  a 
soldier.  Where  jurisdiction  has  attached,  it 
can  not  be  divested  by  mere  subsequent  change 
of  status.  (Carter  v.  McClaughrv,  183  U.  S., 
365,  382.) 

Where  discharge  revoked  as  illegal. — 
Where  by  sentence  of  a  court-martial  a  soldier 
is  discharged  from  the  Army  before  the  ex- 
piration of  his  term  of  enlistment,  and  such 
sentence  is  afterwards  set  aside  as  null  and 
void,  the  status  of  the  soldier  is  not  affected  in 
any  way  by  such  sentence,  and  he  is  deemed 
to  have  been  in  the  service  all  the  time  be- 
tween the  sentence  and  the  order  setting  it 
aside.  Wliile  in  fact  discharged  from  the 
Army,  but  before  the  expiration  of  his  term  of 
enlistment,  the  said  soldier  committed  a  homi- 
cide: Held,  that  he  might  be  arrested  and 
tried  for  such  homicide  by  the  military  au- 
thorities, the  discharge  being  in  the  meantime 
set  aside  as  null  and  void,  and  the  accused 
being  at  the  time  a  soldier  de  jure.  (In  re 
Bird,  3  Fed.  Cas.  No.  1,428.) 

A  naval  prisoner  made  a  bogus  confession, 
claiming  that  he  had  committed  a  murder  for 
which  he  was  wanted  by  the  civil  authorities; 
he  was  thereupon  discharged  from  the  Navy 
and  delivered  to  the  civil  authorities  in  accord- 
ance with  their  request:  Held,  that  the  Secre- 
tary of  the  Navy  has  authority  to  revoke  the 
discharge  so  granted,  being  the  result  of  fraudu- 
lent representations  made  by  said  enlisted 
man,  and  thereupon  to  reinstate  him  in  his 
former  status  in  the  Navy  and  to  bring  him  to 
trial  by  court-martial  for  his  misconduct.  (28 
Op.  Atty.  Gen.,  170.) 

An  honorable  discharge  granted  to  a  soldier, 
based  on  certain  statements  made  by  him  and 
afterwards  discovered  to  be  false,  may  legally 
be  revoked  on  the  ground  that  it  was  given 
under  a  misapprehension  of  the  facts,  caused 
by  the  false  statements  aforesaid;  such  dis- 
charge must  be  treated  as  a  nullity,  having 
been  obtained  by  the  grossest  falsehood  and 
perjury.     (16  Op.  Atty.  Gen.,  349.) 

See  also  notes  to  articles  32  and  54,  A.  G.  N. 

Where  enlistment  expired  but  not  dis- 
charged.— Where  the  enlistment  of  a  marine 
has  expired,  and  there  is  no  legal  authority 
for  retaining  him  in  the  service,  he  is  in  point 
of  law  entirely  discharged  from  the  Marine 
Corps,  and  can  not  be  prevented  from  leaving. 
If  he  choose  to  remain  and  perform  military 
service  until  obtaining  a  regular  discharge, 
although  not  a  soldier  he  would  be  liable  in  a 
limited  degree  to  the  regulations  necessary  to 
the  peace  and  subordination  of  a  military 
garrison.  (U.  S.  v.  Travers,  28  Fed.  Cas.  No. 
16537;  see  note  to  Constitution,  Art.  I,  sec.  8, 
clause  14,  under  "IV.  Jurisdiction  of  courts- 


975 


Sec.  1624. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


martial,'"  subhoadinc;,  ''Persons  not  subject  to 
jurisdiction  of  Federal  courls-martial;"  and  see 
below,  'Court-martial  prisoners  in  confine- 
ment after  discharge."). 

The  jurisdiction  of  a  court-martial  over  an 
enlistc^d  man  for  offenses  committed  during 
the  period  of  enlistment  extends  after  the 
termination  of  said  period,  whether  or  not  he 
has  in  the  meantime  been  arrested  or  other 
steps  taken  to  enforce  the  jurisdiction;  he 
continues  in  the  naval  service  and  amenable  to 
court-martial  until  there  has  been  some  further 
action,  such  as  a  discharge,  to  terminate  the 
status  created  by  his  contract  of  service.  (Op. 
Atty.  Gen.,  Feb.  27,  1922,  file  26251-26615:  8; 
see  note  to  Art.  61,  A.  G.  N.;  and  note  to  Con- 
stitution, Art.  I,  sec.  8,  clause  14,  under  "IV. 
Jurisdiction  of  courts-martial.") 

Court-martial  prisoners  in  confinement 
after  discharge. — Section  1361,  Revised 
Statutes,  relating  to  the  Army,  providing  that 
''all  prisoners  under  confinement  in  said  mili- 
tary prisons,  undergoing  sentence  of  courts- 
martial,  shall  be  liable  to  trial  and  imprison- 
ment by  courts-martial  under  the  Rules  and 
Articles  of  War,  for  offenses  committed  during 
the  said  confinement, "  is  intended  to  confer 
jurisdiction  in  the  cases  of  "all' '  such  prisoners, 
including  those  who  were  discharged  from  the 
Army  by  the  same  sentence  which  condemned 
them  to  imprisonment;  a  prisoner,  though 
thus  discharged  from  the  Army,  is  subject  to 
trial  by  court-martial  for  offenses  committed 
while  serving  sentence;  and  section  1361,  as 
thus  construed,  is  not  liable  to  constitutional 
objection.  Under  the  power  to  make  rules  for 
"tne  government  and  regulation  of  the  land 
and  naval  forces,  "  Congress  has  provided  that 
cases  of  this  kind,  arising  in  the  Army,  shall  be 
tried  by  court-martial.  (16  Op.  Atty.  Gen., 
293,  295.) 

Section  1361,  Revised  Statutes,  providing 
that  prisoners  under  confinement  in  military 
prisons,  undergoing  sentences  of  Army  courts- 
martial,  shall  be  Liable  to  trial  and  punishment 
by  courts-martial,  etc.,  is  not  in  conflict  with 
the  fifth  amendment  to  the  Constitution,  as 
applied  to  a  prisoner  undergoing  confinement 
imposed  by  sentence  of  court-martial,  pursuant 
to  which  sentence  he  had  been  dismissed  from 
the  Army.  (Ex  parte  Wildman,  29  Fed.  Cas. 
No.  17,653a.) 

An  act  of  Congress  providing  that  prisoners 
confined  in  military  prisons  under  sentence  of 
court-martial  shall  be  liable  to  trial  and  punish- 
ment by  court-martial  for  offenses  committed 
during  said  confinement  is  not  in  conflict  with 
the  Constitution  providing  for  trial  by  jury; 
and  said  statute  is  applicable  to  one  confined 
in  a  military  prison,  though  at  the  time  of  his 
sentence  to  such  confinement  he  was  likewise 
sentenced  to  be  discharged  from  the  service, 
and  that  part  of  the  sentence  had  been  executed . 
(In  re  Craig,  70  Fed.  Rep.,  969.) 

A  person  held  as  a  military  prisoner  for 
punishment  for  a  military  offense  of  which  he 
has  been  con\icted  is  subject  to  military  law, 
and  to  trial  by  court-martial  for  offenses  com- 
mitted during  such  imjjrisonment,  even  if  the 
prior  sentence  resulted  in  his  discharge  as  a 
soldier.  (Kahn  v.  Anderson,  255  U.  S.,  1, 
citing  Carter  v.  McClaughry,  183  U.  S.,  365, 


383;  16  Op.  Atty.  Gen.,  292;  in  re  Craig,  70 
Fed.  Rep.,  969;  ex  parte  Wildman,  Fed.  Cas. 
No.  17,6.53a;  see  also  art.  22,  par.  e,  A.  W., 
June  4,  1920,  41  Stat.,  787.) 

A  general  court-martial  prisoner  in  the  Navy 
may  be  tried  by  summary  covu-t-martial  or 
deck  court  prior  to  the  expiration  of  his  period 
of  enlistment,  and  may  afterwards  be  held  to 
serve  out  the  sentence  imposed  by  such  court, 
irrespective  of  whether  or  not  his  enlistment 
expires  in  the  meantime  (file  26504-100,  Dec. 
21,  1910);  as  to  trial  by  court-martial  of  naval 
prisoners  for  offenses  committed  after  expira- 
tion of  enlistment,  see  file  26.509-259,  March  12, 
1918,  recommending  legislation  similar  to  that 
above  cited  with  respect  to  the  Army. 

See  also  note  above,  under  ''Where  enlist- 
ment expired  but  not  discharged." 

Naval  reservists  released  from  active 
duty. — An  enrolled  member  of  the  Naval 
Reserve  Force  can  not  be  tried  by  a  naval 
court-martial  for  an  offense  alleged  to  have 
been  committed  while  in  active  ser-vice  after 
he  has  been  released  from  active  service  and 
entered  civil  life,  no  charges  or  specifications 
having  been  preferred  against  him  prior  to  his 
release  from  active  duty,  and  the  offense  not 
being  governed  by  article  14,  A.  G.  N.  (U.  S. 
V.  Warden  or  Keeper  of  Naval  Prison,  265  Fed. 
Rep.,  787.) 

Under  the  act  of  August  29,  1916  (39  Stat., 
587),  subjecting  enrolled  members  of  the  Naval 
Reserve  Force  to  the  laws  governing  the  Navy 
only  during  such  time  as  they  may  by  law  be 
required  to  serve  in  the  Navy,  held  that  such 
enrolled  member  of  said  force  can  not  be 
arrested  and  tried  by  court-martial  after  release 
from  active  service  for  an  offense  committed 
while  in  active  service;  nor  can  he  be  recalled 
to  active  duty,  even  in  time  of  war,  where  the 
motive  of  the  order  recalling  him  is  to  make 
him  subject  to  naval  discipline.  (U.  S.  v. 
MacDonald,  265  Fed.  Rep.,  695.  See  note  to 
art.  24,  A.  G.  N.) 

Such  member  can  be  recalled  into  active 
service  only  in  conformity  ■with  the  laws  and 
regulations  on  that  subject,  and  can  not  be 
recalled  to  give  the  naval  court-martial  juris- 
diction to  try  him  for  an  offense  committed 
while  he  was  in  active  service.  (U.  S.  v. 
Warden  or  Keeper  of  Naval  Prison,  265  Fed. 
Rep.,  787.) 

A  person  discharged  from  the  naval  service 
can  be  prosecuted  under  the  criminal  laws  of 
the  United  States  for  any  act  during  the  period 
of  his  active  duty,  made  a  crime  under  the 
general  laws  of  the  United  States,  unless  he 
has  been  previously  placed  in  jeopardy.  (U. 
S.  V.  MacDonald,  265  Fed.  Rep.,  695.) 

See  note  below,  under  "Naval  Reserve 
Force." 

Void  enlistment. — While  a  minor  between 
certain  ages  is  eligible  for  enlistment  with  the 
consent  of  his  parents  or  guardians,  and  in  such 
cases  his  enlistment  ■without  their  consent  is 
not  void  but  voidable,  held  that  the  enlistment 
of  a  minor  below  the  minimum  age  of  enlist- 
ment, and  who  belongs  to  one  of  the  classes 
whose  enlistment  is  prohibited  by  statute,  is 
not  merely  voidable  but  void;  and  in  such  a 
case,  as  the  minor  never  became  a  soldier  sub- 


976 


The  Navy. 


PL  2.  REVISED  STATUT  S. 


Sec.  1624. 


ject  to  military  law,  he  could  not  be  a  deserter 
under  the  Articles  of  War  and  so  is  not  amenable 
to  the  jurisdiction  of  a  court-martial  for  that 
offense.  (Hoskins  v.  Pell,  239  Fed.  Rep.,  279; 
L.  R.  A.,  1917  D,  1053,  construing  sec.  1118, 
R.  S.,  relating  to  enlistments  in  the  Army, 
corresponding  to  sec.  1420,  R.  S.,  relating  to 
enlistments  in  the  Navy.) 

The  enlistment  of  such  a  minor  is  perempto- 
rily forbidden  by  statute,  \vithout  regard  to 
the  consent  of  "his  parent  or  guardian;  his 
enlistment  is  as  invalid  as  the  enlistment  of  an 
insane  or  intoxicated  person.  (Hoskins  v. 
Pell,  239  Fed.  Rep.,  279;  L.  R.  A.,  1917  D, 
1053;  see  also  ex  parte  Rush,  246  Fed.  Rep., 
172,  174;  ex  parte  Beaver,  271  Fed.  Rep.,  493, 
496.) 

If  the  enlistment  of  a  person  in  the  Navy  was 
void,  then  there  is  no  right  to  discipline  him 
at  any  period  of  his  service,  even  though  he 
was  not  undertaking  to  escape  it.  If  his  en- 
listment was  void  (which  means  that  he  was 
never  in  the  service),  then  for  any  act  by  any 
person  claiming  to  be  in  authority  over  him, 
whereby  any  of  the  natural  rights  of  the  alleged 
enlisted'  man  were  denied  him,  as,  for  instance,  if 
he  had  been  imprisoned  for  an  hour,  or  a  day, 
or  a  week,  because  of  some  infraction  of  the 
rules,  a  civil  action  for  damages  would  lie  in 
hia  favor  against  the  particular  individuals  who 
were  responsible  for  such  punishment.  No 
rule  of  law  can  be  cited  that  will  ever  protect  a 
public  officer  from  the  consequences  ofany  act 
which  he  may  imagine  he  is  performing  as  a 
public  officer,  but  which  involves  an  exercise 
of  authority  by  him  as  to  some  person  over 
whom  he  is  absolutely  without  authority. 
(Ex  parte  Rock,  171  Fed.  Rep.,  240,  242.) 

For  other  cases,  see  note  to  section  1420, 
Revised  Statutes. 

Voidable  enlistment. — An  enlisted  soldier 
can  not  avoid  a  charge  of  desertion  by  showing 
that  at  the  time  when  he  voluntarily  enlisted 
he  had  passed  the  age  at  which  the  law  allows 
enlisting  officers  to  enlist  recruits.  (In  re 
Grimlev,  137  U.  S.,  147.) 

Under  section  1624,  Revised  Statutes,  article 
8,  providing  for  punishment  for  desertion, 
where  a  minor  between  the  ages  of  14  and  18 
years,  without  the  consent  of  his  father,  then 
living,  enlisted  in  the  Navy  and  received  the 
usual  pay  from  the  date  of  his  enlistment 
until  he  deserted,  was  arrested  and  detained 
as  a  deserter,  held  that  he  could  not  be  dis- 
charged from  the  custody  of  the  naval  authori- 
ties on  a  writ  of  habeas  corpus  sued  out  by  his 
father,  although  the  latter  was  entitled  to 
demand  his  son's  discharge  from  the  Navy  as 
soon  as  he  had  answered  and  satisfied  the  charge 
for  desertion  then  pending  against  him.  (U.S. 
V.  Reaves,  126  Fed.  Rep.,  127.) 

For  other  cases,  see  notes  to  sections  761  and 
1419,  Revised  Statutes,  and  see  note  to  article 
22,  A.  G.  N. 

Detailed  to  duties  other  than  military. — 
Where  a  military  officer  detailed  for  duty  in  the 
Freedmen's  Bureau  has  been  guilty  of  misap- 
propriation of  money  or  any  violation  of  the 
rules  and  regulations  governing  disbursing 
officers  of  the  Army,  he  may  be  tried  by  court- 
martial  in  the  same  manner  as  anv  other  such 
Army  officer.    (14  Op.  Atty.  Gen.,  268,  269.) 


Regularly  enlisted  men  of  the  Navy  em- 
ployed on  vessels  in  the  Coast  and  Geodetic 
Survey,  pursuant  to  section  4685,  Revised 
Statutes,  would  be  governed  by  the  Articles 
for  the  Government  of  the  Navy  just  as  if  serv- 
ing on  a  vessel  of  war.  (19  Op.  Atty.  Gen., 
182,  183.) 

Officers  of  the  Army  are  in  the  eye  of  the  law 
on  nulitary  duty  although  employed  as  such 
officer  under  statutes  of  the  United  States  in 
the  public  service  on  duties  not  in  them- 
selves pertaining  to  the  Army;  the  status  of 
such  an  officer  was  not  changed  by  his  detail  to 
such  duties,  and  he  was  still  subject  to  the  mili- 
tarv  jurisdiction.  (Carter  v.  McClaughry,  183 
U.'S.,  365,  399-400.) 

Consent  of  accused. — Conceded,  that  the 
possession  by  the  accused  of  a  status  essential 
to  the  exercise  by  the  court-martial  of  its 
power  was  jurisdictional,  and  therefore  may 
not  be  held  to  have  existed  merely  because  of 
an  estoppel.  (Givens  v.  Zerbst,  255  U.  S., 
11,  19,  affirming  ex  parte  Givins,  262  Fed. 
Rep.,  702.) 

Chiefs  of  bureaus  in  the  Navy  Depart- 
ment.— The  chief  of  the  Bureau  of  Medicine 
and  Surgery  in  the  Nav^y  Department  is  amen- 
able to  the  jurisdiction  of  a  naval  court-martial 
upon  charges  and  specifications  preferred 
against  him  for  acts  done  as  such  chief.  (18 
Op.  Atty.  Gen.,  176.) 

A  naval  court-martial  has  jurisdiction  to  try 
the  Paymaster  General  of  the  Navy  and  sen- 
tence him  to  be  dismissed  from  the  position 
of  chief  of  bureau,  and  to  be  suspended  from 
rank  and  duty  as  pay  inspector.  Though 
chief  of  a  bureau  in  the  Navy  Department, 
he  is  not  a  civil  officer.  (Smith  v.  V.  S.,  26 
Ct.  Cls.,  143.) 

A  writ  of  prohibition  will  not  be  issued  to 
prohibit  a  naval  covui;-martial  from  trying  a 
naval  officer,  being  PajTuaster  General  and 
chief  of  a  bureau  in  the  Navy  Department, 
upon  a  charge  of  "  scandalous  conduct  tending 
to  the  destruction  of  good  morals,"  with  speci- 
fications alleging  that  as  such  chief  of  bureau 
he  made  contracts  and  payments  in  disregard 
of  the  interests  of  the  Government,  and  to  pro- 
mote the  interests  of  contractors,  in  violation 
of  law  and  to  the  great  scandal  and  disgrace  of 
the  service  and  injury  of  the  United  States; 
and  upon  the  additional  charge  of  "culpable 
inefficiency  in  the  performance  of  duty,'' 
v^th  speciiifications  setting  forth  acts  similar 
to  those  specified  under  the  first  charge. 
(Smith  V.  Whitney,  116  U.  S.,  167.) 

An  offense  committed  by  a  naval  officer 
serving  as  chief  of  a  bureau  in  the  Navy  De- 
partment, relating  to  the  duties  of  his  office  as 
bureau  chief,  is  a  case  arising  in  the  naval 
forces  and  therefore  punishable  by  court- 
martial  under  the  articles  and  regulations  made 
or  approved  by  Congress  in  the  exercise  of, 
the  powers  conferred  upon  it  by  the  Con- 
stitution. (Smith  V.  WTiitney,  116  U.  S., 
167,  186.) 

See  also  note  to  section  421,  Revised  Stat- 
utes; and  see  Wales  v.  Whitney  (114  U.  S., 
564),  and  Swaim  v.  United  States  (165  U.  S., 
553),  the  latter  case  referring  to  the  trial  of  the 
Judge  Advocate  General  of  the  Army. 


977 


Sec.  1624,  Art.  1. 


rt.  2.  REVISED  STATUTES. 


The  Navy. 


Paymasters'  clerks. — See  note  to  section 
138(5,  Revised  Statutes,  as  to  status  of  pay- 
masters' clerks  a|)i)ointed  pursuant  thereto, 
and  for  amendatory  statutes  abolishing  pay- 
mastei-s'  clerks  and  substituting  the  grades  of 
acting  i)ay  clerk,  pay  clerk,  and  chief  pay  clerk. 

A  jiay master's  clerk  on  duty  in  the  Navy 
is  a  person  ' '  in  the  naval  forces  of  the  United 
States"  \\'ithin  the  meaning  of  those  terms  as 
used  in  the  act  of  March  2,  1863  (12  Stat.,  696, 
sec.  1;  art.  14,  A.  G.  N.),  and  amenable  to  the 
jurisdiction  of  a  court-martial  as  provided  for 
in  that  act.  (In  re  Bogart,  3  Fed.  Cas.  No. 
1596;  see  also  in  re  Reed,  20  Fed.  Cas.  No. 
11636;  U.  S.  V.  Bogart,  24  Fed.  Cas.  No. 
14616;  ex  parte  Reed,  100  U.  S.,  13.) 

A  paymaster's  clerk  in  the  Navy,  regu- 
larly appointed  and  assigned  to  duty  on  a 
recei^^Jlg  ship,  is  a  person  in  the  naval  ser\^- 
ice  of  the  United  States,  subject  to  be  tried 
and  con\'icted  and  sentenced  to  imprisonment 
by  a  general  court-martial  for  a  \aolation  of 
section  1624,  Revised  Statutes.  (Johnson  v. 
Sa>Te,  158  U.  S.  109.) 

Civil  engineers. — See  "historical  note"  to 
section  1413,  Revised  Statutes,  as  to  status  of 
civil  engineers  in  the  Navy. 

Civil  engineers  in  the  Navy  are  subject  to 
jurisdiction  of  naval  courts-martial.  (15  Op. 
Atty.  Gen.,  597;  see  note  to  art.  36,  A.  G.  N.) 

Marine  Corps. — See  section  1621,  Revised 
Statutes,  and  note  thereto,  as  to  laws  and  regu- 
lations governing  the  Marine  Corps  and  mem- 
bers of  the  Medical  Department  serving  there- 
with, and  the  discipline  of  its  officers  and  en- 
listed men. 

Whether  a  naval  court-martial  ordered  under 
the  authority  of  the  Secretary  of  the  Navy  has 
jurisdiction  to  try  a  lieutenant  colonel  of  the 
Marine  Corps  will  depend  upon  whether 
the  alleged  misconduct  of  the  accused  took 
place  while  he  was  employed  in  the  land  serv- 
ice or  in  the  naval  service.  (5  Op.  Atty. 
Gen.,  706,  construing  act  of  July  11,  1798, 
sec.  4;  see  later  laws  and  decisions  noted  under 
sec.  1621,  R.  S.) 

Naval  Reserve  Force. — "Men  transferred 
to  the  Fleet  Naval  Reserve  shall  be  governed 
by  the  laws  and  regulations  for  the  government 
of  the  Navy  *  *  *. "  (Act  Aug.  29,  1916, 
39  Stat.,  591.) 

"Enrolled  members  of  the  Naval  Reserve 
Force  when  in  active  service  shall  be  subject 
to  the  laws,  regulations,  and  orders  for  the  gov- 
ernment of  the  Regular  Navy,  and  the  Secre- 
tary of  the  Navy  may,  in  his  discretion,  permit 
the  members  of  the  Naval  Reserve  Force  to 
wear  the  unifonn  of  their  respective  ranks, 
gi-ades,  or  ratings  while  not  in  active  service, 
and  such  members  shall,  for  any  act  committed 
l)y  them  while  wearing  the  uniform  of  their 
respective  ranks,  grades,  or  ratings,  be  subject 
to  the  laws,  regulations,  and  orders  for  the 
government  of  the  Regular  Navy.  "  (Act  July 
1,  1918,  40  Stat.,  712.) 

See  note  above,  under  "Naval  reservists  re- 
leased from  active  dutv. ' ' 


Coast  Guard. — "Whenever,  in  time  of  war, 
the  Coast  Guard  operates  as  a  part  of  the  Navy 
in  accordance  with  law,  the  personnel  of  that 
service  shall  1)8  subject  to  the  laws  prescril>ed 
for  the  government  of  the  Navy:  Provided, 
That  in  the  initiation,  prosecution,  and  com- 
pletion of  disciplinary  action,  including  re- 
mission and  mitigation  of  punishments  for  any 
offense  committed  by  any  officer  or  enlisted 
man  of  the  Coast  (iuard,  the  jurisdiction  shall 
hereafter  depend  upon  and  be  in  accordance 
with  the  laws  and  regulations  of  the  department 
having  jurisdiction  of  the  person  of  such 
offender  at  the  various  stages  of  such  action: 
Provided  further,  That  any  ])unishment  im- 
posed and  executed  in  accordance  with  the 
provisions  of  this  section  shall  not  exceed  that 
to  which  the  offender  was  liable  at  the  time  of 
the  commission  of  his  offense. ' '  (Act  Aug.  29, 
1916,  39  Stat.,  600.;) 

Lighthouse  Service. — "That  any  of  the 
personnel  of  the  Lighthouse  Service  who  may 
be  transferred  as  herein  pro\'ided  shall,  while 
imder  the  jurisdiction  of  the  Navy  Department 
or  War  Department,  be  subject  to  the  laws, 
regulations,  and  orders  for  the  government  of 
the  Navy  or  Army,  as  the  case  may  be,  in  so 
far  as  the  same  may  be  applicable  to  persons 
whose  retention  permanently  in  the  military 
service  of  the  United  States  is  not  contem- 
plated by  law.  "  (Act  Aug.  29,  1916,  39  Stat., 
602.) 

Coast  and  Geodetic  Survey. — "That  any 
of  the  personnel  of  the  Coast  and  Geodetic 
Survey  who  may  be  transferred  as  herein  pro- 
vided shall,  while  under  the  jurisdiction  of 
the  War  Department  or  Navy  Department, 
have  proper  military  status  and  shall  be  subject 
to  the  laws,  regulations,  and  orders  for  the  gov- 
ernment of  the  Army  or  Navy,  as  the  case  may 
be,  in  so  far  as  the  same  may  be  applicable  to 
persons  whose  retention  permanently  in  the 
military  service  of  the  United  States  is  not 
contemplated  by  law."  (Act  May  22,  1917, 
sec.  16,  40  Stat.,  88.) 

Public  Health  Service.  — "When  ofBcers  of 
the  United  States  Public  Health  Service  are 
serving  on  Coast  Guard  vessels  in  time  of  w&r,  or 
are  detailed  in  time  of  war  for  duty  ^nth  the 
Army  or  Navy  in  accordance  with  law,  they 
*  *  *  shall  be  subject  to  the  laws  prescribed 
for  the  government  of  the  ser\T.ce  to  which  they 
are  respectively  detailed.  "  (Act  July  9,  1917, 
40  Stat.,  242.) 

For  other  cases,  see  note  to  article  5,  A.  G. 
N.,  as  to  jurisdiction  over  ci^dlians  acting  as 
spies;  article  6,  A.  G.  N.,  as  to  jurisdiction  of 
murder  by  civilian  on  naval  hospital  ship; 
article  22,  as  to  concurrent  jurisdiction  of  civil 
authorities;  articles  32  and  53,  as  to  revocation 
of  illegal  discharge;  section  1422,  Revised 
Statutes,  as  to  men  detained  after  expiration 
of  enlistment;  section  1519,  Revised  Statutes, 
as  to  court-martial  of  midshipmen;  and  see, 
generally,  notes  to  articles  61,  62,  and  63, 
A.  G.  N.,  and  to  the  Constitution,  Article  I, 
section  8,  clauses  11,  13,  and  14. 


Article  1.  [Commander's  duty  of  example  and  correction.]  The  commanders 
of  all  fleets,  squadrons,  naval  stations,  and  vessels  belonging  to  the  Navj^, 
are  required  to  show  in  themselves  a  good  example  of  virtue,  honor,  patriotism, 


978 


The  Navy.  Pt.  2.  REVISED  STATUTES.  Sec.  1624,  Art.  4. 

and  subordination;  to  be  vigilant  in  inspecting  the  conduct  of  all  persons  who 
are  placed  under  their  command;  to  guard  against  and  suppress  all  dissolute 
and  immoral  practices,  and  to  correct,  according  to  the  laws  and  regulations 
of  the  Nav}^,  all  persons  who  are  guilty  of  them;  and  any  such  commander  who 
offends  against  this  article  shall  be  punished  as  a  court-martial  may  direct. — 
(17  July,  1862,  c.  204,  s.  1,  v.  12,  p.  601,  art.  1.) 

Art.  2.  [Divine  service.]  The  commanders  of  vessels  and  naval  stations 
to  which  chaplains  are  attached  shall  cause  divine  service  to  be  performed  on 
Sunday,  whenever  the  weather  and  other  circumstances  allow  it  to  be  done; 
and  it  is  earnestly  recommended  to  all  officers,  seamen,  and  others  in  the 
naval  service  diligently  to  attend  at  every  performance  of  the  worship  of 
Almighty  God.— (17  July,  1862,  c.  204,  s.  1,  v.  12,  p.  601,  art.  2.) 

Art.  3.  [Irreverent  behavior.]  Any  irreverent  or  unbecoming  behavior 
during  divine  service  shall  be  punished  as  a  general  or  sunmiary  court-martial 
may  direct.— (17  July,  1862,  c.  204,  s.  1,  v.  12,  p.  601,  art.  2.) 

As  to  deck  courts  and  their  power  to  punish,    1    As  to  limitations  of  punishment  which  may  be 
see  note  to  article  24,  A.  G.  N.  adjudged  bv  courts-martial,   see    note    to 

1  article  63,  A.G.N. 

Art.  4.  [Offenses  punishable  by  death.]  The  punishment  of  death,  or 
such  other  punisliment  as  a  court-martial  may  adjudge,  may  be  inflicted  on 
any  person  in  the  naval  service — (17  July,  1862,  c.  204,  s.  1,  v.  12,  p.  601,  art.  3.) 

First.  [Mutiny.]  Who  makes,  or  attempts  to  make,  or  unites  with  any 
mutiny  or  mutinous  assembly,  or,  being  witness  to  or  present  at  any  mutiny, 
does  not  do  his  utmost  to  suppress  it;  or,  knowing  of  any  mutinous  assembly 
or  of  any  intended  mutiny,  does  not  immediately  communicate  his  knowledge 
to  his  superior  or  commanding  officer; 

Second.  [Disobedience  of  orders.]  Or  disobeys  the  lawful  orders  of  his 
superior  officer; 

Third.  [Striking  superior  officer.]  Or  strikes  or  assaults,  or  attempts 
or  threatens  to  strike  or  assault,  his  superior  officer  while  in  the  execution  of 
the  duties  of  his  office ; 

Fourth.  [Intercourse  with  an  enemy.]  Or  gives  any  intelligence  to,  or 
holds  or  entertains  any  intercourse  with,  an  enemy  or  rebel,  without  leave 
from  the  President,  the  Secretary  of  the  Navy,  the  commander-in-chief  of  the 
fleet,  the  commander  of  the  squadron,  or,  in  case  of  a  vessel  acting  singly, 
from  his  commanding  officer; 

Fifth.  [Messages  from  an  enemy.]  Or  receives  any  message  or  letter 
from  an  enemy  or  rebel,  or,  being  aware  of  the  unlawful  reception  of  such 
message  or  letter,  fails  to  take  the  earliest  opportunity  to  inform  his  superior 
or  commanding  officer  thereof; 

Sixth.  [Desertion  in  time  of  war.]  Or,  in  time  of  war,  deserts  or  entices 
others  to  desert;     [See  §§  1996,  1998.]— (23  April,  1800,  c.  33, art.  17, v. 2, p. 47.) 

Seventh.  [Deserting  trust.]  Or,  in  time  of  war,  deserts  or  betrays  his 
trust,  or  entices  or  aids  others  to  desert  or  betray  their  trust; 

Eighth.  [Sleeping  on  watch.]     Or  sleeps  upon  his  watch; 

Ninth.  [Leaving  station.]  Or  leaves  his  station  before  being  regularly 
relieved ; 


979 


Sec.  1624,  Art.  4.  Pt.  2.  REVISED  STATUTES.  The  Navy. 

Tenth.  [Willful  stranding  or  injury  of  vessel.]  Or  intentionally  or 
willfully  suffers  any  vessel  of  the  Navy  to  be  stranded,  or  run  upon  rocks  or 
shoals  or  improperly  hazarded;  or  maliciously  or  willfully  injures  any  vessel  of  the 
Navy,  or  any  part  of  her  tackle,  armament,  or  equipment,  whereby  the  safety 
of  the  vessel  is  hazarded  or  the  lives  of  the  crew  exposed  to  danger; 

Eleventh.  [Unlawful  destruction  of  public  property.]  Or  unlaw- 
fully sets  on  fire,  or  otherwise  unlawfully  destroys,  any  public  property  not  at 
the  time  in  possession  of  an  enemy,  pirate,  or  rebel; 

Twelfth.  [Striking  flag  or  treacherously  yielding.]  Or  strikes  or 
attempts  to  strike  the  flag  to  an  enemy  or  rebel,  without  proper  authority,  or, 
when  engaged  in  battle,  treacherously  yields  or  pusillanimously  cries  for  quarters ; 

TinRTEENTH.  [CowARDicE  IN  BATTLE.]  Or,  in  time  of  battle,  displays 
cowardice,  negligence,  or  disaffection,  or  withdraws  from  or  keeps  out  of  danger 
to  which  he  should  expose  himself; 

Fourteenth.  [Deserting  duty  in  battle.]  Or,  in  time  of  battle,  de- 
serts his  duty  or  station,  or  entices  others  to  do  so; 

Fifteenth.  [Neglecting  orders  to  prepare  for  battle.]  Or  does 
not  properly  observe  the  orders  of  his  commanding  officer,  and  use  his  utmost 
exertions  to  carry  them  into  execution,  when  ordered  to  prepare  for  or  join  in, 
or  when  actually  engaged  in,  battle,  or  while  in  sight  of  an  enemy; 

Sixteenth.  [Neglecting  to  clear  for  action.]  Or,  being  in  command 
of  a  fleet,  squadron,  or  vessel  acting  singly,  neglects,  when  an  engagement  is 
probable,  or  when  an  armed  vessel  of  an  enemy  or  rebel  is  in  sight,  to  prepare 
and  clear  his  ship  or  ships  for  action; 

Seventeenth.  [Neglecting  to  join  on  signal  for  battle.]  Or  does 
not,  upon  signal  for  battle,  use  his  utmost  exertions  to  join  in  battle; 

Eighteenth.  [Failing  to  encourage  the  men  to  fight.]  Or  fails  to 
encourage,  in  his  own  person,  his  inferior  officers  and  men  to  fight  courageously; 

Nineteenth.  [Failing  to  seek  encounter.]  Or  does  not  do  his  utmost 
to  overtake  and  capture  or  destroy  any  vessel  which  it  is  his  duty  to  encounter; 

Twentieth.  [Failing  to  afford  relief  in  battle.]  Or  does  not  afford 
all  practicable  relief  and  assistance  to  vessels  belonging  to  the  United  States 
or  their  allies  when  engaged  in  battle. 


"Such  other  pimishment"  construed. — 
See  note  to  article  63,  A.  G.  N.,  under  "Cruel 
and  unusual  punishments." 

Imprisonment  in  penitentiaay. — See  arti- 
cle 7,  A.  G.  N. 

"Superior  oflB.cer"  construed. — The  arti- 
cle of  war  which  prescribes  the  punishment  of 
an  officer  or  soldier  who  offers  violence  to  or 
disobeys  the  command  of  his  superior  officer 
does  not  apply  as  between  an  undergraduate 
cadet  at  the  Military  Academy  and  a  fellow 
undergraduate,  whatever  may  be  their  relative 
rank  in  the  academic  organization;  the  rank  of 
cadets  within  the  academy,  as  commissioned 
officers,  noncommissioned  officers,  and  privates, 
is  not  rank  in  the  Army.  (7  Op.  Atty.  Gen., 
332,  333.) 

See  note  to  section  1623,  Revised  Statutes, 
as  to  construction  of  "senior  in  rank";  and  see 
note  to  article  8,  A.  G.  N. 


Mutiny.— See  note  to  article  6,  A.  G.  N., 
as  to  officers  charged  with  murder  for  execu- 
tion of  seaman  for  mutinous  conduct. 

Disobedience  of  orders. ^ — Question  whether 
disobedience  of  orders  is  such  conduct  as  may 
be  punished  under  the  provision  of  the  law 
relating  to  "scandalous  conduct  tending  to  the 
destruction  of  good  morals,"  discussed  but  not 
decided.  (Wilkesv.  Dinsman,  7  How.,  89,  127; 
see  note  to  art.  8,  A.  G.  N.) 

It  sometimes  happens  that  a  prompt  and 
unhesitating  obedience  to  orders  is  indispens- 
able to  the  complete  attainment  of  the  object. 
\Vhile  subordinate  officers  or  soldiers  are  pausing 
to  consider  whether  they  ought  to  obey  or  are 
scrupulously  weighing  the  evidence  of  the  facts 
upon  which  the  commander  in  chief  exercises 
the  right  to  demand  their  services,  the  hostile 
enterprise  may  be  accomplished  without  the 
means  of  resistance.  (Wilkes  v.  Dinsman, 
7  How.,  89,  130.) 


980 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  5. 


A  prompt  and  unhesitating  obedience  to 
orders  is  indispensable  to  the  complete  attain- 
ment of  the  oliject.  The  service  is  a  military 
service,  and  the  command  of  a  military  nature; 
and  in  such  cases  every  delay  and  every 
obstacle  to  an  efficient  and  immediate  compli- 
ance necessarilv  tends  to  jeopardize  the  public 
interests.     (Martin  v.  Mott,  12  Wheat.,  19,  30.) 

If  a  superior  officer  has  a  right  to  contest  the 
orders  of  the  President  upon  his  own  doubts 
as  to  the  exigency  ha\-ing  arisen,  it  must  be 
equally  the  right  of  every  inferior  officer  and 
soldier;  and  any  act  done  by  any  person  in 
furtherance  of  such  orders  would  subject  him 
to  responsibility  in  a  ci\'il  suit  in  which  his 
defense  must  finally  rest  upon  his  ability  to 
establish  the  facts  by  competent  evidence. 
Such  a  course  would  be  subversive  of  all 
discipline  and  expose  the  best  disposed  officers 
to  the  chances  of  ruinous  litigation.  (Martin 
V.  Mott,  12  WTieat.,  19,  30.) 

The  belief  of  a  subordinate  as  to  his  rights 
does  not  furnish  any  justification  for  his  disobe- 
dience of  orders.  For  there  would  be  an  end 
of  all  discipline  if  the  seamen  and  marines  on 
board  a  ship  of  war  on  a  distant  service  were 
permitted  to  act  upon  their  own  opinion  of  their 
rights,  and  to  throw  off  the  authority  of  the 
commander  whenever  they  supposed  it  to  be 
unlawfully  exercised.  (Dinsman  v.  Wilkes,  12 
How.,  390,  403.) 

For  other  cases,  as  to  duty  of  obeying  orders 
and  whether  illegal  order  is  a  defense  to  a  civil 
suit  against  the  subordinate  obeying  same, 
see  note  to  Constitution,  Article  I,  section  8, 
clause  13,  under  "Responsibility  of  military 
authorities  for  illegal  acts." 

Assault  and  battery. — An  "assault"  is  an 
attempt  which,  if_  consummated,  would  result 
in  a  battery.  It  is  essential  to  a  battery  that 
some  force  shall  be  actually  applied,  not  merely 
threatened  or  attempted  to  be  applied,  to  the 
person  of  another,  or  to  some  article  so  closely 
connected  with  his  person  as  to  be  regarded  as 
a  part  of  it.  And  the  conduct  of  a  soldier  in 
shooting  at  another,  without  hitting  him,  does 
not  constitute  an  assault  and  battery.  (An- 
derson V.  Crawford,  265  Fed.  Rep.,  504.) 

While  a  battery  always  includes  an  assault, 
assaults  often  fall  short  of  a  battery.  (An- 
derson V.  Crawford,  265  Fed.  Rep.,  504.) 

The  definition  of  an  assault  is  an  offer  or  at- 
tempt by  force  to  do  a  corporal  injury  to  another. 


as  if  one  person  strikes  at  another  with  his  hands 
or  with  a  stick  and  misses  him ;  for  if  the  other 
be  stricken,  it  is  a  battery  which  is  an  offense 
of  a  higher  grade.  (Anderson  v.  Crawford,  265 
Fed.  Rep.,  504.) 

See  note  to  article  43,  A.  G.  N.,  as  to  charges 
and  specifications. 

Desertion  in  time  of  war. — See  section 
1998,  Revised  Statutes,  as  amended  by  act  of 
August  22,  1912  (37  Stat.,  356),  providing  for 
disabilities  to  be  suffered  by  persons  who 
desert  in  time  of  war,  including  the  forfeiture 
of  the  rights  of  citizenship  and  incapacity  to 
hold  office  xmder  the  United  States.  See  also 
article  19,  A.  G.  N.,  as  amended  by  said  act  of 
August  22,  1912,  as  to  reenlistment  of  war-time 
deserters. 

The  provisions  of  sections  1996  and  1998, 
Re\dsed  Statutes,  which  subject  persons  de- 
serting the  military  service  of  the  United  States 
to  additional  penalties,  can  only  take  effect 
upon  conviction  by  a  court-martial.  (Kurtz 
V.  Moffitt,  115  U.  S.,  487,  501.  As  to  effect  of 
pardon,  see  note  to  Constitution,  Art.  II, 
sec.  2,  clause  1,  under  "III.  Power  to  pardon 
offenses  against  United  States,"  subheading, 
"The  effect  of  the  pardon  is  prospective.") 

See  note  to  article  8,  A.  G.  N..  as  to  definition 
of  desertion,  etc.  See  articles  61  and  62,  A.  G. 
N.  and  notes  thereto,  as  to  statute  of  limita- 
tions. 

"Time  of  war"  construed. — Whether  a 
condition  of  war  exists  within  the  articles  of 
war  relating  to  the  trial  of  certain  offenses  com- 
mitted by  soldiers  is  within  the  exclusive 
jurisdiction  of  the  political  department  of  the 
Government.  (Hamilton  v.  McClaughry,  136 
Fed.  Rep.,  445.) 

The  ' '  Boxer  uprising  "  in  China  in  June,  1900, 
during  which  the  United  States  assembled  an 
army  of  15,000  men,  over  5,000  of  whom  were 
ordered  to  and  did  proceed  to  China  to  assist 
the  forces  of  the  allied  nations  in  quelling  the 
uprising  and  to  release  the  accredited  repre- 
sentatives of  the  United  States  then  imprisoned 
\nthin  the  city  of  Pekin,  during  which  the 
pay  of  officers  and  men  in  the  United  States 
military  service  was  increased  to  a  war  basis, 
constituted  a  "time  of  war,"  within  the  articles 
of  war  providing  for  the  trial  of  certain  offenses 
by  military  coiu-t-martial.  (Hamilton  v.  Mc- 
Claughry, 136  Fed.  Rep.,  445.) 


Art.  5.  [Spies,  etc.]  All  persons  who,  in  time  of  war,  or  of  rebellion  against 
the  supreme  authority  of  the  United  States,  come  or  are  found  in  the  capacity 
of  spies,  or  who  bring  or  deliver  any  seducing  letter  or  message  from  an  enemy 
or  rebel,  or  endeavor  to  corrupt  any  person  in  the  Navy  to  betray  his  trust, 
shall  suffer  death,  or  such  other  punishment  as  a  court-martial  may  adjudge. — 
(17  July,  1862,  c.  204,  s.  1,  v.  12,  p.  602,  art.  4.  13  Feb.,  1862,  c.  25,  s.  4,  v. 
12,  p.  340.     3  Mar.,  1863,  c.  75,  s.  38,  v.  12,  p.  737.) 


-  "Time  of  war"  construed. — See  note  to 
article  4,  A.  G.  N. 

"Such,  other  punishment"  construed. — 
See  note  to  article  63,  A.  G.  N.,  under  "  Cruel 
and  unusual  punishments." 


Imprisonment  in  penitentiary. — See  arti- 
cle 7,  A.  G.  N. 

Punishment  of  persons  not  belonging 
to  Navy. — In  time  of  war  or  rebellion  the 
military   jurisdiction   is    extended    over    "aU 


981 


Sec.  1624,  Art.  6. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


persons''  found  lurkin<T  or  acting;  as  Rjues. 
Persons  who  do  not  belong  to  tlie  military 
eslal)lishniont,  who  are  not  a  part  of  the  Army, 
are  not  subject  to  military  jurisdiction  except 
in  the  cases  specifically  jirovided  for  by  law,  as, 
for  example,  where  they  come  within  the 
description  of  this  statute.  (16  Op.  Atty. 
Gen.,  13,  15,  referring  to  sec.  1343,  R.  S., 
relating  to  the  Army.) 

Certain  offenses  committed  by  persons  not 
belonging  to  the  Army,  and  which  affect  the 
safety,  the  government,  and  discipline  of  the 
Army,  are  by  statute  punishable  by  court- 
martial,  as,  for  example,  section  1343,  Revised 
Statutes,  by  which  spies  are  made  amenable 
to  militarv  justice.  (16  Op.  Atty.  Gen.,  292, 
294.) 

The  articles  of  war  denounce  penalties  only 
against  officers  and  soldiers,  vdth.  the  exception 
of  a  few  provisions  respecting  sutlers,  retainers 
to  the  camp,  and  persons  serving  with  the 
armies  in  the  field,  and  one  provision  respecting 
spies.  (Ex  parte  Henderson,  11  Fed.  Cas.  No. 
6,349.) 

Endeavor  to  corrupt  person  in  Marine 
Corps. — The  accused,  a  corporal  of  marines, 
was  charged  "with,  endeavoring  to  corrupt  two 
privates  belonging  to  a  marine  guard  on  board 
a  steamer  convening  state  prisoners  to  Fort 
Lafayette,  by  offering  them  a  large  pecuniary 
reward  if  they  would  assist  him  in  effecting  the 
escape  of  certain  of  the  prisoners.  The  prisoner 
was  convicted  of  one  of  the  gravest  offenses 
enumerated  in  the  calendar  of  naval  crimes. 
(10  Op.  Atty.  Gen.,  158.) 

Spy  outside  field  of  operations. — A  person 
apprehended  upon  United  States  territory  not 
under  martial  law,  who  had  not  entered  any 
camp,  fortification,  or  other  military  premises 
of  the  United  States,  and  who  had  not  come 
through  the  fighting  lines  or  field  of  military 
operations,  can  not  be  tried  as  a  spy  by  an 
Army  court-martial,  and  to  such  a  case  section 
1343,  Revised  Statutes,  and  article  82  of  the 
Articles  of  War,  can  not  be  applied.  (31  Op. 
Atty.  Gen.,  356.) 

German  spy  amenable  to  naval  court- 
martial. — Under  article  5,  A.  G.  N.,  the 
jurisdiction  of  a  naval  court-martial  to  punish 
a  German  spy  who  entered  the  United  States 
under  a  false  name  and  on  a  forged  passport, 
and  who  was  arrested  in  New  York  City,  can 
not  be  denied  on  the  ground  that  the  port  of 
New  York  was  outside  the  field  of  active 
operations  and  outside  the  theater  of  war. 
(U.  S.  V.  MacDonald,  265  Fed.  Rep.,  754.) 


Military  authorities  should  have  power  to  try 
spies  wherever  found ;  otherwise  they  may  not 
be  subject  to  trial  for  that  offense.  (U.  S.  v. 
MacDonald,  265  Fed.  Rep.,  754.) 

In  the  recent  World  War  the  field  of  opera- 
tions which  existed  after  the  United  States 
entered  the  war,  and  especially  in  regard  to 
naval  operations,  brought  the  port  of  New 
York  within  the  field  of  active  operations. 
With  the  progress  made  in  obtaining  ways  and 
means  for  devastation  and  destruction,  the 
territory  of  the  United  States  was  certainly 
v\ithin  the  field  of  active  operations.  Great 
numbers  of  troops  were  being  sent  abroad, 
and  in  large  numbers  sailing  from  the  port  of 
New  York;  vessels  loaded  with  ammunition 
and  suppUes  for  the  Army  were  daily  leaving 
this  port;  German  submarines  v\'ere  landing, 
unheralded  and  unaware,  in  our  ports  before 
the  United  States  entered  the  war;  ships  were 
being  destroyed  ^\ithin  easy  distance  of  the 
Atlantic  coast;  there  was  the  constant  threat  of 
airships  above  the  harbor  and  city  of  New 
York  on  missions  of  destruction.  A  spy  of  the 
enemy  might  v,'ell  have  aided  these  hostile 
operations.  It  is  not  necessary  that  it  be  said 
of  the  accused  that  he  entered  forts  or  armed 
encampments  for  the  purposes  of  his  mission; 
it  is  sufficient  if  he  was  here  on  the  mission  of 
a  spy  and  communicated  his  intelligence  or 
information  to  the  enemv\  (U.  S.  r.  Mac- 
Donald, 265  Fed.  Rep.,  754.) 

Under  international  law,  spyingis  not  a  crime, 
and  the  offense  against  the  laws  of  war  consists 
of  being  found  during  the  war  in  the  capacity 
of  a  spy.  The  guaranties  of  the  Constitution 
apply  only  where  a  crime  is  charged,  and  a 
"crime' '  means  an  offense  against  the  Govern- 
ment as  understood  when  the  Constitution  was 
adopted,  which  does  not  include  the  offense 
of  being  a  spy.  (U.  S.  v.  MacDonald,  265  Fed. 
Rep.,  754.) 

This  article  is  applicable  to  all  persons  acting 
as  spies,  whether  citizens  of  the  United  States 
or  not.  (U.  S.  v.  MacDonald,  265  Fed.  Rep., 
754.) 

Spies  who  were  present  m  our  midst  were 
dangerous  agencies  of  war,  and  it  is  proper  that 
the  naval  authorities  deal  with  them  as  the 
act  of  Congress  provides  that  courts-martial 
might.  Whatever  may  be  the  right  of  an  alien 
to  protection  of  the  law  in  this  country,  he 
surrenders  his  right  to  constitutional  protection 
when  he  joins  the  armed  forces  of  an  alien 
enemv,  assuming  duties  as  a  spv^  (U.  S.  v. 
MacDonald,  265  Fed.  Rep.,  754.) " 


Art.  6.  [Murder.]  If  any  person  belonging  to  any  public  vessel  of  the 
United  States  commits  the  crime  of  murder  without  the  territorial  jurisdiction 
thereof,  he  may  be  tried  by  court-martial  and  punished  with  death. — (17  July, 
1862,  c.  204,  s.  1,  V.  12,  p.  602,  art.  5.) 

murder  on  the  high  seas,  it  appeared  in  their 
defense  that  they  arrested  a  member  of  the 
crev  on  a  charge  of  mutinous  conspiracy  with 
others  of  the  crew  to  murder  the  officers  and 
piratically  possess  themselves  of  the  vessel; 
that  after  detaining  the  prisoner  for  sev^eral 
days  they  ordered  him  to  be  put  to  death  under 
apprehension  of  his  rescue  by  his  confederates 
and  in  the  belief  that  there  was  no  other  means 


Jurisdiction  of  manslaughter. — See  note 
to  article  22,  A.  G.  N. 

Under  a  charge  of  murder,  courts-martial  as 
well  as  criminal  courts  of  law  may  convict  the 
accused  of  manslaughter.  (U.  S.  v.  Mackenzie, 
30  Fed.  Cas.  No.  18313.) 

Execution  of  subordinate  without  trial — 
Upon  alle;:!;ation  that  officers  of  the  U.  S.  Lria: 
Soiners  in  1842  had   committed  the  crime  of 


982 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  7 


of  sa\'ing  the  ship  and  the  lives  of  the  officers; 
hdd  that  the  setting  up  of  an  accusation  of 
this  character  against  the  deceased,  under 
\vhate^  er  solemnity  of  asserveration,  most  cer- 
tainly can  not  be  received  as  a  justification  for 
emplojang  the  last  extreme  of  power  by  the 
accused;  that  the  watchful  solicitude  of  the 
law  over  life  and  personal  security  can  not  be 
so  quieted  or  satisfied;  that  the  necessity  of 
the  case  must  be  made  apparent  beyond  any 
fair  ground  to  doubt  before  any  functionary, 
under  whatever  plenitude  of  power,  can  on 
his  own  mandate  take  the  life  of  a  citizen. 
Nevertheless,  held  further  that  a  civil  court 
of  the  United  States  will  not  grant  a  warrant  to 
arrest  the  aforesaid  officers  pending  completion 
of  proceedings  before  a  court  of  inquiry,  which 
had  been  ordered  by  the  Secretary  of  the 
Navy,  of  which  court  the  United  States  attor- 
ney for  the  district  was  judge  advocate,  even 
though  the  offense  were  one  ^vithin  the  juris- 
diction of  the  civil  courts  to  punish.  (U.  S.  v. 
Mackenzie,  26  Fed.  Cas.  No.  15690;  see  also 
U.  S.  V.  Mackenzie,  30  Fed.  Cas.  No.  18313; 
and  see  note  to  Constitution,  Art.  I,  sec.  8, 
cl.  14,  under  ''V.  Jurisdiction  of  civil  courts.  ") 

Jurisdiction  of  civil  courts. — The  civil 
courts  of  the  United  States  are  without  juiis- 
diction  to  try  the  commanding  officer  of  a  naAal 
vessel  on  a  charge  of  murder  or  manslaughter, 
gromng  out  of  his  conduct  in  executing  certain 
subordinates  on  board  the  U.  S.  Brig  Somers 
in  1842,  the  jurisdiction  of  a  naval  court-mar- 
tial in  such  case  being  exclusive  under  the 
existing  legislation  of  Congress.  (U.  S.  v. 
Mackenzie,  30  Fed.  Cas.  No.  18313;  see  note 
to  Constitution,  Art.  I,  sec.  8,  cl.  14,  under 
"V.  Jurisdiction  of  cixdl  courts.  ") 

In  the  case  of  Commander  Mackenzie,  the 
charge  of  Mr.  Justice  Betts  is  legal  authority 
to  the  point  that  a  court-martial  ha\'ing  law- 
fully entered  upon  the  cognizance  of  a  case, 
the  civil  magistrate  can  not  lawfully  interrupt 


or  disturb  its  jurisdiction  and  right  of  complete 
and  final  action.  (6  Op.  Atty.  Gen.,  426, 
427.) 

Concurrent  jurisdiction  of  civil  and  naval 
courts. — Article  6,  A.  G.  N.,  does  not  vest 
exclusive  jurisdiction  in  a  naval  coiut-martial 
of  the  crime  of  mui'der.  The  general  rule  is 
that  jurisdiction  of  civil  courts  is  concurrent 
as  to  offenses  triable  before  courts-martial. 
Accordingly,  held  that  homicide  committed  on 
a  naval  hospital  ship  at  Olongapo,  P.  I.,  by  a 
member  of  the  civilian  crew  may  be  tried  by  a 
Federal  court  in  the  first  judicial  district  of 
the  United  States  to  which  the  offender  is 
brought,  (^om-ts  of  the  Philippine  Islands 
did  not  have  jurisdiction  in  this  case,  as  the 
offense,  if  any,  was  against  the  United  States 
and  the  Philippine  courts  only  have  jurisdic- 
tion of  offenses  against  the  Philippine  Govern- 
ment. It  does  not  appear  upon  what  grounds 
the  assumption  rests  that  a  nav'al  com't-martial 
has  not  jurisdiction  under  article  8,  A.  G.  N. 
But  since  there  is  reasonable  doubt  as  to  the 
applicability  of  this  article  to  the  offense,  such 
doubt  should  be  resolved  against  a  trial  before 
a  court-martial  which  is  a  coiu^t  of  limited 
jurisdiction.  (28  Op.  Atty.  Gen.,  24.  Note. — 
According  to  regulations  then  in  force,  the 
master  and  crew  of  naval  hospital  ships  and 
naval  auxiliaries  were  civilians,  and  in  practice 
were  held  not  subject  to  the  Articles  for  the 
Government  of  the  Navy,  or  to  trial  by  court- 
martial.) 

Naval  court-martial  without  jurisdic- 
tion.— Naval  courts-martial  may  not  try  and 
punish  murder  which  they  suppose  to  have 
been  committed  on  board  a  frigate  at  Norfolk. 
Jm"isdiction  in  such  cases  belongs  to  the  civil 
tribunals.  (5  Op.  Atty.  Gen.,  698;  compare 
note  to  Constitution,  Art.  I,  sec.  8,  cl.  14,  under 
"V.  Jurisdiction  of  civil  courts,"  as  to  juris- 
diction of  civil  authorities  of  the  crime  of 
murder  committed  on  board  a  naval  vessel.) 


Art.  7.  [Imprisonment  in  penitentiary.]  A  naval  court-martial  may 
adjudge  the  punishment  of  imprisonment  for  life,  or  for  a  stated  term,  at  hard 
labor,  in  any  case  where  it  is  authorized  to  adjudge  the  punishment  of  death; 
and  such  sentences  of  imprisonment  and  hard  labor  may  be  carried  into  exe- 
cution in  any  prison  or  penitentiary  under  the  control  of  the  United  States, 
or  which  the  United  States  may  be  allowed,  by  the  legislature  of  any  State,  to 
use;  and  persons  so  imprisoned  in  the  prison  or  penitentiary  of  any  State  or 
Territory  shall  be  subject,  in  all  respects,  to  the  same  discipline  and  treatment 
as  convicts  sentenced  by  the  courts  of  the  State  or  Territory  in  which  the  same 
maybesituated.— (17  July,  1862,  c.  204,  s.  l,v.  12,  p.  602,  art.  6.) 


Imprisonment  in  cases  not  puxdshable 
by  death. — A  naval  court-martial,  upon  con- 
viction of  an  offense  not  capital,  may  sentence 
to  imprisonment  at  lard  labor.  (12  Op.  Atty. 
Gen.,  510.) 

The  right  to  impose  imprisonment  at  hard 
labor  is  not  limited  to  cases  of  conviction  of 
offenses  which  may  be  punished  capitally, 
notwithstanding  that  the  construction  given 
to  this  law  by  the  Navy  Department  from  the 
time  of  its  enactment  has  been  that  punishment 
by  imprisonment  at  hard  labor  in  a  penitentiar\- 


under  sentence  of  a  naval  court-martial  could 
be  inflicted  only  in  the  case  expressed  in  the 
law;  that  is,  a  case  where  a  naval  court-martial 
is  authorized  to  adjudge  the  punishment  of 
death.     (12  Op.  Atty.  Gen.,  510.) 

Article  7,  section  1624,  Revised  Statutes,  is 
the  only  statute  now  in  force  authorizing 
sentences  to  hard  labor  in  a  public  penitentiary 
by  a  naval  court-martial;  therefore,  such 
punishment  can  not  be  inflicted  except  in  the 
cases  punishable  by  death,  enumerated  in  the 
2)  clauses  of  article  4.     The  expression  of  one 


983 


Sec.  1624,  Art.  8. 


Ft.  2.  REVISED  STATUTES. 


The  Navy. 


thing  is  the  exclusion  oi  another.  (Ex  parte 
Van  Vranken,  47  Fed.  Rep.,  888;  reversed  in 
163  U.  S.,  &J4,  without  opinion.) 

Where  a  seaman  was  charged  ^^'ith  deserting, 
and  the  court-martial  found  him  guilty  of 
attemi)ting  to  desert,  the  court  had  jurisdiction 
over  the  subject  matter,  and  an  action  of 
trespass  for  false  imprisonment  will  not  lie 
against  the  ministerial  oflicer  who  executes 
tiie  sentence  of  imprisonment  in  the  peniten- 
tiary of  the  District  of  Columbia,  at  hard  labor, 
for  attempting  to  desert.  (Dynes  v.  Hoover, 
20  How.,  65.) 

Courts-martial,  in  cases  within  their  la^vful 
jurisdiction,  may  condemn  persons  to  impri?on- 
ment  at  hard  labor  in  the  penitentiary  of  the 
District  of  Columbia  in  punishment  of  crime. 
This  is  too  well  settled  to  be  now  open  to  ques- 
tion.    (10  Op.  Atty.  Gen.,  248.) 

Miscellaneous. — A  naval  court-martial  may 
lawfully  sentence  a  seaman  to  confinement  at 
hard  labor  in  the  penitentiary  in  the  District 
of  Columbia  for  striking,  disobeying,  and  treat- 
ing with  contempt  his  superior  officer.  (9  Op. 
Atty.  Gen.,  80.)        _  _ 

For  an  offense  against  article  12,  act  April  23, 
1800  (2  Stat.,  45;  now  art.  5,  sec.  1624,  R.  S.), 
a  marine  general  court-martial  may  legally 
sentence  the  prisoner  to  imprisonment  in  the 


penitentiary  of  the  District  of  Coliunbia  at 
hard  labor  for  a  term  of  years,  that  punishment 
not  being  against  the  usages  of  the  service. 
(10  Op.  Atty.  Gen.,  158.) 

For  other  cases,  see  note  toarticle  14,  A.  G.  N. 

Transportation  to  penitentiary — A  pris- 
oner sentenced  by  an  Army  court-martial  to 
confinement  in  a  penitentiary  of  the  United 
States  should  not  be  turned  over  to  a  marshal, 
but  should  be  conducted  to  the  prison  by  the 
proper  officers  of  the  War  Department.  (21 
Op.  Atty.  Gen.,  204.  But  see  Dynes  v.  Hoover, 
20  How.,  65,  78,  where  it  appears  that  prisoner 
was  turned  over  to  the  marshal  for  the  District 
of  (^olumbia,  who  received  him  and  committed 
him  to  the  keeper  of  the  penitentiary,  and  it 
was  held  that  the  marshal  was  authorized  to 
receive  the  prisoner  and  to  turn  him  over  to 
the  keeper.) 

A  statute  providing  for  the  transportation  of 
all  United  States  prisoners  sentenced  to  im- 
prisonment in  a  United  States  penitentiary  held 
applicable  only  to  prisoners  convicted  by  the 
civil  courts  of  the  United  States.  (21  Op. 
Atty.  Gen.,  204.) 

Transportation,  clothing',  and  gratuity 
on  discharge. — See  acts  of  February  16,  1909, 
section  13  (35  Stat.,  622),  and  March  3,  1909 
(35  Stat.,   756). 


Art.  8.  [Offenses  punishable  at  discretion  of  court-martial.]  Such  punish- 
ment as  a  court-martial  may  adjudge  may  be  inflicted  on  any  person  in  the 
Navy— (17  July,  1862,  c.  204,  s.  1,  v.  12,  p.  602,  art.  7.) 

First.  [Profanity,  falsehood,  &c.]  Who  is  guilty  of  profane  swearing, 
falsehood,  drunkenness,  gambling,  fraud,  theft,  or  an}^  other  scandalous  con- 
duct tending  to  the  destruction  of  good  morals; 

Second.  [Cruelty.]  Or  is  guilty  of  cruelty  toward,  or  oppression  or  mal- 
treatment of,  any  person  subject  to  liis  orders; 

Third.  [Quarreling.]  Or  quarrels  with,  strilies,  or  assaults,  or  uses  pro- 
voking or  reproachful  words,  gestures,  or  menaces  toward,  any  person  in  the 
Navy; 

Fourth.  [Fomenting  quarrels.]  Or  endeavors  to  foment  quarrels  be- 
tween other  persons  in  the  Navy; 

Fifth.  [Duels.]  Or  sends  or  accepts  a  challenge  to  fight  a  duel  or  acts  as 
a  second  in  a  duel; 

Sixth.  [Contempt  of  superior  officer.]  Or  treats  his  superior  oflicer 
with  contempt,  or  is  disrespectful  to  him  in  language  or  deportment,  while  in  the 
execution  of  his  office; 

Seventh.  [Combinations  against  commanding  officer.]  Or  joins  in  or 
abets  any  combination  to  weaken  the  lawful  authority  of,  or  lessen  the  respect 
due  to,  his  commanding  officer; 

Eighth.  [Mutinous  words.]  Or  utters  any  seditious  or  mutinous 
words;— (23  April,  1800,  c.  33,  art.  13,  v.  2,  p.  47.)" 

Ninth.  [Neglect  of  orders.]  Or  is  negligent  or  careless  in  obeying 
orders,  or  culpably  inefficient  in  the  performance  of  duty; 

Tenth.  [Preventing  destruction  of  public  property.]  Or  does  not 
use  his  best  exertions  to  prevent  the  unlawful  destruction  of  public  property 
by  others;— (23  April,  1800,  c.  33,  art.  25,  v.  2,  p.  48.) 


984 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  8- 


Eleventh.  [Negligent  stranding.]  Or,  through  inattention  or  negli- 
gence, suffers  any  vessel  of  the  Navy  to  be  stranded,  or  run  upon  a  rock  or 
shoal,  or  hazarded; 

Twelfth.  [Negligence  in  convoy  service.]  Or,  when  attached  to  an}^ 
vessel  appointed  as  convoy  to  any  merchant  or  other  vessels,  fails  diligently 
to  perform  his  duty,  or  demands  or  exacts  any  compensation  for  his  services, 
or  maltreats  the  officers  or  crews  of  such  merchant  or  other  vessels; 

Thcrteenth.  [Receiving  articles  for  freight.]  Or  takes,  receives,  or 
permits  to  be  received,  on  board  tiie  vessel  to  which  he  is  attached,  any  goods 
or  merchandise,  for  freight,  sale,  or  traffic,  except  gold,  silver,  or  jewels,  for 
freight  or  safe-keeping;  or  demands  or  receives  any  compensation  for  the 
receipt  or  transportation  of  any  otlier  article  than  gold,  silver,  or  jewels,  with- 
out authority  from  the  President  or  Secretary  of  the  Navy; 

Fourteenth.  [False  muster.]  Or  knowingly  makes  or  signs,  or  aids, 
abets,  directs,  or  procures  the  making  or  signing  of,  any  false  muster; 

Fifteenth.  [Waste  of  public  property,  &c.]  Or  wastes  any  ammuni- 
tion, provisions,  or  other  public  property,  or,  having  power  to  prevent  it, 
knowingly  permits  such  waste; 

Sixteenth.  [Plundering  on  shore.]  Or,  when  on  shore,  plunders, 
abuses,  or  maltreats  any  inhabitant,  or  injures  his  property  in  any  way; 

Seventeenth.  [Refusing  to  apprehend  offenders.]  Or  refuses,  or 
fails  to  use,  his  utmost  exertions  to  detect,  apprehend,  and  bring  to  punishment 
all  offenders,  or  to  aid  all  persons  appointed  for  that  purpose; 

Eighteenth.  [Refusing  to  receive  prisoners.]  Or,  when  rated  or  act- 
ing as  master-at-arms,  refuses  to  receive  such  prisoners  as  may  be  committed 
to  his  charge,  or,  having  received  them,  suffers  them  to  escape,  or  dismisses 
them  without  orders  from  the  proper  authority; 

Nineteenth.  [Absence  from  dlty  without  leave.]  Or  is  absent  from 
his  station  or  duty  without  leave,  or  after  his  leave  has  expired; 

Twentieth.  [Violating  general  orders  or  regulations.]  Or  violates 
or  refuses  obedience  to  any  lawful  general  order  or  regulation  issued  by  the 
Secretary  of  the  Navy; 

Twenty-first.  [Desertion  in  time  of  peace.]  Or,  in  time  of  peace, 
deserts  or  attempts  to  desert,  or  aids  and  entices  others  to  desert;  [See 
§§1996-1998.] 

Twenty-second.  [Harboring  deserters.]  Or  receives  or  entertains 
any  deserter  from  any  other  vessel  of  the  Navy,  knowing  him  to  be  such,  and 
does  not,  with  all  convenient  speed,  give  notice  of  such  deserter  to  the  com- 
mander of  the  vessel  to  which  he  belongs,  or  to  the  commander-in-chief,  or  to 
the  commander  of  the  squadron. — (23  April,  1800,  c.  33,  art.  17,  v.  2,  p.  47.) 


Discretionary  punislunent. — For  offenses 
defined  by  article  8,  A.  (i.  N.,  a  court-martial 
may  impose  the  sentence  of  forfeiture  of  pay, 
both  due  and  to  become  due,  though  fines  or 
forfeitures  are  not  in  terms  authorized  as  a  pun- 
ishment by  that  article.  (Williams  v.  U.  S., 
24  Ct.  Cls.,  306.) 

The  fact  that  article  14,  A.  G.  N.,  expressly 
authorizes  fines  for  the  punishment  of  the  of- 
fenses therein  entunerated,  does  not  operate  to 


exclude  forfeiture  of  pay  for  offenses  enum- 
erated in  article  8.  (Williams  v.  U.  S.,  24  Ct. 
Cls.,  306.) 

See  note  to  articles  7.  A.  G.  N.,  as  to  impris- 
onment in  penitentiary;  note  to  article  48,  A. 
G.  N.,  as  to  forfeiture  of  pay;  and  note  to  article 
63,  as  to  limitations  of  punishment  in  time  of 
peace. 

Drunkenness. — \Miile  drunkenness  is  not 
ordinarily  considered  as  criminal,  the  intoxi- 


985 


Sec.  1624,  Art.  8. 


Ft.  2.  REVISED  STATUTES. 


The  Navy. 


cation  of  a  naval  officer,  while  on  duty,  is  a 
gross  breach  of  discipline  and  liable  to  be  at- 
tended by  very  serious  consequences.  (Bishop 
V.  V.  S.,  197  U.  S.,  334,  3-13.) 

An  officer  of  the  Army  was  charged  ^^ith 
"habitual  drunkenness";  found  guilty  of  "con- 
duct prejudicial  to  good  order  and  military  dis- 
cipline in  being  drunk  on  various  occasions." 
Held,  that  when  it  appears  that  an  offense  pf 
which  an  officer  was  conx-icted  is  embraced  in 
the  one  with  which  he  was  charged,  it  is  a  lesser 
o flense  of  the  same  character  and  the  convic- 
tion is  authorized  bv  the  articles  of  war. 
(Rankhead  v.  U.  8.,  20  Ct.  Cls.,  405.) 

Various  acts  of  drunkenness  prejudicial  to 
good  order  and  military  discipline  may  be 
found  by  a  court-martial  as  a  "partial  verdict" 
^nthin  the  decision  of  the  Supreme  Court  in 
Dynes  v.  Hoover  (20  How.,  65),  though  the 
charge  be  habitual  drunkenness.  (Bankhead 
V.  U.  S.,  20  Ct.  Cls.,  405.) 

Falsehood. — :See  note  to  article  22,  A.  G. 
N.,  as  to  conduct  unbecoming  an  officer  and  a 
gentleman. 

Fraud. — There  are  two  broad  classes  of 
fraud  under  the  Articles  for  the  Government  of 
the  Navy,  viz,  fraud  against  the  United  States 
and  fraud  not  against  the  United  States.  The 
first  class  is  punishable  under  article  14,  A.  G. 
N.,  and  the  other  under  article  8,  A.  G.  N. 
(Naval  Dig.,  1916,  p.  245;  C.  M.  0.  4,  1916.) 

To  constitute  fraud  against  a  private  person, 
in  violation  of  article  8,  A.  G.  N.,  the  specifi- 
cation must  show  that  such  person  had  actually 
been  defrauded  by  and  parted  with  something 
of  value  in  consequence  of  the  false  representa- 
tions of  the  accused.  If  the  accused  had  not 
actually  defrauded  the  person  concerned,  the 
specification  might  be  laid  under  a  charge  of 
"attempt  to  commit  fraud."  (Nav.  Dig.,  1916, 
p.  245;  C.  M.  O.  4,  1916.) 

Scandalous  conduct  tending  to  the  de- 
struction of  good  morals. — See  note  to  ar- 
ticle 22,  A.  G.  N.,  as  to  charge  of  scandalous 
conduct  tending  to  the  destruction  of  good 
morals,  in  violation  of  that  article. 

By  the  Articles  for  the  Government  of  the 
Navy  of  April  23,  1800  (2  Stat.,  45),  it  was  pro- 
vided in  article  3  that  officers  or  enlisted  men 
guilty  of  "oppression,  cruelty,  fraud,  profane 
swearing,  drunkenness,  or  any  other  scandalous 
conduct  tending  to  the  destruction  of  good 
morals"  should  be  punished  as  therein  pre- 
scribed, viz,  in  the  case  of  an  enlisted  man, 
that  he  be  put  in  irons  or  flogged,  at  the  discre- 
tion of  the  captain,  not  exceeding  12  lashes;  or 
if  the  offense  required  severer  punishment, 
that  he  be  tried  by  a  court-martial  and  suffer 
such  punishment  as  said  court  should  inflict. 
The  question  whether  disobedience  of  orders 
was  such  conduct  as  covered  by  said  article  3, 
discussed  but  not  decided,  as,  if  not  punishable 
under  said  article,  it  was  punishable  under 
article  30,  limiting  the  punishments  to  be  in- 
flicted by  commanding  oflicers  of  their  own 
authority  (see  art.  24,  sec.  1624,  R.  S.);  and  if 
not  punishable  under  either  of  said  articles,  it 
was  punishable  under  article  32,  which  pro- 
vided that  "all  crimes  committed  by  persons 
belonging  to  the  Navy,  which  are  not  specified 
in  the  foregoing  articles,  shall  be  punished  ac- 
cording to  the  laws  and  customs  in  such  cases 


at  sea."  (Wilkes  v.  Dinsman,  7  How.,  89, 
127.  Note. — Disobedience  of  orders  was  spe- 
cifically provided  for,  to  be  punished  by  court- 
martial,  by  article  14  of  the  said  act  of  1800.) 

A  charge  against  an  enlisted  man  of  the  Navy 
for  scandalous  conduct  tending  to  the  destruc- 
tion of  good  morals,  in  that  on  one  occasion  he 
made  an  affida^■it  confessing  certain  frauds 
against  the  Government,  while  on  another 
occasion  he  testified  under  oath,  before  a  duly 
constituted  court  of  inquiry,  and  denied  the 
truth  of  his  former  statements,  was  sufiicient 
under  article  8,  A.  G.  N.,  notvidthstanding  that 
the  specification  did  not  aver  which  of  said 
statements  was  false,  as  requii'ed  in  a  charge  of 
perjury,  but  concluded  by  averring  that"  the 
accused  did,  "by  submitting  the  said  written 
statement  or  confession,  and  by  testifying  as 
above  shown,  make  statements  inconsistent 
the  one  with  the  other,  and  one  of  which  must 
have  been,  and  was,  known  by  him  to  be  false 
and  misleading,  and  intended  to  deceive  and 
defeat  the  ends  of  justice."  (Ex  parte  Dickey, 
204  Fed.  Rep.,  322.) 

Wliere  the  pleading  upon  which  the  accused 
was  tried  made  a  substantial  charge  of  false 
swearing,  although  it  cUd  not  set  forth  the 
charge  with  the  clearness  and  definiteness  re- 
quired in  a  civil  court,  held  that  it  was  suffi- 
cient; that  the  pleadings  did  not  attempt  to 
charge  the  accused  with  "perjuiy,"  but  al- 
leged a  lesser  offense  than  "perjury,"  viz, 
"scandalous  conduct  tending  to  the  clestruc- 
tion  of  good  morals" ;  and  that  the  specification 
was  not  objectionable  in  that  it  did  not  allege 
which  statement  was  true  or  which  was  false. 
(Ex  parte  Dickey,  204  Fed.  Rep.,  322,  324; 
see  also  note  to  art.  43,  A.  G.  N.) 

The  general  charge  of  scandalous  conduct 
tending  to  the  destruction  of  good  morals  is 
well  knowTi  in  courts-martial,  and  authorized 
by  article  8  of  the  Articles  for  the  Government 
of  the  Navy.  (Ex  parte  Dickey,  204  Fed. 
Rep.,  322,  324.) 

Assavilting  another  person  in  the  Navy. — 
See  note  to  article  4,  A.  G.  N.,  as  to  definition 
of  assault;  and  see  note  to  article  22,  A.  G.  N., 
under  "Conduct  to  the  prejudice  of  good  order 
and  discipline." 

Contempt  of  superior  o£&cer. — See  note 
to  article  4,  A.  G.  N.,  as  to  construction  of 
"superior  officer." 

The  term  "superior  officer"  includes  an 
officer  of  the  line,  senior  in  rank  to  another  line 
officer  of  the  same  grade,  although  not  asso- 
ciated on  duty  together  with  the  right  of  com- 
mand and  requirement  of  obedience.  The 
fact  that  the  two  officers  may  be  "so  nearly 
of  the  same  seniority  "  is  necessarily  immaterial. 
(C.  M.  O.  5,  1917.  In  this  case  the  officer  was 
charged  with  conduct  unbecoming  an  officer 
and  a  gentleman  in  writing  and  publishing  a 
letter  containing  "abusive,  disrespectful,  and 
defamatory  "  language  of  and  about  a  superior 
officer,  in  violation  of  article  22,  A.  G.  N.,  and 
not  with  a  violation  of  article  8,  A.  G.  N.) 

Receiving  articles  for  freight,  etc. — 
The  wide  cliscretion  possessed  by  the  com- 
manding officer  oi  a  naval  vessel  concerning 
the  receipt  on  board,  for  the  protection  of 
private  rights,  of  gold,  siher,  or  jewels,  which 
it   was   the   ob\'ious  purpose    of  this  article 


986 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  8. 


(par.  13 )  not  to  modify,  since  the  power  as  to 
such  articles  was  excepted  from  the  additional 
limitation  which  the  statute  imposed  as  to 
other  articles,  affords  no  ground  for  the  implica- 
tion that  contract  obligations  would  automati- 
cally arise  as  against  the  United  States  from  the 
mere  exercise  by  the  commanding  officer  of 
his  discretion.  (Cartas  v.  U.  S.,  250  U.  S.,  545, 
affirming  48  Ct.  Cls.,  161.) 

The  Secretary  of  the  Navy  can  not  deprive 
a  commanding  officer  of  his  right  to  compen- 
sation for  transportation  of  gold.  (Phillips 
V.  U.  S.  Grain  Corporation,  279  Fed.  Rep., 
244.) 

Paragiaph  13  of  article  8,  A.  G.  N.,  recog- 
nizes and  limits  the  preexisting  discretion  of 
commanding  officers  to  receive  property  on 
board  for  the  protection  of  private  rights;  and 
neither  under  this  statute  nor  under  the  Navy 
Regulations,  by  which  compensation  for  the 
permitted  service  is  to  be  applied  to  the  benefit 
of  officers  and  men,  does  such  a  deposit  of  gold 
give  rise  to  any  contract  with  the  United 
States.  (Cartas  v.  U.  S.,  250  U.  S.,  545,  afiirm- 
ing48Ct.  Cls.,161.) 

The  Government  does  not  become  a  common 
earner;  the  Na\'y  Regulations  negative  any 
such  assumption  by  providing  that  a  captain 
who  is  to  receive  a  part  of  the  freight  as  com- 
pensation "shall  be  responsible."  (Cartas  v. 
U.  S.,  48  Ct.  Cls.,  161.) 

A  suit  can  not  be  maintained  against  the 
United  States  to  recover  back  the  value  of 
gold  deposited  with  the  commanding  officer  of 
a  naval  vessel  for  safe-keeping,  and  turned 
over  by  him  to  a  party  who,  the  captain  of  the 
vessel  had  good  reason  to  believe,  was  entitled 
to  receive  it.  The  Government  is  not  liable 
for  the  miscarriage  of  a  naval  officer  under 
this  law  and  the  Navy  regulation  made  pursu- 
ant thereto.  (Cartas  v.  U.  S.,  48  Ct.  Cls., 
161.) 

Maltreating  inhabitants  on  shore. — It 
is  a  matter  well  known  that  the  march,  even  of 
an  army  not  hostile,  is  often  accompanied  with 
acts  of  ^•iolence  and  pill-age  by  straggling 
parties  of  soldiers  which  the  most  rigid  discip- 
line is  hardly  able  to  prevent.  The  act  of 
March  3,  1863,  sectioii  30  (12  Stat.,  736),  was 
enacted  to  protect  citizens  not  in  the  military 
8er\ice  fi'om  the  \aolence  of  soldiers.  But 
said  section  did  not  make  the  jurisdiction  of 
the  military'  tribunals  exclusive  of  that  of  the 
State  courts.  (Coleman  v.  Tennessee,  97  U. 
S.,  509,  513.) 

Desertion  defined.— Desertion  may  in 
general  be  defined  to  be  the  willful  abandon- 
ment of  the  military  service  by  a  soldier  or 
officer  duly  enlisted  "or  in  the  pay  of  the  Gov- 
ernment, without  leave  and  without  an  inten- 
tion to  return.     (15  Op.  Atty.  Gen.,  152,  158.) 

Under  regulations  of  the  Navy  Department 
relating  to  the  paj-ment  of  rewards,  a  ' '  deserter  " 
is  one  who  is  absent  without  leave  and  with  a 
manifest  intention  not  to  return,  while  a 
"  straggler "  is  one  absent  without  leave  Avith 
the  probability  that  he  does  not  intend  to  de- 
sert, but,  if  his  absence  continues  for  10  days, 
he  becomes  a  deserter.  (Reed  v.  U.  S.,  252 
Fed.  Rep.,  21.) 


Desertion  exclusively  a  military  of- 
fense.—A  court-martial  has  exclusive  juris- 
diction to  try  a  party  duly  enlisted  in  the 
Army  for  the  military  offense  of  desertion.  (In 
re  WTiite,  17  Fed.  Rep.,  723.) 

From  the  very  year  of  the  Declaration  of 
Independence  Congress  has  dealt  "with  deser- 
tion as  exclusively  a  military  crime,  triable  and 
punishable  in  time  of  peace,  as  well  as  in  time 
of  war,  by  court-martial  only,  and  not  by  the 
ci\il  tribunals.  (Kmtz  v.  Moffitt,  115  U.  S., 
487,  501.) 

Attempting  to  desert. — '^Tiere  a  seaman 
was  charged  with  deserting,  and  the  court- 
martial  found  him  guilty  of  attempting  to  de- 
sert, the  comi;  had  jurismction  over  the  subject 
matter,  and  an  action  of  trespass  for  false  im- 
prisonment would  not  lie  against  the  ministerial 
officer  who  executed  the  sentence  of  imprison- 
ment for  attempting  to  desert.  (Dynes  v. 
Hoover,  20  How.,  65.  Note  that  "attempting 
to  desert "  is  specifically  pro\ided  for  by  par.  21 
of  art.  8,  A.  G.  N.) 

Desertion  by  one  illegally  enlisted. — See 
notes  above,  under  preamble  to  section  1624, 
entitled  "Void  enlistment,"  and  "Voidable 
enlistment. ' ' 

Apprehension  of  deserters. — See  note  to 
Constitution,  fourth  amendment,  under  "Ar- 
rest of  military  offenders." 

A  police  officer  of  a  State  or  a  private  citizen 
has  no  authority  as  such,  without  any  warrant 
or  military  order,  to  arrest  and  detain  a  de- 
serter from  the  Army  of  the  United  States. 
Section  1014,  Re\'ised  Statutes,  which  pro%dde3 
that  "for  any  crime  or  offense  against  the 
United  States"  the  offender  may  be  arrested 
and  imprisoned,  etc.,  manifestly  applies  to 
proceedings  before  the  civil  courts  only. 
(Kurtz  V.  Moffitt,  115  U.  S.,  487.) 

The  arrest  of  deserters  from  the  Navy  by 
ci\il  officers  is  now  pro\ided  for  by  act  of  Feb- 
ruary 16,  1909,  section  15  (35  Stat.,  622).  A 
similar  enactment  for  the  Anny  was  contained 
in  act  of  June  18,  1898  (.30  Stat.,  484 ). 

Under  the  Criminal  Code,  section  32  (act 
Mar.  4,  1909,  35  Stat.,  1095),  declaring  that 
whoever,  with  intent  to  defraud  either  the 
United  States  or  any  person,  shall  falsely  as- 
sume or  pretend  to  be  an  officer  acting  under 
the  authority  of  the  United  States,  etc.,  shall 
be  punished  as  therein  pro\T.ded,  held  that  de- 
tectives engaged  in  aiTesting  naval  deserters 
and  stragglers  for  the  reward  prescribed  by  the 
regulations  must  be  deemed  guilty  of  the  of- 
fense denounced  where  they  represented  to 
enlisted  men  arrested  as  stragglers  that  they 
were  naval  officers.  (Reed  v.  U.  S.,  252  Fed. 
Rep.,  21.) 

Making  good  time  lost  by  absence. — The 
article  of  war  requiring  enlisted  men  to  make 
good  time  lost  by  desertion  from  the  Anny  ap- 
plies to  a  solcher  who  has  been  convicted  of 
desertion,  or  ha\ing  deserted  is  restored  to  duty 
without  trial,  which  carries  with  it  an  acknowl- 
edgment on  his  part  of  the  fact  of  desertion ;  but 
does  not  apply  to  a  soldier  who,  after  trial  and 
conviction,  has  been  ordered  to  duty  after  the 
sentence  has  been  expressly  disapproved  by 
the  proper  reviewing  officer.  (26  Op.  Atty. 
Gen.,  239;  see  note  to  art.  53,  A.  G.  N.,  as  to 


54641°— 22- 


-63 


987 


Sec.  1624,  Art.  9. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


effect  of  disapproval;  note  to  Constitution,  Art. 
I,  sec.  9,  cl.  3,  as  to  bills  of  attainder;  and  notes 
to  sees.  1418  and  1608,  R.  S.,  as  to  detention  of 
men  after  expiration  of  enlistment.") 

In  the  case  of  a  naval  deserter,  in  determin- 
ing when  the  term  for  which  he  enlisted  ends, 
tlie  period  of  desertion  must  be  deducted  from 
the  contract  period  of  enlistment,  and  the 
latter  accordingly  extended  until  the  enlisted 
man  has  fully  served  the  term  for  which  he 
contracted.  His  contract  is  to  serve  for  a 
certain  period;  tliis  contract  can  not  be  per- 
formed by  desertion;  nor  can  the  status  and 
obligation  created  thereby  be  dissolved  at  the 
will  of  the  enlisted  man.  The  obligation  can 
only  be  ended  by  complete  performance. 
(Op.  Atty.  Gen.,  Feb.  27,  1922,  file  26251- 
26615:  8;  see  notes  to  arts.  61  and  62,  A.  G.  N.; 
and  to  sec.  1418,  R.  S.,  under  "Detention  of 
enlisted  men  after  expiration  of  enlistment.") 

Effect  of  acquittal;  desertion. — An  ac- 
quittal by  a  courl-martial  of  the  charge  of  de- 
sertion operates  as  an  acquittal  of  any  lesser 
offense  included  within  that  charge;  and  as 
desertion  includes  the  lesser  offense  of  absence 
\vithout  leave,  acquittal  thereof  is  also  an  ac- 
quittal of. the  latter  offense.  (13  Op.  Atty. 
Gen.,  459.) 

Effect  of  disapproval;  desertion. — Where 
the  sentence  of  a  court-martial  which  found  a 
soldier  guilty  upon  his  plea  of  desertion  was  dis- 
approved by  the  proper  reviewing  officer,  being 
deemed  inadequate,  and  the  soldier  ordered  at 
his  own  expense  to  join  his  regiment,  held  that 
such  disapproval  operated  as  an  acquittal  of 
the  charge;  and  as  the  term  of  enUstment  had 
expired,  there  was  no  warrant  for  ordering  said 
soldier  to  further  duty;  nor  can  he  be  again 
tried  for  that  offense;  he  may  plead  the  former 
proceedings  as  an  acquittal  in  bar  of  a  second 
trial.  (26  Op.  Atty.  Gen.,  239,  distinguishing 
12  Comp.  Dec,  328,  as  to  forfeiture  of  pay  by 
deserter  in  such  a  case;  see  note  to  art.  53,  A. 
G.N.) 


Enticing  or  assisting  others  to  desert. — ■ 
Under  the  act  of  Congress  of  1855,  section  11  ( 10 
Stat.,  628),  making  the  enticing  of  a  seaman 
who  has  enlisted  to  desert,  an  offense,  held  that 
a  seaman  who  has  passed  the  examination  at 
the  naval  rendezvous  merely,  and  has  not  been 
examined  and  passed  on  the  receiving  ship,  is 
not  enUsted,  and  a  verdict  of  acquittal  on  the 
charge  was  proper.  (U.  S.  v.  Thompson,  28 
Fed.  Cas.  No.  16,491;  see  also  notes  to  sees.  1418 
and  1608,  R.  S.,  as  to  when  enlistment  is 
complete.) 

Section  5455,  Revised  Statutes  (now  sec.  42, 
Criminal  Code,  Mar.  4,  1909,  35  Stat.,  1097), 
merely  provides  for  the  punishment  of  civilians 
not  su]:>ject  to  the  articles  of  war  who  are  acces- 
sories to  the  crime  of  desertion  by  a  soldier,  or 
who  do  any  of  the  acts  specified  tending  to 
promote  his  commission  of  that  crime.  It  has 
no  application  to  the  crime  of  the  soldier  him- 
self.    (Kurtz  V.  Moftit,  115  U.  S-,  487,  502. ) 

An  attorney  employed  by  the  father  of  a 
soldier,  16  years  old,  who  had  enlisted  ■without 
his  father's  consent,  to  obtain  his  release  on 
the  ground  of  nonage,  and  who  ad\'ised  the 
soldier,  then  a  deserter,  to  remain  away  from 
the  authorities  until  notified,  held  not  to  have 
"harbored,  concealed,  or  assisted"  the  de- 
serter, within  section  42  of  the  Criminal  Code 
(above  cited  i,  which  requires,  to  constitute 
either  of  the  offenses,  some  positive  physical 
act,  done  with  knowledge  and  intent  to  aid  in 
the  wrongful  purpose  of  the  deserter.  (Firpo 
V.  U.  S.,  261  Fed.  Rep.,  850.) 

To  "conceal,"  as  used  in  section  42  of  the 
Criminal  Code  (above  cited),  pro\'icUng  for 
punishment  of  anyone  who  shall  harbor,  con- 
ceal, protect,  or  "assist  any  soldier  who  has 
deserted  from  service,  means  to  hide,  secrete, 
or  keep  out  of  sight.  (Firpo  v.  U.  S.,  261 
Fed.  Rep.,  850.) 

To  "harbor,"  as  tised  in  section  42  of  the 
Criminal  Code  (above  cited),  means  to  lodge, 
to  care  for,  after  secreting  the  deseiter.  (Firpo 
i>.  U.  S.,  261  Fed.  Rep.,  850.) 


Art.  9.  [Reduction  of  officer  to  enlisted  rating-.]  Any  officer  who  absents 
himseK  from  his  command  without  leave,  may,  by  the  sentence  of  a  court- 
martial,  be  reduced  to  the  rating  of  an  ordinary  seaman. —  (16  May,  1864,  c.  86, 
s.  2,  V.  13,  p.  75.) 


Punishment  not  authorized  for  other 
offenses. — The  only  pro\'ision  of  law  author- 
izing the  reduction  of  an  officer  to  an  enlisted 
rating  is  found  in  article  9,  A.  G.  N.,  and  it 
authorizes  such  punishment  only  in  the  case 
of  an  officer  "who  absents  himself  from  his 
command  without  leave."  Held,  that  such 
punishment  is  limited  to  the  particular  offense 
specified  by  this  article,  and  can  not  be  ad- 
judged by  a  general  court-martial  for  offenses 
under  article  8,  A.  G.  N.  (C.  M.  O.  34-1918, 
citing  precedents;  see  also  C.  M.  O.  73-1918, 
31-1919,  and  279-1919.) 

President's  approval  of  sentence. — It  is 
deemed  ad\isable,  as  a  matter  of  policy,  al- 
though not  specifically  required  by  statute, 
to  submit  to  the  President  for  confirmation  the 
sentence  of  a  general  court-martial  reducing 
a  wan-ant  officer  to  the  rating  of  orcUnary  sea- 
man, inasmuch  as  such  sentence  deprives  the 


accused  of  his  position  as  a  warrant  officer  in 
the  Navy.  (Naval  Dig.,  1916,  p.  517;  C.  M.  0. 
11-1916;  C.  M.  0. 185-1919;  see  art.  53,  A.  G.  N.) 

Rating  of  ordinary  seaman  changed.  By 
act  of  August  29,  1916  (39  Stat.,  575),  the  rating 
of  '  'ordinary  seaman  "  was  changed  to  '  'seaman, 
second  class. ' '  This  change  has  been  construed 
as  authorizing  the  reduction  of  officers  to  the 
rating  of  seaman,  second  class,  for  the  offense 
specified  in  this  article.  (See,  e.  g.,  C.  M.  O. 
185-1919.) 

Reduction  of  ofl&cer  to  another  ofl3.ce.— 
The  sentence  of  a  court-martial  reducing  an 
officer  to  a  lower  gi-ade  and  rank  was  disap- 
proved by  the  President  because  it  could  not 
be  carried  into  effect  by  the  Executive  alone, 
but  would  require  a  nomination  by  the  Presi- 
dent and  confirmation  by  the  Senate,  and 
then  onlv  in  the  case  of  an  existing  ^•acancy. 
(See  Swaim  v.  U.  S.,  165  U.  S.,  553,  563.) 


988 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  13. 


Art.  10.  [Desertion  by  resignation.]  Any  commissioned  officer  of  the 
Navy  or  Marine  Corps  who,  having  tendered  his  resignation,  quits  his  post  or 
proper  duties  without  leave,  and  with  intent  to  remain  permanently  absent 
therefrom,  prior  to  due  notice  of  the  acceptance  of  such  resignation,  shall  be 
deemed  and  punished  as  a  deserter. — (5  Aug.,  1861,  c.  54,  s.  2,  v.  12,  pp.  316, 
317.) 


Necessity  of  acceptance. — "The  resigna- 
tion of  an  officer  of  the  Navy  is  not  effective 
until  it  has  been  duly  accepted  by  the  Presi- 
dent, who  possesses  the  power  of  compelling 
the  officer  to  remain  in  the  service  by  declining 
to  accept  such  resignation."  (File  26505-21 
and  28,  citing  Edwards  v.  U.  S.,  103  U.  S.,  471; 
file  26262-2146.) 

Implied  resignation.— "If  any  officer  of 
the  Navy  accepts  or  holds  an  appointment  in 
the  diplomatic  or  consular  service  of  the  Gov- 
ernment, he  shall  be  considered  as  ha\dng 
resigned  his  place  in  the  Navv,  and  it  shall  be 
filled  as  a  vacancy."     (Sec.  1440,  R.  S.) 

If  an  officer  is  illegally  dismissed  from  the 
8er\Tce,  it  becomes  his  duty  at  once  or  within 
a  reasonable  time  to  appeal  to  the  highest 
authority  for  revocation,  modification,  or 
correction  of  the  illegal  order.  If  he  obeys 
and  submits  for  an  unreasonable  length  of  time, 
he  must  be  held  to  have  abandoned  all  title 
and  claim  to  the  office  and  its  emolimients,  and 
to  have  waived  his  right  to  both.  And  it  is 
immaterial  that  he  may  have  submitted  to  the 
order  because  he  was  ignorant  of  the  law. 
(Ide  V.  U.  S.,  25  Ct.  Cls.,  401;  affirmed  on  other 
grounds,  150  U.  S.,  517.  See  also  Armstrong 
r.  IT.  S.,  26  Ct.  Cls.,  387.) 

The  principle  that  an  officer  who  acquiesces 
in  his  dismissal  from  the  service  for  a  long  period 
of  time  has  abandoned  said  office,  which  aban- 
donment is  equivalent  to  a  resignation,  does 
not  apply  to  an  officer  on  the  retired  list,  who 
who  owed  no  service  to  the  Government, 
(Fletcher  v.  U.  S.,  26  Ct.  Cls.,  541,  563.) 

The  doctrine  of  resignation  by  implication, 
applicable  to  civil  officers,  is  not  to  be  favored 
in  the  Army  and  Navy,  where  forms  and  reg- 
ulations are  prescribed  and  must  be  enforced. 


A  resignation  by  a  naval  officer  is  inoperative 
until  accepted  by  the  proper  authority,  and 
even  if  the  acceptance  of  another  office  be  held 
equivalent  to  the  tender  of  his  resignation  as 
an  officer  of  the  Navy,  he  still  remains  an  in- 
cumbent of  the  naval  office  until  such  implied 
resignation  is  accepted.  (18  Op.  Atty.  Gen., 
395.) 

A  cadet  engineer  who  graduated  from  the 
Naval  Academy  and  was  honorably  discharged 
from  the  service  under  an  erroneous  inter- 
pretation of  the  law  by  the  Navy  Department, 
and  who  thereupon  accepted  another  and 
incompatible  office  under  the  United  States, 
is  entitled  to  be  recognized  as  having  continued 
in  the  service,  notwithstanding  his  discharge, 
which  was  null  and  void;  and  under  the  cir- 
cumstances which  existed,  and  which  were 
owing  to  the  fault  of  the  Government  and  not 
to  fault  of  his,  acceptance  by  him  of  an  incom- 
patible office  was  not  tantamount  to  an  im- 
plied resignation  of  his  office  in  the  Navy. 
(18  Op.  Atty.  Gen.,  395;  see  also  Winchell  v. 
U.  S.,  28  Ct.  Cls.,  30;  and  see  art.  36,  A.  G.  N.) 

Certain  cadet  engineers  who  had  graduated 
from  the  Naval  Academy  were  honorably  dis- 
charged under  an  erroneous  interpretation  by 
the  Navy  Department  of  an  act  approved 
August  5,  1882  (22  Stat.,  285).  Such  discharges 
were  held  by  the  courts  to  be  void  (see  Perkins 
V.  U.  S.,  20  Ct.  Cls.,  438;  116  U.  S.,  483).  Hdd, 
that  the  fact  such  officers  may  have  accepted 
pay  on  discharge  as  provided  by  said  act  of 
1882,  without  protest,  or  in  some  cases  protested 
against  their  discharge  and  subsequently  _  ac- 
cepted pay,  is  not  tantamount  to  a  resignation. 
Protests  and  acceptance  of  pay  could  not  change 
the  legal  force  of  the  statute,  either  for  or 
against  them.     (18  Op.  Atty.  Gen.,  373.) 


Art.  11.  [Dealing  in  supplies.]  No  person  in  the  naval  service  shall  pro- 
cure stores  or  other  articles  or  supplies  for,  and  dispose  thereof  to,  the  officers 
or  enlisted  men  on  vessels  of  the  Navy,  or  at  navy  yards  or  naval  stations,  for 
his  own  account  or  benefit. —  (26  Aug.,  1842,  c.  206,  s.  1,  v.  5,  p.  535.) 

Art.  12.  [Importing  dutiable  goods.]  No  person  connected  with  the  Navy 
shall,  under  any  pretense,  import  in  a  public  vessel  any  article  which  is  liable 
to  the  payment  of  duty.— (30  July,  1846,  c.  74,  s.  10,  v.  9,  p.  44.) 

Art.  13.  [Distilled  spirits  only  as  medical  stores.]  Distilled  spirits  shall  be 
admitted  on  board  of  vessels  of  war  only  upon  the  order  and  under  the  control 
of  the  medical  officers  of  such  vessels,  and  to  be  used  only  for  medicol  purposes. — 
(14  July,  1862,  c.  164,  s.  4,  v.  12,  p.  565.) 


The  possession  of  alcoholic  liquors  by  any 
person  at  any  place  under  naval  jurisdic- 
tion designated  by  the  President,  except  as 
permitted  by  regulations  for  medicinal 
pm-poses,  and  the  sale  of  such  liquors  to 
any  person  in  the  naval  forces  while  in 


uniform,  were  prohibited  by  act  of  May  18, 
1917,  section  12  (40  Stat.,  82),  as  amended 
by  act  of  October  6,  1917  (40  Stat.,  393). 
See  also  national  prohibition  act  of  Oc- 
tober 28,  1919,  section  7  (41  Stat.,  307). 


989 


Sec.  1624, Art.  14.  Pt.  2.  REVISED  STATUTES.  The  Navy. 

Art.  14.  [Fraud  against  United  States;  embezzlement;  etc.]  Fine  and  im- 
prisonment, or  such  other  punishment  as  a  court-martial  may  adjudge,  shall 
be  inflicted  upon  any  person  in  the  naval  service  of  the  United  States. — (2  Mar., 
1863,  c.  67,  s.  1,  V  12,  p.  696.) 

[Pkesenting  false  claims.]  Who  presents  or  causes  to  be  presented  to 
any  person  in  the  civil,  military,  or  naval  service  thereof,  for  approval  or  pay- 
ment, any  claim  against  the  United  States  or  any  officer  thereof,  knowing  such 
claim  to  be  false  or  fraudulent;  or 

[Agreement  to  obtain  payment  of  false  claim.]  Who  enters  into  any 
agreement  or  conspiracy  to  defraud  the  United  States  by  obtaining,  or  aiding 
others  to  obtain,  the  allowance  or  payment  of  any  false  or  fraudulent  claim;  or 

[False  papers.]  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to 
obtain,  the  approval,  allowance,  or  payment  of  any  claim  against  the  United 
States  or  against  any  officer  thereof,  makes  or  uses,  or  procures  or  advises  the 
making  or  use  of,  any  writing,  or  other  paper,  knowing  the  same  to  contain 
any  false  or  fraudulent  statement;  or 

[Perjury.]  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain, 
the  approval,  allowance,  or  payment  of  any  claim  against  the  United  States 
or  any  officer  thereof,  makes,  or  procures  or  advises  the  making  of,  any  oath 
to  any  fact  or  to  any  writing  or  other  paper,  knowing  such  oath  to  be  false;  or 

[Forgery.]  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain, 
the  approval,  allowance,  or  payment  of  any  claim  against  the  United  States 
or  any  officer  thereof,  forges  or  counterfeits,  or  procures  or  advises  the  forging 
or  counterfeiting  of,  any  signature  upon  any  writing  or  other  paper,  or  uses, 
or  procures  or  advises  the  use  of,  any  such  signature,  knowing  the  same  to  be 
forged  or  counterfeited;  or 

[Delivering  less  property  than  receipt  calls  for.]  Who,  having 
charge,  possession,  custody,  or  control  of  any  money  or  other  property  of  the 
United  States,  furnished  or  intended  for  the  naval  service  thereof,  knowingly 
delivers,  or  causes  to  be  delivered,  to  any  person  having  authority  to  receive 
the  same,  any  amount  thereof  less  than  that  for  which  he  receives  a  certificate 
or  receipt;  or 

[Giving  receipts  without  knowing  truth  of.]  Who,  being  authorized 
to  make  or  deliver  any  paper  certifying  the  receipt  of  any  money  or  other 
property  of  the  United  States,  furnished  or  intended  for  the  naval  service 
thereof,  makes,  or  delivers  to  any  person,  such  writing,  without  having  full 
knowledge  of  the  truth  of  the  statements  therein  contained,  and  with  intent 
to  defraud  the  United  States;  or 

[Stealing,  wrongfui.ly  selling,  &c.]  Who  steals,  embezzles,  knowingly 
and  willfully  misappropriates,  applies  to  his  own  use  or  benefit,  or  wrongfully 
and  knowingly  sells  or  disposes  of  any  ordnance,  arms,  equipments,  ammuni- 
tion, clothing,  subsistence  stores,  money  or  other  property  of  the  United  States, 
furnished  or  intended  for  the  military  or  naval  service  thereof;  or 

[Buying  public  military  property.]  Who  knowingly  purchases,  or 
receives  in  pledge  for  any  obligation  or  indebtedness,  from  any  other  person 
who  is  a  part  of  or  employed  in  said  service,  any  ordnance,  arms,  equipments, 
ammunition,  clothing,  subsistence  stores,  or  other  property  of  the  United  States, 
such  other  person  not  having  lawful  right  to  sell  or  pledge  the  same;  or 

990 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  14. 


[Any  other  fraud  against  the  United  States.]  Who  executes,  at- 
tempts, or  countenances  any  other  fraud  against  the  United  States. — (17  July, 
1862,  c.  204,  art.  7,  v.  12,  p.  602.) 

[Trial  of  offender  after  discharge.]  And  if  any  person,  being  guilty 
of  any  of  the  offenses  described  in  this  article  while  in  the  naval  service,  receives 
his  discharge,  or  is  dismissed  from  the  service,  he  shall  continue  to  be  liable  to  be 
arrested  and  held  for  trial  and  sentence  by  a  court-martial,  in  the  same  manner 
and  to  the  same  extent  as  if  he  had  not  received  such  discharge  nor  been  dis- 
missed.—(2  Mar.,  1863,  c.  67,  s.  2,  v.  12,  p.  697.) 


See  sections  3617-3652,  Revised  Statutes,  as  to 
duties  of  disbursing  officers;  and  see  Crim- 
inal Code,  act  of  March  4,  1909  (35  Stat., 
1094,  et  seq.),  sections  28-48,  as  to  frauds, 
etc. ,  upon  the  United  States,  and  sections 
36,  47,  86-97,  as  to  embezzlement,  etc. 
Article  14  not  repealed  by  later  legisla- 
tion.—Section    5438,    Revised    Statutes,    pro- 
vided for  the  punishment  by  civil  coiu-ts  of 
"every  person"   who  committed  offenses  in- 
cluded by  article  14,  A.  G.  N,     Said  section 
5438  was  embodied  in  the  Criminal  Code  (act 
Mar.    4,    1909,    35   Stat.,    1095)   as  section   35 
thereof.     Said    section    35    of    the    Criminal 
Code  was  reenacted,  with  amendments,  by  act 
of  October  23,  1918  (40  Stat.,  1015),  applj-ing 
to  "whoever"  shall  do  the  acts  therein  de- 
scribed.    Held,  that  the  amendment  of  section 
35  by  said  act  of  October  23,  1918,  did  not  in 
any  manner  refer  to  or  repeal  the  article  of 
war  (corresponding  to  art.  14,  A.  G.  N.),  and 
does  not  deprive  courts-martial  of  their  juris- 
diction of  persons  in  the  military  and  naval 
service.     (U.  S.  v.  Barry,  260  Fed.  Rep.  291.) 

Discretionary  punishment. — See  note  to 
article  63,  A.  G.  N.,  as  to  limitations  of  punish- 
ment in  time  of  peace;  and  note  to  article  8,  as 
to  discretionary  punishments.  See  also  note 
to  article  22,  A.  G.  N.,  as  to  punishment  for 
embezzlement. 

Offenses  under  the  article  of  war  (correspond- 
ing to  this  article)  may  be  of  greater  or  less 
gra\aty,  and  the  necessity  for  the  exercise  of 
discretion  in  the  matter  of  punishment  is  ob- 
vious. Conviction  in  some  c^ses  might  deserve 
the  pimishment  of  fine,  or  of  imprisonment,  or 
of  both,  as  well  as  of  dismissal  in  addition  to 
either  or  both ;  for  others,  lesser  penalties  might 
suffice.  The  word  "or"  was  properly  used  to 
give  play  to  discretion.  In  any  event,  fine 
might  be  inflicted  for  the  commission  of  one  of 
the  offenses  enumerated  in  this  article,  and 
imprisonment  for  the  commission  of  another; 
and  dismissal  under  another  charge  of  conduct 
unbecoming  an  officer  and  a  gentleman.  (Car- 
ter V.  McClaughrj^  183  U.  S.,  365,  392;  the  ar- 
ticle of  war  under  consideration  in  this  case 
read,  "fine  or  imprisonment,  or  by  such  other 
punishment  as  a  court-martial  may  adjudge.") 
The  word  "imprisonment"  as  used  in  the 
article  of  war  was  not  employed  in  a  technical 
sense  to  signify  imprisonment  at  a  military  post 
without  hard  labor,  but  has  a  broader  significa- 
tion and  empowers  an  Aiiny  court-martial  to 
sentence  a  person  in  the  military  service  to 
imprisonment  at  hard  labor,  or  to  a  peniten- 
tiary where  hard  labor  is  a  part  of  the  discipline. 


where  the  offense  of  which  he  is  convicted  is 
one  for  which  the  civil  tribunals  could  impose  a 
like  sentence.  (In  re  Langan,  123  Fed.  Rep., 
132;  see  note  to  art.  7,  A.  G.  N.  The  articles  of 
war  expressly  prohibited  confinement  in  a  pen- 
itentiary, unless  the  offense  was  one  so  punish- 
able by  the  civil  courts. ) 

It  is  not  probable  that  Congi-ess  intended  to 
prescribe  a  different  penalty  for  the  theft  or 
embezzlement  of  Government  property,  de- 
pending upon  the  tribunal  before  whom  the 
accused  happened  to  be  tried.  No  reason  is 
perceived  why  the  sentence  in  one  case  should 
be  less  severe  than  in  the  other.  The  offense 
of  stealing  Government  property  or  embezzling 
is  quite  as  heinous  when  committed  by  a  per- 
son in  the  military  service  as  when  committed 
by  a  civilian.  It  is  not  believed,  therefore, 
that  the  omission  of  the  word  "hard  labor"  in 
the  article  of  war  is  any  evidence  of  a  design  not 
to  subject  persons  in  the  military  service  to 
imprisonment  at  hard  labor,  provided  that  they 
commit  offenses  which  would  subject  them  to 
such  punishment  if  they  happened  to  be  tried 
before  a  civil  tribunal.  (In  re  Langan,  123 
Fed.  Rep.,  132.) 

A  person  sentenced  by  Army  court-martial 
to  fine  and  imprisoimient  for  presenting  fraud- 
ulent claims  to  the  United  States  may  be  pun- 
ished by  dismissal  from  the  service  for  the  same 
offense  as  conduct  unbecoming  an  officer  and  a 
gentleman.  (Rose  v.  Roberts,  99  Fed.  Rep., 
948.     See  note  to  art.  22,  A.  G.  N.) 

Under  the  article  of  war,  pro\iding  that  a 
person  in  the  military  service  who  shall  be 
guilty  of  certain  offenses  shall  on  conviction 
thereof  be  punished  by  "fine  or  imprisonment, 
or  by  such  other  punishment  as  a  court-martial 
may  adjudge,"  a  person  convicted  of  two  of- 
fenses named  in  said  article  may  be  punished 
by  fine  as  to  one,  and  by  imprisonment  as  to 
the  other.  (Rose  r.  Roberts,  99  Fed.  Rep., 
948.) 

Conspiring  to  defraud  the  United  States,  and 
causing  false  and  fraudulent  claims  to  be  made 
against  the  United  States,  are  separate  and  dis- 
tinct offenses*  and  the  fact  that  the  charges  re- 
lated to  and  grew  out  of  the  same  transaction 
made  no  difference.  Accordingly,  the  military 
court  was  empowered  to  punish  the  accused,  as 
to  one,  by  fine,  and  as  to  the  other,  by  imprison- 
ment, and  dismissal  might  have  been  added  to 
fine  and  imprisonment  as  part  of  the  punish- 
ment for  either  or  both  of  the  offenses.  The 
accused  was  not  twice  put  in  jeopardy  because 
the  sentence  was  greater  than  the  court-martial 
had  jurisdiction  to  inflict  on  conviction  of  any 


991 


Sec.  1624,  Art.  14. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


one  of  the  offenses  charged,  taken  singly,  the 
offenses  not  V)eing  the  same  within  the  meaning 
of  the  constitutional  pro\-ision.  (Carter  v. 
McClaughry,  1S;5  l'.  S.,  3(55.) 

Jui-isdiction  of  ci\dl  authorities. — A  pay- 
master's clerk  in  the  Navy  is  a  ^'person  in  the 
naval  forces  of  the  United  States"'  wdthin  the 
meaning  of  the  act  of  March  2,  1863  (12  Stat., 
G9G,  now  em])odied  in  art.  14,  A.  G.  N.),  and  if 
he  embezzles  funds  of  the  United  States  he  is 
not  liable  to  the  penalty  provided  in  the  third 
section  of  that  act  (now  sec.  3490,  R.  S.,  relat- 
ing to  such  0 flenses  by  persons  not  in  the  mili- 
tary or  naval  forces),  but  is  liable  in  a  civil  suit 
against  him  by  the  United  States  for  the  amount 
embezzled.  (U.  S.  v.  Bogart,  24  Fed.  Cas.,  No. 
14,616.) 

A  district  court  of  the  United  States  has 
jurisdiction  to  try  a  person  charged  with  having 
forged  an  obligation  of  the  United  States  (a 
certificate  of  deposit  issued  by  an  Army  pay- 
master to  a  soldier),  mth  intent  to  defraud, 
which  is  made  an  offense  by  section  5414, 
Revised  Statutes  (now  sec.  148,  Criminal  Code, 
act  j\Iar.  4,  1909,  35  Stat.,  1115),  although  he 
was  at  the  time  an  officer  of  the  Army  and  the 
alleged  offense  was  committed  at  a  military 
post  and  ■\\'ith  intent  to  defraud  the  United 
States  and  an  enlisted  soldier,  where  the  ac- 
cused has  since  been  discharged  from  the 
Army  without  any  action  against  him  having 
been  taken  by  the  military  authorities,  there 
being  no  pro\asion,  either  constitutional  or 
statutory,  conferring  exclusive  jurisdiction  on 
courts-martial  to  punish  such  offense.  (Neall 
t;.  U.  S.,  118  Fed.  Rep.,  699.) 

The  civil  courts  of  the  United  States  have 
concun-ent  jurisdiction  with  courts-martial  to 
try  an  officer  of  the  Army  for  conspiracy  to 
defraud  the  United  States.  (U.  S.  v.  Hirsch, 
254  Fed.  Rep.,  109.) 

The  60th  (now  90th)  article  of  war  (corre- 
sponding to  art.  14,  A.  G.  N.)  dealt  solely  with 
those  in  the  military  8er\ace;  and  section 
5438,  ReAdsed  Statutes  (now  sec.  35,  Criminal 
Code,  Mar.  4,  1909,  35  Stat.,  1095,  as  amended 
Oct.  23,  1918,  40  Stat.,  1015),  dealt  with  any 
person,  whether  in  civil  life  or  in  the  military 
or  naval  service.  Where  an  offense  of  this 
character  was  committed  by  both  a  civilian 
and  a  member  of  the  military  or  naval  service 
it  might  be  highly  important  to  try  both  ac- 
cused before  the  same  tribunal  at  the  same  time ; 
hence  Congi-ess  provided  that  members  of  the 
military  and  naval  forces  could  be  tried  before 
ci\'il  courts  of  competent,  jurisdiction.  (U.  S. 
V.  Barry,  260  Fed.  Rep.,  291.) 

An  officer  of  the  Army  is  subject  to  trial  by 
the  civil  courts  of  the  United  States  for  viola- 
tion of  section  5438,  Revised  Statutes  (now -sec. 
35,  Criminal  Code,  above  cited).  (Franklin  v. 
TJ.  S.,  216  U.  S.,  .559.) 

Jurisdiction  after  discharge  from,  the 
service. — See  cases  noted  above,  under  pre- 
amljle  to  section  1624,  as  to  jurisdiction  over 
persons  discharged  from  the  Navy;  see  also 
note  to  article  61,  A.  G.  N. 

An  offense  committed  by  a  party  while 
actually  in  the  naval  service  is  a  "case  arising 
in  the  naval  forces, "  within  the  meaning  of 
this  term  as  used  in  the  fifth  amendment  to 
the  Constitution;  and  Congress  has  power  to 


authorize  the  trial  for  such  an  offense  by  a  court- 
martial  upon  proceedings  commenced  after  the 
connection  with  the  service  of  the  party  charged 
has  been  severed.  (In  re  Bogart,  3  Fed.  Cas., 
No.  1,596.) 

Under  this  article,  a  party  charged  with 
embezzlement  as  therein  provided,  committed 
while  employed  in  the  naval  service,  and 
afterwards  dismissed  or  discharged,  is  liable 
to  be  arrested  and  tried  by  a  court-martial  in 
the  same  manner  as  if  he  had  not  been  dismissed 
or  discharged.  (In  re  Bogart,  3  Fed.  Cas.  No. 
1,596.) 

Where  the  charges  against  an  enrolled  mem- 
ber of  the  Naval  Reserve  Force  were  laid  under 
article  22,  his  case  does  not  come  within  the 
clause  of  article  14  pro\'iding  for  the  trial  of 
offenses  after  discharge  of  the  accused  from 
the  service,  not\vithstanding  that  the  specifica- 
tions of  the  charge  against  him  could  be  con- 
strued as  working  a  fraud  upon  the  United 
States  in  violation  of  article  14.  (U.  S.  v. 
MacDonald,  265  Fed.  Rep.,  695.) 

Fraud  against  the  United  States. — • 
Where  an  enrolled  member  of  the  Naval  Re- 
serve Force  attempted  by  the  payment  of 
money  to  bribe  a  chief  boatswain's  mate  in  the 
Navy  to  obtain  illegally  and  unlawfully  the 
transfer  of  a  seaman  fi'om  sea  duty  to  shore  duty, 
such  conduct  could  be  construed  as  working  a 
fraud  upon  the  United  States  under  this  article. 
(U.  S.  i;.  MacDonald,  265  Fed.  Rep.,  695,  698.) 

A  conspiracy  to  defraud  the  United  States 
does  not  necessarily  involve  a  direct  pecuniary 
loss  to  the  United  States,  but  the  statute  in- 
cludes any  conspiracy  to  impair,  obstruct,  or 
defeat  the  lawful  function  of  any  department 
of  the  Government.  (Woog  v.  U.  S.,  48  Ct. 
Cls.,  80,  89.) 

The  authorities  will  show  that  it  is  not  essen- 
tial to  charge  or  prove  an  actual  financial  or 
property  loss  to  the  Government  to  make  a  case 
under  the  statute  relating  to  conspiracies  to 
defraud  the  United  States.  (Woog  v.  U.  S., 
48  Ct.  Cls.,  80,  89,  citing  Hyde  v.  Shine,  199 
U.  S.,  81;  U.  S.  V.  Keitel,  211  U.  S.,  394; 
Curley  v.  U.  S.,  130  Fed.  Rep.,  1;  McGregor  v. 
U.  S.,  134  Fed.  Rep.,  195;  Benson  v.  Henkel, 
198  U.  S.,  11;  U.  S.  V.  Plyler,  222  U.  S.,  15.) 

Property  rights  of  the  Government  are  by  no 
means  all  of  its  rights.  Financial  losses  to  the 
Government  are  but  incidents  to  the  discharge 
of  those  functions  for  which  the  Government 
was  established.  The  proper  discharge  of  these 
functions  is  of  the  utmost  concern,  regardless  of 
the  matter  of  financial  loss  to  the  Treasury  of 
the  United  States.  (Woog  v.  U.  S.,  48  Ct.  Cls., 
80,  89.) 

Evidence  in  conspiracy  cases. — -In  con- 
spiracy cases,  proof  of  the  acts  and  declarations 
of  alleged  conspirators  is  not  properly  admis- 
sible when  community  of  intent  and  design 
has  not  been  established;  but  if  received,  the 
error  may  be  cured  by  the  subsequent  introduc- 
tion of  proof  of  the  conspiracy  existing  at  the 
time  the  alleged  declarations  were  made. 
(22  Op.  Atty.  Gen.,  589;  see  note  to  art.  45,  A. 
G.  N.,  as  to  evidence  before  courts-martial.) 

Testimony  tending  to  show  such  a  relation 
or  understanding  between  alleged  conspirators 
as  would  be  indicative  of  a  purpose  to  defraud 
the   Government  bv  means   of  contracts   for 


992 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  14. 


public  works  to  be  given  out  and  carried  on 
under  charge  of  the  accused  would  be  admis- 
sible before  a  court-martial  even  though  it 
related  to  matters  antedating  the  time  of  the 
particular  conspiracy  charged.  (22  Op.  Atty. 
Gen.,  589.) 

Fraud  not  against  the  United  States. — 
See  note  to  article  8,  A.  G.  N. 

Embezzlement. — See  note  to  article  22, 
A.  G.  N.,  as  to  embezzlement  of  property  not 
furnished  or  intended  for  the  naval  service  of 
the  United  States;  and  see  cases  noted  below, 
under  this  article. 

The  word  "embezzlement"  is  not  defined 
by  article  14,  A.  G.  N.,  and  consequently  it  is 
necessary  to  look  to  the  offense  as  defined  in 
the  penal  statutes  relating  to  United  States 
officials  who  are  charged  wdth  the  duty  of 
holding  and  disbursing  funds  belonging  to  the 
Government,  in  order  to  determine  of  what 
element  the  act  consists.  (28  Op.  Atty.  Gen., 
286,  citing  sees.  86-92,  Criminal  Code,  Mar.  4, 
1909,  35  Stat.,  1105.1 

Where  a  common-law  offense  is  named  in  an 
act  of  Congi'ess  \vithout  defining  it,  undoubtedly 
the  courts  mil  construe  the  statutes  as  applying 
to  the  offense  as  defined  at  common  law;  but 
embezzlement  is  not  a  common-law  offense. 
No  resort  can  be  had  to  the  definitions  of  em- 
bezzlement given  in  the  laws  of  the  several 
States,  as  there  is  no  uniformity  in  the  State 
statutes  upon  the  subject.  If  embezzlement  as 
defined  in  the  Revised  Statutes  and  now  in 
the  Criminal  Code  is  not  the  offense  referred  to 
in  article  14,  A.  G.  N.,  what  is  the  precise 
nature  of  the  offense  therein  specified?  (29 
Op.Atty.  Gen.,  563,  569.) 

Where  an  assistant  pajinaster  in  the  Navy 
was  charged  with  embezzlement  in  that  he 
"did  fail  to  safely  keep  and  account  for  the 
sum  "  specified,  hdd  that  this  was  sufficient  to 
sustain  the  charge,  although  it  was  not  proved 
that  the  money  was  actually  appropriated  by 
the  accused  or  that  he  made  anv  particular 
disposition  of  it.     (28  Op.  Atty.  Gen.,  286.) 

An  assistant  paymaster  in  the  Navy,  charged 
with  the  duty  of  keeping  safely  money  intrusted 
to  his  care,  who  was  furnished  a  safe  with 
combination  locks  on  both  the  outer  and  inner 
doors  for  the  safe-keeping  of  this  money,  and 
who,  after  remo\dng  the  lock  from  the  inner 
door  of  the  safe  and  failing  to  lock  the  outer 
door,  left  the  vessel,  knowing  the  condition  of 
the  safe,  and  as  a  result  a  portion  of  the  money 
was  lost,  is  chargeable  with  negligence  equiva- 
lent to  a  criminal  intent,  and  is  guilty  of  em- 
bezzlement under  the  pro\'isions  of  article  14, 
A.  G.  N.,  and  section  88  of  the  Criminal  Code. 
(28  Op.  Atty.  Gen.,  286.) 

A  general  principle  recognized  by  all  the 
authorities  is  that  there  may  be  such  character 
of  negligence  as  will  take  the  place  of  criminal 
intent.  (28  Op.  Atty.  Gen.,  286,  296;  see  note 
to  art.  43,  A.  G.  N.,  as  to  charges  and  specifi- 
cations.) 

The  authorities  are  in  sharp  conflict  and  the 
question  is  not  one  definitely  settled  by  the 
United  States  courts,  but  there  is  an  apparent 
leaning  in  favor  of  the  position  that  there  must 
be  knowledge  of  the  act  which  constitutes  the 
offense,  and  an  intent  to  commit  such  act, 
although  knowledge  that  the  act  will  constitute 


a  criminal  offense  is  not  necessary,  as  the  want 
of  such  knowledge  would  be  only  ignorance  of 
the  law.     (28  Op.  Atty.  Gen.,  286,  296.) 

Neither  section  87  nor  section  89  of  the  Crimi- 
nal Code  requires  an  intent  to  defi'aud  the 
Government,  but  only  an  intent  to  do  the  thing 
prohibited.     (29  Op.  Atty,  Gen.,  563,  566.) 

The  willful  use  of  Government  funds  by  a 
pay  officer  of  the  Navy  for  the  purpose  of  cashing 
a  certificate  of  deposit  as  an  accommodation 
to  a  personal  friend  constitutes  embezzlement 
under  the  pro\'isions  of  article  14,  A.  G.  N., 
and  sections  87  and  89  of  the  Criminal  Code 
(above  cited).     (29  Op.  Atty.  Gen.,  563,  567.) 

The  overpayment  by  a  pay  officer  of  the  Navy 
to  himself  from  public  funds,  where  the  officer 
is  guilty  of  such  negligence  or  indifference  as 
to  indicate  a  willful  disregard  of  the  duties 
I  imposed  upon  him  by  law  with  respect  to  the 
safe-keeping  of  the  moneys  in  his  charge,  is  in 
violation  of  article  14,  A.  G.  N.,  and  sections 
87  and  89  of  the  Criminal  Code  (above  cited), 
although  there  may  have  been  no  criminal 
intent  involved.     (29  Op.  Atty.  Gen.,  563,  568.) 

The  willful  withdrawing  of  public  funds  by 
a  pay  officer  of  the  Navy  for  his  personal  use 
while  absent  from  his  station  of  duty,  even 
though  there  be  no  intent  on  his  part  to  defraud 
the  United  States  and  the  funds  withdrawn 
are  subsequently  replaced,  is  a  violation  of 
the  provisions  of  article  14,  A.  G.  N.,  and 
sections  87  and  89  of  the  Criminal  Code  (above 
cited),  against  converting  pulilic  funds  to  his 
own  use  except  as  authorized  by  law.  (29  Op. 
Atty.  Gen.,  563,  568.) 

Embezzlement  of  property  not  furnished 
for  naval  service. — See  note  to  article  22, 
A.  G.  N. 

Under  the  gi'ant  of  jurisdiction  to  a  coui-t- 
martial  conferred  by  the  articles  of  war,  pro- 
viding that  any  person  in  the  military  service 
who  misappropriates  any  money  of  the  United 
States  "furnished  or  intended  for  the  military 
service  thereof,"  shall  be  punished,  etc.,  sucn 
a  court  has  no  power  under  that  provision  to 
convict  an  officer  of  the  Army  of  misappropri- 
ating money  appropriated  by  Congress  for  the 
improvement  of  rivers  and  harbors.  (In  re 
Carter,  97  Fed.  Rep.,  496.) 

Most  of  the  enumerated  classes  of  property 
in  the  articles  of  war  are  ob\T-Ously  military 
stores  used  for  military  purposes,  and  on  the 
principle  of  noscitur  a  sociis  all  the  classes 
designated  fall  into  the  same  category;  and 
this  seems  to  be  put  beyond  question  by  the 
words  "furnished  or  intended  for  the  military 
service  thereof."  The  military  service  as  used 
in  this  connection  means  the  land  forces  or  the 
Army.  The  fact  that  money  appropriated  for 
river  and  harbor  improvements  is  disbursed 
by  an  officer  of  the  Army  and  the  work  super- 
\ased  by  the  engineer  force  in  the  service  of 
the  Government  does  not  make  the  moneys  so 
appropriated  moneys  "furnished  or  intended 
for  the  military  service"  as  the  words  are  used 
in  the  articles  of  war  concerning  embezzlement. 
(Carter  v.  McClaughry,  183  tl.  S.,  365,  399; 
see  note  to  art.  22,  A.  G.  N.) 

Pvmishment  for  embezzlement. — Sen- 
tence requiring  amount  embezzled  to  be  turned 
over  to  Government  officer  held  legal:  See  note 
to  article  22,  A.  G.  N.,  under  "Embezzlement." 


993 


Sec.  1624,  Art.  19. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


Art.   15.  [List  of  persons  claiming  prize  money.     Repealed.] 


This  article  reads  as  follows: 

"Art.  1").  The  coniniaiuling  ollicer  of  every 
vessel  in  the  Navy  entitled  to  or  claiming  an 
award  of  prize-money  shall,  as  soon  as  it  may 
be  practicable  after  the  capture,  transmit  to  the 
Navy  Department  a  complete  list  of  the  officers 
and  men  of  his  vessel  entitled  to  share,  stating 
therein  the  quality  of  each  person  rating;  and 
every  commanding  officer  who  offends  against 
this  article  shall  be  punished  as  a  court-martial 
mav  direct."  [See  §  4615.]— fl7  July,  1862,  c. 
204,  8.  5,  v.  12,  p.  607.) 


It  was  repealed  by  section  13  of  the  Navy 
personnel  act  approved  March  3,  1899  (30  Stat., 
1007),  which  contained  the  following  clause: 

"And  all  provisions  of  law  authorizing  the 
distribution  among  captors  of  the  whole  or  any 
portion  of  the  proceeds  of  vessels,  or  any  prop- 
erty hereafter  captured,  condemned  as  prize, 
or  providing  for  the  pajTuent  of  bounty  for  the 
sinking  or  destruction  of  vessels  of  the  enemy 
hereafter  occurring  in  time  of  \yar,  are  hereby 
repealed." 

See,  generally,  on  the  subject  of  "Prize," 
sections  4613-4652,  Revised  Statutes. 

Art.  16.  [Removing  property  from  prize.]  No  person  in  tlie  Navy  sliall 
tal^e  out  of  a  prize,  or  vessel  seized  as  a  prize,  any  money,  plate,  goods,  or  any 
part  of  lier  equipment,  unless  it  be  for  the  better  preservation  thereof,  or  unless 
such  articles  are  absolutely  needed  for  the  use  of  any  of  the  vessels  or  armed 
forces  of  the  United  States,  before  the  same  are  adjudged  laA^^ful  prize  by  a  com- 
petent court;  but  the  whole,  without  fraud,  concealment,  or  embezzlement,  shall 
be  brought  in,  in  order  that  judgment  may  be  passed  thereon;  and  every  person 
wlio  offends  against  this  article  shall  be  punished  as  a  court-martial  may 
direct.— (17  July,  1862,  c.  204,  s.  7,  v.  12,  p.  607.) 

Art.  17.  [Maltreating  persons  on  prize.]  If  any  person  in  the  Navy  strips 
off  the  clothes  of,  or  pillages,  or  in  any  manner  maltreats,  any  person  taken  on 
board  a  prize,  he  shall  suffer  such  punishment  as  a  court-martial  may  adjudge. — 
(17  July,  1862,  c.  204,  s.  8,  v.  12,  p.  607.     Lively  and  Cargo,  1  Gallis,  314.) 


damages  for  personal  ill  usage. 
15  Fed.  Cas.  No.  8,403.) 


(The  Lively, 


Civil  liability. — If  captors  wantonly  injure 
the  captured  crew,  the  prize  court  will  award 

Art.  18.  [Returning  fugitives  from  service.]  If  any  officer  or  person  in 
tlie  naval  service  employs  any  of  the  forces  under  his  command  for  the  purpose 
of  returning  any  fugitive  from  service  or  labor,  he  shall  be  dismissed  from  the 
service.— (13  IMar.,  1862,  c.  40,  s.  1,  v.  12,  p.  354.) 

Art.  19.  [Enlisting  deserters,  minors,  etc.]  Any  officer  who  knowingly  enlists 
into  the  naval  service  any  person  who  has  deserted  in  time  of  w^ar  from  the 
naval  or  military  service  of  the  United  States,  or  any  insane  or  intoxicated 
person,  or  any  minor  between  the  ages  of  fourteen  and  eighteen  years,  without 
the  consent  of  his  parents  or  guardian,  or  any  minor  under  the  age  of  fourteen 
years,  shall  be  punished  as  a  court-martial  may  direct. 


This  article  was  reenacted  to  read  as  above 
by  act  of  August  22,  1912  (37  Stat.,  356).  As 
originally  enacted  it  read  as  follows: 

"Art.  19.  Any  officer  who  knowingly  enlists 
into  the  naval  service  any  deserter  from  the 
naval  or  military  service  of  the  United  States, 
or  any  insane  or  intoxicated  person,  or  any  mi- 
nor between  the  ages  of  sixteen  and  eighteen 
years,  without  the  consent  of  his  parents  or 
guardian,  or  any  minor  under  the  age  of  sixteen 
years,  shall  be  dishonorably  dismissed  from  the 
service  of  the  United  States."  [See.  §§  1418, 
1419.]— 1'3  Mar.,  1865,  c.  79,  s.  IS,  v.  13,  p.  490.) 

It  had  previously  been  amended  by  act 
of  May  12,  1879  (21  Stat.,  3),  which  reenacted 
said  article,  substituting  the  word  "fifteen  "  for 
the  word  "sixteen"  in  the  two  places  in  which 


the  latter  word  appeared,  and  substituting  the 
words,  "punished  as  a  court-martial  may  di- 
rect," for  the  words,  "dishonoral:)ly  dismissed 
from  the  service  of  the  United  States." 

It  was  further  amended,  by  implication,  by 
the  act  of  February  23,  1881,  section  2  (21  Stat., 
338),  which  changed  the  qualifications  for  en- 
listment in  the  Navy,  as  prescribed  bv  sections 
1418-1420,  Revised  Statutes,  "by  striking  out 
the  word  '  fifteen '  and  inserting  in  its  stead  the 
word  'fourteen.'  " 

Status  of  persons  illegally  enlisted. — -See 
notes  to  sections  761,  1418-1420,  Revised  Stat- 
utes, and  see  note  above,  under  preamble  to 
section  1624,  subheadings,  "Void  enlistment" 
and  "Voidable  enlistment."  See  also  note  to 
article  22,  A.  G.  N. 


994 


The  Navy.  PL  2.  REVISED  STATUTES.  Sec.  1624,  Art.  20. 

Art.  20.  [Duties  of  commanding  officers.]  Every  commanding  officer  of  a 
vessel  in  the  Navy  shall  obey  the  following  rules: — (17  July,  1862,  c.  204,  s.  16, 
V.  12,  p.  609.) 

First.  [Men  received  on  board.]  Whenever  a  man  enters  on  board, 
the  commanding  officer  shall  cause  an  accurate  entry  to  be  made  in  the  ship's 
books,  showing  his  name,  the  date,  place,  and  term  of  his  enlistment,  the  place 
or  vessel  from  which  he  was  received  on  board,  his  rating,  his  descriptive  list, 
his  age,  place  of  birth,  and  citizenship,  with  such  remarks  as  may  be  necessary. 

Second.  [List  of  officers,  men,  and  passengers.]  He  shall,  before 
sailing,  transmit  to  the  Secretary  of  the  Navy  a  complete  list  of  the  rated  men 
under  his  command,  showing  the  particulars  set  forth  in  rule  one,  and  a  list  of 
officers  and  passengers,  showing  the  date  of  their  entering.  And  he  shall  cause 
similar  lists  to  be  made  out  on  the  first  day  of  every  third  month  and  trans- 
mitted to  the  Secretary  of  the  Navy  as  opportunities  occur,  accounting  therein 
for  any  casualty  which  may  have  happened  since  the  last  list. 

Third.  [Deaths  and  desertion.]  He  shall  cause  to  be  accurately  min- 
uted on  the  ship's  books  the  names  of  any  persons  dying  or  deserting,  and  the 
times  at  which  such  death  or  desertion  occurs. 

Fourth.  [Property  of  deceased  persons.]  In  case  of  the  death  of  any 
officer,  man,  or  passenger  on  said  vessel,  he  shall  take  care  that  the  paymaster 
secures  all  the  property  of  the  deceased,  for  the  benefit  of  his  legal  representa- 
tives. 

Fifth.  [Accounts  of  men  received.]  He  shall  not  receive  on  board  any 
man  transferred  from  any  other  vessel  or  station  to  him,  unless  such  man  is  fur- 
nished with  an  account,  signed  by  the  captain  and  paymaster  of  the  vessel  or 
station  from  which  he  came,  specifying  the  date  of  his  entry  on  said  vessel  or 
at  said  station,  the  period  and  term  of  his  service,  the  sums  paid  him,  the 
balance  due  him,  the  quality  in  which  he  was  rated,  and  his  descriptive  list. 

Sixth.  [Accounts  of  men  sent  from  the  ship.]  He  shall,  whenever 
officers  or  men  are  sent  from  his  ship,  for  whatever  cause,  take  care  that  each 
man  is  furnished  wdth  a  complete  statement  of  his  account,  specifying  the  date 
of  his  enlistment,  the  period  and  term  of  his  service,  and  his  descriptive  list. 
Said  account  shall  be  signed  by  the  commanding  officer  and  paymaster. 

Seventh.  [Inspection  of  provisions.]  He  shall  cause  frequent  inspec- 
tions to  be  made,  into  the  condition  of  the  provisions  on  his  ship,  and  use  every 
precaution  for  their  preservation. 

Eighth.  [Health  of  crew.]  He  shall  frequently  consult  with  the  surgeon 
in  regard  to  the  sanitary  condition  of  his  crew,  and  shall  use  all  proper  means  to 
preserve  their  health.  And  he  shall  cause  a  convenient  place  to  be  set  apart  for 
sick  or  disabled  men,  to  which  he  shall  have  them  removed,  with  their  ham- 
mocks and  bedding,  when  the  surgeon  so  advises,  and  shall  direct  that  some  of 
the  crew  attend  them  and  keep  the  place  clean. 

Ninth.  [Attendance  at  final  payment  of  crew.]  He  shall  attend  in 
person,  or  appoint  a  proper  officer  to  attend,  when  his  crew  is  finally  paid  off,  to 
see  that  justice  is  done  to  the  men  and  to  the  United  States  in  the  settlement  of 
the  accounts 


995 


Sec.  1624,  Art.  22. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Tenth.  [Articles  for  the  government  of  the  Navy.]  He  shall  cause 
the  articles  for  the  o;overninent  of  the  Navy  to  be  hung  up  in  some  public  part  of 
the  ship  and  read  once  a  month  to  liis  ship's  company. 

[Punishment  for  offending  against  this  article.]  Every  command- 
ing oflicer  who  offends  against  the  provisions  of  this  article  shall  be  punished 
as  a  court-martial  mav  direct. 


Effects  of  deceased  persons. — Disposition 
of  money  and  other  effects  of  deceased  persons 
in  the  naval  service  is  regulated  bv  act  of 
March  29,  1918  (40  Stat.,  499). 

Manner  of  settling  accoiants  of  deceased 
officers  and  enlisted  men  in  the  Navy,  where 
amount  due  is  less  than  S500,  is  provided  for 
by  act  of  May  27,  1908  (35  Stat.,  373). 

Payment  of  arrears  due  deceased  seamen: 
See  section  274,  Revised  Statutes,  and  note 
thereto. 

Accounts  of  pay  officer  of  lost  vessel,  fixing 
date  of  loss  of  missing  vessel,  and  accoxints  of 


seamen  on  lost  vessel:  See  sections  284,  286, 
and  287,  Revised  Statutes. 

The  regulations  of  the  Navy  concerning 
payments  to  administrators  of  balances  due 
deceased  seamen  and  marines,  pa\Tnents  of 
arrearages  claimed  under  vvills,  the  wills  of 
persons  in  actual  service  and  the  attestation  of 
the  same,  etc.,  are  not  applicable  to  or  binding 
upon  the  accounting  officers  of  the  Treasury 
Department  in  the  settlement  of  naval  accounts; 
they  extend  to  and  govern  only  those  persons 
who  are  in  the  naval  service.  (16  Op.  Atty. 
Gen.,  494;  see  notes  to  sections  161  and  1547, 
Revised  Statutes,  as  to  regulations  in  general.) 


Art.  21.  [Authority  of  officers  after  loss  of  vessel.]  When  the  crew  of  any 
vessel  of  the  United  States  are  separated  from  their  vessel  by  means  of  her 
wi'eck,  loss,  or  destruction,  all  the  command  and  authority  given  to  the  officers 
of  such  vessel  shall  remain  in  full  force  until  such  ship's  company  shall  be  regu- 
larly discharged  from  or  ordered  again  into  service,  or  until  a  court-martial  or 
court  of  inquir}^  shall  be  held  to  inquire  into  the  loss  of  said  vessel.  And  if  any 
officer  or  man,  after  such  wreck,  loss,  or  destruction,  acts  contrary  to  the  dis- 
cipline of  the  Navy,  he  shall  be  punished  as  a  court-martial  may  direct. —  (17 
July,  1862,  c.  204,  s.  14,  v.  12,  p.  608.) 

Lost  or  captured  vessels. — See  sections 
1574-1575,  Revised  Statutes,  as  to  pay  of  crews 
of  lost  or  captured  vessels.  See  also  sections 
284,  286,  and  287,  Revised  Statutes,  as  to  ac- 
counts of  pay  officer  of  lost  vessel,  fixing  date 

Art.  22.  [Offenses  not  specified.]  All  offenses  committed  by  persons 
belonging  to  the  Navy  which  are  not  specified  in  the  foregoing  articles  shall 
be  punished  as  a  court-martial  may  direct. —  (17  July,  1862,  c.  204,  s.  1,  v.  12, 
p.  603,  art.  8.) 


of  loss  of  missing  vessel,  and  accounts  of  seamen 
on  lost  vessel.  See  also  note  to  article  20,  A. 
G.  N.,  as  to  effects  of  deceased  persons  and 
settlement  of  their  accounts. 


Amendment  to  this  section  was  made  bv  act  of 
March  3,  1893  (27  Stat.,  716),  reading  as 
follows:    'And  fraudulent  enlistment,  and 
the  receipt  of  any  pay  or  allowance  there- 
under,   is    hereby    declared    an    offense 
against  naval  di8ciplin(e)  and  made  punish- 
able    by    general     court-martial,     under 
article  twenty-two  of  the  articles  for  the 
government  of  the   Navy;   but  this   pro- 
vision shall  not  take  effect  until  sixty  days 
after  the  passage  of  this  act." 
Nature  of  offenses  punishable  under  this 
article. — Article  22,  A.  G.  N.,  applies  only  to 
offenses " '  not  specified  in  the  foregoing  articles, ' ' 
and  which  are  recognized  as  military  offenses 
bv  the  iisages  of  the  naval  service.     (Smith  v. 
Whitney,  116  U.  S.,  167,  183.^ 

This  article  is  not  intendea  to  confer  upon  a 
court-martial  general  criminal  jurisdiction, 
but  only  jurisdiction  over  those  offenses  (not 
specified  m  the  preceding  articles  of  the  sec- 


tion) which  are  injurious  to  the  order  and 
discipline  of  the  Navy,  the  jurisdiction  being 
giv^en  for  the  purpose  of  preserving  that  order 
and  discipline.     (16  Op.  Atty.  Gen.,  578.) 

The  reference  is  to  crimes  created  or  made 
punishable  by  the  common  law,  or  by  the 
statutes  of  the  United  States,  when  directly 
prejudicial  to  good  order  and  militarv  discip- 
line. (Carter  v.  McClaughry,  183  U.\S.,  365, 
397,  construing  article  of  war  corresponding  to 
art.  22,  A.  G.  N.) 

WTiere  an  offense  is  specifically  provided  for 
in  any  of  the  articles  of  war  prior  to  the  62d 
(corresponding  to  article  22,  A.  G.  N.),  the 
grant  of  jurisdiction  to  a  court-martial  to  try 
and  punish  such  offenses  is  conferred  by  the 
particular  article  which  mentions  it,  and  not 
by  the  general  language  of  the  62d  article  pro- 
viding for  the  punishment  of  offenses,  not 
capital,  though  not  mentioned  in  the  preced- 
ing articles.     (In  re  Carter,  97  Fed.  Rep.,  496.) 


996 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  23. 


A  charge  laid  under  article  22,  A.  G.  N., 
would  be  of  doubtful  validity  where  the 
offense  so  charged  is  specifically  provided  for 
in  one  of  the  "foregoing  articles,"  as  in  such 
case  it  could  with  much  reason  be  urged  that 
the  offense  is  excluded  by  express  language 
from  article  22.  (29  Op.  Atty.  Gen.,  563,  570; 
see  below,  under  "Embezzlement";  and  see 
note  to  art.  43,  A.  G.  N.,  as  to  charges  and 
specifications  in  general.) 

Under  the  article  of  war  providing  that  all 
crimes  not  capital,  etc.,  which  officers  and 
soldiers  may  be  guilty  of  to  the  prejudice  of 
good  order  and  military  discipline,  "though 
not  mentioned  in  the  foregoing  articles,"  are 
to  be  taken  cognizance  of  by  courts-martial 
and  punished  at  the  discretion  of  such  court, 
the  construction  would  not  be  unreasonable  if 
it  were  held  that  the  words,  "though  not 
mentioned  in  the  foregoing  articles  of  war," 
meant  "not\vithstanding  they  are  not  men- 
tioned," and  that  the  article  was  intended  to 
cover  all  crimes,  whether  previously  enumer- 
ated or  not.  It  would  be  going  much  too  far 
to  say  that  if  a  court-martial  so  construed  the 
words,  and  sentenced  for  a  crime  previously 
mentioned,  the  sentence,  when  made  his  own 
by  the  President  by  approval  thereof,  would 
be  absolutely  void.  (Carter  v.  McClaughry, 
183  U.  S.,  365,  397;  see  note  to  art.  53,  A.  G.  N.) 

Under  every  system  of  military  law  for  the 
government  of  either  land  or  naval  forces,  the 
jurisdiction  of  courts-martial  extends  to  the 
trial  and  punishment  of  the  acts  of  military  or 
naval  officers  which  tend  to  biing  disgrace  and 
reproach  upon  the  service  of  which  they  are 
members,  whether  those  acts  are  done  in  the 
performance  of  military  duties,  or  in  a  civil 
position,  or  in  a  social  relation,  or  in  private 
business.  According  to  precedent,  it  includes 
acts  having  no  relation  to  the  public  service, 
military  or  civil,  except  so  far  as  they  tend  to 
bring  disgrace  and  reproach  upon  the  former, 
such  as  making  an  unfounded  claim  for  the 
price  of  a  horse,  or  attempting  to  seduce  a 
brother  officer's  wife  during  his  illness,  or  for 
not  attempting  to  vindicate  his  honor  and 
reputation  when  accused  by  fellow  passengers 
of  stealing  property  on  board  a  vessel  while 
traveling  on  leave  of  absence,  regardless  of 
whether  such  accusation  was  true.  (Smith  v. 
Whitney,  116  U.  S.,  167,  183.) 

Courts-martial  derive  their  jurisdiction  and 
are  regulated  by  an  act  of  Congress  in  which  the 
crimes  wliich  may  be  committed,  the  manner 
of  charging  the  accused,  and  of  the  trial  and 
the  punishments  which  may  be  infhcted  are 
expressed  in  terms;  or  they  may  get  jurisdic- 
tion by  a  fair  deduction,  from  the  definition  of 
the  crime,  that  it  comprehends,  and  that  the 
legislature  meant  to  subject  to  punishment 
one  of  a  minor  degree  of  a  kindred  character 
which  has  already  been  recognized  to  be  such 
by  the  practice  of  courts-martial  in  the  army 
and  navy  ser\'ices  of  nations,  and  by  those 
functionaries  in  different  nations  to  whom  has 
been  confided  a  revising  power  over  the  sen- 
tences of  courts-martial.  And  when  offenses 
and  crimes  are  not  given  in  terms  or  by  defini- 
tion, the  want  of  it  may  be  supplied  by  a  com- 
prehensive enactment  such  as  contained  in  the 
articles  for  the  government  of  the  Navy,  which 


means  that  courts-martial  have  jurisdiction  of 
such  crimes  as  are  not  specified,  but  which 
have  been  recognized  to  be  crimes  and  offenses 
by  the  usages  in  the  navy  of  all  nations,  and 
that  they  shall  be  punished  according  to  the 
laws  and  customs  of  the  sea.  Notwithstanding 
the  apparent  indeterminateness  of  such  a  pro- 
Adsion,  it  is  not  liable  to  abuse;  for  what  those 
crimes  are  and  how  they  are  to  be  punished  is 
well  known  by  practical  men  in  the  Navy  and 
Army,  and  by  those  who  have  studied  the  law 
of  courts-martial  and  the  offenses  of  which  the 
different  courts-martial  have  cognizance. 
(Dynes  v.  Hoover,  20  IIow.,  65,  82;  Smith  v. 
Whitney,  116  U.  S.,  167,  182.;) 

A  court-martial  can  take  no  cognizance  of 
the  validity  of  a  contract.  (1  Op.  Atty.  Gen., 
177,  178.) 

For  other  cases,  see  notes  below,  under  this 
article. 

Embezzlement. — The  charge  of  embezzle- 
ment of  public  funds,  furnished  and  intended 
for  the  naval  service,  by  a  disbursing  officer  of 
the  Navy,  should  be  formulated  under  para- 
graph 9  of  article  14,  A.  G.  N.,;  but  there  is  no 
rule  of  practice  which  prohibits  the  formulation 
of  the  same  charge  under  more  than  one  article 
and  as  a  matter  of  precaution  it  might  be  ad\ds- 
able  to  formulate  the  charge  under  i)oth  articles 
14  and  22,  A.  G.  N.  (29  Op.  Atty.  Gen.,  563, 
568-570;  see  also  note  to  art.  14,  A.  G.  N.) 

Under  the  62d  article  of  war  (corresponding 
to  art.  22,  A.  G.  N.),  and  section  5488,  Revised 
Statutes  (now  sec.  87,  Criminal  Code,  Mar.  4, 
1909,  35  Stat.,  1105),  providing  for  punishment 
of  embezzlement  by  disbursing  officers,  held 
that  where  an  officer  of  the  Anny  has  been 
found  guilty  by  court-martial  of  willfully  mis- 
appropriating money  appropriated  by  Congress 
for  the  improvement  of  rivers  and  harbors,  the 
court  has  authority  to  impose  a  penalty  both 
by  fine  and  imprisonment.  (In  re  Carter,  97 
Fed.  Rep.,  496;  see  note  to  art.  14,  A.  G.  N.) 

A  charge  of  embezzlement  in  violation  of 
the  62d  article  of  war  (corresponding  to  art.  22, 
A.  G.  N.),  based  on  the  action  of  the  accused 
in  applying  to  a  purpose  not  prescribed  by  law 
large  sums  of  public  money  intrusted  to  him 
for  river  and  harbor  purposes,  was  not  the  same 
offense  as  specified  in  article  60,  subdivision  9 
of  the  articles  of  war  (corresponding  to  art.  14, 
par.  9,  A.  G.  N.),  because  it  was  not  embezzle- 
ment of  money  "furnished  or  intended  for  the 
military  service. "  Such  embezzlement  would 
seem  to  be  detrimental  to  the  service  within 
the  intent  and  meaning  of  article  62,  but  it 
is  enough  that  it  was  peculiarly  for  the  court- 
martial  to  determine  whether  the  crime  charged 
was ' '  to  the  prejudice  of  good  order  and  military 
discipline. "  (Carter  v.  McClaughry,  183  U. 
S.,  365,  396,  citing  Swaim  v.  U.  S.,  165  U.  S., 
553;  Smith  v.  Whitney,  116  U.  S.,  178;  U.  S. 
V.  Fletcher,  148  U.  S.,  84.  See  also  note  to 
art.  14,  A.  G.  N.). 

Where  an  officer  of  the  Army  was  charged 
vd^th  embezzlement  in  violation  of  section  5488, 
Revised  Statutes,  in"  violation  of  the  62d 
article  of  war,  held  that  the  specified  crime  was 
not  mentioned  in  the  preceding  articles,  be- 
cause the  embezzlement  charged  was  not  of 
money  "furnished  or  intended  for  the  military 


997 


Sec.  1624,  Art.  22. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


service."     (Carter  v.  McClaughry,  183   U.S., 
365.) 

Where  an  officer  of  the  Army  without  author- 
ily  received  sums  of  money  paid  liy  drafted 
men  for  the  purpose  of  obtaining  substitutes, 
such  men  paying  the  money  to  him  in  reliance 
upon  his  oflicial  station  and  duty  as  an  officer 
of  the  Govermnent,  and  he  converted  same  to 
his  own  use,  held  that  the  subsequent  action 
of  the  military  authorities  in  seizing  the  money, 
followed  by  his  court-martial  for  embezzlement 
thereof  and  execution  of  the  sentence  adjudged 
by  the  court,  constituted  ratification  of  his  un- 
authorized act  in  receiving  such  money;  and 
it  can  not  be  claimed  that  the  money  was  paid 
to  him  in  his  private  capacity  and  that  the 
Govermnent  is  required  to  return  same  to  his 
estate.     (Colman  v.  U.  S.,  38  Ct.  Cls.,  315.) 

An  officer  of  the  Army  was  convicted  by 
court-martial  of  embezzlement  and  sentenced 
to  be  dismissed  from  the  service,  to  forfeit  all 
pay  and  allowances  due  or  to  become  due,  to 
1)0  compelled  to  turn  over  to  such  officer  as 
the  commanding  general  should  designate  the 
sum  of  $18,963  (being  the  amount  he  was  found 
guilty  of  embezzling),  to  pay  a  fine  of  $700  to 
the  United  States,  and  to  be  imprisoned  for 
the  period  of  seven  months  at  such  place  as  the 
commanding  general  shall  designate,  and 
thereafter  until  said  fine  is  paid  and  said  smn 
of  money  is  turned  over:  Held,  that  the  portion 
of  said  sentence  that  the  money  be  turned  over 
to  the  military  authorities  was  not  illegal. 
(Colman  v.  U.  S.,  38  Ct.  Cls.,  315.)_ 

Manslaughter.— See  note  to  article  6,  A.  G. 
N.,  as  to  finding  of  manslaughter  under  charge 
of  murder. 

Where  an  assault  was  committed  on  board  a 
steamer  belonging  to  the  Navy  (the  vessel  being 
at  the  time  under  way  in  the  Thames  River 
opposite  the  city  of  New  London,  Conn. ),  by 
a  coal  heaver  in  the  naval  service  upon  a  second- 
class  fireman  in  the  same  service,  from  the 
effects  of  which  the  latter  subsequently  died: 
Held,  that  a  naval  general  court-martial  can, 
imder  article  22  of  section  1624,  Revised 
Statutes,  take  jurisdiction  of  the  offense  as 
manslaughter.     (16  Op.  Atty.  Gen.,  578.) 

It  requires  no  argument  to  show  that  an 
assault,  of  a  character  so  serious  as  to  result  in 
the  death  of  the  person  assaulted,  who  was  also 
in  the  naval  ser\dce,  is  an  offense  against;  the 
order  and  discipline  of  the  Navy,  especially 
when  among  the  enumerated  offenses  is  found 
that  of  "assault  and  battery."  (16  Op.  Atty. 
Gen.,  578.) 

The  Articles  for  the  Government  of  the  Navy 
confer  jurisdiction  upon  courts-martial  of  all 
crimes  committed  by  persons  belonging  to  the 
Navy  which  are  not  specified  in  the  foregoing 
articles;  manslaughter  falls  within  the  general 
denomination  of  a  crime,  and  naval  courts- 
martial  have  jurisdiction  to  punish  the  offense 
of  manslaughter  committed  at  sea  on  board  of 
ships  of  war.  (U.  S.  v.  Mackenzie,  30  Fed. 
Cas.  No.  18313.) 

Scandalous  conduct  tending  to  the 
destruction  of  good  morals. — WTiere  an 
officer  is  charged  wth  scandalous  conduct 
tending  to  the  destruction  of  good  morals,  it  is 
not  important  to  inquire  whether  by  the  rules 
that  govern  military  courts  the  charge  should  be 


considered  as  made  under  the  concluding 
words  of  the  first  clause  of  article  8,  A.  G.  N., 
or  under  article  22;  for  in  either  view  it  should, 
imder  the  regulations  of  1870,  recognized  and 
sanctioned  by  Congress,  be  charged  as  '  'scanda- 
lous conduct' tending  to  the  destruction  of  good 
morals."  (Smith  r.  Whitney,  116  U.  S.,  167, 
183.) 

For  other  cases,  see  notes  to  article  8,  A.  G.  N . ; 
see  also  article  43,  A.  G.  N.,  as  to  charges  and 
specifications  in  general,  and  see  note  to  article 
14,  A.  G.  N.,  under  "Jurisdiction  after  discharge 
from  the  service. ' ' 

Conduct  unbecoming  an  o£&cer  and  a 
gentleman. — See  article  43,  A.  G.  N.,  as  to 
charges  and  specifications;  and  see  notes  to 
article  14,  A.  G.  N.,  under  "Discretionary 
punishment." 

Unofiicerlike  and  ungentlemanly  conduct  is 
one  of  the  most  indefinite  and  comprehensive 
of  all  the  offenses  mentioned  in  the  articles  of 
war.     (7  0p.  Atty.  Gen.,  601,  605.) 

The  court  appreciates  the  high  requirement 
and  purpose  of  the  article  of  war  pro\'iding  that 
an  officer  or  cadet  convicted  of  conduct  unbe- 
coming an  officer  and  a  gentleman  shall  be  dis- 
missed from  the  service;  but  confesses  a  lack 
of  knowledge  of  its  definite  limitations  and  also 
admits  a  superior  capacity  in  the  military 
court  over  the  civil  to  deal  with  it.  The  same 
comments  and  admission  go  to  the  general 
article  of  war  relating  to  offenses  not  specified. 
(McRae  v.  Henkes,  273  Fed.  Rep.,  108,  revers- 
ing ex  parte  Henkes,  267  Fed.  Rep.,  276.) 

It  must  be  confessed  that  in  the  affairs  of 
civil  life  and  under  the  rules  and  principles 
of  municipal  law,  what  we  ordinarily  know 
as  fraud  relates  to  the  obtaining  of  a  man's 
money  and  not  to  the  refusal  to  pay  it  back.  It 
is  hard  for  the  trained  lawyer  to  conceive  of  an 
indictment  or  declaration  which  should  allege 
that  the  defendant  defrauded  A  or  B  by  refusing 
to  return  to  him  the  money  which  he  had 
borrowed  from  him.  Our  legal  training,  the 
legal  habit  of  mind  as  it  is  termed,  inclines  us 
to  dissociate  punishment  from  acts  which  the 
law  does  not  define  as  offenses.  That  it  is 
fraud  to  obtain  a  man's  money  by  dishonest 
representations,  but  not  a  fraud  to  keep  it 
afterwards  by  any  amount  of  lying  and  deceit, 
is  a  distinction  of  statutory  tracing.  Fletcher 
V.  U.  S.,  26  Ct.  Cls.,  541,  562;  reversed  on  other 
grounds,  U.  S.  v.  Fletcher,  148  U.  S.,  84.) 

In  military  life  there  is  a  higher  code,  termed 
honor,  which  holds  its  society  to  stricter  ac- 
countability; and  it  is  not  desirable  that  the 
standard  of  the  Army  shall  come  down  to  the 
requirements  of  a  criminal  code.  (Fletcher 
V.  U.  S.,  26  Ct.  Cls.,  541,  562;  reversed  on  other 
grounds,  U.  S.  v.  Fletcher,  148  U.  S.,  84.) 

It  may  or  may  not  be  dishonorable  for  a 
retired  oflicer  not  to  pay  his  debts;  but  that 
may  depend  upon  how  he  incurred  them,  and 
whether  it  is  within  his  human  possibilities  to 
pay  them.  In  this  case,  the  specifications 
aver,  in  one  instance,  that  the  officer  used  his 
honorable  military  position  to  borrow  money 
upon  and  assured  his  creditors  of  payment  fi'om 
the  pay  which  the  Government  allows  to  officers 
on  the  retired  list.  Certainly  the  Government 
does  not  give  oflicers  the  respectability  of  rank 
and  the  support  of  retired  pay  to  enable  them  to 


998 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  22. 


prey  upon  their  fellow  citizens.  Remembering 
the  honorable  military  record  of  the  claimant, 
the  court  is  averse  to  commenting  upon  the 
details  of  the  specifications,  especially  as  it  is 
not  at  liberty  to  re\ie'W  the  e\idence,  but  at 
the  same  time  can  not  hold  that  refusing  to  pay 
a  debt  may  not  be  conduct  unbecoming  an 
officer  and  a  gentleman.  (Fletcher  v.  U.  S.,  26 
Ct.  Cls.,  541,  562;  reversed  on  other  grounds, 
U.  S.  V.  Fletcher,  148  U.  S.,  84. : 

An  officer  of  the  Army  was  tried  for  conduct 
unbecoming  an  officer  and  a  gentleman;  it  was 
objected  that  the  court-martial  had  no  juris- 
diction, because  the  charges  and  specifications 
stated  no  offense  whatever  wdtliin  the  rules 
and  articles  of  war.  or  known  to  the  military 
law  and  custom  of  the  United  States;  the 
specifications  related  to  the  incurring  by  the 
accused  of  certain  indebtedness;  it  was  argued 
that  nonpayment  of  debts  does  not  justify 
con\dction  of  the  charge:  Held,  that  the 
specifications  went  further  than  that,  and  con- 
tained the  element  that  the  circumstances 
under  which  the  debts  were  contracted  and  not 
paid  were  such  as  to  render  the  officer  ame- 
nable to  the  charge;  and  as  the  specifications 
were  not  objected  to,  and  the  court-martial 
had  jurisdiction,  errors  in  its  exercise,  if  any, 
can  not  be  reviewed  by  the  ci\dl  courts  in  a  suit 
by  the  accused  officer  for  the  pay  of  the  office 
from  which  he  had  been  dismissed  pursuant 
to  sentence  of  the  court-martial.  (U.  S.  v. 
Fletcher,  148  U.  S..  84.) 

"Of  course,  the  failui'e  to  pay  debts  and  the 
circumstances  under  which  the  debts  were 
contracted,  when  their  payment  is  postponed 
or  neglected,  may  constitute  conduct  unbe- 
coming an  officer.  But  here  the  debts  have 
been  paid ;  and  they  were  not  so  great  in  amount 
or  so  many  as  to  indicate  utter  recklessness 
when  it  is  considered  that  Lieut.  Burt  is  a 
married  man  and,  necessarily,  had  the  expense 
of  a  family  upon  him  in  addition  to  that  at- 
tendant upon  his  sea  service.  I  am  bound  to 
say  that  the  specifications  which  were  handed 
to  me  as  to  the  immorality  involved  in  his  re- 
lation to  debts  seem  to  be.  many  of  them, 
strained,  and  I  can  not  think  that  it  is  just  to 
eliminate  Mm  from  the  naval  service  for  such 
delinquency."  (Action  of  President  Taft, 
case  of  Lieut.  Charles  P.  Burt,  U.  S.  N.,  re- 
ported not  morally  qualified  for  promotion, 
file  26260-1392:15,  Jan.  2,  1912;  see  note  to 
sec.  1456,  R.  S.) 

The  charge  of  conduct  unbecoming  an  of- 
ficer and  a  gentleman  specified  in  the  articles 
of  war  is  not  properly  limited  to  only  offenses 
of  the  grossest  and  basest  character,  oi  such  a 
natm-e  as  to  render  the  guilty  party  a  moral 
and  social  outlaw.  It  should  not  be  necessary 
to  prove  that  an  individual  is  a  moral  mon- 
strosity in  order  to  demonstrate  Ms  unfitness 
to  be  a  trusted  officer  of  the  Army.  (18  Op. 
Atty.  Gen.,  113,  117.) 

Undoubtedly,  charges  of  mere  indecorum 
should  not  be  made  the  basis  of  prosecutions 
under  the  article  of  war  specifying  conduct 
unbecoming  an  officer  and  a  gentleman.  The 
punishment  annexed  to  a  con\iction  under 
that  article  clearly  indicates  that  prosecutions 
should  be  limited  to  the  more  serious  classes 
of  offenses.     But  between  the  grossest  offenses 


of  which  an  officer  may  be  guilty  and  which 
are  not  specially  enumerated  in  the  articles  of 
war,  and  those  of  a  character  simply  prejudicial 
to  good  order  and  military  discipline,  such  as 
are  apparently  contemplated  by  the  62d 
article  of  war  (corresponding  to  art.  22,  A.  G. 
N.),  there  are  intervening  grades  of  offenses, 
many  of  wMch  are  in  every  proper  sense  of  the 
words  unbecoming  an  officer  and  a  gentleman, 
and  the  commission  of  wMch  by  any  person  is 
a  sure  indication  that  he  is  unfitted  to  hold  an 
office  of  trust  and  honor  in  the  military  service. 
(18  Op.  Atty.  Gen.,  113,  118.) 

Conduct  imbecoming  an  officer  and  a  gentle- 
man is  not  the  same  offense  as  conspiring  to 
defraud  the  Umted  States,  or  causing  false 
and  fraudulent  claims  to  be  made  against  the 
Umted  States,  although  to  be  guilty  of  the 
latter  charges  involves  being  gmlty  of  the 
former.  (Carter  v.  McClaugMy,  183  U.  S., 
305,  395.) 

The  same  conduct  constituting  an  offense 
elsewhere  provided  for  in  the  articles  of  war 
may  also  warrant  a  finding  of  guilty  by  a  court- 
martial  under  the  article  providing  that  '  'any 
officer  who  shall  be  con\acted  of  conduct  un- 
becoming an  officer  and  a  gentleman  shall  be 
dismissed  from  the  ser\ice."'  (In  re  Carter, 
97  Fed.  Rep.,  496.) 

It  is  not  possible  for  an  officer  to  do  any  act 
pumshable  by  the  known  laws  of  the  land,  how- 
ever foreign  that  act  may  be  to  Ms  duties  or 
immediate  relations  as  a  soldier,  which  shall 
not  be  cogmzable  by  court-martial .  To  commit 
a  crime  of  any  sort  is,  to  say  the  least  of  it,  in 
general,  unofficerKke  and  ungentlemanly  con- 
duct.    (6  Op.  Atty.  Gen.,  413,  415.) 

The  plea  of  autrefois  acquit,  averring  a  for- 
mer trial  and  acquittal  for  manslaughter  in  the 
supreme  court  of  a  State,  and  that  said  charge 
was  sustainable  only  by  the  same  evidence  as 
must  be  used  to  sustain  the  charge  of  unofficer- 
like  or  ungentlemanlike  conduct,  is  not  a 
bar  to  the  proceedings  before  an  Army  court- 
martial  to  punish  the  accused  for  the  latter 
offense.  The  two  offenses  are  altogether  dif- 
ferent.    (3  Op.  Atty.  Gen.,  749.) 

The  fact  that  tM'ee  specifications  under  the 
charge  of  \dolating  the  95th  article  of  war  (con- 
duct unbecoming  an  officer  and  a  gentleman) 
were  identical  with  those  under  the  charge  of 
violating  the  96th  article  (offenses  not  specified) 
did  not  operate  to  put  the  accused  twice  in 
jeopardy  for  the  same  offense.  As  a  question 
of  pleading  it  is  quite  clear  that  the  two  charges 
are  not  one  and  the  same  offense.  It  was  neces- 
sary to  establish  a  fact  under  one  charge  not 
required  under  the  other;  conviction  could  not 
be  had  on  the  first  charge  unless  it  be  proven 
that  the  accused  was  an  officer;  _  no  such  proof 
was  needed  under  the  general  article.  Further- 
more, that  was  a  question  of  procedure,  not  of 
jurisdiction,  wMch  the  court-martial  having 
obtained  jurisdiction  was  competent  to  decide. 
(McRae  v.  Henkes,  273  Fed.  Rep.,  108.) 

^Miere  the  court  finds  upon  certain  specifica- 
tions that  the  accused  was  guilty  of  presenting 
to  the  Secretary  of  War  a  wTitten  indorsement 
contaimng  certain  specific  statements  which 
the  accused  knew  to  be  false,  and  of  making 
such  statements  for  the  purpose  and  with  the 
intention  of  deceiving  the  Secretary  of  War, 


999 


Sec.  1624,  Art.  22. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


it  should  haA-e  found  him  guilty  of  conduct  un- 
becoming an  oliicer  and  a  gentleman,  as 
charged,  and  not  merely  of  conduct  to  the 
prejudice  of  good  order  and  military  discipline. 
Untruthful  statements  made  by  a  high  military 
officer  to  the  official  head  of  the  War  Depart- 
ment have  not  been  regarded  in  the  past  as  any 
less  of  an  offense  than  one  unbecoming  an  officer 
and  a  gentleman.  (18  Op.  Atty.  Gen.,  113; 
see  art.  8,  A.  G.  N.,  first  paragraph.) 

Conduct  to  the  prejudice  of  good  order 
and  discipline. — See  note  above,  under 
"Embezzlement"-  and  see  note  to  article  8, 
A.  G.  N.,  under  "Drunkenness";  see  also  note 
below,  under  "Jurisdiction  of  courts-martial 
concurrent  •with  civil  courts." 

The  offense  committed  by  an  enlisted  man  of 
the  Army  on  guard  duty  at  the  United  States 
jail  in  the  District  of  Columbia,  in  maliciously 
and  \nth  intent  to  kill  assaulting  a  civilian 
prisoner  confined  in  said  jail,  was  clearly  one  to 
the  prejudice  of  good  order  and  military  dis- 
cipline in  violation  of  the  62d  article  of  war. 
Shooting  with  intent  to  kill  is  a  civil  crime, 
but  shooting  by  a  soldier  of  the  Army  standing 
guard  over  a  prison  with  intent  to  kill  a  prisoner 
confined  therein  is  not  only  a  crime  against 
society  but  an  atrocious  breach  of  military  dis- 
cipline, although  the  prisoner  who  was  shot  at 
was  not  himself  connected  with  the  military 
service.  The  offense  was  not  simply  an  assault 
\yiih  intent  to  kill,  but  an  assault  by  a  soldier 
on  duty  with  intent  to  kill  a  prisoner  confined 
in  a  jail  over  which  he  was  standing  guard,  such 
shooting  being  in  direct  violation  of  orders 
under  which  he  was  acting.  (Ex  parte  Mason, 
105  U.S.,  696.) 

WTien  the  act  charged  as  * '  conduct  to  the  prej- 
udice of  good  order  and  military  discipline ' ' ' 
is  actually  a  crime  against  society  which  is 
punishable  by  imprisonment  in  the  peniten- 
tiary, an  Army  court-martial  is  authorized  to 
inflict  that  kind  of  punishment  under  the  97th 
article  of  war  providing  that  "no  person  in  the 
military  service  shall,  under  the  sentence  of  a 
court-martial,  be  punished  by  confinement  in  a 
penitentiary,  unless  the  offense  of  which  he 
may  be  convicted  would,  by  some  statute  of  the 
United  States,  or  by  some  statute  of  the  State, 
Territory,  or  District  in  which  such  offense  may 
be  committed,  or  by  the  common  law,  as  the 
same  exists  in  such  State,  Territory,  or  District, 
subject  such  convict  to  such  punishment." 
The  act  done  is  a  civil  crime  and  the  trial  is  for 
that  act;  the  proceedings  are  had  in  a  court- 
martial  because  the  offender  is  personally 
amenable  to  that  jurisdiction  and  what  he  did 
was  not  only  criminal  according  to  the  laws  of 
the  land  but  prejudicial  to  the  good  order  and 
discipline  of  the  Army  to  which  he  belonged. 
(Ex  parte  i^Iason,  105  U.  S.,  696,  700.) 

Fraudulent  enlistment. — See  notes  to  sec- 
tions 761,  1418-1420,  Revised  Statutes;  and  see 
note  above,  under  preamble  to  section  1624, 
subheadings " Void  enlistment"  and  "Voidable 
enlistment";  and  see  article  19,  A.  G.  N. 

Where  a  minor  under  the  required  age  did 
nothing  but  attempt  to  enlist,  receiving  no  pay 
or  allowances,  he  is  not  guilty  of  the  offense  of 
fraudulent  enlistment  denounced  by  the 
articles  of  war.  (Hoskins  v.  Pell,  239  Fed. 
Rep.,  279.) 


Whether  a  minor  charged  with  fraudulent 
enlistment  is  innocent  of  the  charge  made 
against  him,  or  whether  he,  a  boy  less  than 
17  years  old,  should  be  punished  for  an  offense 
possibly  committed  under  impulses  that  were 
patriotic,  are  matters  for  the  exclusive  con- 
sideration and  action  of  the  court-martial. 
(Ex  parte  Foley,  243  Fed.  Rep.,  470.) 

The  civil  courts  should  not  interfere  by 
habeas  corpus  to  discharge  a  minor  under  18 
years  of  age  who  has  been  enlisted  in  the  naval 
service  without  the  consent  of  his  parents  or 
guardian  if  at  the  time  of  the  presentation  of  the 
petition  for  the  writ  the  minor  is  under  arrest 
and  held  for  trial  by  court-martial  on  a  charge 
of  desertion  or  fraudulent  enlistment  or  other 
charge  cognizable  by  a  naval  court.  (Dilling- 
ham V.  Booker,  163  Fed.  Rep.,  696.) 

The  crime  of  fraudulent  enlistment  is  exclu- 
sively a  military  or  naval  offense,  triable  and 
punishable  only  by  comt-martial,  and  it  has 
been  found  necessary  so  to  legislate  in  order  to 
maintain  the  discipline  and  efficiency  of  the 
military  and  naval  establishments  of  the  Gov- 
ernment. (Dillingham  v.  Booker,  163  Fed. 
Rep.,  696.) 

A  minor  under  18  who  fraudulently  enlists  in 
the  Navy  is  nevertheless  both  de  facto  and  de 
jure  in  the  Na^^  until  discharged  therefrom  by 
operation  of  law;  and  while  he  is  such  a  seaman 
he  is  subject  to  the  rules  and  regulations  of  the 
Navy  and  liable  to  be  tried  and  punished  for 
any  infraction  of  the  law  relating  thereto. 
(Dillingham  v.  Booker,  163  Fed.  Rep.,  696. 
But  see  Hoskins  v.  Pell,  239  Fed.  Rep.,  279, 
holding  that  the  enlistment  of  a  minor  below 
the  age  at  which  he  could  legally  be  enlisted, 
even  with  the  consent  of  his  parents  or  guardian, 
was  not  merely  voidable  but  void  ab  initio.) 

Where  a  minor  under  18  years  of  age  who 
enlisted  without  the  consent  of  his  parents  was, 
before  they  obtained  his  release  on  habeas  corpus, 
arrested  by  the  military  authorities  for  fraudu- 
lent enlistment,  the  question  whether  he  was  so 
arrested  before  or  after  the  issue  and  ser\dce  of 
the  writ  is  immaterial  with  respect  to  the  right 
of  the  military  authorities  to  punish  him  for 
Buch  military  offense;  and  the  jurisdiction  of  the 
military  authorities  could  not  be  displaced  by 
the  act  of  the  court  in  issuing  a  writ  of  habeas 
corpus.     (Ex  parte  Foley,  243  Fed.  Rep.,  470.) 

The  fact  that  a  person  was  enlisted  in  the 
Navy  before  reaching  the  required  age,  and  in 
violation  of  the  statute  requiring  consent  of  his 
parents  or  guardian,  does  not  render  his  enlist- 
ment void;  and  he  is  subject  to  arrest  and 
punishment  for  desertion  or  other  infraction  of 
the  rules  and  regulations  of  the  Navy,  and  can 
not  be  discharged  on  writ  of  habeas  corpus  pend- 
ing proceedings  against  him  therefor.  (Ex 
parte  Rock,  171  Fed.  Rep.,  240.  Note.— 
In  this  case  the  court  considered  the  following 
provision  in  the  annual  naval  appropriation  act 
which  had  not  been  before  the  courts  in  prior 
cases:  "No  part  of  this  appropriation  shall  be 
expended  in  recruiting  seamen,  ordinary  sea- 
men, or  apprentice  seamen,  unless  a  certificate 
of  birth  or  written  evidence  other  than  his  own 
statement,  satisfactory  to  the  recruiting  officer, 
showing  the  applicant  to  be  of  the  age  required 
by  naval  regulations,  shall  be  presented  with 
the  application  for  enlistment,"  which  certi- 


1000 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  22. 


ficate  or  statement  was  not  furnished  by  the 
applicant  in  this  case.) 

Where  a  minor  who  falsely  stated  his  age  when 
enlisting  in  the  Army  was  arrested  for  fraudu- 
lent enlistment  in  ^dolation  of  the  articles  of 
war,  after  serA-ice  of  a  writ  of  habeas  corpus  sued 
out  by  his  mother  but  before  the  hearing  thereon, 
held  that  he  would  not  be  taken  from  the 
custody  of  the  military'  authorities.  (U.  S.  v. 
WilUford,  220  Fed.  Rep.,  291.) 

The  ci\il  courts  will  not,  on  habeas  corpus 
brought  by  the  parent  of  a  minor  oA'er  16  and 
under  18  years  of  age  to  avoid  his  enlistment  in 
the  National  Guard  while  in  the  ser\'ice  of  the 
United  States,  command  his  immediate  sur- 
render by  the  military  authorities  where  by 
reason  of  his  enlistment  he  committed  a  military 
offense;  but  will  allow  his  retention  by  the 
military  authorities  so  that  he  may  be  punished 
by  the  proper  military  tribunal  for  the  military 
offense.  (Hoskins  v.  Dickerson,  239  Fed.  Rep., 
275.) 

Jurisdiction  of  courts-martial  concur- 
rent with,  civil  courts.— An  officer  may  be 
tried  by  court-martial  for  the  military  relations 
of  an  act,  after  ha\ing  been  tried  by  the  ci^^.l 
authorities  of  a  state  for  the  ci\il  relations  of 
the  same  act.  In  such  case  the  offender  is 
punishable  both  as  a  citizen,  subject  to  the 
municipal  law  of  the  place,  and  also  as  a  soldier 
or  officer  subject  to  the  military  law  of  _  the 
United  States.  Such  double  accountability 
to  two  different  jurisdictions,  and  the  different 
and  double  punishments  for  the  same  act, 
making  two  different  offenses,  is  settled  to  be 
lawful  by  the  decisions  of  the  Supreme  Court 
of  the  United  States.  (6  Op.  Atty.  Gen.,  506, 
following  6  Op.  Atty.  Gen.,  413,  and  citing 
Moore  v.  Illinois,  14  How.,  20;  Fox  v.  Ohio, 
5  How.,  434,  435;  U.  S.  v.  Marigold,  9  How., 
569.) 

The  jm-isdiction  of  military'  tribunals  is  not 
exclusive  in  time  of  peace  and  in  territoiy  where 
the  supremacy  of  the  United  States  is  recog- 
nized and  the  relations  between  the  local 
goA'ernment  and  the  National  Government 
normal,  and  where  the  jurisdiction  of  the  local 
ci\'il  courts  is  not  disturbed.  But  when  the 
armies  of  the  United  States  are  in  hostile 
territory,  and  engaged  in  actual  warfare,  the 
jurisidction  of  such  tribunals  over  offenses  by 
persons  in  the  militarj^  ser\-ice  is  exclusive; 
and  this  applies  to  the  condition  which  existed 
in  the  Philippine  Islands  during  the  insurrec- 
tion.    (24  Op.  Atty.  Gen.,  570,  574.) 

\Miere  a  United  States  soldier  killed  a  fellow 
soldier  during  a  military  encampment,  and  on 
being  surrendered  to  the  ci\il  authorities  of  the 
State  was  prosecuted  for  murder  and  acquitted, 
such  acquittal,  though  a  final  determination  of 
his  innocence  of  murder  and  of  each  lesser  of- 
fense necessarily  included  therein,  was  no  bar 
to  his  subsequent  military  arrest  and  trial  by 
a  general  court-martial  for  "conduct  to  the  prej- 
udice of  good  order  and  military  discipline" 
in  violation  of  the  articles  of  war,  though  based 
on  the  same  act.  (In  re  Stubbs,  133  Fed. 
Rep.,  1012.) 

Although  the  act  prohibited  in  the  specifica- 
tion of  the  charge  upon  which  the  soldier  was 
brought   to   trial   before   a   court-martial   was 


identical  with  the  act  alleged  in  the  information 


for  murder  upon  which  he  was  acquitted  by 
the  State  court,  the  elements  constituting  the 
offense  charged  are  radically  different.  After 
ha-vdng  surrendered  him  to  the  civil  authorities, 
his  military  superiors  could  not  lawfully  deal 
with  him  for  murder,  manslaughter,  or  a 
criminal  assault,  considered  as  a  crime  against 
society  in  general ;  but  it  is  equally  true  that 
the  civil  court  had  no  jurisdiction  to  adjudicate 
any  question  with  respect  to  the  soldier's 
conduct  as  a  soldier.  Although  the  same  act 
was  specified,  the  gist  of  the  offense  charged  was 
unsoldierly  conduct  by  a  soldier,  subversive 
of  military  discipline.  For  that  offense  the 
prisoner  continued  to  be  amenable  to  military 
law  notwithstanding  the  acquittal  by  the  State 
court.     (In  re  Stubbs,  133  Fed.  Rep.,  1012.) 

The  surrender  of  the  soldier  to  the  civil 
authorities  did  not  have  the  effect  to  absolve 
him  from  his  obligation  under  the  terms  of  his 
enlistment;  nor  to  divest  his  superior  military 
officers  of  their  authority  to  proceed  against 
him  for  the  military  offense.  (In  re  Stubbs, 
133  Fed.  Rep.,  1012.) 

It  is  well  settled  that  an  acquittal  or  convic- 
tion in  a  State  court  is  not  a  good  defense  in  the 
courts  of  the  United  States;  but  the  rule  is 
different  where  both  courts  derive  their  power 
fi'om  the  same  sovereignty.  (U.  S.  v.  Block, 
262  Fed.  Rep.,  205,  holding  that  acquittal  by 
court-martial  is  bar  to  trial  in  Federal  civil 
court.) 

An  anny  general  court-martial  may  take 
cognizance  of  all  crimes  not  capital  committed 
against  public  law  by  an  officer  or  soldier  of  the 
Army,  within  the  limits  of  the  territorj'^  within 
which  he  is  senang;  and  while  this  jurisdic- 
tion is  not  exclusive  but  only  concurrent  with 
that  of  the  ci\dl  courts,  if  a  court-martial  first 
acquires  jurisdiction  its  judgment  can  not  be 
disregarded  by  the  civil  courts  for  mere  error 
or  for  any  reason  not  affecting  the  jurisdiction 
of  the  court  rendering  it.  (Grafton  v.  U.  S., 
206  U.  S.,  333,  348,  holdingthat  acquittal  of  a 
soldier  by  Army  court-martial  was  a  bar  to  his 
trial  by  the  courts  of  the  Philippine  Islands 
for  the  same  offense,  though  called  by  a  differ- 
ent name,  both  courts  having  derived  their 
jurisdiction  from  the  same  sovereignty.) 

Any  possible  conflict  as  to  jurisdiction 
between  civil  and  military  courts  can  be  ob- 
viated, either  by  withholding  from  courts- 
martial  all  authority  to  try  officers  or  soldiers 
for  crimes  prescribed  by  the  civil  power, 
leaving  the  civil  tribunals  to  try  such  offenses, 
or  by  investing  courts-martial  with  exclusive 
jurisdiction  to  try'  such  officers  and  soldiers  for 
all  crimes  not  capital.  (Grafton  v.  U.  S.,  206 
U.  S.,  333,  352.) 

The  62d  article  of  war  (relating  to  offenses  not 
specified)  does  not  vest  nor  purport  to  vest 
exclusive  jurisdiction  in  courts-martial;  and 
civil  courts  have  concurrent  jinisdiction  over 
all  offenses  committed  by  a  military  officer 
which  may  be  punished  under  the  pro\isions 
of  that  article.  (Franklin  v.  U.  S.,  216  U.  S., 
559.) 

The  articles  of  war  contain  no  direct  and  clear 
expression  of  a  purpose  on  the  part  of  Con- 
gress, conceding  for  the  sake  of  the  argument 
that  autlority  exists  under  the  Constitution  to 
do  so,  to  bring  about,  as  the  mere  result  of  a 


1001 


Sec.  1624,  Art.  24. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


Ships  of  war  enjoy  the  full  rights  of  exterri- 
toriality in  foreign  ports  and  territorial  waters. 
(8  0p.  Atty.  Gen.,  73.) 

For  other  cases,  see  note  to  article  6,  A.  G.  N., 
as  to  jurisdiction  of  murder;  note  to  Constitu- 
tion, Article  I,  section  8,  clause  14,  under 
"V.  Jurisdiction  of  civil  courts,"  and  note  to 
fifth  amendment,  under  "II.  Protection 
against  double  jeopardy";  see  also  note  to  arti- 
cle 14,  A.  G.  N.,  under  "Jurisdiction  of  civil 
authorities." 

Piinishinent  for  violation  of  article  22. — 
See  note  above,  under  "Embezzlement";  and 
see  note  to  article  14,  A.  G.  N.,  under  "Dis- 
cretionary punishment";  see  also  notes  to 
articles  8  and  63,  A.  G.  N. 


declaration  of  war,  the  complete  destruction  of 
State  authority  and  the  extraordinary  extension 
of  military  power  which  would  be  involved  in 
making  the  jurisdiction  of  Army  courts-martial 
exclusive  of  State  authority  in  the  case  of 
murder  and  other  offenses  committed  by  per- 
sons in  the  military  service.  (Caldwell  v. 
Parker,  252  U.  S.,  376,  385.) 

It  can  not  be  disputed  that  the  effect  of  this 
grant  was  to  confer  upon  courts-martial,  as  to 
offenses  inherently  military,  an  exclusive 
authority  to  try  and  punish.  In  so  far,  how- 
ever, as  respects  acts  which  were  criminal  under 
the  State  law,  but  which  became  subject  to 
military  authority  because  they  could  also  be 
treated  as  prejudicial  to  good  order  and  military 
discipline,  a  concurrent  power  necessarily 
arose.     (Caldwell  v.  Parker,  252  U.  S.,  376,  381.) 

Art.  23.  [Offenses  committed  on  shore.]  All  offenses  committed  by  persons 
belonging  to  the  Navy  while  on  shore  shall  be  punished  in  the  same  manner  as 
if  they  had  been  committed  at  sea. —  (17  July,  1862,  c.  204,  s.  1,  v.  12,  p.  603, 
art.  9.) 

Art.  24.  [Punishments  by  order  of  commander.]  No  commander  of  a  vessel 
shall  inflict  upon  a  commissioned  or  warrant  officer  any  other  punishment  than 
private  reprimand,  suspension  from  duty,  arrest,  or  confinement,  and  such 
suspension,  arrest,  or  confinement  shall  not  continue  longer  than  ten  days, 
unless  a  further  period  is  necessary  to  bring  the  offender  to  trial  by  a  court- 
martial;  nor  shall  he  infhct,  or  cause  to  be  inflicted,  upon  any  petty  officer,  or 
person  of  inferior  rating,  or  marine,  for  a  single  offense,  or  at  any  one  time,  any 
other  than  one  of  the  following  punishments,  namely: 

First.  Reduction  of  any  rating  estabhshed  by  himself. 

Second,  Confinement,  with  or  \snthout  irons,  single  or  double,  not  exceeding 
ten  days,  unless  furtlier  confinement  be  necessary,  in  the  case  of  a  prisoner  to 
be  tried  by  court-martial. 

Third.  Solitary  confinement,  on  bread  and  water,  not  exceeding  five  days. 

Fourth.  Solitary  confinement  not  exceeding  seven  days. 

Fifth.  Deprivation  of  liberty  on  shore. 

Sixth.  Extra  duties. 

No  other  punishment  shall  be  permitted  on  board  of  vessels  belonging  to  the 
Navy,  except  by  sentence  of  a  general  or  summary  court-martial.  All  punish- 
ments inflicted  by  the  commander,  or  by  his  order,  except  reprimands,  shall  be 
fully  entered  upon  the  ship's  log. —  (17  July,  1862,  c.  204,  s.  1,  v.  12,  p.  603, 
art.  10.     Wilkes  v.  Dinsman,  7  How.,  89.     Dmsman  v.  Wilkes,  12  How.,  390.) 

Deck  courts  for  the  punishment  of  minor  of- 
fenses were  authorized  by  act  of  February 

16,  1909  (35  Stat.,  621),  amended  by  acts 

of  Ausiust  29,   1916  (39  Stat.,   586),   and 

October  6,  1917  (40  Stat.,  393). 
"Hereafter  all  officers  of  the  Navy  and  Marine 

Corps  who  are  authorized  to  order  either 

general  or  summary  courts-martial  *    *    * 

shall   have  the  same   authority  to  inflict 

minor  punishments  as  is  conferred  by  law 

upon  the  commander  of  a  naval  vessel." 

(Act  Aug.  29,  1916,  39  Stat.,  586.) 
"The  use  of  irons,  single  or  double,  as  a  form 

of  punishment  in  the  Navy  of  the  United 

States  is  hereby  abolished,  except  for  the 


purposes  of  safe  custody  or  when  part  of 
the  sentence  imposed  by  a  general  court- 
martial."  (Act  May  13,  1908,  35  Stat., 
132.) 

"The  use  of  irons,  single  or  double,  is  hereby 
abolished,  except  for  the  purpose  of  safe 
custody  or  when  part  of  a  sentence  imposed 
by  a  general  court-martial."  (Act  Feb. 
16,  1909,  sec.  8,  35  Stat.,  621.) 

"When  *  *  *  empowered  by  the  Sec- 
retary of  the  Navy  to  order  summary 
courts-martial,  the  commanding  officer  of 
a  naval  hospital  or  hospital  ship  shall  be 
empowered  to  *  *  *  inflict  the  pun- 
ishments which  the  commander  of  a  naval 


1002 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  24. 


vessel  is  authorized  by  law  to  inflict,  upon 
all    enlisted    men    of    the    naval    service 
attached  thereto,  whether  for  duty  or  as 
patients."     (Act  Aug.  29,  1916,  39  Stat., 
586.) 
'■'When  a  force  of  marines  is  embarked  on  a 
naval    vessel,    or    vessels,    as    a    separate 
organization,  not  a  part  of  the  authorized 
complement  thereof,    the   authority   and 
powers  of  the  officers  of  such  separated 
organization  of  marines  shall  be  the  same 
as  though  such  organization  were  serving 
at  a  navy  yard  on  shore,  but  nothing  here- 
in shall   be   construed   as  impairing  the 
paramount  authority  of  the  commanding 
officer  of  any  naval  vessel  over  the  vessel 
under  his  command  and  all  persons  em- 
barked   thereon."     (Act    Aug.    29,    1916, 
39  Stat.,  586.) 
Necessity  of  commander's  power. — It  is 
a  matter  of  most  common  information  that  it  is 
essential  to  the  efficiency  and  discipline  of  the 
Navy  that  a  commanding  officer  should  have 
the  right  and  the  power,  promptly,  by  arrest 
and  otherwise,  to  enforce  obedience  to  orders 
and  fidelity  to  duty.     To  this  end  article  24, 
A.  G.  N . ,  recognizes  the  right  of  such  commander 
to  reprimand,  suspend  from  duty,  arrest,  or 
confine    the    delinquent   inferior   officer;  and 
recognizing  such  right  puts  limitations  thereon. 
That  such  a  power  in  a  connnanding  officer  is 
essential  is  too  plain  for  argument.     (19  Op. 
Atty.  Gen.,  472,  474.) 

Civil  liability  for  abuse  of  power.— The 
almost  despotic  power  \\dth  which  the  law 
clothes  the  commanding  officer  for  the  time 
being,  and  which  is  absolutely  necessary  for 
the  safety  and  efficiency  of  the  ship,  make  it 
more  especially  liis  duty  not  to  abuse  it.  And 
if,  from  maUce  to  an  individual,  or  vindictive 
feeling,  or  a  disposition  to  oppress,  he  inflicts 
punishment  beyond  that  which  in  his  sober 
judgment  he  would  have  thought  necessary,  he 
is  lialile  to  an  action  for  damages.  If  the 
pimishment  inflicted  was  forbidden  by  law  or 
beyond  the  power  which  the  law  confided  to 
him,  he  would  be  liable  whatever  were  his 
motives.  (Dinsman  v.  Wilkes,  12  How.,  390, 
403.) 

It  is  not  to  be  lost  sight  of,  that  while  the  com- 
manding officer  is  to  be  protected  under  mere 
errors  of  judgment  in  the  discharge  of  his 
duties,  yet  he  is  not  to  be  shielded  from  respon- 
sibility if  he  acts  out  of  his  authority  or  juris- 
diction, or  inflicts  private  injury,  either  from 
malice,  cruelty,  or  any  species  of  oppression 
founded  on  considerations  independent  of 
public  ends.  The  hiunblest  seaman  or  marine 
is  to  be  sheltered  under  the  aegis  of  the  law  from 
any  real  wrong,  as  well  as  tlie  highest  in  office. 
(Wilkes  V.  Dinsman,  7  How.,  89,  123,  129.) 

An  action  by  a  marine  against  his  com- 
manding officer  for  punishment  inflicted  upon 
him  for  refusing  to  do  duty  in  a  foreign  port, 
upon  the  ground  that  the  time  of  his  enlistment 
had  expired  and  that  he  was  entitled  to  his 
discharge,  is  a  case  of  much  delicacy  and  im- 
portance as  regards  our  naval  service.  For  it 
is  essential  to  its  security  and  efficiency  that  the 
authority  and  command  confided  to  the  officer, 
when  it  has  been  exercised  from  proper  motives, 
should  be  firmly  supported  in  the  courts  of 


justice  as  well  as  on  shipboard.  But  at  the  same 
time  it  must  be  rememl^ered  that  the  nation 
would  be  equally  dishonored  if  it  permitted 
the  humblest  individual  in  its  service  to  be 
oppressed  and  injured  by  his  commanding  offi- 
cer from  malice  or  ill  will,  or  the  wantonness 
of  power,  without  gi^■ing  him  redress  in  the 
courts  of  justice.  (Dinsman  r.  Wilkes,  12 
How.,  390,  402.) 

Discretion  of  commander.— The,  com- 
manding officer,  in  causing  punishments  to 
be  infficted  upon  a  seaman  for  disobedience  of 
orders,  was  acting  as  a  public  officer  invested 
with  certain  discretionary  powers,  and  can  not 
be  made  answerable  by  civil  suit  for  any 
injury  when  acting  within  the  scope  of  his  au- 
thority and  not  influenced  by  malice,  con-up- 
tion,  or  cruelty.  His  position  is  quasi  judicial. 
In  order  to  hold  him  civilly  liable  for  damages, 
it  is  not  enough  to  show  that  he  committed  an 
error  in  judgment,  but  it  must  have  been  a 
willful  and  malicious  error.  (Wilkes  v.  Dins- 
man, 7  How.,  89,  123,  129.) 

The  commanding  officer  is  the  judge  of  the 
degi'ee  of  punishment  necessary  to  suppress  a 
spirit  of  disobedience  and  insubordination; 
and  he  is  not  liable  to  an  action  for  a  mere  error 
in  judgment,  even  if  the  jury  suppose  that 
milder  measures  would  have  accomplished  his 
object.  But  at  the  same  time  he  is  bound 
never  to  inflict  any  severer  punishment  than 
he  conscientiously  believes  to  be  necessary  to 
maintain  discipline  and  due  subordination  in 
his  ships.     (Dinsman  v.  Wilkes,  12  How._,  390.) 

As  regards  the  degree  of  punishment,  it  was 
the  duty  of  the  commanding  officer  to  maintain 
proper  discipline  and  order  among  the  officers 
and  men  under  his  command,  and  if  a  spirit 
of  disobedience  and  insubordination  mani- 
fested itself  in  the  squadron,  he  was  bound  to 
suppress  it ;  and  he  might  use  severe  measures 
for  that  purpose,  if  he  deemed  such  measures 
necessary.  And  if  in  his  judgment  the  con- 
tinued refusal  of  the  plaintiff  to  do  duty  made 
it  necessary  to  confine  him  on  shore  rather  than 
on  shipboard,  in  order  to  reduce  him  to  obe- 
dience, or  necessary  to  deter  others  from  a  like 
offense,  he  was  justified  in  so  doing;  and 
while  he  acted  honestly  and  from  a  sense  of 
duty,  and  with  a  single  idea  to  the  welfare 
of  the  service  in  which  he  was  engaged,  the  law 
protects  him.  He  is  not  liable  to  an  action  for 
a  mere  error  in  judgment.  (Dinsman  v.  Wilkes, 
12  How.,  390,  403.) 

Repeated  disobedience  of  ordets. — By 
the  Articles  for  the  Government  of  the  Navy 
the  commanding  officer  is  authorized  to  cause 
certain  punishments  to  be  infficted  upon  an 
enlisted  man  for  scandalous  conduct  without  a 
court-martial.  Every  successive  disobedience 
of  orders  is  a  fresh  offense  and  subjects  the 
offender  to  additional  punishment.  It  has 
been  settled  in  a  penal  prosecution  that  a  like 
act  when  prohibited,  if  distinctly  repeated  even 
on  the  same  day,  constitutes  a  second  offense 
and  incurs  an  additional  penalty.  (Wilkes  r. 
Dinsman,  7  How.,  89,  128.) 

The  commanding  officer  has  not  only  a  right 
to  cause  corporal  punishment  to  be  inflicted  but 
to  resort  to  any  reasonable  measures  necessary 
to  insure  submission.  He  had,  therefore,  a  right 
to  imprison  the  refractory  party  on  shore,  if 


54641°— 22- 


-64 


1003 


Sec.  1624,  Art.  24. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


done  without  malice.  (Wilkes  v.  Dinsman, 
7  How.,  89;  see  art.  49,  A.  G.  N.,  as  to  prohibited 
punishments.) 

Suppression  of  mutiny. — See  note  to  article 
6,  A.  G.N. 

Commander  Alexander  Slidell  Mackenzie, 
U.  S.  N.,  commanding  the  U.  S.  Brig  Sorners, 
was  tried  by  court-martial  and  acquitted  of  the 
charge  of  murder,  three  specifications,  alleging 
that  he  executed  by  hanging,  "without  form  of 
law,"  Philip  Spencer,  acting  midshipman; 
Samuel  Cromwell,  boatswain's  mate;  and  Elisha 
Small,  seaman,  on  board  the  said  brig  Sorners, 
December  1, 1842.  v(  'ourt-Martial  Rec.  No.  844, 
vol.  46,  1843,  Navy  Dept.;) 

The  opinion  of  the  court  of  inquiry  in  the 
same  case  was  as  follows: 

"The  court  are  therefore  of  opinion:  That,  a 
mutiny  had  been  organized  on  board  the  United 
States  brig  Sorners,  to  murder  the  officers,  and 
take  possession  of  the  brig. 

"That  Midshipman  Philip  Spencer,  Boat- 
swain's Mate  Samuel  Cromwell,  and  Seaman 
Elisha  Small  were  concerned  in,  and  guilty  of, 
such  mutiny. 

"That,  had  not  the  execution  taken  place,  an 
attempt  would  ha^•e  been  made  to  release  the 
prisoners,  murder  the  officers,  and  take  com- 
mand of  the  brig. 

"That  such  attempt,  had  it  been  made  in  the 
night,  or  during  a  squall,  would,  in  the  judg- 
ment of  the  court,  from  the  number  and  charac- 
ter of  the  crew,  the  small  size  of  the  brig,  and 
the  daily  decreasing  physical  strength  of  the 
officers,  occasioned  by  almost  constant  watch- 
ing, and  broken  slumbers,  have  been  successful. 

"That  Commander  Mackenzie,  under  the 
circumstances,  was  not  bound  to  risk  the  safety 
of  his  vessel,  and  jeopard  the  lives  of  the  young 
officers  and  the  loyal  of  his  crew,  in  order  to 
secure  to  the  guilty  the  forms  of  trial,  and  that 
the  immediate  execution  of  the  prisoners  was 
demanded  by  duty,  and  justified  by  necessity. 

"The  court  are  further  of  opinion:  That 
throughout  all  these  painful  occurrences,  so 
well  calculated  to  disturb  the  judgment,  and 
try  the  energj^,  of  the  bravest  and  most  ex- 
perienced officer,  the  conduct  of  Commander 
Mackenzie  and  his  officers  was  prudent,  calm, 
and  firm,  and  that  he,  and  they,  honorably  per- 
formed their  duty  to  the  service  and  their  coun- 
try (Couit-Martial  Rec.  No.  844,  vol.  46,  1843, 
Navy  Dept.) 

Reduction  in  rating.^The  act  Of  March  2, 
1855,  establishing  sunmiary  courts-martial  in 
the  Navy,  did  not  interfere  with  the  power  of 
the  commander  of  a  vessel,  as  it  existed  prior 
to  that  act,  to  reduce  seamen  to  inferior  rate  for 
incompetency.     (10  Op.  Atty.  Gen.,  168.) 

The  Articles  for  the  Government  of  the  Na\'y 
(Apr.  23,  1800,  2  Stat.,  49,  art.  30)  forbade  a 
commanding  officer  who  had  received  any  petty 
officer  or  man  "turned  over  from  any  other 
vessel "  td  rate  him  in  a  lower  or  worse  station 
than  that  in  which  he  formerly  served.  That 
prohibition  placed  a  limit  on  the  authority  of 
commanding  officers  to  punish  their  seamen, 
but  was  a  recognition  by  (  ongress  of  the  general 
discretion  of  the  commander  to  disrate  petty 
officers  and  seamen  not  protected  by  the  legis- 
lative prohibition  referred  to.  (10  Op.  Attv. 
Gen.,  168.) 


A  seaman  on  board  a  vessel  of  the  Navy,  having 
received  his  rating  iinder  a  former  commander 
of  that  vessel,  the  actual  commander,  upon  a 
report  to  him  of  the  man's  incompetency  to 
perform  the  duties  of  a  seaman,  did  not  consider 
himself  authorized  to  disrate  him,  but  repre- 
sented the  case  to  the  department,  and  by  the 
authority  of  the  department  the  man  was  reduced 
from  the  rate  of  seaman  to  that  of  ordinary  sea- 
man. It  was  contended  in  the  latter's  behalf 
that  the  law  creating  summary  courts-martial 
and  giving  them  authority  to  disrate  as  a  punish- 
ment was  intended  to  repeal  and  exclude  any 
other  authority  to  disrate.  The  conclusion  of 
the  Attorney  General  was  as  stated  above.  (10 
Op.  Atty.  Gen.,  168.) 

See  article  30,  A.  G.  N.,  as  to  punishments  by 
summary  courts-martial,  and  article  31,  A.  G. 
N.,  as  to  disrating  for  incompetency. 

Reprimand. — See  note  to  section  417,  Re- 
\'ised  Statutes,  under  "Power  of  Secretar}?-  to 
reprimand  subordinates. ' ' 

A  pri^'ate  reprimand  administered  by  the 
commander  in  chief  of  a  fleet  to  a  naval  officer 
in  accordance  with  the  recommendation  of  a 
court  of  inquiry,  as  a  punishment  for  an  offense 
such  as  neglect  of  duty,  is  no  bar  to  a  subse- 
quent trial  of  such  officer  by  a  general  court- 
martial  for  the  same  offense.  (25  Op.  Attv. 
Gen.,  623.) 

The  fact  that  article  24,  A.  G.  N.,  pro  forma 
recognizes  a  private  reprimand  as  a  "punish- 
ment" does  not  affect  the  conclusion  that  a 
proceeding  before  a  court  of  inquiry  which 
recommended  that  a  private  reprimand  be  ad- 
ministered to  an  officer  by  the  commander  in 
chief  of  the  fleet  did  not  constitute  a  ' '  trial "  and 
did  not  expose  the  officer  to  the  peril  of  punish- 
ment so  as  to  bar  subsequent  trial  of  the  officer 
by  court-martial .  Said  reprimand  was  not  real 
punishment.     (25  Op.  Atty.  Gen.,  623.) 

The  jeopardy  of  the  law  means  a  real  peril, 
originally  of  life  or  limb,  and  always  of  sub- 
stantial punishment  or  penalty.  There  must  be 
a  trial  upon  an  indictment  for  an  offense,  or 
upon  some  equivalent  charge  and  presentment, 
as  by  court-martial,  submitting  a  definite  issue 
and  involving  conviction  or  acquittal.  (25 
Op.  Atty.  Gen.,  623.) 

Disapproval  of  the  conduct  and  censure  by 
the  Secretary  of  the  Navy  of  a  subordinate 
officer  for  misconduct  will  not  prevent  a  court- 
martial  proceeding  upon  the  same  charge.  (28 
Op.  Atty.  Gen.,  622.) 

The  Secretary  of  the  Navy  may,  \\ithin  his 
discretion,  when  he  believes  it  for  the  good  of 
the  service,  send  communications  to  subordi- 
nate officers  which  may  be  in  the  nature  of  a 
reprimand.  This  right  is  necessarily  vested  in 
him  as  the  chief  officer  of  that  department;  but 
such  communications  can  not  be  regarded  in 
the  nature  of  a  punishment  as  defined  in  the 
regulations.  Regardless  of  whether  a  proceed- 
ing under  the  Navy  Regulations  constitutes  a 
jeopardy  -within  the  meaning  of  the  fifth  amend- 
ment to  the  Constitution,  it  is  apparent  that  the 
action  of  the  Secretary  of  the  Navy  in  \\Titing  a 
letter  to  an  officer  censuring  him  for  misconduct 
can  not  be  regarded  as  a  jeopardy,  there  having 
been  nothing  more  than  a  private  investigation 
of  the  matter  by  the  commandant  of  the  navy 
yard,  and  a  report  thereon  to  the  Secretary  of 


1004 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  26. 


the  Navy.  (28  Op.  Atty.  Gen.,  622.  See  note 
to  Constitution,  fifth  amendment;  and  note  to 
article  43,  A.  G.  N.) 

Arrest  not  har  to  subsequent  trial. — A 
plea  iDefore  a  court-martial  of  a  former  arrest  and 
discharge  is  bad ;  a  former  trial  only  is  a  defense. 
A  mere  arrest,  even  in  cases  punishable  in  life 
or  limb,  is  not  considered  as  constituting  the 
jeopardy  intended  by  the  fifth  amendment  to 
the  Constitution.  To  give  the  accused  the 
benefit  of  the  common-law  maxim  from  which 
is  derived  our  constitutional  amendment,  it  is 
necessary  that  a  man  shall  have  been  actually 
acquitted  or  convicted  on  a  former  trial,  and  the 
record  of  this  fact  must  be  produced.  (1  Op. 
Atty.  Gen.,  294.) 

It  is  not  free  from  legal  censure  to  bring  an 
officer  to  trial  by  court-martial  after  the  charge 
against  him  has  been  knowingly  passed  over, 
although  the  officer  in  such  case  can  not  success- 
fully plead  in  bar  of  trial  the  fact  that  he  had 
been  pre\iously  arrested  for  the  same  offense. 
(1  Op.  Atty.  Gen.,  294.) 

A  naval  court-martial  loses  jui'isdiction  to  try 
for  an  offense  committed  by  an  enrolled  mem- 
ber of  the  Naval  Reserve  Force  during  active 
service  in  the  Navy,  by  discharging  the  offender 
from  arrest  ^^■ithout  charges  having  been  pre- 
ferred against  him,  and  by  his  subsequent 
release  from  active  duty.  {JJ.  S.  v.  Warden  or 
Keeper  of  Naval  Prison,  265  Fed.  Rep.,  787; 
see  note  to  preamble  to  section  1624  as  to  juiis- 
diction  over  Naval  Reserve  Force.) 

An  officer  was  placed  under  arrest  on  his 
vessel  for  drunkenness  and  neglect  of  duty. 
Later,  on  the  same  day,  he  was,  by  order  of  the 
rear  admiral,  restored  to  duty  to  await  an 
opportunity  to  investigate  the  case.  Subse- 
quently he  was  placed  under  arrest  for  trial,  and 
served  with  copy  of  charges  and  specifications, 
and  a  court-martial  was  convened.  The  accused 
proceeded  to  trial  without  objection;  subse- 
quently, he  claimed  the  salary  of  his  office  on 


the  ground  that  he  was  illegally  dismissed  by 
sentence  of  said  court,  as  his  first  arrest  was  an 
expiation  of  the  offense  and  a  bar  to  trial  pur- 
suant to  existing  regulations  of  the  Navy:  Held, 
that  his  first  arrest  and  temporary  confinement 
were  not  intended  as  a  punishment,  but  as  a 
reasonable  precaution  for  maintenance  of  good 
order  and  discipline  aboard,  and  did  not  bar 
his  trial,  notwithstanding  the  existing  regula- 
tions which  pro\T-ded  that  the  arrest  and 
restoration  to  duty  of  a  person  in  the  Navy,  for 
an  offense,  shall  be  a  bar  to  further  proceedings 
against  him  for  that  offense.  (Bishop  v.  U.  S., 
197  U.  S.,  334;  38  Ct.  Cls.,  473.) 

See  note  to  article  43,  A.  G.  N.,  as  to  arrest 
for  trial. 

Scandalous  conduct. — See  note  to  article 
8,  A.  G.  N. 

Other  punishments  on  naval  vessels. — 
See  note  to  Constitution,  Article  I,  section  8, 
clause  14,  imder  "IV.  Jui'isdiction  of  courts- 
martial,"  subheading,  "Courts-martial  other 
than  naval  can  not  convene  on  vessels  of  regu- 
lar Navy." 

Under  this  article  it  was  held  that  naval 
mihtia  officers  could  not  impose  pvmishmenta 
on  men  belonging  to  their  organization,  while 
cruising  on  board  a  vessel  of  the  regular  Navy, 
nor  could  naval  militia  officers  convene  Staite 
courts-martial  on  such  vessels.  (File  3973-107, 
Feb.  16,  1915).  Thereafter,  by  act  of  August 
29,  1916  (39  Stat.,  598),  naval  militia  courts- 
martial  were  authorized  to  convene  on  board 
naval  vessels;  said  enactment,  however,  was 
repealed  by  naval  appropriation  act  of  July  1, 
1918  (40  Stat.,  708),  which  latter  act  repealed  all 
laws  relating  to  the  Naval  Militia. 

See  note  to  Constitution,  Article  I,  section  8, 
clause  16,  as  to  authority  of  commanding  officer 
of  a  naval  vessel  over  members  of  the  Naval 
Militia  participating  ^^ith  the  Regular  Navy  in 
cruises  for  the  purpose  of  training  and  instruc- 
tion. 


Art.  25.  [Punishment  by  officer  temporarily  commanding.]  No  officer 
who  may  command  by  accident,  or  in  the  absence  of  the  commandmg  officer,, 
except  when  such  commanding  officer  is  absent  for  a  time  by  leave,  shall  inffict 
any  other  punishment  than  con&iement. — (23  Apr.,  1800,  c.  33,  s.  1,  v.  2,  p. 
49,  art.  30.) 

Art.  26.  [Summary  courts-martial ;  convening  authority.]  Summary  courts- 
martial  may  be  ordered  upon  petty  officers  and  persons  of  inferior  ratmgs,  by 
tlie  commander  of  any  vessel,  or  by  the  commandant  of  any  navy-yard,  naval 
station,  or  marine  barracks  to  which  they  belong,  for  the  trial  of  offenses  whicli 
such  officer  may  deem  deserving  of  greater  punishment  than  such  conmaander 
or  commandant  is  authorized  to  inflict,  but  not  sufficient  to  require  trial  by  a 
general  court-martial. —  (2  Mar.,  1855,  c.  136,  s.  4,  v.  10,  p.  627.  15  July,  1870, 
c.  295,  s.  14,  V.  16,  p.  .334.) 


By  act  of  August  29,  1916  (39  Stat.,  586),  it  was 
provided  that  "summary  courts-martial 
may  be  ordered  upon  enlisted  men  in  the 
naval  ser\'ice  under  his  command  by  the 
commanding  officer  of  any  brigade,  regi- 
ment, or  separate  or  detached  battalion-,  or 
other  separate  or  detached  command,  and, 
when  empowered  by  the  Secretary  of  the 


Navy,  by  the  commanding  officer  or  officer 
in  charge  of  any  command  not  specifically 
mentioned  in  the  foregoing:  Provide}, 
That  when  so  empowered  by  the  Secre- 
tary of  the  Na^'y  to  order  summarv  courts- 
martial,  the  commanding  officer  ol  a  naval 
hospital  or  hospital  ship  shall  be  empow- 
ered to  order  such  courts    * 


*  " 


1005 


Sec.  1624,  Art.  30. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


"Hereafter  all  officers  of  the  Navy  and  Marine 
Corps  who  are  antliorized  to  order  either 
general  or  summary  courts-martial  may 
order  deck  courts  upon  enlisted  men 
under  their  command  *  *  *  when  so 
empowered  by  the  Secretary  of  the  Navy 
to  order  summary  courts-martial,  the  com- 
manding: officer  of  a  naval  hospital  or  hos- 
pital sliip  shall  be  empowered  to  order 
*    *    *     deck  courts    *    *    *     upon    all 


enlisted  men  of  the  naval  service  attached 
thereto,  whether  for  duty  or  as  patients." 
(Act  Aug.  29,  191fi,  39  Stat.,  586.  Deck 
courts  were  created  by  act  Feb.  16,  1909, 
35  Stat.,  621,  amended  by  acts  Aug.  29, 
1916,  39  Stat.,  586,  and  Oct.  6,  1917,  40 
Stat.,  393.) 
See  note  to  article  38,  A.  G.  N.,  as  to  convening 
of  general  courts-martial. 


Department  in  time  of  war  or  emergency 
as  part  of  the  naval  forces  of  the  United 
States.     (Act  Oct.  6,  1917,  40  Stat.,  393.) 
See  note  to  article  39,  A.  G.  N.,  as  to  constitu- 
tion of  general  courts-martial. 


Art.  27.  [Constitution  of  summary  courts-martial.]  A  summary  court- 
martial  shall  consist  of  three  officers  not  below  the  rank  of  ensign,  as  members, 
and  of  a  recorder.  The  commander  of  a  ship  may  order  any  officer  under  his 
command  to  act  as  such  recorder. — (2  Mar.,  1855,  c.  136,  s.  6,  v.  10,  p.  628.) 

Commissioned  officers  of  the  Naval  Reserve 
Force.  Marine  Corps  Reserve,  Coast  Guard, 
Lighthouse  Service,  Coast  and  Geodetic 
Survey,  and  Public  Health  Service  are 
empowered  to  serve  on  naval  courts-mar- 
tial when  actively  serving  under  the  Navy 

Art.  28.  [Oaths  of  members  and  recorder.]  Before  proceeding  to  trial  the 
members  of  a  summary  court-martial  shall  take  the  following  oath  or  affirma- 
tion, which  shall  be  administered  by  the  recorder:  "I,  A  B,  do  swear  (or  affirm) 
that  I  will  well  and  truly  try,  without  prejudice  or  partiaUty,  the  case  now  de- 
pending, according  to  the  evidence  which  shall  be  adduced,  the  laws  for  the 
government  of  the  Navy,  and  my  own  conscience."  After  which  the  recorder 
of  the  court  shall  take  the  following  oath  or  affirmation,  which  shall  be  admin- 
istered by  the  senior  member  of  the  court:  ''I,  A  B,  do  swear  (or  affirm)  that  I 
will  keep  a  true  record  of  the  evidence  which  shall  be  given  before  this  court 
and  of  the  proceedings  thereof." — (2  Mar,  1855,  c.  136,  s.  5,  v.  10,  p.  628.) 

See  note  to  article  40,  A.  G.  N.,  as  to  oaths  of  general  courts-martial. 

Art.  29.  [Testimony  before  summary  courts-martial.]  All  testimony  before 
a  summary  court-martial  shall  be  given  orally,  upon  oath  or  affirmation, 
administered  by  the  senior  member  of  the  court. —  (2  Mar.,  1855,  c.  136,  s.  7, 
V.  10,  p.  628.) 


The  use  of  depositions  before  naval  courts  was 
authorized  by  act  of  February  16,  1909, 
section  16  (35  Stat.,  622). 


See  note  to  article  42,  A.  G.  N.,  as  to  evidence 
before  general  courts-martial. 


Art.  30.  [Punishments  by  summary  courts.]  Summary  courts-martial 
may  sentence  petty  officers  and  persons  of  inferior  ratings  to  any  one  of  the 
following  punishments,  namely: 

First.  Discharge  from  the  service  with  bad  conduct  discharge;  but  the 
sentence  shall  not  be  carried  into  effect  in  a  foreign  country. 

Second.  Solitary  confinement,  not  exceeding  thirty  days,  in  irons,  single 
or  double,  on  bread  and  water,  or  on  diminished  rations. 

Third.  Solitary  confinement  in  irons,  single  or  double,  not  exceeding 
thirty  days. 

Fourth.  Solitaiy  confinement  not  exceeding  thirty  days. 

Fifth.  Confinement  not  exceeding  two  months. 

Sixth.  Reduction  to  next  inferior  rating. 

Seventh.  Deprivation  of  hberty  on  shore  on  foreign  station. 


1006 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  32. 


Eighth.  Extra  poHce  duties,  and  loss  of  pay,  not  to  exceed  three  months, 
may  be  added  to  any  of  the  above-mentioned  punisliments.  (2  Mar.,  1855,  c. 
136,  s.  7,  V.  10,  p.  628.) 


"The  use  of  irons,  single  or  double,  as  a  form  of 

Eunishment  in  the  Navy  of  the  United 
tates  is  hereby  abolished,  except  for  the 
purposes  of  safe  custody  or  -when  part  of 
the  sentence  imposed  by  a  general  court- 
martial."     (Act  May  13,    1908,   35  Stat., 
132.) 
"The  use  of  irons,  single  or  double,  is  hereby 
abolished,  except  for  the  purpose  of  safe 
custody  or  when  part  of  a  sentence  imposed 
by  a  general  court-martial."     (Act  Feb. 
16,  1909,  sec.  8,  35  Stat.,  621.) 
"The  courts  authorized  to  impose  the  punish- 
ments prescribed  by  article  thirty  of  the 
Articles  for  the  Government  of  the  Navy 
may  adjudge  either  a  part  or  the  whole, 
as  may  be  appropriate,  of  any  one  of  the 
punishments  therein  enumerated."     (Act 
Feb.  16,  1909,  .sec.  8,  35  Stat.,  621.) 
Reduction  in  rating. — See  notes  to  articles 
24and31,  A.  G.  N. 

The  law  of  March  2,  1855,  creating  summary 
courts-martial,  included  among  the  punish- 
ments which  they  might  inflict,  "reduction  to 
next  inferior  rating."  The  object  of  that  act 
was  to  provide  for  the  punishment  of  petty 


offenders,  and  the  reduction  in  rating  therein 
mentioned  is  imposed  as  a  penalty.  It  had  no 
application  whatever  to  seamen  who  were  only 
incompetent,  from  physical  or  other  causes,  to 
perform  the  duties  of  their  grades,  but  who  were 
not  offenders.  Such  persons  could  not  be  re- 
duced to  an  inferior  rating  under  the  pro^ision3 
of  said  act,  nor  was  there  any  other  law  provid- 
ing for  their  reduction  by  sentence  of  a  court- 
martial.     (10  Op.  Atty.  Gen.,  168.) 

Courts-martial  sit  for  the  trial  and  punish- 
ment of  crimes  of  greater  or  less  magnitude ;  and 
mere  incompetency  is  not  of  itself  a  crime. 
Their  sentence  of  reduction  to  an  inferior  grade 
is  imposed  as  a  punishment,  but  such  reduction 
by  a  commanding  officer  for  incompetency  is 
not  a  punishment.  A  reduction  in  grade  on 
the  ground  of  incompetency  is  at  worst  a  mis- 
fortune, importing  no  reflection  on  the  character 
of  the  person  reduced,  and  does  not  require  a 
formal  trial.     (10  Op.  Atty.  Gen.,  168.) 

(The  opinion  of  the  Attorney  General  above 
noted  was  rendered  to  the  Secretary  of  the 
Navy,  January  16,  1862.  The  pro\dsion  now 
embodied  in  article  31,  A.  G.  N.,  as  to  disrating 
for  incompetency,  was  enacted  July  17,  1862.) 


Art.  31.  [Disrating  for  incompetency.]  A  summary  court-martial  may 
disrate  any  rated  person  for  incompetency. —  (17  July,  1862,  c.  204,  s.  1,  art. 
10,  V.  12,  p.  603.) 


Disrating  not  a  punishment. — See  note 
to  article  30,  A.  G.  N.,  under  "Reduction  in 
rating";  see  also  note  to  article  24,  A.  G.  N., 
under  "Reduction  in  rating." 

Authority  of  commanding  ofla.cer. — See 
note  to  article  24,  A.  G.  N. 

If  the  appointments  under  which  the  men  are 
serving  are  of  a  permanent  nature,  commanding 
officers  of  the  Navy,  who  did  not  establish  the 
ratings,  have  no  authority  to  disrate  them, 
either  as  punishment  for  offenses  or  for  incom- 
petency. Such  men  may  be  disrated  by 
sentence  of  a  general  or  summary  court-martial 
or  deck  court  as  a  punishment,  or  in  accordance 
■nith  article  31,  A.  G.  N.,  by  summary  court- 
martial  for  incompetency.  If  they  are  serving 
under  acting  appointments,  they  can  be  dis- 
rated by  any  commanding  officer  of  the  Navy 
under  whom  they  may  be  serving,  for  incom- 


petency, but  not  as  punishment  for  an  offense. 
They  may  be  disrated  as  a  punishment  in  the 
same  manner  as  though  holding  permanent  ap- 
pointments. (File  3973-190,  June  4,  1917,  as 
to  authority  of  commanding  officers  of  the  Navy 
to  disrate  members  of  the  National  Naval 
Volunteers  called  into  active  ser\dce  and 
subject  to  the  laws  and  regulations  governing 
the  Navy.) 

Article  24,  A.  G.  N.,  authorizes  commanding 
officers  to  punish  a  rated  man  by  reduction  in 
rank  only  if  the  rating  was  established  by  the 
commanding  officer  who  inflicts  the  punish- 
ment; but  any  commanding  officer  may  disrate 
a  man  holding  xmder  an  acting  appointment, 
for  incompetency,  whether  the  rating  was 
established  by  himself  or  by  another  com- 
manding officer.  (File  7657-249;  see  also  file 
3973-190,  June  4,  1917.) 


Art.  32.  [Execution  of  summary  court  sentence.]  No  sentence  of  a  sum- 
mary court-martial  shall  be  carried  into  execution  until  the  proceedings  and 
sentence  have  been  approved  by  the  officer  ordering  the  court  and  by  the 
commander-in-chief,  or,  in  his  absence,  by  the  senior  officer  present.  And 
no  sentence  of  such  court  which  involves  loss  of  pay  shall  be  carried  into  execu- 
tion until  the  proceedings  and  sentence  have  been  approved  by  the  Secretary 
of  the  Navy.— (2  Mar.,  1855,  c.  136,  s.  8,  v.  10,  p.  628.  2  Mar.,  1867,  c.  174, 
s.  5,  V.  14,  p.  516.) 

"That  the  Secretary  of  the  Na-\y  may  set  aside  order  or  by  that  of  any  officer  of  the  Navy 

the  proceedings  or  remit  or  mitigate,  in  or  Marine  Corps."     (Act  Feb.   16,    1909, 

whole  or  in  part,  the  sentence  imposed  by  sec.  9,  35  Stat.,  621.) 
any  naval  court-martial  convened  by  his 

1007 


Sec.  1624,  Art.  32. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


"That   all   sentences  of  summary  courts-mar- 
tial may  be  carried  into  effect  upon  the 
approval    of    the    senior    officer    present 
*    *    *."     (Act   Feb.    16,    1909,   sec.    17, 
35  Stat.,  623.) 
"No  sentence  of  a  summary  court-martial  shall 
be  carried  into  execution  until  the  pro- 
ceedings and  sentence  have  been  approved 
by  the  officer  ordering  the  court,  or  his 
successor  in  office,  and  by  his  immediate 
smierior  in  command:  Prornkd,  That  if  the 
offi(^r  ordering  the  court,  or  his  successor 
in  office,  be  the  senior  officer  present,  such 
sentence  may  be  carried  into  execution 
upon  his  approval  thereof. ' '     (Act  Aug.  29, 
1916,  39  Stat.,  586.) 
The  Judge  Advocate  General   of  the   Navy 
"shall,  under  the  direction  of  the  Secretary 
of  the  Navy,  receive,   revise,   and  have 
recorded    the   proceedings   of   all    courts- 
martial    *    *    *    in  the  naval  service." 
(Act  June  8,  1880,  21  Stat.,  164.) 
Power  of  the  Secretary  of  the  Navy. — 
The  act  of  March  2,  1867  (embodied  in  art.  32, 
A.  G.  N.),  gave  the  Secretarv  of  the  Navy  power 
to  approve  or  disapprove  that  part  of  any  sen- 
tence of  a  summ  ary  court-martial  which  involved 
loss  of  pay.     The' act  of  Februarv^  16,  1909,  pur- 
ports to  enlarge  his  power  still  further,  l)y  author- 
izinig  him  to  set  aside  the  proceedings,  or  remit  or 
mitigate,  in  whole  or  in  part,  the  sentence  im- 
posed by  any  naval  court-martial.    Under  the 
act  of  1867  his  power  of  re^dew  was  very  limited, 
being  confined  to  sentences  invohdng  loss  of 
pay,  while  under  the  act  of  1909  his  power  is 
extended   to  all   sentences.     (U.    S.    ex   rel, 
Harris  v.   Daniels,   McDonald,   et  al.,   IJ.    S. 
Circuit  Court  of  Appeals,  Second  Circuit,  Jan. 
6, 1922,  279  Fed.  Rep.  844. 

Previously  to  the  act  of  Februaiy  16,  1909, 
sentences  of  summary  courts-martial  under 
section  1624,  Revised' Statutes,  could  not  be 
carried  into  execution,  if  loss  of  pay  was  in- 
volved, until  their  proceedings  in  each  instance 
had  been  approved  by  the  Secretary  of  the 
Navy.^  As  many  courts  were  held  on  ships  at 
long  distances  fi-om  the  United  States,  the  de- 
lay of  months  in  the  execution  of  the  sentence 
imposed  proved  very  vexatious  and  subverted 
the  whole  object  of  a  summary  court,  that  of 
prompt  and  summary  punishment  for  minor 
offenses.  Hence  the  desirability  of  section  17 
of  the  act  of  1909,  allo^nng  the  sentences  to  be 
carried  into  effect  upon  the  approval  of  the 
senior  officer  present  at  the  trial.  After  the 
enactment  of  section  17  of  that  act  the  dis- 
tinction between  sentences  of  summary  courts- 
martial  which  involved  loss  of  pay  and  those 
which  did  not  ceased  to  exist,  so  that  both 
classes  of  sentences  could  be  carried  into  execu- 
tion without  awaiting  the  approval  of  the  Secre- 
tary of  the  Navy.  All  sentences  of  such  courts- 
martial  may  be  carried  into  effect  upon  the 
approval  of  the  senior  officer  present.  (U.  S. 
ex  rel.  Harris  v.  Daniels,  McDonald,  et  al., 
U.  S.  Circuit  Court  of  Appeals,  Second  Circuit, 
Jan.  6,  1922,  279  Fed.  Rep.  844. 
_  There  is  an  apparent  conflict  between  sec- 
tions 9  and  17  of  the  act  approved  February  16, 
1909  (above  quoted);  but  it  is  not  one  in 
reaUty.  In  view  of  section  9,  it  does  not  seem 
that  sentences  imposed  by  any  naval  courts- 


martial  can  be  regarded  as  final  imtil  the 
Secretary  of  the  Navy  has  acted.  The  sen- 
tence of  every  summary  court-martial  by 
section  9  is  made  conditional,  being  sub- 
ject to  the  final  action  of  the  Secretary 
of  the  Navy.  (U.  S.  ex  rel.  Harris  v.  Daniels, 
McDonald,  et  al.,  U.  S.  Circuit  Court  of 
Appeals,  Second  Circuit,  Jan.  6,  1922,  279 
Fed.  Rep.  844. 

The  situation  is  analogous  to  that  of  a  man 
convicted  and  sentenced  to  imprisonment  for 
a  term  of  years.  The  sentence  may  have  been 
carried  into  effect,  and  the  man  actually  im- 
prisoned under  it;  but  if  the  appellate  court 
decides  the  conviction  was  illegal  and  sets  the 
proceedings  aside  because  the  trial  court  had 
no  jurisdiction  to  try  him  on  the  indictment, 
Ms  original  status  is  restored.  (U.  S.  ex  rel. 
Harris  v.  Daniels,  McDonald,  et  al.,  U.  S. 
Circuit  Court  of  Appeals,  Second  Circuit,  Jan. 
6,  1922,  Navy  Dept.  file  No.  26251-25651:13.) 

Under  section  17  of  the  act  of  1909,  the  sen- 
tence may  be  carried  into  effect  upon  the 
approval  of  the  senior  officer  present,  as  therein 
provided.  But  when  so  carried  into  effect, 
if  it  is  thereafter  set  aside  by  the  Secretary  of 
the  Navy,  the  status  of  an  enlisted  man  whose 
discharge  was  only  conditional  is  thereby 
restored  and  continues  as  it  was  before  the 
sentence  was  imposed.  (U.  S.  ex  rel.  Harris  v. 
Daniels,  McDonald,  et  al.,  U.  S.  Circuit  Court 
of  Appeals,  Second  Cii-cuit,  Jan.  6,  1922,  279 
Fed.  Rep.  844. 

Discharge  set  aside  as  illegal.— An  en- 
listed man  was  discharged  from  the  Navy  pur- 
suant to  the  sentence  of  a  summary  court- 
martial  duly  convened  and  approved  by  the 
convening  authority  and  immediate  superior 
in  command;  subsequently,  the  proceedings, 
findings,  and  sentence  were  disappro^'ed  by  the 
Secretary  of  the  Navy  on  the  ground  that  the 
specification  failed  to  state  an  offense,  and  the 
accused  was  ordered  to  return  and  resume  his 
former  status  in  the  Navy,  which  he  did  under 
protest  and  surrendered  his  discharge  to  the 
naval  authorities.  After  performing  duty  for 
several  weeks,  he  left  his  station,  returned  home, 
and  after  an  absence  of  more  than  two  months 
surrendered  himself  to  the  naval  authorities  for 
the  piirpose  of  having  his  status  adjudicated. 
He  was  immediately  placed  in  custody  and  his 
trial  by  general  court-martial  ordered  for  un- 
authorized absence,  copy  of  the  charge  was 
served  upon  him,  and  he  was  placed  under 
arrest  for  trial.  While  awaiting  trial  upon  this 
charge,  he  was  ordered  released  from  naval 
authority  by  habeas  corpus  proceedings;  on 
appeal,  held  that  as  the  Secretary  of  the  Navy 
found  in  this  case  that  the  Naval  summary 
court-martial  which  tried  the  accused  was 
without  jurisdiction  because  he  was  not  legally 
charged  Avith  the  commission  of  an  offense,  and 
set  aside  the  proceedings,  the  sentence  became  a 
nullity;  and  it  follows  that  the  discharge  of  the 
accused  from  the  service  pursuant  to  such  sen- 
tence was  a  nullity  ab  initio.  The  order  of  the 
court  below  directing  his  discharge  from  the 
naval  custody  and  adjudging  that  the  naval 
authorities  are  without  jurisdiction  to  try  him 
for  any  offense  committed  since  the  date  of  his 
supposed  discharge,  reversed.  (U.  S.  ex  rel. 
Harris  v.  Daniels,    McDonald,   et  al.,  U.    S. 


1008 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  34. 


Circuit  Court  of  Appeals,  Second  Circuit,  Jan. 
6,  1922,  279  Fed.  Rep.  844. 

If  the  proceedings  of  the  court-martial  were 
declared  by  competent  authority  to  be  void, 
and  its  sentence  set  aside  as  a  nullity,  on  the 
ground  that  he  had  been  tried  on  a  specification 
which  failed  to  state  an  offense  against  him,  it 
needs  no  argument  to  establish  the  fact  that  his 
status  as  an  enlisted  man  was  not  changed  in 
contemplation  of  law  in  any  particular  by  reason 


of  the  sentence  which  was  imposed.  A  void 
sentence  can  no  more  affect  the  status  of  the 
person  upon  whom  it  is  pronounced  than  a  void 
judgment  can  affect  the  property  against  which 
it  is  rendered.  (U.  S.  ex  rel.  Harris -y.  Daniels, 
McDonald,  et  al.,  U.  S.  Circuit  Court  of  Appeals 
Second  Circuit,  Jan.  6,  1922,  279  Fed.  Rep. 
844,  citing  in  re  Bird,  3  Fed.  Cas.  No.  1428.) 
For  other  cases,  see  note  to  article  53 
A.  G.  N. 


Art.  33.  [Remission  of  summary  court  sentence.]  The  officer  ordering  a 
summary  court-martial  shall  have  power  to  remit,  in  part  or  altogether,  but 
not  to  commute,  the  sentence  of  the  court.  And  it  shall  be  his  duty  either  to 
remit  any  part  or  tlie  whole  of  any  sentence,  the  execution  of  wliich  would,  in 
the  opinion  of  the  surgeon  or  senior  medical  officer  on  board,  given  in  writing, 
produce  serious  injury  to  the  health  of  the  person  sentenced,  or  to  submit  the 
case  again,  without  delay,  to  the  same  or  to  another  summary  court-martial 
which  shall  have  power,  upon  the  testimony  alread}'  taken,  to  remit  the  former 
punishment  and  to  assign  some  other  of  the  authorized  punishments  in  the  place 
thereof.— (2  Mar.,  1855,  c.  136,  s.  8,  v.  10,  p.  628.) 


"  That  the  Secretary  of  the  Navy  may  set  aside 
the  proceedings  or  remit  or  mitigate,  in 
whole  or  in  part,  the  sentence  imposed  by 
any  naA-al  court-martial  con^'ened  by  his 
order  or  by  that  of  any  officer  of  the  Navy 
or  Marine  Corps."  (Act  Feb.  16,  1909, 
sec.  9,  35  Stat.,  621.) 


See  note  to  article  54,  A.  G.  N.,  as  to  sentences 
of  general  courts-martial;  and  see  note 
above,  under  article  32,  A.  G.  N.,  as  to 
construction  of  act  of  February  16,  1909. 


Art.  34.  [Proceedings  and  record  of  summary  court.]  The  proceedings  of 
summary  courts-martial  shall  be  conducted  with  as  much  conciseness  and 
precision  as  may  be  consistent  with  the  ends  of  justice,  and  under  such  forms 
and  rules  as  may  be  prescribed  by  the  Secretary  of  the  Navy,  with  the  approval 
of  the  President,  and  all  such  proceedings  shall  be  transmitted  in  the  usual  mode 
to  the  Navy  Department,  where  they  shall  be  kept  on  file  for  a  period  of  two 
years  from  date  of  trial,  after  which  time  they  may  be  destroyed  in  the  discretion 
of  the  Secretary  of  the  Navy. 


This  article  -was  re  enacted  to  read  as  above 
by  act  of  February  16,  1909,  section  14  (35  Stat. 
622).     As  originally  enacted  it  read  as  follows: 

"Art.  34.  The  pi'oceedings  of  smnmary  courts- 
martial  shall  be  conducted  with  as  much  con- 
ciseness and  precision  as  may  be  consistent  with 
the  ends  of  justice,  and  under  such  forms  and 
rules  as  may  be  prescribed  by  the  Secretary  of 
the  Navy,  with  the  approval  of  the  President; 
and  all  such  proceedings  shall  be  transmitted, 
in  the  usual  mode,  to  the  Navy  Department." — 
(2  Mar.,  1855,  c.  136,  s.  9,  v.  10,  p.  628.) 

The  Judge  Advocate  General  of  the 
Navy  "shall,  under  the  direction  of  the  Secre- 
tary of  the  Navy,  receive,  revise,  and  have  re- 
corded the  proceedings  of  all  courts-martial 
*  *  *  in  the  naval  service."  (Act  June  8, 
1880,  21  Stat.,  164.) 

Proceedings  as  evidence  in  other 
cases. — Where  the  law  requires  that  a  docu- 
ment or  paper  shall  be  kept  on  file  in  one  of  the 
departments  at  Washington,  quaere,  whether  a 


civil  court  of  the  United  States  has  the  right  to 
compel,  by  a  subpoena  duces  tecum,  the  pro- 
duction in  any  part  of  the  United  States  of  any 
such  document.  If  the  department  is  com- 
pelled to  produce  it  in  court  in  New  York  or 
San  Francisco,  it  certainly  is  not  kept  on  the 
files  of  the  department  during  the  time  required 
for  its  production  and  return.  (Cohn  v.  U.  S., 
258  Fed.  Rep.,  355.) 

Documents  used  as  evidence  in  a  naval  court- 
martial,  and  required  by  statute  to  be  trans- 
mitted to  the  Navy  Department  and  there  kept 
on  file  for  two  years,  are  "official  documents" 
while  so  kept,  and  under  section  882,  Re\ased 
Statutes,  authenticated  copies  of  such  docu- 
ments are  admissible  in  evidence  equally  with 
the  originals,  notwithstanding  that  the  originals 
were  on  file  in  the  office  of  the  Judge  Advocate 
General  of  the  Navy,  and  that  no  evidence  was 
introduced  to  show  that  it  was  impossible,  or 
even  cUlficult,  to  produce  the  originals  or  that 
a    request    had    been    made  upon  anyone  to 


1009 


Sec.  1624,  Art.  36. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


produce  them.  Unauthenticated  copies  are 
inadmissible  as  secondary  evidence.  (Cohn  v. 
U.  S.,  258  Fed.  Rep.,  355.) 

Section  882,  Revised  Statutes,  was  intended 
to  apply,  at  least,  to  any  document  or  paper 
which  is  by  law  required  to  be  tiled  and  kept  in 
any  of  the  executive  departments  of  the  Gov- 
ernment; and  is  not  limited  to  documents  or 


papers  written  or  published  by  an  oflicer  in  his 
official  character  or  in  the  performance  of  an 
official  duty.  (Cohn  v.  U.  S.,  258  Fed.  Rep., 
355.) 

For  other  cases,  see  notes  to  articles  42  and 
52,  A.  G.  N.;  and  see  section  882,  Revised 
Statutes,  and  note  thereto. 


Art.  35.  [Same    punishments    by    general    courts-martial.]     Any    punish- 
ment wliich  a  summary  court-martial  is  authorized  to  inflict  may  be  inflicted 
by  a  general  court-martial. —  (2  Mar,,  1855,  c.  136,  s.  10,  v.  10,  p.  628.) 
See  article  63,  A.  G.  N.,  and  note  thereto,  as  to  limitations  of  punishment  by  general  courts-martial 

Art.  36.  [Dismissal  of  officers.]  No  oflicer  shall  be  dismissed  from  the 
naval  service  except  by  the  order  of  the  President  or  by  sentence  of  a  general 
court-martial;  and  in  time  of  peace  no  officer  shaU  be  dismissed  except  in  pur- 
suance of  the  sentence  of  a  general  court-martial  or  in  mitigation  thereof. — 
(13  July,  1866,  c.  176,  s.  5,  v.  14,  p.  92.) 


By  act  of  April  2,  1918  (40  Stat.,  501^,  the 
President  was  authorized  "to  drop  from  the 
rolls  of  the  Navy  or  Marine  Corps  any 
officer  thereof  who  is  absent  from  duty 
without  leave  for  a  period  of  three  months 
or  more,  or  who,  having  been  found  guilty 
by  the  civil  authorities  of  any  offense,  is 
finally  sentenced  to  confinement  in  a  state 
or    Federal    penitentiary:  Provided,    That 
no  officer  so  dropped  shall  be  eligible  for 
reappointment." 
Similar   provision   to  article  36,  A.  G.  N.,  is 
contained  in    section  1229,   Revised   Stat- 
utes; see  that  section  and  historical  note 
thereunder.     See  also  article  37,  below. 
What   officers  included. -Civil   engineers 
appointed  under  section  1413,  Revised  Statutes, 
are  officers  of  the  Navy  within  the  meaning  of 
articles  36  and  37  of  section  1624,    Revised 
Statutes.     (15  Op.  Atty.  Gen.,  165;    see  note 
to  sec.  1413,  R.  S.,  as  to  status  of   civil  engi- 
neers.) 

Officers  holding  temporary  appointments  in 
the  Navy  are  not  either  commissioned  or  war- 
rant officers,  as  is  recognized  by  the  act  of  1862, 
chapter  204  (sec.  1410,  R.  S.);  therefore,  legis- 
lation as  to  the  manner  in  which  such  ollicers 
are  to  be  cashiered,  etc.,  does  not  apply  to  an 
acting  master  appointed  by  the  Secretary  of 
the  Navy.  (15  Op.  Atty.  Gen.,  560.  The 
grade  of  "master"  has  since  been  changed  to 
lieutenant,  junior  grade;  see  note  to  sec.  1362, 
R.  S.) 

In  October,  1861,  S  was  appointed  by  the 
Secretary  of  the  Navy  "an  acting  master  m  the 
Navy,  on  temporary  servdce,"  and  was  dis- 
missed from  the  ser\'ice  by  the  Secretary  in 
March,  1862.  Held,  that  the  dismissal  was 
lawful;  that  in  the  absence  of  legislation  the 
Secretary  had  power  to  determine  the  time  at 
which  an  appointment  expressly  temporary 
should  come  to  an  end.  (15  Op.  Atty.  Gen., 
560.  In  this  case  the  appointment  was  made 
by  the  Secretary  of  the  Navy,  under  the  act 
of  July  24,  1861,  12  Stat.,  272.) 

In  January,  1864,  S  was  appointed  by  the  Sec- 
retary of  the  Navy  "an  acting  gunner  on  tem- 
porary service  "  in  the  Volunteer  Navy,  and  in 


July,  1865,  was  dismissed  from  the  service  by 
the  Secretary.  Held,  that  as  an  acting  gunner 
he  was  liable  to  dismissal  at  the  will  of  the 
Secretary.     (15  Op.  Atty.  Gen.,  564.) 

An  acting  gunner  is  not,  as  such,  even  a 
petty  officer  (citing  sec.  1410,  R.  S.).  Articles 
36  and  37,  A.  G.  N.,  make  provision  as  to  the 
dismissal  of  "officers"  from  the  naval  service; 
therefore  do  not  apply  to  the  case  of  an  acting 
gunner.     (15  Op.  Atty.  Gen.,  564.) 

The  provisions  of  article  36,  A.  G.  N.,  do  not 
extend  to  cadets  at  the  Naval  Academy;  they 
may  accordingly  be  dismissed  from  the  academy 
and  from  the  naval  service  for  misconduct, 
without  trial  by  court-martial.  (15  Op.  Atty. 
Gen.,  634.  The  ruling  in  this  opinion  does  not 
affect  the  question  as  to  the  status  of  cadets 
under  other  laws  relating  to  "any  officer  of  the 
Navy,"  but  has  reference  only  to  the  sense  in 
which  that  word  is  used  in  art.  36,  A.  G.  N. 
See  17  Op.  Atty.  Gen.,  329,  332.) 

The  President  has  the  power  to  dismiss  a 
delinquent  midshipman  from  the  Naval  Acad- 
emy for  violation  of  regulations;  and  that 
power  is  not  restricted  by  the  Revised  Statutes, 
section  1624.     (Weller  v.  U.  S.,  41  Ct.  Cls.,324. ) 

The  statutes  on  the  subject  of  hazing  do  not 
confer  upon  the  Superintendent  of  the  Naval 
Academy,  or  the  Secretary  of  the  Navy,  or 
upon  both  conjointly,  the  power  siunmarily 
to  dismiss  from  the  academy  without  trial  by 
court-martial  a  midshipman  guilty  of  that 
offense.     (25  Op.  Atty.  Gen.,  543.) 

For  other  cases,  see  note  to  section  1512, 
Re\'ised  Statutes,  as  to  the  status  of  midship- 
men; note  to  section  1519,  Re\ised  Statutes, 
as  to  court-martial  of  midshipmen  and  dismissal 
without  court-martial ;  notes  to  articles  39  and 
53,  A.  G.  N.,  as  to  who  are  officers  within  the 
meaning  of  those  articles;  and  note  to  Constitu- 
tion, Article  II,  sec.  2,  clause  2,  under  "VIII. 
Power  of  removal." 

"Time  of  peace"  construed. — The  law 
assumes  to  control  the  President  in  the  matter 
of  dismissing  officers  from  the  military  and 
naval  service  only  in  time  of  peace.  Its  pur- 
pose was,  upon  the  declaration  of  peace,  to  sus- 
pend  the   broad   power  which   he  exercised 


1010 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  36. 


during  the  recent  rebellion  to  dismiss  an  officer 
from  the  ser\dce  whenever  in  his  judgment  the 
public  interests  would  thereby  be  promoted. 
But  peace  was  not  inaugurated  until  August  20, 
1866,  on  which  date  the  President  announced 
by  proclamation  that  "peace,  order,  tranquil- 
lity, and  ci\-il  authority' '  then  existed  "in  and 
throughout  the  whole  of  the  United  States  of 
America"  (14  Stat.,  814).  Since  peace  in  con- 
templation of  law  could  not  exist  while  rebellion 
against  the  National  Government  remained 
unsuppressed,  the  close  of  the  rebellion  and  the 
complete  restoration  of  the  national  authority 
as  announced  by  the  President  and  recognized 
by  Congress  must  be  accepted  as  the  beginning 
of  the  "time  of  peace,"  during  which  the  Presi- 
dent was  deprived  of  the  power  of  summarily 
dismissing  officers  from  the  military  and  naval 
8er^ice.  (McElrath  v.  U.  S.,  102 'U.  S.,  426, 
438.) 

The  Limitation,  "except  in  time  of  peace," 
on  the  power  of  the  President  to  summaiily 
dismiss  a  military  officer  contemplates  not  a 
mere  cessation  of  hostilities,  but  peace  in  the 
complete  sense,  officially  proclaimed.  (Kahn 
V.  Anderson,  255  U.  S.,  1,"  10,  citing  McElrath  v. 
U.  S.,  102  U.  S.,  426,  438.  Compare,  32  Op. 
Atty.  Gen.,  505.) 

Dismissal  by  the  President  with  the 
consent  of  the  Senate. — ^\^lere  the  Presi- 
dent nominated  A  to  the  Senate  to  be  a  first 
lieutenant  in  the  Marine  Corps,  vice  B  "dis- 
missed," and  the  Senate  advised  and  consented 
to  the  appointment  agreeably  to  the  nomination, 
and  A  was  commissioned,  held  that  such 
appointment,  followed  by  a  commission,  oper- 
ated to  discharge  B  from  the  ser\dce  as  effectu- 
ally as  if  he  had  been  dismissed  by  the  direct 
order  of  the  President.  (McElrath  v.  U.  S., 
102  U.  S.,  426.) 

This  law  may  be  construed  as  prohibiting  the 
dismissal  of  officers  of  the  Navy  in  time  of  peace 
under  any  circumstances  or  for  any  cause  or  by 
any  authority  whatever,  except  in  pursuance  of 
the  sentence  of  a  court-martial  to  that  effect  or 
in  commutation  thereof;  or  it  may  be  construed 
as  prohibiting  their  dismissal  by  the  President 
alone,  in  time  of  peace,  A\'ithout  the  sentence 
of  a  court-martial  or  in  commutation  thereof. 
Although  the  question  is  not  free  from  difficulty, 
held,  that  the  latter  is  the  true  construction  of 
the  act.  "^Miether  the  power  of  the  President 
and  Senate  in  this  regard  could  be  constitu- 
tionally subjected  to  restrictions  bv  statute, 
quaere.  (Blake  v.  U.  S.,  103  U.  S.,'227,  235, 
236;  Wallace  v.  U.  S.,  55  Ct.  Cls.,  396,  400.) 

The  President  has  the  power  to  supersede  or 
remove  an  officer  of  the  Army  or  the  Navy  by 
the  appointment,  by  and  with  the  ad\'ice  and 
consent  of  the  Senate,  of  his  successor.  It  was 
not  the  purpose  of  the  fifth  section  of  the  act  of 
Jtdy  13,  1866  (14  Stat.,  92,  now  embodied  in 
sees.  1229  and  1624,  art.  36,  R.  S.),  to  withdraw 
that  power.  (Blake  i).  U.  S.,  103  U.  S.,  227; 
Keyes  v.  U.  S.,  109  U.  S.,  336.) 

It  is  in  substance  and  effect  nothing  more 
than  a  declaration  that  the  power  theretofore 
exercised  by  the  President,  without  the  con- 
currence of  the  Senate,  in  summarily  dismissing 
or  discharging  officers  of  the  Army  or  Navy 
whenever  in  his  judgment  the  interest  of  the 
service  required  it  to  be  done,  shall  not  be 


exercised  in  time  of  peace  except  in  pursuance 
of  the  sentence  of  a  court-martial  or  in  commu- 
tation thereof.  (Blake  v.  U.  S.,  103  U.  S., 
227,  236.) 

The  President  has  power,  by  and  %nth  the 
advice  and  consent  of  the  Senate,  to  displace  an 
officer  in  the  Army  or  Navy  by  the  appointment 
of  another  person  in  his  place.  (Mullani).  U.  S., 
140  U.  S..  240,  affirming  and  follo^nng  Blake 
V.  U.  S.,  103U.  S.,227.) 

It  was  competent  to  the  President,  if  he 
deemed  the  further  continuance  of  G,  a  civil 
engineer,  in  the  service  not  advisable,  to  nomi- 
nate _W  in  his  place;  the  confirmation  and 
appointment  of  W  operated  to  remove  G,  and 
the  fact  that  the  latter  received  no  notice  of  his 
dismissal  is  unimportant.  (16  Op.  Atty.  Gen., 
203.)  y       ^        y  , 

For  other  cases,  see  note  to  Constitution 
article  II,  section  2,  clause  2,  under  •VIII. 
Power  of  removal."  See  also  act  of  March  3, 
1883  (22  Stat..  530),  "for  the  relief  of  Edward 
Bellows." 

niegal  dismissal  revoked. — Certain  cadet 
engineers  who  had  graduated  from  the  Naval 
Academy  were  honorably  discharged  under  an 
erroneous  interpretation  by  the  Navy  Depart- 
ment of  an  act  enacted  August  5,  1882  (22  Stat., 
285).  Such  discharges  were  held  by  the  courts 
to  be  void.  (See  Perkins  v.  U.  S.,  20  Ct.  Cls., 
438,  116  U.  S.,  483;  see  also  U.  S.  v.  Redgrave, 
116  U.  S.,  474;  Harmon  v.  U.  S.,  23  Ct.  Cls., 
132.)  In  the  meantime,  others  had  been  pro- 
moted to  the  vacancies  in  commissioned  grades 
to  which  said  cadet  engineers  would  have  been 
promoted  but  for  their  erroneous  discharge: 
Held,  that  the  promotions  which  were  so  made 
can  not  well  be  distui-bed,  but  that  said  cadet 
engineers,  eiToneously  discharged,  should  be 
recognized  as  in  the  immediate  line  of  promo- 
tion in  their  proper  order  to  fill  the  first  vacan- 
cies that  may  occur  in  the  office  of  assistant 
engineer.  (18  Op.  Atty.  Gen.,  373.  See  also 
note  to  art.  10,  A.  G.  N.,  as  to  implied  resigna- 
tions; and  note  to  art.  53,  A.  G.  N.,  as  to  dis- 
missal of  officer  pursuant  to  sentence  of  a  court- 
martial  which  had  not  been  confirmed  by  the 
President.) 

Power  of  Congress  to  reduce  number  of 
oflB.cers.^ — An  officer  in  the  Army  or  Navy  of 
the  United  States  does  not  hold  his  office  by 
contract  but  at  the  will  of  the  sovereign  power; 
and  it  is  within  the  power  of  Congress  to  provide 
for  the  honorable  discharge  of  officers  not  needed 
in  the  Navy.  The  country  is  not  compelled, 
after  the  conclusion  of  a  war,  to  maintain  the 
entire  official  force  of  the  Army  and  Navy  and 
a  host  of  sinecurists  in  full  pay  so  long  as  they 
shall  live.  (Crenshaw  r.  U.S.,  134  U.S.,  99, 107.) 

Article  36,  A.  G.  N.,  does  not  give  officers  of 
the  Navy  a  contract  right  to  hold  their  offices, 
nor  deprive  Congi'ess  of  the  power  of  enacting 
laws  for  the  honorable  discharge  of  officers. 
One  legislature  can  not  deprive  its  successor  of 
the  power  of  revocation.  That  article  was  not 
intended  to  place  an  oflicer  beyond  the  power 
of  Congress  to  make  any  provision  for  his 
removal,  even  by  the  executive  who  appointed 
him.     (Crenshaw  v.  U.  S.,  134  U.  S.,  99,  107.) 

Oflicers  dropped  from  the  roUs. — See 
act  of  April  2,  1918,  quoted  above  under  this 
article;  and  see  note  to  article  37,  A.  G.  N. 


1011 


Sec.  1624,  Art.  37. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


By  order  of  the  President  an  ofTicer  was 
dro^iped  from  the  rolls  of  the  Army  for  unauthor- 
ized absence.  The  fact  that  tlie  order  may  have 
been  issued  "under  a  misapprehension  of  the 
facts  "  could  not  change  its  legal  e  ffect ;  it  still  re- 
mains an  authorized  act  of  the  Executive,  even 
if  prompted  by  an  erroneous  impression.  The 
law  does  not  provide  for  nor  contemplate  re- 
course to  a  court-martial,  or  other  examination 
to  ascertain  the  facts.  His  decision  as  to  any 
ofTicer  having  been  made,  the  President  is,  as 
to  the  case  of  that  individual,  functus  officio, 
the  statute  giving  him  no  right  to  review,  annul, 
allirni,  or  reverse  his  own  adjudication. 
Certainly  a  succeeding  administration  has  no 
power  of  re\dew.  The  action  of  the  President 
in  such  case  is  not  merely  discretionary,  but 
quasi  judicial.  Action  once  had  is  final. 
(17  Op.  Atty.  Gen.,  13.) 

The  statute  did  not  contemplate  any  formal 
trial  by  the  President,  either  through  an  "indict- 
ment" or  a  court-martial,  before  di'opping  an 
absent  officer.  No  form  of  procedure  was  pre- 
scribed, but  the  means  of  discovering  the  facts 
was  left  to  the  sound  judgment  of  the  President, 
upon  whom  was  conferred  the  power  to  act. 
It  may  well  be  inferred  that  it  was  anticipated 


that  recourse  would  be  had  to  the  records  of  the 
War  Department  to  discover  who  were  thus 
delinquent.     (17  Op.  Atty.  Gen.,  13.) 

The  law  authorizing  the  President  to  drop 
officers  of  the  Army  from  the  rolls  for  unauthor- 
ized absence  was  intended  to  give  to  the 
President  a  fresh  grant  of  power,  to  be  exercised 
at  that  time  independent  of  the  laws  prohibiting 
dismissal  of  officers  without  trial  by  couil- 
martial,  and  making  such  dismissal  void  if 
the  officer  demanded  a  trial  by  court-martial 
and  it  was  not  granted.  (Newton  v.  U.  S.,  18 
Ct.  Cls.,  435.) 

Under  the  law  authorizing  the  President  to 
di"op  from  the  rolls  of  the  Ai-my  an  officer  absent 
from  duty  three  months  without  leave,  the 
jurisdiction  to  find  the  fact  of  desertion  was 
vested  in  the  President  alone,  and  his  decision 
thereon  can  not  be  reviewed  by  the  Court  of 
Claims  in  an  action  by  the  officer  for  the  pay  of 
his  office.  Congress  undoubtedly  supposed 
that  the  Commander  in  Chief  of  the  Anny  was 
capable  of  deciding  this  simple  fact  vvithout 
mistake  or  bias.  Right  or  wrong,  the  court 
must  presume  the  fact  to  be  as  the  President 
determined  it.  (Newton  v.  U.  S.,  18  Ct.  Cls., 
435.) 


Art.  37.  [Dismissed  officer  may  demand  trial.]  Wlien  any  officer,  dismissed 
by  order  of  the  President  since  3d  March,  1865,  makes,  in  writing,  an  apphca- 
tion  for  trial,  settmg  forth,  under  oath  that  he  has  been  wrongfully  dismissed, 
the  President  shall,  as  soon  as  the  necessities  of  the  service  may  permit,  convene 
a  court-martial  to  try  such  officer  on  the  charges  on  which  he  shaU  have  been 
dismissed.  And  if  such  court-martial  shall  not  be  convened  witlxin  six  months 
from  the  presentation  of  such  application  for  trial,  or  if  such  court,  being  con- 
vened, shall  not  award  dismissal  or  death  as  the  punisliment  of  such  officer, 
the  order  of  dismissal  by  the  President  shall  be  void. — (3  Mar.,  1865,  c.  79,  s. 
12,  v.  13,  p.  489.) 


Amendment  to  this  article  was  made  by  act 
of  June  22,  1874,  section  2  (18  Stat.,  192), 
as  follows:  "The  accounting  officers  of  the 
Treasury  be,  and  are  hereby,  prohibited 
from  making  any  allowance  to  any  officer 
of  the  Navy  who  has  been,  or  may  hereafter 
be,  dismissed  from  the  service  and  restored 
to  the  same  under  the  provisions  of  the 
twelfth  section  of  the  act  of  March  thii'd, 
eighteen  hundred  and  sixty-five,  entitled 
'An  Act  to  amend  the  several  acts  hereto- 
fore passed  to  provide  for  the  enrolling  and 
calling  out  the  national  forces,  and  for 
other  purposes,'  [art.  37,  A.  G.  N.]  to  exceed 
more  than  pay  as  on  leave  for  six  months 
from  the  date  of  dismissal,  unless  it  shall 
appear  that  the  officer  demanded  in  writ- 
ing, addressed  to  the  Secretary  of  the  Navy, 
and  continued  to  demand  as  often  as  once 
in  six  months,  a  trial  as  provided  for  in 
said  act." 
Enactment     held     constitutional. — The 
twelfth  section  of  the  act  of  March  3,  1865  (13 
Stat.,  489;  now  art.  37,  A.  G.  N.),  providing  in 
certain  contingencies  for  the  restoration  of  an 
officer  dismissed  from  the  military  or  naval  serv- 
ice, is  constitutional  and  imperative.     It  falls 
within  the  fomteenth  clause  of  section  8  of 


Article  I  of  the  Constitution,  "to  make  rules 
for  the  government  and  regulation  of  the  land 
and  naval  forces."  (12  Op.  Atty.  Gen.,  4.) 
_  It  does  not  seem  to  be  obnoxious  to  the  objec- 
tion that  it  invades  or  frustrates  the  power  of 
the  President  to  dismiss  an  officer.  On  the 
contrary,  it  proceeds  upon  an  admission  that 
the  power  of  dismissal  belongs  to  the  President. 
It  is  simply  a  regulation  which  is  to  follow  dis- 
missal, providing  in  certain  contingencies  for 
the  restoration  of  the  offic^er  to  the  service,  and 
leaving  the  dismissal  in  full  force  if  those  con- 
tingencies do  not  happen.  (12  Op.  Atty.  Gen., 
4.  See  note  to  art.  32,  A.  G.  N.,  as  to  condi- 
tional discharge  under  summary  court-martial 
sentence.) 

Not  limited  to  time  of  peace. — The  terms 
of  the  act  of  March  3,  1865  (13  Stat.,  489;  art. 
37,  A.  G.  N.),  do  not  confine  it  to  time  of  peace. 
Its  terms  are  general.  (Wallace  v.  U.  S.,  55  Ct. 
Cls.,  396,  402.) 

Not  a  limitation  on  power  of  dismissal. — 
It  does  not  express  any  purpose  to  limit  the 
President's  power  to  dismiss.  On  the  contrary, 
it  recognizes  that  power  and  clearly  imports,  by 
its  language,  that  there  shall  have  been  a  dis- 
missal beifore  the  officer  can  invoke  its  pro- 
visions.    It  does  not  speak  of  suspension,  but 


1012 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  37. 


does  mention  dismissal.  It  is  not  to  be  pre- 
sumed, nor  does  the  language  of  the  act  indi- 
cate, that  the  power  which  Congress  had 
"requested"  the  President  to  employ,  to  dis- 
miss officers  from  the  military  service  (act 
July  17,  1862,  12  Stat.,  596),  was  intended  to  be 
taken  away  from  him  or  Limited  in  1865,  the 
war  then  continuing.  (Wallace  v.  U.  S.,  55 
Ct.  Cls.,  396,  402.) 

If  it  be  said  that  the  language  of  the  act, 
though  specific  in  its  reference,  does  not  imply 
that  the  officer  is  or  can  be  dismissed  by  the 
President's  order,  but  means  that  the  order  has 
the  effect  of  only  suspending  him  from  duty, 
then  the  act  provides  no  method  of  determining 
the  status  of  the  officer  if  he  fails  to  demand  a 
trial;  nor  does  it  provide,  if  a  court-martial  be 
convened,  for  any  execution  of  its  award. 
(Wallace  v.  U.  S.,  55  Ct.  Cls.,  396,  404.) 

Meaning  of  law  obscure. — The  language  is 
not  aptly  chosen,  and  the  meaning  to  be 
ascribed  to  it  is  obscure.  (Wallace  v.  U.  S., 
55Ct.  Cls.,396,  403.) 

WTiether  the  purpose  of  the  law  is  fiilly  met 
by  a  court-martial  or  some  other  body,  author- 
ized by  order  of  the  Presideirt,  whose  findings 
can  go  to  the  officer's  record  or  make  him 
eligible  to  reappointment,  or  whether  a  broader 
meaning  should  be  accorded  to  it,  not  decided. 
(Wallace  v.  U.  S.,  55  Ct.  Cls.,  396,  404.) 

Restoration  requires  new  appoint- 
ment.— If  it  be  assumed  that  it  was  not  its  in- 
tention to  limit  the  power  of  dismissal  (and  its 
terms  certainly  import  that  it  treats  the  dismis- 
sal as  a  fact),  then  the  declaration  that  the  order 
of  dismissal  shall  be  void,  because  of  something 
subsequently  occurring,  could  not  be  effective 
to  restore  the  officer  to  his  office.  Let  it  once 
be  admitted  that  the  officer  was  dismissed  from 
the  service,  and  it  must  follow  that  the  effect 
of  the  order  dismissing  him  was  to  sever  his 
relations  Math  the  Army.  The  vacancy  so 
created  could  be  filled  only  by  a  new  and  origi- 
nal appointment,  to  which,  by  the  Constitution, 
the  advice  and  consent  of  the  Senate  is  neces- 
sary. (Wallace  ?;.  U.  S.,  55  Ct.  Cls.,  396,  403, 
citing  U.  S.  V.  Corson,  114  U.  S.,  619,  622.) 

Where  a  person  has  ceased  to  be  an  officer  of 
the  Army,  he  could  not  again  become  one  ex- 
cept upon  a  new  appointment,  by  and  with  the 
ad\ice  and  consent  of  the  Senate.  (Blake  v. 
U.  S,,  103  U.  S.,  227,  237,  citing  Mimmack  v. 
U.  S.,  97  U.  S.,  426.) 

The  act  of  June  22,  1874,  section  2  (quoted 
above,  under  this  article),  contains  a  reference 
to  the  act  of  March  3,  1865  (now  art.  37,  A.  G, 
N.),  but  relates  to  the  case  of  an  officer  of  the 
Navy  dismissed  from  the  service  and  "restored" 
to  the  same.  It  does  not  appear  how  the  resto- 
ration took  place,  and  from  the  whole  section  it 
appears  that  the  officer  is  not  restored  to  office. 
(Wallace  v.  U.  S.,  55  Ct.  Cls.,  396,  401.) 

It  can  not  be  seriously  questioned  that  if  a 
vacancy  in  his  office  M'as  created  by  an  officer's 
dismissal,  it  could  only  be  filled  by  a  new 
appointment  made  by  the  Executive,  with  the 
consent  of  the  Senate.  It  could  not  be  filled  by 
legislative  enactment.  (Wallace  v.  U.  S.,  55 
Ct.  Cls.,  396,  399,  citing  Wood's  Case,  107  U.  S., 
414,  15  Ct.  Cls.,  151;  Minunack  Case,  97  U.  S., 
426,  437;  Corson  Case,  114  U.  S.,  619,  622.) 


See  note  to  Constitution,  Article  I,  section  7, 
clause  2,  under  "Veto  of  bill  authorizing 
restoration  of  dismissed  officer." 

Execution  of  court-martial  sentence.— 
While  the  language  of  the  act  justifies  the  con- 
clusion that  the  power  of  dismissing  an  ofiicer 
was  not  taken  away,  his  reinstatement  is  not 
left  to  stand  upon  the  action  of  a  court-martial, 
because  the  order  of  dismissal,  it  is  declared, 
shall  be  void  if  a  court-martial  be  not  convened. 
Nor  does  the  act  contemplate  any  execution  of 
a  sentence  of  a  court-martial,  if  convened.  It 
declares  that  the  order  of  dismissal  "shall  be 
void  "  if  the  coiu-t-martial  does  not  award  dis- 
missal or  death,  but  implies  that  the  President's 
order  shall  stand  if  the  court-martial's  sentence 
should  call  for  severer  punishment.  In  other 
words,  the  effect  upon  the  order  of  dismissal  is 
the  same,  whether  the  court-martial  be  not  con- 
vened or,  being  convened,  award  a  different 
punishment  than  mere  dismissal.  (Wallace  v. 
U.  S.,  55  Ct.  Cls.,396,  403.) 

Article  prospective  only. — -The  phrase  in 
section  1230,  Re\'ised  Statutes  (corresponding 
to  art.  37,  A.  G.  N.),  "any  officer  dismissed,"  is 
prospective  only  in  its  meaning,  and  an  officer 
dismissed  without  court-martial  in  1863,  by 
order  of  the  President,  held  not  entitled  to  a 
trial  upon  his  application  therefor  in  1878. 
(16  Op.  Atty.  Gen.,  599.) 

Time  for  making  application  for  trial.— 
Though  no  time  is  limited  in  the  act  for  making 
the  application  for  a  court-martial,  the  general 
rule  of  law  would  require  the  claim  to  be 
made  within  a  reasonable  time.  It  is  not 
reasonable  to  wait  until  the  statute  of  limita- 
tions has  run  against  the  offense,  witnesses 
have  disappeared,  and  memory  failed;  or  until 
we  may  naturally  expect  these  things  to  have 
occurred.     (17  Op.  Atty.  Gen.,  13,  20.) 

When  an  officer  of  the  Army  claims  that  he 
has  been  illegally  dismissed  or  dropped  from 
the  rolls,  and  seeks  the  benefit  of  section  1230, 
Re\'ised  Statutes  (corresponding  to  art.  37, 
A.  G.  N.),  he  must  make  his  application  there- 
under for  trial  by  court-martial  \vithin  a  reason- 
able time  after  dismissal,  or  his  acquiescence 
will  be  presumed.  Long  delay,  by  changes, 
promotions,  and  appointments,  may  work  great 
confusion  in  the  Army  Register  and  great  injury 
to  many  officers.  Witnesses  disappear,  and  facts 
are  forgotten.  A  delay  of  nine  years  in  asking 
for  a  trial  was  unreasonable,  and  the  officer  in 
such  case  must  be  presumed  to  have  acquiesced 
in  the  order  of  the  President.  (Newton  v. 
U.  S.,  18  Ct.  Cls.,  435.) 

Ofla.cer  dropped  from  the  roUs. — The  act 
of  March  3,  1865,  section  12  fnow  art.  37, 
A.  G.  N.),  was  passed  while  the  war  was  fla- 
grant, and  while  the  President  had  authority 
under  the  act  of  July  17,  1862,  section  17  (12 
Stat.,  596),  "to  dismiss  and  discharge  from  the 
military  service,  either  in  the  Army,  Navy, 
Marine  Corps,  or  volunteer  force,  in  the  United 
States  service,  any  officer  for  any  cause  which, 
in  his  judgment,  either  renders  such  officer 
unsuitable  for,  or  whose  dismission  would  pro- 
mote, the  public  service."  Neither  said  act  of 
March  3,  1865,  nor  that  of  July  13,  1866,  section 
5  (now  art.  36,  A.  G.  N.),  applies  to  cases  ex- 
pressly and  specifically  pro\ided  for  by  subse- 


1013 


Sec.  1624,  Art.  38. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


quent  legislation  authorizing  the  President  to 
drop  from  the  rolls  oliicers  absent  from  duty 
%\-ilhout  leave  for  three  months.  (17  Op.  Atty. 
Gen.,  13,  19;  see  note  to  art.  36,  A.  G.  N.) 

Officer  superseded  by  appointment  of 
successor. — Where  an  officer  was  dismissed 
by  the  Tresiflent  wdthout  trial,  and  his  successor 
appointed,  by  and  wi^h  the  advice  and  consent 
of  the  Senate,  the  officer  can  not  thereafter 
claim  the  pay  of  his  office  on  the  ground  that  the 
President  failed  to  grant  his  request  for  trial  by 
court-martial,  except,  possibly,  for  the  short 
period  elapsing  between  the  date  of  the  Presi- 
dent's order  of  dismissal  and  the  date  of  the 
new  appointment.  (Wallace  v.  U.  S.,  55  Ct. 
(Is.,  39(), -101.) 

Pay  of  officer  dismissed  without  trial. — 
Since  the  restoration  of  an  officer  who  has  been 
lavvfuUy  dismissed  from  his  office  requires  a  new 
appointment,  it  would  seem  that  the  act  (em- 
bodied in  art.  37,  A.  G.  N.)  does  not  in  any 
event  affect  the  office  that  was  held,  or  entitle 
him  to  its  emoluments.  (Wallace  v.  U.  S.,  55 
Ct.  Cls.j  396,  404.) 

A  retired  naval  officer  was  dismissed  from 
the  Navy  by  order  of  the  President  on  Decem- 
ber 30,  1865.  In  May,  1876,  upon  his  applica- 
tion for  trial  bv  court-martial,  made  under  sec- 
tion 12  of  the  act  of  March  3.  1865  (art.  37,  A. 


G.  N.),  a  court  was  awarded  which  in  June, 
1876,  pronounced  him  innocent  of  every  charge 
and  specilication,  and  the  dismissal  being 
thereby  annulled  he  was  ordered,  June  5,  1876, 
to  be  restorr-d  to  the  retired  list.  Between  the 
date  of  his  dismissal  and  the  date  of  his  restora- 
tion he  had  not  demanded  in  wiiting  from  the 
Secretary  of  the  Navy,  as  often  as  once  in  six 
months,  a  trial;  but  pay  was  claimed  by  him 
for  that  period.  Held,  that  the  right  of  the 
claimant  to  pay  is  governed  by  section  2  of  the 
act  of  June  22,  1874,  chapter  392  (quoted  above 
under  this  article),  under  the  proxisions  of 
which  he  is  not  entitled  to  more  than  "pay  as 
on  leave  for  six  months  from  the  date  of  dis- 
missal." It  was  competent  to  Congress  to 
modify,  in  the  matter  of  pay,  the  effect  of  a 
restoration  under  the  act  of  1865.  (15  Op. 
Atty.  Gen.,  569.) 

Similar  law  for  Army  repealed. — The 
right  of  the  President  to  dismiss  an  officer  of  the 
Army  in  time  of  war,  in  so  far  as  it  may  have 
been  limited  by  section  1230,  Revised  Statutes 
(corresponding  to  art.  37,  A.  G.  N.),  is  now 
unimpaii-ed,  as  the  latter  section  has  been 
superseded  by  the  articles  of  war  enacted 
August  29,  1916  (39  Stat.,  651,  669).  (WaUace 
V.  U.  S.,  55  Ct.  Cls.,  396.) 


Art.  38.  [General    courts-martial;  convening  authority.      Superseded.] 


This  article  provided  as  follows: 

"Art.  38.  General  courts-martial  may  be 
convened  by  the  President,  the  Secretaiy  of 
the  Navy,  or  the  commander-in-chief  of  a  fleet 
or  squadron;  but  no  commander  of  a  fleet  or 
squadron  in  the  waters  of  the  United  States 
shall  convene  such  com't  without  express 
authority  from  the  President."— (17  July,  1862, 
c.  204,  s.  1,  art.  11,  v.  12,  p.  603.) 

It  was  superseded  by  act  of  February  16, 
1909,  section  10  (35  Stat.,  621),  as  follows: 
"That  general  courts-martial  may  be  convened 
by  the  President,  by  the  Secretary  of  the 
Navy,  by  the  commander  in  chief  of  a  fleet  or 
squadron,  and  by  the  commanding  officer  of 
any  naval  station  beyond  the  continental 
liniits  of  the  United  States." 

Further  amendment  was  made  by  act  of 
August  29,  1916  (39  Stat.,  586),  which  provided 
as  follows:  "When  empowered  by  the  Secretary 
of  the  Navy,  general  courts- martial  may  be 
convened  by  the  commanding  officer  of  a  squad- 
ron, of  a  division,  of  a  flotilla,  or  of  a  larger  naval 
force  afloat,  and  of  a  brigade  or  larger  force  of 
the  naval  service  on  shore  beyond  the  conti- 
nental limits  of  the  United  States:  Provided, 
That  in  time  of  war,  if  then  so  empowered  by 
the  Secretary  of  the  Navy,  general  couits- 
martial  may  be  convened  by  the  commandant 
of  any  navy  yard  or  naval  station,  and  by  the 
commanding  officer  of  a  brigade  or  larger  force 
of  the  Navy  or  Marine  Corps  on  shore  not 
attached  to  a  navy  yard  or  naval  station." 

The  act  last  cited  further  provided  that 
"when  a  force  of  marines  is  embarked  on  a 
naval  vessel,  or  vessels,  as  a  separate  organiza- 
tion, not  a  part  of  the  authorized  complement 
thereof,  the  authority  and  powers  of  the  officers 
of    such    separate    organization    of    marines 


shall    be    the   same   as  though  such    organi- 


zation were  serving  at  a  navy  yard  on  shore, 
but  nothing  herein  shall  be  construed  as 
impairing  the  paramount  authority  of  the  com- 
manding officer  of  any  naval  vessel  over  the 
vessel  under  this  command  and  all  persons 
embarked  thereon." 

It  was  also  provided  by  the  act  last  cited  that 
"all  officers  of  the  Navy  and  Marine  Corps 
who  are  authorized  to  order  either  general  or 
summary  courts-martial  may  order  deck 
courts  upon  enlisted  men  under  their  com- 
mand, and  shall  have  the  same  authority  to  in- 
ffict  minor  punishments  as  is  conferred  by  law 
upon  the  commander  of  a  naval  vessel."  (See 
art.  24,  A.  G.  N.,  as  to  punishments  by  com- 
manding officers;  and  see  act  Feb.  16,  1909, 
35  Stat.,  621,  as  to  deck  courts.) 

Courts-raartial  for  trial  of  midship- 
men.— See  laws  and  decisions  noted  under 
section  1519,  Revised  Statutes. 

Statutory  authority  necessary  to  con- 
vene courts. — It  belongs  exclusively  to 
Congress  to  ordain  or  provide  for  courts-martial, 
to  define  their  jurisdiction,  to  make  their  sen- 
tences final  and  conclusive  or  subject  to  some 
revisory  power,  to  designate  by  whom  they 
shall  be  convened  and  by  whom  their  sentences 
shall  be  revised  or  confirmed,  and  generally  to 
make  such  provision  concerning  them  as  they 
deem  proper.  It  follows  from  the  exclusive 
power  of  Congress  over  the  subject  that  no  one 
can  have  any  authority,  either  to  convene  a 
court-martial  or  to  affii'm  or  disaffirm  its 
decision,  unless  it  can  be  shown  that  such 
authority  has  been  delegated  by  Congress. 
(5  Op.  Atty.  Gen.,  508.) 

The  objection  that  the  officer  who  convened 
the  court  was  not  empowered  by  the  President 
to  do  so,  as  required  by  the  statute  then  in  force, 
if  well  taken,  is  jurisdictional.     (U.  S.  v.  Smith, 


1014 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  39. 


197  U.  S.,  386,  392.    See  note  to  art.  53,  A.  G.  N. 
as  to  effect  of  jurisdictional  defects.) 

Where  an  officer  in  1865  was  sentenced  by 
court-martial,  inter  aha,  to  be  dismissed  from 
the  service,  and  the  sentence  was  approved 
and  executed  by  order  of  the  commanding 
general  by  whom  the  court  was  convened, 
held  (in  1882)  that  the  court  was  illegally  con- 
stituted, and  the  findings  and  sentence  there- 
fore null  and  void,  for  the  reason  that  the  con- 
vening authority  had  no  power  to  appoint  said 
court  if  he  were  disquahfied  by  the  fact  that  he 
was  himself  the  "accuser  or  prosecutor"  who 
was  forbidden  by  the  articles  of  war  to  convene 
a  court  in  such  case.  {11  Op.  Atty.  Gen.,  436. 
See  note  to  art.  39,  A.  G.  N.,  as  to  courts 
illegally  constituted;  see  note  to  art  53,  A.  G. 
N.,  as  to  jurisdictional  defects;  and  see  note  to 
art.  10,  A.  G.  N.,  as  lo  acqmescence  in  dis- 
missal.) 

President's  power  not  dependent  on 
statute. — It  is  within  the  power  of  the  Presi- 
dent, as  Commander  in  Chief,  to  convene  _a 
general  court-martial  even  in  cases  where  he  is 
not  expressly  authorized  to  do  so  by  statute. 
(Swaim^;.U.  S.,  165U.  S.,  553,  556.) 

As  Cormnander  in  Chief  the  President  is 
authorized  to  give  orders  to  his  subordinates, 
and  the  convening  of  a  court-martial  is  simply 
the  giving  of  an  order  to  certain  officers  to 
assemble  as  a  court,  and  when  so  assembled  to 
exercise  certain  powers  conferred  upon  them 
by  the  articles  of  war.  (Swaim  v.  U.  S.,  165 
U.  S.,  553,  556,  citing  Runkle  -v.  U.  S.,  19  Ct. 
Cls.,  396,  409.  See  15  Op.  Atty.  Gen.,  297-303, 
for  complete  note  on  this  subject.) 

Evidence  of  convening  authority's 
power. — A  recital  in  the  precept  forming  part 
of  the  record  of  a  naval  court-martial  that  it  was 
convened  by  virtue  of  express  authority  vested 
in  the  officer  convening  the  same  by  the  Presi- 
dent of  the  United  States  is  sufficient  evidence 
of  such  authority  in  habeas  corpus  proceedings. 
(In  re  Grain,  84  Fed.  Rep.,  788.) 

The  designation  of  an  officer  in  the  proceed- 
ings of  a  naval  court-martial  as  "Cormnander 
in  Chief,  U.  S.  Naval  Forces,  North  Atlantic 
Station,"  raises  the  presumption,  under  the 
Navy  Regulations,  that  he  was  in  command  of 
a  fleet  or  squadron  and  was  therefore  a  proper 
officer  to  convene  the  coiirt.  (In  re  Cratu, 
84  Fed.  Rep.,  788.) 

Under  the  law  authorizing  certain  officers  of 
the  Army  to  convene  courts-martial  when 
empowered  by  the  President,  held  that  a  general 
order  of  the  President  lodging  this  power  in  the 
commanders  of  designated  military  camps  is 
judicially  noticed  as  part  of  tha  law  of  the  land, 
and  the  legality  of  a  court-martial  estabhshed 
under  it  is  not  affected  by  omission  to  refer  to  it 
the    order    conveninsr    the    court-martial. 


in 


See  note  to  article  52.  A.  G.  N..  under 
"Omission  of  record  to  show  jmisdictional 
facts." 

Changes  in  convening  order. — The 
original  order  directed  the  comt  to  convene  on 
board  the  U.  S.S.  ifaine  at  10  a.  m.,  on  Monday, 
January  11,  1897,  or  as  soon  thereafter  as  prac- 
ticable; subsequently,  on  Januaty  22,  the  con- 
vening authority  issued  a  second  order  directing 
that  the  court  convene  on  board  the  U.  S.  S. 
Montgoifnery  as  soon  as  practicable  after  her 
arrival  at  Hampton  Roads.  The  court  met  on 
January  25,  1897.  We  are  unable  to  discover 
any  illegality  or  anything  that  was  prejudicial 
to  the  accused  in  changing  the  date  of  trial. 
( In  re  Crain,  84  Fed .  Rep . ,  789 ;  see  notes  to  arts. 
39, 46,  and  47,  as  to  personnel  of  courts-martial.) 

Convening  authority  outside  his  com- 
mand.— In  the  absence  of  legislation  or  of 
orders  from  competent  authority  to  the  con- 
trary, personal  presence  within  the  territorial 
limits  of  his  command  is  not  essential  to  the 
vaUdity  of  an  order  given  by  an  officer  appoint- 
ing a  court-martial  within  such  limits.  He 
may  appoint  general  courts-martial  and  act 
upon  the  record  of  proceedings  of  the  same 
when  outside  the  territorial  limits  of  his  com- 
mand. Whether  there  may  be  exceptions  to 
the  foregoing,  growing  out  of  special  circum- 
stances attending  absence,  can  be  best  deter- 
mined when  those  circumstances  arise.  The 
ground  of  this  opinion  is  that  there  is  at  present 
nothing  else  to  indicate  the  will  of  the  President 
or  other  superior  authority  that  the  functions 
of  commanding  officers  should  be  so  hmited. 
(16  Op.  Atty.  Gen.,  678.) 

When  courts  convened. — This  power  may 
be  exercised  on  information  received  by  the 
officer  invested  with  it  from  his  own  sense  of 
official  duty,  or  on  the  application  of  other 
persons  accompanied  by  charges  which  such 
officer  may  deem  sufficient  to  require  a  trial. 
(4  Op.  Atty.  Gen.,  410.) 

General  courts-martial  have  been  convened 
by  the  Secretary  of  the  Navy  upon  resolution 
of  the  House  of  Representatives  requesting  the 
trial  of  designated  officers.  (See,  e.  g.,  G.  O. 
156,  May  24,  1870,  pubhshing  case  of  Com- 
mander John  H.  Upshur,  U.  S.  N.) 

♦'Waters  of  the  United  States"  con- 
strued.— The  provision  in  article  38  of  section 
1624,  Re^ised  Statutes,  that  no  commander  of 
a  fleet  or  squadron  "in  the  waters  of  the  United 
States"  shall  convene  a  general  court-martial 
without  express  authority  from  the  President, 
was  enacted  in  1862,  and  will  be  construed  as 
intending  to  apply  to  waters  witliin  the  con- 
tinental Umits  of  the  United  States,  and  not  to 
waters  in  the  territory  beyond  seas  (Pliilippine 
Islands)  acquired  since  the  passage  of  that  act, 
and  the  acquisition  whereof  was  not  contem- 
plated at  that  time.  (U.  S.  v.  Smith,  197  U.  S., 
386.) 


(Givens  v.   Zerbst,   255   U.   S.,    11,   affirming 
ex  parte  Givins,  262  Fed.  Rep.,  702.:) 

Art.  39.  [General  courts;  constitution  of.]  A  general  court-martial  shall 
consist  of  not  more  than  thirteen  nor  less  than  five  commissioned  officers  as 
members;  and  as  many  officers,  not  exceeding  tliirteen,  as  can  be  convened 
without  injury  to  the  service,  shall  be  summoned  on  every  such  court.  But  in 
no  case,  where  it  can  be  avoided  without  injury  to  the  service,  shall  more  than 


1015 


Sec.  1624,  Art.  39. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


one-half,  exclusive  of  the  president,  be  junior  to  the  officer  to  be  tried.  The 
senior  officer  shall  alwa\^s  preside  and  the  others  shall  take  place  accorduig  to 
tlieir  rank.— (17  July,  1862,  c.  204,  s.  1,  art.  11,  v.  12,  p.  603.  Wise  v.  Withers, 
3  Cr.,  337.     Dynes  v.  Hoover,  20  How.,  81,  84.) 


Commissioned  officers  of  the  Naval  Resen'e 
Force,  ^Marine  Corps  Reser\-e,  Coast  Guard, 
Lighthouse  SerAace,   Coast  and  Geodetic 
Survey,   and   Public  Health  Service  are 
empowered  to  serve  on  naval  courts-martial 
when  actively  serving  under  the   Navy 
Department  in  time  of  war  or  emergency  as 
part  of  the   naA'al   forces   of  the  United 
States.    (Act  Oct.  6,  1917,  40  Stat.,  393.) 
Rank  and  precedence  of  officers  associated  to- 
gether on  duty:  See  sections  1485, 1486,  and 
1489,  ReAised  Statutes. 
Number  of  members. — The  execution  of 
a  sentence  of  death  is  murder  unless  the  court 
pronouncing  it  consisted  of  13  commissioned 
officers,  where  that  number  could  have  been 
convened  without  manifest  injury  to  the  serv- 
ice.    (1  Op.  Atty.  Gen.,  296.) 

A  court-martial  which  consisted  of  five  mem- 
bers only  was  not  a  legal  court  if  13  could  have 
been  convened  without  manifest  injury  to  the 
ser^'ice.  The  language  of  the  law  does  not  pro- 
\-ide  that  the  court  shall  consist  of  13  members 
where  that  number  can  be  "conveniently" 
convened ;  but  where  they  can  be  convened  at 
all,  not  only  without  probable  injury  but  with- 
out "manifest"  injury  to  the  service.  (1  Op. 
Atty.  Gen.,  296,  construing  Army  law.) 

It  is  difficult  to  conceive  an  emergency  in 
time  of  peace  so  pressing  as  to  disable  the  gen- 
eral officer  who  orders  the  court  from  convening 
13  commissioned  officers  on  a  trial  of  life  and 
death,  "without  manifest  injury  to  the  serv- 
ice."    (1  Op.  Atty.  Gen.,  296.) 

Suggested,  that  in  every  case  of  life  and  death, 
at  least,  the  President  ought  to  be  satisfied  of 
the  manifest  injurj^  which  the  servdce  would 
have  sustained  in  convening  a  court  of  13  before 
he  gives  his  sanction  to  a  sentence  of  death  by  a 
smaller  number.     (1  Op.  Atty.  Gen.,  296.) 

Although  naval  courts-martial  shall  have 
been  organized  with  five  members  only,  under 
the  orders  appointing  them,  their  sentences  are 
not  invalid  for  that  reason.  Although  the 
Na\'y  article,  reading,  "without  injury  to  the 
ser\-ice,"  is  not  in  the  same  words  as  the  article 
of  war,  they  contain  substantially  the  same 
provisions  in  relation  to  general  courts-martial ; 
and  the  discretion  vested  in  the  officer  appoint- 
ing the  court  to  regulate  the  number  by  the 
exigencies  of  the  public  serv-ice  is  ob^dously 
of  the  same  character  in  both  cases.  The 
Supreme  Court  have  declared  that  the  language 
used  in  the  article  of  war  is  merely  directory 
to  the  officer  appointing  the  court,  and  his 
decision  as  to  whether  that  number  can  be 
couA'ened  without  manifest  injury  to  the  serv- 
ice, being  in  a  matter  submitted  to  his  sound 
discretion,  must  be  conclusive.  The  discre- 
tion vested  in  the  officer  appointing  a  naval 
com"t-martial,  being  of  the  same  character,  his 
decision  must  be  equally  conclusive.  (2  Op. 
Atty.  Gen.,  534,  citing  Martin  v.  !Mott,  12 
Wheat.,  34,  35.) 

Objection  to  a  naval  court-martial,  because 
consisting  of  only  nine  members,  must  be  taken 


during  the  trial  as  only  involving  the  question 
of  fact  whether  a  greater  number  of  officers 
could  have  been  detailed  without  injury  to 
the  service,  and  not  ])eing  a  ground  of  nullity. 
(6  Op.  Atty.  Gen.,  369.) 

This  objection  is  matter,  not  of  nullity  in  the 
face  of  the  record  but  of  possible  error  merely, 
depending  on  a  question  of  fact,  viz,  what 
nimiber  of  officers  could  have  been  summoned 
"Mthout  injury  to  the  sendee"?  That  ques- 
tion of  fact  was  required  to  be  raised  at  the 
time,  in  order  that  the  court  or  the  President 
of  the  United  States  might  judge  and  decide 
thereon,  as  they  or  he  had  the  power  to  do.  If 
raised  at  the  time,  the  decision  of  the  court, 
or  certainly  of  the  President  in  approAdng  the 
sentence,  would  have  been  final  and  con- 
clusive on  the  point.  (6  Op.  Atty.  Gen.,  369; 
see  note  to  art.  53,  A.  G.  N.,  as  to  irregularities 
and  fatal  defects.) 

The  number  of  persons  detailed  to  constitute 
a  court-martial,  pro\'ided  it  do  not  fall  below 
the  minimum  number  of  five  prescribed  by 
the  statute,  is  a  matter  of  discretion  \vithin  the 
lawful  authority  of  the  officers  appointing  the 
court.     (6  Op.  Atty.  Gen.,  506.) 

Article  39,  A.  G.  N.,  which  requires  that  as 
many  officers  not  exceeding  13  as  can  be  con- 
vened without  injury  to  the  service  shall  be 
summoned  on  every  general  court-martial  was 
fully  complied  with  in  this  case.  Admiral 
Bimce  in  his  letter  to  Capt.  Wise  designated 
eight  officers  who  were  to  compose  the  court, 
and  this  communication  expressly  stated  that 
no  other  officers  could  be  summoned  without 
manifest  injury  to  the  serA-ice.  The  order  of 
Admiral  Bunco  to  Capt.  Wise  designating  the 
members  of  the  court  was  a  summons,  within 
the  meaning  of  the  statute.  The  fact  that 
Admiral  Bunce  subsequently,  in  another  letter 
to  Capt.  Wise,  substituted  Lieut.  Berry  in 
place  of  Lieut.  Comly  as  a  member  of  the  court- 
martial,  is  immaterial.  (In  re  Grain,  84  Fed. 
Rep._,  788.) 

It  is  verj'  clear  that  the  article  of  war  proAdd- 
ing  that  general  courts-martial  shall  consist 
of  not  less  than  13,  where  that  number  can 
be  convened  ^vithout  manifest  injury  to  the 
serAice,"  is  merely  directory  to  the  officer 
appointing  the  court;  and  that  his  decision  as 
to  the  number  which  can  be  convened  without 
manifest  injury  to  the  serAdce,  being  in  a 
matter  submitted  to  his  sound  discretion,  must 
be  conclusive.  (Martin  v.  Mott,  12  Wheat.,  19, 
35.) 

It  is  a  question  for  the  officer  couA-ening  the 
court  to  determine  whether  more  members  could 
be  convened  Avithout  injury  to  the  service;  and 
his  action  in  this  respect  can  not  be  attacked 
collaterally,  and  if  the  accused  express  satis- 
faction with  the  court-martial  as  constituted,  it 
is  a  clear  waiver  of  any  objection  to  its  person- 
nel.    (Bishop  V.  U.  S.,  197  U.  S.,  334.) 

The  rank  and  number  of  meml^ers  of  a  court- 
martial  must  necessarily  be,  and  is,  left  some- 
what to  the  discretion  of  the  officer  conA-ening  the 


1016 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  39. 


court.  There  is  nothing  in  this  case  to  indicate 
an  abuse  of  discretion,  or  that  a  larger  number 
of  officers  might  have  been  convened  without 
injury  to  the  service,  although  if  the  accused  had 
taken  prompt  advantage  of  the  defect  it  might 
have  been  necessary  to  show  that  a  larger  num- 
ber could  have  been  obtained.  His  expressed 
satisfaction  with  the  court  as  constituted  was  a 
clear  waiver  of  any  objection  to  its  personnel. 
(Bishop  V.  U.  S.,  197  U.  S.,  334,  340.) 

Under  the  articles  of  war  which  provide  that 
a  court-martial  shall  be  composed  of  not  less 
than  five  officers  and  must  be  composed  of  13, 
when  so  many  may  be  convened  without 
manifest  injury  to  the  service,  held  that  the 
fixing  of  the  number  within  those  limits,  with 
reference  to  the  conditions  of  the  service,  is  an 
act  of  executive  discretion  not  subject  to  judi- 
cial rexiew.  (Kahn  v.  Anderson,  255  U.  S.,  1, 
citing  Martin  v.  Mott  and  Bishop  v.  U.  S., 
above  noted.  The  court  in  this  case  was  com- 
posed of  eight  members,  the  order  certifjdng 
that  more  than  that  number  could  not  be  con- 
vened without  manifest  injury  to  the  ser^•ice; 
and  the  legality  of  the  organization  of  the  court 
and  its  jurisdiction  were  at  once  challenged.) 

See  note  to  article  46,  A.  G.  N.,  as  to  absence 
of  members  during  the  trial;  note  to  article  38, 
A.  G.  N.,  as  to  fatal  defect  in  convening  court- 
martial;  and  note  to  article  53,  A.  G.  N.,  as  to 
irregularities  not  fatal. 

Supemvunerary  members. — See  note  to 
article  47,  A.  G.  N.,  under  "Member  absent  at 
commencement  of  proceedings." 

Rank  of  m.em.bers. — See  note  to  article  45, 
A.  G.  N.,  as  to  absence  of  member  resulting  in 
more  than  one-half  of  the  remaining  members, 
exclusive  of  the  president,  being  junior  to  the 
accused . 

The  fact  that  one  of  the  ofiicers  composing 
a  court-martial  is  junior  in  rank  and  another 
inferior  in  grade  to  the  accused,  does  not  of 
itself  render  either  of  them  incompetent  to  sit. 
(17  0p.  Atty.  Gen.,  397.) 

When  the  commander  in  chief  of  a  squadron 
not  in  the  waters  of  the  United  States  convenes 
a  court-martial  to  try  an  officer  attached  to  the 
squadron,  more  than  one-half  of  whose  members 
are  junior  in  rank  to  the  accused,  the  courts 
of  the  United  States  will  assume,  when  his 
action  in  this  respect  is  attacked  collaterally, 
and  nothing  to  the  contrary  appears  on  the  face 
of  the  order  convening  the  court,  that  he 
properly  exercised  his  discretion  and  that  the 
trial  of  the  accused  by  such  a  court  could  not 
be  avoided  mthout  inconvenience  to  the  serv- 
ice. (Mullan  V.  U.  S.,  140  U.  S.,  240.  In  the 
order  convening  the  court  in  this  case  it  was 
stated :  ' '  No  other  officers  than  those  named  can 
be  assembled  without  manifest  injury  to  the 
service."  When  the  court  convened,  the  ac- 
cused objected  and  protested  to  being  tried 
by  the  court,  because  five  of  its  seven  mem- 
bers were  his  juniors.  At  the  time  of  the 
organization  of  the  court  there  were  12  naval 
officers  superior  in  rank  to  the  accused  on  wait- 
ing orders  in  the  city  of  Washington.  He  was 
sentenced  to  dismissal  and  the  sentence  con- 
firmed by  the  President.  He  brought  suit  two 
years  after  dismissal  to  recover  pay  on  the 
ground  that  the  action  of  the  court-martial 
was  void .  Judgment  was  rendered  against  Mm . ) 


In  detailing  officers  to  compose  a  court- 
martial  the  presumption  is  that  the  convening 
authority  acts  in  pursuance  of  the  law;  and  the 
sentence  of  the  court  can  not  be  collaterally 
attacked  by  going  into  an  inquiry  as  to  whether 
the  trial  by  officers  inferior  in  rank  to  the  ac- 
cused was  or  was  not  avoidable,  even  though  the 
record  does  not  affirmatively  disclose  that  the 
appointment  of  officers  inferior  in  rank  to  the 
accused  was  unavoidable  by  reason  of  some 
necessity  of  the  service.  Several  considera- 
tions might  have  determined  the  selection  of 
the  members  of  the  court,  such  as  the  health 
of  the  officers  within  convenient  distance  or 
the  injury  to  the  public  interests  by  detaching 
officers  from  their  stations.  (Swaim  v.  U.  S., 
165  U.  S.,  553,  559.) 

What  officers  eligible  as  members. — 
Undergraduates  _  at  the  MiUtary  Academy, 
West  Point,  are  in  the  eye  of  the  law  not  com- 
missioned officers,  but  warrant  officers,  and  are 
not  therefore  eligible  to  sit  as  members  of  an 
Armv  court-martial.  (7  Op.  Atty.  Gen.,  323, 
328.) 

The  legal  condition  of  undergraduate  cadets 
at  the  Military  Academy  appears  from  the  law 
and  regulations  to  be  in  some  respects  analogous 
to  that  of  midshipmen  in  the  Navy.  (7  Op. 
Atty.  Gen.,  323,  329.) 

\\Tiether  or  not  the  words  "commissioned 
officers, ' '  as  used  in  the  articles  of  war  relating 
to  the  constitution  of  courts-martial,  include 
all  commissioned  officers,  it  is  at  least  certain 
that  they  exclude  all  persons  who  are  not 
commissioned  officers.  (7  Op.  Atty.  Gen., 
323,  330.) 

Chaplains,  surgeons,  pursers,  and  all  other 
noncombatant  officers  are  incompetent  to  offi- 
ciate as  members  of  naval  courts-martial.  (2 
Op.  Atty.  Gen.,  297.) 

Under  Army  statutes  a  cadet  graduated  from 
the  Military  Academy,  if  no  vacancy  existed 
to  which  he  could  be  appointed  in  a  particular 
corps,  was  attached  to  such  corps  by  brevet  of 
the  lowest  grade,  as  a  supernumerary  officer, 
until  a  vacancy  should  happen,  when  he  was 
to  receive  his  line  commission.  ^Vlien  so 
brevetted  as  a  second  lieutenant  and  attached 
as  a  supernumerary  officer  to  some  corps  of  the 
Army,  such  graduated  cadet,  while  in  this 
intermediary  state,  was  a  "commissioned  offi- 
cer" within  the  meaning  of  the  articles  of  war 
prescribing  who  shall  be  members  of  a  general 
or  regimental  court-martial.  (7  Op.  Atty.  Gen., 
323,  "overruling  2  Op.  Atty.  Gen.,  251.  As  to 
status  of  brevet  officers,  see  note  to  sec.  1604, 
R.  S.) 

Volunteer  naval  officers  appointed  under  the 
act  of  July  24,  1861,  for  the  temporary  increase 
of  the  Navy,  were  "commissioned  officers"  and 
competent  to  serve  on  general  courts-martial. 
(10  Op.  Atty.  Gen.,  522.  The  volunteer  officers 
referred  to  were  "acting"  officers  appointed 
by  the  Secretary  of  the  Navy  under  the  act  of 
July  24,  1861,  sec.  2,  12  Stat.,  272,  and  were 
held  by  the  Attorney  General  not  to  be 
"officers"  -within  the  meaning  of  art.  36,  A.  G. 
N.;  see  note  to  that  article.) 

The  word  "commissioned"  is  used  in  the 
Articles  for  the  Government  of  the  Navy  only 
to  indicate  the  rank  of  officers  capable  of 
ser\ing   on   a   general    covu"t-martial,    and    to 


1017 


Sec.  1624,  Art.  39. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


distin<i;viish  them  from  noncommissioned  officers 
anil  })etty  ofKcers,  terms  well  understood  in  the 
Navy  and  the  country.  (10  Op.  Atty.  Gen., 
522.) 

The  appointment  of  an  officer  may,  indeed, 
be  temporary,  but  as  long  as  it  lasts  he  is,  to  all 
intents  and  purposes,  an  officer  of  the  Navy; 
and  he  is  as  fully  commissioned  as  any  other 
officers  of  the  Navy  are  to  perform  all  naval 
services  and  duties  appropriate  to  his  rank. 
(lOOp.  Atty.  Gen.,  522.) 

Minority  of  member, — The  minority  of 
some  of  the  members  of  a  court-martial  is  not 
available  as  an -objection  to  the  validity  of  its 
proceedings.  WTiatever  effect  minority  of  a 
junior  would  have  at  common  law  upon  the  ver- 
dict, it  has  nothing  to  do  with  the  action  of  a 
court-martial  which  exists  by  virtue  of  statutes 
and  regulations  conformable  thereto.  (16  Op. 
Atty.  Gen.,  550.) 

Retired  oflB.cers. — Retired  officers  and 
officers  of  the  United  States  Guards  are  compe- 
tent, under  the  articles  of  war,  to  sit  on  courts- 
martial  as  officers '  'in  the  military  service  of  the 
United  States " ;  the  former  because  they  are 
officers  in  the  military  service  of  the  United 
States,  and  because  the  order  assigning  them 
to  the  court  was  vnthin  the  authority  conferred 
by  the  act  of  April  23,  1904  (33  Stat.,  264), 
which  provides  that ' '  the  Secretary  of  War  may 
assign  retired  officers  of  the  Army,  with  their 
consent,  to  active  duty  *  *  *  upon  couils- 
martial . ' '  The  latter  because,  under  sections  1 
and  2  of  the  selective  service  act  of  May  18, 1917 
(40  Stat.,  77),  and  regulations  of  the  President 
thereunder,  the  United  States  Guards  were  a 
part  of  the  Army  of  the  United  States,  and  these 
officers  were  therefore  competent  to  be  assigned 
to  court-martial  duty.  (Kahn  v.  Anderson, 
255  U.  S.,  1;  see  note  "to  art.  52,  A.  G.  N.,  under 
"Omission  of  record  to  show  jurisdictional 
facts.") 

Changes  in  membership  by  Bureau  of 
Navigation. — The  conviction  by  a  general 
court-martial  can  not  be  ratified  or  confirmed 
by  the  Secretary  of  the  Navy  where  one  mem- 
ber of  the  court  was  relieved,  and  another 
member  substituted  in  his  stead,  by  the  Chief 
of  the  Bureau  of  Navigation,  without  authority 
of  the  Secretary  of  the  Navy  by  whom  the 
court  was  convened.  Trial  by  a  court-martial 
not  legally  constituted  is  not  a  trial  which  can 
be  said  to  be  "due  process  of  law."  (22  Op. 
Atty.  Gen.,  137;  see  note  to  art.  53,  A.  G.  N., 
as  to  irregularities  and  fatal  defects.) 

New  trial;  former  raemberg  ineligible. — 
The  officers  who  sat  upon  the  first  trial  should 
all  be  excluded  from  the  second  trial.  They 
have  formed  and  expressed  opinions  upon  the 
case  which  would  disqualify  them  from  service 
as  jurors  in  a  criminal  case  in  a  common-law 
court;  and  there  is  no  reason  why,  under  the 
same  circumstances,  officers  should  not  be  ex- 
cluded from  a  court-martial  and  especially  as 
they  are  the  triers  of  the  facts  as  well  as  the  law. 
(3  Op.  Atty.  Gen.,  396.) 

Challenge  of  member. — The  decision  of  a 
court-martial  in  overruling  an  objection  made 
by  the  accused  to  an  officer  sitting  on  the  trial 
whom  the  accused  in  the  performance  of  his 
official  duty  on  several  occasions  severely  criti- 
cised for  official  reports,  and  whose  enmity  and 


dislike  had  been  thereby  incurred,  could  not  be 
reviewed  by  the  civil  courts  in  a  collateral 
action  by  the  accused  for  the  pay  of  his  office. 
(Swaim  v.  U.  S.,  165  U.  S.,  553,  560.  See  note 
below,  under  "Court  illegally  constituted"; 
and  see  note  to  art.  53,  A.  G.  N.,  as  to  review  of 
errors  by  civil  coui'ts.) 

Court  illegally  constituted. — Where  a 
court-martial  is  illegally  constituted,  all  of  the 
members  thereof  being  incompetent  by  statute 
to  sit  thereon  for  the  trial  of  the  case  before  it, 
the  invalidity  of  the  court  can  be  raised  by 
habeas  corpus.  The  judgment,  even  after 
approval  of  the  officers  provided  by  statute,  is 
that  of  a  court  of  limited  jurisdiction  only, 
whose  judgments  may  be  attacked  collaterally. 
The  question  is  one  of  jurisdiction  simply.  If 
the  court-martial  had  jurisdiction  over  the  sub- 
ject matter  of  the  charge  and  of  the  person  of 
the  accused,  or  if  his  consent  gave  such  juris- 
diction, the  vviit  of  habeas  corpus  v\ill  afford  no 
relief,  for  generally  in  such  case  any  error  com- 
mitted by  a  court-martial  regularly  organized 
and  vvith  full  jurisdiction  is  not  assailable  before 
the  civil  courts.  But  where  the  court  is  ille- 
gally constituted,  it  has  no  jurisdiction  over  the 
person  of  the  accused  or  of  the  subject  matter  of 
the  charge  against  him,  and  his  consent  could 
confer  none  m  opposition  to  the  statutory  re- 
quirement for  members  of  a  court-martial,  con- 
vened to  try  him.  (McClaughry  v.  Deming, 
186  U.  S.,  49,  68,  affirming  113'Fed.  Rep.,  639.) 

The  consent  of  the  accused  can  not  confer 
jurisdiction  upon  a  court  not  possessing  it  by 
virtue  of  statutory  authority.  (22  Op.  Atty. 
Gen.,  137.) 

By  the  articles  of  war  it  was  provided  that 
"officers  of  the  Regular  Army  shall  not  be  com- 
petent to  sit  on  courts-martial,  to  try  the  officers 
or  soldiers  of  other  forces,"  with  an  exception 
referring  to  officers  of  the  Marine  Corps  detached 
for  service  v^ith  the  Army:  Held,  that  the  trial 
of  an  officer  of  volunteers  by  a  court-martial  all 
the  members  of  which  were  officers  of  the 
Regular  Army  was  illegal,  and  the  objec- 
tion to  it  could  be  taken  on  habeas  corpus. 
(McClaughry  v.  Deming,  186  U.  S.,  49,  affirming 
113  Fed.  Rep.,  639.) 

A  court-martial  is  the  creature  of  statute,  and 
must  be  convened  and  constituted  in  entire 
conformity  with  the  provisions  of  the  statute,  or 
else  it  is  without  jurisdiction.  As  to  the  officer 
to  be  tried,  there  was  no  court.  No  challenge 
of  the  members  was  necessary,  for  there 
was  no  court  to  hear  and  dispose  of  the 
challenge.  It  is  unlike  an  officer  who  might  be 
subject  to  challenge  as  under  some  bias.  A 
failure  to  challenge  in  such  a  case  might  very 
well  be  held  to  waive  the  defect  and  the  officer 
could  sit  and  the  finding  of  the  court-martial  be 
legal.  In  this  case  it  is  an  objection  that  the 
whole  court  as  a  court  was  illegally  constituted, 
because  in  violation  of  the  express  provision  of 
statute,  and  the  challenge  to  the  whole  court  is 
not  provided  for  by  the  statute.  (McClaughry 
V.  Deming,  186  U.  S.,  49,  affirming  113  Fed. 
Rep.,  639.) 

Wliere  a  court  is  illegally  constituted,  none  of 
the  members  being  competent  to  sit  thereon,  it 
can  not  be  said  that  the  defendant  waived  the 
question  of  inv-alidity  by  not  objecting  to  being 
tried  by  it.    His  consent  could  no  more  give 


1018 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  40. 


jurisdiction  to  the  court,  either  over  the  subject 
matter  or  over  his  person,  than  if  it  had  been 
composed  of  a  like  number  of  ci\'ilians  or  of 
women  or  of  privates.  (McClaughry  i'.  Deming, 
186  U.  S.,  49,  66,  affirming  113  Fed.  Rep., 
639.) 

The  articles  of  war  provided  that  ' '  officers  of 
the  Regular  Army  shall  not  be  competent  to  sit 
on  courts-martial  to  try  the  officers  or  soldiers  of 
other  forces. ' '  A  court-martial  for  the  trial  of  a 
volunteer  officer  was  composed  of  five  members 
one  of  whom  was  an  officer  of  the  Regular  Army 
who  also  held  a  commission  as  an  officer  of  vol- 
unteers under  which  he  was  ser\ing  at  the  time, 
having  been  gi'anted  indefinite  leave  of  absence 
from  the  Regular  Army  while  so  serving:  Held, 
that  the  language  of  the  article  is  peremptory; 
that  the  officer  in  question  was  not  competent 
to  sit  on  a  court-martial  to  try  a  volunteer  officer; 
and  that,  as  without  him  there  would  have  been 
an  insufficient  number,  there  was  no  court  and 
the  sentence  of  dismissal  was  void.  (U.  S.  v. 
Brown,  206  U.  S.,  240,  affirming  41  Ct.  Cls.,  275. 
Compare,  Brown  v.  Root,  18  App.  D.  C,  239.) 


Member  of  couxt  as  witness.— Where  the 
accused  was  tried  and  convicted  by  a  general 
court-martial  on  three  distinct  charges,  one  of 
which  had  been  preferred  l:)y  a  member  of  the 
court  who  testified  as  a  witness  in  support  of  the 
same  and  afterwards  sat  upon  the  trial,  no  objec- 
tion being  made  thereto  by  the  accused,  and  the 
sentence  of  the  court  was  duly  confirmed, 
held,  that  the  fact  that  a  member  of  the  court  sat 
upon  the  trial  after  testifying  did  not  render  its 
proceedings  invalid  or  make  its  sentence  void 
and  inoperative.     (15  Op.  Atty.  Gen.,  432.) 

The  objection,  where  it  is  not  distinctly 
waived  by  the  accused,  goes  to  the  propriety  of 
the  member  sitting  after  he  had  testified,  not 
to  his  legal  capacity  to  sit;  and  if  seasonably 
made  it  would  afford  good  grounds  for  disap- 
proval of  the  proceecUngs  by  the  reviewing  offi- 
cer, though  not  of  itself  sufficient  to  invalidate 
them.     (15  Op.  Atty.  Gen.,  432.)  _ 

For  other  cases  see  note  to  Constitution,  sixth 
amendment,  under  "IV.  Impartial  trial";  and 
see  Keyes  v.  United  States  (109  U.  S.,  336), 
cited  in  note  to  article  53,  A.  G.  N.,  under  "Ju- 
risdiction of  ci\'il  courts." 


Art.  40.  [Oaths  of  members  and  judge-advocate.]  The  president  of  the  gen- 
eral court-martial  shall  administer  the  following  oath  or  affirmation  to  the 
judge- advocate  or  person  officiating  as  such: 

"I,  A  B,  do  swear  (or  affirm)  that  I  will  keep  a  true  record  of  the  evidence 
given  to  and  the  proceedings  of  this  court;  that  I  will  not  divulge  or  by  any 
means  disclose  the  sentence  of  the  court  until  it  shall  have  been  approved  by 
the  proper  authority;  and  that  I  will  not  at  any  time  divulge  or  disclose  the 
vote  or  opinion  of  any  particular  member  of  the  court,  unless  recjuired  so  to 
do  before  a  court  of  justice  in  due  course  of  law." 

This  oath  or  affirmation  being  duly  administered,  each  member  of  the  court, 
before  proceeding  to  trial,  shall  take  the  following  oath  or  affirmation,  which 
shall  be  administered  by  the  judge-advocate  or  person  officiating  as  such: 

"I,  A  B,  do  swear  (or  affirm)  that  I  will  truly  try  without  prejudice  or  par- 
tiality, the  case  now  depending,  according  to  the  evidence  which  shall  come 
before  the  court,  the  rules  for  the  government  of  the  Navy,  and  my  own  con- 
science; that  I  will  not  by  any  means  divulge  or  disclose  the  sentence  of  the 
court  until  it  shall  have  been  approved  by  the  proper  authority;  and  that  I 
will  not  at  any  time  divulge  or  disclose  the  vote  or  opinion  of  any  particular 
member  of  the  court,  unless  required  so  to  do  before  a  court  of  justice  in  due 
course  of  law."— (17  July,  1862,  c.  204,  s.  1,  art.  12,  v.  12,  pp.  603,   604.) 


Judge  advocate. — See  notes  to  sections  189 
and  362,  Re\'ised  Statutes. 

According  to  the  law  regulating  courts- 
martial  the  judge  advocate  is  the  official  prose- 
cutor; and  in  cases  arising  in  the  Navy  he  is, 
by  custom,  either  a  naval  officer  specially  des- 
ignated or  a  lawyer  employed  for  that  purpose. 
However,  held,  that  where  the  case  before  the 
court-martial  is  of  such  a  character  as  to  render 
it  expedient  that  the  proceeding  be  conducted 
by  a  lawyer,  the  Secretary  of  the  Navy  is  not  at 
liberty  to  employ  counsel,  but  should  call  upon 
the  Department  of  Justice  to  supply  an  officer 
for  the  ser^ice.     (13  Op.  Atty.  Gen.,  514.) 


The  head  of  the  Navy  Department  can  not, 
consistently  with  the  provisions  of  section  17 
of  the  act  of  June  22,  1870  (sec.  189,  R.  S.), 
employ  an  attorney  or  counsellor  at  law  to 
conduct  proceedings  before  a  naA'al  court- 
martial.  (14  Op.  Atty.  Gen.,  13,  affirming  13 
Op.  Atty.  Gen.,  515.) 

Special  counsel  may  be  employed  by  the 
Attorney  General,  at  the  request  of  the  Secre- 
tary of  the  Navy,  to  assist  the  judge  advocate 
in  a  trial  by  court-martial — the  compensation 
of  such  counsel  (in  the  absence  of  other  pro\d- 
sion)  to  be  paid  from  the  appropriation  for  the 
contingent    expenses    of    the    Navy.      Such 


54641°— 22- 


-65 


1019 


Sec.  1624,  Art.  40. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


counsel  should  lie  commissioned  by  the  Attor- 
ney General  under  section  366,  Revised 
Statutes.     (18  Op.  Atty.  Gen.,  135.) 

A  judge  advocate  need  not  be  a  professional 
person.  His  qualifications  must,  of  course,  be 
of  the  sort  required  by  members  of  the  bar, 
but  there  is  no  law  limiting  choice  of  judge 
advocates,  or  of  their  assistants  when  needed, 
to  that  class.  Although  there  is  no  statutory 
provision  in  regard  to  naval  judge  advocates 
like  that  for  those  of  the  Army,  to  the  effect 
that  they  shall  belong  to  the  Navy,  yet  in  fact 
this  is  generally  the  case.  Such  assistants  for 
judge  advocates  might  be  detailed  from  the 
same  branch  of  the  service,  or,  indeed,  specially 
intelligent  persons  might  be  selected  fi-om  any 
line  of^civil  life.     (18  Op.  Atty.  Gen.,  135, 137.) 

Prosecutor;  evidence;  closing  argu- 
ment.^As  to  the  right  of  a  private  prosecutor, 
there  is  a  diAcrsity  between  military  and  naval 
courts-martial,  the  former  allowing  and  the 
latter  rejecting  it.     (2  Op.  Atty.  Gen.,  286.) 

The  judge  advocate  has  the  right  of  a  reply 
in  a  military  trial,  and  so  has  the  accuser  when 
acting  as  prosecutor;  but  such  reply  ought  to 
be  a  commentary  on  the  evidence  introduced 
by  the  prisoner,  and  on  his  remarks  in  enforcing 
it,  or  in  arraigning  the  testimony  offered  in 
support  of  the  prosecution.  No  new  matter 
ought  to  be  introduced  at  this  stage  of  the  trial 
without  the  special  leave  of  the  court,  and  then 
it  should  be  supported  by  witnesses,  and  the 
prisoner  should  be  allowed  to  rejoin  and  remark 
upon  such  new  matter.  Especially,  the  prose- 
cutor ought  not  to  be  permitted,  under  color  of 
rephang  to  the  prisoner's  defense,  to  give  addi- 
tional testimony  at  this  stage  of  the  trial,  and 
by  a  statement  of  the  facts  made  when  the 
prisoner  has  not  the  opportunity  to  cross- 
interrogate  him  and  which  he  hadi  not  made 
when  sworn  as  a  mtness,  to  attempt  to  explain 
or  contradict  what  has  been  pre\'iou6ly  given 
in  eA-idence.     (2  Op.  Atty.  Gen.,  286.) 

After  the  officer  upon  whose  information  the 
charges  and  specifications  were  preferred  has 
given  his  testimony  before  a  naval  court- 
martial,  he  may  be  permitted  to  remain  in 
court  as  the  prosecutor,  to  aid  by  his  suggestions 
the  judge  advocate  in  bringing  out  the  evi- 
dence.    (3  Op.  Atty.  Gen.,  714.) 

There  can  be  no  doubt  as  to  the  competency 
of  the  evidence  of  the  prosecutor.  How  far 
his  credibility  may  be  affected  by  the  relation 
in  which  he  stands  toward  the  accused  is  a 
question  of  discretion  for  the  court  itself.  (3 
Op.  Atty.  Gen.,  714.) 

It  is  settled  law  in  England  that  the  prose- 
cutor, after  giving  evidence,  may  remain  in 
court  to  conduct  the  prosecution.  This,  in  the 
absence  of  uniform  practice  to  the  contrary,  is 
the  rule  to  be  followed  by  our  courts-martial. 
C3  0p.  Atty.  Gen.,  714.) 

Irregularity  in  administering  oaths. — 
Where  at  the  organization  of  a  naval  court- 
martial  each  member  of  the  court  was  first 
sworn  by  the  judge  advocate,  who  was  then 
sworn  by  the  president  of  the  court,  instead  of 
the  oath  being  first  administered  by  the  presi- 
dent to  the  judge  advocate  and  then  by  the 
latter  to  each  member  of  the  court,  as  pre- 
scribed by  the  act  of  July  17,  1862  (12  Stat., 
603,  604),  which  reversed  the  order  required  by 


the  previous  act  of  April  23,  1800  (2  Stat.,  50): 
Held,  that  notwithstanding  the  irregularity  in 
the  order  of  administering  the  oaths,  the  pro- 
ceedings of  the  court  must  now  be  held  valid. 
(13  Op.  Atty.  Gen.,  374.) 

No  objection  appears  to  have  been  made  at 
the  time.  The  accused  submitted  himself  to 
the  jurisdiction  of  the  court.  The  sentence  of 
dismissal  was  duly  executed.  The  irregular- 
ity was  not  so  material  as  to  render  the  whole 
proceedings  void,  especially  when  no  exception 
was  taken  at  the  time.  There  are  many  sorts 
of  exceptions  sustainable  if  taken  at  the  time, 
but  which  come  too  late  after  the  completion 
of  the  trial.  Such  is  the  case  here.  (13  Op. 
Atty.  Gen.,  374.) 

See  note  to  article  53,  A.  G.  N.,  as  to  irregu- 
larities  and    fatal   defects. 

Judge  advocate  not  sworn. — The  ob- 
jection that  the  judge  advocate  was  not  sworn 
goes  to  the  construction  and  organization  of 
the  court.     (3  Op.  Atty.  Gen.,  396.) 

Judge  advocates  of  naval  courts-martial  are 
required  to  be  sworn;  and  where  the  proceed- 
ings of  such  courts  do  not  show  that  they  were 
it  may  be  properly  considered  that  the  fact 
does  not  exist  and  that  they  were  not  sworn; 
and  that  therefore  the  proceedings  were  illegal 
and  void.  (3  Op.  Atty.  Gen.,  396:  See  note  to 
art.  52,  A.  G.  N.,  as  to  omissions  in  record.) 

The  duties  of  the  judge  advocate  are  very 
important;  he  is  to  keep  the  record  of  the 
evidence  given  and  the  proceedings  of  the 
court;  and  upon  this  evidence  and  the  proceed- 
ings as  recorded  by  him  the  fate  of  the  accused 
is  ultimately  to  be  decided.  His  fidelity 
should  be  secured  by  at  least  the  usual  sanc- 
tions. In  addition  to  which.  Congress  has 
given  the  form  of  oath  to  be  administered  by 
the  president  of  the  court  to  the  judge  advo- 
cate before  proceeding  to  trial.  (3  Op.  Atty. 
Gen.,  396.) 

It  is  fatal  error  in  proceedings  before  courts- 
martial  for  the  president  to  omit  an  oath  or 
affirmation  to  the  judge  advocate  before  pro- 
ceeding to  trial.     (3  Op.  Atty.  Gen.,  544.) 

The  articles  for  the  government  of  the  Navy 
distinctly  require  that  the  president  of  every 
court-martial  shall  administer  a  certain  oath  or 
affirmation  therein  set  forth  to  the  judge  ad- 
vocate before  proceeding  to  trial.  The  justice 
and  propriety  of  this,  whether  the  prosecution 
of  the  accused  or  his  defense  is  considered,  are 
not  less  apparent  than  its  necessity  in  point  of 
law.  There  is  nothing  whatever  in  the  record 
which  gives  reason  to  believe  that  this  re- 
quisition was  complied  with  in  the  present 
case.  Accordingly,  held  that  its  omission  is 
fatal.     (3  Op.  Atty.  Gen.,  544.) 

Objections  were  made  to  the  action  of  a 
court-martial  in  that,  among  other  things,  it 
permitted  a  person  to  act  as  judge  advocate 
who  was  not  appointed  by  the  convening  of- 
ficer of  the  coiu't-martial  nor  sworn  to  the 
faithful  performance  of  his  duty.  Held,  that 
such  questions  were  merely  those  of  procedure, 
and  the  court-martial  having  jurisdiction  of  the 
person  accused  and  of  the  offense  charged,  and 
having  acted  within  the  scope  of  its  lawful 
powers,  its  proceedings  and  sentence  can  not 
be  reviewed  or  set  aside  by  the  civil  courts. 
(Swaim  v.  U.  S.,  165  U.  S.,  553,  561.) 


1020 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  42. 


See  note  to  article  53,  A.  G.  N.,  as  to  irregu- 
larities and  fatal  defects;  and  note  to  article 
52,  A.  G.  N.,  under  "Omission  of  record  to 
show  jurisdictional  facts." 

Whether  oath  should  be  repeated  in 
each  case. — See  note  to  article  58,  A.  G.  N., 
as  to  courts  of  inquiry. 

Where  a  general  court-martial  was  convened 
for  the  trial,  generally,  of  such  persons  as 
might  be  brought  before  it,  but  the  warrant 
for  the  court  was  accompanied  with  a  speci- 
fication of  certain  persons  who  were  to  be  tried, 
with  a  reference  to  the  charges  to  be  exhibited 
against  them,  a  renewed  administration  of  the 
oath  was  not  necessary  before  the  trial  of  an 
officer  so  specially  named.  As  to  others,  if  the 
action  of  the  court  in  trying  them  without 
reswearing  the  court  conformed  to  the  general 
practice  in  the  Navy,  the  proceedings  may  be 
considered  legal  on  the  ground  of  such  prece- 
dents. If  this  practice  is  disapproved  by  the 
department,  it  may  be  controlled  prospec- 
tively by  an  order  enjoining  the  administra- 
tion of  the  oath  in  each  case.  (2  Op,  Atty. 
Gen.,  297.) 

In  the  absence  of  any  practice  or  precedent 
upon  the  subject,  it  would  appear  that  the 
words  of  the  law  imply  that  the  oath  is  to  be 
taken  in  every  case;  and  the  omission  to  do  so 
would  render  the  proceedings  invalid  and 
void.     (2  Op.  Atty.  Gen.,  460.) 

If,  however,  it  has  been  the  usage  of  naval 
courts-martial  to  take  the  oath  but  once,  and 
this  practice  has  been  sanctioned  by  the  Gov- 


ernment, such  usage  and  practice  should  be 
regarded  as  sufficient  evidence  of  the  con- 
struction given  to  the  law  in  question  by  the 
proper  authorities,  and  that  the  oath  directed 
to  be  taken  was  held  by  them  to  apply  to  all 
cases  that  should  come  before  the  court.  The 
sentence,  in  that  event,  might  be  sustained  on 
the  ground  that  the  law  in  question  had  in  like 
cases  received  a  construction  to  which  the 
court  conformed  in  their  proceedings.  (2  Op. 
Atty.  Gen.,  460.) 

The  whole  question  is  one  of  form,  and  no 
injustice  is  done  by  either  interpretation. 
For  if  the  oath  is  in  practice  to  be  taken  but 
once,  it  must  be  on  the  ground  that  it  applies 
to  all  cases  that  may  come  before  the  court. 
The  accused  has,  therefore,  upon  this  con- 
struction, the  same  security  and  the  same 
hold  on  the  conscience  of  the  court  that  he 
would  have  if  the  oath  were  taken  in  his 
particular  case.     (2  Op.  Atty.  Gen.,  460.) 

Obhgation  of  secrecy. — The  obligation 
assumed  under  oath  by  the  members  of  a  naval 
com-t-martial  to  keep  secret  the  sentence  of 
the  court  is  entirely  removed,  by  the  very 
terms  of  the  oath,  when  that  sentence  has  been 
approved  by  the  proper  authority;  and  even 
the  vote  or  opinion  of  any  particular  member 
of  the  court  may  be  divulged  without  a  viola- 
tion of  duty  when  the  party  is  required  to  dis- 
close it  before  a  court  of  justice  in  due  course 
of  law.     (11  Op.  Atty.  Gen.,  137,  141.) 

Responsibihty  for  correctness  of  rec- 
ord.— See  note  to  article  52,  A.  G.  N. 


Art.  41.  [Oath  of  witness.]  An  oath  or  affirmation  in  the  following  form, 
shall  be  administered  to  all  witnesses,  before  any  court-martial,  by  the  presi- 
dent thereof: 

"You  do  solemnly  swear  (or  affirm)  that  the  evidence  you  shall  give 
in  the  case  now  before  this  court  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth,  and  that  you  will  state  everything  within  your  know- 
ledge in  relation  to  the  charges.  So  help  you  God;  (or  Hhis  you  do  under 
the  pains  and  penalties  of  perjury.')" — (17  July,  1862,  c.  204,  s.  1,  art.  14,  v. 
12,  p.  604.) 

Compelling  attendance  of  witnesses. — 
See  note  to  article  42,  A.  G.  N. 


Witness  not  properly  sworn. — See  note 
to  article  53,  A.  G.  N.,  under  "Irregularities  and 
fatal  defects." 


Art.  42.  [Evidence;  witnesses;  perjury;  contempt.]  Whenever  any  person 
refuses  to  give  his  evidence  or  to  give  it  in  the  manner  provided  by  these 
articles,  or  prevaricates,  or  behaves  with  contempt  to  the  court,  it  shall  be 
lawful  for  the  court  to  imprison  him  for  any  time  not  exceeding  two 
months.— (17  July,  1862,  c.  204,  s.  1,  art.  13,  v.  12,  p.  604.) 

"Sec.  12.  That  any  person  duly  subpoenaed 
to  appear  as  a  witness  before  a  general 
court-martial  or  court  of  inquiry  of  the 
Navy,  who  willfully  neglects  or  refuses  to 
appear,  or  refuses  to  qualify  as  a  witness 
or  to  testify  or  produce  documentary  evi- 
dence which  such  person  may  have  been 
legally  subpoenaed  to  produce,  shall  be 
deemed  guilty  of  a  misdemeanor,  for 
which  such  person  shall  be  punished  on 
information  in  the  district  court  of  the 


Amendment  to  this  article  was  made  by  act 
of  February  16,  1909,  sections  11  and  12 
(35  Stat.,  621,  622),  as  follows: 

"Sec.  11.  That  a  naval  court-martial  or  court 
of  inquiry  shall  have  power  to  issue  like 
process  to  compel  witnesses  to  appear  and 
testify  which  United  States  courts  of 
criminal  jurisdiction  within  the  State, 
Territory,  or  District  where  such  naval 
court  shaU  be  ordered  to  sit  may  lawfully 
issue. 


1021 


Sec.  1624,  Art.  42. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


United  State?;  and  it  shall  be  the  duty  of 
the  United  States  district  attorney,  on  the 
certitication  of  the  facts  to  him  by  such 
naval  court,  to  file  an  information  against 
and  prosecute  the  person  so  offending,  and 
the  punishment  of  such  person,  on  convic- 
tion, shall  be  a  fine  of  not  more  than  five 
hundred  dollars  or  im])risonment  not  to  ex- 
ceed six  months,  or  both,  at  the  discretion 
of  the  court:  Provided,  That  this  shall  not 
applv    to    persons    residing    beyond    the 
State,  Territory,  or  District  in  which  such 
naval  court  is  held,  and  that  the  fees  of 
such  Avitnesses  and  his  mileage  at  the  rates 
pro^ided  for  witnesses  in  the  United  States 
district  court  for  said  State,  Territory,  or 
District  shall  be  duly  paid  or  tendered 
said  -nitness,  such  amounts  to  be  paid  by 
the  Bureau  of  Supplies  and  Accounts  out 
of  the  appropriation  for  compensation  of 
witnesses:  Provided  farther,  That  no  witness 
shall  be  compelled  to  incriminate  himself 
or  to  answer  any  question  w'hich  may  tend 
to  inciiminate  or  degrade  him." 
Perjury  before  naval  general  court-martial. — 
See  section  1023,  Revised  Statutes.    See 
also  note  to  article  8,  A.  G.  N.,  under 
"Scandalous  conduct  tending  to  the  de- 
struction of  good  morals." 
The  use  of   depositions  before  naval  coxirts- 
martial  was  authorized  by  act  of  February 
1(5,  1909,  section  16  (35  Stat.,  622). 
Use  of  court  of  inquiry  records  in  evidence 
before  courts-martial ;  see  article  60,  A.  G.  N . 
Compelling  attendance  of  civilian  wit- 
nesses.— ^There  was  no  law  in  18-59  authorizing 
an  Army  court-martial  to  compel  the  attendance 
of  -witnesses  who  were  not  in  the  military  serv- 
ice.    (9  Op.  Atty.  Gen.,  311.) 

Section  2-5  of  the  sundry  ci-vil  appropriation 
act  of  March  3, 1863  (12  Stat.,  7-54),  embodied  in 
section  1202,  Re^^.sed  Statutes,  authorized 
"every  judge  advocate  of  a  court-martial  or 
court  of  inquiiy' '  to  issue  like  process  to  compel 
witnesses  to  appear  and  testify  which  courts  of 
criminal  jurisdiction  within  the  State,  Terri- 
tory, or  District  where  such  "military  courts" 
shall  be  ordered  to  sit  may  lawfully  issue. 
Held,  that  said  enactment  of  1863  did  not  apply 
to  naval  courts-martial.  The  use  of  the  words 
"military  courts"  seems  to  limit  the  effect  of 
the  act  to  courts-martial  in  the  Army.  (19  Op. 
Atty.  Gen.,  .501.) 

Articles  42  and  57,  A.  G.  N.,  do  not  apply  to 
ci\ilian  witnesses.  Nothing  in  the  way  of  con- 
trol by  courts-martial  over  ciAalians  is  to  be 
taken  in  its  favor  by  implication.  (19  Op. 
Atty.  Gen.,  501.) 

A  naval  court-martial  or  judge  advocate  there- 
of has  no  power  to  compel  a  civilian  witness, 
who  is  not  subject  to  the  Articles  for  the  Gov- 
ernment of  the  Navy,  to  appear  and  testify  be- 
fore such  court.  (19  Op.  Atty.  Gen.,  501,  Feb. 
26,  1890.) 

The  act  of  ^Vlarch  3,  1863  (above  noted),  em- 
powered the  judge  advocate  of  an  Ai-my  court- 
martial  to  issue  a  vvrit  of  attachment,  a  perfect, 
complete,  and  effective  writ,  to  compel  the  at- 
tendance of  a  civilian  witness.  An  attachment 
is  directed  to  a  sheriff  or  marshal  and  com- 
mands him  to  have  the  party  named  therein 
before  the  coiu-t,  and  differs  from  a  subpoena 


which  is  simply  a  summons  addressed  to  wit- 
nesses and  may  be  served  upon  them  by  anyone 
who  is  interested  in  their  attendance.  In  issu- 
ing an  attachment  to  compel  the  attendance  of 
a  civilian  witness,  the  judge  advocate  may  di- 
rect such  process  to  such  officers  as  are,  by  prac- 
tice of  the  service,  ordinarily  charged  with  the 
duty  of  performing  the  executive  business  of 
military  courts.  The  process  is  not  complete;  it 
is  no  process  at  all,  unless  directed  to  some  one 
by  whom  it  is  to  be  executed.  (12  Op.  Atty. 
Gen.,  501.) 

Fees  mvist  be  paid  or  tendered. — See  act 
of  Februaiy  16,  1909,  c^uoted  above  under  this 
article. 

The  act  of  March  2, 1901  (31  Stat.,  950),  which 
provides  that  a  person  who,  being  duly  subpoe- 
naed to  appear  as  a  witness  before  a  general 
court-martial  of  the  Anny ,  willfully  neglects  or 
refuses  to  appear,  or  refuses  to  qualify  as  a  wit- 
ness, or  to  testify,  or  produce  documentaiy  evi- 
dence which  he'may  have  been  legally  subpoe- 
naed to  produce,  shall  be  deemed  guilty  of  a 
misdemeanor,  for  which  he  may  be  punished  on 
information  in  the  district  court  of  the  United 
States,  requires  that  the  legal  fees  of  such  wit- 
ness shall  be  first  duly  paid  or  tendered  to  him 
at  the  time  of  service  of  the  subpoena,  in  order 
to  lay  the  foundation  for  a  prosecution  under 
that  act.  A  mere  statement  in  the  subpoena, 
signed  by  the  judge  advocate  of  the  court- 
martial,  to  the  effect  that  the  United  States 
tenders  or  guarantees  the  payment  of  the  au- 
thorized fees,  is  not  a  sufficient  compliance  with 
that  act  to  support  a  prosecution  thereunder. 
(23  0p.  Atty.  Gen.,  424.) 

As  to  witnesses'  fees  in  general,  see  sections 
848-851,  Revised  Statutes,  and  notes  thereto. 

Refusal  to  testify  or  produce  docu- 
ments.—Where  a  civilian  witness  was  brought 
before  a  court-martial  of  the  Army,  but  refused 
to  testify,  the  court  was  not  inv^ested  with  any 
inherent  power  to  punish  the  witness  for  con- 
tempt. Such  power  can  only  be  exercised 
when  given  to  it  by  the  positive  tenns  of  some 
statute.  The  law  (sec.  1202,  R.  S.)  armed  the 
court  with  authority  to  compel  the  witness  to 
appear  and  testify,  so  far  as  this  could  be  done 
by  process;  but  in  securing  his  testimony  the 
coui-t  was  restricted  to  the  means  which  it  vv-aa 
thus  authorized  to  employ.  It  could  not  in- 
flict any  punishment  where  the  power  to  impose 
it  was  not  clearly  conferred  by  Congi-ess.  (18 
Op.  Atty.  Gen.,  278.) 

Where  a  civilian  subpoenaed  in  accordance 
with  statute  as  a  witness  before  an  Army  court- 
martial  was  advised  by  competent  counsel  that 
certain  questions  asked  of  him,  if  answered, 
might  subject  him  to  a  civil  or  criminal  prose- 
cution for  libel;  and  for  this  reason  he  refused 
to  answer  on  advice  of  counsel,  and  not  from 
any  evil  intent  or  with  legal  malice,  his  refusal 
did  not  constitute  a  violation  of  the  statute. 
(U.  S.  V.  Praeger,  149  Fed.  Rep.,  474.) 

Where  a  civilian  witness  refused  to  answer 
certain  questions  because  the  answer  might  tend 
to  incriminate  him,  the  decision  of  the  court- 
martial  that  the  questions  were  proper  was  not 
conclusive  on  the  civil  courts  of  the  question 
whether  the  witness  was  guilty  of  contempt  in 
refusing  to  answer.  (U.  S.  r.  Praeger,  149  Fed. 
Rep.,  474.) 


1022 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  42. 


Under  the  articles  of  war  providing  that  a 
court-martial  may  punish  at  its  discretion  any 
person  who  uses  any  menacing  words,  signs,  or 
gestures  in  its  presence,  or  who  disturbs  its  pro- 
ceedings by  any  riot  or  disorder,  such  court 
has  no  final  jurisdiction  over  a  civilian  sub- 
poenaed to  testify  before  it,  or  power  to  punish 
him  for  contempt  for  refusing  to  testify.  (U. 
S.  V.  Praeger,  149  Fed.  Rep.,  474.) 

Where  a  \vitnes3  subpoenaed  to  produce  cer- 
tain documents  before  an  Army  court-martial 
testified  that  he  had  destroyed  the  documents 
before  service  of  the  process,  his  failure  to  pro- 
duce did  not  constitute  a  willful  refusal  to 
produce  such  documents  within  the  statute 
making  such  act  a  misdemeanor.  (U.  S.  v. 
Praeger,  149  Fed.  Rep.,  474.) 

Member  of  Congress  as  witness. — See 
cases  noted  under  Constitution,  Article  I,  sec- 
tion 6,  clause  1. 

Self-incrimination;  requiring  witness  to 
answer. — See  note  above,  under  "Refusal  to 
testify  or  produce  documents  " ;  and  see  note  to 
Constitution,  fifth  amendment,  under  "III. 
Compelling  person  to  be  witness  against  him- 
self." 

A  cadet  at  the  Military  Academy  was  tried 
by  court-martial  and  found  guilty  of  the 
offense  charged.  At  the  trial  a  witness  objected 
to  answering  a  question  on  the  ground  of  self- 
incrimination;  but  the  court  required  him  to 
answer:  Held,  That  if  the  court  committed 
error  in  compelling  the  mtness  to  answer,  the 
error  is  not  such  as  to  require  disapproval  of  the 
proceedings.  Where  the  right  of  a  witness  is 
violated,  it  is  for  him  to  complain  and  not  the 
defendant.  (17  Op.  Atty.  Gen.,  616;  see  note 
to  art.  53,  A.  G.  N.,  as  to  effect  of  irregularities.) 

Depositions. — Witnesses  who  were  not  in 
military  service  could  not  be  compelled  in  ]  859 
to  make  depositions  to  be  used  in  evidence 
before  courts-martial  on  the  trial  of  cases  not 
capital.     (9  Op.  Atty.  Gen.,  311.) 

An  officer  about  to  be  put  upon  trial  before  a 
naval  court-martial  consented  that  the  deposi- 
tion of  witnesses  abroad,  taken  iipon  inter- 
rogatories and  cross-interrogatories,  should  be 
used  on  the  trial.  Held,  That  the  rule  of  law 
that  no  evidence  shall  be  given  against  a  pris- 
oner except  in  his  presence  is  a  personal  priv- 
ilege which  he  may  waive;  and  that  it  was 
waived  by  the  officer  in  this  case;  the  point  of 
time  at  which  his  consent  was  expressed  will 
not  affect  the  competency  of  the  testimony; 
but  suggested  that  it  might  be  well  to  have  such 
waiver  in  writing,  after  the  arrest  and  after  the 
order  convening  the  court.  (1  Op.  Atty.  Gen., 
706.^ 

It  would  not  be  competent  for  an  ofiicer  of 
the  Navy,  under  arrest,  and  the  Navy  Depart- 
ment to  dispense  with  the  attendance  of  wit- 
nesses before  a  naval  court-martial  and  by 
common  consent  to  take  depositions  to  be  used 
on  the  trial,  when  objected  to  by  the  officer 
preferring  the  charges.  (2  Op.  Atty.  Gen., 
343.) 

The  37th  article  of  the  Articles  for  the  Gov- 
ernment of  the  Navy  (act  Apr.  23,  1800,  2 
Stat.,  50\  requiring  that  "all  testimony  given 
to  a  general  court-martial  shall  be  on  oath 
or  affirmation,"  etc.,  seems  to  contemplate  ex- 
clusively the  examination  of  witnesses  before 


the  court.  The  articles  of  war,  pro\'iding  that 
under  certain  restrictions  and  in  cases  not 
capital  depositions  may  be  taken  for  use  before 
Army  courts,  negatives  their  allowance  in  other 
cases;  and  the  existence  of  the  provision  suffi- 
ciently proves  that  mthout  it  such  testimony 
would  not  be  competent  even  in  those  minor 
cases.  (2  Op.  Atty.  Gen.,  343.  Compare  note 
toart.  60,  A.  G.  N.) 

See  note  to  Constitution,  sixth  amendment, 
under  "VI.  Confronting  witnesses." 

The  use  of  depositions  before  naval  courts  in 
certain  cases  and  under  certain  restrictions  was 
authorized  by  act  of  February  16,  1909,  section 
16  (35  Stat.,  622). 

Absent  witness.— See  note  to  Constitution, 
sixth  amendment,  under  "VI.  Confronting 
witnesses;"  and  see  note  to  article  57,  A.  G.  N. 

Copies  of  papers  in  evidence. — See  section 
882,  Re\'ised  Statutes,  and  note  thereto;  see  also 
note  toart.  34,  A.  G.  N. 

The  introduction  in  evidence  of  copies  of 
letters  on  file  in  the  Department  of  the  Navy  at 
Washington,  and  which  are  required  by  law  to 
be  kept  there,  and  which  were  not  authenti- 
cated under  the  seal  of  the  department,  was 
error.  Copies  so  authenticated  would  have 
been  as  admissible  as  the  originals;  copies  not 
so  authenticated  were  not  as  admissible  as  the 
originals.  (Cohn  v.  U.  S.,  258  Fed.  Rep., 
355.)  _ 

It  is  not  understood  that  copies  of  official 
papers  on  file  in  an  executive  department  ■  an 
be  received  in  evidence  only  when  they  are 
authenticated  under  the  seal  of  the  department; 
but  if  copies  not  authenticated  as  provided  by 
section  882,  Revised  Statutes,  are  to  be  intro- 
duced in  e\'idence,  it  is  certainly  necessary 
that  a  proper  foundation  for  their  admission 
should  be  laid,  ha\dng  in  mind  the  general  rule 
that  no  evidence  shall  be  received  which  pre- 
supposes that  the  party  who  offers  it  can  obtain 
better  evidence.  (Cohn  v.  U.  S.,  258  Fed. 
Rep.,  355.) 

Papers  illegally  seized  as  evidence. — 
See  notes  to  Constitution,  fourth  amendment, 
and  fifth  amendment  under  "III.  Compelling 
person  to  be  witness  against  himself. " 

The  fact  that  certain  private  papers  belong- 
ing to  the  accused  may  have  been  illegally 
seized  by  the  authorities  and  illegally  retained 
against  his  protest  would  not  render  their  use 
in  evidence  against  him  unlawful.  (22  Op. 
Atty.  Gen.,  589,  597,  598.) 

The  admission  in  evidence  over  and  against 
the  objection  of  the  accused  of  a  paper  belong- 
ing to  him  which  was  abstracted  by  the  Gov- 
ernment from  his  possession,  -without  his 
knowledge  or  consent,  compels  him  to  be  a 
Avitness  against  himself  in  violation  of  the  fifth 
amendment  to  the  Constitution.  (Gouled  v. 
U.  S.,  255  U.  S.,  298.) 

Where  in  the  progress  of  a  criminal  trial  it 
becomes  probable  that  there  has  been  an  uncon- 
stitutional seizure  of  papers  of  the  accused,  it 
is  the  duty  of  the  trial  court  to  entertain  an 
objection  to  their  admission  in  e\ddence  against 
him,  or  a  motion  for  their  exclusion,  and  to 
decide  the  question  as  then  presented,  even 
where  a  motion  to  return  the  papers  has  been 
denied  before  trial  and  bv  another  judge. 
(Gouled  V.  U.  S.,  255  U.  S.,"298.) 


1023 


Sec.  1624,  Art.  42. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


The  seizure  of  documents  belonging  to  an 
Army  officer  charged  with  an  offense,  from  his 
desk,  to  which  he  vohintarily  turned  over  the 
key,  held  not  a  violation  of  his  constitutional 
riglbts,  whether  or  not  the  documents  were 
used  on  his  trial  by  court-martial.  (U.  S.  v. 
Barry,  260  Fed.  Rep.,  291.) 

Evidence  of  handwriting. — By  act  of 
February  26,  1913  (37  Stat.,  683),  it  is  provided 
that  "in  any  proceeding  before  a  court  or 
judicial  officer  of  the  United  States  where  the 
genuineness  of  the  handwriting  of  any  person 
may  be  involved,  any  admitted  or  proved 
hand^^n•iting  of  such  person  shall  be  competent 
evidence  as  a  basis  for  comparison  by  witnesses, 
or  by  the  jury,  court,  or  officer  conducting  such 
proceeding,  to  pro^•e  or  disprove  such  genuine- 
ness." 

A  knowledge  of  the  hand^vriting  of  a  defend- 
ant charged  with  forgery,  by  a  witness  who  is 
not  an  expert,  does  not  qualify  such  witness  to 
state  his  opinion  whether  or  not  the  forged 
signature,  made.in  imitation  of  the  handwriting 
of  another,  was  written  by  defendant.  (Neall 
V.  U.S.,  118  Fed.  Rep.,  699.) 

Evidence  of  handwriting  by  comparison  of 
hands  is  inadmissible  on  a  trial  by  court- 
martial,  excepting  where  the  writing  acknowl- 
edged to  be  genuine  is  aheady  in  evidence  in 
the  case  or  the  disputed  writing  is  an  ancient 
document.  It  was,  therefore,  error  for  the 
court-martial  to  admit  in  evidence  a  consider- 
able number  of  papers  which  were  not  in  evi- 
dence for  any  other  purpose  than  to  be  used  as 
such  standards  and  which  were  so  used  by 
experts.  In  view  of  the  error  so  made  by  the 
court,  its  sentence  should  be  set  aside  on  re- 
view of  its  proceedings  by  the  Secretary  of 
War.  (17  Op.  Atty.  Gen.,  310.  But  see  act  of 
Feb.  26, 1913,  above  quoted,  which  was  enacted 
after  this  opinion.) 

General  rules  of  evidence  before  courts- 
martial. — EngHsh  wiiters  on  this  subject 
insist  upon  the  propriety  in  trials  before  naval 
and  military  courts-martial  of  adhering  to  the 
rules  of  evidence  established  for  the  common- 
law  courts  of  criminal  jurisdiction.  (2  Op. 
Atty.  Gen.,  343.) 

General  courts-martial  are  governed  by  the 
same  rules  of  evidence  which  govern  the  ordi- 
nary courts  of  criminal  jurisdiction.  These 
rules,  where  not  prescribed  by  statute,  are  sup- 
plied by  the  common  law.  (17  Op.  Atty.  Gen., 
310.) 

See  below  under  "Character  evidence";  see 
sections  859-906,  Revised  Statutes,  and  notes 
thereto,  as  to  evidence  in  civil  courts  of  the 
United  States;  and  see  notes  to  Constitution, 
fifth  and  sixth  amendments. 

Character  evidence. — The  "System  of 
Orders  and  Instructions"  for  the  Navy,  issued 
by  the  President  December  15,  1853,  is  without 
legal  validity  and  in  derogation  of  the  powers 
of  Congress.  In  tliis  "System"  articles  appear 
on  the  subject  of  coui'ts-martial  which  are  in 
pari  materia  with  provisions  of  the  acts  of  Con- 
gress, and  are  in  effect  abrogatory  or  amenda- 
tory of  the  same  as  plainly  as  a  new  act  of  Con- 
gress could  be.  Again,  one  of  the  articles  in 
the  same  chapter  changes  the  whole  theory  of 
judicial  procedure  by  forbidding  the  court  to 
receive  evidence  of  previous  good  character 


and  former  services  of  the  accused  in  mitigation 
of  the  punishment  to  be  awarded.  This  provi- 
sion, which  is  the  more  observable  when  com- 
pared VN-ith  another  article  which  allows  evi- 
dence to  be  introduced  of  previous  bad  char- 
acter, maj^  or  may  not  be  wise;  it  is,  at  any  rate, 
a  very  positive  act  of  legislation  beyond  the 
power  of  the  President.  (6  Op.  Atty.  Gen., 
10,  18.  See  note  to  art.  45,  A.  G.  N.,  as  to  pro- 
cedure of  courts-martial;  sees.  161  and  1547, 
R.  S.,  as  to  regulations  in  general;  and  note  to 
art.  43,  A.  G.  N.,  under  "Charging  offenses 
not  specifically  provided  for.") 

Evidence  after  plea  of  guilty.— Courts- 
martial  may,  and  it  is  their  duty  to,  receive 
such  testimony  as  the  judge  advocate  may 
offer  for  the  purpose  of  illustrating  the  actual 
degree  of  the  offense,  not-withstanding  that  the 
party  accused  shall  have  pleaded  guilty,  if  the 
punishment  shall  be  discretionary,  and  espe- 
cially where  the  discretion  includes  a  vnde 
range  and  great  variety  of  punishments,  and  if 
the  specifications  do  not  show  all  the  circiun- 
stances.  In  all  cases  subject  to  a  discretionary 
punishment  a  full  knowledge  of  the  circum- 
stances attending  the  offense  is  essential  to  an 
enlightened  exercise  of  discretion  by  the  court 
measuring  the  punishment;  and  where  a  formal 
trial  is  rendered  unnecessary  by  a  plea  of  guilty, 
it  is  only  by  affidavits  or  other  incidental  evi- 
dence that  they  can  obtain  that  knowledge. 
(2  Op.  Atty.  Gen.,  636.) 

In  a  case  where  several  of  the  specifications 
were  quite  general  and  the  punishment  was  not 
definitely  prescribed,  but,  on  the  contrary,  a 
wide  discretion  was  allowed,  held  that,  upon 
general  principles  and  in  reference  to  the 
analogies  furnished  by  the  proceedings  in  civil 
tribunals,  the  court-martial  erred  in  excluding 
the  evidence  offered  by  the  judge  advocate 
after  a  plea  of  guilty;  and  as  they  proceeded  to 
impose  the  highest  penalty  in  their  power 
this  error  involves  a  serious  violation  of  prin- 
ciple.    (2  0p.  Atty.  Gen.,  636.) 

AdmissibiLity  of  evidence;  decision  of 
court-martial. — It  is  not  the  official  duty  of 
the  Secretary  of  War  to  give  to  the  judge  advo- 
cate, and  thus  to  the  court-martial,  an  opinion 
as  to  the  admissibihty  of  certain  evidence  in  the 
trial  of  a  case  before  the  court;  nor  as  to  the 
construction  of  a  statute.  Such  questions 
should  be  left  to  the  decision  of  the  court-mar- 
tial itself.     (17  Op.  Atty.  Gen.,  54.) 

Objections  were  made  to  the  action  of  a  coui't- 
martial  in  that,  among  other  things,  it  received 
oral  and  secondary  evidence  of  an  account, 
when  books  of  original  entiy  were  available; 
received  evidence  to  implicate  the  accused  in 
signing  false  certificates  relating  to  money 
which  formed  no  part  of  the  subject  matter  of 
the  charges  on  trial ;  refused  to  permit  evidence 
as  to  the  bad  character  of  a  principal  witness 
for  the  prosecution,  and  refused  to  hear  the 
testimony  of  a  material  witness  for  the  defense : 
Held,  that  the  errors  so  assigned  could  not  be 
reviewed  collaterally  in  a  civil  suit  by  the  ac- 
cused for  the  pay  of  his  office;  such  questions 
were  merely  those  of  procedure,  and  the  court- 
martial,  having  jurisdiction  of  the  person  ac- 
cused and  of  the  offense  charged,  and  having 
acted  within  the  scope  of  its  lawful  powers,  its 
proceedings  and  sentence  can  not  be  reviewed 


1024 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  43. 


or  set  aside  by  the  civil  courts.  (Swaim  v. 
U.  S.,  165  U.  S.,  553,  561;  see  note  to  art.  53, 
A.  G.  N.,  as  to  irregularities  and  fatal  defects.) 

Evidence  in  conspiracy  cases. — See  note  to 
article  14,  A.  G.  N. 

False  testimony  before  courts-martial. — 
See  note  to  article  8,  A.  G.  N.,  under  "  Scandal- 
ous conduct  tending  to  the  destruction  of  good 
morals";  and  see  section  1023,  Re^'ised  Stat- 
utes, as  to  prosecutions  for  perjury  before  naval 
general  courts-martial. 

Expert  witnesses. — See  notes  to  section  848, 
Re\'ised  Statutes;  Constitution,  sixth  amend- 
ment, under  "VII.  Compulsory  process  for  ob- 
taining witnesses  " ;  section  1451,  Ile\ised  Stat- 
utes, under  "Evidence  in  line  of  duty  cases"; 
and  article  59,  A.  G.  N.,  under  "Experts." 

A  witness  is  one  who  may  be  compelled  to 
testify  concerning  a  transaction  which  he  has 
fortuitously  beheld ;  an  expert  is  one  who  testi- 
fies as  to  his  own  self-acquired  knowledge, 
which  he  can  not  be  compelled  to  impart  by  the 
expedient  of  calling  him  as  a  witness.  (Smith 
V.  U.  S.,  24  Ct.  Cls.,  209.) 

The  Government  can  not  acquire  the  services, 
skill,  or  knowledge  of  an  expert  without  his  con- 
sent and  without  j  ust  compensation .  ( Smith  v . 
U.  S.,24Ct.  Cls.,209.) 

The  emplo\Tnent  of  experts  before  a  court- 
martial  is  -within  the  legal  and  proper  discretion 
of  the  Secretary  of  War;  and  his  order  to  employ 
aad  pay  them  is  official  authority  to  an  officer 

Art.  43.  [Charges  and  specifications;  arrest  of  accused.]  The  person 
accused  shall  be  furnished  with  a  true  copy  of  the  charges,  with  the  specifica- 
tions, at  the  time  he  is  put  under  arrest;  and  no  other  charges  than  those  so 
furnished  shall  be  urged  against  him  at  the  trial,  unless  it  shall  appear  to  the 
court  that  intelligence  of  such  other  charge  had  not  reached  the  officer  order- 
ing the  court  when  the  accused  was  put  under  arrest,  or  that  some  witness 
material  to  the  support  of  such  charge  was  at  that  time  absent  and  can  be 
produced  at  the  trial;  in  which  case  reasonable  time  shall  be  given  to  the  accused 
to  make  his  defense  against  such  new  charge. —  (17  July,  1862,  c.  204,  s.  1, 
art.  15,  V.  12,  p.  604.) 


who  in  the  ordinary  discharge  of  his  duty  makes 
such  payments,  and  protects  him  from  the  sum- 
mary remedy  of  ha\'ing  his  pay  stopped. 
(Smith  t'.  U.  S.,  24  Ct.  Cls.,  209.) 

What  are  termed  experts  are  not  necessarily 
or  properly  witnesses.  Their  office  may  be  sim- 
ply to  aid  in  the  preparation  of  a  case  without 
being  called  to  testify,  and  they  are  frequently 
employed  to  aid  counsel  in  the  cross-examina- 
tion of  witnesses.  In  the  complexities  of  mod- 
ern ciAdUzation  they  are  constantly  resorted  to 
in  all  courts,  chU  and  criminal.  (Smith  v. 
U.  S.,  24  Ct.  Cls.,  209.) 

All  persons  in  the  com'se  of  ordinary  life  are 
liable  to  witness  transactions,  or  casualties,  or 
crimes  of  their  fellow  men.  In  such  cases,  pub- 
lic necessity  requires  that  they  may  be  com- 
pelled to  testify.  The  burden  of  doing  so  must 
be  borne  by  him  on  whom  it  falls,  and  the 
chance  is  a  chance  which  may  fall  upon  any 
member  of  the  community.  A  siugeon  walk- 
ing down  the  street  and  witnessing  an  accident 
or  murder  may  describe  the  injiuies  of  the  \dc- 
tim  more  clearly  than  an  ordinary  beholder. 
But  he  is  not  an  expert;  he  is  merely  the  fortui- 
tous witness  of  an  occurrence  concerning  which 
he  mav  be  made  to  testify.  (Smith  v.  U.  S., 
24Ct.  Cls.,  209.) 

For  other  cases  see  note  to  article  45, 
A.  G.  N.,  as  to  receiving  evidence  while  court  is 
cleared,  and  as  to  evidence  of  insanity. 


"Arrest"  construed. — Upon  considera- 
tion of  articles  24,  43,  and  44,  A.  G.  N.,  held 
that  there  may  be  two  arrests,  namely  (1)  an 
aiTest  in  an  emergency  or  upon  discovery  of 
the  alleged  wrongdoing,  with  a  view  to  a  pre- 
liminary examination,  and,  if  necessary,  the 
formiilation  and  specification  of  charges;  and 
(2)  an  aiTCst  for  trial.  Held,  further,  that 
article  43,  in  the  provision  declaring  that ' '  the 
person  accused  shall  be  furnished  %vith  a  true 
copy  of  the  charges,  mth  the  specifications, 
at  the  time  he  is  put  under  arrest,"  has  refer- 
ence to  the  arrest  for  trial  and  not  the  arrest  in 
the  first  instance.  (19  Op.  Atty.  Gen.,  472; 
see  art.  44,  A.  G.  N.,  referring  in  terms  to  the 
arrest  "for  trial.") 

Article  43,  A.  G.  N.,  refers  to  the  arrest  of 
the  accused  for  trial  by  court-martial,  and  not 
toanypreviousarrest,  either  by  way  of  punish- 
ment or  to  await  the  action  of  a  court  of  inquiry. 
If  he  is  already  in  custody  to  await  the  result 
of  a  court  of  inquiry,  this  article  is  sufficiently 


complied  with  by  delivering  a  copy  to  him 
immediately  after  the  Secretary  of  the  Navy 
has  informed  lum  of  that  result  and  has  ordered 
a  court-martial  to  convene  to  try  him.  Being 
already  in  custody  to  await  the  result  of  a 
court  of  inquiry,  he  could  not  be  considered 
as  put  under  arrest  for  trial  by  court-martial 
before  the  Secretary  of  the  Naw  had  informed 
him  of  the  report  of  the  court  of  inquiry  and 
had  ordered  a  court-martial  to  convene  to  try 
him.  Immediately  after  that,  and  four  days 
before  the  court-martial  met,  the  accused  in 
this  case  was  furnished  with  a  copy  of  the 
charge  and  specification  on  which  he  was  to  be 
tried.  This  was  a  sufficient  compliance  -ivith 
the  article  in  question.  (Johnson  v.  Sayre, 
158  U.  S.,  109,  117.) 

Under  the  Articles  for  the  Government  of 
the  Navy,  the  provision  as  to  ser\ice  of  charges 
upon  the  accused  at  the  time  he  is  put  under 
arrest  refers  not  to  the  temporary  arrest  neces- 
sary for  order  and  discipline  at  the  time  of  the 


1025 


Sec.  1624,  Art.  43. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


commission  of  the  offense,  but  to  the  sub- 
sequent arrest  for  trial  by  court-martial. 
(Bishop  V.  U.  S.,  197  U.  S.,  334.)  _ 

The  word  "arrest"  as  employed  in  article  43 
A.  G.  N.,  does  not  relate  to  the  preliminary 
arrest  or  detention  of  an  accused  person  await- 
ing; the  action  of  higher  authority  to  frame 
changes  and  specifications  and  order  a  court- 
martial,  but  to  the  arrest  resulting  from  pre- 
fening  the  charge  by  the  proper  authority  and 
the  convening  of  a'  court-martial.  (U.  S.  v. 
Smith,  197  U.  S.,  386,  appro\dn^,  19  Op.  Atty. 
Gen.,  472;  Johnson  v.  Sayre,  158  U.  S.,  109;  and 
Bishop  V.  U.  S.,  197  U.  S.,  334.) 

Both  the  spirit  and  the  letter  of  the  Articles 
for  the  Government  of  the  Navy  require  that 
a  copy  of  such  charges  and  specifications  be 
furnished  \\dthin  a  reasonable  time  after  the 
first  arrest;  and  what  would  be  such  reason- 
able time  would  depend  on  the  circumstances 
of  each  case.  However,  if  they  were  not 
furnished  M-ithin  a  reasonable  time,  or  if  the 
con^'ening  of  the  coml-martial  were  too  long 
delayed,  such  would  seem  to  be  objections 
going  only  to  the  regularity  of  the  proceedings 
and  not  to  the  jurisdiction  of  the  coiut.  (19 
Op.  Atty.  Gen.,  472,  476.) 

Waiver  of  objection  by  the  accused. — 
\Miere  the  record  of  a  court-martial  shows  that 
the  accused  stated  at  the  beginning  of  the  trial 
that  he  had  received  a  copy  of  the  charges  and 
specifications  against  him,  but  it  does  not 
appear  that  such  copy  was  served  upon  him 
at  the  time  of  his  arrest,  and  no  objection  on 
that  ground  was  made  at  the  trial,  it  will  be 
presumed  that  they  were  served  as  required 
bv  the  statute.  (In  re  Grain,  84  Fed.  Ilep., 
789.) 

It  is  at  least  doubtful  whether  the  objection 
(that  the  accused  did  not  receive  a  true  copy 
of  the  charge  and  specification  at  the  time  he 
was  put  under  arrest)  did  not  come  too  late, 
after  he  had  admitted  before  the  court-martial 
that  he  had  received  a  copy  of  the  charge  and 
specification,  and  after  objections  to  the 
jurisdiction  of  the  court,  and  to  the  form  of  the 
accusation,  had  been  overruled  and  he  had 
pleaded  not  guilty  and  the  CAadence  of  the 
United  States  had  been  introduced.  (John- 
son V.  Sa>Te,  158  U.  S.,  109,  117.) 

Whether  an  objection  as  to  the  lateness  of 
service  of  specifications  is  jurisdictional  and 
can  be  collaterally  inquired  into,  where  such 
objection  was  not  made  at  the  trial,  not  de- 
cided.    (U.  S.  V.  Smith,  197  U.  S.,  386,  391.) 

Had  the  court  been  regularly  and  legally 
organized,  the  fact  of  its  not  appearing  on  the 
record  that  the  prisoner  had  been  furnished 
with  a  copy  of  charges  or  been  asked  if  he  had 
any  objection  to  the  members  of  the  court 
might  not  be  sufficient  cause  for  setting  aside 
the  proceedings.  If  any  injustice  was  done 
to  the  accused  in  these  particulars,  he  should 
make  the  question  before  the  court  and  in 
that  way  make  it  appear  on  the  face  of  the 
proceedings.  (3  Op.  Atty.  Gen.,  396,  holding 
the  proceedings  illegal  in  this  case  because  the 
court  was  not  legally  organized.) 

See  note  to  article  53,  A.  G.  N.,  as  to  irregu- 
larities and  fatal  defects;  and  note  to  article  52, 
A.  G.  N.,  under  "Omission  of  record  to  show 
jurisdictional  facts." 


Arrest  of  officer  while  on  bail. — Full 
power  is  po.ssessed  by  the  Secretary  of  the  Navy 
to  cause  the  arrest  of  any  officer  of  the  Navy 
charged  with  the  commission  of  crime  and  to 
have  him  l)r()ught  before  a  naval  court-martial 
for  trial.     (21  (:)p.  Atty.  Gen.,  504.) 

Where  a  disbursing  officer  of  the  Navy  has 
been  arrested  by  the  cIat.!  authorities  of  the 
United  States  for  embezzlement  and  misappro- 
priation of  public  funds,  and  released  on  bail, 
the  Attorney  General  will  not  instruct  a  United 
States  attorney,  at  the  request  of  the  Secretary 
of  the  Navy,  to  cause  the  arrest  of  the  officer  by 
the  United  States  marshal,  as  it  would  be  both 
unnecessary  and  improper  to  cause  the  arrest 
of  the  said  naval  officer  by  the  civil  officers  of 
the  Government  in  order  that  he  might  be  tried 
before  a  naval  court-martial,  while  adequate 
power  resides  in  the  Secretary  of  the  Navy  to 
arrest  and  confine  him  and  bring  him  before 
such  court-martial  for  trial.  (21  Op.  Atty. 
Gen.,  504.) 

See  note  to  Constitution,  fourth  amendment, 
under  "Arrest  of  military  offenders";  and  see 
note  to  Constitution,  Article  I,  section  8,  clause 
14,  under  "Jurisdiction  of  courfe-martial," 
subheading  "Persons  in  constructive  custody 
of  ciA'il  courts." 

"Charge"  and  "specification"  ex- 
plained.— In  the  American  serA-ice  the  cus- 
tom is  to  present  a  "charge"  so  called,  in  gen- 
eral terms  indicatiA^e  of  the  offense  imputed, 
as  "desertion,"  "disobedience  of  orders," 
"mutiny,"  or  "conduct  unbecoming  an  officer 
and  a  gentleman,"  and  to  subjoin  a  "specifica- 
tion" or  "specifications,"  in  which  are  set 
forth  the  particular  facts  w^hich  it  is  conceiA-ed 
by  the  party  preferring  the  accusation,  or  by 
the  authority  ordering  the  trial,  constitute  the 
offense  designated  in  the  "charge."  In  the 
British  service,  on  the  other  hand,  there  is  no 
distinction  between  the  "charge"  as  such  and 
the  "specification."  Each  separate  fact  or  set 
of  facts  constituting  the  matter  of  accusation  is 
set  forth  in  a  distinct  charge,  cA'en  though  there 
should  be  a  plurality  of  subjects  of  charge  each 
one  importing  a  A'ariety  of  the  same  offense, 
and  therefore  susceptible  of  classification  under 
general  heads  of  charge.  (7  Op.  Atty.  Gen., 
601.) 

Our  practice  has  couA^enience  in  many  cases. 
If  the  crime  be  of  a  genus  which  has  but  one 
species,  as  "sleeping  on  post,"  then  the 
"charge"  is  in  general  but  a  title,  as  it  were,  to 
the  "specification";  but  eA'en  in  such  a  case 
there  may  be  a  plurality  of  acts  of  the  same 
offense,  Avhich  it  is  proper  to  charge,  although 
if  proved  to  be  followed  by  but  one  possible 
sentence  for  all  the  acts.  (7  Op.  Atty.  Gen., 
601.) 

But  where  the  offense  is  of  a  genus  compre- 
hending many  species,  the  convenience  of 
classification  under  general  heads  of  charge  is 
apparent.  Still  more  is  that  conA'enience 
manifest  when  the  accusation  is  of  a  plurality 
of  offenses,  as  "disobedience  of  orders," 
"neglect  of  duty,"  and  "mutiny,"  and  there  is 
a  plurality  of  acts  of  each  offense.  Then  it  is 
clear  to  see  how  our  practice  tends  not  only  to 
methodize  the  proceedings,  but,  what  is  more 
important,  to  methodize  the  elements  of  deci- 
sion in  the  minds  of  the  triers  and  of  the  supe- 


1026 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  43. 


rior  authority  which  is  to  approve  or  disapprove 
their  final  action.     (7  Op.  Atty.  Gen.,  601.) 

The  law  governing  Army  courts-martial  is 
found  in  the  statutory  enactments  of  Congress, 
particularly  in  the  articles  of  war,  in  the  Army 
regulations,  and  in  the  customary  military  law. 
According  to  military  usage  and  practice,  the 
charge  is  in  effect  di\ided  into  two  parts,  the 
first  technically  called  the  "charge"  and  the 
second  the  "specification."  The  charge  proper 
designates  the  military  offense  of  which  the 
accused  is  alleged  to  be  guilty;  the  specifica- 
tion sets  forth  the  acts  or  omissions  of  the 
accused  which  form  the  legal  constituents  of 
the  offense.  (Carter  v.  McClaughry,  183  U.  S., 
365,  386.) 

Sufficiency  of  charges;  technical  aver- 
ments.— If  the  description  of  the  offense  is 
sufficiently  clear  to  inform  the  accused  of  the 
military  offense  for  which  he  is  to  be  tried,  and 
to  enable  him  to  prepare  his  defense,  it  is  suffi- 
cient. Hence  a  charge  which  uses  the  word 
"inebriation"  is  sufficient  under  the  articles  of 
war  which  use  the  technical  word  ' '  drunken- 
ness," although  it  would  certainly  have  _  been 
more  formal  to  use  the  teim  which  is  used  in  the 
articles  of  war.     (1  Op.  Atty.  Gen.,  294.) 

The  writers  on  military  law  require  minute- 
ness and  precision  in  specifying  the  time, 
"whenever  it  is  possible  to  be  thus  particular" ; 
but  they  all  agree  that  this  minuteness  and  pre- 
cision are  not  always  within  the  reach  of  the 
prosecutor;  hence  they  allow  him  a  latitude  in 
the  statement  of  the  time,  and  examples  cited 
by  them  permit  a  range  of  three  months  as  to 
the  laying  of  the  time.  This  latitude  is  not 
allowable  in  covu"ts  of  civil  jurisdiction.  (1  Op. 
Atty.  Gen.,  294.) 

A  specification  of  charge  is  good  and  will  sup- 
port the  finding  and  sentence  upon  it,  with  or 
without  descriptive  designation  of  the  quality 
of  the  imputed  criminal  act,  provided  it  appear 
that  the  facts  alleged  and  proved  constitute  in 
any  point  of  \dew  the  offense  charged.  (7  Op. 
Atty.  Gen.,  601.) 

Under  a  charge  of  "conduct  unbecoming  an 
officer  and  a  gentleman,"  the  specifications  al- 
leged that  the  accused  did  certain  acts,  and 
concluded,  "all  which  was  an  abuse  of  his  trust, 
a  violation  of  his  public  duty,  and  was  conduct 
unbecoming  an  officer  and  a  gentleman."  The 
court,  in  its  findings  upon  the  specifications, 
excepted  the  words  quoted ;  but  found  the  ac- 
cused guilty  upon  the  charge.  Held,  that  what 
remained  of  each  specification,  after  the  excep- 
tions made  by  the  court,  although  less  full  and 
explicit  than  the  whole  original  specification, 
yet  plainly  appears  on  careful  inspection  of  the 
matter  to  be  competent  to  justify  the  finding 
and  to  sustain  the  charge;  that  the  words  ex- 
cepted were  words  of  description,  merely;  and 
that  the  proceedings  were  therefore  valid. 
Held,  further,  that  while  the  words  excepted  by 
the  court  were  not  words  of  necessary  insertion 
in  specifications,  neither  were  they  words  of 
necessary  exclusion  therefrom;  that  while  a 
specification  is  maintainable  without  the  words 
excepted,  so  it  is  with  them;  that  the  words 
were  descriptive  of  the  facts  alleged;  that  the 
practice  of  including  such  words  is  well  sus- 
tained by  practice  as  by  principle;  that  par- 
ticularity of  description  would  seem  to  be  in 


the  interest  of  the  party  accused  as  well  as  the 
service.  Suggested,  that  to  prevent  exception 
in  future  cases,  the  very  words  of  the  charge  be 
employed  as  the  concluding  or  commencing 
words  of  specifications,  and  that  such  expres- 
sions of  qualification  as  the  natiure  of  the  facts 
may  require  and  justify  be  incorporated  in  the 
narrative  part  of  the  specification.  (7  Op. 
Atty.  Gen.,  601.) 

Certain  it  is  that  charges  and  specifications 
for  trial  by  court-martial  do  not  need  to  possess 
the  technical  nicety  of  indictments  at  common 
law.  Trials  by  court-martial  are  governed  by 
the  nature  of  the  service,  which  demands  in- 
telligible precision  of  language,  but  regards  the 
substance  of  things  rather  than  their  form; 
which  eschews  looseness  or  confusion  in  all 
things,  but  reflects  that  military  administra- 
tion must  be  capable  of  working  in  peace,  it  is 
true,  but  more  especially  amid  the  privations 
and  the  dangers  of  war.  Hence,  undoubtedly, 
the  most  bald  statement  of  the  facts  alleged  as 
constituting  the  offense,  provided  the  legal 
offense  itself  be  distinctively  and  accurately 
described  in  such  terms  of  precision  as  the  rules 
of  military  jurisprudence  require,  will  be  ten- 
able in  court-martial  proceedings  and  will  be 
adequate  gi'ound  work  of  conviction  and  sen- 
tence.    (7  Op.  Atty.  Gen.,  601.) 

All  the  technicalities  which  have  been  ap- 
plied to  common-law  indictments  are  not  re- 
quired in  specifications  in  court-martial  pro- 
ceedings. Here  it  is  sufficient  if  the  facts  con- 
stituting the  offense  be  described  with  such  cer- 
tainty as  to  clearly  inform  the  accused  of  his 
alleged  misconduct  and  the  offense  with  which 
he  is  charged.  (28  Op.  Atty.  Gen.,  286, 
292.) 

In  cases  where  a  fraudulent  or  criminal  inten- 
or  knowledge  upon  the  part  of  the  accused  may 
be  necessary  to  constitute  the  offense,  it  would 
not  be  necessaiy  to  specifically  declare  their 
presence  in  the  specification  of  a  charge  to  be 
tried  by  a  naval  court-martial;  their  absence 
would  be  a  matter  of  defense.  (28  Op.  Atty. 
Gen.,  286,  292.) 

A  charge  of  assault  with  a  ilfie  and  the  inflic- 
tion of  a  mortal  wound  by  accused  upon  a  fellow 
soldier,  with  particulars  of  time  and  place  clear- 
ly stated,  sufficiently  alleged  an  offense  within 
the  article  of  war  providing  for  the  trial  and 
punishment  of  all  crimes  not  specified  in  the 
foregoing  articles  (see  art.  22,  A.  G.  N.).  The 
charge  and  specification  did  not  accuse  the 
prisoner  of  any  willful  or  felonious  act,  but  the 
facts  alleged  constituted  an  offense  cognizable 
by  court-martial.  (In  re  Stubbs,  133  Fed. 
Rep.,  1012.) 

It  would  be  extremely  absm'd  to  expect  the 
same  precision  in  a  charge  brought  before  a 
court-martial  as  is  required  to  support  a  con- 
\-iction  by  a  justice  of  the  peace.  (See  Smith 
V.  Whitney,  116  U.  S.,  167,  185.) 

The  pleading  need  not  possess  the  technical 
nicety  of  an  indictment  as  at  common  law. 
(Carter  v.  McClaughiy,  183  U.  S.,  365,  386, 
citing  7  Op.  Atty.  Gen.,  604.)  ■ 

See  note  to  article  8,  A.  G.  N.,  as  to  form  of 
charge  and  specification  for  "scandalous  con- 
duct tending  to  the  destruction  of  good  morals. ' ' 

See  note  to  article  14,  A.  G.  N.,  as  to  charge 
I   and  specification  for  embezzlement. 


1027 


Sec.  1624,  Art.  43. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Charging  offenses  not  specifically  pro- 
vided for. — The  "Orders,  Regulations,  and 
Instructions  for  the  Administration  of  Law  and 
Justice  in  the  United  States  Navy,"  issued  by 
the  Secretary  of  the  Navy,  under  authority  of 
the  President,  in  1870,  pro\dded,  in  section  126 
thereof,  that  when  a  charge  "comes  directly 
under  any  enactment  it  should  be  set  forth  in 
the  terms  used  therein";  and  in  section  127, 
that  "when  the  offense  is  a  disorder  or  neglect 
not  specially  proxdded  for,  it  should  be  charged 
as  'scandalous  conduct  tending  to  the  destruc- 
tion of  good  morals.'  "  Section  1547  of  the  Re- 
vised Statutes  is  a  legislatiA^e  recognition  of  the 
Na^y  Regulations  of  1870,  and  "must  be 
understood  as  giAing  to  these  regulations  the 
sanction  of  the  law."  (Smith  v.  Whitney,  116 
U.  S.,  167,  180;  see  also  notes  to  articles  8  and 
22,  A.  G.  N.;  compare  note  to  art.  42,  A.  G.  N., 
under  "Character  eA-idence";  and  see  note  to 
Art.  45,  A.  G.  N.) 

Description  of  accused  in  charges. — 
WTiere  a  naval  court-martial  tried  a  master-at- 
arms  for  desertion  on  a  charge  headed  with  a 
caption  styling  the  accused,  "master-at-arms," 
and  discharged  him  on  the  ground  that  since 
his  arrest  he  had  not  been  borne  on  the  ship's 
books  as  such,  held  that  the  decision  was  errone- 
ous, and  that  the  grounds  stated  were  insuffi- 
cient to  deter  the  court  from  proceeding  to 
judgment  on  the  merits.  (3  Op.  Atty.  Gen., 
5487) 

In  this  case  the  accused  pleaded  guilty  to  a 
charge  of  desertion.  The  court,  notwithstand- 
ing the  plea,  proceeded  to  hear  the  eAddence 
produced  by  the  judge  advocate.  And  the 
accused  questioned  both  the  witnesses  in  his 
behalf,  offering  no  objection  at  any  time  to  the 
proceedings.  Held,  (1)  that  the  error  in  the 
designation  of  the  accused  was  not  made  in  the 
charge  and  specification  on  which  he  was  tried, 
but  merely  in  the  general  heading  thereto; 
(2)  that  it  was  admitted  that  the  accused  was 
master-at-arms  when  the  offense  alleged  in  the 
charge  was  committed,  and  there  was  no  con- 
clusive proof  that  he  had  been  dismissed  from 
that  rank  when  the  charge  was  preferred;  (3) 
that  supposing  this,  however,  to  have  been 
clearly  established,  yet  the  facts  of  his  ha\dng 
pleaded  to  the  charge,  of  his  never  haAang  in 
any  way  made  such  an  exception  or  defense, 
and  of  their  being  no  dispute  whatever  as  to  the 
identity  of  the  person,  would  have  prevented 
the  accused  himself  from  taking  advantage  of 
the  error  at  this  stage  of  the  case;  and,  of 
course,  it  afforded  no  ground  for  the  court  to 
refuse  to  proceed  to  judgment  on  the  merits. 
(3  0p.  Atty.  Gen.,  548.) 

A  midshipman  was  nominated  and  confirmed 
in  March,  1868,  to  be  an  ensign,  the  promotion 
being  made  "subject  to  examination."  In 
July,  1868,  having  never  been  examined,  he 
was  tried  by  a  naval  court-martial  as  a  mid- 
shipman and  sentenced  to  dismissal  from  the 
service.  Held,  that  under  the  circumstances 
he  was  properly  tried  as  a  midshipman.  (16 
Op.  Atty.  Gen.,  550;  see  note  to  Art.  54,  A. 
G.  N.,  as  to  promotion  of  officer  under  charges.) 

Amendment  of  charges. — In  a  trial  by 
court-martial  the  charges  can  not  be  so 
amended  after  arraignment  as  to  entirely  ob- 
literate the  original  specifications  and  insert 


new  ones  describing  wholly  different  offenses; 
hence,  where  the  prisoner,  pending  his  trial  by 
court-martial,  seeks  relief  from  a  civil  court  l)y 
habeas  corpus,  and  the  charges  are  found  to  be 
wholly  insufficient  to  show  jurisdiction  in  the 
court-martial,  a  discharge  will  be  granted.  (Ex 
parte  Henderson,  11  Fed.  Cas.  No.  6.349.) 

Sufficiency  of  charges  question  for 
court-martial. — \Vhere  a  charge  against  a 
person  tried  by  a  military  court  is  within  the 
court's  jurisdiction,  and  is  authorized  by  the 
Army  or  Navy  regulations,  the  manner  of  set- 
ting out  the  offense  is  a  matter  of  pleading, 
rather  than  jurisdiction,  the  sufficiency  of 
which  is  for  the  exclusive  determination  of  the 
court-martial.  (Ex  parte  Dickey,  204  Fed. 
Rep.,  322.) 

Joinder  of  charges. — There  is  no  objection 
to  the  joinder  of  separate  and  incongruous 
charges  in  the  same  prosecution  before  a  court- 
martial,  as  such  is  permitted  by  the  military 
usage  and  procedure.  (22  Op.  Atty.  Gen., 
589.)  _ 

Unlike  the  ordinary  criminal  procedure, 
when  but  one  indictment,  setting  forth  in  one 
or  more  counts  a  single  offense  or  connected 
criminal  transaction,  is  in  general  brought  to 
trial  at  one  time,  the  military  usage  and  pro- 
cedure permit  of  an  indefinite  number  of 
offenses  being  charged  and  adjudicated  to- 
gether in  one  and  the  same  proceeding.  (22 
Op.  Atty.  Gen.,  589,  595.) 

With  a  view  to  the  summary  and  final  action 
so  important  in  military  cases,  whenever  an 
officer  or  soldier  has  been  apparently  guilty  of 
several  or  many  offenses,  whether  of  a  similar 
character  or  distinct  in  their  nature,  charges 
and  specifications  covering  them  all  should, 
if  practicable,  be  preferred  together  and  to- 
gether brought  to  trial.  (22  Op.  Atty.  Gen., 
589,  595.) 

An  indefinite  number  of  offenses  may  be 
adjudicated  together  in  one  proceeding  by  a 
court-martial  and  a  single  sentence  rendered 
covering  all  the  convictions.  (Rose  v.  Rob- 
erts, 99  Fed.  Rep.,  948.) 

Not  only  do  _  military  usage  and  procedure 
permit  of  an  indefinite  number  of  offenses 
being  charged  and  adjudicated  together  in  one 
and  the  same  jDroceeding,  but  the  rule  is  re- 
cognized that  whenever  an  officer  has  been 
apparently  guilty  of  several  offenses,  whether 
of  similar  character  or  distinct  in  their  nature, 
charges  and  specifications  covering  them  all 
should,  if  practicable,  be  preferred  together 
and  together  brought  to  trial.  (Carter  v. 
McClaughry,  183  U.  S.,  365,  386.) 

Additional  charges;  trial  by  different 
courts. — Specifications  of  charge  known  to 
the  Secretary  of  the  Navy,  by  whom  a  naval 
court-martial  was  ordered,  when  former  charges 
against  the  accused  were  prepared  by  him 
before  another  and  a  distinct  court  upon  a 
different  and  distinct  matter,  may  be  tried 
before  a  subsequent  court-martial  together  with 
other  charges  not  previously  known.  (4  Op. 
Atty.  Gen.,  410,  construing  art.  38,  act  Apr.  23, 
1800,  2  Stat.,  50.) 

For  reasons  which  are  very  manifest,  incon- 
gruous charges  may  be  tried  by  a  court-martial 
which  would  vitiate  an  indictment.  It  is 
generally  desirable  that  all  charges  against  an 


1028 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  45. 


officer  should  be  tried  by  one  court;  but  there 
is  no  such  restriction  on  the  Secretary  of  the 
Na^'y,  who  may  deem  it  his  official  duty  to 
cause  an  officer  to  be  tried.  Considerations  of 
the  greatest  importance  to  the  interests  of  the 
ser\'ice,  of  deference  to  the  wishes  of  the 
accused  himself,  and  the  due  execution  of 
public  justice,  may  induce  and  require  him, 
without  injustice  to  the  accused,  not  to  unite 
several  different  charges  in  one  and  the  same 
prosecution.     (4  Op.    Atty.   Gen.,    410,    414.) 

Consent  on  the  part  of  the  accused  could  not 
give  jurisdiction  if  it  did  not  exist  by  law. 
But  where  such  jurisdiction  exists,  his  wishes 
might  very  properly  influence  the  department 
in  its  discretionary  power  in  arranging  the 
charges  which  it  felt  bound  to  prefer  for  trial. 
(4  Op.  Atty.  Gen.,  410,  414.) 

If  this  article  had  the  effect  of  protecting 
the  accused  from  con\T.ction  upon  additional 
charges  known  to  the  convening  authority 
when  the  former  trial  was  ordered,  it  is  well 
settled  that  the  defense  under  it  could  be  made 
only  by  plea  in  bar,  or  under  the  general  issue 
of  not  guiltv,  and  not  by  plea  in  abatement. 
(4  Op.  Atty.  Gen.,  410,  413.) 

Even  under  this  restrictive  article  a  new 
charge,  in  addition  to  those  exhibited,  may  be 
submitted  to  the  same  court  if  some  witness 
material  to  the  support  of  the  charge,  who  was 
absent,  can  be  produced;  but  the  court  is  not 
to  proceed  with  this  new  charge  without  gi\ing 
the  accused  time  for  his  defense.  Suppose 
that  this  witness  can  not  be  produced?  Can 
it  be  supposed  that  this  article  was  intended 
to  bar  any  future  prosecution  of  the  offense? 
The  charge  is  not  before  the  court;  no  decision 
is  made  on  it;  no  part  of  the  trial  involves  it; 
and  the  finding  of  the  court  does  not  conclude  it, 
but  such  new  charge  may  be  tried  before  an- 


other and  distinct  court-martial.  (4  Op.  Atty. 
Gen.,  410,  414.) 

Lesser  offense  included  in  charge. — 
Where  accused  was  found  not  guilty  of  the 
offense  charged,  but  guilty  of  a  lesser  offense, 
such  finding  was  what  is  known  in  the  admin- 
istration of  criminal  law  as  a  partial  verdict, 
in  which  the  accused  is  acquitted  of  a  part  of 
the  accusation  against  him  and  found  giiilty 
of  the  residue;  as  when  there  is  an  acquittal 
on  one  count  and  a  verdict  of  guilty  on  another; 
or  when  the  charge  is  of  a  higher  degree,  in- 
cluding one  of  a  lesser,  there  may  be  a  finding 
by  a  partial  verdict  of  the  latter;  as  upon  the 
charge  of  burglarj'  there  may  be  a  con\'iction 
for  a  larceny  and  an  acquittal  of  the  nocturnal 
entry ;  so  upon  an  indictment  for  murder  there 
may  be  a  verdict  of  manslaughter,  and  robbery 
may  be  reduced  to  simply  larceny,  and  a  bat- 
tery into  an  assault.  (Dynes  v.  Hoover,  20 
How.,  65,  79;  see  also  note"  to  art.  8,  A.  G.  N.) 

Charging  same  offense  under  t^vo 
articles. — See  note  to  article  22,  A.  G.  N.; 
and  see  note  to  article  14,  A.  G.  N.,  under 
" Discretionaiy  punishment,"  as  to  purdsh- 
ment  on  couAiction  of  two  charges  based  on  the 
same  transaction;  see  also  note  to  article  63, 
A.  G.  N.,  as  to  limitations  of  punishment. 

Charging  offense  previously  punished. — 
See  note  to  article  24,  A.  G.  N.,  as  to  punish- 
ments by  commanding  officer  or  reprimand  by 
Secretary  of  the  NaA-y  not  being  a  bar  to  sub- 
sequent trial  by  court-martial;  see  also  note 
to  article  53,  A.  G.  N.,  as  to  effect  of  disap- 
proval of  former  trial. 

Absent  witness. — See  note  to  Constitu- 
tion, sixth  amendment,  under  "VI.  Con- 
fronting witnesses";  and  see  note  to  art.  57, 
A.  G.  N. 


Art.  44.  [Duty  of  officer  arrested.]  Every  officer  who  is  arrested  for 
trial  shall  deliver  up  his  sword  to  his  commanding  officer  and  confine  himself 
to  the  limits  assigned  him,  on  pain  of  dismissal  from  the  service. —  (17  July, 
1862,  c.  204,  s.  1,  art.  15,  v.  12,  p.  604.) 


See  note  to  article  43,  A.  G.  N.,  as  to  arrest  of 
accused  for  trial. 
Nominal  arrest  of  oflB.cer. — An  officer 
of  the  Navy  against  whom  charges  had  been 
preferred  for  trial  by  comt-martial  was  given 
the  following  order  by  the  Secretary  of  the 
Na\y:  "You  are  placed  under  arrest  and  you 
will  confine  yoiuself  to  the  limits  of  the  city  of 
Washington."  The  facts  showed  that  he  was 
not  under  "physical  restraint"  and  that  the 
above-mentioned  order  did  not  operate  to 
restrain  his  movements  any  more  than  would 


have  been  the  case  had  it  directed  him  to  re- 
main in  W^ashington  to  serve  as  a  member  of  the 
court-martial.  Held,  that  there  was  no  such 
"restraint  of  liberty"  in  this  case  as  to  justify 
the  use  of  habeas  corpus;  and  that  the  fear  of 
being  forcibly  arrested  and  returned  should  he 
leave  the  city  of  Washington,  if  sufficient  to 
keep  the  officer  within  the  limits  of  the  city, 
"is  a  moral  restraint,  which  concerns  his  own 
convenience  and  in  regard  to  which  he  exer- 
cises his  own  \vill. "  (Wales  v.  WTiitney,  114 
U.  S.,  564;  see  note  to  sec.  752,  R.  S.) 


Art.  45.  [Proceedings  of  general  court-martial.]  When  the  proceedings 
of  any  general  court-martial  have  commenced,  they  shall  not  be  suspended 
or  delayed  on  account  of  the  absence  of  any  of  the  members,  provided  five  or 
more  are  assembled;  but  the  court  is  enjoined  to  sit  from  day  to  day,  Sundays 
excepted,  until  sentence  is  given,  unless  temporarily  adjourned  by  the  authority 
which  convened  it.— (17  July,  1862,  c.  204,  s.  1,  art.  16,  v.  12,  p.  604.) 


1029 


Sec.  1624,  Art.  45. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


See  notes  to  articles  45  and  46,  A.  G.  N.,  as  to 
absence  of  members. 

Right  to  speedy  trial. — This  article  in- 
tends to  secure  to  the  accused  a  speedy  and 
impartial  trial  \vhen  charged  with  offenses  and 
jMit  under  arrest,  and  to  give  him  protection 
against  delays  of  justice  and  protracted  arrest. 
It  is  enacted  in  the  spirit  of  the  sixth  article  of 
the  amendments  to  the  Constitution  of  the 
United  States.  (6  Op.  Atty.  Gen.,  200,  207; 
see  note  to  Constitution,  sixth  amendment.) 

Reqviirenient  directory  only. — The  provi- 
sions of  article  45,  A.  G.  N.,  are  directory  only 
and  not  mandatory;  hence  the  adjournment 
of  a  court-martial  from  Tuesday  to  Friday 
without  permission  from  the  convening  author- 
ity, although  an  irregularity,  did  not  invalidate 
tlie  proceedings.  (C.  M.  0.  27,  1898,  pp.  1-2; 
Nay.  Dig.  1916,  p.  20.) 

A  general  court-martial  should  not  adjourn 
over  a  holiday  or  any  other  day  during  a  trial, 
except  Sunday,  without  permission  being  ex- 
pressly granted,,  although  such  action  would 
not  necessarily  invalidate  the  proceedings. 
(C.  M.  O.  51,  1914,  p.  4;  Nav.  Digest,  1916, 
p.  20.) 

Procedure  governed  by  regulations  and 
usage. — -The  "'Regulations  for  the  Adminis- 
tration of  Law  and  Justice,"  estabUshed  by  the 
Secretary  of  the  Navy  with  the  approval  of  the 
President  on  April  15,  1870,  regulating  the  pro- 
cedure of  courts-martial,  have  the  force  of  law. 
(Ex  parte  Reed,  100  U.  S.,  13,  22,  citing  sec. 
1547,  R.  S.;  see  note  to  art.  43,  A.  G.  N.,  under 
"Charging  offenses  not  specifically  provided 
for,"  and  note  to  art.  42,  A.  G.  N.,  under 
"Character  e\idence.") 

The  law  by  which  courts-martial  are  bound 
to  execute  their  duties  and  to  regulate  their 
mode  of  proceeding  in  the  absence  of  positive 
enactments  is ' "  the  general  usage  of  the  military 
ser\T.ce  or  what  may  not  unfittingly  be  called 
the  customary  military  law."  (Smith  v. 
Whitney,  116  U.  S.,  167,  179,  approving.  Dynes 
V.  Hoover,  20  How.,  65,  82;  see  also  note  to  art. 
29 ,  A .  G .  N . ,  as  to  procedure  of  courts  ofinquiry.) 

In  the  absence  of  a  regulatory  statute  the 
proceedings  of  courts-martial  are  controlled 
hy  the  usages  and  customs  of  the  military' 
service,  othenvise  called  customary  military 
law,  and  not  by  the  common-law  rules  appli- 
cable to  the  proceedings  of  civil  courts.  (Kirk- 
man  v.  McClaughry,  160  Fed.  Rep.,  436.) 

Evidence  after  coirrt  cleared. — The  ac- 
cused, charged  with  disobedience  of  orders,  de- 
cUned  to  plead  to  the  charges,  but  objected  to 
the  jurisdiction  of  the  court  on  the  gi-ound  that 
his  term  of  service  expired  pre\dous  to  the  time 
mentioned  in  the  specifications,  and  that  his 
term  of  service  commenced  before  the  act  of 
March  2,  1837  (sec.  1422,  R.  S.),  and  that  there- 
fore he  was  no  longer  amenable  to  the  laws  of 
the  United  States  for  the  government  of  the 
Na\'y.  To  sustain  this  plea  the  accused  offered 
no  evidence  whatever,  nor  was  such  evidence 
offered  to  the  court  in  his  presence  or  while  the 
court  was  in  public  session.  Instead,  immedi- 
ately after  the  plea  was  submitted,  the  record 
shows  that  the  coiirt  was  cleared  to  deliberate 
on  said  plea,  and  that  the  muster  book  and 
transfer  roll  of  a  certain  vessel  were  produced 
by  order  of  the  coiut;  and  that,  it  appearing 


therefrom  that  the  prisoner  entered  the  service 
previous  to  the  act  of  March  2,  1837,  and  that 
his  term  of  service  expired  on  October  20,  1839, 
it  was  determined  that  the  court  was  not  in- 
vested with  any  legal  authority  over  the  person 
or  property  of  the  prisoner  and  could  exercise 
no  jurisdiction  over  him  whatever.  Held,  that 
the  proceedings  of  the  court  were  irregular  in 
receiving  evidence  after  the  court  was  cleared. 
(3  Op.  Atty.  Gen.,  545.) 

See  below,  "Public  sessions." 

Presence  of  accused  during  trial. — In 
cases  where  the  prisoner's  life  or  liberty  is  in 
peril,  he  must  be  present  during  the  whole  of 
the  trial  and  until  final  judgment.  If  absent, 
there  is  a  want  of  jurisdiction  of  the  person,  and 
the  court  can  not  proceed  with  the  trial  or  re- 
ceive the  verdict  or  pronounce  the  final  judg- 
ment. A  prisoner  in  custody  can  not  waive 
anything  by  his  absence.  In  the  case  of  a  naval 
prisoner,  it  is  even  more  important  that  he  be 
present  at  his  trial  by  court-martial.  (Weirman 
V.  U.  S.,  36  Ct.  Cls.,  236.) 

But  where  the  offense  is  trivial,  and  Ufe  or 
liberty  is  not  in  jeopardy,  the  rule  is  to  be  re- 
laxed; accordingly,  held,  that  the  proceedings 
of  a  naval  court-martial  would  not  be  declared 
invaUd  by  reason  of  the  absence  of  the  accused 
where  the  offense  and  punishment  were  trivial. 
(Weirman  v.  U.  S.,  36  Ct.  Cls.,  236.) 

See  note  to  Constitution,  fifth  amendment, 
under  "V.  Presence  of  accused  at  trial." 

Public  sessions. — The  statutes  regulating 
the  covu-se  of  procedure  in  military  courts  show 
that,  in  contemplation  of  law,  these  courts 
stand  on  the  same  footing  as  other  judicial  tri- 
bunals of  the  country.  Their  sittings,  for  exam- 
ple, are  free  to  the  attendance  of  the  pubUc,  like 
those  of  other  coin-ts,  and,  as  if  to  guard  against 
improper  secrecy  in  the  case  of  courts-martial 
held  in  the  Army,  the  statute  expressly  pro- 
vides that  no  proceedings  or  trials  in  such  courts 
shall  be  carried  on  except  between  the  hours  of 
8  in  the  morning  and  3  in  the  afternoon,  unless 
in  cases  which  in  the  opinion  of  the  officer  ap- 
pointing the  court  requii-e  immediate  example. 
(11  Op.  Atty.  Gen.,  137,  141.) 

That  a  court-martial  trjdng  a  petty  ofiicer  of 
the  Navy  permitted  the  judge  advocate  to  be 
present  for  a  short  time  during  a  closed  session 
of  the  court,  in  violation  of  the  act  of  July  27, 
1892  (27  Stat.,  277),  though  a  disregard  of  the 
defendant's  legal  rights,  was  nevertheless  an 
error  in  procedure  only,  and  was  not,  therefore, 
a  gi'ound  for  a  wiit  of  habeas  corpus.  (Ex  paite 
Tucker,  212  Fed.  Rep.,  569.  Note.— The  act 
cited  was  entitled  "An  act  to  amend  the  Arti- 
cles of  War,  and  for  other  purposes,"  and  did 
not  relate  to  naval  courts-martial.  Similar 
provisions  for  the  Navy  was  then  contained  in 
Navy  regulations  since  embodied  in  "Naval 
Courts  and  Boards,"  and  not  in  any  statute.) 

See  above,  "Evidence  after  court  cleared." 

Defense  of  insanity. — That  a  defendant  on 
trial  for  desertion  before  a  court-martial  was 
shown  to  have  been  in  a  "haze"  or  "stupor" 
at  the  time  in  question,  held  insufficient  under 
a  plea  of  not  guilty  to  raise  the  issue  of  insanity 
which  would  deprive  the  court  of  jurisdiction 
under  regulations  contained  in  the  Army  man- 
ual for  courts-martial.  (U.  S.  v.  Hunt,  254 
Fed.  Rep.,  365.) 


1030 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  46. 


"Irresistible  impulse"  is  not  a  defense  to 
crime  where  accused  had  mental  capacity  to 
distinguish  between  right  and  wi'ong,  and  to 
know  that  the  particular  act  charged  was  wi'ong. 
(C.  M.  O.  24,  1914.) 

If  the  court-martial  is  of  opinion  that  ac- 
cused is  insane  during  his  trial,  its  duty  is  to 
suspend  proceedings  and  inform  the  convening 
authority  of  its  opinion  in  order  that,  if  the  cir- 
cumstances warrant,  a  board  of  medical  survey 
may  be  ordered.  \Mien,  instead  of  doing  this, 
the  court  proceeds  -vvith  the  trial  and  records 
findings  on  the  charges  and  specifications,  it  is 
the  duty  of  the  convening  authority  not  to  ac- 
cept the  court's  findings;  and  the  record  should 
be  returned  to  the  court  in  order  that  such  find- 
ings may  be  revoked,  as  there  has  been  no  legal 
trial,  the  accused  has  not  been  placed  in  jeop- 
ardy, and  the  status  of  his  case  is  the  same  as 
though  he  had  never  been  arraigned.  (C.M.O. 
24,  1914.) 

Absence  of  member  as  affecting  rank  of 
majority. — An  officer  of  the  Navy  was  tried 
by  a  general  court-martial  composed  of  13 
members,  six  of  whom  were  junior  in  rank  to 
the  accused  and  seven  of  them,  including  the 
president,  were  his  seniors.  After  the  trial 
commenced,  one  of  the  members  who  was 
senior  to  the  accused  became  sick,  and  the 
court  proceeded  in  his  absence,  more  than  one- 
half  of  the  remaining  members,  exclusive  of 


the  president,  being  junior  to  the  accused. 
The  absent  member  later  returned,  but  was  not 
permitted  by  the  court  to  resume  his  seat  as  a 
member.  The  accused  was  sentenced  to  be 
dismissed,  which  sentence  was  duly  executed. 
Held,  that  the  court  was  organized  and  com- 
menced its  proceedings  in  strict  conformity 
with  the  Articles  for  the  Government  of  the 
Navy  (art.  39,  A.  G.  N.,)  and  had  complete 
jurisdiction;  and  that  under  the  said  articles 
(art.  45,  A.  G.  N.)  it  was  required  to  continue 
its  sessions  notwithstanding  the  absence  of  any 
member  so  long  as  five  remained.  The  court, 
therefore,  had  complete  jurisdiction  while  the 
member  in  question  was  absent.  It  is  doubtful 
whether  the  court  had  lawful  authority  to  ex- 
clude him  on  his  return,  but  such  action  did 
not  invalidate  the  proceedings.  The  provi- 
sion requiring  a  majority  to  be  senior  in  rank  to 
the  accused  is  confined  to  the  organization  of 
the  court,  and  does  not  extend  to  its  subsequent 
proceedings.  (7  Op.  Atty.  Gen.,  98;  see  arts. 
46  and  47,  A.  G.  N.,  and  notes  thereto.) 

Court  reduced  below  minimum. — See 
note  to  article  46,  A.  G.  N. 

Errors  of  procedure  not  fatal. — See  note 
to  article  53,  A.  G.  N.,  and  see  notes  above 
under  this  article. 

Evidence  before  courts-martial. — See 
note  to  article  42,  A.  G.  N. 


Art.  46.  [Absence  of  members.]  No  member  of  a  general  com't-martial 
shall,  after  the  proceedings  are  begun,  absent  himself  therefrom,  except  in  case 
of  sickness,  or  of  an  order  to  go  on  duty  from  a  superior  officer,  on  pain  of  being 
cashiered.— (17  July,  1862,  c.  204,  s.  1,  art.  16,  v.  12,  p.  604.) 


Court  reduced  beloAv  minimum. — If  dur- 
ing the  pendency  of  a  trial  before  a  court 
martial  composed  of  five  members,  one  of  its 
members  fall  sick  and  be  thereby  disabled  from 
sitting  with  the  court  for  several  days,  the  re- 
maining four  members  may  adjourn  the  court 
from  day  to  day  until  he  is  able  to  attend  with 
them  again  to  complete  the  trial.  Of  course, 
the  court  would  not  consent  to  wait  too  long 
on  account  of  the  absence  of  a  member;  if  the 
delay  became  inconveniently  protracted,  they 
would  not  fail  to  report  it  to  the  proper  authority ; 
or  if  death  ensued,  to  consider  the  commission 
or  warrant  as  at  an  end.     (4  Op.  Atty.  Gen.,  17.) 

Effect    of    unauthorized    absence. — The 

Crision  which  forbids  a  member  to  absent 
self  except  in  case  of  sickness  or  in  obedi- 
ence to  orders  is  one  for  the  regulation  of  the 
conduct  of  the  members  themselves,  and  per- 
sonally subjects  them  to  censure;  but  it  has  no 
bearing  upon  the  question  of  the  jurisdiction 
of  the  court  or  the  legality  of  its  proceedings. 
(7  Op.  Atty.  Gen.,  98.) 

A  member  of  the  court  may  willfully  absent 
himself  and  be  tried  and  cashiered  for  it,  with- 
out in  the  least  affecting  the  legality  of  the  pro- 
ceedings of  the  court.     (7  Op.  Atty.  Gen.,  98.) 

The  Articles  for  the  Government  of  the  Navy 
(art.  45,  A.  G.  N.)  makes  the  trial  valid  if  five 
members  assemble.  It  is  contemplated  that 
members  may  be  ordered  elsewhere.  The  pro- 
%-ision  for  this  penalty  shows  that  it  was  antici- 
pated   members    might   be   absent   for    other 


causes,  upon  which  the  law,  instead  of  declare 
ing  the  proceedings  void  in  such  case,  make, 
them  valid  and  punishes  the  offending  absentee 
(7  Op.  Atty.  Gen.,  98.) 

The  cause  of  the  absence,  as  distinguished 
from  the  absence  itself,  does  not  in  any  way 
affect  the  question  of  legality  or  jurisdiction. 
It  certainly  might  when  the  absent  member  is 
called  upon  to  justify  his  own  acts,  but  not  as 
between  th^  accused  and  the  law.  (7  Op. 
Atty.  Gen.,  98.) 

A  member  absent  on  account  of  sickness  was 
not  permitted  by  the  court,  upon  his  return,  to 
resume  his  seat.  This  was  error  on  the  part  of 
the  court,  but  it  does  not  follow  from  tliis  that 
the  court  lost  jurisdiction  over  the  accused  and 
that  their  subsequent  proceedings  were  void. 
They  may  have  acted  irregularly  or  illegally 
toward  their  colleague  without  rendering  their 
subsequent  acts  as  to  the  accused  void.  (7  Op. 
Atty.  Gen.,  98.) 

Absence  at  revision  of  proceedings. — • 
It  makes  no  difference  whether  the  absence 
of  a  member  or  members  happens  pending  the 
original  proceedings  or  on  the  meeting  for 
revision.  In  either  contingency  it  is  one  and 
the  same  court  with  unbroken  continuity  of 
existence  and  unimpaired  capacity  as  to  the 
same  subject  matter.     (7  Op.  Atty.  Gen.,  338.) 

Where  a  general  court-martial  duly  organized 
by  order  of  the  Secretary  of  War  was,  after  re- 
porting, recalled  by  him  to  reassemble  to  revise 
its  sentence  and  on  reassembling  two  of  the 


1031 


Sec.  1624,  Art.  47. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


original  members  were  absent  (for  whatever 
cause),  but  a  legal  quorum  of  the  court  still 
remained,  held  ih&t  the  absence  of  two  members 
at  the  reassembling  of  the  court  did  not  impair 
its  jurisdiction  or  otherwise  affect  its  power  to 
review  the  sentence;  and  that  it  still  was  the 
same  continuous  and  competent  court  as  when 
it  first  assembled  under  the  order  of  the  Secre- 
tary.    (7  Op.  Atty.  Gen.,  338.) 

The  law  makes  provision  as  to  the  number  of 
officers  to  be  ordered  on  a  general  court-martial, 
but  none  as  to  the  number  who  must  actually 
attend  and  participate  in  its  proceedings  be- 
yond a  fixed  minimum.  (7  Op.  Atty. Gen.,  338.) 

See  note  to  article  53,  A.  G.  N.,  as  to  pro- 
ceedings in  revision. 


"Cashiered"  and    "dismissed"      distin- 

fuished. — In  Great  Britain  it  seems  that  a 
istinction  is  recognized  to  exist  between  these 
terms,  the  one  "cashiered,"  including  an  in- 
capacity for  future  service.  (2  Op.  Atty.  Gen., 
286.) 

Where  an  article  of  war  under  which  an 
accused  was  tried  prescribed  as  the  punishment 
of  his  offense  that  he  shall  be  "dismissed  from 
service, ' '  the  sentence  that  he  be  dismissed  from 
the  service,  instead  of  that  he  be  cashiered,  was 
conformable  to  law,  and  in  such  case  the  dis- 
tinction between  the  two  terms  is  immaterial. 
(2  Op.  Atty.  Gen.,  286.) 

For  other  cases,  see  notes  to  articles  45  and 
47,  A.  G.  N. 


Art.  47.  [Return  of  absent  member;  witness  recalled.]  Whenever  any 
member  of  a  court-martial,  from  any  legal  cause,  is  absent  from  the  court 
after  the  commencement  of  a  case,  all  the  witnesses  who  have  been  examined 
during  his  absence  must,  when  her  is  ready  to  resume  his  seat,  be  recalled  by 
the  court,  and  the  recorded  testimony  of  each  witness  so  examined  must  be 
read  over  to  him,  and  such  witness  must  acknowledge  the  same  to  be  correct 
and  be  subject  to  such  further  examination  as  the  said  member  may  require. 
Without  a  compliance  with  this  rule,  and  an  entry  thereof  upon  the  record,  a 
member  who  shall  have  been  absent  during  the  examination  of  a  witness  shall 
not  be  allowed  to  sit  again  in  that  particular  case. —  (17  July,  1862,  c.  204,  s.  1, 
art.  17,  V.  12,  p.  605.) 

amined  in  the  presence  of  the  judge  is  one  that 
can  not  be  safely  departed  from.  The  judg- 
ment which  we  form  upon  testimony  is  greatly 
dependent  upon  the  conduct  of  the  witness  dur- 
ing the  examination  and  upon  the  manner  in 
which  that  testimony  is  delivered.  It  is  the 
right  of  an  accused  person  that  the  e\ddence  in 
his  case  should  be  given  in  the  presence  of  all 
his  judges;  and  it  is  much  more  important  to 
secure  the  correct  administration  of  public  jus- 
tice in  this  regard  than  to  enforce  punishment 
in  any  particular  cases.  (2  Op.  Atty.  Gen 
414.) 

Could  not  resume  seat  in  absence  of  leg- 
islation.--As  to  whether  a  member  of  a  naval 
court-martial  who  participated  in  the  proceed- 
ings of  the  same  at  the  commencement  of  its 
sitting,  but  who,  from  sickness,  had  been  unable 
to  attend  during  the  trial  of  the  whole  case, 
which  was  concluded  in  his  absence,  could 
afterwards,  on  recovering  his  health,  resume 
his  seat  again  as  a  member  of  the  court  for  the 
next  trial  without  a  new  precept  issued,  should 
be  decided  according  to  the  settled  practice  in 
such  cases.  As  the  practice  has  been  to  regard 
the  member  thus  situated  as  disqualified,  the 
executive  department  should  be  governed  by 
the  precedents  so  established.  Certainly  he 
could  not  be  permitted  to  take  his  seat  in  a  case 
aheady  pending.     (4  Op.  Atty.  Gen.,  7.) 

It  is  irregular  for  a  member  of  a  court-martial 
who  has  been  absent  during  a  portion  of  the 
trial,  and  who  did  not  hear  the  witnesses  testify, 
to  take  part  in  sentencing  the  accused.  In  this 
case  the  sentence  was  pronounced  by  five  offi- 
cers, one  of  whom  had  been  absent  from  the 
coiirt  several  days  during  the  trial  and  during 
the  examination  of  witnesses.    The  record  of  the 


Member  absent  at  commencement  of 
proceedings. — \\Tiere  a  general  court-martial 
has  been  ordered  by  the  Secretary  of  the  Navy 
and  the  names  of  officers  and  supernumeraries 
to  compose  it  are  set  forth  in  the  warrant,  and, 
by  reason  of  nonattendance  of  one  of  the  officers 
on  the  first  day  a  supernumerary  takes  his 
place  and  the  court  thus  organized  proceeds  to 
business,  the  absent  member  can  not  properly 
thereafter  be  added  to  the  court  upon  his  arrival 
unless  the  case  on  trial  has  been  disposed  of,  if 
at  all.  (1  Op.  Atty.  Gen.,  698,  construing 
articles  of  April  23,  1800,  2  Stat.,  51.  In  this 
case  the  order  convening  the  court  pro\dded 
that  it  was  to  consist  of  seven  members  named 
therein  and  three  supernumeraries  also  named 
therein  or  any  five  or  more  of  them.) 

There  is  nothing  in  the  acts  of  Congress  on 
this  subject  nor  in  any  of  the  analogies  of  the 
law  in  relation  to  civil  tribunals,  which  author- 
izes a  newly  arrived  member  to  be  superadded 
at  all  to  a  court  which  has  been  once  legally 
organized.     (1  Op.  Atty.  Gen.,  698.) 

The  39th  article  of  the  Rules  and  Regula- 
tions for  the  Government  of  the  Navy  (act  Apr. 
23,  1800,  2  Stat.,  51 ),  seems  to  conteinplate  the 
unity  and  immutabihty  of  a  general  court- 
martial  which  shall  have  been  once  constituted 
and  shall  have  commenced  its  session.  The 
members  whose  absence  is  therein  spoken  of  are 
the  members  who  shall  have  qualified  as  mem- 
bers of  the  court,  not  those  who  shall  merely 
have  been  named  in  the  warrant  as  members. 
(1  Op.  Atty.  Gen.,  698.  The  article  referred 
to  contained  the  same  provisions  as  articles 
45  and  46  of  secrion  1624,  R.  S.) 

Importance  of  memlDers  hearing  testi- 
mony.— The  rule  that  \\itnesses  should  be  ex- 


1032 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  48. 


examination  of  these  witnesses  was  read  to  him 
and  his  judgment  was  consequently  founded 
upon  the  testimony  of  witnesses  who  had  not 
been  examined  in  his  presence.  If  he  was  thus 
disqualified  to  sit  in  judgment  upon  the  ac- 
cused, there  was  no  competent  tribunal  to 
award  sentence  against  him:  Held,  that  the  offi- 
cer was  disqualified  to  pronounce  judgment  in 
this  case ;  and  that  the  sentence  was  illegal  and 
void ;  that  the  accused  is  entitled  to  be  restored 
to  his  rights  as  if  such  sentence  had  not  been 
pronounced  or  approved .  ( 2  Op .  Atty  .Gen. ,  414 . ) 
Error  of  court  in  excluding  member  on 
return. — In  practice  it  is  unusual  for  members 
who  have  not  heard  the  whole  trial  to  partici- 
pate in  giving  judgment;  but  there  is  no  law  to 
prohibit  their  doing  so,  or  to  compel  them  if 
they  refuse.  It  is  true  that  not  having  heard 
a  portion  of  the  witnesses  testify,  so  as  to 
judge  of  their  credibility  from  their  appear- 
ance and  manner  of  testiiying,  a  member  who 
had  been  absent  on  account  of  sickness  was 
without  some  of  the  means  of  proper  judgment. 
The  case  might  have  turned  upon  the  credi- 
bility of  a  ^\'itness  examined  when  he  was  ab- 
sent. The  appearance  and  manner  of  the  wit- 
ness might  have  concluded  that  question.  No 
mere  subsequent  reading  of  the  evidence  can 
supply  full  means  of  knowledge  in  this  respect. 
However,  held,  that  it  was  error  for  the  court  to 
exclude  such  member  from  resuming  his  seat, 
as  the  court  is  nowhere  clothed  with  power  to 
expel  a  fellow  member;  and  that  whether  or  not 
the  absent  member  shall  act  upon  his  return 
must  depend  upon  his  own  views  of  propriety 


and  not  upon  those  of  the  court.     (7  Op.  Atty. 
Gen.,  98;  see  note  to  art.  46,  A.  G.  N.) 

Consent  of  accused. — Where  the  question 
was  raised  as  to  the  right  of  a  member  to  resume 
his  seat  after  being  absent  during  a  portion  of 
the  trial,  it  was  considered  so  far  doubtful  as  to 
induce  the  accused  to  tender  his  consent  to 
waive  all  question  as  to  this  point,  and  the  mem- 
ber was  accordingly  not  permitted  by  the  court 
to  resume  his  seat.  Held,  that  this  action  of  the 
accused  could  neither  confer  power  upon  the 
member  to  resume  his  seat,  nor  affect  the  juris- 
diction or  authority  of  the  coiu-t  to  proceed 
without  him.  These  depended  upon  the  law 
and  not  upon  the  act  of  the  accused.  (7  Op. 
Atty.  Gen.,  98,  102.) 

Irregularities  not  fatal  —The  absence  of 
a  member  of  the  court  during  the  trial  of  the  ac- 
cused, and  the  erroneous  action  of  the  remaining 
members  in  excluding  him  upon  his  return,  if 
presented  to  the  President  as  the  ground  of  a 
new  trial,  might  or  might  not  have  been  worthy 
of  consideration  in  that  relation.  It  was  a  mere 
incidental  irregularity  in  form,  wholly  inde- 
j  pendent  of  the  merits  of  the  case,  and  might 
j  then  have  been  cured.  But  after  the  sentence 
of  dismissal  has  been  confirmed  and  executed, 
it  is  too  late  for  the  accused  to  raise  the  question 
of  such  irregularity,  just  as  it  is  then  too  late  for 
the  Government  to  take  lawful  steps  in  the 
premises  for  the  further  investigation  of  the 
merits,  which,  if  the  question  had  been  made 
drior  to  the  discharge  of  the  court  and  the  ap- 
proval of  its  sentence,  might  have  been  done. 
(7  Op.  Atty.  Gen.,  98.) 


Art.  48.  [Suspension  of  pay.]  Whenever  a  court-martial  sentences  an 
officer  to  be  suspended,  it  may  suspend  his  pay  and  emoluments  for  the  whole 
or  any  part  of  the  time  of  his  suspension. —  (17  July,  1862,  c.  204,  s.  1,  art.  18, 
12,  p.  605.) 


V. 


When  sentence  effective. — The  effect 
of  a  sentence  of  a  court-material  suspending 
from  the  service  for  three  years  "from  this 
day,"  upon  hah  pay,  a  lieutenant  of  the 
Marine  Corps,  and  ordering  a  reprimand  by  the 
Secretary  of  the  Navy,  is  to  suspend  half  the 
officer's  pay  from  the  date  of  the  confirmation 
of  the  sentence,  forward,  during  the  term  of 
three  years.  Until  the  confirmation  he  is  en- 
titled to  receive  full  pay  as  before  trial.  The 
authority  of  a  naval  court-martial  to  affect  by 
its  sentence  the  pay  of  an  officer  subject  to  its 
jurisdiction  is  conferred  by  the  act  of  April  23, 
1800,  article  40  (2  Stat.,  51;  art.  48,  sec.  1624, 
R.  S.).  The  limitation  imposed  by  this  article 
is  clear,  and  accurately  defined.  The  power 
of  a  court  to  suspend  the  pay  and  emoluments 
of  an  officer  does  not  extend  beyond  the  time 
of  his  suspension  from  service.  It  is  incident 
to  that  suspension  from  service,  and  can  only 
be  coextensive  in  point  of  time  with  the  sus- 
pension. (4  Op.  Atty.  Gen.,  323;  see  art.  53, 
A.  G.  N.,  as  to  confirmation  of  sentence.) 

Suspension  "with  pay. — A  sentence  of 
suspension,  merely,  by  a  naval  court-martial 
does  not  deprive  the  party  of  pay  and  emolu- 
ments.    (6  Op.  Atty.  Gen.,  200.) 

Officers  and  enlisted  men  in  the  naval  serv- 
ice do  not  inciu"  any  forfeiture  or  loss  of  pay 
by  confinement  or  suspension  from  duty  under 


sentence  of  a  court-martial  unless  the  forfeiture 
or  loss  be  imposed  by  the  sentence.  (15  Op. 
Atty.  Gen.,  175.) 

See  note  to  article  54,  A.  G.  N .,  as  to  remission 
of  part  of  sentence. 

Forfeiture  of  allowances. — When  an  of- 
ficer in  the  Army  is  suspended  from  duty  he 
is  not  entitled  to  allowances.  In  this  case  the 
officer  was  sentenced  to  be  suspended  from 
rank  and  duty  for  12  years,  and  "to  forfeit 
one-half  of  his  monthly  pay  every  month  for 
the  same  period."  (Swaim  v.  U.  S.,  165  U.  S., 
553.) 

Extra  pay  on  discharge. — Where  a  vol- 
unteer officer  in  the  military  service  of  the 
United  States  was  sentenced  by  a  court-martial 
to  suspension  from  rank  and  pay  for  a  certain 
period,  before  the  expiration  of  which  he  was 
mustered  out  of  the  service  and  discharged, 
held  that  the  sentence  did  not  work  a  forfeiture 
of  the  three  months'  extra  pay  provided  by 
the  act  of  March  3, 1865,  section  4  (13  Stat.,  497), 
for  volunteer  officers  upon  being  mustered  out 
of  the  service,  but  merely  deprived  the  officer, 
dming  his  continuance  in  service  and  while 
it  remained  in  force,  of  his  regular  current  pay. 
(13  Op.  Atty.  Gen.,  16.) 

Suspension;  continuing  punishment;  ef- 
fect of  promotion. — See  note  to  article  54, 
A.  G.  N. 


1033 


Sec.  1624,  Art.  52. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Art.  49.  [Prohibited  punishments.]  In  no  case  shall  punishment  by  flog- 
ging, or  by  branding,  marking,  or  tattooing  on  the  body  be  adjudged  by  any 
court-martial  or  be  inflicted  upon  any  person  in  the  Navy. —  (17  July,  1862, 
c.  204,  s.  1,  ai-t.  8,  v.  12,  p.  603.     6  June,  1872,  c.  316,  s.  2,  v.  17,  p.  261.) 


See  note  to  article  30,  A.  G.  N.,  as  to  restric- 
tion upon  use  of  irons;  and  see  note  to 


article  63,  A.  G.  N.,  as  to  cruel  and  un- 
usual punishments. 


Art.  50.  [Sentences,  how  determined.]  No  person  shall  be  sentenced  by 
a  com-t-martial  to  suffer  death,  except  by  the  concurrence  of  two-thirds  of  the 
members  present,  and  in  the  cases  where  such  punishment  is  expressly  provided 
in  these  articles.  All  other  sentences  may  be  determined  by  a  majority  of 
votes.— (17  July,  1862,  c.  204,  s.  1,  art.  19,  v.  12,  p.  605.) 

Art.  51.  [Adequate  punishment;  recommendation  to  mercy.]  It  shall  be 
the  duty  of  a  court-martial,  in  all  cases  of  conviction,  to  adjudge  a  punishment 
adequate  to  the  nature  of  the  offense;  but  the  members  thereof  may  recommend 
the  person  convicted  as  deserving  of  clemency,  and  state,  on  the  record,  the 
reasons  for  so  doing. —  (17  July,  1862,  c.  204,  s.  1,  art.  21,  v.  12,  p.  605.) 

Art.  52.  [Authentication  of  judgment.]  The  judgment  of  every  court- 
martial  shall  be  authenticated  by  the  signature  of  the  president,  and  of  every 
member  who  may  be  present  when  said  judgment  is  pronounced,  and  also  of 
the  judge-advocate.— (17  July,  1862,  c.  204,  s.  1,  art.  22,  v.  12,  p.  605.) 


Death  of  member  before  sig^ning  rec- 
ord.— The  death  of  one  of  the  members  of  a 
general  court-martial  after  sentence  had  been 
imposed  but  before  he  had  appended  his  signa- 
ture to  the  sentence  as  required  by  article  52, 
A.  G.  N.,  does  not  render  the  sentence  void. 
It  is  sufficiently  authenticated  if  attested  by 
the  other  members  of  the  court.  (23  Op.  Atty. 
Gen.,  550.) 

Tliis  proxision  concerning  authentication  is 
embraced  in  the  British  naval  laws  from  which 
many  of  ours  ha^'e  been  borrowed .  The  British 
article  is  as  follows:  "If  the  prisoner  be  found 
guilty  of  a  breach  of  any  of  the  articles  of  war 
established  by  law,  the  court  shall  consider 
and  determine  the  punishment  proper  to  be 
inflicted  in  accordance  therewith.  The  judge 
advocate  shall  draw  up  the  sentence  accord- 
ingly, being  careful  to  specifj^  therein  the 
charge,  or  substance  of  it;  and  the  same  shall 
be  signed  by  every  member  of  the  court,  by 
way  of  attestation,  notwithstanding  any  differ- 
ence of  opinion  thei'e  may  have  been  among 
the  members."     (23  Op.  Atty.  Gen.,  550.) 

The  purpose  of  the  British  and  American 
articles  is  doubtless  the  same.  They  are 
intended  to  direct  the  officers  of  the  court  to 
sign  the  sentence,  notwithstanding  they  may 
not  have  concurred  in  the  decision,  in  order 
that  the  sentence  may  be  known  with  cer- 
tainty to  have  been  correctly  recorded.  The 
article  orders  officers,  under  military  discipline, 
to  sign  the  sentence.  It  does  not  say  that  the 
fact  that  such  sentence  has  been  pronounced 
must  be  taken  as  nonexistent,  however  clearly 
it  can  be  proved,  if  they  or  some  of  them  are 
not  in  a  position  to  sign  as  directed.  It  was  not 
the  intention  that  in  a  case  like  the  present  the 
trial  and  sentence  should  go  for  naught.  (23 
Op.  Atty.  Gen.,  550.) 


Record  should  contain  all  the  evi- 
dence.— As  no  sentence  of  a  naval  court-martial 
can,  under  the  Articles  for  the  Government  of 
the  Na\'y,  be  carried  into  execution  until  con- 
firmed by  the  commander  of  the  fleet  or  by  the 
officer  ordering  the  court  or  in  certain  cases  by 
the  President  of  the  United  States  (act  Apr. 
23,  1800,  2  Stat.,  45),  it  is  essential  that  the 
record  should  contain  all  the  e\idence;  and  in 
order  to  a  confirmation  such  e^-idence  should 
sustain,  in  the  opinion  of  the  superior  officer, 
the  finding  of  the  court.  Tlie  mere  statement 
by  the  court  of  the  inferences  which  it  drew 
from  the  e\'idence,  unaccompanied  by  the  e\i- 
dence  itself,  was  a  serious  defect  in  the  record, 
and  the  commanding  officer  was  correct  in  not 
appro\'ing  the  judgment  of  the  coiut.  (3  Op. 
Atty.  Gen.,  545;  compare  note  to  Art.  53,  A. 
G.  N.,  under  '.'Approval  of  sentence  and  not  of 
whole  proceedings  required.'') 

Responsibility  of  court  and  judge  advo- 
cate.— The  court  and  judge  advocate  are  re- 
quired by  law  to  keep  a  true  record  of  the  pro- 
ceedings. This  is  not  made  the  duty  of  any 
other  officer  or  sen'ant  of  the  Government. 
The  responsibility  and  the  power  both  belong 
to  these  officers  and  not  to  anv  other.  (23  Op. 
Atty.  Gen.,  23,  27.) 

Record  must  show  jurisdictional 
facts. — A  court-martial  organized  under  the 
laws  of  the  United  States  is  a  court  of  special 
and  limited  jurisdiction.  It  is  called  into  ex- 
istence for  a  special  pui'pose  and  to  perform  a 
particular  duty.  When  the  object  of  its  crea- 
tion has  been  accomplished  it  is  dissolved. 
To  give  effect  to  its  sentence  it  must  appear 
affirmatively  and  unequivocally  that  the  court 
was  legally  constituted;  that  it  had  jurisdiction; 
that  all  the  statutory  regulations  governing  its 
proceedings  had  been  complied  with;  and  that 


1034 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  52. 


its  sentence  was  conformable  to  law.  There 
are  no  presumptions  in  its  favor  so  far  as  these 
matters  are  concerned.  It  is  not  sufficient  that 
jurisdiction  may  be  inferred  argumentatively 
from  its  averments.  Their  authority  is  statu- 
tory and  the  statute  under  which  they  proceed 
must  be  followed  throughout.  The  facts  neces- 
sary to  show  their  jurisdiction  and  that  theu' 
sentences  were  conformable  to  law  must  be 
stated  positively ;  and  it  is  not  enough  that  they 
may  be  inferred  argumentatively.  (Runkle  v. 
U.S.,  122  U.S.,  543,  555.) 

Omission  of  record  to  shew  jurisdic- 
tional facts. — Where  the  due  convocation 
of  a  court-martial  with  jurisdiction  to  try 
offenses  of  the  class  in  question  is  established 
on  the  face  of  its  record,  the  existence  of  a  par- 
ticular fact  not  so  shown,  but  acted  upon  by 
the  coiirt-martial  and  necessary  to  its  jurisdic- 
tion over  the  particular  case,  may  be  proven 
in  support  of  its  judgment  upon  a  collateral 
attack.  Such  evidence  does  not  change  the 
court-martial  record,  but  simply  meets  the 
collateral  attack  by  showing  that  at  the  time 
of  trial  the  basis  existed  for  the  exertion  by  the 
court  of  the  authority  conferred  upon  it.  Gen- 
eral expressions  found  in  some  of  the  reported 
cases  to  the  effect  that,  wherever  a  fact  upon 
which  the  jurisdiction  of  a  court  of  limited 
jurisdiction  depends  is  questioned,  it  must 
appear  in  the  record  that  such  fact  was  estab- 
lished, should  be  limited  in  accordance  with 
this  ruling.  (Givens  v.  Zerbst,  255  U.  S.  11,  20, 
affirming  ex  parte  Gi\dns,  262  Fed.  Rep.,  702.) 

The  complete  right  to  collaterally  assail  the 
existence  of  every  fact  which  was  essential  to 
the  exercise  by  a  court-martial  of  its  authority, 
whether  appearing  on  the  face  of  the  record  or 
not,  is  wholly  incompatible  with  the  concep- 
tion that,  when  a  collateral  attack  is  made,  the 
face  of  the  record  is  conclusive.  Such  expres- 
sions as  to  the  face  of  the  record  contemplate, 
not  the  record  assailed  by  the  collateral  attack, 
but  the  record  established  as  the  result  of  the 
proof  heard  on  such  attack.  (Givens  v.  Zexbst, 
255  U.  S.,  11.  20,  affirming  ex  parte  Givins,  262 
Fed.  Rep.,  702.) 

In  a  habeas  corpus  proceeding  evidence  was 
admissible  to  prove  the  military  status  of  the 
relator  at  the  time  of  his  trial  and  conxdction  by 
an  Army  court-martial,  where  the  record  of  the 
court-martial  was  silent  on  the  subject  beyond 
shomng  that  he  was  charged  as  a  captain  in  the 
Army.  (Givens  v.  Zerbst,  255  U.  S.  11,  affirm- 
ing ex  parte  Givens,  262  Fed.  Rep.,  702.) 

It  is  not  necessary  that  every  fact  essential 
to  the  jiirisdiction  of  a  court-martial  and  the 
competency  and  qualifications  of  its  members 
should  be  set  out  in  the  record  in  each  case,  but 
with  respect  to  formal  matters  relating  to  the 
creation  of  the  court,  such  as  a  recital  that  an 
order  of  the  War  Department  was  "by  direction 
of  the  President, ' '  or  the  designation  of  the  rank 
and  official  position  of  officers,  regularity  will  be 
presumed.  (McRae  v.  Henkes,  273  Fed.  Rep., 
108.) 

That  an  order  convening  a  court-martial  was 
not  signed  personally  by  the  department  com- 
mander, but  by  a  staff  officer  by  his"command," 
and  that  the  department  of  which  he  was  in 
command  did  not  appear  below  his  personal 
signature,   held  not  to  render  it  invalid;  the 


objection  related  to  a  matter  of  form  and  not  of 
substance.  (McRae  v.  Henkes,  273  Fed.  Rep., 
108.) 

That  the  record  of  the  com"t-martial  did  not 
show  that  the  retired  officers  who  served  as 
members  had  been  regularly  detailed  to  active 
duty  with  their  consent  or  as  otherwise  provided 
by  statute  did  not  render  the  judgment  and 
sentence  void  and  subject  to  collateral  attack. 
Indeed,  such  facts  could  not  appropriately  be 
made  a  part  of  the  record  no  more  than  facts 
shomng  that  the  members  of  the  court  had  been 
commissioned  as  officers.  (McRae  v.  Henkes, 
273  Fed.  Rep.,  108.) 

Although  it  was  necessary  that  each  member 
of  the  court  be  fully  competent  to  sit,  the  order 
convening  the  court  and  appointing  the  detail, 
and  the  resulting  service  and  action  taken  by 
those  detailed,  raise  the  presumption  that  its 
members  were  competent  and  possessed  all  the 
necessary  qualifications  entitling  them  to  sit  as 
such.  (McRae  v.  Henkes,  273  Fed.  Rep.,  108, 
reversing  ex  parte  Henkes,  267  Fed.  Rep.,  276.) 

Where  the  record  of  a  trial  before  a  court- 
martial  is  defective,  in  faUing  to  show  who  was 
the  originator  or  signer  of  the  charges  against 
the  accused,  and  who  is  to  be  treated  legally 
as  the  accuser  or  prosecutor,  evidence  aliunde 
is  admissible  to  supply  the  information  when 
the  proceedings  are  attacked  years  later  as  null 
and  void  on  the  gi'ound  that  the  commanding 
general  was  legally  incompetent  to  convene  the 
court,  because  he  had  preferred  the  charges. 
In  such  case  sworn  statements  of  officers  may  be 
admitted  in  order  not  to  impeach  the  validity 
of  the  proceedings,  but  to  supply  facts  which 
the  record  fails  to  disclose.  (16  Op.  Atty. 
Gen.,  106.) 

For  other  cases,  see  notes  to  article  38,  A.G.  N., 
under  "Evidence  of  convening  authority's 
power" ;  article  40,  A.  G.  N.,  under  "Judge 
advocate  not  sworn";  and  article  43,  A.  G.  N., 
under  "Waiver  of  objection  by  the  accused." 

Correction  of  record. — See  above  under 
"Omission  of  record  to  show  jurisdictional 
facts";  and  see  below  under  "Conclusiveness 
of  record." 

The  Secretary  of  War  is  without  authority  to 
correct,  amend,  or  to  take  any  action  inconsist- 
ent with  the  record  of  a  court-martial  duly  con- 
vened upon  a  proper  and  sufficient  charge. 
This  power  is  inherent  in  a  court-martial;  but 
such  correction  or  amendment  can  be  made  only 
when  the  court-martial  is  in  session,  and  when 
at  least  five  of  the  members  of  the  court  who 
acted  upon  the  trial  are  present,  and  then  in  the 
presence  of  the  judge  advocate.  After  the 
court  has  been  dissolved,  and  the  sentence  ap- 
proved and  executed,  such  amendments  or 
corrections  can  not  be  made.  (23  Op.  Atty. 
Gen.,  23.) 

Conclusiveness  of  record. — The  record  is 
that  which  the  court  certifies  to  have  transpired 
on  the  trial  and  embodies  the  action  of  the  court. 
The  fact  that  the  court,  in  due  and  legal  form, 
announces  that  it  did  so  and  so,  or  that  so  and 
so  transpired,  makes  that  record  and  the  fact, 
and  no  one  except  the  court  itself  can  lawfully 
alter  that  record.  If  it  were  to  be  held  other- 
wise, there  is  not  a  record  filed  in  the  depart- 
ment that  could  not  be  subject  to  attack  by  ex 
parte  affidavits,  and  that,  too,  at  a  time  when 


54641°— 22- 


-66 


1035 


Sec.  1624,  Art.  53. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


the  officers  of  the  court  miRht  be  dead  or  scat- 
tered to  the  ends  of  the  earth  and  unable  to 
defend  the  solemn  certificates  which  they  made; 
and  all  the  judgments  of  courts-martial  as  filed 
and  acted  on  would  be  open  to  perpetual  con- 
tradiction on  subsecjuent  assertions  of  interested 
parties  which  it  would  be  impossible  to  meet  or 
disprove.    (23  Op.  Atty.  Gen.,  23,  28.) 

In  this  case  the  record  was  in  every  respect 
regular  on  its  face.  But  after  the  sentence  was 
carried  into  execution,  the  accused  filed  an  affi- 
da\'it  of  himself  and  also  one  made  by  one  of  the 
members  of  the  court-martial,  stating  that  a 
certain  ^vitness  testified  at  the  trial ,  whereas  the 
record  did  not  show  that  the  person  named  in 
the  affidavits  was  used  as  a  ^\•itnes3  in  the  case. 
It  was  contended  by  the  accused  that  the  re- 
vieAving  authority  never  had  jurisdiction  to 
approve  and  execute  the  sentence,  because  he 
never  had  the  whole  record  before  him;  and 
that  his  action  was  accordingly  void.  Held, 
that  the  record  of  a  court  of  competent  jurisdic- 
tion is,  as  against  collateral  attack,  conclusive 
of  its  ovm  verity ;  that  this  is  settled  and  accept- 
ed law;  and  that  the  same  doctrine  as  to  conclu- 
siveness is  also  applicable  to  courts-martial. 
(23  Op.  Atty.  Gen.,  23.) 

See  above,  under  "Omission  of  record  to  show 
jurisdictional  facts,"  and  "Correction  of  rec- 
ord." 

Copies  of  records;  rights  of  pubUc;  evi- 
dence in  other  cases. — See  note  to  section 
882,  Revised  Statutes;  and  note  to  article  34, 
A.G.N. 

Public  justice  and  private  right  require  that 
the  Secretary  of  the  Navy  and  his  subordinates 
shall  not  withhold  their  testimony  in  regard 
to  the  contents  of  the  record  of  a  com-t-martial, 
after  the  proceedings  have  been  consummated 
by  the  action  of  the  proper  re\dsory  authority, 
when  required  to  give  it  by  the  summons  of  a 
State  court.    (11  Op.  Atty.  Gen.,  137.) 

When  the  proceedings  of  a  naval  court-mar- 
tial are  at  an  end,  through  the  action  of  the  com- 
petent re^'isory  power,  the  contents  of  the  rec- 
ords of  such  proceedings  are  not  State  secrets; 
nor  are  the  records  of  the  courts  to  be  regarded 
as  the  minutes  of  official,  confidential  transac- 
tions, ^vithin  the  meaning  of  the  rule  as  to 
"privileged  communications."  (11  Op.  Atty. 
Gen.,  137.) 

Any  person  having  an  interest  in  the  record 
of  a  naval  court-martial  on  file  in  the  Navy  De- 
partment is  entitled  to  have  an  exemplified 
copy  of  it  after  the  proceedings  are  consummated 
by  the  action  of  the  proper  revisory  authority. 
(llOp.  Atty.  Gen.,  137.) 


The  many  instances  in  which  court-martial 
records  might  be  made  available  for  the  pur- 
poses of  justice  clearly  show  that  any  rule  by 
which  the  right  to  inspect  and  receive  copies  of 
the  records  of  the  proceedings  of  military  tri- 
bunals would  be  limited  and  restricted  would 
operate  to  affect  disastrously  the  administra- 
tion of  justice  in  cases  in  which  the  liberty,  hap- 
piness, and  life  of  the  individual  are  often  in- 
volved, and  the  safety  of  the  State  itself  may  be 
concerned.     (11  Op.  Atty.  Gen.,  137.) 

The  records  of  courts-martial  should  be  re- 
garded as  standing  upon  the  same  footing,  so 
far  as  the  parties  affected  and  the  community 
at  large  are  concerned,  as  the  records  of  the 
ordinary  tribunals  of  civil  and  criminal  juris- 
diction. The  legislation  of  Congress  shows  that 
it  was  intended  to  guard  against  improper  secre- 
cy in  the  cases  of  courts-martial.  (11  Op.  Atty. 
Gen.,  137.) 

The  head  or  an  officer  of  a  department  may 
properly  have  the  custody  of  records  of  covu-ta- 
martial,  but  such  custody  does  not  involve  any 
right  of  exclxisive  control  over  the  documents, 
nor  does  it  imply  any  right  to  withhold  the  con- 
tents of  them.  Such  records,  it  is  plain,  must 
be  deposited  and  remain  somewhere.  They 
can  not  stay  in  the  possession  of  the  courts- 
martial,  because  they  have  no  existence  after 
the  trials.  They  are  then  dissolved  sine  die. 
The  most  appropriate  place  of  custody  is 
undoubtedly  the  archives  of  the  department 
charged  with  the  administration  of  the  branch 
of  the  military  service  in  which  the  courts  were 
respectively  convened.  With  respect  to  the 
records  of  naval  courts-martial  on  file  in  the 
department,  the  Secretary  of  the  Nav^^  or  the 
officer  of  the  department  in  whose  peculiar 
care  they  may  be  placed  stands  in  relatively 
the  same  attitude  as  the  clerk  or  prothonotary 
of  a  civil  court  with  respect  to  the  records  of 
cases  instituted  and  determined  in  the  court  of 
which  he  is  an  officer.  (11  Op.  Atty.  Gen., 
137,  143.) 

A  paper  which  must  be  kept  on  file  in  a  des- 
ignated office  and  which  can  not  be  removed 
therefrom  pertains  to  that  office  and  so  becomes 
official  within  the  meaning  of  section  882,  Re- 
vised Statutes.  (Cohn  v.  tJ.  S.,  258  Fed.  Rep., 
355.) 

If  the  departments  at  Washington  can  be 
compelled  to  produce  in  any  part  of  the  country 
the  original  of  any  documents  or  papers  they 
may  have  on  file,  the  greatest  embarrassment 
and  confusion  to  the  department  would  be  the 
consequence.  (Cohn  v.  U.  S.,  258  Fed.  Rep., 
355.) 


Art.  53.  [Confirmation  of  sentence.]  No  sentence  of  a  court-martial,  ex- 
tending to  the  loss  of  life,  or  to  the  dismissal  of  a  commissioned  or  M^arrant  offi- 
cer, shall  be  carried  into  execution  until  confirmed  by  the  President.  All 
other  sentences  of  a  general  court-martial  may  be  carried  into  execution  on 
confirmation  of  the  commander  of  the  fleet  or  officer  ordering  the  court. — (17 
July,  1862,  c.  204,  s.  1,  art.  19,  v.  12,  p.  605.) 


"The  Secretary  of  the  Navy  may  set  aside  the 
proceedings  or  remit  or  mitigate,  in  whole 
or  in  part,  the  sentence  imposed  by  any 
naval  court-martial  convened  by  his  order 
or  by  that  of  any  officer  of  the  Navy  or 


Marine  Corps."     (Act  Feb.  16,  1909,  sec.  9, 
35  Stat.,  621.) 
The   Judge  Advocate   General   of   the   Navy 
"shall,  under  the  direction  of  the  Secretary 
of  the  Navy,   receive,   revise,   and  have 


1036 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  53. 


recorded    the   proceedings   of   all    courts- 
martial    *    *    *    in  the  naval  service." 
(Act  June  8,  1880,  21  Stat.,  164.) 
"Such  finding  and  sentence  shall  be  subject 
to  review  by  the  convening  authority,  and 
by  the  Secretary  of  the  Navy,  as  in  the 
cases  of  other  courts-martial. ' '     (Act  Apr. 
9, 1906,  sec.  3,  34  Stat.,  104-105,  relating  to 
courts-martial  for  the  trial  of  midshipmen 
at  the  Naval  Academy.) 
Sentence  inoperative  vmtil  conftrnied.. — 
Under  the  laws  of  the  United  States,  the  sen- 
tence of  a  court-martial  in  case  of  death  or  dis- 
mission is  not  perfected  until  it  shall  have 
received   the   approbation   of   the   President. 
Without  his  sanction  it  is  no  more  a  perfect 
sentence  than  a  bill  which  has  passed  both 
houses  of  the  National  Legislature  but  which 
has  not  yet  received  the  approbation  of  the 
President  is  an  act  of  Congress.     In  both  cases 
his  approbation  is  necessary  to  consummate 
the  measure.     (1  Op.  Atty.  Gen.,  233,  241.) 

According  both  to  plain  law  and  universal 
practice,  the  sentences  of  naval  courts-martial 
are  incomplete  and  can  not  lawfully  be  carried 
into  effect  until  they  have  received  the  ap- 
proval or  confirmation  of  some  revisory  power. 
(5  Op.  Atty.  Gen.,  508,  511.) 

Without  the  confirmation  of  the  sentence  by 
the  statutory  reviewing  authority  it  was  a  vain 
thing.     (10  Op.  Atty.  Gen.,  64.) 

Execution  of  sentence  prior  to  confirma- 
tion.— If  at  the  time  that  the  act  was  done  by 
the  War  Department  of  actually  dismissing  the 
officer,  the  sentence  had  not  been  confirmed  by 
the  President,  it  does  not  admit  of  doubt  that 
the  sentence  and  thus  the  act  done  could  be 
confirmed  at  a  subsequent  period  by  him,  and 
this  upon  the  well-settled  principle  that  a  sub- 
sequent ratification  is  equal  to  a  prior  command . 
Whether  or  not  in  the  interval  that  ensued 
between  the  informal  dismissal  of  the  officer 
and  the  act  done  by  the  President  which  oper- 
ated to  confirm  the  sentence  the  officer  is  to  be 
considered  as  having  been  an  officer  of  the 
Army,  not  decided.  (16  Op.  Atty.  Gen.,  298.) 
An  officer  was  convicted  by  court-martial 
and  sentenced  to  dismissal.  The  sentence  not 
having  been  approved  by  the  President,  the 
Secretary  of  the  Navy  addressed  a  letter  to  the 
officer  purporting  to  dismiss  him  from  the  naval 
service,  not  pursuant  to  the  sentence  of  the 
court  but  because  of  facts  disclosed  by  the 
record.  Held,  that  such  letter  was  an 
attempted  dismissal  of  the  officer  otherwise 
than  piu-suant  to  the  confirmed  sentence  of  a 
court-martial,  and  that  such  power  of  dismissal 
did  not  exist  in  the  President  on  that  date. 
(16  Op.  Atty.  Gen.,  312.) 

Pursuant  to  the  Attorney  General's  opinion 
above  noted  (16  Op.  Atty.  Gen.,  312),  the 
Secretary  of  the  Navy  addressed  a  letter  to  the 
officer  11  years  after  his  supposed  dismissal, 
declaring  the  order  of  dismissal  to  be  illegal 
and  void,  and  revoking  and  annulling  same  by 
direction  of  the  President  of  the  United  States. 
The  name  of  the  officer  was  thereupon  restored 
to  the  Navy  Register  in  the  original  relative 
position  held  by  him  and  to  which  he  was  en- 
titled by  virtue  of  his  commission.  Held,  that 
the  order  of  the  President  did  not  operate  to 
restore  the  said  officer  to  the  Navy;  he  was 


always  there,  although  by  error  there  was  an 
omission  of  his  name  in  the  register  and  a  fail- 
ure for  some  years  to  recognize  him  as  an 
officer  of  the  Navy.  The  only  rule  that  can  be 
adopted  is  to  treat  him  as  having  always  been 
nominally,  what  he  always  was  actually  ajid 
really,  an  officer  of  the  United  States.  If 
positions  have  been  arranged  in  regard  to  the 
rank  of  other  oflicers  upon  the  theory  that  he 
was  not  an  officer,  those  positions  should, 
whenever  possible,  be  altered  so  as  to  rectify 
the  error  committed  by  treating  him  as  out  of 
the  ser\'ice.  Where  an  officer  is  illegally 
dropped  he  can  only  find  his  place  again  in 
the  grade  from  which  he  was  dropped,  as  it 
would  not  be  in  the  power  of  the  President 
alone  to  give  him  the  rank  of  a  higher  gi-ade.  It 
is  not  necessary  to  consider  in  this  case  to  what 
extent  it  would  be  possible  to  rectify  such  an 
error  so  far  as  higher  grades  are  concerned. 
(17  Op.  Atty.  Gen.,  21,  22,  24;  see  also  act  of 
Mar.  3,  1883,  22  stat.,  530,  "for  the  relief  of 
Edward  Bellows,"  the  officer  in  whose  case 
this  opinion  was  rendered;  and  compare  note 
to  art.  36,  A.  G.  N.,  imder  "Illegal  dismissal 
revoked.") 

Until  the  President  has  acted  in  the  manner 
required  by  the  articles  of  war,  a  sentence  by 
Army  court-martial  of  dismissal  of  a  commis- 
sioned officer  from  service  in  time  of  peace  is 
inoperative.  Before  then  it  is  interlocutory 
and  inchoate  only.  Accordingly,  there  being 
no  sufficient  evidence  that  the  action  of  the 
court-martial  which  dismissed  Maj.  Runkle 
from  the  Army  was  approved  by  the  President 
it  follows  that  he  was  never  legally  cashiered 
or  dismissed  from  the  Army.  (Runkle  v.  U.  S., 
122  U.  S.,  543,  547,  559.) 

Approval  of  sentence  and  not  of  whole 
proceedings  required. — Under  the  articles 
of  war  it  is  the  approval  of  the  sentence  and  not 
of  the  whole  proceedings  that  is  the  prereq- 
uisite to  carrying  the  sentence  into  execution. 
(Carter  v.  McClaughry,  183  U.  S.,  365,  384; 
compare  note  to  art.  52,  A.  G.  N.,  under  "Rec- 
ord should  contain  all  the  evidence";  and  see 
note  below  as  to  form  of  President's  action.) 

Efifect  of  approval  or  disapproval. — In 
the  case  of  a  court-martial  sentence  of  death  or 
dismissal,  the  President's  disapproval  anni- 
hilates it;  the  case  stands  as  if  there  had  been 
no  trial,  and  is  just  as  open  to  an  order  for  a 
court-martial  as  it  was  in  the  first  instance. 
(1  Op.  Atty.  Gen.,  233,  242;  see  note  below  as 
to  new  trials.) 

Where  a  soldier  was  tried  by  court-martial 
for  theft  and  desertion,  and  having  been  con- 
victed of  both  charges  was  sentenced  by  the 
court,  but  the  proceedings,  findings,  and 
sentence  were  afterwards  disapproved  by  the 
reviewing  officer  and  the  prisoner  ordered  to 
be  released  from  confinement  and  restored  to 
duty:  Held,  that  the  action  of  the  reviewing 
officer  was  in  effect  an  acquittal  by  the  court; 
that  the  accused  is  in  legal  contemplation  in- 
nocent of  the  charges  mentioned;  and  that 
there  is  no  authority  for  withholding  his  pay 
on  account  of  the  alleged  desertion.  (13  Op. 
Atty.  Gen.,  459.  In  this  case,  disapproval 
was  for  the  reason  that  the  court  allowed  so 
much  of  the  examination  of  the  only  ^vitness 
for  the  prosecution  to  be  conducted  by  means 


1037 


Sec.  1624,  Art.  53. 


Ft.  2.  REVISED  STATUTES. 


The  Navy. 


of  leading  questions  as  to  destroy  the  value  of 
the  testimony.  See  note  to  art.  8,  A.  G.  N., 
under  "Effect  of  disapproval;  desertion;"  and 
see  below  under  "tourt-martial  bar  to  trial  in 
civil  court.") 

After  the  final  sentence  of  the  law  is  pro- 
nounced by  the  superior  ofUcers,  the  charge 
has  passed  conclusively  into  an  o ffense  beyond 
dispute,  for  the  judgment  of  a  comt-marlial  is 
conclusive  in  its  effect  as  to  the  truth  of  the 
charge  and  as  a  jucUcial  decree  is  a  bar  to 
further  proceeding.  (19  Op.  Atty.  Gen.,  106, 
108.) 

For  other  cases,  see  below,  under  "Irreg- 
ularities and  false  defects." 

Disapproval  of  findings  in  part;  effect 
on  sentence. — -Where  the  sentence  is  rendered 
on  findings  of  guilty  of  several  charges  with 
specifications  thereunder,  and  the  President, 
as  the  reviewing  authority,  has  disapproved  of 
the  findings  of  guilty  of  some  of  the  specifica- 
tions, but  approved  the  findings  of  guilty  of  a 
specification  or  specifications  under  each  of 
the  charges  and  of  the  charges,  the  President 
does  not  think  proper  to  remand  the  case  to  the 
court-martial  for  re\ision,  or  to  mitigate  the 
sentence,  or  to  pardon  the  accused,  but  ap- 
proves the  sentence,  the  judgment  so  rendered 
can  not  be  disturbed  on  the  gi'ound  that  the  dis- 
approval of  some  of  the  specifications  vitiated 
the  sentence.  The  analogies  of  the  criminal 
law  bear  out  the  procedure  under  military 
law.  It  can  not  be  assumed  that  if  the  court- 
martial  had  acquitted  on  the  disapproved 
findings,  the  sentence  would  have  been  less 
severe,  and  that  the  punishment  was  there- 
fore increased  by  the  action  of  the  President. 
(Carter  v.  McClaughry,  183  U.  S.,  365,  385.) 

It  has  been  repeatedly  ruled  by  the  Judge 
Advocates  General  of  the  Army  that  a  duly 
approved  finding  of  guilty  on  one  of  several 
charges,  a  conviction  upon  which  requires  or 
authorizes  the  sentence  adjudged,  will  give 
validity  and  effect  to  such  sentence,  although 
the  similar  findings  on  all  the  other  charges  are 
disapproved  as  not  warranted  by  the  testi- 
mony. (Carter  v.  McClaughry,  183  U.  S.,  365, 
386.) 

Reconsideration  of  reviewing  author- 
ity's action. — Where  several  midshipmen  had 
been  dismissed  by  the  sentence  of  a  naval  court- 
martial,  which  was  approved  by  the  President, 
who  very  shortly  thereafter  reconsidered  his 
approval  and  announced  his  determination  to 
annul  his  approval  and  restore  the  dismissed 
officers,  but  was  prevented  from  doing  so  be- 
cause of  his  sudden  death  a  few  days  after- 
wards, held  that  it  is  within  the  competency 
and  power  of  the  present  Executive  to  restore 
them  to  their  former  rank  in  the  Navy,  pro- 
vided it  can  be  done  without  increasing  that 
class  of  officers  beyond  the  niunber  limited  by 
law.  (5  Op.  Atty.  Gen.,  259.  This  opinion  was 
expressly  confined  to  the  case  presented  and 
' '  its  particular  circiunstances, ' '  and  thus  ex- 
cludes all  idea  of  introducing  any  new  doctrine. 
See  6  Op.  Atty.  Gen.,  369,  370.) 

It  can  not  be  assumed,  as  a  general  proposi- 
tion, either  that  the  President  has  a  power  un- 
limited as  to  time  or  circumstances  to  restore 
an  officer  who  has  been  dismissed  from  the  pub- 
lic service,  or  that  he  is  in  all  cases  precluded 


from  so  doing  from  the  instant  he  signs  his  ap- 
proval of  a  sentence  of  dismissal.  It  is  not 
necessary  on  this  occasion  to  attempt  to  discuss 
or  define  the  extreme  limits  which  restrain  his 
power,  on  the  one  hand,  or,  on  the  other  hand, 
to  fix  the  limits  within  which  it  may  be  his 
right  and  duty  to  reconsider  and  annul  execu- 
tive acts.     (5  "Op.  Atty.  Gen.,  259.) 

A  sentence  of  dismissal  from  the  naval  service, 
approved  by  the  President,  can  not  be  an- 
nulled. The  officer  dismissed  can  be  restored 
to  the  Navy  only  by  a  new  nomination  by  the 
President,  confirmation  of  the  Senate,  and  all 
the  requisites  to  constitute  an  original  appoint- 
ment to  office.     (4  Op.  Atty.  Gen.,  274.) 

An  officer  of  marines  was  tried  by  court- 
martial  and  sentenced  to  be  cashiered;  the 
sentence  was  commuted  to  suspension  for  a  lim- 
ited period;  thereafter  the  accused  was  ap- 
pointed a  lieutenant  in  the  Anny.  Held,  that 
his  case  can  not,  after  the  lapse  of  16  years,  be 
examined  with  reference  to  whether  the  court- 
martial  by  which  he  was  tried  was  legally  or- 
ganized and  competent  to  try  him.  (5  Op.  Atty. 
Gen.,  384.) 

After  the  sentence  of  a  court-martial  dismiss- 
ing an  officer  has  been  approved  and  acted  on 
by  the  President,  it  can  not  be  revised  except 
for  suggestion  of  absolute  niillitj^  in  the  pro- 
ceedings as  being  absolutely  void  ab  initio. 
The  decision  of  the  President  in  cases  of  this 
sort  is  that  of  the  ultimate  judge  provided  by 
the  Constitution  and  laws.  Like  that  of  any 
other  court  in  the  last  resort  of  law,  it  is  final  as 
to  the  subject  matter.     (6  Op.  Atty.  Gen.,  369. ) 

After  the  trial  and  conviction  of  a  commis- 
sioned or  warrant  officer  of  the  Navy  by  a  court- 
martial  having  jurisdiction  of  the  case,  and  the 
approval  by  the  President  of  the  sentence  dis- 
missing him  from  the  service,  and  such  sen- 
tence has  been  carried  into  execution,  the 
President  can  not  reconsider  his  approval  and 
revoke  the  sentence  of  the  court.  (11  Op. 
Atty.  Gen.,  19.) 

Undoubtedly  the  President,  in  passing  upon 
the  sentence  of  a  court-martial  and  giving  to  it 
the  approval  without  which  it  can  not  be  exe- 
cuted, acts  judicially.  The  whole  proceeding 
from  its  inception  is  judicial.  The  trial,  find- 
ing, and  sentence  are  the  solemn  acts  of  a  court 
organized  and  conducted  under  the  authority 
and  according  to  the  prescribed  forms  of  law. 
It  sits  to  pass  upon  the  most  sacred  questions 
of  human  rights  that  are  ever  placed  on  trial  in 
a  court  of  justice^righta  which  in  the  very  na- 
ture of  things  can  neither  be  exposed  to  danger 
nor  entitled  to  protection  from  the  uncon- 
trolled will  of  any  man  but  which  must  be  ad- 
judged according  to  law.  And  the  act  of  the 
officer  who  reviews  the  proceedings  of  the 
court,  whether  he  be  the  commander  of  the 
fleet  or  the  President,  and  without  whose  ap- 
proval the  sentence  can  not  be  executed,  is  as 
much  a  part  of  this  judgment  according  to  law 
as  is  the  trial  or  the  sentence.  When  the 
President,  then,  performs  this  duty  of  approv- 
ing the  sentence  of  a  court-martial  dismissing 
an  ofiicer,  his  act  has  all  the  solemnity  and  sig- 
nificance of  the  judgment  of  a  court  of  law. 
As  it  has  to  be  performed  under  the  same  sanc- 
tions, so  it  draws  with  it  the  same  consequences . 
One  of  these  consequences  is  that  where   a 


1038 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  53. 


judgment  has  been  regularly  entered  in  a  case 
properly  within  the  judicial  cognizance,  from 
which  no  appeal  has  been  provided  or  taken, 
and  it  has  been  followed  by  execution,  it  is 
final  and  conclusive  upon  the  party  against 
whom  it  is  entered.  And  this  effect  attaches 
to  the  action  of  the  President  in  approving  the 
sentence  of  a  court-martial  dismissing  an  officer 
after  that  approval  has  been  consimimated  by 
actual  dismissal,  Ql  Op.  Atty.  Gen.,  19,  21; 
see  also  Runkle  v.  \j.  S.,  122  U.  S.,  543,  557.) 

No  man  would  assert  the  power  of  the  Presi- 
dent to  reverse  his  judicial  decision  afterwards 
to  the  prejudice  of  the  accused.  But  why 
should  that  judgment  be  any  less  permanent 
because  it  establishes  his  guilt?  It  must  be 
accepted  as  final  and  conclusi\e  in  the  one  case 
as  in  the  other,  because  it  is  the  judgment 
which  the  law  authorizes  to  settle  the  rights  in 
controversy,  from  which  no  appeal  has  been 
given.     (11  Op.  Atty.  Gen.,  19,  21,  22.) 

Courts-martial  are  judicial  tribunals  consti- 
tuted by  statutory  authority  and  organized  in 
pursuance  of  statutory  regulations  for  the  ad- 
ministration of  a  great  and  important  depart- 
ment of  jurisprudence — the  law  military.  They 
are,  therefore,  in  the  strictest  sense  courts  of 
justice,  ha\ing  jurisdiction  of  a  large  and  in 
some  respects  distinct  community  of  our  fellow 
citizens,  and  taking  judicial  cognizance  of  the 
duties  and  obligations  which  the  citizen  as- 
sumes when  he  enters,  by  enlistment  or  other- 
wise, into  the  military  service  of  the  country. 
Their  judgments  in  cases  committed  for  the 
consideration  and  determination  are  as  final, 
conclusive,  and  authoritativ^e  as  those  of  any 
judicial  tribunal  of  the  country.  After  the 
sentence  has  been  approved  and  carried  into 
effect,  there  is  no  re\'isory  power  by  which  it 
can  be  rescinded,  annulled,  or  modified.  It 
forever  stands  as  the  judgment  of  a  court.  (11 
Op.  Atty.  Gen.,  137.) 

When  the  sentence  of  a  court-martial  dis- 
missing a  commissioned  officer  has  been  law- 
fully confirmed  and  executed,  the  proceedings 
in  the  case  are  no  longer  subject  to  review  by 
the  President;  they  have  passed  beyond  his 
control  and  are  at  an  end.  (15  Op.  Atty.  Gen., 
290.) 

A  commander  in  the  Navy  was  tried  and 
sentenced  to  dismissal  from  service  by  a  naval 
court-martial.  The  record  of  the  proceedings 
and  sentence  was  submitted  to  the  President, 
who,  on  June  5,  1874,  approved  the  same.  On 
June  9,  1874,  the  Secretary  of  the  Navy  ad- 
dressed a  letter  to  the  officer,  then  in  Boston, 
informing  him  of  the  apyjroval  of  the  sentence, 
and  stating  that  from  said  date  (June  9, 1874)  he 
would  "cease  to  be  an  officer  of  the  Navy." 
On  June  12,  1874,  the  Secretary  addressed  an- 
other letter  to  the  officer,  asking  him  to  return 
the  letter  of  dismissal.  On  December  8,  1874, 
the  Secretary  addressed  a  third  letter  to  the 
officer,  stating  that  the  sentence  of  the  court- 
martial  "was,  on  the  9th  day  of  June,  1874, 
mitigated  to  suspension  from  rank,  and  so 
forth,  to  date  from  that  day."  Held,  (1)  that 
the  letter  of  the  Secretary  of  the  Navy  of  De- 
cember 8  is  satisfactory  proof  not  only  of  the 
mitigation  of  the  sentence  by_  the  President, 
but  that  it  was  mitigated  by  him  on  the  9th  of 
June;  (2)  that  the  letter  of  dismissal  in  execu- 


tion of  the  sentence,  forwarded  by  the  Secretary 
on  the  9th  of  June  (it  being  manifest  that  the 
complete  execution  of  the  sentence  by  means  of 
that  letter  could  not  take  place  on  that  <Iay), 
was  then  revocable;  and  the  mitigation  of  the 
sentence  was  in  effect  a  revocation  of  the  letter; 
and  (3)  that  it  was  competent  to  the  President 
under  the  circumstances  to  mitigate  the  sen- 
tence when  he  did.  (15  Op.  Atty.  Gen.,  463; 
see  Quackenbush  v.  U.  S.,  177  U.  S.,  20.) 

Wliere  the  sentence  of  a  legally  constituted 
court-martial  in  a  case  within  its  jurisdiction 
has  been  approved  by  the  reviewing  authority 
and  carried  into  execution,  it  can  not  after- 
wards be  rcA-ised  and  annulled,  there  being 
no  fatal  irregularity  in  its  proceedings  nor 
illegality  in  its  sentence.  The  proceedings  are 
then  at  an  end,  and  the  action  thus  had  "upon 
the  sentence  is,  in  contemplation  of  law,  final. 
(17  Op.  Atty.  Gen.,  297.) 

If  the  sentence  of  a  court-martial  dismissing 
a  commissioned  officer  of  the  Army  has  been 
legally  approved  by  the  President,  the  sub- 
sequent disapproval  of  the  sentence  by  his 
successor  would  be  a  nullity  and  could  not  have 
the  effect  of  restoring  the  officer  to  his  position. 
(Runkle  V.  U.  S.,  122  U.  S.,  543,  558.) 

For  other  cases,  see  below,  under  "Irregular- 
ities and  fatal  defects. ' ' 

Relation  of  reviewing'  authority  to 
court  analogous  to  judge  and  jury. — 
Courts-martial  exhibit  many  points  of  analogy 
with  juries,  the  appointing  power  having  some- 
thing of  the  same  relation  to  the  former  that  the 
judge  at  nisi  prius  has  to  the  latter,  inasmuch 
as  the  court-martial,  like  the  jury,  finds  all  of 
the  facts,  and  pronounces  a  sentence  thereon 
which  has  to  undergo  the  legal  supervision  of 
a  superior  authority.  Questions  have  arisen 
where  it  was  convenient  to  reason  from  this 
analogy ;  however,  it  is  analogy  only,  and  leaves 
unchanged  the  substantial  nature  of  things. 
(7  Op.  Atty.  Gen.,  338,  340.) 

The  reviewing  authority,  whose  confirmation 
of  the  sentence  is  required  before  it  becomes 
operative,  occupies  toward  the  court-martial 
and  its  proceedings  a  relation  similar  to  that 
which  the  judge  in  a  ci^^-l  court  occupies  to  a 
jury.     (10  Op.  Atty.  Gen.,  64.) 

The  verdict  of  a  jury  bears  a  close  analogy  to 
the  judgment  of  a  court-martial.  The  sentence 
pronounced  on  that  v^erdict  by  the  court  bears 
a  like  analogy  to  the  confirmation  of  the  officer 
who  ordered  the  court.  (19  Op.  Atty.  Gen., 
106,  107.) 

While  a  court-martial  can  not  be  altogether 
likened  to  a  civdl  court,  in  which  the  guilt  of 
the  accused  is  to  be  pronounced  by  a  jury  under 
the  supervision  of  the  judge,  and  the  penalty 
is  to  be  fixed  by  the  judge  within  the  pre- 
scribed limits,  it  is  true  that  a  court-martial 
acts  only  in  response  to  the  call  of  a  superior 
authority,  and  the  result  of  its  deliberations  is 
somewhat  in  the  nature  of  a  recommendation 
to  that  authority;  is  without  effect  unless  ap- 
proved by  it;  and  until  then  is  interlocutory 
and  inchoate  only.  (In  re  Brodie,  128  Fed. 
Rep.,  665,  668.) 

The  superior  authority  which  orders  a  court- 
martial,  and  to  which  its  conclusion  must  be 
submitted  for  approval  or  disapproval,  is 
spoken    of   as   the   re\T.ewing   authority.     Its 


1039 


Sec.  1624,  Art.  53. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


action  being  indispensable  to  a  final  conclusion 
or  jiuljiment,  the  reviewing  authority  is  an 
essential  component  of  the  original  tribunal 
and  is  not  entirely  a  court  of  errors.  (In  re 
Brodie,  128  Fed.  flep.,  66-5,  668.) 

See  note  below,  under  "Reconvening  of 
court  for  re\'ision.'' 

"Officer  ordering  the  court;"  President 
and  Secretary  of  the  Navy. — The  sentence 
must  be  confirmed  by  the  President,  if  he 
ordered  the  court;  or  by  the  Secretary  of  the 
Navy,  if  he  was  the  officer  who  ordered  it. 
(lOp.  Atty.  Gen.,  309.) 

Under  the  phiase,  "the  officer  ordering  the 
court  ■'  in  the  articles  of  April  23,  1800  (2  Stat., 
51),  the  President  and  Secretary  of  the  Nax-y 
alone  were  included;  because  by  said  articles 
they  were  the  only  officers  authorized  to  order 
a  naval  court-martial  at  home.  (1  Op.  Atty. 
Gen..  309.) 

Where  a  general  coui't-martial  was  convened 
by  the  Secretary  of  the  Navy,  he  was  the 
"officer"  ordering  the  court  -within  the  meaning 
of  the  Articles  for  the  Government  of  the  Navy 
pro^•iding  for  the  execution  of  sentences  on 
confirmation  of  the  officer  ordering  the  court; 
the  approval  of  the  Secretary  of  the  NaA^  was 
that  confii-mation.     (4  Op.  Atty.  Gen.,  323.) 

The  Secretary  of  the  Navy  has  power  to 
approve  the  sentence  of  a  court-martial  con- 
vened by  him  where  the  sentence  of  the  coui't 
does  not  extend  to  loss  of  life  or  to  the  dis- 
missal of  a  commissioned  or  warrant  officer. 
(5  Op.  Atty.  Gen.,  508.) 

The  Secretary  of  the  Navy  is  an  "officer" 
within  the  meaning  of  the  act  of  April  23,  1800, 
article  41  (2  Stat.,  51),  pro^'iding  that  sentences 
of  comls-martial  in  certain  cases  may  be 
carried  into  execution  "on  confirmation  of  the 
commander  of  the  fleet,  or  officer  ordering  the 
court."     (5  Op.  Atty.  Gen.,  508.) 

To  say  that  the  term  "officer"  as  here  used  is 
to  be  understood  as  meaning  only  a  naval 
officer  ha\dng  command  of  a  squadron  is  a 
construction  not  only  narrow  and  arbitrarj^, 
but  such  as  would  defeat  the  declared  purpose 
of  this  provision  of  law.  The  Secretaiy  of  the 
Navy  is  in  fact  and  law  an  "officer"  and  in  the 
act  establishing  the  Navy  Department  (1  Stat., 
553),  he  is  denominated  the  " chief  officer"  of 
that  department.     (5  Op.  Atty.  Gen.,  508.) 

WTiere  a  court-martial  for  the  trial  of  an 
officer  of  the  Army  was  convened  by  the  Presi- 
dent, he  was  the  re\iewing  authority  and  the 
coiirt  of  last  resort.  (Carter  v.  Mc(Taughrj% 
183  U.  S.,  365,  385.) 

Mitigating  circumstances  considered  by 
reviewing  authority. — In  exercising  the 
revisory  power  over  sentences  of  courts-martial, 
the  President  may  consider  the  provocation, 
if  any,  which  led  to  the  offense  and  all  the  facts 
and  circumstances  which  properly  bear  upon 
the  justice,  injustice,  severity,  or  leniency  of 
the  sentence.     (2  Op.  Atty.  Gen.,  286.) 

Provocation,  according  to  its  nature  and 
degree,  and  according  to  the  nature  of  the  act 
committed  in  consequence  of  it,  may  justify  or 
excuse  that  act  or  may  be  inadequate  to  either 
purpose.  English  writers  on  militarj'  law  con- 
firm the  idea  that  extenuating  circimistances 
may  be  properly  considered  by  the  officer  to 
whom  is  intrusted  the  power  of  supervising  the 


sentence  of  a  court-martial.  It  is  indeed  the 
right  of  the  accused  that  all  the  circumstances 
of  his  case  should  l)e  reviewed  by  the  authority 
which  decides  finallv  on  his  case.  (2  Op.  Attv. 
Gen.,  286.) 

See  note  to  article  52,  A.  G.  N.,  under  "Rec- 
ord should  contain  all  the  e\idence." 

Personal  action  of  reviewing  authority 
required. — The  action  of  the  President  as  to 
the  confirmation  of  sentences  in  cases  where 
such  action  is  required  by  the  articles  of  war  is 
judicial  in  its  character  and  in  this  respect 
differs  from  the  administrative  action  considered 
in  cases  holding  that  the  ac  tion  of  the  head  of  a 
department  is  in  legal  contemplation  the  action 
of  the  President.  The  law  implies  that  he  is 
himself  to  consider  the  proceedings  laid  before 
him,  and  decide  personally  whether  they 
ought  to  be  carried  into  effect.  Such  a  power 
he  can  not  delegate.  His  personal  judgment  is 
required,  as  much  so  as  it  would  have  been  in 
passing  on  the  case  if  he  had  been  one  of  the 
members  of  the  court-martial  itself.  He  may 
call  others  to  his  assistance  in  making  his  ex- 
aminations and  in  informing  himself  as  to  what 
ought  to  be  done;  but  his  judgment  when 
pronounced  must  be  his  own  judgment  and  not 
that  of  another.  And  this  because  he  is  the 
person,  and  the  only  person,  to  whom  has  been 
committed  the  important  judicial  power  of 
finally  determining  upon  his  examination  of  the 
whole  proceedings  of  a  court-martial  whether  an 
officer  holding  a  commission  in  the  Army  shall 
be  dismissed  from  serA-ice  as  a  punishment  for 
an  offense.  (Runkle  r. U.S.,  122  U.S. ,543,557.) 

Form  of  President's  action;  personal 
signature  not  necessary. — It  is  not  necessary 
that  the  President  should  attach  his  sign  manual 
to  the  approval  of  a  sentence  rendered  by  a 
court-martial  in  time  of  peace  cashiering  a  com- 
missioned officer  in  order  to  make  the  sentence 
effectual.  It  is  sufficient  for  this  purpose  if 
his  approval  of  the  sentence  be  signified  through 
and  attested  by  the  Secretary  of  War  in  a  state- 
ment signed  bv  the  latter.  (15  Op.  Atty.  Gen., 
290.) 

A  statement  made  and  signed  by  the  Secre- 
tary of  War  announcing  the  approval  by  the 
President  of  a  court-martial  sentence  is  sufficient 
authentication  of  the  act  of  the  President, 
without  an  express  averment  therein  that  it 
is  made  by  direction  of  the  President,  the 
presumption  being  always  that  such  dii'ection 
was  given.  (15  Op.  Atty.  Gen.,  290;  for  de- 
cision of  the  Supreme  Court  in  this  case,  see 
Runkle  v.  U.  S.,  noted  below.) 

Where  an  Army  officer  was  sentenced  to 
dismiseal  from  the  service,  and  the  sentence, 
without  ha\T.ng  been  approved  by  the  Presi- 
dent, was  carried  into  effect  under  orders  of 
the  War  Department,  helfl  that  the  subsequent 
recognition  by  the  President  of  the  vacancy 
thus  occasioned,  Ijy  making  an  appointment 
during  a  recess  of  the  Senate  or  a  nomination 
to  that  body  (followed  by  the  issuance  of  a 
commission  with  the  consent  of  the  Senate) 
of  a  person  to  fill  the  place  of  such  oflicer, 
operates  as  a  confirmation  by  him  of  the  sen- 
tence and  orders.  (10  Op.  Atty.  Gen.,  298; 
compare  15  Op.  Atty.  Gen.,  463,  466.) 

Whether  a  sentence  of  court-martial  has  been 
confirmed  by  the  President  is  to  be  determined 


1040 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  53. 


by  evidence,  no  specific  form  for  this  act 
having  been  provided  by  statute.  (16  Op. 
Atty.  Gen.,  298.) 

A  paymaster  in  the  Navy  was  sentenced  by 
court-martial,  inter  alia,  to  be  dismissed.  The 
following  letter  was  addressed  to  him  by  the 
Secretary  of  the  Navy:  "In  consequence  of 
the  facts  appearing  upon  the  record  of  the 
naval  general  court-martial  before  which  you 
were  tried  *  *  *^  you  are  dismissed  from 
the  naval  service,  and  will  fi-om  this  date 
cease  to  be  regarded  as  an  officer  in  the  United 
States  Navy."  Ecld,  that  this  letter  does  not 
profess  in  direct  terms  nor  inferentially  to  be 
the  act  of  approval  of  the  sentence  of  the  court- 
martial;  it  IS  foxmded  upon  facts  disclosed  by 
the  record,  and  does  not  state  the  act  which 
the  Secretary  does  to  be  the  act  of  approval  of 
the  sentence.  Its  fair  construction  is  that  it 
is  a  dismissal  from  the  service  by  reason  of 
disclosures  made  by  the  record,  and  such 
power  of  dismissal,  independently  of  court- 
martial,  did  not  then  exist,  by  virtue  of  article 
36,  A.  G.  N.  (16  Op.  Atty.  Gen.,  312;  see  also, 
17  Op.  Atty.  Gen.,  21,  22;  and  see  note  above, 
under  "Execution  of  sentence  prior  to  con- 
firmation.") 

Notice  by  the  Secretary  of  the  Navy  of  the 
approval  by  the  President  of  a  sentence  dis- 
missing a  midshipman  in  1868  was  sufficient 
evidence  both  of  approval  and  promulgation. 
(16  Op.  Atty.  Gen,,  5.50.) 

Where  a  paymaster  in  the  Navy  was  sen- 
tenced to  dismissal  by  court-martial,  and  it 
distinctly  appeared  by  the  order  of  the  Secre- 
tary of  the  Navy  that  the  President  approved 
the  finding  of  the  court  and  directed  the  sen- 
tence to  be  carried  into  effect,  held  that  the 
officer  was  legally  dismissed  from  the  naval 
service.  (17  Op.  Atty.  Gen.,  43,  affirming 
15  Op.  Atty.  Gen.,  290.) 

Where  the  approval  of  the  proceedings, 
findings,  and  sentence  of  a  court-martial  by 
the  President  is  attested  by  an  entry  on  the 
record  signed  by  the  Secretary  of  War,  this  is 
sufficient  evidence  of  such  approval.  (17  Op. 
Atty.  Gen.,  397.  For  decision  of  Court  of 
Claims  in  this  case,  see  Armstrong  v.  U.  S., 
26  Ct.  Cls.,  387.) 

The  President's  approval  must  be  authenti- 
cated in  a  way  to  show,  otherwise  than  argu- 
mentatively,  that  it  is  the  result  of  his  own 
judgment,  and  not  a  mere  departmental  order 
which  may  or  may  not  have  attracted  his 
attention;  and  the  fact  that  the  order  was  his 
own  must  not  be  left  to  inference  only.  Not 
decided  what  the  precise  form  of  an  order  of 
the  President  approving  the  proceedings  and 
sentence  of  a  court-martial  should  be,  or  that 
his  own  signature  should  be  affixed  thereto. 
(Runkle  v.  U.  S.,  122  U.  S.,  543.) 

In  this  case  the  following  order  was  issued 
by  the  Secretary  of  War:  "The  findings  and 
sentence  are  approved.  In  view  of  the  imani- 
mous  recommendation  by  the  members  of  the 
court  that  accused  shall  receive  executive 
clemency  on  account  of  his  gallant  services 
during  thte  war,  and  of  his  former  good  char- 
acter, and  in  consideration  of  evidence,  by 
affidavits  presented  to  the  War  Department 
since  his  trial,  showing  that  accused  is  now, 
and  was  at  the  time  when  his  offense  was 


committed,  suffering  under  great  infirmity  in 
consequence  of  wounds  received  in  battle, 
and  credible  representations  having  been  made 
that  he  would  be  utterly  unable  to  pay  the 
fine  imposed,  the  President  is  pleased  to  remit 
all  of  the  sentence,  except  so  much  thereof  as 
directs  cashiering,  which  will  be  duly  exe- 
cuted." _  This  action  is  di\ided  into  two  parts, 
one  relating  to  the  approval  of  the  proceedings 
and  sentence,  and  the  other  to  the  executive 
clemency  which  was  invoked  and  exercised. 
The  ■personal  action  of  the  President  is  nowhere 
mentioned,  except  in  the  remission  of  a  part 
of  the  sentence.  There  is  nothing  which  can 
have  the  effect  of  an  aflirmative  statement  that 
the  whole  proceeding  had  been  laid  before  the 
President  for  action  or  that  he  personally 
approved  the  sentence.  So  far  as  it  relates  to 
approval  of  the  sentence,  it  indicates  on  its 
face  departmental  action  only.  What  follows 
does  not  clearly  show  the  contrary.  Under 
the  circumstances,  it  can  not  be  said  that  it 
positively  and  distinctly  appears  that  the 
proceedings  of  the  coml-martial  have  ever  in 
fact  been  appro^^ed  or  confirmed  in  whole  or 
in  part  bv  the  President  of  the  United  States. 
(Runkle  \'.  U.  S.,  122  _U.  S.,  543,  547,  559, 
holding  that  the  officer  in  this  case  was  never 
legally  cashiered  or  dismissed  from  the  Army.) 

The  decision  of  the  President  confirming  or 
disproving  the  sentence  of  a  general  court- 
martial  in  time  of  peace,  extending  to  the  loss 
of  life  or  the  dismissal  of  a  commissioned  officer, 
is  a  judicial  act  to  be  done  by  him  personally, 
and  is  not  an  official  act  presumptively  his; 
but  it  need  not  be  attested  by  his  sign  manual 
in  order  to  be  effectual.  (U.  S.  v.  Page,  137 
U.  S.,  673,  citing  2  Op.  Atty.  Gen.,  67;  7  Op. 
Atty.  Gen.,  473;  15  Op.  Atty.  Gen.,  290;  and 
distinguishing  Runkle  v.  Xj.  S.,  122  U.  S., 
543.) 

The  following  action,  signed  by  the  Secretary 
of  War,  held  to  constitute  sufficient  evidence 
of  approval  by  the  President: 

' '  In  conformity  with  the  65th  of  the  Rules 
and  Articles  of  War,  the  proceedings  of  the 
general  court-martial  to  the  foregoing  case  have 
been  forwarded  to  the  Secretary  of  War,  and 
by  him  submitted  to  the  President. 

"The  proceedings  and  findings  upon  the  sec- 
ond charge  and  specification,  and  upon  the 
third  charge  under  its  second  and  third  speci- 
fications, are  approved. 

"With  regard  to  the  other  findings  the  re- 
marks noted  by  Major  General  Hancock,  who 
convened  the  court,  are  concurred  in  as  fol- 
lows:   *    *    * 

"The  sentence  is  approved. 

"Second  Lieut.  Frank  A.  Page  (retired) 
accordingly  ceases  to  be  an  officer  of  the  Army 
from  the  date  of  this  order."  (U.  S.  v.  Page, 
137  U.  S.,  673.) 

The  only  possible  conclusion  to  be  drawn 
from  the  action  signed  by  the  Secretary  of 
War  in  this  case  is  that  the  approval  was  by 
the  President,  in  whom  alone  reposed  authority 
to  act.  Where  the  record  discloses  that  the 
proceedings  have  been  laid  before  the  Presi- 
dent for  his  orders  in  the  case,  the  orders  subse- 
quently issued  thereon  are  presumed  to  be  his 
and  not  those  of  the  Secretary,  by  whom  they 
are  authenticated;  and  this  must  be  the  result 


1041 


Sec.  1624,  Art.  53. 


rt.  2.  REVISED  STATUTES. 


The  Navy. 


where  the  approval  follows  the  submission  in 
the  same  order.     (U.  S.  v.  Pa^e,  137  U.  8.,  673.) 

In  Riinkle  r.  United  States  (above  noted) 
the  record  failed  to  show  the  vital  fact  of  the 
submission  of  the  proceedings  to  the  President. 
The  inference  that  the  President  had  personally- 
acted  could  be  i^roperly  drawn  from  the  sub- 
stantive fact  of  the  submission  of  the  proceed- 
ings to  him,  if  that  appeared,  but  presumption 
could  not  supply  that  fact,  and  then  a  presump- 
tion upon  that  presumption  be  availed  of  to 
make  out  that  the  approval  was  the  President's 
personal  action.  This  would  leave  the  fact 
that  the  order  was  the  President's  to  inference 
only.     (U.  S.  V.  Page,  137  U.  S.,  673.) 

Reference  to  the  case  of  Runkle  v.  United 
States  (above  noted)  shows  that  the  circum- 
stances were  so  exceptional  as  to  render  it 
hardly  a  safe  precedent  in  any  other.  (U.  S. 
V.  Fletcher,  148  U.  S.,  84,  90.) 

The  proceedings,  findings,  and  sentence  of  a 
military  court-martial  being  transmitted  to  the 
Secretary  of  War,  that  officer  wrote  upon  the 
record  the  following  order,  dating  it  from  the 
"War  Department,"  and  signing  it  with  his 
name  as  "Secretary  of  War":  "In  conformity 
with  the  65th  of  the  Rules  and  Articles  of  War, 
the  proceedings  of  the  general  court-martial  in 
the  foregoing  case  have  been  forwarded  to  the 
Secretary  of  War  for  the  action  of  the  President. 
The  proceedings,  findings,  and  sentence  are 
approved,  and  the  sentence  ^vill  be  duly  exe- 
cuted. "  Held,  that  this  was  a  sufficient  authen- 
tication of  the  judgment  of  the  President  and 
that  the  order  was  not  null  and  void  on  the 
ground  that  it  did  not  appear  that  the  President 
personally  approved  the  proceedings  and  di- 
rected the  execution  of  the  sentence.  (U.  S.  v. 
Fletcher,  148  U.  S.,  84;  Ide  v.  U.  S.,  150  U.  S. 
517.') 

WTiile  the  action  of  the  President  in  respect 
of  the  proceedings  and  sentences  of  courts- 
martial  is  judicial,  such  action  need  not  be 
evidenced  under  his  own  hand.  There  is 
nothing  to  indicate  that  the  Secretary  of  War 
assumed  to  confirm  or  disapprove  or  issue 
orders  in  the  case,  and  as  his  indorsement 
showed  that  he  was  proceeding  under  article 
65,  and  that  he  had  received  the  record  for  the 
purpose  of  being  acted  upon  by  the  President, 
the  approval  and  the  direction  for  the  execu- 
tion of  the  sentence  was  manifestly  the  acts  of 
the  President.  The  presumption  is  that  the 
Secretary  and  the  President  performed  the 
duties  devolved  upon  them  respectively. 
While  it  is  not  said  in  this  case  that  the  pro- 
ceedings were  submitted  to  the  President, 
from  the  statement  that  they  had  been  for- 
warded to  the  Secretary  of  War  for  the  action 
of  the  President  followed  by  an  approval 
which  could  only  eminate  from  the  President, 
the  conclusion  follows  that  the  action  taken 
was  the  action  of  the  President.  (U.  S.  v 
Fletcher,  148  U.  S.,  84;  Ide  v.  U.  S.,  150  U.  S., 
517.) 

The  approval  by  the  President  sufficiently 
appears  where  the  record  shows  that  the  sen- 
tence was  submitted  to  the  President,  and  his 
approval  appears  over  his  signature  at  the  foot 
of  a  brief  in  the  case,  prepared  in  the  Navy 
Department;  and  the  Secretary  of  the  Navy 
writes  to  the  accused  that  the  President  has 


approved  the  sentence.  It  is  difficult  to  see 
how  the  personal  approval  of  the  President 
could  appear  more  clearly  than  in  this  case. 
(Bishop  V.  U.  S.,  197  U.  S.,  334.) 

Action  by  convening  authority  absent 
from  his  command.— See  note  to  article  38, 
A.  G.  N.,  under  "Convening  authority  outside 
his  command." 

Form  of  disapproval  by  convening  au- 
thority.— A  paymaster  in  the  Navy  was  sen- 
tenced, inter  alia,  to  be  dismissed  upon  a  charge 
substantially  of  embezzlement.  The  convening 
authority  forwarded  the  record  of  proceedings 
to  the  Navy  Department  with  the  following  in- 
dorsement: "Respectfully  forwarded,  with  the 
remark  that  the  finding  of  the  court  is  not  sus- 
tained by  the  e\ddence,  which  fails  to  show 
that  the  accused  received  from  the  bank  the 
amoimt  of  money  he  is  charged  with  having 
lost."  Held,  that  this  indorsement  can  not  be 
deemed  to  be  a  disapproval  of  the  finding  and 
sentence  of  the  court;  such  disapproval  should 
be  distinctly  expressed.  (16  Op.  Atty.  Gen., 
312;  see  also  17  Op.  Atty.  Gen.,  21,  22.) 

Power  of  Secretary  of  the  Navy  over 
sentences  of  courts-martial. — See  note 
above,  under  "Officer  ordering  the  court; 
President  and  Secretary  of  the  Navy."  See 
also  note  to  article  32,  A.  G.  N. 

The  act  of  June  8,  1880,  which  created  the 
office  of  Judge  Advocate  General  of  the  Navy, 
provided  that  "under  the  direction  of  the  Sec- 
retary of  the  Navy  "  the  Judge  Advocate  Gen- 
eral shall  "receive,  revise,  and  have  recorded 
the  proceedings  of  all  coiu-ts-martial,"  etc.; 
and  prior  to  the  act  of  February  16, 1909  (quoted 
above,  under  this  article),  it  appears  to  have 
been  the  practice  of  the  Secretary  of  the  Navy, 
without  any  express  statutory  authority,  actu- 
ally to  set  aside  the  proceedings  of  courts- 
martial  and  to  remit  or  mitigate  any  sentence 
imposed  by  such  courts  if  such  action  seemed  to 
him  to  be  warranted  after  a  careful  review  of 
the  record  of  proceedings.  In  1908  the  Secre- 
tary recognized  the  desirability  of  specific  leg- 
islation on  this  subject,  and  he  strongly  advo- 
cated the  enactment  of  legislation  previously 
recommended.  The  result  was  the  passage  of 
theactof February  16, 1909 (quoted above).  (U. 
S.  ex  rel.  Harris  v.  Daniels,  MacDonald,  et  al., 
U.  S.  Circuit  Court  of  Appeals,  Second  Circuit, 
Jan.  6,  1922,  279  Fed.  Rep.,  844.)  See  act  of 
Apr.  9,  1906,  sec.  3,  quoted  above  under  this 
article,  which  recognized  the  Secretary's  au- 
thority to  review  courts-martial. 

Section  9  of  the  act  of  February  16,  1909 
(quoted  above  under  this  article),  makes  the 
sentences  of  any  naval  com"ts-martial  in  a  sense 
conditional  upon  the  approval  of  the  Secretary 
of  the  Navy,  who  is  given  power  to  set  aside 
the  proceedings  and  to  remit  or  mitigate,  in 
whole  or  in  part,  the  sentence  imposed.  We 
are  not  now  called  upon  to  consider  all  possible 
questions  and  difficulties  which  might  arise 
under  this  provision.  (U.  S.  ex  rel.  Hams  v. 
Daniels,  MacDonald,  et  al.,  U.  S.  Circuit  Court 
of  Appeals,  Second  Circuit,  Jan.  6,.  1922,  279 
Fed.  Rep.,  844.) 

Under  the  Articles  for  the  Government  of  the 
Navy  of  July  17,  1862  (12  Stat.,  600),  neither 
the  President  nor  the  Secretary  of  the  Navy  had 
lawful  authority  to  approve  or  disapprove  the 


1042 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  53. 


sentence  of  dismissal  in  the  case  of  an  acting 
master's  mate,  who  was  not  a  commissioned  or 
■warrant  officer,  but  the  approval  and  confirma- 
tion of  the  commander  of  the  fleet,  being  the 
officer  who  ordered  the  court,  was  all  that  was 
requii'ed  to  give  validity  to  the  execution  of 
the  sentence.  The  sentence  in  such  a  case 
ha^dng  in  fact  been  approved  by  the  Secretary 
of  the  Navy,  his  approval  was  a  nullity,  and 
no  occasion  is  presented  for  a  reN-iew  of  the  Sec- 
retary^'s  action  by  the  President  Avith  a  \dew  of 
setting  aside  the  Secretary's  order,  after  the 
sentence  had  been  approved  by  the  commander 
of  the  fleet  who  ordered  the  court  and  carried 
into  execution.     (11  Op.  Atty.  Gen.,  251.) 

That  no  one  can  lawfully  act  as  re\'iewing 
authority  unless  expressly  authorized  by 
statue,  see  note  to  article  38,  A.  G.  N.,  under 
"Statutory  authority  necessary  to  convene 
coxirts." 

Action  by  ofla.cer  not  empowered  to  con- 
firm sentence. — ^^^lile  an  officer  convening  a 
court-martial  may  not  have  the  power  to  con- 
firm and  execute  the  sentence,  he  has  still  abso- 
lute power  to  disapprove  and  annul  it.  (16  Op. 
Atty.  Gen.,  312,314.) 

It  is  undoubtedly  the  proper  practice  for  the 
convening  authority,  in  transmitting  the  pro- 
ceedings to  the  authority  having  the  power  to 
execute  the  sentence,  to  subscribe  a  formal 
approval  of  the  same,  if  he  does  not  disapprove 
of  it;  but  the  failure  to  state  such  approval  can 
not  be  construed  as  a  disapproval.  (16  Op. 
Atty.  Gen.,  312,  314.) 

Under  the  Articles  for  the  Government  of  the 
Navy,  the  rear  admiral  convening  the  court 
was  not  obliged  to  confirm  the  sentence  of  dis- 
missal. As  the  sentence  in  this  case  extended 
to  dismissal  from  the  service,  no  confirmation 
was  necessary  by  the  convening  authority, 
whose  duty  was  discharged  by  forwarding  the 
papers  to  the  President.  (Bishop  v.  U.  S.,  197 
U.  S.,  334,  341.) 

Action  of  Judge  Advocate  General. — 
Section  1199,  Re\ised  Statutes,  making  it  the 
duty  of  the  Judge  Advocate  General  of  the 
Army  to  "receive,  revise,  and  cause  to  be  re- 
corded the  proceedings  of  all  courts-martial," 
does  not  confer  authority  upon  that  officer  to 
reverse  the  proceedings  of  courts-martial.  (Ex 
parte  Mason,  256  Fed.  Rep.,  384,  387.)  _ 

Applying  the  rule,  "noscitur  a  sociis,"  the 
word  "re\ase  "  is  to  be  read  in  connection  with 
the  words  that  precede  and  follow  it,  and,  thus 
read,  the  duty  it  imposes  is  analogous  to  the 
duty  of  receiving  and  recording  the  proceedings. 
The  language  employed  is  more  appropriate  to 
indicate  the  discharge  of  clerical  duties  than 
the  power  to  affirm,  reverse,  or  modify  the  pro- 
ceedings of  courts-martial.  (Ex  parte  Mason, 
256  Fed.  Rep.,  384,  387.) 

It  is  not  intended  to  intimate  that  it  is  not 
the  province  and  the  duty  of  the  Judge  Advo- 
cate General  to  revise  the  proceedings  of  courts- 
martial  so  far  as  may  be  necessary  to  rectify 
errors  of  form,  and  to  point  out  errors  of  sub- 
stance which,  in  his  judgment,  should  be  cor- 
rected by  the  proper  authorities;  nor  is  it 
doubted  that,  as  to  all  such  topics  as  are  within 
the  purview  of  his  official  scrutiny,  his  opinion 
is  entitled  to  that  respectful  consideration 
which  is  due  to  the  dignity  and  importance  of 


the  position  which  he  holds.     (Ex  parte  Mason, 
256  Fed.  Rep.,  384,  387.) 

See  act  of  June  8,  1880,  quoted  above,  under 
this  article,  as  to  duties  of  Judge  Advocate 
General  of  the  Navy. 

Reconvening  of  covirt  for  revision  of 
proceedings  and  sentence.— The  President 
may  direct  a  naval  court-martial  to  reconsider 
their  judgment  in  cases  where  his  previous 
sanction  is  necessary  for  the  execution  of  such 
judgment;  as  to  his  power  in  other  cases,  no 
opinion  expressed.     (4  Op.  Atty.  Gen.,  19.) 

In  militarj^  courts-martial,  the  power  of  the 
commander  by  whom  they  have  been  con- 
vened to  direct  them,  in  the  event  of  disap- 
proval, to  revise  their  sentence  and  reconsider 
the  proceedings,  has  never  been  doubted;  and 
it  is  rested  solely  upon  the  ground  that  the 
sentences  of  such  courts  are  not  to  be  put  in 
execution  until  approved  by  that  conunander. 
(4  Op.  Atty.  Gen.,  19.) 

The  revisal  of  a  sentence  by  the  same  coiu"t 
which  pronounced  it  is  not,  properly  speaking, 
an  appeal,  which  always  implies  the  review  by 
one  court  of  judicature  of  the  sentence  of  an- 
other. It  is  no  more  than  the  reconsideration 
of  the  case  by  the  same  tribunal  on  a  remittal 
and  recommendation  of  the  commander,  who 
is  authorized  to  approve  or  suspend  its  sen- 
tences.    (1  Op.  Atty.  Gen.,  296.) 

Where  an  officer  of  the  Army  was  brought  to 
trial  before  a  court-martial  for  conduct  unbe- 
coming an  officer  and  a  gentleman,  and  he 
pleaded  in  bar  of  trial  that  he  had  been  tried 
on  the  same  facts  in  a  State  court  upon  the 
charge  of  manslaughter,  and  his  plea  in  bar  was 
sustained  by  the  court-martial,  whose  judg- 
ment was  properly  disapproved  by  the  com- 
manding general;  but  the  latter  omitted  to  or- 
der a  revisal  by  the  court:  Held,  that  it  would 
be  clearly  too  late  for  his  successor  to  order  such 
a  revisal  if  the  court  had  in  the  meantime  been 
dissolved;  and  if  not  dissolv^ed,  the  Attorney 
General  would  nevertheless  be  strongly  in- 
clined to  think  it  too  late  to  order  a  revisal  by 
the  same  court  after  a  lapse  of  two  years  from 
the  date  of  the  original  proceedings;  but  an  ex- 
amination of  precedents  may  disclose  that  they 
have  settled  the  practice  the  other  wav.  (3 
Op.  Atty.  Gen.,  749.) 

It  is  in  the  power  of  the  Secretaiy  or  other 
authority  appointing  a  court-martial  to  order 
the  case'  back  for  revision,  both  in  the  Army 
and  Navy.  But  this  must  be  done  before  the 
court  has  actually  been  dissolved,  or  before  it 
has  adjourned  v\ithout  day,  which  is  to  all  prac- 
tical purposes  the  dissolution  of  a  court-martial. 
(6  Op.  Atty.  Gen.,  200.) 

Where  a  court-martial,  having  passed  sen- 
tence, adjourned  without  day,  no  question 
exists  as  to  the  legality  of  an  order  subsequently 
issued  by  the  Secretan,^  of  War,  who  convened 
the  court,  ordering  it  to  reassemble  to  revise  its 
sentence,  it  being  presumed  that  such  adjourn- 
ment was  the  act  of  the  court  only,  which  had 
no  lawful  power  to  terminate  its  own  existence, 
and  which  adjourned  without  day  to  await  the 
action  of  the  department.  If  there  had  been 
some  order  of  the  Secretary  of  War,  in  whatever 
form  of  words,  to  operate  as  a  dissolution  of  the 
court,  then  it  would  be  necessary  to  say  that  it 
could  not  be  convened  anew  as  the  same  court, 


1043 


Sec.  1624,  Art.  53. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


and  of  course  could  not  take  up  the  proceedings 
for  reconsideration.  But  tlie  present  appears  to 
have  been  the  case  of  a  court,  not  then  dis- 
solved by  the  appointing  power,  and  of  course 
subject  to  be  assembled  for  reA-ising  its  record, 
as  it  was  by  the  order  of  the  department.  (7 
Op^  Atty.  Gen.,  338.) 

The  power  of  the  Secretary  of  War,  or  the  Sec- 
retary of  the  NaA^,  or  other  lawful  authority,  to 
send  back  a  case  to  the  court-martial  for  re\isal, 
is  called  a  singularity  in  jurisprudence.  On  the 
other  hand,  its  apparent  singularity  arises  from 
not  duly  regarding  the  nature  of  a  court-martial 
and  its  relation  to  the  approAdng  power.  Un- 
less the  sentence  of  a  court-martial  has  been 
approved  or  disapproved,  it  still  remains  sub 
judice.  In  fact,  the  analogy  of  a  court-martial 
is  that  of  a  jiuy  in  the  trial  of  a  civil  case,  the 
appro\'ing  power  in  the  former  occupying  the 
relation  of  the  judge  in  the  latter.  The  judge 
remands  the  case  to  the  jury  for  further  consid- 
eration. The  verdict  must'be  accepted  by  the 
judge  and  judgment  rendered  accordingly,  be- 
fore the  verdict  can  have  its  complete  execu- 
tion and  effect,  whether  of  con\iction  or  ac- 
quittal. So  in  the  corresponding  case  it  must 
be  with  the  proceedings  of  a  court-martial  as 
respects  the  approiing  power.  (6  Op.  Atty. 
Gen.,  200,  206.) 

Revisal  by  a  court-martial  is  not  a  case  of 
new  trial.  A  new  trial  is  a  rehearing  of  the 
case.  A  court-martial  on  re\dsal  does  not  re- 
hear the  case;  it  only  reconsiders  the  record  for 
the  purpose  of  correcting  or  modifying  any 
conclusions  thereon.  The  true  analogy  of  such 
a  re\isal,  to  take  an  example  from  the  practice 
of  ciAdl  courts,  is  the  case  of  a  jury  sent  out  by 
the  coiu't  to  reconsider  its  verdict.  Such  is  the 
whole  current  of  authorities  as  well  in  the 
United  States  as  in  Great  Britain.  (6  Op. 
Atty.  Gen.,  200.) 

If  the  jury,  through  mistake  or  evident  par- 
tiality, deliver  an  improper  or  an  informal  or 
insensible  verdict,  they  may  he  directed  by  the 
court  to  reconsider  it  and  remanded  for  that 
purpose;  but  it  is  unheard  of  that  after  the  dis- 
missal of  the  jury  and  the  adjournment  of  the 
court  without  day  the  judge  shall  at  a  subse- 
quent time  reassemble  the  jurors  and  call  upon 
them  to  re\dse  their  verdict.  This  doctrine, 
which  is  reasonable  in  itself,  must  be  applied 
to  the  question  of  re\i8al  by  courts-martial. 
(6  Op.  Atty.  Gen.,  200.) 

It  is  doubtful  if  the  approving  power  in  this 
country  may  send  a  court-martial  back  for  re- 
vision any  number  of  times.  By  law  in  Eng- 
land before  the  Revolution  it  was  enacted  that 
a  re\-isal  shall  be  ordered  only  once,  and  it  is 
the  general  rule  that  English  statutes  passed 
before  the  Revolution  and  in  amendment  of  the 
common  law  are  to  be  assiuned  as  part  of  the 
common  law  of  the  colonies.  (6  Op.  Atty.  Gen. , 
200,  203,  204.) 

The  power  of  revisal  is  one  which  involves 
much  contingent  delay  and  consequent  hard- 
ship to  the  officer  on  trial,  and  therefore  is  not 
one  to  be  favored,  or  at  least  not  to  be  main- 
tained in  violation  of  any  principle  of  general 
right  and  justice  appertaining  to  the  govern- 
ment of  the  Army  or  Navy.  (6  Op.  Atty.  Gen. , 
200,  208.) 


Where  the  sentence  of  a  court-martial  was  re- 
turned by  the  Secretary  of  the  Navy  for  revision, 
and  a  new  and  more  severe  sentence  substi- 
tuted by  the  court,  which  latter  sentence  was 
mitigated  by  the  President,  and  it  was  there- 
after contended,  on  behalf  of  the  accused,  that 
the  proceedings  in  re^'ision  were  null  and  void 
and  that  the  first  sentence  only  should  be  exe- 
cuted: Held,  that  if  the  proceedings  in  revision 
were  void,  then  all  which  went  before  is  void; 
because  the  first  sentence  of  the  court  has  never 
been  approved,  and  it  is  too  late  now  to  do  it, 
the  President  ha\'ing  in  the  meantime  remitted 
and  pardoned  so  much  of  the  second  sentence 
as  remained  unexecuted.  (6  Op.  Atty.  Gen., 
200,  203. ) 

The  officer  convening  a  na^•al  court-martial 
has  authority  to  send  back  to  the  court  the 
record  of  its  proceedings  in  any  trial,  with  the 
finding  and  sentence,  for  the  reconsideration  of 
such  coui't  as  to  revision  of  the  sentence ;  and  the 
court  is  authorized  to  take  up  the  case  and  revise 
it,  notwithstanding  that  it  has  in  the  meantime 
proceeded  with  another  trial,  and  notwithstand- 
ing that  one  member  of  the  coiKt  who  partici- 
pated in  the  original  sentence  had  been  de- 
tached during  the  succeeding  trial  and  resumed 
his  seat  to  participate  in  the  revision  of  the  orig- 
inal sentence;  the  substituted  member,  who 
took  his  place  during  the  second  case,  with- 
drawing and  not  participating  in  the  revision  of 
the  original  sentence.  (In  re  Reed,  20  Fed. 
("as.  No.  11636.) 

Where,  pursuant  to  regulations,  a  general 
court-martial  is  duly  ordered,  the  officer  clothed 
with  the  reviewing  authority  may,  before  it  ia 
dissolved,  direct  it  to  reconsider  its  proceedings 
and  sentence ;  and  if  it,  upon  being  reconvened, 
renders  a  more  severe  sentence,  which  he  ap- 
proves, such  sentence  can  not  be  collaterally 
impeached  for  mere  errors  or  irregularities,  if 
any  such  were  committed  by  the  court  while 
acting  within  the  sphere  of  its  authority.  (Ex 
parte'^Reed,  100  U.  S.,  13.) 

A  naval  court-martial  which  has  returned  its 
proceedings  to  the  Secretary  of  the  Navy  and 
been  adjourned  by  him  until  further  order  may 
be  reconvened  by  him  to  reconsider  those  pro- 
ceedings.    (Smitii  V.  Whitney,  116  U.  S.,  167.) 

The  action  of  the  President  in  twice  returning 
the  proceedings  of  a  court-martial  convened  by 
him,  urging  a  more  severe  sentence,  was  author- 
ized by  law;  and  a  sentence  made  after  such 
action  and  in  consequence  of  it  was  valid. 
(Swaim  v.  U.  S.,  165  U.  S.,  553,  564.) 

As  to  absence  of  members  on  revision,  see  note 
to  article  46,  A.  G.  N. 

Court  reconvening  of  its  own  motion  for 
revision  of  sentence. — Courts-martial  have 
power  to  reconsider  any  judgment  and  sentence 
rendered  by  them,  during  the  term  or  sitting, 
and  to  change  the  judgment  and  sentence,  even 
to  death,  where  the  former  imposed  only  im- 
prisonment.    (1  Op.  Atty.  Gen.,  296.) 

In  this  case  the  court  sentenced  the  accused 
to  confinement  at  hard  labor  with  a  ball  and 
chain  attached  to  his  leg  for  the  remaining  term 
of  his  enlistment,  etc.;  and  having  adjourned 
until  the  ensuing  day,  at  the  suggestion  of  one 
of  the  members  of  the  court  the  sentence  in  the 
case  was  reconsidered,  and  after  due  deliberation 


1044 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  53. 


the  court  substituted  the  sentence  that  he,  the 
accused,  '"be  shot  to  death."  (1  Op.  Attv. 
Gen.,  296. 1 

The  term  of  a  court-martial  continues  from 
the  time  of  its  assemblage  until  its  adjournment 
sine  die.  A  general  court-martial  convened  for 
general  purposes,  that  is,  for  the  trial  of  such 
prisoners  as  may  be  bi'ought  before  it,  continues 
a  court  with  full  powers  while  it  has  any  busi- 
ness to  do,  of  which  it  alone  is  the  judge;  and 
while  it  does  so  continue  a  court,  its  power  of 
judicial  deliberation  and  decision  over  all  the 
subjects  which  may  have  1  'een  brought  before  it 
is  as  full  on  the  last  day  of  its  sittings  as  on  any 
preceding  day.     (1  Op.  Atty.  Gen.,  296.) 

Accorchng  to  the  authorities  on  military  law, 
the  court  is  not  dissoh^ed  even  ])y  its  own  ad- 
journment sine  die;  but  can  be  finally  dis- 
solved only  by  the  authority  of  the  officer  who 
called  it,  being,  until  such  dissolution,  subject 
to  be  reconvened  by  his  order  to  reconsider  the 
opinion  thev  have  expressed.  (1  Op.  Atty. 
Gen.,  296.)  " 

Dismissal;  acting  master's  mate. — An 
acting  master's  mate  is  not  a  warrant  officer  of 
the  Navy.  A  sentence  dismissing  him  from 
the  ser\'ice  by  a  court-martial  convened  by  the 
commander  of  a  fleet  may  be  lawfully  executed 
on  the  confinnation  of  the  officer  ordering  the 
court.     (11  Op.  Atty.  Gen.,  251.) 

Reduction  of  officer  to  rating  of  sea- 
man.— -It  is  deemed  ad\'isable,  as  a  matter  of 
policy,  although  not  specifically  required  by 
statute,  to  submit  to  the  President  for  confinna- 
tion the  sentence  of  a  general  court-martial 
reducing  a  warrant  officer  to  the  rating  of  ordi- 
naiy  seaman  (now  seaman,  second  class),  inas- 
much as  such  sentence  deprives  the  accused  of 
his  position  as  a  warrant  officer  in  the  Navv. 
(Xavy  Dig.,  1916,  p.  517;  C.  M.  O.  11-1916; 
C.  M.  0.  18.5-1919;  see  art.  9,  A.  G.  N.) 

Promulgation  of  sentence. — The  promul- 
gation of  the  sentence  of  a  court-martial  does 
not  affect  the  validity  of  the  sentence,  which 
becomes  final  and  operative  when  approved  by 
proper  authority.  (Lvon  v.  U.  S.,  48  Ct.  Cls., 
SO.') 

The  promulgation  of  the  sentence  of  a  court- 
martial  is  for  the  information  of  the  public,  and 
particularly  for  the  information  of  the  military 
arm  of  the  Government.  (Lyon  v.  U.  S.,  48  Ct. 
Cls.,  30.) 

If  promulgation  were  essential,  the  lapse  of 
time  after  approval  would  not  operate  either  to 
nullifj^  or  modify  the  sentence,  but  would  relate 
back  and  make  effective  such  proceedings. 
(Lyon  r.  U.  S.,  48  Ct.  Cls.,  30.) 

Judgment  of  court-martial  as  to  la^w  and 
facts.  —The  court  which  hears  the  witnesses  is 
best  qualified  to  scrutinize  and  balance  their 
testimony,  possessing  as  it  does  the  advantage  of 
personal  contact  and  observ'ation  so  essential  in 
reaching  a  just  conclusion  from  lengthy  and 
conflicting  statements.  fl8  Op.  Atty.  Gen., 
113,  119.) 

It  is  improper  for  the  re^ising  authority  to 
make  any  decision  in  regard  to  the  effect  of  a 
certain  act  of  Congress  in  cases  where  the  record 
is  defective.  (3  Op.  Atty.  Gen.,  545.  In  this 
case  the  question  was  presented  as  to  the  effect 
of  the  law  contained  in  sec.  1422,  R.  S.,  as  ap- 
plied to  one  who  enlisted  prior  to  the  date 


thereof,  and  who  was  charged  with  disobedience 
of  orders  committed  after  the  date  his  enlistment 
would  have  expired  except  for  said  act.  See 
note  to  sec.  1422.) 

When  charges  have  been  referred  to  a  general 
court-martial  which  they  have  jurisdiction  to 
try,  the  questions  of  what  finding  should  be 
had  upon  them,  whether  the  accused  should  be 
found  guilty  and  sentenced  to  punishment,  or 
whether  for  want  of  satisfactory  proof  or  by 
reason  of  special  circmnstances  attending  it  he 
is  entitled  by  law  to  an  acquittal  and  exemp- 
tion from  punishment,  are  questions  to  be  dis- 
posed of  by  the  court  according  to  their  judg- 
ment, acting  under  the  solemn  sanction  of  their 
oaths  and  obligations.  In  this  respect  their 
powder  is  full.     (4  Op.  Atty.  Gen.,  410,  412. ) 

In  the  absence  of  any  such  error  of  the  court 
in  the  admission  or  rejection  of  testimony  as 
would  work  or  was  liable  to  work  injustice  to 
the  accused,  there  is  no  reason  on  these  grounds 
to  disturb  the  findings  of  the  court.  (22  Op. 
Atty.  Gen.,  589.) 

Of  questions  not  depending  upon  the  con- 
struction of  statutes,  but  upon  unwritten  mili- 
tary law  or  usage,  within  the  juriscUction  of 
courts-martial,  military  or  naval  officers,  from 
their  training  and  experience  in  the  service, 
are  more  competent  judges  than  the  courts  of 
conmion  law.  (Smith  v.  Wliitney,  116  U.  S., 
167,  178.) 

See  below,  under  "Jurisdiction  of  ci\il 
courts";  and  see  note  to  article  42,  A.  G.  N., 
under  "Admissibility  of  e\'idence;  decision  of 
court-martial." 

Objections  to  charges  and  specifica- 
tions.— An  objection  to  the  charges  and  specifi- 
cations on  technical  grounds  should  be  promptly 
taken  by  the  accused,  and  comes  too  late 
after  he  proceeded  to  trial  without  objection 
and  permitted  the  court  to  enter  on  an  investi- 
gation into  all  the  different  specifications  and 
himself  brought  forward  his  defense  as  to  each 
of  them,     m  Op.  Atty.  Gen.,  589,  595.) 

Irregularities  and  fatal  defects. — It  is  a 
vain  conceit  that  because  the  proceedings  are 
irregular,  and  fatally  irregular  (if  the  exception 
be  taken  in  proper  time),  therefore  the  judg- 
ment once  suffered  to  be  entered  up  is  void. 
There  are  many  things  in  the  summoning  and 
constitution  of  juries  and  in  the  conduct  of 
a  trial  that  make  the  verdict  void;  yet  if  ad- 
vantage be  not  taken  of  them  by  motion  in 
arrest  of  judgment,  no  writ  of  error  lies  even 
where  there  is  a  competent  court  of  errors. 
And  it  is  veiy  proper  it  should  be  so ;  the  repose 
of  society,  the  putting  an  end  to  controversy 
and  litigation,  are  more  desirable  than  mere 
accuracy  of  procedure,  or  even  the  justice  of  a 
particular  case,  not  to  mention  that  acquies- 
cence implies  consent,  and  consent  cures  error. 
(4  Op.  Atty.  Gen.,  170.) 

Commodore  Barron  was  tried  by  a  competent 
court-martial  whose  sentence  was  approved  by 
the  President.  After  the  lapse  of  35  years  it  is 
impossible  for  the  executive  department  to  look 
into  the  particulars  of  the  trial,  on  an  allegation 
that  it  wasirregular.  If  there  were  irregularities 
in  the  trial,  they  should  have  been  alleged  before 
the  sentence  was  confirmed.  (4  Op.  Atty.  Gen., 
170.  In  this  case  the  question  was  attempted 
to  be  raised  whether  the  fact  that  witnesses 


1045 


Sec.  1624,  Art.  53. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


were  sworn  by  the  judge  advocate  and  not 
by  the  president  of  the  court,  there  being  no 
objection  at  the  time,  Wtiated  tlie  proceedings.) 

If  a  contrary  precccU^nt  were  set,  tlie  Navy 
Department  and  the  oflice  of  the  Attorney  Gen- 
eral woidd  be  turned  into  a  permanent  court  of 
errors,  to  try  over  all  the  cases  disposed  of  since 
the  foundation  of  the  Government.  And  if  the 
present  Sei-retary  of  the  Na\'y  can  set  aside  a 
judgment  of  bis  predecessors,  why  shall  not  any 
of  his  successors  for  50  vears  to  come  set  aside 
his?    (4  Op.  Atty.  Gen.',  170.) 

Even  though  it  appear  that  the  proceedings 
of  a  naval  court-martial  were  exceedingly  ir- 
regular, and  the  sentence  peculiarly  harsh  and 
severe,  after  the  sentence  of  dismissal  has  been 
pronounced,  approved,  and  carried  into  effect 
there  is  no  means  of  reviewing  it;  the  judgment 
is  thereafter  irreversible,  but  the  effect  of  the 
judgment  may  be  removed  in  the  exercise  of 
the  appointing  power.    (4  Op.  Atty.  Gen.,  274.) 

Where  an  officer  was  dismissed  from  the  serv- 
ice pursuant  to  the  sentence  of  a  court-mar- 
tial, which  sentence  was  null  and  void  because 
the  court  was  illegally  constituted,  held  that 
as  it  was  competent  to  the  President  to  per- 
form this  act  independently  of  the  sentence, 
it  v,-ill  be  necessary,  in  order  to  restore  him  to 
his  rights,  to  nominate  him  to  the  Senate  with 
the  condition  that  he  shall  take  rank  from  the 
date  of  his  former  commission.  (2  Op.  Atty. 
Gen., 414;  seealso Brown  r.  Root,  18App.  D.  C, 
239;  compare  U.  S.  v.  Brown,  206  U.  S.,  240.) 

After  the  sentence  of  an  officer  of  the  Army 
by  a  court  ha\'ing  j  urisdiction  has  been  approved 
and  executed  by  one  President,  it  can  not  be 
re\dsed  bv  his  successor.  (6  Op.  Atty.  Gen., 
506.) 

In  the  consideration  of  all  questions  of  this 
class,  the  distinction  to  be  remembered  is  that 
of  things  void  and  things  voidable;  null  for  want 
of  jurisdiction,  or  erroneous  only,  for  misjudg- 
ment  of  a  tribunal  having  competent  jurisdic- 
tion to  hear  and  determine  the  case.  If  the  court 
had  not  lawful  cognizance  of  the  matter,  its  sen- 
tence is  void,  it  gives  no  right,  it  bars  no  right, 
it  binds  nobody,  and  all  concerned  in  executing 
such  a  sentence  are  trespassers.  If  the  court  has 
jurisdiction,  it  may  rightfully  decide  every  ques- 
tion which  occurs  in  the  case,  and  the  errors  and 
irregularities,  if  any  exist,  are  to  be  corrected 
by  some  direct  proceeding  before  the  same  court 
to  set  them  aside,  or  in  an  appellate  court.  (6 
Op.  Atty.  Gen.,  506.) 

If  the  court  erroneously  overruled  a  plea  in 
bar  of  trial  based  on  the  statute  of  limitations, 
it  would  be  an  erroneous  decision  only,  not  a 
void  judgment,  and  the  error  would  be  subject 
to  be  reviewed  and  corrected  only  by  the  com- 
manding general.    (6  Op.  Atty.  Gen.,  506.) 

WTiere  an  officer  of  the  Navy  was  tried  by 
court-martial  and  sentenced  to  d.ismissal,  which 
sentence  was  approved  by  the  President  of  the 
United  States  and  duly  carried  into  effect  by 
the  Secretary  of  the  Navy,  held  that  the  dis- 
missal is  a  consummated  fact,  whether  the  sen- 
tence was  lawful  or  not,  and  if  the  party  be  re- 
stored to  the  serxdce  it  can  only  be  by  renom- 
ination  to  the  Senate  and  reappointment.  (7 
Op.  Atty.  Gen.,  98.) 

In  the  present  stage  of  the  case,  no  question 
on  the  proceedings  of  the  court  can  be  raised 


save  that  of  nullity  of  the  sentence  for  want  of 
jurisdiction.  Such  a  question  is  one  of  pure  and 
strict  legal  right  in  the  consideration  of  which 
no  collateral  element  can  by  possibility  enter, 
whether  of  regard  or  of  disregard  for  the  dis- 
missed officer.  It  must  be  dealt  with  in  tlio  same 
spirit  as  the  solution  of  a  problem  of  arithmetic 
or  algebra.     (7  Op.  Atty.  Gen.,  98.) 

There  is  a  multitude  of  irregularities  in  the 
proceedings  of  courts,  whether  martial  or  others, 
which  a  party  may  avail  himself  of  to  his  ad\'an- 
tage  at  the  projier  time.  Where  the  accused  did 
not  see  fit  to  make  any  question  of  this  natiire 
at  the  proper  time,  it  is  too  late  for  him  to  do  so 
after  the  sentence  has  been  duly  confirmed  and 
executed.     (7  Op.  Atty.  Gen.,  98.) 

It  is  well  settled  that  it  is  beyond  the  power 
of  the  President  to  annul  or  revoke  the  sentence 
of  a  court-martial  which  has  been  approved 
and  executed  under  a  former  President,  unless 
the  record  should  show  that  from  some  cause 
the  proceedings  are  absolutely  null  and  void. 
The  rule  is  not  confined  to  cases  in  which  by 
the  articles  of  war  the  sentence  of  the  court  is 
required  to  be  approved  by  the  President.  (10 
Op.  Atty.  Gen..  64.) 

If  any  irregularities  occurred  in  the  proceed- 
ings of  the  court-martial,  it  was  the  right  and 
duty  of  the  accused  to  have  taken  exception  to 
them  before  they  were  approved  and  con- 
firmed by  the  commanding  officer.  Having 
neglected  to  do  so,  he  has  no  redress  except  by 
an  appeal  to  the  executive  clemency.  (10 
Op.  Atty.  Gen.,  64.) 

The  accused  being  a  soldier  in  the  United 
States  service,  and  therefore  amenable  to  a 
court-martial,  and  the  court  having  been  con- ' 
vened  by  the  proper  authority  and  composed 
of  the  proper  officers,  duly  qualified  to  act, 
and  therefore  being  lawfully  constituted  and 
ha^dng  undoubted  jurisdiction  of  the  case,  it 
is  impossible  that  any  subsequent  irregularities 
could  render  their  action  a  nullity  when  it  was 
confirmed  without  objection  by  the  command- 
ing officer  and  carried  into  execution  by  the 
President  of  the  United  States.  (10  Op.  Atty. 
Gen.,  64.) 

The  sentence  of  a  military  commission  in  a 
case  in  which  it  was  without  jurisdiction  was 
null  and  void;  the  moneys  and  effects  of  the 
accused,  seized  by  officers  of  the  Government 
in  execution  of  so  much  of  the  sentence  as  im- 
posed a  fine  of  $10,000,  should  be  restored  to 
the  accused,  unless  they  have  been  covered 
into  the  Treasury  of  the  "United  States  and  are 
thus  beyond  the  control  of  the  executive.  (12 
Op.  Atty.  Gen.,  128.) 

There  must  be  jurisdiction  to  give  the 
judgment  rendered  as  well  as  to  hear  and  deter- 
mine the  cause.  If  a  magistrate  having  au- 
thority to  fine  for  assault  and  battery  should 
sentence  the  offender  to  be  imprisoned  in  the 
penitentiary  or  to  suffer  the  punishment  pre- 
scribed for  homicide,  his  judgement  would  be 
as  much  a  nullity  as  if  the  preliminaiy  juris- 
diction to  hear  and  determine  had  not  existed. 
Every  act  of  a  court  beyond  its  jurisdiction  is 
void.     (Ex  parte  Reed,  100  U.  S.,  13,  23.) 

Where  there  is  no  law  authorizing  the  court- 
martial,  or  where  the  statutory  conditions  as 
to  the  constitution  or  jurisdiction  of  the  court 
are  not  observed,  there  is  no  tribunal  authorized 


1046 


The  Navy, 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  53. 


by  law  to  render  the  judgment.  In  such  case 
the  sentence  of  the  court  is  absolutely  void. 
(Keyes  v.  U.  S.,  109  U.  S.,  336,  340.)_ 

It  is  not  always  very  easy  to  determine  what 
matters  go  to  the  jurisdiction  of  a  court,  so  as  to 
make  its  action  when  erroneous  a  nullity;  but 
the  general  rule  is  that  when  the  court  has 
jurisdiction  by  law  of  the  offense  charged  and 
of  the  party  who  is  charged,  its  judgments  are 
not  nulHties.  (Carter i'. McClaughrv,  183U.  S., 
365,  390.) 

An  erroneous  designation  of  the  place  for 
executing  a  sentence  of  imprisonment  imposed 
by  a  court-martial  does  not  go  to  the  jurisdic- 
tion to  sentence,  and  does  not  entitle  the  ac- 
cused to  his  discharge  on  habeas  corpus;  but  he 
should  be  retained  in  custody  for  a  new  designa- 
tion. (Givens  r.  Zerbst,  255  U.  S.,  11,  affirm- 
ing ex  parte  Givins,  262  Fed.  Rep.,  702.) 

Presence  of  the  judge  advocate  in  closed 
court:  See  note  to  article  45,  A.  G.  N. 

For  other  cases,  see  below  under  "Jurisdic- 
tion of  ci\il  courts' ' ;  and  see  notes  to  Articles 
38,  39,  40,  42,  46.  47,  and  52,  A.  G.  N. 

New  trial. — The  President  of  the  United 
States  has  the  power  to  order  a  new  trial  before 
a  court-martial  where,  in  his  opinion,  the  court 
erred  on  the  first  trial  in  excluding  proper 
testimony  and  where  the  party  accused  desired 
such  new  trial.     (1  Op.  Atty.  Gen.,  233.) 

The  plea  of  autre  foits  acquit,  or  con\dct,  is 
the  pri\'ilege  of  the  accused,  which  he  may  use 
or  waive  at  pleasure;  if  he  does  not  choose  to 
vise  it,  courts-martial  vriW  not  take  notice  of  it 
so  as  to  bar  a  trial.     (1  Op.  Atty.  Gen.,  233.) 

WTiere  the  proceedings  of  a  naval  court- 
martial  were  irregular  and  void,  because  the 
i"udge  advocate  was  not  sworn,  the  accused  may 
)e  legally  and  constitutionally  put  upon 
another  trial;  but  not  before  the  same  officers 
who  constituted  the  first  court.  (3  Op.  Atty. 
Gen.,  396;  compare  note  to  art.  40,  A.  G.  N.) 

He  has  not  been  tried  by  a  tribunal  legally 
competent  to  try  and  punish  him.  In  our  civil 
tribunals,  if  a  party  be  con\-icted  upon  an  in- 
sufficient indictment  and  judgment  be  aiTested, 
the  accused  may  be  again  put  upon  his  trial; 
and  this  is  not  considered  as  an  infraction  of 
that  injunction  of  the  Constitution  which 
forbids  that  any  person  be  twice  put  in  jeopardy 
for  the  same  offense.     (3  Op.  Atty.  Gen.,  396.) 

There  can  not  be  a  new  trial  at  the  instance 
of  the  Government,  although  there  may  be  a 
new  trial  bv  court-martial  on  application  of  the 
party.     (6  "Op.  Atty.  Gen.,  200,  205.) 

See  note  to  Constitution,  fifth  amendment, 
under  "II.  Protection  against  double 
jeopardy." 

Court-martial  bar  to  trial  in  civil  court. — 
Where  the  accused  was  indicted  in  a  civil 
court  of  the  United  States,  duly  arrested  and 
brought  into  court  to  answer  said  indictment; 
whereupon,  before  his  arraignment,  at  the  re- 
quest of  the  Department  of  Justice  he  was  de- 
livered to  the  mihtary  authorities  to  be  dealt 
with  in  accordance  with  military  law;  and 
upon  his  trial  by  Army  court-martial  he  was 
conA-icted  and  sentenced  to  imprisonment  for 
15  years,  but  the  reviewing  authority  took  the 
following  action:  "The  sentence  is  disap- 
proved. Private  Block  will  be  released  from 
confinement  and  restored  to  duty" ;  and  he  was 


thereafter  arraigned  in  the  civil  court  upon  the 
pending  indictment  and  pleaded  former  ac- 
quittal, setting  forth  the  proceedings  which  had 
been  had  by  the  court-martial  and  the  action  of 
the  reviewing  authority  above  quoted:  Held, 
that  the  plea  sets  forth  a  good  defense  and  that 
the  proceedings  before  the  court-martial  con- 
stitute a  bar  to  his  prosecution  in  the  civil 
courts  of  the  United  States  upon  a  charge  based 
upon  the  same  act.  (U.  S.  v.  Block,  262  Fed. 
Rep.,  205.  See  note  above,  under  "Effect  of 
approval  or  disapproval.") 

The  judgment  of  a  court-martial  ha\dng  ju- 
risdiction to  try  an  officer  or  soldier  for  a  crime 
is  entitled  to  the  same  finality  and  conclusive- 
ness as  to  the  issues  involved  as  the  judgment 
of  a  civil  court  in  cases  ^vithin  its  jursidiction  is 
entitled  to.  (Grafton  v.  U.  S.,  206  U.  S.,  333, 
holding  that  a  ci^^.l  court  of  the  Philippine 
Islands  did  not  have  jurisdiction  to  try  a  soldier 
for  an  offense  for  which  he  had  previously  been 
tried  by  Army  court-martial.) 

See  note  to  Constitution,  fifth  amendment, 
under  "II.  Protection  against  double  jeopardy." 

Jurisdiction  of  Congress  to  review 
courts-martial.— The  Attorney  General  ought 
not  to  express  an  official  opinion  to  the  Commit- 
tee on  Mihtary  A  ffairs  on  the  question  whether 
Congress  has  power  to  re\iew  the  sentence  of  a 
general  court-martial.  It  is  for  Congress  itself 
to  consider  and  decide  upon  the  extent  of  its 
power  over  a  matter  of  this  description;  and 
it  would  hardly  be  deemed  to  be  within  the 
legitimate  scope  of  the  duties  of  the  Attorney 
General,  who  is  a  subordinate  officer  of  the  ex- 
ecutive department,  to  attempt  to  mark  out 
the  Umits  of  the  legislative  power.  (2  Op. 
Atty.  Gen.,  499.) 

See  note  to  Constitution,  Article  I,  section  7, 
clause  2,  under  ''Veto  of  bill  authorizing  resto- 
ration of  dismissed  officer,"  and  '  'Veto  of  bill  to 
annul  the  finding  and  sentence  of  a  court- 
martial." 

Competency  as  witness  after  conviction 
by  court-martial. — Conviction  of  a  mihtary 
offense  by  court-martial  does  not  make  a  wit- 
ness incompetent  to  testify  in  the  ci\dl  courts 
in  a  criminal  prosecution.  (Reed  v.  U.  S.,  252 
Fed.  Rep.,  2L) 

Jurisdiction  of  civil  courts. — The  power 
to  hear  and  determine  a  cause  is  jurisdiction. 
There  is  a  distinction  between  jurisdiction  and 
its  exercise.  When  it  appears  on  the  return  to 
a  writ  of  habeas  corpus  that  a  petitioner  is  held 
for  trial  by  a  naval  court-martial  for  offenses 
charged  to  have  been  committed  while  in  the 
naval  service,  the  only  questions  to  be  deter- 
mined by  the  civil  court  are,  whether  the 
court-martial  has  jurisdiction  to  try  the  peti- 
tioner for  the  offenses  charged,  and  is  it  pro- 
ceeding regularly  in  the  exercise  of  that  juris- 
diction.    (In  re  Bogart,  3  Fed.  Cas.  No.  1596.) 

A  court-martial  is  a  lawful  tribunal,  existing 
under  the  Constitution  and  acts  of  Congress, 
and  is  supreme  while  acting  within  the  sphere 
of  its  jurisdiction.  (In  re  Bogart,  3  Fed.  Cas. 
No.  1596.) 

A  former  conviction  and  the  statute  of  limi- 
tations are  matters  of  defense  on  the  merits, 
which  must  be  investigated  in  the  exercise  of 
jurisdiction,  and  not  facts  upon  which  the 
jurisdiction  to  hear  and  determine  the  charge 


1047 


Sec.  1624,  Art.  53. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


depends.  Those  matters  can  not  be  inquired 
into  on  a  petition  for  discharp;e  on  habeas  cor- 
pus.    (In  re  Bo<iart,  3  Fed.  ('as.  No.  1596.) 

Civil  courts  have  no  jurisdiction  to  interfere 
with  the  military  tril)unals  while  proceeding 
refjularly  in  the  exercise  of  their  jurisdiction 
to  try  parties  accused  of  desertion  fi'om  the 
Anny.     (In  re  White,  17  Fed.  Rep.,  723.) 

Courts-martial  are  la^vful  tribunals,  existing 
by  the  same  authority  as  civil  courts  of  the 
United  States,  having  the  same  plenaiy  juris- 
diction in  offenses  by  the  law  military  as  the 
latter  courts  have  In  controversies  within  their 
cognizance;  and  in  their  special  and  more  limi- 
ted sphere  are  entitled  to  as  untrammeled  ex- 
ercise of  their  powers.  (In  re  Davison,  21  Fed. 
Rep.,  618.) 

Provided  a  coiut-martial  has  jmisdiction  to 
hear  and  detennine  and  to  render  the  particu- 
lar judgment  or  sentence  imposed,  however 
erroneous  the  proceedings  may  be,  they  can 
not  be  reviewed  collaterally  by  the  civil 
courts  upon  habeas  corpus.  (In  re  Davison, 
21  Fed.  Rep.,  618.) 

The  military  courts  have  jurisdiction  to  try  all 
military  offenses  committed  by  parties  enUsted 
in  the  military  service  of  the  United  States, 
among  which  is  the  offense  of  desertion.  The 
civil  courts  have  no  authority  to  review,  con- 
trol, or  in  any  manner  interfere  with  the  action 
of  the  mihtary  tribunals  while  regularly  en- 
gaged in  the  exercise  of  their  appropriate 
jurisdiction.  (In  re  Zimmerman,  30  Fed. 
Rep.,  176.) 

In  habeas  corpus  proceedings  to  review  the 
sentence  of  a  naval  court-martial,  the  only 
questions  which  can  be  inquired  into  are  as  to 
the  jurisdiction  of  the  court  over  the  person  of 
the  accused  and  the  offense  charged,  and 
whether  it  acted  within  the  scope  of  its  lawful 
powers.     (In  re  Crain,  8 1  Fed  Rep.,  788.) 

It  has  been  repeatedly  held  that  where  the 
charge  against  a  person  tried  in  a  military  court 
is  %vithin  the  jurisdiction  of  the  court,  and  is 
authorized  by  Army  or  Navy  regulations,  that 
the  manner  of  setting  out  the  offense  is  a  matter 
of  pleading  rather  than  of  jurisdiction;  that  it  is 
for  the  court  having  such  jurisdiction  to  decide 
upon  the  validity  of  the  pleadings  necessary  to 
bring  th at  charge  before  the  court ;  that  the  only 
question  before  the  civil  court  is  whether  or  not 
the  military  court  had  the  right  to  try  and  de- 
termine the  case;  that  the  jurisdiction  of  the 
trial  court  can  not  depend  upon  its  decision  on 
the  merits  of  the  case,  but  upon  the  court's  right 
to  hear  and  decide  it;  that  where  a  military  or 
naval  triliunal  has  the  right  to  try  the  cause, 
even  though  a  civil  court  had  the  concurrent 
right,  the  latter  can'  not  enter  upon  the  consid- 
eration of  the  evidence  adduced  before  the 
court-martial  or  of  the  question  whether  the  ac- 
cused was  guilty  of  the  offense  over  which  the 
military  court  has  jurisdiction;  that  if  the  mili- 
tary court  bad  jurisdiction  to  impose  sentence 
authorized  by  the  regulations  of  the  Army  or 
Navy,  the  ci\  il  court  can  not  pass  upon  the  se- 
verity of  such  sentence;  that  errors  in  law,  how- 
ever numerous,  committed  by  the  trial  court 
in  a  cause  within  its  jurisdiction,  can  be  revised 
only  by  appeal  or  writ  of  error  in  the  court  ex- 
ercising supervisory  jurisdiction;  that  it  is  only 
where  the  trial  court  is  without  jurisdiction  of 


the  person  or  the  cause,  and  the  party  is  sub- 
jected to  illegal  imprisonment,  that  a  WTit  of 
habeas  corpus  may  be  invoked  and  the  party 
discharged  from  imprisonment;  that  civil  courts 
are  not  courts  of  error  (o re\i<?w  the  proceedings 
and  sentence  of  a  court-martial  where  such 
court-martial  has  jurisdiction  of  the  offense  and 
of  the  person  of  the  accused,  has  complied  with 
the  statutory  retjuirements  governing  the  pro- 
ceedings of  the  court,  and  acts  within  the  scope 
of  its  lawful  powers.  (Ex  parte  Dickey,  204 
Fed.  Rep.,  322,  32.5.) 

The  fact  that  power,  wherever  lodged,  may 
be  abused,  furnishes  no  solid  objection  against 
its  exercise,  and  no  just  inference  against  its  ex- 
istence.    (In  re  Bogart,  3  Fed.  Cas.  No.  1,59G.) 

The  Secretary  of  the  Navy  is  the  final  re- 
\'ievving  authority  provided  by  law  to  act  upon 
records  of  courts-martial  in  cases  which  do  not 
extend  to  the  loss  of  life  or  to  the  dismissal  of  a 
commissioned  or  warrant  oflicer;  and  where  he 
approved  a  sentence  of  imprisonment  imposed 
upon  an  enlisted  man  by  a  court-martial  con- 
vened by  the  commander  in  chief  of  the  Atlan- 
tic Fleet,  who  had  also  approved  such  sentence, 
the  sentence  could  not  be  re^^sed  bv  the  civil 
courts.  (Ex  parte  Dickev,  204  Fed.  'Rep.,  322, 
326.) 

The  powers  conferred  on  Congress  by  the  Con- 
stitution to  make  rules  for  the  government  and 
regulation  of  the  land  and  naval  forces,  and  the 
power  to  create  certain  Federal  courts,  are  inde- 
pendent of  each  other,  and  hence  the  determi- 
nation of  naval  courts-martial  within  their  juris- 
diction are  not  reviewable  by  the  civil  courts. 
(Ex  parte  Dickey,  204  Fed.  Rep.,  322. ) 

Civil  courts  have  no  appellate  jurisdiction  to 
review  the  proceedings  of  courts-martial;  and 
will  not  interfere  mth  the  judgments  of  courts- 
martial  in  habeas  corpus  proceedings  if  it  ap- 
pears that  they  have  j  urisdiction  of  the  person 
and  subject  matter.  Errors  of  procedure  in 
military  courts  can  be  corrected  only  by  the 
proper  military  authorities.  (Ex  parte  Tucker, 
212  Fed.  Rep.,  569.) 

A  civil  court  has  no  power  to  interfere  with 
the  conduct  of  a  court-martial  except  where  that 
court  has  exceeded  its  jurisdiction,  and  if  it 
originally  had  jurisdiction  it  must  be  shown  that 
at  some  point  in  the  proceedings,  under  its  gov- 
erning law,  it  lost  such  jurisdiction.  (U.  S.  v. 
Hunt,  254  Fed.  Rep.,  365.) 

The  suing  out  and  service  of  a  writ  of  habeas 
corpus  by  an  Army  officer  after  his  trial  by 
court-martial  but  before  the  service  upon  him 
of  the  order  promulgating  the  sentence,  involv- 
ing dismissal,  held,  not  to  oust  the  court-martial 
of  jurisdiction  nor  to  affect  the  validity  of  the 
order  subsequently  served.  (U.  S.  v.  Barry, 
260  Fed.  Rep.,  291.) 

Where  the  offense  charged  is  trivial,  and  the 
punishment  is  likewise  trivial,  a  civil  court 
should  not  be  called  upon  to  examine  the  legal- 
ity of  the  sentence  of  a  court-martial;  and  when 
so  called  upon  is  not  required  by  substantial 
justice  to  apply  a  stricter  rule  than  that  which 
prevails  in  ordinary  criminal  cases.  (Weirman 
-i;.U.  S.,36Ct.  Cls.,236.) 

Undoubtedly  errors  are  committed  by  courts- 
martial  which  a  civil  tribunal  would  regard  as 
sufficient  ground  for  a  reversal  of  their  judg- 
ments if  it  were  sitting  as  an  app)ellate  court. 
But  there  is  alwavs  this  radical  difference  be- 


1048 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  53. 


tween  an  appellate  court  sitting  for  the  correc- 
tion of  errors  and  a  civil  court  into  which  the 
record  of  a  court-martial  is  collateral — in  the 
former  there  is  not  a  failure  of  justice;  the  ap- 
pellate court  may  reverse  a  judgment  or  pre- 
scribe another  or  award  a  new  trial ;  in  the  latter 
the  court  must  either  give  full  effect  to  the  sen- 
tence or  pronounce  it  wholly  void.  (Swaim  v. 
U.  S.,  28  Ct.  Cls.,  217;  affirmW,  165  U._S.,_553.) 

Where  a  court-martial  had  not  jurisdiction 
over  the  subject  matter,  or  ha^^.ng  jurisdiction 
has  failed  to  ohser\'e  the  rules  prescribed  by 
the  statute  for  its  exercise,  all  of  the  parties  to 
such'  illegal  trial  are  trespassers  upon  a  party 
aggrieved  by  it,  and  he  may  recover  damages 
from  them  on  a  proper  suit  in  a  ci\Tl  coiu"t  by 
the  verdict  of  a  jurv.  (D^^les  v.  Hoover,  20 
How.,  65,  81.) 

If  a  coiirt-martial  has  no  jurisdiction  over 
the  subject  matte*  of  the  charge  it  has  been 
convened  to  try,  or  shall  inflict  a  punishment 
forbidden  by  law,  though  its  sentence  shall  be 
approved  by  the  officers  haA-ing  a  rexdsory 
power  over  it,  ci\'il  courts  may,  on  an  action 
by  a  party  aggrieved  by  it,  inquire  into  the 
want  of  the  court's  juiisdiction  and  give  him 
redress.     (DjTies  v.  Hoover,  20  How.,  65,  82.) 

Persons  belonging  to  the  Army  and  Navy'  are 
not  subject  to  illegal  or  irresponsible  coiu-ts- 
martial  when  the  law  for  convening  them  and 
directing  their  proceedings  of  organization  and 
for  trial  have  been  disregarded.  In  such  cases 
everything  which  may  be  done  is  void,  not 
voidable  but  void;  and  ci\-il  courts  have  never 
failed  upon  a  proper  suit  to  give  a  party  re- 
dress who  has  been  injured  by  a  void  process  or 
void  judgment.  (D\Txe3  v.  Hoover,  20  How., 
65,  81.) 

It  is  only  where  a  coiirt  has  no  jiuisdiction 
over  the  subject  matter,  or  ha\'ing  such  jiuis- 
diction is  bound  to  adopt  certain  rules  in  its 
proceedings  from  which  it  de\dates,  whereby 
the  proceedings  are  rendered  coram  non 
judice,  that  an  action  will  lie  against  the  of- 
ficer who  executes  its  judgment.  (Dynes  v. 
Hoover,  20  How.,  65.) 

When  we  speak  of  proceedings  in  a  cause,  or 
for  the  organization  of  the  court  and  for  trials, 
we  do  not  mean  mere  irregularity  in  practice 
on  the  trial  or  any  mistaken  rulings  in  respect 
to  e\'idence  or  law,  but  of  a  disregard  of  the 
essentials  required  by  the  statute  under  which 
the  court  has  been  convened  to  try  and  to 
pimish  an  offender  for  an  imputed  violation 
of  the  law.  (Dynes  v.  Hoover,  20  How.,  65, 
81.) 

The  law  is  that  an  officer  executmg  the 
process  of  a  court  which  has  acted  without 
jurisdiction  over  the  subject  matter  become  a 
trespasser,  it  being  better  for  the  peace  of 
society  and  its  interests  of  every  kind  that  the 
responsibility  of  determining  whether  the  i 
court  has  or  has  not  jurisdiction  should  be  upon  I 
the  officer  than  that  a  void  writ  should  be 
executed.  But  a  United  States  marshal  is  not 
answerable  for  his  mere  ministerial  execution 
of  a  sentence  which  a  naval  court-rnartial  has 
passed  in  a  case  ^vithin  its  jurisdiction,  which 
the  Secretary  of  the  Na\y  has  approved,  and 
which  the  President  of  the  United  States,  as 
constitutional  commander  in  chief,  has  directed 
the  marshal  to  execute  by  receiving  the  pris- 


oner from  the  naval  officer  then  ha\-ing  him  in 
custody  to  transfer  him  to  the  penitentiary  in 
accordance  with  the  sentence  which  the  court 
had  passed  upon  him.  (Djoies  v.  Hoover,  20 
How.,  65,  80.) 

An  acquittal  of  the  commanding  officer  by  a 
court-martial,  when  tried  for  the  same  acts,  by 
order  of  the  Government,  is  not  admissible 
e\ddence  in  a  ci^'il  suit  by  an  enlisted  man 
against  the  commanding  officer  for  damages, 
as  the  parties  are  not  the  same,  although  it 
would  be  a  bar  to  subsequent  indictment  in 
courts  of  common  law  for  the  same  offense,  the 
parties  then  being  the  same.  (Wilkes  v. 
Dinsman,  7  How.,  89.  See  note  to  art.  24, 
A.  G.  N.) 

If  the  enlistment  of  a  person  in  the  Navy 
was  void,  then  there  is  no  right  to  discipline 
him  at  any  period  of  his  serAdce,  even  though  he 
was  undertaking  to  escape  it.  If  his  enlist- 
ment was  void,  which  means  that  he  was  never 
in  the  ser\dce,  then  any  act  by  any  person 
claiming  to  be  in  authority  over  him,  whereby 
any  of  the  natinal  rights  of  the  alleged  enlisted 
man  were  denied  him,  as,  for  instance,  if  he 
had  been  imprisoned  for  an  hoiu*  or  a  day  or  a 
week,  because  of  some  infraction  of  the  rules, 
will  support  a  ci\i]  action  for  damages  in  his 
favor  against  the  particular  individuals  who 
were  responsible  for  such  punishment.  No 
rule  of  law  can  be  cited  that  will  ever  protect  a 
public  officer  from  the  consequences  of  any  act 
which  he  may  imagine  he  is  performing  as  a 
public  officer,  but  which  involves  an  exercise  of 
authority  by  him  as  to  some  person  over  whom 
he  is  absolutely  without  authority.  (Ex  parte 
Rock,  171  Fed".  Rep.,  240,  242.) 

With  the  sentences  of  courts-martial  which 
have  been  convened  regularly,  and  have 
proceeded  legally,  and  by  which  pimishments 
are  directed,  not  forbidden  by  law,  or  which 
are  according  to  the  laws  and  customs  of  the 
sea,  ciNT-l  courts  have  nothing  to  do,  nor  are 
they  in  any  way  alterable  by  them.  If  it  were 
otherwise,  the  civil  courts  woidd  virtually 
administer  the  rules  and  articles  of  war,  irre- 
spective of  those  to  whom  the  duty  and  obliga- 
tion has  been  confided  by  the  laws  of  the 
United  States,  from  whose  decisions  no  ap- 
peal or  j  urisdiction  of  any  kind  has  been  given 
to  the  civil  magistrate  or  civil  courts.  (Djiies 
V.  Hoover,  20  How.,  65,  82.) 

When  the  sentence  of  a  naval  court-martial 
in  a  case  within  its  jurisdiction,  and  in  which 
it  has  proceeded  regularly,  is  confirmed  by  the 
proper  authority,  it  becomes  final  and  must  be 
executed  unless  the  President  pardons  the 
offender.  It  is  in  the  nature  of  an  appeal  to 
the  officer  ordering  the  court,  who  is  made  by 
law  the  arbiter  of  the  legality  and  propriety  of 
the  court's  sentence.  When  confirmed  it  is 
altogether  beyond  the  jurisdiction  or  inquiry 
of  any  civil  tribunal  whatever,  unless  it  shall 
be  in  a  case  in  which  the  court  had  not  juris- 
diction over  the  subject  matter  or  charge,  or 
one  in  which,  ha\ang  jurisdiction  over  the 
subject  matter,  it  has  failed  to  observe  the 
rules  perscribed  by  the  statute  for  its  exercise. 
(Dynes  v.  Hoover,  20  How.,  65,  81.) 

Congress  has  power  under  the  Constitution 
to  provide  for  the  trial  and  punishment  of 
miUtarv   and   naval   offenses   in   the   manner 


1049 


Sec.  1624,  Art.  63. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


then  and  now  practised  by  civilized  nations; 
and  the  power  to  do  so  is  p:iven  without  any 
connection  between  it  and  the  third  article  of 
the  Constitution  defining  the  judicial  power  of 
the  United  States.  The  two  powers  are  en- 
tirely independent  of  each  other.  (Dynes  v. 
Hoover,  20  How.,  65,  79.) 

Whate\er  was  done  by  the  court-martial 
that  it  could  do  under  any  circumstances,  we 
must  presume  was  properly  done.  If  error 
was  committed  in  the  rightful  exercise  of 
authority,  the  civil  courts  can  not  correct  it. 
(Ex  parte  Reed,  100  U.  S.,  13,  23.) 

The  court-martial  had  jurisdiction  over  the 
person  and  the  case.  It  is  the  organism  pro- 
vided by  law  and  clothed  wdth  the  duty  of 
administering  justice  in  this  class  of  cases. 
Having  had  such  jurisdiction,  its  proceedings 
can  not  be  collaterally  impeached  for  any  mere 
error  or  irregularity,  if  there  were  such  com- 
mitted within  the  sphere  of  its  authority.  Its 
judgment  when  approved  as  required  rest  on 
the  same  basis  and  are  surrounded  by  the  same 
considerations  which  give  conclusiveness  to 
the  judgments  of  other  legal  tribunals,  includ- 
ing as  well  the  lowest  as  the  highest,  iinder 
like  circumstances.  The  exercise  of  discre- 
tion within  authorized  limits  can  not  be  as- 
signed for  error  and  made  the  subject  of  review 
by  an  appellate  com-t.  (Ex  parte  Reed,  100 
U.  S.,  13,23.) 

Whether  or  not  the  Supreme  Court  has  juris- 
diction to  issue  a  writ  of  habeas  corpus  in  the 
case  of  an  enUsted  man  of  the  Army  serving 
sentence  of  general  court-martial,  not  decided; 
but  held  that,  if  a  writ  may  issue,  there  can  be 
no  discharge  under  it  if  the  court-martial  had 
jurisdiction  to  try  the  offender  for  the  offense 
with  which  he  was  charged,  and  the  sentence 
was  one  which  the  court  could,  iinder  the  law, 
pronounce.  (Ex  parte  Mason,  105  U.  S.,  696, 
697.) 

Where  a  court-martial  has  cognizance  of  the 
charges  made,  and  has  jurisdiction  _  of  the 
person  of  the  accused,  its  sentence  is  valid 
when  questioned  collaterally,  although  irregu- 
larities or  errors  are  alleged  to  have  occurred 
in  its  proceedings  in  that  the  prosecutor  was  a 
member  of  the  court  and  a  witness  on  the 
trial.  No  opinion  expressed  as  to  the  pro- 
priety of  such  proceedings.  (Keyes  v  U.  S., 
109  U.  S.,  336.) 

Courts-martial  form  no  part  of  the  judicial 
system  of  the  United  States,  and  their  pro- 
ceedings within  the  Limits  of  their  jurisdiction 
can  not  be  controlled  or  revised  by  the  civil 
courts.     (Kurtz  v.  Moffitt,  115  U.  S.,  487,  500.) 

The  Supreme  Coiut  has  repeatedly  recog- 
nized the  general  rule  that  the  acts  of  a  court- 
martial  within  the  scope  of  its  jurisdiction  ajid 
duty  can  not  be  controlled  or  reviewed  in  the 
civil  courts  by  writ  of  prohibition  or  otherwise . 
(Smith  V.  Whitney,  116  U.  S.,  167,  177.) 

Whether  the  supreme  court  of  the  District 
of  ('olumbia  has  power  to  issue  a  writ  of  prohi- 
bition to  a  court-martial,  quaere.  (Smith  v. 
Whitney,  116  U.  S.,  167.) 

A  writ  of  prohibition  does  not  lie  to  the  Secre- 
tary of  the  Navy  convening  a  naval  court- 
martial.  Being  an  executive  officer  and  not  a 
member  of  the  court-martial  sought  to  be  pro- 
hibited, it  is  quite  clear  that  his  acts  can  not 


be  the  subject  of  a  writ  of  prohibition.     (Smith 
V.  Whitney,  116  U.  S.,  167.) 

A  writ  of  prohibition  does  not  lie  to  a  court- 
martial  to  correct  mistakes  in  the  decision  of 
questions  of  law  or  of  fact  within  its  juristlic- 
tion.     (Smith  v  Wliitney,  116  U.  S.,  167.) 

A  court-martial  is  regarded  as  one  of  those 
inferior  courts  of  limited  jurisdiction  whose 
judgment  may  be  questioned  collaterally. 
(Runkle  i;  U.  S.,  122  U.  S.,  543,  556,  citing  Wi.se 
V.  Withers,  3  Cranch,  331,  and  ex  parte  Watkins, 
3  Pet.,  193,  207.) 

Civil  comts  may  inquire,  under  a  writ  of 
habeas  corpus,  into  the  jurisdiction  of  the 
court-martial  over  the  party  condemned,  but 
can  not  inquire  into  or  correct  errors  in  its 
proceedings.  (In  re  Grimley,  137  U.  S.,  147, 
150.) 

The  single  inquiry,  the  test,  is  jurisdiction. 
That  being  established,  the  habeas  corpus 
must  be  denied  and  the  petitioner  remanded; 
that  wanting,  it  must  be  sustained  and  the 
petitioner  discharged.  (In  re  Grimley,  137 
U.  S.,  147,  150.) 

The  decision  and  sentence  of  a  court-martial 
having  jurisdiction  of  the  person  accused  and 
of  the  offense  charged,  and  acting  within  the 
scope  of  its  lawful  powers,  can  not  be  reviewed 
or  set  aside  by  writ  of  habeas  corpus.  (John- 
son t).  Sayi'e,  158  U.  S.,  109.) 

When  a  court-martial  has  jurisdiction  of  the 
person  accused  and  the  offense  charged,  and  acts 
within  the  scope  of  its  lawful  powers,  its  pro- 
ceedings and  sentence  can  not  be  set  aside  by 
the  civil  courts.  If,  as  has  been  strenuously 
urged,  the  officer  was  harshly  dealt  with  in 
this  case,  and  a  sentence  of  luidue  severity  was 
finally  imposed,  the  remedy  must  be  found 
elsewhere  than  in  the  courts  of  law.  (Swaim 
i).  U.S.,  165  U.S.,  553,  566.) 

In  this  case  it  was  urged  that  the  charge  was 
not  established  by  the  facts,  and  that  the  sen- 
tence should  be  held  void  by  a  civil  court  in  an 
action  by  the  accused  for  the  pay  of  his  office. 
If  this  position  were  well  taken  it  would  throw 
upon  the  civil  courts  the  duty  of  considering  all 
the  evidence  adduced  before  courts-martial  and 
of  determining  whether  the  accused  was  guilty 
of  conduct  to  the  prej  udice  of  good  order  and  mil- 
itary discipline  m  violation  of  the  articles  of 
war.  But  this  is  the  very  matter  that  falls  with- 
in the  province  of  courts-martial  and  in  respect 
to  which  their  conclusions  can  not  be  controlled 
or  reviewed  by  the  civil  courts.  Of  questions 
not  depending  upon  the  construction  of  statutes, 
but  upon  unwritten  military  law  or  usage  with- 
in the  jurisdiction  of  courts-martial,  military 
or  naval  officers  from  their  training  and  experi- 
ence in  the  service  are  more  competent  judges 
than  the  courts  of  common  law.  (Swaim  d.  U.  S . , 
165  U.  S.,  553,  561,  citing  Smith  v.  Whitney,  116 
U.  S.,  178,  and  U.  S.  v.  Fletcher,  148  U.  S.,  84.) 
Courts-martial  are  lawful  tribunals,  with  au- 
thority to  finally  determine  any  case  over  which 
they  have  jurisdiction,  and  their  proceedings, 
when  confirmed  as  provided,  are  not  open  to 
re\iew  by  the  civil  tribunals,  except  for  the  pur- 
pose of  ascertaining  whether  the  military  court 
had  jurisdiction  of  the  person  and  subject  mat- 
ter and  whether,  though  having  such  jurisdic- 
tion, it  had  exceeded  its  powers  in  the  sentence 
pronounced.    (Carter  v.  Roberts,  177  U.  S.,  496.") 


1050 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  54. 


Where  jurisdiction  over  the  person  is  con- 
ceded, any  inquiry  into  the  innocence  or  guilt 
of  the  accused,  on  the  ground  that  the  evidence 
affirmatively  showed  that  no  crime  whatever  had 
been  committed,  is  not  permissible.  (Carter  v. 
McClaughry,  183  U.  S.,  3G5,  381.) 

The  question  whether  a  person  on  trial  be- 
fore a  ci\-il  court  upon  a  criminal  charge  is  there- 
by twice  put  in  jeopardy  for  the  same  offense 
has  been  held  to  be  a  question  for  determination 
by  the  court,  whose  decision  can  not  be  reviewed 
on  habeas  corpus.  It  is  difficult  to  see  why 
the  sentences  of  courts-martial,  courts  author- 
ized by  law  in  the  enforcement  of  a  system  of 
government  for  a  separate  community  recog- 
nized by  the  Constitution,  are  not  within  the 
rule.  Its  application  would  seem  to  be  essential 
to  the  maintenance  of  that  discipline  which  ren- 
ders the  Army  efficient  in  war  and  morally  pro- 
gressive in  peace,  and  which  is  secured  by  the 
military  code  and  the  decisions  of  military 
courts.  (Carter  v.  McClaughry,  183  U.  S.,  365, 
387-390.) 

"We  must  not  be  understood  by  anything  we 
have  said  as  intending  in  the  slightest  degree 
to  impair  the  salutary  rule  that  the  sentences 
of  courts-martial,  when  affirmed  by  the  military 
tribunal  of  last  resort,  can  not  be  revised  by  the 
civil  courts  save  only  when  void  because  of  an 
absolute  want  of  power,  and  not  rnerely  void- 
able because  of  the  defective  exercise  of  power 


possessed. "    (Carter  v.  McClaughry,  183  U.  S., 
365,  401.) 

The  proceedings  of  the  comt-martial  were 
conducted  with  a  substantial,  if  not  a  literal, 
conformity  to  the  law,  and  we  must  presume, 
at  least,  that  there  was  sufficient  evidence  to 
support  the  sentence.  (Bishop  i^.U.S.,  197  U.S., 
334,342.) 

Civil  courts  are  not  courts  of  error  to  review 
sentences  of  legally  organized  courts-martial 
ha\ing  jurisdiction  of  the  person  of  the  accused 
and  of  the  offense.  (Mullan  v.  U.  S.,  212  U.  S., 
516.) 

WTiat  is  due  process  of  law  depends  upon  the 
cii-cumstances.  To  those  in  the  military  or  na- 
val service  of  the  United  States,  military  law 
is  due  process;  and  the  decision  of  a  military 
tribunal  acting  within  the  scope  of  its  lawful 
powers  can  not  be  re\'iewed  or  set  aside  by  the 
courts.  (Reaves  _r.  Ainsworth,  219  U.  S.,_296, 
relating  to  examining  boards  for  promotion.) 

The  judgment  of  a  court-martial  is  open  to 
collateral  attack  for  want  of  jmisdiction,  and  to 
sustain  such  a  judgment  it  must  appear  that 
the  facts  essential  to  the  jurisdiction  existed 
when  the  jurisdiction  was  exercised.  (Givens 
V.  Zerbst,  255  U.  S.,  11,  affirming  ex  parte  Giv- 
ins,  262  Fed.  Rep.,  702.) 

For  other  cases,  see  note  to  Constitution, 
Article  I,  section  8,  clause  14;  and  note  to  sec- 
tion 753,  Revised  Statutes. 


Art.  54.  [Remission  and  mitigation  of  sentence.]  Every  officer  who  is 
authorized  to  convene  a  general  court-martial  shall  have  power,  on  revision  of 
its  proceedings,  to  remit  or  mitigate,  but  not  to  commute,  the  sentence  of  any 
such  court  which  he  is  authorized  to  approve  and  confirm. —  (17  July,  1862, 
c.  204,  s.  1,  art.  20,  v.  12,  p.  605.) 


"The  Secretary  of  the  Navy  may  set  aside  the 

proceedings  or  remit  or  mitigate,  in  whole 

or  in  part,  the  sentence  imposed  by  any 

naval  com-t-martial  convened  by  his  order 

or  by  that  of  any  officer  of  the  Navy  or 

Marine  Corps. ' '     (Act  Feb.  16, 1909,  sec.  9, 

35  Stat.,  621.) 

OflScers  authorized  to  convene  general 

covirts-inartial. — See  article  38,  A.  G.  N.,  and 

note  thereto;  see  also  note  to  article  53,  A.  G.  N., 

under  "Officer  ordering  the  court;  President 

and  Secretary  of  the  Na\y." 

Power  of  Secretary  of  the  Navy. — See 
note  to  article  53,  A.  G.  N.,  under  "Power  of 
Secretary  of  the  Navy  over  sentences  of  courts- 
martial  " ;  and  see  note  to  article  32,  A.  G.  N. 

ImpUed  remission  of  sentence. — ^The  hon- 
orable discharge  of  an  officer  after  he  has  been 
sentenced  by  court-martial  to  forfeit  a  month's 
pay  and  the  sentence  has  been  approved  does 
not  remit  the  sentence  or  entitle  him  to  recover 
the  pay  forfeited,  whether  or  not  the  sentence 
had  been  promulgated  prior  to  his  discharge. 
(Lyon  V.  U.  S.,  l8  Ct.  Cls.,  30.) 

It  would  seem  that  a  sentence  of  suspension 
fi'om  rank  and  pay  for  a  definite  period,  or  loss 
of  numbers,  would  be  remitted  by  the  perma- 
nent promotion  of  the  accused  to  a  higher  grade 
while  still  undergoing  such  sentence,  as  the 
sentence  operates  only  upon  his  rank  and  pay 
in  the  gi-ade  held  by  him  when  it  was  ad- 
judged.    But  the  temporary'  promotion  of  an 


officer  to  a  higher  grade  while  under  sentence 
would  not  have  such  effect.  (31  Op.  Atty. 
Gen.,  419,  424-426,  explaining  and  modifying 
4  Op.  Atty.  Gen.,  8.) 

Where  an  officer  lost  numbers  pursuant  to  the 
sentence  of  a  court-martial,  and  subsequently 
was  advanced  by  the  President,  with  the  aa- 
\ice  and  consent  of  the  Senate,  to  the  next 
higher  grade  and  to  his  original  relative  position 
on  the  list,  because  of  "eminent  and  conspic- 
uous conduct  in  battle,"  held  that  this  restora- 
tion to  his  former  relative  position  had  the  effect 
of  putting  an  end  to  the  punishment,  and  a 
pardon  subsequently  issued  by  the  President 
did  not  operate  to  advance  the  officer  to  a  higher 
relative  position  than  that  which  he  had  occu- 
pied prior  to  the  sentence  of  the  court.  (24  Op. 
Atty.  Gen.,  606.) 

See  cases  noted  under  Constitution,  Article 
II,  section  2,  clause  1,  imder  "III.  Power  to 
pardon  offenses  against  the  United  States," 
subheading,  ' '  Constructive  pardon . ' ' 

Reconsideration  of  action  mitigating 
sentence. — WTiere  the  President  on  March  3, 
1869,  roA-iewed  the  proceedings  of  a  court 
martial  on  appeal  by  the  accused,  and  there- 
upon issued  an  order  to  the  Secretary  of  War  as 
follows:  "Let  the  disabilities  be  removed 
and  an  honorable  discharge  granted  " ;  and  on 
March  13,  1869,  the  foregoing  order  was  re- 
scinded by  the  President;  held,  that  the  said 
order  being  executory  and  in  ita  nature  revoca- 


54641°— 22- 


-67 


1051 


Sec.  1624,  Art.  54. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


ble,  and  having  remained  unexecuted  at  the 
time  of  its  rescission,  was  completely  annulled 
thereby.     (17  Op.  Atty.  Gen.,  436.) 

Where  a  sentence  as  mitigated  waa  put  in 
execution  by  a  former  administration,  by  which 
all  questions  in  the  premises  must  be  presumed 
to  have  then  been  fully  considered,  ad\'ised 
that  tliis  action  be  now  treated  as  a  final  deter- 
mination of  the  matter  as  regards  the  status  of 
the  accused  officer.     (15  Op.  Atty.  Gen.,  463.) 

Where  the  mitigation  of  a  sentence  was  ob- 
tained by  fraud  of  the  accused,  who  was  dis- 
charged from  the  ser^dce  pursuant  to  the  miti- 
gated sentence,  such  discharge  may  be  re- 
voked and  the  accused  required  to  resume  his 
former  status  as  a  court-martial  prisoner.  (28 
Op.  Atty.  Gen.,  170.) 

Sentence  which  officer  not  authorized 
to  coniinn. — Tliis  article  obviously  extends 
only  to  such  sentences  as  the  convening  officer  is 
authorized  to  approve  and  confirm  and  has  no 
application  where  the  punishment  of  dismissal 
is  imposed.  (Bishop  i).  U.  S.,  197  U.  S.,  334, 
341.) 

A  lieutenant  of  marines  on  service  with  the 
Army  in  Mexico  was  sentenced  to  be  cashiered 
by  a  court-martial  held  there;  the  general  in 
chief,  after  approving  the  sentence,  directed 
that  it  be  commuted  to  12  months'  suspension 
from  rank,  command,  and  emoluments;  the 
proceedings  of  the  court-martial  and  the  order 
of  the  general  in  chief  thereunder  had  not  been 
submitted  to  or  acted  upon  by  the  President  of 
the  United  States.  The  said  officer  continued 
in  the  ser\'ice,  in  effect  under  suspension,  until 
he,  with  other  officers,  was  displaced  by  the 
President,  not  upon  the  above-mentioned  sen- 
tence of  the  court,  but  in  virtue  of  the  act  of 
Congress  restoring  the  peace  establishment  of 
the  Marine  Corps.  Held,  that  under  the  express 
pro\dsions  of  the  articles  of  war  the  commanding 
general  in  the  field  did  not  possess  power  to 
commute  the  sentence  of  cashiering,  ijut  only 
the  power  to  execute  the  sentence  or  to  sus- 
pend it  pending  determination  by  the  Presi- 
dent, to  whom  the  record  was  in  case  of  such 
suspension  I'equired  to  be  immediately  trans- 
mitted; and  that,  upon  the  facts  stated,  neither 
the  sentence  of  cashiering  nor  the  mitigated 
sentence  ever  took  effect  in  this  case.  (6  Op. 
Atty.  Gen.,  123.) 

Remission  of  distinct  part  of  sentence. — 
WTiere  forfeiture  or  loss  of  pay  is  made  a  part 
of  the  sentence  of  a  court-martial,  in  addition 
to  confinement  or  suspension  from  duty,  the 
former  may  be  remitted  by  the  proper  authority, 
in  whole  or  in  part,  ^vithout  also  remitting  the 
latter.     (15  Op.  Atty.  Gen.,  175.) 

Form  of  action  mitigating  sentence. — 
An  act  of  the  President  remitting  part  of  a  court- 
martial  sentence  may  be  authenticated  in  the 
same  way  in  which  his  act  confirming  such 
sentence  can  be  authenticated.  \Vhere  partial 
remission  is  made  at  the  time  of  confirmation, 
the  two  acts  are  in  practice  signified  and  at- 
tested together,  in  the  same  way.  (15  Op. 
Atty.  Gen.,  290.  See  note  to  art.  53,  A.  G.  N., 
as  to  form  of  President's  action  confirming 
sentence.) 

Remission  of  continuing  punishment; 
suspension,  etc. — ^Vhere  an  officer  is  sentenced 
to  loss  of  numbers  in  his  grade,  the  punishment 


imposed  is  a  continuing  one;  since  it  is  only  by 
the  continual  operation  of  the  sentence  itself 
that  the  officer  is  thenceforth  excluded  from 
the  place  in  his  grade  to  which,  under  the  law 
of  the  service,  he  would  otherwise  be  entitled 
by  date  of  his  commission,  and  made  to  occupy 
another  place  therein.  So  long  as  the  officer  is 
thus  excluded  by  operation  of  the  sentence, 
in  other  words,  whilst  he  is  still  undergoing  the 
pimishment  thereby  imposed ,  the  sentence  may 
be  remitted  and  remission  of  it  would  necessarily 
carry  with  it  the  restoration  of  the  officer  to  his 
preexisting  right  to  occupy  the  place  in  hia 
grade  corresponding  -with,  the  date  of  his  com- 
mission, he  losing  such  opportunities  for  pro- 
motion as  may  in  the  meantime  have  occurred. 
(17  Op.  Atty.  Gen.  656.) 

An  officer  of  the  Navy  was  sentenced  "to  be 
suspended  for  two  years  from  rank  and  duty, 
on  furlough  pay,  and  to  retain  his  present 
number  on  the  list  of  lieutenant  commanders 
during  that  time";  the  sentence  was  approved 
by  the  Secretary  of  the  Navy,  May  3,  1889. 
Between  May  3  and  December  14,  1889,  the 
officer  lost  two  numbers  in  his  grade  by  promo- 
tion of  two  officers  to  the  grade  of  commander 
and  the  consequent  advancement  above  hinri 
in  the  grade  of  heutenant  commander  of  two 
officers  who  had  beenjimior  to  him  in  that  grade. 
On  December  14,  1889,  the  Secretary  of  the 
Navy  issued  the  following  order  to  the  officer 
imder  suspension:  "The  unexecuted  portion 
of  the  sentence  of  the  general  coml-martial 
before  which  you  were  tried  at  the  navy  yard, 
Washington,  D.  C,  April  15,  1889,  is  hereby 
remitted."  Held,  that  this  remission  did  not 
have  the  effect  of  advancing  the  officer  in  ques- 
tion ahead  of  the  two  officers  who  had  been 
passed  over  him  in  the  grade  of  lieutenant 
commander.  While  an  absolute  pardon  might 
reinstate  the  officer  sentenced,  an  order  of  the 
Secretary  of  the  Navy  remitting  the  unexecuted 
portion  of  the  sentence  can  not  produce  that 
result.  That  portion  of  the  sentence  which 
operated  to  place  the  two  officers  in  question 
above  the  accused  had  been  executed  before 
the  order  for  remission  and  was  therefore  not 
affected  by  the  terms  of  that  order.  (20  Op. 
Atty.  Gen.,  243.) 

Degradation  from  or  diminution  of  relative 
rank  and  position  is  a  continuing  punishment 
and  thus  subject  to  re\ision  by  the  President. 
(24  Op.  Atty.  Gen.,  606.) 

A  lieutenant  commander  in  the  Na\'y  was 
sentenced  by  court-martial  to  suspension  for 
one  year  and  to  retain  his  then  present  number 
on  the  list  of  lieutenant  commanders  for  that 
time.  The  sentence  having  been  executed, 
he  applied  several  years  later  to  be  restored  to 
the  number  on  said  hst  which  he  thereby  lost: 
Held,  that  the  restoration  could  not  be  effected 
by  the  President  otherwise  than  by  pardon. 
The  punishment  imposed  (lo*ss  of  numbers) 
being  a  continuing  one,  is  still  subject  to  the 
pardoning  power  which,  when  exercised,  would 
have  the  effect  of  restoring  the  officer  to  his 
former  rank  according  to  the  date  of  his  com- 
mission; the  officer  losing  such  opportunities 
for  promotion  as  may  in  the  meantime  have 
occurred.     (17  Op.  Atty.  Gen.,  31.) 


1052 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  54. 


A  pardon  by  the  President  will  restore  an 
officer  whose  rank  has  been  reduced  by  sen- 
tence of  a  court-martial  to  his  former  relative 
rank,  according  to  the  date  of  his  commission, 
the  officer  losing  such  opportunities  for  promo- 
tion as  may  in  the  meantime  have  occurred. 
Loss  of  numbers  is  a  continuing  penalty,  which 
operates  from  day  to  day  so  long  as  the  officer 
affected  is  excluded  from  enjojing  his  previous 
status.     (12  Op.  Atty.  Gen.,  547.) 

Where  an  officer  of  the  Army  was  sentenced 
by  com"t-martial  "to  be  cashiered  and  to  be 
forever  disqualified  from  holding  any  office  of 
trust  or  profit  under  the  Government  of  the 
United  States,"  which  sentence  was  duly 
approved  and  the  officer  dismissed,  held,  that 
the  dismissal  is  an  accomplished  fact  and  so  far 
the  sentence  is  completely  executed;  but  the 
disability  is  a  continuing  punishment,  and  in 
regard  to  that  the  sentance  is  being  executed, 
and  the  latter  portion  of  the  sentence  may  be 
remitted  by  the  pardoning  power,  but  the 
former  can  not  in  any  way  be  affected  thereby. 
(17  Op.  Atty.  Gen.,  297.)  ^ 

The  promotion  of  an  officer  coinpletely  exe- 
cutes a  sentence  of  loss  of  numbers  in  his  grade, 
and  a  pardon  issued  thereafter  can  not  restore 
him  to  his  original  position.  (File  26261-246 :1, 
Mar.  18,  1914;  26262-1794:1,  Dec.  21,  1916;  but 
see  contra  file  1208,  Mar.  31, 1905.  And  see  note 
above  under  "  Implied  remission  of  sentence.") 

For  other  cases  see  note  to  Constitution,  Arti- 
cle II,  section  2,  clause  1,  under  "III.  Power 
to  pardon  offenses  against  the  United  States"; 
and  note  to  section  1441,  Revised  Statutes. 

Action  to  be  taken  on  revision  of  court- 
martial  proceedings.— Officers  of  the  naval 
service  convening  general  courts-martial  are  not 
authorized  to  remit  or  mitigate  the  sentences 
imposed  by  such  courts  after  having  once  acted 
thereupon.  (Nav.  Dig.,  1916,  pp.  115,  562, 
citing  C.  M.  O.  17,  1910,  pp.  5-6;  C.  M.  O.  1, 
1912,  pp.  3-4;  file  26262-1246:1,  Dec.  29,  1911.) 

An  officer  of  the  Army  authorized  to  order  a 
general  court-martial  has  no  power  to  pardon  or 
mitigate  the  punishment  adjudged  by  it  after 
confirmation  by  him  of  the  sentence.  (19  Op. 
Atty.  Gen.,  106,  reversing  17  Op.  Atty.  Gen., 
656,  upon  this  point.) 

The  Constitution  forbids  anyone  but  the 
President  to  pardon  those  who  commit  such 
offenses.  Accordingly,  the  articles  of  war 
should  be  construed  as  referring  to  the  punish- 
ment adjudged  by  the  court  and  as  empower- 
ing the  convening  authority  to  pardon  or  miti- 
gate that  judgment,  and  not  as  empowering 
him  to  pardon  or  mitigate  the  punishment  of  an 
offense  finally  adjudged  and  confirmed  by  him- 
self. Before  he  shall  confirm  the  action  of  the 
court  the  article  permits  him  to  mitigate  the 
punishment  or  remit  it;  but  after  the  final 
judgment  of  confirmation,  which  is  the  judg- 
ment of  the  law,  shall  have  conclusively  estab- 
lished the  offense  and  the  guilt  of  the  offender, 
the  law  gives  him  power  neither  to  mitigate  nor 
remit.  It  is  only  the  punishment,  and  not  the 
offense,  that  he  may  mitigate  or  remit.  (19  Op. 
Atty.  Gen.,  106.) 

See  note  to  Constitution,  Article  I,  section  2, 
clause  1,  under  ''III.  Power  to  pardon  offenses 
against  the  United  States,"  subheading  "  Power 
of  other  officers." 


Discretionary  action  of  reviewing  au- 
thority.— This  article  shows  that  Congress  in- 
tended that  the  officer  who  is  authorized  to 
approve  and  confirm  the  sentence  of  a  court- 
martial,  in  revising  its  proceedings,  should  act 
judicially;  that  is,  that  he  should  exercise  the 
discretion  confided  to  him  within  the  limits 
of  the  law.     (11  Op.  Atty.  Gen.,  19,  20.) 

Mitigation  of  dismissal. — As  the  sentence 
of  a  naval  court-martial  dismissing  an  officer 
from  the  service  can  not  be  executed  except 
with  the  approbation  of  the  President,  and  as  he 
possesses  the  power  to  revise,  to  pardon,  and  to 
mitigate  a  sentence,  he  may  substitute  a  milder 
punishment  for  that  decreed  by  the  court.  (4 
Op.  Atty  .Gen.,  432.) 

In  mitigating  a  sentence  of  dismissal  the 
President  may  commute  it  by  substituting  a 
suspension  for  a  term  of  years  without  pay  for  an 
absolute  dismissal  from  the  service,  as  suspen- 
sion is  but  an  inferior  degi'ee  of  the  same  pun- 
ishment.    (4  Op.  Atty.  Gen.,  432.) 

A  dismissal  is  a  perpetual  suspension  without 
pay,  and  to  limit  suspension  without  pay  is  to 
substitute  an  inferior  degree  of  the  same  pun- 
ishment; the  minor  is  contained  in  the  major. 
(4  Op.  Atty.  Gen.,  432.) 

The  President  has  ample  power  to  mitigate 
the  sentences  of  naval  courts-martial  by  com- 
muting sentences  of  dismissal  from  the  ser\'ice 
to  suspension  without  pay  or  emoliunents  for  a 
limited  time.  Hence  an  assistant  surgeon  in 
the  Navy,  who  was  sentenced  to  be  dismissed  by 
a  naval  court-martial,  but  whose  sentence  was 
commuted  to  suspension  for  12  months  ■without 
pay,  is  not  entitled  to  pay  during  the  period  of 
such  suspension.     (5  Op.  Atty.  Gen.,  43.) 

As  dismissal  deprives  the  officer  of  his  pay 
forever,  the  suspension  of  his  office  and  his  pay 
for  one  year  only  is  an  inferior  and  milder  de- 
gree of  the  punishment  decreed  by  the  court. 
Opinions  of  former  Attorneys  General  are  not  at 
variance  with  this  advice.  (5  Op.  Atty.  Gen., 
43.) 

Reduction  by  the  President  of  the  United 
States  of  the  dismissal  of  an  officer  of  the  Na\-y 
from  the  service  to  loss  of  numbers  and  sus- 
pension from  rank  and  duty  on  one-half  sea  pay 
for  five  years  is  a  mitigation  of  the  sentence 
within  the  meaning  of  article  54,  A.G.N.  (Mul- 
lan^j.  U.  S.,  212U.  S.,  516.) 

Commutation  of  sentence.  —  Quaere, 
whether  the  power  of  mitigating  a  punishment 
includes  the  power  of  changing  its  species; 
whether  it  means  anything  more  than  lessening 
the  quantity,  preserving,  nevertheless,  the 
species  of  the  punishment.  (1  Op.  Atty.  Gen., 
327.) 

Had  the  phraseology  of  the  law  been,  "to 
remit  in  part,  or  in  whole,  the  punishment 
decreed  by  the  sentence  of  a  court-martial," 
it  would  have  restricted  the  President  to  the 
simple  matter  of  mitigation,  that  of  lessening 
the  quantity;  but  a  power  of  mitigation,  in  gen- 
eral terms,  leaves  the  manner  of  peiiorming 
this  act  of  mercy  to  himself;  and  if  it  can  be 
performed  in  no  other  way  than  by  changing 
its  species,  the  President  has  the  power  of  adopt- 
ing this  form  of  mitigation.  11  Op.  Attv.  Gen., 
327.) 

The  authority  of  the  President  to  mitigate 
the  sentences  of  naval  courts-martial,  in  cases 


1053 


Sec.  1624,  Art.  54. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


where  ho  dooms  tho  punishment  unnecessarily 
severe,  does  not  extend  to  the  substitution  of 
another  punishment  for  that  decreed  by  the 
court;  he  can  not  suspend  the  pay  of  an  officer 
under  sentence  of  a  court-martial  whose  pay 
was  not  suspended  by  the  coiirt.  (4  Op.  Atty. 
Gen.,  444.) 

Even  thoup;h  the  executive  may  dismiss  from 
the  service  without  trial,  or  may  suspend  from 
duty  by  an-est,  he  has  no  power,  while  an  officer 
retains  his  commission  and  is  not  sentenced  by 
a  court-martial  to  that  effect,  to  take  from  him 
the  pay  which  the  law  gives  him.  (4  Op.  Atty. 
Gen.,  444.) 

An  officer  of  the  Navy  was  sentenced  by 
court-martial  to  be  suspended  from  all  rank  and 
command  in  the  Navy  for  and  during  the  period 
of  five  years.  The  sentence  did  not  involve 
loss  of  pay,  which  the  court  was  authorized  to 
adjudge  by  the  Articles  for  the  Government  of 
the  Navy.  Nor  did  it  require  confirmation  by 
the  President.  The  President  ordered  that  the 
sentence  "be  commuted  to  a  suspension  of  six 
months  from  this  date,  without  pay. ' '  It  does 
not  appear  that  this  commutation  of  the  sen- 
tence was  made  at  the  officer 's  request,  or  that 
the  condition  was  accepted  by  the  officer,  who 
afterwards  claimed  pay  for  the  period  of  this 
suspension.  A  pardon  is  a  deed,  to  the  vaUdity 
of  which  delivery  is  essential,  and  delivery  is 
not  complete  without  acceptance.  It  is  clear, 
then,  that  the  President  in  this  case  did  not 
exercise  the  power  of  pardon.  Nor  was  his 
action  a  mitigation  of  the  sentence  under  the 
Articles  for  the  Government  of  the  Navy,  and 
the  officer  is  entitled  to  pay  for  the  period  of  his 
suspension.     (4  Op.  Atty.  Gen.,  444.) 

It  may  be  conceded  that  there  is  a  technical 
difference  between  the  commutation  of  a  sen- 
tence and  the  mitigation  thereof.  The  first  is  a 
change  of  a  punishment  to  which  a  person  has 
been  condemned  into  one  less  severe,  substi- 
tuting a  less  for  a  greater  punishment  by  author- 
ity of  law.  To  mitigate  a  sentence  is  to  reduce 
or  lessen  the  amount  of  the  penalty  or  punish- 
ment. When  the  President  otherwise  con- 
firmed the  sentence  from  absolute  discharge 
from  the  Navy  to  reduction  in  rank  and  duty 
for  the  period  of  five  years  on  one-half  sea  pay, 
he  did  what  in  terms  he  undertook  to  do,  and 
by  the  lessening  of  the  severe  penalty  of  dis- 
missal from  the  Navy,  reduced  and  diminished, 
and  therefore  mitigated,  the  sentence  which  he 
was  authorized  to  approve  and  confirm  against 
the  appellant,  or  mitigate  in  his  favor.  (Mullan 
-y.  U.S.,  212  U.S.,  516.) 

See  note  above,  under  "Mitigation  of  dis- 
missal"; and  see  below,  under  "Mitigation  of 
death  sentence." 

Power  of  President  as  reviewing  au- 
thority.— ^The  President  may  mitigate  a 
sentence  of  a  naval  court-martial,  under  the 
Articles  for  the  Government  of  the  Navy,  with- 
out invoking  his  power  of  pardon.  (1  Op.  Atty, 
Gen.,  327.) 

The  power  of  the  President  over  a  sentence  is  a 
power  over  the  whole  of  it ;  and  he  may  approve, 
reject,  or  mitigate  the  same  at  pleasure.  The 
language  of  the  article  of  war  requires  that, 
in  cases  extending  to  the  dismissal  of  a  com- 
missioned officer,  in  time  of  peace,  the  whole 
proceedings  be  laid  before  the  President  "for 


his  confirmation  or  disapproval,  and  orders  on 
the  case."  The  terms  indicate  an  unlimited 
discretion ;  and  when  it  is  considered  that  he  is 
by  the  Constitution  the  depositary  of  the  par- 
doning power,  it  can  not  be  doubted  that  he  has 
authority  to  mitigate  as  well  as  to  confirm  or 
reject  the  sentence  of  a  court-martial  in  the  ex- 
ercise of  the  8uper\isory  power  committed  to 
him  by  the  articles  of  war.  (2  Op.  Atty.  Gen., 
286.) 

The  power  of  the  President  to  pardon,  con- 
ferred by  the  Constitution,  is  plenary;  and  so 
far  as  he  is  concerned,  its  repetition  in  the  Arti- 
cles for  the  Government  of  the  Navy  was  super- 
ogatory.     (4  Op.  Atty.  Gen.,  432.) 

WTiere  an  officer  was  sentenced  to  dismissal 
from  the  Army,  and  to  fine  and  imprisonment, 
the  President  might  have  exercised  his  con- 
stitutional power  to  pardon,  or  as  the  reviewing 
authority  he  might  have  pardoned  or  mitigated 
the  punishment  adjudged,  except  that  of  dis- 
missal, although  he  had  no  power  to  add  to  the 
punishment.  (Carter  v.  McClaughry,  183  U.  S., 
365,  387.) 

Quaere,  whether  article  54,  A.  G.  N.,  applies 
to  the  action  of  the  president ;  if  it  be  conceded 
that  it  is  applicable  to  the  President,  his  action 
in  this  case  did  in  fact  mitigate  the  previous 
sentence  of  the  court-martial  as  approved  by 
the  Secretaiy  of  the  Navy.  (Mullan  v.  U.  S., 
212  U.  S.,  516.) 

Mitigation  of  death  sentence. — A  sen- 
tence of  death  can  not  be  mitigated  in  any  other 
way  than  by  changing  the  punishment.  (1  Op. 
Atty.  Gen.,  327.) 

The  President  may  so  far  mitigate  a  sentence 
of  death  pronounced  by  a  naval  court-martial 
as  to  substitute  a  milder  punishment  in  its 
stead.  This  he  may  do  under  the  Articles  for 
the  Government  of  the  Navy,  and  without  in- 
voking his  power  of  pardon;  and  since  the  sen- 
tence of  death  can  be  mitigated  only  by  chang- 
ing it,  he  has  the  power  to  substitute  the  milder 
punishment  which  he  proposes  to  do.  fl  Op. 
Atty.  Gen.,  327.) 

The  power  of  pardoning  the  offense  does  not 
include  the  power  of  changing  the  punishment; 
but  the  power  to  mitigate  the  punishment  de- 
creed by  a  court-martial  can  not  be  fairly  under- 
stood in  any  other  sense  than  as  meamng  the 
power  to  substitute  a  milder  punishment  in  the 
place  of  that  decreed  by  the  court-martial,  in 
which  sense  it  would  justify  the  mitigation  of  a 
sentence  of  death  to  a  sentence  of  "service  and 
restraint  for  the  space  of  one  year;  after  which, 
to  cause  him  to  be  drummed  from  the  Marine 
Corps  as  a  disgrace  to  it."  (1  Op.  Atty.  Gen., 
327.) 

The  exercise  of  the  power  of  mitigation 
necessarily  implies  that  there  is  substitution  for 
a  higher  of  an  inferior  punishment.  A  sentence 
of  death  for  murder  can  be  mitigated  by  substi- 
tuting any  punishment  which  the  law  would 
authorize  the  court  to  inffict  for  manslaughter. 
This  is  an  inferior  degree  of  the  offense.  The 
punishment  substituted  is  not,  in  the  nature  of 
things,  that  which  the  court  has  decreed;  it  is 
one  which  the  President  substitutes.  (4  Op. 
Atty.  Gen.,  432,  434.1 

When  an  officer  is  brought  to  trial  and  is  seii- 
tenced  1o  be  punished,  the  executive  may  miti- 
gate the  severity  of  that  punishment;  but  the 


1054 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  57. 


mitigation  must  inflict  a  part  of  the  punish-  must  be  inflicted  or  no  part  of  it  can  be.     Such 

ment  awarded  by  the  judgment  of  the  court,  is  the  case  with  a  sentence  of  death.     (4  Op. 

with  the  exception  of  those  cases  in  which  there  Atty.  Gen.,  444.) 
is  no  degree,  as  where  the  whole  punishment 

Art.  55.  [Courts  of  inquiry,  by  whom  ordered.]  Courts  of  inquiry  may  be 
ordered  by  the  President,  the  Secretary  of  the  Navy,  or  the  commander  of  a 
fleet  or  squadron.— (17  July,  1862,  c.  204,  s.  1,  art.  23,  v.  12,  p.  605.) 


law  to   convene   general   courts-martial." 

(Act  Aug.  29,  1916,  39  Stat.,  586.) 
See  article  38,  A.  G.  N.,  and  note  thereto,  as  to 

officers    empowered   to    convene    general 

courts-martial. 
See  section  183,  Revised  Statutes,  as  amended, 

and    note    thereto,    respecting    boards    of 

investigation. 


"Boards  of  inquiry"  are  to  be  ordered  by  the 
Secretary  of  the  Navy  in  certain  cases,  be- 
fore the  dismissal  of  midshipmen  from  the 
Naval  Academy  without  trial  by  court- 
martial.  (Act  Apr.  9,  1906,  34  Stat.,  104. 
See  note  to  sec.  1519,  R.  S.) 

"Courts  of  inquiry  may  be  convened  by  any 
officer  of  the  naval  ser^ice  authorized  by 

Art.  56.  [Courts  of  inquiry,  constitution  of.]  A  court  of  mquiry  shall  con- 
sist of  not  more  than  three  commissioned  officers  as  members,  and  of  a  judge- 
advocate,  or  person  officiating  as  such. —  (17  July,  1862,  c.  204,  s,  1,  art.  23^ 
V.  12,  p.  605.) 

See  article  39,  A.  G.  N.,  and  note  thereto,  as  to  constitution  of  general  courts-martial. 

Art.  57.  [Courts  of  inquiry,  powers  of.]  Courts  of  inquiry  shall  have  power 
to  summon  witnesses,  administer  oaths,  and  punish  contempts,  in  tlie  same 
manner  as  courts-martial;  but  they  shall  only  state  facts,  and  sliall  not  give 
their  opinion,  unless  expressly  required  so  to  do  in  the  order  for  convenmg. — 
(17  July,  1862,  c.  204,  s.  1,  art.  23,  v.  12,  p.  605.) 


Amendment  to  this  article  was  made  by  act 

of  February  16,  1909,  sections  11  and  12 

(35  Stat.,  621,  622j,  relating  to  attendance 

of  civilian  witnesses.     See  note  to  article 

42,  A.  G.N. 

Oaths,  when  administered  by  officers  of  the 

Navy:  See  section  183,  Revised  Statutes, 

and  laws  noted  thereunder. 

The  use  of  depositions  before  naval  courts  in 

certain  cases  and  under  certain  restrictions 

was  authorized  by  act  of  February  16,  1909, 

section  16  (35  Stat.,  622). 

Absent  witness. — The  court,  on  motion  to 

postpone  because  of  absent  witnesses,  may,  as 

is  usual  in  all  courts,  require  the  party  making 

the  motion  to  state  what  he  expects  or  desires 

to  prove,  so  that  its  materiality  may  be  seen, 

and  so  also  that  the  other  party,  if  he  see  fit, 

may  agree   that  the  absent   witness  will   so 

testify,  and  thus  dispense  with  his  attendance. 

In  all  such  questions  the  judge  advocate  acts 

for  the  Government.     (8  Op.  Atty.  Gen.,  335, 

363.) 

False  swearing  before  court  of  in- 
quiry.— See  note  to  article  8,  A.  G.  N.,  under 
"Scandalous  conduct  tending  to  the  destruc- 
tion of  good  morals." 

Depositions  in  evidence. — ^See  note  to 
article  42,  A.  G.  N. 

Objects  of  courts  of  inquiry. — The  object 
of  a  court  of  inquiry  is  not  merely  to  exculpate 
some  officer,  the  individual  subject  of  the  in- 
quiry, but  to  ascertain  facts  for  the  information 
of  superior  authority.  The  subject  of  inquiry 
may  be  so  broad  and  comprehensive  in  scope, 
and.  so  general  in  its  nature,  that  its  relation  to 
individuals   becomes   a   matter   of   secondary 


consideration.  It  may  involve  matters  of 
public  welfare  and  of  the  universal  good  of  the 
service,  of  which  personal  interests  are  but  a 
single  and  not  the  largest  element.  (8  Op. 
Atty.  Gen.,  335,  349.) 

Axialog^y  to  grand  jury.— With  respect  to 
inquiry  into  the  conduct  of  an  officer,  with  a 
view  to  determining  whether  to  prefer  charges 
or  not,  there  is  much  resemblance  between  the 
relation  of  a  grand  jury  to  a  traverse  jury, 
and  that  of  a  court  of  inquiry  to  a  court-martial. 
(8  Op.  Atty.  Gen.,  335,  347.) 

Not  a  judicial  tribunal.— A  naval  court  of 
inquiry  is  not  a  judicial  tribunal ;  it  is  instituted 
solely  for  the  purpose  of  investigation,  as  an 
assistance  to  the  President,  the  head  of  the 
department,  or  the  commanding  officer,  in 
determining  whether  or  not  any  further  pro- 
ceeding, executive  or  judicial,  ought  to  be  taken 
in  relation  to  the  subject  matter  of  the  in- 
quiry. There  is  no  issue  joined  between  par- 
ties, "nor  parties  litigant.  (The  W.  B.  Chester's 
Owners  v.  U.  S.,  19  Ct.  Cls.,  681.) 

Proceedings  not  a  trial.— The  proceedings 
of  a  board  of  inquest  or  a  court  of  inquiry  are 
in  no  sense  a  trial  of  an  issue  or  of  an  accused 
person.  These  boards  perform  no  real  judicial 
function,  but  are  convened  only  for  the  purpose 
of  informing  the  department  in  a  preliminary 
way  as  to  the  facts  involved  in  the  inquiry. 
(25  Op.  Atty.  Gen.,  623;  See  note  to  art.  24, 
A.G.N.) 

Proceedings  advisory  only. — The  action  of 
courts  of  inquiry,  whether  as  to  transactions  or 
persons,  is  not  decision,  but  advice  only,  for  the 
information  of  the  executive.  (8  Op.  Atty. 
Gen.,  335,  336.) 


1055 


Sec.  1624,  Art.  60. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


Jvu'isdiction  of  civil  courts. — See  note  to 
article  (>,  A.  G.  N.,  as  to  noainterference  by 
civil  courts  with  a  naval  court  of  inquiry  in- 
vestigating a  charge  of  homicide. 

Statutes  of  lirnitation  not  applicable. — 
The  statute  of  limitations  contained  in  the 
articles  of  war  does  not  apply  to  courts  of  in- 
quiry in  the  Army,  for  the  oljjects  of  a  court  of 
inquiry  are  not  confined  to  investigation  as 
preparatory  to  a  court-martial,  but  extend  to 
the  legal  procurement  of  infoiTtiation  of  any 
sort  material  to  the  military  service,  or  the 
discipline  and  government  of  the  Army,  and 
to  guide  the  discretion  of  him  who  orders  it  in 
regard  to  a  matter  under  inquiry.  (6  Op. 
Atty.  Gen.,  239.) 

It  may  happen  that  questions  shall  arise  as 
to  an  offense  alleged  to  have  been  committed 
by  an  officer  more  than  two  years  ago,  as  to 
which  he  ought  to  be  exculpated  if  innocent, 
or  if  guilty  dismissed  by  the  President,  though 
not  liable  to  be  tried  bv  court-martial.  (6  Op. 
Atty.  Gen.,  239.) 

Art.  58.  [Oaths  of  members  and  judge  advocate.]  The  judge-advocate, 
or  person  ofRciatiiig  as  such,  shall  administer  to  the  members  the  following 
oath  or  affirmation:  ''You  do  swear  (or  affirm)  weU  and  truly  to  examine  and 
inquire,  according  to  the  evidence,  into  the  matter  now  before  you,  without 
partiality."  After  which  the  president  shall  administer  to  the  judge-advocate, 
or  person  officiating  as  such,  the  following  oath  or  affirmation:  ''You  do  swear 
(or  affirm)  truly  to  record  the  proceedings  of  this  court  and  the  evidence  to  be 
given  in  the  case  in  hearing." — (17  July,  1862,  c.  204,  s.  1,  art.  25,  v.  12,  pp. 
605,  606.) 


A  court  of  inquiry  may  be  needed  for  the  very 
purpose  of  aacertaining  whether  an  alleged 
offense  was  or  was  not  committed  within  two 
years,  and  so  informing  the  mind  and  guiding 
the  discretion  of  the  executive  on  the  very 
point  of  the  legality  of  a  court-martial.  (6 
Op.  Atty.  Gen.,  239.) 

In  the  Articles  for  the  Government  of  the 
Navy  no  limitation  of  time  is  expressed  as  to 
the  matters  liable  to  examination  by  courts  of 
inquiry;  nor  in  those  articles  is  there  any  as  to 
acts  cogniza])le  l)y  court-martial.  How  this 
omission  happened,  whether  accidentally  or 
advisedly,  does  not  appear.  In  this  respect 
the  Articles  for  the  Government  of  the  Navy 
differ  from  the  articles  of  war.  (8  Op.  Atty. 
Gen.,  335j  347,  348.) 

See  articles  61  and  62,  A.  G.  N.,  and  notes 
thereto. 

Proceedings  and  evidence. — 'See  note  to 
article  59,  A.  G.  N. 


See  note  to  article  40,   A.   G.   N.,   under 
"Whether  oath  shoidd  be  repeated  in  each 


case. 


Responsibility  for  true  record, 
to  article  52,  A.  G.  N. 


-See  note 


See  article  40,  A.  G.  N.,  and  note  thereto,  as  to 

oaths  of  members  and  judge  advocate  of 

general  courts-martial. 
Oaths  repeated  in  each  case. — The  court 
must  be  sworn  separately  and  so  report  in  each 
distinct  case.     (8  Op.  Atty.  Gen.,  335,  341.) 

Art.  59.  [Rights  of  party  inquired  of.j  The  party  whose  conduct  shall  be 
the  subject  of  inquiry,  or  his  attorney,  shall  have  the  right  to  cross-examine  all 
the  witnesses.— (17  July,  1862,  c.  204,  s.  1,  art.  23,  v.  12,  p.  605.) 


Whether  court  should  be  open  or 
closed. — Comts  of  inquiiy  are,  by  the  general 
military  law,  open  or  closed  as  the  authority 
ordering  the  court  may  determine;  and  to  have 
them  open  is  the  exception,  not  the  rule. 
(8  Op.  Atty.  Gen.,  223,  229.) 

Courts  of  inquiry  are  inherently  closed  courts, 
to  which  defendants  generally,  and  auditors 
and  spectators  occasionally,  have  access  by 
permission;  not  of  right.  (8  Op.  Atty.  Gen., 
335,  346.  See  note  to  art.  45,  A.  G.  N.,  as  to 
procedure  of  general  courts-martial.) 

Evidence;  documentary. — Official  letters 
on  file,  contemporaneous  -with  or  a  part  of  the 
incidents  to  which  thoy  relate,  are  competent 
evidence  in  a  court  of  inquiry,  both  for  and 
against  a  party,  as  are;  official  letters  which  he 
may  have  received  at  the  termination  of  a  par- 
ticular service,  the  same  being,  however,  sub- 
Art.  60.  [Proceedings ;  how  authenticated ;  use  in  other  cases.]  The  proceed- 
ings of  courts  of  inquiry  shall  be  authenticated  by  the  signature  of  the  president 


ject  to  explanations.  But  neither  letters  of 
recommendation,  nor  of  condemnation,  nor 
certificates  prepared  for  the  occasion,  nor  even 
ex  parte  affidavits,  are  competent  evidence. 
(8  Op.  Atty.  Gen.,  335,  336.) 

Experts. — By  the  military  as  well  as  by  the 
civil  law,  courts  have  authority  to  commission 
experts  for  the  examination  of  all  questions  of 
mental  or  physical  disability.  (8  Op.  Atty. 
Gen.,  335,  336.) 

See  note  to  article  42,  A.  G.  N.,  iinder  "Ex- 
pert witnesses." 

RiHes  of  procedure. — ^The  constitution  and 
the  course  of  proceeding  of  courts  of  inquiry  are 
to  be  governed  by  the  general  statutes  and  by 
the  common  law  military  as  received  and  prac- 
ticed in  the  Army  and  Navy.  (8  Op.  Atty. 
Gen.,  335.) 


1056 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  61. 


of  the  court  and  of  the  judge-advocate,  and  shall,  m  all  cases  not  capital,  nor 

extending  to  the  dismissal  of  a  commissioned  or  warrant  officer,  be  evidence 

before  a  court-martial,  provided  oral  testimony  cannot  be  obtained. —  (17  July, 

1862,  c.  204,  s.  1,  art.  24,  v.  12,  p.  605.) 

Admissibility  in  evidence  by  consent  of 
accused. — A  commissioned  officer  of  the  Navy 
can  waive  the  provisions  of  article  60,  A.  G.  N., 
and  allow  proceedings  of  a  court  of  inquiry  to  be 
e\"idence  on  a  coml-martial,  the  sentence  of 
which  may  extend  to  his  dismissal;  and  where, 
at  the  request  of  such  an  officer,  the  Secretary 
of  the  Navy  convened  a  comt-martial  to  try 
hiTT!  on  matter  which  had  already  been  the  sub- 
ject of  a  court  of  inquiiy,  on  condition  that  the 
proceedings  of  such  court  of  inquiry  be  evi- 
dence, each  party  having  the  pri\T.lege,  how- 
ever, of  introducing  other  e\idence,  the  ac- 
cused is  not  deprived  of  any  substantial  right, 
and  the  sentence  of  the  court-martial  is  not 
invahdated.  (Mullan  v.  U.  S.,  212  U.  S.,  516; 
see  C.  M.  O.  46-1917,  pp.  13-19,  for  general  note 
on  subject  of  admissibility  in  e\'idence  before 
com'ts-martial  of  the  proceedings  of  courts  of 
inquir\',  boards  of  investigation,  and  boards  of 
inquest.) 

Art.  61.  [Limitation  of  trials;  general  offenses.]     No  person  shall  be  tried 

by  court-martial  or  otherwise  punished  for  any  offense,  except  as  provided  in 

the  following  article,  which  appears  to  have  been  committed  more  than  two 

years  before  the  issuing  of  the  order  for  such  trial  or  punisliment,  unless  by 

reason  of  having  absented  himself,  or  of  some  other  manifest  impediment  he 

shall  not  have  been  amenable  to  justice  witliin  that  period. 

acts  cognizable  by  coiirts-martial.  How  this 
omission  happened,  whether  accidentally  or 
advisedly,  does  not  appear.  In  this  respect 
the  Articles  for  the  Government  of  the  Na\'y 
differ  from  the  Articles  of  War.     (8  Op.  Atty. 


Admissibility  in  civil  sviit. — ^Testimony 
taken  before  a  court  of  inquiry  can  not  be  put  in 
evidence  on  a  claim  against  the  United  States 
for  damages  and  loss  sustained  by  reason  of  a 
collision  between  a  vessel  of  the  Nav>'  and  a 
private  vessel,  unless  it  be  for  the  purpose  of 
showing  that  witnesses  who  have  testified  be- 
fore the  civil  court  have  sworn  differently 
before  the  court  of  inquiry.  (The  W.  B.  Ches- 
ter's Owners  t'.  U.  S.,  19  Ct.  Cls.,  681.) 

The  claimant  is  a  stranger  to  the  proceedings, 
though  the  subject  of  the  investigation  was  the 
destruction  of  his  schooner  by  a  naval  vessel. 
Even  if  allowed  to  be  present  and  take  part  in 
the  examination  of  witnesses,  it  was  by  cour- 
tesy only.  The  e\'idence  was  ex  parte,  taken 
by  the  United  States  for  their  own  private  use. 
(The  W.  B.  Chester's  Owners  v.  U.  S.,  19  Ct. 
Cls.,  681.) 


This  article  was  added  to  the  Articles  for  the 
Government  of  the  Na\y,  as  article  61 
thereof,  by  act  of  February  25,  1895  (28 
Stat.,  680). 

Historical  note. — By  article  138  of  '  'Orders, 
Regulations,  and  Instructions  for  the  Adminis- 
tration of  Law  and  Justice  in  the  United 
States  Na\'y,"  approved  by  the  Secretary  of 
the  Na\'y,  April  15,  1870,  it  was  provided  that 
"No  person  in  the  Navy  shall  be  liable  to  be 
tried  and  punished  by  a  court-martial  for  any 
offense  which  shall  appear  to  have  been  com- 
mitted three  years  before  the  issuing  of  the  order 
for  such  trial,  unless  the  person,  by  reason  of 
ha\-ing  absented  himself  or  some  other  mani- 
fest impediment,  shall  not  have  been  amen- 
able to  justice  within  that  time." 

The  "Orders,  Regulations,  and  Instructions 
for  the  Administration  of  Law  and  Justice  in 
the  L'nited  States  Navj^"'  were  issued  by  the 
Secretary  of  the  Na\y,  iinder  the  authority  of 
the  President,  in  1870.  Section  1547  of  the 
Re\'ised  Statutes  is  a  legislative  recognition  of 
the  regulations  of  1870,  and  "must  be  under- 
stood as  giAang  to  these  regulations  the  sanc- 
tion of  the  law."  (Smith  v.  Whitnev,  116  U. 
S.,  167,  180.) 

The  said  "Regulations  for  the  Administra- 
tion of  Law  and  Justice,"  regulating  the  pro- 
cedure of  courts-martial,  have  the  force  of  law. 
(Ex  parte  Reed,  100  U.  S.,  13,  22;  compare 
note  to  art.  42,  A.  G.  N.,  under  "Character 
CAidence.") 

In  the  2\jrticle8  for  the  Government  of  the 
Nav>-  no  limitation  of  time  is  expressed  as  to 


Gen.,  335,  347,  348,  Jan.  31,  1857. 

Article  61,  A.  G.  N.,  was  first  enacted  by  act 
of  February  25,  1895,  before  which  time  there 
was  no  statute  of  limitations  for  \iolation3  of 
the  Articles  for  the  Government  of  the  NaA^y. 
(31  Op.  Atty.  Gen.,  521,  528.) 

Desertion  in  time  of  war. — ^Article  61 
appUes  to  desertion  fi'om  the  Navy  in  time  of 
war.  In  such  case  the  two-year  period  of 
limitation  commences  to  run  from  the  date 
that  the  offender  first  absents  himself  without 
leave  and  with  the  intention  of  permanently 
abandoning  the  service.  But  he  is  amenable 
to  trial  by  coiut-martial  after  the  end  of  the 
term  for  which  he  enUsted,  provided  such 
trial  is  not  barred  by  the  statute  of  limitations. 
(Op.  Atty.  Gen.,  Feb.  27,  1922,  file  26251- 
26615:8;  see  note  below,  under  art.  62,  A.  G.  N.) 

If  the  offender  has  not  been  discharged  or 
his  status  otherwise  tenninated,  he  may  be 
tried  after  expiration  of  his  enlistment,  even 
though  he  had  not  in  the  meantime  been 
arrested  or  other  steps  taken  to  enforce  juris- 
diction. (Op.  Attv.  Gen.,  Feb.  27,  1922,  file 
26251-26615:8.) 

See  note  to  section  1418,  Revised  Statutes, 
under  "Detention  of  enlisted  men  after  expira- 
tion of  enUstment." 

View  that  statute  of  limitations  can  not 
be  waived. — ^The  accused  can  not  be  tried  by 


1057 


Sec.  1624,  Art.  61. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


court-martial  for  an  offense  of  more  than  two 
years'  standing  prcAnous  to  the  order  summon- 
ing the  court,  even  on  his  own  application,  un- 
less the  prosecution  can  show  that,  by  reason 
of  absence  or  some  other  manifest  impediment, 
the  accused  was  not  amenable  to  justice  \vithin 
the  time  limited  by  the  Articles  of  War.  The 
limitation  was  not  intended  solely  for  the 
benefit  of  persons  accused,  but  its  policy  had  a 
wider  scope,  viz,  the  prompt  prosecution  of 
offenses.  (1  Op.  Attv.  Gen.,  383;  affirmed, 
14  Op.  Atty.  Gen.,  265'.) 

This  limitation  can  not  be  waived  by  the  ac- 
cused, nor  can  he,  even  with  his  consent,  be 
tried  by  a  general  court-martial  after  the  time 
prescribed  by  the  Articles  of  War.  (6  Op. 
Atty.  Gen.,  239.) 

The  statute  of  limitations  contained  in  the 
Articles  of  War  is  a  limitation  upon  the  juris- 
diction of  courts-martial,  and  presents  an  abso- 
lute bar  to  the  trial  (under  certain  exceptions 
therein  stated),  which  can  not  be  waived  even 
by  the  accused.  (13  Op.  Atty.  Gen.,  462,  463; 
citing  1  Op.  Atty.  Gen.,  383  and  6  Op.  Atty. 
Gen.,  240.) 

When  it  appears  by  the  record  that  the  order 
for  trial  was  issued  more  than  two  years  before 
the  commission  of  the  offense,  a  plea  of  guilty 
is  not  to  be  taken  as  an  admission  by  the  ac- 
cused of  the  existence  of  an  exception  withdraw- 
ing his  case  from  the  limitation.  It  is  for  the 
prosecution  to  show,  as  a  matter  of  fact,  in 
some  way  other  than  by  the  form  of  the  plead- 
ings, that  by  reason  of  having  absented  him- 
self, or  of  some  other  manifest  impediment, 
the  accused  was  not  amenable  to  justice  within 
the  two  years.     (16  Op.  Atty.  Gen.,  170.) 

As  a  matter  of  pleading,  the  plea  of  guilty 
admits  the  existence  of  the  exceptions  which 
take  the  case  out  of  the  general  statute  of  lim- 
itations. However,  it  having  been  held  in 
previous  opinions  of  the  Attorneys  General  that 
the  limitation  can  not  be  waived  by  the  ac- 
cused, and  no  opinion  being  found  which  con- 
tradicts these,  the  rule  thus  established  should 
be  followed.     (16  Op.  Atty.  Gen.,  170.) 

View  that  statute  of  limitations  is  mat- 
ter of  defense. — The  limitation  prescribed 
for  the  trial  and  punishment  of  the  offense  of 
desertion,  by  the  Articles  of  War,  is  matter  of 
defense,  and  the  tribunal  having  jurisdiction  to 
try  the  charge  of  desertion  is  the  tribunal  hav- 
ing jurisdiction  to  determine  whether  the  bar  of 
the  statute  has  attached  or  not.  (In  re  White, 
17  Fed.  Rep.,  723.) 

A  desertion  having  taken  place,  whether  the 
statute  of  limitations  has  run  against  it  and 
barred  punishment  is  matter  of  defense,  and 
must  be  determined  by  the  same  tribunal  which 
tries  the  charge.  Should  the  case  be  tried 
before  a  court-martial  duly  organized,  and  the 
question  whether  the  offense  was  barred  by  the 
statute  of  limitations  decided  against  the  ac- 
cused, the  civil  courts  would  have  no  jurisdic- 
tion by  habeas  corpus  or  otherwise  over  such 
decision  of  the  court-martial.  (In  re  White, 
17  Fed.  Rep.,  723.) 

The  article  of  war  does  not  Limit  or  qualify 
the  jurisdiction  of  a  military  tribunal,  but  pre- 
scribes a  rule  of  procedure  for  the  benefit  of  the 
accused,  to  be  considered  and  enforced  upon 
the  trial  in  the  exercise  of  a  jurisdiction  already 


conferred.  The  limitation  is  a  matter  of  de- 
fense, which  is  to  be  entertained  and  de- 
termined like  any  other  question  invohdng  an 
adjudication  upon  the  merits  of  the  case.  (In 
re  Da\ison,  21  Fed.  Rep. ,618.) 

It  is  for  the  court-martial  and  not  for  a  civil 
court  of  the  United  States  to  decide  whether 
the  statutory  limitation  can  be  invoked  by  a 
party  accused  of  desertion  to  protect  him  from 
punishment.  (In  re  Davison,  21  Fed.  Rep., 
618.) 

The  bar  of  the  statute  of  limitations  provided 
for  in  the  Articles  of  War  in  the  case  of  a  party 
charged  with  desertion  is  a  defense  to  be  set  up 
in  the  case,  which  the  military  court  trying  the 
charge  has  jurisdiction  to  determine  for  itself, 
without  interference  from  the  ci\il  courts.  It 
is  the  duty  of  courts-martial,  in  all  cases  with- 
in its  terms,  to  give  effect  to  the  statute  of  limi- 
tations. (In  re  Zimmerman,  30  Fed.  Rep., 
176,  179.) 

In  the  case  presented  it  appears  to  the  coiort 
that  the  prosecution  is  barred  by  the  statute 
of  limitations.  An  erroneous  ruling  by  the 
military  authorities  upon  this  point  would  in- 
flict a  great  wrong  upon  the  citizen  so  tried  and 
punished.  However,  if  such  wrong  be  in- 
flicted, deliberately  or  otherwise,  there  is  still 
no  reviewing,  controlling,  or  correcting  power 
in  the  civil  courts.  Congress  in  such  case 
must  afford  a  remedy  or  the  wrong  must  be 
endured.  Had  we  the  jurisdiction  to  do  so,  we 
should  not  hesitate  to  give  full  effect  to  the  bar 
of  the  statute  by  discharging  the  prisoner  on  this 
ground.  (In  re  Zimmerman,  30  Fed.  Rep., 
176,  179.) 

A  former  conviction  and  the  statute  of  lim- 
itations are  matters  of  defense  on  the  merits, 
which  must  be  investigated  in  the  exercise  of 
jurisdiction,  and  not  facts  upon  which  the 
jurisdiction  to  hear  and  determine  the  charge 
depends.  These  matters  can  not  be  inquired 
into  on  a  petition  for  discharge  on  habeas 
corpus.  (In  re  Bogart,  3  Fed.  Gas.,  No.  1, 
596.) 

See  note  to  article  53,  A.  G.  N.,  as  to  juris- 
diction of  civil  coiirts;  and  see  note  to  article  62, 
A.G.N. 

Effect  of  pleading  statute  of  Umitations; 
admits  jurisdiction. — The  plea  of  the  statute 
of  limitations  is  not  a  plea  to  the  jurisdiction 
of  the  court,  but  a  plea  in  bar  addressed  to  a 
court  of  competent  jurisdiction.  It  confesses 
the  jurisdiction  of  the  court,  and  refers  the  mat- 
ter to  trial  in  that  court  to  ascertain  the  truth  of 
the  facts  and  the  law  arising  out  of  the  facts. 
The  plea  of  the  statute  of  limitations  admits  the 
cognizance  of  the  court  to  hear  and  determine 
the  matters  of  offense.  (6  Op.  Atty.  Gen., 
506,  512.) 

Absence;  not  amenable  to  justice. — ^The 
words,  "by  reason  of  having  absented  himself," 
certainly  do  not  mean  absence  from  the  State 
or  beyond  seas  as  those  terms  are  ordinarily 
used  in  statutes  of  limitation.  Nor  do  they 
mean  merely  absence  from  the  company  in 
which  or  locality  where  the  offender  enlisted. 
The  absence  contemplated  by  the  article  is  an 
absence  from  the  reach  of  the  jurisdiction  of  the 
military  authorities.  To  avoid  the  limitation  of 
the  article,  it  would  seem  to  be  necessary  that  the 
accused  should  not  only  be  absent  but  that  he 


1058 


The  Navy. 


Ft.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  61. 


should  be  where  the  militarj^  authorities  by 
reasonable  diligence  could  not  make  him  amen- 
able to  justice.     (14  Op.  Atty.  Gen.,  265.) 

Absence,  in  order  to  bring  the  accused  -vvith- 
in  the  exception,  must  be  such  as  to  render  him 
"not  amenable  to  justice."  (15  Op.  Atty. 
Gen.,  152,  16.3.) 

The  general  significance  of  the  word  "amen- 
able" in  its  modern  sense  as  a  law  term  is 
"responsible,  subject  to  answer  in  a  court  of 
justice,  liable  to  punishment."  As  used  in  the 
above  proAdsion  it  would  seem  to  mean,  within 
the  reach  and  power  of  the  military  authorities 
to  bring  to  trial  before  a  court-martial ;  that  is, 
in  a  situation  where  the  responsibility  or  lia- 
bility to  answer  for  the  absence  can  be  made 
effectiA-e,  or  within  the  jurisdiction  of  a  court- 
martial.     (15  Op.  Atty.  Gen.,  152,  163.) 

Unquestionably,  absence  in  a  foreign  land 
would  place  the  accused  beyond  the  jurisdic- 
tion of  a  court-martial,  and  thus  make  him  not 
amenable;  so,  it  has  been  thought,  would  absence 
within  the  limits  of  this  countn.',  if  he  were 
where  the  militaiy  authorities  by  reasonable 
diligence  could  not  discover  him.  (15  Op. 
Attv.  Gen.,  152,  163;  see  also  C.  M.  0.  27,  1913, 
pp. '13-18;  Naval  Dig.,  1916,  pp.  589-592.) 

It  would  be  difficult,  perhaps  impossible,  to 
lay  down  any  general  rule  whereby  to  determine 
in  all  cases  under  what  facts  and  circumstances 
the  accused  may  be  deemed  to  be  beyond  the 
reach  and  power  of  the  military  authorities  to 
bring  him  to  trial,  or  beyond  the  jurisdiction 
of  a  court-martial.  This  is  a  matter  which 
must  be  left  in  each  case  to  the  judgment  of  the 
court  itself,  upon  the  particular  facts  and  cir- 
cumstances appearing  therein,  subject  to  re- 
Aision  bv  the  proper  authorities.  (15  Op.  Atty. 
Gen.,  152,  163.) 

The  word  "absence  "  in  the  article  means  ab- 
sence from  the  jurisdiction  of  the  military 
courts;  that  is,  from  the  United  States.  (In  re 
DaAison,  4  Fed.  Rep.,  507;  reversed  on  other 
grounds,  21  Fed.  Rep.,  618.) 

For  other  cases,  see  note  to  article  62,  A.  G.  N. 

"Manifest  impediment." — Causes  of  delay 
in  bringing  an  officer  to  trial  can  be  arranged  in 
three  classes:  First,  those  that  are  created  or 
interposed  by  the  act  of  the  party;  second,  cir- 
cumstances arising  independently  either  of  his 
action  or  that  of  the  Government;  and  third, 
such  as  are  controlled  by  the  Government  itself. 
The  first  class  constitute  manifest  impediments 
within  the  meaning  of  the  statute  of  limitations. 
It  is  a  broad  principle  of  law  and  of  natural 
justice  that  no  man  can  take  adA-antage  of  his 
own  wrong.  Examples  are,  preventing  wit- 
nesses appearing  against  him,  or  the  like.  (9 
Op.  Atty.  Gen.,  181:  compare  14  Op.  Atty.  Gen. 
265.) 

Delay  occasioned  by  the  Government  itself 
is  not  a  manifest  impediment.  The  accused 
has  a  right  to  a  trial  Avitliin  two  years.  He  can 
not  be  deprived  of  that  right  at  the  option  of 
those  who  have  power  to  try  him.  The  dis- 
missal of  an  officer  under  charges,  if  an  impedi- 
ment, is  created  by  the  Government  itself.  It 
was  a  voluntan,',  indefinite  suspension,  if  not 
an  abandonment,  on  the  part  of  the  Govern- 
ment of  the  charges  then  pending  and  is  clearly 
no  manifest  impediment  within  the  meaning  of 
the  Articles  of  War.     (9  Op.  Atty.  Gen.,  181.) 


The  concealment  of  an  offense  by  the  accused 
is  not  a  "manifest  impediment"  to  his  prose- 
cution within  the  meaning  of  the  Articles  of 
War  and  does  not  prevent  the  limitation  from 
running  in  his  favor.     (14  Op.  Atty.  Gen.,  52.) 

The  words,  "other  manifest  impediment," 
must  be  construed  in  connection  A^dth  the  words 
immediately  preceding,  A-iz,  "by  reason  of  haA'- 
ing absented  himself, ' '  and ,  taken  together,  it  is 
apparent  that  the  impediment  intended  by  the 
article  is  an  impediment  similar  in  kind  to 
absence,  and  that  it  is  one  which  renders  it 
impossible  for  a  prosecution  to  take  place.  It 
could  not  be  extended  so  far  as  to  include 
concealment  of  the  offense.  (14  Op.  Atty. 
Gen.,  52.). 

Persons  prosecuted  for  crime  are  not  allowed 
to  claim  that  the  statute  of  limitations  runs  in 
their  faA'or  for  and  during  the  time  they  are 
absent  from  the  State  or  beyond  seas,  or,  in 
other  words,  beyond  the  jurisdiction  of  the 
court.  But  any  concealment  of  the  CA-idence 
of  their  guilt,  or  other  like  fraud  on  their  part, 
while  they  remain  in  that  jurisdiction,  by  which 
the  prosecution  is  delayed  until  the  time  of  the 
bar  has  run,  does  not  deprive  them  of  the  bene- 
fit of  the  statute.  (14  Op.  Attv.  Gen.,  265, 
modifjdng  9  Op.  Atty.  Gen.,  181, "183.) 

"Manifest  impediment,"  as  used  in  thje 
Articles  of  War,  does  not  mean  merely  want  of 
eAddence  or  ignorance  as  to  the  offender  or  of- 
fense by  the  militarv'  authorities,  but  it  means 
something  akin  to  absence — want  of  power,  or 
a  phvsical  inabilitv  to  bring  the  partv  charged 
to  trial.     (14  Op.  Atty.  Gen.,  265.) 

"Other  manifest  impediment"  means  only 
such  impediments  as  operate  to  prevent  the 
military  court  from  exercising  its  jurisdiction, 
as,  forinstance,hisbeing  continuously  a  prisoner 
in  the  hands  of  the  enemy,  or  being  imprisoned 
under  the  sentence  of  a  ciAil  court  for  a  time, 
or  the  like.  (In  re  DaA-ison,  4  Fed.  Rep.,  507; 
reversed  on  other  grounds,  21  Fed.  Rep.,  618.) 

For  other  cases,  see  note  to  article  62,  A.  G.  N. 

In  custody  of  cIatQ  authorities. — Where  an 
officer  charged  Avith  the  commission  of  an  of- 
fense in  A-iolation  of  both  the  State  law  and  the 
Articles  of  War  is  deliA-ered  to  the  ciA-il  author- 
ities for  trial,  the  military  authorities  should 
take  heed  that  the  charges  for  Aiolation  of  the 
Articles  of  War  be  put  in  due  fonn  and  so  re- 
main suspended  or  adjourned  merely,  in  order 
that  the  limitation  of  time  proA-ided  by  the 
Articles  of  War  do  not  begin  to  run;  and  that, 
howeA^er  much  time  be  consumed  in  the  ciAil 
proceedings,  still,  at  the  expiration  of  them,  he 
may  be  duly  tried  by  a  court  of  his  military 
peers.     (6  Op.  Atty.  Gen.,  413,  428.) 

A  prosecution  of  an  officer  before  a  court- 
martial  haA'ing  been  instituted  and  the  party 
arraigned,  Avithin  the  tAvo  years  required  by 
law,  and  the  accused  pleading  the  pendency  of 
civil  proceedings  arising  in  the  matter,  AA'here- 
upon  the  proceedings  of  the  court-martial  were 
suspended  until  reassembled  by  an  order 
issued  after  the  lapse  of  two  years,  held  that  the 
statute  of  limita,tions  could  not  then  be  pleaded 
in  the  case.     (6  Op.  Atty.  Gen.,  506.) 

Officer  dismissed  and  subsequently  re- 
stored to  the  Army. — ^^^lere  charges  Avere  pre- 
ferred against  an  officer  in  the  Army  for  disobe- 
dience of  orders  in  June,  1856,  and  in  Septem- 


1059 


Sec.  1624,  Art.  62. 


PL  2.  REVISED  STATUTES. 


The  Navy. 


ber  following,  for  other  reasons,  he  was  dismissed 
the  service  by  the  President,  no  court-martial 
having  been  ordered  to  investigate  the  charges 
against  him,  held  that  on  his  being  restored  to 
the  Army  he  could  not  be  tried  on  the  charges 
pending  against  him  at  the  time  of  his  dis- 
missal, after  the  lapse  of  two  years  since  the 
conmiission  of  the  alleged  onense.  (9  Op. 
Atty.  Gen.,  181.) 

The  question  whether  an  officer  who  has  been 
dismissed  from  the  ser\dce  is  lial)le  to  be  tried 
by  court-martial  for  offenses  previously  com- 
mitted, examined;  but  no  opinion  given 
thereon.  (9  Op.  Atty.  Gen.,  181.  See  note 
above,  under  preamble  to  sec.  1624,  R.  S.,  as  to 
jurisdiction  of  persons  after  discharge  from  the 
Navy,  or  after  release  from  active  duty  in  the 
Naval  Reserve  Force.) 

Jurisdiction  after  discharge. — Under  the 
article  of  war  (corresponding  to  this  article)  it 
appears  that  a  soldier  may  be  arrested  and  tried 
after  the  expiration  of  his  tenn  of  service  for  a 
military  offense  committed  during  such  term  of 
ser\dce,  so  that  the  order  for  the  court-martial 
is  issued  within  two  years  from  the  commission 
of  the  offense.  In  any  view  of  the  matter,  a 
soldier  may  be  held  for  trial  after  the  term  of 
his  enlistment,  if  arrested  for  the  offense  be- 
fore the  expiration  of  the  term.  (In  re  Bird, 
3  Fed.  Cas.  No.  1,428.) 

The  two  years'  limitation  presaibed  by  the 
88th  article  of  war  (similar  te  art.  61,  A.  G.  N.) 
applies  to  all  offenses  triable  and  punishable 
by  court-martial,  including  those  which  may 
be  thus  tried  and  punished  under  the  act  of 
March  2.  1863  (12  Stat.,  696;  see  art.  14,  A.  G. 


N.),  punishing  frauds  upon  the  United  States 
by  persons  in  the  land  and  naval  forces;  and 
providing  that  any  person  committing  such 
offense  who  shall  afterwards  be  discharged  or 
dismissed  shall,  notwithstanding  such  dis- 
charge or  disnussal,  continue  to  be  liable  to  be 
arrested  and  held  for  trial  and  sentence  by  a 
court-martial  in  the  same  manner  and  to  the 
same  extent  as  if  he  had  not  received  such  dis- 
charge or  been  dismissed.  (14  Op.  Atty. 
Gen.,  52.) 

Article  61,  A.  G.  N.,  may,  with  some  force, 
be  said  to  provide  by  implication,  affirmatively, 
viz,  that  any  person  committing  an  offense 
within  two  years  before  the  issuing  of  the 
order  for  trial  may  be  tried  therefor,  whether 
he  has  left  the  service  or  not.  However,  it  is 
doubtful  whether  the  mere  fixing  by  Congress 
of  a  general  period  of  limitation  should  be 
be  taken  to  indicate  an  intention  to  extend  the 
basic  jurisdiction  over  a  class  not  subject  to  it 
theretofore.  It  is  possible  that  the  attention 
of  Congress  was  not  at  all  engaged  with  the  sub- 
ject of  such  basic  jurisdiction.  (31  Op.  Atty. 
Gen.,  521,  528.) 

See  note  under  preamble  to  section  1624, 
Revised  Statutes,  as  to  jurisdiction  of  pereona 
discharged  fi'om  the  Navy,  whose  enlistment 
has  expired,  or  who  have  been  relieved  fiom 
duty  in  the  Naval  Reserve  Force;  and  see  notes 
above,  under  "Manifest  impediment,"  and 
"  Desertion  in  time  of  war." 

No  limitation  in  proceedings  before 
courts  of  inquiry. — See  note  to  article  57, 
A.  G.  N. 


Art.  62.  [Limitation  of  trials ;  desertion  in  time  of  peace.]  No  person 
shall  be  tried  by  court-martial  or  otherwise  punished  for  desertion  in  time  of 
peace  committed  more  than  two  years  before  the  issuing  of  the  order  for  such 
trial  or  punishment,  unless  he  shall  meanwhile  have  absented  himself  from  the 
United  States,  or  by  reason  of  some  other  manifest  impediment  shall  not  have 
been  amenable  to  justice  within  that  period,  in  which  case  the  time  of  his 
absence  shall  be  excluded  in  computing  the  period  of  the  limitation:  Provided, 
That  said  limitation  shall  not  begin  until  the  end  of  the  term  for  which  said 
person  was  enlisted  in  the  service. 


This  article  was  added  to  the  Articles  for  the 
Government  of  the  Navy,  as  article  62 
thereof,  by  act  of  February  25,  1895  (28 
Stat.,  680).  See  historical  note  under 
article  61,  A.  G.  N. 

Whether  desertion  is  continuing  offense; 
when  statute  begins  to  run. — The  general 
limitation  proA'ided  by  the  Articles  of  War  held 
applicable  to  the  offense  of  desertion,  no  special 
provision  being  made  for  that  offense.  The 
limitation  begins  to  run  from  the  commission 
of  the  offense,  except  in  a  case  where,  by  reason 
of  "manifest  impediment,"  the  accused  is 
not  amenable  to  justice  within  two  years  from 
that  time.  In  such  case  it  begins  to  run  from 
the  removal  of  the  impediment.  (15  Op.  Atty. 
Gen.,  152.) 

Desertion  is  a  continuing  offense;  an  offense 
which  may  endure  (that  is,  be  continually 
committed)  from  day  to  day  after  the  period  of 


its  completion.  But  the  continuing  commis- 
sion thereof  is  limited  by  the  obligation  to  serve 
imposed  upon  the  deserter  by  his  engagement. 
When  that  obligation  ceases  to  exist,  the  com- 
mission of  the  offense  necessarily  terminates, 
and  the  limitation  then  begins  to  run  in  cases 
notexcepted.  (15  Op.  Atty.  Gen.,  152;  affirmed, 
16  Op.  Atty.  Gen.,  170,  396.) 

Enlistments  are  required  to  be  for  a  specified 
time.  By  his  engagement  the  soldier  is  bound 
for  a  specific  term  of  ser\ice,  the  last  day  of 
which  is  as  much  fixed  by  the  contract  as  the 
first.  With  the  last  day  of  the  term  his  engage- 
ment expires,  and  with  the  expiration  of  his  en- 
gagement the  obligation  to  serve,  thereby  im- 
posed, is  at  an  end.  This  results  notwithstand- 
ing that  there  has  been  an  infraction  of  the  con- 
tract by  desertion  or  otherwise,  unless  the 
soldier,  before  the  term  is  up,  consents  to  an 
extension.  (15  Op.  Atty.  Gen.,  152;  affirmed, 
16  Op.  Atty.  Gen.,  170,  396.) 


1060 


The  Navy. 


PL  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  62. 


The  provision  in  the  Articles  of  War  that  a 
deserter  shall  be  liable  to  serve  for  such  period 
as  necessary  to  make  good  time  lost  by  his  un- 
authorized absence  is  a  penal  pro\ision,  and 
operates  only  after  con\'iction.  (15  Op.  Atty. 
Gen.,  152;  affirmed,  16  Op.  Atty.  Gen.,  170, 396.) 

For  reasons  above  stated,  held,  in  the  case  of 
an  enlisted  soldier,  that  (excepting  where  the 
offender  has  previously  surrendered  himself  or 
been  apprehended,  or  whereby  reason  of  mani- 
fest impediment  he  is  not  amenable  to  justice) 
the  limitation  begins  to  run  from  the  last  day 
of  the  term  for  which  he  enlisted,  under  the 
general  article  applicable  to  all  offenses,  and  in 
the  absence  of  any  specific  enactment  applica- 
ble to  desertion.  (15  Op.  Atty.  Gen.,  152; 
affirmed,  16  Op.  Atty.  Gen.,  170,  396.) 

In  the  case  of  desertion  by  a  commissioned 
officer,  whose  engagement  is  an  unlimited  one, 
the  limitation  begins  to  run  only  from  the  date  of 
apprehension  or  surrender.  (15  Op.  Atty.  Gen., 
152,  163;  affirmed,  16  Op.  Atty.  Gen.,  170, 396.) 

It  would_  certainly  be  a  startling  proposition 
that  there  is  no  limitation  at  all  upon  prosecu- 
tions for  the  offense  of  desertion ;  that  one  who 
has  once  been  a  deserter  is  subject  during  the 
whole  of  his  natural  life  to  be  brought  to  trial 
before  a  military  court  and  punished  for  this 
offense,  even  in  extreme  old  age.  With  the 
single  exception  of  the  crime  of  murder,  the 
almost  utdversal  poUcy  of  the  criminal  law  is 
to  prescribe  a  term  within  which  the  offender 
shall  be  brought  to  trial.  (In  re  DaAison,  4 
Fed.  Rep.,  507;  reversed  on  other  grounds,  21 
Fed.  Rep.,  618.) 

The  whole  effect  of  the  limitation  can  not  be 
taken  away  on  the  theory  that  the  desertion 
may  be  considered  for  some  purposes  to  be  a 
continuing  offense.  The  offense  was  complete 
for  the  purpose  of  the  limitation  on  the  day 
that  the  accused  deserted  and  which  was 
charged  against  him  as  the  date  the  offense  was 
committed.  (In  re  Da\ison,  4  Fed.  Rep.,  507; 
reversed  on  other  grounds,  21  Fed.  Rep.,  618.) 

Were  the  question  properly  before  us,  we 
should  have  no  difficulty  in  reaching  the  same 
conclusion  as  to  the  effect  of  the  statute  of 
limitations  as  that  attained  in  the  Davison  case 
(4  Fed.  Rep.,  507);  but  that  question  is  not 
properly  before  us;  as  it  is  exclusively  a  ques- 
tion for  the  tribunal  ha\T.ng  jurisdiction  to  try  a 
party  charged  with  the  oflense  of  desertion, 
we  are  nqt  authorized  to  consider  the  question 
at  all.     (In  re  White,  17  Fed.  Rep.,  723.) 

A  question  has  arisen  whether  desertion  is  a 
continuing  offense  in  such  sense  that  the 
statute  does  not  begin  to  run  until  the  expira- 
tion of  the  term  of  enlistment.  A  continuing 
civil  or  military  obligation  to  serve  until  the 
expiration  of  the  term  of  enlistment  is  one 
thing,  and  a  continuing  criminal  offense,  if 
such  there  can  be,  which  is  perfected  and  ripe 
for  charges  and  trial  at  the  moment  it  is  "com- 
mitted" for  the  purpose  of  barring  a  trial  and 
punishment  under  the  statute  of  limitations,  is 
quite  another.  Some,  however,  maintain  the 
affirmative  of  the  proposition,  notwithstanding 
the  language  of  the  statute  is,  after  the  offense 
"appears  to  have  been  committed."  Although 
by  no  means  satisfied  with  such  \dew,  held  that 
the  question  whether  the  trial  is  barred  by  the 
statute  of  limitations  is  one  for  determination 


bv    the    court-martial.     (In    re    Zimmerman, 

30  Fed.  Rep.,  176,179.) 

The_  above  cases  reviewed,  and  held  that 
desertion  from  the  Navy  is  not  a  continuing 
offense;  that  it  is  committed  and  is  complete 
at  the  moment  the  person  absents  himself  with 
Uie  requisite  intent.  (Op.  Atty.  Gen.,  Feb.  27, 
1922,  file  26251-26615:8.) 

See  note  above,  under  article  61,  A.  G.  N., 
as  to  desertion  in  time  of  war. 

Trial  after  expiration  of  enlistment. — 
The  jurisdiction  of  a  naval  court-martial  is, 
by  the  Articles  for  the  Government  of  the  Navy, 
confined  to  persons  in  the  naval  service,  except 
for  offenses  set  forth  in  article  14,  A.  G.  N.,  and 
for  the  offense  of  desertion  in  time  of  peace  as 
set  forth  in  article  62,  A.  G.  N.  Hence,  in  the 
case  of  one  who  deserted  from  the  Marine  Corps 
in  time  of  war,  and  whose  enUstment  expired 
while  he  was  in  desertion,  held  that  a  naval 
court-martial  did  not  have  jiu-isdiction  to  try 
him  for  such  desertion  after  the  date  his  enlist- 
ment expired;  and  the  proceedings,  findings, 
and  sentence  were  accordingly  disapproved. 
(C.  M.  O.  151,  1920,  pp.  11,  12,  case  of  George 
M.  Runyan,  citing  15  Op.  Atty.  Gen.,  152,  and 

31  Op.  Atty.  Gen.,  521.     But  see  ex  parte  Clark, 
noted  below.) 

Opinion  in  case  of  George  M.  Runyan  (CM. 
O.  151,  1920,  above  noted),  cited,  and  re- 
marked with  respect  thereto:  "If  the  effect 
thereof  is  that  a  man  may  desert,  remain  in 
hiding  until  the  time  of  his  enlistment  expires, 
and  then  escape  all  responsibility,  I  can  not 
agree  with  such  a  conclusion.  The  effect 
thereof  upon  the  morale  of  the  Army  and  Navy 
alike  would  be  disastrous.  While  there  is  no 
obligation  to  serve  after  the  period  of  enlistment 
it  does  not  follow  that  conduct  during  that 
period  may  go  unpunished  for  the  reason  as- 
signed. If  that  were  the  law,  it  might  be  well 
urged  that  a  com't-martial  has  no  power  to 
imprison  after  the  expiration  of  the  enlistment. ' ' 
(Ex  parte  Clark,  271  Fed.  Rep.,  533.) 

A  marine  deserted  in  Germany  while  de- 
tached for  service  with  the  Army;  subse- 
quently, and  shortly  after  his  term  of  enlistment 
would  have  expired,  the  French  authorities 
surrendered  him  to  the  American  Army  at 
Paris;  he  was  then  delivered  by  the  military 
authorities  to  the  custody  of  the  commandant 
of  the  navy  yard  at  New  York,  and  a  naval 
court-martial  was  convened  to  try  him  for  de- 
sertion. Held,  first,  that  the  naval  comt- 
martial  had  jurisdiction  of  the  desertion  com- 
mitted by  said  marine  in  violation  of  the  Articles 
of  War  [see  sec.  1621,  R.  S.,  and  note  thereto]; 
second,  that  there  is  no  merit  in  the  contention 
that  the  naval  authorities  are  without  jurisdic- 
tion because  his  term  of  enlistment  had  ex- 
pired.   (Ex  parte  Clark,  271  Fed.  Rep.,  533.) 

A  deserter  from  the  Army  who  has  never 
been  discharged  from  the  service  is  still  subject 
to  the  jurisdiction  of  a  military  tribunal,  not- 
withstanding that  his  period  of  enlistment  has 
expired;  and  while  he  may  plead  the  statute 
of  limitations  as  a  defense  to  a  prosecution  for 
desertion,  a  civil  court  will  not  interfere  with 
such  a  prosecution  by  a  military  tribunal  be- 
fore that  court  has  acted  on  and  decided  the 
case.  As  he  has  not  been  discharged  from  the 
Army,  he  is  subject  to  the  jurisdiction  of  a  mili- 


1061 


Sec.  1624,  Art.  63. 


rt.  2.  REVISED  STATUTES. 


The  Navy. 


tary  tribunal.  (In  re  Cadwallader,  127  Fed. 
Rep.,  881.) 

An  enlisted  man  eontinues  in  the  naval  serv- 
iee  after  the  expiration  of  his  enlistment  until 
there  has  been  some  act,  such  as  a  discharge, 
to  terminate  the  status  created  by  his  contract 
of  enlistment;  and  while  so  in  the  service  he 
may  be  tried  by  court-martial  for  offenses  com» 
mitted  during  his  period  of  enlistment,  whether 
or  not  he  has  in  the  meantime  been  arrested  or 
other  steps  taken  to  enforce  the  jurisdiction. 
(Op.  Atty.  Gen.,  Feb.  27,  1922,  file  26251- 
26615:8;  see  note  to  art.  61,  A.  G.  N.,  under 
■'Desertion  in  time  of  war.'") 

A  man  enlisted  in  the  Navy  January  4,  1908, 
for  a  term  of  four  years;  his  enlistment  expired 
on  January  3,  1912;  in  the  meantime,  he  was 
declared  a  deserter  on  March  7,  1908;  he  sur- 
rendered to  the  naval  authorities  on  September 
20,  1913;  the  Bureau  of  Navigation  directed 
removal  of  the  mark  of  desertion  from  his  rec- 
ord, October  8,  1913;  he  was  tried  by  summary 
court-martial  for  absence  \\'ithout  leave  on 
October  20,  1913;  was  sentenced  to  solitary 
confinement  for  30  days  and  extra  police  duties 
for  60  days;  which  said  sentence  was  duly  ap- 
proved and  executed.  (20  Comp.  Dec, 
751.) 

By  an  act  approved  January  29,  1813  (2  Stat., 
796),  it  was  provided  that  deserters  from  the 
Army  should  be  liable  to  make  good  time  lost 
by  absence  in  desertion,  ''and  that  such  soldier 
shall  and  may  be  tried  by  a  court-martial  and 
punished  although  the  term  of  his  enlistment 
may  have  elapsed  previous  to  his  being  appre- 
hended or  tried."  It  may  well  be  doubted 
whether,  in  the  absence  of  this  enactment,  a 
soldier  was  triable  by  a  court-martial  organized 
after  the  expiration  of  his  term  of  enlistment, 
for  any  offense  committed  during  his  term; 
but  that  act  was  designed  for  the  punishment 
of  the  offense  of  desertion,  although  the  term 
of  enlistment  may  have  elapsed  previous  to 
the  apprehension  and  trial  of  the  offender. 
But  said  act  of  1813  was  not  intended  to  repeal 
the  article  of  war  limiting  the  time  for  trial  of 
offenses,  and  to  make  a  deserter  liable  to  betried 
at  any  time  after  the  expiration  of  his  enlist- 
ment; the  limitation  imposed  by  that  article 
still  remained.     (13  Op.  Atty.  Gen.,  462.) 

Trial  void  if  in  violation  of  statute  of 
limitation. — A  man  deserted  from  the  Army 
on  October  2,  1865;  his  enlistment  would  have 
expired  on  August  21,  1868;  he  was  appre- 
hended April  13,  1871.  By  act  of  April  10, 
1806,  article  88  (2  Stat.,  369),  it  was  declared 
that  "no  person  shall  be  liable  to  be  tried  and 
punished  by  a  general  court-martial  for  any 
offense  which  shall  appear  to  have  been  com- 
mitted within  two  years  before  the  issuing  of 
the  order  for  such  trial,  unless,"  etc.  Said 
article  of  war  applied  to  desertion  as  well  as  to 
other  offenses.  The  accused  in  this  case  did 
not  come  within  the  exceptions  contained  in 
said  article.    Held,  that  the  court-martial  was 


without  jurisdiction.  (13  Op.  Atty.  Gen., 
462.) 

Where  a  soldier  enlisted  on  August  16,  1870, 
deserted  from  the  Army  on  September  19,  1870, 
but  in  about  one  year  afterwards  reenlisted  un- 
der an  alias  in  another  regiment  and  an  order 
was  issued  on  !March  11,  1873,  for  his  trial  by 
court-martial  for  desertion,  for  which  offense  he 
was  thereupon  tried  by  the  court,  con\dcted, 
and  sentenced  to  punishment,  held  that  the 
prosecution  was  barred  by  the  two  years'  lim- 
itation prescribed  by  the  Articles  of  War,  and 
that  consequently  the  conviction  and  sentence 
are  void.     (14  Op.  Atty.  Gen.,  265.) 

See  note  to  article  61,  A.  G.  N.,  under  "View 
that  statute  of  limitations  is  matter  of  defense." 

Statute  of  limitations  matter  of  de- 
fense.— The  judgment  of  a  court-martial,  reg- 
ularly organized,  convicting  and  sentencing  a 
soldier  for  desertion,  which  judgment  has  been 
confirmed  as  pro\'ided  in  the  Articles  of  War, 
is  not  subject  to  re"view  by  a  cixdl  court  in  ha- 
beas corpus  proceedings  on  the  ground  that  the 
prosecution  was  barred  by  limitation  under  the 
I03d  article  of  war,  such  defense  being  one  to 
the  merits,  to  be  determined  by  the  court- 
martial,  and  not  affecting  its  jurisdiction.  (Ex 
parte  To wnsend,  133  Fed.  Rep.,  74;  see  note  to 
art.  61,  A.  G.  N.) 

Absence. — See  note  to  article  61,  A.  G.  N. 

Absence  without  leave  is  not  per  se  sufficient 
to  prevent  the  limitation  from  running.  (15 
Op.  Atty.  Gen.,  152.) 

The  exception  from  the  limitation  contained 
in  the  103d  article  of  war  does  not  produce  any 
effect  where  the  limitation  itself  would  not 
otherwise  run.  Hence,  absence  without  leave 
during  the  term  of  enlistment,  in  the  case  of  a 
deserter,  is  unimportant,  inasmuch  as  the  of- 
fense of  desertion,  being  a  continuing  one  dur- 
ing such  term,  the  limitation  would  not  other- 
wise begin  to  run  until  the  expiration  thereof. 
(16  0p.^Atty.  Gen.,  170.) 

Where  the  absence  of  the  deserter  continues 
after  his  term  of  serxdce  has  expired,  no  pre- 
sumption of  law  arises  that  he  was  not  amenable 
to  justice  during  such  absence,  and  that  liis  case 
is  accordingly  within  the  exception.  The 
facts  must  be  shown  by  evidence  submitted  at 
the  trial.  (16  Op.  Atty.  Gen.,  170.  Compare 
cases  noted  under  art.  61,  A.  G.  N.,  and  under 
this  article,  as  to  statute  of  limitations  being 
matter  of  defense.) 

Manifest  impediment.— See  note  to  article 
61,  A.  G.  N. 

It  is  apparent  that,  as  relator  had  deserted 
and  could  not  be  found  during  the  period  of  his 
desertion,  there  was  such  a  "manifest  impedi- 
ment" in  the  way  of  bringing  him  to  justice  as 
would  justify  excluding  the  period  of  his  deser- 
tion from  any  computation  of  time  within 
which    a   prosecution    must   be    begun.     (Ex 

garte  Clark,   271   Fed.    Rep.,    533;      see  also 
.  M.  O.  27,  1913,  pp.  13-18;  Naval  Dig.,  1916, 
pp.  589-592.) 


Art.  63.  [Limitation  of  punishments ;  time  of  peace.]  Whenever,  by  any  of 
the  Articles  for  the  Government  of  the  Navy  of  the  United  States,  the  punish- 
ment on  conviction  of  an  offense  is  left  to  the  discretion  of  the  court-martial, 
the  punishment  therefor  shall  not,  in  time  of  peace,  be  in  excess  of  a  limit 
which  the  President  may  prescribe. 

1062 


The  Navy. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1624,  Art.  63- 


This  article  was  added  to  the  Articles  for  the 
Government  of  the  Navy,  as  article  63 
thereof,  by  act  of  February  27,  1895  (28 
Stat.,  689). 

Where  no  limitation  prescribed  by  the 
President. — Where  the  Articles  of  War  pro- 
\ided  that  the  punishment  shall  not,  in  time  of 
peace,  be  in  excess  of  a  limit  which  the  Presi- 
dent may  prescribe,  and  the  Pi'esident,  in  pre- 
scribing limitations  of  punishment,  made  same 
applicable  in  terms  to  enUsted  men  only,  held 
that  the  sentence  of  a  court-martial  in  the  case 
of  a  commissioned  officer,  which  was  approved 
by  the  President,  was  valid,  notwithstanding 
objection  that  such  sentence  was  in  excess  of 
the  limit  which  had  been  prescribed  by  the 
President;  that  the  limitations  so  prescribed 
were  applicable  to  enlisted  men  only ;  and  that 
it  is  e\ident  that  a  limit  on  discretion  in  pun- 
ishment, to  be  imposed  by  the  President,  can 
have  only  such  operation  as  he  may  affirma- 
tively prescribe.  (Carter  v.  McClaughry,  183 
U.  S.,  365,  382.) 

Punishment  for  repeated  oflfense. — Ev- 
ery successive  disobedience  of  orders  is  a  fresh 
offense  and  subjects  the  offender  to  additional 
punishment.  It  has  been  settled  in  a  penal 
prosecution  that  a  like  act  when  prohibited, 
if  distinctly  repeated  even  on  the  same  day, 
constitutes  a  second  offense  and  incurs  an 
additional  penalty.  (Wilkes  v.  Dinsman,  7 
How.,  89,  128.) 

Single  sentence  for  all  offenses. — The 
rule  is  established  by  military  usage  that  the 
sentence  of  a  court-martial  shall  be  in  every 
case  an  entirety;  that  is,  that  there  shall  be  but 
a  single  sentence  covering  all  the  convictions 
and  all  the  charges  and  specifications  upon 
which  the  accused  is  found  guilty,  however 
separate  and  distinct  may  be  the  different 
offenses  found,  and  however  different  may  be 
the  punishments  called  for  by  the  offenses. 
Where,  then,  there  is  a  con\'iction  of  several 
offenses,  the  sentence  is  warranted  to  the  ex- 
tent that  such  offenses  are  punishable,  even 
where  the  offenses  are  in  \'iolation  of  the  same 
article.  Cumulative  sentences  are  not  cumu- 
lative punishments,  and  a  single  sentence  for 
several  offenses  in  excess  of  that  prescribed  for 
one  offense  mav  be  authorized  by  statute; 
(Carter  v.  McClaughiy,  183  U.  S.,  365,  393,  394; 
see  also  notes  to  arts.  14,  22,  and  53,  A.  G.  N.) 

Sentences  cumulative. — The  customary 
military  law  and  the  Army  Regulations  unite 
in  requiring  that  different  sentences  to  im- 
prisonment, imposed  by  separate  courts-martial 
upon  the  same  offender  for  distinct  offenses,  be 
regarded  as  cumulative  and  be  executed  con- 
secutively, one  upon  the  expiration  of  another, 
in  the  order  of  their  imposition.  (Kirkman  v. 
McClaughry,  160  Fed.  Rep.,  436.) 

Cruel  and  unusual  punishments. — See 
article  49,  A.  G.  N.,  as  to  prohibited  punish- 
ments; and  see  note  to  Constitution,  eighth 
amendment. 

A  sentence  of  dismissal  in  the  case  of  an  offi- 
cer of  the  Marine  Corps  is  not  illegal,  nor  in 
conflict  with  the  provision  of  the  Constitution 
which  declares  that  cruel  and  unusual  pun- 
ishments shall  not  be  inflicted,  although  under 
the  circumstances  severe  and  harsh,  it  appear- 
ing that  the  milder  punishment  of  reprimand  or 


suspension  would  have  fully  satisfied  the  most 
rigorous  demands  of  justice.  (3  Op.  Atty.  Gen., 
631.) 

The  words,  "such  other  punishment  as  a 
court-martial  shall  adjudge,"  are  to  be  limited 
by  the  custom  of  the  service,  and  authorize 
only  such  punishments  as  are  usual.  (10  Op. 
Atty  .Gen.,  158.) 

It  is  certainly  hard  to  mark  the  line  where 
usual  and  proper  punishments  end  and  unusual 
and  cruel  ones  begin;  and  the  sentence  pro- 
nounced under  an  authority  so  broad  and  gen- 
eral ought  to  be  so  far  out  of  proportion  to  the 
offense  committed  as  to  shock  the  sense  of  jus- 
tice before  it  is  arrested  as  contrary  to  usage. 
If  it  bear  a  general  relation  to  the  crime,  and  be 
not  entirely  outside  the  circle  of  naval  pun- 
ishments, any  interference  with  it  on  that 
ground  could  hardly  be  justified.  (10  Op. 
Atty.  Gen.,  158.) 
Section  16  of  an  act  approved  July  17,  1862  (12 
Stat.,  596),  provided  that  any  contractor  for 
supplies  for  the  Army  or  Navy  found  guilty  by 
com-t-martial  of  fraud  or  willful  neglect  of  duty 
"shall  be  punished  by  fine  and  imprisonment, 
or  such  other  punishment  as  the  court-martial 
shall  adjudge";  and  that  any  person  contract- 
ing to  furnish  such  supplies  "shall  be  deemed 
and  taken  as  a  part  of  the  land  or  naval  forces 
of  the  United  States,  for  which  he  shall  contract 
to  furnish  said  supplies,  and  be  subject  to  the 
rules  and  regulations  for  the  government  of  the 
land  and  naval  forces  of  the  United  States. " 
A  contractor  was  sentenced  by  a  naval  general 
court-martial  under  this  section  to  "be  here- 
after excluded  from  any  further  deliveries, 
either  on  contract  or  open  purchase,  for  naval 
supplies. "  Held,  that  such  sentence  was  un- 
warranted bv  the  usage  of  the  service,  and  was 
therefore  illegal.  (12  Op.  Atty.  Gen.,  528. 
See  note  under  preamble  to  section  1624,  R.  S., 
as  to  contractors  not  being  amenable  to  court- 
martial.) 

The  discretion  given  the  court-martial  in  the 
matter  of  iniUcting  punishment  upon  convic- 
tion is  to  be  imderstood  as  controlled  by  the 
custom  of  the  ser\T.ce  and  limited  to  the  im- 
position of  that  kind  of  punishment  only  which 
has  become  usual.  A  sentence  of  incapacity 
or  disability  does  not  fall  within  the  range  of 
discretionary  punishments  allowable  by  the 
usage  of  the  ser\dce,  and  is  not  within  the  power 
of  a  court-martial  except  where  expressly 
authorized  by  law.     (12  Op.  Atty.  Gen.,  528.) 

Not  decided  whether  the  confinement  of  the 
accused  for  a  long  term  in  a  prison  of  narrow 
cells  and  limited  appliances  for  comfort  would 
be  a  punishment  which  the  law  regards  as  cruel 
and  unusual,  and  forbidden  by  the  Constitu- 
tion, because  the  suggestion  as  to  the  character 
of  the  prison  is  unsupported  by  anything  in  the 
record,  and  no  point  of  the  kind  was  made  at 
the  argument  in  this  court.  (Johnson  v.  Sayre, 
158  U.  S.,  109,  116.) 

Imprisonment  until  pajmaent  of  fine. — 
The  sentence  of  a  court-martial  that  the  accused 
"be  imprisoned  in  such  place  as  the  honorable 
Secretary  of  the  Navy  may  designate  for  the 
term  of  two  years;  to  lose  all  pay  which  may 
become  due  him  during  such  confinement, 
except  the  sum  of  ten  dollars  per  month,  this 


loss  amounting  to  one  thousand  nine  hundred 


1063 


Sec.  1624,  Art.  63. 


Pt.  2.  REVISED  STATUTES. 


The  Navy. 


and  sixty-six  dollars;  to  be  fined  in  the  sum  of 
five  hundred  dollars,  which  fine  must  be  paid 
before  or  at  the  end  of  the  term  of  confinement; 
to  be  detained  iu  coiilinenicnt  without  pay 
until  such  fine  be  paid,  and  at  the  expiration 
of  term  of  confinement  to  be  dishonorably  dis- 
charged from  the  naval  service  of  the  United 
States,"  which  sentence  was  adjudged  by  the 
court  on  revision  of  its  original  sentence  in  the 
case,  held  not  illegal.  (In  re  Reed,  20  Fed. 
Cas.  No.  11636;  affirmed,  ex  parte  Reed,  100  U. 
S.,  13.) 

Imprisonment  beyond  term  of  enlist- 
ment.— The  President  having  fixed  a  term  of 
10  years  as  the  maximum  of  imprisonment  in 
cases  prosecuted  under  the  62d  article  of  war 
(corresponding  to  art.  22,  A.  G.  N.),  as  author- 
ized by  Congress,  a  court-martial  on  convicting 
a  soldier  of  conduct  prejudicial  to  good  order 
and  military  discipline  in  violation  of  such 
article  had  j urisdictioti  to  sentence  accused  to 
a  term  of  five  years'  imprisonment,  though  such 
term  extended  beyond  the  term  of  military 
serWce  for  which  he  had  enlisted.  (In  re 
Stubbs,  133  Fed.  Rep.,  1012;  see  note  to  pre- 
amble of  sec.  1624,  R.  S.,  under  "Where  juris- 
diction attached  prior  to  discharge.") 

Place  of  imprisonment  designated  by 
reviewing  authority. — There  is  nothing  in 
the  character  of  a  court-martial  which  inher- 
ently precludes  committing  to  the  reviewing 
authority  the  determination  of  the  character  of 
imprisonment  to  be  imposed  within  the  pre- 
scribed limits.  There  is  no  statute  which  pre- 
vents the  adoption  of  a  rule  or  regulation  com- 
mitting the  matter  to  the  reviewing  authority 
for  determination  of  the  place  of  imprisonment. 
(In  re  Brodie,  128  Fed.  Rep.,  665,  668.) 

Where  the  judgment  of  a  court-martial  di- 
rected the  kind  and  duration  of  his  imprison- 
ment, the  place  of  his  confinement  may  be  later 
designated  by  the  War  Department  and  such 
designation  on  the  commitment  papers  will  be 
presumed  to  have  been  lawfully  made.  (Ex 
parte  Givins,  262  Fed  Rep.,  702;  affirmed, 
Givens  v.  Zerbst,  255  U.  S.,  11.) 

Regulations  as  to  imprisonment;  effect 
of  footnote. — A  manual  issued  by  the  Secre- 
tary of  War  providing  in  a  footnote  that  in  cer- 
tain cases  the  words  "in  such  place  as  the  re- 
viewing authority  may  direct,  "  were  to  be  used 
in  the  sentence  of  a  court-martial  with  reference 
to  the  place  of  confinement,  operated  to  qualify 
Army  Regulations  issued  by  the  Secretary  of 
War  with  the  approval  of  the  President.  A 
footnote  to  a  rule  or  regulation  is  not  less  author- 
itative than  the  principal  text,  where  there  is  a 
single  authorship.  Accordingly,  where  the 
sentence  in  a  proper  case  is  in  the  form  above 
quoted,  such  sentence  is  conclusive  and  not 
open  to  collateral  attack.  (In  re  Brodie,  128 
Fed.  Rep.,  665.) 

Stoppage  of  pay. — The  amount  of  the  re- 
ward paid  for  the  apprehension  of  a  deserter 
who,  upon  trial  by  a  court-martial  for  deser- 
tion, has  been  convicted  only  of  the  offense  of 
absence  without  leave,  can  not  lawfully  be 
stopped  against  his  pay  in  a  case  where  the  sen- 
tence of  the  court  does  not  impose  such  stoppage. 


Stoppage  of  pay  against  a  soldier  is  unauthor- 
ized unless  made  in  execution  of  the  sentence 
of  a  court-martial  or  in  pursuance  of  a  statute 
or  in  conformity  to  a  regulation  having  the  force 
of  law.  (16  Op.  Atty.  Gen.,  474;  see  notes  to 
sees.  1556  and  1569,  R.  S.) 

Certainty  required.^ — A  sentence  which 
declares  "all  pay  and  allowances  now  due  or 
that  may  hereafter  become  due,"  to  be  for- 
feited, except  certain  amounts  specially  named 
fixes  the  amount  of  pay  forfeited  sufficiently 
within  the  intent  of  the  Navy  Regulations  of 
1870  (sec.  248),  requiring  that  sentences  in- 
cluding forfeiture  of  pay  "fix  the  amount  of 
the  pay  so  forfeited,  stating  it  in  dollars  and 
cents."    (WilUamsi).  U.  S.,_24  Ct.  Cls.,  306.) 

Judgments,  whether  of  civil  or  military  tri- 
bunals, should  embrace  the  highest  degree  of 
certainty, ' '  certainty  to  a  certain  intent  in  every 
particular. "  It  is  a  sound  maxim  of  the  law 
that  "that  is  sufficiently  certain  which  can  be 
made  certain."  The  sum  to  be  forfeited,  al- 
though not  fixed  by  the  sentence,  could  be  de- 
termined with  accuracy  by  reference  to  other 
reliable  data.  To  hold  that  the  sentence  was 
void  for  uncertainty,  because  the  amount  is 
not  stated  on  the  face  of  the  sentence,  would  be 
a  technical  requirement  not  warranted.  The 
objection  being  matter  of  form  only,  it  does  not 
vitiate  the  sentence  as  a  judicial  finding. 
(Williams  v.  U.S.,  24  Ct.  Cls.,  306.) 

"Cashiered"  and  "dismissed"  con- 
strued.— See  note  to  article  46,  A.  G.  N. 

Dismissal  mandatory. — See  act  of  April  9, 
1906,  section  5  (34  Stat.,  105),  as  to  certain 
offenses  of  neglect  of  duty  by  officers  of  the 
Naval  Academy. 

Coast  Guard;  limitation  of  punish- 
ments.— "Whenever,  in  time  of  war,  the 
Coast  Guard  operates  as  a  part  of  the  Navy  in 
accordance  with  law,  the  personnel  of  that 
service  shall  be  subject  to  the  laws  prescribed 
for  the  government  of  the  Navy:  Provided, 
That  in  the  initiation,  prosecution,  and  comple- 
tion of  disciplinary  action,  including  remis- 
sion and  mitigation  of  punishments  for  any 
offense  committed  by  any  officer  or  enlisted 
man  of  the  Coast  Guard,  the  jurisdiction  shall 
hereafter  depend  upon  and  be  in  accordance 
with  the  laws  and  regulations  of  the  depart- 
ment having  jurisdiction  of  the  person  of  such 
offender  at  the  various  stages  of  such  action: 
Provided  further,  That  any  punishment  im- 
posed and  executed  in  accordance  with  the 
provisions  of  this  section  shall  not  exceed  that 
to  which  the  offender  was  liable  at  the  time  of 
the  commission  of  his  offense."  (Act  Aug.  29, 
1916,  39  Stat.,  600.) 

For  other  cases  see  notes  to  articles  7,  8,  14, 
and  48,  A.  G.  N. 

Perjury. — As  to  punishment  for,  see  article 
42,  A.  G.  N. 

Limitations  of  punishment  prescribed 
by  the  President,  as  modified  from  time  to 
time,  are  published  in  "Naval  Courts  and 
Boards,"  issued  by  the  Navy  Department, 
office  of  the  Judge  Advocate  General  of  the 
Navy. 


1064 


TITLE  XIX. 
PEOVISIONS    APPLICABLE    TO    SEVERAL    CLASSES    OF    OFFICERS. 


Sec. 

1754.  Preference  of  persons  disabled  in  mili- 

tary or  naval  service. 

1755.  Recommendation    for    employment    in 

private  industries. 

1757.  Oath  of  office. 

1758.  "t^Tio  may  administer  oath. 

1759.  Custody  of  oath. 

1760.  Unauthorized  office;  no  salan^'  for. 

1761.  Salaries;  recess  appointments. 

1763.  Double  salaries. 

1764.  Extra  ser^•ices. 


Sec. 

1765.  Extra  allowances. 

1766.  Ofiicer  in  arrears;  withholding  pay. 

1773.  Commissions. 

1774.  Recess  appointments;  accounting  officers 

notified. 

1778.  Oaths  or  acknowledgments;  before  whom 

taken. 

1779.  Newspapers,  books,  etc.;  restriction  upon 

purchase. 
1784.  Contributions,    presents,   etc.,   to    supe- 
riors. 


Sec.  1754.  [Preference  of  persons  disabled  in  military  or  naval  service.] 
Persons  honorably  discharged  from  the  military  or  naval  service  by  reason  of 
disability  resulting  from  wounds  or  sickness  incurred  in  the  line  of  duty,  shall 
be  preferred  for  appointments  to  civil  offices,  provided  they  are  found  to  possess 
the  business  capacity  necessary  for  the  proper  discharge  of  the  duties  of  such 
offices.— (3  Mar.,  1865,  Res.  No.  27,  s.  1,  v.  13,  p.  571.) 

See  laws  and  decisions  noted  under  section 416,  Revised  Statutes,  subheading,  "Honorably 
discharged  soldiers  or  sailors. " 

Sec.  1755.  [Recommendation  for  employment  in  private  industries.]  In 
grateful  recognition  of  the  services,  sacrifices,  and  sufferings  of  persons  honor- 
ably discharged  from  the  militar}^  and  naval  service  of  the  country,  by  reason 
of  wounds,  disease,  or  the  expiration  of  terms  of  enlistment,  it  is  respectfully 
recommended  to  bankers,  merchants,  manufacturers,  mechanics,  farmers,  and 
persons  engaged  in  industrial  pursuits,  to  give  them  the  preference  for  appoint- 
ments to  remunerative  situations  and  employments. —  (3  Mar.,  1865,  Res.  No. 
27,  s.  2,  V.  13,  p.  571.) 

Sec.  1757.  [Oath  of  office.]  Whenever  any  person  who  is  not  rendered  ineli- 
gible to  office  by  the  provisions  of  the  fourteenth  amendment  to  the  Consti- 
tution is  elected  or  appointed  to  any  office  of  honor  or  trust  under  the  Govern- 
ment of  the  United  States,  and  is  not  able,  on  account  of  his  participation  in 
the  late  rebellion,  to  take  the  oath  prescribed  in  the  preceding  section,  he  shall, 
before  entering  upon  the  duties  of  his  office,  take  and  subscribe  in  lieu  of  that 
oath  the  following  oath:  "I,  A  B,  do  solemnly  swear  (or  affirm)  that  I  will 
support  and  defend  the  Constitution  of  the  United  States  against  all  enemies, 
foreign  and  domestic;  that  I  will  bear  true  faith  and  allegiance  to  the  same, 
that  I  take  this  obligation  freely,  without  any  mental  reservation  or  purpose  of 
evasion ;  and  that  I  will  well  and  faithfully  discharge  the  duties  of  the  office  on 
which  I  am  about  to  enter.  So  help  me  God." — (11  July,  1868,  c.  139,  v.  15, 
p.  85.     15  Feb.,  1871,  c.  53,  v.  16,  p.  412.) 


1065 


Sec.  1763.  Pt.2.  REVISED  STATUTES.  PubUc  Officers. 


Amendment  to  this  section  was  made  by  act  of 
May  13,  1884,  section  2  (23  Stat.,  22),  as 
follows:  "Section  seventeen  hundred  and 
fifty -six  of  the  RcA^sod  Statutes  be,  and  the 
same  is  hereby,  repealed;  and  hereafter  the 
oath  to  be  taken  by  any  person  elected  or 
appointed  to  any  office  of  honor  or  profit 
either  in  the  civil,  military,  or  naval  serv- 
ice, except  the  President  of  the  United 
States,  shall  be  as  prescribed  in  section 
seventeen  hundred  and  fifty-seven  of  the 
Ile\"ised  Statutes.  But  this  repeal  shall 
not  affect  the  oaths  prescribed  by  existing 
statutes  in  relation  to  the  performance  of 
duties  in  special  or  particular  subordinate 
offices  and  employments. " 


As  to  special  oath  prescribed  for  employees  in 
the  postal  service,  and  which  is  also  re- 
required  by  law  to  bo  taken  by  Navy  mail 
clerks  and  assistant  Navy  mail  clerks,  see 
sections  391  and  392,  Revised  Statutes,  and 
notes  thereto. 

As  to  oath  of  allegiance  required  to  be  taken  by 
enlisted  men  of  the  Navy  and  Marine 
Corps,  see  notes  to  sections  1418  and  1609, 
Revised  Statutes. 

As  to  commencement  of  pay  of  officers  ap- 
pointed to  the  Navy,  see  section  1560  and 
note  to  section  1383,  Revised  Statutes. 

As  to  oath  of  allegiance  required  to  be  taken  by 
persons  prosecuting  claims,  see  sections 
3478  and  3479,  Revised  Statutes. 


Sec.  1758.  [Who  may  administer  oath.]  The  oath  of  office  required  by  either 
of  the  two  preceding  sections  may  be  taken  before  any  officer  who  is  authorized 
either  by  the  laws  of  the  United  States,  or  by  the  local  municipal  law,  to 
administer  oaths,  in  the  State,  Territory,  or  District  where  such  oath  may  be 
admmistered.— (6  Aug.,  1861,  c.  64,  s.  2,  v.  12,  p.  326.  18  April,  1876,  c. 
66,  V.  19,  p.  34.) 

See  note  to  section  416,  Revised  Statutes,  under  "  Oath  of  office";  see  also  sections  183  and  392, 
Revised  Statutes,  and  note  thereto. 

Sec.  1759.  [Custody  of  oath.] — The  oath  of  office  taken  by  any  person 
pursuant  to  the  requirements  of  section  seventeen  hundred  and  fifty-six,  or  of 
section  seventeen  hundred  and  fifty-seven,  shall  be  delivered  in  by  him  to  be 
preserved  among  the  files  of  the  House  of  Congress,  Department,  or  court  to 
which  the  office  in  respect  to  which  the  oath  is  made  may  appertain. —  (2  July, 
1862,  c.  128,  V.  12,  p.  502.) 

Section  1756,  Revised  Statutes,  referred  to  in  this  section,  was  repealed  by  act  of  May  13, 
1884;  quoted  above,  under  section  1757. 

Sec.  1760.  [Unauthorized  office ;  no  salary  for.]  No  money  shall  be  paid  from 
the  Treasury  to  any  person  acting  or  assuming  to  act  as  an  officer,  civil,  military, 
or  naval,  as  salary,  in  any  ofiice  when  the  office  is  not  authorized  by  some  pre- 
viously existing  law,  unless  such  office  is  subsequently  sanctioned  by  law. — 
(9  Feb.,  1863,  c.  25,  s.  2,  v.  12,  p.  646.) 

Sec.  1761.  [Salaries;  recess  appointments.]  No  money  shall  be  paid  from 
the  Treasury,  as  salary,  to  any  person  appointed  during  the  recess  of  the  Senate, 
to  fill  a  vacancy  in  any  existing  office,  if  the  vacancy  existed  while  the  Senate 
was  in  session  and  was  by  law  required  to  be  filled  by  and  with  the  advice  and 
consent  of  the  Senate,  until  such  appointee  has  been  confirmed  by  the  Senate. 
(9  Feb.,  1863,  c.  25,  s.  2,  v.  12,  p.  646.) 

See  note  to  Constitution,  Article  II,  section  2,  clause  3. 

Sec.  1763.  [Double  salaries.]  No  person  who  holds  an  office,  the  salary  or 
annual  compensation  attached  to  which  amounts  to  the  sum  of  two  thousand 
five  hundred  dollars,  shall  receive  compensation  for  discharging  the  duties  of 
any  other  office,  unless  expressly  authorized  by  law. — (31  Aug.,  1852,  c.  108,  s. 
18,  V.  10,  p.  100.  20  June,  1874,  c.  328,  v.  18,  p.  109.— Talbot's  Case,  10  C.  Cls. 
426.) 


Other  laws  on  the  same  general  subject 
as  this  section  and  sections  1764  and  1765,  set 
forth  below,  are  the  following: 


Act  June  20,  J 874,  section  3  (18  Stat.,  109): 
"  No  civil  officer  of  the  Government  shall  here- 
after receive  any  compensation  or  perquisites, 


1066 


Public  Officers. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1766. 


directly  or  indirectly,  from  the  Treasury  or 
property  of  the  United  States  beyond  his  salary 
or  compensation  allowed  by  law:  Provided, 
That  this  shall  not  be  construed  to  prevent  the 
employment  and  payment  by  the  Department 
of  Justice  of  district  attorneys  as  now  allowed 
by  law  for  the  performance  of  ser\dces  not  cov- 
ered by  their  salaries  or  fees. ' ' 

Act  July  31,  1894,  section  2  (28  Stat.,  205): 
"No  person  who  holds  an  office  the  salary  or 
annual  compensation  attached  to  which 
amounts  to  the  sum  of  two  thousand  five  hun- 
dred dollars  shall  be  appointed  to  or  hold  any 
other  office  to  which  compensation  is  attached 
unless  specially  heretofore  or  hereafter  specially 
authorized  thereto  by  law;  but  this  shall  not 
apply  to  retired  officers  of  the  Army  or  Navy 
whenever  they  may  be  elected  to  public  office 
or  whenever  the  President  shall  appoint  them 
to  office  by  and  with  the  advice  and  consent 
of  the  Senate." 

Act  June  3,  1896,  section  7  (29  Stat.,  235): 
"That  section  two  of  the  act  making  appro- 
priations for  the  legislative,  executive,  and 
judicial  expenses  of  the  Government  for  the 
fiscal  year  ending  June  thirtieth,  eighteen 
hundred  and  ninety-five,  and  for  other  pur- 
poses, approved  July  thirty-first,  eighteen  hun- 
dred and  ninety-four,  shall  not  be  so  construed 
as  to  prevent  the  employment  of  any  retired 
officer  of  the  Army  or  Navy  to  do  work  under 
the  direction  of  the  Chief  of  Engineers  of  the 
United  States  Army  in  connection  with  the 
improvement  of  rivers  and  harbors  of  the 
United  States,  or  the  payment  by  the  proper 
officer  of  the  Treasury  of  any  amounts  agreed 
upon  as  compensation  for  such  employment." 

Act  August  1, 1914,  section  12  (38  Stat.,  680): 
"  It  shall  not  be  lawful  to  pay  to  any  person, 
employed  in  the  service  of  the  United  States 
under  any  general  or  lump  sum  appropriation, 
any  sum  additional  to  the  regular  compensation 
received  for  or  attached  to  any  employment 
held  prior  to  an  appointment  or  designation  as 
acting  for  or  instead  of  an  occupant  of  any 


other  office  or  employment.  This  provision 
shall  not  be  construed  as  prohibiting  regular 
and  permanent  appointments  by  promotion 
from  lower  to  higher  grades  of  employments. ' ' 

Act  May  10,  1916,  section  6  (39  Stat.,  120),  as 
reenacted  with  amendments  by  act  August  29, 
1916  (39  Stat.,  582):  "That  unless  otherwise 
specially  authorized  by  law,  no  money  appro- 
priated by  this  or  any  other  act  shall  be  avail- 
able for  payment  to  any  person  receiving  more 
than  one  salary  when  the  combined  amount  of 
said  salaries  exceeds  the  sum  of  $2,000  per 
annum,  but  this  shall  not  apply  to  retired  offi- 
cers or  enlisted  men  of  the  Army,  Navy,  Marine 
Corps,  or  Coast  Guard,  or  to  officers  and  enlisted 
naen  of  the  Organized  Militia  and  Naval  Militia 
in  the  several  States,  Territories,  and  the  Dis- 
trict of  Columbia:  Provided,  That  no  such 
retired  officer,  officer,  or  enlisted  man  shall  be 
denied  or  deprived  of  any  of  his  pay,  salary,  or 
compensation  as  such,  or  of  aay  other  salary  or 
compensation  for  services  heretofore  rendered, 
by  reason  of  any  decision  or  construction  of 
said  section  six." 

Act  March  3,  1917  {39  Stat.,  1106):  Restricts 
payments  to  Government  officers  by  private 
parties. 

See  section  1440,  Revised  Statutes,  as  to  ap- 
pointment of  Navy  officers  in  the  diplo- 
matic or  consular  service;    section  1860, 
Revised  Statutes,   as  to  naval  personnel 
holding  civil  offices  in  territories;   and  act 
June  10,  1896  (29  Stat.,  361),  as  to  officers 
of  the  Navy  or  Marine  Corps  holding  em- 
ployment with  contractors  furnishing  naval 
supplies  or  war  material  to  the  Govern- 
ment. 
See  sections  170  and  182,  Revised  Statutes,  and 
notes  thereto,    restricting   extra   compen- 
sation to  clerks  and  officers  in  the  executive 
departments. 
See  note  to  section  1765,  Revised  Stat- 
utes, for  interpretation  of  sections  1763-1765, 
Revised  Statutes,  and  laws  above  quoted. 


Sec.  1764  [Extra  services.]  No  allowance  or  compensation  shall  be  made 
to  any  officer  or  clerk,  by  reason  of  the  discharge  of  duties  which  belong  to 
any  other  officer  or  clerk  in  the  same  or  any  other  Department;  and  no  allow- 
ance or  compensation  shall  be  made  for  any  extra  services  whatever,  which 
any  officer  or  clerk  may  be  required  to  perform,  unless  expressly  authorized 
by  law.— (26  Aug.,  1842,  c.  202,  s.  12,  v.  5,  p.  525.) 

See  later  enactments  quoted  above,  under  section  1763,  Revised  Statutes;  and  see  decisions 
noted  below,  under  section  1765. 

Sec.  1765.  [Extra  allowances.]  No  officer  in  any  branch  of  the  public  service 
or  any  other  person  whose  salary,  pay,  or  emoluments  are  fixed  by  law  or  regu- 
lations, shall  receive  any  additional  pay,  extra  allowance,  or  compensation,  in 
any  form  whatever,  for  the  disbursement  of  public  money,  or  for  any  other 
service  of  duty  whatever,  unless  the  same  is  authorized  by  law,  and  the  appro- 
priation therefor  explicitly  states  that  it  is  for  such  additional  pay,  extra 
allowance,  or  compensation. —  (3  Mar.,  1839,  c.  82,  s.  3,  v.  5,  p.  349.  23  Aug., 
1842,  c.  183,  s.  2,  v.  5,  p.  510.     1  May,  1876,  c.  88,  v.  19,  y.  45.) 


54641"— 22- 


-68 


1067 


Sec.  1765. 


PL  2.  REVISED  STATUTES. 


Public  Officers. 


See  other  enactments  quoted  above,  under  sec- 
tion 1763,  Revised  Statutes. 
Cash  rewards   to  civil    employees  of    Navy 
Department  are  authorized  by  act  of  July 
1,  1918  (40  Stat.,  718.) 

Legality  of  officers  accepting  civil  ap- 
pointments.— The  legality  of  a  retired  officer 
of  the  Navy  accepting  ci^il  office  is  a  question 
which  must  be  determined  by  such  officer  upon 
has  own  responsibility;  as  the  Government  does 
not  become  interested  in  the  matter  until  an 
office  has  actually  been  accepted  contrary  to  law. 
(File  9736-15,  Mar.  28,  1910;  9736-18,  June  25, 
1910;  21  Op.  Atty.  Gen.,  510.  See  note  to  sec. 
1440,  R.  S.) 

Interpretation  of  sections  1763-1765, 
Revised  Statutes. — Taking  these  sections 
all  together,  held,  that  the  purpose  of  the  legis- 
lation was  to  prevent  a  person  holding  any 
office  or  appointment,  for  which  the  law  pro- 
\ide8  a  definite  compensation  by  way  of  salary 
or  otherwise,  which  is  intended  to  cover  all  the 
services  which,  as  such  officer,  he  may  be  called 
upon  to  render,  from  recei\ing  extra  compen- 
sation, additional  allowances,  or  pay  for  other 
servdces  which  may  be  required  of  him  either 
by  act  of  Congress  or  by  order  of  the  head  of  his 
department,  or  in  any  other  mode,  added  to  or 
connected  with  the  regular  duties  of  the  place 
which  he  holds;  but  these  sections  have  no 
application  to  the  case  of  two  distinct  offices, 
places,  or  employments,  each  of  which  has  its 
own  duties  and  its  own  compensation,  which 
offices  may  both  be  held  by  one  person  at  the 
same  time.  In  the  latter  case,  he  is  in  the  eye 
of  the  law  two  officers,  or  holds  two  places  or 
appointments,  the  functions  of  which  are  sep- 
arate and  distinct,  and,  according  to  all  the 
decisions,  he  is  in  such  case  entitled  to  recover 
the  two  compensations.  In  the  former  case, 
he  performs  the  added  duties  under  his  appoint- 
ment to  a  single  place,  and  the  statute  has  pro- 
vided that  he  shall  receive  no  additional  com- 
pensation for  that  class  of  duties  unless  it  is  so 
provided  by  special  legislation.  (U.  S.  v. 
Saunders,  120  U.  S.,  126;  see  also  Mullett  v.  U. 
S.,  150  U.  S.,  566;  but  see  act  July  31,  1894, 
quoted  above  under  sec.  1763,  R.  S.) 

The  legislature  contemplated  duties  imposed 
by  superior  authority  upon  the  officer  as  a  part 
of  his  duty,  and  which  the  superior  authority 
had  in  the  emergency  a  right  to  impose,  and  the 
officer  was  bound  to  obey,  although  they  were 
extra  and  additional  to  what  had  pre\dously 
been  required.  But  this  legislation  can  by  no 
fair  interpretation  be  held  to  embrace  an  em- 
ployment which  has  no  affinity  or  connection, 
either  in  its  character  or  by  law  or  usage,  with 
the  line  of  his  official  duty,  and  where  the 
Ber\dce  to  be  performed  is  of  a  different  charac- 
ter and  for  a  different  place,  and  the  amount  of 
compensation  regulated  by  law.  (Converse  v. 
U.  S.,  21  How.,  463.) 

A  receiver  of  public  moneys  in  Kansas,  who 
had  been  appointed  agent  for  the  sale  of  Indian 
trust  lands  under  a  treaty  with  an  Indian  tribe, 
was  entitled  to  commissions  on  such  sales  in 
addition  to  the  full  compensation  as  receiver 
allowed  him  by  law.  While  the  exact  amount 
of  his  compensation  was  not  fixed,  it  was  clearly 
inferred  that  such  compensation  as  the  law  im- 
plies where  labor  is  performed  by  one  at  the  re- 
request  of  another,  that  is  to  say,  a  reasonable 


compensation,    would    be    paid.     (U.    S.    v. 
Brindle,  llOU.  S.,688.) 

The  case  of  United  States  v.  Brindle,  in  which 
an  Indian  agent  received  large  additional  com- 
pensation for  ser\dce3  connected  with  the  sale 
of  lands  belonging  to  the  Indians  of  his  agency, 
was  upon  the  ground  that  these  additional 
services  were  performed  for  the  benefit  of  the 
Indians,  and  the  statute  implied  the  payment 
of  reasonable  compensation  for  such  services. 
(U.  S.  V.  Saunders,  120  U.  S.,  126.) 

A  retired  officer  of  the  Army  appointed  by  the 
Secretary  of  the  Interior  as  supervisor  of  the 
erection  of  the  Pension  Bureau  building  was 
entitled  to  compensation  for  such  services  in 
addition  to  his  pay.  Sections  1764  and  1765, 
Re\'ised  Statutes,  do  not  preclude  an  officer 
from  receiving  compensation  other  than  his 
salarjr  for  services  rendered  the  Government  in 
an  employment  which  has  no  affinity  or  con- 
nection with  his  official  duty.  (Meigs  v.  U.  S., 
19Ct.  Cls.,  497.) 

The  only  difference  between  this  case  and 
those  decided  by  the  Supreme  Court  (Converse 
V.  U.  S.  and  U.  S.  v.  Brindle,  above  cited)  is 
that  in  each  of  the  latter  cases  the  party  held 
an  office  with  active  duties  to  be  performed, 
while  the  present  claimant  held  one  with  no 
such  duties,  but  this  does  not  appear  to  affect 
the  result.  The  point  in  each  of  them  was, 
whether  the  party  was  entitled  to  compensa- 
tion for  services  rendered  in  an  employment 
which  had  no  affinity  or  connection  with  the 
line  of  his  official  duty;  and  the  Supreme  Court 
held  that  he  was.  This  disposes  of  the  objec- 
tions raised  against  the  claimant's  demand  in 
this  case.    (Meigs  v.  U.  S.,  19  Ct.  Cls.,  497.) 

A  retired  Army  officer  may  be  employed  by 
the  War  Department  to  supervise  work,  where 
he  could  not  have  been  assigned  to  that  duty 
by  order  of  the  Secretary  of  War,  and  sections 
1763,  1764,  and  1765,  Revised  Statutes,  relating 
to  double  pay,  do  not  apply  to  such  a  case. 
(Yates  V.  U.  S.,  25  Ct.  Cls.,  296.) 

An  officer  who  has  been  appointed  to  and  is 
fully  invested  with  two  distinct  offices  may 
receive  the  compensation  appropriated  for  each. 
Sections  1763-1765,  Revised  Statutes,  do  not 
apply  to  such  a  case.    (16  Op.  Atty.  Gen.,  7.) 

The  construction  which  has  been  given  to 
these  sections,  especially  in  the  case  of  Con- 
verse V.  United  States  (above  noted),  is  that 
the  intent  and  effect  of  them  are  to  forbid  offi- 
cers holding  one  office  from  receiving  compen- 
sation for  the  discharge  of  duties  belonging  to 
another,  or  additional  pay,  extra  allowance,  or 
compensation  for  such  other  services  or  duties, 
when  they  hold  the  commission  of  but  a  single 
office,  and  by  virtue  of  that  office,  or  in  addi- 
tion to  the  duties  thereof,  have  assigned  to 
them  the  duties  of  another  office.  According 
to  that  decision,  however,  if  an  officer^  holds 
two  distinct  commissions,  and  thus  two  distinct 
offices,  he  may  receive  a  salary  for  each.  The 
evil  intended  to  be  guarded  against  by  these 
statutes  was  not  so  much  plurality  of  offices  as 
it  was  additional  pay  or  compensation  to  an 
officer  holding  but  one  office  for  performing 
additional  duties  or  the  duties  properly  belong- 
ing to  another.  If  he  actually  holds  two  com- 
missions, and  does  the  duties  of  two  distinct 
offices,  he  may  receive  the  salary  which  has 
been   appropriated    to   each   office.    Sections 


1068 


Public  Officers. 


PL  2.  REVISED  STATUTES. 


Sec.  1765 


1763-1765  are  condensations  from  statutes 
which  were  in  existence  at  the  time  this  deci- 
sion was  made  and  in  conformity  with  it.  (16 
Op.  Atty.  Gen.,  7;  see  also  12  Op.  Atty.  Gen., 
459.) 

Holding'  two  incompatible  offices.- — It  has 
been  regarded  as  settled  since  the  decision  of 
the  Supreme  Court  in  United  States  v.  Saun- 
ders (above  noted)  that  a  person  may  hold  two 
offices  and  receive  the  salaries  of  both,  not- 
\vithstanding  the  provisions  of  the  Revised 
Statutes,  pro\'ided  they  are  distinct,  each  hav- 
ing its  o^vn  duties  and  compensation,  and  are 
not  incompatible.  In  this  case  the  offices  are 
distinct,  and  each  has  its  own  duties  and 
compensation.  The  only  question  presented, 
therefore,  is  whether  they  are  incompatible. 
(Crosthwaite  v.  U.  S.,  30  Ct.  Cls.,  300.) 

Two  offices  are  incompatible  when  a  per- 
formance of  the  duties  of  the  one  will  prevent 
or  conflict  with  a  performance  of  the  duties  of 
the  other,  or  when  the  holding  of  the  two  offices 
is  contrary  to  the  policy  of  the  law.  (Cros- 
thwaite v.  U.  S.,  30  Ct.  Cls.,  300.) 

The  duties  of  an  examiner  in  the  Department 
of  Justice  and  of  special  assistant  attorneys  ap- 
pointed to  assist  in  the  prosecution  of  criminal 
business  are  distinct  and  different  and  are  not 
incompatible.  (Crosthwaite  v.  U.  S.,  30  Ct. 
Cls.,  300.) 

Where  two  incompatible  offices  are  held  by 
the  same  persoUj  to  which  are  attached  differ- 
ent salaries,  he  is  not  entitled  to  the  compen- 
sation of  both,  but  is  entitled  to  the  larger  of 
the  two.  (Webster  v.  U.  S.,  28  Ct.  Cls.,  25; 
Winchell  v.  U.  S.,  28  Ct.  Cls.,  30.) 

The  offices  of  engineer  in  the  Navy  and  pay- 
master are  incompatible.  (Webster  v.  U.  S., 
28  Ct.  Cls.,  25.) 

A  cadet  engineer  in  the  Navy  is  not  entitled 
to  the  salary  of  a  draftsman  in  the  Hydro- 
graphic  Office  in  addition  to  his  own,  though 
he  hold  both  offices.  The  office  of  draftsman 
in  the  Hydrographic  Office  is  incompatible 
with  that  of  cadet  engineer.  The  Secretary  of 
the  Navy  may  detail  a  cadet  engineer  for  serv- 
ice in  the  Hydrographic  Office,  but  the  detail 
will  not  entitle  the  officer  to  additional  pay. 
(Winchell  v.  U.  S.,  28  Ct.  Cls.,  30.) 

The  duties  or  nonduties  of  a  retired  officer  are 
not  incompatible  with  the  duties  of  a  chief 
clerk  in  an  executive  department.  The  duties 
of  an  officer  beyond  seas  would  be  incompatible 
with  those  of  a  retired  officer  liable  to  be  called 
at  any  time  into  active  service.  Congress  have 
recognized  the  distinction  by  providing  that  a 
retired  officer  shall  not  receive  his  pay  as  such 
while  holding  a  diplomatic  or  consular  office 
beyond  seas,  but  have  left  the  right  of  a  retired 
officer  to  hold  a  civil  office  within  the  country 
unimpaired.     (Geddes  d.U.  S.,38Ct.  Cls.,446.) 

Incompatibility  exists  where  the  nature  and 
duty  of  the  two  offices  are  such  as  to  render  it 
improper,  from  considerations  of  public  policy, 
for  one  incumbent  to  hold  both.  It  does  not 
necessarily  arise  when  the  incumbent  places 
himself  for  the  time  being  in  a  position  where 
it  may  be  impossible  for  him  to  discharge  the 
duties  of  both  offices.  (22  Op.  Atty.  Gen.,  238, 
citing  cases.) 

A  retired  officer  of  the  Army  is  not  prohibited 
by  law  from  holding  an  office  in  an  executive 


department,  nor  from  recei\'ing  the  salary 
thereof  in  addition  to  his  retired  pay.  (Col- 
lins V.  U.  S.,  15  Ct.  Cls.,  22.  But  see  below  as 
to  interpretation  of  act  of  July  31,  1894.) 

An  assistant  medical  referee,  appointed  under 
Revised  Statutes,  section  4776,  is  not  entitled, 
in  addition  to  his  salary,  to  the  fees  of  an  ex- 
amining surgeon,  while  8er\'ing  on  an  examin- 
ing board  under  section  4775,  Re\'i8ed  Statutes, 
as  the  duties  of  the  two  positions  are  not  com- 
patible; neither  are  they  distinct  offices. 
Payment  for  both  services  is,  therefore,  pro- 
hibited by  Revised  Statutes,  sections  176.3-1765. 
(Graham  r.  U.  S.,  29  Ct.  Cls.,  404.) 

"Office,"  defined. — See  note  to  Constitu- 
tion, Article  II,  section  2,  clause  2. 

'  'An  office  is  a  public  station,  or  employment, 
conferred  by  the  appointment  of  government. 
The  term  embraces  the  ideas  of  tenure,  dura- 
tion, emolument,  and  duties.  *  *  *  A 
Government  office  is  different  from  a  Govern- 
ment contract.  The  latter  from  its  nature  ia 
necessarily  limited  in  its  duration  and  specific 
in  its  objects.  The  terms  agreed  upon  define 
the  rights  and  obligations  of  both  parties,  and 
neither  may  depart  from  them  without  the 
assent  of  the  other."  (U.  S.  v.  Hartwell,  6 
Wall.,  385,  393;  see  also  U.  S.  v.  Germaine, 
99  U.  S.,  508;  Auffmordt  v.  Hedden,  137  U.  S., 
310,327.) 

Civil  surgeons  appointed  by  the  Commissioner 
of  Pensions,  under  section  4777  of  the  Re\'ised 
Statutes,  are  not  officers  of  the  United  States. 
(U.  S.  V.  Germaine,  99  U.  S.,  508.) 

An  acting  paymaster,  appointed  by  the 
senior  officer  present,  is  not  an  officer.  He  is 
not  appointed  as  required  by  the  Constitution, 
takes  no  oath  of  office,  anci  gives  no  bond  as 
paymaster.  He  is  appointed  to  discharge  the 
duties  of  an  office  which  he  does  not  hold,  that 
of  paymaster,  and  he  is  therefore  prohibited 
from  receiving  compensation  by  sections  1763 
and  1765,  Revised  Statutes.  (Webster  oj.  U.  S., 
28  Ct.  Cls.,  25;  see  note  to  sees.  1381  and  1564, 
R.  S.) 

A  midshipman  appointed  as  acting  master 
may  hold  such  office  in  addition  to  his  regular 
naval  rank,  acting  masters  not  forming  part  of 
the  regular  and  permanent  Navy;  and  if  ap- 
pointed acting  master,  he  is  entitled  to  receive 
the  pay  of  that  grade.  (10  Op.  Atty.  Gen., 
111.) 

An  internal-revenue  collector  is  undoubtedly 
an  officer  in  a  branch  of  the  public  service, 
with  a  salary  fixed  by  law.  (Landram  v.  U.  S., 
16  Ct.  Cls.,  74.) 

''A  deputy  collector  of  internal  revenue,  not 
being  an  employee  of  the  Government  (i.  e., 
not  in  privity  with  it  so  as  to  be  able  to  main- 
tain an  action  for  his  pay),  does  not  come 
within  the  provisions  of  the  Revised  Statutes, 
sections  1763,  1764,  prohibiting  officers  and 
employees  of  the  Government  from  receiving 
dual  or  extra  compensation."  (Landram  v. 
U.  S.,  16  Ct.  Cls.,  74.) 

A  special  deputy  marshal  is  not  a  public 
officer  within  the  constitutional  limitation  as 
to  appointment.     (17  Op.  Atty.  Gen.,  684.) 

The  offices  referred  to  in  the  above  sections 
of  the  Revised  Statutes  are  officers  under  the 
Government  of  the  United  States,  and  an  office 
under  the  government  of  the  District  of  Colum- 


1069 


Sec.  1765. 


Ft.  2.  REVISED  STATUTES. 


Public  Oflacers. 


bia  is  not  included  therein.     (Donovan  v.  U.  S., 
21  Ct.  ('Is.,  120.) 

The  pajTuent  of  Navy  and  privateer  pensions 
under  the  orders  of  the  Secretary  of  the  Navy 
does  not  constitute  the  person  paying  them  an 
officer  of  the  Ignited  States;  and  if  the  person 
thus  disbursing  public  money  at  the  same  time 
holds  the  office  of  Navy  agent  he  can  not  be 
allowed  any  extra  pay  or  emolument  for  mak- 
ing such  disbursement.  (Browne  v.  U.  S.,  4 
Fed.  Cas.  No.  2,0:?G.) 

Interpretation  of  act  approved  July  31, 
1894. — See  note  to  section  1763,  Re\'ised  Stat- 
utes, for  text  of  said  act. 

(^nly  officers  of  the  United  States  were  in  the 
mind  of  Congress  in  1894  when  enacting  the 
pro^'ision  as  to  holding  of  two  offices.  (22 
Op.  Atty.  Gen.,  184,  188.) 

It  would  seem  that  the  word  "office"  in  the 
act  of  1894  is  to  be  presumed,  in  the  absence  of 
indications  to  the  contrar^',  to  embrace  only 
what  are  called  constitutional  officers,  i.  e., 
those  referred  to  in  Article  II,  section  2,  clause 
2  of  the  Constitution.  Under  this  construction, 
a  circuit  judge  of  the  I'nited  States  appointed 
as  a  commissioner  under  a  convention  with 
Great  Britain  is  entitled  to  compensation  ad- 
ditional to  that  of  his  salary,  as  the  commis- 
sionership  was  estal)lished  by  treaty  and  was 
not  an  office  "estal)lished  by  law"  within  the 
meaning  of  the  Constitution.  (22  Op.  Attv. 
Gen.,  184.) 

The  legal  definitions  of  a  public  office  have 
been  many  and  various.  The  idea  seems  to 
prevail  that  it  is  an  employment  to  exercise 
some  delegated  part  of  the  sovereign  power; 
and  the  Supreme  Court  appears  to  attach 
importance  to  the  idea  of  "tenure,  duration, 
emolument,  and  duties, "  and  suggests  that  the 
last  should  be  continuing  or  permanent,  not 
occasional  or  temporary.  (22  Op.  Atty.  Gen., 
184.) 

As  for  the  popular  language,  it  seems  clear 
that  a  person  employed  solely  as  a  sworn  judge 
of  a  joint  international  commission  would  not 
be  spoken  of  as  an  officer  of  either  country, 
although,  under  a  treaty  requiring  it,  selected 
and  sent  to  his  post  bv  one  of  them.  (22  Op. 
Atty.  Gen.,  184.) 

A  general  appraiser  detailed  by  the  Secretary 
of  the  Treasury,  without  additional  compen- 
sation, as  "an  expert  to  represent  the  United 
States  in  the  international  commission  for  the 
conversion  of  the  present  Chinese  tariff  into 
specific  rates, ' '  was  not  appointed  to  another 
office  under  the  Government  or  engaged  in 
other  incompatible  Government  service.  (24 
Op.  Atty.  Gen.,  12.) 

An  office  is  defined  to  be  "  a  public  charge  or 
employment, "  and  he  who  performs  the  duties 
of  the  office  is  an  officer.  If  employed  on  the 
part  of  the  United  States,  he  is  an  officer  of  the 
United  States.  Although  an  office  is  an 
"employment,"  it  does  not  follow  that  every 
employment  is  an  office.  A  man  may  certainly 
be  employed  under  a  contract,  express  or 
implied,  to  do  an  act  or  perform  a  service, 
without  becoming  an  officer.  But  if  a  duty 
be  a  continuing  one,  it  seems  very  difficult  to 
distinguish  such  a  charge  or  employment  from 
an  office,   or    the    person  who    performs  the 


duties  from  an  officer.     (U.  S.  v.  Maurice,  2 
Brock.,  9(J,  quoted  in  24  Op.  Atty.  Gen.,  12.) 

An  appointment  as  special  assistant  to  a 
United  States  attorney  to  aid  in  a  certain  case 
or  set  of  cases  is  not  an  appointment  to  an 
office  within  the  meaning  of  the  act  of  1894, 
as  the  essential  element  of  "duration"  is 
lacking.  The  attornev  for  the  Court  of  Private 
Land  Claims,  receiving  an  annual  salary  of 
$3,500,  may,  therefore,  be  allowed  additional 
compensation  as  special  assistant  to  a  United 
States  attorney  for  New  Mexico.  (2  Comp. 
Dec,  271.) 

A  chief  of  di^dsion  in  the  office  of  the  Super- 
vising Architect  of  the  Treasur\^  at  a  salary  of 
more  than  $2, -500  per  annum  may  be  paid 
compensation  as  a  member  of  a  commission 
appointed  under  the  act  of  February  20,  1895, 
to  select  a  site  for  a  public  building,  service 
upon  such  commission  not  invohdng  the 
holding  of  an  office  within  the  meaning  of  the 
act  of  1894.     (2  Comp.  Dec,  467.) 

The  Secretary  of  the  Naw  is  not  precluded 
by  the  act  of  July  31,  1894,  section  2,  from 
employing  a  retired  officer  under  the  act  of 
February  19,  1897,  to  supervise  the  completion 
of  certa.in  tables  of  planets.  The  said  act  of 
1897  read  as  follows:  "For  ser\-ices  of  a  com- 
petent mathematician  to  supervise  the  com- 
pletion of  the  tables  of  the  planets,  two  thousand 
five  hundred  dollars,  to  be  immediately  avail- 
able." This  pro\'ision  did  not  create  an  office, 
nor  did  it  contemplate  any  of  the  formalities  in 
the  selection  of  such  an  employee  as  to  dis- 
tinguish his  employment  as  an  office.  There 
is  no  permanency  to  the  term;  there  is  no 
requirement  that  the  person  employed  shall 
either  take  an  official  oath  or  receive  a  com- 
mission. (21  Op.  Atty.  Gen.,  507.  See  2 
Comp.  Dec,  271,  to  the  effect  that  "it  does  not 
follow  that  everyone  who  takes  the  oath  of 
office  is  an  officer";  in  the  latter  case  the 
special  assistant  to  the  United  States  attorney 
was  required  by  law  to  take  an  oath.) 

A  retired  officer  of  the  Navy  on  active  duty 
in  time  of  war  is  entitled  to  an  additional  salary 
as  meteorologist,  to  which  position  he  was 
appointed  by  the  Secretary  of  the  Navy  vnXh. 
salary  payable  from  the  appropriation  "Na- 
tional defense,"  which  appropriation  was  to 
be  expended  at  the  discretion  of  the  President. 
The  action  of  the  Secretary  of  the  Navy  was 
the  action  of  the  President,  and  the  power 
granted  the  latter  by  the  appropriation  for  the 
national  defense  was  intended  to  be  the  most 
adequate  and  comprehensive,  reposing  the 
largest  discretion  in  the  President,  not  subject 
to  review.  (Hayden  v.  U.  S.,  38  Ct.  Cls.,  39.) 
The  chief  clerk  of  the  Department  of  Agri- 
culture, at  a  salary  of  $2,500  a  year,  was  ap- 
pointed a  captain  of  Infantry  on  the  retired  list 
of  the  Army  under  authority  of  a  special  act  of 
Congress  approved  June  6,  1900  (31  Stat.,  554): 
Held,  that  his  appointment  as  a  retired  officer 
ha\dng  been  specially  authorized  by  Congress 
while  he  was  holding  an  office  with  a  salary 
attached  thereto  of  $2,500  per  annum,  the  act 
of  July  31,  1894,  did  not  apply;  and  that  a 
retired  officer  does  not  receive  "compensation 
as  an  officer  or  employee  of  the  Government" 
within  the  meaning  of  the  following  enactment 


loro 


Public  Oflicers. 


PL  2.  REVISED  STATUTES. 


Sec.  1765. 


of  March  3,  1885  (23  Stat.,  356,  sec.  2):  "That 
no  part  of  the  money  herein  or  hereafter  appro- 
priated for  the  Department  of  Agriculture  shall 
be  paid  to  any  person,  as  additional  salary  or 
compensation,  receiving  at  the  same  time 
other  compensation  as  an  officer  or  employee 
of  the  Government."  (Geddes  v.  U.  S.,  38 
Ct.  Cls.,  428.) 

There  must  be  "compensation"  received 
before  there  can  be  "additional  compensation " 
prohibited ;  as  a  matter  of  fact,  the  pay  of  a  re- 
tired officer  is  not  compensation.  (Geddes  v. 
tr.  S.,  38  Ct.  Cls.,  428.)  The  pay  of  a  retired 
officer  appointed  under  a  special  act  of  Congress 
"is  not  given  as  compensation  for  discharging 
the  duties  of  any  office  during  the  period  for 
which  it  is  to  be  paid,  but  rather  as  a  bounty, 
and  in  the  nature  of  a  pension,  for  services  to 
his  country  previously  performed.  (Collins  v. 
U.  S.,  15  Ct.  Cls.,  22,  40.)  The  pay  of  an  officer 
on  the  retired  list  is  "an  honorable  form  of 
pension."  (Fletcher  v.  U.  S.,  26  Ct.  Cls.,  541, 
563.) 

It  is  well  settled  that  an  officer's  reduced 
retired  pay  is  but  an  honorary  form  of  pension 
to  be  paid  him  when,  having  reached  a  certain 
age,  it  is  presumed  that  he  is  no  longer  well 
fitted  to  render  active  service  to  the  Govern- 
ment. (Geddes  v.  U.  S.,  38  Ct.  Cls.,  428. 
But  see  11  Comp.  Dec,  422,  and  29  Op.  Atty. 
Gen.,  397,  407,  where  this  reasoning  of  the 
Court  of  Claims  is  not  concurred  in.) 

The  i^rovision  in  the  act  of  July  31,  1894,  ex- 
cepting from  its  operation  retired  officers  of  the 
Army  and  Navy,  in  certain  specified  cases, 
necessarily  implies  that  such  retired  officers 
are  included  in  the  remaining  portion  of  the 
enactment  relating  to  offices  having  "annual 
salary  or  compensation  attached  thereto." 
(11  Comp.  Dec,  422.) 

A  retired  officer  of  the  Army,  whose  retired 
pay  was  $2,625  per  annum,  can  not  hold  the 
l)osition  of  clerk  in  the  Treasury  Department 
at  $1,400  per  annum,  as  the  holding  of  both 
offices  is  forbidden  by  the  act  of  1894.  (11 
Comp.  Dec,  422.) 

A  retired  officer  of  the  Marine  Corps,  whose 
pay  as  such  is  $1,980  per  annrnn,  can  accept  the 
jiosition  of  cashier  in  the  subtreasury  at  Phila- 
delphia, Pa.,  at  a  salary  of  $2,500  per  annum, 
and  continue  to  receive  the  aforementioned 
retii-ed  pay.  (Comp.  Dec,  Sept.  26,  1910,  file 
26254-539,  case  of  Capt.  John  G.  Muir,  U. 
S.  M.  C,  following  Geddes  v.  U.  S.,  above 
noted,  and  not  citing  11  Comp.  Dec,  422.^ 

A  retired  officer  of  the  Navy  whose  retired 
pay  amounts  to  $2,500  per  annum  is  mthin  the 
prohibition  of  section  2  of  the  act  of  July  31, 
1894,  and  is  ineUgible  to  hold  office  as  clerk  of 
class  3  under  the  United  States  Civil  Service 
Commission.     (29  Op.  Atty.  Gen.,  503.) 

It  is  clear,  both  on  principle  and  according 
to  the  authorities,  that  a  retired  officer  of  the 
Navy  holds  an  office  with  a  salary  or  annual 
compensation  attached,  within  the  meaning  of 
the  enactment  of  1894,  even  if  the  express  lan- 
guage of  the  exception  be  not  considered ;  this 
conclusion  is  rendered  irresistible  by  the  pi"o- 
vision  to  that  act  excepting  retired  officers  of 


the  Army  or  Navy  in  certain  cases.     (29  Op. 
Atty.  Gen.,  503. :j 

A  notary  public  in  the  District  of  Columbia 
is  an  officer  of  the  Government  within  the 
meaning  of  the  act  of  July  31,  1894;  and  if  he 
accepts  an  ofiice,  the  salary  of  which  is  $2,500, 
he  is  precluded  by  the  statute  from  receiving 
any  compensation  for  services  rendered  as 
notary  to  the  Government.  (Pack  v.  U.  S., 
41  Ct.  Cls.,  414.) 

The  position  of  clerk  of  class  3  under  the 
United  States  Civil  Service  Commission,  the 
appointment  thereto  being  authorized  by  the 
President,  is  an  office  within  the  meaning  of  the 
act  of  1894.     (29  Op.  Atty.  Gen.,  503.) 

Where  appointment  to  two  certain  offices  is 
claimed,  and  to  so  hold  would  involve  a  con- 
struction that  the  appointment  was  invalid 
under  the  act  of  1894,  the  court  must  adopt 
the  view  that  a  legal  appointment  was  contem- 
plated, and  hence  that  the  claimant  was  not 
appointed  to  two  offices.  (McMath  v.  U.  S., 
51  Ct.  Cls.,  356;  affinned,  248  U.  S.,  151.) 

A  retired  naval  officer  whose  compensation 
as  such  amoimts  to  $2,500  per  annum  is  ineli- 
gible to  appointment  as  a  commercial  attache 
under  the  provisions  of  the  act  of  July  16,  1914 
(38  Stat.,  500),  making  appropriations  for  the 
legislative,  executive,  and  judicial  expenses 
of  the  Government.     (30  Op.  Atty.  Gen.,  298.) 

Additional  compensation  allowed  med- 
ical officer  of  the  Navy. — A  medical  officer 
in  the  Na\'y  is  entitled  to  compensation  from 
appropriations  under  the  control  of  the  Depart- 
ment of  Justice  for  professional  services  ren- 
dered by  him  to  United  States  prisoners  in  a 
United  States  jail.  (Comp.  Dec,  May  15, 
1912,  45  MS.  Comp.  Dec,  300,  following  18 
Comp.  Dec,  156;  see  note  to  sec.  1368,  R.  S., 
under  "Medical  attendance  to  persons  not  in 
the  Navy.") 

Additional  compensation  not  allowed 
naval  officer  detailed  to  War  Depart- 
ment.— Where  a  naval  constructor  was  de- 
tailed by  the  Secretary  of  the  Na\y  to  perform 
duty  under  the  War  Department,  in  inspecting 
a  vessel  chartered  as  an  Army  transport,  the 
officer  is  not  burdened  with  services  not  inci- 
dent to  his  office;  the  duties  required  of  him 
were  of  the  general  nature  performed  by  him 
in  the  Navy.  Additional  compensation  for 
such  inspection  service  is  prohibited  by  sec- 
tion 1765,  Revised  Statutes.  (Stocker  v.  U. 
S.,  39  Ct.  Cls.,  300;  see  notes  to  sees.  1404  and 
1437,  R.  S.) 

For  other  cases,  see  note  to  section  1440, 
Revised  Statutes,  as  to  appointment  of  Navy 
officers  in  the  diplomatic  or  consular  service 
section  1860,  Revised  Statutes,  as  to  naval  per- 
sonnel holding  civil  offices  in  territories;  act 
June  10,  1896  (29  Stat . ,  361 ),  as  to  officers  of  the 
Navy  holding  employment  with  private  con- 
tractors; sections  170  and  182,  Re\'ised  Stat- 
utes, as  to  clerks  and  officers  in  executive 
departments;  and  act  March  4,  1909,  sec  113, 
35  Stat.,  1109,  as  to  officers  acting  as  attorneys 
for  claimants,  etc,  in  matters  in  which  the 
United  States  is  interested. 


1071 


Sec.  1778. 


PL  2.  REVISED  STATUTES. 


Public  Officers. 


and  to  turn  the  balances  into  the  Treasury. 
They  would  naturally  be  in  "arrears"  and  be 
in  a  position  to  have  a  ' '  balance  due  "  found  by 
the  accounting  officers.  (26  Op.  Attv.  Gen., 
77.) 

The  clause,  "until  he  has  accounted  for  and 
paid  into  the  Treasury  all  sums  for  which  he 
may  be  liable,"  is  conclusive  upon  the  point. 
This  language  is  not  appropriate  to  mere  in- 
debtedness.    (26  Op.  Atty.  Gen.,  77.) 

The  provision  that  suit  shall  be  commenced 
against  the  delinquent  "and  his  sureties" 
indicates  that  Congress  was  not  regarding  mere 
debtors  but  the  class  of  persons  who  had  sure- 
ties for  the  performance  of  their  contracts  or 
their  other  duties,  chiefly,  of  course,  the  re- 
ceipt and  disbursement  of  public  moneys. 
(26  Op.  Atty.  Gen.,  77.) 

For  other  cases,  see  note  to  section  236, 
Revised  Statutes. 


Sec.  1766.  [Officer  in  arrears ;  withholding  pay.]  No  money  shall  be  paid 
to  any  person  for  his  compensation  who  is  in  arrears  to  the  United  States,  until 
he  has  accounted  for  and  paid  into  the  Treasury  all  sums  for  which  he  may  be 
liable.  In  all  cases  where  the  pay  or  salary  of  any  person  is  withheld  in  pur- 
suance of  this  section,  the  accounting  officers  of  the  Treasury,  if  required  to  do 
so  by  the  party,  his  agent  or  attorney,  shall  report  forthwith  to  the  Solicitor  of 
the  Treasury  the  balance  due;  and  the  Sohcitor  shall,  within  sixty  days 
thereafter,  order  suit  to  be  commenced  against  such  delinquent  and  his  sure- 
ties.—(25  Jan.,  1828,  c.  2,  v.  4,  p.  246.     20  May,  1836,  c.  77,  v.  5,  p.  31.) 

Persons  to  whom  applicable. — Section 
1766,  Revised  Statutes,  does  not  apply  to  an 
ordinary  clerk,  who  is  a  judgment  debtor  of  the 
United  States  under  judgment  for  a  debt 
gro'uing  out  of  transactions  wholly  foreign  to 
his  employment,  and  having  nothing  to  do 
with  any  advance  of  public  money  or  any 
accounting  therefor.  In  such  case  this  section 
does  not  require  the  head  of  the  department  to 
^vithhold  the  salary  of  the  clerk.  Whether  or 
not  the  Government  has  the  right,  on  general 
principles,  to  do  so,  independently  of  section 
1766,  not  decided.  (26  Op.  Atty.  Gen.,  77; 
see  note  to  sec.  236,  R.  S.) 

This  section  does  not  apply  to  mere  indebted- 
ness, but  clearly  applies  to  one  who  has  received 
Government  moneys  to  be  disbursed  or  covered 
into  the  Treasury;  to  persons  who  are  in  a  rela- 
tion of  trust  to  the  Government  a,nd  have  in 
their  hands  sums  or  balances  of  public  funds 
for  which  they  are  bound  to  render  accounts 

Sec.  1773.  [Commissions.]  The  President  is  authorized  to  make  out  and 
deliver,  after  the  adjournment  of  the  Senate,  commissions  for  all  officers  whose 
appointments  have  been  advised  and  consented  to  by  the  Senate. —  (2  Mar., 
1867,  c.  154,  s.  6,  v.  14,  p.  431.) 

The  commissions  of  all  officers  under  the  direc-  shall  not  be  affixed  to  any  such  commis- 

tion  and  control  of  the  Secretary  of  the  sion  before  the  same  shall  have  been  signed 

Navy  shall  be  made  out  and  recorded  in  by  the  President  of  the  United   States, 

the  Navy   Department,   and  the  depart-  (Act  Mar.  28,  1896,  29  Stat.,  75.) 

ment  seal  affixed  thereto,  any  laws  to  the  See  note  to  Constitution,  Article  II,  section  3, 

contrary  notwithstanding;  but  such  seal  ,           under  "II.  Duty  to  commission  officers." 

Sec.  1774.  [Recess  appointments;  accounting  officers  notified.]  Whenever 
the  President,  witliout  the  advice  and  consent  of  the  Senate,  designates,  author- 
izes, or  employs  any  person  to  perform  the  duties  of  any  office,  he  shall  forth- 
with notify  the  Secretary  of  the  Treasury  thereof,  and  the  Secretary  of  the 
Treasury  shall  thereupon  communicate  such  notice,  to  all  the  proper  accounting 
and  disbursing  officers  of  his  Department. —  (2  Mar.,  1867,  c.  154,  s.  8,  v.  14, 

p.  431.) 

Sec.  1778.  [Oaths  or  acknowledgments ;  before  whom  taken.]  In  all  cases  in 
which,  under  tlie  laws  of  the  United  States,  oaths  or  aclaiowledgments  may 
now  be  taken  or  made  before  any  justice  of  tlie  peace  of  any  State  or  Territory, 
or  in  the  District  of  Columbia,  they  may  hereafter  be  also  taken  or  made  by 
or  before  any  notary  public  duly  appointed  in  any  State,  district,  or  Territory, 
or  any  of  the  commissioners  of  the  circuit  courts,  and,  when  certified  under  the 
hand  and  official  seal  of  such  notary  or  commissioner,  shall  have  the  same 
force  and  effect  as  if  taken  or  made  by  or  before  such  justice  of  the  peace. —  (16 


1072 


Public  Officers. 


Pt.  2.  REVISED  STATUTES. 


Sec.  1784. 


Sept.,  1850,  c.  52,  v.  9,  p.  458.  29  July,  1854,  c.  159,  s.  1,  v.  10,  p.  315.  22 
June,  1874,  c.  390,  s.  20,  v.   18,  p.  186.  15  Aug.,  1876,  c.  304,  v.  19,  p.  206.) 


Act.t)f  May  28,  1896,  section  19  (29  Stat.,  184), 
amended  by  act  March  2,  1901  (31  Stat., 
956),  pro\'ided  for  the  appointment  of 
United  States  commissioners  by  the  district 
court  of  each  judicial  district,  who  shall 
have  the  same  powers  and  perform  the 
same  duties  as  commissioners  of  the  cir- 
cuit courts. 

Act  of  JMarch  3,  1911,  section  289  (36  Stat., 
1167),  abolished  circuit  courts. 


As  to  acknowledgment  of  deeds  in  Guam  and 
Samoa,  see  act  of  June  28,  1906  (34  Stat., 
552). 

As  to  administration  of  oaths  to  expense  ac- 
counts by  chief  clerks  of  the  various  exec- 
utive departments  or  clerks  designated  by 
them  for  the  purpose,  see  act  of  August  24, 
1912,  section  8  (37_Stat.,  487). 

See  section  183,  Revised  Statutes,  and  note 
thereto. 


Sec.  1779.  [Newspapers,  books,  etc. ;  restriction  upon  purchase.]  No  execu- 
tive officer,  other  than  the  heads  of  Departments,  shall  apply  more  than  thirty 
dollars,  annually,  out  of  the  contingent  fund  under  his  control,  to  pay  for 
newspapers,  pamplilets,  periodicals,  or  other  books  or  prints  not  necessary  for 
the  business  of  his  office. —  (3  Mar.,  1839,  c.  82,  s.  3,  v.  5,  p.  349.) 


less  specifically  authorized  by  the  appro- 
priation. (Act  Mar.  15,  1898,  sec.  3,  30 
Stat.,  316.) 


See  sections  192  and  193,  Revised  Statutes,  and 
note  thereto. 

Expenditures  for  law  books,  books  of  refer- 
ence, and  periodicals  are  prohibited,  un- 

Sec.  1784.  [Contributions,  presents,  etc.,  to  superiors.]  No  officer,  clerk,  or 
employe  in  the  United  States  Government  employ  shall  at  any  time  solicit  con- 
tributions from  other  officers,  clerks,  or  employes  in  the  Government  service 
for  a  gift  or  present  to  those  in  a  superior  official  position ;  nor  shall  any  such 
officials  or  clerical  superiors  receive  any  gift  or  present  offered  or  presented  to 
them  as  a  contribution  from  persons  in  Government  employ  receiving  a  less 
salary  than  themselves;  nor  shall  any  officer  or  clerk  make  any  donation  as  a 
gift  or  present  to  any  official  superior.  Every  person  who  violates  this  section 
shall  be  summarily  discharged  from  the  Government  employ. —  (1  Feb.,  1870, 
c.  11,  V.  16,  p.  63.) 


"Superior  official"  construed. — It  is  con- 
sidered that  an  officer  superior  in  rank  is  a  su- 
perior official  within  the  intent  of  the  section 
1784,  Revised  Statutes,  and  the  Navy  Regu- 
lations on  the  same  subject.  Accordingly, 
officers  of  the  Corps  of  Civil  Engineers  in  the 


Navy  could  not  legally  present  a  testimonial 
to  another  member  of  that  corps  of  higher  rank 
in  the  Navy,  notwithstanding  that  the  latter's 
duty  did  not  place  him  over  and  in  charge  of 
those  contributing.  (File  26806-33,  Nov.  9, 
1909;  Naval  Dig.,  1916,  pp.  621,  622.) 


1073 


TITLE  XXIII. 


THE  TERRITOEIES. 


Sec.  1860.  [Voting  and  holding  office  in  the  Territories.]  *  *  *  Third. 
No  officer,  soldier,  seaman,  mariner,  or  other  person  in  the  Army  or 
Navy,  or  attached  to  the  troops  in  the  service  of  the  United  States,  shall  be 
allowed  to  vote  in  any  Territory,  by  reason  of  being  on  service  therein,  unless 
such  Territory  is,  and  has  been  for  the  period  of  six  months,  his  permanent 
domicile.— (25  Jan.,  1867,  c.  15,  v.  14,  p.  379.) 

Fourth.  No  person  belonging  to  the  Army  or  Navy  shall  be  elected  to  or 
hold  any  civil  office  or  appointment  in  any  Territory,  except  officers  of  the 
Army  on  the  retired  list. 


The  fourth  clause  of  this  section  was  expressly- 
amended  and  reenacted  to  read  as  above 
by  act  of  March  3,  1883(22  Stat.,  567),  the 
amendment  consisting  in  the  addition,  at 
the  end  of  said  clause,  of  the  words  "except 
officers  of  the  Army  on  the  retired  list." 
The  first  and  second  clauses  of  this  section 
are  omitted,  as  having  no  application  to 
the  Navy. 
See  sections  1440,  1763-1765,  Revised  Statutes, 
and  laws  noted  thereunder,  as  to  restric- 
tions  upon  civil  employment  by  officers 
of  the  Navy. 
Virgin  Islands. — The  Virgin  Islands  of  the 
United  States  are  neither  organized  nor  incor- 
porated territory,  and  therefore  section  1860, 
Re\ised  Statutes,  does  not  preclude  the  Presi- 
dent from  nominating  a  naval  officer  for  the 
position  of  judge  therein.     (31  Op.  Atty.  Gen., 
118.) 

Section  1860  applies  only  to  organized  terri- 
tories, and  is  not  applicable  to  a  mere  possession, 
such  as  the  Virgin  Islands,  for  which  there  has 
been  no  organic  act.  (31  Op.  Atty.  Gen.,  118. 
Prior  to  this  opinion  the  act  of  Mar.  3,  19l7,  39 
Stat.,  1132,  had  been  enacted,  establishing  a 
temporary  government  for  the  Virgin  Islands.) 
Philippine  Islands. — A  mere  contribution 
by  the  Philippine  Government  to  the  per- 
formance of  certain  military  functions,  and  in- 
trusting the  funds  to  an  officer  of  the  United 
States  Army,  who  is  held  to  military  responsi- 
bility therefor  by  court-martial,  does  not  make 
that  officer  a  civil  officer  of  the  Philippine  Gov- 
ernment and  amenable  to  trial  in  the  civil 
courts  for  falsification  of  his  accounts  as  a  public 
official.     (Carrington  v.  U.  S.,  208  U.  S.,  1.) 


An  office  commonly  requires  something  more 
than  a  single  transitory  act  to  call  it  into  being. 
(Carrington  v.  U.  S.,  208  U.  S.,  1.) 

The  fact  that  an  officer  of  the  United  States 
Army,  intrusted  with  money  by  the  Philippine 
Government  to  be  expended  in  connection  with 
his  military  command,  signs  his  account,  "Dis- 
bursing Officer,"  instead  of  by  his  military 
title,  does  not  make  him  a  civil  officer  of  the 
Philippine  Government.  (Carrington  v.  U.  S., 
208  U.  S.,  1.) 

Porto  Rico. — This  section  applies  to  Porto 
Rico,  which  has  been  held  to  be  a  "territorv" 
under  its  terms.  (File  9736-18,  June  25,  1910, 
citing  file  1831-8,  Apr.  18,  1917:  5381-1,  Aug. 
30,  1907;  11  Comp.  Dec,  336,  339.) 

A  naval  surgeon  can  not  be  appointed  to  the 
position  of  health  officer  of  Culebra,  Porto  Rico. 
(File  1831-8,  Apr.  18,  1907.) 

An  officer  of  the  Marine  Corps  can  not  accept 
an  appointment  as  a  member  of  the  military 
staff  of  the  Governor  of  Porto  Rico.  (File 
•5381-],  Aug.  30,  1907.) 

Hawaiian  Islands. — This  section  has  been 
held  inapplicable  to  the  Hawaiian  Islands. 
(File  9736-18,  June  25,  1910,  citing  Matter  of 
Loucks,  13  Hawaii,  17.) 

Mayor  of  city. — Section  1860  does  not  pro- 
hibit a  retired  officer  of  the  Navy  from  accept- 
ing an  office  as  mayor  of  the  city  in  one  of  the 
States  if  duly  elected  thereto;  in  such  case, 
however,  a  retired  officer  would  be  subject  to 
recall  to  naval  duty  if  the  exigencies  of  the 
service  should  require  in  time  of  war.  (File 
5650-00,  Sept.  21,  1900.) 


1075 


TITLE  XXV. 

CITIZENSHIP. 

Sec.  1996.  [Rights  as  citizens  forfeited  for  desertion,  &c.]  All  persons 
who  deserted  the  military  or  naval  service  of  the  United  States  and  did  not 
return  thereto  or  report  themselves  to  a  provost-marshal  within  sixty  days 
after  the  issuance  of  the  proclamation  by  the  President,  dated  the  11th  day  of 
March,  1865,  are  deemed  to  have  voluntarily  relinquished  and  forfeited  their 
rights  of  citizenship,  as  well  as  their  right  to  become  citizens;  and  such  de- 
serters shall  be  forever  incapable  of  holding  any  ofRce  of  trust  or  profit  under 
the  United  States,  or  of  exercising  any  rights  of  citizens  thereof. — (3  Mar.,  1865, 
c.  79,  s.  21,  V.  13,  p.  490.) 

See  section  1998,  Revised  Statutes,  and  note  thereto. 

Sec.  1998.  [Desertion  in  time  of  war;  penalties  and  forfeitures.]  That 
every  person  who  hereafter  deserts  the  mihtary  or  naval  service  of  the  United 
States,  or  who,  being  duly  enrolled,  departs  the  jurisdiction  of  the  district  in 
which  he  is  enrolled,  or  goes  beyond  the  limits  of  the  United  States,  with  intent 
to  avoid  any  draft  into  the  military  or  naval  service,  lawfully  ordered,  shall  be 
liable  to  all  the  penalties  and  forfeitures  of  section  nineteen  hundred  and  ninety- 
six  of  the  Revised  Statutes  of  the  United  States :  Provided,  That  the  provisions 
of  this  section  and  said  section  nineteen  hundred  and  ninety-six  shall  not  apply 
to  any  person  hereafter  deserting  the  military  or  naval  service  of  the  United 
States  in  time  of  peace:  And  provided  further, That  the  loss  of  rights  of  citizen- 
ship heretofore  imposed  by  law  upon  deserters  from  the  mihtary  or  naval  serv- 
ice may  be  mitigated  or  remitted  by  the  President  where  the  offense  was  com- 
mitted in  time  of  peace  and  where  the  exercise  of  such  clemency  will  not  be 
prejudicial  to  the  public  interests:  And  provided  further,  That  the  provisions  of 
section  eleven  hundred  and  eighteen  of  the  Revised  Statutes  of  the  United 
States  that  no  deserter  from  the  military  service  of  the  United  States  shall  be 
enlisted  or  mustered  into  the  military  service,  and  the  provisions  of  section  two 
of  the  Act  of  Congress  approved  August  first,  eighteen  hundred  and  ninety-four, 
entitled  'An  Act  to  regulate  enlistments  in  the  Army  of  the  United  States,'  shall 
not  be  construed  to  preclude  the  reenlistment  or  muster  into  the  Army  of  any 
person  who  has  deserted,  or  may  hereafter  desert,  from  the  military  service  of 
the  United  States  in  time  of  peace,  or  of  any  soldier  whose  service  during  his 
last  preceding  term  of  enlistment  has  not  been  honest  and  faithful,  whenever 
the  reenlistment  or  muster  into  the  military  service  of  such  person  or  soldier 
shall,  in  view  of  the  good  conduct  of  such  person  or  soldier  subsequent  to  such 
desertion  or  service,  be  authorized  by  the  Secretary  of  War. 

1077 


Sec.  1998. 


Ft.  2.  REVISED  STATUTES. 


Citizenship. 


This  section  was  expressly  amended  and  reen- 
acted  to  read  as  above  by  act  of  Au,2;ust 
22,  1912  (37  Stat.,  356),  which  also  re- 
enacted  \nth  amendments  sections  1420 
and  1621,  article  19,  of  the  Revised  Stat- 
utes, relating  to  the  enlistment  of  deserters 
in  the  Navy.  As  originally  enacted,  sec- 
tions 1998  read  as  follows:  "Every  person 
who  hereafter  deserts  the  military  or  naval 
Ber\ice  of  the  United  States,  or  who.  being 
duly  enrolled,  departs  the  jurisdiction  of 
the  district  in  which  he  is  enrolled,  or  goes 
beyond  the  limits  of  the  United  States, 
\vith  intent  to  avoid  any  draft  into  the 
military  or  naval  service,  lawfully  ordered, 
shall  be  liable  to  all  the  penalties  and  for- 
feitures of  section  nineteen  hundred  and 
ninety-six."— (3  Mar.,  1865,  c.  79,  s.  21,  v. 
13,  p.  490.) 
Effect  of  pardon. — Section  1998,  Rmdsed 
Statutes,  as  amended  by  the  act  of  August  22, 
1912,  prescribes  disabilities,  not  merely  inci- 


dental to  (jualifications  for  serWce  in  the  Navy, 
but  in  effect  and  by  express  avowal  constituting 
punishment  for  offenses,  which,  as  such, 
would  of  course  be  mped  out  by  an  uncondi- 
tional pardon.  (31  Op.  Atty.  Gen.,  225;  for 
other  cases,  see  note  to  Constitution,  Art.  II, 
sec.  2,  clause  1,  and  see  note  to  sec.  1441,  R.  S.) 

Penalties  attach  only  upon  conviction. — 
Section  1998,  Revised  Statutes,  is  not  void  as  a 
bill  of  attainder,  because  it  contemplates  trial 
by  court-martial  to  enforce  this  penalty,  as  well 
as  the  other  penalties  for  desertion.  (Gotcheus 
r.  Matheson,  58  Barb.  (N.  Y.),  153,61  N.  Y., 
425;  see  also  State i;.  Symonds,  57  Me.,  148;  Holt 
V.  Holt,  59  Me.,  464- Severance  v.  Healy,  50  N. 
H.,  448;  Huber  v.  Reily,  53  Pa.  St.,  112;  Mc- 
Cafferty?;.  Guyer,  59  Pa.  St.,  110;  Kurtz  v. 
Moffitt,  115  U.  S.,  501.) 

For  other  cases,  see  note  to  Constitution, 
Article  I,  section  9,  clause  3.  See  also  note  to 
to  Constitution,  Article  I,  section  8,  clause  4'. 


1078 


TITLE  XXVI. 

THE  ELECTIVE   FRANCHISE. 

Sec.  2003.  [Interference  with  elections;  Army  and  Navy  Officers.]  No 
officer  of  the  Army  or  Navy  of  the  United  States  shall  prescribe  or  fix,  or  attempt 
to  prescribe  or  fix,  by  proclamation,  order,  or  otherwise,  the  qualifications  of 
voters  in  any  State,  or  in  any  manner  interfere  with  the  freedom  of  any  elec- 
tion in  any  State,  or  with  the  exercise  of  the  free  right  of  suffrage  in  any  State. — 
(25  Feb.,  1865,  c.  52,  s.  1,  v.  13,  p.  437.) 

See  Criminal  Code,  act  March  4,  1909,  sections  22-26  (35  Stat.,  1092,  1093). 


1079 


TITLE   XXIX. 

IMMIGRATION. 

Sec.  2163.  [Examination  of  vessels.]  The  President  is  empowered,  in  such 
way  and  at  such  time  as  he  may  judge  proper,  to  direct  the  vessels  of  the  United 
States,  and  the  masters  and  commanders  thereof,  to  examine  all  vessels  navi- 
gated or  owned  in  whole  or  in  part  by  citizens  of  the  United  States,  and  regis- 
tered, enrolled,  or  licensed  under  the  laws  thereof,  whenever,  in  the  judgment 
of  such  master  or  commanding  officer,  reasonable  cause  exists  to  believe  that 
such  vessel  has  on  board  any  subjects  of  China,  Japan,  or  other  oriental  country, 
known  as  "coolies;"  and,  upon  sufficient  proof  that  such  vessel  is  employed  in 
violation  of  the  preceding  provisions,  to  cause  her  to  be  carried,  with  her  officers 
and  crew,  into  any  port  or  district  within  the  United  States,  and  delivered  to 
the  marshal  of  such  district,  to  be  held  and  disposed  of  according  to  law. — (19 
Feb.,  1862,  c.  27,  s.  6,  v.  12,  p.  341.) 


1081 


TITLE  XXXII. 


THE  PUBLIC  LANDS. 


Sec. 
2293.  Affidavits;  naval  personnel;  before  whom 

made. 
2300.  Minors,  privileges  of. 

2304.  Soldiers'  and  sailors'  homestead. 

2305.  Credit  for  time  in  military  and  naval 

service. 

2308.  Service  in  Navy  equivalent  to  residence. 

2309.  Entry  by  agent;  requirements. 
2393.  Military  or  other  reservations. 


Sec. 
2458. 
2459. 

2460. 
2461. 

2462. 
2463. 


Lands  for  supplying  timber  to  the  Navy. 

Selection  of  live-oak  and  red-cedar 
tracts. 

Protection  of  timber  in  Florida. 

Cutting  or  destroying  timber  reserved  for 
Navy. 

Forfeiture  of  vessels. 

Clearance  of  vessels;  timber  cut  by  con- 
sent of  Navy  Department. 


Sec.  2293.  [Affidavits;  naval  personnel;  before  whom  made.]  In  case  of 
any  person  desirous  of  availing  himself  of  the  benefits  of  this  cliapter;  but 
who,  by  reason  of  actual  service  in  the  military  or  naval  service  of  the  United 
States,  is  unable  to  do  the  personal  preliminary  acts  at  the  district  land-office 
which  the  preceding  sections  require;  and  whose  family,  or  some  member 
thereof,  is  residing  on  the  land  which  he  desires  to  enter,  and  upon  which  a 
bona-fide  improvement  and  settlement  have  been  made,  such  person  may  make 
the  affidavit  required  by  law  before  the  officer  commanding  in  the  branch  of 
the  service  in  which  the  party  is  engaged,  which  affidavit  shall  be  as  binding 
in  law,  and  with  like  penalties,  as  if  taken  before  the  register  or  receiver;  and 
upon  such  affidavit  being  filed  with  the  register  by  the  wife  or  other  representa- 
tive of  the  party,  the  same  shall  become  effective  from  the  date  of  such  filing, 
provided  the  application  and  affidavit  are  accompanied  by  the  fee  and  commis- 
sions as  required  by  law. —  (21  Mar.,  1864,  c.  38,  s.  4,  v.  13,  p.  35.) 


The  words  "this  chapter"  in  the  above  section 
refer  to  chapter  5,  "Homesteads,"  of  Title 
XXXII,  "The  Public  Lands." 

Amendment  to  this  section  was  made  by  act  of 
October  6,  1917  (40  Stat.,  391),  as  follows: 
"That  during  the  continuance  of  the  pres- 
ent war  with  Germany,  and  until  his  dis- 
charge from  ^er^dce,  any  man  serving  in  the 
armed  forces  of  the  United  States,  who, 
prior  to  the  beginning  of  his  services  was  a 
settler,  an  applicant,  or  entryman  under  the 
land  laws  of  the  United  States,  or  who  has, 
prior  to  enlistment,  filed  a  contest,  with  the 
view  of  exercising  preference  right  of  entry 
therefor,  may  make  any  affidavit  required 
by  law  or  regulation  of  the  department, 
affecting  such  application,  entry,  or  con- 


test, or  necessary  to  the  making  of  entry  in 
the  case  of  the  successful  termination  of 
such  contest  awarding  him  preference  right 
of  entry,  before  his  commanding  officer  as 
provided  in  section  twenty-two  hundred 
and  ninety-three  of  the  Revised  Statutes  of 
the  United  States,  which  affidavits  shall  be 
as  binding  in  law  and  with  like  penalties  as 
if  taken  before  the  Register  of  the  United 
States  Land  Office." 
Amendment  to  this  section  was  also  made  by  the 
Soldiers'  and  Sailors'  Civil  Relief  Act  of 
March  8,  1918,  section  501  (40  Stat.,  448), 
which  act,  however,  by  section  603  thereof 
r40  Stat.,  449)  was  to  remain  in  force  only 
until  the  termination  of  the  war  and  for  six 
months  thereafter. 


Sec.  2300.  [Minors,  privileges  of.]  No  person  who  has  served,  or  may  here- 
after serve,  for  a  period  not  less  than  fourteen  days  in  the  Army  or  Navy  of  the 
United  States,  either  regular  or  volunteer,  under  the  laws  thereof,  during  the 
existence  of  an  actual  war,  domestic  or  foreign,  shall  be  deprived  of  the  benefits 
of  this  chapter  on  account  of  not  having  attained  the  age  of  twenty-one  years. — 
(20  May,  1862,  c.  75,  s.  6,  v.  12,  p.  393.) 


54641°— 22- 


-69 


1083 


Sec.  2304. 


PL  2.  REVISED  STATUTES. 


Public  Lands. 


possess  under  said  laws:  Provided,  That  any 
requirements  as  to  establishment  of  resi- 
dence within  a  limited  time  shall  be  sus- 
pended as  to  entry  by  such  person  until  six 
months  after  his  dipcharire  from  military 
service:  Provided  further,  That  applications 
for  entry  may  be  verified  before  any  officer 
in  the  United  States,  or  any  foreiiijn  coun- 
try, authorized  to  administer  oaths  by  the 
laws  of  the  State  or  Territory  in  which  the 
land  may  be  situated." 


The  words  "this  chapter"  in  the  above  section 

refer  to  chapter  5,  "Homesteads,"  of  Title 

XXXI 1,  '-The  Public  Lands." 
By  act  of  Aus;ust  31,  ]<)18,  section  8  (40  Stat., 

957),  it  was  provided  "That  any  person, 

under   the   ?ige   of   twenty-one,  who   has 

served  or  shall  hereafter  serve  in  the  Army 

of  the  United  States  during  the  present 

emergency,  shall  be  entitled  to  the  same 

rights  under  the  homestead  and  other  land 

and  mineral  entry  laws,  general  or  special, 

as  those  over  twenty-one  years  of  age  now 

Sec.  2304.  [Soldiers'  and  sailors'  homesteads.]  Every  private  soldier  and 
officer  who  has  served  in  the  Army  of  the  United  States  during  the  recent  rebel- 
lion for  ninety  days,  and  who  was  honorably  discharged  and  has  remained  loyal 
to  the  Government,  including  the  troops  mustered  into  the  service  of  the  United 
States  by  virtue  of  the  third  section  of  an  act  approved  February  thirteenth, 
eighteen  hundred  and  sixty-two,  and  every  seaman,  marine,  and  officer  who  has 
served  in  the  Navy  of  the  United  States  or  in  the  Marine  Corps  during  the  rebel- 
lion for  ninety  days,  and  who  was  honorably  discharged  and  has  remained  loyal 
to  the  Government,  and  every  private  soldier  and  officer  who  has  served  in  the 
Army  of  the  United  States  during  the  Spanish  war,  or  who  has  served,  is  serv- 
ing, or  shall  have  served  in  the  said  Army  during  the  suppression  of  the  in- 
surrection in  the  Philippines  for  ninety  days,  and  who  was  or  shall  be  honorably 
discharged;  and  every  seaman,  marine,  and  officer  who  has  served  in  the  Navy 
of  the  United  States  or  in  the  Marine  Corps  during  the  Spanish  war,  or  who  has 
served,  is  serving,  or  shall  have  served  in  the  said  forces  during  the  suppression 
of  the  insurrection  in  the  Phihppines  for  ninety  days,  and  who  was  or  shall  be 
honorably  discharged,  shall,  on  compliance  with  the  provisions  of  this  chapter, 
as  hereinafter  modified,  be  entitled  to  enter  upon  and  receive  patents  for  a 
quantity  of  public  lands  not  exceeding  one  hundred  and  sixty  acres,  or  one 
quarter  section,  to  be  taken  in  compact  form,  according  to  legal  subdivisions, 
including  the  alternate  reserved  sections  of  public  lands  along  the  line  of  any 
railroad  or  other  public  work  not  otherwise  reserved  or  appropriated,  and  other 
lands  subject  to  entry  under  the  homestead  laws  of  the  United  States;  but  such 
homestead  settler  shall  be  allowed  six  months  after  locating  his  homestead  and 
filing  his  declaratory  statement  within  which  to  make  his  entry  and  commence 
his  settlement  and  improvement. 


This  section  was  expressly  amended  and  re- 
enacted  to  read  as  above  by  act  of  March  1, 
1901  (31  Stat.,  847). 

By  act  of  February  25,  1919  (40  Stat.,  1161),  it 
was  provided  "That  subject  to  the  condi- 
tions therein  expressed,  as  to  length  of 
service  and  honorable  discharge,  the  pro- 
visions of  sections  twenty-three  hundred 
and  four  and  twenty-three  hundred  and 
five,  Revised  Statutes  of  the  United  States, 
shall  be  applicable  in  all  cases  of  military 
and  naval  service  rendered  in  connection 
with  the  Mexican  border  operations  or 
during  the  war  with  Germany  and  its  allies 
as  defined  by  public  resolution  numbered 
thirty-two,  approved  August  twenty-ninth, 
nineteen  hundred  and  sixteen  (Thirty- 
ninth  Statutes  at  Large,  page  six  hundred 
and  seventy-one),  and  the  Act  approved 
July  twenty-eighth,  nineteen  hundred  and 

1084 


seventeen  (Fortieth  Statutes  at  Large, 
page  two  hundred  and  forty-eight.  "  (See 
note  to  sec.  2308,  R.  S.) 
By  joint  resolution  of  February  14,  1920  (41 
Stat.,  434-4.35),  it  was  provided  "That 
hereafter,  for  the  period  of  two  years  fol- 
lovving  the  passage  of  this  Act,  bn  the  open- 
ing of  public  or  Indian  lands  to  entry,  or 
the  restoration  to  entry  of  public  lands 
theretofore  withdrawn  from  entry,  such 
opening  or  restoration  shall,  in  the  order 
therefor,  provide  for  a  period  of  not  less 
than  sixty  days  before  the  general  opening 
of  such  lands  to  disposal  in  which  officers, 
soldiers,  sailors,  or  marines  who  have  served 
in  the  Army  or  Navy  of  the  United  States 
in  the  war  with  Germany  and  been  honor- 
ably separated  or  discharged  therefrom  or 
placed  in  the  Regular  Army  or  Naval 
Reserve  shall  have  a  preferred  right  of 


Public  Lands.  Pt.  2.  REVISED  STATUTES.  Sec.  2308. 


entry  under  the  homestead  or  desert  land 
laws,  if  qualified  thereunder,  except  as 
against  prior  existing  valid  settlement  rights 
and  as  against  preference  rights  conferred 
by  existing  laws  or  equitable  claims  sub- 
ject to  allowance  and  confirmation:  Pro- 
vided, That  the  rights  and  benefits  con- 
ferred by  this  Act  shall  not  extend  to  any 
person  who,  having  been  drafted  for  serv- 


ice under  the  provisions  of  the  Selective 
Service  Act,  shall  have  refused  to  render 
such  service  or  to  wear  the  uniform  of  such 
service  of  the  United  States. 
"Sec  2.  That  the  Secretary  of  the  Interior  is 
hereby  authorized  to  make  any  and  all 
regulations  necessary  to  carry  into  full 
force  and  effect  the  provisions  hereof. " 


Sec.  2305.  [Credit  for  time  in  military  and  naval  service.]  The  time  which 
the  homestead  settler  has  served  in  the  Army,  Navy,  or  Marine  Corps  shall  be 
deducted  from  the  time  heretofore  required  to  perfect  title,  or  if  discharged  on 
account  of  wounds  received  or  disability  incurred  in  the  line  of  duty,  then  the 
term  of  enlistment  shall  be  deducted  from  the  time  heretofore  required  to  per- 
fect title,  without  reference  to  the  length  of  time  he  may  have  served;  but  no 
patent  shall  issue  to  any  homestead  settler  who  has  not  resided  upon,  improved, 
and  cultivated  his  homestead  for  a  period  of  at  least  one  year  after  he  shall  have 
commenced  his  improvements:  Provided,  That  in  every  case  in  which  a  settler 
on  the  public  land  of  the  United  States  under  the  homestead  laws  died  while 
actually  engaged  in  the  Army,  Navy,  or  Marine  Corps  of  the  United  States  as 
private  soldier,  officer,  seamen,  or  marine,  during  the  war  with  Spain  or  the 
Philippine  insurrection,  his  widow,  if  unmarried,  or  in  the  case  of  her  death 
or  marriage,  then  his  minor  orphan  children  or  his  or  their  legal  representatives, 
may  proceed  forthwith  to  make  final  proof  upon  the  land  so  held  by  the  de- 
ceased soldier  and  settler,  and  that  the  death  of  such  soldier  while  so  engaged  in 
the  service  of  the  United  States  shall  in  the  administration  of  the  homestead 
laws,  be  construed  to  be  equivalent  to  a  performance  of  all  requirements  as  to 
residence  and  cultivation  for  the  full  period  of  five  years,  and  shall  entitle  his 
widow,  if  unmarried,  or  in  case  of  her  death  or  marriage,  then  his  minor  orphan 
children  or  his  or  their  legal  representatives,  to  make  final  proof  upon  and  re- 
ceive Government  patent  for  said  land;  and  that  upon  proof  produced  to  the 
officers  of  the  proper  local  land  office  by  the  widow,  if  unmarried,  or  in  case  of 
her  death  or  marriage,  then  his  minor  orphan  children  or  his  or  their  legal  repre- 
sentatives, that  the  applicant  for  patent  is  the  widow,  if  unmarried,  or  in  case  of 
her  death  or  marriage,  his  orphan  children  or  his  or  their  legal  representatives, 
and  that  such  soldier,  sailor,  or  marine  died  while  in  the  service  of  the  United 
States  as  hereinbefore  described,  the  patent  for  such  land  shall  issue. 

This  section  was  expressly  amended  and  re-       See  note  to  section  2304,  Revised  Statutes, 
enacted  to  read  as  above  by  act  of  March  1, 
1901  (31  Stat.,  847). 

Sec.  2308.  [Service  in  Navy  equivalent  to  residence.]  Where  a  party  at  the 
date  of  his  entry  of  a  tract  of  land  under  the  homestead  laws,  or  subsequently 
thereto,  was  actually  enlisted  and  employed  in  the  Army  or  Navy  of  the  United 
States,  his  services  therein  shall,  in  the  administration  of  such  homestead  laws, 
be  construed  to  be  equivalent,  to  all  intents  and  purposes,  to  a  residence  for  the 
same  length  of  time  upon  the  tract  so  entered.  And  if  his  entry  has  been 
canceled  by  reason  of  his  absence  from  such  tract  while  in  the  military  or  naval 
service  of  the  United  States,  and  such  tract  has  not  been  disposed  of,  his  entry 
shall  be  restored;  but  if  such  tract  has  been  disposed  of,  the  party  may  enter 
another  tract  subject  to  entry  under  the  homestead  laws,  :nd  his  right  to  a 

1085 


Sec.  2309. 


Pt.  2.  REVISED  STATUTES. 


Public  Lands. 


patent  therefor  may  be  determined  by  the  proofs  touching  his  residence  and 
cultivation  of  the  first  tract  and  liis  absence  therefrom  in  such  service. —  (8  June, 
1872,  c.  338,  s.  4,  v.  17,  p.  333.) 


Act  June  16,  1S98  (30  Stat.,  473).— "That  in 
every  case  in  "which  a  settler  on  the  public 
land  of  the  Ignited  States  under  the  homestead 
laws  enlists  or  is  actually  en«;aged  in  the  Army, 
Navy,  or  Marine  Corps  of  the  United  States  as 
private  soldier,  officer,  seaman,  or  marine,  dur- 
ing the  existing  war  with  Spain,  or  during  any 
other  war  in  which  the  United  States  may  be 
engaged,  his  services  therein  shall,  in  the 
administration  of  the  homestead  laws,  be  con- 
strued to  be  equivalent  to  all  intents  and  pur- 
poses to  residence  and  cultivation  for  the  same 
length  of  time  upon  the  tract  entered  or  settled 
upon ;  and  hereafter  no  contest  shall  be  initiated 
on  the  ground  of  abandonment,  nor  allegation 
of  abandonment  sustained  against  any  such 
settler,  unless  it  shall  be  alleged  in  the  prelimi- 
nary affida\T.t  or  affidavits  of  contest,  and  proved 
at  the  hearing  in  cases  hereafter  initiated,  that 
the  settler's  alleged  absence  from  the  land  was 
not  due  to  his  emplovment  in  such  service: 
Provided,  That  if  such  settler  shall  be  dis- 
charged on  account  of  wounds  received  or 
disability  incurred  in  the  line  of  duty,  then  the 
term  of  his  enlistment  shall  be  deducted  from 
the  required  length  of  residence  ^\'ithout  refer- 
ence to  the  time  of  actual  service:  Provided 
Jurther,  That  no  patent  shall  issue  to  any  home- 
stead settler  who  has  not  resided  upon,  im- 
proved, and  cultivated  his  homestead  for  a 
period  of  at  least  one  year  after  he  shall  haAe 
commenced  his  improvements." 

Joint  resolution,  August  29,  1916  (39  Stat., 
G71),  provided  that  the  above-quoted  act  of 
June  IG,  1898  "shall  be  applicable  in  all  cases 
of  military  service  rendered  in  connection  with 
operations  in  Mexico,  or  along  the  borders 
thereof,  or  in  mobilization  camps  elsewhere, 
whether  such  service  be  in  the  military  or  naval 
organization  of  the  United  States  or  the 
National  Guard  of  the  several  States  now  or 
hereafter  in  the  service  of  the  United  States." 
(See  act  Feb.  25,  1919,  quoted  under  sec.  2304, 
R.  S.) 

Act  July  28,  1917,  section  1  (40  Stat.,  248).— 
"That  any  settler  upon  the  public  lands  of  the 
United  States;  or  any  entry  man  whose  applica- 
tion has  been  allowed;  or  any  person  who  has 
made  application  for  public  lands  which  there- 
after may  be  allowed  imder  the  homestead 
laws,  who,  after  such  settlement,  entry,  or 
application,  enlists  or  is  actually  engaged  in 
the  military  or  naval  service  of  the  United 
States  as  a  private  soldier,  officer,  seaman, 
marine,  national  guardsman,  or  member  of  any 
other  organization  for  offense  or  defense  author- 
ized by  Congress  during  any  war  in  which  the 
United  States  may  be  engaged,  shall,  in  the 
administration  of  the  homestead  laws,  have  his 
services  therein  construed  to  be  equivalent  to  ■ 
all  intents  and  purposes  to  residence  and  culti- 

Sec.  2309.  [Entry  by  agent ;  requirements.]  Every  soldier,  sailor,  marine, 
officer,  or  other  person  coming  within  the  provisions  of  section  twenty-three 
hundred  and  four,  may,  as  well  by  an  agent  as  in  person,  enter  upon  such  home- 


vation  for  the  same  length  of  time  upon  the 
tract  entered  or  settled  upon;  and  hereafter  no 
contest  shall  be  initiated  on  the  ground  of 
abandonment,  nor  allegation  of  abandonment 
sustained  against  any  such  settler,  entryman,  or 
person  unless  it  shall  be  alleged  in  the  prelimi- 
nary affidavit  or  affidavits  of  contest  and  proved 
at  the  hearing  in  cases  hereinafter  initiated  that 
the  alleged  absence  from  the  land  was  not  due 
to  his  employment  in  such  military  or  naval 
service ;  that  if  he  shall  be  discharged  on  account 
of  wounds  received  or  disability  incurred  in  the 
line  of  duty,  then  the  term  of  his  enlistment 
shall  be  deducted  from  the  required  length  of 
residence,  without  reference  to  the  time  of 
actual  service:  Provided,  That  no  patent  shall 
issue  to  any  homestead  settler  who  has  not 
resided  upon,  improved,  and  cultivated  his 
homestead  for  a  period  of  at  least  one  yeai'." 
(See  act  Feb.  25,  1919,  quoted  under  sec.  2304, 
R.  S.) 

The  same  act,  section  2,  provides  as  follows: 
' '  That  any  settler  upon  the  public  lands  of  the 
United  States;  or  any  entryman  whose  appli- 
cation has  been  allowed ;  or  any  person  who  has 
made  application  for  public  lands  which  there- 
after may  be  allowed  imder  the  homestead 
laws,  who  dies  while  actually  engaged  in  the 
military  or  naval  service  of  the  United  States 
as  a  private  soldier,  officer,  seaman,  marine, 
national  guardsman,  or  member  of  any  other 
organization  for  offense  or  defense  authorized  by 
Congress  during  any  war  in  which  the  United 
States  may  be  engaged,  then  his  ^^•idow,  if 
unmarried,  or  in  case  of  her  death  or  marriage, 
liis  minor  orphan  children,  or  his  or  their  legal 
representatives,  may  proceed  forthwith  to  make 
final  proof  upon  sucn  entry  or  application  there- 
after allowed,  and  shall  be  entitled  to  receive 
Government  patent  for  such  land ;  and  that  the 
death  of  such  soldier  while  so  engaged  in  the 
service  of  the  United  States  shall,  in  the  ad- 
ministration of  the  homestead  laws,  be  con- 
strued to  be  equivalent  to  a  performance  of  all 
requirements  as  to  residence  and  cultivation 
upon  such  homestead."  (SeeactFeb.  25, 1919, 
quoted  under  sec.  2304,  R.  S.) 

Act  September  29,  1919  (41  Stat.,  288),  made 
provision  for  granting  leave  of  absence  from 
their  land  to  persons  undergoing  any  course  of 
vocational  rehabilitation;  such  absence  to  be 
counted  as  constructive  residence. 

Act  March  1,  1921  (41  Stat.,  1202),  made  pro- 
vision for  issuing  patents  to  settlers  or  entrymen 
who  enlisted  in  the  Army,  Navy,  or  Marine 
Corps  prior  to  November  11,  1918,  having  pre- 
viously made  application,  settlement,  or  entry, 
and  who  have  been  honorably  discharged,  but 
because  of  physical  incapacities  incurred  in 
service  are  imaole  to  return  to  the  land. 


1086 


Public  Lands. 


PL  2.  REVISED  STATUTES. 


Sec.  2459. 


stead  b}^  filing  a  declaratory  statement,  as  in  pre-emption  cases;  but  such 
claimant  in  person  shall  T\dthin  the  time  prescribed  make  his  actual  entry, 
commence  settlements  and  improvements  on  the  same,  and  thereafter  fulfill  all 
the  requirements  of  law. —  (8  June,  1872,  c.  338,  s.  5,  v.  17,  p.  334.) 

Act  of  August  7,  1911  (40  Stat.,  250).— "That 
no  desert-land  entry  made  or  held  under  the 
provisions  of  the  Act  of  March  tliird,  ei2:hteen 
hundred  and  seventy-seven,  as  amended  by 
the  Act  of  March  third,  eighteen  hundred  and 
ninety-one,  by  an  officer  or  enlisted  man  in  the 
Army,  Navy,  Marine  Corps,  or  Organized  Mil- 
itia of  the  United  States  shall  be  subject  to 
contest  or  cancellation  for  failure  to  make  or 
expend  the  sum  of  $1  per  acre  per  year  in  im- 
provements upon  such  claim,  or  to  effect  the 
reclamation  thereof,  during  the  period  said  en- 
tn,-man  or  his  successor  in  interest  is  engaged  in 
the  military  ser\'ice  of  the  United  States  during 
the  present  war  with  Geimany,  and  until  six 
months  thereafter,  and  the  time  within  which 
such  entPk-man  or  claimant  is  required  to  make 
such  expenditures  and  effect  reclamation  of  the 
land  shall  be,  exclusive  of  the  time  of  his  actual 
service  in  the  -irmy,  Navy,  Marine  Corps,  or 

Sec.  2393.  [Military  or  other  reservations.]  The  provisions  of  this  chapter 
shall  not  apply  to  military  or  other  reservations  heretofore  made  by  the  United 
States,  nor  to  reservations  for  light-houses,  custom-houses,  mints,  or  such 
other  public  purposes  as  the  interests  of  the  United  States  may  require,  whether 
held  under  reservations  thi'ough  the  Land-Office  by  title  derived  from  the 
Crown  of  Spain,  or  other^^se. —  (2  Mar.,  1867,  c.  177,  v.  14,  p.  541.  28  Feh., 
1877,  c.  74,  V.  19,  p.  264.) 

Title 


Organized  Militia  of  the  United  States:  Pro- 
vided, That  said  desert-land  entry  shall  have 
been  made  by  the  said  officer  or  enlisted  man 
prior  to  his  enlistment:  Provided  further,  That 
each  such  entryman  or  claimant  shall,  within 
six  months  after  the  passage  of  this  Act,  or 
nithin  six  months  after  he  is  mustered  into  the 
service,  file  in  the  local  land  office  of  the  dis- 
trict wherein  his  claim  is  situate  a  notice  of  his 
muster  into  the  service  of  the  United  States  and 
of  his  desire  to  hold  said  desert  claim  under 
this  Act:  Provided  further.  That  the  term  'en- 
listed man,'  as  used  in  this  section  shall  include 
any  person  selected  to  serve  in  the  military 
forces  of  the  United  States  as  pro\'ided  by  the 
Act  entitled  'An  Act  authorizing  the  Presi- 
dent to  increase  temporarily  the  Militarj-  Estab- 
lishment of  the  United  States,'  approved  May 
eighteenth,  nineteen  hundred  and  seventeen." 


The  words  "this  chapter"  in  the  above  section 
refer  to  chapter  8,  "Reservations  and  sale 


of  town  sites  on  the  public  lands, 
XXXII,  "The  Public  Lands." 


Sec.  2458.  [Lands  for  supplying  timber  to  the  Navy.]  The  Secretary  of  the 
Navy  is  authorized,  under  the  direction  of  the  President,  to  cause  such  vacant 
and  unappropriated  lands  of  the  United  States  as  produce  the  live-oak  and 
red-cedar  timbers  to  be  explored,  and  selection  to  be  made  of  such  tracts  or  por- 
tions thereof,  where  the  principal  growth  is  of  either  of  such  timbers,  as  in  his 
judgment  may  be  necessary  to  furnish  for  the  Navy  a  sufficient  supply  of  the 
same.— (1  Mar.,  1817,  c.  22,  s.  1,  v.  3,  p.  347.  15  May,  1820,  c.  136,  v.  3,  p.  607. 
3  Mar.,  1827,  c.  94,  s.  3,  v.  4,  p.  242.) 

See  note  to  section  2459,  Revised  Statutes. 

Sec.  2459.  [Selection  of  live-oak  and  red-cedar  tracts.]  The  President  is  au- 
thorized to  appoint  surveyors  of  public  lands,  who  shall  perform  the  duties  pre- 
scribed in  the  preceding  section,  and  report  to  him  the  tracts  bj'  them  selected, 
with  the  boundaries  ascertained  and  accurately  designated  by  actual  survey  or 
water-courses;  and  the  tracts  of  land  thus  selected  %vith  the  approbation  of  the 
President  shall  be  reserved,  unless  otherwise  directed  by  law,  from  any  future 
sale  of  the  pubhc  lands,  and  be  appropriated  to  the  sole  purpose  of  supplying 
timber  for  the  Navy  of  the  United  States;  but  nothing  in  this  section  contained 
shall  be  construed  to  prejudice  the  prior  rights  of  any  person  claiming  lands, 
which  may  be  reserved  in  the  manner  herein  provided. — (1  Mar.,  1817,  c.  22,  s. 
1,  V.  3,  p.  347.) 


1087 


Sec.  2461. 


Pt.  2.  REVISED  STATUTES. 


Public  Lands. 


Restoration  to  public  domain  of  lands  in  Ala- 
bama and  Afississippi. — "That  the  Secretary  of 
the  Nav}''  be,  and  he  is  hereby,  authorized  to 
cause  to  be  certified  to  the  Secretary  of  the  In- 
terior, for  restoration  to  the  public  domain,  the 
whole  or  such  portion  or  portions  of  the  several 
tracts  of  land  in  the  States  of  Alabama  and 
Mississippi  heretofore  set  apart  and  reserA'ed 
for  naval  uses  as  are  no  longer  required  for  the 
purposes  for  which  they  were  reserved,  or  for 
any  purposes  connected  with  the  naval  service; 
ancl  upon  such  certification  the  tracts  of  land 
described  therein  shall  be  duly  restored  to  and 
become  a  part  of  the  public  lands  of  the  United 
States  *  *  *:  Provided,  That  persons  who 
enter  under  the  homestead  law  shall  pay  for 
such  lands  not  less  than  the  value  heretofore  or 
hereafter  determined  by  appraisement,  nor  less 
than  the  price  of  the  land  at  the  time  of  the 
entry;  and  such  payment  may,  at  the  option  of 
the  purchaser,  be  made  in  five  equal  install- 
ments, at  times  and  at  rates  of  interest  to  be 
fixed  by  the  Secretary  of  the  Interior:  Pro- 
vided, That  so  much  of  the  said  lands  as  are 
situated  on  Back  Bay^  near  the  city  of  Biloxi, 
in  the  State  of  Mississippi,  shall  be  disposed  of 
under  the  town-site  law  and  not  as  agricultural 
lands."     (Act  Mar.  2,  1895,  28  Stat.,  814.) 


Transfer  to  Interior  Department  of  lands  in 
Florida.— "ThAt  the  Secretary  of  the  Navy  be, 
and  he  is  hereV)y,  authorized  to  cause  an  exam- 
ination to  be  made  of  the  condition  of  all  lands 
in  the  State  of  Florida  which  have  been  set 
apart  or  reserved  for  naval  purposes,  excepting 
the  reservation  ujion  which  the  nai-y-yard  at 
Pensacola  is  located,  and  to  ascertain  whether 
or  not  such  reserAcd  lands  are  or  will  be  of  any 
value  to  the  Government  of  the  United  States 
for  naval  purposes. 

"Sec.  2.  That  all  of  said  lands  which,  in  the 
judgment  of  the  Secretary  of  the  Navy,  are  no 
longer  required  for  naval  purposes  shall,  as  soon 
as  practicable,  be  certified  by  him  to  the  Sec- 
retary of  the  Interior,  and  be  suVjject  to  entry 
and  sale  in  the  same  manner  and  under  the 
same  conditions  as  other  public  lands  of  the 
United  States:  Provided,  That  all  persons  who 
have,  in  good  faith,  made  improvements  on 
said  reserved  lands  so  certified  at  the  time  of  the 
passage  of  this  act,  and  who  occupy  the  same, 
shall  be  entitled  to  purchase  the  part  or  parts  so 
occupied  or  improved  by  them,  not  to  exceed 
one  hundred  and  sixty  acres  to  any  one  person 
at  one  dollar  and  twenty-five  cents  per  acre 
within  such  reasonable  time  as  may  be  fixed 
by  the  Secretary  of  the  Interior."  CAct  Mar. 
3,  1879,  20  Stat.;  470,  471.) 

Sec.  2460  [Protection  of  timber  in  Florida.]  The  President  is  authorized  to 
employ  so  much  of  the  land  and  naval  forces  of  the  United  States  as  may  be 
necessary  to  effectually  prevent  the  felling,  cutting  do-\vn,  or  other  destruction 
of  the  timber  of  the  United  States  in  Florida,  and  to  prevent  the  transportation 
or  carrying  away  any  such  timber  as  may  be  already  felled  or  cut  down;  and  to 
take  such  other  and  further  measures  as  may  be  deemed  advisable  for  the  pres- 
ervation of  the  timber  of  the  United  States  in  Florida. —  (23  Feb.,  1822,  c.  9, 
V.  3,  p.  651.) 

See  section  49,  Criminal  Code,  act  March  4,  1909  (35  Stat.,  1098). 

Sec.  2461  [Cutting  or  destroying  timber  reserved  for  Navy.]  If  any  person 
shall  cut,  or  cause  or  procure  to  be  cut,  or  aid,  assist,  or  be  employed  in  cutting, 
or  shall  wantonly  destroy,  or  cause  or  procure  to  be  wantonly  destroyed,  or  aid, 
assist,  or  be  employed  in  wantonly  destroying  any  live-oak  or  red-cedar  trees, 
or  other  timber  standing,  growing,  or  being  on  any  lands  of  the  United  States, 
which,  in  pursuance  of  any  law  passed,  or  hereafter  to  be  passed,  have  been 
reserved  or  purchased  for  the  use  of  the  United  States,  for  supplying  or  furnish- 
ing therefrom  timber  for  the  Navy  of  the  United  States ;  or  if  any  person  shall 
remove,  or  cause  or  procure  to  be  removed,  or  aid,  or  assist,  or  be  employed  in 
removing  from  any  such  lands  which  have  been  reserved  or  purchased,  any  live- 
oak  or  red-cedar  trees,  or  other  timber,  unless  duly  authorized  so  to  do,  by  order, 
in\ATiting,  of  a  competent  officer,  and  for  the  use  of  the  Navy  of  the  United  States; 
or  if  any  person  shall  cut,  or  cause  or  procure  to  be  cut,  or  aid,  or  assist,  or  be 
employed  in  cutting  any  live-oak  or  red-cedar  trees,  or  other  timber  on,  or  shall 
remove,  or  cause  or  procure  to  be  removed,  or  aid,  or  assist,  or  be  employed  in 
removing  any  live-oak  or  red-cedar  trees  or  other  timber,  from  any  other  lands 
of  the  United  States,  acquired,  or  hereafter  to  be  acquired,  with  intent  to  export, 
dispose  of,  use,  or  employ  the  same  in  any  manner  whatsoever,  other  than  for 


1088 


Public  Lands.  Pt.  2.  REVISED  STATUTES.  Sec.  2463. 

the  use  of  the  Navy  of  the  United  States;  every  such  person  shall  pay  a  fine 
not  less  than  triple  the  value  of  the  trees  or  timber  so  cut,  destroyed,  or  re- 
moved, and  shall  be  imprisoned  not  exceeding  twelve  months. —  (2  Mar.,  1831, 
c.  66,  s.  1,  V.  4,  p.  472.) 


States  and  Territories,  and  which,  was  ex- 
tended to  other  places  bv  act  of  Aiigiist 
4,  1892  (27  Stat.,  398).  (Morgan  v.  U.  S., 
148  Fed.  Rep.,  189,  192.) 


See  section  49,  Criminal  Code,  act  !March  4,  1909 
(35  Stat.,  1098);  see  also,  act  June  3,  1878, 
section  5  (20  Stat.,  90),  which  expressly 
amended  section  2461,  revised  Statutes 
as  to  prosecution  for  offenses  in  certain 

Sec.  2462.  [Forfeitnre  of  vessels.]  If  the  master,  o%vTier,  or  consignee  of  any 
vessel  shall  knowingly  take  on  board  any  timl)er  cut  on  lands  which  have  been 
reserved  or  purchased  as  in  the  preceding  section  prescribed,  without  proper 
authority,  and  for  the  use  of  the  Navy  of  the  United  States;  or  shall  take  on 
board  any  live-oak  or  red-cedar  timber  cut  on  any  other  lands  of  the 
United  States,  with  intent  to  transport  the  same  to  any  port  or  place  within 
the  United  States,  or  to  export  the  same  to  any  foreign  country,  the  vessel  on 
board  of  which  the  same  shall  be  taken,  transported,  or  seized,  shall,  with  her 
tackle,  apparel,  and  furniture,  be  wholly  forfeited  to  the  United  States,  and 
the  captain  or  master  of  such  vessel  wherein  the  same  was  exported  to  any 
foreign  country  against  the  provisions  of  this  section  shall  forfeit  and  pay  to  the 
United  States  a  sum  not  exceeding  one  thousand  dollars. —  (2  Mar.,  1831,  c.  66, 
s.  2,  V.  4,  p.  472.) 

By  act  of  April  30,  1878,  section  2  (20  Stat.,  46),  the  Territories  of  the  United  States,  it  shall 

it  was  provided  that  "if  any  timber  cut  on  be  liable  to  seiziu-e  by  United  States  au- 

the  public  lands  shall  be  exported  from  thority  wherever  found." 

Sec.  2463.  [Clearance  of  vessel ;  timber  cut  by  consent  of  Navy  Depart- 
ment.] It  shall  be  the  duty  of  all  collectors  of  the  customs  within  -the  States 
of  Alabama,  Mississippi,  Louisiana,  and  Florida,  before  allowing  a  clearance  to 
any  vessel  laden  in  whole  or  in  part  with  live-oak  timber,  to  ascertain  satis- 
factorily that  such  timber  was  cut  from  private  lands,  or,  if  from  public  ones, 
by  consent  of  the  Navy  Department.  And  it  is  also  made  the  duty  of  all  officers 
of  the  customs,  and  of  the  land  officers  mthin  those  States,  to  cause  prosecu- 
tions to  be  seasonably  instituted  against  all  persons  known  to  be  guilty  of 
depredations  on,  or  injiu-ies  to,  the  live  oak  growing  on  the  public  lands. —  (2  Mar., 
1833,  c.  67,  s.  3,  v.  4,  p.  647.) 

See  notes  to  sections  2459-2462,  Revised  Statutes;  and  see  section  4205,  Revised  Statutes, 
on  the  same  subject. 


1089 


TITLE  XXXIV. 


COLLECTION  OF  DUTIES  UPON  IMPORTS. 


Sec.  2687.  [Apportionment  of  compensation  for  part  of  year's  service.]  Col- 
lectors and  all  other  officers  of  the  customs,  serving  for  a  less  period  than  a  year, 
shall  not  be  paid  for  the  entire  year,  but  shall  be  allowed  in  no  case  a  greater 
than  a  pro  rata  of  the  maximum  compensation  of  such  officers  respectively 
for  the  time  only  which  they  actually  serve  as  such  collectors  or  officers,  whether 
the  same  be  under  one  or  more  appointments,  or  before  or  after  confirmation. 
And  no  collector  or  other  officer  shall,  in  any  case,  receive  for  his  services,  either 
as  fees,  salary,  fines,  penalties,  forfeitures,  or  otherwise,  for  the  time  he  may  be  in 
service,  beyond  the  maximum  pro  rata  rate  provided  by  law.  And  this  section 
shall  be  applied  and  enforced  in  regard  to  all  officers,  agents,  and  employes  of 
the  United  States  whomsoever,  as  well  those  whose  compensation  is  deter- 
mined by  a  commission  on  disbursements,  not  to  exceed  an  annual  maxi- 
mum, as  those  paid  by  salary  or  otherwise. —  (11  Feb.,  1846,  c.  7,  s.  1,  v.  9,  p. 
3.     18  July,  1866,  c.  201,  s.  34,  v.  14,  p.  186.) 


United  States  recei\'in,g  annual  or  monthly 
compensation. 


By  act  June  31,  1906,  section  6  (34  Stat.,  763), 
rules  were  prescribed  for  the  computation 
of  pay  of  persons  in  the  service  of  the 

Sec.  2767.  [Revenue-cutters  to  cooperate  with  Navy.]     The  revenue-cutters 
shall,  whenever  the  President  so  directs,  co-operate  with  the  Navy,  during 
which  time  they  shall  be  under  the  direction  of  the  Secretary  of  the  Navy,  and 
the  expenses  thereof  shall  be  defrayed  by  the  Navy  Department. —  (2  Mar. 
1799,  c.  22,  s.  98,  V.  1,  p.  699.) 


By  act  of  January  28,  1915  (38  Stat.,  800),  the 
Revenue-Cutter  Service  and  the  Life-Sav- 
ing Service  were  consolidated  and  reestab- 
lished as  the ' '  Coast  Guard,  "  and  it  was  pro- 
vided that  said  organization  "shall  consti- 
tute a  part  of  the  military  forces  of  theUnited 
States, ' '  and ' '  shall  operate  under  the  Treas- 
ury Department  in  time  of  peace  and  oper- 
ate as  a  part  of  the  Navy,  subject  to  the 
orders  of  the  Secretary  of  the  Navy,  in 
time  of  war  or  when  the  President  shall  so 
direct."     (See  note  to  sec.  1492,  R.  S.) 

By  act  of  August  29,  1916  (39  Stat.,  600),  it  was 
provided  that  "hereafter  whenever,  in  ac- 
cordance with  law,  the  expenses  of  the 
Coast  Guard  are  paid  by  the  Navy  Depart- 
ment,    any    naval    appropriations     from 


which  payments  are  so  made  shall  be  re- 
imbursed from  available  appropriations 
made  by  Congress  for  the  expenses  of  the 
CoastGuard."  (Byactsof  June  15, 1917,40 
Stat.,  212,  and  July  1,  1918,  40  Stat.,  731, 
appropriations  were  made  for  the  naval 
establishment,  and  it  was  provided  that 
said  appropriations  "shall  be  available 
for  similar  expenses  of  the  Coast  Guard  and 
Lighthouse  Ser\'ice  while  cooperating 
with  the  Navy  in  so  far  as  the  regular  ap- 
propriations for  these  ser\'ice3  are  insuffi- 
cient therefor;  and,  when  expenditures  are 
thus  made,  naval  appropriations  need  not 
be  reimbursed  from  the  appropriations  for 
the  Coast  Guard  and  Lighthouse  Service.") 


1091 


I 


TITLE  XXXVI. 

DEBTS  DUE  BY  OR  TO  THE  UNITED  STATES. 

Sec.  3477.  [Assignment  of  claims  against  United  States.]  All  transfers 
and  assignments  made  of  any  claim  upon  the  United  ^States,  or  of  any  part  or 
share  thereof,  or  interest  therein,  whether  absolute  or  conditional,  and  what- 
ever may  be  the  consideration  therefor,  and  all  powers  of  attorney,  orders,  or 
other  authorities  for  receiving  payment  of  any  such  claim,  or  of  any  part  or  share 
thereof,  shall  be  absolutely  null  and  void,  unless  they  are  freely  made  and  exe- 
cuted in  the  presence  of  at  least  two  attesting  witnesses,  after  the  allowance  of 
such  a  claim,  the  ascertainment  of  the  amount  due,  and  the  issuing  of  a  war- 
rant for  the  payment  thereof.  Such  transfers,  assignments,  and  powers  of 
attorney,  must  recite  the  warrant  for  payment,  and  must  be  acknowledged 
by  the  person  making  them,  before  an  officer  having  authority  to  take  acknowl- 
edgements of  deeds,  and  shall  be  certified  by  the  officer;  and  it  must  appear  by 
the  certificate  that  the  officer,  at  the  time  of  the  acknowledgement,  read  and 
fully  explained  the  transfer,  assignment,  or  warrant  of  attorney  to  the  person 
acknowledging  the  same. —  (29  July,  1846,  c.  66,  v.  9,  p.  41.  26  Feb.,  1853,  c. 
81,  s.  1,  V.  10,  p.  170.) 


See  sections  1430  and  1576,  Revised  Statutes, 
and  note  thereto,  as  to  assignment  of  wages 


by  enlisted  men  of  the  Navy,  and  allot- 
ments of  pay  by  officers  of  the  Navy. 


Sec.  3478.  [Oath  by  persons  prosecuting  claims.].  Any  person  prosecuting 
claims,  either  as  attorney  or  on  his  own  account,  before  any  of  the  Departments 
or  Bureaus  of  the  United  States,  shall  be  required  to  take  the  oath  of  allegiance, 
and  to  support  the  Constitution  of  the  United  States,  as  required  of  persons  in 
the  civil  service.— (17  July,  1862,  c.  205,  s.  1,  v.  12,  p.  610.) 

See  sections  190  and  1757,  Re^'ised  Statutes. 

Sec.  3479.  [Who  may  administer  oath.]  The  oath  provided  for  in  the  pre- 
ceding section  may  be  taken  before  any  justice  of  the  peace,  notary  public,  or 
other  person  who  is  legally  authorized  to  administer  an  oath  in  the  State  or 
district  where  the  same  may  be  administered. —  (17  July,  1862,  c.  205,  s.  2,  v. 
12,  p.  610. 


1093 


TITLE   XL. 


THE  PUBLIC  MONEYS. 


Sec. 
3614.  Bond  of  special  agents. 

3617.  Moneys  to  be  deposited  without  deduc- 

tion. 

3618.  Proceeds  of  sales;  miscellaneous  receipts. 

3619.  Penalty  for  withholding  money. 

3620.  Duty  of  disbursing  officers. 

3621.  Time  allowed  in  which  to  deposit  money. 

3622.  Time  allowed  for  rendering  accounts. 


Sec. 


3624.  Suits  to  recover  money  from  officers. 
3639.  Duties  of  custodians  of  public  moneys. 
3643.  Entry  of  receipts,  payments,  and  trans- 
fers. 

3646.  Lost  or  stolen  checks;  duplicates. 

3647.  Duplicate  check;  officer  dead. 

3648.  Advances  of  public  moneys  prohibited. 

3651.  Exchange  of  funds  restricted. 

3652.  Premium  on  sales  of  public  securities. 


3623.  Distinct  accounts  required . 

Sec.  3614.  [Bond  of  special  agents.]  Whenever  it  becomes  necessary  for 
the  head  of  any  Department  or  office  to  employ  special  agents,  other  than 
officers  of  the  Army  or  Navy,  who  may  be  charged  with  the  disbm-sement  of 
public  moneys,  such  agents  shall,  before  entering  upon  duty,  give  bond  in  such 
form  and  with  such  security  as  the  head  of  the  Department  or  office  employing 
them  may  approve. —  (4  Aug.,  1854,  c.  242,  s.  14,  v.  10,  p.  573.) 

See  sections  1383  and  1550,  Revised  Statutes,  and  notes  thereto. 

Sec.  3617.  [Moneys  to  be  deposited  without  deduction.]  The  gross  amount 
of  all  moneys  received  from  whatever  source  for  the  use  of  the  United  States, 
except  as  otherwise  provided  in  the  next  section,  shall  be  paid  by  the  officer  or 
agent  receiving  the  same  into  the  Treasury,  at  as  early  a  day  as  practicable, 
wdthout  any  abatement  or  deduction  on  account  of  salary,  fees,  costs,  charges, 
expenses,  or  claim  of  any  description  whatever.  But  nothing  herein  shall 
affect  any  provision  relating  to  the  revenues  of  the  Post-Office  Department.^ 
(3  Mar.,  1849,  c.  110,  s.  1,  v.  9,  p.  398.     28  Sept.,  1850,  c.  78,  s.  3,  v.  9,  p.  507.) 


See    section   3619,    Revised    Statutes,    as    to 
penalty  for  violating  this  section. 


See  sections  86-92,  Criminal  Code,  act  March  4, 
1909  (35  Stat.,  1105),  and  see  section  1624, 
Revised  Statutes,  article  14,  as  to  acts 
constituting  embezzlement. 

Sec.  3618.  [Proceeds  of  sales;  miscellaneous  receipts.]  All  proceeds  of 
sales  of  old  material,  condemned  stores,  supplies,  or  other  public  property 
of  any  kind,  except  the  proceeds  of  the  sale  or  leasing  of  marine  hospitals,  or  of 
the  sales  of  revenue-cutters,  or  of  the  sales  of  commissary  stores  to  the  ofiicers 
and  enlisted  men  of  the  Army,  [or  of  materials,  stores,  or  supplies  sold  to  officers 
and  soldiers  of  the  Army]  or  of  the  sale  of  condemned  Navy  clothing,  or  of  sales 
of  materials,  stores,  or  supplies  to  any  exploring  or  surveying  expedition 
authorized  by  law,  shall  be  deposited  and  covered  into  the  Treasury  as  miscel- 
laneous receipts,  on  account  of  ''proceeds  of  Government  property,"  and  shall 
not  be  withdrawn  or  applied,  except  in  consequence  of  a  subsequent  appro- 
priation made  by  law. —  (3  Mar.,  1847,  c.  48,  s.  1,  v.  9,  p.  171.  20  April,  1866, 
c.  63,  ss.  1,  2,  V.  14,  p.  40.  28  July,  1866,  c.  299,  s.  25,  v.  14,  p.  336.  3  May 
1872,  c.  140,  s.  5,  V.  17,  p.  83.  8  June,  1872,  c.  348,  v.  17,  p.  337.  22  June,  1874, 
c.  413,  V.  18,  J).  200.     27  Feb.,  1877,  c.  69,  v.  19,  p.  249.) 

1095 


Sec.  3621. 


PL  2.  REVISED  STATUTES. 


Public  Moneys. 


The  words  in  brackets  wore  inserted  in  this 

section    (as   reproduced    above   from   the 

second  edition  of  the  Revised  Statutes) 

by  act  of  I'Y-bruary  27,  1877  (19  Stat.,  249). 
Act  June  8,  1890  (29  Stat.,  268),  provided  that 

'■from  the  proceeds  of  sales  of  old  material, 

condemned  stores,  supplies,  or  other  pub- 
lic   property   of   any    kind,    before   being 

deposited    into   the    Treasury,    either    as 

miscellaneous    receipts    on     account     of 

'proceeds  of  Government  property'  or  to 

the  credit  of  the  appropriations  to  which 

such  proceeds  are  by  law  authorized  to  be 

made,  there  may  be  paid  the  expenses  of 

such  sales,  as  approved  by  the  accounting 

officers  of  the  Treasury,  so  as  to  require 

Sec.  3619.  [Penalty  for  withholding  money.]  Every  officer  or  agent  who 
neglects  or  refuses  to  comply  with  the  provisions  of  section  thirty-six  hundred 
and  seventeen  shall  be  subject  to  be  removed  from  office,  and  to  forfeit  to  the 
United  States  any  share  or  part  of  the  moneys  withheld,  to  which  he  might 
otherwise  be  entitled.— (18  July,  1866,  c.  201,  s.  40,  v.  14,  p.  187.) 


only  the  net  proceeds  of  such  sales  to  be 
deposited  into  the  Treasury,  either  as 
miscellaneous  receipts  or  to  the  credit  of 
such  appropriations,  as  the  case  may  be." 

See  section  433,  Revised  Statutes,  and  note 
thereto,  as  to  proceeds  of  sales  of  publica- 
tions of  the  Hydrographic  Office,  Navy 
Department. 

See  sections  418,  1530,  and  1541,  Revised 
Statutes,  and  laws  cited  thereunder,  as  to 
sales  of  vessels  and  old  materials  belonging 
to  the  Navv. 

See  act  of  March  4,  1917  (39  Stat.,  1175),  quoted 
under  section  4750,  Revised  Statutes,  as  to 
proceeds  of  sales  in  certain  cases  being 
credited  to  the  Naval  Pension  Fund. 


See  sections  86-92,  Criminal  Code,  act  March  4, 
1909  (35  Stat.,  1105),  and  see  section  1624, 


Revised  Statutes,  article  14,  as  to  acts  con- 
stituting embezzlement. 


Sec.  3620.  [Duty  of  disbursing  officers.]  It  shall  be  the  duty  of  every  dis- 
bursing officer  having  any  public  money  intrusted  to  him  for  disbursement,  to 
deposit  the  same  with  the  Treasurer  or  some  one  of  the  assistant  treasurers  of 
the  United  States,  and  to  draw  for  the  same  only  as  it  may  be  required  for  pay- 
ments to  be  made  by  him  in  pursuance  of  law  [and  draw  for  the  same  only  in 
favor  of  the  persons  to  whom  paj^ment  is  made;]  and  all  transfers  from  the 
Treasurer  of  the  United  States  to  a  disbursing  officer  shall  be  by  draft  or  war- 
rant on  the  Treasury  or  an  assistant  treasurer  of  the  United  States.  In  places, 
however,  where  there  is  no  treasurer  or  assistant  treasurer,  the  Secretary  of  the 
Treasury  may,  when  he  deems  it  essential  to  the  public  interest,  specially 
authorize  in  writing  the  deposit  of  such  public  money  in  any  other  public 
depository,  or,  in  writing,  authorize  the  same  to  be  kept  in  any  other  manner, 
and  under  such  rules  and  regulations  as  he  may  deem  most  safe  and  effectual 
to  facilitate  the  payments  to  public  creditors. — (14  June,  1866,  c.  122,  s.  1,  v.  14, 
p.  64.     27  Feh.,  1877,  c.  69,  v.  19,  p.  249.) 


The  words  in  brackets  were  inserted  in  this 
section  (as  reproduced  above  from  the 
second  edition  of  the  Revised  Statutes)  by 
act  of  February  27,  1877  (19  Stat.,  249). 


See  sections  86-92,  Criminal  Code,  act  March 
4,  1909  (35  Stat.,  1105),  and  see  section 
1624,  Revised  Statutes,  article  14,  as  to 
acts    constituting   embezzlement. 


Sec.  3621.  [Time  allowed  in  which  to  deposit  money.]  Every  person  who 
shall  have  moneys  of  the  United  States  in  his  hands  or  possession,  and  dis- 
bursing officers  having  moneys  in  their  possession  not  required  for  current 
expenditure,  shall  pay  the  same  to  the  Treasurer,  an  Assistant  Treasurer,  or 
some  public  depositary  of  the  United  States,  without  delay,  and  in  all  cases 
within  thirty  days  of  their  receipt.  And  the  Treasurer,  the  Assistant  Treasurer, 
or  the  public  depositary  shall  issue  duplicate  receipts  for  the  moneys  so  paid, 
transmitting  forthwith  the  original  to  the  Secretary  of  the  Treasury,  and  deliv- 
ering the  duplicate  to  the  depositor:  Provided,  That  postal  revenues  and  debts 
due  to  the  Post-Office  Department  shall  be  paid  into  the  Treasury  in  the  man- 
ner now  required  by  law. 


1096 


PubUc  Moneys.  Pt.  2.  REVISED  STATUTES.  Sec.  3624. 


This  section  was  exjiressly  amended  and 
reenacted  to  read  as  above  bv  the  act  of 
May  28,  1896,  section  5  (29  Stat.,  179.) 

Penalty  for  failure  to  deposit  money,  see  sec- 


tions 86-92,  Criminal  Code,  act  March  4, 
1909  (.35  Stat.,  1105),  and  section  1624, 
Re\ised  Statutes,  article  14,  as  to  acta 
con?titutin<j;  embezzlement. 


Sec.  3622.  [Time  allowed  for  rendering  accounts.]  Every  officer  or  agent  of 
the  United  States  who  receives  public  money  which  he  is  not  authorized  to 
retain  as  salary,  pay,  or  emolument,  shall  render  his  accounts  montlily.  Such 
accounts,  with  the  vouchers  necessary  to  the  correct  and  prompt  settlement 
thereof,  shall  be  sent  by  mail,  or  otherwise,  to  the  Bureau  to  which  they  pertain, 
within  ten  days  after  the  expiration  of  each  successive  month,  and,  after  ex- 
amination there,  shall  be  passed  to  the  proper  accounting  officer  of  the  Treasury 
for  settlement.  Disbursing  officers  of  the  Navy  shall,  however,  render  their 
accounts  and  vouchers  direct  to  the  proper  accounting  officer  of  the  Treasury. 
In  case  of  the  non-receipt  at  the  Treasury,  or  proper  Bureau,  of  any  accounts 
within  a  reasonable  and  proper  time  thereafter,  the  officer  whose  accounts 
are  in  default  shall  be  required  to  furnish  satisfactory  evidence  of  having  com- 
plied with  the  provisions  of  this  section.  The  Secretary  of  the  Treasury  may, 
if  in  his  opinion  the  circumstances  of  the  case  justify  and  rec[uire  it,  extend  the 
time  hereinbefore  prescribed  for  the  rendition  of  accounts.  Nothing  herein 
contained  shall,  however,  be  construed  to  restrain  the  heads  of  any  of  the 
Departments  from  requiring  such  other  returns  or  reports  from  the  officer  or 
agent,  subject  to  the  control  of  such  heads  of  [Department]  [Departments], 
as  the  public  interest  may  require. — (17  July  1862,  c,  199  s.  1,  v.  12,  p.  593. 
2  Mar.,  1867,  Res.  48,  v.  14,  p.  571.  15  July.  1870,  c.  295,  s.  15,  v.  16,  p.  334. 
27  Fe6.,  1877,  c.  69,  v.  19,  p.  249.) 

section  12  (28  Stat.,  209),  which  expressly 
struck  from  this  section  the  words  "The 
Secretary  of  the  Treasury  may,  if  in  his 
opinion  the  circumstances  of  the  case  jus- 
tif\^  and  require  it,  extend  the  time  herein- 
before prescribed  for  the  rendition  of  ac- 
counts, ' '  being  the  next  to  the  last  sentence 
of  this  section  as  given  above.  The  said 
act  of  1894  contained  other  provisions  as  to 
the  rendition  of  accounts  and  authorizing 
the  Secretary  of  the  Treasury  to  relax  re- 
quirements and  waive  delinquency  under 
specified  conditions. 
Penalty  for  failure  to  render  accounts,  see  sec- 
tions 86-92,  Criminal  Code,  act  March  4, 
1909  (35  Stat.,  1105),  and  section  1624,  Re- 
A-ised  Statutes,  article  14,  as  to  acts  consti- 
tuting embezzlement. 


This  section  is  given  above  as  it  appears  in  the 

second  edition  of  the  Revised   Statutes. 

The    word    "Department"    was    stricken 

from  the  original  section  and  the  word 

"Departments"    substituted    therefor    (as 

indicated  bv  brackets)  by  act  of  Februarv 

27,  1877  (19'Stat.,  249). 
Other  amendments  to  this  section  were  ma.de  bv 

act  of  August  30,  1890,  section  4  (26  Stat.', 

413),  which  provided  that  "hereafter  all 

disbursing  officers  of  the  United  States  shall 

render  their  accounts  quarterly;  and  the 

Secretary  of  the  Senate  shall  render  his 

accounts  as  heretofore;  but  the  Secretary 

of  the  Treasury  may  direct  any  or  all  such 

accounts  to  be  rendered  more  frequently 

when  in  his  judgment  the  public  interests 

may  require";  and  by  act  of  July  31,  1894, 

Sec.  3623.  [Distinct  accounts  required.]  All  officers,  agents,  or  other 
persons,  receiving  public  moneys,  shall  render  distinct  accounts  of  the  applica- 
tion thereof,  according  to  the  appropriation  under  which  the  same  may  have 
been  advanced  to  them. —  (3  JMar.,  1809,  c.  28,  s.  1,  v.  2,  p.  535.) 

Sec.  3624.  [Suits  to  recover  money  from  officers.]  Whenever  an}'-  person 
accountable  for  public  money,  neglects  or  refuses  to  pay  into  the  Treasury  the 
sum  or  balance  reported  to  be  due  to  the  United  States,  upon  the  adjustment  of 
his  account,  the  First  Comptroller  of  the  Treasur}'  shall  institute  suit  for  the 
recovery  of  the  same,  adding  to  the  sum  stated  to  be  due  on  such  account,  the 
commissions  of  the  delinquent,  w^hich  shall  be  forfeited  in  every  instance  where 
suit  is  commenced  and  judgment  obtained  thereon,  and  an  interest  of  six  per 

1097 


Sec.  3646.  Pt.  2.  REVISED  STATUTES.  PubHc  Moneys 

centum  per  annum,  from  the  time  of  receiving  the  money  until  it  shall  be  repaid 
into  the  Treasury. —  (3  Mar.,  1797,  c.  20,  s.  1,  v.  1,  p.  512.  U.  S.  v.  Gaussen, 
19  Wall.,  198.) 


Amendment  to  this  section  was  made  by  act  of 
July  31,  lSi)4,  section  4  (28  Stat.,  205), 
which  provided  that  "the  First  Comp- 
troller of  the  Treasury  shall  hereafter  be 
known  as  the  Comptroller  of  the  Treasury. ' ' 


See  notes  to  sections  .346  and  356,  Revised 
Statutes,  as  to  j  urisdiction  of  the  Attorney 
General;  and  note  to  section  236,  Revised 
Statutes,  as  to  jurisdiction  of  Comptroller 
of  the  Treasury. 


Sec.  3639.  [Duties  of  custodians  of  public  moneys.]  The  Treasurer  of  the 
United  States,  all  assistant  treasurers,  and  those  performing  the  duties  of  assist- 
ant treasurer,  all  collectors  of  the  customs,  all  surveyors  of  the  customs,  acting 
also  as  collectors,  all  receivers  of  public  moneys  at  the  several  land-offices,  all 
postmasters,  and  all  public  officers  of  whatsoever  character,  are  required  to 
keep  safely,  Avithout  loaning,  using,  depositing  in  banks,  or  exchanging  for 
other  funds  than  as  specially  allowed  by  law,  all  the  public  money  collected  by 
them,  or  otherwise  at  any  time  placed  in  their  possession  and  custody,  till  the 
same  is  ordered,  by  the  proper  Department  or  officer  of  the  Government,  to  be 
transferred  or  paid  out;  and  when  such  orders  for  transfer  or  payment  are 
received,  faithfully  and  promptly  to  make  the  same  as  directed,  and  to  do  and 
perform  all  other  duties  as  fiscal  agents  of  the  Government  which  may  be  im- 
posed by  any  law,  or  by  any  regulation  of  the  Treasury  Department  made  in 
conformity  to  law.  The  President  is  authorized,  if  in  his  opinion  the  interest 
of  the  United  States  requires  the  same,  to  regulate  and  increase  the  sums  for 
which  bonds  are,  or  may  be,  required  by  law,  of  all  district  attorneys,  collectors 
of  customs,  naval  officers,  and  surveyors  of  customs,  navy  agents,  receivers 
and  registers  of  public  lands,  paymasters  in  the  Army,  commissary-general, 
and  by  all  other  officers  employed  in  the  disbursement  of  the  public  moneys, 
under  the  direction  of  the  War  or  Navy  Departments. —  (6  Aug.,  1846,  c.  90, 
s.  6,  V.  9,  p.  60.  3  July,  1852,  c.  54,  s.  7,  v.  10,  p.  12.  3  Mar.,  1857,  c.  114,  s.  2, 
V.  11,  p.  249.  21  April,  1862,  c.  59,  s.  5,  v.  12,  p.  382.  3  Mar.,  1863,  c.  96,  s.  5, 
V.  12,  p.  770.  4  July,  1864,  c.  24,  s.  5,  v.  13,  p.  383.  18  Feb.,  1869,  c.  33,  s.  4, 
V.  15,  271.) 

See  sections  86-92,  Criminal  Code,  act  March  4,    I    See  sections  1383-1385,  Revised  Statutes,  and 


1909  (.35  Stat.,  1105),  and  section  1624,  Re- 
vised Statutes,  article  14,  as  to  acts  con- 
stituting embezzlement  by  public  officers. 


notes  thereto,  as  to  bonds  of  disbursing 
officers. 


Sec.  3643.  [Entry  of  receipts,  payments,  and  transfers.]  All  persons  charged 
by  law  with  the  safe-keeping,  transfer,  and  disbursement  of  the  public  moneys, 
other  than  those  connected  with  the  Post-Office  Department,  are  required  to 
keep  an  accurate  entry  of  each  sum  received  and  of  each  payment  or  transfer. — 
(6  Aug.,  1846,  c.  90,  s.  10,  v.  9,  p.  63.) 

Sec.  3646.  [Lost  or  stolen  checks;  duplicates.]  That  whenever  any 
original  check  is  lost,  stolen,  or  destroyed  disbursing  officers  and  agents  of  the 
United  States  are  authorized,  within  three  years  from  the  date  of  such  check, 
to  issue  a  duplicate  check,  under  such  regulations  in  regard  to  its  issue  and 
payment,  and  upon  the  execution  of  such  bond,  with  sureties,  to  indemnify 
the  United  States,  and  proof  of  loss  of  original  check,  as  the  Secretary  of  the 
Treasury  shall  prescribe:  Provided,  That  whenever  any  original  check  or  war- 
rant of  the  Post  Office  Department  has  been  lost,  stolen,  or  destroyed  the 

1098 


Public  Mone3rs. 


PL  2.  REVISED  STATUTES. 


Sec.  3648. 


Postmaster  General  may  authorize  the  issuance  of  a  dupHcate  thereof,  at  any 
time  within  three  years  from  the  date  of  such  original  check  or  warrant,  upon 
the  execution  by  the  o\\Tier  thereof  of  such  bond  of  indemnity  as  the  Postmaster 
General  may  prescribe:  Provided  further,  That  when  such  original  check  or 
warrant  does  not  exceed  in  amount  the  sum  of  $50  and  the  payee  or  owner 
is,  at  the  date  of  the  apphcation,  an  officer  or  employee  in  the  service  of  the 
Post  Office  Department,  whether  by  contract,  designation,  or  appointment,  the 
Postmaster  General  may,  in  Ueu  of  an  indemnity  bond,  authorize  the  issuance 
of  a  duplicate  check  or  warrant  upon  such  an  affidavit  as  he  may  describe,  to  be 
made  before  any  postmaster  by  the  payee  or  o^\Tier  of  an  original  check  or 
warrant." 


This  section  was  expressly  amended  and  re- 
enacted  to  read  as  above  by  act  of  March 
21,  1916  (39  Stat.,  37). 


See  section  300,  Re\-ised  Statutes, 
thereto,  as  to  lost  checks. 


and  note 


Sec.  3647.  [Duplicate  check;  officer  dead.]  In  case  the  disbursing  officer 
or  agent  by  whom  such  lost,  destroyed,  or  stolen  original  check  was  issued  is 
dead  or  no  longer  in  the  service  of  the  United  States  it  shall  be  the  duty  of  the 
proper  accounting  officer,  under  such  regulations  as  the  Secretary  of  the  Treasury 
may  prescribe,  to  state  an  account  in  favor  of  the  owner  of  such  original  check 
for  the  amount  thereof  and  to  charge  such  amount  to  the  account  of  such  officer 
or  agent :  Provided,  That  m  case  a  check  drawn  by  any  officer  or  agent  of  the 
Post-Office  Department  is  lost,  stolen,  or  destroyed  a  duplicate  thereof  may 
be  issued  under  regulations  prescribed  by  the  Postmaster-General,  as  set  forth 
in  section  thirty-six  hundred  and  forty-six. 


This  section  was  expressly  amended  and  re- 
enacted    by    act    of    February    23,    1909 

(35  Stat.,  644). 


See  section  300,  Revised  Statutes,  which  is 
similar  to  the  general  provisions  of  this 
section. 


Sec.  3648.  [Advances  of  public  moneys  prohibited.]  No  advance  of 
pubhc  money  shall  be  made  in  any  case  whatever.  And  in  all  cases  of  contracts 
for  the  performance  of  any  service,  or  the  delivery  of  articles  of  any  descrip- 
tion, for  the  use  of  the  United  States,  payment  shall  not  exceed  the  value  of 
the  service  rendered,  or  of  the  articles  delivered  previously  to  such  payment. 
It  shaU,  however,  be  lawful,  under  the  special  du-ection  of  the  President,  to 
make  such  advances  to  the  disbursing  officers  of  the  Government  as  may  be 
necessary  to  the  faithful  and  prompt  discharge  of  their  respective  duties,  and 
to  the  fulfillment  of  the  public  engagements.  The  President  may  also  direct 
such  advances  as  he  may  deem  necessary  and  proper,  to  persons  in  the  military 
and  naval  service  employed  on  distant  stations,  where  the  discharge  of  the  pay 
and  emoluments  to  wliich  they  may  be  entitled  cannot  be  regularly  effected. — 
(31  Jan.,  1823,  c.  9,  s.  1,  v.  3,  p.  723.  Williams  v.  U.  S.,  1  How.,  290;  The 
Floyd  Acceptances,  7  Wall.,  666;  U.  S.  v.  Cutter,  2  Curt.,  617.) 

See  section  1563,  Revised  Statutes,  and  note 

thereto  as  to  advances  of  public  moneys 

to  persons  in  the  naval  service. 
Hereafter    subscriptions    for   newspapers   and 

periodicals  for  the  naval  ser\-ice  may  be 

paid  for  in  advance.     (Act  Mar.  3,  1915, 

38  Stat.,  929.) 
Subscriptions  for   "periodicals"    required   for 

official  use  may  be  paid  in  advance.     (Act 


Mar.  4,  1915,  38  Stat.,  1049.)  See  note  to 
section  192,   Revised  Statutes. 

Secretary  of  the  Navy  may  purchase  mileage 
books,  commutation  tickets,  etc.,  and  pay 
for  same  in  advance  of  travel  by  officers 
and  others  on  official  business.  (Act  Apr. 
27,  1904,  33  Stat.,  403.) 

Secretary  of  the  Na\y  may  make  partial  pay- 
ments diuing  progress  of  work  on  con- 


54641°— 22- 


-70 


1099 


Sec.  3652.  Pt.  2.  REVISED  STATUTES.  Public  Moneys. 


tracts  under  the  Navy  Department  for 
jiiiblic  purposes  not  in  excess  of  value  of 
work  done.  (Act  Aug.  22,  1911,  37  Stat., 
32.)  By  act  of  October  6,  1917,  section  5 
(40  Stat.,  383),  the  Secretary  of  the  Nav\' 


was  authorized  "during  the  period  of  the 
existing  emergency"  to  advance  pay- 
ments to  contractors  for  supplies  in  amounts 
not  exceeding  30  per  centum  of  the  con- 
tract i)rice  and  upon  adequate  security. 


Sec.  3651.  [Exchange  of  funds  restricted.]  No  exchange  of  funds  shall 
be  made  by  any  disbursing  officer  or  agent  of  the  Government,  of  any  grade  or 
denomination  whatsoever,  or  connected  with  any  branch  of  the  public  service, 
other  than  an  exchange  for  gold,  silver,  United  States  notes,  and  national-bank 
notes ;  and  every  such  disbursing  officer,  when  the  means  for  his  disbursements 
are  furnished  to  him  in  gold,  silver.  United  States  notes,  or  national-bank 
notes,  shall  make  his  payments  in  the  moneys  so  furnished;  or  when  they  are 
furnished  to  him  in  drafts,  shall  cause  those  drafts  to  be  presented  at  their 
place  of  payment,  and  properly  paid  according  to  law,  and  shall  make  his  pay- 
ments in  the  money  so  received  for  the  drafts  furnished,  unless,  in  either  case, 
he  can  exchange  the  means  in  his  hands  for  gold  and  silver  at  par.  And  it 
shall  be  the  duty  of  the  head  of  the  proper  Department  immediately  to  suspend 
from  duty  any  disbursing  officer  or  agent  who  violates  the  provisions  of  this 
section,  and  forthwith  to  report  the  name  of  the  officer  or  agent  to  the  Presi- 
dent, with  the  fact  of  the  violation,  and  all  the  circumstances  accompanying 
the  same,  and  within  the  knowledge  of  the  Secretary,  to  the  end  that  such 
officer  or  agent  may  be  promptly  removed  from  office,  or  restored  to  his  trust 
and  the  performance  of  his  duties,  as  the  President  may  deem  just  and  proper. — 
(6  Aug.,  1846,  c.  90,  s.  20,  v.  9,  p.  64.  22  Feb.,  1862,  c.  33,  s.  1,  v.  12,  p.  345.  11 
July,  1862,  c.  142,  s.  1,  v.  12,  p.  532.  3  Mar.,  1863,  c.  73,  s.  3,  v.  12,  p.  710. 
3  June,  1864,  c.  106,  s.  23,  v.  13,  p.  106.     U.  S.  v.  City  Bank,  6  McLean,  130.) 

See  sections  86-92,  Criminal  Code,  act  March  Revised  Statutes,  article  14,  as  to  acts  con- 

4,  1909  (35  Stat.,  1105),  and  section  1624,  stituting  embezzlement  by  public  officers. 

Sec.  3652.  [Premium  on  sales  of  public  securities.]  No  officer  of  the 
United  States  shall,  either  directly  or  indirectly,  sell  or  dispose  of  to  any  person, 
for  a  premium,  any  Treasury  note,  draft,  warrant,  or  other  public  security, 
not  his  private  property,  or  sell  or  dispose  of  the  avails  or  proceeds  of  such 
note,  draft,  warrant,  or  security,  in  his  hands  for  disbursement,  without  making 
return  of  such  premium,  and  accounting  therefor  by  charging  the  same  in  his 
accounts  to  the  credit  of  the  United  States;  and  any  officer  violating  this 
section  shall  be  forthwith  dismissed  from  office. —  (6  Aug.,  1846,  c.  90,  s.  21,  v.  9, 
p.  65.) 


1100 


TITLE  XLI. 


APPROPRIATIONS. 


Sec. 

3660.  Manner  of  communicating  estimates. 

3661.  Estimates  for  printing  and  binding. 

3662.  Estimates  for  salaries. 

3663.  Estimates  for  public  works. 

3664.  Explanation  of  estimates. 

3665.  Amoimt  of  outstanding  appropriations  to 

be  designated. 

3666.  Estimates  for  Xavy  Department. 

3667.  Estimates  of  claims  on  naval   pension 

fund . 
3669.  Estimates  submitted  through  Secretary 
of  the  Treasiuy. 

3672.  Proceeds  of  sales'. 

3673.  Money  requisitions  for  War  and   Xa\-y 

Departments. 
3676.  Appropriations  for  the  Na\-y,  how  con- 
trolled. 


Sec. 

3678.  Application  of  moneys  appropriated. 

3679.  No  expenditures  beyond  appropriations; 

voluntary  services  prohibited. 

3681.  Expenses  of  commissions  and  inquiries. 

3682.  Contingent  funds;  clerical  services. 

3683.  Contingent  frmds;  piu-chases  from. 
3686.  Appropriations  for  foreign  hydrographic 

surveys. 

3689.  Permanent  indefinite  appropriations. 

3690.  Expenditure  of   balances  of  appropria- 

tions. 

3691.  Disposal  of  balances  after  two  years. 

3692.  Proceeds  of  sales,  condemned  clothing, 

etc. 


Sec.  3660.  [Manner  of  communicating  estimates.]  The  heads  of  Depart- 
ments, in  commmiicating  estimates  of  expenditures  and  appropriations  to 
Congress,  or  to  any  of  the  committees  thereof,  shall  specify,  as  nearly  as  may 
be  convenient,  the  som-ces  from  which  such  estimates  are  derived,  and  the 
calculations  upon  which  they  are  founded,  and  shall  discriminate  between  such 
estimates  as  are  conjectiu'al  in  their  character  and  such  as  are  framed  upon 
actual  information  and  applications  from  disbursing  officers.  They  shall  also 
give  references  to  any  law  or  treaty  by  which  the  proposed  expenditures  are, 
respectively,  authorized,  specifying  the  date  of  each,  and  the  volume  and  page 
of  the  Statutes  at  Large,  or  of  the  Revised  Statutes,  as  the  case  may  be,  and 
the  section  of  the  act  in  which  the  authority  is  to  be  found. — (26  Aug.,  1842,  c. 
202,  s.  14,  V.  5,  p.  525.  3  Mar.,  1875,  c.  129,  s.  3,  v.  18,  p.  370.) 
See  sections  429  and  430,  Re\ised  Statutes,  and  laws  noted  thereunder. 

Sec.  3661.  [Estimates  for  printing  and  binding.]  The  head  of  each  of  the 
Executive  Departments,  and  every  other  public  officer  who  is  authorized  to 
have  printing  and  binding  done  at  the  Congressional  Printing-Office  for  the 
use  of  his  Department  or  public  office,  shall  include  in  his  annual  estimate  for 
appropriations  for  the  next  fiscal  year  such  sum  or  sums  as  may  to  him  seem 
necessary  "for  printing  and  binding,  to  be  executed  under  the  direction  of 
the  Congressional  Printer."— (8  May,  1872,  c.  140,  s.  2,  v.  17,  p.  82.) 

The  designation  of  the  "'Congressional  Printer" 
was  changed  to  "Public  Printer"  bv  act 
of  June  20,  1874  (18  Stat,  88 j;  and  he  was 
to  "take  charge  of  and  manage  the  Gov- 

Sec.  3662.  [Estimates  for  salaries.]  All  estimates  for  the  compensation 
of  officers  authorized  by  law  to  be  employed  shall  be  founded  upon  the  express 


ernmeut  Printing  Office"  by  act  of  Julv 
31,  1876  (19  Stat.,  105). 
See  sections  429  and  430,  Revised  Statutes,  and 
laws  noted  thereunder. 


1101 


Sec.  3666.  Pt.  2.  REVISED  STATUTES.  Appropriations. 

provisions  of  law,  and  not  upon  the  authority  of  executive  distribution. — 
(3  Mar.,  1855,  c.  175,  s.  8,  v.  10,  p.  670.) 

See  sections  429  and  430,  Revised  Statutes,  and  laws  noted  thereunder. 

Sec.  3663.  [Estimates  for  public  works.]  Whenever  any  estimate  submitted 
to  Congress  by  the  head  of  a  Department  asks  an  appropriation  for  any  new 
specific  expenditure,  such  as  the  erection  of  a  pu])hc  building,  or  the  construc- 
tion of  any  public  work,  requiring  a  plan  before  the  building  or  work  can  be 
properly  completed,  such  estimate  shall  be  accompanied  by  full  [plan]  [plans] 
and  detailed  estimates  of  the  cost  of  the  whole  work.  All  subsequent  esti- 
mates for  any  such  work  shall  state  the  original  estimated  cost,  the  aggregate 
amount  theretofore  appropriated  for  the  same,  and  the  amount  actually 
expended  thereupon,  as  well  as  the  amount  asked  for  the  current  year  for 
which  such  estimate  is  made.  And  if  the  amount  asked  is  in  excess  of  the 
original  estimate,  the  full  reasons  for  the  excess,  and  the  extent  of  the  antici- 
pated excess,  shall  be  also  stated. — (17  June,  1844,  c.  105,  s.  2,  v.  5.  p.  693. 
3  IVIar.,  1855,  c.  175,  s.  8,  v.  10,  p.  670.     27  Feb.,  1877,  c.  69,  v.  19,  p.  249.) 


This  section  is  reproduced  above  as  it  appears 
in  the  second  edition  of  the  Revised  Stat- 
utes. The  word  "plan  "  was  stricken  from 
the  original  section  and  the  word  "plans" 
substituted     therefor,     as    indicated     by 


brackets,  by  act  of  February  27,  1877  (19 
Stat.,  249). 
See  sections  429  and  430,   Revised  Statutes, 
and    laws     noted     thereunder;     see    also 
section  3734,  Revised  Statutes. 


Sec.  3664.  [Explanation  of  estimates.]  Whenever  the  head  of  a  Depart- 
ment, being  about  to  submit  to  Congress  the  annual  estimates  of  expenditures 
required  for  the  coming  year,  finds  that  the  usual  items  of  such  estimates  vary 
materially  in  amount  from  the  appropriation  ordinarily  asked  for  the  object 
named,  and  especially  from  the  appropriation  granted  for  the  same  objects  for 
the  preceding  year,  and  whenever  new  items  not  theretofore  usual  are  intro- 
duced into  such  estimates  for  any  year,  he  shall  accompany  the  estimates  by 
minute  and  full  explanations  of  all  such  variations  and  new  items,  showing  the 
reasons  and  grounds  upon  which  the  amounts  are  required,  and  the  different 
items  added.— (17  June,  1844,  c.  105,  s.  2,  v.  5,  p.  693.  3  Mar.,  1855,  c.  175, 
s.  8,  V.  10,  p.  670.) 

See  sections  429  and  430,  Re\dsed  Statutes,  and  laws  noted  thereunder. 

Sec.  3665.  [Amount  of  outstanding  appropriations  to  be  designated.]  The 
head  of  each  Department,  in  submitting  to  Congress  his  estimates  of  expendi- 
tui-es  required  in  his  Department  during  the  year  then  approaching,  shall 
designate  not  only  the  amount  required  to  be  appropriated  for  the  next  fiscal 
year,  but  also  the  amount  of  the  outstanding  appropriation,  if  there  be  any, 
which  will  probably  be  required  for  each  particular  item  of  expenditure. — 
(2  June,  1858,  c.  82,  s.  2,  v.  11,  p.  308.) 

See  sections  429  and  430,  Re\'ised  Statutes,  and  laws  noted  thereunder. 

Sec.  3666.  [Estimates  for  Navy  Department.]  The  estimates  for  expendi- 
tures required  by  the  Department  of  the  Navy  for  the  following  purposes  shall 
be  given  in  detail,  and  the  expenditures  made  under  appropriations  therefor 
shall  be  accounted  for  so  as  to  show  the  disbursements  of  each  Bureau  under 
each  respective  appropriation: 

First.  Freight  and  transportation. 

Second.  Printing  and  stationery. 

1102 


Appropriations.  PL  2.  REVISED  STATUTES.  Sec.  3672. 

Third.  Advertising  in  newspapers. 

Fourth.  Books,  maps,  models,  and  drawings. 

Fifth.  Purchase  and  repair  of  fire-engines  and  machinery. 

Sixth.  Repairs  of  and  attending  to  steam-engines  in  navy-yards. 

Seventh.  Purchase  and  maintenance  of  horses  and  oxen,  and  driving 
teams. 

Eighth.  Carts,  timber- wheels,  and  the  purchase  and  repair  of  workmen's 
tools. 

Ninth.  Postage  of  public  letters. 

Tenth.  Fuel,  oil,  and  candles  for  navy-yards  and  shore  stations. 

Eleventh.  Pay  of  watchmen  and  incidental  labor  not  chargeable  to  any 
other  appropriation. 

Twelfth.  Transportation  to,  and  labor  attending  the  delivery  of  pro- 
visions and  stores  on  foreign  stations. 

Thirteenth.  Wharfage,  dockage,  and  rent. 

Fourteenth.  Travehng  expenses  of  officers  and  others  under  orders. 

Fifteenth.  Funeral  expenses. 

Sixteenth.  Store  and  office  rent,  fuel,  commissions,  and  pay  of  clerks  to 
navy-agents  and  store-keepers. 

Seventeenth.  Flags,  awnings,  and  packing-boxes. 

Eighteenth.  Premiums  and  other  expenses  of  recruiting. 

Nineteenth.  Apprehending  deserters. 

Twentieth.  Per-diem  pay  to  persons  attending  courts-martial,  courts  of 
inquiry,  and  other  services  authorized  by  law. 

Twenty-ffi'st.  Pilotage  and  towage  of  vessels,  and  assistance  to  vessels 
in  distress. 

Twenty-second.  Bills  of  health  and  quarantine  expenses  of  vessels  of  the 
United  States  Navy  in  foreign  ports. —  (22  June,  1860,  c.  181,  s.  1,  v.  12,  p.  81.) 
See  sections  429  and  430,  Revised  Statutes,  and  laws  noted  thereunder. 

Sec.  3667.  [Estimates  of  claims  on  naval  pension  fund.]  The  Secretary  of 
the  Navy  shall  annually  submit  to  Congress  estimates  of  the  claims  and  de- 
mands chargeable  upon  and  payable  out  of  the  naval  pension  fund. —  (17  July, 
1870,  c.  238,  V.  16,  p.  222.) 

See  sections  4647,  4750-4757,  Revised  Statutes,       See  sections  429  and  430,   Revised  Statutes, 


as  to  naval  pension  fund. 


and  laws  noted  thereunder. 


Sec.  3669.  [Estimates  submitted  through  Secretary  of  the  Treasury.]  All 
annual  estimates  for  the  public  service  shall  be  submitted  to  Congress  through 
the  Secretary  of  the  Treasury,  and  shall  be  included  in  the  book  of  estimates 
prepared  under  his  direction. — (2  Sept.,  1789,  c.  12,  s.  2,  v.  1,  p.  65.  10  Mar., 
1800,  c.  58,  V.  2,  pp.  79,  80.  7  Jan.,  1846,  Res.  2,  v.  9,  p.  108.  4  Aug.,  1854, 
c.  242,  s.  15,  V.  10,  p.  573.  18  May,  1865,  c.  85,  s.  4,  v.  14,  p.  49.  20  June, 
1874,  c.  328,  V.  18,  pp.  96,  109,  111.  3  Mar.,  1875,  c.  129,  v.  18,  pp.  355,  370. 
15  Aug.,  1876,  c.  289,  s.  4,  v.  19,  p.  200.) 

See  sections  429  and  430,  Revised  Statutes,  and  laws  noted  thereunder. 

Sec.  3672.  [Proceeds  of  sales.]  A  detailed  statement  of  the  proceeds  of 
all  sales  of  old  material,  condenmed  stores,  supplies,  or  other  public  property 
of  any  kind  [except  materials,  stores,  or  supplies  sold  to  officers  and  soldiers 

1103 


See  sections  429  and  430,  Revised  Statutes,  and 
laws  noted  thereunder. 


Sec.  3679.  Pt.  2.  REVISED  STATUTES.  Appropriations. 

of  the  Army,  or  to  exploring  or  surveying  expeditions  authorized  by  hxw] 
shall  be  inoluded  in  the  appendix  to  the  book  of  estimates. — (8  May,  1872,  c. 
140,  s.  5,  V.  17,  p.  83.     27  Feb.,  1877,  c.  69,  v.  19,  p.  249.) 

This  section  is  reproduced  above  as  it  appears 
in  the  second  edition  of  the  Re\dsed 
Statutes.  The  words  enclosed  in  brackets 
were  inserted  in  the  original  section  by 
act  of  February  27,  1877  (19  Stat.,  249). 

Sec.  3673.  [Money  requisitions  for  War  and  Navy  Departments.]  All 
moneys  appropriated  for  the  use  of  the  War  and  Navy  Departments  shall  be 
drawn  from  the  Treasury,  by  warrants  of  the  Secretary  of  the  Treasury,  upon 
the  requisitions  of  the  Secretaries  of  those  Departments,  respectively,  coun- 
tersigned by  the  Second  Comptroller  of  the  Treasury,  and  registered  by  the 
proper  Auditor. — (3  Mar.,  1817,  c.  45,  ss.  5,  9,  v.  3,  p.  367.  7  May,  1822,  c. 
90,  s.  3,  V.  3,  p.  689.     4  Mar.,  1874,  c.  44,  v.  18,  p.  19.) 

Amendment  to  this  section  was  made  by  act  of   |  issue  reqiiisitions  for  advances  to  disbiu*sing 

July  31,  1894,  section  4  (28  Stat.,  205), 
which  abolished  the  office  of  Second  Comp- 
troller of  the  Treasury  and  created  the 
office  of  Comptroller  of  the  Treasury. 

By  act  of  June  19,  1878  (20  Stat.,  167-168),  the 
Secretary  of  the  Na\'y  was  authorized  to 


ofiicers  under  a  "General  account  of  ad- 
vances," not  to  exceed  the  total  appropria- 
tion for  the  Navy,  the  amount  so  advanced 
to  be  charged  to  the  proper  appropriation 
and  to  be  returned  to  ' '  General  accoimt  of 
advances"  by  pay  and  counter- warrant. 

Sec.  3676.  [Appropriations  for  the  Navy,  how  controlled.]  All  appro- 
priations for  specific,  general,  and  contingent  expenses  of  the  Navy  Depart- 
ment shall  be  under  the  control  and  expended  by  the  direction  of  the  Secretary 
of  the  Navy,  and  the  appropriation  for  each  Bm^eau  shall  be  kept  separate  in 
the  Treasury.— (5  July,  1862,  c.  134,  s.  5,  v.  12,  p.  511.) 


When  one  bureau  of  the  War  or  Navy  Depart- 
ments procures  materials  or  performs  serv- 
ices for  another  bureau  of  such  Departments, 
the  funds  of  the  bureau  or  Department  for 
which  the  materials  are  to  be  procured  or 
the  service  performed,  may  be  placed  sub- 
ject to  the  requisition  of  the  biu"eau  or  De- 
partment making  the  procurement  or  per- 


forming the  service  for  direct  expenditure 
by  it.     (Act  Mar.  4,  1915,  38  Stat.,  1084.) 

See  note  to  section  3673,  Revised  Statutes,  as  to 
"General  account  of  advances,"  and  note 
to  section  3689,  as  to  "Naval  supply 
account  fund." 

See  note  to  section  419,  Revised  Statutes,  under 
"Duties  of  the  various  bureaus." 


Sec.  3678.  [Application  of  moneys  appropriated.]  All  sums  appropriated  for 
the  various  branches  of  expenditure  in  the  public  service  shall  be  applied  solely 
to  the  objects  for  wliich  they  are  respectively  made,  and  for  no  others. —  (3  Mar., 
1809,  c.  28,  s.  1,  V.  2,  p.  535.     12  Feb.,  1868,  c.  8,  s.  2,  v.  15,  p.  36.) 

"Pay  of  the  Navy  "  shall  hereafter  be  used  only  for  its  legitimate  purpose,  as  provided  by  law. 
(Act  June  19,  1878,  20  Stat.,  167.) 

Sec.  3679.  [No  expenditures  beyond  appropriations ;  voluntary  services  prohib- 
ited.] No  Executive  Department  or  other  Government  establishment  of  the 
United  States  shall  expend,  in  any  one  fiscal  year,  any  sum  in  excess  of  appro- 
priations made  by  Congress  for  that  fiscal  year,  or  involve  the  Government  in  any 
contract  or  other  obligation  for  the  future  payment  of  money  in  excess  of  such 
appropriations  unless  such  contract  or  obligation  is  authorized  by  law.  Nor 
shall  any  Department  or  any  officer  of  the  Government  accept  voluntary  service 
for  the  Government  or  employ  personal  service  in  excess  of  that  authorized  by 
law,  except  in  cases  of  sudden  emergency,  involving  the  loss  of  human  life  or  the 
destruction  of  property.  All  appropriations  made  for  contingent  expenses  or 
other  general  purposes,  except  appropriations  made  in  fulfillment  of  contract 

1104 


Appropriations. 


PL  2.  REVISED  STATUTES. 


Sec.  3683. 


obligations  expressly  authorized  by  law,  or  for  objects  required  or  authorized  by 
law  without  reference  to  the  amounts  annually  appropriated  therefor,  shall,  on  or 
before  the  beginning  of  each  fiscal  year,  be  so  apportioned  by  monthly  or  other 
allotments  as  to  prevent  expenditures  in  one  portion  of  the  year  which  may  neces- 
sitate deficiency  or  additional  appropriations  to  complete  the  service  of  the  fiscal 
year  for  which  said  appropriations  are  made;  and  all  such  apportionments  shall 
be  adhered  to  and  shall  not  be  waived  or  modified  except  upon  the  happening 
of  some  extraordinary  emergency  or  unusual  circimistance  which  could  not 
be  anticipated  at  the  time  of  making  such  apportionment,  but  this  provision 
shall  not  applj^  to  the  contingent  appropriations  of  the  Senate  or  House  of 
Representatives;  and  in  case  said  apportionments  are  waived  or  modified  as 
herein  provided,  the  same  shall  be  waived  or  modified  in  ■uTiting  by  the  head 
of  such  Executive  Department  or  other  Government  establishment  having 
control  of  the  expenditure,  and  the  reasons  therefor  shall  be  fully  set  forth  in 
each  particular  case  and  communicated  to  Congress  in  connection  with  esti- 
mates for  any  additional  appropriations  required  on  account  thereof.  Any 
person  violating  any  provision  of  this  section  shall  be  summarily  removed  from 
office  and  may  also  be  punished  by  a  fine  of  not  less  than  one  hundred  dollars 
or  by  imprisonment  for  not  less  than  one  month. 

This  section  was  expressly  amended  and  re-  tain  pro\dsions  of  the  act  of  February  27, 

enacted  to  read  as  above  by  act  of  Febru-  1906  (34  Stat.,  49),  by  vAich  section  3679 

ary  27,  1906,  section  3  (34  Stat.,  49).  was  reenacted  to  read  as  above  set  forth. 

Seeact  August  23,  1912,  section  6  (37  Stat.,  414),  See  sections  3732  and  3733,  Revised  Statutes, 

as  to  apportionment  of  contingent  funds  of  and  act  March  4,  1909,  section  98  (35  Stat., 

Departments,  which  expressly  modifies  cer-  1106). 

Sec.  3681.  [Expenses  of  commissions  and  inquiries.]  No  accounting  or  dis- 
bursing officer  of  the  Government  shall  allow  or  pay  any  account  or  charge 
whatever,  groAving  out  of,  or  in  any  way  connected  with,  any  commission  or 
inquiry,  except  courts-martial  or  courts  of  inquiry  in  the  military  or  naval 
service  of  the  United  States,  until  special  appropriations  shall  have  been  made 
by  law  to  pay  such  accounts  and  charges.  This  section,  however,  shall  not 
extend  to  the  contingent  fund  connected  with  the  foreign  intercourse  of  the  Gov- 
ernment, placed  at  the  disposal  of  the  President. —  (26  Aug.,  1842,  c.  202,  s. 
25,  V.  5,  p.  533.) 

See  act  of  March  4,  1909  (35  Stat.,  1027),  as  to 
payment  of  compensation  or  expenses  of 
any  commission,  council,  board,  or  other 
similar  body,  unless  authorized  by  law. 


See  section  1624,  Revised  Statutes  (Articles  for 
the  Government  of  the  Navy),  as  to  courts- 
martial  and  courts  of  inquiry  in  the  naval 
service. 


Sec.  3682.  [Contingent  funds ;  clerical  services.]  No  moneys  appropriated 
for  contingent,  incidental,  or  miscellaneous  pm-poses  shall  be  expended  or  paid 
for  official  or  clerical  compensation. —  (12  July,  1870,  c.  251,  s.  3,  v.  16,  p.  250.) 


See  act  of  August  5,  1882,  section  4  (22  Stat., 
255),  as  to  use  of  contingent  funds  for  cleri- 
cal services;  and  act  of  August  23,  1912,  sec- 
tion 5  (37  Stat.,  414),  as  to  penalty  for  vio- 
lation of  the  former  act. 


See  notes  to  sections  169  and  416,  Revised 
Statutes. 


Sec.  3683.  [Contingent  funds ;  purchases  from.]  No  part  of  the  contingent 
fund  appropriated  to  any  Department,  Bureau,  or  office,  shall  be  applied  to  the 
purchase  of  any  articles  except  such  as  the  head  of  the  Department  shaU  deem 
necessary  and  proper  to  carry  on  the  business  of  the  Department,  Bureau,  or 


1105 


Sec.  3689. 


Pt.  2.  REVISED  STATUTES. 


Appropriations. 


office,  and  shall,  by  written  order,  direct  to  be  procured. —  (26  Aug.,  1842,  c. 
202,  s.  19,  V.  5,  p.  527.) 

Sec.  3686.  [Appropriations  for  foreign  hydrographic  surveys.]  All  appro- 
priations made  for  tlie  preparation  or  publication  of  foreign  hydrographic 
surveys  shall  only  be  applicable  to  their  object,  upon  the  approval  by  the 
Secretary  of  the  Navy,  after  a  report  from  three  competent  naval  officers,  to 
the  effect  that  the  original  data  for  proposed  charts  are  such  as  to  justify  their 
publication;  and  it  is  hereby  made  the  duty  of  the  Secretary  of  the  Navy  to 
order  a  board  of  three  naval  officers  to  examine  and*  report  upon  the  data, 
before  he  shall  approve  of  any  application  of  money  to  the  preparation  or 
publication  of  such  charts  or  hydrographic  surveys. —  (21  Feb.,  1861,  c.  49,  s. 
7,  V.  12,  p.  150.) 

A  pro\dsion  substantially  identical  ■with  this       See  sections  431-433,   Revised   Statutes,   and 
section  was  embodied  in  the  public  print- 
ing and  binding  act  of  January  12,  1895, 
section  78  (28.  Stat.,  621). 

Sec.  3689.  [Permanent  indefinite  appropriations.]  There  are  appropriated, 
out  of  any  moneys  in  the  Treasury  not  otherwise  appropriated,  for  the  purposes 
hereinafter  specified,  such  sums  as  may  be  necessary  for  the  same  respectively; 
and  such  appropriations  shall  be  deemed  permanent  annual  appropriations. 


See  sections  431-433, 
notes  thereto. 


UNDER   THE    NAVY    DEPARTMENT. 

Indemnity  to  seamen  and  marines  for  lost  clothing : 

To  allow  and  pay  to  each  person,  not  an  officer,  employed  on  a  vessel  of  the 
United  States,  sunk  or  otherwise  destroyed,  and  whose  personal  effects  have 
been  lost,  a  sum  not  exceeding  sixty  dollars.  In  the  event  of  the  death  of 
the  person,  this  sum  is  to  be  paid  to  his  proper  legal  representatives. —  (4  July, 
1864,  c.  248,  ss.  2,  3,  v.  13,  p.  390.) 
Prize-money  to  captors: 

For  one  moiety  of  the  proceeds  of  prizes  captured  by  vessels  of  the  United 
States,  to  be  distributed  to  the  officers  and  crews  thereof,  in  conformity  to 
the  provisions  of  Title  "Prize;"  also,  the  proceeds  of  derelict  and  salvage  cases 
adjudged  by  the  courts  of  the  United  States  to  salvors. —  (30  June,  1864,  c. 
174,  s.  16,  V.  13,  p.  311.) 


The  omitted  portions  of  this  section  do  not 
relate  to  the  Navy  Department. 
Indemnity  for  seamen  and  marines,  lost 
clothing. — The  provision  of  this  section  for 
indemnity  to  seamen  and  marines  for  lost 
clothing  was  to  provide  reimbursement  in  the 
cases  authorized  by  section  288,  Revised 
Statutes.  That  section  was  expressly  repealed 
(see  note  thereunder)  by  act  of  October  6,  1917 
(40  Stat.,  390),  which  act  also  provided  that  "in 
cases  involving  persons  in  the  Navy  reimburse- 
ment in  money  shall  be  made  from  the  appro- 
priation '  Pay  of  the  Navy, '  and  reimbursement 
in  kind  shall  be  made  from  the  appropriation 
'outfits  on  first  enlistment,'  and  in  cases  in- 
volving persons  in  the  Marine  Corps  reimburse- 
ment in  money  shall  be  made  from  the  appro- 
priation '  Pay,  Marine  Corps, '  and  reimburse- 
ment in  kind  shall  be  made  from  the  appro- 


f)riation  '  Clothing,  Marine  Corps, '  respective- 
y,  current  at  the  time  the  claim  covering  such 
loss,  damage,  or  destruction  is  paid.  " 

Prize  money  to  captors. — The  provision  of 
this  section  to  cover  payment  of  prize  money  to 
captors  was  superseded  by  the  naval  personnel 
act  of  March  3,  1899,  section  13  (30  Stat.,  1007), 
which  repealed  "all  provisions  of  law  author- 
izing the  distribution  among  captors  of  the 
whole  or  any  portion  of  the  proceeds  of  vessels, 
or  any  property  hereafter  captured,  condemned 
as  prize. " 

Naval  hospital  fund. — By  sections  1614, 
4808,  and  4809,  Revised  Statutes,  and  act  of 
June  7,  1900  (31  Stat.,  697),  provision  was 
made  for  a  fund  for  the  maintenance  of  naval 
hospitals,  known  as  the  "Naval  hospital  fund.  " 
Expenses  of  discharged  naval  prison- 
ers.—By  act  of  March  3,  1909  (35  Stat.,  756), 


1106 


Appropriations . 


Pt.  2.  REVISED  STATUTES. 


Sec.  3691. 


pro\-ision  was  made  for  pajinent  of  expenses  of 
discharged  naval  prisoners  from  fines  and  for- 
feitures imposed  by  naval  courts-martial, 
modifying  the  laws  aisove  quoted  \\'ith  respect 
to  the  naval  hospital  fund,  as  such  fines  and 
forfeitm-es  had  previously  gone  in  their  en- 
tirety to  the  latter  fund. 

Profits  on  sales  from  ships'  stores. — By 
act  of  June  24,  1910  (36  Stat.,  619),  it  was  pro- 
vided that  profits  on  sales  from  ships '  stores  in 
the  Navy  may  be  expended  in  the  discretion 
of  the  Secretary  of  the  Navy  for  the  amusement, 
comfort,  and  contentment  of  the  enlisted  force. 

Receipts  from  post  laundries,  Marine 
Corps.— See  act  of  July  11,  1919  (41  Stat.,  155- 
156). 

Clothing  and  small  stores. — By  acts  of 
February  14,  1879  (20  Stat.,  288),  and  June  30, 
1890  (26  Stat.,  197),  a  "clothing  and  small 
stores  fund"  was  credited  for  the  Na-vy,  to  be 
credited  with  the  value  of  issues  of  clothing 
and  small  stores,  the  resources  of  the  fund  to  be 
used  in  the  purchases  of  supplies  of  clothing 
and  small  stores  for  issue.  This  fund  was  in- 
creased by  acts  of  June  8,  1898  (30  Stat.,  439), 
and  Januarj'  5,  1899  (30  Stat.,  781). 

By  naval  appropriation  act  of  June  4,  1920 
(41  Stat.,  815),  it  was  provided  that  "during 
the  fiscal  year  ending  June  30,  1921,  the  cloth- 
ing and  small  stores  fund  shall  be  charged  with 


the  value  of  all  issues  of  clothing  and  small 
stores  made  to  enlisted  men  and  apprentice 
seamen  rec}uired  as  outfits  on  first  enlistment, 
not  to  exceed  $100  each,  and  for  civilian  cloth- 
ing not  to  exceed  $15  per  man  to  men  given 
discharges  for  bad  conduct,  undesirability, 
or  inaptitude,  and  the  uniform  gratuity  paid 
to  officers  of  the  Naval  Reserve  Force." 

See  also  section  3692,  Revised  Statutes,  as 
amended. 

Naval  suppy  account  fund  shall  be  charged 
with  the  cost  of  all  stores  procured  for  and  cred- 
ited with  the  value  of  all  issues  or  sales  made 
from  the  naval  supply  account.  (Act  Mar.  1, 
1921,  41  Stat.,  1169;  see  also  acts  June  25,  1910, 
36  Stat.,  792;  Mar.  4,  1911,  36  Stat.,  1279;  June 
30,  1914,  38  Stat.,  405.) 

Naval  pension  fund. — See  section  4750, 
Revised  Statutes,  and  note  thereto. 

Navy  petroleum  fund. — See  act  of  August 
25,  1914  (38  Stat.,  709). 

Permanent  appropriations  defined. — As 
to  what  appropriations  are  to  be  construed  as 
permanent,  or  available  continuously  without 
reference  to  a  fiscal  year,  see  act  of  August  24, 
1912,  section  7  (37  Stat.,  487). 

Reserve  material,  Navy. — See  acts  of 
March  4,  1917  (39  Stat.,  1183),  and  June  15, 
1917  (40  Stat.,  211). 


Sec.  3690.  [Expenditure  of  balances  of  appropriations.]  All  balances  of 
appropriations  contained  in  the  annual  appropriation  bills  and  made  specifically 
for  the  service  of  any  fiscal  year,  and  remaining  miexpended  at  the  expiration 
of  such  fiscal  year,  shall  only  be  applied  to  the  payment  of  expenses  properly 
incurred  during  that  year,  or  to  the  fulfillment  of  contracts  properly  made 
within  that  year;  and  balances  not  needed  for  such  purposes  shall  be  carried 
to  the  surplus  fund.  This  section,  however,  shall  not  apply  to  appropriations 
known  as  permanent  or  indefinite  appropriations. —  (12  July,  1870,  c.  251,  s.  5, 
V.  16,  p.  2.51.) 

See  note  to  section  3691,  Revised  Statutes. 

Sec.  3691.  [Disposal  of  balances  after  two  years.]  All  balances  of  appro- 
priations which  shall  have  remained  on  the  books  of  the  Treasury,  without 
being  drawn  against  in  the  settlement  of  accounts,  for  two  years  from  the  date 
of  the  last  appropriation  made  by  law,  shall  be  reported  by  the  Secretary  of  the 
Treasury  to  the  Auditor  of  the  Treasury,  whose  duty  it  is  to  settle  accounts 
thereunder,  and  the  Auditor  shall  examine  the  books  of  his  Office,  and  certify 
to  the  Secretary  whether  such  balances  will  be  required  in  the  settlement  of 
any  accounts  pending  in  liis  office;  and  if  it  appears  that  such  balances  wWl  not 
be  required  for  this  purpose,  then  the  Secretary  may  include  such  balances  in 
his  surplus-fund  warrant,  whether  the  head  of  the  proper  Department  shall 
have  certified  that  it  may  be  carried  into  the  general  Treasury  or  not.  But 
no  appropriation  for  the  payment  of  the  interest  or  principal  of  the  public  debt, 
or  to  which  a  longer  duration  is  given  by  law,  shall  be  thus  treated. —  (Ibid., 
s.  6.     20  June,  1874,  c.  328,  v.  18,  p.  110.) 


Other  provisions  as  to  the  disposition  of  unex- 
pended balances  of  appropriations  are 
contained  in  acts  of  June  20,  1874,  section 


5  (18  Stat.,  110),  Julv  26,  1886,  section  2 
(24  Stat.,  157),  and  August  24,  1912,  sec- 
tion 7  (37  Stat.,  487). 


1107 


Sec.  3692. 


Pt.  2.  REVISED  STATUTES. 


Appropriations. 


The  reappropriation  aiul  diversion  of  the 
unexpended  l)alance  of  any  appropriation 
to  a  purpose  other  than  that  for  which  it 
was  orifirinallv  made  shall   be    construed 


and  accounted  as  a  new  appropriation,  and 
the  unexpended  ])alance  shall  be  reduced 
by  the  sum  proposed  to  be  so  diverted. 
(Act  Mar.  4,  1915,  sec.  4,  38  Stat.,  1161.) 


Sec.  3692.  [Proceeds  of  sales,  condemned  clothing,  etc.]  All  moneys 
received  from  the  leasing  or  sale  of  marine  hospitals,  or  the  sale  of  revenue- 
cutters,  or  from  the  sale  of  commissary  stores  to  the  officers  and  enlisted  men 
of  the  Army,  [or  from  the  sale  of  materials,  stores,  or  supplies  sold  to  officers 
and  soldiers  of  the  Army,]  or  from  sales  of  condemned  clothing  of  the  Navy,  or 
from  sales  of  materials,  stores,  or  supplies  to  any  exploring  or  surveying  expe- 
dition authorized  by  law,  shall  respectively  revert  to  that  appropriation  out  of 
which  they  were  originally  expended,  and  shall  be  applied  to  the  purposes  for 
which  they  are  appropriated  by  law. —  (3  Mar.,  1847,  c.  48,  s.  1,  v.  9,  p.  171. 
20  April,  i866,  c.  63,  ss.  1,  2,  v.  14,  p.  40.  28  July,  1866,  c.  299,  s.  25,  v.  14, 
p.  336.  8  May,  1872,  c.  140,  s.  5,  v.  17,  p.  83.  8  June,  1872,  c.  348,  v.  17,  p. 
337.  3  3/ar.,"  1875,  c.  130,  v.  18,  p.  388.  3  Mar.,  1875,  c.  131,  v.  18,  p.  410. 
27  Feb.,  1877,  c.  69,  v.  19,  p.  249.) 

This  section  is  reproduced  above  as  it  appears  were  inserted  in  the  original  section  by 

in  the  second  edition  of  the  ReAased  Stat-  act  of  February  27,  1877  (19  Stat.,  249). 

utes.     The    words    inclosed    in    brackets       See  note  to  section  3689,  Revised  Statutes. 


1108 


TITLE  XLIII. 


PUBLIC  CONTRACTS. 


Sec. 

3709.  Advertisernfints  for  proposals. 

3710.  Opening  bids. 

3711.  Inspection  of  fuel  in  the  District  of  Colum- 

bia. 

3712.  Appointments  to  be  notified  to  account- 

ing officer. 

3713.  No  payment  ^vithout  certificate. 

3714.  Contracts  for  military  or  naval  service. 

3718.  Naval  supplies;  advertisements;   lowest 

bidder;  security. 

3719.  Guarantee    of    bid;    delinquent   bidder; 

new  contract. 

3720.  Delinquent  contractor;  penalty. 

3721.  Purchases  without  advertisement. 

3722.  Rejection  of  bids;  not  manufacturers  or 

regular    dealers;    etc.     Opening    bids. 

3723.  Contracts    for    foreign    supplies;    adver- 

tisement, etc. 

3724.  Rejection  of  excessive  bids. 

3725.  Hemp;  American  growth  or  manufacture. 

3726.  Preserved  meats;  butter;  etc. 

3727.  Flour  and  bread. 

3728.  Home  manufactures  preferred;  purchase 

of  fuel. 

3729.  Bunting. 

3730.  Relinquishment  of  reservations  on  deliv- 

eries. 


3731 .  Name  of  contractor  to  appear  on  supplies. 

3732.  Unauthorized  contracts;  inadequate  ap- 

propriation;   exceptions. 

3733.  Erection,  repair,  or  furnishing  of  build- 

ings and  improvements;  specific  ap- 
propriation required. 

3734.  Restrictions  on  new  buildings. 

3735.  Contracts  limited  to  one  year. 

3736.  Restriction  on  purchases  of  land. 

3737.  No  transfer  of  contract. 

3738.  Eight  hours  to  be  day's  work. 

3739.  Members  of  Congress  not  to  be  interested 

in  contracts. 

3740.  What  interest  Members  of  Congress  may 

have. 

3741.  Stipulation  that  no  Member  of  Congress 

has  an  interest. 

3742.  Officer  making  contract  with  Member  of 

Congress;  penalty. 

3743.  Contracts  to  be  filed  with  Auditors. 

3744.  Contracts  to  be  in  writing;  copy  filed  in 

Returns  Office. 

3745.  Oath  to  copy  of  contract. 

3746.  Penalty  for  omitting  returns. 

3747.  Instructions  to  officers  making  contracts. 


Sec.  3709.  [Advertisements  for  proposals.]  All  purchases  and  contracts  for 
supplies  or  services,  in  any  of  the  Departments  of  the  Government,  except  for 
personal  services,  shall  be  made  by  advertising  a  sufficient  time  previously  for 
proposals  respecting  the  same,  when  the  public  exigencies  do  not  require  the 
immediate  delivery  of  the  articles,  or  performance  of  the  service.  When  imme- 
diate deHvery  or  performance  is  required  by  the  public  exigency,  the  articles  or 
service  required  may  be  procured  by  open  purchase  or  contract,  at  the  places 
and  in  the  manner  in  which  such  articles  are  usually  bought  and  sold,  or  such 
services  engaged,  between  individuals. —  (2  Mar.,  1861,  c.  84,  s.  10,  v.  12,  p.  220. 
22  June,  1874,  c.  389,  v.  18,  j^.  177.) 


This  section  was  expressly  amended  by  act  of 
January  27,  1894  (28  Stat.,  33),  by  adding 
thereto  the  following:  "And  the  advertise- 
ment for  such  proposals  shall  be  made  by  all 
the  Executive  Departments,  including  the 
Department  of  Labor,  the  United  States 
Fish  Commission,  the  Interstate  Commerce 
Commission,  the  Smithsonian  Institution, 
the  Government  Printing  Ofiice,  the  gov- 
ernment of  the  District  of  Columbia,  and 
the  superintendent  of  the  State,  War,  and 
Navy  building,  except  for  paper  and  mate- 
rials for  use  of  the  Government  Printing 
Office,  and  materials  used  in  the  work  of 
the  Bureau  of  Engraving  and   Printing, 


which  shall  continue  to  be  advertised  for 
and  purchased  as  now  provided  by  law,  on 
the  same  days  and  shall  each  designate  two 
o'clock  post  meridian  of  such  days  for  the 
opening  of  all  such  proposals  in  each  De- 
partment and  other  Government  establish- 
ments in  the  city  of  Washinoton;  and  the 
Secretary  of  the  Treasury  shall  designate 
the  day  or  days  in  each  year  for  the  opening 
of  such  proposals  and  give  due  notice  there- 
of to  the  other  Departments  and  Govern- 
ment establishments.  Such  proposals  shall 
be  opened  in  the  usual  way  and  schedules 
thereof  duly  prepared  and,  together  with 
the  statement  of  the  proposed  action  of 


1109 


Sec.  3713. 


PL  2.  REVISED  STATUTES. 


Contracts. 


each  Department  and  Government  estiib- 
lishment  thereon,  sliall  be  submitted  to  a 
board,  consi^tinu;  of  one  of  the  Assistant 
Secretaries  of  the  Treasury  and  Interior 
Departments  and  one  of  the  Assistant 
Postmasters  General,  who  shall  be  desip;- 
nated  by  the  heads  of  said  Departments 
and  the  Postmaster  General,  respectively, 
at  a  meeting;  to  be  called  by  the  official  of 
the  Treasury  Department,  who  shall  be 
chairman  thereof,  and  said  board  shall 
carefully  examine  and  compare  all  the 
proposals  so  suV)mitted  and  recommend 
the  acceptance  or  rejection  of  any  or  all  of 
said  proposals.  And  if  any  or  all  of  such 
proposals  shall  be  rejected,  advertisements 
for  proposals  shall  again  be  invited  and 
proceeded  with  the  in  same  manner." 
Further  amendment  was  made  by  act  of  April 
21,  1894  section  2  (28  Stat.,  62),  which 
provided  that  said  amendatory  act  of  Jan- 
uary 27,  1894,  above  quoted,  "be,  and  the 
same  is  hereby,  so  amended  that  the  pro- 
visions thereof  shall  apply  only  to  adver- 


tisements for  proposals  for  fuel,  ice,  sta- 
tionery and  other  miscellaneous  supplies  to 
be  purchased  at  Washington  for  the  use  of 
the  Executive  Departments  and  other  Gov- 
ernment establishments  therein  named; 
and  no  advertisements  made  or  contract 
awarded  or  to  be  awarded  thereon  since 
January  twenty-seven,  eighteen  hundred 
and  ninety-four,  in  accordance  with  the 
laws  in  force  prior  to  said  date,  shall  be  de- 
clared to  be  illegal  or  invalid  for  non-com- 
pliance with  said  law  of  January  twenty- 
seventh,  eighteen  hundred  and  ninety- 
four." 

Section  3709,  Re\Tsed  Statutes,  as  thus  amend- 
ed, was  expressly  modified  by  act  of  June 
17,  1910,  section  4  (36  Stat.,  531),  which 
contained  new  proAosiona  as  to  the  procure- 
ment of  supplies  for  the  Executive  Depart- 
ments and  other  Government  establish- 
ments in  Washington. 

As  to  publication  of  advertisements  in  news- 
papers, etc.,  see  sections  3718,  382G,  and 
3828,  Revised  Statutes. 


Sec.  3710.  [Opening  bids.]  Whenever  proposals  for  supplies  have  been 
solicited,  the  parties  responding  to  such  solicitation  shall  be  duly  notified  of  the 
time  and  place  of  opening  the  bids,  and  be  permitted  to  be  present  either  in 
person  or  by  attorney,  and  a  record  of  each  bid  shall  then  and  there  be  made. — 
(31  Jan.,  1868,  Res.  8,  v.  15,  p.  246.) 

See  sections  3718  and  3722,  Revised  Statutes. 

Sec.  3711.  [Inspection  of  fuel  in  the  District  of  Columbia.]  It  shall  not  be 
lawful  for  any  officer  or  person  in  the  civil,  military,  or  naval  service  of  the 
United  States  in  the  District  of  Columbia  to  purchase  anthracite  or  bituminous 
coal  or  wood  for  the  pubfic  service  except  on  condition  that  the  same  shall, 
before  delivery,  be  inspected  and  weighed  or  measured  by  some  competent 
person,  to  be  appointed  by  the  head  of  the  department  or  chief  of  the  branch  of 
the  service  for  which  the  pm'chase  is  made  from  among  the  persons  authorized 
to  be  employed  in  such  department  or  branch  of  the  service.  The  person  ap- 
pointed under  this  section  shall  ascertain  that  each  ton  of  coal  weighed  by  him 
shall  consist  of  two  thousand  two  hundred  and  forty  pounds,  and  that  each 
cord  of  wood  to  be  so  measured  shall  be  of  the  standard  measure  of  one  hundred 
and  twenty-eight  cubic  feet.  Each  load  or  parcel  of  wood  or  coal  weighed  and 
measured  by  him  shall  be  accompanied  by  his  certificate  of  the  number  of  tons 
or  pounds  of  coal  and  the  number  of  cords  or  parts  of  cords  of  wood  in  each  load 
or  parcel. 


This  section  was  expressly  amended  and  re- 
enacted  to  read  as  above  by  act  of  March 
15,  1898,  section  6  (30  Stat.,  316). 


See  section  3728,  Revised  Statutes,  and  acts 
of  May  28,  1908,  section  2  (3-5  Stat.,  424), 
and  October  20,  1914  (38  Stat.,  741),  as  to 
coal  for  the  Navy. 

Sec.  3712.  [Appointments  to  be  notified  to  accounting  officer.]  The  proper 
accounting  officer  of  the  Treasury  shall  be  furnished  with  a  copy  of  the  ap- 
pointment of  each  inspector,  weigher,  and  measurer  appointed  under  the  pre- 
ceding section. —  (Ibid.,  s.  2.) 

Sec.  3713.  [No  payment  without  certificate.]  It  shall  not  be  lawful  for  any 
accounting  officer  to  pass  or  allow  to  the  credit  of  any  disbursing  officer  in  the 


1110 


See  section  3743,  Re\'ised  Statutes,  as  amended, 
with  respect  to  filing  of  contracts  in  the 
Treasury  Department. 

See  generally  section  418,  Revised  Statutes, 
and  note  thereto. 

See  act  of  March  4,  1917  (39  Stat.,  1193),  and 
note  to  act  of  August  3,  1886  (24  Stat., 
215),  as  to  changes  in  contracts. 


Contracts.  Pt.  2.  REVISED  STATUTES.  Sec.  3718. 

District  of  Columbia  any  money  paid  by  him  for  pm'chase  of  anthracite  or 
bituminous  coal  or  for  wood,  unless  the  voucher  therefor  is  accompanied  by  a 
certificate  of  the  proper  inspector,  weigher,  and  measurer  that  the  quantity 
paid  for  has  been  determined  by  such  officer. —  (Ibid.) 

Sec.  3714.  [Contracts  for  military  or  naval  service.]  All  purchases  and  con- 
tracts for  supplies  or  services  for  the  military  and  naval  service  shall  be  made 
by  or  under  the  direction  of  the  chief  officers  of  the  Departments  of  War  and 
of  the  Navy,  respectively.  [And  all  agents  or  contractors  for  supplies  or  service 
as  aforesaid  shall  render  their  accounts  for  settlement  to  the  accountant  of 
the  proper  department  for  which  such  supplies  or  services  are  required,  subject, 
nevertheless,  to  the  inspection  and  revision  of  the  officers  of  the  Treasury  in  the 
manner  before  prescribed.] — (16  July,  1798,  c.  85,  s.  3,  v.  1,  p.  610.  27  Feb., 
1877,  c.  69,  V.  19,  p.  249.  U.  S.  v.  Adams,  7  Wall.,  463;  Parish  v.  U.  S.,  8 
Wall.,  489.) 

This  section  is  reproduced  above  as  it  appears 

in    the    second    edition    of    the    Revised 

Statutes.    The  words  enclosed  in  brackets 

were  added  to  the  original  section  bv  act 

of  February  27,  1877  (19  Stat.,  249). 
See  sections  5i2-.51.5,  and  3744-3747,  Revised 

Statutes,  as  to  filing  of  copies  of  contracts 

in  the  Returns  Office  of  the  Interior  De- 
partment. 

Sec.  3718.  [Naval  supplies ;  advertisements ;  lowest  bidder;  security.]  All 
provisions,  clothing,  hemp,  and  other  materials  of  every  name  and  nature,  for 
the  use  of  the  Navy,  and  the  transportation  thereof,  when  time  will  permit, 
shall  be  furnished  by  contract,  by  the  lowest  bidder,  as  follows :  In  the  case  of 
provisions,  clothing,  hemp,  and  other  materials,  the  Secretary  of  the  Navy 
shall  advertise,  once  a  week,  for  at  least  four  weeks,  in  one  or  more  of  the 
principal  papers  published  in  the  place  where  such  articles  are  to  be  furnished, 
for  sealed  proposals  for  furnishing  the  same,  or  the  whole  of  any  particular 
class  thereof,  specifying  the  classes  of  materials  and  referring  bidders  to  the 
several  chiefs  of  Bureaus,  who  will  furnish  them  with  printed  schedules,  givmg 
a  full  description  of  each  and  every  article,  with  dates  of  delivery,  and  so  forth. 
In  the  case  of  transportation  of  such  articles,  he  shall  advertise  for  a  period  of 
not  less  than  five  days.  All  such  proposals  shall  be  kept  sealed  until  the  day 
specified  in  such  advertisement  for  opening  the  same,  when  they  shall  be 
opened  by  or  under  the  direction  of  the  officer  making  such  advertisement,  in 
the  presence  of  at  least  two  persons.  The  person  offering  to  furnish  any  class 
of  such  articles,  and  giving  satisfactory  security  for  the  performance  thereof, 
under  a  forfeiture  not  exceeding  twice  the  contract  price  in  case  of  failure, 
shall  receive  a  contract  for  furnishing  the  same. —  (3  Mar.,  1843,  c.  83,  v.  5,  p, 
617.  28  Sept.,  1850,  c.  80,  s.  1,  v.  9,  p.  513.  5  Aug.,  1854,  c.  268,  s.  1,  v.  10, 
p.  585.     17  April,  1866,  c.  45,  s.  4,  v.  14,  p.  38.) 


Amendment  to  this  section  was  made  by  act  of 
June  30,  1890  (26  Stat.,  197),  which  pro- 
\T.ded  that  said  section  ' '  is  hereby  amended 
by  striking  out  the  words  'once  a  week  for 
foiu"  weeks'  and  inserting  in  lieu  thereof 
the  words  'twice  a  week  for  two  weeks  or 
longer,  not  to  exceed  four  weeks,  in  the 
discretion  of  the  Secretary  of  the  Navy.'  " 
It  was  again  amended  by  act  of  July  19, 


1892  (27  Stat.,  243),  which  pro^dded  that 
this  section,  as  amended  by  the  act  of  June 
30,  1890,  is  hereby  amended  so  as  to  read, 
"twice  a  week  for  two  weeks  or  longer,  not 
to  exceed  four  weeks,  or  once  a  week  for 
four  weeks,  in  the  discretion  of  the  Secre- 
tary' of  the  Na\-v. "  It  was  fiu-ther  amended 
by  act  of  March  3,  1893  (27  Stat.,  724), 
which   provided   that  said   section   3718, 


1111 


Sec.  3719. 


Pt.  2.  REVISED  STATUTES. 


Contracts. 


Rev-ised  Statutes,  as  amended  by  the  act  of 

July  19,  1892,  is  hereby  amended  so  as  to 

reaci,  ' '  twice  a  week  for  two  weeks  or  longer, 

not  to  exceed  four  w'eeks,  or  once  a  week 

for  two  weeks  or  lonsier,  not  to  exceed  four 

weeks,  in  the  discretion  of  the  Secretary  of 

the  Na\'y." 
Advertisino'  in  newspapers:  See  sections  3709, 

3820,  and  3828,  Rev-ised  Statutes. 
Advertising  not  required  in  certain  cases:  See 

section  3721,  Revised  Statutes,  and  note 

thereto. 
Exchange  of  tj-pewriters,  adding  machines,  and 

other  similar  labor-sa\dng  devices  in  part 

payment  for  new  machines  used  for  the 

same  purpose,  was  authorized  bv  act  of 

March  4,  1915,  section  5  (38  Stat., '1161). 
Lowest  bidder:  See  sections  3721,   3722,   and 

3724,  Re\ised  Statutes,  and  notes  there- 
to. 
Naval  Supply  Account  shall  govern  the  charg- 
ing, crediting,  receipt,  piu'chase,  transfer, 

manufacture,  repair,  issue,  and  consump- 
tion of  all  stores  for  the  naval  establishment, 

with  certain  exceptions.     (Acts  June  25, 

1910,  SCi  Stat.,  792;  Mar.  4,  1911,  36  Stat., 

1279;  June  30,  1914,  38  Stat.,  405.) 
Naval  Supply  Account  Fimd  shall  be  charged 

with  the  cost  of  all  stores  prociu"ed  for,  and 

credited  with  the  value  of  all  issues  or  sales 

made  from,   the  Naval  Supply  Accoimt. 

(Act  Mar.  1,  1921,  41  Stat.,  1169.) 
Officers  of  the  NaA^^  or  Marine  Corps  on  the 

active  or  retired  list  are  forbidden  to  hold 

employment  with  any  person  or  company 

furnishing  naval  supplies  or  war  material 

to  the  Government.    (See  act  June  10,  1896, 

29    Stat.,    361.)     See   sections    3739-3742, 

Re\'ised  Statutes,  and  notes  thereto,  as  to 

Members  of  Congress  interested  in  contracts. 
Opening  bids. — See   sections    3710   and    3722, 

Revised  Statutes. 
Open-market  purchases  for  all  branches  of  the 

naval  ser\ice,  without  formal  contract  or 

bond  are  authorized  where  amount  does 

not  exceed  $500.  (Act  Mar.  2, 1907,  34  Stat., 

1193).     See  also  sections  3709  and  3729, 

Rexised  Statutes. 
Proposals  for  manufactured  articles  shall  spe- 
cify   standardized    screw  threads.      (Act 

July  18,  1918,  sec.  2,  40  Stat.,  913.) 
Purchases  of  supplies  shall  be  deemed  to  be  for 

the  Navy,  and  not  for  any  bureau  thereof, 

Sec.  3719.  (Guarantee  of  bid;  delinquent  bidder;  new  contract.]  Every 
proposal  for  naval  supplies  invited  by  the  Secretary  of  the  Navy,  under  the 
preceding  section,  shall  be  accompanied  by  a  written  guarantee,  signed  by  one 
or  more  responsible  persons,  to  the  effect  that  he  or  they  undertake  that  the 
bidder,  if  his  bid  is  accepted,  will,  at  such  time  as  may  be  prescribed  by  the 
Secretary  of  the  Navy,  give  bond,  with  good  and  sufficient  sureties,  to  furnish 
the  supplies  proposed;  and  no  proposal  shall  l^e  considered,  unless  accom- 
panied by  such  guarantee.  If,  after  the  acceptance  of  a  proposal,  and  a 
notification  thereof  to  the  bidder,  he  fails  to  give  such  bond  within  the  time 
prescribed  by  the  Secretary  of  the  Navy,  the  Secretary  shall  proceed  to  con- 
tract with  some  other  person  for  furnishing  the  supphes;  and  shall  forthwith 
cause  the  difference  between  the  amount  contained  in  the  proposal  so  guar- 
anteed and  the  amount  for  which  he  may  have  contracted  for  furnishing  the 

1112 


and  they  shall  be  classified  and  issued 
accordingly.  (Act  Mar.  2,  1891,  26  Stat., 
807;  act  June  30,  1890,  26  Stat.,  205.) 

Regulations  for  the  purchase,  preservation,  and 
disposition  of  naval  sujjplies  are  to  be  made 
by  the  President.  (Sec.  1549,  R.  S.;  see 
also  sees.  161  and  1547,  R.  S.) 

Reserve  material. — "To  prevent  deterioration 
materials  purchased  under  the  reserve  ma- 
terial Navy  fimd  shall  be  used  as  required 
in  time  of' peace,  and  when  so  used  reim- 
bursement shall  l)e  made  to  this  a])propiia- 
tion  from  current  naval  appropriations  in 
order  that  additional  stocks  may  be  pro- 
cured. (Act  June  15,  1917,  40  Stat.,  211.) 
(This  was  a  proxdso  to  an  appropriation  of 
two  million  dollars  made  in  the  urgent  de- 
ficiency appropriation  act  of  June  15,  1917 
(40  Stat.,  182,  211),  under  "Bureau  of  Sup- 
plies and  Accounts,"  subheading,  "Re- 
serve material,  Na\'y,"  as  follows:  "For 
procuring  apparatus  and  materials  (other 
than  ordnance  materials  and  medical 
stores),  as  a  war  reserve  necessary  to  be 
carried  in  the  supply  departments  for  the 
piu"pose  of  fitting  out  vessels  of  the  fleet 
and  merchant  auxiliaries  in  time  of  war 
or  when,  in  the  opinion  of  the  President,  a 
national  emergency  exists." 

Transfer  of  supplies  between  bureaus  of  the 
Na\'y  Department  was  authorized  by  act 
of  March  2,  1889  (25  Stat.,  818);  see  also 
act  of  March  4,  1915  (38  Stat.,  1084). 

Transfer  of  supplies  between  War  and  Navy- 
Departments:  See  acts  March  4,  1915  (38 
Stat.,  1084);  February  25,  1919  (40  Stat., 
1174);  and  July  11,  1919  (41  Stat.,  132); 
see  also  section  1135,  Re^ised  Statutes. 

Transportation  of  supplies  for  the  Navy  is  re- 
quired to  be  in  vessels  of  the  United 
States,  except  where  freight  charges  are 
excessive  and  unreasonable.  (See  act 
Apr.  28,  1904,  33  Stat.,  518.) 

Transportation  of  fuel  for  the  Na^^y;  President 
authorized  to  purchase  vessels  for  such 
transportation  when  charter  prices  are 
excessive.  (See  act  June  15,  1917,  40 
Stat.,  211;  see  also,  act  Mar.  3,  1915,  38 
Stat.,  944.) 

Transportation  of  naval  supphes  by  Army 
transports;  see  act  March  2,  1907  (34  Stat., 
1170). 


Contracts. 


Pt.  2.  REVISED  STATUTES. 


Sec.  3721. 


supplies,  for  the  whole  period  of  the  proposal,  to  be  charged  up  against  the 
bidder  and  his  guarantor;  and  the  same  may  be  immediately  recovered  by 
the  United  States,  for  the  use  of  the  Navy  Department,  in  an  action  of  debt 
against  either  or  all  of  such  persons. —  (10  Aug.,  1846,  c.  176,  s.  6,  v.  9,  p.  101.) 

This  section  was  expressly  amended  by  act  of 
May  25,  1896  (29  Stat.,  136),  which  added 
at  the  end  of  said  section,  the  following: 
'  'Provided,  That  the  Secretary  of  the  Navy 
may,  in  his  discretion,  accept,  in  lieu  of 
the  written  guaranty  required  to  accom- 
pany a  proposal  for  naval  supplies,  and 
in  lieu  of  the  bond  required  for  the  faith- 
ful performance  of  a  contract  for  furnishing 
such  supplies,  a  certified  check,  payable 
to  the  order  of  the  Secretary  of  the  Navy, 
for  the  full  amount  of  such  proposal  or  con- 
tract, the  check  to  be  held  by  the  Sec- 
retary of  the  Na\'y  until  the  reqmrements 
of  the  proposal  or  contract  shall  be  com- 
plied with  and  as  a  guaranty  for  com- 
pliance with  the  same." 


Further  amendment  to  this  section,  but 
without  express  reference  thereto,  was 
made  by  act  of  December  11,  1906  (34 
Stat.,  841),  reading  as  follows:  "That  the 
Secretary  of  the  Na\^  may,  in  his  dis- 
cretion, accept,  in  lieu  of  the  written 
guaranty  required  to  acccomjiany  a  pro- 
posal for  naval  supplies,  and  in  lieu  of  the 
bond  required  for  the  faithful  performance 
of  a  contract  for  furnishing  such  su])plies, 
a  certified  check,  payable  to  the  order  of 
the  Secretary  of  the  Navy,  for  from  twenty- 
five  to  fifty  per  centum  of  the  amount  of 
such  proposal  or  contract,  the  check  to  be 
held  by  the  Secretary  of  the  Na\'y  until 
the  requirements  of  the  proposal  or  con- 
tract shall  be  complied  with  and  as  a 
guaranty  for  compliance  with  the  same." 

Sec.  3720.  [Delinquent  contractor;  penalty.]  All  such  proposals  for  naval 
supplies  shall  be  preserved  and  recorded,  and  reported  by  the  Secretary  of  the 
Navy  to  Congress  at  the  commencement  of  every  regular  session.  The  report 
shall  contain  a  schedule  embracing  the  offers  by  classes,  indicating  such  as 
have  been  accepted.  In  case  of  a  failure  to  supply  the  articles  or  to  perform 
the  work  by  the  person  entering  into  such  contract,  he  and  his  sureties  shall 
be  liable  for  the  forfeiture  specified  in  such  contract,  as  liquidated  damages, 
to  be  sued  for  in  the  name  of  the  United  wStates. — (3  Mar.,  1843,  c.  83,  v.  5,  p. 
617.) 


Amendment  to  this  section  (and  to  sec.  429, 
R.  S.),  was  made  by  act  of  Jime  22,  1910 
(36  Stat.,  591),  as  follows:  "That  the  second 
clause  of  section  foiu*  hundred  and  twenty- 
nine  of  the  Revised  Statutes  of  the  United 
States  and  the  following  words  in  section 
thirty-seven  himdred  and  twenty  of  the 


Revised  Statutes  of  the  United  States:  'and 
reported  by  the  Secretary  of  the  Navy  to 
Congress  at  the  commencement  of  every 
regular  session.  The  report  shall  contain  a 
schedule  embracing  the  offers  by  classes, 
indicating  such  as  have  been  accepted,'  be, 
and  the  same  are  hereby,  repealed." 


Sec.  3721.  [Purchases  without  advertisement.]  The  provisions  which  re- 
quire that  supplies  shall  be  purchased  by  the  Secretary  of  the  Navy  from  the 
lowest  bidder,  after  advertisement,  shall  not  apply  to  ordnance,  gunpowder,  or 
medicines,  or  the  supplies  which  it  may  be  necessary  to  purchase  out  of  the 
United  States  for  vessels  on  foreign  stations,  or  bunting  delivered  for  the  use 
of  the  Navy,  or  tobacco,  or  butter  or  cheese  destined  for  the  use  of  the  Navy, 
or  things  contraband  of  war.  Contracts  for  butter  and  cheese  for  the  use  of 
the  Navy  may  be  made  for  periods  longer  than  one  year,  if,  in  the  opinion 
of  the  Secretary  of  the  Navy,  economy  and  the  quality  of  the  ration  will 
be  promoted  thereby.  The  Secretary  of  the  Navy  may  enter  into  contracts 
for  tobacco,  from  time  time,  as  the  service  requires,  for  a  period  not  exceeding 
four  years;  and  in  making  such  contracts  he  shall  not  be  restricted  to  the 
lowest  bidder,  unless,  in  his  opinion,  economy  and  the  best  interests  of  the 
service  will  be  thereby  promoted. —  (3  Mar.,  1845,  c.  77,  s.  3,  v.  5,  p.  794. 
3  Mar.,  1847,  c.  48,  s.  2,  v.  9,  p.  172.  3  Aug.,  1848,  c.  121,  s.  11,  v.  9,  p.  272. 
2  Mar.,  1865,  c.  74,  s.  7,  v.  13,  p.  467.) 


1113 


Sec.  3724. 


PL  2.  REVISED  STATUTES. 


Contracts. 


See  section  3718,  Revised  Statutes,  and  laws 
noted  thereunder;  and  see  section  3729,  as 
to  purchases  of  Inuiting;  see  also  section 
3735,  as  to  contracts  being  limited  to 
periods  of  one  year. 

Gun  steel  or  armor  for  the  Navy,  purchase  of, 
without  ])ublic  competition,  prohibited  by 
act  of  March  3,  1893  (27  Stat.,  732). 

Material  for  steam  boilers,  may  be  piuxiased 
without  advertising  for  bids.  (Res.  Jxme 
14,  1878,  20  Stat.,  253). 


Shells  or  projectiles,  except  for  experimental 
purposes,  are  not  to  be  purchased  without 
bids.  (Act  Mar.  4,  1913,  37  Stat.,  890;  act 
June  30,  1914,  38  Stat.,  398.) 

Tobacco  for  the  Navy  is  to  be  purchased  after 
advertisement,  in  the  same  manner  as 
other  supplies.  (Act  June  10,  1896,  29 
Stat.,  370.) 

See  act  of  June  3,  1916,  section  120  (39  Stat., 
213),  and  laws  noted  thereunder,  as  to  pro- 
curement of  material  under  exceptional 
conditions. 


Opening  bids. — See  sections  3710  and  3718, 
Revised  Statutes. 


Sec.  3722.  [Rejection  of  bids;  not  manufacturers  or  regular  dealers;  etc. 
Opening  bids.]  The  cliief  of  any  Bureau  of  the  Navy  Department,  in  contract- 
ing for  naval  supplies,  shall  be  at  liberty  to  reject  the  offer  of  any  person  who, 
as  principal  or  surety,  has  been  a  defaulter  in  any  previous  contract  with  the 
Navy  Department,  Parties  who  have  made  default  as  principals  or  sureties 
in  any  former  contract  shall  not  be  received  as  sureties  on  other  contracts ;  nor 
shall  the  copartners  of  any  firm  be  received  as  sureties  for  such  firm  or  for 
each  other;  nor,  in  contracts  with  the  same  Bureau,  shall  one  contractor  be 
received  as  surety  for  another.  Every  contract  shall  require  the  delivery  of  a 
specified  quantity,  and  no  bids  having  nominal  or  fictitious  prices  shall  be 
considered.  If  more  than  one  bid  be  offered  by  any  one  party,  by  or  in  the 
name  of  his  or  their  clerk,  partner,  or  other  person,  all  such  bids  may  be  re- 
jected; and  no  person  shall  be  received  as  a  contractor  who  is  not  a  manufac- 
turer of,  or  regular  dealer  in,  the  articles  which  he  offers  to  supply.  All  per- 
sons offering  bids  shall  have  the  right  to  be  present  when  the  bids  are  opened 
and  inspect  the  same. 

See  Bureaii  of  Supplies  and  Accoimts'  file  No. 
385-PD,  385-10,  March  12,  1919;  and  385 
PC,  June  15,  1919;  see  also  annuel  report. 
Paymaster  General,  1920,  page  20. 

Sec.  3723.  [Contracts  for  foreign  supplies ;  advertisement,  etc.]  No  chief  of  a 
Bureau  shall  make  any  contract  for  supplies  for  the  Navy,  to  be  executed  in  a 
foreign  country,  except  it  be  on  first  advertising  for  at  least  thirty  days  in  two 
daUy  newspapers  of  the  city  of  New  York,  inviting  sealed  bids  for  furnisliing 
the  supplies  desired ;  which  bids  shall  be  opened  in  the  presence  of  the  Secretary 
of  the  Navy  and  the  heads  of  two  Bureaus;  and  contracts  shall  in  all  cases  be 
awarded  to  the  lowest  bidder;  and  paymasters  for  the  Navy  on  foreign  stations 
shall  render,  when  practicable,  with  their  accounts,  an  official  certificate  from 
the  resident  consul,  or  conmiercial  or  consular  agent  of  the  United  States,  if 
there  be  one,  to  be  furnished  gratuitously,  vouching  that  all  pm-chases  and 
expenditures  made  by  the  paymasters  were  made  at  the  ruling  market-prices 
of  the  place  at  the  time  of  ourchase  or  expenditure. —  (3  M.2iV.,  1871,  c.  117,  s. 
3,  V.  16,  p.  53.5.) 

See  note  to  section  3728,  Revised  Statutes. 

Sec.  3724.  [Rejection  of  excessive  bids.]  Where  articles  are  advertised  and 
bid  for  in  classes,  and  in  the  judgment  of  the  Secretary  of  the  Navy  any  one  or 
more  articles  appear  to  be  bid  for  at  excessive  or  unreasonable  prices,  exceed- 
ing ten  per  centum  above  their  fair  market-value,  he  shall  be  authorized  to 
reject  such  bid.— (4  July,  1864,  c.  252,  s.  7,  v.  13,  p.  394.) 


1114 


Contracts.  PL  r.  REVISED  S  TAT  LIES.  Sec.  3730. 

Amendment  to  this  section,  but  A\-ithout  ex-  all  awards  of  contracts  for  provisions  for 

press  reference  thereto,  was  made  by  act  ,  the  Navy  shall  be  made  by  individual 

of  March  4,  1913  (37  Stat.,  904),  as  follows:  |  items;  the  contract  for  each  item  being 

"From  and  after  the  passage  of  this  Act  '  awarded  to  the  lowest  responsible  bidder." 

Sec.  3725.  [Hemp  ;  American  growth  or  manufacture.]  All  hemp,  or  prepara- 
tions of  hemp,  used  for  naval  pm'poses  by  the  Government  of  the  United  States, 
shall  be  of  American  growth  or  manufacture,  when  the  same  can  be  obtained  of 
as  good  C|uaiity  and  at  as  low  a  price  as  foreign  hemp. —  (14  July,  1862,  c.  1G3,  s. 
11,  V.  12,  p.  554.) 

See  section  3718,  and  note  to  section  3728,  Revised  Statutes. 

Sec.  3726.  [Preserved  meats ;  butter ;  etc.]  Tlie  Secretar}'  of  the  Xavy  is 
authorized  to  procure  the  preserved  meats,  pickles,  butter,  and  desiccated 
vegetables,  in  such  manner  and  under  such  restrictions  and  guarantees  as  in  his 
opinion' will  best  insure  the  good  quality  of  said  articles. —  (18  July,  1861,  c.  7, 
s.  7,  V.  12,  p.  265.) 

See  section  3721,  Revised  Statutes,  as  to  contracts  for  butter. 

Sec.  3727.  [Flour  and  bread.]  The  Secretary  of  the  Nav}^  is  authorized  to 
purchase,  in  such  manner  as  he  shall  deem  most  advantageous  to  the  Govern- 
ment, the  flour  required  for  naval  use;  and  to  have  the  bread  for  the  Navy 
baked  from  this  flour  by  special  contract  under  naval  inspection. —  (3  Mar., 
1863,  c.  118,  s.  4,  V.  12,  p.  818.) 

Sec.  3728.  [Home  manufactures  preferred ;  purchase  of  fuel.]  The  Secretary 
of  the  Navy,  m  makmg  contracts  and  purchases  of  articles  for  naval  purposes, 
shall  give  the  preference,  all  other  things,  including  price  and  quality,  being 
equal,  to  articles  of  the  growth,  production,  and  manufacture  of  the  United 
States.  In  purchasing  fuel  for  the  Navy,  or  for  naval  stations  and  yards,  the 
Secretary  of  the  Navy  shall  have  power  to  discriminate  and  purchase,  in  such 
manner  as  he  may  deem  proper,  that  kind  of  fuel  which  is  best  adapted  to  the 
purpose  for  which  it  is  to  be  used. — (28  Sept.,  1850,  c.  80,  s.  1,  v.  9,  pp.  513,  515.) 

See  section  3723  as  to  contracts  for  foreign  sup-  sec.  2,  24  Stat.,  215,  as  amended  by  act 


plies;  section  3711,  as  to  purchase  of  coal; 
section  3732,  as  to  purchase  of  fuel  beyond 
appropriations;  act  April  28,  1904  (33  Stat., 
518),  and  section  3718,  Revised  Statutes, 
as  to  transportation;  act  of  June  15,  1917 
(40  Stat.,  211),  as  to  transportation  of  fuel 
for  the  Navy. 
Domestic  steel  material  to  be  used  in  construc- 
tion of  naval  vessels.     (Act  Aug.  3,  1886, 


May  4,  1898,  30  Stat.,  390.) 

Foreign  war  material  may  be  purchased  in 
emergencies  and  imported  free  of  duty. 
(Act  Mar.  4,  1913,  37  Stat.,  896;  see  also 
act  June  30,  1914,  38  Stat..  399.) 

Foreign  materials  for  construction  or  repair  and 
equipment  of  naval  vessels  mav  be  imported 
%vithout  dutv.  (Act  Oct.  3,  1913,  sec.  IV, 
J,  subsecs.  5,  6,  38  Stat.,  196.) 


Sec.  3729.  [Bunting.]  The  Secretary  of  War,  the  Secretary  of  the  Navy,  and 
the  Secretary  of  the  Treasury  may  enter  into  contract,  in  open  market,  for  bunt- 
ing of  American  manufactm-e,  as  their  respective  services  require,  for  a  period 
not  exceeding  one  year,  and  at  a  price  not  exceeding  that  at  which  an  article 
of  ec^ual  quaUty  can  be  imported. —  (2  ]VIar.,  1865,  c.  74,  s.  7,  v.  13,  p.  467.) 


See  section  3709  and  note  to  section  3718,  Re- 
vised  Statutes,  asto  open-market  jjurchases. 


See  section  3721,  Re\ised  Statutes,  as  to  pur- 
chase of  bunting  without  advertisement. 


Sec.  3730.  [Relinquishment  of  reservations  on  deliveries.]  The  Secretary  of 
the  Navy  may  rehnquish  and  pay  all  reservations  of  the  ten  per  centum  upon 
deliveries  made  under  contracts  with  the  Nav}'  Department,  where  these 
reservations  have  arisen  and  the  contracts  have  been  afterward  extended,  or 

54641°— 22 71  1115 


Sec.  3734. 


PL  2.  REVISED  STATUTES. 


Contracts. 


where  the  contracts  have  been  completed  after  the  time  of  dehvery,  by  and 
with  the  consent  of  the  Department,  or  where  the  contracts  have  been  dissolved 
by  the  like  consent,  or  have  been  terminated,  or  an  extension  thereof  has  been 
prevented  by  operation  of  law,  wliere  no  injury  has  been  sustained  by  the 
public  service. — (17  June,  1844,  c.  107,  s.  5,  v.  5,  p.  703.) 

Contraftors    may   be    paid    partial    payments  1911,  37  Stat.,  32;  see  also  ser.  3648,  R.  S., 

during  progress  of  work  (see  act  Aug.  22,  and  note  thereto). 

Sec.  3731.  [Name  of  contractor  to  appear  on  supplies.]  Every  person  who  shall 
furnish  supplies  of  any  kind  to  the  Army  or  Navy  shall  be  required  to  mark  and 
distinguish  the  same  with  the  name  of  the  contractor  furnishing  such  supplies, 
in  such  manner  as  the  Secretary  of  War  and  the  Secretary  of  the  Navy  may, 
respectively,  direct;  and  no  supplies  of  any  kind  shall  be  received,  unless  so 
marked  and  distinguished.— (17  July,  1862,  c.  200,  s.  15,  v.  12,  p.  596.) 

Sec.  3732.  [Unauthorized  contracts;  inadequate  appropriation;  exceptions. 
Superseded.] 


This  section  read  as  follows: 

"Sec.  3732.  No  contract  or  purchase  on 
behalf  of  the  United  States  shall  be  made, 
unless  the  same  is  authorized  by  law  or  is  under 
an  appropriation  adequate  to  its  fulfillment, 
except  in  the  War  and  Na\^  Departments,  for 
clothing,  subsistence,  forage,  fuel,  quarters,  or 
transportation,  which,  however,  shall  not 
exceed  the  necessities  of  the  current  year." — 
(2  Mar.,  1861,  c.  84,  s.  10,  v.  12,  p.  220.  The 
Flovd  Acceptances,  7  Wall.,  666;  Harvey  v. 
U.  S.,  8  C.  Cls.,  501.) 

It  was  superseded  by  the  follo%ving  pro- 


vision in  the  Army  appropriation  act  of  Jiine 
12,  1906  (34  Stat.,  240,  255): 

"That  no  contract  or  purchase  on  behalf  of 
the  United  States  shall  be  made  unless  the 
same  is  authorized  by  law  or  is  under  an  appro- 
priation adequate  to  its  fulfillment,  except  in 
the  War  and  Navy  Departments,  for  clothing, 
subsistence,  forage,  fuel,  quarters,  transporta- 
tion, or  medical  and  hospital  supplies,  which, 
however,  shall  not  exceed  the  necessities  of  the 
current  year." 

See  also  section  3679,  Revised  Statutes,  and 
note  thereto. 


Sec.  3733.  [Erection,  repair,  or  furnishing  of  buildings  and  improvements; 
specific  appropriation  required.]  No  contract  shall  be  entered  into  for  the 
erection,  repair,  or  furnishing  of  any  public  building,  or  for  any  public  improve- 
ment which  shall  bind  the  Government  to  pay  a  larger  sum  of  money  than  the 
amount  in  the  Treasury  appropriated  for  the  specific  purpose. —  (25  July,  1868^ 
c.  2.3.3,  s.  3,  V.  15,  p.  177.) 

See  sections  355,  3663,  and  3679,  Revised  Statutes,  and  Criminal  Code,  act  March  4,  1909, 
section  98  (35  Stat.,  1106). 

Sec.  3734.  [Restrictions  on  new  buildings,]  And  hereafter  no  money  shall 
be  paid  nor  contracts  made  for  payment  for  any  site  for  a  public  buiUling  in 
excess  of  the  amount  specifically  appropriated  therefor;  and  no  money  shall  be 
expended  upon  any  public  building  until  after  sketch  plans  showing  the  ten- 
tative design  and  arrangement  of  such  building,  together  with  outline  descrip- 
tion and  detailed  estimates  of  the  cost  thereof  shall  have  been  made  by  the 
Supervising  Architect  of  the  Treasury  Department  (except  when  otherwise 
authorized  by  law)  and  said  sketch  plans  and  estimates  shall  have  been  approved 
by  the  Secretary  of  the  Treasury  and  the  head  of  each  executive  department 
who  will  have  officials  located  in  such  building;  but  such  approval  shall  not 
prevent  subsequent  changes  in  the  design,  arrangement,  materials,  or  methods 
of  construction  or  cost  which  may  be  found  necessary  or  advantageous:  Pro- 
vided, That  no  such  changes  shall  be  made  involving  an  expense  in  excess  of 
the  limit  of  cost  fixed  or  extended  by  Congress,  and  all  appropriations  made 
for  the  construction  of  such  building  shall  be  expended  within  the  limit  of  cost 

so  fixed  or  extended. 

1116 


Contracts. 


Ft.  2.  REVISED  STATUTES. 


Sec.  3739. 


This  section  was  expressly  amended  and  re- 
enacted  to  read  as  above  by  act  of  June  25, 
1910,  section  33  (36  Stat.,  699)  relating  to 
public  buildings  under  the  control  of  the 
Secretary  of  the  Treasury. 

By  act  of  July  1, 1898  (30  Stat.,  614),  it  was  pro- 
vided that  '-All  courthouses,  customhouses, 
post  offices,  appraiser's  stores,  barge  offices, 
subtreasuries,  and  other  public  buildings 
outside  of  the  District  of  Columbia  and  out- 
side of  military  reservations  *  *  *  erected 
or  purchased  out  of  any  appropriation 
under  the  control  of  the  Treasury  Depart- 
ment, together  with  the  site  or  sites  thereof, 
are  hereby  expressly  declared  to  be  under 
the  exclusive  jurisdiction  and  control  and 
in  the  custody  of  the   Secretary  of  the 


Treasury,  who  shall  have  full  power  to  take 
possession  of  and  assign  and  reassign  rooms 
therein  to  such  Federal  officials,  clerks,  and 
employees  as  in  his  judgment  and  discre- 
tion should  be  furnished  with  offices  or 
rooms  therein." 

That  the  word  ''military"  has  been  used  in 
other  connections  to  include  things  pertain- 
ing to  the  Navy,  see  act  July  17,  1862,  sec- 
tion 17  (12  Stat.,  596);  section  1488,  Re- 
vised Statutes;  act  April  12,  1902,  section  2 
(32  Stat.,  100);  31  Op.  Atty.  Gen.,  445;  7 
Op.  Atty.  Gen.,  162;  United  States  v. 
North  (112  U.  S.,  510);  Stocker  v.  United 
States  (39  Ct.  Cls.,  300). 

See  section  3663,  Revised  Statutes,  as  to  esti- 
mates for  public  works. 


Sec.  3736.  [Contracts  limited  to  one  year.]  It  shall  not  be  lawful  for  any  of 
the  Executive  Departments  to  make  contracts  for  stationery  or  other  supplies 
for  a  longer  term  than  one  year  from  the  time  the  contract  is  made. — (31  Jan., 
1868,  Res.  No.  8,  v.  15,  p.  246.     24  Mar.,  1874,  Res.  No.  6,  v.  18,  p.  286.) 

See  section  3721,  Re\-ised  Statutes,  as  to  contracts  for  the  Navy  for  periods  exceeding  one  year. 

Sec.  3736.  [Restrictions  on  purchases  of  land.]     No  land  shall  be  purchased 
on  account  of  the  United  States,  except  under  a  law  authorizing  such  pur- 
chase.—  (1  May,  1820,  c.  52,  s.  7,  v.  .3,  p.  568.— Neilson  v.  Lagow,  12  How.,  98.) 
See  section  355,  Revised  Statutes,  and  note  thereto. 

Sec.  3737.  [No  transfer  of  contract.]  No  contract  or  order,  or  any  interest 
therein,  shall  be  transferred  by  the  party  to  whom  such  contract  or  order  is 
given  to  any  other  party,  and  any  such  transfer  shall  cause  the  annulment  of 
the  contract  or  order  transferred,  so  far  as  the  United  States  are  concerned. 
All  rights  of  action,  however,  for  any  breach  of  such  contract  by  the  contracting 
parties,  are  reserved  to  the  United  States. —  (17  July,  1862,  c.  200,  s.  14,  v.  12, 
p.  596.  Wheelan  v.  U.  S.,  5  C.  Cls.,  504;  McCord's  Case,  9  C.  Cls.,  155;  Fran- 
cis's Case,  11  C.  Cls.,  638.) 

Sec.  3738.  [Eight  hours  to  be  day's  work.]  Eight  hours  shall  constitute  a 
day's  work  for  all  laborers,  workmen,  and  mechanics  who  may  be  employed 
by  or  on  behalf  of  the  Government  of  the  United  States.— (28  June,  1808,  c. 
72,  V.  15,  p.  77.  U.  S.  V.  Martin,  94  U.  S.,  40;  Martin's  Case,  10  C.  Cls.,  276.) 
See  acts  August  1,  1892  (27  Stat.,  340);  June  19^  ^^?)>  as  to  hours  of  labor  and  contract  pro- 


1912  (37   Stat.,    137);  March  3,    1913  (37 
Stat.,  726);  and  March  4,  i917  (39  Stat., 


visions  relating  thereto. 


Sec.  3739.  [Members  of  Congress  not  to  be  interested   in  contracts, 
pealed.] 


Re- 


This  section  provided  as  follows: 
"Sec.  3739.  No  member  of  or  Delegate  to 
Congress  shall  directly  or  indirectly,  himself,  or 
by  any  other  person  in  trust  for  him,  or  for  his 
use  or  benefit,  or  on  his  account,  undertake,  ex- 
ecute, hold,  or  enjoy,  in  whole  or  in  part,  any 
contract  or  agreement  made  or  entered  into  in 
behalf  of  the  United  States,  by  any  officer  or 
person  authorized  to  make  contracts  on  behalf 
of  the  United  States.  Every  person  who  vio- 
lates this  section  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall  be  fined  three  thousand 
dollars.  All  contracts  or  agreements  made  in 
violation  of  this  section  shall  be  void;  and 
whenever  any  sum  of  money  is  advanced  on  the 
part  of  the  United  States,  in  consideration  of 


any  such  contract  or  agreement,  it  shall  be 
forthwith  repaid;  and  in  case  of  refusal  or  delay 
to  repay  the  same,  when  demanded,  by  the 
proper  officer  of  the  Department  under  whose 
authority  such  contract  or  agreement  shall  have 
been  made  or  entered  into,  every  person  so 
refusing  or  delaying,  together  with  his  surety  or 
sureties,  shall  be  forthwith  prosecuted  at  law 
for  the  recovery  of  any  such  sum  of  money  so 
advanced."— (21  Apr.,  1868,  c.  48,  s.  1,  v.  2,  p. 
484.     22  June,  1874,  c.  389,  v.  18,  p.  177.)  _ 

It  was  expressly  repealed  by  Criminal 
Code,  Act  March  4,  1909,  section  341  (35  Stat., 
1153),  and  similar  provisions  were  embodied  in 
said  art,  section  114  (35  Stat.,  1109). 


1117 


Sec.  3744. 


Ft.  2.  REVISEI)  STATUTES. 


Contracts. 


Sec.  3740.  [What  interest  Members  of  Congress  may  have.     Repealed.] 


same  arc  ready  for  delivery,  and  pa>Tnent 
therefor  is  made,  at  the  time  of  making  or  en- 
tering into  the  contract  or  agreement." — (21 
Apr.,  1808,  c.  48,  s.  2,  v.  2,  p.  484.  27  Feb., 
1877,  c.  69,  r.  19,  p.  249.) 

It  was  expressly  repealed  bv  Criminal 
Code,  act  I\Iarch  4,  1909,  section  341  (35  Stat., 
1153),  and  similar  pro^'isions  were  embodied  in 
said  act,  section  116  (35  Stat.,  1109). 


Tliis  section  provided  as  foUovrs: 

"Sec.  3740.  Notliing  contained  in  the  pre- 
ceding section  shall  extend,  or  be  construed  to 
extend,  to  any  contract  or  agreement,  made  or 
entered  into,  or  accepted,  by  any  incorporated 
conii)any,  where  such  contract  or  agreement  is 
made  for  the  general  beneiit  of  such  incorpora- 
tion or  company;  nor  to  the  purchase  or  sale 
of  bills  of  exchange  or  other  property  by  any 
member  of  [or  delegate  toj  Congress,  where  the 

Sec.  3741.  [Stipulation  that  no  Member  of  Congress  has  an  interest.]     In 

every  such  contract  or  agreement  to  be  made  or  entered  into,  or  accepted  by 

or  on  behalf  of  the  United  States,  there  shall  be  inserted  an  express  condition 

that  no  member  of  [or  delegate  to]  Congress  shall  be  admitted  to  any  share  or 

part  of  such  contract  or  agreement,  or  to  any  benefit  to  arise  thereupon. — (21 

Apr.,  1808,  c.  48,  s.  3,  v.  2,  p.  484.     27  Feh.,  1877,  c.  69,  v.  19,  p.  249.) 

This  section  is  reproduced  above  as  it  appears 
in  the  second  edition  of  the  Revised 
Statutes.     The  words  inclosed  in  brackets 


were  inserted  in  the  original  section  by  act 
of  February  27,  1877  (19  Stat.,  249). 


Sec.  3742.  [Officer  making   contract   with  Member  of  Congress ; 
Repealed.] 


penalty. 


three  thousand  dollars.'" — (21  Apr.,  1808,  c. 
48,  s.  4,  v.  2,  p.  484.  27  Feb.,  1877,  c.  69,  v. 
19,  ;).  249.) 

It  was  expressly  repealed  bv  Criminal 
Code,  act  IMarch  4,  1909,  section  341  (35  Stat., 
1153),  and  similar  pro\-isions  were  embodied 
in  said  act,  section  115  (35  Stat.,  1109). 


This  section  provided  as  follows: 

"Sec.  3742.  Every  officer  who,  on  Ijehalf  of 
the  United  States,  directly  or  indirectly  makes 
or  enters  into  any  contract,  bargain,  or  agi'ee- 
ment  in  \vriting  or  otherwise,  other  than  such 
as  are  hereinbefore  excepted,  with  any  member 
of  [or  delegate  to]  Congress,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall  be  fined 

Sec.  3743.  [Contracts  to  be  filed  with  Auditors.]  All  contracts  to  be 
made,  by  virtue  of  any  law,  and  requiring  the  advance  of  money,  or  in  any 
manner  comiected  with  the  settlement  of  public  accounts,  shall  be  deposited 
promptly  in  the  offices  of  the  Auditors  of  the  Treasury,  according  to  the  nature 
of  the  contracts:  Provided,  That  this  section  shall  not  apply  to  the  existing 
laws  in  regard  to  the  contingent  funds  of  Congress. 

This  section  was  expressly  amended  and  re-       Secretary  of  the  Na\'y  is  charged  ^\'ith  the  cus- 
enacted  to  read  as  above  by  act  of  July  tody   of  all   records  appertaining  to   the 

31,  1894,  section  18  (28  Stat.,  210j.         _  Na\y  Department  by  section  418,  Re\ised 

Copies  of  contracts  are  required  to  be  filed  in  Statutes, 

the  Returns  Office  of  the  Interior  Depart- 
ment by  sections  512-515,  and  3744-3747 
Re\-ised  Statutes. 

Sec.  3744.  [Contracts  to  be  in  writing;  copy  filed  in  Returns  Office.]  It 
shall  be  the  duty  of  the  Secretary  of  War,  of  the  Secretary  of  the  Navy,  and  of 
the  Secretary  of  the  Interior,  to  cause  and  require  every  contract  made  by  them 
severally  on  behalf  of  the  Government,  or  by  their  officers  under  them  appointed 
to  make  such  contracts,  to  be  reduced  to  writing,  and  signed  by  the  contracting 
parties  with  their  names  at  the  end  thereof;  a  copy  of  which  shall  be  filed  by 
the  officer  making  and  signing  the  contract  in  the  Returns  Office  of  the  Depart- 
ment of  the  Interior,  as  soon  after  the  contract  is  made  as  possible,  and  within 
thirty  days,  together  with  all  bids,  offers,  and  proposals  to  him  made  by  persons 
to  obtain  the  same,  and  with  a  copy  of  any  advertisement  he  may  have  pub- 
lished inviting  bids,  offers,  or  proposals  for  the  same.  AU  the  copies  and  papers 
in  relation  to  each  contract  shall  be  attached  together  by  a  ribbon  and  seal,  and 

1118 


Contracts. 


PL  2.  REVISED  STATUTES. 


Sec.  3747. 


marked  by  numbers  in  regular  order,  according  to  the  number  of  papers  com- 
posing the  whole  return.-— (2  June,  1862,  c.  93,  s.  1,  v.  12,  p.  411.  Lindsley  v. 
U.  S.,  4  C.  Cls.,  359;  Burchiel  v.  U.  S.,  4  C.  Cls.,  549;  Bernheimer  v.  U.  S.,  5 
C.  Cls.,  65;  Salamon  v.  U.  S.,  19  Wall..  17:  Jones's  Case,  11  C.  Cls.,  733.) 


This  section  was  expressly  amended  by  the 
urgent  deficiency  appropriation  act  of 
June  15,  1917  (40'Stat.,  198),  by  adding  at 
the  end  thereof  the  loIIowinG;:  "Proiukd, 
That  the  Secretary  of  War  or  the  Secretary 
of  the  Navy  may  extend  the  time  for  filing 
such  contracts  in  the  returns  office  of  the 


See 


Department  of  the  Interior  to  ninety  days 
•whene^'er  in  their  opinion  it  woukl  be  to  the 
interest  of  the  United  States  to  follow  such 
a  course." 

sections  512-515,  Revised  Statutes,  and 
notes  thereto,  as  to  the  Returns  Office. 


Sec.  3745.  [Oath  to  copy  of  contract.]  It  shall  be  the  further  duty  of  the 
officer,  before  making  his  return,  according  to  the  preceding  section,  to  afhx  to 
the  same  his  affidavit  in  the  following  form,  sworn  to  before  some  magistrate 
having  authority  to  administer  oaths:  "I  do  solemnly  swear  (or  affirm)  that 
the  copy  of  contract  hereto  annexed  is  an  exact  copy  of  a  contract  made  by  mc 

pereonally  with  ;  that  I  made  the  same  fairly  without  any  benefit  or 

advantage  to  myself,  or  allowing  any  such  benefit  or  advantage  corruptly  to 


the  said 


or  any  other  person;  and   that   the  papers   accompanying 


include  all  those  relating  to  the  said  contract,  as  required  by  the  statute  in  such 
case  made  and  provided." — (Ibid.,  s.  2.) 

See  sections  512-515,  Revised  Statutes,  and  notes  thereto. 

Sec.  3746.  [Penalty  for  omitting  returns.]  Every  ollicer  who  makes  any 
contract,  and  fails  or  neglects  to  make  return  of  the  same,  according  to  the  pro- 
visions of  the  two  preceding  sections,  unless  from  unavoidable  accident  or  causes 
not  within  his  control,  shall  be  deemed  guilt}'  of  a  misdemeanor,  and  shaU  be 
fined  not  less  than  one  hundred  dollars  nor  more  tlian  fne  hundred,  and  im- 
prisoned not  more  than  six  months. — (Ibid.,  s.  3.) 

See  sections  512-515,  Revised  Statutes,  and  notes  thereto. 

Sec.  3747.  [Instructions  to  officers  naaking  contracts.]  It  shall  be  the  duty 
of  the  Secretary  of  War,  of  the  Secretary  of  the  Xavy,  and  of  the  Secretary  of 
the  Interior  to  furnish  every  officer  appointed  by  them  with  authority  to  make 
contracts  on  behalf  of  the  Government  with  a  printed  letter  of  instructions, 
setting  forth  the  duties  of  such  officer,  under  the  two  preceding  sections,  and 
also  to  furnish  therewith  forms,  printed  in  blank,  of  contracts  to  be  made,  and 
the  affidavit  of  returns  required  to  be  ailixed  thereto,  so  that  all  the  instruments 
may  be  as  nearly  uniform  as  possible. — -(Ibid.,  s.  5.) 


1119 


TITLE  XLIV. 

THE    PUBLIC    PROPERTY. 

Sec.  3748.  [TJniforms  and  equipments,  not  to  be  sold,  etc.]  The  clothes, 
arms,  military  outfits,  and  accouterments  furnished  by  the  United  States  to 
any  soldier  shall  not  be  sold,  bartered,  exchanged,  pledged,  loaned,  or  given 
away;  and  no  person  not  a  soldier,  or  duly  authorized  ofTicer  of  the  United 
States,  who  has  possession  of  any  such  clothes,  arms,  military  outfits,  or  accou- 
terments, so  furnished,  and  which  have  been  the  subjects  of  any  such  sale, 
barter,  exchange,  pledge,  loan,  or  gift,  shall  have  any  right,  title,  or  interest 
therein;  but  the  same  may  be  seized  and  taken  wherever  found  by  any  officer 
of  the  United  States,  civil  or  military,  and  shall  thereupon  be  delivered  to  any 
quartermaster,  or  other  officer  authorized  to  receive  the  same.  The  possession 
of  any  such  clothes,  arms,  military  outfits,  or  accouterments  by  any  person  not 
a  soldier  or  officer  of  the  United  States  shall  be  presumptive  evidence  of  such 
a  sale,  barter,  exchange,  pledge,  loan,  or  gift. —  (3  Mar.,  1863,  c.  75,  s.  23,  v. 
12,  p.  735.) 

See  Criminal  Code,  act  March  4,  1909,  section  35  (35  Stat.,  1095),  as  amended  by  act  October 
23,  1918  (40  Stat.,  1016). 

Sec.  3752.  [Purchase  of  lands;  releases  to  United  States.]  Whenever  any 
lands  have  been  or  shall  be  conveyed  to  individuals  or  officers,  for  the  use  or 
benefit  of  the  United  States,  the  President  is  authorized  to  obtain  from  such 
person  a  release  of  his  interest  to  the  United  wStates. —  (28  April,  1828,  c.  41,  s.  3, 
V.  4,  p.  264.) 

See  section  355,  Revised  Statutes,  and  note  thereto. 


1121 


TITLE  XLV. 
PUBLIC  PEINTING,  ADVEETISEMENTS,  AND  PUBLIC  DOCUMENTS. 


Sec.  3826.  [Advertisements  in  Washington,  D.  C]  All  advertisements, 
notices,  and  proposals  for  contracts  for  all  the  Executive  Departments  of  the 
Government,  and  the  laws  passed  by  Congress  and  executive  proclamations  and 
treaties  to  be  published  in  the  District  of  Columbia,  Maryland,  and  Virginia, 
shall  hereafter  be  advertised  by  publication  in  the  three  daily  papers  published 
in  the  District  of  Columbia  having  the  largest  circulation,  one  of  wliich  shall 
be  selected  by  the  Clerk  of  the  House  of  Representatives,  and  in  no  others. 
The  charges  for  such  publications  shall  not  be  higher  than  such  as  are  paid  by 
individuals  for  advertising  in  said  papers,  and  the  same  publications  shall  be 
made  in  each  of  the  said  papers  equally  as  to  frequency:  Provided,  That  no 
advertisement  to  any  State,  district,  or  Territory,  other  than  the  District  of 
Columbia,  Maryland,  or  Virginia,  shall  be  published  in  the  papers  designated, 
unless  at  the  direction  first  made  of  the  proper  head  of  a  Department:  And 
provided  further,  That  this  section  shall  not  be  construed  to  allow  a  greater  com- 
pensation for  the  publication  of  the  laws  passed  by  Congress  and  executive 
proclamations  and  treaties  in  the  papers  of  the  District  of  Columbia  than  is 
provided  by  law  for  such  publications  in  other  papers. — (2  Mar.,  1867,  c.  167,  s. 
10,  V.  14,  p.  467.  29  Mar.,  1867,  c.  13,  s.  2,  v.  15,  p.  7.  20  July,  1868,  c.  176, 
ss.  2,  4,  V.  15,  p.  110.  18  Feb.,  1875,  c.  18,  v.  18,  p.  316.  Repealed  in  part  by 
Stat.  3  Mar.,  1875,  c.  128,  v.  18,  p.  342.     31  July,  1876,  c.  246,  v.  19,  p.  105.) 


"So  much  of  section  three  thousand  eie:ht  hun- 
dred and  twenty-six  of  the  Ile\'ised  Stat- 
utes of  the  United  States  as  refers  to  the 
publication  of  advertisements  in  newspa- 
pers be,  and  thesameisherebv,  repealed.'' 
(Act  Mar.  3,  1875,  18  Stat.,  342.) 

"After  the  fourth  day  of  March,  eicrhteen  hun- 
dred and  seventy-five,  the  publication  of 
the  laws  in  newspapers  shall  cease."  '  Sec. 
79,  R.  S.,  as  amended  by  act  Feb.  IS,  1875, 
18  Stat.,  317.) 

"That  all  executive  proclamations,  &  all  trea- 
ties required  by  law  to  be  published,  shall 
be  published  in  only  one  newspaper,  the 
same  to  be  printed  and  published  in  the 
District  of  Columbia  and  to  )>e  designated 
by  the  Secretary  of  State  and  in  no  case 
of  advertisement  for  contracts  for  the  pub- 
lic ser\ace  shall  the  same  be  published  in 
any  newspaper  published  and  printed  in 
the  District  of  Columbia.unless  the  supplies 
or  labor  covered  by  such  advertisements  are 
to  be  furnished  or  performed  in  said  District 
of  Columbia."  (Sundrv  ci\dl  act,  July  31, 
1876,  19  Stat.,  105.) 

"Hereafter  all  advertisements,  notices,  propos- 
als for  contracts,  and  all  forms  of  advertis- 
ing required  by  law  for  the  several  depart- 
ments of  the  government  may  be  paid  for  at 


a  price  not  to  exceed  the  commercial  rates 
charged  to  private  indi^dduals,  with  the 
usual  discounts;  siich  rates  to  be  ascer- 
tained from  sworn  statements  to  be  fur- 
nished by  the  proprietors  or  publishers  of 
the  newspapers  proposing  so  to  advertise: 
Provided,  That  *  *  *  the  heads  of  the 
several  departments  may  secure  lower  terms 
at  special  rates  whenever  the  public  inter- 
est requires  it."  ("Act  .June  20,  1878,  20 
Stat.,  216.) 

"All  advertising  required  by  existing  laws  to  be 
done  in  the  District  of  Columbia  by  any  of 
the  departments  of  the  government  shall  be 
given  to  one  daily  and  one  weekly  news- 
paper of  each  of  the  two  principal  political 
parties  and  to  one  daily  and  one  weekly 
neutral  newspaper:  Provided,  That  the 
rates  of  compensation  for  such  service  shall 
in  no  case  exceed  the  regular  commercial 
rate  of  the  newspapers  selected;  nor  shall 
any  advertisement  be  paid  for  unless  pub- 
lished in  accordance  with  section  thirty- 
eight  hundred  and  twenty-eight  of  the  Re- 
\-ised  Statutes."  (Act  Jan.  ""21,  1881,  21 
Stat.,  317.) 

See  sections  3709  3718,  3721,  and  3828,  Re\ised 
Statutes. 


1123 


Sec.  3828.  Pt.  2.  REVISED  STATUTES.  Advertisements. 

Sec.  3828.  [Newspaper  advertising;  written  authority  required.]  No  ad- 
vertisement, notice,  or  proposal  for  any  Executive  Department  of  the  Govern- 
ment, or  for  any  Bureau  thereof,  or  for  any  office  therewith  connected,  shall 
be  published  in  any  newspaper  whatever,  except  in  pursuance  of  a  written 
authority  for  such  publication  from  the  head  of  such  Department;  and  no  bill 
for  any  advertising,  or  publication,  shall  be  paid,  unless  there  be  presented, 
with  such  bill,  a  copy  of  such  WTitten  authority. — (15  July,  1870,  c.  292,  s.  2, 
V.  16,  p.  308.) 

See  sections  3709,  3718,  3721,  and  3826,  Revised  Statutes. 


1124 


TITLE  XLVIIL 


COMMERCE    AND    NAVIGATION. 


Sec. 

4205.  Clearance  of  vessels  laden  with  live-oak. 

4233.  Rules  for  preventing  collisions  on  the  Red 
River  of  the  North,  and  rivers  empty- 
ing into  the  Gulf  of  Mexico,  and  their 
tributaries. 

4237.  No  discrimination  in  pilotage  rates. 


Sec. 

4293.  Public  vessels  to  suppress  piracy. 

4294.  Seizure  of  piratical  vessels. 

4296.  Condemnation  of  piratical  vessels. 

4297.  Seizure  of  vessels  fitted  out  for  piracy. 

4298.  Whal  vessels  authorized  to  seize  pirates. 


Sec.  4205.  [Clearance  of  vessels  laden  with  live-oak.]  Collectors  of  the  col- 
lection-districts within  the  States  of  Florida,  Alabama,  Mississippi,  and  Louis- 
iana, before  allowing  a  clearance  to  any  vessel  laden  in  whole  or  in  part  with 
live-oak  timber,  shall  ascertain  satisfactorily  that  such  timber  was  cut  from 
private  lands,  or,  if  from  public  lands,  by  consent  of  the  Department  of  the 
Navy.— (3  Mar.,  1833,  c.  67,  s.  3,  v.  4,  p.  647.) 

Sec.  4233.  [Rules  for  preventing-  collisions  on  the  Red  River  of  the  North  and 
rivers  emptying  into  the  Gulf  of  Mexico,  and  their  tributaries.]  The  following 
rules  for  preventing  collisions  on  the  water,  shall  be  followed  in  the  navigation 
of  vessels  of  the  Navy  and  of  the  mercantile  marine  of  the  L^nited  States: 


This  section  has  been  superseded  and  repealed 
by  subsequent  enactments,  except  in  so  far 
as  concerns  navigation  on  the  Red  River  of 
the  North  and  rivers  emptying  into  the 
Gulf  of  Mexico,  and  their  tributaries.  (See 
also  sec.  4412,  R.  S.,  and  note  thereto,  as  to 
executive  regulations  applicable  to  the 
waters  mentioned.)  The  laws  prescribing 
rules  for  preventing  collisions  at  sea  and 
upon  the  Great  Lakes,  harbors,  rivers,  and 
inland  waters  of  the  United  States,  except 
the  Red  River  of  the  North  and  rivers  emp- 
tying into  the  Gulf  of  Mexico  and  their 
tributaries  are  cited  below,  as  follows: 

Rules  for  preventing  collisions  at  sea. — See  act 
of  August  19,  1890  (26  Stat.,  320),  providing 
that  the  regulations  therein  prescribed  ' '  for 
preventing  collisions  at  sea  shall  be  fol- 
lowed by  all  pubUc  and  private  vessels  of 
the  United  States  upon  the  high  seas  and 
in  all  waters  connected  therewith,  navi- 
gable by  seagoing  vessels."  Section  2  of 
said  act  (26  Stat.,  328)  provided  that  "all 
laws  or  parts  of  laws  inconsistent  with  the 
foregoing  regulations  for  preventing  col- 
lisions at  sea  for  the  navigation  of  all  pub- 
lic and  private  vessels  of  the  United  States 
upon  the  high  seas,  and  in  all  waters  con- 
nected therewith  navigable  by  sea-going 
vessels,  are  hereby  repealed . ' ' 

Rules  for  the  Great  Lakes  and  their  connecting 
and  tributary  waters  as  far  east  as  Mont- 
real.—See  act  of  February  8,  1895  (28  Stat., 
645),  providing  that  the  rules  therein  pre- 
scribed for  preventing  collisions  "shall  be 
followed  in  the  navigation  of  all  public  and 


private  vessels  of  the  United  States  upon 
the  Great  Lakes  and  their  connecting  and 
tributary  waters  as  far  east  as  Montreal." 
Section  4  of  said  act  (,28  Stat.,  650)  provided 
"that  all  laws  or  parts  of  laws,  so  far  as  ap- 
plicable to  the  navigation  of  the  Great 
Lakes  and  their  connecting  and  tributary 
waters  as  far  east  as  Montreal,  inconsistent 
with  the  foregoing  rules  are  hereby  re- 
pealed." 
Rules  for  harbors,  rivers,  and  inland  waters  of 
the  L^nited  States,  except  the  Great  Lakes 
and  their  connecting  and  tributary  waters 
as  far  east  as  Montreal,  and  the  Red  River 
of  the  North  and  rivers  emptying  into  the 
Gulf  of  Mexico  and  their  tributaries. — See 
act  of  June  7,  1897  (30  Stat.,  96),  providing 
that  the  regulations  therein  prescribed  for 
preventing  collision  "shall  be  followed  by 
all  vessels  navigating  all  harbors,  rivers, 
and  inland  waters  of  the  United  States, 
except  the  Great  Lakes  and  their  connect- 
ing and  tributary  waters  as  far  east  as  Mont- 
real and  the  Red  River  of  the  North  and 
rivers  emptying  into  the  Gulf  of  Mexico 
and  their  tributaries,  and  are  hereby  de- 
clared special  rules  duly  made  by  local 
authority."  Section  5  of  said  act  (.30  Stat., 
103)  provided  that  section  4233,  and  cer- 
tain other  sections  of  the  Revised  Statutes 
and  certain  laws  subsequent  to  the  Re- 
vised Statutes, and  all  amendments  tliereto, 
"are  hereby  repealed  so  far  as  the  harbors, 
rivers,  and  inland  waters  aforesaid  (except 
the  Great  Lakes  and  their  connecting  and 
tributary  waters  as  far  east  as  Montreal  and 


1125 


Sec.  4233.  PL  2.  REVISED  STATUTES.  Navigation. 

the  Red  River  of   the   North  and    rivers  Rules  for  regattas. — Regulations  to  promote  the 

emptying  into  the  Gulf  of  Me.xico,  and  safety  of  life  on  navigable  waters  during 

their  tributaries)  are  concerned."  regattas  or  marine  parades  are  made  and 

Rules  for  motor  boats. — By  act  of  June  9,  1910  i           enforced  pursuant  to  act  April  28,   1908 

(3G   Stat.,   4()2),   special  rules  were   pre-  (35  Stat.,  69) 


scribed  for  motor  boats  on  the  navigable 
waters  of  the  United  States. 


See  act  of  P'ebniary  19,  1895  (28  Stat.,  672), 
and  note  thereto;  see  also  acts  of  Septem- 
ber 7,  1916,  section  12  (39  Stat.,  732),  and 
July  9,  1918,  (40  Stat.,  893). 


STEAM    AND    SAIL    VESSELS. 

Rule  1.  Every  steam  vessel  which  is  under  sail  and  n(^t  under  steam 
shall  be  considered  a  sail  vessel;  and  every  steam  vessel  which  is  under  steam, 
whether  under  sail  or  not,  shall  be  considered  a  steam  vessel.  The  words 
steam  vessel  shall  include  any  vessel  propelled  by  machinery. 

This  rule  was  expressly  reenacted  to  read  as  above  by  act  of  March  3,  1905  (33  Stat.,  1032). 

LIGHTS. 

Rule  two.  The  lights  mentioned  in  the  following  rules,  and  no  others, 
shall  be  carried  in  all  weathers,  between  sunset  and  sunrise. 

Rule  three.  All  ocean-going  steamers,  and  steamers  carrying  sail,  shall, 
when  under  way,  carrj^ — 

(A)  At  the  foremast  head,  a  bright  white  light,  of  such  a  character  as  to 
be  visible  on  a  dark  night,  with  a  clear  atmosphere,  at  a  distance  of  at  least 
five  miles,  and  so  constructed  as  to  show  a  uniform  and  unbroken  light  over 
an  arc  of  the  horizon  of  twenty  points  of  the  compass,  and  so  fixed  as  to  throw 
the  light  ten  points  on  each  side  of  the  vessel,  namely,  from  right  ahead  to 
two  points  abaft  the  beam  on  either  side. 

(B)  On  the  starboard  side,  a  green  light,  of  such  a  character  as  to  be 
visible  on  a  dark  night,  with  a  clear  atmosphere,  at  a  distance  of  at  least  two 
miles,  and  so  constructed  as  to  show  a  uniform  and  unbroken  light  over  an 
arc  of  the  horizon  of  ten  points  of  the  compass,  and  so  fixed  as  to  throw  the 
light  from  right  ahead  to  two  points  abaft  the  beam  on  the  starboard  side. 

(C)  On  the  port  side,  a  red  light,  of  such  a  character  as  to  be  visible  on 
a  dark  night,  with  a  clear  atmosphere,  at  a  distance  of  at  least  two  miles,  and 
so  constructed  as  to  show  a  uniform  and  unbroken  light  over  an  arc  of  the 
horizon  of  ten  points  of  the  compass,  and  so  fixed  as  to  throw  the  light  from 
right  ahead  to  two  points  abaft  the  beam  on  the  port  side. 

The  green  and  red  lights  shall  be  fitted  with  inboard  screens,  projecting 
at  least  three  feet  forward  from  the  lights,  so  as  to  prevent  them  from  being 
seen  across  the  bow. 

Rule  four.  Steam-vessels,  when  towing  other  vessels,  shall  carry  two 
})right  white  mast-head  lights  vertically,  in  addition  to  their  side-lights,  so  as 
to  distinguish  them  from  other  steam-vessels.  Each  of  these  mast-head 
lights  shall  be  of  the  same  character  and  construction  as  the  mast-head  lights 
prescribed  by  Rule  three. 

Rule  five.  All  steam-vessels,  other  than  ocean-going  steamers  and  steamers 
carrying  sail,  shall,  when  under  way,  carry  on  the  starboard  and  port  sides 
lights  of  the  same  character  and  construction  and  in  the  same  position  as  are 
prescribed  for  side-lights  by  Rule  three,  except  in  the  case  provided  in  Rule  six. 

Rule  six.  River-steamers  navigating  waters  flowing  into  the  Gulf  of 
Mexico,  and  their  tributaries,  shall  carry  the  following  lights,  namely:    One 

1126 


Navigation.  Pt.  2.  REVISED  STATUTES.  Sec.  4233. 

red  light  on  the  outboard  side  of  the  port  smoke-pipe,  and  one  green  hght  on 
the  outboard  si^e  of  the  starboard  smoke-pipe.  Such  Kghts  shall  show  both 
forward  and  abeam. on  their  respective  sides. 

Rule  seven.  All  coasting  steam-vessels,  and  steam-vessels  other  than 
ferry-boats  and  vessels  otherwise  expressly  provided  for,  navigating  the  bays, 
lakes,  rivers,  or  other  inland  waters  of  the  United  States,  except  those  men- 
tioned in  Rule  six,  shall  carry  the  red  and  green  lights,  as  prescribed  for  ocean- 
going steamers;  and,  in  addition  thereto,  a  central  range  of  two  white  lights; 
the  after-light  being  carried  at  an  elevation  of  at  least  fifteen  feet  above  the 
light  at  the  head  of  the  vessel.  The  head-light  shall  be  so  constructed  as  to 
show  a  good  light  through  twenty  points  of  the  compass,  namely :  from  right 
ahead  to  two  points  abaft  the  beam  on  either  side  of  the  vessel;  and  the 
after-light  so  as  to  show  all  around  the  horizon.  The  lights  for  ferryboats, 
barges  and  canal  boats  when  in  tow  of  steam  vessels,  shall  be  regulated  by 
such  rules  as  the  Board  of  Supervising  Inspectors  of  Steam  Vessels  shall 
prescribe. 

This  rule  was  expressly  amended  to  read  as  above  by  act  of  March  3,  1893  (27  Stat.,  557). 

Rule  eight.  Sail-vessels,  under  way  or  being  towed,  shall  carry  the  same 
lights  as  steam-vessels  under  way,  with  the  exception  of  the  white  mast-head 
lights,  which  they  shall  never  carry. 

Rule  nine.  Whenever,  as  in  case  of  small  vessels  during  bad  weather,  the 
green  and  red  lights  cannot  be  fixed,  these  lights  shall  be  kept  on  deck,  on 
their  respective  sides  of  the  vessel,  ready  for  instant  exhibition,  and  shall,  on 
the  approach  of  or  to  other  vessels,  be  exliibited  on  their  respective  sides  in 
sufficient  time  to  prevent  collision,  in  such  manner  as  to  make  them  most 
visible,  and  so  that  the  green  light  shall  not  be  seen  on  the  port  side,  nor  the 
red  light  on  the  starboard  side.  To  make  the  use  of  these  portable  lights 
more  certain  and  easy,  they  shall  each  be  painted  outside  with  the  color  of 
the  light  they  respectively  contain,  and  shall  be  provided  with  suitable  screens. 

Rule  ten.  All  vessels,  whether  steam-vessels  or  sail-vessels,  when  at 
anchor  in  roadsteads  or  fairways,  shall,  between  sunset  and  sunrise,  exhibit 
where  it  can  best  be  seen,  but  at  a  height  not  exceeding  twenty  feet  above 
the  hull,  a  white  light  in  a  globular  lantern  of  eight  inches  in  diameter,  and 
so  constructed  as  to  show  a  clear,  uniform,  and  unbroken  light,  visible  all 
around  the  horizon,  and  at  a  distance  of  at  least  one  mile. 

Rule  eleven.  Sailing  pilot-vessels  shall  not  carry  the  lights  required  for 
other  sailing-vessels,  but  shall  carry  a  white  light  at  the  mast-head,  visible 
all  around  the  horizon,  and  shall  also  exhibit  a  flare-up  light  every  fifteen 
minutes. 

Steam  pilot  boats  shall,  in  addition  to  the  masthead  light  and  green  and 
red  side  lights  required  for  ocean  steam  vessels,  carry  a  red  light  hung  ver- 
tically from  thi'ee  to  five  feet  above  the  foremast  headlight,  for  the  purpose  of 
distinguishing  such  steam  pilot  boats  from  other  steam  vessels. 

This  rule  was  expre.ssly  amended  to  read  as  above  by  act  of  March  3,  1897,  section  5  (29 
Stat.,  689),  which  added  thereto  the  second  paragraph  as  above  set  forth. 

Rule  twelve.  Coal-boats,  trading-boats,  produce-boats,  canal-boats,  oyster- 
boats,  fishing-boats,  rafts,  or  other  water-craft,  navigating  any  bay,  harbor, 

1127 


Sec.  4233.  Pt.  2.  REVISED  STATUTES.  Navigation. 

or  river,  by  hand-power,  horse-power,  sail,  or  by  the  current  of  the  river,  or 
which  shall  be  anchored  or  moored  in  or  near  the  channel  or  fainvay  of  any 
bay,  harbor,  or  river,  shall  carry  one  or  more  good  white  lights,  which  shall 
be  placed  in  such  manner  as  shall  be  prescribed  by  the  board  of  supervising 
inspectors  of  steam- vessels. 

Rule  thirteen.  Open  boats  shall  not  be  required  to  carry  the  side-lights 
required  for  other  vessels,  but  shall,  if  they  do  not  carry  such  lights,  carry  a 
lantern  having  a  green  slide  on  one  side  and  a  red  slide  on  the  other  side;  and, 
on  the  approach  of  or  to  other  vessels,  such  lantern  shall  be  exhibited  in  suffi- 
cient time  to  prevent  collision,  and  in  such  a  manner  that  the  green  light  shall 
not  be  seen  on  the  port  side,  nor  the  red  light  on  the  starboard  side.  Open 
boats,  when  at  anchor  or  stationary,  shall  exhibit  a  bright  white  light.  They 
shall  not,  however,  be  prevented  from  using  a  fiare-up,  in  addition,  if  con- 
sidered expedient. 

Rule  fourteen.  The  exhibition  of  any  light  on  board  of  a  vessel  of  war  of 

the  United  States  may  be  suspended  whenever,  in  the  opinion  of  the  Secretary 

of  the  Navy,  the  commander  in  chief  of  a  squadron,  or  the  commander  of  a 

vessel  acting  singly,  the  special  character  of  the  service  may  require  it.     The 

exhibition  of  any  light  on  board  of  a  revenue  cutter  of  the  United  States  may 

be  suspended  whenever,  in  the  opinion  of  the  commander  of  the  vessel,  the 

special  character  of  the  service  may  require  it. 

This  rule  was  expressly  reenacted  to  read  as  above  by  act  of  March  3,  1897,  section  12  (29 
Stat.,  690). 

FOG  SIGNALS. 

Rule  fifteen,  (a)  Whenever  there  is  a  fog,  or  thick  weather,  whether  by 
day  or  night,  fog  signals  shall  be  used  as  follows:  Steam  vessels  under  way 
shall  sound  a  steam  w^histle  placed  before  the  funnel,  not  less  than  eight  feet 
from  the  deck,  at  intervals  of  not  more  than  one  minute.  Steam  vessels,  when 
towing,  shall  sound  three  blasts  of  quick  succession  repeated  at  intervals  of  not 
more  than  one  minute,  (b)  Sail  vessels  under  way  shall  sound  a  foghorn  at 
intervals  of  not  more  than  one  minute,  (c)  Steam  vessels  and  sail  vessels, 
when  not  under  way,  shall  sound  a  bell  at  intervals  of  not  more  than  two  min- 
utes. 

(D)  Coal-boats,  trading-boats,  produce-boats,  canal-boats,  oyster-boats, 
fishing-boats,  rafts,  or  other  water-craft,  navigating  any  bay,  harbor,  or  river, 
by  hand-power,  horse-power,  sail,  or  by  the  current  of  the  river,  or  anchored 
or  moored  in  or  near  the  channel  or  fairway  of  any  bay,  harbor,  or  river,  and 
not  in  any  port,  shall  sound  a  fog-horn,  or  equivalent  signal,  which  shall  make 
a  sound  equal  to  a  steam-whistle,  at  intervals  of  not  more  than  two  minutes. 

This  section  was  expressly  amended  by  act  of 
March  3,  1897,  section  12  (29  Stat.,  690\ 
which  reenacted  clauses  (a),  (b),  and  (c), 


to  read  as  above,  and  made  no  modification 
in  clause  (D). 


STEERING  AND  SAILING  RULES. 

Rule  16.  Risk  of  collision  can,  when  circumstances  permit,  be  ascertained 
by  carefully  watching  the  compass  bearing  of  an  approaching  vessel.  If  the 
bearing  does  not  appreciably  change  such  risk  should  be  deemed  to  exist. 

This  section  was  expressly  reenacted  to  read  as  above  by  act  of  March  3,  1897,  section  12  (29 
Stat.,  690). 

1128 


Navigation.  PL  2.  REVISED  STATUTES.  Sec.  4233. 

Rule  17.  When  two  sailing  vessels  are  approaching  one  another,  so  as  to 
involve  risk  of  collision,  one  of  them  shall  keep  out  of  the  way  of  the  other,  as 
follows,  namely: 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the  way  of  a  vessel 
which  is  close-hauled. 

(b)  A  vessel  which  is  close-hauled  on  the  port  tack  shall  keep  out  of  the 
way  of  a  vessel  which  is  close-hauled  on  the  starboard  tack. 

(c)  When  both  are  running  free,  with  the  wind  on  different  sides,  the 
vessel  which  has  the  wind  on  the  port  side  shall  keep  out  of  the  way  of  the 
other. 

(d)  When  both  vessels  are  running  free,  with  the  wind  on  the  same  side, 
the  vessel  which  is  to  the  windward  shall  keep  out  of  the  way  of  the  vessel  which 
is  to  the  leeward. 

(e)  A  vessel  which  has  the  wind  aft  shall  keep  out  of  the  way  of  the  other 
vessel. 

This  section  -was  expressly  reenacted  to  read  as  above  by  act  of  March  3,  1897,  section  12  (29 
Stat.,  690). 

Rule  eighteen.  If  two  vessels  under  steam  are  meeting  end  on,  or  nearly 
end  on,  so  as  to  involve  risk  of  collision,  the  helms  of  both  shall  be  put  to  port, 
so  that  each  may  pass  on  the  port  side  of  the  other. 

Rule  nineteen.  If  two  vessels  under  steam  are  crossing  so  as  to  involve 
risk  of  collision,  the  vessel  which  has  the  other  on  her  own  starboard  side  shall 
keep  out  of  the  way  of  the  other. 

Rule  twenty.  If  two  vessels,  one  of  which  is  a  sail-vessel  and  the  other 
a  steam-vessel,  are  proceeding  in  such  directions  as  to  involve  risk  of  collision, 
the  steam-vessel  shall  keep  out  of  the  way  of  the  sail-vessel. 

Rule  twenty-one.  Every  steam-vessel,  when  approaching  another  vessel, 
so  as  to  involve  risk  of  collision,  shall  slacken  her  speed,  or,  if  necessary,  stop 
and  reverse;  and  every  steam-vessel  shall,  when  in  a  fog,  go  at  a  moderate 
speed. 

Rule  twenty-two.  Every  vessel  overtaking  any  other  vessel  shall  keep 
out  of  the  way  of  the  last-mentioned  vessel. 

Rule  twenty-three.  Where,  by  Rules  seventeen,  nineteen,  twenty,  and 
twenty- two,  one  of  two  vessels  shall  keep,  out  of  the  way,  the  other  shall  keep 
her  course,  subject  to  the  qualifications  of  Rule  twenty-four. 

Rule  twenty-four.  In  construing  and  obeying  these  rules,  due  regard 
must  be  had  to  all  dangers  of  navigation,  and  to  any  special  circumstances 
which  may  exist  in  any  particular  case  rendering  a  departure  from  them  neces- 
sary in  order  to  avoid  immediate  danger. 

Rule  twenty-five.  A  sail  vessel  which  is  being  overtaken  by  another  vessel 
during  the  night  shall  show  from  her  stern  to  such  last-mentioned  vessel  a  torch 
or  a  flare-up  light. 

This  rule  was  added  to  section  42.33,  Revised   Statutes,  as   Rule  twenty-five  thereof,  by 
act  of  March  3,  1897,  section  13  (29  Stat.,  690). 

Rule  twenty-six.  Nothing  in  these  rules  shall  exonerate  any  ship,  or  the 
owner,  or  master,  or  crew  thereof,  from  the  consequences  of  any  neglect  to 
carry  lights  or  signals,  or  of  any  neglect  to  keep  a  proper  lookout,  or  of  the  neg- 

1129 


Sec.  4296.  Pt.  2.  REVISED  STATUTES.  Navigation. 

lect  of  any  precaution  which  may  be  required  by  the  ordinary  practice  of  seamen 
or  by  the  special  circumstances  of  the  case. 

This  rule  was  added  to  section  4233,  Revised  Statutes,  as  Rule  twenty-six  thereof,  by  act 
of  March  3,  1S97,  section  13  (29  Stat.,  090). 

Sec.  4237.  [No  discrimination  in  pilotage  rates.]  No  regulations  or  provi- 
sions shall  be  adopted  by  any  State  which  shall  make  any  discrimination  in 
the  rate  of  pilotage  or  half-pilotage  between  vessels  sailing  between  the  ports 
of  one  State  and  vessels  sailing  between  the  ports  of  difl'erent  States,  or  any 
discrimination  against  vessels  propelled  in  whole  or  in  part  by  steam,  or  against 
national  vessels  of  the  United  States;  and  all  existing  regulations  or  pro- 
visions making  any  such  discrimination  are  annulled  and  abrogated. —  (13 
July,  1866,  c.  177,  v.  14,  p.  93.) 


See  note  to  Constitution,  Article  I,  section  8, 
clause  13,  under  "11.  Freedom  from  State 
interference,"    subheading,    "  Exemption 


from  State  laws  requiring  employment  of 
pilots." 


Sec.  4293.  [Public  vessels  to  suppress  piracy.]  The  President  is  authorized 
to  employ  so  many  of  the  public  armed  vessels  as  in  his  judgment  the  service 
may  require,  with  suitable  instructions  to  the  commanders  thereof,  in  pro- 
tecting the  merchant-vessels  of  the  United  States  and  their  crews  from  piratical 
aggressions  and  depredations. —  (3  Mar.,  1819,  c.  77,  s.  1,  v.  3,  p.  510.  30  Jan., 
1823,  c.  7,  V.  3,  p.  721.) 

Sec.  4294.  [Seizure  of  piratical  vessels.]  The  President  is  authorized  to 
instruct  the  commanders  of  the  public  armed  vessels  of  the  United  States  to 
subdue,  seize,  take,  and  send  into  any  port  of  the  United  States,  any  armed 
vessel  or  boat,  or  any  vessel  or  boat  the,  crew  whereof  shall  be  armed,  and  which 
shall  have  attempted  or  committed  any  pu-atical  aggression,  search,  restraint, 
depredation,  or  seizure,  upon  any  vessel  of  the  United  States,  or  of  the  citizens 
thereof,  or  upon  any  other  vessel;  and  also  to  retake  any  vessel  of  the  United 
States,  or  its  citizens,  which  may  have  been  unlawfully  captured  upon  the  high 
seas.— (3  Mar.,  1819,  c.  77,  s.  2,  v.  3,  p.  512.  30  Jan.,  1823,  c.  7,  v.  3,  p.  721. 
The  Marianna  Flora,  11  Wh.,  1;  The  Palm>Ta,  12  Wh.,  1.) 

Sec.  4296.  [Condemnation  of  piratical  vessels.]  T\Tienever  any  vessel, 
which  shall  have  been  built,  purchased,  fitted  out  in  whole  or  in  part,  or  held 
for  the  pm-pose  of  being  employed  in  the  commission  of  any  piratical  aggression, 
search,  restraint,  depredation,  or  seizure,  or  in  the  commission  of  any  other  act 
of  piracy  as  defined  by  the  law  of  nations,  or  from  which  any  piratical  aggres- 
sion, search,  restraint,  depredation,  or  seizure  shall  have  been  first  attempted 
or  made,  is  captured  and  brought  into  or  captured  in  any  port  of  the  United 
States,  the  same  shall  be  adjudged  and  condemned  to  their  use,  and  that  of  the 
captors  after  due  process  and  trial  in  any  court  having  admiralty  jiu-isdiction, 
and  which  shall  be  holden  for  the  district  into  which  such  captured  vessel  shall 
be  brought;  and  the  same  court  shall  thereupon  order  a  sale  and  distribution 
thereof  accordingly,  and  at  its  discretion. —  (3  IMar.,  1819,  c.  77,  s.  4,  v.  3,  p. 
513.     30  Jan.,  1823,  c.  7,  v.  3,  p.  721.     5  Aug.,  1861,  c.  48,  s.  1,  v.  12,  p.  314.) 


Bv  the  Navy  personnel  act  of  March  3,  1899, 
section  13  (30  Stat.,  1007),  "all  provisions 
of  law  authorizing  the  distribution  among 
captors  of  the  whole  or  any  portion  of  tlie 


proceeds  of  vessels,  or  any  property  here- 
after captured,  condemned  as  prize,"  were 
repealed. 


1130 


Navigation.  Pt.  2.  REVISED  STATUTES.  Sec.  4298. 

Sec.  4297.  [Seizure  of  vessels  fitted  out  for  piracy.]  Any  vessel  built,  pur- 
chased, fitted  out  in  whole  or  in  part,  or  held  for  the  purpose  of  being  employed 
in  the  commission  of  any  piratical  aggression,  search,  restraint,  depredation, 
or  seizure,  or  in  the  commission  of  any  other  act  of  piracy,  as  defined  by  the 
law  of  nations,  shall  be  liable  to  be  captured  and  brought  into  any  port  of  the 
United  States  if  found  upon  the  high  seas,  or  to  be  seized  if  found  in  any  port 
or  place  within  the  United  States,  whether  the  same  shall  have  actually  sailed 
upon  any  piratical  expedition  or  not,  and  whether  any  act  of  piracy  shall  have 
been  committed  or  attempted  upon  or  from  such  vessel  or  not;  and  any  such 
vessel  may  be  adjudged  and  condemned,  if  captured  by  a  vessel  authorized  as 
hereinafter  mentioned,  to  the  use  of  the  United  States  and  to  that  of  the  cap- 
tors, and  if  seized  by  a  collector,  surveyor,  or  marshal,  then  to  the  use  of  the 
United  States.— (5  Aug.,  1861,  c.  48,  s.  1,  v.  12,  p.  314.) 
See  note  to  section  4296,  Re-vised  Statutes. 

Sec.  4298.  [What  vessels  authorized  to  seize  pirates.]  The  President  is 
authorized  to  instruct  the  commanders  of  the  public  armed  vessels  of  the 
United  States,  and  to  authorize  the  commanders  of  any  other  armed  vessels 
sailing  under  the  authority  of  any  letters  of  marque  and  reprisal  granted  by 
Congress,  or  the  commanders  of  any  other  suitable  vessels,  to  subdue,  seize, 
take,  and,  if  on  the  high  seas,  to  send  into  any  port  of  the  United  States,  any 
vessel  or  boat  built,  purchased,  fitted  out,  or  held  as  mentioned  in  the  preceding 
section.— (5  Aug.,  1861,  c.  48,  s.  2,  v.  12,  p.  315.) 


54641°— 22 72  1131 


TITLE  LI. 


REGULATION    OF    FISHERIES 


Sec.  4397.  [Executive  Departments  to  aid  investigations.]  The  heads  of 
the  several  Executive  Departments  shall  cause  to  be  rendered  all  necessary  and 
practicable  aid  to  the  commissioner  in  the  prosecution  of  his  investigations 
and  inquiries.— (9  Feb.,  1S71,  Res.  No.  22,  s.  3,  v.  16,  p.  594.) 


The  "commissioner"  referred  to  in  this  section 
is  the  Commissioner  of  Fish  and  Fisheries, 
chief  of  the  Bureau  of  Fisheries,  Depart- 
ment of  Commerce. 

By  act  of  May  31,  1880  (21  Stat.,  151),  the  Sec- 
retary of  the  Navy  was  directed  to  place 


the  vessels  of  the  United  States  Fish  Com- 
mission on  the  same  footing  with  the  Navy 
Department  as  those  of  the  United  States 
Coast  and  Geodetic  Survey.  (See  sections 
4684,  4686-4688,  Revised  Statutes,  as  to 
Coast  and  Geodetic  Survey.) 


1133 


TIT].E  LII. 

REGULATION  OF  STEAM -VESSELS. 

Sec.  4400.  [What  vessels  are  subject  to  the  provisions  of  this  title.]  All 
steam  vessels  navigating  any  waters  of  the  United  States  which  are  common 
highways  of  commerce  or  open  to  general  or  competitive  navigation,  except- 
ing public  vessels  of  the  United  States,  vessels  of  other  countries,  and  boats 
propelled  in  whole  or  in  part  by  steam  for  navigating  canals,  shall  be  subject 
to  the  provisions  of  this  title,     *     *     * 


This  section  was  reenacted  to  read  as  above 
by  act  of  March  17,  1900  (34  Stat..  68). 


The  omitted  portion  of  the  reenacted  sec- 
tion does  not  relate  to  the  Navv. 


Sec.  4412.  [Regulations  as  to  steamers  passing  each  other.]  The  board  of 
supervising  inspectors  shall  establish  such  regulations  to  be  observed  by  all 
steam-vessels  in  passing  each  other,  as  they  shall  from  time  to  time  deem  neces- 
sary for  safety;  two  printed  copies  of  such  regulations,  signed  by  them,  shall  be 
furnished  to  each  of  such  vessels,  and  shall  at  all  times  be  kept  posted  up  in 
conspicuous  places  in  such  vessels. — (Ibid.,  s.  29,  p.  470.) 


By  act  of  June  7,  1897,  section  5  (30  Stat.,  103), 
it  was  provided  that  sections  4233  and 
4412,  Revised  Statutes,  '(wdth  the  regula- 
tions made  in  pursuance  thereof,  except 
the  rules  and  regulations  for  the  govern- 
ment of  pilots  of  steamers  naviirating  the 
Red  River  of  the  North  and  rivers  empty- 
ing into  the  Gulf  of  Mexico  and  their 
tributaries,  and  except  the  rules  for  the 
Great  Lakes  and  their  connecting  and 
tributary  waters  as  far  east  as  Montreal), '' 
and  certain  other  statutory  enactments, 
and  all  amendments  thereto,  "are  hereby 
repealed  so  far  as  the  harbors,  rivers,  and 
inland  waters  aforesaid  (except  the  Great 
Lakes  and  their  connecting  and  tributary 
waters  as  far  east  as  Montreal  and  the  Red 
River  of  the  North  and  rivers  emptying 
into  the  Gulf  of  Mexico,  and  their  tribu- 
taries) are  concerned."' 

By  act  of  January  18,  1897  (29  Stat.,  489),  it 
was  provided  that  all  vessels  "propelled 
by  gas.  fluid,  naphtha,  or  electric  motors,"    ; 

Sec.  4413.  [Penalty  for  violation  of  regulations.]  Every  pilot,  engineer, 
mate,  or  master  of  any  steam  vessel  who  neglects  or  willfully  refuses  to  observe 
the  regulations  established  in  pursuance  of  the  preceding  section,  shall  be  liable 
to  a  penalty  of  fifty  dollars,  and  for  all  damages  sustained  by  any  passenger, 
in  his  person  or  baggage,  by  such  neglect  or  refusal. —  (Ibid.) 

See  note  to  section  4412,  Revised  Statutes. 

Sec.  4438.  [Licenses  of  officers  by  inspectors.]  The  boards  of  local  inspectors 
shall  license  and  classif^^  the  masters,  chief  mates,  and  second  and  third  mates, 
if  in  charge  of  a  watch,  engineers,  and  pilots  of  all  steam  vessels,  and  the  masters 
of  sail  vessels  of  over  seven  hundred  gross  tons,  and  all  other  vessels  of  over  one 


mthout  regard  to  tonnage  or  use,  shall  be 
subject  to  the  provisions  of  section  4412 
of  the  Revised  Statutes. 

By  act  of  June  9,  1910  (36  Stat.,  462),  special 
rules  were  prescribed  for  motor  boats  on 
the  navigable  waters  of  the  United  States. 

See  note  to  preamble  of  section  4233,  Revised 
Statutes;  and  see  acts  of  Februarv  19,  1895 
(28  Stat.,  672),  and  July  9,  19 18 '(40  Stat.. 
893K 

For  rules  published  in  accordance  with  section 
4412,  Revised  Statutes,  signed  by  the- 
members  of  the  Board  of  Supervising 
Inspectors,  "for  the  government  of  pilots 
of  vessels  propelled  by  steam,  gas,  fluid, 
naphtha,  or  electric  motors  and  of  other 
vessels  propelled  by  machinery,  navigat- 
ing the  Red  River  of  the  North,  the 
Mississippi  River,  and  other  rivers  empty- 
ing into  the  Gulf  of  Mexico,  and  their 
tributaries,''  see  Navy  Regulations,  1920, 
page  814. 


1135 


Sec.  4438.  Ft.  2.  REVISED  STATUTES.  Steam-vessels. 

liundred  gross  tons  carrying  passengers  for  hire.  It  shall  be  unlaAv-ful  to  employ 
any  person  or  for  any  person  to  serve  as  a  master,  chief  mate,  engineer,  or  pilot 
of  any  steamer  or  as  master  of  any  sail  vessel  of  over  seven  hundred  gross  tons  or 
of  any  other  vessel  of  over  one  hundred  gross  tons  carrying  passengers  for  hire 
who  is  not  licensed  by  the  inspectors;  and  anyone  violating  this  section  shall  be 
liable  to  a  penalty  of  one  hundred  dollars  for  each  offense. 

This  section  was  cxpreasly  amended  and  reen-  [  the  license  required  by  section  4438,  Revised 

acted  to  read  as  above  by  act  of  May  28,  i  Statutes,    although    he   may    be   eligible,    by 

1908,  section  2  (35  Stat.,  425.)  j  virtue  of  his  commission,  to  take  command  of 

A  naval  officer  can  not  lawfully  serve  as  a  steam  vessel  of  the  United  States  in  the  naval 

master  of  a  private  steam  vessel  in  the  merchant  i  service.     (15  Op.  Atty.  Gen.,  61,  Oct.  26,  1875.) 

service  vnthout  having   previously  obtained  j 


1136 


TITLE   LIV. 


PRIZE. 


Sec. 

4613.  Application  of  provisions  of  Title. 

4614.  "Vessels  of  the  Navy''  defined. 

4615.  Duties     of     commanding    officer     upon 

making  capture. 

4616.  Statement  of  claim  to  share  in  prize. 

4617.  Duties  of  prize-master. 

4618.  Libel   and   proceedings   by    district   at- 

torney. 

4619.  Duties   of   district   attorneys;  claim   for 

damages  against  captors. 

4621.  Appointment    of    prize-commissioners; 

retired  naval  officer. 

4622.  Duties  of  prize-commissioners. 

4623.  Duties  of  marshal. 

4624.  Appraisal,    &c.,   of   property   taken    for 

Government. 

4625.  Proceedings  for  adjudication;    property 

not  sent  in. 

4626.  Delivery  of  property  on  stipulation. 

4627.  When  property  may  be  sold. 

4628.  Mode  of  making  sale. 

4629.  Transfer  of  property  to  another  district 

for  sale. 


4630. 
4631. 
4632. 
4633. 
4634. 
4636. 
4637. 
4638. 
4639. 
4640. 
4641. 
4642. 
4644. 
4645. 
4646. 

4647. 

4650. 
4651, 
4652. 


Share  of  captors. 

Distribution  of  proceeds  to  captors. 

What  vessels  entitled  to  share. 

WTiat  officers  entitled  to  share. 

Determination  of  shares. 

Appeals  and  amendments  in  prize-cases. 

Powers  of  district  court  after  appeal. 

Security  for  costs. 

Costa  and  expenses. 

Payment  of  expenses  from  prize-fund. 

Payment  of  prize-money. 

Distribution  of  salvage,  &c. 

Clerks  of  district  courts;  accounts. 

Marshals;  commissions  allowed. 

District  attorney  and  prize-commission- 
ers; compensation. 

District  attorney  and  prize-commission- 
ers; accounts. 

Auctioneers;  commissions. 

Witnesses'  fees. 

Recaptures;  salvage. 


Sec.  4613.  [Application  of  provisions  of  Title.]  The  provisions  of  this  Title 
shall  apply  to  all  captures  made  as  prize  by  authority  of  the  United  States, 
or  adopted  and  ratified  by  the  President  of  the  United  States. — (30  June,  1864, 
c.  174,  s.  33,  V.  13,  p.  315.  Mrs.  Alexander's  Cotton,  2  Wall.,  404;  The  Cotton 
Plant,  10  Wall.,  577.) 

See  sections  5310-5311,  Revised   Statutes,  as  to  captures  on  inland  waters  of  the  United 
States. 

Sec.  4614.  ['Vessels  of  the  Navy,"  defined.]  The  term  "vessels  of  the 
Navy,"  as  used  in  this  Title,  shall  include  all  armed  vessels  officered  and  manned 
by  the  United  States,  and  under  the  control  of  the  Department  of  the  Navy. — 
(ibid.,  s.  32.     The  Siren,  1  Low.,  280.) 

Sec.  4615.  [Duties  of  commanding  officer  upon  making  capture.]  The  com- 
manding officer  of  any  vessel  making  a  capture  shall  secure  the  documents  of 
the  ship  and  cargo,  including  the  log-book,  with  all  other  documents,  letters, 
and  other  papers  found  on  board,  and  make  an  inventory  of  the  same,  and 
seal  them  up,  and  send  them,  with  the  inventorv',  to  the  court  in  which  pro- 
ceedings are  to  be  had,  with  a  written  statement  that  they  are  all  the  papers 
found,  and  are  in  the  condition  in  which  they  were  found;  or  explaining  the 
absence  of  any  documents  or  papers,  or  any  change  in  their  condition.  He 
shall  also  send  to  such  court,  as  witnesses,  the  master,  one  or  more  of  the  other 
officers,  the  supercargo,  purser,  or  agent  of  the  prize,  and  any  person  found  on 
board  whom  he  may  suppose  to  be  interested  in,  or  to  have  knowledge  respect- 
ing, the  title,  national  character,  or  destination  of  the  prize.     He  shall  send 


1137 


Sec.  4617.  Pt.  2.  REVISED  STATUTES.  Prize. 

the  prize,  with  the  docnments,  papers,  and  witnesses,  under  charge  of  a  com- 
petent prize-master  and  prize-crew,  into  port  for  adjudication,  explaining  the 
absence  of  any  usual  witnesses;  and  in  the  absence  of  instructions  from  supe- 
rior authority  as  to  the  port  to  which  it  shall  be  sent,  he  shall  select  such  port 
as  he  shall  deem  most  convenient,  in  view  of  the  interests  of  probable  claimants, 
as  well  as  of  the  captors.  If  the  captured  vessel,  or  any  part  of  the  captured 
property,  is  not  in  condition  to  be  sent  in  for  adjudication,  a  survey  shall  be 
had  thereon  and  an  appraisement  made  by  persons  as  competent  and  impartial 
as  can  be  obtained,  and  their  reports  shall  be  sent  to  the  coiirt  in  which  pro- 
ceedings are  to  be  had;  and  such  property,  unless  appropriated  for  the  use  of 
the  Government,  shall  be  sold  by  the  authority  of  the  commanding  officer 
present,  and  the  proceeds  deposited  with  the  assistant  treasurer  of  the  United 
States  most  accessible  to  such  court,  and  subject  to  its  order  in  the  cause. — 
(Ibid.,  s.  1,  p.  306.  The  Sally  Magee,  3  Wall.,  451;  The  Sir  William  Peel,  5 
Wall.,  517.) 

See  "Instructions  for  the  Navy  of  the  United 
States  f:;ovemino;  Maritime  Warfare, ' '  Navy 
Department,  June,  1917;  see  also  sections 


4294-4299,  and  5310-5311,  Revised  Stat- 
utes; and  see  article  15  of  section  1624, 
Revised  Statutes. 


Sec.  4616.  [Statement  of  claim  to  share  in  prize.]  If  an}^  vessel  of  the  United 
States  shall  claim  to  share  in  a  prize,  either  as  having  made  the  capture,  or  as 
having  been  within  signal  distance  of  the  vessel  or  vessels  making  the  capture, 
the  commanding  officer  of  such  vessel  shall  make  out  a  written  statement  of 
his  claim,  with  the  grounds  on  which  it  is  founded,  the  principal  facts  tending 
to  show  what  vessels  made  the  capture,  and  what  vessels  were  within  signal 
distance  of  those  making  the  capture,  with  reasonable  particularity  as  to 
times,  distances,  localities,  and  signals  made,  seen,  or  answered;  and  such 
statement  of  claim  shall  be  signed  by  him  and  sent  to  the  court  in  which  pro- 
ceedings shall  be  had,  and  shall  bo  filed  in  the  cause. — (Ibid.,  s.  2,  p.  307.) 


By  Navy  personnel  act  of  March  3, 1899,  section 
13  (30  Stat.,  1007),  it  was  proAdded  that 
"all  pro\dsions  of  law  authorizing  the 
distribution  among  captors  of  the  whole 
or  any  portion  of  the  proceeds  of  vessels, 
or  any  property  hereafter  captured,  con- 
demned  as   prize,    or   providing   for   the 


payment  of  bounty  for  the  sinking  or 
destruction  of  vessels  of  the  enemy  here- 
after occurring  in  time  of  war,  are  hereby 
repealed." 
See  section  1624,  Revised  Statutes,  articles  16 
and  17;  and  see  sections  5310  and  5311, 
Revised  Statutes. 


Sec.  4617.  [Duties  of  prize-master.]  The  prize-master  shaU  make  his  way 
diligently  to  the  selected  port,  and  there  immediately  deliver  to  a  prize-com- 
missioner the  documents  and  papers,  and  the  inventory  thereof,  and  make 
affidavit  that  they  are  the  same,  and  are  in  the  same  condition  as  delivered  to 
him,  or  explaining  any  absence  or  change  of  condition  therein,  and  that  the 
prize-property  is  in  the  same  condition  as  delivered  to  him,  or  explaining  any 
loss  or  damage  thereto;  and  he  shall  further  report  to  the  district  attorney 
and  give  to  him  all  the  information  in  his  possession  respecting  the  prize  and 
her  capture;  and  he  shall  deliver  over  the  persons  sent  as  witnesses  to  the 
custody  of  the  marshal,  and  shall  retain  the  prize  in  his  custody  until  it  shall 
be  taken  therefrom  by  process  from  the  prize-court. —  (Ibid.,  s.  3.) 

See  "Instructions  for  the  Navy  of  the  United  States  governing  Maritime  Warfare,"  Navy 
Department,  June,  1917. 


1138 


Prize.  PL  2.  REVISED  STATUTES.  Sec.  4622 

Sec.  4618.  [Libel  and  proceedings  by  district  attorney.]  Upon  receiving 
the  report  of  the  prize-master  directed  l>y  tlie  preceding  section,  the  attorney 
of  the  United  States  for  the  district  shall  immediately  file  a  libel  against  such 
prize  property,  and  shall  forthwith  obtain  a  warrant  from  the  court,  directing 
the  marshal  to  take  it  into  his  custody,  and  shall  proceed  diligently  to  obtain 
a  condemnation  and  distribution  thereof;  and  to  that  end  shall  see  that  the 
proper  preparator\"  evidence  is  taken  by  the  prize-commissioners,  and  that 
the  prize-commissioners  also  take  the  depositions  de  bene  esse  of  the  prize-crew, 
and  of  other  transient  persons  cognizant  of  any  facts  bearing  on  condemnation 
or  distribution. —  (Ibid.,  s.  4.) 

Sec.  4619.  [Duties  of  district  attorneys;  claim  for  damages  against  cap- 
tors.] The  district  attorneys  of  the  several  judicial  districts  shall  represent 
the  interests  of  the  United  States  in  all  prize-causes,  and  shall  not  act  as  sepa- 
rate counsel  for  the  captors  on  any  private  retainer  or  compensation  from  them, 
unless  in  a  question  between  the  claimants  and  the  captors,  on  a  demand  for 
damages.  They  shall  examine  all  fees,  costs,  and  expenses,  sought  to  be 
charged  on  any  prize-fund,  and  protect  the  interest  of  the  captors  and  of  the 
United  States.  The  district  attorneys  of  all  districts  in  which  any  prize- 
causes  are  or  may  be  pending  shall,  as  often  as  once  in  three  months,  send  to 
the  Secretarv"  of  the  Navj^  a  statement  of  the  condition  of  all  prize-causes 
pending  in  their  districts,  in  such  form  and  embracing  such  particulars  as  the 
Secretary-  of  the  Navy  shall  require. —  (Ibid.) 

By  section  970,  Revised  Statutes,  it  is  pro\ided  the  person  who  made  the  seizure,  nor  the 


that  ''When,  in  any  prosecution  com- 
menced on  account  of  the  seizure  of  any 
vessel,  goods,  wares,  or  merchandise,  made 
by  any  collector  or  other  ofHcer,  under  any 
act  of  Congress  authorizing  such  seizure, 
Judgment  is  rendered  for  the  claimant,  but 
it  appears  to  the  court  that  there  was 
reasonable  cause  of  seizure,  the  court  shall 
cause  a  proper  certificate  thereof  to  be 
entered,  and  the  claimant  shall  not,  in 
such  case,  be  entitled  to  costs,  nor  shall 


prosecutor,  be  liable  to  suit  or  judgment  on 
account  of  such  suit  or  prosecution:  Pro- 
vided, That  the  vessel,  goods,  wares,  or 
merchandise  be,  after  judgment,  forthwith 
returned  to  such  claimant  or  his  agent." 
See  note  to  Constitution,  Article  I,  section  8, 
clause  13,  under  "IV.  Responsibility  of 
military  authorities  for  illegal  acts"';  see 
also  articles  16  and  17,  section  1624,  Re- 
^■ised  Statutes. 


Sec.  4621.  [Appointment  of  prize-commissioners;  retired  naval  officer.] 
Any  district  court  ma}'  appoint  prize-commissioners,  not  exceeding  three  in 
number;  of  whom  one  shall  be  a  retired  naval  officer,  approved  by  the  Secre- 
tary of  the  Navy,  who  shall  receive  no  other  compensation  than  his  pay  in 
the  Navy,  and  w^ho  shall  protect  the  interests  of  the  captors  and  of  the  Depart- 
ment of  the  Navy  in  the  prize-property;  and  at  least  one  of  the  others  shall 
be  a  member  of  the  bar  of  the  court,  of  not  less  than  three  years'  standing,  and 
acquainted  wdth  the  taking  of  depositions. — (30  June,  1864,  c.  174,  s.  5,  v.  13, 
p.  307.) 

Sec.  4622.  [Dnties  of  prize-commissioners.]  The  prize-commissioners,  or 
one  of  them,  shall  receive  from  the  prize-master  the  documents  and  papers,  and 
inventor}'  thereof,  and  shall  take  the  affidavit  of  the  prize-master  required  by 
section  forty-six  hundred  and  seventeen,  and  shall  forthwith  take  the  testi- 
mony of  the  witnesses  sent  in,  separate  from  each  other,  on  interrogatories 
prescribed  by  the  court,  in  the  manner  usual  in  prize-courts;  and  the  witnesses 
shall  not  be  permitted  to  see  the  interrogatories,  documents,  or  papers,  or  to 
consult  with  counsel,  or  with  any  persons  interested,  without  special  authority 

1139 


Sec.  4624.  PL  2.  REVISED  STATUTES.  Prize. 

from  the  court;  and  witnesses  who  have  the  rights  of  neutrals  shall  be  dis- 
charged as  soon  as  practicable.  The  prize-commissioners  shall  also  take 
depositions  de  bene  esse  of  the  prize-crew  and  others,  at  the  request  of  the 
district  attorney,  on  interrogatories  prescribed  by  the  court.  They  shall  also, 
as  soon  as  any  prize-property  comes  within  the  district  for  adjudication,  examine 
the  same,  and  make  an  inventory  thereof,  founded  on  an  actual  examination, 
and  report  to  the  court  whether  any  part  of  it  is  in  a  condition  requiring  im- 
mediate sale  for  the  interests  of  all  parties,  and  notify  the  district  attorney 
thereof;  and  if  it  be  necessary  to  the  examination  or  making  of  the  inventory 
that  the  cargo  be  unladen,  they  shall  apply  to  the  court  for  an  order  to  the  mar- 
shal to  unlade  the  same,  and  shall,  from  time  to  time,  report  to  the  court  any- 
thing relating  to  the  condition  of  the  property,  or  its  custody  or  disposal,  which 
may  require  any  action  by  the  court,  but  the  custody  of  the  property  shall  be 
in  the  marshal  only.  They  shall  also  seasonably  return  into  court,  sealed  and 
secured  from  inspection,  the  documents  and  papers  which  shall  come  to  their 
hands,  duly  scheduled  and  numbered,  and  the  other  preparatory  evidence, 
and  the  evidence  taken  de  bene  esse,  and  their  own  inventory  of  the  prize- 
property;  and  if  the  captured  vessel,  or  any  of  its  cargo  or  stores,  are  such  as  in 
their  judgment  may  be  useful  to  the  United  States  in  war,  they  shall  report 
the  same  to  the  Secretary  of  the  Navy. —  (Ibid.,  s.  6,  p.  308.) 

Sec.  4623.  [Duties  of  marshal.]  The  marshal  shall  safely  keep  all  prize- 
property  under  warrant  from  the  court,  and  shall  report  to  the  court  any 
cargo  or  other  property  that  he  thinks  requires  to  be  unladen  and  stored,  or 
to  be  sold.  He  shall  insure  prize-property,  if  in  his  judgment  it  is  for  the 
interest  of  all  concerned.  He  shall  keep  in  his  custody  all  persons  found  on 
board  a  prize  and  sent  in  as  witnesses,  until  they  are  released  by  the  prize- 
commissioners  or  the  court.  If  a  sale  of  property  is  ordered,  he  shall  sell  the 
same  in  the  manner  required  by  the  court,  and  collect  the  purchase-money, 
and  forthwith  deposit  the  gross  proceeds  of  the  sales  with  the  assistant  treasurer 
of  the  United  States  nearest  the  place  of  sale,  subject  to  the  order  of  the  court 
in  the  particular  cause;  and  each  marshal  shall  forward  to  the  Secretary  of  the 
Navy,  whenever  and  as  often  as  the  Secretary  of  the  Navy  may  require  it,  a 
full  statement  of  the  condition  of  each  prize  and  of  the  disposal  made  thereof. — 
(Ibid.,  s.  7.) 

Sec.  4624.  [Appraisal,  etc.,  of  property  taken  for  Government.]  Whenever 
any  captured  vessel,  arms,  munitions,  or  other  material  are  taken  for  the  use 
of  the  United  States  before  it  comes  into  the  custody  of  the  prize  court,  it  shall 
be  surveyed,  appraised,  and  inventoried,  by  persons  as  competent  and  im- 
partial as  can  be  obtained,  and  the  survey,  appraisement,  and  inventory  shall 
be  sent  to  the  court  in  which  proceedings  are  to  be  had ;  and  if  taken  afterward, 
sufficient  notice  shall  first  be  given  to  enable  the  court  to  have  the  property 
appraised  for  the  protection  of  the  rights  of  the  claimants  and  captors.  In  all 
cases  of  prize-property  taken  for  or  appropriated  to  the  use  of  the  Govern- 
ment, the  Department  for  whose  use  it  is  taken  or  appropriated  shall  deposit 
the  value  thereof  with  the  assistant  treasurer  of  the  United  States  nearest  to  the 
place  of  the  session  of  the  court,  subject  to  the  order  of  the  court  in  the  cause. — 
(Ibid.,  s.  27,  p.  314.) 

See ''Instructions  for  the  Navy  of  the  United  States  governing  Maritime  Warfare,"  Navy 
Department,  June  1917. 

1140 


Prize.  Pt.  2.  REVISED  STATUTES.  Sec.  4628. 

Sec.  4625.  [Proceedings  for  adjudication;  property  not  sent  in.]  If  by 
reason  of  the  condition  of  the  captured  property,  or  if  because  the  whole  has 
been  appropriated  to  the  use  of  the  United  States,  no  part  of  it  has  been  or  can 
be  sent  in  for  adjudication,  or  if  the  property  has  been  entirely  lost  or  destroyed, 
proceedings  for  adjudication  may  be  commenced  in  any  district  the  Secretary 
of  the  Navy  may  designate;  and  in  any  such  case  the  proceeds  of  anything 
sold,  or  the  value  of  anything  taken  or  appropriated  for  the  use  of  the  United 
States,  shall  be  deposited  wath  the  assistant  treasurer  in  or  nearest  to  that 
district,  subject  to  the  order  of  the  court  in  the  cause.  If,  when  no  property 
can  be  sent  in  for  adjudication,  the  Secretary  of  the  Navy  shall  not,  within 
three  months  after  any  capture,  designate  a  district  for  the  institution  of  pro- 
ceedings, the  captors  may  institute  proceedings  for  adjudication  in  any  district. 
And  if  in  any  case  of  capture  no  proceedings  for  adjudication  are  commenced 
within  a  reasonable  time,  any  parties  claiming  the  captured  property  may,  in 
any  district  court  as  a  court  of  prize,  move  for  a  monition  to  show  cause  why 
such  proceedings  shall  not  be  commenced,  or  institute  an  original  suit  in  such 
court  for  restitution,  and  the  monition  issued  in  either  case  shall  be  served  on 
the  attorney  of  the  United  States  for  the  district,  and  on  the  Secretary  of  the 
Navy,  as  well  as  on  such  other  persons  as  the  court  shall  order  to  be  notified. — 
(30  June,  1864,  c.  174,  s.  28,  v.  13,  p.  314.) 

See  " Instructions  for  the  Navy  of  the  United  States  governing  Maritime  Warfare,''  Xavy 
Department,  June  1917. 

Sec.  4626.  [Delivery  of  property  on  stipulation.]  No  prize-property  shall 
be  delivered  to  the  claimants  on  stipulation,  deposit,  or  other  security,  except 
where  there  has  been  a  decree  of  restitution  and  the  captors  have  appealed 
therefrom,  or  where  the  court,  after  a  full  hearing  on  the  preparatory  proofs, 
has  refused  to  condemn  the  property  on  those  proofs,  and  has  given  the  captors 
leave  to  take  furtlier  proofs,  or  where  the  claimant  of  any  property  shall  satisfy 
the  court  that  the  same  has  a  peculiar  and  intrinsic  value  to  him,  independent 
of  its  market-value.  In  any  of  these  cases,  the  court  may  deliver  the  property 
on  stipulation  or  deposit  of  its  value,  if  satisfied  that  the  rights  and  interests  of 
the  United  States  and  captors,  or  of  other  claimants,  will  not  be  prejudiced 
thereby;  but  a  satisfactory  appraisement  shall  be  first  made,  and  an  oppor- 
tunity given  to  the  district  attorney  and  naval  prize-commissioner  to  be  heard 
as  to  the  appointment  of  appraisers.  Any  money  deposited  in  lieu  of  stipula- 
tion, and  all  money  collected  on  a  stipulation,  not  being  costs,  shall  be  deposited 
with  the  assistant  treasurer,  in  the  same  manner  as  proceeds  of  a  sale. —  (Ibid., 
s.  26,  p.  313.) 

Sec.  4627.  [When  property  may  be  sold.]  Whenever  any  prize-property 
is  condemned,  or  at  any  stage  of  the  proceedings  is  found  by  the  court  to  be 
perisliing,  perishable,  or  liable  to  deteriorate  or  depreciate,  or  whenever  the 
costs  of  keeping  the  same  are  disproportionate  to  its  value,  the  court  shall  order 
a  sale  of  such  property;  and  whenever,  after  the  return-day  on  the  libel,  all  the 
parties  in  interest  who  have  appeared  in  the  cause  agree  thereto,  the  court  may 
make  such  order;  and  no  appeal  shall  operate  to  prevent  the  making  or  execu- 
tion of  such  order. —  (Ibid.,  s.  8,  p.  308.) 

Sec.  4628.  [Mode  of  making  sale.]  Upon  a  sale  of  any  prize-property  by 
order  of  the  court,  the  Secretary  of  the  Navy  shall  employ  an  auctioneer  of 

1141 


Sec.  4631.  Pt.  2.  REVISED  STATUTES.  Prize. 

known  skill  in  the  branch  of  business  to  which  any  sale  pertains,  to  make  the 
sale,  but  the  sale  shall  be  conducted  under  the  supervision  of  the  marshal,  and 
the  collecting  and  depositing  of  the  gross  proceeds  shall  be  by  the  auctioneer  or 
his  agent.  Before  any  sale  the  marshal  shall  cause  full  catalogues  and  schedules 
to  be  prepared  and  circulated,  and  a  copy  of  each  shall  be  returned  by  the 
marshal  to  the  court  in  each  cause.  The  marshal  shall  cause  all  sales  to  be 
advertised  fully  and  conspicuously  in  newspapers  ordered  by  the  court,  and  by 
posters,  and  he  shall,  at  least  five  days  before  the  sale,  serve  notice  thereof 
upon  the  naval  prize-commissioner,  and  the  goods  shall  be  open  to  inspection 
at  least  three  days  before  the  sale. —  (Ibid.) 

Sec.  4629.  [Transfer  of  property  to  another  district  for  sale.]  Whenever  it 
appears  to  the  court,  in  the  case  of  any  prize-property  ordered  to  be  sold,  that 
it  will  be  for  the  interest  of  all  parties  to  have  it  sold  in  another  district,  the 
court  may  direct  the  marshal  to  transfer  the  same  to  the  district  selected  by 
the  court  for  the  sale,  and  to  insure  the  same,  %Wth  proper  orders  as  to  the  time 
and  manner  of  selling  the  same.  It  shall  be  the  duty  of  the  marshal  so  to 
transfer  the  property,  and  keep  and  sell  the  same  in  like  manner  as  if  the  prop- 
erty were  in  his  own  district;  and  he  shall  deposit  the  gross  proceeds  of  the 
sale  with  the  assistant  treasurer  nearest  to  the  place  of  sale,  subject  to  the 
order  of  the  court  in  which  the  adjudication  thereon  is  pending.  The  neces- 
sary expenses  attending  the  insuring,  transferring,  receiving,  keeping,  and 
selling  the  property  shall  be  a  charge  upon  it  and  upon  the  proceeds  thereof; 
and  whenever  any  such  expense  is  paid  in  advance  by  the  marshal,  and  he 
is  not  repaid  from  the  proceeds,  any  amount  not  so  repaid  shall  be  allowed  to 
him,  as  in  case  of  expenses  incurred  in  suits  in  which  the  United  States  is  a 
party.  The  Secretary  of  the  Navy  may,  in  like  manner,  either  by  a  general 
regulation  or  by  special  direction  in  any  cause,  require  a  marshal  to  transfer 
any  prize-property  from  the  district  in  which  the  judicial  proceedings  are 
pending,  to  any  other  district  for  sale;  and  the  same  proceedings  shall  be  had 
as  if  such  transfer  had  been  made  by  order  of  the  com-t. —  (Ibid.,  s.  30,  p.  315.) 

Sec.  4630.  [Share  of  captors.]  The  net  proceeds  of  all  property  condemned 
as  prize,  shall,  w^hen  the  prize  was  of  superior  or  equal  force  to  the  vessel  or 
vessels  making  the  capture,  be  decreed  to  the  captors;  and  when  of  inferior 
force,  one-half  shall  be  decreed  to  the  United  States  and  the  other  half  to  the 
captors,  except  that  in  case  of  privateers  and  letters  of  marque,  the  whole 
shall  be  decreed  to  the  captors,  unless  it  shall  be  otherwise  provided  in  the  com- 
missions issued  to  such  vessels. —  (Ibid.,  s.  10,  p.  309.) 

See  act  of  March  3,  1899,  quoted  under  section  4616,  Revised  Statutes;  and  see  sections  5310 
and  5311,  Revised  Statutes. 

Sec.  4631.  [Distribution  of  proceeds  to  captors.]  All  prize-money  adjudged 
to  the  captors  shall  be  distributed  in  the  following  proportions: 

First.  To  the  commanding  officer  of  a  fleet  or  squadron,  one- twentieth 
part  of  all  prize  money  awarded  to  any  vessel  or  vessels  under  his  immediate 
command. 

Second.  To  the  commanding  officer  of  a  division  of  a  fleet  or  squadron, 
on  duty  under  the  orders  of  the  commander-in-chief  of  such  fleet  or  squadron, 
a  sum  equal  to  one-fiftieth  part  of  any  prize-mone}"  awarded  to  a  vessel  of 

1142 


diatribution  of  salvage,  etc.;  see  also  sec- 
tions 5310  and  5311,  Revised  Statutes. 


Prize.  Pt.  2.  REVISED  STATUTES.  Sec.  4633. 

such  division  for  a  capture  made  while  under  his  command,  such  fiftieth  part 
to  be  deducted  from  the  moiety  due  to  tlie  United  States,  if  there  be  such 
moiety,  otherwise  from  the  amount  awarded  to  the  captors;  but  such  fiftieth 
part  shall  not  be  in  addition  to  any  share  which  may  be  due  to  the  comman- 
der of  the  division,  and  which  he  may  elect  to  receive,  as  commander  of  a 
single  ship  making  or  assisting  in  the  capture. 

Third.  To  the  fieet-captain,  one-hundredth  part  of  all  prize-money 
awarded  to  any  vessel  or  vessels  of  the  fleet  or  squadron  in  which  he  is  serving, 
except  in  a  case  where  the  capture  is  made  by  the  vessel  on  board  of  which  he 
is  serving  at  the  time  of  such  capture;  and  in  such  case  he  shall  share,  in  pro- 
portion to  his  pay,  with  the  other  officers  and  men  on  board  such  vessel. 

Fourth.  To  the  commander  of  a  single  vessel,  one-tenth  part  of  all  the 
prize-money  awarded  to  the  vessel  under  his  command,  if  such  vessel  at  the 
time  of  the  capture  was  under  the  command  of  the  commanding  officer  of  a 
fleet  or  squadron,  or  a  division,  and  tlu'ee-twentieths  if  his  vessel  was  acting 
independently  of  such  superior  officer. 

Fifth.  After  the  foregoing  deductions,  the  residue  shall  be  distributed 
and  proportioned  among  all  others  doing  duty  on  board,  including  the  fleet- 
captain,  and  borne  upon  the  books  of  the  ship,  in  proportion  to  their  respective 
rates  of  pay  in  the  service. —  (Ibid.     8  June,  1874,  c.  256,  v.  18,  p.  63.) 

See  act  of  March  3,  1899,  quoted  under  section 
4616,  Revised  Statutes;  and  see  sections 
4642  and  4652,    Revised   Statutes,    as  to 

Sec.  4632.  [What  vessels  entitled  to  share.]  All  vessels  of  the  Navy  within 
signal-distance  of  the  vessel  or  vessels  making  the  capture,  under  such  circum- 
stances and  in  such  condition  as  to  be  able  to  render  effective  aid,  if  required, 
shall  share  in  the  prize;  and  in  case  of  vessels  not  in  the  Navy,  none  shall  be 
entitled  to  share  except  the  vessel  or  vessels  making  the  capture;  in  which 
term  shall  be  included  vessels  present  at  and  rendering  actual  assistance  in 
the  capture.— (30  June,  1864,  c.  174,  s.  10,  v.  13,  p.  309.) 

See  act  of  March  3,  1899,  quoted  under  section  4642  and  4652,  Revised  Statutes,  as  to  dia- 

4616,  Revised  Statutes;  and  see  sections  tribution  of  salvage,  etc. 

Sec.  4633.  [What  officers  entitled  to  share.]  No  commanding  officer  of  a 
fleet  or  squadron  shall  be  entitled  to  receive  any  share  of  prizes  captured  by 
any  vessel  or  vessels  not  under  his  command,  nor  of  such  prizes  as  may  have 
been  captured  by  any  vessels  intended  to  be  placed  under  his  command,  before 
they  have  acted  under  his  orders.  Nor  shall  the  commanding  officer  of  a 
fleet  or  squadron,  leaving  the  station  where  he  had  command,  have  any  share 
in  the  prizes  taken  by  ships  left  on  such  station  after  he  has  gone  out  of  the 
limits  of  his  command,  nor  after  he  has  transferred  his  command  to  his  suc- 
cessor. No  officer  or  other  person  who  shall  have  been  temporarily  absent 
on  duty  from  a  vessel  on  the  books  of  which  he  continued  to  be  borne,  while  so 
absent,  shall  be  deprived,  in  consequence  of  such  absence,  of  any  prize-money 
to  which  he  would  otherwise  be  entitled.  And  he  shall  continue  to  share  in 
the  captures  of  the  vessels  to  which  he  is  attached,  until  regularly  discharged 
therefrom.— (30  June,  1864,  c.  174,  s.  10,  v.  13,  c.  309.) 

See  act  of  March  3,  1899,  quoted  under  section    ,  4642  and  4652,  Revised  Statutes,  aa  to  dis- 

4616,  Revised  Statutes;  and  see  sections    i  tribution  of  salvage,  etc. 

1143 


Sec.  4640.  PL  2.  REVISED  STATUTES.  Prize. 

Sec.  4634.  [Determination  of  shares.]  Wlienever  a  decree  of  condemnation 
is  rendered,  the  court  shall  consider  the  claims  of  all  vessels  to  participate  in 
the  proceeds,  and  for  that  purpose  shall,  at  as  early  a  stage  of  the  cause  as 
possible,  order  testimony  to  be  taken  tending  to  show  what  part  should  be 
awarded  to  the  captors,  and  what  vessels  are  entitled  to  share;  and  such  testi- 
mony may  be  sworn  to  before  any  judge  or  commissioner  of  the  courts  of  the 
Ignited  States,  consul  or  commercial  agent  of  the  United  States,  or  notary 
public,  or  any  officer  of  the  Navy  highest  in  rank,  reasonably  accessible  to  the 
deponent.  The  court  shall  make  a  decree  of  distribution,  determining  what 
vessels  are  entitled  to  share  in  the  prize,  and  whether  the  prize  was  of  superior, 
equal,  or  inferior  force  to  the  vessel  or  vessels  making  the  capture.  The  decree 
shall  recit«  the  amount  of  the  gross  proceeds  of  the  prize  subject  to  the  order 
of  the  court,  and  the  amount  deducted  therefrom  for  costs  and  expenses,  and 
the  amount  remaining  for  distribution,  and  whether  the  whole  of  such  residue 
is  to  go  to  the  captors,  or  one-half  to  the  captors,  and  one-half  to  the  United 
States.— (Ibid.,  s.  9.) 

See  act  of  March  3,  1899,  quoted  under  section    I  4642  and  4652,  Re\T.sed  Statutes,  as  to  dis- 

4616,   Re\dsed  Statutes;  and  see  sections    !  tribution  of  salvage,  etc. 

Sec.  4636.  [Appeals  and  amendments  in  prize  cases.]  The  Supreme  Court 
may,  if,  in  its  judgment,  the  purposes  of  justice  require  it,  allow  any  amend- 
ment, either  in  form  or  substance,  of  any  appeal  in  prize  cases,  or  allow  a  prize 
appeal  therein,  if  it  appears  that  any  notice  of  appeal  or  of  intention  to  appeal 
was  filed  with  the  clerk  of  the  district  court  within  thirtv  davs  next  after  the 
rendition  of  the  final  decree  therein. —  (3  Mar.,  1873,  c.  230,  s.  2,  v.  17,  p.  556.) 

Sec.  4637.  [Powers  of  district  court  after  appeal.]  Notwithstanding  any 
appeal  to  the  Supreme  Court,  the  district  court  may  make  and  execute  all 
necessary  orders  for  the  custody  and  disposal  of  the  prize-property;  and  in  case 
of  appeal  from  a  decree  of  condemnation,  may  still  proceed  to  make  a  decree 
of  distribution  so  far  as  to  determine  what  share  of  the  prize  shall  go  to  the 
captors,  and  what  vessels  are  entitled  to  participate  therein. —  (30  June,  1864^ 
0.  174,  s.  13,  V.  13,  p.  310.) 

See  act  of  March  3,  1899,  quoted  under  section  4616,  Revised  Statutes. 

Sec.  4638.  [Security  for  costs.]  The  court  may  require  any  party,  at  any 
stage  of  the  cause,  and  on  claiming  an  appeal,  to  give  security  for  costs. — 
(Ibid.,  s.  15,  p.  311.) 

Sec.  4639.  [Costs  and  expenses.]  All  costs  and  all  expenses  incident  to  the 
bringing  in,  custody,  preservation,  insurance,  sale,  or  other  disposal  of  prize- 
property,  when  allowed  by  the  court,  shall  be  a  charge  upon  such  property,  and 
shall  be  paid  from  the  proceeds  thereof,  unless  the  court  shall  decree  restitution 
free  from  such  charge. —  (Ibid.,  s.  14.) 

Sec.  4640.  [Payment  of  expenses  from  prize-fund.]  No  payments  shall  be 
made  for  any  prize-fund,  except  upon  the  order  of  the  court.  All  charges  for 
work  and  labor,  materials  furnished,  or  money  paid,  shall  be  supported  by  affi- 
davit or  vouchers.  The  court  may,  at  any  time,  order  the  payment,  from  the 
deposit  made  with  the  assistant  treasurer  in  the  cause,  of  any  costs  or  charges 
accrued  and  allowed.  "When  the  cause  is  finally  disposed  of,  the  court  shall 
make  its  order  or  orders  on  the  assistant  treasurer  to  pay  the  costs  and  charges 

1144 


Prize. 


PL  2.  REVISED  STATUTES. 


Sec.  4644. 


allowed  and  unpaid;  and  in  case  the  final  decree  shall  be  for  restitution,  or  in 
case  there  shall  be  no  money  subject  to  the  order  of  the  court  in  the  cause,  any 
costs  or  charges  allowed  by  the  court,  and  not  paid  by  the  claimants,  shall  be  a 
charge  upon,  and  be  paid  out  of,  the  fund  for  defraying  the  expenses  of  suits  in 
which  the  United  States  is  a  party  or  interested. —  (Ibid.) 

Sec,  4641.  [Payment  of  prize  money.]  The  net  amount  decreed  for  distribu- 
tion to  the  United  States,  or  to  vessels  of  the  Navy,  shall  be  ordered  by  the  court 
to  be  paid  into  the  Treasury  of  the  United  States,  to  be  distributed  according 
to  the  decree  of  the  court.  The  Treasury  Department  shall  credit  the  Navy 
Department  ^\^th  each  amount  received  to  be  distributed  to  vessels  of  the  Navy; 
and  the  persons  entitled  to  share  therein  shall  be  severally  credited  in  their 
accounts  with  the  Navy  Department  with  the  amounts  to  which  they  are 
respectively  entitled.  In  case  of  vessels  not  of  the  Navy,  and  not  controlled  by 
any  Department  of  the  Government,  the  distribution  shall  be  made  by  the  court 
to  the  several  parties  entitled  thereto,  and  the  amounts  decreed  to  them  shall 
be  divided  between  the  owners  and  the  ship's  company,  according  to  any  \\Titten 
agreement  between  them,  and  in  the  absence  of  such  agreement,  one-half  to  the 
o\\Tiers  and  one-half  to  the  ship's  company,  according  to  their  respective  rates 
of  pay  on  board;  and  the  court  may  appoint  a  commissioner  to  make  such  dis- 
tribution, subject  to  the  control  of  the  com"t,who  shall  make  due  return  of  his 
doings,  with  proof  of  actual  payments  by  him,  and  who  shall  receive  no  other 
compensation,  directly  or  indirectly,  than  such  as  shall  be  allowed  him  hy  the 
court.  In  case  of  vessels  not  of  the  Navy,  but  controlled  by  either  Executive 
Department,  the  whole  amount  decreed  to  the  captors  shaU  be  divided  among 
the  ship's  company. —  (Ibid.,  s.  16.) 

See  act  of  March  3,  1899,  quoted  under  section  4616,  Revised  Statutes. 

Sec.  4642.  [Distribution  of  salvage,  etc.]  All  ransom-money,  salvage, 
bounty,  or  proceeds  of  condemned  property,  accruing  or  awarded  to  any  vessel 
of  the  Navy,  shall  be  distributed  and  paid  to  the  officers  and  men  entitled  thereto 
in  the  same  manner  as  prize-money,  under  the  direction  of  the  Secretary  of  the 
Navy.— (Ibid.,  s.  11,  p.  310.) 


See  act  of  March  ,3,  1899,  noted  under  section 
4616,  Revised  Statutes. 

By  act  of  July  1,  1918  (40  Stat.,  705),  it  was 
pro\'ided  "that  hereafter  the  Secretary  of 
the  Navy  is  authorized  to  cause  vessels 
under  his  control  adapted  to  the  purpose, 
to  afford  salvage  service  to  public  or  private 
vessels  in  distress:  Provided,   That  when 


such  salvage  service  is  rendered  by  a  ves- 
sel specially  equipped  for  the  purpose  or  by 
a  tug,  the  Secretary  of  the  Navy  may  deter- 
mine and  collect  reasonable  compensation 
therefor.  " 
See  act  of  March  9,  1920,  sections  10  and  11 
{41  Stat.,  528),  relating  to  suits  for  salvage. 


Sec.  4644.  [Clerks  of  district  courts ;  accounts.]  The  clerk  of  each  district 
court  shall  render,  to  the  Secretary'  of  the  Treasury  and  the  Secretary  of  the 
Navy,  a  semi-annual  statement  of  all  the  sums  allowed  by  the  court,  and 
ordered  to  be  paid,  within  the  previous  half-year,  to  the  district  attorney  and 
prize-commissioners  for  services,  and  to  marshals  for  fees  and  commissions;  and 
he  shall,  in  all  prize-causes  in  the  district,  for  the  pm-pose  of  the  final  decree  of 
distribution,  ascertain  and  keep  an  account  of  the  amount  deposited  with  the 
assistant  treasurer,  subject  to  the  order  of  the  court,  in  each  prize-cause,  and  the 
amounts  ordered  to  be  paid  therefrom  as  costs  and  charges,  and  the  residue  for 
distribution;  and  shall  send  copies  of  all  fiual  decrees  of  distribution  to  the 


1145 


Sec.  4650.  Ft.  J.  REVISED  STATUTES.  Prize. 

Secretary  of  the  Treasury  and  the  Secretary  of  the  Navy;  and  shall  draw  the 
orders  of  the  court  for  the  payment  of  all  costs  and  allowances,  and  for  the  dis- 
trihution  of  the  residue.  For  these  services  he  shall  be  entitled  to  receive  the 
sum  of  twenty-five  dollars  in  each  prize-cause,  which  shall  be  in  full  for  the  serv- 
ices required  l)y  thi.s  action. —  (Ibid.,  s.  17,  p.  312.) 

Sec.  4645.  [Marshals ;  commissions  allowed.]  The  marshal  shall  be  allowed 
his  actual  and  necessary  expenses  for  the  custody,  care,  preservation,  insurance, 
sale,  or  other  disposal  of  the  prize-property,  and  for  executing  any  order  of  the 
court  respecting  the  same,  and  shall  have  a  commission  of  one-quarter  of  one  per 
centum  on  vessels,  and  of  one-half  of  one  per  centum  on  all  other  prize-property, 
calculated  on  the  gross  proceeds  of  each  sale;  and  if,  after  he  has  had  any 
prize-property  in  his  custody,  and  has  actually  performed  labor  and  incurred 
responsibility  for  the  care  and  preservation  thereof,  the  same  is  taken  by  the 
United  States  for  its  own  use  without  a  sale,  or  if  it  is  delivered  on  stipulation  to 
the  claimants,  he  shall,  in  case  the  same  is  condemned,  be  entitled  to  one-half 
the  above  commissions  on  the  amount  deposited  by  the  United  States  to  the 
order  of  the  courts,  or  collected  upon  the  stipulation.  No  charges  of  the 
marshal  for  expenses  or  disbursements  shall  be  allowed,  except  upon  his  oath 
that  the  same  have  been  actually  and  necessarily  incurred  for  the  purpose 
stated.— (Ibid.,  s.  18.) 

Sec.  4646.  [District  attorney  and  prize-commissioners;  compensation.] 
The  district  attorney  and  prize-commissioners,  except  the  naval  officer,  shall 
be  allowed  a  just  and  suitable  compensation  for  their  respective  services  in  each 
prize-cause,  to  be  adjusted  and  determined  by  the  court,  and  to  be  paid  as  costs 
in  the  cause. —  (Ibid.,  s.  20.) 

See  section  3667,  Revised  Statutes,  and  note  thereto,  as  to  naval  pension  fund. 

Sec.  4647.  [District  attorney  and  prize-commissioners;  accounts.]  Each 
district  attorney  and  prize-commissioner,  except  the  naval  officer,  shall  render 
to  the  Attorney-General  an  annual  account  of  all  sums  he  shall  have  received 
for  all  services  in  prize-causes  within  the  previous  year;  and  the  district  attorney 
shall  be  allowed  to  retain  therefrom  a  sum  not  exceeding  three  thousand  dollars 
a  year,  in  addition  to  the  maximum  compensation  allowed  to  be  retained  by 
him;  under  the  provisions  of  Title  XIII,  "The  Judiciary,"  or  in  addition  to 
any  salary  he  may  receive  in  lieu  of  such  maximum  compensation;  and  each 
such  prize-commissioner  shall  be  allowed  to  retain  a  sum  not  exceeding  three 
thousand  dollars  a  year,  which  shall  be  in  full  for  all  his  official  services  in 
prize-causes;  and  any  excess  over  those  respective  amounts  shall  be  paid  by 
the  officer  receiving  the  same  into  the  Treasury  of  the  United  States,  and  shall 
be  credited  to  the  fund  for  paying  naval  pensions. —  (30  June,  1864,  c.  174,  s. 
21,  V.  13,  p.  312.     22  Juno,  1870,  c.  150,  s.  15,  v.  16,  p.  164.) 

Sec.  4650.  [Auctioneers ;  commissions.]  The  auctioneers  employed  to  make 
sales  of  prize-property  shall  be  entitled  to  receive  commissions  by  a  scale  to  be 
established  by  the  Secretary  of  the  Navy,  not  to  exceed,  in  any  case,  one-half  of 
one  per  centum  on  any  sum  exceeding  ten  thousand  dollars  on  vessels,  nor  one 
per  centum  on  that  sum  on  other  prize-property,  which  shall  be  in  full  for 
expenses,  as  well  as  for  services;  and  in  case  no  such  scale  shall  be  established, 
they  shall  be  entitled  to  receive  such  compensation  as  the  court  shall  deem  just 
under  the  circumstances  of  each  case. —  (Ibid.,  s.  22.) 

1146 


Prize.  Pt.  2.  REVISED  STATUTES.  Sec.  4652. 

Sec.  4651.  [Witnesses'  fees.]  Wlienever  the  court  shall  allow  fees  to  any 
witness  in  a  prize-cause,  or  fees  for  taking  evidence  out  of  the  district  in  which 
the  court  sits,  and  there  is  no  money  subject  to  its  order  in  the  cause,  the  same 
shall  be  paid  by  the  marshal,  and  shall  be  repaid  to  him  from  any  money 
deposited  to  the  order  of  the  court  in  the  cause;  and  any  amount  not  so  repaid 
the  marshal  shall  be  allowed  as  witness-fees  paid  by  him  in  cases  in  which  the 
United  States  is  a  party.— (30  June,  1864,  c.  174,  s.  25,  v.  13,  p.  313.) 

Sec.  4652.  [Recaptures;  salvage.]  When  any  vessel  or  other  property  shall 
have  been  captured  by  any  force  hostile  to  the  United  States,  and  shall  be 
recaptured,  and  it  shall  appear  to  the  court  that  the  same  had  not  been  con- 
demned as  prize  before  its  recapture,  by  any  competent  authority,  the  court 
shall  award  a  meet  and  competent  sum  as  salvage,  according  to  the  circum- 
stances of  each  case.  If  the  captm^ed  property  belonged  to  the  United  States, 
it  shall  be  restored  to  the  United  States,  and  there  shall  be  paid  from  the 
Treasury  of  the  United  States  the  salvage,  costs,  and  expenses  ordered  by  the 
court.  If  the  recaptured  property  belonged  to  persons  residing  within  or 
under  the  protection  of  the  United  States,  the  court  shall  adjudge  the  property 
to  be  restored  to  its  owners,  upon  their  claim,  on  the  payment  of  such  sum  as 
the  court  may  award  as  salvage,  costs,  and  expenses.  If  the  recaptured  prop- 
erty belonged  to  any  person  permanently  resident  within  the  territory  and 
under  the  protection  of  any  foreign  prince,  government,  or  state  in  amity  wdth 
the  United  States,  and  by  the  law  or  usage  of  such  prince,  government,  or 
state,  the  property  of  a  citizen  of  the  United  States  would  be  restored  under 
like  circumstances  of  recapture,  it  shall  be  adjudged  to  be  restored  to  such 
owner,  upon  his  claim,  upon  such  terms  as  by  the  law  or  usage  of  such  prince, 
government,  or  state  would  be  required  of  a  citizen  of  the  United  States  under 
like  circumstances  of  recapture;  or  when  no  such  law  or  usage  shall  be  known, 
it  shall  be  adjudged  to  be  restored  upon  the  payment  of  such  salvage,  costs,  and 
expenses  as  the  court  shall  order.  The  whole  amount  awarded  as  salvage 
shall  be  decreed  to  the  captors,  and  no  part  to  the  United  States,  and  shall  be 
distributed  as  in  the  case  of  proceeds  of  property  condemned  as  prize.  Nothing 
in  this  Title  shall  be  construed  to  contravene  any  treaty  of  the  United  States. — 
(Ibid.,  s.  29,  p.  314.) 

See  section  4642,  Revised  Statutes,  and  note  thereto,  as  to  distribution  of  salvage. 


54641  °— 22 73  1 147 


TITLE   LV. 


LIGHTS    AND    BUOYS. 


Sec.  4679.  [Light-House  Board ;  no  additional  compensation  to  officers.]  No 
additional  salary  shall  ])e  allowed  to  any  civil,  military,  or  naval  officer  on 
account  of  his  being  employed  on  the  Light-House  Board,  or  being  in  any 
manner  attached  to  the  light-house  service. —  (31  Aug.,  1852,  c.  112,  s.  17, 
V.  10,  p.  120.) 

By  act  of  June  17, 1910,  section  4  (36  Stat.,  537), 
a  bureau  of  light-houses  was  established  in 
the  Department  of  Commerce  and  Labor 
(now  the  Department  of  Commerce);  and 
by  section  5  of  the  same  act  it  was  provided 
that  "all  employees  of  or  in  the  Light- 
House  Board  or  the  Light-House  Estab- 
lishment are  hereby  transferred  to  the 
bureau  of  light-houses,  excepting,  how- 
ever. Army  and  Navy  officers." 

"Hereafter  officers  of  the  Army  and  Navy  de- 
tailed for  service  in  connection  with  the 
Light-House  Establishment  shall  be  paid 
their  actual  traveling  expenses  when  trav- 
eling under  orders  on  official  duty  to  and 
from  points  which  can  not  be  conveniently 
reached  by  vessel  or  I'ailroad."  (Act  Feb. 
26,  1907,  see.  6,  34  Stat.,  997;  see  also  sec. 
1566,  R.  S.,  and  notes  thereto,  as  to  mile- 
age and  actual  expenses  of  naval  officers 
traveling  on  duty.) 


By  section  4671,  Revised  Statutes,  it  was  pro- 
\ided  that  "an  officer  of  the  Army  or  Navy 
shall  be  assigned  to  each  district  as  a  light- 
house inspector,  subject  to  the  orders  of 
the  Light-House  Board;"  etc.  Said  sec- 
tion was  expressly  repealed  by  the  act  of 
June  17,  1910,  section  13  (36  Stat.,  539), 
which  said  act,  section  11  (36  Stat.,  538, 
539)  proAdded  that  "the  President  may,  for 
a  period  not  exceeding  three  years  fi"om  the 
taking  effect  of  this  section,  assign  Amiy 
and  Navy  officers  to  act  in  lieu  of  the 
appointment  of  civilian  light-house  in- 
spectors, but  such  Army  and  Navy  officers 
shall  not  receive  any  salary  or  compensation 
in  addition  to  the  salary  or  compensation 
they  are  entitled  to  as  such  Army  or  Navy 
officers." 


1149 


TITLE   LVL 


the  mode  of  executing  the  survey  which 
has  been  submitted  to  the  President  by  a 
board  of  officers  organized  under  the  act 
of  March  three,  eighteen  hundred  and 
forty-three,  cliapter  one  hundred." 


THE    COAST    SURVEY. 

Sec.  4684.  [Employment  of  officers  of  Army  and  Navy.]  The  President 
shall  carry  into  effect  the  plan  of  the  board,  as  agreed  upon  by  a  majority  of 
its  members;  and  shall  cause  to  be  employed  as  many  officers  of  the  Army 
and  Navy  of  the  United  States  as  will  be  compatible  with  the  successful  prose- 
cution of  the  work;  the  officers  of  the  Navy  to  be  employed  on  the  hydro- 
graphical  parts,  and  the  officers  of  the  Army  on  the  topographical  parts  of 
the  work;  and  no  officer  of  the  Army  or  Navy  shall  receive  any  extra  pay 
out  of  any  appropriations  for  surveys. — ^(Ibid.) 

The  "board "'  referred  to  in  this  section  is  that 
provided  for  in  section  4683,  Revised 
Statutes,  as  follows:  "All  appropriations 
made  for  the  work  of  surveying  the  coast 
of  the  United  States  shall  be  expended  in 
accordance  with  the  plan  of  reorganizing 

Sec.  4686.  [Power  to  employ  vessels.]  The  President  is  authorized,  for 
any  of  the  purposes  of  surveying  the  coast  of  the  United  States,  to  cause  to 
be  employed  such  of  the  public  vessels  in  actual  service  as  he  deems  it  expedient 
to  employ,  and  to  give  such  instructions  for  regulating  their  conduct  as  he 
deems  proper,  according  to  the  tenor  of  this  Title. —  (10  Feb.,  1807,  c.  8,  s.  3, 
V.  2,  p.  414.     14  April,  1818,  c.  58,  s.  1,  v.  3,  p.  425.) 

Sec.  4687.  [Officers  of  the  Army  and  Navy;  manner  of  employment.]  Offi- 
cers of  the  Army  and  Navy  shall,  as  far  as  practicable,  be  employed  in  the 
work  of  surveying  the  coast  of  the  United  States,  whenever  and  in  the  manner 
required  by  the  Department  having  charge  thereof. —  (17  June,  1844,  c.  105, 
s.  1,  V.  5,  pp.  681,  691.) 

Sec.  4688.  [Allowance  for  subsistence.]  The  Secretary  of  the  Treasiu-y 
may  make  such  allowances  to  the  officers  and  men  of  the  Army  and  Navy, 
while  employed  on  Coast  Survey  service,  for  subsistence,  in  addition  to  their 
compensation,  as  he  may  deem  necessary,  not  exceeding  the  sum  authorized 
by  the  Treasury  regulation  of  the  eleventh  day  of  May,  eighteen  hundred  and 
forty-four.— (12  June,  1858,  c.  154,  s.  1,  v.  11,  pp.  319,  320.) 


For  restriction   upon  allowance  to  officers  of 
Army  and  Navy  attached  to  the  Coast  and 


Geodetic  Survey,  see  act  August  30,  1890 
(26  Stat,  382.) 


1151 


TITLE   LVII. 
PENSIONS. 

[By  Act  op  October  6, 1917,  as  amended  by  Act  of  June  25, 1918,  Section  17,  it  was  Enacted 
IN  Section  312  thereof  (40  Stat.,  408,  613),  that  "The  Laws  Providing  for  Gratuities 
or  Payments  in  the  Event  of  Death  in  the  Service  and  Existing  Pension  Laws  Shall 
Not  be  Applicable  After  the  Enactment  of  this  Amendment  to  Any  Person  in  the 
Active  Military  or  Naval  Service  on  the  Sixth  Day  of  October,  Nineteen  Hundred 
AND  Seventeen,  or  Who  Thereafter  Entered  the  Active  Military  or  Naval  Service, 
OR  to  Their  Widows,  Children,  or  Their  Dependents,  Except  In  So  Far  As  Rights 
Under  Any  Such  Law  Have  Heretofore  Accrued."] 


Sec. 

4750.  Navy    pension  fund,    Secretary    of    the 
Navy  trustee. 

4752.  Navy  pension  fund,  prize  money  accru- 

ing to  United  States. 

4753.  Navy  pension  fund,  how  invested. 

4754.  Navy  pension  fund,  rate  of  interest 

4755.  Navy  pensions  payable  from  fund. 

4756.  DisalDled   enlisted   men,    twenty    years' 

service. 


Sec. 

4757. 

4787. 

4788. 

4789. 

4790. 

4791. 


Disabled  enlisted  men,  ten  years'  service. 

Artificial  limbs. 

Commutation  for  artificial  limbs. 

Commutation  paid  by  Commissioner  of 
Pensions. 

Commutation  to  those  who  can  not  use 
artificial  limb. 

Transportation  to  persons  receiving  arti- 
ficial limbs. 


Sec.  4750.  [Navy  pension-fund,  Secretary  of  the  Navy  trustee.]  The  Secre- 
tary of  the  Navy  shall  be  trustee  of  the  Navy  pension-fund. —  (10  July,  1832, 
c.  194,  s.  1,  V.  4,  p.  572.) 


See  sections  3667,  3689,  4647,  and  4752-4757, 
Rev-ised  Statutes. 

Maintenance  of  Naval  Home. — The  annual 
naval  appropriation  act,  in  appropriating 
for  the  maintenance  of  the  Naval  Home, 
Philadelphia,  Pa.,  provides  that  the  sum 
80  appropriated  "shall  be  paid  out  of  the 
income  of  the  naval  pension  fund"  (e.  g., 
act  June  4,  1920,  41  Stat.,  818). 

Payment  of  naval  pensions. — The  annual  act 
making  appropriation  for  Army  and  Navy- 
pensions  provides  that  the  sum  so  appro- 
priated for  Navy  pensions  "shall  be  paid 
from  the  income  of  the  Navy  pension  fund, 
so  far  as  the  same  shall  be  sufficient  for  that 
purpose"  (e.g., act.  Feb.  16,  1921,  41  Stat., 
1104).  See  also  section  4755,  Revised 
Statutes. 

History  of  naval  pension  fund. — See  "Manual 
for  the  Medical  Department  of  the  United 


States  Navy,"  1917,  paragraphs  3761- 
3784. 

"All  moneys  derived  from  the  sale  of  material 
at  the  Naval  Home,  which  was  originally 
purchased  from  moneys  appropriated  from 
the  income  from  the  naval  pension  fund, 
and  all  moneys  derived  from  the  rental  oi 
Naval  Home  property,  shall  hereafter  be 
turned  into  the  naval  pension  fund." 
(Act  Mar.  4,  1917,  39  Stat.,  1175.) 

Pensions  of  deceased  inmates  of  the  Naval 
Home  are  to  escheat  to  the  naval  pension 
fund  in  certain  cases.  (See  act  June  30, 
1914,  38  Stat.,  398,  quoted  under  sec.  4813, 
R.  S.) 

Money  belonging  to  deceased  inmates  of  the 
Naval  Home  is  to  be  credited  to  the  naval 
pension  fund  in  certain  cases.  (See  act 
June  30,  1914,  38  Stat.,  398.) 


Sec.  4762.  [Navy  pension-fund,  prize  money  accruing  to  United  States.] 
All  money  accruing  or  which  has  ah'eady  accrued  to  the  United  States  from 
sale  of  prizes  shall  be  and  remain  forever  a  fund  for  the  payment  of  pensions  to 
the  officers,  seamen,  and  marines  who  may  be  entitled  to  receive  the  same;  and  if 
such  fund  be  insufficient  for  the  purpose,  the  public  faith  is  pledged  to  make 
up  the  deficiency;  but  if  it  should  be  more  than  sufficient,  the  surplus  shall  be 


1153 


Sec.  4756.  PL  2.  REVISED  STATUTES.  Pensions. 

apj)lied  to  the  making  of  further  provision  for  the  comfort  of  the  disabled 
officers,  seamen,  and  marines. —  (17  July,  1862,  c.  204,  s.  11,  v.  12,  p.  G07.) 

See  note  to  section  4750,  Revised  Statutes;  and  see  sections  4613^652,  Re\dsed  Statute?,  as  to 
capture  and  sale  of  prizes. 

Sec.  4753.  [Navy  pension-fund,  how  invested.]  The  Secretary  of  the  Navy, 
as  trustee  of  the  naval  j^onsion-fund,  is  directed  to  cause  to  be  invested  in  the 
registered  securities  of  the  United  States,  on  the  first  day  of  January  and  the 
fij-st  day  of  July  of  each  year,  so  much  of  such  fund  then  in  the  Treasury  of  the 
Unitod  States  as  may  not  be  required  for  the  payment  of  naval  pensions  for 
the  then  current  fiscal  year;  and  upon  the  requisition  of  the  Secretary,  so  much 
gf  the  fund  as  may  not  be  required  for  such  payment  of  pensions  accruing 
during  the  current  fiscal  year  shall  be  held  in  the  Treasury  on  the  days  above 
named  in  each  year,  subject  to  his  order,  for  the  purpose  of  such  immediate 
investment;  and  the  interest  payable  in  coin  upon  the  securities  in  which  the 
fund  may  be  invested,  shall  be  so  paid,  when  due,  to  the  order  of  the  Secretary 
of  the  Navy,  and  he  is  authorized  and  directed  to  exchange  the  amount  of 
such  interest  when  paid  in  coin,  for  so  much  of  the  legal  currency  of  the  United 
States  as  may  be  obtained  therefor  at  the  current  rates  of  premium  on  gold, 
and  to  deposit  the  interest  so  converted  in  the  Treasury  to  the  credit  of  the 
naval  pension-fund;  but  nothing  herein  contained  shall  be  construed  to  inter- 
fere Avith  the  payment  of  naval  pensions  under  the  supervision  of  the  Secretary 
of  the  Interior,  as  regulated  by  law. —  (1  July,  1864,  Res.  No.  62,  v.  13,  p.  414.) 

See  note  to  section  4750,  Revised  Statutes. 

Sec.  4754.  [Navy  pension-fund,  rate  of  interest.]  The  interest  on  the  naval 
pension-fund  shall  hereafter  be  at  the  rate  of  three  per  centum  per  annum  in 
la\vful  money.— (23  July,  1868,  c.  229,  s.  2,  v.  15,  p.  170.) 

See  note  to  section  4750,  Revised  Statutes. 

Sec.  4755.  [Navy  pensions  payable  from  fund.]  The  Navy  pensions  shall  be 
paid  from  the  Navy  pension-fund,  but  no  payments  shall  be  made  therefrom 
except  upon  appropriations  authorized  by  Congress. —  (23  July,  1868,  c.  229, 
s.  2,  V.  15,  p.  170.  11  July  ,1870,  c.  238,  v.  16,  p.  222.  20  June,  1874,  c.  335, 
V.  18,  p.  115.  23  Mar.,  1876,  c.  30,  v.  19,  p.  8.  19  Jan.,  1877,  c.  27,  v.  19, 
p.  224.) 

See  note  to  section  4750,  Revised  Statutes. 

Sec.  4756.  [Disabled  enlisted  men,  twenty  years'  service.]  There  shall  be 
paid  out  of  the  naval  pension-fund  to  every  person  who,  from  age  or  infirmity, 
is  disabled  from  sea-service,  but  who  has  served  as  an  enlisted  person  or  as  an 
appointed  petty  officer,  or  both,  in  the  Navy  or  Marine  Corps  for  the  period  of 
twenty  years,  and  not  been  discharged  for  misconduct,  in  lieu  of  being  pro- 
vided wath  a  home  in  the  Naval  Asylum,  Philadelphia,  if  he  so  elects,  a  sum 
equal  to  one-half  the  pay  of  his  rating  at  the  time  he  was  discharged,  to  be 
paid  to  him  quarterly,  under  the  direction  of  the  Commissioner  of  Pensions; 
and  applications  for  such  pension  shall  be  made  to  the  Secretary  of  the  Navy, 
who,  upon  being  satisfied  that  the  applicant  comes  within  the  provisions  of 
this  section,  shall  certify  the  same  to  the  Commissioner  of  Pensions,  and  such 
certificate  shall  be  his  warrant  for  making  payment  as  herein  authorized. — 
(2.  Mar.,  1867,  c.  174,  s.  6,  v.  14,  p.  516.) 

1154 


Pensions. 


PL  2.  REVISED  STATUTES. 


Sec.  4767. 


This  section  was  expressly  amended  to  read  as 
above  by  act  of  December  23,   1886  (24 
Stat.,  353),  the  amendment  consisting  of 
inserting  therein   the   words,    "or   as  an 
appointed  petty  officer,  or  both,"  after  the 
words,  "as  an  enlisted  person." 
"The  laws  providing  for  gratuities  or  payments 
in  the  event  of  death  in  the  service  and 
existing  pension  laws  shall  not  be  applica- 
ble after  the  enactment  of  this  amendment 
to  any  person  in  the  active  military  or 
naval  service  on  the  sixth  day  of  October, 
nineteen  hundred  and  seventeen,  or  who 
thereafter  entered  the  active  military  or 
naval  ser\dce,  or  to  their  widows,  cliildren, 
or  their  dependents,  except  in  so  far  as 
rights  under  any  such  law  have  heretofore 
accrued."     (Act  Oct.  6,  1917,  sec.  312,  40 
Stat.,  408,  as  amended  by  act  of  June  25, 
1918,  sec.  17,  40  Stat.,  613.) 
"  The  pensions  of  beneficiaries  of  the  Naval 
Home  shall  be  disposed  of  in  the  same  man- 
ner as  prescribed  for  inmates  of  the  Soldiers' 
Home,     *    *    *    vmder  such  regulations 
as  the  Secretary  of  the  Navy  may  pre- 
scribe."    (Act   June    30,    1914,    38    Stat., 
398.)     See  note  to  section  4813,   Revised 
Statutes. 
Jurisdiction    of    the    Secretary    of    the 
Navy.— The  Secretary  of  the  Navy  has  ex- 
clusive   jurisdiction    to    determine    who    are 
entitled  to  the  money  benefits  granted  by  sec- 
tion 4756  of  the  Revised  Statutes,  and  after  that 
official  has  issued  a  certificate  allowing  same, 
the  Commissioner  of  Pensions,  in  making  pay- 
ment of  said  money  benefits,  acts  only  in  a 
ministerial    capacity.     (31    Op.   Atty.    Gen., 
127;  affirmed.  Op.  Atty.  Gen.,  Nov.  7,  1917, 
file    26510-1022:  11;  see    C.    M.    O.    37-1918, 
p.  20.) 

See  note  to  section  471,  Revised  Statutes,  as 
to  jurisdiction  of  the  Secretary  of  the  Navy  and 
the  (Commissioner  of  Pensions. 

Effect  of  War  Risk  Insurance  Act. — 
Section  4756,  Re\'ised  Statutes,  is,  under  the 
established  practice  of  the  Navy  Department, 
to  be  regarded  as  one  of  the  ' '  existing  pension 
laws  "  referred  to  in  section  312  of  the  War  Risk 
Insurance  Act  of  October  6,  1917  (quoted 
above).  Payments  under  section  4756  can  not, 
therefore,  be  any  longer  made  except  so  far  as 
rights  under  the  said  section  had  accrued  on 
October  6,  1917.     (31  Op.  Atty.  Gen.,  296.) 

A  sergeant  in  the  Marine  Corps  who,  prior  to 
the  enactment  of  the  War  Risk  Insurance  Act 
of  October  6,  1917  (above  quoted),  had  served 
in  the  corps  for  more  than  21  years,  and  who  had 
become    "disabled    from   sea   ser\ice"    by    a 


wound  received  in  action  in  June  1916,  but 
who,  though  entitled  to  honorable  discharge 
from  the  service  on  October  6,  1917,  did  not 
actually  receive  his  discharge  until  November 
5,  1917,  is  entitled  both  to  the  benefits  of  sec- 
tion 4756,  Revised  Statutes,  and  also  to  what- 
ever allowance  he  may  be  otherwise  entitled 
to  under  the  provisions  of  the  War  Risk  In- 
surance Act.     (31  Op.  Atty.  Gen.,  296.) 

In  this  case  the  rights  of  the  sergeant  under 
section  4756  had  "accrued  "  on  October  6,  1917, 
and  the  fact  that  he  did  not  actually  receive  his 
discharge  until  November  5, 1917,  isimmaterial. 
(31  Op.^Atty.  Gen.,  296.) 

Allowance  in  addition  to  pension. — 
Allowances  under  sections  4756  and  4757, 
Re\'ised  Statutes,  do  not  fall  -nathin  the  pro- 
hibition of  section  4715,  Re\'ised  Statutes 
(prohibiting  the  allowance  of  more  than  one 
pension  at  the  same  time),  and  may  therefore 
be  paid  in  addition  to  a  pension  under  the 
general  pension  laws.  (31  Op.  Atty.  Gen., 
268.) 

Allowance  in  addition  to  War  Risk 
compensation. — Assuming  that  the  pro- 
\T.sions  of  the  War  Risk  Insurance  Act,  provid- 
ing compensation  for  injmies,  are  to  be  regarded 
as  constituting  a  general  pension  law,  never- 
theless the  prohibition  of  section  4715,  Revised 
Statutes,  against  the  allowance  of  more  than 
one  pension  at  the  same  time  to  the  same  per- 
son does  not  affect  the  case  of  allowances  under 
section  4756,  Revised  Statutes.  (31  Op.  Atty. 
Gen.,  296,  citing  31  Op.  Atty.  Gen.,  268.) 

See  note  above,  under  "Effect  of  War  Risk 
Insurance  Act." 

Allow^ance  to  inmates  of  Naval  Home. — 
The  money  benefits  pro^dded  for  in  section 
4756  of  the  Revised  Statutes  are  "pensions" 
within  the  purview  of  section  4813  of  the  Re- 
■\dsed  Statutes  and  the  pertinent  provision  of  the 
act  of  June  30,  1914  (quoted  above),  and  such 
money  benefits  inure  to  the  grantees  concui'- 
rently  with  maintenance  in  the  Naval  Home. 
(31  Op.  Atty.  Gen.,  268.  See  sees.  4757  and 
4813,  R.  S.,  and  notes  thereto.) 

Allowance  to  inmates  of  St.  Elizabeths 
Hospital. — Allowances  under  sections  4756 
and  4757,  Revised  Statutes,  which  accrue  to 
inmates  of  St.  Elizabeths  Hospital,  should  be 
paid  to  the  superintendent  of  the  hospital, 
notwithstanding  such  inmates  are  represented 
by  a  legal  guardian  or  committee.  (31  Op. 
Atty.  Gen.,  354.)  See  sections  1551,  4838,  and 
4839,  Revised  Statutes. 

For  other  cases,  see  note  to  section  4757, 
Revised  Statutes. 


Sec.  4757.  [Disabled  enlisted  men,  ten  years'  service.]  Every  disabled 
person  who  has  served  in  the  Navy  or  Marine  Corps  as  an  enhsted  man  or  as 
an  appointed  petty  officer,  or  both,  for  a  period  not  less  than  ten  years,  and  not 
been  discharged  for  misconduct,  may  apply  to  the  Secretary  of  the  Navy  for 
aid  from  the  surplus  income  of  the  naval  pension-fund;  and  the  Secretary  of 
the  Navy  is  authorized  to  convene  a  board  of  not  less  than  three  naval  officers, 
one  of  vyhom  shall  be  a  surgeon,  to  examine  into  the  condition  of  the  applicant, 
and  to  recommend  a  suitable  amount  for  his  relief,  and  for  a  specified  time, 
and  upon  the  approval  of  such  recommendation  by  the  Secretary  of  the  Navy, 


1155 


Sec.  4788. 


Pt.  2.  REVISED  STATUTES. 


Pensions. 


and  certificate  thereof  to  the  Commissioner  of  Pensions,  the  amount  shall  be 
paid  in  the  same  manner  as  is  provided  in  the  preceding  section  for  the  pay- 
ment to  persons  disabled  by  long  service  in  the  Navy;  but  no  allowance  so 
made  shall  exceed  the  rate  of  a  pension  for  full  disability  corresponding  to  the 
grade  of  the  applicant,  nor,  if  in  addition  to  a  pension,  exceed  one-fourth  the 
rate  of  such  pension. —  (2  Mar.,  1867,  c.  174,  s.  6,  v.  14,  p.  516.) 

This  section  was  expressly  amended  to  read  as 

above  by  act  of  December  23,   1886  (24 

Stat.,  353),  the  amendment  consisting  of 

inserting  the  words,  "or  as  an  appointed 

petty  officer,  or  both,"  after  the  words, 

"as  an  enlisted  man." 
See  note  to  section  4756,  Revised  Statutes. 

Allo-wance  to  inmates  of  Naval  Home. — 
Allowances  under  section  4757,  Revised  Stat- 
utes, are  "pensions""  within  the  meaning  of 


section  4813  of  the  Revised  Statutes  and  the 
act  of  June  30,  1914  (33  Stat.,  398),  and  should 
therefore  be  disposed  of,  in  cases  where  the 
beneficiaries  are  inmates  of  the  Naval  Home,  in 
the  manner  prescribed  by  that  act,  that  is, 
paid  to  the  governor  of  the  Naval  Home  for  the 
use  of  the  grantees.  (31  Op.  Atty.  Gen.,  268.) 
See  note  to  section  4756,  Re\d8ed  Statutes; 
and  see  section  4813,  Revised  Statutes,  and  note 
thereto. 


Sec.  4787.  [Artificial  limbs.]  Every  officer,  soldier,  seaman,  and  marine, 
who  was  disabled,  during  the  war  for  the  suppression  of  the  rebeUion,  in  the 
military  or  naval  service,  and  in  the  line  of  duty,  or  in  consequence  of  wounds 
received  or  disease  contracted  therein,  and  who  was  furnished  by  the  War 
Department,  since  the  seventeenth  day  of  June,  eighteen  hundred  and  seventy, 
with  an  artificial  limb  or  apparatus  for  resection,  or  who  was  entitled  to  receive 
such  limb  or  apparatus  since  said  date,  shall  be  entitled  to  receive  a  new  limb 
or  apparatus  at  the  expiration  of  every  five  years  thereafter,  imder  such  regu- 
lations as  have  been  or  may  be  prescribed  by  the  Surgeon-General  of  the  Army. 
[The  provisions  of  this  section  shall  apply  to  all  officers,  non-commissioned 
officers,  enlisted  and  liired  men  of  the  land  and  naval  forces  of  the  United  States, 
who,  in  the  line  of  their  duty  as  such,  shall  have  lost  limbs  or  sustained  bodily 
injuries  depriving  them  of  the  use  of  any  of  their  limbs,  to  be  determined  by  the 
Surgeon-General  of  the  Army;  and  the  term  of  five  years  herein  specified  shall 
be  held  to  commence  in  each  case  with  the  filing  of  the  application  for  the 
benefits  of  this  section.] — (27  July,  1868,  c.  264,  s.  14,  v.  15,  p.  237.  17  June, 
1870,  c.  132,  s.  1,  V.  16,  p.  153.  30  June,  1870,  c.  179,  v.  16,  p.  174.  23  Mar., 
1876,  c.  30,  V.  19,  p.  8.     27  Feb.,  1877,  c.  69,  v.  19,  p.  252.) 


This  section  is  reproduced  above  as  it  appears 
in  the  second  edition  of  the  Revised 
Statutes.  The  portion  thereof  in  brackets 
was  added  to  the  original  section  by  act  of 
Februarv  27,  1877  (19  Stat.,  252). 

By  act  of  August  15,  1876  (19  Stat.,  203-204), 
provision  was  made  for  furnishing  artificial 
limbs  or  appliances  or  commutation  there- 
for to  "every  officer,  soldier,  seaman  and 
marine,  who,  in  the  line  of  duty,  in  the 
military  or  naval  service  of  the  United 
States,  shall  have  lost  a  limb,  or  sustained 
bodily  injuries,  de]iri\dng  him  of  the  use 
of  any  of  his  limbs."     (See  act  cited.) 

By  act  of  March  3,  1891  (26  Stat.,  1103),  it  was 
provided  "That  section  forty-seven  hun- 
dred and  eighty-seven  of  the  Revised 
Statutes  of  the  United  States  be  amended 
by  striking  out  the  word  'five'  where  it 
occTirs  therein,  and  inserting  in  lieu  thereof 


the  word  ' '  three '  so  that  when  amended 
said  section  ^vill  read  as  follows:  Every 
officer,  soldier,  seaman,  and  marine  who 
was  disabled  during  the  war  for  the  sup- 
pression of  the  rebellion,  in  the  military 
or  naval  service,  and  in  the  line  of  duty,  or 
in  consequence  of  wounds  received  or 
disease  contracted  therein,  and  who  was 
furnished  by  the  War  Department  since 
the  seventeenth  day  of  June,  eighteen 
hundred  and  seventy,  with  an  artificial 
limb  or  apparatus  for  resection,  who  was 
entitled  to  receive  such  limb  or  apparatus 
since  said  date,  shall  be  entitled  to  receive 
a  new  limb  or  apparatus  at  the  expiration 
of  every  three  years  thereafter,  under  such 
regulations  as  have  been  or  may  be  pre- 
scribed by  the  Surgeon-General  of  the 
Army. 
See  note  to  section  1176,  Revised  Statutes. 


Sec.  4788.  [Commutation  for  artificial  limbs.]     Every  person  entitled  to  the 
benefits  of  the  preceding  section  may,  if  he  so  elects,  receive,  instead  of  such 


1156 


Pensions.  PL  2.  REVISED  STATUTES.  Sec.  4791. 

limb  or  apparatus,  the  money  value  thereof,  at  the  following  rates,  namely: 
For  artificial  legs,  seventy-five  dollars;  for  arms,  fifty  dollars;  for  feet,  fifty 
dollars;  for  apparatus  for  resection,  fifty  dollars. — (17  June,  1870,  c.  132,  s.  1, 
V.  16,  p.  153.     15  Aug.,  1876,  c.  300,  v.  19,  p.  203.) 

See  act  of  August  15,  1876  (19  Stat.,  203-204),  and  note  to  section  1176,  Revised  Statutes. 

Sec.  4789.  [Commutation  paid  by  Commissioner  of  Pensions.]  The  Sur- 
geon-General shall  certify  to  the  Commissioner  of  Pensions  a  list  of  all  soldiers 
who  elect  to  receive  money  commutation  instead  of  limbs  or  apparatus,  with  the 
amount  due  to  each,  and  the  Commissioner  of  Pensions  shall  cause  the  same  to 
be  paid  to  such  soldiers  in  the  same  manner  as  pensions  are  paid. — (17  June, 
1870,  c.  132,  s.  2,  V.  16,  p.  153.) 

See  act  of  August  15,  1876  (19  Stat.,  203-204),  and  note  to  section  1176,  Revised  Statutes;  see 
also  act  of  March  3,  1891  (26  Stat.,  979). 

Sec.  4790.  [Commutation  to  those  who  can  not  use  artificial  limb.]  Every 
person  in  the  military  or  naval  service  who  lost  a  limb  during  the  war  of  the 
rebellion,  [or  is  entitled  to  the  benefits  of  section  forty-seven  hundred  and  eighty- 
seven,]  but  from  the  nature  of  liis  injury  is  not  able  to  use  an  artificial  limbj  shall 
be  entitled  to  the  benefits  of  section  forty-seven  hundred  and  eighty-eight,  and 
shall  receive  money  commutation  as  therein  provided. — (Ibid.,  s.  3.  27  Feh., 
1877,  c.  69,  V.  19,  p.  2.52.) 

This  section  was  amended  to  read  as  above  by  act  of  February  27,  1877  (19  Stat.,  252),  which 
inserted  therein  the  words  inclosed  in  brackets. 

Sec.  4791.  [Transportation  to  persons  receiving  artificial  limbs.]  The 
Secretary  of  War  is  authorized  and  directed  to  furnish  to  the  persons  embraced 
by  the  provisions  of  section  forty-seven  hundred  and  eighty-seven,  transporta- 
tion to  and  from  their  homes  and  the  place  where  they  may  be  required  to  go  to 
obtain  artificial  limbs  provided  for  them  under  authority  of  law.  [The  trans- 
portation allowed  for  having  artificial  limbs  fitted  shall  be  fm^nished  by  the 
Quartermaster-General  of  the  Army,  the  cost  of  which  shall  be  refunded  from 
the  appropriations  for  invalid  pensions.] — (28  July,  1866,  c.  305,  v.  14,  p.  342. 
23  Mar.,  1876,  c.  30,  v.  19,  p.  8.  15  Aug.,  1876,  c.  300,  s.  2,  v.  19,  p.  204.  27 
Fel).,  1877,  c.  69,  v.  19,  p.  252.) 

This  section  was  amended  to  read  as  above  by  act  of  February  27,  1877  (19  Stat.,  252),  wliich 
added  thereto  the  words  inclosed  in  brackets. 


1157 


TITLE   LIX. 


HOSPITALS.  ASYLUMS,  AND  CEMETERIES. 


Sec. 

4807.  Superintendence  of  Navy  hospitals. 

4808.  Na\-y  hospital  fund. 

4809.  Appropriation  of  fines. 

4810.  Purchase  and  erection  of  Navy  hospitals 

and  naval  home. 

4811.  Naval  Home,  eovemment  of. 

4812.  Allowance  of  rations  to  Navy  hospitals. 

4813.  Allowance  from  pensions  to  Na\y  hospi- 

tals. 


Sec. 
4838 
4839 


Saint  Elizabeth  Hospital. 
Superintendent;  money  and  pensions  of 
inmates. 
4843.  Admission  of  insane  persons  of  Navy, 

Marine  Corps,  etc. 
4878.  Burial  in  national  cemeteries. 


Sec.  4807.  [Superintsndence  of  Navy  hospitals.]  The  Secretary  of  the 
Navy  shall  have  the  general  charge  and  superintendence  of  Navy  hospitals. — 
(26  Feb.,  1811,  c.  26,  s.  1,  v.  2,  p.  650.     10  July,  1832,  c.  194,  s.  5,  v.  4,  p.  573.) 

See  note  to  section  4810,  Revised  Statutes. 

Sec.  4808.  [Navy  hospital  fund.]  The  Secretary  of  the  Navy  shall  deduct 
from  the  pay  due  each  officer,  seaman  and  marine,  in  the  Navy,  at  the  rate  of 
twenty  cents  per  month  for  each  person,  to  be  applied  to  the  fund  for  Navy 
hospitals.— (2  Mar.,  1799,  c.  36,  s.  2,  v.  1,  p.  729.  26  Feb.,  1811,  c.  26,  s.  1, 
Y.  2,  p.  650.) 


See  sections  1614  and  1586,  Revised  Statutes. 

For  history  of  naval  hospital  fund,  and  infor- 
mation relating  thereto,  see  "Manual  for 
the  Medical  Department  of  the  United 
States  Na\-v%"  1917,  paragraphs  3631-3671. 


Other  sources  of  income  to  naval  hospital  fund : 

See  sections  4809,  4812,  and  4813,  Re\ised 

Statutes,  and  note  thereto. 
Restrictions  upon  use  of  naval  hospital  fund  for 

erection   of   hospitals:    See    section   4810, 

Re\ised  Statutes. 


Sec.  4809.  [Appropriation  of  fines.]  All  fines  imposed  on  navy  officers,  sea- 
men, and  marines  shall  be  paid  to  the  Secretary  of  the  Navy,  for  the  main- 
tenance of  Navy  hospitals.— (26  Feb.,  1811.,  c.  26,  s.  2,  v.  2,  p.  650.  10  July, 
1832,  c.  194,  s.  5,  v.  4,  p.  573.) 

By  act  of  June  7,  1900  (31  Stat.,  697),  it  was  discharged  naval  prisoners  from  fines  and 

pro^'ided  that  "all  forfeitures  on  account  forfeitures  imposed  by  naval  courts-martial, 

of  desertion  shall  be  passed  to  the  credit  of  thereby  modifying  section  4809,  Revised 

the  naval  hospital  fund."  Statutes,  under  which  such  fines  and  for- 

By  act  of  March  3,  1909  (35  Stat.,  756),  provi-  feitures  had  pre\iously  gone  in  their  en- 

sion  was  made  for  pajonent  of  expenses  of  tirety  to  the  naval  hospital  fund. 

Sec.  4810.  [Purchase  and  erection  of  Navy  hospitals  and  naval  home.]  The 
Secretary'  of  the  Navy  shall  procure  at  suitable  places  proper  sites  for  Navy 
hospitals,  and  if  the  necessary  buildings  are  not  procured  vn.th  the  site,  shall 
cause  such  to  be  erected,  having  due  regard  to  economy,  and  giving  preference 
to  such  plans  as  with  most  convenience  and  least  cost  will  admit  of  subsequent 
additions,  when  the  funds  permit  and  circumstances  requho;  and  shall  pro- 
vide, at  one  of  the  establishments,  a  permanent  asylum  for  disabled  and 
decrepit  Navy  officers,  seamen,  and  marines :  Provided,  That  hereafter  no  sites 
shall  be  procured  or  hospital  buildings  erected  or  extensions  to  existing  hospitals 
made  unless  hereafter  authorized  by  Congress:  Provided,  That  the  sum  of 

1159 


Sec.  4813. 


Pt.  2.  REVISED  STATUTES 


Hospitals. 


$70,000  is  appropriated,  to  bo  paid  out  of  any  money  in  the  Treasury  not 
othondse  appropriated,  for  the  building  of  a  new  power  plant  at  the  Naval 
Hospital,  Chelsea,  Massachusetts,  said  sum  of  money  to  be  paid  into  the  Treasury 
from  the  proceeds  of  sale  of  land  authorized  b}^  the  naval  Act  of  Juno  twenty- 
ninth,  nineteen  hundred  and  six. 


This  section  was  expressly  amended  and  reen- 
acted  to  read  as  above  by  act  of  March  4, 
1913  (37  Stat.,  902). 

As  to  Naval  Home  (formerly  known  as  Naval 
Asylum)  at  Philadelphia,  see  sections 
4750,  4756,  4757,  4811-4813,  Re^^sed  Stat- 
utes, and  notes  thereto. 

As  to  maintenance  of  the  Naval  Home  from 
the  income  of  the  naval  pension  fund,  and 
the  crediting  to  that  fund  of  proceeds  of 
certain  sales  and  rentals  of  Naval  Home 
property,  and  the  pensions  and  money 
effects  of  deceased  seamen  in  certain  cases, 
see  notes  to  section  4750,  Revised  Statutes. 

By  act  of  June  30,  1882  (22  Stat.,  121),  proAi- 
sion  was  made  for  the  erection  of  an  Army 
and  Navv  hospital  at  Hot  Spiings,  Ark., 
and  by  the  act  of  March  3,  1909  (35  Stat., 
748),  it  was  pro\'ided  that  "all  persons" 
admitted  to  treatment  in  said  hospital 
shall,  while  patients  therein,  "be  subject 
to  the  rules  and  articles  for  the  government 
of  the  armies  of  the  United  States." 

By  act  of  June  12,  1906  (34  Stat.,  255),  it  was 
pro\'ided  that  "all  persons"  admitted  to 
treatment  in  the  general  hospital  at  Fort 
Bayard,  New  Mexico,  shall,  while  patients 
therein,  "be  subject  to  the  rules  and  arti- 
cles for  the  government  of  the  armies  of 
the  United   States;"   and  by  the  act  of 


March  2,  1907  (34  Stat..  1172),  it  was  pro- 
\dded  that  the  hospital  at  Fort  Bayard, 
New  Mexico,  for  the  treatment  of  tubercu- 
losis, "shall  be  opened  to  the  treatment  of 
the  officers  and  men  of  the  Navy  and  Ma- 
rine Corps."  (See  notes  to  sees.  1342, 1621, 
and  1624,  R.  S.,  as  to  persons  subject  to 
military  law.) 

By  act  of  March  3,  1919,  section  2  (40  Stat., 
1302),  there  were  permanently  transfen-ed 
to  the  Treasury  Department  for  the  use  of 
the  Public  Health  Ser\ice,  "such hospitals, 
with  other  necessary  buildings,  hereafter 
vacated  by  the  War  Department,  as  may  be 
required  and  found  suitable  for  the  needs 
of  the  Public  Health  Service  for  hospital  or 
sanatoria  purposes;"  and  by  the  same  act, 
section  3  (40  Stat.,  1303),  it  was  pro^'ided 
that  "the  President  is  authorized  to  direct 
the  transfer  to  the  Ti'easuiy  Department  of 
the  United  States  of  such  lands  or  parts  of 
lands,  buildings,  fixtures,  appliances,  fur- 
nishings, or  furniture  under  the  control  of 
any  other  department  of  the  Government 
not  required  for  the  purposes  of  such  de- 
partment and  suitable  for  the  uses  of  the 
Public  Health  SerA-ice." 

Saint  Elizabeths  Hospital,  for  treatment  of  the 
insane:  See  sections  1551  and  4838,  Re- 
vised Statutes. 


Sec.  4811.  [Naval  Home,  government  of.]  The  asylum  for  disabled  and 
decrepit  Navy  officers,  seamen,  and  marines  shall  be  governed  in  accordance 
with  the  rules  and  regulations  prescribed  b}"  the  Secretary  of  the  Navy. —  (26 
Feb.,  1811,  c.  26,  s.  4,  v.  2,  p.  650.) 

See  section  4810,  Revised  Statutes,  and  note  thereto 

Sec.  4812.  [Allowance  of  rations  to  Navy  hospitals.]  For  every  Navy 
officer,  seaman,  or  marine  admitted  into  a  Navy  hospital,  the  institution  shall 
be  allowed  one  ration  per  day  during  liis  continuance  therein,  to  be  deducted 
from  the  account  of  the  United  States  with  such  officer,  seaman,  or  marine. — 
(Ibid.,  s.  5.) 


As  to  rations  allowed  in  Navy  and  Marine  Coips 
see  sections  1577-1585  and  1615,  Revised 
Statutes,  and  notes  thereto. 


As  to  medicines  and  medical  attendance  al- 
lowed persons  in  the  Navy,  see  section 
1586,  Re\dsed  Statutes. 


Sec.  4813.  [Allowance  from  pensions  to  Navy  hospitals.]  Whenever  any 
Navy  officer,  seaman,  or  marine,  entitled  to  a  pension,  is  admitted  to  a  Navy 
hospital,  the  pension,  during  his  continuance  in  the  hospital,  shall  be  paid  to 
the  Secretary  of  the  Navy  and  deducted  from  the  account  of  such  pensioner. — ■ 
(Ibid.) 


Amendment  to  this  section  was  made  by  act  of 
May  4,  1898  (30  Stat.,  377),  which  provided 
that  "whenever  any  officer,  seaman,  or 
marine  entitled  to  a  pension  is  admitted  to 
the  Naval  Home  at  Philadelphia,  or  to  a 


naval  hospital,  his  pension,  while  he  re- 
mains there,  shall  be  deducted  from  his  ac- 
counts and  paid  to  the  Secretary  of  the 
Navy  for  the  benefit  of  the  fund  from  which 
such   home   or   hospital,    respectively,    is 


1160 


Hospitals. 


Pt.  2.  REVISED  STATUTES. 


Sec.  4839. 


maintained;  and  section  forty-eight  hun- 
dred and  thirteen  of  the  Revised  Statutes  of 
the  United  States  is  hereby  amended  ac- 
cordingly.' '  Thisamendment  was  repeated 
in  identical  language  in  the  naval  appropria- 
tion act  of  March  3,  1899  (30  Stat.,  1027). 

By  act  of  June  30,  1914  (38  Stat.,  398),  it  was 
provided  that  "the  pensions  of  benefi- 
ciaries of  the  Naval  Home  shall  be  disposed 
of  in  the  same  manner  as  prescribed  for  in- 
mates of  the  Soldiers'  Home,  as  provided  for 
in  section  four  of  the  Act  approved  March 
third,  eighteen  hundred  and  eighty-three, 
under  such  regulations  as  the  Secretary  of 
the  Navy  may  prescribe,  except  that  in  the 
case  of  death  of  any  beneficiary  leaving  no 
heirs  at  law  nor  next  of  kin  any  pension  due 
him  shall,  subject  to  the  foregoing  provi- 
sions, escheat  to  the  naval  pension  fund." 

By  act  of  March  3,  1883,  section  4  (22  Stat. ,  564), 
relating  to  the  Soldiers'  Home,  and  which 
was  extended  to  the  Naval  Home,  Avith  cer- 
tain modifications, by  the  act  of  June  30,1914, 
above-quoted ,  it  was  provided  that  "Any  in- 
mate of  the  Home  who  is  receiving  a  pension 
from  the  government,  and  who  has  a  child, 
Avife,  or  parent  living,  shall  be  entitled,  by 
fiUng  with  the  pension  agent  from  whom  he 
receives  his  money  a  Avritten  dii'ection  to 


that  effect,  to  have  his  pension,  or  any  part 
of  it,  paid  to  such  child,  wife,  or  parent. 
The  pensions  of  all  who  now  are  or  shall 
hereafter  become  inmates  of  the  Home,  ex- 
cept such  as  shall  be  assigned  as  aforesaid, 
shall  be  paid  to  the  treasurer  of  the  Home. 
The  money  thus  derived  shall  not  become 
a  part  of  the  funds  of  the  Home,  but  shall 
be  held  by  the  treasurer  in  trust  for  the  pen- 
sioner to  whom  it  would  otherwise  have 
been  paid,  and  such  part  of  it  as  shall  not 
sooner  have  been  paid  to  him  shall  be  paid 
to  him  on  his  discharge  from  the  institution. 
The  board  of  commissioners  may  from  time 
to  time  pay  over  to  any  inmate  such  part  of 
his  pension-money  as  they  think  best  for  his 
interest  and  consistent  ^vith  the  discipline 
and  good  order  of  the  Home,  but  such  pen- 
sioner shall  not  be  entitled  to  demand  or 
have  the  same  so  long  as  he  remains  an  in- 
mate of  the  Home.  In  case  of  the  death  of 
any  pensioner,  any  pension  money  due  him 
and  remaining  in  the  hands  of  the  treasurer 
shall  be  paid  to  his  legal  heirs,  if  demand  is 
made  within  three  years;  othenvise  the 
same  shall  escheat  to  the  Home." 
Disposition  of  pensions;  inmates  Naval 

Home.^ — See  notes  to  sections  4756  and  4757, 

Revised  Statutes. 


See  section  1551,  Revised  Statutes,  and  note 
thereto;  see  also  note  to  section  4756,  Re- 
vised Statutes. 


Sec.  4838.  [Saint  Elizabeths  Hospital.]  There  shall  be  in  the  District  of 
Columbia  a  Government  Hospital  for  the  Insane,  and  its  object  shall  be  the 
most  humane  care  and  enlightened  curative  treatment  of  the  insane  of  the  Army 
and  Navy  of  the  United  States  and  of  the  District  of  Columbia. —  (3  Mar., 
1855,  c.  199,  s.  1,  V.  10,  p.  682.) 

Amendment  to  this  section,  but  without  direct 
reference  thereto,  was  made  by  act  of 
July  1,  1916  (39  Stat.,  309),  which  pro- 
vided that  "the  Government  Hospital  for 
the  Insane  shall  be  known  and  designated 
as  Saint  Elizabeths  Hospital." 

Sec.  4839.  [Superintendent;  money  and  pensions  of  inmates.]  The  chief 
executive  officer  of  the  Government  Hospital  for  the  Insane  shall  be  a  super- 
intendent, who  shall  be  appointed  by  the  Secretary  of  the  Interior,  *  *  * 
and  shall  give  bond  for  the  f  aitlihil  performance  of  his  duties  in  such  sum  and 
with  such  securities  as  may  be  required  by  the  Secretary  of  the  Interior.  The 
superintendent  shall  be  a  well-educated  physician,  possessing  competent  expe- 
rience in  the  care  and  treatment  of  the  insane;  he  shaU  reside  on  the  premises 
and  devote  his  whole  time  to  the  welfare  of  the  institution;  he  shall,  subject  to 
the  approval  of  the  board  of  visitors,  appoint  a  responsible  disbm^sing  agent  for 
the  institution,  who  shall  give  a  bond  satisfactory  to  the  Secretary  of  the  Inte- 
rior, and  the  said  superintendent  shall  engage  and  discharge  all  needful  and 
useful  employees  in  the  care  of  the  insane  and  ah  laborers  on  the  farm  and 
determine  their  wages  and  duties;  he  shall  also  be  an  ex  officio  secretary  of  the 
boai'd  of  visitors.  The  said  disbursing  agent,  under  the  direction  of  the  super- 
intendent, shall  have  the  custody  of  and  pay  out  all  moneys  appropriated  by 
Congi'ess  for  the  Government  Hospital  for  the  Insane,  or  otherwise  received 
for  the  purposes  of  the  hospital,  and  all  moneys  received  by  the  superintendent 
in  behalf  of  the  hospital  or  its  patients,  and  keep  an  accm^ate  accomit  or  accounts 


1161 


Sec.  4843.  Pt.  2.  REVISED  STATATES.  Hospitals. 

thoroof .  Tho  said  disbursing  agont  shall  deposit  in  the  Treasury  of  the  United 
StaUvs,  under  the  direction  of  the  superintendent,  all  funds  now  in  tho  hands  of 
the  superintendent  or  which  may  hereafter  be  intrusted  to  him  by  or  for  the 
use  of  patients,  which  shall  bo  kept  in  a  separate  account;  and  the  said  disburs- 
ing agent  is  authorized  to  draw  therefrom,  under  the  direction  of  the  said 
superintendent,  from  time  to  time,  under  such  regulations  as  the  Secretary  of 
the  Interior  may  prescribe,  for  the  use  of  such  patients,  but  not  to  exceed  for 
any  one  patient  the  amomit  intrusted  to  the  superintendent  on  account  of  such 
patient.  During  the  time  that  any  pensioner  shall  be  an  inmate  of  the  Govern- 
ment Hospital  for  the  Insane,  all  money  due  or  becoming  due  upon  his  or  her 
pension  shall  be  paid  by  the  pension  agent  to  the  superintendent  or  disbursing 
agent  of  the  hospital,  upon  a  certificate  by  such  superintendent  that  the  pen- 
sioner is  an  inmate  of  the  hospital  and  is  living,  and  such  pension  money  shall 
be  by  said  superintendent  or  disbureing  agent  disbursed  and  used,  under  regula- 
tions to  be  prescribed  by  the  Secretary  of  the  Interior,  for  the  benefit  of  the 
pensioner,  and,  in  case  of  a  male  pensioner,  his  wife,  minor  childi'on,  and  depend- 
ent parents,  or,  if  a  female  pensioner,  her  minor  children,  if  any,  in  the  order 
named,  and  to  pay  his  or  her  board  and  maintenance  in  the  hospital,  the 
remamder  of  such  pension  money,  if  any,  to  be  placed  to  the  credit  of  the  pen- 
sioner and  to  be  paid  to  the  pensioner  or  the  guardian  of  the  pensioner  in  the 
event  of  his  or  her  discharge  from  the  hospital;  or,  in  the  event  of  the  death  of 
said  pensioner  while  an  inmate  of  said  hospital,  shall,  if  a  female  pensioner,  be 
paid  to  her  minor  children,  and,  in  the  case  of  a  male  pensioner,  be  paid  to  his 
wdfe,  if  living;  if  no  wife  survives  him,  then  to  his  minor  children;  and  in  case 
there  is  no  wife  nor  minor  children,  then  the  said  unexpended  balance  to  his 
or  her  credit  shall  be  applied  to  the  general  uses  of  said  hospital:  Provided, 
That  in  the  case  of  any  pensioner  transferred  to  the  hospital  from  the  National 
Home  for  Disabled  Volunteer  Soldiers  any  pension  money  to  his  credit  at  said 
Home  at  the  time  of  his  said  transfer  shall  be  transferred  with  him  to  said  hos- 
pital and  placed  to  his  credit  therein,  to  be  expended  as  hereinbefore  provided, 
and  in  case  of  his  retm"n  from  said  hospital  to  the  Home  any  balance  to  his 
credit  at  said  hospital  shall  in  like  manner  be  transferred  to  said  Home,  to  be 
expended  in  accordance  with  the  rules  established  in  regard  thereto,     *     *     *_ 

This  section  was  expressly  amended  and  reen-  See  note  to  section  4756,  as  to  pensions  of  in- 
acted  to  read  as  above  by  act  of  February  mates  of  Saint  Elizabeths  Hospital. 

2,  1909  (35  Stat.,  592).  See  note  to  section  1551,  Revised  Statutes,  as 

See  note  to  section  4838  as  to  change  of  designa-  to  allotments,  etc.,  of  inmates. 

tion  to  "Saint  Elizabeths  Hospital. " 

Sec.  4843.  [Admission  of  insane  persons  of  Navy,  Marine  Corps,  etc.]  The 
superintendent,  upon  the  order  of  the  Secretary  of  War,  of  the  Secretary  of 
the  Navy,  and  of  the  Secretary  of  the  Treasury,  respectively,  shall  receive,  and 
keep  in  custody  until  they  are  ciu-ed,  or  removed  by  the  same  authority  which 
ordered  their  reception,  insane  persons  of  the  following  descriptions: 

First.  Insane  persons  belonging  to  the  Ai-my,  Navy,  Marine  Corps,  and 
revenue-cutter  service. 

Second.  Civilians  employed  in  the  Quartermaster's  and  Subsistence  Depart- 
ments of  the  Army  who  may  be,  or  may  hereafter  become,  insane  while  in 
such  employment. 

1162 


Hospitals. 


Ft.  2.  REVISED  STATUTES. 


Sec.  4878. 


Third.  Men  who,  while  in  the  service  of  the  United  States,  in  the  Army 
Navy,  or  Marine  Corps,  have  been  admitted  to  the  hospital,  and  have  been 
thereafter  discharged  from  it  on  the  supposition  that  they  have  recovered 
their  reason,  and  have,  within  three  years  after  such  discharge,  become  again 
insane  from  causes  existing  at  the  time  of  such  discharge,  and  have  no  adequate 
means  of  support. 

Fourth.  Indigent  insane  persons  who  have  been  in  either  of  the  said  services 
and  been  discharged  therefrom  on  account  of  disability  arising  from  such 
insanity. 

Fifth.  Indigent  insane  persons  who  have  become  insane  within  three  years 
after  their  discharge  from  such  service,  from  causes  which  arose  during  and 
were  produced  by  said  service. —  (15  June,  1860,  c.  66,  s.  1,  v.  12,  p.  23.  13 
July,  1866,  c.  179,  ss.  1,  2,  v.  14,  pp.  93,  94.  3  Mar.,  1875,  c.  156,  s.  5,  v.  18,  y. 
486.) 


of  October  6,  1917  (40  Stat.,  373),  with 
reference  to  interned  persons  and  prisoners 
of  war  under  the  jurisdiction  of  the  War 
Department. 

Other  statutes  relating  to  admissions  to  this 
hospital  do  not  relate  to  the  Navy  and  are 
not  noted. 

With  reference  to  habeas  corpus  proceedings  in 
the  cases  of  persons  in  the  naval  service 
committed  to  Saint  Elizabeths  Hospital, 
see  note  to  section  761,  Revised  Statutes, 
under  "appeal  from  decision  of  the  court 
or  justice  granting  writ,"  and  "arrest  of 
petitioner  after  discharge." 


The  Revenue-Cutter  Service  and  the  Life- 
Saving  Service  were  consolidated  and  re- 
established as  the  "Coast  Guard"  by  act 
of  January  28,  1915  (38  Stat.,  800).  See 
notes  to  sections  1492  and  2757,  Revised 
Statutes. 

By  act  of  August  29,  1916  (39  Stat.,  558),  it  was 
provided  that  ' '  hereafter  interned  persons 
and  prisoners  of  war,  under  the  jurisdic- 
tion of  the  Navy  Department,  who  are  or 
may  become  insane,  shall  be  entitled  to 
admission  for  treatment  to  the  Govern- 
ment Hospital  for  the  Insane' '  (now  desig- 
nated as  Saint  Elizabeths  Hospital).  A 
similar  provision  was  contained  in  the  act 

Sec.  4878.  [Burial  in  national  cemeteries.]  All  soldiers,  sailors,  or  marines 
dying  in  the  service  of  the  United  States,  or  dying  in  a  destitute  condition 
after  having  been  honorably  discharged  from  the  service,  or  who  served,  or 
hereafter  shall  have  served,  during  any  war  in  which  the  United  States  has 
been,  or  may  hereafter  be  engaged,  and,  with  the  consent  of  the  Secretary 
of  War,  any  citizen  of  the  United  States  who  served  in  the  Army  or  Navy 
of  any  government  at  war  with  Germany  or  Austria  during  the  World  War 
and  who  died  while  in  such  service  or  after  honorable  discharge  therefrom, 
may  be  buried  in  any  national  cemetery  free  of  cost.  The  production  of  the 
honorable  discharge  of  a  deceased  man  in  the  former  case,  and  a  duly  executed 
permit  of  the  Secretary  of  War  in  the  latter  case,  shall  be  sufficient  authority 
for  the  superintendent  of  any  cemetery  to  permit  the  interment.  Army 
nurses  honorably  discharged  from  their  service  as  such  may  be  biu"ied  in  any 
national  cemetery,  and,  if  in  a  destitute  condition,  free  of  cost.  The  Secretary 
of  War  is  authorized  to  issue  certificates  to  those  Army  nurses  entitled  to  such 
burial. 


This  section  was  expressly  amended  and  re- 
enacted  to  read  as  above  by  act  of  April 
15,  1920  (41  Stat.,  5-52).     See  act  of  March 


4,  1921  (41  Stat..  1440),  as  to  entomb- 
ments in  Arlington  Memorial  Amphi- 
theater. 


54641°— 22- 


-74 


1163 


TITLE   LX. 


PATENTS,  TRADE-MARKS,  AND    COPYRIGHTS. 

Sec.  4894.  [Applications  for  patents ;  Government  interested.]  All  applica- 
tions for  patents  shall  be  completed  and  prepared  for  examination  within  one 
year  after  the  filing  of  the  apphcation,  and  in  default  thereof,  or  upon  failure 
of  the  applicant  to  prosecute  the  same  witliin  one  year  after  any  action  therein, 
of  which  notice  shall  have  been  given  to  the  applicant,  they  shall  be  regarded 
as  abandoned  by  the  parties  thereto,  unless  it  be  shown  to  the  satisfaction 
of  the  Commissioner  of  Patents  that  such  delay  was  unavoidable:  Provided, 
however,  That  no  application  shall  be  regarded  as  abandoned  which  has  become 
the  property  of  the  Government  of  the  United  States  and  with  respect  to 
which  the  head  of  any  department  of  the  Government  shall  have  certified  to 
the  Commissioner  of  Patents,  mthin  a  period  of  three  years,  that  the  invention 
disclosed  therein  is  important  to  the  armament  or  defense  of  the  United  States: 
Provided  further,  That  within  ninety  days,  and  not  less  than  thirty  days, 
before  the  expiration  of  any  such  three-year  period  the  Commissioner  of 
Patents  shall,  in  wi'iting,  notify  the  head  of  the  department  interested  in  any 
pending  application  for  patent,  of  the  approaching  expiration  of  the  three-year 
period  within  which  any  application  for  patent  shall  have  been  pending. 

This  section  was  expressly  amended  and  reen- 

acted  to  read  as  above  by  act  of  July  6, 

1916  (39  Stat.,  348). 
Issuance    of   patents   to    Government   officers 

without  payment  of  fee,  in  certain  case. — 

See  act  March  3,  1883  (22  Stat.,  625). 
Requests  by  heads  of  departments  to  expedite 

issuance   of   patents. — See   act   March    3, 

1897  (29  Stat.,  694). 
Unauthorized  use  of  patent  by  United  States; 

suit  in  Court  of  Claims  authorized  in  cer- 


tain cases. — See  act  of  July  1,  1918  (40 
Stat.,  705),  amending  and  reenacting  act  of 
June  25,  1910  (36  Stat.,  851),  on  the  same 
subject. 

Withholding  of  patents  during  war,  if  disclo- 
sure of  invention  would  be  detrimental  to 
the  public  safety  or  defense. — See  act  of 
October  6,  1917740  Stat.,  394). 

See  note  to  Constitution,  Article  I,  section  8, 
clause  8. 


1165 


TITLE   LXVI. 

EXTEADITION. 

Sec.  5275.  [Use  of  naval  forces  for  protection  of  accused.]  Whenever  any 
person  is  delivered  by  any  foreign  government  to  an  agent  of  the  United  States, 
for  the  purpose  of  being  brought  within  the  United  States  and  tried  for  any 
crime  of  which  he  is  duly  accused,  the  President  shall  have  power  to  take  all 
necessary  measures  for  the  transportation  and  safe-keeping  of  such  accused 
person,  and  for  his  security  against  lawless  violence,  until  the  final  conclusion 
of  his  trial  for  the  crimes  or  offenses  specified  in  the  warrant  of  extradition, 
and  until  his  final  discharge  from  custody  or  imprisonment  for  or  on  account 
of  such  crimes  or  offenses,  and  for  a  reasonable  time  thereafter,  and  may 
employ  such  portion  of  the  land  or  naval  forces  of  the  United  States,  or  of  the 
militia  thereof,  as  may  be  necessary  for  the  safe-keeping  and  protection  of 
the  accused.— (3  Mar..  1869,  c.  141.  s.  1,  v.  15.  p.  337.) 


1167 


TITLE   LXIX. 
INSURRECTION. 


Sec. 
5297. 
5293. 
5299. 

5300. 
5306. 

5310. 


Inaurrection  ajjainst  State. 
Insurrection  against  United  States. 
Domestic  violence  in  violation  of  civil 

rights. 
Proclamation  to  insurgents  to  disperse. 
Trading  without  license;  embezzlement; 

other  offenses. 
Property  taken  on  inland  waters. 


Sec. 
5311 


proceedings;      property 


Condemnation 
seized. 

5313.  Trading  in  captured  or  abandoned  prop- 

erty; punishment. 

5314.  Collection  of  duties;  insurrection. 

5315.  Removal  of  customhouse. 

5316.  Enforcement  of  preceding  sections;  use 

of  Navy. 


Sec.  5297.  [Insurrection  against  State.]  In  case  of  an  insurrection  in  any 
State  against  the  government  thereof,  it  shall  be  la-w^ul  for  the  President,  on 
application  of  the  legislature  of  such  State,  or  of  the  executive,  when  the  legis- 
lature cannot  be  convened,  to  call  forth  such  number  of  the  militia  of  any  other 
State  or  States,  which  may  be  applied  for,  as  he  deems  sufficient  to  suppress 
such  insurrection;  or,  on  like  application,  to  employ,  for  the  same  purposes, 
such  part  of  the  land  or  naval  forces  of  the  United  States  as  he  deems  neces- 
sary.—(28  Feb.,  1795,  c.  36,  s.  1,  v.  1,  p.  424.     3  Mar.,  1807,  c.  39,  v.  2,  p.  443.) 

See  note  to  Constitution,  Article  I,  section  8,  clause  11,  as  to  war  power. 

Sec.  5298.  [Insurrection  against  United  States.]  Whenever,  by  reason  of 
unlawful  obstructions,  combinations,  or  assemblages  of  persons,  or  rebellion 
against  the  authority  of  the  Government  of  the  United  States,  it  shall  become 
impracticable,  in  the  judgment  of  the  President,  to  enforce,  by  the  ordinary 
course  of  judicial  proceedings,  the  laws  of  the  United  States  within  any  State 
or  Territory,  it  shall  be  la^\^ul  for  the  President  to  call  forth  the  militia  of  any 
or  all  the  States,  and  to  employ  such  parts  of  the  land  and  naval  forces  of  the 
United  States  as  he  may  deem  necessary  to  enforce  the  faithful  execution 
of  the  laws  of  the  United  States,  or  to  suppress  such  rebellion,  in  whatever 
State  or  Territory  thereof  the  laws  of  the  United  States  may  be  forcibly 
opposed,  or  the  execution  thereof  forcibly  obstructed. —  (29  July,  1861,  c. 
25,  s.  1,  V.  12,  p.  281.) 

Sec.  5299.  [Domestic  violence  in  violation  of  civil  rights.]  Whenever 
insurrection,  domestic  violence,  unlawful  combinations,  or  conspiracies  in  any 
State  so  obstructs  or  hinders  the  execution  of  the  laws  thereof,  and  of  the 
United  States,  as  to  deprive  any  portion  or  class  of  the  people  of  such  State  of 
any  of  the  rights,  privileges,  or  immunities,  or  protection,  named  in  the  Constitu- 
tion and  secured  by  the  laws  for  the  protection  of  such  rights,  privileges,  or 
immunities,  and  the  constituted  authorities  of  such  State  are  unable  to  protect, 
or,  from  any  cause,  fail  in  or  refuse  protection  of  the  people  in  such  rights, 
such  facts  shall  be  deemed  a  denial  by  such  State  of  the  equal  protection  of  the 
laws  to  which  they  are  entitled  under  the  Constitution  of  the  United  States; 
and  in  all  such  cases,  or  whenever  any  such  insurrection,  violence,  unlawful 
combination,  or  conspiracy,  opposes  or  obstructs  the  laws  of  the  United  States, 


1169 


Sec.  5313.  Pt.  2.  REVISED  STATUTES.  Insurrection. 

Or  the  due  execution  thereof,  or  impedes  or  obstructs  the  due  course  of  justice 
under  the  same,  it  shall  be  lawful  for  the  President,  and  it  shall  be  his  duty,  to 
take  such  measures,  by  the  employment  of  the  militia  or  the  land  and  naval 
forces  of  the  Ignited  States,  or  of  either,  or  by  other  means,  as  he  may  deem 
necessary,  for  tlie  suppression  of  such  insurrection,  domesticviolence,  or  combina- 
tions.—(20  April  1S71,  c.  22,  s.  3,  v.  17,  p.  14.) 

Sec.  5300.  [Proclamation  to  insurgents  to  disperse.]  ^VheneYer,  in  the 
judgment  of  the  President,  it  becomes  necessar}'  to  use  the  military  forces 
under  this  Title,  the  President  shall  forthwith,  by  proclamation,  command 
the  insurgents  to  disperse  and  retire  peaceably  to  their  respective  abodes, 
within  a  limited  time.— (29  July,  1861,  c.  25,  s.  2,  v.  12,  p.  282.) 

Sec.  5306.  [Trading  without  license  ;  embezzlement ;  other  offenses.]  Every 
officer  of  the  United  States,  civil,  military,  or  naval,  and  every  sutler,  soldier, 
marine,  or  other  person,  who  takes,  or  causes  to  be  taken  into  a  State  declared 
to  be  in  insurrection,  or  to  any  other  point  to  be  thence  taken  into  such  State, 
or  who  transports  or  sells,  or  otherwise  disposes  of  therein,  any  goods,  wares, 
or  merchandise  whatsoever,  except  in  pursuance  of  license  and  authority  of  the 
President,  as  provided  in  this  Title,  or  who  makes  any  false  statement  or  repre- 
sentation upon  which  license  and  authority  is  granted  for  such  transportation, 
sale,  or  other  disposition,  or  who,  under  any  license  or  authority  obtained, 
willfully  and  knowingly  transports,  sells,  or  otherwise  disposes  of  any  other 
goods,  wares,  or  merchandise  than  such  as  are  in  good  faith  so  licensed  and 
authorized,  or  who  willfully  and  knowingly  transports,  sells,  or  disposes  of  the 
same,  or  any  portion  thereof,  in  violation  of  the  terms  of  such  license  or  authority, 
or  of  any  rule  or  regulation  prescribed  by  the  Secretary  of  the  Treasury  con- 
cerning the  same,  or  who  is  guilty  of  any  act  of  embezzlement,  of  willful  mis- 
appropriation of  public  or  private  money  or  property,  of  keeping  false  accounts, 
or  of  willfully  making  any  false  returns,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  shall  be  fined  not  more  than  five  thousand  dollars,  and  imprisoned 
in  the  penitentiary  not  more  than  three  years.  Violations  of  this  section  shall 
be  cognizable  before  any  court,  civil  or  military,  competent  to  try  the  same. — 
(2  July,  1864,  c.  225,  s.  10,  v.  13,  p.  377.) 

Sec.  5310.  [Property  taken  on  inland  waters.]  No  property  seized  or 
taken  upon  any  of  the  inland  waters  of  the  United  States  by  the  naval  forces 
thereof  shall  be  regarded  as  maritime  prize;  but  all  property  so  seized  or  taken 
shall  be  promptly  delivered  to  the  proper  officers  of  the  courts. —  (2  July,  1864, 
c.  225,  s.  7,  V.  13,  p.  377.) 

See  sections  4613-4652,  Revised  Statutes,  and  notes  thereto,  on  subject  of  prize. 

Sec.  5311.  [Condemnation  proceedings;  property  seized.]  The  Attorney- 
General,  or  the  attorney  of  the  United  States  for  any  judicial  district  in  which 
such  property  may  at  the  time  be,  may  institute  the  proceedings  of  condemna- 
tion, and  in  such  case  they  shall  be  wholly  for  the  benefit  of  the  United  States; 
or  any  person  may  file  an  information  with  such  attorney,  in  which  case  the 
proceedings  shall  be  for  the  use  of  such  informer  and  the  United  States  in 
equal  parts. —  (6  Aug.,  1861,  c.  68,  s.  3,  v.  12,  p.  319.) 

Sec.  5313.  [Trading  in  captured  or  abandoned  property;  punishment.]  All 
persons  in  the  military  or  naval  service  of  the  United  States  are  prohibited 

1170 


Insurrection.  Pt.  2.  REVISED  STATUTES.  Sec.  5315. 

from  buying  or  selling,  trading,  or  in  any  way  dealing  in  captured  or  abandoned 
property,  whereby  they  shall  receive  or  expect  any  profit,  benefit,  or  advantage 
to  themselves,  or  any  other  person,  directly  or  indirectly  connected  with  them; 
and  it  shall  be  the  duty  of  such  person  whenever  such  property  comes  into  his 
possession  or  custody,  or  within  his  control,  to  give  notice  thereof  to  some 
agent,  appointed  by  virtue  of  this  Title,  and  to  turn  the  same  over  to  such 
agent  without  delay.  Any  officer  of  the  United  States,  civil,  military,  or  naval, 
or  any  sutler,  soldier,  or  marine,  or  other  person  who  shall  violate  any  provision 
of  this  section,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be  fined 
not  more  than  five  thousand  dollars,  and  imprisoned  in  the  penitentiary  not 
more  than  three  years.  Violations  of  this  section  shall  be  cognizable  before 
any  court,  civil  or  military,  competent  to  try  the  same. —  (2  July,  1864,  c.  225, 
s.  10,  V.  13,  p.  377.) 

Sec.  5314.  [Collection  of  duties;  insurrection.]  Whenever  the  President 
shall  deem  it  impracticable,  by  reason  of  unlawful  combmations  of  persons  in 
opposition  to  the  laws  of  the  United  States,  to  collect  the  duties  on  imports  in 
the  ordinary  way,  at  any  port  of  entry  in  any  collection-district,  he  may  cause 
such  duties  to  be  collected  at  any  port  of  delivery  in  the  district  until  such  ob- 
struction ceases ;  in  such  case  the  surveyor  at  such  port  of  delivery  shall  have 
the  powers  and  be  subject  to  all  the  obligations  of  a  collector  at  a  port  of  entry. 
The  Secretary  of  the  Treasury,  with  the  approval  of  the  President,  shall 
also  appoint  such  weighers,  gaugers,  measurers,  inspectors,  appraisers,  and 
clerks,  as  he  may  deem  necessary,  for  the  faitliful  execution  of  the  revenue 
laws  at  such  port  of  delivery,  and  shall  establish  the  limits  within  which  such 
port  of  delivery  is  constituted  a  port  of  entry.  And  all  the  provisions  of  law 
regulating  the  issue  of  marine  papers,  the  coasting-trade,  the  warehousing  of 
imports,  and  the  collection  of  duties,  shall  apply  to  the  ports  of  entry  thus 
constituted,  in  the  same  manner  as  they  do  to  ports  of  entry  established  by 
law.— (13  July,  1861,  c.  3,  s.  1,  v.  12,  p.  255.) 

Sec.  5315.  [Removal  of  custom-house.]  Whenever,  at  any  port  of  entry, 
the  duties  on  imports  can  not,  in  the  judgment  of  the  President,  be  collected 
in  the  ordinary  way,  or  by  the  course  provided  in  the  preceding  section,  by 
reason  of  the  cause  mentioned  therein,  he  may  direct  that  the  custom-house 
for  the  district  be  established  in  any  secure  place  within  the  district,  either  on 
land  or  on  board  any  vessel  in  the  district,  or  at  sea  near  the  coast;  and  in  such 
case  the  collector  shall  reside  at  such  place,  or  on  shipboard,  as  the  case  may 
be,  and  there  detain  all  vessels  and  cargoes  arriving  within  or  approaching  the 
district,  until  the  duties  imposed  by  law  on  such  vessels  and  their  cargoes  are 
paid  in  cash.  But  if  the  owner  or  consignee  of  the  cargo  on  board  any  vessel 
thus  detained,  or  the  master  of  the  vessel,  desires  to  enter  a  port  of  entry  in 
any  other  district  where  no  such  obstructions  to  the  execution  of  the  laws  exist, 
the  master  may  be  permitted  so  to  change  the  destination  of  the  vessel  and 
cargo  in  his  manifest;  whereupon  the  collector  shall  deliver  him  a  written 
permit  to  proceed  to  the  port  so  designated.  And  the  Secretary  of  the  Treas- 
ury, with  the  approval  of  the  President,  shall  make  proper  regulations  for  the 
enforcement  on  shipboard  of  such  provisions  of  the  laws  regulating  the  assess- 
ment and  collection  of  duties  as  in  his  judgment  may  be  necessary  and  prac- 
ticable.—(Ibid.,  s.  2,  p.  256.     3  Mar.,  1875,  c.  136,  s.  2,  v.  18,  p.  469.) 

1171 


Sec.  6316.  Ft.  2.  REVISED  STATUTES.  Insurrection. 

Sec.  5316.  [Enforcement  of  preceding  sections;  use  of  Navy.]  It  shjiU  bo 
unlawful  to  take  any  vessel  or  cargo  detained  under  the  preceding  section 
from  the  custody  of  the  proper  officers  of  the  customs,  unless  by  process  of 
some  court  of  the  United  States;  and  in  case  of  any  attempt  otherwise  to  take 
such  vessel  or  cargo  by  any  force,  or  combination,  or  assemblage  of  persons 
too  great  to  be  overcome  by  the  officers  of  the  customs,  the  President,  or  such 
person  as  he  shall  have  empowered  for  that  purpose,  may  employ  such  part  of 
the  ^Vrmy  or  Navy  or  militia  of  the  United  States,  or  such  force  of  citizen 
volunteers  as  may  be  necessary,  to  prevent  the  removal  of  such  vessel  or  cargo, 
and  to  protect  the  officers  of  the  customs  in  retaining  the  custody  thereof. — 
(12  July,  1861,  c.  3,  s  3,  v.  12,  p.  256.) 


1172 


TITLE   LXXIV. 


REPEAL  PROVISIONS. 


Sec. 
5595. 
5596. 
5600. 


What  Revised  Statutes  embrace. 
Repeal  of  acts  embraced  in  revision. 
Arrangement  and  classification   of  sec- 
tions. 


Sec. 

5601.  Acts  passed  since  December  1,  1873,  not 
affected. 


Sec.  5595.  [What  Revised  Statutes  embrace.]  The  foregoing  seventy-three 
titles  embrace  the  statutes  of  the  United  States  general  and  permanent  in  their 
nature,  in  force  on  the  1st  day  of  December  one  thousand  eight  hundred  and 
seventy- three,  as  revised  and  consoUdated  by  commissioners  appointed  under 
an  act  of  Congress,  and  the  same  shall  be  designated  and  cited,  as  The  Revised 
Statutes  of  the  United  States.— (20  June,  1874,  c.  333,  v.  18,  ]).  113.  28  Dec, 
1874,  c.  9,  V.  18,  p.  293.) 

See  "Introduction,"  under  "II.  The  Revised  Statutes. " 

Sec.  5596.  [Repeal  of  acts  embraced  in  revision.]  All  acts  of  Congress  passed 
prior  to  said  first  day  of  December  one  thousand  eight  hundred  and  seventy- 
three,  any  portion  of  which  is  embraced  in  any  section  of  said  revision,  are 
hereby  repealed,  and  the  section  applicable  thereto  shall  be  in  force  in  lieu 
thereof;  all  parts  of  such  acts  not  contained  in  such  revision,  having  been  re- 
pealed or  superseded  by  subsequent  acts,  or  not  being  general  and  permanent 
in  their  nature:  Provided,  That  the  incorporation  into  said  revision*  of  any 
general  and  permanent  provision,  taken  from  an  act  making  appropriations, 
or  from  an  act  containing  other  provisions  of  a  private,  local,  or  temporary 
character,  shall  not  repeal,  or  in  any  way  affect  any  appropriation,  or  any 
provision  of  a  private,  local  or  temporary  character,  contained  in  any  of  said 
acts,  but  the  same  shall  remain  in  force;  and  all  acts  of  Congress  passed  prior 
to  said  last-named  day  no  part  of  which  are  embraced  in  said  revision,  shall  not 
be  affected  or  changed  by  its  enactment. —  (U.  S.  v.  Jordan,  2  Low.,  537.) 

See  "Introduction,"  under  VI,  E,  "Construction  of  particular  statutes,"  subheading,  "Re- 
vised Statutes." 

Sec.  5600.  [Arrangement  and  classification  of  sections.]  The  arrangement 
and  classification  of  the  several  sections  of  the  revision  have  been  made  for  the 
purpose  of  a  more  convenient  and  orderly  arrangement  of  the  same,  and  there- 
fore no  inference  or  presumption  of  a  legislative  construction  is  to  be  drawn 
by  reason  of  the  Title,  under  which  any  particular  section  is  placed. 

Sec.  5601.  [Acts  passed  since  Dec.  1,  1873,  not  affected.]  The  enactment  of 
the  said  revision  is  not  to  affect  or  repeal  any  act  of  Congress  passed  since  the 
1st  day  of  December  one  thousand  eight  hundred  and  seventy-three,  and  all 
acts  passed  since  that  date  are  to  have  full  effect  as  if  passed  after  the  enact- 
ment of  this  revision,  and  so  far  as  such  acts  vary  from,  or  conflict  with  any 
provision  contained  in  said  revision,  they  are  to  have  effect  as  subsequent 
statutes,  and  as  repealing  any  portion  of  the  revision  inconsistent  therewith. — 
(18  Feb.,  1875,  c.  84,  v.  18,  p.  329.     3  Mar.,  1875,  c.  130,  s.  9,  v.  18,  p.  401.) 

Approved,  June  22,  1874. 

1173 


PART  3. 


THE  UNITED  STATES  STATUTES  AT  LARGE. 


(1175) 


[1850,  Sept.  28.  Pay  of  Superintendent,  Naval  Academy.]  And  the  pay  of 
the  superintendent  of  the  naval  school  at  Annapolis  shall  be  at  the  rate  allowed 
to  an  officer  of  his  rank,  when  in  service  at  sea. — (9  Stat.,  515,  chap.  80.) 

See  note  to  section  1556,  Revised  Statutes,  under  "Additional  pay  for  special  duty." 

[1862,  July  16.  Wages  at  navy  yards,  how  fixed.]  That  section  eight  of  an 
act  to  further  promote  the  efficiency  of  the  navy,  approved  December  twenty- 
first,  eighteen  hundred  and  sixty-one,  be  amended  so  as  to  read  as  follows: 
That  the  hours  of  labor  and  the  rate  of  wages  of  the  employees  in  the  navy  yards 
shall  conform,  as  nearly  as  is  consistent  with  the  public  interest,  with  those  of 
private  establishments  in  the  immediate  vicinity  of  the  respective  yards,  to  be 
determined  by  the  commandants  of  the  navy  yards,  subject  to  the  approval 
and  revision  of  the  Secretary  of  the  Navy. — (12  Stat.,  587,  chap.  184.) 


By  Navy  Regulations  and  Naval  Instiiictions, 
1913  (Art.  I.  371),  it  was  provided  that 
"the  rates  of  wages  of  employees  shall 
conform  to  the  standard  of  private  estab- 
lishments in  the  immediate  \'icinity  of  the 
respective  navy  yards  as  pro\TLded  by  the 
act  of  July  16,  18G2    *    *    *." 

See  note  to  act  of  March  3,  1909  (35  Stat.,  754- 
755),  for  a  similar  statutory  provision 
relating  to  compensation  of  employees  at 
na\'y  yards  and  stations. 


No  part  of  this  act  was  embraced  in  any  section 

of  the  Re\dsed  Statutes,  although  portions 

of  the  act  of  December  21,  1861  (12  Stat., 

330),   of  which  it  was  amendatory,   were 

carried  into  the  revision.     (See  sec.  5596, 

R.  S.,  as  to  the  repeal  of  prior  acts  by  the 

re\T.sion.) 
See  note  to  section  1545,  Revised  Statutes,  as  to 

wages  of  na\'y^  yard  employees;  and  as  to 

hours  of  labor,  see  act  of  August  1,  1892  (27 

Stat.,  340),  as  amended  by  act  of  March 

3,  1913  (37  Stat.,  726.) 

[1863,  Mar.  3.  Commandant,  Mare  Island  navy  yard,  pay.]  That  the  pay 
of  the  officer  of  the  navy  assigned  to  the  command  of  the  navy  yard  at  Mare 
Island,  California,  shall  be  the  sea  pay  of  his  grade. — (12  Stat.,  825,  Res.  No.  25.) 

See  note  to  section  1556,  Revised  Statutes,  under  "Additional  pay  for  special  duty." 

[1874,  June  20,   sec.   3.  Extra   compensation  to  civil   officers  prohibited.] 

That  no  civil  officer  of  the  Government  shall  hereafter  receive  any  compensation 
or  perquisites,  directly  or  indirectly,  from  the  treasury  or  property  of  the  United 
States  beyond  his  salary  or  compensation  allowed  by  law:  Provided,  That 
this  shall  not  be  construed  to  prevent  the  employment  and  payment  by  the 
Department  of  Justice  of  district  attorneys  as  now  allowed  by  law  for  the 
performance  of  services  not  covered  by  their  salaries  or  fees. — (18  Stat,  109, 
chap.  328.) 

See  sections  1763-1765,  Revised  Statutes,  and  notes  thereto. 

[1874,  June  20,  sec.  5.  Unexpended  balances  of  appropriations.]  That  from 
and  after  the  first  day  of  July,  eighteen  hundred  and  seventy-four,  and  of  each 
year  thereafter,  the  Secretary  of  the  Treasury  shall  cause  all  unexpended  bal- 
ances of  appropriations  which  shall  have  remained  upon  the  books  of  the 
Treasury  for  two  fiscal  years  to  be  carried  to  the  surplus  fund  and  covered  into 

1177 


As  to  report  to  Congress  of  anio;mts  found  chie 
claimants,  see  act  of  June  14,  1878,  section 
4  (20  Stat.,  130),  which  repealed  a  clause 
omitted  from  this  provision,  and  act  of 
July?,  1884  (23  Stat.,  254). 


June  23,  1874.  Pt.  3.  STATUTES  AT  LARGE. 

the  Treasury:  Provided,  That  this  provision  shall  not  apply  to  permanent 
specific  appropriations,  appropriations  for  rivers  and  harbors,  light-houses, 
fortifications,  public  buildings,  or  the  pay  of  the  navy  and  marine  corps;  but 
the  appropriations  named  in  this  proviso  shall  continue  available  until  other- 
wise ordered  by  Congress. — (IS  Stat.,  110,  chap.  32S.) 

As  to  unexpended  balances  of  appropriations, 

see  section  3(i91,  Revised  Statutes,  and  act 

of  July  2G,  188(),  section  2  (24  Stat.,  157). 
As  to  permanent  specific  appropriations,   see 

section  3689,  Revised  Statutes,  and  act  of 

August  24,  1912,  section  7  (37  Stat.,  487). 

[1874,  June  22.  Pay  on  promotion.]  That  on  and  after  the  passage  of  this 
act,  any  officer  of  the  Navy  who  may  be  promoted  in  course  to  fill  a  vacancy 
in  the  next  higher  grade  shall  be  entitled  to  the  pay  of  the  grade  to  which  pro- 
moted from  the  date  he  takes  rank  therein,  if  it  be  subsequent  to  the  vacancy 
he  is  appointed  to  fill. — (18  Stat.,  191,  chap.  392.) 

See  note  to  section  1561,  Revised  Statutes,  and  see  act  of  March  4,  1913  (37  Stat.,  892). 

[1874,  June  22,  sec.  2.  Pay  of  officers  dismissed  and  restored.]  That  the 
accounting  officers  of  the  Treasury  be,  and  are  hereby,  proliibited  from  making 
any  allowance  to  any  officer  of  the  Navy  who  has  been,  or  may  hereafter  be, 
dismissed  from  the  service  and  restored  to  the  same  under  the  provisions  of  the 
twelfth  section  of  the  act  of  March  third,  eighteen  hundred  and  sixty-five, 
entitled  "An  act  to  amend  the  several  acts  heretofore  passed  to  provide  for  the 
enrolling  and  calling  out  the  national  forces,  and  for  other  purposes,"  to  exceed 
more  than  pay  as  on  leave  for  six  months  from  the  date  of  dismissal,  unless  it 
shall  appear  that  the  officer  demanded  in  writing,  addressed  to  the  Secretary 
of  the  Navy,  and  continued  to  demand  as  often  as  once  in  six  months,  a  trial 
as  provided  for  in  said  act. —  (18  Stat.,  192,  chap.  392.) 


See  section  1624,  Revised  Statutes,  article  37, 
and  note  thereto. 


The  provisions  of  the  act  of  March  3,  1865, 
section  12,  referred  to  above,  are  incorpo- 
rated into  section  1624,  Revised  Statutes, 
article  37. 


[1874,  June  23.  Hazing  at  Naval  Academy.]  That  in  all  cases  when  it  shall 
come  to  the  knowledge  of  the  superintendent  of  the  Naval  Academy,  at 
Annapolis,  that  any  cadet-midsliipman  or  cadet-engineer  has  been  guilty  of 
the  offense  commonly  known  as  hazing,  it  shall  be  the  duty  of  said  superin- 
tendent to  order  a  court-martial,  composed  of  not  less  than  three  commissioned 
officers,  who  shall  minutely  examine  into  all  the  facts  and  circumstances  of 
the  case  and  make  a  finding  thereon;  and  any  cadet-midshipman  or  cadet- 
engineer  found  guilty  of  said  offense  by  said  com-t  shall,  upon  recommendation 
of  said  court  be  dismissed;  and  such  finding,  when  approved  by  said  superin- 
tendent, shall  be  final;  and  the  cadet  so  dismissed  from  said  Naval  Academy 
shall  be  forever  ineligible  to  re-appointment  to  said  Naval  Academy. —  (18 
Stat.,  203-204,  chap.  453.) 


See  notes  to  section  1519,  Re\ised  Statutes,  for 
later  laws  relating  to  hazing  and  the  court- 
martial  of  midshipmen. 

See  notes  to  section  1512,  Revised  Statutes,  as 
to  change  in  title  of  cadet  midshipmen  and 
cadet  engineers. 


See  act  of  April  9,  1906,  section  2  (34  Stat.,  104, 
105),  for  partial  repeal  of  this  enactment. 


1178 


Pt.  3.  STATUTES  AT  LARGE.  Mar.  3,  1875. 

[1875,  Jan.  18.  Traveling  expenses,  approval  of  Secretary.]  For  expenses 
and  transportation  of  ofRcers  traveling  under  orders,  *  *  *  Provided, 
That  no  allowance  shall  be  made  in  the  settlement  of  any  account  for  traveling 
expenses  unless  the  same  be  incurred  on  the  order  of  the  Secretary  of  the 
Navy,  or  the  allowance  be  approved  by  him. — (18  Stat.,  297,  chap.  18.) 

See  note  to  section  1566,  Revised  Statutes,  as  to  mileage  and  traveling  expenses. 

1875,  Mar.  3,  sec.  3.  Estimates,  time  for  furnishing ;  explanations  accom- 
panying.] That  it  shall  be  the  duty  of  the  heads  of  the  several  Executive 
Departments,  and  of  other  officers  authorized  or  required  to  make  estimates, 
to  furnish  to  the  Secretary  of  the  Treasury,  on  or  before  the  first  day  of  October 
of  each  year,  their  annual  estimates  for  the  public  service,  to  be  included  in 
the  Book  of  Estimates  prepared  by  law  under  his  direction;  and  the  Secretary 
of  the  Treasury  shall  submit,  as  a  part  of  the  appendix  to  the  Book  of  Esti- 
mates, such  extracts  from  the  annual  reports  of  the  several  heads  of  Depart- 
ments and  Bureaus  as  relate  to  estimates  for  appropriations,  and  the  necessities 
therefor.— (18  Stat.,  370,  chap.  129.) 

See,  generally,  sections  429,  430,  and  3666,  Re- 
vised Statutes,  and  laws  noted  thereimder. 


As  to  time  of  furnishing  estimates,  see  act  of 
March  3,  1901,  section  5  (31  Stat.,  1009); 
and  see  note  to  section  430,  Revised 
Statutes. 


[1875,  Mar.  S.  Land  grant  railroads.]  That  no  money  shall  hereafter  be 
paid  to  any  railroad  company  for  the  transportation  of  any  property  or  troops 
of  the  United  States  over  any  railroad  which  in  whole  or  in  part  was  con- 
structed by  the  aid  of  a  grant  of  public  land  on  the  condition  that  such  rail- 
road should  be  a  public  highway  for  the  use  of  the  Government  of  the  United 
States  free  from  toll  or  other  charge,  or  upon  any  other  conditions  for  the  use 
of  such  road,  for  such  transportation;  nor  shall  any  allowance  be  made  for 
the  transportation  of  officers  of  the  Army  over  any  such  road  when  on  duty 
and  under  orders  as  military  officers  of  the  United  States.  But  nothing  herein 
contained  shall  be  construed  as  preventing  any  such  railroad  from  bringing  a 
suit  in  the  Court  of  Claims  for  the  charges  for  such  transportation,  and  re- 
covering for  the  same  if  found  entitled  thereto  by  virtue  of  the  laws  in  force 
prior  to  the  passage  of  this  act;  provided  that  the  claim  for  such  charges  shall 
not  have  been  barred  by  the  statute  of  limitations  at  the  time  of  bringing  the 
suit,  and  either  party  shall  have  the  right  of  appeal  to  the  Supreme  Court  of 
the  United  States;  And  provided  further,  That  the  foregoing  provision  shall  not 
apply  for  the  current  fiscal  year,  nor  thereafter,  to  roads  where  the  sole  con- 
dition of  transportation  is  that  the  company  shall  not  charge  the  Government 
higher  rates  than  they  do  individuals  for  like  transportation,  and  when  the 
Quartermaster-General  shall  be  satisfied  that  this  condition  has  been  faithfully 
complied  with.— (18  Stat.,  453-454,  chap.  133.) 


Most  of  the  acts  of  Congress  which  granted 
lands  in  aid  of  railroads  provide  that  they  shall 
be  "free  from  toll  or  other  charge  upon  the 
transportation  of  any  property  or  troops  of  the 
United  States."  A  few  of  the  acts  granting 
lands  in  aid  of  railroads  provide  that  the  grant 
is  "subject  to  such  regulations  as  Congress  may 
impose  restricting  the  charges  for  *  *  * 
Government  transportation."     (E.  g.,  act  July 


27,  1866,  sec.  11,  14  Stat.,  292,  297).  (U.  S.  v. 
Union  Pac.  R.  Co.,  249  U.  S.,  354,  affirming  52 
Ct.  Cls.,  226.) 

By  act  of  February  28,  1920,  section  208  (41 
Stat.,  464),  it  was  provided  that  "any  land 
grant  railroad  organized  under  the  Act  of  July 

28,  1866  (chapter  300)  [14  Stat.,  338],  shall 
receive  the  same  compensation  for  transporta- 
tion of  property  and  troops  of  the  United  States 


54641°— 22 75  1179 


Aug.  15,   1876. 


Pt.  S.  STATUTES  AT  LARGE. 


body  or  detachment  of  soldiers,  viz.,  discharged 
soldiers,  discharged  military  prisoners,  and  re- 
jected applicants  for  enlistment;  apj)licants  for 
enlistment,  provisionally  accepted,  out  subject 
to  final  examination  and  not  sworn  in;  retired 
enlisted  men;  and  furlouehed  soldiers  en  route 
back  to  their  stations.  (United  States  v.  Union 
Pac.  R.  Co.,  249  U.  S.,  354,  affirming  52  Ct. 
Cls.,  226.) 


as  is  paid  to  land  grant  railroads  organized 
under  the  Land  C.rant  Act  of  March  3,  1863  [12 
Stat.,  772],  and  the  Act  of  July  27,  1866  (chapter 
278)  [14  Stat.,  292]." 

The  term  "troops  of  the  United  States"  as 
used  in  land-grant  acts  in  relation  to  transpor- 
tation for  the  Government  does  not  embrace 
any  of  the  following  classes  of  persons,  when 
traveling  separately  and  not  as  part  of  a  moving 

[1876,  June  30.  Mileage  of  Navy  officers.]  And  so  much  of  the  act  of 
Juno  sixteenth,  one  thousand  eight  hundred  and  seventy-four,  making  ap- 
propriations for  the  support  of  the  Army  for  the  fiscal  year  ending  June  thir- 
tieth, one  thousand  eight  hundred  and  seventy-five,  and  for  other  purposes, 
as  provides  that  only  actual  traveling  expenses  shall  be  allowed  to  any  person 
holding  employment  or  appointment  under  the  United  States  while  engaged 
on  public  business,  as  is  applicable  to  officers  of  the  Navy  so  engaged,  is  hereby 
repealed;  and  the  sum  of  eight  cents  per  mile  shall  be  allowed  such  officers 
wliile  so  engaged,  in  lieu  of  their  actual  expenses. —  (19  Stat.,  65,  chap.  159.) 

See  note  to  section  1566,  Revised  Statutes. 

[1876,  June  30.  Increase  of  force  at  navy  yards  before  elections.]  And  no 
increase  of  the  force  at  any  navy-yard  shall  be  made  at  any  time  within  sixty 
daj's  next  before  any  election  to  take  place  for  President  of  the  United  States,  or 
member  of  Congress,  except  when  the  Secretary  of  the  Navy  shall  certify 
that  the  needs  of  the  public  service  make  such  increase  necessary  at  that  time 
which  certificate  shall  be  immediately  published  when  made. —  (19  Stat., 
69-70,  chap.  159.) 

See  note  to  section  1546,  Revised  Statutes. 

[1876,  Aug.  15,  sec.  3.  Changes  in  grades  of  clerks;  honorably  discharged 
soldiers  and  sailors.]  That  w^henever,  in  the  judgment  of  the  head  of  any  de- 
partment, the  duties  assigned  to  a  clerk  of  one  class  can  be  as  well  performed 
by  a  clerk  of  a  lower  class  or  by  a  female  clerk,  it  shall  be  lawful  for  him  to  dimin- 
ish the  number  of  clerks  of  the  higher  grade  and  increase  the  nimiber  of  the  olerks 
of  the  lower  grade  within  the  limit  of  the  total  appropriation  for  such  clerical 
service :  Provided,  That  in  making  any  reduction  of  force  in  any  of  the  executive 
departments,  the  head  of  such  department  shall  retain  those  persons  who  may 
be  equally  qualified  who  have  been  honorably  discharged  from  the  militarj'^  or 
naval  service  of  the  United  States,  and  the  widows  and  orphans  of  deceased 
soldiers  and  sailors. —  (19  Stat.,  169,  chap.  287.) 


See  note  to  section  16G,  Re^dsed  Statutes, 
under  "Increasing  and  diminishing  clerks 
of  different  grades";  and  see  note  to  sec- 


tion 416,  Re^•ised  Statutes,  under  "Honor- 
ably discharged  soldiers  or  sailors";  see 
also  section  1754,  Re\ised  Statutes. 


[1876,  Aug.  15,  sec.  5.  Employing  clerks  beyond  legal  allowance.]  That 
the  executive  officers  of  the  Government  are  hereby  prohibited  from  employ- 
ing any  clerk,  agent,  engineer,  draughtsman  messenger  watchman,  laborer,  or 
other  employee,  in  any  of  the  executive  departments  in  the  city  of  Washington, 
or  elsewhere  beyond  provision  made  by  law, —  (19  Stat.,  169,  chap.  287.) 

See  act  of  August  5,  1882,  section  4  (22  Stat.,  255);  and  see  section  3679,  Re\ised  Statutes, 
as  to  acceptance  of  voluntary  services  by  the  Government. 

[1876,  Aug.  15,  sec.  6.  Political  contributions ;  offenses.]  That  all  execu- 
tive ofiicers  or  employees  of  the  United  States  not  appointed  by  the  President, 

1180 


Ft.  S.  STATUTES  AT  LARGE.  Mar.  3,  1877. 

with  the  advice  and  consent  of  the  Senate,  are  prohibited  from  requesting, 
giving  to,  or  receiving  from,  any  other  officer  or  employee  of  the  Government, 
any  money  or  property  or  other  thing  of  value  for  political  purposes;  and  any 
such  officer  or  employee,  who  shall  offend  against  the  provisions  of  this  section 
shall  be  at  once  discharged  from  the  service  of  the  United  States;  and  he  shall 
also  be  deemed  guilty  of  a  misdemeanor,  and  on  conviction  thereof  shall  be 
fined  in  a  sum  not  exceeding  five  hundred  dollars. —  (19  Stat.,  169,  chap.  287.) 
See  section  1546,  Revised  Statutes,  and  laws  noted  thereunder. 

[1876,  Aug.  15.  Artificial  limbs  to  soldiers  and  sailors.]  That  every  officer, 
soldier,  seaman  and  marine,  who,  in  the  line  of  duty,  in  the  military  or  naval 
service  of  the  United  States,  shall  have  lost  a  limb,  or  sustained  bodily  injuries, 
depriving  him  of  the  use  of  any  of  his  limbs,  shall  receive  once  every  five  years 
an  artificial  limb  or  appliance,  or  commutation  therefor,  as  provided  and 
limited  by  existing  laws,  under  such  regulations  as  the  Surgeon-General  of  the 
Army  may  prescribe;  and  the  period  of  five  years  shall  be  held  to  commence 
with  the  filing  of  the  first  application  after  the  seventeenth  day  of  June,  in 
the  year  eighteen  hundred  and  seventy. 

■  Sec.  2.  That  necessary  transportation  to  have  artificial  limbs  fitted  shall 
be  furnished  by  the  Quartermaster-General  of  the  Army,  the  cost  of  which 
shall  be  refunded  out  of  any  money  appropriated  for  the  purchase  of  artificial 
limbs.— (19  Stat.,  203-204,  chap.  300.) 
See  note  to  section  1176,  Re\'ised  Statutes. 

[1877,  Mar.  3,  sec.  5.  Mail  matter,  official  business,  free  of  postage.]  That 
it  shall  be  lawful  to  transmit  through  the  mail,  free  of  postage,  any  letters, 
packages,  or  other  matters  relating  exclusively  to  the  business  of  the  Govern- 
ment of  the  United  States:  Provided,  That  every  such  letter  or  package  to 
entitle  it  to  pass  free  shall  bear  over  the  words  "Official  business"  an  endorse- 
ment showing  also  the  name  of  the  Department,  and,  if  from  a  bureau  or  office, 
the  names  of  the  Department  and  bureau  or  office,  as  the  case  may  be,  whence 
transmitted.— (19  Stat.,  335-336,  chap.  103.) 


A  further  provision  of  this  section,  relating  to 
punishment  for  unlawful  use  of  official 
envelopes,  was  expressly  repealed  by  the 
Criminal  Code,  act  of  March  4,  1909,  sec- 
tion 341  (35  Stat.,  1153),  and  other  pro- 


visions on  the  subject  were  embodied  in 
section  227  of  the  same  act  (35  Stat.,  1134). 
See  notes  to  sections  388  and  398,  Revised 
Statutes;  and  see  note  to  next  section  of 
this  act,  set  forth  below. 


[1877,  Mar.  3,  sec.  6.  Endorsement  on  official  envelopes.]  That  for  the 
purpose  of  carrying  this  act  into  effect,  it  shall  be  the  duty  of  each  of  the 
Executive  Departments  of  the  United  States  to  provide  for  itself  and  its  sub- 
ordinate offices  the  necessary  envelopes:  and  in  addition  to  the  endorsement 
designating  the  Department  in  which  they  are  to  be  used,  the  penalty  for  the 
unlawful  use  of  these  envelopes  shall  be  stated  thereon. — (19  Stat.,  336, 
chap.  103.) 

See  note  to  preceding  section,  set  forth  above.  section  3  (23  Stat.,  158),  which  acts  also 

This  and  the  preceding  Bection  were  extended  contained  other  provisions  on  the  subject 

to  all  officers  of  the  United  States,  except  of  penalty   envelopes.     See   also   act  of 

Members  of  Congress,  by  act  of  March    3,  June  26,  1906  (34  Stat.,  477),  and  see  notes 

1879,  section  29  (20  Stat.,  362),  as  amended  to  sections  388  and  398,  Revised  Statutes, 
and   reenacted   by   act  of  July   5,    1884, 

[1877,  Mar.  3.  Rent  of  buildings,  District  of  Columbia.]  Hereafter  no 
contract  shall  be  made  for  the  rent  of  any  building,,  or  part  of  any  building, 

1181 


June  14,   1878.  I'l.  .?.  STATUTES  AT  LARdE. 

to  bo  used  for  tho  purposes  of  the  Government  in  the  District  of  Cohimbia, 
until  an  nppropriution  therefor  shall  have  been  made  in  terms  by  Congress, 
and  that  this  clause  be  regarded  as  notice  to  all  contractors  or  lessors  of  any 
such  building  or  any  part  of  building, —  (19  Stat.,  370,  chap.  106.) 

See  acta  of  August  5,  1882  (22  Stat.,  241),  and 
March  .3,  1883  (22  Stat.,  552):  and  see  sec- 
tion 3679,  Revised  Statutes. 


A  somewhat  similar  provision  was  contained 
in  act  of  June  22,  1874  (18  Stat.,  144). 


[1878,  May  4.  Secretaries  and  clerks  at  sea.]  That  on  and  after  the 
first  day  of  July,  eighteen  hundred  and  seventy-eight,  there  shall  be  no  appoint- 
ments made  from  civil  life  of  secretaries  or  clerks  to  the  Admiral,  or  Vice- 
Admiral,  when  on  sea  service,  commanders  of  squadrons,  or  of  clerks  to  com- 
manders of  vessels;  and  an  officer  not  above  the  grade  of  lieutenant  shall  be 
detailed  to  perform  the  duties  of  secretary  to  the  Admiral  or  Vice-Admiral, 
when  on  sea  service,  and  one  not  above  the  grade  of  master  to  perform  the 
duties  of  clerk  to  a  rear-admiral  or  commander,  and  one  not  above  the  grade 
of  ensign  to  perform  the  duties  of  clerk  to  a  captain,  commander,  or  lieutenant- 
commander  when  afloat. — (20  Stat.,  50,  chap.  91.) 

Grade  of  master  is  now  lieutenant  (junior 
grade).  See  note  to  section  1362,  Revised 
htatutes. 

[1878,  May  4.  Sale  of  charts.]  That  all  charts  hereafter  furnished  to 
mariners  or  others  not  in  the  government  service  shall  be  paid  for  at  the  cost 
price  of  paper  and  printing  paid  by  the  government. — (20  Stat.,  51,  chap.  91.) 

See  sections  432  and  433,  Re\ised  Statutes,  and       This  provision  was  repeated  in  act  of  Febru- 


See  notes  to  sections  1367  and  1556.  Revised 
Statutes. 


notes  thereto. 


ary  14,  1879,  chapter  68  (20  Stat.,  286). 


[1878,  June  14,  sec.  4.  Claims  under  exhausted  appropriations,  report  to 
Congress.]  That  so  much  of  section  five  of  tlie  act  approved  June  twentieth, 
eighteen  hundred  and  seventy-four,  as  directs  the  Secretary  of  the  Treasury 
at  the  beginning  of  each  session  to  report  to  Congress  with  his  annual  estimates 
any  balances  of  appropriations  for  specific  objects  affected  by  said  section  that 
may  need  to  be  reappropriated,  be,  and  hereby  is,  repealed.  And  it  shall  be 
the  duty  of  the  several  accounting-officers  of  the  Treasury  to  continue  to 
receive,  examine,  and  consider  the  justice  and  validity  of  all  claims  under 
appropriations  the  balances  of  which  have  been  exhausted  or  carried  to  the 
surplus  fund  under  the  provisions  of  said  section  tliat  may  be  brought  before 
them  within  a  period  of  five  years.  And  the  Secretary  of  the  Treasury  shall 
report  the  amount  due  each  claimant,  at  the  commencement  of  each  session, 
to  the  Speaker  of  the  House  of  Representatives,  who  shall  lay  the  same  before 
Congress  for  consideration:  Provided,  That  nothing  in  this  act  shall  be  con- 
strued to  authorize  the  re-examination  and  payment  of  any  claim  or  account 
which  has  been  once  examined  and  rejected,  unless  reopened  in  accordance 
with  existing  law. — (20  Stat.,  130,  chap.  191.) 

See  acts  of  June  20,  1874,  section  5  (18  Stat..  110),  and  July  7.  1884  (23  Stat.,  254),     See  also 
section  236,  Revised  Statutes,  and  note  thoreto. 

[1878,  June  14.  Purchase  of  material  for  steam  boilers.]  That  on  and 
after  the  passage  of  this  act,  the  Secretary  of  the  Navy  be,  and  he  is  hereby 
authorized  to  purchase  at  the  lowest  market  price,  such  plate  iron  and  other 
material  as  may  enter  into  the  construction  of  steam  boilers  for  the  Navy,  with- 
out advertising  for  bids  to  furnish  the  same:  Provided,  That  he  shall  cause  to 

1182 


Pt.  3.  STATUTES  AT  LARGE.  June  19,  1878. 

be  sent  to  tbo  principal  dealers  and  manufacturers  of  iron  and  such  other 
materials  as  may  be  required  specifications  of  the  quality  description  and 
character  of  such  iron  and  materials  so  required:  And  provided  further,  That 
such  plate  iron  and  materials  shall  be  subjected  to  the  same  tests  and  inspection 
as  now  provided  for  and  which  inspection  and  tests  shall  be  made  publicly  and 
in  presence  of  such  bidders  or  their  authorized  agents  as  may  choose  to  attend 
at  the  making  thereof.— (20  Stat.,  253-254,  Res.  No.  30.) 


the  purpose  of  testing  the  strength  and 
vahie  of  iron,  steel,  and  other  metals,  for 
constrtictive  and  mechanical  purposes. 
Tests  for  steam] )oat  boiler  plates  in  such  manner 
as  prescri1)ed  by  the  Board  of  Supervising 
Inspectors  and  approved  by  the  Secretary 
of  the  Treasury,  were  provided  for  by 
section  4430,  Revised  Statutes. 


See  sections  3718  and  3721,  Re^dsed  Statutes, 
and  notes  thereto. 

The  reference  to  "this  act"  in  the  above  resolu- 
tion was  evidently  intended  to  be  "this 
resolution." 

ByactofMarchS,  1875,  section  4  (18  Stat.,  399), 
provision  was  made  for  the  appointment  of 
a  board,  consisting  of  officers  of  the  Army 
and  Na\'y,  and  three  civilian  experts,  for 

[1878,  June  18.  Examinations  for  promotion ;  facts  once  determined.]  That 
hereafter  in  the  examination  of  officers  in  the  Navy  for  promotion  no  fact 
which  occurred  prior  to  the  last  examination  of  the  candidate  whereby  he  was 
promoted,  which  has  been  enquired  into  and  decided  upon,  shall  be  again 
enquired  into,  but  such  previous  examination,  if  approved,  shall  be  conclusive, 
unless  such  fact  continuing  shows  the  unfitness  of  the  officer  to  perform  all 
his  duties  at  sea. 

Sec.  2.  The  President  of  the  United  States  may  in  cases  wherein  the  rule 
herein  prescribed  has  been  violated  order  and  direct  the  re-examination  of  the 
same.— (20  Stat.,  165-166,  chap.  267.) 

See  note  to  section  1499,  Revised  Statutes. 

[1878,  June  19.  Expenditures  in  naval  service;  report  of.]  That  from  and 
after  the  passage  of  this  act,  it  shall  be  the  duty  of  the  Secretary  of  the  Treasury 
to  transmit  to  Congress,  annually,  a  tabular  statement  showing  in  detail  the 
receipts  and  expenditures  in  the  Naval  service  under  each  appropriation,  as 
made  up  and  determined  by  the  proper  officers  of  the  Treasury  Department, 
upon  the  accounts  of  disbursing-officers  rendered  for  settlement. 

Sec.  2.  There  shall  be  appended  to  this  statement  an  account  of  balances 
in  the  hands  of  disbursing  agents  at  the  close  of  each  fiscal  year,  and  a  report 
of  any  amounts  lost  or  unaccounted  for  by  voucher. —  (20  Stat.,  167,  chap.  311.) 

See  note  to  section  429,  Revised  Statutes. 

[1878,  June  19.  "General  account  of  advances;"  use  of  "Pay  of  the  Navy."] 
That  the  Secretary  of  the  Navy  be,  and  he  is  hereby,  authorized  to  issue  his 
requisitions  for  advances  to  disbursing  officers  and  agents  of  the  Navy  under  a 
"General  account  of  advances",  not  to  exceed  the  total  appropriation  for  the 
Navy,  the  amount  so  advanced  to  be  exclusively  used  to  pay  current  obliga- 
tions upon  proper  vouchers  and  that  "Pay  of  the  Navy"  shall  hereafter  be 
used  only  for  its  legitimate  purpose,  as  provided  by  law. 

Sec.  2.  That  the  amount  so  advanced  be  charged  to  the  proper  appro- 
priations, and  returned  to  "General  account  of  advances"  by  pay  and  counter 
warrant;  the  said  charge,  however,  to  particular  appropriations,  shall  be 
limited  to  the  amount  appropriated  to  each. 


1183 


Feb.  26,  1879.  rt.  3.  STATUTES  AT  LARGE. 

Sec.  3.  That  the  Fourth  Auditor  shall  declare  the  sums  due  from  the  several 
special  a})propriations  upon  complete  voucliers,  as  heretofore,  according  to 
law;  and  lie  shall  adjust  the  said  liabilities  with  the  "General  account  of 
advances."— (20  Stat.,  167-168,  chap.  312.) 

See  note  to  section  276,  Revised  Statutes;  and  see  section  3678.  Revised  Statutes. 

[1878,  June  20.  Rates  of  advertising.]  That  hereafter  all  advertisements, 
notices,  proposals  for  contracts,  and  all  forms  of  advertising  required  by  law 
for  the  several  departments  of  the  government  may  be  paid  for  at  a  price  not 
to  exceed  the  commercial  rates  charged  to  private  individuals,  with  the  usual 
discounts;  such  rates  to  be  ascertained  from  sworn  statements  to  be  furnished 
by  the  proprietors  or  publishers  of  the  newspapers  proposing  so  to  advertise: 
*  *  *  but  the  heads  of  the  several  departments  may  secure  lower  terms 
at  special  rates  whenever  the  public  interest  requires  it. —  (20  Stat.,  216,  chap 
359.) 


See  sections  3826  and  3828,  Revised  Statutes; 
and  see  act  of  Januarj'  21,  1881  (21  Stat., 
317). 


The  clause  omitted  from  tliis  enactment  was  a 
temporaiy  pro\ision  relating  to  past  trans- 
actions. 


[1879,  Feb.  14.  Sale  of  charts  to  persons  not  in  government  service.]  That 
all  charts  hereafter  furnished  to  mariners  or  others  not  in  the  government 
service  shall  be  paid  for  at  the  cost  price  of  paper  and  printing  paid  by  the  govern- 
ment.—(20  Stat.,  286,  chap.  68.) 


Similar  provision  was  contained  in  act  of  May 

4,  1878  (20  Stat.,  51). 


See  sections  432  and  433,  Revised  Statutes, 
and  notes  thereto,  as  to  sale  of  charts  to 
na\dgators;  see  also  act  of  January  12,  1895, 
section  77  (28  Stat.,  621). 

[1879,  Feb.  14.  "  Small-stores  fund."]  That  from  and  after  the  first  day 
of  April,  eighteen  hundred  and  seventy-nine,  the  value  of  issues  of  small-stores 
shall  be  credited  to  a  fund  to  be  designated  as  the  ''small-stores  fund",  in  the 
same  manner  as  the  value  of  the  issues  of  clothing  is  now  credited  to  the 
"clothing  fund";  the  resources  of  the  fund  to  be  used  hereafter  in  the  purchase 
of  supplies  of  small-stores  for  issue. — (20  Stat.,  288,  chap.  68.) 

See  act  June  30,  1890  (26  Stat.,  197),  creating       See  note  to  section  3089,  Revised  Statutes. 
the  "clothing  and  small-stores  fund"  in 
the  Navy. 

[1879,  Feb.  16,  sec.  2.     Acting  assistant  surgeons.]     That  from  and  after 

the  passage  of  this  act  the  Secretary  of  the  Navy  shall  not  appoint  acting 

assistant  surgeons  for  temporary  service,  as  authorized  by  section  fourteen 

hundred  and  eleven.  Revised  Statutes,  except  in  case  of  war. — (20  Stat.,  295, 

chap.  83.) 

See  section  1411,  Revised  Statutes,  and  note  thereto. 

[1879,  Feb.  26.  Details  to  educational  institutions.]  That  for  the  purpose 
of  promoting  a  knowledge  of  steam-engineering  and  iron-ship  building  among 
the  young  men  of  the  United  States,  the  President  may,  upon  the  application 
of  an  established  scientific  school  or  college  within  the  United  States,  detail  an 
officer  from  the  Engineer  Corps  of  the  Navy  as  professor  in  such  school  or 
college:  Provided,  That  the  number  of  officers  so  detailed  shall  not  at  any 
time  exceed  twenty-five,  and  such  details  shall  be  governed  by  rules  to  be 

1184 


PL  3.  STATUTES  AT  LARGE. 


Mar.  3,   1879. 


prescribed  from  time  to  time  by  the  President :  Aiid  provided  further,  That 
such  details  may  be  withheld  or  withdrawn  whenever,  in  the  judgment  of  the 
President,  the  interests  of  the  public  service  shall  so  require. — (20  Stat.,  322- 
323,  chap.  105.) 


See  note  to  section  1225,  Revised  Statutes. 
The  Engineer  Corps  of  the  Navy  was  abolished, 
and  the  personnel  thereof  (on  the  active 


list)  transferred  to  the  line  of  the  Naw  by 
act  of  March  3,  1899  (30  Stat.,  1004).  'See 
note  to  section  1390,  Revised  Statutes. 


See  sections  1176-1178,  Revised  Statutes,  and 
notes  thereto. 


[1879,  Mar.  3.  Trusses  for  soldiers  and  sailors.]  That  section  one  of  the 
act  entitled  ''An  act  to  provide  for  furnishing  trusses  to  disabled  soldiers", 
approved  May  twenty-eighth,  eighteen  hundred  and  seventy  two,  be,  and  the 
same  is  hereby,  amended  so  that  said  section  shall  read  as  follows : 

That  every  soldier  of  the  Union  Army,  or  petty-officer,  seaman,  or  marine 
in  the  naval  service,  who  was  ruptured  while  in  the  line  of  duty  during  the  late 
war  for  the  suppression  of  the  rebellion,  or  who  shall  be  so  ruptured  thereafter 
in  any  war,  shall  be  entitled  to  receive  a  single  or  double  truss  of  such  style  as 
may  be  designated  by  the  Surgeon-General  of  the  United  States  Army  as  best 
suited  for  such  disability;  and  whenever  the  said  truss  or  trusses  so  furnished 
shall  become  useless  from  wear,  destruction,  or  loss,  such  soldier,  petty-officer, 
seaman,  or  marine  shall  be  supplied  with  another  truss  on  making  a  like  applica- 
tion as  provided  for  in  section  two  of  the  original  act  of  which  this  is  an  amend- 
ment: Provided,  That  such  application  shall  not  be  made  more  than  once  in 
two  years  and  six  months:  And  'provided further,  That  sections  two  and  three  of 
the  said  act  of  May  twenty-eighth,  eighteen  hundred  and  seventy-two,  shall  be 
construed  so  as  to  apply  to  petty-officers,  seamen,  and  marines  of  the  naval 
service,  as  well  as  to  soldiers  of  the  Army. —  (20  Stat.,  353,  chap.  173.) 

Section  one  of  the  act  of  May  28,  1872,  referred 

to  above,  was  incorporated  in  the  Re\'ised 

Statutes  as  section  117G. 
Sections  2  and  3  of  the  act  of  IMay  28,  1872, 

referred  to  above,  were  incorporated  in  the 

Revised  Statutes  as  sections  1177  and  1178. 

[1879,  Mar.  3,  sec.  29.  Penalty  envelopes,  authority  to  use;  endorsements 
on;  registered  mail.]  The  provisions  of  the  fifth  and  sixth  section  of  the  act 
entitled  ''An  act  establishing  post-routes,  and  for  other  purposes"  approved 
March  third,  eighteen  hundred  and  seventy-seven,  for  the  transmission  of  offi- 
cial mail-matter,  be,  and  they  are  hereby,  extended  to  all  officers  of  the  United 
States  Government,  not  including  members  of  Congress,  the  envelopes  of  such 
matter  in  all  cases  to  bear  appropriate  indorsements  containing  the  proper 
designation  of  the  office  from  which  or  officer  from  whom  the  same  is  trans- 
mitted, with  a  statement  of  the  penalty  for  their  misuse.  And  the  provisions 
of  said  fifth  and  sixth  sections  are  hereby  likewise  extended  and  made  appli- 
cable to  all  official  mail-matter  of  the  Smithsonian  Institution :  Provided,  That 
any  Department  or  officer  authorized  to  use  the  penalty  envelopes  may  inclose 
them  with  return  address  to  any  person  or  persons  from  or  through  whom 
official  information  is  desired,  the  same  to  be  used  only  to  cover  such 
official  information,  and  indorsements  relating  thereto:  Provided  further, 
That  any  letter  or  packet  to  be  registered  by  either  of  the  Executive  Depart- 
ments, or  Bureaus  thereof,  or  by  the  Agricultural  Department,  or  by  the 
Public  Printer,  may  be  registered  without  the  payment  of  any  registry  fee; 


1185 


June  8,  1880. 


Pt.  S.  STATUTES  AT  LARGE. 


and  any  part-paid  letter  or  packet  addressed  to  either  of  said  Departments  or 
ikireaus  may  be  delivered  free;  but  where  there  is  good  reason  to  believe  the 
omission  to  prepay  the  full  postage  thereon  was  intentional,  such  letter  or 
packet  shall  be  returned  to  the  sender:  Provided  further,  That  this  act  shall  not 
extend  or  apply  to  pension  agents  or  other  officers  who  receive  a  fixed  allowance 
as  compensation  for  their  services,  including  expenses  of  postages.  And  sec- 
tion thirty-nine  hundred  and  fifteen  of  the  Revised  Statutes  of  the  United 
States,  so  far  as  the  same  relates  to  stamps  and  stamped  envelopes  for  official 
purposes,  is  hereby  repealed. — (20  Stat.,  362,  chap.  180;  23  Stat.,  158,  chap.  234.) 

This  section  was  expressly  amended  and  re-  also  notes  to  sections  388  and  398,  Revised 

enacted  to  read  as  above  by  act  of  July  5,  Statutes,  and  Criminal  Code,  act  of  March 

1884,  section  3  (23  Stat.,  158).  4,  1909,  section  227  (35  Stat..  1134). 

See  act  of  March  3,  1877,  sections  5  and  6,  (19  See  act  of  March  3,  1883,  section  2  (22  Stat., 

Stat.,    335-33G),    and    notes    thereto;  see  563),  and  note  thereto. 

[1879,  June  14.  Vessels  for  quarantine.]  That  the  Secretary  of  the  Navy  be, 
and  he  is  hereby,  authorized,  in  his  discretion,  at  the  request  of  the  National 
Board  of  Health,  to  place  gratuitously,  at  the  disposal  of  the  commissioners  of 
quarantine,  or  the  proper  authorities  at  any  of  the  ports  of  the  United  States, 
to  be  used  by  them  temporarily  for  quarantine  purposes,  such  vessels  or  hulks 
belonging  to  the  United  States  as  are  not  required  for  other  uses  of  the  national 
government,  subject  to  such  restrictions  and  regulations  as  the  said  Secretary 
may  deem  necessary  to  impose  for  the  preservation  thereof. —  (21  Stat.,  50, 
Res.  No.  6.) 


tional  quarantine  powers  and  imposing 
additional  duties  upon  the  Marine  Hospital 
Service,"  now  "Public  Health  Service." 


The  act  of  March  3,  1879  (20  Stat.,  484),  which 
established  the  "National  Board  of  Health," 
was  repealed  by  act  of  February  15,  1893, 
section  9  (27  Stat.,  452),  "granting  addi- 

[1880,  May  31.  Vessels  of  Fish  Commission.]  And  the  Secretary  of  the 
Navy  is  hereby  directed  to  place  the  vessels  of  the  United  States  Fish  Commis- 
sion on  the  same  footing  with  the  Navy  Department  as  those  of  the  United 
States  Coast  and  Geodetic  Survey. —  (21  Stat.,  151,  chap.  113.) 


See  sections  4397,  4684-4688,  Revised  Statutes. 

By  act  of  July  7,  1884  (23  Stat.,  239),  it  was 
enacted  that  the  above  provision  "shall 
be  construed  as  having  given  to  the  United 
States  Commissioner  of  Fish  and  Fisheries, 
to  July  first,  eighteen  hundred  and  eighty- 
four,  but  no  longer,  the  same  authority  m 
regard  to  allowances  for  subsistence  to 
officers  and  men  of  the  Navy  serving  in  the 
operations  of  the  United  States  Commis- 


sioner of  Fish  and  Fisheries  as  is  given  to 
the  Secretary  of  the  Treasury  in  regard  to 
service  of  officers  and  men  of  the  Navy  in 
the  Coast  Survey  by  section  forty-six  hun- 
dred and  eighty-eight  of  the  ReA^sed 
Statutes  of  the  United  States." 
As  to  the  authorized  number  of  enlisted  men 
in  the  Navy,  including  those  serving  in 
the  Fish  Commission,  see  laws  noted  under 
section  1417,  Revised  Statutes. 


[1880,  June  8.  Judge  Advocate  General.]  That  the  President  of  the  United 
States  be,  and  he  is  hereby,  authorized  to  appoint,  for  the  term  of  four  years, 
by  and  with  the  advice  and  consent  of  the  Senate,  from  the  officers  of  the  Navy 
or  the  Marine  Corps,  a  judge-advocate-general  of  the  Navy,  with  the  rank,  pay, 
and  allowances  of  a  captain  in  the  Navy  or  a  colonel  in  the  Marine  Corps,  as 
the  case  may  be.  And  the  office  of  the  said  judge-advocate-general  shall  be 
in  the  Navy  Department,  where  he  shall,  under  the  direction  of  the  Secretary 
of  the  Navy,  receive,  revise,  and  have  recorded  the  proceedings  of  all  courts- 
martial,  courts  of  inquiry,  and  boards  for  the  examination  of  officers  for  retire- 
ment and  promotion  in  the  naval  service,  and  perform  such  other  duties  as 


1186 


Pt.  3.  STATUTES  AT  LARGE.  Aug.  5,   1882. 

have  heretofore  been  performed  by  the  sohcitor  and  naval  judge-advocate- 
general. —  (21  Stat.,  164,  chap.  129.) 


It  was  again  amended  by  act  of  July  1,  1918 
(40  Stat.,  717),  under  wluch  the  Judge 
Advocate  General  is  to  have  the  same  rank, 
pay  and  allowances  as  the  Judge  Advocate 
General  of  the  Army. 

As  to  the  duties  of  the  Judge  Advocate  General, 
see  act  of  February  16,  1909,  section  6  (35 
Stat.,  621),  and  section  1624,  Revised 
Statutes,  article  53,  under  "Action  of  the 
Judge  Advocate  General." 

See  note  to  sections  349,  419,  and  421,  Revised 
Statutes. 


This  act  was  amended  by  act  of  June  5,  1896 
(29  Stat.,  251),  by  inserting  therein,  in 
lieu  of  the  words,  "with  the  rank,  pay, 
and  allowances  of  a  captain  in  the  Na\^,  or 
a  colonel  in  the  Marine  Corps,  as  the  case 
may  be."  the  words  "with  the  rank  and 
highest  pay  of  a  captain  fin]  the  Navy,  or 
the  rank,  pay,  and  allowances  of  a  colonel 
in  the  Marine  Corps,  as  the  case  may  be," 
with  a  proviso  that  said  amendment  shall 
take  effect  from  July  19,  1892,  ' '  the  date  on 
which  the  present  incumbent  entered  on 
duty." 

[1881,  Jan.  21.  Advertising  in  District  of  Columbia.]  That  all  advertising 
required  by  existing  laws  to  be  done  in  the  District  of  Columbia  by  any  of  the 
departments  of  the  government  shall  be  given  to  one  daily  and  cne  weekly 
newspaper  of  each  of  the  two  principal  political  parties  and  to  one  daily  and 
one  weekly  neutral  newspaper:  Provided,  That  the  rates  of  compensation  for 
such  service  shall  in  no  case  exceed  the  regular  commercial  rate  of  the  news- 
papers selected;  nor  shall  any  advertisement  be  paid  for  unless  published  in 
accordance  with  section  thirty-eight  hundred  and  twenty-eight  of  the  Revised 
Statutes. 

Sec.  2.  All  laws  or  parts  of  laws  inconsistent  herewith  are  hereby  repealed. — 
(21  Stat.,  317,  chap.  25.) 

See  sections  3826  and  3828,  Revised  Statutes,  and  act  of  June  20,  1878  (20  Stat.,  216). 

[1881,  Jan.  31,  sec.  2.  Foreign  decorations,  etc.,  not  to  be  worn.]  That  no 
decoration,  or  other  thing,  the  acceptance  of  which  is  authorized  by  this  act, 
and  no  decoration  heretofore  accepted,  or  which  may  hereafter  be  accepted, 
by  consent  of  Congress,  by  an}-  officer  of  the  United  States,  from  any  foreign 
government,  shall  be  publicly  shown  or  exposed  upon  the  nerson  of  the  officer 
so  receiving  the  same. —  (21  Stat.,  604,  chap.  32.) 

[1881,  Jan.  31,  sec.  3.  Foreign  decorations,  etc.,  tendered  through  State 
Department.]  That  hereafter  any  present,  decoration,  or  other  thing,  which 
shall  be  conferred  or  presented  by  any  foreign  government  to  any  officer  of 
the  United  States,  civil,  naval,  or  military,  shall  be  tendered  through  the 
Department  of  State,  and  not  to  the  individual  in  person,  but  such  present, 
decoration,  or  other  thing  shall  not  be  delivered  by  the  Department  of  State 
unless  so  authorized  by  act  of  Congress. —  (21  Stat.,  604,  chap.  32.) 


See  Constitution,  Article  I,  section  9,  clause  8, 
and  note  thereto;  see  also,  act  of  July  9, 
1918  (40  Stat.,  872). 


The  first  section  of  this  act  authorized  certain 
officers,  designated  by  name,  to  accept 
particular  decorations  and  presents  from 
foreign  governments. 

[1882,  Aug.  5.  Rent  of  buildings.  District  of  Columbia.]  And  where  build- 
ings are  rented  for  public  use  in  the  District  of  Columbia,  the  executive  depart- 
ments are  authorized,  whenever  it  shall  be  advantageous  to  the  public  interest, 
to  rent  others  in  their  stead:  Provided,  That  no  increase  in  the  number  of 
buildings  now  in  use,  nor  in  the  amounts  paid  for  rents,  shall  result  therefrom. — 
(22  Stat.,  241,  chap.  389.) 

See  acts  of  March  3,  1877  (19  Stat.,  370),  and  March  3,  1883  (22  Stat.,  552);  and  see  section 
3679,  Revised  Statutes. 

1187 


Aug.  5,   1882.  Pt.  S.  STATUTES  AT  LARGE. 

[1882,  Aug.  6,  sec.  4.  Number  and  pay  of  employees  limited;  use  of  con- 
tingent appropriations ;  details  from  outside  of  District  of  Columbia.]  That 
no  civil  officer,  clerk,  draughtsman,  copyist,  messenger,  assistant  messenger, 
mechanic,  watchman,  laborer,  or  other  employee  shall  after  the  first  day  of 
October  next  be  employed  in  any  of  the  executive  departments,  or  subordinate 
bureaus  or  offices  thereof  at  the  seat  of  government,  except  only  at  such  rates 
and  in  such  numbers,  respectively,  as  may  be  specifically  appropriated  for  by 
Congress  for  such  clerical  and  other  personal  services  for  each  fiscal  year;  and 
no  civil  officer,  clerk,  draughtsman,  copyist,  messenger,  assistant  messenger, 
mechanic,  watchman,  laborer,  or  other  employee  shall  hereafter  be  employed 
at  the  seat  of  government  in  any  executive  department  or  subordinate  bureau 
or  office  thereof  or  be  paid  from  any  appropriation  made  for  contingent  ex- 
penses, or  for  any  specific  or  general  purpose,  unless  such  employment  is  au- 
thorized and  payment  therefor  specifically  provided  in  the  law  granting  the 
appropriation,  and  then  only  for  services  actually  rendered  in  connection  with 
and  for  the  purposes  of  the  appropriation  from  which  payment  is  made,  and 
at  the  rate  of  compensation  usual  and  proper  for  such  services,  and  after  the 
first  day  of  October  next  section  one  hundred  and  seventy-two  of  the  Revised 
Statutes,  and  all  other  laws  and  parts  of  laws  inconsistent  with  the  provisions 
of  tliis  act,  and  all  laws  and  parts  of  laws  authorizing  the  employment  of  offi- 
cers, clerks,  draughtsmen,  copyists,  messengers,  assistant  messengers,  mechanics, 
watchmen,  laborers,  or  other  employees  at  a  different  rate  of  pay  or  in  excess 
of  the  numbers  authorized  by  appropriations  made  by  Congress,  be  and  they 
are  hereby,  repealed;  and  thereafter  all  details  of  civil  officers,  clerks,  or  other 
subordinate  employees  from  places  outside  of  the  District  of  Columbia  for 
duty  within  the  District  of  Columbia,  except  temporary  details  for  duty  con- 
nected with  their  respective  offices,  be,  and  are  hereby,  prohibited;  and  there- 
after all  moneys  accruing  from  lapsed  salaries,  or  from  unused  appropriations 
for  salaries,  shall  be  covered  into  the  Treasury:  *  *  *  ^^^  nothmg  herein 
shall  be  construed  to  repeal  or  modify  section  one  hundred  and  sixty-six  of 
the  Revised  Statutes  of  the  United  States.— (22  Stat.,  255-256,  chap.  389.) 


The  portion  omitted  from  this  section  con- 
sisted of  temporary  provisos. 

See  sections  166,  169,  172,  416,  and  3682, 
Revised  Statutes;  see  also  acts  of  August 
15,  1876,  section  5  (19  Stat.,  169),  and  May 
30,  1908  (35  Stat.,  505). 


Punishment  for  violation  of  this  section  was 
prescribed  by  act  of  August  23,  1912,  sec- 
tion 5  (37  Stat.,_414). 

Restrictions  on  details  to  departments  from  out- 
side of  the  District  are  contained  in  act  of 
June  22,  1906,  section  6  (34  Stat.,  449). 


[1882,  Aug.  5.  Naval  cadets;  appointed  on  graduation;  discharge  of  sur- 
plus graduates;  special  course  of  training.]  That  hereafter  there  shall  be  no 
appointments  of  cadct-midsliipmen  or  cadet-engineers  at  the  Naval  Academy, 
but  in  lieu  thereof  naval  cadets  shall  be  appointed  from  each  Congressional 
district  and  at  large,  as  now  provided  by  law  for  cadet-midshipmen,  and  all 
the  undergraduates  at  the  Naval  Academy  shall  hereafter  be  designated  and 
called  ''naval  cadets;"  and  from  those  who  successfully  complete  the  six 
years'  course  appointments  shall  hereafter  be  made  as  it  is  necessary  to  fill 
vacancies  in  the  lower  grades  of  the  line  and  Engineer  Corps  of  the  Navy  and 
of  the  Marine  Corps:  *  *  *  ^nd  if  there  be  a  surplus  of  graduates,  those 
who  do  not  receive  such  appointment  shall  be  given  a  certificate  of  graduation, 
an  honorable  discharge,  and  one  year's  sea-pay,  as  now  provided  by  law  for 

« 

1188 


Pt.  S.  STATUTES  AT  LARGE.  Aug.  5,  1882. 

cadet-midshipmen;  and  so  much  of  section  fifteen  hundred  and  twenty-one 
of  the  Revised  Statutes  as  is  inconsistent  herewith  is  hereby  repealed. 

That  any  cadet  whose  position  in  his  class  entitles  him  to  be  retained  in 
the  service  may,  upon  his  own  application,  be  honorably  discharged  at  the 
end  of  four  years'  course  at  the  Naval  Academy,  with  a  proper  certificate  of 
graduation. 

That  the  Secretary  of  the  Navy  may  prescribe  a  special  course  of  study 
and  training  at  home  or  abroad  for  any  naval  cadet. —  (22  Stat.,  285,  chap.  391.) 


As  to  academic  course,  see  section  1520,  Re- 
vised Statutes,  and  note  thereto. 

As  to  discharge  of  surplus  graduates,  see  note  to 
section  1521,  Revised  Statutes. 


See    generally    sections    1512-1528,     Revised 

Statutes,  and  notes  thereto. 
As  to  change  in  designation  of  naval  cadets,  see 

note  to  section  1512,  Revised  Statutes. 
As  to  appointments  on  graduation,  see  note  to 

section  1521,  Revised  Statutes. 

[1882,  Aug.  5.  No  promotion  on  retired  list.]  Hereafter  there  shall  be  no 
promotion  or  increase  of  pay  in  the  retired  list  of  the  Navy  but  the  rank  and 
pay  of  officers  on  the  retired  list  shall  be  the  same  that  they  are  when  such 
officers  shall  be  retired.— (22  Stat.,  286,  chap.  391.) 

See  notes  to  sections  1461,  1481,  1588,  and  1591,  Revised  Statutes. 

[1882,  Aug.  5.  Officers  morally  unfit  for  promotion.]  That  whenever  on  an 
inquiry  had  pursuant  to  law,  concerning  the  fitness  of  an  officer  of  the  Navy  for 
promotion,  it  shall  appear  that  such  officer  is  unfit  to  perform  at  sea  the  duties 
of  the  place  to  which  it  is  proposed  to  promote  him,  by  reason  of  drunkenness, 
or  from  any  cause  arising  from  his  own  misconduct,  and  having  been  informed 
of  and  heard  upon  the  charges  against  him,  he  shall  not  be  placed  on  the  retired- 
list  of  the  Navy,  and  if  the  finding  of  the  board  be  approved  by  the  President, 
he  shall  be  discharged  with  not  more  than  one  year's  pay. —  (22  Stat.,  286, 
chap.  391.) 

See  note  to  section  1456,  Revised  Statutes. 

[1882,  Aug.  5.  Expenses  of  officers  traveling  abroad.]  And  officers  of  the 
Navy  traveling  abroad  under  orders  hereafter  issued  shall  travel  by  the  most 
du"ect  route,  the  occasion  and  necessity  for  such  order  to  be  certified  by  the 
officer  issuing  the  same;  and  shall  receive,  in  lieu  of  the  mileage  now  allowed 
by  law,  only  their  actual  and  reasonal)le  expenses,  certified  under  their  own 
signatures  and  approved  by  the  Secretary  of  the  Navy. —  (22  Stat.,  286-287, 
chap.  391.) 

See  note  to  section  1566,  Revised  Statutes. 

[1882,  Aug.  5.  Navy  yard  at  Washington;  use  as  a  manufacturing  yard.] 
That  the  navy-yard  at  Wasliington,  District  of  Columbia,  may,  at  the  discre- 
tion of  the  Secretary  of  the  Navy,  be  maintained  as  a  manufacturing  yard  for 
the  Bureaus  of  Equipment  and  Recruiting  and  Ordnance,  and  that  work  may 
be  continued  in  the  rope-walk  in  the  Boston  navy-yard:  And  'provided further, 
That  nothing  herein  shall  be  held  to  interfere  with  the  permanent  improvement 
of  any  navy-yard  as  now  authorized  by  law,  or  the  expenditure  for  such  pur- 
pose of  any  money  appropriated  by  Congress  therefor. — (22  Stat.,  289,  chap. 
391.) 


See  note  to  section  419,  Revised  Statutes,  as  to 
changes  in  designation  and  duties  of  bu- 
reaus in  the  Navy  Department. 


ments  as  to  suspension  of  work  at  navy- 
yards  during  the  then  current  fiscal  year, 
and   the  closing  of  yards  if  necessary   to 


The   above   were  provisos   following  require-  prevent  deficiencies  during  said  year. 

1189 


Mar.  3,   1883.  Pi.  3.  STATUTES  AT  LARGE. 

[1882,  Aug.  5,  sec.  2.  Old  material  to  be  used;  if  not  useful,  to  be  sold; 
annual  report  to  Congress.]  And  no  old  material  of  the  Navy  shall  hereafter 
be  sold  or  exchanged  by  the  Secretary  of  the  Navy,  or  by  any  officer  of  the 
Navy,  which  can  be  profitably  used  by  reworking  or  otherwise  in  the  construc- 
tion or  repair  of  vessels,  their  machinery,  armor,  armament,  or  equipment; 
but  the  same  shall  be  stored  and  preserved  for  future  use.  And  when  any 
such  old  material  can  not  be  profitably  used  as  aforesaid,  the  same  shall  be 
appraised  and  sold  at  public  auction  after  public  notice  and  advertisement  shall 
have  been  given  according  to  law  under  such  rules  and  regulations  and  in  such 
manner  as  the  said  Secretary  may  direct.  The  net  proceeds  arising  from  the 
sales  of  such  old  materials  shall  be  paid  into  the  Treasury.  It  shall  be  the  duty 
of  the  Secretary  of  the  Navy  annually  to  report  in  detail  to  Congress,  in  his 
annual  report,  the  proceeds  of  all  sales  of  materials,  stores,  and  supplies,  made 
under  the  provisions  of  this  act,  and  the  expenses  attending  such  sales. —  (22 
Stat.,  296,  chap.  391.) 

See  sections  1541,  3618,  and  3692,  Revised  Statutes;  see  also,  acts  of  June  30,  1890  (26  Stat., 
194),  and  March  2,  1905  (33  Stat.,  841). 

[1882,  Aug.  5,  sec.  2.  Examination  of  vessels;  names  stricken  from  Regis- 
ter ;  report  to  Congress.]  It  shall  also  be  the  duty  of  the  Secretary  of  the  Navy, 
as  soon  as  may  be  after  the  passage  of  this  act,  to  cause  to  be  examined  by 
competent  boards  of  officers  of  the  Navy,  to  be  designated  by  him  for  that  duty, 
all  vessels  belonging  to  the  Navy  not  in  actual  service  at  sea,  and  vessels  at 
sea  as  soon  as  practicable  after  they  shall  return  to  the  United  States,  and 
hereafter  all  vessels  on  their  return  from  foreign  stations,  and  all  vessels  in  the 
United  States  as  often  as  once  in  three  years,  when  practicable;  and  said  boards 
shall  ascertain  and  report  to  the  Secretary  of  the  Navy,  in  writing,  which  of 
said  vessels  are  unfit  for  further  service,  or,  if  the  same  are  unfinished  in  any 
navy-yard,  those  which  can  not  be  finished  without  great  and  disproportionate 
expense,  and  shall  in  such  report  state  fully  the  grounds  and  reasons  for  their 
opinion.  And  it  shall  be  the  duty  of  the  Secretary  of  the  Navy,  if  he  shall 
concur  in  opinion  with  said  report,  to  strike  the  name  of  such  vessel  or  vessels 
from  the  Navy  Register  and  report  the  same  to  Congress. —  (22  Stat.,  296-297, 
chap.  391.) 

See  act  of  March  3,  1883,  section  5  (22  Stat., 
599-600),  as  to  sale  of  vessels  stricken  from 
the  Navy  Register. 

[1883,  Mar.  3.  Masters  to  be  junior  grade  of  lieutenants.]  For  the  pay  of 
*  *  *  one  hundred  masters,  the  title  of  which  grade  is  hereby  changed  to 
that  of  lieutenants,  and  the  masters  now  on  the  list  shall  constitute  a  junior 
grade  of,  and  be  commissioned  as,  lieutenants,  having  the  same  rank  and  pay 
as  now  provided  by  law  for  masters,  but  promotion  to  and  from  said  grade  shall 
be  by  examination  as  provided  by  law  for  promotion  to  and  from  the  grade  of 
master.— (22  Stat.,  472,  chap.  97.) 

See  note  to  section  1362,  Revised  Statutes. 

[1883,  Mar.  3.  Midshipmen  to  be  junior  grade  of  ensigns.]  Ninety-one 
midshipmen,  the  title  of  which  grade  is  hereby  changed  to  that  of  ensign,  and 
the  midshipman  now  on  the  list  shall  constitute  a  junior  grade  of,  and  be 

1190 


See  also  section  1541,  Revised  Statutes,  and 
note  thereto. 


Pt.  3.  STATUTES  AT  LARGE. 


Mar.  3,   18«3. 


commissioned  as,  ensigns,  having  the  same  rank  and  pay  as  now  provided  by 
law  for  midshipmen,  but  promotions  to  and  from  said  grade  shall  be  under  the 
same  regulations  and  requirements  as  now  provided  by  law  for  promotion  to 
and  from  the  grade  of  midshipmen. — (22  Stat.,  472,  chap.  97.) 

See  note  to  section  1362,  Revised  Statutes,  and  see  act  of  June  26,  1884  (23  Stat.,  60). 

[1883,  Mar.  3.  Credit  for  all  service  in  Army  and  Navy.]  And  all  ofFicer.s 
of  the  Navy  shall  be  credited  with  the  actual  time  they  may  have  served  as 
officers  or  enlisted  men  in  the  regular  or  volunteer  Army  or  Navy,  or  both, 
and  shall  receive  all  the  benefits  of  such  actual  service  in  all  respects  in  the 
same  manner  as  if  all  said  service  had  been  continuous  and  in  the  regular  Navy 
in  the  lowest  grade  having  graduated  pay  held  by  such  officer  since  last  entering 
the  service:  Provided,  That  nothing  in  this  clause  shall  be  so  construed  as  to 
authorize  any  change  in  the  dates  of  commission  or  in  the  relative  rank  of  such 
officers:  Provided  further,  That  nothing  herein  contained  shall  be  so  construed 
as  to  give  any  additional  pay  to  any  such  officer  during  the  time  of  his  service 
in  the  volunteer  army  or  navy. — (22  Stat.,  473,  chap.  97.) 

See  notes  to  sections  1443,    1556,   and   1600,       A  somewhat  similar  provision  was  contained 
Revised  Statutes;  and  see  act  of  June  10,  in  act  of  August  5,  1882  (22  Stat.,  287). 

1896  (29  Stat.,  361). 

[1883,  Mar.  3.  Life  saving  dress,  use  in  the  Navy.]  The  Secretary  of  the 
Navy  is  authorized  and  empowered,  within  his  discretion,  to  constitute  and 
introduce,  as  a  portion  of  the  equipment  of  the  Navy,  the  life  saving  dress 
adopted  and  approved  by  the  Life  Saving  Service  of  the  United  States. — (22 
Stat.,  475,  chap.  97.) 

[1883,  Mar.  3,  sec.  2.  Employment  on  shore  duty.]  That  hereafter  no 
officer  of  the  Navy  shall  be  employed  on  any  shore  duty,  except  in  cases  specially 
provided  by  law,  unless  the  Secretary  of  the  Navy  shall  determine  that  the 
employment  of  an  officer  on  such  duty  is  required  by  the  public  interests,  and 
he  shall  so  state  in  the  order  of  employment,  and  also  the  duration  of  such 
service,  beyond  which  time  it  shall  not  continue. — (22  Stat.,  481,  chap.  97.) 

A  similar  provision  was  contained  in  act  of 
August  5,  1882,  section  3  (22  Stat.,  297). 


This  provision  is  expressly  modified  by  act  of 

July  19, 1892  (27  Stat.,  245)_. 
See  note  to  section  1571,  Revised  Statutes,  as 

to  sea  service. 


[1883,  Mar.  3.  Rented  buildings,  report  to  Congress.]  It  shall  be  the  duty 
of  the  heads  of  the  several  executive  departments  to  submit  to  Congress  each 
year,  in  the  annual  estimates  of  appropriations,  a  statement  of  the  number  of 
buildings  rented  by  their  respective  departments,  the  purposes  for  which  rented, 
and  the  annual  rental  of  each. — (22  Stat.,  552,  chap.  128.) 


See  also  sections  429  and  430,    Revised 
Statutes,  and  note  thereto. 


See  acts  of  March  3,  1877  (19  Stat.,  370),  and 
July  16,  1892  (27  Stat.,  199),  as  amended 
by  act  of  May  1,  1913,  section  3  (38  Stat. ,  3). 

[1883,  Mar.  3,  Sec.  2.  Penalty  envelopes  to  be  inclosed  with  letters  to 
Members  of  Congress,  etc.]  And  it  shall  be  the  duty  of  the  respective  depart- 
ments to  inclose  to  Senators,  Representatives  and  Delegates  in  Congress,  in  all 
official  communications  requiring  answers,  or  to  be  forwarded  to  others,  penalty 
envelopes,  addressed  as  far  as  practicable,  for  forwarding  or  answering  such 
official  correspondence. — (22  Stat.,  563,  chap.  128.) 


1191 


Mar.  3,   1883.  Pt.  S.  STATUTES  AT  LARGE. 

A  portion  of  this  section,  omitted  above,  pro- 


vided for  requisitions  to  be  made  upon  the 
Postmaster  vieneral  by  heads  of  depart- 
ments for  the  necessary  amount  of  official 
postage  stamps  for  the  use  of  their  depart- 
ments. 


See  act  of  March  .3,  1879,  section  29  (20  Stat.. 
3G2),  and  note  thereto,  as  to  use  of  penalty 
envelopes  by  all  officero  of  the  Govern- 
ment, "not  including  Members  of  Con- 
gress." By  act  of  April  28,  1904,  section 
7  (33  Stat.,  441),  Members  of  CongTess 
were  given  the  })rivilege  of  transmitting 
correspondence  free  of  postage. 

[1883,  Mar.  3,  sec.  5.  Sale  of  vessels.]  It  shall  be  the  duty  of  the  Secretary 
of  the  Navy  to  cause  to  be  appraised,  in  such  manner  as  may  seem  best,  all 
vessels  of  the  Navy  which  have  been  stricken  from  the  Navy  Register  under 
the  provisions  of  the  act  making  appropriations  for  the  naval  service  for  the 
fiscal  year  ending  June  thirtieth,  eighteen  hundred  and  eighty-three,  and  for 
other  purposes,  approved  August  fifth,  eighteen  hundred  and  eighty-two. 
And  if  the  said  Secretary  shall  deem  it  for  the  best  interest  of  the  United  States 
to  soil  any  such  vessel  or  vessels,  he  shall,  after  such  appraisal,  advertise  for 
sealed  proposals  for  the  purchase  of  the  same,  for  a  period  not  less  than  three 
months,  in  such  newspapers  as  other  naval  advertisements  are  published,  setting 
forth  the  name  and  location  and  the  appraised  value  of  such  vessel,  and  that 
the  same  will  be  sold,  for  cash,  to  the  person  or  persons  or  corporation  or  cor- 
porations offering  the  highest  price  therefor  above  the  appraised  value  thereof; 
and  such  proposals  shall  be  opened  on  a  day  and  hour  and  at  a  place  named  in 
said  advertisement,  and  record  thereof  shall  be  made.  The  Secretary  of  the 
Navy  shall  require  to  accompany  each  bid  or  proposal  a  deposit  in  cash  of  not 
less  than  ten  per  centum  of  the  amount  of  the  offer  or  proposal,  and  also  a 
bond,  with  two  or  more  sureties  to  be  approved  by  him,  conditioned  for  the 
payment  of  the  remaining  ninety  per  centum  of  the  amount  of  such  offer  or 
proposal  within  the  time  fixed  in  the  advertisement.  And  in  case  default  is 
made  in  the  payment  of  the  remaining  ninety  per  centum,  or  any  part  thereof, 
the  Secretary,  within  the  prescribed  time  thereof,  shall  advertise  and  resell 
said  vessel  under  the  provisions  of  this  act.  And  in  that  event  said  cash 
deposit  of  ten  per  centum  shall  be  considered  as  forfeited  to  the  government, 
and  shall  be  applied,  first,  to  the  payment  of  all  costs  and  expenditures  attend- 
ing the  advertisement  and  resale  of  said  vessel;  second,  to  the  payment  of  the 
difference,  if  any,  between  the  first  and  last  sale  of  said  vessel;  and  the 
balance,  if  any,  shall  be  covered  into  the  Treasury:  Provided,  however,  That 
nothing  herein  contained  shall  be  construed  to  prevent  a  suit  upon  said  bond 
for  breach  of  any  of  its  conditions.  Any  vessel  sold  under  the  foregoing  pro- 
visions shall  be  delivered  to  the  purchaser  upon  the  full  payment  to  the  Secre- 
tary of  the  Navy  of  the  amount  of  such  proposal  or  offer;  and  the  net  proceeds 
of  such  sale  shall  be  covered  into  the  Treasury.  But  no  vessel  of  the  Navy 
shall  hereafter  be  sold  in  any  other  manner  than  herein  provided,  or  for  less 
than  such  appraised  value,  unless  the  President  of  the  United  States  shall 
otherwise  direct  in  writing. — (22  Stat.,  599-600,  chap.  141.) 

See  act  of  August  5,  1882,  section  2  (22  Stat.,  296-297);  see  also,  section  1541,  Revised  Stat- 
utes, and  note  thereto. 

[1883,  Mar.  3.  Patents  to  officers  of  United  States.]  The  Secretary  of  the 
Interior  and  the  Commissioner  of  Patents  are  authorized  to  grant  any  officer  of 
the  government,  except  officers  and  employees  of  the  Patent  Office,  a  patent 
for  any  invention  of  the  classes  mentioned  in  section  forty  eight  hundred  and 

1192 


PL  3.  STATUTES  AT  LARGE.  July  7,   1884. 

eighty  six  of  the  Revised  Statutes,  when  such  invention  is  used  or  to  be  used 
in  the  public  service,  without  the  payment  of  any  fee:  Provided,  That  the 
apphcant  in  his  application  shall  state  that  the  invention  described  therein,  if 
patented,  may  be  used  by  the  government  or  any  of  its  officers  or  employees  in 
the  prosecution  of  work  for  the  government,  or  by  any  other  person  in  the 
United  States,  without  the  payment  to  him  of  any  royalty  thereon,  which 
stipulation  shall  be  included  in  the  patent. — (22  Stat.,  625,  chap.  143.) 
See  section  4894,  Revised  Statutes,  and  note  thereto. 

[1884,  June  26.  Ensigns  commissioned  from  graduates  of  Naval  Academy; 
grade  of  junior  ensign  abolished.]  That  from  and  after  the  passage  of  this  act 
all  graduates  of  the  Naval  Academy  who  are  assigned  to  the  line  of  the  Navy, 
on  the  successful  completion  of  the  six  years  course,  shall  be  commissioned 
ensigns  in  the  Navy. 

Sec.  2.  That  the  grade  of  junior  ensign  in  the  Navy  is  hereby  abolished 
and  the  junior  ensigns  now  on  the  list  shall  be  commissioned  ensigns  in  the 
Navy:  Provided,  That  nothing  in  this  act  shall  be  so  construed  as  to  increase 
the  number  of  officers  in  the  Navy  now  allowed  by  law. 

Sec.  3.  That  all  acts  and  parts  of  acts  inconsistent  with  the  provisions  of 
this  act  be  and  the  same  are  hereby  repealed. — (23  Stat.,  60,  chap.  122.) 


See  note  to  section  1521,  Revised  Statutes,  as 
to  appointments  to  graduates  of  Naval 
Academy. 


See  act  of  Mar.  3,  1883  (22  Stat..  472),  and 
note  to  section  1362,  Revised  Statutes, 
as  to  grade  of  junior  ensign. 


[1884,  July  6,  Sec.  3.  Sale  of  smooth-bore  cannon  for  experimental  purposes.] 
That  the  Secretary  of  War  and  the  Secretary  of  the  Navy  are  hereby  authorized 
to  sell  to  projectors  of  methods  of  conversion,  for  experimental  purposes  only, 
any  smooth-bore  cannon  on  hand  required  by  them,  at  prices  which  shall  not 
be  less  than  have  been  received  from  auction  sales  for  such  articles,  and  deliver 
the  same,  at  the  cost  of  the  Government,  at  the  nearest  convenient  place 
for  shipment  or  pubhc  transportation;  the  cost  of  delivery  to  be  deducted 
from  the  proceeds  of  sales,  and  the  balance  to  be  covered  into  the  Treasury  of 
the  United  States.— (23  Stat.,  159,  chap.  235.) 

See  notes  to  sections  161,  418,  and  1541,  Revised  Statutes. 

[1884,  July  7.  Report  to  Congress  of  claims  allowed.]  That  the  Secretary 
of  the  Treasury  shall,  at  the  commencement  of  each  session  of  Congress,  report 
the  amount  due  each  claimant  whose  claim  has  been  allowed  in  whole  or  in 
part  to  the  Speaker  of  the  House  of  Representatives  and  the  presiding  officer 
of  the  Senate,  who  shall  lay  the  same  before  their  respective  Houses  for  con- 
sideration.—  (23  Stat.,  254,  chap.  334.) 

See  acts  of  June  20,  1874,  section  5  (  18  Stat.,  110),  and  June  14,  1878,  section  4  (20  Stat., 
130). 

[1884,  July  7.  Estimates,  how  submitted  to  Congress.]  And  hereafter 
all  estimates  of  appropriations  and  estimates  of  deficiencies  in  appropriations 
intended  for  the  consideration  and  seeking  the  action  of  any  of  the  committees 
of  Congress  shall  be  transmitted  to  Congress  through  the  Secretary  of  the 
Treasury,  and  in  no  other  manner;  and  the  said  Secretary  shall  first  cause  the 
same  to  be  properly  classified,    compiled,   indexed,   and   printed,   under   the 

1193 


May  20,   1886.  I't.  .i.   STATUTES  AT  LARGE. 

supervision   of   the  chief  of   the  division   of  warrants,   estimates,   and   appro- 
priations of  liis  Department. —  (23  Stat.,  254,  chap.  334.) 

See  Poctioiis  IliO  aiul  36(59,  Revised  Statutps,  and  notos  thereto. 

[1885,  Jan.  6.  Holidays,  per  diem  employees.]  That  the  employees  of  the 
Navy  Yard,  Ciovernment  Printing  Olhce,  Jiureau  of  Printing  and  Engraving, 
and  all  other  per  diem  employees  of  the  Government  on  duty  at  Waslnngton, 
or  elsewhere  in  the  United  States,  shall  be  allowed  the  following  holidays, 
to  wit :  The  first  day  of  January,  the  twenty-second  day  of  February,  the 
fourth  day  of  July,  the  twenty-fifth  day  of  December,  and  such  days  as  may  be 
designated  by  the  President  as  days  for  national  thanksgiving,  and  shall  receive 
the  same  pay  as  on  other  days. —  (23  Stat.,  516,  Res.  No.  5.) 

See  note"  to  section  1545,  Revised  Statutes. 

[1885,  Jan.  30.  Rations,  enlisted  men  and  naval  cadets.]  That  all  enlisted 
men  and  boys  in  the  Navy,  attached  to  any  United  States  vessel  or  station 
and  doing  duty  thereon,  and  naval  cadets,  shall  be  allowed  a  ration,  or  com- 
mutation thereof  in  money,  under  such  limitations  and  regulations  as  the 
Secretary  of  the  Navy  may  prescribe. —  (23  Stat.,  291,  chap.  43.) 


See     sections    1577-1579,     Revised     Statutes, 
and  notes  thereto,  relating  to  rations. 


See  section  1512,  Revised  Statutes,  and  note 
thereto,  as  to  change  in  designation  of 
"naval  cadets." 


[1885,  Jan.  30.  Commutation  for  forage.]  Marine  Corps.  *  *  *  That 
no  commutation  for  forage  shall  be  paid. —  (23  Stat.,  294,  chap.  43.) 

See  section  1612,  Revised  Statutes,  and  note  thereto. 

[1885,  Jan.  30,  Sec.  3.  Civilians  employed  on  clerical  duty  under  naval 
appropriations;  annual  report  and  estimates.]  That  the  Secretary  of  the 
Navy  is  hereby  directed  to  report  to  Congress,  at  its  next  and  each  regular 
session  thereafter,  the  amount  expended  during  the  prior  fiscal  year,  from 
the  appropriations  for  the  pay  of  the  Navy,  Bureaus  of  Navigation,  Ordinance, 
Equipment  and  Recruiting,  Yards  and  Docks,  Medicine  and  Surgery,  Pro- 
visions and  Clothing,  Construction  and  Repair,  and  Steam-Engineering,  for 
civilians  employed  on  clerical  duty,  or  in  any  other  capacity  than  as  ordinary 
mechanics  and  workingmen,  and  to  submit,  under  the  estimates  for  pay  of 
the  Navy  and  for  the  respective  Bureaus  enumerated  above,  specific  estimates 
for  such  civilian  employees  for  the  fiscal  year  eighteen  hundred  and  eighty- 
seven,  and  each  fiscal  year  thereafter. —  (23  Stat.,  295,  chap.  43.) 

See  note  to  section  419,  Revised  Statutes, 
as  to  changes  in  designation  of  bureaus 
in  the  Navy  Department. 

[1886,  May  20.  Naval  Academy,  instructions  as  to  nature  and  effects  of 
alcoholic  drinks,  etc.]  That  the  nature  of  alcoholic  drinks  and  narcotics,  and 
special  instructions  as  to  their  effects  upon  the  human  system,  in  connection 
with  the  several  divisions  of  the  subject  of  physiology  and  hygiene,  shall  be 
included  in  the  branches  of  study  taught  in  the  common  or  public  schools,  and 
in  the  Military  and  Naval  Schools,  and  shall  be  studied  and  taught  as  thor- 
oughly and  in  the  same  manner  as  other  like  required  branches  are  in  said 
schools,  by  the  use  of  text-books  in  the  hands  of  pupils  where  other  branches 
are  thus  studied  in  said  schools,  and  by  all  pupils  in  all  said  schools  throughout 

1194 


See  notes  to  sections  416,  429,  and  430,  Revised 
Statutes. 


Pt.  S.  STATUTES  AT  LARGE. 


Aug.  3,   1886. 


the  Territories,  in  the  Military  and  Naval  Academies  of  the  United  States,  and 
in  the  District  of  Columbia,  and  in  all  Indian  and  colored  schools  in  the  Terri- 
tories of  the  United  States. 

Sec.  2.  That  it  shall  be  the  duty  of  the  proper  officers  in  control  of  any 
school  described  in  the  foregoing  section  to  enforce  the  provisions  of  this  act; 
and  any  such  officer,  school  director,  committee,  superintendent,  or  teacher 
who  shall  refuse  or  neglect  to  comply  with  the  requirements  of  this  act,  or  shall 
neglect  or  fail  to  make  proper  provisions  for  the  instruction  required  and  in  the 
manner  specified  by  the  first  section  of  this  act,  for  all  pupils  in  each  and  every 
school  under  his  jurisdiction,  shall  be  removed  from  office,  and  the  vacancy 
filled  as  in  other  cases. —  (24  Stat.,  69,  chap.  362.) 

See  sections  1511-1528,  Revised  Statutes,  as  to  Naval  Academy. 

[1886,  July  26.  Tests  of  cannon  for  the  Navy.]  One  or  more  rifled  cannon 
of  each  type  constructed  at  the  cost  of  the  United  States  for  the  Navy  shall  be 
publicly  subjected  to  the  proper  test  for  endurance  including  such  rapid  firing 
as  a  like  gun  would  be  subjected  to  in  battle.  This  test  shall  be  under  the 
direction  and  to  the  satisfaction  of  the  Secretary  of  the  Navj",  and  if  such  guns 
do  not  prove  satisfactory,  the  type  they  represent  shall  not  be  put  in  use  in 
the  naval  service. —  (24  Stat.,  151,  chap.  781.) 


A  similar  provision  with  relation  to  the  Army, 
contained  in  an  act  approved  July  5,  1884 


(23  Stat.,  159).  was  repealed  by  act  of  March 
3,  1921,  section  7  (41  Stat.,  1352). 


[1886,  July  26,  sec.  2.  Unexpended  balances  of  appropriations.]  All  balan- 
ces of  moneys  appropriated  for  the  pay  of  the  Navy  or  pay  of  the  Marine  Corps, 
for  any  year  existing  after  the  accounts  for  said  year  shall  have  been  settled 
shall  be  covered  into  the  Treasury. —  (24  Stat.,  157,  chap.  781.) 


See  sections  250,  3689-3691,  Revised  Statutes. 
and  notes  thereto;  see  also  acts  of  June  20. 


1874,  section  5  (18  Stat.,  110),  and  August 
24,  1912,  section  7  (.37  Stat.,  487). 


[1886,  Aug.  3,  sec.  2.  Naval  construction;  steel  of  domestic  manufacture  to 
be  used ;  etc.]  That  in  the  construction  of  all  naval  vessels  the  steel  material 
shall  be  of  domestic  manufacture,  and  of  the  quality  and  characteristics  best 
adapted  to  the  various  purposes  for  which  it  may  be  used,  in  accordance  with 
specffications  approved  by  the  Secretary  of  the  Navy. —  (24  Stat.,  215,  chap. 
849;  30  Stat.,  390,  chap.  234.) 


See  section  3728,  Revised  Statutes. 

This  section  was  expressly  amended  and  re- 
enacted  to  read  as  above  by  act  of  May  4,  1898 
(30  Stat.,  390).  As  originally  enacted,  this 
section  and  the  other  sections  of  said  act  of 
August  3,  1886  (24  Stat.,  215-217),  read  as 
follows: 

'•'That  the  President  is  hereby  authorized  to 
have  constructed,  as  hereinafter  provided — 

"First.  Two  sea-going  double-bottomed  ar- 
mored vessels  of  about  six  thousand  tons  dis- 
placement, designed  for  a  speed  of  at  least  six- 
teen knots  an  hour,  with  engines  ha-ving  all 
necessary  appliances  for  working  under  forced 
draught,  and  costing,  including  engines  and 
machinery  and  excluding  armament,  not  more 
than  two  million  five  hundred  thousand  dollars 
each.  Said  vessels  shall  have  each  a  com- 
plete torpedo  outfit  and  be  armed  in  the  most 
effective  manner. 

"Second.  One  protected  double-bottomed 
cruiser  of  not  less  than  three  thousand  five  hun- 


dred nor  more  than  five  thousand  tons  displace- 
ment, designed  to  have  the  liighest  practicable 
speed  and  furnished  with  the  best  type  of  mod- 
em engines,  furnished  with  necessary  appli- 
ances for  working  under  forced  draught.  Said 
vessel  shall  cost,  including  engines  and  ma- 
chinery and  excluding  armament,  not  exceed- 
ing one  million  five  hundred  thousand  dollars. 

"Tliird.  One  first  class  torpedo-boat,  costing 
in  the  aggregate  not  more  than  one  hundred 
thousand  dollars. 

"Sec  2.  That  the  vessels  hereinbefore  au- 
thorized to  be  constructed  shall  be  built  of  steel 
of  domestic  manufacture,  having  a  tensile 
strength  of  not  less  than  sixty  thousand  pounds 
per  square  inch,  and  an  elongation  in  eight 
inches  of  not  less  than  twenty-five  per  centum. 

"Sec.  3.  That  the  President  is  hereby  author- 
ized to  direct  the  completion,  as  hereinafter  pro- 
vided, of  the  double-turreted  monitors  Puritan, 
Amphitrite,  Monadncck,  and  Terror,  at  a  total 
cost,  exclusive  of  armament,  not  to  exceed 


54641°— 22- 


re 


1195 


Aug.  3,   1886. 


I't.  3.  STATUTES  AT  LARGE. 


throe  million  one  hundred  and  seventy-eight 
thousand  and  forty-six  dollars. 

"Sec.  4.  That  the  armor  used  in  constructing 
said  armored  vessels  and  for  completing  said 
monitors  shall  he  of  the  host  ol)tainable  quality 
and  of  domestic  manufacture,  provided  con- 
tracts for  furnishing  the  same  in  a  reasonable 
time,  at  a  rea^souahle  price,  and  of  the  required 
quality  can  he  made  w-ith  responsible  parties. 
Such  armor  shall  be  accepted  only  after  passing 
such  tests  as  shall  l)e  prescribed  by  the  Secre- 
tary of  the  Navy  and  iiLserted  in  the  contracts. 

''  Sec.  5.  That  the  Secretary  of  the  Navy  shall 
cause  one  or  more  of  the  new  vessels  herein- 
before provided  for  to  be  constructed  and  one 
or  more  of  the  said  monitors  to  be  completed 
in  one  or  more  of  the  navy-yards  of  the  United 
States;  and  if  he  shall  be  unable  to  contract 
vrith  responsible  parties  to  construct  or  com- 
plete, at  reasonable  prices,  all  or  any  of  the 
vessels  hereinbefore  provided  for,  he  shall  cause 
the  same  to  be  constructed  or  completed  in  such 
of  the  navy-yards  of  the  United  States  as  may 
be  best  adapted  thereto. 

"Sec.  6.  That  the  engines,  boilers,  and  ma- 
chinery of  all  the  new  vessels  provided  for  by 
this  act  shall  be  of  domestic  manufacture  and 
procured  by  contract,  unless  the  Secretary  of 
the  Na\y  shall  be  unable  to  obtain  the  same  at 
fair  prices,  in  which  case  he  may  construct  the 
same,  or  any  portion  thereof,  in  the  navy-yards 
of  the  United  States:  Provided,  That  the  Secre- 
tary of  the  Navy  may  purchase  abroad  only  such 
shafting  as  it  may  be  impossible  to  obtain  in 
the  Umted  States  in  time  for  use  in  the  con- 
struction of  the  vessels  herein  provided  for. 

"Sec  7.  That  the  Secretary  of  the  Navy  shall 
not  contract  for  the  construction  or  completion 
of  any  of  said  vessels,  or  of  their  engines,  ma- 
chinery, or  boilers,  until  drawings  and  specifi- 
cations of  the  same  shall  have  been  provided  or 
adopted  by  him;  and  after  said  drawings  and 
specificationsshall  have  been  pro\'ided, adopted, 
and  approved  as  aforesaid,  and  work  shall  have 
been  commenced  on  any  contract  made  there- 
for, such  plans  and  specifications  shall  not  be 
changed  in  any  respect  when  the  cost  of  such 
change  in  the  execution  of  the  work  exceeds 
five  hundred  dollars,  except  upon  the  written 
order  of  the  Secretary  or  Acting  Secretary  of  the 
Navy;  and  if  changes  are  thus  made,  the  actual 
cost  thereof  and  the  damage  caused  thereby 
shall  be  ascertained,  estimated,  and  determined 
by  a  board  of  naval  ofiicers  to  be  provided  for 
in  the  contract;  and  in  any  contract  made  pur- 
suant to  this  act  it  shall  be  provided  in  the  terms 
thereof  that  the  contractor  shall  be  bound  by 
the  determination  of  said  board,  or  a  majority 
thereof,  as  to  the  amount  of  increase  or  dimin- 
ished compensation  said  contractor  shall  be 
entitled  to  receive,  if  any,  in  consequence  of 
such  change  or  changes.  In  every  contract  to 
be  made  under  this  act  there  shall  be  prescribed 
a  period  within  which  the  work  proAaded  for  in 
said  contract,  or  specified  portions  thereof,  shall 
be  completed,  and  the  completion  of  such  work 
within  the  periods  prescribed  shall  be  insured 
by  penal  provisions.  For  the  construction  or 
completion  of  such  vessels  hereinbefore  pro- 
xdded  for  as  the  Secretary  of  the  Navy  shall 
propose  to  have  constructed  or  completed  by 
contract,  as  well  as  also  for  the  engines,  boilers. 


and  machinery  hereinbefore  provided  for,  he 
shall  invite  proposals  from  every  American 
shipbuilder  and  other  person  who  shall  show  to 
the  satLsfact  ion  of  the  Secretary  of  the  Navy  that 
^\'ithin  three  months  from  the  date  of  the  con- 
tract he  wall  be  possessed  of  the  necessary  plant 
for  the  performance  of  the  work  in  the  United 
States  which  he  shall  offer  to  undertake,  and 
such  contract  shall  be  let  to  the  lowest  and  best 
rasponsible  bidder  or  bidders,  after  at  least  sixty 
days'  advertisement,  published  in  five  leading 
papers  of  the  United  States,  inviting  proposals 
for  the  work  proposed,  which  worK  shall  be 
subject  to  all  such  rules,  regulations,  superin- 
tendence by  naval  officers  during  construction, 
and  provisions  as  to  bonds  and  security  for  the 
quality  and  due  completion  of  the  work  as  the 
Secretary  of  the  Navy  shall  prescribe;  and  no 
vessel,  boiler,  engine,  machinery,  or  portion 
thereof  shall  be  accepted  unless  completed  in 
strict  conformity  with  the  contract;  and  the 
authority  given  hereby  shall  take  effect  at  once. 
The  Secretary  of  the  Navy  shall  have  the  power 
to  reject  any  or  all  bids  made  under  the  pro- 
visions of  this  act. 

"Sec.  8.  That  the  sum  of  one  million  dollars 
is  hereby  appropriated  towards  the  armament 
of  the  vessels  authorized  by  the  act  of  March 
third,  eighteen  hundred  and  eighty-five,  of  the 
vessels  authorized  by  section  one  of  this  act, 
and  of  the  unfinished  monitors  hereinbefore 
mentioned,  and  of  the  Miantonomoh;  and  the 
Secretary  of  the  Navy  is  hereby  authorized  to 
direct  the  application  of  such  portions  of  this 
sum  as  may  be  necessary  to  the  manufacture  or 
purchase  of  such  tools  and  machinery  or  the 
erection  of  such  structures  as  may  be  required 
for  use  in  the  manufacture  of  such  armament, 
or  any  part  thereof:  Provided,  That  the  Secretary 
of  the  Navy  may  contract  with  domestic  manu- 
facturers for  the  construction  of  such  portion  of 
the  heavy  guns  herein  provided  for  as  may  not 
be  built  by  the  Government. 

"Sec.  9.  That  the  Secretary  of  the  Navy  is 
hereby  authorized  to  contract  with  the  Pneu- 
matic Dynamite-Gun  Company  of  New  York 
for  one  dynamite-gun  cruiser,  as  follow:  Said 
cruiser  to  be  not  less  than  two  hundred  and 
thirty  feet  long,  twenty-six  feet  breadth  of 
beam,  seven  and  one-half  feet  draught,  three 
thousand  two  hundred  horse-power,  and  guar- 
anteed to  attain  a  speed  of  twenty  knots  an 
hour,  and  to  be  equipped  with  three  pneumatic 
dynamite-guns  of  ten  and  one-half  inch  caliber, 
and  guaranteed  to  throw  shells  containing  two 
hundred  pounds  of  dynamite  or  other  high 
explosives  at  least  one  mile,  each  gun  to  be 
capable  of  being  discharged  once  in  two 
minutes,  at  a  price  not  to  exceed  three  hundred 
and  fifty  thousand  dollars;  said  contract  to  be 
made  only  on  condition  that  there  shall  be  a 
favorable  report  made  by  the  existing  Naval 
Board  on  the  system ;  to  be  paid  for  as  the  work 
progresses,  and  upon  the  report  of  such  board 
or  boards  of  inspectors  as  the  Secretary  of  the 
Navy  may  for  that  purpose  appoint,  reserving 
thirty  per  centum  on  all  such  payments  until 
the  whole  work  is  completed  and  accepted  by 
the  Secretary  of  the  Navy. 

"The  Pneumatic  Dynamite-Gun  Company 
shall  furnish  bonds  satisfactory  to  the  Secretary 
of  the  Navy  for  the  faithful  performance  of  its 


1196 


Pt.  S.    S  TA  T  UTES  A  T  LARGE. 


Aug.  4,   1886. 


contract,  and  for  the  refunding  of  the  money  paid 
hereunder  in  case  of  the  nonperformance  of  the 
same,  and  shall  further  agree  with  the  Secretary 
of  the  Navy  upon  a  lirmt  of  price  which  shall 
not  be  exceeded  in  any  future  contracts  which 
the  Government  may  desire  to  enter  into  for 
the  purchase  of  the  company's  guns. 

"Sec.  10.  That  towards  the  construction  and 
completion  of  the  vessels  hereinbefore  men- 
tioned, including  the  vessel  and  guns  mentioned 
in  section  nine,  the  sum  of  two  million  five 
hundred  thousand  dollars  is  hereby  appro- 
priated, of  which  not  more  than  seventy-five 
thousand  dollars  may  be  expended  in  manu- 
facturing, purchasing,  and  experimenting  with 
torpedoes  of  domestic  manufacture  and  not 
exceeding  one  hundred  and  fifty  thousand 
dollars  may  be  expended,  under  the  direction 
of  the  Secretary  of  the  Navy,  in  improving  the 
plant  of  such  of  the  navy-yards  as  he  may 
select." 

The  provisions  contained  in  the  foregoing  act 
of  August  3,  1886,  relating  to  the  construction 
of  the  particular  vessels  therein  specified,  were 
applied  to  the  construction  of  other  vessels 
thereafter  authorized  by  appropriations  under 
"Increase  of  the  Navy  "  in  annual  naval  appro- 
priation acts,  to  and  including  the  act  of  June 
24,  1910  (36  Stat.,  628),  the  language  of  which 
act  with  respect  thereto  being  as  follows: 

"In  the  construction  of  all  of  said  vessels  the 
provisions  of  the  act  of  August  third,  eighteen 
hundred  and  eighty-six,  entitled  'An  act  to 
increase  the  naval  establishment,'  as  to  mate- 
rials for  said  vessels,  their  engines,  boilers,  and 
machinery,  the  contracts  under  which  they 
are  built,  the  notice  of  any  proposals  for  the 
same;  the  plans,  drawings,  specifications  there- 
for, and  the  method  of  executing  said  contracts 
shall  be  observed  and  followed,  and,  subject 
to  the  provisions  of  this  act,  except  that  the 
Secretary  of  the  Navy  may  accept,  in  lieu  of 
an  indemnity  bond,  the  deposit  by  contractors 
of  United  States  Government  or  State  bonds, 
under  such  conditions  and  in  such  manner  as 
the  Secretary  may  prescribe,  having  due  regard 
for  the  rights  and  protection  of  the  United 
States,  all  said  vessels  shall  be  built  in  compli- 
ance with  the  terms  of  said  act,  and  in  all  their 
parts  shall  be  of  domestic  manufacture;  and 
the  steel  materials  shall  be  of  domestic  manu- 
facture, and  of  the  quality  and  characteristics 


best  adapted  to  the  various  purposes  for  which 
it  may  be  used,  in  accordance  \vith  specifica- 
tions approved  by  the  Secretary  of  the  Navy, 
provided  contracts  for  furnishing  the  same  in 
a  reasonable  time,  at  a  reasonable  price,  and  of 
the  required  quality  can  be  made  with  respon- 
sible parties. ' ' 

In  the  appropriations  for  new  vessels  sul^se- 
quent  to  the  above-quoted  act  of  June  24,  1910, 
no  reference  has  been  made  to  the  act  of  August 
3,  1886. 

Changes  in  contracts. — Prior  to  1911  con- 
tracts for  the  construction  of  naval  vessels 
contained  stipulations  as  to  changes  therein,  in 
accordance  with  section  7  of  the  act  of  August 

3,  1886,  made  applicable  to  such  new  construc- 
tion by  specific  clauses  in  the  annual  naval 
appropriation  acts  under  "Increase  of  the 
Navy."  Since  1910  similar  provisions  as  to 
changes  have  been  embodied  in  such  contracts, 
although  no  longer  required  by  law.  This 
practice  is  based  on  an  opinion  of  the  Attorney 
General  of  December  21,  1911  (29  Op.  Atty. 
Gen.,  285),  which  held  that  "the  Secretary  of 
the  Navy  may  insert  in  the  contracts  for  vessels 
constructed  under  authority  of  the  act  of  March 

4,  1911  (36  Stat.,  1265),  a  provision  for  making 
changes  in  said  contracts  and  for  determining 
the  amount  of  increased  or  diminished  compen- 
sation arising  therefrom,  whether  such  compen- 
sation be  of  the  nature  of  liqmdated  or  unliciui- 
dated  damages."     (File  22724-51,  Apr.  7, 1921.) 

From  an  examination  of  the  cases  it  is  clear 
that' changes  in  public  contracts  may  be  made 
without  specific  authority  therefor;  but  it  is 
also  clear  that  contract  provisions  relating  to 
such  changes  must  be  strictly  observed.  (File 
22724-51,  Apr.  7,  1921,  citing  29  Op.  Atty. 
Gen.,  285;  18  Op.  Atty  .Gen.,  101;  28  Op.  Atty. 
Gen.,  121;  21  Op.  Atty.  Gen.,  207;  Corliss 
Steam  Eng.  Co.  v.  U.  S.,  10  Ct.  Cls.,  494,  91 
U.  S.,  321;  Hawkins  v.  U.  S.,  96  U.  S.,  689; 
Ferris  v.  U.  S.,  28  Ct.  Cls.,  332;  Williams  Eng. 
and  Cent.  Co.  v.  U.  S.,  55  Ct.  Cls.,  349;  2  Comp. 
Dec,  182,  185;  4  Comp.  Dec,  38;  3  Comp. 
Dec,  54;  5  Comp.  Dec,  83;  7  Comp.  Dec,  92; 
9  Op.  Atty.  Gen.,  80,  103;  10  Op.  Atty.  Gen., 
476;  15  Op.  Atty.  Gen.,  481;  12  Op.  Atty.  Gen., 
112;  Satterlee  v.  U.  S.,  30  Ct.  Cls.,  31.) 

See  act  of  March  4,  1917  (39  Stat.,  1193),  as 
to  changes  in  contracts  during  war. 


[1886,  Aug.  4.  Printing  and  engraving,  Hydrographic  office.]  That  all 
printing  and  engraving  for  the  Geological  Survey,  the  Coast  and  Geodetic 
Survey,  the  Hydrographic  Office  of  the  Navy  Department,  and  the  Signal 
Service  shall  hereafter  be  estimated  for  separately  and  in  detail,  and  appro- 
priated for  separately  for  each  of  said  Bureaus. —  (24  Stat.,  255,  chap.  902.) 

See  sections  430  and  431,  Revised  Statutes,  and  notes  thereto;  see  also  act  of  January  12, 
1895,  section  27  (28  Stat.,  604). 

[1886,  Aug.  4.  Intoxicating  liquors,  Board  of  Visitors,  Naval  Academy.] 
Naval  Academy.  *  *  *  That  no  part  of  this  sum,  or  of  any  other  ap- 
propriation by  Congress  for  expenses  of  the  Board  of  Visitors,  shall  be  used  to 
pay  for  intoxicating  liquors. —  (24  Stat.,  268,  chap.  903.) 

See  note  to  section  1511,  Revised  Statutes. 


1197 


June  29,  1888.  Pt.  S.  STATUTES  AT  LARGE. 

[1887,  Feb.  4,  sec.  6.  Transportation  of  troops  and  war  material,  etc.] 
Tliat  in  time  of  war  or  threatened  war  preference  and  precedence  shall,  upon 
demand  of  the  President  of  the  United  States,  be  given  over  all  other  traffic 
for  the  transportation  of  troops  and  material  of  war,  and  carriers  shall  adopt 
every  means  within  their  control  to  facilitate  and  expedite  the  military  traffic. 
And  in  time  of  peace  shipments  consigned  to  agents  of  the  United  States  for 
its  use  shall  l)e  delivered  by  the  carriers  as  promptly  as  possible  and  without 
regard  to  any  embargo  that  may  have  been  declared,  and  no  such  embargo 
shall  apply  to  shipments  so  consigned. —  (24  Stat.,  380,  chap.  104;  39  Stat., 
604,  chap.  417.) 


The  above  was  an  amendment  and  reactment, 
by  act  of  Aus^iist  29,  1916  (39  Stat.,  604), 
of  a  portion  of  section  6  of  an  act  approved 
February  4,  1887  (24  Stat.,  380-382),  as 
previously  amended  by  acts  of  March  2, 


1889  (25  Stat.,  855),  and  June  29,  1906, 
section  2  (34  Stat.,  586-589). 
See  also  act  of  August  29,  1916  (39  Stat.,  645, 
chap.  418). 


[1887,  Feb.  23.  United  States  prisoners,  hiring  out  labor  of.]  That  it  shall 
not  be  lawful  for  any  officer,  agent,  or  servant  of  the  Government  of  the  United 
States  to  contract  with  any  person  or  corporation,  or  permit  any  warden,  agent, 
or  official  of  any  State  prison,  penitentiary,  jail,  or  house  of  correction  where 
criminals  of  the  United  States  may  be  incarcerated  to  hire  or  contract  out  the 
labor  of  said  criminals,  or  an}'  part  of  them,  who  may  hereafter  be  confined 
in  any  prison,  jail,  or  other  place  of  incarceration  for  violation  of  any  laws  of 
the  Government  of  the  United  States  of  America. 

Sec.  2.  That  any  person  who  shall  offend  against  the  provisions  of  this 
act  shall  be  deemed  guUty  of  a  misdemeanor,  and,  on  conviction  thereof, 
shall  be  imprisoned  for  a  term  not  less  than  one  year  nor  more  than  tliree  years, 
at  the  discretion  of  the  court,  or  shall  be  fined  not  less  than  five  hundred  dollars 
nor  more  than  one  thousand  dollars  for  each  offense. 

Sec.  3.  That  all  acts  or  parts  of  acts  inconsistent  with  the  provisions  of 
this  act  are  hereby  repealed ;  and  this  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage. —  (24  Stat.,  411,  chap.  213.) 

[1887,  Feb.  23.  Holidays,  per  diem  employees.]  That  all  per  diem  employees 
of  the  Government,  on  duty  at  Washington  or  elsewhere  in  the  United  States, 
shall  be  allowed  the  day  of  each  year,  which  is  celebrated  as  "Memorial"  or 
"Decoration  Day"  and  the  fourth  of  July  of  each  year,  as  holiday,  and  shall 
receive  the  same  pay  as  on  other  days. —  (24  Stat.,  644,  Res.  No.  6.) 

See  note  to  section  1545,  Revised  Statutes. 

[1888,  June  29,  sec.  6.  Supervisor  of  New  York  Harbor.]  That  a  line  officer 
of  the  Navy  shall  be  designated  by  the  President  of  the  United  States  as 
supervisor  of  the  harbor,  to  act  under  the  direction  of  the  Secretary  of  War  in 
enforcing  the  provisions  of  this  act,  and  in  detecting  offenders  against  the  same. 
This  officer  shall  receive  the  sea-pay  of  his  grade,  and  shall  have  personal  charge 
and  supervision  under  the  Secretary  of  War,  and  shall  direct  the  patrol  boats 
and  other  means  to  detect  and  bring  to  punishment  offenders  against  the  pro- 
visions of  this  act. —  (25  Stat.,  210,  chap.  496.) 


1198 


Ft.  J.  STATUTES  AT  LARGE. 


Aug.  8,  1888. 


The  "harbor"  referred  to  in  this  Bection  is       Duties  of  the  supervisor  of  the  harbor  of  New 

the  harbor  of  New  York  City.  York,  appointed  as  provided  above,  and 

Sea-pay  of  naval  officers,  see  notes  to  sections  his  powers  as  to  appointment  of  deputies, 

1556  and  1571,  Revised  Statutes.  making  arrests   and   seizures,    etc.,    were 

War  Department,  officers  of  the  Navy  detailed  prescribed  by  act  of  May  28,  1908  (35  Stat., 

to  duty  under  direction  of,  see  sections  427). 

1437  and  1621,  Revised  Statutes,  and  notes 

thereto. 

[1888,  Aug.  1.  Condemnation  of  lands.]  That  in  every  case  in  which  the 
Secretary  of  the  Treasury  or  any  other  officer  of  the  Government  has  been,  or 
hereafter  shall  be,  authorized  to  procure  real  estate  for  the  erection  of  a  public 
building  or  for  other  public  uses  he  shall  be,  and  hereby  is,  authorized  to 
acquire  the  same  for  the  United  States  by  condemnation,  under  judicial  proc- 
ess, whenever  in  his  opinion  it  is  necessary  or  advantageous  to  the  Govern- 
ment to  do  so,  and  the  United  States  circuit  or  district  courts  of  the  district 
wherein  such  real  estate  is  located,  shall  have  jurisdiction  of  proceedings  for 
such  condemnation,  and  it  shall  be  the  duty  of  the  Attorney-General  of  the 
United  States,  upon  every  application  of  the  Secretary  of  the  Treasury,  under 
this  act,  or  such  other  officer,  to  cause  proceedings  to  be  commenced  for  con- 
demnation, within  thirty  days  from  the  receipt  of  the  application  at  the 
Department  of  Justice. 

Sec.  2.  The  practice,  pleadings,  forms  and  modes  of  proceeding  in  causes 
arising  under  the  provisions  of  this  act  shall  conform,  as  near  as  may  be,  to 
the  practice,  pleadings,  forms  and  proceedings  existing  at  the  time  in  like 
causes  in  the  courts  of  record  of  the  State  within  which  such  circuit  or  district 
courts  are  held,  any  rule  of  the  court  to  the  contrary  notwithstanding. — (25 
Stat.,  357,  chap.  728.) 

Circuit  courts  of  the  United  States  were  abol- 
ished bv  act  of  March  3,  1911,  section  289 
(36  Stat.,  1167). 


See  act  of  July  9,  1918  (40  Stat.,  888);  and  see 
section  355,  Revised  Statutes,  and  note 
thereto. 


[1888,  Aug.  8.  Bonded  officers,  delinquency,  notice  to  sureties,  time  for 
bringing  suit.]  That  hereafter,  whenever  any  deficiency  shall  be  discovered 
in  the  accounts  of  any  official  of  the  United  States,  or  of  any  officer  disbursing 
or  chargeable  vnih.  public  money,  it  shall  be  the  duty  of  the  accounting  officers 
making  such  discovery  to  at  once  notify  the  head  of  the  Department  having 
control  over  the  affairs  of  said  officer  of  the  nature  and  amount  of  said  deficiency, 
and  it  shall  be  the  immediate  duty  of  said  head  of  Department  to  at  once 
notify  all  obligors  upon  the  bond  or  bonds  of  such  official  of  the  nature  of  such 
deficiency  and  the  amount  thereof.  Said  notification  shall  be  deemed  sufficient 
if  mailed  at  the  post-office  in  the  city  of  Washington,  District  of  Columbia, 
addressed  to  said  sureties  respectively,  and  directed  to  the  respective  post- 
offices  where  said  obligors  may  reside,  if  known;  but  a  failure  to  give  or  mail 
such  notice  shall  not  discharge  the  surety  or  sureties  upon  such  bond. 

Sec.  2.  That  if,  upon  the  statement  of  the  account  of  any  official  of  the 
United  States,  or  of  any  officer  disbursing  or  chargeable  with  public  money, 
by  the  accounting  officers  of  the  Treasury,  it  shall  thereby  appear  that  he  is 
indebted  to  the  United  States,  and  suit  therefor  shall  not  be  instituted  within 
five  years  after  such  statement  of  said  account,  the  sureties  on  his  bond  shall 
not  be  liable  for  such  indebtedness. — (25  Stat.,  387,  chap.  787.) 

See  sections  1383-1385,  Revised  Statutes,  and  notes  thereto;  see  also  act  of  February  24, 1919, 
section  1320  (40  Stat.,  1148). 

1199 


Aug.   14,  1888.  /'(.  S.  STATUTES  AT  LARGE 

[1888,  Aug.  14.  Civil  War  cases;  removal  of  charge  of  desertion,  issuance 
of  discharge  certificate,  etc.]  That  the  cliargc  of  desertion  now  standing  on 
the  rolls  and  records  of  the  Navy  or  Marine  Corps  against  any  appointed  or 
enlisted  man  of  the  Navy  or  Marine  Corps  who  sorvetl  in  the  late  war  may  in 
the  discretion  of  the  Secretary  of  the  Navy  be  removed  in  all  cases  where  it 
shall  be  made  to  appear  to  the  satisfaction  of  the  Secretary  of  the  Navy  from 
such  rolls  and  records  or  from  other  satisfactory  evidence,  that  any  such 
appointed  or  enlisted  man  served  faithfully  until  the  expiration  of  his  term  of 
enlistment,  or  until  the  first  day  of  May  anno  Domini  eighteen  hundred  and 
sixty-five,  having  previously  served  six  months  or  more,  or  was  prevented 
from  completing  his  term  of  service  by  reason  of  wounds  received  or  disease 
contracted  in  the  line  of  duty,  but  who,  by  reason  of  absence  from  his  command 
at  the  time  he  became  entitled  to  his  discharge,  failed  to  be  mustered  out  and 
to  receive  a  discharge  from  the  service:  Provided,  That  no  such  appointed  or 
enlisted  man  shall  be  relieved  under  this  section  who,  not  being  sick  or  wounded, 
left  his  command,  without  proper  authority,  while  the  same  was  in  presence 
of  the  enemy. 

Sec,  2.  That  the  Secretary  of  the  Navy  is  hereby  authorized  to  remove 
the  charge  of  desertion  standing  on  the  rolls  or  records  of  the  Navy  or  Marine 
Corps  against  any  appointed  or  enlisted  man  of  the  Navy  or  Marine  Corps  who 
served  in  the  late  war,  in  all  cases  where  it  shall  be  made  to  appear,  to  the 
satisfaction  of  the  Secretary  of  the  Navy,  from  such  rolls  or  from  other  satis- 
factory evidence,  that  such  appointed  or  enlisted  man  charged  with  desertion 
or  with  absence  without  leave,  after  such  charge  of  desertion  or  absence  without 
leave,  and  within  a  reasonable  time  thereafter,  voluntarily  returned  to  and 
served  in  the  line  of  his  duty  until  he  was  mustered  out  of  the  service,  and 
received  a  certificate  of  discharge  therefrom,  or,  while  so  absent,  and  before 
the  expiration  of  his  term  of  enlistment,  died  from  wounds,  injury,  or  disease 
received  or  contracted  in  the  service  and  in  the  line  of  duty. 

Sec.  3.  That  the  charge  of  desertion  now  standing  on  the  rolls  or  records 
of  the  Navy  or  Marine  Corps  against  any  appointed  or  enlisted  man  of  the  Navy 
or  Marine  Corps  who  served  in  the  late  war,  by  reason  of  his  having  enlisted  at 
any  station  or  on  board  of  any  vessel  of  the  Navy  without  having  first  received 
a  discharge  from  the  station  or  vessel  in  which  he  had  previously  served,  shall 
be  removed  in  all  cases  wherein  it  shall  be  made  to  appear  to  the  satisfaction  of 
the  Secretary  of  the  Navy  from  such  rolls  and  records,  or  from  other  satisfactory 
testimony,  that  such  re-enlistment  was  not  made  for  the  purpose  of  securing 
bounty  or  other  gratuity  that  he  would  not  have  been  entitled  to,  had  he 
remained  under  his  original  term  of  enlistment:  Provided,  That  no  appointed 
or  enlisted  man  shall  be  relieved  under  this  act  who,  not  being  sick  or  wounded, 
left  his  command  without  proper  authority  while  the  same  was  in  presence  of 
the  enemy,  or  who,  at  the  time  of  leaving  his  command,  was  in  arrest  or  under 
charges,  or  in  whose  case  the  period  of  absence  from  the  service  exceeded  three 
months. 

Sec.  4.  That  in  all  cases  where  the  charge  of  desertion  shall  be  removed 
under  the  provisions  of  this  act  from  the  record  of  any  appointed  or  enlisted 
man  of  the  Navy  or  Marine  Corps  who  has  not  received  a  certificate  of  discharge 
it  shall  be  the  duty  of  the  Secretary  of  the  Navy  to  issue  to  such  appointed  or 

1200 


Pt.  3.  STATUTES  AT  LARGE.  Feb.  8,   1889. 

enlisted  man,  or  in  case  of  his  death,  to  his  heirs  or  legal  representatives,  a 
certificate  of  discharge. 

Sec.  5.  That  when  the  charge  of  desertion  shall  be  removed  under  the 
provisions  of  this  act  from  the  record  of  any  appointed  or  enlisted  man  of  the 
Navy  or  Marine  Corps,  such  man,  or,  in  case  of  his  death,  the  heirs  or  legal 
representatives  of  such  man,  shall  receive  all  pay  and  bounty  which  may  have 
been  withheld  on  account  of  such  charge  of  desertion  or  absence  without  leave : 
Provided,  however,  That  this  act  shall  not  be  so  construed  as  to  give  to  any  such 
man  as  may  be  entitled  to  relief  under  the  provisions  of  this  act,  or,  in  case  of 
his  death,  to  the  heirs  or  legal  representatives  of  any  such  man,  the  right  to 
receive  pay  and  bounty  for  any  period  of  time  during  which  such  man  was 
absent  from  his  command  without  leave  of  absence:  And  provided  further,  That 
no  appointed  or  enlisted  man,  nor  the  heirs  or  legal  representatives  of  any  such 
man,  who  served  in  the  Navy  or  Marine  Corps  a  period  of  less  than  six  months 
shall  be  entitled  to  the  benefit  of  the  provisions  of  this  act:  And  provided  further. 
That  all  applications  for  relief  under  this  act  shall  be  made  to  and  filed  with  the 
Secretary  of  the  Navy  within  the  period  of  five  years  from  and  after  its  passage, 
and  all  applications  not  so  made  and  filed  within  the  said  term  of  five  years 
shall  be  forever  barred,  and  shall  not  be  received  or  considered. 

Sec.  6.  That  all  acts  and  parts  of  acts  inconsistent  with  the  provisions  of 
this  act  are  hereby  repealed. — (25  Stat.,  442-443,  chap.  890.) 

See  note  to  Constitution,  Article  I,  section  7, 
clause  2,  under  ' '  Veto  of  bill  to  alter  mili- 
tary records." 


See  act  of  May  24,  1900  (31  Stat.,  183),  which 
"revived  and  reenacted"  this  act,  and 
removed  the  limitation  of  time  contained 
in  section  5  thereof. 


See  section  418,  Revised  Statutes,  and  note 
thereto,  as  to  property  of  the  Navy  De- 
partment. 


[1888,  Oct.  19,  sec.  3.  Loan  of  scientific  instruments.]  That  the  Secretary 
of  the  Navy  be,  and  he  is  hereby,  authorized,  in  his  discretion,  to  loan  any 
scientific  instruments  in  the  possession  of  any  of  the  bureaus  under  his  charge, 
and  not  in  use,  to  persons  taking  observations,  or  making  investigations  in  con- 
nection with,  or  for  the  use  of,  the  Signal  Service  under  such  regulations  as  he 
may  prescribe,  taking  such  security  for  the  safe-keeping  and  return  of  such 
instruments  on  demand  as  he  may  deem  necessary. —  (25  Stat.,  600,  chap.  1210.) 

The  civilian  duties  of  the  Signal  Corps  were, 
by  act  of  October  1,  1890  (26  Stat.,  653), 
transferred  to  the  Weather  Bureau,  estab- 
lished in  the  Department  of  Agriculture 
by  said  act. 

[1889,  Feb.  8.  Home  on  receiving  ships,  men  honorably  discharged.]  That 
the  Secretary  of  the  Navy  be,  and  he  is  hereby,  authorized  to  permit  any 
person  receiving  the  honorable  discharge  authorized  by  section  fourteen  hun- 
dred and  twenty-nine  of  the  Revised  Statutes  to  elect  a  home  on  board  of  any 
of  the  United  States  receiving-ships,  during  any  portion  of  the  three  months 
granted  by  law  as  the  limit  of  time  within  which  to  receive  the  pecuniary 
benefit  of  such  discharge,  the  men  so  choosing  a  home  to  be  entitled  to  one 
ration  per  day  for  their  keeping  while  furnished  with  such  home,  but  not  to 
pay,  other  than  that  authorized  by  section  fifteen  hundred  and  seventy-three 
of  the  Revised  Statutes  of  the  United  States  upon  re-enlistment:  Provided, 
That  the  persons  so  furnished  with  a  home  shall  be  amenable  to  such  regula- 


1201 


amenable  to  jurisdiction  of  naval  courts- 
martial. 


Feb.  16,  1889.  Pt.  S.  STATUTES  AT  LARGE. 

tions  as  may  be  proscribed  by  the  Secretary  of  the  Navy  or  other  competent 
authority. —  (25  Stat.,  657,  chap.   115.) 

See  notes  to  sections  1426,  1429,  and  1573,  Re- 
vised Statutes;  see  also  note  to  section 
1624,    Revised    Statutes,    as    to    persons 

[1889,  Feb.  9.  Deposit  of  savings,  enlisted  men  of  the  Navy.]  That  any 
enlisted  man  or  appointed  petty  officer  of  the  Navy  may  deposit  his  savings, 
in  sums  not  less  than  five  dolhirs,  with  the  paymaster  upon  whose  books  his 
account  is  borne;  and  he  shall  be  furnished  with  a  deposit-book,  in  which  the 
said  paymaster  shall  note,  over  his  signature,  the  amount,  date,  and  place  of 
such  deposit.  The  money  so  deposited  shall  be  accounted  for  in  the  same 
manner  as  other  public  funds,  and  shall  pass  to  the  credit  of  the  appropriation 
for  "Pay  for  the  Navy,"  and  shall  not  be  subject  to  forfeiture  by  sentence  of 
court-martial,  but  shaU  be  forfeited  by  desertion,  and  shall  not  be  permitted  to 
be  paid  until  final  payment  on  discharge,  or  to  the  heirs  or  representatives  of  a 
deceased  sailor,  and  that  such  deposit  be  exempt  from  liability  for  such  sailor's 
debts:  Provided,  That  the  Government  shall  be  liable  for  the  amount  deposited 
to  the  person  so  depositing  the  same. 

Sec.  2.  That  for  any  sums  not  less  than  five  dollars  so  deposited  for  the 
period  of  six  months  or  longer,  the  sailor,  on  his  final  discharge,  shall  be  paid 
interest  at  the  rate  of  four  per  centum  per  annum. 

Sec.  3.  That  the  system  of  deposits  herein  established,  shall  be  carried  into 
execution  under  such  regulations  as  may  be  established  by  the  Secretary 
of  the  Navy.— (25    Stat.,    657-658,    chap.    119.) 

See  act  of  June  29,  1906  (34  Stat.,  579,i,  as  to 
deposit  of  savings  by  enlisted  men  of  the 


Marine  Corps;  see  also  notes  to  sections 
1569,  1612,  and  1621,  Revised  Statutes. 


[1889,  Feb.  16.  Useless  papers,  disposition  of;  report  to  Congress.]  That 
whenever  there  shall  be  in  any  one  of  the  Executive  Departments  of  the 
Government  an  accumulation  of  files  of  papers,  which  are  not  needed  or  useful 
in  the  transaction  of  the  current  business  of  such  Department  and  have  no 
permanent  value  or  historical  interest,  it  shall  be  the  duty  of  the  head  of  such 
Department  to  submit  to  Congress  a  report  of  that  fact,  accompanied  by  a 
concise  statement  of  the  condition  and  character  of  such  papers.  And  upon 
the  submission  of  such  report,  it  shall  be  the  duty  of  the  presiding  officer  of 
the  Senate  to  appoint  two  Senators,  and  of  the  Speaker  of  the  House  of  Kep- 
resentatives  to  appoint  two  Representatives,  and  the  Senators  and  Repre- 
sentatives so  appointed  shall  constitute  a  joint  committee,  to  which  shall  be 
referred  such  report,  with  the  accompanying  statement  of  the  condition  and 
character  of  such  papers,  and  such  joint  committee  shall  meet  and  examine 
such  report  and  statement  and  the  papers  therein  described,  and  submit  to 
the  Senate  and  House,  respectively,  a  report  of  such  examination  and  their 
recommendation.  And  if  they  report  that  such  files  of  papers,  or  any  part 
thereof,  are  not  needed  or  useful  in  the  transaction  of  the  current  business  of 
such  Department,  and  have  no  permanent  value  or  historical  interest,  then  it 
shall  be  the  duty  of  such  head  of  the  Department  to  sell  as  waste  paper,  or 
otherwise  dispose  of  such  files  of  papers  upon  the  best  obtainable  terms  after 
due  publication  of  notice  inviting  proposals  therefor,  and  receive  and  pay  the 

1202 


Pt.  S.  STATUTES  AT  LARGE. 


Feb.  7,   1890. 


March  3, 1915  (38  Stat. ,  929').     See  also  note 
to  section  418,  Revised  Statutes. 


proceeds  thereof  into  the  Treasury  of  the  United  States,  and  make  report  thereof 
to  Congress. —  (25  Stat.,  672,  chap.  171.) 

See  acts  of  March  2,  1895  (28  Stat.,  933),  Febru- 
ary 16,  1909,  section  14  (35  Stat.,  622), 
August  22,  1912  (37  Stat.,  329-330),  and 

[1889,  Mar.  1.  Outfits  on  first  enlistment.]  That  in  order  to  encourage 
the  enlistment  of  boys  as  apprentices  in  the  United  States  Navy,  the  Secre- 
tary of  the  Navy  is  hereby  authorized  to  furnish  as  a  bounty  to  each  of  said 
apprentices  after  his  enhstment,  and  when  first  received  on  board  of  a  training- 
ship,  an  outfit  of  clothing  not  to  exceed  in  value  the  sum  of  forty-five  dollars. — 
(25  Stat.,  781,  chap.  331.) 

of  the  Navy  an  imperative  obligation  and  not 
merely  discretionary  power.  The  whole  pur- 
pose of  the  act  is  to  "encourage  the  enlistment 
of  boys  as  apprentices  in  the  I'nited  States 
Navy,"  and  upon  the  Secretary  of  the  Navy  is 
imposed  the  duty  of  executing  the  provisions 
of  the  statute.  (25  Op.  Attv.  Gen.,  270,  273. 
See  note  to  act  of  June  29,  1906,  34  Stat.,  553, 
as  to  refund  of  enlistment  bounty.) 


See  notes  to  sections  1418,  1569,  and  3689  Re- 

\i8ed  Statutes;  and  see  act  of  March  3, 1915 

(38  Stat.,   932),   and  note  thereto. 
See  note  to  section  1556,  Re^'ised  Statutes,  as  to 

uniform   gratuity   of   the   Naval    Reserve 

Force. 
Furnishing  of  bounty  held  mandatory. — 
The  language  used  by  Congress  in  this  act  is 
to  be  construed  as  imposing  upon  the  Secretary 

[1889,  Mar.  2.  Supplies  on  hand;  report  to  Congress.]  It  shall  be  the  duty 
of  the  Bureau  of  Provisions  and  Clothing  to  cause  property  accounts  to  be  kept 
of  all  the  supplies  pertaining  to  the  naval  establishment,  and  to  report  annually 
to  Congress  the  money  values  of  the  supplies  on  hand  at  the  various  stations  at 
the  beginning  of  the  fiscal  year,  the  dispositions  thereof,  and  of  the  purchases, 
and  the  expenditures  of  supplies  for  the  year,  and  the  balances  remaining  on 
hand  at  the  end  thereof.— (25  Stat.,  817-818,  chap.  371.) 

See  note  to  section  419,  ReWsed  Statutes,  as  to  See  acts  of  June  25, 1910  (36  Stat.,  792),  March 4, 

change  in  designation  of  the  Bureau  of  Pro-  1911  (36  Stat.,  1279),  June  30, 1914  (38  Stat., 

^•isionsand  Clothing,  and  as  to  the  duties  of  405),  and  March  1,  1921  (41  Stat.,  1169),  as 

that  bureau.  to  the  "  Naval  supply  account "  and  "Naval 

See  note  to  section  429,  Rexised  Statutes,  as  supply  account  fund." 
to  annual  reports  to  Congress. 

[1889,  Mar.  2.  Transfer  of  accumulated  supplies.]  And  for  the  purpose 
of  utilizing  accumulated  naval  supplies,  the  transfer  is  authorized,  after  requi- 
sition upon  the  Paymaster-General  of  the  Navy,  of  any  supplies  belongmg  to 
one  bureau  and  available  for  the  use  of  another  without  reimbursement  therefor 
by  the  bureau  receiving  the  supplies  so  transferred:  Provided,  That  supplies 
obtained  for  a  specific  object  and  still  needed  therefor,  and  supplies  bought 
within  the  fiscal  year  in  which  the  requisition  is  made,  and  provisions,  clothing, 
and  small  stores  shall  not  be  subject  to  transfer  without  charge  under  the  terms 
of  this  act.— (25  Stat.,  818,  chap.  371.) 


to  the  "Naval  supply  account "'  and  "Naval 
supply  account  fund."  See  also  section 
3718,  Re\ised  Statutes,  as  to  purchase  of 
supplies. 


See  act  of  March  2, 1891  (26  Stat.,  807),  and  note 
to  section  418,  Revised  Statutes;  see  also 
acts  of  June  25, 1910  (36  Stat. ,  792),  March  4, 
1911  (36  Stat. ,  1279),  June  30, 1914  (38  Stat., 
405),  and  March  1,  1921  (41  Stat.,  1169),  as 

[1890,  Feb.  7.  Certificates  in  lieu  of  lost  discharges.]  That  from  and  after 
the  passage  of  this  act,  whenever  satisfactory  proof  is  furnished  at  the  Navy  De- 
partment that  any  conmiissioned  officer,  regular  or  volunteer,  appointed  or  en- 
listed man  who  served  in  the  Navy  or  the  Marine  Corps  of  the  United  States  in 
the  war  of  eighteen  hundred  and  twelve,  the  Mexican  war,  or  the  war  of  the  re- 


1203 


Aug.   19,   1890.  Pi.  S.  ISTATUTES  AT  LARGE.  Navigation. 

hellion,  has  lost  his  certificate  of  discharge,  or  the  same  has  been  destroyed 
without  his  privity  or  procurement,  the  Secretary  of  the  Navy  shall  be  author- 
ized to  furnish  to  such  commissioned  officer,  regular  or  volunteer,  appointed  or 
enlisted  man,  a  certificate  of  discharge  in  lieu  thereof.  Provided,  That  such  cer- 
tificate shall  not  be  accepted  as  a  voucher  for  the  payment  of  any  claim  against 
the  United  States  for  pay,  bounty,  or  any  other  allowance,  or  as  evidence  in  any 
other  case. — (26  Stat.,  6,  chap.  8.) 

See  notes  to  sections  1426  and  1427,  Revised  Statutes. 

[1890,  Apr.  30,  sec.  3.  Acquisition  of  collections  for  National  Zoological 
Park.]  That  the  heads  of  executive  departments  of  the  Government  are  hereby 
authorized  and  directed  to  cause  to  be  rendered  all  necessary  and  practicable 
aid  to  the  said  regents  in  the  acquisition  of  collections  for  the  Zoological  Park. — 
(26  Stat.,  78  chap.  173.) 

The  words ' '  said  regents  "  refer  to  the  regents  of  the  Smithsonian  Institution. 

[1890,  June  30.  Sale  of  condemned  Naval  Supplies,  etc.]  The  Secretary  of 
the  Navy  is  hereby  authorized  to  sell,  after  advertisement  of  the  sale  for  such 
time  as  in  his  judgment  the  public  interests  may  require,  condemned  naval  sup- 
plies, stores,  and  materials,  either  by  public  auction  or  by  advertisement  for 
sealed  proposals  for  the  purchase  of  the  same. — (26  Stat.,  194,  chap.  640.) 

See  sections  1541,   3618,  and  3692,  Revised  Statutes,  and  notes  thereto;  see  also  acts  of 
August  5,  1882,  section  2  (22  Stat.,  296),  and  March  2,  1905(33  Stat.,  41). 

[1890,  June  30.  Clothing  and  small  stores  fund.]  Bureau  of  provisions  and 
clothing.  *  *  *  And  the  clothing  fund  and  small  stores  fund  shall  be  here- 
after consolidated  and  administered  as  a  fund  to  be  known  as  the  clothing  and 
small  stores  fund. — (26  Stat.,  197,  chap.  640.) 

See  act  of  February  14, 1879  (20  Stat.,  288),  and       See  note  to  section  419,  Revised  Statutes,  as  to 
note  to  section   3689,    Revised   Statutes.  change  in  designation  of  the  Bureau  of  Pro- 

visions and  Clothing  in  the  Navy  Depart- 
ment. 

[1890,  July  11.  Assistant  Secretary  of  the  Navy.]  For  an  assistant  Secretary 
of  the  Navy,  to  be  appointed,  from  civil  life,  by  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate     *     *     *. — (26  Stat.,  254,  chap.  667.) 

See  act  of  March  3,  1891  (26  Stat.,  934),  and  see  note  to  section  415,  Revised  Statutes. 

[1890,  July  11,  Sec.  2.  IneflBlcient  employees,  report  to  Congress.]  That  here- 
after it  shall  be  the  duty  of  the  heads  of  the  several  executive  departments  of  the 
Government  to  report  to  Congress  each  year  in  the  annual  estimates  the  num- 
ber of  employees  in  each  bureau  and  office  and  the  salaries  of  each  who  are 
below  a  fair  standard  of  efficiency. — (26  Stat.,  268,  chap.  667.) 
See  sections  429  and  430,  Revised  Statutes,  and  notes  thereto. 

[1890,  Aug.  19.  Regulations  for  preventing  collisions  at  sea.]  That  the  follow- 
ing regulations  for  preventmg  coUisions  at  sea  shall  be  followed  by  all  public 
and  private  vessels  of  the  United  States  upon  the  high  seas  and  in  all  waters 
connected  therewith,  navigable  by  sea-going  vessels. — (26  Stat.,  320,  chap.  802.) 

of  laws,  so  far  as  applicable  to  the  naviga- 
tion of  the  Great  Lakes  and  their  connect- 
ing and  tributary  waters  as  far  east  as  Mont- 
real, inconsistent  with  tlie  foregoing  rules." 


The  act  of  February  8,  1895  (28  Stat.,  645), 
establishing  rules  "to  regulate  na\dgation 
on  the  Great  Lakes  and  their  connecting 
and  tributary  waters,"  repealed  in  section 
4  thereof  (28  Stat.,  650),  "all  laws  or  parts 


1204 


Navigation. 


Ft.  3.  STATUTES  AT  LARGE 


Aug.  19,  1890. 


Navigation  on  the  Red  River  of  the  North  and 
rivers  emptying  into  the  Gulf  of  Mexico 
and  their  tributaries:  See  sections  4233  and 
4412,  Re\dsed  Statutes,  and  notes  thereto. 

Navigation  on  the  Great  Lakes  and  their  con- 
necting and  tributary  waters  as  far  east  as 
Montreal:  See  act  of  February  8,  1895 
(28  Stat.,  645),  and  notes  thereto. 

Na\'igation  on  all  harbors,  rivers,  and  inland 
waters  of  the  United  States,  except  the 
Great  Lakes  and  their  connecting  and 
tributary  waters  as  far  east  as  Montreal, 
and  except  the  Red  River  of  the  North  and 


rivers  emptj-ing  into  the  Gulf  of  Mexico 
and  their  tributaries:  See  act  of  June  7, 
1897  (30  Stat.,  96). 

Navigation,  Pearl  Harbor,  Hawaii:  See  act  of 
August  22,  1912  (37  Stat.,  341). 

Rules  governing  motor  boats:  See  act  of  June 
9,  1910  (36  Stat.,  462). 

See,  generally,  notes  to  sections  4233  and  4412, 
Revised  Statutes;  and  Navy  Regulations, 
1920  (chapter  55),  quoting  laws,  and  regu- 
lations of  the  Department  of  Commerce, 
"for  preventing  collisions,"  etc. 


PRELIMINARY. 

In  the  following  rules  every  steam-vessel  which  is  under  sail  and  not 
under  steam  is  to  be  considered  a  sailing-vessel,  and  every  vessel  under  steam, 
whether  under  sail  or  not,  is  to  be  considered  a  steam-vessel. 

The  word  ''steam-vessel"  shall  include  any  vessel  propelled  by  ma- 
chinery. 

A  vessel  is  ''under  way"  within  the  meaning  of  these  rules  when  she  is 
not  at  anchor,  or  made  fast  to  the  shore,  or  aground. — (26  Stat.,  320-321,  chap. 
802.) 

RULES    CONCER]S^NG    LIGHTS,  AND    SO    FORTH. 

The  word  '"visible"  in  these  rules  when  applied  to  lights  shall  mean 
visible  on  a  dark  night  with  a  clear  atmosphere. 

Article  1.  The  rules  concerning  lights  shall  be  complied  with  in  all 
weathers  from  sunset  to  sunrise,  and  during  such  time  no  other  lights  which 
may  be  mistaken  for  the  prescribed  light  shall  be  exhibited. — (26  Stat.,  321, 
chap.  802.) 

Art.  2. — A  steam-vessel  when  under  way  shall  carry — (a)  On  or  in 
front  of  the  foremast,  or  if  a  vessel  without  a  foremast,  then  in  the  fore  part 
of  the  vessel,  at  a  height  above  the  hull  of  not  less  than  twenty  feet,  and  if  the 
breadth  of  the  vessel  exceeds  twenty  feet,  then  at  a  height  above  the  hull  not 
less  than  such  breadth,  so,  however,  that  the  light  need  not  be  carried  at  a 
greater  height  above  the  hull  than  forty  feet,  a  bright  white  light,  so  constructed 
as  to  show  an  unbroken  light  over  an  arc  of  the  horizon  of  twenty  points  of  the 
compass,  so  fixed  as  to  throw  the  light  ten  points  on  each  side  of  the  vessel, 
namely,  from  right  ahead  to  two  points  abaft  the  beam  on  either  side,  and  of 
such  a  character  as  to  be  visible  at  a  distance  of  at  least  five  miles. 

(b)  On  the  starboard  side  a  green  light  so  constructed  as  to  show  an 
unbroken  light  over  an  arc  of  the  horizon  of  ten  points  of  the  compass,  so 
fixed  as  to  throw  the  light  from  right  ahead  to  two  points  abaft  the  beam 
on  the  starboard  side,  and  of  such  a  character  as  to  be  visible  at  a  distance 
of  at  least  two  miles. 

(c)  On  the  port  side  a  red  light  so  constructed  as  to  show  an  unbroken 
light  over  an  arc  of  the  horizon  of  ten  points  of  the  compass,  so  fixed  as  to 
throw  the  light  from  right  ahead  to  two  points  abaft  the  beam  on  the  port  side, 
and  of  such  a  character  as  to  be  visible  at  a  distance  of  at  least  two  miles. 

(d)  The  said  green  and  red  side-lights  shall  be  fitted  with  inboard  screens 
projecting  at  least  three  feet  forward  from  the  light,  so  as  to  prevent  these 
lights  from  being  seen  across  the  bow. 

1205 


Aug.  19,  1890.  Pt.  3.  STATUTES  AT  LARGE.  Navigation. 

(e)  A  steam-vcssol  when  under  way  may  carry  an  additional  white  light 
similar  in  construction  to  the  light  mentioned  in  subdivision  (a).  These  two 
lights  shall  be  so  placed  in  line  with  the  keel  that  one  shall  be  at  least  fifteen 
feet  higher  than  the  other,  and  in  such  a  position  with  reference  to  each  other 
that  the  lower  light  shall  be  forward  of  the  upper  one.  The  vertical  distance 
between  these  lights  shall  be  less  than  the  horizontal  distance. — (26  Stat.,  321, 
chap.  802.) 

Art.  3.  A  steam-vessel  when  towing  another  vessel  shall,  in  addition 
to  her  side-lights,  carry  two  bright  white  lights  in  a  vertical  line  one  over  the 
other,  not  less  than  six  feet  apart,  and  when  towing  more  than  one  vessel  shall 
carry  an  additional  bright  white  light  six  feet  above  or  below  such  light,  if  the 
length  of  the  tow  measuring  from  the  stern  of  the  towing  vessel  to  the  stem 
of  the  last  vessel  towed  exceeds  six  hundred  feet.  Each  of  these  lights  shall 
be  of  the  same  construction  and  character,  and  shall  be  carried  in  the  same  posi- 
tion as  the  white  light  mentioned  in  article  two  (a),  excepting  the  additional 
light,  which  may  be  carried  at  a  height  of  not  less  than  fourteen  feet  above  the 
hull. 

Such  steam-vessel  may  carry  a  small  white  light  abaft  the  funnel  or 
aftermast  for  the  vessel  towed  to  steer  b}-,  but  such  light  shall  not  be  visible 
forward  of  the  beam.— (26  Stat.,  321,  chap.  802.) 

Art.  4.  (a)  A  vessel  which  from  any  accident  is  not  under  command 
shall  carry  at  the  same  height  as  a  white  light  mentioned  in  article  two  (a), 
where  they  can  best  be  seen,  and  if  a  steam-vessel  in  lieu  of  that  light,  two  red 
lights,  in  a  vertical  line  one  over  the  other,  not  less  than  six  feet  apart,  and  of 
such  a  character  as  to  be  visible  all  around  the  horizon  at  a  distance  of  at  least 
two  miles;  and  shall  by  day  carry  in  a  vertical  line  one  over  the  other,  not  less 
than  six  feet  apart,  where  they  can  best  be  seen,  two  black  balls  or  shapes, 
each  two  feet  in  diameter. 

(b)  A  vessel  employed  in  laying  or  in  picking  up  a  telegraph  cable  shall 
carry  in  the  same  position  as  the  white  light  mentioned  in  article  two  (a), 
and  if  a  steam-vessel  in  lieu  of  that  light,  three  lights  in  a  vertical  line  one  over 
the  other  not  less  than  six  feet  apart.  The  highest  and  lowest  of  these  lights 
shall  be  red,  and  the  middle  light  shall  be  white,  and  they  shall  be  of  such  a 
character  as  to  be  visible  all  around  the  horizon,  at  a  distance  of  at  least  two 
nules.  By  day  she  shall  carry  in  a  vertical  line,  one  over  the  other,  not  less 
than  six  feet  apart,  where  they  can  best  be  seen,  three  shapes  not  less  than  two 
feet  in  diameter,  of  which  the  highest  and  lowest  shall  be  globular  in  shape  and 
red  in  color,  and  the  middle  one  diamond  in  shape  and  white. 

(c)  The  vessels  referred  to  in  this  article,  when  not  making  way  through 
the  water,  shall  not  carry  the  side-lights,  but  when  making  way  shall  carry 
them. 

(d)  The  lights  and  shapes  required  to  be  shown  by  this  article  are  to  be 
taken  by  other  vessels  as  signals  that  the  vessel  showing  them  is  not  under 
command  and  can  not  therefore  get  out  of  the  way. 

These  signals  are  not  signals  of  vessels  in  distress  and  requiring  assistance. 
Such  signals  are  contained  in  article  thirty-one. — (26  Stat.,  322,  chap.  802.) 

Art.  5.  A  sailing-vessel  under  way  and  any  vessel  being  towed  shall 
carry  the  same  lights  as  are  prescribed  by  article  two  for  a  steam-vessel  under 

1206 


Navigation.  Pt.  3.  STATUTES  AT  LARGE.  Aug.  19,  1890. 

way,  with  the  exception  of  the  white  hghts  mentioned  therein,  which  they 
shall  never  carry.— (26  Stat.,  322,  chap.  802.) 

Art.  6.  Whenever,  as  in  the  case  of  small  vessels  under  way  during  bad 
weather,  the  green  and  red  side-lights  can  not  be  fixed,  these  lights  shall  be 
kept  at  hand,  lighted  and  ready  for  use;  and  shall,  on  the  approach  of  or  to 
other  vessels,  be  exhibited  on  their  respective  sides  in  sufficient  time  to  pre- 
vent collision,  in  such  manner  as  to  make  them  most  visible,  and  so  that  the 
green  light  shall  not  be  seen  on  the  port  side  nor  the  red  light  on  the  starboard 
side,  nor,  if  practicable,  more  than  two  points  abaft  the  beam  on  their  respec- 
tive  sides. 

To  make  the  use  of  these  portable  lights  more  certain  and  easy  the  lan- 
terns containing  them  shall  each  be  painted  outside  with  the  color  of  the  light 
they  respectively  contain,  and  shall  be  provided  with  proper  screens. — (26 
Stat.,  322,  chap.  802.) 

Art.  7.  Steam  vessels  of  less  than  forty,  and  vessels  under  oars  or  sails 
of  less  than  twenty  tons  gross  tonnage,  respectively,  and  rowing  boats,  when 
under  way,  shall  not  be  required  to  carry  the  lights  mentioned  in  article  two 
(a) ,  (b) ,  and  (c) ,  but  if  they  do  not  cany  them  they  shall  be  provided  with  the 
following  lights: 

"First.  Steam  vessels  of  less  than  forty  tons  shall  carry — 

"  (a)  In  the  fore  part  of  the  vessel,  or  on  or  in  front  of  the  funnel,  where 
it  can  best  be  seen,  and  at  a  height  above  the  gunwale  of  not  less  than  nine  feet, 
a  bright  white  light  constructed  and  fixed  as  prescribed  in  article  two  (a),  and 
of  such  a  character  as  to  be  visible  at  a  distance  of  at  least  two  miles. 

"  (b)  Green  and  red  side-lights  constructed  and  fLxed  as  prescribed  in 
article  two  (b)  and  (c),  and  of  such  a  character  as  to  be  visible  at  a  distance  of 
at  least  one  mile,  or  a  combined  lantern  showing  a  green  light  and  a  red  light 
from  right  ahead  of  two  points  abaft  the  beam  on  their  respective  sides.  Such 
lanterns  shall  be  carried  not  less  than  three  feet  below  the  white  light. 

''Second.  Small  steamboats,  such  as  are  carried  by  seagoing  vessels,  may 
carry  the  white  light  at  a  less  height  than  nine  feet, above  the  gunwale,  but  it 
shall  be  carried  above  the  combined  lantern  mentioned  in  subdivision  one  (b)". 

''Third.  Vessels  under  oars  or  sails  of  less  than  twenty  tons  shall  have 
ready  at  hand  a  lantern  with  a  green  glass  on  one  side  and  a  red  glass  on  the 
other,  which,  on  the  approach  of  or  to  other  vessels,  shall  be  exhibited  in  suffi- 
cient time  to  prevent  collision,  so  that  the  green  light  shall  not  be  seen  on  the 
port  side  nor  the  red  light  on  the  starboard  side. 

"Fourth.  Rowing  boats,  whether  under  oars  or  sail,  shall  have  ready 
at  hand  a  lantern  showing  a  white  light  which  shall  be  temporarily  exhibited 
in  sufficient  time  to  prevent  collision. 

"The  vessels  referred  to  in  this  article  shall  not  be  obfiged  to  carry  the 
lights  prescribed  by  article  four  (a)  and  article  eleven,  last  paragraph. — (26 
Stat.,  322-323,  chap.  802;  28  Stat.,  82-83,  chap.  83.) 

This  article  was  expressly  amended  and  reenacted  to  read  as  above,  by  act  of  May  28, 1894. 

(28  Stat.,  82-83.) 

Art.  8.  Pilot  vessels  when  engaged  on  their  station  on  pilotage  duty 
shall  not  show  the  lights  required  for  other  vessels,  but  shall  carry  a  white 

1207 


Aug.  19,  1890.  rt.  S.  STATUTES  AT  LARGE.  Navigation. 

light  at  the  masthead,  visible  all  around  the  horizon,  and  shall  also  exhibit  a 
flare-up  li<::ht    at   short  intervals,  which  shall  never  exceed  fifteen  minutes. 

On  the  near  apj)roach  of  or  to  other  vessels  they  shall  have  their  side 
lights  lighted,  ready  for  use,  and  shall  flash  or  show  them  at  short  intervals, 
to  indicate  the  tlirection  in  which  they  are  heading,  but  the  green  light  shall  not 
be  shown  on  the  port  side,  nor  the  red  light  on  the  starboard  side. 

A  pilot-vessel  of  such  a  class  as  to  be  obliged  to  go  alongside  of  a  vessel 
to  put  a  pilot  on  board  may  show  the  white  light  instead  of  canying  it  at  the 
masthead,  and  may,  instead  of  the  colored  lights  above  mentioned,  have  at 
hand,  ready  for  use,  a  lantern  with  a  green  glass  on  the  one  side  and  a  red  glass 
on  the  other,  to  be  used  as  prescribed  above. 

Pilot-vessels  when  not  engaged  on  their  station  on  pilotage  duty  shall  carry 
lights  similar  to  those  of  other  vessels  of  their  tonnage. — (26  Stat.,  323,  chap. 
802.) 


lights  required  for  all  pilot  boats  the  red 
light  above  mentioned,  but  not  the  colored 
side  lights. 

' '  When  not  engaged  on  her  station  on  pilotage 
dnty,  she  shall  carry  the  same  lights  as 
other  steam  vessels. 

"Sec.  2.  That  this  Act  shall  be  construed  as 
supplementary  to  article  eight  of  the  Act 
approved  June  seventh,  eighteen  hundred 
and  ninety-seven,  entitled  'An  Act  to 
adopt  regulations  for  preventing  collisions 
upon  certain  harbors,  rivers,  and  inland 
waters  of  the  United  States, '  and  to  article 
eight  of  an  Act  approved  August  nine- 
teenth, eighteen  hundred  and  ninety, 
entitled  'An  Act  to  adopt  regulations  for 
preventing  collisions  at  sea.' '' 


By  act  of  February'  19,  1900  (31  Stat.,  30-31), 

which  was  expressly  "supplementary"  to 

this   article,    it   was   provided:  "That   a 

steam  pilot  vessel,  when  engaged  on  her 

station  on  pilotage  duty  and  in  waters  of  the 

United  States,  and  not  at  anchor,  shall,  in 

addition  to  the  lights  required  for  all  pilot 

boats,  carry  at  a  distance  of  eight  feet  below 

her  white  masthead  light  a  red  light,  visible 

all  aroimd  the  horizon  and  of  such  a  charac- 
ter as  to  be  \'i8ible  on  a  dark  night  with  a 

clear  atmosphere  at  a  distance  of  at  least 

two  miles,  and  also  the  colored  side  lights 

required  to  be   carried   by  vessels  when 

imder  way. 
"When  engaged  on  her  station  on  pilotage  duty 

and  in  waters  of  the  United  States,  and  at 

anchor,  she  shall  carry  in  addition  to  the 

Article  9.  Fishing  vessels  and  fishing  boats,  when  under  way  and  when 
not  required  by  this  article  to  carry  or  show  the  lights  hereinafter  specified, 
shall  carry  or  show  the  lights  prescribed  for  vessels  of  their  tonnage  under  way. 

(a)  Open  boats,  by  which  is  to  be  understood  boats  not  protected  from 
the  entry  of  sea  water  by  means  of  a  continuous  deck,  when  engaged  in  any 
fishing  at  night,  with  outlying  tackle  extending  not  more  than  one  hundred 
and  fifty  feet  horizontally  from  the  boat  into  the  seaway,  shall  carry  one  all- 
round  white  light. 

Open  boats,  when  fishing  at  night,  with  outlying  tackle  extending  more  than 
one  hundred  and  fifty  feet  horizontally  from  the  boat  into  the  seaway,  shall 
carry  one  all-round  white  light,  and  in  addition,  on  approaching  or  being 
approached  by  other  vessels,  shall  show  a  second  white  light  at  least  three  feet 
below  the  first  light  and  at  a  horizontal  distance  of  at  least  five  feet  away  from 
it  in  the  direction  in  which  the  outlying  tackle  is  attached. 

(b)  Vessels  and  boats,  except  open  boats  as  defined  in  subdivision  (a), 
when  fishing  with  drift  nets,  shall,  so  long  as  the  nets  are  wholly  or  partly  in  the 
water,  carry  two  white  lights  where  they  can  best  be  seen.  Such  lights  shall 
be  placed  so  that  the  vertical  distance  between  them  shall  be  not  less  than  six 
feet  and  not  more  than  fifteen  feet,  and  so  that  the  horizontal  distance  between 
them,  measured  in  a  line  with  the  keel,  shall  be  not  less  than  five  feet  and  not 
more  than  ten  feet.     The  lower  of  these  two  lights  shall  be  in  the  direction  of  the 

1208 


Navigation.  Pt.  3.  STATUTES  AT  LARGE.  Aug.  19,  1890. 

nets,  and  both  of  them  shall  be  of  such  a  character  as  to  show  all  around  the 
horizon,  and  to  be  visible  at  a  distance  of  not  less  than  three  miles. 

Within  the  Mediterranean  Sea  and  in  the  seas  bordering  the  coasts  of 
Japan  and  Korea  sailing  fishing  vessels  of  less  than  twenty  tons  gross  tonnage 
shall  not  be  obliged  to  carry  the  lower  of  these  two  lights.  Should  they,  how- 
ever, not  carry  it,  they  shall  show  in  the  same  position  (in  the  direction  of  the 
net  or  gear)  a  white  light,  visible  at  a  distance  of  not  less  than  one  sea  mile,  on 
the  approach  of  or  to  other  vessels. 

(c)  Vessels  and  boats,  except  open  boats  as  defined  in  subdivision  (a) 
when  line  fishing  with  their  lines  out  and  attached  to  or  hauling  their  lines, 
and  when  not  at  anchor  or  stationary  within  the  meaning  of  subdivision  (h), 
shall  carry  the  same  lights  as  vessels  fishing  with  drift  nets.  When  shooting 
lines,  or  fishing  with  towing  lines,  they  shall  carry  the  lights  prescribed  for  a 
steam  or  sailing  vessel  under  way,  respectively. 

Within  the  Mediterranean  Sea  and  in  the  seas  bordering  the  coasts  of 
Japan  and  Korea  sailing  fishing  vessels  of  less  than  twenty  tons  gross  tonnage 
shall  not  be  obliged  to  carry  the  lower  of  these  two  lights.  Should  they,  how- 
ever, not  carry  it,  they  shall  show  in  the  same  position  (in  the  direction  of  the 
lines)  a  white  light,  visible  at  a  distance  of  not  less  than  one  sea  mile  on  the 
approach  of  or  to  other  vessels. 

(d)  Vessels  when  engaged  in  trawling,  by  which  is  meant  the  dragging  of 
an  apparatus  along  the  bottom  of  the  sea — 

First.  If  steam  vessels,  shall  carry  in  the  same  position  as  the  the  white 
light  mentioned  in  article  two  (a)  a  tri-colored  lantern  so  constructed  and 
fixed  as  to  show  a  white  light  from  right  ahead  to  two  points  on  each  bow, 
and  a  green  light  and  a  red  light  over  an  arc  of  the  horizon  from  two  points 
on  each  bow  to  two  points  abaft  the  beam  on  the  starboard  and  port  sides, 
respectively;  and  not  less  than  six  nor  more  than  twelve  feet  below  the  tri- 
colored  lantern  a  white  light  in  a  lantern,  so  constructed  as  to  show  a  clear, 
uniform,  and  unbroken  light  all  around  the  horizon. 

Second.  If  sailing  vessels,  shall  carry  a  white  light  in  a  lantern,  so  con- 
structed as  to  show  a  clear,  uniform,  and  unbroken  light  all  around  the  horizon, 
and  shall  also,  on  the  approach  of  or  to  other  vessels,  show  where  it  can  best  be 
seen  a  white  flare-up  light  or  torch  in  sufficient  time  to  prevent  collision. 

All  lights  mentioned  in  subdivision  (d)  first  and  second  shall  be  visible  at 
a  distance  of  at  least  two  miles. 

(e)  Oyster  dredgers  and  other  vessels  fishing  with  dredge  nets  shall  carry 
and  show  the  same  lights  as  trawlers. 

(f)  Fishing  vessels  and  fishing  boats  may  at  any  time  use  a  flare-up  light 
in  addition  to  the  lights  which  they  are  by  this  article  required  to  carry  and 
show,  and  they  may  also  use  working  lights, 

(g)  Every  fishing  vessel  and  every  fishing  boat  under  one  hundred  and 
fifty  feet  in  length,  when  at  anchor,  shall  exhibit  a  white  light  visible  all  around 
the  horizon  at  a  distance  of  at  least  one  mile. 

Every  fishing  vessel  of  one  hundred  and  fifty  feet  in  length  or  upward, 
when  at  anchor,  shall  exhibit  a  white  light  visible  all  around  the  horizon  at 
a  distance  of  at  least  one  mile,  and  shall  exhibit  a  second  light  as  provided  for 
vessels  of  such  length  by  article  eleven. 

1209 


Aug.    19,   1890. 


Pt.  S.  STATUTES  AT  LARGE. 


Navigation. 


Should  any  such  vessel,  whether  under  one  hundred  and  fifty  feet  in 
lenp;th  or  of  one  hundred  and  fifty  feet  in  length  or  upward,  be  attached  to 
a  net  or  other  fishing  gear,  she  shall  on  the  approach  of  other  vessels  show  an 
additional  white  light  at  least  three  feet  below  the  anchor  light,  and  at  a  hori- 
zontal distance  of  at  least  five  feet  away  from  it  in  the  direction  of  the  net  or 


gear. 


(h)  If  a  vessel  or  boat  when  fishing  becomes  stationary  in  consequence 
of  her  gear  getting  fast  to  a  rock  or  otner  obstruction,  she  shall  in  daytime 
haul  down  the  day  signal  required  by  subdivision  (k) ;  at  night  show  tlie  light 
or  lights  prescribed  for  a  vessel  at  anchor;  and  during  fog,  mist,  falling  snow, 
or  heavy  rain  storms  make  the  signal  prescribed  for  a  vessel  at  anchor.  (See 
subdivision  (d)  and  the  last  paragraph  of  article  fifteen.) 

(i)  In  fog,  mist,  falling  snow,  or  heavy  rain  storms  drift-net  vessels  attached 
to  their  nets,  and  vessels  when  trawling,  dredging,  or  fishing  with  any  kind 
of  a  drag  net,  and  vessels  line  fishing  with  their  lines  out,  shall,  if  of  twenty 
tons  gross  tonnage  or  upward,  respectively,  at  intervals  of  not  more  than  one 
minute  make  a  blast;  if  steam  vessels,  with  the  whistle  or  siren,  and  if  sailing 
vessels,  with  the  fog-horn,  each  blast  to  be  followed  by  ringing  the  bell.  Fish- 
ing vessels  and  boats  of  less  than  twenty  tons  gross  tonnage  shall  not  be  obliged 
to  give  the  above-mentioned  signals;  but  if  they  do  not,  they  shall  make  some 
other  efficient  sound  signal  at  intervals  of  not  more  than  one  minute. 

(k)  All  vessels  or  boats  fishing  with  nets  or  lines  or  trawls,  when  under  way, 
shall  in  daytime  indicate  their  occupation  to  an  approaching  vessel  by  dis- 
playing a  basket  or  other  efficient  signal  where  it  can  best  be  seen.  If  vessels 
or  boats  at  anchor  have  their  gear  out,  they  shall,  on  the  approach  of  other 
vessels,  show  the  same  signal  on  the  side  on  which  those  vessels  can  pass. 

The  vessels  required  by  this  article  to  carry  or  show  the  lights  herein- 
before specified  shall  not  be  obliged  to  carry  the  lights  prescribed  by  article 
four  (a)  and  the  last  paragraph  of  article  eleven. — (26  Stat.,  323-324,  chap.  802; 
28  Stat.,  83,  chap.  83;  34  Stat.,  850-852,  chap.  300.) 


The  original  article  9  of  this  act  was  expressly 
repealed  by  act  of  May  28,  1894  (28  Stat., 
83);  and  the  article  given  above  was  ex- 


pressly inserted  in  the  original  act  of  August 
19,  1890,  as  article  9  thereof,  by  act  of 
January  19,  1907  (34  Stat.,  850-852). 


Art.  10.  A  vessel  which  is  being  overtaken  by  another  shall  show  from 
her  stern  to  such  last-mentioned  vessel  a  white  light  or  a  flare-up  light. 

The  white  light  required  to  be  shown  by  this  article  may  be  fixed  and 
carried  in  a  lantern,  but  in  such  case  the  lantern  shall  be  so  constructed,  fitted, 
and  screened  that  it  shall  throw  an  unbroken  light  over  an  arc  of  the  horizon  of 
twelve  points  of  the  compass,  namely,  for  six  points  from  right  aft  on  each  side 
of  the  vessel  so  as  to  be  visible  at  a  distance  of  at  least  one  mile.  Such  light 
shall  be  carried  as  nearly  as  practicable  on  the  same  level  as  the  side-lights. 
(26  Stat.,  324,  chap.  802.) 

Art.  11.  a  vessel  under  one  hundred  and  fifty  feet  in  length,  when  at 
anchor,  shall  carry  forward,  where  it  can  best  be  seen,  but  at  a  height  not 
exceeding  twenty  feet  above  the  hull,  a  white  light  in  a  lantern  so  constructed 
as  to  show  a  clear,  uniform,  and  unbroken  light  visible  all  around  the  horizon 
at  a  distance  of  at  least  one  mile. 


1210 


Navigation.  Ft.  3.  STATUTES  AT  LARGE.  Aug.  19,   1890. 

A  vessel  of  one  hundred  and  fifty  feet  or  upwards  in  length,  when  at 
anchor,  shall  carry  in  the  forward  part  of  the  vessel,  at  a  height  of  not  less  than 
twenty  and  not  exceeding  forty  feet  above  the  hull,  one  such  light,  and  at 
or  near  the  stern  of  the  vessel,  and  at  such  a  height  that  it  shall  be  not  less 
than  fifteen  feet  lower  than  the  forward  light,  another  such  light. 

The  length  of  a  vessel  shall  be  deemed  to  be  the  length  appearing  in  her 
certificate  of  registry. 

A  vessel  aground  in  or  near  a  fair-way  shall  carry  the  above  light  or  lights 
and  the  two  red  lights  prescribed  by  article  four  (a). — (26  Stat.,  324-325, 
chap.  802.) 

Art.  12.  Every  vessel  may,  if  necessary  in  order  to  attract  attention,  in 
addition  to  the  lights  which  she  is  by  these  rules  r3C{uired  to  carry,  show  a  flare- 
up  light  or  use  any  detonating  signal  that  can  not  be  mistaken  for  a  distress 
signal— (26  Stat.,  325,  chap.  802.) 

Art.  13.  Nothing  in  these  rules  shall  interfere  with  the  operation  of  any 
special  rules  made  by  the  Government  of  any  nation  with  respect  to  additional 
station  and  signal-lights  for  two  or  more  ships  of  war  or  for  vessels  sailing  under 
convoy,  or  with  the  exhibition  of  recognition  signals  adopted  by  ship  owners, 
which  have  been  authorized  by  their  respective  Governments  and  duly  regis- 
tered and  published.— (26  Stat.,  325,  chap.  802.) 

Art.  14.  A  steam-vessel  proceeding  under  sail  only  but  havmg  her  funnel 
up,  shall  carry  in  day-time,  forward,  where  it  can  best  be  seen,  one  black  ball 
or  shape  two  feet  in  diameter. — (26  Stat.,  325,  chap.  802.) 

SOUND  SIGNALS  FOR  FOG,  AND  SO  FORTH. 

Art.  15.  All  signals  prescribed  by  this  article  for  vessels  under  way  shall 
be  given: 

First.  By  "steam  vessels"  on  the  whistle  or  siren. 

Second.  By  "sailing  vessels"  and  "vessels  towed"  on  the  fog  horn. 

The  words  "prolonged  blast"  used  in  this  article  shall  mean  a  blast  of 
from  four  to  six  seconds  duration. 

A  steam  vessel  shall  be  provided  with  an  efficient  whistle  or  siren,  sounded 
by  steam  or  by  some  substitute  for  steam,  so  placed  that  the  sound  may  not  be 
intercepted  by  any  obstruction,  and  with  an  efficient  fog  horn,  to  be  sounded  by 
mechanical  means,  and  also  with  an  efficient  bell.  (In  all  cases  where  the  rules 
require  a  bell  to  be  used  a  drum  may  be  substituted  on  board  Turkish  vessels, 
or  a  gong  where  such  articles  are  used  on  board  small  seagoing  vessels.)  A 
sailing  vessel  of  twenty  tons  gross  tonnage  or  upward  shall  be  provided  with  a 
similar  fog  horn  and  bell. 

In  fog,  mist,  falling  snow,  or  heavy  rainstorms,  whether  by  day  or  night, 
the  signals  described  in  this  article  shall  be  used  as  follows,  namely : 

(a)  A  steam  vessel  having  way  upon  her  shall  sound,  at  intervals  of  not 
more  than  two  minutes,  a  prolonged  blast. 

(b)  A  steam  vessel  under  way,  but  stopped,  and  having  no  way  upon  her, 
shall  sound,  at  intervals  of  not  more  than  two  minutes,  two  prolonged  blasts, 
with  an  interval  of  about  one  second  between. 

(c)  A  sailing  vessel  under  way  shall  sound,  at  intervals  of  not  more  than 
one  minute,  when  on  the  starboard  tack,  one  blast;  when  on  the  port  tack,  two 

54641° --22^— 77  1211 


Aug.  19,  1890.  I't.  S.  STATUTES  AT  LARGE.  Navigation. 

blasts  in  succession,  and  when  with  the  wind  abaft  the  beam,  three  blasts  in 
succession. 

(d)  A  vessel  when  at  anchor  shall,  at  intervals  of  not  more  than  one 
minute,  ring  the  bell  rapidly  for  about  five  seconds. 

(e)  A  vessel  when  towing,  a  vessel  employed  in  laying  or  in  picking  up 
a  telegraph  cable,  and  a  vessel  under  way,  which  is  unable  to  get  out  of  the  way 
of  an  approaching  vessel  through  being  not  under  command,  or  unable  to  ma- 
neuver as  required  by  the  rules,  shall,  instead  of  the  signals  prescribed  in  sub- 
divisions (a)  and  (c)  of  this  article,  at  intervals  of  not  more  than  two  minutes, 
sound  three  blasts  in  succession,  namely:  One  prolonged  blast  followed  by  two 
short  blasts.  A  vessel  towed  may  give  this  signal  and  she  shall  not  give  any 
other. 

Sailing  vessels  and  boats  of  less  than  twenty  tons  gross  tonnage  shall  not 
be  obliged  to  give  the  above-mentioned  signals,  but,  if  they  do  not,  they  shall 
make  some  other  efficient  sound  signal  at  intervals  of  not  more  than  one 
minute.— (26  Stat.,  325-326,  chap.  802;  29  Stat.,  381,  chap,  401.) 

This  article  was  expressly  amended  and  reenacted  to  read   as  above   by   act  of  June  10, 
1896  (29  Stat.,  381). 

SPEED  OF  SHIPS  TO  BE  MODERATE  IN  FOG,  AND  SO  FORTH. 

Art.  16.  Every  vessel  shall,  in  a  fog,  mist,  falling  snow,  or  heavy  rain- 
storms, go  at  a  moderate  speed,  having  careful  regard  to  the  existing  circum- 
stances and  conditions, 

A  steam  vessel  hearing,  apparently  forward  of  her  beam,  the  fog-signal  of 
a  vessel  the  position  of  which  is  not  ascertained  shall,  so  far  as  the  circum- 
stances of  the  case  admit,  stop  her  engines,  and  then  navigate  with  caution 
until  danger  of  colhsion  is  over. —  (26  Stat.,  326,  chap.  802.) 

Steering  and  Sailing  Rules. 

PREU^VnNARr RISK  OF  COLLISION. 

Risk  of  collision  can,  when  circumstances  permit,  be  ascertained  by  care- 
fully watching  the  compass  bearing  of  an  approaching  vessel.  If  the  bearing 
does  not  appreciably  change,  such  risk  should  be  deemed  to  exist. 

Art.  17.  AVhen  two  sailing  vessels  are  approaching  one  another,  so  as  to 
involve  risk  of  collision,  one  of  them  shall  keep  out  of  the  way  of  the  other,  as 
follows,  namely: 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the  way  of  a  vessel 
which  is  close-hauled. 

(b)  A  vessel  which  is  close-hauled  on  the  port  tack  shall  keep  out  of  the 
way  of  a  vessel  which  is  close-hauled  on  the  starboard  tack. 

(c)  When  both  are  running  free,  with  the  wind  on  different  sides,  the 
vessel  which  has  the  wind  on  the  port  side  shall  keep  out  of  the  way  of  the  other. 

(d)  When  both  are  running  free,  with  the  wind  on  the  same  side,  the  vessel 
which  is  to  the  windward  shall  keep  out  of  the  way  of  the  vessel  which  is  to 
leeward. 

(e)  A  vessel  which  has  the  wind  aft  shall  keep  out  of  the  way  of  the  other 
vessel.— (26  Stat.,  326,  chap.  802.) 

1212 


Navigation.  Pt.  3.  STATUTES  AT  LARGE.  Aug.  19,  1890. 

Art.  18.  When,  two  steam-vessels  are  meeting  end  on,  or  nearly  end  on, 
so  as  to  involve  the  risk  of  collision,  each  shall  alter  her  course  to  starboard, 
so  that  each  may  pass  on  the  port  side  of  the  other. 

This  article  only  applies  to  cases  where  vessels  are  meeting  end  on,  or 
nearly  end  on,  in  such  a  manner  as  to  involve  risk  of  collision,  and  does  not 
apply  to  two  vessels  which  must,  if  both  keep  on  their  respective  courses,  pass 
clear  of  each  other. 

The  only  cases  to  which  it  does  apply  are  when  each  of  the  two  vessels  is 
end  on,  or  nearly  end  on,  to  the  other;  in  other  words,  to  cases  in  which,  by  day, 
each  vessel  sees  the  masts  of  the  other  in  a  line,  or  nearly  in  a  line,  with  her  owti; 
and  by  night,  to  cases  in  which  each  vessel  is  in  such  a  position  as  to  see  both 
the  side  lights  of  the  other. 

It  does  not  apply  by  day  to  cases  in  wliich  a  vessel  sees  another  ahead 
crossing  her  own  course ;  or  by  night,  to  cases  where  the  red  light  of  one  vessel 
is  opposed  to  the  red  light  of  the  other,  or  where  the  green  light  of  one  vessel  is 
opposed  to  the  green  light  of  the  other,  or  where  a  red  light  %vitliout  a  green 
light,  or  a  green  light  without  a  red  light,  is  seen  ahead,  or  where  both  green  and 
red  lights  are  seen  anywhere  but  ahead. — (26  Stat.,  326-327,  chap.  802.) 

Art.  19.  When  two  steam-vessels  are  crossing,  so  as  to  involve  risk  of 
collision,  the  vessel  which  has  the  other  on  her  o^vn  starboard  side  shall  keep 
out  of  the  way  of  the  other.— (26  Stat.,  327,  chap.  802.) 

Art.  20.  When  a  steam-vessel  and  a  sailing  vessel  are  proceeding  in  such 
directions  as  to  involve  risk  of  collision,  the  steam-vessel  shall  keep  out  of  the 
way  of  the  sailing-vessel. —  (26  Stat.,  327,  chap.  802.) 

Article  twenty-one.  Where,  by  any  of  these  rules,  one  of  two  vessels  is 
to  keep  out  of  the  way  the  other  shall  keep  her  course  and  speed. 

Note. — When,  in  consequence  of  thick  weather  or  other  causes,  such  vessel 
finds  herseK  so  close  that  collision  can  not  be  avoided  bv  the  action  of  the  givinor- 
wa}'  vessel  alone^  she  also  shall  take  such  action  as  will  best  aid  to  avert  col- 
lision. (See  articles  twenty-seven  and  twenty-nine.) — (26  Stat.,  327,  chap.  802; 
28  Stat.,  83,  chap.  83.) 

This  article  was  expressly  amended  and  reenacted  to  read  as  above  by  act  of  May  28,  1894 
(28  Stat.,  83). 

Art.  22.  Every  vessel  which  is  directed  by  these  rules  to  keep  out  of  the 
way  of  another  vessel  shall,  if  the  circumstances  of  the  case  admit,  avoid 
crossing  ahead  of  the  other. — (26  Stat.,  327,  chap.  802.) 

Art.  23.  Every  steam-vessel  which  is  directed  by  these  rules  to  keep  out  of 
the  way  of  another  vessel  shall,  on  approaching  her,  if  necessary,  slacken  her 
speed  or  stop  or  reverse. —  (26  Stat.,  327,  chap.  802.) 

Art.  24.  Notwithstanding  anything  contained  in  these  rules  every  vessel, 
overtaking  any  other,  shall  keep  out  of  the  way  of  the  overtaken  vessel. 

Every  vessel  coming  up  with  another  vessel  from  any  direction  more  than 
two  points  abaft  her  beam,  that  is  in  such  a  position,  with  reference  to  the 
vessel  which  she  is  overtaking  that  at  night  she  would  be  unable  to  see  either 
of  that  vessel's  side-lights,  shall  be  deemed  to  be  an  overtaking  vessel;  and  no 
subsequent  alteration  of  the  bearing  between  the  two  vessels  shall  make  the 
overtaking  vessel  a  crossing  vessel  within  the  meaning  of  these  rules,  or  relieve 

1213 


Aug.  19,   1890.  Pt.  .i.  STATUTES  AT  LARGE.  Navigation. 

her  of  the  duty  of  keeping  dear  of  llio  overtaken  vessel  until  she  is  finally 
passed  and  elear. 

As  by  day  tlie  overtaking  vessel  can  not  always  know  with  certainty 
whether  she  is  forward  of  or  abaft  this  direction  from  the  other  vessel  she 
should,  if  in  doubt,  assume  that  she  is  an  overtaking  vessel  and  keep  out  of 
th(>  way.— (26  Stat.,  327,  chap.  802.) 

Art.  25.  In  narrow  channels  every  steam-vessel  shall,  when  it  is  safe  and 
practicable,  keep  to  that  side  of  the  fair-way  or  mid-channel  which  lies  on  the 
starboard  side  of  such  vessel. — (26  Stat.,  327,  chap.  802.) 

Art.  26.  Sailing  vessels  under  way  shall  keep  out  of  the  way  of  sailing 
vessels  or  boats  fishing  with  nets,  or  lines,  or  trawds.  This  rule  shall  not  give 
to  any  vessel  or  boat  engaged  in  fishing  the  right  of  obstructing  a  fair-way  used 
by  vessels  other  than  fishing  vessels  or  boats. — (26  Stat.,  327,  chap.  802.) 

Art.  27.  In  obeying  and  construing  these  rules  due  regard  shall  be  had  to 
all  dangers  of  navigation  and  collision,  and  to  any  special  circumstances  which 
may  render  a  departure  from  the  above  rules  necessary  in  order  to  avoid 
immediate  danger.— (26  Stat.,  327,  chap.  802.) 

SOUND-SIGNALS    FOR    VESSELS    IN    SIGHT    OF    ONE    ANOTHER. 

Art.  28.  The  words  ''short  blast"  used  in  this  article  shall  mean  a  blast 

of  about  one  second's  duration. 

\^Tlen  vessels  are  in  sight  of  one  another,  a  steam-vessel  under  way,  in 

taking  any  course  authorized  or  required  by  these  rules,  shall  indicate  that 

course  by  the  following  signals  on  her  whistle  or  siren,  namely: 

One  short  blast  to  mean,  "I  am  directing  my  course  to  starboard." 

Two  short  blasts  to  mean,  "I  am  directing  my  course  to  port." 

Three  short  blasts  to  mean,  "My  engines  are  going  at  full  speed  astern." — 

(26  Stat.,  328,  chap.  802.) 

XO    VESSEL,    UNDER    ANY    CIRCUMSTANCES,    TO    NEGLECT    PROPER    PRECAUTIONS. 

Art.  29.  Nothing  in  these  rules  shall  exonerate  any  vessel  or  the  owner 
or  master  or  crew  thereof,  from  the  consequences  of  any  neglect  to  carry  lights 
or  signals,  or  of  any  neglect  to  keep  a  proper  look-out,  or  of  the  neglect  of  any 
precaution  which  may  be  required  by  the  ordinary  practice  of  seamen,  or  by 
the  special  circumstances  of  the  case. — (26  Stat.,  328,  chap.  802.) 

RESERVATION    OF    RULES    FOR    HARBORS    AND    INLAND    NAVIGATION. 

Art.  30.  Nothing  in  these  rules  shall  interfere  with  the  operation  of  a 
special  rule,  duly  made  by  local  authority,  relative  to  the  navigation  of  any 
harbor,  river,  or  inland  waters. — (26  Stat.,  328,  chap.  802.) 

DISTRESS    SIGNALS. 

Article  thirty-one.  When  a  vessel  is  in  distress  and  requires  assistance  from 
other  vessels  or  from  the  shore  the  following  shall  be  the  signals  to  be  used  or 
displayed  by  her,  either  together  or  separately,  namely : 
In  the  daytime — • 

First.  A  gun  or  other  explosive  signal  fired  at  intervals  of  about  a  minute. 

Second.  The  international  code  signal  of  distress  indicated  by  N  C. 

1214 


Pt.  3.  STATUTES  AT  LARGE.  Sept.  4,   1890. 

Third.  The  distance  signal,  consisting  of  a  square  flag,  having  either  above 
or  below  it  a  ball  or  anything  resembling  a  ball. 

Fourth.  A  continuous  sounding  with  any  fog-signal  apparatus. 

At  night — 

First.  A  gun  or  other  explosive  signal  fired  at  intervals  of  about  a  minute. 

Second.  Flames  on  the  vessel  (as  from  a  burning  tar  barrel,  oil  barrel, 
and  so  forth). 

Third.  Rockets  or  shells  throwing  stars  of  any  color  or  description,  fired 
one  at  a  time,  at  short  intervals. 

Fourth.  A  continuous  sounding  with  any  fog-signal  apparatus. — (26  Stat., 
328,  chap.  802;  28  Stat.,  83,  chap.  83.) 

This  article  was  expressly  amended  and  reenacted  to  read  as  above  by  act  of  May  28,  1894 
(28  Stat.,  83). 

[1890,  Aug.  29.  Chief  clerks  to  administer  oaths  of  office.]  And  the  Chief 
Clerks  of  the  several  Executive  Departments  and  of  the  various  bureaus  and 
offices  thereof  in  Washington,  District  of  Columbia,  are  hereby  authorized  and 
directed,  on  application  and  without  compensation  therefor,  to  administer 
oaths  of  office  to  employees  required  to  be  taken  on  their  appointment  or 
promotion. —  (26  Stat.,  371,  chap.  820.) 

See  section  183,  Re\dsed  Statutes,  and  note  thereto. 

[1890,  Aug-.  30.  Subsistence  of  officers  detailed  to  Coast  and  Geodetic 
Survey.]  Xor  shall  there  hereafter  be  made  any  allowance  for  subsistence  to 
officers  of  the  Navy  attached  to  the  Coast  and  Geodetic  Survey,  except  that 
when  officers  are  detached  to  do  work  away  from  their  vessels  under  circum- 
stances involving  them  in  extra  expenditures,  the  Superintendent  may  allow 
to  any  such  officer  subsistence  at  a  rate  not  exceeding  one  dollar  per  day  for  the 
period  actually  covered  by  such  duty  away  from  such  vessel. — (26  Stat.,  382, 
chap.  837.) 

See  sections  264  and  4688,  Revised  Statutes,  and  notes  thereto. 

[1890,  Aug.  30,  sec.  4.  Quarterly  accounts  to  be  rendered;  exceptions.] 
That  hereafter  all  disbursing  officers  of  the  United  States  shall  render  their 
accounts  quarterly;  and  the  Secretary  of  the  Senate  shall  render  his  accounts 
as  heretofore;  but  the  Secretary  of  the  Treasury  may  direct  any  or  all  such 
accounts  to  be  rendered  more  frequently  when  in  his  judgment  the  pubhc 
interests  may  require, — (26  Stat.  413,  chap.  837.) 

See  section  3622,  Revised  StatTites,  and  note  thereto. 

[1890,  Sept.  4.  Collisions;  duty  of  master;  penalty.]  That  in  every  case 
of  collision  between  two  vessels  it  shall  be  the  duty  of  the  master  or  person  in 
charge  of  each  vessel,  if  and  so  far  as  he  can  do  so  without  serious  danger  to 
his  own  vessel,  crew,  and  passengers  (if  any),  to  stay  by  the  other  vessel  until 
he  has  ascertained  that  she  has  no  need  of  further  assistance,  and  to  render  to 
the  other  vessel,  her  master,  crew,  and  passengers  (if  any)  such  assistance 
as  may  be  practicable  and  as  may  be  necessary  in  order  to  save  them  from 
any  danger  caused  by  the  collision,  and  also  to  give  to  the  master  or  person 
in  charge  of  the  other  vessel  the  name  of  his  own  vessel  and  her  port  of  registry, 
or  the  port  or  place  to  which  she  belongs,  and  also  the  name  of  the  ports  and 

1215 


Mar.  3,   1891. 


Pt.  S.  STATUTES  AT  LARGE. 


places  from  wiiicli  aiul  to  which  sho  is  hound.  11'  he  fails  so  to  do,  and  no 
reasonahle  cause  for  such  failure  is  shown,  the  collision  shall,  in  the  absence 
of  proof  to  the  contrary,  be  deemed  to  have  been  caused  by  his  wrongful  act, 
neglect,  or  default. 

Sec.  2.  That  every  master  or  person  in  charge  of  a  United  States  vessel  who 
fails,  without  reasonable  cause,  to  render  such  assistance  or  give  such  informa- 
tion as  aforesaid  shall  be  deemed  guilt}^  of  a  misdemeanor,  and  shall  be  liable 
to  a  penalty  of  one  thousand  dollars,  or  imprisonment  for  a  term  not  exceeding 
two  years;  and  for  the  above  sum  the  vessel  shall  be  liable  and  may  be  seized 
and  proceeded  against  by  process  in  any  district  court  of  the  Unitixl  States 
by  any  person;  one-half  such  sum  to  be  payable  to  the  informer  and  the  other 
half  to  the  United  States.— (26  Stat.,  425,  chap.  875.) 

[1890,  Sept.  25.  Badges,  military  societies.]  That  the  distinctive  badges 
adopted  by  military  societies  of  men  who  served  in  the  armies  and  navies  of 
the  United  States  in  the  war  of  the  Revolution,  the  war  of  eighteen  hundred 
and  twelve,  the  Mexican  war,  and  the  war  of  the  rebellion  respectively,  may  be 
worn  upon  all  occasions  of  ceremony  by  officers  and  enlisted  men  of  the  Army 
and  Navy  of  the  United  States,  who  are  members  of  said  organizations  in 
their  own  right.— (26  Stat.,  681,  Res.  No.  50.) 

See  note  to  section  1407,  Revised  Statutes. 

[1891,  Mar.  2.  Purchase  and  issue  of  naval  supplies.]  All  supplies  here- 
after purchased  wdth  moneys  appropriated  for  any  branch  of  the  naval  estab- 
lisliment  shall  be  purchased,  classified,  and  issued  for  consumption  or  use 
subject  to  the  provisions  contained  in  the  act  making  appropriations  for  the 
naval  service,  approved  June  thirtieth,  eighteen  hundred  and  ninety,  in  refer- 
ence to  supplies  therein  provided  for  and  on  hand. —  (26  Stat.,  807,  chap.  494.) 

The  provisions  contained  in  the  act  of  June 
30,  1890  (26  Stat.,  205),  referred  to  above, 
are  as  follows :  "All  supplies  purchased  with 
moneys  appropriated  by  this  act  shall  be 
deemed  to  be  purchased  for  the  Navy 
and  not  for  any  bureau  thereof,  and 
these  supplies,  together  with  all  supplies 
now  on  hand,  sliall  be  arranged,  classified, 
consolidated,  and  catalogued,  and  issued 
for  consumption  or  use,  under  such  regu- 

[1891,  Mar.  3,  sec.  4.  Ocean  mail  vessels,  construction  of,  approval  by 
Secretary  of  the  Navy.]  That  all  steam-ships  of  the  first,  second,  and  third 
classes  employed  as  above  and  hereafter  built  shall  be  constructed  with  par- 
ticular reference  to  prompt  and  economical  conversion  into  auxiliary  naval 
cruisers,  and  according  to  plans  and  specifications  to  be  agreed  upon  by  and 
between  the  owners  and  the  Secretary  of  the  Navy,  and  they  shall  be  of 
sufficient  strength  and  stability  to  carry  and  sustain  the  working  and  operation 
of  at  least  four  effective  rifled  cannon  of  a  caliber  of  not  less  than  six  inches, 
and  shall  be  of  the  higliest  rating  knowTi  to  maritime  commerce.  And  all  vessels 
of  said  tliree  classes  heretofore  built  and  so  employed  shall,  before  they  are 
accepted  for  the  mail  service  herein  provided  for,  be  thorouglily  inspected 
by  a  competent  naval  officer  or  constructor  detailed  for  that  service  by  the 
Secretary  of  the  Navy;  and  such  officer  shall  report,  in  writing,  to  the  Secre- 
tary of  the  Navy,  who  shall  transmit  said  report  to  the  Postmaster-General; 


lations  as  the  Secretary  may  prescribe, 
without  regard  to  the  bureau  for  which 
they  were  purchased." 
See  act  of  March  2.  1889  (25  Stat.,  818),  and 
sections  418,  3676,  3689,  and  3718,  Re- 
vised Statutes,  and  notes  to  said  act 
and  sections;  see  also  act  of  March  4, 
1911  (.36  Stat.,  1279),  and  note  thereto, 
as  to  naval  supply  account. 


1216 


Pt.  3.  STATUTES  AT  LARGE.  Mar.  3,   1891. 

and  no  such  vessel  not  approved  by  the  Secretary  of  the  Navy  as  suitable  for 
the  service  requu'ed  shall  be  emploj^ed  by  the  Postmaster-General  as  pro- 
vided for  in  this  act.— (26  Stat.,  831-832,  chap.  519.) 

See  note  to  section  388,  Re\ised  Statutes;  and  see  act  of  June  5,  1920  (41  Stat.,  988). 

[1891,  Mar.  3,  sec.  7.  Ocean  mail  vessels,  naval  oflBcers  serving  on.]  That 
ofl&cers  of  the  United  States  Navy  may  volunteer  for  service  on  said  mail 
vessels,  and  when  accepted  by  the  contractor  or  contractors  may  be  assigned 
to  such  duty  by  the  Secretary  of  the  Navy  whenever  in  his  opinion  such  assign- 
ment can  be  made  without  detriment  to  the  service,  and  while  in  said  employ- 
ment they  shaU  receive  furlough  pay  from  the  Government,  and  such  other 
compensation  from  the  contractor  or  contractors  as  may  be  agreed  upon  by 
the  parties:  Provided,  That  they  shall  only  be  required  to  perform  such  duties 
as  appertain  to  the  merchant  service. — (26  Stat.,  832,  chap.  519.) 

See  sections  1442  and  1557,  Re\ised  Statutes,  as  to  furlough  of  naval  ofTicers. 

[1891,  Mar.  3,  sec.  9.  Ocean  mail  vessels,  use  of  as  transports  or  cruisers.] 
That  such  steamers  may  be  taken  and  used  by  the  United  States  as  transports 
or  cruisers,  upon  pavment  to  the  owners  of  the  fair  actual  value  of  the  same 
at  the  time  of  the  taking,  and  if  there  shall  be  a  disagreement  as  to  the  fair 
actual  value  of  the  same  at  the  time  of  the  taking,  and  if  there  shall  be  a 
disagreement  as  to  the  fair  actual  between  the  United  States  and  the 
owners,  then  the  same  shall  be  determined  by  two  impartial  appraisers,  one 
to  be  appointed  by  each  of  said  parties,  they  at  the  same  time  selecting  a 
third,  who  shall  act  in  said  appraisement  in  case  the  two  shall  fail  to  agree. — 
(26  Stat.,  832,  chap.  519.) 

See  act  of  May  10,  1892,  section  4  (27  Stat.,  28). 

[1891,    Mar.    3.  Assistant   Secretary   of  the  Navy.]     For  compensation  of 

*  *  *  Assistant  Secretar}-  of  the  Navy,  who  shall  hereafter  perform  such 
duties  as  may  be  prescribed  by  the  Secretary  of  the  Navy  or  required  by  law, 

*  *     *.— (26  Stat.,  934,  chap.  541.) 

See  act  of  July  11,  1890  (26  Stat.,  254\  and  note  to  section  415,  Re\-ised  Statutes. 

[1891,  Mar.  3.  Artificial  limbs;  commutation.]  Artificial  limbs:  For 
furnishing  artificial  limbs  and  apparatus,  or  commutation  therefor,  *  *  * 
and  hereafter  in  case  of  commutation  the  money  shall  be  paid  directly  to  the 
soldier,  sailor,  or  marine,  and  no  fee  or  compensation  shall  be  allowed  or  paid 
to  any  agent  or  attorney. —  (26  Stat.,  979,  chap.  542.) 

See  note  to  section  1176,  Re\ised  Statutes. 

[1891,  Mar.  3.  Enlistment  of  indigent  boys  in  Navy.]  The  register  of  wUls 
shall  prepare  papers  in  connection  with  appointment  of  guardians  to  enable 
indigent  bo3's  to  enlist  in  the  United  States  Navy  as  provided  by  law,  without 
making  any  charge  therefor. —  (26  Stat.,  1063,  chap.  546.) 


See  note  to  section   1419,   Revised   Statutes, 
and  note  thereto. 


The  above  provision  is  contained  in  the  Dis- 
trict of  Columbia  appropriation  act,  and 
refers  to  the  Register  of  "Wills  in  the 
District  of  Columbia. 


[1891,    Mar.    3.  Pensions    not    allowed    persons    in    naval    service.]     That 
hereafter  no  pension  shall  be  allowed  or  paid  to  any  officer,  non  commissioned 


1217 


July  19.   1892.  Pt.  S.  STATUTES  AT  LARGE. 

ofTuor,  or  private  in  the  Army,  Navy,  or  Marine  Corps  of  the  United  States, 
either  on  the  active  or  retired  list. — (26  Stat.,  1082,  chap.  548.) 

[1892,  Apr.  12.  Naval  Observatory,  facilities  allowed  students,  etc.]  The 
facihties  for  research  and  illustration  in  the  following  and  any  other  Govern- 
mental collections  now  existing  or  hereafter  to  be  established  in  the  city  of 
Washington  for  the  promotion  of  knowledge  shall  be  accessible,  under  such 
rules  and  restrictions  as  the  officers  in  charge  of  each  collection  may  prescribe, 
subject  to  such  authority  as  is  now  or  may  hereafter  be  permitted  by  law,  to 
the  scientific  investigators  and  to  students  of  any  institution  of  higher  edu- 
cation now  incorporated  or  hereafter  to  be  incorporated  under  the  laws  of  Con- 
gress or  of  the  District  of  Columbia,  to  wit: 

*  *  *  *  *  *  * 

Twelve.  Of  the  Naval  Observatory.— (27  Stat.,  395,  Res.  No.  8.) 

See  act  of  March  3,  1901  (31  Stat.,  1039). 

[1892,  May  10,  sec.  4.  Merchant  vessels,  use  of  as  transports  or  cruisers.] 
That  any  steamships  so  registered  imder  the  provisions  of  this  act  may  be 
taken  and  used  by  the  United  States  as  cruisers  or  transports  upon  payment  to 
the  o\\Tiers  of  the  fair  actual  value  of  the  same  at  the  time  of  the  taking,  and 
if  there  shall  be  a  disagreement  as  to  the  fair  actual  value  at  the  time  of  taking 
between  the  United  States  and  the  owners,  then  the  same  shall  be  determined 
by  tw^o  impartial  appraisers,  one  to  be  appointed  by  each  of  said  parties,  who, 
in  case  of  disagreement,  shall  select  a  tlnrd,  the  award  of  any  two  of  the  three 
so  chosen  to  be  final  and  conclusive. —  (27  Stat.,  28,  chap.  63.) 


See  acts  of  March  3,  1891,  section  9  (26  Stat., 
832),  and  September  7,  1916,  section  10 
(39  Stat.,  731). 


This  section  was  part  of  an  act  providing  for 
American  registry  of  certain  foreign-built 
steamships  "now"  engaged  in  freight  and 
passenger  business. 

[1892,  July  16.  Buildings  rented  in  District  of  Columbia;  report  to  Con- 
gress.] That  hereafter  it  shall  be  the  duty  of  the  Secretary  of  the  Treasury 
to  cause  to  be  prepared  and  submitted  to  Congress  each  year,  in  the  annual 
Book  of  Estimates  of  Appropriations,  a  statement  of  the  buildings  rented 
within  the  District  of  Columbia  for  the  use  of  the  Government,  the  purposes 
for  which  rented,  and  the  annual  rental  of  each. —  (27  Stat.,  199,  chap.  196.) 


1883  (22  Stat.,  552);  and  notes  to  sections 
415,  429,  and  430,  Revised  Statutes. 


See  act  of  May  1,  1913,  section  3  (38  Stat.,  3); 
see  also  acts  of  March  3, 1877  (19  Stat.,  370), 
August  5,  1882  (22  Stat.,  241),  and  March  3, 

[1892,  July  19.  Change  in  name  of  Bureau.]  Bureau  of  Provisions  and 
Clothing,  hereafter  to  be  called  Bureau  of  SuppMes  and  Accounts. —  (27  Stat., 
243,  chap.  206.) 

See  section  419,  Revised  Statutes,  and  note  thereto. 

[1892,  July  19.  Bureau  of  Supplies  and  Accounts;  duties.]  All  laws  now  in 
force  relating  to  the  Bureau  of  Provisions  and  Clothmg  shall  now  and  hereafter 
apply  to  the  Bureau  of  Supphes  and  Accounts. —  (27  Stat.,  245,  chap.  206.) 

See  section  419,  Revised  Statutes,  and  note  thereto. 

[1892,  July  19.  Employment  on  shore  duty.]  And  the  provisions  of  section 
two  of  the  naval  appro|)riation  act  ap]>roved  March  third,  eighteen  hundred 
and  eighty-three,  shall  be  so  modified  that  liereafter  orders  of  the  Secretary  of 

1218 


Pt.  3.  STATUTES  AT  LARGE.  Aug.   1,   1892. 

the  Navy  employing  officers  on  shore  duty  shall  state  that  such  employment  is 
required  by  the  public  interests,  but  need  not  state  the  duration  of  such  serv- 
ice.—(27  Stat.,  245,  chap.  206.) 

See  act  of  March  3,  1883,  section  2  (22  Stat.,  481);  and  see  note  to  section  1571,  Re^dsed 
Statutes. 

[1892,  July  28.  Promotions,  commissioned  officers  of  Marine  Corps.]  That 
hereafter  promotions  to  every  grade  of  commissioned  officers  in  the  Marine 
Corps  below  the  grade  of  commandant  shall  be  made  in  the  same  manner  and 
under  the  same  conditions  as  now  are  or  may  hereafter  be  prescribed,  in  pur- 
suance of  law,  for  commissioned  officers  of  the  Army:  Provided,  That  examining 
boards  which  may  be  organized  under  the  provisions  of  this  act  to  determine 
the  fitness  of  officers  of  the  Marine  Corps  for  promotion  shall  in  all  cases  consist 
of  not  less  than  five  officers,  tliree  of  whom  shall,  if  practicable,  be  officers  of 
the  Marine  Corps,  senior  to  the  officer  to  be  examined,  and  two  of  whom  shall 
be  medical  officers  of  the  Navy:  Provided  J  urther,  That  when  not  practicable 
to  detail  officers  of  the  Marine  Corps  as  members  of  such  examining  boards, 
officers  of  the  line  in  the  Navy  shall  be  so  detailed. —  (27  Stat.,  321,  chap.  315.) 

See  sections  1599,  1605-1607,  Revised  Statutes,  and  notes  thereto. 

[1892,  Aug.  1.  Eight-hour  law,  Government  work.]  Section  1.  That  the 
service  and  employment  of  all  laborers  and  mechanics  who  are  now,  or  may 
hereafter,  be  employed  by  the  Government  of  the  United  States  or  the  District 
of  Columbia,  or  by  any  contractor  or  subcontractor,  upon  a  public  work  of  the 
United  States  or  of  the  District  of  Columbia,  and  of  all  persons  who  are  now,  or 
may  hereafter  be,  employed  by  the  Government  of  the  United  States  or  the 
District  of  Columbia,  or  any  contractor  or  subcontractor,  to  perform  services 
similar  to  those  of  laborers  and  mechanics  in  connection  with  dredging  or  rock 
excavation  in  any  river  or  harbor  of  the  United  States  or  of  the  District  of 
Columbia,  is  hereby  limited  and  restricted  to  eight  hours  in  any  one  calendar 
day;  and  it  shall  be  unlawful  for  any  officer  of  the  United  States  Government 
or  of  the  District  of  Columbia,  or  any  such  contractor  or  subcontractor  whose 
duty  it  shall  be  to  employ,  direct,  or  control  the  services  of  such  laborers  or 
mechanics  or  of  such  persons  employed  to  perform  services  similar  to  those  of 
laborers  and  mechanics  in  connection  with  dredging  or  rock  excavation  in  any 
river  or  harbor  of  the  United  States  or  of  the  District  of  Columbia,  to  require 
or  permit  any  such  laborer  or  mechanic  or  any  such  person  employed  to  per- 
form services  similar  to  those  of  laborers  and  mechanics  in  connection  with 
dredging  or  rock  excavation  in  any  river  or  harbor  of  the  United  States  or  of 
the  District  of  Columbia,  to  work  more  than  eight  hours  in  any  calendar  day, 
except  in  case  of  extraordinary  emergency:  Provided,  That  nothing  in  tliis 
Act  shall  apply  or  be  construed  to  apply  to  persons  employed  in  connection 
with  dredging  or  rock  excavation  in  any  river  or  harbor  of  the  United  States 
or  of  the  District  of  Columbia  while  not  directly  operating  dredging  or  rock 
excavating  machinery  or  tools,  nor  to  persons  engaged  in  construction  or  repair 
of  levees  or  revetments  necessary  for  protection  against  floods  or  overflows  on 
the  navigable  rivers  of  the  United  States. 


1219 


Mar.  3.  1893.  Pf.    ?.  STATUTES  AT  LARGE. 

VIOLATION    OF    ACT    BY    OFFICER    OR    CONTRACTOR    PUNISHABLE. 

Sec.  2.  That  any  ofRcer  or  agent  of  the  Government  of  the  United  States 
or  of  the  District  of  Cohimbia,  or  any  contractor  or  subcontractor  whose  duty 
it  shall  be  to  employ,  direct,  or  control  any  laborer  or  mechanic  employed 
upon  a  public  work  of  the  United  States  or  of  the  District  of  Colmnbia,  or  any 
person  employed  to  perform  services  similar  to  those  of  laborers  and  mechanics 
in  connection  with  dredging  or  rock  excavation  in  any  river  or  harbor  of  the 
United  States  or  of  the  District  of  Columbia,  who  shall  intentionally  violate  any 
provision  of  this  Act,  shall  be  deemed  guilty  of  a  misdemeanor,  and  for  each 
and  every  such  offense  shall,  upon  conviction,  be  punished  by  a  fine  not  to 
exceed  one  thousand  dollars,  or  by  imprisonment  for  not  more  than  six  months, 
or  by  both  such  fine  and  imprisonment,  in  the  discretion  of  the  court  having 
jurisdiction  thereof. 

EXISTING    CONTRACTS    NOT   AFFECTED    BY    ACT. 

Sec.  3.  That  the  provisions  of  this  Act  shall  not  be  so  construed  as  to  in 
any  manner  apply  to  or  affect  contractors  or  subcontractors,  or  to  limit  the 
hours  of  daily  service  of  laborers  or  mechanics  engaged  upon  a  public  work  of 
the  United  States  or  of  the  District  of  Columbia,  or  persons  employed  to  perform 
services  similar  to  those  of  laborers  and  mechanics  in  connection  with  dredging 
or  rock  excavation  in  any  river  or  harbor  of  the  United  States  or  of  the  District 
of  Columbia,  for  wliich  contracts  have  been  entered  into  prior  to  the  passing 
of  this  Act  or  may  be  entered  into  under  the  provisions  of  appropriation  Acts 
approved  prior  to  the  passage  of  this  Act. — (27  Stat.,  340,  chap.  352;  37  Stat., 
726-727,  chap.  106.) 


This  act  was  expressly  amended  and  reenacted 

to  read  as  above  by  act  of  March  3,  1913 

(37  Stat.,  726-727). 
See  act  of  June  19,  1912  (37  Stat.,  137),  which 

prescribed  contract  provisions  relating  to 

hours  of  labor. 


Hours  of  labor  were  previously  fixed  by  section 

3738,  Revised  Statutes. 
Suspension  of  eight-hour  law  in  case  of  national 

emergency:  See    act    March    4,    1917    (39 

Stat.,  1192). 


[1893,  Mar.  3.  Detective  agencies,  employment  of,  restricted.]  That  here- 
after no  employee  of  the  Pinkerton  Detective  Agency,  or  similar  agency,  shall 
be  employed  in  any  Government  service  or  by  any  officer  of  the  District  of 
Columbia.— (27  Stat.,  591,  chap.  208.) 

See  note  to  Constitution,  fourth  amendment,  under  "Arrest  of  military  offenders." 

[1893,  Mar.  3,  sec.  3.  Draping  public  buildings  in  mourning.]  That  here- 
after no  building  owTied,  or  used  for  public  purposes,  by  the  Government  of  the 
United  States,  shall  be  draped  in  mourning  and  no  part  of  the  public  fund  shall 
be  used  for  such  purpose. — (27  Stat.,  715,  chap.  211.) 

[1893,  Mar.  3,  sec.  4.  Closing  Departments  for  deceased  ex-officials.]  That 
hereafter  the  Executive  Departments  of  the  Government  shall  not  be  closed 
as  a  mark  to  the  memory  of  any  deceased  ex-official  of  the  United  States. — 
(27  Stat.,  715,  chap.  211.) 

[1893,  Mar.  3,  sec.  5.  Hours  of  labor;  leaves  of  absence;  condition  of  busi- 
ness, reports  of.]  Hereafter  it  shall  be  the  duty  of  the  heads  of  the  several 
Executive  Departments,  in  the  interest  of  the  public  service,  to  reqtiire  of  all 
clerks  and  other  employees,  of  whatever  grade  or  class,  in  their  respective 

1220 


Pt.  3.  STATUTES  AT  LARGE. 


Mar.  3,   1893. 


Departments,  not  less  than  seven  hours  of  Labor  each  day,  except  Sundays 
and  days  declared  public  holidays  by  law  or  Executiye  order:  Provided,  That 
the  heads  of  the  Departments  may,  by  special  order,  stating  the  reason,  further 
extend  the  hours  of  any  clerk  or  employee  in  their  Departments,  respectively ; 
but  in  case  of  an  extension  it  shall  be  without  additional  compensation:  Pro- 
vided furtlier,  That  the  head  of  any  Department  may  grant  thirty  days'  annual 
leave  with  pay  in  any  one  year  to  each  clerk  or  employee:  And  'provided  fur- 
ther, That  where  some  member  of  the  immediate  family  of  a  clerk  or  employee 
is  afflicted  vnih.  a  contagious  disease  and  requires  the  care  and  attendance  of 
such  employee,  or  where  his  or  her  presence  in  the  Department  would  jeopardize 
the  health  of  fellow-clerks,  and  in  exceptional  and  meritorious  cases,  where  a 
clerk  or  employee  is  personally  ill,  and  where  to  limit  the  annual  leave  to  thirty 
days  in  any  one  calendar  year  would  work  peculiar  hardship,  it  may  be  extended, 
in  the  discretion  of  the  head  of  the  Department,  with  pay,  not  exceeding  thirty 
days  in  any  one  case  or  in  any  one  calendar  year. 

This  section  shall  not  be  construed  to  mean  that  so  long  as  a  clerk  or  employee 
is  borne  upon  the  rolls  of  the  Department  in  excess  of  the  time  herein  provided 
for  or  granted  that  he  or  she  shall  be  entitled  to  pay  during  the  period  of  such, 
excessive  absence,  but  that  the  pay  shall  stop  upon  the  expiration  of  the  granted 
leave. 

Hereafter  it  shall  be  the  duty  of  the  head  of  each  Executive  Department 
to  require  monthly  reports  to  be  made  to  him  as  to  the  condition  of  the  public 
business  in  the  several  bureaus  or  offices  of  his  Department  at  Washington; 
and  in  each  case  where  such  reports  disclose  that  the  public  business  is  in 
arrears,  the  head  of  the  Department  in.  which  such  arrears  exist  shall  require, 
as  provided  herein,  an  extension  of  the  hours  of  service  to  such  clerks  or  employ- 
ees as  may  be  necessary  to  bring  up  such  arrears  of  public  business. 

Hereafter  it  shall  be  the  duty  of  the  head  of  each  Executive  Department, 
or  other  Government  establishment  at  the  seat  of  government,  not  under  an 
Executive  Department,  to  make  at  the  expiration  of  each  quarter  of  the  fiscal 
year  a  ■s\Titten  report  to  the  President  as  to  the  condition  of  the  public  business 
in  his  Executive  Department  or  Government  establishment,  and  whether  any 
branch  thereof  is  in  aiTears. — (27  Stat.,  715,  chap.  211;  30  Stat,,  316-317, 
chap.  68.) 


This  section  was  expressly  amended  and  re- 
enacted  to  read  as  above  by  act  of  March 
15,  1898  (30  Stat.,  316-.317,  section  7). 
Pre^^.ously,  the  hours  of  labor  and  leaves  of 
absence  of  employees  in  the  Executive 
Departments  had  been  fixed  by  act  of 
March  3,  1883,  section  4  (22  Stat.,  503). 
See  also  section  162,  Re\ised  Statutes,  and 
notes  thereto. 

The  above  section  was  modified  by  acts  of  July 
7,  1898  (30  Stat.,  653),  and  February  24, 
1899,  section  4  (30  Stat.,  890),  relating  to 
leaves  of  absence. 


As  to  holidays,  see  notes  to  sections  162  and 

1545,  Revised  Statutes. 
As  to  leaves  of  absence,  employees  at  navy 

yards  and  stations,  see  note  to  section  1545, 

Revised  Statutes. 
As  to  arrears  of  work,  see  sections  174-175,  Re- 

i-ised  Statutes. 
As  to  reports  required  to  be  made  by  heads  of 

departments,    see    section    429,    Re\ised 

Statutes,  and  note  thereto. 


[1893,  Mar.  3.  Commencement  of  pay,  officers  commissioned  from  graduates 
of  the  Naval  Academy.]  And  every  naval  cadet  or  cadet  engineer  who  has 
heretofore  graduated  or  may  hereafter  graduate  from  the  Naval  Academy,  and 
who  has  been  or  may  hereafter  be  commissioned,  within  six  months  after  such 


1221 


Mar.  3,   1893. 


rt.  ,?.  STATUTES  AT  LARGE. 


A  sliphtlv  different  provision  in  the  act  of  Jiih' 

19,  1892  (27  Stat.,  236),  was  superseded  by 

this  enactment. 
As  to  commencement  of  pay  of  officers  of  the 

Navy,  see    sections  1560 — 1562.     Revised 

Statutes,  and  notes  thereto. 


graduation,  an  officer  in  the  Navy  or  Marine  Corps  of  the  United  States,  under 
the  laws  appointing  such  graduate  to  the  Navy  or  Marine  Corps,  shall  be  allowed 
the  pay  of  the  grade  in  which  he  may  be  so  commissioned  from  the  date  he  takes 
rank  as  stated  in  his  commission  to  the  date  of  qualification  and  acceptance  of 
his  commission. —  (27  Stat.,  716,  chap.  212.) 

As  to  change  in  title  of  students  at  the  Naval 
Academy,  see  note  to  section  1512,  Revised 
Statutes;  and  see  note  to  section  1522,  Re- 
vised Statutes,  as  to  cadet  engineers. 

As  to  appointment  of  ^Taduatesto  commissioned 
grades  in  the  Kavy  and  Marine  Corps,  see 
note  to  section  1521,  Revised  Statutes. 

[1893,  Mar.  3.  Chief  of  Bureau  of  Construction  and  Repair.]  Any  Naval 
Constructor  having  the  rank  of  Captain,  Commander  or  Lieutenant  Com- 
mander shall  be  eligible  as  Chief  of  the  Bureau  of  Construction  and  Repair. — 
(27  Stat.,  716,  chap.  212.) 

See  note  to  section  423,  Revised  Statutes. 

[1893,  Mar.  3.  Credits  to  "Pay  miscelleaneous."]  Hereafter  the  accounting 
officers  of  the  Treasur}^  are  hereby  authorized  to  credit  appropriation  "Pay 
miscellaneous,"  with  all  receipts  for  interest  on  the  account  of  the  Navy  Depart- 
ment with  the  London  fiscal  agents,  premiums  arising  from  sales  of  bills  of 
exchange,  and  from  any  appreciation  in  the  value  of  foreign  coin. —  (27  Stat., 
716,  chap.  212.) 

[1893,  Mar.  3.  Fraudulent  enlistment.]  And  fraudulent  enlistment,  and 
the  receipt  of  any  pay  or  allowance  thereunder,  is  hereby  declared  an  offense 
against  naval  discipline  and  made  punishable  by  general  court-martial,  under 
article  twenty- two  of  the  articles  for  the  government  of  the  Navy;  but  this  pro- 
vision shall  not  take  effect  until  sixty  days  after  the  passage  of  this  act. — 
(27  Stat.,  716,  chap.  212.) 

See  note  to  section  1624,  article  22,  Revised  Statutes. 

[1893,  Mar.  3.  Assistant  to  chief,  Bureau  of  Navigation.]  That  an  officer 
of  the  Navy  not  below  the  rank  of  commander  may  be  detailed  as  assistant  to 
the  Chief  of  the  Bureau  of  Navigation  in  the  Navy  Department,  and  such 
officer  shall  receive  the  highest  pay  of  his  grade,  and,  in  case  of  the  death, 
resignation,  absence,  or  sickness  of  the  Chief  of  the  Bureau,  shall,  unless  other- 
wise directed  by  the  President,  as  provided  by  section  one  hundred  and  seventy- 
nine  of  the  Revised  Statutes,  perform  the  duties  of  such  Chief  until  his  successor 
is  appointed  or  such  absence  or  sickness  shall  cease. —  (27  Stat.,  717,  chap.  212.) 

See  sections  177-182,  and  421,  Re^dsed  Statutes,  and  notes  thereto. 

[1893,  Mar.  3.  Purchase  of  discharge.]  In  time  of  peace  the  President  may 
in  his  discretion,  and  under  such  rules  and  upon  such  conditions  as  he  may 
prescribe,  permit  any  enlisted  man  to  purchase  his  discharge  from  the  Navy 
or  Marine  Corps,  the  amounts  received  therefrom  to  be  covered  into  the 
Treasury.— (27  Stat.,  717,  chap.  212.) 


Furlough  without  pay,  under  the  same  condi- 
tions and  in  lieu  of  discharge  by  purchase, 
was  authorized  bv  act  of  August  29,  1916 
(39  Stat.,  580.) 


See  note  to  section  1418,  Re\'ised  Statutes,  as 
to  refund  of  enlistment  boiinty. 


1222 


Pt.  3.  STATUTES  AT  LARGE.  Mar.  29,  1894. 

[1893,  Mar.  3.  Gun  steel  and  armor  to  be  advertised  for.]  That  no  contract 
for  the  purchase  of  gun  steel  or  armor  for  the  Navy  shall  hereafter  be  made 
until  the  subject-matter  of  the  same  shall  have  been  submitted  to  pubhc 
competition  by  the  Department  by  advertisement. — (27  Stat.,  732,  chap.  212.) 


The  Secretary  of  the  Navy  was  authorized  and 
directed  to  pro\'ide  for  the  erection  or 
purchase  of  a  factory  for  the  manufacture 
of  armor  for  naval  vessels,  by  act  of  August 
29,  1916  (39  Stat.,  563). 


Identical  pro\isions  were  contained  in  acts  of 

March  2,  1891  (26  Stat.,  815),  and  July  19, 

1892  (27  Stat.,  251). 
See  sections  3718  and  3721,  ReA-ised  Statutes, 

and  notes  thereto,  as  to  purchases  for  the 

Navy. 

[1893,  Oct.  31.  Derelicts,  etc.,  marking  and  removal  of.]  That  the  Presi- 
dent of  the  United  States  be,  and  he  is  hereby,  authorized  to  make  with  the 
several  governments  interested  in  the  navigation  of  the  North  Atlantic  Ocean 
an  international  agreement  providing  for  the  reporting,  marking,  and  removal 
of  dangerous  wrecks,  derelicts,  and  other  menaces  to  navigation  in  the  North 
Atlantic  Ocean  outside  the  coast  waters  of  the  respective  countries  bordering 
thereon.— (28  Stat.,  13,  Res.  No.  13.) 

See  act  of  ^^larch  3,  1905  (33  Stat.,  1164),  and  see  notes  to  sections  1529  and  1536,  ReAdsed 

Statutes. 

[1894,  Mar.  29.  Property  returns.]  That  instead  of  forwarding  to  the 
accounting  officers  of  the  Treasury  Department  retm^ns  of  public  property 
entrusted  to  the  possession  of  officers  or  agents,  the  Quartermaster-General, 
the  Commissary-General  of  Subsistence,  the  Surgeon-General,  the  Chief  of 
Engineers,  the  Chief  of  Ordnance,  the  Chief  Signal  Officer,  the  Paymaster- 
General  of  the  Navy,  the  Commissioner  of  Indian  Affairs,  or  other  like  chief 
officers  in  any  Department,  by,  through,  or  under  whom  stores,  supphes,  and 
other  pubhc  property  are  received  for  distribution,  or  whose  duty  it  is  to 
receive  or  examine  retm^ns  of  such  property,  shall  certify  to  the  proper  account- 
ing officer  of  the  Treasmy  Department,  for  debiting  on  the  proper  account,  any 
charge  against  any  officer  or  agent  intrusted  with  pubhc  property,  arising 
from  any  loss,  accruing  by  his  fault,  to  the  Government  as  to  the  property  so 
intrusted  to  him. 

Sec.  2.  That  said  certificate  shall  set  forth  the  condition  of  such  officer's 
or  agent's  property  returns,  that  it  includes  all  charges  made  up  to  its  date  and 
not  previously  certified,  that  he  has  had  a  reasonable  opportunity  to  be  heard 
and  has  not  been  reheved  of  responsibihty;  the  effect  of  such  certificate,  when 
received,  shall  be  the  same  as  if  the  facts  therein  set  forth  had  been  ascertained 
by  the  accounting  officers  of  the  Treasury  Department  in  accoimting. 

Sec.  3.  That  the  manner  of  making  property  returns  to  or  in  any  adminis- 
trative bureau  or  department,  or  of  ascertaining  liability  for  property,  under 
existing  laws  and  regulations,  shall  not  be  affected  by  this  Act,  except  as 
provided  in  section  one ;  but  in  all  cases  arising  as  to  such  property  so  intrusted 
the  officer  or  agent  shall  have  an  opportunity  to  reheve  himself  from  liability. 

Sec.  4.  That  the  heads  of  the  several  Departments  are  hereby  empowered 
to  make  and  enforce  regulations  to  carry  out  the  provisions  of  this  Act. 

Sec.  5.  That  all  laws  or  parts  of  laws  inconsistent  with  the  provisions  of 
this  Act  are  hereby  repealed. — (28  Stat.,  47,  chap.  49.) 

See  note  to  section  236,  Re\ised  Statutes,  under  "III.  Limitations  upon  jurisdiction," 
and  note  to  section  1549,  Revised  Statutes. 

1223 


July  31,   1894.  Pt.  3.  STATUTES  AT  LARGE. 

[1894,  May  11.  Wearing  of  badges,  military  societies.]  That  the  dis- 
tinctive badge  adopted  by  the  Regular  iVi'my  and  Navy  Union  of  the  United 
States  may  be  worn,  in  their  own  right,  upon  all  puljlic  occasions  of  ceremony 
by  ofhcers  and  enlisted  men  of  the  Ai'my  and  Navy  of  the  United  States  who 
are  members  of  said  organization. —  (28  Stat.,  583,  Kes.  No.  26.) 

See  note  to  section  1407,  Re\'ised  Statutes. 

[1894,  June  28.  Public  holidays.]  That  the  first  Monday  of  September 
in  each  year,  being  the  day  celebrated  and  knowTi  as  Labor's  Plolida}^,  is  hereby 
made  a  legal  public  holiday,  to  all  intents  and  purposes,  in  the  same  manner 
as  Christmas,  the  first  day  of  January,  the  twenty-second  day  of  February, 
the  thirtieth  day  of  May,  and  the  fourth  day  of  July  are  now  made  by  law 
pubhc  holidays.— (28  Stat.,  96,  chap.  118.) 

See  note  to  section  1545,  Revised  Statutes. 

[1894,  July  26.  Assistant  to  Chief,  Bureau  of  Supplies  and  Accounts.]  That 
an  officer  of  the  pay  corps  of  the  Navy  may  be  detailed  as  assistant  to  the 
Chief  of  the  Bureau  of  Supplies  and  Accounts  in  the  Navy  Department,  and 
that  such  officer  shall,  in  case  of  the  death,  resignation,  absence,  or  sickness  of 
the  Chief  of  the  Bureau,  unless  otherwise  directed  by  the  President,  as  provided 
by  section  one  hundred  and  seventy-nine  of  the  Revised  Statutes,  perform  the 
duties  of  such  chief  until  his  successor  is  appointed  or  such  absence  or  sickness 
shall  cease. — (28  Stat.,  132,  chap.  165.) 


See  acts  of  March  3,  1899  (30  Stat.,  1038),  and 
February  25,  1903  (32  Stat.,  890);  see  also, 
sections  177-182,  and  421,  Revised  Stat- 
utes, and  notes  thereto. 


The  designation  of  the  "Pay  Corps"  was 
changed  to  "Supply  Corps"  by  an  act  of 
July  11,  1919  (41  Stat.,  147). 


[1894,  July  31,  sec.  6.  Comptroller  of  the  Treasury,  to  prescribe  forms  of 
keeping  accounts,  etc.]  The  Comptroller  of  the  Treasury  shall,  under  the 
direction  of  the  Secretary  of  the  Treasury,  prescribe  the  forms  of  keeping  and 
rendering  all  public  accounts,  except  those  relating  to  the  postal  revenues  and 
expenditures  therefrom. — (28  Stat.,  206,  chap.  174.) 

See  sections  236-310,  Revised  Statutes,  and  notes  thereto. 

[1894,  July  31,  sec.  7.  Auditor  for  the  Navy  Department,  duties  of.]  The 
Auditor  for  the  Navy  Department  shall  receive  and  examine  all  accounts  of 
salaries  and  incidental  expenses  of  the  office  of  the  Secretary  of  the  Navy,  and 
of  all  bureaus  and  offices  under  his  direction,  all  accounts  relating  to  the  Naval 
Establishment,  Marine  Corps,  Naval  Academy,  and  to  all  other  business  within 
the  jurisdiction  of  the  Department  of  the  Navy,  and  certify  the  balances  arising 
thereon  to  the  Division  of  Bookkeeping  and  Warrants,  and  send  forthwith  a 
copy  of  each  certificate  to  the  Secretary  of  the  Navy. — (28  Stat.,  207,  chap.  174.) 

See  sections  236-310,  Revised  Statutes,  and  notes  thereto. 

[1894,  July  31,  sec.  8.  Auditor's  settlements  conclusive,  unless  revised  by 
Comptroller.]  Tlie  balances  which  may  from  time  to  time  be  certified  by  the 
Auditors  to  the  Division  of  Bookkeeping  and  Warrants,  or  to  the  Postmaster 
General,  upon  the  settlements  of  public  accounts,  shall  be  final  and  conclusive 
upon  the  Executive  Branch  of  the  Government,  except  that  any  person  whose 
accounts  may  have  been  settled,  the  head  of  the  Executive  Department,  or  of 

1224 


Pt.  3.  STATUTES  AT  LARGE.  July  31,  1894. 

the  board,  commission,  or  establishment  not  under  the  jurisdiction  of  an 
Executive  Department  to  which  the  account  pertains,  or  the  Comptroller  of 
the  Treasury,  may,  within  a  year,  obtain  a  revision  of  the  said  accoimt  by  the 
Comptroller  of  the  Treasury,  whose  decision  upon  such  revision  shall  be  final 
and  conclusive  upon  the  Executive  Branch  of  the  Government:  Provided,  That 
the  Secretary  of  the  Treasury  may,  when  in  his  judgment  the  interests  of  the 
Government  require  it,  suspend  payment  and  direct  the  re-examination  of  any 
account.^ — (28  Stat.,  207,  chap.  174.) 

See  sections  236-310,  Revised  Statutes,  and  notes  thereto. 

[1894,  July  31,  sec.  8.  Effect  of  accepting  payment;  suspension  of  items  in 
accounts.]  Any  person  accepting  payment  under  a  settlement  by  an  Auditor 
shall  be  thereby  precluded  from  obtaining  a  revision  of  such  settlement  as  to 
any  items  upon  which  payment  is  accepted;  but  nothing  in  this  Act  shall  pre- 
vent an  Auditor  from  suspending  items  in  an  account  in  order  to  obtain  further 
evidence  or  explanations  necessary  to  their  settlement.  When  suspended 
items  are  finally  settled  a  revision  may  be  had  as  in  the  case  of  the  original 
settlement.  Action  upon  any  account  or  business  shall  not  be  delayed  awaiting 
applications  for  revision:  Provided,  That  the  Secretary  of  the  Treasury  shall 
make  regulations  fixing  the  time  which  shall  expire  before  a  warrant  is  issued 
in  payment  of  an  account  certified  as  provided  in  sections  seven  and  eight  of 
this  Act.— (28  Stat.,  208,  chap.  174.) 

See  sections  236-310,  Revised  Statutes,  and  notes  thereto. 

[1894,  July  31,  sec.  8.  Auditors  to  submit  decisions  to  Comptroller  for 
approval,  etc.]  All  decisions  by  Auditors  making  an  original  construction  or 
modifying  an  existing  construction  of  statutes  shall  be  forthwith  reported  to 
the  Comptroller  of  the  Treasury,  and  items  in  any  account  affected  by  such 
decisions  shall  be  suspended  and  payment  thereof  witliheld  until  the  Comp- 
troller of  the  Treasury  shall  approve,  disapprove,  or  modify  such  decisions  and 
certify  his  actions  to  the  Auditor.  All  decisions  made  by  the  Comptroller  of 
the  Treasury  under  this  Act  shall  be  forthwith  transmitted  to  the  Auditor  or 
Auditors  whose  duties  are  affected  thereby. — (28  Stat.,  208,  chap.  174.) 

[1894,  July  31,  sec.  8.  Advance  decisions  of  Comptroller;  effect  of.]  Dis- 
bursing officers,  or  the  head  of  any  Executive  Department,  or  other  establish- 
ment not  under  any  of  the  Executive  Departments,  may  apply  for  and  the 
Comptroller  of  the  Treasury  shall  render  his  decision  upon  any  question  involv- 
ing a  payment  to  be  made  by  them  or  under  them,  which  decision,  when  rendered, 
shall  govern  the  Auditor  and  the  Comptroller  of  the  Treasury  in  passing  upon 
the  account  containing  said  disbursement. — (28  Stat.,  208,  chap.  174.) 

See  notes  to  sections  236,  285,  286,  and  356,  Revised  Statutes. 

[1894,  July  31,  sec.  11.  Requisitions  for  advances  of  money.]  Every 
requisition  for  an  advance  of  money,  before  being  acted  on  by  the  Secretary  of 
the  Treasury,  shall  be  sent  to  the  proper  Auditor  for  action  thereon  as  required 
by  section  twelve  of  this  act. — (28  Stat.,  209,  chap.  174.) 

[1894,  July  31,  sec.  12.  Time  for  rendering-  accounts;  delinquency;  requisi- 
tions for  advances  disapproved.]  All  montlily  accounts  shall  be  mailed  or 
otherwise  sent  to  the  proper  officer  at  Washington  within  ten  days  after  the 
end  of  the  month  to  which  they  relate,  and  quarterly  and  othef  accounts  within 

1225 


July  31,  1894.  Pt.  3.  STATUTES  AT  LARGE. 

twenty  days  aft^r  the  period  to  which  they  relate,  and  shall  be  transmitted  to 
and  received  by  the  Auditors  within  twenty  days  of  their  actual  receipt  at  the 
proper  office  in  Washington  in  the  case  of  monthly,  and  sixty  days  in  the  case 
of  quarterly  and  other  accounts.  Should  there  be  any  delinquency  in  this 
regard  at  the  time  of  the  receipt  by  the  Auditor  of  a  requisition  for  an  advance 
of  money,  he  shall  disapprove  the  requisition,  which  he  may  also  do  for  other 
reasons  arising  out  of  the  condition  of  the  officer's  accounts  for  whom  the  ad- 
vance is  requested ;  but  the  Secretary  of  the  Treasury  may  overrule  the  Audi- 
tor's decision  as  to  the  sufficiency  of  these  latter  reasons:  Provided,  That  the 
Secretary  of  the  Treasury  shall  prescribe  suitable  rules  and  regulations,  and 
maj'  make  orders  in  particular  cases,  relaxing  the  requirement  of  mailing  or 
otherwise  sending  accounts,  as  aforesaid,  within  ten  or  twenty  days,  or  waiving 
delinquency,  in  such  cases  only  in  which  there  is,  or  is  likely  to  be,  a  manifest 
physical  difficulty  in  complying  with  the  same,  it  being  the  purpose  of  this 
provision  to  require  the  prompt  rendition  of  accomits  without  regard  to  the 
mere  convenience  of  the  officers,  and  to  forbid  the  advance  of  money  to  those 
delinquent  in  rendering  them. — (28  Stat.,  209,  chap.  174.) 
See  section  3622,  ReATsed  Statutes,  and  note  thereto. 

[1894,  July  31,  sec.  12.  Delay  by  administrative  department  in  forwarding 
accounts ;  effect  on  requisitions.]  That  should  there  be  a  delay  by  the  adminis- 
trative Departments  beyond  the  aforesaid  twenty  or  sixty  days  in  transmitting 
accounts,  an  order  of  the  President,  or,  in  the  event  of  the  absence  from  the 
seat  of  Government  or  sickness  of  the  President,  an  order  of  the  Secretary  of 
the  Treasury,  in  the  particular  case,  shall  be  necessary  to  authorize  the  advance 
of  money  requested.— (28  Stat.,  209,  chap.  174;  28  Stat.,  807,  chap.  177.) 


This  clause  was  expressly  amended  and  reen- 
acted  to  read  as  above  by  act  of  Mai'ch  2, 
1895,  section  4  (28  Stat.,  807.) 


By  section  3622,  Re\'ised  Statutes,  accounts  of 
Navy  dLsbm-sing  officers  are  to  be  rendered 
to  the  accounting  officers  direct. 


[1894,  July  31,  sec.  12.  Report  of  delinquency  to  be  made  to  Congress.] 
The  Secretary  of  the  Treasury  shall,  on  the  first  JVlonda}"  of  January  in  each 
year,  make  report  to  Congress  of  such  officers  and  administrative  departments 
and  offices  of  the  Government  as  were,  respectively,  at  any  time  during  the 
last  preceding  fiscal  year  delinquent  in  rendering  or  transmitting  accounts  to 
the  proper  offices  in  Washington  and  the  cause  therefor,  and  in  each  case  indi- 
cating whether  the  delinquency  was  waived,  together  with  such  officers,  includ- 
ing postmasters  and  officers  of  the  Post  Office  Department,  as  were  found  upon 
final  settlement  of  their  accounts  to  have  been  indebted  to  the  Government, 
with  the  amount  of  such  indebtedness  in  each  case,  and  who,  at  the  date  of 
making  report,  had  failed  to  pay  the  same  into  the  Treasury  of  the  United 
States.— (28  Stat.,  209,  chap.  174;  29  Stat.,  179,  chap.  252.) 

This  provision  was  expressly  amended  and  reen- 
acted  to  read  as  above  by  act  of  May  28, 
1896,  section  4  (29  Stat.,  179). 

[1894,  July  31,  sec.  14.  Claims  not  administratively  examined.]  In  the 
case  of  claims  presented  to  an  Auditor  wliich  have  not  had  an  administrative 
examination,  the  Auditor  shall  cause  them  to  be  examined  by  two  of  his  sub- 
ordinates independently  of  each  other. — (28  Stat.,  210,  chap.  174.) 

See  section  3622,  Revised  Statutes,  excepting  accounts  of  Navy  disbursing  officers  from 
administrative  examination. 

122Q 


See  notes  to  sections  176,  236-310,  and  1376,  Re- 
vised Statutes. 


Pt.  3.  STATUTES  AT  LARGE.  Aug.   13,  1894. 

[1894,  July  31,  sec.  22.  Reg-ulations  requiring  administrative  examination 
of  accounts.]  It  shall  also  be  the  duty  of  the  heads  of  the  several  Executive 
Departments  and  of  the  proper  officers  of  other  Government  establishments, 
not  within  the  jurisdiction  of  any  Executive  Department,  to  make  appropriate 
rules  and  regulations  to  secure  a  proper  administrative  examination  of  all 
accounts  sent  to  them,  as  required  by  section  twelve  of  this  Act,  before  their 
transmission  to  the  Auditors,  and  for  the  execution  of  other  requirements  of 
this  Act  in  so  far  as  the  same  relate  to  the  several  Departments  or  establish- 
ments.—(28  Stat.,  211,  chap.  174.) 


ined  by  and  through  the  administrative 
heads  of  di\dsions  and  biu-eaus  in  the  execu- 
tive departments  and  not  by  the  disbursing 
clerks  of  said  departments,  except  those 
vouchers  heretofore  prepared  outside  of 
Washington  may  continue  to  be  so  prepared 
and  the  disbursing  officers  shall  make  only 
such  examination  of  vouchers  as  may  be 
necessary  to  ascertain  whether  they  repre- 
sent legal  claims  against  the  United 
States." 


See  section  3622,  Revised  Statutes,  excepting 
accounts  of  Navy  disbursing  officers  from 
administrative  examination. 

By  act  of  August  23,  1912  (37  Stat.,  375),  it  was 
pro\dded  that  "Hereafter  the  administra- 
tive examination  of  all  public  accounts,  pre- 
liminary to  their  audit  by  the  accounting 
officers  of  the  Treasury,  shall  be  made  as 
contemplated  by  the  so-called  Dockery 
Act,  approved  July  thirty-first,  eighteen 
hundred  and  ninety-four,  and  all  vouchers 
and  pay  rolls  shall  be  prepared  and  exam- 

[1894,  Aug.  13.  Contractors  on  public  works,  protection  of  laborers  and 
material  men.]  That  hereafter  any  person  or  persons  entering  into  a  formal 
contract  with  the  United  States  for  the  construction  of  any  public  building, 
or  the  prosecution  and  completion  of  any  public  work,  or  for  repau-s  upon  any 
public  building  or  public  work,  shall  be  required,  before  commencing  such 
work,  to  execute  the  usual  penal  bond,  with  good  and  sufficient  sureties,  with 
the  additional  obligation  that  such  contractor  or  contractors  shall  promptly 
make  payments  to  all  persons  supplying  him  or  them  with  labor  and  materials 
in  the  prosecution  of  the  work  provided  for  in  such  contract;  and  any  person, 
company,  or  corporation  who  has  furnished  labor  or  materials  used  in  the 
construction  or  repair  of  any  public  building  or  public  work,  and  payment  for 
which  has  not  been  made,  shall  have  the  right  to  intervene  and  be  made  a 
party  to  any  action  instituted  by  the  United  States  on  the  bond  of  the  con- 
tractor, and  to  have  their  rights  and  claims  adjudicated  in  such  action  and 
judgment  rendered  thereon,  subject,  however,  to  the  priority  of  the  claim  and 
judgment  of  the  United  States.  If  the  full  amount  of  the  liability  of  the 
surety  on  said  bond  is  insufficient  to  pay  the  full  amount  of  said  claims  and 
demands,  then,  after  paying  the  full  amount  due  the  United  States,  the  re- 
mainder shall  be  distributed  pro  rata  among  said  interveners.  If  no  suit 
should  be  brought  by  the  United  States  witliin  six  months  from  the  comple- 
tion and  final  settlement  of  said  contract,  then  the  person  or  persons  supplying 
the  contractor  with  labor  and  materials  shall,  upon  application  therefor,  and 
furnishing  affidavit  to  the  Department  under  the  direction  of  wliich  said  work 
has  been  prosecuted  that  labor  or  materials  for  the  prosecution  of  such  work 
has  been  supplied  by  him  or  them,  and  payment  for  wliich  has  not  been  made, 
be  furnished  with  a  certified  copy  of  said  contract  and  bond,  upon  which  he 
or  they  shall  have  a  right  of  action,  and  shall  be,  and  are  hereby,  authorized 
to  bring  suit  in  the  name  of  the  United  States  in  the  circuit  court  of  the  United 
States  in  the  district  in  wliich  said  contract  was  to  be  performed  and  executed, 
irrespective  of  the  amount  in  controversy  in  such  suit,  and  not  elsewhere,  for 

54641°— 22 78  1227 


Aug.   13.  1894.  Pt.  3.  STATUTES  AT  LARGE. 

hi.s  or  their  use  and  benefit,  ao;ainst  said  contractor  and  his  sureties,  and  to 
prosecute  the  same  to  final  judgment  and  execution:  Provided,  That  where 
suit  is  instituted  by  any  of  such  creditors  on  the  bond  of  the  contractor  it 
shall  not  be  commenced  mitil  after  the  complete  performance  of  said  contract 
and  final  settlement  thereof,  and  shall  be  commenced  wnthin  one  year  after 
the  performance  and  final  settlement  of  said  contract,  and  not  later:  And 
provided  further,  That  where  suit  is  so  instituted  by  a  creditor  or  by  creditors, 
only  one  action  shall  be  brought,  and  any  creditor  may  file  his  claim  in  such 
action  and  be  made  party  thereto  within  one  year  from  the  completion  of  the 
work  under  said  contract,  and  not  later.  If  the  recovery  on  the  bond  should 
be  inadequate  to  pay  the  amounts  found  due  to  all  of  said  creditors,  judgment 
shall  be  given  to  each  creditor  pro  rata  of  the  amount  of  the  recovery.  The 
surety  on  said  bond  may  pay  into  court,  for  distribution  among  said  claimants 
and  creditors,  the  full  amount  of  the  sureties'  liability,  to  wit,  the  penalty 
named  in  the  bond,  less  any  amount  which  said  surety  may  have  had  to  pay 
to  the  United  States  by  reason  of  the  execution  of  said  bond,  and  upon  so  doing 
the  surety  will  be  reheved  from  f mother  liabihty:  Provided  further,  That  in  all 
suits  instituted  under  the  provisions  of  this  Act  such  personal  notice  of  the 
pendency  of  such  suits,  informing  them  of  their  right  to  intervene  as  the  com't 
may  order,  shall  be  given  to  all  known  creditors,  and  in  addition  thereto  notice 
of  pubhcation  in  some  newspaper  of  general  circulation,  published  in  the  State 
or  town  where  the  contract  is  being  performed,  for  at  least  three  successive 
weeks,  the  last  publication  to  be  at  least  three  months  before  the  time  limited 
therefor.— (28  Stat.,  278,  chap.  280;  33  Stat.,  811-812,  chap.  778.) 


to  acceptance  of  Liberty  or  other  United 
States  bonds;  and  see  note  to  section  1383, 
Revised  Statutes,  on  general  subject  of 
bonds. 


This  act  was  expressly  amended  and  reenacted 
to  read  as  above  by  act  of  Februaiy  24, 1905 
(33  Stat.,  811-812) ;  see  also  act  of  February 
24,  1919,  section_1320  (40  Stat.,  1148),  for 
further  modification  of  this  act  with  respect 

[1894,  Aug-.  13.  Bonds,  surety  companies,  when  accepted.]  That  whenever 
any  recognizance,  stipulation,  bond,  or  imdertaking  conditioned  for  the  faithful 
performance  of  any  duty,  or  for  doing  or  refraining  from  doing  anything  in 
such  recognizance,  stipulation,  bond,  or  undertaking  specified,  is  by  the  laws 
of  the  United  States  required  or  permitted  to  be  given  with  one  surety  or  with 
two  or  more  sureties,  the  execution  of  the  same  or  the  guaranteeing  of  the 
performance  of  the  condition  thereof  shall  be  sufficient  when  executed  or 
guaranteed  solely  by  a  corporation  incorporated  luider  the  laws  of  the  United 
States,  or  of  any  State  having  power  to  guarantee  the  fidelity  of  persons  holding 
positions  of  public  or  private  trust,  and  to  execute  and  guarantee  bonds  and 
undertakings  in  judicial  proceedings:  Provided,  That  such  recognizance, 
stipulation,  bond,  or  undertaking  be  approved  by  the  head  of  department, 
court,  judge,  officer,  board,  or  body  executive,  legislative,  or  judicial  required 
to  approve  or  accept  the  same.  But  no  officer  or  person  having  the  approval 
of  any  bond  shall  exact  that  it  shall  be  furnished  by  a  guarantee  company  or 
by  any  particular  guarantee  company. — (28  Stat.,  279,  chap.  282.) 

Sec.  2.  That  no  such  company  shall  do  business  under  the  provisions  of 
this  Act  beyond  the  limits  of  the  State  or  Territory  under  whose  laws  it  was 
incorporated  and  in  which  its  principal  office  is  located,  nor  beyond  the  limits 

1228 


Pt.  3.  STATUTES  AT  LARGE.  Aug.   13,  1894. 

of  the  District  of  Columbia,  when  such  company  was  incorporated  under  its 
laws  or  the  laws  of  the  United  States  and  its  principal  oflice  is  located  in  said 
District,  until  it  shall  by  a  written  power  of  attorney  appoint  some  person 
residing  within  the  jurisdiction  of  the  court  for  the  judicial  district  wherein 
such  suretyship  is  to  be  undertaken,  who  shall  be  a  citizen  of  the  State,  Terri- 
tory, or  District  of  Columbia,  wherein  such  court  is  held,  as  its  agent,  upon 
whom  may  be  served  all  lawful  process  against  such  company,  and  who  shall 
be  authorized  to  enter  an  appearance  in  its  behalf.  A  copy  of  such  power  of 
attorney,  duly  certified  and  authenticated,  shall  be  filed  with  the  clerk  of  the 
district  court  of  the  United  States  for  such  district  at  each  place  where  a  term 
of  such  court  is  or  may  be  held,  wliich  copy,  or  a  certified  copy  thereof,  shall 
be  legal  evidence  in  all  controversies  arising  under  this  Act.  If  any  such 
agent  shall  be  removed,  resign,  or  die,  become  insane,  or  otherwise  incapable 
of  acting,  it  shall  be  the  duty  of  such  company  to  appoint  another  agent  in 
his  place  as  hereinbefore  prescribed,  and  until  such  appointment  shall  have 
been  made,  or  dm-ing  the  absence  of  any  agent  of  such  company  from  such 
district,  service  of  process  may  be  upon  the  clerk  of  the  court  wherein  such 
suit  is  brought,  with  like  effect  as  upon  an  agent  appointed  by  the  company. 
The  officer  executing  such  process  upon  such  clerk  shall  immediately  transmit 
a  copy  thereof  by  mail  to  the  company,  and  state  such  fact  in  his  retm*n.  A 
judgment,  decree,  or  order  of  a  court  entered  or  made  after  service  of  process 
as  aforesaid  shall  be  as  valid  and  binding  on  such  company  as  if  served  with 
process  in  said  district. — (28  Stat.,  279,  chap.  282.) 

Sec.  3.  That  every  company,  before  transacting  any  business  under  this 
Act,  shall  deposit  with  the  Secretary  of  the  Treasury  of  the  United  States  a 
copy  of  its  charter  or  articles  of  incorporation,  and  a  statement,  signed  and 
sworn  to  by  its  president  and  secretary,  showing  its  assets  and  liabilities.  If 
the  said  Secretary  of  the  Treasury  shall  be  satisfied  that  such  company  has 
authority  under  its  charter  to  do  the  business  provided  for  in  this  Act,  and 
that  it  has  a  paid-up  capital  of  not  less  than  two  hundi-ed  and  fifty  thousand 
dollars,  in  cash  or  its  eqmvalent,  and  is  able  to  keep  and  perform  its  contracts, 
he  shall  grant  authority  in  writing  to  such  company  to  do  business  under  this 
Act.— (28  Stat.,  279,  chap.  282;  36  Stat.,  241,  chap.  109.) 

This  section  Avas  expressly  amended  and  reenacted  to  read  as  above  by  act  of  March  23, 1910 

(36  Stat.,  241). 

Sec.  4.  That  every  such  company  shall,  in  the  months  of  January,  April, 
July,  and  October  of  each  year,  file  with  the  said  Secretary  of  the  Treasury 
a  statement,  signed  and  sworn  to  by  its  president  and  secretary,  showing  its 
assets  and  liabilities,  as  is  required  by  section  three  of  this  Act.  And  the  said 
Secretary  of  the  Treasury  shall  have  the  power,  and  it  shall  be  his  duty,  to 
revoke  the  authority  of  any  such  company  to  transact  any  new  business  under 
this  Act  whenever  in  his  judgment  such  company  is  not  solvent  or  is  conduct- 
ing its  business  in  violation  of  this  Act.  He  may  institute  inquiry  at  any  time 
into  the  solvency  of  said  company  and  may  require  that  additional  security 
be  given  at  any  time  by  any  principal  when  he  deems  such  company  no  longer 
sufficient  security.— (28  Stat.,  279-280,  chap.  282;  36  Stat.,  241,  chap.  109.) 

This  section  was  expressly  amended  and  reenacted  to  read  as  above  by  act  of  March  23, 
1910  (36  Stat.,  241). 

1229 


Jan.  12,  1895.  Pt.  S.  STATUTES  AT  LARGE.  Printing  and  Binding. 

Sec.  5,  That  any  surety  company  doing  business  under  the  provisions 
of  this  Act  may  be  sued  in  respect  thereof  in  any  court  of  the  United  States 
which  lias  now  or  hereafter  may  have  juris(Uction  of  actions  or  suits  upon  such 
recognizance,  stipulation,  bond,  or  undertaking,  in  the  district  in  which  such 
recognizance,  stipulation,  bond,  or  undertaking  was  made  or  guaranteed,  or  in 
the  district  in  which  the  principal  office  of  such  company  is  located.  ^Vnd  for 
the  piu-poses  of  this  Act  such  recognizance,  stipulation,  bond,  or  undertaking 
shall  be  treated  as  made  or  guaranteed  in  the  district  in  which  the  office  is 
located,  to  which  it  is  returnable,  or  in  which  it  is  filed,  or  in  the  district  in 
which  the  principal  in  such  recognizance,  stipulation,  bond,  or  undertaking 
resided  when  it  was  made  or  guaranteed. —  (28  Stat.,  280,  chap.  282.) 

Sec.  6.  That  if  any  such  company  shall  neglect  or  refuse  to  pay  any 
final  judgment  or  decree  rendered  against  it  upon  any  such  recognizance, 
stipulation,  bond,  or  undertaking  made  or  guaranteed  by  it  under  the  provi- 
sions of  this  Act,  from  wliich  no  appeal,  writ  of  error,  or  supersedeas  has  been 
taken,  for  thirty  days  after  the  rendition  of  such  judgment  or  decree,  it  shall 
forfeit  all  right  to  do  business  under  this  Act. —  (28  Stat.,  280,  chap.  282.) 

Sec.  7.  That  any  company  wliich  shall  execute  or  guarantee  any  recogniz- 
ance, stipulation,  bond,  or  undertaking  under  the  provisions  of  this  Act  shall 
be  estopped  in  any  proceeding  to  enforce  the  liability  which  it  shall  have 
assumed  to  incur,  to  deny  its  corporate  power  to  execute  or  guarantee  such 
instrument  or  assume  such  liability. —  (28  Stat.,  280,  chap.  282.) 

Sec.  8.  That  any  company  doing  business  under  the  provisions  of  this 
Act  which  shall  fail  to  comply  with  any  of  its  provisions  shall  forfeit  to  the 
United  States  for  every  such  failure  not  less  than  five  hundred  dollars  nor  more 
than  five  thousand  dollars,  to  be  recovered  by  suit  in  the  name  of  the  United 
States  in  the  same  courts  in  which  suit  may  be  brought  against  such  company 
under  the  provisions  of  this  Act,  and  such  failure  shall  not  affect  the  validity 
of  any  contract  entered  into  by  such  company.^ (28  Stat.,  280,  chap.  282.) 

See  sections  1383-1385,  Revised  Statutes,  and  notes  thereto;  see  also  act  of  February  24, 
1919,  section  1320  (40  Stat.,  1148). 

[1895,  Jan.  12,  sec.  1.  Public  printing;  Joint  Congressional  Committee.] 
There  shall  be  a  Joint  Committee  on  Printing,  consisting  of  tlu-ee  Members  of 
the  Senate  and  three  Members  of  the  House  of  Representatives,  who  shall  have 
the  powers  hereinafter  stated. —  (28  Stat.,  601,  chap.  23.) 

[1895,  Jan.  12,  sec.  2.  Neglect  or  delay  in  printing;  estimates  required 
with  order  to  print  documents.]  Paragraph  1.  That  the  Joint  Committee  on 
Printing  shall  have  power  to  adopt  such  measures  as  may  be  deemed  necessary 
to  remedy  any  neglect  or  delay  in  the  execution  of  the  public  printing  and 
binding.     *     *     *. 

Par.  6.  Either  House  may  order  the  printing  of  a  document  not  already 
provided  for  by  existing  law,  but  only  when  the  same  shall  be  accompanied  by 
an  estimate  from  the  Public  Printer  as  to  the  probable  cost  thereof.  Any 
Executive  Department,  bureau,  board,  or  independent  office  of  the  Govern- 
ment submitting  reports  or  documents  in  response  to  inquiries  from  Congress 
shall  submit  therewith  an  estimate  of  the  probable  cost  of  printing  to  the  usual 
nmnber.     Nothing  in  this  paragraph  relating  to  estimates  shall  apply  to  reports 

1230 


Printing  and  Binding. 


Pt.  S.  STATUTES  AT  LARGE. 


Jan.   12,   1895. 


or  documents  not  exceeding  fift}^  pages. 
34  Stat.,  1012,  1013,  chap.  2284.) 

This  section  was  expressly  amended  and  re- 
enacted  to  read  as  above  by  act  of  March 
1,  1907,  section  1  (34  Stat.,  1012,  1013). 

Paragraph  1,  as  above  set  forth,  "was  further 
amended,  but  •ndthout  express  reference 
thereto,  by  the  follo-v\-ing  clause  in  the  act 
of  March  l",  1919,  sectionll  (40  Stat.,  1270): 
"The  Joint  Committee  on  Printing  shall 


(28  Stat.,  601,  chap,  23; 


have  power  to  adopt  and  employ  such 
measures  as,  in  its  discretion,  may  be 
deemed  necessary  to  remedy  any  neglect, 
delay,  duplication,  or  waste  in  the  public 
printing  and  binding  and  the  distribution 
of  Government  publications."  See  also 
section  80  of  this  act,  set  forth  below. 


[1895,  Jan.  12,  sec.  18.  Printing  and  binding  at  Government  Printing 
Office;  duties  of  Public  Printer.]  It  shall  be  the  dutv  of  the  Public  Printer 
to  purchase  all  materials  and  machinery  which  may  be  necessary  for  the 
Government  Printing  Office;  to  take  charge  of  all  matter  which  is  to  be 
printed,  engraved,  lithographed,  or  bound;  to  keep  an  account  thereof  in  the 
order  in  which  it  is  received,  and  to  cause  the  work  to  be  promptly  executed; 
to  superintend  all  printing  and  binding  done  at  the  Government  Printing 
Office,  and  to  see  that  the  sheets  or  volumes  are  promptly  delivered  to  the 
officer  who  is  authorized  to  receive  them.  The  receipt  of  such  officer  shall 
be  a  sufficient  voucher  for  their  delivery. —  (28  Stat.,  603,  chap.  23.) 


All  printing,  binding,  and  blank-book  work  is 
required  to  be  done  at  Government  Print- 
ing Office,  udth  certain  exceptions:  See 
act  of  March  1,  1919,  section  11  (40  Stat., 
1270);  and  see  section  87  of  this  act,  set 
forth  below. 

Distribution  of  documents  for  executive  de- 
partments, etc.,  is  to  be  done  by  Public 
Printer  and  not  by  such  departments,  with 
certain  exceptions:  See  act  of  August  23, 
1912,  section  8  (37  Stat.,  414). 

Supplies  for  executive  departments,  such  as 


manifold  blanks,  forms,  filing  devices,  etc., 
may  be  procured  by  Public  Printer:  See 
act  of  June  28,  1902,  section  1  (32  Stat., 
481). 

Time  for  furnishing  copy  for  annual  reports 
to  Public  Printer:  See  note  to  section  196, 
Revised  Statutes. 

Restriction  in  detail  of  employees  of  Govern- 
ment Printing  Office  to  duties  not  per- 
taining to  work  of  printing  and  binding  in 
any  department:  See  act  of  June  25,  1910, 
(36  Stat.,  770). 


[1895,  Jan.  12,  sec.  19.  Annual  report  of  printing  and  binding  for  De- 
partments.] The  Pubhc  Printer  shall  make  annual  report  to  Congress,  and 
in  it  specify  the  number  of  copies  of  each  Department  report  and  document 
printed  upon  requisition  by  the  head  of  the  Department  for  which  the  printing 
was  done,  and  he  shall  also  specify  in  said  report  the  exact  number  of  copies 
of  books,  giving  the  titles  of  the  books,  bound  upon  requisition  for  Senators, 
Representatives,  Delegates,  and  other  officers  of  the  Government  and  the  cost 
thereof.— (28  Stat.,  603,  chap.  23.) 


See  notes  to  sections  429-430,  Revised  Statutes; 
see  also  act  of  June  5,  1920  (41  Stat.,  1037), 
as  to  reports  required  to  be  made  to  Con- 


gress by  heads  of  departments  concerning 
publications  printed,  etc. 


[1895,  Jan.  12,  sec.  22.  Annual  report  of  accounts  with  Departments,  detailed 
statement  of  work  done,  etc.]  The  Public  Printer  shall,  on  the  first  day  of 
each  regular  session,  report  to  Congress  the  exact  condition  and  the  quantity 
and  cost  of  all  printing,  binding,  lithographing,  and  engraving;  the  quantity 
and  cost  of  all  paper  purchased  for  the  same;  a  detailed  statement  of  all  pro- 
posals and  contracts  entered  into  for  the  purchase  of  paper  and  other  materials, 
and  for  lithographing  and  engraving;  of  all  payments  made,  during  the  pre- 
ceding year,  under  his  direction;  of  the  quantity  of  work  ordered  and  done, 
with  a  general  classification  thereof,  for  each  Department,  and  a  detailed  state- 
ment of  each  account  with  the  Departments  or  public  officers;  a  classified 


1231 


Jan.   12,   1895.  Pt.  S.  STATUTES  AT  LARGE.  Printing  and  Binding. 

detailed  statement  of  the  number  of  hands  employed  and  the  sums  paid  to  each; 
and  such  other  information  touching  all  matters  connected  with  the  Printing 
Ollico  as  may  be  in  his  possession. —  (28  Stat.,  604,  chap.  23.) 

See  note  above,  under  section  19  of  this  act. 

[1895,  Jan.  12,  sec.  25.  Stereotyping.]  The  Pubhc  Printer  shall  cause 
to  be  stereotyped  or  electrotyped  ail  matter  when  there  is  a  reason  to  believe 
that  it  will  be  needed  a  second  time. — (28  Stat.,  604,  chap.  23.) 

[1895,  Jan.  12,  sec.  27.  Estimates  submitted  by  Public  Printer.]  He 
shall  prepare  and  submit  to  the  Secretary  of  the  Treasury,  annually,  in  time  to 
have  the  same  embraced  in  the  estimates  from  that  department,  detailed  esti- 
mates of  the  sums  which  wdl  be  required  for  salaries,  wages,  printing,  engrav- 
ing, lithographing,  bmding,  materials,  and  other  necessar}^  expenses  of  said 
Printing  Office  for  the  ensuing  fiscal  year. — (28  Stat.,  604,  chap.  23.) 


Soe  sections  430  and  3661,  Revised  Statutes, 
and  acts  of  March  2,  1895  (28  Stat.,  961), 
and  June  30,  1906,  section  2  (34  Stat.,  762). 


Printing  and  engra^dng  for  the  Hydrogi-aphic 
Office  are  to  be  estimated  for  separately 
and  in  detail,  and  appropriated  for  sepa- 
rately.    (Act  Aug.  4,  1886,  24  Stat.,  255.) 

[1895,  Jan,  12,  sec.  42.  Printing  documents  for  sale  to  applicants.]  The 
Public  Printer  shall  furnish  to  all  applicants  giving  notice  before  the  matter  is 
put  to  press,  not  exceeding  two  hundred  and  fifty  to  any  one  applicant,  copies 
of  bills,  reports,  and  documents,  said  applicants  paying  in  advance  the  cost  of 
such  printing  with  ten  per  centum  added:  Provided,  That  the  printing  of  such 
work  for  private  parties  shall  not  interfere  with  the  printing  for  the  Govern- 
ment.—(28  Stat.,  607,  chap.  23.) 

See  sections  52,  61,  and  67  of  this  act,  set  forth  below. 

[1895,  Jan.  12,  sec.  51.  Style  of  printing  and  binding.]  The  forms  and 
style  in  which  the  printing  or  binding  ordered  by  any  of  the  Departments  shall 
be  executed,  and  the  material  and  the  size  of  type  to  be  used,  shall  be  deter- 
mined by  the  Public  Printer,  having  proper  regard  to  economy,  workmansliip, 
and  the  purposes  for  which  the  work  is  needed. — (28  Stat.,  608,  chap.  23.) 

See  sections  86  and  91  of  this  act,  set  forth  below. 

[1895,  Jan.  12,  sec.  52.  No  Government  publication  to  be  copyrighted.] 
The  Public  Printer  shall  sell,  under  such  regulations  as  the  Joint  Committee  on 
Printing  may  prescribe,  to  any  person  or  persons  who  may  apply  additional  or 
duplicate  stereotype  or  electrotype  plates  from  which  any  Government  publi- 
cation is  printed,  at  a  price  not  to  exceed  the  cost  of  composition,  the  metal 
and  making  to  the  Government  and  ten  per  centum  added:  Provided,  That  the 
full  amount  of  the  price  shall  be  paid  when  the  order  is  filed:  And  provided 
further,  That  no  publication  reprinted  from  such  stereotype  or  electrotype 
plates  and  no  other  Government  publication  shall  be  copyrighted. — (28  Stat., 
608,  chap.  23.) 

See  sections  42,  61,  and  67  of  this  act  as  to  sale  of  publications. 

[1895,  Jan.  12,  sec.  54.  "Usual  number"  of  documents.]  Wlienever  any 
document  or  report  shall  be  ordered  printed  by  Congress,  such  order  to  print 
shall  signify  the  ^' usual  number"  of  copies  for  binding  and  distribution  among 
those  entitled  to  receive  them.  No  greater  number  shall  be  printed  unless 
ordered  by  either  House,  or  as  hereinafter  provided.     When  a  special  number 

1232 


Printing  and  Binding.  Pt.  3.  STATUTES  AT  LARGE.  Jan.   12,  1895. 

of  a  document  or  report  is  ordered  printed,  the  usual  number  shall  also  be 
printed,  unless  akeady  ordered.  The  usual  number  of  documents  and  reports 
shall  be  one  thousand  six  hundred  and  eighty-two  copies,  which  shall  be  dis- 
tributed as  follows:  *     *     *.— (28  Stat.,  608,  chap.  23.) 

See  section  73  of  this  act,  and  note  thereto;  see  also  Joint  Resohition  of  January  15,  1908 
(35  Stat.,  565). 

[1895,  Jan.  12,  sec.  58.  Departmental  publications,  distribution  to  libraries.] 
Whenever  printing  not  bearing  a  Congressional  number  shall  be  done  for  any 
department  or  officer  of  the  Government,  except  confidential  matter,  blank 
forms,  and  circular  letters  not  of  a  public  character,  or  shall  be  done  for  use  of 
Congressional  committees,  not  of  a  confidential  character,  two  copies  shall  be 
sent,  unless  withheld  by  order  of  the  committee,  by  the  Public  Printer  to  the 
Senate  and  House  Libraries,  respectively,  and  one  copy  each  to  the  document 
rooms  of  the  Senate  and  House,  for  reference;  and  these  copies  shall  not  be 
removed;  and  of  all  publications  of  the  Executive  Departments  not  intended 
for  their  especial  use,  but  made  for  distribution,  five  hundred  copies  shall  be  at 
once  delivered  to  the  superintendent  of  documents  for  distribution  to  designated 
depositories  and  State  and  Territorial  libraries. — (28  Stat.,  610,  chap.  23.) 


brary  of  Congress.     (See  Joint  Res.,  Mar.  2, 
1901,  sec.  3,  31  Stat.,  1465). 


Departmental  publications  printed  elsewhere 
than  at  Government  Printing  Office,  62  or 
more  copies  shall  be  suppUed  to  the  Li- 

[1895,  Jan.  12,  sec.  61.  Superintendent  of  documents;  sales  by;  other 
duties.]  The  PubHc  Printer  shall  appoint  a  competent  person  to  act  as  superin- 
tendent of  documents,  and  shall  fix  his  salary.  The  superintendent  of  docu- 
ments so  designated  and  appointed  is  hereby  authorized  to  sell  at  cost 
any  public  document  in  his  charge,  the  distribution  of  which  is  not  herein 
specifically  directed,  said  cost  to  be  estimated  by  the  Public  Printer  and  based 
upon  printing  from  stereotyped  plates ;  but  only  one  copy  of  any  document  shall 
be  sold  to  the  same  person,  excepting  libraries  or  schools  by  wliich  additional 
copies  are  deshed  for  separate  departments  thereof,  and  members  of  Congress; 
and  whenever  any  officer  of  the  Government  having  in  his  charge  documents 
published  for  sale  shall  desire  to  be  relieved  of  the  same,  he  is  hereby  authorized 
to  turn  them  over  to  the  superintendent  of  documents,  who  shall  receive  and  sell 
them  under  the  provisions  of  this  section.  All  moneys  received  from  the  sale 
of  documents  shall  be  returned  to  the  Public  Printer  on  the  first  day  of  each 
month  and  be  by  him  covered  into  the  Treasmy  monthly,  and  the  superintend- 
ent of  documents  shall  report  annually  the  number  of  copies  of  each  and  every 
document  sold  by  him,  and  the  price  of  the  same.  He  shall  also  report  monthly 
to  the  Public  Printer  the  number  of  documents  received  by  him  and  the  disposi- 
tion made  of  the  same.  He  shall  have  general  supervision  of  the  distribution 
of  all  public  documents,  and  to  his  custody  shall  be  committed  all  documents 
subject  to  distribution,  excepting  those  printed  for  the  special  official  use  of  the 
Executive  Departments,  which  shall  be  delivered  to  said  Departments,  and  those 
printed  for  the  use  of  the  two  Houses  of  Congress,  which  shall  be  delivered  to  the 
folding  rooms  of  said  Houses  and  distributed  or  delivered  ready  for  distribution  to 
Members  and  Delegates  upon  their  order  by  the  superintendents  of  the  folding 
rooms  of  the  Senate  and  House  of  Representatives. — (28  Stat.,  610,  chap.  23.) 

1233 


Jan.   12,  1895. 


rt.  S.  STATUTES  AT  LARGE. 


Printing  and  Binding. 


See  sections  42,  r)2,  and  07  of  this  act,  and  Joint 
Resolution  of  Nfaich  28,  l!K)4  (33  Stat.,  584), 
as  to  sale  of  documents. 


See  act  of  August  23,  1912,  section  8  (37  Stat., 
414),  as  to  distribution  of  departmental 
documents  by  Public  Printer. 


[1895,  Jan.  12,  sec.  62.  Departmental  publications  furnished  superintendent 
of  documents;  index  of  documents  to  be  published.]  The  supc'riiitondeiit  of 
dociinioiits  shall,  at  the  clo.se  of  each  regular  session  of  Congress,  prepare  and 
])ul)lish  a  comprehensive  index  of  public  documents,  beginning  with  tlie  Fifty- 
tliird  Congress,  upon  sucli  plan  as  shall  be  approved  by  the  Joint  Committee  on 
Printing;  and  the  Public  Printer  shall,  immediately  upon  its  publication,  deliver 
to  him  a  copy  of  each  and  every  document  printed  by  the  Government  Printing 
Office;  and  the  head  of  each  of  the  Executive  Departments,  bureaus,  and  ofFices 
of  the  Government  shall  deliver  to  him  a  copy  of  each  and  every  document  issued 
or  published  by  such  Department,  bureau,  or  office  not  confidential  in  its  char- 
acter. He  shall  also  prepare  and  print  in  one  volume  a  consolidated  index  of 
Congressional  documents,  and  shall  index  such  single  volumes  of  documents  as 
the  Joint  Committee  on  Printing  shall  direct.  Of  the  comprehensive  index  and 
of  the  consolidated  index  two  thousand  copies  each  shall  be  printed  and  bound 
in  addition  to  the  usual  number,  two  hundred  copies  for  the  use  of  the  Senate, 
eight  hundred  copies  for  the  use  of  the  House,  and  one  thousand  copies  for  dis- 
tribution by  the  superintendent  of  documents. — (28  Stat.,  610-611,  chap.  23.) 

See  section  69  of  this  act,  set  forth  below. 

1895,  Jan.  12,  sec.  67.  Disposal  of  accumulated  documents.]  All  documents 
at  present  remaining  in  charge  of  the  several  Executive  Departments,  bureaus, 
and  offices  of  the  Government  not  required  for  official  use  shall  be  delivered  to 
the  superintendent  of  documents,  and  hereafter  all  public  documents  accumu- 
lating in  said  Departments,  bureaus,  and  offices  not  needed  for  official  use  shall 
be  annually  turned  over  to  the  superintendent  of  documents  for  distribution  or 
sale.— (28  Stat.,  611-612,  chap.  23.) 

See  sections  42,  52,  and  61  of  this  act,  as  to  sale  of  documents;  see  also  Joint  Resolution  of 
March  28,  1904  (33  Stat.,  584). 

[1895,  Jan.  12,  sec.  69.  Catalogue  of  Government  publications.]  A  catalogue 
of  Government  publications  shall  be  prepared  by  the  superintendent  of  docu- 
ments on  the  first  day  of  each  month,  which  shall  show  the  documents  printed 
during  the  preceding  month,  where  obtainable,  and  the  price  thereof.  Two 
thousand  copies  of  such  catalogue  shall  be  printed  in  pamplilet  form  for  distribu- 
tion.—(28  Stat.,  612,  chap.  23.) 

See  section  62  of  this  act,  set  forth  above. 

[1895,  Jan.  12,  sec.  73.  Extra  copies  of  certain  documents  to  be  printed.] 
Extra  copies  of  documents  and  reports  shall  be  printed  promptly  when  the 
same  shall  be  ready  for  publication,  and  shall  be  bound  in  paper  or  cloth  as 
directed  by  the  Joint  Committee  on  Printing,  and  shall  be  of  the  number  fol- 
lowing in  addition  to  the  usual  number:     *     *     *. — (28  Stat.,  612,  chap.  23.) 

Of  the  Ephemeris  and  Nautical  Almanac  and  of  the  papers  supplementary 
thereto,  one  thousand  five  hundred  copies;  one  hundred  copies  for  the  Senate, 
four  hundred  for  the  House,  and  one  thousand  for  distribution  or  sale  by  the 
Navy  Department.  The  five  hundred  copies  printed  for  Congress  and  the 
usual  number  shall  be  for  the  calendar  year  next  following,  and  those  for  the 


1234 


Printing  and  Binding.  Ft.  3.  STATUTES  AT  LARGE.  Jan.  12,  1895. 

Navy  Department  for  the  third  year  following.     The  Secretary  of  the  Navy  is 

also  authorized  to  cause  additional  copies  of  the  Ephenieris,  and  of  the  Nautical 

Almanacs  extracted  therefrom,  to  be  printed  for  the  public  service  and  for  sale 

to  navigators  and  others:  Provided,  That  all  moneys  received  from  sales  of  the 

Ephemeris  and  of  the  Nautical  Almanacs  shall  be  deposited  in  the  Treasury 

and  placed  to  the  credit  of  the  general  fund  for  public  printing. — (28  Stat., 

G13,  chap.  23.) 

See  joint  resolution  of  May  13,  1902  (32  Stat.,  740),  and  act  of  July  1,  1902  (32  Stat.,  678); 
see  also  note  to  section  436,  Revised  Statutes. 

Of  the  Observations  of  the  Naval  Observatory,  one  thousand  eight  hun- 
dred copies;  three  hundred  for  the  Senate,  seven  hundred  for  the  House,  and 
eight  hundred  for  distribution  by  the  Naval  Observatory,  and  of  the  astro- 
nomical appendixes  to  the  above  observations,  one  thousand  two  hundred  sep- 
arate copies,  and  of  the  meteorological  and  magnetic  observations  one  thousand 
separate  copies  for  distribution  by  the  Naval  Observatory.     *     *     *. — (28  Stat., 

613,  chap.  23.) 

The  Secretary  of  State  shall  cause  to  be  edited,  printed,  published,  and 
distributed  pamphlet  copies  of  the  statutes  of  the  present  and  each  future 
session  of  Congress  to  the  officers  and  persons  hereinafter  provided  for;  said 
distribution  shall  be  made  at  the  close  of  every  session  of  Congress,  as  follows: 
*     *     *     to  the  Navy  Department,  one  hundred  copies.     *     *     *    . — (28  Stat., 

614,  chap.  23.) 

After  the  close  of  each  Congress  the  Secretary  of  State  shall  have  edited, 
printed,  and  bound  a  sufficient  number  of  the  volumes  containing  the  Statutes 
at  Large  enacted  by  that  Congress  to  enable  him  to  distribute  copies,  or  as 
many  thereof  as  may  be  needed,  as  follows:  *  *  *  to  the  Navy  Depart- 
ment, seventy-five  copies.     *     *     *. — (28  Stat.,  615,  chap.  23.) 

Of  the  Registers  of  the  Army  and  Navy,  fifteen  hundred  copies  of  each; 
five  hundred  for  the  Senate  and  one  thousand  for  the  House.  *  *  *. — (28 
Stat.,  616,  chap.  23.) 

There  shall  be  prepared  under  the  direction  of  the  Joint  Committee  on 
Printing  a  Congressional  Directory,  of  which  there  shall  be  three  editions  dur- 
ing each  long  session  and  two  editions  during  each  short  session  of  Congress. 
The  first  edition  shall  be  distributed  to  Senators,  Representatives,  Delegates, 
the  principal  officers  of  Congress,  and  heads  of  departments  on  the  first  day  of 
the  session,  and  shall  be  ready  for  distribution  to  others  within  one  week  there- 
after. The  number  and  distribution  of  such  Directory  shall  be  under  the  con- 
trol of  the  Joint  Committee  on  Printing.     *     *     *.— (28  Stat.,  617,  chap.  23.) 

The  Public  Printer  shall  furnish  the  Congressional  Record  as  follows  and 
shall  furnish  gratuitously  no  others  in  addition  thereto ;     *     *     * 

To  the  library  of  each  of  the  *  *  *■  Executive  Departments,  and  to 
the  Naval  Observatory,  *  *  *  one  bound  copy.  *  *  *. — (28  Stat.,  617, 
618,  chap.  23.) 

To  enable  the  officer  charged  with  the  duty  of  preparing  the  Official 
Register  of  the  United  States  to  publish  the  same,  the  Secretary  of  the  Senate, 
the  Clerk  of  the  House  of  Representatives,  the  head  of  each  Executive  Depart- 
ment of  the  Government,  and  the  chief  of  each  and  every  bureau,  office,  com- 
mission, or  institution  not  embraced  in  an  Executive  Department,  in  connec- 

1235 


Jan.  12,  1895.  Pt.  3.  STATUTES  AT  LARGE.  Printing  and  Binding. 

tion  with  which  sahiries  are  paid  from  the  Treasury  of  the  United  States,  shall, 
on  the  first  day  of  July  in  each  year  in  which  a  new  Congress  is  to  assemble, 
cause  to  be  filed  -with  the  Secretary  of  tlie  Interior  a  full  and  complete  list  of 
all  oflicers,  agents,  clerks,  and  other  employees  of  said  Department,  bureau, 
office,  commission,  or  institution  connected  with  the  legislative,  executive,  or 
ju(Ucial  service  of  the  Government,  or  paid  from  the  United  States  Treasury, 
incluiUng  military  and  naval  officers  of  the  United  States,  cadets,  and  mid- 
shipmen. 

Said  lists  shall  exhibit  the  salary,  compensation,  and  emoluments  allowed 
to  each  of  said  officers,  agents,  clerks,  and  other  employees,  the  State  or  country 
in  which  he  was  born,  the  State  or  Territory  and  Congressional  district  and  county 
of  which  he  is  a  resident  and  from  which  he  was  appointed  to  office,  and  where 
employed. 

A  list  of  the  names,  force,  and  condition  of  all  ships  and  vessels  belonging 
to  the  United  States,  and  when  and  where  built,  shall  also  be  filed  with  the 
Secretary  of  the  Interior  by  the  heads  of  the  Departments  having  supervision 
of  such  ships  and  vessels,  for  incorporation  in  the  Official  Register.  *  *  *. — 
(28  Stat.,  618,  chap.  23.) 

By  act  of  Octo]>er  22,  1913  (38  Stat.,  224),  the       The  Director  of  the  Census  has  been  substi- 
last  paragraph  above  quoted,  as  to  ships  tuted  for  the  Secretary  of  the  Interior  in 

and  vessels,  was  repealed.  the  above  enactment.     (See  note  to  sec. 

198,  R.  S.) 

Of  the  Official  Register  three  thousand  copies  shall  be  printed  and  bound, 
which  shall  be  distributed  as  follows :  *  *  *  to  the  Navy  Department,  twenty 
copies    *    *    *.— (28  Stat.,  619,  chap.  23.) 

No  report,  document,  or  publication  of  any  kind  distributed  by  or  from  an 
Executive  Department  or  bureau  of  the  Government  shall  contain  any  notice 
that  the  same  is  sent  with  "  the  compliments  "  of  an  officer  of  the  Government, 
or  with  any  special  notice  that  it  is  so  sent,  except  that  notice  that  it  has  been 
sent,  with  a  request  for  an  acknowledgment  of  its  receipt,  may  be  given. — 
(28  Stat.,  620,  chap.  23.) 

See  note  to  section  429,  Revised  Statutes. 

[1895,  Jan.  12,  sec.  74.  Government  publications,  ownership.]  Government 
publications  furnished  to  judicial  and  executive  officers  of  the  United  States  for 
their  official  use  shall  not  become  the  property  of  these  officers,  but  on  the  ex- 
piration of  their  official  term  shall  be  by  them  delivered  to  their  successors  in 
office  and  all  Government  publications  delivered  to  designated  depositories 
or  other  libraries  shall  be  for  public  use  without  charge. — (28  Stat.,  620, 
chap.  23.) 

[1895,  Jan.  12,  sec.  77.  Hydrographic  Office,  publications,  sale  of.]  The 
Secretary  of  the  Navy  is  authorized  to  cause  to  be  prepared  at  the  Hydrograpliic 
Office  attached  to  the  Bureau  of  Navigation,  in  the  Navy  Department,  maps, 
charts,  and  nautical  books  relating  to  and  required  in  navigation,  and  to  publish 
and  furnish  them  to  navigators  at  the  cost  of  printing  and  paper,  and  to  purchase 
the  plates  and  copyrights  of  such  existing  maps,  charts,  navigators'  sailing 
directions  and  instructions  as  he  may  consider  necessary  and  when  he  may  deem 
it  expedient  to  do  so,  and  under  such  regulations  and  instructions  as  he  may 
prescribe. 

1236 


see  act  of  February  14,  1879  (20  Stat.,  286), 
as  to  sale  of  charts  to  mariners  and  others. 


Printing  and  Binding.  Pt.  3.  STATUTES  AT  LARGE.  Jan.   12,   1895. 

All  moneys  which  may  be  received  from  the  sale  of  maps,  charts,  and 

nautical  books  shall  be  paid  by  the  Secretary  of  the  Navy  into  the  Treasury  of 

the  United  States,  to  be  used  in  the  further  preparation  and  publication  of 

maps,  charts,  navigators'  sailing  directions,  and  instructions  for  the  use  of 

seamen,  to  be  sold  at  the  cost  of  printing  and  paper. —  (28  Stat.,  621,  chap.  23.) 

See  sections  431^33,  Revised  Statutes,  and 
act  of  May  29,  1920  (41  Stat.,  665);  see  also 
section  89  of  this  act,  set  forth  below;  and 

[1895,  Jan.  12,  sec.  78.  Foreign  hydrographic  surveys.]  All  appropriations 
made  for  the  preparation  or  publication  of  foreign  hydrographic  surveys  shall 
only  be  applicable  to  their  object,  upon  the  approval  by  the  Secretary  of  the 
Navy,  after  a  report  from  three  competent  naval  officers  to  the  effect  that  the 
original  data  for  proposed  charts  are  such  as  to  justify  their  publication;  and  it 
is  hereby  made  the  duty  of  the  Secretary  of  the  Navy  to  order  a  board  of  three 
naval  officers  to  examine  and  report  upon  the  data  before  he  shall  approve  of 
any  application  of  moneys  to  the  preparation  or  publication  of  such  charts  or 
hydrographic  surveys. —  (28  Stat.,  621,  chap.  23.) 

See  sections  431^33,  and  3686,  Revised  Statutes,  and  notes  thereto. 

[1895,  Jan.  12,  sec.  80.  Time  for  furnishing  copy  and  illustrations  to  Public 

Printer.]     No  document  or  report  to  be  illustrated  or  accompanied  by  maps 

shall  be  printed  by  the  Public  Printer  until  the  illustrations  or  maps  designed 

therefor  shall  be  ready  for  publication;  and  no  order  for  public  printing  shall 

be  acted  upon  by  the  Public  Printer  after  the  expiration  of  one  year,  unless  the 

entire  copy  and  illustrations  for  the  work  shall  have  been  furnished  within  that 

period:  Provided^  This  section  shall  not  apply  to  orders  heretofore  made  for  the 

printing  of  a  series  of  volumes  on  one  subject. — (28  Stat.,  621,  chap.  23.) 

See  section  196,  Re\'ised  Statutes,  and  note  thereto,  as  to  time  for  furnishing  copy  of  annual 
reports  to  printer;  and  see  section  2  of  this  act,  set  forth  above. 

[1895,  Jan.  12,  sec.  86.  Authority  of  law  for  work;  style  of  binding.]  No 
printing  or  binding  shall  be  done  at  the  Government  Printing  Office  unless 
authorized  by  law.  Binding  for  the  Departments  of  the  Government  shall  be 
done  in  plain  sheep  or  cloth,  except  that  record  and  account  books  may  be 
bound  in  Russia  leather,  sheep  fieshers,  and  skivers,  when  authorized  by  the 
head  of  a  Department:  Provided,  The  libraries  of  the  several  Departments,  the 
Library  of  Congress,  the  libraries  of  the  Surgeon-General's  Office,  the  Patent 
Office,  and  the  Naval  Observatory  may  have  books  for  the  exclusive  use  of 
said  libraries  bound  in  half  Turkey,  or  material  no  more  expensive. — (28  Stat., 
622,  chap.  23.) 


also  section  51  of  this  act,  set  forth  above,  as 
to  style  of  binding. 


See  section  94  of  this  act,  and  act  of  March  3, 
1905  (33  Stat.,  1249)  for  restrictions  on 
printing  for  Executive  Departments;  see 

[1895,  Jan.  12,  sec.  87.  Printing,  etc.,  to  be  done  at  Government  Printing 
Office.]  All  printing,  binding,  and  blank  books  for  the  Senate  or  House  of 
Representatives  and  for  the  Executive  and  Judicial  Departments  shall  be  done 
at  the  Government  Printing  Office,  except  in  cases  otherwise  provided  by  law. — 
(28Stat.,  622,  chap.  23.) 

See  act  of  March  1,  1919,  section  11  (40  Stat.,  printing  establishments,  by  the  Secretary 

1270).  of  War,  "in  time  of  actual  hostilities." 

By  act  of  May  12,  1917  (40  Stat.,  74  and  75),  See  note  to  section  159,  Revised  Statutes,  for 
this   section    was    expressly    amended    to  definition  of  ' '  Executive  and  Judicial  De- 
authorize  work  for  the  Army   "or  other  partments." 
miUtary  forces,"  to  be  prociu-ed  from  other 

1237 


Jan.   12,   1895.  Pt.  .?.  STATUTES  AT  LARGE.  Printing  and  Binding. 

[1895,  Jan.  12,  sec.  89.  Requisition  for  printing;  number  of  copies;  annual 
reports ;  publications  of  Hydrographic  Office.]  No  printing  shall  be  clone  for  the 
Kxeoutive  De])artments  in  any  fiscal  year  in  excess  of  the  amount  of  the  appro- 
priation, and  none  shall  bo  done  without  a  special  requisition,  signed  b^'  the 
chief  of  the  Department  and  filed  ^vith  the  Public  Printer. 

No  report,  publication,  or  document  shall  be  printed  in  excess  of  the 
number  of  one  thousand  of  each  in  any  one  fiscal  3^ear  without  authorization 
therefor  by  Congress,  except  that  of  the  annual  report  of  the  head  of  the  Depart- 
ment without  appendices  there  may  be  printed  in  any  one  fiscal  year  not  to 
exceed  five  thousand  copies,  bound  in  pamphlet  form;  and  of  the  reports  of 
chiefs  of  bureaus  without  appendices  there  may  be  printed  in  any  one  fiscal 
year  not  to  exceed  two  thousand  five  hundred  copies,  bound  in  pamphlet 
form:  *  *  *  ^j^j  ^he  Secretary  of  the  Navy  may  authorize  the  printing  of 
the  charts,  maps,  notices  to  mariners,  tide  tables,  light  lists,  sailing  directions, 
bulletins,  and  other  special  publications  of  the  Hydrographic  Office  in  such 
editions  as  the  interests  of  the  Government  and  of  the  public  may  require. 

Heads  of  Executive  Departments  shall  direct  whether  reports  made  to 
them  by  bureau  chiefs  and  chiefs  of  divisions  shall  be  printed  or  not. — (28  Stat., 
622-623,  chap.  23.) 


See  sections  196  and  429,  Revised  Statutes,  and 
notes  thereto,  and  sections  91  and  94  of  this 
act,  as  to  printing  of  annual  reports. 

See  section  93  of  this  act,  below,  as  to  requi- 
sitions for  printing  and  binding. 


See  joint  resolution  of  March  21,  1900  (31  Stat., 

713),  as  to  Naval  Intelligence  publications; 

and  see  joint  resolution  of  March  30,  1906 

(34  Stat.,  826),  as  to  printing  of  documents 

for  Executive  Departments  in  two  or  more 

editions. 
See  section  77  of  this  act,  set  forth  above,  and 

references  thereunder,  as  to  publications  of 

the  Hydrographic  Office. 

[1895,  Jan.  12,  sec.  90.  Congressional  Record,  daily  examination  of;  docu- 
ments, bills,  etc.,  to  be  ordered  by  Departments.]  The  heads  of  Executive 
Departments,  and  such  executive  officers  as  are  not  connected  with  the  Depart- 
ments, respectively,  shall  cause  daily  examination  of  the  Congressional  Record 
for  the  purpose  of  noting  documents,  reports,  and  other  publications  of  interest 
to  their  Departments,  and  shall  cause  an  immediate  order  to  be  sent  to  the 
Public  Printer  for  the  number  of  copies  of  such  publications  required  for  official 
use,  not  to  exceed,  however,  the  number  of  bureaus  in  the  Department  and 
divisions  in  the  office  of  the  head  thereof.  The  Public  Printer  shall  send  to 
each  Executive  Department  and  to  each  executive  office  not  connected  with 
the  Departments,  as  soon  as  printed,  five  copies  of  all  bills  and  resolutions, 
except  the  State  Department,  to  which  shall  be  sent  ten  copies  of  bills  and 
resolutions.  When  the  head  of  a  Department  desires  a  greater  number  of  any 
class  of  bills  or  resolutions  for  official  use,  they  shall  be  furnished  by  the  Public 
Printer  on  requisition  promptly  made. — (28  Stat.,  623,  chap.  23.) 

[1895,  Jan.  12,  sec.  91.  Annual  reports,  style  of  printing.]  The  annual 
reports  of  executive  officers  shall  be  printed  in  the  same  type  and  form  as  the 
report  of  the  head  of  the  Department  which  it  accompanies,  unless  otherwise 
ordered  by  the  Joint  Committee  on  Printing. — (28  Stat.,  623,  chap.  23.) 


See  section  51  of  this  act,  set  forth  above,  as  to 
style  of  printing  and  binding. 


See  section  89  of  this  act,  set  forth  above,  and 
sections  196  and  429,  Rexased  Statutes, 
and  notes  thereto,  as  to  printing  of  annual 
reports. 


1238 


Printing  and  Binding.  Pt.  3.  STATUTES  AT    LARGE.  Jan.  12,  1895. 

[1895,  Jan.  12,  sec.  92.  Distribution  of  Government  publications.]  Govern- 
ment publications  printed  for  or  received  b_y  the  Executive  Departments, 
whether  for  official  use  or  for  distribution,  shall  be  distributed  by  a  competent 
person  detailed  to  such  duty  in  each  Department  by  the  head  thereof.  He 
shall  keep  an  account  in  detail  of  all  publications  received  and  distributed  by 
him.  He  shall  prevent  duplication,  and  make  detailed  report  to  the  head  of 
the  Department,  who  shall  transmit  the  same  annually  to  Congress. — (28  Stat., 
623,  chap.  23.) 

See  act  of  August  23,  1912,  section  8  (37  Stat.,  i  Not  to  be  distributed  with  "the  compliments" 

414-415),  as  to  distribution  of   documents  ,  of  any  officer:  See  section  73,   last  para- 

for  Executive  Departments  to  be  done  by  j  graph,  of  this  act,  set  forth  above;  and  see 

the  Pubhc  Printer,  with  certain  exceptions.  ;  note  to  section  429,  Revised  Statutes. 

[1895,  Jan.  12,  sec.  93.  Requisitions  for  work;  estimate  of  cost;  appropriation 
charged.]  When  any  Department,  the  Supreme  Court,  the  Court  of  Claims,  or 
the  Library  of  Congress  shall  require  printing  or  binding  to  be  done  it  shall 
be  on  certificate  that  such  work  be  necessary  for  the  public  service;  whereupon 
the  Public  Printer  shall  furnish  an  estimate  of  the  cost  by  the  principal  items 
for  such  printing  or  binding  so  called  for,  after  which  requisitions  shall  be 
made  upon  him  therefor  by  the  head  of  such  Department,  the  Clerk  of  the 
Supreme  Court,  Chief  Justice  of  the  Court  of  Claims,  or  the  Librarian  of  Congress; 
and  the  Public  Printer  shall  place  the  cost  thereof  to  the  debit  of  such  Depart- 
ment in  its  annual  appropriation  for  printing  and  binding. — (28  Stat.,  623, 
chap.  23.) 

See  section  89  of  this  act,  set  forth  above;  and  see  joint  resolution  of  March  30,   1906 
(34  Stat.,  825),  as  to  charges  against  printing  allotments. 

[1895,  Jan.  12,  sec.  94.  Authority  of  law  for  printing;  restrictions  upon 
annual  reports.]  No  head  of  any  Executive  Department,  or  of  any  bureau, 
branch,  or  office  of  the  Government,  shall  cause  to  be  printed,  nor  shall  the 
Public  Printer  print,  any  document  or  matter  except  that  which  is  authorized 
by  law  and  necessary  to  the  public  business;  and  executive  officers,  before 
transmitting  their  annual  reports,  shall  carefully  examine  the  same  and  all 
accompanying  documents,  and  exclude  therefrom  all  matter,  including  engrav- 
ings, maps,  drawings,  and  illustrations,  except  such  as  they  shall  certify  in 
their  letters  transmitting  such  reports  are  necessary  and  relate  entirely  to  the 
transaction  of  the  public  business. — (28  Stat.,  623,  chap.  23.) 


See  act  of  March  3,  1905  (33  Stat.,  1213),  as  to 
illustrations  iu  reports,  etc. 


See  section  86  of  tliis  act  and  act  of  March  3, 

1905  (33  Stat.,    1249),   for  restrictions  on 

printing  and  binding. 
See  section  89  of  this  act,  and  sections  196  and 

429,  Revised  Statutes,  and  notes  thereto, 

as  to  printing  of  annual  reports. 

[1895,  Jan.  12,  sec.  95.  Exchange  of  documents  and  books.]  Heads  of 
Departments  are  authorized  to  exchange  surplus  documents  for  such  other 
documents  and  books  as  may  be  required  by  them,  when  the  same  can  be 
done  to  the  advantage  of  the  public  service. — (28  Stat.,  623,  chap.  23.) 

[1895,  Jan.  12,  sec.  96.  Official  envelopes  procured  by  Postmaster-General.] 
The  Postmaster-General  shall  contract  for  all  envelopes,  stamped  or  otherwise, 
designed  for  sale  to  the  public,  or  for  use  by  his  own  or  other  Departments,  and 
may  contract  for  them  to  be  plain  or  with  such  printed  matter  as  may  be 
prescribed  by  the  Department  making  requisition  therefor:    Provided,  That 

1239 


Feb.  8,  1895.  Ft.  3.  STATUTES  AT  LARGE.  '  Navigation. 

no  envelope  furnished  by  the  Government  shall  contain  any  busmess  address 
or  advertisement. — (28  Stat.,  624,  chap.  23.) 


See  act  of  June  26,  190fi  (34  Stat.,  476),  which 


express  reference  thereto;  and  see  act  of 


amended   this  section,    although   without  June  30,  1906,  section  2  (34  Stat.,  762), 

[1895,  Jan.  12,  sec.  98.  Libraries  of  Departments,  etc.,  designated  deposi- 
tories of  Government  publications.]  The  libraries  of  the  *  *  *  Executive 
Dopartments,  of  the  United  States  Military  Academy,  and  United  States  Naval 
Academy  are  hereby  constituted  designated  depositories  of  the  Government 
publications,  and  the  superintendent  of  documents  shall  supply  one  copy  of 
said  pubUcations,  in  the  same  form  as  supplied  to  other  depositories,  to  each 
of  said  libraries. — (28  Stat.,  624,  chap.  23.) 

[1895,  Jan.  25.  Oaths,  officers  of  the  Navy,  Marine  Corps,  etc.,  may  admin- 
ister.] That  judges  advocate  of  naval  general  courts-martial  and  courts  of 
inquiry,  and  all  commanders  in  chief  of  naval  squadrons,  commandants  of 
navy  yards  and  stations,  officers  commanding  vessels  of  the  Navy,  and  recruit- 
ing officers  of  the  Navy,  and  the  adjutant  and  inspector,  assistants  adjutant 
and  inspector,  commanding  officers,  recruiting  officers  of  the  JVIarine  Corps,  and 
such  other  officers  of  the  Regular  Navy  and  JVIarine  Corps,  of  the  Naval  Reserve 
Force,  of  the  IMarine  Corps  Reserve,  and  of  the  National  Naval  Volunteers  as  may 
be  hereafter  designated  by  the  Secretary  of  the  Navy,  be,  and  they  are  hereby, 
authorized  to  administer  oaths  for  the  purposes  of  the  administration  of  naval 
justice  and  for  other  purposes  of  naval  administration. — (28  Stat.,  639-640, 
chap.  45;  31  Stat.,  1086,  chap.  834;  39  Stat.,  1171,  chap.  180.) 

This  act  was  expressly  amended  and  reenacted 
to  read  as  above  by  act  of  March  4,  1917  (39 
Stat.,  1171);  it  had  previo\isly  been 
amended  and  reenacted  by  act  of  March  3, 
1901  (31  Stat.,  1086). 

The  National  Naval  Volunteers,  created  by  act 
of  Au^ist  29,  1916  (39  Stat.,  595),  was  abol- 
ished by  act  of  July  1,  1918  (40  Stat.,  708), 

[1895,  Feb.  8,  Navigation  on  the  Great  lakes  and  their  connecting-  and  tribu- 
tary waters  as  far  east  as  Montreal.]  That  the  following  rules  for  preventing 
collisions  shall  be  followed  in  the  navigation  of  all  public  and  private  vessels  of 
the  United  States  upon  the  Great  Lakes  and  their  connecting  and  tributary 
waters  as  far  east  as  IVTontreal. — (28  Stat.,  645,  chap.  64.) 


which  authorized  transfer  of  the  members 
of  that  organization  to  the  Naval  Reserve 
Force  or  Marine  Corps  Reserve. 
See  section  183,  Revised  Statutes,  and  note 
thereto,  for  reference  to  other  laws  relating 
to  the  administration  of  oaths  by  persons 
in  the  naval  ser\dce. 


Regulations  for  preventing  collisions  at  sea: 
See  act  of  August  19,  1890  (26  Stat.,  320), 
and  amendments  thereto. 

Navigation  on  the  Red  River  of  the  North  and 
rivers  emptying  into  the  Gulf  of  Mexico  and 
their  tributaries:  See  sections  4233  and 
4412,  Revised  Statutes,  and  notes  thereto. 

Na\'igation  on  all  harbors,  rivers,  and  inland 
waters  of  the  United  States,  except  the 
Great  Lakes  and  their  connecting  and 
tributary  waters  as  far  east  as  Montreal,  and 
except  the  Red  River  of  the  North  and 


rivers  emptying  into  the  Gulf  of  Mexico 
and  their  tributaries:  See  act  of  June  7,  1897 
(30  Stat.,  96). 

Navigation,  Pearl  Harbor,  Hawaii:  See  act  of 
August  22,  1912  (37  Stat.,  341). 

Rules  governing  motor  boats:  See  act  of  Jime  9, 
1910  (36  Stat.,  4G2). 

See,  generally,  notes  to  sections  4233  and  4412, 
Revised  Statutes;  and  Navy  Regulations, 
1920  (chap.  55),  quoting  laws,  and  regula- 
tions of  the  Department  of  Commerce  "for 
preventing  collisions,"  etc. 


Steam  and  Sail  Vessels. 

Rule  1.  Every  steam  vessel  wliich  is  under  sail  and  not  under  steam,  shall 
be  considered  a  sail  vessel;  and  every  steam  vessel  which  is  under  steam, 
whether  under  sad.  or  not,  shall  be  considered  a  steam  vessel.     The  word  steam 

1240 


Navigation.  Pt.  S.  STATUTES  AT  LARGE.  Feb.  8,  1895. 

vessel  shall  include  any  vessel  propelled  by  machinery.  A  vessel  is  under  way 
within  the  meaning  of  these  rules  when  she  is  not  at  anchor  or  made  fast  to  the 
shore  or  aground. — (28  Stat.,  645,  chap.  64.) 

LIGHTS. 

Rule  2.  The  lights  mentioned  in  the  following  rules  and  no  others  shaU 
be  carried  in  all  weathers  from  sunset  to  sunrise.  The  word  visible  in  these 
rules  when  applied  to  lights  shall  mean  visible  on  a  dark  night  with  a  clear 
atmosphere. — (28  Stat.,  645,  chap.  64.) 

Rule  3.  Except  in  the  cases  hereinafter  expressly  provided  for,  a  steam 
vessel  when  under  way  shall  carry: 

(a)  On  or  in  front  of  the  foremast,  or  if  a  vessel  without  a  foremast,  then 
in  the  forepart  of  the  vessel,  at  a  height  above  the  hull  of  not  less  than  twenty 
feet,  and  if  the  beam  of  the  vessel  exceeds  twenty  feet,  then  at  a  height  above 
the  hull  not  less  than  such  beam,  so,  however,  that  such  height  need  not  exceed 
forty  feet,  a  bright  white  light  so  constructed  as  to  show  an  unbroken  light  over  an 
arc  of  the  horizon  of  twent}^  points  of  the  compass,  so  fixed  as  to  throw  the  light 
ten  points  on  each  side  of  the  vessel,  namely,  from  right  ahead  to  two  points 
abaft  the  beam  on  either  side,  and  of  such  character  as  to  be  visible  at  a  dis- 
tance of  at  least  five  miles. 

(b)  On  the  starboard  side,  a  green  light,  so  constructed  as  to  throw  an 
unbroken  light  over  an  arc  of  the  horizon  of  ten  points  of  the  compass,  so 
fixed  as  to  throw  the  light  from  right  ahead  to  two  points  abaft  the  beam  on  the 
starboard  side,  and  of  such  a  character  as  to  be  visible  at  a  distance  of  at 
least  two  miles. 

(c)  On  the  port  side,  a  red  light,  so  constructed  as  to  show  an  unbroken 
light  over  an  arc  of  the  horizon  of  ten  points  of  the  compass,  so  fixed  as  to  throw 
the  light  from  right  ahead  to  two  points  abaft  the  beam  on  the  port  side,  and 
of  such  a  character  as  to  be  visible  at  a  distance  of  at  least  two  miles. 

(d)  The  said  green  and  red  lights  shall  be  fitted  with  inboard  screens  pro- 
jecting at  least  three  feet  forward  from  the  light,  so  as  to  prevent  these  lights 
from  being  seen  across  the  bow. 

(e)  A  steamer  of  over  one  hundred  and  fifty  feet  register  length  shall  also 
carry  when  under  way  an  additional  bright  light  similar  in  construction  to 
that  mentioned  in  subdivision  (a),  so  fixed  as  to  throw  the  light  all  around 
the  horizon  and  of  such  character  as  to  be  visible  at  a  distance  of  at  least 
three  miles.  Such  additional  light  shall  be  placed  in  line  with  the  keel  at 
least  fifteen  feet  higher  from  the  deck  and  more  than  seventy-five  feet  abaft 
the  light  mentioned  in  subdivision  (a). — (28  Stat.,  645-646,  chap.  64.) 

VESSELS    TOW^NG. 

Rule  4.  A  steam  vessel  having  a  tow  other  than  a  raft  shall  in  addition 
to  the  forward  bright  light  mentioned  in  subdivision  (a)  of  rule  three  carry 
in  a  vertical  line  not  less  than  six  feet  above  or  below  that  light  a  second  bright 
light  of  the  same  construction  and  character  and  fixed  and  carried  in  the  same 
manner  as  the  forward  bright  light  mentioned  in  said  subdivision  (a)  of  rule 
three.     Such  steamer  shall  also  carry  a  small  bright  light  abaft  the  funnel 

1241 


Feb.  8,  1895.  Ft.  S.  STATUTES  AT  LARGE.  Navigation. 

or  after  mast  for  the  tow  to  steer  by,  but  such  light  shall  not  be  visible  forward 
of  the  beam. — (28  Stat.,  646,  chap.  64.) 

Rule  5.  A  steam  vessel  having  a  raft  in  tow  shall,  instead  of  the  forward 
lights  mentioned  in  rule  four,  carry  on  or  in  front  of  the  foremast,  or  if  a  vessel 
without  a  foremast  then  in  the  fore  part  of  the  vessel,  at  a  height  above  the  hull 
of  not  less  than  twenty  feet,  and  if  the  beam  of  the  vessel  exceeds  twenty  feet 
then  at  a  height  above  the  hull  not  less  than  such  beam,  so  however  that  such 
height  need  not  exceed  forty  feet,  two  bright  lights  in  a  horizontal  line  athwart- 
ships  and  not  less  than  eight  feet  apart,  each  so  fixed  as  to  throw  the  light 
all  around  the  horizon  and  of  such  character  as  to  be  visible  at  a  distance  of 
at  least  five  miles.  Such  steamer  shall  also  carry  the  small  bright  steering 
light  aft,  of  the  character  and  fixed  as  required  in  rule  four. — (28  Stat.,  646, 
chap.  64.) 

Rule  6.  A  sailing  vessel  under  way  and  any  vessel  being  towed  shall 
carry  the  side  lights  mentioned  in  rule  three. 

A  vessel  in  tow  shall  also  carry  a  small  bright  light  aft,  but  such  light 
shall  not  be  visible  forward  of  the  beam. — (28  Stat.,  646,  chap.  64.) 

Rule  7.  The  lights  for  tugs  under  thirty  tons  register  whose  principal 
business  is  harbor  towing,  and  for  boats  navigating  only  on  the  River  Saint 
Lawrence,  also  ferryboats,  rafts,  and  canal  boats,  shall  be  regulated  by  rules 
which  have  been  or  may  hereafter  be  prescribed  by  the  Board  of  Supervising 
Inspectors  of  Steam  Vessels. — (28  Stat.,  646,  chap.  64.) 

Rule  8.  Whenever,  as  in  the  case  of  small  vessels  under  way  during  bad 
weather,  the  green  and  red  side  lights  can  not  be  fixed,  these  lights  shall  be 
kept  at  hand  lighted  and  ready  for  use,  and  shall,  on  the  approach  of  or  to  other 
vessels,  be  exhibited  on  their  respective  sides  in  sufficient  time  to  prevent  col- 
lision, in  such  manner  as  to  make  them  most  visible,  and  so  that  the  green  light 
shall  not  be  seen  on  the  port  side,  nor  the  red  light  on  the  starboard  side,  nor, 
if  practicable,  more  than  two  points  abaft  the  beam  on  their  respective  sides. 
To  make  the  use  of  these  portable  lights  more  certain  and  easy,  they  shall  each 
be  painted  outside  with  the  color  of  the  light  they  respectively  contain,  and  shall 
be  provided  with  suitable  screens. — (28  Stat.,  646-647,  chap.  64.) 

Rule  9.  A  vessel  under  one  hundred  and  fifty  feet  register  length,  when 
at  anchor,  shall  carry  forward,  where  it  can  best  be  seen,  but  at  a  height  not 
exceeding  twenty  feet  above  the  hull,  a  white  light  in  a  lantern  constructed 
so  as  to  show  a  clear,  uniform,  and  unbroken  light,  visible  all  around  the  horizon, 
at  a  distance  of  at  least  one  mile. 

A  vessel  of  one  hundred  and  fifty  feet  or  upward  in  register  length,  when 
at  anchor,  shall  carry  in  the  forward  part  of  the  vessel,  at  a  height  of  not  less 
than  twenty  and  not  exceeding  forty  feet  above  the  hull,  one  such  light,  and 
at  or  near  the  stern  of  the  vessel,  and  at  such  a  height  that  it  shall  be  not  less 
than  fifteen  feet  lower  than  the  forward  light,  another  such  light. — (28  Stat., 
647,  chap.  64.) 

Rule  10.  Produce  boats,  canal  boats,  fishing  boats,  rafts,  or  other  water 
craft  navigating  any  bay,  harbor,  or  river  by  hand  power,  horse  power,  sail, 
or  by  the  current  of  the  river,  or  which  shall  be  anchored  or  moored  in  or  near 
the  channel  or  fairway  of  any  bay,  harbor,  or  river,  and  not  otherwise  provided 
for  in  these  rules,  shall  carry  one  or  more  good  white  lights,  which  shall  be  placed 

1242 


Navigation.  Pt.  3.  STATUTES  AT  LARGE.  Feb.  8,  1895. 

in  such  manner  as  shall  be  prescribed  by  the  Board  of  Supervising  Inspectors 
of  Steam  Vessels. — (28  Stat.,  647,  chap.  64.) 

Rule  11.  Open  boats  shall  not  be  obliged  to  carry  the  side  lights  required 
for  other  vessels,  but  shall,  if  they  do  not  carry  such  lights,  carry  a  lantern 
having  a  green  slide  on  one  side  and  a  red  slide  on  the  other  side;  and  on  the 
approach  of  or  to  other  vessels,  such  lantern  shall  be  exhibited  in  sufficient  time 
to  prevent  collision,  and  in  such  a  manner  that  the  green  light  shall  not  be  seen 
on  the  port  side,  nor  the  red  light  on  the  starboard  side.  Open  boats,  when  at 
anchor  or  stationary,  shall  exhibit  a  bright  white  light.  They  shall  not,  how- 
ever, be  prevented  from  using  a  flare-up  in  addition  if  considered  expedient. — 
(28  Stat.,  647,  chap.  64.) 

Rule  12.  Sailing  vessels  shall  at  all  times,  on  the  approach  of  any  steamer 
during  the  nighttime,  show  a  lighted  torch  upon  that  point  or  quarter  to 
which  such  steamer  shall  be  approaching. — (28  Stat.,  647,  chap.  64.) 

Rule  13.  The  exhibition  of  an}^  light  on  board  of  a  vessel  of  war  or  revenue 
cutter  of  the  United  States  may  be  suspended  whenever,  in  the  opinion  of  the 
Secretary  of  the  Navy,  the  commander  in  chief  of  a  squadron,  or  the  commander 
of  a  vessel  acting  singly,  the  special  character  of  the  service  may  require  it. — 
(28  Stat.,  647,  chap.  64.) 

FOG    SIGNALS. 

Rule  14.  A  steam  vessel  shall  be  provided  with  an  efficient  whistle, 
sounded  by  steam  or  by  some  substitute  for  steam,  placed  before  the  funnel 
not  less  than  eight  feet  from  the  deck,  or  in  such  other  place  as  the  local  inspec- 
tors of  steam  vessels  shall  determine,  and  of  such  character  as  to  be  heard  in 
ordinary  weather  at  a  distance  of  at  least  two  miles,  and  with  an  efficient  bell, 
and  it  is  hereby  made  the  duty  of  the  United  States  local  inspectors  of  steam 
vessels  when  inspecting  the  same  to  require  each  steamer  to  be  furnished  with 
such  whistle  and  bell.  A  sailing  vessel  shall  be  provided  with  an  efficient  fog 
horn  and  with  an  efficient  bell. 

Whenever  there  is  tliick  weather  by  reason  of  fog,  mist,  falling  snow,  heavy 
rainstorms,  or  other  causes,  whether  by  day  or  by  night,  fog  signals  shall  be 
used  as  follows : 

(a)  A  steam  vessel  under  way,  excepting  only  a  steam  vessel  with  raft  in 
tow,  shall  sound  at  intervals  of  not  more  than  one  minute  three  distinct  blasts 
of  her  whistle. 

(b)  Every  vessel  in  tow  of  another  vessel  shall,  at  intervals  of  one  minute, 
sound  four  bells  on  a  good  and  efficient  and  properly  placed  bell  as  follows: 
By  striking  the  bell  twice  in  quick  succession,  followed  by  a  little  longer  interval, 
and  then  again  striking  twice  in  c{uick  succession  (in  the  manner  in  which  four 
bells  is  struck  in  indicating  time) . 

(c)  A  steamer  with  a  raft  in  tow  shall  sound  at  intervals  of  not  more  than 
one  minute  a  screeching  or  Modoc  whistle  for  from  three  to  five  seconds. 

(d)  A  sailing  vessel  under  way  and  not  in  tow  shall  sound  at  intervals  of 
not  more  than  one  minute — 

If  on  the  starboard  tack  with  wind  forward  of  abeam,  one  blast  of  her  fog 
horn ; 

54641°— 22 79  1243 


Feb.  8,  1895.  Pt.  S.  STATUTES  AT  LARGE.  Navigation. 

If  on  the  port  tack  with  wind  forward  of  the  beam,  two  blasts  of  her  fog 
horn ; 

If  she  has  the  wind  abaft  the  beam  on  either  side,  three  blasts  of  her  fog 
horn. 

(e)  Any  vessel  at  anchor  and  any  vessel  aground  in  or  near  a  channel  or 
fairway  shall  at  intervals  of  not  more  than  two  minutes  ring  the  bell  rapidly 
for  three  to  five  seconds. 

(f)  Vessels  of  less  than  ten  tons  registered  tonnage,  not  being  steam  ves- 
sels, shall  not  bo  obliged  to  give  the  above-mentioned  signals,  but  if  they  do 
not  they  shall  make  some  other  efficient  sound  signal  at  intervals  of  not  more 
than  one  minute. 

(g)  Produce  boats,  fishing  boats,  rafts,  or  other  water  craft  navigating  by 
hand  power  or  by  the  current  of  the  river,  or  anchored  or  moored  in  or  near  the 
channel  or  fairway  and  not  in  any  port,  and  not  otherwise  provided  for  in  these 
rules,  shall  sound  a  fog  horn,  or  equivalent  signal,  at  intervals  of  not  more  than 
one  minute.— (28  Stat.,  647-648,  chap.  64.) 

Rule  15.  Every  vessel  shall,  in  thick  weather,  by  reason  of  fog,  mist, 
falling  snow,  heavy  rainstorms,  or  other  causes,  go  at  moderate  speed.  A 
steam  vessel  hearing,  apparently  not  more  than  four  points  from  right  ahead, 
the  fog  signal  of  another  vessel  shall  at  once  reduce  her  speed  to  bare  steerage- 
way,  and  navigate  with  caution  until  the  vessels  shall  have  passed  each  other. — 
(28  Stat.,  648,  chap.  64.) 

Steering  and  Sailing  Rules. 

sailing  vessels. 

Rule  16.  When  two  sailing  vessels  are  approaching  one  another  so  as  to 
involve  risk  of  collision  one  of  them  shall  keep  out  of  the  way  of  the  other,  as 
follows,  namely: 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the  way  of  a  vessel 
which  is  closehauled. 

(b)  A  vessel  which  is  closehauled  on  the  port  tack  shall  keep  out  of  the 
way  of  a  vessel  which  is  closehauled  on  the  starboard  tack. 

(c)  Wben  both  are  running  free,  with  the  wind  on  different  sides,  the  vessel 
which  has  the  wind  on  the  port  side  shall  keep  out  of  the  way  of  the  other. 

(d)  Wlien  they  are  running  free,  with  the  wind  on  the  same  side,  the  vessel 
which  is  to  windward  shall  keep  out  of  the  way  of  the  vessel  which  is  to  lee- 
ward.—(28  Stat.,  648,  chap.  64.) 

STEAM    VESSELS. 

Rule  17.  When  two  steam  vessels  are  meeting  end  on,  or  nearly  end  on,  so 
as  to  involve  risk  of  collision  each  shall  alter  her  course  to  starboard,  so  that 
each  shall  pass  on  the  port  side  of  the  other. — (28  Stat.,  648,  chap.  64.) 

Rule  18. — When  two  steam  vessels  are  crossing  so  as  to  involve  risk  of 
collision  the  vessel  which  has  the  other  on  her  own  starboard  side  shall  keep 
out  of  the  way  of  the  other. — (28  Stat.,  648,  chap.  64.) 


1244 


Navigation.  Pt.  3.  STATUTES  AT  LARGE.  Feb.  8,  1895. 

Rule  19.  When  a  steam  vessel  and  a  sailing  vessel  are  proceeding  in  such 
directions  as  to  involve  risk  of  collision  the  steam  vessel  shall  keep  out  of  the 
way  of  the  sailing  vessel. — (28  Stat.,  648,  chap.  64.) 

Rule  20. — Where,  hj  any  of  the  rules  herein  prescribed,  one  of  two  vessels 
shall  keep  out  of  the  way,  the  other  shall  keep  her  course  and  speed. — (28 
Stat.,  649,  chap.  64.) 

Rule  21.  Every  steam  vessel  which  is  directed  by  these  rules  to  keep  out  of 
the  way  of  another  vessel  shall,  on  approaching  her,  if  necessary,  slacken  her 
speed  or  stop  or  reverse. — (28  Stat.,  649,  chap.  64.) 

Rule  22.  Notwithstanding  anything  contained  in  these  rules  every  vessel 
overtaking  any  other  shall  keep  out  of  the  way  of  the  overtaken  vessel. — (28 
Stat.,  649,  chap.  64.) 

Rule  23.  In  all  weathers  every  steam  vessel  under  w^ay  in  taking  any 
course  authorized  or  required  by  these  rules  shall  indicate  that  course  by  the 
following  signals  on  her  whistle,  to  be  accompanied  whenever  required  by  cor- 
responding alteration  of  her  helm ;  and  every  steam  vessel  receiving  a  signal 
from  another  shall  promptly  respond  wdth  the  same  signal  or,  as  provided  in 
Rule  Twenty-six : 

One  blast  to  mean,  "I  am  directing  my  course  to  starboard." 

Two  blasts  to  mean,  ''I  am  directing  my  course  to  port."  But  the  giving 
or  answering  signals  by  a  vessel  required  to  keep  her  course  shall  not  vary  the 
duties  and  obligations  of  the  respective  vessels. — (28  Stat.,  649,  chap.  64.) 

Rule  24.  That  in  all  narrow  channels  where  there  is  a  current,  and  in  the 
rivers  Saint  Mary,  Saint  Clair,  Detroit,  Niagara,  and  Saint  Lawrence,  when 
two  steamers  are  meeting,  the  descending  steamer  shall  have  the  right  of  way, 
and  shall,  before  the  vessel  shall  have  arrived  within  the  distance  of  one-half 
mile  of  each  other,  give  the  signal  necessary  to  indicate  which  side  she  elects  to 
take.— (28  Stat.,  649,  chap.  64.) 

Rule  25.  In  all  channels  less  than  five  hundred  feet  in  width,  no  steam 
vessel  shall  pass  another  going  in  the  same  direction  unless  the  steam  vessel 
ahead  be  disabled  or  signify  her  willingness  that  the  steam  vessel  astern  shall 
pass,  when  the  steam  vessel  astern  may  pass,  subject,  however,  to  the  other 
rules  applicable  to  such  a  situation.  And  when  steam  vessels  proceeding  in 
opposite  directions  are  about  to  meet  in  such  channels,  both  such  vessels  shall 
be  slowed  down  to  a  moderate  speed,  according  to  the  circumstances. — (28 
Stat.,  649,  chap.  64.) 

Rule  26.  If  the  pilot  of  a  steam  vessel  to  which  a  passing  signal  is  sounded 
deems  it  unsafe  to  accept  and  assent  to  said  signal,  he  shall  not  sound  a  cross 
signal;  but  in  that  case,  and  in  every  case  where  the  pilot  of  one  steamer  fails 
to  understand  the  course  or  intention  of  an  approaching  steamer,  whether 
from  signals  being  given  or  answered  erroneously,  or  from  other  causes,  the 
pilot  of  such  steamer  so  receiving  the  first  passing  signal,  or  the  pilot  so  in 
doubt,  shall  sound  several  short  and  rapid  blasts  of  the  whistle;  and  if  the 
vessels  shall  have  approached  within  half  a  mile  of  each  other  both  shall  reduce 
their  speed  to  bare  steerageway,  and,  if  necessary,  stop  and  reverse.  [28  Stat., 
649,  chap.  64.] 

Rule  27.  In  obeying  and  construing  these  rules  due  regard  shall  be  had 
to  all  dangers  of  navigation  and  collision  and  to  any  special  circumstances 

1245 


Feb.  19,  1895.  Pi.  3.  STATUTES  AT  LARGE.  Navigation. 

which  may  render  a  departure  from  the  above  rules  necessary  in  order  to 
avoid  immediate  danger.     [28  Stat.,  649,  chap.  64.] 

Rule  28.  Nothing  in  these  rules  shall  exonerate  any  vessel,  or  the  owner 
or  master  or  crew  thereof,  from  the  consequences  of  any  neglect  to  carry  lights 
or  signals,  or  of  any  neglect  to  keep  a  proper  lookout,  or  of  a  neglect  of  any 
precaution  which  may  be  required  by  the  ordinary  practice  of  seamen,  or  by 
the  special  circumstances  of  the  case.     [28  Stat.,  649,  chap.  64.] 

[1895,  Feb.  8,  sec.  2.  Violation  of  rules,  navigation  of  Great  lakes,  etc. ; 
penalty.]  That  a  fine,  not  exceeding  two  hundred  dollars,  may  be  imposed  for 
the  violation  of  any  of  the  provisions  of  this  Act.  The  vessel  shall  be  liable 
for  the  said  penalty,  and  may  be  seized  and  proceeded  against,  by  way  of 
libel,  in  the  district  court  of  the  United  States  for  any  district  within  which 
such  vessel  may  be  found.     (28  Stat.,  649,  chap.  64.) 

[1895,  Feb.  8,  sec.  3.  Eegulations  to  be  established  for  enforcement  of  act; 
steam  vessels  passing  each  other;  etc.]  That  the  Secretary  of  the  Treasury  of 
the  United  States  shall  have  authority  to  establish  all  necessary  regulations, 
not  inconsistent  with  the  provisions  of  this  Act,  required  to  carry  the  same  into 
effect. 

The  Board  of  Supervising  Inspectors  of  the  United  States  shall  have 
authority  to  establish  such  regulations  to  be  observed  by  all  steam  vessels  in 
passing  each  other,  not  inconsistent  with  the  provisions  of  this  Act,  as  they 
shall  from  time  to  time  deem  necessary;  and  all  regulations  adopted  by  the 
said  Board  of  Supervising  Inspectors  under  the  authority  of  this  Act,  when 
approved  by  the  Secretary  of  the  Treasury,  shall  have  the  force  of  law.  Two 
printed  copies  of  any  such  regulations  for  passing,  signed  by  them,  shall  be 
furnished  to  each  steam  vessel,  and  shall  at  all  times  be  kept  posted  up  in 
conspicuous  places  on  board. — (28  Stat.,  649-650,  chap.  64.) 

act  of  February  14,   1903  (32  Stat.,  825- 


The  authority  of  the  Secretary  of  the  Treasury 
with  respect  to  this  and  other  navigation 
laws  of  the  United  States,  was  vested  in 
the  Secretary  of  Commerce  and  Labor  by 


830) ;  and  in  the  Secretary  of  Commerce  by 
act  of  March  4,  1913  (37  Stat.,  736). 


[1895,  Feb.  8,  sec.  4.  Repeal  of  inconsistent  laws  relating  to  navigation.] 
That  all  laws  or  parts  of  laws,  so  far  as  applicable  to  the  navigation  of  the 
Great  Lakes  and  their  connecting  and  tributary  waters  as  far  east  as  Montreal, 
inconsistent  with  the  foregoing  rules  are  hereby  repealed. — (28  Stat.,  650, 
chap.  64.) 

[1895,  Feb.  19.  Rules  for  navigation  of  certain  inland  waters.]  That  on 
and  after  March  first,  eighteen  hundred  and  ninety-five,  the  provisions  of 
sections  forty-two  hundred  and  thirty-three,  forty-four  hundred  and  twelve, 
and  forty-four  hundred  and  thirteen  of  the  Revised  Statutes  and  regulations 
pursuant  thereto  shall  be  followed  on  the  harbors,  rivers  and  inland  waters 
of  the  United  States. 

The  provisions  of  said  sections  of  the  Revised  Statutes  and  regulations  pur- 
suant thereto  are  hereby  declared  special  rules  duly  made  by  local  authority 
relative  to  the  navigation  of  harbors,  rivers  and  inland  waters  as  provided 
for  in  Article  thirty,  of  the  iVct  of  August  nineteenth,  eighteen  hundred  and 
ninety,  entitled  "An  Act  to  adopt  regulations  for  preventing  collisions  at  sea." 

Sec.  2.  The  Secretary  of  the  Treasury  is  hereby  authorized,  empowered 
and  directed  from  time  to  time  to  designate  and  define  by  suitable  bearings 

1246 


Pt.  3.  STATUTES  AT  LARGE.  Mar.  2,  1895. 

or  ranges  with  lighthouses,  light  vessels,   buoy's  or  coast  objects,   the  lines 
dividing  the  high  seas  from  rivers,  harbors  and  inland  waters. 

Sec.  3.  Collectors  or  other  chief  officers  of  the  customs  shall  require  all 
sail  vessels  to  be  furnished  with  proper  signal  lights.  Every  such  vessel  that 
shall  be  navigated  without  complying  with  the  Statutes  of  the  United  States, 
or  the  regulations  that  may  be  lawfully  made  thereunder,  shall  be  liable  to  a 
penalty  of  two  hundred  dollars,  one-half  to  go  to  the  informer;  for  which 
sum  the  vessel  so  navigated  shall  be  liable,  and  may  be  seized  and  proceeded 
against  by  way  of  libel  in  any  district  court  of  the  United  States  having  juris- 
diction of  the  offense. 

Sec.  4.  The  words  ''inland  waters"  used  in  this  Act  shall  not  be  held 
to  include  the  Great  Lakes  and  their  connecting  and  tributary  waters  as  far 
east  as  Montreal;  and  this  Act  shall  not  in  any  respect  modify  or  affect  the 
provisions  of  the  Act  entitled  "An  Act  to  regulate  navigation  on  the  Great 
Lakes  and  their  connecting  and  tributary  waters,"  approved  February  eighth, 
eighteen  hundred  and  ninety-five. — (28  Stat.,  672,  chap.  102.) 

under  sections  2  and  3  of  this  act,  were 


transferred  to  the  Secretary  of  Commerce 
and  his  subordinates  by  act  of  February 
14,  1903  (32  Stat.,  82.5-830),  aa  amended 
by  act  of  March  4,  1913  (37  Stat.,  736). 
See  sections  4233  and  4412,  Revised  Statutes, 
and  acts  of  August  19,  1890  (26  Stat.,  320), 
February  8,  1895  (28  Stat.,  645),  and 
June  7,  1897  (30  Stat.,  96),  and  notes 
thereto. 


Sections  1  and  3  of  this  act,  and  sections  4233, 

4412,   and  4413,    Re-vised   Statutes,    were 

repealed,  except  in  so  far  as   concerned 

"the  Great   Lakes  and  their  connecting 

and  tributary  waters  as  far  east  as  Mont- 
real   and    the    Red   River  of  the   North 

and    rivers    emptying    into    the    Gulf    of 

Mexico,   and   their  tributaries"':   See  act 

of  June  7,  1897,  section  5  (30  Stat.,  103). 
The  duties  of  the  Secretary  of  the  Treasury 

and  officers  of  the  Treasiuy  Department, 

[1895,  Mar.  2,  sec.  5.  Official  bonds,  examination  and  renewal  of;  liability 
pending  successor's  appointment.]  Hereafter  every  officer  required  by  law  to 
take  and  approve  official  bonds  shall  cause  the  same  to  be  examined  at  least 
once  every  two  years  for  the  purpose  of  ascertaining  the  sufficiency  of  the  sure- 
ties thereon;  and  every  officer  having  power  to  fix  the  amount  of  an  official 
bond  shall  examine  it  to  ascertain  the  sufficiency  of  the  amount  thereof  and 
approve  or  fix  said  amount  at  least  once  in  two  years  and  as  much  oftener  as 
he  may  deem  it  necessary. — (28  Stat.,  807-808,  chap.  177.) 

Hereafter  every  officer  whose  duty  it  is  to  take  and  approve  official  bonds 
shall  cause  all  such  bonds  to  be  renewed  every  four  years  after  their  dates,  but 
he  may  require  such  bonds  to  be  renewed  or  strengthened  oftener  if  he  deem 
such  action  necessary.  In  the  discretion  of  such  officer  the  requirement  of  a 
new  bond  may  be  waived  for  the  period  of  service  of  a  bonded  officer  after  the 
expiration  of  a  four-year  term  of  service  pending  the  appointment  and  qualifica- 
tion of  his  successor:  Provided,  That  the  nonperformance  of  any  requirement 
of  this  section  on  the  part  of  any  official  of  the  Government  shall  not  be  held  to 
affect  in  any  respect  the  liability  of  principal  or  sureties  on  any  bond  made  or  to 
be  made  to  the  United  States:  Provided  further,  That  the  liability  of  the  prin- 
cipal and  sureties  on  all  official  bonds  shall  continue  and  cover  the  period  of 
service  ensuing  until  the  appointment  and  qualification  of  the  successor  of  the 
prmcipal     *     *     *     .—(28  Stat.,  808,  chap.  177.) 

See  sections  1383-1385,  Revised  Statutes,  and  notes  thereto. 

[1895,  Mar.  2.  Retired  officers,  detailed  to  colleges.]  That  any  retired 
officer  of  the  Navy  or  Marine  Corps  may,  on  his  own  application,  be  detailed  to 

1247 


Apr.  24,  1806.  Pt.  S.  STATUTES  AT  LARGE. 

service  as  a  teacher  or  professor  in  any  school  or  college,  but  while  so  serving 
such  officer  shall  be  allowed  no  additional  compensation. — (28  Stat.,  826,  chap. 

186.) 

See  section  1225,  Revised  Statutes,  and  note  thereto. 

[1895,  Mar.  2.  Quarters,  training  force.]  Naval  TraininCx  Station^ 
Coasters  Harbor  Island,  Rhode  Island  (for  apprentices)  ;  *  *  * 
Provided,  That  no  part  of  the  personnel  of  the  training  force  shall  be  quartered 
on  shore  except  in  case  of  sickness. — (28  Stat.,  827,  chap.  186.) 

[1895,  Mar.  2.  Courts-martial  for  naval  cadets.]  That  the  Secretary  of 
the  Navy  shall  have  power  to  convene  general  courts-martial  for  the  trial  of 
naval  cadets,  subject  to  the  same  limitations  and  conditions  now  existing  as  to 
other  general  courts-martial,  and  to  approve  the  proceedings  and  execute  the 
sentences  of  such  courts,  except  the  sentences  of  suspension  and  dismissal, 
which,  after  having  been  approved  by  the  Superintendent,  shall  not  be  carried 
into  effect  until  confirmed  by  the  President. — (28  Stat.,  838,  chap.  186.) 

See  note  to  section  1519,  Revised  Statutes. 

[1895,  Mar.  2.  Disposal  of  useless  papers.]  That  the  Act  entitled  "An  Act 
to  authorize  and  provide  for  the  disposition  of  useless  papers  in  the  Executive 
Department,"  approved  February  sixteenth,  eighteen  hundred  and  eighty-nine, 
be,  and  the  same  is  hereby,  amended  so  as  to  include  in  its  provisions  any  ac- 
cumulation of  files  of  papers  of  a  like  character  therein  described  now  or  here- 
after in  the  various  public  buildings  under  the  control  of  the  several  Executive 
Departments  of  the  Government. — (28  Stat.,  933,  chap.  189.) 

See  act  of  February  16,  1889  (25  Stat.,  672),  and  references  thereunder. 

[1895,  Mar.  2.  Estimates,  printing  and  binding.]  And  it  shall  be  the  duty 
of  the  Public  Printer  to  submit  to  Congress  at  the  beginning  of  its  next  regular 
session,  estimates  in  detail  under  the  head  of  printing  and  binding  for  the  service 
of  the  fiscal  year  eighteen  hundred  and  ninety-seven  and  annually  thereafter, 
covering  appropriations  requisite  for  all  work  to  be  done  and  services  to  be  ren- 
dered under  his  direction  by  the  provisions  of  the  said  Act  and  not  previously 
required  of  him    *     *     *     .—(28  Stat.,  961,  chap.  189.) 

The  words  "said  Act"  in  the  provision  refer 
to  the  act  of  Januaiy  12,  1895  (28  Stat., 
601-624,  chap.  23);  see  section  27  of  that 


act  (28  Stat.,  604),  and  references  there- 
under, as  to  estimates  for  printing  and 
binding. 


[1896,  Mar.  28.  Commissions  of  officers.]     That  hereafter  the  commissions 

of  all  officers  under  the  direction  and  control  of  the  Secretary  of  the  Treasury, 

the  Secretary  of  War,  the  Secretary  of  the  Navy,  and  the  Secretary  of  Agii- 

culture  shall  be  made  out  and  recorded  in  the  respective  Departments  under 

which  they  are  to  serve,  and  the  Department  seal  affixed  thereto,  any  laws  to 

the  contrary  notwithstanding:  Provided,  That  the  said  seal  shall  not  be  affix:ed 

to  any  such  commission  before  the  same  shall  have  been  signed  by  the  President 

of  the  United  States.— (29  Stat.,  75,  chap.  73.) 

See  note  to  Constitution,  Article  IT,  section  3,  Statutes,    under    "The   Secretary  of  the 

under  "II.  Duty  to  commission  officers";  Navy  represents  the  President." 

and   see    note    to   section   417,    Revised 

[1896,  Apr.  24,  sec.  2.  Apprentices  additional  to  number  of  enlisted  persons.] 
That  all  apprentices  of  the  Navy,  whether  at  a  training  station  or  on  board 

1248 


Pt.  S.  STATUTES  AT  LARGE.  Jiine  10,  1896. 

an  apprentice  training  ship,  shall  be  additional  to  the  number  of  enlisted 
persons  allowed  by  law  for  the  Navy. — (29  Stat.,  97,  chap.  120.) 

See  note  to  section  1417,  Re\'ised  Statutes. 

[1896,  May  22.  Condemned  ordnance,  etc.,  loan  or  gift  of.]  That  the 
Secretary  of  War  and  the  Secretary  of  the  Navy  are  each  hereby  authorized, 
in  their  discretion,  to  loan  or  give  to  soldiers'  monument  associations,  posts 
of  the  Grand  Army  of  the  Republic,  and  municipal  corporations,  condemned 
ordnance,  guns,  and  cannon  balls  which  may  not  be  needed  in  the  service  of 
either  of  said  Departments.  Such  loan  or  gift  shall  be  made  subject  to  rules 
and  regulations  covering  the  same  in  each  Department,  and  the  Government 
shall  be  at  no  expense  in  connection  with  any  such  loan  or  gift. — (29  Stat., 
133-134,  chap.  231.) 

See  section  418,  Revised  Statutes,  and  note  thereto. 

[1896,  May  28.  Appropriation  acts,  footing  of  paragraphs  to  determine 
amount  appropriated.]  That  hereafter  the  total  amount  appropriated  in  the 
various  paragraphs  of  an  appropriation  Act  shall  be  determined  by  the  correct 
footing  up  of  the  specific  sums  or  rates  appropriated  in  each  paragraph  con- 
tained therein  unless  otherwise  expressly  provided. — (29  Stat.,  148,  chap.  252.) 

[1896,  May  28,  sec  2.  Liability  to  draft,  officers  in  merchant  service; 
wages  for  naval  service.]  No  master,  mate,  pilot,  or  engineer  of  steam  vessels 
licensed  under  title  fifty-two  of  the  Revised  Statutes,  pages  forty-three  hundred 
and  ninety-nine  to  forty-five  hundred,  shall  be  liable  to  draft  in  time  of  war, 
except  for  the  performance  of  duties  such  as  required  by  his  license;  and  while 
performing  such  duties  in  the  service  of  the  United  States  every  such  master, 
mate,  pilot,  or  engineer  shall  be  entitled  to  the  highest  rate  of  wages  paid  in 
the  merchant  marine  of  the  United  States  for  similar  services;  and  if  killed  or 
wounded  while  performing  such  duties  under  the  United  States,  they,  or  their 
heirs,  or  their  legal  representatives,  shall  be  entitled  to  all  the  privileges  ac- 
corded to  soldiers  and  sailors  serving  in  the  Army  or  Navy,  under  the  pension 
laws  of  the  United  States.— (29  Stat.,  189,  chap.  255;  38  Stat.,  765-766,  chap. 
334.) 

This  pro\'ision  was  expressly  amended  and  reenacted  to  read  as  above  by  act  of  October  22, 
1914  (38  Stat.,  765-766). 

[1896,  June  10.  Allotments  of  pay.]  That  the  Secretary  of  the  Navy  be, 
and  he  is  hereby,  authorized  to  permit  officers  of  the  Navy  and  the  Marine 
Corps  to  make  allotments  from  their  pay,  under  such  regulations  as  he  may 
prescribe,  for  the  support  of  their  families  or  relatives,  for  their  own  savings, 
or  for  other  proper  purposes,  during  such  time  as  they  may  be  absent  at  sea,  on 
distant  dut}^,  or  under  other  circumstances  warranting  such  action. —  (29  Stat., 
361,  chap.  399.) 

See  sections  1430,  1551,  1576,  and  3477,  Revised  Statutes,  and  notes  thereto. 

[1896,  June  10.  Officers  reappointed,  credit  for  previous  service.]  That  all 
officers  who  have  been  or  may  be  appointed  to  any  corps  of  the  Navy  or  to  the 
Marine  Corps  after  service  in  a  different  corps  of  the  Navy  or  of  the  Marine 
Corps  shall  have  all  the  benefits  of  their  previous  service  in  the  same  manner  as 
if  said  appointments  were  a  reentry  into  the  Navy  or  into  the  Marine  Corps. — 
(29  Stat.,  361,  chapter,  399.) 

1249 


June  10,  1896. 


Pt.  3.  STATUTES  AT  LARGE. 


This  enactment  superseded  a  similar  provision 
contained  in  the  act  of  July  2(i,  1894  (28 
Stat.,  12;V),  which  did  not  make  specific 
reference  to  the  Marine  Corps. 


See  sections  1443,  1556,  and  1600,  Revised 
Statutes;  and  see  act  of  March  3,  1883  (22 
Stat.,  473). 


[1896,  June  10.  Officers  employed  by  contractors.]  That  hereafter  no  pay- 
ment shall  be  made  from  appropriations  made  by  Congress  to  any  officer  in 
the  Navy  or  Marine  Corps  on  the  active  or  retired  list  while  such  officer  is 
employed,  after  June  thirtieth,  eighteen  hundred  and  ninety-seven,  by  any 
person  or  company  furnishing  naval  supplies  or  war  material  to  the  Govern- 
ment; and  such  employment  is  hereby  made  unlawful  after  said  date. —  (29 
Stat.,  361,  chap.  399.) 

The  question  whether  this  law  prevents  re- 
tired officers  from  serving  as  "directors"  of  a 
company  furnishing  naval  supplies  to  the  Gov- 
ernment depends  upon  the  construction  of  the 
words  "employed"  and  "employment"  as 
used  therein.  It  would  seem  that  retired 
officers  can  not  legally  serve  in  this  capacity. 
(Opinion  of  Judge  Advocate  General,  June  6, 
1908;  file  9736-9.) 

Without  regard  to  whether  employment  by  a 
retired  officer  as  superintendent  or  foreman 
with  contractors  performing  work  on  contracts 
at  a  naval  training  station  is  specifically  pro- 
hibited by  law  or  regulation,  the  acceptance  of 
such  employment  by  a  retired  oflBcer  would  be 
regarded  by  the  Department  as  in  the  highest 
degree  objectionable  and  improper.  (De- 
partment's letter.  May  26,  1910;  file  9736-17.) 


See  sections  1440,  1763-1765,  and  1860,  Re- 
\'ised  Statutes,  and  notes  thereto,  for  other 
restrictions  upon  employment  of  naval 
officers;  see  also  sections  41  and  112,  Crim- 
inal Code,  act  of  March  4,  1909  (35  Stat., 
1097,  1108). 
Nature     of     employment     forbidden. — 

"The  law  makes  no  distinction  as  to  the  char- 
acter of  ser\ace  rendered  by  a  retired  officer  of 

the  Navy  who  might  be  in  the  employ  of  a 

contractor,   and  makes  no  provision   for  ex- 
ceptions   on    any    ground."     Therefore,    the 

acceptance  by  a  retired  officer  of  employment 

as  assistant  superintendent  of  motive  power 

with  a  company  furnishing  naval  supplies  or 

war  material  for  the  Government  would  be 

unlawful,  even  though  such  officer  would  have 

nothing  to  do  with  the  manufacture  or  sale  of 

products.     (Department's  letter,   January   19, 

1910;  file  9736-14.) 

[1896,  June  10.  Tobacco,  advertisement  for.]  And  the  Secretary  of  the 
Navy  is  hereby  authorized  and  directed  to  cause  advertisement  to  be  made  for 
tobacco  for  the  use  of  the  Navy,  as  the  needs  of  the  service  may  require,  in  the 
manner  prescribed  by  law  for  other  supplies.  Bidders  shall  submit  with  their 
proposals  a  sample  of  the  tobacco  which  they  propose  to  furnish,  and  the 
contract  shall,  in  the  discretion  of  the  Department,  be  awarded  to  the  bidder 
whose  sample  is  found  by  a  board  of  officers  to  be  the  best  adapted  for  use  in 
the  Navy.— (29  Stat.,  370,  chap.  399.) 

See  sections  3718,  3721,  Revised  Statutes,  and  notes  thereto. 

[1896,  June  10.  Model  tank  for  experiments.]  For  making  plans,  examining 
and  preparing  the  ground,  and  other  preliminary  work  toward  the  construction  of . 
a  model  tank,  with  all  buildings  and  appHances,  to  be  built  upon  the  grounds  of 
the  navy  yard  at  Washington,  District  of  Columbia,  under  the  Bureau  of  Con- 
struction and  Repair  of  the  Navy  Department,  which  shall  conduct  therein 
the  work  of  investigating  and  determining  the  most  suitable  and  desirable 
shapes  and  forms  to  be  adopted  for  United  States  naval  vessels,  seven  thousand 
five  hundred  dollars:  Provided,  That  upon  the  authorization  of  the  Secretary 
of  the  Navy  experiments  may  be  made  at  this  establishment  for  private  ship- 
builders, who  shall  defray  the  cost  of  material  and  of  labor  of  per  diem  employees 
for  such  experiments:  And  provided  further,  That  the  results  of  such  private 
experiments  shall  be  regarded  as  confidential  and  shall  not  be  divulged  without 
the  consent  of  the  shipbuilder  for  whom  they  may  be  made. — (29  Stat.,  372, 
chap.  399.) 


1250 


Navigation. 


Pt.  3.  STATUTES  AT  LARGE. 


June  7,  1897. 


[1896,  June  10.  Mileage,  Marine  Corps.]  And  hereafter  ofRcers  of  the 
Marine  Corps  travehng  under  orders  without  troops  shall  be  allowed  the  same 
mileage  as  is  now  allowed  officers  of  the  Navy  traveling  without  troops. — 
(29  Stat.,  376,  chap.  399.) 

See  notes  to  sections  1566  and  1612,  Revised  Statutes. 

[1897,  Feb.  13.  Passed  assistant  surgeons  to  be  commissioned.]  That  passed 
assistant  surgeons  now  borne  upon  the  Navy  Register  shall  be  commissioned 
as  such  by  the  President,  such  commissions  to  bear  the  dates  upon  which  said 
passed  assistant  surgeons,  respectively,  received  their  appointments  as  such; 
and  hereafter  assistant  surgeons  shall  be  regularly  promoted  and  commissioned 
as  passed  assistant  surgeons,  and  passed  assistant  surgeons  as  surgeons,  sub- 
ject to  such  examinations  as  may  be  prescribed  by  the  Secretary  of  the  Navy: 
Provided,  however,  That  no  examination  of  passed  assistant  surgeons  shall  be 
ordered  until  the  expiration  of  six  months  from  the  passage  of  this  Act,  during 
which  time  promotions  shall  be  made  as  now  provided  by  law. —  (29  Stat., 
526,  chap.  221.) 

See  note  to  section  1368,  Re\dsed  Statutes  under  "Passed  assistant  surgeons.'- 

[1897,  Mar.  3,  sec.  7.  Applications  for  patents,  heads  of  Departments  to  be 
represented.]  That  in  every  case  where  the  head  of  any  Department  of  the 
Government  shall  request  the  Commissioner  of  Patents  to  expedite  the  consid- 
eration of  an  application  for  a  patent  it  shall  be  the  duty  of  such  head  of  a 
Department  to  be  represented  before  the  Commissioner  in  order  to  prevent 
the  improper  issue  of  a  patent. — (29  Stat.,  694,  chap.  391.) 

See  note  to  section  4894,  Revised  Statutes. 

[1897,  June  4.  Branch  hydrographic  offices.]  That  the  Secretary  of  the 
Navy  is  hereby  authorized  to  establish  branch  hydrographic  offices  at  Duluth, 
in  the  State  of  Minnesota,  Sault  Sainte  Marie,  in  the  State  of  Michigan,  and 
Buffalo,  in  the  State  of  New  York,  the  same  to  be  conducted  under  the  pro- 
visions of  an  Act  entitled  "An  Act  to  establish  a  hydrographic  office  in  the 
Navy  Department,"  approved  June  twenty-first,  eighteen  hundred  and  sixty- 
six.— (30  Stat.,  39,  chap.  2.) 

The  act  of  June  21,  1866,  referred  to  in  this  pro-  hydrographic  offices  at  Boston,  New  York, 

\'ision,  is  embodied  in  section  431,  R.evised  Philadelphia,  Baltimore,  Norfolk,  Savan- 

Statutes.  nah,  New  Orleans,  San  Francisco,  (Portland, 

See  sections  431— i33,   ReAosed  Statutes,   and  Oregon),  Portland  (Maine),  Chicago,  Cleve- 

notes  thereto.  land,  Buffalo,  Duluth,  Sault  Sainte  Marie, 

By  act  of  March  3,  1921  (41  Stat.,  1284),  appro-  Seattle,  Panama,  and  Galveston, 
priation  was  made  for  expenses  of  branch 

[1897,  June  7.  Regulations  for  navigation  of  all  harbors,  rivers,  and  inland 
waters  of  the  United  States,  except  the  Great  Lakes,  etc.,  and  except  the  Eed 
River  of  the  North,  etc.] 

Whereas  the  provisions  of  chapter  eight  hundred  and  two  of  the  laws  of  eighteen 
hundred  and  ninety,  and  the  amendments  thereto,  adopting  regulations 
for  preventing  collisions  at  sea,  apply  to  all  waters  of  the  United  States 
connected  with  the  high  seas  navigable  by  seagoing  vessels,  except  so  far 
as  the  navigation  of  any  harbor,  river,  or  inland  waters  is  regulated  by 
special  rules  duly  made  by  local  authority;  and 


1251 


June  7,  1897.  Pt.  S.  STATUTES  AT  LARGE.  Navigation. 

Whereas  it  is  desirable  that  the  regulations  relating  to  the  navigation  of  all 
harbors,  rivers,  and  inland  waters  of  the  United  States,  except  the  Great 
Lakes  and  their  connecting  and  tributary  waters  as  far  east  as  Montreal 
and  the  Red  River  of  the  North  and  rivers  emptying  into  the  Gulf  of  Mexico 
and  their  tributaries,  shall  be  stated  in  one  Act:  Therefore, 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives  of  the  United  States 
of  America  in  Congress  assembled,  That  the  following  regulations  for  preventing 
collision  shall  be  followed  by  all  vessels  navigating  all  harbors,  rivers,  and  inland 
waters  of  the  United  States,  except  the  Great  Lakes  and  their  connecting  and 
tributary  waters  as  far  east  as  Montreal  and  the  Red  River  of  the  North  and 
rivers  emptying  into  the  Gulf  of  Mexico  and  their  tributaries,  and  are  hereby 
declared  special  rules  duly  made  by  local  authority: — (30  Stat.,  96,  chap.  4.) 


Regulations  for  preventing  collisions  at  sea: 

See  act  of  August  19,  1890  (26  Stat.,  320),  and 
amendments  thereto. 

Navigation  on  the  Red  River  of  the  North  and 
rivers  emptying  into  the  Gulf  of  Mexico 
and  their  tributaries:  See  sections  4233  and 
4412,  Revised  Statutes,  and  notes  thereto. 

Navigation  on  the  Great  Lakes  and  their  con- 
necting and  tributary  waters  as  far  east  as 
Montreal:  See  act  of  February  8,  1895  (28 
Stat.,  645). 


Navigation,  Pearl  Harbor,  Hawaii:  See  act  of 
August  22,  1912  (37  Stat.,  341). 

Rules  governing  motor  boats:  See  act  of  June 
9,  1910  (36  Stat.,  462). 

See,  generally,  notes  to  sections  4233  and  4412, 
Revised  Statutes;  and  Navy  Regulations 
1920  (chap.  55),  quoting  laws,  and  regula- 
tions of  the  Department  of  Commerce,  "for 
preventing  collisions,"  etc. 


Preliminary. 

In  the  following  rules  every  steam-vessel  which  is  under  sail  and  not 
under  steam  is  to  be  considered  a  sailing-vessel,  and  every  vessel  under  steam 
whether  under  sail  or  not,  is  to  be  considered  a  steam  vessel. 

The  word  ''steam- vessel"  shall  include  any  vessel  propelled  by  machinery. 

A  vessel  is  ''under  way,"  within  the  meaning  of  these  rules,  when  she  is 
not  at  anchor,  or  made  fast  to  the  shore,  or  aground. 

Rules  Concerning  Lights,  and  so  forth. 

The  word  "visible"  in  these  rules,  when  applied  to  lights,  shall  mean 
visible  on  a  dark  night  with  a  clear  atmosphere. 

Article  1.  The  rules  concerning  lights  shall  be  complied  with  in  all 
weathers  from  sunset  to  sunrise,  and  during  such  time  no  other  lights  which 
may  be  mistaken  for  the  prescribed  lights  shall  be  exhibited. — (30  Stat.,  96, 
chap.  4.) 

Art.  2.  A  steam- vessel  when  under  way  shall  carry — (a)  On  or  in  front 
of  the  foremast,  or,  if  a  vessel  without  a  foremast,  then  in  the  fore  part  of  the 
vessel,  a  bright  white  light  so  constructed  as  to  show  an  unbroken  light  over 
an  arc  of  the  horizon  of  twenty  points  of  the  compass,  so  fixed  as  to  throw  the 
light  ten  points  on  each  side  of  the  vessel,  namely,  from  right  ahead  to  two  points 
abaft  the  beam  on  either  side,  and  of  such  a  character  as  to  be  visible  at  a 
distance  of  at  least  five  miles. 

(b)  On  the  starboard  side  a  green  light  so  constructed  as  to  show  an 

unbroken  light  over  an  arc  of  the  horizon  of  ten  points  of  the  compass,  so  fixed 

as  to  throw  the  light  from  right  ahead  to  two  points  abaft  the  beam  on  the 

starboard  side,  and  of  such  a  character  as  to  be  visible  at  a  distance  of  at  least 

two  miles. 

1252 


Navigation.  Pt.  3.  STATUTES  AT  LARGE.  June  7,  1897. 

(c)  On  the  port  side  a  red  light  so  constructed  as  to  show  an  unbroken 
light  over  an  arc  of  the  horizon  of  ten  points  of  the  compass,  so  fixed  as  to  throw 
the  light  from  right  ahead  to  two  points  abaft  the  beam  on  the  port  side,  and  of 
such  a  character  as  to  be  visible  at  a  distance  of  at  least  two  miles. 

(d)  The  said  green  and  red  side-lights  shall  be  fitted  with  inboard  screens 
projecting  at  least  three  feet  forward  from  the  light,  so  as  to  prevent  these  lights 
from  being  seen  across  the  bow. 

(e)  A  sea-going  steam-vessel  when  under  way  may  carry  an  additional 
white  light  similar  in  construction  to  the  light  mentioned  in  subdivision  (a). 
These  two  lights  shall  be  so  placed  in  line  \vith  the  keel  that  one  shall  be  at 
least  fifteen  feet  higher  than  the  other,  and  in  such  a  position  with  reference 
to  each  other  that  the  lower  light  shall  be  forward  of  the  upper  one.  The 
vertical  distance  between  these  lights  shall  be  less  than  the  horizontal  distance, 
(f)  All  steam- vessels  (except  sea-going  vessels  and  ferry-boats),  shall  carry  in 
addition  to  green  and  red  lights  required  by  article  two  (b),  (c),  and  screens  as 
required  by  article  two  (d),  a  central  range  of  two  white  lights;  the  after-light 
being  carried  at  an  elevation  at  least  fifteen  feet  above  the  light  at  the  head 
of  the  vessel.  The  head-light  shall  be  so  constructed  as  to  show  an  unbroken 
light  through  twenty  points  of  the  compass,  namely,  from  right  ahead  to  two 
points  abaft  the  beam  on  either  side  of  the  vessel,  and  the  after-light  so  as  to 
show  all  around  the  horizon. — (30  Stat.,  96-97,  chap.  4.) 

Akt.  3.  A  steam-vessel  when  towing  another  vessel  shall,  in  addition 
to  her  side-lights,  carry  two  bright  white  lights  in  a  vertical  fine  one  over 
the  other,  not  less  than  three  feet  apart,  and  when  towing  more  than  one 
vessel  shall  carry  an  additional  bright  white  light  three  feet  above  or  below 
such  fights,  if  the  length  of  the  tow  measuring  from  the  stern  of  the  towing 
vessel  to  the  stern  of  the  last  vessel  towed  exceeds  six  hundred  feet.  Each 
of  these  lights  shall  be  of  the  same  construction  and  character,  and  shall  be 
carried  in  the  same  position  as  the  white  light  mentioned  in  article  two  (a) 
or  the  after  range  light  mentioned  in  article  two  (f). 

Such  steam-vessel  may  carry  a  small  white  light  abaft  the  funnel  or  after- 
mast  for  the  vessel  towed  to  steer  by,  but  such  light  shall  not  be  visible  for- 
ward of  the  beam. — (30  Stat.,  97,  chap.  4.) 

This  act  did  not  contain  any  article  numbered  four. 

Art.  5.  A  sailing-vessel  under  way  or  being  towed  shall  carry  the  same 
fights  as  are  prescribed  by  article  two  for  a  steam-vessel  under  way,  with  the 
exception  of  the  white  lights  mentioned  therein,  which  they  shall  never  carry. — 
(30  Stat.,  97,  chap.  4.) 

Art.  6.  Whenever,  as  in  the  case  of  vessels  of  less  than  ten  gross  tons  under 
way  during  bad  weather,  the  green  and  red  side-lights  can  not  be  fixed,  these 
fights  shall  be  kept  at  hand,  lighted  and  ready  for  use;  and  shall,  on  the  ap- 
proach of  or  to  other  vessels,  be  exhibited  on  their  respective  sides  in  sufficient 
time  to  prevent  collision,  in  such  manner  as  to  make  them  most  visible,  and 
so  that  the  green  light  shall  not  be  seen  on  the  port  side  nor  the  red  light  on 
the  starboard  side,  nor,  if  practicable,  more  than  two  points  abaft  the  beam 
on  their  respective  sides.  To  make  the  use  of  these  portable  lights  more  cer- 
tain and  easy  the  lanterns  containing  them  shall  each  be  painted  outside  with 

1253 


June  7,  1897.  Pt.  S.  STATUTES  AT  LARGE.  Navigation. 

the  color  of  tlic  light  they  respectively  contain,  and  shall  be  provided  with 
proper  screens. — (30  Stat.,  97,  chap.  4.) 

Art.  7.  Rowing  boats,  whether  under  oars  or  sail,  shall  have  ready  at 
hand  a  lantern  showing  a  white  light  which  shall  be  temporarily  exhibited 
in  sudicient  time  to  prevent  collision. — (30  Stat.,  98,  chap.  4.) 

Art.  8.  Pilot-vessels  when  engaged  on  their  station  on  pilotage  duty  shall 
not  show  the  lights  required  for  other  vessels,  but  shall  carry  a  white  light  at 
the  masthead,  visible  all  around  the  horizon,  and  shall  also  exhibit  a  flare-up 
light  or  flare-up  lights  at  short  intervals,  which  shall  never  exceed  fifteen 
minutes. 

On  the  near  approach  of  or  to  other  vessels  they  shall  have  their  side- 
lights lighted,  ready  for  use,  and  shall  flash  or  show  them  at  short  intervals, 
to  indicate  the  direction  in  which  they  are  heading,  but  the  green  light  shall 
not  be  shown  on  the  port  side  nor  the  red  light  on  the  starboard  side. 

A  pilot-vessel  of  such  a  class  as  to  be  obliged  to  go  alongside  of  a  vessel 
to  put  a  pilot  on  board  may  show  the  white  light  instead  of  carrying  it  at  the 
masthead,  and  may,  instead  of  the  colored  lights  above  mentioned,  have  at 
hand,  ready  for  use,  a  lantern  with  a  green  glass  on  the  one  side  and  a  red 
glass  on  the  other,  to  be  used  as  prescribed  above. 

Pilot- vessels,  when  not  engaged  on  their  station  on  pilotage  duty,  shall 
carry  lights  similar  to  those  of  other  vessels  of  their  tonnage. — (30  Stat.,  98, 
chap.  4.) 

By  act  of  February  19,  1900  (31  Stat.,  30-31), 

which    was    expressly    "supplementary" 

to  this  article,  it  was  provided:  "That  a 

steam  pilot  vessel,  when  engaged  on  her 

station  on  pilotage  duty  and  in  waters  of 

the  United  States,  and  not  at  anchor,  shall, 

in  addition  to  the  lights  required  for  all 

pilot  boats,  carry  at  a  distance  of  eight  feet 

below  her  white  masthead  light  a  red  light, 

Aisible  all  around  the  horizon  and  of  such 

a  character  as  to  be  visible  on  a  dark  night 

with  a  clear  atmosphere  at  a  distance  of 

at  least  two  miles,  and  also  the  colored  side 

lights  required  to  be  carried  by  vessels 

when  under  way. 
"When  engaged  on  her  station  on  pilotage  duty 

and  in  waters  of  the  United  States,  and  at 

anchor,  she  shall  carry  in  addition  to  the 

Art.  9.  (a)  Fishing-vessels  of  less  than  ten  gross  tons,  when  under  way 
and  when  not  having  their  nets,  trawls,  dredges,  or  lines  in  the  water,  shall 
not  be  obliged  to  carry  the  colored  side-lights;  but  every  such  vessel  shall,  in 
lieu  thereof,  have  ready  at  hand  a  lantern  with  a  green  glass  on  one  side  and  a 
red  glass  on  the  other  side,  and  on  approaching  to  or  being  approached  by 
another  vessel  such  lantern  shall  be  exhibited  in  sufficient  time  to  prevent 
collision,  so  that  the  green  light  shall  not  be  seen  on  the  port  side  nor  the  red 
light  on  the  starboard  side. 

(b)  All  fishing-vessels  and  fishing-boats  of  ten  gross  tons  or  upward, 
when  under  way  and  when  not  having  their  nets,  trawls,  dredges,  or  lines  in 
the  water,  shall  carry  and  show  the  same  lights  as  other  vessels  under  way. 

(c)  All  vessels,  when  trawling,  dredging,  or  fishing  with  any  kind  of  drag- 
nets or  lines,  shall  exhibit,  from  some  part  of  the  vessel  where  they  can  be  best 

1254 


lights  required  for  all  pilot  boats  the  red 
light  above  mentioned,  but  not  the  colored 
side  lights. 

"When  not  engaged  on  her  station  on  pilotage 
duty,  she  shall  carry  the  same  lights  as 
other  steam  vessels. 

"Sec.  2.  That  this  Act  shall  be  construed  as 
supplementary  to  article  eight  of  the  Act 
approved  June  seventh,  eighteen  hundred 
and  ninety-seven,  entitled  'An  Act  to  adopt 
regulations  for  preventing  collisions  upon 
certain  harbors,  rivers,  and  inland  waters 
of  the  United  States,'  and  to  article  eight 
of  an  Act  approved  August  nineteenth, 
eighteen  hundred  and  ninety,  entitled 
'An  Act  to  adopt  regulations  for  preventing 
collisions  at  sea.' " 


Navigation.  Pt.  3.  STATUTES  AT  LARGE.  June  7,  1897. 

seen,  two  lights.  One  of  these  lights  shall  be  red  and  the  other  shall  be  white. 
The  red  light  shall  be  above  the  white  light,  and  shall  be  at  a  vertical  distance 
from  it  of  not  less  than  six  feet  and  not  more  than  twelve  feet;  and  the  horizontal 
distance  between  them,  if  any,  shall  not  be  more  than  ten  feet.  These  two 
lights  shall  be  of  such  a  character  and  contained  in  lanterns  of  such  construction 
as  to  be  visible  all  round  the  horizon,  the  white  light  a  distance  of  not  less 
than  three  miles  and  the  red  light  of  not  less  than  two  miles. 

(d)  Rafts,  or  other  water  craft  not  herein  provided  for,  navigating  by 
hand  power,  horse  power,  or  by  the  current  of  the  river,  shall  carry  one  or 
more  good  w^iite  lights,  which  shall  be  placed  in  such  manner  as  shall  be  pre- 
scribed by  the  Board  of  Supervising  Inspectors  of  Steam  Vessels. — (30  Stat.,  98, 
chap.  4.) 

Art.  10.  a  vessel  which  is  being  overtaken  by  another,  except  a  steam- 
vessel  with  an  after  range-light  showing  all  around  the  horizon,  shall  show  from 
her  stern  to  such  last-mentioned  vessel  a  white  light  or  a  flare-up  light. — (30 
Stat.,  98,  chap.  4.) 

Art.  11.  a  vessel  under  one  hundred  and  fifty  feet  in  length  when  at 
anchor  shall  carry  forward,  where  it  can  best  be  seen,  but  at  a  height  not  exceed- 
ing twenty  feet  above  the  hull,  a  white  light,  in  a  lantern  so  constructed  as  to 
show  a  clear,  uniform,  and  unbroken  light  visible  all  around  the  horizon  at  a 
distance  of  at  least  one  mile. 

A  vessel  of  one  hundred  and  fifty  feet  or  upwards  in  length  when  at  anchor 
shall  carry  in  the  forward  part  of  the  vessel,  at  a  height  of  not  less  than  twenty 
and  not  exceeding  forty  feet  above  the  hull,  one  such  light,  and  at  or  near  the 
stern  of  the  vessel,  and  at  such  a  height  that  it  shall  be  not  less  than  fifteen  feet 
lower  than  the  forward  light,  another  such  light. 

The  length  of  a  vessel  shall  be  deemed  to  be  the  length  appearing  in  her 
certificate  of  registry. — (30  Stat.,  98-99,  chap.  4.) 

Art.  12.  Every  vessel  may,  if  necessary,  in  order  to  attract  attention, 
in  addition  to  the  lights  which  she  is  by  these  rules  required  to  carry,  show  a 
flare-up  light  or  use  any  detonating  signal  that  can  not  be  mistaken  for  a  dis- 
tress signal. — (30  Stat.,  99,  chap.  4.) 

Art.  13.  Nothing  in  these  rules  shall  interfere  with  the  operation  of  any 
special  rules  made  by  the  Government  of  any  nation  with  respect  to  additional 
station  and  signal  lights  for  two  or  more  ships  of  war  or  for  vessels  sailing  under 
convoy,  or  with  the  exhibition  of  recognition  signals  adopted  by  shipowners, 
which  have  been  authorized  by  their  respective  Governments,  and  duly  regis- 
tered and  published.— (30  Stat.,  99,  chap.  4.) 

Art.  14.  A  steam-vessel  proceeding  under  sail  only,  but  having  her 
funnel  up,  may  carry  in  daytime,  forward,  where  it  can  best  be  seen,  one  black 
ball  or  shape  two  feet  in  diameter. — (30  Stat.,  99,  chap.  4.) 

Sound  Signals  for  Fog,  and  so  forth. 

Art.  15.  All  signals  prescribed  by  this  article  for  vessels  under  way  shall 
be  given: 

1.  By  ''steam- vessels"  on  the  whistle  or  siren. 

2.  By  ''sailing-vessels"  and  "vessels  towed"  on  the  fog  horn. 

1255 


June  7,  1897.  Pt.  S.  STATUTES  AT  LARGE.  Navigation. 

The  words  "  prolonged  blast"  used  in  this  article  shall  mean  a  blast  of  from 
four  to  six  seconds  duration. 

A  steam-vessel  shall  be  provided  with  an  efficient  whistle  or  siren,  sounded 
by  steam  or  by  some  substitute  for  steam,  so  placed  that  the  sound  may  not  be 
intercepted  by  any  obstruction,  and  with  an  efficient  fog  horn;  also  with  an 
efficient  bell.  A  sailing-vessel  of  twenty  tons  gross  tonnage  or  upward  shall  be 
provided  with  a  similar  fog  horn  and  bell. 

In  fog,  mist,  falling  snow,  or  heavy  rainstorms,  whether  by  day  or  night, 
the  signals  described  in  this  article  shall  be  used  as  follows,  namely: 

(a)  A  steam-vessel  under  way  shall  sound,  at  intervals  of  not  more  than  one 
minute,  a  prolonged  blast. 

(c)  A  sailing-vessel  imder  way  shall  sound,  at  intervals  of  not  more  than  one 
minute,  when  on  the  starboard  tack,  one  blast;  when  on  the  port  tack,  two  blasts 
in  succession,  and  when  with  the  wind  abaft  the  beam,  three  blasts  in  succession. 

(d)  A  vessel  when  at  anchor  shall,  at  intervals,  of  not  more  than  one 
minute,  ring  the  bell  rapidly  for  about  five  seconds. 

(e)  A  steam- vessel  when  towing,  shall,  instead  of  the  signals  prescribed  in 
subdivision  (a)  of  this  article,  at  intervals  of  not  more  than  one  minute,  sound 
three  blasts  in  succession,  namely,  one  prolonged  blast  followed  by  two  short 
blasts.     A  vessel  towed  may  give  this  signal  and  she  shall  not  give  any  other. 

(f)  All  rafts  or  other  water  craft,  not  herein  provided  for,  navigating  by 
hand  power,  horse  power,  or  by  the  current  of  the  river,  shall  sound  a  blast  of 
the  fog-horn,  or  equivalent  signal,  at  intervals  of  not  more  than  one  minute. — 
(30  Stat.,  99,  chap.  4.) 

Speed  of  Ships  to  be  Moderate  in  Fog,  and  so  forth. 

Art.  16.  Every  vessel  shall,  in  a  fog,  mist,  falling  snow,  or  heavy  rain- 
storms, go  at  a  moderate  speed,  having  careful  regard  to  the  existing  circum- 
stances and  conditions. 

A  steam- vessel  hearing,  apparently  forward  of  her  beam,  the  fog-signal  of 
a  vessel  the  position  of  which  is  not  ascertained  shall,  so  far  as  the  circumstances 
of  the  case  admit,  stop  her  engines,  and  then  navigate  with  caution  until  danger 
of  collision  is  over. — (30  Stat.,  99,  chap.  4.) 

Steering  and  Sailing  Rules. 

preliminary risk  of  collision. 

Risk  of  collision  can,  when  circumstances  permit,  be  ascertained  by  carefully 
watching  the  compass  bearing  of  an  approaching  vessel.  If  the  bearing  does 
not  appreciably  change,  such  risk  should  be  deemed  to  exist. 

Art.  17.  When  two  sailing-vessels  are  approaching  one  another,  so  as  to 
involve  risk  of  collision,  one  of  them  shall  keep  out  of  the  way  of  the  other  as 
follows,  namely: 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the  way  of  a  vessel 
which  is  close-hauled. 

(b)  A  vessel  which  is  closed-hauled  on  the  port  tack  shall  keep  out  of  the 
way  of  a  vessel  which  is  closed-hauled  on  the  starboard  tack. 

1256 


Navigation.  Pt.  S.  STATUTES  AT  LARGE.  June  7,  1897. 

(c)  When  both  are  running  free,  with  the  wind  on  different  sides,  the 
vessel  which  has  the  wind  on  the  port  side  shall  keep  out  of  the  way  of  the 
other. 

(d)  When  both  are  running  free,  with  the  wind  on  the  same  side,  the 
vessel  which  is  to  the  windward  shall  keep  out  of  the  way  of  the  vessel  which 
is  to  the  leeward. 

(e)  A  vessel  which  has  the  wind  aft  shall  keep  out  of  the  way  of  the  other 
vessel. — (30  Stat.,  100,  chap.  4.) 

Art.  18.  Rule  I.  When  steam- vessels  are  approaching  each  other  head 
and  head,  that  is,  end  on,  or  nearly  so,  it  shall  be  the  duty  of  each  to  pass  on 
the  port  side  of  the  other;  and  either  vessel  shall  give,  as  a  signal  of  her  intention, 
one  short  and  distinct  blast  of  her  whistle,  which  the  other  vessel  shall  answer 
promptly  by  a  similar  blast  of  her  whistle,  and  thereupon  such  vessels  shall  pass 
on  the  port  side  of  each  other.  But  if  the  courses  of  such  vessels  are  so  far  on 
the  starboard  of  each  other  as  not  to  be  considered  as  meeting  head  and  head, 
either  vessel  shall  immediately  give  two  short  and  distinct  blasts  of  her  whistle, 
which  the  other  vessel  shall  answer  promptly  by  two  similar  blasts  of  her  whistle, 
and  they  shall  pass  on  the  starboard  side  of  each  other. 

The  foregoing  only  applies  to  cases  where  vessels  are  meeting  end  on  or 
nearly  end  on,  in  such  a  manner  as  to  involve  risk  of  collision;  in  other  words, 
to  cases  in  which,  by  day,  each  vessel  sees  the  masts  of  the  other  in  a  line,  or 
nearly  in  a  line,  with  her  own,  and  by  night  to  cases  in  which  each  vessel  is  in 
such  a  position  as  to  see  both  the  sidelights  of  the  other. 

It  does  not  apply  by  day  to  cases  in  which  a  vessel  sees  another  ahead 
crossing  her  own  course,  or  by  night  to  cases  where  the  red  light  of  one  vessel 
is  opposed  to  the  red  light  of  the  other,  or  where  the  green  light  of  one  vessel 
is  opposed  to  the  green  light  of  the  other,  or  where  a  red  light  without  a  green 
light  or  a  green  light  without  a  red  light,  is  seen  ahead,  or  where  both  green  and 
red  lights  are  seen  anywhere  but  ahead. — (30  Stat.,  100,  chap.  4.) 

This  article  did  not  contain  any  Rule  II,  IV,  VI,  or  VII. 

Rule  III.  If,  when  steam-vessels  are  approaching  each  other,  either 
vessel  fails  to  understand  the  course  or  intention  of  the  other,  from  any  cause, 
the  vessel  so  in  doubt  shall  immediately  signify  the  same  by  giving  several 
short  and  rapid  blasts,  not  less  than  four,  of  the  steam-whistle. — (30  Stat., 
100,  chap.  4.) 

Rule  V.  Whenever  a  steam-vessel  is  nearing  a  short  bend  or  curve  in  the 
channel,  where,  from  the  height  of  the  banks  or  other  cause,  a  steam-vessel 
approaching  from  the  opposite  direction  can  not  be  seen  for  a  distance  of  half 
a  mile,  such  steam-vessel,  when  she  shall  have  arrived  within  half  a  mile  of 
such  curve  or  bend,  shall  give  a  signal  by  one  long  blast  of  the  steam  whistle, 
which  signal  shall  be  answered  by  a  similar  blast,  given  by  any  approaching 
steam-vessel  that  may  be  within  hearing.  Should  such  signal  be  so  answered 
by  a  steam-vessel  upon  the  farther  side  of  such  bend,  then  the  usual  signals  for 
meeting  and  passing  shall  immediately  be  given  and  answered;  but,  if  the  first 
alarm  signal  of  such  vessel  be  not  answered,  she  is  to  consider  the  channel  clear 
and  govern  herself  accordingly. 

1257 


June  7.  1897.  Pt.  S.    STATUTES  AT  LARGE.  Navigation. 

When  steam-vcssols  are  moved  from  their  docks  or  berths,  and  other 
boats  are  liable  to  pass  from  any  direction  toward  them,  they  shall  give  the  same 
signal  as  in  the  case  of  vessels  meeting  at  a  bend,  but  immediately  after  clearino- 
the  berths  so  as  to  be  fully  in  sight  they  shall  be  governed  by  the  steering  and 
sailing  rules.— (30  Stat.,  100-101,  chap.  4.) 

Kri.E  MIL  ^\1ien  steam-vessels  are  running  in  the  same  direction,  and 
the  vessel  which  is  astern  shall  desire  to  pass  on  the  right  or  starboard  hand  of 
the  vessel  ahead,  she  shall  give  one  short  blast  of  the  steam-whistle,  as  a  signal 
of  such  desire,  and  if  the  vessel  ahead  answers  with  one  blast,  she  shall  put  her 
helm  to  port;  or  if  she  shall  desire  to  pass  on  the  left  or  port  side  of  the  vessel 
ahead,  she  shall  give  two  short  blasts  of  the  steam-whistle  as  a  signal  of  such 
desire,  and  if  the  vessel  ahead  answers  with  two  blasts,  shall  put  her  helm  to  star- 
board; or  if  the  vessel  ahead  does  not  think  it  safe  for  the  vessel  astern  to  at- 
tempt to  pass  at  that  point,  she  shall  immediately  signify  the  same  by  giving 
several  short  and  rapid  blasts  of  the  steam-whistle,  not  less  than  four,  and 
under  no  circumstances  shall  the  vessel  astern  attempt  to  pass  the  vessel  ahead 
until  such  time  as  they  have  reached  a  point  where  it  can  be  safely  done,  when 
said  vessel  ahead  shall  signify  her  willingness  by  blowing  the  proper  signals. 
The  vessel  ahead  shall  in  no  case  attempt  to  cross  the  bow  or  crowd  upon  the 
course  of  the  passing  vessel. — (30  Stat.,  101,  chap.  4.) 

Rule  IX.  The  whistle  signals  provided  in  the  rules  under  this  article,  for 
steam-vessels  meeting,  passing,  or  overtaking,  are  never  to  be  used  except 
when  steamers  are  in  sight  of  each  other,  and  the  course  and  position  of  each 
can  be  determined  in  the  daytime  by  a  sight  of  the  vessel  itself,  or  by  night  by 
seeing  its  signal  lights.  In  fog,  mist,  falling  snow  or  heavy  rainstorms,  when 
vessels  can  not  so  see  each  other,  fog-signals  only  must  be  given. — (30  Stat., 
101,  chap.  4.) 

Art.  19.  When  two  steam-vessels  are  crossing,  so  as  to  involve  risk  of 
collision,  the  vessel  which  has  the  other  on  her  own  starboard  side  shall  keep 
out  of  the  way  of  the  other. — (30  Stat.,  101,  chap.  4.) 

Art.  20.  When  a  steam-vessel  and  a  sailing-vessel  are  proceeding  in  such 
directions  as  to  involve  risk  of  collision,  the  steam-vessel  shall  keep  out  of  the 
way  of  the  sailing-vessel. — (30  Stat.,  101,  chap.  4.) 

Art.  21.  Where,  by  any  of  these  rules,  one  of  the  two  vessels  is  to  keep  out 
of  the  way,  the  other  shall  keep  her  course  and  speed. — (30  Stat.,  101,  chap.  4.) 

Art.  22.  Every  vessel  which  is  directed  by  these  rules  to  keep  out  of  the 
way  of  another  vessel  shall,  if  the  circumstances  of  the  case  admit,  avoid  cross- 
ing ahead  of  the  other. — (30  Stat.,  101,  chap.  4.) 

Art.  23.  Every  steam- vessel  which  is  directed  by  these  rules  to  keep  out 
of  the  way  of  another  vessel  shall,  on  approaching  her,  if  necessary,  slacken  her 
speed  or  stop  or  reverse. — (30  Stat.,  101,  chap.  4.) 

Art.  24.  Notwithstanding  anything  contained  in  these  rules  every  vessel, 
overtaking  any  other,  shall  keep  out  of  the  way  of  the  overtaken  vessel. 

Every  vessel  coming  up  with  another  vessel  from  any  direction  more  than 
two  points  abaft  her  beam,  that  is,  in  such  a  position,  with  reference  to  the  vessel 
which  she  is  overtaking  that  at  night  she  would  be  unable  to  see  either  of  that 
vessel's  side-lights,  shall  be  deemed  to  be  an  overtaking  vessel;  and  no  subse- 
sequent  alteration  of  the  bearing  between  the  two  vessels  shall  make  the  over- 

1258 


Navigation.  Pt.  3.  STATUTES  AT  LARGE.  June  7,  1897. 

taking  vessel  a  crossing  vessel  within  the  meaning  of  these  rules,  or  relieve  her 
of  the  duty  of  keeping  clear  of  the  overtaken  vessel  until  she  is  finally  past  and 
clear. 

As  by  day  the  overtaking  vessel  can  not  always  know  with  certainty 
whether  she  is  forward  of  or  abaft  this  direction  from  the  other  vessel  she  should, 
if  in  doubt,  assume  that  she  is  an  overtaking  vessel  and  keep  out  of  the  way. — 
(30  Stat.,  101,  chap.  4.) 

Art.  25.  In  narrow  channels  every  steam-vessel  shall,  when  it  is  safe  and 
practicable,  keep  to  that  side  of  the  fair-way  or  mid-channel  which  lies  on  the 
starboard  side  of  such  vessel. — (30  Stat.,  101,  chap.  4.) 

Art.  26. — Sailing-vessels  under  way  shall  keep  out  of  the  way  of  sailing- 
vessels  or  boats  fishing  with  nets,  or  lines,  or  trawls,  This  rule  shall  not  give 
to  any  vessel  or  boat  engaged  in  fishing  the  right  of  obstructing  a  fair-way 
used  by  vessels  other  than  fisliing-vessels  or  boats. —  (30  Stat.,  102,  chap.  4.) 

Art.  27.  In  obeying  and  construing  these  rules  due  regard  shall  be  had 
to  all  dangers  of  navigation  and  collision,  and  to  any  special  circumstances 
which  may  render  a  departure  from  the  above  rules  necessary  in  order  to 
avoid  immediate  danger. —  (30  Stat.,  102,  chap.  4.) 

Sound  Signals  for  Vessels  in  Sight  of  one  Another. 

Art.  28.  When  vessels  are  in  sight  of  one  another  a  steam-vessel  under 
way  whose  engines  are  going  at  full  speed  astern  shall  indicate  that  fact  by 
three  short  blasts  on  the  whistle. — (30  Stat.,  102,  chap.  4.) 

No  Vessel  Under  any  Circumstances  to  Neglect  Proper  Precautions. 

Art.  29.  Nothing  in  these  rules  shall  exonerate  any  vessel,  or  the  o^^^le^ 
or  master  or  crew  thereof,  from  the  consequences  of  any  neglect  to  carry  lights 
or  signals,  or  of  any  neglect  to  keep  a  proper  lookout,  or  of  the  neglect  of  any 
precaution  wliich  may  be  required  by  the  ordinary  practice  of  seamen,  or  by 
the  special  chcumstances  of  the  case. —  (30  Stat.,  102,  chap.  4.) 

Art.  30.  The  exliibition  of  any  light  on  board  of  a  vessel  of  war  of  the 
United  States  or  a  revenue  cutter  may  be  suspended  whenever,  in  the  opinion 
of  the  Secretary  of  the  Navy,  the  commander  in  chief  of  a  squadron,  or  the 
commander  of  a  vessel  acting  singly,  the  special  character  of  the  service  may 
require  it.— (30  Stat.,  102,  chap.  4.) 

Distress  Signals. 

Art.  31.  When  a  vessel  is  in  distress  and  requires  assistance  from  other 
vessels  or  from  the  shore  the  following  shall  be  the  signals  to  be  used  or  displayed 
by  her,  either  together  or  separately,  namely: 

IN    THE    daytime. 

A  continuous  sounding  wdth  any  fog-signal  apparatus,  or  firing  a  gun. 

AT    NIGHT. 

First.  Flames  on  the  vessel  as  from  a  burning  tar  barrel,  oil  barrel,  and  so 
forth. 

54641°— 22 80  1259 


See  note  above,  under  section  1  of  this  act 
(30  Stat.,  9G). 


June  7,  1897.  Pt.  S.  STATUTES  AT  LARGE.  Navigation. 

Second.  A  contiiiiioiis  sounding  with  any  fog-signal  apparatus,  or  firing 
a  gun.— (30  Stat.,  102,  chap.  4.) 

[1897,  June  7,  sec.  2.  Rules  to  be  established  as  to  steam  vessels  passing- 
each  other,  lights  and  day  signals,  etc.]  That  the  supervising  inspectors  of 
steam  vessels  and  the  Supervising  Inspector  General  shall  establish  such  rules 
to  be  observed  by  steam  vessels  in  passing  each  other  and  as  to  the  lights  to 
be  carried  by  ferryboats  and  by  barges  and  canal  boats  when  in  tow  of  steam 
vessels,  and  as  to  the  lights  and  day  signals  to  be  carried  by  vessels,  dredges  of 
all  types,  and  vessels  working  on  wrecks  by  other  obstruction  to  navigation 
or  moored  for  submarine  operations,  or  made  fast  to  a  sunken  object  which 
may  drift  with  the  tide  or  be  towed,  not  inconsistent  with  the  provisions  of 
this  Act,  as  they  from  time  to  time  may  deem  necessary  for  safety,  which  rules 
when  approved  by  the  Secretary  of  Commerce  are  hereby  declared  special 
rules  duly  made  by  local  authority,  as  provided  for  in  article  thirty  of  chapter 
eight  hundred  and  two  of  the  laws  of  eighteen  hundred  and  ninety.  Two 
printed  copies  of  such  rules  shall  be  furnished  to  such  ferryboats,  barges, 
dredges,  canal  boats,  vessels  working  on  wrecks  and  steam  vessels,  which  rules 
shall  be  kept  posted  up  in  conspicuous  places  in  such  vessels,  barges,  dredges, 
and  boats.— (30  Stat.,  102,  chap.  4;  38  Stat.,  381,  chap.  98.) 

This  section  was  expressly  amended  and  reen- 
acted  to  read  as  above,  by  act  of  May  25, 
1914  (38  Stat.,  381). 

[1897,  June  7,  sec.  3.  Penalty  for  pilots,  etc.]  That  every  pilot,  engineer, 
miate,  or  master  of  any  steam-vessel,  and  every  master  or  mate  of  any  barge  or 
canal-boat,  who  neglects  or  refuses  to  observe  the  provisions  of  this  Act,  or  the 
regulations  estabhshed  in  pursuance  of  the  preceding  section,  shall  be  liable 
to  a  penalty  of  fifty  dollars,  and  for  all  damages  sustained  by  any  passenger 
in  his  person  or  baggage  by  such  neglect  or  refusal:  Provided,  That  nothing 
herein  shall  relieve  any  vessel,  owner  or  corporation  from  any  liability  incurred 
by  reason  of  such  neglect  or  refusal. —  (30  Stat.,  102-103,  chap.  4.) 

[1897,  June  7,  sec.  4.  Penalty  for  vessels.]  That  every  vessel  that  shall  be 
navigated  without  complying  with  the  provisions  of  this  Act  shall  be  liable  to 
a  penalty  of  two  hmidred  dollars,  one-half  to  go  to  the  informer,  for  which  sum 
the  vessel  so  navigated  shall  be  liable  and  may  be  seized  and  proceeded  against 
by  action  in  any  district  court  of  the  United  States  having  jurisdiction  of  the 
offense.— (30  Stat.,  103,  chap.  4.) 

[1897,  June  7,  sec.  5.  Repeal  of  prior  laws  and  regulations;  exceptions.] 
That  sections  forty-two  hundred  and  thirty-three  and  forty-four  hundred  and 
twelve  (with  the  regulations  made  in  pursuance  thereof,  except  the  rules  and 
regulations  for  the  government  of  pilots  of  steamers  navigating  the  Red  River 
of  the  North  and  rivers  emptying  into  the  Gulf  of  Mexico  and  their  tributaries, 
and  except  the  rules  for  the  Great  Lakes  and  their  connecting  and  tributary 
waters  as  far  east  as  Montreal),  and  forty-four  hundred  and  tliirteen  of  the 
Revised  Statutes  of  the  United  States,  and  chapter  two  hundred  and  two  of 
the  laws  of  eighteen  hundred  and  ninety-three,  and  sections  one  and  three  of 
chapter  one  hundred  and  two  of  the  laws  of  eighteen  hundred  and  ninety-five, 
and  sections  five,  twelve,  and  thirteen  of  the  Act  approved  March  third,  eighteen 
hundred  and  ninety-seven,  entitled  "An  Act  to  amend  the  law^s  relating  to  navi- 

1260 


Pt.  3.  STATUTES  AT  LARGE.  May  4,  1898. 

gation,"  and  all  amendments  thereto,  are  hereby  repealed  so  far  as  the  harbors, 
rivers,  and  inland  waters  aforesaid  (except  the  Great  Lakes  and  their  connect- 
ing and  tributary  waters  as  far  east  as  Montreal  and  the  Red  River  of  the  North 
and  rivers  emptying  into  the  Gulf  of  Mexico,  and  tlieir  tributaries)  are  con- 
cerned. —  (30  Stat.,  103,  chap.  4.) 

[1898,  Mar.  15,  sec.  3.  law  books,  etc.,  purchase  from  contingent  funds.] 
That  hereafter  law  books,  books  of  reference,  and  periodicals  for  use  of  any 
Executive  Department,  or  other  Government  establishment  not  under  an 
Executive  Department,  at  the  seat  of  Government,  shall  not  be  purchased  or  paid 
for  from  any  appropriation  made  for  contingent  expenses  or  for  any  specific  or 
general  purpose  unless  such  purchase  is  authorized  and  payment  therefor 
specifically  provided  in  the  law  granting  the  appropriation. —  (30  Stat.,  316, 
chap.  68.) 


See  act  of  January  12,  1895,  section  95  (28 
Stat.,  623),  as  to  exchange  of  books  and 
documents. 


See  section  19.3,  Re\"ised  Statutes,  and  notes 
thereto,  as  to  use  of  contingent  funds. 


[1898,  May  4.  Assistant  to  chief,  Bureau  of  Ordnance.]  That  a  line  officer 
of  the  Navy  may  be  detailed  temporarily  as  assistant  to  the  Chief  of  the  Bureau 
of  Ordnance  in  the  Navy  Department,  and  that  such  officer  during  such  detail 
shall  receive  the  liighest  pay  of  his  grade,  and  in  the  case  of  the  death,  resigna- 
tion, absence,  or  sickness  of  the  cliief  of  the  bureau  shall,  unless  otherwise 
directed  by  the  President,  as  provided  by  sections  one  and  seventy-nine  of  the 
Revised  Statutes,  perform  the  duties  of  such  chief  until  his  successor  is  appointed 
or  such  absence  or  sickness  shall  cease,  provided  that,  in  case  of  the  death, 
sickness,  or  absence  on  duty  of  the  chief  of  the  bureau  and  the  assistant  thereto, 
the  chief  clerk  shall  act  as  cliief  of  the  bureau. —  (30  Stat.,  373,  chap.  234.) 

See  sections  177-182.  and  421,  Re\'ised  Statutes,  and  notes  thereto. 

[1898,  May  4.  Pensions  of  inmates.  Naval  Home  and  naval  hospitals.] 
Whenever  any  officer,  seaman,  or  marine  entitled  to  a  pension  is  admitted  to  the 
Naval  Home  at  Philadelphia,  or  to  a  naval  hospital,  his  pension,  while  he 
remains  there,  shall  be  deducted  from  his  accounts  and  paid  to  the  Secretary 
of  the  Navy  for  the  benefit  of  the  fund  from  wliich  such  home  or  hospital, 
respectively,  is  maintained;  and  section  forty-eight  hundred  and  thirteen  of 
the  Revised  Statutes  of  the  United  States  is  hereby  amended  accordingly. — 
(30  Stat.,  377,  chap.  234.) 

See  notes  to  sections  4756,   4757,   and  4813,       This  enactment  was  repeated  in  act  of  March 


Revised  Statutes. 


3,  1899  (30  Stat.,  1027). 


[1898,  May  4.  Acting  assistant  surgeons.]  The  President  is  hereby  author- 
ized to  appoint  for  temporary  service  twenty-five  acting  assistant  surgeons, 
who  shall  have  the  relative  rank  and  compensation  of  assistant  surgeons. —  (30 
Stat.,  380,  chap.  234.) 

See  section  1411.  Re^ised  Statutes,  and  note  thereto. 

[1898,  May  4.  Names  of  battle  ships  and  monitors.]  That  hereafter  all 
first-class  battle  ships  and  monitors  owned  by  the  United  States  shall  be  named 
for  the  States,  and  shall  not  be  named  for  any  city,  place,  or  person  until  the 
names  of  the  States,  shall  have  been  exhausted :  Provided,  That  nothing  herein 


1261 


June  17,  1898.  Pt.  S.  STATUTES  AT  LARGE. 

contained  shall  be  so  construed  as  to  interfere  with  the  names  of  States  already 

assigned  to  any  such  battle  ship  or  monitor. — (30  Stat.,  390,  chap.  234.) 

See  note  to  section  1531,  Re\i8ed  Statutes.  as  to  monitors,  by  act  of  May  13,  1908  (35 

Tliis    provision    was    expressly    repealed,  Sfcat.,  159). 

[1898,  May  4.  Medals  of  honor,  enlisted  men;  rosettes  and  ribbons.]  That 
the  Secretary  of  the  Navy  be,  and  he  is  hereby,  authorized  to  issue  to  any 
person  to  whom  a  medal  of  honor  has  been  awarded,  or  may  hereafter  be 
awartlod,  under  the  provisions  of  the'  Acts  approved  December  twenty-first, 
eighteen  hundred  and  sixty-one,  and  July  sixteenth,  eighteen  hundred  and 
sixty-two,  a  rosette  or  knot  to  be  worn  in  lieu  of  the  medal,  and  a  ribbon  to  be 
worn  with  the  medal;  said  rosette  or  knot  and  ribbon  to  be  each  of  a  pattern 
to  be  prescribed  and  established  by  the  President  of  the  United  States,  and  any 
appropriation  that  may  hereafter  be  available  for  the  contingent  expenses  of  the 
Navy  Department  is  hereby  made  available  for  the  purposes  of  this  Act: 
Provided,  That  whenever  a  ribbon  issued  under  the  provisions  of  this  Act  shall 
have  been  lost,  destroyed,  or  rendered  unfit  for  use,  without  fault  or  neglect  on 
the  part  of  the  person  to  whom  it  was  issued,  the  Secretary  of  the  Navy  shall 
cause  a  new  ribbon  to  be  issued  to  such  person  without  charge  therefor. — 
(30  Stat.,  741,  Res.  No.  30.) 


The  act  of  December  21,  1861,  section  7  (12 
Stat.,  330),  referred  to  in  this  resolution, 
was  temporary  legislation;  the  act  of  Jiily 
16,  1862  (12  Stat.,  584),  also  referred  to 
herein,  was  superseded  by  an  identical  pro- 
vision contained  in  the  act  of  May  17,  1864, 


section  3  (13  Stat.,  79-80),  which  latter  en- 
actment was  embodied  in  section  1407, 
Revised  Statutes,  see  that  section  and  note 
thereto;  see  also  act  of  F'ebruary  4,  1919  (40 
Stat.,  1056-1057),  for  later  provisions  on  the 
subject. 


[1898,  June  17.  Hospital  Corps  established;  organization  of.]  That  a  hos- 
pital corps  of  the  United  States  Navy  is  hereby  established,  and  shall  consist  of 
pharmacists  hospital  stewards,  hospital  apprentices  (first  class),  and  hospital 
apprentices;  and  for  this  purpose  the  Secretary  of  the  Navy  is  empowered  to 
appoint  twenty-five  pharmacists  with  the  rank,  pay,  and  privileges  of  warrant 
ofiicers,  removable  in  the  discretion  of  the  Secretary,  and  to  enlist,  or  cause  to 
be  enlisted,  as  many  hospital  stewards,  hospital  apprentices  (first  class),  and 
hospital  apprentices  as  in  liis  judgment  may  be  necessary,  and  to  limit  or  fix 
the  number,  and  to  make  such  regulations  as  may  be  required  for  their  enlist- 
ment and  government.  Enlisted  men  in  the  Navy  or  the  Marine  Corps  shall  be 
eligible  for  transfer  to  the  hospital  corps,  and  vacancies  occurring  in  the  grade 
of  pharmacist  shall  be  filled  by  the  Secretary  of  the  Navy  by  selection  from  those 
holding  the  rate  of  hospital  steward. —  (30  Stat.,  474-475,  chap.  463.) 

Sec.  2.  That  all  necessary  hospital  and  ambulance  service  at  naval  hos- 
pitals, naval  stations,  navy-yards,  and  marine  barracks,  and  on  vessels  of  the 
Navy,  Coast  Survey,  and  Fish  Commission,  shall  be  performed  by  the  members 
of  said  corps,  and  the  corps  shall  be  permanently  attached  to  the  Medical 
Department  of  the  Navy,  and  shall  be  included  in  the  effective  strength  of  the 
Navy  and  be  counted  as  a  part  of  the  enlisted  force  provided  by  law,  and  shall 
be  subject  to  the  laws  and  regulations  for  the  govermnent  of  the  Navy. — (30 
Stat.,  475,  chap.  463.) 

Sec.  3.  That  the  pay  of  hospital  stewards  shall  be  sixty  dollars  a  month, 
the  pay  of  hospital  apprentices  (first  class)  thirty  dollars  a  month,  and  the  pay 
of  hospital  apprentices  twenty  dollars  a  month,  with  the  increase  on  account  of 

1262 


Personnel  Act. 


Pt.  S.  STATUTES  AT  LARGE. 


Mar.  3,  1899. 


length  of  service  as  is  now  or  may  hereafter  be  allowed  by  law  to  other  enlisted 
men  in  the  Navy. —  (30  Stat.,  475,  chap.  463.) 

Sec  4.  That  all  benefits  derived  from  existing  laws,  or  that  may  hereafter 
be  allowed  by  law,  to  other  warrant  officers  or  enlisted  men  in  the  Navy  shall 
be  allowed  in  the  same  manner  to  the  warrant  officers  or  enlisted  men  in  the 
hospital  corps  of  the  Navy. —  (30  Stat.,  475,  chap.  463.) 

Sec.  5.  That  all  acts  and  parts  of  acts,  so  far  as  they  conflict  with  the  pro- 
visions of  this  Act,  are  hereby  repealed. —  (30  Stat.,  475,  chap.  463.) 


Section  3  of  this  act  was  expresslv  repealed  bv 
act  of  August  29,  191G  (39  Stat.,  573),  which 
contained  othei*  provisions  on  the  subject  of 
pay  of  enlisted  men  of  the  Hospital  Corps. 
(See  note  to  section  1569,  Revised  Statutes, 
as  to  pay  of  enlisted  men.) 

The  authorized  strength  of  the  Hospital  Corps 
was  fixed  by  act  of  August  29,  1916  (39 
Stat.,  572),  and  its  duties  were  prescribed 
by  the  same  act  (39  Stat.,  573).  superseding 


the  provisions  of  sections  1  and  2  of  this  act 
on  the  same  subject. 

The  pav  of  pharmacists  was  also  prescribed  by 
act'of  August  29,  1916  (39  Stat.,  573),  which 
further  provided  for  the  promotion  of 
pharmacists  to  chief  pharmacists,  thereby 
superseding  a  provision  in  the  act  of  August 
22,  1912  (37  Stat.,  345),  which  had  previous- 
ly authorized  such  promotion. 

See  note  to  section  1405,  Revised  Statutes. 


[1898,  July  7.  Leaves  of  absence,  Executive  Departments.]  Nothing  con- 
tained in  section  seven  of  the  Act  making  appropriations  for  legislative,  execu- 
tive, and  judicial  expenses  of  the  Government  for  the  fiscal  year  eighteen 
hundred  and  ninety-nine,  approved  March  fifteenth,  eighteen  hundred  and 
ninety-eight,  shall  be  construed  to  prevent  the  head  of  any  Executive  Depart- 
ment from  granting  thirty  days'  annual  leave  with  pay  in  any  one  year  to  a 
clerk  or  employee,  notwithstanding  such  clerk  or  employee  may  have  had 
during  such  year  not  exceeding  thirty  days'  leave  with  pay  on  account  of 
sickness  as  provided  in  said  section  seven. —  (30  Stat.,  653,  chap.  571.) 

See  the 


The  act  of  IMarch  15,  1898,  section  7  (30  Stat., 
316-317),  referred  to  herein,  expressly 
amended  and  reenacted  section  5  of  the  act 


of  March  3,  1893  (27  Stat.,  715). 
latter  act  and  note  thereto. 


[1899,  Feb.  24,  sec.  4.  Leaves  of  absence,  Executive  Departments.]  That 
the  thirty  days'  annual  leave  of  absence  with  pay  in  any  one  year  to  clerks  and 
employees  in  the  several  Executive  Departments  authorized  by  existing  law 
shall  be  exclusive  of  Sundays  and  legal  holidays. —  (30  Stat.,  890,  chap.  187.) 

See  act  of  March  3,  1893,  section  5  (27  Stat.,  715),  and  note  thereto. 

[1899,  Mar.  3,  sees.  1-6.  Personnel  Act;  Engineer  Corps  transferred  to  line.] 

officer  attained  the  same  relative  rank  of  cap- 
tain, commander,  or  lieutenant-commander  are 
the  same,  the  engineer  officer  shall  take  rank 
after  such  line  officer. — (30  Stat.,  1005,  chap, 
413.) 

"Sec.  3.  That  engineer  officers  who  com- 
pleted their  Naval  Academy  course  of  four 
years  from  eighteen  hundred  and  seventy-eight 
to  eighteen  himdred  and  eighty,  both  inclusive, 
shall  take  rank  in  the  line  as  determined  by  the 
Academic  Board  under  the  Department's  in- 
stnictions  of  Decemlier  first,  eighteen  hundred 
and  ninety-seven;  and  engineer  officers  who 
completed  their  Naval  Academy  course  of  four 
years  in  eighteen  hundred  and  eighty-one  and 
eighteen  hundred  and  eighty-two  shall  take 
rank  in  the  line  as  determined  by  the  merit 
roll  of  graduating  classes  at  the  conclusion  of 
the  six  years'  course,  June,  eighteen  hundred 
and  eighty-three  and  eighteen  himdred  and 


These  sections  provided  as  follows: 
"That  the  officers  constituting  the  Engineer 
Corps  of  the  Na\-y  be,  and  are  hereby,  trans- 
ferred to  the  line  of  the  Navy,  and  shall  be 
commissioned  accordinglv.  (30  Stat.,  1004, 
chap.  413.) 

"Sec.  2.  That  engineer  officers  holding  the 
relative  rank  of  captain,  commander,  and 
lieutenant-commander  shall  take  rank  in  the 
line  of  the  Navy  according  to  the  dates  at  which 
they  attained  such  relative  rank.  Engineer 
officers  graduated  from  the  Naval  Academy 
from  eighteen  hundred  and  sixty-eight  to 
eighteen  hundred  and  seventy-six,  both  years 
inclusive,  shall  take  rank  in  the  line  next  after 
officers  in  the  line  who  graduated  from  the 
Naval  Academy  in  the  same  year  with  them: 
Provided,  That  when  the  date  of  a  line  officer's 
commission  as  captain,  commander,  or  lieuten- 
ant-commander and  the  date  when  the  engineer 


1263 


Mar.  3,  1899. 


rt.  3.  STATUTES  AT  LARGE. 


Personnel  Act. 


eighty-four:  Provided,  Tliat  those  engineer 
oflk'ora  wlio  were  appointed  from  ci\il  life,  and 
whose  status  is  not  fixed  l)y  section  two  of  this 
Act,  shall  take  rank  with  other  line  officers  ac- 
cording to  the  dates  of  their  first  commissions, 
respectively:  And  provided  further.  That  the 
engineer  officers  wlio  completed  their  Naval 
Academy  com'se  of  four  years  in  eighteen  hun- 
dred and  eighty-one  and  eighteen  hundred  and 
eighty- two  shall  retain  among  themselves  the 
same  relative  standing  as  shown  on  the  Na^'y 
register  at  the  date  of  the  passage  of  this  Act. — 
(30  Stat.  1005,  chap.  413.) 

"Sec.  4.  That  engineer  officers  transferred 
to  the  line  who  are  below  the  rank  of  com- 
mander, and  extending  down  to,  but  not 
including,  the  first  engineer  who  entered  the 
Naval  Academy  as  cadet  midshipman,  shall 
perform  sea  or  shore  duty,  and  such  duty  shall 
be  such  as  is  performed  by  engineers  in  the 
Navy:  Promded,  That  any  officer  described  in 
this  section  may,  upon  his  own  application, 
made  within  six  months  after  the  passage  of 
this  Act,  be  assigned  to  the  general  duties  of  the 
line,  if  he  pass  the  examination  now  provided 
by  law  as  preliminary  to  promotion  to  the  grade 
he  then  holds,  failure  to  pass  not  to  displace 
such  officer  from  the  list  of  officers  for  sea  or 
shore  duty  such  as  is  performed  by  engineers 
in  the  Navy\— (30  Stat.,  1005,  chap.  413.) 

"Sec.  5.  That  engineer  officers  transferred 
to  the  line  to  perform  engineer  duty  only  who 
rank  as,  or  above,  commander,  or  who  subse- 


quently attain  such  rank,  shall  perform  shore 
duty  only.     (30  Stat.,  1005,  chap.  413.) 

"Sec  6.  That  all  engineer  officers  not  pro- 
vided for  in  sections  four  and  five  transferred  to 
the  line  shall  perform  the  duties  ixow  performed 
by  line  officers  of  the  same  grade:  Provided, 
That  after  a  period  of  two  years  subsequent 
to  the  passage  of  this  Act  they  shall  be  required 
to  pass  the  examinations  now  provided  by  law 
as  preliminary  to  promotion  to  the  grade  they 
then  hold,  and  subject  to  existing  law  governing 
examinations  for  promotion."  (30  Stat.,  1005, 
chap.  413.) 

See  sections  1390-1394,  and  1521, 
Re\'ised  Statutes,  and  notes  thereto,  for  laws 
and  decisions  relating  to  officers  of  the  former 
Engineer  Corps. 

Duties  of  former  engineer  oflB-cers. — 
Former  engineer  officers  who,  under  this  act, 
performed  engineering  duty  only,  on  shore 
only,  were  made  eligible  for  any  shore  duty 
compatible  with  their  rank  and  grade  to  which 
the  Secretary  of  the  Navy  may  assign  them,  bv 
act  of  June  30,  1914  (38  Stat.,  394),  reenacted 
and  made  permanent  by  act  of  March  3,  1915  (38 
Stat.,  930).  See  notes  to  section  1390  and  1404, 
Revised  Statutes. 

Line  oflicers  for  engineering  duty 
only. — The  appointment  and  assignment  of  line 
officers  for  engineering  duty  only  were  author- 
ized by  acts  of  Febniary  16,  1914,  section  21 
(38  Stat.,  283),  and  August  29,  1916  (39  Stat., 
580). 


[1899,  Mar.  3,  sec.  7.  Number  of  line  officers;  commodores  omitted.] 


This  provision  read  as  follows: 
"That  the  active  list  of  the  line  of  the  Navy, 
as  constituted  by  section  one  of  this  Act,  shall 
be  composed  of  eighteen  rear-admirals,  seventy 
captains,  one  hundred  and  twelve  commanders, 
one  hundred  and  seventy  lieutenant-comman- 
ders, three  hundred  lieutenants,  and  not  more 


than  a  total  of  three  himdred  and  fifty  lieuten- 
ants (jimior  grade)  and  ensigns." — (30  Stat., 
1005,  chap.  413.) 

See  sections  1362-1363,  Revised  Statutes, 
and  note  thereto,  as  to  interpretation  of  this 
pro^iso,  and  for  later  laws  relating  to  the 
number  of  line  officers. 


[1899,  Mar.  3,  sec.  7.  Pay  of  rear  admirals,  lower  nine.] 


See  section  1556,  ReAdsed  Statutes,  and 
note  thereto,  under  "4,  Rear  admirals,"  for 
interpretation  of  this  clause,  and  for  later  laws 
relating  to  pay  of  rear  admirals. 


This  proviso  read  as  follo-ws: 

"Provided,  That  each  rear-admiral  embraced 
in  the  nine  lower  numbers  of  that  grade  shall 
receive  the  same  pay  and  allowance  as  are  now 
allowed  a  brigadier-general  in  the  Army." — 
(30  Stat.,  1005,  chap.  413.) 

[1899,  Mar.  3,  sec.  7.  Promotion  of  ensigns.]  Officers,  after  performing  three 
years'  service  in  the  grade  of  ensign,  shall,  after  passing  the  examinations  now 
required  by  law,  bo  eligible  to  promotion  to  the  grade  of  lieutenant  (junior 
grade).— (30  Stat.,  1005,  chap.  413.) 


By  act  of  June  4,  1920,  section  5  (41  Stat.,  836), 
it  was  provided  that,  imtil  June  30,  1923, 
promotions  to  lieutenant  (jimior  grade) 
may  be  made  without  regard  to  length  of 
service. 


As  to  examinations  for  promotion,  see  sections 
1493-1505,  ReA^ised  Statutes,  and  notes 
thereto. 


[1899,  Mar.  3,  sec.  7.  Chiefs  of  bureaus,  rank  and  pay.] 


This  proviso  read  as  follows: 

''Provided,  That  when  the  office  of  chief  of 
bureau  is  filled  bv  an  officer  below  the  rank  of 
rear-admiral,  said  officer  shall,  while  holding 


said  office,  have  the  rank  of  rear-admiral  and 
receive  the  same  pay  and  allowance  as  are  now 
allowed  a  brigadier-general  in  the  Army." — 
(30  Stat.,  1005-1006,  chap.  413.) 


1264 


Personnel  Act. 


Pt.  3.  STATUTES  AT  LARGE. 


Mar.  3,  1899. 


See  sections  421,  1471,  1472,  and  1565, 
Revised  Statutes,  and  notes  thereto,  for  laws 
and  decisions  relating  to  chiefs  of  bureaus. 

By  act  of  May  13,  1908  (35  Stat.,  128),  it  was 
pro\dded  that  the  pay  and  allowances  of  chiefs 
of  bureaus  "shall  be  the  highest  pay  of  the 
grade  to  which_  they  belong,  and  not  below 
that  of  rear  admiral  of  the  lower  nine' ';  by  act 
of  June  24,  1910  (36  Stat.,  607),  it  was  provided 
that  their  pay  and  allowances  shall  be  the 


highest  shore  duty  pay  and  allowances  of  rear 
admiral  of  the  lower  nine;  said  provision  of 
June  24, 1910,  was  repealed  by  act  of  August  22, 
1912  (37  Stat.,  328),  which  made  no  other  pro- 
vision on  the  subject;  by  act  of  July  1, 1918  (40 
Stat.,  717),  chiefs  of  bureaus  in  the  Navy  De- 
partment are  to  have  corresponding  rank  and 
receive  the  same  pay  and  allowances  as  chiefs 
of  bureaus  in  the  War  Department. 


[1899,  Mar.  3,  sec.  7.  Retirement  of  commodores.] 


See  sections  421,  1362,  1473,  and  1481, 

Revised  Statutes,  and  notes  thereto,  for  laws 
and  decisions  relating  to  retirement  of  officers 
with  the  rank  of  commodore.  Such  retirements 
are  now  made  only  under  section  1481,  Re- 
vised Statutes. 


This  proviso  read  as  follows: 

"J.71C?  provided  further,  That  nothing  con- 
tained in  thi3_  section  shall  be  construed  to 
prevent  the  retirement  of  officers  who  now  have 
the  rank  or  relative  rank  of  commodore  with 
the  rank  and  pay  of  that  grade." — (30  Stat., 
1006,  chap.  413.) 

[1899,  Mar.  3,  sec.  7.  Eelative  rank  abolished;  military  command;  titles.] 
And  provided  further,  That  all  sections  of  the  Revised  Statutes  which,  in 
defining  the  rank  of  ofiicers  or  positions  in  the  Navy,  contain  the  words  ''the 
relative  rank  of"  are  hereby  amended  so  as  to  read  ''the  rank  of,"  but  officers 
whose  rank  is  so  defined  shall  not  be  entitled,  in  virtue  of  their  rank  to  com- 
mand in  the  line  or  in  other  staff  corps.  Neither  shall  this  Act  be  construed 
as  changing  the  titles  of  officers  in  the  staff  corps  of  the  Navy. — (30  Stat,, 
1006,  chap,  413.) 


See  sections  1471-1480,  Revised  Statutes,  for 
provisions  relating  to  relative  rank  of 
staff  officers  and  chiefs  of  bureaus. 

See  section  1488,  Revised  Statutes,  as  to  mili- 
tarv  command. 


See    sections   421,    1471,    and    1480,    Revised 
Statutes,  and  notes  thereto,  as  to  titles. 


[1899,  Mar.  3,  sec.  7.  Number  of  civil  engineers.] 


ber,  twenty-one.  "—(30  Stat.,  1006,  chap.  413.) 

See  section  1413,  Revised  Statutes,  and 

note  thereto,   for  later  laws  relating  to  civil 


This  provision  read  as  follows: 

"No  appointments  shall  be  made  of  civil 
engineers  in  the  Navy  on  the  active  list  under 
section  fourteen  hundred  and  thirteen  of  the 
Revised  Statutes  in  excess  of  the  present  num- 

[1899,  Mar.  3,  sec.  8.  Voluntary  retirements,  to  create  vacancies.]  That 
officers  of  the  line  in  the  grades  of  captain,  commander,  and  lieutenant-com- 
mander may,  by  official  application  to  the  Secretary  of  the  Navy,  have  their 
names  placed  on  a  list  which  shall  be  known  as  the  list  of  "Applicants  for 
voluntary  retirement,"  and  when  at  the  end  of  any  fiscal  year  the  average 
vacancies  for  the  fiscal  years  subsequent  to  the  passage  of  this  Act  above  the 
grade  of  commander  have  been  less  than  thirteen,  above  the  grade  of  lieutenant- 
commander  less  than  twenty,  above  the  grade  of  lieutenant  less  than  twenty- 
nine,  and  above  the  grade  of  lieutenant  (junior  grade)  less  than  forty,  the 
President  may,  in  the  order  of  the  rank  of  the  applicants,  place  a  sufficient 
number  on  the  retired  list  with  the  rank  and  three-fourths  the  sea  pay  of  the 
next  higher  grade,  as  now  existing,  including  the  grade  of  commodore,  to  cause 
the  aforesaid  vacancies  for  the  fiscal  year  then  being  considered. — (30  Stat., 
1006,  chap.  413.) 

By  act  of  August  22,  1912  (37  Stat.  328),  it  was 
provided  that  officers  thereafter  retired 
under  this  section  shall  be  retired  with  the 
rank  and  three-fourths  of  the  sea  pay  of  the 
grade  fiom  which  retired. 


See  sections  1457  and  1588,  Revised  Statutes, 
and  notes  thereto,  on  general  subject  of 
rank  and  pay  on  retirement;  see  also  next 
section  of  this  act,  set  forth  below,  and  note 
thereto. 


1265 


ISIar.  3,  1899. 


Pt.  3.  STATUTES  AT  LARGE. 


Personnel  Act. 


[1899,  Mar.  3,  sec.  9.     Compulsory  retirements,  to  create  vacancies.] 


This  section  read  as  follows: 

"That  should  it  be  found  at  the  end  of  any 
fiscal  year  that  the  retirements  pursuant  to  the 
provisions  of  law  now  in  force,  the  voluntary  re- 
tirements pro\'ided  for  in  this  Act,  and  casualties 
are  not  suHicient  to  cause  the  average  vacancies 
enumerated  in  section  eight  of  this  Act,  the 
Secretary  of  the  Navy  shall,  on  or  about  the 
first  day  of  June,  convene  a  board  of  five  rear- 
admirals,  and  shall  place  at  its  disposal  the 
service  and  medical  records  on  file  in  the  Navy 
Department  of  all  the  officers  in  the  grades  of 
captain,  commander,  lieutenant-commander, 
and  lieutenant.  The  board  shall  then  select, 
as  soon  as  practicable  after  the  first  day  of  July, 
a  sufficient  number  of  officers  from  the  before- 
mentioned  grades,  as  constituted  on  the  thirti- 
eth day  of  June  of  that  year,  to  cause  the  average 
vacancies  enumerated  in  section  eight  of  this 
Act.  Each  member  of  said  board  shall  swear, 
or  affirm,  that  he  will,  without  prejudice  or  par- 
tiality, and  having  in  view'  solely  the  special 
fitness  of  officers  and  the  efficiency  of  the  naval 
ser\-ice,  perform  the  duties  imposed  upon  him 
by  this  Act.  Its  finding,  which  shall  be  in 
writing,  signed  by  all  the  members,  not  less 
than  four  governing,  shall  be  transmitted  to  the 
President,  who  shall  thereupon,  by  order,  make 
the  transfers  of  such  officers  to  the  retired  list 
as  are  selected  by  the  board:  Provided,  That  not 
more  than  five  captains,  four  commanders,  four 
lieutenant-commanders,    and   two   lieutenants 


are  so  retired  in  any  one  year.  The  promotions 
to  fill  the  vacancies  thus  created  shall  date  from 
the  thirtieth  day  of  June  of  the  current  year: 
And  provided  further,  That  any  officer  retired 
under  the  provisions  of  this  section  shall  be 
retired  with  the  rank  and  three-fourths  the  sea 
pay  of  the  next  higher  grade,  including  the 
grade  of  commodore,  which  is  retained  on  the 
retired  list  for  this  purpose."— (30  Stat.  1006, 
chap.  413.) 

It  was  amended  by  act  of  August  22, 1912 
(37  Stat.  32S),  which  provided  that  officers 
thereafter  retired  under  this  section  were  to  be 
retired  with  the  rank  and  three-fourths  of  the 
sea  pay  of  the  grade  from  which  retired. 

It  was  repealed  by  act  of  March  3,  1915. 
(38  Stat.  938.)  The  same  act  (38  Stat.  939), 
authorized  the  President,  with  the  advice  and 
consent  of  the  Senate,  within  two  years  from  the 
date  of  said  act,  to  restore  to  the  acti\'e  list  any 
officer  of  the  Navy  retired  under  this  section. 
No  restorations  were  made  under  said  enact- 
ment. By  act  of  August  29,  1916  (39  Stat. 
602-603),  the  President  was  authorized  to  re- 
store to  the  active  list  certain  officers  named 
therein  who  had  been  retired  under  the  pro- 
visions of  this  and  the  preceding  section. 

See  note  to  Constitution,  Article  I,  section  7, 
clause  2,  under ' '  Veto  of  bill  to  restore  to  active 
list  officer  voluntarily  retired,"  and  "Veto  of 
bill  to  restore  to  active  list  officer  compul- 
sorily  retired." 


[1899,  Mar.  3,  sec.  10.  Construction  oflicers,  number  and  rank  of;  promo- 
tions.] That  of  ttie  naval  constructors  five  shall  have  the  ranis  of  captain, 
five  of  commander,  and  all  others  that  of  lieutenant-commander  or  lieutenant. 
Assistant  naval  constructors  shall  have  the  rank  of  lieutenant  or  lieutenant 
(junior  grade).  Assistant  naval  constructors  shall  be  promoted  to  the  grade 
of  naval  constructor  after  not  less  than  eight  or  more  than  fourteen  years' 
service  as  assistant  naval  constructor:  Provided,  That  the  whole  number  of  naval 
constructors  and  assistant  naval  constructors  on  the  active  list  shall  not  exceed 
forty  in  all.— (30  Stat.,  1006-1007,  chap.  413.) 

with  act  of  August  29,  1916  (39  Stat.  576). 


See  sections  1402-1404,  and  1477,  Revised 
Statutes,  and  notes  thereto,  for  later  laws 
relating  to  the  number  and  rank  of  con- 
struction officers. 

Assistant  naval  constructors  are  appointed  with 
the  rank  of  lieutenant  (junior  grade),  in 
accordance  with  this  section;  they  are 
advanced  in  rank  up  to  and  including  the 
rank  of  lieutenant  commander  with  their 
"running  mates"  in  the  line,  in  accordance 


They  are  promoted  to  naval  constructor 
after  length  of  ser\dce,  in  accordance  with 
this  section;  naval  constructors  are  ad- 
vanced to  ranks  above  Lieutenant  com- 
mander by  selection,  in  accordance  with 
act  of  July  1,  1918  (40  Stat.  718). 
As  to  promotion  and  advancement  of  officers, 
see  sections  1493-1505,  Revised  Statutes, 
and  notes  thereto. 


[1899,  Mar.  3,  sec.  11.  Retirement,  officers,  civil  war  service.]     That  any 

officer  of  the  Navy,  with  a  creditable  record,  who  served  during  the  civil  war, 

shall,  when  retired,  be  retired  with  the  rank  and  three-fourths  the  sea  pay  of 

the  next  higher  grade. — (30  Stat.,  1007,  chap.  413.) 

See  act  of  June  29,  1906  (34  Stat.,  554),  and  notes  thereto;  and  see  notes  to  sections  1457, 
1588,  and  1622,  Revised  Statutes. 

[1899,  Mar.  3,  Sec.  12.  Warrant  officers  and  commissioned  warrant  officers; 
appointment,  promotion,  pay.]  That  boatswains,  gunners,  carpenters,  and 
sailmakers  shall  after  ten  years  from  date  of  warrant  be  commissioned  chief 

1266 


Personnel  Act. 


Ft.  3.  STATUTES  AT  LARGE. 


Mar.  3,  1890. 


boatswains,  chief  gunners,  chief  carpenters,  and  chief  sailmakers,  to  rank  with 
but  after  ensign :  Provided,  That  the  chief  boatswains,  chief  gunners,  chief  car- 
penters, and  chief  sailmakers  shall  on  promotion  have  the  same  pay  and  allow- 
ances as  are  now  allowed  a  second  lieutenant  in  the  Marine  Corps:  Provided, 
That  the  pay  of  boatswains,  gunners,  carpenters  and  sailmakers  shall  be  the 
same  as  that  now  allowed  by  law:  Provided,  further,  That  nothing  in  this  Act 
shall  give  additional  rights  to  quarters  on  board  ship  or  to  command,  and  that 
immediately  after  the  passage  of  this  Act  boatswains,  gunners,  carpenters  and 
sailmakers,  who  have  served  in  the  Navy  as  such  for  fifteen  years,  shall  be 
commissioned  in  accordance  with  the  provisions  of  this  section,  and  thereafter 
no  warrant  officer  shall  be  promoted  until  he  shall  have  passed  an  examination 
before  a  board  of  chief  boatswains,  chief  gunners,  chief  carpenters  and  chief 
sailmakers,  in  accordance  with  regulations  prescribed  by  the  Secretary  of  the 
Navy.— (30  Stat.,  1007,  chap.  413.) 

See  notes  to  sections  1405,  1407,  1410,  1417, 

1438,   1491,  and  1556,   Revised   Statutes; 

and  see  sections  14  and  15  of  this  act. 
Promotion  of  boatswains,  gunners,  carpenters, 

and  sailmakers,  to  commissioned  warrant 

officers,  after  six  years  from  date  of  warrant, 

was  authorized  by  act  of  April  27,  1904 

[1899,  Mar.  3,  sec.  13.  Pay  and  allowances,  commissioned  officers.]  That, 
after  June  thirtieth,  eighteen  hundred  and  ninety-nine,  commissioned  officers 
of  the  line  of  the  Navy  and  of  the  Medical  and  Pay  Corps  shall  receive  the  sam<^ 
pay  and  allowances,  except  forage,  as  are  or  may  be  provided  by  or  in  pursuance 
of  law  for  the  officers  of  corresponding  rank  in  the  Army. — (30  Stat.,  1007, 
chap.  413.) 


(33  Stat.,  346).  See  also  note  to  section 
1405,  Revised  Statutes,  under  "Promotion 
of  warrant  officers." 
Pay  of  warrant  officers  and  commissioned  war- 
rant officers.  See  note  to  section  1556, 
Re\T.sed  Statutes. 


By  the  Army  appropriation  act  of  May  11,  1908 
(35  Stat.,  108\  it  was  pro\dded  that  this 
section  ' '  shall  not  be  construed  as  changing 
the  pay  of  any  naval  officer  by  reason  of 
the  provisions  of  this  Act." 

So  much  of  tliis  provision  as  relates  to  pay  has 
been  superseded  by  later  laws,  except  in 
so  far  as  such  later  enactments  have  con- 
tained saAdng  clauses  protecting  officers 
against  any  reduction  in  pay  by  reason 
thereof.  (See  note  to  sec.  1556,  R.  S., 
under  "1.  General  rule;  amendatory  stat- 
utes." 


So  much  of  this  provision  aa  relates  to  allow- 
ances is  still  in  force,  and  has  been  ex- 
tended to  include  all  commissioned 
officers  of  the  Navy.  (See  acts  of  May  13, 
1908,  35  Stat.,  128,  and  Aug.  29,  1916, 
39  Stat.,  581;  see  also  24  Comp.  Dec.  610, 
noted  under  sec.  1487,  R.  S.;  and  see,  as  to 
allowances  in  general,  notes  to  Bees.  1487 
and  1558,  R.  S.) 

The  designation  of  the  "Pay  Corps"  was 
changed  to  "Supply  Corps,"  by  act  of 
July  11,  1919  (41  Stat.,  147) 


[1899,  Mar.  3,  sec.  13.  Pay  reduced  for  shore  duty.] 


This  proviso  read  as  follows: 

^'Provided,  That  such  officers  when  on  shore 
shall  receive  the  allowances,  but  fifteen  per 
centum  less  pay  than  when  on  sea  duty ;  but 
this  provision  shall  not  apply  to  warrant  offi- 
cers commissioned  under  section  twelve  of  this 
Act."— (30  Stat.,  1007,  chap.  413.) 


It  was  repealed  by  act  of  June  29,  1906 

(34  Stat.,  554). 

By  act  of  May  13,  1908  (35  Stat.",  128),  officers 
on  sea  duty  were  allowed  10  per  cent  increase 
in  the  pay  therein  provided  for  shore  duty. 
(See  notes  to  sec.  1571,  R.  S.,  as  to  sea  service.) 


[1899,  Mar.  3,  sec.  13.  Shore  duty  beyond  seas.] 


This  proviso  read  as  follows: 

^^ Provided  further,  That  when  naval  officers 
are  detailed  for  shore  duty  beyond  seas  they 
shall  receive  the  same  pay  and  allowances  as 
are  or  may  be  provided  by  or  in  pursuance  of 
law  for  officers  of  the  Army  detailed  for  duty  in 
similar  places."— (30  Stat.,  1007,  chap.  413.) 


See  note  to  section  1556,  Revised  Stat- 
utes, under  "38.  Additional  pay  for  special 
duty,"  for  later  laws  and  decisions  relating  to 
pay  of  officers  for  shore  duty  beyond  seas. 


1267 


Mar.  3,  1899. 


Ft.  3.  STATUTES  AT  LARGE. 


Personnel  Act. 


[1899,  Mar.  3,  sec.  13.  Rank  of  chaplains.] 


This  proviso  read  as  follows: 

"■Providdl furtlur,  That  naval  chaplains,  who 
do  not  possess  relative  rank,  shall  have  the 
rank  of  lieutenant  in  the  Navy."— (30  Stat., 
1007,  chap.  413.) 


See  section  1479,  Revised  Statutes,  and 
note  thereto,  for  later  laws  and  decisions 
relating  to  the  rank  of  chaplains. 


1899,  Mar.  3,  sec.  13.   Constructive  service,  longevity  pay.] 


It  was  repealed  by  act  of  March  4,  1913 
(37  Stat.,  891-892),  as  to  persons  entering  the 
Na\y  from  and  after  the  date  of  said  act. 

See  note  to  section  1556,  Revised  Statutes, 
under  "39.  Longe\'ity  pay. ' ' 


This  clause  read  as  follows: 

"And  that  all  officers,  including  warrant 
officers,  who  have  been  or  may  be  appointed  to 
the  NaAy  from  civil  life  shall,  on  the  date  of 
appointment,  be  credited,  for  computing  their 
pav,  mth  five  vears'  service." — (30  Stat., 
1007,  chap.  413.)  " 

[1899,  Mar.  3,  sec.  13.  Prize  and  bounty,  laws  repealed.]  And  all  provisions 
of  law  authorizing  the  distribution  among  captors  of  the  whole  or  any  portion 
of  the  proceeds  of  vessels,  or  any  property  hereafter  captured,  condemned  as 
prize,  or  providing  for  the  payment  of  bounty  for  the  sinking  or  destruction 
of  vessels  of  the  enemy  hereafter  occurring  in  time  of  war,  are  hereby  repealed. — 
(30  Stat.,  1007.,  chap.  413.) 


See  sections  4613-4652,  Revised  Statutes,  and 
notes  thereto,  as  to  prize. 


See  section  1536,  Revised  Statutes,  and  note 
thereto,  as  to  salvage. 


[1899,  Mar.  3,  sec.  13.  Present  pay  not  reduced.]  And  'provided  further, 
That  no  provision  of  this  Act  shall  operate  to  reduce  the  present  pay  of  any 
commissioned  officer  now  in  the  Navy;  and  in  any  case  in  which  the  pay  of 
such  an  officer  would  otherwise  be  reduced  he  shall  continue  to  receive  pay 
according  to  existing  law. — (30  Stat.,  1007,  chap.  413.) 

Amendment  to  this  proviso  was  made  by  act  of 
June  7,  1900  (31  Stat.,  697),  so  as  to  pro\dde 
that  nothing  contained  in  this  act  "shall 
operate  to  reduce  the  pay  which,  but  for 
the  passage  of  said  act,  would  have  been 


recei-s'ed  by  any  commissioned  officer  at  the 
time  of  its  passage  or  thereafter. ' ' 
See  note  to  section  1556,  Revised  Statutes,  un- 
der "1.     General  rule:  amendatory  stat- 
utes." 


[1899,  Mar.  3,  sec.  13.  Pay  of  retired  officers.] 


the  Navy."— (30  Stat.,  1007,  chap.  413.) 

See  section  1588  Revised  Statutes,  and 
note  thereto,  as  to  pay  of  retired  officers. 


This  proviso  read  as  follows: 

''And  provided  further,  That  nothing  in  this 
Act  shall  operate  to  increase  or  reduce  the 
pay  of  any  officer  now  on  the  retired  list  of 

[1899,  Mar.  3,  sec.  14.  Machinists,  appointment,  qualifications,  number.] 
That  upon  the  passage  of  this  Act  the  Secretary  of  the  Navy  shall  appoint  a 
board  for  the  examination  of  men  for  the  position  of  warrant  machinists,  one 
hundred  of  whom  are  hereby  authorized.  The  said  examination  shall  be  open, 
first,  to  all  machinists  by  trade,  of  good  record  in  the  naval  service,  and  if  a 
sufficient  number  of  machinists  from  the  Navy  are  not  found  duly  qualified, 
then  any  machinist  of  good  character,  not  above  thirty  years  of  age,  in  civil 
life  shall  be  chgible  for  such  examination  and  appointment  to  fill  the  remaining 
vacancies.  All  subsequent  vacancies  in  the  list  of  warrant  machinists  shall 
be  filled  by  competitive  examination  before  a  board  ordered  by  the  Secretary 
of  the  Navy,  and  open  to  all  machinists  by  trade  who  are  in  the  Navy,  and 
machinists  of  good  character,  not  above  thirty  years  of  age,  in  civil  life  author- 
ized by  the  Secretary  of  the  Navy  to  appear  before  said  board,  and,  where 
candidates  from  civil  life  and  from  the  naval  service  possess  equal  qualifications. 


1268 


Personnel  Act. 


Pt.  S.  STATUTES  AT  LARGE. 


Mar.  3,  1899. 


the  preference  shall  be  given  to  those  from  the  naval  service. — (30  Stat.,  1007- 
1008,  chap.  413.) 


The  title  of  "warrant  machinist"  was  changed 
to  "machinist"  by  act  of  March  3,  1909  (35 
Stat.,  771). 


See  note  to  section  1405,  Revised  Statutes,  un- 
der "Machinists,"  and  "Promotion  of  war- 
rant officers";  see  also  sections  1407,  1417, 
1438,  1491,  and  1556,  Revised  Statutes,  and 
notes  thereto. 

[1899,  Mar.  3,  sec.  15.  Machinists,  pay  and  retirement;  acting  appointment; 
uniform.]  That  the  pay  of  warrant  macliinists  shall  be  the  same  as  that  of 
warrant  officers,  and  they  shall  be  retu'ed  under  the  provisions  of  existing  law 
for  warrant  officers.  Warrant  machinists  shall  receive  at  first  an  acting 
appointment,  which  may  be  made  permanent  under  regulations  established  by 
the  Navy  Departmentf  or  other  warrant  officers.  They  shall  take  rank  with  other 
warrant  officers  according  to  date  of  appointment  and  shall  wear  such  uniform 
as  may  be  prescribed  by  the  Navy  Department. — (30  Stat.,  1008,  chap.  413.) 


Title  of  "warrant  machinist"  changed  to  "ma- 
chinist": See  note  to  preceding  section. 

Pay  of  warrant  officers  and  acting  warrant  offi- 
cers: See  note  to  section  1556,  Revised  Stat- 
utes, under  "25.  Warrant  officers,  acting 
warrant  officers,  and  commissioned  warrant 
officers. ' ' 


Retirement  of  warrant  officers:  See  notes  to 
sections  1405  and  1448,  Revised  Statutes, 
under  "Retirement  of  warrant  officers." 

Acting  appointments:  See  section  1410,  Re- 
\ised  Statutes,  and  note  thereto. 

Rank  of  warrant  officers:  See  section  1491,  Re- 
vised Statutes,  and  note  thereto. 


[1899,  Mar.  3,  sec.  16.  Term  of  enlistment;  honorable  discharge  gratuity; 

continuous  service  pay.] 

recommendation  for  reenlistment  upon  the 
expiration  of  his  last  term  of  service  of  not  less 
than  three  years,  who  reenlists  for  a  term  of 
four  years  witliin  four  months  from  the  date  of 
his  discharge,  shall  receive  an  increase  of  one 
dollar  and  thirty-six  cents  per  month  to  the 
pay  prescribed  for  the  rating  in  which  he  serves 
for  each  consecutive  reenlistment.'  " — (30 
Stat.,  1008,  chap.  413.) 

See  note  to  section  1418,  Revised 
Statutes,  for  later  laws  as  to  term  of  enlistment; 
and  see  section  1573,  Revised  Statutes,  and 
note  thereto,  for  later  amendment  and  reenact- 
ment  of  that  section,  and  for  decisions  respect- 
ing honorable  discharge  gratuity  and  con- 
tinuous service  pay. 


This  section  read  as  follows: 

"That  hereafter  the  term  of  enlistment  of 
all  enlisted  men  of  the  Navy  shall  be  four  years: 
Provided,  That  section  fifteen  hundred  and 
seventy-three.  Revised  Statutes,  be  amended 
to  read:  'If  any  enlisted  man  or  apprentice, 
being  honorably  discharged,  shall  reenlist  for 
four  years  within  four  months  thereafter,  he 
shall,  on  presenting  his  honorable  discharge  or 
on  accounting  in  a  satisfactory  manner  for  its 
loss,  be  entitled  to  pay  during  the  said  four 
months  equal  to  that  to  which  he  would  have 
been  entitled  if  he  had  been  employed  in 
actual  service;  and  that  any  man  who  has 
received  an  honorable  discharge  from  his  last 
term   of  enlistment,    or  who   has   received  a 


[1899,  Mar.  3,  sec.  17.  Retirement  of  enlisted  men.]  That  when  an  enlisted 
man  or  appointed  petty  officer  has  served  as  such  thirty  years  in  the  Unitea 
States  Navy,  either  as  an  enlisted  man  or  petty  officer,  or  both,  he  shall,  by 
making  appUcation  to  the  President,  be  placed  on  the  retired  list  hereby  created, 
with  the  rank  held  by  him  at  the  date  of  retirement;  and  he  shall  thereafter 
receive  seventy-five  per  centum  of  the  pay  and  allowances  of  the  rank  or  rating 
upon  which  he  was  retired :  Provided,  That  if  said  enlisted  man  or  appointed  petty 
officer  had  active  service  in  the  Navy  or  in  the  Army  or  IVIarine  Corps,  either  as 
volunteer  or  regular,  during  the  civil  or  Spanish- American  war,  such  war  service 
shall  be  computed  as  double  time  in  computing  the  thirty  years  necessary  to 
entitle  him  to  be  retired:  And  'provided  further,  That  applicants  for  retirement 
under  this  section  shall,  unless  physically  disqualified  for  service,  be  at  least 
fifty  years  of  age. — (30  Stat.,  1008,  chap.  413.) 


This  section  was  amended  by  act  of  June  22, 

1906  (34  Stat.,  451),  and  as  so  amended  was 
in  large  part  superseded  by  act  of  March  2, 

1907  (34  Stat.,  1217). 


By  act  of  March  3,  1915  (38  Stat.,  941),  "the 
period  of  time  during  which  members  of 
the  naval  resei've  were  actively  employed 
with  the  Navv  while  enlisted  in  the  naval 


1269 


Mar.  3,  1899. 


Pt.  3.  STATUTES  AT  LARGE. 


Personnel  Act. 


resers'e  shall,  for  the  purposes  of  retirement, 
be  counted  as  active  service  in  the  Navy 
in  the  case  of  those  who  reenlist  in  the 
Navy  after  8er\ace  in  the  naval  reserve." 
By  act  of  August  29,  1916  (39  Stat.,  591), 
transferred  members  of  the  Fleet  Naval 
ReserNe  may  be  placed  on  the  retired  list 
of  the  Na^•y  upon  completing  30  years 
serv-ice,  including  naval  and  fleet  naval 
reserve  ser\-ice;  and  by  act  of  July  1,  1918 
(40  Stat.,  710),  "service  in  the  Navy, 
Marine  Corps,  National  Naval  Volunteers, 
and  Naval  Militia  _  shall  be  counted  as 
continuous  service  in  the  Naval  Reserve 
Force  "  for  the  purpose  of  retirement. 


Active  duty  for  retired  enlisted  men,  in  time  of 
war  or  emergency,  was  authorized  by  acts 
of  March  3, 1915  (38  Stat.,  941),  and  August 
29, 1916  (39  Stat.,  591). 

Authority  for  the  advancement  of  retired 
enlisted  men  employed  on  active  duty  is 
contained  in  the  act  of  July  1,  1918  (40 
Stat.,  719).  As  to  their  pay  while  on  active 
duty,  see  note  to  section  1569,  Revised 
Statutes,  under  "17.  Retired  enlisted 
men." 

As  to  status  of  retired  enlisted  men,  and  whether 
subject  to  trial  by  court-martial,  see  note 
to  section  1624,  Revised  Statutes. 


[1899,  Mar.  3,  sec.  18.  Marine  Corps,  number  and  rank  of  line  officers.] 


This  section  provided  as  follows: 

' '  That  from  and  after  the  date  of  the  approval 
of  this  Act  the  active  list  of  the  line  officers  of 
the  United  States  Marine  Corps  shall  consist  of 
of  one  brigadier-general  commandant,  five 
colonels,  five  lieutenant  colonels,  ten  majors, 
sixty  captains,  sixty  first  lieutenants  and  sixty 
second  lieutenants:  Provided,  That  vacancies 
in  all  gi'ades  in  the  line  created  by  this  section 
shall  be  filled  as  far  as  possible  by  promotion  by 
seniority  fi'om  the  line  officers  on  the  active  list 
of  said  Corps:  And  provided  further,  That  the 


commissions  of  officers  now  in  the  Marine 
Corps  shall  not  be  vacated  by  this  act:  And 
provided  further.  That  vacancies  in  the  gi'ade  of 
brigadier-general  shall  be  filled  by  selection 
from  officers  on  the  active  list  of  the  Marine 
Corps  not  below  the  grade  of  field  officer." — (30 
Stat.,  1008,  chap.  413.) 

See  note  to  section  1596,  Revised 
Statutes,  for  later  laws  as  to  organization  of  the 
Marine  Corps;  and  see  note  to  section  1601, 
Revised  Statutes,  as  to  rank  of  the  commandant. 


[1899,  Mar.  3,  sec.  19.  Marine  Corps,  filling  of  vacancies.] 


with  Spain;  or,  third,  from  meritorious  non- 
commissioned officers  of  the  Marine  Corps;  or, 
fourth,  from  civil  life:  Provided,  That  after 
said  vacancies  are  once  filled  there  shall  be  no 
further  appointments  from  civil  life." — (30 
Stat.,  1008,  chap.  413.) 

See  note  to  section  1599,  Revised 
Statutes,  for  later  laws  and  decisions  relating  to 
the  filling  of  vacancies  in  the  Marine  Corps. 


This  section  provided  as  follows: 

"That  the  vacancies  existing  in  said  Corps 
after  the  promotions  and  appointments  herein 
provided  for  shall  be  filled  by  the  President 
from  time  to  time,  whenever  the  actual  needs 
of  the  naval  ser\'ice  require  it,  first,  from  the 
graduates  of  the  Naval  Academy  in  the  manner 
now  provided  by  law;  or,  second,  from  those 
who  are  ser\dng  or  who  have  served  as  second 
lieutenants  in  the  Marine  Corps  during  the  war 

[1899,  Mar.  3,  sec.  20.  Marine  Corps,  ages  of  candidates;  examination  for 
promotion.]  That  no  person  except  such  officers  or  former  graduates  of  the 
Naval  Academy  as  have  served  in  the  war  with  Spain,  as  hereinbefore  provided 
for,  shall  be  appointed  a  commissioned  officer  in  the  Marine  Corps  who  is  under 
twenty  or  over  thirty  years  of  age;  and  that  no  person  shall  be  appointed  a 
commissioned  officer  in  said  corps  until  he  shall  have  passed  such  examination 
as  may  be  prescribed  by  the  President  of  the  United  States,  except  graduates 
of  the  Naval  Academy,  as  above  provided.  That  the  officers  of  the  Marine 
Corps  above  the  grade  of  captain,  except  brigadier-general,  shall,  before  being 
promoted,  be  subject  to  such  physical,  mental  and  moral  examination  as  is  now, 
or  may  hereafter  be,  prescribed  by  law  for  other  officers  of  the  Marme  Corps. — 
(30  Stat.,  1009,  chap.  413.) 


Ages  for  appointment:  See  section  1599,  Revised 
Statutes,  and  laws  noted  thereunder. 


Examination  for  promotion:  See  note  to  section 
1599,  Revised  Statutes,  \inder  "Laws  re- 
lating to  promotion,"  and  "Laws  relating 
to  promotion  construed." 


[1899,  Mar.  3,  sec.  21.  Marine  Corps  vacancies,  when  filled.] 


This  section  provided  as  follows: 

"That  upon  the  passage  of  this  Act  not  more 

than  forty-five  of  the  captains,  forty-five  first 

lieutenants  and  forty-five  second  lieutenants 

herein  provided  for  shall  be  appointed;  fifteen 


captains,  fifteen  first  lieutenants  and  fifteen 
second  lieutenants  to  be  appointed  subse- 
quently to  January  first,  nineteen  hundred." — 
(30  Stat.,  1009,  chap.  413.) 


1270 


Personnel  Act. 


Pt.  3.  STATUTES  AT  LARGE. 


Mar.  3,  1899. 


[1899,   Mar.  3,  sec.   22.  Marine  Corps,  number  and  rank  of  staff  officers; 
filling  of  vacancies.] 


This  section  provided  as  follows: 

"That  the  staff  of  the  Marine  Corps  shall  con- 
sist of  one  adjutant  and  inspector,  one  quarter- 
master and  one  pajTnaster,  each  with  the  rank 
of  colonel ;  one  assistant  adjutant  and  inspector, 
two  assistant  quartermasters  and  one  assistant 
pajTnaster,  each  with  the  rank  of  major;  and 
three  assistant  quartermasters  with  the  rank  of 
captain.  That  the  vacancies  created  by  this 
Act  in  the  departments  of  the  adjutant  and 
inspector  and  paj-master  shall  be  filled  first  by 
promotion  according  to  seniority  of  the  officers 
in  each  of  these  departments  respectively,  and 
then  by  selection  from  the  line  officers  on  the 
active  list  of  the  Marine  Corps  not  below  the 
grade  of  captain,  and  who  shall  have  seen  not 
less  than  ten  years'  service  in  the  Marine  Corps. 
That  the  vacancies  created  by  this  Act  in  the 
quartennaster's  department  of  said  corps  shall 
be    filled,    first    by    promotion    according    to 


seniority  of  the  officers  in  this  department,  and 
then  by  selection  from  the  line  officers  on  the 
active  list  of  said  corps  not  below  the  grade  of 
first  lieutenant:  Provided,  That  all  vacancies 
hereafter  occurring  in  the  staff  of  the  Marine 
Corps  shall  be  filled  first  by  promotion  according 
to  seniority  of  the  oflicers  in  their  respective  de- 
partments, and  then  by  selection  from  officers  of 
the  line  on  the  active  list,  as  hereinbefore  pro- 
\ided  for."— (30  Stat.,  1009,  chap.  413.) 

See  notes  to  section  1596,  1598,  1599, 
and  1602,  Re\'ised  Statutes,  for  later  laws 
superseding  this  section. 

By  act  of  August  29,  1916  (39  Stat.,  610),  the 
permanent  staff  system  in  the  Marine  Corps  was 
abolished,  and  a  system  of  temporary  details 
from  the  line  was  substituted  therefor.  (See 
note  to  section  1598,  Revised  Statutes.) 

As  to  rank  of  staff  officers,  see  note  to  section 
1602,  Re\ased  Statutes. 


[1899,  Mar.  3,  sec.  23.  Marine  Corps,  number  of  enlisted  men.]  Tliat  the 
enlisted  force  of  ttie  Marine  Corps  shall  consist  of  five  sergeant  majors,  one 
drum  major,  twenty  quartermaster  sergeants,  seventy- two  gunnery  sergeants 
with  the  rank  and  allowance  of  the  first  sergeant,  and  whose  pay  shall  be 
thirty-five  dollars  per  month;  sixty  first  sergeants;  two  hundred  and  forty 
sergeants;  four  hundred  and  eighty  corporals;  eighty  drummers;  eighty 
trumpeters;  and  four  thousand  nine  hundred  and  sixty-two  privates. — (30 
Stat.,  1009,  chap.  413.) 


See  note  to  section  1596,  Revised  Statutes, 
under  " Number  and  grades  of  enlisted 
men,"  for  later  laws  increasing  the  num- 


ber of  enlisted  men  from  time  to  time,  and 
otherwise  modifying,  but  not  repealing  or 
superseding,  this  section. 


[1899,  Mar.  3,  sec.  24.  Marine  band;  organization  and  pay  of.] 


be  fifty  dollars  per  month  and  the  allowances 
of  a  sergeant;  such  musicians  of  the  band  to 
have  no  increased  pay  for  length  of  ser\dce." — 
(30Stat.,1009,  chap.  413.) 

It  -was  superseded  by  act  of  August  29, 1916 
(39  Stat.,  612  I.  See  note  to  section  1596,  Re- 
^'ised  Statutes;  see  also  section  1613,  Revised 
Statutes,  and  note  thereto. 


This  section  provided  as  follows: 

"That  the  band  of  the  United  States  Marine 
Corps  shall  consist  of  one  leader,  with  the  pay 
and  allowances  of  a  first  lieutenant ;  one  second 
leader,  whose  pay  shall  be  seventy-five  dollars 
per  month,  and  who  shall  have  the  allowances 
of  a  sergeant  major;  thirty  first  class  musicians, 
whose  pay  shall  be  sixty  dollars  per  month ;  and 
thirty  second  class  musicians  whose  pay  shall 

[1899,  Mar.  3,  sec.  25.  Navy,  oath  of  allegiance,  officers  and  enlisted  men.] 
That  the  oath  of  allegiance  now  provided  for  the  officers  and  men  of  the  Army 
and  ]\Iarine  Corps  shall  be  administered  hereafter  to  the  officers  and  men  of  the 
Navy.— (30  Stat.,  1009,  chap.  413.) 

See  section  1609.  Revised  Statutes,  and  note  thereto;  see  als.o  notes  to  sections  1342,  1418, 
and  1757,  ReAised  Statutes. 

[1899,  Mar.  3,  sec.  26.  Repeal  of  prior  laws.]  That  all  acts  and  parts  of 
acts,  so  far  as  they  conflict  with  the  provisions  of  this  Act,  are  hereby  repealed. — 
(30  Stat.,  1009,  chap.  413.) 

[1899,  Mar.  3.  Pay  of  assistant  to  chief,  Bureau  of  Supplies  and  Accounts.] 
The  officer  of  the  Pay  Corps  of  the  Navy  detailed  as  assistant  to  the  Chief  of 
the  Bureau  of  Supplies  and  Accounts  pursuant  to  the  act  of  Congress  approved 
July  twenty-seventh,  eighteen  hundred  and  ninety-four,  shall  hereafter  receive 
the  highest  pay  of  his  grade.— (30  Stat..  1038,  chap.  421.) 

1271 


June  7,  1900.  Pt.  S.  STATUTES  AT  LARGE. 


The  designation  of  the  ''Pay  Corps"  was 
changed  to  "Supply  Corps"  by  act  of 
July  II,  l!»lf».— (41  Stat..  147.) 

See  act  of  July  2().  1894  (28  Stat..  132),  which 


is  the  act  referred  to  herein  as  the  act 
approA^ed  "July  twenty-seventh,"  1894; 
see  also  note  to  section  421,  Revised 
Statutes. 


[1900,  Mar.  21.  Naval  Intelligence,  publications.]  That  the  Secretary  of 
the  Navy  bo,  and  is  hereby,  authorized  to  print,  in  excess  of  the  one  thousand 
copies  authorized  by  the  Act  of  January  twelfth,  eighteen  hundred  and  ninety- 
five,  such  extra  copies  of  the  publications  of  the  Office  of  Naval  Intelligence 
as  may  be  necessary  for  distribution  to  the  naval  service  and  to  meet  other 
official  demands:  Provided,  That  in  no  case  shall  the  edition  of  any  one  publi- 
cation exceed  two  thousand  copies. — (31  Stat.,  713,  Res.  No.  14.) 

See  act  of  .January  12,  1895,  section  89  (28  Stat.,  622-623). 

[1900,  Apr.  17.  Book  of  Estimates,  statement  of  employees  paid  from 
general  appropriations.]  It  shall  be  the  duty  of  the  Secretary  of  the  Navy  to 
submit  in  the  Book  of  Estimates  for  the  fiscal  year  nineteen  hundred  and  two, 
and  annually  thereafter,  under  the  respective  bureaus  and  offices  of  the  Navy 
Department,  a  statement  in  detail,  showing  the  number  of  persons  employed 
during  the  previous  fiscal  year  and  the  rate  of  compensation  of  each  under 
appropriations  for  "Increase  of  the  Navy"  or  other  general  appropriations. — 
(31  Stat.,  117,  chap.  192.) 

See  note  to  sections  429  and  430,  Revised  Statutes,  and  laws  cited  thereunder. 

[1900,  May  24.  Removal  of  charge  of  desertion.]  That  chapter  eight 
hundred  and  ninety,  volume  twenty-five,  of  the  United  States  Statutes  at 
Large,  entitled  "An  Act  to  relieve  certain  appointed  or  enlisted  men  of  the 
Navy  and  Marine  Corps  from  the  charge  of  desertion,"  approved  August  four- 
teenth, eighteen  hundred  and  eighty-eight,  be,  and  the  same  is  hereby,  revived 
and  reenacted. 

Sec.  2.  That  section  five  of  the  said  Act  be,  and  is  hereby,  so  amended  as 
to  remove  the  limitation  of  time  within  which  applications  for  relief  may  be 
received  and  acted  upon  under  the  provisions  of  said  Act. — (31  Stat.,  183, 
chap.  550.) 

See  act  of  August  14, 1888  (25  Stat.,  442-443). 

[1900,  June  6.  Accounting  officers,  not  to  deduct  attorneys'  fees.]  That  in 
the  settlement  of  claims  of  officers,  soldiers,  sailors,  and  marines,  or  their 
representatives,  and  all  other  claims  for  pay  and  allowances  within  the  juris- 
diction of  the  Auditor  for  the  War  Department  or  the  Auditor  for  the  Navy 
Department,  presented  and  filed  hereafter  in  which  it  is  the  present  practice  to 
make  deductions  of  attorneys'  fees  from  the  amount  found  due,  no  deductions 
of  fees  for  attorneys  or  agents  shall  hereafter  be  made,  but  the  draft,  check,  or 
warrant  for  the  full  amount  found  due  shall  be  delivered  to  the  payee  in  person 
or  sent  to  his  bona  fide  post-office  address  (residence  or  place  of  business). — 
(31  Stat.,  637,  chap.  791.) 

See  note  to  section  236,  Revised  Statutes,  on  general  subject  of  accounts. 

[1900,  June  7.  Mileage  or  actual  expenses,  officers  of  the  Navy.]  That  in 
lieu  of  traveling  expenses  and  all  allowances  whatsoever  connected  therewith, 
including  transportation  of  baggage,  officers  of  the  Navy  traveling  from  point 
to  point  within  the  United  States  under  orders  shall  hereafter  receive  mileage 

1272 


Pt.  .3.  STATUTES  AT  LARGE.  Mar.  2,  1901. 

at  the  rate  of  eight  cents  per  mile,  distance  to  be  computed  by  the  shortest 
usually  traveled  route;  but  in  cases  where  orders  are  given  for  travel  to  be 
jjerformed  repeatedly  between  two  or  more  places  in  the  same  vicinity  the 
Secretary  of  the  Navy  may,  in  his  discretion,  direct  that  actual  and  necessary 
expenses  only  be  allowed.  Actual  expenses  only  shall  be  paid  for  travel  under 
orders  outside  the  limits  of  the  United  States  in  North  America. —  (31  Stat., 
685,  chap.  859.) 

See  notes  to  sections  1566  and  1612,  Revised  Statutes;  and  see  acts  of  March  3,  1901  (31 
Stat.,  1029),  and  July  1,  1902  (32  Stat.,  663). 

[1900,  June  7.  Naval  hospital  fund.]  That  from  and  after  July  first,  nine- 
teen hundred,  all  forfeitures  on  account  of  desertion  shall  be  passed  to  the  credit 
of  the  naval  hospital  fund. —  (31  Stat.,  697,  chap.  859.) 

See  sections  4807-4810,  Revised  Statutes,  and  notes  thereto. 

[1900,  June  7.  Rank  of  assistant  surgeons.]  Assistant  surgeons  shall  rank 
with  assistant  surgeons  in  the  Army. —  (31  Stat.,  697,  chap.  859.) 

See  section  1474,  Revised  Statutes,  and  note  thereto. 

[1900,  June  7.  Pay  of  commissioned  officers  not  reduced.]  Section  thirteen 
of  the  act  approved  March  third,  eighteen  hundred  and  ninety-nine,  entitled 
"An  act  to  reorganize  and  increase  the  efficiency  of  the  personnel  of  the  Navy 
and  Marine  Corps  of  the  United  States,"  is  hereby  so  amended  as  to  provide 
that  nothing  therein  contained  shall  operate  to  reduce  the  pay  which,  but  for  the 
passage  of  said  act,  would  have  been  received  by  any  commissioned  officer  at 
the  time  of  its  passage  or  thereafter. — ^(31  Stat.,  697,  chap.  859.) 

See  note  to  section  1556,  Revised  Statutes,  and  see  act  of  March  3,  1899,  section  13  (30  Stat., 
1007). 

[1901,  Feb.  2,  sec.  41.  Wearing  of  badges,  military  societies.]  That  the 
distinctive  badges  adopted  by  military  societies  of  men  "who  served  in  the 
armies  and  navies  of  the  United  States  during  the  Spanish-American  war  and 
the  incident  insurrection  in  the  Philippines"  may  be  worn  upon  all  occasions 
of  ceremony  by  officers  and  men  of  the  Army  and  Navy  of  the  United  States 
who  are  members  of  said  organizations  in  their  own  right. —  (31  Stat.,  758, 
chap.  192.) 

See  note  to  section  1407,  Re\'ised  Statutes. 

[1901,  Mar.  2.  Departmental  publications,  furnished  Library  of  Congress.] 
That  of  the  publications  described  in  this  section  the  number  of  copies  which 
shall  be  printed  and  distributed  by  the  Public  Printer  to  the  Library  of  Congress 
for  its  own  use  and  for  international  exchange  in  lieu  of  the  number  now  pro- 
vided by  law  shall  be  sixty-two,  except  as  such  number  shall  be  enlarged  to 
not  exceeding  one  hundred  copies  by  request  of  the  Librarian  of  Congress,  to 
wit:  The  House  documents  and  reports,  bound;  the  Senate  documents  and 
reports,  bound;  the  House  Journals,  bound;  the  Senate  Journals,  bound;  all 
other  documents  bearing  a  Congressional  number  and  all  documents  not  bearing 
a  Congressional  number  printed  by  order  of  either  House  of  Congress,  or  by 
order  of  any  Department,  bureau,  commission,  or  officer  of  the  Government, 
except  confidential  matter,  blank  forms,  and  circular  letters  not  of  a  public 
character;  the  Revised  Statutes,  bound;  the  Statutes  at  Large,  bound;  the 

1273 


Mar.  3,  1901.  Pt.  3.  STATUTES  AT  LARGE. 

Congressional  Record,  bound;  the  Official  Register  of  the  United  States, 
bound.— (31  Stat.,  1464,  Res.  No.  16.) 

Sec.  2.  That  in  addition  to  the  foregoing  the  Public  Printer  shall  supply 
to  the  Library  of  Congress,  for  its  own  use  two  copies  of  each  of  the  above- 
described  publications,  unbound,  as  published;  five  copies  of  all  bills  and 
resolutions;  ten  copies  of  the  daily  Congressional  Record;  and  two  copies  of  all 
documents  printed  for  the  use  of  Congressional  committees  not  of  a  confidential 
cliaracter.— (31  Stat.,  1464,  Res.  No.  16.) 

Sec.  3.  That  of  any  publication  printed  at  the  Government  expense  by 
direction  of  any  Department,  commission,  bureau,  or  officer  of  the  Govern- 
ment elsewhere  than  at  the  Government  Printing  Office  there  shall  be  supplied 
to  the  Library  of  Congress  for  its  own  use  and  for  international  exchange 
sixty-two  copies,  except  as  such  number  shall  be  enlarged  to  not  exceeding 
one  hundred  copies  by  request  of  the  Joint  Committee  on  the  Library. —  (31 
Stat.,  1465,  Res.  No.  16.) 

See  act  of  January  12,  1895,  section  58  (28  Stat.,  610). 

[1901,  Mar.  3,  sec.  5.  Estimates,  time  for  submitting.]     That  hereafter  it 

shall  be  the  duty  of  the  heads  of  the  several  Executive  Departments,  and  of 

other  officers  authorized  or  required  to  make  estimates,   to  furnish  to  the 

Secretary  of  the  Treasury,  on  or  before  the  fifteenth  day  of  October  of  each 

year,  their  annual  estimates  for  the  public  service,  to  be  included  in  the  Book 

of  Estimates  prepared  by  law  under  his  direction,  and  in  case  of  failure  to 

furnish  estimates  as  herein  required  it  shall  be  the  duty  of  the  Secretary  of 

the  Treasury  to  cause  to  be  prepared  in  the  Treasury  Department,  on  or  before 

the  first  day  of  November  of  each  year,  estimates  for  such  appropriations  as 

in  his  judgment  shall  be  requisite  in  every  such  case,  which  estimates  shall  be 

included  in  the  Book  of  Estimates  prepared  by  law  under  his  direction  for 

the  consideration  of  Congress. —  (31  Stat.,  1009,  chap.  830.) 

See  act  of  March  3,  1875,  section  3  (18  Stat.,  and  3666.  Re\dsed  Statutes,  and  laws  noted 

370);  and  see,  generally,  sections  429,  430,  thereunder. 

[1901,  Mar.  3.  Mileage  and  traveling  expenses;  naval  officers.]     That  in 

lieu  of  traveling  expenses  and  all  allowances  whatsoever  connected  therewith, 

including  transportation  of  baggage,  officers  of  the  Navy  traveling  from  point 

to  point  within  the  United  States  under  orders  shall  hereafter  receive  mileage 

at  the  rate  of  eight  cents  per  mile,  distance  to  be  computed  by  the  shortest 

usually  traveled  route;  but  in  cases  where  orders  are  given  for  travel  to  be 

performed  repeatedly  between  two  or  more  places  in  the  same  vicinity  the 

Secretary  of  the  Navy  may,  in  his  discretion,  direct  that  actual  and  necessary 

expenses  only  be  allowed.     Actual  expenses  only  shall  be  paid  for  travel  under 

orders  outside  the  limits  of  the  United  States  in  North  America     *     *     *. — 

(31  Stat.,  1029,  chap.  831.) 

See  note  to  section  1566,  Re\'i8ed  Statutes,  and  see  acts  of  Jime  7,  1900  (31  Stat.,  685),  and 
July  1,  1902  (32  Stat.,  663). 

[1901,  Mar.  3.  Transportation,  enlisted  men,  Navy,  discharged  on  medical 
survey  and  expiration  of  enlistment.]  That  the  transportation  to  their  homes, 
if  residents  of  the  United  States,  of  enlisted  men  and  apprentices  discharged 
on  medical  survey;  and  the  transportation  to  the  place  of  enlistment,  if  resi- 
dents of  the  United  States,  of  enlisted  men  and  apprentices  discharged  on 

1274 


Pt.  3.  STATUTES  AT  LARGE.  Mar.  3,  1901. 

account  of  expiration  of  enlistment,  shall  hereafter  be  chargeable  to  the  appro- 
priation "Transportation,  recruiting,  and  contingent." — (31  Stat.,  1030, 
chap.  831.) 

See  note  to  section  1569,   Revised  Statutes,  Revised  Statutes,  and  act  of  June  3,  1916, 

under  "20.  Mileage  and  transportation  on  section  126  (39  Stat.,  217). 

discharge";  see  also  note  to  section  1566, 

[1901,  Mar.  3.  Facilities  of  Departments  allowed  students  and  others.]  That 
facilities  for  study  and  research  in  the  Government  Departments,  *  *  * 
shall  be  afforded  to  scientific  investigators  and  to  duly  qualified  individuals, 
students,  and  graduates  of  institutions  of  learning  in  the  several  States  and 
Territories,  as  well  as  in  the  District  of  Columbia,  under  such  rules  and 
restrictions  as  the  heads  of  the  Departments  and  Bureaus  mentioned  may 
prescribe.— (31  Stat.,  1039,  chap.  831.) 

See  joint  resolution  of  April  12,  1892  (27  Stat.,  395). 

[1901,  Mar.  3.  Medals  of  honor  and  gratuity,  enlisted  men.]  That  any 
enlisted  man  of  the  Navy  or  Marine  Corps  who  shall  have  distinguished  himself 
in  battle  or  displayed  extraordinary  heroism  in  the  line  of  his  profession  shall, 
upon  the  recommendation  of  his  commanding  officer,  approved  by  the  flag- 
officer  and  the  Secretary  of  the  Navy,  receive  a  gratuity  and  medal  of  honor  as 
provided  for  seamen  in  section  fourteen  hunched  and  seven  of  the  Revised 
Statutes.— (31  Stat.,  1099,  chap.  850.) 

[1901,  Mar.  3.  Quarters.]  Boatswains,  gunners,  carpenters,  sailmakers, 
warrant  machinists,  pharmacists  and  mates,  *  *  *  shall  hereafter  receive  the 
same  commutation  for  quarters  as  second  lieutenants  of  the  Marine  Corps. — 
(31  Stat.,  1107,  1108.) 

[1901,  Mar.  3.  Shore  duty  beyond  seas.]  That  officers  of  the  Navy,  and 
officers  and  enlisted  men  of  the  Marine  Corps,  who  have  been  detailed,  or  may 
hereafter  be  detailed,  for  shore  duty  in  Alaska,  the  Philippine  Islands,  Guam, 
or  elsewhere  beyond  the  continental  limits  of  the  United  States,  shall  be  con- 
sidered as  having  been  detailed  for  ''shore  duty  beyond  seas,"  and  shall  receive 
pay  accordingly,  with  such  additional  pay  as  may  be  provided  by  law  for 
service  in  island  possessions  of  the  United  States. — (31  Stat.,  1108,  chap.  852.) 

See  sections  1556,  1569,  1571,  and  1612,  Revised  Statutes,  and  notes  thereto. 

[1901,  Mar.  3.  Advancement  for  war  service;  additional  number  officers.] 
That  the  advancement  in  rank  of  officers  of  the  Navy  and  Marine  Corps,  when- 
soever made,  for  service  rendered  during  the  war  with  Spain,  pursuant,  respec- 
tively, to  the  provisions  of  sections  fifteen  hundred  and  six  and  sixteen  hundred 
and  five  of  the  Revised  Statutes,  shall  not  interfere  with  the  regular  promotion 
of  officers  otherwise  entitled  to  promotion,  but  officers  so  advanced,  by  reason 
of  war  service,  shall,  after  they  are  promoted  to  higher  grades,  be  carried  there- 
after as  additional  to  the  numbers  of  each  grade  to  which  they  may  at  any  time 
be  promoted;  and  each  such  officer  shall  hereafter  be  promoted  in  due  course, 
contemporaneously  with  and  to  take  rank  next  after  the  officer  immediately 
above  him;  and  all  advancements  made  by  reason  of  war  service  shall  be 
appropriately  so  designated  upon  the  official  Navy  list:  Provided,  however, 
That  no  promotion  shall  be  made  to  fill  a  vacancy  occasioned  by  the  promotion, 
retirement,  death,  resignation,  or  dismissal  of  any  officer  who,  at  the  time  of 

54641°— 22 81  1275 


Mar.  3.  1901.  Ft.  S.  STATUTES  AT  LARGE. 

such  promotion,  retirement,  death,  resignation,  or  dismissal,  is  an  additional 
member  of  his  grade  under  the  foregoing  provisions. — (31  Stat.,  1108,  chap.  852.) 


See  sections  1506  and  1605,  Re\'ised  Statutes, 
and  notes  thereto;  and  see  act  of  June  16, 
1906  (34  Stat.,  296).     See  also  note  to  sec- 
tion 1363,  Re\dsed  Statutes,  under  "Addi- 
tional oflicers  are  authorized,"  etc. 
Additional    numbers,    promotion    of. — 
The    practice    of    making    officers    additional 
numbers  in  their  gi"ade  is  followed  by  Congi-ess 
only  where  for  good  and  sufficient  reasons  it  is 
desired  that  such  officers  shall  not  delay  the 
promotion  of  others  who  are  their  juniors.     In 
other  words,  the  pro\ision  that  an  officer  shall 
be  an  additional  number  in  his  grade  is  not 
intended  for  his  benefit,  but  is  intended  to 
facilitate  the  promotion  of  others  below  him 
on  the  list;  and  unless  Congress  uses  language 
clearly  indicating  its  intention  that  the  oilicer 
so  made  an  additional  number  is  to  be  promoted 


at  an  earlier  date  than  he  would  otherwise  have 
been  entitled  to  promotion;  that  is  to  say,  on 
the  same  date  as  the  officer  next  above  him  on 
the  list,  he  should  be  promoted  only  from  the 
date  on  which  his  position  would  have  entitled 
him  to  promotion  had  he  not  been  made  an 
additional  number.  In  such  cases  the  addi- 
tional number  officer  is  not  promoted  either 
\vith  the  officer  next  below  him  or  with  the 
officer  next  aboA^e  him,  but  is  promoted  pre- 
cisely as  he  would  be  if  he  were  not  an  addi- 
tional number,  only  his  promotion  does  not 
operate  to  delay  the  promotion  of  junior  officers. 
It  can  make  no  difference  to  the  additional 
number  officer  how  many  junior  oflicers  may 
be  promoted  at  the  same  time;  his  promotion 
is  in  no  way  delayed  thereby.  (C.  M.  O.  6, 
1915,  p.  10,  citing  file  11130-26,  Jan.  8,  1915.) 


[1901,  Mar.  3.  Board  of  visitors,  Naval  Observatory.]  There  shall  be 
appointed  by  the  President,  by  and  \^'ith  the  advice  and  consent  of  the  Senate, 
from  persons  not  officers  of  the  United  States  a  board  of  six  visitors  to  the 
Naval  Observatory,  four  to  be  astronomers  of  high  professional  standing  and 
two  to  be  eminent  citizens  of  the  United  States.  Appointments  to  this  board 
shall  be  made  for  periods  of  three  years,  but  provision  shall  be  made  by  initial 
appointments  for  shorter  terms  so  that  two  members  shall  retire  in  each  year. 
Members  of  this  board  shall  serve  without  compensation,  but  the  Secretary  of 
the  Navy  shall  pay  the  actual  expenses  necessarily  incurred  by  members  of 
the  board  in  the  discharge  of  such  duties  as  are  assigned  to  them  by  the  Secre- 
tary of  the  Navy  or  are  otherwise  imposed  upon  them.  The  board  of  visitors 
shall  make  an  annual  visitation  to  the  Observatory  at  a  date  to  be  determined 
by  the  Secretary  of  the  Navy,  and  may  make  such  other  visitations  not  exceeding 
two  in  number  annually  by  the  full  board  or  by  a  duly  appointed  committee 
as  may  be  deemed  needful  or  expedient  by  a  majority  of  the  board.  The  board 
of  visitors  shall  report  to  the  Secretary  of  the  Navy  at  least  once  in  each  year 
the  result  of  its  examinations  of  the  Naval  Observatory  as  respects  the  condition 
of  buildings,  instruments,  and  apparatus,  and  the  efficiency  with  which  its 
scientific  work  is  prosecuted,  and  shall  also  report  as  respects  the  expenditures 
in  the  administration  of  the  Observatory.  The  board  of  visitors  shall  prepare 
and  submit  to  the  Secretary  of  the  Navy  regulations  prescribing  the  scope  of 
the  astronomical  and  other  researches  of  the  Observatory  and  the  duties  of  its 
staff  with  reference  thereto.  When  an  appointment  or  detail  is  to  be  made  to 
the  office  of  astronomical  director,  director  of  the  Nautical  Almanac,  astronomer, 
or  assistant  astronomer,  the  board  of  visitors  may  recommend  to  the  Secretary 
of  the  Navy  a  suitable  person  to  fill  such  office,  but  such  recommendation 
shall  be  determined  only  by  the  majority  vote  of  the  members  present  at  a 
regularly  called  meeting  of  the  board  held  in  the  city  of  Washington. —  (31  Stat., 
1122,  chap.  852.) 

See  note  to  section  434,  Revised  Statutes. 

[1901,  Mar.  3.  Superintendent  of  Naval  Observatory.]  The  Superintendent 
of  the  Naval  Observatory  shall  be,  until  further  legislation  by  Congress,  a  line 

1276 


Pt.  3.  STATUTES  AT  LARGE.  Mar.  3,  1901. 

officer  of  the  Navy  of  a  rank  not  below  that  of  captain. —  (31  Stat.,  1122, 
chap.  852.) 

See  section  434,  Re\ased  Statutes,  and  note  thereto. 

[1901,  Mar.  3.  Warrant  officers,  appointment  as  ensigns.]  Whenever,  in 
view  of  the  vacancies  in  the  grade  of  ensign  on  July  thirtieth  of  any  year  unfilled 
by  graduates  of  the  Naval  Academy,  the  Secretary  of  the  Navy  shall  so  recom- 
mend, the  President  may  appoint  to  that  grade,  as  of  July  thirtieth,  from  among 
the  boatswains,  gunners,  or  warrant  machinists,  not  exceeding  six  in  any  one 
calendar  year.  No  person  shall  be  so  appointed  who  is  over  thirty-five  years  of 
age;  who  has  served  less  than  six  years  as  a  warrant  officer;  who  is  not  recom- 
mended by  a  commanding  officer  under  whom  he  has  served;  nor  until  he  shall 
have  passed  such  competitive  examination  as  may  be  prescribed  by  the  Navy 
Department.— (31  Stat.,  1129,  chap.  852.) 

See  notes  to  section  1405,  Revised  Statutes,  under  "Machinists,"  and  "Ensigns  and  assist- 
ant paymasters  appointed  from  warrant  officers." 

[1901,  Mar.  3.  Classification  and  command  of  vessels.]  That  the  President 
of  the  United  States  be,  and  he  is  hereby,  authorized  to  establish,  and  from 
time  to  time  to  modify,  as  the  needs  of  the  service  may  rec|uire,  a  classification 
of  vessels  of  the  Navy,  and  to  formulate  appropriate  rules  governing  assignments 
to  command  of  vessels  and  squadrons. —  (31  Stat.,  1133,  chap.  852.) 

See  note  to  section  1529,  Revised  Statutes. 

[1901,  Mar.  3.  Military  schools,  loan  of  naval  equipment.]  That  the  Presi- 
dent be,  and  he  is  hereby,  authorized,  upon  the  application  of  the  governor  of 
any  State  having  seacoast  line  or  bordering  on  one  or  more  of  the  Great  Lakes, 
to  direct  the  Secretary  of  the  Navy  to  fm-nish  to  one  well-established  military 
school  in  that  State,  desiring  to  afford  its  cadets  instruction  in  elementary 
seamanship,  one  fully  equipped  man-of-war's  cutter  for  every  twenty-five  cadets 
in  actual  attendance,  and  such  other  equipment  as  may  be  spared  and  be  deemed 
adequate  for  instruction  in  elementary  seamanship:  Provided,  That  the  said 
school  shall  have  adequate  facilities  for  cutter  driU,  and  shall  have  in  actual 
attendance  at  least  one  hunched  and  forty  cadets  in  uniform  receiving  military 
instruction  and  quartered  in  barracks  under  military  regulation,  and  shall  have 
the  capacity  to  quarter  and  educate  at  the  same  time  one  hundred  and  fifty 
cadets:  And  'provided  further,  That  the  Secretary  of  the  Navy  shall  require  a 
bond  in  each  case,  in  double  the  value  of  the  property,  for  the  care  and  safe- 
keeping thereof  and  for  the  return  of  the  same  when  required. —  (31  Stat.,  1440, 
chap.  863;  34  Stat.,  620,  chap.  3612.) 

This  act  was  expressly  amended  and  reenacted 

to  read  as  above  l)y  act  of  June  29,  1906  (34 

Stat.,   620).    The  opening  clause  of  the 

latter  act  was  as  follows:  "That  chapter 

eight   hundred   and  sixty-three,    volume 

tliirty-one,  of  the  Statutes  at  Large,  ap- 
proved March  third,  nineteen  hundred  and 

one,  to  authorize  the  Secretary  of  the  Na\^ 

to  loan  naval  equipment  to  certain  military 

schools,  and  now  the  law  in  force,  be,  and 

the  same  is  hereby,  amended  to  read  as 

follows." 
It  was  further  amended  by  the  following  clause 

in  the  naval  appropriation  act  of  June  24, 


1910  (36  Stat..  613):  "That  the  Act  entitled 
*An  Act  to  authorize  the  Secretary  of  the 
Na^vy  to  loan  naval  equipment  to  certain 
military  schools,'  approved  March  third, 
nineteen  hundred  and  one,  be  amended  by 
striking  out  the  words  'one  hundred  and 
forty  cadets '  and  inserting  in  lieu  thereof 
the  words  'seventy-five  cadets  over  fifteen 
vears  of  age.' " 
See  also  act  of  March  4, 1911  (.36  Stat.,  1.353),  for 
the  establishment  of  marine  schools;  and 
see  act  of  June  30.  ]  906  (34  Stat. .  817),  as  to 
nautical  schools  in  the  Philippines. 


1277 


July  1,  1902. 


77,  .?.  STATUTES  AT  LARGE. 


[1902,  May  13.  Printing  of  American  Ephemeris  and  Nautical  Almanac] 
That  hereafter  the  "usual  number"  of  copies  of  the  American  Ephemeris  and 
Nautical  Almanac  shall  not  be  printed.  In  lieu  thereof  there  shall  be  printed 
and  bound  one  thousand  one  hundred  copies  of  the  same,  uniform  with  the 
ethtions  printed  for  the  Navy  Department,  as  provided  in  section  seventy-three, 
j)aray;raph  five,  of  an  Act  approved  January  twelfth,  eighteen  hundred  and 
ninety-five,  providing  for  the  public  printing,  binding,  and  distribution  of  public 
documents;  one  hundred  copies  for  the  Senate,  four  hundred  for  the  House,  and 
six  hundred  for  the  Superintendent  of  Documents  for  distribution  to  State  and 
Territorial  libraries  and  designated  depositories. —  (32  Stat.,  740,  Res.  No.  20.) 


See  act  of  January  12,  1895,  section  73  (28  Stat., 
613),   and   note  to  section   436,    Revised 


Statutes;  see  also  act  of  July  1,  1902  (32 

Stat.,  678). 


[1902,  June  28.  Blanks,  books,  filing  devices,  etc.,  procured  by  Public 
Printer.]  The  Public  Printer  is  authorized  hereafter  to  procure  and  supply, 
on  the  requisition  of  the  head  of  any  Executive  Department  or  other  Govern- 
ment establislmient,  complete  manifold  blanks,  books,  and  forms,  required  in 
duplicating  processes;  also  complete  patented  devices  mth  wliich  to  file  money- 
order  statements,  or  other  uniform  official  papers,  and  to  charge  such  supplies 
to  the  allotment  for  printing  and  binding  of  the  Department  or  Government 
establishment  requiring  the  same. —  (32  Stat.,  481,  chap.  1301.) 

See  act  of  January  12,  1895,  section  18  (28  Stat.,  603). 

[1902,  July  1.  Actual  expenses,  repeated  travel.]  That  hereafter  in  cases 
where  orders  are  given  to  officers  of  the  Navy  or  Marine  Corps  for  travel  to  be 
performed  repeatedly  between  two  or  more  places  in  such  vicinity  as  in  the 
discretion  of  the  Secretary  of  the  Navy  is  appropriate,  he  may  direct  that  actual 
and  necessary  expenses  only  be  allowed. —  (32  Stat.,  663,  chap.  1368.) 

See  notes  to  sections  1566  and  1612,  Revised  Statutes,  and  see  act  of  June  7,  1900  (31  Stat., 
685). 

[1902,  July  1.  Transit  pay,  employees  in  insular  possessions.]  The  Secre- 
tary of  the  Navy,  in  his  discretion,  is  authorized  to  pay  all  civilian  employees 
appointed  for  duty  in  the  Philippine,  Hawaiian,  and  Samoan  islands,  the  island 
of  Guam,  and  the  island  of  Porto  Rico,  from  the  date  of  their  sailing  from  the 
United  States  until  they  report  for  duty  to  the  officer  under  whom  they  are  to 
serve,  and  while  returning  to  the  United  States  by  the  most  direct  route  and 
with  due  expedition,  a  per  diem  compensation  corresponding  to  their  pay  while 
actually  employed;  and  in  cases  where  the  appointee  is  not  to  fill  an  existing" 
vacancy  his  pay  while  traveling  may  be  charged  to  the  annual  appropriation  of 
the  bureau  concerned. —  (32  Stat.,  663,  chap.  1368.) 

See  note  to  section  1545,  Revised  Statutes. 

[1902,  July  1.  Publication  of  American  Ephemeris  and  Nautical  Almanac] 

Hereafter  there  shall  be  published  of  the  American  Ephemeris  and  Nautical 

Almanac  two  thousand  five  hundred  copies,  five  hundred  of  which  shall  be  for 

the  use  of  the  Senate,  one  thousand  for  the  use  of  the  House  of  Representatives, 

and  one  thousand  for  distribution  or  sale  by  the  Navy  Department. —  (32  Stat., 

678,  chap.  1368.) 

See  act  of  January  12, 1895,  section  73  (28  Stat.,  613),  and  Joint  Resolution  of  May  13,  1902 
(32  Stat.,  740).     See  also  note  to  section  436,  Revised  Statutes. 

1278 


Pt.  3.  STATUTES  AT  LARGE.  July  1,  1902. 

[1902,  July  1.  Commuted  rations,  payment  to  messes.]  That  money  accru- 
ing from  the  rations  of  enlisted  men  commuted  for  the  benefit  of  any  mess  may 
be  paid  on  public  bills  to  the  commissary  officer  by  the  pay  officer  having  their 
accounts.— (32  Stat.,  680,  chap.  1368.) 

See  section  1585,  Revised  Statutes,  and  note  thereto. 

[1902,  July  1.  Title  of  ''naval  cadet"  changed.]  The  title  "naval  cadet" 
is  hereby  changed  to  "midshipman." — (32  Stat.,  686,  chap.  1368.) 

See  section  1512,  Revised  Statutes,  and  note  thereto. 

[1902,  July  1,  sec.  4.  Public  Health  Service,  duties  in  time  of  war.]  That 
the  President  is  authorized,  in  his  discretion,  to  utilize  the  Public  Health  and 
Marine-Hospital  Service  in  times  of  threatened  or  actual  war  to  such  extent 
and  in  such  manner  as  shall  in  his  judgment  promote  the  public  interest  without, 
however,  in  any  w4se  impairing  the  efficiency  of  the  service  for  the  purposes  for 
w^hich  the  same  was  created  and  is  maintained. —  (32  Stat.,  713,  chap.  1370.) 


The  designation  of  the  ''Public  Health  and 
Marine-Hospital  Service"  was  changed  to 
"Public  Health  Service"  by  act  of  August 
14,  1912  (37  Stat.,  309). 


See  note  to  section  1368,  Revised  Statutes, 
under  "Public  Health  Service,"  for  later 
laws  on  the  subject;  and  see  Joint  Resolu- 
tion of  July  9,  1917  (40  Stat.,  242). 


[1902,  July  1,  sec.  5.  Surgeon  General,  Navy,  to  detail  officer  on  advisory 
board.]  That  there  shall  be  an  advisory  board  for  the  hygienic  laboratory 
provided  by  the  Act  of  Congress  approved  March  third,  nineteen  hundred  and 
one,  for  consultation  with  the  Surgeon-General  of  the  Public  Health  and  Marine- 
Hospital  Service  relative  to  the  investigations  to  be  inaugurated,  and  the 
methods  of  conducting  the  same,  in  said  laboratory.  Said  board  shall  consist 
of  three  competent  experts,  to  be  detailed  from  the  Army,  the  Navy,  and  the 
Bureau  of  Animal  Industry  by  the  Surgeon-General  of  the  Army,  the  Surgeon- 
General  of  the  Navy,  and  the  Secretary  of  Agriculture,  respectively,  which  ex- 
perts, with  the  director  of  the  said  laboratory,  shall  be  ex  officio  members  of 
the  board,  and  serve  without  additional  compensation.  Five  other  members  of 
said  board  shall  be  appointed  by  the  Surgeon-General  of  the  Public  Health  and 
Marine-Hospital  Service,  with  the  approval  of  the  Secretary  of  the  Treasury, 
who  shall  be  skilled  in  laboratory  work  in  its  relation  to  the  public  health,  and 
not  in  the  regular  employment  of  the  Government  *  *  *. —  (32  Stat.,  713, 
chap.  1370.) 

See  note  to  preceding  section;  see  also  sections  419  and  1471,  Revised  Statutes,  and  notes 
thereto. 

[1902,  July  1,  sec.  4.  Surgeon  General,  Navy,  to  serve  on  board  on  licensing 
sale  of  viruses,  etc.]  That  the  Surgeon-General  of  the  Army,  the  Surgeon- 
General  of  the  Navy,  and  the  supervising  Surgeon-General  of  the  Marine-Hos- 
pital Service,  be,  and  they  are  hereby,  constituted  a  board  with  authority,  sub- 
ject to  the  approval  of  the  Secretary  of  the  Treasury,  to  promulgate  from  time 
to  time  such  rules  as  may  be  necessary  in  the  judgment  of  said  board  to  govern 
the  issue,  suspension,  and  revocation  of  licenses  for  the  maintenance  of  establish- 
ments for  the  propagation  and  preparation  of  viruses,  serums,  toxins,  antitoxins, 
and  analogous  products,  applicable  to  the  prevention  and  cure  of  diseases  of  man, 
intended  for  sale  in  the  District  of  Columbia,  or  to  be  sent,  carried,  or  brought 
for  sale  from  any  State,  Territory,  or  the  District  of  Columbia,  into  any  other 

1279 


Mar.  3.  1903.  Pt.  3.  STATUTES  AT  LARGE. 

State,  Territory,  or  the  District  of  Columbia,  or  from  the  United  States  into 
any  foreign  country,  or  from  any  foreign  country  into  the  United  States:  Pro- 
vided, That  all  licenses  issued  for  the  maintenance  of  establishments  for  the  prop- 
agation and  preparation  in  any  foreign  country  of  any  virus,  serum,  toxin,  anti- 
toxin, or  product  aforesaid,  for  sale,  barter,  or  exchange  in  the  United  States, 
shall  be  issued  upon  condition  that  the  licentiates  will  permit  the  inspection  of 
the  establislmients  where  said  articles  are  propagated  and  prepared,  in  accord- 
ance with  section  three  of  this  Act.— (32  Stat.,  729,  chap.  1378.) 

[1903,  Jan.  12.  Wearing  of  badges,  military  societies.]  That  the  distinctive 
badges  adopted  by  military  societies  of  men  who  served  in  the  armies  and  navies 
of  the  United  States  during  the  Chinese  relief  expedition  of  nineteen  hundred 
may  be  worn  upon  all  occasions  of  ceremony  by  officers  and  men  of  the  Army 
and  Navy  of  the  United  States  who  are  members  of  said  organization  in  their 
o^\n  right.— (32  Stat.,  1229,  Res.  No.  2.) 

See  note  to  section  1407,  Revised  Statutes. 

[1903,  Feb.  25.  Departmental  books,  maps,  etc.,  transferred  to  Library  of 
Congress.]  The  head  of  any  Executive  department  or  bureau  or  any  com- 
mission of  the  Government  is  hereby  authorized  from  time  to  time  to  turn  over 
to  the  Librarian  of  Congress,  for  the  use  of  the  Library  of  Congress,  any  books, 
maps,  or  other  material  in  the  library  of  the  department,  bureau,  or  commission 
no  longer  needed  for  its  use,  and  in  the  judgment  of  the  Librarian  of  Congress 
appropriate  to  the  uses  of  the  Library  of  Congress. 

Any  books  of  a  miscellaneous  character  no  longer  required  for  the  use  of 
such  department,  bureau,  or  commission,  and  not  deemed  an  advisable  addition 
to  the  Library  of  Congress,  shall,  if  appropriate  to  the  uses  of  the  Free  Public 
Library  of  the  District  of  Columbia,  be  turned  over  to  that  library  for  general  use 
as  a  part  thereof. — (32  Stat.,  865,  chap.  755.) 
See  section  418,  Revised  Statutes,  and  note  thereto. 

[1903,  Feb.  25.  Civilian  assistant,  Bureau  of  Supplies  and  Accounts.] 
Bureau  of  Supplies  and  Accounts:  For  a  civilian  assistant,  who  shall  per- 
form the  duties  of  chief  clerk,  and  in  case  of  the  death,  resignation,  sickness, 
or  absence  of  both  the  Paymaster-General  of  the  Navy  and  liis  assistant,  now 
provided  for  by  law,  unless  otherwise  directed  by  the  President,  as  provided 
by  section  one  hundred  and  seventy-nine.  Revised  Statutes,  such  civilian 
assistant  shall  become  the  acting  chief  of  the  Bureau  *  *  *. —  (32  Stat., 
890,  chap.  755.) 

See  acts  of  July  26,  1894  (28  Stat.,  132),  and  March  3,  1899  (30  Stat.,  1038). 

[1903,  Mar.  3.  Clothing  and  small-stores  fund.]  For  purchase  of  clothing 
and  small  stores  for  issUe  to  the  Naval  service,  the  present  fund  being  inade- 
quate to  meet  the  requirements  of  the  service  at  this  time;  to  be  added  to  the 
"clothing  and  small-stores  fund,"  one  million  dollars. — (32  Stat.^  1191,  chap. 
1010.) 

See  note  to  section  3689,  Revised  Statutes. 

[1903,  Mar.  3.  Warrant  officers,  appointment  as  ensigns.]  Hereafter  in  each 
calendar  year  there  may,  under  the  restrictions  imposed  by  existing  law,  be 

1280 


Pt.  3.  STATUTES  AT  LARGE. 


Mar.  28,  1904. 


appointed  from  the  boatswains,  gunners,  and  warrant  machinists  of  the  Navy 
(32  Stat.,  1197,  chap.  1010.) 


twelve  ensigns 

See  notea  to  section  1405,   Revised   Statutes, 
under  "Machinists,"    and    "Ensigns  and 


assistant  paymasters  appointed  from  war- 
rant officers. ' ' 


[1903,  Mar.  3.  Punishment  for  hazing.]  That  the  superintendent  of  the 
Naval  Academy  shall  make  such  rules,  to  be  approved  by  the  Secretary  of  the 
Navy,  as  will  effectually  prevent  the  practice  of  hazing;  and  any  cadet  found 
guilty  of  participating  in  or  encouraging  or  countenancing  such  practice  shall 
be  summarily  expelled  from  the  Academy,  and  shall  not  thereafter  be  reap- 
pointed to  the  Corps  of  Cadets  or  be  eligible  for  appointment  as  a  commissioned 
officer  in  the  Army  or  Navy  or  Marine  Corps  until  two  years  after  the  graduation 
of  the  class  of  which  he  was  a  member. — (32  Stat.,  1198,  chap.  1010.) 

See  notes  to  section  1519,  Revised  Statutes,  for  104-105),  for  partial  repeal  of  this  enact- 
later  laws  relating  to  hazing  and  the  court-  ment. 
martial  of  midshipmen.  See  note  to  section  1512,  Revised  Statutes,  as 

See  act  of  April  9,  1906,  section  2  (34  Stat.,  to  title  of  students  at  the  Naval  Academy. 

[1903,  Mar.  3.   Midshipman  from  Porto  Rico.]     That  hereafter  there  shall 

be  at  the  Naval  Academy  one  midshipman  from  Porto  Rico,  who  shall  be  a 

native  of  said  island,  and  whose  appointment  shall  be  made  by  the  President 

on  the  recommendation  of  the  governor  of  Porto  Rico. — (32  Stat.,  1198,  chap. 

1010.) 

See  note  to  section  1513,  Revised  Statutes,  under  "Midshipmen  appointed  from  Porto 
Rico." 

[1904,  Mar.  18.  Civilian  employees,  lump  sum  appropriations.]  On  and 
after  July  first,  nineteen  hundred  and  four,  it  shall  not  be  lawful  for  the  Secre- 
tary of  the  Navy  to  employ  in  the  Navy  Department,  at  Washington,  District 
of  Columbia,  and  pay  out  of  the  appropriations  for  new  ships,  any  civilian 
expert  aids,  additional  draftsmen,  writers,  copyists,  and  model  makers,  except 
as  herein  or  as  may  hereafter  be  specifically  authorized. — (33  Stat.,  117,  chap. 
716.) 

See  note  to  section  416,  Revised  Statutes. 

[1904,  Mar.  18,  sec.  3.  Horses  and  carriages,  restrictions  on  use.]  No  part 
of  any  money  appropriated  by  this  or  any  other  Act  shall  be  available  for  paying 
expenses  of  horses  and  carriages  or  drivers  therefor  for  the  personal  use  of  any 
officer  provided  for  by  this  or  any  other  Act  other  than  the  President  of  the 
United  States,  the  heads  of  Executive  Departments,  and  the  Secretary  to  the 
President:  Provided,  That  this  provision  shall  not  apply  to  officials  outside  of 
the  District  of  Columbia  in  the  performance  of  their  public  duties.  This  para- 
graph shall  not  take  effect  until  July  first,  nineteen  hundred  and  four. — (33 
Stat.,  142,  chap.  716.) 

See  acts  of  February  3,  1905,  section  4  (33  Stat.,  687-688),  and  July  16,  1914,  section  5  (38 
Stat.,  508). 

[1904,  Mar.  28.  Reprinting  of  documents  for  sale.]  And  the  superintendent 
of  documents  is  hereby  authorized  to  order  reprinted,  from  time  to  time,  such 
public  documents  as  may  be  required  for  sale,  such  order  for  reprinting  to  be  sub- 
ject to  the  approval  of  the  Secretary  or  head  of  the  Department  in  which  such 
public  document  shall  have  originated:  Provided,  That  the  appropriation  for 
printing  and  binding  shall  be  reimbursed  for  the  cost  of  such  reprints  from  the 


1281 


Apr.  7,  1904.  Pt.  S.  STATUTES  AT  LARGE. 

moneys  received  by  the  superintendent  of  documents  from  the  sale  of  public 

documents. — (33  Stat.,  584,  Res.  No.  11.) 

See  act  of  January  12,  1895,  sections  42,52,  61,  and  G7  (28  Stat.,  607-612),  as  to  sale  of  public 
documents. 

[1904,  Apr.  15.  Duplicate  medals,  where  originals  lost.]  That  in  any  case 
where  the  President  of  the  United  States  has  heretofore,  under  any  Act  or 
resolution  of  Congress,  caused  any  medal  to  be  made  and  presented  to  any 
officer  or  pereon  in  the  United  States  on  account  of  distinguished  or  meritorious 
services,  on  a  proper  showing  made  by  such  person  to  the  satisfaction  of  the 
President  that  such  medal  has  been  lost  or  destroyed  through  no  fault  of  the 
beneficiary,  and  that  diligent  search  has  been  made  therefor,  the  President  is 
hereby  authorized  to  cause  to  be  prepared  and  delivered  to  such  person  a  dupli- 
cate of  such  medal,  the  cost  of  which  shall  be  paid  out  of  any  money  in  the 
Treasury  not  otherwise  appropriated. — (33  Stat.,  588,  Res.  No.  23.) 

See  note  to  section  1407,  Revised  Statutes. 

[1904,  Apr.  27.  Power  plants,  consolidated  under  Bureau  of  Yards  and  Docks.] 
The  Secretary  of  the  Navy  is  liereby  authorized,  in  his  discretion,  to  consolidate 
the  several  power  plants  in  any  or  all  of  the  several  navy-yards  and  stations  at 
each  navy-yard  and  station  under  the  Bureau  of  Yards  and  Doclvs  for  the  genera- 
tion and  distribution  of  light,  heat,  and  power  for  all  the  purposes  of  the  Navy. 
To  the  above  end  all  such  plants  may  be  transferred  from  other  bureaus  to  the 
Bureau  of  Yards  and  Docks,  and  all  appropriations  heretofore  made  for  power 
houses  and  power  plants  for  bureaus  other  than  Yards  and  Doclss  are  hereby 
reappropriated  and  made  available  under  the  Bureau  of  Yards  and  Docks  for 
the  consolidations  herein  provided  for;  and  to  further  carry  out  the  purposes 
of  this  provision  there  is  hereby  appropriated  the  sum  of  three  hundred  thousand 
dollars.— (33  Stat.,  337,  chap.  1622.) 

[1904,  Apr.  27.  "Warrant  officers,  promotion  of.]  That  subject  to  the  restric- 
tions imposed  by  existing  law,  boatswains,  gunners,  and  warrant  machinists 
shall  be  eligible  for  appointment  to  the  grade  of  ensign  after  four  years'  service 
as  warrant  officers,  and  boatswains,  gunners,  carpenters,  and  sailmakers  shall 
be  eligible  for  appointment  as  chief  boatswains,  chief  gunners,  chief  carpenters, 
and  chief  sailmakers  after  six  years  from  date  of  warrant. —  (33  Stat.,  346,  chap. 
1622.) 

See  note  to  section  1405,  Revised  Statutes. 

[1904,  Apr.  27.  Retirement  of  Marine  officers.]  That  officers  of  the  IMarine 
Corps  with  creditable  records  who  served  during  the  civil  war  shall,  when  re- 
tired, be  retired  in  like  manner  and  under  the  same  conditions  as  provided  for 
officers  of  the  Navy  who  served  during  the  civil  war. — (33  Stat.,  349,  chap.  1622.) 
See  act  of  June  29,  1906  (34  Stat.,  554),  and  see  note  to  section  1622,  Revised  Statutes. 

[1904,  Apr.  27.  Mileage  books,  etc.,  payment  in  advance  of  travel.]  And  the 
Secretary  of  the  Navy  is  hereby  authorized  to  continue  to  purchase  such 
mileage  books,  commutation  tickets,  and  other  similar  transportation  tickets 
as  may  in  his  discretion  seem  necessary,  and  to  furnish  same  to  officers  and 
others  ordered  to  perform  travel  on  official  business;  and  payment  for  such 
transportation  tickets  upon  their  receipt,  in  accordance  with  commercial  usage, 
or  prior  to  the  actual  performance  of  the  travel  involved,  shall  not  be  regarded 

1282 


Ft.  3.  STATUTES  AT  LARGE.  Feb.  3.  1905. 

as  an  advance  of  public  money  within  the  meaning  of  section  thirty-six  hundred 
and  forty-eight  of  the  Revised  Statutes. — (33  Stat.,  403,  chap.  1630.) 

See  sections  1566  and  3648,  Revised  Statutes,  and  notes  thereto. 

[1904,  Apr.  27.  Naval  records,  transferred  from  other  Departments.]  All  naval 
records,  such  as  muster  and  pay  rolls,  orders,  and  reports  relating  to  the  per- 
sonnel and  operations  of  the  Navy  of  the  United  States,  from  the  beginning  of 
the  Navy  Department  to  the  war  of  the  rebellion,  eighteen  hundred  and  sixty- 
one,  including  operations  against  the  French  navy,  Tripolitan  war,  war  of  eight- 
een hundred  and  twelve,  operations  against  pirates  in  the  West  Indies,  Florida 
war,  and  the  war  with  Mexico,  now  in  any  of  the  Executive  Departments,  shall 
be  transferred  to  the  Secretary  of  the  Navy,  to  be  preserved. — (33  Stat.,  403, 
chap.  1630.) 
See  section  418,   Revised  Statutes,  and  note  Stat.,  579),  and  March  2,  1913  (37  Stat., 


thereto;  see  also  acts  of  June  29,  1906  (34 


723). 


[1904,  Apr.  28.  Transportation  of  supplies,  vessels  of  United  States,  excessive 

charges.]     That  vessels  of  the  United  States,  or  belonging  to  the  United  States, 

and  no  others,  shall  be  employed  in  the  transportation  by  sea  of  coal,  provisions, 

fodder,  or  supplies  of  any  description,  purchased  pursuant  to  law,  for  the  use 

of  the  Army  or  Navy  unless  the  President  shall  find  that  the  rates  of  freight 

charges  by  said  vessels  are  excessive  and  unreasonable,  in  which  case  contracts 

shall  be  made  under  the  law  as  it  now  exists :  Provided,  That  no  greater  charges 

be  made  by  such  vessels  for  transportation  of  articles  for  the  use  of  the  said 

Army  and  Navy  than  are  made  by  such  vessels  for  transportation  of  like  goods 

for  private  parties  or  companies. — (33  Stat.,  518-519,  chap.  1766.) 

See  acts  of  March  3,  1915  (38  Stat.,  944),  and  thereto:  see    also    section    3718,    Revised 

June  15,  1917  (40  Stat.,  211),  and  notes  Statutes. 

[1905,  Feb.  3.  Public  Health  Service,  jurisdiction  of  Treasury  Depart- 
ment.] Office  of  Sukgeon-Geneeal  of  Public  Health  axd  IVIarixe- 
HospiTAL  Service:  *  *  *  and  said  Service  shall  remain  under  the  juris- 
diction of  the  Treasury  Department  until  otherwise  hereafter  specifically 
provided  by  law.      (33  Stat.,  650-651,  chap.  297.) 


See  joint  resolution  of  July  9,  1917  (40  Stat., 
242);  see  also  acts  of  July  1,  1902,  section  4 
(32  Stat.,  713),  and  October  6,  1917  (40 
Stat.,  393);  and  see  note  to  section  1368, 
Revised  Statutes. 


The  designation  of  the  "Public  Health  and 
Marine- Hospital  Service"  was  changed  to 
"Public  Health  Service"  bv  act  of  Augiist 
14,  1912  (37  Stat.,  309). 


[1905,  Feb.  3,  sec.  4.  Vehicles,  restrictions  on  purchase  and  use.]  No  part 
of  any  money  appropriated  by  this  or  any  other  Act  shall  be  used  for  purchas- 
ing, maintaining,  driving,  or  operating  any  carriage  or  vehicle  (other  than 
those  for  the  use  of  the  President  of  the  United  States,  the  heads  of  the  Execu- 
tive Departments,  and  the  Secretary  to  the  President,  and  other  than  those 
used  for  transportation  of  property  belonging  to  or  in  the  custody  of  the 
United  States),  for  the  personal  or  official  use  of  any  officer  or  employee  of 
any  of  the  Executive  Departments  or  other  Government  establishments  at 
Washington,  District  of  Columbia,  unless  the  same  shall  be  specifically  author- 
ized by  law  or  provided  for  in  terms  by  appropriation  of  money,  and  all  such 
carriages  and  vehicles  so  procured  and  used  for  official  purposes  shall  have 
conspicuously  painted  thereon  at  all  times  the  full  name  of  the  Executive 

1283 


See  sections  177-182,  and  421,  Revised  Statutes, 
and  notes  thereto. 


Mar.  3,  1905.  Pt.  S.  STATUTES  AT  LARGE. 

Department  or  other  branch  of  the  public  service  to  which  the  same  belong 
and  in  the  service  of  which  the  same  are  used. —  (33  Stat.,  687-688,  chap.  297.) 

See  acts  of  March  18,  1904,  sec.  3  (33  Stat.,  142),  and  July  16,  1914,  section  5  (38  Stat.,  508). 

[1905,  Mar.  2.  Sale  of  armament,  sentimental  reasons.]  And  individual 
pieces  of  United  States  armament  which  are  not  needed  on  account  of  historical 
value,  and  can  be  advantageously  replaced,  may  be  sold  at  a  price  not  less 
than  their  cost  price,  when  there  exist  for  such  sale  sentimental  reasons 
adequate  in  the  judgment  of  the  Secretary  of  War  or  Secretary  of  the  Navy. — 
(33  Stat.,  841,  chap.  1307.) 

See  section  1541,  Revised  Statutes,  and  acts  of  August  5,  1882,  section  2  (22  Stat.,  296),  and 
June  30,  1890  (26  Stat.,  194). 

[1905,  Mar.  3.  Assistant  to  chief,  Bureau  of  Engineering.]  That  a  line 
officer  of  the  Navy  may  be  detailed  as  assistant  to  the  Chief  of  the  Bureau  of 
Steam  Engineering  in  the  Navy  Department,  and  that  such  officer  during 
such  detail  shall  receive  the  highest  pay  of  his  grade,  and  in  case  of  death, 
resignation,  absence,  or  sickness  of  the  Chief  of  the  Bureau  shall,  unless  other- 
wise directed  by  the  President,  as  provided  by  section  one  hundred  and 
seventy-nine  of  the  Revised  Statutes,  perform  the  duties  of  such  chief  until 
his  successor  is  appointed  or  such  absence  or  sickness  shall  cease. —  (33  Stat., 
1111,  chap.  1481.) 

The  "Bureau  of  Steam  Engineering"  was 
designated  as  "Bureau  of  Engineering"  by 
act  of  June  4,  1920  (41  Stat.,  828). 

[1905,  Mar.  3.  Eemoval  of  derelicts  at  sea.]  The  President  in  his  discretion 
may  temporarily  detail  any  vessel  or  vessels  of  the  Navy  to  remove  or  destroy 
derelicts  in  the  course  of  vessels  at  sea.  The  regulations  to  govern  the  detail 
and  service  of  said  vessels  shall  be  prescribed  by  the  Secretary  of  the  Navy 
and  approved  by  the  President. —  (33  Stat.,  1164,  chap.  1483.) 

See  joint  resolution  of  October  31,  1893  (28  Stat.,  13),  and  see  notes  to  sections  1529  and 
1536,  Revised  Statutes. 

[1905,  Mar.  3.  Printing  and  binding,  illustrations.]  That  hereater  no 
part  of  the  appropriations  made  for  printing  and  binding  shall  be  used  for 
any  illustration,  engraving,  or  photograph  in  any  document  or  report  ordered 
printed  by  Congress  unless  the  order  to  print  expressly  authorizes  the  same, 
nor  in  any  document  or  report  of  any  executive  department  or  other  Govern- 
ment establishment  until  the  head  of  the  executive  department  or  Government 
establishment  shall  certify  in  a  letter  transmitting  such  report  that  the  illus- 
tration is  necessary  and  relates  entirely  to  the  transaction  of  public  business. — 
(33  Stat.,  1213,  chap.  1483.) 

See  act  of  January  12,  1895,  section  94  (28  Stat.,  623). 

[1905,  Mar.  3.  Printing  for  Departments,  authority  of  Congress  required.] 
Hereafter  no  book  or  document  not  having  to  do  with  the  ordinary  business 
transactions  of  the  Executive  Departments  shall  be  printed  on  the  requisition 
of  any  Executive  Department  or  unless  the  same  shall  have  been  expressly 
authorized  by  Congress. — (33  Stat.,  1249,  chap.  1484.) 

See  act  of  January  12,  1895,  sections  86  and  94  (28  Stat.,  622,  623). 

1284 


Pt.  3.  STATUTES  AT  LARGE.  Mar.  30,  1906. 

[1906,  Mar.  30.  Printing  and  binding,  Departmental  reports,  etc.,  appro- 
priations chargeable ;  apportionment  of  allotments.]  That  hereafter,  in  the 
printing  and  binding  of  documents  or  reports  emanating  from  the  Executive 
Departments,  bureaus,  and  independent  offices  of  the  Government,  the  cost  of 
which  is  now  charged  to  the  allotment  for  printing  and  binding  for  Congress, 
or  to  appropriations  or  allotments  of  appropriations  other  than  those  made  to 
the  Executive  Departments,  bm-eaus,  or  independent  offices  of  the  Govern- 
ment, the  cost  of  illustrations,  composition,  stereotyping,  and  other  work 
involved  in  the  actual  preparation  for  printing,  apart  from  the  creation  of 
manuscript,  shall  be  charged  to  the  appropriation  or  allotment  of  appropriation 
for  the  printing  and  binding  of  the  Department,  bureau,  or  independent  office 
of  the  Government  in  which  such  documents  or  reports  originate;  the  balance 
of  cost  shall  be  charged  to  the  allotment  for  printing  and  binding  for  Congress, 
and  to  the  appropriation  or  allotment  of  appropriation  of  the  Executive  Depart- 
ment, bureau,  or  independent  office  of  the  Government,  in  proportion  to  the 
niunber  delivered  to  each;  the  cost  of  any  copies  of  such  documents  or  reports 
distributed  other\\*ise  than  thi'ough  Congress,  or  the  Executive  Departments, 
bureaus,  and  independent  offices  of  the  Government,  if  such  there  be,  shall  be 
charged  as  heretofore :  Provided^  That  on  or  before  the  first  day  of  December  in 
each  fiscal  year  each  Executive  Department,  bureau,  or  independent  office  of 
the  Government  to  which  an  appropriation  or  allotment  of  appropriation  for 
printing  and  binding  is  made,  shall  obtain  from  the  Public  Printer  an  estimate 
of  the  probable  cost  of  all  publications  of  such  Department,  bureau,  or  inde- 
pendent office  now  required  by  law  to  be  printed,  and  so  much  thereof  as  would, 
under  the  terms  of  this  resolution,  be  charged  to  the  appropriation  or  allotment 
of  appropriation  of  the  Department,  bureau,  or  independent  office  of  the  Gov- 
ernment in  which  such  publications  originate,  shall  thereupon  be  set  aside  to  be 
applied  only  to  the  printing  and  binding  of  such  documents  and  reports,  and 
shall  not  be  available  for  any  other  purpose  until  all  of  such  allotment  of  cost 
on  account  of  such  documents  and  reports  shall  have  been  fully  paid. — (34  Stat., 
825-826,  Res.  No.  13.) 

See  act  of  January  12,  1895,  section  93  (28  Stat.,  623). 

[1906,  Mar.  30.  Printing  of  documents  in  two  or  more  editions.]  That  the 
Joint  Committee  on  Printing  is  herebv  authorized  and  directed  to  establish 
rules  and  regulations,  from  time  to  time,  which  shall  be  observed  by  the  Public 
Printer,  whereby  public  documents  and  reports  printed  for  Congress,  or  either 
House  thereof,  may  be  printed  in  two  or  more  editions,  instead  of  one,  to  meet 
the  public  requirements:  Provided,  That  in  no  case  shall  the  aggregate  of  said 
ecfitions  exceed  the  number  of  copies  now  authorized  or  which  may  hereafter  be 
authorized :  And  provided  further,  That  the  number  of  copies  of  any  public 
document  or  report  now  authorized  to  be  printed  or  which  may  hereafter  be 
authorized  to  be  printed  for  any  of  the  Executive  Departments,  or  bureaus  or 
branches  thereof,  or  independent  offices  of  the  Government  may  be  supplied 
in  two  or  more  editions,  instead  of  one,  upon  a  requisition  on  the  Pubfic  Printer 
by  the  official  head  of  such  Department  or  independent  office,  but  in  no  case 
shall  the  aggregate  of  said  editions  exceed  the  number  of  copies  now  authorized, 
or  which  may  hereafter  be  authorized:    Provided  further,  That  nothing  herein 

1285 


Apr.  9,  1906.  Pt.  S.  STATUTES  AT  LARGE. 

shall  operate  to  obstruct  the  printing  of  the  full  number  of  any  document  or 
report,  or  the  allotment  of  the  full  quota  to  Senators  and  Representatives,  as 
now  authorized,  or  which  may  hereafter  be  authorized,  when  a  legitimate 
demand  for  the  full  complement  is  known  to  exist. — (34  Stat.,  826,  Res.  No.  14.) 
Sec  note  to  act  of  January  12,  1895,  section  89  (28  Stat.,  622-623). 

[1906,  Apr.  9.  Dismissal  of  midshipmen;  board  of  inquiry.]  That  it  shall  be 
the  duty  of  the  Superintendent  of  the  United  States  Naval  Academy,  whenever 
he  shall  believe  the  continued  presence  of  any  midshipman  at  the  said  academy 
to  be  contrary  to  the  best  interests  of  the  service,  to  report  in  writing  such  fact, 
with  a  fuU  statement  of  the  facts  upon  which  are  based  his  reasons  for  such 
belief,  to  the  Secretary  of  the  Navy,  who,  if  after  due  consideration  of  the  said 
report  he  shall  deem  the  superintendent's  said  belief  reasonable  and  well  founded, 
shall  cause  a  copy  of  the  said  report  to  be  served  upon  the  said  midshipman  and 
require  the  said  midshipman  to  show  cause,  in  writing  and  within  such  time  as 
the  said  Secretary  shall  deem  reasonable,  why  he  should  not  be  dismissed  from 
the  said  academy;  and  after  due  consideration  of  any  cause  so  shown  the  said 
Secretary  may,  in  his  discretion,  but  with  the  written  approval  of  the  President, 
dismiss  such  midshipman  from  the  said  academy.  And  the  truth  of  any  issue 
of  fact  so  raised,  except  upon  the  record  of  demerit,  shall  be  determined  by  a 
board  of  inquiry  convened  by  the  Secretary  of  the  Navy  under  the  rules  and 
regulations  for  the  government  of  the  Navy. — (34  Stat.,  104,  chap.  1370.) 


Courts  of  inquiry  are  regulated  by  section  1624, 
Revised  Statutes,  articles  55-60. 


See  notes  to  section  1519,  Revised  Statutes, 
under  "Suspension  of  midshipman  with- 
out pay,"  "Dismissal  without  court-mar- 
tial," and  "Effect  of  dismissal." 

[1906,  Apr.  9,  sec.  2.  Hazing,  dismissal  without  court-martial;  exception; 
prior  statutes  amended.]  That  so  much  of  the  acts  approved  June  twenty-thirtl, 
eighteen  hundred  and  seventy-four,  and  March  third,  nineteen  hundred  and 
three,  as  requires  the  Superintendent  of  the  United  States  Naval  Academy  to 
convene  a  court-martial  in  all  cases  when  it  shall  come  to  the  knowledge  of  the 
said  superintendent  that  any  midshipman  has  been  guilty  of  the  offense  com- 
monly kno^vn  as  '^hazing,"  and  declares  the  finding  of  a  court-martial  so  con- 
vened, when  approved  by  the  said  superintendent,  final,  and  directs  that  any 
midshipman  found  guilty  by  such  court-martial  shall  be  summarily  dismissed 
from  the  said  academy,  and  also  all  other  Acts  or  parts  of  Acts  inconsistent  with 
the  present  Act  are  hereby  repealed,  and  that  the  offense  known  as  '^ hazing" 
may  hereafter  be  proceeded  against,  dealt  with,  and  punished  as  offenses  against 
good  order  and  discipline  and  for  violation  and  breaches  of  the  rules  of  said 
academy.  But  no  midshipman  shall  be  dismissed  for  a  single  act  of  hazing 
except  under  the  provisions  of  section  three  of  this  Act, — (34  Stat.,  104,  chap. 
1370.) 


As  to  definition  of  hazing,  see  section  4  of  this 
act  set  forth  below,  and  note  to  section  1519, 
Revised  Statutes,  under  "Court-martial  of 
midshipmen  for  hazing;"  as  to  interpreta- 
tion of  "a  single  act  of  hazing,"  also  see 


See  acts  of  .Tune  23,  1874  (18  Stat.,  203-204), 
and  March  3,  1903  (32  Stat.,  1198).  As  to 
partial  repeal  of  said  acts  by  this  section, 
see  note  to  section  1519,  Revised  Statutes, 
under  "Dismissal  without  court-martial." 

note  last  cited. 

[1906,  Apr.  9,  sec.  3.  Court-martial  for  hazing;  punishment;  reviewing 
authority.]  That  the  Superintendent  of  the  United  States  Naval  Academy 
may,  in  his  discretion  and  with  the  approval  of  the  Secretary  of  the  Navy, 

1286 


PL  3.  STATUTES  AT  LARGE.  Apr.  9,  1906. 

cause  any  midshipman  in  the  said  academy  to  be  tried  by  court-martial  for  the 
offense  of  hazing,  as  provided  by  the  Act  approved  June  twenty-thhd,  eighteen 
hunched  and  seventy-four,  and  such  court-martial,  upon  conviction,  may 
sentence  such  midshipman  to  any  punishment  authorized  by  the  said  Act  or 
by  the  Act  approved  March  third,  nineteen  hundred  and  three,  or  authorized 
for  any  violation  or  breach  of  the  rules  of  the  said  academy  by  the  said  rules, 
or,  in  cases  of  brutal  or  cruel  hazing  may,  in  addition  to  dismissal,  sentence  such 
midshipman  to  imprisoimient  for  a  period  not  exceeding  one  year:  Provided, 
That  such  midshipman  shall  not  be  confined  in  a  military  or  naval  prison  or 
elsewhere  with  men  who  have  been  convicted  of  crimes  or  misdemeanors;  and 
such  finding  and  sentence  shall  be  subject  to  review  by  the  convening  authority 
and  by  the  Secretary  of  the  Navy,  as  in  the  cases  of  other  courts-martial. — 
(34  Stat.,  104-105,  chap.  1370.) 

See  acts  of  June  23,  1874  (18  Stat.,  203-204),       Not  to  be  dismissed  for  single  act  of  hazing 

and  March  3,  1903  (32  Stat.,  1198),  as  modi-  except  by  sentence  of  court-martial.     See 

tied  by  section  2  of  this  act,  set  forth  above.  section  2  of  this  act,  set  forth  above,  and 

Seealsoactof  March  2,  1895  (28  Stat.,  838),  note  to  section   1519,    Revised    Statutes, 

and  note  to  section  1519,  Revised  Statutes.  under  "Dismissal  without  court-martial," 

See  act  of  February  16, 1909,  section  9  (35  Stat.,  and    "Court-martial    of    midshiimien    for 

621),  and  reference  thereunder,  as  to  action  hazing."    See  section  6   of  this  act,   set 

by  Secretary  of  the  Navy  on  proceedings  forth  below,  as  to  waiver  of  com't-martial 

and  sentences  of  courts-martial.  in  certain  cases. 

[1906,  Apr.  9,  sec.  4.  "Hazing"  defined.]  That  the  offense  of  "hazing,"  as 
mentioned  in  this  Act,  shall  consist  of  any  unauthorized  assumption  of  authority 
by  one  midshipman  over  another  midshipman  w^hereby  the  last-mentioned 
midshipman  shall  or  may  suffer  or  be  exposed  to  suffer  any  cruelty,  indignity, 
humiliation,  hardship,  or  oppression,  or  the  deprivation  or  abridgement  of 
any  right,  privilege,  or  advantage  to  which  he  shall  be  legally  entitled. — (34 
Stat.,  105,  chap.  1370.) 

See  note  to  section  1519,  Re\T-sed  Statutes,  under  "Court-martial  of  midshipmen  for  hazing." 

[1906,  Apr.  9,  sec.  5.  Punishment  of  naval  officers  and  civilian  instructors 
for  failing  to  report  offenses ;  dismissal  mandatory.]  That  it  shall  be  the  duty 
of  every  professor,  assistant  professor,  academic  officer,  or  any  cadet  officer  or 
cadet  petty  officer,  or  instructor,  as  well  as  every  other  officer  stationed  at 
the  United  States  Naval  Academy,  to  promptly  report  to  the  superintendent 
thereof  any  fact  which  comes  to  his  attention  tending  to  indicate  any  violation 
by  a  midshipman  or  midshipmen  of  any  of  the  provisions  of  this  Act  or  any 
violation  of  the  regulations  of  the  said  academy.  Any  naval  officer  attached 
to  the  academy  who  shall  fail  to  make  such  report  as  provided  in  this  section 
shall  be  tried  by  court-martial  for  neglect  of  duty  and  if  convicted  he  shall  be 
dismissed  from  the  service.  Any  civilian  instructor  attached  to  the  academy 
who  shall  fail  to  make  such  report  as  provided  in  this  section  shall  be  dismissed 
by  the  superintendent  of  the  academy  upon  the  approval  of  the  Secretary  of 
the  Navy.— (34  Stat.,  105,  chap.  1370.) 

[1906,  Apr.  9,  sec.  6.  Waiver  of  court-martial  in  certain  cases.]  That  this 
Act  shall  take  effect  from  the  date  of  its  approval,  but  no  midshipman  now 
connected  with  the  United  States  Naval  Academy  shall,  by  reason  of  its  enact- 
ment, be  punished  for  any  offense  heretofore  committed  otherwise  than  in 
pursuance  of  the  sentence  of  a  court-martial  (if,  by  existing  law,  such  sentence 
would  be  now  necessary  for  such  punishment)  or  punished  more  severely  than 

1287 


June  12,  1906.  Pt.  3.  STATUTES  AT  LARGE. 

is  now  l)y  law  allowed  for  any  offense  heretofore  committed:  Provided,  That 
any  midshipman  now  in  said  Naval  Academy  may  waive  his  right  to  trial  by 
court-martial  under  existing  law  for  any  offense  of  hazing  heretofore  com- 
mitted and  may  accept  punishment  under  the  provisions  of  section  two  of  this 
Act.— (34  Stat.,  105,  chap.  1370.) 

[1906,  June  8.  Preservation  of  historic  monuments,  etc.,  on  public  lands.] 
That  any  person  who  shall  appropriate,  excavate,  injure,  or  destroy  any  historic 
or  prehistoric  ruin  or  monument,  or  any  object  of  antiquity,  situated  on  lands 
owned  or  controlled  by  the  Government  of  the  United  States,  without  the 
permission  of  the  Secretary  of  the  Department  of  the  Government  having 
jurisdiction  over  the  lands  on  which  said  antiquities  are  situated,  shall,  upon 
conviction,  be  fined  in  a  sum  of  not  more  than  five  hundred  dollars  or  be  impris- 
oned for  a  period  of  not  more  than  ninety  days,  or  shall  suffer  both  fine  and 
imprisonment,  in  the  discretion  of  the  court. 

Sec.  2.  That  the  President  of  the  United  States  is  hereby  authorized,  in 
his  discretion,  to  declare  by  pubUc  proclamation  historic  landmarks,  historic 
and  prehistoric  structures,  and  other  objects  of  historic  or  scientific  interest 
that  are  situated  upon  the  lands  owned  or  controlled  by  the  Government  of 
the  United  States  to  be  national  monuments,  and  may  reserve  as  a  part  thereof 
parcels  of  land,  the  limits  of  which  in  all  cases  shall  be  confined  to  the  smallest 
area  compatible  with  the  proper  care  and  management  of  the  objects  to  be 
protected:  Provided,  That  when  such  objects  are  situated  upon  a  tract  covered 
by  a  bona  fide  unperfected  claim  or  held  in  private  ownership,  the  tract,  or 
so  much  thereof  as  may  be  necessary  for  the  proper  care  and  management  of 
the  object,  may  be  relinquished  to  the  Government,  and  the  Secretary  of  the 
Interior  is  hereby  authorized  to  accept  the  relinquishment  of  such  tracts  in 
behalf  of  the  Government  of  the  United  States. 

Sec.  3.  That  permits  for  the  examination  of  ruins,  the  excavation  of 
archaeological  sites,  and  the  gathering  of  objects  of  antiquity  upon  the  lands 
under  their  respective  jurisdictions  may  be  granted  by  the  Secretaries  of  the 
Interior,  Agriculture,  and  War  to  institutions  which  they  may  deem  properly 
qualified  to  conduct  such  examination,  excavation,  or  gathering,  subject  to 
such  rules  and  regulations  as  they  may  prescribe:  Provided,  That  the  examina- 
tions, excavations,  and  gatherings  are  undertaken  for  the  benefit  of  reputable 
museums,  universities,  colleges,  or  other  recognized  scientific  or  educational 
institutions,  with  a  view  to  increasing  the  knowledge  of  such  objects,  and  that 
the  gatherings  shall  be  made  for  permanent  preservation  in  public  museums. 

Sec.  4.  That  the  Secretaries  of  the  Departments  aforesaid  shall  make  and 
publish  from  time  to  time  uniform  rules  and  regulations  for  the  purpose  of 
carrying  out  the  provisions  of  this  Act. —  (34  Stat.,  225,  chap.  3060.) 

[1906,  June  12.  Contracts  or  purchases  in  excess  of  appropriations.]  That 
no  contract  or  purchase  on  behalf  of  the  United  States  shall  be  made,  unless  the 
same  is  authorized  by  law  or  is  under  an  appropriation  adequate  to  its  fulfill- 
ment, except  in  the  War  and  Navy  Departments,  for  clothing,  subsistence, 
forage,  fuel,  quarters,  transportation,  or  medical  and  hospital  supplies,  which, 
however,  shall  not  exceed  the  necessities  of  the  current  year. — -(34  Stat.,  255, 
chap.  3078.) 

See  section  3732,  Re\T.sed  Statutes,  and  note  thereto. 

1288 


PL  3.  STATUTES  AT  LARGE.  June  20,  1906. 

[1906,  June  14.  Aliens  fishing  in  Alaskan  waters;  seizures  and  arrests  by 
naval  officers.]  Sec.  4.  That  the  collector  of  customs  of  the  district  of  Alaska 
is  hereby  authorized  to  search  and  seize  every  foreign  vessel  and  arrest  every 
person  violating  any  provision  of  this  Act  or  any  regulation  made  thereunder, 
and  the  Secretary  of  Commerce  and  Labor  shall  have  power  to  authorize 
officers  of  the  Navy  and  of  the  Revenue-Cutter  Service  and  agents  of  the 
Department  of  Commerce  and  Labor  to  likewise  make  such  searches,  seizures, 
and  arrests.  If  any  foreign  vessel  shall  be  found  within  the  waters  to  which 
this  Act  applies,  having  on  board  fresh  or  cured  fish  and  apparatus  or  imple- 
ments suitable  for  killing  or  taking  fish,  it  shall  be  presumed  that  the  vessel 
and  apparatus  were  used  in  violation  of  this  Act  until  it  is  other^\'ise  sufficiently 
proved.  And  every  vessel,  its  tackle,  apparatus,  or  implements  so  seized  shall 
be  given  into  the  custody  of  the  United  States  marshal  of  either  of  the  districts 
mentioned  in  section  three  of  this  Act,  and  shall  be  held  by  him  subject  to  the 
proceedings  provided  for  in  section  two  of  this  Act.  The  facts  in  connection 
with  such  seizure  shall  be  at  once  reported  to  the  United  States  district  attorney 
for  the  district  to  which  the  vessel  so  seized  shall  be  taken,  whose  duty  it  shall 
be  to  institute  the  proper  proceedings. —  (34  Stat.,  264,  chap.  3299.) 

Sec.  5.  That  the  Secretary  of  Commerce  and  Labor  shall  have  power  to 

make  rules  and  regulations  not  inconsistent  with  law  to  carry  into  effect  the 

provisions  of  this  Act.     And  it  shall  be  the  duty  of  the  Secretary  of  Commerce 

and  Labor  to  enforce  the  provisions  of  this  Act  and  the  rules  and  regulations 

made  thereunder,  and  for  that  purpose  he  may  employ,  through  the  Secretary 

of  the  Treasury  and  the  Secretary  of  the  Navy,  the  vessels  of  the  United  States 

Revenue-Cutter  Service  and  of  the  Navy:  Provided,  however,  That  nothing 

contained  in  this  Act  shall  be  construed  as  affecting  any  existing  treaty  or 

convention  between  the  United  States  and  any  foreign  power. — (34  Stat.,  264, 

chap.  3299.) 

The  designation  of  the  Department  of  Com-  Ser\-ice  has  been  changed  to  Coast  Guard, 

merce  and  Labor  and  the  Secretary  of  that  (Act  Jan.  28,  1915,  38  Stat.,  800.) 

Department  has  been  changed  to  Depart-  These  sections  were  part  of  an  act  "to  prohibit 

ment  of  Commerce,  and  Secretaiy  of  Com-  aliens  from  fishing  in  the  waters  of  xVlaska." 

merce.     (Act  Mar.  4,  1913,  37  Stat.,  736.)  See  section  1529,  Revised  Statutes,  and  note 

The  designation    of    the  Revenue-Cutter  thereto. 

[1906,  June  16.  Officers  advanced  for  heroism,  additional  numbers.]  That 
officers  of  the  Navy  and  i\Iarine  Corps  advanced  in  rank  for  eminent  and  con- 
spicuous conduct  in  battle  or  extraordinary  heroism,  and  who  since  such 
advancement  have  been  or  may  hereafter  be  promoted,  shall  from  the  date 
of  the  passage  of  this  Act  be  carried  as  additional  numbers  of  each  grade  in 
which  they  serve.— (34  Stat.,  296,  chap.  3338.) 

See  act  of  March  3,  1901  (31  Stat.,  1108),  and 
sections  1506,  1507,  and  1605,  Revised 
Statutes,  and  notes  thereto.  See  also  note 
to  section  1303,  Revised  Statutes,  under 
"Additional  officers  are  authorized,"  etc. 


This  act  was  entitled  "An  Act  To  extend  the 
pro\dsions  of  the  Act  of  March  third,  nine- 
teen hundred  and  one,  to  officers  of  the 
Na\y  and  Marine  Corps  advanced  at  any 
time  under  the  provisions  of  sections  fifteen 
hundred  and  six  and  sixteen  hundred  and 
five  for  eminent  and  conspicuous  conduct 
in  battle." 

[1906,  June  20,  sec.  4.  Naval  vessels  to  enforce  sponge  law.]  That  it  shall 
be  the  duty  of  the  Secretary  of  Commerce  and  Labor  to  enforce  the  provisions 
of  this  Act,  and  upon  his  request  the  Secretary  of  the  Treasury  and  the  Secre- 

1289 


June  22,  1906.  Pt.  S.  STATUTES  AT  LARGE. 


tary  of  the  Navy  may  employ  the  vessels  of  the  Revenue-Cutter  Service  and 
of  the  Navy,  respectively,  to  that  end.— (34  Stat.,  314,  cliap.  3442.) 

This  section  was  part  of  an  act  "to  regulate  the 
landing,  delivery,cure,  and  sale  of  sponges, " 
applicable  to  "the  -waters  of  the  Gulf  of 
Mexico  or  Straits  of  Florida." 

See  section  1529,  Revised  Statutes,  and  note 
thereto. 


The  designation  of  the  Secretary  of  Commerce 

and  Labor  has  been  changed  to  Secretary 

of  C  ommerce.     (Act.  Mar.  4,  1913,  37  Stat., 

73G.) 
The  designation  of  the  Revenue-Cutter  Ser\-ice 

has  been  changed  to  Coast  Guard.     (Act 

Jan.  28,  1915,  38  Stat.,  800.) 

[1906,  June  22,  sec.  4.  Estimates,  form  and  arrangement  of;  appropria- 
tion bills;  Book  of  Estimates.]  Hereafter  the  estimates  for  expenses  of  the 
Government,  except  those  for  sundry  civil  expenses,  shall  be  prepared  and 
submitted  each  year  according  to  the  order  and  arrangement  of  the  appropria- 
tion Acts  for  the  year  preceding.  And  any  changes  in  such  order  and  arrange- 
ment, and  transfers  of  salaries  from  one  office  or  bureau  to  another  ofTice  or 
bureau,  or  the  consolidation  of  ofhces  or  bureaus  desired  by  the  head  of  any 
Executive  Department  may  be  submitted  by  note  in  the  estimates.  The 
committees  of  Congress  in  reporting  general  appropriation  bills  shall,  as  far  as 
may  be  practicable,  follow  the  general  order  and  arrangement  of  the  respective 
appropriation  Acts  for  the  year  preceding. 

Hereafter  the  heads  of  the  several  E?vecutive  Departments  and  all  other 
officers  authorized  or  required  to  make  estimates  for  the  public  service  shall 
include  in  their  annual  estimates  furnished  the  Secretary  of  the  Treasury  for 
inclusion  in  the  Book  of  Estimates  all  estimates  of  appropriations  required 
for  the  service  of  the  fiscal  year  for  which  they  are  prepared  and  submitted, 
and  special  or  additional  estimates  for  that  fiscal  year  shall  only  be  submitted 
to  carry  out  laws  subsequently  enacted,  or  when  deemed  imperatively  neces- 
sary for  the  public  service  by  the  Department  in  which  they  shall  originate, 
in  which  case  such  special  or  additional  estimate  shall  be  accompanied  by  a 
full  statement  of  its  imperative  necessity  and  reasons  for  its  omission  in  the 
annual  estimates. —  (34  Stat.,  448-449,  chap.  3514.) 


Stat.,  415),  and  September  8,  1916,  section 
4  (39  Stat.,  830). 


See  sections  430  and  3660,  Revised  Statutes; 
see  also  acts  of  March  4,  1909,  section  4  (35 
Stat.,  907),  August  23,  1912,  section  9  (37 

[1906,  June  22,  sec.  6.  Transfer  of  employees  between  Departments.]  It 
shall  not  be  lawful  hereafter  for  any  clerk  or  other  employee  in  the  classified 
service  in  any  of  the  Executive  Departments  to  be  transferred  from  one  Depart- 
ment to  another  Department  until  such  clerk  or  other  employee  shall  have 
served  for  a  term  of  three  years  in  the  Department  from  which  he  desires  to  be 
transferred.— (34  Stat.,  449,  chap.  3514.) 


Stat.,  498);  and  see  notes  to  sections  169 
and  416,  Revised  Statutes. 


See  amendments  to  this  section  in  acts  of  Octo- 
ber 6,  1917,  sections  6  and  7  (40  Stat., 
383-384),  and  March  28,  1918,  section  2  (40 

[1906,  June  22,  sec.  6.  Restrictions  on  details  to  Departments  from  outside 

of  District.]  Hereafter  it  shall  be  unlawful  to  detail  civil  officers,  clerks,  or 
other  subordinate  employees  who  are  authorized  or  employed  under  or  paid 
from  appropriations  made  for  the  military  or  naval  establishments,  or  any  other 
branch  of  the  public  service  outside  of  the  District  of  Columbia,  except  those 
officers  and  employees  whose  details  are  now  specially  provided  by  law,  for 
duty  in  any  bureau,  office,  or  other  division  of  any  Executive  Department  in 

1290 


See  notes  to  sections  169  and  416,    Revised 
Statutes. 


Pt.  3.  STATUTES  AT  LARGE.  June  28,  1906. 

the  District  of  Columbia,  except  temporary  details  for  duty  connected  with  their 

respective  ofFices.^ — (34  Stat.,  449,  chap.  3514.) 

Similar  provision  "waa  contained  in  act  of 
August  5,  1882,  section  4  (22  Stat.,  255), 
and  punishment  for  violation  of  that  section 
is  prescribed  by  act  of  August  23,  1912, 
sections  (37  Stat.,  414). 

[1906,  June  22.  Retirement  of  enlisted  men,  service  credited.]  That  in 
computing  the  necessary  thirty  years'  time  for  the  retirement  of  petty  ofhcers 
and  enlisted  men  of  the  Navy,  all  services  in  the  Army,  Navy,  or  Marine  Corps 
shall  be  credited. —  (34  Stat.,  451,  chap.  3518.) 

See  act  of  March  3,  1899,  section  17  (30  Stat.,  1008),  and  laws  noted  thereunder. 

[1906,  June  26.  Official  envelopes  procured  by  Postmaster  General.]  The 
Postmaster-General  shall  contract,  for  a  period  not  exceeding  four  years,  for 
all  envelopes,  stamped  or  otherwise,  designed  for  sale  to  the  public,  or  for  use 
by  the  Post-Office  Department,  the  postal  service,  and  other  Executive  Depart- 
ments, and  all  Government  bureaus  and  establishmentsi  and  the  branches  of 
the  service  coming  under  their  jurisdiction,  and  may  contract  for  them  to  be 
plain  or  with  such  printed  matter  as  may  be  prescribed  by  the  Department 
making  requisition  therefor:  Provided,  That  no  envelope  shall  be  sold  by  the 
Government  containing  any  lithographing  or  engraving,  nor  any  printing  nor 
advertisement,  except  a  prmted  request  to  return  the  letter  to  the  writer. — 
(34  Stat.,  476,  chap.  3546.) 

See  act  of  January  12,  1895,  section  96  (28  Stat.,  624),  which  this  provision  amends. 

[1906,  June  26.  Penalty  envelopes,  use  of.]  That  hereafter  no  article, 
package,  or  other  matter,  except  postage  stamps,  stamped  envelopes,  news- 
paper wrappers,  postal  cards,  and  internal-revenue  stamps,  shall  be  admitted  to 
the  mails  under  a  penalty  privilege,  unless  such  article,  package,  or  other 
matter,  except  postage  stamps,  stamped  envelopes,  newspaper  wrappers,  postal 
cards,  and  internal-revenue  stamps  would  be  entitled  to  admission  to  the  mails 
under  laws  requiring  payment  of  postage. 

That  hereafter  it  shall  be  unlawful  for  any  person  entitled  under  the  law  to 
the  use  of  a  frank  to  lend  said  frank  or  permit  its  use  by  any  committee,  organ- 
ization, or  association,  or  permit  its  use  by  any  person  for  the  benefit  or  use  of 
any  committee,  organization,  or  association:  Provided,  That  this  provision 
shall  not  apph"  to  any  committee  composed  of  Members  of  Congress. — (34  Stat., 
477,  chap.  3546.) 

See  act  of  March  3,  1877,  sections  5  and  6  (19  Stat.,  335-330),  and  laws  noted  thereunder. 

[1906,  June  28.  Guam  and  Samoa,  etc.,  acknowledgment  of  deeds.]  That 
deeds  and  other  instruments  affecting  land  situate  in  the  District  of  Colum- 
bia or  any  Territory  of  the  United  States  may  be  acknowledged  in  the  islands 
of  Guam  and  Samoa  or  in  the  Canal  Zone  before  any  notary  public  or  judge, 
appointed  therein  by  proper  authorit}^,  or  by  any  officer  therein  who  has  ex 
officio  the  powers  of  a  notary  public:  Provided,  That  the  certificate  by  such 
notary  in  Guam,  Samoa,  or  the  Canal  Zone,  as  the  case  may  be,  shall  be  accom- 
panied by  the  certificate  of  the  governor  or  acting  governor  of  such  place  to  the 
effect  that  the  notary  taking  said  acknowledgment  was  in  fact  the  officer  he 
purported  to  be;  and  any  deeds  or  other  instruments  affecting  lands  so  situate, 
so  acknowledged  since  the  first  day  of  January,  nineteen  hundred  and  five,  and 

54641°— 22 82  1291 


June  29,  1906. 


rt. .?.  s;ta  tutes  a  t  large. 


accompanied  ]\v  such  certificate  shall  have  the  same  effect  as  such  deeds  or 
other  instruments  hereafter  so  acknowledged  and  certified. — (34  Stat.,  552, 
chap.  3585.) 


See  section  183,  Revised  Statutes,  and   note 
tliorcto,  as  to  oafhs. 

Status  of  Samoa  and  naval  governor.— 
In  this  statute  ("onpjress  rerop:nizes  and  adopts 
the  action  of  the  President,  taken  pursuant  to 
an  opinion  of  the  Attorney  General,  in  com- 
missioninc:  a  naval  ofTicer  as  governor  of  Amer- 
i(an  Samoa.  (File  3931-1429:36,  Dec.  23, 
1921,  citing  25  Op.  Atty.  Gen.,  592.) 

American  Samoa  is  not  conquered  territory; 
nor  was  it  acquired  by  the  United  States  by 
treaty  ■with  any  foreign  country  ha\dng  power 
to  dispose  of  it  in  that  manner,  although  the 
Senate  on  February  13,  1900,  ratified  a  con- 
vention between  Great  Britain,  Germany,  and 
the  United  States,  under  which  Great  Britain 
and  Germany  renounced  to  the  United  States 
all  claim  to  the  islands  constituting  what  is 
now  known  as  American  Samoa.  (File  3931- 
1429:36,  Dec.  23,  1921.) 

The  sovereignty  of  the  United  States  is 
based  upon  a  formal  cession  of  the  island  of 
Tutuila  to  the  United  States  on  April  17,  1900, 
by  the  chiefs  of  that  island,  and  the  subsequent 
recognition  of  the  authority  of  the  United 
States  over  Manua  by  the  chiefs  of  said  island 
on  July  15,  1905.  These  cessions  were  ac- 
cepted by  the  President  of  the  United  States, 
and  full  information  with  respect  thereto  was 
communicated  to  Congress,  and  the  action  of 
the  President  was  adopted  and  approved  in  a 
number  of  separate  statutory  enactments. 
(File  3931-1429:36,  Dec.  23,  1921.) 

By  act  of  August  5,  1909,  section  1  (36  Stat., 
11),  a  certain  rate  of  duty  was  prescribed  "upon 
all  articles  imported  from  any  foreign  country 
into  the  United  States  or  into  any  of  its  pos- 
sessions (except  the  Philippine  Islands  and  the 
islands  of  Guam  and  Tutuila),"  thereby 
recognizing  and  describing  Tutuila,  one  of  the 
principal  islands  of  American  Samoa,  as  a 
"possession"  of  the  United  States.  (File 
3931-1429:36,  Dec.  23,  1921,  citing  30  Op. 
Attv.  Gen.,  231.) 


Prior  legislation  had  also  recognized  the 
islands  of  Tutuila  and  Samoa  as  "possessions 
of  the  United  Stales."  (File  3931-1429:36, 
Dec.  23,  1921,  citing  25  Op.  Atty.  Gen.,  128, 
130,  131.) 

By  act  of  August  29,  1916  (39  Stat.,  607), 
Congress  made  appropriation  for  a  radio  station 
in  "American  Samoa,"  thereby  recognizing 
said  islands  as  American  territory.  (File  3931- 
1429:36,  Dec.  23,  1921.) 

By  act  of  March  3,  1919  (40  Stat.,  1292), 
Congress  proAddcd  for  a  census  of  American 
Samoa  to  be  taken  by  the  governor  of  said 
islands  in  accordance  with  plans  approved  by 
the  United  States  Director  of  the  Census, 
thereby  recognizing  the  jurisdiction  of  the 
United  States  over  American  Samoa,  and  also 
that  the  chief  executive  charged  ■n-ith  adminis- 
tration thereof  is  "governor"  of  said  islands. 
(File  3931-1429:36,  Dec.  23,  1921.) 

The  government  established  by  the  President 
in  American  Samoa  ha^ving  been  recognized 
and  acquiesced  in  by  Congress,  said  govern- 
ment must  be  recognized  by  all  indi\-iduals 
who  have  occasion  to  deal  therewith  as  the 
lawfully  established  government  for  American 
Samoa,  and  that  said  government  continues  as 
such  until  Congress  sees  fit  to  proA'ide  other- 
wise.    (File  3931-1429:36,  Dec.  23,  1921.) 

Under  the  system  of  government  which  has 
been  established  in  American  Samoa,  the 
individual  commis.sioned  by  the  President  as 
governor  thereof  possesses  supreme  legislative, 
executive,  and  judicial  powers  of  government 
in  relation  thereto,  except  in  so  far  as  restricted 
by  the  President  or  by  the  enactments  of 
Congress.     (File  3931-1429:36,  Dec.  23,  1921.) 

For  other  cases,  see  generally  notes  to  Con- 
stitution, Article  I,  section  8,  clause  11,  Article 
II,  section  3  ("Duty  to  commission  officers"), 
and  Article  IV,  section  3,  clause  2. 


[1906,  June  29.  Refund  of  enlistment  bounty.]  That  the  Secretary  of  the 
Navy  may,  in  his  discretion,  require  the  whole  or  a  part  of  the  bounty  allowed 
upon  enlistment  to  be  refunded  in  cases  where  men  are  discharged  during  the 
first  year  of  enlistment,  by  request,  for  inaptitude,  as  undesirable,  or  for  dis- 
ability not  incurred  in  line  of  duty. — (34  Stat.,  553,  chap,  3590.) 


This  provision  is  repeated  in  act  of  March  2, 
1907  (34  Stat.,  1176). 

Refund  in  cases  of  minors  discharged  on  re- 
quest of  parents  or  guardians,  is  pro\'ided 
for  in  act  of  March  3,  1915  (38  Stat.,  931). 

Refund  in  cases  of  men  discharged  within  six 
months  of  enlistment  is  authorized  by  a 
subsequent  provision  of  this  act  set  forth 
below  (34  Stat.,  5-56). 

See  act  of  March  1,  1889  (25  Stat.,  781),  as  to 
furnishing  of  bounty  upon  enlistment. 

See  notes  to  sections  1418,  1569,  and  3689, 
Revised  Statutes;  and  see  note  to  section 
1556,  Re\ised  Statutes,  as  to  uniform  gra- 
tuitv  in  the  Naval  Reserve  Force.  See 
also" act  of  March  3,  1915  (.38  Stat.,  932). 


Purchase  of  discharge  was  authorized  bv  act  of 
Mar.  3,  1893  (27  Stat.,  717);  and  furlough 
"udthout  pay  in  lieu  of  discharge  by  pur- 
chase,  and,   under   the  same   conditions, 
was  authorized  by  act  of  August  29,  1916 
(39  Stat.,  580). 
Refund  not   authorized  in   absence    of 
statute. — Prior  to  this  enactment,  it  was  held 
by    the    Attorney    General    that    regulations 
issued  by  the  Secretary  of  the  Navy,  requiring 
a  refund  of  enlistment  bounty  in  cases  of  ap- 
prentices discharged  \vithin  a  year  after  enlist- 
ment,  for   disability   not  incurred  in   line   of 
dutv,  were  inconsistent  with  law,  and  void. 
(25 'Op.  Atty.  Gen.,  270.     See  note  to  act  of 
Mar.  1,  1889,  25  Stat.,  781.) 


1292 


Pt.  3.  STATUTES  AT  LARGE.  June  29,  1906. 


[1906,  June  29.  Retirement  of  Navy  officers  for  Civil  War  service.]  That 
any  officer  of  the  Navy  not  above  the  grade  of  captain  who  served  with  crecUt 
as  an  officer  or  as  an  enhsted  man  in  the  regular  or  volunteer  forces  during  the 
civil  war  prior  to  April  ninth,  eighteen  hundred  and  sixty-five,  otherwise  than 
as  a  cadet,  and  whose  name  is  borne  on  the  official  register  of  the  Navy,  and 
who  has  heretofore  been,  or  may  hereafter  be,  retired  on  account  of  wounds  or 
disability  incident  to  the  service  or  on  account  of  age  or  after  forty  years' 
service,  may,  in  the  discretion  of  the  President,  by  and  with  the  advice  and 
consent  of  the  Senate,  be  placed  on  the  retired  list  of  the  Navy  with  the  rank 
and  retired  pay  of  one  grade  above  that  actually  held  by  him  at  the  time  of 
retirement:  Provided,  That  this  act  shall  not  apply  to  any  officer  who  received 
an  advance  of  grade  at  or  since  the  date  of  his  retirement  or  who  has  been 
restored  to  the  Navy  and  placed  on  the  retired  list  by  virtue  of  the  provisions 
of  a  special  act  of  Congress. — (34  Stat.,  554,  chap.  3590.) 


See  act  of  March  3,  1899,  section  11  (30  Stat., 
1007),  and  act  March  3,  1909  (35  Stat., 
753);  and  see  note  to  section  1457,  Revised 
Statutes;  see  also  sections  1443-1465,  Re- 
\'ised  Statutes,  relating  to  retired  officers 
of  the  Navy. 

See  section  1588,  Revised  Statutes,  as  to  pay  of 
retired  officers. 
Midshipman    service    during    the    Civil 

War. — As  to  whether  ser\'ice  as  a  midshipman 

during  the  Ci\al  War  was  servdce  as  an  officer 


of  the  Navy  within  the  meaning  of  section  11  of 
the  Navy  personnel  act  of  IMarch  3,  1899  (30 
Stat.,  1007);  and  the  effect  of  this  enactment 
upon  said  provision  of  the  personnel  act,  as 
applied  to  one  who  served  as  a  midshipman  in 
the  Civil  War,  see  the  following  cases:  Jasper 
V.  United  States  (38  Ct.  Cls.,  202,  40  Ct.  Cls.,  76); 
Moser  w.  United  States  (42  Ct.  Cls.,  86);  Jasper  t). 
United  States  (43  Ct.  Cls.,  368);  United  States 
ex  rel.  Moser  v.  Meyer  (38  App.  D.  C,  13); 
Moser  v.  United  States  (49  Ct.  Cls.,  285). 


[1906,  June  29.  Retirement  of  Marine  officers  for  Civil  War  service.]  That 
any  officer  of  the  Marine  Corps  below  the  grade  of  brigadier-general  who  served 
with  credit  as  an  officer  or  as  an  enlisted  man  in  the  regular  or  volunteer  forces 
during  the  civil  war  prior  to  April  ninth,  eighteen  hundred  and  sixty-five,  other- 
wise than  as  a  cadet,  and  whose  name  is  borne  on  the  official  register  of  the 
Marine  Corps,  and  who  has  heretofore  been,  or  may  hereafter  be,  retired  on 
account  of  wounds  or  disability  incident  to  the  service,  or  on  account  of  age  or 
after  forty  years'  service,  may,  in  the  discretion  of  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate,  be  placed  on  the  retired  list  of  the  Marine 
Corps  with  the  rank  and  retired  pay  of  one  grade  above  that  actually  held  by 
him  at  the  time  of  retirement:  Provided,  That  this  act  shall  not  apply  to  any 
officer  who  received  an  advance  of  grade  since  the  date  of  his  retirement  or  who 
has  been  restored  to  the  Marine  Corps  and  placed  on  the  retired  list  by  virtue 
of  the  provisions  of  a  special  act  of  Congress. — (34  Stat.,  554,  chap.  3590.) 

See  act  of  April  27,  1904  (33  Stat.,  349);  and  see  note  to  section  1622,  Revised  Statutes. 

[1906,  June  29.  Shore  duty  pay,  naval  officers.]  That  the  provision  con- 
tained in  section  thirteen  of  an  act  approved  March  third,  eighteen  hundred  and 
ninety-nine,  entitled  "An  act  to  reorganize  and  increase  the  efficiency  of  the 
personnel  of  the  Navy  and  Marine  Corps  of  the  United  States,"  reading  as 
follows:  ^'Provided,  That  such  officers  when  on  shore  shall  receive  the  allow- 
ances, but  fifteen  per  centum  less  pay  than  when  on  sea  duty;  but  this  provision 
shall  not  apply  to  warrant  officers  commissioned  under  section  twelve  of  this 
act,"  be,  and  the  same  is  hereby,  repealed. — (34  Stat.,  554,  chap.  3590.) 

See  note  to  sections  1556  and  1571,  Revised  Statutes;  and  see  act  of  March  3,  1899,  section 
13  (30  Stat.,  1007). 

1293 


June  29,  1906.  Pt.  3.  STATUTES  AT  LARGE. 

[1906,  June  29.  Refund  of  enlistment  outfits.]  That  liereafter  the  Secre- 
tary of  the  Navy  may,  in  his  discretion,  require  the  whole  or  a  part  of  the  cost 
of  outfits  allowed  upon  enlistment  to  be  refunded  in  cases  where  men  are  dis- 
charged during  the  first  six  months  of  enlistment  for  any  cause  other  than 
disability  incurred  in  line  of  duty. — (34  Stat.,  556,  chap.  3590.) 

See  provision  in  this  act  as  to  refund  on  discharge  during  first  year  of  enlistment  (34  Stat., 
55:5\  and  note  thereto. 

[1906,  June  29.  Naval  Home,  employing  beneficiaries.]  That  for  the  per- 
formance of  such  additional  services  in  and  about  the  Naval  Home  as  may  be 
necessary,  the  Secretary  of  the  Navy  is  authorized' to  employ,  on  the  recom- 
mendation of  the  governor,  beneficiaries  in  said  home,  whose  compensation 
shall  be  fixed  by  the  Secretary  and  paid  from  the  appropriation  for  the  support 
of  the  home.— (34  Stat.,  557,  chap.  3590.) 

This   pro\ision  was  repeated   in   the   annual  the  Naval  Home,  have  contained  the  fol- 

naval  appropriation  acts,  pro\-iding  for  the  lowing  clause:   "*_   *    *    emplo>Ttient  of 

maintenance  of  the  Naval  Home,  to  and  such  beneficiaries  in  and  about  the  Naval 

including  the  act  of  August  22,  1912  (39  Home  as  may  be  authorized  by  the  Secre- 

Stat.,  334-335),  since  which  time  the  an-  tary  of  the  Na\^',  on  the  recommendation 

nual  appropriation  acts  for  the  naval  serv-  of  the  governor."    (E.  g.,  act  June  4,  1920, 

ice,  in  pro%iding  for  the   maintenance  of  41  Stat.,  818.) 

[1906,  June  29.  Chief  of  Bureau  of  Yards  and  Docks.]  The  Chief  of  the 
Bureau  of  Yards  and  Docks  shall  be  selected  from  the  members  of  the  Corps 
of  Civil  Engineers  of  the  Navy  having  not  less  than  seven  years'  active  service. — 
(34  Stat.,  564,  chap.  3590.) 

See  section  422,  Re\-ised  Statutes,  and  note  thereto. 

[1906,  June  29.  Naval  Academy,  admission  of  foreign  students.]  No  person 
shall  be  admitted  for  instruction  at  the  Naval  Academy  at  Annapolis  from  any 
foreign  country  except  upon  authority  of  law  hereafter  enacted. — (34  Stat., 
577,  chap.  3590.) 

See  note  to  section  1513,  Revised  Statutes. 

[1906,  June  29.  Appointment  of  midshipmen;  nomination  of  candidates, 
etc.]  Hereafter  the  Secretary  of  the  Navy  shall,  as  soon  as  possible  after  the 
first  day  of  June  of  each  year  prececling  the  graduation  of  midshipmen  in  the 
succeeding  year,  notify  in  writing  each  Senator,  Representative,  and  Delegate 
in  Congress  of  any  vacancy  that  wall  exist  at  the  Naval  Academy  because  of 
such  graduation,  or  that  may  occur  for  other  reasons  and  which  he  shall  be 
entitled  to  fill  by  nomination  of  a  candidate  and  one  or  more  alternates  therefor. 
The  nomination  of  a  candidate  and  alternate  or  alternates  to  fill  said  vacancy 
shall  be  made  upon  the  recommendation  of  the  Senator,  Representative,  or 
Delegate,  if  such  recommendation  is  made  by  the  fourth  day  of  March  of  the 
year  foUowmg  that  in  which  said  notice  in  writing  is  given,  but  if  it  is  not 
made  by  that  time  the  Secretary  of  the  Navy  shall  fill  the  vacancy  by  appoint- 
ment of  an  actual  resident  of  the  State,  Congressional  district,  or  Territory,  as 
the  case  may  be,  in  which  the  vacancy  will  exist,  who  shall  have  been  for  at 
least  two  years  immediately  preceding  the  date  of  his  appointment  an  actual 
and  bona  fide  resident  of  the  State,  Congressional  district,  or  Territory  in 
which  the  vacancy  wiU  exist  and  of  the  legal  Qualification  under  the  law  as 
now  provided.  In  cases  where  by  reason  of  a  vacancy  in  the  membership  of 
the  Senate  or  House  of  Representatives,  or  by  the  death  or  decHnation  of  a 

1294 


Ft.  3.  STATUTES  AT  LARGE.  June  29,  1906. 

candidate  for  admission  to  the  academy  there  occurs  or  is  about  to  occur  at 
the  academy,  a  vacancy  from  any  State,  district,  or  Territory  that  can  not  be 
fiJled  by  nomination  as  herein  provided,  the  same  may  be  filled  as  soon  there- 
after and  before  the  final  entrance  examination  for  the  year  as  the  Secretary  of 
the  Navy  may  determine.  Tlie  candidates  allowed  for  the  District  of  Columbia 
and  all  the  candidates  appointed  at  large,  together  with  alternates  therefor, 
shall  be  selected  by  the  President  within  the  period  herein  prescribed  for  nomi- 
nation of  other  candidates:  Provided,  That  the  President  may  select  a  candi- 
date for  the  District  of  Columbia  for  the  year  nineteen  hundred  and  eight. — (34 
Stat.,  578,  chap.  3590.) 

See  notes  to  sections  1514  and  1517,  Revised  Statutes. 

[1906,  June  29.  Transfer  of  records  to  Navy  Department.]  That  all  records 
(such  as  muster  and  pay  rolls  and  reports)  relating  to  the  personnel  and  opera- 
tions of  public  and  private  armed  vessels  of  the  North  American  colonies  in 
the  war  of  the  Revolution  now  in  any  of  the  Executive  Departments  shall  be 
transferred  to  the  Secretary  of  the  Navy,  to  be  preserved,  indexed,  and  pre- 
pared for  pubhcation. —  (34  Stat.,  579,  chap.  3590.) 

See  acts  of  April  27,  1904  (33  Stat.,  403),  and  March  2,  1913  (37  Stat.,  723);  see  also  note  to 
section  418,  Revised  Statutes. 

[1906,. June  29.  Deposit  of  savings,  Marine  Corps.]  That  hereafter  enlisted 
men  of  the  Marine  Corps  shall  be  entitled  to  deposit  their  savings  with  the 
United  States,  through  any  paymaster,  in  the  some  manner  and  under  tlie 
same  conditions  as  is  now  or  may  hereafter  be  provided  for  the  enlisted  men 
of  the  Navy:  Provided,  hou:ever,  That  the  sums  so  deposited  shall  pass  to  the 
credit  of  the  appropriation  for  pay  of  the  Marine  Corps. — (34  Stat.,  579,  chap. 
3590.) 

See  act  of  February  9,  1889  (25  Stat.,  657-658),  as  to  deposit  of  savings  by  enlisted  men  of 
the  Navy;  see  also  notes  to  sections  1569,  1612,  and  1621,  Revised  Statutes. 

[1906,  June  29.  Notaries  public,  practice  before  Departments.]  That  sec- 
tion five  hundred  and  fifty-eight  of  the  Code  of  Law  for  the  District  of  Columbia, 
relating  to  notaries  public,  be  amended  by  adding  at  the  end  of  said  section 
the  following:  Provided,  That  the  appointment  of  any  person  as  such  notary 
public,  or  the  acceptance  of  his  commission  as  such,  or  the  performance  of  the 
duties  thereunder,  shall  not  disqualify  or  prevent  such  person  from  representing 
clients  before  any  of  the  Departments  of  the  United  States  Government  in  the 
District  of  Columbia  or  elsewhere,  provided  such  person  so  appointed  as  a 
notary  public  who  appears  to  practice  or  represent  clients  before  any  such 
Department  is  not  otherwise  engaged  in  Government  employ  and  shall  be 
admitted  by  the  heads  of  such  Departments  to  practice  therein  in  accordance 
with  the  rules  and  regulations  prescribed  for  other  persons  or  attorneys  who 
are  admitted  to  practice  therein:  And  provided  further,  That  no  notary  public 
shall  be  authorized  to  take  acknowledgments,  administer  oaths,  certify  papers, 
or  perform  any  official  acts  in  connection  with  matters  in  which  he  is  employed 
as  counsel,  attorney,  or  agent  or  in  which  he  may  be  in  any  way  interested 
before  any  of  the  Departments  aforesaid." — (34  Stat.,  622,  chap.  3616.) 

See  section  190,  Revised  Statutes,  and  note  thereto. 

1295 


June  30,  1906.  Pt.  S.  STATUTES  AT  LARGE. 

[1906,  June  30.  Deceased  inmates,  Saint  Elizabeths  Hospital;  disposition 
of  moneys.]  All  moneys  belonging  to  deceased  inmates  of  the  Government 
Hospital  for  the  Insane  and  deposited  in  the  Treasury  by  the  superintendent 
as  agent  prior  to  February  twentieth,  nineteen  hundred  and  five,  shall,  if 
unclaimed  by  the  legal  heirs  of  such  inmate  within  the  period  of  five  years 
from  the  date  of  the  passage  of  this  Act,  be  covered  into  the  Treasury,  and  all 
moneys  so  deposited  by  the  superintendent  as  agent  after  February  twentieth, 
nineteen  lumdred  and  five,  and  b(>louging  to  inmates  who  have  died  since  that 
time,  or  may  hereafter  die,  shall  likewise  be  covered  into  the  Treasury  unless 
claimed  by  his  or  her  legal  heirs  within  five  years  from  the  death  of  the  inmate. 
And  the  superintendent  of  the  Government  Hospital  for  the  Insane  is  hereby 
authorized  and  directed,  under  such  regulations  as  may  be  prescribed  by  the 
Secretary  of  the  Interior,  to  make  diligent  inquiry  in  every  instance  after  the 
death  of  an  inmate  to  ascertain  the  whereabouts  of  his  or  her  legal  heirs.  Claims 
may  be  presented  hereunder  at  any  time,  and  when  estabhshed  by  competent 
proof  in  any  case  more  than  five  years  after  the  death  of  an  inmate  shall  be 
certified  to  Congress  for  consideration. —  (.34  Stat.,  730-731,  chap.  3914.) 


Elizabeth's  Hospital"  by  act  of  July  1, 
1916  (39  Stat.,  309). 


See  sections  4839.  and  4843,  Revised  Statutes. 

The  designation  of  the  "Governnient  Hospital 

for  the  Insane"  was  changed  to  "Saint 

[1906,  June  30,  sec.  2.  Estimates  for  printing  and  binding ;  use  of  appro- 
priations; envelopes  excepted.]  Hereafter  there  shaU  be  submitted  in  the 
regular  annual  estimates  to  Congress  under  and  as  a  part  of  the  expenses  for 
''Printing  and  binding,"  estimates  for  all  printing  and  binding  required  by 
each  of  the  Executive  Departments,  their  bureaus  and  offices,  and  other  Gov- 
ernment establishments  at  Washington,  District  of  Columbia,  for  each  fiscal 
year;  and  after  the  fiscal  year  nineteen  hmidred  and  seven  no  appropriations 
other  than  those  made  specifically  and  solely  for  printing  and  binding  shall  be 
used  for  such  purposes  in  any  Executive  Department  or  other  Government 
establishment  in  the  District  of  Columbia:  Provided,  That  nothing  in  this 
section  shall  apply  to  stamped  envelopes,  or  envelopes  and  articles  of  stationery 
other  than  letter  heads  and  note  heads,  printed  in  the  course  of  manufacture. — 
(34  Stat.,  762,  chap.  3914.) 

See  act  of  January  12,  1895,  sections  27  and  96  (28  Stat.,  604,  624). 

[1906,  June  30,  sec.  5.  Reports  to  Secretary  of  the  Treasury,  proceeds  of  public 
property,  etc.]  Hereafter  the  Secretary  of  the  Treasury  shall  require,  and 
it  shall  be  the  duty  of  the  head  of  each  Executive  Department  or  other  Gov- 
ernment establishment  to  furnish  him,  within  thirty  days  after  the  close  of  each 
fiscal  year,  a  statement  of  all  money  arising  from  proceeds  of  public  property 
of  any  kind  or  from  any  source  other  than  the  postal  service,  received  by  said 
head  of  Department  or  other  Government  establishment  during  the  previous 
fiscal  year  for  or  on  account  of  the  public  service,  or  in  any  other  manner 
in  the  discharge  of  his  official  duties  other  than  as  salary  or  compensation, 
which  was  not  paid  into  the  General  Treasury  of  the  United  States,  together 
with  a  detailed  account  of  all  payments,  if  any,  made  from  such  funds  dur- 
ing such  year.  All  such  statements,  together  with  a  similar  statement  apply- 
ing to  the  Treasury  Department,  shall  be  transmitted  by  the  Secretary  of  the 

1296 


Pt.  3.  STATUTES  AT  LARGE.  June  30,  1906. 

Treasury  to  Congress  at  the  beginning  of  each  regular  session. — (34  Stat.,  763, 
chap.  3914.) 

See  note  to  section  429,  Revised  Statutes,  and  see  section  3692,  Revised  Statutes. 

[1906,  June  30,  sec.  6.  Computation  of  annual  or  monthly  compensation.] 
Hereafter,  where  the  compensation  of  any  person  m  the  service  of  the  United 
States  is  annual  or  monthly  the  following  rules  for  division  of  time  and  compu- 
tation of  pay  for  services  rendered  are  hereby  established:  Annual  compensa- 
tion shall  be  divided  into  twelve  equal  installments,  one  of  which  shall  be  the 
pay  for  each  calendar  month;  and  in  making  payments  for  a  fractional  part  of  a 
month  one-thirtieth  of  one  of  such  installments,  or  of  a  monthly  compensation, 
shall  be  the  daily  rate  of  pay.  For  the  purpose  of  computing  such  compen- 
sation and  for  computing  time  for  services  rendered  during  a  fractional  part 
of  a  month  in  connection  with  annual  or  monthly  compensation,  each  and 
every  month  shall  be  held  to  consist  of  thirty  days,  without  regard  to  the  actual 
number  of  days  in  any  calendar  month,  thus  excluding  the  thirty-first  of  any 
calendar  month  from  the  computation  and  treating  February  as  if  it  actually  had 
thirty  days.  Any  person  entering  the  service  of  the  United  States  during  a 
thu'ty-one  day  month  and  serving  until  the  end  thereof  shall  be  entitled  to 
pay  for  that  month  from  the  date  of  entry  to  the  thirtieth  day  of  said  month, 
both  days  inclusive;  and  any  person  entering  said  service  during  the  month 
of  February  and  serving  until  the  end  thereof  shall  be  entitled  to  one  month's 
pay,  less  as  many  thirtieths  thereof  as  there  were  days  elapsed  prior  to  date  of 
entry:  Provided,  That  for  one  day's  unauthorized  absence  on  the  thirty-first 
day  of  any  calendar  month  one  day's  pay  shall  be  forfeited. — (34  Stat.,  763, 
chap.  3914.) 

See  section  167,  Re%dsed  Statutes,  and  note  thereto. 

[1906,  June  30,  sec.  9.  Appropriations  and  contracts;  authority  must  be  specific] 
No  Act  of  Congress  hereafter  passed  shall  be  construed  to  make  an  appropriation 
out  of  the  Treasury  of  the  United  States,  or  to  authorize  the  execution  of  a 
contract  involving  the  payment  of  money  in  excess  of  appropriations  made  by 
law,  unless  such  Act  shall  in  specific  terms  declare  an  appropriation  to  be  made 
or  that  a  contract  may  be  executed. — (34  Stat,,  764,  chap.  3914.) 

See  section  3679,  Revised  Statutes. 

[1906,  June  30.  Nautical  schools,  Philippines,  loan  of  vessel ;  detail  of  en- 
listed men ;  additional  to  authorized  strength.]  That  the  Secretary  of  the  Navy 
be,  and  he  is  hereby,  authorized  and  empowered  to  loan  temporarily  to  the  govern- 
ment of  the  Philippine  Islands,  upon  the  written  application  of  the  Secretary 
of  War,  a  vessel  of  the  United  States  Navy,  to  be  selected  from  such  vessels  as 
are  not  suitable  or  requhed  for  general  service,  together  with  such  of  her  apparel, 
charts,  books,  and  instruments  of  navigation  as  he  may  deem  proper,  said 
vessel  to  be  used  only  by  such  nautical  schools  as  are  or  may  hereafter  be 
maintained  by  said  government  of  the  Philippine  Islands:  Provided,  That 
when  such  schools  shall  be  abandoned,  or  when  the  interests  of  the  naval  service 
shall  so  require,  such  vessel,  together  with  her  apparel,  charts,  books,  and  instru- 
ments of  navigation,  shall  be  immediately  restored  to  the  custody  of  the  Secre- 
tary of  the  Navy:  And  provided  further,  That  when  such  loan  is  made  to  the 

1297 


As  to  authorized  enlisted  strength  of  the  Navy, 
see  note  to  section  1417,  Revised  Statutes. 


other  United  States  bonds  in  lieu  of  indem- 
nity bonds. 


Mar.  2,  1907.  Pt.  S.  STATUTES  AT  LARGE. 

govcrmnent  of  the  Philippine  Ishiiuls,  the  Secretary  of  the  Navy  is  authorized 
to  detail  from  the  enlisted  force  of  the  Navy  a  sullicient  number  of  men,  not 
exceeding  six  for  any  vessel,  as  ship  keepers,  the  men  so  detailed  to  be  addi- 
tional to  the  number  of  enlisted  men  allowed  by  law  for  the  naval  establishment, 
and  in  making  details  for  this  service  preference  shall  be  given  to  those  men 
who  have  served  twenty  years  or  more  m  the  Navy. — (34  Stat.,  817,  chap. 
3937.) 

See  act  of  March  3,  1901  (31  Stat.,  1440),  as 
amended  and  reenacted;  see  also  act  of 
March  4,  1911  (36  Stat.,  1353). 

[1906,  Dec.  11.  Certified  checks  in  lieu  of  bonds,  contracts  for  naval  sup- 
plies.] That  the  Secretary  of  the  Navy  may,  in  his  discretion,  accept,  in  lieu  of 
the  A\Titten  guaranty  required  to  accompany  a  proposal  for  naval  supplies,  and 
in  lieu  of  the  bond  required  for  the  faithful  performance  of  a  contract  for  fur- 
nishing such  supplies,  a  certified  check,  payable  to  the  order  of  the  Secretary 
of  the  Navy,  for  from  twenty-five  to  fifty  per  centum  of  the  amount  of  such 
proposal  or  contract,  the  check  to  be  held  by  the  Secretary  of  the  Navy  until 
the  requirements  of  the  proposal  or  contract  shall  be  complied  with  and  as  a 
guaranty  for  compliance  with  the  same. — (34  Stat.,  841,  chap.  1.) 

See  section  3719,  Revised  Statutes;  see  also 
act  of  February  24,  1919,  section  1320  (40 
Stat.,  1148),  as  to  acceptance  of  Liberty  or 

[1907,  Feb.  26,  sec.  6.  Traveling  expenses,  naval  officers,  Light-House  Estab- 
lishment.] That  hereafter  officers  of  the  Army  and  Navy  detailed  for  service  in 
connection  with  the  Light-House  Establislmaent  shall  be  paid  their  actual 
traveling  expenses  w^hen  traveling  under  orders  on  official  duty  to  and  from 
points  which  can  not  be  conveniently  reached  by  vessel  or  railroad. — (34  Stat., 
997,  chap.  1638.) 

See  sections  1566  and  4679,  Revised  Statutes,  and  notes  thereto. 

[1907,  Mar.  2.  Army  transports,  accommodations  available  for  naval  person- 
nel and  supplies.]  When,  in  the  opinion  of  the  Secretary  of  War,  accommoda- 
tions are  available,  transportation  may  be  provided  for  the  officers,  enlisted  men, 
employees,  and  supplies  of  the  Navy,  the  Alarine  Corps,  and  for  members  and 
employees  of  the  Philippine  and  Hawaiian  governments,  officers  of  the  War 
Department,  IVIembers  of  Congress,  other  officers  of  the  Government  while 
traveling  on  official  business,  and  ^dthout  expense  to  the  United  States,  for 
the  families  of  those  persons  herein  authorized  to  be  transported,  and  when 
accommodations  are  available,  transportation  may  be  provided  for  general 
passengers  to  the  island  of  Guam,  rates  and  regulations  therefor  to  be  pre- 
scribed by  the.  Secretary  of  War.— (34  Stat.,  1170-1171,  chap.  2511.) 

See  sections  1135  and  3718,  Revised  Statutes,  and  notes  thereto. 

[1907,  Mar.  2.  Refund  of  enlistment  bounty.]  That  the  Secretary  of  the 
Navy  may,  in  his  discretion,  require  the  whole  or  a  part  of  the  boimty  allowed 
upon  enlistment  to  be  refunded  in  cases  where  men  are  discharged  during  the 
first  year  of  enlistment  by  request,  for  inaptitude,  as  tmdesirable,  or  for  dis- 
ability not  incurred  in  line  of  duty. — (34  Stat.,  1176,  chap.  2512.) 


See  identical  provision  contained  in  act  of 
June  29,  1906  (34  Stat.,  553),  and  note 
thereto;  see  also  provision  for  refund  in 


cases  of  men  discharged  within  six  months 
of  enlistment,  contained  in  act  of  June  29, 
1906  (34  Stat.,  556). 


1298 


Pt.  3.  STATUTES  AT  LARGE.  Mar.  2,  1907. 

[1907,  Mar.  2.  Open-ttiarket  purchases.]     That  hereafter  the  purchase  of 

supphes  and  the  procurement  of  services  for  all  branches  of  the  naval  service 

may  be  made  in  open  market  in  the  manner  common  among  business  men, 

without  formal  contract  or  bond,  when  the  aggregate  of  the  amount  required 

does  not  exceed  five  hundred  dollars,  and  when,  in  the  opinion  of  the  proper 

administrative  officers,  such  limitation  of  amount  is  not  designed  to  evade 

purchase  under  formal  contract  or  bond,  and  equally  or  more  advantageous 

terms  can  thereby  be  secured. — (34  vStat.,  1193,  chap.  2512.) 

See  sections  3709,  3718,  and  3721,  Revised  Statutes,  and  notes  thereto;  and  see  act  of  June  17, 
1910,  section  4  (36  Stat.,  531). 

[1907,  Mar.  2.  Report  to  Congress,  proposed  repairs  on  vessels.]  That  the 
Secretary  of  the  Navy  shall  hereafter  report  to  Congress,  at  the  commence- 
ment of  each  regular  session,  the  number  of  vessels  and  their  names  upon 
which  any  repairs  or  changes  are  proposed  which  in  any  case  shall  amount  to 
more  than  two  hundred  thousand  dollars,  the  extent  of  such  proposed  repairs 
or  changes,  and  the  amounts  estimated  to  be  needed  for  the  same  in  each  vessel; 
and  expenditures  for  such  repairs  or  changes  so  limited  shall  be  made  only 
after  appropriations  in  detail  are  provided  for  by  Congress. — (34  Stat.,  1195, 
chap.  2512.) 


See  note  to  section  1538,  Revised  Statutes,  and 
see  act  of  March  3,  1909  (35  Stat.,  769). 
See  also  section  429,  Revised  Statutes,  and 
note  thereto. 


By  act  of  August  29,  1916  (39  Stat.,  605),  the 
statutory  limit  of  $200,000  for  repairs  and 
changes  to  capital  ships,  as  provided  in 
this  act,  was  changed  to  $300,000. 


[1907,  Mar.  2.  Marines  detailed  as  cooks.]  Pay,  Marine  Corps.  *  *  * 
Provided,  That  hereafter  privates  regularly  detailed  and  serving  as  cooks, 
shall  receive,  in  addition  to  the  pay  otherwise  allowed  by  law,  the  following: 
First-class  cooks,  ten  dollars  per  month;  second-class  cooks,  eight  dollars; 
third-class  cooks,  seven  dollars;  and  fourth-class  cooks,  five  dollars. — (34  Stat., 
1200,  chap.  2512.) 

See  note  to  section  1612,  Revised  Statutes. 

[1907,  Mar.  2.  Retirement  of  enlisted  men.  Navy  and  Marine  Corps.]  That 
when  an  enlisted  man  shall  have  served  thirty  years  either  in  the  Army,  Navy, 
or  Marine  Corps,  or  in  all,  he  shall,  upon  making  application  to  the  President, 
be  placed  upon  the  retired  list,  with  seventy-five  per  centum  of  the  pay  and 
allowances  he  may  then  be  in  receipt  of,  and  that  said  allowances  shall  be  as 
follows:  Nine  dollars  and  fifty  cents  per  month  in  lieu  of  rations  and  clothing 
and  six  dollars  and  twenty-five  cents  per  month  in  lieu  of  quarters,  fuel,  and 
light:  Provided,  That  in  computing  the  necessary  thirty  years'  time  all  service 
in  the  Army,  Navy,  and  Marine  Corps  shall  be  credited. 

Sec.  2.  That  all  Acts  and  parts  of  Acts,  so  far  as  they  conflict  with  the  pro- 
visions of  this  Act,  are  hereby  repealed. — (34  Stat.,  1217-1218,  chap.  2515.) 
See  act  of  March  3,  1899,  section  17  (30  Stat.,  as  to  enlisted  men  of  the  Marine  Corps, 


1008),  and  laws  noted  thereunder;  and  see 


act  of  August  30,  1890  (26  Stat.,  504). 


[1907,  Mar.  2.  Wearing  of  badges,  military  societies.]  That  the  distinctive 
badge  adopted  by  the  Army  and  Navy  Union  of  the  United  States  may  be 
worn,  in  their  own  right,  upon  all  public  occasions  of  ceremony  by  officers  and 
enlisted  men  of  the  Army  and  Navy  of  the  United  States  who  are  members  of 
said  organization. — (34  Stat.,  1423,  Res.  No.  18.) 

See  note  to  section  1407,  Revised  Statutes. 

1299 


Apr.  28,  1908.  Pt.  S.  STATUTES  AT  LARGE. 

[1908,  Jan.  16.  Printing  and  binding;  numbering  of  documents;  title; 
printing  of  departmental  edition.]  That  publications  ordered  printed  by 
Congress,  or  either  House  thereof,  shall  be  in  four  series,  namely:  One  series 
of  reports  made  by  the  committees  of  the  Senate,  to  be  known  as  Senate 
reports;  one  series  of  reports  made  by  the  committees  of  the  House  of  Repre- 
sentatives, to  be  known  as  House  reports;  one  series  of  documents  other  than 
reports  of  committees,  the  orders  for  printing  which  originate  in  the  Senate, 
to  be  known  as  Senate  documents,  and  one  series  of  documents  other  than 
committee  reports,  the  orders  for  printing  which  originate  in  the  House  of 
Representatives,  to  be  kno^vn  as  House  documents.  The  publications  in  each 
series  shall  be  consecutively  numbered,  the  numbers  in  each  series  continuing 
in  unbroken  sequence  throughout  the  entire  term  of  a  Congress,  but  the  fore- 
going provisions  shall  not  apply  to  the  documents  printed  for  the  use  of  the 
Senate  in  executive  session:  Provided,  That  of  the  "usual  number,"  the  copies 
which  are  intended  for  distribution  to  State  and  Territorial  libraries  and  other 
designated  depositories  of  all  annual  or  serial  publications  originating  in  or  pre- 
pared by  an  Executive  Department,  bureau,  office,  commission,  or  board  shall 
not  be  numbered  in  the  document  or  report  series  of  either  House  of  Congress, 
but  shall  be  designated  by  title  and  bound  as  hereinafter  provided,  and  the 
departmental  edition,  if  any,  shall  be  printed  concurrently  "wath  the  ''usual 
number:"  And  provided  further,  That  hearings  of  committees  may  be  printed 
as  Congressional  documents  only  when  specifically  ordered  by  Congress  or  either 
House  thereof. 

Sec.  2.  That  in  the  binding  of  Congressional  documents  and  reports  for 
distribution  by  the  superintendent  of  documents  to  State  and  Territorial 
libraries  and  other  designated  depositories,  every  publication  of  sufficient  size 
on  any  one  subject  shall  hereafter  be  bound  separately  and  receive  the  title 
suggested  by  the  subject  of  the  volume,  and  the  others  shall  be  distributed  in 
unbound  form  as  soon  as  printed.  The  Public  Printer  shall  supply  the  super- 
intendent of  documents  sufficient  copies  of  those  publications  distributed  in 
unbound  form,  to  be  bound  and  distributed  to  the  State  and  Territorial  libraries 
and  other  designated  depositories  for  their  permanent  files.  The  library  edition, 
as  well  as  all  other  bound  sets  of  Congressional  numbered  documents  and  reports, 
shall  be  arranged  in  volumes  and  bound  in  the  manner  directed  by  the  Joint 
Committee  on  Printing.— (35  Stat.,  565-566,  Res.  No.  3.) 

See  act  of  January  12,  1895  (28  Stat.,  601-624). 

[1908,  Apr.  28.  Regattas  or  marine  parades ;  regulations ;  enforcement.]  That 
the  Secretary  of  Commerce  and  Labor  is  hereby  authorized  and  empowered 
in  his  discretion  to  issue  from  time  to  time  regulations,  not  contrary  to  law,  to 
promote  the  safety  of  life  on  navigable  waters  during  regattas  or  marine  parades. 

Sec.  2.  That  to  enforce  such  regulations  the  Secretary  of  Commerce  and 
Labor  may  detail  any  public  vessel  in  the  service  of  that  Department  and  make 
use  of  any  private  vessel  tendered  gratuitously  for  the  purpose,  or  upon  the 
request  of  the  Secretary  of  Commerce  and  Labor  the  head  of  any  other  Depart- 
ment may  enforce  the  regulations  issued  under  this  Act  by  means  of  any  public 
vessel  of  such  Department  and  of  any  private  vessel  tendered  gratuitously  for 
the  purpose. 

1300 


Pt.  3.  STATUTES  AT  LARGE.  May  13,  1908. 

Sec.  3.  That  the  authority  and  power  bestowed  upon  the  Secretary  of 
Commerce  and  Labor  by  sections  one  and  two  may  be  transferred  for  any 
special  occasion  to  the  head  of  another  Department  by  the  President  whenever 
in  his  judgment  such  transfer  is  desirable. 

Sec.  4.  That  for  any  violation  of  regulations  issued  pursuant  to  this  Act 
the  following  penalties  shall  be  incurred: 

(a)  A  licensed  officer  shall  be  liable  to  suspension  or  revocation  of  license 
in  the  manner  now  prescribed  by  law  for  incompetency  or  misconduct. 

(b)  Any  person  in  charge  of  the  navigation  of  a  vessel  other  than  a  licensed 
officer  shaU  be  liable  to  a  penalty  of  five  hundred  dollars. 

(c)  The  owner  of  a  vessel  (including  any  corporate  officer  of  a  corporation 
owning  the  vessel)  actually  on  board  shall  be  liable  to  a  penalty  of  five  hundred 
dollars,  unless  the  violation  of  regulations  shall  have  occurred  without  his 
knowledge. 

(d)  Any  other  person  shall  be  liable  to  a  penalty  of  two  hundred  and  fifty 
dollars. 

The  Secretary  of  Commerce  and  Labor  is  hereby  authorized  and  empow- 
ered to  mitigate  or  remit  any  penalty  herein  provided  for  in  the  manner  pre- 
scribed by  law  for  the  mitigation  or  remission  of  penalties  for  violation  of  the 
navigation  laws. ^ — (35  Stat.,  69,  chap.  151.) 


See  section  4233,  Revised  Statutes,  and  laws 
noted  thereunder. 


The  designation  of  the  ' '  Secretary  of  Commerce 
and  Labor"  was  changed  to  "Secretary  of 
Labor"  by  act  of  March  4,  1913  (37  Stat., 

73G). 

[1908,  May  13.  Commissioned  officers,  pay  and  allowances.]  Hereafter 
all  commissioned  officers  of  the  active  list  of  the  Navy  shall  receive  the  same 
pay  and  allowances  according  to  rank  and  length  of  service. — (35  Stat.,  127, 
chap.  166.) 


This  provision  was  repeated  in  identical  lan- 
guage in  the  act  of  August  29,  1916  (39 
Stat.,  581).  In  the  act  of  May  13,  19()8_,  it 
was  restricted  by  a  subsequent  provision 
(35  Stat.,  128),  that  "the  pay  and  allow- 
ances of  chaplains  in  the  Navy  shall  in  no 
case  exceed  that  provided  for  lieutenant- 
commanders."  This  limitation  was  omit- 
ted in  the  act  of  August  29,  1916,  the  effect 
of  which  was  to  give  chaplains  the  same 
pay  and  allowances  as  other  officers  of  the 
Navy  of  corresponding  rank  and  length  of 


service.     (See  note  to  section  1556,  Revised 

Statutes.) 
As  to  allowances  of  officers  of  the  Navy,  see 

section  1558,  Revised  Statutes,  and  note 

thereto. 
For  laws  and  decisions  relating  to  pay  of  officers 

of   the   Navy,   see  section   1556,    Revised 

Statutes,  and  note  thereto. 
For  laws  and  decisions  relating  to  pay  and 

allowances  of  officers  of  the  Marine  Corps, 

see  section   1612,    Revised   Statutes,   and 

note  thereto. 


[1908,  May  13.  Annual  pay  of  grades,  commissioned  officers.]  The  annual 
pay  of  each  grade  shall  be  as  follows:  For  Achniral,  thirteen  thousand  five 
hundred  dollars;  rear-admiral,  first  nine,  eight  thousand  dollars;  rear-admiral, 
second  nine,  or  commodore,  six  thousand  dollars;  captain,  four  thousand  dol- 
lars; commander,  three  thousand  five  hundred  dollars;  lieutenant-commander, 
three  thousand  dollars;  lieutenant,  two  thousand  four  hundred  dollars;  lieu- 
tenant, junior  grade,  two  thousand  dollars;  ensign,  one  thousand  seven  hundred 
dollars.— (35  Stat.,  127-128,  chap.  166.) 

See  note  to  section  1556,  Revised  Statutes. 

[1908,  May  13.  Longevity  pay,  commissioned  officers,  maximum  pay  of 
grades.]     There  shall  be  allowed  and  paid  to  each  commissioned  officer  below 

1301 


May  13,  1908. 


Pi.  3.  STATUTES  AT  LARGE. 


the  rank  of  rear-admiral  ten  per  centum  of  his  current  yearly  pay  for  each  term 
of  live  years  service  in  tlie  Army,  Navy  and  Marine  Corps.  The  total  amount 
of  such  increase  for  length  of  service  shall  in  no  case  exceed  forty  per  centum 
on  the  yearly  pay  of  the  grade  as  provided  by  law:  Provided,  That  the  annual 
pay  of  captain  shall  not  exceed  five  thousand  dollars  per  annum ;  of  commander, 
four  thousand  five  hundred  dollars  per  annum;  and  of  lieutenant-commander, 
four  thousand  dollars  per  annum. —  (35  Stat.,  128,  chap.  166.) 

See  note  to  section  1556,  Re\-ised  Statutes. 

[1908,  May  13.  Additional  pay  for  sea  duty  and  shore  duty  beyond  seas.] 
All  oilicers  on  sea  duty  anil  all  officers  on  shore  duty  beyond  the  continental 
limits  of  the  United  States  shall  while  so  serving  receive  ten  per  centum  addi- 
tional of  their  salaries  and  increase  as  above  provided,  and  such  increase  shall 
commence  from  the  date  of  reporting  for  duty  on  board  ship  or  the  date  of 
sailing  from  the  United  States  for  shore  duty  beyond  the  seas  or  to  join  a  ship 
in  foreign  waters. —  (35  Stat.,  128,  chap.  166.) 

See  notes  to  sections  1556  and  1571,  Revised  Statutes;  and  see  section  1588,  Revised  Statutes, 
and  note  thereto,  as  to  pay  of  retired  officers. 

[1908,  May  13.  Pay  of  midshipmen.]  The  pay  of  midshipmen  shall  here- 
after be  six  hundred  dollars  per  annum  while  at  the  Naval  Academy,  and  one 
thousand  four  hundred  dollars  per  annum  after  graduation  from  the  Naval 
Academy.— (35  Stat.,  128,  chap.  166.) 

See  note  to  section  1556,  Revised  Statutes;  and  see  note  to  section  1520,  Revised  Statutes, 
as  to  academic  course  of  midshii^men. 

[1908,  May  13.  Pay  of  warrant  officers  and  mates.]  The  pay  of  all  warrant 
officers  and  mates  is  hereby  increased  twenty-five  per  centum,  and  all  pay- 
masters' clerks  shall,  while  on  duty,  receive  the  same  pay  and  allowances  as 
warrant  officers  of  like  length  of  service  in  the  Navy. —  (35  Stat.,  128,  chap. 
166.) 


See  note  to  section  1556,  Revised  Statues. 
The  grade  of  paymasters'  clerks  was  abol- 
ished and  the  grades  of  acting  pay  clerk. 


pay  clerk,  and  chief  pay  clerk  created,  by 
act  of  March  3,  1915  (38  Stat.,  942),  noted 
under  section  1386,  Revised  Statutes. 


[1908,  May  13.  Pay  of  enlisted  men.]  The  pay  of  all  active  and  retired 
enlisted  men  of  the  Navy  is  hereby  increased  ten  per  centum. —  (35  Stat.,  128, 
chap.  166.) 

See  note  to  section  1569,  Revised  Statutes. 

[1908,  May  13.  Chiefs  of  bureaus.]  That  the  pay  and  allowances  of  chiefs 
of  bureaus  in  the  Navy  Department  shall  be  the  highest  pay  of  the  grade  to 
which  they  belong,  and  not  below  that  of  rear-admiral  of  the  lower  nine. —  (35 
Stat.,  128^^  chap.  166.) 

By  act  of  July  1,  1918  (40  Stat.,  717),  chiefs  of 
bureaus  in  the  Navy  Department  are  to 
receive  the  same  pay  and  allowances  as 
chiefs  of  bureaus  in  the  War  Department. 

[1908,  May  13.  Pay  of  chaplains.]  That  the  pay  and  allowances  of  chap- 
lains in  the  Navy  shall  in  no  case  exceed  that  provided  for  lieutenant-com- 
manders.—(35  Stat.,  128,  chap.  166.) 


See  notes  to  sections  421  and  1565,   Revised 
Statutes. 


1302 


Pt.  3.  STATUTES  AT  LARGE. 


May  13,  1908. 


This  provision  was  superseded  by  the  act  of 
August  29,  1916  (39  Stat.,  581),  which  re- 
enacted  the  first  clause  of  this  act  as  above 


set  forth,  without  any  limitation  upon  the 
pay  and  allowances  of  chaplains. 
See  note  to  section  1556,  Revised  Statutes. 


[1908,  May  13.  Additional  pay  allowed  aids.]  Aids  to  rear-admirals 
embraced  in  the  nine  lower  numbers  of  that  grade  shall  each  receive  one  hundred 
and  fifty  dollars  additional  per  annum,  and  aids  to  all  other  rear-admirals, 
two  hundred  dollars  additional  per  annum  each. —  (35  Stat.,  128,  chap.  16G.) 

See  note  to  section  1556,  Re\"ised  Statutes,  "Additional  pay  for  special  duty." 

[1908,  May  13.  Retirement  of  officers,  30  years'  service.]  Wlien  an  officer 
of  the  Nav}"  has  been  thirty  years  in  the  service,  he  may,  upon  his  own  applica- 
tion, in  the  discretion  of  the  President,  be  retired  from  active  service  and  placed 
upon  the  retired  list  with  three-fourths  of  the  highest  pay  of  his  grade. —  (35 
Stat.,  128,  chap.  166.) 

By  act  of  May  30,  1908  (35  Stat.,  501),  it  was 
provided  that  "in  computing  the  pay  of 
retired  officers  of  the  Navy,  the  ten  per 
cent  additional  pay  allowed  for  sea  duty 
or  for  shore  duty  beyond  the  continental 
limits  of  the  United  States  shall  not  be 
included,  and  the  pay  of  commodore  shall 
be  the  same  in  all  respects  as  that  of  rear- 
admiral,  second  nine." 

[1908,  May  13.  Chief  of  bureau,  subsequently  retired.]  That  any  officer  of 
the  Navy  who  is  now  serving  or  shall  hereafter  serve  as  chief  of  a  bureau  in  the 
Navy  Department,  and  shall  subsequently  be  retired,  shall  be  retired  with  the 
rank,  pay  and  allowances  authorized  by  law  for  the  retirement  of  such  bureau 
chief.— (35  Stat.,  128,  chap.  166.) 

See  note  to  section  421,  Revised  Statutes, 
under  "VI.  Retirement  of  Chiefs  of  Bu- 
reaus," subheading,  "Rank  on  retirement 

[1908,  May  13.  Pay  of  officers  and  men  on  retired  list.]  The  pay  of  all  com- 
missioned, warrant  and  appointed  officers  and  enlisted  men  of  the  Navy  now 
on  the  retired  list  shall  be  based  on  the  pay,  as  herein  provided  for,  of  commis- 
sioned, warrant  and  api^ointed  officers  and  enlisted  men  of  corresponding  rank 
and  service  on  the  active  list. — -(35  Stat.,  128,  chap.  166.) 


See  generally,  sections  1443-1465,  Revised 
Statutes,  as  to  retirement  of  officers,  and 
sections  1588-1595,  Revised  Statutes,  as 
to  pay  and  allowances  of  retired  officers. 
As  to  retired  officers,  Marine  Corps,  see 
section  1622,  Re\ised  Statutes,  and  note 
thereto. 


of  former  bureau  chief  who  has  returned 
to  general  8er\ice. ' ' 


See  sections  1588-1595,  Revised  Statutes,  and 
notes  thereto,  as  to  pay  of  retired  officers. 

See  section  1569,  Revised  Statutes,  as  to  pay 
of  enlisted  men. 


See  act  of  May  30,  1908  (35  Stat.,  501),  modi- 
fying this  provision,  quoted  above  under 
"Retirement  of  officers,  30  years'  service." 


[1908,  May  13.  Pay  to  continue  until  changed  by  Congress.]  All  pay  herein 
provided  shall  remain  in  force  until  changed  by  Act  of  Congress. —  (35  Stat., 
128,  chap.  166.) 

See  note  to  section  1569,  Re\'ised  Statutes,  as  to  effect  of  this  provision. 

[1908,  May  13.  Present  pay  not  reduced.]  Nothing  herein  shall  be  con- 
strued so  as  to  reduce  the  pay  or  allowances  now  authorized  by  law  for  any 
commissioned,  warrant  or  appointed  officer  or  any  enhsted  man  of  the  active 
or  retired  lists  of  the  Navy,  and  all  laws  inconsistent  with  this  provision  are  here- 
by repealed.— (35  Stat.,  128,  chap.  166.) 

[1908,  May  13.  Nurse  corps,  female.]  The  nurse  corps  (female)  of  the 
United  States  Navy  is  hereby  established,  and  shall  consist  of  one  superintend- 


1303 


May  13,  1908. 


P  t.  3.  STATUTES  AT  LARGE. 


out,  to  be  nppointed  by  the  Secretiiiy  of  the  Navy,  who  shall  be  a  graduate  of  a 
hospital  training  school  having  a  course  of  instruction  of  not  less  than  two 
years,  whose  term  of  office  may  be  terminated  at  his  discretion,  and  of  as  many 
chief  nurses,  nurses,  and  reserve  nurses  as  may  be  needed:  Provided,  That  all 
nurses  in  the  nurse  corps  shall  be  appointed  or  removed  by  the  Surgeon-General, 
with  the  approval  of  the  Secretary  of  the  Navy,  and  that  they  shall  be  graduates 
of  hospital  training  schools  having  a  course  of  instruction  not  less  than  two 
years.  The  appointment  of  superintendent,  chief  nurses,  nurses,  and  reserve 
nurses  shall  be  subject  to  an  examination  as  to  their  professional,  moral,  mental, 
and  physical  fitness,  and  that  they  shall  be  eligible  for  duty  at  naval  hospitals 
and  on  board  of  hospital  and  ambulance  ships  and  for  such  special  duty  as  may 
be  deemed  necessary  by  the  Surgeon-General  of  the  Nav}'^.  Reserve  nurses 
may  be  assigned  to  active  duty  when  the  necessities  of  the  service  demand,  and 
when  on  such  duty  shall  receive  the  pay  and  allowances  of  nurses:  Provided^ 
That  they  shall  receive  no  compensation  except  when  on  active  duty.  The 
superintendent,  chief  nurses,  and  nurses  shall  respectively  receive  the  same  pay, 
allowances,  emoluments,  and  privileges  as  are  now  or  may  hereafter  be  pro- 
vided by  or  in  pursuance  of  law  for  the  nurse  corps  (female)  of  the  Army. — 
(35  Stat.,  146,  chap.  166.) 


See  act  of  August  29,  1916  (39  Stat.,  587-592), 
creating  a  "Naval  Reserve  Force." 


See  note  to  section  1556,  Re\'ised  Statutes,  as 
to  pay  and  allowances  of  nurses. 

[1908,  May  13.  Property  returns,  storekeeper  at  Naval  Academy.]  That 
hereafter  the  storekeeper  at  the  Naval  Academy,  authorized  by  section  fifteen 
hundred  and  twenty-seven  of  the  Revised  Statutes,  shall  render  quarterly 
returns  of  property  to  the  Chief  of  the  Bureau  of  Supplies  and  Accounts,  under 
such  regulations  as  the  Secretary  of  the  Navy  may  prescribe.  A  full  report 
shall  be  made  annually  of  receipts  and  expenditures  by  the  Chief  of  the  Bureau 
of  Supplies  and  Accounts  to  the  Secretary  of  the  Navy:  And  provided  further, 
That  an  inspection  of  the  storekeeper's  accounts  shall  be  made  quarterly  by  the 
general  inspector  of  the  Pay  Corps,  with  such  recommendation  as  he  may  deem 
necessary,  to  the  Chief  of  the  Bureau  of  Supplies  and  Accounts. — (35  Stat.,  153, 
chap.  166.) 


See  note  to  section  1527,  Re\ised  Statutes. 


The  designation  of  the  "Pay  Corps"  was 
changed  to  "Supply  Corps"  by  act  of 
July  11,  1919  (41  Stat.,  147).  • 


[1908,  May  13.  Navy  bands  not  to  compete  with  civilians.]  Navy  bands 
or  members  thereof,  other  tlian  the  United  States  Naval  Academy  band  at 
Annapolis,  Maryland,  shall  not  receive  remuneration  for  furnishing  music 
outside  the  limits  of  military  posts,  when  the  furnishing  of  such  music  places 
them  in  competition  with  local  civilian  musicians. — (35  Stat.,  153,  chap.  166.) 


See  act  of  Junes,  1916,  section  .35  (39  Stat.,  188), 
as  to  restrictions  upon  enlisted  men,  gen- 
erally, competing  with  civilians;  and  act 
August  29,  1916  (39  Stat.,  612),  as  to 
restrictions  upon  Marine  Band. 

See  note  to  section  1511,  Revised  Statutes,  as  to 
Naval  Academy  band. 


See  section  1613,  Revised  Statutes,  and  note 
thereto,  as  to  Marine  Band. 
"Navy  bands"  not  inclusive  of  Marine 
Band. — This  enactment  was  held  not  appli- 
cable to  the  Marine  Band,  in  an  opinion  of  the 
Attorney  General  dated  November  9,  1908. 
(27  Op.  Atty.  Gen.,  90.     See  sec.  1613,  R.  S.) 


[1908,  May  13.  Monitors,  naming  of.]     So  much  of  the  act  entitled  "An 
act  making  appropriations  for  the  naval  service  for  the  fiscal  year  endmg  June 


1304 


PL  3.  STATUTES  AT  LARGE.  May  27,  1908. 

thirtieth,  eighteen  hundred  and  ninetj^-nine,  and  for  other  purposes,"  approved 
May  fourth,  eighteen  hundred  and  ninety-eight,  as  provides  that  monitors 
owned  by  the  United  States  shall  be  named  for  the  States,  and  shall  not  be 
named  for  any  city,  place,  or  person  until  the  names  of  the  States  shall  have 
been  exhausted,  is  hereby  repealed,  and  monitors  now  owned  by  the  United 
States  or  hereafter  built  may  be  named  as  the  President  may  direct. — (35  Stat., 
159,  chap.  166.) 

See  act  of  May  4,  1898  (30  Stat.,  390),  and  see  note  to  section  1531,  Re\T.sed  Statutes. 

[1908,  May  20.  Gifts  to  vessels;  acceptance  and  care  of;  appropriation 
chargeable.]  That  the  Secretary  of  the  Navy  is  hereby  authorized  to  accept 
and  care  for  such  gifts  in  the  form  of  silver,  colors,  books,  or  other  articles  of 
equipment  or  furniture  as,  in  accordance  with  custom,  may  be  presented  to 
vessels  of  the  Navy  by  States,  municipalities,  or  othei-wise.  The  necessary 
expense  incident  to  the  care  and  preservation  of  gifts  of  this  character  which 
have  been  or  may  hereafter  be  accepted  shall  be  defrayed  from  the  appropriation 
"equipment  of  vessels." — (35  Stat.,  171,  chap.  182.) 

See  section  418,  Re\ised  Statutes,  and  note  thereto. 

[1908,  May  22,  sec.  4.  Annual  report,  traveling  expenses  of  employees.] 
It  shall  be  the  duty  of  the  head  of  each  Executive  Department  and  other 
Government  establishment  at  Washington  to  submit  to  Congress  at  the  begin- 
ning of  each  regular  session  a  statement  showing  in  detail  what  officers  or 
employees  (other  than  special  agents,  inspectors,  or  employees,  who  in  the 
discharge  of  their  regular  duties  are  required  to  constantly  travel)  of  such 
Executive  Department  or  other  Government  establishment  have  traveled  on 
official  business  from  Washington  to  points  outside  of  the  District  of  Colunbia 
during  the  preceding  fiscal  year,  giving  in  each  case  the  full  title  of  the  official 
or  employee,  the  destination  or  destinations  of  such  travel,  the  business  or 
work  on  account  of  which  the  same  was  made,  and  the  total  expense  to  the 
United  States  charged  in  each  case.^(35  Stat.,  244,  chap.  186.) 

See  section  429,  Re\ised  Statutes,  and  note  thereto. 

[1908,  May  27.  Deceased  persons,  naval  service;  settlement  of  accounts; 
payment  of  funeral  expenses  to  claimants.]  Hereafter,  in  the  settlement  of  the 
accoimts  of  deceased  officers  or  enlisted  men  of  the  Navy  and  IMarine  Corps, 
whei*e  the  amount  due  the  decedent's  estate  is  less  than  five  hundred  dollars 
and  no  demand  is  presented  by  a  duly  appointed  legal  representative  of  the 
estate,  the  accounting  officers  may  allow  the  amount  found  due  to  the  decedent's 
widow  or  legal  heirs  in  the  following  order  of  precedence:  First,  to  the  widow; 
second,  if  the  decedent  left  no  widow,  or  widow  be  dead  at  time  of  settlement, 
then  to  the  children  or  their  issue,  per  stirpes;  third,  if  no  widow  or  descendants, 
then  to  the  father  and  mother  in  ecjual  parts,  provided  father  has  not  abandoned 
the  support  of  his  family,  in  which  case  to  the  mother  alone;  fourth,  if  either 
the  father  or  mother  be  dead,  then  to  the  one  surviving;  fifth,  if  there  be  no 
widow,  child,  father,  or  mother  at  the  date  of  settlement,  then  to  the  brothers 
and  sisters  and  children  of  deceased  brothers  and  sisters,  per  stirpes:  Provided, 
That  this  Act  shall  not  be  so  construed  as  to  prevent  payment  from  the  amount 

1305 


May  27,  1908. 


Pt.  3.  STATUTES  AT  LARGE. 


See    section    1587,    Revised    Statutes,    as    to 
funeral  expenses. 


due  the  decedent's  estate  of  funeral  expenses,  provided  a  claim  therefor  is  pre- 
sented by  the  person  or  persons  who  actually  paid  the  same  before  settlement 
by  the  accounting  ofTicers. — (35  Stat.,  373,  chap.  200.) 

See  laws  noted  under  section  289,  Re^d8ed 
Statutes. 

See  act  of  I\Iarch  29,  1918  (40  Stat.,  499),  as  to 
disposition  of  money  and  effects  of  de- 
ceased jicrsons  in  naval  service. 

[1908,  May  27.  Navy  mail  clerks  and  assistants.]  That  enlisted  men  of  the 
United  States  Navy  may,  upon  selection  by  the  Secretary  of  the  Navy,  be 
designated  by  the  Post-Office  Department  as  "navy  mail  clerks"  and  "assistant 
navy  mail  clerks,"  who  shall  be  authorized  to  receive  and  open  all  pouches  and 
sacks  of  mail  addressed  to  naval  vessels,  to  make  proper  delivery  of  such  mail,  to 
receive  matter  for  transmission  in  the  mails,  to  receipt  for  registered  matter 
(keeping  an  accurate  record  thereof),  to  keep  and  have  for  sale  an  adequate 
supply  of  postage  stamps,  to  make  up  and  dispatch  mails,  and  other  postal 
duties  as  may  be  authorized  by  the  Postmaster-General,  all  in  accordance  with 
such  rules  and  regulations  as  may  be  prescribed  by  the  commanding  officer  of 
the  vessel  or  of  the  squadron  to  which  the  vessel  is  attached.  Each  mail  clerk 
and  assistant  mail  clerk  shall  take  the  oath  of  office  prescribed  for  employees 
of  the  postal  service  and  shall  give  bond  to  the  United  States  in  the  sum  of  one 
thousand  dollars  for  the  faithful  performance  of  his  duties  as  such  clerk,  and 
shall  be  amenable  in  all  respects  to  naval  discipline,  except  that,  as  to  their 
duties  as  such  clerks,  the  commanding  officers  of  the  vessels  upon  which  they  are 
stationed  shall  require  them  to  be  governed  by  the  postal  laws  and  regulations 
of  the  United  States.  Whenever  necessity  arises  therefor  any  assistant  mail 
clerk  may  be  required  by  the  commanding  officer  of  the  vessel  upon  which  he  is 
stationed  or  of  the  squadron  to  which  said  vessel  is  attached  to  perform  the 
duties  of  mail  clerk.  They  shall  receive  as  compensation  for  such  services  from 
the  Navy  Department,  in  addition  to  that  paid  them  of  the  grade  to  which  they 
are  assigned,  such  sum  in  the  case  of  mail  clerks  not  to  exceed  five  hundred 
dollars  per  annum,  and  in  that  of  assistant  mail  clerks  not  to  exceed  three 
hundred  dollars  per  annum,  as  may  be  determined  and  allowed  by  the  Navy 
Department.— (35  Stat.,  417-418,  chap.  206.) 


Amendments  to  this  pro\'ision  were  made  by- 
various  subsequent  enactments,  as  follows: 

"That  every  Navy  mail  clerk  and  assist- 
ant Navy  mail  clerk  shall  give  bond  to  the 
United  States  in  such  penal  sum  as  the 
Postmaster  General  may  deem  sufficient 
for  the  faithful  performance  of  his  duties 
as  such  clerk."  (Act  Aug.  24,  1912,  sec.  3, 
37  Stat.,   554,   chap.  389.) 

"That  the  provision  in  the  Act  making 
appropriations  for  the  eer\ace  of  the  Post 
Office  Department,  approved  May  twenty- 
seventh,  nineteen  hundi-ed  and  eight, 
authorizing  the  designation  of  enlisted  men 
of  the  Navy  ai  navy  mail  clerks  and 
assistant  navy  mail  clerks,  be  amended  to 
include  in  such  designation  enlisted  men  of 
the  Marine  Corps,  by  the  insertion  in  the 
said  provision,  after  the  words  'United 
States  Navy, '  the  words  '  or  Marine  Corps. ' ' ' 
(Act  of  Aug.  24,  1912,  sec.  11,  37  Stat.,  560, 
chap.  389.) 


"That  the  provisions  of  the  Act  of  May 
twenty-seventh,  nineteen  hundred  and 
eight  (Thirty -fifth  Statutes,  pages  four 
huntlred  and  seventeen  and  four  hundred 
and  eighteen),  as  amended  by  the  Act  of 
August  twenty-fourth,  nineteen  hundred 
and  twelve  (Thirty-seventh  Statutes,  page 
five  hundred  and  sixty),  are  hereby  ex- 
tended to  authorize  the  designation  of  en- 
listed men  of  the  Navy  or  Marine  Corps  as 
Navy  mail  clerks  and  assistant  Navy  mail 
clerks  with  expeditionary  forces  on  shore." 
(Act Mar.  4,  1917,  39  Stat.,  1188,  chap.  180.) 

"That  the  provisions  of  the  Act  of  May 
twenty-seventh,  nineteen  hundred  and 
eight  (Tliirty-fifth  Statutes,  pages  four 
hundred  and  seventeen  and  four  hundred 
and  eighteen),  as  amended  by  the  Act  of 
August  twenty-fourth,  nineteen  hundred 
and  twelve  (Thirty-seventh  Statutes,  page 
five  hunderd  and  sixty),  and  as  amended 
by  the  Act  of  March  foiu'th,  nineteen  hun- 


1306 


PL  3.  STATUTES  AT  LARGE. 


May  30,  1908. 


dred  and  seventeea  (Thirty -ninth  Statutes, 
page  eleven  hundred  and  eighty-eight),  are 
hereby  extended  to  authorize  the  designa- 
tion of  enlisted  men  of  the  Navy  or  Marine 
Corps  as  Navy  mail  clerks  and  assistant 
Navy  mail  clerks  for  duty  at  stations  and 
shore  establishments  under  the  jurisdiction 
of  the  Navy  Department  where  the  services 
of  such  mail  clerks  and  assistant  mail  clerks 
are  necessarv."  (Act  July  1,  1918,  40 
Stat.,  718,  chap.  114.) 
See  note  to  sections  391-392,  Revised  Statutes, 
as  to  oaths  of  mail  clerks  and  assistants;  see 


note  to  section  1383,  Revised  Statutes,  on 
general  subject  of  bonds;  see  note  to  section 
1569,  Revised  Statutes,  under  "8.  Addi- 
tional pay  for  special  duty,  etc.;"  and  see 
note  to  section  236,  Revised  Statutes, 
under  V,  (A),  "Secretary  of  the  Navy," 
subheading,  "The  designation  of  Navy 
mail  clerks."  See  also  section  388,  Re- 
Adsed  Statutes,  and  note  thereto. 
By  section  403,  Revised  Statutes,  it  is  provided 
that  "all  bonds  taken  *  *  *  by  the 
Post-Office  Department  shall  be  made  to 
*    *    *    the  United  States  of  America." 


[1908,  May  28,  sec.  2.  Alaska  coal;  preference  right  to  purchase  for  Army  and 
Navy.]  The  the  United  States  shall,  at  all  times,  have  the  preference  right  to 
purchase  so  much  of  the  product  of  any  mine  or  mines  opened  upon  the  lands 
sold  under  the  provisions  of  this  Act  as  may  be  necessary  for  the  use  of  the 
Army  and  Navy,  and  at  such  reasonable  and  remunerative  price  as  may  be 
fixed  by  the  President;  but  the  producers  of  any  coal  so  purchsed  who  may  be 
dissatisfied  with  the  price  thus  fixed  shall  have  the  right  to  prosecute  suits 
against  the  United  States  in  the  Court  of  Claims  for  the  recovery  of  any  addi- 
tional sum  or  sums  they  may  claiin  as  justly  due  upon  such  purchase. — (35 
Stat.,  424,  chap.  211.) 


See  section  3711,  Revised  Statutes,  and  act  of 
October  20,  1914  (38  Stat.,  741). 


This  section  was  part  of  an  act  "to  encourage 
the  development  of  coal  deposits  in  the 
Territory  of  Alaska." 

[1908,   May  30.  Pay  of  retired  officers,  Navy.]     In  computing  the  pay  of 

retired  officers  of  the  Navy,  the  ten  per  cent  additional  pay  allowed  for  sea  duty 

•or  for  shore  duty  beyond  the  continental  limits  of  the  United  States  shall  not 

be  included,  and  the  pay  of  commodore  shall  be  the  same  in  all  respects  as  that 

of  rear-admiral,  second  nine. — (35  Stat.,  501,  chap.  227.) 

See  act  of  May  13,  1908  (35  Stat.,  128),  and  section  1588,  Re\dsed  Statutes. 

[1908,  May  30.  Estimates  of  employees  to  be  paid  from  lump  sum  appro- 
priations; specific  authorization  required.]  The  Secretary  of  the  Navy  is 
authorized  to  employ  and  pay,  during  the  fiscal  year  nineteen  hundred  and  nine, 
out  of  the  lump  appropriations  of  the  several  bureaus  of  the  Navy  Department, 
such  classified  civil-service  employees  as  may  be  necessary  to  properly  perform 
the  clerical,  drafting,  inspection,  messenger,  and  other  classified  work  at  the 
several  navy-yards  and  stations:  Provided,  That  the  Secretary  of  the  Navy 
shall  submit  to  Congress  detailed  estimates  for  all  such  classified  civil-service 
employees  that  may  be  required  to  be  employed  during  the  fiscal  year  nineteen 
hundred  and  ten,  and  annually  thereafter,  and  no  such  classified  civil-service 
employees  shall  be  employed  during  the  fiscal  year  nineteen  hundred  and  ten, 
or  in  any  subsequent  fiscal  year,  and  paid  from  such  lump  appropriations  except 
under  specific  authorization  granted  by  law  from  year  to  3^ear  based  upon 
estimates  as  herein  required.— (35  Stat.,  505,  chap.  227.) 


See  notes  to  sections  416  and  1545,  Revised 
Statutes;  see  also  acts  of  August  5,  1882, 
section  4  (22  Stat.,  255-256),  and  March  3, 
1909   (35  Stat.,   754-755). 

The  amount  to  be  expended  from  lump  appro- 
priations for  personal  services  at  navy 
yards  and  stations  is  limited  by  provisos 
m  the  annual  naval  appropriation  acts 
under  appropriations  for  the  various  bu- 


reaus of  the  Navy  Department.  (See  act  of 
June4,  1920,  41  Stat.,  816-820,  823, 826,  827.) 
Authority  for  employment  of  personal  services 
in  various  bureaus  of  the  Navy  Depart- 
ment from  lump  appropriations  for  the 
naval  service  is  contained  in  the  annual 
legislative,  executive,  and  judicial  appro- 
priation acts.  (See  act  Mar.  3,  1921,  41 
Stat.,  1285,  1286,  1287.) 


54641°— 22- 


-83 


1307 


Feb.  16,  1909. 


Pi.  3.  STATUTES  AT  LARGE. 


Naval  Courts. 


[1909,  Feb.  16.  Deck  courts,  jurisdiction,  by  whom  ordered.]  That  courts 
for  the  trial  of  eiihsted  men  in  tlie  Navy  and  Marine  Corps  for  minor  offenses 
now  triahlc  hy  summary  court-martial  ma}"  be  ordered  by  the  commanding 
officer  of  a  naval  vessel,  by  the  commandant  of  a  navy-yard  or  station,  by  a 
commanding  officer  of  marines,  or  by  higher  naval  authority. — (35  Stat.,  621, 
chap.   131.) 


Ab  to  designation  of  the  courts  herein  provided 
for,  as  "deck  courts,"  see  section  2  of  this 
act,  set  forth  below. 

Amendment  to  this  section  was  made  by  act 
of  August  29,  1916  (39  Stat.,  586),  which 

8ro^^ded  that  "hereafter  all  officers  of  the 
avy  and  Marine  Corps  "who  are  author- 
ized to  order  either  general  or  summary 
courts-martial  may  order  deck  courts  upon 
enlisted  men  under  their  command,"  and 
that,  when  empowered  by  the  Secretary 
of  the  Navy  to  order  emnmary  courts- 
martial,  "the  commanding  officer  of  a 
naval  hospital  or  hospital  ship  shall  be 
empowered  to  order  such  courts  and  deck 
courts  *  *  *  upon  all  enlisted  men  of 
the  naval  service  attached  thereto,  whether 
for  duty  or  as  patients."  (As  to  officers 
authorized  to  order  general  and  summary 
courts-martial,  see  sec.  1624,  R.  S.,  arts. 


26  and  38,  and  notes  thereto.  As  to  juris- 
diction of  summary  courts-martial,  see 
sec.  1624,  R.  S.,  art.  26.) 

See  section  7  of  this  act,  set  forth  below,  as  to 
objection  by  accused  to  trial  by  deck  court. 

The  act  of  August  29,  1916  (39  Stat.,  586),  fur- 
ther provided  that  "when  a  force  of  ma- 
rines is  embarked  on  a  naval  vessel,  or 
vessels,  as  a  separate  organization,  not  a 
part  of  the  authorized  complement  thereof, 
the  authority  and  powers  of  the  officers  of 
such  separate  organization  of  marines 
shall  be  the  same  as  though  such  organiza- 
tion were  serving  at  a  navy  yard  on  shore, 
but  nothing  herein  shall  be  construed  as 
impairing  the  paramount  authority  of  the 
commanding  officer  of  any  naval  vessel 
over  the  vessel  under  his  command  and  all 
persons   embarked   thereon." 


[1909,  Feb.  16,  sec.  2.  Constitution  of  deck  courts;  oaths;  punishments.] 
That  such  courts  shall  be  known  as  "  deck  courts,"  and  shall  consist  of  one  com- 
missioned officer  only,  who,  while  serving  in  such  capacity  shall  have  power  to 
administer  oaths,  to  hear  and  determine  cases,  and  to  impose,  in  whole  or  in- 
part,  the  punishments  prescribed  by  article  thirty  of  the  Articles  for  the  Govern- 
ment of  the  Navy:  Provided,  That  in  no  case  shall  such  courts  adjudge  dis- 
charge from  the  service  or  adjudge  confinement  of  forfeiture  of  pay  for  a  longer 
period  than  twenty  days. — '(35  Stat.,  621,  chap.  131.) 


For  "article  thirty  of  the  Articles  for  the  Gov- 
ernment of  the  Navy,"  see  section  1624, 
Re\'i8ed  Statutes,  article  30;  and  see  note 
thereto  for  amendatory  statutes. 

By  act  of  October  6,  1917  (40  Stat.,  393-394), 
commissioned  officers  of  certain  auxiliary 
naval  forces  were  authorized  to  serve  on 


naval  courts-martial  and  deck  courts  in 
time  of  war  or  emergency.  (See  that  act 
and  amendments  noted  thereunder.) 
See  section  183,  Re^dsed  Statutes,  and  note 
thereto,  as  to  authority  of  naval  officers  to 
administer  oaths. 


[1909,  Feb.  16,  sec.  3.  Recorder  of  deck  court.]  That  any  person  in  the 
Navy  under  command  of  the  officer  by  whose  order  a  deck  court  is  convened 
may  be  detailed  to  act  as  recorder  thereof. — (35  Stat.,  621,  chap.  131.) 

[1909,  Feb.  16,  sec.  4.  Deck  courts,  reviewing  authority,  mitigation  of 
sentence.]  That  the  officer  within  whose  command  a  deck  court  is  sitting 
shall  have  full  power  as  reviewing  authority  to  remit  or  mitigate,  but  not  to 
commute,  any  sentence  imposed  by  such  court;  but  no  sentence  of  a  deck 
court  shall  be  carried  into  effect  until  it  shall  have  been  so  approved  or  miti- 
gated, and  such  officer  shall  have  power  to  pardon  any  punishment  such  court 
may  adjudge. — (35  Stat.,  621,  chap.  131.) 


See  notes  to  section  1624,  Revised  Statutes, 
under  articles  32-33,  and  53-54;  see  also 
note  to  Constitution,  Article  II,  section  2, 
clause   1,   under  "III.   Power  to  pardon 


offenses  against  United  States;"  and  see 
sections  6,  9,  and  17  of  this  act,  set  forth 
below. 


1308 


Naval  Courts. 


Ft.  3.  STATUTES  AT  LARGE. 


Feb.  16,  1909. 


[1909,  Feb.  16,  sec.  5.  Deck  courts,  regulations  of  the  President.]  That 
the  courts  hereby  authorized  shall  be  governed  in  all  details  of  their  constitu- 
tion, powers,  and  procedure,  except  as  herein  provided,  by  such  rules  and 
regulations  as  the  President  may  prescribe. —  (.35  Stat.,  621,  chap.  131.) 


See  sections  161  and  1547,  Revised  Statutes, 
and  notes  thereto,  on  general  subject  of 
regulations. 


See  section  1624,  Revised  Statutes,  articles 
34  and  42-45,  as  to  the  proceedings  cf 
summary  and  general  courts-martial. 


[1909,  Feb.  16,  sec.  6.  Records  of  deck  courts;  review  by  Judge  Advo- 
cate General ;  action  of  Secretary.]  That  the  records  of  the  proceedings  of  the 
courts  hereby  authorized  shall  contain  such  matters  only  as  are  necessary  to 
enable  the  reviewing  authorities  to  act  intelligently  thereon,  except  that  if  the 
party  accused  demands  it  within  thirty  days  after  the  decision  of  the  deck 
court  shall  become  known  to  him,  the  entire  record  or  so  much  as  he  desires 
shall  be  sent  to  the  reviewing  authority.  Such  records,  after  action  thereon  by 
the  convening  authority,  shall  "be  forwarded  directly  to,  and  shall  be  filed  in, 
the  Office  of  the  Judge-Advocate-General  of  the  Navy,  where  they  shall  be 
reviewed,  and,  when  necessary,  submitted  to  the  Secretary  of  the  Navy  for  his 
action.— (35  Stat.,  621,  chap.   131.) 


See  section  1624,  Revised  Statutes,  articles  34 
and  52,  as  to  records  of  courts-martial;  and 
see  laws  noted  below,  under  section  14  of 
this  act,  aa  to  the  disposal  of  useless  papers. 


See  act  of  June  8,  1880  (21  Stat.,  164),  as  to  the 
duties   of   the   Judge   Advocate   General. 

See  sections  4,  9,  and  17  of  this  act,  as  to 
execution  of  deck  court  sentences. 


[1909,  Feb.  16,  sec.  7.  Objection  to  trial  by  deck  court.]  That  no  person 
who  objects  thereto  shall  be  brought  to  trial  before  a  deck  court.  Where  such 
objection  is  made  by  the  person  accused,  trial  shall  be  ordered  by  summary  or 
by  general  court-martial,  as  may  be  appropriate. — (35  Stat.,  621,  chap.  131.) 


As  to  jurisdiction  of  deck  courts,  see  section  1, 
of  this  act,  set  forth  above;  as  to  summary 


and    general    courts-martial,    see    section 
1624,  Revised  Statutes,  articles  26  and  38. 


[1909,  Feb.  16,  sec.  8.  Punishments  by  summary  courts-martial,  etc. ;  use  of 
irons.]  That  the  courts  authorized  to  impose  the  punishments  prescribed  by 
article  thirty  of  the  Articles  for  the  Government  of  the  Navy  may  adjudge 
either  a  part  or  the  whole,  as  may  be  appropriate,  of  any  one  of  the  punish- 
ments therein  enumerated :  Provided^  That  the  use  of  irons,  single  or  double, 
is  hereby  abolished,  except  for  the  purpose  of  safe  custody  or  when  part  of  a 
sentence  imposed  by  a  general  court-martial. —  (35  Stat.,  621,  chap.  131.) 


Article  thirty  of  the  Articles  for  the  Govern- 
ment of  the  Navy,  which  is  modified  by 
this  section,  is  article  30  of  section  1624, 
Revised  Statutes,  prescribing  punishments 
which  may  be  imposed  by  simimary  courts- 
martial.  By  article  35  of  section  1624, 
Revised  Statutes,  general  courts-martial 
were  empowered  to  adjudge  any  punish- 
ment which  a  siunmary  court-martial  is 


authorized  to  inflict;  by  section  2  of  this 
act,  set  forth  above,  deck  courts  were  also 
authorized  to  impose  such  punishments, 
with  certain  limitations. 
The  use  of  irons  in  the  Navy  had  previously 
been  restricted  by  a  clause  in  the  act  of 
May  13,  1908  (.35  Stat.,  132),  superseded 
bv  this  section. 


[1909,  Feb.  16,  sec.  9.  Secretary  of  the  Navy;  action  on  proceedings  and 
sentences  of  courts-martial.]  That  the  Secretary  of  the  Navy  may  set  aside  the 
proceedings  or  remit  or  mitigate,  in  whole  or  in  part,  the  sentence  imposed  by 
any  naval  court-martial  convened  by  his  order  or  by  that  of  any  officer  of  the 
Navy  or  Marine  Corps. — (35  Stat.,  621,  chap.  131.) 


1309 


Feb.  16,  1909.  Pt.  3.  STATUTES  AT  LARGE.  Naval  Courts. 


See  notes  to  section  1624,  Revised  Statutes, 
under  articles  32-33  and  53-54;  see  also 
act  of  June  8,  1880  (21  Stat.,  164),  as  to 
review  of  court-martial  proceedings  by  the 
Judge  Advocate  Cieneral;  and  see  sections 


4,  6,  and  17  of  this  act  as  to  sentences  of 
deck  courts. 
See  act  of  April  9,  1906,  section  3  (34  Stat., 
104-105),   as  to   review  of  courts-martial 
in  the  cases  of  midshipmen. 


[1909,  Feb.  16,  sec.  10.  General  courts-martial,  by  whom  convened.]  That 
general  courts-martial  may  be  convened  by  the  President,  by  the  Secretary  of 
the  Navy,  by  the  commander  in  chief  of  a  fleet  or  squadron,  and  by  the  com- 
manding officer  of  any  naval  station  beyond  the  continental  limits  of  the  United 
States.— (35  Stat.,  621,  chap.  131.) 

This  section  superseded  article  38  of  section  1624,  Revised  Statutes;  see  note  to  that  article 
for  later  law  on  the  subject. 

[1909,  Feb.  16,  sec.  11.  Witnesses,  naval  courts-martial  and  courts  of  in- 
quiry ;  compulsory  process.]  That  a  naval  court-martial  or  court  of  inquiry  shall 
have  power  to  issue  like  process  to  compel  witnesses  to  appear  and  testify  which 
United  States  courts  of  criminal  jurisdiction  within  the  State,  Territory,  or 
District  where  such  naval  court  shall  be  ordered  to  sit  may  lawfully  issue. — 
(35  Stat.,  621-622,  chap.  131.) 


Revised  Statutes,  and  notes  thereto;  and  see 
note  to  Constitution,  Sixth  Amendment, 
under  "VII.  Compulsory  process  for  ob- 
taining witnesses. ' ' 


See  next  section  of  this  act,  set  forth  below, 

restricting  operation  of  this  section;  and 

see  section  16,  below,  as  to  depositions. 
See  notes  to  section  1624,   Revised  Statutes, 

articles  42  and  57;  see  also  sections  877-881, 

[1909,  Feb.  16,  sec.  12.  Refusal  of  witness  to  appear  or  testify;  punishment; 
fees;  self-incrimination.]  That  any  person  duly  subpoenaed  to  appear  as  a 
witness  before  a  general  court-martial  or  court  of  inquiry  of  the  Navy,  who 
willfully  neglects  or  refuses  to  appear,  or  refuses  to  qualify  as  a  witness  or  to 
testify  or  produce  documentary  evidence,  which  such  person  may  have  been 
legally  subpoenaed  to  produce,  shall  be  deemed  guilty  of  a  misdemeanor,  for 
which  such  person  shall  be  punished  on  information  in  the  district  court  of  the 
United  States;  and  it  shall  be  the  duty  of  the  United  States  District  Attorney, 
on  the  certification  of  the  facts  to  him  by  such  naval  court  to  file  an  information 
against  and  prosecute  the  persons  so  offending,  and  the  punishment  of  such 
person,  on  conviction,  shall  be  a  fine  of  not  more  than  five  hundred  dollars  or 
imprisonment  not  to  exceed  six  months,  or  both,  at  the  discretion  of  the  court: 
Provided,  That  this  shall  not  apply  to  persons  residing  beyond  the  State,  Terri- 
tory, or  District  in  which  such  naval  court  is  held,  and  that  the  fees  of  such 
witnesses  and  his  mileage  at  the  rates  provided  for  witnesses  in  the  United 
States  district  court  for  said  State,  Territory,  or  District  shall  be  duly  paid  or 
tendered  said  witness,  such  amounts  to  be  paid  by  the  Bureau  of  Supplies  and 
Accounts  out  of  the  appropriation  for  compensation  of  witnesses:  Provided 
further,  That  no  witness  shall  be  compelled  to  incriminate  himself  or  to  answer 
any  question  which  may  tend  to  incriminate  or  degrade  him. — (35  Stat.,  622, 
chap.  131.) 


As  to  witness  fees,  see  sections  848-851,  Revised 

Statutes,  and  notes  thereto. 
As  to  refusal  of  witness  to  testify,  see  articles 

42  and  57,  section  1624,  Revised  Statutes. 


As  to  protection  of  witness  against  self-incrimi- 
nation, see  note  to  Constitution,  Fifth 
Amendment,  under  "III.  Compelling  per- 
son to  be  \\'itness  against  himself." 

As  to  depositions  of  witnesses,  see  section  16  of 
this  act,  set  forth  below. 

[1909,  Feb.  16,  sec.  13.  Naval  prisoners,  allowances  to;  clothing  and  gratuity 
on  discharge.]     That  persons  confuied  in  prisons  in  pursuance  of  the  sentence 

1310 


Naval  Courts. 


Pt.  3.  STATUTES  AT  LARGE. 


Feb.  16,  1909. 


of  a  naval  court-martial  shall,  during  such  confinement,  be  allowed  a  reason- 
able sum,  not  to  exceed  three  dollars  per  month,  for  necessary  prison  expenses, 
and  shall  upon  discharge  be  furnished  with  suitable  civilian  clothing  and  paid  a 
gratuity,  not  to  exceed  twenty-five  dollars :  Provided,  That  such  allowances  shall 
be  made  in  amounts  to  be  fixed  by,  and  in  the  discretion  of,  the  Secretary  of 
the  Navy  and  only  in  cases  where  the  prisoners  so  discharged  would  otherwise 
be  unprovided  with  suitable  clothing  or  without  funds  to  meet  their  immediate 
needs.— (35  Stat.,  622,  chap.  131.) 


See  act  of  March  3,  1909  (35  Stat.,  756),  provid- 
ing for  clothing  and  transportation  to  be 
furnished  discharged  naval  prisoners. 

Prior  to  this  enactment  it  was  held  by  the 
Comptroller  of  the  Treasury  that  naval 
prisoners  under  sentence  of  court-martial 
were  entitled,  prior  to  expiration  of  enlist- 
ment, to  credit  for  pay  coming  due  and  not 


forfeited  by  the  sentence  of  the  court;  but 
that  after  expiration  of  enlistment,  al- 
though not  then  discharged,  no  pay  could 
accrue  or  be  credited  to  such  prisoners. 
(See  9  Comp.  Dec,  257,  noted  under  sec. 
1422,  R.  S.,  "Detention  of  enlisted  men 
under  court-martial  sentence.") 


[1909,  Feb.  16,  sec.  14.  Summary  court-martial  proceedings  and  record.] 
That  section  sixteen  hundred  and  twenty-four,  article  thirty-four,  Revised 
Statutes  of  the  United  States,  is  hereby  amended  as  follows:  "The  proceedings 
of  summary  courts-martial  shall  be  conducted  with  as  much  conciseness  and 
precision  as  may  be  consistent  with  the  ends  of  justice,  and  under  such  forms 
and  rules  as  may  be  prescribed  by  the  Secretary  of  the  Navy,  with  the  approval 
of  the  President,  and  all  such  proceedings  shall  be  transmitted  in  the  usual 
mode  to  the  Navy  Department,  where  they  shall  be  kept  on  file  for  a  period  of 
two  years  from  date  of  trial,  after  which  time  they  may  be  destroyed  in  the 
discretion  of  the  Secretary  of  the  Navy." — (35  Stat.,  622,  chap.  131.) 

See  note  to  section  1624,  Revised  Statutes,  article  34;  see  also  acts  of  June  8,  1880  (21  Stat. 
164),  and  February  16,  1889  (25  Stat.,  672),  and  notes  thereunder. 

[1909,  Feb.  16,  sec.  15.  Arrest  of  naval  offenders.]  That  it  shall  be  lawful 
for  any  civil  officer  having  authority  under  the  laws  of  the  United  States  or  of 
any  State,  Territory,  or  District  to  arrest  offenders,  to  summarily  arrest  a 
deserter  from  the  Navy  or  Marine  Corps  of  the  United  States  and  deliver  him 
into  the  custody  of  the  naval  authorities.— (35  Stat.,  622,  chap.  131.) 


See  note  to  Constitution,  Fourth  Amendment, 
under  "Arrest  of  military  offenders;"  and 


see  section  1624,  Revised  Statutes,  article 
43,  and  note  thereto. 


[1909,  Feb.  16,  sec.  16.  Depositions  of  witnesses,  naval  courts.]  That  the 
depositions  of  witnesses  may  be  taken  on  reasonable  notice  to  the  opposite 
party,  and  when  duly  authenticated,  may  be  put  in  evidence  before  naval  courts, 
except  in  capital  cases  and  cases  where  the  punishment  may  be  imprisonment 
or  confinement  for  more  than  one  year  as  follows :  First,  depositions  of  civilian 
witnesses  residing  outside  the  State,  Territory,  or  District  in  which  a  naval 
court  is  ordered  to  sit;  second,  depositions  ot  persons  in  the  naval  or  military 
service  stationed  or  residing  outside  the  State,  Territory,  or  District  in  which  a 
naval  court  is  ordered  to  sit,  or  who  are  under  orders  to  go  outside  of  such 
State,  Territory,  or  District;  third,  where  such  naval  court  is  convened  on 
board  a  vessel  of  the  United  States,  or  at  a  naval  station  not  within  any  State, 
Territory,  or  District  of  the  United  States,  the  depositions  of  witnesses  may  be 
taken  and  used  as  herein  provided  whenever  such  witnesses  reside  or  are  sta- 
tioned at  such  a  distance  from  the  place  where  said  naval  court  is  ordered  to  sit, 


1311 


Mar.  3,  1909.  PL  3.  STATUTES  AT  LARGE. 

or  are  about  to  go  to  such  a  distance  as,  in  the  judgment  of  the  convening 
authority  would  render  it  impracticable  to  secure  their  personal  attendance. — 
(35  Stat.,  622-623,  chap.  131.) 
See  sections  868-874,   Revised  Statutes,  and  tion,  Sixth  Amendment,  under  "VI.  Con- 


notes thereto;  see  also  note  to  Constitu- 


frontin?  witnesses. ' ' 


[1909,  Feb.  16,  sec.  17.  Sentences,  summary  courts-martial  and  deck  courts; 
execution  of.]  That  all  sentences  of  summary  courts-martial  may  be  carried 
into  effect  upon  the  approval  of  the  senior  ofTicer  present,  and  all  sentences  of 
deck  courts  may  be  carried  into  effect  upon  approval  of  the  convening  authority 
or  his  successor  in  office. —  (35  Stat.,  623,  chap.  131.) 


As  to  power  of  Secretary  of  the  Navy  over 
proceedings  and  sentences  of  courts- 
martial,  see  section  9  of  this  act,  set  forth 
above,  and  see  references  thereunder. 


This  section  is  modified,  as  to  sentences  of 

summary  courts-martial,  by  act  of  August 

29,  1916  (39  Stat.,  586);  see  note  to  article 

32  of  section  1624,  Re\'ised  Statutes. 
As  to  sentences  of  deck  courts,  see  sections  4 

and  6  of  this  act,  set  forth  above. 

[1909,  Feb.  16,  sec.  18.  Repeal  of  prior  acts.]  That  all  Acts  or  parts  of 
Acts  inconsistent  herewith  are  hereby  repealed. —  (35  Stat.,  623,  chap.  131.) 

[1909,  Mar.  3.  Army  ordnance  property,  sales  to  naval  officers.]  Articles 
of  ordnance  property  may  be  sold  by  the  Chief  of  Ordnance  to  officers  of  the 
Navy  and  Marine  Corps,  for  their  use  in  the  public  service,  in  the  same  manner 
as  these  articles  are  now  sold  to  officers  of  the  army. —  (35  Stat.,  751,  chap.  252.) 

See  act  of  August  24,  1912  (37  Stat,,  589),  and  laws  noted  thereunder. 

1909,  Mar.  3.  Retirement  for  Civil-War  service.]  The  provisions  of  the 
act  approved  June  twenty-ninth,  nineteen  hundred  and  six,  entitled  "An  act 
making  appropriations  for  the  naval  service  for  the  fiscal  year  ending  June 
thirtieth,  nineteen  hundred  and  seven,  and  for  other  purposes,"  providing  for 
the  retirement  in  the  next  higher  grade  of  officers  of  the  navy  who  served  during 
the  civil  war,  shall  not  operate  to  deprive  any  officer  of  the  navy  who  has  been, 
or  may  be,  retired,  since  the  passage  of  that  act,  of  the  right  to  increased  rank 
and  pay  to  which,  but  for  the  passage  of  said  act,  he  would  have  been  entitled. — 
(35  Stat.,  753,  chap.  255.) 

See  act  of  June  29,  1906  (34  Stat.,  554),  and  act  of  March  3,  1899,  section  11  (30  Stat.,  1007). 

[1909,  Mar.  3.  Estimates  for  "Pay  of  the  Navy."]  The  estimates  for  the 
support  of  the  Navy  shall  hereafter  show,  under  tlie  head  of  Pay  of  the  Navy, 
the  sums  allowed  for  pay  of  officers  belonging  to  the  line,  to  the  several  depart- 
ments of  the  staff,  and  to  the  retired  list;  the  estimates  to  show  under  each 
head  the  amount  allowed  for  pay  proper,  for  increases  due  to  longevity  and 
foreign  service,  and  for  pay  at  sea  rates  to  officers  employed  on  shore ;  togetlier 
with  the  total  number  of  warrant  and  petty  officers  and  seamen  of  the  several 
grades  and  designations,  including  as  to  each  class  the  amount  allowed  for  pay 
proper  and  for  longevity  or  service  increases.  The  estimates  shall  include  a 
list  giving  the  rates  of  pay  for  all  petty  officers  and  other  enlisted  men  of  the 
Navy.— (35  Stat.,  754,  chap.  255.) 

An  identical  provision  was  contained  in  the  act  of  May  13,  1908  (35  Stat.,  129). 

[1909,  Mar.  3.  Pay  and  number  of  employees  at  navy  yards  and  stations; 
annual  report  to  Congress,  etc.]  That  hereafter  the  rates  of  pay  of  the  clerical, 
drafting,  inspection,  and  messenger  force  at  navy-yards  and  naval  stations  and 

1312 


PL  3.  STATUTES  AT  LARGE.  Mar.  3,  1909. 

other  stations  and  offices  under  the  Navy  Department  shall  be  paid  from  lump 
appropriations  and  shall  be  fixed  by  the  Secretary  of  the  Navy  on  a  per  annum 
or  per  diem  basis  as  he  may  elect ;  that  the  number  may  be  increased  or  decreased 
at  his  option  and  shall  be  distributed  at  the  various  navy-yards  and  naval 
stations  by  the  Secretary  of  the  Navy  to  meet  the  needs  of  the  naval  service 
*  *  * ;  that  the  total  amount  expended  annually  for  pay  for  such  clerical, 
drafting,  inspection,  and  messenger  force  shall  not  exceed  the  amounts  specifi- 
cally allowed  by  Congress  under  the  several  lump  appropriations,  and  that  the 
Secretary  of  the  Navj^  shall  each  year,  in  the  annual  estimates,  report  to  Con- 
gress the  number  of  persons  so  employed,  their  duties,  and  the  amount  paid  to 
each.— (35  Stat.,  754-755,  chap.  255.) 

The  omitted  portion  of  this  enactment  relates 
to  leaves  of  absence  allowed  such  employ- 
ees; for  text  thereof,  and  later  laws  relat- 
ing to  such  leaves  of  absence,  see  note  to 
section  1545,  Revised  Statutes. 

The  above  provision  was  followed  by  a  proviso 
in  the  following  language:  "That  it  shall 
be  the  duty  of  the  Secretary  of  the  Navy  to 
submit  to  Congress  at  its  next  session,  and 
for  its  considei-ation,  a  schedule  of  rates  of 
compensation,  annual  or  per  diem,  that 
should,  in  his  judgment,  be  permanently 
fixed  by  law  for  clerical,  inspection,  and 
messenger  service  in  navy-yards,  naval 
stations,  and  purchasing  pay  offices,^  super- 
intending construction  offices,  and  inspec- 
tion of  engineering  material;  and  in  fixing 
such  rates  of  compensation  he  shall  have 


due  regard  for  the  rates  usually  paid  for 
like  services  in  the  respective  localities  by 
employers  other  than  the  United  States, 
and  lie  shall  not  recommend  any  rate 
exceeding  that  being  paid  by  the  United 
States  at  any  such  yards,  stations,  or  offices 
prior  to  January  first,  nineteen  hundred 
and  nine." 

See  act  of  July  16,  1862  (12  Stat.,  587),  provid- 
ing that  the  rates  of  wages  of  employees  in 
navy-yards  shall  conform,  as  nearly  as  is 
consistent  with  the  pubUc  interest,  with 
those  of  private  establishments  in  the 
immediate  vicinity. 

See  section  429,  Revised  Statutes,  and  note 
thereto,  as  to  reports  required  to  be  made 
by  the  Secretary  of  the  Navy;  and  see  act 
of  May  30,  1908  (35  Stat.,  505). 


[1909,  Mar.  3.  Preference  for  employment,  navy  yards  and  stations.]  That 
persons  employed  in  the  clerical,  drafting,  and  inspection  force  at  navy-yards 
and  stations  discharged  for  lack  of  work  or  insufficiency  of  funds  shall  for  one 
year  thereafter  be  preferred  for  employment  in  such  navy-yards  and  stations  in 
the  clerical,  drafting,  inspection,  and  messenger  forces. — (35  Stat.,  755,  chap. 
255.) 

See  sections  1544  and  1754,  Re\ised  Statutes,  and  notes  thereto. 

[1909,  Mar.  3.  Discharg-ed  prisoners;  transportation  and  clothing-.]  That 
the  Secretary  of  the  Navy  is  hereafter  authorized  to  transport  to  their  homes  or 
places  of  enlistment,  as  he  may  designate,  all  discharged  naval  prisoners;  the 
expense  of  such  transportation  shall  be  paid  out  of  any  money  that  may  be  to 
the  credit  of  prisoners  when  discharged;  where  there  is  no  such  money,  the 
expense  shall  be  paid  out  of  money  received  from  fines  and  forfeitures  imposed 
by  naval  courts-martial:  Provided  further,  That  the  Secretary  of  the  Navy  is 
hereby  authorized  to  furnish  naval  prisoners  upon  discharge  suitable  civilian 
clothing  in  case,  and  only  where,  said  discharged  prisoners  would  otherwise  be 
unprovided  with  suitable  clothing  to  meet  their  immediate  needs. —  (35  Stat., 
756,  chap.  255.) 

See  act  of  February  16,  1909,  section  13  (35  Stat.,  622);  and  see  sections  3689  and  4809,  Re- 
vised Statutes,  and  notes  thereto. 

[1909,  Mar.  3.  Sale  of  stores  to  Navy  and  Marine  Corps,  and  civilian  em- 
ployees.] That  hereafter  such  stores  as  the  Secretary  of  the  Navy  may  desig- 
nate may  be  procured  and  sold  to  officers  and  enlisted  men  of  the  Navy  and 

1313 


Mar.  3,  1009. 


Pt.  S.  STATUTES  AT  LARGE. 


Marine  Corps,  also  to  civilian  employees  at  naval  stations  be3'ond  the  continental 
limits  of  the  United  States  and  in  Alaska,  under  such  regulations  as  the  Secre- 
tary of  the  Navy  may  prescribe. —  (35  Stat.,  768,  chap.  255.) 


See  note  to  eectious  418,  1135,  and  1612,  Re- 
vised Statutes;  see  also  acts  of  June  24, 
1910  (36  Stat.,   619),  and  March  4,   1913 


(37  Stat.,  909);  and  see  laws  noted  under 
act  last  cited. 


[1909,  Mar.  3.  Report  to  Congress,  repairs  made  on  vessels.]  That  hereafter 
it  shall  be  the  duty  of  the  Secretary  of  the  Navy  to  report  to  Congress  at  the 
beginning  of  each  regular  session  thereof,  in  addition  to  the  report  directed  to 
be  made  in  the  act  of  March  second,  nineteen  hundred  and  seven,  making  appro- 
priations for  the  naval  service  for  the  fiscal  year  ending  June  thirtieth,  nineteen 
hundred  and  eight,  and  for  other  purposes,  a  detailed  statement  showing  the 
amount  expended  from  each  of  the  appropriations  for  the  repair  of  every  ship 
where  such  repairs  exceed  for  any  one  ship  the  sum  of  two  hundred  thousand 
dollars  in  any  one  fiscal  year. — (35  Stat.,  769,  chap.  255.) 

See  act  of  March  2,  1907  (34  Stat.,  1195),  and  see  note  to  section  1538,  Revised  Statutes.     See 
also  section  429,  Revised  Statutes,  and  note  thereto. 

[1909,  Mar.  3.  Warrant  machinists,  title  changed  to  machinist;  promotion 
to  chief  machinists.]  The  title  of  warrant  machinist  is  hereby  changed  to 
machinist;  and  all  machinists  shall,  after  six  years  from  date  of  warrant,  be 
commissioned  chief  machinists,  to  rank  with,  but  after,  ensign,  and  shall,  on 
promotion,  have  the  same  pay  and  allowances  as  are  allowed  chief  boatswains, 
chief  gunners,  chief  carpenters,  and  chief  sailmakers,  and  no  machinist  shall  be 
promoted  until  he  shall  have  passed  such  examination  before  a  board  as  the 
Secretary  of  the  Navy  may  prescribe. —  (35  Stat.,  771,  chap.  255.) 

See  notes  to  sections  1405,  1556,  1588,  and  1592,  Revised  Statutes. 

[1909,  Mar.  3.  Warrant  officers,  promotion  not  to  reduce  pay.]  No  warrant 
officer,  heretofore  or  hereafter  promoted  six  years  from  date  of  warrant,  shall 
suffer  a  reduction  in  pay  which,  but  for  such  promotion,  would  have  been 
received  by  him. — (35  Stat.,  771,  chap.  255.) 

See  notes  to  sections  1405,  1556,  1588,  and  1592,  Re\d8ed  Statutes. 

[1909,  Mar.  3.  Commissioned  warrant  officers,  appointment  as  ensigns.] 
That  chief  boatswains,  chief  gunners,  and  chief  machinists  shall  be  eligible  for 
appointment  to  the  grade  of  ensign  under  the  restrictions  imposed  by  law  upon 
the  appointment  of  boatswains,  gunners,  and  warrant  machinists  to  that  grade. — 
(35  Stat.,  771,  chap.  255.) 

See  notes  to  sections  1405  and  1491,  Revised  Statutes. 

[1909,  Mar.  3.  Naval  Academy  chapel,  use  of  for  memorials.]  The  crypt 
and  window  spaces  of  the  United  States  Naval  Academy  chapel  are  to  be  used 
only  for  memorials  to  United  States  naval  officers  who  have  successfully  com- 
manded a  fleet  or  squadron  in  battle,  or  who  have  received  or  may  receive  the 
thanks  of  the  Congress  of  the  United  States  for  conspicuously  distinguished 
services  in  time  of  war,  and  no  memorial  shall  be  accepted  for  or  installed  in 
said  crypt  or  window  spaces  until  at  least  five  years  after  the  death  of  the  officer 
in  question :  Provided,  That  nothing  in  this  provision  shall  be  considered  as 
invalidating  any  agreement  made  by  the  present  or  any  former  superintendent 


1314 


PL  3.  STATUTES  AT  LARGE.  Mar.  4,  1909. 

of  the  Naval  Academy,  authorizing  a  memorial  window  in  the  old  Naval 
Academy  chapel  to  be  transferred  to  the  new  Naval  Academy  chapel. —  (.35 
Stat.,  773,  chap.  25.5.) 

See  act  of  March  4,  1921  (41  Stat.,  1440). 

[1909,  Mar.  3.  Traveling  expense  claims,  shortest  usually  traveled  route.] 
Pay,  ^Iarine  Corps  *  *  *  That  hereafter  the  settlement  of  all  traveling 
expense  claims,  where  the  payment  of  such  is  authorized  by  existing  law,  and  the 
determination  of  distances  and  of  what  constitutes  the  shortest  usually  traveled 
route  in  the  meaning  of  laws  relating  to  traveling  allowances,  shall  accord  to 
such  rules  as  the  Secretary  of  the  Navy  may  prescribe. — (35  Stat.,  774,  chap. 
255.) 

See  sections  1566  and  1612,  Re\'i8ed  Statutes,  and  notes  thereto. 

[1909,  Mar.  3.  Extra-duty  pay,  Marine  Corps.]  That  hereafter  extra-duty 
pay  will  not  be  allowed  to  enlisted  men  of  the  IVlarine  Corps  except  when  they 
are  regularly  detailed  thereon  by  a  written  order  of  the  commandant  of  the 
corps. — (35  Stat.,  776,  chap.  255.) 

See  note  to  section  1612,  Revised  Statutes. 

[1909,  Mar.  4,  sec.  4.  Estimates,  form  and  arrangement  of.]  When  esti- 
mates hereafter  transmitted  to  the  Treasury  for  submission  to  Congress  do  not 
in  form  and  arrangement  comply  with  the  provisions  of  section  four  of  the 
legislative,  executive,  and  judicial  appropriation  Act,  approved  June  twenty- 
second,  nineteen  hundred  and  six,  they  shall,  under  direction  of  the  Secretary 
of  the  Treasury,  be  rearranged  so  as  to  comply  with  said  requirements  of  law. — 
(35  Stat.,  907,  chap.  297.) 


See  act  of  June  22,  1906,  section  4  (34  Stat.. 


Revised  Statutes,  and  act  of  August  23, 


448-449);  see  also  sections  430  and  36G0,  1912,  section  9  (37  Stat.,  415.) 

[1909,  Mar.  4,  sec.  7.  Estimates;  reduction;  additional  revenues  required.] 
Immediately  upon  the  receipt  of  the  regular  annual  estimates  of  appropriations 
needed  for  the  various  branches  of  the  Government  it  shall  be  the  duty  of  the 
Secretary  of  the  Treasury  to  estimate  as  nearly  as  may  be  the  revenues  of  the 
Government  for  the  ensuing  fiscal  year,  and  if  the  estimates  for  appropriations, 
including  the  estimated  amount  necessary  to  meet  all  continuing  and  perma- 
nent appropriations,  shall  exceed  the  estimated  revenues  the  Secretary  of  the 
Treasury  shall  transmit  the  estimates  to  Congress  as  heretofore  required  by 
law  and  at  once  transmit  a  detailed  statement  of  all  of  said  estimates  to  the 
President,  to  the  end  that  he  may,  in  giving  Congress  information  of  the  state 
of  the  Union  and  in  recommending  to  their  consideration  such  measures  as  he 
may  judge  necessary,  advise  the  Congress  how  in  his  judgment  the  estimated 
appropriations  could  with  least  injury  to  the  public  service  be  reduced  so  as  to 
bring  the  appropriations  within  the  estimated  revenues,  or,  if  such  reduction 
be  not  in  his  judgment  practicable  without  undue  injury  to  the  public  service, 
that  he  may  recommend  to  Congress  such  loans  or  new  taxes  as  maj^  be  necessary 
to  cover  the  deficiency. — (35  Stat.,  1027,  chap.  299.) 

See  note  to  section  430,  Re%-i8ed  Statutes. 

[1909,  Mar.  4,  sec.  8.  Disbursing  clerks;  temporary  absence;  substitute.] 
In  case  of  the  sickness  or  unavoidable  absence  of  any  disbursing  clerk  or  dis- 

1315 


Mar.  4,  1909.  Pt.  3.  STATUTES  AT  LARGE.  Criminal  Code. 

bursing  agent  of  any  executive  department,  independent  bureau,  or  office,  in 
Washington,  District  of  Columbia,  he  may,  with  the  approval  of  the  head  of 
the  department,  independent  bureau,  or  oilice,  in  which  said  disbursing  clerk 
or  agent  is  employed,  authorize  the  clerk  of  highest  grade  employed  therein 
to  act  in  his  place,  and  to  discharge  all  the  duties  by  law  or  regulations  of  such 
disbursing  clerk  or  agent.  The  official  bond  given  by  the  principal  of  the 
office  shall  be  held  to  cover  and  apply  to  the  acts  of  the  person  appointed  to 
act  in  his  place  in  such  cases.  Such  acting  officer  shall,  moreover,  for  the  time 
being,  be  subject  to  all  the  liabilities  and  penalties  prescribed  by  law  for  the 
official  misconduct  in  like  cases,  of  the  disbursing  clerk  or  disbursing  agent, 
respectively,  for  whom  he  acts,  and  such  acting  officer  shall  be  required  by  the 
head  of  the  department,  independent  bureau,  or  office,  to  give  bond  to  and  in 
such  sum  as  the  disbursing  clerk  or  disbursing  agent  may  require. — (35  Stat., 
1027,  chap.  299.) 

See  notes  to  sections  176  and  1383,  Revised  Statutes. 

[1909,  Mar.  4,  sec.  9.  Expenses  of  unauthorized  boards,  commissions,  etc.] 
That  hereafter  no  part  of  the  public  moneys,  or  of  any  appropriation  heretofore 
or  hereafter  made  by  Congress,  shall  be  used  for  the  payment  of  compensation 
or  expenses  of  any  commission,  council,  board,  or  other  similar  body,  or  any 
members  thereof,  or  for  expenses  in  connection  with  any  work  or  the  results  of 
any  work  or  action  of  any  commission,  council,  board,  or  other  similar  body, 
unless  the  creation  of  the  same  shall  be  or  shall  have  been  authorized  by  law; 
nor  shall  there  be  employed  by  detail,  hereafter  or  heretofore  made,  or  other- 
wise personal  services  from  any  executive  department  or  other  government 
establishment  in  connection  with  any  such  commission,  council,  board,  or 
other  similar  body. — (35  Stat.,  1027,  chap.  299.) 

See  section  3681,  Revised  Statutes. 

[1909,  Mar.  4.  The  Criminal  Code.]  That  the  penal  laws  of  the  United 
States  be,  and  they  hereby  are,  codified,  revised,  and  amended,  with  title, 
chapters,  headnotes,  and  sections,  entitled,  numbered,  and  to  read  as  follows: — 
(35  Stat.,  1088,  chap.  321.) 

See  section  1624,  Revised  Statutes,  article  22,  and  note  thereto. 

CRIMES. 

Chapter  One. 

offenses  against  the  existence  of  the  government. 


Sec. 

1.  Treason. 

2.  Punishment  of  treason. 

3.  Misprision  of  treason. 

4.  Inciting  or  engaging  in  rebellion  or  insur- 

rection. 

5.  Criminal  correspondence  with  foreign  gov- 

ernments. 


Sec. 

6.  Seditious  conspiracy. 

7 .  Recruiting  soldiers  or  sailors  to  serve  against 

the  United  States. 

8.  Enlistment    to    serve    against    the    United 

States. 


Sec.  1.  [Treason  defined.]     Whoever,  owing  allegiance  to  the  United 
vStates,  levies  war  agamst  them  or  adheres  to  their  enemies,  giving  them  aid  and 
comfort  withm  the  United  States  or  elsewhere,  is  guilty  of  treason. — (35  Stat., 
1088;  sec.  5331,  R.  S.) 

1316 


Criminal  Code.  Pt.  3.  STATUTES  AT  LARGE.  Mar.  4,  1909. 

wSec.  2.  [Punishment  of  treason.]  Whoever  is  convicted  of  treason 
shall  suffer  death;  or,  at  the  discretion  of  the  court,  shall  be  imprisoned  not  less 
than  five  years  and  fined  not  less  than  ten  thousand  dollars,  to  be  levied  on  and 
collected  out  of  any  or  all  of  his  property,  real  and  personal,  of  which  he  was 
the  owner  at  the  time  of  committing  such  treason,  any  sale  or  conveyance  to 
the  contrary  notwithstanding;  and  every  person  so  convicted  of  treason  shall, 
moreover,  be  incapable  of  holding  any  office  under  the  United  States.— (35 
Stat.,  1088;  sec.  5332,  R.  S.) 

Sec.  3.  [Misprision  of  treason  defined.]  Whoever,  owing  allegiance  to 
the  United  States  and  having  knowledge  of  the  commission  of  any  treason 
agamst  them,  conceals  and  does  not,  as  soon  as  may  be,  disclose  and  make 
known  the  same  to  the  President  or  to  some  judge  of  the  United  States,  or  to 
the  governor  or  to  some  judge  or  justice  of  a  particular  State,  is  guilty  of  mis- 
prision of  treason  and  shall  be  imprisoned  not  more  than  seven  years  and 
fined  not  more  than  one  thousand  dollars. — (35  Stat.,  1088;  sec.  5333,  R.  S.) 

Sec.  4.  [Inciting,  etc.,  rebellion  or  insurrection.]  Whoever  incites, 
sets  on  foot,  assists,  or  engages  in  any  rebellion  or  insurrection  against  the 
authority  of  the  United  States  or  the  laws  thereof,  or  gives  aid  or  comfort 
thereto,  shall  be  imprisoned  not  more  than  ten  years,  or  fined  not  more  than 
ten  thousand  dollars,  or  both;  and  shall,  moreover,  be  incapable  of  holding  any 
office  under  the  United  States.— (35  Stat.,  1088;  sec.  5334,  R.  S.) 

Sec.  5.  [Criminal  correspondence  with  foreign  governments.] 
Every  citizen  of  the  United  States,  whether  actually  resident  or  abiding  within 
the  same,  or  in  any  place  subject  to  the  jurisdiction  thereof,  or  in  any  foreign 
country,  without  the  permission  or  authority  of  the  Government,  directly  or 
indirectly,  commences  or  carries  on  any  verbal  or  written  correspondence  or 
intercourse  with  any  foreign  Government  or  any  officer  or  agent  thereof, 
with  an  intent  to  influence  the  measures  or  conduct  of  any  foreign  Government 
or  of  any  officer  or  agent  thereof  in  relation  to  any  disputes  or  controversies 
with  the  United  States  or  to  defeat  the  measures  of  the  Government  of  the 
United  States;  and  every  person,  bemg  a  citizen  of  or  resident  within  the  United 
States  or  in  any  place  subject  to  the  jurisdiction  thereof,  and  not  duly  authorized, 
counsels,  advises,  or  assists  in  any  such  correspondence  with  such  intent,  shall 
be  fined  not  more  than  five  thousand  dollars  and  imprisoned  not  more  than 
three  years;  but  nothing  in  this  section  shall  be  construed  to  abridge  the  right 
of  a  citizen  to  apply,  hunself  or  his  agent,  to  any  foreign  government  or  the 
agents  thereof  for  redress  of  any  injury  which  he  may  have  sustained  from  such 
government  or  any  of  its  agents  or  subjects. — (35  Stat.,  1088-1089;  sec.  5335, 
R.  S.) 

Sec.  6.  [Seditious  consplracy.]  If  two  or  more  persons  in  any  State  or 
Territory,  or  in  any  place  subject  to  the  jurisdiction  of  the  United  States, 
conspire  to  overthrow,  put  down,  or  to  destroy  by  force  the  Government  of 
the  United  States,  or  to  levy  war  against  them,  or  to  oppose  by  force  the  authority 
thereof,  or  by  force  to  prevent,  hinder,  or  delay  the  execution  of  any  law  of  the 
United  States,  or  by  force  to  seize,  take,  or  possess  any  property  of  the  United 
States  contrary  to  the  authority  thereof,  they  shall  each  be  fined  not  more  than 
five  thousand  dollars  or  imprisoned  not  more  than  six  years,  or  both. — -(35 
Stat.,  1089;  sec.  5336,  R.  S.) 

1317 


Mar.  4,  1909.  Pt.  S.  STATUTES  AT  LARGE.  Criminal  Code. 


excluded  from  readmission  to  the  United 
States. 


By  act  of  May  10,  1!>20  (41  Stat.,  593-594),  it 
was  provided  tliat  any  alien  convicted  of 
violating  this  section  shall  be  deported  and 

Sec.  7.  [Recruiting  for  service  against  United  States.]  Whoever 
recruits  soldiers  or  sailors  within  the  United  States,  or  in  any  place  subject  to 
the  jurisdiction  thereof,  to  engage  hi  armed  hostility  against  the  same,  or 
opens  within  the  United  States,  or  in  any  place  subject  to  the  jurisdiction 
thereof,  a  recruiting  station  for  the  enlistment  of  such  soldiers  or  sailors  to  serve 
m  any  manner  in  armed  hostility  against  the  United  States,  shall  be  fined  not 
more  than  one  thousand  dollars  and  imprisoned  not  more  than  five  years. — 
(35  Stat.,  1089;  sec.  5337,  R.  S.) 

Sec.  8.  [Enlisting  to  serve  against  United  States.]  Every  person 
enlisted  or  engaged  within  the  United  States  or  in  any  place  subject  to  the  juris- 
diction thereof,  with  intent  to  serve  in  armed  hostility  against  the  United  States, 
shall  be  fined  one  hundred  dollars  and  imprisoned  not  more  than  three  years. — 
(35  Stat.,  1089;  sec.  5338,  R.  S.) 

Chapter  Two. 

offenses  against  neutrality. 


Sec. 
9.  Accepting  a  foreign  commission. 

10.  Enlisting  in  foreign  service. 

11.  Arming  vessels  against  people  at  peace  with 

the  United  States. 

12.  Augmenting  force  of  foreign  vessel  of  war. 


Sec. 

13.  Military  expeditions  against  people  at  peace 

with  the  United  States. 

14.  Enforcement  of  foregoing  provisions. 

15.  Compelling  foreign  vessels  to  dei^art. 
18.  Construction  of  this  chapter. 


Sec.  9.  [Accepting  foreign  commission  to  serve  against  friendly 
power.]  Every  citizen  of  the  United  States  who,  within  the  territory  or  juris- 
diction thereof,  accepts  and  exercises  a  commission  to  serve  a  foreign  prince, 
state,  colony,  district,  or  people,  in  war,  by  land  or  by  sea,  against  any  prince, 
state,  colony,  district,  or  people,  with  whom  the  United  States  are  at  peace, 
shall  be  fined  not  more  than  two  thousand  dollars  and  imprisoned  not  more 
than  three  years.— (35  Stat.,  1089;  sec.  5281,  R.  S.) 

Sec.  10.  [Enlisting,  etc.,  in  foreign  service  within  United  States.] 
Whoever,  within  the  territory  or  jurisdiction  of  the  United  States,  enlists  or 
enters  himself,  or  hires  or  retains  another  person  to  enlist  or  enter  himself,  or 
to  go  beyond  the  limits  or  jurisdiction  of  the  United  States  with  intent  to  be 
enlisted  or  entered  in  the  service  of  any  foreign  prince.  State,  colony,  district, 
or  people  as  a  soldier  or  as  a  marine  or  seaman  on  board  of  any  vessel  of  war, 
letter  of  marque,  or  privateer  shall  be  fined  not  more  than  $1,000  and  imprisoned 
not  more  than  three  years:  Provided,  That  this  section  shall  not  apply  to 
citizens  or  subjects  of  any  country  engaged  in  war  with  a  country  with  which  the 
United  States  is  at  war,  unless  such  citizen  or  subject  of  such  foreign  country 
shall  hire  or  solicit  a  citizen  of  the  United  States  to  enlist  or  go  beyond  the  juris- 
diction of  the  United  States  with  intent  to  enlist  or  enter  the  service  of  a  foreign 
country.  Enlistments  under  this  proviso  shall  be  under  regulations  prescribed 
by  the  Secretary  of  War.— (35  Stat.,  1089-1090;  40  Stat.,  39-40;  sec.  5282, 
R.  S.) 

This  section  of  the  Penal  Code  was  expressly  amended  and  reenacted  to  read  as  above  by 
act  of  May  7,  1917  (40  Stat.,  39). 

1318 


Criminal  Code. 


Pt.3.  STATUTES  AT  LARGE. 


Mar.  4,  1909. 


Sec.  11.  [Arming  VESSELS  AGAINST  FRIENDLY  POWERS.]  Whoever,  within 
the  territory  or  jurisdiction  of  the  United  States,  fits  out  and  arms,  or  attempts 
to  fit  out  and  arm,  or  procures  to  be  fitted  out  and  armed,  or  knowingly  is  con- 
cerned in  the  furnishing,  fitting  out,  or  arming  of  any  vessel,  with  intent  that 
such  vessel  shall  be  employed  in  the  service  of  any  foreign  prince  or  state,  or  of 
any  colony,  district,  or  people,  to  cruise  or  commit  hostilities  against  the  sub- 
jects, citizens,  or  property  of  any  foreign  prince  or  state,  or  of  any  colony, 
district,  or  people,  with  whom  the  United  States  are  at  peace,  or  whoever 
issues  or  delivers  a  commission  within  the  territory  or  jurisdiction  of  the  United 
States  for  any  vessel,  to  the  intent  that  she  may  be  so  employed,  shall  be  fined 
not  more  than  ten  thousand  dollars  and  imprisoned  not  more  than  three  years. 
And  every  such  vessel,  her  tackle,  apparel,  and  furniture,  together  with  all 
materials,  arms,  ammunition,  and  stores  which  may  have  been  procured  for 
the  building  and  equipment  thereof,  shall  be  forfeited;  one  half  to  the  use  of  the 
informer  and  the  other  half  to  the  use  of  the  United  States. — (35  Stat.,  1090; 
sec.  5283,  R.  S.) 

Sec.  12.  [Augmenting  force  of  foreign  armed  vessel.]  Whoever, 
within  the  territory  or  jurisdiction  of  the  United  States,  increases  or  augments, 
or  procures  to  be  increased  or  augmented,  or  knowingly  is  concerned  in  increas- 
ing or  augmenting,  the  force  of  any  ship  of  war,  cruiser,  or  other  armed  vessel 
which,  at  the  time  of  her  arrival  within  the  United  States,  was  a  ship  of  war,  or 
cruiser,  or  armed  vessel,  in  the  service  of  any  foreign  prince  or  state,  or  of  any 
colony,  district,  or  people,  or  belonging  to  the  subjects  or  citizens  of  any  such 
prince  or  state,  colony,  district,  or  people,  the  same  being  at  war  with  any 
foreign  prince  or  state,  or  of  any  colony,  district,  or  people,  with  whom  the 
United  States  are  at  peace,  by  adding  to  the  number  of  the  guns  of  such  vessel, 
or  by  changing  those  on  board  of  her  for  guns  of  a  larger  caliber,  or  by  adding 
thereto  any  equipment  solely  applicable  to  war,  shall  be  fined  not  more  than 
one  thousand  dollars  and  imprisoned  not  more  than  one  year. — (35  Stat.,  1090; 
Sec.  5285,  R.  S.) 

Sec.  13.  [Organizing  military  or  naval  expedition  against  friendly 
POWER.]  Whoever,  within  the  territory  or  jurisdiction  of  the  United  States  or 
of  any  of  its  possessions,  knowingly  begins  or  sets  on  foot  or  provides  or  prepares 
a  means  for  or  furnishes  the  money  for,  or  wlio  takes  part  in,  any  military  or 
naval  expedition  or  enterprise  to  be  carried  on  from  thence  against  the  terri- 
tory or  dominion  of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or 
people  with  whom  the  United  States  is  at  peace,  shall  be  fined  not  more  than 
$3,000  or  imprisoned  not  more  than  three  years,  or  both. — (35  Stat.,  1090; 
40  Stat.,  223;  sec.  5286,  R.  S.) 


This  section  was  expressly  amended  and  reen- 
acted  to  read  as  above  by  act  of  June  15, 
1917,  section  8  (40  Stat.,  223).  By  section 
9  of  said  act  (40  Stat.,  223),  it  was  provided 


"that  the  President  may  employ  such  part 
of  the  land  or  naval  forces  of  the  United 
States  as  he  may  deem  necessary  to  carry 
out  the  purposes  of  this  title. " 


Sec.  14.  [Enforcement  of  foregoing  sections;  captures;  use  of 
naval  forces.]  The  district  courts  shall  take  cognizance  of  all  complaints,  by 
whomsoever  instituted,  in  cases  of  captures  made  within  the  waters  of  the 
United  States,  or  ^vithin  a  marine  league  of  the  coasts  or  shores  thereof.     In 


1319 


Mar.  4,  1909.  Pt.  3.  STATUTES  AT  LARGE.  Criminal  Code. 

every  case  in  which  a  vessel  is  fitted  out  and  armed,  or  attempted  to  be  fitted 
out  and  armed,  or  in  which  tlie  force  of  any  vessel  of  war,  cruiser,  or  other  armed 
vessel  is  increased  or  augmented,  or  in  which  any  military  expedition  or  enter- 
prise is  begun  or  set  on  foot,  contrary  to  the  provisions  and  prohibitions  of 
this  chapter;  and  in  every  case  of  the  capture  of  a  vessel  within  the  jurisdiction 
or  protection  of  the  United  States  as  before  defined;  and  in  every  case  in  which 
any  process  issuing  out  of  any  court  of  the  United  States  is  disobeyed  or  resisted 
by  any  person  having  the  custody  of  any  vessel  of  war,  cruiser,  or  other  armed 
vessel  of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or  people,  or  of 
any  subjects  or  citizens  of  any  foreign  prince  or  state,  or  of  any  colony,  district, 
or  people,  it  shall  be  lawful  for  the  President,  or  such  other  person  as  he  shall 
have  empowered  for  that  purpose,  to  employ  such  part  of  the  land  or  naval 
forces  of  the  United  States,  or  of  the  militia  thereof,  for  the  purpose  of  taking 
possession  of  and  detaining  any  such  vessel,  with  her  prizes,  if  any,  in  order 
to  enforce  the  execution  of  the  prohibitions  and  penalties  of  this  chapter,  and 
the  restoring  of  such  prizes  in  the  cases  in  which  restoration  shall  be  adjudged; 
and  also  for  the  purpose  of  preventing  the  carrying  on  of  any  such  expedition 
or  enterprise  from  the  territory  or  jurisdiction  of  the  United  States  against 
the  territory  or  dominion  of  any  foreign  prince  or  state,  or  of  any  colony,  dis- 
trict, or  people  with  whom  the  United  States  are  at  peace. — (35  Stat.,  1090; 
sec.  5287,  R.  S.) 

Sec.  15.  [Compelling  or  preventing  departure  of  vessels;  use  of 
NAVAL  forces.]  It  shall  be  lawful  for  the  President  to  employ  such  part  of 
the  land  or  naval  forces  of  the  United  States,  or  of  the  militia  thereof,  as  he 
may  deem  necessary  to  compel  any  foreign  vessel  to  depart  from  the  United 
States  or  any  of  its  possessions  in  all  cases  in  which,  by  the  law  of  nations  or 
the  treaties  of  the  United  States,  it  ought  not  to  remain,  and  to  detain  or  prevent 
any  foreign  vessel  from  so  departing  in  all  cases  in  which,  by  the  law  of  nations 
or  the  treaties  of  the  United  States,  it  is  not  entitled  to  depart. — (35  Stat.,  1091 ; 
40  Stat.,  223;  sec.  5288,  R.  S.) 

This  section  was  expressly  amended  and  reen-       For  other  provisions  of  law  on  this  subject,  see 
acted  to  read  as  above  by  act  of  June  15,  act  of  June  15,  1917  (40  Stat.,  221-223). 

1917,  section  10  (40  Stat.,  223).  See  also 
note  to  section  13  of  the  Criminal  Code,  set 
forth  above. 

Sec.  18.  [Construction  of  this  chapter.]  The  provisions  of  this  chapter 
shall  not  be  construed  to  extend  to  any  subject  or  citizen  of  any  foreign  prince, 
state,  colony,  district,  or  people  who  is  transiently  within  the  United  States  and 
enlists  or  enters  himself  on  board  of  any  vessel  of  war,  letter  of  marque,  or 
privateer,  which  at  the  time  of  its  arrival  within  the  United  States  was  fitted 
and  equipped  as  such,  or  hires  or  retains  another  subject  or  citizen  of  the  same 
foreign  prince,  state,  colony,  district,  or  people  who  is  transiently  within  the 
United  States  to  enlist  or  enter  himself  to  serve  such  foreign  prince,  state, 
colony,  district,  or  people  on  board  such  vessel  of  war,  letter  of  marque,  or 
privateer,  if  the  United  States  shall  then  be  at  peace  with  such  foreign  prince, 
state,  colony,  district,  or  people.  Nor  shall  they  be  construed  to  prevent  the 
prosecution  or  punishment  of  treason,  or  of  any  piracy  defined  by  the  laws  of 
the  United  States.— (35  Stat.,  1091;  sec.  5291,  R.  S.) 


1320 


Criminal  Code.  Pt.  3.  STATUTES  AT  LARGE.  Mar.  4,  1909. 

Chapter  Three, 
offenses  against  the  elective  franchise  and  civil  rights  of  citizens. 


Sec. 

22.  Unlawful  presence  of  troops  at  elections. 

23.  Intimidation  of  voters  by  officers,  etc.,  of 

Army  or  Navy. 

24.  Officers  of  Army  or  Navy  prescribing  quali- 

fications of  voters. 


Sec. 

25.  Officers,  etc.,  of  Army  or  Navy  interfering 

with  officers  of  election,  etc. 

26.  Persons  disqualified  from  holding  office; 

when  soldiers,  etc.,  may  vote. 


Sec.  22.  [Unlawful  presence  of  troops  at  polls.]  Every  officer  of  the 
Army  or  Navy,  or  other  person  in  the  civil,  mihtary,  or  naval  service  of  the 
United  States,  who  orders,  brings,  keeps,  or  has  under  his  authority  or  control 
any  troops  or  armed  men  at  any  place  where  a  general  or  special  election  is 
held  in  any  State,  unless  such  force  be  necessary  to  repel  armed  enemies  of 
the  United  States,  shall  be  fined  not  more  than  five  thousand  dollars  and  im- 
prisoned not  more  than  five  years. — (35  Stat.,  1092;  sec.  5528,  R.  S.) 

Sec.  23.  [Intimidating  voters  by  army  or  navy  officers,  etc.]  Every 
officer  or  other  person  in  the  military  or  naval  service  of  the  United  States 
who,  by  force,  threat,  intimidation,  order,  advice,  or  otherwise,  prevents,  or 
attempts  to  prevent,  any  qualified  voter  of  any  State  from  freely  exercising 
the  right  of  suff"rage  at  any  general  or  special  election  in  such  State  shall  be 
fined  not  more  than  five  thousand  dollars  and  imprisoned  not  more  than  five 
years.— (35  Stat.,  1092;  sec.  5529,  R.  S.) 

Sec.  24.  [Army  or  navy  officers  prescribing  qualifications  of 
voters.]  Every  officer  of  the  army  or  navy  who  prescribes  or  fixes,  or  attempts 
to  prescribe  or  fix,  whether  by  proclamation,  order,  or  otherwise,  the  qualifi- 
cations of  voters  at  any  election  in  any  vState  shall  be  punished  as  provided  in 
the  preceding  section. — (35  Stat.,  1092;  sec.  5530,  R.  S.) 
See  section  2003,  Revised  Statutes. 

Sec.  25.  [Interfering  with  election  officers  by  army  or  navy 
OFFICERS,  ETC.]  Evcry  officer  or  other  person  in  the  military  or  naval  service 
of  the  United  vStates  who,  by  force,  threat,  mtimidation,  order,  ov  otherwise, 
compels,  or  attempts  to  compel,  any  officer  holding  an  election  ui  any  State 
to  receive  a  vote  from  a  person  not  legally  qualified  to  vote,  or  who  imposes,  or 
attempts  to  impose,  any  regulations  for  conducting  any  general  or  special  elec- 
tion in  a  State  different  from  those  prescribed  by  law,  or  who  interferes  in  any 
manner  with  any  officer  of  an  election  in  the  discharge  of  his  duty,  shall  be 
punished  as  provided  in  section  twenty-three. — (35  Stat.,  1092-1093;  sec. 
5531,  R.  S.) 

Sec.  26.  [Additional  punishment;  when  soldiers,  etc.,  may  vote.] 
Every  person  convicted  of  any  offense  defined  in  the  four  preceding  sections 
shall,  in  addition  to  the  punishment  therein  prescribed,  be  disqualified  from 
holding  any  office  of  honor,  profit,  or  trust  under  the  United  States;  but  nothing 
therein  shall  be  construed  to  prevent  any  officer,  soldier,  sailor,  or  marine  from 
exercising  the  right  of  suffrage  in  any  election  district  to  which  he  may  belong, 
if  otherwise  qualified  according  to  the  laws  of  the  State  in  which  he  offers  to 
vote.— (35  Stat.,  1093;  sec.  5532,  R.  S.) 


See  note  to  Constitution,  Article  I,  section  8, 
clause  13,  under  "II.  Freedom  from  State 
interference,"  subheading,  "Poll  taxes 
upon  persons  in  Navy;"  see  also  note  to 


section  355,  Revised  Statutes,  under  "V. 
Jurisdiction  of  the  United  States,"  sub- 
heading, "Status  of  residents." 


1321 


Mar.  4,  1909. 


Pt.  3.  STATUTES  AT  LARGE. 
CiiAPTEii  Four. 


Criminal  Code. 


OFFENSES    AGAINST    THE    OPERATIONS    OF    THE    GOVERNMENT. 


Sec. 

28.  Forerinc;  bids,  public  records,  etc. 

29.  Foririiii,'  deed?,  powers  of  attorney,  etc. 

30.  Having  fofLrcd  pai)ers  in  possession. 

31.  Fabe  acknowledgments. 

32.  Falsely  pretending  to   be   United   States 

officer. 

34.  False    demand    on    fraudulent    powder    of 

attorney. 

35.  Making   or   presenting   false    claims    [pur- 

chase of  naval  clothing]. 

36.  Embezzling  arms,  stores,  etc. 

37.  Conspiracy  to  commit  offense  against  the 

United  States;  all  parties  liable  for  acts 
of  one. 

38.  Delaj-ing  or  defrauding  captor  or  claimant, 

etc. ,  of  prize  property. 

39.  Bribery  of  United  States  officer. 


Sec. 

40.  Unlawfully  taking  or  using  papers  relating 

to  claims. 

41.  Persons  interested  not  to  act  as  agents  of 

the  Government. 

42.  Enticing  desertions  from  the  mfllitary  or 

naval  service. 

43.  Enticing  away  workmen. 

44.  Injuries  to  fortifications,  harbor  defenses, 

etc. 

45.  Unlawfully  entering  upon  military  reserva- 

tion, fort,  etc. 

46.  Robbery  or  larceny  of  personal  property 

of  the  United  States. 

47.  Embezzling,  stealing,  etc.,  public  property. 

48.  Receivers,  etc.,  of  stolen  public  property. 
79.  Falsely  claiming  citizenship. 


Sec.  28.  [Forging  bonds,  public  records,  or  other  writings.]  Who- 
ever shall  falsel}^  make,  alter,  forge,  or  counterfeit,  or  cause  or  procure  to  be 
falsely  made,  altered,  forged,  or  coimterfeited,  or  willmgly  aid  or  assist  in  the 
false  making,  altering,  forging,  or  counterfeiting,  any  bond,  bid,  proposal, 
contract,  guarantee,  security,  ofRcial  bond,  public  record,  affidavit,  or  other 
writing  for  the  purpose  of  defrauding  the  United  States;  or  shall  utter  or  pub- 
lish as  true,  or  cause  to  be  uttered  or  published  as  true,  or  have  in  his  possession 
with  the  intent  to  utter  or  publish  as  true,  any  such  false,  forged,  altered,  or 
counterfeited  bond,  bid,  proposal,  contract,  guarantee,  security,  official  bond, 
public  record,  affidavit,  or  other  writing,  for  the  purpose  of  defrauding  the 
United  States,  knowing  the  same  to  be  false,  forged,  altered,  or  counterfeited; 
or  shall  transmit  to,  or  present  at,  or  cause  or  procure  to  be  transmitted  to, 
or  presented  at,  the  office  of  any  officer  of  the  United  States,  any  such  false, 
forged,  altered,  or  counterfeited  bond,  bid,  proposal,  contract,  guarantee, 
security,  or  official  bond,  public  record,  affidavit,  or  other  writing,  knowing 
the  same  to  be  false,  forged,  altered,  or  counterfeited,  for  the  purpose  of 
defrauding  the  United  States,  shall  be  fined  not  more  than  one  thousand  dol- 
lars, or  imprisoned  not  more  than  ten  years,  or  both. — (35  Stat.,  1094;  sees. 
5418,  5479,  R.  S.) 

Forging  or  altering  certificates  of  discharge  from  the  navy,  or  having  same  in  possession; 
See  act  of  March  4,  1917  (39  Stat.,  1182). 

Sec.  29.  [Forging  deeds,  powers  of  attorney,  receipts,  or  other 
WRITINGS.]  Whoever  shall  falsely  make,  alter,  forge,  or  counterfeit,  or  cause 
or  procure  to  be  falsely  made,  altered,  forged,  or  counterfeited,  or  willingly 
aid  or  assist  in  the  false  making,  altering,  forging,  or  counterfeiting,  any  deed, 
power  of  attorney,  order,  certificate,  receipt,  contract,  or  other  writing,  for 
the  purpose  of  obtaining  or  receiving  or  of  enabling  any  other  person,  either 
directly  or  indirectly,  to  obtain  or  receive  from  the  United  States,  or  any  of 
their  officers  or  agents,  any  sum  of  money;  or  whoever  shall  utter  or  publish 
as  true,  or  cause  to  be  uttered  or  published  as  true,  any  such  false,  forged, 
altered,  or  counterfeited  deed,  power  of  attorney,  order,  certificate,  receipt, 
contract,  or  other  writing  with  intent  to  defraud  the  United  States,  knowing 


1322 


Criminal  Code.  Pt.  3.  STATUTES  AT  LARGE.  Mar.  4,  1909. 

the  same  to  be  false,  altered,  forged,  or  counterfeited;  or  whoever  shall  trans- 
mit to,  or  present  at,  or  cause  or  procure  to  be  transmitted  to,  or  presented  at, 
any  office  or  officer  of  the  Government  of  the  United  States,  any  deed,  power  of 
attorney,  order,  certificate,  receipt,  contract,  or  other  writing,  in  support  of, 
or  in  relation  to,  any  account  or  claim,  with  intent  to  defraud  the  United  States, 
knowing  the  same  to  be  false,  altered,  forged,  or  counterfeited,  shall  be  fined 
not  more  than  one  thousand  dollars  and  imprisoned  not  more  than  ten  years. — 
(35  Stat.,  1094;  sec.  5421,  R.  S.)  * 

Sec.  30.  [Having  forged  papers  in  possession.]  Whoever,  knowingl}^ and 
with  intent  to  defraud  the  United  States,  shall  have  in  his  possession  any  false, 
altered,  forged,  or  counterfeited  deed,  power  of  attorney,  order,  certificate, 
receipt,  contract,  or  other  writing,  for  the  purpose  of  enabling  another  to  obtain 
from  the  United  States,  or  from  any  officer  or  agent  thereof,  any  sum  of  money, 
shall  be  fined  not  more  than  five  hundred  dollars  or  imprisoned  not  more  than 
five  years,  or  both.— (35  Stat.,  1094;  sec.  5422,  R.  S.) 

Sec.  31.  [Officer  making  false  acknowledgments.]  Whoever,  being 
an  officer  authorized  to  administer  oaths  or  to  take  and  certify  acknowledg- 
ments, shall  knowingly  make  any  false  acJvnowledgment,  certificate,  or  state- 
ment concerning  the  appearance  before  him,  or  the  taking  of  an  oath  or 
affirmation  by  any  person  with  respect  to  any  proposal,  contract,  bond,  under- 
taking, or  other  matter  submitted  to,  made  with,  or  taken  on  behalf  of  the 
United  States,  and  concerning  which  an  oath  or  affirmation  is  required  by  law 
or  regulation  made  in  pursuance  of  law,  or  with  respect  to  the  financial  standing 
of  any  principal,  surety,  or  other  party  to  any  such  proposal,  contract,  bond, 
undertaking,  or  other  instrument,  shall  be  fined  not  more  than  two  thousand 
dollars  or  imprisoned  not  more  than  two  years,  or  both. —  (35  Stat.,  1094-1095.) 

See  note  to  section  183,  Revised  Statutes. 

Sec.  32.  [Falsely  pretending  to  be  officer,  etc.]  Whoever,  with 
intent  to  defraud  either  the  United  States  or  any  person,  shall  falsely  assume 
or  pretend  to  be  an  officer  or  employee  acting  under  the  authority  of  the 
United  States,  or  any  department,  or  any  officer  of  the  Government  thereof, 
and  shall  take  upon  himself  to  act  as  such,  or  shall  in  such  pretended  character 
demand  or  obtain  from  any  person  or  from  the  United  States,  or  any  depart- 
ment, or  any  officer  of  the  Government  thereof,  any  mone}^,  paper,  document, 
or  other  valuable  thing,  shall  be  fined  not  more  than  one  thousand  dollars  or 
imprisoned  not  more  tlian  three  years,  or  both. — (35  Stat.,  1095;  sec.  5438, 
R.  S.) 

See  act  of  June  3,  1916,  section  125  (39  Stat.,  216),  as  to  unauthorized  wearing  of  uniform 
of  Navy  or  Marine  Corps,  etc. 

Sec.  34.  [False  demand  for  wages,  etc.]  Whoever  shall  knowingly  or 
fraudulently  demand  or  endeavor  to  obtain  any  share  or  sum  in  the  public 
stocks  of  the  United  States,  or  to  have  any  part  thereof  transferred,  assigned, 
sold,  or  conveyed,  or  to  have  any  annuity,  dividend,  pension,  prize  money, 
wages,  or  other  debt  due  from  the  United  States,  or  any  part  thereof,  received, 
or  paid  by  virtue  of  any  false,  forged,  or  counterfeited  power  of  attorney, 
authority,  or  instrument  shall  be  fined  not  more  than  five  thousand  dollars  and 
imprisoned  not  more  than  ten  years. — (35  Stat.,  1095;  sec.  5436,  R.  S.) 

54641  °— 22 84  1 323 


Mar.  4,  1909.  Pt.  3.  STATUTES  AT  LARGE.  Criminal  Code. 

Sec.  35.  [Fraudulent  claims;  larceny;  conspiracy;  false  receipts; 
PURCHASE  OF  NAVAL  CLOTinxG,  ETC.]  Wliocver  shall  make  or  cause  to  be 
made  or  present  or  cause  to  be  presented,  for  payment  or  approval,  to  or  b}^ 
any  person  or  ollicer  in  tlie  civil,  military,  or  naval  service  of  the  United  States, 
or  any  department  thereof,  or  any  corporation  in  which  the  United  States  of 
America  is  a  stockliolder,  any  claim  upon  or  against  the  Government  of  the 
United  States,  or  any  department  or  officer  thereof,  or  any  corporation  in 
which  the  United  States  of  America  is  a  stockholder,  knowing  such  claim  to  be 
false,  fictitious,  or  fraudulent;  or  whoever,  for  the  purpose  of  obtaining  or 
aiding  to  obtain  the  payment  or  approval  of  such  claim,  or  for  the  purpose  and 
with  the  intent  of  cheating  and  swindling  or  defrauding  the  Government  of 
the  United  States,  or  any  department  thereof,  or  any  corporation  in  which  the 
United  States  of  America  is  a  stockholder,  shall  knowingly  and  willfully  falsify 
or  conceal  or  cover  up  by  any  trick,  scheme,  or  device  a  material  fact,  or  make 
or  cause  to  be  made  any  false  or  fraudulent  statements  or  representations,  or 
make  or  use  or  cause  to  be  made  or  used  any  false  bill,  receipt,  voucher,  roll, 
account,  claim,  certificate,  affidavit,  or  deposition,  knowing  the  same  to  con- 
tain any  fraudulent  or  fictitious  statement  or  entry;  or  whoever  shall  take 
and  carry  away  or  take  for  his  own  use,  or  for  the  use  of  another,  with  intent 
to  steal  or  purloin,  any  personal  property  of  the  United  States,  or  any  branch 
or  department  thereof,  or  any  corporation  in  which  the  United  States  of  America 
is  a  stockliolder;  or  whoever  shall  enter  into  any  agreement,  combination,  or 
conspiracy  to  defraud  the  Government  of  the  United  States,  or  any  department 
or  officer  thereof,  or  any  corporation  in  which  the  United  States  of  America 
is  a  stockholder,  by  obtaining  or  aiding  to  obtain  the  payment  or  allowance  of 
any  false  or  fraudulent  claim ;  and  whoever,  having  charge,  possession,  custody, 
or  control  of  any  money  or  other  public  property  used  or  to  be  used  in  the 
military  or  naval  service,  with  intent  to  defraud  the  United  States,  or  any 
department  thereof,  or  any  corporation  in  which  the  United  States  of  America 
is  a  stockholder,  or  willfully  to  conceal  such  money  or  other  property,  shall 
deliver  or  cause  to  be  delivered  to  any  person  having  authority  to  receive  the 
same  any  amount  of  such  money  or  other  property  less  than  that  for  which 
he  received  a  certificate  or  took  a  receipt ;  or  whoever,  being  authorized  to  make 
or  deliver  any  certificate,  voucher,  receipt,  or  other  paper  certifying  the  receipt 
of  arms,  ammunition,  provisions,  clothing,  or  other  property  so  used  or  to  be 
used,  shall  make  or  deliver  the  same  to  any  other  person  without  a  full  knowledge 
of  the  truth  of  the  facts  stated  therein  and  with  intent  to  defraud  the  United 
States,  or  any  department  thereof,  or  any  corporation  in  which  the  United 
States  of  America  is  a  stockholder,  shall  be  fined  not  more  than  $10,000  or 
imprisoned  not  more  than  ten  years,  or  both.  And  whoever  shall  purchase, 
or  receive  in  pledge,  from  any  person  any  arms,  equipment,  ammunition, 
clothing,  military  stores,  or  other  property  furnished  by  the  United  States, 
under  a  clothing  allowance  or  otherwise,  to  any  soldier,  sailor,  officer,  cadet, 
or  midshipman  in  the  military  or  naval  service  of  the  United  States  or  of  the 
National  Guard  or  Naval  Militia,  or  to  any  person  accompanying,  serving,  or 
retained  with  the  land  or  naval  forces  and  subject  to  military  or  naval  law, 
having  knowledge  or  reason  to  believe  that  the  property  has  been  taken  from 
the  possession  of  the  United  States  or  furnished  by  the  United  States  under 

1324 


Criminal  Code.  Ft.  3.  STATUTES  AT  LARGE.  Mar.  4,  1909. 

such  allowance,  shall  be  fined  not  more  than  $500  or  imprisoned  not  more  than 

two  years,  or  both.— (35   Stat.,    1095-1096;   40   Stat.,    1015-1016;   sec.    5438, 

R.  S.;  35  Stat.,  555-556.) 

See  section  1624,  ReAdsed  Statutes,  article  14; 
see  also  section  3748,  Revised  Statutes; 
and  see  section  46  of  this  act,  set  forth 
below. 


This  section  was  expressly  amended  and  re- 
enacted  to  read  as  above  bv  act  of  October 
23,  1918  (40  Stat.,  101-5-1016.) 


Sec.  36.  [Embezzlixg,  etc.,  arms,   stores,  etc.]     Whoever  shall  steal, 

embezzle,  or  knowingly  apply  to  his  own  use,  or  unlawfully  sell,  convey,  or 

dispose   of,   any  ordnance,   arms,   ammunition,   clothing,   subsistence,   stores, 

money,  or  other  property  of  the  United  States,  furnished  or  to  be  used  for  the 

military  or  naval  service,  shall  be  punished  as  prescribed  in  the  preceding 

section.— (35  Stat.,  1096;  sec.  5439,  R.  S.) 

See  section  1624,  Re\'ised  Statutes,  article  14;  .    statute,  for  uncertainty  as  to  the  punishment 

and  see  section  47  of  this  act,  set  forth  j    prescribed;  the  "preceding  section"  to  which 

below.  it  refers  prescribing  different  punishments  for 

Section    held    inoperative. — Section     36  different  offenses  therein  prescribed.     (Holmes 

of  the  Criminal  Code  is  inoperative  as  a  criminal  v.  U.  S.,  267  Fed.  Rep.,  529.) 

Sec.  37.  [Coxspiracy  to  comaht  offense  against  United  States.] 
If  two  or  more  persons  conspire  either  to  commit  any  offense  against  the  United 
States,  or  to  defraud  the  United  States  in  any  manner  or  for  any  purpose,  and 
one  or  more  of  such  parties  do  any  act  to  effect  the  object  of  the  conspiracy, 
each  of  the  parties  to  such  conspiracy  shall  be  fined  not  more  than  ten  thousand 
dollars,  or  imprisoned  not  more  than  two  years,  or  both. — (35  Stat.,  1096;  sec. 

5440,  R.  S.;  21  Stat.,  4.) 

This  section  was  extended  for  certain  purposes  to  the  Philippine  Islands  and  the  Canal 
Zone  by  act  of  June  15,  1917  (40  Stat.,  231  >. 

Sec.  38.  [Fraudulent  interference  with  disposition  of  prize,  etc.] 
Whoever  shall  willfully  do,  or  aid  or  advise  in  the  doing,  of  any  act  relating  to 
the  bringing  in,  custody,  preservation,  sale,  or  other  disposition  of  any  property 
captured  as  prize,  or  relating  to  any  documents  or  papers  connected  with  the 
propert}^,  or  to  any  deposition  or  other  document  or  paper  connected  with  the 
proceedings,  with  intent  to  defraud,  delay,  or  injure  the  United  States  or  any 
captor  or  claimant  of  such  property,  shall  be  fined  not  more  than  ten  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both. — (35  Stat.,  1096;  sec. 

5441,  R.  S.) 

See  section  1624,  Revised  Statutes,  articles  16-17;  See  also  sections  4613-4652,  Revised 
Statutes. 

Sec.  39.  [Bribery  of  United  States  officer.]  Whoever  shall  promise, 
offer,  or  give,  or  cause  or  procure  to  be  promised,  offered,  or  given,  any  money 
or  other  thing  of  value,  or  shall  make  or  tender  any  contract,  undertaking, 
obligation,  gratuity,  or  security  for  the  payment  of  money,  or  for  the  delivery 
or  conveyance  of  anything  of  value,  to  any  officer  of  the  United  States,  or  to 
any  person  acting  for  or  on  behalf  of  the  United  States  in  any  official  function, 
under  or  by  authority  of  any  department  or  office  of  the  Government  thereof, 
or  to  any  officer  or  person  acting  for  or  on  behalf  of  either  House  of  Congress, 
or  of  any  committee  of  either  House  or  both  Houses  thereof,  with  intent  to 
influence  his  decision  or  action  on  any  question,  matter,  cause,  or  proceeding 
which  may  at  any  time  be  pending,  or  which  may  by  law  be  brought  before  him 

1325 


Mar.  4,  1900.  Pt.  S.  STATUTES  AT  LARGE.  Criminal  Code. 

in  his  official  capacity,  or  in  his  phice  of  trust  or  profit,  or  with  intent  to  influ- 
ence him  to  commit  or  aid  in  committing,  or  to  collude  in,  or  allow,  any  fraud, 
or  make  opportunity  for  the  commission  of  any  fraud,  on  the  United  States, 
or  to  induce  him  to  do  or  omit  to  do  any  act  in  violation  of  his  lawful  duty, 
shall  be  fined  not  more  than  three  times  the  amount  of  money  or  value  of  the 
thing  so  offered,  promised,  given,  made,  or  tendered,  or  caused  or  procured 
to  be  so  offered,  promised,  given,  made,  or  tendered,  and  imprisoned  not  more 
than  three  years. — (35  Stat.,  1096;  sec.  5451,  R.  S.) 

Sec.  40.  [Unauthorized  use  of  official  papers  relating  to  claims.] 
Wlioever  shall  take  and  carry  away,  without  authority  from  the  United  States, 
from  the  place  where  it  has  been  filed,  lodged,  or  deposited,  or  where  it  may  for 
the  time  being  actually  be  kept  by  authority  of  the  United  States,  any  certifi- 
cate, affidavit,  deposition,  written  statement  of  facts,  power  of  attorney, 
receipt,  voucher,  assignment,  or  other  document,  record,  file,  or  paper,  prepared, 
fitted,  or  intended  to  be  used  or  presented  in  order  to  procure  the  payment  of 
money  from  or  by  the  United  States,  or  any  officer  or  agent  thereof,  or  the 
allowance  or  payment  of  the  whole  or  any  part  of  any  claim,  account,  or  de- 
mand against  the  United  States,  whether  the  same  has  or  has  not  already  been 
so  used  or  presented,  and  whether  such  claim,  account,  or  demand,  or  any  part 
thereof,  has  or  has  not  already  been  allowed  or  paid ;  or  whoever  shall  present, 
use,  or  attempt  to  use,  any  such  document,  record,  file,  or  paper  so  taken  and 
carried  away  in  order  to  procure  the  payment  of  any  money  from  or  by  the 
United  States,  or  any  officer  or  agent  thereof,  or  the  allowance  or  payment  of  the 
whole  or  any  part  of  any  claim,  account,  or  demand  against  the  United  States, 
shall  be  fined  not  more  than  five  thousand  dollars  or  imprisoned  not  more 
than  ten  years,  or  both. — (35  Stat.,  1096-1097;  sec.  5454,  R.  S.) 

See  sections  188,  190,  and  418,  Revised  Statutes,  and  notes  thereto;  see  also  sections  109 
and  128  of  this  act,  set  forth  below. 

Sec.  41.  [Persons  interested  not  to  act  as  Government  agents.] 
No  officer  or  agent  of  any  corporation,  joint-stock  company,  or  association,  and 
no  member  or  agent  of  any  firm,  or  person  directly  or  indirectly  interested  in 
the  pecuniary  profits  or  contracts  of  such  corporation,  joint-stock  company, 
association,  or  firm,  shall  be  employed  or  shall  act  as  an  officer  or  agent  of  the 
United  States  for  the  transaction  of  business  with  such  corporation,  joint-stock 
company,  association,  or  firm.  Whoever  shall  violate  the  provision  of  this 
section  shall  be  ffiied  not  more  than  two  thousand  dollars  and  imprisoned  not 
more  than  two  years. — (35  Stat.,  1097;  sec.  1783,  R.  S.) 

See  section  3745,  Revised  Statutes;  see  also  act  of  June  10,  1896  (29  Stat.,  361);  and  see  note 
to  section  1487,  Revised  Statutes,  under  "Hire  of  quarters." 

Sec.  42.  [Enticing  desertion  from  Naa'y,  etc.;  assisting  deserters.] 
Whoever  shall  entice  or  procure,  or  attempt  or  endeavor  to  entice  or  procure, 
any  soldier  in  the  military  service,  or  any  seaman  or  other  person  in  the  naval 
service  of  the  United  States,  or  who  has  been  recruited  for  such  service,  to 
desert  therefrom,  or  shall  aid  any  such  soldier,  seaman,  or  other  person  in 
deserting  or  in  attempting  to  desert  from  such  service;  or  whoever  shall  harbor, 
conceal,  protect,  or  assist  any  such  soldier,  seaman,  or  other  person  who  may 
have  deserted  from  such  service,  knowing  him  to  have  deserted  therefrom,  or 

1326 


Criminal  Code. 


PL  3.  STATUTES  AT  LARGE. 


Mar.  4,  1909. 


shall  refuse  to  give  up  and  deliver  such  soldier,  seaman,  or  other  person  on  the 
demand  of  any  officer  authorized  to  receive  him,  shall  be  imprisoned  not  more 
than  three  years  and  fined  not  more  than  two  thousand  dollars. — (35  Stat., 
f097;  sees.  1553,  5455,  R.  S.) 

See  section  1624,  Revised  Statutes,  article  8;  see  also  note  to  section  1553,  Revised  Statutes. 

Sec.  43.  [Enticing  workmen  from  arsenals,  etc.]  Whoever  shall 
procure  or  entice  any  artificer  or  workman  retained  or  employed  in  any  arsenal 
or  armory  to  depart  from  the  same  during  the  continuance  of  his  engagement, 
or  to  avoid  or  break  his  contract  with  the  United  States ;  or  whoever,  after  due 
notice  of  the  engagement  of  such  workman  or  artificer,  during  the  continuance 
of  such  engagement,  shall  retain,  hire,  or  in  anywise  employ,  harbor,  or  conceal 
such  artificer  or  workman,  shall  be  fined  not  more  than  fifty  dollars  or  imprisoned 
not  more  than  three  months,  or  both. — (35  Stat.,  1097;  sec.  1668,  R.  S.) 

Sec.  44.  [Injuries  to  fortifications,  etc.  ;  defensive  sea  areas.]  Who- 
ever shall  willfully  trespass  upon,  injure,  or  destroy  any  of  the  works  or  prop- 
erty or  material  of  any  submarine  mine  or  torpedo  or  fortification  or  harbor- 
defense  system  o\vned  or  constructed  or  in  process  of  construction  by  the 
United  States,  or  shall  willfully  interfere  with  the  operation  or  use  of  any  such 
submarine  mine,  torpedo,  fortification,  or  harbor-defense  system,  or  shall 
knowingly,  willfully,  or  wantonly  violate  any  duly  authorized  and  promulgated 
order  or  regulation  of  the  President  governing  persons  or  vessels  within  the 
limits  of  defensive  sea  areas,  which  defensive  sea  areas  are  hereby  authorized  to 
be  established  by  order  of  the  President  from  time  to  time  as  may  be  neces- 
sary in  his  discretion  for  purposes  of  national  defense,  shall  be  punished  on 
conviction  thereof  in  a  district  or  circuit  court  of  appeals  of  the  United  States 
for  the  district  or  circuit  in  which  the  offense  is  committed,  or  into  which  the 
offender  is  first  brought,  by  a  fine  of  not  more  than  $5,000,  or  by  imprisonment 
for  a  term  not  exceeding  five  years,  or  by  both,  in  the  discretion  of  the  court. — 
(35  Stat.,  1097;  30  Stat.,  717;  39  Stat.,  1194;  40  Stat.,  89.) 

This  section  was  expressly  amended  and  reen- 
acted  to  read  as  above  by  the  naval  appro- 
priation act  of  March  4,  1917  (39  Stat., 
1194).  It  was  further  amended  by  the 
following  section  in  act  of  May  22,  1917 
(40  Stat.,  89,  chap.  20): 

"Sec.  19.  That  section  forty-four  of  the 
Act  entitled  '  An  Act  to  codify,  revise,  and 
amend  the  penal  laws  of  the  United  States, ' 
approved  March  fourth,  nineteen  hundred 
and  nine,  as  amended  by  an  Act  entitled 
'An  Act  making  appropriation  for  the 
naval  service  for  the  fiscal  year  ending 
June  thirtieth,  nineteen  hundred  and 
eighteen,  and  for  other  purposes, '  approved 

Sec.  45.  [Unlawfully  entering  military  reservation,  etc.]  Who- 
ever shall  go  upon  any  military  reservation,  army  post,  fort,  or  arsenal,  for  any 
purpose  prohibited  by  law  or  military  regulation  made  in  pursuance  of  law,  or 
whoever  shall  reenter  or  be  found  within  any  such  reservation,  post,  fort,  or 
arsenal,  after  having  been  removed  therefrom  or  ordered  not  to  reenter  by  any 
officer  or  person  in  command  or  charge  thereof,  shall  be  fined  not  more  than  five 
hundred  dollars,  or  imprisoned  not  more' than  six  months,  or  both. — (35  Stat., 
1097.) 

1327 


March  fourth,  nineteen  hundred  and  seven- 
teen, be,  and  is  hereby,  amended  by  add- 
ing the  follo\ving  to  said  section: 

"  'Provided,  That  offenses  hereunder 
committed  within  the  Canal  Zone  or  within 
any  defensive  sea  areas  which  the  Presi- 
dent is  authorized  to  estabUsh  by  said  sec- 
tion, shall  be  cognizable  in  the  District 
Court  of  the  ('anal  Zone,  and  jurisdiction 
is  hereby  conferred  upon  said  court  to 
hear  and  determine  all  such  cases  arising 
under  said  section  and  to  impose  the  pen- 
alties therein  provided  for  the  violation 
of  any  of  the  provisions  of  said  section.' " 


Mar.  4,  1909. 


Pt.  3.  STATUTES  AT  LARGE. 


Criminal  Code. 


See  section  1G24,  Revised  Statutes,  article  5;  see  also  acts  of  June  15,  1917  (40  Stat.,  217, 
et  seq.),  and  April  20,  1918  (40  Stat.,  533-534). 

Sec.  46.  [Robbery  or  larceny  of  personal  property  of  United 
States.]  Wlioever  shall  rob  another  of  any  kind  or  description  of  personal 
property  belongnig  to  the  United  States,  or  shall  feloniously  take  and  carry 
away  the  same,  shall  be  fined  not  more  than  five  thousand  dollars,  or  impris- 
oned not  more  than  ten  years,  or  both. — (35  Stat.,  1097;  sec.  5456,  R.  S.) 

See  section  35  of  this  act,  set  fortli  above. 

Sec.  47.  [Embezzling,  stealing,  etc.,  public  money  or  property.] 
Whoever  shall  embezzle,  steal,  or  purloin  any  money,  property,  record,  voucher, 
or  valuable  thing  whatever,  of  the  moneys,  goods,  chattels,  records,  or  property 
of  the  United  States,  shall  be  fined  not  more  than  five  thousand  dollars,  or 
imprisoned  not  more  than  five  years,  or  both. — (35  Stat.,  1097;  18  Stat.,  479.) 

See  sections  35,  36,  and  46  of  this  act,  set  forth  above;  and  see  sections  86-92  of  this  act,  set 
forth  below. 

Sec.  48.  [Receiving,  etc.,  stolen  public  property.]  Whoever  shall 
receive,  conceal,  or  aid  in  concealing,  or  shall  have  or  retain  in  his  possession 
with  intent  to  convert  to  his  own  use  or  gain,  any  money,  property,  record, 
voucher,  or  valuable  thing  whatever,  of  the  moneys,  goods,  chattels,  records, 
or  property  of  the  United  States,  which  has  theretofore  been  embezzled,  stolen 
or  purloined  by  any  other  person,  knowing  the  same  to  have  been  so  embezzled, 
stolen,  or  purloined,  shall  be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  five  years,  or  both;  and  such  person  may  be  tried 
either  before  or  after  the  conviction  of  the  principal  offender. — (35  Stat.,  1098; 
18  Stat.,  479.) 

Sec.  79.  [Falsely  claiming  citizenship.]  Whoever  shall  knowingly  use 
any  certificate  of  naturalization  heretofore  or  which  hereafter  may  be  granted 
by  any  court,  which  has  been  or  may  be  procured  through  fraud  or  by  false 
evidence,  or  which  has  been  or  may  hereafter  be  issued  by  the  clerk  or  any 
other  officer  of  the  court  without  any  appearance  and  hearing  of  the  applicant 
in  court  and  without  lawful  authority;  or  whoever,  for  any  fraudulent  purpose 
whatever,  shall  falsely  represent  himself  to  be  a  citizen  of  the  United  States 
without  having  been  duly  admitted  to  citizenship,  shall  be  fined  not  more  than 
one  thousand  dollars,  or  imprisoned  not  more  than  two  years,  or  both. — (35 
Stat.,  1103;  sec.  5428,  R.  S.) 


See  note  to  section  1569,  Revised  Statutes, 
under  "9.  Longevity  pay.  General  Order 
No.  34,"  as  to  additional  pay  allowed  en- 
listed men  of  the  Navy  who  are  citizens  of 


the  United  States;  see  also  note  to  section 
236,  Revised  Statutes,  under  V,  (A), 
"Citizenship  of  enlisted  men;"  and  note 
to  Constitution,  fourteenth  amendment. 


Chapter  Five. 


OFFENSES    relating    TO    OFFICIAL   DUTIES. 


Sec. 

85.  Officer,  etc.,  of  the  United  States  guilty 

of  extortion. 

86.  Receipting  for  larger  sums  than  are  paid. 

87.  Disbursing  officers  unlawfully  converting, 

etc.,  public  money. 

88.  Failure  of  Treasurer,  etc.,  to  safely  keep 

pubUc  money. 


Sec. 

89.  Custodian  of  public  money  faiUng  to  safely 

keep,  etc. 

90.  Failure  of  officer  to  render  accounts,  etc. 

91.  Failure  to  deposit  as  required. 

92.  Provisions  of  the  five  preceding  sections, 

to  whom  applicable. 

93.  Record  evidence  of  embezzlement. 


1328 


Criminal  Code.  Pt.  S.  STATUTES  AT  LARGE.  Mar.  4,  1900, 


Sec. 

114.  Member  of  Congress  not  to  be  interested 

in  contract. 

115.  Officer  making  contracts  with  Member  of 

Congress. 

116.  Contracts  to  which  two  preceding  sections 

do  not  apply. 

117.  United  States  officer  accepting  bribe. 

118.  Political  contributions  not  to  be  solicited 

by  certain  officers. 

119.  Political  contributions  not  to  be  received 

in  pubUc  offices. 

120.  Immunity  from  official  proscription. 

121.  Giving  money  to  officials  for  political  pur- 

poses prohibited. 

122.  Penalty  for  violating  provisions    of   four 

preceding  sections. 


Sec. 

94.  Prima  facie  evidence. 

95.  Evidence  of  conversion. 

97.  Embezzlement    by    internal-revenue    of- 

ficer, etc.  [Offense  not  otherwise  pun- 
ishable.] 

98.  Officer   contracting   beyond   specific   ap- 

propriation. 

101.  Failure  to  make  returns  or  reports. 

103.  Collecting  and  disbursing  officers  forbid- 
den to  trade  in  public  property. 

106.  Other  false  certificates. 

109.  Officer  not  to  be  interested  in  claims 
against  the  United  States. 

112.  Member   of    Congress    [or    other    officers] 

taking  consideration  for  procuring  con- 
tract, office,  etc.;  offering  Member  con- 
sideration, etc. 

113.  Member  of  Congress,  etc.,  taking  compen- 

sation in  matters  to  which  United  States 
is  a  party. 

Sec.  85.  [Extortion  by  officials.]  Every  officer,  clerk,  agent,  or  em- 
ployee of  the  United  States,  and  every  person  representing  himself  to  be  or 
assuming  to  act  as  such  officer,  clerk,  agent,  or  employee,  who,  under  color  of 
his  office,  clerkship,  agency,  or  employment,  or  under  color  of  his  pretended  or 
assumed  office,  clerkship,  agency,  or  employment,  is  guilty  of  extortion,  and 
every  person  who  shall  attempt  any  act  which  if  performed  would  make  him 
guilty  of  extortion,  shall  be  fined  not  more  than  five  hundred  dollars,  or  impris- 
oned not  more  than  one  year,  or  both. — (35  Stat.,  1104;  sec.  5481,  R.  S.;  34 
Stat.,  546.) 

Sec.  86.  [Receipting  for  larger  sums  than  are  paid.]  Whoever,  be- 
ing an  officer,  clerk,  agent,  employee,  or  other  person  charged  with  the  pay- 
ment of  any  appropriation  made  by  Congress,  shall  pay  to  any  clerk  or  other 
employee  of  the  United  States  a  sum  less  than  that  provided  by  law,  and  re- 
quire such  employee  to  receipt  or  give  a  voucher  for  an  amount  greater  than 
that  actually  paid  to  and  received  by  him,  is  guilty  of  embezzlement,  and  shall 
be  fined  in  double  the  amount  so  withheld  from  any  employee  of  the  Govern- 
ment and  imprisoned  not  more  than  two  years. — (35  Stat.,  1105;  sec.  5483, 
R.  S.) 

See  section  1624,  Revised  Statutes,  article  14. 

Sec.  87.  [Disbursing  officers  unlawfully  using,  etc.,  public  money.] 
Whoever,  being  a  disbursing  officer  of  the  United  States,  or  a  person  acting  as 
such,  shall  in  any  manner  convert  to  his  own  use,  or  loan  with  or  without  in- 
terest, or  deposit  in  any  place  or  in  any  manner,  except  as  authorized  by  law, 
any  public  money  intrusted  to  him;  or  shall,  for  any  purpose  not  prescribed  by 
law,  withdraw  from  the  Treasurer  or  any  assistant  treasurer,  or  any  authorized 
depositary,  or  transfer,  or  apply,  any  portion  of  the  public  money  intrusted  to 
him,  shall  be  deemed  guilty  of  an  embezzlement  of  the  money  so  converted, 
loaned,  deposited,  withdrawn,  transferred,  or  applied,  and  shall  be  fined  not 
more  than  the  amount  embezzled,  or  imprisoned  not  more  than  ten  years,  or 
both.— (35  Stat.,  1105;  sec.  5488,  R.  S.) 

See  section  1624,  Reiised  Statutes,  article  14;  see  also  section  47  of  this  act,  set  forth  above; 
and  see  section  92,  below. 

Sec.  88.  [Failure  of  depositaries  to  safely  keep  public  deposits.] 

If  the  Treasurer  of  the  United  States  or  any  assistant  treasurer,  or  any  public 

1320 


Mar.  4,  1909.  Pt.  S.  STATUTES  AT  LARGE.  Criminal  Code. 

depositary,  fails  safely  to  keep  all  moneys  deposited  by  any  disbursing  ofTicer 
or  disbursing  agent,  as  well  as  all  moneys  deposited  by  any  receiver,  collector, 
or  other  person  having  money  of  the  United  States,  he  shall  be  deemed  guilty 
of  embezzlement  of  the  moneys  not  so  safely  kept,  and  shall  be  fined  in  a  sum 
equal  to  the  amount  of  money  so  embezzled  and  imprisoned  not  more  than  ten 
years.— (35  Stat.,  1105;  sec.  5489,  R.  S.) 

See  section  1624,  Revised  Statutes,  article  14;  see  also  section  92  of  this  act,  set  forth  below. 

Sec.  89.  [Custodiax  failing  to  keep,  etc.,  public  moneys.]  Every 
officer  or  other  person  charged  by  any  act  of  Congress  with  the  safe-keeping  of 
the  public  moneys  who  shall  loan,  use,  or  convert  to  his  o"wti  use,  or  shall  de- 
posit in  any  bank  or  exchange  for  other  funds,  except  as  specially  allowed  by 
law,  any  portion  of  the  public  moneys  intrusted  to  him  for  safe-keeping,  shall 
be  guilty  of  embezzlement  of  the  money  so  loaned,  used,  converted,  deposited, 
or  exchanged,  and  shall  be  fined  in  a  sum  equal  to  the  amount  of  money  so 
embezzled  and  imprisoned  not  more  than  ten  years. — (35  Stat.,  1105;  sec. 
5490,  R.  S.) 

See  section  1624,  Revised  Statutes,  article  14;  see  also  section  92  of  this  act,  set  forth  below. 

Sec.  90.  [Failure  of  officer  to  render  accounts.]  Every  officer  or 
agent  of  the  United  States  who,  having  received  public  money  which  he  is  not 
authorized  to  retain  as  salary,  pay,  or  emolument,  fails  to  render  his  accounts 
for  the  same  as  provided  by  law  shall  be  deemed  guilty  of  embezzlement, 
and  shall  be  fined  in  a  sum  equal  to  the  amount  of  the  money  embezzled  and 
imprisoned  not  more  than  ten  years. — (35  Stat.,  1105;  sec.  5491,  R.  S.) 


See  section  1624,  Revised  Statutes,  article  14; 
see  also  section  92  of  this  act,  set  forth 
below;  and  see  notes  to  sections  176  and 
1376,  Re^^8ed  Statutes. 

Punishment  for  making  false  entries  in  ac- 
counts, rendering  false  returns,  etc.,  is  pre- 


scribed by  act  of  March  4,  1911  (36  Stat , 
1355). 
Time  for  rendering  public  accounts:  See  act  of 
July  31,  1894,  section  12  (28  Stat.,  209); 
and  see  note  to  section  3622,  Revised 
Statutes. 


Sec.  91.  [Failure  to  deposit  as  required.]  Whoever,  having  money 
of  the  United  States  in  his  possession  or  under  his  control,  shall  fail  to  deposit 
it  with  the  Treasurer,  or  some  assistant  treasurer,  or  some  public  depositary 
of  the  United  States,  when  required  so  to  do  by  the  Secretary  of  the  Treasury, 
or  the  head  of  any  other  proper  department,  or  by  the  accounting  officers  of  the 
Treasury,  shall  be  deemed  guilty  of  embezzlement  thereof,  and  shall  be  fined 
in  a  sum  equal  to  the  amount  of  money  embezzled  and  imprisoned  not  more 
than  ten  years. — (35  Stat.,  1105;  sec.  5492,  R,  S.) 

See  section  1624,  Revised  Statutes,  article  14. 

Sec.  92.  [Five  preceding  sections  construed.]  The  provisions  of  the 
five  preceding  sections  shall  be  construed  to  apply  to  all  persons  charged  with 
the  safe-keeping,  transfer,  or  disbursement  of  the  public  money,  whether  such 
persons  be  indicted  as  receivers  or  depositaries  of  the  same. — (35  Stat.,  1105.) 

See  section  1624,  Revised  Statutes,  article  14. 

Sec.  93.  [Record  evidence  of  embezzlement.]  Upon  the  trial  of  any 
indictment  against  any  person  for  embezzling  public  money  under  any  provision 
of  the  six  preceding  sections,  it  shall  be  sufficient  evidence,  prima  facie,  for  the 
purpose  of  showing  a  balance  against  such  person,  to  produce  a  transcript 

1380 


Criminal  Code.  Pt.  3.  STATUTES  AT  LARGE.  Mar.  4,  1909. 

from  the  books  and  proceedings  of  the  Treasury,  as  required  in  civil  cases, 
under  the  provisions  for  the  settlement  of  accounts  between  the  United  States 
and  receivers  of  public  money. — (35  Stat.,  1105;  sec.  5494,  R.  S.) 

Sec.  94.  [Prima  facie  evidence.]  The  refusal  of  any  person,  whether 
in  or  out  of  ofhce,  charged  with  the  safe-keeping,  transfer,  or  disbursement  of 
the  public  money  to  pay  any  draft,  order,  or  warrant,  drawn  upon  him  by  the 
proper  accounting  officer  of  the  Treasury,  for  any  public  money  in  his  hands 
belonging  to  the  United  States,  no  matter  in  what  capacity  the  same  may 
have  been  received,  or  may  be  held,  or  to  transfer  or  disburse  any  such  money, 
promptly,  upon  the  legal  requirement  of  any  authorized  officer,  shall  be  deemed, 
upon  the  trial  of  any  indictment  against  such  person  for  embezzlement,  prima 
facie  evidence  of  such  embezzlement. — (35  Stat.,  1106;  sec.  5495,  R.  S.) 

Sec.  95.  [Evidence  of  conversion.]  If  any  officer  charged  with  the 
disbursement  of  the  public  moneys  accepts,  receives,  or  transmits  to  the  Treas- 
ury Department  to  be  allowed  in  his  favor  any  receipt  or  voucher  from  a  creditor 
of  the  United  States  without  having  paid  to  such  creditor  in  such  funds  as 
the  officer  received  for  disbursement,  or  in  such  funds  as  he  may  be  authorized 
by  law  to  take  in  exchange,  the  full  amount  specified  in  such  receipt  or  voucher, 
every  such  act  is  an  act  of  conversion  by  such  officer  to  his  own  use  of  the 
amount  specified  in  such  receipt  or  voucher. — (35  Stat.,  1106;  sec.  5496,  R.  wS.) 

Sec.  97.  [Embezzlement;  offenses  not  otherwise  punishable.]  Any 
officer  connected  with,  or  employed  in,  the  Internal-Revenue  Service  of  the 
United  States,  and  any  assistant  of  such  officer,  who  sliall  embezzle  or  wrong- 
fully convert  to  his  own  use  any  money  or  other  property  of  the  United  States, 
and  any  officer  of  the  United  States,  or  any  assistant  of  such  officer,  who  shall 
embezzle  or  wrongfully  convert  to  his  own  use  any  money  or  property  which 
may  have  come  into  his  possession  or  under  his  control  in  the  execution  of 
such  office  or  employment,  or  under  color  or  claim  of  authority  as  such  officer 
or  assistant,  whether  the  same  shall  be  the  money  or  property  of  the  United 
States  or  of  some  other  person  or  party,  shall,  where  the  offense  is  not  other- 
wise punishable  by  some  statute  of  the  United  States,  be  fined  not  more  than 
the  value  of  the,  money  and  property  thus  embezzled  or  converted,  or  imprisoned 
not  more  than  ten  years,  or  both. — (35  Stat.,  1106;  30  Stat.,  280.) 

See  section  1624,  Revised  Statutes,  article  22. 

Sec.  98.  [Officer  contracting  beyond  specific  appropriation,]  Who- 
ever, being  an  officer  of  the  United  States,  shall  knowingly  contract  for 
the  erection,  repair,  or  furnishing  of  any  public  building,  or  for  any  public 
improvement,  to  pay  a  larger  amount  than  the  specific  sum  appropriated  for 
such  purpose,  shall  be  fined  not  more  than  two  thousand  dollars  and  imprisoned 
not  more  than  two  years. — (35  Stat.,  1106;  sec.  5503,  R.  S.) 
See  section  3733,  Revised  Statutes. 

Sec.  101.  [Failure  to  make  reports  at  reql^red  times.]  Every 
officer  who  neglects  or  refuses  to  make  any  return  or  report  which  he  is  required 
to  make  at  stated  times  by  any  act  of  Congress  or  regulation  of  the  Department 
of  the  Treasury,  other  than  his  accounts,  within  the  time  prescribed  by  such 
act  or  regulation,  shall  be  fined  not  more  than  one  thousand  dollars. — (35  Stat., 
1107;  sec.  1780,  R.S.) 

See  sections  195,  196,  and  429,  Revised  Statutes,  and  notes  thereto. 

1331 


Mar.  4,  1909.  /'/.  S.  STATUTES  AT  LARGE.  Criminal  Code. 

Sec.  103.  [Tkading  in  public  property  by  disbursing  officer.] 
WhooTor,  boino;  an  ofliror  of  the  United  States  concerned  in  the  collection  or 
tlie  dishursonient  of  the  revenues  thereof,  shall  carry  on  an}'^  trade  or  business 
in  tlie  funds  or  debts  of  the  United  States,  or  of  any  State,  or  in  any  public 
property  of  either,  shall  })e  fined  not  more  than  three  thousand  dollars,  or 
imprisoned  not  more  than  one  year,  or  both,  and  be  removed  from  office,  and 
thereafter  be  incapable  of  holding  any  office  under  the  United  States. — 
(35  Stat.,  1107;  sees.  1788,  1789,  R.  S.) 

Sec.  106.  [False  certificates;  not  otherwise  punishable.]  Who- 
ever, beino;  a  public  officer  or  other  person  authorized  by  any  law  of  the  United 
States  to  make  or  give  a  certificate  or  other  writing,  shall  knowingly  make 
and  deliver  as  true  such  a  certificate  or  writing,  containing  any  statement 
which  he  knows  to  be  false,  in  a  case  where  the  punishment  thereof  is  not 
elsewhere  expressly  provided  by  law,  shall  be  fined  not  more  than  five  hundred 
dollars  or  imprisoned  not  more  than  one  year,  or  both. — (35  Stat.,  1107.) 

See  section  1624,  ReAaeed  Statutes,  articles  8 
and    14;  see   also   act   of   March   4,    1911 


(36  Stat.,  1355);    and  see  sections  31,  35, 
and  86  of  this  act,  set  forth  above. 


Sec.  109.  [Officers  interested  in  claims  against  the  United  States.] 
Whoever,  being  an  officer  of  the  United  States,  or  a  person  holding  any  place 
of  trust  or  profit,  or  discharging  any  official  function  under,  or  in  connection 
with,  any  Executive  Department  of  the  Government  of  the  United  States,  or 
under  the  Senate  or  House  of  Representatives  of  the  United  States,  shall  act 
as  an  agent  or  attorney  for  prosecuting  any  claim  against  the  United  States,  or 
in  any  manner,  or  by  any  means,  otherwise  than  in  discharge  of  his  proper 
official  duties,  shall  aid  or  assist  in  the  prosecution  or  support  of  any  such  claim, 
or  receive  any  gratuity,  or  any  share  of  or  interest  in  any  claim  from  any  claim- 
ant against  the  United  States,  with  intent  to  aid  or  assist,  or  in  consideration 
of  having  aided  or  assisted,  in  the  prosecution  of  such  claim,  shall  be  fined  not 
more  than  five  thousand  dollars  or  imprisoned  not  more  than  one  year,  or 
both.— (35  Stat.,  1107;  sec.  5498,  R.  S.) 


,See  section  113  of  this  act,  set  forth  below;  and 
see  note  to  section  190,  Revised  Statutes,  as 
to  status  of  retired  officers;  see  also  note  to 
section  418,  Revised  Statutes,  under  "Rec- 
ords of  Department,"  and  section  40  of 
this  act,  set  forth  above. 

By  act  of  March  1,  1901  (31  Stat.,  844-845),  it 
waa  provided  that  members  of  the  National 


Guard  of  the  District  of  Coliimbia  who 
receive  compensation  for  their  services  as 
such  shall  not  be  held  or  construed  to  be 
officers  of  the  United  States,  or  persons 
holding  g,ny  place  of  trust  or  profit,  etc., 
within  the  provision  of  section  5498,  Re- 
vised Statutes,  now  embodied  in  section  109 
of  this  act. 


Sec.  112.  [Member  of  Congress,  etc.,  taking  Consideration  for  pro- 
curing CONTRACT,  ETC.]  Whoever,  being  elected  or  appointed  a  Member  of  or 
Delegate  to  Congress,  or  a  Resident  Commissioner,  shall,  after  his  election 
or  appointment  and  either  before  or  after  he  has  qualified,  and  during  his  con- 
tinuance in  office,  or  being  an  officer  or  agent  of  the  United  States,  shall  directly 
or  indirectly  take,  receive,  or  agree  to  receive,  from  any  person,  any  money, 
property,  or  other  valuable  consideration  whatever,  for  procuring,  or  aiding  to 
procure,  any  contract,  appointive  office,  or  place,  from  the  United  States  or  from 
any  officer  or  department  thereof,  for  any  person  whatever,  or  for  giving  any 
such  contract,  appointive  office,  or  place  to  any  person  whomsoever;  or  whoever, 
directly  or  indirectly,  shall  offer,  or  agree  to  give,  or  shall  give,  or  bestow,  any 

1332 


Criminal  Code.  Pt.S.  STATUTES  AT  LARGE.  Mar.  4,  1909. 

money,  property,  or  other  valuable  consideration  whatever,  for  the  procuring, 
or  aiding  to  procure,  any  such  contract,  appointive  office,  or  place,  shall  be  fined 
not  more  than  ten  thousand  dollars  and  imprisoned  not  more  than  two  years; 
and  shall,  moreover,  be  disqualified  from  holding  any  office  of  honor,  profit,  or 
trust  under  the  Government  of  the  United  States.  Any  such  contract  or  agree- 
ment may  at  the  option  of  the  President  be  declared  void. — (35  Stat,,  1108- 
1109;  sec.  1781,  R.  S.) 

See  section  3741,  R.  S.;  and  see  act  of  June  10,  1896  (29  Stat.,  361). 

Sec.  113.  [Member  of  Congress,  etc.,  receiving  pay  for  services 
BEFORE  COURTS-MARTIAL,  BUREAUS,  ETC.]  Whoever,  being  elected  or  ap- 
pointed a  Senator,  Member  of  or  Delegate  to  Congress,  or  a  Resident  Com- 
missioner, shall,  after  his  election  or  appointment  and  either  before  or  after  he 
has  qualified,  and  during  his  contmuance  in  office,  or  being  the  head  of  a  depart- 
ment, or  other  officer  or  clerk  in  the  employ  of  the  United  States,  shall,  directly  or 
indirectly,  receive,  or  agree  to  receive,  any  compensation  whatever  for  any  serv- 
ices rendered  or  to  be  rendered  to  any  person,  either  by  himself  or  another,  in 
relation  to  any  proceeding,  contract,  claim,  controversy,  charge,  accusation, 
arrest,  or  other  matter  or  thing  in  which  the  United  States  is  a  party  or  directly 
or  indirectly  interested,  before  any  department,  court-martial,  bureau,  officer,  or 
any  civil,  military,  or  naval  commission  whatever,  shall  be  fined  not  more  than 
ten  thousand  dollars  and  imprisoned  not  more  than  two  years;  and  shall,  more- 
over, thereafter  be  incapable  of  holding  any  office  of  honor,  trust,  or  profit 
under  the  Government  of  the  United  States. — (35  Stat.,  1109;  sec.  1782,  R.  S.) 

See  note  to  section  190,  Revised  Statutes,  as  to  status  of  retired  officer. 

Sec.  114.  [Member  of  Congress  interested  in  public  contracts.] 
Whoever,  being  elected  or  appointed  a  Member  of  or  Delegate  to  Congress,  or  a 
Resident  Commissioner,  shall,  after  his  election  or  appointment  and  either 
before  or  after  he  has  qualified,  and  during  his  continuance  in  office,  directly  or 
indirectly,  himself,  or  by  any  other  person  in  trust  for  him,  or  for  his  use  or 
benefit,  or  on  his  account,  undertake,  execute,  hold,  or  enjoy,  in  whole  or  in  part, 
any  contract  or  agreement,  made  or  entered  into  in  behalf  of  the  United  States  by 
any  officer  or  person  authorized  to  make  contracts  on  its  behalf,  shall  be  fined 
not  more  than  three  thousand  dollars.  All  contracts  or  agreements  made  in 
violation  of  this  section  shall  be  void;  and  whenever  any  sum  of  money  is  ad- 
vanced by  the  United  States,  in  consideration  of  any  such  contract  or  agreement, 
it  shall  forthwith  be  repaid;  and  in  case  of  failure  or  refusal  to  repay  the  same 
when  demanded  by  the  proper  officer  of  the  department  under  whose  authority 
such  contract  or  agreement  shall  have  been  made  or  entered  into,  suit  shall  at 
once  be  brought  against  the  persons  so  failing  or  refusing  and  his  sureties,  for 
the  recovery  of  the  money  so  advanced. — (35  Stat.,  1109;  sec.  3739,  R.  S.) 

See  section  112  of  this  act,  set  forth  above,  and  section  3741,  Re\'ised  Statutes. 

Sec.  115.  [Officer  making  contract  with  Member  of  Congress.] 
Whoever,  being  an  officer  of  the  United  States,  shall  on  behalf  of  the  United 
States,  directly  or  indirectly  make  or  enter  into  any  contract,  bargain,  or  agree- 
ment, in  writing  or  otherwise,  with  any  Member  of  or  Delegate  to  Congress,  or 
any  Resident  Commissioner,  after  his  election  or  appointment  as  such  Member, 
Delegate,  or  Resident  Commissioner,  and  either  before  or  after  he  has  qualified, 

1333 


Mar.  4,  1909.  Pt.  S.  STATUTES  AT  LARGE.  Criminal  Code. 

and  (hiring;  his  continuance  in  office,  shall  be  fined  not  more  than  three  thousand 
dollars.— (35  Stat.,  1109;  sec.  3742,  R.  S.) 
See  section  3741,  Re^dsed  Statutes. 

Sec.  116.  [Contracts;  two  preceding  sections  construed.]  Nothing 
contained  in  the  two  preceding  sections  shall  extend,  or  be  construed  to  extend, 
to  any  contract  or  agreement  made  or  entered  into,  or  accepted,  by  any  incor- 
porated company,  where  such  contract  or  agreement  is  made  for  the  general 
benefit  of  such  incorporation  or  company;  nor  to  the  purchase  or  sale  of  bills  of 
exchange  or  other  property  by  any  Member  of  or  Delegate  to  Congress,  or  Resi- 
dent Commissioner,  where  the  same  are  ready  for  delivery,  and  payment  therefor 
is  made,  at  the  time  of  making  or  entering  into  the  contract  or  agreement. — 
(35  Stat.,  1109;  sec.  3740,  R.  S.) 

Sec.  117.  [Official  accepting  bribe.]  Whoever,  being  an  officer  of  the 
United  States,  or  a  person  acting  for  or  on  behalf  of  the  United  States,  in  any 
official  capacity,  under  or  by  virtue  of  the  authority  of  any  department  or  office 
of  the  Government  thereof;  or  whoever,  being  an  officer  or  person  acting  for  or 
on  behalf  of  either  House  of  Congress,  or  of  any  committee  of  either  House,  or 
of  both  Houses  thereof,  shall  ask,  accept,  or  receive  any  money,  or  any  con- 
tract, promise,  undertaking,  obligation,  gratuity,  or  security  for  the  payment  of 
money,  or  for  the  delivery  or  conveyance  of  anything  of  value,  with  intent  to 
have  his  decision  or  action  on  any  question,  matter,  cause,  or  proceeding  which 
may  at  any  time  be  pending,  or  which  may  by  law  be  brought  before  him  in  his 
official  capacity,  or  in  his  place  of  trust  or  profit,  influenced  thereby,  shall  be 
fined  not  more  than  three  times  the  amount  of  money  or  value  of  the  thing  so 
asked,  accepted,  or  received,  and  imprisoned  not  more  than  three  years;  and 
shall,  moreover,  forfeit  his  office  or  place  and  thereafter  be  forever  disqualified 
from  holding  any  office  of  honor,  trust,  or  profit  under  the  Government  of  the 
United  States.— (35  Stat.,  1109-1110;  sees.  5501,  5502,  R.  S.) 

Sec.  118.  [Political  contributions  solicited  by  officers.]  No 
Senator  or  Representative  in,  or  Delegate  or  Resident  Commissioner  to  Con- 
gress, or  Senator,  Representative,  Delegate,  or  Resident  Commissioner  elect, 
or  officer  or  employee  of  either  House  of  Congress,  and  no  executive,  judicial, 
military,  or  naval  officer  of  the  United  States,  and  no  clerk  or  employee  of  any 
department,  branch,  or  bureau  of  the  executive,  judicial,  or  military  or  naval 
service  of  the  United  States,  shall,  directly  or  indirectly,  solicit  or  receive,  or  be 
in  any  manner  concerned  in  soliciting  or  receiving,  any  assessment,  subscription, 
or  contribution  for  any  political  purpose  whatever,  from  any  officer,  clerk,  or 
employee  of  the  United  States,  or  any  department,  branch,  or  bureau  thereof, 
or  from  any  person  receiving  any  salary  or  compensation  from  moneys  derived 
from  the  Treasury  of  the  United  States.— (35  Stat.,  1110;  22  Stat.,  406.) 

See  section  1546,  RcAdsed  Statutes,  and  note  thereto. 

Sec.  119.  [Political  contributions  solicited  in  public  offices.]  No 
person  shall,  in  any  room  or  building  occupied  in  the  discharge  of  official  duties 
by  any  officer  or  employee  of  the  United  States  mentioned  in  the  preceding 
section,  or  in  any  navy-yard,  fort,  or  arsenal,  solicit  in  any  maimer  whatever 
or  receive  any  contribution  of  money  or  other  thing  of  value  for  any  poUtical 
purpose  whatever.— (35  Stat.,  1110;  22  Stat.,  407.) 

See  section  1546,  Revised  Statutes,  and  note  thereto. 

1334 


Criminal  Code.  Ft.  3.  STATUTES  AT  LARGE.  Mar.  4,  1909. 

Sec.  120.  [Immunity  from  official  proscription.]  No  officer  or  employee 
of  the  United  States  mentioned  in  section  one  hundred  and  eighteen,  shall 
discharge,  or  promote,  or  degrade,  or  in  any  manner  change  the  official  rank 
or  compensation  of  any  other  officer  or  employee,  or  promise  or  threaten  so  to 
do,  for  giving  or  withholding  or  neglecting  to  make  any  contribution  of  money 
or  other  valuable  thing  for  any  political  purpose. — (35  Stat.,  1110;  22  Stat.,  407.) 

See  section  1546,  Revised  Statutes,  and  note  thereto. 

Sec.  121.  [Making  political  contributions  to  officials.]  No  officer, 
clerk,  or  other  person  in  the  service  of  the  United  vStates  shall,  directly  or  indi- 
rectly, give  or  hand  over  to  any  other  officer,  clerk,  or  person  in  the  service  of 
the  United  States,  or  to  any  Senator  or  IViember  of  or  Delegate  to  Congress,  or 
Resident  Commissioner,  any  money  or  other  valuable  thing  on  account  of  or 
to  be  applied  to  the  promotion  of  any  political  object  whatever. — (35  Stat., 
1110;  22  Stat.,  407.) 

See  section  1546,  Re\ised  Statutes,  and  note  thereto. 

Sec.  122.  [Punishment;  four  preceding  sections.]  Whoever  shall 
violate  any  provision  of  the  four  preceding  sections  shall  be  fined  not  more  than 
five  thousand  dollars,  or  imprisoned  not  more  than  three  years,  or  both. — (35 
Stat.,  1110;  22  Stat.,  407.) 

Chapter  Six. 
offenses  against  public  justice. 


Sec. 

125.  Perjury. 

126.  Subornation  of  perjury. 

128.  Destroj'ing,  etc.,  public  records. 

129.  Destroying  records  by  officer  in  charge. 
131.  Bribery  of  a  judge  or  judicial  officer. 


Sec. 

133.  Juror,   referee,    master,   etc.,   or  judicial 

officer,  etc.,  accepting  bribe. 

134.  Witness  accepting  bribe. 

145.  Extortion  by  informer. 

146.  Misprision  of  felony. 


Sec.  125.  [Perjury  defined.]  Whoever,  having  taken  an  oath  before  a 
competent  tribunal,  officer,  or  person,  in  any  case  in  which  a  law  of  the  United 
States  authorizes  an  oath  to  be  administered,  that  he  will  testify,  declare,  depose, 
or  certify  truly,  or  that  any  written  testimony,  declaration,  deposition,  or  cer- 
tfficate  by  him  subscribed  is  true,  shall  willfully  and  contrary  to  such  oath  state 
or  subscribe  any  material  matter  which  he  does  not  believe  to  be  true,  is  guilty 
of  perjury,  and  shall  be  fined  not  more  than  two  thousand  dollars  and  impris- 
oned not  more  than  five  years. — -(35  Stat.,  1111 ;  sec.  5392,  R.  S.) 

See  sections  1023  and  1624,  articles  14,  22,  and  42,  Revised  Statutes. 

Sec.  126.  [Subornation  of  perjury.]  Whoever  shall  procure  another  to 
commit  any  perjury  is  guilty  of  subornation  of  perjury  and  punishable  as  in 
the  preceding  section  prescribed. — (35  Stat.,  1111;  sec.  5393,  R.  S.) 

Sec.  128.  [Destroying,  etc.,  public  records.]  Whoever  shall  willfully 
and  unlawfully  conceal,  remove,  mutilate,  obliterate,  or  destroy,  or  attempt  to 
conceal,  remove,  mutilate,  obliterate,  or  destroy,  or,  with  intent  to  conceal, 
remove,  mutilate,  obliterate,  destroy,  or  steal,  shall  take  and  carry  away  any 
record,  proceeding,  map,  book,  paper,  document,  or  other  thing,  ffied  or  deposited 
with  any  clerk  or  officer  of  any  court  of  the  United  States,  or  in  any  public 
office,  or  with  any  judicial  or  public  officer  of  the  United  States,  shall  be  fined 

1335 


Mar.  4,  1909.  Pt.  S.  STATUTES  AT  LARGE.  Criminal  Code. 

not  more  than  two  thousand  doHars,  or  imprisoned  not  more  than  three  years, 

or  both.— (35  Stat.,  1111-1112;  sec.  5403,  R.  S.) 

See  section  40  of  this  act,  set  forth  above;  and  see  notes  to  section  418,  Revised  Statutes,  and 
act  of  February  1(J,  1889  (25  Stat.,  G72). 

Sec.  129.  [Destroying,  etc.,  records  by  custodian.]  Whoever,  having 
the  custody  of  any  record,  proceeding,  map,  book,  document,  paper,  or  other 
thing  specified  in  the  preceding  section,  shall  willfully  and  unlawfully  conceal, 
remove,  mutilate,  obliterate,  falsify,  or  destroy  any  such  record,  proceeding, 
map,  book,  document,  paper,  or  thing,  shall  be  fined  not  more  than  two  thou- 
sand dollars,  or  imprisoned  not  more  than  three  years,  or  both;  and  shall  more- 
over forfeit  his  office  and  be  forever  afterward  disqualified  from  holding  any 
office  under  the  Government  of  the  United  States. — (35  Stat.,  1112;  sec.  5408, 
R.  S.) 

Sec.  131.  [Bribery  of  judicial  officer,  etc.]  Whoever,  directly  or 
indirectly,  shall  give  or  offer,  or  cause  to  be  given  or  offered,  any  money,  prop- 
erty, or  value  of  any  kind,  or  any  promise  or  agreement  therefor,  or  any  other 
bribe,  to  any  judge,  judicial  officer,  or  other  person  authorized  by  any  law  of  the 
United  States  to  hear  or  determine  any  question,  matter,  cause,  proceeding,  or 
controversy,  with  intent  to  influence  his  action,  vote,  opinion,  or  decision 
thereon,  or  because  of  any  such  action,  vote,  opinion,  or  decision,  shall  be  fined 
not  more  than  twenty  thousand  dollars,  or  imprisoned  not  more  than  fifteen 
years,  or  both;  and  shall  forever  be  disqualified  to  hold  any  ofl&ce  of  honor, 
trust,  or  profit  under  the  United  States. — (35  Stat.,  1112;  sec.  5449,  R.  S.) 

Sec.  133.  [Acceptance  of  bribe  by  officer.]  Whoever,  being  a  juror, 
referee,  arbitrator,  appraiser,  assessor,  auditor,  master,  receiver.  United  States 
commissioner,  or  other  person  authorized  by  any  law  of  the  United  States  to 
hear  or  determine  any  question,  matter,  cause,  controversy,  or  proceeding, 
shall  ask,  receive,  or  agree  to  receive,  any  money,  property,  or  value  of  any  kind, 
or  any  promise  or  agreement  therefor,  upon  any  agreement  or  understanding 
that  his  vote,  opinion,  action,  judgment,  or  decision  shall  be  influenced  thereby, 
or  because  of  any  such  vote,  opinion,  action,  judgment,  or  decision,  shall  be 
fined  not  more  than  two  thousand  dollars,  or  imprisoned  not  more  than  two 
years,  or  both. — (35  Stat.,  1112.) 

Sec.  134.  [Witness  accepting  bribe.]  Whoever,  being,  or  about  to  be,  a 
witness  upon  a  trial,  hearing,  or  other  proceeding,  before  any  court  or  any  officer 
authorized  by  the  laws  of  the  United  States  to  hear  evidence  or  take  testimony, 
shall  receive,  or  agree  or  offer  to  receive,  a  bribe,  upon  any  agreement  or  under- 
standing that  his  testimony  shall  be  influenced  thereby,  or  that  he  will  absent 
himself  from  the  trial,  hearing,  or  other  proceeding,  or  because  of  such  testi- 
mony, or  such  absence,  shall  be  fined  not  more  than  two  thousand  dollars,  or 
imprisoned  not  more  than  two  years,  or  both. — (35  Stat.,  1113.) 

Sec.  145.  [Extortion  by  informer.]  Whoever  shall,  under  a  threat  of 
informing,  or  as  a  consideration  for  not  informing,  against  any  violation  of  any 
law  of  the  United  States,  demand  or  receive  any  money  or  other  valuable  thing, 
shall  be  fined  not  more  than  two  thousand  dollars,  or  imprisoned  not  more  than 
one  year,  or  both. — (35  Stat.,  1114;  sec.  5484,  R.  S.) 

Sec.  146.  [Misprision  of  felony.]  Whoever,  having  knowledge  of  the 
actual  commission  of  the  crime  of  murder  or  other  felony  cognizable  by  the 

1336 


Criminal  Code. 


rt.  3.  STATUTES  AT  LARGE. 


Mar.  4,  1909. 


courts  of  the  United  States,  conceals  and  does  not  as  soon  as  may  be  disclose 
and  make  known  the  same  to  some  one  of  the  judges  or  other  persons  in  civil  or 
military  authority  under  the  United  States,  shall  be  fined  not  more  than  five 
hundred  dollars,  or  imprisoned  not  more  than  three  years,  or  both. — (35  Stat., 
1114;  sec.  5390,  R.  S.) 

Chapter  Seven. 

offenses  against  the  currency,  coinage,  etc. 

Sec.  178.  [Issuing  checks,  etc.,  for  less  than  one  dollar.]  No  person 
shall  make,  issue,  circulate,  or  pay  out  any  note,  check,  memorandum,  token, 
or  other  obligation  for  a  less  sum  than  one  dollar,  intended  to  circulate  as  money 
or  to  be  received  or  used  in  lieu  of  lawful  money  of  the  United  States;  and  every 
person  so  offending  shall  be  fined  not  more  than  five  hundred  dollars,  or  im- 
prisoned not  more  than  six  months,  or  both. — (35  Stat.,  1122;  sec.  3583,  R.  S.) 

Chapter  Eight. 


offenses  against  the  postal  service. 


Sec 

189, 
190, 
192 
193 
194 


Injuring  mail  bags,  etc. 
Stealing  post-office  property. 
Breaking  into  and  entering  post-office. 
Unlawfully  entering  postal  car,  etc. 
Stealing,  secreting,  embezzling,  etc.,  mail 
matter  or  contents. 

195.  Postmaster  or  employee  of  postal  service 

detaining,    destroying,    or    embezzling 
letter,  etc. 

196.  Postmaster,  etc.,  detaining  or  destroying 

newspapers. 

197.  Assaulting  mail  carrier  with  intent  to  rob, 

and  robbing  mail. 
199.  Deserting  the  mail. 
201.  Obstructing  the  mail. 
207.  Collection  of  unlawful  postage  forbidden. 


to 


Sec. 

208.  Unlawful  pledging  or  sale  of  stamps. 

209.  Failure   to   account   for   postage   and 

cancel  stamps,  etc.,  by  officials. 

210.  Issuing  money  order  without  payment. 

211.  Obscene,  etc.,  matter  nonmailable. 

212.  Libelous    and    indecent    wrappers    and 

envelopes. 

213.  Lottery,    gift   enterprise,    etc.,    circulars, 

etc.,  not  mailable. 

214.  Postmasters  not  to  be  lottery  agents. 

217.  Poisons  and  explosives  nonmailable. 

218.  Counterfeiting  money  orders. 
225.  Misappropriation     of     postal     funds 

property. 
227.  Fraudulent  use  of  official  envelopes. 
230.  Omission  to  take  oath. 


or 


Sec.  189.  [Injuring  mail  bags,  etc.]  Whoever  shall  tear,  cut,  or  other- 
wise injure  any  mail  bag,  pouch,  or  other  thing  used  or  designed  for  use  in  the 
conveyance  of  the  mail,  or  shall  draw  or  break  any  staple  or  loosen  any  part  of 
any  lock,  chain,  or  strap  attached  thereto,  with  intent  to  rob  or  steal  any  such 
mail,  or  to  render  the  same  insecure,  shall  be  fined  not  more  than  five  hundred 
dollars  or  imprisoned  not  more  than  three  years,  or  both. — (35  Stat.,  1124; 
sec.  5476,  R.  S.) 

See  act  of  May  27,  1908  (35  Stat.,  417-418),  and  amendments  quoted  thereunder,  as  to  Navy 
mail  clerks  and  assistants,  their  status,  duties,  etc. 

Sec.  190.  [Stealing,  etc.,  post-office  property.]  Whoever  shall  steal, 
purloin,  or  embezzle  any  mail  bag  or  other  property  in  use  by  or  belonging  to 
the  Post-Office  Department,  or  shall  appropriate  any  such  property  to  his  own 
or  any  other  than  its  proper  use,  or  shall  convey  away  any  such  property  to  the 
hindrance  or  detriment  of  the  public  service,  shall  be  fined  not  more  than  two 
hundred  dollars,  or  imprisoned  not  more  than  three  years,  or  both. — (35  Stat,, 
1124;  sec.  5475,  R.  S.) 

See  note  to  section  189,  above,  as  to  Navy  mail  clerks. 


1337 


Mar.  4,  1909.  Pt.  3.  STATUTES  AT  LARGE.  Criminal  Code. 

Sec.  192.  [Breaking  into  post-office.]  Whoever  shall  forcibly  break 
into  or  attempt  to  break  into  any  post-office,  or  any  building  used  in  whole  or 
in  part  as  a  post-office,  with  intent  to  commit  in  such  post-office,  or  building, 
or  part  thereof,  so  used,  any  larceny  or  other  depredation,  shall  be  fined  not  more 
than  one  thousand  dollars  and  imprisoned  not  more  than  five  years. — (35  Stat., 
1125;  sec.  5478,  R.  S.) 

See  note  to  section  189,  above,  as  to  Na\'y  mail  clerks. 

Sec.  193.  [Unlawfully  entering  compartment  of  vessel,  etc.,  used 
BY  mail  service.]  Whoever,  by  violence,  shall  enter  a  post-office  car,  or  any 
apartment  in  any  car,  steamboat,  or  vessel,  assigned  to  the  use  of  the  Mail 
Service,  or  shall  willfully  or  maliciously  assault  or  interfere  with  any  postal 
clerk  in  the  discharge  of  his  duties  in  connection  with  such  car,  steamboat, 
vessel,  or  apartment  thereof,  or  shall  willfully  aid  or  assist  therein,  shall  be  fined 
not  more  than  one  thousand  dollars,  or  imprisoned  not  more  than  three  years, 
or  both.— (35  Stat.,  1125;  32  Stat.,  1176.) 

See  note  to  section  189,  above,  as  to  Navy  mail  clerks. 

Sec.  194.  [Stealing,  embezzling,  etc.,  mail  matter.]  Whoever  shall 
steal,  take,  or  abstract,  or  by  fraud  or  deception  obtain,  from  or  out  of  any 
mail,  post-office,  or  station  thereof,  or  other  authorized  depository  for  mail 
matter,  or  from  a  letter  or  mail  carrier,  any  letter,  postal  card,  package,  bag,  or 
mail,  or  shall  abstract  or  remove  from  any  such  letter,  package,  bag,  or  mail, 
any  article  or  thing  contained  therein,  or  shall  secrete,  embezzle,  or  destroy  any 
such  letter,  postal  card,  package,  bag,  or  mail,  or  any  article  or  thmg  contained 
therein;  or  whoever  shall  buy,  receive,  or  conceal,  or  aid  in  buying,  receiving,  or 
concealing,  or  shall  unlawfully  have  in  his  possession,  any  letter,  postal  card, 
package,  bag,  or  mail,  or  any  article  or  thing  contained  therein,  which  has  been 
so  stolen,  taken,  embezzled,  or  abstracted,  as  herein  described,  knowing  the  same 
to  have  been  so  stolen,  taken,  embezzled,  or  abstracted;  or  whoever  shall  take 
any  letter,  postal  card,  or  package,  out  of  any  post-office  or  station  thereof,  or 
out  of  any  authorized  depository  for  mail  matter,  or  from  any  letter  or  mail 
carrier,  or  which  has  been  in  any  post-office  or  station  thereof,  or  other  author- 
ized depository,  or  in  the  custody  of  any  letter  or  mail  carrier,  before  it  has  been 
delivered  to  the  person  to  whom  it  was  directed,  with  a  design  to  obstruct  the 
correspondence,  or  to  pry  into  the  business  or  secrets  of  another,  or  shall  open, 
secrete,  embezzle,  or  destroy  the  same,  shall  be  fined  not  more  than  two  thou- 
sand dollars,  or  imprisoned  not  more  than  five  years,  or  both. — (35  Stat.,  1125; 
sees.  3892,  5469,  Revised  Statutes.) 

See  note  to  section  189,  above,  as  to  Navy  mail  clerks. 

Sec.  195.  [Postal  employee  detaining,  destroying,  or  embezzling 
mail  matter.]  Whoever,  being  a  postmaster  or  other  person  employed  in  any 
department  of  the  postal  service,  shall  unlawfully  detain,  delay,  or  open  any 
letter,  postal  card,  package,  bag,  or  mail  intrusted  to  him  or  which  shall  come 
into  his  possession,  and  which  was  intended  to  be  conveyed  by  mail,  or  carried 
or  delivered  by  any  carrier,  messenger,  agent,  or  other  person  employed  in  any 
department  of  the  postal  service,  or  forwarded  through  or  delivered  from  any 
post-office   or   station   thereof   established   by  authority  of   the  Postmaster- 

1338 


Criminal  Code.  Pt.  3.  STATUTES.  AT  LARGE.  Mar.  4,  1909. 

General;  or  shall  secrete,  embezzle,  or  destroy  any  such  letter,  postal  card, 
package,  bag,  or  mail;  or  shall  steal,  abstract,  or  remove  from  any  such  letter, 
package,  bag,  or  mail,  any  article  or  thing  contained  therein,  shall  be  fined  not 
more  than  five  hundred  dollars,  or  imprisoned  not  more  than  five  years  or 
both.— (35  Stat.,  1125-112G;  sees.  3890,  3891,  5467,  R.  S.) 

See  note  to  section  189,  above,  as  to  Navy  mail  clerks. 

Sec.  196.  [Postal  employee  detaining,  opening,  or  destroying,  etc., 
NEWSPAPERS  IN  MAIL.]  Wliocvcr,  being  a  postmaster  or  other  person  employed 
in  any  department  of  the  postal  service,  shall  improperly  detain,  delay,. embezzle, 
or  destroy  any  newspaper,  or  permit  any  other  person  to  detain,  delay,  embezzle, 
or  destroy  the  same,  or  open,  or  permit  any  other  person  to  open,  any  mail  or 
package  of  newspapers  not  directed  to  the  office  where  he  is  employed;  or  who- 
ever shall  open,  embezzle,  or  destroy  any  mail  or  package  of  newspapers  not 
being  directed  to  him,  and  he  not  being  authorized  to  open  or  receive  the  same; 
or  whoever  shall  take  or  steal  any  mail  or  package  of  newspapers  from  any  post- 
office  or  from  any  person  having  custody  thereof,  shall  be  fined  not  more  than 
one  hundred  dollars,  or  imprisoned  not  more  than  one  year,  or  both. — (35  Stat., 
1126;  sec.  5471,  R.  S.) 

See  note  to  section  189,  above,  as  to  Navy  mail  clerks. 

Sec.  197.  [Assaulting  or  robbing  mail  custodian.]  Whoever  shall 
assault  any  person  having  lawful  charge,  control,  or  custody  of  any  mail  matter, 
with  intent  to  rob,  steal,  or  purloin  such  mail  matter  or  any  part  thereof,  or 
shall  rob  any  such  person  of  such  mail  or  any  part  thereof,  shall,  for  a  first  offense, 
be  imprisoned  not  more  than  ten  years;  and  if  in  efi^ecting  or  attempting  to 
effect  such  robbery,  he  shall  wound  the  person  having  custody  of  the  mail,  or 
put  his  life  in  jeopardy  by  the  use  of  a  dangerous  weapon,  or  for  a  subsequent 
offense,  shall  be  imprisoned  twenty-five  years. — (35  Stat.,  1126;  sees.  5472, 
5473,  R.  S.) 

See  note  to  section  189,  above,  as  to  Navy  mail  clerks. 

Sec.  199.  [Deserting  the  mail.]  Whoever,  having  taken  charge  of  any 
mail,  shall  voluntarily  quit  or  desert  the  same  before  he  has  delivered  it  into  the 
post-office  at  the  termination  of  the  route,  or  to  some  known  mail  carrier,  mes- 
senger, agent,  or  other  employee  in  the  postal  service  authorized  to  receive  the 
same,  shall  be  fined  not  more  than  five  hundred  dollars,  or  imprisoned  not  more 
than  one  year,  or  both. — -(35  Stat.,  1126;  sec.  5474,  R.  S.) 

See  note  to  section  189,  above,  as  to  Navy  mail  clerks. 

Sec.  201. — [Obstructing  the  mail.]  Whoever  shall  knowingly  and  will- 
fully obstruct  or  retard  the  passage  of  the  mail,  or  any  carriage,  horse,  driver, 
or  carrier,  or  car,  steamboat,  or  other  conveyance  or  vessel  carrying  the  same, 
shall  be  fined  not  more  than  one  hundred  dollars,  or  imprisoned  not  more  than 
six  months,  or  both.— (35  Stat.,  1127;  sec.  3995,  R.  S.) 

See  note  to  section  189,  above,  as  to  Navy  mail  clerks. 

Sec.  207.  [Collecting  unlawful  postage.]  Whoever,  beuig  a  post- 
master or  other  person  authorized  to  receive  the  postage  of  mail  matter,  shall 
fraudulently  demand  or  receive  any  rate  of  postage  or  gratuity  or  reward  other 

54641°— 22 85  1339 


Mar.  4,  1909.  Pt.  3.  STATUTES  AT  LARGE.  Criminal  Code. 

than  is  provided  by  law  for  tho  postage  of  such  mail  matter,  shall  be  fined  not 
more  than  one  hundred  dollars,  or  imprisoned  not  more  than  six  months,  or 
both.— (35  Stat.,  1128;  sec.  3899,  K.  S.) 

See  note  to  pection  189,  above,  as  to  Xavy  mail  clerks. 

Sec.  208.  [Unlawful  pledging  or  sale  of  stamps,  etc.]  Whoever, 
being  a  postmaster  or  other  person  employed  in  any  branch  of  the  postal  service, 
and  being  intrusted  with  the  sale  or  custody  of  postage  stamps,  stamped 
envelopes,  or  postal  cards,  shall  use  or  dispose  of  them  in  the  payment  of  debts, 
or  in  the  purchase  of  merchandise  or  other  salable  articles,  or  pledge  or  hypoth- 
ecate the  same,  or  sell  or  dispose  of  them  except  for  cash;  or  sell  or  dispose  of 
postage  stamps  or  postal  cards  for  any  larger  or  less  sum  than  the  values  indi- 
cated on  their  faces;  or  sell  or  dispose  of  stamped  envelopes  for  a  larger  or  less 
sum  than  is  charged  therefor  by  the  Post-Ofhce  Department  for  like  quantities; 
or  sell  or  dispose  of,  or  cause  to  be  sold  or  disposed  of,  postage  stamps,  stamped 
envelopes,  or  postal  cards  at  any  point  or  place  outside  of  the  delivery  of  the 
ofhce  where  such  postmaster  or  other  person  is  employed ;  or  induce  or  attempt 
to  induce,  for  the  pm-pose  of  increasing  the  emoluments  or  compensation  of  such 
postmaster,  or  the  emoluments  or  compensation  of  any  other  person  employed 
in  such  post-office  or  any  station  thereof,  or  the  allowances  or  facilities  provided 
therefor,  any  person  to  purchase  at  such  post-office  or  any  station  thereof,  or 
from  any  employee  of  such  post-office,  postage  stamps,  stamped  envelopes, 
or  postal  cards;  or  sell  or  dispose  of  postage  stamps,  stamped  envelopes,  or 
postal  cards,  otherwise  than  as  provided  by  law"  or  the  regulations  of  the  Post- 
Office  Department,  shall  be  fined  not  more  than  five  hundred  dollars,  or  impris- 
oned not  more  than  one  year,  or  both. — (35  Stat.,  1128;  sec.  3920,  R.  S.) 

See  note  to  section  189,  above,  as  to  Naw  mail  clerks. 

Sec.  209.  [Failing  to  account  for  postage  due,  etc.]  Whoever, 
being  a  postmaster  or  other  person  engaged  in  the  postal  service,  shall  collect 
and  fail  to  account  for  the  postage  due  upon  any  article  of  mail  matter  which 
he  VH2LJ  deliver,  without  having  previously  affixed  and  canceled  the  special 
stamp  provided  by  law,  or  shall  fail  to  affix  such  stamp,  sliall  be  fined  not 
more  than  fifty  dollars.— (35  Stat.,  1128-1129;  20  Stat.,  362.) 

See  note  to  section  189,  above,  as  to  Nav>'  mail  clerks.  ' 

Sec.  210.  [IssL^NG  unpaid-for  money  orders.]  Wlioever,  being  a 
postmaster  or  other  person  employed  in  any  branch  of  the  postal  service,  shall 
issue  a  money  order  without  having  previously  received  the  money  therefor, 
shall  be  fined  not  more  than  five  hundred  dollars. — (35  Stat.,  1129;  sec.  4030, 
R.  S.) 

See  note  to  section  189,  above,  as  to  Navy  mail  clerks. 

Sec.  211.  [Obscene  matter  unmailable;  inciting  arson,  murder, 
ETC.]  Every  obscene,  lewd,  or  lascivious,  and  every  filthy,  book,  pamplilet, 
picture,  paper,  letter,  writing,  print,  or  other  publication  of  an  indecent  charac- 
ter, and  every  article  or  thing  designed,  adapted,  or  intended  for  preventing 
conception  or  producing  abortion,  or  for  any  indecent  or  immoral  use;  and  every 
article,  instrument,  substance,  drug,  medicine,  or  tiling  which  is  advertised  or 

1340 


Criminal  Code.  PL  3.  STATUTES  AT  LARGE.  Mar.  4,  1909. 

described  in  a  manner  calculated  to  lead  another  to  use  or  apply  it  for  prevent- 
ing conception  or  producing  abortion,  or  for  any  indecent  or  immoral  purpose; 
and  every  Mo-itten  or  printed  card,  letter,  circular,  book,  pamphlet,  advertise- 
ment, or  notice  of  any  kind  giving  information  directly  or  indirectly,  where,  or 
how,  or  from  whom,  or  by  what  means  any  of  the  hereinbefore-mentioned 
matters,  articles,  or  things  may  be  obtained  or  made,  or  where  or  by  whom  any 
act  or  operation  of  any  kind  for  the  procuring  or  producing  of  abortion  will  be 
done  or  performed,  or  how  or  by  what  means  conception  may  be  prevented  or 
abortion  produced,  whether  sealed  or  unsealed;  and  every  letter,  packet,  or 
package,  or  other  mail  matter  containing  any  filthy,  vile,  or  indecent  thing, 
device,  or  substance;  and  every  paper,  writing,  advertisement,  or  representation 
that  any  article,  instrument,  substance,  drug,  medicine,  or  thing  may,  or  can 
be,  used  or  applied  for  preventing  conception  or  producing  abortion,  or  for  any 
indecent  or  immoral  purpose;  and  every  description  calculated  to  induce  or 
incite  a  person  to  so  use  or  apply  any  such  article,  instrument,  substance,  drug, 
medicine,  or  thing,  is  hereby  declared  to  be  nonmailable  matter  and  shall  not  be 
conveyed  in  the  mails  or  delivered  from  any  post  office  or  by  any  letter  carrier. 
Whoever  shall  knowingly  deposit,  or  cause  to  be  deposited  for  mailing  or  delivery, 
anything  declared  by  this  section  to  be  nonmailable,  or  shall  knowingly  take,  or 
cause  the  same  to  be  taken,  from  the  mails  for  the  purpose  of  circulating  or  dis- 
posing thereof,  or  of  aiding  in  the  circulation  or  disposition  thereof,  shall  be 
fined  not  more  than  five  thousand  dollars,  or  imprisoned  not  more  than  five 
years,  or  both.  And  the  term  "indecent"  witliin  the  intendment  of  this  section 
shall  include  matter  of  a  character  tending  to  incite  arson,  murder,  or  assas- 
sination.—(35  Stat.,  1129;  25  Stat.,  496;  sec.  3893,  R.  S.;  36  Stat.,  1339.) 

Amendment  to  this  section  was  made  by  act  of 

March  4,  1911  (36  Stat.,  1339),  which  added 

thereto  the  last  sentence  above  set  forth. 
See  acts  of  July  31,  1912  (37  Stat.,  240-241); 

and  June  15,  1917  (40  Stat.,  230-231). 

Sec.  212.  [Libelous  or  indecent  matter  on  wrappers,  etc.]  All 
matter  otherwise  mailable  by  law,  upon  the  envelope  or  outside  cover  or  ^vrap- 
per  of  which,  or  any  postal  card  upon  wliich,  any  delineations,  epithets,  terms,  or 
language  of  an  indecent,  lewd,  lascivious,  obscene,  libelous,  scurrilous,  de- 
famatory, or  threatening  character,  or  calculated  by  the  terms  or  manner  or 
style  of  display  and  obviously  intended  to  reflect  injuriously  upon  the  character 
or  conduct  of  another,  may  be  written  or  printed  or  otherwise  impressed  or 
apparent,  are  hereby  declared  nonmailable  matter,  and  shall  not  be  conveyed 
in  the  mails  nor  delivered  from  any  post-office  nor  by  any  letter  carrier,  and  shall 
be  withdrawn  from  the  mails  under  such  regulations  as  the  Postmaster-General 
shall  prescribe.  Whoever  shall  knowingly  deposit  or  cause  to  be  deposited, 
for  mailing  or  delivery,  anything  declared  by  this  section  to  be  nonmailable 
matter,  or  shall  knowingly  take  the  same  or  cause  the  same  to  be  taken  from 
the  mails  for  the  purpose  of  circulating  or  disposing  of  or  aiding  in  the  circula- 
tion or  disposition  of  the  same,  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both.— (35  Stat.,  1129; 
25  Stat.,  496.) 

Sec.  213.  [Lottery  circui^vrs,  etc.,  not  mailable.]  No  letter,  package, 
postal  card,  or  circular  concerning  any  lottery,  gift  enterprise,  or  similar  scheme 

1341 


Punishment  for  mailing  threats  against  the 
President:  See  act  of  February  14,  1917 
(39  Stat.,  919). 


Mar.  4,  1909.  Pt.  3.  STATUTES  AT  LARGE.  Criminal  Code. 

olTering  prizes  dependent  in  wliole  or  in  part  upon  lot  or  chance;  and  no  lottery 
ticket  or  part  thereof,  or  paper,  certificate,  or  instrument  purporting  to  be  or  to 
represent  a  ticket,  chance,  share,  or  interest  in  or  dependent  upon  the  event  of  a 
lottery,  gift  enterprise,  or  similar  scheme  offering  prizes  dependent  in  whole  or 
in  part  upon  lot  or  chance;  and  no  check,  draft,  hill,  money,  postal  note,  or 
money  order,  for  the  purchase  of  any  ticket  or  part  thereof,  or  of  any  share  or 
chance  in  any  such  lottery,  gift  enterprise,  or  scheme;  and  no  newspaper, 
circular,  pamplilet,  or  publication  of  any  kind  containing  any  advertisement 
of  any  lottery,  gift  enterprise,  or  scheme  of  any  kind  offering  prizes  dependent 
in  whole  or  in  part  upon  lot  or  chance,  or  containing  any  list  of  the  prizes  drawn 
or  awarded  by  means  of  any  such  lottery,  gift  enterprise,  or  scheme,  whether 
said  list  contains  any  part  or  all  of  such  prizes,  shall  be  deposited  in  or  carried 
by  the  mails  of  the  United  States,  or  be  delivered  by  any  postmaster  or  letter 
carrier.  Whoever  shall  knowingly  deposit  or  cause  to  be  deposited,  or  shall 
knowingly  send  or  cause  to  be  sent,  anything  to  be  conveyed  or  delivered  by 
mail  in  violation  of  the  provisions  of  this  section,  or  shall  knowingly  deliver  or 
cause  to  be  delivered  by  mail  anything  herein  forbidden  to  be  carried  by  mail, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not  more  than 
two  years,  or  both;  and  for  any  subsequent  offense  shall  be  imprisoned  not  more 
than  five  years.  Any  person  violating  any  provision  of  this  section  may  be 
tried  and  punished  either  in  the  district  in  which  the  unlawful  matter  or  publi- 
cation was  mailed,  or  to  which  it  was  carried  by  mail  for  delivery  according  to 
the  direction  thereon,  or  in  wliich  it  was  caused  to  be  delivered  by  mail  to  the 
person  to  whom  it  was  addressed.— (35  Stat.,  1129-1130;  sec.  3894,  K.  S.; 
26  Stat.,  465;  28  Stat.,  963.) 

Sec.  214.  [Postal  employee  selling  or  delivering  lottery  tickets, 
ETC.]  Whoever,  being  a  postmaster  or  other  person  employed  in  the  postal 
service,  shall  act  as  agent  for  any  lottery  office,  or  under  color  of  purchase  or 
otherwise,  vend  lottery  tickets,  or  shall  knowingly  send  by  mail  or  deliver  any 
letter,  package,  postal  card,  circular,  or  pamphlet  advertising  any  lottery,  gift 
enterprise,  or  similar  scheme,  offering  prizes  dependent  in  whole  or  in  part  upon 
lot  or  chance,  or  any  ticket,  certificate,  or  instrument  representing  any  chance, 
share,  or  interest  in  or  dependent  upon  the  event  of  any  lottery,  gift  enterprise, 
or  similar  scheme  offering  prizes  dependent  in  whole  or  in  part  upon  lot  or  chance, 
or  any  list  of  the  prizes  awarded  by  means  of  any  such  scheme,  shall  be  fined 
not  more  than  one  hundred  dollars,  or  imprisoned  not  more  than  one  year,  or 
both.— (35  Stat.,  1130;  sec.  3851,  R.  S.) 

See  note  to  section  189,  above,  as  to  Navy  mail  clerks. 

Sec  217.  [Poisons,  explosives,  intoxicants,  etc.,  nonivlulable.]  That 
all  kinds  of  poison,  and  all  articles  and  compositions  containing  poison,  and  all 
poisonous  animals,  insects,  and  reptiles,  and  explosives  of  all  kinds,  and  inflam- 
mable materials,  and  infernal  machines,  and  mechanical,  chemical,  or  other 
devices  or  compositions  which  may  ignite  or  explode,  and  all  disease  germs  or 
scabs,  and  all  other  natural  or  artificial  articles,  compositions,  or  materials,  of 
whatever  kuid,  which  may  kill  or  in  anywise  hurt,  harm,  or  injure  another  or 
damage,  deface,  or  otherwise  injure  the  mails  or  other  property,  whether  sealed 
as  first-class  matter  or  not,  are  hereby  declared  to  be  nonmailable  matter,  and 

1342 


Criminal  Code. 


PL  3.  STATUTES  AT  LARGE. 


Mar.  4,  1909. 


shall  not  be  conveyed  in  the  mails  or  delivered  from  any  post  office  or  station 
thereof,  nor  by  any  letter  carrier;  but  the  Postmaster  General  may  permit  the 
transmission  in  the  mails,  from  the  manufacturer  thereof  or  dealer  therein  to 
licensed  physicians,  surgeons,  dentists,  pharmacists,  druggists,  and  veterinarians, 
under  such  rules  and  regulations  as  he  shall  prescribe,  of  any  articles  herein- 
before described  which  arc  not  outwardly  or  of  their  own  force  dangerous  or 
injurious  to  life,  health,  or  propert}^:  Provided,  That  all  spirituous,  vinous, 
malted,  fermented,  or  other  intoxicating  liquors  of  any  kind  are  hereby  de- 
clared to  be  nonmailable,  and  shall  not  be  deposited  in  or  carried  through  the 
mails.  Whoever  shall  knowingly  deposit  or  cause  to  be  deposited  for  mailing 
or  delivery,  or  shall  knowingly  cause  to  be  delivered  by  mail,  according  to  the 
direction  thereon  or  at  any  place  at  which  it  is  directed  to  be  delivered  by  the 
person  to  .whom  it  is  addressed,  anj^thing  declared  by  this  section  to  be  non- 
mailable, unless  in  accordance  with  the  rules  and  regulations  hereby  authorized 
to  be  prescribed  by  the  Postmaster  General,  shall  be  fined  not  more  than  $1,000 
or  imprisoned  not  more  than  two  years,  or  both;  and  whoever  shall  knowingly 
deposit  or  cause  to  be  deposited  for  mailing  or  delivery,  or  shall  knowingly 
cause  to  be  delivered  by  mail,  according  to  the  direction  thereon  or  at  any 
place  to  which  it  is  directed  to  be  delivered  by  the  person  to  whom  it  is  ad- 
dressed, anything  declared  by  this  section  to  be  nonmailable,  whether  trans- 
mitted in  accordance  with  the  rules  and  regulations  authorized  to  be  prescribed 
by  the  Postmaster  General  or  not,  with  the  design,  intent,  or  purpose  to  kill 
or  in  anywise  hurt,  harm,  or  injure  another,  or  damage,  deface,  or  otherwise 
injure  the  mails  or  other  property,  shall  be  fined  not  more  than  $10,000  or 
imprisoned  not  more  than  twenty  years,  or  both. — (35  Stat.,  1131;  41  Stat., 
620-621.) 


This  section  waa  expressly  amended  and  re- 
enacted  to  read  ae  above  by  act  of  May  25, 
1920  (41  Stat.,  620-621). 

Restrictions  on  the  mailing  of  advertisements  or 
orders  for  intoxicants  ^vere  prescril^ed  bv 
act  of  March  3,  1917  (39  Stat.,  1069),  as 


amended  by  acts  of  October  3,  1917  (40 
Stat.,    329),    and    Februarv   24,    1919    (40 
Stat.,  1151). 
See  sections  232  and  235,  below,  as  to  trans- 
portation of  explosives. 


Sec.  218.  [Forging  money  orders  or  signatures  thereon,  etc.]  Wlio- 
ever,  with  intent  to  defraud,  shall  falsely  make,  forge,  counterfeit,  engrave,  or 
print,  or  cause  or  procure  to  be  falsely  made,  forged,  counterfeited,  engraved, 
or  printed,  or  shall  willingly  aid  or  assist  in  falsely  making,  forging,  counter- 
feiting, engraving,  or  printmg,  any  order  in  imitation  of  or  purporting  to  be  a 
money  order  issued  by  the  Post-Office  Department,  or  by  any  postmaster  or 
agent  thereof;  or  whoever  shall  forge  or  counterfeit  the  signature  of  any  post- 
master, assistant  postmaster,  chief  clerk,  or  clerk,  upon  or  to  any  money  order, 
or  postal  note,  or  blank  therefor  provided  or  issued  by  or  under  the  direction 
of  the  Post-Office  Department  of  the  United  States,  or  of  any  foreign  country, 
and  payable  in  the  United  States,  or  any  material  signature  or  indorsement 
thereon,  or  any  material  signature  to  any  receipt  or  certificate  of  identification 
thereon;  or  shall  falsely  alter,  or  cause  or  procure  to  be  falsely  altered  in  any 
material  respect,  or  knowingly  aid  or  assist  in  falsely  so  altering  any  such  money 
order  or  postal  note;  or  shall,  with  intent  to  defraud,  pass,  utter,  or  publish  any 
such  forged  or  altered  money  order  or  postal  note,  knowing  any  material  signa- 
ture or  indorsement  thereon  to  be  false,  forged,  or  counterfeited,  or  any  material 


1343 


Mar.  4,  1909.  Pt.  3.  STATUTES  AT  LARGE.  Criminal  Code. 

alteration  therein  to  have  been  falsely  made;  or  shall  issue  any  money  order  or 
postal  note  without  having  previously  received  or  paid  the  full  amount  of  money 
payable  therefor,  with  the  purpose  of  fraudulently  obtaining  or  receiving,  or 
fraudulently  enabling  any  other  person,  either  directly  or  indirectly,  to  obtain 
or  receive  from  the  United  States,  or  any  officer,  employee,  or  agent  thereof,  any 
sum  of  money  whatever;  or  shall,  with  intent  to  defraud  the  United  States,  or 
any  person,  transmit  or  present  to,  or  cause  or  procure  to  be  transmitted  or 
presented  to,  any  officer  or  employee,  or  at  any  office  of  the  Government  of  the 
United  States,  any  money  order  or  postal  note,  knowing  the  same  to  contain 
any  forged  or  counterfeited  signature  to  the  same,  or  to  any  material  indorse- 
ment, receipt,  or  certificate  thereon,  or  material  alteration  therein  unlawfully 
made,  or  to  have  been  unlawfully  issued  without  previous  payment  of  the 
amount  required  to  be  paid  upon  such  issue,  shall  be  fined  not  more  than  five 
thousand  dollars,  or  imprisoned  not  more  than  five  years,  or  both. — (35  Stat., 
1131-1132;  24  Stat.,  355;  25  Stat.,  187;  sec.  5463,  R.  S.] 

See  note  to  section  189,  above,  as  to  Navy  mail  clerks. 

Sec.  225.  [Misappropriating  postal  funds,  etc.]  Whoever,  being  a 
postmaster  or  other  person  employed  in  or  connected  with  any  branch  of  the 
postal  service,  shall  loan,  use,  pledge,  hypothecate,  or  convert  to  his  own  use, 
or  shall  deposit  in  any  bank,  or  exchange  for  other  funds  or  property,  except  as 
authorized  by  law,  any  money  or  property  coming  into  his  hands  or  under  his 
control  m  any  manner  whatever,  in  the  execution  or  under  color  of  his  office, 
employment,  or  service,  whether  the  same  shall  be  the  money  or  property  of 
the  United  States  or  not;  or  shall  fail  or  refuse  to  remit  to  or  deposit  in  the 
Treasury  of  the  United  States  or  in  a  designated  depository,  or  to  accomit  for 
or  turn  over  to  the  proper  officer  or  agent,  any  such  money  or  property,  when 
required  so  to  do  by  law  or  the  regulations  of  the  Post-Office  Department,  or 
upon  demand  or  order  of  the  Postmaster-General,  either  directly  or  through  a 
duly  authorized  officer  or  agent,  shall  be  deemed  guilty  of  embezzlement;  and 
every  such  person,  as  well  as  every  other  person  advising  or  knowingly  partici- 
pating therein,  shall  be  fined  in  a  sum  equal  to  the  amount  or  value  of  the 
money  or  property  embezzled  or  imprisoned  not  more  than  ten  years,  or  both. 
Any  failure  to  produce  or  to  pay  over  any  such  money  or  property,  when 
reqmred  so  to  do  as  above  provided,  shall  be  taken  to  be  prima  facie  evidence  of 
such  embezzlement;  and  upon  the  trial  of  any  indictment  against  any  person 
for  such  embezzlement  it  shall  be  prima  facie  evidence  of  a  balance  against  him 
to  produce  a  transcript  from  the  account  books  of  the  Auditor  for  the  Post-Office 
Department.  But  nothing  herein  shall  be  construed  to  prohibit  any  post- 
master depositing,  under  the  direction  of  the  Postmater-General,  in  a  national 
bank  designated  by  the  Secretary  of  the  Treasury  for  that  purpose,  to  his  own 
credit  as  postmaster,  any  funds  in  his  charge,  nor  prevent  his  negotiating 
drafts  or  other  evidences  of  debt  through  such  bank,  or  through  United  States 
disbursing  officers,  or  otherwise,  when  instructed  or  required  so  to  do  by  the 
Postmaster-General,  for  the  purpose  of  remitting  surplus  funds  from  one  post- 
office  to  another.— (35  Stat.,  1133-1134;  sees.  4046,  4053.) 

See  note  to  section  189,  above,  as  to  Navy  mail  clerks. 

1344 


Criminal  Code.  Pt.  3.  STATUTES  AT  LARGE.  Mar.  4,  1909. 

Sec.  227.  [Fraudulent  use  of  official  envelopes.]  Whoever  shall 
make  use  of  any  official  envelope,  label,  or  indorsement  authorized  by  law,  to 
avoid  the  payment  of  postage  or  registry  fee  on  his  private  letter,  packet, 
package,  or  other  matter  in  the  mail,  shall  be  fined  not  more  than  three  hun- 
dred dollars.— (35  Stat.,  1134;  19  Stat.,  335.) 

See  act  of  March  3,  1877  (19  Stat.,  335-336);  and  see  laws  noted  under  sections  388  and  398, 
Re\'ised  Statutes. 

Sec.  230.  [Omission  to  take  oath.]  Every  person  employed  in  the 
Postal  Service  shall  be  subject  to  all  penalties  and  forfeitures  for  the  violation 
of  the  laws  relating  to  such  service,  whether  he  has  taken  the  oath  of  office  or 
not.— (35  Stat.,  1134;  sec.  3832,  R.  S.) 

See  note  to  section  189,  above,  as  to  Navy  mail  clerks;  see  also  sections  391-392,  Revised 
Statutes,  and  notes  thereto. 

Chapter   Nine, 
offenses  against  foreign  and  interstate  commerce. 


Sec. 

232.  Dynamite,  etc.,  not  to  be  carried  on  ves- 
sels or  vehicles  carrying  passengers  for 
hire. 

235.  Marking  of  packages  of  explosives;  decep- 
tive marking. 


'■b- 


Sec. 
237.  Importation  and  transportation  of  lottery 

tickets,   etc.,   forbidden. 
245.  Importation  and  transportation  of  obscene, 
etc.,  books,  etc. 


Sec.  232.  [Explosives,  transportation;  naval  forces,  etc.]  It  shall 
be  unlawful  to  transport,  carry,  or  convey,  within  the  limits  of  the  jurisdiction 
of  the  United  States,  any  high  explosive,  such  as,  and  including,  dynamite, 
blasting  caps,  detonating  fuzes,  black  powder,  gunpowder,  or  other  like  ex- 
plosive, on  any  vessel,  car,  or  vehicle  of  any  description  operated  in  the  trans- 
portation of  passengers  by  a  common  carrier  engaged  in  interstate  or  foreign 
commerce,  which  vessel,  car,  or  vehicle  is  carrying  passengers  for  hire:  Pro- 
vided, That  it  shall  be  lawful  to  transport  on  any  such  vessel,  car,  or  vehicle 
smokeless  powder,  primers,  fuses,  not  including  detonating  fuzes,  fireworks, 
or  other  similar  explosives,  and  properly  packed  and  marked  samples  of  explo- 
sives for  laboratory  examination,  not  exceeding  a  net  weight  of  one-half  pound 
each,  and  not  exceeding  twenty  samples  at  one  time  in  a  single  vessel,  car,  or 
vehicle ;  but  such  explosives  shall  not  be  carried  in  that  part  of  a  vessel,  car,  or 
vehicle  which  is  being  used  for  the  transportation  of  passengers  for  hire :  Pro- 
vided further,  That  it  shall  be  lawful  to  transport  on  any  such  vessel,  car,  or 
vehicle  small-arms  ammunition  in  any  quantity,  and  such  fusees,  torpedoes, 
rockets,  or  other  signal  devices  as  may  be  essential  to  promote  safety  in  opera- 
tion: And  provided  further,  That  nothing  in  this  section  shall  be  construed  to 
prevent  the  transportation  of  military  or  naval  forces  with  their  accompanying 
munitions  of  war  on  passenger-equipment  vessels,  cars,  or  vehicles. 

The  words  'detonating  fuzes,"  as  used  in  this  section  shall  be  interpreted 
to  mean  fuzes  used  in  naval  or  military  service  to  detonate  the  high  explosive 
bursting  charges  of  projectiles,  mines,  bombs,  or  torpedoes.  The  word  "fuses" 
as  used  herein  shall  be  interpreted  to  mean  devices  used  in  igniting  the  bursting 
charges  of  projectiles.  The  word  "primers"  as  used  herein  shall  be  interpreted 
to  mean  devices  used  in  igniting  the  propelling  powder  charges  of  ammunition. 

Ie345 


Mar.  4,  1909.  Pi.  .>'.  STA  TUTES  A  T  LARGE.  Criminal  Code. 

The  word  "fuses"  as  used  herein  shall  be  interpreted  to  mean  the  slow-burning 
fuses  used  commercially  and  intended  to  convey  lire  to  an  explosive  or  com- 
bustible mass  slowly  or  without  danger  to  the  person  lighting.  The  word 
"fusees"  as  used  herein  shall  be  interpreted  to  mean  the  fusees  ordinarily  used 
on  steamboats  and  railroads  as  night  signals. — (35  Stat.,  1134-1135;  sec.  5353, 
R.  S.;  35  Stat.,  554;  41  Stat.,  1444.) 

This  section  was  expressly  amended  and  reenacted  to  read  as  above  by  act  of  March  4,  1921 
(41  Stat.,  1444). 

Sec.  235.  [Marking  packages  of  explosives;  penalty  for  violating 
PRECEDING  SECTIONS.]  Every  package  containing  explosives  or  other  dangerous 
articles  when  presented  to  a  common  carrier  for  shipment  shall  have  plainly 
marked  on  the  outside  thereof  the  contents  thereof;  and  it  shall  be  unla^vful 
for  any  person  to  deliver,  or  cause  to  be  delivered,  to  any  common  carrier  engaged 
in  interstate  or  foreign  commerce  by  land  or  water,  or  to  carry  upon  any  vessel, 
car,  or  vehicle  operated  by  any  common  carrier  engaged  in  interstate  or  foreign 
commerce  by  land  or  water  any  explosive,  or  other  dangerous  article,  as  speci- 
fied in  section  233  of  this  Act,  under  any  false  or  deceptive  marking,  description, 
invoice,  shipping  order,  or  other  declaration,  or  without  informing  the  agent  of 
such  carrier  in  writing  of  the  true  character  thereof,  at  or  before  the  time  such 
delivery  or  carriage  is  made.  Whoever  shall  knowingly  violate,  or  cause  to  be 
violated,  any  provision  of  this  section,  or  of  the  three  sections  last  preceding, 
or  any  regulation  made  by  the  Interstate  Commerce  Commission  in  pursuance 
thereof,  shall  be  fined  not  more  than  $2,000  or  imprisoned  not  more  than 
eighteen  months,  or  both. —  (35  Stat.,  1135;  35  Stat.,  555;  sec.  5355,  R.  S. ;  41 
Stat.,  1445.) 

This  section  was  expressly  amended  and  reenacted  to  read  as  above  by  act  of  March  4,  1921 
(41  Stat.,  1445). 

Sec.  237.  [Importing,  epc,  lottery  tickets,  etc.]  Whoever  shall  bring 
or  cause  to  be  brought  into  the  United  States  or  any  place  subject  to  the  juris- 
diction thereof,  from  any  foreign  country,  for  the  purpose  of  disposing  of  the 
same,  any  paper,  certificate,  or  instrument  purporting  to  be  or  to  represent  a 
ticket,  chance,  share,  or  interest  in  or  dependent  upon  the  event  of  a  lottery, 
gift  enterprise,  or  similar  scheme,  offering  prizes  dependent  in  whole  or  in  part 
upon  lot  or  chance,  or  any  advertisement  of,  or  list  of  the  prizes  drawn  or 
awarded  by  means  of,  any  such  lottery,  gift  enterprise,  or  similar  scheme;  or 
shall  therein  knowingly  deposit  or  cause  to  be  deposited  with  any  express  com- 
pany or  other  common  carrier  for  carriage,  or  shall  carry,  from  one  State, 
Territory,  or  District  of  the  United  States,  or  place  noncontiguous  to  but  subject 
to  the  jurisdiction  thereof,  to  any  other  State,  Territory,  or  District  of  the  United 
States,  or  place  noncontiguous  to  but  subject  to  the  jurisdiction  thereof,  or 
from  any  place  in  or  subject  to  the  jurisdiction  of  the  United  States  through  a 
foreign  country  to  any  place  in  or  subject  to  the  jurisdiction  thereof,  or  from 
any  place  in  or  subject  to  the  jurisdiction  of  the  United  States  to  a  foreign 
country,  any  paper,  certificate,  or  instrument  purporting  to  be  or  to  represent 
a  ticket,  chance,  share,  or  interest  in  or  dependent  upon  the  event  of  any  such 
lottery,  gift  enterprise,  or  similar  scheme,  or  any  advertisement  of,  or  list  of  the 
prizes  drawn  or  awarded  by  means  of,  any  such  lottery,  gift  enterprise,  or 

1346 


Criminal  Code.  Ft.  3.  STATUTES  AT  LARGE.  Mar.  4,  1909. 

similar  scheme,  or  shall  knowingly  take  or  receive,  or  cause  to  be  taken  or 
received,  any  such  paper,  certificate,  instrument,  advertisement,  or  list  so 
brought,  deposited,  or  transported,  shall,  for  the  first  offense,  be  fined  not  more 
than  one  thousand  dollars,  or  imprisoned  not  more  than  two  years,  or  both; 
and  for  any  subsequent  offense  shall  be  imprisoned  not  more  than  two  years. — 
(35  Stat.,  1136;  28  Stat.,  963.) 

Sec.  245.  [Importing  or  transporting  obscene  books,  etc.]  Whoever 
shall  bring  or  cause  to  be  brought  into  the  United  States,  or  any  place  subject 
to  the  jurisdiction  thereof,  from  any  foreign  country,  or  shall  therein  know- 
ingly deposit  or  cause  to  be  deposited  with  any  express  company  or  other 
common  carrier,  for  carriage  from  one  State,  Territory,  or  District  of  the 
United  States  or  place  noncontiguous  to  but  subject  to  the  jurisdiction  thereof, 
to  any  other  State,  Territory,  or  District  of  the  United  States,  or  place  non- 
contiguous to  but  subject  to  the  jurisdiction  thereof,  or  from  any  place  in  or 
subject  to  the  jurisdiction  of  the  United  States,  through  a  foreign  country,  to 
any  place  in  or  subject  to  the  jurisdiction  thereof,  or  from  any  place  in  or  sub- 
ject to  the  jurisdiction  of  the  United  States  to  a  foreign  country,  any  obscene, 
lewd,  or  lascivious,  or  any  filthy  book,  pamphlet,  picture,  motion-picture  film, 
paper,  letter,  writing,  print,  or  other  matter  of  indecent  character,  or  any  drug, 
medicine,  article,  or  thing  designed,  adapted,  or  intended  for  preventing  con- 
ception, or  producing  abortion,  or  for  any  indecent  or  immoral  use;  or  any  -writ- 
ten or  printed  card,  letter,  circular,  book,  pamphlet,  advertisement,  or  notice 
of  any  kind  giving  information,  directly  or  indirectly,  w^here,  how,  or  of  whom, 
or  by  what  means  any  of  the  hereinbefore  mentioned  articles,  matters,  or  things 
may  be  obtained  or  made;  or  whoever  shall  knowingly  take  or  cause  to  be 
taken  from  such  express  company  or  other  common  carrier  any  matter  or  thing 
the  depositing  of  which  for  carriage  is  herein  made  unla^^^"ul,  shall  be  fined  not 
more  than  $5,000  or  imprisoned  not  more  than  five  years,  or  both. — (35  Stat., 
1138;  33  Stat.,  705;  29  Stat.,  512;  41  Stat.,  1060-1061.) 

This  section  was  expressly  amended  and  reenacted  to  read  as  al)ove  bv  act  of  June  5,  1920 
(41  Stat.,  1060-106 1).' 

Chapter  Ten. 
the  slave  trade  and  peonage. 


Sec. 

260.  Seizure  of  vessels   engaged   in    the   slave 
trade. 


Sec. 

267.  Instructions    to    commanders    of    armed 

vessels. 


Sec.  260.  [Seizure  of  vessels  in  slave  trade;  use  of  naval 
FORCES.]  The  President  is  authorized,  when  he  deems  it  expedient,  to  man 
and  employ  any  of  the  armed  vessels  of  the  United  States  to  cruise  wherever 
he  may  judge  attempts  are  making  to  carry  on  the  slave  trade,  by  citizens  or 
residents  of  the  United  States,  in  contravention  of  laws  prohibitory  of  the 
same;  and,  in  such  case,  he  shall  instruct  the  commanders  of  such  armed  ves- 
sels to  seize,  take,  and  bring  into  any  port  of  the  United  States,  to  be  pro- 
ceeded against  according  to  law,  all  American  vessels  wheresoever  found, 
which  may  have  on  board,  or  which  may  be  intended  for  the  purpose  of  taking 
on  board,  or  of  transporting,  or  may  have  transported  any  person,  in  violation 

1347 


Mar.  4,  1909. 


Pt.  3.  STA  TUTES  A  T  LARGE. 


Criminal  Code. 


of  the  provisions  of  any  Act  of  Congress  prohibiting  the  traffic  in  slaves. —  (35 
Stat.,  1140-1141;  sec.  5557,  R.  S.) 

Sec.  267.  [Instructions  to  commanders  of  armed  vessels.]  The 
President  is  authorized  to  issue  instructions  to  the  commanders  of  the  armed 
vessels  of  the  United  States,  directing  them,  whenever  it  is  practicable,  and 
under  such  rules  and  regulations  as  he  may  prescribe,  to  proceed  directly  to 
the  country  from  which  they  were  taken,  and  there  hand  over  to  the  agent  of 
the  United  States  all  such  persons,  delivered  from  on  board  vessels  seized  in 
the  prosecution  of  the  slave  trade;  and  they  shall  afterwards  bring  the  cap- 
tured vessels  and  persons  engaged  in  prosecuting  such  trade  to  the  United 
States  for  trial  and  adjudication. —  (35  Stat.,  1141;  sec.  5567,  R.  S.) 

Chapter  Eleven. 

offenses  within  the  admiralty  and  maritime  and  the  territorial  [or 

exclusive]   jurisdiction    of    the    UNITED    STATES. 


Sec. 

272.  Places  within  or  waters  upon  which  sec- 

tions of  this  chapter  shall  apply. 

273.  Murder. 

274.  Manslaughter. 

275.  Punishment  for  murder;  for  manslaughter. 

276.  Assault  with  intent  to  commit  murder,  etc. 

277.  Attempt    to    commit    murder    or    man- 

slaughter. 

278.  Rape.' 

279.  Having  carnal  knowledge  of  female  under 

sixteen. 


Sec. 

283.  Maiming. 

284.  Robbery. 

285.  Arson  of  dwelling  house. 

286.  Arson  of  other  buildings,  etc. 

287.  I.arceny. 

288.  Receiving,  etc.,  stolen  goods. 

289.  Laws    of    States   adopted    for    punishing 

\vrongful  acts,  etc. 


Sec.  272.  [Places  within  or  waters  upon  which  this  chapter 
SHALL  APPLY.]  The  crimcs  and  offenses  defined  in  this  chapter  shall  be  pun- 
ished as  herein  prescribed : 

First.  When  committed  upon  the  high  seas,  or  on  any  other  waters  within  the 
admiralty  and  maritime  jurisdiction  of  the  United  States  and  out  of  the  juris- 
diction of  any  particular  State,  or  when  committed  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States  and  out  of  the  jurisdiction  of  any 
particular  State  on  board  any  vessel  belonging  in  whole  or  in  part  to  the 
United  States  or  any  citizen  thereof,  or  to  any  corporation  created  by  or  under 
the  laws  of  the  United  States,  or  of  any  State,  Territory,  or  District  thereof. 

Second.  When  committed  upon  any  vessel  registered,  licensed,  or  enrolled 
under  the  laws  of  the  United  States,  and  being  on  a  voyage  upon  the  waters  of 
any  of  the  Great  Lakes,  namely:  Lake  Superior,  Lake  IMichigan,  Lake  Huron, 
Lake  Saint  Clair,  Lake  Erie,  Lake  Ontario,  or  any  of  the  waters  connecting 
any  of  said  lakes,  or  upon  the  River  Saint  Lawrence  where  the  same  constitutes 
the  International  boundary  line. 

Third.  When  committed  within  or  on  any  lands  reserved  or  acquired  for  the 
exclusive  use  of  the  United  States,  and  under  the  exclusive  jurisdiction  thereof, 
or  any  place  purchased  or  otherwise  acc^uired  by  the  United  States  by  consent 
of  the  legislature  of  the  State  in  which  the  same  shall  be,  for  the  erection  of  a 
fort,  magazine,  arsenal,  dock-yard,  or  other  needful  building. 

Fourth.  On  any  island,  rock,  or  key,  containing  deposits  of  guano,  wliich 
may,  at  the  discretion  of  the  President,  be  considered  as  appertaining  to  the 
United  States.— (35  Stat.,  1142-1143;  sec.  5339,  R.  S.;  26  Stat.,  424.) 


1348 


Criminal  Code.  Ft.  3.  STATUTES  AT  LARGE.  Mar.  4,  1909. 

Sec.  273.  [Murder  defined.]  Murder  is  the  unlawful  killing  of  a  human 
being  with  malice  aforethought.  Every  murder  perpetrated  by  poison,  lying 
in  wait,  or  any  other  kind  of  willful,  deliberate,  malicious,  and  premeditated 
killing;  or  committed  in  the  perpetration  of,  or  attempt  to  perpetrate,  any  ar- 
son, rape,  burglary,  or  robbery;  or  perpetrated  from  a  premeditated  design 
unlawH^ully  and  maliciously  to  effect  the  death  of  any  human  being  other  than 
him  who  is  killed,  is  murder  in  the  first  degree.  Any  other  murder  is  murder 
in  the  second  degree.     (35  Stat.,  1143.) 

Sec.  274.  [Manslaughter  defined.]  Manslaughter  is  the  unlawful  kill- 
ing of  a  human  being  without  malice.     It  is  of  two  kinds: 

First.  Voluntary — Upon  a  sudden  Cjuarrel  or  heat  of  passion. 

Second.  Involuntary — In  the  commission  of  an  unlawful  act  not  amounting 
to  a  felony,  or  in  the  commission  of  a  la\\'ful  act  wliich  might  produce  death, 
in  an  unla^\^'ul  manner,  or  without  due  caution  and  circumspection. —  (35  Stat., 
1143;  sec.  5341,  R.  S.) 

Sec.  275.  [Punishment  for  murder  and  manslaughter.]  Every 
person  guilty  of  murder  in  the  first  degree  shall  suffer  death.  Every  person 
guilty  of  murder  in  the  second  degree  shall  be  imprisoned  not  less  than  ten 
3'ears  and  may  be  imprisoned  for  life.  Every  person  guilty  of  voluntary  man- 
slaughter shall  be  imprisoned  not  more  than  ten  years.  Every  person  guilty 
of  involuntary  manslaughter  shall  be  imprisoned  not  more  than  three  years,  or 
fined  not  exceeding  one  thousand  dollars,  or  both. —  (35  Stat.,  1143;  sees.  5339, 
,5343,  R.  S.) 

Sec.  276.  [Assaih.t  with  intent  to  commit  murder,  etc.]  Whoever 
shall  assault  another  with  intent  to  commit  murder,  or  rape,  shall  be  imprisoned 
not  more  than  twenty  years.  Whoever  shall  assault  another  with  intent  to 
commit  any  felony,  except  murder,  or  rape,  shall  be  fined  not  more  than  three 
thousand  dollars,  or  imprisoned  not  more  than  ten  years,  or  both.  ^Yhoever, 
with  intent  to  do  bodily  harm,  and  without  just  cause  or  excuse,  shall  assault 
another  with  a  dangerous  weapon,  instrument,  or  other  thing,  shall  be  fined 
not  more  than  one  thousand  dollars,  or  imprisoned  not  more  than  five  years,  or 
both.  Whoever  shall  unlawfully  strike,  beat,  or  wound  another,  shall  be  fined 
not  more  than  five  hundred  dollars,  or  imprisoned  not  more  than  six  months, 
or  both.  Whoever  shall  unlawfully  assault  another,  shall  be  fined  not  more 
than  three  hundred  dollars,  or  imprisoned  not  more  than  three  months,  or 
both.— (35  Stat.,  1143;  sec.  5346,  R.  S.) 

Sec.  277.  [Attempt  to  commit  murder  or  manslaughter.]  Wlio- 
ever  shall  attempt  to  commit  murder  or  manslaughter,  except  as  provided  in 
the  preceding  section,  shall  be  fined  not  more  than  one  thousand  dollars  and 
imprisoned  not  more  than  three  years. —  (35  Stat.,  1143;  sec.  5342,  R.  S.) 

Sec.  278.  [Rape.]  Whoever  shall  commit  the  crime  of  rape  shall  suffer 
death.— (35  Stat.,  1143;  sec.  5345,  R.  S.) 

Sec.  279.  [Having  carnal  knowledge  of  female  under  sixteen.] 
"Wlioever  shall  carnally  and  unhiAA^ully  know  any  female  under  the  age  of  six- 
teen years,  or  shall  be  accessory  to  such  carnal  and  unlawful  knowledge  before 
the  fact,  shall,  for  a  first  offense,  be  imprisoned  not  more  than  fifteen  years,  and 
for  a  subsecjuent  offense  be  imprisoned  not  more  than  thirty  years. —  (35  Stat., 
1143;  25  Stat.,  658.) 

1349 


Mar.  4,  1909.  Pt.  S.  STATUTES  AT  LARGE.  Criminal  Code. 

Sec.  283.  [Maiming,  etc.]  Whoever,  with  intent  to  maim  or  disfigure, 
shall  cut,  bite,  or  slit,  the  nose,  ear,  or  lip,  or  cut  out  or  disable  the  tongue,  or  put 
out  or  destroy  an  eye,  or  cut  off  or  disable  a  limb  or  any  member  of  another 
person;  or  whoever,  with  like  intent,  shall  throw  or  pour  upon  another  person, 
any  scalding  hot  water,  vitriol,  or  other  corrosive  acid,  or  caustic  substance 
whatever,  shall  be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  seven  years,  or  both. —  (35  Stat.,  1144;  sec.  5348,  R.  S.) 

Sec.  284.  [Robbery.]  Wlioever,  by  force  and  violence,  or  by  putting  in 
fear,  shall  feloniously  take  from  the  person  or  presence  of  another  anything  of 
value,  shall  be  imprisoned  not  more  than  fifteen  years. — (35  Stat.,  1144.) 

Sec.  285.  [Arson  of  dwelling  house.]  Whoever  shall  willfully  and  mali- 
ciously set  fire  to,  burn,  or  attempt  to  burn,  or  by  means  of  a  dangerous  explo- 
sive destroy  or  attempt  to  destroy,  any  dwelling  house,  or  any  store,  barn, 
stable,  or  other  building,  parcel  of  a  dw^elling  house,  shall  be  imprisoned  not 
more  than  twenty  years. — (35  Stat.,  1144;  sec.  5385,  R.  S.) 

Sec.  286.  [Arson  of  other  BL^LDINGS,  etc.]  WTioever  shall  maliciously 
set  fire  to,  burn,  or  attempt  to  burn,  or  by  any  means  destroy  or  injure,  or 
attempt  to  destroy  or  injure,  any  arsenal,  armory,  magazine,  ropewalk,  ship 
house,  warehouse,  blockliouse,  or  barrack,  or  any  storehouse,  barn,  or  stable, 
not  parcel  of  a  dwelling  house,  or  any  other  building  not  mentioned  in  the  sec- 
tion last  preceding,  or  any  vessel  built,  building,  or  undergoing  repair,  or  any 
light-house,  or  beacon,  or  any  machinery,  timber,  cables,  rigging,  or  other 
materials  or  appliances  for  building,  repairing,  or  fitting  out  vessels,  or  any 
pile  of  wood,  boards,  or  other  lumber,  or  any  military,  naval,  or  victualing 
stores,  arms,  or  other  munitions  of  w^ar,  shall  be  fined  not  more  than  five  thou- 
sand dollars  and  imprisoned  not  more  than  twenty  years. —  (35  Stat.,  1144;  sees. 
5386,  5387,  R.  S.) 

See  section  301,  below. 

Sec.  287.  [Larceny;  value  of  written  instrument.]  Whoever  shall 
take  and  carry  away,  with  intent  to  steal  or  purloin,  any  personal  property  of 
another,  shall  be  punished  as  follows :  If  the  property  taken  is  of  a  value  exceed- 
ing fifty  dollars,  or  is  taken  from  the  person  of  another,  by  a  fine  of  not  more 
than  ten  thousand  dollars,  or  imprisonment  for  not  more  than  ten  years,  or 
both;  in  all  other  cases,  by  a  fine  of  not  more  than  one  thousand  dollars,  or  by 
imprisonment  not  more  than  one  year,  or  both.  If  the  property  stolen  consists 
of  any  evidence  of  debt,  or  other  ^^Titten  instrument,  the  amount  of  money  due 
thereon,  or  secured  to  be  paid  thereby,  and  remaining  unsatisfied,  or  which  in 
any  contingency  might  be  collected  thereon,  or  the  value  of  the  property  the 
title  to  which  is  sho^\Ti  thereby,  or  the  sum  which  might  be  recovered  in  the 
absence  thereof,  shall  be  deemed  to  be  the  value  of  the  property  stolen. — (35 
Stat.,  1144-1145;  sec.  5356,  R.  S.) 

Sec.  288.  [Receiving  stolen  goods,  etc.]  Wlioever  shall  buy,  receive,  or 
conceal,  any  money,  goods,  bank  notes,  or  other  thing  which  may  be  the  sub- 
ject of  larceny,  which  has  been  feloniously  taken,  stolen,  or  embezzled,  from  any 
other  person,  knowing  the  same  to  have  been  so  taken,  stolen,  or  embezzled, 
shall  be  fined  not  more  than  one  thousand  dollars  and  imprisoned  not  more  than 


1360 


Criminal  Code. 


Pt.  3.  STATUTES  AT  LARGE. 


Mar.  4,  1909. 


thi"ee  years ;  and  such  person  may  be  tried  either  before  or  after  the  conviction 
of  the  principal  offender. — (35  Stat.,  1145;  sec.  5357,  R.  S.) 
See  section  334,  below. 

Sec.  289.  [State  laws  adopted  in  Federal  reservations.]  Whoever, 
within  the  territorial  limits  of  any  State,  organized  Territory,  or  District,  but 
within  or  upon  any  of  the  places  now  existing  or  hereafter  reserved  or  acquired, 
described  in  section  two  hundred  and  seventy-two  of  this  Act,  shall  do  or  omit 
the  doing  of  any  act  or  thing  which  is  not  made  penal  by  any  law  of  Congress, 
but  which  if  committed  or  omitted  within  the  jurisdiction  of  the  State,  Terri- 
tory, or  District  in  which  such  place  is  situated,  by  the  laws  thereof  now  in  force 
would  be  penal,  shall  be  deemed  guilty  of  a  like  offense  and  be  subject  to  a  like 
punishment;  and  every  such  State,  Territorial,  or  District  law  shall,  for  the 
purposes  of  this  section,  continue  in  force,  notwithstanding  any  subsequent 
repeal  or  amendment  thereof  by  any  such  State,  Territory  or  District. — (35 
Stat.,  1145;  sec.  5391,  R.  S.;  30  Stat.,  717.) 

Chapter  Twelve. 

PIRACY   and    other    OFFENSES    UPON    THE    SEAS. 


Sec. 
290. 
291. 
292. 
293. 
294. 


Piracy  under  the  law  of  nations. 
Maltreatment  of  crew  by  officers  of  vessel. 
Inciting  revolt  or  mutiny  on  shipboard. 
Revolt  and  mutiny  on  shipboard. 
Seaman  laying  \'iolent  hands  on  his  com- 
mander. 


Sec. 
295. 
297. 
299. 
301. 

310. 


Abandonment  of  mariners  in  foreign  ports. 
Plundering  vessel  in  distress,  etc. 
Breaking  and  ent<>ring  vessel,  etc. 
Other  person  destroying  or  attempting  to 

destroy   vessel   at  sea. 
"Vessels  of  the  United  States"  defined. 


Sec.  290.  [Piracy.]  Whoever,  on  the  high  seas,  commits  the  crime  of 
piracy  as  defined  by  the  law  of  nations,  and  is  afterwards  brought  into  or  found 
in  the  United  States,  shall  be  imprisoned  for  life. — (35  Stat.,  1145;   sec.  5368, 

R.  S.) 

See  section  294,  below. 

Sec.  291.  [Maltreatment  of  crew  by  officers.]  Whoever,  being  the 
master  or  officer  of  a  vessel  of  the  United  States,  on  the  high  seas,  or  on  any 
other  waters  within  the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
beats,  wounds,  or  without  justifiable  cause,  imprisons  any  of  the  crew  of  such 
vessel,  or  withholds  from  them  suitable  food  and  nourishment,  or  infhcts  upon 
them  any  cruel  and  unusual  punisliment,  shall  be  fined  not  more  than  one 
thousand  dollars,  or  imprisoned  not  more  than  five  years,  or  both.  *  *  *^ 
—(35  Stat.,  1145;  29  Stat.,  691;  sec.  5347,  R.  S.) 

See  section  310,  below,  for  definition  of  "vessel  of  the  United  States." 

Sec.  292.  [Inciting  revolt  or  mutiny  on  sihpboard.]  Whoever,  being 
of  the  crew  of  a  vessel  of  the  United  States,  on  the  high  seas,  or  on  any  other 
waters  within  the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
endeavors  to  make  a  revolt  or  mutiny  on  board  such  vessel,  or  combines,  con- 
spires, or  confederates  with  any  other  person  on  board  to  make  such  revolt  or 
mutiny,  or  solicits,  incites,  or  stirs  up  any  other  of  the  crew  to  disobey  or  resist 
the  lawful  orders  of  the  master  or  other  officer  of  such  vessel,  or  to  refuse  or 
neglect  their  proper  duty  on  board  thereof,  or  to  betray  their  proper  trust,  or 


1351 


Mar.  4,  1909.  Pi.  S.  STATUTES  AT  LARGE.  Ciiminal  Code. 

assembles  with  others  in  a  tumultuous  and  mutinous  manner,  or  makes  a  riot 
on  board  thereof,  or  unlawfully  confines  the  master  or  other  commanding  officer 
thereof,  shall  be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  five  years,  or  both. —  (35  Stat.,  114G;  sec.  5359,  R.  S.) 
See  section  310,  below,  for  definition  of  "vessel  of  the  United  States." 

Sec.  293.  [Revolt  or  mutiny  on  sinPBOARD.]  Wlioever,  being  of  the 
crew  of  a  vessel  of  the  United  States,  on  the  high  seas,  or  on  any  other  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the  United  States,  unlaw- 
fidly  and  with  force,  or  by  fraud,  or  intimidation,  usurps  the  command  of 
such  vessel  from  the  master  or  other  lawful  officer  in  command  thereof,  or 
deprives  him  of  authority  and  command  on  board,  or  resists  or  prevents  him 
in  the  free  and  laA\dful  exercise  thereof,  or  transfers  such  authority  and  command 
to  another  not  lawfully  entitled  thereto,  is  guilty  of  a  revolt  and  mutiny,  and 
shall  be  fined  not  more  than  two  thousand  dollars  and  imprisoned  not  more 
than  ten  years.— (35  Stat.,  1146;  sec.  5360,  R.  S.) 

See  section  310,  below,  for  definition  of  "vessel  of  the  United  States." 

Sec.  294.  [Seaman  laying  hands  on  commander.]  Wlioever,  being 
a  seaman,  lays  violent  hands  upon  his  commander,  thereby  to  hinder  and 
prevent  his  fighting  in  defense  of  his  vessel  or  the  goods  intrusted  to  him,  is 
a  pirate,  and  shall  be  imprisoned  for  life. — (35  Stat.,  1146;  sec.  5369,  R.  S.) 

Sec.  295.  [Abandonment  of  mariner  in  foreign  port.]  Whoever, 
being  master  or  commander  of  a  vessel  of  the  United  States,  while  abroad, 
maliciously  and  without  justifiable  cause  forces  any  oflficer  or  mariner  of  such 
vessel  on  shore,  in  order  to  leave  him  behind  in  any  foreign  port  or  place,  or 
refuses  to  bring  home  again  all  such  officers  and  mariners  of  such  vessel  whom 
he  carried  out  with  him,  as  are  in  a  condition  to  return  and  willing  to  return, 
when  he  is  ready  to  proceed  on  his  homeward  voyage,  shall  be  fined  not  more 
than  five  hundred  dollars,  or  imprisoned  not  more  than  six  months,  or  both. — 
(35  Stat.,  1146;  sec.  5363,  R.  S.) 

See  section  310,  below,  for  definition  of  "vessel  of  the  United  States." 

Sec.  297.  [Plundering  vessel  in  distress,  etc.]  Whoever  plunders, 
steals,  or  destroys  any  money,  goods,  merchandise,  or  other  effects,  from  or 
belonging  to  any  vessel  in  distress,  or  wrecked,  lost,  stranded,  or  cast  away, 
upon  the  sea,  or  upon  any  reef,  slioal,  bank,  or  rocks  of  the  sea,  or  in  any  other 
place  within  the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
shall  be  fined  not  more  than  five  thousand  dollars  and  imprisoned  not  more 
than  ten  years ;  and  whoever  willfully  obstructs  the  escape  of  any  person  endeav- 
oring to  save  his  life  from  such  vessel,  or  the  wTeck  thereof;  or  whoever  holds  out 
or  shows  any  false  light,  or  extinguishes  any  true  light,  with  mtent  to  bring 
any  vessel  sailing  upon  the  sea  into  danger,  or  distress,  or  shipwreck,  shall  be 
imprisoned  not  less  than  ten  years  and  may  be  imprisoned  for  life. — (35  Stat., 
1146;  sec.  5358,  R.  S.) 

See  section  1536,  Revised  Statutes,  and  act  of  August  1,  1912  (37  Stat.,  242). 

Sec.  299.  [Breaking  and  entering  vessel,  etc.]  Whoevc-r,  upon 
the  high  seas  or  on  any  other  waters  within  the  admiralty  and  maritime  juris- 
diction of  the  United  States,  and  out  of  the  jurisdiction  of  any  particular  State, 

1352 


Criminal  Code. 


Pt.  S.  STATUTES  AT  LARGE. 


Mar.  4,  1909. 


breaks  or  enters  any  vessel,  with  intent  to  commit  any  felony,  or  maliciously 
cuts,  spoils,  or  destroys  any  cordage,  cable,  buoys,  buoy-rope,  head-fast,  or 
other  fast,  fixed  to  the  anchor  or  moorings  belonging  to  any  vessel,  shall  be 
fined  not  more  than  one  thousand  dollars  and  imprisoned  not  more  than  five 
years.— (35  Stat.,  1147;  sec.  5362,  R.  S.) 

Sec.  301.  [Destroying  vessel,  etc.]  Whoever,  not  being  an  owner, 
upon  the  high  seas  or  on  any  other  waters  within  the  admiralty  and  maritime 
jurisdiction  of  the  United  States,  willfully  and  corruptly  casts  away  or  other- 
wise destroys  any  vessel  of  the  United  States  to  which  he  belongs,  or,  willfully, 
with  intent  to  destroy  the  same,  sets  fire  to  any  such  vessel,  orother\vise  attempts 
the  destruction  thereof,  shall  be  imprisoned  not  more  than  ten  years. — (35 
Stat.,  1147;  28  Stat.,  233;  sees.  5366,  5367,  R.  S.) 

See  section  286,  above,  as  to  arson  of  vessel. 

See  section  310,  below,  for  definition  of  "  vessel  of  the  United  States." 

Sec.  310.  ["Vessel  of  the  united  states,"  defined.]  The  words 
"vessel  of  the  United  States"  wherever  they  occur  in  this  chapter  shall  be 
construed  to  mean  a  vessel  belonging  in  whole  or  in  part  to  the  United  States, 
or  any  citizen  thereof,  or  any  corporation  created  by  or  under  the  laws  of  the 
United  States  or  of  any  State,  Territory,  or  District  thereof. — (35  Stat.,  1148.) 

Chapter  Thirteen. 


certain     offenses    in    the     territories     [or    elsewhere     within 
exclusive  jurisdiction  of  the  united  states]. 


THE 


Sec. 


311.  Places    within    which    sections    of    this 

chapter  shall  apply. 

312.  Circulation    of    obscene    literature;    pro- 


moting abortion. 


Sec. 

314.  Unlawful  cohabitation. 

316.  Adultery. 

317.  Incest. 

318.  Fornication. 


Sec.  311.  [Places  within  which  Tins  chapter  shall  apply.]  Except 
as  otherwise  expressly  provided,  the  offenses  defined  in  tliis  chapter  shall  be 
punished  as  hereinafter  provided,  when  committed  within  any  Territory  or 
District,  or  within  or  upon  any  place  within  the  exclusive  jurisdiction  of  the 
United  States.— (35  Stat.,   1148-1149.) 

Sec.  312.  [Circulating  obscene  literature,  etc.]  Wlioever  shall 
sell,  lend,  give  away,  or  in  any  manner  exhibit,  or  offer  to  sell,  lend,  give  away, 
or  in  any  manner  exhibit,  or  shall  otherwise  publish  or  offer  to  publish  in  any 
manner,  or  shall  have  in  his  possession  for  any  such  purpose,  any  obscene  book, 
pamphlet,  paper,  writing,  advertisement,  circular,  print,  picture,  drawing,  or 
other  representation,  figure,  or  image  on  or  of  paper  or  other  material,  or  any 
cast,  instrument,  or  other  article  of  an  immoral  nature,  or  any  drug  or  medi- 
cine, or  any  article  whatever,  for  the  prevention  of  conception,  or  for  causing 
unlawful  abortion,  or  shall  advertise  the  same  for  sale,  or  shall  wTite  or  print, 
or  cause  to  be  written  or  printed,  any  card,  circular,  book,  pamplilet,  adver- 
tisement, or  notice  of  any  kind,  stating  when,  where,  how,  or  of  whom,  or 
what  means,  any  of  the  articles  above  mentioned  can  be  purchased  or  obtained, 
or  shall  manufacture,  draw,  or  print,  or  in  anywise  make  any  of  such  articles, 
shall  be  fined  not  more  than  two  thousand  dollars,  or  imprisoned  not  more 
than  five  years,  or  both. — (35  Stat.,  1149;  sec.  5389,  R.  S.) 


1353 


Mar.  4,  1909.  Pt.  S.  STATUTES  AT  LARGE.  Criminal  Code. 

Sec.  314.  [Unlawful  cohabitation.]  If  any  male  person  cohabits  with 
more  than  one  woman,  he  shall  be  fined  not  more  than  tliree  hundred  dollars,  or 
imprisoned  not  more  than  six  months,  or  both. — (35  Stat.,  1149;  22  Stat.,  31.) 

Sec.  3160.  [Adultery.]  Whoever  shall  commit  adultery  shall  be  im- 
prisoned not  more  than  three  years;  and  when  the  act  is  committed  between  a 
married  woman  and  a  man  who  is  unmarried,  both  parties  to  such  act  shall  be 
deemed  guilty  of  adultery;  and  when  such  act  is  committed  between  a  married 
man  and  a  woman  who  is  unmarried,  the  man  shall  be  deemed  guilty  of  adultery. 
—(35  Stat.,  1149;  24  Stat.,  635.) 

Sec.  317.  [Incest.]  Whoever,  being  related  to  another  person  within 
and  not  including  the  fourth  degree  of  consanguinity  computed  according  to 
the  rules  of  the  civil  law,  shall  marry  or  cohabit  with,  or  have  sexual  inter- 
course with  such  other  so  related  person,  knowing  her  or  him  to  be  within  said 
degree  of  relationship,  shall  be  deemed  guilty  of  incest,  and  shall  be  imprisoned 
not  more  than  fifteen  years. — (35  Stat.,  1149;  24  Stat.,  636.) 

Sec.  318.  [Fornication.]  If  any  unmarried  man  or  woman  commits 
fornication,  each  shall  be  fined  not  more  than  one  hundred  dollars,  or  im- 
prisoned not  more  than  six  months. — (35  Stat.,  1149;  24  Stat.,  636.) 

Chapter  Fourteen, 
general  and  special  provisions. 


Sec. 

332.  Who  are  principals. 

333.  Punishment  of  accessories. 

334.  Accessories  to  robbery  or  piracy. 

335.  Felonies  and  misdemeanors. 


Sec. 

336.  Murder  and   manslaughter;   place  where 
crime  deemed  to  have  been  committed. 

337.  Construction  of  certain  words. 

338.  Omission  of  words  "hard  labor"  not  to 
deprive  court  of  power  to  impose. 

Sec.  332.  [Principals  defined.]  Whoever  directly  commits  any  act 
constituting  an  offense  defined  in  any  law  of  the  United  States,  or  aids,  abets, 
counsels,  commands,  induces,  or  procures  its  commission_,  is  a  principal. — 
(35  Stat.,  1152;  sees.  5323,  5427,  R.  S.) 

Sec.  333.  [Punishment  of  accessories.]  Whoever,  except  as  otherwise 
expressly  provided  by  law,  being  an  accessory  after  the  fact  to  the  commission 
of  any  offense  defined  in  any  law  of  the  Unietd  States,  shall  be  imprisoned  not 
exceeding  one-half  the  longest  term  of  imprisonment,  or  fined  not  exceeding 
one-half  the  largest  fine  prescribed  for  the  punishment  of  the  principal,  or  both, 
if  the  principal  is  punishable  by  both  fine  and  imprisonment;  or  if  the  principal 
is  punishable  by  death,  then  an  accessory  shall  be  imprisoned  not  more  than  ten 
years. — (35  Stat.,  1152;  sees.  5533-5535,  R.  S.) 

Sec.  334.  [Accessories  to  robbery  or  piracy.]  Whoever,  without 
lawful  authority,  receives  or  takes  into  custody  any  vessel,  goods,  or  other 
property,  feloniously  taken  by  any  robber  or  pirate  against  the  laws  of  the 
United  States,  knowing  the  same  to  have  been  feloniously  taken,  and  whoever, 
knowing  that  such  pirate  or  robber  has  done  or  committed  any  such  piracy  or 
robbery,  on  the  land  or  at  sea,  receives,  entertains,  or  conceals  any  such  pirate 
or  robber,  is  an  accessory  after  the  fact  to  such  robbery  or  piracy,  and  shall  be 
imprisoned  not  more  than  ten  years. — (35  Stat.,  1152;  sees.  5324,  5533,  R.  S.) 

See  section  288,  above. 

1354 


Pt.  3.  STATUTES  AT  LARGE.  April  12,  1910. 

Sec.  335.  [Felonies  and  misdemeanors.]  All  offenses  which  may  be 
punished  by  death,  or  imprisonment  for  a  term  exceeding  one  year,  shall  be 
deemed  felonies.  All  other  offenses  shall  be  deemed  misdemeanors. — (35 
Stat.,  1152.) 

Sec.  336.  [Murder  and  manslaughter;  place  where  committed.] 
In  all  cases  of  murder  or  manslaughter,  the  crime  shall  be  deemed  to  have  been 
committed  at  the  place  where  the  injury  was  inflicted,  or  the  poison  admin- 
istered, or  other  means  employed  which  caused  the  death,  without  regard  to 
the  place  where  the  death  occurs. — -(35  Stat.,  1152.) 

Sec.  337.  [Construction  of  certain  words.]  Words  used  in  this  title 
in  the  present  tense  include  the  future  as  well  as  the  present;  words  used  in  the 
masculine  gender  include  the  feminine  and  neuter;  the  singular  number  includes 
the  plural,  and  the  plural  the  singular;  the  word  "person"  and  the  word  ''who- 
ever" include  a  corporation  as  well  as  a  natural  person;  writing  includes  print- 
ing and  typewriting,  and  signature  or  subscription  includes  a  mark  when 
the  person  making  the  same  intended  it  as  such.  The  words  "this  title," 
wherever  they  occur  herein,  shall  be  construed  to  mean  this  Act. — (35  Stat., 
1152-1153.) 

Sec.  338.  [Hard  labor.]  The  omission  of  the  words  "hard  labor"  from 
the  provisions  prescribing  the  punishment  in  the  various  sections  of  this  Act, 
sliall  not  be  construed  as  depriving  the  court  of  the  power  to  impose  hard  labor 
as  a  part  of  the  punishment,  in  any  case  where  such  power  now  exists. — (35 
Stat.,  1153.) 

[1909,  Aug.  5.  Premium  on  bonds.]  Until  otlierwise  provided  by  law  no 
bond  shall  be  accepted  from  any  surety  or  bonding  company  for  any  officer  or 
employee  of  the  United  States  wliich  shall  cost  more  than  thirty-five  per  centum 
in  excess  of  the  rate  of  premium  charged  for  a  like  bond  during  the  calendar 
year  nineteen  hundred  and  eiglit :  Provided,  That  hereafter  the  United  States 
shall  not  pay  any  part  of  the  premium  or  other  cost  of  furnisiiing  a  bond  re- 
quired by  law  or  otherwise  of  any  officer  or  employee  of  the  United  States. — 
(36  Stat.,  125-126,  chap.  7.) 


See  sections  1383-1385,  Revised  Statutes,  and 
notes  thereto;  see  also  act  of  February  24, 
1919,  section  1320  (40  Stat.,  1148),  as  to 


acceptance  of  Liberty  bonds,  etc.,  in  lieu 
of  surety  bonds. 


[1910,  Apr.  12.  Naval  Academy  Band.]  That  the  Naval  Academy  Band 
shall  consist  of  one  leader,  who  sliall  have  the  pay  and  allowance  of  a  second 
lieutenant  in  the  IViarine  Corps;  one  second  leader,  with  pay  at  the  rate  of  fifty 
dollars  per  month;  twenty-nine  musicians,  first  class,  and  eleven  musicians, 
second  class;  and  shall  be  paid  from  "Pay  of  the  navy." 

Sec.  2.  That  the  members  of  the  Naval  Academy  Band  as  now  organized 
shall  be  enlisted  in  the  navy  and  credited  with  all  prior  service  of  whatever 
nature  as  members  of  said  band,  as  showm  by  the  records  of  the  Naval  Academy 
and  the  pay  rolls  of  the  ships  and  academy;  and  the  said  leader  and  the  enlisted 
musicians  of  the  band  shall  be  entitled  to  the  same  benefits  in  respect  to  pay, 
emoluments,  and  retirement  arising  from  longevity,  reenlistment,  and  length  of 
service  as  are,  or  may  hereafter  become,  applicable  to  other  enlisted  men  of  the 
navy:  Provided,  That  no  back  pay  shall  be  allowed  to  the  leader  or  to  any  mem- 

54641°— 22 so  1355 


June  9,  1910. 


Pt.3.  STATUTES  AT  LARGE. 


ber  of  the  said  band  by  reason  of  the  passage  of  this  Act. —  (36  Stat.,  297,  chap. 
1.57.) 


13,  1908  (35  Stat.,  153),  and  June  3,  1916, 
section  35  (39  Stat.,  188),  as  to  competi- 
tion with  ci\  ilian  musicians. 


See  act  of  July  11,  1919  (41  Stat.,  152),  for 
amendment  to  section  one  of  this  act;  see 
also  notes  to  sections  1511  and  1569,  Re- 
vised Statutes;  and  see  also  acts  of  May 

[1910,  June  9.  Regulation  of  motor  boats  on  navigable  waters.]  That  the 
words  ''  motor  boat "  where  used  in  this  Act  sliall  include  every  vessel  propelled 
by  machinery  and  not  more  than  sixty-five  feet  in  length  except  tug  boats  and 
tow  boats  propelled  by  steam.  The  length  shall  be  measured  from  end  to  end 
over  the  deck,  excluding  sheer:  Provided,  That  the  engine,  boiler,  or  other 
operating  machinery  shall  be  subject  to  inspection  by  the  local  inspectors  of 
steam  vessels,  and  to  their  approval  of  the  design  thereof,  on  all  said  motor 
boats,  wdiich  are  more  than  forty  feet  in  length,  and  which  are  propelled  by 
machinery  driven  by  steam. —  (36  Stat.,  462,  chap.  268.) 

Sec.  2.  That  motor  boats  subject  to  the  provisions  of  this  Act  shall 
be  divided  into  classes  as  follows: 

Class  one.  Less  than  twenty-six  feet  in  length. 

Class  two.  Twenty-six  feet  or  over  and  less  than  fort}'  feet  in  length. 

Class  three.  Forty  feet  or  over  and  not  more  than  sixty-five  feet  in  length. — 
(36  Stat.,  462,  chap.  268.) 

Sec.  3.  That  every  motor  boat  in  all  weathers  from  sunset  to  sunrise  shall 
carry  the  following  hghts,  and  during  such  time  no  other  lights  which  may  be 
mistaken  for  those  prescribed  shall  be  exhibited. 

(a)  Every  motor  boat  of  class  one  shall  carry  the  following  lights : 
First.  A  white  light  aft  to  show  all  around  the  horizon. 

Second.  A  combined  lantern  in  the  fore  part  of  the  vessel  and  lower  than 
the  white  light  aft  showing  green  to  starboard  and  red  to  port,  so  fixed  as  to 
throw  the  light  from  right  ahead  to  tw^o  points  abaft  the  beam  on  their  respec- 
tive sides. 

(b)  Every  motor  boat  of  classes  two  and  three  shall  carry  the  following 
lights : 

First.  A  bright  white  light  in  the  fore  part  of  the  vessel  as  near  the  stem 
as  practicable,  so  constructed  as  to  show  an  unbroken  light  over  an  arc  of  the 
horizon  of  twent}^  points  of  the  compass,  so  fixed  as  to  throw  the  light  ten  points 
on  each  side  of  the  vessel,  namely,  from  right  ahead  to  two  points  abaft  the  beam 
on  either  side.  The  glass  or  lens  shall  be  of  not  less  than  the  following  dimen- 
sions : 

Class  two.  Nineteen  square  inches. 

Class  three.  Thirty-one  square  inches. 

Second.  A  white  light  aft  to  show  all  around  the  horizon. 

Third.  On  the  starboard  side  a  green  light  so  constructed  as  to  show  an 
unbroken  light  over  an  arc  of  the  horizon  of  ten  points  of  the  compass,  so  fixed 
as  to  throw  the  light  from  right  ahead  to  two  points  abaft  the  beam  on  the 
starboard  side.  On  the  port  side  a  red  light  so  constructed  as  to  show  an  un- 
broken light  over  an  arc  of  the  horizon  of  ten  points  of  the  compass,  so  fixed  as 
to  throw  the  light  from  right  ahead  to  two  points  abaft  the  beam  on  the  port 


1356 


Pi.  3.  STATUTES  AT  LARGE.  June  9,  1910. 

side.  The  glasses  or  lenses  in  the  said  side  lights  shall  be  of  not  less  than  the 
following  dimensions  on  motor  boats  of — - 

Class  two.  Sixteen  square  inches. 

Class  three.  Twenty-five  square  inches. 

On  and  after  July  first,  nineteen  hundred  and  eleven,  all  glasses  or  lenses 
prescribed  by  paragraph  (b)  of  section  three  shall  be  fresnel  or  fluted.  The 
said  lights  shall  be  fitted  with  inboard  screens  of  sufficient  height  and  so  set  as 
to  prevent  these  lights  from  being  seen  across  the  bow  and  shall  be  of  not  less 
than  the  following  dimensions  on  motor  boats  of — 

Class  two.  Eighteen  inches  long. 

Class  three.  Twenty-four  inches  long:  Provided,  That  motor  boats  as  de- 
fined in  this  Act,  when  propelled  by  sail  and  machinery  or  under  sail  alone, 
shall  carry  the  colored  lights  suitably  screened  but  not  the  white  lights  pre- 
scribed by  this  section.— (36  Stat.,  462-463,  chap.  26S.) 

Sec.  4.  (a)  Every  motor  boat  under  the  provisions  of  this  Act  shall  ])e 
provided  with  a  wliistle  or  other  sound-producing  mechanical  appliance  capable 
of  producing  a  blast  of  two  seconds  or  more  in  duration,  and  in  the  case  of  such 
boats  so  provided  a  blast  of  at  least  two  seconds  shall  be  deemed  a  prolonged 
blast  within  the  meaning  of  the  law\ 

(b)  Every  motor  boat  of  class  two  or  three  shall  carry  an  efficient  fog  horn. 

(c)  Every  motor  boat  of  class  two  or  tliree  shall  be  provided  with  an 
efficient  bell,  which  shall  be  not  less  than  eight  inches  across  the  motith  on 
board  of  vessels  of  class  three. —  (36  Stat.,  463,  chap.  268.) 

Sec.  5.  That  every  motor  boat  subject  to  any  of  the  provisions  of  this  Act, 
and  also  all  vessels  propelled  by  machinery  other  than  by  steam  more  than 
sixty-five  feet  in  length,  shall  carry  either  life-preservers  of  life  belts,  or  buoyant 
cushions,  or  ring  buoys  or  other  device,  to  be  prescribed  by  the  Secretary  of 
Commerce  *  *  *  sufficient  to  sustain  afloat  every  person  on  board  and 
so  placed  as  to  be  readily  accessible.     *     *     *. — (36  Stat.,  463,  chap.  268.) 

Sec.  6.  That  every  motor  boat  and  also  every  vessel  propelled  by  machinery 
other  than  by  steam,  more  than  sixty-five  feet  in  length,  shall  carry  ready  for 
immediate  use  the  means  of  promptly  and  effectuall}"  extinguishing  burnhig 
gasoline.— (36  Stat.,  463,  chap.  268.) 

Sec.  7.  That  a  fine  not  exceeding  one  hundred  dollars  may  be  imposed  for 
any  violation  of  this  Act.  The  motor  boat  shall  be  liable  for  the  said  penalty 
and  may  be  seized  and  proceeded  against,  by  way  of  libel,  in  the  district  court 
of  the  United  States  for  any  district  within  which  such  vessel  may  be  foinid.^ 
(36  Stat.,  463,  chap.  268.) 

Sec.  8.  That  the  Secretary  of  Commerce  *  *  *  shall  make  such 
regulations  as  may  be  necessary  to  secure  the  proper  execution  of  this  Act  by 
collectors  of  customs  and  other  officers  of  the  Government.  And  the  Secretary 
of  the  Department  of  Commerce  *  *  *  may,  upon  application  therefor, 
remit  or  mitigate  any  fine,  penalty,  or  forfeiture  relating  to  motor  boats  except 
for  failure  to  observe  the  provisions  of  section  six  of  this  Act. — (36  Stat.,  463, 
chap.  268.) 

Sec.  9.  That  all  laws  and  parts  of  laws  only  in  so  far  as  they  are  in  conflict 
herewith  are  hereby  repealed:  Provided,  That  nothing  in   this  Act  shall  be 

1357 


June  24,  1910.  Pt.  S.  STATUTES  AT  LARGE. 

deemed  to  alter  or  amend  Acts  of  Congress  embodying  or  revising  international 
rules  for  preventing  collisions  at  sea. — (36  Stat.,  4G3,  ehap.  268.) 

See  sections  42:53  and  4412,  Revised  Statutes,  8, 1895  (28 Stat.,  tJ45);  June 7, 1897  (30 Stat., 


and  notes  thereto;  see  also  acts  of  Fel)ruary 


9(5);  and  Autjust  19,  1890  (2G  Stat.,  320). 


[1910,  June  17,  sec.  4. — Supplies  for  executive  departments,  etc.]  That 
hereafter  all  supplies  of  fuel,  ice,  stationery,  and  other  miscellaneous  supplies 
for  the  executive  departments  and  other  government  establishments  in  Wash- 
ington, when  the  public  exigencies  do  not  require  the  immediate  delivery  of  the 
article,  shall  be  advertised  and  contracted  for  by  the  Secretary  of  the  Treasury, 
instead  of  by  the  several  departments  and  establishments,  upon  such  days  as  he 
may  designate.  There  shall  be  a  general  supply  committee  in  lieu  of  the  board 
provided  for  in  section  thirty-seven  hundred  and  nine  of  the  Revised  Statutes 
as  amended,  composed  of  ofTicers,  one  from  each  such  department,  designated 
by  the  head  thereof,  the  duties  of  wliich  committee  shall  be  to  make,  under  the 
direction  of  the  said  Secretary,  an  annual  schedule  of  required  miscellaneous 
supplies,  to  standardize  such  supplies,  eliminating  all  unnecessar}^  grades  and 
varieties,  and  to  aid  said  Secretary  m  solicithig  bids  based  upon  formulas  and 
specifications  drawn  up  by  such  experts  m  the  service  of  the  Government  as 
the  committee  may  see  fit  to  call  upon,  who  shall  render  whatever  assistance 
they  may  require.  The  committee  shall  aid  said  Secretary  in  securing  the 
proper  fulfillment  of  the  contracts  for  such  supplies,  for  which  purpose  the  said 
Secretary  shall  prescribe,  and  all  departments  comply  with,  rules  providing 
for  such  examination  and  tests  of  the  articles  received  as  may  be  necessary  for 
such  purpose ;  in  making  additions  to  the  said  schedule ;  in  opening  and  consid- 
ering the  bids,  and  shall  perform  such  other  similar  duties  as  he  .may  assign  to 
them:  Provided,  That  the  articles  intended  to  be  purchased  in  this  manner 
are  those  in  common  use  by  or  suitable  to  the  ordinary  needs  of  two  or  more 
such  departments  or  establishments;  but  the  said  Secretary  shall  have  dis- 
cretion to  amend  the  annual  common  supply  schedule  from  time  to  time  as  to 
any  articles  that,  m  his  judgment,  can  as  well  be  thus  purchased.  In  all  cases 
only  one  bond  for  the  proper  performance  of  each  contract  shall  be  required, 
notwithstanding  that  supplies  for  more  than  one  department  or  government 
establishment  are  included  in  such  contract.  Every  purchase  or  drawing  of 
such  supplies  from  the  contractor  shall  be  immediately  reported  to  said  com- 
mittee. No  disbursing  officer  shall  be  a  member  of  such  committee.  No 
department  or  establishment  shall  purchase  or  draw  supplies  from  the  common 
schedule  through  more  than  one  office  or  bureau,  except  m  case  of  detached 
bureaus  or  offices  having  field  or  outlying  service,  which  may  purchase  directly 
from  the  contractor  with  the  permission  of  the  head  of  their  department: 
And  provided  further,  That  telephone  service,  electric  light,  and  power  service 
purchased  or  contracted  for  from  companies  or  individuals  shall  be  so  obtained 
by  him.— (36  Stat.,  531,  chap.  297.) 

See  section  3709,  Revised  Statutes,  and  act  of  March  2,  1907  (34  Stat.,  1193). 

[1910,  June  24.  Collision  claims,  adjustment  of;  report  to  Congress.]  The 
Secretary  of  the  Navy  is  hereby  authorized  to  consider,  ascertain,  adjust  and 
determine  the  amounts  due  on  all  claims  for  damages,  where  the  amount  of  the 
claim  does  not  exceed  the  sum  of  five  hundred  dollars,  hereafter  occasioned  by 

1358  .    . 


Pt.  3.  STATUTES  AT  LARGE. 


June  25,  1910. 


claims  which  the  Government  is  not  in  law 
bound  to  pay,  however  much  they  may  be 
urged  to  do  so  by  claimants  who  feel  aggrieved 
by  the  tortious  conduct  of  public  officers. 
An  executive  department  is  not  the  place  to 
apply  for  redress  of  grievances  not  founded 
on  legal  rights.  (Pitman  v.  U.  S.,  20  Ct.  Cls., 
256.)' 

The  head  of  an  executive  department  is  not 
authorized  to  pay  the  actual  expenses  of  repair- 
ing a  vessel  injured  in  a  collision  \nth  a  Govern- 
ment vessel,  the  claim  arising  from  the  collision 
being  one  for  unliquidated  damages  caused  by 
the  tort  of  the  Government's  officers.  (1  Comp. 
Dec,  261.) 

It  seems  to  be  the  approved  practice  to  com- 
mit such  claimants  to  the  tender  mercies  of 
Congress  for  settlement.     (1  Comp.  Dec,  285.) 

See  note  to  section  236,  Revised  Statutes. 


collision,  for  which  collisions  vessels  of  the  navy  shall  be  found  to  be  responsible, 
and  report  the  amounts  so  ascertained  and  determined  to  be  due  the  claimants 
to  Congress  at  each  session  thereof  through  the  Treasury  Department  for 
payment  as  legal  claims  out  of  appropriations  that  may  be  made  by  Congress 
therefor.— (36  Stat.,  607,  chap.  378.) 

See  act  of  July  1,  1918  (40  Stat.,  705),  author- 
izing Secretary  of  the  Navy  to  adjust  and 
pay  any  claim  not  exceeding  SI, 000,  for 
damages  to  inhabitants  to  certain  European 
countries;  see  also  act  of  April  18,  1918 
(40  Stat.,  532). 

See  act  of  July  11,  1909  (41  Stat.,  132),  author- 
izing the  Secretary  of  the  Navy  to  adjust 
and  pay  claims  for  damages  other  than 
those  occasioned  by  vessels  of  the  Navy, 
where  amount  does  not  exceed  ?500. 

See  act  of  June  4,  1920  (41  Stat.,  814),  author- 
izing Secretary  of  the  Navy  to  adjust  and 
pay  claims  not  exceeding  S500  for  damages 
caused  by  operations  of  naval  aircraft. 
(A  similar  pro^'ision  was  contained  in  act 
of  July  11,  1919,  41  Stat.,  133). 
Claims  for  damages. — It  is  not  within  the 

official  duties  of  the  head  of  any  department  to 

make    estimates    for    appropriations    to    pay 

[1910,  June  24.  Loan  of  equipment  to  military  schools.]  That  the  act  en- 
titled "An  act  to  authorize  the  Secretary  of  the  Navy  to  loan  naval  ec^uipment  to 
certain  military  schools,"  approved  March  third,  nineteen  hundred  and  one,  be 
amended  by  striking  out  the  words  "one  hundred  and  forty  cadets"  and  insert- 
ing in  lieu  thereof  the  words  "seventy-five  cadets  over  fifteen  years  of  age." — 
(36  Stat.,  613,  chap.  378.) 

See  act  of  March  3,  1901  (31  Stat.,  1440),  as  amended  by  act  of  June  29,  1906  (34  Stat.,  620). 

[1910,  June  24.  Detail  of  line  under  staflf  officers.]     That  line  officers  may 
be  detailed  for  duty  under  staff  officers  in  the  manufacturing  and  repair  depart- 
ments of  the  navy-yards  and  naval  stations,  and  all  laws  or  parts  of  laws  in  con- 
flict herewith  are  hereby  repealed. —  (36  Stat.,  614,  chap.  378.) 
See  notes  to  sections  1404  and  1488,  Revised  Statutes. 

[1910,  June  24.  Profit  on  sales  from  ships'  stores.]     That  hereafter  a  profit 

not  to  exceed  fifteen  per  centum  may  be  charged  on  sales  from  ships'  stores,  such 

profit  to  be  expended  in  the  discretion  of  the  Secretary  of  the  Navy,  under  such 

regulations  as  he  may  prescribe,  for  the  amusement,  comfort,  and  contentment 

of  the  enlisted  force,  and  to  be  accounted  for  to  the  Bureau  of  Supplies  and 

Accounts,  Navy  Department. —  (36  Stat.,  619,  chap.  378.) 

See  act  of  March  3,  1909,  (35  Stat.,  768),  and    |    is  mthout  jurisdiction  to  render  a  decision  as  to 
section  3689,  Revised  Statutes. 
Jurisdiction  of  accounting   officers. — In 
\'iew  of  the  wording  of  this  enactment,  pro\'id- 
ing  for  an  accounting  to  the  Bureau  of  Supplies 
and  Accounts,  the  Comptroller  of  the  Treasury 


the  legality  of  proposed  expenditures  from  the 
fund  created  bv  ships'  stores  profits.  (Comp. 
Dec,  Apr.  28,  1915,  file  26254-1759:2;  see  note 
tosec.  236,  R.  S.) 


[1910,  June  25.  Detail  of  employees  from  Government  Printing  Office.] 
Hereafter  no  employee  of  the  Government  Printing  Office  shall  be  detailed  to 
duties  not  pertaining  to  the  work  of  public  printing  and  binding  in  any  execu- 


1359 


Mar.  3,  1911.  Ft.  S.  STATUTES  AT  LARGE.  Judicial  Code. 

tive  department  or  other  government  establishment  unless  expressly  authorized 
by  law.— (36  Stat.,  770,  chap.  384.) 

See  act  of  January  12,  1895,  section  18  (28  Stat.,  603). 

[1910,  June  25,  sec.  6.  Annual  report,  sales  of  old  material,  etc.]  Here- 
after the  statement  of  the  proceeds  of  all  sales  of  old  material,  condemned  stores, 
supplies,  or  other  public  property  of  any  kmd  shall  be  submitted  to  Congress 
at  the  beginning  of  each  regular  session  thereof  as  a  separate  communication 
and  shall  not  hereafter  be  included  in  the  annual  Book  of  Estimates. —  (36  Stat., 
773,  chap.  384.) 

See  sections  429,  430,  1541,  and  3672,  Revised  Statutes,  and  notes  thereto. 

[1910,  June  25.  Patents,  protection  of  owners;  suit  in  Court  of  Claims.] 
That  whenever  an  invention  described  in  and  covered  by  a  patent  of  the  United 
States  shall  hereafter  be  used  or  manufactured  by  or  for  the  United  States 
without  license  of  the  owner  thereof  or  lawful  right  to  use  or  manufacture  the 
same,  such  owner's  remedy  shall  be  by  suit  against  the  United  States  in  the 
Court  of  Claims  for  the  recovery  of  his  reasonable  and  entire  compensation  for 
such  use  and  manufacture :  Provided,  Jiowever,  That  said  Court  of  Claims  shall 
not  entertain  a  suit  or  award  compensation  under  the  provisions  of  this  Act  where 
the  claim  for  compensation  is  based  on  the  use  or  manufacture  by  or  for  the 
United  States  of  any  article  heretofore  owned,  leased,  used  by,  or  in  the  pos- 
session of  the  United  States:  Provided  further,  That  in  any  such  suit  the  United 
States  may  avail  itself  of  any  and  all  defenses,  general  or  special,  that  might 
be  pleaded  by  a  defendant  in  an  action  for  infringement,  as  set  forth  in  Title 
Sixty  of  the  Revised  Statutes,  or  otherwise :  And  provided  further,  That  the 
benefits  of  this  Act  shall  not  inure  to  any  patentee  who,  when  he  makes  such 
claim,  is  in  the  employment  or  service  of  the  Government  of  the  United  States, 
or  the  assignee  of  any  such  patentee;  nor  shall  this  act  apply  to  any  device  dis- 
covered or  invented  by  such  employee  during  the  time  of  his  employment  or 
service.— (36  Stat.,  851-852,  chap.  423;  40  Stat.,  705,  chap.  114.) 

utes;  see  also  act  of  October  6,  1917,  section 


This  act  was  expressly  amended  and  reenacted 
to  read  as  above  bv  act  of  Julv  1,  1918 
(40  Stat.,  705). 

See  notes  to  Constitution,  Article  I,  section  8, 
clause  8;  and  section  4894,  Revised  Stat- 


10  (i)  (40  Stat.,  422). 
As  to  jurisdiction  of  Court  of  Claims,  see  act 
of  March  3,  1911,  sections  145-150  (36  Stat., 
1136-1138). 


[1911,  Mar.  1.  Discrimination  against  the  uniform;  penalty.]  That  here- 
after no  proprietor,  manager,  or  employee  of  a  theater  or  other  public  place  of 
entertainment  or  amusement  in  the  District  of  Columbia,  or  in  any  Territory, 
the  District  of  Alaska  or  Insular  possession  of  the  United  States,  shall  make,  or 
cause  to  be  made,  any  discrimination  against  any  person  lawfully  wearing  the 
uniform  of  the  Army,  Navy,  Revenue-Cutter  Service  or  Marine  Corps  of  the 
United  States  because  of  that  uniform,  and  any  person  making,  or  causing  to 
be  made,  such  discrimination  shall  be  guilty  of  a  misdemeanor,  punishable  by  a 
fine  not  exceeding  five  hundred  dollars. — (36  Stat.,  963-964,  chap.  187.) 

See  act  of  June  3,  1916,  section  125  (39  Stat.,  216),  as  to  unauthorized  wearing  of  the  uniform. 

[1911,  Mar.  3.  Judicial  Code.]  That  the  laws  relating  to  the  judiciary  be, 
and  they  hereby  are,  codified,  revised,  and  amended,  with  title,  chapters,  head- 


1360 


Judicial  Code. 


Ft.  3.  STATUTES  AT  LARGE. 


Mar.  3,  1011. 


notes,  and  sections,  entitled,  numbered,  and  to  read  as  follows: — (36  Stat.,  1087, 
chap.  231.) 

See  notes  to  section  1624,  Kevised  Statutes,  as 
to  jurisdiction  of  civil  courts  over  court- 
martial  proceedings. 

See  Criminal  Code,  act  of  March  4,  1909  (35 
Stat.,  1088-1153),  for  offenses  by  persons  in 
naval  ser^'ice  punishable  by  ci\dl  courts. 

See  sections  751,  etseq.,  Re\'ised  Statutes,  as  to 
jurisdiction  of  ci\'il  courts  by  habeas  corpus 
proceedings  over  persons  held  by  naval 
authority. 

See,  generally,  sections  751-1023,  Re^■ised  Stat- 
utes, under  the  title,  "The  Judiciary." 

That  military  and  naval  courts  form  no  part  of 
the  judicial  system  of  the  United  States, 
but  are  instrumentalities  of  the  executive 
branch  of  the  Government,  sea  cases  noted 
imder  the  Constitution.  Article  I,  section 
8,  clause  9. 


See  note  to  Constitution,  Article  I,  section  8, 
clause  9,  for  brief  explanation  of  the  judi- 
cial system  of  the  United  States;  see  also 
"Introduction,"  ante,  under  "IV.  Deci- 
sions of  the  courts,  opinions  of  law  officers  of 
the  Government,  regulations,  etc." 

See  note  to  Constitution,  Article  I,  section  8, 
clause  11,  as  to  jurisdiction  of  ci\-il  coiu-ts 
over  the  military  forces  in  time  of  war. 

See  notes  to  Constitution,  Article  I,  section  8, 
clauses  13-14,  as  to  jurisdiction  of  ci^il 
authorities  over  the  military  forces  in  time 
of  peace. 

See  note  to  Constitution,  Article  II,  section  1, 
clause  1,  and  notes  to  sections  236,  416,  417, 
and  868,  RoAised  Statutes,  as  to  jurisdic- 
tion of  ci\dl  courts  over  the  President, 
heads  of  departments,  and  other  officers  of 
the  executive  departments. 


Sec.  24.  [district  courts  ;  claesis  against  united  states.]  The  district 
courts  shall  have  original  jurisdiction  as  follows:  *  *  *. — (36  Stat.,  1091; 
sees.  563,  629,  R.  S.) 

Twentieth.  Concurrent  with  the  Court  of  Claims,  of  all  claims  not  exceeding 
ten  thousand  dollars  founded  upon  the  Constitution  of  the  United  States  or  any 
law  of  Congress,  or  upon  any  regulation  of  an  executive  department,  or  upon 
any  contract,  express  or  implied,  with  the  Government  of  the  United  States,  or 
for  damages,  liquidated  or  unliquidated,  in  cases  not  sounding  in  tort,  in  respect 
to  which  claims  the  party  would  be  entitled  to  redress  against  the  United  States, 
either  in  a  coiu"t  of  law,  equity,  or  admiralty,  if  the  United  States  were  suable, 
and  of  all  set-offs,  cotmterclaims,  claims  for  damages,  whether  liquidated  or 
unliquidated,  or  other  demands  whatsoever  on  the  part  of  the  Government  of 
the  United  States  against  any  claimant  against  the  Government  in  said  court: 
Provided,  however,  That  nothing  in  this  paragraph  shall  be  construed  as  giving 
to  either  the  district  courts  or  the  Court  of  Claims  jurisdiction  to  hear  and 
determine  claims  growing  out  of  the  late  Civil  War,  and  commonly  known  as 
''war  claims,"  or  to  hear  and  determine  other  claims  which  had  been  rejected 
or  reported  on  adversely  prior  to  the  third  day  of  March,  eighteen  hundred  and 
eighty-seven,  by  any  court,  department,  or  commission  authorized  to  hear  and 
determine  the  same,  or  to  hear  and  determine  claims  for  pensions ;  or  as  giving 
to  the  district  courts  jmisdiction  of  cases  brought  to  recover  fees,  salary,  or 
compensation  for  official  services  of  officers  of  the  United  States  or  brought  for 
such  purpose  by  persons  claiming  as  such  officers  or  as  assignees  or  legal  repre- 
sentatives thereof;  but  no  suit  pending  on  the  twenty-seventh  day  of  June, 
eighteen  hundred  and  ninety-eight,  shall  abate  or  be  affected  by  this  provision: 
And  provided  further,  That  no  suit  against  the  Government  of  the  United  States 
shall  be  allowed  under  this  paragraph  unless  the  same  shall  have  been  brought 
within  six  years  after  the  right  accrued  for  which  the  claim  is  made :  Provided, 
That  the  claims  of  married  women,  first  accrued  during  marriage,  of  persons 
imder  the  age  of  twenty-one  years,  first  accrued  during  minority,  and  of  idiots, 
lunatics,  insane  persons,  and  persons  beyond  the  seas  at  the  time  the  claim 
accrued,  entitled  to  the  claim,  shall  not  be  barred  if  the  suit  be  brought  within 


1361 


Mar.  3,  1911, 


Ft.  3.  STATUTES  AT  LARGE. 


Judicial  Code. 


three  years  after  the  disabihty  has  ceased;  but  no  other  disabihty  than  those 
enumerated  shall  prevent  any  claim  from  being  barred,  nor  shall  any  of  the  said 
disabilities  operate  cumulatively.  All  suits  brought  and  tried  under  the  pro- 
visions of  this  paragraph  shall  be  tried  by  the  court  without  a  jury. — (36  Stat., 
1093;  24  Stat.,  505;  30  Stat.,  495;  31  Stat.,  33.) 

Sec.  145.  [court  of  cl.vims;  jurisdiction;  relief  of  disbursing  offi- 
cers, ETC.]  The  Court  of  Claims  shall  have  jurisdiction  to  hear  and  determine 
the  following  matters: 

First.  All  claims  (except  for  pensions)  founded  upon  the  Constitution  of 
the  United  States  or  any  law  of  Congress,  upon  any  regulation  of  an  Executive 
Department,  upon  any  contract,  express  or  implied,  with  the  Government  of  the 
United  States,  or  for  damages,  liquidated  or  unliquidated,  in  cases  not  sounding 
in  tort,  in  respect  of  which  claims  the  party  would  be  entitled  to  redress  against 
the  United  States  either  in  a  court  of  law,  equity,  or  admiralty  if  the  United  States 
were  suable :  Provided,  however,  That  nothing  in  this  section  shall  be  construed 
as  giving  to  the  said  com't  jurisdiction  to  hear  and  determine  claims  growing 
out  of  the  late  civil  war,  and  commonly  known  as  ''war  claims,"  or  to  hear  and 
determine  other  claims  which,  prior  to  March  third,  eighteen  hundred  and 
eighty-seven,  had  been  rejected  or  reported  on  adversely  by  any  court,  depart- 
ment, or  commission  authorized  to  hear  and  determine  the  same. 

Second.  All  set-offs,  counterclaims,  claims  for  damages,  whether  liquidated  or 
unliquidated,  or  other  demands  whatsoever  on  the  part  of  the  Government  of 
the  United  States  against  any  claimant  against  the  Government  in  said  court: 
Provided,  That  no  suit  against  the  Government  of  the  United  States,  brought 
by  any  officer  of  the  United  States  to  recover  fees  for  services  alleged  to  have 
been  performed  for  the  United  States,  shall  be  allowed  imder  this  chapter  until 
an  account  for  said  fees  shall  have  been  rendered  and  finally  acted  upon  as 
required  by  law,  unless  the  proper  accounting  officer  of  the  Treasury  fails  to 
act  finally  thereon  within  six  months  after  the  account  is  received  in  said  office. 

Third.  The  claim  of  any  paymaster,  quartermaster,  commissary  of  sub- 
sistence, or  other  disbursing  officer  of  the  United  States,  or  of  his  administrators 
or  executors,  for  relief  from  responsibility  on  account  of  loss  by  capture  or  other- 
wise, while  in  the  line  of  his  duty,  of  Government  funds,  vouchers,  records,  or 
papers  in  his  charge,  and  for  which  such  officer  was  and  is  held  responsible. — 
(36  Stat.,  1136-1137;  24  Stat.,  505.) 


See  note  to  section  236,  Revised  Statutes,  as  to 
jurisdiction  of  Court  of  Claims  and  the 
accounting  officers  of  the  Treasury. 

See  act  of  .June  25,  1910  (36  Stat.,  851-852);  as 
amended  and  reenacted  by  act  of  .Tuly  1, 
1918  (40  Stat.,  705),  as  to  jurisdiction  in 
patent  cases. 

See  act  of  .Tuly  11,  1919  (41  Stat.,  132),  as  to 
disl)ursing  officers  being  relieved  of  respon- 
sibility, without  proceedings  in  the  Court 
of  Claims,  where  loss  occurred  in  line  of 
duty,  etc. 

See  section  147,  below. 
Jurisdiction  limited  to  money  demands. — 

Where  it  was  provided  by  law  that  retired 

officers  who  had  served  during  the  Ci\'il  War 

should  be  entitled  to  the  rank  and  retired  pay 


of  the  next  higher  gi'ade,  and  the  Navy  De- 
partment decided  that  a  particular  officer  was 
not  entitled  to  the  benefits  of  the  act,  a  decision 
of  the  Court  of  Claims  (Moser  v.  U.  S.,  42  Ct. 
Cls.,  86),  allowing  the  officer  the  retired  pay  of 
the  next  higher  grade,  and  purporting  to  decide 
that  he  was  also  entitled  to  the  rank  of  such 
higher  grade,  did  not  estop  the  Secretary  of 
the  Navy  from  contesting  the  officer's  claim  to 
the  rank  of  such  higher  grade.  The  judgment 
of  the  court  was  one  for  money  onlv.  (Moser 
V.  Meyer,  38  App.  D,  C,  13;  see  also  28  Op. 
Atty.  Gen.,  352.) 

Same  act,  41  Stat.,  153,  was  limited  to  losses 
incurred  during  the  "present  emergency." 
See  also  section  285,  Revised  Statutes,  and 
notes  to  sections  176  and  236,  Revised  Statutes. 


1362 


Judicial  Code.  Pt.  3.  STATUTES  AT  LARGE.  Mar.  3,  1911. 

Sec.  146.  [Determixatiox  of  counter-claims,  etc.]  Upon  the  trial 
of  any  cause  in  which  any  set-off,  counter-claim,  claim  for  damages,  or  other 
demand  is  set  up  on  the  part  of  the  Government  against  any  person  making 
claim  against  the  Government  in  said  court,  the  court  shall  hear  and  determine 
such  claim  or  demand  both  for  and  against  the  Government  and  claimant; 
and  if  upon  the  whole  case  it  finds  that  the  claimant  is  indebted  to  the  Govern- 
ment it  shall  render  judgment  to  that  effect,  and  such  judgment  shall  be  final, 
with  the  right  of  appeal,  as  in  other  cases  provided  for  by  law.  Any  transcript 
of  such  judgment,  filed  in  the  clerk's  office  of  any  district  court,  shall  be  entered 
upon  the  records  thereof,  and  shall  thereby  become  and  be  a  judgment  of  such 
court  and  be  enforced  as  other  judgments  in  such  court  are  enforced. — (36 
Stat.,  1137;  Sec.  1061,  R.  S.) 

See  note  to  section  236,  Revised  Statutes,  under  "VI.  Set-off;" 

Sec.  147.  [Decree  on  accounts  of  disbursing  officers.]  Whenever 
the  Court  of  Claims  ascertains  the  facts  of  any  loss  by  any  paymaster,  quarter- 
master, commissary  of  subsistence,  or  other  disbursing  officer,  in  the  cases 
hereinbefore  provided,  to  have  been  without  fault  or  negligence  on  the  part  of 
such  officer,  it  shall  make  a  decree  setting  forth  the  amount  thereof,  and  upon 
such  decree  the  proper  accounting  officers  of  the  Treasury  shall  allow  to  such 
officer  the  amount  so  decreed  as  a  credit  in  the  settlement  of  his  accounts. — 
(36  Stat.,  1137;  Sec.  1062,  R.  S.) 

See  section  145,  above. 

Sec.  148.  [Claims  referred  by  departments.]  Wlien  any  claim  or 
matter  is  pending  in  any  of  the  executive  departments  which  involves  contro- 
verted questions  of  fact  or  law,  the  head  of  such  department  may  transmit  the 
same,  with  the  vouchers,  papers,  documents,  and  proofs  pertaining  thereto, 
to  the  Court  of  Claims,  and  the  same  shall  be  there  proceeded  in  under  such 
rules  as  the  court  may  adopt.  When  the  facts  and  conclusions  of  law  shall 
have  been  found,  the  court  shall  report  its  findings  to  the  department  by  which 
it  was  transmitted  for  its  guidance  and  action:  Provided,  however,  That  if  it 
shall  have  been  transmitted  with  the  consent  of  the  claimant,  or  if  it  shall 
appear  to  the  satisfaction  of  the  court  upon  the  facts  established,  that  under 
existing  laws  or  the  provisions  of  this  chapter  it  has  jurisdiction  to  render 
judgment  or  decree  thereon,  it  shall  proceed  to  do  so,  in  the  latter  case  giving 
to  either  party  such  further  opportunity  for  hearing  as  in  its  judgment  justice 
shall  require,  and  shall  report  its  findings  therein  to  the  department  by  which 
the  same  was  referred  to  said  court.  The  Secretary  of  the  Treasury  may, 
upon  the  certificate  of  any  auditor,  or  of  the  Comptroller  of  the  Treasury, 
direct  any  claim  or  matter,  of  which,  by  reason  of  the  subject  matter  or  char- 
acter, the  said  court  might  under  existing  laws,  take  jurisdiction  on 'the  volun- 
tary action  of  the  claimant,  to  be  transmitted,  with  all  the  vouchers,  papers, 
documents  and  proofs  pertaining  thereto,  to  the  said  court  for  trial  and  adju- 
dication.—(36  Stat.,  1137-1138;  Sec.  1063,  R.  S.;  22  Stat.,  485;  24  Stat.,  507.) 

"Claim  or  matter"  construed. — The  fendants,  and  in  which  there  is  a  money  de- 
language  of  sections  148  and  149  of  the  Judicial  mand.  (Proposed  reference  by  Secretary  of 
Code  contemplates  the  reference  by  a  head  of  a  Navy,  53  Ct.  Cls.,  370.) 

department  of  a  matter  in  which  there  is  a  The   word    "matter"    appearing  in  section 

claimant,  to  which  the  United  States  are  de-  148  does  not  vary  the  character  of  the  claim 

1363 


Mar.  3,  1911. 


Pt.  S.  STATUTES  AT  LARGE. 


Judicial  Code. 


which  is  required  to  be  pending  in  the  depart- 
ment or  in  anv-Avise  extend  the  power  of  the 
court,  because  in  any  event  the  c  laim  or  matter 
must  be  one  of  which  the  court  wouhl  have 
jurisdiction  upon  the  vohmtary  action  of  the 
claimant  seekin<:;  a  judirment  for  money,  ex- 
cept as  the  bar  of  the  statute  of  limitations  may 
be  affected.  (Proposed  reference  bv  Secre- 
tary of  Navy,  53  Ct.  Cls.,  370.) 

A  claim  or  matter  pending  in  a  department 
which  involves  any  controverted  questions  of 
fact  or  law,  in  order  to  be  transmitted  to  the 
court  under  the  provisions  of  section  148,  must 
be  one  for  the  "guidance  and  action"  of  said 
department,  and  not  one  that  is  to  be  merely 
advisorv.  (Proposed  reference  by  Secretary 
of  Navy,  53rt.  Cls.,  370.) 

Under  section  148,  the  Court  of  Claims  has 
not  jurisdiction,  upon  reference  of  the  Secre- 
tary of  the  Navy,  to  report  its  conclusions  of 
law  upon  the  questions,  First,  "Was  the  Ap- 
pointment of  Albert  A.  Ilooper  as  a  chief  ma- 
chinist in  the  Navy  on  April  30,  1917,  a  valid 
and  lawful  appointment,  and  is  his  status 
under  such  appointment  that  of  a  chief  ma- 
chinist in  the  Navy?"  and,  second,  "From 
what  date  is  Albert  A.  Hooper  entitled  to  take 
rank  as  chief  machinist  in  the  Navy  under  his 


appointment  of  April  30,  1917,  or  if  said  ap- 
pointment is  held  contrary  to  law  and  ineffec- 
tual to  confer  upon  the  aforesaid  Hooper  the 
office  of  chief  machinist  in  the  Navy,  upon 
what  date  is  he  entitled  to  take  rank  upon  the 
issuance  of  a  valid  and  effectual  appointment?  ' ' 
(Proposed  reference  by  Secretary  of  Navy,  53 
Ct.  Cls.,  370.  See  also  note  to  sec.  1562,  R.  S.) 
The  opinions  and  decisions  of  the  court  must 
be  left  to  speak  for  themselves;  if  the  constuc- 
tion  of  a  statute  is  different  in  the  executive 
and  judicial  branches,  the  fact  but  accentuates 
the  necessity  for  each  of  them  observing  the 
limitations  of  its  powers.  Accordingly,  held, 
that  where  a  claim  has  been  finally  disposed  of 
by  the  Court  of  Claims  upon  suit  by  the  claim- 
ant, the  same  can  not  be  reopened  upon  appli- 
cation of  the  claimant,  nor  indirectly  pre- 
sented again  for  consideration  upon  the  appli- 
cation of  the  head  of  a  department  under  sec- 
tion 148,  Judicial  Code.  It  would  be  alike 
unbecoming  the  court  and  the  head  of  the  de- 
partment for  the  one  to  accept  or  the  other  to 
extend  an  invitation  for  a  debate  relative  to 
such  decisions.  (Proposed  reference  by  Sec- 
retary of  Navy,  53  Ct.  Cls.,  370;  see  also  Hooper 
V.  U.  S.,  53  Ct.  Cls.,  90;  and  file  26280-95:2, 
Mar.  22,  1918.) 


Sec.  149.  [Procedure  in  cases  referred  by  departments.]  All 
cases  transmitted  by  the  head  of  any  department,  or  upon  the  certificate  of 
any  auditor,  or  of  the  Comptroller  of  the  Treasury,  according  to  the  provisions 
of  the  preceding  section,  shall  be  proceeded  in  as  other  cases  pending  in  the 
Court  of  Claims,  and  shall,  in  all  respects,  be  subject  to  the  same  rules  and 
regulations.— (36  Stat.,  1138;  sec.  1064,  R.  S.) 

See  note  to  preceding  section. 

Sec.  150.  [Payment  of  judgments,  cases  referred  by  departments.] 
The  amount  of  any  final  judgment  or  decree  rendered  in  favor  of  the  claimant, 
in  any  case  transmitted  to  the  Court  of  Claims  under  the  two  preceding  sec- 
tions, shall  be  paid  out  of  any  specific  appropriation  applicable  to  the  case,  if 
any  such  there  be;  and  where  no  such  appropriation  exists,  the  judgment  or 
decree  shall  be  paid  in  the  same  manner  as  other  Judgments  of  the  said  court. — 
(36  Stat.,  1138;  sec.  1065,  R.  S.) 

Sec.  163.  [Commissioners  to  take  testimony.]  The  Court  of  Claims 
shall  have  power  to  appoint  commissioners  to  take  testimony  to  be  used  in 
the  investigation  of  claims  which  come  before  it,  to  prescribe  the  fees  which 
they  shall  receive  for  their  services,  and  to  issue  commissions  for  the  taking  of 
such  testimony,  whether  taken  at  the  instance  of  the  claimant  or  of  the  United 
States.— (36  Stat.,  1140;  sec.  1075,  R.  S.) 

See  sections  188  and  868  et  seq.,  Revised  Statutes,  and  notes  thereto. 

Sec.  164.  [Calls  on  departments  for  information  and  records.]  The 
said  court  shall  have  power  to  call  upon  any  of  the  departments  for  any  in- 
formation or  papers  it  may  deem  necessary,  and  shall  have  the  use  of  all 
recorded  and  printed  reports  made  by  the  committees  of  each  House  of  Congress, 
when  deemed  necessary  in  the  prosecution  of  its  business.  But  the  head  of 
any  department  may  refuse  and  omit  to  comply  with  any  call  for  information 


1364 


Judicial  Code.  Pt.  3.  STATUTES  AT  LARGE.  Mar.  3,  1911. 

or  papers  when,  in  his  opinion,  such  comphance  would  be  injurious  to  the 
pubhc  interest.— (36  Stat.,  1140;  sec.  1076,  R.  S.) 

See  sections  188  and  882,  Re\daed  Statutes;  and  see  note  to  section  418,  Revised  Statutes, 
under  "Records  of  department." 

Sec.  175.  [New  trial  ox  motion  of  United  States.]  The  Court  of 
Claims,  at  any  time  while  any  claim  is  pending  before  it,  or  on  appeal  from  it, 
or  within  two  years  next  after  the  final  disposition  of  such  claim,  may,  on 
motion,  on  behalf  of  the  United  States,  grant  a  new  trial  and  stay  the  payment 
of  any  judgment  therein,  upon  such  evidence,  cumulative  or  otherwise,  as  shall 
satisfy  the  court  that  any  fraud,  wrong,  or  injustice  in  the  premises  has  been 
done  to  the  United  States;  but  until  an  order  is  made  staying  the  payment  of 
a  judgment,  the  same  shall  be  payable  and  paid  as  now  provided  by  law. — 
(36  Stat.,  1141;  sec.  1088,  R.  S.) 

See  sections  242-243,  below,  as  to  appeals. 

Sec.  227.  [Supreme  Court  reports  and  digests;  distribution  of.] 
The  Attorney  General  shall  distribute  copies  of  the  Supreme  Court  reports  as 
follows:  To  *  *  *  the  Secretary  of  the  Navy,  *  *  *  each  Assistant 
Secretary  of  each  Executive  Department,  *  *  *  the  Judge  Advocate 
General,  Navy  Department,  *  *  *  ^he  Naval  Academy  at  An- 
napolis, *  *  *  and  the  heads  of  such  other  executive  offices  as  may  be 
provided  by  law,  of  equal  grade  with  any  of  said  offices,  each  one  copy;  *  *  *. 
He  shall  also  distribute  one  complete  set  of  said  reports,  and  one 'set  of  the 
digests  thereof,  to  such  executive  officers  as  are  entitled  to  receive  said  reports 
under  this  section  and  have  not  already  received  them,  *  *  *^  Such  reports 
and  digests  shall  remain  the  property  of  the  United  States,  and  shall  be  preserved 
by  the  officers  above  named  and  by  them  turned  over  to  their  successors  in 
office.— (36  Stat.,  1154-1155;  sec.  683,  R.  S.;  32  Stat.,  630.) 

See  act  of  January  12,  1895,  section  74  (28  Stat.,  620). 

Sec.  242.  [Appeals  from  Court  of  Claims.]  An  appeal  to  the  Supreme 
Court  shall  be  allowed  on  behalf  of  the  United  States,  from  all  judgments  of 
the  Court  of  Claims  adverse  to  the  United  States,  and  on  behalf  of  the  plaintiff 
in  any  case  where  the  amount  in  controversy  exceeds  three  thousand  dollars, 
or  where  his  claim  is  forfeited  to  the  United  States  by  the  judgment  of  said 
court  as  provided  in  section  one  hundred  and  seventy-two. —  (36  Stat.,  1157; 
sec.  707,  R.  S.) 

Section  172  relates  to  claims  forfeited  for  fraud. 

See  section  175,  above,  as  to  new  trials  in  Court  of  Claims. 

Sec.  243.  [Time  of  appeals.]  All  appeals  from  the  Court  of  Claims 
shall  be  taken  withui  ninety  days  after  the  judgment  is  rendered,  and  shall 
be  allowed  under  such  regulations  as  the  Supreme  Court  may  direct. — (36  Stat., 
1157;  sec.  708,  R.  S.) 

[1911,  Mar.  4.  Direct  and  indirect  charges  included  in  cost  of  work; 
annual  report  to  Congress.]  That  hereafter,  in  fixing  the  cost  of  work  under 
the  various  naval  appropriations,  the  direct  and  indirect  charges  incident 
thereto  shall  be  included  in  such  cost:  And  provided  further,  That  the  Bureau 


1365 


Mar.  4,  1911. 


Pt.  S.  STATUTES  AT  LARGE. 


of  Supplies  and  Accounts  shall  keep  the  money  accounts  of  the  Naval  Estab- 
lishment in  such  manner  as  to  show  such  charges  and  shall  report  the  same 
annually  for  the  information  of  Congress. — (36  Stat.,  1267,  chap.  239.) 


A  slisrhtlv  different  pro^'ision  was  contained  in 
the  act  of  June  24,  1910  (36  Stat.,  607). 

See  act  of  June  :50,  1014  (38  Stat.,  413-114), 
as  to  distribution  of  overhead  charges. 


See  section  429,  Re\-ised  Statutes,  and  note 
thereto,  as  to  reports  required  to  be  made 
to  Conc:ress;  and  see  note  to  section  419, 
Re^-ised  Statutes,  as  to  duties  of  the  Bureau 
of  Supplies  and  Accounts  (formerly  the 
Bureau  of  Provisions  and  Clothing). 

[1911,  Mar.  4.  Former  engineer  officers  made  additional  numbers.]  That 
officers  on  the  active  list  of  the  line  of  the  United  States  Navy  who,  under 
authority  of  law,  now  perform  engineering  duty  on  shore  only  are  hereby  made 
additional  to  the  numbers  in  the  grades  in  which  they  are  now  serving,  and 
shall  be  carried  as  additional  to  the  numbers  of  each  grade  to  which  they  may 
hereafter  be  promoted:  Provided,  That  said  officers  shall  be  entitled  to  all 
the  benefits  of  retirement  under  existing  or  future  laws  equally  with  other  officers 
of  like  rank  and  service. — (36  Stat.,  1267,  chap.  239.) 


See  notes  to  sections  1363,  and  1390-1394, 
Re\'ised  Statutes. 

Former  officers  of  the  Engineer  Corps  who 
were  restricted  by  act  of  March  3,  1899 
(30  Stat.,  1004),  to  engineering  duty  on 
shore  only,   are  now  made  available  by 


law  for  any  shore  duty  compatible  with 
their  rank  and  grade.     ( See  acts  of  June  30, 
1914,  38  Stat.,  394,  and  Mar.  3,   1915,  38- 
Stat.,  930,  noted  under  sections  1390  and 
1404,  R.  S.) 


This  pro\'ision  is  now  inapplicable  to  officers  of 
the  rank  of  lieutenant  commander  and 
above.  (See  act  of  Aug.  29, 1916,  39  Stat., 
579,  as  amended  by  act  of  July  1,  1918,  40 
Stat.,  718.) 


[1911,  Mar.  4.  Officers  failing  physically  for  promotion,  retired  in  higher 
rank.]  Hereafter,  if  any  officer  of  the  United  States  Navy  shall  fail  in  his 
physical  examination  for  promotion  and  be  found  incapacitated  for  service  by 
reason  of  physical  disability  contracted  in  the  line  of  duty,  he  shall  be  retired 
with  the  rank  to  which  his  seniority  entitled  him  to  be  promoted. — (36  Stat., 
1267,  chap.  239.) 

See  note  to  section  1457,  ReWsed  Statutes, 
under  ' '  Rank  on  retii-ement  of  officer  fail- 
ing to  qualify  for  promotion;"  and  see  sec- 
tions 1588-1595,  Re\dsed  Statutes,  as  to 
pay  of  retired  officers. 

See  section  1622,  Re\'ised  Statutes,  as  to  retired 
officers  of  the  Marine  Corps. 

[1911,  Mar.  4.  Y.  M.  C.  A.  buildings  in  Navy  yards.]  That  the  Secretary 
of  the  Navy  is  authorized,  in  his  discretion,  to  furnish  hereafter,  without 
charge,  heat  and  light  for  the  Young  Men's  Cliristian  Association  buildings  in 
navy  yards  and  stations. — (36  Stat.,  1274,  chap.  239.) 

[1911,  Mar.  4.  Naval  supply  account.]  Hereafter  the  Naval  Supply 
Account  for  the  Naval  Establishment,  as  created  by  the  act  of  June  twenty-fifth, 
nineteen  hundred  and  ten,  under  the  Bureau  of  Supplies  and  Accounts,  shall 
govern  the  charging,  crediting,  receipt,  purchase,  transfer,  manufacture,  repair, 
issue,  and  consumption  of  all  stores  for  the  Naval  Establishment,  excepting  the 
materials  named  in  that  act  and  such  other  materials  as  the  Secretary  of  the 
Navy  may  designate:  Provided,  That  the  amount  expended  under  General 
Account  of  Advances  for  the  purchase  and  manufacture  of  stores  and  materials 
for  the  Naval  Establishment  shall  not  exceed  the  amount  available  for  such 
purposes.— (36  Stat.,  1279,  chap.  239.) 


1366 


PL  S.  STATUTES  AT  LARGE. 


Mar.  4,  1911. 


The  act  of  June  25,  1910  (36  Stat.,  792),  referred 
to  in  the  pro\ision,  and  which,  as  original!  j' 
enacted,  was  temporary  legislation,  read  as 
follows: 

"Naval  supply  account  for  the  Naval 
Establishment:  All  stores  on  hand  July 
first,  nineteen  hundred  and  ten,  shall  be 
charged  to  a  naval  supply  account  on  the 
records  of  the  Bureau  of  Supplies  and  Ac- 
counts, and  all  purchases  of  stock  or  ex- 
penditures for  manufactured  or  repaired 
articles  for  stock  at  navy-yards  or  stations, 
diu"ing  the  fiscal  years  nineteen  hundred 
and  eleven  and  nineteen  hundred  and 
twelve  shall  be  charged  to  this  account  and 
be  paid  for  fi-om  '  General  account  of  ad- 
vances. ' 

■'The  amount  so  advanced  during  the 
fiscal  years  nineteen  hundred  and  eleven 
and  nineteen  hundred  and  twelve  shall  be 
charged  to  the  proper  appropriations  as 
these  stores  are  consumed  from  stock,  and 
when  disbursements  made  for  all  other 
purposes  are  accomplished,  the  amount  so 
charged  shall  be  returned  to  'General  ac- 
count of  advances'  by  pay  or  counter  war- 
rants: Provied,  however,  That  such  material 
as  pro\'isions,  clothing  and  small  stores, 
medical  stores,  and  such  other  materials  as 
the  Secretary  of  the  Navy  may  designate, 
may  be  purchased  by  specific  appropriations 
or  transferred  to  specific  appropriations 
before  such  materials  are  issued  for  use  or 
consumption.  The  said  charge,  however,  to 
any  particular  appropriation  shall  belimited 
to  the  amount  appropriated  therefor. 

"Credit  shall  be  made  to  appropriations 
during  said  fiscal  years  nineteen  hundred 
and  eleven  and  nineteen  hundred  and 
twelve  for  the  value  of  surveyed  material 
taken  from  repairs  made  to  ships  or  plant  at 
navy-yards  and  stations,  or  for  stores 
turned  in  from  ships,  and  this  credit  shall 
not  be  used  by  the  bureaus  to  increase  the 


amount  of  that  appropriation,  but  shall  be 
a  deduction  from  the  operating  expenses  of 
the  annual  appropriation  concerned,  sub- 
ject to  the  same  pro\ision  as  stated  in 
above  paragraph." 

For  later  legislation  relating  to  the  naval  supply 
account  and  the  naval  supply  account 
fund,  see  acts  of  June  30,  1914  (38  Stat., 
405),  and  March  1,  1921  (41  Stat.,  1169, 
1170).  See  also  acts  of  March  2,  1891  (26 
Stat.,  807),  and  March  2,  1889  (2b  Stat., 
818);  and  see  sections  418,  3676,  3689,  and 
3718,  Re^'ised  Statutes,  and  notes  thereto. 

The  above-quoted  provision  in  the  act  of  March 
4, 1911,  relating  to  the  naval  supply  account 
was  immediately  preceded  by  the  following 
clause  abolishing  the  Naval  Supply  Fund : 
"The  permanent  Naval  Supply  Fund 
created  by  the  act  of  March  third,  eighteen 
hundred  and  ninety-three,  as  modified  by 
the  acts  of  June  tenth,  eighteen  hundred  and 
ninety-six,  and  March  third,  eightqgn  hun- 
dred and  ninety-seven,  and  further  increas- 
ed by  the  acts  of  January  fifth,  eighteen 
hundred  and  ninety-nine,  and  February 
fourteenth,  nineteen  hundred  and  two, 
is  hereby  abolished,  and  of  the  sum  remain- 
ing on  the  books  of  the  Treasury  to  the  credit 
of  the  said  fund  after  the  adjustment  of  all 
liabilities,  the  Secretary  of  the  Treasmy  is 
hereby  authorized  and  directed  to  cause  the 
sum  of  one  million  five  hundred  thousand 
dollars  transfen'ed  to  the  credit  of  said  fund 
from  the  General  Account  of  Advances  to 
be  returned  to  General  Account  of  Ad- 
vances, and  the  remainder  to  be  covered 
into  the  Treasury. 

The  Naval  Supply  Fund  was  created  by  act  of 
March  3,  1893  (27  Stat.,  723),  and  increased 
by  acts  of  June  10,  1896  (29  Stat.,  370), 
March  3,  1897  (29  Stat.,  658),  January  5, 
1899  (30  Stat.,  781),  and  February  14,  1902 
(32  Stat.,  17).  (See  28  Op.  Atty.  Gen., 
634,  and  29  Op.  Atty.  Gen.,  344.) 


[1911,  Mar.  4.  Marine  Schools  ;  loan  of  vessels,  etc.,  to.]  That  the  Secretary 
of  the  Navy,  to  promote  nautical  education,  is  hereby  authorized  and  empower- 
ed to  furnish,  upon  the  application  in  writing  of  the  governor  of  a  State,  a  suit- 
able vessel  of  the  navy,  with  all  her  apparel,  charts,  books,  and  instruments  of 
navigation,  provided  the  same  can  be  spared  without  detriment  to  the  naval 
service,  to  be  used  for  the  benefit  of  any  nautical  school,  or  school  or  college 
having  a  nautical  branch,  established  at  each  of  the  following  ports  of  the 
United  States:  Boston,  Philadelphia,  New  York,  Seattle,  San  Francisco, 
Baltimore,  Detroit,  Saginaw,  Michigan,  Norfolk,  and  Corpus  Christi,  upon  the 
condition  that  there  shall  be  maintained  at  such  port  a  school  or  branch  of  a 
school  for  the  instruction  of  youths  in  navigation,  steamship-marine  engineer- 
ing, and  all  matters  pertaining  to  the  proper  construction,  equipment,  and  sail- 
ing of  vessels  or  any  particular  branch  thereof. — (36  Stat.,  1353,  chap.  265.) 

Sec.  2.  That  a  sum  not  exceeding  the  amount  annually  appropriated  by 
any  State  or  municipality  for  the  purpose  of  maintaining  such  a  marine  school  or 
schools  or  the  nautical  branch  thereof  is  hereb}"  authorized  to  be  appropriated 
for  the  purpose  of  aiding  in  the  maintenance  and  support  of  such  school  or  schools : 
Provided,  however,  That  appropriations  shall  be  made  for  one  school  in  any  port 


1367 


Mar.  4,1911.  rt.S.  STA  TUTES  A  T  LARGE. 

heretofore  named  in  section  one  and  that  the  appropriation  for  any  one  year 
shall  not  exceed  twenty-five  thousand  dollars  for  any  one  school. — (36  Stat., 
1353,  chap.  265.) 

Sec.  3.  That  the  President  of  the  United  States  is  hereby  authorized, 
when  in  his  opinion  the  same  can  be  done  without  detriment  to  the  public  serv- 
ice, to  detail  proper  officers  of  the  navy-  as  superintendents  of  or  instructors  in 
such  schools :  Provided,  That  if  any  such  school  shall  be  discontinued,  or  the  good 
of  the  naval  service  shall  require,  such  vessel  shall  be  immediately  restored  to 
the  Secretary  of  the  Navy  and  the  officers  so  detailed  vecsXled: And 'provided 
further,  That  no  person  shall  be  sentenced  to  or  received  at  such  schools  as  a 
punishment  or  commutation  of  punishment  for  crime. — (36  Stat.,  1353-1354, 
chap.  265.) 

Sec.  4.  That  all  laws  and  parts  of  laws  in  conflict  herewith  are  hereby 
repealed.— (36  Stat.,  1354,  chap.  265.) 

Similar  provisions  were  previously  embodied  in 
act  of  June  20,  1874  (18  Stat.,  121),  as 
amended  by  act  of  March  3, 1881  (21  Stat., 
505). 

[1911,  Mar.  4.  Retired  officers,  commissions.]  That  commissioned  officers, 
of  the  Army,  Navy,  and  Marine  Corps  on  the  retired  list  whose  rank  has  been  or 
shall  hereafter  be  advanced  by  operation  of  or  in  accordance  with  law  shall  be 
entitled  to  and  shall  receive  commissions  in  accordance  with  such  advanced 
rank.— (36  Stat.,  1354,  chap.  266.) 

See  act  of  March  28,  1896  (29  Stat.,  75) ;  see  also 
note  to  Constitution,  Article  11,  section  3, 
under  "11.  Duty  to  commission  officers;" 


See  act  of  March  3,  1901  (31  Stat.,  1440),  and 
amendments  noted  thereunder  WT-th  re- 
ference to  military  and  nautical  schools. 


and  see  note  to  section  1457,  Revised  Stat- 
utes. 


[1911,  Mar.  4.  Falsification  of  accounts,  etc.;  penalty.]  That  whoever, 
being  an  officer,  clerk,  agent,  or  other  person  holding  any  office  or  employment 
under  the  Government  of  the  United  States  and,  being  charged  with  the  duty 
of  keeping  accounts  or  records  of  any  kind,  shall,  with  intent  to  deceive,  mis- 
lead, injure,  or  defraud  the  United  States  or  any  person,  make  in  any  such 
account  or  record  any  false  or  fictitious  entry  or  record  of  any  matter  relating 
to  or  connected  with  his  duties,  or  whoever  with  like  intent  shall  aid  or  abet 
any  such  officer,  clerk,  agent,  or  other  person  in  so  doing;  or  whoever,  being 
an  officer,  clerk,  agent,  or  other  person  holding  any  office  or  employment 
under  the  Government  of  the  United  States  and,  being  charged  with  the  duty 
of  receiving,  holding,  or  paying  over  moneys  or  securities  to,  for,  or  on  behalf 
of  the  United  States-,  or  of  receiving  or  holding  in  trust  for  any  person  any 
moneys  or  securities,  shall,  with  like  intent,  make  a  false  report  of  such  moneys 
or  securities,  or  whoever  with  like  intent  shall  aid  or  abet  any  such  officer, 
clerk,  agent,  or  other  person  in  so  doing,  shall  be  fined  not  more  than  five 
thousand  dollars,  or  imprisoned  not  more  than  ten  years,  or  both. — (36  Stat., 
1355-1356,  chap.  270.] 

See  section  1624,  Revised  Statutes,  article  14;  and  see  Criminal  Code,  act  of  March  4,  1909, 
section  90  (35  Stat.,  1105). 

[1911,  Mar.  4,  sec.  6.  Bonds  and  contracts,  Panama  Railroad.]  Hereafter 
the  Panama  Railroad  Company  shall  not  be  required  to  give  bond,  either  with 
or  without  surety,  in  contracts  which  it  may  make  to  furnish  services,  materials, 

1868 


PL  3.  STATUTES  AT  LARGE.  Apr.  24,  1912. 

or  supplies  to  the  Army,  Nary,  Marine  Corps,  or  other  departments  of  the 
Government,  and  such  contracts  may  be  made  for  periods  less  than  one  year, 
as  may  be  agreed  on,  and  formal  contracts  in  writing  shall  not  be  required 
unless  agreed  on. — (36  Stat.,   1452,  chap.  285.) 
See  sections  3718,  3719,  and  3744,  Re^-ised  Statutes. 

1911,  Aug.  22.  Partial  payments,  Navy  contracts.]  That  the  Secretary  of 
the  Navy  be,  and  he  hereby  is,  authorized,  in  his  discretion,  to  make  partial 
payments  from  time  to  time  during  the  progress  of  the  work  under  existing 
contracts  and  all  contracts  hereafter  made  under  the  Navy  Department  for 
public  purposes,  but  not  in  excess  of  the  value  of  work  already  done;  and  the 
contracts  hereafter  made  shall  provide  for  a  lien  in  favor  of  the  Government, 
which  lien  is  hereby  made  paramount  to  all  other  liens,  upon  the  articles  or 
thing  contracted  for  on  account  of  all  payments  so  made :  Provided,  That  partial 
payments  shall  not  be  made  under  such  contracts  except  where  stipulated  for, 
and  then  only  in  accordance  with  contract  provisions. — (37  Stat.,  32-33,  chap. 
42.) 


A  pro\'ision  on  this  subject  was  previously 
contained  in  act  of  ]\Iarch  4,  1911  (36  Stat., 
1267),  but  was  expressly  repealed  by  Joint 


Resolution  of  August  14,  1911  (37  Stat.,  38). 
See  section  3648,  Revised  Statutes. 


[1912,  Mar.  7.  Course  at  Naval  Academy ;  commissions  on  graduation.] 
That  the  course  at  the  Naval  Academy  shall  be  four  years,  and  midshipmen 
on  graduation  shall  be  commissioned  ensigns:  Provided,  That  midshipmen  now 
performing  two  years'  service  at  sea  in  accordance  with  existing  law  shall  be 
commissioned  forthwith  as  ensigns  from  the  date  of  the  passage  of  this  Act: 
And  provided,  That  those  midshipmen  of  the  class  which  was  graduated  in 
nineteen  hundred  and  nine,  who  have  completed  two  years'  service  afloat, 
and  who  are  due  for  promotion,  shall  be  commissioned  ensigns  to  take  rank 
with  the  other  members  of  their  class,  according  to  their  standing  as  deter- 
mined by  their  final  multiples,  respectively,  for  the  six  years'  course,  from 
the  fifth  day  of  June,  nineteen  hundred  and  eleven,  the  date  of  rank  to  which 
they  were  entitled  prior  to  the  passage  of  this  Act:  And  provided  further.  That 
no  back  pay  or  allowances  shall  result  by  reason  of  the  passage  of  this  Act. — 
(37  Stat.,  73,  chap.  53.) 

See  sections  1520  and  1521,  Revised  Statutes,  and  notes  thereto. 

[1912,  Apr.  24.  Red  Cross;  use  of  in  time  of  war.]  That  whenever  in  time 
of  war,  or  when  war  is  imminent,  the  President  may  deem  the  cooperation  and 
use  of  the  American  National  Red  Cross  with  the  sanitary  services  of  the  land 
and  naval  forces  to  be  necessary,  he  is  authorized  to  accept  the  assistance 
tendered  by  the  said  Red  Cross  and  to  employ  the  same  under  the  sanitary 
services  of  the  Army  and  Navy  in  conformity  with  such  rules  and  regulations 
as  he  may  prescribe. 

Sec.  2.  That  when  the  Red  Cross  cooperation  and  assistance  with  the 
land  and  naval  forces  in  time  of  war  or  threatened  hostilities  shall  have  been 
accepted  by  the  President,  the  personnel  entering  upon  the  duty  specified  in 
section  one  of  this  Act  shall,  while  proceeding  to  their  place  of  duty,  while 
serving  thereat,  and  while  returning  therefrom,  be  transported  and  subsisted 
at  the  cost  and  charge  of  the  United  States  as  civilian  employees  employed  with 

1369 


June  19,  1912.  Pi.  3.  STATUTES  AT  LARGE. 

the  said  forces,  and  the  Red  Cross  supplies  that  may  be  tendered  as  a  gift 

and  accepted  for  use  in  the  sanitary  service  shall  be  transported  at  the  cost 

and  charge  of  the  United  States. — (37  Stat.,  90-91,  chap.  90.) 

resolution  of  May  8,  1914  (38  Stat.,  771), 
as  to  loan  of  naval  property  to  Red  Cross. 


See  act  of  August  29,  191G  (39  Stat.,  581),  as 
to  detail  of  medical  officers  of  the  Nav>' 
for   dutv   with    the   Red   Cross;   and    see 


[1912,  June  19.  Eight-hour  law;  contract  provisions.]  That  every  contract 
hereafter  made  to  which  the  United  States,  any  Territory,  or  the  District  of 
Columbia  is  a  party,  and  every  such  contract  made  for  or  on  behalf  of  the 
United  States,  or  any  Territory,  or  said  District,  which  may  require  or  involve 
the  employment  of  laborers  or  mechanics  shall  contam  a  provision  ■  that  no 
laborer  or  mechanic  doing  any  part  of  the  work  contemplated  by  the  contract, 
in  the  employ  of  the  contractor  or  any  subcontractor  contracting  for  any  part 
of  said  work  contemplated,  shall  be  required  or  permitted  to  work  more  than 
eight  hours  in  any  one  calendar  day  upon  such  work;  and  every  such  contract 
shall  stipulate  a  penalty  for  each  violation  of  such  provision  in  such  contract 
of  five  dollars  for  each  laborer  or  mechanic  for  every  calendar  day  in  which  he 
shall  be  required  or  permitted  to  labor  more  than  eight  hours  upon  said- work; 
and  any  officer  or  person  designated  as  inspector  of  the  work  to  be  performed 
under  any  such  contract,  or  to  aid  in  enforcing  the  fulfillment  thereof,  shall, 
upon  observation  or  investigation,  forthwith  report  to  the  proper  officer  of 
the  United  States,  or  of  any  Territory,  or  of  the  District  of  Columbia,  all  viola- 
tions of  the  provisions  of  this  Act  directed  to  be  made  in  every  such  contract, 
together  with  the  name  of  each  laborer  or  mechanic  w^ho  has  been  required 
or  permitted  to  labor  in  violation  of  such  stipulation  and  the  day  of  such  viola- 
tion, and  the  amount  of  the  penalties  imposed  according  to  the  stipulation 
in  any  such  contract  shall  be  directed  to  be  withheld  for  the  use  and  benefit 
of  the  United  States,  the  District  of  Columbia,  or  the  Territory  contracting 
by  the  officer  or  person  whose  duty  it  shall  be  to  approve  the  payment  of 
the  moneys  due  under  such  contract,  whether  the  violation  of  the  provisions 
of  such  contract  is  by  the  contractor  or  any  subcontractor.  Any  contractor 
or  subcontractor  aggrieved  by  the  withholding  of  any  penalty  as  hereinbefore 
provided  shall  have  the  right  within  six  months  thereafter  to  appeal  to  the 
head  of  the  department  making  the  contract  on  behalf  of  the  United  States 
or  the  Territory,  and  in  the  case  of  a  contract  made  by  the  District  of  Columbia 
to  the  Commissioners  thereof,  who  shall  have  power  to  review  the  action 
imposing  the  penalty,  and  in  all  such  appeals  from  such  final  order  whereby  a 
contractor  or  subcontractor  may  be  aggrieved  by  the  imposition  of  the  penalty 
hereinbefore  provided  such  contractor  or  subcontractor  may  within  six  months 
after  decision  by  such  head  of  a  department  or  the  Commissioners  of  the 
District  of  Columbia  file  a  claim  in  the  Court  of  Claims,  which  shall  have  juris- 
diction to  hear  and  decide  the  matter  in  like  manner  as  in  other  cases  before 
said  court.— (37  Stat.,  137-138,  chap.  174.) 

Sec.  2.  That  nothing  in  this  Act  shall  apply  to  contracts  for  transporta- 
tion by  land  or  water,  or  for  the  transmission  of  intelligence,  or  for  the  pur- 
chase of  supplies  by  the  Government,  whether  manufactured  to  conform  to 
particular  specifications  or  not,  or  for  such  materials  or  articles  as  may  usually 

1370 


PL  3.  STATUTES  AT  LARGE.  July  31,  1912. 

be  bought  in  open  market,  except  armor  and  armor  plate,  whether  made  to 
conform  to  particular  specifications  or  not,  or  to  the  construction  or  repair  of 
levees  or  revetments  necessary  for  protection  against  floods  or  overflows  on  the 
navigable  waters  of  the  United  States :  Provided,  That  all  classes  of  work  which 
have  been,  are  now,  or  may  hereafter  be  performed  by  the  Government  shall, 
when  done  by  contract,  by  mdividuals,  firms,  or  corporations  for  or  on  behalf 
of  the  United  States  or  any  of  the  Territories  or  the  District  of  Columbia,  be 
performed  m  accordance  with  the  terms  and  provisions  of  section  one  of  this 
Act.  The  President,  by  Executive  order,  may  waive  the  provisions  and 
stipulations  in  this  Act  as  to  any  specific  contract  or  contracts  during  time  of 
war  or  a  time  when  war  is  imminent,  and  until  January  fii'st,  nineteen  hundred 
and  fifteen,  as  to  any  contract  or  contracts  entered  into  in  connection  with  the 
construction  of  the  Isthmian  Canal.  No  penalties  shall  be  imposed  for  any 
violation  of  such  provision  in  such  contract  due  to  any  extraordinary  events 
or  conditions  of  manufacture,  or  to  any  emergency  caused  by  fire,  famine,  or 
flood,  by  danger  to  life  or  to  property,  or  by  other  extraordinary  event  or 
condition  on  account  of  which  the  President  shall  subsequently  declare  the 
violation  to  have  been  excusable.  Nothing  in  this  Act  shall  be  construed 
to  repeal  or  modify  the  Act  entitled  "An  Act  relating  to  the  limitation  of  the 
hours  of  daily  service  of  laborers  and  mechanics  employed  upon  the  public 
works  of  the  United  States  and  of  the  District  of  Columbia"  being  chapter 
three  hundred  and  fifty-two  of  the  laws  of  the  Fifty-second  Congress,  approved 
August  first,  eighteen  hundred  and  ninety-two,  as  modified  by  the  Acts  of 
Congress  approved  February  twenty-seventh,  nineteen  hundred  and  six,  and 
June  thirtieth,  nineteen  hundred  and  six,  or  apply  to  contracts  which  have 
been  or  may  be  entered  into  under  the  provisions  of  appropriation  Acts  ap- 
proved prior  to  the  passage  of  this  Act. — (37  Stat.,  138,  chap.  174.) 

(37  Stat.,  726-727);  and  see  act  of  March 


See  section  3738,  Revised  Statutes,  and  act 
of  August  1, 1892  (27  Stat.,  340),  as  amended 
and  reenacted  by  act  of  March  3,   1913 


4,  1917  (39  Stat.,  1192). 


[1912,  June  26,  Sec.  8.  Membership  fees  and  expenses,  societies  or  asso- 
ciations.] No  money  appropriated  by  this  or  any  other  Act  shall  be  expended 
for  membership  fees  or  dues  of  any  officer  or  employee  of  the  United  States 
or  of  the  District  of  Columbia  in  any  society  or  association  or  for  expenses  of 
attendance  of  any  person  at  any  meeting  or  convention  of  members  of  any 
society  or  association,  unless  such  fees,  dues,  or  expenses  are  authorized  to  be 
paid  by  specific  appropriations  for  such  purposes  or  are  provided  for  in  express 
terms  in  some  general  appropriation. — (37  Stat.,  184,  chap.  182.) 

Subsequent  amendments  to  this  section,  which  were  either  temporaxy  or  did  not  relate 
to  the  Navy,  are  omitted. 

[1912,  July  31.  Prize  fight  films  and  pictures.]  That  it  shall  be  unlawful  for 
any  person  to  deposit  or  cause  to  be  deposited  in  the  United  States  mails 
for  mailing  or  delivery,  or  to  deposit  or  cause  to  be  deposited  with  any  express 
company  or  other  common  carrier  for  carriage,  or  to  send  or  carry  from  one 
State  or  Territory  of  the  United  States  or  the  District  of  Columbia  to  any  other 
State  or  Territory  of  the  United  States  or  the  District  of  Columbia,  or  to  bring 
or  to  cause  to  be  brought  into  the  United  States  from  abroad,  any  film  or 
other  pictorial  representation   of  any  prize  fight  or  encounter  of  pugilists, 

54641°— 22 87  1371 


Aug.  13,  1912.  Ft.  S.  STATUTES  AT  LARGE.  Radio  Regulation. 

under  whatever  name,  which  is  designed  to  be  used  or  may  be  used  for  pur- 
poses of  pubhc  exhibition.— (37  Stat.,  240-241,  chap.  263.) 

Sec.  2.  That  it  shall  be  unlawful  for  any  person  to  take  or  receive  from  the 
mails,  or  any  express  company  or  other  common  carrier,  with  intent  to  sell, 
distribute,  circulate,  or  exhibit  any  matter  or  tiling  herein  forbidden  to  be 
deposited  for  mailing,  delivery,  or  carriage  in  interstate  commerce. — (37 
Stat.,  241,  chap.  263.) 

Sec.  3.  That  any  person  violating  any  of  the  provisions  of  tliis  Act  shall  for 
each  offense,  upon  conviction  thereof,  be  fined  not  more  than  one  thousand 
dollars  or  sentenced  to  imprisonment  at  hard  labor  for  not  more  than  one  year, 
or  both,  at  the  discretion  of  the  court. — (37  Stat.,  241,  chap.  263.) 

See  section  211,  Criminal  Code,  act  of  March  4,  1909  (35  Stat.,  1129),  and  note  thereto. 

[1912,  Aug.  1.  Salvage,  remuneration,  etc.]  That  the  right  to  remunera- 
tion for  assistance  or  salvage  services  shall  not  be  affected  by  common  owTier- 
ship  of  the  vessels  rendering  and  receiving  such  assistance  or  salvage  services. 

Sec.  2.  That  the  master  or  person  in  charge  of  a  vessel  shall,  so  far  as  he 
can  do  so  without  serious  danger  to  his  own  vessel,  crew,  or  passengers,  render 
assistance  to  every  person  who  is  found  at  sea  in  danger  of  being  lost;  and  if 
he  fails  to  do  so,  he  shall,  upon  conviction,  be  liable  to  a  penalty  of  not  exceed- 
ing one  thousand  dollars  or  imprisonment  for  a  term  not  exceeding  two  years, 
or  both. 

Sec.  3.  That  salvors  of  human  life,  who  have  taken  part  m  the  services 
rendered  on  the  occasion  of  the  accident  giving  rise  to  salvage,  are  entitled  to  a 
fair  share  of  the  remuneration  awarded  to  the  salvors  of  the  vessel,  her  cargo, 
and  accessories. 

Sec.  4.  That  a  suit  for  the  recovery  of  remuneration  for  rendering  assist- 
ance or  salvage  services  shall  not  be  maintainable  if  brought  later  than  two 
years  from  the  date  when  such  assistance  or  salvage  was  rendered,  unless  the 
court  in  which  the  suit  is  brought  shall  be  satisfied  that  during  such  period 
there  had  not  been  any  reasonable  opportunity  of  arresting  the  assisted  or 
salved  vessel  ^vithin  the  jurisdiction  of  the  court  or  within  the  territorial  waters 
of  the  country  in  which  the  libelant  resides  or  has  his  principal  place  of  business. 

Sec.  5.  That  nothing  in  this  Act  shall  be  construed  as  applying  to  ships 
of  war  or  to  Government  ships  appropriated  exclusively  to  a  public  service. — 
(37  Stat.,  242,  chap.  268.) 

See  sections  1536  and  4642,  Re^^sed  Statutes,  1918  (40  Stat.,  705),  and  March  9,  1920,  sec- 

and  notes  thereto;  see  also  acts  of  July  1,  tions  10-11  (41  Stat.,  528). 

[1912,  Aug.  13.  Radio  communication,  regulation  of.]  That  a  person, 
company,  or  corporation  within  the  jurisdiction  of  the  United  States  shall  not 
use  or  operate  any  apparatus  for  radio  communication  as  a  means  of  commer- 
cial intercourse  among  the  several  States,  or  with  foreign  nations,  or  upon  any 
vessel  of  the  United  States  engaged  in  interstate  or  foreign  commerce,  or  for 
the  transmission  of  radiograms  or  signals  the  effect  of  which  extends  beyond 
the  jurisdiction  of  the  State  or  Territory  in  which  the  same  are  made,  or  where 
interference  would  be  caused  thereby  with  the  receipt  of  messages  or  signals 
from  beyond  the  jurisdiction  of  the  said  State  or  Territory,  except  under  and 
in  accordance  with  a  license,  revocable  for  cause,  in  that  behalf  granted  by 

1372 


Radio  Regulation.  Ft.  3.  STATUTES  AT  LARGE.  Aug.  13,  1912. 

the  Secretary  of  Commerce  *  *  *  upon  application  therefor;  but  nothing 
in  this  Act  shall  be  construed  to  apply  to  the  transmission  and  exchange  of 
radiograms  or  signals  between  points  situated  in  the  same  State:  Provided, 
That  the  effect  thereof  shall  not  extend  beyond  the  jurisdiction  of  the  said 
State  or  interfere  with  the  reception  of  radiograms  or  signals  from  beyond 
said  jm'isdiction;  and  a  license  shall  not  be  required  for  the  transmission  or 
exchange  of  radiograms  or  signals  by  or  on  behalf  of  the  Government  of  the 
United  States,  but  every  Government  station  on  land  or  sea  shall  have  special 
call  letters  designated  and  published  in  the  list  of  radio  stations  of  the  United 
States  by  the  Department  of  Commerce  *  *  *.  Any  person,  company,  or 
corporation  that  shall  use  or  operate  any  apparatus  for  radio  communication 
in  violation  of  this  section,  or  knowingly  aid  or  abet  another  person,  company, 
or  corporation  in  so  doing,  shall  be  deemed  guilty  of  a  midemeanor,  and  on 
conviction  thereof  shall  be  punished  by  a  fine  not  exceeding  five  hundred 
dollars,  and  the  apparatus  or  device  so  unlawfully  used  and  operated  may  be 
adjudged  forfeited  to  the  United  States.— (37  Stat.,  302-303,  chap.  287.) 

Sec.  2.  That  every  such  license  shall  be  in  such  form  as  the  Secretary  of 
Commerce  *  *  *  shall  determine  and  shall  contain  the  restrictions,  pursuant 
to  this  Act,  on  and  subject  to  which  the  license  is  granted ;  that  every  such  license 
shall  be  issued  only  to  citizens  of  the  United  States  or  Porto  Rico  or  to  a  com- 
pany incorporated  under  the  laws  of  some  State  or  Territory  or  of  the  United 
States  or  Porto  Rico,  and  shall  specify  the  ownership  and  location  of  the  station 
in  which  said  apparatus  shall  be  used  and  other  particulars  for  its  identification 
and  to  enable  its  range  to  be  estimated;  shall  state  the  purpose  of  the  station, 
and,  in  case  of  a  station  in  actual  operation  at  the  date  of  passage  of  this  Act, 
shall  contain  the  statement  that  satisfactory  proof  has  been  furnished  that  it 
was  actually  operating  on  the  above-mentioned  date;  shall  state  the  wave 
length  or  the  wave  lengths  authorized  for  use  by  the  station  for  the  prevention 
of  interference  and  the  hours  for  which  the  station  is  licensed  for  work;  and 
shall  not  be  construed  to  authorize  the  use  of  any  apparatus  for  radio  com- 
munication in  any  other  station  than  that  specified.  Every  such  license  shall  be 
subject  to  the  regulations  contained  herein,  and  such  regulations  as  may  be 
established  from  time  to  time  by  authority  of  this  Act  or  subsequent  Acts  and 
treaties  of  the  United  States.  Every  such  license  shall  provide  that  the  Presi- 
dent of  the  United  States  in  time  of  war  or  public  peril  or  disaster  may  cause 
the  closing  of  any  station  for  radio  communication  and  the  removal  therefrom 
of  all  radio  apparatus,  or  may  authorize  the  use  or  control  of  any  such  station 
or  apparatus  by  any  department  of  the  Government,  upon  just  compensation 
to  the  owners.— (37  Stat.,  303,  chap.  287.) 

Sec.  3.  That  every  such  apparatus  shall  at  all  times  while  in  use  and 
operation  as  aforesaid  be  in  charge  or  under  the  supervision  of  a  person  or 
persons  licensed  for  that  purpose  by  the  Secretary  of  Commerce  *  *  * 
Every  person  so  licensed  who  in  the  operation  of  any  radio  apparatus  shall  fail 
to  observe  and  obey  regulations  contained  in  or  made  pursuant  to  this  Act  or 
subsequent  Acts  or  treaties  of  the  United  States,  or  any  one  of  them,  or  who 
shall  fail  to  enforce  obedience  thereto  by  an  unlicensed  person  while  serving 
under  his  supervision,  in  addition  to  the  punishments  and  penalties  herein 

1373 


Aug.  13,  1912.  Pt.  S.  STATUTES  AT  LARGE.  Radio  Regulation. 

prescribed,  may  suffer  the  suspension  of  the  said  license  for  a  period  to  be 
fixed  by  the  Secretary  of  Commerce  *  *  *  not  exceeding  one  year.  It 
shall  be  un]a^^^ul  to  employ  any  unlicensed  person  or  for  any  unlicensed  person 
to  serve  in  charge  or  in  supervision  of  the  use  and  operation  of  such  apparatus, 
and  any  person  violating  this  provision  shall  be  guilty  of  a  misdemeanor,  and 
on  conviction  thereof  shall  bo  punished  by  a  fine  of  not  more  than  one  hundred 
dollars  or  imprisonment  for  not  more  than  two  months,  or  both,  in  the  discretion 
of  the  court,  for  each  and  every  such  offense:  Provided,  That  in  case  of  emer- 
gency the  Secretary  of  Commerce  *  *  *  may  authorize  a  collector  of 
customs  to  issue  a  temporary  permit,  in  lieu  of  a  license,  to  the  operator  on  a 
vessel  subject  to  the  radio  ship  Act  of  June  twenty-fourth,  nineteen  hundred 
and  ten.— (37  Stat.,  303,  chap.  287.) 

Sec.  4.  That  for  the  purpose  of  preventing  or  minimizing  interference 
with  communication  between  stations  in  which  such  apparatus  is  operated, 
to  facilitate  radio  communication,  and  to  further  the  prompt  receipt  of  distress 
signals,  said  private  and  commercial  stations  shall  be  subject  to  the  regulations 
of  this  section.  These  regulations  shall  be  enforced  by  the  Secretary  of  Com- 
merce *  *  *  through  the  collectors  of  customs  and  other  officers  of  the 
Government  as  other  regulations  herein  provided  for. 

The  Secretary  of  Commerce  *  *  *  may,  in  his  discretion,  waive  the 
provisions  of  any  or  all  of  these  regulations  when  no  interference  of  the  character 
above  mentioned  can  ensue. 

The  Secretary  of  Commerce  *  *  *  may  grant  special  temporary 
licenses  to  stations  actually  engaged  in  conducting  experiments  for  the  develop- 
ment of  the  science  of  radio  communication,  or  the  apparatus  pertaining 
thereto,  to  carry  on  special  tests,  using  any  amount  of  power  or  any  wave 
lengths,  at  such  hours  and  under  such  conditions  as  will  insure  the  least  inter- 
ference with  the  sending  or  receipt  of  commercial  or  Government  radiograms, 
of  distress  signals  and  radiograms,  or  with  the  work  of  other  stations. 

In  these  regulations  the  naval  and  military  stations  shall  be  understood 
to  be  stations  on  land. 

Regulations. 

normal  wave  length. 

First.  Every  station  shall  be  required  to  designate  a  certain  definite  wave 
length  as  the  normal  sending  and  receiving  wave  length  of  the  station.  This 
wave  length  shall  not  exceed  six  hundred  meters  or  it  shall  exceed  one  thousand 
six  hundred  meters.  Every  coastal  station  open  to  general  public  service 
shall  at  all  times  be  ready  to  receive  messages  of  such  wave  lengths  as  are 
required  by  the  Berlin  convention.  Every  ship  station,  except  as  hereinafter 
provided,  and  every  coast  station  open  to  general  public  service  shaU  be  pre- 
pared to  use  two  sending  wave  lengths,  one  of  three  hundred  meters  and  one 
of  six  hundred  meters,  as  required  by  the  international  convention  in  force: 
Provided,  That  the  Secretary  of  Commerce  *  *  *  may,  in  his  discretion, 
change  the  limit  of  wave  length  reservation  made  by  regulations  first  and 
second  to  accord  with  any  international  agreement  to  which  the  United  States 
is  a  party. 

1374 


Radio  Regulation.  Pt.  3.  STATUTES  AT  LARGE.  Aug.  13,  1912. 

OTHER   WAVE    LENGTHS. 

Second.  In  addition  to  the  normal  sending  wave  length  all  stations, 
except  as  provided  hereinafter  in  these  regulations,  may  use  other  sending 
wave  lengths:  Provided,  That  they  do  not  exceed  six  hundred  meters  or  that 
they  do  exceed  one  thousand  six  hundred  meters :  Provided  further,  That 
the  character  of  the  waves  emitted  conforms  to  the  requirements  of  regulations 
third  and  fourth  following. 

USE    OF   A    "pure    WAVE." 

Third.  At  all  stations  if  the  sending  apparatus,  to  be  referred  to  hereinafter 
as  the  "transmitter,"  is  of  such  a  character  that  the  energy  is  radiated  in  two 
or  more  wave  lengths,  more  or  less  sharply  defined,  as  indicated  by  a  sensitive 
wave  meter,  the  energy  in  no  one  of  the  lesser  waves  shall  exceed  ten  per 
centum  of  that  in  the  greatest. —  (37  Stat.,  304,  chap.  287.) 

use  of  a  "sharp  avave." 

Fourth.  At  all  stations  the  logarithmic  decrement  per  complete  oscillation 
in  the  wave  trains  emitted  by  the  transmitter  shall  not  exceed  two-tenths, 
except  when  sending  distress  signals  or  signals  and  messages  relating  thereto. 

use  of  "standard  distress  wave." 

Fifth.  Every  station  on  shipboard  shall  be  prepared  to  send  distress  calls 
on  the  normal  wave  length  designated  by  the  international  convention  in 
force,  except  on  vessels  of  small  tonnage  unable  to  have  plants  insm-ing  that 
wave  length. 

SIGNAL   OF   DISTRESS. 

Sixth.  The  distress  call  used  shall  be  the  international  signal  of  distress 


USE     OF     "broad     INTERFERING     WAVE "     FOR    DISTRESS  SIGNALS. 

Seventh.  When  sending  distress  signals,  the  transmitter  of  a  station  on 
shipboard  may  be  tuned  in  such  a  manner  as  to  create  a  maximum  of  inter- 
ference with  a  maximum  of  radiation. 

DISTANCE    REQL1REMENT    FOR   DISTRESS    SIGNALS. 

Eighth.  Every  station  on  shipboard,  wherever  practicable,  shall  be 
prepared  to  send  distress  signals  of  the  character  specified  in  regulations  fifth 
and  sixth  with  sufficient  power  to  enable  them  to  be  received  by  day  over  sea 
a  distance  of  one  hundred  nautical  miles  by  a  shipboard  station  equipped 
with  apparatus  for  both  sending  and  receiving  equal  in  ail  essential  particulars 
to  that  of  the  station  first  mentioned. 

"right    of   way"    for   DISTRESS    SIGNALS. 

Ninth.  All  stations  are  required  to  give  absolute  priority  to  signals  and 
radiograms  relating  to  ships  in  distress;  to  cease  all  sending  on  hearing  a 

1375 


Aug.  13,  1912.  Pt.  3.  STATUTES  AT  LARGE.  Radio  Regulation. 

distress  signal;  and,  except  when  engaged  in  answering  or  aiding  the  ship 
in  distress,  to  refrain  from  sending  until  all  signals  and  radiograms  relating 
thereto  are  completed. 

REDUCED    POWER    FOR    SHIPS    NEAR    A    GOVERNMENT    STATION. 

Tenth.  No  station  on  shipboard,  when  within  fifteen  nautical  miles  of  a 
naval  or  military  station,  shall  use  a  transformer  input  exceeding  one  kilowatt, 
nor,  when  within  five  nautical  imles  of  such  a  station,  a  transformer  input 
exceeding  one-half  kilowatt,  except  for  sending  signals  of  distress,  or  signals  or 
radiograms  relating  thereto. — (37  Stat.,  305,  chap.  287.) 

INTERCOMMUNICATION. 

Eleventh.  Each  shore  station  open  to  general  public  service  between  the 
coast  and  vessels  at  sea  shall  be  bound  to  exchange  radiograms  with  any  similar 
shore  station  and  with  any  ship  station  without  distinction  of  the  radio  systems 
adopted  by  such  stations,  respectively,  and  each  station  on  shipboard  shall  be 
bound  to  exchange  radiograms  wdth  any  other  station  on  shipboard  without 
distinction  of  the  radio  systems  adopted  by  each  station,  respectively. 

It  shall  be  the  duty  of  each  such  shore  station,  during  the  houi*s  it  is  in 
operation,  to  listen  in  at  intervals  of  not  less  than  fifteen  minutes  and  for  a 
period  not  less  than  two  minutes,  with  the  receiver  tuned  to  receive  messages 
of  three  hundred  meter  wave  lengths. — (37  Stat.,  305-306,  chap.  287.) 

DIVISION    OF    TIME. 

Twelfth.  At  important  seaports  and  at  all  other  places  where  naval  or 
military  and  private  or  commercial  shore  stations  operate  in  such  close  prox- 
imity that  interference  with  the  work  of  naval  and  military  stations  can  not 
be  avoided  by  the  enforcement  of  the  regulations  contained  in  the  foregomg 
regulations  concerning  wave  lengths  and  character  of  signals  emitted,  such 
private  or  commercial  shore  stations  as  do  interfere  with  the  reception  of  signals 
by  the  naval  and  military  stations  concerned  shall  not  use  their  transmitters 
during  the  first  fifteen  minutes  of  each  hour,  local  standard  time.  The  Secre- 
tary of  Commerce  *  *  *  niay,  on  the  recommendation  of  the  department 
concerned,  designate  the  station  or  stations  which  may  be  required  to  observe 
this  division  of  time. 

GOVERNMENT    STATIONS    TO    OBSERVE    DIVISION    OF   TIME. 

Thirteenth.  The  naval  or  military  stations  for  which  the  above-mentioned 
division  of  time  may  be  established  shall  transmit  signals  or  radiograms  only 
during  the  first  fifteen  minutes  of  each  hour,  local  standard  time,  except  in  case 
of  signals  or  radiograms  relating  to  vessels  in  distress,  as  hereinbefore  provided. 

USE    OF    UNNECESSARY    POWER. 

Fourteenth.  In  all  circumstances,  except  in  case  of  signals  or  radiograms 
relating  to  vessels  in  distress,  all  stations  shall  use  the  minimum  amount  of 
energy  necessary  to  carry  out  any  communication  desired. 


1376 


Radio  Regulation.  Pt.  3.  STATUTES  AT  LARGE.  Aug.  13,  1912. 

GENERAL    RESTRICTIONS    ON    PRIVATE    STATIONS. 

Fifteenth.  No  private  or  commercial  station  not  engaged  in  the  transaction 
of  bona  fide  commercial  business  by  radio  communication  or  in  experimentation 
in  connection  with  the  development  and  manufacture  of  radio  apparatus  for 
commercial  purposes  shall  use  a  transmitting  wave  length  exceeding  two  hun- 
dred meters,  or  a  transformer  input  exceeding  one  kilowatt,  except  by  special 
authority  of  the  Secretary  of  Commerce  *  *  *  contained  in  the  license  of 
the  station :  Provided,  That  the  o\vner  or  operator  of  a  station  of  the  character 
mentioned  in  this  regulation  shall  not  be  liable  for  a  violation  of  the  require- 
ments of  the  third  or  fourth  regulations  to  the  penalties  of  one  hundred  dollars 
or  twenty-five  dollars,  respectively,  provided  in  this  section  unless  the  person 
maintaining  or  operating  such  station  shall  have  been  notified  in  writing  that 
the  said  transmitter  has  been  found,  upon  tests  conducted  by  the  Government, 
to  be  so  adjusted  as  to  violate  the  said  third  and  fourth  regulations,  and  oppor- 
tunity has  been  given  to  said  o^vner  or  operator  to  adjust  said  transmitter  in 
conformity  with  said  regulations. 

SPECIAL    RESTRICTIONS    IN    THE    VICINITIES    OF    GOVERNMENT    STATIONS. 

Sixteenth.  No  station  of  the  character  mentioned  in  regulation  fifteenth 
situated  ^vithin  five  nautical  miles  of  a  naval  or  military  station  shall  use  a 
transmitting  wave  length  exceeding  two  hundred  meters  or  a  transformer 
input  exceeding  one-half  Idlowatt. — (37  Stat.,  306,  chap.  287.) 

SHIP    STATIONS    TO    COMMUNICATE    WITH    NEAREST    SHORE    STATIONS. 

Seventeenth.  In  general,  the  sliipboard  stations  shall  transmit  their 
radiograms  to  the  nearest  shore  station.  A  sender  on  board  a  vessel  shall, 
however,  have  the  right  to  designate  the  shore  station  tlii'ough  which  he  desires 
to  have  his  radiograms  transmitted.  If  this  can  not  be  done,  the  wishes  of  the 
sender  are  to  be  complied  with  only  if  the  transmission  can  be  effected  without 
interfering  with  the  service  of  other  stations. 

LIMITATIONS     FOR     FUTURE     INSTALLATIONS     IN     VICINITIES     OF     GOVERNMENT 

STATIONS. 

Eighteenth.  No  station  on  shore  not  in  actual  operation  at  the  date  of  the 
passage  of  this  Act  shall  be  licensed  for  the  transaction  of  commercial  business 
by  radio  communication  within  fifteen  nautical  miles  of  the  following  naval  or 
military  stations,  to  wit:  ^Vrlington,  Virginia;  Key  West,  Florida;  San  Juan, 
Porto  Rico;  North  Head  and  Tatoosh  Island,  Washington;  San  Diego,  Cali- 
fornia; and  those  established  or  which  may  be  established  in  Alaska  and  in  the 
Canal  Zone;  and  the  head  of  the  department  having  control  of  such  Government 
stations  shall,  so  far  as  is  consistent  with  the  transaction  of  governmental  busi- 
ness, arrange  for  the  transmission  and  receipt  of  commercial  radiograms  under 
the  provisions  of  the  Berlin  convention  of  nineteen  hundred  and  six  and  future 
international  conventions  or  treaties  to  which  the  United  States  may  be  a  party, 
at  each  of  the  stations  above  referred  to,  and  shall  fix  the  rates  therefor,  subject 

1377 


Aug.  13,  1912.  Pt.3.  STATUTES  AT  LARGE.  Radio  Regulation. 

to  control  of  such  rates  by  Congress.  At  such  stations  and  wherever  and  when- 
ever shore  stations  open  for  general  public  business  between  the  coast  and  vessels 
at  sea  under  the  provisions  of  the  Berlin  convention  of  nineteen  hundred  and 
six  and  future  international  conventions  and  treaties  to  which  the  United 
States  may  be  a  party  shall  not  be  so  established  as  to  insure  a  constant  service 
day  and  night  without  interruption,  and  in  all  localities  wherever  or  whenever 
such  service  shall  not  be  maintained  by  a  commercial  shore  station  within  one 
hundred  nautical  miles  of  a  naval  radio  station,  the  Secretary  of  the  Navy  shall, 
so  far  as  is  consistent  with  the  transactions  of  governmental  business,  open  naval 
radio  stations  to  the  general  public  business  described  above,  and  shall  fix 
rates  for  such  service,  subject  to  control  of  such  rates  by  Congress.  The  receipts 
from  such  radiograms  shall  be  covered  into  the  Treasury  as  miscellaneous  re- 
ceipts. 

SECRECY    OF    MESSAGES. 

Nineteenth.  No  person  or  persons  engaged  in  or  having  knowledge  of  the 
operation  of  any  station  or  stations,  shall  divulge  or  publish  the  contents  of 
any  messages  transmitted  or  received  by  such  station,  except  to  the  person  or 
persons  to  whom  the  same  may  be  directed,  or  their  authorized  agent,  or  to 
another  station  employed  to  forward  such  message  to  its  destination,  unless 
legally  required  so  to  do  by  the  court  of  competent  jurisdiction  or  other  com- 
petent authority.  Any  person  guilty  of  divulging  or  publishing  any  message, 
except  as  herein  provided,  shall,  on  conviction  thereof,  be  punishable  by  a  fine 
of  not  more  than  two  hundred  and  fifty  dollars  or  imprisonment  for  a  period 
of  not  exceeding  three  months,  or  both  fine  and  imprisonment,  in  the  discretion 
of  the  court.— (37  Stat.,  307,  chap.  287.) 

PENALTIES. 

For  violation  of  any  of  these  regulations,  subject  to  which  a  license  under 
sections  one  and  two  of  this  Act  may  be  issued,  the  owner  of  the  apparatus  shall 
be  liable  to  a  penalty  of  one  hundred  dollars,  which  may  be  reduced  or  remitted 
by  the  Secretary  of  Commerce  *  *  *  r^j^(j  fgj.  repeated  violations  of  any  of 
such  regulations,  the  license  may  be  revoked. 

For  violation  of  any  of  these  regulations,  except  as  provided  in  regulation 
nineteenth,  subject  to  which  a  license  under  section  three  of  this  Act  may  be 
issued,  the  operator  shall  be  subject  to  a  penalty  of  twenty-five  dollars,  which 
may  be  reduced  or  remitted  by  the  Secretary  of  Commerce  *  *  *  j^j^j  f^jj. 
repeated  violations  of  any  such  regulations,  the  license  shall  be  suspended  or 
revoked.— (37  Stat.,  308,  chap.  287.) 

Sec.  5.  That  every  license  granted  under  the  provisions  of  this  Act  for 
the  operation  or  use  of  apparatus  for  radio  conmiunication  shall  prescribe  that 
the  operator  thereof  shall  not  willfully  or  maliciously  interfere  with  any  other 
radio  communication.  Such  interference  shall  be  deemed  a  misdemeanor,  and 
upon  conviction  thereof  the  owner  or  operator,  or  both,  shall  be  punishable 
by  a  fine  of  not  to  exceed  five  hundred  dollars  or  imprisonment  for  not  to  exceed 
one  year,  or  both.— (37  Stat.,  308,  chap.  287.) 

Sec.  6.  That  the  expression  "radio  communication"  as  used  in  this  Act 
means  an}^  system  of  electrical  communication  by  telegraphy  or  telephony 

1378 


Pt.  3.  STATUTES  AT  LAR3E.  Aug.  22,  1912. 

without  the  aid  of  any  wire  connecting  the  points  from  and  at  which  the  radio- 
grams, signals,  or  other  communications  are  sent  or  received. — (37  Stat.,  308, 
chap.  287.) 

Sec.  7.  That  a  person,  company,  or  corporation  within  the  jurisdiction 
of  the  United  States  shall  not  knowingly  utter  or  transmit,  or  cause  to  be 
uttered  or  transmitted,  any  false  or  fraudulent  distress  signal  or  call  or  false 
or  fraudulent  signal,  call,  or  other  radiogram  of  any  kind.  The  penalty  for  so 
uttering  or  transmitting  a  false  or  fraudulent  distress  signal  or  call  shall  be  a 
fine  of  not  more  than  two  thousand  five  hundred  dollars  or  imprisonment  for 
not  more  than  five  years,  or  both,  in  the  discretion  of  the  court,  for  each  and 
every  such  offense,  and  the  penalty  for  so  uttering  or  transmitting,  or  causing  to 
be  uttered  or  transmitted,  any  other  false  or  fraudulent  signal,  call,  or  other 
radiogram  shall  be  a  fine  of  not  more  than  one  thousand  dollars  or  imprison- 
ment for  not  more  than  two  years,  or  both,  in  the  discretion  of  the  court,  for 
each  and  every  such  offense. — (37  Stat.,  308,  chap.  287.) 

Sec.  8.  That  a  person,  company,  or  corporation  shall  not  use  or  operate 
any  apparatus  for  radio  communication  on  a  foreign  ship  in  territorial  waters 
of  the  United  States  otherwise  than  in  accordance  with  the  provisions  of  sec- 
tions four  and  seven  of  this  Act  and  so  much  of  section  live  as  imposes  a  penalty 
for  interference.  Save  as  aforesaid,  nothing  in  this  Act  shall  apply  to  apparatus 
for  radio  communication  on  any  foreign  ship. — (37  Stat.,  308,  chap.  287.) 

Sec.  9.  That  the  trial  of  any  offense  under  this  Act  shall  be  in  the  district 
in  which  it  is  committed,  or  if  the  offense  is  committed  upon  the  high  seas  or 
out  of  the  jurisdiction  of  any  particular  State  or  district  the  trial  shall  be  in  the 
district  where  the  offender  may  be  found  or  into  which  he  shall  be  first 
brought.— (37  Stat.,  308,  chap.  287.) 

Sec.  10.  That  this  Act  shall  not  apply  to  the  Philippine  Islands. — (37  Stat., 
308,  chap.  287.) 

By  Executive  Order  No.  2585,  April  6,  1917, 
the  President  directed,  by  authority  of 
this  act,  "that  such  radio  stations  within 
the  j  urisdiction  of  the  United  States  as  are 
required  for  naval  communications  shall 
be  taken  over  by  the  Government  of  the 
United  States  and  used  and  controlled  by 
it,  to  the  exclusion  of  any  other  control  or 
use;  and,  furthermore,  that  all  radio  sta- 
tions not  necessary  to  the  Government  of 
the  United  States  may  be  closed  for  radio 
communication;"  and  that  "the  enforce- 
ment of  this  order  is  hereby  delegated  to 


the  Secretary  of  the  Navy,  who  is  author- 
ized and  directed  to  take  such  action  in 
the  premises  as  to  him  may  appear  neces- 
sary. "  (See  sec.  2  of  this  act,  above  set 
forth.) 
By  Joint  Resolution  of  June  5,  1920  (41  Stat., 
1061),  provision  was  made  for  operation  of 
Government  radio  stations  for  the  use  of  the 
general  public  until  two  years  from  the  date 
thereof;  and  further  that  all  Government 
stations  shall  otherwise  be  used  and 
operated  in  accordance  with  the  above  act 
of  August  13,  1912. 

[1912,  Aug.  22.  Certificates  of  discharge,  etc.,  in  true  names.]  That  the 
Secretary  of  War  and  the  Secretary  of  the  Navy  be,  and  they  are  hereby,  au- 
thorized and  required  to  issue  certificates  of  discharge  or  orders  of  acceptance 
of  resignation,  upon  application  and  proof  of  identity,  in  the  true  name  of  such 
persons  as  enlisted  or  served  under  assumed  names,  wliile  minors  or  otherwise, 
in  the  Army  or  Navy  during  any  war  between  the  United  States  and  any  other 
nation  or  people  and  were  honorably  discharged  therefrom.  Applications  for 
said  certificates  of  discharge  or  amended  orders  of  resignation  may  be  made 
by  or  on  behalf  of  persons  entitled  to  them,  but  no  such  certificate  or  order  shall 


1379 


See  sections  1426-1427,  Revised  Statutes,  and 
notes  thereto. 


Aug.  22,  1912.  Pt.  3.  STATUTES  AT  LARGE. 

be  issued  where  a  name  was  assumed  to  cover  a  crime  or  to  avoid  its  conse- 
quence.—(37  Stat.,  324,  chap.  329.) 

Previous  provisions  on  this  subject  were  con- 
tained in  the  act  of  April  14,  1890  (26 
Stat.,  bh^,  as  amended  and  reenacted  by 
act  of  June  25,  1910  (36  Stat.,  824). 

[1912,  Aug.  22.  Retirement  of  officers  to  create  vacancies.]  That  here- 
after any  ofliccr  retired  under  the  provisions  of  sections  eight  and  nine  of  the 
act  approved  March  third,  eighteen  hundred  and  ninety-nine,  an  act  to  reor- 
ganize and  increase  the  efficiency  of  the  personnel  of  the  Navy  and  Marine 
Corps  of  the  United  States,  shall  be  retired  with  the  rank  and  three-fourths  the 
sea  pa}^  of  the  grade  from  which  he  is  retired. — (37  Stat.,  328,  chap.  335.) 

See  act  of  ^larch  3,  1899,  section  8  (30  Stat., 

1006).     Section   9   of  the   same  act,    also 

referred  to  in  the  above  provision,   was 

repealed  bv  act  of  March  3,  1915  (38  Stat., 

938). 
By  act  of  May  30,  1908  (35  Stat.,  501),  it  was 

provided  that  ''in  computing  the  pay  of 


retired  officers  of  the  Navy,  the  ten  per 
cent  additional  pay  allowed  for  sea  duty  or 
for  shore  duty  beyond  the  continental 
limits  of  the  United  States  shall  not  be 
included." 
See  generally  sections  1443-1465,  Revised 
Statutes,  as  to  retired  officers  of  the  Navy. 

[1912,  Aug.  22.  Chiefs  of  bureaus,  permanent  commission  and  pay  provi- 
sions repealed.]  That  the  portion  of  the  act  entitled  "An  act  making  appro- 
priations for  the  naval  service  for  the  fiscal  year  ending  June  thirtieth,  nine- 
teen hundred  and  eleven,  and  for  other  purposes,"  approved  June  twenty- 
fourth,  nineteen  hundred  and  ten,  which  reads  as  follows: 

"The  pay  and  allowances  of  chiefs  of  bureaus  of  the  Navy  Department  shall 
be  the  highest  shore-duty  pay  and  allowances  of  the  rear  admiral  of  the  lower 
nine,  and  all  officers  of  the  Navy  who  are  now  serving  or  who  shall  hereafter 
serve  as  chief  of  bureau  in  the  Navy  Department,  and  are  eligible  for  retire- 
ment after  thirty  years'  service,  shall  have,  while  on  the  active  list,  the  rank, 
title,  and  emoluments  of  a  chief  of  bureau,  in  the  same  manner  as  is  already 
provided  by  statute  law  for  such  officers  upon  retirement  by  reason  of  age  or 
length  of  service,  and  such  officers,  after  thirty  years'  service,  shall  be  entitled 
to  and  shall  receive  new  commissions  in  accordance  with  the  rank  and  title 
hereby  conferred,"  be,  and  the  same  is  hereby,  repealed:  Provided,  That  no 
officer  who  has  received  his  commission  under  the  provisions  of  said  act  shall 
be  deprived  of  said  commission  or  the  rank,  title,  and  emoluments  thereof  by 
virtue  of  this  repeal.— (37  Stat.,  329,  chap.  335.) 


The  enactment  hereby  repealed  was  contained 
in  the  act  of  June  24,  1910  (36  Stat.,  607- 
608).  As  to  officers  who  had  benefited  by 
that  enactment,  and  the  construction 
thereof,  see  note  to  section  421,  Revised 
Statutes,  under  "IV.  Rank,  Titles,  and 
Precedence,"  subheading  ''Rank  of  chiefs 
of  bureaus. ' ' 


By  act  of  July  1,  1918  (40  Stat,  717),  chiefs  of 
bureaus  in  the  Navy  Department  are  to 
receive  the  same  pay  and  allowances  as 
chiefs  of  bureaus  in  the  War  Department, 
and  are  to  have  corresponding  rank. 


[1912,  Aug.  22.  Retired  officers,  employment  on  active  duty.]  Hereafter 
any  naval  officer  on  the  retired  list  may,  with  his  consent,  in  the  discretion  of 
the  Secretary  of  the  Navy,  be  ordered  to  such  duty  as  he  may  be  able  to  perform 
at  sea  or  on  shore,  and  while  so  employed  in  time  of  peace  shall  receive  the  pay 
and  allowances  of  an  officer  of  the  active  list  of  the  same  rank :  Provided,  That 
no  such  retired  officer  so  employed  on  active  duty  shall  receive,  in  time  of  peace, 

1380 


Pt.  3.  STATUTES  AT  LARGE. 


Aug.  22,  1912. 


any  greater  pay  and  allowances  than  the  pay  and  allowances  which  are  now  or 
may  hereafter  be  provided  by  law  for  a  lieutenant  senior  grade  on  the  active 
list  of  like  length  of  service:  And  provided  further ,  That  any  such  officer  whose 
retired  pay  exceeds  the  highest  pay  and  allowances  of  the  grade  of  lieutenant 
senior  grade,  shall,  while  so  employed  in  time  of  peace,  receive  his  retired  pay 
only,  in  lieu  of  all  other  pay  and  allowances. — (37  Stat.,  329,  chap.  335.) 


See  notes  to  sections  1462,  1592,  and  1622,  Re- 
vised Statutes;  see  also  section  1225,  Re- 
vised Statutes,  and  note  thereto. 


By  act  of  Augiist  29,  1916  (39  Stat.,  581),  gen- 
eral provision  was  made  for  the  pay  of  any 
retired  officer  of  the  naval  service  detailed 
on  active  dutv. 


March  3,   1915  (38  Stat.,  929).     See  also 
note  to  section  418,  Revised  Statutes. 


[1912,  Aug.  22.  Useless  papers  on  vessels,  disposal  of.]  The  act  "to  author- 
ize and  provide  for  the  disposal  of  useless  papers  in  executive  departments," 
approved  February  sixteenth,  eighteen  hundred  and  eighty-nine,  is  hereby 
amended  so  that  accumulations  in  the  files  of  vessels  of  the  Navy  of  papers  that, 
in  the  judgment  of  the  commander  in  chief  of  the  fleet,  are  not  needed  or  useful 
in  the  transaction  of  current  business  and  have  no  permanent  value  or  historical 
interest  may  be  disposed  of  by  the  commander  in  chief  of  the  fleet  by  sale,  after 
advertisement  for  proposals,  as  waste  papers  if  practicable,  or  if  not  practicable, 
then  otherwise,  as  may  appear  best  for  the  interests  of  the  Government,  the 
commander  in  chief  of  the  fleet  to  make  report  thereon  to  the  Secretary  of  the 
Navy;  provided  always  that  no  papers  less  than  two  years  old  from  the  date  of 
the  last  indorsement  thereon  and  no  correspondence,  or  the  related  papers,  with 
officers  or  representatives  of  a  foreign  government  shall  be  destroyed  or  disposed 
of  by  such  commander  in  chief  of  the  fleet. — (37  Stat.,  329-330,  chap.  335.) 

See  acts  of  Februarv  16,  1889  (25  Stat.,  672), 
March  2,  1895  '(28  Stat.,  933),  February 
16,  1909,  section  14  (35  Stat.,  622),  and 

[1912,  Aug.  22.  Extension  of  enlistments.]  That  the  term  of  enlistment 
of  any  enlisted  man  in  the  Navy  may,  by  his  voluntary  written  agreement, 
under  such  regulations  as  may  be  prescribed  by  the  Secretary  of  the  Navy  with 
the  approval  of  the  President,  be  extended  for  a  period  of  either  one,  two,  three, 
or  four  full  years  from  the  date  of  expiration  of  the  then  existing  four-year  term 
of  enlistment,  and  subsequent  to  said  date  such  enlisted  men  as  extend  the  term 
of  enlistment  as  authorized  in  this  section  shall  be  entitled  to  and  shall  receive 
the  same  pay  and  allowances  in  all  respects  as  though  regularly  discharged  and 
reenlisted  immediately  upon  expiration  of  their  term  of  enlistment,  and  such 
extension  shall  not  operate  to  deprive  them  upon  discharge  at  the  termination 
thereof  of  any  right,  privilege,  or  benefit  to  which  they  would  be  entitled  at  the 
expiration  of -a  four-year  term  of  enlistment.— (37  Stat.,  331,  chap.  335.) 

See  notes  to  sections  1418  and  1573,  Re^^.sed 

Statutes. 
Extension  of  minority  enlistments  in  the  Navy 

and  Marine  Corps  was  authorized  by  act 

of  April  25,  1917  (40  Stat.,  38). 
By  act  of  June  4,  1920,  section  7  (41  Stat., 

[1912,  Aug.  22.  Discharge  prior  to  expiration  of  enlistment.]  That  under 
such  regulations  as  the  Secretary  of  the  Navy  may  prescribe,  with  the  approval 
of  the  President,  any  enlisted  man  may  be  discharged  at  any  time  within  three 
months  before  the  expiration  of  his  term  of  enlistment  or  extended  enlistment 


1836),  enlistments  in  the  Navy  and  Marine 
Corps  were  authorized  for  terms  of  two, 
three,  or  four  years,  and  it  was  provided 
that  all  laws  applicable  to  four-year 
enlistments  shall  apply  to  enlistments  for 
a  shorter  period. 


1381 


Aug.  22,  1912.  Pt.  S.  STA  TUTES  A  T  LARGE. 

without  prejudice  to  any  right,  privilege,  or  benefit  that  he  would  have  received, 
except  pay  and  allowances  for  the  unexpired  period  not  served,  or  to  which 
he  would  thereafter  l)ecome  entitled,  had  he  served  his  full  term  of  enlistment 
or  extended  enlistment:  Provided,  That  nothing  in  this  act  shall  be  held  to 
reduce  or  increase  the  pay  and  allowances  of  enlisted  men  of  the  Xavy  now 
authorized  pursuant  to  law. — (37  Stat.,  331,  chap.  335.) 

See  notes  to  sections  1418,   1569,   and   1573,    '  men  without  pay  for  the  unexpired  portion 


of  their  enlistment,  in  lieu  of  discharge  by 
purchase. 


Re\ised  Statutes. 
By  act  of  August  29,    1916  (39   Stat.,   580), 
authority  was  granted  to  furlough  enlisted 

[1912,  Aug.  22.  Advertising  for  recruits.]  That  authority  is  hereby 
granted  to  employ  the  services  of  an  advertising  agency  in  advertising  for 
recruits  under  such  terms  and  conditions  as  are  most  advantageous  to  the 
Government.— (37  Stat.,  332,  chap.  335.) 


August  29,  1916  (39  Stat.,  614\  March  4, 
1917  (39  Stat.,  1190i,  June  15,  1917  (40 
Stat.,  214),  and  July  1,  1918  (40  Stat., 
736),  being  preceded  in  the  act  last  cited 
by  the  word  "hereafter." 
Annual  appropriations  are  made,  under  •  "Bu- 
reau of  Xa^"igation, '"  for  ■"advertising  for 
and  obtaining  men  and  apprentice  seamen . " ' 
(E.  g.,  act  June  4,  1920,  41  Stat.,  815.; 


This  pro^'ision,  which  was  appended  to  the 
appropriation  for  '"Recruiting, "'  under 
'"Bureau  of  Xa\igation.'  was  repeated  in 
the  acta  of  March  4,  1913  (37  Stat.,  894), 
and  June  30,  1914  (38  Stat.,  395\  except 
that  in  the  act  last  cited  the  words  "or 
agencies"  were  inserted  after  the  word 
"agency."'  A  similar  pro^■i3ion  under 
" 'fi^nsportation  and  recruiting,  Marine 
Corps,      was    contained    in    the    acts    of 

[1912,  Aug.  22.  Pearl  Harbor,  rules  governing  navigation,  anchorage,  etc.] 
For  the  proper  control,  protection,  and  defense  of  the  naval  station,  harbor, 
and  entrance  channel  at  Pearl  Harbor.  Territory  of  Hawaii,  the  Secretary  of 
the  Navy  is  hereby  authorized,  empowered,  and  directed  to  adopt  and  pre- 
scribe suitable  rules  and  regulations  governing  the  navigation,  movement,  and 
anchorage  of  vessels  of  whatsoever  character  in  the  waters  of  Pearl  Harbor, 
island  of  Oahu,  Hawaiian  Islands,  and  in  the  entrance  channel  to  said  harbor, 
and  to  take  all  necessary  measures  for  the  proper  enforcement  of  such  rules  and 
regulations. — (37  Stat.,  341,  chap.  335.) 

See  sections  4233,  4412,  and  4413,  Re^'ised  Statutes,  and  notes  thereto. 

[1912,  Aug,  22.  Nautical  almanac,  exchange  of  data  with  foreign  offices, 
use  of  employees,  etc.]  The  Secretary  of  the  Xav}'  is  hereby  authorized  to 
arrange  for  the  exchange  of  data  with  such  foreign  almanac  offices  as  he  may 
from  time  to  time  deem  desirable  -v^-ith  a  view  to  reducing  the  amount  of  duplica- 
tion of  work  in  preparing  the  different  national  nautical  and  astronomical 
almanacs  and  increasing  the  total  data  which  may  be  of  use  to  navigators  and 
astronomers  available  for  publication  in  the  American  Ephemeris  and  Xautical 
^Vlmanac:  Provided,  That  any  such  arrangement  shall  be  terminable  on  one 
year's  notice:  Provided  further,  That  the  work  of  the  Xautical  Almanac  Office 
during  the  continuance  of  any  such  arrangement  shall  be  conducted  so  that  in 
case  of  emergency  the  entire  portion  of  the  work  intended  for  the  use  of  navi- 
gators may  be  computed  by  the  force  employed  by  that  office,  and  without  any 
foreign  cooperation  whatsoever:  Promded  further,  That  any  employee  of  the 
Xautical  Almanac  Office  who  may  be  authorized  in  any  annual  appropriation 
bill  and  whose  services  in  whole  or  in  part  can  be  spared  from  the  duty  of  pre- 
paring for  publication  the  annual  volumes  of  the  American  Ephemeris  and 

1382 


Pt.  3.  STATUTES  AT  LARGE.  Aug.  23,  1912. 

Nautical  Almanac  may  be  employed  by  said  office  in  the  duty  of  improving  the 
tables  of  the  planets,  moon,  and  stars,  to  be  used  in  preparing  for  publication 
the  annual  volumes  of  the  office. — (37  Stat.,  342,  chap.  335.)  - 

See  note  to  section  436,  Re\-ised  Statutes. 

[1912,  Aug.  22.  Pay  of  gunnery  sergeants.]  That  the  gunnery  sergeants 
of  the  Marine  Corps  shall  hereafter  receive  the  same  pay,  and  be  entitled  to  the 
allowances,  rank,  continuous-service  pay,  and  retired  pay  of  a  first  sergeant  in 
said  corps. —  (37  Stat.,  351,  chap.  335.) 

See  note  to  section  1612,  Re^'ised  Statutes. 

[1912,  Aug.  22.  Enlisted  men,  restriction  on  employment  of.]  No  enlisted 
men  or  seamen,  not  including  commissioned  and  warrant  officers,  on  battle- 
ships of  the  Navy,  when  such  battleships  are  docked  or  laid  up  at  an}-  navy 
yard  for  repairs,  shall  be  ordered  or  required  to  perform  any  duties  except 
such  as  are  or  may  be  performed  by  the  crew  while  at  sea  or  in  a  foreign  port. — 
(37  Stat.,  355,  chap.  335.) 

See  act  of  June  3,  1916,  section  35  (39  Stat.,  188),  as  to  restrictions  on  emploj-nient  of  en- 
listed men. 

[1912,  Aug.  23,  sec.  4.  Civil  service;  efficiency  ratings;  promotions,  demo- 
tions, and  dismissals;  honorably  discharged  sailors,  etc.]  The  Civil  Seryice 
Commission  shall,  subject  to  the  approval  of  the  President,  establish  a  system 
of  efficiency  ratings  for  the  classified  service  in  the  several  executive  depart- 
ments in  the  District  of  Columbia  based  upon  records  kept  in  each  department 
and  independent  establishment  with  such  frequency  as  to  make  them  as  nearly 
as  possible  records  of  fact.  Such  system  shall  provide  a  minunum  rating  of 
efficiency  which  must  be  attained  by  an  employee  before  he  may  be  promoted; 
it  shall  also  provide  a  rating  below  which  no  employee  may  fall  without  being 
demoted;  it  shall  further  provide  for  a  rating  below  which  no  employee  may  fall 
without  being  dismissed  for  inefficiency.  AU  promotions,  demotions,  or  dis- 
missals shall  be  governed  by  provisions  of  the  civil  service  rules.  Copies  of 
all  records  of  efficiency  shall  be  furnished  by  the  departments  and  independent 
establishments  to  the  Civil  Service  Commission  for  record  in  accordance  with 
the  provisions  of  this  section:  Provided,  That  in  the  event  of  reductions  being 
made  in  the  force  in  any  of  the  executive  departments  no  honorably  discharged 
soldier  or  sailor  whose  record  in  said  department  is  rated  good  shall  be  dis- 
charged or  dropped,  or  reduced  in  rank  or  salary. — (37  Stat.,  413,  chap.  350.) 

Any  person  knowingly  violating  the  provisions  of  this  section  shall  be 
summarilv  removed  from  office,  and  may  also  upon  conviction  thereof  be 
punished  by  a  fine  of  not  more  than  one  thousand  dollars  or  by  iniprisonment 
for  not  more  than  one  year. — (37  Stat.,  414,  chap.  350.) 


Bv  act  of  February  28,  1916  (39  Stat.,  Ih'),  a 
Bureau  of  Efficiency  was  created  as  an 
independent  establishment,  and  the  duties 
relating  to  efficiency  ratings,  which  were 
i  mposed  upon  the  Ci\'il  Service  Commission 
by  this  act,  were  expressly  transferred  to 
said  bureau.  PrcA-iously,  a  DiA-ision  of 
Efiiciency  of  the  Civil  Service  Commission 
had  been  established  bv  act  of  March  4, 
1915  (38  Stat.,  1007). 

See  note    to   section  416,   Revised    Statutes, 


imder  "Honorably  discharged  soldiers  and 
sailors,"  and  particularly  the  case  of 
Persing  v.  Daniels  (43  App.  D.  C,  470), 
noted  thereunder,  which  was  decided 
prior  to  the  acts  above  cited  pro\-iding  for 
the  enforcement  of  tliis  section.  See 
also  act  of  August  15,  1876  (19  Stat.,  169), 
and  section  1754,  Revised  Statutes. 
See  act  of  August  24,  1912,  section  6  (37  Stat., 
555),  for  other  pro\isions  as  to  remo^'al  of 
ci^■il  employees. 


1383 


Aug.  23,  1912.  Pt.  3.  STATUTES  AT  LARGE. 

[1912,  Aug.  23,  sec.  5.  Penalty  for  violating  law  as  to  number  and  pay  of 
employees,  etc.]  'i'huL  any  person  violating  section  lour  of  tlie  legislative, 
executive,  and  judicial  appropriation  Act  approved  August  fifth,  eighteen 
hundred  and  eighty-two  (Statutes  at  Large,  volume  twenty-two,  page  two 
hundred  and  fifty-five),  shall  be  summarily  removed  from  office,  and  may  also 
upon  conviction  thereof  be  punished  by  a  fine  of  not  more  than  one  thousand 
dollars  or  by  imprisonment  for  not  more  than  one  year. — (37  Stat.,  414,  chap. 
350.) 

See  act  of  August  5, 1882,  section  4  (22  Stat. ,  255-256) ;  see  also  section  3G82,  Revised  Statutes, 
and  act  of  June  22,  1900,  section  6  (34  Stat.,  449). 

[1912,  Aug.  23,  sec.  6.  Apportionment  of  contingent  funds,  etc.]  That  in 
addition  to  the  apportionment  required  by  the  so-called  antideficiency  Act, 
approved  February  twenty-seventh,  nineteen  hundred  and  six  (Statutes  at 
Large,  volume  thirty-four,  page  forty-nine),  the  head  of  each  executive  depart- 
ment shall,  on  or  before  the  beginning  of  each  fiscal  year,  apportion  to  each 
office  or  bureau  of  his  department  the  maximum  amount  to  be  expended  therefor 
during  the  fiscal  year  out  of  the  contingent  fund  or  funds  appropriated  for  the 
entire  year  for  the  department,  and  the  amounts  so  apportioned  shall  not  be 
increased  or  diminished  during  the  year  for  which  made  except  upon  the 
written  direction  of  the  liead  of  the  department,  in  which  there  sliall  be  fully 
expressed  his  reasons  therefor;  and  hereafter  there  shall  not  be  purchased 
out  of  any  other  fund  any  article  for  use  in  any  office  or  bureau  of  any  executive 
department  in  Washington,  District  of  Columbia,  which  could  be  purchased 
out  of  the  appropriations  made  for  the  regular  contingent  funds  of  such  de- 
partment or  of  its  offices  or  bureaus. — (37  Stat.,  414,  chap.  350.) 

The  act  of  February  27,  1906  (34  Stat.,  49),  referred  to  in  this  section,  amended  and  re- 
enacted  section  3679,  Revised  Statutes;  see  that  section  and  note  thereto. 

[1912,  Aug.  23,  sec.  7.  Telephones  in  private  residences,  etc.]  That  no  money 
appropriated  by  this  or  any  other  Act  shall  be  expended  for  telephone  service 
installed  in  any  private  residence  or  private  apartment  or  for  tolls  or  other 
charges  for  telephone  service  from  private  residences  or  private  apartments, 
except  for  long-distance  telephone  tolls  required  strictly  for  the  public  business, 
and  so  shown  by  vouchers  duly  sworn  to  and  approved  by  the  head  of  the 
department,  division,  bureau,  or  office  in  which  the  official  using  such  telephone 
or  incurring  the  expense  of  such  tolls  shall  be  employed. — (37  Stat.,  414,  chap. 
350.) 


By  a  parap^aph  in  the  naval  appropriation  act 
of  August  29,  1916  (39  Stat.,  681),  the 
accounting  officers  of  the  Treasury  were 
"authorized  and  directed  to  allow  in  the 
accounts  of  disbursing  officers  of  the  Navy 


all  payments  for  telephones  in  Govern- 
ment quarters"  which  had  been  dis- 
allowed under  this  section  "by  decision 
of  the  comptroller. " 


[1912,  Aug.  23,  sec.  8.  Distribution  of  departmental  publications  by  Public 
Printer.]  That  no  money  appropriated  by  this  or  any  other  Act  shall  be  used 
after  the  first  day  of  October,  nineteen  hundred  and  twelve,  for  services  in  any 
executive  department  or  other  Government  establishment  at  Washington, 
District  of  Columbia,  in  the  work  of  addressing,  wrapping,  mailing,  or  other- 
wise dispatching  any  publication  for  public  distribution,  except  maps,  weather 
reports,  and  weather  cards  issued  by  an  executive  department  or  other  Govem- 

1384 


Pt.  3.  STATUTES  AT  LARGE.  Aug.  24,  1912. 

merit  establishment  at  Washington,  District  of  Columbia,  or  for  the  purchase 
of  material  or  supplies  to  be  used  in  such  work;  and  on  and  after  October  first, 
nineteen  hundred  and  twelve,  it  shall  be  the  duty  of  the  Public  Printer  to  per- 
form such  work  at  the  Government  Printing  Office.  Prior  to  October  first, 
nineteen  hundred  and  twelve,  each  executive  department  and  other  Govern- 
ment establishment  at  Washington,  District  of  Columbia,  shall  transfer  to  the 
Public  Printer  such  machines,  equipment,  and  materials  as  are  used  in  address- 
ing, wrapping,  mailing,  or  otherwise  dispatching  publications;  and  each  head  of 
such  executive  department  and  other  Government  establishment  at  Washing- 
ton, District  of  Columbia,  shall  furnish  from  time  to  time  to  the  Public  Printer 
mailing  lists,  in  convenient  form,  and  changes  therein,  or  franked  slips,  for  use 
in  the  public  distribution  of  publications  issued  by  such  department  or  estab- 
lishment; and  the  Public  Printer  shall  furnish  copies  of  any  publication  only  in 
accordance  with  the  provisions  of  law  or  the  instruction  of  the  head  of  the  de- 
partment or  establishment  issuing  the  publication.  The  employment  of  all 
persons  in  the  several  executive  departments  and  other  Government  estab- 
lishments at  Washington,  District  of  Columbia,  wholly  in  connection  with  the 
duties  herein  transferred  to  the  Public  Printer,  or  whose  services  can  be  dis- 
pensed with  or  devolved  upon  another  because  of  such  transfer,  shall  cease  and 
determine  on  or  before  the  first  day  of  October,  nineteen  hundred  and  twelve, 
and  their  salaries  or  compensation  shall  lapse  for  the  remainder  of  the  fiscal 
year  nineteen  hundred  and  thirteen  and  be  covered  into  the  Treasury.  A  de- 
tailed statement  of  all  machines,  equipment,  and  material  transferred  to  the 
Government  Printing  Office  by  operation  of  this  provision  and  of  all  employ- 
ments discontinued  shall  be  submitted  to  Congress  at  its  next  session  by  the 
head  of  each  executive  department  and  other  Government  establishments  at 
Washington,  District  of  Columbia,  in  the  annual  estimates  of  appropriations: 
Provided,  That  nothing  in  this  section  shall  be  construed  as  appl^nng  to  orders, 
instructions,  directions,  notices,  or  circulars  of  information,  printed  for  and 
issued  by  any  of  the  executive  departments  or  other  Government  establish- 
ments or  to  the  distribution  of  public  documents  by  Senators  or  Members  of 
the  House  of  Representatives  or  to  the  folding  rooms  and  document  rooms  of 
the  Senate  or  House  of  Representatives. — (37  Stat.,  414^1.5,  chap.  350.) 

See  act  of  January  12,  1895,  sections  18,  61,  73,  and  92  (28  Stat.,  603,  610,  620,  and  623). 

[1912,  Aug-.  23,  sec.  9.  Estimates,  form  and  time  of  submission.]  That  until 
otherwise  provided  by  law,  the  regular  annual  estimates  of  appropriations  for 
expenses  of  the  Government  of  the  United  States  shall  be  prepared  and  sub- 
mitted to  Congress,  by  those  charged  with  the  duty  of  such  preparation  and 
submission,  only  in  the  form  and  at  the  time  now  required  by  law,  and  in  no 
other  form  and  at  no  other  time. — (37  Stat.,  415,  chap.  350.) 

See  sections  430  and  3660,  Revised  Statutes,  and  laws  noted  thereunder. 

[1912,  Aug.  24,  sec.  6.  Estimates,  lump  sum  appropriations ;  notes  in  Book  of 
Estimates.]  That  there  shall  be  submitted  hereafter,  in  the  annual  Book  of 
Estimates  following  every  estimate  for  a  general  or  lump-sum  appropriation, 
except  public  buildings  or  other  public  works  constructed  under  contract,  a 
statement  showing  in  parallel  columns: 

1385 


Aug.  24,  1912.  Pt.  .?.  STATUTES  AT  LARGE. 

First,  the  niimbor  of  persons,  if  any,  intended  to  be  employed  and  the 
rates  of  compensation  to  each,  and  the  amounts  contemplated  to  be  expended 
for  each  of  any  other  o])jccts  or  classes  of  expenditm'cs  specified  or  contemplated 
in  the  estimate,  including  a  statement  of  estimated  unit  cost  of  any  construction 
work  pro})osed  to  be  done;  and 

Second,  the  number  of  persons,  if  any,  employed  and  the  rate  of  compen- 
sation paid  each,  and  the  amounts  expended  for  each  other  object  or  class  of 
expenditure,  and  the  actual  unit  cost  of  any  construction  work  done,  out  of  the 
appropriation  corresponding  to  the  estimate  so  submitted,  during  the  com- 
pleted fiscal  year  next  preceding  the  period  for  which  the  estimate  is  submitted. 

Other  notes  shall  not  be  submitted  following  any  estimate  embraced  in 
the  annual  Book  of  Estimates  other  than  such  as  shall  suggest  changes  in  form 
or  order  of  arrangement  of  estimates  and  appropriations  and  reasons  for  such 
changes.— (37  Stat.,  487,  chap.  355;  38  Stat.,  680,  chap.  223.) 


This  section  was  expressly  amended  and  reen- 
acted  to  read  as  above  by  act  of  August  1, 
1914,  section  10  (38  Stat,  680). 

See  sections  430  and  3600,  ReAdsed  Statutes, 


and  laws  noted  thereunder;  see  also  act  of 
July  1,  1916,  section  4  (39  Stat.,  336),  which 
expressly  modified  this  section  in  certain 
particulars. 


[1912,  Aug.  24,  sec.  7.  Permanent  appropriations  defined.]  No  specific 
or  indefinite  appropriation  made  hereafter  in  any  regular  annual  appropriation 
Act  shall  be  construed  to  be  permanent  or  available  continuously  without 
reference  to  a  fiscal  year  unless  it  belongs  to  one  of  the  following  five  classes: 
"Rivers  and  harbors,"  ''lighthouses,"  "fortifications,"  ''public  buildings," 
and  "pay  of  the  Navy  and  Marine  Corps,"  last  specifically  named  in  and  ex- 
cepted from  the  operation  of  the  provisions  of  the  so-called  "covering-in  Act" 
approved  June  twentieth,  eighteen  hundred  and  seventy-four,  or  unless  it  is 
made  in  terms  expressly  providing  that  it  shall  continue  available  beyond  the 
fiscal  year  for  which  the  appropriation  Act  in  which  it  is  contained  makes 
provision. —  (37  Stat.,  487,  chap.  355.) 

See  Section  3689,  Revised  Statutes,  and  act  of  notes  thereto;  see  also  act  of  July  26,  1886, 

June  20,  1874,  section  5  (18  Stat.,  110),  and  section  2,  (24  Stat.,  157). 

[1912,  Aug.  24,  sec.  8.  Oaths  administered  by  chief  clerks  and  other  em- 
ployees.] After  June  thirtieth,  nineteen  hundred  and  twelve,  postmasters, 
assistant  postmasters,  collectors  of  customs,  collectors  of  internal  revenue, 
chief  clerks  of  the  various  executive  departments  and  bureaus,  or  clerks  desig- 
nated by  them  for  the  purpose,  the  superintendent,  the  acting  superintendent, 
custodian,  and  principal  clerks  of  the  various  national  parks  and  other  Govern- 
ment reservations,  superintendent,  acting  superintendents,  and  principal  clerks 
of  the  different  Indian  superintendencies  or  Indian  agencies,  and  chiefs  of  field 
parties,  are  required,  empowered,  and  authorized,  when  requested,  to  administer 
oaths,  required  by  law  or  otherwise,  to  accounts  for  travel  or  other  expenses 
against  the  United  States,  with  like  force  and  effect  as  officers  having  a  seal; 
for  such  services  when  so  rendered,  or  when  rendered  on  demand  after  said  date 
by  notaries  public,  who  at  the  time  are  also  salaried  officers  or  employees  of  the 
United  States,  no  charge  shall  be  made;  and  on  and  after  July  first,  nineteen 
hundred  and  twelve,  no  fee  or  money  paid  for  the  services  herein  described 
shall  be  paid  or  reimbursed  by  the  United  States, —  (37  Stat.,  487,  chap.  355.) 
See  section  183,  Revised  Statutes,  and  note  thereto. 

1386 


PL  3.  STATUTES  AT  LARGE.  Aug.  24,  1912. 

[1912,  Aug.  24,  sec.  9.  Fur  seals,  etc. ;  use  of  naval  forces  to  protect.] 
That  it  shall  be  the  duty  of  the  President  to  cause  a  guard  or  patrol  to  be  main- 
tained in  the  waters  frequented  by  the  seal  herd  or  herds  and  sea  otter,  in  the 
protection  of  which  the  United  States  is  especially  interested,  composed  of  naval 
or  other  public  vessels  of  the  United  States  designated  by  him  for  such  service; 
and  any  officer  of  any  such  vessel  engaged  in  such  service  and  any  other  officers 
duly  designated  by  the  President  may  search  any  vessel  of  the  United  States, 
in  port,  or  in  territorial  waters  of  the  United  States,  or  on  the  high  seas,  when 
suspected  of  having  violated,  or  being  about  to  violate,  the  provisions  of  said 
convention,  or  of  this  Act,  or  of  any  regulation  made  thereunder,  and  may  seize 
such  vessel  and  the  officers  and  crew  thereof  and  bring  them  into  the  most 
accessible  port  of  the  Territory  or  of  any  of  the  States  mentioned  in  the  eighth 
section  of  this  Act  for  trial. —  (37  Stat.,  501,  chap.  373.) 

Sec.  10.  That  any  vessel  or  person  described  in  the  first  section  of  this 
Act  offending  or  being  about  to  offend  against  the  prohibitions  of  the  said  con- 
vention, or  of  this  Act,  or  of  the  regulations  made  thereunder,  may  be  seized 
and  detained  by  the  naval  or  other  duly  commissioned  officers  of  any  of  the  par- 
ties to  the  said  convention  other  than  the  United  States,  except  within  the 
territorial  jurisdiction  of  one  of  the  other  of  said  parties,  on  condition,  however, 
that  when  such  vessel  or  person  is  so  seized  and  detained  by  officers  of  any 
party  other  than  the  United  States  such  vessel  or  person  shall  be  delivered  as 
soon  as  practicable  at  the  nearest  point  to  the  place  of  seizure,  with  the  vritnesses 
and  proofs  necessary  to  establish  the  offense  so  far  as  they  are  under  the  Control 
of  such  party,  to  the  proper  official  of  the  United  States,  whose  courts  alone 
shall  ha.ve  jurisdiction  to  try  the  offense  and  impose  the  penalties  for  the  same: 
Provided,  however,  That  the  said  officers  of  any  party  to  said  convention  other 
than  the  United  States  shall  arrest  and  detain  vessels  and  persons,  as  in  this 
section  specified,  only  after  such  party,  by  appropriate  legislation  or  otherwise, 
shall  have  authorized  the  naval  or  other  officers  of  the  United  States  duly  com- 
missioned and  instructed  by  the  President  to  that  end  to  arrest,  detain,  and 
deliver  to  the  proper  officers  of  such  party  vessels  and  subjects  under  the  juris- 
diction of  that  Government  offending  against  said  convention  or  any  statute 
or  regulation  made  by  that  Government  to  enforce  said  convention.  The  Presi- 
dent of  the  United  States  shall  determine  by  proclamation  when  such  authority 
has  been  given  by  the  other  parties  to  said  convention,  and  his  determination 
shall  be  conclusive  upon  the  question;  and  such  proclamation  may  be  modified, 
amended,  or  revoked  by  proclamation  of  the  President  whenever,  in  his  judg- 
ment, it  is  deemed  expedient. — (37  Stat.,  501-502,  chap.  373.) 

thirtieth  parallel  of  north  latitude  and 
including  the  seas  of  Bering,  Kamchatka, 
Okhotsk,  and  Japan;  nor  shall  any  such 
person  or  vessel  kill,  captxu-e,  or  piu-sue 
sea  otter  in  any  of  the  waters  mentioned 
beyond  the  distance  of  three  miles  fi'om 
the  shore  line  of  the  territory  of  the  United 
States." 
See  notes  to  sections  1529  and  1536,  Revised. 
Statutes. 


The  first  section  of  this  act  read  as  follows: 
"That  no  citizen  of  the  United  States,  nor 
person  owing  duty  of  obedience  to  the  laws 
or  the  treaties  of  the  United  States,  nor 
any  of  their  vessels,  nor  any  vessel  of  the 
United  States,  nor  any  person  belonging 
to  or  on  board  of  such  vessel,  shall  kill, 
capture,  or  pursue,  at  any  time  or  in  any 
manner  whatever,  any  fur  seal  in  the  waters 
of  the  north  Pacific  Ocean  north  of  the 


[1912,  Aug.  24,  sec.  3.  Navy  mail  clerks,  bonds.]     That  every  Navy  mail 
clerk  and  assistant  Navy  mail  clerk  shall  give  bond  to  the  United  States  in 

54641'— 22 88  1387 


Aug.  24,  1912.  Pt.  3.  STATUTES  A  T  LARGE. 

such  penal  .sum  as  the  Postmaster  General  may  deem  sufficient- for  the  faithful 
performance  of  his  duties  as  such  clerk. —  (37  Stat.,  554,  chap.  389.) 
See  act  of  May  27,  1908  (35  Stat.,  417^18),  and  laws  quoted  thereunder. 

[1912,  Aug.  24,  sec.  6.  Civil  service  employees,  discharge;  right  to  petition 
Congress,  etc.] — That  no  person  in  the  classified  civil  service  of  the  United 
States  shall  he  removed  therefrom  except  for  such  cause  as  will  promote  the 
ofTioiency  of  said  service  and  for  reasons  given  in  writing,  and  the  person  whose 
removal  is  sought  shall  have  notice  of  the  same  and  of  any  charges  preferred 
against  him,  and  be  furnished  with  a  copy  thereof,  and  also  be  allowed  a  reason- 
able time  for  personally  answering  the  same  in  writing;  and  affidavits  in  sup- 
port thereof;  but  no  examination  of  witnesses  nor  any  trial  or  hearing  shall  be 
required  except  in  the  discretion  of  the  officer  making  the  removal;  and  copies 
of  charges,  notice  of  hearing,  answer,  reasons  for  removal,  and  of  the  order  of 
removal  shall  be  made  a  part  of  the  records  of  the  proper  department  or  office, 
as  shall  also  the  reasons  for  reduction  in  rank  or  compensation;  and  copies  of  the 
same  shall  be  furnished  to  the  person  affected  upon  request,  and  the  Civil  Serv- 
ice Commission  also  shall,  upon  request,  be  furnished  copies  of  the  same 
*  *  *.  The  right  of  persons  employed  in  the  civil  service  of  the  United 
States,  either  individually  or  collective!}^,  to  petition  Congress,  or  any  Member 
thereof,  or  to  furnish  information  to  either  House  of  Congress,  or  to  any  com- 
mittee or  member  thereof,  shall  not  be  denied  or  interfered  with. —  (37  Stat., 
555,  chap.  389.) 


See  act  of  August  23,  1912,  section  4  (37  Stat., 
413-414),  and  references  thereunder;  see 
also  note  to  section  416,  Revised  Statutes. 


As  to  influencing  legislation,  see  act  of  August 
24,  1912,  section  6  (37  Stat.,  555),  and  note 
to  Constitution,  Article  I,  section  1. 


[1912,  Aug.  24.  Ordnance  stores,  sales  by  War  Department;  payment  by 
departments.]  That  hereafter  when  authorized  transfers  or  sales  of  ordnance 
or  ordnance  stores  are  made  to  another  bureau  of  the  War  Department,  or  to 
another  executive  department  of  the  Government,  payment  therefor  shall  be 
made  by  the  proper  disbursing  officer  of  the  bureau,  office,  or  department  con- 
cerned. When  the  transaction  is  between  two  bureaus  of  the  War  Department, 
the  price  to  be  charged  shall  be  the  cost  price  of  the  stores,  including  the  cost 
of  inspection.  When  the  transaction  is  between  the  Ordnance  Department 
and  another  executive  department  of  the  Government,  the  price  to  be  charged 
shall  include  the  cost  price  of  the  stores  and  the  costs  of  inspection  and  transpor- 
tation.—(37  Stat.,  589,  chap.  391.) 

See  act  of  March  3,  1909  (35  Stat.,  751),  as  to  May  21,   1920,   section  7   (41   Stat.,  613), 

sale  of  Army  ordnance  property  to  officers  as  to  use  of  appropriations  for  interchange 

of  Navy  and  Marine  Corps.  of    supplies,    etc.,    between    departments 

See  act  of  July  11,   1919   (41  Stat.,   132),   as  and  bureaus. 

to  interchange  of  supplies,  etc.,  between       See  notes  to  sections  418  and  1135,  Revised 

Army  and  Navy  without  compensation.  Statutes,  as  to  transfers,  etc.,  of  Govem- 

See  acts  of  March  4,  1915  (38  Stat.,  1084),  and  ment  property. 

[1912,  Aug.  24,  sec.  6.  Cadet  service,  Naval  Academy,  not  credited  in  Army.] 
That  hereafter  the  service  of  a  cadet  who  may  hereafter  be  appointed  to  the 
United  States  Military  Academy  or  to  the  Naval  Academy  shall  not  be  counted 
in  computing  for  any  purpose  the  length  of  service  of  any  officer  of  the  Army. — 
(37  Stat.,  594,  chap.  391.) 

See  act  of  March  4,  1913  (37  Stat.,  891). 

1388 


notes  to  sections  169  and  416,  Revised 
Statutes,  and  see  acts  of  June  22,  1906, 
section  5  (34  Stat.  ,449),  and  August  1, 1914, 
section  12  (38  Stat.,  680). 


Ft.  3.  STATUTES  A  T  LARGE.  Mar.  2,  1913. 

[1912,  Aug.  26,  sec.  7.  Lump  sum  employees,  restrictions  on  salaries  and 
transfers.]  That  no  part  of  any  money  contained  herein  or  hereafter  appro- 
priated in  lump  sum  shall  be  available  for  the  payment  of  personal  services 
at  a  rate  of  compensation  in  excess  of  that  paid  for  the  same  or  similar  services 
during  the  preceding  fiscal  year;  nor  shall  any  person  employed  at  a  specific 
salary  be  hereafter  transferred  and  hereafter  paid  from  a  lump-sum  appropria- 
tion a  rate  of  compensation  greater  than  such  specific  salary,  and  the  heads  of 
departments  shall  cause  this  provision  to  be  enforced:  Provided,  That  this  sec- 
tion shall  not  apply  to  mechanics,  artisans,  their  helpers  and  assistants, 
laborers,  or  any  other  employees  whose  duties  are  of  similar  character  and 
required  in  carrying  on  the  various  manufacturing  or  constructing  operations 
of  the  Government.— (37  Stat.,  626,  chap.  408;  37  Stat.,  790,  chap.  142.) 

This    section    was    expressly    amended    and 

reenacted    to    read    as   above    by   act   of 

March  4,  1913,  section  4  (37  Stat.,  790). 
See  acts  of  October  6,   1917   (40  Stat.,  383), 

and  March  28,  1918  (40  Stat.,  498);  see  also 

[1913,  Feb.  26.  Handwriting  evidence.]  That  in  any  proceeding  before  a 
court  or  judicial  officer  of  the  United  States  where  the  genuineness  of  the  hand- 
writing of  any  person  may  be  involved,  any  admitted  or  proved  handwriting 
of  such  person  shall  be  competent  evidence  as  a  basis  for  comparison  by  wit- 
nesses, or  by  the  jury,  court,  or  officer  conducting  such  proceeding,  to  prove  or 
disprove  such  genuineness. — ^(37  Stat.,  683,  chap,  79.) 

See  sections  859-906,  Revised  Statutes,  as  to 
evidence  in  criminal  proceedings,  etc. ; 
see    also    note    to    section   1624,    Revised 

[1913,  Mar.  2.  Naval  records,  transfer  to  the  Navy  Department;  publication.] 
That,  within  the  limits  of  the  appropriation  herein  made,  the  Secretary  of  War 
is  hereby  authorized  and  directed  to  collect  or  copy  and  classify,  with  a  view  to 
publication,  the  scattered  military  records  of  the  Revolutionary  War,  including 
all  troops  acting  under  State  authority,  and  the  Secretary  of  the  Navy  is  hereby 
authorized  and  directed  to  collect  or  copy  and  classify,  with  a  view  to  publica- 
tion, the  scattered  naval  records  of  the  Revolutionary  War. 

Sec.  2.  That  all  such  records  in  the  possession  or  custody  of  any  official 
of  the  United  States  shall  be  transferred,  the  military  records  to  the  War  De- 
partment and  the  naval  records  to  the  Navy  Department. 

Sec.  3.  That  there  is  hereby  appropriated  for  the  purposes  of  this  Act,  out 
of  any  money  in  the  Treasury  not  otherwise  appropriated,  twenty-five  thousand 
dollars  for  the  War  Department  and  seven  thousand  dollars  for  the  Navy 
Department:  Provided,  That  the  aforesaid  sums  of  money  shall  be  expended, 
respectively,  under  the  direction  of  the  Secretary  of  War  and  the  Secretary  of 
the  Navy,  and  that  they  shall  make  to  Congress  each  year  detailed  statements 
showdng  how  the  money  herein  appropriated  has  been  expended  and  to  whom: 
Provided  further.  That  no  part  of  the  sum  hereby  appropriated  shall  be  used 
in  the  purchase  of  any  such  records  that  may  be  discovered  either  in  the  hands 
of  private  owners  or  in  public  depositories. — (37  Stat.,  723,  chap.  94.) 

See  acts  of  April  27,  1904  (33  Stat.,  403),  and  June  29,  1906  (34  Stat.,  579);  and  see  section 
418,  Revised  Statutes,  and  note  thereto. 

1389 


Statutes,  articles  29  and  42,    as    to    evi- 
dence before  courts-martial. 


Mar.  4,  1013.  PL  3.  STATUTES  AT  LARGE. 

[1913,  Mar.  4.  Midshipman  service,  not  credited  as  naval  service.]  Here- 
after the  service  of  a  niidshipinaii  at  the  United  States  Naval  Academy,  or 
that  of  a  cadet  at  the  United  States  Mihtary  Academy,  who  may  hereafter  be 
appointed  to  the  United  States  Naval  Academy,  or  to  the  United  States  Mihtary 
Academy,  shall  not  be  counted  in  computing  for  any  purpose  the  length  of 
service  of  any  officer  in  the  Navy  or  in  the  Marine  Corps. — (37  Stat.,  891, 
chap.  148.) 

See  note  to  next  paragraph  and  see  act  of  August  24,  1912  (37  Stat.,  594). 

[1913,  Mar.  4.  longevity  pay,  constructive  service,  precedence.]  That  so 
much  of  an  act  entitled  "An  act  to  reorganize  and  increase  the  efficiency  of  the 
personnel  of  the  Navy  and  Marine  Corps,"  approved  March  third,  eighteen 
hundred  and  ninety-nine,  which  reads  as  follows:  ''and  that  all  officers,  includ- 
ing warrant  officers,  who  have  been  or  may  be  appointed  to  the  Navy  from 
civil  life  shall,  on  the  date  of  appointment,  be  credited  for  computing  their 
pay,  with  five  years'  service,"  shall  not  apply  to  any  person  entering  the  Navy 
from  and  after  the  passage  of  tliis  act:  Provided,  That  section  fourteen  hunderd 
and  eighty-six  of  the  Revised  Statutes  shall  not  apply  in  the  case  of  officers 
who  enter  the  Navy  after  the  passage  of  this  act  and  all  such  officers  shall  take 
precedence  when  of  the  same  grade  according  to  their  respective  dates  of  com- 
mission in  that  grade. — (37  Stat.,  891-892,  chap.  148.) 


See  note  to  section  1443,  Re\ised  Statutes,  as 
to  length  of  service  for  retirement. 

The  pro\dsion  of  law  quoted  in  this  paragi-aph 
is  contained  in  section  13  of  the  Na\^ 
personnel  act  approved  March  3,  1899 
(30  Stat.,  1007). 


See  preceding  paragraph   as   to   midshipman 

service. 
See  act  of  June  29,  1906  (34  Stat.,  554),  as  to 

cadet  service  during  the  civil  war. 
See  note  to  section  1486,  Revised  Statutes,  as 

to  constructive  service  for  precedence. 
See  note  to  section  1556,  Revised  Statutes,  as 

to  longevity  pay. 

[1913,  Mar.  4.  Pay  on  promotion  from  date  stated  in  commission.]  That 
all  officers  of  the  Navy  who,  since  the  third  day  of  March,  eighteen  hundred  and 
ninety-nine,  have  been  advanced  or  may  hereafter  be  advanced  in  grade  or 
rank  pursuant  to  law  shall  be  allowed  the  pay  and  allowances  of  the  higher 
grade  or  rank  from  the  dates  stated  in  their  commissions. — (37  Stat.,  892, 
chap  148.) 

See  act  of  June  22,  1874  (18  Stat.,  191);  and  see  notes  to  sections  1561  and  1562,  Revised 
Statutes. 

[1913,  Mar  4.  Leave  of  absence,  civil  employees,  additional  pay  not  allowed.] 
That  employees  while  taking  their  leaves  of  absence  shall  not  receive  compensa- 
tion for  services  rendered  during  the  period  of  such  leave  of  absence  in  addition 
to  leave  pay.— (37  Stat.,  893,  chap.  148.) 


See  note  to  section  1545,  Re^•ised  Statutes,  as 
to  leaves  of  absence,  employees  at  navy 
yards  and  stations. 


This  was  a  proviso  following  a  clause  relating 
to  pay  during  the  ensuing  fiscal  year  for 
"clerical,  inspection,  and  messenger  ser- 
vice in  navy  yards,  naval  stations,  and 
purchasing  pay  offices." 

[1913,  Mar.  4.  Contracts  to  be  awarded  by  items.]  That  from  and  after 
the  passage  of  this  act  all  awards  of  contracts  for  provisions  for  the  Navy  shall 
be  made  by  individual  items;  the  contract  for  each  item  being  awarded  to  the 
lowest  responsible  bidder. — (37  Stat.,  904,  chap.  148.) 

See  sections  3718  and  3724,  Revised  Statutes,  and  notes  thereto. 

1390 


PL  3.  STATUTES  AT  LARGE. 


June  23,  1913. 


[1913,  Mar.  4.  Servants  in  commissary  department,  Naval  Academy.] 
That  hereafter  such  additional  payments  from  the  midsliipmen's  commissary 
fund  as  the  superintendent  of  the  Naval  Academy  may  deem  necessary  may  be 
made  to  the  servants  authorized  in  the  commissary  department. — (37  Stat., 
907,  chap.  148.) 

A  slightly  different  provision  was  contained  in 

the  act  of  August  22,  1912  (37  Stat..  349). 


See  section  1527,  Revised  Statutes,  and  note 
thereto. 


[1913,  Mar.  4.  Sale  of  Marine  Corps  stores  to  naval  and  civilian  personnel.] 
Pro\T[sions,  Marine  Corps:  *  *  *  Provided,  That  hereafter  so  much  of 
this  appropriation  as  may  be  necessary  may  be  applied  for  the  purchase,  for 
sale  to  officers,  enlisted  men,  and  civilian  employees,  of  such  articles  of  sub- 
sistence stores  as  may  from  time  to  time  be  designated  and  under  such  regula- 
tions as  may  be  prescribed  by  the  Secretary  of  the  Navy. —  (37  Stat.,  909, 
chap.  148.) 

Above  clause  held  to  be  permanent  leg- 
islation.^— When  the  question  of  repeating  the 
above-quoted  provision  in  the  naval  appropria- 
tion act  for  the  fiscal  year  1918  was  presented 
to  the  House  Committee  on  Naval  Affairs,  it 
was  decided  not  to  do  so,  for  the  reason  that  the 
committee  concurred  with  the  vieiy  taken  by 
the  Marine  Headquarters  that  the  clause  above 
quoted  from  the  act  of  August  29,  1916,  was 
permanent  legislation.  This  will  be  seen  by 
reference  to  the  hearings  before  the  Committee 
on  Naval  Affairs  of  the  House  of  Representa- 
tives (64th_Cong.,  2d  sess.,  p.  365).  That  this 
interpretation  is  correct  there   can   be   little 


This  clause  was  repeated  in  acts  of  June  30, 
1914  (38  Stat.,  411),  March  3,  1915  (38  Stat., 
949),  and  August  29,  1916  (39  Stat.,  613), 
after  which  it  was  omitted. 

See  act  of  March  3,  1909  (35  Stat.,  768),  as  to 
sale  of  stores  to  naval  and  ci\iUan  personnel. 

See  act  of  August  29, 1916  (39  Stat. ,  630),  author- 
izing sales  of  Army  subsistence  supplies  to 
officers  and  enlisted  men  of  the  Na\'y  and 
Marine  Corps,  and  sales  of  Na^vy  and  Marine 
Corps  subsistence  supplies  to  officers  and 
enlisted  men  of  the  Army. 

See  act  of  March  6,  1920  (41  Stat.,  506,  507), 
authorizing  sale  of  Navy  and  Marine  Corps 
quartermaster  supplies  to  officers  and  en- 
listed men  of  the  Coast  Guard,  and  to  offi- 
cers of  the  Public  Health  Service. 

See  act  of  June  5,  1920  (41  Stat.,  976),  authoriz- 
ing sale  of  Navy  and  Marine  Corps  sub- 
sistence stores  and  other  supplies  to  honor- 
ably discharged  officers  and  enUsted  men 
of  the  Army,  Navy,  and  Marine  Corps, 
while  receiving  treatment  from  the  Public 
Health  Service. 


doubt,  in  view  of  the  word  "hereafter"  con- 
tained in  the  clause,  it  being  well  understood 
that  the  said  word  makes  permanent  provisions 
contained  in  appropriation  acts.  The  words 
"this  appropriation"  should  be  construed  as 
meaning,  "the  appropriation,  'Provisions, 
Marine  Corps. ' ' '     (File  26255-614,  Feb.  4, 1921.) 


[1913,  May  1,  sec.  3.  Rented  buildings,  District  of  Columbia.]  Hereafter 
the  statement  of  buildings  rented  within  the  District  of  Columbia  for  use  of  the 
Government,  required  by  the  Act  of  July  sixteenth,  eighteen  hundred  and 
ninety-two  (Statutes  at  Large,  volume  twenty-seven,  page  one  hundred  and 
ninety-nine) ,  shall  indicate  as  to  each  building  rented  the  area  thereof  in  square 
feet  of  available  floor  space  for  Government  uses,  the  rate  paid  per  square  foot 
for  such  floor  space,  the  assessed  valuation  of  each  building,  and  what  propor- 
tion, if  any,  of  the  rental  paid  includes  heat,  light,  elevator,  or  other  service. — 
(38  Stat.,  3,  chap.  1.) 

See  act  of  Julv  16,  1892  (27  Stat.,  199),  and  laws  noted  thereunder;  and  see  act  of  May  29, 
1920,  section  7  (41  Stat.,  691).    • 

[1913,  June  23,  sec.  3.  Estimates,  official  designated  for  preparation  of.] 
That  hereafter  the  head  of  each  executive  department  and  other  Government 
establishment  shall,  on  or  before  July  first  in  every  fiscal  year,  designate  from 
among  the  officials  employed  therein  one  person  whose  duty  it  shall  be  to  super- 
vise  the   classification   and   compilation   of   all   estimates   of  appropriations, 


1391 


Feb.  16,  1914.  P/.  .5.  STATUTES  AT  LARGE. 

including  supplemental  and  deficiency  estimates  to  be  submitted  by  such  de- 
partment or  establishment.  In  the  performance  of  their  duties  persons  so 
designated  shall  have  due  regard  for  the  rccfuirements  of  all  laws  respecting  the 
preparation  of  estimates,  including  the  manner  and  time  of  their  submission 
through  the  Treasury  Department  to  Congress;  they  shall  also,  as  early  as  may 
be  practicable,  eliminate  from  all  such  estimates  unnecessary  words  and  make 
imiform  the  language  commonly  used  in  expressing  purposes  or  conditions  of 
appropriations. —  (38  Stat.,  75,  chap.  3.) 

[1913,  July  9.  Midshipmen.]  Midshipmen  on  graduation  shall  be  com- 
missioned ensigns  in  the  Navy,  or  may  be  assigned  by  the  Secretary  of  the 
Navy  to  fill  vacancies  in  the  lowest  commissioned  grades  of  the  Marine  Corps 
or  Staff  Corps  of  the  Navy.— (38  Stat.,  103.) 

[1913,  Dec.  19.  Major  general  commandant,  Marine  Corps;  tenure  of  office, 
etc.]  That  hereafter  when  a  vacancy  shall  exist  in  the  position  of  commandant 
of  the  Marine  Corps  the  President  may  appoint  to  such  position,  by  and  with 
the  advice  and  consent  of  the  Senate,  an  officer  of  the  Marine  Corps  on  the 
active  list  not  below  the  grade  of  field  officer,  who  shall  hold  office  as  such 
commandant  for  a  term  of  four  years,  unless  sooner  relieved,  and  who,  while  so 
serving,  shall  have  the  rank,  pay,  and  allowances  of  a  major  general  in  the 
Army;  and  any  officer  appointed  under  the  provisions  of  this  Act  who  shall  be 
retired  from  the  position  of  commandant  of  the  Marine  Corps,  in  accordance 
with  the  provisions  of  sections  twelve  hundred  and  fifty-one,  sixteen  hundred 
and  twenty-two,  and  sixteen  hundred  and  twenty-three.  Revised  Statutes  of 
the  United  States,  or  by  reason  of  age  or  length  of  service,  shall  have  the  rank 
and  retired  pay  of  a  major  general;  if  retired  for  any  other  reason,  he  shall  be 
placed  on  the  retired  list  of  officers  of  the  grade  to  which  he  belonged  at  the  time 
of  his  retirement:  Provided,  That  an  officer  serving  as  commandant  shall  be 
carried  as  an  additional  number  in  his  grade  while  so  serving,  and  after  his 
return  to  duty  in  his  grade  until  said  grade  is  reduced  to  the  nimiber  authorized 
by  law:  Provided  further,  That  nothing  herein  contained  shall  operate  to 
increase  or  reduce  the  total  number  of  officers  in  the  Marine  Corps  now  provided 
by  law.— (38  Stat.,  241,  chap.  3.) 

See  notes  to  sections  1601  and  1622,  Revised  Statutes,  and  act  of  August  29,   1916  (39 
Stat.,  609). 

[1914,  Feb.  16,  sec.  21.  Civilians  commissioned  in  Regular  Navy  in  time  of 
war ;  reappointment  of  former  officers ;  etc.]  That,  for  the  purpose  of  securing  a 
list  of  persons  especially  qualified  to  hold  commissions  in  the  Navy  or  in  any 
reserve  or  volunteer  naval  force  which  may  hereafter  be  called  for  and  organ- 
ized under  the  authority  of  Congress,  other  than  a  force  composed  of  Organized 
Naval  Militia,  the  Secretary  of  the  Navy  is  authorized  from  time  to  time  to 
convene  examining  boards  at  suitable  and  convenient  places  in  different  parts 
of  the  United  States,  who  shall  examine  as  to  then*  qualifications  for  naval 
duties  all  applicants  who  shall  have  served  in  the  Regular  Navy  of  the  United 
States  or  in  the  Organized  Naval  Militia  of  any  State  or  Territory  or  the  Dis- 
trict of  Columbia.     Such  examination  shall  be   under  rules  and   regulations 


1392 


Ft.  3.  STATUTES  AT  LARGE.  Mar.  12,  1914. 

prescribed  by  the  Secretary  of  the  Navy.  The  record  of  previous  service  of  the 
apphcant  shall  be  considered  as  part  of  the  examination.  Those  applicants 
who  pass  such  examinations  shall  be  certified  as  to  their  fitness  for  naval  duties 
and  rank,  and  shall,  subject  to  a  physical  examination  at  any  time,  constitute 
an  eligible  class  for  commissions,  pursuant  to  such  certification,  in  any  volunteer 
naval  force  hereafter  called  for  and  organized  under  the  authority  of  Congress 
other  than  a  force  composed  of  Organized  Naval  Militia;  and  the  President  is 
hereby  further  authorized,  upon  the  outbreak  of  war,  or  when,  in  his  opinion, 
war  is  imminent,  to  commission  in  the  Regular  Navy  for  the  exigency  of  such 
war  such  of  the  persons  whose  names  have  been  certified  as  above  provided  as 
he  may  select:  Provided,  That  no  one  shall  be  commissioned  to  a  higher  rank 
than  the  rank  for  which  he  may  have  been  recommended  by  said  examining 
board:  And  provided  further,  That  the  President  may  also  commission  or  war- 
rant as  of  the  highest  rank  formerly  held  by  him,  or  the  present  equivalent  of 
such  former  rank  in  case  the  nomenclature  or  some  of  the  specific  duties  of  the 
same  may  have  been  changed,  any  person  who  having  been  formerly  a  com- 
missioned or  warrant  officer  of  the  United  States  Navy  shall  have  been  honor- 
ably discharged  from  the  service:  And  'provided  further ,  That  persons  may  be 
commissioned  in  the  Navy  for  engineer  duties  only,  and  for  all  line  duties  other 
than  engineer  duties,  and  when  so  conmiissioned  shall  have  the  full  rank,  pay, 
precedence,  and  so  forth,  of  the  line  grade  for  which  they  are  commissioned. — 
(38  Stat.,  289-290,  chap.  21.) 


The  remaining  sections  of  this  act  related  to 
the  Naval  Militia,  and  were  repealed  by 
act  of  July  1,  1918  (40_Stat.,  708),  and  later 
revived,  in  part,  until  June  30,  1922,  by 
act  of  June  4,  1920  (41  Stat.,  817). 

See  act  of  August  29,  1916  (39  Stat.,  587),  creat- 
ing a  Naval  Reserve  Force,  and  amend- 
ments noted  thereunder;  see  also  note  to 
section  1363,  Revised  Statutes. 

As  to  officers  for  engineering  duty  only,  see  acts 
of  August  29,  1916  (39  Stat.,  580),  and 
March  3,  1915  (38  Stat.,  930);  see  also  notes 
to  sections  1390,  1404,  and  1488,  Revised 
Statutes. 


Former  oflB.cer  dismissed  from  the  Navy; 
effect  of  pardon. — The  act  of  February  16, 
1914,  section  21  (38  Stat.,  290),  by  its  terms 
applies  only  to  officers  who  have  been  "honor- 
ab  1  y  discharged  from  the  service . ' '  Und  er  that 
act,  an  officer  of  the  Navy  who  has  been  dis- 
missed by  sentence  of  court-martial,  and  subse- 
quently pardoned  for  the  offense,  is  ineligible 
for  reappointment  to  the  Navy.  (31  Op.  Atty. 
Gen.,  225;  see  also  sec.  1441,  Revised  Statutes, 
and  act  of  Aug.  29,  1916,  39  Stat.,  587-588;  and 
see  note  to  Constitution,  Art.  II,  sec.  2,  clause  1, 
as  to  effect  of  pardon.) 


[1914,  Mar.  12.  Alaskan  railroads;  transportation  of  coal;  employment 
of  naval  officers,  etc.]  That  the  President  of  the  United  States  is  hereby  em- 
powered, authorized,  and  directed  to  adopt  and  use  a  name  by  which  to  desig- 
nate the  railroad  or  railroads  and  properties  to  be  located,  owned,  acquired, 
or  operated  under  the  authority  of  this  Act;  to  employ  such  officers,  agents,  or 
agencies,  in  his  discretion,  as  may  be  necessary  to  enable  him  to  carry  out  the 
purposes  of  this  Act;  to  authorize  and  require  such  officers,  agents,  or  agencies 
to  perform  any  or  all  of  the  duties  imposed  upon  him  by  the  terms  of  this  Act; 
to  detail  and  require  any  officer  or  officers  in  the  Engineer  Corps  in  the  Army 
or  Navy  to  perform  service  under  this  Act;  to  fix  the  compensation  of  all  officers, 
agents,  or  employees  appointed  or  designated  by  him;  to  designate  and  cause 
to  be  located  a  route  or  routes  for  a  line  or  lines  of  railroad  in  the  Territory  of 
Alaska  not  to  exceed  in  the  aggregate  one  thousand  miles,  to  be  so  located  as 
to  connect  one  or  more  of  the  open  Pacific  Ocean  harbors  on  the  southern 


1393 


May  8,  1914.  Ft.  3.  S  TA  TUTES  A  T  LARGE, 

coast  of  Alaska  with  the  navigable  waters  in  the  interior  of  Alaska,  and  with 
a  coal  field  or  fields  so  as  best  to  aid  in  the  development  of  the  agricultural  and 
mineral  or  other  resources  of  Alaska,  and  the  settlement  of  the  public  lands 
therein,  and  so  as  to  provide  transportation  of  coal  for  the  Army  and  Navy, 
transportation  of  troops,  arms,  munitions  of  war,  the  mails,  and  for  other 
governmental  and  public  uses,  and  for  the  transportation  of  passengers  and 
property;  to  construct  and  build  a  railroad  or  railroads  along  such  route  or 
routes  as  he  may  so  designate  and  locate  *  *  *. —  (38  Stat.,  305,  306, 
chap.  37.) 

See  acts  of  October  20,  1914,  section  2  (38  Stat.,  741),  and  May  28,  1908,  section  2  (35  Stat., 
424);  see  also  section  3711,  Revised  Statutes. 

[1914,  Apr.  6.  Subsistence  for  travel  outside  District  of  Columbia.]  On  and 
after  July  first,  nineteen  hundred  and  fourteen,  unless  otherwise  expressly 
provided  by  law,  no  officer  or  employee  of  the  United  States  shall  be  allowed 
or  paid  any  sum  in  excess  of  expenses  actually  incurred  for  subsistence  wliile 
traveling  on  duty  outside  of  the  District  of  Columbia  and  away  from  his  desig- 
nated post  of  duty,  nor  any  sum  for  such  expenses  actually  incurred  in  excess 
of  $5  per  day;  nor  shall  any  allowance  or  reimbursement  for  subsistence  be 
paid  to  any  ofiicer  or  employee  in  any  branch  of  the  public  service  of  the  United 
States  in  the  District  of  Colimibia  unless  absent  from  his  designated  post  of 
duty  outside  of  the  District  of  Columbia,  and  then  only  for  the  period  of  time 
actually  engaged  in  the  discharge  of  official  duties. —  (38  Stat.,  318,  chap.  52.) 

See  act  of  August  1,  1914,  section  13  (38  Stat.,  680),  and  see  note  to  section  1566,  Revised 
Statutes. 

[1914,  Apr.  6,  sec.  6.  Efficiency  experts,  restrictions  on  employment  of, 
etc.]  That  no  part  of  any  money  appropriated  in  this  or  any  other  Act  shall  be 
used  for  compensation  or  payment  of  expenses  of  accountants  or  other  experts 
in  inaugurating  new  or  changing  old  methods  of  transacting  the  business  of 
the  United  States  or  the  District  of  Columbia  unless  authority  for  employment 
of  such  services  or  pajonent  of  such  expenses  is  stated  in  specific  terms  in  the  Act 
making  provision  therefor  and  the  rate  of  compensation  for  such  services  or 
expenses  is  specifically  fixed  therein,  or  be  used  for  compensation  of  or  expenses 
for  persons,  aiding  or  assisting  such  accountants  or  other  experts,  unless  the 
rate  of  compensation  of  or  expenses  for  such  assistants  is  fixed  by  officers  or 
employees  of  the  United  States  or  District  of  Columbia  having  authority  to 
do  so,  and  such  rates  of  compensation  or  expenses  so  fixed  shall  be  paid  only 
to  the  person  so  employed. —  (38  Stat.,  335,  chap.  52.) 

[1914,  May  8.  Red  Cross,  loan  of  naval  equipment,  etc.]  That  the  Secretary 
of  War  and  the  Secretary  of  the  Navy  be,  and  are  hereby,  authorized  to  issue, 
each  at  his  discretion  and  under  proper  regulations  to  be  prescribed  by  him, 
out  of  equipment  for  medical  and  other  establishments  on  hand,  belonging  to 
the  Government  and  which  can  be  temporarily  spared,  such  articles  as  may 
appear  to  be  required  for  instruction  and  practice  by  organizations  formed  by 
the  American  National  Red  Cross,  for  the  purpose  of  rendering  aid  to  the  Army 
and  Navy  in  war. 

Sec.  2.  That  the  regulations  prescribed  by  the  Secretary  of  War  or  by 
the  Secretary  of  the  Navy,  in  pursuance  of  the  authority  granted  by  section 

1394 


PL  3.  STATUTES  AT  LARGE.  June  30,  1914. 

one,  shall  provide  for  the  immediate  return  of  the  articles  of  equipment  loaned 
the  American  National  Red  Cross  when  called  for  by  the  authority  wliich  issued 
them;  and  the  said  Secretaries  shall  require  a  bond  in  each  case,  in  double  the 
value  of  the  property,  for  the  care  and  safe-keeping  thereof  and  for  the  return 
of  the  same  when  required. — (38  Stat.,  771,  Res.  No.  15.) 

Seeacteof  April  24,  1912  (37  Stat.,  90-91),  and  section  418,   Revised  Statutes,  and  note 


August  29,  1916  (39  Stat.,  581);  see  also 


thereto. 


[1914,  Jnne  30.  Mileage,  not  paid  if  transportation  furnished.]  That  here- 
after no  mileage  shall  be  paid  to  any  officer  where  Government  transporta- 
tion is  furnished  such  officer. — (38  Stat.,  393,  chap.  130.) 


of  the  Navy.  An  identical  pro\d8ion  was 
contained  in  the  same  act  (38  Stat.,  410), 
under  the  heading,  '•Marine  Corps,"  sub- 
heading, "Mileage." 


See  notes  to  sections  1566  and  1612,  Revised 

Statutes. 
The  above  proviso  was  contained  in  the  act 

cited,  under  "Pay,  Miscellaneous,"  which 

made  appropriation  for  mileage  of  officers 

[1914,  June  30.  Naval  Home,  effects  of  deceased  inmates.]  That  hereafter 
all  moneys  belonging  to  a  deceased  beneficiary  of  the  Naval  Home  or  derived 
from  the  sale  of  his  personal  efi^ects,  not  claimed  by  his  legal  heirs  or  next  of 
kin,  shall  be  deposited  with  the  pay  officer  of  the  Naval  Home,  and  if  any  sum 
so  deposited  has  been  or  shall  hereafter  be  unclaimed  for  a  period  of  two  years 
from  the  death  of  such  beneficiary  it  shall  be  deposited  m.  the  Treasury  to  the 
credit  of  the  naval  pension  fund:  And  'provided  further,  That  the  governor  of 
the  Naval  Home  is  hereby  authorized  and  directed,  under  such  regulations  as 
may  be  prescribed  by  the  Secretary  of  the  Navy,  to  make  diligent  inquiry  in 
every  instance  after  the  death  of  an  inmate  to  ascertain  the  whereabouts  of 
his  heirs  or  next  of  kin:  And  provided  further,  That  claims  may  be  presented 
hereunder  at  any  time  within  five  years  after  moneys  have  been  so  deposited 
in  the  Treasury,  and,  when  supported  by  competent  proof  in  any  case  after 
such  deposit  in  the  Treasury,  shall  be  certified  to  Congress  for  consideration. — 
(38  Stat.,  398,  chap.  130.) 

A  somewhat  different  pro\dsion  on  the  same 
subject  was  contained  in  act  of  August  22, 
1912  (37  Stat.,  335). 

[1914,  June  30.  Naval  Home,  pensions  of  inmates.]  That  the  pensions  of 
beneficiaries  of  the  Naval  Home  shall  be  disposed  of  in  the  same  manner  as 
prescribed  for  iimiates  of  the  Soldiers'  Home,  as  provided  for  in  section  four  of 
the  act  approved  March  third,  eighteen  hundred  and  eighty-three,  under  such 
regulations  as  the  Secretary  of  the  Navy  may  prescribe,  except  that  in  the 
case  of  death  of  any  beneficiary  leaving  no  heirs  at  law  nor  next  of  kin  any 
pension  due  him  shall,  subject  to  the  foregoing  provisions,  escheat  to  the  naval 
pension  fund. — (38  Stat.,  398,  chap.  130.) 

See  note  to  section  4756,  Revised  Statutes,  and 

see  31  Op.  Atty.  Gen.,  268. 
See  act  of  March  3,  1883,  section  4  (22  Stat., 

[1914,  June  30.  Purchase  of  shells  and  projectiles.]  That  hereafter  no  part 
of  any  appropriation  shall  be  expended  for  the  purchase  of  shells  or  projectiles 
for  the  Navy  except  for  shells  or  projectiles  purchased  in  accordance  with  the 
terms  and  conditions  of  proposals  submitted  by  the  Secretary  of  the  Navy  to 
all  the  manufacturers  of  shells  and  projectiles  and  upon  bids  received  in  accord- 

1395 


See  sections  4750,  4810-4818,  Revised  Statutes, 
and  notes  thereto. 


564),  quoted  under  section  4813,  Revised 
Statutes. 


June  30,  1914.  Pt.  S.  STATUTES  AT  LARGE. 

anco  with  the  terms  and  requirements  of  such  proposals:  Provided,  That  this 
restriction  shall  not  apply  to  purchases  of  shells  or  projectiles  of  an  experi- 
mental nature  or  to  be  used  for  experimental  purposes  and  paid  for  from  the 
appropriation  ''Experiments,  Bureau  of  Ordnance." — (38  Stat.,  398-399, 
chap.  130.) 
A  similar  provision  was  contained  in  act  of       See  sections  3718  and  3721,  Revised  Statutes, 


March  4,  1913  (37  Stat.,  896) 


and  notes  thereto. 


[1914,  June  30.  Purchases  abroad,  free  of  duty.]  That  hereafter  the  Sec- 
retary of  the  Navy  is  hereby  authorized  to  make  emergency  purchases  of  war 
material  abroad:  And  provided  further,  That  when  such  purchases  are  made 
abroad,  this  material  shall  be  admitted  free  of  duty. — (38  Stat.,  399,  chap. 130.) 


See  sections    3723,   3725,   and  3728,   Revised 
Statutes,  and  notes  thereto. 


Similar  provisions,  without  the  word  '"here- 
after,"' were  contained  in  acts  of  August 
22,  1912  (37  Stat.,  335),  and  March  4,  1913 
(37  Stat.,  896). 

[1914,  June  30.  Enlisted  men,  daily  average  number.]  That  hereafter  the 
number  of  enlisted  men  of  the  Navy  and  Marine  Corps  provided  for  shall  be 
construed  to  mean  the  daily  average  number  of  enlisted  men  in  the  naval 
service  during  the  fiscal  year. — (38  Stat.,  403,  chap.  130.) 

See  sections  1417  and  1596,  Revised  Statutes,  and  notes  thereto. 

[1914,  June  30.  Acting  chaplains,  appointment,  rank,  and  pay.]  The  grade 
of  acting  chaplain  in  the  Navy  is  hereby  authorized  and  created,  and  hereafter 
original  appointments  shall  be  made  by  the  Secretary  of  the  Navy,  not  to  exceed 
the  number  hereinafter  provided,  in  the  grade  of  acting  chaplains  in  the  Navy 
after  such  examination  as  may  be  prescribed  by  the  Secretary  of  the  Navy,  and 
while  so  serving  acting  chaplains  shall  have  the  rank,  pay,  and  allowances  of 
lieutenant,  junior  grade,  in  the  Navy.  After  three  years'  sea  service  on  board 
ship  each  acting  chaplain  before  receiving  a  commission  in  the  Navy  shall 
establish  to  the  satisfaction  the  Secretary  of  the  Navy  by  examination  by  a 
board  of  chaplains  and  medical  officers  of  the  Navy  his  physical,  mental,  moral, 
and  professional  fitness  to  perform  the  duties  of  chaplain  in  the  Navy,  and  if 
found  so  qualified,  shall  be  commissioned  a  chaplain  in  the  Navy  with  the  rank 
of  lieutenant,  junior  grade.  If  any  acting  chaplain  shall  fail  on  the  examina- 
tions herein  prescribed  he  shall  be  honorably  discharged  from  the  naval  service, 
and  the  appointment  of  any  acting  chaplain  may  be  revoked  at  any  time  in  the 
discretion  of  the  Secretary  of  the  Navy. — (38  Stat.,  403,  chap.  130.) 


See  notes  to  sections  1395-1398,  1410,  and  1556, 
Revised  Statutes. 


Retirement. — An  acting  chaplain  who  fails 
physically  on  examination  for  commission  can 
not  be  retired.     (FUe  15721-22:1,  Mar.  8, 1922.) 

[1914,  June  30.  Acting  chaplains  and  chaplains,  total  number;  rank  and 
pay  of  chaplains.]  Hereafter  the  total  number  of  chaplains  and  acting  chap- 
lains in  the  Navy  shall  be  one  to  each  twelve  hundred  and  fifty  of  the  total 
personnel  of  the  Navy  and  Marine  Corps  as  fixed  by  law,  including  midshipmen, 
apprentice  seamen,  and  naval  prisoners,  and  of  the  total  number  of  chaplains 
and  acting  chaplains  herein  authorized  ten  per  centum  thereof  shall  have  the 
rank  of  captain  in  the  Navy,  twenty  per  centum  the  rank  of  commander, 
twenty  per  centum  the  rank  of  lieutenant  commander,  and  the  remainder  to 
have  the  rank  of  lieutenants  and  lieutenants,  junior  grade. 

1396 


Pt.  3.  STATUTES  AT  LARGE. 


June  30,  1914. 


Naval  chaplains  hereafter  commissioned  from  acting  chaplains  shall  have 
the  rank,  pay,  and  allowances  of  lieutenants,  jmiior  grade,  in  the  Navy  until 
they  shall  have  completed  four  years'  service  in  that  grade,  when,  subject  to 
examination  as  above  prescribed,  they  shall  have  the  rank,  pay,  and  allowances 
of  lieutenant  in  the  Navy,  a  nd  chaplains  with  the  rank  of  lieutenant  shall  have 
at  least  four  years'  service  in  that  grade  before  promotion  to  the  grade  of 
lieutenant  commander,  after  which  service,  chaplains  shall  be  promoted  as 
vacancies  occur  to  the  grades  of  lieutenant  commander,  commander,  and 
captain:  Provided,  That  not  more  than  seven  acting  chaplains  shall  be  com- 
missioned chaplains  in  any  one  year:  And  provided  further,  That  no  provision 
of  this  section  shall  operate  to  reduce  the  rank,  pay,  or  allowances  that  would 
have  been  received  by  any  person  in  the  Navy  except  for  the  passage  of  this 
section,  and  that  all  laws  or  parts  of  laws  inconsistent  with  the  provisions  of 
this  section  be,  and  the  same  are  hereby,  repealed. — (38  Stat.,  404,  chap.  130.) 


See  notes  to  sections  1395-1398  and  1556,  Re- 

\'ised  Statutes. 
See  note  to  section   1457,   Revised  Statutes, 

under   "Distinction  between   'rank'  and 

'grade.'" 


See  note  to  section  1479,  Revised  Statutes, 
under  "Advancement  in  rank  and  pro- 
motion of  chaplains." 


[1914,  June  30.  Naval  supply  account,  law  amended.]  Those  portions  of 
the  acts  of  June  twenty-fifth,  nineteen  hundred  and  ten,  and  March  fourth, 
nineteen  hundred  and  eleven,  which  create  the  ''Naval  supply  account"  under 
the  Bureau  of  Supplies  and  Accounts,  are  hereby  so  modified  and  amended 
that  hereafter  the  appraised  value  of  all  stores,  equipage,  and  supplies  turned 
in  from  ships,  and  ships'  equipage  turned  in  from  yards  or  stations  (except 
salvage),  shall  be  credited  to  the  current  appropriations  concerned,  and  the 
amounts  so  credited  shall  be  available  for  expenditures  for  the  same  pm^poses 
as  the  appropriations  credited ;  and  all  acts  or  parts  of  acts  in  so  far  as  they 
conflict  with  this  provision  are  hereby  repealed. — (38  Stat.,  405,  chap.  130.) 

See  act  of  March  4,  1911  (36  Stat.,  1279),  and  note  thereto. 

[1914,  June  30.  Issue  of  flags  used  for  draping  coffins.]  That  the  Secretary 
of  the  Navy  be  authorized  at  his  discretion  to  issue  free  of  cost  the  national  flag 
(United  States  national  ensign  No.  7)  used  for  draping  the  coffin  of  any  officer 
or  enlisted  man  of  the  Navy  or  IVTarine  Corps  whose  death  occurs  while  in  the 
service  of  the  United  States  Navy  or  Marine  Corps,  upon  request,  to  the  relatives 
of  the  deceased  officer  or  enlisted  man  or  upon  request,  to  a  school,  patriotic 
order,  or  society  to  which  the  deceased  officer  or  man  belonged. — (38  Stat., 
406,  chap.  130.) 

See  note  to  section  418,  Revised  Statutes, 

[1914,  June  30.  Bureau  of  Equipment  abolished.]  The  Bureau  of  Equip- 
ment of  the  Navy  Department  is  hereby  abolished,  and  the  duties  assigned  by 
law  to  that  bureau  shall  be  distributed  among  the  other  bureaus  and  offices 
of  the  Navy  Department  as  herein  provided,  and  all  available  funds  heretofore 
appropriated  for  that  bureau  and  such  civil  employees  of  that  bureau  as  were 
heretofore  authorized  by  law  are  hereby  assigned  and  transferred  to  the  other 
bureaus  and  offices  as  herein  provided:  Provided,  That  nothing  herein  shall  be 
so  construed  as  to  authorize  the  expenditm-e  of  any  appropriation  for  purposes 


1397 


Aug.  1,  1914. 


Ft.  S.  STATUTES  AT  LARGE. 


other  than  those  specifically  provided  by  the  terms  of  the  appropriations  hereto- 
fore and  herein  made. — (38  Stat.,  408,  chap.  130.) 


Temporary  provisions  for  distribution  of  the 
duties,  funds,  and  employees  of  the 
Bureau  of  Equipment  amon^  the  other 
bureaus  and  offices  of  the  Navy  Department 


were  contained  in  the  naval  appropriation 
acts  for  the  fiscal  years  1911-1914. 
See  section  419,   Revised  Statutes,  and  note 
thereto. 


[1914,  June  30.  Overhead  charges,  how  distributed.]  Hereafter  there  shall 
be  charged  against  the  several  appropriations  for  the  support  of  the  Naval 
Establishment  the  overhead  charges  incident  to  upkeep  and  to  industrial  work 
at  navy  yards  and  stations.  The  total  sum  so  charged  shall  be  distributed  in 
accordance  with  the  work  done  in  the  various  yards  and  stations  in  order  that 
the  cost  of  work  may  be  determined. — (38  Stat.,  413-414.) 

See  act  of  March  4,  19]  1  (36  Stat.,  1267),  as  to  direct  and  indirect  charges  being  included 
in  cost  of  work,  and  reported  annually  to  Congress. 

[1914,  July  16,  sec.   5.  Passenger   vehicles,    restrictions    on  purchase  and 

maintenance.]  No  appropriation  made  in  this  or  any  other  Act  shall  be  avail- 
able for  the  pm'chase  of  any  motor-propelled  or  horse-drawn  passenger-carrying 
vehicle  for  the  service  of  any  of  the  executive  departments  or  other  Govern- 
ment establishments,  or  any  branch  of  the  Government  service,  unless  specific 
authority  is  given  therefor,  and  after  the  close  of  the  fiscal  year  nineteen  liun- 
dred  and  fifteen  there  shall  not  be  expended  out  of  any  appropriation  made 
by  Congress  any  sum  for  purchase,  maintenance,  repair,  or  operation  of  motor- 
propelled  or  horse-drawn  passenger-carrying  vehicles  for  any  branch  of  the 
public  service  of  the  United  States  unless  the  same  is  specifically  authorized 
by  law,  and  in  the  estimates  for  the  fiscal  year  nineteen  hundred  and  sixteen 
and  subsequent  fiscal  years  there  shall  be  submitted  in  detail  estimates  for 
such  necessary  appropriations  as  are  intended  to  be  used  for  purchase,  main- 
tenance, repair,  or  operation  of  all  motor-propelled  or  horse-drawn  passenger- 
carrying  vehicles,  specifying  the  sums  required,  the  public  purposes  for  which 
said  vehicles  are  intended,  and  the  ofl3.cials  or  employees  by  whom  the  same 
are  to  be  used.     (38  Stat.,  508-509,  chap.  141.) 

See  acts  of  March  18,  1904,  section  3  (33  Stat.,  142),  and  February  3,  1905,  section  4  (33 

Stat.,  687-688). 

[1914,  Aug.  1,  sec.  12.  Lump-sum  employees,  restrictions  on  compensation.] 
That  it  shall  not  be  lawful  hereafter  to  pay  to  any  person,  employed  in  the 
service  of  the  United  States  under  any  general  or  lump  smn  appropriation, 
any  sum  additional  to  the  regular  compensation  received  for  or  attached  to  any 
employment  held  prior  to  an  appointment  or  designation  as  acting  for  or  in- 
stead of  an  occupant  of  any  other  office  or  employment.  This  provision 
shall  not  be  construed  as  prohibiting  regular  and  permanent  appointments 
by  promotion  from  lower  to  higher  grades  of  employments. — (38  Stat.,  680, 
chap.  223.) 

See  act  of  August  26,  1912,  section  7  (37  Stat.,  626),  and  references  thereunder. 

[1914,  Aug.  1,  sec.  13.  Per  diem  in  lieu  of  subsistence;  estimates  of  appro- 
priations.] That  the  heads  of  executive  departments  and  other  Government 
establishments  are  authorized  to  prescribe  per  diem  rates  of  allowance  not 
exceeding  $4  in  lieu  of  subsistence  to  persons  engaged  in  field  work  or  traveling 


1398 


Pt.  3.  STATUTES  AT  LARGE. 


Oct.  13,  1914. 


See  act  of  April  6,  1914  (38  Stat.,  318),  as  to 
subsistence  allowance. 


on  official  business  outside  of  the  District  of  Columbia  and  away  from  their 
designated  posts  of  duty  when  not  otherwise  fixed  by  law.  For  the  fiscal 
year  nineteen  hundred  and  sixteen  and  annually  thereafter  estimates  of  appro- 
priations from  which  per  diem  allowances  are  to  be  paid  shall  specifically  state 
the  rates  of  such  allowances. — (38  Stat.,  680-681,  chap.  223.) 

See  note  to  section  430,  Revised  Statutes,  as 
to  estimates  of  appropriations. 

[Aug.  25,  1914.  Naval  Petroleum  Reserves,  use  of  proceeds;  fund  created.] 
Any  money  which  may  accrue  to  the  United  States  under  the  provisions  of  this 
Act  from  lands  within  the  Naval  Petroleum  Reserves  shall  be  set  aside  for  the 
needs  of  the  Navy  and  deposited  in  the  Treasury  to  the  credit  of  a  fund  to  be 
known  as  the  Navy  Petroleum  Fund,  which  fund  shall  be  applied  to  the  needs 
of  the  Navy  as  Congress  may  from  time  to  time  direct,  by  appropriation  or 
otherwise.— (38  Stat.,  709,  chap.  287.) 


This  clause  was  part  of  an  act  pro\dding  for 
agreements  to  be  entered  into  by  the  Sec- 
retary of  the  Interior,  with  parties  in 
possession  of  oil  and  gas  lands,  as  to  the 
disposition  of  oil  or  gas  produced  therefrom, 


or  the  proceeds  thereof,  pending  final  deter- 
mination of  title  to  the  land. 
See  act  of  February  25,  1920  (41  Stat.,  437,  et 
seq.);  see  also  section  3689.  Revised  Stat- 
utes, and  note  thereto. 


[1914,  Oct.   13.  Naval  officers,  appointments  to  office  in  Brazil;  leaves  of 

absence.] 

Whereas  the  Republic  of  Brazil  has  recently  established  the  Naval  War  Col- 
lege of  Brazil  at  Rio  de  Janeiro,  Brazil,  and  is  desirous  that  two   com- 
missioned officers  of  the  line  of  the  Navy  of  the  United  States  experienced 
in  naval  war  college  work  be  permitted  to  serve  therein  as  instructors  in 
naval  strategy  and  tactics ;  and 
Whereas  the  United  States  of  America  wishes  to  show  its  friendly  feeling  for  the 
Republic  of  Brazil  by  complying  with  its  desire :  Now,  therefore,  be  it 
Resolved  hy  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America  in  Congress  assembled,  That  the  President  be,  and  he  is  hereby,  author- 
ized, in  his  discretion,  to  grant  leave  of  absence  to  not  more  than  two  com- 
missioned officers  of  the  line  of  the  Navy  of  the  United  States  to  assist  the 
Republic  of  Brazil  as  instructors  in  naval  strategy  and  tactics  in  the  Naval 
War  College  of  Brazil,  in  pursuance  of  an  arrangement  to  be  made  between  such 
officers  so  detailed  and  the  Government  of  Brazil;  and  that  such  officers  while 
absent  on  such  leave  be,  and  they  are  hereby,  authorized  to  accept  from  the 
Government  of  Brazil  the  said  employment  with  compensation  from  the  said 
Government:  Provided,  however,  That  the  permission  so  given  shall  be  held  to 
terminate  at  such  date  as  the  President  may  determine.     To  insure  the  con- 
tinuance of  this  work  during  such  time  as  may  be  desirable,  the  President  may 
have  the  power  of  substitution  in  case  of  the  termination  of  the  detail  of  an 
officer  for  any  cause;  and  that  the  officers,  while  so  absent  in  the  service  of  the 
Republic  of  Brazil,  shall  receive  no  pay  or  allowances  from  the  United  States 
Government.— (38  Stat.,  750,  Res.  No.  48.) 


See  act  of  June  12,  1916  (39  Stat.,  223),  as  to 
Haiti;  act  of  February  11,  1918  (40  Stat., 
437 \  as  to  Dominican  Republic;  and  act 
of  June  5,  1920  (41  Stat.,  1056),  as  to  all 


South  American  Republics;  see  also  note 
to  Constitution,  Article  I,  section  9, 
clause  8. 


1399 


Mar.  3,  1916. 


Pt.  3.  STATUTES  AT  LARGE. 


[1914,  Oct.  20,  sec.  2.  Alaskan  coal  lands;  use  of  for  Navy,  etc.]  That  the 
President  of  the  United  States  shall  designate  and  reserve  from  use,  location, 
sale,  lease,  or  disposition  not  exceeding  five  thousand  one  hundred  and  twenty 
acres  of  coal-bearing  land  in  the  Bering  River  field  and  not  exceeding  seven 
thousand  six  hundred  and  eighty  acres  of  coal-bearing  land  in  the  Matanuska 
field,  and  not  to  exceed  one-half  of  the  other  coal  lands  in  Alaska:  Provided, 
Tluit  the  coal  deposits  in  such  reserved  areas  may  be  mined  under  the  direction 
of  the  President  when,  in  his  opinion,  the  mining  of  such  coal  in  such  reserved 
areas,  under  the  direction  of  the  President,  becomes  necessary,  by  reason  of  an 
insuflicient  supply  of  coal  at  a  reasonable  price  for  the  requirements  of  Govern- 
ment works,  construction  and  operation  of  Government  railroads,  for  the 
Navy,  for  national  protection,  or  for  relief  from  monopoly  or  oppressive  condi- 
tions.—(38  Stat.,  742,  chap.  330.) 


See  acts  of  May  2S,  1908,  section  2  (35  Stat., 
424),  March  12,   1914  (38  Stat.,  305-306), 


and  June  4,  1920  (41  Stat.,  826);  see  also 
section  3711,  Revised  Statutes. 


[1916,  Jan.  28.  Coast  Guard  established;  service  with  Navy;  expenses; 
etc.]  That  there  shall  be  established  in  lieu  of  the  existing  Revenue-Cutter 
Service  and  the  Life-Saving  Service,  to  be  composed  of  those  two  existing 
organizations,  with  the  existing  ofhces  and  positions  and  the  incumbent  officers 
and  men  of  those  two  services,  the  Coast  Guard,  which  shall  constitute  a  part 
of  the  military  forces  of  the  United  States  and  which  shall  operate  under  the 
Treasury  Department  in  time  of  peace  and  operate  as  a  part  of  the  Navy, 
subject  to  the  orders  of  the  Secretary  of  the  Navy,  in  time  of  war  or  when  the 
President  shall  so  direct.  When  subject  to  the  Secretary  of  the  Navy  in  time 
of  war  the  expense  of  the  Coast  Guard  shall  be  paid  by  the  Navy  Department: 
Provided,  That  no  provision  of  this  Act  shall  be  construed  as  giving  any  officer 
of  either  the  Coast  Guard  or  the  Navy,  military  or  other  control  at  any  time 
over  any  vessel,  officer,  or  man  of  the  other  service  except  by  direction  of  the 
President.— (38  Stat.,  800-801,  chap.  20.) 


This  section  was  modified  by  act  of  August  29, 
1916  (39  Stat.,  600);  see  also  act  of  October 


6,  1917  (40  Stat.,  393-394),  and  notes  to 
sections  1492  and  2757,  Re\ised  Statutes. 


[1915,  Mar.  3.  National  Home  for  Disabled  Volunteer  Soldiers;  admission 
to.]  The  following  persons  only  shall  hereafter  be  entitled  to  the  benefits  of 
the  National  Home  for  Disabled  Volunteer  Soldiers,  and  may  be  admitted 
thereto  upon  the  order  of  a  member  of  the  board  of  managers,  namely:  All 
honorably  discharged  officers,  soldiers,  and  sailors  who  served  in  the  regular, 
volunteer,  or  other  forces  of  the  United  States  in  any  war  in  which  the  country 
has  been  or  is  engaged,  including  the  Spanish  American  War,  the  Provisional 
Army  (authorized  by  Act  of  Congress  approved  IVIarch  second,  eighteen  hun- 
dred and  ninety-nine) ,  in  any  of  the  campaigns  against  hostile  Indians,  or  who 
have  served  in  the  Philippines,  in  China,  or  in  Alaska,  or  in  the  Organized 
Militia  or  National  Guard  when  called  into  the  Federal  service  to  enforce  the 
laws,  suppress  insurrection,  or  repel  invasion,  who  are  disabled  by  disease, 
wounds,  or  otherwise  and  have  no  adequate  means  of  support,  and  who  are  not 
otherwise  provided  for  by  law,  and  by  reason  of  such  disability  are  incapable 
of  earning  their  living. — (38  Stat.,  853,  chap.  75;  40  Stat.,  368,  chap.  79.) 


1400 


Pt.  3.  STATUTES  AT  LARGE. 


Mar.  3,  1915. 


This  provision  was  expressly  amended  and  re-       See  sections  4810  et  seq.,  Re\'ised  Statutes,  and 
enacted  to  read  as  above  by  act  of  October  notes  thereto,  as  to  Naval  Home. 

6,  1917  (40  Stat.,  368). 

[1915,  Mar.  3.  Newspapers  and  periodicals,  payment  in  advance.]  News- 
papers and  periodicals  for  the  naval  ser\4ce  (hereafter  subscriptions  may  be 
paid  for  in  advance). — (38  Stat.,  929,  chap.  83.) 

See  act  of  March  4,  1915,  section  5  (38  Stat.,  1049),  as  to  subscriptions  to  "periodicals." 
See  also  section  192,  Revised  Statutes,  and  note  thereto. 

[1915,  Mar.  3.  Chief  of  Naval  Operations,  tenure  and  duties.]  Tliere  shall  be  a 
Chief  of  Naval  Operations,  who  shall  be  an  officer  on  the  active  list  of  the  Navy 
appointed  by  the  President,  by  and  with  the  advice  and  consent  of  the  Senate, 
from  among  the  officers  of  the  line  of  the  Navy  not  below  the  grade  of  captain 
for  a  period  of  four  years,  who  shall,  under  the  direction  of  the  Secretary  of  the 
Navy,  be  charged  with  the  operations  of  the  fleet,  and  with  the  preparation 
and  readiness  of  plans  for  its  use  in  war. 

During  the  temporary  absence  of  the  Secretary  and  the  Assistant  Secretary 
of  the  Navy,  the  Chief  of  Naval  Operations  shall  be  next  in  succession  to  act  as 
Secretary  of  the  Navy.— (38  Stat.,  929,  chap.  83.) 

Amendments  to  this  provision  were  made  by  acts  of  August  29  1916  (39  Stat.,  558),  and 
July  1,  1918  (40  Stat.,  716). 

[1915,  Mar.  3.  Useless  papers  at  navy  yards  and  stations,  disposal  of.] 
That  the  act  "To  authorize  and  provide  for  the  disposal  of  useless  papers  in 
the  executive  departments,"  approved  February  sixteenth,  eighteen  hundred 
and  eighty-nine,  is  hereby  amended  so  that  accumulations  in  the  files  of  navy 
yards  and  naval  stations  that,  in  the  judgment  of  the  Secretary  of  the  Navy, 
are  not  needed  or  useful  in  the  transaction  of  current  business  and  have  no 
permanent  value  or  historical  interest  may  be  disposed  of  by  the  Secretary  of 
the  Navy  by  sale,  after  advertisement  for  proposals  as  waste  paper  if  practi- 
cable, or  if  not  practicable  then  otherwise  as  may  appear  best  for  the  interests  of 
the  Government,  the  said  Secretary  to  make  detailed  report  to  the  Congress  in 
every  case  of  the  papers  destroyed;  Provided  always  That  no  papers  less  than 
two  years  old  from  the  date  of  the  last  indorsement  thereon  shall  be  destroyed 
or  disposed  of  by  the  Secretary  of  the  Navy,  except  in  the  manner  provided  in 
said  act  of  February  sixteenth,  eighteen  hundred  and  eighty-nine. — (38  Stat., 
929-930,  chap.  83.)      ' 

See  act  of  August  22,  1912  (37  Stat.,  329-330),  and  laws  noted  thereunder. 

[1915,  Mar.  3.  Duties  of  engineering  and  construction  officers.]  Hereafter 
officers  who  now  perform  engineering  duty  on  shore  only  and  officers  of  the 
Construction  Corps  shall  be  eligible  for  any  shore  duty  compatible  with  their 
ranlv  and  grade  to  which  the  Secretary  of  the  Navy  may  assign  them, — (38 
Stat.,  930,  chap.  83.) 


A  similar  provision,  without  the  word  "here- 
after," was  contained  in  act  of  June  30, 
1914  (38  Stat.,  394). 

See  notes  to  sections  1390  and  1404,  Revised 
Statutes;  see  also  section  1488,  Revised 
Statutes,  and  note  thereto;  and  see  sec- 
tions 1-6,  Na\y  personnel  act,  March  3, 
1899  (30  Stat.,  1004-1005). 


The  appointment  and  assignment  of  line  officers 
for  engineering  duty  only  were  authorized 
by  acts  of  February  16,  1914,  section  21  (38 

Stat.,  283),  and  August  29,  1916  (39  Stat., 
580). 


1401 


Mar.  3,  1915.  PL  3.  STATUTES  AT  LARGE. 

[1915,  Mar.  3.  Advisory  Committee  for  Aeronautics.]  An  Advisory  Com- 
mit too  for  Aoronautics  is  hereby  established,  and  the  President  is  authorized 
to  appoint  not  to  exceed  twelve  members,  to  consist  of  two  members  from  the 
War  Department,  from  the  office  in  charge  of  military  aeronautics;  two  members 
from  the  Navy  Department,  from  the  office  in  charge  of  naval  aeronautics;  a 
roprosontative  each  of  the  Smithsonian  Institution,  of  the  United  States  Weather 
Bureau,  and  of  the  United  States  Bureau  of  Standards;  together  with  not  more 
than  five  additional  persons  who  shall  be  acquainted  with  the  needs  of  aeronau- 
tical science,  either  civil  or  military,  or  skilled  in  aeronautical  engineering  or  its 
allied  sciences:  Provided,  That  the  members  of  the  Advisory  Committee  for 
Aeronautics,  as  such,  shall  serve  without  compensation:  Provided  further,  That 
it  shall  be  the  duty  of  the  Advisory  Committee  for  Aeronautics  to  supervise 
and  direct  the  scientific  study  of  the  problems  of  flight,  with  a  view  to  their 
practical  solution,  and  to  determine  the  problems  w^hich  should  be  experi- 
mentally attacked,  and  to  discuss  their  solution  and  their  application  to  practical 
questions.  In  the  event  of  a  laboratory  or  laboratories,  either  in  whole  or  in 
part,  being  placed  imder  the  direction  of  the  committee,  the  committee  may 
direct  and  conduct  research  and  experiment  in  aeronautics  in  such  laboratory 
or  laboratories :  And  provided  further,  That  rules  and  regulations  for  the  conduct 
of  the  work  of  the  committee  shall  be  formulated  by  the  committee  and  approved 
by  the  President. 

That  the  sum  of  $5,000  a  year,  or  so  much  thereof  as  may  be  necessary, 
for  five  years  is  hereby  appropriated,  out  of  any  money  in  the  Treasury  not 
other^\^se  appropriated,  to  be  immediately  available,  for  experimental  work 
and  investigations  undertaken  by  the  committee,  clerical  expenses  and  supplies, 
and  necessary  expenses  of  members  of  the  committee  in  going  to,  returning 
from,  and  while  attending,  meetings  of  the  committee:  Provided,  That  an 
annual  report  to  the  Congress  shall  be  submitted  through  the  President,  includ- 
ing an  itemized  statement  of  expenditures. — (38  Stat.,  930,  chap.  83.) 

In  the  act  of  March  4,  1917  (39  Stat.,  1170), 
appropriations  for  this  committee  were 
made  under  the  name  of  the  "National 
Ad\d80iy  Committee  for  Aeronautics,"  and 
the  said  act  consolidated  the  appropriations 
previously  made  for  the  "Advisory  Com- 

[1915,  Mar.  3.  Medals  of  honor.]  The  President  of  the  United  States  is 
hereby  empowered  to  prepare  a  suitable  medal  of  honor  to  be  awarded  to  any 
officer  of  the  Navy,  Marine  Corps,  or  Coast  Guard  who  shall  have  distinguished 
himself  in  battle  or  displayed  extraordinary  heroism  in  the  line  of  his  profes- 
sion.—(38  Stat.,  931,  chap.  83.) 

See  act  of  February  4,  1919  (40  Stat.,  1056);  and  see  section  1407,  Revised  Statutes,  and 
note  thereto. 

[1915,  Mar.  3.  Enlistment  of  minors;  discharge  upon  request  of  parents.] 
That  hereafter  no  part  of  any  appropriation  for  the  naval  service  shall  be 
expended  in  recruiting  seamen,  ordinary  seamen,  or  apprentice  seamen  imless, 
in  case  of  minors,  a  certificate  of  birth  or  a  verified  written  statement  by  the 
parents,  or  either  of  them,  or  in  case  of  their  death  a  verified  written  statement 
by  the  legal  guardian,  be  first  furnished  to  the  recruiting  officer,  showing 
applicant  to  be  of  age  required  by  naval  regulations,  which  shall  be  presented 

1402 


mittee  for  Aeronautics."  Appropriations 
have  continued  to  be  made  under  the  new 
designation  in  subsequent  acts,  to  and  in- 
cluding the  act  of  March  4,  1921  (41  Stat., 
1381). 


PL  3.  STATUTES  AT  LARGE. 


Mar.  3,  1915. 


with  the  application  for  enHstment;  except  in  cases  where  such  certificate  is 
unobtainable,  enhstment  may  be  made  when  the  recruiting  officer  is  convinced 
that  oath  of  applicant  as  to  age  is  credible;  but  when  it  is  afterwards  found, 
upon  evidence  satisfactory  to  the  Navy  Department,  that  recruit  has  sworn 
falsely  as  to  age,  and  is  imder  eighteen  years  of  age  at  the  time  of  enlistment,  he 
shall,  upon  rec{uest  of  either  parent,  or,  in  case  of  their  death,  by  the  legal 
guardian,  be  released  from  service  in  the  Navy,  upon  payment  of  full  cost  of 
first  outfit,  unless,  in  any  given  case,  the  Secretary,  in  his  discretion,  shall 
relieve  said  recruit  of  such  payment. — (38  Stat.,  931,  chap.  83.) 

See  sections  1418,  1419,  and  1624,  article  22, 
Re\Tsed  Statutes,  and  notes  thereto. 


See  acts  of  June  29.  1906  (34  Stat.,  553),  and 
March  3,  1915  (38  Stat.,  932),  as  to  clothing 
outfits. 


[1915,  Mar.  3.  Clothing  outfits,  reissued  on  second  enlistment.]  That  here- 
after the  Secretary  of  the  Navy  is  .authorized  to  issue  a  clothing  outfit  to  all 
enlisted  men  serving  in  their  second  enlistment  who  failed  to  receive  an  outfit 
of  the  value  authorized  by  law  on  their  first  enlistment,  or  who,  having  received 
such  outfit,  were  rec{uired  to  refund  its  value  on  account  of  discharge  prior  to 
expiration  of  enlistment :  Provided  further,  That  the  net  cost  to  the  Government 
of  clothing  outfits  furnished  any  one  enlisted  man  shall  not  exceed  $60. — (38 
Stat.,  932,  chap.  83.) 


A  similar  pro\dsion,  without  the  word  "here- 
after," was  contained  in  act  of  June  30, 1914 
(38  Stat.,  396). 

A  clothing  outfit  on  first  enlistment,  not  to  ex- 
ceed in  value  |45,  was  authorized  by  act  of 
March  1,  1889  (25  Stat.,  781).  See  that  act 
and  note  thereto. 

The  value  of  clothing  outfits  on  first  enlistment 
has  been  increased  from  time  to  time  by 
annual  appropriation  acts.  The  amount 
fixed  by  the  act  of  June  4,  1920  (41  Stat., 
815),  was  "not  to  exceed  $100  each,"  dur- 


ing the  fiscal  year  ending  June  30,  1921. 
The  latter  act  further  pro\dded  that  during 
the  said  fiscal  year  the  value  of  such  outfits 
should  be  charged  to  the  "clothing  and 
small  stores  fund."  See  also  note  to  sec- 
tion 1569,  Revised  Statutes. 

As  to  refund  of  outfits  on  discharge,  see  acts  of 
June  29,  1906  (34  Stat.,  553  and  556),  and 
March  2.  1907  (34  Stat.,  1176). 

As  to  uniform  gratuity  in  the  Naval  Reserve 
Force,  see  note  to  section  1556,  Revised 
Statutes. 


[1915,    Mar.    3.  Involuntary    retirement,    to    create    vacancies,    repealed.] 

Section  nine  of  the  naval  personnel  act  of  ]VIarch  third,  eighteen  hundred  and 

ninety-nine,  entitled,  "An  act  to  reorganize  and  increase  the  efficiency  of  the 

personnel  of  the  Navy  and  Marine  Corps  of  the  United  States,"  be,  and  the 

same  is  hereby,  repealed. — (38  Stat.,  938,  chap.  83.) 

See  act  of  March  3,  1899,  section  9  (30  Stat.,  1006);  see  also  act  of  August  22,  1912  (37  Stat., 
328). 

[1915,  Mar.  3.  Aviators,  pay  of.]  Hereafter  officers  of  the  Navy  and 
Marine  Corps  appointed  student  naval  aviators,  while  lawfully  detailed  for  duty 
involving  actual  flying  in  air  craft,  including  balloons,  dirigibles,  and  aeroplanes, 
shall  receive  the  pay  and  allowances  of  their  rank  and  service  plus  thirty-five 
per  centum  increase  thereof;  and  those  officers  who  have  heretofore  cjualified, 
or  may  hereafter  qualify,  as  naval  aviators,  under  such  rules  and  regulations 
as  have  been  or  may  be  prescribed  by  the  Secretary  of  the  Navy,  shall,  while 
lawfully  detailed  for  duty  involving  actual  flying  in  air  craft,  receive  the  pay 
and  allowances  of  their  rank  and  service  plus  fifty  per  centum  increase  thereof. 
Hereafter  enlisted  men  of  the  Navy  or  Marine  Corps,  while  detailed  for  duty 
involving  actual  flying  in  air  craft,  shall  receive  the  pay,  and  the  permanent 
additions  thereto,  including  allowances,  of  their  rating  and  service,  or  rank  and 


54641°— 22- 


-89 


1403 


Mar.  3,  1915. 


Pi.  A.  STA  TUTES  A  T  LARGE. 


service,  as  the  case  may  bo.  plus  fifty  per  centum  increase  thereof:  Provided., 
That  not  more  tlian  a  yearly  average  of  forty-eight  officers  and  ninety-six 
enlisted  men  of  the  Navy,  and  twelve  officers  and  twenty-four  enlisted  men  of 
the  Marine  Corps,  detailed  for  duty  involving  actual  flying  in  air  craft,  shall 
receive  any  increase  in  pay  while  on  duty  involving  actual  flying  in  air  craft, 
nor  shall  any  oflicor  in  the  Navy  senior  in  rank  to  commander,  nor  any  officer 
in  the  Marino  Corps  senior  in  rank  to  major,  receive  any  increase  in  pay  or  allow- 
ances hj  reason  of  such  detail  or  duty. — (38  Stat.,  939,  chap.  83.) 


By  act  of  July  1,  1918  (40  Stat.,  718),  increased 
allowances  for  axdation  duty  -were  pro- 
hibited. 

This  pro\'ision  was  modified  bv  act  of  August 
29,  1916  (39  Stat.,  582-586).  See  note  to 
section  1556,  Revised  Statutes.  It  was 
followed  by  a  paragraph  authorizing  pay- 
ment of  one  year's  pay  and  double  pension 
to  the  beneficiaries  of  deceased  personnel 


of  the  Na\'y  or  Marine  Corps  whose  death 
resulted  from  wounds  or  disease  resulting 
from  an  aviation  accident;  which  benefits 
were  repealed  by  the  "War  Risk  insurance 
amendment  of  October  6,  1917,  section  312 
(40  Stat.,  408). 
prior  proNdsion  relating  to  pay  of  a^"iato^s, 
.  contained  in  act  of  March  4,  1913  (37  Stat., 
892),  was  superseded  by  the  above. 


[1915,  Mar.  3.  Prior  acts  repealed.]  All  Acts  or  parts  of  Acts  in  so  far  as 
they  are  inconsistent  with  the  provisions  of  this  Act  are  hereby  repealed.— (38 
Stat..  940,  chap.  83.) 

[1915,  Mar.  3.  Naval  reserve  established.] 


This  provision  read  as  follows: 
"There  is  hereby  established  a  United  States 
naval  reser\'e,  which  shall  consist  of  citizens  of 
the  United  States  who  have  been  or  may  be 
entitled  to  be  honorably  discharged  from  the 
Na^-y  after  not  less  than  one  four-year  term  of 
enlistment  or  after  a  term  of  enlistment  during 
minority.  The  naval  reserve  shall  be  organ- 
ized under  the  Bureau  of  NaA'igation  and 
shall  be  governed  by  the  Articles  for  the  Gov- 
ernment of  the  Na^'y  and  by  the  Naval  Regu- 
lations and  Instructions.  \\Tienever  actively 
employed  with  the  Na\'y,  or  whenever  em- 
ployed in  authorized  travel  to  and  fi'om 
prescribed  active  duty  with  the  Navy,  its 
members  shall  be  employed  as  members  of 
the  naval  reserve  and  shall  while  so  em- 
ployed be  held  and  considered  to  be  in  all 
respects  in  the  same  status  as  enlisted  men  of 
the  Na\y  on  active  duty,  except  that  they  shall 
not  be  advanced  in  rating  in  time  of  peace. 
^^■hen  not  actively  employed  with  the  Navy, 
members  of  the  naval  reserve  shall  not  be 
entitled  to  any  pay,  bounty,  gratuity,  or 
pension  except  the  pay  expressly  pro\'ided 
for  members  of  the  naval  reserve  by  the  pro- 
visions of  this  Act,  nor  shall  they  be  entitled 
to  retirement  by  reason  of  such  service  in  the 
naval  reserve. 

"Enlistments  in  the  naval  reser\-e  shall  be 
made  in  the  rating  in  which  last  honorably 
discharged  from  the  Navy  for  a  period  of  four 
>-ears  unless  sooner  discharged  by  competent 
authority.  No  man  shall  be  first  enlisted  in 
the  naval  reserve  after  eight  years  from  the 
date  of  his  last  discharge  from  the  Na\y  nor 
unless  he  be  found  to  be  physically  fit  to  per- 
form the  duties  of  the  rating  in  which  last 
discharged ,  nor  shall  any  man  whose  last  sers-ice 
in  the  Na\'y  was  terminated  by  any  means 
other  than  by  an  honorable  discharge  be  eligible 


for  enlistment  in  the  naval  reserve.  Reenlist- 
ments  in  the  naval  resen-e  shall  be  made  under 
such  regulations  as  may  be  prescribed  by  the 
Secretary  of  the  Nav^^ 

"Enlistments  in  the  naval  reserve  shall  be 
made  in  two  classes.  Class  one  shall  consist  of 
those  men  who  enlist  in  the  naval  reserve 
within  four  months  from  the  date  of  their  last 
honorable  discharge  from  the  Na\y.  Class 
two  shall  consist  of  those  men  who  enlist  in  the 
naval  resen-e  after  foui*  months  and  within 
eight  years  fi-om  the  date  of  their  last  honorable 
discharge  from  the  Na\y. 

"In  addition  to  the  enlistments  in  the  naval 
reserve  above  pro\'ided,  the  Secretary  of  the 
NaA'y  is  authorized  to  transfer  to  the  naval 
reserve  at  the  expiration  of  an  enlistment  any 
enlisted  man  of  the  Navy  who  may,  after  two 
years  from  the  date  of  approval  of  this  Act, 
complete  service  in  the  Navy  of  sixteen,  or 
twenty  or  more  years  and  be  entitled  at  the 
expiration  of  his  enlistment  to  an  honorable 
discharge.  Such  transfers  shall  only  be  made 
upon  voluntary  application  and  in  the  rating 
in  which  then  ser-\-ing,  and  the  men  so  trans- 
ferred shall  be  continued  in  the  naval  reserve 
until  discharged  by  competent  authority. 

"Members  of  the  naval  reserve  of  class  one 
and  men  transferred  to  the  na\'al  reserve  shall 
be  required  to  keep  on  hand  such  part  of  the 
uniform  clothing  outfit  as  may  be  prescribed 
by  the  Secretaiy  of  the  Navy,  and  all  members 
of  the  naval  reser\-e  shall  be  issued  a  distincti^•e 
.badge  or  button  which  may  be  worn  with 
ci\ilian  dress. 

'  'Members  of  class  one  who  have  served  less 
than  eight  years  in  the  Na\'y  shall  be  paid  at 
the  rate  of  S30  per  annum,  and  those  who  have 
served  eight  or  more  years  and  less  than  twelve 
years  in  the  Navy  shall  be  paid  at  the  rate  of  $60 
per  annum  and  those  who  have  served  twelve 


1404 


Ft.  3.  STATUTES  AT  LARGE. 


Mar.  3,  1915. 


or  more  years  in  the  Navy,  $100  per  annum. 
All  members  of  the  naval  reserve  of  class  two 
shall  be  paid  at  the  rate  of  $12  per  annum,  and 
when  first  called  into  active  service  on  board 
a  vessel  of  the  Navy  shall  receive  an  allowance 
for  an  outfit  of  clothing  not  exceeding  $30  in 
value,  to  be  expended  under  regulations 
prescribed  by  the  Secretary  of  the  Navy. 

"Members  of  the  naval  reserve  who  have, 
when  transferred  to  the  naval  reserve,  com- 
pleted service  in  the  Navy  of  sixteen,  or  twenty 
or  more  years  shall  be  paid  at  the  rate  of  one- 
third  and  one-half,  respectively,  of  the  base  pay, 
plus  permanent  additions  thereto,  which  they 
were  receiving  at  the  close  of  their  last  service 
in  the  Navy. 

"Members  of  the  naval  reserve  may,  in  time 
of  peace,  be  required  to  perform  not  less  than 
one  month's  active  service  on  board  a  vessel 
of  the  Navy,  during  each  year  of  service  in  the 
naval  reserve,  and  such  active  service  shall 
not  exceed  two  months  in  any  one  year:  Pro- 
vided, That  the  aforesaid  active  ser\dce  with 
the  Navy  may  be  required  at  any  time  after 
entrance  in  the  naval  reserve.  In  time  of  war 
they  may  be  required  to  perform  active  service 
with  the  Navy  throughout  the  war,  not  to  exceed 
the  term  of  enlistment  in  the  case  of  those 
enlisted  in  the  naval  reserve.  Any  pay  which 
may  be  due  any  member  of  the  naval  reserve 
shall  be  forfeited  when  so  ordered  by  the 
Secretary  of  the  Navy  upon  the  failure,  under 
such  conditions  as  may  be  prescribed  by  the 
Secretary  of  the  Navy,  of  such  man  to  report 
for  muster  and  inspection. 

"Those  members  of  the  naval  reserve  of  class 
one,  and  those  members  who  have  been  trans- 
ferred to  the  naval  reserve,  who  reenlist  in  the 
Navy  within  four  months  from  the  date  of  their 
discharge  from  the  naval  reserve,  shall  not  be 
entitled  to  a  gi'atuity  of  four  months'  pay,  but 
their  reenlistment  in  the  Navy  shall  be  held 
and  considered  to  have  been  made  within  four 
months  from  the  date  of  discharge  from  the 
Navy  for  the  purpose  of  continuous-service 
pay.  The  period  of  time  during  which  mem- 
bers of  the  naval  reserve  were  actively  em- 
ployed with  the  Navy  wliile  enlisted  in  the 
naval  reserve  shall,  for  the  pui'poses  of  retire- 
ment, be  counted  as  active  service  in  the  Navy 
in  the  case  of  those  who  reenlist  in  the  Navy 
after  service  in  the  naval  reserve."  (38  Stat., 
940-941,  chap.  83.) 

This  provision  was  held  to  be  super- 
seded by  the  act  of  August  29,  1916  (39  Stat., 
587-593),  establishing  the  Naval  Reserve 
Force  and  Marine  Corps  Reserve  (23  Comp. 
Dec,  190,  affirmed,  26  Comp.  Dec,  556). 

In  the  comptroller's  decision  first  above 
cited,  it  was  held  that  "the  former  Naval  Re- 
serve having  been  superseded  on  August  29, 
1916,  by  the  Naval  Reserve  Force,"  the  right 

[1915,  Mar.  3.  Retired  enlisted  men,  active  duty.]  The  Secretary  of  the  Navy 
is  authorized  in  time  of  war,  or  when,  in  the  opinion  of  the  President,  war  is 
threatened,  to  call  any  enlisted  man  on  the  retired  list  into  active  service  for 
such  duty  as  he  may  he  able  to  perform.  While  so  employed  such  enlisted 
men  shall  receive  the  same  pay  and  allowances  they  were  receiving  when  placed 
on  the  retired  list:  Provided,  That  enlisted  men  on  the  retired  list  shall  not  be 


to  pay  of  members  of  the  Naval  Reserve  "ter- 
minated August  28,  1916.'; 

In  the  second  decision  cited,  the  comptroller 
held  that  "upon  the  passage  of  the  act  of 
August  29,  1916,  39  Stat.,  587,  the  United 
States  Naval  Reserve  ceased  to  exist  and  a 
new  branch,  the  Naval  Reserve  Force,  was 
created  in  place  thereof." 

The  act  of  August  29,  1916  (39  Stat.,  593), 
provided  that  "All  Acts  or  parts  of  Acts  relating 
to  the  Naval  Reserve  which  are  inconsistent 
v'ith  the  provisions  of  this  Act  relating  to  the 
Naval  Reserve  Force  are  hereby  repealed." 

After  the  comptroller's  decision  first  above 
cited,  Congi-ess,  by  act  of  March  4,  1917  (39 
Stat.,  1174),  enacted  the  following  provision: 
i  "Any  former  member  of  class  one  of  the 
United  States  Naval  Reserve,  established  by 
the  Act  of  March  third,  nineteen  hundred  and 
fifteen,  'An  Act  making  appropriations  for  the 
naval  service  for  the  fiscal  year  ending  June 
thirtieth,  nineteen  hundred  and  sixteen,  and 
for  other  purposes,'  who  shall  have  reenlisted 
in  the  Navy  prior  to  May  first,  nineteen  hun- 
dred and  seventeen,  shall  be  held  and  consid- 
'  ered  to  have  reenlisted  within  four  months 
I  from  the  date  of  discharge  fi'om  the  Navy  for 
the  purpose  of  continuous-service  pay.  And 
any  such  member  of  the  said  Naval  Reserve 
who  was  serving  therein  on  August  twenty- 
I  ninth,  nineteen  hundred  and  sixteen,  shall 
j  upon  his  application  therefor,  any  time  prior  to 
July  firstj  nineteen  hundred  and  seventeen,  be 
enrolled  m  the  Naval  Reserve  Force,  and  any 
such  person  so  enrolled  shall,  for  all  purposes, 
be  considered  as  having  served  continuously 
in  such  Naval  Reserve  Force  since  August 
twenty-ninth,  nineteen  hundred  and  sixteen, 
with  due  credit  for  previous  and  continuous 
service  in  the  Naval  Reserve  in  the  same 
manner  and  to  the  same  effect  as  for  equal 
length  of  service  in  the  Naval  Reserve  Force: 
Provided,  That  no  such  enrolled  person  shall 
receive  any  back  pay  or  allowances  for  any 
period  during  which  he  shall  have  received 
pay  or  allowances,  or  either,  for  service  in  any 
other  branch  of  the  naval  service,  regular  or 
reserve." 

See  note  to  section  1573,  Revised  Statutes, 
as  to  continuous-service  pay  in  the  Navy;  see 
note  to  section  1556,  Revised  Statutes,  as  to 
pay  and  allowances  of  the  Naval  Reserve 
Force;  and  see,  generally,  note  to  section  1569, 
Revised  Statutes,  as  to  pay  of  enlisted  men  of 
the  Navy,  and  note  to  section  1612,  Revised 
Statutes,  as  to  pay  of  enlisted  men  of  the 
Marine  Corps. 

See  act  of  August  29,  1916  (39  Stat.,  587-593), 
and  amendments  noted  thereunder,  as  to  the 
Naval  Reserve  Force  and  Marine  Corps  Re- 
serve. 


1405 


Mar.  3,  1915. 


Pt.  S.  STATUTES  AT  LARGE. 


eligible  for  enlistment  in  or  tnmsfer  to  the  naval  reserve. — (38  Stat.,  941,  chap. 
S3.) 


A  later  provision  for  the  emplo>nment  of  retired 
enlisted  inon  on  active  cluty,  -which  appar- 
ently supcM-setles  this  enactment,  is  con- 
tained in  the  act  of  August  29,  1916  (39 
Stat.,  501). 

Authority  for  the  advancement  of  retired  en- 
listed men  employed  on  active  duty  is 
contained  in  the  act  of  July  1,  1918  (40 
Stat.,  719). 

As  to  status  of  retired  enlisted  men,  and 
whether  subject  to  trial  by  court-martial, 
see  note  to  section  1624,  Revised  Statutes. 


See  notes  above,  as  to  the  naval  reserve;  and 
see  act  of  March  3,  1899,  section  17  (30 
Stat.,  1008),  and  laws  noted  thereunder, 
as  to  retirement  of  enlisted  men. 

See  note  to  section  1569,  Revised  Statutes, 
under  "17.  Retired  enlisted  men;"  and 
see  note  to  section  1622,  Rexdsed  Statutes, 
as  to  retired  enlisted  men  of  the  Marine 
Corps. 


[1916,  Mar.  3.  Grades  of  acting  pay  clerk,  pay  clerk,  and  chief  pay  clerk, 
established.]  The  title  of  paymaster's  clerk  in  the  United  States  Navy  is 
hereby  changed  to  pay  clerk,  and  hereafter  all  pay  clerks  shall  be  warranted 
from  acting  pay  clerks,  who  shall  be  appointed  from  enlisted  men  in  the  Navy 
holding  acting  or  permanent  appointments  as  chief  petty  ofTicers  who  have 
served  at  least  three  years  as  enlisted  men,  at  least  two  years  of  which  service 
must  have  been  on  board  a  cruising  vessel  of  the  Navy.  All  appointments 
as  acting  pay  clerks  shall  be  made  by  the  Secretary  of  the  Navy,  and  all  such 
appointees,  in  addition  to  the  qualifications  above  set  forth,  must  be  citizens 
of  the  United  States.  All  acting  appointments  herein  provided  for  shall  be  made 
permanent  under  regulations  established  by  the  Secretary  of  the  Navy:  Pro- 
vided, That  paymasters'  clerks  now  in  the  Navy  whose  total  service  as  such 
is  less  than  one  year  and  who  are  citizens  of  the  United  States  may,  upon  the 
passage  of  this  act,  be  given  appointments  as  acting  pay  clerks  without  previous 
service  as  enlisted  men:  Provided  further,  That  paymasters'  clerks  now  in 
the  service  and  former  paymasters'  clerks  whose  appointments  have  been 
revoked  within  six  months  next  preceding  the  passage  of  this  act,  who  have 
had  not  less  than  one  year's  actual  service  as  such,  and  who  are  citizens  of  the 
United  States,  may,  upon  the  passage  of  this  act,  be  warranted  as  pay  clerks 
without  previous  service  as  enlisted  men  or  as  acting  pay  clerks:  And  provided 
further,  That  pay  clerks  and  acting  pay  clerks  shall  have  the  same  pay,  allow- 
ances, and  other  benefits  as  are  now  or  may  hereafter  be  allowed  other  warrant 
ofTicers  and  acting  warrant  officers,  respectively. 

That  all  pay  clerks  shall,  after  six  years'  service  as  such,  be  commissioned 
chief  pay  clerks  and  shall  on  promotion  have  the  rank,  pay,  and  allowances 
of  chief  boatswain:  Provided,  That  in  computing  the  six  years'  service  herein 
provided  for  credit  shall  be  given  for  all  service  in  the  Navy  as  pay  clerk, 
acting  pay  clerk,  and  paymasters'  clerk:  Provided  further.  That  paymiasters' 
clerks  now  in  the  Navy  and  former  paymasters'  clerks  whose  appointments 
have  been  revoked  within  six  months  next  preceding  the  passage  of  this  act, 
who  have  had  not  less  than  six  years'  actual  service  as  such,  and  who  are 
citizens  of  the  United  States,  may,  upon  the  passage  of  this  act,  be  commissioned 
as  chief  pay  clerks  without  previous  service  as  enlisted  men,  acting  pay  clerks, 
or  pay  clerks. 

That  the  total  number  of  chief  pay  clerks,  pay  clerks,  and  acting  pay 
clerks  allowed  by  this  act  shall  not  exceed  one  for  each  two  hundred  and  fifty 
enlisted  men  in  the  United  States  Navy  now  or  hereafter  allowed  by  law,  and 


1406 


PL  3.  STATUTES  AT  LARGE. 


Mar.  3,  1915. 


such  chief  pay  clerks,  pay  clerks,  and  acting  pay  clerks  shall  be  assigned  to 
duty  with  pay  officers  under  such  rules  as  the  Secretary  of  the  Navy  may 
prescribe:  Privided,  That  no  person  shall  be  appointed  a  chief  pay  clerk,  pay 
clerk,  or  acting  pay  clerk  under  any  provisions  contained  in  this  act  until  his 
physical,  mental,  moral,  and  professional  qualifications  have  been  satisfactorily 
established  by  examination  before  a  board  of  examining  officers  appointed  by 
the  Secretary  of  the  Navy,  from  officers  of  the  pa}^  corps  when  practicable 
and  according  to  such  regulations  as  he  may  prescribe:  Provided  further, 
That  no  person  shall  be  appointed  a  chief  pay  clerk,  pay  clerk,  or  acting  pay 
clerk  unless  his  accumulated  previous  service  in  the  Army,  Navy,  and  Marine 
Corps,  together  with  his  possible  future  service  prior  to  attaining  the  age  of 
sixty-two  years,  will  amount  to  at  least  thirty  years,  except  that  this  proviso 
shall  not  apply  to  such  persons  as  were  serving  in  the  Navy  as  paymasters' 
clerks  during  the  period  from  September  first,  nineteen  hundred  and  thirteen, 
to  October  thirty-first,  nineteen  hundred  and  thirteen. — (38  Stat.,  942-943, 
chap.  83.) 


As  to  pay  of  warrant  officers  and  commissioned 
warrant  officers,  see  note  to  section  1556, 
ile^dsed  Statutes;  as  to  allowances  of  offi- 
cers, see  note  to  section  1558,  Revised  Stat- 


utes. See,  generally,  sections  1386-1388, 
and  1405,  fee\'ised  Statutes,  and  notes 
thereto. 


[1915,  Mar.  3.  Assistant  paymasters,  appointment  from  chief  pay  clerks 
and  pay  clerks.]  That  the  limitation  as  to  age  contained  in  section  thirteen 
hundred  and  seventy-nine  of  the  Revised  Statutes  of  the  United  States,  relating 
to  appointment  of  assistant  paymasters  in  the  United  States  Navy,  shall  not 
apply  to  chief  pay  clerks  and  pay  clerks  appointed  under  the  provisions  of  this 
Act,  who  must  be  between  the  ages  of  twenty-one  and  thirty-five  years  at  the 
time  of  appointment  as  assistant  paymasters  in  the  United  States  Navy:  Pro- 
vided, That  this  shall  not  be  construed  as  giving  any  preference  in  said  appoint- 
ment of  assistant  paymasters  to  said  chief  pay  clerks  and  pay  clerks  except  as 
to  the  limitation  of  age. — (38  Stat.,  943,  chap.  83.) 

See  section  1379,  Re\ised  Statutes,  and  note  thereto. 

[1915,  Mar.  3.  Paymasters'  clerks ;  laws  repealed.]  That  sections  thirteen 
hundred  and  eighty-six,  thirteen  hundred  and  eighty-seven,  and  thirteen 
hundred  and  eighty-eight  of  the  Revised  Statutes,  and  all  Acts  and  parts  of 
Acts,  so  far  as  they  are  in  conflict  with  the  provisions  of  this  Act,  be,  and  the 
same  are  hereby,  repealed. — (38  Stat.,  943.  chap.  83.) 

[1915,  Mar.  3.  Transportation  of  fuel;  charges  excessive.]  That  hereafter, 
when  the  lowest  obtainable  cost  of  transportation  of  fuel  between  the  Atlantic 
and  Pacffic  coasts  of  the  United  States  by  merchant  carriers  is  considered  ex- 
cessive, the  appropriation  "Fuel  and  transportation"'  may  be  charged  with  the 
expense  of  pay,  transportation,  shipping,  and  subsistence  of  civilian  officers 
and  crews,  and  such  other  incidental  expenses  as  can  not  be  paid  from  other 
appropriations,  of  naval  auxiliaries  engaged  in  the  transportation  of  fuel: 
Provided,  That  the  appropriation  ''Maintenance  of  naval  auxiliaries"  is  in- 
sufficient therefor. — (38  Stat.,  944,  chap.  83.) 


1407 


Mar.  4.  1915. 


Pt.3.  STATUTES  AT  LARGE. 


See  sections  3718  and  3728,  Revised  Statutes, 
and  notoa  Ihoroto. 
Transportation  in  foreign  vessels. — 
Coal  for  the  use  of  the  Navy  may,  under  ex- 
isting: law.  1)0  transported  hy  soa  from  ports  on 
tho  Atlantic  to  ports  on  the  Tacific  coast  of  the 
I'nitod  States  in  vessels  of  foreign  registry 
■where  suflicient  American  vessels  for  that  pur- 

{>ose  can  not  be  had,  or  where  the  charges  made 
)V  such  vessels  are  excessive  and  unreasonable. 
(26  ()]).  Attv.  Gen..  415,  Oct.  3,  1917.) 

The  act  of  April  2S,  1904  (33  Stat.,  518), 
relating  to  transportation  of  coal  and  other  sup- 
plies for  the  Navy,  contemplates  the  possibility 
that  it  may  be  impossible  to  comply  with  its 
terms  ^\-ithout  exposing  the  Government  to 
exorbitant  and  unreasonable  expense;  in  such 
case  the  act  does  not  require  that  transporta- 
tion be  in  American  vessels.  (26  Op.  Atty. 
Gen..  415.) 

Section  4347,  Revised  Statutes,  and  the  act 
of   February  17,  1898   (30   Stat.,  248),  which 

[1915,  Mar.  3.  Assistant  naval  constructors,  appointment  from  line  offi- 
cers.] Officers,  of  the  line  of  the  Navy  who  have  had  not  less  than  three  years' 
service  in  the  grade  of  ensign  and  have  taken  or  are  taking  satisfactorily  a 
post-graduate  course  in  naval  architecture  under  orders  from  the  Secretar}^  (^f 
the  Navy  shall  be  eligible  for  transfer  to  the  grade  of  assistant  naval  constructor: 
Provided,  That  there  shall  not  be  more  than  five  such  transfers  in  any  one 
calendar  year  and  that  the  total  increase  in  the  number  of  naval  constructors 
and  assistant  naval  constructors  by  reason  of  such  transfers  shall  not  exceed 
twenty-four.— (38  Stat.,  945,  chap.  83.) 


prohibit  the  transportation  of  merchandise 
from  one  port  to  another  in  vessels  owned  by 
foreigners,  do  not  apply  t©  property  owned  by 
the  Government.     (26  Op.  Atty.  Gen.,  415.) 

Tonnage  tax. — A  British  steamship  which 
transported  coal  belonging  to  the  Navy,  from 
Newport  News  to  San  Francisco,  and  had  no 
other  cargo,  was  not  a  vessel  having  on  board 
goods,  wares,  and  merchandise  within  the 
meaning  of  section  4219,  Revised  Statutes,  and 
amendments  tliereto,  imposing  a  tonnage  tax 
upon  foreign  vessels.    (2i)  Op.  Atty.  Gen.,  426.) 

Coal  imported  for  the  Navy;  duties. — • 
Coal  imported  for  the  use  of  the  NaA^^  is  subject 
to  the  duties  prescribed  bv  paragraph  415  of 
the  act  of  July  24,  1897  (30  Stat.,  190),  not^nth- 
standing  the  coal  is  imported  by  the  Na-vy  De- 
partment and  the  duties  wdll  have  to  be  paid 
from  the  aj^propriations  of  that  Department 
(26  Op.  Atty.  Gen.,  466.) 


See  section  1403,  Revised  Statutes,  and  note 
thereto,  as  to  appointment  of  assistant 
naval  constructors. 


See  section  1402,  Re\dsed  Statutes,  and  note 
thereto,  as  to  the  number  of  officers  in  the 
Construction  Corps. 


[1915,  Mar.  3.  Pay,  Marine  Corps,  sea  duty.]  That  the  increased  compen- 
sation as  now  fixed  by  law  for  the  Marine  Corps  for  foreign  shore  service  shall 
hereafter  be  paid  to  the  officers  and  enlisted  men  of  that  corps  while  on  sea  duty, 
in  the  same  manner  and  under  the  same  conditions  as  is  provided  by  the  act 
approved  M.aj  thirteenth,  nineteen  hundred  and  eight,  for  officers  of  the  Navy. — 
(38  Stat.,  948,  chap.  83.) 

See  act  of  May  13,  1908  (35  Stat.,  128),  and  see  notes  to  sections  1556,  1571,  and  1612,  Re- 
vised Statutes. 

[1916,  Mar.  3.  Equipment  outfits,  naval  vessels;  appropriation  chargeable.] 
Increase  of  the  Navy,  Equipment:  The  unexpended  balance  on  June  thir- 
tieth, nineteen  hundred  and  fifteen,  shall  be  transferred  to  appropriation 
"Increase  of  the  Navy,  construction  and  machinery,"  and  beginning  with  July 
first,  nineteen  hundred  and  fifteen,  equipment  outfits  shall  be  charged  to  ap- 
propriation "Increase  of  the  Navy,  construction  and  machinery." — (38  Stat., 
952,  chap.  83.) 

[1915,  Mar.  4,  sec.  5.  Subscriptions  to  periodicals,  payment  in  advance.] 
That  hereafter  subscriptions  to  periodicals,  which  have  been  certified  in  writing 
by  the  respective  heads  of  the  executive  departments  or  other  Government 


1408 


Pt.  3.  STATUTES  AT  LARGE.  Mar.  4,  1915. 

establisliments  to  be  roqiiired  for  official  use,  may  be  paid  in  advance  from 
appropriations  available  therefor. —  (38  Stat.,  1049,  chap.  141.) 

See  act  of  March  3,  1915  (38  Stat.,  929);  see  also  section  192,  Re\i8ed  Statutes,  and  note 
thereto. 

[1915,  Mar.  4,  sec.  6.  Civil  employees,  etc.,  number  of.]  The  officers  and 
employees  of  the  United  States  whose  salaries  are  herein  appropriated  for  are 
established  and  shall  continue  from  year  to  year  to  the  extent  they  shall  be 
appropriated  for  by  Congress.— (38  Stat.,  1049,  chap.  141.) 


See  note  to  section  416,  Re\'ised  Stattites. 
This  section  was  part  of  the  legislative,  execu- 


tive, and  judicial  appropriation  act  for  the 
fiscal  vear  1916. 


[1915,  Mar.  4.  Transfer  of  appropriations  between  bureaus  and  departments; 
supplies  and  services.]  That  hereafter  when  one  bureau  of  the  War  or  Navy 
Departments  procures  by  purchase  or  manufacture  stores  or  material  of  any 
kind  or  performs  any  service  for  another  bureau  of  such  departments  the 
funds  of  the  bureau  or  department  for  which  the  stores  or  material  are  to  be 
procured  or  the  service  performed  may  be  placed  subject  to  the  requisition  of 
the  bureau  or  department  making  the  procurement  or  performing  the  service 
for  direct  expenditure  by  it:  Provided,  That  when  the  stores  being  procured 
are  for  current  issue  during  the  year  stores  of  equal  value  may  be  issued  from 
stock  on  hand  in  place  of  any  of  those  aforesaid. —  (38  Stat.,  1084,  chap.  143.) 


See  act  of  May  21,  1920,  section  7  (41  Stat., 
613),  which  contains  pro^'isions  similar  to 
the  foregoing,  applicable  to  all  depart- 
ments and  bureaus  of  the  Government ;   see 


also  acts  of  August  24,  1912  (37  Stat.,  589), 
and  July  11,  1919  (41  Stat.,  132);  and  see 
sections  418,  419,  1135,  1437,  and  3676, 
Re\-ised  Statutes,  and  notes  thereto. 


[1915,  Mar.  4.  National  forests;  use  of  earth,  stone,  and  timber  by  Navy.] 
That  hereafter  the  Secretary  of  Agricultiu"e,  under  regulations  to  be  prescribed 
by  him,  is  hereby  authorized  to  permit  the  Navy  Department  to  take  from 
the  national  forests  such  earth,  stone,  and  timber  for  the  use  of  the  Navy  as 
may  be  compatible  with  the  administration  of  the  national  forests  for  the 
purposes  for  which  they  are  established,  and  also  in  the  same  manner  to  permit 
the  taking  of  earth,  stone,  and  timber  from  the  national  forests  for  the  con- 
struction of  Government  railways  and  other  Government  works  in  Alaska: 
Provided,  That  the  Secretary  of  Agriculture  shall  submit  with  his  annual 
estimates  a  report  of  the  quantity  and  market  value  of  earth,  stone,  and  timber 
furnished  as  herein  provided.— (38  Stat.,  1100-1101,  chap.  144.) 

[1915,  Mar.  4,  sec.  4.  Appropriations,  unexpended  balances;  reappropria- 
tion.]  That  the  reappropriation  and  diversion  of  the  unexpended  balance  of 
any  appropriation  to  a  purpose  other  than  that  for  which  it  was  originally 
made  shall  be  construed  and  accounted  hereafter  as  a  new  appropriation  and 
the  imexpended  balance  shall  be  reduced  by  the  sum  proposed  to  be  so 
diverted.— (38  Stat.,  1161,  chap.  147.) 

See  section  3690,  Re\T.sed  Statutes. 

[1915,  Mar.  4,  sec.  5.  Exchange  of  typewriters,  adding  machines,  etc.; 
report  to  Congress.]  That  the  executive  departments  and  other  Government 
establishments  and  all  branches  of  the  public  service  may  hereafter  exchange 
typewriters,  adding  machines,  and  other  similar  labor  saving  devices  in  part 
payment  for  new  machines  used  for  the  same  purpose  as  those  proposed  to  be 

1409 


Apr.  27,  1916.  Pt.  3.  STATUTES  AT  LARGE. 

exchanged.  There  shall  be  submitted  to  Congress,  on  the  first  day  of  the 
session  following  the  close  of  each  fiscal  year,  a  report  showing,  as  to  each  ex- 
change hereunder,  the  make  of  the  article,  the  period  of  its  use,  the  allowance 
therefor,  and  the  article,  make  thereof,  and  price,  including  exchange  value, 
paid  or  to  be  paid  for  each  article  procured  through  such  exchange. — (38  Stat., 
1161,  chap.  147.) 


See  sections  418,  429,  and  3718,  ReA-ised  Stat- 
utes, and  notes  thereto;  and  see  acts  of 


June  5,  1020,  section  7  (41  Stat.,  947),  and 
March  ■^,   1921  (41  Stat.,  1265-126G). 


[1916,  Apr.  27.  Medal  of  honor  roll ;  special  pension.]  That  there  is  hereby 
established  in  the  War  Department  and  Navy  Department,  respectively,  a  roll 
designated  as  "the  Army  and  Navy  medal  of  honor  roll."  Upon  written 
application  made  to  the  Secretary  of  the  proper  department,  and  subject  to 
the  conditions  and  requirements  hereinafter  contained,  the  name  of  each  sur- 
viving person  who  has  served  in  the  military  or  naval  service  of  the  United 
States  in  any  war,  who  has  attained  or  shall  attain  the  age  of  sixty-five  years, 
and  who  has  been  awarded  a  medal  of  honor  for  having  in  action  involving 
actual  conflict  with  an  enemy  distinguished  himself  conspicuously  by  gallantry 
or  intrepidity,  at  the  risk  of  his  life,  above  and  beyond  the  call  of  duty,  and 
who  was  honorably  discharged  from  service  by  muster  out,  resignation,  or 
otherwise,  shall  be,  by  the  Secretary  of  the  proper  department,  entered  and 
recorded  on  said  roll.  Applications  for  entry  on  said  roll  shall  be  made  in  such 
form  and  under  such  regulations  as  shall  be  prescribed  by  the  War  Department 
and  Navy  Department,  respectively,  and  proper  blanks  and  instructions  shall 
be,  by  the  proper  Secretary,  furnished  without  charge  upon  request  made  by 
any  person  claiming  the  benefits  of  this  Act. — (39  Stat.,  53,  chap.  88.) 

Sec.  2.  That  it  shall  be  the  duty  of  the  Secretary  of  War  and  of  the  Sec- 
retary of  the  Navy  to  carry  this  Act  into  effect  and  to  decide  whether  each 
applicant,  under  this  Act,  in  his  department  is  entitled  to  the  benefit  of  this 
Act.     If  the  official  award  of  the  medal  of  honor  to  the  applicant,  or  the  official 
notice  to  him  thereof,  shall  appear  to  show  that  the  medal  of  honor  was  awarded 
to  the  applicant  for  such  an  act  as  is  required  by  the  provisions  of  this  Act,  it 
shall  be  deemed  sufficient  to  entitle  the  applicant  to  such  special  pension  with- 
out fm-ther  investigation.     Otherwise  all  official  correspondence,  orders,  reports, 
recommendations,  requests,  and  other  evidence  now  on  file  in  any  public  office 
or  department  shall  be  considered.     A  certificate  of  service  and  of  the  act  of 
heroism,  gallantry,  bravery,  or  intrepidity  for  which  the  medal  of  honor  was 
awarded,  and  of  enrollment  under  this  Act,  and  of  the  right  of  the  special 
pensioner  to  be  entitled  to  and  to  receive  the  special  pension  herein  granted, 
shall  be  furnished  each  person  whose  name  shall  be  so  entered  on  said  roll.     The 
Secretary  of  War  and  the  Secretary  of  the  Navy  shall  deliver  to  the  Commissioner 
of  Pensions  a  certified  copy  of  each  of  such  of  said  certificates  as  he  may  issue, 
as  aforesaid,  and  the  same  shall  be  full  and  sufficient  authority  to  the  Commis- 
sioner of  Pensions  for  the  payment  by  him  to  the  beneficiary  named  in  each 
such  certificate  the  special  pension  herein  provided  for. —  (39  Stat.,  54,  chap.  88.) 
Sec.  3.  That  each  such  surviving  person  whose  name  shall  have  been 
entered  on  said  roll  in  accordance  with  this  Act  shall  be  entitled  to  and  shall 
receive  and  be  paid  by  the  Commissioner  of  Pensions  in  the  Department  of  the 

1410 


Ft.  3.  STATUTES  AT  LARGE.  June  3,  1916 


Interior,  out  of  any  moneys  in  the  Treasury  of  the  United  States  not  otherwise 
appropriated,  a  special  pension  of  $10  per  month  for  life,  payable  quarter 
yearly.  The  Commissioner  of  Pensions  shall  make  all  necessary  rules  and 
regulations  for  making  payment  of  such  special  pensions  to  the  beneficiaries 
thereof. 

Such  special  pension  shall  begin  on  the  day  that  such  person  shall  file  his 
application  for  enrollment  on  said  roll  in  the  office  of  the  Secretary  of  War  or  of 
the  Secretary  of  the  Navy  after  the  passage  and  approval  of  this  Act,  and  shall 
continue  during  the  life  of  the  beneficiary. 

Such  special  pension  shall  not  deprive  any  such  special  pensioner  of  any 
other  pension  or  of  any  benefit,  right,  or  privilege  to  which  he  is  or  may  here- 
after be -entitled  under  any  existing  or  subsequent  law,  but  shall  be  in  addition 
thereto. 

The  special  pension  allowed  under  this  Act  shall  not  be  subject  to  any 
attachment,  execution,  levy,  tax,  lien,  or  detention  imder  any  process  what- 
ever.— (39  Stat.,  54,  chap.  88.) 

Sec.  4.  That  in  case  any  person  has  been  awarded  two  or  more  medals  of 
honor,  he  shall  not  be  entitled  to  and  shall  not  receive  more  than  one  such 
special  pension. 

Rank  in  the  service  shall  not  be  considered  in  applications  filed  hereunder. — 
(39  Stat.,  54,  chap.  88.) 

As  to  medals  of  honor,  see  note  to  section  1407,  Revised  Statutes. 

[1916,  Apr.  27.  Attorneys  before  departments;  advertising.]  That  it  shall 
be  unla\\^ul  for  any  person,  firm,  or  corporation  practicing  before  any  depart- 
ment or  office  of  the  Government  to  use  the  name  of  any  Member  of  either 
House  of  Congress  or  of  any  officer  of  the  Government  in  advertising  the  said 
business. — (39  Stat.,  54,  chap.  89.) 

[1916,  May  10,  sec.  6.  Double  salaries  restricted.]  That  unless  othermse 
specially  authorized  by  law,  no  money  appropriated  by  this  or  any  other  Act 
shall  be  available  for  payment  to  any  person  receiving  more  than  one  salary 
when  the  combined  amount  of  said  salaries  exceeds  the  sum  of  $2,000  per 
annum,  but  this  shall  not  apply  to  retired  officers  or  enlisted  men  of  the  Army, 
Navy,  Marine  Corps,  or  Coast  Guard,  or  to  officers  and  enlisted  men  of  the 
Organized  Militia  and  Naval  Militia  in  the  several  States,  Territories,  and  the 
District  of  Columbia:  Provided,  That  no  such  retired  officer,  officer,  or  enlisted 
man  shall  be  denied  or  deprived  of  any  of  his  pay,  salary,  or  compensation  as 
such,  or  of  any  other  salary  or  compensation  for  services  heretofore  rendered, 
by  reason  of  any  decision  or  construction  of  said  section  six. — (39  Stat.,  120, 
chap.  117;  39  Stat.,  582,  chap.  417.) 


See  notes  to  sections  1763  and  1765,  Revised 
Statutes. 


This  section  was  expressly  amended  and  reen- 
acted  to  read  as  above  by  act  of  August  29, 
1916  (39  Stat.,  582). 

[1916,  June  3,  sec.  35.  Enlisted  men,  civil  employment.]  Hereafter  no 
enlisted  man  in  the  active  service  of  the  United  States  in  the  Army,  Navy,  and 
Marine  Corps,  respectively,  whether  a  noncommissioned  officer,  musician,  or 
private,  shall  be  detailed,  ordered,  or  permitted  to  leave  his  post  to  engage  in 
any  pursuit,  business,  or  performance  in  civil  life,  for  emolument,  hii'e,  or 

1411 


June  3,  1916. 


PL  S.  STATUTES  AT  LARGE. 


Employment  of  enlisted  men  at  navy  yards, 
etc.,  during  repairs  to  vessels:  See  act  of 
August  22,  1912  (37  Stat.,  355). 


othcnviso,  a\  lion  the  same  shall  interfere  with  the  customary  employment  and 
regular  engagement  of  local  civilians  in  the  respective  arts,  trades,  or  profes- 
sions.—(39  Stat.,  188-189,  chap.  134.) 

Navy  bands,  competition  with  civilians:  See 

act  of  May  13,  1908  (35  Stat.,  153.) 
Marine  Band,  competition  with  civilians:  See 

act  of  August  29,  191G  (39. Stat.,  612). 

[1916,  June  3,  sec.  74.  National  Guard  officers,  appointed  from  naval  and 
reserve  officers,  etc.]  Persons  hereafter  commissioned  as  officers  of  the  National 
Guard  shall  not  be  recognized  as  such  under  any  of  the  provisions  of  this  Act 
unless  they  shall  have  been  selected  from  the  following  classes,  and  shall  have 
taken  and  subscribed  to  the  oath  of  office  prescribed  in  the  preceding  section 
of  this  Act;  officers  or  enlisted  men  of  the  National  Guard;  officers,  active  or 
retired,  reserve  officers,  and  former  officers  of  the  Ai'my,  Navy,  or  Marine 
Corps,  enlisted  men  and  former  enlisted  men  of  the  Army,  Navy,  or  Marine 
Corps  who  have  received  an  honorable  discharge  therefrom;  graduates  of  the 
United  States  Military  and  Naval  Academies;  and  graduates  of  schools,  col- 
leges, universities,  and  officers'  framing  camps,  where  they  have  received 
military  instruction  under  the  supervision  of  an  officer  of  the  Regular  Army 
who  certified  their  fitness  for  appomtment  as  commissioned  officers;  and  for 
the  technical  branches  or  Staff  Corps  and  departments,  such  other  civilians  as 
may  be  specially  qualified  for  duty  therein. — (39  Stat.,  201-202,  chap.  134, 
41  Stat.,  781-782,  chap.  227.) 

This  section  was  expressly  amended  and  reenacted  to  read  as  above  by  act  of  June  4,  1920, 
section  41  {41  Stat.,  781-782). 

[1916,  June  3,  sec.  80.  Leave  of  absence  employees  belonging  to  National 
Guard.]  All  officers  and  employees  of  the  United  States  and  of  the  District  of 
Columbia  who  shall  be  members  of  the  National  Guard  shall  be  entitled  to 
leave  of  absence  from  their  respective  duties,  without  loss  of  pay,  time,  or 
efficiency  rating,  on  all  days  durmg  which  they  shall  be  engaged  in  field  or 
coast-defense  framing  ordered  or  authorized  under  the  provisions  of  this  Act. — 
(39  Stat.,  203,  chap.  134.) 

See  act  of  May  12,  1917  (40  Stat.,  72),  as  to  employees  belonging  to  Officers'  Reserve  Corps. 

[1916,  June  3,  sec.  113.  Rifle  practice.]  The  Secretary  of  War  shall 
annually  submit  to  Congress  recommendations  and  estimates  for  the  establish- 
ment and  maintenance  of  indoor  and  outdoor  rifle  ranges,  under  such  a  com- 
prehensive plan  as  will  ultimately  result  in  providing  adequate  facilities  for 
rifle  practice  in  all  sections  of  the  country.  And  that  all  ranges  so  established 
and  all  ranges  which  may  have  already  been  constructed,  in  whole  or  in  part, 
with  funds  provided  by  Congress  shall  be  open  for  use  by  those  in  any  branch 
of  the  military  or  naval  service  of  the  United  States  and  by  all  able-bodied 
males  capable  of  bearing  arms,  under  reasonable  regulations  to  be  prescribed 
by  the  controlling  authorities  and  approved  by  the  Secretary  of  War.  That 
the  President  may  detail  capable  officers  and  noncommissioned  officers  of  the 
Regular  Army  and  National  Guard  to  duty  at  such  ranges  as  instructors  for  the 
purpose  of  training  the  citizenry  in  the  use  of  the  military  arm.  Where  rifle 
ranges  shall  have  been  so  established  and  instructors  assigned  to  duty  thereat. 


1412 


Pt.  3.  STATUTES  AT  LARGE. 


June  3,  1916. 


the  Secretary  of  War  shall  be  authorized  to  provide  for  the  issue  of  a  reasonable 
number  of  standard  military  rifles  and  such  quantities  of  ammunition  as  may 
be  available  for  use  in  conducting  such  rifle  practice. —  (39  Stat.,  211,  chap.  134.) 

By  annual  appropriation  acts  for  the  support  of 
the  Army  appropriations  are  made  "for  the 
purpose  of  furnishing  a  national  trophy 
and  medals  and  other  prizes  to  be  provided 
and  contested  for  annually,  under  such 
regulations  as  may  be  prescribed  by  the 
Secretary  of  War,  said  contest  to  be  open 
to  the  Army,  Navy,  Marine  Corps,  and  the 
National  Giuard  or  Organized  Militia  of  the 
several  States,  Territories,  and  of  the  Dis- 
trict of  Columbia,  members  of  rifle  clubs, 


and  civilians,  and  for  the  cost  of  the  trophy, 
prizes,  and  medals  herein  provided  for, 
and  for  the  promotion  of  rifle  practice 
thi'oughout  the  United  States,  including 
the  reimbiu-sement  of  necessaiy  expenses 
of  members  of  the  National  Board  for  the 
promotion  of  Rifle  Practice,  to  be  expended 
for  the  purposes  hereinbefore  prescribed, 
under  the  direction  of  the  Secretary  of 
War."     (Act  June  5,  1920,  41  Stat.,  971.) 


[1916,  June  3,  sec.  120.  Procurement  of  supplies  in  time  of  war,  etc.]  The 
President,  in  time  of  war  or  when  war  is  imminent,  is  empowered,  through  the 
head  of  any  department  of  the  Government,  in  addition  to  the  present  author- 
ized methods  of  purchase  or  procurement,  to  place  an  order  with  any  individual, 
firm,  association,  company,  corporation,  or  organized  manufacturing  industry 
for  such  product  or  material  as  may  be  required  and  which  is  of  the  nature  and 
kind  usually  produced  or  capable  of  being  produced  by  such  individual,  firm, 
company,  association,  corporation,  or  organized  manufacturing  industry. 

Compliance  with  all  such  orders  for  products  or  material  shall  be  obligatory 
on  any  individual,  firm,  association,  company,  corporation,  or  organized  manu- 
facturing industry  or  the  responsible  head  or  heads  thereof  and  shall  take 
precedence  over  all  other  orders  and  contracts  theretofore  placed  with  such 
individual,  firm,  company,  association,  corporation,  or  organized  manufacturing 
industry,  *  *  *  and  any  individual,  firm,  company,  association,  or  corpo- 
ration, or  organized  manufacturing  industry,  or  the  responsible  head  or  heads 
thereof,  failing  to  comply  with  the  provisions  of  this  section  shall  be  deemed 
guilty  of  a  felony,  and  upon  conviction  shall  be  punished  by  imprisonment  for 
not  more  than  three  years  and  by  a  fine  not  exceeding  $50,000. 

The  compensation  to  be  paid  to  any  individual,  firm,  company,  association, 
corporation,  or  organized  manufacturing  industry  for  its  products  or  material, 
or  as  rental  for  use  of  any  manufacturing  plant  while  used  by  the  United  States, 
shall  be  fau-  and  just.— (39  Stat.,  213,  chap.  134.) 

The  omitted  portion  of  this  section  related  in  the  procurement  by  the  President  of  ships 

terms  to  the  Arm V.  and  material,  etc.,  for  the  Navy  in  time 

See  act  of  March  4,  1917  (39  Stat.,  1192-1193),  of  war;  and  see  act  of  September  7,  1916, 

which  contained  authority   'in  addition  section  10  (39  Stat.,  731). 
to  all  other  existing  provisions  of  law,"  for 

[1916,  June  3,  sec.  124.  Nitrate  supply.]  The  products  of  such  plants 
shall  be  used  by  the  President  for  military  and  naval  purposes  to  the  extent 
that  he  may  deem  necessary,  and  any  surplus  which  he  shall  determine  is  not 
required  shall  be  sold  and  disposed  of  by  him  under  such  regulations  as  he  may 
prescribe.— (39  Stat.,  215,  chap.  134.) 


This  was  a  paragraph  contained  in  section  124 
of  the  act  cited,  which  section  authorized 
the  President  to  construct,  maintain,  and 
operate  plants  and  equipment  for  the  pro- 
duction of  nitrates  or  other  products  needed 
for  munitions  of  war,  etc. 


See  act  of  July  2,  1917  (40  Stat.,  241),  as 
amended  by  acts  of  April  11,  1918  (40  Stat., 
618),  and  July  9,  1918  (40  Stat.,  888). 


1413 


June  3,  1916.  Pt.  3.  STATUTES  AT  LARGE. 

[1916,  June  3,  sec.  125.  Protection  of  the  uniform.]     It  shall  be  unlawful  for 
any  person  not  an  odieer  or  cnlistetl  man  of  the  United  States  Army,  Navy, 
or  Marine  Corps,  to  wear  the  duly  prescribed  uniform  of  the  United  States  Army, 
Navy,  or  Marine  Corps,  or  any  distmctivc  part  of  such  uniform,  or  a  uniform 
any  part  of  which  is  similar  to  a  distinctive  part  of  the  duly  prescribed  uniform 
of  the  United  States  Army,  Navy,  or  Marhie  Corps:  Provided,  That  the  foregoing 
provision  shall  not  be  construed  so  as  to  prevent  officers  or  enlisted  men  of  the 
National  Guard  from  wearing,  m  pursuance  of  law  and  regulations,  the  uniform 
la\\'fiilly  prescribed  to  be  worn  by  such  ofTicers  or  enlisted  men  of  the  National 
Guard;  nor  to  prevent  members  of  the  organization  known  as  the  Boy  Scouts  of 
America,  or  the  Naval  Militia,  or  such  other  organizations  as  the  Secretary  of 
War  may  designate,  from  wearmg  their  prescribed  uniforms;  nor  to  prevent  per- 
sons who  in  time  of  war  have  served  honorably  as  officers  of  the  United  States 
Ai'my,  Navy,  or  Marme  Corps,  Regular  or  Volunteer,  and  whose  most  recent 
service  was  termmated  by  an  honorable  discharge,  muster  out,  or  resignation, 
from  wearing,  upon  occasions  of  ceremony,  the  uniform  of  the  highest  grade 
they  have  held  by  brevet  or  other  commission  in  such  Regular  or  Volunteer 
service;  nor  to  prevent  any  person  who  has  been  honorably  discharged  from  the 
United  States  Army,  Navy,  or  Marme  Corps,  Regular  or  Volunteer,  from  wear- 
mg his  uniform  from  the  place  of  his  discharge  to  his  home,  within  three  months 
after  the  date  of  such  discharge;  nor  to  prevent  the  members  of  military  societies 
composed  entirely  of  honorably  discharged  officers  or  enlisted  men,  or  both, 
of  the  United  States  Army,  Navy,  or  Marine  Corps,  Regular  or  Volunteer,  from 
wearing,  upon  occasions  of  ceremony,  the  uniform  duly  prescribed  by  such  socie- 
ties to  be  worn  by  the  members  thereof;  nor  to  prevent  the  instructors  and 
members  of  the  duly  organized  cadet  corps  of  a  State  university.  State  college, 
or  public  high  school  offering  a  regular  course  in  military  instruction  from 
wearmg  the  uniform  duly  prescribed  by  the  authorities  of  such  university, 
college,  or  public  high  school  for  wear  by  the  mstructors  and  members  of  such 
cadet  corps;  nor  to  prevent  the  instructors  and  members  of  the  duly  organized 
cadet  corps  of  any  other  institution  of  learning  offermg  a  regular  course  in 
military  instruction,  and  at  which  an  officer  or  enlisted  man  of  the  United 
States  Army,  Navy,  or  Marine  Corps  is  lawfully  detailed  for  duty  as  instructor 
in  military  science  and  tactics,  from  wearing  the  uniform  duly  prescribed  by 
the  authorities  of  such  institution  of  learnmg  for  wear  by  the  instructors  and 
members  of  such  cadet  corps;  nor  to  prevent  civilians  attendant  upon  a  course 
of  military  or  naval  mstruction  authorized  and  conducted  by  the  military  or 
naval  authorities  of  the  United  States  from  wearmg,  while  in  attendance  upon 
such  course  of  instruction,   the  uniform  authorized  and  prescribed  by  such 
military  or  naval  authorities  for  wear  during  such  course  of  instruction ;  nor  to 
prevent  any  person  from  wearing  the  uniform  of  the  United  States  Army,  Navy, 
or  ^Marine  Corps  in  any  playhouse  or  theater  or  in  moving-picture  films  while 
actually  engaged  in  representing  therein  a  military  or  naval  character  not 
tending  to  bring  discredit  or  reproach  upon  the  United  States  Army,  Navy, 
or  Marme  Corps:  Provided  further,   That  the  uniforms  worn  by  officers  or 
enlisted  men  of  the  National  Guard,  or  by  the  members  of  the  military  societies 
or  the  instructors  and  members  of  the  cadet  corps  referred  to  in  the  precedmg 
proviso  shall  include  some  distinctive  mark  or  msignia  to  be  prescribed  by  the 

1414 


Pt.  3.  STATUTES  AT  LARGE. 


June  3,  1916. 


Secretary  of  War  to  distinguish  such  uniforms  from  the  uniforms  of  the  United 
States  Army,  Navy,  and  Marme  Corps:  And  'provided further,  That  the  members 
of  the  miUtary  societies  and  the  instructors  and  members  of  the  cadet  corps 
hereinbefore  mentioned  shall  not  wear  the  insignia  of  rank  prescribed  to  be 
worn  by  officers  of  the  United  States  Army,  Navy,  or  Marine  Corps,  or  any 
msignia  of  rank  similar  thereto. 

Any  person  who  offends  against  the  provisions  of  this  section  shall,  on 
conviction,  be  punished  by  a  fine  not  exceeding  $300,  or  by  imprisonment  not 
exceeding  six  months,  or  by  both  such  fine  and  imprisomnent. — (39  Stat., 
216-217,  chap.  134;  41  Stat.,  836,  chap.  228.) 

This  section  was  expressly  amended  by  act  of 

July  9,  1918,  section  10  (40  Stat.,  891),  by 

adding   thereto  a   provision  ^-ith   respect 

to  enlisted  men  of  the  Army  and  National 

Guard.  1 1  was  further  amended,  but  without 

express  reference  thereto,  by  act  of  Febru- 
ary 28,  1919,   sections  1  and  2   (40  Stat., 

1202-1203),  with  respect  to  all  persons  who 

served    in    the    Army,    Na^•y,    or    I^Iarine 

Corps,  "during  the  present  war,"  honorably 

discharged  since  April  6,  1917.     (See  file 

29225-21,  Dec.  23,  1920.) 
By  act  of  June  4,  1920,  section  8  (41  Stat.,  836) 

it  was  provided   ''That  section  125  of  the 

Act  entitled  'An  Act  for  making  fm'ther 

and    more    effectual    provisions    for    the 

national  defense,  and  for  other  purposes,' 

approved  June  .3,  19 IG,  shall  hereafter  be 

in  full  force  and  effect  as  originally  enacted, 

notwithstanding  anything  contained  in  the 

Act  entitled  'An  Act  permitting  any  person 

who  has  served  in  the  United  States  Army, 

Navy,  or  Marine  Corps  in  the  present  war 

to  retain  his  uniform  and  personal  equip- 
ment and  to  wear  the  same  under  certain 

conditions,'  approved  February  28,   1918: 

I 

[1916,  June  3,  Sec.  126.  Mileage  and  transportation  on  discharge.]  That 
an  enlisted  man  honorably  discharged  from  the  Army,  Navy,  or  Marine  Corps 
since  November  eleventh,  nineteen  hundred  and  eighteen,  or  who  may  hereafter 
be  honorably  discharged,  shall  receive  five  cents  per  mile  from  the  place  of  his 
discharge  to  his  actual  bona  fide  home  or  residence,  or  original  muster  into  the 
service,  at  his  option:  Provided,  That  for  sea  travel  on  discharge,  transportation 
and  subsistence  only  shall  be  fm-nished  to  enlisted  men:  Provided,  That  naval 
reservists  duly  em"olled  who  have  been  honorably  released  from  active  service 
since  November  eleventh,  nineteen  hundred  and  eighteen,  or  who  may  hereafter 
be  honorably  released  from  active  service,  shall  be  entitled  likewise  to  receive 
mileage  as  aforesaid.— (39  Stat.,  217,  chap.  134;  40  Stat.,  1203,  chap.  70.) 


Provided,  That  the  words  'or  the  Secretary 
of  the  Navy'  shall  be  inserted  immediately 
after  the  words  'the  Secretary  of  War' 
wherever  those  words  appear  in  section  125 
of  the  Act  approved  June  3,  1916,  herein- 
before referred  to."  (The  reference  in  this 
amendment  to  the  act  approved  Februarv 
28,  "1918,"  was  evidently  intended  to 
mean  the  act  of  February  28,  "1919," 
above  cited.) 
See  section  32,  Criminal  Code,  act  of  March  4, 
1909  (35  Stat.,  1095),  as  to  impersonating 
officers  of  the  United  States,  etc.;  act  of 
March  1,  1911  (36  Stat.,  963),  as  to  discrim- 
ination against  the  uniform  of  the  United 
States  bv  places  of  amusement,  etc.;  act 
of  July  8,  1918  (40  Stat.,  821),  as  to  unau- 
thorized wearing  of  miiforms  of  friendlv 
nations;  act  of  July  1,  1918  (40  Stat.,  712) 
as  to  members  of  Naval  Reserve  Force  au- 
orized  to  wear  their  uniforms  when  not 
in  active  sersdce;  and  act  of  August  29, 
1916  (39  Stat.,  .588),  as  to  unauthorized 
wearing  of  the  distinctive  insignia  of  the 
Naval  Reserve  Force. 


This  section  was  expressly  amended  and  reen- 
acted  to  read  as  above  Ijy  act  of  February 
28,  1919,  section  3  (40  Stat.,  1203).  See 
act  of  March  3,  1901(31  Stat.,  1030),  and  see 
note  to  section  1569,  Re\ised  Statutes, 
under  "20.  Mileage  and  transportation  on 
discharge." 

By  act  of  June  4,  1920,  section  6  (41  Stat.,  836) 
it  was  pro\'ided :  '*'  That  in  case  any  enlisted 
man  or  enrolled  man  who,  since  the  11th 
day  of  November,  1918,  has  been  or  here- 
after shall  be  discharged  from  any  branch 


or  class  of  the  naval  service  for  the  purpose 
of  reenlisting  in  the  Navy  or  ]\Iarine  Corps 
or  heretofore  has  extended  or  hereafter  shall 
extend  his  enlistment  therein,  he  shall  lie 
entitled  *  *  *  to  travel  pay  as  author- 
ized in  section  3  of  the  Act  entitled  ''An 
Act  permitting  any  person  who  has  served 
in  the  United  States  Army,  Navy,  or 
^Marine  Corps  in  the  present  war  to  retain 
his  uniform  and  personal  equipment  and  to 
wear  the  same  under  certain  conditions" 
approved  February  28,  1919    *    *    *." 


1415 


July  1,  1916.  Pt.  3.  STATUTES  AT  LARGE. 

[1916,  June  12.  Naval  officers  appointed  to  office  in  Haiti;  increases  in 
personnel,  pay,  etc. J  Tliat  tlic  Prosidont  of  the  United  vStutes  be,  and  he  is 
luToby,  autliori/AHl,  in  his  discretion,  to  detail  to  assist  the  Republic  of  Haiti 
such  officers  and  enlisted  men  of  the  United  States  Navy  and  the  United  States 
Marine  Corps  as  may  be  mutually  agreed  upon  by  him  and  the  President  of  the 
Kcpu]>lic  of  Haiti:  Provided,  That  the  officers  and  enlisted  men  so  detailed  be, 
and  they  are  hereby,  authorized  to  accept  from  the  Government  of  Haiti  the 
said  employment  with  compensation  and  emoluments  from  the  said  Govern- 
ment of  Haiti,  subject  to  the  approval  of  the  President  of  the  United  States. — 
(39  Stat.,  223,  chap.  140.) 

Sec.  2.  That  to  insure  the  continuance  of  this  work  during  such  time  as 
may  be  desirable,  the  President  may  have  the  power  of  substitution  in  the  case 
of  the  termination  of  the  detail  of  any  officer  or  enlisted  man  for  any  cause: 
Provided,  That  during  the  continuance  of  such  details  the  officers  and  enlisted 
men  shall  continue  to  receive  the  pay  and  allowances  of  their  ranks  or  ratings  in 
the  Navy  or  Marine  Corps.— (39  Stat.,  224,  chap.  140.) 

Sec.  3.  That  the  following  increase  in  the  United  States  Marine  Corps  be, 
and  the  same  is  hereby,  authorized:  Two  majors,  twelve  captains,  eighteen 
first  lieutenants,  two  assistant  quartermasters  with  the  rank  of  captain,  one 
assistant  paymaster  with  the  rank  of  captain,  five  quartermaster  sergeants, 
five  first  sergeants,  five  gunnery  sergeants,  and  eleven  sergeants. — (39  Stat., 
224,  chap.  140.) 

Sec,  4.  That  the  following  increase  in  the  United  States  Navy  be,  and  the 
same  is  hereby  authorized:  One  surgeon,  two  passed  assistant  surgeons,  five 
hospital  stewards,  and  ten  hospital  apprentices,  first  class. — (39  Stat.,  224, 
chap.  140.) 

Sec.  5.  That  officers  and  enlisted  men  of  the  Navy  and  Marine  Corps 
detailed  for  duty  to  assist  the  Republic  of  Haiti  shall  be  entited  to  the  same 
credit  for  such  service,  for  longevity,  retirement,  foreign  service,  pay,  and  for  * 
all  other  purposes,  that  they  would  receive  if  they  were  serving  with  the  Navy 
or  with  the  Marine  Corps.— (39  Stat.,  224,  chap.  140.) 

As  to  acceptance  of  office  under  foreign  govern-  As  to  number  of  officers  and  enlisted  men  of  the 

ments,  see  note  to  Constitution,  Article  I,  Marine  Corps,    see  note   to  section   1596, 

section  9,  clause  8;  see  also  joint  resolution  Revised  Statutes;  as  to  Medical  Corps  of 

of  October  13,  1914  (38  Stat.,  780),  and  acts  the  Navy,  see  note  to  section  1368,  Ile\ised 

of  February  11,  1918  (40  Stat.,  437),  and  Statutes;  and  as  to  Hospital  Corps,  see  act 

June  5,  1920  (41  Stat.,  1056).  of  August  29,  1916  (39  Stat.,  572). 

[1916,  July  1,  sec.  3.  Annual  reports;  copy  furnished  Public  Printer.]  That 
appropriations  herein  and  herafter  made  for  printing  and  binding  shall  not 
be  used  for  any  annual  report  or  the  accompaning  documents  unless  the  copy 
therefor  is  furnished  to  the  Public  Printer  in  the  following  manner:  Copies 
of  the  documents  accompanying  such  annual  reports  on  or  before  the  fifteenth 
day  of  October  of  each  year;  copies  of  the  annual  reports  on  or  before  the 
fifteenth  day  of  November  of  each  year;  complete  revised  proofs  of  the  accom- 
panying documents  and  the  annual  reports  on  the  tenth  and  twentieth  days  of 
November  of  each  year,  respectively;  and  all  of  said  annual  reports  and  accom- 
panying documents  shall  be  printed,  made  public,  and  available  for  distri- 
bution not  later  than  within  the  first  five  days  after  the  assembling  of  each 
regular  session  of  Congress:  The  provisions  of  this  section  shall  not  apply  to 

1416 


Pt.  3.  STATUTES  AT  LARGE.  Aug.  29,  1916. 

the  annual  reports  of  the  Smithsonian  Institution,  the  Commissioner  of  Patents, 
or  the  Comptroller  of  the  Currency. —  (39  Stat.,  336,  chap.  209). 
See  notes  to  sections  196  and  429,  Revised  Statutes. 

[1916,  July  1,  sec.  4.  Estimates;  lump-sum  appropriations.]  That  the 
information  required  in  connection  with  estimates  for  general  or  lump-sum 
appropriations  by  section  ten  of  the  sundry  civil  appropriation  Act,  approved 
August  first,  nineteen  hundred  and  fourteen,  shall  be  submitted  hereafter 
according  to  uniform  and  concise  methods  which  shall  be  prescribed  by  the 
vSecretary  of  the  Treasury,  but  with  reference  to  estimates  for  pay  of  mechanics 
and  laborers  there  shall  be  submitted  in  detail  only  the  ratings  and  trades 
and  the  rates  per  diem  paid  or  to  be  paid. —  (39  Stat.,  336,  chap.  209.) 


The  act  of  August  1,  1914,  section  10  (38  Stat., 
680),  referred  to  in  this  section,  expressly- 
amended  and  reenacted  section  6  of  the 


act   of  August   24,  1912   (37   Stat.,  487); 
see  the  latter  act  and  note  thereto. 


[1916,  July  1,  sec.  6.  Outstanding  checks;  annual  report.]  That  hereafter 
at  the  termination  of  each  fiscal  year  each  Auditor  of  the  Treasury  shall  report 
to  the  Secretary  of  the  Treasury  all  checks  issued  by  any  disbursing  officer 
of  the  Government  as  shown  by  his  accounts  rendered  to  such  auditor,  which 
shall  then  have  been  outstanding  and  unpaid  for  three  years  or  more,  stating 
fully  in  such  report  the  name  of  the  payee,  for  what  purpose  each  check  w^as 
given,  the  office  on  which  drawn,  the  number  of  the  voucher  received  therefor, 
the  date,  the  number,  and  the  amount  for  which  it  was  drawn,  and,  when 
known,  the  residence  of  the  payee.  And  such  reports  shall  be  in  lieu  of  the 
returns  required  of  disbursing  officers  by  section  three  hundred  and  ten  of  the 
Revised  Statutes.— (39  Stat.,  336,  chap.  209.) 

See  section  310,  Revised  Statutes. 

[1916,  Aug.  29.  Appropriation  for  obtaining  information;  accounting.] 
That  hereafter  expenditures  from  the  appropriation  for  obtaining  information 
from  abroad  and  at  home  shall  be  accounted  for  specifically,  if,  in  the  judgment 
of  the  Secretary  of  the  Navy,  they  may  be  made  public,  and  he  shall  make  a 
certificate  of  the  amount  of  such  expenditures  as  he  may  think  it  advisable  not 
to  specify,  and  every  such  certificate  shall  be  deemed  a  sufficient  voucher  for 
the  sum  therein  expressed  to  have  been  expended. —  (39  Stat.,  557,  chap.  417.) 

[1916,  Aug.  29.  Leave  of  absence;  employees  outside  United  States.]  That 
hereafter  any  civilian  employee  of  the  Navy  Department  w^ho  is  a  citizen  of 
the  United  States  and  employed  at  any  station  outside  the  continental  limits 
of  the  United  States  may,  in  the  discretion  of  the  Secretary  of  the  Navy,  after  at 
least  two  years'  continuous  faithful,  and  satisfactory  service  abroad,  and 
subject  to  the  interests  of  the  public  service,  be  granted  accrued  leave  of  absence, 
with  pay,  for  each  year  of  service,  and  if  an  employee  should  elect  to  postpone 
the  taking  of  any  or  all  of  the  leave  to  which  he  may  be  entitled  in  pursuance 
hereof  such  leave  may  be  allowed  to  accumulate  for  a  period  of  not  exceeding 
four  years,  the  rate  of  pay  for  accrued  leave  to  be  the  rate  obtaining  at  the 
time  the  leave  is  granted. —  (39  Stat.,  557-558,  chap.  417.) 

See  note  to  section  1545,  Revised  Statutes. 

[1916,  Aug.  29.  Insane  prisoners  of  war,  etc.]  Hereafter  interned  persons 
and  prisoners  of  war,  under  the  jurisdiction  of  the  Navy  Department,  who 

1417 


Aug.  29,  1916.  Pt.  S.  STATUTES  AT  LARGE. 

arc  or  may  become  insane,  shall  be  entitled  to  admission  for  treatment  to  the 
Government  Hospital  for  the  Insane. —  (39  Stat.,  558,  chap.  417.) 

The  designation  of  the  "Government  Hospital    I  1916  (39  Stat.,  309),  noted  under  section 

for  the  Insane"   ^vas  charged    to  "Saint  4838,    Revised  Statutes;  see  also  section 

Elizaheths  Hospital"   hy  act  of  July   1,    '  4843,  Revised  Statutes. 

[1916,  Aug.  29.  Chief  of  Naval  Operations.]  Hereafter  the  Chief  of  Naval 
Operations,  while  so  serving  as  such  Chief  of  Naval  Operations,  shall  have  the 
rank  and  title  of  admiral,  to  take  rank  next  after  The  Admiral  of  the  Navy,  and 
shall,  while  so  serving  as  Chief  of  Naval  Operations,  receive  the  pay  of  §10,000 
per  annum  and  no  allowances.  All  orders  issued  by  the  Chief  of  Naval  Opera- 
tions in  performing  the  duties  assigned  him  shall  be  performed  under  the 
authority  of  the  Secretary  of  the  Navy,  and  his  orders  shall  be  considered  as 
emanating  from  the  Secretary,  and  shall  have  full  force  and  effect  as  such.  To 
assist  the  Chief  of  Naval  Operations  in  performing  the  duties  of  his  office  there 
siiall  be  assigned  for  this  exclusive  duty  not  less  than  fifteen  officers  of  and  above 
the  rank  of  lieutenant  commander  of  the  Navy  or  major  of  the  Marine  Corps: 
Provided,  That  if  an  officer  of  the  grade  of  captain  be  appointed  Chief  of  Naval 
Operations  he  shall  have  the  rank  and  title  of  admiral,  as  above  provided,  while 
holding  that  position:  Provided  further,  That  should  an  officer,  while  serving  as 
Chief  of  Naval  Operations,  be  retired  from  active  service  he  shall  be  retired  with 
the  lineal  rank  and  the  retired  pay  to  which  he  would  be  entitled  had  he  not 
been  serving  as  Chief  of  Naval  Operations. — (39  Stat.,  558,  chap.  417.) 


Amendment  to  this  provision  was  made  bv  act 
of  July  1,  1918  (40  Stat.,  716),  as  to  allow- 
ances of  the  Chief  of  Naval  Operations. 

The  office  of  Chief  of  Naval  Operations  was  es- 


tablished by  act  of  March  3,  1915  (38  Stat., 
929). 
See  note  to  section  419,  Re\ised  Statutes. 


[1916,  Aug.  29.  Assistants  to  chiefs  of  bureaus  and  Judge  Advocate  General.] 
Hereafter  an  officer  of  the  Corps  of  Civil  Engineers  may  be  detailed  as  assistant 
to  the  Chief  of  the  Bureau  of  Yards  and  Docks  and  an  officer  of  the  Corps  of 
Naval  Constructors  as  assistant  to  the  Chief  of  Bureau  of  Construction  and 
Repair;  and,  in  case  of  death,  resignation,  absence,  or  sickness  of  the  chief  of 
bureau,  shall,  imless  otherwise  directed  by  the  President,  as  provided  by 
section  one  hundred  and  seventy-nine  of  the  Revised  Statutes,  perform  the 
duties  of  such  chief  until  his  successor  is  appointed  or  such  absence  or  sickness 
shall  c^ase;  and  hereafter  an  officer  of  the  line  of  the  Navy  or  Marine  Corps  may 
be  detailed  as  assistant  to  the  Judge  Advocate  General  of  the  Navy,  who  shall, 
under  similar  conditions,  perform  the  duties  of  the  Judge  Advocate  General. 
(39  Stat.,  558,  chap.  417.) 


See  sections  178-182  and  421,  ReAdsed  Statutes, 

and  notes  thereto. 
For  laws  authorizing  appointment  of  assistants 


to  other  chiefs  of  bureaus  in  the  Na^^  De- 
partment, see  references  under  section  421, 
Revised  Statutes. 


[1916,  Aug.  29.  Lump  sum  employees;  compensation,  annual  report.]  Here- 
after such  amount  may  be  expended  annually  for  pay  of  drafting,  technical, 
and  inspection  force  from  the  several  lump  sum  appropriations  in  which  specific 
authority  for  such  expenditure  is  given,  as  the  Secretary  of  the  Navy  may  deem 
necessary  within  the  limitation  of  appropriation  provided  for  such  service  in 
said  lump  sum  appropriations  at  such  rates  of  compensation  as  the  Secretary  of 
the  Navy  may  prescribe;  and  the  Secretary  of  the  Navy  shall  each  year,  in  the 

1418 


Ft.  3.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


annual  estimates,  report  to  Congress  the  number  of  persons  so  employed,  their 
duties,  and  the  amount  paid  to  each. — :(39  Stat.,  558,  chap.  417.) 

See  notes  to  sections  416,  429,  and  1545,  Revised  Statutes. 

[1916,  Aug-.  29.  lease  of  naval  lands.]  That  authority  be,  and  is  hereby, 
given  to  the  Secretary  of  the  Navy,  when  in  his  discretion  it  will  be  for  the  public 
good,  to  lease  for  periods  not  exceeding  five  years  and  revocable  at  any  time, 
such  property  of  the  United  States  under  his  control  as  may  not  for  the  time 
being  be  required  for  public  use  and  for  the  leasing  of  which  there  is  no  authority 
under  existing  law,  and  such  leases  shall  be  reported  annually  to  Congress:  Pro- 
vided, That  the  authority  herein  granted  shall  not  be  held  to  apply  to  oil,  mineral, 
or  phosphate  lands :  Provided  further,  That  all  moneys  received  from  such  leases 
shall  be  covered  into  the  Treasiu-y  as  miscellaneous  receipts. —  (39  Stat.,  559-560, 
chap.  417.) 

See  acts  of  August  25,  1914  (38  Stat.,  709),  and  February  25,  1920  (41  Stat.,  437). 

[1916,  Aug.  29.  Honorable  discharge;  one  year's  service.     Repealed.] 


This  provision  read  as  follows: 
' '  That  any  person  who  may  hereafter  enlist  in 
the  Navy  for  the  first  time  shall,  in  time  of  peace 
if  he  so  elects,  receive  discharge  therefrom  with- 
out cost  to  himself  during  the  month  of  June  or 
December,  respectively,  following  the  comple- 
tion of  one  year's  service  at  sea.  An  honorable 
discharge  may  be  granted  under  this  provision 
but  when  so  granted  shall  not  entitle  the  holder, 


in  case  of  reenlistment,  to  the  benefits  of  an 
honorable  discharge  granted  upon  completion 
of  an  enlistment:  And  provided  further ,  That,  at 
the  time,  he  is  not  under  charges,  or  undergoing 
punishment,  or  in  debt  to  the  Government." 
(39  Stat.,  560,  chap.  417.) 

It  was  expressly  repealed  by  act  of  March 
4,  1917  (39  Stat.,  1171). 


[1916,  Aug.  29.  Postmasters  enlisting  recruits.     Repealed.] 


This  provision  read  as  follows: 
' '  That  the  President  is  authorized  in  his  dis- 
cretion to  utilize  the  services  of  postmasters 
of  the  second,  third,  and  fourth  classes  in  pro- 
curing the  enlistment  of  recruits  for  the  Navy 
and  the  Marine  Corps,  and  for  each  recrmt  ac- 


cepted for  enlistment  in  the  Navy  or  the 
Maiine  Corps,  the  postmaster  procuring  his 
enlistment  shall  receive  the  smn  of  $5."  (39 
Stat.,  560,  chap.  417.) 

It  was  expressly  repealed    by  act  of  July 
2,  1918,  section  11  (40  Stat.,  754). 


As  to  annual  reports  required  to  be  made  by 
the  Secretary  of  the  Navy,  see  section  429, 
Revised  Statutes,  and  notes  thereto. 


[1916,  Aug.    29.    Armor    plants;    annual    report.]     The    Secretary    of    the 

Navy  shall  keep  accurate  and  itemized  account  of  the  cost  per  ton  of  the  product 

of  such  factory  or  factories  and  report  the  same  to  Congress  in  his  annual 

report.— (39  Stat.,  564,  chap.  417.) 

This  paragraph  followed  authorization  and 
appropriation  for  the  erection  and  purchase 
of  factories  by  the  Secretary  of  the  Navy,  at 
locations  approved  by  the  General  Board, 
for  the  manufacture  of  armor  for  the  Navy. 

[1916,  Aug.  29.  Exchange  of  motor  vehicles.]  That  hereafter  worn-out 
motor-propelled  vehicles  for  the  Naval  Establishment  may  be  exchanged  as  a 
part  of  the  purchase  price  of  new  ones. — (39  Stat.,  565,  chap.  417.) 

See  section  418,  Revised  Statutes,  and  note  thereto. 

[1916,  Aug.  29.  Hospital  Corps;  enlistments,  appointments,  and  pro- 
motions ;  pay ;  duties ;  etc.]  Hereafter  the  authorized  strength  of  the  Hospital 
Corps  of  the  Navy  shall  equal  three  and  one-half  per  centum  of  the  authorized 
enlisted  strength  of  the  Navy  and  Marine  Corps,  and  shall  be  in  addition  thereto, 
and  as  soon  as  the  necessary  transfers  or  appointments  may  be  effected  the 
Hospital  Corps  of  the  United  States  Navy  shall  consist  of  the  following  grades 
and  ratings:     Chief  pharmacists,  pharmacists,  and  enlisted  men  classified  as 


54641°— 22- 


-90 


1419 


Aug.  29,  1916.  Pt.  3.  STATUTES  AT  LARGE. 

chief  pharmacists'  mates;  pharmacists'  mates,  first  class;  pharmacists'  mates, 
secimd  chiss;  pharmacists'  mates,  thii'd  class;  hospital  apprentices,  first  class; 
ami  hospital  apprentices,  second  class;  such  classifications  in  enlisted  ratings 
to  correspond  respectively  to  the  enlisted  ratings,  seamen  branch,  of  chief  petty 
ollicers;  petty  oHicers,  first  class;  petty  officers,  second  class;  petty  officers, 
third  class;  seamen,  first  class;  and  seamen,  second  class:  Provided,  That  enlisted" 
men  of  other  ratings  in  the  Navy  and  in  the  Marine  Corps  shall  be  eligible  for 
transfer  to  the  Hospital  Corps,  and  men  of  that  corps  to  other  ratings  in  the 
Navy  and  the  Marine  Corps. — (39  Stat.,  572,  chap.  417.) 

The  President  may  hereafter,  from  time  to  time,  appoint  as  many  pharma- 
cists as  may  be  deemed  necessary,  from  the  rating  of  chief  pharmacist's  mate, 
subject  to  such  moral,  physical,  and  professional  examinations  and  require- 
ments as  to  length  of  service  as  the  Secretary  of  the  Navy  may  prescribe: 
Provided,  That  the  pharmacists  now  in  the  Hospital  Corps  of  the  United  States 
Navy  or  hereafter  appointed  therein  in  accordance  \\4th  the  provisions  of  this 
Act  shall  have  the  same  rank,  pay,  and  allowances  as  are  now  or  may  hereafter 
be  allowed  other  warrant  officers. — (39  Stat.,  572-573,  chap.  417.) 

Pharmacists  shall,  after  six  years  from  the  date  of  warrant,  be  commis- 
sioned chief  pharmacists  after  passing  satisfactorily  such  examinations  as  the 
Secretary  of  the  Navy  may  prescribe,  and  shall,  when  so  commissioned,  have 
the  same  rank,  pay,  and  allowances  as  now  or  may  hereafter  be  allowed  other 
commissioned  warrant  officers:  Provided,  That  the  pharmacists  at  present 
in  the  service  who  have  served  or  may  hereafter  serve  six  or  more  years  in  that 
grade  shall  be  eligible  for  promotion  to  the  grade  of  chief  pharmacist  upon 
satisfactorily  passing  the  examinations  provided  for  in  this  Act. 

The  Secretary  of  the  Navy  is  hereby  empowered  to  limit  and  fix  the  numbers 
in  the  various  ratings. 

Section  three  of  an  Act  entitled  ''An  Act  to  organize  a  Hospital  Corps  of  the 
Navy  of  the  United  States;  to  define  its  duties  and  regulate  its  pay,"  approved 
June  seventeenth,  eighteen  hunch*ed  and  ninety-eight,  be,  and  the  same  is 
hereby,  repealed,  and  the  pay,  allowances,  and  emoluments  of  the  enlisted  men 
of  the  Hospital  Corps  shall  be  the  same  as  are  now,  or  may  hereafter  be,  allowed 
for  respective  corresponding  ratings,  except  the  rating  of  turret  captain  of  the 
first  class  in  the  seaman  branch  of  the  Navy:  Provided,  That  the  pay  of  the 
rating  of  the  chief  pharmacist's  mate  shall  be  the  same  as  that  now  allowed 
for  the  existing  rating  of  hospital  steward. 

Hospital  and  ambulance  service  with  such  commands  and  at  such  places 
as  may  be  prescribed  by  the  Secretary  of  the  Navy,  shall  be  performed  by 
members  of  said  corps,  and  the  corps  shall  be  a  constituent  part  of  the  Medical 
Department  of  the  Navy;  and  the  enlisted  men  thereof  shall  be  a  part  of  the 
enlisted  force  provided  by  law  for  the  Navy. — (39  Stat.,  573,  chap.  417.) 


The  Hospital  Corps  was  established  by  act  of 
June  17,  1898  (30  Stat.,  474).  See  that  act 
and  note  thereto. 

As  to  appointment  and  promotion  of  pharma- 
cists, see  note  to  section  1405,  Revised 
Statutes. 

As  to  the  authorized  enlisted  strength  of  the 


As  to  pay  of  pharmacists  and  chief  pharmacists, 
see  note  to  section  1556,  Revised  Statutes, 
under  "25.  Warrant  officers,  acting  warrant 
officers,  and  commissioned  warrant  officers;" 
as  to  pay  of  enlisted  men  of  the  Navy,  see 
note  to  section  1569,  Revised  Statutes. 
As  to  the  organization  of  the  Medical  Depart- 
Navy  and  Marine  f  "orps,  see  notes  to  sections    ]  ment  of  the  N  avy,  see  note  to  section  1368, 

1417  and  1596,  Revised  Statutes.  i  Revised  Statutes. 


1420 


PL  3.  STATUTES  AT  LARGE.  Aug.  29,  1916. 

[1916,  Aug.  29.  Medical  personnel  serving  with  the  Army.]  Officers  and 
enlisted  men  of  the  Medical  Department  of  the  Navy,  serving  with  a  body  of 
marines  detached  for  service  with  the  Ai-my  in  accordance  with  the  provisions 
of  section  sixteen  hundred  and  twenty-one  of  the  Revised  Statutes, 
sliall,  while  so  serving,  be  subject  to  the  rules  and  articles  of  war  prescribed 
for  the  government  of  the  Army  in  the  same  manner  as  the  officers  and  men 
of  the  Marine  Corps  while  so  serving. — (39  Stat.,  573,  chap.  417.) 

See  note  to  section  1621,  Revised  Statutes;  see  also  article  2  of  the  Articles  of  War,  act  of 
June  4,  1920  (40  Stat.,  787).  _ 

[1916,  Aug.  29.  Naval  Dental  Corps.]  That  the  President  of  the  United 
States  is  hereby  authorized  to  appoint  and  commission,  by  and  with  the  advice 
and  consent  of  the  Senate,  dental  officers  in  the  Navy  at  the  rate  of  one  for  each 
thousand  of  the  total  authorized  number  of  officers  and  enlisted  men  of  the 
Navy  and  Marine  Corps,  in  the  grades  of  assistant  dental  surgeon,  passed 
assistant  dental  surgeon  and  dental  surgeon,  who  shall  constitute  the  Naval 
Dental  Corps,  and  shall  be  a  part  of  the  MecUcal  Department  of  the  Navy. 
Original  appointments  to  the  Naval  Dental  Corps  shall  be  made  in  the  grade 
of  assistant  dental  surgeon  %vith  the  rank  of  lieutenant  (junior  grade),  and  all 
dental  officers  now  in  the  Dental  Corps  appointed  under  the  provisions  of  the 
Act  of  Congress  approved  August  twenty-second,  nineteen  hundred  and  twelve 
(Statutes  at  Large,  volume  thirty-seven,  page  three  hundred  and  forty-five), 
or  under  the  provisions  of  the  Act  of  Congress  approved  August  twenty-ninth, 
nineteen  hundred  and  sixteen  (Statutes  at  Large,  volume  thirty-nine,  page 
five  hundi-ed  and  seventy- three) ,  or  who  may  hereafter  be  appointed  shall  take 
rank  and  precedence  with  officers  of  the  Naval  Medical  Corps  of  the  same  rank 
according  to  the  dates  of  their  respective  commissions  or  original  appointments, 
and  all  such  dental  officers  shall  be  eligible  for  advancement  in  grade  and  rank 
in  the  same  manner  and  under  the  same  conditions  as  officers  of  the  Naval 
Medical  Cx>rps  with  or  next  after  wdiom  they  take  precedence,  and  shall  receive 
the  same  pay  and  allowances  as  officers  of  corresponding  rank  and  length  of 
service  in  the  Naval  Medical  Corps  up  to  and  incluchng  the  rank  of  lieutenant 
commander:  Provided,  That  dental  surgeons  shall  be  eligible  for  advancement 
in  pay  and  allowances,  but  not  in  rank,  to  and  including  the  pay  and  allow- 
ances of  commander  and  captain,  subject  to  such  examinations  as  the  Secretary 
of  the  Navy  may  prescribe,  except  that  the  number  of  dental  surgeons  wdth  the 
pay  and  allowances  of  captain  shall  not  exceed  four  and  one-half  per  centum  and 
the  number  of  dental  surgeons  ^^^th  the  pay  and  allowances  of  commander  shall 
not  exceed  eight  per  centum  of  the  total  authorized  number  of  dental  officers: 
Provided  further,  That  dental  surgeons  shall  be  eligible  for  advancement  to  the 
pay  and  allowances  of  commander  and  captain  when  their  total  active  service 
as  dental  officers  in  the  Navy  is  such  that  if  rendered  as  officers  of  the  Naval 
Medical  Corps,  it  would  place  them  in  the  list  of  medical  officers  with  the  pay 
and  allowances  of  commander  or  captain,  as  the  case  may  be:  And  provided 
furtJier,  That  dental  officers  who  shall  have  gained  or  lost  numbers  on  the  Navy 
list  shall  be  considered  to  have  gained  or  lost  service  accordingly;  and  the 
time  served  by  dental  officers  on  active  duty  as  acting  assistant  dental  surgeons 


1421 


Aug.  29,  1916. 


Pt.  3.  STATUTES  AT  LARGE. 


and  assistant  dental  surgeons  under  provisions  of  law  existing  prior  to  the 
passage  of  this  Act  sluill  be  reckoned  in  computing  the  increased  service  pay 
and  service  for  precedence  and  promotion  of  dental  officers  herein  authorized 
or  heretofore  ai)pointed. 

All  appointees  authorized  by  this  Act  shall  be  citizens  of  the  United  States 
between  twenty-one  and  thirty-two  years  of  age,  and  shall  be  graduates  of 
standard  medical  or  dental  colleges  and  trained  in  the  several  branches  of 
dentistry,  and  shall,  before  appointment,  have  successfully  passed  mental,  moral, 
physical,  and  professional  examinations  before  medical  and  professional  ex- 
amining boards  appointed  by  the  Secretary  of  the  Navy,  and  have  been  rec- 
ommended for  appointment  by  such  boards:  Provided,  That  hereafter  no  per- 
son shall  be  appointed  as  assistant  dental  surgeon  in  the  Navy  who  is  not  a 
graduate  of  a  standard  medical  or  dental  college. 

Officers  of  the  Naval  Dental  Corps  shall  become  eligible  for  retirement  in 
the  same  manner  and  under  the  same  conditions  as  now  prescribed  by  law 
for  officers  of  the  Naval  Medical  Corps,  except  that  section  fourteen  hundred 
and  forty-five  of  the  Revised  Statutes  of  the  United  States  shall  not  be  applica- 
ble to  dental  officers,  and  they  shall  not  be  entitled  to  rank  above  lieutenant 
commander  on  the  retired  list,  or  to  retired  pay  above  that  of  captain. 

All  dental  officers  now  serving  under  probationary  appointments  shall 
become  immediately  eligible  for  permanent  appointment  under  the  provisions 
of  this  Act,  subject  to  the  examinations  prescribed  by  the  Secretary  of  the 
Navy  for  original  appointment  as  dental  officers,  and  may  be  appointed  assistant 
dental  surgeon  with  the  rank  of  lieutenant  (junior  grade)  to  rank  from  the  date 
of  their  probationary  appointments:  Provided,  That  the  senior  dental  officer 
now  at  the  United  States  Naval  Academy  shall  not  be  displaced  by  the  provi- 
sions of  this  Act,  and  he  shall  hereafter  have  the  grade  of  dental  surgeon  and  the 
rank,  pay,  and  allowances  of  lieutenant  commander,  and  he  shall  not  be  eligible 
for  retirement  before  he  has  reached  the  age  of  seventy  years,  except  for  physical 
disability  incurred  in  the  line  of  duty:  Provided  further,  That  no  dental  officer 
in  the  Navy  who  on  original  appointment  as  dental  officer  was  over  forty  years 
of  age  shall  be  eligible  for  retirement  before  he  has  reached  the  age  of  seventy 
years,  except  for  physical  disability  incurred  in  hne  of  duty. 

All  Acts  or  parts  of  Acts  inconsistent  with  the  provisions  of  this  Act  relating 
to  the  Dental  Corps  of  the  Navy  are  hereby  repealed:  Provided,  That  nothing 
herein  contained  shall  be  construed  to  legislate  out  of  the  service  any  officer 
now  in  the  Medical  Department  of  the  Nav}^  or  to  reduce  the  rank,  pay,  or  allow- 
ances now  authorized  by  law  for  any  officer  of  the  Navy. — (39  Stat.,  573-574, 
chap.  417;  40  Stat.,  708-710,  chap.  114.) 


The  foregoing  paragraphs  relating  to  the  Naval 
Dental  Corps  were  expressly  amended  and 
reenacted  to  read  as  above  set  forth  by 
act  of  July  1,  1918  (40  Stat.,  708-710). 

The  Naval  Dental  Corps  ^vas  created  bv  act 
of  August  22,  1912  (;i7  Stat.,  344),  which 
was  superseded  by  the  provisions  on  the 
same  subject  in  the  act  of  August  29, 
1916  (39  SUt.,  573-574). 


As  to  the  organization  of  the  Medical  Depart- 
ment of  the  Navy,  see  note  to  section  1368, 
Revised  Statutes. 

As  to  pay  of  Dental  Corps,  see  note  to  section 
1556,  Revised  Statutes;  see  also  act  of 
March  4,  1917  (39  Stat.,  1182). 


1422 


Ft.  3.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


[1916,  Aug.  29.     Dental  Reserve  Corps.     Repealed.] 


tained  in  the  act  of  August  29,  1916  (39  Stat., 
574-575),  which  in  tui'n  were  expressly  repealed 
by  act  of  July  1,  1918  (40  Stat.,  708),  which  pro- 
vided for  the  transfer  of  Dental  Reserve  Corps 
officers  to  the  Naval  Reserve  Force. 


A  Navy  Dental  Reserve  Corps  was  authorized 
by  the  act  of  March  4,  1913  (37  Stat.,  903),  to  be 
organized  and  operated  under  the  provisions  of 
law  providing  for  the  Navy  Medical  Reserve 
Corps.  Said  act  of  March  4,  1913,  was  super- 
seded by  provisions  on  the  same  subject  con- 

[1916,  Aug.  29,  Authorized  enlisted  strength;  men  sentenced  to  discharge.] 
Pay  of  the  Navy:  *  *  *  p^y  of  petty  officers,  seamen,  landsmen,  and 
apprentice  seamen,  including  men  in  the  engineers'  force  and  men  detailed 
for  duty  with  the  Fish  Commission,  sixty-eight  thousand  seven  hundred  men, 
and  the  President  is  hereafter  authorized,  whenever  in  his  judgment  a  sufficient 
national  emergency  exists,  to  increase  the  authorized  enlisted  strength  of  the 
Navy  to  eighty-seven  thousand  men;  and  pay  of  enlisted  men  of  the  Hospital 
Corps,  and  for  the  pay  of  enlisted  men  detailed  for  duty  with  the  Naval  Militia, 
$30,655,704.29;  pay  of  enlisted  men  undergoing  sentence  of  court-martial, 
S225,000,  and  hereafter  the  number  of  enlisted  men  of  the  Navy  shall  be 
exclusive  of  those  sentenced  by  court-martial  to  discharge  *  *  *. — (39 
Stat.,  575,  chap.  417.) 


be  construed  as  reducing  the  permanent 
enlisted  strength  of  the  Regular  Na\'y  as 
authorized  by  existing  law. 
See  note  to  section  1417,  Revised  Statutes,  for 
other  laws  relating  to  the  enlisted  strength 
of  the  Navy,  and  for  definition  of  "author- 
ized enlisted  strength,"  and  "total  author- 
ized enlisted  strength." 
Men  sentenced  by  court-martial  to  dis- 
charge.— The  foregoing  provisions  in  the  act 
of  August  29,  1916,  that  "hereafter  the  number 
of  enlisted  men  of  the  Navy  shaU  be  exclusive 
of  those  sentenced   by   court-martial  to  dis- 
charge," is  permanent  legislation,  and  modifies 
that  contained  in  previous  acts  on  the  same  sub- 
ject.    (File  28687-4,  Sept.  16,  1916.     See  note 
to  sec.  1417,  R.  S.) 


By  act  of  July  1,  1918  (40  Stat.,  714),  "the 

authorized  enlisted  strength  of  the  active 

list  of  the  Navy"  was  increased  to  131,485; 

and  by  act  of  July  11,  1919  (41  Stat.,  138), 

the"total  authorized  enlisted  strength  of  the 

active  list  of  the  Navy"  was  temporarily 

increased,  with  the  proviso  "that  nothing 

herein  shall  be  construed  as  affecting  the 

permanent    *    *    *    enlisted  strength  of 

the  Regular  Navy  as  authorized  by  existing 

law. ' '    The  latter  act  further  provided  that 

"the  President  is  hereby  authorized,  when- 
ever in  his  judgment  a  sufficient  national 

emergency  exists,  to  increase  the  author- 
ized   enlisted   strength   of   the   Na\'y   to 

191,000  men." 
By  act  of  June  4,  1920,  section  2  (41  Stat.,  834\ 

it  was  provided  that  nothing  therein  should 

[1916,  Aug.  29.  New  ratings  established.]  That  the  designation  of  the  rat- 
ing of  coal  passer  be  changed  to  fireman,  third  class,  and  that  of  ordinary  sea- 
man, to  seaman,  second  class,  without  change  of  pay;  and  that  the  Bureau  of 
Navigation  be  authorized  under  rules  established  for  the  advancement  of  other 
enlisted  men,  to  advance  printers  to  the  ratings  of  printer,  first  class,  and  chief 
printer,  which  ratings  are  hereby  authorized  with  same  pay  and  increases  al- 
lowed to  yeomen,  first  class,  and  chief  yeomen,  respectively:  And  'provided 
further.,  That  the  rating  of  storekeeper  is  hereby  established  in  the  artificer 
branch  with  the  following  rates  of  pay  per  month:  Chief  petty  officer,  $50; 
petty  officer,  first  class,  $40;  petty  officer,  second  class,  $35;  petty  officer, 
third  class,  $30,  subject  to  such  increases  of  pay  and  allowances  as  are  or  may 
hereafter  be  authorized  by  law  for  the  enlisted  men  of  the  Navy. — (39  Stat., 
575,  chap.  417.) 


See  note  to  section  1569,  Revised  Statutes,  for 
later  enactments  as  to  the  ratings  and  pay 


of  enlisted  men;  and  see  particularlv  act 
of  June  4,  1920  (41  Stat.,  836). 


1423 


Aug.  29,  1916. 


Pt.  3.  STATUTES  AT  LARGE.       Commissioned  Personnel. 


[1916,  Aug.  29.  Midshipmen,  appointments  allowed  President  and  Secretary 

of  the  Navy.] 

This  provision  reads  as  follows:  "Hore- 
aftorin  addition  to  tho  ai>]iointnH'nt  of  niidship- 
nu'ii  to  the  I'lutod  States  Naval  Academy,  as 
now  ])rof!cnl)cd  l)y  law,  the  President  is  hereby 
allowed  lil'teen  apiKiintiiients  annually  instead 
often  as  now  prescribed  by  law,  and  the  Secre- 
tary of  the  Navy  is  allowed  twenty-five  ap- 
l>ointnients  annually,  instead  of  fifteen  as  now 
]>rescribed  by  law,  the  latter  to  be  appointed 
from  the  enlisted  men  of  the  Navy  who  are 
citizens  of  the  United  States,  and  not  more  than 
twenty  years  of  age  on  the  date  of  entrance  to 
the  Naval  Academv,  and  who  shall  have  served 


not  less  than  one  year  as  enlisted  men  on  the 
date  of  entrance:  Provided,  That  such  appoint- 
ments shall  be  made  in  the  order  of  merit  from 
candidate's  who  have  in  competition  with  each 
other  passed  the  mental  examination  now  or 
hereafter  required  by  law  for  entrance  to  the 
Naval  Academy,  and  who  passed  the  physical 
examinations  required  before  entrance  under 
existing  laws."     (39  Stat.,  576,  chap.  417.) 

It  was  superseded  bv  acts  of  March  4, 
1917  (39  Stat.,  1182),  and  December  20, 1917  (40 
Stat.,  430),  noted  under  section  1513,  Revised 
Statutes. 


[1916,  Aug.  29.  Filipino  students,  Naval  Academy.]  Tliat  hereafter  the 
Secretary  of  the  Navy  is  authorized  to  permit  not  exceeding  four  Filipinos,  to 
be  designated,  one  for  each  class,  by  the  Governor  General  of  the  Pliilippine 
Islands,  to  receive  instruction  at  the  United  States  Naval  Academy  at  An- 
napolis, Maryland:  Provided,  That  the  Filipinos  undergoing  instruction,  as 
herein  authorized,  shall  receive  the  same  pay,  allowances,  and  emoluments, 
to  be  paid  out  of  the  same  appropriations,  and  shall  be  subject  to  the  same  rules 
and  regulations  governing  admission,  attendance,  discipline,  resignation,  dis- 
charge, dismissal,  and  graduation  as  are  authorized  by  law  and  regulation  for 
midshipmen  appointed  from  the  United  States,  but  the  Filipino  midshipmen 
herein  authorized  shall  not  be  entitled  to  appointment  to  any  commissioned 
office  in  the  United  States  Navy  by  reason  of  their  graduation  from  the  Naval 
Academy.— (39  Stat.,  576,  chap.  417.) 

See  note  to  section  1513,  Revised  Statutes,  under  " Students  from  the  Philippine  Islands." 

COMMISSIONED    PERSONNEL. 

[1916,  Aug.  29.  Number  of  commissioned  officers,  line  of  the  Navy.]  Here- 
after the  total  number  of  commissioned  officers  of  the  active  list  of  the  line 
of  the  Navy,  exclusive  of  commissioned  warrant  officers,  shall  be  four  per 
centum  of  the  total  authorized  enlisted  strength  of  the  active  list,  exclusive  of 
the  Hospital  Corps,  prisoners  undergoing  sentence  of  discharge,  enlisted  men 
detailed  for  duty  with  the  Naval  Militia,  and  the  Flying  Corps. — (39  Stat.,  576, 
chap.  417.) 

By  act  of  June  4,  1920,  section  2  (41  Stat., 
834),  it  was  provided  that  "'the  number  of 
commissioned  officers  of  the  line,  perma- 
nent, temporary,  and  reserve,  on  active 
duty  shall  not  exceed  4  per  centum  of 
the  total  authorized  enlisted  strength 
of  the  Regular  Navy;  *  *  *  that 
nothing  herein  shall  be  construed  as  reduc- 
ing the  permanent  commissioned  *  *  * 
strength  of  the  Regular  Navy  as  authorized 
by  existing  law." 

As  to  total  authorized  enlisted  strength  of 
the  Navy,  see  note  to  section  1417,  Re- 
vised Statutes. 

As  to  number  of  commissioned  officers  in  the 
staff  corps,  see  provisions  of  this  act  (39 
Stat.,  577),  set  forth  below. 

As  to  number  of  commissioned  line  officers, 
additional  numbers,  etc.,  see  notes  to 
sections  1363-1364,  Revised  Statutes. 


As  to  warrant  officers  and  commissioned  war- 
rant officers,  see  note  to  section  1405,  Re- 
\nsod  Statutes. 
The  words  "total  number  of  commis- 
sioned officers  of  the  active  list  of  the  line 
of  the  Navy,"  refer  to  the  total  authorized 
number  of  commissioned  line  officers  of  the 
active  list,  as  distinguished  from  the  actual 
numlier  of  such  officers  in  the  Navy  at  any 
one  time.  But  no  officers  are  included  except 
those  who  are  "commissioned"  officers  in  the 
literal  sense;  hence,  these  words  can  not  be 
construed  to  embrace  acting  ensigns,  acting 
lieutenants  of  the  junior  grade,  who  are  not 
commissioned  by  the  President,  and  addi- 
tional number  officers  are  not  included.  (File 
28687-4,  Sept.  16,  1916.) 


1424 


Commissioned  Persomiei:       Ft.  3.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


[1916,  Aug.  29.  Distribution  in  grades  of  line  oflacers.]  That  the  total 
number  of  commissioned  line  officers  on  the  active  list  at  any  one  time,  exclusive 
of  commissioned  warrant  officers,  shall  be  distributed  in  the  proportion  of  one 
of  the  grade  of  rear  admiral  to  four  in  the  grade  of  captain,  to  seven  in  the  grade 
of  commander,  to  fourteen  in  the  grade  of  lieutenant  commander,  to  thirty- 
two  and  one-half  in  the  grade  of  lieutenant,  to  forty-one  and  one-half  in  the 
grades  of  lieutenant  (junior  grade)  and  ensign,  inclusive.— (39  Stat.,  576, 
chap.  417.) 

See  provisions  of  this  act  (39  Stat.,  577),  set 

forth    below,    as   to    computations   to    be 

made  by  the  Secretary  of  the  Navy  to 

determine  the  number  of  officers  in  each 

grade   and    rank;   distribution   of   officers 

between  the  upper  and  lower  halves  of 

the  rank  of  rear  admiral;  disjjosition  of 

fractional    numbers    resulting    from    com- 
putations;   and    exclusion    of    additional 

number  officers  from  computations. 
See    notes    to    sections    1362-1364,     Revised 

Statutes,  as  to  grades  of  line  officers,  etc. 
"Total   number    of    commissioned   line 
officers    on    the    active    list    at    any    one 
time." — These  words  refer  to  the  actual  num- 


ber of  commissioned  line  officers  on  the  active 
list,  as  distinguished  from  the  authorized 
number.  They  do  not  include  anyone  who 
is  not  actually  a  commissioned  officer  at  the 
time  under  consideration.  Thus,  one  com- 
missioned after  July  1  in  any  year  could 
not  be  counted  as  one  of  the  commissioned 
officers  on  the  active  list  July  1  of  that  year, 
notwithstanding  that  his  commission  when 
subsequently  issued  might  bear  date  as  of 
July  1  or  prior  thereto.  (File  28687-4,  Sept.  16, 
1916.  Compare  act  of  July  1,  1918,  40  Stat., 
716,  providing  that  midshipmen  may  be  com- 
missioned "'effective"  from  date  of  graduation.) 


[1916,  Aug.  29.  Promotions  to  lieutenant;  length  of  service.]  That  lieu- 
tenants (junior  grade)  shall  have  had  not  less  than  three  years'  service  in 
that  grade  before  being  eligible  for  promotion  to  the  grade  of  lieutenant. — 
(39  Stat.,  576,  chap.  417.) 

See  act  of  June  4,  1920,  section  5  (41  Stat., 

836),   which  suspended  the  operation  of 

this  provision  until  June  30,  1923. 
See  act  of  March  3,  1899,  section  7  (30  Stat., 

1005),  as  to  promotion  of  ensigns  to  lieu- 


tenants (junior  grade),  after  three  years, 
service. 
See     notes    to     section     1561-1562,     Revised 
Statutes,  as  to  commencement  of  pay  on 
promotion. 


[1916,  Aug.  29.  Number  of  commissioned  officers,  staff  corps.]  The  total 
authorized  number  of  commissioned  officers  of  the  active  list  of  the  following 
staff  corps,  exclusive  of  commissioned  warrant  officers,  shall  be  based  on  per- 
centages of  the  total  number  of  commissioned  officers  of  the  active  list  of  the  line 
of  the  Navy  as  follows : 

Pay  Corps,  twelve  per  centum;  Construction  Corps,  five  per  centum;  Corps 
of  Civil  Engineers,  two  per  centum;  and  that  the  total  authorized  number  of 
commissioned  officers  of  the  Medical  Corps  shall  be  sixty-five  one  hundredths 
of  one  per  centum  of  the  total  authorized  number  of  the  officers  and  enlisted 
men  of  the  Navy  and  Marine  Corps,  including  midshipmen.  Hospital  Corps, 
prisoners  undergoing  sentence  of  discharge,  enlisted  men  detailed  for  duty  with 
the  Naval  Militia,  and  the  Flying  Corps. — (39  Stat.,  576,  chap.  417.) 

The    designation    of    the    "Pay    Corps"    was 

changed   to    "Supply   Corps"    by   act   of 

July  11,  1919  (41  Stat.,  417). 
By  act  of  June  4,  1920,  section  2  (41  Stat.,  834), 

it  was  provided  that  "the  number  of  com- 
missioned officers  of  the  line,  permanent, 

temporary,    and   reserve   on   active   duty 

shall  not  exceed  4  per  centum  of  the  total 

authorized  enlisted  strength  of  the  Regular 

Navy,  and  the  number  of  staff  officers  on 

active  duty  of  whatever  kind  shall  be  in 


the  same  proportions  as  authorized  by  ex- 
isting law;  *  *  *  that  nothing  herein 
shall  be  construed  as  reducing  the  perma- 
nent commissioned  or  enlisted  strength  of 
the  Regular  Navy  as  authorized  by  existing 
law. " 
Medical  Corps:  See  note  to  section  1368,  Revised 
Statutes.  As  to  total  authorized  niunber  of 
enlisted  men  of  the  Navy,  see  note  to 
section  1417,  Re\-ised  Statutes;  as  to  au- 
thorized number  of  midshipmen,  see  note 


1425 


Aug.  29,  1916. 


Pt.  S.  STATUTES  AT  LARGE.       Commissioned  Persomiel. 


to  section  1513,   Revised   Statutes;  as  to 

authorized     commissioned     and     enlisted 

strensrth  of  the  Marine  Corps,  see  note  to 

section  1596,  Re\-ised  Statutes. 
Dental    Corps:  See    act    of    August    29,    1916 

(39  Stat.,  573-574). 
Supply  Corps:  See  note  to  section  1376,  Revised 

Statutes. 
Chajilain  Corps:  See  note  to  section  1395,  Re- 

\'ised  Statutes,  and  see  act  of  June  30,  1914 

(38  Stat.,  403). 
Professors  of  Mathematics:  See  note  to  section 

1399,  Re\ised  Statutes. 
Construction  Corps:  See  notes  to  sections  1402- 

1403,  Re\'ised  Statutes. 
Civil  Engineer  Corps:  See  note  to  section  1413, 

Revised  Statutes. 
Warrant   officers    and    commissioned    warrant 

officers:  See  note  to  section  1405,  Revised 

Statutes. 
"Total  authorized  number  of  commis- 
sioned oflB-cers  of  the  active  list  of  the 
*  *  *  staflE  corps." — These  words  refer  to 
the  total  authorized  number  of  commissioned 
officers  of  the  active  list  of  the  staff  corps  con- 
cerned, as  distinfjuished  from  the  actual  niunber 
of  such  officers  m  the  Nav>'  at  any  one  time. 


'    Additional     numbers     not     included.       (File 
j    28687-4,  Sept.  16,  1916.) 

I       To  ascertain  the   "authorized"   number  of 
!    commissioned  staff  officers  in  the  various  corps 
i    concerned,  exclusive  of  commissioned  warrant 
i    officers,  the  total  authorized  number  of  commis- 
sioned line  officers  of  the  active  list  is  taken  as  a 
basis,  and  not  the  actual  number  of  commis- 
sioned line     fficers.     (File  28687-4,  Sept.  16, 
1916.) 

To  ascertain  the  total  authorized  number  of 
commissioned  officers  of  the  Medical  Corps,  the 
•'total  authorized  number  of  the  officers  and  en- 
listed men  of  the  Navy  and  Marine  Corps"  is 
taken  as  the  basis;  these  words  are  used  in  the 
law  in  the  broad  sense,  which  includes  every 
person  authorized  for  the  active  list  of  the 
regular  naval  service.  Where  the  total  ''au- 
thorized "  niunber  is  not  fixed  by  law,  as  in  the 
cases  of  some  warrant  and  commissioned  war- 
rant officers,  the  computation  may  be  based 
upon  the  actual  number  of  such  officers;  but 
in  other  cases,  the  computation  should  be  fjased 
upon  the  "total  authorized  niunber"  and  not 
the  actual  number.  (File  28687-4,  Sept.  16, 
1916.) 


[1916,  Aug.  29.  Advancement  of  staff  officers  below  lieutenant  commander; 
rank  of  assistant  surgeons.]  Officers  of  the  lower  grades  of  the  Medical  Corps, 
Pay  Corps,  Construction  Corps,  and  Corps  of  Civil  Engineers  shall  be  advanced 
in  rank  up  to  and  including  the  rank  of  lieutenant  commander  with  the  officers 
of  the  line  with  whom  or  next  after  whom  they  take  precedence  under  existing 
law:  Provided,  That  all  assistant  surgeons  shall  from  date  of  their  original 
appointment  take  rank  and  precedence  with  lieutenants  (junior  grade). — (39 
Stat.,  576-577,  chap.  417.) 

struction    Corps:    see   sections    1402-1403, 
1477_,   and   1480,    Revised   Statutes;   Civil 
Engineer  Corps:  see  sections  1413,    1478, 
and    1480,     Revised    Statutes;    Chaplain 
Corps:  see  act  of  June  30,  1914  (38  Stat., 
403),    and    notes    to    sections    1479-1480, 
Revised    Statutes;    professors    of    mathe- 
matics: see  note  to  section  1480,  Re^dsed 
Statutes;  Dental  Corps:  see  act  of  August  29, 
_  1916  (39  Stat.,  573-574). 
This  pro\'ision  as  to  advancement  of  staff  offi- 
cers to   higher  ranks   was   suspended   in 
certain  cases  until  June  30,  1923:  see  act 
of  June  4,  1920  (41  Stat.,  836). 
Advancement  in   rank   with   line    ofl&- 
cers. — Tliis  enactment  is  substantially  iden- 
tical -with  the  long  established  prior  practice  of 
advancing  staff  officers  to  higher  ranks  with. 
their  "running  mates,"  which  found  expres- 
sion in  the  Navy  Regulations  (e.  g.,  art.  1005 
(f),  Na^'y  Regs.  1913).     The  pre\'ious  practice 
was  not  changed  by  this  enactment,  and  as  that 
practice  was  to  advance  staff  officers  in  rank 
on  the  date  their  running  mates  in  this  line  be- 
came due  for  promotion,  regardless  of  whether 
or  not  the  latter  qualified  for  promotion  as  of 
that   date,    and   not   necessaiily   contempora- 
neously with  their  line  running  mates,  the  same 
rule  should  be  applied  under  this  enactment. 
(File  28687-4:1,  Sept.  16,  1916.) 


By  act  of  May  22, 1917,  section  17  (40  Stat.,  89), 
it  was  pro\-ided  that  nothing  contained  in 
this  act  "shall  operate  to  disturb  the  rela- 
tive position  of  officers  in  the  ^ledical 
Corps  -with  reference  to  precedence  or  pro- 
motion, but  all  such  officers  otherwise 
qualified  shall  he  advanced  in  rank  ^^ith  or 
ahead  of  officers  in  said  corps  who  were 
their  juniors  on  the  date  of  said  act. " 

A  provision  with  reference  to  assistant  civil 
engineers,  similar  to  the  above  pro\iso 
relating  to  assistant  surgeons,  was  embodied 
in  act  of  March  4,  1917  (39  Stat.,  1184). 

As  to  advance  ment  of  staff  officers  to  the  ranks 
of  commander,  captain,  and  rear  admirals, 
see  act  of  July  1,  1918  (40  Stat.,  718). 

As  to  change  in  designation  of  "Pay  Corps"  to 
"Supply  Corps,"  see  act  of  July  11,  1919 
(41  Stat.,  147). 

As  to  precedence  of  line  and  staff  officera,  see 
sections  1485-1486,  Re\dsed  Statutes,  and 
notes  thereto. 

Examinations  required  for  advancement  in 
rank  of  staff  officers:  See  sections  1493  and 
1496,  Re\ised  Statutes,  and  act  of  Mav  22, 
1917,  section  20  (40  Stat.,  89). 

Rank  and  promotion  in  Medical  Corps:  see  sec- 
tions 1371,  1474,  and  1480,  Revised  Sta- 
tutes; Supply  Corps:  see  sections  1380, 
1475,   and    1480,    Revised    Statutes;   Con- 


1426 


Commissioned  Persomiel.      Pt.  3.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


Rank  of  assistant  surgeons. — The  proviso 
in  the  act  of  August  29,  1916,  as  to  the  rank  of 
assistant  sui'geous  is  explicit;  in  order  to  give 
effect  thereto,  certain  officers  in  the  grade  of 
assistant  surgeon  on  the  date  of  that  act  must  be 
given  precedence  mth  the  line  officers  who  were 
lieutenants  (junior  grade)  when  such  assistant 
surgeons  were  originally  appointed,  and  "mth 
whom  or  next  after  whom"  the  assistant  sur- 


geons in  question  took  precedence  on  date  of 
appointment;  the  assistant  surgeons  in  question 
will  thus  in  some  cases  be  given  precedence 
ahead  of  certain  passed  assistant  surgeons,  but 
this  is  a  matter  which  can  be  remedied  only  by 
Congress.  (File  11130-37,  Jan.  19,  1917.  See 
actof  May  22, 1917,  sec.  17,  above  quoted,  which 
was  enacted  to  remedy  this  situation.) 


[1916,  Aug.  29.  Computations;  authorized  number  in  each  rank,  line  and 
staff.]  That  to  determine  the  authorized  number  of  officers  in  the  various 
grades  and  ranks  of  the  line  and  of  the  staff  corps  as  herein  provided,  computa- 
tions shall  be  made  by  the  Secretary  of  the  Navy  semiannually,  as  of  July  first 
and  January  first  of  each  year,  and  the  resulting  numbers  in  the  various  grades 
and  ranks,  as  so  computed,  shall  be  held  and  considered  for  all  purposes  as  the 
authorized  number  of  officers  in  such  various  grades  and  ranks  and  shall  not 
be  varied  between  such  dates. — (39  Stat.,  577,  chap.  417.) 


This  provision  Avas  amended  by  act  of  July  11, 
1919  (41  Stat.,  139),  which  provided  that 
"the  provision  of  existing  law  which  re- 
quires the  Secretary  of  the  Navy  to  make 
computations  semiannually  as  of  July  1 
and  January  1  of  each  year  *  *  *  is  here- 
by amended  so  that  said  computations  shall 
be  made  *  *  *  at  least  once  each  year 
and  at  such  times  as  the  Secretary  of  the 
Navy  may  direct    *    *    *." 

See  provisions  of  this  act  (39  Stat.,  577),  set 
forth  below,  as  to  distribution  of  officers 
between  upper  and  lower  halves  in  the 
rank  of  rear  admiral;  disposition  of  frac- 
tional numbers  in  computation  of  officers; 
and  exclusion  of  additional  number  officers 
from  computations. 
The  words,  "such,  dates,"  as  used  in  the 

act  of  August  29,  1916,  referred  specifically  to 

the  dates  of  July  1  and  January  1  of  each  year; 

accordingly,  the  provision  against  varying  the 


number  of  officers  between  those  dates  resulted 
in  preventing  additional  appointments  of  com- 
missioned officers  except  on  the  dates  men- 
tioned and  not  between  those  dates.  By  act  of 
May  22,  1917,  section  6  (40  Stat.,  86),  the  Secre- 
tary of  the  Navy  was  authorized,  during  the 
existing  war,  to  make  computations  on  July  1 
and  January  1  of  each  year,  ' '  and  at  such  other 
times  as  he  may  deem  necessary."  This  enact- 
ment suspended  temporarily  the  restriction 
contained  in  the  act  of  August  29,  1916,  upon 
varying  the  number  of  officers  between  specified 
dates,  and  permitted  of  daily  computations  if 
the  Secretary  considered  such  action  advisa- 
ble. The  result  was  that  additional  appoint- 
ments of  commissioned  officers  in  the  lowest 
grades,  line  and  staff,  could  be  made  under 
said  provision  of  May  22,  1917,  at  anv  time  that 
eligibles  became  available.  (File  28687-22, 
June  14,  1917.) 


[1916,  Aug.  29.  Staff  officers,  distribution  in  grades;  appointments  in 
Medical  and  Construction  Corps;  qualifications.]  The  total  number  of  com- 
missioned officers  of  the  active  list  of  the  following  mentioned  staff  corps  at  any 
one  tune,  exclusive  of  commissioned  warrant  officers,  shall  be  distributed  in 
the  various  grades  of  the  respective  corps  as  follows: 

IMedical  Corps  :  One-half  medical  directors  with  the  rank  of  rear  admiral 
to  four  medical  directors  with  the  rank  of  captain,  to  eight  medical  inspectors 
with  rank  of  commander,  to  eighty-seven  and  one-half  in  the  grades  below 
medical  mspector :  Provided,  That  hereafter  appointees  to  the  grade  of  assistant 
surgeon  shall  be  between  the  ages  of  twenty-one  and  thirty-two  at  the  time  of 
appomtment. 

Pay  Corps  :  One-half  pay  directors  with  the  rank  of  rear  admiral  to  four 
pay  directors  with  the  rank  of  captain,  to  eight  pay  inspectors  with  the  rank  of 
commander,  to  eighty-seven  and  one-half  in  the  grades  below  pay  inspector. 

Construction  Corps:  One-half  naval  constructors  with  the  rank  of 
rear  admiral  to  eight  and  one-half  naval  constructors  with  the  rank  of  captain, 
to  fourteen  naval  constructors  with  the  rank  of  commander,  to  seventy-seven 
naval  constructors  and  assistant  naval  constructors  with  rank  below  com- 


1427 


Aug.  29,  1916. 


Pt.  S.  STATUTES  AT  LARGE.       Commissioned  Personnel. 


mander:  Provided,  That  vacancies  in  the  Construction  Corps  shall  bo  filled  in 
the  manner  now  proscribed  by  law,  at  such  annual  rate  as  the  Secretary  of  the 
Navy  may  proscribe:  Provided  further,  That  hereafter  ensigns  of  not  less  than 
one  year's  service  as  such  shall  be  eligible  for  transfer  to  the  Construction  Corps. 
Corps  of  Ci\T[l  Engineers:  One-half  civil  engineers  w^ith  the  rank  of 
roar  admiral  to  five  and  one-half  civil  engineers  with  the  rank  of  captain,  to 
fourteen  civil  engineers  w'ith  the  rank  of  commander,  to  eighty  civil  engineers 
and  assistant  civil  engineers  with  the  rank  below  commander. — (39  Stat.,  577, 
chap.  417.) 

The    designation    of    the    "Pay    Corps"    was 

chantjed  to  "Supply  Corps"  by  act  of  Julv 

11,  1919  (41  Stat.,  147). 
As  to  number  and  rank  of  officers  in  the  staff 

corps,  see  the  following  citations:  Medical 

Corps:  sections    1368    and    1474,    Re^dsed 

Statutes;  Supply  Corps:  sections  1376  and 

1475,  Revised  Statutes;  Construction  Corps: 

sections   1402,    1403,    and    1477,    Revised 

Statutes;    Civil    Engineer    Corps:  sections 

1413  and  1478,  RcNised  Statutes;  Chaplain 

Corps:  sections    1395   and    1479,    Revised 

Statutes,  and  act  of  June  30,  1914  (38  Stat., 

403);   Professors  of  mathematics:  sections 

1399  and  1480,  Rc^-ised  Statutes;  Dental 

Corps:  act  of  August  29,    1916  (39  Stat., 

573-574). 
See  note  to  section  1480,  Revised  Statutes,  as 

to  filling  of  vacancies  in  the  rank  of  rear- 

admiial  under  this  provision;  and  see  act 

of  July  1,1918  (  40  Stat.,  718),  as  to  advance- 


ment by  selection  to  the  ranks  of  com- 
mander, captain,  and  rear  admiral  in  the 
staff  corps  of  the  Navy. 

Qualifications  for  appointment  as  assistant 
surgeon:  See  section  1370,  Re\ised  Stat- 
utes, and  note  thereto. 

Vacancies  in  the  Construction  Corps,  how 
filled:  See  sections  1402-1403,  Revised 
Statutes,  and  notes  thereto. 

Computations  to  determine  number  of  officers 
in  each  grade  and  rank  in  certain  staff 
corps:  See  pro\'ision  of  this  act  (39  Stat., 
577),  set  forth  above. 

See  below  (39  Stat.,  577),  as  to  distribution  of 
officers  between  upper  and  lower  halves  of 
rear  admiral,  disposition  of  fractional 
numbers  resulting  from  computations, 
and  exclusion  of  additional-number  offi- 
cers in  making  computations. 

See  above  as  to  distribution  in  grades  of  line 


officers. 

[1916,.  Aug.  29.  Professors  of  mathematics,  no  further  appointments.]  Here- 
after no  further  appointments  shall  be  made  to  the  Corps  of  Professors  of 
Mathematics,  and  that  corps  shall  cease  to  exist  upon  the  death,  resignation, 
or  dismissal  of  the  officers  now  carried  in  that  corps  on  the  active  and  retired 
lists  of  the  Navy.— (39  Stat.,  577,  chap.  417.) 

See  sections  1399-1401,  and  1480,  Revised  Statutes,  and  notes  thereto. 

[1916,  Aug.  29.  Rear  admirals,  distribution  between  upper  and  lower  halves.] 
When  there  is  an  odd  number  of  officers  in  the  grade  or  rank  of  rear  admiral 
in  the  line  or  in  each  corps,  the  lower  division  thereof  shall  include  the  excess 
in  number,  except  where  there  is  but  one. —  (39  Stat.,  577,  chap.  417.) 

act   (39    Stat.,    577-578),  set  forth  below, 
as  to  pay  of  rear  admirals. 


See  note  to  section  13G2,  Revised  Statutes,  as 
to  division  of  rear  admirals  into  two  grades 
for  pay  purposes;  and  see  provision  of  this 


[1916,  Aug.  29.  Computations,  disposition  of  fractional  numbers.]  Whenever 
a  final  fraction  occurs  in  computing  the  authorized  number  of  any  corps,  grade 
or  rank  in  the  naval  service,  the  nearest  whole  munber  shall  be  regarded  as  the 
authorized  number:  Provided,  That  at  least  one  officer  shall  be  allowed  in  each 
grade  or  rank. —  (39  Stat.,  577,  chap.  417.) 

line  or  in  a  staff  corps  authorized  for  the  period 
following  the  computations,  while  in  other 
cases,  the  result  may  be  a  shortage  of  one  in 
such  total  authorized  number.  The  provisions 
of  the  law  in  this  respect  are  confiicting,  and 
under  such  circumstances  the  total  number 
authorized  for  the  line  or  the  particular  corps 


Total  number  of  officers  not  to  be  ex- 
ceeded.— In  comjjutiug  the  authorized  num- 
ber of  officers  in  the  various  grades  and  ranks 
in  the  manner  prescribed,  by  taking  the  near- 
est whole  number  whenever  a  final  fraction 
occurs,  the  result  may  be  in  some  cases  an 
excess  of  one  officer  in  the  total  number  of  the 


1428 


Commissioned  Persomiel.       Ft.  3.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


concerned  shotild  control;  this  may  be  done 
by  adding  one  officer  to  the  authorized  number 
in  the  lowest  grade  or  rank,  or  subtracting  one 
therefrom,  as  the  case  may  be,  in  order  to  make 
the  total  number  conform  to  the  total  number 
authorized  for  the  period  involved.  (File 
28687-1,  Sept.  16,  1916.) 


Computations  in  Marine  Corps.  —The 
words  "naval  ser\-ice"'  as  used  in  this  provision 
Anth  reference  to  final  fractions  in  computing 
the  number  of  officers,  etc.,  include  the  Marine 
Corps.  (File  28687-5,  Aug.  29,  1916;  see  note 
to  sec.  1596,  R.  S.,  "Computing  number  of 
officers.") 


[1916,  Aug.  29.  Computations;  additional  number  officers  excluded;  no  re- 
duction in  any  staff  grade.]  For  the  purpose  of  determining  the  authorized 
number  of  officers  in  any  grade  or  rank  of  the  Ime  or  of  the  staff  corps,  there 
sliall  be  excluded  from  consideration  those  officers  cari'ied  by  law  as  additional 
numbers,  including  staff  officers  heretofore  permanently  commissioned  witli  the 
rank  of  rear  admiral,  and  nothing  contained  herein  shall  be  held  to  reduce 
below  that  heretofore  authorized  by  law  the  number  of  officers  in  any  grade  or 
rank  in  the  staff  corps. — (39  Stat.,  577,  chap.  417.) 

See  note  to  section  1363,  Revised  Statutes,  as  to 
additional  number  officers;  see  note  to  sec- 
tion 421,  Re\dsed  Statutes,  under  "Rank 
of  chiefs  of  bmreaus,"  with  reference  to  the 
act  of  June  24,  1910  (36  Stat.,  607,  repealed 
by  act  of  August  22,  1912.  37  Stat.,  328), 
under  which  certain  staff  officers  were 
commissioned  with  the  permanent  rank  of 
rear  admii'al  on  the  active  list  prior  to  the 
act  of  August  29,  1916;  and  see  act  of 
March  4,  1915  (cited  in  note  to  sec.  1478, 
R.  S.\  under  which  an  officer  in  the  CiA-il 
Engineer  Corps  was  commissioned  \riX\i  the 
permanent  rank  of  rear  admiral  on  the 
active  list. 
See  notes  to  sections  1368,  1376,  1395,  1399, 
1402,   1403,  and  1413,  Re\ised  Statutes,  as 


to  numbers  of  officers  authorized  in  the  va- 
rious staff  corps. 
Additional  number  oflB.cers. — While  there 
are  many  references  in  the  act  of  August  29, 
1916,  to  additional  number  officers,  which  show 
that  Congress  was  familiar  with  the  legislation 
on  that  subject,  there  is  nothing  in  said  act 
which  expressly  indicates  that  Congi'ess  in- 
tended to  repeal  prior  laws  relating  thereto  and 
to  proAdde  that  additional  number  officers 
should  become  regular  numbers  on  promotion; 
instead,  the  act  indicates  the  contrary;  accord- 
ingly, held,  that  officers  who  are  additional 
numbers  in  grade  continue  to  be  additional 
numbers  after  promotion  bv  selection.  (File 
28687-11,  Jan.  2,  1917.) 


[1916,  Aug.  29.  Rea,r  admirals,  pay  and  allowances.]  Hereafter  pay  and 
allowances  of  officers  in  the  upper  half  of  the  grade  or  rank  of  rear  admiral, 
including  the  staff  corps  and  including  staff  officers  heretofore  permanently 
conmiissioned  with  the  rank  of  rear  admiral,  shall  be  that  now  allowed  by  law 
for  the  first  nine  rear  admirals,  and  the  pay  and  allowances  of  officers  in  the 
lower  half  of  the  grade  or  rank  of  rear  admiral,  including  the  staff  corps,  shall 
be  that  now  allowed  by  law  for  the  second  nine  rear  admirals. — (39  Stat.,  577- 
578,  chap.  417.) 

See  note  to  section  1362,  Revised  Statutes,  as 
to  division  of  rear  admii'als  into  two  gi'ades 
for  pay  purposes;  see  note  to  section  1556, 
Re^dsed  Statutes,  as  to  pay  of  rear  admirals; 
see  notes  to  sections  1487  and  1558,  Re\'ised 
Statutes,  as  to  allowances;  and  see  note  to 


section  421,  Revised  Statutes,  under  "Rank 
of,  chiefs  of  bureaus,"  and  note  to  section 
1478,  Re\dsed  Statutes,  as  to  staff  officers 
permanently  commissioned  \vith  the  rank 
of  rear  admiral  on  the  active  list  prior  to 
the  act  of  August  29,  1916. 


[1916,  Aug.  29.  Rank  by  date  of  commission,  staff  corps;  exceptions.]  That 
officers  shall  take  rank  in  each  staff  corps  according  to  the  dates  of  commission 
in  the  several  grades,  excepting  in  cases  where-  they  have  gained  or  lost 
numbers. — (39  Stat.,  578,  chap.  417.) 

See  notes  to  sections  1485-1486,  RoAosed  Statutes. 

[1916,  Aug.  29.  Commissioned  warrant  officers,  pay  and  allowances.]  Here- 
after chief  boatswains,  chief  gunners,  chief  machinists,  chief  carpenters,  chief 
sail  makers,  chief  pharmacists,  and  chief  pay  clerks,  on  the  active  list  with 


1429 


Aug.  20,  1916. 


Ft.  S.  STATUTES  AT  LARGE.       Commissioned  Persomiel. 


creditable  records,  shall,  after  six  years  from  date  of  commission,  receive  the 
pay  and  allowances  that  are  now  or  may  hereafter  be  allowed  a  lieutenant 
(junior  grade).  United  States  Navy:  Provided,  That  chief  boatswains,  chief 
gunners,  chief  machinists,  chief  carpenters,  chief  sail  makers,  chief  pharmacists, 
and  chief  pay  clerks,  on  the  active  list  with  creditable  records,  shall,  after  twelve 
years  from  date  of  commission,  receive  the  pay  and  allowances  that  are  now  or 
may  hereafter  be  allowed  a  lieutenant,  United  States  Navy. — (39  Stat.,  578, 
chap.  417.) 

See  note  to  section  1556,  Revised  Statutes,  under  "25.  Warrant  officers,  acting  warrant 
officers,  and  commissioned  warrant  officers." 

[1916,  Aug.  29.  Warrant  officers,  heat  and  light;  leave  of  absence.]  War- 
rant officers  shall  receive  the  same  allowances  of  heat  and  light  as  are  now  or 
may  hereafter  be  allowed  an  ensign,  United  States  Navy. 

Warrant  officers  shall  be  allowed  such  leave  of  absence,  with  full  pay,  as 
is  now  or  may  hereafter  be  allowed  other  officers  of  the  United  States  Navy. — 
(39  Stat.,  578,  chap.  417.) 

See  note  to  section  1487,  Revised  Statutes,  as 
to   allowance   of   quarters  and   heat  and 


light  therefor. 


See  note  to  section   1556,    Revised   Statutes, 
under  "40.  Absence  from  duty.  " 


[1916,  Aug.  29.  Promotion  by  selection,  line  officers.]  Hereafter  all  pro- 
motions to  the  grades  of  commander,  captain,  and  rear  admiral  of  the  line  of 
the  Navy,  including  the  promotion  of  those  captains,  commanders,  and  lieu- 
tenant commanders  who  are,  or  may  be,  carried  on  the  Navy  list  as  additional 
to  the  numbers  of  such  grades,  shall  be  by  selection  only  from  the  next  lower 
respective  grade  upon  the  recommendation  of  a  board  of  naval  officers  as  herein 
provided.— (39  Stat.,  578,  chap.  417.) 


The  provisions  of  this  act  relating  to  promotion 
by  selection  were  extended,  with  certain 
modifications,  to  the  staff  corps  by  act  of 
July  1,  1918  (40  Stat.,  718). 

By  act  of  July  11,  1919  (41  Stat.,  147),  it  was 
provided:  "That  the  provisions  of  the  Act 
of  August  29,  1916,  regarding  the  promo- 
tion of  captains  in  the  line  of  the  permanent 
Navy  shall  not  restrict  the  promotion  of 
such  captains  as  may  have  been  wounded 
in  line  of  duty  and  who  are  now  on  tlie 
active  list,  and  such  captains  shall  be 
entitled  to  the  benefits  of  the  provisions  of 
section  1494,  Revised  Statutes  of  the 
United  States,  and  also  to  the  benefits  of 
the  Act  of  March  4,  1911." 

The  requirement  of  this  provision,  that  promo- 
tions be  made  "from  the  next  lower 
respective  grade, "  was  suspended  in  cer- 
tain cases  until  June  30,  1923,  by  act  of 
June  4,  1920,  section  5  (41  Stat.,  836), 
having  previously  been  suspended  in  the 
same  class  of  cases  by  act  of  July  11,  1919 
(41  Stat.,  140). 

See  note  to  section  1458,  Revised  Statutes,  on 
general  subject  of  promotion. 


Selection  law  not  applicable  to  tem- 
porary promotions. — This  act  clearly  relates 
to  promotions  in  the  permanent  Navy.  The 
act  of  May  22,  1917  (40  Stat.,  85),  authorized 
temporary  promotions  to  all  grades,  without 
making  any  express  provision  as  to  the  manner 
in  which  such  promotions  were  to  be  made: 
Held,  that  such  temporary  promotions  above 
the  grade  of  lieutenant  commander  may  be 
made  without  compliance  with  the  selection 
law  of  August  29,  1916;  but  that  the  provisions 
of  said  law  may  be  extended  by  regulations  to 
such  temporary  promotions  if  deemed  advisable. 
(File  28687-22,  June  14,  1917.) 

The  Secretary  of  the  Navy  established  a 
procedure  with  reference  to  the  selection  of 
officers  for  temporary  promotion  somewhat 
similar  to  that  recjuired  by  the  act  of  August 
29,  1916,  ^\itli  reference  to  permanent  promo- 
tions: Held,  that  this  did  not  have  the  effect  of 
making  any  provision  of  said  act  of  August  29, 
1916,  applicable  to  such  temporary  promotions, 
but  was  merely  a  procedure  administratively 
adopted  which  was  not  binding  upon  the  Sec- 
retary, who  could  modify  same  if  he  deemed  it 
advisable  to  do  so.  (File  26521-230:5,  Feb. 
1,  1918.) 

[1916,  Aug.  29.  Selection  board;  proceedings.]  The  board  shall  consist  of 
nine  rear  admirals  on  the  active  list  of  the  line  of  the  Navy  not  restricted  by 
law  to  the  performance  of  shore  duty  only,  and  shall  be  appointed  by  the  Sec- 


1430 


Commissioned  Persomiel.      Pt.  3.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


retary  of  the  Navy  and  convened  during  the  month  of  December  of  each  year 
and  as  soon  after  the  first  day  of  the  month  as  practicable. 

Each  member  of  said  board  shall  swear,  or  affirm,  that  he  will,  without 
prejudice  or  partiality,  and  havmg  m  view  solely  the  special  fitness  of  officers 
and  the  efficiency  of  the  naval  service,  perform  the  duties  imposed  upon  him 
as  herein  provided. 

The  board  shall  be  furnished  by  the  Secretary  of  the  Navy  with  the  number 
of  vacancies  in  the  grades  of  rear  admiral,  captain,  and  commander  to  be  filled 
during  the  following  calendar  year,  including  the  vacancies  existing  at  the 
tune  of  the  convening  of  the  board  and  those  that  will  occur  by  operation  of 
law  from  the  date  of  convenmg  until  the  end  of  the  next  calendar  year,  and  with 
the  names  of  all  officers  who  are  eligible  for  consideration  for  selection  as  herein 
authorized,  together  with  the  record  of  each  officer:  Provided,  That  any  officer 
eligible  for  consideration  for  selection  shall  have  the  right  to  forward  through 
official  channels  at  any  time  not  later  than  ten  days  after  the  convening  of  said 
board  a  written  communication  invitmg  attention  to  any  matter  of  record  in 
the  Navy  Department  concerning  himseH  which  he  deems  important  in  the 
consideration  of  his  case :  Provided,  That  such  communication  shall  not  contain 
any  reflection  upon  the  character,  conduct,  or  motives  of  or  criticism  of  any 
officer.— (39  Stat.,  578,  chap.  417.) 


Amendment  to  this  pro^dsion  was  made  by  act 
of  July  11,  1919  (41  Stat.,  139),  as  follows: 
"The    provision    of    existing   law    which 
requires  the  Secretar>^  of  the  ^axy    *    *    * 
to  convene  the  boards  to  select  officers  of 
the  line  and  of  the  staff  corps  for  promotion 
is  hereby  amended  so  that    *    *    *    said 
boards  shall  be  convened  at   least  once 
each  year  and  at  such  times  as  the  Secre- 
tary  of  the  Na\'y  may   direct,   and  the 
boards    shall    recommend    for    promotion 
such  number  of  officers  as  may  be  nec- 
essary to  fill  vacancies  then  existing  and 
which  may  occur  diuing  the  next  period 
of  time." 
The  provisions  of  this  act  as  to  promotion  by 
selection    were    extended,    with    certain 
modifications,  to  the  staff  corps  by  act  of 
July  1,1918  (40  Stat.,  718). 
See  note  to  section  1499,   Re^dsed  Statutes, 
under  "Records  submitted  to  Board  on 
Selection  for  promotion. " 
Date    of  vacancy    on   retirement. — The 
retirement  of  an  officer  on  his  own  application, 
pursuant  to  section   1443,    Re%Tsed   Statutes, 
takes  effect,  so  as  to  create  a  vacancy  which 
may  be  filled  by  the  appointing  power,  on  the 
date  when  his  application  for  retirement  is 
approved  by  the  President,  and  is  not  deferred 
untU  the  date  he  receives  notice  of  the  Presi- 
dent's action.     (32  Op.  Atty.  Gen.,  176.     See 
also  notes  to  sees.  1444  and  1458,  R.  S.) 

Membership  of  selection  board. — Offi- 
cers of  the  line  of  the  Navy  who  have  c}ualified 
for  the  permanent  rank  of  rear  admiral,  and 
who  have  been  commissioned  as  such  by  the 
President  during  a  recess  of  the  Senate,  are 


qualified  for  8er^•ice  as  members  of  the  selection 
board  pro^•ided  bv  the  act  of  August  29,  1916. 
(FUe  28687-31,  Oct.  11,  1920.) 

Additional  number  officers,  if  recom- 
mended for  promotion,  will  not  become  regular 
numbers  if  promoted,  and  are  therefore  in  ad- 
dition to  the  number  of  vacancies  as  furnished 
the  selection  board.  (File  28687-11,  Jan.  2, 
1917.) 

Names  of  officers  previously  selected 
but  not  promoted  must  be  submitted  to  the 
next  selection  board,  if  otherwise  eligible  for 
consideration.  Under  the  act  of  August  29, 
1916,  the  officer's  eligibility  for  promotion  after 
favorable  recommendation  by  a  selection  board 
continued  until  the  end  of  the  following  cal- 
endar year;  if  no  vacancy  occtured  in  the  next 
higher  gi'ade  to  which  he  could  be  promoted 
dmingthat  calendar  year,  he  became  ineligible 
for  promotion  unless  again  recommended  by  a 
selection  board.  BvactofMav22, 1917,  section 
6  (40  Stat.  86),  the  Secretary  of  the  Navy  was 
authorized,  during  the  existing  war,  to  convene 
selection  boards ' '  at  such  times  as  the  exigencies 
of  the  ser"vice  may  require."  Under  this 
amendment,  an  officer  recommended  by  a 
special  board  so  convened  continued  eligible 
for  promotion  only  during  such  indefinite 
period  as  might  intervene  between  the  date 
that  his  eligibility  attached  and  the  convening 
of  the  next  following  board  for  selection;  and 
if  no  vacancy  occurred  for  him  in  the  meantime, 
his  name  was  required  to  be  furnished  to  the 
new  board,  if  still  eligible  for  consideration. 
(File  28687-22,  June  20,  1917;  28687-22:1, 
Dec.  27,  1918.) 


1431 


Aug.  29,  1916. 


Ft.  3.  STATUTES  AT  LARGE.       Commissioned  Persomiel. 


Tem.porary  promotions. — The  require- 
ment as  to  four  years'  service  in  o;rade  before 
becoming  eligible  for  consideration  by  the 
selection  board  does  not  a]5ply  with  respect  to 
temporary  promotions  under  the  act  of  May  22, 
1917  (40  Stat.,  85);  but  the  President  may' pre- 
scribe a  similar  requirement  for  temporary  pro- 
motion if  he  deems  such  action  advisable. 
(File  28687-22,  June  14,  1917.) 


[1916,  Aug.  29.  Service  in  grade  necessary  before  selection.]  That  no 
captains,  commanders,  or  lieutenant  commanders  who  shall  have  had  less 
than  four  years'  service  in  the  grade  in  which  he  is  serving  on  November  the 
thu-tieth  of  the  year  of  the  convening  of  the  board  shall  be  eligible  for  considera- 
tion by  the  board. — (39  Stat.,  578,  chap.  417.) 

This  requirement  as  to  length  of  service  in 

grade  not  applicable  to  the  selection  of 

staff  officers  under  the  act  of  Jxily  1,  1918 

(40  Stat.,  718). 
This  requirement  as  to  length  of  service  in 

gi'ade  was  suspended  in  certain  cases  until 

June  30,  1923,  by  act  of  Juno  4,  1920,  sec- 
tion 5  (41  Stat.,  836),  having  previously 

been  suspended  until  July  1,  1920,  in  the 

same  class  of  cases,  by  act  of  July  11,  1919 

(41  Stat..  140). 

[1916,  Aug.  29.  Engineer  officers,  eligibility  for  selection;  additional 
numbers.]  That  the  recommendation  of  the  board  in  the  case  of  officers  of  the 
former  Engineer  Corps  who  are  restricted  by  law  to  the  performance  of  shore 
duty  only  and  in  that  of  officers  who  may  hereafter  be  assigned  to  engineering 
duty  only  shall  be  based  upon  their  comparative  fitness  for  the  duties  pre- 
scribed for  them  by  law.  Upon  promotion  they  shall  be  carried  as  additional 
numbers  in  grade. — (39  Stat.,  578-579,  chap.  417.) 

See  note  to  section  1390,  Revised  Statutes,  for 

laws  relating  to  officers  for  engineering  duty 

only;  and  see  note  to  section  1363,  Revised 

Statutes,   for  laws  relating  to  additional 

officers. 
See  provisions  of  this  act  (39  Stat.,  579),'  set 

forth  below,  as  to  recommendation  of  selec- 
tion board  and  exemption  from  sea  service 

in  the  cases  of  engineer  officers;  and  see 

below  (39  Stat.,  584),  as  to  promotion  of 

officers  commissioned  for  aeronautic  duty 

only. 

[1916,  Aug.  29.  Number  of  officers  recommended  for  promotion;  six  members 
of  board  must  concur.]  The  board  shall  recommend  for  promotion  a  number 
of  officers  in  each  grade  equal  to  the  number  of  vacancies  to  be  filled  in  the  next 
higher  grade  during  the  following  calendar  year:  Provided,  That  no  officer 
shall  be  recommended  for  promotion  unless  he  shall  have  received  the  recom- 
mendation of  not  less  than  six  members  of  said  board. — (39  Stat.,  579,  chap. 
417.) 

Amendment  to  this  provision  was  made  by  act 
of  July  11,  1919  (41  Stat.,  139),  which  pro- 
vided for  selection  boards  being  convened 
' '  at  such  times  as  the  Secretary  of  the  Navy 
may  direct,"  and  further  provided  that 
"the  boards  shall  recommend  for  promo- 
tion such  number  of  officers  as  may  be  neces- 
sary to  fill  vacancies  then  existing  and 
which  may  occur  during  the  next  period 
of  time." 


Additional  number  officers  continue  to  be 
additional  numbers  after  promotion  by  selec- 
tion. This  provision  \Y\th.  reference  to  engi- 
neer officers  indicates  that  it  was  not  the  piu"- 
pose  of  Congress  to  abolish  additional  number 
officers  with  reference  to  higher  grades  in  the 
Une  filled  by  selection.  Prior  laws  relating  to 
additional  number  officers  are  not  repealed  by 
the  act  of  August  29,  1916,  nor  do  such  officers 
become  regular  numbers  on  promotion.  (File 
28687-11,  Jan.  2,  1917.) 


As  to  selection  of  staff  officers,  see  act  of  Julv  1, 

1918  (40  Stat.,  718). 
As  to  form  of  board's  recommendation,  see  below 
(39  Stat.,  579). 
Additional  number  officers,  if  recom- 
mended for  promotion,  will  not  become  regular 
numbers  when  promoted,  but  mil  continue  to 
be  additional  numbers  in  their  grade;  they  are 
therefore  in  addition  to  the  number  of  vacancies 
as  furnished  the  selection  board.  (File 
28687-11,  Jan.  2,  1917.) 


[1916,  Aug.  29.  Annual  appointment  of  captains  limited.     Repealed.] 


This  provision  read  as  follows: 
■'That  the  increase  in  the  number  of  captains 
herein  authorized  shall  be  made  at  the  rate  of 
not  more  than  ten  captains  in  any  one  year." 


(39  Stat.,  579,  chap.  417.) 

It  was  expressly  repealed  by  act  of  May 
22,  1917,  section  14  (40  Stat.,  87). 


1432 


Commissioned  Personnel. 


Ft.  3.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


[1916,  Aug.  29.  Recommendation  of  selection  board  to  be  in  writing,  etc. ; 
report  as  to  engineer  officers.]  The  report  of  the  board  shall  be  in  writing 
signed  by  all  of  the  members  and  shall  certify  that  the  board  has  carefully  con- 
sidered the  case  of  every  officer  eligible  for  consideration  under  the  provisions 
of  this  law,  and  that  in  the  opinion  of  at  least  six  of  the  members,  the  officers 
therein  recommended  are  the  best  fitted  of  all  those  under  consideration  to 
assume  the  duties  of  the  next  higher  grade,  except  that  the  recommendation  of 
the  board  in  the  case  of  officers  of  the  former  Engineer  Corps  who  are  restricted 
by  law  to  the  performance  of  shore  duty  only,  and  in  that  of  officers  "who  may 
hereafter  be  assigned  to  engineering  duty  only,  shall  be  based  upon  their  com- 
parative fitness  for  the  duties  prescribed  for  them  by  law. — (39  Stat.,  579, 
chap.  417.) 


See  above  (39  Stat.,  578-579),  as  to  engineer 
officers;  and  see  below  (39  Stat.,  584),  as 
to  promotion  of  officers  commissioned  for 
aeronautic  duty  only. 


See  act  of  July  1,  1918  (40  Stat.,  718),  as  to 
selection  of  staff  officers. 


[1916,  Aug.  29.  President's  action;  reconvening  of  selection  board.]  The 
report  of  the  board  shall  be  submitted  to  the  President  for  approval  or  disap- 
proval. In  case  any  officer  or  officers  recommended  by  the  board  are  not 
acceptable  to  the  President,  the  board  shall  be  informed  of  the  name  of  such 
officer  or  officers,  and  shall  recommend  a  number  of  officers  equal  to  the  number 
of  those  found  not  acceptable  to  the  President  and  if  necessary  shall  be  recon- 
vened for  this  purpose. —  (39  Stat.,  579,  chap.  417.) 


As  to  action  by  the  President  in  the  cases  of 
retiring  and  promotion  boards,  see  notes  to 
sections  1452  and  1502,  Revised  Statutes. 


See  note  to  Constitution,  Article  II,  section  2, 
clause  2,  as  to  President's  power  with  re- 
spect to  appointment  and  promotion  of 
officers;  see  also  notes  to  sections  1458  and 
1480,  Ile\'ised  Statutes,  on  the  same  sub- 
ject. 

[1916,  Aug.  29.  President's  approval  of  selection  board's  report;  profes- 
sional and  physical  examinations  required ;  rank  on  promotion  or  retirement.] 
When  the  report  of  the  board  shall  have  been  approved  by  the  President,  the 
officers  recommended  therein  shall  be  deemed  eligible  for  selection,  and  if 
promoted  shall  tal^e  rank  with  one  another  in  accordance  with  their  seniority 
in  the  grade  from  which  promoted:  Provided,  That  any  officers  so  selected 
shall  prior  to  promotion  be  subject  in  all  respects  to  the  examinations  prescribed 
by  law  for  officers  promoted  by  seniority,  and  in  case  of  failure  to  pass  the 
required  professional  examination  such  officer  shall  thereafter  be  ineligible  for 
selection  and  promotion.  And  should  any  such  officer  fail  to  pass  the  requii'ed 
physical  examination  he  shall  not  be  considered,  in  the  event  of  retirement, 
entitled  to  the  rank  of  the  next  higher  grade. — (39  Stat.,  579,  chap.  417.) 

Examinations  for  promotion:  see  sections  1493- 

1505,  Re\Tsed  Statutes. 
See  act  of  March  4,  1911  (36  Stat.,  1267),  which 

was  modified  by  this  provision  as  to  the 

rank  of  officers  retired  after  failure  to  pass 

the  physical  examination  for  promotion. 

By  act  of  July  11,  1919  (41  Stat.,  147),  this 

restriction  on  retired  rank  was  made  in- 
applicable to   any   captain  then  on  the 

active  list  who  had  been  wounded  in  line 

of  duty.    (See  note  to  sec.  1494,  R.  S.) 


Eligibility  for  selection;  when  termi- 
nated.— Under  the  act  of  August  29,  1916,  an 
officer's  eligibility  for  selection  continued  until 
the  end  of  the  calendar  year  following  the  favor- 
able recommendation  of  the  board.  Under  the 
amendment  of  May  22,  1917  (40  Stat.,  86), 
which  authorized  the  Secretary  to  convene 
selection  boards  "at  such  times  as  the  exigen- 
cies of  the  service  may  require,"  officers  re- 
commended by  a  board  so  convened  continued 
eligible  only  until  the  next  board  was  con. 


1433 


Aug.  29,  1916. 


PL  3.  STATUTES  AT  LARGE.       Commissioned  Persomi«l. 


voned.  If  no  vacancies  occurred  to  which  they 
could  be  ])roniotcd  durinfi;  the  calendar  year, 
in  the  one  case,  or,  in  the  other,  during  the 
period  until  the  next  selection  board  was  con- 
vened, their  elip:ibility  for  i)romotion  ceased, 
unless  they  were  again  selected;  and  their 
names,  11  6ther\\ise  eligible  for  consideration, 
must  be  submitted  to  the  next  selection 
board.  (File  28687-22,  June  20,  1917;  28687- 
22  : 1,  Dec.  27,  1918.) 

Examinations  after  selection. — An  officer 
examined  professionally  and  physically  prior 


to  being  recommended  for  promotion  by  the 
selection  board,  must  be  reexamined  after  selec- 
tion for  promotion.  (File  26521-337,  June  23, 
1919,  citing  26260-3630  :  2.) 

The  requirements  of  the  selection  law,  in- 
cluding examinations  prior  to  promotion,  were 
not  applicable  to  temporary  promotions  author- 
ized by  act  of  May  22,  1917;  but  the  President 
had  power  to  make  regulations  requiring  such 
examinations  before  promotion  if  he  deemed 
such  action  advisable.  (File  28687-22,  June 
14,  1917.) 


[1916,  Aug.  29.  Sea  service  and  age  requirements  for  promotion;  excep- 
tions.] On  and  after  June  thirtieth,  nineteen  hundred  and  twenty,  no  captain 
commander,  or  lieutenant  commander  shall  be  promoted  unless  he  has  had 
not  less  than  two  years'  actual  sea  service  on  seagoing  ships  in  the  grade  in 
which  serving  or  who  is  more  than  fifty-six,  fifty,  or  forty-five  years  of  age, 
respectively:  Provided,  That  in  exceptional  cases  where  officers  are  specifically 
designated  during  war  or  national  emergency  declared  by  the  President  by  the 
Secretary  of  the  Navy  as  performing,  or  as  having  performed,  such  highly 
important  duties  on  shore  that  their  services  can  not  be  or  could  not  have 
been  spared  from  such  assignment  without  serious  prejudice  to  the  successful 
prosecution  of  the  war,  the  qualification  of  sea  service  in  the  cases  of  those 
officers  so  specifically  designated  shall  not  apply  while  the  United  States  is  at 
war,  or  during  a  national  emergency  declared  by  the  President,  or  within  two 
and  one-half  years  subsequent  to  the  ending  of  such  war  or  national  emergency: 
Provided,  That  the  qualification  of  sea  service  shall  not  apply  to  officers 
restricted  to  the  performance  of  engineering  duty  only. — (39  Stat.,  579,  chap. 
417;  40  Stat.,  717-718,  chap.  114.) 

This  paragraph  was  expressly  amended  to  read 
as  above  by  act  of  July  1,  1918  (40  Stat., 
717-718),  which  inserted  therein  the  first 
proviso  above  set  forth,  relating  to  shore 
duty  in  time  of  war  or  emergency.  (See 
Joint  Res.,  Mar.  3, 1921,  41  Stat.,  1359,  as  to 
constructive  termination  of  war  with  Ger- 
many and  Austria-Hungary.) 

By  act  of  July  11, 1919  (41  Stat.,  140),  the  "age 
and  grade  "  requirement  prescribed  by  tMs 
act  "in  the  rank  of  commander"  was 
' '  extended  from  June  30,  1920,  to  June  30, 
1921;"  and  by  act  of  June  4,  1920,  section 
10  (41  Stat.,  837),  "the  age  limits  for  pro- 
motion by  selection"  were  "deferred  until 
June  30,  1921 "  in  the  cases  of  officers  "who 
mav  request  such  deferment." 

By  act' of  July  11,  1919  (41  Stat.,  140),  aU 
'•  statutory  requirements  other  than  profes- 
sional and  physical  examinations,"  with 
respect  to  promotion  by  selection  were  sus- 
pended in  certain  cases  until  July  1,  1920; 

[1916,  Aug.  29.  Retirement  of  oflacers  ineligible  for  selection.]  That  captains, 
commanders,  and  lieutenant  commanders  who  become  ineligible  for  promotion 
on  account  of  age  shall  be  retired  on  a  percentage  of  pay  equal  to  two  and  one- 
half  per  centum  of  their  shore-duty  pay  for  each  year  of  service:  Provided 
further.  That  the  total  retired  pay  shall  not  exceed  seventy-five  per  centum  of 
the  shore-duty  pay  they  were  entitled  to  receive  while  on  the  active  list. — (39 
Stat.,  579,  chap.  417.) 

1434 


and  by  act  of  June  4,  1920,  section  5,  (41 
Stat.,  836),  all  such  requirements  "other 
than  age  and  professional  and  physical 
examination"  were  similarly  suspended 
in  certain  cases  until  June  30,  1923. 

See  other  special  provisions  of  this  act,  set  forth 
above,  with  respect  to  promotion  by  selec- 
tion of  engineer  officers;  and  see  special 
provisions  of  this  act  (39  Stat.,  584),  set 
forth  below,  as  to  promotion  of  officers 
commissioned  for  aeronautic  duty  only. 

By  act  of  June  4,  1920,  section  5  (41  Stat.,*836)^ 
the  requirements  of  this  provision  as  to  age. 
limits  for  promotion  were  suspended  in  the 
cases  of  officers  appointed  to  the  line  from 
sources  other  than  the  Naval  Academy,  as. 
authorized  by  that  act,  until  they  have 
rendered  10  years'  service  in  the  grade  oi 
lieutenant  commander,  six  years  in  the 
grade  of  commander  or  eight  vears  in  the 
grade  of  captain. 


Engineering  Duty.  Pt.  3.  STATUTES  AT  LARGE.  Aug.  29,  1916. 

See    sections    1443-1465,    and    1588,     Revised    1    See  acts  of  March  3,  1883  (22  Stat.,  473),  and 
Statutes,  for  general  provisions  relating  to  June  10,  1896  (29  Stat.,  361),  and  note  to 

retirement.  section  1443,  Revised  Statutes,  as  to  service 

credited  for  retirement,  etc. 

[1916,  Aug.  29.  Retiring  age,  64  years.]  Except  as  herein  otherwise  provided, 
hereafter  the  age  for  retirement  of  all  officers  of  the  Navy  shall  be  sixty-four 
years  instead  of  sixty-two  years  as  now  prescribed  by  law. —  (39  Stat.,  579, 
chap.  417.) 

See  sections  1444,  1481,  and  1588,  Revised  Statutes. 

[1916,  Aug.  29.  Rank  and  pay  not  reduced.]  Nothing  contained  in  this  Act 
shall  be  construed  to  reduce  the  rank,  pay,  or  allowances  of  any  officer  of  the 
Navy  or  Marine  Corps  as  now  provided  by  law. —  (39  Stat.,  579,  chap.  417.) 

OFFICERS    FOR    ENGINEERING    DUTY    ONLY. 

[1916,  Aug.  29.  Detail  of  line  officers  for  engineering  duty.]  Officers  of  the 
line  of  the  Navy  not  below  the  grade  of  lieutenant  may,  upon  application,  and 
with  the  approval  of  the  Secretary  of  the  Navy,  be  assigned  to  engineering  duty 
only,  and  that  when  so  assigned  and  until  they  reach  the  grade  of  commander, 
they  shall  perform  duty  as  prescribed  in  section  four  of  the  Personnel  Act 
approved  IVlarch  third,  eighteen  hundred  and  ninety-nine,  and  thereafter  shore 
duty  only  as  now  prescribed  for  officers  transferred  to  the  line  from  the  former 
engineer  corps,  except  that  commanders  may  be  assigned  to  duty  as  fleet  and 
squadron  engineers:  Provided,  That  when  so  assigned  they  shall  retain  their 
place  ^vith  respect  to  other  line  officers  in  the  grades  they  now  or  may  hereafter 
occupy,  and  also  the  right  to  succession  to  command  on  shore  in  accordance 
with  their  seniority,  and  shall  be  promoted  as  vacancies  occur  subject  to  physi- 
cal examination  and  to  such  examination  in  engineering  as  the  Secretary  of  the 
Navy  may  prescribe:  Provided  further,  That  the  number  of  officers  so  assigned 
in  any  one  year  shall  be  in  accordance  with  the  requirements  of  the  service  as 
determined  by  the  Secretary  of  the  Navy. — (39  Stat.,  580,  chap.  417.) 


See  acts  of  March  3,  1899,  section  4  (30  Stat., 
1005),  February  16,  1914,  section  21  (38 
Stat.,  283),  and  March  3, 1915  (38  Stat.,  930); 
see  also  notes  to  sections  1390-1394  Re- 
\'ised  Statutes. 


See  pro\dsions  of  this  act  (39  Stat.,  578-579),  as 
to  promotion  by  selection  of  officers 
assigned  to  engineering  duty  only. 


[1916,  Aug.  29.  Acting  ensigns  for  engineering  duty ;  appointment  and  pro- 
motion.] That  the  Secretary  of  the  Navy  is  hereby  authorized  to  appoint 
annually  in  the  line  of  the  Navy  for  a  period  of  ten  years  follo^sdng  the  passage 
of  this  Act,  in  the  order  of  merit  determined  by  such  competitive  examination 
as  he  may  prescribe,  thirty  acting  ensigns  for  the  performance  of  engineering 
duties  only.  Persons  so  appointed  must  have  received  a  degree  of  mechanical 
or  electrical  engineer  from  a  college  or  university  of  high  standing  or  be  gradu- 
ates of  technical  schools  approved  by  the  Secretary  of  the  Navy,  must  have  been 
found  physically  qualified  by  a  board  of  medical  officers  of  the  Navy  for  the 
performance  of  the  duties  required,  and  must  at  the  time  of  appointment  be 
not  less  than  twenty  nor  more  than  twenty-six  years  of  age.  Such  appoint- 
ments shall  be  for  a  probationary  period  of  three  years,  and  may  be  revoked  at 
any  time  by  the  Secretary  of  the  Navy. 

54641°— 22 91  1435 


Aug.  29,  1916. 


Pt.S.  STA  TIJTES  A  T  LARGE. 


Engineering  Duty. 


See  section  1410,  Revised  Statutes,  and  note 
thereto,  as  to  status  of  "acting"'  officers. 


Such  acting  ensigns  shall,  upon  the  completion  of  the  probationary  period 
of  three  years,  of  which  two  years  shall  have  been  spent  on  board  cruising  vessels 
and  one  year  pursuing  a  course  of  instruction  at  the  Naval  Academy  prescribed 
by  the  Secretary  of  the  Navy,  be  commissioned  in  the  grade  of  lieutenant  of 
the  junior  grade  after  satisfactorily  passing  such  examination  as  may  be  pre- 
scribed by  the  Secretary  of  the  Navy,  and  having  been  recommended  for  pro- 
motion by  the  examining  board  and  found  physically  qualified  by  a  board  of 
medical  officers  of  the  Navy. 

Such  officers  shall  thereafter  be  required  to  perform  engineering  duties  only, 
and  shall  be  eligible  for  advancement  to  the  higher  grades  in  the  manner  herein 
provided  for  line  officers  assigned  to  engineering  duty  only. — (39  Stat.,  580, 
chap.  417.) 

See  note  above  under  this  act  (39  Stat.,  576), 
as  to  number  of  commissioned  officers  not 
including  acting  ensigns. 

[1916,  Aug.  29.  Absence  due  to  misconduct.]  Hereafter  no  officer  or  enhsted 
man  in  the  Navy  or  Marine  Corps  in  active  service  who  shall  be  absent  from 
duty  on  account  of  injury,  sickness  or  disease  resulting  from  his  own  intem- 
perate use  of  drugs  or  alcoholic  liquors,  or  other  misconduct,  shall  receive  pay 
for  the  period  of  such  absence,  the  time  so  absent  and  the  cause  thereof  to  be 
ascertained  under  such  procedure  and  regulations  as  may  be  prescribed 
by  the  Secretary  of  the  Navy:  Provided,  That  an  erdistment  shall  not  be 
regarded  as  complete  until  the  enlisted  man  shaU  have  made  good  any  time 
in  excess  of  one  day  lost  on  account  of  injury,  sickness  or  disease  resulting 
from  his  own  intemperate  use  of  drugs  or  alcoholic  liquors,  or  other  miscon- 
duct.—(39  Stat.,  580,  chap.  417;  40  Stat.,  717,  chap.  114.) 

Revised  vStatutes,  article  8,  under  "Making 
good  time  lost  by  absence;"  note  to  Con- 
stitution, Article  I,  section  9,  clause  3,  as 
to  bills  of  attainder;  and  notes  to  sections 
1418  and  1608,  Revised  Statutes,  as  to  de- 
tention of  men  after  expii-ation  of  enlist- 
ment. 


This  paragraph  was  expressly  amended  to  read 
as  above  by  act  of  July  1,  1918  (40  Stat., 
717),  which  inserted  therein,  in  two  places, 
the  word  "injury"  followed  by  a  comma. 

See  note  to  section  1556,  Revised  Statutes, 
under  "40.  Absence  from  duty;"  note  to 
section  1569,  Revised  Statutes,  under  "13. 
Forfeiture  of  pay;"  note  to  section  1624, 


[1916,  Aug.  29.  Furloughs  in  lieu  of  discharge.]  The  Secretary  of  the  Navy 
is  hereby  authorized  to  grant  furlough  without  pay  to  enlisted  men  for  a  period 
covering  the  unexpired  portion  of  their  enlistment:  Provided,  That  such  fur- 
lough be  granted  under  the  same  conditions  and  in  lieu  of  discharge  by  purchase 
or  by  special  order  of  the  department.  Enlisted  men  so  furloughed  shall  be 
subject  to  recall  in  time  of  war  or  national  emergency  to  complete  the  unex- 
pired portion  of  their  enlistment,  and  shall  be  in  addition  to  the  authorized 
number  of  enlisted  men  of  the  Navy. — (39  Stat.,  580-581,  chap.  417.) 


As  to  discharge  by  purchase,  see  act  of  March  3, 
1893  (27  Stat.,  717);  as  to  refund  of  enlist- 
ment bounty  by  men  discharged  within 
six  months  of  enlistment,  see  act  of  June 
29,  1906  (34  Stat.,  556);  and  as  to  refund  on 


discharge  within  12  months  of  enlistment 
in  certain  cases,  see  act  of  March  2,  1907 
(34  Stat.,  1176). 
See  note  to  section  1417,  Revised  Statutes,  imder 
"Enlisted  men  furloughed  without  pay." 


[1916,  Aug.  29.  Red  Cross,  detail  of  medical  officers  to.]  Hereafter  the 
authorized  number  of  surgeons  in  the  United  States  Navy  be,  and  it  is  hereby, 
increased  by  one;  and  that  hereafter  the  Secretary  of  the  Navy  be,  and  he  is 


1436 


Flying  Corps. 


Pt.  3.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


hereby,  authorized  to  detail  one  or  more  officers  of  the  Medical  Corps  of  the 
United  States  Navy  for  duty  with  the  Mihtary  Relief  Division  of  the  American 
National  Red  Cross. — (39  Stat.,  581,  chap.  417.) 

See  note  to  section  T368,  Revised  Statutes,  as  to       See  act  of  April  24,  1912  (37  Stat.,  90-91),  and 
authorized    number    of    medical    officers;  Joint  Resolution  of  May  8,  1914  (38  Stat., 

and  see  provision  of  this  act  (39  Stat.,  576),  771),  relating  to  the  Red  Cross, 

set  forth  above,  as  to  number  of  commis- 
sioned officers  of  the  Staff  Corps. 

[1916,  Aug.  29.  Retired  officer  on  duty  with  General  Board.] 


This  provision  read  as  follows: 
"No  officer  who,  after  having  commanded  a 
fleet  in  active  commission,  has  been  retired  for 
age  and  whom,  in  the  judgmentof  the  Secretary 
of  the  Na\-y,  the  public  interests  make  it  neces- 
sary to  retain  for  a  time  after  said  retii'ement  and 
who  is  performing  active  duty  as  chairman  of 
the  executive  committee  of  the  General  Board, 


shall,  for  the  period  so  retained,  suffer  any 
reduction  in  the  emoluments  he  was  receiving 
at  the  time  of  his  retirement."  (39  Stat.,  581, 
chap.  417.) 

It  has  been  fully  executed,  and  is  no 
longer  in  force  or  effect.  The  officer  to  Avhom 
it  applied  was  Rear  Admiral  Charles  J.  Badger. 


[1916,  Aug.  29.  Pay  of  retired  officers  on  active  duty.]  That  hereafter  any 
retired  officer  of  the  naval  service  who  shall  be  detailed  on  active  duty  shall, 
while  so  serving,  receive  the  active  duty  pay  and  allowances  of  the  grade,  not 
above  that  of  lieutenant  commander  in  the  Navy  or  of  major  in  the  Marine 
Corps,  that  he  would  have  attained  in  due  course  of  promotion  if  he  had  re- 
mained on  the  active  list  for  a  period  beyond  the  date  or  his  retirement  equal 
to  the  total  amount  of  time  during  which  he  has  been  detailed  on  active  duty 
since  his  retirement:  Provided,  That  nothing  herein  shall  be  construed  to 
reduce  the  pay  of  any  retired  officer  on  active  duty  whose  retired  pay  exceeds 
the  active  duty  pay  and  allowances  for  the  grade  of  lieutenant  commander. — 
(39  Stat.,  581,  chap.  417.) 

See  note  to  section  1592,  Revised  Statutes,  for  other  laws  relating  to  pay  of  retired  officers 
on  active  duty. 

[1916,  Aug.  29.  Pay  and  allowances  of  commissioned  officers,  active  list.] 
Hereafter  all  commissioned  officers  of  the  active  list  of  the  Navy  shall  receive 
the  same  pay  and  allowances  according  to  rank  and  length  of  service :  Provided, 
That  this  provision  shall  not  be  construed  to  reduce  the  pay  and  allowances  of 
commissioned  warrant  officers  as  herein  authorized. — (39  Stat.,  581,  chap.  417.) 

As  to  effect  of  this  provision,  see  note  to  section       As  to  pay  of  commissioned  officers,  see,  gen- 
1556,  Revised  Statutes,  under  "23.  Chap-  erally,  note  to  section  1556,  Revised  Stat- 

lains  and  acting  chaplains."  utes;  as  to  allowances,  see  notes  to  sections 

1487  and  1558,  Re\'ised  Statutes. 


NAVAL   FLYIXG    CORPS. 

[1916,  Aug.  29.  Composition  of  Flying  Corps.]  The  Naval  Flying  Corps 
shall  be  composed  of  one  hundred  and  fifty  officers  and  three  hundred  and 
fifty  enlisted  men,  detailed,  appointed,  commissioned,  enhsted,  and  distributed 
in  the  various  grades,  ranks,  and  ratings  of  the  Navy  and  Marine  Corps  as 
hereafter  provided.  The  said  number  of  officers,  student  flyers,  and  enlisted 
men  shall  be  in  addition  to  the  total  number  of  officers  and  enlisted  men 
which  is  now  or  may  hereafter  be  provided  by  law  for  the  other  branches  of 
the  naval  service. — (39  Stat.,  582,  chap.  417.) 


1437 


Aug.  29,  1916. 


Ft.  3.  STATUTES  AT  LARGE. 


Flying  Corps. 


See  art  of  June  5,  1<»20  (41  Stat.,  9.54),  as  to 
distributiou  of  Army  and  Navy  aviation 
control. 


See  below  (.39  Stat.,  592),  as  to  Naval  Reserve 
Flying  Corps. 


[1916,  Aug.  29.  Detail  of  officers  to  actual  flying.]  The  number  of  ofRcers 
detailed  to  duty  in  aircraft  involving  actual  flying  in  any  one  year  shall  be  in 
accordance  with  the  requirements  of  the  Air  Service  as  determined  by  the 
Secretary  of  the  Navy:  Provided,  That  the  officers  so  detailed  from  the  line  of 
the  Navy  and  from  the  Marine  Corps  shall  not  exceed  the  total  number  herein 
prescribed  for  the  Naval  Flying  Corps:  Provided  further,  That  the  proportion 
of  line  ofRcers  of  the  Navy  and  of  the  Marine  Corps  thus  detailed  shall  be  the 
same  as  the  proportion  established  for  the  regular  services:  And  provided 
further,  That  the  student  flyers  hereinafter  provided  for  shall  be  in  addition  to 
the  officers  and  enlisted  men  comprising  the  Naval  Flying  Corps. — (39  Stat., 
582-583,  chap.  417.) 

[1916,  Aug.  29.  Pay  and  allowances.  Flying  Corps.]  The  ofRcers  detailed 
and  the  enlisted  men  of  the  Naval  Flying  Corps  shall  receive  the  same  pay  and 
allowances  that  are  now  provided  by  law  for  ofRcers  and  enlisted  men  of  the 
same  grade  or  rank  and  rating  in  the  Navy  and  Marine  Corps  detailed  to  duty 
with  aircraft  involving  actual  flying. — (39  Stat.,  583,  chap.  417.) 


By  act  of  July  1,  1918  (40  Stat.,  718),  increased 
allowances   for   aviation    duty   were   pro- 
hibited. 
See  act  of  March  3,  1915  (38  Stat.,  939),  and 
note  to  section   1556,   Revised   Statutes, 
under  "38.     Additional  pav   for   special 
duty." 
Number  and  pay  of  ofl&cers  detailed  to 
actual  flying. — Under  the  act  of  August  29, 
1916,  in  addition  to  the  number  of  officers  in 
the  regular  Naval  Flj-ing  Corps,  the  Secretary 
of  the  Navy  is  authorized  to  detail  for  duty 


involving  actual  flying  in  aircraft,  either  as  stu- 
dent aviators,  student  airmen,  or  qualified  naval 
aviators,  such  number  of  naval  officers,  not  in 
excess  of  the  number  prescribed  in  that  act 
for  the  regular  Flying  Corps,  as  he  shall  de- 
termine the  needs  of  the  air  service  require; 
and  while  so  detailed  such  officers  are  entitled 
to  50  per  cent  or  35  per  cent  increase  of  pay  and 
allowances,  according  as  they  have  or  have  not 
qualified  as  naval  aviators.  (23  Comp.  Dec, 
583.  But  see  act  of  July  1,  1918,  above  noted, 
as  to  increase  of  allowances.) 


[1916,  Aug.  29.  Acting  ensigns  and  acting  second  lieutenants  for  aeronautic 
duty.] 


These  paragraphs  read  as  foUows: 
"The  vSecretary  of  the  Navy  is  hereby 
authorized  to  appoint  annually  in  the  line  of 
the  Navy  and  the  Marine  Corps  for  a  period  of 
two  years  follomng  the  passage  of  this  Act,  in 
order  of  merit  as  determined  by  such  competi- 
tive examinations  as  he  may  prescribe,  fifteen 
acting  ensigns  or  acting  second  lieutenants  for 
the  jjerformauce  of  aeronautic  duties  only. 
Persons  so  appointed  must  be  citizens  of  the 
United  States,  and  may  be  appointed  from 
warrant  officers  or  enlisted  men  of  the  naval 
service  or  from  civil  life,  and  must,  at  the 
time  of  appointment,  be  not  less  than  eighteen 
or  more  than  twenty-four  years  of  age:  Provided, 
That  no  person  shall  be  so  api^ointed  until  he 
has  been  found  physically  qualified  by  a 
board  of  medical  officers  of  the  Navy  for  the 
performance  of  the  duties  required:  Provided 
further,  That  the  number  of  such  appointments 
to  the  line  of  tlie  Navy  and  of  the  Marine  Corps 
shall  be  in  the  proportion  decided  for  the 
regular  services.  Such  appointments  shall  be 
for  a  probationary  period  of  three  yeare  and  may 
be  revoked  at  any  time  by  the  Secretary  of 
the  Navy. 


"Such  acting  ensigns  and  acting  second  lieu- 
tenants shall  be  detailed  to  duty  in  the  Naval 
Flying  Corps  in  aircraft  involving  actual  flying. 

"Such  acting  ensigns  of  the  Navy  and  acting 
second  lieutenants  of  the  Marine  Corps  shall, 
upon  completion  of  the  probationary  period  of 
three  years,  be  appointed  acting  lieutenants 
of  the  junior  grade,  or  acting  first  lieutenants, 
respectively,  by  the  Secretary  of  the  Navy 
for  the  performance  of  aeronautic  duties  only, 
after  saiisfactorily  passing  such  examinations 
as  he  may  prescribe,  and  after  ha^dng  been 
recommended  for  promotion  by  the  examining 
board  and  found  physically  qualified  by  a 
board  of  medical  officers  of  the  Navy.  Such 
appointments  shall  be  for  a  probationary 
period  of  four  years  and  may  be  revoked  at  any 
time  by  the  Secretary  of  the  Navy. 

"Such  acting  lieutenants  (junior  grade)  and 
acting  first  lieutenants  may  elect  to  qualify  for 
aeronautic  duty  only  or  to  qualify  for  all  the 
duties  of  officers  of  the  same  grade  in  the  Navy 
and  in  the  Marine  Corps,  respectively.  ThoSe 
officers  who  elect  to  qualifj'  for  aeronautic 
duty  only  shall  be  detailed  to  duty  in  the 
Naval   Flying   Corps  involving  actual  flying 


1438 


Flying  Corps. 


PL  S.  STATUTES  A  T  LARGE. 


Aug.  29,  1916. 


in  aircraft.  Those  officers  who  elect  to  qualify 
for  the  regular  duties  of  their  grade  shall  be 
detailed  to  duty  in  the  regular  service  for  at 
least  two  years  to  allow  them  to  prepare  for 
such  qualification. 

"Such  acting  lieutenants  (junior  grade)  and 
acting  first  lieutenants  who  have  elected  to 
qualify  for  aeronautic  duty  only  shall,  upon 
completion  of  the  probationary  period  of  four 
years,  be  commissioned  in  the  grade  of  lieu- 
tenant of  the  line  of  the  Navy  or  captain  of 
the  Marine  Corps  for  aeronautic  duties  only, 
after  satisfactorily  passing  such  competitive 
examination  as  may  be  prescribed  by  the 
Secretary  of  the  Navy  to  determine  their 
moral,  physical,  and  professional  qualifica- 
tions for  such  commissions  and  the  order  of 
rank  in  which  they  shall  be  commissioned. 
Such  lieutenants  for  aeronautic  duty  only 
shall  be  borne  on  the  list  as  extra  numbers, 
taking  rank  with  and  next  after  officers  of  the 
same  date  of  commission.  (39  Stat.,  583, 
chap.  417.) 

"Such  acting  lieutenants  (junior  grade) 
and  acting  first  lieutenants  who  have  elected 
to  qualify  for  the  regular  duties  of  the  line  of 
the  Navy  and  of  the  Marine  Corps,  respectively, 
shall,  upon  completion  of  the  probationary 
period  of  four  years,  two  years  of  which  shall 
have  been  on  such  regular  duties,  be  commis- 
sioned in  the  grade  of  the  line  of  the  Navy  or 
Marine  Corps  according  to  his  length  of  service, 
after  passing  satisfactorily  such  competitive 
examinations  as  may  be  prescribed  by  the 
Secretary  of  the  Navy  to  determine  their 
moral,  physical,  and  professional  qualifications 
for  such  commissions  and  to  determine  the 


order  of  rank  in  which  they  shall  be  commis- 
sioned. Such  officers  of  the  line  of  the  Navy 
and  Marine  Corps  will  be  borne  upon  the  lists 
of  their  respective  corps  as  extra  numbers, 
taking  rank  with  and  next  after  officers  of  the 
regular  services  of  the  same  date  of  commissions. 

"Acting  lieutenants  (junior  grade)  of  the 
line  of  the  Navy  for  aeronautic  duties  only 
and  acting  first  lieutenants  of  the  Marine  Corps 
for  aeronautic  duty  only  who  have  completed 
the  probationary  period  of  four  years  may, 
upon  examination  for  commissions  to  the  next 
higher  grade,  if  recommended  by  the  board  of 
examination,  be  transferred  to  the  Naval 
Reserve  Flying  Corps  and  commissioned  in 
the  same  grade  or  the  next  higher  grade  as  may 
be  recommended  in  accordance  with  their 
qualifications  as  determined  by  the  examina- 
tion: Provided,  That  at  any  time  during  such 
probationary  period  any  such  officer  can,  upon 
his  own  request,  if  his  record  warrants  it,  be 
transferred  to  the  Naval  Reserve  Flying  Corps 
and  commissioned  in  the  acting  grade  he  then 
holds.  Any  officer  of  the  Naval  Flying  Corps 
holding  an  appointment  of  student  flyer  or 
acting  ensign,  second  lieutenant,  lieutenant 
(junior  grade),  or  first  lieutenant,  who,  upon 
examination  for  promotion,  is  found  not  quali- 
fied shall,  if  not  recommended  by  the  examin- 
ing board  for  transfer  to  the  Naval  Reserve 
Flying  Corps,  be  honorably  discharged  from 
the  naval  ser\-ice."     (39  Stat.,  584,  chap.  417.) 

The  above  paragraphs  were  rendered 
obsolete  two  years  after  the  passage  of  this 
act,  o^\ing  to  the  fact  that  no  appointments 
were  made  of  acting  ensigns  or  acting  second 
lieutenants  as  therein  authorized. 


[1916,  Aug.  29.  Promotion  of  officers  commissioned  for  aeronautic  duty- 
only.]  Officers  commissioned  for  aeronautic  duty  only  shall  be  eligible  for 
advancement  to  the  higher  grades,  not  above  captain  in  the  Navy  or  colonel 
in  the  Marine  Corps,  in  the  same  manner  as  other  officers  whose  employment 
is  not  so  restricted,  except  that  they  shall  be  eligible  to  promotion  without 
restriction  as  to  sea  duty,  and  their  professional  examinations  shall  be  restricted 
to  the  duty  to  which  personally  assigned:  Provided,  That  any  such  officer 
must  serve  at  least  three  years  in  any  grade  before  being  eligible  to  promotion 
to  the  next  higher  grade. — (39  Stat.,  584,  chap.  417.) 

[1916,  Aug.  29.  Detail  from  other  branches  as  student  aviators  or  airmen; 
pay.]  Nothing  in  this  Act  shall  be  so  construed  as  to  prevent  the  detail  of 
officers  and  enlisted  men  of  other  branches  of  the  Navy  as  student  aviators  or 
student  airmen  in  such  numbers  as  the  needs  of  the  service  may  require. 

Such  officers  and  enlisted  men,  while  detailed  as  student  aviators  and 
student  airmen  involving  actually  flying  in  aircraft,  shall  receive  the  same 
pay  and  allowances  that  are  now  provided  by  law  for  officers  and  enlisted 
men  of  the  same  grade  or  rank  and  rating  in  the  Navy  detailed  for  duty  with 
aircraft.— (39  Stat.,  584,  chap.  417.) 

See  note  above  (39  Stat.,  583),  as  to  pay  and  allowances  for  aviation  duty. 

[1916,  Aug.  29.     Student  flyers,  appointment,  instruction,  promotion,  etc.] 


These  paragraphs  read  as  follows: 
' '  The  Secretary  of  the  Navy  is  hereby  author- 
ized to  appoint  annually  for  a  period  of  four 


years,  from  enlisted  men  of  the  naval  service, 
or  from  citizens  of  the  United  States  in  civil 
life,  not  to  exceed  thirty  student  flyers  for  in- 


1439 


Aug.  29,  1916. 


PL  S.  STATUTES  A  T  LARGE. 


Flying  Corps. 


Btrurtion  and  traininu;  in  aeronautics  who  shall 
receive  the  same  ])ay  and  allowances  as  mid- 
shipmen at  the  United  Stales  Naval  Academy: 
Provided,  That  persons  so  appointed  must,  at 
the  time  of  ai)j)ointment,  l)e  not  less  than  seven- 
teen or  more  than  twenty-one  years  of  age: 
Provided  furllur,  That  no  person  shall  be  ap- 
pointed a  student  flyer  until  he  shall  have  qual- 
ified therefor  by  such  examination  as  may  be 
prescribed  bv  the  Secretarv  of  the  Navy.  (39 
Stat.,  584,  chap.  417.) 

"The  appointment  of  student  flyers  shall  con- 
tinue in  force  for  two  years,  unless  sooner  re- 
voked by  the  Secretary  of  the  Navy,  in  his 
discretion,  and  at  the  end  of  such  period  stu- 
dent flyers  shall  be  examined  for  qualification  as 
qualified  aviators:  Provided,  That  if  such  stu- 
dent flyers  are  not  qualified,  their  appointment 
\W11  be  revoked,  or,  if  recommended  by  the 
examining  board,  they  shall  be  transferred  to 
the  Naval  Reserve  Flying  Corps  and  commis- 
sioned as  ensigns  therein. 

"Student  flyers  shall,  after  receiving  a  cer- 
tificate of  qualification  as  an  aviator  for  actual 
fljing  in  aiixraft,  rank  with  midshipmen  and 
shall  receive  the  same  pay  and  allowances  as 
midshipmen,  plus  fifty  per  centum  thereof: 
Provided,  That  student  flyers  who  have  qual- 
ified as  a\-iators  under  the  pro\isions  of  this  Act 
shall  be  commissioned  acting  ensigns  for  aero- 


nautic duties  only,  after  three  years'  service: 
Provided  further,  That  they  shall  have  been 
examined  by  a  board  of  officers  of  the  Naval 
Fl.\ing  Corps  to  determine  by  a  competitive 
examination  prescribed  by  the  Secretary  of  the 
Navy  their  moral,  physical,  and  profes.sional 
fitness  and  the  order  of  rank  in  which  they  shall 
be  commissioned:  And  provided  further ,  That 
any  student  flyer  qualified  as  an  a\T.ator  may 
at  any  time,  in  the  discretion  of  the  Secretary  of 
the  Navy,  if  his  record  warrants  it,  at  his  own 
request,  be  transferred  to  the  Naval  Reserve 
Flying  Corps  and  be  commissioned  as  ensign 
therein:  And  -provided  further,  That  student 
flyers  not  considered  qualified  for  commissions 
as  acting  ensigns  for  aeronautic  duties  only  may, 
upon  recommendation  of  the  examining  board, 
be  transferred  to  the  Naval  Reserve  Fljdng 
Corps  and  be  commissioned  as  ensigns  therein. 

"The  Secretary  of  the  Na\y  is  hereby  author- 
ized to  estal>lish  aeronautic  schools  for  the  in- 
struction and  training  of  student  flyers  and  pre- 
scribe the  course  of  instruction  and  qualifica- 
tions for  certificate  of  graduation  as  a  qualified 
aviator."     (39  Stat.,  585,  chap.  417.) 

The  above  paragraphs  were  rendered 
obsolete  four  years  after  the  date  of  this  act, 
owing  to  the  fact  that  no  appointments  were 
made  of  student  flyers  for  instruction  and 
training  as  therein  authorized. 


[1916,  Aug  29.  Temporary  details  for  aircraft  duty.]  Nothing  in  this  or 
any  other  Act  shall  be  so  construed  as  to  prevent  the  temporary  detail  of 
officers  and  enlisted  men  of  any  branch  of  the  Navy  for  duty  with  aircraft. — 
(39  Stat.,  585,  chap.  417.) 

[1916,  Aug.  29.     Aviation  accidents,  payment  of  gratuity  and  pension.] 


This  paragraph  read  as  follows: 
"  In  the  event  of  the  death  of  an  officer  or  en- 
listed man  or  student  flyer  of  the  Naval  Fljing 
Corps  from  wounds  or  disease,  the  result  of  an 
aviation  accident,  not  the  result  of  his  own  mis- 
conduct, received  while  engaged  in  actual 
fljdngin  or  in  handling aiirraft,  the  gratuity  tobe 
paid  under  the  provisions  of  the  Act  approved 
August  twenty-second,  nineteen  hundred  and 
twelve,  entitled  'An  Act  making  appropriations 
for  the  naval  service  for  the  fiscal  year  ending 
June  thirtieth,  nineteen  hundred  and  thirteen, 
and  for  other  purposes,'  shall  be  an  amount 
equal  to  one  year's  pay  at  the  rate  received  by 
such  officer  or  enlisted  man  or  student  flyer  at 
the  time  of  the  accident  resulting  in  his  death. 
In  all  cases  where  an  oflicer  or  enlisted  man  or 
student  flyer  of  the  Navy  or  Marine  Corps  dies, 
or  where  a  student  flyer  or  an  enlisted  man  of 
the  Navy  or  Marine  Corps  is  disabled  by  reason 


of  any  injury  received  or  disease  contracted  in 
line  of  duty,  the  result  of  an  a\T.ation  accident, 
received  while  employed  in  actual  fljing  in  or 
handling  aircraft,  the  amount  of  pension  al- 
lowed shall  be  double  that  authorized  to  be 
paid  should  death  or  the  disabiUty  have  oc- 
curred by  reason  of  an  injury  received  or  dis- 
ease contracted  in  line  of  duty  not  the  result  of 
an  aviation  accident."  (39  Stat.,  585,  chap. 
417.) 

It  was  repealed,  together  with  the  provis- 
ions of  the  act  of  August  22,  1912  (37  Stat.,  329), 
referred  to  herein,  by  act  of  October  6,  1917, 
section  312  (40  Stat.,  408),  which  also  repealed 
a  provision  on  the  same  subject  in  the  act  of 
March  3,  1915  (38  Stat.,  939-940).  (See  31  Op. 
Attv.  Gen.,  205.) 

By  act  of  June  4,  1920  (41  Stat.,  824),  pro- 
vision is  made  for  payment  in  cases  of  death  of 
persons  in  the  naval  service. 


[1916,  Aug.  29.     Student  flyers  and  acting  officers,  laws  applicable  to.] 


This  paragraph  read  as  follow^s: 

"Student  flyers  and  the  acting  ensigns  and 
acting  lieutenants  (junior  grade)  and  acting 
second  and  first  lieutenants  for  aeronautic  du- 
ties only  provided  for  herein  shall  be  subject 
to  the  laws  and  regulations  and  orders  for  the 
government  of  the  Navy,  but  shall  not  be  en- 

[1916,   Aug.   29.  Ratings   of   enlisted   men,   Flying   Corps.]     The  enlisted 
personnel  of  the  Naval  Flying  Corps  shall  be  distributed  by  the  Secretary  of 


titled  to  retirement  or  retired  pay."     (39  Stat., 
585,  chap.  417.) 

It  was  rendered  obsolete  by  the  fact  that 
no  appointments  of  student  flyers  or  acting 
ofiicers  were  made  as  authorized  by  this  act. 
(See  above,  39  Stat.,  583,  584,  and  585.) 


1440 


Naval  Courts. 


Pi.  3.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


tlie  Navy  in  the  various  ratings  as  now  obtain  in  the  Navy  in  so  far  as  such 
ratings  are  applicable  to  duties  co^inected  with  aircraft. — (39  Stat.,  585-586, 
chap.  417.) 


See  note  to  section  1569,  Revised  Statutes,  as 
to  enlisted  ratings  in  the  Navy;  and  note 


to  section   1608,   Revised   Statutes,  as  to 
enlisted  ratings  in  the  Marine  Corps. 


[1916,  Aug.  29.  Enlisted  men  transferred  to  Flying  Corps.] 


corps:  Provided,  That  the  niunber  so  trans- 
ferred shall  not  exceed  one-half  the  total  num- 
ber of  enlisted  men  allowed  by  this  Act." 
(39  Stat.,  586,  chap.  417.) 

It  expired  by  limitation  two   years  after 
approval  of  this  act. 


This  paragraph  read  as  follows: 

' '  Within  the  first  two  years  after  the  approval 
of  this  Act  enlisted  men  may  be  transferred 
from  other  branches  of  the  Naval  Service  to 
the  Naval  Flying  Corps,  under  regulations  es- 
tablished by  the  Secretary  of  the  Navy  govern- 
ing such  transfer  and  the  qualifications  for  this 

[1916,  Aug.  29.  Term  of  enlistment,  etc.,  Flying  Corps;  regulations.] 
The  Secretary  of  the  Navy  shall  establish  regulations  governing  the  term  of 
enlistment,  the  qualifications,  and  advancement  of  the  enlisted  men  of  the 
Flying  Corps.— (39  Stat.,  586,  chap.  417.) 

See  note  to  section  1418,  Revised  Statutes,  as 
to  term  of  enlistment  in  the  Navy;  and  see 


notes  to  sections  161  and  1547,   Revised 
Statutes,  on  general  subject  of  regulations. 


[1916,  Aug.  29.  Student  flyers,  appointments  from  enlisted  men.] 


This  paragraph  read  as  follows: 

"Any  enlisted  man  who  passes  satisfactorily 
the  prescribed  examination  and  is  recom- 
mended by  a  board  of  officers  may  be  appointed 
a  student  flyer  as  herein  provided."  (39 
Stat.,  586,  chap.  417.) 


It  was  rendered  obsolete  by  the  fact  that 
no  appointments  of  student  flyers  were  made 
from  enlisted  men  as  provided  by  this  act.  The 
authority  for  such  appointments  expired  four 
years  after  the  date  of  this  act.  (See  above, 
39  Stat.,  584-585.) 


ADMINISTRATION    Or    JUSTICE. 

[1916,  Aug.  29.  Deck  courts ;  punishments  by  commanding  officers.]  Here- 
after all  officers  of  the  Navy  and  Marine  Corps  who  are  authorized  to  order 
either  general  or  summary  courts-martial  may  order  deck  courts  upon  enlisted 
men  under  theu"  command,  and  shall  have  the  same  authority  to  inflict  minor 
punishments  as  is  conferred  by  law  upon  the  commander  of  a  naval  vessel. — 
(39  Stat.,  586,  chap.  417.) 


See  act  of  February  16,  1909  (35  Stat.,  621), 
establishing  deck  courts,  and  which  was 
amended  by  this  paragraph;  see  provi- 
sions of  this  act,  set  forth  below,  and  notes 
to  section  1624,  Revised  Statutes,  articles 


26  and  38,  as  to  summary  and  general 
courts-martial;  see  note  to  section  1624, 
Revised  Statutes,  articles  24  and  25,  as  to 
punishments  by  commanding  officers. 


[1916,  Aug.  29.  Summary  courts-martial,  by  whom  convened;  deck  courts 
and  minor  punishments  at  naval  hospitals.]  Summary  courts-martial  may  be 
ordered  upon  enlisted  men  in  the  naval  service  under  his  command  by  the  com- 
manding officer  of  any  brigade,  regiment,  or  separate  or  detached  battalion,  or 
other  separate  or  detached  command,  and,  when  empowered  by  the  Secretary 
of  the  Navy,  by  the  commanding  ofiicer  or  officer  in  charge  of  any  command 
not  specifically  mentioned  in  the  foregoing:  Provided,  That  when  so  empowered 
by  the  Secretary  of  the  Navy  to  order  summary  courts-martial,  the  command- 
ing officer  of  a  naval  hospital  or  hospital  ship  shall  be  empowered  to  order  such 
courts  and  deck  courts,  and  inflict  the  punishments  which  the  conmaander  of  a 
naval  vessel  is  authorized  by  law  to  inflict,  upon  all  enlisted  men  of  the  naval 


1441 


Statutes,  as  to  command  of  hospital  ships; 
see  also  note  to  section  1529,  Revised 
Statutes. 


Aug.  29,  1916.  Pt.  3.  STATUTES  AT  LARGE.  Naval  Courts. 

service  attached  thereto,  whether  for  duty  or  as  patients. — (39  Stat.,    586, 
chap.  417.) 

See  note  to  section  1024,  Revised  Statutes, 
article  26,  as  to  summary  courts-martial- 
and   see   note  to   section    1488,    Revised 

[1916,  Aug.  29.  Execution  of  summary  court-martial  sentences.]  No  sen- 
tence of  a  summary  court-martial  shall  be  carried  into  execution  until  the  pro- 
ceedings and  sentence  have  been  approved  by  the  officer  ordering  the  court,  or 
his  successor  in  office,  and  by  his  immediate  superior  in  command:  Provided, 
That  if  the  officer  ordering  the  court,  or  his  successor  in  office,  be  the  senior 
officer  present,  such  sentence  may  be  earned  into  execution  upon  his  approval 
thereof.— (39  Stat.,  586,  chap.  417.) 

See  note  to  section  1624,  Revised  Statutes,  article  32;  and  see  act  of  February  10,  1909, 
sections  9  and  17  (35  Stat.,  621,  623). 

[1916,  Aug.  29.  General  courts-martial,  by  whom  convened.]  When  em- 
powered by  the  Secretary  of  the  Navy,  general  courts-martial  may  be  convened 
by  the  commanding  officer  of  a  squadron,  of  a  division,  of  a  flotilla,  or  of  a 
larger  naval  force  afloat,  and  of  a  brigade  or  larger  force  of  the  naval  service  on 
shore  beyond  the  continental  limits  of  the  United  States:  Provided,  That  in 
time  of  war,  if  then  so  empowered  by  the  Secretary  of  the  Navy,  general  courts- 
martial  may  be  convened  by  the  commandant  of  any  navy  yard  or  naval  sta- 
tion, and  by  the  commanding  officer  of  a  brigade  or  larger  force  of  the  Navy  or 
Marine  Corps  on  shore  not  attached  to  a  navy  yard  or  naval  station. — (39  Stat., 
586,  chap.  417.) 

See  note  to  section  1624,  Revised  Statutes,  article  38. 

[1916,  Aug.  29.  Courts  of  inquiry,  by  whom  convened.]  Courts  of  inquiry 
may  be  convened  by  any  officer  of  the  naval  service  authorized  by  law  to  con- 
vene general  courts-martial. — ^(39  Stat.,  586,  chap.  417.) 

See  note  to  section  1624,  Revised  Statutes,  article  55. 

[1916,  Aug.  29.  Marines  embarked  on  naval  vessels;  power  of  officers.] 
When  a  force  of  marines  is  embarked  on  a  naval  vessel,  or  vessels,  as  a  separate 
organization,  not  a  part  of  the  authorized  complement  thereof,  the  authority 
and  powers  of  the  officers  of  such  separate  origanization  of  marines  shall  be  the 
same  as  though  such  organization  were  serving  at  a  navy  yard  on  shore,  but 
nothing  herein  shall  be  construed  as  impairing  the  paramount  authority  of  the 
commanding  officer  of  any  naval  vessel  over  the  vessel  under  his  command  and 
all  persons  embarked  thereon. — (39  Stat.,  586,  chap.  417.) 

See  sections  1616  and  1617,  Revised  Statutes,  and  notes  thereto. 

NAVAL    RESERVE    FORCE. 

[1916,  Aug.  29.  Classes  in  Naval  Reserve  Force.  There  is  hereby  estab- 
lished, under  the  Department  of  the  Navy,  a  Naval  Reserve  Force,  to  consist 
of  six  classes,  designated  as  follows  and  as  hereinafter  described : 

First.  The  Fleet  Naval  Reserve. 

Second.  The  Naval  Reserve. 

Third.  The  Naval  Auxiliary  Reserve. 

Fourth.  The  Naval  Coast  Defense  Reserve. 

1442 


Naval  Reserve  Force. 


PL  3.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


Fifth.  The  Volunteer  Naval  Reserve. 

Sixth.  Naval  Reserve  Flying  Corps. — (39  Stat.,  587,  chap.  417.) 


The  National  Naval  Volunteers  was  abolished, 
and  the  members  thereof  transferred  to  the 
various  classes  of  the  Naval  Reserve  Force 
and  Marine  Corps  Reserve,  bv  act  of  July 
1,  1918  (40  Stat.,  708). 


Mileage  allowed  naval  reservists  honorably 
released  from  active  duty:  See  act  of  June 
3,  1910,  section  126  (39  Stat.,  217),  as 
amended  and  reenacted  bv  act  of  Feb- 
ruary 28,  1919  (40  Stat.,  1203). 


[1916,  Aug.  29.  Members,  citizenship;  obligation  assumed;  naturalization.] 
The  Naval  Reserve  Force  shall  be  composed  of  citizens  of  the  United  States 
who,  by  enrolling  under  regulations  prescribed  by  the  Secretary  of  the  Navy  or 
by  transfer  thereto  as  m  this  Act  provided,  obligate  themselves  to  serve  m  the 
Navy  in  time  of  war  or  during  the  existence  of  a  national  emergency,  declared 
by  the  President:  Provided,  That  citizens  of  the  msular  possessions  of  the 
United  States  may  enroll  in  the  Naval  Auxiliary  Reserve.  Provided  further^ 
That  such  persons  who  are  not  citizens  of  the  United  States,  but  who  have  or 
shall  have  declared  then  intention  to  become  citizens  of  the  United  States,  and 
who  are  citizens  of  countries  which  are  at  peace  with  the  United  States,  may 
enroll  in  the  Naval  Reserve  Force  subject  to  the  condition  that  they  may  be 
discharged  from  such  enrollment  at  any  time  within  the  discretion  of  the 
Secretary  of  the  Navy,  and  such  persons  who  may,  mider  existing  law,  become 
citizens  of  the  United  States,  and  who  render  honorable  service  in  the  Naval 
Reserve  Force  in  time  of  war  for  a  period  of  not  less  than  one  year  may  become 
citizens  of  the  United  States  without  proof  of  residence  on  shore  and  without 
further  requii'ement  than  proof  of  good  moral  character  and  certificate  from 
the  Secretary  of  the  Navy  that  such  honorable  service  was  actually  rendered. — - 
(39  Stat.,  587,  chap.  417;  40  Stat.,  84,  chap.  18.) 

This  paragraph  was  expressly  amended  to 
read  as  above  by  act  of  May  22,  1917  (40 
Stat.,  84),  which  added  thereto  the  words, 

[1916,  Aug.  29.  Regulations,  Naval  Reserve  Force.]  The  Secretary  of  the 
Navy  shall  make  all  necessary  and  proper  regulations  not  inconsistent  with 
law  for  the  administration  of  the  provisions  of  this  Act  which  relate  to  the  Naval 
Reserve  Force. — (39  Stat.,  587,  chap.  417.) 

See  notes  to  sections  161  and  1547,  Revised  Statutes,  on  the  general  subject  of  regulations. 

[1916,  Aug.  29.  Active  service  during  war,  etc.]  Members  of  the  Naval 
Reserve  Force  may  be  ordered  into  active  service  in  the  Navy  by  the  President 
in  time  of  war  or  when,  in  his  opinion,  a  national  emergency  exists. — (39  Stat., 
587,  chap.  417.) 


"Provided    further"    to    the   end    of   the 
paragraph  as  above  set  forth. 


Active  duty  afloat  in  time  of  peace  was  au- 
thorized by  act  of  July  1,  1918  (40  Stat., 
711). 

Not  to  perform  active  duty  on  shore  of  a  kind 
ordinarily  performed  by  ci\ilians.  (Act 
July  11,  1919,  41  Stat.,  138.) 


See  below  (39  Stat.,  588),  as  to  active  service 

during  war,  etc. 
See  act  of  June  4,  1920,  section  2  (41  Stat., 

834),  as  to  active  duty  authorized  in  time 

of  peace  to  supply  deficiencies  in  enlisted 

strength  of  the  Navy. 


[1916,  Aug.  29.  Ranks  and  ratings;  engineering  duties,  etc.]  There  shall 
be  allowed  in  the  Naval  Reserve  Force  the  various  ratings,  grades,  and  ranks, 
not  above  the  rank  of  lieutenant  commander,  corresponding  to  those  in  the 
Navy.  Officers  of  the  line  may  be  appointed  for  deck  or  engineering  duties, 
as  they  may  elect. — (39  Stat.,  587,  chap.  417.) 


1443 


Aug.  29,  1916. 


Pt.  S.  STATUTES  AT  LARGE. 


Naval  Reserve  Force. 


Promotion  above  the  grade  of  lieutenant  com- 
mander in  time  of  war  was  authorized  bv 
act  of  July  1,  1918  (40  Stat.,  711). 

Transfer  to  the  Naval  Reserve  Fierce  of  meml>ers 
of  the  National  Naval  Volunteers,  in  the 
ranks  held  iiy  them  at  that  time,  was 
authorized  hyact  of  July  1,  1918  (40  Stat., 
708),   wliich   further  authorized   reenroll- 


ment  of  members  in  the  Naval  Reserve 
Force  in  the  ranks  held  by  them  on  ter- 
mination of  their  last  enrollment. 
As  to  oflicers  for  engineering  duty  only,  see 
act  of  February  16,  1914,  section  21  (.38 
Stat.,  289-290);  see  also  act  of  March  3, 
1915  (38  Stat.,  930),  and  note  thereto. 


[1916,  Aug.  29.  Appointment  of  officers,  how  made;  retainer  pay,  etc. 
not  reduced.]  Members  of  the  Naval  Reserve  Force  appointed  to  commis- 
sionecl  grades  shall  be  commissioned  by  the  President  alone,  and  members  of 
such  force  appointed  to  warrant  grades  shall  be  warranted  by  the  Secretary  of 
the  Navy:  Provided,  That  officers  so  warranted  or  commissioned  shall  not  be 
deprived  of  the  retainer  pay,  allowances,  or  gratuities  to  which  they  would 
otherwise  be  entitled. — (39  Stat.,  587,  chap.  417.) 

[1916,  Aug.  29.  Precedence  of  officers,  Naval  Reserve  Force.] 


This  provision  read  as  follows: 
•'Olhcers  of  the  Naval  Reserve  Force  shall 
rank  with  but  after  oflicers  of  corresponding 
rank  in  the  Navy."     (39  Stat.,  587,  chap.  417.) 


It  was  superseded  by  act  of  July  1,  1918 
(40  Stat.,  711),  which  contained  other  provisions 
on  the  same  subject. 


[1916,  Aug.  29.  Term  of  enrollment;  discharge  on  request.]  Enrollment 
and  reenrollment  shall  be  for  terms  of  four  years,  but  members  shall  in  time  of 
peace,  when  no  national  emergency  exists,  be  discharged  upon  their  own  re- 
quest upon  reimbursing  the  Government  for  any  clothing  gratuity  that  may 
have  been  furnished  them  during  their  current  enrollment. —  (39  Stat.,  587, 
chap  417.) 


See  below  (39  Stat.,  589),  as  to  refund  of  uni- 
form gratuity  when  discharged  without 
compulsion. 

Members  to  be  disenroUed  at  age  of  64  years, 
except  in  time  of  war,  etc.  (Act  July  1, 
1918,  40  Stat.,  711.) 


See  act  of  June  4,  1920  (41  Stat.,  817),  as  to 
enrollments  for  instruction  at  summer 
Bchools  for  boys. 


[1916,  Aug.  29.  Oath  of  allegiance.]  Persons  enrolling  shall  be  required 
to  take  the  oath  of  allegiance  to  the  United  States. —  (39  Stat.,  587,  chap.  417.) 

See  act  of  March  3,  1899,  section  25  (30  Stat.,  1009). 

[1916,  Aug.  29.  Provisional  grade  on  enrollment;  instruction  prior  to 
confirmation.]  When  first  enrolled  members  of  the  Naval  Reserve  Force, 
except  those  in  the  Fleet  Naval  Reserve,  shall  be  given  a  provisional  grade, 
rank  or  rating  in  accordance  with  their  qualifications  determined  by  examina- 
tion. They  may  thereafter,  upon  application,  be  assigned  to  active  service  in 
the  Navy  for  such  periods  of  instruction  and  training  as  may  enable  them  to 
qualify  for  and  be  confirmed  in  such  grade,  rank  or  rating. —  (39  Stat.,  587, 
chap.  417.) 


Advancement  to  higher  provisional 
ranks. — WTien  an  enrolled  member  has  been 
given  a  pro\dsional  rank,  he  may  thereafter, 
either  with  or  without  being  confirmed  in  such 
provisional  rank,  be  given  a  higher  provisional 
rank  without  examination  by  the  statutory 
board  of  three  naval  officers  of  or  above  the 


rank  of  lieutenant  commander  and  the  statu- 
tory board  of  naval  surgeons.  Such  assign- 
ment of  higher  provisional  rank  is  not  a  "pro- 
motion' '  within  the  meaning  of  the  law  relating 
to  examinations.  (31  Op.  Atty.  Gen.,  173; 
see  below  as  to  examinationa  for  appointment 
and  promotion.) 


[1916,   Aug.    29.  Requirements   for   confirmation   in   grade.]     No  member 
shall  be  confirmed  in  his  provisional  grade,  rank  or  rating  until  he  shall  have 


1444 


Naval  Reserve  Force.  Pt.  3.  STATUTES  AT  LARGE.  Aug.  29,  1916. 

performed  the  minimum  amount  of  active  service  required  for  the  class  in 

which  he  is  enrolled,  nor  until  he  has  duly  qualified  by  examination  for  such 

rank  or  rating  under  regulations  prescribed  by  the  Secretary  of  the  Navy. — 

(39  Stat.,  587,  chap  417.) 

Duty  performed  in  the  Naval  jVIilitia  may  be  of  the  Naval  Reserve  Force.     (Act  June  4, 

counted  as  active  service  for  the  main-  1920,  41  Stat.,  818.) 

tenance  of  efficiency  required  for  members 

[1916,  Aug.  29.  Examinations  for  appointment  and  promotion;  former 
officers  and  midshipmen.]  No  person  shall  be  appointed  or  commissioned  as 
an  officer  in  any  rank  in  any  class  of  the  Naval  Keserve  Force,  or  promoted  to 
a  higher  rank  therein,  unless  he  shall  have  been  examined  and  recommended 
for  such  appointment,  commission,  or  promotion  by  a  board  of  three  naval 
officers  not  below  the  rank  of  lieutenant  commander,  nor  until  he  shall  have 
been  found  physically  qualified  by  a  board  of  medical  officers  to  perform  the 
duties  required  in  time  of  war,  except  that  former  officers  and  midshipmen  of 
the  Navy,  who  shall  have  left  the  service  under  honorable  conditions  and  who 
shall  have  enrolled  in  the  Naval  Reserve  Force,  may  be  appointed  in  the  grade 
and  rank  last  held  by  them  without  examination  other  than  the  physical 
examination  above  prescribed. —  (39  Stat.,  587-588,  chap.  417.) 


Promotion  of  officers  below  rank  of  lieutenant- 
commander  shall  be  in  accordance  with 
regulations  prescribed  by  Secretary  of  the 
Navj';  above  Ueutenant  commander,  shall 
be  by  selection,   in  time  of  war.     (Act 
July  i,  1918,  40  Stat.,  711.) 
"Appointment"  and  "promotion"  con- 
strued.— The    assignment     of    a    provisional 
rank  is  not  an    'appointment,"  and  advance- 
ment to  a  higher  provisional  rank  is  not  a 
"promotion"     within    the    meaning    of    this 
paragi-aph.     (31  Op.  Atty.  Gen.,  173.) 


Former  oflicer  dismissed  from  Navy; 
effect  of  pardon. — An  officer  of  the  Navy 
who  has  been  dismissed  by  sentence  of  court- 
martial,  and  subsequently  pardoned  for  the 
offense  for  which  dismissed,  is  not  eligible  for 
reappointment  to  the  Navy  or  to  membership 
in  the  Fleet  Naval  Reserve.  (31  Op.  Atty. 
Gen.,  225;  see  below,  39  Stat.,  589,  as  to  qualifi- 
cations for  Fleet  Naval  Reserve;  and  see  note 
to  Constitution,  Art.  II,  sec.  2,  clause  1,  and 
note  to  sec.  1441,  Revised  Statutes,  as  to  effect 
of  pardon.) 


[1916,  Aug.  29.  Retainer  pay,  before  confirmation  in  grade.]  The  retainer 
pay  of  all  members  of  the  Naval  Reserve  Force,  except  the  Volunteer  Naval 
Reserve,  while  enrolled  in  a  provisional  rank  or  rating,  and  until  such  time  as 
they  shall  have  been  confirmed  in  such  rank  or  rating,  shall  be  $12  per  annum. 
Thereafter,  the  retainer  pay  shall  be  that  prescribed  for  members  in  the  various 
classes.— (39  Stat.,  588,  chap.  417.) 

[1916,  Aug.  29.  Retainer  pay  while  on  active  duty.]  Retainer  pay  shall 
be  in  addition  to  any  pay  to  which  a  member  may  be  entitled  by  reason  of 
active  service. —  (39  Stat.,  588,  chap.  417.) 


No  retainer  pay  in  time  of  peace  while  on  duty 
for  purposes  other  than  training.  (Act 
July  1,  1918,  40  Stat.,  711.) 


See  note  to  section  1556,  Revised  Statutes, 
under  "37.  Naval  Reserve  Force,"  for  laws 
and  decisions  relating  to  retainer  pay. 


[1916,  Aug.  29.  Retainer  pay;  conditions  of  payment.]     Retainer  pay  shall 

only  be  paid  to  members  of  the  Naval  Reserve  Force  upon  their  making  such 

reports  concerning  their  movements  and  occupations  as  may  be  required  by 

the  Secretary  of  the  Navy.— (39  Stat.,  588,  chap.  417.) 

tions;  and  see  act  of  June  4,  1920  (41  Stat., 
824  and  837),  for  other  provisions  relating 
to  forfeiture  of  retainer  pay. 


See  below  (39  Stat.,  590),  as  to  forfeiture  of 
retainer  pay  in  the  Fleet  Naval  Reserve 
upon  failure  to  report  for  required  inspec- 


[1916,  Aug.  29.  Increased  retainer  pay  on  reenrollment.]     Members  of  the 
Naval  Reserve  Force  who  reenroU  for  a  term  of  four  years  within  four  months 

1445 


Aug.  29,  1916. 


Pt.  3.  STATUTES  AT  LARGE. 


Naval  Reserve  Force. 


from  the  date  of  tlic  termination  of  their  last  term  of  enrollment,  and  who  shall 
have  performed  the  minimum  amount  of  active  service  required  during  the 
preceding  term  of  enrollment,  shall,  for  each  such  reenrollment,  receive  an 
increase  of  twenty-five  per  centum  of  their  base  retainer  pay. —  (39  Stat.,  588, 
chap.  417.) 


No  enrolled  member  to  receive  retainer  pay  in 
excess  of  amount  authorized  to  members 
ha\'ing  had  Ifi  years'  continuous  eer\dce. 
(Act  July  1,  1918,  40  Stat.,  710-711.) 

Service  in  Kavy,  Marine  Corps,  Naval  Militia, 
etc.,  counted  as  continuous  service  in  the 
Naval  Reserve  Force  for  purpose  of  com- 
puting retainer  pav.  (Act  July  1,  1918,  40 
Stat.,  710.) 


Service  in  the  Naval  Reserve,  created  bv  act  of 
March  3,  1915  (38  Stat.,  940),  credited  as 
service  in  the  Naval  Reserve  Force  in 
certain  cases.  (Act  of  Mar.  4,  1917,  39 
Stat.,  1174;  see  note  to  act  Mar.  3,  1915,  38 
Stat.,  940-941,  and  note  to  sec.  1556  R.  S., 
under  "37,  Naval  Reserve  Force.") 


[1916,  Aug.  29.  Eetirement,  enrolled  members,  20  years'  service.]  That 
enrolled  members  who  shall  have  completed  twenty  years  of  service  in  the 
Naval  Reserve  Force,  and  who  shall  have  performed  the  minimum  amount  of 
active  service  required  in  their  class  for  maintaining  efficiency  during  each  term 
of  enrollment,  shall,  upon  their  own  apphcation,  be  retired  with  the  rank  or 
rating  held  by  them  at  the  time,  and  shall  receive  in  lieu  of  any  pay,  a  cash 
gratuity  equal  to  the  total  amoimt  of  their  retainer  pay  during  the  last  term  of 
their  enrollment. —  (39  Stat.,  588,  chap.  417.) 


No  member  of  the  Naval  Reserve  Force  shall  be 
eligible  for  retirement  other  than  for  physi- 
cal disability  incurred  in  line  of  duty. 
(Act  July  1,  1918,  40  Stat.,  710.) 

Service  in  the  Na\^-,  Marine  Corps,  National 
Naval  Volunteers,  and  Naval  Militia  shall 
be  counted  as  continuous  service  in  the 
Naval  Reserve  Force,  both  for  the  purpose 


of  retirement  and  of  computing  retainer 
pay.     (Act  July  1,  1918,  40  Stat.,  710.) 

All  officers  of  the  Naval  Reserve  Force  sliall  be 
eligible  for  retirement  for  physical  disa- 
bility in  line  of  duty.  (Act  June  4,  1920, 
41  Stat.,  834.) 

See  below  (39  Stat.,  591),  as  to  retirement  in 
Fleet  Naval  Reserve. 


[1916,  Aug.  29.  Retainer  pay,  paid  annually,  etc.]  Retainer  pay  shall  be 
paid  annually  or  at  shorter  intervals,  as  the  Secretary  of  the  Navy,  in  his  dis- 
cretion, may  direct! — (39  Stat.,  588,  chap.  417.) 

See  act  of  June  4, 1920,  section  9  (41  Stat.,  837),  as  to  withholding  retainer  pay;  see  also  same 
act  (41  Stat.,  824). 

[1916,  Aug.  29.  Reservists  holding  public  employment,  except  in  military 
service.]  No  existing  law  shall  be  construed  to  prevent  any  member  of  the 
Naval  Reserve  Force  from  accepting  employment  in  any  branch  of  the  public 
service,  except  as  an  officer  or  enlisted  man  in  any  branch  of  the  military  service 
of  the  United  States  or  any  State  thereof,  nor  from  receiving  the  pay  and 
allowances  incident  to  such  employment  in  addition  to  .his  retainer  pay. — (39 
Stat.,  588,  chap.  417.) 


See  act  of  June  3, 1916,  section  74  (99  Stat.,  201- 
202),  as  amended  by  act  of  June  4,  1920, 
section  41  (41  Stat.,"  781-782),  as  to  quali- 
fications for  appointment  as  National 
Guard  officers. 


Members  of  Naval  Reserve  Force  may  become 

members  of  naval  militia  in  any  State  or 

Territory-,    etc.     (Act  July    11,    1919,    41 

Stat.,  141.) 
Until  June   30,    1922,    certain    Naval   Militia 

organizations  shall  be  a  part  of  the  Naval 

Reserve   Force.     (Act  June  4,    1920,   41 

Stat.,  817.) 

[1916,  Aug.  29.  Enrolled  members  subject  to  naval  laws,  etc.]  Enrolled 
members  of  the  Naval  Reserve  Force  shall  be  subject  to  the  laws,  regulations, 
and  orders  for  the  government  of  the  Regular  Navy  only  during  such  time  as 


1446 


Naval  Reserve  Force.  Pt.  3.  STATUTES  AT  LARGE.  Aug.  29,  1916. 

they  may  by  law  be  required  to  serve  in  the  Navy,  in  accordance  with  their 
obhgations,  and  when  on  active  service  at  then"  own  request  as  herein  provided, 
and  when  employed  in  authorized  travel  to  and  from  such  active  service  in  the 

Navy.— (39  Stat.,  588,  chap.  417.) 


See  provision  in  act  of  July  1,  1918  (40  Stat., 
712),  on  this  subject;  and  see  below  (39 
Stat.,  591),  as  to  Fleet  Naval  Reserve. 

See  note  to  section  1624,  Revised  Statutes,  as  to 


persons  amenable  to  articles  for  the  govern- 
ment of  the  Navy,  and  particularly  cases 
noted  under  "Naval  reservists  released 
from  active  duty. ' ' 


[1916,  Aug.  29.  Badge  of  Naval  Reserve  Force;  unauthorized  wearing  of.] 
Members  of  the  Naval  Reserve  Force  shall  be  issued  a  distinctive  badge  or  button 
which  may  be  worn  with  civilian  dress,  and  whoever,  not  being  a  member  of  the 
Naval  Reserve  Force  of  the  United  States  and  not  entitled  imder  the  law  to 
wear  the  same,  willfully  wears  or  uses  the  badge  or  button  or  who  uses  or  wears 
the  same  to  obtain  aid  or  assistance  thereby,  shall  be  punished  by  a  fine  of  not 
more  than  $20  or  by  imprisonment  for  not  more  than  thirty  days  or  by  both 
such  fine  and  imprisonment. —  (39  Stat.,  588,  chap.  417.) 

1916,  section  125  (39  Stat.,  216-217),  and 
notes  thereto,  as  to  unauthorized  wearing 
of  the  uniform,   etc. 


See  act  of  July  1,  1918  (40  Stat.,  712),  as  to 
reservists  wearing  their  uniforms  while  not 
in  active  service;  and  see  act  of  June  3, 


[1916,  Aug.  29.  Active  service  pay;  allowances  when  not  actively  em- 
ployed.] All  members  of  the  Naval  Reserve  Force  shall,  when  actively  em- 
ployed as  set  forth  in  this  Act,  be  entitled  to  the  same  pay,  allowances,  gratuities, 
and  other  emoluments  as  officers  and  enlisted  men  of  the  naval  service  on  active 
duty  of  corresponding  rank  or  rating  and  of  the  same  length  of  service.  When 
not  actively  employed  in  the  Navy,  members  of  the  Naval  Reserve  Force  shall 
not  be  entitled  to  any  pay,  bounty,  gratuity,  or  pension  except  as  expressly 
provided  for  members  of  the  Naval  Reserve  Force  by  the  provisions  of  this 
Act.— (39  Stat.,  588,  chap.  417.) 

See  act  of  July  1,  1918  (40  Stat.,  712),  which       See  act  of  June  4, 1920,  section  2  (41  Stat.,  834), 
modifies  the  first  sentence  of  this  para-  as  to  retirement  of  officers  of  the  Naval  Re- 

graph  relating  to  pay,  etc.,  on  active  duty;  serve  Force  for  physical  disability, 

and  see  note  to  section  1556,  Revised 
Statutes,  vmder  "37.  Naval  Reserve 
Force." 

[1916,  Aug.  29.  Service  in  time  of  war,  etc.]  Enrolled  members  of  the 
Naval  Reserve  Force  may,  in  time  of  war  or  national  emergency,  be  required 
to  perform  active  service  in  the  Navy  throughout  the  war  or  until  the  national 
emergency  ceases  to  exist. —  (39  Stat.,  588-589,  chap.  417.) 


See  above  (39  Stat.,  587),  as  to  active  service 

dming  war,  etc. 
Not  to  perform  active  duty  on  shore  of  a  kind 

ordinarily  performed   by   civilians.     (Act 

July  11,  1919,  41  Stat.,  138.) 


Service  afloat,  in  time  of  peace,  was  authorized 
by  act  of  July  1,  1918.     (40  Stat.,  711.) 


[1916,  Aug.  29.  Uniform  gratuity,  amount  credited;  refund  on  discharge.] 
Members  of  the  Naval  Reserve  Force  shall,  upon  first  reporting  for  active  service 
for  training  during  each  period  of  enrollment,  be  credited  with  a  uniform  gratuity 
of  $50  for  officers  and  of  $30  for  men. 

Upon  reporting  for  active  service  in  time  of  war  or  national  emergency 
the  uniform  gratuity  shall  be  $150  for  officers  and  $60  for  men,  or  the  difference 
between  these  amounts  and  any  amounts  that  may  have  been  credited  as  a 

1447 


Aug.  29,  1916.  Pt.  S.  STATUTES  AT  LARGE.  Naval  Resei-ve  Force. 

uniform  gratuity  during  the  current  enrollment:  Provided,  That  should  any 
member  of  the  Naval  Reserve  Force  sever  his  connection  with  the  service  with- 
out compulsion  on  part  of  the  Government  before  the  expiration  of  his  term  of 
enrollment,  the  amount  so  credited  shall  be  deducted  from  any  money  that  may 
be  or  may  become  due  him. — (39  Stat.,  589,  chap.  417.) 


See  act  of  July  1,  1918  (40  Stat.,  711),  which 
modified  this  paragraph  as  to  amount  of 
uniform  gratuity  allowed  members,  other 
than  officers;  and  further  provided  that 
no  part  of  the  "clothing  gratuity"  shall  be 


appointments  in  the  Navy  in  time  of  war 

or  emergency. 
See  note  to  section  1556,   Re\ised  Statutes, 

under  "37.  Naval  Reserve  Force." 
See  above  (39  Stat.,  587),  as  to  discharge  of 

members  on  request  in  time  of  peace. 


)  par 
deducted  when  members  accept  temporary 

[1916,  Aug.  29.  Reservists  to  be  shipped  for  service  on  auxiliary  vessels.] 
Hereafter,  in  shipping  oflicers  and  men  for  service  on  board  United  States 
auxiliary  vessels,  preference  shall  be  given  to  members  of  the  Naval  Reserve 
Force,  and,  after  two  years  from  the  date  of  approval  of  this  Act,  no  person 
shall  be  shipped  for  such  service  who  is  not  a  member  of  the  Naval  Reserve 
Force  herein  provided. —  (39  Stat.,  589,  chap.  417.) 

[1916,  Aug.  29.  Transfers  between  classes  of  Reserve  Force.]  Members  of 
the  Naval  Reserve  Force  may,  upon  application,  be  transferred  from  one  class 
to  another  class  for  which  qualified  under  the  provisions  of  this  Act;  and  may 
in  time  of  war  volunteer  for  and  be  assigned  to  duties  prescribed  for  any  class 
which  they  may  be  deemed  competent  to  perform. — (39  Stat.,  589,  chap.  417.) 

[1916,  Aug.  29.  Pennant  for  merchant  vessels  commanded  by  reservists.] 
The  Secretary  of  the  Navy  shall  prescribe  a  suitable  flag,  or  pennant,  that  may 
be  flo-\\Ti  as  an  insignia  on  private  vessels  or  vessels  of  the  merchant  service 
commanded  by  officers  of  the  Naval  Reserve  Force :  Provided,  That  it  shall  not 
be  flown  in  lieu  of  the  National  ensign. — (39  Stat.,  589,  chap.  417.) 

[1916,  Aug.  29.  Schools  of  instruction  for  reservists  and  applicants.]  The 
Secretary  of  the  Navy  is  hereby  authorized  to  establish  schools  or  camps  of 
instruction  at  such  times  and  in  such  localities  as  he  may  deem  advisable  for 
the  purpose  of  instructing  members  and  applicants  for  membership  in  the  Naval 
Reserve  Force.  No  applicant  shall  be  accepted  for  instruction  unless  he  agrees 
to  abide  by  the  regulations  of  the  school  and  pursue  the  course  prescribed  by 
the  Secretary  of  the  Navy.  Persons  who  satisfactorily  complete  the  course  will 
be  given  certificates  of  qualification  for  the  rank  or  rating  for  which  duly  qual- 
ified, and  may  be  permitted  to  enroll  in  the  proper  class  of  the  reserve  in  such 
rank  or  rating. — (39  Stat.,  589,  chap.  417.) 

FLEET    NAVAL    RESERVE. 

[1916,  Aug.  29.  Membership  qualifications,  Fleet  Naval  Reserve.]  All 
former  officers  of  the  United  States  naval  service,  including  midshipmen,  who 
have  left  that  service  under  honorable  conditions,  and  those  citizens  of  the 
United  States  who  have  been,  or  may  be  entitled  to  be,  honorably  discharged 
from  the  naval  service  after  not  less  than  one  four-year  term  of  enlistment  or 
after  a  term  of  enlistment  during  minority,  and  who  shall  have  enrolled  in  the 
Naval  Reserve  Force  shall  be  eligible  for  membership  in  the  Fleet  Naval 
Reserve.— (39  Stat.,  589,  chap.  417.) 

See  above  (39  Stat.,  587-588),  as  to  eligibility  of  former  officer  dismissed  from  the  Navy  and 
subsequently  pardoned. 

1448 


Naval  Reserve  Force.  Ft.  3.  STATUTES  AT  LARGE.  Aug.  29,  1916. 

[1916,  Aug.  29.  Transfer  of  enlisted  men  to  Fleet  Naval  Reserve.]  In  addi- 
tion to  the  enrollments  in  the  Fleet  Naval  Reserve  above  provided,  the  Secretary 
of  the  Navy  is  authorized  to  transfer  to  the  Fleet  Naval  Reserve  at  any  time 
within  his  discretion  any  enlisted  man  of  the  naval  service  with  twenty  or  more 
years'  naval  service,  and  any  enlisted  man,  at  the  expiration  of  a  term  of  enlist- 
ment who  may  be  then  entitled  to  an  honorable  discharge,  after  sixteen  years' 
naval  service:  Provided,  That  such  transfers  shall  only  be  made  upon  voluntary 
application  and  in  the  rating  in  which  then  serving,  and  the  men  so  transferred 
shall  be  continued  in  the  Fleet  Naval  Reserve  until  discharged  by  competent 
authority.— (39  Stat.,  589-590,  chap.  417.) 

[1916,  Aug.  29.  Minimum  active  service,  enrolled  members,  Fleet  Naval 
Reserve.]  The  Secretary'  of  the  Navy  is  authorized  to  assign  any  member  of 
the  Fleet  Naval  Reserve  to  active  duty  for  training  on  board  ship,  upon  the 
application  of  such  member,  but  any  member  who  has  failed  to  perform  three 
months'  active  service  with  the  Navy  in  any  term  of  enrollment  shall,  on  the 
next  reenrollment,  receive  retainer  pay  at  the  rate  of  $12  per  annum  until  such 
time  as  he  shall  have  completed  three  months'  active  service.  The  three  months' 
active  service  with  the  Navy  may  be  taken  in  one  or  more  periods,  at  the  elec- 
tion of  the  member:  Provided,  That  no  member  shall  be  entitled  to  travel 
allowance  unless  the  period  of  such  active  service  is  for  not  less  than  one  month, 
or  unless  specifically  provided  for  by  such  regulations  as  may  be  prescribed  by 
the  Secretary  of  the  Navy. — (39  Stat.,  590,  chap.  417.) 


Amendment  to  this  paragraph  was  made  by  act 
of  April  25,  1917  (40  Stat.,  37),  which  ex- 
pressly repealed  the  words  "on  board  ship  " 
after  the  word  "training"  in  the  first  sen- 
tence of  the  paragraph  as  set  forth  above. 

By  act  of  June  4,  1920,  section  9  (41  Stat.,  837), 
it  was  provided  "that  hereafter  the  mini- 


mum amount  of  active  service  required  for 
the  maintenance  of  the  efiiciency  of  the 
Fleet  Naval  Reserve  shall  be  the  same  as 
for  the  Naval  Reserve. "  (See  below,  under 
"Naval  Reserve, "  as  to  active  service  for 
maintaining  efficiency  therein.) 


[1916,  Aug.  29.  Retainer  pay,  enrolled  men,  Fleet  Naval  Reserve;  retire- 
ment of  transferred  members.]  The  retainer  pay  of  the  enrolled  men  of  the 
Fleet  Naval  Reserve  shall  be  the  same  as  for  the  enrolled  men  of  the  Naval 
Reserve  and  shall  be  computed  in  like  manner:  Provided^  That  nothing  herein 
shall  operate  to  reduce  the  retainer  pay  allowed  by  existing  law  to  erdisted  men 
who,  after  sixteen  years'  or  more  naval  service,  are  transfeiTed  to  the  Fleet 
Naval  Reserve,  nor  to  deny  to  such  enlisted  men  their  privilege  of  retirement 
upon  completing  thirty  years'  naval  service  as  now  provided  by  law. — (39  Stat., 
590,  chap.  417;  40  Stat.,  710,  chap.  114.) 


This  provision  was  expressly  amended  and  re- 
enacted  to  read  as  above  by  act  of  July  1, 
1918  (40  Stat.,  710).  As  to  retirement  of 
transferred  members,  see  below  (39  Stat., 


591) ;  as  to  retirement  of  enrolled  members, 
see  above  (39  Stat.,  588). 
See  note  to  section  1556,  Revised  Statutes,  un- 
der "37.  Naval  Reserve  Force." 


[1916,  Aug.  29.  Constructive  service;  men  discharged  before  expiration  of 
enlistment.]  That  for  all  purposes  of  this  act  a  complete  enlistment  during 
minority  and  any  enlistment  terminated  within  three  months  prior  to  the  expi- 
ration of  the  term  of  enlistment  by  special  order  of  the  Secretary  of  the  Navy 
shall  be  considered  as  four  years'  service. — (39  Stat.,  590,  chap.  417.) 


1449 


Aug.  29,  1916. 


PL  S.  STATUTES  AT  LARGE. 


Naval  Reserve  Force. 


[1916,  Aug.  29.  Retainer  pay,  officers,  Fleet  Naval  Reserve.] 


the  retainer  pay  of  "all  members"  of  the  Naval 
Reserve  Force,  "except  officers  in  the  Naval 
Auxiliary  Reserve  and  transferred  members 
of  the  Fleet  Naval  Reserve.  " 

See  note  to  section  1556,  Revised  Statutes, 
under  "37.  Naval  Reserve  Force." 


This  clause  read  as  follows: 

"The  annual  rotainor  ]nvy  of  ofTicera  of  the 
Fleet  Naval  Reserve  shall  l)e  two  months' 
base  pay  of  the  corresponding  rank  in  the 
Navy."     (39  Stat.,  590,  chap.  417.) 

It  was  superseded  hy  act  of  July  1,  1918  (40 
Stat.,  710),  whicii  made  other  provision  as  to 

[1916,  Aug.  29.  Increased  retainer  pay  on  reenrollment.]  Reenrollments 
in  the  Fleet  Naval  Reserve  shall  be  for  four  years.  Officers  and  men  em-olling 
in  the  Fleet  Naval  Reserve  within  four  months  of  the  date  of  the  termination 
of  their  last  naval  service  or  reenroUing  wdthin  four  months  of  the  date  of  the 
terminatiom  of  their  last  term  of  enrollment  shall  receive  an  increase  of  twenty- 
five  per  centum  of  their  retainer  pay  for  each  such  enroUment. — (39  Stat.,  590, 
chap.  417.) 

See  above  (39  Stat.,  588),  as  to  increased  re- 
tainer pay  on  reenrollment;  and  see  note  to 
section  1556,  Revised  Statutes,  under  "37. 
Naval  Reserve  Force. " 

No  enrolled  member  shall  receive  retainer  pay 
in  excess  of  amount  authorized  to  members 
ha\dng  had  16  years'  continuous  service. 
(Act  July  1,  1918,  40  Stat.,  710-711.) 

[1916,  Aug.  29.  Enrolled  members  reenlisting  in  the  regular  naval  service.] 
That  men  who  have  enrolled  in  the  Fleet  Naval  Reserve  within  four  months 
of  the  date  of  their  discharge  from  the  regular  naval  service  shall,  upon  reen- 
listment  in  the  regular  naval  service  within  four  months  of  the  date  of  discharge 
from  the  Fleet  Naval  Reserve,  be  entitled  to  the  same  gratuity  and  additional 
pay  as  if  they  had  reenlisted  in  the  regular  naval  service  within  four  months  of 
discharge  therefrom. — (.39  Stat.,  590,  chap.  417.) 


Service  in  the  Navy,  Marine  Corps,  National 
Naval  Volunteers,  etc.,  counted  as  continu- 
ous service  in  the  Naval  Reserve  Force  for 
piu'pose  of  computing  retainer  pay,  (Act 
July  1,  1918,  40  Stat.,  710.) 


Active  reser\'e  service  credited  to  enlisted  men 
and  warrant  officers  of  the  Navy  and  Marine 
Corps  for  retirement,  continuous  service 
pay,  and  longe\dty  pay,  in  certain  cases: 
See  act  of  July  ll,'l919  (41  Stat.,  141);  see 
also  notes  to  sections  1569  and  1573,  Revised 


Statutes,  as  to  pay  of  enlisted  men  of  the 
Navy;  note  to  section  1556,  Re\'ised  Stat- 
utes, as  to  pay  of  officers  of  the  Navy  and 
members  of  the  Naval  Reserve  Force;  and 
note  to  section  1612,  Re\ised  Statutes,  as  to 
pay  of  the  Marine  Corps. 


[1916,  Aug.  29.  Retainer  pay,  transferred  members  of  Fleet  Naval  Reserve; 
special  increases  for  heroism  and  conduct  marks.]  Members  of  the  Fleet  Naval 
Reserve  who  have,  when  transferred  to  the  Fleet  Naval  Reserve,  completed 
naval  service  of  sixteen  or  twenty  or  more  years  shall  be  paid  a  retainer  at  the 
rate  of  one-third  and  one-half,  respectively,  of  the  base  pay  they  were  receiving 
at  the  close  of  their  last  naval  service  plus  all  permanent  additions  thereto: 
Provided^  That  the  pay  authorized  in  this  paragraph  as  a  retainer  shall  be  in- 
creased ten  per  centum  for  all  men  who  may  be  credited  with  extraordinary 
heroism  in  the  line  of  duty  or  whose  average  marks  in  conduct  for  twenty  years 
or  more  shall  not  be  less  than  ninety-five  per  centum  of  the  maximum. — (39 
vStat.,  590,  chap.  417.) 

See  note  to  section  1556,  Revised  Statutes,  under  computed  on  the  base  pay  they  are  re- 

"37.  Naval  Reserve  Force."  ceiling    when    retransf erred    to    inactive 

Retainer  pay  in  the  cases  of  certain  members,  duty,    plus    the    additions    or    increases 

Fleet  Naval  Reserve,  on  active  duty  be-  authorized    by    act   of   August   29,    1916. 

tween  June,  1920,  and  July,  1922,  shall  be  (Act  May  18,  1920,  sec.  6,  41  Stat.,  603.) 

[1916,  Aug.  29.  Retainer  pay  forfeited  for  cause.]  Any  pay  which  may  be 
due  any  member  of  the  Fleet  Naval  Reserve  shall  be  forfeited  when  so  ordered 


1450 


Naval  Reserve  Force. 


Pt.  3.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


by  the  Secretary  of  the  Navy  upon  the  failure,  under  such  conditions  as  may 
be  prescribed  by  the  Secretary  of  the  Navy,  of  such  man  to  report  for  inspec- 
tion.—(39  Stat.,  590,  chap.  417.) 


See  above  (39  Stat.,  588),  tinder  "Retainer  pay; 
conditions  of  payment;"  and  see  act  of 
June  4,  1920  (41  Stat.,  824  and  837),  for 


other  provisions   relating  to  forfeiture  of 
retainer  pay. 


[1916,  Aug.  29.  Members  warranted  or  commissioned;  retainer  pay,  etc., 
not  reduced.]  Members  of  the  Fleet  Naval  Reserve  who  have  established  their 
qualifications  by  examination  to  the  satisfaction  of  the  Secretary  of  the  Navy 
may  be  given  warrants  or  commissions  in  the  Fleet  Naval  Reserve  in  the  grades 
of  boatswain,  gunner,  carpenter,  machinist,  pharmacist,  pay  clerk,  ensign  for 
deck  or  engineering  duties,  or  in  the  lowest  grades  of  the  staff  corps :  Provided 
further,  That  those  so  warranted  or  commissioned  shall  not  be  deprived  of  the 
retainer  pay,  allowances,  or  gratuities  to  which  they  would  be  otherwise 
entitled.— (39  Stat.,  590-591,  chap.  417.) 

[1916,  Aug-.  29.  Fleet  Naval  Reserve,  laws  governing;  discharge  and  re- 
tirement ;  uniform  outfit.]  Men  transferred  to  the  Fleet  Naval  Reserve  shall  be 
governed  by  the  laws  and  regulations  for  the  government  of  the  Navy  and  shall 
not  be  discharged  from  the  Naval  Reserve  Force  without  their  consent,  except 
by  sentence  of  a  court-martial.  They  may,  upon  their  own  request,  upon 
completing  thirty  years'  service,  including  naval  and  fleet  naval  reserve  service, 
be  placed  on  the  retired  list  of  the  Navy  with  the  pay  they  were  then  receiving 
plus  the  allow^ances  to  which  enlisted  men  of  the  same  rating  are  entitled  on 
retirement  after  thirty  years'  naval  service.  They  shall  be  required  to  keep 
on  hand  such  part  of  the  uniform-clothing  outfit  as  may  be  prescribed  by  the 
Secretary  of  the  Navy. — (39  Stat.,  591,  chap.  417.) 


As  to  laws  and  regulations  governing  enrolled 
members,  see  act  of  July  1,  1918  (40  Stat., 
712);  as  to  retirement  of  enrolled  members, 
see  above  (39  Stat.,  588),  under  "Retire- 


ment, enrolled  members,  20  years'  service." 
See  also  above  (39  Stat.,  590,  as  amended), 
as  to  retirement  of  transferred  members. 


[1916,  Aug.  29.  Retired  enlisted  men;  active  duty;  pay,  etc.]  The  Secre- 
tary of  the  Navy  is  authorized  in  time  of  war  or  when  a  national  emergency 
exists  to  call  any  enlisted  man  on  the  retired  list  into  active  service  for  such 
duty  as  he  may  be  able  to  perform.  While  so  employed  such  enlisted  men  shall 
receive  the  same  pay  and  allowances  they  were  receiving  when  placed  on  the 
retu-ed  list.— (39  Stat.,  591,  chap.  417.) 

See  act  of  March  3, 1915  (38  Stat.,  941),  and  references  thereunder,  as  to  retired  enlisted  men. 

NAVAL    RESERVE. 

[1916,  Aug.  29.  Qualifications  for  Naval  Reserve.]  Members  of  the  Naval 
Reserve  Force  who  have  enrolled  for  general  service  and  are  citizens  of  the 
United  States  are  eligible  for  membership  in  the  Naval  Reserve.  No  person 
shall  be  enrolled  in  or  transferred  to  this  class  unless  he  estabUshes  satisfactory 
evidence  as  to  his  qualifications  for  duty  on  board  combatant  ships  of  the 
Navy.— (39  Stat.,  591,  chap.  417;  40  Stat.,  710,  chap.  114.) 


54641°— 22- 


-92 


1451 


Aug.  29,  1916. 


PL  S.  STATUTES  AT  LARGE. 


Naval  Reserve  Force. 


This  parap:iaph   was  expressly   amended   and  The  age  limits  for  the  several  ranks,  grades,  and 

reenacted  toread  aaaboveby  actof  July  1,  ratings  on  first  enrollment  in  the  Naval 

1918  (40  Stat.,  710).  Reserve  shall  be  as  prescribed  by  the  Sec- 

Xo  }>erson  shall  enroll  in  \\\o.  Naval  Reserve  retary  of  the  Navy.     (Act  July  1,   1918, 

Force    except   for   general   service.     (Act  40  Stat.,  710.) 

June  4,  1920.  sec.  2,  41  Stat.,  834.)  | 

[1916,  Aug.  29.  Minimum  active  service  for  confirmation.]  The  minimum 
active  service  required  of  members  to  qualify  for  confirmation  in  their  rank 
or  rating  in  this  class  shall  be  three  months. — (39  Stat.,  591.  chap.  417.) 

[1916,  Aug.  29.  Minimum  service  for  maintaining  efficiency.  Naval  Eeserve.] 


This  paragraph  read  as  follows: 
"The  minimum  active  service  required  for 
maintaining  the  efficiency  of  a  member  of  this 
class  is  three  months  during  each  term  of  en- 
rollment. This  active  service  may  be  in  one 
period  or  in  periods  of  not  less  than  three  weeks 
each  year."     (39  Stat.,  591,  chap.  417.) 

It  -was  superseded  by  the  following  pro- 
vision on  the  same  subject  contained  in  act  of 
Julyl,  1918  (40  Stat.,  710): 


"That  the  minimum  active  service  required 
for  maintaining  the  efficiency  of  a  member  of 
the  Naval  Reserve  shall  be  two  months  duiing 
each  term  of  enrollment  and  an  attendance  at 
not  less  than  thirty-six  drills  during  each  year, 
or  other  equivalent  duty.  The  active  service 
may  be  in  one  period  or  in  periods  of  not  less 
than  fifteen  days  each." 


[1916,  Aug.  29.  Retainer  pay,  Naval  Reserve.] 


This  paragraph  read  as  foUo-ws: 
"The  annual  retainer  pay  of  members  in 
this  class  after  confirmation  in  rank  or  rating 
shall  be  two  months'  base  pay  of  the  corre- 
sponding rank  or  rating  in  the  Navy."  (39 
Stat.,  591,  chap.  417.) 

It   was   superseded  by   other   provisions 
contained  in  act  of  July  1,   1918  (40  Stat., 


710),  relating  to  the  retainer  pay  of  all  mem- 
bers of  the  Naval  Reserve  Force  "except 
officers  in  the  Naval  Auxiliary  Reserve  and 
transferred  members  of  the  Fleet  Naval  Re- 
serve." 

See  note  to  section  1556,  Revised  Statutes, 
under  "37.     Naval  Reserve  Force." 


NAVAL  AUXILIARY  RESERVE. 

[1916,   Aug.    29.  Qualifications  for   Naval   Auxiliary   Reserve.]     Members 

of  the  Naval  Reserve  Force  of  the  seagoing  profession  who  shall  have  been 

or  may  be  employed  on  American  vessels  of  the  merchant  marine  of  suitable 

type  for  use  as  naval  auxiliaries  and  which  shall  have  been  listed  as  such  by  tlie 

I^avy  Department  for  use  in  war,  shall  be  eligible  for  membership  in  the  Naval 

Auxiliary  Reserve. —  (39  Stat.,  591,  chap.  417.) 

No  person  shall  enroll  in  the  Naval  Reserve  Force  except  for  general  ser\T.ce.     (Act  June  4, 
1920,  sec.  2,  41  Stat..  834.) 

[1916,  Aug.  29.  Active  service  in  time  of  war.]  In  time  of  war  or  during 
the  existence  of  a  national  emergency,  persons  in  this  class  shall  be  required 
to  serve  only  in  vessels  of  the  merchant  ship  type,  except  in  cases  of  emergency, 
to  be  determined  by  the  senior  officer  present,  when  said  officer  may,  in  his 
discretion,  detail  them  for  temporary  duty  elsewhere  as  the  exigencies  of  the 
service  may  require. —  (39  Stat.,  591,  chap.  417.) 

[1916,  Aug.  29.  Requirements  for  confirmation  and  maintenance  of  ef- 
ficiency.] The  requu'ement  as  to  qualifications  of  officers  and  men  for  con- 
firmation in  rank  or  rating,  and  as  to  the  maintenance  of  efficiency  in  rank  or 
rating,  shall  be  prescribed  by  the  Secretary  of  the  Navy  and  shall  be  limited 
to  the  requirements  for  the  proper  organization,  discipline,  maneuvering, 
navigation,  and  operation  of  vessels  of  the  merchant  ship  type  while  per- 
forming auxiliary  service  to  the  fleet  in  time  of  war,  and  length  of  time  of  em- 
ployment on  board  such  vessels  in  the  merchant  service. —  (39  Stat.,  591- 
592,  chap.  417.) 


1452 


Naval  Reserve  Force.  Pt.  3.  STATUTES  AT  LARGE.  Aug.  29,  1916. 

[1916,  Aug.  29.  Military  command,  limitation  or  exercise  of.]  Officers 
in  the  Naval  Auxiliary  Reserve  shall  exercise  military  command  only  on 
board  the  ships  to  which  they  are  attached  and  in  the  naval  auxiliary  service. — 
(39  Stat.,  592,  chap.  417.) 

[1916,  Aug.  29.  Retainer  pay,  Naval  Auxiliary  Reserve.]  The  annual 
retainer  pay  of  members  in  this  class  after  confirmation  in  rank  or  rating  shall 
be  for  officers,  one  month's  base  pay  of  the  corresponding  rank  in  the  Navy, 
and  for  men,  two  montlis'  base  pay  of  the  corresponding  rating  in  the  Navy. — 
(39  Stat.,  .592,  chap.  417.) 

So  much  of  this  paragraph  as  relates  to  re- 
tainer pay  for  members,  other  than  officers, 
in  the  Naval  Auxiliary  Reserve,  was 
superseded  by  act  of  July  1,  1918  (40 
Stat.,  710). 


See   note  to   section   1556,  Revised   Statutes, 
under  "37.  Naval  Reserve  Force." 


NAVAL  COAST  DEFENSE  RESERVE. 

[1916,  Aug.  29.  Qualifications  for  Coast  Defense  Reserve.]  IVTembers  of  the 
Naval  Reserve  Force  who  may  be  capable  of  performing  special  useful 
service  in  the  Navy  or  in  connection  with  the  Navy  in  defense  of  the  coast, 
shall  be  eligible  for  membership  in  the  Naval  Coast  Defense  Reserve. —  (39 
Stat.,  592,  chap.  417.) 

[1916,  Aug.  29.  Character  of  service  for  which  enrolled.]  Persons  may  enroll 
in  this  class  for  service  in  connection  with  the  naval  defense  of  tlie  coast,  such 
as  service  with  coast-defense  vessels,  torpedo  craft,  mining  vessels,  patrol  vessels 
or  as  radio  operators,  in  various  ranks  or  ratings  corresponding  to  those  of  the 
Navy  for  which  they  shall  have  qualified  under  regulations  prescribed  by  the 
Secretary  of  the  Navy. —  (39  Stat.,  592,  chap.  417). 


No  person  shall  enroll  in  the  Naval  Reserve 
Force  except  for  general  service.  (Act 
June  4,  1920,  sec.  2,  41  Stat.,  834.) 

Not  to  perform  active  duty  on  shore  of  a  kind 
ordinarily  performed  by  civilians.  ('Act 
July  11,  1919,  41  Stat.,  138.) 


Not  to  exercise  command  except  within  par- 
ticular service  and  for  due  performance 
of  duty.     (Act  July  1,  1918,  40  Stat.,  711.) 


[1916,  Aug.  29.  Owners  of  power  boats;  enrollment;  contracts  for  use  of 
boats.]  That  the  Secretary  of  the  Navy  may  jiermit  the  enrollment  in  this  class 
of  owners  and  operators  of  yachts  and  motor  power  boats  suitable  for  naval 
purposes  in  the  naval  defense  of  the  coast;  and  is  hereby  authorized  to  enter 
into  contract  with  the  o^vners  of  such  power  boats  and  other  craft  suitable  for 
war  purposes  to  take  over  the  same  in  time  of  war  or  national  emergency 
upon  payment  of  a  reasonable  indenmity. —  (39  Stat.,  592,  chap.  417.) 


See  note  above,  as  to  "character  of  service  for 
which  enrolled;"  and  see  act  of  March  4, 


1917  (39  Stat.,  1192-1193),  as  to  procure- 
ment of  vessels,  etc.,  in  time  of  war. 


[1916,  Aug.  29.  Active  service  for  confirmation  and  efficiency.]  The  amount 
of  active  service  required  for  confirmation  in  rank  and  rating  and  for  main- 
taining efficiency  in  rank  and  rating  shall  be  the  same  as  that  required  for 
members  of  the  Naval  Reserve. —  (39  Stat.,  592,  chap.  417.) 

See  above  (39  Stat.,  591),  as  to  active  serxdce  required  for  confirmation  and  maintenance 
of  efficiency  in  the  Naval  Reserve. 


1453 


Ang.  29,  1916. 


Pt.  3.  STATUTES  AT  LARGE. 


Naval  Reserve  Force. 


[1916,  Aug.  29.  Retainer  pay,  Coast  Defense  Reserve. 


This  paragraph  read  as  follows: 
"The  annual   retainer  i)ay  of  members  of 
this  class  shall  be  the  same  as  that  of  members 
of  the  Naval  Reserve."     (39  Stat.,  592,  chap. 
417.) 


It  was  superseded  by  other  provisions 
contained  in  the  act  of  July  1,  1918  (40  Stat., 
710). 

See  note  to  section  1556,  Revised  Statutes, 
under  "37.  Naval  Reserve  Force." 


VOLUNTEER  NAVAL  RESERVE. 

[1916,  Aug.  29.  Qualifications  for  membership,  etc.]  The  Volunteer  Naval 
Reserve  shall  be  composed  of  those  members  of  the  Naval  Reserve  Force  who 
are  eligible  for  membership  in  any  one  of  the  other  classes  of  the  Naval  Reserve 
Force,  and  who  obligate  themselves  to  serve  in  the  Navy  in  any  one  of  said  classes 
without  retainer  pay  and  imiform  gratuity  in  time  of  peace. —  (39  Stat.,  592, 
chap.  417.) 


No  person  shall  enroll  in  the  Naval  Reserve 
Force  except  for  general  service.  (Act 
June  4,  1920,  sec.  2,  41  Stat.,  834.) 


See  note  to  section  1556,   Revised   Statutes, 
under  "37.  Naval  Reserve  Force." 


NAVAL    RESERVE    FLYING    CORPS. 

[1916,  Aug.  29.  Qualifications  for  membership,  etc.]  The  Naval  Reserve 
Flying  Corps  shall  be  composed  of  officers  and  student  flyers  who  have  been 
transferred  from  the  Naval  Flj^ing  Corps  to  the  Naval  Reserve  Flying  Corps 
and  of  enlisted  men  who  shall  have  been  so  transferred  under  the  same  condi- 
tions as  those  provided  by  law  for  enlisted  men  of  the  Navy  transferred  to  the 
Fleet  Naval  Reserve:  Provided,  That  surplus  graduates  of  the  aeronautic  school 
may  be  commissioned  as  ensigns  in  the  Naval  Reserve  Flying  Corps  and  pro- 
moted therein  under  such  regulations  as  may  be  prescribed  by  the  President. 
Members  of  the  Naval  Reserve  Force  skiUed  in  the  flying  of  aircraft  or  in  their 
design,  buflding,  or  operation,  shall  be  ehgible  for  membership  in  the  Naval 
Reserve  Flying  Corps.  The  amount  of  active  service  required  for  confirmation 
in  grade,  rank,  or  rating,  and  for  maintaining  efficiency  therein,  shall  be  the 
same  as  that  required  for  members  of  the  Naval  Reserve.  The  retainer  pay  of 
members  of  the  Naval  Reserve  Flying  Corps  shall  be  the  same  as  that  of  mem- 
bers of  the  Naval  Reserve.— (39  Stat.,  592,  chap.  417.) 

The  last  sentence  of  this  paragraph,  as  to  re-  within    their    particular    department    or 

tainer  pay,  was  superseded  by  other  pro-  service  for  the  due  performance  of  their 

visions  on  the  subject  contained  in  act  of  duties.     (Act  July  1,  1918,  40  Stat.,  711.) 

July  1,  1918  (40  Stat.,  710).  See  above  (39  Stat.,  582-583),  relating  to  the 

Members  not  to  exercise   command,   except  Naval  Fljing  Corps. 


MARINE    CORPS    RESERVE. 

[1916,  Aug.  29.  Established  under  laws  relating  to  Naval  Reserve  Force; 
exceptions.]  A  United  States  Marine  Corps  Reserve,  to  be  a  constituent  part, 
of  the  Marine  Corps  and  in  addition  to  the  authorized  strength  thereof,  is 
hereby  established  under  the  same  provisions  in  all  respects  (except  as  may  be 
necessary  to  adapt  the  said  provisions  to  the  Marine  Corps)  as  those  providing 
for  the  Naval  Reserve  Force  in  this  Act:  Provided,  That  the  Marine  Corps 
Reserve  may  consist  of  not  more  than  five  classes,  corresponding,  as  near  as 
may  be,  to  the  Fleet  Naval  Reserve,  the  Naval  Reserve,  the  Naval  Coast 


1454 


Coast  Guard. 


PL  3.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


Defense  Reserve,  the  Volunteer  Naval  Reserve,  and  the  Naval  Reserve  Flying 
Corps,  respectively. — (39  Stat.,  593,  chap.  417.) 


See  above  (39  Stat.,  587-592)  for  pro\isions  of 
law  relating  to  Naval  Reserve  Force. 
Amendatory  statutes. — Only  provisions 
of  law  contained  in  the  act  of  August  29,  1916, 
relating  to  the  Naval  Reserve  Force,  or  which 
are  expressly  amendatory  of  that  act,  are  made 


applicable  to  the  Marine  Corps  Reserve  by  this 
paragraph .  Other  subsequent  enactments  ap- 
ply to  the  Marine  Corps  Reserve  only  where 
specifically  named  therein.  (File  26253-737, 
Oct.  16,  1919.) 


[1916,  Aug.  29.  Old  Naval  Reserve  law  repealed  in  part.]  All  Acts  or  parts 
of  Acts  relating  to  the  Naval  Reserve  which  are  inconsistent  with  the  provisions 
of  this  Act  relating  to  the  Naval  Reserve  Force  are  hereby  repealed. — (39  Stat., 
593,  chap.  417.) 

See  act  of  ]\Iarch  3,  1915  (38  Stat.,  940-941),  and  note  thereto,  relating  to  the  Naval  Reserve. 
[1916,  Aug.  29.  Retainer  pay;  appropriations  to  which  chargeable.]  The 
retainer  pay  and  active  service  pay  of  members  of  the  Naval  Reserve  Force 
shall  be  paid  from  the  appropriation  ''Pay — the  Navy,"  and  the  retainer  pay 
and  active  service  pay  of  the  IVIarine  Corps  Reserve  shall  be  paid  from  the 
appropriation  ''Pay,  IVIarine  Corps." — (39  Stat.,  593,  chap.  417.) 

[1916,  Aug.  29.  Naval  Militia  and  National  Naval  Volunteers.     Repealed.] 

various  classes  of  the  Naval  Reserve  Force  and 
Marine  Corps  Reserve.     Some  legislation  re- 


lating to  the  Naval  Militia  was  partially  revived 
until  June  30,  1922,  by  act  of  June  4,  1920  (41 

Stat.,  817). 


The  provisions  of  the  act  of  August  29,  1916 
(39  Stat.,  593-600),  and  all  other  laws  relating  to 
the  Naval  Militia  and  the  National  Naval 
Volunteers,  were  repealed  by  act  of  July  1,  1918 
(40  Stat.,  708),  which  authorized  the  transfer 
of  members  of  the  latter  organization  to  the 

[1916,  Aug.   29.  Sale  of  fuel  to  Volunteer  Patrol  Squadrons.]     That  the 

Secretaiy  of  the  Navy  is  hereby  authorized  to  sell  at  cost  and  issue  lubricating 

oil  and  gasoline  to  vessels  of  the  Volunteer  Patrol  Squadrons  duly  enrolled  in 

the  several  naval  districts;  and  that  during  maneuvers  or  practice  drills  when 

any  vessels  of  said  Patrol  Boat  Squadrons  shall  be  acting  singly  or  as  squadrons 

imder  the  direct  command  or  control  of  an  officer  or  officers  of  the  United 

States  Navy,  gasolme  fuel  shall  be  supplied  to  them  free  of  charge. — (39  Stat., 

600,  chap.  417.) 

Amendment  to  this  paragraph  was  made  by  for  the  word  "fuel";  and  struck  out  the 

act  of  March  4,  1917  (39  Stat.,  1172),  which  word  "gasoline  "  where  it  occurs  the  second 

struck  out  the  word  "gasoline"  where  it  time  in  said  paragraph, 
first  appears  therein,  and  substituted  there- 

[1916,  Aug.  29.  Coast  Guard,  laws  to  which  subject.]  Whenever,  in  time 
of  war,  the  Coast  Guard  operates  as  a  part  of  the  Navy  in  accordance  with  law, 
the  personnel  of  that  service  shall  be  subject  to  the  laws  prescribed  for  the 
government  of  the  Navy:  Provided,  That  in  the  initiation,  prosecution,  and 
completion  of  disciplinary  action,  including  remission  and  mitigation  of  punish- 
ments for  any  offense  committed  by  any  officer  or  enlisted  man  of  the  Coast 
Guard,  the  jm-isdiction  shall  hereafter  depend  upon  and  be  in  accordance  with 
the  laws  and  regulations  of  the  department  having  jurisdiction  of  the  person 
of  such  offender  at  the  various  stages  of  such  action:  Provided  further,  That 
any  punishment  imposed  and  executed  in  accordance  with  the  provisions  of 
this  section  shall  not  exceed  that  to  which  the  offender  was  liable  at  the  time 
of  the  commission  of  his  offense. — (39  Stat.,  600,  chap.  417.) 

See  acts  of  January  28,  1915  (38  Stat.,  800),  and  October  6,  1917  (40  Stat.,  393). 


1455 


Aug.  29,  1916.  PL  S.  STATUTES  AT  LARGE.  Lighthouse  Service. 

[1916,  Aug.  29.  Expenses  of  Coast  Guard  when  serving  with  the  Navy.] 
IIiToafter  whenever,  in  uceonlancc  with  hiw,  the  expenses  of  the  Coast  Guard 
are  paid  by  the  Navy  Department,  any  naval  appropriations  from  which  pay- 
ments arc  so  made  shall  be  reimbursed  from  available  appropriations  made  by 
Congress  for  the  expenses  of  the  Coast  Guard. —  (39  Stat.,  600,  chap.  417.) 

See  section  2757,  Revised  Statutes,  and  act  of  January  28,  1915  (38  Stat.,  800). 

[1916,  Aug.  29.  Precedence  between  officers  of  Navy  and  Coast  Guard.] 
Wlienever  the  personnel  of  tlie  Coast  Guard,  or  any  part  thereof,  is  operating 
with  the  personnel  of  the  Navy  in  accordance  with  law,  precedence  between 
commissioned  officers  of  corresponding  grades  in  the  two  services  shall  be 
determined  by  the  date  of  commissions  in  those  grades. —  (39  Stat.,  600,  chap. 

417.) 

See  note  to  section  1492,  Revised  Statutes. 

[1916,  Aug.  29.  Coast  Guard  personnel,  duties;  maintenance  of  stations.] 
Any  commissioned  or  warrant  officer,  petty  officer,  or  other  enlisted  man  in  the 
Coast  Guard  may  be  assigned  to  any  duty  which  may  be  necessary  for  the 
proper  conduct  of  the  Coast  Guard;  and  the  Secretary  of  the  Treasury  in  time 
of  peace  and  the  Secretary  of  the  Navy  in  time  of  war  may,  in  his  discretion, 
man  any  Coast  Guard  station  during  the  entire  year,  or  any  portion  thereof, 
maintain  any  house  of  refuge  as  a  Coast  Guard  station,  and  change,  establish, 
and  fix  the  limits  of  Coast  Guard  districts  and  divisions. —  (39  Stat.,  600,  chap. 

417.) 

See  act  of  January  28,  1915  (38  Stat.,  800). 

[1916,  Aug.  29.  Instruction  of  Coast  Guard  at  Navy  schools.]  At  the  request 
of  the  Secretary  of  the  Treasury  the  Secretaries  of  War  and  Navy  are  author- 
ized to  receive  officers  and  enlisted  men  of  the  Coast  Guard  for  instruction  in 
aviation  at  any  aviation  school  maintained  by  the  Army  and  Navy,  and  such 
ofiicers  and  enlisted  men  shall  be  subject  to  the  regulations  governing  such 
schools.— (39  Stat.,   601,  chap.  417.) 

[1916,  Aug.  29.  Lighthouse  Service,  status  and  duties  in  war.]  The  President 
is  hereby  authorized,  whenever  in  his  judgment  a  sufficient  national  emergency 
exists,  to  transfer  to  the  service  and  jurisdiction  of  the  Navy  Department,  or 
of  the  War  Department,  such  vessels,  equipment,  stations,  and  personnel  of 
the  Lighthouse  Service  as  he  may  deem  to  the  best  interest  of  the  country,  and 
after  such  transfer  all  expenses  connected  therewith  shall  be  defrayed  out 
of  the  appropriations  for  the  department  to  which  transfer  is  made:  Provided, 
That  such  vessels,  equipment,  stations,  and  persomiel  shall  be  returned  to  the 
Lighthouse  Service  when  such  national  emergency  ceases  in  the  opinion  of  the 
l^resident,  and  nothuig  in  this  Act  shall  be  construed  as  transferrmg  the  Light- 
house Service  or  any  of  its  functions  from  the  Department  of  Commerce  except 
in  time  of  national  emergency  and  to  the  extent  herein  provided:  Provided 
further,  That  any  of  the  persomiel  of  the  Lighthouse  Service  who  may  be 
transferred  as  herein  provided  shall,  while  under  the  jurisdiction  of  the  Navy 
Department  or  War  Department,  be  subject  to  the  laws,  regulations,  and 
orders  for  the  government  of  the  Navy  or  Army,  as  the  case  may  be,  in  so  far 
as  the  same  may  be  applicable  to  persons  whose  retention  permanently  in  the 
military  service  of  the  United  States  is  not  contemplated  by  law; 

1456 


Naval  Academy.  Pt.  3.  STATUTES  AT  LARGE.  Aug.  29,  1916. 

The  Secretary  of  the  Navy,  the  Secretary  of  War,  and  the  Secretary  of 
Commerce  shall  jointly  prescribe  regulations  governing  the  duties  to  be  per- 
formed by  the  Lighthouse  Service  in  time  of  war,  and  for  the  cooperation  of  that 
service  with  the  Navy  and  War  Departments  in  time  of  peace  in  preparation 
for  its  duties  in  war,  and  this  may  include  arrangements  for  a  direct  Ime  of  com- 
munication between  the  officers  or  bureaus  of  the  Navy  and  War  Departments 
and  the  Bureau  of  Lighthouses  to  provide  for  immediate  action  on  all  com- 
munications from  these  departments. — (39  Stat.,  602,  chap.  417.) 

See  act  of  October  6,  1917  (40  Stat.,  393). 

[1916,  Aug.  29.  Eepairs  and  changes  to  capital  ships.]  The  statutory 
limit  of  $200,000  for  repairs  and  changes  to  capital  ships  of  the  Navy,  as  pro- 
vided in  the  Act  making  appropriations  for  the  naval  service  for  the  fiscal 
year  ending  June  thhtieth,  nineteen  hundred  and  eight,  approved  March 
second,  nineteen  hundred  and  seven,  is  hereby  changed  to  S300,000. —  (39  Stat., 
605,  chap.  417.) 

See  note  to  section  1538,  Re^'ised  Statutes. 

[1916,  Aug.  29.  Sale  of  unserviceable  vessels.]  The  Secretary  of  the 
Navy  is  hereby  authorized  to  sell  any  or  all  of  the  auxiliary  ships  of  the  Navy 
classified  as  coUiers,  transports,  tenders,  supply  ships,  special  types,  and  hospital 
ships,  wliich  are  eighteen  years  and  over  in  age,  which  he  deems  unsuited  to 
present  needs  of  the  Navy  and  which  can  be  disposed  of  at  an  advantageous 
price,  which  shall  not  be  less  than  fifty  per  centum  of  their  original  cost,  the 
money  obtained  from  such  sale  to  be  covered  into  the  Treasury  as  miscella- 
neous receipts. —  (39  Stat.,  605,  chap.  417.) 

See  section  1541,  Revised  Statutes,  and  note  thereto. 

[1916,  Aug.  29.  Transfer  of  lands  to  jurisdiction  of  Navy  Department.] 
That  such  land  of  the  United  States  under  the  control  of  a  particular  depart- 
ment or  other  branch  of  the  Government  that  has  been  or  may  hereafter  be 
mutually  selected  as  a  site  for  a  naval  radio  station  may,  by  direction  of  the 
President,  be  transferred  to  and  placed  under  the  control  and  jurisdiction  of 
the  Navy  Department  for  use  as  a  naval  radio  station  or  other  naval  purposes.- 
(39  Stat.,  606,  chap.  417.) 

See  section  418,  Revised  Statutes,  and  note  thereto. 

[1916,  Aug.  29.  Employment  of  professors,  Naval  Academy.]  That  the 
Secretary  of  the  Navy  is  authorized  to  employ  at  the  Naval  Academy  such 
number  of  professors  and  instructors,  including  one  professor  as  librarian,  as, 
in  his  opinion,  may  be  necessary  for  the  proper  instruction  of  the  midshipmen; 
and  that  professors  and  instructors  so  employed  shall  receive  such  compensa- 
tion for  their  services  as  may  be  prescribed  by  the  Secretary  of  the  Navy: 
Provided  further,  That  the  total  amount  so  paid  shall  not  exceed  $175,000 
annually:  And  provided  further,  That  the  Secretary  of  the  Navy  shall  report 
to  Congress  each  year  the  number  of  professors  and  instructors  so  employed 
and  the  amount  of  compensation  prescribed  for  each. — (39  Stat.,  607,  chap.  417.) 

See  note  to  section  1528,  Revised  Statutes;  and  see  act  of  May  18,  1920,  section  7  (41  Stat., 
603). 

1457 


Aug.  29,  1916. 


Pt.  3.  STATUTES  AT  LARGE. 


Marine  Corps. 


[1916,  Aug.  29.  Board  of  Visitors,  Naval  Academy.]  From  and  after  the 
passage  of  this  Act  there  shall  be  appointed  every  year,  in  the  following  manner, 
a  Board  of  Visitors,  to  visit  the  academy,  the  date  of  the  annual  visit  of  the 
board  aforesaid  to  be  fixed  by  the  Secretary  of  the  Navy:  Seven  persons  shall 
be  appointed  by  the  President  and  four  Senators  and  five  Members  of  the 
House  of  Kepresentatives  shall  be  designated  as  visitors  by  the  Vice  President 
or  President  pro  tempore  of  the  Senate  and  the  Speaker  of  the  House  of  Repre- 
sentatives, respectively,  in  the  month  of  January  of  each  year.  The  chairman 
of  the  Committee  on  Naval  Affairs  of  the  Senate  and  chairman  of  the  Com- 
mittee on  Naval  Affairs  of  the  House  of  Representatives  shall  be  ex  officio 
members  of  said  board. 

Each  member  of  said  board  shall  receive  while  engaged  upon  duties  as  a 
member  of  the  board  not  to  exceed  $5  a  day  and  actual  expenses  of  travel  by 
the  shortest  mail  routes. — (39  Stat.,  608,  chap.  417.) 

See    sections     1511-1528,    Revised     Statutes,  act  of  August  4,  1886  (24  Stat.,  268),  as  to 

relating  to  the  Naval  Academy;  and  see  expenses  of  Board  of  Visitors. 

[1916,  Aug.  29.  Marine  Corps,  number  of  officers;  distribution  in  ranks.] 
Hereafter  the  total  number  of  commissioned  officers  of  the  active  list  of  the 
line  and  staff  of  the  IVIarine  Corps,  exclusive  of  officers  borne  on  the  Navy  list 
as  additional  numbers,  shall  be  four  per  centum  of  the  total  authorized  enlisted 
strength  of  the  active  list  of  the  Marine  Corps,  exclusive  of  the  Marine  Band, 
and  of  men  under  sentence  of  discharge  by  coiu't-martial,  distributed  in  the 
proportion  of  one  officer  with  rank  senior  to  colonel  to  four  with  the  rank  of 
colonel,  to  five  with  the  rank  of  lieutenant  colonel,  to  fourteen  with  the  rank 
of  major,  to  thirty-seven  with  the  rank  of  captain,  to  thirty-one  with  the  rank 
of  first  lieutenant,  to  thirty-one  with  the  rank  of  second  lieutenant. — (39 
Stat.,  609,  chap.  417.) 

number  of  officers  in  each  gi-ade  and  rank  therein 
by  taking  the  nearest  whole  number  in  the  case 
of  a  final  fraction.  Under  such  circumstances, 
the  provision  fixing  the  total  number  of  officers 
on  the  active  list  is  controlling,  and  the  result 
is  to  increase  the  number  allowed  in  the  grade 
of  second  lieutenant  by  one  officer  in  the  present 
instance,  in  order  that  the  total  number  may 
be  fully  distributed.  This  increase  must  be 
placed  in  the  giade  of  second  lieutenant,  and 
can  not  be  placed  in  any  higher  giade.  (File 
28687-5,  Nov.  20,  1916.) 

Distribution  of  actual  number  of  officers 
when  less  than  authorized  number. — This 
paragraph  provides  for  the  distribution  of  the 
authorized  number  of  officers,  and  is  mandatory, 
when  the  MarineCorps  has  its  full  number  of  com- 
missioned officers,  as  to  the  proportion  in  which 
such  officers  shall  be  distributed  in  the  various 
ranks;  but  where  the  actual  number  of  commis- 
sioned officers  is  less  than  the  authorized  num- 
ber, it  is  within  the  discretion  of  the  Secretary 
of  the  Navy  to  place  the  shortage  in  the  higher 
or  lower  ranks,  or  to  distribute  same  between 
the  various  ranks,  as  he  deems  expedient.  (File 
28687-5:1,  Apr.  11,  1917.) 

The  act  of  August  29,  1916  (39  Stat.,  576), 
requires  that  the  actual  number  of  commis- 
sioned officers  in  the  Navy  shall  be  distributed 
in  the  various  grades  and  ranks  in  certain  pro- 


See  section  1596,  Revised  Statutes,  and  note 
thereto. 

Additional  nmnbers. — This  paragraph,  in 
80  far  as  it  deals  with  distribution  of  commis- 
sioned officers  in  the  various  grades  and  ranks 
of  the  Marine  Corps,  refers  only  to  officers  who 
are  regular  numbers  in  grade,  and  not  to  officers 
who,  for  any  reason  are,  or  may  become,  addi- 
tional numbers.  Accordingly,  in  all  computa- 
tions having  to  do  with  the  distribution  of 
officers  in  the  various  ranks  and  giades,  addi- 
tional number  officers  are  to  be  excluded  fi-om 
consideration.     (File  28687-1,  Aug.   18,  1916.) 

See  below  as  to  additional  nmnber  officers 
promoted  to  brigadier  general. 

Computations,  final  fractions. — The  clause 
in  this  act  (39  Stat.,  577),  relating  to  the  disposi- 
tion of  final  fractions  which  occur  in  computing 
the  authorized  number  of  any  corps,  gi'ade,  or 
rank  in  thf^  naval  s('r\'ice,  applies  to  the  Marine 
Corps,  and  accordingly  "the  nearest  whole 
number  shall  be  regarded  as  the  authorized 
number"  of  marine  officers  in  the  cases  men- 
tioned in  that  clause.  (File  28687-5,  Aug.  29 
and  Nov.  20,  1916.  See  below,  39  Stat.,  610, 
as  to  proportionate  ratio  of  staff  officers.) 

There  is  a  conffict  between  the  provisions  of 
the  law  fixing  the  total  number  of  commissioned 
officers  on  the  active  list  of  the  Marine  Corps, 
and  prescribing  a  method  of  determining  the 


1458 


Marine  Corps. 


PL  3.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


portions  and  in  accordance  with  computations 
to  be  made  by  the  Secretaiy  of  the  Navy;  but 
as  to  the  Marine  Corps,  when  the  actual  number 
is  less  than  the  authorized  number,  the  distri- 
bution of  the  shortage  is  a  matter  in  the  discre- 
tion of  the  Secretary  of  the  Navy.  In  the 
exercise  of  this  discretion,  the  Secretary'  decides 
that  the  actual  number  of  commissioned 
officers  in  the  Marine  Corps  shall  be  distributed 
between  the  various  ranks  in  the  same  propor- 
tion pro\'ided  by  said  act  of  August  29,  1916, 
with  reference  to  the  distribution  of  the  author- 
ized number,  thus  establishing  a  uniform  rule 


in  this  respect  for  the  Na^•y  and  Marine  Corps. 
Under  this  ruling,  only  commissioned  officers 
actually  in  the  regular  8er\-ice  may  be  counted; 
and  no  officer  is  actually  in  the  service  imtil  he 
has  accepted  his  appointment.  Computations 
should  be  based  on  definite  information  as  to 
the  actual  number  of  officers  in  the  ser\ice  on  a 
given  date,  counting  changes  due  to  new 
appointments,  casualties,  etc.  (File  28687-5:1, 
Sept.  7, 1917;  see  also  file  28687-6:5,  Aug.  19, 
1918.) 

Total  authorized  enlisted  strength. — 
See  note  to  section  1596,  Revised  Statutes. 


[1916,  Aug.  29.  Brigadier  generals;  additional  numbers;  filling  vacancies,] 
That  brigadier  generals  shall  be  appointed  from  officers  of  the  Marine  Corps 
senior  in  rank  to  lieutenant  colonel:  Provided  further,  That  the  promotion  to 
the  grade  of  brigadier  general  of  any  officer  now  or  hereafter  carried  as  an 
additional  nmnber  in  the  grade  or  with  the  rank  of  colonel  shall  be  held  to 
fill  a  vacancy  in  the  grade  of  brigadier  general. — (39  Stat.,  609,  chap.  417.) 

Promotion  of  additional  number  colo- 
nel.— Any  officer  carried  as  an  additional  number 
in  the  grade  of  colonel  will,  if  promoted  to  the 
grade  of  brigadier  general,  immediately  become 
a  regular  nimil^er  in  the  latter  grade,  and  will 
continue  to  be  carried  as  a  regiilar  number 
therein,  unless  by  operation  of  some  other  law 
applicable  to  his  specific  case  his  status  should 
revert  to  that  of  an  additional  number  in  gi"ade. 
(File  28687-1,  Aug.  18,  1916.) 

A  colonel  carried  as  an  additional  number  by 
xirtue  of  section  1605,  Re\-ised  Statutes,  as 
amended  by  act  of  June  16,  1906  (34  Stat.,  296 ), 
would  cease  to  be  an  additional  number  upon 
promotion  to  the  gi-ade  of  brigadier  general. 
(File  28687-1,  Aug.  18,  1916.) 

A  colonel,  serving  as  Major  General  Com- 
mandant of  the  Marine  Corps  imder  the  act  of 
December  19,  1913  (38  Stat.,  201),  would  con- 
tinue to  be  an  additional  number  while  so  serv- 
ing, although  in  the  meantime  promoted  to  the 
gi-ade  of  brigadier  general.  (File  28687-1, 
Aug.  18,  1916.    See  note  to  sec.  1601,  R.  S.) 

If  a  colonel  should  be  appointed  to  an  exist- 
ing vacancy  in  the  position  of  Major  General 
Commandant  at  the  time  when  the  grade  of 
brigadier  general  was  full,  although  said  colonel 
would  thereupon  become  an  additional  number 
in  the  grade  of  colonel,  nevertheless  he  could 
not  under  the  law  be  promoted  to  the  grade  of 
brigadier  general  unless  a  vacancy  occurred 
therein.  Should  a  former  Major  General  Com- 
mandant be  in  the  gi-ade  of  brigadier  general  as 
an  additional  number,  a   vacancy  thereafter 

[1916,  Aug.  29.  Major  General  Commandant  counted  as  senior  to  colonel.] 
That  in  determining  the  officers  with  rank  senior  to  colonel  there  shall  be  in- 
cluded the  officer  serving  as  major  general  commandant. — (39  Stat.,  609,  chap. 

417.) 


occurring  would  be  immediately  fiUed,  by 
operation  of  law,  by  the  additional  number 
brigadier  general  becoming  a  regular  number  in 
that  gi-ade.  If  thereafter  another  vacancy 
should  occur  in  the  grade  of  brigadier  general, 
the  additional  number  colonel  8er\ing  as 
Major  General  Commandant  might  legally  be 
promoted  thereto,  but  he  would  become  an 
additional  number  brigadier  general  under  the 
act  of  December  19,  1913,  and  a  vacancy  would 
stiU  exist  to  which  a  regiilar  niunber  colonel 
could  be  promoted.  (File  28687-1,  Aug.  18, 
1916.) 

Date  of  rank  on  promotion. — The  date  of 
rank  given  officers  of  the  Marine  Corps  on  pro- 
motion should  ordinarily  be  the  date  of  the 
vacancy  to  which  promoted;  but  in  no  case  will 
an  officer  permanently  or  temporarily  promoted 
be  given  rank  fi'om  a  date  earlier  than  his  date 
of  rank  in  the  lower  grade.  (File  28687-5:1, 
Sept.  7,  1917.    See  note  to  sec.  1458,  R.  S.) 

Vacancies  resulting  from  the  President's 
order  of  March  26,  1917,  increasing  the  author- 
ized numl)er  of  enUsted  men  in  the  Marine 
Corps,  as  authorized  by  this  act  (39  Stat.,  612), 
were  created  on  the  date  of  said  order;  and 
vacancies  resulting  from  the  temporary  increase 
of  enlisted  men  authorized  by  act  of  May  22, 
1917,  were  created  on  the  date  of  said  act. 
(File  28687-5:1,  Sept.  7,  1917.) 

Rank  of  brigadier  generals  and  rear 
admirals. — See  note  to  section  1466,  Re\ised 
Statutes. 


See  below  as  to  appointment  of  Major  General 
Commandant  from  rank  of  colonel;  and 
see  above,  as  to  promotion  of  additional 
number  colonel;  see  also  note  to  section 
1601,  Revised  Statutes. 


This  provision  has  the  effect  of  making 
the  Major  General  Commandant  one  of  the 
authorized  number  of  officers  above  the  rank 
of  colonel,  as  though  the  law  read,  that  there 
shall  be  one  major  general  commandant,  and 
so  many  brigadier  generals,  etc.  (File  28687-1, 
Aug.  18,  1916.) 


1459 


Aug.  29,  1916, 


rt.  S.  .STATUTES  AT  LARGE. 


Marine  Corps. 


[1916,  Aug.  29.  Appointment  as  Major  General  Commandant.]  That 
appouitmonts  horoaftcr  made  to  the  position  of  major  general  commandant 
under  the  provisions  of  the  Act  approved  December  nineteenth,  nuieteen 
hundred  and  thirteen,  entitled  "An  Act  to  make  the  tenure  of  office  of  the 
major  general  commandant  of  the  Marine  Corps  for  a  term  of  four  years," 
shall  be  made  from  oflicers  of  the  active  list  of  the  Marme  Corps  not  below  the 
rank  of  colonel.— (39  Stat.,  609,  chap.  417.) 


Should  the  authorized  num])er  of  officers  senior 
to  colonel  be  full,  this  could  not  operate  to 
restrict  the  President 's  discretion  by  requiring 
him  to  appoint  another  brigadier  general  to 
fill  the  vacancy  and  preventing  him  from 
appointing  a  colonel  should  he  desire  to  do  so. 
(File  28687-1,  Aug.  18, 1916.) 


See  act  of  December  19,  1913  (38  Stat.,  241), 
aud  note  to  section  1601,  Revised  Statutes. 
Appointment  from  rank  of  colonel. — 
This  provision  expressly  confers  upon  the 
President  full  discretion  to  fdl  a  vacancy  in  the 
position  of  Major  General  Commandant  from 
officers  of  the  rank  of  colonel  as  well  as  from 
those  having  the   rank  of  brigadier  general. 

[1916,  Aug.  29.  Kank  of  senior  staff  officers;  counted  as  colonels.]  That 
the  olhcers  serving  in  the  senior  grade  of  the  Adjutant  and  Inspector's,  Quarter- 
master's, and  Paymaster's  Departments  shall,  while  serving  therein,  have  the 
rank,  pay,  and  allowances  of  a  brigadier  general:  And  provided  further,  That 
for  the  piu"pose  of  determining  the  number  of  officers  in  the  various  ranks  as 
herein  provided  such  staff  officers  shall  be  counted  as  being  of  the  rank  of 
colonel.— (39  Stat.,  609-610,  chap.  417.) 

See  note  to  section  1602,  Revised  Statutes. 

[1916,  Aug.  29.  Permanent  staff  officers  not  eligible  for  line  promotion.] 
That  officers  holding  permanent  appointments  in  the  staff  departments  shall 
not  be  eligible  for  appointment  to  the  grade  of  brigadier  general  of  the  line  as 
hereinbefore  provided. — (39  Stat.,  610,  chap.  417.) 

[1916,  Aug.  29.  Organization  of  staff  departments;  number  of  officers; 
filling  vacancies.]  The  total  commissioned  personnel  of  the  active  list  of  the 
staff  departments,  whether  serving  therein  under  permanent  appointments  or 
under  temporary  detail,  as  herein  provided,  shall  be  eight  per  centum  of  the 
authorized  commissioned  strength  of  the  IVIarine  Corps,  and  of  this  total  one- 
fiftli  shall  constitute  the  adjutant  and  inspector's  department,  one-fifth  the 
paymaster's  department,  and  tliree-fifths  the  quartermaster's  department. 

No  further  permanent  appointments  shall  be  made  in  any  grade  in  any  staff 
department.  Any  vacancy  hereafter  occurring  in  the  lower  grade  of  any  staff 
department  shall  be  filled  by  the  detail  of  an  officer  of  the  line  for  a  period  of 
four  years  unless  sooner  relieved;  any  vacancy  hereafter  occurring  in  the  upper 
grade  of  any  staff  department  shall  be  filled  by  the  appointment  of  an  officer 
with  the  rank  of  colonel  holding  a  permanent  appointment  in  the  staff  depart- 
ment in  which  the  vacancy  exists,  or  of  some  other  officer  holding  a  permanent 
appointment  in  such  staff  department  in  case  there  be  no  permanent  staff 
officer  with  the  rank  of  colonel  in  that  department,  or  of  a  colonel  of  the  line 
in  case  there  be  no  officer  holding  a  permanent  appointment  in  such  staff 
department.  Such  appointments  shall  be  made  by  the  President  and  be  for  a 
term  of  four  years,  and  the  officer  so  appointed  shall  be  recommissioned  in  the 
grade  to  which  appointed. — (39  Stat.,  610,  chap.  417.) 


1460 


Marine  Corps. 


Pt.  S.  STATUTES  AT  LARGE. 


Aug.  29,  1916. 


See  note  to  section  1598,  Revised  Statutes. 

Computations  in  staff  departments. — 
The  provision  of  this  act  (39  Stat.,  577)  relating 
to  the  disposition  of  final  fractions  does  not  in 
terms  apply  to  the  distribution  of  the  authorized 
number  of  officers  between  the  three  staff  de- 
partments. The  total  number  in  the  three 
departments  should  be  8  per  centum  of  the 
authorized  commissioned  strength  of  the 
Marine  Corps,  exclusive  of  additional  niunbers. 
WTiere  counting  the  nearest  whole  number  in 
cases  of  final  fi-actions  in  computing  the  number 


for  each  department  would  increase  the  author- 
ized number  for  the  three  departments  by  one, 
and  disregarding  such  fractions  would  leave  a 
shortage  of  two  officers  in  the  three  departments, 
held,  that  the  final  fi-actions  will  be  disregarded 
and  the  two  officers  remaining  will  be  distri- 
buted between  the  three  departments  by  the 
Secretary  of  the  Naw,  upon  recommendation 
of  the  Slajor  General  Commandant,  in  such 
manner  as  mav  be  to  the  best  interest  of  efficient 
administration.     (File  28687-5,  Nov.  20,  1916.) 


[1916,  Aug.  29.  Permanent  staff  officers  reappointed  in  the  line.] 


This  paragraph  read  as  follows: 
"That  prior  to  June  thirtieth,  nineteen  hun- 
dred and  eighteen,  an  officer  holding  a  perma- 
nent appointment  in  any  staff  department 
may,  upon  his  own  application,  with  the  ap- 
proval of  the  President,  be  reappointed  in  the 
line  of  the  Marine  Corps  in  the  grade  and  with 
the  rank  he  would  hold  on  the  date  of  his  reap- 
pointment if  he  had  remained  continuously  in 
the  Une:  Provided,  That  no  officer  holding  a 
permanent  appointment  in  any  staff  depart- 
ment shall  be  recommissioned  in  the  line  with 
the  rank  of  colonel  or  lieutenant  colonel:  Pro- 


vided further,  That  such  staff  officer  shall,  before 
being  reappointed  in  the  line  of  the  Marine 
Corps  as  above  pro^dded,  perform  line  duties 
for  one  year,  at  the  expiration  of  which  time 
he  shall  as  a  prerequisite  to  reappointment  in 
the  line  be  required  to  establish  to  the  satis- 
faction of  an  examining  board  consisting  of 
line  officers  of  the  Marine  Corps  his  physical, 
mental,  and  professional  fitness  for  the  per- 
formance of  line  duty."  (39  Stat.,  610,  chap. 
417.') 

It  expired  by  its  terms  on  June  30,  1918, 
and  is  no  longeer  in  force. 


[1916,  Aug.  29.  Common  promotion  list,  Marine  Corps.]  That  for  the 
purpose  of  advancement  in  rank  to  and  including  the  grade  of  colonel,  all  com- 
missioned officers  of  the  line  and  staff  of  the  IVIarine  Corps  shall  be  placed  on  a 
common  list  in  the  order  of  seniority  each  would  hold  had  he  remained  con- 
tinuously in  the  line.  All  advancements  in  rank  to  captain,  major,  lieutenant 
colonel,  and  colonel  shall,  subject  to  the  usual  examinations,  be  made  from 
officers  with  the  next  junior  respective  rank,  whether  of  the  line  or  staff,  in  the 
order  in  which  their  names  appear  on  said  list. —  (39  Stat.,  610,  chap.  417.) 

See  note  to  section  1599,  Revised  Statutes,  under  "Laws  relating  to  promotion  construed." 

[1916,  Aug.  29.  Second  lieutenants,  qualifications;  age;  examination; 
former  officers  ;  probation ;  midshipmen  failing  to  graduate.]  Appointees  to  the 
grade  of  second  lieutenant,  if  appointed  from  civil  life,  shall  be  between  the  ages 
of  twenty  and  twenty-five  years,  and  before  receiving  a  commission  in  the 
IVlarine  Corps,  each  appointee  shall  establish  to  the  satisfaction  of  the  Secretary 
of  the  Navy  his  mental,  physical,  moral,  and  professional  qualifications  for  such 
commission:  Provided,  The  President  of  the  United  States  be,  and  hereby  is, 
authorized,  by  and  with  the  advice  and  consent  of  the  Senate,  to  appoint  as 
second  lieutenants  on  the  active  list  in  the  United  States  Marine  Corps,  to  take 
rank  at  the  foot  of  the  list  of  second  lieutenants  as  it  stands  at  the  date  of  rein- 
statement, former  officers  of  the  Marine  Corps  who  resigned  from  the  naval 
service  in  good  standing:  Provided,  That  they  shall  establish  their  moral, 
physical,  mental,  and  professional  qualifications  to  perform  the  duties  of  that 
grade  to  the  satisfaction  of  the  Secretary  of  the  Navy:  Provided  further.  That 
the  Secretary  of  the  Navy,  in  his  discretion,  may  waive  the  age  limit  in  favor 
of  the  aforesaid  former  officers  of  the  Marine  Corps:  Provided  further,  That  the 
prior  services  of  such  officers  and  the  service  after  reinstatement  shall  be  not 
less  than  thirty  years  before  the  age  of  retirement.  That  appointments  from 
noncommissioned  officers  of  the  Marine  Corps  and  from  civil  life  shall  be  for  a 
probationary  period  of  two  years  and  may  be  revoked  at  any  time  during  that 

1461 


Aug.  29,  1916. 


rt.  S.  STATUTES  AT  LARGE. 


Marine  Corps. 


period  by  the  Secretary  of  the  Navy:  Provided  further ,  That  the  rank  of  such 
officers  of  the  same  date  of  appointment  among  themselves  at  the  end  of  said 
probationary  period  sliall,  with  the  approval  of  the  Secretary  of  the  Navy,  be 
determined  by  the  report  of  a  board  of  Marine  officers  who  shall  conduct  a 
competitive  professional  examination  under  such  rules  as  may  be  prescribed  by 
the  Secretary  of  the  Navy  and  the  rank  of  such  officers  so  determined  shall  be 
as  of  date  of  original  appointment  with  reference  to  other  appointments  to  the 
Marine  Corps:  Provided  further,  That  no  midshipman  at  the  United  States 
Naval  Academy  or  cadet  at  the  United  States  Military  Academy  who  fails  to 
graduate  therefrom  sliall  be  eligible  for  appointment  as  a  commissioned  officer 
in  the  Marine  Corps  until  after  the  graduation  of  the  class  of  which  he  was  a 
member.— (39  Stat.,  610-611,  chap.  417.) 

Probationary  second  lieutenants  could  be  given 

probationary     appointments     in     higher 

grades   'during   the   continuance   of   the 

present  war,' '  under  the  act  of  May  22, 

1917,  section  10  (40  Stat.,  87). 
See  note  to  section  1599,  Re\'ised  Statutes. 

Vacajicies  required. — Where  the  number 
of  officers  allowed  a  given  grade,  as  in  the  case 
of  second  lieut"nants,  is  fixed  by  law,  such 
number  can  not  be  exceeded.     Accordingly, 


bationary  appointments  does  not  apply  to 
former  officers  of  the  Marine  Corps  who  are 
reinstated  as  second  lieutenants  after  they 
have  established,  by  examination,  their  ex- 
isting qualifications  to  perform  the  duties  of 
that  grade.  (File  13261-544:1,  Oct.  10,  1916.) 
It  is  significant  that  the  law  requires  ci\ilians 
to  establish  their  qualifications  for  a  '  'commis- 
sion" in  the  Marine  Corps;  while  it  requires 
former  officers  to  establish  their  qualifications 
for  the '  'duties  "  of  the  grade  to  which  appointed 
(File  13261-544:  1,  Oct.  10, 1916.) 

Promotion  of  probationary  oflB.cer. — 
The  earliest  date  of  commission  in  the  gi'ade  of 
captain  which  may  be  assigned  a  probationary 
officer  of  the  Marine  Corps  is  the  date  on  which 
he  completed  his  probationary  period.  (File 
29226-6:4,  Apr.  28,  1921.) 


midshipmen  graduating  from  the  Naval  Acad- 
emy can  not  be  commissioned  as  second  lieu- 
tenants in  excess  of  the  number  in  that  grade 
fixed  by  law,  even  though  the  result  would 
overfill  the  grade  at  most  only  for  a  period  of 
a  few  days.  (File  13261-486,  June  8,  1916, 
citing  23  Op.  Attv.  Gen.,  30,  35;  file  26521-67, 
June  4,  1913;  26521-67:1,  Dec.  4,_  1913.) 

Former  oflS.cers. — The    provision    for    pro- 

[1916,  Aug.  29.  Warrant  officers,  Marine  Corps.]  That  the  warrant  grades 
of  marine  gunner  and  c{uartermaster  clerk  are  hereby  established,  and  the 
appointment  as  herein  prescribed  of  twenty  marine  gunners  and  twenty  quarter- 
master clerks  is  hereby  authorized.  Officers  in  those  grades  shall  have  the  rank 
and  receive  the  pay,  allowances  and  privileges  of  retirement  of  warrant  officers 
in  the  Navy.  They  shall  be  appointed  from  the  noncommissioned  officers  of 
the  Marine  Corps  and  clerks  to  quartermasters  now  serving  as  such  and  who 
have  performed  field  service.— (39  Stat.,  611,  chap.  417.) 


By  act  of  May  22,  1917,  section  11  (40  Stat.,  87), 
the  appointment  was  authorized  of  30 
marine  gunners  and  30  quartermaster's 
clerks,  additional  to  the  number  prescribed 
by  this  paragraph. 

act  of  June  4,  1920  (41  Stat.,  830),  the 
authorized  number  of  warrant  officers  in 
the  Marine  Corps  was  increased  by  not 
exceeding  50,  to  provide  for  the  appoint- 
ment of  certain  officers  who  held  tempo- 
rary commissions  during  the  war. 


By 


See  notes  to  sections  1405,  1487,  and  1566, 
Revised  Statutes,  as  to  pay  and  allowances, 
etc.,  of  warrant  officers  in  the  Navy;  see 
also  act  of  March  4,  1917  (39  Stat.,  1188), 
as  to  foreign  shore  service  pay  of  warrant 
officers  in  the  Marine  Corps;  and  see  act  of 
July  11,  1919  (41  Stat.,  141),  as  to  warrant 
officers  who  served  as  commissioned 
officers  in  the  Marine  Corps  Reserve,  and 
note  to  section  1612,  Revised  Statutes. 


[1916,  Aug.  29.  Retirement  of  colonels  as  brigadier  generals.] 


This  paragraph  reads  as  follows: 
"That  officers  of  the  Marine  Corps  with  the 
rank  of  colonel  who  shall  have  served  faithfully 
for  forty-five  years  on  the  active  list  shall,  when 
retired^  have  the  rank  of  brigadier  general;  and 
such  officers  who  shall  hereafter  be  retired  at 
the  age  of  sixty-four  years  before  having  served 
for  forty-five  years,  but  who  shall  have  served 
faithfully  on  the  active  list  until  retired,  shall, 


on  the  completion  of  forty  years  fi'om  their 
entry  in  the  naval  service,  have  the  rank  of 
brigadier  general."     (39  Stat.,  611,  chap.  417.) 

It  was  expressly  repealed  by  act  of  May 
22,  1917,  section  14  (40  Stat.,  87). 

See  section  1481,  Revised  Statutes,  for  some- 
what similar  provision  relating  to  staff  officers 
of  the  Navy. 


1462 


Marine  Corps.  Pt.3.    STATUTES  AT  LARGE.  Aug.  29,  1916. 

[1916,  Aug.  29.  Marine  Corps,  examinations  for  promotion.]  The  provisions 
of  sections  fourteen  hundred  and  ninety-three  and  fourteen  hundred  and  ninety- 
four  of  the  Revised  Statutes  of  the  United  States  shall  apply  to  the  Marine 
Corps.— (39  Stat.,  611,  chap.  417.) 

See  sections  1493-1494,  and  note  to  section  1599,  Revised  Statutes. 

[1916,  Aug.  29.  Officers  failing  in  examination  for  promotion.]  In  lieu  of 
suspension  from  promotion  of  any  officer  of  the  Marine  Corps  who  hereafter 
fails  to  pass  a  satisfactory  professional  examination  for  promotion,  or  who  is 
now  under  suspension  from  promotion  by  reason  of  such  failure,  such  officer 
shall  suffer  loss  of  numbers,  upon  approval  of  the  recommendation  of  the 
examining  board,  in  the  respective  ranks,  as  follows:  Lieutenant  colonel,  one; 
major,  two;  captain,  three;  first  lieutenant,  five;  second  lieutenant,  eight: 
Provided,  That  any  such  officer  shall  be  reexamined  as  soon  as  may  be  expedient 
after  the  expiration  of  sLx  months  if  he  in  the  meantime  again  becomes  due  for 
promotion,  and  if  he  does  not  in  the  meantime  again  become  due  for  promotion 
he  shall  be  reexamined  at  such  time  anterior  to  again  becoming  due  for  promo- 
tion as  may  be  for  the  best  interests  of  the  service:  Provided  further,  That  if 
any  such  officer  fails  to  pass  a  satisfactory  professional  reexamination  he  shall 
be  honorably  discharged  with  one  year's  pay  from  the  Marine  Corps. — (39 
Stat.,  611-612,  chap.  417.) 

See  note  to  section  1599,  Revised  Statutes;  and    [  note  thereto,  for  law  relating  to  the  Navy 

see  section   1505,    Revised   Statutes,   and    |  on  the  same  subject. 

[1916,  Aug.  29.  Authorized  enlisted  strength.  Marine  Corps.]  Hereafter 
the  number  of  enlisted  men  of  the  Marine  Corps  shall  be  exclusive  of  those  sen- 
tenced by  court-martial  to  discharge.     *     *     * 

The  President  is  authorized,  when,  in  his  judgment,  it  becomes  necessary 
to  place  the  country  in  a  complete  state  of  preparedness,  to  further  increase 
the  enlisted  strength  of  the  Marine  Corps  to  seventeen  thousand  four  hundred: 
And  provided.  That  the  distribution  in  the  various  grades  shall  be  in  the  same 
proportion  as  that  authorized  at  the  time  when  the  President  avails  himself 
of  the  authority  herein  granted. — (39  Stat.,  612,  chap.  417.) 

See  note  to  section  1590,  Revised  Statutes,  as  to  the  number  and  grades  of  enlisted  men  in 
the  Marine  Corps. 

[1916,  Aug.  29.  Marine  Band;  organization  and  pay;  competition  with 
civilians  restricted.]  That  the  band  of  the  United  States  Marine  Corps  shall 
consist  of  one  leader,  whose  pay  and  allowances  shall  be  those  of  a  captain  in 
the  Marine  Corps;  one  second  leader,  whose  pay  shall  be  $150  per  month  and 
who  shall  have  the  allowances  of  a  sergeant  major;  ten  principal  musicians, 
whose  pay  shall  be  $125  per  month;  twenty-five  first-class  musicians,  whose 
pay  shall  be  $100  per  month;  twenty  second-class  musicians,  whose  pay  shall 
be  $85  per  month;  and  ten  third-class  musicians,  whose  pay  shall  be  $70  per 
month;  such  musicians  of  the  band  to  have  the  allowances  of  a  sergeant  and 
to  have  no  increase  in  the  rates  of  pay  on  account  of  length  of  service:  Pro- 
vided, That  a  member  of  the  said  band  shall  not,  as  an  individual,  furnish  music 
or  accept  an  engagement  to  furnish  music,  when  such  furnishing  of  music 
places  him  in  competition  with  any  civilian  musician  or  musicians,  and  shall 

1463 


Aug.  29,  1916.  Pt.  S.  STATUTES  AT  LARGE. 

not  accept  or  receive  remuneration  for  furnishing  music  except  under  special 
circumstances  when  authorized  by  the  President. — (39  Stat.,  612,  chap.  417.) 


(39  Stat.,  188),  for  other  restrictions  upon 
enlisted  men  competing  with  civilians. 


See  notes  to  sections  1596  and  1613,  Revised 
Statutes;  and  see  actvS  of  May  13,  1908  (35 
Stat.,  153),  and  June  3,  1916,  section  35 

[1916,  Aug.  29.  Sales  to  oflScers,  etc.,  of  subsistence  stores.]  Provisions, 
]VLvRiNE  Corps:  *  *  *  That  hereafter  so  much  of  this  appropriation  as 
may  be  necessary  may  be  applied  for  the  purchase,  for  sale  to  officers,  enlisted 
men,  and  civilian  employees,  of  such  articles  of  subsistence  stores  as  may  from 
time  to  time  be  designated  and  under  such  regulations  as  may  be  prescribed 
by  the  Secretary  of  the  Navy.— (39  Stat.,  613,  chap.  417.) 

See  act  of  March  4,  1913  (37  Stat.,  909),  and  note  thereto. 

[1916,  Aug.  29.  Marine  Corps  training  camps.]  The  Secretary  of  the 
Navy  is  hereby  authorized  to  establish  and  maintain  at  such  places  as  he  may 
designate,  and  prescribe  regulations  for  the  government  thereof,  Marine  Corps 
training  camps  for  the  instruction  of  citizens  of  the  United  States  who  make 
application  and  are  designated  for  such  training;  no  such  camps  to  be  in  exist- 
ence for  a  period  longer  than  six  weeks  in  each  fiscal  year,  except  in  time  of 
actual  or  threatened  war;  to  use  Marine  Corps  and  such  other  Government 
property  as  he  may  deem  necessary  for  the  military  training  of  such  citizens 
while  in  attendance  at  such  camps.  The  Quartermaster's  Department,  United 
States  Marine  Corps,  is  authorized  to  sell  such  articles  of  uniform  clothing  as 
may  be  prescribed  at  cost  price  to  the  volunteer  citizens  who  are  designated 
to  participate  in  these  instructions:  Provided,  That  these  citizens  shall  be 
required  to  furnish  at  their  own  expense  transportation  and  subsistence  to  and 
from  these  camps,  and  subsistence  while  undergoing  training  therein. — (39 
Stat.,  614,  chap.  417.) 

[1916,  Aug.  29.  Navy  yard  employees;  leaves  of  absence.]  That  each  and 
every  employee  of  the  navy  yards,  gun  factories,  naval  stations,  and  arsenals 
of  the  United  States  Government  is  hereby  granted  thirty  days'  leave  of  absence 
each  year,  without  forfeiture  of  pay  during  such  leave :  Provided  further,  That 
it  shall  be  lawful  to  allow  pro  rata  leave  only  to  those  serving  twelve  consecutive 
months  or  more :  And  provided  further.  That  in  all  cases  the  heads  of  divisions 
shall  have  discretion  as  to  the  time  when  the  leave  can  best  be  allowed:  And 
provided  further,  That  not  more  than  thirty  days'  leave  with  pay  shall  be  allowed 
any  such  employee  in  one  year:  Provided  further,  That  this  provision  shall  not 
be  construed  to  deprive  employees  of  any  sick  leave  or  legal  holidays  to  which 
they  may  now  be  entitled  under  existing  law. — (39  Stat.,  617-618,  chap.  417.) 
See  note  to  section  1545,  Revised  Statutes. 

[1916,    Aug.    29.  Government   employees   serving   in   National    Guard   and 

Medical  Reserve  Corps.]     That  all  officers  and  enlisted  men  of  the  National 

Guard  and  of  the  Medical  Reserve  Corps  of  the  Army  who  are  Government 

employees  and  who  respond  to  the  call  of  the  President  for  service  shall,  at  the 

expiration  of  the  military  service  to  which  they  are  called,  be  restored  to  the 

positions  occupied  by  them  at  the  time  of  the  call. — (39  Stat.,  624,  chap.  418.) 

See  note  to  section  416,  Revised  Statutes  under 
' '  Honorably  discharged  soldiers  or  sailors  " ; 
and  see  act  of  June  3,  1916,  section  80  (39 

1464 


Stat.,  203),  as  to  leaves  of  absence  allowed 
Government  employees  who  are  members 
of  the  National  Guard. 


PL  S.  STATUTES  AT  LARGE.  Aug.  29,  1916. 

[1916,  Aug.  29.  Sales  of  Army,  Navy,  and  Marine  Corps  subsistence  sup- 
plies.] That  hereafter  the  officers  and  enlisted  men  of  the  Navy  and  the 
Marine  Corps  shall  be  permitted  to  purchase  subsistence  suppUes  at  the  same 
price  as  is  charged  the  officers  and  the  enlisted  men  of  the  Army;  and  the 
officers  and  the  enlisted  men  of  the  Army  shall  be  permitted  to  purchase 
subsistence  supplies  from  the  Navy  and  Marine  Corps  at  the  same  price  as  is 
charged  the  officers  and  the  enlisted  men  of  the  Navy  and  Marine  Corps. — 
(39  Stat.,  6.30,  chap.  418.) 

[1916,  Aug.  29.  Transportation  of  troops,  etc.,  in  time  of  war.]  The 
President,  in  time  of  war,  is  empowered,  through  the  Secretary  of  War,  to  take 
possession  and  assume  control  of  any  system  or  systems  of  transportation,  or 
any  part  thereof,  and  to  utilize  the  same,  to  the  exclusion  as  far  as  may  be  neces- 
sary of  all  other  traffic  thereon,  for  the  transfer  or  transportation  of  troops,  war 
material  and  equipment,  or  for  such  other  purposes  connected  with  the  emer- 
gency as  may  be  needful  or  desirable. — -(39  Stat.,  645,  chap.  418.) 

See  act  of  February  4,  1887,  section  6  (24  Stat.,  380),  as  amended  by  act  of  August  29,  1916 
(39  Stat.,  604,  chap.  417). 

[1916,  Aug.  29.  Director  of  Civilian  Marksmanship.]  That  the  President 
be,  and  he  is  hereby,  authorized,  in  his  discretion,  to  appoint,  as  Director  of 
Civilian  Markmanship,  under  the  direction  of  the  Secretary  of  War,  an  officer 
of  the  Army  or  of  the  Marine  Corps. — 39  Stat.,  648,  chap.  418.) 

[1916,  Aug.  29,  sec.  2.  Council  of  National  Defense.]  That  a  Council  of 
National  Defense  is  hereby  established,  for  the  coordination  of  industries  and 
resources  for  the  national  security  and  welfare,  to  consist  of  the  Secretary  of 
War,  the  Secretary  of  the  Navy,  the  Secretary  of  the  Interior,  the  Secretary 
of  Agriculture,  the  Secretary  of  Commerce,  and  the  Secretary  of  Labor. 

That  the  Council  of  National  Defense  shall  nominate  to  the  President,  and 
the  President  shall  appoint,  an  advisory  commission,  consisting  of  not  more 
than  seven  persons,  each  of  whom  shall  have  special  knowledge  of  some  industry, 
public  utility,  or  the  development  of  some  natural  resource,  or  be  otherwise 
specially  qualified,  in  the  opinion  of  the  council,  for  the  performance  of  the 
duties  hereinafter  provided.  The  members  of  the  advisory  commission  shaU 
serve  without  compensation,  but  shall  be  allowed  actual  expenses  of  travel  and 
subsistence  when  attending  meetings  of  the  commission  or  engaged  in  investi- 
gations pertaining  to  its  activities.  The  advisory  commission  shall  hold  such 
meetings  as  shall  be  called  by  the  council  or  be  provided  by  the  rules  and  regu- 
lations adopted  by  the  council  for  the  conduct  of  its  work. — (39  Stat.,  649, 
chap.  418.) 

That  it  shall  be  the  duty  of  the  Council  of  National  Defense  to  supervise 
and  direct  investigations  and  make  recommendations  to  the  President  and  the 
heads  of  executive  departments  as  to  the  location  of  railroads  with  reference 
to  the  frontier  of  the  United  States  so  as  to  render  possible  expeditious  concen- 
tration of  troops  and  supplies  to  points  of  defense;  the  coordination  of  military, 
industrial,  and  commercial  purposes  in  the  location  of  extensive  highways  and 
branch  lines  of  railroad;  the  utilization  of  waterways;  the  mobilization  of 
military  and  naval  resources  for  defense;  the  increase  of  domestic  production 
of  articles  and  materials  essential  to  the  support  of  armies  and  of  the  people 

1465 


Sept.  7,  1916.  Pi.  .].  STATUTES  A  T  LARGE. 

during  the  interruption  of  foreign  commerce;  the  development  of  seagoing 
transportation;  data  as  to  amounts,  location,  method  and  means  of  production, 
and  availability  of  military  supplies;  the  giving  of  information  to  producers 
and  manufacturers  as  to  the  class  of  supplies  needed  by  the  military  and  other 
services  of  the  Government,  the  requirements  relating  thereto,  and  the  creation 
of  relations  which  will  render  possible  in  time  of  need  the  immediate  concentra- 
tion and  utilization  of  the  resources  of  the  Nation. — (39  Stat.,  649-650,  chap. 
418.) 

That  the  Council  of  National  Defense  shall  adopt  rules  and  regulations 
for  the  conduct  of  its  work,  which  rules  and  regulations  shall  be  subject  to  the 
approval  of  the  President,  and  shall  provide  for  the  work  of  the  advisory  com- 
mission to  the  end  that  the  special  knowledge  of  such  commission  may  be 
developed  by  suitable  investigation,  research,  and  inquiry  and  made  available 
in  conference  and  report  for  the  use  of  the  council ;  and  the  council  may  organize 
subordinate  bodies  for  its  assistance  in  special  investigations,  either  by  the 
employment  of  experts  or  by  the  creation  of  committees  of  specially  qualified 
persons  to  serve  without  compensation,  but  to  direct  the  investigations  of 
experts  so  employed. 

*  *  *  Reports  shall  be  submitted  by  all  subordinate  bodies  and  by  the 
advisory  commission  to  the  council,  and  from  time  to  time  the  council  shall 
report  to  the  President  or  to  the  heads  of  executive  departments  upon  special 
inquiries  or  subjects  appropriate  thereto,  and  an  annual  report  to  the  Congress 
shall  be  submitted  through  the  President,  including  as  full  a  statement  of  the 
activities  of  the  coimcil  and  the  agencies  subordinate  to  it  as  is  consistent  with 
the  public  interest,  including  an  itemized  accoimt  of  the  expenditures  made  by 
the  council  or  authorized  by  it,  in  as  full  detail  as  the  public  interest  will  permit: 
Provided,  however,  That  when  deemed  proper  the  President  may  authorize,  in 
amounts  stipulated  by  him,  mivouchered  expenditures  and  report  the  gross 
sums  so  authorized  not  itemized. — (39  Stat.,  650,  chap.  418.) 


of  the  Council  of  National  Defense,  but  that 
such  powers  and  duties  shall  remain  as  pre- 
scribed by  the  Act  creating  said  council, 
approved  August  twenty-ninth,  nineteen 
hundred  and  sixteen." 


By  act  of  June  15,  1917  (40  Stat.,  182),  which 
contained  appropriations  for  the  council 
of  National  Defense,  it  was  pro\'ided  "that 
in  the  expenditure  of  said  moneys  the  ex- 
istence of  a  state  of  war  shall  not  be  con- 
strued as  enlarging  the  powers  or  duties 

[1916,  Sept.  7.  United  States  Shipping  Board.]  Sec.  4.  *  *  *  xhe 
President,  upon  the  request  of  the  board,  may  authorize  the  detail  of  officers 
of  the  military,  naval,  or  other  services  of  the  United  States  for  such  duties 
as  the  board  may  deem  necessary  in  connection  with  its  business.  *  *  *  — 
(39  Stat.,  729,  chap.  451.) 

Sec.  5.  That  the  board,  with  the  approval  of  the  President,  is  authorized 
to  have  constructed  and  equipped  in  American  shipyards  and  navy  yards  or 
elsew^here,  giving  preference,  other  things  being  equal,  to  domestic  yards,  or  to 
purchase,  lease,  or  charter,  vessels  suitable,  as  far  as  the  commercial  require- 
ments of  the  marine  trade  of  the  United  States  may  permit,  for  use  as  naval 
auxiliaries  or  Army  transports,  or  for  other  naval  or  military  purposes,  and  to 
make  necessary  repairs  on  and  alterations  of  such  vessels.  *  *  *  ^ — (39 
Stat.,  730,  chap.  451.) 

1466 


Employees'  Compensation.    Ft.  3.  STATUTES  AT  LARGE.  Sept.  7,  1916. 


Section  5  was  expressly  repealed  by  act  of 
June  5,  1920  (41  Stat.,  988),  with  certain 
limitations  relating  to  contracts  previously 
entered  into,  construction  already  com- 
menced, etc. 


By  act  of  March  4,  1921  (41  Stat.,  1382-1383), 
it  was  provided  that  after  the  approval  of 
said  act,  ' '  no  contract  shall  be  entered  into 
or  work  undertaken  for  the  construction  of 
any  additional  vessels  for  the  United  States 
Shipping  Board  or  the  United  States  Ship- 
ping Board  Emergency  Fleet  Corporation." 

Sec.  6.  That  the  President  may  transfer  either  permanently  or  for  limited 
periods  to  the  board  such  vessels  belonging  to  the  War  or  Navy  Department  as 
are  suitable  for  commercial  uses  and  not  required  for  military  or  naval  use  in 
time  of  peace,  and  cause  to  be  transferred  to  the  board  vessels  owned  by  the 
Panama  Railroad  Company  and  not  required  in  its  business.  *  *  *. — (39 
Stat.,  730,  chap.  451.) 

Sec.  10.  That  the  President,  upon  giving  to  the  person  interested  such 
reasonable  notice  in  writing  as  in  his  judgment  the  circumstances  permit,  may 
take  possession,  absolutely  or  temporarily,  for  any  naval  or  military  purpose, 
of  any  vessel  purchased,  leased,  or  chartered  from  the  board :  Provided,  That  if, 
in  the  judgment  of  the  President,  an  emergency  exists  requiring  such  action  he 
may  take  possession  of  any  such  vessel  without  notice. 

Thereafter,  upon  ascertainment  by  agreement  or  otherwise,  the  United 
States  shall  pay  the  person  interested  the  fair  actual  value  based  upon  normal 
conditions  at  the  time  of  taking  of  the  interest  of  such  person  in  every  vessel 
taken  absolutely,  or  if  taken  for  a  limited  period,  the  fair  charter  value  under 
normal  conditions  for  such  period.  In  case  of  disagreement  as  to  such  fair 
value  it  shall  be  determined  by  appraisers,  one  to  be  appointed  by  the  board, 
one  by  the  person  interested,  and  a  third  by  the  two  so  appointed.  The  find- 
ing of  such  appraisers  shall  be  final  and  binding  upon  both  parties.  *  *  *. — 
(39  Stat.,  731,  chap.  451.) 

Sec.  12.  *  *  *  It  shall  examine  the  navigation  laws  of  the  United 
States  and  the  rules  and  regulations  thereunder,  and  make  such  recommenda- 
tions to  the  Congress  as  it  deems  proper  for  the  amendment,  improvement,  and 
revision  of  such  laws,  and  for  the  development  of  the  American  merchant 
marme.     *     *     *.— (39  Stat.,  732,  chap.  451.) 

[1916,  Sept.  7.  Employees,  compensation  for  injuries,  etc.]  That  the 
United  States  shall  pay  compensation  as  hereinafter  specified  for  the  dis- 
ability or  death  of  an  employee  resulting  from  a  personal  injury  sustained 
while  in  the  performance  of  his  duty,  but  no  compensation  shall  be  paid  if  the 
injury  or  death  is  caused  by  the  willful  misconduct  of  the  employee  or  by  the 
employee's  intention  to  bring  about  the  injury  or  death  of  himself  or  of  another, 
or  if  intoxication  of  the  injured  employee  is  the  proximate  cause  of  the  injury 
or  death.— (39  Stat.,  742-743,  chap.  458.) 

Sec.  2.  That  during  the  first  three  days  of  disability  the  employee  shall 
not  be  entitled  to  compensation  except  as  provided  in  section  nine.  No  com- 
pensation shall  at  any  time  be  paid  for  such  period.     *     *     * 

Sec.  7.  That  as  long  as  the  employee  is  in  receipt  of  compensation  under 
this  Act,  or,  if  he  has  been  paid  a  lump  sum  in  commutation  of  installment 
payments,  until  the  expiration  of  the  period  during  which  such  installment 
payments  would  have  continued,  he  shall  not  receive  from  the  United  States 
any  salary,  pay,  or  remuneration  whatsoever  except  in  return  for  services 

54641°— 22 93  1467 


Sept.  7,  1916.  Pi.  S.  STATUTES  AT  LARGE.    Employees'  Compensation. 

actually  performed,  and  except  pensions  for  service  in  the  Army  or  Navy  of  the 
United  States. 

Sec.  8.  That  if  at  the  time  the  disability  begins  the  employee  has  annual  or 
sick  leave  to  his  credit  he  may,  subject  to  the  approval  of  the  head  of  the 
department,  use  such  leave  until  it  is  exhausted,  in  which  case  his  compensa- 
tion shall  begin  on  the  fourth  day  of  disability  after  the  annual  or  sick  leave 
has  ceased. — (39  Stat.,  743,  chap.  458.) 

Sec.  9.  That  immediately  after  an  injury  sustained  by  an  employee  while 
in  the  performance  of  his  duty,  whether  or  not  disability  has  arisen,  and  for  a 
reasonable  time  thereafter,  the  United  States  shall  furnish  to  such  employee 
reasonable  medical,  surgical,  and  hospital  services  and  supplies  unless  he  refuses 
to  accept  them.  Such  services  and  supplies  shall  be  furnished  by  United  States 
medical  officers  and  hospitals,  but  where  this  is  not  practicable  shall  be  furnished 
by  private  physicians  and  hospitals  designated  or  approved  by  the  commis- 
sion and  paid  for  from  the  employees'  compensation  fund.  If  necessary  for 
the  secm-ing  of  proper  medical,  surgical,  and  hospital  treatment,  the  emploj^^ee, 
in  the  discretion  of  the  commission,  may  be  furnished  transportation  at  the 
expense  of  the  employees'  compensation  fund.  *  *  *. — (39  Stat.,  743- 
744,  chap.  458.) 

Sec.  15.  That  every  employee  mjm-ed  in  the  performance  of  his  duty,  or 
some  one  on  his  behalf,  shall,  within  forty-eight  hours  after  the  injmy,  give 
written  notice  thereof  to  the  immediate  superior  of  the  employee.  Such 
notice  shall  be  given  by  delivering  it  personally  or  by  depositing  it  properly 
stamped  and  addressed  in  the  mail. — (39  Stat.,  746,  chap.  458.) 

Sec.  16.  That  the  notice  shall  state  the  name  and  address  of  the  employee, 
the  year,  month,  day,  and  hour  when  and  the  particular  locality  where  the 
injmy  occurred,  and  the  cause  and  nature  of  the  injury,  and  shall  be  signed  by 
and  contain  the  address  of  the  person  giving  the  notice. 

Sec.  17.  That  unless  notice  is  given  within  the  time  specified  or  unless 
the  immediate  superior  has  actual  knowledge  of  the  injury,  no  compensation 
shall  be  allowed,  but  for  any  reasonable  cause  shown,  the  commission  may 
allow  compensation  if  the  notice  is  filed  within  one  year  after  the  injury. 

Sec.  18.  That  no  compensation  under  this  Act  shall  be  allowed  to  any 
person,  except  as  provided  in  section  thirty-eight,  unless  he  or  some  one  on 
his  behalf  shall,  \vithin  the  time  specified  iii  section  twenty,  make  a  written 
claim  therefor.  Such  claim  shall  be  made  by  delivermg  it  at  the  office  of  the 
commission  or  to  any  commissioner  or  to  any  person  whom  the  commission 
may  by  regulation  designate,  or  by  depositing  it  in  the  mail  properly  stamped 
and  addressed  to  the  commission  or  to  any  person  whom  the  commission  may 
by  regulation  designate. 

Sec.  19.  That  every  claim  shall  be  made  on  forms  to  be  furnished  by  the 
commission  and  shall  contam  all  the  information  required  by  the  commission. 
Each  claim  shall  be  sworn  to  by  the  person  entitled  to  compensation  or  by  the 
person  acting  on  his  behalf,  and,  except  in  case  of  death,  shall  be  accompanied 
by  a  certificate  of  the  employee's  physician  stating  the  nature  of  the  injury 
and  the  nature  and  probable  extent  of  the  disability.  For  any  reasonable 
cause  shown  the  commission  may  waive  the  provisions  of  this  section. — (39 
Stat.,  746,  chap.  458.) 

1468 


Employees'  Compensation.    Pt.  3.  STATUTES  AT  LARGE.  Sept.  7,  1916. 

Sec.  20.  That  all  original  claims  for  compensation  for  disability  shall  be 
made  within  sixty  days  after  the  injury.  All  original  claims  for  compensation 
for  death  shall  be  made  within  one  year  after  the  death.  For  any  reasonable 
cause  shown  the  commission  may  allow  original  claims  for  compensation  for 
disability  to  be  made  at  any  time  within  one  year.     *     *     * 

Sec.  24.  That  immediately  after  an  injury  to  an  employee  resulting  in  his 
death  or  in  his  probable  disability,  his  immediate  superior  shall  make  a  report 
to  the  commission  containing  such  information  as  the  commission  may  require, 
and  shall  thereafter  make  such  supplementary  reports  as  the  commission  may 
require     *     *     *.— (39  Stat.,  747,  chap.  458.) 

Sec.  28.  That  a  commission  is  hereby  created,  to  be  known  as  the  United 
States  Employees'  Compensation  Commission,  and  to  be  composed  of  three 
commissioners  appointed  by  the  President,  by  and  with  the  advice  and  consent 
of  the  Senate,  one  of  whom  shall  be  designated  by  the  President  as  chairman. 
*  *  *  The  principal  office  of  said  commission  shall  be  in  Washington, 
District  of  Columbia,  but  the  said  commission  is  authorized  to  perform  its 
work  at  any  place  deemed  necessary  by  said  commission,  subject  to  the  restric- 
tions and  limitations  of  this  Act.     *     *     *. — (39  Stat.,  748,  chap.  458.) 

Sec.  32.  That  the  commission  is  authorized  to  make  necessary  rules  and 
regulations  for  the  enforcement  of  this  Act,  and  shall  decide  all  questions 
arising  under  this  Act.     *     *     * 

Sec.  36.  The  commission,  upon  consideration  of  the  claim  presented  by 
the  beneficiary,  and  the  report  furnished  by  the  immediate  superior  and  the 
completion  of  such  investigation  as  it  may  deem  necessary,  shall  determine 
and  make  a  finding  of  facts  thereon  andmake  an  award  for  or  against  payment 
of  the  compensation  provided  for  in  this  Act.  Compensation  when  awarded 
shall  be  paid  from  the  employees'  compensation  fund.  *  *  *. — (39  Stat., 
749,  chap.  458.) 


See  act  of  May  22,  1920,  section  5  (41  Stat.,  617), 
as  to  disability  retirement  of  civil  em- 
ployees; and  see  act  of  October  6,  1917, 


section  312  (40  Stat.,  408),  as  to  members 
of  the  Navy  Nurse  Corps  (female). 


[1916,  Sept.  8,  sec.  4.  Special  estimates  must  conform  to  law.]  That  the 
Secretary  of  the  Treasury  shall  not  hereafter  transmit  special  or  additional 
estimates  of  appropriations  to  Congress  unless  they  shall  conform  to  the 
requirements  of  section  four  of  the  Act  approved  June  twenty-second,  nineteen 
hundred  and  six  (Thirty-fourth  Statutes,  page  four  hundred  and  forty-eight) . — 
(39  Stat.,  830,  chap.  464.) 

See  act  of  June  22,  1906,  Section  4  (34  Stat.,  448^49),  and  references  thereunder. 

[1917,  Feb.  14.  Threats  against  the  President.]  That  any  person  who 
knowingly  and  wilKully  deposits  or  causes  to  be  deposited  for  conveyance  in 
the  mail  or  for  delivery  from  any  post  office  or  by  any  letter  carrier  any  letter, 
paper,  writmg,  print,  missive,  or  document  containing  any  threat  to  take  the 
life  of  or  to  inflict  bodily  harm  upon  the  President  of  the  United  States,  or 
who  knowingly  and  willfully  otherwise  makes  any  such  threat  against  the 
President,  shall  upon  conviction  be  fiuaed  not  exceeding  SI, 000  or  imprisoned 
not  exceeding  five  years,  or  both. — (39  Stat.,  919,  chap.  64.) 

[1917,  Mar.  3.  Bureau  of  Eflaciency;  assistance  of  departments.]  Officers 
and  employees  of  the  executive  departments  and  other  estabhshments  shall 

1469 


Mar.  3,  1917.  Pt.  S.  STATUTES  AT  LARGE.  Virgin  Islands. 

furnish  authorized  representatives  of  the  Bureau  of  Efficiency  with  all  infor- 
mation that  the  bureau  may  require  for  the  performance  of  the  duties  imposed 
on  it  by  law,  and  shall  give  such  representatives  access  to  all  records  and  papers 
that  may  be  needed  for  that  purpose. — (39  Stat.,  1081,  chap,  163.) 

[1917,  Mar.  3.  Payments  to  Government  employees  by  private  parties 
restricted.]  That  on  and  after  July  first,  nineteen  hundred  and  nineteen,  no 
Goveriuuent  ofTicial  or  employee  shall  receive  any  salary  in  connection  with 
his  services  as  such  an  ofhcial  or  employee  from  any  source  other  than  the 
Government  of  the  United  States,  except  as  may  be  contributed  out  of  the 
treasury  of  any  State,  county,  or  municipality,  and  no  person,  association,  or 
corporation  shall  make  any  contribution  to,  or  in  any  way  supplement  the  salary 
of,  any  Government  oflTicial  or  employee  for  the  services  performed  by  him  for 
the  Government  of  the  United  States.  Any  person  violating  any  of  the  terms 
of  this  proviso  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  be  punished  by  a  fine  of  not  less  than  $1,000  or  imprisonment  for 
not  less  than  six  months,  or  by  both  such  fine  and  imprisonment  as  the  court 
may  determine. — (39  Stat.,  1106,  chap.  163.) 

See  sections  1763-1765,  Revised  Statutes,  as  to  double  salaries  and  extra  allowances  to  Gov- 
ernment employees. 

[1917,  Mar.  3.  Virgin  Islands;  temporary  government.]  That,  except  as 
hereinafter  provided,  all  military,  civil,  and  judicial  powers  necessary  to  govern 
the  West  Indian  Islands  acquired  from  Denmark  shall  be  vested  in  a  governor 
and  in.  such  person  or  persons  as  the  President  may  appoint,  and  shall  be  exer- 
cised in  such  manner  as  the  President  shall  direct  until  Congress  shall  provide 
for  the  government  of  said  islands:  Provided,  That  the  President  may  assign 
an  officer  of  the  Army  or  Navy  to  serve  as  such  governor  and  perform  the  duties 
appertaining  to  said  office:  And  'provided  further ,  That  the  governor  of  the  said 
islands  shall  be  appointed  by  and  with  the  advice  and  consent  of  the  Senate: 
And  provided  further ,  That  the  compensation  of  aU  persons  appointed  under  this 
Act  shall  be  fixed  by  the  President.— (39  Stat.,  1132,  chap.  171.) 

Sec.  2.  That  until  Congress  shall  otherwise  provide,  in  so  far  as  compatible 
with  the  changed  sovereignty  and  not  in  conflict  with  the  provisions  of  this 
Act,  the  laws  regulating  elections  and  the  electoral  franchise  as  set  forth  in  the 
code  of  laws  published  at  Amahenborg  the  sixth  day  of  April,  nineteen  hundred 
and  six,  and  the  other  local  laws,  in  force  and  effect  in  said  islands  on  the  seven- 
teenth day  of  January,  nineteen  hundred  and  seventeen,  shall  remain  in  force 
and  effect  in  said  islands,  and  the  same  shall  be  administered  by  the  civil  offi- 
cials and  through  the  local  judicial  tribunals  established  in  said  islands,  respec- 
tively; and  the  orders,  judgments,  and  decrees  of  said  judicial  tribunals  shall  be 
duly  enforced.  With  the  approval  of  the  President,  or  under  such  rules  and 
regulations  as  the  President  may  prescribe,  any  of  said  laws  may  be  repealed, 
altered,  or  amended  by  the  colonial  council  having  jurisdiction.  The  jurisdic- 
tion of  the  judicial  tribunals  of  said  islands  shall  extend  to  all  judicial  proceed- 
ings and  controversies  in  said  islands  to  which  the  United  States  or  any  citizen 
thereof  may  be  a  party.  In  all  cases  arising  in  the  said  West  Indian  Islands 
and  now  reviewable  by  the  courts  of  Denmark,  writs  of  error  and  appeals  shall 
be  to  the  Circuit  Court  of  Appeals  for  the  Thhd  Circuit,  and,  except  as  provided 

1470 


Virgin  Islands.  Ft.  3.  STATUTES  AT  LARGE.  Mar.  3,  1917. 

in  sections  two  hundred  and  thirty-nine  and  two  hundred  and  forty  of  the  Judi- 
cial Code,  the  judgments,  orders,  and  decrees  of  such  court  shall  be  final  in  all 
such  cases.— (39  Stat.,  1132-1133,  chap.  171.) 

Sec.  3.  That  on  and  after  the  passage  of  this  Act  there  shall  be  levied, 
collected,  and  paid  upon  all  articles  coming  into  the  United  States  or  its  pos- 
sessions, from  the  West  Indian  Islands  ceded  to  the  United  States  by  Denmark, 
the  rates  of  duty  and  internal-revenue  taxes  which  are  required  to  be  levied, 
collected,  and  paid  upon  like  articles  imported  from  foreign  countries:  Provided, 
That  all  articles,  the  growth  or  product  of,  or  manufactured  in  such  islands 
from  materials  the  growth  or  product  of  such  islands  or  of  the  United  States, 
or  of  both,  or  which  do  not  contain  foreign  materials  to  the  value  of  more  than 
twenty  per  centum  of  their  total  value,  upon  which  no  drawback  of  customs 
duties  has  been  allowed  therein,  coming  into  the  United  States  from  such 
islands  shall  hereafter  be  admitted  free  of  duty. 

Sec.  4.  That  until  Congress  shall  otherwise  provide  aU  laws  now  imposing 
taxes  in  the  said  West  Indian  Islands,  including  the  customs  laws  and  regula- 
tions, shall,  in  so  far  as  compatible  with  the  changed  sovereignty  and  not  other- 
wise herein  provided,  continue  in  force  and  effect,  except  that  articles  the 
growth,  product,  or  manufacture  of  the  United  States  shall  be  admitted  there 
free  of  duty:  Provided,  That  upon  exportation  of  sugar  to  any  foreign  country, 
or  the  shipment  thereof  to  the  United  States  or  any  of  its  possessions,  there 
shall  be  levied,  collected,  and  paid  thereon  an  export  duty  of  $8  per  ton  of  two 
thousand  pounds  irrespective  of  polariscope  test,  in  lieu  of  any  export  tax  now 
required  by  law. 

Sec.  5.  That  the  duties  and  taxes  collected  in  pursuance  of  this  Act  shall 
not  be  covered  into  the  general  fund  of  the  Treasury  of  the  United  States,  but 
shall  be  used  and  expended  for  the  government  and  benefit  of  said  islands 
under  such  rules  and  regulations  as  the  President  may  prescribe. 

Sec.  6.  That  for  the  purpose  of  taking  over  and  occupying  said  islands  and 
of  carrying  this  Act  into  effect  and  to  meet  any  deficit  in  the  revenues  of  the 
said  islands  resulting  from  the  provisions  of  this  Act  the  sum  of  $100,000  is 
hereby  appropriated,  to  be  paid  out  of  any  moneys  in  the  Treasury  not  other- 
wise appropriated,  and  to  be  applied  under  the  direction  of  the  President  of 
the  United  States. 

Sec.  7.  That  the  sum  of  S25,000,000  is  hereby  appropriated,  out  of  any 
moneys  in  the  Treasury  not  otherwise  appropriated,  to  be  paid  in  the  city  of 
Washington  to  the  diplomatic  representative  or  other  agent  of  His  Majesty  the 
King  of  Denmark  duly  authorized  to  receive  said  money,  in  full  consideration 
of  the  cession  of  the  Danish  West  Indian  Islands  to  the  United  States  made  by 
the  convention  between  the  United  States  of  America  and  His  Majesty  the  King 
of  Denmark  entered  into  August  fourth,  nineteen  hundred  and  sixteen,  and 
ratified  by  the  Senate  of  the  United  States  on  the  seventh  day  of  September, 
nineteen  hundred  and  sixteen. — (39  Stat.,  1133,  chap.  171.) 

Sec.  8.  That  this  Act,  with  the  exception  of  section  seven,  shall  be  in 
force  and  effect  and  become  operative  immediately  upon  the  payment  by  the 
United  States  of  said  sum  of  $25,000,000.  The  fact  and  date  of  such  payment 
shall  thereupon  be  made  public  by  a  proclamation  issued  by  the  President  and 
published  in  the  said  Danish  West  Indian  Islands  and  in  the  United  States. 

1471 


Mar.  4,  1917. 


PL  S.  STATUTES  AT  LARGE. 


Section  seven  shall  become  immediately  effective  and  the  appropriation  thereby 
provided  for  shall  be  immediately  available, — (39  Stat.,  1133-1134,  chap.  171.) 


See  note  to  section  I860,  Revised  Statutes^  as 

to  status  of  Virp^in  Islands,  and  appoint- 

mont  of  naval  olliccr  as  jud.2:e  therein; 

Citizenship   in    Virgin   Islands. — Certain 

Danish  citizens  residing  in  the  Virgin  Islands 

were  to  be  held  "to  have  accepted  citizensliip 


in  the  United  States,"  and  provision  was  made 
for  the  naturalization  of  others,  by  convention 
between  the  United  States  and  Denmark,  pro- 
claimed January  2.5,  1917  (39  Stat.,  1706,  1721). 
(See  file  26252-143:3,  July  14,  1919.) 


[1917,  Mar.  4,  Naval  examining  and  retiring  boards  on  foreign  stations.] 
That  hereafter  the  Secretary  of  the  Navy  may  authorize  the  senior  officer 
present,  or  other  commanding  officer,  on  a  foreign  station  to  order  boards  of 
medical  examiners,  examining  boards,  and  retiring  boards  for  the  examination 
of  such  candidates  for  appointment,  promotion,  and  retirement  in  the  Navy  and 
Marine  Corps  as  may  be  serving  in  such  officer's  command  and  may  be  directed 
to  appear  before  any  such  board. — (39  Stat.,  1171,  chap.  180.) 


This  paragraph  modifies  sections  1370,  1379, 
1448,  1493,  1496,  1599,  and  1622,  Revised 
Statutes,  and  subsequent  laws  relating  to 
appointments  and  promotions  in  the  Na^^y. 
The  words  "foreign  station"  in  this  para- 
graph are  not  limited  to  waters,  ports,  and 


stations  in  foreign  countries.  Commanding 
officers  of  naval  forces  outside  of  the  continental 
limits  of  the  United  States,  including  the  com- 
mander in  chief  of  the  Pacific  Fleet,-  may  law- 
fully be  empowered  to  order  the  boards  men- 
tioned.    (File  26521-186:30,  Oct.  8,  1920.) 


1915,  and  August  29,  1916,  but  without  the 
word  "hereafter"  which  was  embodied  in 
this  paragraph. 


[1917,  Mar.  4.  Naval  Home  sales,  etc.,  credited  to  naval  pension  fund.] 
That  all  moneys  derived  from  the  sale  of  material  at  the  Naval  Home,  which 
was  originally  purchased  from  moneys  appropriated  from  the  income  from  the 
naval  pension  fund,  and  all  moneys  derived  from  the  rental  of  Naval  Home 
property,  shall  hereafter  be  turned  into  the  naval  pension  fund. — (39  Stat.,  1175, 
chap.  180.) 

See  sections  4750  and  4810,  Revised  Statutes, 

and  notes  thereto. 
Similar  pro\dsion8  were  contained  in  naval 

appropriation  acts  of  June  30, 1914,  March  3, 

[1917,  Mar.  4.  Shore  pay,  warrant  officers.]  Hereafter  the  pay  of  warrant 
officers  while  on  shore  duty  during  the  fourth  three  years'  service  shall  be 
$1,750  per  annum.— (39  Stat.,  1181,  chap.  180.) 

See  note  to  section  1556,  Revised  Statutes,  as  to  pay  of  warrant  officers. 

[1917,  Mar.  4.  Advances  of  pay  to  naval  officers.]  Hereafter  advances  of 
pay  not  to  exceed  three  months'  pay  in  any  one  case  may  be  made  to  officers 
ordered  to  and  from  sea  duty  and  to  and  from  shore  duty  beyond  the  seas, 
under  such  regulations  as  the  Secretary  of  the  Navy  may  prescribe. — (39  Stat., 
1181-1 182,chap.  180.) 

See  section  1563,  Revised  Statutes,  and  note  thereto. 

[1917,  Mar.  4.  Appointment  of  midshipmen  from  enlisted  men.]  Hereafter, 
in  addition  to  the  appointment  of  midshipmen  to  the  United  States  Naval 
Academy,  as  now  prescribed  by  law,  the  Secretary  of  the  Navy  is  allowed  one 
hundred  appointments  annually,  instead  of  twenty-five  as  now  prescribed  by 
law,  to  be  appointed  from  the  enlisted  men  of  the  Navy  who  are  citizens  of 
the  United  States,  and  not  more  than  twenty  years  of  age  on  the  date  of  en- 
trance to  the  Naval  Academy,  and  who  shall  have  served  not  less  than  one  year 
as  enlisted  men  on  the  date  of  entrance:  Provided, Thsbt  such  appointments 
shall  be  made  in  the  order  of  merit  from  candidates  who  have,  in  competition 

1472 


PL  3.  STATUTES  AT  LARGE.  Mar.  4,  1917. 

with  each  other,  passed  the  mental  examination  now  or  hereafter  required  by 
law  for  entrance  to  the  Naval  Academy,  and  who  passed  the  physical  examina- 
tion before  entrance  under  existing  laws. — (39  Stat.,  1182,  chap.  180.) 


The  act  of  December  20,  1917  (40  Stat.,  430), 
as  amended  and  reenacted  by  act  of  July 
11,  1919  (41  Stat.,  140),  authorized  the 
appointment  of  midshipmen  from  con- 
gressional districts,   etc.,   "and  one  hun- 


dred   appointed    annually    from    enlisted 
men  of  the   Navy,   and  members  of  the 
Naval  Reserve  Force  on  active  duty,  as 
now  authorized  by  law.  " 
See  note  to  section  1513,  Revised  Statutes. 


[1917,  Mar.  4.  Examinations  of  staff  officers  for  advancement ;  dental  officers 
credited  with  prior  service.]  Hereafter  all  laws  relating  to  the  examination  of 
officers  of  the  Navy  for  promotion  shall  be  construed  to  apply  to  the  regular 
advancement  of  staff  officers  to  higher  ranks  on  the  active  list,  the  same  as 
though  such  advancements  in  rank  were  promotions  to  higher  grades :  Provided, 
That  nothing  in  this  paragraph  shall  be  construed  as  in  any  way  affecting  the 
origmal  appointments  of  officers  to  the  Dental  Corps  as  provided  in  the  Act 
approved  August  twenty-ninth,  nineteen  hundred  and  sixteen,  making  appro- 
priations for  the  naval  service  for  the  fiscal  year  ending  June  thirtieth,  nineteen 
hundred  and  seventeen,  and  for  other  purposes,  and  the  time  served  by  dental 
surgeons  as  acting  or  acting  assistant  dental  surgeons  shall  be  reckoned  in 
computing  the  increased  service  pay  and  service  for  promotion  of  such  as  are 
commissioned  under  said  Act. — (39  Stat.,  1182,  chap.  180.) 


The  first  part  of  this  paragraph  was  repeated, 
with  additions,  by  act  of  May  22,  1917,  sec- 
tion 20  (40  Stat.,  89-90). 

As  to  promotion  of  dental  officers,  see  act  of 


August  29,  1916  (39  Stat.,  573-574),  as 
amended  and  reenacted  by  act  of  July  1, 
1918  (40  Stat.,  708-710). 


[1917,  Mar.  4.  Forging,  etc.,  discharge  certificates.]  Whoever  shall  forge, 
counterfeit,  or  falsely  alter  any  certificate  of  discharge  from  the  military  or 
naval  service  of  the  United  States,  or  shall  in  any  manner  aid  or  assist  in  forg- 
ing, counterfeiting,  or  falsely  altering  any  such  certificate,  or  shall  use,  unlaw- 
fully have  in  his  possession,  exhibit,  or  cause  to  be  used  or  exhibited,  any  such 
forged,  counterfeited,  or  falsely  altered  certificate,  knowing  the  same  to  be 
forged,  counterfeited,  or  falsely  altered,  shall  be  fined  not  more  than  $1,000  or 
imprisoned  not  more  than  one  year,  or  both,  in  the  discretion  of  the  court. — (39 
Stat.,  1182,  chap.  180.) 

See  sections  1426-1427,  Re\T.sed  Statutes,  and  notes  thereto;  and  see  Criminal  Code,  Act 
of  March  4,  1909,  section  28  (35  Stat.,  1094). 

[1917,  Mar.  4.  Keserve  material,  Navy.]  For  procuring  apparatus  and 
materials  (other  than  ordnance  materials  and  medical  stores) ,  as  a  war  reserve 
necessary  to  be  carried  in  the  supply  departments  for  the  purpose  of  fitting 
out  vessels  of  the  fleet  and  merchant  auxiliaries  in  time  of  war  or  when,  m  the 
opinion  of  the  President,  a  national  emergency  exists,  to  be  immediately  available 
and  to  continue  available  until  expended,  $3,000,000:  Provided,  That,  to  pre- 
vent deterioration  such  materials  shall  be  used  as  required  in  time  of  peace,  and 
when  so  used  reimbursement  shall  be  made  to  this  appropriation  from  current 
naval  appropriations  in  order  that  additional  stocks  may  be  procured. — (39 
Stat.,  1183,  chap.  180.) 

Similar  provision  was  contained  in  act  of  June       See  section  3718,  Revised  Statutes,  and  note 


15,  1917  (40  Stat.,  211). 


thereto. 


1473 


Mar.  4.  1917.  Pt.  3.  STATUTES  AT  LARGE. 

[1917,  Mar.  4.  Rank  of  assistant  civil  engineers.]  Officers  of  the  Corps  of 
Civil  Eu«;iiicors  hereafter  a])p()iiited  shall,  from  the  date  of  their  original  appoint- 
ment, take  rank  and  precedence  with  Lieutenants  (junior  grade). — (39  Stat.^ 
1184,  chap.  180.) 

See  note  to  section  1478,  Revised  Statutes. 

[1917,  Mar.  4.  Navy  mail  clerks  on  shore.]  That  the  provisions  of  the  Act 
of  IVIay  twenty-seventh,  nineteen  hundred  and  eight  (Thirty-fifth  Statutes, 
pages  four  hundred  and  seventeen  and  four  hundred  and  eighteen) ,  as  amended 
by  the  Act  of  August  twenty-fourth,  nineteen  hundred  and  twelve  (Thirty- 
seventh  Statutes,  page  five  hundred  and  sixty) ,  are  hereby  extended  to  author- 
ize the  designation  of  enlisted  men  of  the  Navy  or  Marine  Corps  as  Navy  mail 
clerks  and  assistant  Navy  mail  clerks  with  expeditionary  forces  on  shore. — ■ 
(39  Stat.,  1188,  chap.  180.) 

See  act  of  May  27,  1908  (35  Stat..  417^18),  and  amendments  noted  thereunder. 

[1917,  Mar.  4.  Warrant  officers,  Marine  Corps;  foreign  shore  service  pay.] 
That  marine  gunners  and  quartermaster  clerks  of  the  IMarine  Corps  assigned 
to  foreign  shore  service  shall  hereafter  be  entitled  to  the  same  increased  com- 
pensation and  under  the  same  conditions  as  is  now  or  hereafter  allowed  by  law 
to  commissioned  officers  of  the  IVIarine  Corps. — (39  Stat.,  1188,  chap.  180.) 

See  note  to  section  1612,  Revised  Statutes,  as  to  pay  of  the  Marine  Corps;  and  see  act  of 
August  29,  1916  (39  Stat.,  611). 

[1917,  Mar.  4.  Exchange  of  sewing  machines,  etc.]     That  hereafter  worn-out 

sewing   machines,  machinery,  rubber    tires,   and    band   instruments   may  be 

exchanged  in  part  payment  for  the  purchase  of  like  articles. — (39  Stat.,  1189, 

chap.  180.) 

This  was  a  proviso  following  appropriation  for  "  Clothing,  Marine  Corps. " 
See  note  to  section  418,  Revised  Statutes. 

[1917,  Mar.  4.  Pay  of  enlisted  men  on  clerical  duty,  marine  headquarters.] 
That  hereafter  no  part  of  the  pay  and  allowances  authorized  for  enlisted  men 
detailed  as  clerks  and  messengers  in  the  office  of  the  IVIajor  General  Command- 
ant and  the  several  staff  offices  shall  be  forfeited  when  granted  furlough  for 
not  exceeding  thirty  days  in  each  calendar  year. — (39  Stat.,  1191,  chap.  180.) 


By  section   1612,   Revised   Statutes,   enlisted 

men  of  the  Marine  Corps  are  entitled  to 

the  same  pay  as  enlisted  men  of  the  A  rmy ; 

by  act  of  June  4,  1920,  section  4  (41  Stat., 

761),  amending  act  of  June  3,  1916,  section  4 


(39  Stat.,  167),  it  was  provided,  with  refer- 
ence to  the  Army,  that  "all  laws  and  parts 
of  laws  providing  for  extra  duty  for  enlisted 
men  are  repealed,  to  take  effect  July  1, 
1920." 


[1917,  Mar.  4.  Eight  hour  law  suspended  in  national  emergency.]  That  in 
case  of  national  emergency  the  President  is  authorized  to  suspend  provisions 
of  law  prohibiting  more  than  eight  hours  labor  in  any  one  day  of  persons  en- 
gaged upon  work  covered  by  contracts  with  the  United  States :  Provided  further, 
That  the  wages  of  persons  employed  upon  such  contracts  shall  be  computed  on 
a  basic  day  rate  of  eight  hours  work,  with  overtime  rates  to  be  paid  for  at  not 
less  than  time  and  one-half  for  all  hours  work  in  excess  of  eight  hours. —  (39 
Stat.,  1192,  chap.  180.) 


See  act  of  August  1,  1892  (27  Stat.,  340),  as 
amended  and  reenacted  by  act  of  March  3, 
1913   (37   Stat.,   726-727);"  and  see  act  of 


June  19,  1912  (37  Stat.,  137-138),  and  sec- 
tion 3738,  Revised  Statutes. 


1474 


Ft.  3.  STATUTES  AT  LARGE.  Mar.  4,  1917. 

[1917,  Mar.  4.  Procurement  of  ships  and  material  during  war;  changes 
in  contracts;  commandeering  factories,  etc.]  (a)  That  the  word  ''person"  as 
used  in  paragraphs  (b),  (c),  next  hereafter  shall  include  any  individual,  trustee, 
firm,  association,  company,  or  corporation.  The  word  "ship"  shall  include 
any  boat,  vessel,  submarine,  or  any  form  of  aircraft,  and  the  parts  thereof. 
The  words  "war  material"  shall  include  arms, -armament,  ammunition,  stores, 
supplies,  and  equipment  for  ships  and  airplanes,  and  everything  required  for  or 
in  connection  with  the  production  thereof.  The  word  "factory"  shall  include 
any  factory,  workshop,  engine  w^orks,  building  used  for  manufacture,  assembling, 
construction,  or  any  process,  and  any  shipyard  or  dockyard.  The  words 
"United  States"  shall  include  the  Canal  Zone  and  all  territory  and  w'aters, 
continental  and  insular,  subject  to  the  jurisdiction  of  the  United  States. —  (39 
Stat.,  1192-1193,  chap.  180.) 

(b)  That  in  time  of  war,  or  of  national  emergency  arising  prior  to  March 
first,  nineteen  hundred  and  eighteen,  to  be  determined  by  the  President  by 
proclamation,  the  President  is  hereby  authorized  and  empowered,  in  addition 
to  all  other  existing  provisions  of  law^: 

First.  Within  the  limits  of  the  amounts  appropriated  therefor,  to  place  an 
order  with  any  person  for  such  ships  or  w^ar  material  as  the  necessities  of  the 
Government,  to  be  determined  by  the  President,  may  require  and  which  are 
of  the  nature,  kind,  and  quantity  usually  produced  or  capable  of  being  produced 
by  such  person.  Compliance  with  all  such  orders  shall  be  obligatory  on  any 
person  to  wiiom  such  order  is  given,  and  such  order  shall  take  precedence  over 
all  other  orders  and  contracts  theretofore  placed  wnth  such  person.  If  any 
person  owning,  leasing,  or  operating  any  factory  equipped  for  the  building  or 
production  of  ships  or  war  material  for  the  Navy  shall  refuse  or  fail  to  give  to 
the  United  States  such  preference  in  the  execution  of  such  an  order,  or  shall 
refuse  to  build,  supply,  furnish,  or  manufacture  the  kind,  quantity,  or  quality  of 
ships  or  war  material  so  ordered  at  such  reasonable  price  as  shall  be  deter- 
mined by  the  President,  the  President  may  take  immediate  possession  of  any 
factory  of  such  person,  or  of  any  part  thereof  without  taking  possession  of  the 
entire  factory,  and  may  use  the  same  at  such  times  and  in  such  manner  as  he 
may  consider  necessary  or  expedient. 

Second.  Within  the  limit  of  the  amounts  appropriated  therefor,  to  modify 
or  cancel  any  existing  contract  for  the  building,  production,  or  purchase  of 
ships  or  war  material;  and  if  any  contractor  shall  refuse  or  fail  to  comply  with 
the  contract  as  so  modified  the  President  may  take  immediate  possession  of  any 
factory  of  such  contractor,  or  any  part  thereof  without  taking  possession  of  the 
entire  factory,  and  may  use  the  same  at  such  times  and  in  such  manner  as  he 
may  consider  necessary  or  expedient. 

Third.  To  require  the  o\\mer  or  occupier  of  any  factory  in  w^hich  ships  or 
war  material  are  built  or  produced  to  place  at  the  disposal  of  the  United  vStates 
the  whole  or  any  part  of  the  output  of  such  factory,  and,  within  the  limit  of  the 
amounts  appropriated  therefor,  to  deliver  such  output  or  parts  thereof  in  such 
quantities  and  at  such  times  as  may  be  specified  in  the  order  at  such  reasonable 
price  as  shall  be  determined  by  the  President. 


1475 


May  12,  1917.  Pt.  3.  STATUTES  AT  LARGE. 

Fourth.  To  requisition  and  take  over  for  use  or  operation  by  the  Govern- 
ment any  factory,  or  any  jnirt  thereof  without  taking  possession  of  the  entire 
factory,  whether  the  United  States  has  or  has  not  any  contract  or  agreement 
with  the  owner  or  occupier  of  such  factory. 

That  all  authority  granted  to  the  President  in  this  paragraph,  to  be  exer- 
cised in  time  of  national  emergency,  shall  cease  on  March  first,  nineteen  hundred 
and  eighteen. 

(d)  That  whenever  the  United  States  shall  cancel  or  modify  any  contract, 
make  use  of,  assume,  occupy,  requisition,  or  take  over  any  factory  or  part  thereof, 
or  any  ships  or  war  material,  in  accordance  ^^^th  the  provisions  of  paragraph  (b), 
it  shall  make  just  compensation  therefor,  to  be  determined  by  the  President, 
and  if  the  amount  thereof  so  determined  by  the  President  is  unsatisfactory  to 
the  person  entitled  to  receive  the  same,  such  person  shall  be  paid  fifty  per 
centum  of  the  amount  so  determined  by  the  President  and  shall  be  entitled  to 
sue  the  United  States  to  recover  such  further  sum  as  added  to  said  fifty  per 
centum  shall  make  up  such  amount  as  will  be  just  compensation  therefor,  in  the 
manner  provided  for  by  section  twenty-four,  paragraph  twenty,  and  section 
one  hundred  and  forty-five  of  the  Judicial  Code. —  (39  Stat.,  1193,  chap.  180.) 

So  much  of  this  act  as  related  to  the  authority 

of  the  President  in  time  of  national  emer- 
gency, expired,  bv  its  terms,  on  March  1, 

1918. 
The  authority  granted  the  President  by  this 

act,  to  be  exercised  in  time  of  war,  was  "in 

addition  to"  the  authoritv  contained  in 

act  of  June  3,  1916,  section  120  (39  Stat., 

213);  see  also  acts  of  September  7,  1916, 

section  10  (39  Stat.,  731),  and  August  29, 

1916  (39  Stat.,  592). 
Other  pro\isions  for  procurement  of  ships  and 

material,   cancellation  of  contracts,   etc., 

were  contained  in  act  of  June  15,  1917  (40 

Stat.,    182-183),    which  in   terms  was  to 

expire  six  months  after  a  treaty  of  peace 


proclaimed  between  this  Government  and 
the  German  Empire.  Said  act  of  June 
15,  1917,  was  amended  bv  acts  of  April  22, 
1918  (40  Stat.,  535),  and  November  4, 
1918  (40  Stat.,  1022),  and  was  repealed, 
together  with  said  amendments,  by  act  of 
June  5,  1920  (41  Stat.,  988),  which  also  re- 
pealed an  act  approved  July  18,  1918  (40 
Stat.,  913),  which  contained  authority  for 
commandeering  vessels  during  the  then 
existing  war. 

Other  pro\isions  on  this  subject,  but  limited 
to  the  then  existing  war,  were  contained 
in  act  of  Jiily  1,  1918  (40  Stat.,  719-720). 

As  to  changes  in  contracts,  see  note  to  act  of 
August  3,  1886  (24  Stat.,  215). 

[1917,  Apr.  25.  Extension  of  minority  enlistments.]  That  hereafter  any 
enlistment  for  minority  in  the  Navy  or  Marine  Corps  may  be  extended  as  is 
provided  by  law  for  extending  an  enlistment  for  a  term  of  four  years,  under 
similar  conditions  and  with  like  rights,  privileges,  benefits,  and  obligations. — 
(40  Stat.,  38,  chap.  6.) 

See  sections  1418,  1573,  and  1608,  Re^dsed  Statutes,  and  notes  thereto. 

[1917,  May  12.  Government  employees,  members  of  Officers'  Reserve  Corps; 
leaves  of  absence ;  reinstatement.]  That  all  officers  and  employees  of  the  United 
States  or  of  the  District  of  Columbia  who  shall  be  members  of  the  Officers' 
Reserve  Corps  shall  be  entitled  to  leave  of  absence  from  their  respective  duties, 
without  loss  of  pay,  time,  or  efficiency  rating,  on  all  days  during  which  they 
shall  be  ordered  to  duty  with  troops  or  at  field  exercises,  or  for  instruction,  for 
periods  not  to  exceed  fifteen  days  in  any  one  calendar  year. 

Provided  further,  That  members  of  the  Officers'  Reserve  Corps  who  are  in 
the  employ  of  the  United  States  Government  or  of  the  District  of  Columbia 
and  who  are  ordered  to  duty  by  proper  authority  shall,  when  relieved  from 
duty,  be  restored  to  the  positions  held  by  them  when  ordered  to  duty. — (40 
Stat.,  72,  chap.  12.) 

1476 


PL  3.  STAT UTES  A T  LARGE.  May  18,1917. 


Statutes,    under    "Honorably    discharged 
soldiers  or  sailors." 


See  act  of  June  3,  1916,  section  80  (39  Stat., 

203),  as  to  employees  belonging  to  National 

^         Guard ;  and  see  note  to  section  416,  Revised 

[1917,  May  12.  Seizure  of  vessels  belonging  to  alien  enemies.]  That  the 
President  be,  and  he  is  hereby,  authorized  to  take  over  to  the  United  States  the 
immediate  possession  and  title  of  any  vessel  within  the  jurisdiction  thereof, 
including  the  Canal  Zone  and  all  territories  and  insular  possessions  of  the  United 
States  except  the  American  Virgin  Islands,  which  at  the  time  of  coming  into 
such  jurisdiction  was  owned  in  whole  or  in  part  by  any  corporation,  citizen, 
or  subject  of  any  nation  with  which  the  United  States  may  be  at  war  when 
such  vessel  shall  be  taken,  or  was  flying  the  flag  of  or  was  under  register  of  any 
such  nation  or  any  political  subdivision  or  municipality  thereof;  and,  through 
the  United  States  Shipping  Board,  or  any  department  or  agency  of  the  Govern- 
ment, to  operate,  lease,  charter,  and  equip  such  vessel  in  any  service  of  the 
United  States,  or  in  any  commerce,  foreign  or  coastwise. 

Sec.  2.  That  the  Secretary  of  the  Navy  be,  and  he  is  hereby,  authorized 
and  directed  to  appoint,  subject  to  the  approval  of  the  President,  a  board  of 
survey,  whose  duty  it  shall  be  to  ascertain  the  actual  value  of  the  vessel,  its 
equipment,  appurtenances,  and  all  property  contained  therein,  at  the  time 
of  its  taking,  and  to  make  a  written  report  of  their  findings  to  the  Secretary  of 
the  Navy,  who  shall  preserve  such  report  with  the  records  of  his  department. 
These  findmgs  shall  be  considered  as  competent  evidence  in  all  proceedings 
on  any  claim  for  compensation. — (40  Stat.,  75,  chap.  13,  Pub.  Res.  No.  2.) 


By  act  of  June  5,  1920,  section  4  (41  Stat., 
990),  it  was  provided  that  vessels  acquired 
by  the  President  pursuant  to  this  joint 
resolution,  ''are  hereby  transferred  "  to  the 


Shipping  Board,  with  certain  exceptions 
which  included  ''all  vessels  in  the  military 
and  naval  service  of  the  United  States." 


[1917,  May  18,  sec.  12.  Liquor  prohibition  authorized,  near  military  camps, 
etc.]  That  the  President  of  the  United  States,  as  Commander  in  Chief  of  the 
Army,  is  authorized  to  make  such  regulations  governing  the  prohibition  of 
alcoholic  liquors  in  or  near  military  camps  and  to  the  officers  and  enlisted 
men  of  the  Army  as  he  may  from  time  to  time  deem  necessary  or  advisable: 
Provided,  That  no  person,  corporation,  partnership,  or  association  shall  sell, 
supply,  or  have  in  his  or  its  possession  any  intoxicating  or  spirituous  liquors 
at  any  military  station,  cantonment,  camp,  fort,  post,  officers'  or  enlisted  men's 
club,  which  is  being  used  at  the  time  for  military  purposes  under  this  Act, 
but  the  Secretary  of  War  may  make  regulations  permitting  the  sale  and  use  of 
intoxicating  liquors  for  medicinal  purposes.  It  shall  be  unla%vful  to  sell  any 
intoxicating  liquor,  including  beer,  ale,  or  wine,  to  any  officer  or  member  of  the 
military  forces  while  in  uniform,  except  as  herein  provided.  Any  person 
corporation,  partnership,  or  association  violating  the  provisions  of  this  section 
or  the  regulations  made  thereunder  shall,  unless  otherwise  punishable  under 
the  Articles  of  War,  be  deemed  guilty  of  a  misdemeanor  and  be  punished  by  a 
fine  of  not  more  than  $1,000  or  imprisonment  for  not  more  than  twelve  months, 
or  both.  — (40  Stat.,  82-83,  chap.  15.) 

This  section  was  amended  by  act  of  October  6,  i       the  word  'military'  shall  include  'naval'; 
1917  (40  Stat.,  393),  which  provided  that,  'Article  of  War'  shall  include  'Articles  for 

in    construing    this    section,    "the    word  |       the  Government  of  the  Navy';    the  words 
'Army 'shall  extend  to  and  include 'Navy';  'camps,  station,  cantonment,  camp,  fort, 

1477 


May  22,  1917. 


PL  S.  STATUTES  AT  LARGE. 


post,  ofTicors' or  onlistod  men's  club,"  *  *  * 
shall  include  such  i)laces  under  naval  juris- 
diction as  the  President  may  prescribe, 
and  the  powers  therein  conferred  upon  the 
Secretary  of  War  with  regard  to  the  military 
service  are  hereby  conferred  upon  the 
Swretary  of  the  IS'avy  with  regard  to  the 
naval  ser\-ice." 
By  the  National  Prohibition  Act  of  October  28, 
1919,  section  7  (41  Stat.,  307),  it  was  pro- 
vided that  'None  of  the  provisions  of  this 
Act  shall  be  construed  to  repeal  any  of  the 
pro\isions  of  the  'War  Prohibition  Act,' 
or  to  limit  or  annul  any  order  or  regiilation 
prohibiting  tlie  manufacture,  sale,  or  dis- 
position of  intoxicating  liquors  within  cer- 
tain prescribed  zones  or  districts,  nor  shall 
the  j^roxisions  of  this  Act  be  construed  to 
])rohibit  the  use  of  the  power  of  the  militaiy 
or  naval  authorities  to  enforce  the  regula- 
tions of  the  President  or  Secretary  of  War 
or  Navy  issued  in  pursuance  of  law,  pro- 
hibiting the  manufacture,  use,  possession, 
sale,  or  other  disposition  of  intoxicating 
liquors  during  the  period  of  the  war  and 
demobilization  thereafter."  The  same  act, 
section  3.5  (41  Stat.,  317),  provided  that 
' '  all  provisions  of  law  that  are  inconsistent 
with  this  Act  are  repealed  only  to  the  extent 
of  such  inconsistency  and  the  regulations 
herein  provided   for  the  manufacture  or 


traffic  in  intoxicating  liquor  shall  be  con- 
strued as  in  addition  to  existing  laws." 
See  section  1624,  Revised  Statutes,  article  13, 
and  Constitution,  eighteenth  amendment. 
Section  13  of  the  above  act  of  May  18,  1917  (40 
Stat.,  83),  relating  to  prostitution,  etc.,  near 
military  places,  which  was  also  extended  by 
act  of  October  6,  1917  (40  Stat.,  393),  to  in- 
clude naval  places,  was  in  terms  limited  to 
"the  present  war,"  and  is  therefore  omitted. 
Arrest  of  civilians  by  naval  authorities. — 
The    act    of    May    18,    1917,    section    12,    as 
amended  by  act  of  October  6,  1917,  was  not 
repealed  by  the  National  Prohibition  Act  of 
October  28,  1919.     The  general  orders  issued 
piirsuant  to  the  former  statutes  (G.   O.  411, 
Aug.  3,  1918,  and  G.  O.  412,  Aug.  16,  1918)  are 
therefore  still  in  effect,  and  the  commanding 
officer  of  a  maiine  barracks  is  authorized,  in  the 
enforcement  of  said  orders,  to  arrest  ci\'ilians 
who  are  apprehended  in  the  act  of  Aiolating  any 
of  the  provisions  of  said  oi'ders,  and  to  retain 
them  in  custody  no,  longer  than  is  necessary  to 
turn  them  over  to  the  proper  ci\'il  authorities 
of  the  United   States.     He  is  not,   however, 
authorized  to  arrest  civilians  except  on  the 
Government    reservation;    offenders    outside, 
although  within  the  zone  prescribed  by  general 
orders,  should  be  arrested  by  the  Federal  ciWl 
authorities,  to  whom  report  of  the  facts  should 
be  made.     (File  29163-2,  Feb.  24,  1920.) 


[1917,  May  22.  "Authorized  enlisted  strength"  defined;  instruction  in 
trade  schools.]  *  *  *  That  the  phrase  ''authorized  enhsted  strength," 
as  applied  to  the  personnel  of  the  Navy,  shall  mean  the  total  number  of  enlisted 
men  of  the  Navy  authorized  by  law,  exclusive  of  the  Hospital  Corps,  apprentice 
seamen,  those  sentenced  by  court-martial  to  discharge,  those  detailed  for  duty 
with  Naval  Militia,  those  furloughed  without  pay,  enlisted  men  of  the  Flying 
Corps,  and  those  under  instruction  in  trade  schools:  Provided  further,  That  the 
number  of  enlisted  men  for  instruction  in  trade  schools  shall  not  at  any  time 
exceed  fourteen  thousand,  which  number  is  hereby  temporarilv  authorized. 
*     *     *.— (40  Stat.,  84,  chap.  20;  40  Stat.,  714,  chap.  114.) 


This  section  was  expressly  amended  and 
reenacted  to  read  as  above  by  act  of  July  1, 
1918  (40  Stat.,  714).  The  omitted  portions 
of  this  section  and  other  provisions  of  this 
act  were  temporary  legislation,  no  longer 
in  force. 

As  to  authorized  enUsted  strength  of  the  Navy, 
see  note  to  section  1417,  ReAdsed  Statutes. 


By  act  of  July  11,  1919  (41  Stat.,  138),  tempo- 
rarily increasing  the  "total  authorized 
enlisted  strength  of  the  active  list  of  the 
Navy,"  it  was  provided  ''that  nothing 
herein  shall  be  construed  as  affecting  the 
permanent  *  *  *  enlisted  strength  of 
the  Regular  Navy  as  authorized  bv  existing 
law." 


[1917,  May  22,  sec.  2.  Privates,  first  class,  Marine  Corps.]  *  *  *  That 
not  more  than  twenty-five  per  centum  of  the  authorized  number  of  privates  in 
the  IVIarine  Corps  shall  have  the  rank  of  private,  first  class,  which  rank  is  hereby 
established  in  the  Marine  Corps.— (40  Stat.,  84-85,  chap  20;  40  Stat.,  714, 
chap.  114.) 


This  section  was  expressly  amended  and 
reenacted  to  read  as  above  by  act  of  Julv  1, 
1918  (40  Stat.,  714).  Other  portions  of 
the  section  are  omitted  ?-s  temporary. 


See  note  to  section  1596,  Revised  Statutes,  as 
to  the  organization  of  the  Marine  Corps 
and  number  of  enlisted  men. 


1478 


Pt.3.  STATUTES  AT  LARGE. 


May  22,  1917. 


*      * 


[1917,  May  22,  sec.  5.  Commissions  to  midshipmen  on  graduation.]  *  *  * 
the  class  of  midshipmen  graduated  from  the  Naval  Academy  on  March  twenty- 
ninth,  nineteen  hundred  and  seventeen,  and  the  classes  to  be  graduated  here- 
after, may  be  commissioned  effective  from  date  of  graduation 
(40  Stat.,  86,  chap.  20;  40  Stat.,  716,  chap.  114.) 

This  section  was  reenacted  by  act  of  July  1, 1918 

(40  Stat.,  716),  but  without  any  change  in 

the  clause  above  set  forth. 
Other  portions  of  this  section  are  omitted  as 

temporary. 
See  note  to  act  of  August  29,  1916(39  Stat.,  576), 

as  to  distribution  in  grades  of  line  officers; 

and  note  to  section  1521,  Revised  Statutes, 

as  to  appointment  of  midshipmen  to  com- 
missioned grades  on  graduation  from  the 

Naval  Academy. 


The  word  "  effective  "  as  used  in  this  clause 
is  sufficiently  broad  to  authorize  the  treating 
of  midshipmen,  when  commissioned,  as  though 
they  had  been  commissioned  on,  instead  of  from, 
date  of  graduation ;  and  in  making  computations 
to  determine  the  distribution  of  officers  in  the 
various  grades  and  ranks.  Midshipmen  so 
commissioned  may  be  counted  as  though  they 
had  been  commissioned  on  date  of  graduation. 
(File  11130-41,  May  21,  1917;  see  act  of  August 
29,  1916,  39  Stat.,  577,  as  to  computations.) 


[1917,  May  22,  sec.  11.  Additional  warrant  officers  in  the  Marine  Corps.] 
That  the  appointment  of  thirty  marine  gunners,  thirty  quartermaster's  clerks, 
and  nine  clerks  to  assistant  paymasters,  additional  to  the  number  now  pre- 
scribed by  law,  and  the  temporary  appointment  of  eight  clerks  to  assistant 
paymasters  for  the  war,  is  hereby  authorized,  such  appointments  to  be  made 
in  the  manner  now  provided  by  law. — (40  Stat.,  87,  chap.  20.) 


See  act  of  August  29,  1916  (39  Stat.,  611),  and 
note  thereto,  as  to  number  of  warrant 
officers   in  the  Marine  Corps;  see  act  of 


July  1,  1918  (40  Stat.,  735),  as  to  pay  clerks 
in  the  Marine  Corps;  see  also  note  to  section 
1596,  Revised  Statutes. 


[1917,  May  22,  sec.  15.  Pay  of  enlisted  men.]  That  commencing  June 
first,  nineteen  hundred  and  seventeen,  and  continuing  until  not  later  than  six 
months  after  the  termination  of  the  present  war,  all  enlisted  men  of  the  Navy 
of  the  United  States  in  active  service  whose  base  pay  does  not  exceed  $21  per 
month  shall  receive  an  increase  of  $15  per  month;  those  whose  base  pay  is 
over  $21  and  does  not  exceed  $24  per  month,  an  increase  of  $12  per  month; 
those  whose  base  pay  is  over  $24  and  less  than  $45  per  month,  an  increase  of 
$8  per  month;  and  those  whose  base  pay  is  $45  or  more  per  month,  an  increase 
of  $6  per  month:  Provided,  That  the  increases  of  pay  herein  authorized  shall 
not  enter  into  the  computation  of  continuous-service  pay. — (40  Stat.,  87, 
chap.  20.) 

By  act  of  July  11,  1919  (41  Stat.,  140),  the  rates 
of  pay  prescribed  in  this  section  were 
"made  the  permanent  rates  of  pay  of  the 
enlisted  men  of  the  Navy  during  their 
present  current  enlistment  and  for  those 

[1917,  May  22,  sec.  16.  Coast  and  Geodetic  Survey,  transfer  to  Navy  during 
war;  status  and  rank  of  personnel.]  That  the  President  is  hereby  authorized, 
whenever  in  his  judgment  a  sufficient  national  emergency  exists,  to  transfer 
to  the  service  and  jurisdiction  of  the  War  Department,  or  of  the  Navy  Depart- 
ment, such  vessels,  equipment,  stations,  and  personnel  of  the  Coast  and  Geodetic 
Survey  as  he  may  deem  to  the  best  interest  of  the  country,  and  after  such  trans- 
fer all  expenses  connected  therewith  shall  be  defrayed  out  of  the  appropriations 
for  the  department  to  wliich  transfer  is  made:  Provided,  That  such  vessels, 
equipment,  stations,  and  personnel  shall  be  returned  to  the  Coast  and  Geodetic 
Survey  when  such  national  emergency  ceases,  in  the  opinion  of  the  President, 


who  enlist  or  reenlist  prior  to  July  1,  1920, 
for  the  term  of  such  enlistment  or  reenlist- 
ment." 
See  note  to  section  1569,  Revised  Statutes,  as 
to  pay  of  enlisted  men  of  the  Navy. 


1479 


May  22,  1917.  Pt.  S.  STA  TUTES  A  T  LARGE. 

and  notliing  in  this  Act  shall  be  construed  as  transferring  the  Coast  and  Geodetic 
Survey  or  any  of  its  functions  from  the  Department  of  Conamerce  except  in 
time  of  national  emergency  and  to  the  extent  herein  provided:  Provided 
further,  That  any  of  the  personnel  of  the  Coast  and  Geodetic  Sm-vey  who  may  be 
transferred  as  herein  provided  shall,  while  under  the  jurisdiction  of  the  War 
Department  or  Navy  Department,  have  proper  military  status  and  shall  be 
subject  to  the  laws,  regulations,  and  orders  for  the  government  of  the  Army  or 
Nav}^,  as  the  case  may  be,  in  so  far  as  the  same  may  be  applicable  to  persons 
whose  retention  permanently  in  the  military  service  of  the  United  States  is 
not  contemplated  by  law  *  *  *.  While  actually  employed  in  active  service 
under  direct  orders  of  the  War  Department  or  of  the  Navy  Department  members 
of  the  Coast  and  Geodetic  Survey  shall  receive  the  benefit  of  all  provisions  of 
laws  relating  to  disability  incurred  in  line  of  duty  or  loss  of  life. 

When  serving  with  the  Army  or  Navy  the  relative  rank  shall  be  as  follows: 

Hydrographic  and  geodetic  engineers  receiving  $4,000  or  more  shall  rank 
with  and  after  colonels  in  the  Army  and  captains  in  the  Navy. 

Hydrogi'aphic  and  geodetic  engineers  receiving  S3, 000  or  more  but  less 
than  S4,000  shall  rank  with  and  after  lieutenant  colonels  in  the  Army  and  com- 
manders in  the  Navy. 

Hj-di'ographic  and  geodetic  engineers  receiving  $2,500  or  more  but  less 
than  $3,000  shall  rank  with  and  after  majors  in  the  Army  and  lieutenant  com- 
manders in  the  Navy. 

Hydrographic  and  geodetic  engineers  receiving  $2,000  or  more  but  less 
than  $2,500  shall  rank  with  and  after  captains  in  the  Army  and  lieutenants 
in  the  Navy. 

Junior  hydrographic  and  geodetic  engineers  shall  rank  with  and  after  first 
lieutenants  in  the  Army  and  lieutenants  (junior  grade)  in  the  Navy. 

Aids  shall  rank  with  and  after  second  lieutenants  in  the  Army  and  ensigns 
in  the  Navy. 

And  nothing  in  this  Act  shall  be  construed  to  affect  or  alter  their  rates  of 
pay  and  allowances  when  not  assigned  to  military  duty  as  hereinbefore  men- 
tioned. 

The  Secretary  of  War,  the  Secretary  of  the  Navy,  and  the  Secretary  of 
Commerce  shall  jointly  prescribe  regulations  governing  the  duties  to  be  per- 
formed by  the  Coast  and  Geodetic  Survey  in  time  of  war,  and  for  the  cooperation 
of  that  service  with  the  War  and  Navy  Departments  in  time  of  peace  in  prepara- 
tions for  its  duties  in  war,  which  regulations  shall  not  be  effective  unless  approved 
by  each  of  the  said  Secretaries,  and  included  therein  may  be  rules  and  regula- 
tions for  making  reports  and  communications  between  the  officers  or  bureaus 
of  the  War  and  Navy  Departments  and  the  Coast  and  Geodetic  Survey. — (40 
Stat.,  87-88,  chap.  20.) 

See  act  of  October  G,  1917  (40  Stat.,  393-394), 
as  to  members  of  Coast  and  Geodetic  Sur- 
vey serving  on  naval  courts-martial  in  time 

[1917,  May  22,  sec.  17.  Precedence  of  medical  officers.]  That  nothing 
contained  in  the  Act  of  August  twenty-ninth,  nineteen  hundred  and  sixteen, 
shall  operate  to  disturb  the  relative  position  of  officers  in  the  Medical  Corps 
with  reference  to  precedence  or  promotion,  but  all  such  ofiicers  otherwise 

1480 


of  war;  and  see  note  to  section  1363,  Re\a8ed 
Statutes. 


Pt.  3.  STATUTES  AT  LARGE.  May  22,  1917. 

qualified  shall  be  advanced  in  rank  with  or  ahead  of  officers  in  said  corps  who 
were  their  juniors  on  the  date  of  said  Act. — (40  Stat.,  89,  chap.  20.) 

See  note  to  act  of  August  29, 191G  (39  Stat.,  576-  for  explanation  of  the  sitTiation  which  thia 


577),  Tinder  "Rank  of  assistant  siirgeons, 


section  was  enacted  to  remedy. 


[1917,  May  22,  sec.  18.  Ranks  of  admiral  and  vice  admiral  for  fleet  officers.] 
That  the  President  be,  and  he  is  hereby,  further  authorized  to  designate  six 
officers  of  the  Navy  for  the  command  of  fleets  or  subdivisions  thereof  and,  after 
being  so  designated  from  the  date  of  assuming  such  command  until  relinquish- 
ing thereof,  not  more  than  three  of  such  officers  shall  each  have  the  rank  and 
pay  of  an  admiral,  and  the  others  shall  each  have  the  rank  and  pay  of  a  vice 
admiral;  and  the  grades  of  admiral  and  vice  admiral  are  hereby  authorized  and 
continued  for  the  purpose  of  this  Act:  Provided,  That  in  time  of  war  the  selec- 
tions under  the  provisions  of  this  section  shall  be  made  from  the  grades  of 
rear  admiral  or  captain  on  the  active  list  of  the  Navy:  Provided  further,  That 
the  pay  of  an  admiral  shall  be  S10,000  and  the  pay  of  a  vice  admiral  $9,000  per 
annum:  Provided  further,  That  in  time  of  peace  officers  for  the  command  of 
fleets  and  subdivisions  thereof,  as  herein  authorized,  shall  be  designated  from 
among  the  rear  admirals  on  the  active  list  of  the  Navy:  Provided  further,  That 
nothing  herein  contained  shall  create  any  vacancy  in  any  grade  in  the  Navy  or 
increase  the  total  number  of  officers  authorized  by  law:  Provided  further, 
That  when  an  officer  with  the  rank  of  admiral  or  vice  admiral  is  detached  from 
the  command  of  a  fleet  or  subdivision  thereof,  as  herein  authorized,  he  shall 
return  to  his  regular  rank  in  the  list  of  officers  of  the  Navy  and  shall  thereafter 
receive  only  the  pay  and  allowances  of  such  rank:  Ahd  provided  further,  That 
nothing  in  this  Act  shall  be  held  or  construed  as  amending  or  repealing  the  pro- 
visions of  sections  fourteen  hundred  and  thirty-four,  fourteen  hundred  and  sixty- 
three,  and  fourteen  hundred  and  sixty-four  of  the  Revised  Statutes  of  the  United 
States. 

That  the  provision  in  the  Act  approved  March  third,  nineteen  hundred 
and  fifteen,  for  the  designation  of  commanders  in  chief  of  certain  fleets  with 
the  rank  of  admiral  and  for  the  designation  of  officers  second  in  command  of 
such  fleets  with  the  rank  of  vice  admiral  be,  and  the  same  is  hereby,  repealed. — 
(40  Stat.,  89,  chap.  20.) 

See  note  to  section  1362,  Revised  Statutes, 
under  "The  grade  of  Admiral;"  note  to 
section    1556,     Re\'ised     Statutes,     under 

[1917,  May  22,  sec.  20.  Advancement  of  staff  officers,  examinations ;  Secretary 
of  the  Navy  empowered  to  act  for  President  on  records  of  certain  boards.]  That 
hereafter  all  laws  relating  to  the  examination  of  officers  of  the  Navy  for  pro- 
motion shall  be  construed  to  apply  to  the  regular  advancement  of  staff  officers 
to  higher  ranks  on  the  active  list  the  same  as  though  such  advancements  in 
rank  were  promotions  to  higher  grades:  Provided,  That  examinations  for  such 
staff  officers  shall  not  be  required  except  for  such  regular  advancements  in 
rank:  Provided  further,  That  the  President  be,  and  he  is  hereby,  authorized 
to  direct  the  Secretary  of  the  Navy  to  take  such  action  on  the  records  of  pro- 
ceedings of  naval  examining  boards  and  boards  of  naval  surgeons  for  the  pro- 
motion of  officers  of  the  Navy  as  is  now  required  by  law  to  be  taken  by  the 
President.— (40  Stat.,  89-90,  chap.  20.) 

1481 


"2-3.  Admirals;  Vice  admirals;"  and  see 
sections  1434, 1463,  and  1464,  Revised  Stat- 
utes. ^ 


June  15,  1917. 


rt..L  STATUTES  AT  LARGE. 


Espionage  Act. 


See  act  of  March  4,  1917  (39  Stat.,  1182),  which 
contained  a  provision  identical  \vith  the 
first  clause  of  this  section;  see  also  sections 
1480,  1493,  and  149(1,  Revised  Statutes,  and 
notes  thereto,  as  to  examinations  for  promo- 
tion.   As  to  distinction  between     rank" 


and  "grade"  see  notes  to  sections  421,  422, 
423,  13()2,  1457,  1477,  1479,  1480,  and  1481 
Revised  Statutes. 
See  section  1502,  Revised  Statutes,  as  to  action 
of  the  President  on  records  of  promotion 
boards  in  the  Navy. 


[1917,  June  15.  Commutation  allowed  Nurse  Corps,]  Members  of  Nurse 
Corps  (female)  *  *  *  shall  hereafter  be  paid  the  same  commutation  as  is 
or  may  be  allowed  members  of  the  Nurse  Corps  of  the  Army. — (40  Stat.,  209, 
chap.  29.) 

See  note  to  section  1556,  Revised  Statutes,  under  "36.  Dental  Corps;  and  Nurse  Corps 
(female)." 

[1917,   June    15.  Purchase    of   vessels    for    transportation   of   fuel.]     That 

when,  in  the  opinion  of  the  President,  the  prices  asked  for  the  charter  of  vessels 

for  the  transportation  of  fuel  are  excessive,  he  is  authorized  to  purchase  vessels 

suitable  for  the  purpose  and,  if  money  is  not  otherwise  available,  to  pay  for 

them  from   the   appropriation   "Fuel    and   transportation." — (40   Stat.,  211, 

chap.  29.) 

Identical  provision  was  contained  in  act  of 
July  1,  1918  (40  Stat.,  730). 


See  act  of  April  28,  1904  (33  Stat.,  518),  and  sec- 
tions 3711,  3718,  and  3728,  Revised  Stat- 
utes. 


[1917,  June  15.  Reserve  material,  Navy.]  For  procuring  apparatus  and 
materials  (other  than  ordnance  materials  and  medical  stores) ,  as  a  war  reserve 
necessary  to  be  carried  in  the  supply  departments  for  the  purpose  of  fitting 
out  vessels  of  the  fleet  and  merchant  auxiliaries  in  time  of  war  or  when,  in 
the  opinion  of  the  President,  a  national  emergency  exists,  $2,000,000:  Provided, 
That  to  prevent  deterioration  materials  purchased  under  the  reserve  material 
Navy  fund  shall  be  used  as  required  in  time  of  peace,  and  when  so  used  reim- 
bursement shall  be  made  to  this  appropriation  from  current  naval  appropria- 
tions in  order  that  additional  stocks  may  be  procured. — (40  Stat.,  211,  chap. 
29.) 

Similar  provision  was  contained  in  act  of  March       See  sections  3689,  3G90,  and  3718,  Revised  Stat- 
4,  1917  (39  Stat.,  1183).  utes,  and  notes  thereto. 

[1917,  June  15.  Espionage;  international  relations;  enforcement  of  neu- 
trality ;  forgery  of  Government  seal,  military  papers,  etc. ;  illegal  use  of  mails ; 
use  of  naval  forces.] 

Title  I. 


ESPIONAGE. 

Section  1.  That  (a)  whoever,  for  the  purpose  of  obtaining  information 
respecting  the  national  defense  with  intent  or  reason  to  believe  that  the  informa- 
tion to  be  obtained  is  to  be  used  to  the  injury  of  the  United  States,  or  to  the 
advantage  of  any  foreign  nation,  goes  upon,  enters,  flies  over,  or  otherwise 
obtains  information  concerning  any  vessel,  aircraft,  work  of  defense,  navy  yard, 
naval  station,  submarine  base,  coaling  station,  fort,  battery,  torpedo  station, 
dockyard,  canal,  railroad,  arsenal,  camp,  factory,  mine,  telegraph,  telephone, 
wireless,  or  signal  station,  building,  office,  or  other  place  connected  with  the 
national  defense,  owned  or  constructed,  or  in  progress  of  construction  by  the 
United  States  or  under  the  control  of  the  United  States,  or  of  any  of  its  officers 


1482 


Espionage  Act.  Ft.  3.  STATUTES  AT  LARGE.  June  15,  1917. 

or  agents,  or  within  the  exclusive  jurisdiction  of  the  United  States,  or  any 
place  in  which  any  vessel,  aircraft,  arms,  munitions,  or  other  materials  or  in- 
struments for  use  in  time  of  war  are  being  made,  prepared,  repaired,  or  stored, 
imder  any  contract  or  agreement  with  the  United  States,  or  with  any  person  on 
behalf  of  the  United  States,  or  otherwise  on  behalf  of  the  United  States,  or  any 
prohibited  place  within  the  meaning  of  section  six  of  this  title;  or  (b)  whoever, 
for  the  purpose  aforesaid,  and  with  like  intent  or  reason  to  believe,  copies, 
takes,  makes,  or  obtains,  or  attempts,  or  induces  or  aids  another  to  copy,  take, 
make,  or  obtain,  any  sketch,  photograph,  photographic  negative,  blue  print, 
plan,  map,  model,  instrument,  appliance,  document,  writing,  or  note  of  any- 
thing connected  with  the  national  defense;  or  (c)  whoever,  for  the  purpose 
aforesaid,  receives  or  obtains  or  agrees  or  attempts  or  induces  or  aids  another 
to  receive  or  obtain  from  any  person,  or  from  any  source  whatever,  any  docu- 
ment, writing,  code  book,  signal  book,  sketch,  photograph,  photographic 
negative,  blue  print,  plan,  map,  model,  instrument,  appliance,  or  note,  of  any- 
thing connected  with  the  national  defense,  knowing  or  having  reason  to  be- 
heve,  at  the  time  he  receives  or  obtains,  or  agrees  or  attempts  or  induces  or 
aids  another  to  receive  or  obtain  it,  that  it  has  been  or  will  be  obtained,  taken, 
made  or  disposed  of  by  any  person  contrary  to  the  provisions  of  this  title;  or 
(d)  whoever,  lawfully  or  imlawfully  having  possession  of,  access  to,  control 
over,  or  being  intrusted  with  any  document,  writing,  code  book,  signal  book, 
sketch,  photograph,  photographic  negative,  blue  print,  plan,  map,  model, 
instrument,  appliance,  or  note  relating  to  the  national  defense,  willfully  commu- 
nicates or  transmits  or  attempts  to  communicate  or  transmit  the  same  to  any 
person  not  entitled  to  receive  it,  or  willfully  retains  the  same  and  fails  to  de- 
liver it  on  demand  to  the  officer  or  employee  of  the  United  States  entitled  to 
receive  it;  or  (e)  whoever,  being  intrusted  with  or  having  lawful  possession  or 
control  of  any  document,  writing,  code  book,  signal  book,  sketch,  photograph, 
photographic  negative,  blue  print,  plan,  map,  model,  note,  or  information, 
relating  to  the  national  defense,  through  gross  negligence  permits  the  same  to 
be  removed  from  its  proper  place  of  custody  or  dehvered  to  anyone  in  viola- 
tion of  his  trust,  or  to  be  lost,  stolen,  abstracted,  or  destroyed,  shall  be  punished 
by  a  fine  of  not  more  than  $10,000,  or  by  imprisonment  for  not  more  than  two 
years,  or  both.— (40  Stat.,  217-218,  chap.  30.) 

See  Criminal  Code,  act  of  March  4,  1909,  section  45  (35  Stat.,  1097). 

Sec.  2.  (a)  Whoever,  with  intent  or  reason  to  beheve  that  it  is  to  be  used 
to  the  injury  of  the  United  States  or  to  the  advantage  of  a  foreign  nation,  com- 
municates, dehvers,  or  transmits,  or  attempts  to,  or  aids  or  induces  another  to, 
communicate,  dehver,  or  transmit,  to  any  foreign  government,  or  to  any  fac- 
tion or  party  or  military  or  naval  force  within  a  foreign  country,  whether 
recognized  or  unrecognized  by  the  United  States,  or  to  any  representative, 
officer,  agent,  employee,  subject,  or  citizen  thereof,  either  directly  or  indirectly, 
any  document,  writing,  code  book,  signal  book,  sketch,  photograph,  photo- 
graphic negative,  blue  print,  plan,  map,  model,  note,  instrument,  apphance, 
or  information  relating  to  the  national  defense,  shall  be  punished  by  imprison- 
ment for  not  more  than  twenty  years:  Provided,  That  whoever  shall  violate 
the  provisions  of  subsection  (a)  of  this  section  in  time  of  war  shall  be  punished 

54641°— 22 94  1483 


June  15,  1917.  PL  3.  STATUTES  AT  LARGE.  Espionage  Act. 

by  death  or  by  imprisonment  for  not  more  than  thirty  years;  and  (b)  whoever, 
in  time  of  war,  with  intent  that  the  same  shall  be  communicated  to  the  enemy, 
shall  collect,  record,  publish,  or  communicate,  or  attempt  to  ehcit  any  informa- 
tion with  respect  to  the  movement,  numbers,  description,  condition,  or  disposi- 
tion of  any  of  the  armed  forces,  ships,  aircraft,  or  war  materials  of  the  United 
States,  or  with  respect  to  the  plans  or  conduct,  or  supposed  plans  or  conduct 
of  any  naval  or  military  operations,  or  with  respect  to  any  works  or  measures 
undertaken  for  or  connected  with,  or  intended  for  the  fortification  or  defense 
of  any  place,  or  any  other  information  relating  to  the  public  defense,  which 
might  be  useful  to  the  enemy,  shall  be  punished  by  death  or  by  imprisonment 
for  not  more  than  thirty  years. — (40  Stat.,  218-219,  chap.  30.) 

Sec.  3.  T\Tioever,  when  the  United  States  is  at  war,  shall  willfully  make 
or  convey  false  reports  or  false  statements  with  intent  to  interfere  with  the 
operation  or  success  of  the  military  or  naval  forces  of  the  United  States  or  to 
promote  the  success  of  its  enemies  and  whoever,  when  the  United  States  is  at 
war,  shall  willfully  cause  or  attempt  to  cause  insubordmation,  disloyalty, 
mutiny,  or  refusal  of  duty,  in  the  military  or  naval  forces  of  the  United  States, 
or  shall  willfully  obstruct  the  recruiting  or  enlistment  service  of  the  United 
States,  to  the  injury  of  the  service  or  of  the  United  States,  shall  be  punished  by 
a  fine  of  not  more  than  $10,000  or  imprisonment  for  not  more  than  twenty 
years,  or  both. — (40  Stat.,  219,  chap.  30.) 


This  section  was  amended  and  reenacted  by 
actoi  May  16,  1918  (40  Stat.,  553-554), 
which  amendatory  act  was  repealed  and 
the  original  section,  as  above  set  forth, 


"reAT-ved  and  restored  with  the  same 
force  and  effect  as  originally  enacted,"  by 
Joint  Resolution  of  March  3,  1921  (41 
Stat.,  1360). 


Sec.  4.  If  two  or  more  persons  conspire  to  violate  the  provisions  of  sec- 
tions two  or  three  of  this  title,  and  one  or  more  of  such  persons  does  any  act 
to  effect  the  object  of  the  conspiracy,  each  of  the  parties  to  such  conspiracy 
shall  be  punished  as  in  said  sections  provided  in  the  case  of  the  domg  of  the 
act  the  accomplishment  of  which  is  the  object  of  such  conspiracy.  Except  as 
above  provided  conspiracies  to  commit  offenses  under  this  title  shall  be  pmiished 
as  provided  by  section  thirty-seven  of  the  Act  to  codify,  revise,  and  amend 
the  penal  laws  of  the  United  States  approved  March  fourth,  nineteen  hundred 
and  nine. 

Sec.  5.  Whoever  harbors  or  conceals  any  person  who  he  loiows,  or  has 
reasonable  groimds  to  believe  or  suspect,  has  committed,  or  is  about  to  commit, 
an  offense  under  this  title  shall  be  punished  by  a  fine  of  not  more  than  $10,000 
or  by  imprisonment  for  not  more  than  two  years,  or  both. 

Sec.  6.  The  President  in  time  of  war  or  in  case  of  national  emergency 
may  by  proclamation  designate  any  place  other  than  those  set  forth  in  subsec- 
tion (a)  of  section  one  hereof  in  which  anything  for  the  use  of  the  Army  or 
Navy  is  being  prepared  or  constructed  or  stored  as  a  prohibited  place  for  the 
purposes  of  this  title:  Provided,  That  he  shall  determme  that  information 
with  respect  thereto  would  be  prejudicial  to  the  national  defense. 

Sec.  7.  Nothing  contamed  in  this  title  shall  be  deemed  to  limit  the  juris- 
diction of  the  general  courts-martial,  military  commissions,  or  naval  courts- 
martial  under  sections  thirteen  hundred  and  forty-two,  thirteen  hundred  and 
forty-three,  and  sixteen  hunded  and  twenty-four  of  the  Revised  Statutes  as 
amended. 

1484 


Espionage  Act.  PL  3.  STATUTES  AT  LARGE.  June  15,  1917. 

Sec.  8.  The  provisions  of  this  title  shall  extend  to  all  Territories,  posses- 
sions, and  places  subject  to  the  jurisdiction  of  the  United  States  whether  or 
not  contiguous  thereto,  and  offenses  under  this  title  when  committed  upon  the 
high  seas  or  elsewhere  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States  and  outside  the  terriiorial  limits  thereof  shall  be  punishable 
hereunder. 

Sec.  9.  The  Act  entitled  "An  Act  to  prevent  the  disclosure  of  national 
defense  secrets,"  approved  March  third,  nineteen  hundred  and  eleven,  is  hereby 
repealed.— (40  Stat.    219,  chap.  30.) 

Title  II. 

VESSELS  IN  PORTS  OF  THE  UNITED  STATES. 

Section  1.  Whenever  the  President  by  proclamation  or  Executive  order 
declares  a  national  emergency  to  exist  by  reason  of  actual  or  threatened  war, 
insurrection,  or  mvasion,  or  disturbance  or  threatened  disturbance  of  the  mtcr- 
national  relations  of  the  United  States,  the  Secretary  of  the  Treasury  may 
make,  subject  to  the  approval  of  the  President,  rules  and  regulations  governing 
the  anchorage  and  movement  of  any  vessel,  foreign  or  domestic,  in  the  terri- 
torial waters  of  the  United  States,  may  mspect  such  vessel  at  any  time,  place 
guards  thereon,  and,  if  necessary  in  his  opinion  in  order  to  secure  such  vessels 
from  damage  or  injury,  or  to  prevent  damage  or  injury  to  any  harbor  or  waters 
of  the  United  States,  or  to  secure  the  observance  of  the  rights  and  obligations 
of  the  United  States,  may  take,  by  and  with  the  consent  of  the  President,  for 
such  purposes,  full  possession  and  control  of  such  vessel  and  remove  therefrom 
the  officers  and  crew  thereof  and  all  other  persons  not  specially  authorized  by 
him  to  go  or  remain  on  board  thereof. 

Withm  the  territory  and  waters  of  the  Canal  Zone  the  Governor  of  the 
Panama  Canal,  with  the  approval  of  the  President,  shall  exercise  all  the  powers 
conferred  by  this  section  on  the  Secretary  of  the  Treasury. 

Sec.  2.  If  any  owner,  agent,  master,  officer,  or  person  m  charge,  or  any 
member  of  the  crew  of  any  such  vessel  fails  to  comply  with  any  regulation  or  rule 
issued  or  order  given  by  the  Secretary  of  the  Treasury  or  the  Governor  of  the 
Panama  Canal  under  the  provisions  of  this  title,  or  obstructs  or  interferes 
with  the  exercise  of  any  power  conferred  by  this  title,  the  vessel,  together  with 
her  tackle,  apparel,  furniture,  and  ec^uipment,  shall  be  subject  to  seizure  and 
forfeiture  to  the  United  States  in  the  same  manner  as  merchandise  is  forfeited 
for  violation  of  the  customs  revenue  laws;  and  the  person  guilty  of  such  failure, 
obstruction,  or  interference  shall  be  fined  not  more  than  $10,000,  or  imprisoned 
not  more  than  two  years,  or  both. 

Sec.  3.  It  shall  be  unlawful  for  the  owner  or  master  or  any  other  person 
in  charge  or  command  of  any  private  vessel,  foreign  or  domestic,  or  for  any 
member  of  the  crew  or  other  person,  within  the  territorial  waters  of  the  United 
States,  willfully  to  cause  or  permit  the  destruction  or  injury  of  such  vessel  or 
knowingly  to  permit  said  vessel  to  be  used  as  a  place  of  resort  for  any  person 
conspiring  with  another  or  preparing  to  commit  any  offense  against  the  United 
States,  or  in  violation  of  the  treaties  of  the  United  States  or  of  the  obligations 
of  the  United  States  under  the  law  of  nations,  or  to  defraud  the  United  States, 

1485 


June  15,  1917.  Pt.  S.  STATUTES  AT  LARGE.  Espionage  Act. 

or  knowingly  to  permit  such  vessels  to  be  used  in  violation  of  the  rights  and 
obligations  of  the  United  States  under  the  law  of  nations ;  and  in  case  such  vessel 
shall  be  so  used,  with  the  knowledge  of  the  owner  or  master  or  other  person  in 
charge  or  command  thereof,  the  vessel,  together  with  her  tackle,  apparel,  fur- 
niture, and  equipment,  shall  be  subject  to  seizure  and  forfeiture  to  the  United 
States  in  the  same  manner  as  merchandise  is  forfeited  for  violation  of  the  customs 
revenue  laws;  and  whoever  violates  this  section  shall  be  fined  not  more  than 
$10,000  or  imprisoned  not  more  than  two  years,  or  both. 

Sec.  4.  The  President  may  employ  such  part  of  the  land  or  naval  forces 
of  the  United  States  as  he  may  deem  necessary  to  carry  out  the  purpose  of 
this  title.— (40  Stat.,  220,  chap.  30.) 

Title  V. 

ENFORCEMENT   OF   NEUTRALITY. 

Section  1.  During  a  war  in  which  the  United  States  is  a  neutral  nation, 
the  President,  or  any  person  thereunto  authorized  by  him,  may  withhold  clear- 
ance from  or  to  any  vessel,  domestic  or  foreign,  which  is  required  by  law  to 
secure  clearance  before  departing  from  port  or  from  the  jurisdiction  of  the 
United  States,  or,  by  service  of  formal  notice  upon  the  owner,  master,  or  per- 
son in  command  or  having  charge  of  any  domestic  vessel  not  required  by  law 
to  secure  clearances  before  so  departing,  to  forbid  its  departure  from  port  or 
from  the  jurisdiction  of  the  United  States,  whenever  there  is  reasonable  cause 
to  believe  that  any  such  vessel,  domestic  or  foreign,  whether  requiring  clearance 
or  not,  is  about  to  carry  fuel,  arms,  ammunition,  men,  supplies,  dispatches,  or 
information  to  any  warship,  tender,  or  supply  ship  of  a  foreign  belligerent 
nation  in  violation  of  the  laws,  treaties,  or  obligations  of  the  United  States 
under  the  law  of  nations;  and  it  shall  thereupon  be  unlawful  for  such  vessel  to 
depart.— (40  Stat.,  221,  chap.  30.) 

See  Criminal  Code,  act  of  March  4,  1909,  sections  9-18  (35  Stat.,  1089-1091),  for  "offenses 
against  neutrality." 

Sec.  2.  During  a  war  in  which  the  United  States  is  a  neutral  nation,  the 
President,  or  any  person  thereunto  authorized  by  him,  may  detain  any  armed 
vessel  owned  wholly  or  in  part  by  American  citizens,  or  any  vessel,  domestic  or 
foreign  (other  than  one  which  has  entered  the  ports  of  the  United  States  as  a 
pubhc  vessel),  which  is  manifestly  built  for  warlike  purposes  or  has  been  con- 
verted or  adapted  from  a  private  vessel  to  one  suitable  for  warlike  use,  until  the 
owner  or  master,  or  person  having  charge  of  such  vessel,  shall  furnish  proof 
satisfactory  to  the  President,  or  to  the  person  duly  authorized  by  him,  that  the 
vessel  will  not  be  employed  by  the  said  owners,  or  master,  or  person  having 
charge  thereof,  to  cruise  against  or  commit  or  attempt  to  commit  hostilities 
upon  the  subjects,  citizens,  or  property  of  any  foreign  prince  or  state',  or  of  any 
colony,  district,  or  people  with  which  the  United  States  is  at  peace,  and  that 
the  said  vessel  will  not  be  sold  or  delivered  to  any  belligerent  nation,  or  to  an 
agent,  officer,  or  citizen  of  such  nation,  by  them  or  any  of  them,  within  the 
jurisdiction  of  the  United  States,  or,  having  left  that  jurisdiction,  upon  the 
high  seas.— (40  Stat.,  221-222,  chap.  30.) 

1486 


Espionage  Act.  Pt.  S.  STATUTES  AT  LARGE.  June  15,  1917. 

Sec.  3.  During  a  war  in  which  the  United  States  is  a  neutral  nation,  it  shall 
be  unlawfiil  to  send  out  of  the  jurisdiction  of  the  United  States  any  vessel 
built,  armed,  or  equipped  as  a  vessel  of  war,  or  converted  from  a  private  vessel 
into  a  vessel  of  war,  with  any  intent  or  under  any  agreement  or  contract,  written 
or  oral,  that  such  vessel  shall  be  delivered  to  a  belligerent  nation,  or  to  an 
agent,  officer,  or  citizen  of  such  nation,  or  with  reasonable  cause  to  believe  that 
the  said  vessel  shall  or  will  be  employed  in  the  service  of  any  such  belligerent 
nation  after  its  departm*e  from  the  jurisdiction  of  the  United  States. 

Sec.  4.  Dming  a  war  in  which  the  United  States  is  a  neutral  nation,  in 
addition  to  the  facts  required  by  sections  forty-one  hundred  and  ninety-seven, 
forty-one  hundred  and  ninety-eight,  and  forty-two  hundred  of  the  Revised 
Statutes  to  be  set  out  in  the  masters'  and  shippers'  manifests  before  clearance 
will  be  issued  to  vessels  bound  to  foreign  ports,  each  of  which  sections  of  the 
Revised  Statutes  is  hereby  declared  to  be  and  is  continued  in  full  force  and 
effect,  every  master  or  person  having  charge  or  command  of  any  vessel,  domestic 
or  foreign,  whether  requiring  clearance  or  not,  before  departure  of  such  vessel 
from  port  shall  deliver  to  the  collector  of  customs  for  the  district  wherein  such 
vessel  is  then  located  a  statement  duly  verified  by  oath,  that  the  cargo  or  any 
part  of  the  cargo  is  or  is  not  to  be  delivered  to  other  vessels  in  port  or  to  be 
transshipped  on  the  high  seas  and,  if  it  is  to  be  so  delivered  or  transshipped, 
stating  the  kind  and  quantities  and  the  value  of  the  total  quantity  of  each  kind 
of  article  so  to  be  delivered  or  transshipped,  and  the  name  of  the  person,  corpora- 
tion, vessel,  or  government,  to  whom  the  delivery  or  transshipment  is  to  be 
made;  and  the  owners,  shippers,  or  consignors  of  the  cargo  of  such  vessel  shall 
in  the  same  manner  and  under  the  same  conditions  deliver  to  the  collector  like 
statements  under  oath  as  to  the  cargo  or  the  parts  thereof  laden  or  shipped  by 
them,  respectively. 

Sec.  5.  Whenever  it  appears  that  the  vessel  is  not  entitled  to  clearance 
or  whenever  there  is  reasonable  cause  to  believe  that  the  additional  statements 
imder  oath  required  in  the  foregoing  section  are  false,  the  collector  of  customs 
for  the  district  in  which  the  vessel  is  located  may,  subject  to  review  by  the 
Secretary  of  Commerce,  refuse  clearance  to  any  vessel,  domestic  or  foreign,  and 
by  formal  notice  served  upon  the  owners,  master,  or  person  or  persons  in  com- 
mand or  charge  of  any  domestic  vessel  for  which  clearance  is  not  required  by 
law,  forbid  the  departure  of  the  vessel  from  the  port  or  from  the  jurisdiction  of 
the  United  States ;  and  it  shall  thereupon  be  imlawf ul  for  the  vessel  to  depart. 

Sec.  6.  Whoever,  in  violation  of  any  of  the  provisions  of  this  title,  shall 
take,  or  attempt  or  conspu-e  to  take,  or  authorize  the  taking  of  any  such  vessel, 
out  of  port  or  from  the  jurisdiction  of  the  United  States,  shall  be  fined  not  more 
than  $10,000  or  imprisoned  not  more  than  five  years,  or  both;  and,  in  addition, 
such  vessel,  her  tackle,  apparel,  furniture,  equipment,  and  her  cargo  shall  be 
forfeited  to  the  United  States.— (40  Stat.,  222,  chap.  30.) 

Sec.  7.  Whoever,  being  a  person  belonging  to  the  armed  land  or  naval 
forces  of  a  belligerent  nation  or  belligerent  faction  of  any  nation  and  being 
interned  in  the  United  States,  in  accordance  with  the  law  of  nations,  shall  leave 
or  attempt  to  leave  said  jurisdiction,  or  shall  leave  or  attempt  to  leave  the 
limits  of  internment  in  which  freedom  of  movement  has  been  allowed,  without 

1487 


June  15,  1917.  Pt.  S.  STATUTES  AT  LARGE.  Espionage  Act. 

permission  from  the  proper  official  of  the  United  States  in  charge,  or  shall  will- 
fully overstay  a  leave  of  absence  granted  by  such  official,  shall  be  subject  to 
arrest  by  any  marshal  or  deputy  marshal  of  the  United  States,  or  by  the  military 
or  naval  authorities  thereof,  and  shall  be  returned  to  the  place  of  internment 
and  there  confined  and  safely  kept  for  such  period  of  time  as  the  official  of  the 
United  States  in  charge  shall  direct;  and  whoever,  within  the  jurisdiction  of  the 
United  States  and  subject  thereto,  shall  aid  or  entice  any  interned  person  to 
escape  or  attempt  to  escape  from  the  jurisdiction  of  the  United  States,  or  from 
the  limits  of  internment  prescribed,  shall  be  fined  not  more  than  $1,000  or 
imprisoned  not  more  than  one  year,  or  both.     *     *     * 

Sec.  9.  That  the  President  may  employ  such  part  of  the  land  or  naval 
forces  of  the  United  States  as  he  may  deem  necessary  to  carry  out  the  purposes 
of  this  title.     *     *     * 

Sec.  11.  The  joint  resolution  approved  March  fourth,  nineteen  hundred 
and  fifteen,  "To  empower  the  President  to  better  enforce  and  maintain  the 
neutrality  of  the  United  States,"  and  any  Act  or  parts  of  Acts  in  conflict  with 
the  provisions  of  this  title  are  hereby  repealed. — (40  Stat..  223,  chap.  30.) 

Title  VI. 

SEIZURE    OF   ARMS    AND    OTHER    ARTICLES   INTENDED    FOR    EXPORT. 

Section  1.  Whenever  an  attempt  is  made  to  export  or  ship  from  or  take 
out  of  the  United  States,  any  arms  or  munitions  of  war,  or  other  articles,  in 
violation  of  law,  or  whenever  there  shall  be  known  or  probable  cause  to  believe 
that  any  such  arms  or  munitions  of  war,  or  other  articles,  are  being  or  are  in- 
tended to  be  exported,  or  shipped  from,  or  taken  out  of  the  United  States,  in 
violation  of  law,  the  several  collectors,  naval  officers,  surveyors,  inspectors  of 
customs,  and  marshals,  and  deputy  marshals  of  the  United  States,  and  every 
other  person  duly  authorized  for  the  purpose  by  the  President,  may  seize  and 
detain  any  articles  or  munitions  of  war  about  to  be  exported  or  shipped  from, 
or  taken  out  of  the  United  States,  in  violation  of  law,  and  the  vessels  or  vehicles 
containing  the  same,  and  retain  possession  thereof  until  released  or  disposed 
of  as  hereinafter  directed.  If  upon  due  inquiry  as  hereinafter  provided,  the 
property  seized  shall  appear  to  have  been  about  to  be  so  unlawfully  exported, 
shipped  from,  or  taken  out  of  the  United  States,  the  same  shall  be  forfeited  to 
the  United  States      *     *     *.— (40  Stat.,  223-224,  chap.  30.) 

Sec.  6.  Except  in  those  cases  in  which  the  exportation  of  arms  and  muni- 
tions of  war  or  other  articles  is  forbidden  by  proclamation  or  otherwise  by  the 
President,  as  provided  in  section  one  of  this  title,  nothing  herein  contained 
shall  be  construed  to  extend  to,  or  interfere  with  any  trade  in  such  commodities, 
conducted  with  any  foreign  port  or  place  wheresoever,  or  with  any  other  trade 
which  might  have  been  lawfully  carried  on  before  the  passage  of  this  title,  under 
the  law  of  nations,  or  under  the  treaties  or  conventions  entered  into  by  the 
United  States,  or  under  the  laws  thereof    *     *     *. — (40  Stat.,  225,  chap.  30.) 

Sec.  8.  The  President  may  employ  such  part  of  the  land  or  naval  forces  of 
the  United  States  as  he  may  deem  necessary  to  carry  out  the  purposes  of  this 
title    *     *     *.— (40  Stat.,  225,  chap.  30.) 

1488 


Espionage  Act.  Ft.  3.  STATUTES  AT  LARGE.  June  15,  1917. 

Title  X. 

COUNTERFEITING    GOVERNMENT    SEAL. 

Section  1.  Whoever  shall  fraudulently  or  wrongfully  affix  or  impress  the 
seal  of  any  executive  department,  or  of  any  bureau,  commission,  or  office  of 
the  United  States,  to  or  upon  any  certificate,  instrument,  commission,  docu- 
ment, or  paper  of  any  description;  or  whoever,  with  knowledge  of  its  fraudu- 
lent character,  shall  with  wrongful  or  fraudulent  intent  use,  buy,  procure,  sell, 
or  transfer  to  another  any  such  certificate,  instrument,  commission,  document, 
or  paper,  to  which  or  upon  which  said  seal  has  been  so  fraudulently  affixed  or 
impressed,  shall  be  fined  not  more  than  $5,000  or  imprisoned  not  more  than 
five  years,  or  both.— (40  Stat.,  227-228,  chap.  30.) 

Sec.  2.  Whoever  shall  falsely  make,  forge,  counterfeit,  mutUate,  or  alter, 
or  cause  or  procure  to  be  made,  forged,  counterfeited,  mutilated,  or  altered,  or 
shall  willingly  assist  in  falsely  making,  forging,  counterfeiting,  mutilating,  or 
altering,  the  seal  of  any  executive  department,  or  any  bureau,  commission,  or 
office  of  the  United  States,  or  whoever  shall  knowingly  use,  affix,  or  impress 
any  such  fraudulently  made,  forged,  counterfeited,  mutilated,  or  altered  seal 
to  or  upon  any  certificate,  instrument,  commission,  document,  or  paper,  of 
any  description,  or  whoever  with  wrongful  or  fraudulent  intent  shall  have  pos- 
session of  any  such  falsely  made,  forged,  counterfeited,  mutilated,  or  altered 
seal,  knowing  the  same  to  have  been  so  falsely  made,  forged,  counterfeited, 
mutilated,  or  altered,  shall  be  fined  not  more  than  S5,000  or  imprisoned  not 
more  than  ten  years,  or  both. 

Sec.  3.  Whoever  shall  falsely  make,  forge,  counterfeit,  alter,  or  tamper  with 
any  naval,  military,  or  official  pass  or  permit,  issued  by  or  under  the  authority 
of  the  United  States,  or  with  wrongfid  or  fraudulent  intent  shall  use  or  have 
in  his  possession  any  such  pass  or  permit,  or  shall  personate  or  falsely  represent 
himself  to  be  or  not  to  be  a  person  to  whom  such  pass  or  permit  has  been  duly 
issued,  or  shall  wfilfully  allow  any  other  person  to  have  or  use  any  such  pass  or 
permit,  issued  for  his  use  alone,  shall  be  fined  not  more  than  $2,000  or  impris- 
oned not  more  than  five  years,  or  both     *     *     *. — (40  Stat.,  228,  chap.  30.) 

Title  XII. 

USE    OF    MAILS. 

Section  1.  Every  letter,  writing,  circular,  postal  card,  picture,  print, 
engraving,  photograph,  newspaper,  pamphlet,  book,  or  other  publication, 
matter  or  thing,  of  any  kind,  in  violation  of  any  of  the  provisions  of  this  Act 
is  hereby  declared  to  be  nonmailable  matter  and  shall  not  be  conveyed  in  the 
mails  or  delivered  from  any  post  office  or  by  any  letter  carrier:  Provided,  That 
nothing  in  this  Act  shall  be  so  construed  as  to  authorize  any  person  other  than 
an  employee  of  the  Dead  Letter  Office,  duly  authorized  thereto,  or  other  per- 
son upon  a  search  warrant  authorized  by  law,  to  open  any  letter  not  addressed 
to  himself. 

Sec.  2.  Every  letter,  writing,  circular,  postal  card,  picture,  print,  engrav- 
ing,  photograph,   newspaper,   pamphlet,   book,   or  other  publication,   matter 

1489 


July  2,  1917.  Pi.  S.  STATUTES  AT  LAIiGE. 

or  thing,  of  any  kind,  containing  any  matter  advocating  or  urging  treason, 
insurrection,  or  forcible  resistance  to  any  law  of  the  United  States,  is  hereby 
declared  to  be  nonmailable. — (40  Stat.,  230,  chap.  30.) 

Sec.  3.  Whoever  shall  use  or  attempt  to  use  the  mails  or  Postal  Service 
of  the  United  States  for  the  transmission  of  any  matter  declared  by  this  title 
to  be  nonmailable,  shall  be  fined  not  more  than  $5,000  or  imprisoned  not  more 
than  five  years,  or  ])oth.  Any  person  violating  any  provision  of  this  title 
may  be  tried  and  punished  either  in  the  district  in  which  the  unlawful  matter 
or  publication  was  mailed,  or  to  which  it  was  carried  by  mail  for  delivery 
according  to  the  direction  thereon,  or  in  which  it  was  caused  to  be  delivered 
by  mail  to  the  person  to  whom  it  was  addressed. — (40  Stat.,  230-231,  chap.,  30.) 


By  act  of  May  16,  1918  (,40  Stat.,  554),  a  new 
section,  numbered  4,  was  added  to  this 
title,  denying  the  use  of  the  mails  to  any 
person  \doIating  this  act;  which  said 
amendatory    act  was    repealed    by    Joint 


Resolution   of   March   3,    1921    (41    Stat., 
1360). 
See   Criminal    Code,    March   4,    1909,    section 
189-230  (35  Stat.,  1124-1134),  for  "offenses 
against  the  postal  service." 


Title  XIII. 

GENERAL   PROVISIONS. 

Section  1.  The  term  "United  States"  as  used  in  this  Act  includes  the 
Canal  Zone  and  all  territory  and  waters,  continental  or  insular,  subject  to  the 
jurisdiction  of  the  United  States.     *     *     *     — (40  Stat.,  231,  chap.  30.) 

[1917,  July  2.  Condemnation  of  lands  for  military  purposes.]  That  hereafter 
the  Secretary  of  War  may  cause  proceedings  to  be  instituted  in  the  name  of 
the  United  States,  in  any  court  having  jurisdiction  of  such  proceedings  for  the 
acquirement  by  condemnation  of  any  land,  temporary  use  thereof  or  other 
interest  therein,  or  right  pertaining  thereto,  needed  for  the  site,  location, 
construction,  or  prosecution  of  works  for  fortifications,  coast  defenses,  military 
training  camps,  and  for  the  construction  and  operation  of  plants  for  the  pro- 
duction of  nitrate  and  other  compounds  and  the  manufacture  of  explosives 
and  other  munitions  of  war  and  for  the  development  and  transmission  of 
power  for  the  operations  of  such  plants;  such  proceedings  to  be  prosecuted  in 
accordance  with  the  laws  relating  to  suits  for  the  condemnation  of  property 
of  the  States  wherein  the  proceedings  may  be  instituted :  Provided,  That  wheii 
the  owner  of  such  land,  interest,  or  rights  pertaining  thereto  shall  fix  a  price 
for  the  same,  which  in  the  opinion  of  the  Secretary  of  War  shall  be  reason- 
able, he  may  purchase  or  enter  into  a  contract  for  the  use  of  the  same  at  such 
price  without  further  delay:  Provided  further,  That  the  Secretary  of  War  is 
hereby  authorized  to  accept  on  behalf  of  the  United  States  donations  of  land 
and  the  interest  and  rights  pertaining  thereto  required  for  the  above-men- 
tioned purposes:  And  provided  further,  That  when  such  property  is  acquired 
in  time  of  war,  or  the  imminence  thereof,  upon  the  filing  of  the  petition  for 
the  condemnation  of  any  land,  temporary  use  thereof  or  other  interest  therein 
or  right  pertaining  thereto  to  be  acquired  for  any  of  the  purposes  aforesaid, 
immediate  possession  thereof  may  be  taken  to  the  extent  of  the  interest  to 
be  acquired  and  the  lands  may  be  occupied  and  used  for  military  purposes, 
and  the  provision  of  section  three  hundred  and  fifty-five  of  the  Revised  Statutes, 
providing  that  no  public  money  shall  be  expended  upon  such  land  until  the 

1490 


PL  3.  STATUTES  AT  LARGE.  Oct.  6,  1917. 

written  opinion  of  the  Attorney  General  shall  be  had  in  favor  of  the  validity 
of  the  title,  nor  until  the  consent  of  the  legislature  of  the  State  in  which  the 
land  is  located  has  been  given,  shall  be,  and  the  same  are  hereby,  suspended 
during  the  period  of  the  existing  emergency. — (40  Stat.,  241,  chap.  35;  40  Stat., 
518-519,  chap.  51.) 


This  act  was  expressly  amended  and  reenacted 
to  read  as  above  by  act  of  April  11^  1918 
(40  Stat.,  518-519);  as  so  amended,  it  was 
extended   to   the   Navy   for  certain   pur- 


poses by  act  of  July  9,    1918   (40   Stat., 
888). 
See  acts  of  August  1,  1888  (25  Stat.,  357),  and 
June  3,  1916,  section  124  (39  Stat.,  215). 


[1917,  July  9.  Public  Health  Service,  subject  to  Navy  laws,  etc.]  That 
when  officers  of  the  United  States  Public  Health  Service  are  serving  on  Coast 
Guard  vessels  in  time  of  war,  or  are  detailed  in  time  of  war  for  duty  with  the 
Army  or  Navy  in  accordance  with  law,  they  shall  be  entitled  to  pensions  for 
themselves  and  widows  and  children,  if  any,  as  are  now  provided  for  officers 
of  corresponding  grade  and'  length  of  service  of  the  Coast  Guard,  Army  or 
Navy,  as  the  case  may  be,  and  shall  be  subject  to  the  laws  prescribed  for  the 
government  of  the  service  to  which  they  are  respectively  detailed. —  (40  Stat., 
242,  chap.  37,  Pub.  Res.  No.  9.) 
See  acts  of  July  1,  1902,  section  4  (32  Stat.,  and  October  6,  1917  (40  Stat.,  393);  and 


713),  February  3,  1905  (33  Stat.,  650-651), 


see  note  to  section  1368,  Revised  Statutes. 


[1917,  Oct.  6,  sec.  6.  Transfer  of  employees  from  executive  departments 
to  independent  establishments,  etc.]  That  section  five  of  the  Act  of  June 
twenty-second,  nineteen  hundi-ed  and  six,  prohibiting  the  transfer  of  employees 
from  one  executive  department  to  another,  shall  apply  with  equal  force  and 
effect  to  the  transfer  of  employees  from  executive  departments  to  mdependent 
establishments  and  vice  versa  and  to  the  transfer  of  employees  from  one  inde- 
pendent establishment  to  another:  Provided,  That  the  United  States  Shipping 
Board  Emergency  Fleet  Corporation  shall  be  considered  a  Government  estab- 
lishment for  the  purposes  of  this  section. — (40  Stat.,  383,  chap.  79.) 


See  act  of  June  22, 1906,  section  5  (34  Stat.,  449) 
act  of  August  26,  1912,  section  7  (37  Stat. 
626),  as  amended  and  reenacted  by  act  of 
March  4,  1913,  section  4  (37  Stat.,  790) 


act  of  March  28,  1918,  section  2  (40  Stat., 
498),  and  notes  to  sections  169  and  416, 
Revised  Statutes;  see  also  next  section  of 
this  act,  set  forth  below. 


[1917,  Oct.  6,  sec.  7.  Lump-sum  employees;  restrictions  on  pay  of.]  That 
no  civil  employee  in  any  of  the  executive  departments  or  other  Government 
estabhshments,  or  who  has  been  employed  therein  within  the  period  of  one  year 
next  preceding  his  proposed  employment  in  any  other  executive  department 
or  other  Government  establishment,  shall  be  employed  hereafter  and  paid  from 
a  lump-sum  appropriation  in  any  other  executive  department  or  other  Gov- 
ernment establishment  at  an  increased  rate  of  compensation.  And  no  civil 
employee  in  any  of  the  executive  departments  or  other  Government  establish- 
ments or  who  has  been  employed  therein  within  the  period  of  one  year  next 
preceding  his  proposed  employment  in  any  other  executive  department  or 
other  Government  establishment  and  who  may  be  employed  in  another 
executive,  department  or  other  Government  estabhshment  shall  be  granted 
an  increase  in  compensation  within  the  period  of  one  year  following  such 
reemployment:  Provided,  That  the  United  States  Shipping  Board  Emergency 
Fleet  Corporation  shall  be  considered  a  Government  establishment  for  the 

1491 


Oct.  6,  1917.  PL  S.  STATUTES  AT  LARGE. 

purposes  of  this  section:  Provided  further,  That  this  section  shall  not  be  con- 
strued to  repeal  section  five  of  the  Act  of  June  twenty-second,  nineteen  hundred 
and  six,  which  prohibits  the  transfer  of  employees  from  one  department  to 
another.— (40  Stat.,  383-384,  chap.  79.) 

See   precedins;  section   of  this  act,   set  forth 

anove,  and  references  thereunder. 
By  act  of  March  28,  1918,  section  2  (40  Stat., 


498),  this  section  was  extended  to  include 
all  branches  of  the  government  of  the 
District  of  Columbia. 


[1917.  Oct.  6.  Explosives,  manufacture  and  possession  in  time  of  war 
restricted ;  use  of  public  officers  to  enforce.]  Sec.  2.  *  *  *  That  nothing 
herein  contained  shall  be  construed  to  prevent  the  manufacture,  under  the 
authority  of  the  Government,  of  explosives  for,  their  sale  to  or  their  possession 
by,  the  military  or  naval  service  of  the  United  States  of  America.  *  *  *. — 
(40  Stat.,  386,  chap.  83.) 

Sec.  21.  That  the  Director  of  the  Bureau  of  MLues,  with  the  approval  of 
the  President,  is  hereby  authorized  to  utilize  such  agents,  agencies,  and  all 
officers  of  the  United  States  and  of  the  several  States,  Territories,  dependencies, 
and  municipalities  thereof,  and  the  District  of  Columbia,  in  the  execution  of 
this  Act,  and  all  agents,  agencies,  and  all  officers  of  the  United  States  and  of 
the  several  States  and  Territories,  dependencies,  and  municipalities  thereof, 
and  the  District  of  Columbia,  shall  hereby  have  full  authority  for  all  acts 
done  by  them  in  the  execution  of  this  Act  when  acting  by  the  direction  of  the 
Bureau  of  Mines.— (40  Stat.,  389,  chap.  83.) 

[1917,  Oct.  6.  Reimbursement  of  naval  personnel  for  lost  or  damaged 
property].  That  the  PajTnaster  General  of  the  Navy  be,  and  he  is  hereby, 
authorized  and  directed  to  reimburse  such  officers,  enlisted  men,  and  others  in 
the  navel  service  of  the  United  States  as  may  have  suffered,  or  may  hereafter 
suffer,  loss  or  destruction  of  or  damage  to  their  personal  property  and  effects 
in  the  naval  service  due  to  the  operations  of  war  or  by  shipwTeck  or  other  marine 
disaster  when  such  loss,  destruction,  or  damage  was  without  fault  or  negligence 
on  the  part  of  the  claimant,  or  where  the  private  property  so  lost,  destroyed, 
or  damaged  was  shipped  on  board  an  unseaworthy  vessel  by  order  of  an  officer 
authorized  to  give  such  order  or  direct  such  shipment,  or  where  it  appears  that 
the  loss,  destruction,  or  damage  of  or  to  the  private  property  of  the  claimant 
was  in  consequence  of  his  having  given  his  attention  to  the  saving  of  the  lives 
of  others  or  of  property  belonging  to  the  United  States  which  was  in  danger 
at  the  same  time  and  under  similar  circumstances.  And  the  liability  of  the 
Government  under  this  Act  shall  be  limited  to  such  articles  of  personal  property 
as  the  Chief  of  the  Bureau  of  Navigation  of  the  Navy  Department,  with  refer- 
ence to  the  personnel  of  the  Navy,  or  the  major  general  commandant  of  the 
Marine  Corps,  with  reference  to  the  persormel  of  that  corps,  in  his  discretion, 
shall  decide  to  be  reasonable,  useful,  and  proper  for  such  officer,  enlisted  man, 
or  other  person  while  engaged  in  the  public  service  in  line  of  duty,  and  the 
certificate  of  said  chief  of  bureau  or  major  general  commandant,  as  the  case 
may  be,  shall  be  sufficient  voucher  for  and  shall  be  final  as  to  all  matters 
necessary  to  the  establishment  and  payment  or  settlement  of  any  claim  filed 
hereunder;  and  the  action  of  the  said  chief  of  bureau  or  major  general  com- 
mandant, as  the  case  may  be,  upon  all  claims  arising  under  this  Act  shall  be 
final,  and  no  right  to  prosecute  a  claim  or  action  in  the  Court  of  Claims  or  in 

1492 


PL  3.  STATUTES  AT  LARGE.  Oct.  6,  1917. 

any  other  court  of  the  United  States,  or  before  any  accountmg  officer  of  the 
United  States,  or  elsewhere,  except  as  herein  provided,  shall  accrue  to  any 
person  by  virtue  of  this  Act:  Provided,  That  the  liability  of  the  Government 
under  this  Act  shall  be  limited  to  such  articles  of  personal  property  as  are  re- 
quired by  the  United  States  Naval  Kegulations  and  in  force  at  the  time  of  loss 
or  destruction  for  such  officers,  petty  officers,  seamen,  or  others  engaged  in  the 
public  service  in  the  line  of  duty :  Provided  further,  That  with  reference  to  claims 
of  persons  in  the  Marine  Corps  filed  under  the  terms  of  this  Act  the  paymaster 
of  the  Marine  Corps  shall  make  the  reimbursement  in  money,  and  the  quarter- 
master of  the  Marine  Corps  shall  make  the  reimbursement  in  kind  herein 
provided  for :  And  provided  further,  That  all  claims  now  existing  under  this 
Act  shall  be  presented  within  two  years  from  the  passage  hereof  and  not 
thereafter;  and  all  such  claims  hereafter  arising  shall  be  presented  within  two 
years  from  the  occurrence  of  the  loss,  destruction,  or  damage:  And  provided 
further,  That  the  term  "in  the  naval  service,"  as  herein  employed,  shall  be 
held  to  include  service  performed  on  board  any  vessel,  whether  of  the  Navy 
or  not,  provided  the  claimant  is  serving  on  such  vessel  pursuant  to  the  orders 
of  duly  constituted  naval  authority:  And  provided  further,  That  all  claimants 
under  this  Act  shall  be  required  to  submit  their  claims  in  writing  and  under  oath 
to  the  said  Chief  of  the  Bureau  of  Navigation  or  major  general  commandant, 
as  the  case  may  be:  And  provided  further,  That  claims  arising  in  the  manner 
indicated  in  this  Act  and  which  have  been  settled  under  the  terms  of  previously 
existing  law  shall  be  regarded  as  finally  determined  and  no  other  or  further 
right  of  recovery  under  the  provisions  hereof  shall  accrue  to  persons  who  have 
submitted  such  claims  as  aforesaid :  And  provided  further.  That  sections  two 
hundred  and  eighty-eight,  two  hundred  and  eighty-nine,  and  two  hundred  and 
ninety.  Revised  Statutes,  and  the  Act  of  March  second,  eighteen  hundred 
and  ninety-five  (Twenty-eighth  Statutes,  page  nine  hundred  and  sixty-two), 
are  hereby  repealed:  And  provided  further,  That  reimbursement  for  loss, 
destruction,  or  damage  sustained  and  determined  as  herein  provided  shall  be 
made  in  kind  for  such  articles  as  are  customarily  issued  to  the  service  and  shall 
be  made  in  money  for  other  articles  at  the  valuation  thereof  at  the  time  of  their 
loss,  destruction,  or  damage :  And  provided  further,  That  in  cases  involving 
persons  in  the  Navy  reimbursement  in  money  shall  be  made  from  the  appropria- 
tion "Pay  of  the  Navy,"  and  reimbursement  in  kind  shall  be  made  from  the 
appropriation  "Outfits  on  first  enlistment,"  and  in  cases  involving  persons 
in  the  Marine  Corps  reimbursement  in  money  shall  be  made  from  the  appro- 
priation "Pay,  Marine  Corps,"  and  reimbursement  in  kind  shall  be  made  from 
the  appropriation  "Clothing,  Marine  Corps,"  respectively,  current  at  the  time 
the  claim  covering  such  loss,  damage,  or  destruction  is  paid:  And  provided 
further,  That  the  provisions  of  this  Act  shall  apply  to  the  personnel  of  the 
Coast  Guard  in  like  manner  as  to  the  personnel  of  the  Navy,  whether  the  Coast 
Guard  is  operating  under  the  Treasury  Department  or  operating  as  a  part  of 
the  Navy,  and  all  of  the  duties,  which,  under  this  Act,  devolve  upon  the  major 
general  commandant  of  the  Marine  Corps  with  reference  to  the  personnel  of 
that  corps,  shall  devolve  upon  the  captain  commandant  of  the  Coast  Guard, 
and  in  cases  involving  persons  in  the  Coast  Guard  reimbursement  in  money 

1493 


Oct.  6,  1917.  PL  S.  STATUTES  AT  LARGE. 

shall  be  made  by  a  disbursing  ofTicer  of  the  Coast  Guard  from  the  appropriation 
■'Coast  Guard"  and  reimbursement  in  kind  shall  be  made  by  the  captain 
commandant  from  the  appropriation  "Coast  Guard." — (40  Stat.,  389-391, 
chap.  85.) 

See  notes  to  sections  288-290,  and  3689,  Revised  Statutes. 

[1917,  Oct.  6.  Officers  of  auxiliary  naval  forces  eligible  for  court-martial 
duty.]  That  when  actively  serving  under  the  Navy  Department  in  time  of 
war  or  during  the  existence  of  an  emergency,  pursuant  to  law,  as  a  part  of  the 
naval  forces  of  the  United  States,  commissioned  officers  of  the  Naval  Reserve 
Force,  Marine  Corps  Reserve,  National  Naval  Volunteers,  Naval  Militia,  Coast 
Guard,  Lighthouse  Service,  Coast  and  Geodetic  Survey,  and  Public  Health 
Service  are  hereby  empowered  to  serve  on  naval  courts-martial  and  deck  courts 
under  such  regulations  necessary  for  the  proper  administration  of  justice  and  in 
the  interests  of  the  services  involved,  as  may  be  prescribed  by  the  Secretary  of 
the  Navy.     *     *     * 

And  provided  further,  That  any  Act  or  parts  of  Acts  in  conflict  with  the 
provisions  hereof  are  hereby  repealed. — (40  Stat.,  393-394,  chap.  93.) 

All  laws  relating  to  the  Naval  Militia  and  the 
National  Naval  Volunteers  were  repealed 
by  act  of  July  1,  1918  (40  Stat.,  708);  some 
proA-isions  of  law  relating  to  the  Naval 
Militia  were  revived,  until  June  30,  1922, 
by  act  of  June  4,  1920  (41  Stat.,  817). 


The  omitted  portions  of  this  act  specifically  re- 
pealed certain  prior  laws  relating  to  the 
Naval  Militia  and  National  Naval  Volun- 
teers. 

See  note  to  section  1363,  Revised  Statutes,  and 
laws  there  cited. 


[1917,  Oct.  6.  Publication  of  inventions  in  time  of  war  restricted;  use  of  by 
Government.]  That  whenever  during  a  time  when  the  United  States  is  at  war 
the  publication  of  an  invention  by  the  granting  of  a  patent  might,  in  the  opinion 
of  the  Commissioner  of  Patents,  be  detrimental  to  the  public  safety  or  defense 
or  might  assist  the  enemy  or  endanger  the  successful  prosecution  of  the  war  he 
may  order  that  the  invention  be  kept  secret  and  withhold  the  grant  of  a  patent 
until  the  termination  of  the  war:  Provided,  That  the  invention  disclosed  in  the 
application  for  said  patent  may  be  held  abandoned  upon  it  being  established 
before  or  by  the  commissioner  that  in  violation  of  said  order  said  invention  has 
been  published  or  that  an  application  for  a  patent  therefor  has  been  filed  in  a 
foreign  country  by  the  inventor  or  his  assigns  or  legal  representatives,  without 
the  consent  or  approval  of  the  Commissioner  of  Patents,  or  under  a  license  of 
the  Secretary  of  Commerce  as  provided  by  law. 

When  an  applicant  whose  patent  is  withheld  as  herein  provided  and  who 
faithfully  obeys  the  order  of  the  Commissioner  of  Patents  above  referred  to 
shall  tender  his  invention  to  the  Government  of  the  United  States  for  its  use, 
he  shall,  if  and  when  he  ultimately  received  a  patent,  have  the  right  to  sue  for 
compensation  in  the  Court  of  Claims,  such  right  to  compensation  to  begin  from 
the  date  of  the  use  of  the  invention  by  the  Government. — (40  Stat.,  394-395, 
chap.  95.) 

See  section  4894,  Revised  Statutes,  and  refer-  "Trading  with  the  enemy  Act"  of  October 

ences  thereunder.  6,  1917,  section  10  (i)  (40  Stat.,  422). 

Similar    provisions    were    contained    In    the 

[1917,  Oct.  6.  Ratings  and  pay  of  enlisted  men  in  the  Navy.]  That  the 
ratings  of  engineman,  first  class,  engineman,  second  class;  blacksmith,  first 

1494 


War  Risk  Act.  Pt.  3.  STATUTES  AT  LARGE.  Oct.  6,  1917. 

class,  blacksmith,  second  class;  coppersmith,  first  class,  coppersmith,  second 
class;  pattern  maker,  first  class,  pattern  maker,  second  class;  molder,  first  class, 
molder,  second  class ;  chief  special  mechanic  and  special  mechanic,  first  class,  be, 
and  they  are  hereby,  established  in  the  artificer  branch  of  the  Navy  with  the 
following  rates  of  base  pay  per  month:  Engineman,  first  class,  S45;  engineman, 
second  class,  $40;  blacksmith,  first  class,  $65;  blacksmith,  second  class,  $50; 
coppersmith,  first  class,  $65;  coppersmith,  second  class,  $50;  pattern  maker,  first 
class,  $65;  pattern  maker,  second  class,  $50;  molder,  first  class,  $65;  molder, 
second  class,  $50;  chief  special  mechanic,  $127;  special  mechanic,  first  class,  $80: 
Provided,  That  the  base  pay  of  machinists'  mates,  second  class,  and  water  tenders 
be,  and  it  is  hereby,  increased  from  $40  to  $45  per  month:  Provided  further, 
That  all  the  aforesaid  rates  of  pay  shall  be  subject  to  such  increases  of  pay  and 
allowances  as  are,  or  may  hereafter  be,  authorized  by  law  for  enlisted  men  of 
the  Nary:  And  provided  further ,  That  appointments  or  enlistments  in  the  said 
ratings  may  be  made  from  enlisted  men  in  the  Navy  or  from  civil  life,  respec- 
tively, and  the  qualifications  of  candidates  for  any  of  said  ratings  shall  be  de- 
termined in  accordance  with  such  regulations  as  the  Secretary  of  the  Navy  may 
prescribe.— (40  Stat.,  397,  chap.  103.) 

See  note  to  section  1569,  Re\ised  Statutes,  for  later  laws  as  to  the  ratings    and  pay  of 
enlisted  men. 

[1917,  Oct.  6.  War  Risk  Insurance;  allotments;  compensation  for  death  or 
disability;  insurance.]  That  the  first  section  of  the  Act  entitled  ''An  Act  to 
authorize  the  establisliment  of  a  Bureau  of  War  Risk  Insurance  in  the  Treasury 
Department,"  approved  September  second,  nineteen  hundred  and  fourteen.,  as 
amended,  is  hereby  amended  to  read  as  follows: 

"Article  I. 

"Section  1.  That  there  is  established  in  the  Treasury  Department  a 
Bureau  to  be  known  as  the  Bureau  of  War  Risk  Insurance  *  *  *." — (40 
Stat.,  398,  chap.  105.) 

Sec.  2.  That  such  Act  of  September  second,  nineteen  hundred  and  four- 
teen, as  amended,  is  hereby  amended  by  adding  new  sections,  as  follows :  *     *     * 

"Sec.  13.  [Powers  of  director.]  That  the  director,  subject  to  the 
general  direction  of  the  Secretary  of  the  Treasury,  shall  administer,  execute,  and 
enforce  the  provisions  of  this  Act,  and  for  that  purpose  have  full  power  and 
authority  to  make  rules  and  regulations  not  inconsistent  with  the  provisions 
of  this  Act,  necessary  or  appropriate  to  carry  out  its  purposes,  and  shall  decide 
all  questions  arising  under  the  Act,  except  as  otherwise  provided  in  section 
five     *     *     *.— (40  Stat.,  399,  chap.  105;  40  Stat.,  555,  chap.  77.) 

Section  13  is  reproduced  above  as  reenacted  by  act  of  May  20,  1918  (40  Stat.,  555). 
See  note  to  section  471,  Revised  Statutes. 

"Sec.  14.  [Assistance  of  navy  surgeons.]  *  *  *  ^he  bureau  shall, 
by  arrangement  with  the  Secretary  of  War  and  the  Secretary  of  the  Navy,  respec- 
tively, make  use  of  the  services  of  surgeons  in  the  Army  and  Navy.  *  *  *." — 
(40  Stat.,  399,  chap.  105.) 

"Sec.  15.  [Reports  by  executive  departments.]  *  *  *  The  director 
may  obtain  such  information  and  such  reports  from  officials  and  employees  of 

1495 


Oct.  6,  1917 


Pi. 


STATUTES  AT  LARGE. 


War  Risk  Act. 


the  departments  of  the  Government  of  the  United  States  and  of  the  States  as 
may  be  agreed  upon  by  the  heads  of  the  respective  departments.  *  *  *." — 
(40  Stat.,  399,  chap.  105.) 

"Sec.  22.  [Definitions.]  *  *  *  In  Articles  11,  III,  and  IX  of  this  Act 
unless  the  context  otherwise  requires — *     *     * 

'' (G)  The  term  'commissioned  officer'  includes  a  warrant  officer,  but 
includes  onl}^  an  officer  in  active  service  in  the  military  or  naval  forces  of  the 
United  States. 

"  (7)  The  terms  'man'  and  'enlisted  man'  mean  a  person,  whether  male  or 
female,  and  whether  enlisted,  enrolled,  or  di'afted  into  active  service  in  the 
military  or  naval  forces  of  the  United  States,  and  include  noncommissioned 
and  petty  officers,  and  members  of  training  camps  authorized  by  law. 

"(8)  The  term  'enlistment'  includes  voluntary  enlistment,  draft,  and 
enrollment  in  active  service  in  the  military  or  naval  forces  of  the  United  States. 

"  (10)  The  term  'injury'  includes  disease. 

"(11)  The  term  'pay'  means  the  pay  for  service  in  the  United  States 
according  to  grade  and  length  of  service,  excluding  all  allowances. 

"  (12)  The. term  'military  or  naval  forces'  means  the  Army,  the  Navy,  the 
Marine  Corps,  the  Coast  Guard,  the  Naval  Reserves,  the  National  Naval  Vol- 
unteers, and  any  other  branch  of  the  United  States  service  while  serving  pur- 
suant to  law  with  the  Army  or  the  Navy." — (40  Stat.,  401-402,  chap.  105.) 

"Sec.  28.  [Benefits  not  assignable,  nor  subject  to  debts,  etc.; 
EXCEPTION.]  That  the  allotments  and  family  allowances,  compensation,  and 
insurance  payable  under  Articles  II,  III,  and  IV,  respectively,  shall  not  be 
assignable;  shall  not  be  subject  to  the  claims  of  creditors  of  any  person  to 
whom  an  award  is  made  under  Articles  II,  III,  or  IV;  and  shall  be  exempt  from 
all  taxation :  Provided,  That  such  allotments  and  family  allowances,  compensa- 
tion, insurance  shall  be  subject  to  any  claims  which  the  United  States  may 
have,  under  Articles  II,  III,  and  IV,  against  the  person  on  whose  account  the 
allotments  and  family  allowances,  compensation,  or  insurance  is  payable." — 
(40  Stat.,  402,  chap.  105;  40  Stat.,  609,  chap.  104.) 


This  section  was  added,  by  act  of  Jvme  25,  1918 
(40  Stat.,  609),  to  the  act  of  September  2, 
1914,  as  amended  by  act  of  October  6,  1917 
(40  Stat.,  402). 

By  act  of  December  24, 1919,  section  G  (41  Stat., 
372),  it  was  provided  "that  the  provisions 
of  section  28  of  the  war  Risk  Insurance  Act 


K  I 


shall  not  be  construed  to  prohibit  the 
assic:nment  by  any  person  to  whom  con- 
verted insurance  shall  be  payable  under 
Article  IV  of  such  Act  of  his  interest  in 
such  insurance  to  any  other  member  of  the 
permitted  class  of  beneficiaiies." 


Sec.  29.  [Discharge  or  dismissal  for  cause  bar  to  benefits.]  That 
the  discharge  or  dismissal  of  any  person  from  the  military  or  naval  forces  on 
the  ground  that  he  is  an  enemy  alien,  conscientious  objecter,  or  a  desertor,  or 
as  guilty  of  mutiny,  treason,  spying,  or  any  offense  involving  moral  turpitude, 
or  willful  and  persistent  misconduct  shall  terminate  any  insurance  granted  on 
the  life  of  such  person  under  the  provisions  of  Article  IV,  and  shall  bar  all 
rights  to  any  compensation  under  Article  III  or  any  insurance  under  Article 
IV."— (40  Stat.,  402,  chap.  105;  40  Stat.,  609-610.  chap.  104.) 

This  section  was  added,  by  act  of  June  25,  1918  (40  Stat.,  609),  to  the  act  of  September  2,  1914 
as  amended  by  act  of  October  6,  1917  (40  Stat.,  402). 


1496 


War  Risk  Act.  Ft.  3.  STATUTES  AT  LARGE.  Oct.  6,  1917. 

Article  IT. 

ALLOTMENTS    AND    FAMILY    ALLOWANCES. 

Sec.  200.  [Persons  included  by  article.]     That  the  provisions  of  this 

article  shall  apply  to  all  enlisted  men  in  the  military  or  naval  forces  of  the 

United  States,  except  the  Philippine  Scouts,  the  insular  force  of  the  Navy,  and 

the  Samoan  native  guard  and  band  of  the  Navy. —  (40  Stat.,  402,  chap.  105;  40 

Stat.,  610,  chap.  104.) 

This  section  of  the  Act  of  October  6,  1917,  was  reenacted  to  read  as  above  by  act  of  June  25, 
1918,  section  3  (40  Stat.,  GIO). 

Sec.  202.  [Voluntary  allotments  of  pay. — That  the  enlisted  man  may 
allot  any  proportion  or  proportions  or  any  fixed  amount  or  amounts  of  his 
monthly  pay  or  of  the  proportion  thereof  remaining  after  the  compulsory 
allotment,  for  such  purposes  and  for  the  benefit  of  such  person  or  persons  as  he 
may  direct,  subject,  however,  to  such  conditions  and  limitations  as  may  be 
prescribed  under  regulations  to  be  made  by  the  Secretary  of  War  and  the  Secre- 
tary of  the  Navy,  respectively. — (40  Stat.,  403,  chap.  105.) 


enlisted  man  reported  as  missins;  in  action 
shall  be  considered  as  occupying  a  pay 
status  until  his  actual  status  has  been  de- 
termined by  proper  official  authority  of 
the  department  in  which  the  man  served 
or  is  serving:  Provided,  That  payments 
authorized  hereunder  shall  not  continue 
for  more  than  one  year." 


The  pro\T.sions  of  this  act,  section  201,  as  to 

"compulsory  allotments,"  are  omitted  as 

temporary.     See  also  section  211,  below, 

as  to  voluntary  allotments. 
By  act  of  November  4,  1918  (40  Stat.,  1024),  it 

was  pro\ided  that  "for  the  purpose  of  the 

pajTuent  of  allotments  made  by  the  en- 
listed men    *    *    *    under  Article  II  of 

the  Act  of  October  6,  1917,  as  amended,  an 

Sec.  203.  [Compulsory  deposit  of  unallotted  pay.]  That  in  case  one- 
half  of  an  enlisted  man's  monthly  pay  is  not  allotted,  regulations  to  be  made  by 
the  Secretary  of  War  and  the  Secretary  of  the  Navy,  respectively,  may  require, 
under  circumstances  and  conditions  as  may  be  prescribed  in  such  regulations, 
that  an}"  proportion  of  such  one-half  pay  as  is  not  allotted  shall  be  deposited  to 
his  credit,  to  be  held  during  such  period  of  his  service  as  may  be  prescribed. 
Such  deposit  shall  bear  interest  at  the  same  rate  as  United  States  bonds  bear 
for  the  same  period,  and,  when  payable,  shall  be  paid  principal  and  interest  to 
the  enlisted  man,  if  living,  otherwise  to  any  beneficiary  or  beneficiaries  he  may 
have  designated,  or  if  there  be  no  such  beneficiary,  then  to  the  person  or  persons 
who,  under  the  laws  of  the  State  of  his  residence,  would  be  entitled  to  his  per- 
sonal property  in  case  of  intestacy. — (40  Stat.,  403,  chap.  105;  40  Stat.,  610, 
chap.  104.) 

This  section  of  the  act  of  October  6,  1917,  was  reenacted  to  read  as  above  by  act  of  June  25, 
1918,  section  5  (40  Stat.,  610). 

Sec.  211.  [All  allotments  to  be  voluntary;  payment  by  war  risk 
bureau  discontinued.]  That  all  family  allowances  and  allotments  payable 
by  the  Bureau  of  War  Risk  Insurance  under  the  authority  of  this  article  shall 
be  discontinued  at  the  end  of  the  fourth  calendar  month  after  the  termination 
of  the  present  war  emergency,  as  declared  by  proclamation  of  the  President  of 
the  United  States,  and  thereafter  all  allotments  of  pay  shall  be  voluntary  and 
shall  be  made  under  such  regulations  as  may  be  prescribed  by  the  Secretary  of 
War  and  the  Secretary  of  the  Navy,  respectively. — (40  Stat.,  405,  chap.  105; 
41  Stat.,  372,  chap.   16.) 

1497 


Oct.  6,  1917. 


PL  3.  STATUTES  AT  LARGE. 


War  Risk  Act. 


This  section  was  added  to  the  act  of  October  6, 
1917  (40  Stat.,  405),  by  act  of  December  24, 
1919,  section  9  (41  Stat.,  372). 

By  section  209  of  this  act,  pajTnents  of  allot- 
ments were  to  be  made  through  the  Bureau 


of  War  Risk  Insurance. 
1556,  1575,  and  1576, 
and  notes  thereto. 


See  sections  1430, 
Revised   Statutes, 


Article  III. 

COMPENSATION  FOR  DEATH  OR  DISABILITY. 

Sec.  300.  [Cases  in  which  compensation  allowed.]  That  for  death 
or  disability  resulting  from  personal  injury  suffered  or  disease  contracted  in  the 
line  of  duty,  by  any  commissioned  officer  or  enlisted  man,  or  by  any  member  of 
the  Army  Nurse  Corps  (female)  or  of  the  Navy  Nurse  Corps  (female)  when 
employed  in  the  active  service  under  the  War  Department  or  Navy  Department, 
the  United  States  shall  pay  compensation  as  hereinafter  provided;  but  no  com- 
pensation shall  be  paid  if  the  injury  or  disease  has  been  caused  by  his  own  will- 
ful misconduct:  Provided,  That  for  the  purposes  of  this  section  said  officer, 
enlisted  man,  or  other  member  shall  be  held  and  taken  to  have  been  in  sound 
condition  when  examined,  accepted,  and  enrolled  for  service:  Provided  further, 
That  this  section,  as  amended,  shall  be  deemed  to  become  effective  as  of  April 
6,  1917.— (40  Stat.,  405.  chap.  105;  41  Stat.,  373,  chap.  16.) 

This  section  of  the  act  of  October  6,  1917,  was 
reenacted  to  read  as  above  by  act  of  Decem- 
ber 24,  1919,  section  10a  (41  Stat.,  373); 
it  had  pre\dously  been  reenacted  by  act  of 
June  25,  1918,  section  10  (40  Stat.,  611). 


Termination  of  war  does  not  affect  the 
compensation  provisions  of  this  act,  which 
continue  in  effect.     (22  Op.  Atty.  Gen.,  538.) 


Sec.  301.  [Burial  expenses.]  *  *  *  if  death  occur  or  shall  have 
occurred  subsequent  to  April  6,  1917,  and  before  discharge  or  resignation  from 
service,  the  United  States  shall  pay  for  burial  expenses  and  the  return  of  body 
to  his  home  a  sum  not  to  exceed  $100,  as  may  be  fixed  by  regulations.  *  *  * — 
(40  Stat.,  405,  chap.  105;  41  Stat.,  372,  chap.  16.) 


10  (41  Stat.,  372);  it  had  previously  been 
reenacted  by  act  of  June  25,  1918  (40  Stat., 
612). 


The  above  paragraph,  which  is  a  part  of  sub- 
division (g),  section  301,  act  of  October  6, 
1917,  was  reenacted  to  read  as  above  set 
forth  by  act  of  December  24,  1919,  section 

Sec.  302.   [Disability  compensation,  treatment,  etc.]     That  if  disa- 
bility results  from  the  injury — 

(1)  If  and  while  the  disability  is  rated  as  total  and  temporary,  the  monthly 
compensation  shall  be  the  following  amounts: 

(a)  If  the  disabled  person  has  neither  wife  nor  child  living,  $80. 

(b)  If  he  has  a  wife  but  no  child  living,  $90. 

(c)  If  he  has  a  wife  and  one  child  living,  $95. 

(d)  If  he  has  a  wife  and  two  or  more  children  living,  $100. 

(e)  If  ho  has  no  wife  but  one  child  living,  $90,  with  $5  for  each  additional 
child. 

(f)  If  he  has  a  mother  or  father,  either  or  both  dependent  on  him  for  sup- 
port, then,  in  addition  to  the  above  amounts,  $10  for  each  parent  so  dependent. 

(2)  If  and  while  the  disability  is  rated  as  partial  and  temporary,  the  monthly 
compensation  shall  be  a  percentage  of  the  compensation  that  would  be  pay- 
able for  his  total  and  temporary  disability,  equal  to  the  degree  of  the  reduction 


1498 


War  Risk  Act.  Pt.  S.  STATUTES  AT  LARGE.  Oct.  6,  1917. 

in  earning  capacity  resulting  from  the  disability,  but  no  compensation  shall  be 
payable  for  a  reduction  in  earning  capacity  rated  at  less  than  10  per  centum. 

(3)  If  and  while  the  disability  is  rated  as  total  and  permanent,  the  rate  of 
compensation  shall  be  $100  per  month:  Provided,  however,  That  the  loss  of  both 
feet,  or  both  hands,  or  the  sight  of  both  eyes,  or  the  loss  of  one  foot  and  one  hand, 
or  one  foot  and  the  sight  of  one  eye,  or  one  hand  and  the  sight  of  one  eye,  or 
becoming  helpless  and  permanently  bedridden,  shall  be  deemed  to  be  total, 
permanent  disability:  Provided,  further.  That  for  double  total,  permanent  disa- 
bility the  rate  of  compensation  shall  be  S200  per  month. 

(4)  If  and  while  the  disability  is  rated  as  partial  and  permanent,  the 
monthly  compensation  shall  be  a  percentage  of  the  compensation  that  would  be 
payable  for  his  total  and  permanent  disability  equal  to  the  degree  of  the  reduc- 
tion in  earning  capacity  resulting  from  the  disability,  but  no  compensation 
shall  be  payable  for  a  reduction  in  earning  capacity  rated  at  less  than  10  per 
centum.     *     *     * 

(5)  If  the  disabled  person  is  so  helpless  as  to  be  in  constant  need  of  a  nurse 
or  attendant,  such  additional  sum  shall  be  paid,  but  not  exceeding  S20  per 
month,  as  the  director  may  deem  reasonable. 

(6)  In  addition  to  the  compensation  above  provided,  the  injured  person 
shall  be  furnished  by  the  United  States  such  reasonable  governmental  medical, 
surgical,  and  hospital  services  and  mth  such  supplies,  including  wheeled  chairs, 
artificial  limbs,  trusses,  and  similar  appliances,  as  the  director  may  determine 
to  be  useful  and  reasonably  necessary,  which  wheeled  chairs,  artificial  limbs, 
trusses,  and  similar  appliances  may  be  procured  by  the  Bureau  of  War  Risk 
Insurance  in  such  manner,  either  by  purchase  or  manufacture,  as  the  director 
may  determine  to  be  advantageous  and  reasonably  necessary:  Provided,  That 
nothing  in  this  Act  shall  be  construed  to  affect  the  necessary  military  control 
over  any  member  of  the  military  or  naval  establishments  before  he  shall  have 
been  discharged  from  the  military  or  naval  service. 

(7)  Where  the  disabled  person  and  his  wife  are  not  living  together,  or 
where  the  children  are  not  in  the  custody  of  the  disabled  person  the  amount  of 
the  compensation  shall  be  apportioned  as  may  be  prescribed  by  regulations. 

(8)  The  term  ''wife"  as  used  in  this  section  shall  include  ''husband"  if 
the  husband  is  dependent  upon  the  mfe  for  support.     *     *     * 

(10)  That  section  302  of  the  War  Risk  Insurance  Act  as  amended  shall  be 
deemed  to  be  in  effect  as  of  April  6,  1917:  Provided,  That  any  person  who  is 
now  receiving  a  gratuity  or  pension  under  existing  law  shall  not  receive  com- 
pensation under  this  Act  unless  he  shall  first  surrender  all  claim  to  such  gra- 
tuity or  pension.— (40  Stat.,  406,  chap.  105;  41  Stat.,  373-374,  chap.  16.) 

This  section  of  the  act  of  October  6,  1917,  was  It  had  previously  been  amended  by  acts  of 

reenacted"toreadasabovebvact  of  Decern-  June  25,  1918  (40  Stat.,  612-613),  and  Au- 

ber  24,  1919,  section  11  (41  Stat.,  373-374).  gust  6,  1919  (41  Stat.,  274). 

Sec.  303.  [Medical  examinations  and  treatment;  refusal  to  sub- 
AUT.]  That  every  person  applying  for  or  in  receipt  of  compensation  for  dis- 
ability under  the  provisions  of  this  article  shall,  as  frequently  and  at  such  times 
and  places  as  may  be  reasonably  required,  submit  himself  to  examination  by  a 
medical  officer  of  the  United  States  or  by  a  duly  qualified  physician  designated 
or  approved  by  the  director.     He  may  have  a  duly  qualified  physician  desig- 

54641°— 22 95  1499 


Oct.  6,  1917.  PI.  3.  STATUTES  AT  LARGE.  War  Risk  Act. 

nated  and  paid  by  him  present  to  participate  in  such  examination.  For  all 
examinations  he  shall,  in  the  discretion  of  the  director,  be  paid  his  reasonable 
traveling  and  other  expenses  and  also  loss  of  wages  incurred  in  order  to  submit 
to  such  examination.  If  he  refuses  to  submit  himself  for,  or  in  any  way  ob- 
structs, any  examination,  his  right  to  claim  compensation  under  this  article 
shall  be  suspended  until  such  refusal  or  obstruction  ceases.  No  compensation 
shall  be  payable  while  such  refusal  or  obstruction  continues,  and  no  compensa- 
tion shall  be  payable  for  the  intervening  period. 

Every  person  in  receipt  of  compensation  for  disability  shall  submit  to  any 
reasonable  medical  or  surgical  treatment  furnished  by  the  bureau  whenever 
requested  by  the  bureau;  and  the  consequences  of  unreasonable  refusal  to 
submit  to  any  such  treatment  shall  not  be  deemed  to  result  from  the  injury 
compensated  for.— (40  Stat.,  406-407,  chap.  105.) 

Sec.  307.  [Death  to  be  officially  recorded.]  That  compensation 
shall  not  be  payable  for  death  in  the  course  of  the  service  until  the  death  be 
ofiicially  recorded  in  the  department  under  which  he  may  be  serving.  No  com- 
pensation shall  be  payable  for  a  period  during  which  the  man  has  been  reported 
''missing"  and  a  family  allowance  has  been  paid  for  him  under  the  provisions 
of  Ai'ticle  II.— (40  Stat.,  407,  chap.  105.) 

See  section  211,  above,  as  to  family  allowance. 

Sec.  308.  [Death  for  crime;  dishonorable  discharge.]  That  no  com- 
pensation shall  be  payable  for  death  inflicted  as  a  lawful  punishment  for  a 
crime  or  military  offense  except  when  inflicted  by  the  enemy.  A  dismissal  or 
dishonorable  or  bad  conduct  discharge  from  the  service  shall  bar  and  terminate 
all  i:ight  to  any  compensation  under  the  provisions  of  this  article. — (40  Stat.,  407, 
chap.  105.) 

See  section  29,  above,  under  Article  I. 

Sec.  312.  [Compensation  excludes  benefits  under  other  laws.] 
That  compensation  under  this  article  sliall  not  be  paid  wliile  the  person  is  in 
receipt  of  service  or  retirement  pay.  The  laws  providing  for  gratuities  or  pay- 
ments in  the  event  of  death  in  the  service  and  existing  pension  laws  shall  not 
be  applicable  after  the  enactment  of  tliis  amendment  to  any  person  in  the 
active  military  t)r  naval  service  on  the  sixth  day  of  October,  nineteen  hundred 
and  seventeen,  or  who  tliereafter  entered  the  active  military  or  naval  service, 
or  to  their  widows,  children,  or  their  dependents,  except  in  so  far  as  rights  under 
any  such  law  have  heretofore  accrued. 

Compensation  because  of  disability  or  death  of  members  of  the  Army 
Nurse  Corps  (female)  or  of  the  Navy  Nurse  Corps  (female)  shall  be  in  lieu  of 
any  compensation  for  such  disability  or  death  under  tlie  Act  entitled  ''An  Act 
to  provide  compensation  for  employees  of  the  United  States  suffering  injuries 
while  in  the  performance  of  their  duties,  and  for  other  purposes,"  approved 
September  seventh,  nineteen  hundred  and  sixteen. — (40  Stat.,  408,  chap.  105; 
40  Stat.,  613,  chap.  104.) 


This  section  of  the  act  of  October  6,  1917,  was 
reenacted  to  read  as  above  by  act  of  June 
25,  1918,  section  17  (40  Stat.,  613).  See 
also  section  302,   paragraph   (10),   above; 


and  see  note  to  act  of  June  4,  1920  (41  Stat., 
824-825),  relating  to  death  gratuities,  and 
note  to  section  4756,  Revised  Statutes, 
relating  to  service  pensions. 


1500 


War  Bisk  Act.  PL  3.  STATUTES  AT  LARGE.  Oct.  6,  1917. 

Article  IV 

INSURANCE. 

Sec.  400.  [Persons  to  whom  applicable;  amount.]  That  in  order  to 
give  to  every  commissioned  officer  and  enlisted  man  and  to  every  member  of  the 
Army  Nurse  Corps  (female)  and  of  the  Navy  Nurse  Corps  (female)  when  em- 
ployed in  active  service  under  the  War  Department  or  Navy  Department 
greater  protection  for  themselves  and  their  dependents  than  is  provided  in 
Ai-ticle  III,  the  United  States,  upon  application  to  the  bureau  and  without 
medical  examination,  shall  grant  insurance  against  the  death  or  total  permanent 
disability  of  any  such  person  in  any  multiple  of  $500,  and  not  less  than  $1,000 
or  more  than  $10,000,  upon  the  payment  of  the  premiums  as  hereinafter  pro- 
vided.—(40  Stat.,  409,  chap.  105.) 

Effect  of  termination  of  the  war. — Any  Any  person  entering  the  active  service  after 

person  entering  the  active  ser\-ice  within  five  the  expiration  of  five  years  fi'om  the  date  of  the 

years  after  the  tennination  of  the  war  may  be  termination  of  the  war  may  not  apply  for  nor 

granted   term  insurance  ]1ro^'iding  he  applies  be  granted  war  risk  insurance.     (32  Op.  Atty. 

for  it  within  120  days  after  entering  such  service.  Gen. ,  538. ) 

But  in  order  to  retain  such  insurance  it  must  See  note  above,  under  section  300  of  this  act 

be  converted  ^vithin  five  years  from  the  date  (40  Stat.,  405). 
of  the  termination  of  the  war.     (32  Op.  Atty. 
Gep.,  538.)                                                                  ! 

Sec.  401.  [Time  for  making  application.]  That  such  insurance  must 
be  applied  for  within  one  hundred  and  twenty  days  after  enlistment  or  after 
entrance  into  or  employment  in  the  active  service  and  before  discharge  or 
resignation,  except  that  those  persons  who  are  in  the  active  war  service  at  the 
time  of  the  publication  of  the  terms  and  conditions  of  such  contract  of  insurance 
may  apply  at  any  time  within  one  hundred  and  twenty  days  thereafter  and 
while  in  such  service  *  *  *.— (40  Stat.,  409,  chap.  105;  41  Stat.,  374-375, 
chap.  16.) 


reenacted  by  act  of  June  25,  1918  (40  Stat., 

614). 


This  section  was  reenacted  to  read  as  above  by 
act  of  December  24,  1919,  section  12  (41 
Stat.,    374-375');  it   had   pre^-iously   been 

[1917,  Oct.  6,  sec.  3.  Rank  of  brigadier  generals.]  That  brigadier  generals 
of  the  Army  shall  hereafter  rank  relatively  with  rear  admirals  of  the  lower  half 
of  the  grade.— (40  Stat.,  411,  chap.  105.) 

See  note  to  section  1466.  Revised  Statutes,  under  '•Relative  rank  of  brigadier  generals  and 
rear  admirals  of  the  lower  half." 

[1917,  Oct.  6,  sec.  10  (i).  Publication  of  inventions  in  time  of  war  restricted ; 
use  of  by  Government.]  Wlienever  the  publication  of  an  invention  by  the 
granting  of  a  patent  may,  in  the  opinion  of  the  President,  be  detrimental  to  the 
public  safety  or  defense,  or  may  assist  the  enemy  or  endanger  the  successful 
prosecution  of  the  war,  he  may  order  that  the  invention  be  kept  secret  and 
withhold  the  grant  of  a  patent  until  the  end  of  the  war:  Provided,  That  the 
invention  disclosed  in  the  application  for  said  patent  may  be  held  abandoned 
upon  it  being  established  before  or  by  the  Commissioner  of  Patents  that,  in 
violation  of  said  order,  said  invention  has  been  published  or  that  an  application 
for  a  patent  therefor  has  been  filed  in  any  other  country,  by  the  inventor  or  his 
assigns  or  legal  representatives,  without  the  consent  or  approval  of  the  com- 
missioner or  imder  a  ficense  of  the  President. 

1501 


Mar.  28,  1918. 


rt.  3.  STATUTES  AT  LARGE. 


When  an  applicant  whose  patent  is  -withheld  as  herein  provided  and  who 
faithfully  obeys  the  order  of  the  President  above  referred  to  shall  tender  his 
invention  to  the  Government  of  the  United  States  for  its  use,  he  shall,  if  he 
ultimately  receives  a  patent,  have  the  right  to  sue  for  compensation  in  the 
Court  of  Claims,  such  right  to  compensation  to  begin  from  the  date  of  the  use 
of  the  invention  by  the  Government. — (40  Stat.,  422,  chap.  106.) 

Similar  provisions  were  contained  in   act  of 

October  6,  1917  MO  Stat.,  394-395,  chap.  95). 
The  above  paragi-a])h  was  part  of  section  10  of 

the  "Trading  with  the  enemy  Act." 


See  section  4894,  Revised  Statutes,  and  refer- 
ences thereunder. 


[1917,  Dec.  20.  Number  of  midshipmen.]  That  hereafter  there  shall  be  al- 
lowed at  the  United  States  Naval  Academy  five  midshipmen  for  each.  Senator, 
Representative,  Delegate  in  Congress,  and  Resident  Commissioner  from  Porto 
Rico,  and  five  for  the  District  of  Columbia,  fifteen  appointed  each  year  at  large, 
and  one  hundred  appointed  annually  from  enlisted  men  of  the  Navy,  and  mem- 
bers of  the  Naval  Reserve  Force  on  active  duty,  as  now  authorized  by  law. 

Sec.  2.  That  all  Acts  or  parts  of  Acts  inconsistent  with  the  provisions  of 
this  Act  are  hereby  repealed.— (40  Stat.,  430,  chap.  5;  41  Stat.,  140,  chap.  9.) 

The   first   section  of   this   act   was   expressly       Qualifications  for  appointment  of  midshipmen 
amended  and  reenacted  to  read  as  above  from  eiilisted  men  of  the  Navy  were  pre- 

set forth  by  act  of  July  11,  1919  (41  Stat.,  scribed  by  act  of  March  4,  1917  (39  Stat  , 

140).  1182). 

See  note  to  section  1513,  Revised  Statutes, 
for  other  laws  relating  to  the  number  of 
midshipmen. 

[1918,  Feb.  11.  Dominican  Republic;  detail  of  naval  personnel  to  assist.] 
That  the  President  of  the  United  States  be,  and  he  is  hereby,  authorized,  in  his 
discretion,  to  detail  to  assist  the  Dominican  Republic,  officers  and  enlisted  men  of 
the  United  States  Navy  and  the  United  States  IVIarine  Corps:  Provided,  That 
officers  and  enlisted  men  so  detailed  be,  and  they  are  hereby,  authorized  to 
accept  from  the  Government  of  the  Dominican  Republic  offices  under  said 
Government  with  compensation  and  emoluments  from  the  said  Dominican 
Republic,  subject  to  the  approval  of  the  President  of  the  United  States:  Pro- 
vided further,  That  while  so  detailed  such  officers  and  enlisted  men  shall  receive, 
in  addition  to  the  compensation  and  emoluments  allowed  them  by  the  Domin- 
ican Republic,  the  pay  and  allowances  of  their  rank  or  rating  in  the  United 
States  Navy  or  United  States  IVfarine  Corps,  as  the  case  may  be,  and  they  shall 
be  entitled  to  the  same  credit,  while  so  serving,  for  longevity,  retirement,  for- 
eign-service pay,  and  for  all  other  purposes  that  they  would  receive  if  they 
were  serving  with  the  United  States  Navy  or  Marine  Corps  in  said  Dominican 
Republic— (40  Stat.,  437,  chap.  15.) 


See  act  of  June  12,  1916  (39  Stat.,  223),  as  to 
Haiti;  joint  resolution  of  October  13,  1914 
(38  Stat.,  780),  as  to  Brazil;  and  act  of  June 


5,  1920  (41  Stat.,  1056),  as  to  all  South 
American  Republics;  see  also  note  to 
Constitution,  Article  I,  section  9,  clause  8. 


[1918,  Mar.  28.  Navy  Building,  supervision  of.]  The  maintenance  and 
protection  of  all  of  the  foregoing  temporary  buildings  when  completed  shall  be 
under  the  supervision  and  direction  of  the  superintendent  of  the  State,  War, 
and  Navy  Department  Buildings. — (40  Stat.,  483,  chap.  28.) 


1502 


PL  3.  STATUTES  AT  LARGE. 


Apr.  10,  1918. 


and  temporary  buildings  for  the  War  De- 
partment. 
See  note  to  section  415,  Re\dsed  Statutes. 


This  paragraph  followed  appropriations  for 
the  erection  of  a  temporary  office  building 
for  the  Navy  Department  at  Seventeenth 
and  B  Streets,  in  Potomac  Park,  D.  C, 

[1918,  Mar.  28,  sec.  2.  Lump-sum  employees;  restriction  on  pay  of.]  That 
all  branches  of  the  government  of  the  District  of  Columbia  shall  be  considered  a 
governmental  establishment  for  the  purposes  of  section  seven  of  the  deficiency 
appropriation  Act  approved  October  sixth,  nineteen  hundred  and  seventeen. — 

(40  Stat.,  498,  chap.  28.) 

See  act  of  October  6,  1917,  section  7  (40  Stat.,  383-384). 

[1918,  Mar.  29.  Deceased  persons,  naval  service;  disposition  of  effects.] 
That  hereafter  all  moneys,  articles  of  value,  papers,  keepsakes,  and  other  similar 
effects  belonging  to  deceased  persons  in  the  naval  service,  not  claimed  by  their 
legal  heirs  or  next  of  kin,  shall  be  deposited  in  safe  custody,  and  if  any  such 
moneys,  articles  of  values,  papers,  keepsakes,  or  other  similar  effects  so  depos- 
ited have  been,  or  shall  hereafter  be,  unclaimed  for  a  period  of  two  years  from 
the  date  of  the  death  of  such  person,  such  articles  and  effects  shall  be  sold  and 
the  proceeds  thereof,  together  with  the  moneys  above  mentioned,  shall  be 
deposited  in  the  Treasury  to  the  credit  of  the  Navy  pension  fund:  Provided, 
That  the  Secretary  of  the  Navy  is  hereby  authorized  and  directed  to  make  dili- 
gent mquiry  in  every  instance  after  the  death  of  such  person  to  ascertain  the 
whereabouts  of  his  heirs  or  next  of  kin,  and  to  prescribe  such  regulations  as 
may  be  necessary  to  carry  out  the  foregoing  provisions:  Provided  further,  That 
claims  may  be  presented  hereunder  at  any  time  within  five  years  after  such 
moneys  or  proceeds  have  been  so  deposited  in  the  Treasury,  and,  when  supported 
by  competent  proof  in  any  case  after  such  deposit  in  the  Treasury,  shall  be  certi- 
fied to  Congress  for  consideration. — (40  Stat.,  499,  chap.  31.) 

See  note  to  section  289,  Revised  Statutes ;  see  also  act  of  May  27,  1908  ( 35  Stat. ,  373). 

[1918,  Apr.  2.  Naval  officers  dropped  for  unauthorized  absence,  etc.]  That 
the  President  is  hereby  authorized  to  drop  from  the  rolls  of  the  Navy  or  Marine 
Corps  any  officer  thereof  who  is  absent  from  duty  without  leave  for  a  period 
of  three  months  or  more,  or  who,  having  been  found  guilty  by  the  civil  authori- 
ties of  any  offense,  is  finally  sentenced  to  confinement  in  a  State  or  Federal 

penitentiary:  Provided,  That  no  officer  so  dropped  shall  be  eligible  for  reap- 
pointment.— (40  Stat.,  501,  chap.  39.) 


See  sections  1229,  1441,  and  1624,  articles  36  and 
37,  Revised  Statutes,  and  notes  thereto; 
see  also  note  to  preamble,  section  1624,  Re- 


^^sed  Statutes,  under  "Persons  discharged 
from  the  Navy." 


[1918,  Apr.  10.  Retired  warrant  and  chief  warrant  officers;  pay  on  active 
duty.]  That  any  retired  chief  warrant  officer  who  has  been  on  active  duty 
since  August  twenty-ninth,  nineteen  hundred  and  sixteen,  or  who  may  hereafter 
perform  active  duty,  and  whose  record  is  creditable,  shall,  during  such  time  as 
he  has  been  or  may  hereafter  be,  on  active  duty,  and  from  the  time  his  service 
on  the  active  list  after  date  of  commission,  plus  his  service  on  active  duty 
while  on  the  rethed  list,  is  equal  to  six  years,  receive  the  pay  and  allowances 
that  are  now,  or  may  hereafter  be,  allowed  a  lieutenant  (junior  grade).  United 


1503 


Apr.  20,  1918.  I'l.  S.  STATUTES  AT  LARGE. 

States  Navy;  aiul  shall,  durinj;  such  tunc  as  he  has  ])een,  or  may  hereafter  be, 

on  active  duty,  and  from  the  time  such  total  service  is  equal  to  twelve  years, 

receive  the  pay  and  allowances  that  are  now,  or  may  hereafter  be,  allowed  a 

lieutenant,  United  States  Navy. 

Sec.  2.  That  any  retired  warrant  officer  who  has  been  on  active  duty  since 

August  twenty-ninth,  nineteen  hundred  and  sixteen,  or  who  may  hereafter 

perform  active  duty,  and  whose  record  is  creditable,  shall,  during  such  time  as 

he  has  been  or  may  hereafter  be  on  active  duty,  and  from  the  time  his  service 

on  the  active  list  after  date  of  warrant,  plus  his  service  on  active  duty  while 

on  the  retired  list,  is  equal  to  twelve  years,  receive  the  pay  and  allowances  that 

are  now  or  may  hereafter  be  allowed  a  lieutenant  (junior  gi-ade),  United  States 

Navy;  and  shall,  during  such  time  as  he  has  been  or  may  hereafter  be  on  active 

dut}',  and  from  the  time  such  total  service  is  equal  to  eighteen  years,  receive 

the  pay  and  allowances  that  are  now  or  may  hereafter  be  allowed  a  lieutenant, 

United  States  Navy.— (40  Stat.,  516,  chap.  49.) 

See  note  to  section  1592,  Re\'ised  Statutes,  as       Other  provisions  allowing  increased  pay  tocom- 
to  pay  of  retired  olHcers  on  active  duty;  missioned  and  warrant  officers  on  active 

and  see  note  to  section  1556,  Revised  Stat-  duty  were  contained  in  act  of  July  1,  1918 

utos,  under  "25.  Warrant  officers,  acting  (40  Stat.,  717). 

warrant  officers,  and  commissioned  warrant 
officers,"  for  decisions  as  to  what  consti- 
tutes a  "creditable"  record. 

[1918,  Apr.  18.  Claims  for  damages  by  American  forces  aboard.]  That 
claims  of  inhabitants  of  France  or  of  any  other  European  country  not  an  enemy 
or  ally  of  an  enemy  for  damages  caused  by  American  military  forces  may  be 
presented  to  any  officer  designated  by  the  President,  and  when  approved  by 
such  an  officer  shall  be  paid  under  regulations  made  by  the  Secretary  of  War. 

Sec.  2.  That  claims  under  this  statute  shall  not  be  approved  unless  they 
would  be  payable  according  to  the  law  or  practice  governing  the  military  forces 
of  the  country  in  which  they  occur. 

Sec.  3.  That  hereafter  appropriations  for  the  incidental  expenses  of  the 
Quartermaster  Corps  shall  be  available  for  paying  the  claims  herein  described. 

Sec.  4.  That  this  statute  does  not  supersede  other  modes  of  indemnity 
now  in  existence  and  does  not  diminish  responsibility  of  any  member  of  the 
military  forces  to  the  person  injured  or  to  the  United  States. — (40  Stat.,  532, 
chap.  57.) 

See  act  of  June  24,  1910  (36  Stat.,  607),  and  references  thereunder. 

[1918,  Apr.  20.  Destruction  of  war  material,  or  war  premises,  etc.]  That 
the  words  "war  material,"  as  used  herein,  shall  include  arms,  armament, 
ammunition,  live-stock,  stores  of  clothing,  food,  foodstuffs,  or  fuel;  and  shall 
also  include  supplies,  munitions,  and  all  other  articles  of  whatever  description, 
and  any  part  or  ingredient  thereof,  intended  for,  adapted  to,  or  suitable  for 
the  use  of  the  United  States,  or  any  associate  nation,  in  connection  with  the 
conduct  of  the  war. 

The  words  "war  premises,"  as  used  herein,  shall  include  all  buildings, 
grounds,  mines,  or  other  places  wherein  such  w^ar  material  is  being  produced, 
manufactured,  repaired,  stored,  mined,  extracted,  distributed,  loaded,  unloaded, 
or  transported,  together  with  all  machinery  and  appliances  therein  contained; 


1504 


NaturaUzation.  Pt.  3.  STATUTES  AT  LARGE.  May  9,  1918. 

and  all  forts,  arsenals,  navy  yards,  camps,  prisons,  or  other  military  or  naval 
stations  of  the  United  States,  or  any  associate  nation. 

The  words,  "war  utilities,"  as  used  herein,  shall  include  all  railroads,  rail- 
ways, electric  lines,  roads  of  whatever  description,  railroad  or  railwa}^  fixture, 
canal,  lock,  dam,  wharf,  pier,  dock,  bridge,  building,  structure,  engine,  machine, 
mechanical  contrivance,  car,  vehicle,  boat,  or  aircraft,  or  any  other  means  of 
transportation  whatsoever,  whereon  or  whereby  such  war  material  or  any 
troops  of  the  United  States,  or  of  any  associate  nation,  are  being  or  may  be 
transported  either  within  the  limits  of  the  United  States  or  upon  the  high  seas; 
and  all  dams,  reservou-s,  aqueducts,  water  and  gas  mains  and  pipes,  structures 
and  buildings,  whereby  or  in  connection  with  which  water  or  gas  is  being 
furnished,  or  may  be  furnished,  to  any  war  premises  or  to  the  military  or  naval 
forces  of  the  United  States,  or  any  associate  nation,  and  all  electric  light  and 
power,  steam  or  pneumatic  power,  telephone  and  telegraph  plants,  poles, 
wires,  and  fixtures  and  wireless  stations,  and  the  buildings  connected  with  the 
maintenance  and  operation  thereof  used  to  supply  water,  light,  heat,  power, 
or  facilities  of  communication  to  any  war  premises  or  to  the  military  or  naval 
forces  of  the  United  States,  or  any  associate  nation. —  (40  Stat.,  533,  chap.  59.) 

The  words  "United  States"  shall  include  the  Canal  Zone  and  all  territory- 
and  waters,  continental  and  insular,  subject  to  the  jurisdiction  of  the  United 
States. 

The  words  "  associate  nation,"  as  used  in  this  Act,  shall  be  deemed  to  mean 
any  nation  at  war  with  any  nation  with  which  the  United  States  is  at  war. 

Sec.  2.  That  when  the  United  States  is  at  war,  whoever,  with  intent  to 
mjure,  interfere  with,  or  obstruct  the  United  States  or  any  associate  nation  in 
preparing  for  or  carrv'ing  on  the  war,  or  whoever,  with  reason  to  believe  that 
his  act  may  mjure,  interfere  with,  or  obstruct  the  United  States  or  any  associate 
nation  in  preparmg  for  or  carr\'ing  on  the  war,  shall  willfully  injm"e  or  destroy, 
or  shall  attempt  to  so  injure  or  destroy,  any  war  material,  war  premises,  or 
war  utilities,  as  herein  defined,  shall,  upon  conviction  thereof,  be  fined  not 
more  than  S10,000  or  imprisoned  not  more  than  thu'ty  years,  or  both. 

Sec.  3.  That  when  the  United  States  is  at  war,  whoever,  with  intent  to 
injure,  interfere  with,  or  obstruct  the  United  States  or  any  associate  nation 
in  preparing  for  or  carrying  on  the  war,  or  whoever,  with  reason  to  believe 
that  his  act  may  injure,  interfere  with,  or  obstruct  the  United  States  or  any 
associate  nation  in  preparing  for  or  carrying  on  the  war,  shall  willfully  make 
or  cause  to  be  made  in  a  defective  manner,  or  attempt  to  make  or  cause  to 
be  made  in  a  defective  manner,  any  war  material,  as  herein  defined,  or  any 
tool,  implement,  machine,  utensil,  or  receptacle  used  or  employed  in  mak- 
ing, producing,  manufacturing,  or  repairing  any  such  war  material,  as 
herein  defined,  shall,  upon  conviction  thereof,  be  fined  not  more  than  $10,000 
or  imprisoned  not  more  than  thirty  years,  or  both.— (40  Stat.,  534,  chap.  59.) 

See  Criminal  Code,  act  of  March  4,  1909,  section  45  (35  Stat..  1097). 

[1918,  May  9.  Naturalization  of  aliens  in  the  naval  service,  etc.]  That 
section  four  of  the  Act  entitled  ''An  Act  to  establish  a  Bm-eau  of  Immigration 
and  Naturalization  and  to  provide  a  uniform  rule  for  the  naturalization  of 
aliens  throughout  the  United  States,"  approved  June  twenty-ninth,  nineteen 

1505 


May  9,  1918.  Pt.  3.  STATUTES  AT  LARGE.  Naturalization. 

hundred  and  six,  be,  and  is  hereby,  amended  by  adding  seven  new  subdivisions 
as  follows : 

"Seventh.  Any  native-born  Filipino  of  the  age  of  twenty-one  years  and 
upward  who  has  declared  his  intention  to  become  a  citizen  of  the  United  States 
and  who  has  enlisted  or  may  hereafter  enlist  in  the  United  States  Navy  or 
]\Iarine  Corps  or  the  Naval  Auxiliary  Service,  and  who,  after  service  of  not  less 
than  tliree  years,  may  be  honorably  discharged  therefrom,  or  who  may  receive 
an  ordinary  discharge  with  recommendation  for  rcenlistment;  or  any  alien,  or 
any  Porto  Rican  not  a  citizen  of  the  United  States,  of  the  age  of  twenty-one 
years  and  upward,  who  has  enlisted  or  entered  or  may  hereafter  enlist  in  or 
enter  the  armies  of  the  United  States,  either  the  Regular  or  the  Volunteer 
Forces,  or  the  National  Army,  the  National  Guard  or  Naval  Militia  of  any 
State,  Territory,  or  the  District  of  Columbia,  or  the  State  militia  in  Federal 
service,  or  in  the  United  States  Navy  or  Marine  Corps,  or  in  the  United  States 
Coast  Guard,  or  who  has  served  for  three  years  on  board  of  any  vessel  of  the 
United  States  Government,  or  for  tliree  years  on  board  of  merchant  or  fishing 
vessels  of  the  United  States  of  more  than  twenty  tons  burden,  and  while  still  in 
the  service  on  a  rcenlistment  or  reappointment,  or  within  six  months  after  an 
honorable  discharge  or  separation  therefrom,  or  wliile  on  furlough  to  the  Army 
Reserve  or  Regular  ^irmy  Reserve  after  honorable  service,  may,  on  presenta- 
tion of  the  required  declaration  of  intention  petition  for  naturalization  without 
proof  of  the  required  five  years'  residence  within  the  United  States  if  upon 
examination  by  the  representative  of  the  Bureau  of  Naturalization,  in  accord- 
ance with  the  requirements  of  this  subdivision  it  is  shown  that  such  residence 
can  not  be  established;  any  alien  serving  in  the  military  or  naval  service  of  the 
United  States  during  the  time  this  country  is  engaged  in  the  present  war  may 
file  his  petition  for  naturalization  without  making  the  preliminary  declaration 
of  intention  and  without  proof  of  the  required  five  years'  residence  within  the 
United  States;  any  alien  declarant  who  has  served  in  the  United  States  Army 
or  Navy,  or  the  Philippine  Constabulary,  and  has  been  honorably  discharged 
therefrom,  and  has  been  accepted  for  service  in  either  the  military  or  naval 
service  of  the  United  States  on  the  condition  that  he  becomes  a  citizen  of  the 
United  States,  may  file  his  petition  for  naturalization  upon  proof  of  continuous 
residence  within  the  United  States  for  the  three  years  immediately  preceding 
his  petition,  by  two  witnesses,  citizens  of  the  United  States,  and  in  these  cases 
only  residence  in  the  Philippine  Islands  and  the  Panama  Canal  Zone  by  aliens 
may  be  considered  residence  within  the  United  States,  and  the  place  of  such 
military  service  shall  be  construed  as  the  place  of  residence  required  to  be 
established  for  purposes  of  naturalization;  and  any  alien,  or  any  person  owing 
permanent  allegiance  to  the  United  States  embraced  within  this  subdivision, 
may  file  his  petition  for  naturalization  in  the  most  convenient  court  wdthout 
proof  of  residence  within  its  jurisdiction,  notwithstanding  the  limitation  upon 
the  jurisdiction  of  the  com-ts  specified  in  section  three  of  the  Act  of  June  twenty- 
ninth,  nineteen  hundred  and  six,  provided  he  appears  with  liis  two  witnesses 
before  the  appropriate  representative  of  the  Bureau  of  NaturaHzation  and 
passes  the  preliminary  examination  hereby  required  before  filing  his  petition 
for  naturalization  in  the  office  of  the  clerk  of  the  court,  and  in  each  case  the 

1506 


Naturalization.  Ft.  3.  STATUTES  AT  LARGE.  May  9,  1918. 

record  of  this  examination  shall  be  offered  in  evidence  by  the  representative 
of  the  Government  from  the  Bureau  of  Naturalization  and  made  a  part  of  the 
record  at  the  original  and  any  subsequent  hearings;  and,  except  as  otherwise 
herein  provided,  the  honorable  discharge  certificate  of  such  alien,  or  person 
owing  permanent  allegiance  to  the  United  States,  or  the  certificate  of  service 
showing  good  conduct,  signed  by  a  duly  authorized  officer,  or  by  the  masters 
of  said  vessels,  shall  be  deemed  prima  facie  evidence  to  satisfy  all  of  the  require- 
ments of  residence  within  the  United  States  and  within  the  State,  Territory, 
or  the  District  of  Columbia,  and  good  moral  character  required  by  law,  when 
supported  by  the  affidavits  of  two  %\'itnesses,  citizens  of  the  United  States 
identifying  the  applicant  as  the  person  named  in  the  certificate  or  honorable 
discharge,  and  in  those  cases  only  where  the  alien  is  actually  in  the  military 
or  naval  service  of  the  United  States,  the  certificate  of  arrival  shall  not  be  filed 
with  the  petition  for  natui'alization  in  the  manner  prescribed;  and  any  petition 
for  naturalization  filed  under  the  provisions  of  this  subdivision  may  be  heard 
immediately,  notwithstanding  the  law  proliibits  the  hearing  of  a  petition  for 
naturalization  during  thirty  days  preceding  any  election  in  the  jurisdiction 
of  the  court     *     *     *.— (40  Stat.,  542-543,  chap.  69.) 


See  act  of  August  29,  1916  (39  Stat.,  587),  as 
amended  by  act  of  May  22,  1917  (40  Stat., 
84),  with  respect  to  naturalization  of 
members  of  the  Naval  Reserve  Force;  and 


see  notes  to  Constitution,  Article  I,  sec- 
tion 8,  clause  4;  Article  IV,  section  3, 
clause  2;  and  fourteenth  amendment. 


[1918,  May  14.  Ag^e  of  candidates  for  Naval  Academy.]  That  hereafter  all 
candidates  for  admission  to  the  Xaval  Academy  must  be  not  less  than  sixteen 
years  of  age  nor  more  than  twenty  years  of  age  on  April  first  of  the  calendar 
year  in  which  they  enter  the  academy:  Provided,  That  the  foregoing  shall  not 
apply  to  candidates  for  midshipmen  designated  for  entrance  to  the  academy  in 
nineteen  hundred  and  eighteen. — (40  Stat.,  550,  chap.  73.) 
See  note  to  section  1517,  Revised  Statutes. 

[1918,  July  1.  Government  fuel  yards,  District  of  Columbia.]  The  Secretary 
of  the  Interior  is  authorized  and  directed  to  establish  in  the  District  of  Columbia 
storage  and  distributing  yards  for  the  storage  of  fuel  for  the  use  of  and  delivery 
to  all  branches  of  the  Federal  service  and  the  municipal  government  in  the 
District  of  Columbia  and  such  parts  thereof  as  may  be  situated  immediately 
without  the  District  of  Columbia  and  economically  can  be  supplied  therefrom, 
and  to  select,  purchase,  contract  for,  and  distribute  all  fuel  required  by  the  said 
services.  Authority  is  granted  the  Secretary  of  the  Interior,  in  connection 
with  the  establishment  of  the  said  yards,  to  procure  by  purchase,  requisition 
for  immediate  use,  condemnation,  or  lease  for  such  period  as  may  be  necessary, 
land,  wharves,  and  railroad  trestles  and  sidings  requisite  therefor.  All  branches 
of  the  Federal  service  and  the  municipal  government  in  the  District  of  Columbia, 
from  and  after  the  establishment  of  the  said  fuel  yards,  shall  purchase  all  fuel 
from  the  Secretary  of  the  Interior  and  make  payment  therefor  from  applicable 
appropriations  at  the  actual  cost  thereof  to  the  United  States,  including  aU 
expenses  connected  therewith     *     *     *. — (40  Stat.,  672-673,  chap.  113.) 

By  act  of  July  11,  1919  (41  Stat.,  148),  it  was  j  except  the  naval  hospital,  in  the  District 

pro\ided   that    the  above   enactment   of  of  Columbia." 

July  1,  1918,  "shall  not  apply  to  the  fuel       See  act  of  June  5,  1920  (41  Stat.,  913). 
required  for    the    Xaval    Establishment, 

1507 


July  1,  1918.  PL  S.  STATUTES  AT  LARGE. 

[1918,  July  1.  Claims  for  damages  by  naval  forces  abroad.]  That  hereafter 
the  Secretary  of  the  Nuav  is  authorized  to  consi(ku-,  ascertain,  adjust,  determine, 
and  pay  the  amounts  tlue  on  all  chxims  for  damages  to  and  loss  of  private  prop- 
erty of  inliabitants  of  any  European  country  not  an  enemy  or  ally  of  an  enemy 
when  the  amount  of  the  claim  does  not  exceed  the  sum  of  $1,000,  occasioned  and 
caused  by  men  in  the  naval  service  during  the  period  of  the  present  war,  all 
payments  in  settlement  of  such  claims  to  be  made  out  of  "Pay,  Miscellane- 
ous."—(40  Stat.,  705,  chap.  114.) 

See  act  of  June  24,  1910  (36  Stat.,  607),  and  references  thereunder. 

[1918,  July  1.  Improvements  on  land  leased  by  the  Navy.]  The  Secretary  of 
the  Navy  is  authorized  in  leasing  water-front  property  from  any  State  or  munici- 
pality where  the  State  law  or  charter  of  the  municipality  requires  that  the 
improvements  placed  upon  leased  lands  shall  at  the  termination  of  the  lease 
become  the  property  of  the  State  or  municipality,  to  provide,  as  a  part  or  all  of 
the  consideration  therefor,  that  improvements  placed  thereon  by  the  United 
States  shall  become  the  property  of  the  lessor  upon  the  expiration  of  the  lease 
or  any  renewal  thereof. — (40  Stat.,  705,  chap.  114.) 

See  note  to  section  355,  Re\'ised  Statutes. 

[1918,  July  1.  Salvage  by  naval  vessels.]  That  hereafter  the  Secretary  of 
the  Navy  is  authorized  to  cause  vessels  under  his  control  adapted  to  the  purpose, 
to  afford  salvage  service  to  public  or  private  vessels  in  distress:  Provided, 
That  when  such  salvage  service  is  rendered  by  a  vessel  specially  equipped  for 
the  purpose  or  by  a  tug,  the  Secretary  of  the  Navy  may  determine  and  collect 
reasonable  compensation  therefor. — (40  Stat.,  705,  chap.  114.) 

See  sections  1536  and  4642,  Revised  Statutes,  and  March  9,    1920,   sections  10  and   11 

and  acts  of  August  1,  1912  (37  Stat.,  242),  (41  Stat.,  528). 

[1918,  July  1.  Hydrographic  Office,  naval  officers  detailed  to.]  That  the 
Secretary  of  the  Navy  is  authorized  to  detail  such  naval  officers  as  may  be 
necessary  to  the  Hydrographic  Office. —  (40  Stat.,  708,  chap.  114.) 

This  provision  was  repeated  in  acts  of  July  11, 
1919  (41  Stat.,  135),  and  June  4,  1920  (41 
Stat.,  816). 


See  section  431,  Revised  Statutes,  and  note 
thereto. 


[1918,  July  1.  Naval  Militia  and  National  Naval  Volunteers  abolished. 
Naval  Reserve  Force,  rank  of  members.]  That  upon  the  approval  of  this 
Act  all  laws  heretofore  enacted  by  the  Congress  relating  to  the  Naval  Militia 
and  the  National  Naval  Volunteers  be,  and  the  same  hereby  are,  repealed; 
and  the  President  is  authorized  to  transfer  as  a  class  all  members  of  the 
National  Naval  Volunteers  to  the  class  "the  Naval  Reserve,"  "the  Naval 
Reserve  Flying  Corps,"  or  "the  Marine  Corps  Reserve"  of  the  Naval  Reserve 
Force  or  the  Marine  Corps  Reserve,  for  general  service,  in  the  confirmed  rank, 
grade,  or  rating  they  now  hold  in  the  National  Naval  Volunteers,  regardless  of 
their  being  members  of  a  State  military  force,  and  without  examination  and 
the  necessity  of  executing  or  filing  a  new  oath  and  acceptance  of  office;  that  until 
such  transfer  is  affected  members  of  the  National  Naval  Volunteers  shall  retain 
their  present  status   and  be  entitled   to  receive  the  same  pay,   allowances, 


1508 


Rank  of  members  of  the  Naval  Reserve  Force: 

See  act  of  August  29,  1916  (39  Stat.,  587), 
and  see  pro\'ision  of  this  act  (40  Stat.,  711) 
set  forth  below,  as  to  promotion  in  the 
Naval  Reserve  Force. 


PL  3.  STATUTES  AT  LARGE.  July  1,  1918. 

gratuities,  and  other  benefits  as  heretofore  provided  by  law,  and  shall  con- 
tinue subject  to  the  laws  prescribed  for  the  government  of  the  Navy;  that 
all  members  of  the  Naval  Reserve  Force  shall  be  eligible  for  reenrollment  in 
the  rank,  grade,  or  rating  held  on  the  termination  of  their  last  enrollment; 
that  no  enrollments  or  promotions  shall  be  made  in  any  rank  or  grade  above 
that  of  lieutenant  commander,  except  as  herein  otherwise  provided. — (40  Stat., 
708,  chap.  114.) 

See  act  of  August  29,  1916  (39  Stat.,  587-593), 

creating   the    Naval    Reserve    Force    and 

Marine  Corps  Reserve. 
Some  legislation  relating  to  the  Naval  Militia 

was  re\'ived,  until  June  30,  1922,  bv  act 

of  June  4,  1920  (41  Stat.,  817). 

[1918,  July  1.  Medical  and  Dental  Eeserve  Corps  abolished.]  That  all 
laws  heretofore  enacted  by  Congress  relating  to  the  Medical  Reserve  Corps 
and  Dental  Reserve  Corps  be,  and  the  same  hereby  are,  repealed:  Provided, 
That  members  of  the  Medical  Reserve  Corps  and  Dental  Reserve  Corps  may 
be  enrolled  in  the  Naval  Reserve  Force  in  their  present  grades  and  ranks. — 
(40  Stat.,  708,  chap.  114.) 

See  note  to  section  1368,  Re\dsed  Statutes,  as  to  the  organization  of  the  Medical  Department 
of  the  Navy. 

[1918,  July  1.  Naval  Reserve,  age  limits;  minimum  active  service.]  That 
the  age  limits  for  the  several  ranks,  grades,  and  ratings  on  first  enrollment 
in  the  Naval  Reserve  shall  be  as  prescribed  by  the  Secretary  of  the  Navy. 

That  the  minimum  active  service  required  for  maintaining  the  efficiency 
of  a  member  of  the  Naval  Reserve  shall  be  two  months  durmg  each  term  of 
enrollment  and  an  attendance  at  not  less  than  thirty-six  drills  during  each  year, 
or  other  equivalent  duty.  The  active  service  may  be  in  one  period  or  in 
periods  of  not  less  than  fifteen  days  each. — -(40  Stat.,  710,  chap.  114.) 

See  act  of  August  29,  1916  (39  Stat.,  591),  relating  to  the  Naval  Reserve. 

[1918,  July  1.  Naval  Eeserve  Force,  retainer  pay  and  retirement.]  That 
the  annual  retainer  pa}^  of  members  of  the  Naval  Reserve  Force,  except  officers 
in  the  Naval  Auxiliary  Reserve  and  transferred  members  of  the  Fleet  Naval 
Reserve,  after  confirmation  in  rank,  grade,  or  rating,  shall  be  the  equivalent 
of  two  months'  base  pay  of  the  corresponding  rank,  grade,  or  rating  in  the  Navy, 
but  the  highest  base  pay  upon  which  the  retainer  pay  of  officers  of  the  Naval 
Reserve  Force  shall  be  computed  shall  not  be  greater  than  the  base  pay  of  a 
lieutenant  commander.  Service  in  the  Navy,  Marine  Corps,  National  Naval 
Volunteers,  and  Naval  ]VIilitia  shall  be  counted  as  continuous  service  in  the 
Naval  Reserve  Force,  both  for  the  purpose  of  retirement  and  of  computing  re- 
tainer pay:  Provided,  That  no  member  of  the  Naval  Reserve  Force  shall  be 
eligible  for  retirement  other  than  for  physical  disability  incurred  in  line  of  duty: 
Provided  further.  That  no  retainer  pay  of  any  member  of  the  Naval  Reserve 
Force  except  those  enlisted  men  transferred  to  the  Fleet  Naval  Reserve  after 
sixteen  or  twenty  or  more  years'  naval  service  shall  be  in  excess  of  the  amount 
authorized  to  members  having  had  sixteen  years'  continuous  service  therein. — 
(40  Stat.,  710-711.  chap.  114.) 


1509 


July  1,  1918. 


Pt.  3.  STATUTES  AT  LARGE. 


See  note  to  section  1556,  Revised  J^tatutes,  as 
to  jmy  of  Naval  Reserve  Force. 

Retirement  of  enrolled  members  of  the  Naval 
Reserve  Force,  after  20  years'  service,  and 
of  transferred  members,  after  30  years' 
serAice,  was  authorized  by  act  of  Aup;ust  29, 
1916  (39  Stat.,  588  and  591);  retirement  of 
officers  of  the  Naval   Reserve   Force  for 


physical  disability  in  line  of  duty   was 
authorized  by  act  of  June  4,  1920,  section 
2  (41  Stat.,  834). 
Marine   Corps  Resei've. — The  provisions 

of  this  paragraph  as  to  retirement  for  physical 

disability  apply  to  the  Marine  Corps  Reserve. 

(File  26253-737,  Oct.  16,  1919;  see  note  to  act 

of  Aug.  29,  1916,  39  Stat.,  593.) 


[1918.  July  1.  Naval  Reserve  Force,  active  duty;  uniform  gratuity ;  retainer 
pay  while  on  active  duty.]  That  in  time  of  peace  the  Secretary  of  the  Nav}'  is 
autliorized,  in  his  discretion,  to  order  any  member  of  the  Naval  Reserve  Force, 
with  his  consent,  who  has  been  confirmed  in  his  rank,  grade,  or  rating,  to  per- 
form any  duty  afloat  for  any  period  of  time  for  which  his  services  may  be  re- 
quired: Provided,  That  such  members  may  be  relieved  from  duty  by  the  Secre- 
tary of  the  Navy  at  any  time  and  shall  upon  their  own  application  be  released 
from  said  duty  within  four  months  from  the  date  of  their  application  therefor. 

That  the  uniform  gratuity  for  the  members,  other  than  officers,  of  each  class 
of  the  Naval  Reserve  Force  shall  be  the  same  as  that  prescribed  for  enlisted 
men  of  the  Navy,  but  in  time  of  peace  the  Secretary  of  the  Navy  shall  prescribe 
the  portion  of  the  clothing  gratuity  to  be  issued  to  such  members,  other  than 
officers,  of  the  Naval  Reserve  Force. 

That  in  time  of  peace  no  member  of  any  class  of  the  Naval  Reserve  Force 
shall  be  entitled  to  retainer  pay  when  assigned  to  active  duty  for  purposes  other 
than  training. 

That  no  part  of  the  clothing  gratuity  credited  to  members  of  the  Naval 
Reserve  Force  shall  be  deducted  from  their  accomits  where  said  members  accept 
or  have  accepted  temporary  appointments  in  the  Navy  in  time  of  war  or  other 
national  emergency. — (40  Stat.,  711,  chap.  114.) 

As  to  uniform  gratuity  and  retainer  pay  of  the       As 
Naval  Reserve  Force,  see  note  to  section 
1556,  ReAised  Statutes,  under  "37.  Naval 
Reserve  Force." 

[1918,  July  1.  Naval  Reserve  Force,  disenrollment  for  age;  promotion;  pre- 
cedence; command.]  That  members  of  the  Naval  Reserve  Force  shall  upon 
reaching  the  age  of  sixty-four  years  be  disenrolled  except  that  in  time  of  war  or 
other  national  emergency  such  members  of  the  Naval  Reserve  Force,  if  in  active 
service,  may  be  continued  therein  during  such  period  as  the  Secretary  of  the 
Navy  may  determine,  but  not  longer  than  six  months  after  said  war  or  other 
national  emergency  shall  cease  to  exist. 

That  no  officer  of  any  class  of  the  Naval  Reserve  Force  shall  in  time  of  peace 
be  promoted  above  the  grade  of  lieutenant  commander,  but  in  time  of  war  or 
other  national  emergency  officers  of  the  Naval  Reserve  Force  of  and  above  the 
rank  of  lieutenant  commander  in  active  service  shall  be  eligible  for  selection  for 
promotion  to  the  next  higher  grade  or  rank  by  the  same  board  of  officers  that 
selects  officers  of  the  United  States  Navy  for  promotion  to  such  higher  ranks  and 
grades,  under  the  same  rules  and  regulations  as  apply  to  the  selection  for  pro- 
motion of  officers  of  the  United  States  Navy.  The  promotion  of  officers  of  the 
Naval  Reserve  Force  below  the  rank  of  lieutenant  commander  shall  at  all 
times  be  in  accordance  with  such  regulations  as  the  Secretary  of  the  Navy  may 
prescribe. 


to  active  service  in  the  Naval  Reserve 
Force,  see  act  of  August  29,  1916  (39  Stat., 
587-589). 


1510 


PL  3.  Statutes  at  large.  juiy  i,  1918. 

That  when  on  active  duty  officers  of  the  Naval  Reserve  Force  shall  take 
precedence  among  themselves  and  with  other  officers  of  the  naval  service  in 
their  respective  grades  or  ranks  according  to  the  dates  of  their  commissions  or 
provisional  assignment  of  rank  in  the  Naval  Reserve  Force:  Provided,  That  all 
officers  of  the  Naval  Reserve  Force  of  and  above  the  rank  of  lieutenant  com- 
mander shall  rank  with  but  after  officers  of  the  same  rank  or  grade  in  the  United 
States  Navy,  except  that  in  time  of  war  or  other  national  emergency  such 
officers  of  the  Naval  Reserve  Force  shall  have  a  date  of  precedence  with  officers 
of  the  United  States  Navy  as  of  the  date  of  general  mobilization,  to  be  estab- 
lished by  the  Secretary  of  the  Navy:  Provided  further,  That  during  the  present 
emergency  the  date  of  precedence  of  all  officers  of  the  Naval  Reserve  Force 
shall  be  as  prescribed  by  the  Secretary  of  the  Navy. 

No  officer  of  the  Naval  Coast  Defense  Reserve  or  officer  of  the  Naval 
Reserve  Flying  Corps  shall  exercise  command  except  within  his  particular 
department  or  service  for  the  due  performance  of  his  respective  duties. — (40 
Stat.,  711,  chap.  114.) 

As  to  promotion  by  selection  in  the  Navy,  see  acts  of  August  29,  1916  (39  Stat.,  578-579), 
and  July  1,  1918  (40  Stavt.,  718). 

[1918,  July  1.  Naval  Reserve  Force,  pay  and  discipline;  wearing  of  uniform 
when  not  in  active  service.]  Members  of  the  Naval  Reserve  Force  when  employ- 
ed in  active  service,  ashore  or  afloat,  under  the  Navy  Department  shall  receive 
the  same  pay  and  allowances  as  received  by  the  officers  and  enlisted  men  of  the 
Regular  Navy  of  the  same  rank,  grades,  or  ratings  and  of  the  same  length  of 
service,  which  shall  include  service  in  the  Navy,  Marine  Corps,  Naval  Reserve 
Force,  Naval  Militia,  National  Naval  Volunteers,  or  Marine  Corps  Reserve.  *  *  * 

Enrolled  members  of  the  Naval  Reserve  Force  when  in  active  service  shall 
be  subject  to  the  laws,  regulations,  and  orders  for  the  government  of  the  Regular 
Navy,  and  the  Secretary  of  the  Navy  may,  in  his  discretion,  permit  the  members 
of  the  Naval  Reserve  Force  to  wear  the  uniform  of  their  respective  ranks, 
grades,  or  ratings  while  not  in  active  service,  and  such  members  shall,  for  any 
act  committed  by  them  while  wearing  the  uniform  of  their  respective  ranks, 
grades,  or  ratings,  be  subject  to  the  laws,  regulations,  and  orders  for  the  govern- 
ment of  the  Regular  Navy.— (40  Stat.,  712,  chap.  114.) 

As  to  pay  of  Naval  Reserve  Force,  see  note  to 
section  1556,  ReAdsed  Statutes,  under  "37. 
Naval  Reserve  Force." 

As  to  amenability  of  members  to  trial  by  naval 
court-martial,  see  note  to  preamble  of  sec- 
tion 1624,  Revised  Statutes. 

[1918,  July  1.  Authorized  enlisted  strength  of  the  Navy.]  That  the  au- 
thorized enlisted  strength  of  the  active  list  of  the  Navy  is  hereby  increased 
from  eighty-seven  thousand  to  one  hundred  and  thirty-one  thousand  four 
hundred  and  eighty-five. — (40  Stat.,  714,  chap.  114.) 


See  act  of  June  3,  1916,  section  125  (39  Stat., 
216-217),  and  note  thereto,  Avith  respect  to 
unauthorized  wearing  of  the  uniform. 


Subsequent  provisions  of  tliis  act  reenacted 
section  1  of  the  act  of  May  22, 1917  (40  Stat. , 
84),  and  in  such  reenactment  embodied  a 
definition  of  the  words  "authorized  enlist- 
ed strength."  (See  the  act  last  cited  for 
definition.) 


See  note  to  section  1417,  RoA-ised  Statutes,  as 
to  enlisted  strength  of  the  Navy;  see  also 
act  of  August  29,  1916  (39  Stat.,  575),  and 
references  thereunder. 


1511 


July  1,  1918.  PL  3.  STATUTES  AT  ,  ARGE. 

<■■ 
[1918,  July  1.  Major  generals  authorized,  Marine  Corps.]     The  rank  and 

title  of  Major  General  is  hereby  created  in  the  Marine  Corps,  and  the  President 

is  authorized  to  nominate,  and,  by  and  with  the  advice  and  consent  of  the 

Senate,  to  appoint  one  Major  General,  who  shall  at  all  times  be  jmiior  in  rank 

to  the  Major  General  Commandant,  and  also  one  temporary  Major  General  in 

the  Marine  Corps,  who  shall  at  all  times  be  junior  to  the  permanent  Major 

General.— (40  Stat.,  715,  chap.  114.) 


See  note  to  section  1596,  Re^dsed  Statutes,  as 
to  niunber  and  grades  of  officers  in  the 
Marine  Corps. 


A  subsequent  provision  of  this  act  (40  Stat., 
733),  set  forth  below,  limited  the  duration 
of  "all  temporary  promotions  and  advance- 
ments authorized  by  this  Act,"  to  "not 
later  than  six  months  after  the  termination 
of  the  present  war.  " 

[1918,  July  1.  Allowances  of  admirals  and  vice  admirals;  rank,  pay  and 
allowances  of  chiefs  of  bureaus  and  Judge  Advocate  General.]  That  hereafter 
the  Chief  of  Naval  Operations  shall  receive  the  allowances  which  are  now  or 
may  hereafter  be  prescribed  by  or  in  pursuance  of  law  for  the  grade  of  general 
in  the  Army,  and  the  officers  of  the  Navy  holding  the  rank  and  title  of  Admiral 
and  Vice  Admiral  in  the  Navy  while  hokUng  such  rank  and  title  shall  receive 
the  allowances  of  a  General  and  Lieutenant  General  of  the  ^Vi'my,  respectively. 
And  hereafter  chiefs  of  bureaus  of  the  Navy  Department,  including  the  Judge 
Advocate  General  of  the  Navy,  shall,  while  so  serving,  have  corresponding 
rank  and  shall  receive  the  same  pay  and  allowances  as  are  now  or  may  hereafter 
be  prescribed  by  or  in  pursuance  of  law  for  chiefs  of  bureaus  of  the  War  Depart- 
ment and  the  Judge  Advocate  General  of  the  Army. — (40  Stat.,  716-717,  chap. 
114.) 


See  note  to  sections  421  and  1565,  Revised  Stat- 
utes, as  to  chiefs  of  bureaus;  see  note  to 
section  1556,  Revised  Statutes,  under  "2-3. 
Admirals;  Vice  admirals;"  see  also  notes 
to  sections  1362,  1487,  1558,  and  1578,  Re- 
vised Statutes. 

Chief  of  Naval  Operations:  See  acts  of  March  3, 


1915  (38  Stat.,  929),  and  August  29, 1916  (39 

Stat.,  558). 
Judge  Advocate  General:  See  act  of  June  8, 

1880  (21  Stat.,  164),  as  amended  by  act  of 

Junes,  1896  (29  Stat.,  251). 
Ranks  of  admiral  and  ^•ice  admiral :  See  act  of 

May  22,  1917,  section  18  (40  Stat.,  89). 


[1918,  July  1.  Retired  officers,  permanent  promotion  in  time  of  war.]  That 
hereafter,  during  the  existence  of  war  or  of  a  national  emergency  declared  by 
the  President  to  exist,  any  commissioned  or  warrant  officer  of  the  Navy,  Marine 
Corps,  or  Coast  Guard  of  the  United  States  on  the  retired  list  may,  in  the  dis- 
cretion of  the  Secretary  of  the  Navy,  be  ordered  to  active  duty  at  sea  or  on 
shore;  and  any  retired  officer  performing  such  active  duty  in  time  of  war  or 
national  emergency,  declared  as  aforesaid,  shall  be  entitled  to  promotion  on 
the  retired  list  to  the  grade  or  rank,  not  above  that  of  lieutenant  commander 
in  the  Navy  or  major  in  the  Marine  Corps  or  captain  in  the  Coast  Guard,  and 
shall  thereafter  receive  the  pay  and  allowances  thereof,  which  his  total  active 
service  as  an  officer  both  prior  and  subsequent  to  retirement,  in  the  manner 
rendered  by  liim,  would  have  enabled  him  to  attain  in  due  course  of  promotion 
had  such  service  been  rendered  continuously  on  the  active  list  during  the  period 
of  time  last  past. — (40  Stat.,  717,  chap.  114.) 

See  notes  to  sections  1591-1592,  Re\dsed  Statutes. 

[1918,  July  1.  Retired  officers,  temporary  promotion  in  time  of  war.] 
That  during  the  existence  of  war  or  of  a  national  emergency,  declared  as  afore- 

1512 


Ft.  3.  STATUTES  AT  LARGE.  July  1,  1918. 

said,  any  commissioned  or  warrant  officer  of  the  Navy,  Marine  Corps  or  Coast 
Guard  of  the  United  States  on  the  retired  hst,  while  on  active  duty,  may  be  tem- 
porarily advanced  to  and  commissioned  in  such  higher  grade  or  rank  on  the 
retired  list,  not  above  that  of  lieutenant  commander  in  the  Navy  or  major  in 
the  Marine  Corps  or  captain  in  the  Coast  Guard,  as  the  President  may  determine, 
and  any  officer  so  advanced  shall,  while  on  active  duty,  be  entitled  to  the  same 
pay  and  allowances  as  officers  of  like  grade  or  rank  on  the  active  list:  Provided, 
That  any  such  commissioned  or  warrant  officer  who  has  been  so  temporarily 
advanced  in  gi-ade  or  rank  shall,  upon  his  relief  from  active  duty,  or  in  any  case 
not  later  than  six  months  after  the  termination  of  the  war  or  of  the  national 
emergency,  declared  as  aforesaid,  revert  to  the  grade  or  rank  on  the  retired 
list  and  to  the  pay  and  allowance  status  which  he  would  have  held  had  he  not 
been  so  temporarily  advanced :  Provided  further,  That  nothing  in  this  Act  shall 
operate  to  reduce  the  pay  and  allowances  now  allowed  by  law  to  retired  offi- 
cers.—(40  Stat.,  717,  chap.  114.) 

See  notes  to  sections  1591-1592,  Revised  Statutes.  i,.,^ 

[1918,  July  1.  Staff  Corps,  promotion  by  selection.]  The  provisions  of 
existing  laws  with  reference  to  promotion  by  selection  in  the  line  of  the  Navy 
are  hereby  extended  to  include  and  authorize  advancement  to  the  ranks  of 
commander,  captain,  and  rear  admiral  in  the  Staff  Corps  of  the  Navy  under 
the  same  conditions  in  all  respects  except  as  may  be  necessary  to  adapt  the 
said  provisions  to  such  Staff  Corps:  Provided,  That  boards  of  selection  shall 
in  each  case  be  composed,  when  practicable,  of  not  less  than  five  members 
of  the  corps  concerned  and  promotions  shall  be  made  on  the  basis  of  fitness 
alone  by  selection  from  among  the  officers  of  the  rank  next  below:  Provided 
further.  That  the  requirements  for  sea  service  in  grade,  length  of  service  in 
grade  and  maximum  age  in  grade  for  promotion  shall  not  apply. — (40  Stat., 
718,  chap.  114.) 

See  act  of  August  29,  1916  (39  Stat.,  578-579),  as  Navy;  and  see  notes  to  sections  1458  and 

to  promotion  by  selection  in  the  line  of  the  1480,  Revised  Statutes. 

[1918,  July  1.  Aviation  duty;  no  increased  allowances.]  That  hereafter 
the  allowances  of  officers,  enlisted  men,  and  student  flyers  of  the  naval  service 
shall  in  no  case  be  increased  by  reason  of  the  performance  of  aviation  duty. — 
(40  Stat.,  718,  chap.  114.) 

See  acts  of  March  3,  1915  (38  Stat.,  939),  and 
August  29,  1916  (39  Stat.,  582-586);  and 
see  note  to  section  1556,  Re\'ised  Statutes, 


under  "38.  Additional  pay  for  special 
duty,"  and  note  to  section  1569,  ReAised 
Statutes. 


[1918,  July  1.  Navy  mail  clerks,  shore  duty.]  That  the  provisions  of  the 
Act  of  May  twenty-seventh,  nineteen  hundred  and  eight  (Thirty-fifth  Statutes, 
pages  fom"  hundred  and  seventeen  and  four  hundred  and  eighteen),  as  amended 
by  the  Act  of  August  twenty-fourth,  nineteen  hundred  and  twelve  (Thirty- 
seventh  Statutes,  page  five  hundred  and  sixty),  and  as  amended  by  the  Act  of 
March  fourth,  nineteen  hundred  and  seventeen  (Thirty-ninth  Statutes,  page 
eleven  hundred  and  eighty-eight),  are  hereby  extended  to  authorize  the  designa- 
tion of  enlisted  men  of  the  Navy  or  Marine  Corps  as  Navy  mail  clerks  and 
assistant  Navy  mail  clerks  for  duty  at  stations  and  shore  establishments  under 


1513 


July  1,  1918.  Pt.  3.  STATUTES  AT  LARGE. 

m 

the  jurisdiction  of  the  Navy  Department  where  the  services  of  such  mail  clerks 
and  assistant  mail  clerks  are  necessary. — (40  Stat.,  718,  chap.  114.) 

See  act  of  May  27,  1908  (35  Stat.,  417),  and  note  thereto. 

[1918,  July  1.  Quarters,  when  not  available.]  That  hereafter  the  Secretary 
of  the  Navy  may  determine  where  and  when  there  are  no  public  quarters  avail- 
able for  persons  in  the  Navy  and  Marine  Corps,  or  serving  therewith,  within 
the  meaning  of  any  Acts  or  parts  of  Acts  relating  to  the  assignment  of  quarters 
or  commutation  therefor. — (40  Stat.,  718,  chap.  114.) 

See  note  to  sections  236  and  1487,  Revised  Statutes. 

[1918,  July  1.  Cash  rewards  to  civilians  for  suggested  improvements.] 
Tliat  tlic  Secretary  of  the  Navy  is  hereby  authorized,  in  his  discretion  and 
under  such  rules  and  regulations  as  he  may  prescribe,  to  pay  cash  rewards  to 
civilian  employees  of  the  Navy  Department  or  the  Naval  Establisluiient  or 
other  persons  in  civil  life  when  due  to  a  suggestion  or  series  of  suggestions  by 
them  there  results  an  improvement  or  economy  in  manufacturing  process  or 
plant  or  naval  material:  Provided,  That  such  sums  as  may  be  awarded  to 
employees  or  other  persons  in  civil  life  in  accordance  with  this  Act  shall  be 
paid  them  out  of  current  naval  appropriations  in  addition  to  their  usual  com- 
pensation: Provided  further,  That  no  employee  or  other  person  in  civil  life 
sliall  be  paid  a  reward  under  this  Act  mitil  he  has  properly  executed  an  agree- 
ment to  the  effect  that  the  use  by  the  United  States  of  the  suggestion  or  series 
of  suggestions  made  by  him  shall  not  form  the  basis  of  a  further  claim  of  any 
nature  from  the  United  States  by  him,  his  heirs,  or  assigns. — (40  Stat.,  718, 
chap.  114.) 

See  sections  1763-1765,  Revised  Statutes,  and  references  thereunder. 

[1918,  July  1.  Retired  enlisted  men,  promotion.]  That  any  enlisted  man 
of  the  Navy  or  IViarine  Corps  upon  the  retired  list  who  has  been  ordered  into 
active  service  since  April  sixth,  nineteen  hundred  and  seventeen,  or  who  may 
hereafter  be  ordered  into  active  service,  shall  be  eligible  for  promotion  and  he 
shall  be  entitled  to  the  pay  and  benefits  of  continuous  service  of  sucli  rank  and 
for  such  length  of  time  as  he  is  or  has  been  employed  in  active  service,  and 
when  relieved  of  active  service  shall  retain  upon  the  retu-ed  list  the  rank  and 
service  held  by  him  at  the  time  of  such  relief,  with  the  pay  and  allowances  of 
such  rank  on  the  retired  list;  and  the  accounting  officers  of  the  Treasury  are 
hereby  directed  to  allow  in  the  accounts  of  any  enlisted  man  of  the  Navy  or 
Marine  Corps  who  resigned  from  the  retired  list  in  order  to  reenlist  for  appoint- 
ment in  a  higher  grade,  the  same  continuous  service  pay  and  the  benefits  of 
such  rank  to  which  he  may  have  been  appointed  upon  reenlistment,  as  if  his 
service  had  been  continuous,  and  any  difference  in  pay  from  the  date  of  reenlist- 
ment shall  be  credited  to  liis  account. — (40  Stat.,  719,  chap.  114.) 


See  notes  to  sections  1569  and  1622,  Revised 

Statutes. 
By  act  of  July  11,  1919  (41  Stat.,  153),  it  was 
provided  "That  so  much  of  the  Act  of 
July  1,  1918  (Public  Numbered  182),  as 
authorizes  the  promotion  of  retired  enlisted 
men  of  the  Navy  and  Marine  Corps  ordered 
to  active  duty  shall  not  be  so  construed  as 
to  make  illegal  promotions  of  such  men  as 


have  heretofore  been  made  to  warrant 
grades  or  as  to  deprive  them  of  any  of  the 
pay,  allowances,  or  other  benefits  accruing 
under  such  promotion."  (It  had  previ- 
ously been  held  that  the  above  act  of 
July  1,  1918,  did  not  authorize  the  promo- 
tion of  retired  enlisted  men  except  to 
higher  enlisted  gi-ades  on  the  retired  list: 
see  note  to  sec.  1622,  R.  S.) 


1514 


PL  3.  STATUTES  AT  LARGE.  July  8,  1918. 

[1918,  July  1.  Purchase  of  vessels  for  transportation  of  fuel.]  That  when, 
m  the  opinion  of  the  President,  the  prices  asked  for  the  charter  of  vessels  for 
the  transportation  of  fuel  are  excessive,  he  is  authorized  to  purchase  vessels 
suitable  for  the  purpose,  and,  if  money  is  not  other\^4se  available,  to  pay  for 
them  from  the  appropriation  ''Fuel  and  transportation." — (40  Stat.,  730, 
chap.  114.) 


The  above  was  a  proviso  following  appropria- 
tions for  '"fuel  and  transportation "'  in  the 
naval  appropriation  act  of  July  1,  1918;  an 
identical  pro\dsion  was  contained  in  act 


of  June  15,  1917  (40  Stat.,211.) 
See  act  of  April    28,  1904  (33  Stat.,  518),  and 
sections   3711,    3718,    and    3728,    Revised 
Statutes. 


[1918,  July  1.  Termination  of  temporary  promotions.]  That  all  temporary 
promotions  and  advancements  authorized  by  tliis  Act  shall  continue  in  force 
only  until  otherwise  directed  by  the  President,  and  not  later  than  six  months 
after  the  termination  of  the  present  war. — (40  Stat.,  733,  chap.  114.) 

The  above  paragi-aph  in  the  naval  appropria-  diately  after  proAisions  for  temporary  pro- 


tion  act  of  July  1,  1918,  followed  imme- 


motions  in  the  Coast  Guard. 


[1918,  July  1.  Pay  clerks,  Marine  Corps.]  The  title  of  clerks  for  assistant 
paymasters  is  hereby  changed  to  pay  clerk,  who  shall  hereafter  receive  the 
same  pay,  allowances,  and  other  benefits  now  provided  by  law  for  clerks  for 
assistant  paymasters;  and  the  total  number  of  pay  clerks  shall  not  exceed  ten 
for  duty  in  the  office  of  the  paymaster,  Marine  Corps,  fifteen  for  duty  in  the 
paymaster's  department  at  large,  and  one  for  each  assistant  paymaster:  Pro- 
vided^ That  nothing  herein  contained  shall  be  construed  to  reduce  the  pay, 
allowances,  or  other  benefits  granted  by  existing  law  to  any  clerk  for  assistant 
paymaster  now  in  service. — (40  Stat.,   735,  chap.  114.) 

See  notes  to  sections  1596  and  1612,  Re\-ised  Statutes. 

[1918,  July  1.  Advertising  for  recruits.]  That  hereafter  authorit}^  is  hereby 
granted  to  employ  the  services  of  advertising  agencies  in  advertising  for  recruits 
under  such  terms  and  conditions  as  are  most  advantageous  to  the  Government. — 
(40  Stat.,  736,  chap.  114.) 

This  was  a  proAiso  in  the  naval  appropriation  act  of  July  1,  1918,  following  appropriation 
for  "transportation  and  recniiting,  Marine  Corps." 

[1918,  July  8.  Transfer  of  naval  ordnance  to  War  Department.]  Such  naval 
ordnance  and  ordnance  material  as  the  Secretary  of  War  and  the  Secretary  of 
the  Navy  may  determine  necessary  is  authorized  to  be  transferred  from  the 
Navy  Department  to  the  War  Department:  Provided,  That  if  such  ordnance 
and  ordnance  material  is  obsolete  for  naval  purposes  the  transfer  shaU  be  made 
without  reimbursement  and  payment  to  the  Navy  for  other  ordnance  and 
ordnance  material  transferred  hereunder  shall  be  made  only  after  estimates 
shall  have  been  submitted  to  Congress  and  a  specific  appropriation  for  such  pay- 
ment shaU  have  been  made. — (40  Stat.,  817,  chap.  137.) 

See  act  of  July  11,  1919  (41  Stat.,  132),  and  references  thereunder. 

[1918,  July  8.  Unauthorized  wearing  of  uniform  or  decorations  of  friendly 
nations.]  That  it  shall  be  unla^vful  for  any  person,  with  intent  to  deceive  or 
mislead,  within  the  United  States  or  Territories,  possessions,  waters,  or  places 
subject  to  the  jm-isdiction  of  the  United  States,  to  wear  any  naval,  military, 
police,  or  other  official  uniform,  decoration,  or  regalia  of  any  foreign  State, 

54641°— 22 96  1515 


July  9,  1918.  Pi.  3.  STATUTES  AT  LARGE. 

nation,  or  Government  \vith  which  the  United  States  is  at  peace,  or  any  uni- 
form, decoration,  or  regalia  so  nearly  resembling  the  same  as  to  be  calculated 
to  deceive,  unless  such  wearing  thereof  be  authorized  by  such  State,  nation,  or 
Government. 

Any  person  who  violates  the  provisions  of  this  Act  shall  upon  conviction  be 
punished  by  a  fine  not  exceeding  S300  or  imprisonment  for  not  exceeding  six 
months,  or  by  both  such  fine  and  imprisonment.^ (40  Stat.,  821,  chap.  138.) 


8,  and  acts  of  Januarv  31,  1881,  section  2 
(21  Stat.,  604),  and  July  9,  1918  (40  Stat., 
872),  as  to  foreign  decorations. 


See  act  of  June  3,  1916,  section  125  (39  Stat., 
216-217),  as  to  unauthorized  wearing  of 
uniform  of  the  United  States,  and  see  note 
to  Constitution,  Article  I,  section  9,  clause 

[1918,  July  9.  Sale  of  war  supplies.]  That  the  President  be,  and  he  hereby 
is,  authorized,  through  the  head  of  any  executive  department,  to  sell,  upon 
such  terms  as  the  head  of  such  department  shall  deem  expedient,  to  any  person, 
partnership,  association,  corporation,  or  any  other  department  of  the  Govern- 
ment, or  to  any  foreign  State  or  Government,  engaged  in  war  against  any  Gov- 
ernment with  which  the  United  States  is  at  war,  any  war  supplies,  material  and 
equipment,  and  any  by-products  thereof,  and  any  building,  plant  or  factory, 
acquired  since  April  sixth,  nineteen  hundred  and  seventeen,  including  the  lands 
upon  which  the  plant  or  factory  may  be  situated,  for  the  production  of  such 
war  supplies,  materials,  and  equipment  which,  during  the  present  emergency, 
may  have  or  may  hereafter  be  purchased,  acquired,  or  manufactured  by  the 
United  States:  Provided  further,  That  sales  of  guns  and  ammunition  made 
under  the  authority  contained  in  this  or  any  other  Act  shall  be  limited  to  sales 
to  other  departments  of  the  Government  and  to  foreign  States  or  Governments 
engaged  in  war  against  any  Government  with  which  the  United  States  is  at  war, 
and  to  members  of  the  National  Rifle  Association  and  of  other  recognized  asso- 
ciations organized  in  the  United  States  for  the  encom'agement  of  small-arms 
target  practice:  Provided  further,  That  a  detailed  report  shall  be  made  to  Con- 
gress on  the  first  day  of  each  regular  session  of  the  sales  of  any  war  supplies, 
materiel,  lands,  factories,  or  buildings,  and  equipment  made  under  the  authority 
contained  in  this  or  any  other  Act,  except  sales  made  to  any  foreign  State  or 
Government  engaged  in  war  against  any  Government  with  wliich  the  United 
States  is  at  war,  showing  the  character  of  the  articles  sold,  to  whom  sold,  the 
price  received  therefor,  and  the  purpose  for  which  sold  *  *  *  — (49  Stat,, 
850,  chap.  143.) 


purposes  of  the  original  appropriation. 
The  said  clause  was  expressly  repealed  by 
act  of  February  25,  1919,  section  3  (40 
Stat.,  1173). 


The  above  provision  was  followed  by  a  clause 
authorizing  the  deposit  of  proceeds  of 
any  such  sales  to  the  credit  of  the  appro- 
priation from  which  the  cost  of  the  prop- 
erty was  paid,  and  the  use  thereof  for  the 

[1918,  July  9.  Medals  and  decorations,  interchanged  between  United  States 
and  foreign  military  forces.]  That  American  citizens  who  have  received,  since 
August  first,  nineteen  hundred  and  fourteen,  decorations  or  medals  for  dis- 
tinguished service  in  the  armies  or  in  connection  with  the  field  service  of  those 
nations  engaged  in  war  against  the  Imperial  German  Government,  shall,  on 
entering  the  military  service  of  the  United  States,  be  permitted  to  wear  such 
medals  or  decorations. 


1516 


PL  3.  STATUTES  AT  LARGE.  Jvdj  9,  1918. 

That  any  and  all  members  of  the  military  forces  of  the  United  States 
serving  in  the  present  war  be,  and  they  are  hereby,  permitted  and  authorized 
to  accept  during  the  present  war  or  within  one  year  thereafter,  from  the  Gov- 
ernment of  any  of  the  countries  engaged  in  war  with  any  country  with  which 
the  United  States  is  or  shall  be  concurrently  likewise  engaged  in  war,  such 
decorations,  when  tendered,  as  are  conferred  by  such  Government  upon  the 
members  of  its  own  military  forces;  and  the  consent  of  Congress  required 
therefor  by  clause  eight  of  section  nine  of  Article  I  of  the  Constitution  is  hereby 
expressly  granted:  Provided,  That  any  officer  or  enlisted  man  of  the  military 
forces  of  the  United  States  is  hereby  authorized  to  accept  and  wear  any  medal 
or  decoration  heretofore  bestowed  by  the  Government  of  any  of  the  nations 
concurrently  engaged  with  the  United  States  in  the  present  war. — (40  Stat., 
872,  chap.  i43.) 

That  the  President  is  authorized,  under  regulations  to  be  prescribed  by 
him,  to  confer  such  medals  and  decorations  as  may  be  authorized  in  the  mili- 
tary service  of  the  United  States  upon  officers  and  enlisted  men  of  the  military 
forces  of  the  countries  concurrently  engaged  with  the  United  States  in  the 
present  war.— (40  Stat.,  872-873,  chap.  143.) 

See  acts  of  January  31,  1881,  sections  2  and  3  Applicable     to     the     Navy. — The    word 

(21  Stat.,  604),  July  1,  1918  (40  Stat.,  821),  "military"  as  used  in  the  above  paragraphs 

and  February  4,  1919  (40  Stat.,  1056);  see  includes  the  Navy.     (See  31  Op.  Atty.  Gen., 

also  notes  to  section  1407,  Revised  Statutes,  445,  and  file  9644-55,  Navy  Dept.) 
and    Constitution,    article    I,    section    9, 
clause  8. 

[1918,  July  9.  Interdepartmental  Social  Hygiene  Board;  protection  of  naval 
forces  from  venereal  diseases.]  That  there  is  hereby  created  a  board  to  be 
known  as  the  Interdepartmental  Social  Hygiene  Board,  to  consist  of  the  Secre- 
tary of  War,  the  Secretary  of  the  Navy,  and  the  Secretary  of  the  Treasury  as 
ex  officio  members,  and  of  the  Surgeon  General  of  the  Army,  the  Surgeon 
General  of  the  Navy,  and  the  Surgeon  General  of  the  Public  Health  Service, 
or  of  representatives  designated  by  the  Secretary  of  War,  the  Secretary  of  the 
Navy,  and  the  Secretary  of  the  Treasury,  respectively.  The  duties  of  the 
board  shall  be:  (1)  To  recommend  rules  and  regulations  for  the  expenditure 
of  moneys  allotted  to  the  States  under  section  five  of  this  chapter;  (2)  to  select 
the  institutions  and  organizations  and  fix  the  allotments  to  each  institution 
under  said  section  five;  (3)  to  recommend  to  the  Secretary  of  the  Treasury, 
the  Secretary  of  War,  and  the  Secretary  of  the  Navy  such  general  measures 
as  will  promote  correlation  and  efficiency  in  carrying  out  the  purposes  of  this 
chapter  by  their  respective  departments ;  and  (4)  to  direct  the  expenditure  of 
the  sum  of  $100,000  referred  to  in  the  last  paragraph  of  section  seven  of  this 
chapter.  The  board  shall  meet  at  least  quarterly,  and  shall  elect  annually  one 
of  its  members  as  chairman,  and  shall  adopt  rules  and  regulations  for  the  con- 
duct of  its  business. 

Sec.  2.  That  the  Secretary  of  War  and  the  Secretary  of  the  Navy  are 
hereby  authorized  and  directed  to  adopt  measures  for  the  purpose  of  assisting 
the  various  States  in  caring  for  civilian  persons  whose  detention,  isolation, 
quarantine,  or  commitment  to  institutions  may  be  found  necessary  for  the 
protection  of  the  military  and  naval  forces  of  the  United  States  against  venereal 
diseases.     *     *     *.— (40  Stat.,  886,  chap.  143.) 

1517 


July  9,  1918.  Pt.S.  STATUTES  AT  LARGE. 

Sec.  5.  That  there  is  hereby  appropriated,  out  of  any  money  in  the  Treas- 
ury not  otherwise  appropriated,  the  sum  of  $1,000,000,  to  be  expended  under 
the  joint  direction  of  the  Secretary  of  War  and  the  Secretary  of  the  Navy  to 
carry  out  the  provisions  of  section  two  of  this  chapter:  Provided,  That  the 
appropriation  herein  made  shall  not  be  deemed  exclusive,  but  shall  be  in  addi- 
tion to  other  appropriations  of  a  more  general  character  which  are  applicable 
to  the  same  or  similar  purposes.     *     *     * 

Sec.  8.  That  the  terms  ''State"  and  "States,"  as  used  in  this  chapter, 
shall  be  held  to  include  the  District  of  Columbia.— (40  Stat.,  887,  chap.  143.) 

[1918,  July  9.  Condemnation  proceedings ;  sale  of  timber  lands,  logs,  etc. ; 
reuse  of  proceeds.]  That  the  act  entitled  "An  Act  to  authorize  condemnation 
proceedings  of  lands  for  military  purposes,"  approved  July  second,  nineteen 
hundred  and  seventeen,  as  amended  by  an  act  approved  April  eleventh,  nine- 
teen hundred  and  eighteen,  be,  and  the  same  is  hereby,  amended,  and  its  pro- 
visions in  all  respects  together  with  all  its  privileges  and  benefits  are  hereby 
extended  to  the  right  of  condemnation  of  standing  or  fallen  timber,  sawmills, 
camps,  machinery,  logging  roads,  rights  of  way,  equipment,  materials,  supplies, 
and  any  works,  property,  or  appliances  suitable  for  the  effectual  production  of 
such  lumber  and  timber  products,  for  the  Army,  Navy,  United  States  Shipping 
Board,  or  the  United  States  Shipping  Board  Emergency  Fleet  Corporation- 
That  the  right  to  institute  such  condemnation  proceedings  is  hereby  conferred 
upon  the  Secretary  of  War,  the  Secretary  of  the  Navy,  and  the  Chairman  of 
the  United  States  Shipping  Board  and  the  United  States  Shipping  Board 
Emergency  Fleet  Corporation,  individually  or  collectively.  Such  right  of 
condemnation  shall  be  exercised  by  such  officials  only  for  the  purpose  of  obtain- 
ing such  property  when  needed  for  the  production,  manufacture,  or  building 
aircraft,  dry-docks,  or  vessels,  their  apparel  or  furniture,  for  housing  of  Govern- 
ment employees  in  connection  with  the  Army,  Navy,  or  the  United  States 
Shipping  Board  and  the  United  States  Shipping  Board  Emergency  Fleet 
Corporation,  and  for  the  procurement  of  materials  and  equipment  for  aircraft, 
dry-docks  and  vessels.  The  jurisdiction  of  such  condemnation  prodeedings  is 
hereby  vested  in  the  District  Courts  of  the  United  States,  where  the  property 
which  is  sought  to  be  condemned  or  any  part  thereof  is  located  or  situated, 
regardless  of  the  value  of  the  same. 

And  the  President  is  hereby  authorized  through  any  department  or  the 
United  States  Shipping  Board  or  said  Fleet  Corporation  to  sell  and  dispose  of 
any  lands  or  interests  in  real  estate  acquired  for  the  production  of  lumber  and 
timber  products,  and  to  sell  any  logs,  manufactured  or  partly  manufactured  or 
otherwise  procured  for  the  Army,  Navy,  or  United  States  Shipping  Board 
Emergency  Fleet  Corporation,  or  resulting  from  such  manufacture  or  procure- 
ment, either  to  individuals,  corporations  or  foreign  states  or  governments, 
at  such  price  as  he  shall  determine  acting  through  his  above  representatives 
selling  or  disposing  of  the  same,  and  the  proceeds  of  such  sale  shall  be  returned 
to  the  appropriations  which  bore  the  expense  of  such  procurement. — (40  Stat., 
888,  chap.  143.) 


See  act  of  July  2,1917  (40  Stat. ,  241) ,  as  amended 
and  reenacted  by  act  of  April  11,  1918  (40 
Stat.,  518-519);  see  also  acts  of  August  1, 


1888  (25  Stat.,  357),  and  June  3, 1916,  sec- 
tion 124  (39  Stat.,  215). 


1518 


Pt.  3.  STATUTES  AT  LARGE.  July  10,  1918. 

[1918,  July  9.  Navigation  regulations;  transportation  of  explosives;  public 
vessels  to  enforce.]  That  in  the  interest  of  the  national  defense,  and  for  the 
better  protection  of  life  and  property  on  said  waters,  the  Secretary  of  War  is 
hereby  authorized  and  empowered  to  prescribe  such  regulations  as  he  may 
deem  best  for  the  use  and  navigation  of  any  portion  or  area  of  the  navigable 
waters  of  the  United  States  or  waters  under  the  jurisdiction  of  the  United 
States  endangered  or  likely  to  be  endangered  by  Coast  Artillery  fire  in  target 
practice  or  otherwise,  or  by  the  proving  operations  of  the  Government  ordnance 
proving  grounds  at  Sandy  Hook,  New  Jersey,  or  at  any  Government  ordnance 
proving  ground  that  maybe  established  elsewhere  on  or  near  such  waters,  and  of 
any  portion  or  area  of  said  waters  occupied  by  submarine  mines,  mine  fields, 
submarine  cables,  or  other  material  and  accessories  pertaining  to  seacoast 
fortifications,  or  by  any  plant  or  facility  engaged  in  the  execution  of  any  public 
project  of  river  and  harbor  improvement;  and  the  said  Secretary  shall  have 
like  power  to  regulate  the  transportation  of  explosives  upon  any  of  said  waters : 
Provided,  That  the  authority  hereby  conferred  shall  be  so  exercised  as  not 
unreasonably  to  interfere  with  or  restrict  the  food  fishing  industry,  and  the 
regulations  prescribed  in  pursuance  hereof  shall  provide  for  the  use  of  such 
waters  by  food  fishermen  operating  under  permits  granted  by  the  War  Depart- 
ment.—(40  Stat.,  892,  chap.  143.) 

Sec.  2.  That  to  enforce  the  regulations  prescribed  pursuant  to  this  chapter, 
the  Secretary  of  War  may  detail  any  public  vessel  in  the  service  of  the  War 
Department,  or,  upon  the  request  of  the  Secretary  of  War,  the  head  of  any 
other  department  may  enforce,  and  the  head  of  any  such  department  is  hereby 
authorized  to  enforce,  such  regulations  by  means  of  any  public  vessel  of  such 
department. 

Sec.  3.  That  the  regulations  made  the  Secretary  of  War  pursuant  to 
this  Chapter  shall  be  posted  in  conspicuous  and  appropriate  places,  designated 
by  him,  for  the  information  of  the  public;  and  every  person  who  and  every 
corporation  which  shall  wilKully  violate  any  regulations  made  by  the  said 
Secretary  pursuant  to  this  Chapter  shall  be  deemed  guilt}^  of  a  misdemeanor, 
and  upon  conviction  thereof  in  any  court  of  competent  jurisdiction  shall  be 
punished  by  a  fine  not  exceeding  $500,  or  by  imprisonment  (in  the  case  of  a 
natural  person)  not  exceeding  six  months,  in  the  discretion  of  the  court. — (40 
Stat.,    893,    chap.    143.) 

See  sections  4233  and  4412,  Revised  Statutes,  March  4,  1909,  sections  217,  232,  and  235 

and  references  thereunder,  as  to  naviga-  (35  Stat.,  1131,  1134,  1135),  as  to  transporta- 

tion laws;  and  see  Criminal  Code,  act  of  tion  of  explosives. 

[1918,  July  10.  Atlanta  penitentiary ;  products  used  by  naval  forces.] 
That  the  Attorney  General  of  the  United  States  is  authorized  and  directed  to 
establish,  equip,  maintain,  and  operate  at  the  United  States  Penitentiary, 
Atlanta,  Georgia,  a  factory  or  factories  for  the  manufacture  of  cotton  fabrics 
to  supply  the  requirements  of  the  War  and  Navy  Departments,  the  Shipping 
Corporation,  cotton  duck  suitable  for  tents  and  other  army  purposes  and  canvas 
for  mail  sacks  and  for  the  manufacture  of  mail  sacks  and  other  similar  mail- 
carrying  equipment  for  the  use  of  the  United  States  Government.  The  factory 
or  factories  shall  not  be  so  operated  as  to  abolish  any  existing  Government 
workshop  or   curtail   the    production   withui   its    present  limits  of  any  such 

1519 


Nov.  4,  1918.  PL  S.  STATUTES  AT  LARGE. 


Government  workshop,  and  the  articles  so  manufactured  shall  be  sold  only  to 
the  Government  of  the  United  States. 

The  Attorney  General  is  hereby  further  authorized  and  directed  to  acquire 
by  purchase  or  condenmation  proceedings  such  tracts  of  land  at  such  points 
as  he  may  determine,  at  a  total  cost  of  not  to  exceed  $200,000,  which  may  be 
cleared,  graded,  and  cultivated.  And  the  Attorney  General  is  authorized  to 
employ  the  inmates  of  the  institution  herein  mentioned  under  such  regulations 
as  he  may  prescribe  in  the  work  of  clearing,  grading,  and  cultivation  of  such 
acquired  tracts  of  land.  The  products  of  any  such  agricultural  development, 
including  live  stock,  shall  be  utilized  in  said  penitentiary  or  be  sold  to  the 
Government  of  the  United  States  for  the  use  of  the  military  and  naval  forces 
of  the  United  States.— (40  Stat.,  896,  chap.  144.) 

Sec.  2.  That  articles  so  manufactured  shall  be  sold  at  the  current  market 
prices  as  determined  by  the  Attorney  General  or  his  authorized  agent,  and  all 
moneys  or  reimbursements  received  from  such  sales  shall  be  deposited  to  the 
credit  of  the  workuig  capital  fund  created  by  this  Act. — (40  Stat.,  896-897, 
chap.  144.) 

[1918,  July  18,  sec.  2.  Standardized  screw  threads,  used  by  Navy;  specifi- 
cations in  proposals.]  That  it  shall  be  the  duty  of  said  commission  to  ascer- 
tain and  establish  standards  for  screw  tlireads,  which  shall  be  submitted  to 
the  Secretary  of  War,  the  Secretary  of  the  Navy,  and  the  Secretary  of  Commerce 
for  their  acceptance  and  approval.  Such  standards,  when  thus  accepted  and 
approved,  shall  be  adopted  and  used  in  the  several  manufacturing  plants  under 
the  control  of  the  War  and  Navy  Departments,  and,  so  far  as  practicable,  in 
all  specifications  for  screw  threads  in  proposals  for  manufactured  articles, 
parts,  or  materials  to  be  used  imder  the  direction  of  these  departments. — ''40 
*Stat.,  913,  chap.  156;  40  Stat.,  1291,  chap.  96.) 

This  section  was  reenacted,  without  change,  by  act  of  March  3,  1919  (40  Stat.,  1291). 

[1918,  Aug.  31,  sec.  5.  Wife  of  soldier  or  sailor  in  World  War  eligible  for 

Government  position,]     That  the  wiie  of  a  soldier  or   sailor   serving  in    the 

present  war  shall  not  be  disqualified  for  any  position  or  appointment  under 

the  Government  because  she  is  a  married  woman. —  (40  Stat.,  956,  chap.  166.) 

See  note  to  section  416,  Revised  Statutes. 

[1918,  Oct.  1,  sec.  2.  Navy  medical  department  to  cooperate  in  suppressing 
communicable  diseases.]  That  the  Secretary  of  War,  the  Secretary  of  the 
Navy,  and  the  Secretary  of  the  Treasury  are  authorized  and  directed,  respec- 
tively, to  utilize  jointly  the  personnel  and  facilities  of  the  Medical  Department 
of  the  Army,  the  Medical  Department  of  the  Navy,  and  the  Public  Health 
Service,  so  far  as  possible,  in  aiding  to  combat  and  suppress  the  said  diseases. — 
(40  Stat.,  1008,  chap.  179,  Pub.  Res.  No.  42.) 

The  first  section  of  this  resolution  made  an  appropriation,  available  until  June  30,  1919, 
for  suppression  of  "  Spanish  influenza  and  other  communicable  diseases." 

[1918,  Nov.  4.  Allotments  of  men  missing  in  action.]  For  the  purpose  of  the 
payment  of  allotments  made  by  the  enlisted  men  or  the  payment  of  family  allow- 
ances under  Article  II  of  the  Act  of  October  6,  1917,  as  amended,  an  enlisted 
man  reported  as  missing  in  action  shall  be  considered  as  occupj/ing  a  pay 
status  until  his  actual  status  has  been  determined  by  proper  official  authority  of 

1520 


Medals.  Pt.  3.  STATUTES  AT  LARGE.  Feb.  4,  1919. 

the  department  in  which  the  man  served  or  is  serving :  Provided,  That  payments 
authorized  hereunder  shall  not  continue  for  more  than  one  year. — (40  Stat., 
1024,  chap.  201.) 

See  act  of  October  6,  1917  (40  Stat.,  402-405),  and  amendments  noted  thereunder. 

[1919,  Jan.  12.  Sale  of  uniforms  at  cost  to  naval  oflElcers  and  midshipmen.] 
That  hereafter  uniforms,  accouterments,  and  equipment  shall,  upon  the  request 
of  any  officer  of  the  Navy  or  any  officer  of  the  Marine  Corps  or  any  officer  of 
the  Coast  Guard  while  operating  with  the  Navy  or  any  midshipman  at  the 
Naval  Academy  or  cadets  at  the  Coast  Guard  Academy,  be  furnished  by  the 
Government  at  cost,  subject  to  such  restrictions  and  regulations  as  the  Secre- 
tary of  the  Navy  may  prescribe. —  (40  Stat.,  1054,  chap.  8). 

[1919,  Feb.  4.  Medals  of  honor,  distinguished  service  medals,  and  Navy- 
crosses.]  That  the  President  of  the  United  States  be,  and  he  is  hereby,  authorized 
to  present,  in  the  name  of  Congress,  a  medal  of  honor  to  any  person  who,  while 
in  the  naval  service  of  the  United  States,  shall,  in  action  involving  actual  conflict 
with  the  enemy,  distinguish  himself  conspicuously  by  gallantry  and  intrepidity 
at  the  risk  of  his  life  above  and  beyond  the  call  of  duty  and  without  detri- 
ment to  the  mission  of  his  command  or  the  command  to  which  attached. 

Sec.  2.  That  the  President  be,  and  he  hereby  is,  further  authorized  to 
present,  but  not  in  the  name  of  Congress,  a  distinguished-service  medal  of 
appropriate  design  and  a  ribbon,  together  with,  a  rosette  or  other  device  to  be 
worn  in  lieu  thereof,  to  any  person  who,  while  in  the  naval  service  of  the  United 
States,  since  the  sixth  day  of  April,  nineteen  hundred  and  seventeen,  has 
distinguished,  or  who  hereafter  shaU  distmguish,  liimself  by  exceptionally 
meritorious  service  to  the  Government  in  a  duty  of  great  responsibility. 

Sec.  3.  That  the  President  be,  and  he  hereby  is,  further  authorized  to 
present,  but  not  in  the  name  of  Congress,  a  Navy  cross  of  appropriate  design 
and  a  ribbon,  together  with  a  rosette  or  other  device  to  be  worn  in  lieu  thereof, 
to  any  person  who,  while  in  the  naval  service  of  the  United  States,  since  the 
sixth  day  of  April,  nineteen  hundred  and  seventeen,  has  distinguished,  or  who 
shall  hereafter  distinguish,  himself  by  extraordinary  heroism  or  distinguished 
service  in  the  line  of  his  profession,  such  heroism  or  service  not  being  sufficient 
to  justify  the  award  of  a  medal  of  honor  or  a  distinguished-service  medal. 

Sec.  4.  That  each  enlisted  or  enrolled  person  of  the  naval  service  to  whom 
is  awarded  a  medal  of  honor,  distinguished-service  medal,  or  a  Navy  cross  shall, 
for  each  such  award,  be  entitled  to  additional  pay  at  the  rate  of  $2  per  month 
from  the  date  of  the  distinguished  act  or  service  on  wliich  the  award  is  based, 
and  each  bar,  or  other  suitable  emblem  or  insignia,  in  lieu  of  a  medal  of  honor, 
distinguished-service  medal,  or  Navy  cross,  as  hereinafter  provided  for,  shall 
entitle  him  to  further  additional  pay  at  the  rate  of  S2  per  month  from  the  date 
of  the  distinguished  act  or  service  for  which  the  bar  is  awarded,  and  such 
additional  pay  shall  continue  throughout  his  active  service,  whether  such 
service  shall  or  shall  not  be  continuous. 

Sec.  5.  That  no  more  than  one  medal  of  honor  or  one  distinguished- 
service  medal  or  one  Navy  cross  shall  be  issued  to  any  one  person ;  but  for  each 
succeeding  deed  or  service  sufficient  to  justify  the  award  of  a  medal  of  honor 
or  a  distinguished-service  medal  or  Navy  cross,  respectively,  the  President  may 

1521 


Feb.  4,  1919.  PL  S.  STATUTES  AT  LARGE.  Medals. 

award  a  suitable  bar,  or  otbor  suitable  emblem  or  insignia,  to  be  worn  with  the 
decoration  nnd  tlie  correspon(Hn<i;  rosette  or  other  device — (40  Stat.,  1056, 
chap.  14.) 

Sec.  6.  That  the  Secretary  of  the  Navy  is  hereby  authorized  to  expend 
from  the  appropriation  "Pay  of  the  Navy"  of  the  Navy  Department  so  much 
as  may  be  necessary  to  defray  the  cost  of  the  medals  of  honor,  distinguished- 
service  medals,  and  Navy  crosses,  and  bars,  emblems,  or  insignia  herein  pro- 
vided for,  and  so  much  as  may  be  necessary  to  replace  any  medals,  crosses, 
bars,  emblems,  or  insignia  as  are  herein  or  may  heretofore  have  been  provided 
for:  Provided,  That  such  replacement  shall  be  made  only  in  those  cases  where 
the  medal  of  honor,  distinguished-service  medal,  or  Navy  cross,  or  bar,  emblem, 
or  insignia  presented  under  the  provisions  of  this  or  any  other  Act  shall  have 
been  lost,  destroyed,  or  rendered  unfit  for  use  without  fault  or  neglect  on  the 
part  of  the  person  to  whom  it  was  awarded,  and  shall  be  made  without  charge 
therefor.— (40  Stat.,  1056-1057,  chap.  14.) 

Sec.  7.  That,  except  as  othei-wise  prescribed  herein,  no  medal  of  honor, 
distinguished-service  medal.  Navy  cross,  or  bar  or  other  suitable  emblem  or 
insignia  in  lieu  of  either  of  said  medals  or  of  said  cross,  shall  be  issued  to  any 
person  after  more  than  five  years  from  the  date  of  the  act  or  service  justifying 
the  award  thereof,  nor  unless  a  specific  statement  or  report  distinctl}^  setting 
forth  the  act  or  distinguished  service  and  suggesting  or  recommending  official 
recognition  thereof  shall  have  been  made  by  his  naval  superior  through  official 
channels  at  the  time  of  the  act  or  service  or  within  three  years  thereafter. 

Sec.  8.  That  in  case  an  individual  who  shall  distinguish  himself  dies 
before  the  making  of  the  award  to  which  he  may  be  entitled  the  award  may 
nevertheless  be  made  and  the  medal  or  cross  or  the  bar  or  other  emblem  or 
insignia  presented  within  five  years  from  the  date  of  the  act  or  service  justifying 
the  award  thereof  to  such  representative  of  the  deceased  as  the  President  may 
designate:  Provided,  That  no  medal  or  cross  or  no  bar  or  other  emblem  or 
insignia  shall  be  awarded  or  presented  to  any  individual  or  to  the  representative 
of  any  individual  whose  entire  service  subsequent  to  the  time  he  distinguished 
himself  shall  not  have  been  honorable :  Provided  further.  That  in  cases  of  persons 
now  in  the  naval  service  for  whom  the  award  of  the  medal  of  honor  has  been 
recommended  in  full  com.pliance  with  then  existing  regulations,  but  on  account 
of  services  which,  though  insufficient  fully  to  justify  the  award  of  the  medal 
of  honor,  appears  to  have  been  such  as  to  justify  the  award  of  the  dis- 
tinguished-service medal  or  Navy  cross  hereinbefore  provided  for,  such  cases 
may  be  considered  and  acted  upon  under  the  provisions  of  this  Act  authorizing 
the  award  of  the  distinguished-service  medal  and  Navy  cross  notwithstanding 
that  said  services  may  have  been  rendered  more  than  five  years  before  said 
cases  shall  have  been  considered  as  authorized  by  this  proviso,  but  all  con- 
sideration or  any  action  upon  any  of  said  cases  shall  be  based  exclusively 
upon  official  records  now  on  file  in  the  Navy  Department. 

Sec.  9.  That  the  President  be,  and  he  hereby  is,  authorized  to  delegate, 
under  such  conditions,  regulations,  and  limitations  as  he  shall  prescribe,  to 
flag  officers  who  are  commanders  in  chief  or  commanding  on  important  inde- 
pendent duty  the  power  conferred  upon  him  by  this  Act  to  award  the  Navy 
cross;    and  he  is  further  authorized  to  make  from  time  to  time  any  and  all 

1522 


Pt.  .3.  STATUTES  AT  LARGE.  Feb.  24,  1919. 

rules,  regulations,  and  orders  which  he  shall  deem  necessary  to  carry  into  effect 
the  provisions  of  this  Act  and  to  execute  the  full  purpose  and  intention  thereof. — 
(40  Stat.,  1057,  chap.  14.) 


See  note  to  section  1407,  Revised  Statutes, 
joint  resolution  of  May  4,  1898  (30  Stat., 
741),  and  acts  of  March  3,  1915  (38  Stat., 
931),  April  27,  1916  (39  Stat.,  53),  and  July 
9, 1918  (40  Stat.,  872). 


The  words  "naval  superior"  in  section  7 
of  this  act  include  the  Secretary  of  the  Na^'y, 
and  are  not  limited  to  officers  of  the  Navy  in 
immediate  command  of  a  naval  force  in  which 
the  special  act  or  8er^ice  deser\'ing  recognition 
occurs.     (File  9644-350,  Jan.  22,  1920.) 

[1919,  Feb.  24.  United  States  bonds  accepted  in  lieu  of  sureties.]  That 
wherever  by  the  laws  of  the  United  States  or  regulations  made  pursuant  thereto, 
any  person  is  required  to  furnish  any  recognizance,  stipulation,  bond,  guaranty, 
or  undertaking,  hereinafter  called  "'penal  bond,"  with  surety  or  sureties,  such 
person  may,  in  lieu  of  such  surety  or  sureties,  deposit  as  security  with  the 
official  having  authority  to  approve  such  penal  bond,  United  States  Liberty 
bonds  or  other  bonds  of  the  United  States  in  a  sum  equal  at  their  par  value 
to  the  amount  of  such  penal  bond  required  to  be  furnished,  together  with  an 
agreement  authorizing  such  official  to  collect  or  sell  such  bonds  so  deposited 
in  case  of  any  default  in  the  performance  of  any  of  the  conditions  or  stipulations 
of  such  penal  bond.  The  acceptance  of  such  United  States  bonds  in  lieu  of 
surety  or  sureties  required  by  law  shall  have  the  same  force  and  eft'ect  as  indi- 
vidual or  corporate  sureties,  or  certified  checks,  bank  drafts,  post-office  money 
orders,  or  cash,  for  the  penalty  or  amount  of  such  penal  bond.  The  bonds 
deposited  hereunder,  and  such  other  United  States  bonds  as  may  be  substituted 
therefor  from  time  to  time  as  such  security,  may  be  deposited  with  the  Treasurer, 
or  an  Assistant  Treasurer  of  the  United  States,  a  Government  depository. 
Federal  Reserve  bank,  or  member  bank,  which  shall  issue  receipt  therefor, 
describing  such  bonds  so  deposited.  As  soon  as  security  for  the  performamce 
of  such  penal  bond  is  no  longer  necessary,  such  bonds  so  deposited,  shall  be 
returned  to  the  depositor:  Provided,  That  in  case  a  person  or  persons  supplying 
a  contractor  with  labor  or  material  as  provided  by  the  Act  of  Congress,  approved 
February  24,  1905  (33  Stat.,  811),  entitled  '"An  Act  to  amend  an  Act  approved 
August  thirteenth,  eighteen  hundred  and  ninety-four,  entitled  'An  Act  for  the 
protection  of  persons  furnishing  materials  and  labor  for  the  construction  of 
public  works,' "  shall  file  with  the  obligee,  at  any  time  after  a  default  in  the 
performance  of  any  contract  subject  to  said  Acts,  the  application  and  affidavit 
therein  provided,  the  obligee  shall  not  deliver  to  the  obligor  the  deposited 
bonds  nor  any  surplus  proceeds  thereof  until  the  expiration  of  the  time  limited 
by  said  Acts  for  the  institution  of  suit  by  such  person  or  persons,  and,  in  case 
suit  shall  be  instituted  within  such  time,  shall  hold  said  bonds  or  proceeds 
subject  to  the  order  of  the  court  having  jurisdiction  thereof:  Provided  further, 
That  nothing  herein  contained  shall  affect  or  impair  the  priority  of  the  claim 
of  the  United  States  against  the  bonds  deposited  or  any  right  or  remedy  granted 
by  said  acts  or  by  this  section  to  the  United  States  for  default  upon  any  obliga- 
tion of  said  penal  bond:  Provided  further,  That  all  laws  inconsistent  with  this 
section  are  hereby  so  modified  as  to  conform  to  the  provisions  hereof:  And 
provided  further,  That  nothing  contained  herein  shall  affect  the  authority  of 
courts  over  the  security,  where  such  bonds  are  taken  as  security  in  judicial 
proceedings,  or  the  authority  of  any  administrative  officer  of  the  United  States 

1523 


Mar.  1,  1919.  Pi.  3.  STATUTES  AT  LARGE. 

to  receive  United  States  bonds  for  security  in  cases  authorized  by  existing  laws. 
The  Secretary  may  prescribe  rules  and  regulations  necessary  and  proper  for 
carrying  this  section  into  efi'ect. — (40  Stat.,  1148-1149,  chap.  18.) 

See  sections  1:^83-1385,  Revised  Statutes,  and  1906    (34    Stat.,    841),    and   section    3719, 

notes  thereto;  see  also  act  of  August  13,  Revised  Statutes. 

1894  (28  Stat.,  278),  as  amended  and  re-  The  word  '"Secretary"  as  iised  in  this  act  is 

enacted  by  act  of  February  24,  1905  (33  defined  by  section  one  thereof  (40  Stat., 

Stat.,  811-812) ;  and  see  act  of  December  11,  1058)  to  mean  the  Secretary  of  the  Treasury. 

[1919,  Feb.  25.  Reinstatement  of  employees  honorably  discharged  from  mili- 
tary service.]  That  all  former  Government  employees  who  have  been  drafted 
or  enlisted  in  the  military  service  of  the  United  States  in  the  war  with  Germany 
shall  be  reinstated  on  application  to  their  former  positions,  if  they  have  re- 
ceived an  honorable  discharge  and  are  qualified  to  perform  the  duties  of  the 
position.— (40  Stat.,  11G4,  chap.  39.) 
See  note  to  section  416,  Re\'ised  Statutes. 

[1919,  Feb.  28.  Uniforms  retained  on  discharge.]  That  any  person  who 
served  in  the  United  States  Army,  Navy,  r>r  Marine  Corps  in  the  present  war 
may,  upon  honorable  discharge  and  return  to  civil  life,  permanently  retain  one 
complete  suit  of  outer  uniform  clothing,  including  the  overcoat,  and  such 
articles  of  personal  apparel  and  equipment  as  may  be  authorized,  respectively, 
by  the  Secretary  of  War  or  the  Secretary  of  the  Navy,  and  may  wear  such 
uniform  clothing  after  such  discharge :  Provided,  That  the  uniform  above  referred 
to  shall  include  some  distinctive  mark  or  insignia  to  be  prescribed,  respectively, 
by  the  Secretary  of  War  or  the  Secretary  of  the  Navy,  such  mark  or  insignia 
to  be  issued,  respectively,  by  the  War  Department  or  Navy  Department 
to  all  enlisted  personnel  so  discharged.  The  word  "Navy"  shall  include  the 
officers  and  enlisted  personnel  of  the  Coast  Guard  who  have  served  with  the 
Navy  during  the  present  war.— (40  Stat.,  1202-1203,  chap.  70.) 

Sec.  2.  That  the  provisions  of  this  Act  shall  apply  to  all  persons  who  served 
in  the  United  States  Army,  Navy,  or  IMarine  Corps  during  the  present  war 
honorably  discharged  since  April  sixth,  nineteen  hundred  and  seventeen.  And 
in  cases  where  such  clothing  and  uniforms  have  been  restored  to  the  Govern- 
ment on  their  discharge  the  same  or  similar  clothing  and  uniform  in  kind  and 
value  as  near  as  may  be  shall  be  returned  and  given  to  such  soldiers,  sailors, 
and  marines.— (40  Stat.,  1203,  chap.  70.) 


provision  for  furnishing  mileage  and  trans- 
portation to  enlisted  men  of  the  Navy  and 
Marine  Corps  on  discharge,  and  to  naval 
reservists  on  release  from  active  service; 
see  the  act  and  section  last  cited. 


See  act  of  June  3,  1916,  section  125  (39  Stat., 

216-217),  and  note  thereto. 
Travel  allowance  on  discharge :  Section  3  of  this 

act  (40  Stat.,  1203),  reenacted  section  126 

of  the  act  approved  June  3,  1916  (39  Stat., 

217),  and  embodied  in  such  reenactment 

[1919,  Mar.  1,  sec.  10.  Public  Buildings  Commission ;  control  of  oflace  space  in 
District  of  Columbia.]  Public  Buildings  Commission:  With  a  view  to  the 
control  and  allotment  of  space  in  owned  or  leased  Government  buildings  in  the 
District  of  Columbia,  a  Public  Buildings  Commission  is  hereby  created  to  be 
composed  of  two  Senators  to  be  appointed  by  the  President  of  the  Senate  and 
two  Members  of  the  House  of  Representatives  to  be  appointed  by  the  Speaker, 
who  shall  serve  thereon  only  so  long  as  they  are  Members  of  Congress,  and  the 
vSuperintendent  of  the  Capitol  Building  and  Grounds,  the  officer  in  charge  of 

1524 


Pt.  3.  STATUTES  AT  LARGE.  Mar.  3,  1919. 

public  buildings  and  grounds,  and  the  Supervising  Architect  or  the  Acting  Super- 
vising Architect  of  the  Treasury  during  any  vacancy  in  said  office.  Said  com- 
mission shall  elect  one  of  its  members  as  chairman  of  the  commission  and  is 
authorized  to  employ  such  expert  clerical  or  other  services  as  it  may  deem 
necessary. 

Any  vacancies  m  said  commission  shall  be  filled  in  the  same  manner  as 
the  original  appointments  were  made. —  (40  Stat.,  1269,  chap.  86.) 

Said  commission  shall  have  the  absolute  control  of  and  the  allotment  of  all 
space  in  the  several  public  buildings  owTied  or  buildings  leased  by  the  United 
States  in  the  District  of  Columbia,  with  the  exception  of  the  Executive  Mansion 
and  office  of  the  President,  Capitol  Building,  the  Senate  and  House  Office 
Buildings,  the  Capitol  powder  plant,  the  buildings  under  the  jurisdiction  of  the 
Regents  of  the  Smithsonian  Institution,  and  the  Congressional  Library  Build- 
ing, and  shall  from  time  to  time  assign  and  allot,  for  the  use  of  the  several 
activities  of  the  Government,  all  such  space. — (40  Stat.,  1270,  chap.  86.) 

See  note  to  section  415,  Revised  Statutes. 

[1919,  Mar.  1,  sec.  11.  Delay  and  waste  in  public  printing ;  restriction  on 
periodicals;  work  to  be  done  at  Government  Printing  Oflolce.]  That  the  Joint 
Committee  on  Printing  shall  have  power  to  adopt  and  employ  such  measures  as, 
in  its  discretion,  may  be  deemed  necessary  to  remedy  any  neglect,  delay, 
duplication,  or  waste  in  the  public  printing  and  binding  and  the  distribution  of 
Government  publications:  Provided,  That  hereafter  no  journal,  magazine, 
periodical,  or  other  similar  publication,  shall  be  printed  and  issued  by  any 
branch  or  officer  of  the  Government  service  unless  the  same  shall  have  been 
specifically  authorized  by  Congress  *  *  *.  That  on  and  after  July  1,  1919, 
all  printing,  binding,  and  blank-book  work  for  Congress,  the  Executive  Office, 
the  judiciary,  and  every  executive  department,  independent  office,  and  estab- 
hshment  of  the  Government,  shall  be  done  at  the  Government  Printing  Office, 
except  such  classes  of  work  as  shall  be  deemed  by  the  Joint  Committee  on  Print- 
ing to  be  urgent  or  necessary  to  have  done  elsewhere  than  in  the  District  of 
Columbia  for  the  exclusive  use  of  any  fi.eld  service  outside  of  said  District. — 
(40  Stat.,  1270,  chap.  86.) 

See  act  of  January  12,  1895  (28  Stat.,  601-624),  and  particularly  sections  80  and  87  (28  Stat., 
621,  622). 

[1919,  Mar.  3.  Census  of  Guam  and  Samoa,  etc.]  That  a  census  of  the  popu- 
lation, agriculture,  manufactures,  forestry  and  forest  products,  and  mines  and 
quarries  of  the  United  States  shall  be  taken  by  the  Director  of  the  Census  in 
the  year  nineteen  hundred  and  twenty  and  every  ten  years  thereafter.  The 
census  herein  provided  for  shall  include  each  State,  the  District  of  Columbia, 
Alaska,  Hawaii,  and  Porto  Rico.  A  census  of  Guam  and  Samoa  shall  be  taken 
in  the  same  year  by  the  respective  governors  of  said  islands  and  a  census  of  the 
Panama  Canal  Zone  by  the  governor  of  the  Canal  Zone  in  accordance  with  plans 
prescribed  or  approved  by  the  Director  of  the  Census. — (40  Stat.,  1291-1292, 
chap.  97.) 

See  note  to  act  of  June  28,  1906  (34  Stat.,  552)  as  to  status  of  Samoa  and  naval  governor 
thereof. 


1525 


July  11,  1919.  PL  S.  STATUTES  AT  LARGE. 

[1919,  Mar.  3,  sec.  6.  Preference  to  discharged  soldiers  and  sailors  in  Gov- 
ernment employment.]  *  *  *  That  hereafter  in  making  appointments  to 
clerical  and  other  positions  in  the  Executive  branch  of  the  Government  in  the 
District  of  Colmnbia  or  elsewliere  preference  shall  be  given  to  honorably  dis- 
charged soldiers,  sailors,  and  marines,  and  widows  of  such  and  to  the  wives  of 
injured  soldiers,  sailors  and  marines  who  themselves  are  not  qualified,  but  whose 
\vives  are  qualified  to  hold  such  positions. — (40  Stat.,  1293,  chap.  97;  41  Stat., 
37,  chap.  6.) 

This  section  was  expressly  amended  and  reen-       See  note  to  section  416,  Revised  Statutes, 
acted  to  read  as  above  by  act  of  July  11, 
1919  (41  Stat.,  37). 

[1919,  Mar.  3,  sec.  7.  Transfer  of  employees  to  Census  Office;  reinstatement.] 

*  *  *  That  employees  in  other  branches  of  the  departmental  classified 
service  who  have  had  previous  experience  in  census  work  may  be  transferred 
without  examination  to  the  Census  Oflice  to  serve  during  the  whole  or  a  part 
of  the  decennial  census  period,  and  at  the  end  of  such  service  the  employees 
so  transferred  shall  be  eligible  to  appointment  to  positions  in  any  department 
held  by  them  at  date  of  transfer  to  the  Census  Office  without  examination,  but 
no  employee  so  transferred  shall  within  one  year  after  such  transfer  receive 
liigher  salary  than  he  is  receiving  at  the  time  of  the  transfer  *  *  *. — -(40 
Stat.,  1294,  chap.  97.) 

[1919,  Mar.  3,  sec.  3.  Transfer  of  lands,  etc.,  to  the  Public  Health  Service.] 

*  *  *  "Yhe  President  is  authorized  to  direct  the  transfer  to  the  Treasury 
Department  of  the  use  of  such  lands  or  parts  of  lands,  buildings,  fixtures,  appli- 
ances, furnishings,  or  furniture  under  the  control  of  any  other  department  of  the 
Government  not  required  for  the  purposes  of  such  department  and  suitable  for 
the  uses  of  the  Pubhc  Health  Service.— (40  Stat.,  1303,  chap.  98.) 

See  section  418,  Revised  Statutes,  and  note  thereto;  and  see  act  of  March  4,  1921  (41  Stat., 
1365). 

[1919,  July  11,  sec.  6.  Interchange  of  supplies  between  departments.]  Tliat 
the  heads  of  the  several  executive  departments  and  other  responsible  officials, 
in  expending  appropriations  contained  in  this  or  any  other  Act,  so  far  as  possible 
shall  purchase  material,  supplies,  and  equipment,  when  needed  and  funds  are 
available,  from  other  services  of  the  Government  possessing  material,  supplies, 
and  ecjuipment  no  longer  required  because  of  the  cessation  of  war  activities. 
It  shall  be  the  duty  of  the  heads  of  the  several  executive  departments  and  other 
officials,  before  purchasing  any  of  the  articles  described  herein,  to  ascertain  from 
the  other  services  of  the  Government  whether  they  have  articles  of  the  character 
described  that  are  serviceable.  And  articles  purchased  by  one  service  from 
another,  if  the  same  have  not  been  used,  shall  be  paid  for  at  a  reasonable  price 
not  to  exceed  actual  cost,  and  if  the  same  have  been  used,  at  a  reasonable  price 
based  upon  length  of  usage.  The  various  services  of  the  Government  are  au- 
thorized to  sell  such  articles  under  the  conditions  specified,  and  the  proceeds  of 
such  sales  shall  be  covered  into  the  Treasury  as  a  miscellaneous  receipt:  Pro- 
vided, That  this  section  shall  not  be  construed  to  amend,  alter,  or  repeal  the 
Executive  order  of  December  3,  1918,  concerning  the  transfer  of  office  material, 
supplies,  and  ecjuipment  in  the  District  of  Columbia  falling  into  disuse  because 
of  the  cessation  of  war  activities. — (41  Stat.,  67-68,  chap.  6.) 

See  acts  of  Julv  11.  1919  (41  Stat.,  132,  chap.  9),  May  21,  1920,  section  7  (41  Stat.,  613), 
and  July  li,  1919  (41  Stat.,  130). 

1526 


Ft.  3.  STATUTES  AT  LARGE.  July  11,  1919. 

[1919,  July  11,  sec.  6.  Influencing  legislation.]  That  hereafter  no  part  of 
the  money  appropriated  by  this  or  any  other  Act  shall,  in  the  absence  of  express 
authorization  by  Congress,  be  used  directl}'  or  indirectly  to  pay  for  any 
personal  service,  advertisement,  telegi'am,  telephone,  letter,  printed  or  written 
matter,  or  other  device,  intended  or  designed  to  influence  in  any  manner  a 
Member  of  Congress  to  favor  or  oppose,  by  vote  or  otherwise,  any  legislation 
or  appropriation  by  Congress,  whether  before  or  after  the  introduction  of  any 
bill  or  resolution  proposing  such  legislation  or  appropriation;  but  this  shall  not 
prevent  officers  and  employees  of  the  United  States  from  communicating  to 
Members  of  Congress  on  the  request  of  any  Member  or  to  Congress,  through 
the  proper  official  channels,  requests  for  legislation  or  appropriations  which 
they  deem  necessary  for  the  efficient  conduct  of  the  public  business. 

Any  officer  or  employee  of  the  United  States  who,  after  notice  and  hearing 
by  the  superior  officer  vested  with  the  power  of  removing  him,  is  found  to  have 
violated  or  attempted  to  violate  this  section,  shall  be  removed  by  such  superior 
officer  from  office  or  employment.  Any  officer  or  employee  of  the  United 
States  who  violates  or  attempts  to  violate  this  section  shall  also  be  guilty  of  a 
misdemeanor  and  on  conviction  thereof  shall  be  punished  by  a  fine  of  not  more 
than  $500  or  by  imprisonment  for  not  more  than  one  year,  or  both.— (41  Stat., 
68,  chap.  6.) 

See  note  to  Constitution.  Article  I,  section  1;  and  see  act  of  August    24,  1912,  section  6 
(37  Stat.,  555);  see    also  article  95,  Navy  Regulations,  1920. 

[1919,  July  11,  Transfer  of  Army  ammunition  to  other  departments.]  That 
the  Secretary  of  War  be,  and  he  is  hereby,  authorized  to  turn  over  on  request 
from  other  executive  departments  of  the  Government,  in  his  discretion,  from 
time  to  time,  without  charge  therefor,  such  ammunition,  explosives,  and  other 
ammunition  components  as  may  prove  to  be  or  shall  become  surplus  or  unsuit- 
able for  the  purposes  of  the  War  Department  and  as  shall  be  suitable  for  use  in 
the  proper  activities  of  other  executive  departments. — (41  Stat.,  130,  chap.  8.) 

See  acts  of  July  11,  1919,  section  5  (41  Stat.,  67-68,  chap.  6);  July  11,  1919  (41  Stat.,  132, 
chap.  9);  and  May  21,  1920,  section  7  (41  Stat.,  613). 

[1919,  July  11.  Claims  for  damage  to  private  property.]  That  the  Secretary 
of  the  Navy  is  authorized  to  consider,  ascertain,  adjust,  determine,  and  pay  the 
amounts  due  in  all  claims  for  damages  (other  than  such  as  are  occasioned  by 
vessels  of  the  Navy),  to  and  loss  of  privately  owned  property,  occurring  subse- 
quent to  April  G,  1917,  where  the  amount  of  the  claim  does  not  exceed  -1500,  for 
which  damage  or  loss  men  in  the  naval  service  or  Marine  Corps  are  found  to  be 
responsible,  all  payments  in  settlement  of  said  claims  to  be  made  out  of  the 
appropriation  "Pay,  miscellaneous":  Provided  further,  That  all  chiims  ad- 
justed under  this  authority  during  any  fiscal  year  shall  be  reported  in  detail  to 
the  Congress  by  the  Secretary  of  the  Navy. —  (41  Stat.,  132,  chap.  9.) 

See  act  of  June  24,  1910  (36  Stat.,  607),  and  note  thereto. 

[1919,  July  11.  Navy  disbursing  officers  relieved  from  losses,  etc.]  The 
accounting  officers  of  the  Treasury  shall  relieve  any  disl)ursing  officer  of  the 
Navy  charged  with  responsibility  on  account  of  loss  or  deficiency  while  in  the 


1527 


July  11,  1919.  PL  S.  STATUTES  AT  LARGE. 

line  of  his  duty,  of  Government  funds,  vouchers,  records,  or  papers,  in  his 
charge,  where  such  loss  or  deficiency  occurred  without  fault  or  negligence  on 
the  part  of  said  officer:  Provided,  That  the  Secretary  of  the  Navy  shall  have 
determined  that  the  officer  was  in  the  line  of  his  duty,  and  the  loss  or  deficiency 
occurred  without  fault  or  negligence  on  his  part:  Provided  further,  That  the 
determination  by  the  Secretary  of  the  Navy  of  the  aforesaid  questions  shall  be 
conclusive  upon  the  accounting  officers  of  the  Treasury:  Provided  further, 
That  all  cases  of  relief  granted  under  this  authority  during  any  fiscal  year  shall 
be  reported  in  detail  to  the  Congress  by  the  Secretary  of  the  Nav3^ — (41  Stat., 
132,  chap.  9.) 


See  Judicial  Code,  act  of  March  3,  1911,  section 

14.5(36  Stat..  11  ;?6-1137). 
A  pro\"ision  for  relief  of  disbursing  officers  from 

responsibility  for  illegal  pajonents  made 


during  "the  period  of  the  present  emer- 
gency," was  contained  in  this  act  (41  Stat., 
153),  but  is  omitted  as  temporary. 


[1919,  July  11.  Interchange  of  supplies  between  Army  and  Navy.]  The  in- 
terchange without  compensation  therefor,  of  military  stores,  supplies,  and 
equipment  of  every  character,  including  real  estate  o%\Tied  by  the  Government, 
is  hereby  authorized  between  the  Army  and  the  Navy  upon  the  request  of  the 
head  of  one  service  and  with  the  approval  of  the  head  of  the  other  service. — 
(41  Stat.,  132,  chap.  9.) 

See  acts  of  August  24, 1912  (37  Stat.,  589),  March 
4,  1915  (38  Stat.,  1084),  July  8,  1918  (40 
Stat.,  817),  July  9,  1918  (40  Stat.,  850),  July 
11,  1919,  section  5  (41  Stat.,  67-68,  chap. 
6),  July  11,  1919  (41  Stat.,  130,  chap.  8), 

[1919,  July  11.  Authorized  enlisted  strength,  Navy,  increased  during  na- 
tional emergency.]  The  President  is  hereby  authorized,  whenever  in  his  judg- 
ment a  sufficient  national  emergency  exists,  to  increase  the  authorized  enlisted 
strength  of  the  Navy  to  191,000  men.— (41  Stat.,  137-138,  chap.  9.) 


July  19,  1919,  section  5  (41  Stat.,  233),  and 
May  21, 1920,  section  7  (41  Stat.,  613).  See 
also  act  of  March  4,  1911  (36  Stat.,  1279), 
and  references  thereunder. 


The  omitted  portions  of  the  act  (41  Stat.,  137) 
temporarily  increased  the  "total  author- 
ized enlisted  strength  of  the  active  list  of 
the  Navy"  during  the  current  fiscal  year. 


See  note  to  section  1417,  Revised  Statutes,  as  to 
the  authorized  enlisted  strength  of  the 
Navy  under  various  laws;  and  see  particu- 
larly act  of  July  1,  1918  (40  Stat.,  714\ 
which  established  the  permanent  author- 
ized enlisted  strength  of  the  Navy. 

[1919,  July  11.  Permanent  commissioned  and  enlisted  strength  not  affected.] 
That  nothing  herein  shall  be  construed  as  affecting  the  permanent,  commis- 
sioned, or  enlisted  strength  of  the  Regular  Navy  as  authorized  by  existing 
law.— (41  Stat.,  138,  chap.  9.) 

The  permanent  commissioned  strength  of  the 
Navv  was  established  by  act  of  August  29, 
1916' (39  Stat.,  576-577).  The  permanent 
enlisted  strength  was  established  by  act  of 
July  1,  1918  (40  Stat.,  714);  see  note  to  sec-  year, 

tion  1417,  Revised  Statutes. 

[1919,  July  11.  Naval  Reserve  Force,  active  duty  restricted.]  Members  of 
the  Naval  Reserve  Force  shall  not  hereafter  be  ordered  to  perform  active  duty 
on  shore  of  a  kind  which  is  ordinarily  performed  by  civilians,  and  all  reservists 
now  performing  such  duty  shall  be  relieved  from  such  duty  witliin  thirty  days 
after  the  date  of  approval  of  this  Act. —  (41  Stat.,  138,  chap.  9.) 

See  act  of  August  29,  1916  (39  Stat.,  587-593),  and  notes  thereto,  relating  to  the  Naval  Reserve 
Force. 

1528 


Omitted  portions  of  this  act  (41  Stat.,  137-138\ 
contained  temporary  provisions  dealing 
with  the  commissioned  and  enlisted 
strength  of  the  Navy  for  the  current  fiscal 


Pt.  3.  STATUTES   AT  LARGE.  July  11,  1919. 

[1919,  July  11.  Commissioned  officers,  computations  as  to  numbers,  and 
convening  of  selection  boards.]  The  provision  of  existing  law  which  requires  the 
Secretary  of  the  Navy  to  make  computations  semiannually  as  of  July  1  and 
January  1  of  each  year  and  to  convene  the  boards  to  select  ofRcers  of  the  line 
and  of  the  staff  corps  for  promotion  is  hereby  amended  so  that  said  computa- 
tions shall  be  made  and  said  boards  shall  be  convened  at  least  once  each  year 
and  at  such  times  as  the  Secretary  of  the  Navy  may  direct,  and  the  boards  shall 
recommend  for  promotion  such  number  of  officers  as  may  be  necessary  to  fill 
vacancies  then  existing  and  which  may  occur  during  the  next  period  of  time. — 
(41  Stat.,  139,  chap.  9.) 

See  act  of  August  29,  1916  (39  Stat.,  577,  578),  and  notes  thereto,  as  to  computations  and 
convening  of  selection  board. 

[1919,  July  11.  Pay  of  Navy  not  reduced.]     That  nothing  contained  in  this 

Act  shall  be  construed  to  reduce  the  pay  or  allowances  of  any  commissioned, 

warrant,  or  appointed  officer  or  any  enlisted  man  as  authorized  by  law  for 

such  officer  or  enlisted  man  in  his  present  permanent  status  in  the  Regular 

Navy.— (41  Stat.,  139,  chap.  9.) 

See  notes  to  sections  1556  and  1569,  Revised  Statutes,  as  to  pay  of  officers  and  enlisted  men 
of  the  Navy. 

[1919,  July  11.  Pay  of  warrant  officers.  Navy,  for  foreign  shore  duty.]  War- 
rant officers  of  the  Navy  on  shore  duty  beyond  the  continental  limits  of  the 
United  States  shall,  while  so  serving  and  from  the  time  of  departm-e  from  and 
until  the  time  of  return  to  said  limits  under  orders  to  or  from  such  foreign-shore 
duty,  receive  the  same  pay  as  is  now  or  may  be  authorized  by  law  for  warrant 
officers  on  sea  duty:  Provided,  That  this  paragraph  shall  be  effective  from 
April  6,  1917.— (41  Stat.,  140,  chap.  9.) 

See  note  to  section  1556,  Revised  Statutes,  as  to  pay  of  warrant  officers. 

[1919,  July  11.  Enlisted  men  and  warrant  officers  credited  with  reserve 
service;  membership  of  reservists  in  Naval  Militia.]  Any  enlisted  man  of  the 
Navy  or  IVlarine  Corps  who  has  been  or  may  be  discharged  to  enable  him  to 
accept  appointment  as  a  commissioned  or  warrant  officer  in  the  Naval  Reserve 
Force  or  IVIarine  Corps  Reserve,  and  who  reenlists  in  the  Navy  or  IMarine  Corps 
after  the  termination  of  his  reserve  service,  shall  be  entitled,  in  computing 
service  for  retirement,  to  credit  for  all  active  reserve  service ;  and  if  he  reenlists 
in  the  Navy  or  IVIarine  Corps  within  four  or  three  months,  respectively,  from 
the  date  of  the  termination  of  his  service  as  an  officer  of  the  Reserve  he  shall  be 
restored  to  the  grade  or  rank  held  by  him  before  being  discharged  to  accept 
such  commission  or  warrant,  and  his  service  in  the  Regular  Navy  or  IMarine 
Corps,  including  his  active  service  in  the  Naval  Reserve  Force  or  IMarine  Corps 
Reserve,  shall  be  regarded  as  continuous  for  pm^poses  of  continuous-service 
pay:  Provided,  That  any  warrant  officer  in  the  Navy  or  IVIarine  Corps  and  any 
pay  clerk  in  the  IMarine  Corps  who  has  accepted  or  who  may  hereafter  accept 
appointment  as  a  commissioned  officer  in  the  Naval  Reserve  Force  or  IMarine 
Corps  Reserve  shall  be  entitled,  upon  the  termination  of  his  appointment  as  a 
commissioned  officer  in  the  Reserve,  to  revert  to  his  former  status  as  a  warrant 
officer  in  the  Navy  or  Marine  Corps,  or  as  a  pay  clerk  in  the  Marine  Corps,  and 
shall  be  entitled  to  count  all  active  reserve  service  for  purposes  of  longevity 
pay  and  retirement:  Provided,  That  no  part  or  parts  of  any  existing  laws 

1529 


July  11,  1919.  PL  S.  STATUTES  AT  LARGE. 

shall  be  construed  as  having  discharged  from  the  Naval  Militia  of  any  State, 
Territory,  or  the  District  of  Columbia,  those  members  of  the  National  Naval 
Volunteers  who  were  transferred  to  the  Naval  Reserve  Force  by  authority  of 
the  Act  of  Congress  making  appropriations  for  the  Naval  Service  which  became 
a  law  on  July  1,  1918;  nor  to  prevent  members  of  the  Naval  Reserve  Force  from 
being  or  becoming  membei-s  of  the  Naval  Militia  of  any  State,  Territory,  or  the 
District  of  Columbia:  Provided,  That  such  membership  in  the  Naval  Militia 
shall  not  interfere  with  the  discharge  of  duties  bv  such  members  thereof  who 
are  in  the  Naval  Reserve  Force. — (41  Stat.,  141,  chap.  9.) 


See  notes  to  sections  1556,  1569,  1573,  and  1612, 
Revised  Statutes,  as  to  pay  of  warrant  offi- 
cers and  enlisted  men  of  the  Navy  and 
Marine  Corps.  See  sections  1443,  Revised 
Statutes,  and  references  thereunder,  as  to 
retirement  of  warrant  officers  in  the  Navy; 
see  section  1622,   Revised  Statutes,   and 


note  thereto,  as  to  retirement  of  officers  and 
enlisted  men  of  the  Marine  Corps;  see  act 
of  March  3,  1899,  section  17  (30  Stat.,  1008), 
and  references  thereunder  as  to  retirement 
of  enlisted  men  of  the  Navy;  and  see  act 
of  August  29,  1916  (39  Stat.,  611),  as  to 
warrant  officers  in  the  Marine  Corps. 


[1919,  July  11.  Reinstatement  of  employees  who  served  in  war  with  Ger- 
many.] That  all  former  Government  employees  who  have  entered  the  military 
or  naval  service  of  the  United  States  in  the  war  with  the  German  Government 
shall  be  reinstated  on  application  to  their  former  positions  if  they  have  received 
an  honorable  discharge  and  are  qualified  to  perform  the  duties  of  the  position. — 
(41  Stat.,  142,  chap.  9.) 

See  note  to  section  416,  Revised  Statutes. 

[1919,  July  11.  Appropriations  for  maintenance  of  training  stations.]  The 
appropriations  "Maintenance,  Bm-eau  of  Yards  and  Docks,"  and  ''Repairs 
and  Preservation"  shall  be  available  for  the  maintenance  of  naval  trainins: 
stations  where  the  regular  appropriations  for  the  maintenance  thereof  are  found 
to  be  insufficient. — (41  Stat.,  145,  chap.  9.) 

[1919,  July  11.  Supply  Corps.]  That  hereafter  the  Pay  Corps  shall  be  called 
the  Supply  Corps. — (41  Stat.,  147,  chap.  9.) 

[1919,  July  11.  Fuel  for  Navy  in  District  of  Columbia.]  Hereafter  the  pro- 
visions of  the  Sundry  Civil  Act,  approved  July  1,  1918,  providing  for  the 
establishment  of  a  Government  fuel  yard  in  the  District  of  Columbia,  shall 
not  apply  to  the  fuel  required  for  the  Naval  Establishment,  except  the  naval 
hospital,  in  the  District  of  Columbia. — (41  Stat.,  148,  chap.  9.) 

See  acts  of  July  1,  1918  (40  Stat.,  672-673),  and  June  5,  1920  (41  Stat.,  913). 

[1919,  July  11.  Naval  Academy  Band.]  The  Naval  Academy  Band  shall 
hereafter  consist  of  one  leader,  with  pay  and  allowances  of  first  lieutenant  in 
the  Marine  Corps;  one  second  leader,  with  a  base  pay  of  $81  per  month;  forty- 
five  musicians,  first  class,  with  a  base  pay  of  $51  per  month;  twenty-seven 
musicians,  second  class,  with  a  base  pay  of  $44  per  month;  one  drum  major, 
with  a  base  pay  of  $57.20  per  month;  and  the  said  leader  of  the  band,  second 
leader  of  the  band,  drum  major  of  the  band,  and  the  enlisted  musicians  of  the 
band  shall  be  entitled  to  the  same  benefits  in  respect  to  pay,  emoluments, 
and  retirement  arising  from  longevity,  reenlistment,  and  length  of  service 
as  are  or  may  hereafter  become  applicable  to  other  officers  or  enlisted  men  of 
the  Navy.— (41  Stat.,  152,  chap.  9.) 
See  act  of  April  12,  1910  (36  Stat.,  297),  and  tion  1569  Revised  Statutes,  as  to  temporary 


references  thereunder;  and  see  note  to  sec 


increases  in  pay  of  enlisted  men. 


1530 


and  the  Marine  Corps  Reserv^e  shall,  as  soon 
as  practicable  and  in  no  event  later  than 
thirty  days  after  the  date  of  approval  of 
this  Act,  be  placed  on  inactive  duty." 
See  also  act  of  June  4,  1920,  section  2  (41 
Stat.,  834),  forbidding  enrollments  in  the 
Naval  Reserve  Force  except  for  general 
service. 


Ft.  S.  STATUTES  AT  LARGE.  July  19,  1919. 

[1919,  July  11.  Women  enlisted  in  naval  service.]  That  the  words  "enlisted 
men,"  as  contained  in  prior  appropriation  Acts,  shall  not  be  construed  to 
deprive  women,  enlisted  or  enrolled  in  the  naval  service,  of  the  pay,  allowances, 
gratuities,  and  other  benefits  granted  by  law  to  the  enlisted  personnel  of  the 
Navy  and  Marine  Corps. — (41  Stat.,  152,  chap.  9.) 

See  section  1,  Revised  Statutes,  as  to  "words 
imparting  the  masculine  gender ''  being  ap- 
plied to  females;  and  see  act  of  October  6, 
1917,  section  22  (40  Stat.,  401-402),  under 
"Definitions." 

By  a  temporary  proWsion  in  this  act  (41  Stat., 
138\  it  was  required  that  ''female  members, 
except  nurses,  of  the  Naval  Reserve  Force 

[1919,  July  11.  Rations,  Marine  Corps.]  That  hereafter,  except  when  de- 
tached by  the  President  of  the  United  States  for  duty  with  the  Army,  enlisted 
men  of  the  Marine  Corps  shall  be  entitled  to  the  same  allowance  for  rations 
as  are  enlisted  men  of  the  Navy,  under  such  rules  and  regulations  as  may  be 
prescribed  by  the  Secretary  of  the  Navy. — (41  Stat.,  154,  chap.  9.) 

See  notes  to  sections  1615  and  1621,  Re%'ised  Statutes. 

[1919,  July  11.  Sale  of  uniforms  to  marine  officers.]  That  hereafter  this 
appropriation  shall  be  available  for  the  purchase  of  uniforms,  accouterments, 
and  equipment  for  sale  at  cost  price  to  officers  under  such  regulations  as  the 
Secretary  of  the  Navy  may  prescribe. — (41  Stat.,  154,  chap.  9.) 

This  was  a  pro\T.so  following  appropriations    i  under  ' '  Laws  relating  specifically  to  Marine 

under  the  title,  "Clothing,  Marine  Corps."    ,  Corps,"  subheading,  "Sale  of  subsistence 

See  note  to  section  1612,    Re\'ised   Statutes,    '  stores,  etc." 

[1919,  July  11.  Receipts  of  post  laundries,  Marine  Corps.]  That  hereafter 
the  funds  received  in  payment  for  laundry  work  performed  by  post  laundries 
shall  be  used  to  defray  the  cost  of  operation  of  said  laundries  and  the  receipts 
and  expenditures  shall  be  accounted  for  in  accordance  with  the  methods  pre- 
scribed by  law  and  any  sums  remaining  at  the  end  of  the  fiscal  year  after  such 
cost  of  maintenance  and  operation  have  been  defrayed  shall  be  deposited  in 
the  Treasury  to  the  credit  of  the  appropriation  from  which  the  cost  of  operation 
of  such  plants  is  paid. — (41  Stat.,  155-156,  chap.  9.) 
This  was  a  pro\'iso  following  appropriations  for       See  section  3689,  Revised  Statutes,  and  note 


'Contingent,  Marine  Corps." 


thereto. 


[1919,  July  19,  sec.  3.  Transfer  of  printing  equipment  to  Public  Printer.] 
*  *  *  That  any  officer  of  the  Government  having  machinery,  material, 
equipment  or  supplies  for  printing,  binding,  and  blank  book  work,  including 
Uthography,  photolithography,  and  other  processes  of  reproduction,  which  are 
no  longer  rec{uired  or  authorized  for  his  service,  shall  submit  a  detailed  report 
of  the  same  to  the  Public  Printer,  and  the  Public  Printer  is  hereby  authorized, 
with  the  approval  of  the  Joint  Committee  on  Printing,  to  requisition  such  arti- 
cles of  the  character  herein  described  as  are  serviceable  in  the  Government 
Printing  Office,  and  the  same  shall  be  promptly  dehvered  to  that  office. — (41 
Stat.,  233,  chap.  24.) 


This  was  a  proviso  following  temporary  pro- 
visions relating  to  sales  of  supplies  by  exec- 


utive departments  during  the  current  fiscal 
year,  and  disposition  of  the  proceeds  thereof. 


[1919,  July  19,  sec.  5.  Transfer  of  Army  motor  vehicles  to  other  departments.] 
The  Secretary  of  War  is  authorized  to  transfer  any  unused  and  surplus  motor- 

54641°— 22 97  1531 


Feb.  25,  1920.  Ft.  3.  STATUTES  AT  LARGE. 

propelled  vehicles  and  motor  equipment  of  any  kind,  the  payment  for  same  to 
be  made  as  provided  herein,  to  any  branch  of  the  Government  service  having 
appropriations  available  for  the  purchase  of  said  vehicles  and  equipment: 
Provided,  That  in  case  of  the  transfers  herein  authorized  a  reasonable  price  not 
to  exceed  actual  cost,  and  if  the  same  have  been  used,  at  a  reasonable  price 
based  upon  length  of  usage,  shall  be  determined  upon  and  an  equivalent  amount 
of  each  appropriation  available  for  said  purchase  shall  be  covered  into  the 
Treasury  as  a  miscellaneous  receipt,  and  the  appropriation  in  each  case  reduced 
accordingly:  Provided  further,  That  it  shall  be  the  duty  of  each  official  of  the 
Government  having  such  purchases  in  charge  to  procure  the  same  from  any 
such  unused  or  surplus  stock  if  possible:  Provided  further.  That  hereafter  no 
transfer  of  motor-propelled  vehicles  and  motor  equipment,  unless  specifically 
authorized  by  law,  shall  be  made  free  of  charge  to  any  branch  of  the  Govern- 
ment service. — (41  Stat.,  233,  chap.  24.) 

See  acts  of  July  11,  1919,  section  5  (41  Stat.,  67-68,  chap.  6),  and  Jxily  11,  1919  (41  Stat.,  132, 
chap.  9),  and  references  thereunder. 

[1920,  Feb.  25.  Lease  of  naval  petroleum  reserves,  etc.]  That  deposits  of 
coal,  phosphate,  sodium,  oil,  oil  shale,  or  gas,  and  lands  containing  such  deposits 
owned  by  the  United  States,  including  those  in  national  forests,  but  excluding 
lands  acquired  under  the  Act  known  as  the  Appalachian  Forest  Act,  approved 
March  1,  1911  (Thirty-sixth  Statutes,  page  961),  and  those  in  national  parks, 
and  in  lands  withdrawn  or  reserved  for  military  or  naval  uses  or  purposes, 
except  as  hereinafter  provided,  shall  be  subject  to  disposition  in  the  form  and 
manner  provided  by  this  Act  to  citizens  of  the  United  States,  or  to  any  associa- 
tion of  such  persons,  or  to  any  corporation  organized  under  the  laws  of  the 
United  States,  or  of  any  State  or  Territory  thereof,  and  in  the  case  of  coal,  oil, 
oil  shale,  or  gas,  to  municipalities:  Provided,  That  the  United  States  reserves 
the  right  to  extract  helium  from  all  gas  produced  from  lands  permitted,  leased, 
or  otherwise  granted  under  the  provisions  of  this  Act,  under  such  rules  and 
regulations  as  shall  be  prescribed  by  the  Secretary  of  the  Interior:  Provided 
further,  That  in  the  extraction  of  helium  from  gas  produced  from  such  lands, 
it  shall  be  so  extracted  as  to  cause  no  substantial  delay  in  the  delivery  of  gas 
produced  from  the  well  to  the  purchaser  thereof:  And  provided  further.  That* 
citizens  of  another  country,  the  laws,  customs,  or  regulations  of  which,  deny 
similar  or  like  privileges  to  citizens  or  corporations  of  this  country,  shall  not  by 
stock  ownership,  stock  holding,  or  stock  control,  own  any  interest  in  any  lease 
acquired  under  the  provisions  of  this  Act. — (41  Stat.,  437-438,  chap.  85.) 

Sec.  18.  That  upon  relinquishment  to  the  United  States,  filed  in  the 
General  Land  Office  within  six  months  after  the  approval  of  this  Act,  of  all 
right,  title,  and  interest  claimed  and  possessed  prior  to  July  3,  1910,  and  con- 
tinuously since  by  the  claimant  or  his  predecessor  in  interest  under  the  preexisting 
placer  mining  law  to  any  oil  or  gas  bearing  land  upon  which  there  has  been  drilled 
one  or  more  oil  or  gas  wells  to  discovery  embraced  in  the  Executive  order  of 
withdrawal  issued  September  27,  1909,  and  not  within  any  naval  petroleum 
reserve,  and  upon  payment  as  royalty  to  the  United  States  of  an  amount  equal 
to  the  value  at  the  time  of  production  of  one-eighth  of  all  the  oil  or  gas  already 


1532 


PL  3.  STATUTES  AT  LARGE.  Mar.  9,  1920. 

produced  except  oil  or  gas  used  for  production  purposes  on  the  claim,  or 
unavoidably  lost,  from  such  land,  the  claimant,  or  his  successor,  if  in  possession 
of  such  land,  undisputed  by  any  other  claimant  prior  to  July  1,  1919,  shall  be 
entitled  to  a  lease  thereon  from  the  United  States  for  a  period  of  twenty  years, 
at  a  royalty  of  not  less  than  12^  per  centum  of  all  the  oil  or  gas  produced  except 
oil  or  gas  used  for  production  purposes  on  the  claim,   or  unavoidably  lost 

*  *     *.— (41  Stat.,  443,  chap.  85.) 

All  such  leases  shall  be  made  and  the  amount  of  royalty  to  be  paid  for  oil 
and  gas  produced,  except  oil  or  gas  used  for  production  purposes  on  the  claim, 
or  unavoidably  lost,  after  the  execution  of  such  lease  shall  be  fixed  by  the  Secre- 
tary of  the  Interior  under  appropriate  rules  and  regulations :  Provided,  however, 
That  as  to  all  like  claims  situate  within  any  naval  petroleum  reserve  the  pro- 
ducing wells  thereon  only  shall  be  leased,  together  with  an  area  of  land  suffi- 
cient for  the  operation  thereof,  upon  the  terms  and  payment  of  royalties  for 
past  and  future  production  as  herein  provided  for  in  the  leasing  of  claims. 

*  *     *.— (41  Stat.,  444,  chap.  85.) 

Sec.  35.  *  *  *  That  all  moneys  which  may  accrue  to  the  United  States 
under  the  provisions  of  this  Act  from  lands  within  the  naval  petroleum  reserves 
shall  be  deposited  in  the  Treasury  as  "Miscellaneous  receipts." — (41  Stat., 
450-451,  chap.  85.) 

See  acts  of  August  25,  1914  (38  Stat.,  709),  August  29,  1916  (39  Stat.,  55^560),  and  June  4, 
1920(41  Stat.,  813). 

[1920,  Mar.  6.  Sale  of  naval  supplies  to  personnel  of  Coast  Guard  and  Public 
Health  Service.]  Officers  and  enlisted  men  of  the  Coast  Guard  shall  be  permitte>d 
to  purchase  quartermaster  supplies  from  the  Army,  Navy,  and  Marine 
Corps  at  the  same  price  as  is  charged  the  officers  and  enlisted  men  of  the  Army, 
Navy,  and  Marine  Corps.     *     *     *. —  (41  Stat.,  506,  chap.  94.) 

Hereafter  officers  of  the  Public  Health  Service  may  purchase  quartermaster 
supplies  from  the  Army,  Navy,  and  Marine  Corps  at  the  same  price  as  is  charged 
officers  of  the  Army,  Navy,  and  Marine  Corps. — (41  Stat.,  507,  chap.  94.) 

See  act  of  March  4,  1913  (37  Stat.,  909),  and  references  thereunder. 

[1920,  Mar.  6.  Naval  service,  etc.,  credited  to  ofl5.cers  of  Public  Health 
Service.]  Ofiicers  of  the  Public  Health  Service  shall  be  credited  with 
service  in  the  Army,  Navy,  Marine  Corps,  and  the  Coast  Guard  in  computing 
longevity  pay. — (41  Stat.,  507,  chap. -94.) 

[1920,  Mar.  9,  sec.  10.  Salvage  by  Government  owned  vessels.]  That  the 
United  States,  and  the  crew  of  Siuj  merchant  vessel  owned  or  operated  by  the 
United  States,  or  such  corporation,  shall  have  the  right  to  collect  and  sue  for 
salvage  services  rendered  by  such  vessel  and  crew,  and  any  moneys  recovered 
therefrom  bv  the  United  States  for  its  own  benefit,  and  not  for  the  benefit  of 
the  crew,  shall  be  covered  into  the  United  States  Treasury  to  the  credit  of  the 
department  of  the  Government  of  the  United  States,  or  of  the  United  States 
Shipping  Board,  or  of  such  corporation,  having  control  of  the  possession  or 
operation  of  such  vessel. —  (41  Stat.,  528,  chap.  95.) 

See  sections  1536  and  4642,  Re^dsed  Statutes,  and  acts  of  August  1,  1912  (37  Stat.,  242),  and 
July  1,  1918  (40  Stat.,  705). 


1533 


May  18,  1920. 


PL  3.  STATUTES  AT  LARGE. 


[1920,  May  18.  Temporary  increases  in  pay  and  allowances,  naval  personnel, 


etc.] 

This  act  provided  as  follows: 

"Tliat  commencing  January  1,  1920,  com- 
missioned officers  of  the  Army,  Navy,  and 
Marine  Corps,  and  Public  Health  Service  shall 
be  paid,  in  addition  to  all  pay  and  allowances 
now  allowed  by  law,  increases  at  rates  per 
annum  as  follows:  Colonels  in  the  Army  and 
Marine  Corps,  captains  in  the  Navy,  and 
assistant  surgeons  general  in  the  Public  Ilealth 
Service,  $600 ;  lieutenant  colonels  in  the  Army 
and  Marine  Corps,  commanders  in  the  Navy, 
and  senior  surg(>ons  in  the  Public  Health 
Service,  $G00;  majors  in  the  Army  and  Marine 
Corps,  lieutenant  commanders  in  the  Navy, 
and  surgeons  in  the  Public  Health  Service, 
$840;  captains  in  the  Army  and  Marine  Corps, 
lieutenants  in  the  Navy,  and  passed  assistant 
surgeons  in  the  Public  Health  Service,  $720; 
first  lieutenants  in  the  Army  and  Marine  Corps, 
lieutenants  (junior  grade),  acting  assistant 
surgeons  and  acting  assistant  dental  siirgeons 
in  the  Navy,  and  assistant  sm-geons  in  the 
Public  Health  Service,  $600 ;  second  lieutenants 
in  the  Army  and  Marine  Corps,  and  ensigns  in 
the  Navy,  $420:  Provided,  That  contract  sur- 
geons of  the  Army  serving  full  time  shall  re- 
ceive the  pay  of  a  second  lieutenant. — (41 
Stat.,  601-602,  chap.  190.) 

"Sec.  2.  That  the  rights  and  benefits  pre- 
scribed under  the  Act  of  April  16,  1918,  granting 
commutation  of  quarters,  heat,  and  light 
during  the  present  emergency  to  officers  of  the 
Army  on  duty  in  the  field  are  hereby  continued 
and  made  effective  untilJune  30, 1922,  and  shall 
apply  equally  to  officers  of  the  Navy,  Marine 
Corps,  Coast  Guard,  and  Public  Health  Service: 
Provided,  That  such  rights  and  benefits  as  are 
prescribed  for  officers  shall  apply  equally  for 
enlisted  men  now  entitled  by  regulations  to 
quarters  or  to  commutation  therefor. 

"Sec.  3.  That,  commencing  January  1,  1920, 
warrant  officers  of  the  Navy  shall  be  paid,  in 
addition  to  all  pay  and  allowances  now  allowed 
by  law,  an  increase  at  the  rate  of  $240  per 
annum. 

"Sec  4.  That,  commencing  January  1,  1920, 
the  pay  of  all  enlisted  men  of  the  Army  and 
Marine  Corps  and  of  members  of  the  female 
Nurse  Corps  of  the  Army  and  Navy  is  hereby 
increased  20  per  centum:  Provided,  That  such 
increase  shall  not  apply  to  enlisted  men  whose 
initial  pay,  if  it  has  already  been  permanently 
increased  since  April  6,  1917,  is  now  less  than 
$33  per  month, 

"Sec.  5.  That  all  noncommissioned  officers 
of  the  Army  of  grade  of  color  sergeant  and  above 
as  fixed  by  existing  Army  Regulations  and 
noncommissioned  officers  of  the  Marine  Corps 
of  corresponding  grades  shall  be  entitled  to  one 
ration  or  commutation  therefor  in  addition  to 
that  to  which  they  are  now  entitled.  The 
commutation  value  shall  be  determined  by  the 
President  on  July  1  of  each  fiscal  year,  and  for 
the  ciurent  fiscal  year  the  value  shall  be 
computed  on  the  basis  of  55  cents  per  ration: 
Provided,  That  Army  field  clerks  and  field 
clerks  Quartermaster  Corps,  whose  total  pay 
and    allowances    do    not    exceed    $2,500    per 


annum,  shall  be  paid  an  increase  at  the  rate  of 
$240  per  annum :  Provided  further,  That  such 
Army  field  clerks  and  field  clerks  Quarter- 
master Corps,  whose  total  pay  and  allowances 
exceed  $2,500  but  do  not  exceed  $2,740  per 
annum,  shall  be  paid  such  additional  amount 
as  will  make  their  total  pay  and  allowances 
not  to  exceed  $2,740  per  annum:  Provided 
further.  That  this  section  shall  not  be  construed 
to  reduce  the  pay  and  allowances  of  any  Army 
field  clerk  or  field  clerk  Quartermaster  Corps.— 
(41  Stat.,  602,  chap.  190.) 

"Sec  6.  That,  commencing  January  1,  1920, 
the  following  shall  be  the  rate  of  base  pay  for 
for  each  enlisted  rating:  Chief  petty  officers 
with  acting  appointments,  $99  per  month; 
chief  petty  officers  with  permanent  appoint- 
ments and  mates,  $126  per  month;  petty  officers, 
first  class,  $84  per  month;  petty  officers,  second 
class,  $72  per  month ;  petty  officers,  third  class, 
$60  per  month;  nonrated  men,  first  class,  $54 
per  month;  nonrated  men,  second  class,  $48 
per  month;  nonrated  men,  third  class,  $33  per 
month:  Provided,  That  the  base  pay  of  firemen, 
first  class,  shall  be  $60  per  month;  firemen, 
second  class,  $54  per  month;  firemen,  third 
class,  $48  per  month:  Provided  further,  That  the 
rate  of  base  pay  for  each  rating  in  the  Naval 
Academy  Band  shall  be  as  follows:  Second 
leader,  with  acting  appointment,  $99  per  month, 
with  permanent  appointment,  $126  per  month; 
drum  major,  $84  per  month;  musicians,  first 
class,  $72  per  month;  musicians,  second  class, 
$60  per  month:  Provided  further.  That  the  base 
pay  of  cabin  stewards  and  cabin  cooks  shall  be 
$84  per  month;  wardroom  stewards  and  ward- 
room cooks,  $72  per  month;  steerage  stewards 
and  steerage  cooks,  $72  per  month;  warrant 
officers'  stewards  and  warrant  officers'  cooks, 
$60  per  month;  mess  attendants,  first  class, 
$42  per  month;  mess  attendants,  second  class, 
$36  per  month;  mess  attendants,  third  class, 
$33  per  month:  Provided  further,  That  the  re- 
tainer pay  of  those  members  of  the  Fleet  Naval 
Reserve  who,  pursuant  to  call,  shall  return  to 
active  duty  within  one  month  after  the  approval 
of  this  Act  and  shall  continue  on  active  duty 
until  the  Navy  shall  have  been  recruited  up 
to  its  permanent  authorized  strength,  or  until 
the  number  in  the  grade  to  which  they  may 
be  assigned  is  filled,  but  not  beyond  June  30, 
1922,  shall  be  computed  upon  the  base  pay 
they  are  receiving  when  retransferred  to  in- 
active duty,  plus  the  additions  or  increases  pre- 
scribed in  the  Naval  Appropriation  Act 
approved  August  29,  1916,  for  members  of  the 
Fleet  Naval  Reserve:  Provided  further ,  That  the 
rates  of  base  pay  herein  fixed  shall  not  be 
further  increased  10  per  centum  as  authorized 
by  an  Act  approved  May  13,  1908,  nor  by  the 
temporary  war  increases  as  authorized  by 
section  15  of  the  Act  approved  May  22,  1917, 
as  amended  by  the  Act  approved  July  11, 
1919.  *  *  *  .—(41  Stat.,  602-603,  chap. 
190.) 

"Sec  9.  That  nothing  contained  in  this  Act 
shall  be  construed  as  granting  any  back  pay  or 
allowances  to  any  officer  or  enlisted  man  whose 


1534 


Pt.  3.  STATUTES  AT  LARGE. 


May  18,  1020. 


active  service  shall  have  terminated  subsequent 
to  December  31, 1919,  and  prior  to  the  approval 
of  this  Act,  unless  such  officers  or  enlisted  men 
shall  have  been  recalled  to  active  service  or 
shall  have  been  reenlisted  prior  to  the  approval 
of  this  Act. 

"Sec.  10.  That  any  enlisted  man  or  appren- 
tice seaman  who  shall  reenlist  in  the  Xavy 
within  one  year  from  the  date  of  his  discharge 
therefrom  shall,  upon  such  reenlistment,  be 
entitled  to  and  shall  receive  the  same  benefits  as 
are  now  authorized  by  law  for  reenlistment 
within  four  months  from  date  of  last  discharge 
from  the  service:  Provided,  That  this  section 
shall  become  inoperative  six  months  after  the 
date  of  the  approval  of  this  Act.  *  *  *. — (41 
Stat.,  603,  chap.  190.) 

"Sec.  13.  That  the  provisions  of  sections  1, 
8,  4,  5,  and  6  of  this  Act  shall  remain  effective 
iintil  the  close  of  the  fiscal  year  ending  June  30, 
1922,  unless  sooner  amended  or  repealed:  Pro- 
vided, That  the  rates  of  pay  prescribed  in  sec- 
tions 4  and  6  hereof  shall  be  the  rates  of  pay  dur- 
ing the  current  enlistment  of  all  men  in  active 
ser-\dce  on  the  date  of  the  approval  of  this  Act, 
and  for  those  who  enlist,  reenlist,  or  extend 
their  enlistment  prior  to  July  1,  1922,  for  the 
term  of  such  enlistment,  reenlistment,  or  ex- 
tended enlistment:  Provided  further.  That  the 
increases  pro\dded  in  this  Act  shall  not  enter 
into  the  computation  of  the  retired  pay  of 
officers  or  enlisted  men  who  may  be  retired  prior 
to  July  1,  1922:  And  provided  further.  That  a 
special  committee,  to  be  composed  of  five  Mem- 
bers of  the  Senate,  to  be  appointed  by  the  Vice 
President,  and  five  Members  of  the  House  of 
Representatives,    to    be    appointed    by    the 

[1920,  May  18,  sec.  7.  Pay  of  civilian  professors.  Naval  Academy.]  That 
the  Secretary  of  the  Navy  is  authorized,  in  his  discretion,  to  readjust  the  pre- 
vailing rates  of  pay  of  civilian  professors  and  instructors  at  the  United  States 
Naval  Academy:  Provided,  That  said  readjustment,  which  shall  be  effective 
from  January  1,  1920,  shall  not  involve  an  additional  expenditure  in  excess  of 
$55,000  for  the  remainder  of  the  current  fiscal  year. —  (41  Stat.,  603,  chap. 
190.) 

See  act  of  August  29,  1916  (39  Stat.,  607),  and  note  to  section  1528,  Revised  Statutes. 

[1920,  May  18,  sec.  11.  longevity  pay,  naval  officers;  service  credited.] 
*  *  *  That  hereafter  longevity  pay  for  oflicers  in  the  Army,  Navy,  Marine 
Corps,  Coast  Guard,  Public  Health  Service,  and  Coast  and  Geodetic  Survey 
shall  be  based  on  the  total  of  all  service  in  any  or  all  of  said  services. — (41  Stat., 
604,  chap.  190.) 

See  note  to  section  1556,  Revised  Statutes,  under  "39.  Longevity  pay." 

[1920,  May  18,  sec.  12.  Transportation  to  families  of  officers  and  enlisted 
men  on  permanent  change  of  station ;  transportation  of  household  effects.] 
That  hereafter  when  any  commissioned  officer,  noncommissioned  officer  of  the 
grade  of  color  sergeant  and  above,  including  any  noncommissioned  officer  of 
the  Marine  Corps  of  corresponding  grade,  warrant  officer,  chief  petty  officer,  or 
petty  officer  (first  class)  having  a  wife  or  dependent  child  or  children,  is 
ordered  to  make  a  permanent  change  of  station,  the  United  States  shall  fur- 


Speaker  of  the  House  of  Representatives,  shall 
make  an  investigation  and  report  recommenda- 
tions to  their  respective  Houses  not  later  than 
the  first  Monday  in  January,  1922,  relative  to  the 
readjustment  of  the  pay  and  allowances  of  the 
commissioned  and  enlisted  personnel  of  the 
several  services  herein  mentioned . 

"Sec.  14.  That  nothing  contained  in  this  Act 
shall  operate  to  reduce  the  pay  or  allowances  of 
any  officer  or  enlisted  man  on  the  active  or 
retired  list:  Provided,  That  the  allowances  and 
gratuities  now  authorized  by  existing  law  are 
not  changed  hereby,  except  as  otherwise  speci- 
fied in  this  Act.— (41  Stat.,  604,  chap.  190.) 

"Sec.  15.  That  the  appropriations  'Pay  of 
the  Navy,  1920, 'and  'Pay,  Marine  Corps,  1920,' 
are  hereby  made  available  for  any  of  the  ex- 
penses authorized  by  this  Act,  and  any  part  or 
all  of  the  appropriations  'Provisions,  Navy, 
1920,'  and  'Maintenance,  Quartermaster's  De- 
partment, Marine  Corps,  1920,'  not  required  for 
the  objects  of  expenditure  specified  in  said  ap- 
propriations, may  be  transferred  to  the  appro- 
priations 'Pay  of  the  Navy,  1920,'  or 'Pay,  Ma- 
rine Corps,  1920,'  respectively,  as  may  be  re- 
quired."—(41  Stat.,  604-605,  chap.  190.) 

Omitted  portions  of  this  act  which  con- 
tained permanent  legislation  relating  to  the 
Na\'y  are  set  forth  below;  other  omitted  por- 
tions of  the  act  related  exclusively  to  the  Coast 
Guard  and  Coast  and  Geodetic  Survey. 

As  to  pay  of  the  Navy,  Naval  Reserve  Force, 
and  ^larine  Corps,  see  notes  to  sections  1556, 
1569,  1573,  and  1612,  Revised  Statutes;  as  to 
rations  of  Marine  Corps,  see  note  to  section  1615, 
Revised  Statutes. 


1535 


May  22,  1920.  PL  3.  STATUTES  AT  LARGE.  Civil  Ketirement. 

nish  transportation  in  kind  from  funds  appropriated  for  the  transportation 
of  the  Army,  the  Navy,  the  Marine  Corps,  the  Coast  Guard,  the  Coast  and 
Geodetic  Survey,  and  the  Pubhc  Health  Service  to  his  new  station  for  the  wife 
and  dependent  child  or  children:  Provided,  That  for  persons  in  the  naval  service 
the  term  ''permanent  station,"  as  used  in  this  section,  shall  be  interpreted  to 
mean  a  shore  station  or  the  home  yard  of  the  vessel  to  which  the  person  con- 
corned  may  be  ordered;  and  a  duly  authorized  change  in  home  yard  or  home 
port  of  such  vessel  shall  be  deemed  a  change  of  station:  Provided  further,  That 
if  the  cost  of  such  transportation  exceeds  that  for  transportation  from  the  old 
to  the  new  station  the  excess  cost  shall  be  paid  to  the  United  States  by  the 
officer  concerned:  Provided  further,  That  transportation  supplied  the  wife  or 
dependent  child  or  children  of  such  officer,  to  or  from  stations  beyond  the 
continental  limits  of  the  United  States,  shall  not  be  other  than  by  Government 
transport,  if  such  transportation  is  available:  And  provided  further.  That  the 
pereonnel  of  the  Navy  shall  have  the  benefit  of  all  existing  laws  applying  to 
the  Army  and  the  Marine  Corps  for  the  transportation  of  household  effects. — 
''41  Stat.,  604,  chap.  190.) 

[1920,  May  21,  sec.  7.  Transfer  of  appropriations  between  bureaus  and 
departments ;  supplies  and  services.]  That  whenever  any  Government  bureau 
or  department  procures,  by  purchase  or  manufacture,  stores  or  materials  of  any 
kind,  or  performs  any  service  for  another  bureau  or  department,  the  funds  of 
the  bureau  or  department  for  which  the  stores  or  materials  are  to  be  procured 
or  the  service  performed  may  be  placed  subject  to  the  requisitions  of  the  bureau 
or  department  making  the  procurement  or  performing  the  service  for  direct 
expenditure:  Provided,  That  funds  so  placed  with  the  procuring  bureau  shall 
remain  available  for  a  period  of  two  years  for  the  purposes  for  which  the  allo- 
cation was  made  unless  sooner  expended. — (41  Stat.,  613,  chap.  194.) 

A  similar  provision,  limited  to  the  War  and    j  of  March  4,  1915  (38  Stat.,  1084);  see  refer- 

Navy  Departments,  was  contained  in  act   I  ences  under  that  act. 

[1920,  May  22.  Retirement  of  civil  employees;  deductions  from  pay  for 
retirement  fund ;  etc.]  That  beginning  at  the  expiration  of  ninety  days  next 
following  the  passage  of  this  Act,  all  employees  in  the  classified  civil  service  of 
the  United  States  who  have  on  that  date,  or  shall  have  on  any  date  thereafter, 
reached  the  age  of  seventy  years  and  rendered  at  least  fifteen  years  of  service 
computed  as  prescribed  in  section  3  of  this  Act,  shall  be  eligible  for  retirement 
on  an  annuity  as  provided  in  section  2  hereof:  Provided,  That  mechanics,  city 
and  rural  letter  carriers,  and  post-office  clerks  shall  be  eligible  for  retirement  at 
sixty-five  years  of  age,  and  railway  postal  clerks  at  sixty-two  years  of  age,  if 
said  mechanics,  city  and  rural  letter  carriers,  post-office  clerks,  and  railway 
postal  clerks  shall  have  rendered  at  least  fifteen  years  of  service  computed  as 
prescribed  in  section  3  of  this  Act. 

The  provisions  of  this  Act  shall  include  superintendents  of  United  States 
national  cemeteries,  employees  of  the  Superintendent  of  the  United  States 
Capitol  Buildings  and  Grounds,  the  Librar}^  of  Congress,  and  the  Botanic  Gar- 
dens, excepting  persons  appointed  by  the  President  and  confirmed  by  the 
Senate,  and  may  be  extended  by  Executive  order,  upon  recommendation  of  the 
Civil  Service  Commssion,  to  include  any  employee  or  group  of  employees  in  the 

1536 


Civil  Retirement.  Pt.  3.  STATUTES  AT  LARGE.  May  22,  1920. 

civil  service  of  the  United  States  not  classified  at  the  time  of  the  passage  of 
this  Act.  The  President  shall  have  power,  in  his  discretion,  to  exclude  from  the 
operation  of  this  Act  any  employee  or  group  of  employees  in  the  classified 
civil  service  whose  tenure  of  office  or  employment  is  intermittent  or  of  uncer- 
tain duration.     *     *     * 

Sec.  2.  [Classification  and  rates  for  annuities.]  That  for  the  pur- 
pose of  determining  the  amount  of  annuity  which  retired  employees  shall  receive, 
the  following  classifications  and  rates  shall  be  established: 

Class  A  shall  include  all  employees  to  whom  this  Act  applies  who  shall 
have  served  the  United  States  for  a  total  period  of  thirty  years  or  more.  The 
annuity  to  a  retired  employee  in  this  class  shall  equal  60  per  centum  of  such 
employee's  average  annual  basic  salary,  pay,  or  compensation  from  the  United 
States  for  the  ten  years  next  preceding  the  date  on  which  he  or  she  shall  retire : 
Provided,  That  in  no  case  shall  an  annuity  in  this  class  exceed  $720  per  annum 
or  be  less  than  $360  per  annum. — (41  Stat.,  614,  chap.  195.) 

Class  B  shall  include  all  employees  to  whom  this  Act  applies  who  shall 
have  served  the  United  States  for  a  total  period  of  twenty-seven  years  or  more, 
but  less  than  thirty  years.  The  annuity  to  a  retired  employee  in  this  class 
shall  equal  54  per  centum  of  such  employee's  average  annual  basic  salary,  pay, 
or  compensation  from  the  United  States  for  the  ten  years  next  preceding  the 
date  on  which  he  or  she  shall  retire :  Provided,  That  in  no  case  shall  an  annuity 
in  this  class  exceed  $648  per  ammm,  or  be  less  than  $324  per  annum. 

Class  C  shall  include  all  employees  to  whom  this  Act  applies  who  shall  have 
served  the  United  States  for  a  total  period  of  twenty-four  years  or  more,  but 
less  than  twenty-seven  years.  The  annuity  to  a  retired  employee  in  this  class 
shall  equal  48  per  centum  of  such  employee's  average  annual  basic  salary,  pay, 
or  compensation  from  the  United  States  for  the  ten  years  next  preceding  the 
date  on  which  he  or  she  shall  retire :  Provided,  That  in  no  case  shall  an  annuity 
in  this  class  exceed  $576  per  annum,  or  be  less  than  $288  per  annum. 

Class  D  shall  include  all  employees  to  whom  this  Act  applies  who  shall  have 
served  the  United  States  for  a  total  period  of  twenty-one  years  or  more,  but  less 
than  twenty-four  years.  The  annuity  to  a  retired  employee  in  this  class  shall 
equal  42  per  centum  of  such  employee's  average  annual  basic  salary,  pay,  or 
compensation  from  the  United  States  for  the  ten  years  next  preceding  the  date 
on  which  he  or  she  shall  retire:  Provided,  That  in  no  case  shall  an  annuity  in 
this  class  exceed  $504  per  annum,  or  be  less  than  $252  per  annum. 

Class  E  shall  include  all  employees  to  whom  this  Act  applies  who  shall  have 
served  the  United  States  for  a  total  period  of  eighteen  years  or  more,  but  less 
than  twenty-one  years.  The  annuity  to  a  retired  emplpyee  in  this  class  shall 
equal  36  per  centum  of  such  employee's  average  annual  basic  salary,  pay,  or 
compensation  from  the  United  States  for  the  ten  years  next  preceding  the  date 
on  which  he  or  she  shall  retire :  Provided,  That  in  no  case  shall  an  annuity  in  this 
class  exceed  $432  per  annum,  or  be  less  than  $210  per  annum. 

Class  F  shall  include  all  employees  to  whom  this  Act  applies  who  shall  have 
served  the  United  States  for  a  total  period  of  fifteen  years  or  more,  but  less  than 
eighteen  years.  The  annuity  to  a  retired  employee  in  this  class  shall  equal  30 
per  centum  of  such  employee's  average  annual  basic  salary,  pay,  or  compensa- 
tion from  the  United  States  for  the  ten  years  next  preceding  the  date  on  which 

1537 


May  22,  1920.  Pt.  S.  STATUTES  AT  LARGE.  Civil  Retirement. 

he  or  she  shall  retu-c:  Providtd,  That  in  no  case  shall  an  annuity  in  this  class 
exceed  S360  per  annum,  or  be  less  than  $180  per  annum. 

The  term  ''basic  salary,  pay,  or  compensation"  wherever  used  in  this  Act 
shall  be  so  construed  as  to  exclude  from  the  operation  of  the  Act  all  bonuses, 
allowances,  overtime  pay,  or  salary,  pay,  or  compensation  given  in  addition  to 
the  base  pay  of  the  positions  as  fixed  by  law  or  regulation. — (41  Stat.,  615, 
chap,  195.) 

Sec.  3.  [Computation  of  service.]  That  for  the  purposes  of  this  Act  and 
subject  to  the  provisions  of  section  10  hereof,  the  period  of  service  shall  be 
computed  from  the  date  of  original  employment,  whether  as  a  classified  or  un- 
classified employee  in  the  civil  service  of  the  United  States,  and  shall  include 
periods  of  service  at  different  times  and  services  in  one  or  more  departments, 
branches,  or  independent  offices  of  the  Government,  and  shall  also  include 
service  performed  under  authority  of  the  United  States  be^^ond  seas,  and 
honorable  service  in  the  Army,  Navy,  Marine  Corps,  or  Coast  Guard  of  the 
United  States:  Provided,  That  in  the  case  of  an  employee  who  is  eligible  for  and 
elects  to  receive  a  pension  under  any  law,  or  compensation  under  the  War  Risk 
Insurance  Act,  the  period  of  his  or  her  militaiy  or  naval  service  upon  which 
such  pension  or  compensation  is  based  shall  not  be  included  for  the  purpose  of 
assignment  to  classes  defined  in  section  2  hereof,  but  nothing  contained  in  this 
Act  shall  be  so  construed  as  to  affect  in  any  manner  his  or  her  right  to  a  pension, 
or  to  compensation  under  the  War  Risk  Insurance  Act,  in  addition  to  the 
annuity  herein  provided.^(41  Stat.,  615-616,  chap.  195.) 

It  is  further  provided  that  in  computing  length  of  service  for  the  purposes 
of  this  Act  all  periods  of  separation  from  the  service  and  so  much  of  any  period 
of  leave  of  absence  as  may  exceed  six  months  shall  be  excluded,  and  that  in  the 
case  of  substitutes  in  the  Postal  Service  only  periods  of  active  employment 
shall  be  included. 

Sec.  4.  [Commissioner  of  Pensions,  jurisdiction;  appeals.]  That  for 
the  purpose  of  administration,  except  as  otherwise  provided  herem,  the  Com- 
missioner of  Pensions,  under  the  direction  of  the  Secretary  of  the  Interior,  be, 
and  is  hereby,  authorized  and  directed  to  perform,  or  cause  to  be  performed, 
any  and  all  acts  and  to  make  such  rules  and  regulations  as  may  be  necessary 
and  proper  for  the  purpose  of  carrying  the  provisions  of  this  Act  into  full  force 
and  effect.  An  appeal  to  the  Secretary  of  the  Interior  shall  lie  from  the  final 
action  or  order  of  the  Commissioner  of  Pensions  affecting  the  rights  or  interests 
of  any  person  or  of  the  United  States  under  this  Act,  the  procedure  on  appeal 
to  be  as  prescribed  by  the  Commissioner  of  Pensions,  with  the  approval  of  the 
Secretary  of  the  Interior. 

Sec.  5.  [Disability  retirement  in  lieu  of  other  compensation.]  That 
any  employee  to  whom  this  Act  applies  who  shall  have  served  for  a  total  period 
of  not  less  than  fifteen  years,  and  who,  before  reaching  the  retirement  age  as  fixed 
in  section  1  hereof,  becomes  totally  disabled  for  useful  and  efficient  service  by 
reason  of  disease  or  injury  not  due  to  vicious  habits,  intemperance;  or  willful 
misconduct  on  the  part  of  the  employee,  shall  upon  his  or  her  own  application 
or  upon  the  request  or  order  of  the  head  of  the  department,  branch,  or  inde- 
pendent office  concerned,  be  retired  on  an  annuity  under  the  provisions  of 
section  2  hereof:  Provided,  however.  That  no  employee  shall  be  retired  under 

1538 


Civil  Retirement.  Pt.  3.  STATUTES  AT  LARGE.  May  22,  1920. 

the  provisions  of  this  section  until  examined  by  a  medical  officer  of  the  United 
States  or  a  duly  qualified  physician  or  surgeon  or  board  of  physicians  or  surgeons 
designated  by  the  Commissioner  of  Pensions  for  that  purpose  and  found  to  be 
disabled  in  the  degree  and  in  the  manner  specified  herein. 

Every  annuitant  refilled  under  the  provisions  of  this  section,  unless  the 
disability  for  which  retired  is  permanent  in  character,  shall,  at  the  expiration 
of  one  year  from  the  date  of  such  retu'ement  and  annually  thereafter  until 
reaching  the  retirement  age  as  defined  in  section  1  hereof,  be  examined  under 
direction  of  the  Commissioner  of  Pensions  by  a  medical  officer  of  the  United 
States,  or  a  duly  qualified  physician  or  surgeon  or  board  of  physicians  or  sur- 
geons designated  by  the  Commissioner  of  Pensions  for  that  purpose,  in  order  to 
ascertain  the  nature  and  degree  of  the  annuitant's  disability,  if  any;  if  the 
annuitant  recovers  and  is  restored  to  his  or  her  former  earning  capacity  before 
reaching  the  retirement  age,  payment  of  the  aimuity  shall  be  discontinued  from 
the  date  of  the  medical  examination  showing  such  recovery;  if  the  annuitant 
fails  to  appear  for  examination  as  required  under  this  section,  payment  of  the 
annuity  shall  be  suspended  until  continuance  of  the  disability  has  been  satisfac- 
torily established.  The  Commissioner  of  Pensions  is  hereby  authorized  to  order 
or  direct  at  any  time  such  medical  or  other  examination  as  he  shall  deem 
necessary  to  determine  the  facts  relative  to  the  nature  and  degree  of  disability 
of  any  employee  retired  on  an  annuity  under  this  section. 

Fees  for  examinations  made  under  the  provisions  of  this  section  by  physi- 
cians or  surgeons  who  are  not  medical  officers  of  the  United  States  shall  be  fixed 
by  the  Commissioner  of  Pensions,  and  such  fees,  together  with  the  employee's 
reasonable  traveling  and  other  expenses  incurred  in  order  to  submit  to  such 
examinations,  shall  be  paid  out  of  the  appropriations  for  the  cost  of  administer- 
ing this  Act.— (41  Stat.,  616,  chap.  195.) 

In  all  cases  where  the  annuity  is  discontinued  under  the  provisions  of  this 
section  before  the  annuitant  has  received  a  sum  equal  to  the  total  amount  of 
his  or  her  contributions  with  accrued  interest,  the  difference  shall  be  paid  to 
the  retired  employee,  or  to  his  or  her  estate,  upon  application  therefor  in  such 
form  and  manner  as  the  Commissioner  of  Pensions  may  direct. 

No  person  shall  be  entitled  to  receive  an  annuity  under  the  provisions  of 
this  Act,  and  compensation  under  the  provisions  of  the  Act  of  September  7, 
1916,  entitled  ''An  Act  to  provide  compensation  for  employees  of  the  United 
States  suffering  injuries  while  in  the  performance  of  their  duties,  and  for  other 
purposes,"  covering  the  same  period  of  time;  but  this  provision  shall  not  be  so 
construed  as  to  bar  the  right  of  any  claimant  to  the  greater  benefit  conferred 
by  either  Act  for  any  part  of  the  same  period  of  time. 

Sec.  6.  [Retention  in  service  beyond  retiring  age.]  That  all  em- 
ployees to  whom  this  Act  applies  shall,  upon  the  expiration  of  ninety  days 
next  succeeding  its  passage,  if  of  retirement  age,  or  thereafter  on  arriving  at 
retirement  age  as  defined  in  section  1  hereof,  be  automatically  separated  from 
the  service,  and  all  salary,  pay,  or  compensation  shall  cease  from  that  date, 
and  it  shall  be  the  duty  of  the  head  of  each  department,  branch,  or  independent 
office  of  the  Government  to  notify  such  employees  under  his  direction  of  the  date 
of  such  separation  from  the  service  at  least  sixty  days  in  advance  thereof: 

1539 


May  22,  1920.  Pt.  ,S.  STATUTES  AT  LARGE.  CivU  Ketirement. 

Provided,  That  no  person  employed  in  the  executive  departments  within  the 
District  of  Cohimbia,  retired  under  the  provisions  of  this  Act  during  the  fiscal 
year  ending  June  30,  1921,  shall  be  replaced  by  additional  employees,  but  if  the 
exigencies  of  the  service  so  require,  places  made  vacant  by  such  retirement 
may  be  filled  by  promotion  or  transfer  of  eligible  employees  already  in  the 
service :  Provided,  That  if  within  sixty  days  after  the  passage  of  this  Act  or  not 
less  than  thirty  days  before  the  arrival  of  an  employee  at  the  age  of  retirement, 
the  head  of  the  department,  branch,  or  independent  office  of  the  Government 
in  which  he  or  she  is  employed  certifies  to  the  Civil  Service  Commission  that  by 
reason  of  his  or  her  efficiency  and  willingness  to  remain  in  the  civil  service  of 
the  United  States  the  continuance  of  such  employee  therein  would  be  advanta- 
geous to  the  public  service,  such  employee  may  be  retained  for  a  term  not  ex- 
ceeding two  years  upon  approval  and  certification  by  the  Civil  vService  Com- 
mission, and  at  the  end  of  the  two  years  he  or  she  may,  by  similar  approval  and 
certification,  be  continued  for  an  additional  term  not  exceeding  two  years,  and 
so  on:  Provided,  however.  That  at  the  end  of  ten  years  after  this  act  becomes 
effective  no  employee  shall  be  continued  in  the  civil  service  of  the  United  States 
beyond  the  age  of  retirement  defined  in  section  1  hereof  for  more  than  four 
years. — (41  Stat.,  617,  chap.  195.) 

Sec.  7.  [Application;  certificate  of  head  of  department.]  That 
every  employee  who  is  or  hereafter  becomes  eligible  for  retirement  because  of 
age  as  provided  in  this  Act,  shall,  within  sixty  days  after  its  passage  or  thirty 
days  before  reaching  the -retirement  age,  or  at  any  time  thereafter,  file  with  the 
Commissioner  of  Pensions,  in  such  form  as  he  may  prescribe,  an  application  for 
an  annuity,  supported  by  a  certificate  from  the  head  of  the  department,  branch, 
or  independent  office  of  the  Government  in  which  the  applicant  has  been  em- 
ployed, stating  the  age  and  period  or  periods  of  service  of  the  applicant  and 
salary,  pay,  or  compensation  received  during  such  periods,  as  shown  by  the 
official  records:  Provided,  however,  That  in  the  case  of  an  employee  who  is  to 
be  continued  in  the  civil  service  of  the  United  States  beyond  the  retirement  age 
as  provided  in  section  6  hereof,  he  or  she  may  make  application  for  retirement 
at  any  time  within  such  period  of  continuance  in  the  service ;  but  nothing  con- 
tained in  this  Act  shall  be  construed  to  prevent  the  compulsory  retirement  of 
such  employee  when  in  the  judgment  of  the  head  of  the  department,  branch,  or 
independent  office  in  which  he  or  she  is  employed  such  retirement  would  pro- 
mote the  best  interests  of  the  service. — (41  Stat.,  617-618,  chap.  195.) 

Upon  receipt  of  satisfactory  evidence  the  Commissioner  of  Pensions  shall 
forthwith  adjudicate  the  claim  of  the  applicant,  and  if  title  to  annuity  be  estab- 
lished, a  proper  certificate  shall  be  issued  to  the  annuitant  under  the  seal  of  the 
Department  of  the  Interior. 

Annuities  granted  under  this  Act  for  retirement  on  account  of  age  shall 
commence  from  the  date  of  separation  from  the  service  on  or  after  the  date  this 
Act  shall  take  effect,  and  shall  continue  during  the  life  of  the  annuitant.  Annui- 
ties granted  for  disability  under  the  provisions  of  section  5  hereof  shall  be  subject 
to  the  limitations  specified  in  said  section. 

Sec.  8.  [Deductions  from  salaries;  donations,  etc.]  That  beginning 
on  the  first  day  of  the  third  month  next  following  the  passage  of  this  Act  and 

1540 


Civil  Retirement.  Pt.  3.  STATUTES  AT  LARGE.  May  22,  1920. 

monthly  thereafter  there  shall  be  deducted  and  withheld  from  the  basic  salary, 
pay,  or  compensation  of  each  employee  to  whom  this  Act  applies  a  sum  equal 
to  2^  per  centum  of  such  employee's  basic  salary,  pay,  or  compensation.  The 
Secretary  of  the  Treasury  shall  cause  the  said  deductions  to  be  withheld  from 
all  specific  appropriations  for  the  particular  salaries  or  compensation  from  which 
the  deductions  are  made  and  from  all  allotments  out  of  lump-sum  appropria- 
tions for  payments  of  such  salaries  or  compensation  for  each  fiscal  year,  and 
said  sums  shall  be  transferred  on  the  books  of  the  Treasury  Department  to  the 
credit  of  a  special  fund  to  be  known  as  "the  civil-service  retirement  and  disa- 
bility fund,"  and  said  fund  is  hereby  appropriated  for  the  payment  of  annuities, 
refunds,  and  allowances  as  provided  in  this  Act. 

The  Secretary  of  the  Treasury  is  hereby  directed  to  invest  from  time  to 
time,  in  interest-bearing  securities  of  the  United  States,  such  portions  of  the 
''  civil-service  retirement  and  disability  fund"  hereby  created  as  in  his  judgment 
may  not  be  immediately  required  for  the  payment  of  annuities,  refunds,  and 
allowances  as  herein  provided,  and  the  income  derived  from  such  investments 
shall  constitute  a  part  of  said  fund  for  the  purpose  of  paying  annuities  and  of 
carrying  out  the  provisions  of  section  1 1  of  this  Act. 

The  Secretary  of  the  Treasury  is  hereby  authorized  and  empowered  in 
carrying  out  the  provisions  of  this  Act  to  supplement  the  individual  contribu- 
tions of  employees  with  moneys  received  in  the  form  of  donations,  gifts,  legacies, 
bequests,  or  otherwise,  and  to  receive,  invest,  and  disburse  for  the  purposes  of 
this  Act  all  moneys  which  may  be  contributed  by  private  individuals  or  cor- 
porations or  organizations  for  the  benefit  of  civil-service  employees  generally  or 
any  special  class  of  employees. 

Sec.  9.  [Deductions  compulsory.]  That  every  employee  coming  within 
the  provisions  of  this  Act  shall  be  deemed  to  consent  and  agree  to  the  deductions 
from  salary,  pay,  or  compensation  as  provided  in  section  8  hereof,  and  payment 
less  such  deductions  shall  be  a  full  and  complete  discharge  and  acquittance  of 
all  claims  and  demands  whatsoever  for  all  regular  services  rendered  by  such 
employee  during  the  period  covered  by  such  payment,  except  the  right  to  the 
benefits  to  which  he  or  she  shall  be  entitled  under  the  provisions  of  this  Act, 
notwithstanding  the  provisions  of  sections  167,  168,  and  169  of  the  Revised 
Statutes  of  the  United  States,  and  of  any  other  law,  rule,  or  regulation  affecting 
the  salary,  pay,  or  conupensation  of  any  person  or  persons  employed  in  the  civil 
service  to  whom  this  Act  applies. — (41  Stat.,  618,  chap.  195.) 

Sec.  10.  [Employees  reinstated,  etc.]  That  upon  the  transfer  of  any 
employee  from  an  unclassified  to  a  classified  status,  or  upon  the  reinstatement 
of  a  former  employee,  credit  for  past  service  rendered  subsequent  to  the  date 
this  Act  shall  take  effect,  or  for  any  part  thereof,  shall  be  granted  only  upon 
deposit  with  the  Treasurer  of  the  United  States  of  the  amount  of  such  deduc- 
tions with  interest  as  provided  in  this  Act  as  would  have  been  made  for  the 
periods  of  actual  service,  or  part  thereof,  for  which  credit  is  to  be  given,  but  such 
interest  shall  not  be  computed  for  periods  of  separation  from  the  service: 
Provided,  That  failure  to  make  such  deposit  shall  not  deprive  the  employee  of 
credit  for  any  past  service  rendered  prior  to  the  date  this  Act  shall  become 
operative,  and  to  which  he  or  she  would  otherwise  be  entitled. — (41  Stat., 
618-619,  chap.  195.) 

1541 


M0.y22,  1920.  Pt.  S.  STATUTES  AT  LARGE.  Civil  Ketirement. 

Sec.  U.  [Payment  of  deductions  on  separation  from  service,  etc.] 
That  in  the  case  of  an  employee  in  the  cbissified  civil  service  of  the  United 
States  who  shall  be  transferred  to  an  unclassified  position,  and  in  the  case  of 
any  employee  to  whom  this  Act  applies  who  shall  become  absolutely  separated 
from  the  service  before  becoming  eligible  for  retirement  on  an  annuity,  the  total 
amount  of  deductions  of  salary,  pay,  or  compensation  with  accrued  interest 
computed  at  the  rate  of  4  per  centum  per  annum,  compounded  on  June  30  of 
each  fiscal  year,  shall,  upon  application,  be  returned  to  such  employee:  Pro- 
vided, Tliat  all  money  so  returned  to  an  employee  must  be  redeposited  with 
interest  before  such  employee  may  derive  any  benefit  under  the  provisions  of 
this  Act,  upon  reinstatement  or  retransfer  to  a  classified  position;  and  in  case 
an  annuitant  shall  die  without  having  received  in  annuities  an  amount  equal 
to  the  total  amount  of  the  deductions  from  his  or  her  salary,  pay,  or  compensa- 
tion, together  with  interest  thereon  at  4  per  centum  per  annum  compounded 
as  herein  provided  up  to  the  time  of  his  or  her  death,  the  excess  of  the  said 
accumulated  deductions  over  the  said  annuity  payments  shall  be  paid  in  one  sum 
to  his  or  her  legal  representatives  upon  the  establishment  of  a  valid  claim 
therefor;  and  in  case  an  employee  shall  die  without  having  reached  the  retire- 
ment age  or  without  having  established  a  valid  claim  for  annuity,  the  total 
amount  of  deductions  with  accrued  interest  as  herein  provided  shall  be  paid 
to  the  legal  representatives  of  such  employee:  Provided,  That  if  in  case  of 
death  the  amount  of  deductions  to  be  paid  under  the  provisions  of  this  section 
does  not  exceed  S300,  and  if  there  has  been  no  demand  upon  the  Commissioner 
of  Pensions  by  a  duly  appointed  executor  or  administrator,  the  payment  may 
be  made,  after  the  expiration  of  three  months  from  date  of  death,  to  such 
person  or  persons  as  may  appear  in  the  judgment  of  the  Commissioner  of 
Pensions  to  be  legally  entitled  to  the  proceeds  of  the  estate,  and  such  payment 
shall  be  a  bar  to  recovery  by  any  other  person. 

wSec.  12.  [Monthly  payment  of  annuities.]  That  annuities  granted 
under  the  terms  of  this  Act  shall  be  due  and  payable  monthly  on  the  first 
business  day  of  the  month  following  the  month  or  other  period  for  whicli  the 
annuity  shall  have  accrued,  and  payment  of  all  annuities,  refunds,  and  allow- 
ances granted  hereunder  shall  be  made  by  checks  drawn  and  issued  by  the  dis- 
bursing clerk  for  the  payment  of  pensions  in  such  form  and  manner  and  with 
such  safeguards  as  shall  be  prescribed  by  the  Secretary  of  the  Interior  in  ac- 
cordance with  the  laws,  rules,  and  regulations  governing  accountmg  that  may 
be  found  applicable  to  such  payments. — (41  Stat.,  619,  chap.  195.) 

Sec.  13.  [Reports  to  be  made  by  departments,  etc.]  That  it  shall  be 
the  duty  of  the  head  of  each  executive  department  and  the  head  of  each  in- 
dependent establishment  of  the  Government  not  within  the  jurisdiction  of 
any  executive  department  to  report  to  the  Civil  Service  Commission  in  such 
manner  as  said  commission  may  prescribe,  the  name  and  grade  of  eacli  em- 
ployee to  whom  this  Act  applies  in  or  under  said  department  or  establishment 
who  shall  be  at  any  time  in  a  nonpay  status,  showing  the  dates  such  employee 
was  in  a  nonpay  status,  and  the  amount  of  salary,  pay,  or  compensation  lost 
by  the  employee  by  reason  of  such  absence.  The  Civil  Service  Commission 
shall  keep  a  record  of  appointments,  transfers,  changes  in  grade,  separations 
from  the  service,   reinstatements,   loss   of  pay,   and   such  other  information 

1542 


Civil  Retirement.  Ft.  3.  STATUTES  AT  LARGE.  May  22,  1920. 

concerning  individual  service  as  may  be  deemed  essential  to  a  proper  determina- 
tion of  rights  under  this  Act,  and  shall  furnish  the  Commissioner  of  Pensions 
such  reports  therefrom  as  he  shall  from  time  to  time  request  as  necessary  to  the 
proper  adjustment  of  any  claim  hereunder,  and  shall  prepare  and  keep  all 
needful  tables  and  records  required  for  carrying  out  the  provisions  of  this  Act, 
including  data  showing  the  mortality  experience  of  the  employees  in  the  service, 
and  the  percentage  of  withdrawal  from  such  service,  and  any  other  information 
that  may  serve  as  a  guide  for  future  valuations  and  adjustments  of  the  plan 
for  the  retirement  of  employees  under  this  Act, — (41  Stat.,  619-620,  chap.  195.) 

The  Commissioner  of  Pensions  shall  make  a  detailed  comparative  report 
annually  showing  all  receipts  and  disbursements  on  account  of  refunds,  allow- 
ances, and  annuities,  together  with  the  total  number  of  persons  receiving 
annuities  and  the  amounts  paid  them. 

Sec.  14.  [Moneys  not  subject  to  attachment,  etc.]  That  none  of  the 
moneys  mentioned  in  this  Act  shall  be  assignable,  either  in  law  or  equity,  or 
be  subject  to  execution,  levy,  or  attachment,  garnishment,  or  other  legal 
process.— (41  Stat.,  620,  chap.  195.) 

[1920,  May  29.  Receipts  from  publications,  Hydrographic  Office.]  All  sums 
received  from  the  sale  of  maps,  charts,  and  other  publications  issued  by  the 
Hydrographic  Office  after  June  30,  1921,  shall  be  covered  into  the  Treasury 
of  the  United  States  as  miscellaneous  receipts. — (41  Stat.,  665,  chap.  214.) 

See  section  443,  Revised  Statutes,  and  note  thereto. 

[1920,  May  29,  Sec.  4.  Typewriters,  sale  or  exchange  restricted.]     *     *     * 

That  hereafter  no  typewriter  that  has  been  used  less  than  three  years  shall  be 

sold,  exchanged,  or  given  as  part  payment  for  anotlier  typewriter. — (41  Stat., 

689,  chap.,  214.) 

A  somewhat  different  provision  on  the  same  subject  is  contained  in  act  of  June  5,  1920, 
section  7  (41  Stat.,  947). 

[1920,  May  29,  sec.  7.  Statement  of  bnildings  rented,  District  of  Columbia.] 
That  hereafter  the  statement  of  buildings  rented  within  the  District  of  Columbia 
for  the  use  of  the  Government,  required  by  the  Act  of  July  16,  1892,  shall 
indicate,  in  addition  to  the  data  required  by  section  3  of  the  Act  of  IVIay  1,  1913, 
the  cost  of  the  care,  maintenance,  and  operation  of  each  building  per  square 
foot  of  floor  space  of  the  building  or  portion  of  building  rented. — (41  Stat., 
691,  chap.  214.) 


See  acts  of  Julv  16,  1892  (27  Stat.,  199),  and 
May  1,  1913,  section  3  (38  Stat.,  3). 


As  to  annual  report  concerning  Government- 
owned  buildings  in  the  District  of  Colum- 
bia, see  act  of  June  5,  1920,  section  3  (41 
Stat.,  945). 

[1920,  June  4.  Passports,  Government  officers  and  employees.]  That  no  fee 
shall  be  collected  for  passports  issued  to  officers  or  employees  of  tlie  United 
States  proceeding  abroad  in  the  discharge  of  their  official  duties,  or  to  members 
of  their  immediate  families,  or  to  seamen,  or  to  widows,  children,  parents, 
brothers,  and  sisters  of  American  soldiers,  sailors,  or  marines,  buried  abroad 
whose  journey  is  undertaken  for  the  purpose  and  with  the  intent  of  visiting  the 
graves  of  such  soldiers,  sailors,  or  marines,  which  facts  shall  be  made  a  part  of 
the  application  for  the  passport.— (41  Stat.,  750,  chap.  223.) 

1543 


June  4,  1920.  Pt.  S.  STATUTES  AT  LARGE. 

[1920,  June  4.  Articles  of  War.]  *  *  *  Art.  2.  Persons  subject  to 
MILITARY  L.vw. — Tlio  following  pcrsons  are  subject  to  these  articles  and  shall 
be  understooil  as  included  in  the  term  ''any  person  subject  to  military  law,"  or 
"persons  subject  to  military  law,"  whenever  used  in  these  articles:  Provided, 
That  nothing  contained  in  this  Act,  except  as  specifically  provided  in  Article  2, 
subparagraph  (c),  shall  be  construed  to  apply  to  any  person  under  the  United 
States  naval  jurisdiction  unless  otherwise  specifically  provided  by  law. 

(a)  All  officers,  members  of  the  Army  Nurse  Corps,  warrant  officers,  Army 
field  clerks,  field  clerks  Quartermaster  Corps,  and  soldiers  belonging  to  the 
Regular  Army  of  the  United  States;  all  volunteers,  from  the  dates  of  their 
muster  or  acceptance  into  the  military  service  of  the  United  States;  and  all 
other  persons  lawfully  called,  drafted,  or  ordered  into,  or  to  duty  or  for  training 
in,  the  said  service,  from  the  dates  they  are  required  by  the  terms  of  the  call, 
draft  or  order  to  obey  the  same; 

(b)  Cadets; 

(c)  Officers  and  soldiers  of  the  Marine  Corps  when  detached  for  service 
with  the  armies  of  the  United  States  by  order  of  the  President:  Provided,  That 
an  officer  or  soldier  of  the  Marine  Corps  when  so  detached  may  be  tried  by 
military  court-martial  for  an  offense  committed  against  the  laws  for  the  govern- 
ment of  the  naval  service  prior  to  his  detachment,  and  for  an  offense  committed 
against  these  articles  he  may  be  tried  by  a  naval  court-martial  after  such 
detachment  ceases; 

(d)  All  retainers  to  the  camp  and  all  persons  accompanying  or  serving 
with  the  armies  of  the  United  States  without  the  territorial  jurisdiction  of  the 
United  States,  and  in  time  of  war  all  such  retainers  and  persons  accompanying 
or  serving  with  the  armies  of  the  United  States  in  the  field,  both  within  and 
without  the  territorial  jurisdiction  of  the  United  States,  though  not  otherwise 
subject  to  these  articles; 

(e)  All  persons  under  sentence  adjudged  by  courts-martial; 

(f)  All  persons  admitted  into  the  Regular  Army  Soldiers'  Home  at  Wash- 
ington, District  of  Columbia.     *     *     *.— (41  Stat.,  787,  chap.  227.) 

Art.  4.  Who  may  serve  on  courts-martial. — All  officers  in  the  mili- 
tary service  of  the  United  States,  and  officers  of  the  Marine  Corps  when  detached 
for  service  with  the  Army  by  order  of  the  President,  shall  be  competent  to 
serve  on  courts-martial  for  the  trial  of  any  persons  who  may  lawfully  be  brought 
before  such  courts  for  trial.     *     *     *.— (41  Stat.,  788,  chap.  227.) 

Art.  60.  Entertaining  a  deserter. — Any  officer  who,  after  having 
discovered  that  a  soldier  in  his  command  is  a  deserter  from  the  military  or 
naval  service  or  from  the  Marine  Corps,  retains  such  deserter  in  his  command 
without  informing  superior  authority  or  the  commander  of  the  organization 
to  which  the  deserter  belongs,  shall  be  punished  as  a  court-martial  may  direct. 
*     *     *.— (41  Stat.,  800,  chap.  227.) 

Art.  120.  Command  when  different  corps  or  commands  happen  to 
JOIN. — When  diff"erent  corps  or  commands  of  the  military  forces  of  the  United 
States  happen  to  join  or  do  duty  together,  the  officer  highest  in  rank  of  the 
line  of  the  Regular  Army,  Marine  Corps,  forces  drafted  or  called  into  the  service 
of  the  United  States,  or  Volunteers,  there  on  duty,  shall,  subject  to  the  pro- 
visions of    the  last  preceding  article,  command   the  whole  and  give  orders 

1544 


rt.  S.  STATUTES  AT  LARGE.  June  4,  1920. 

for  what  is  needful  in  the  service,  unless  otherwise  directed  by  the  Presi- 
dent    *     *     *.— (41  Stat.,  811,  chap.  227.) 

See  note  to  section  1342,  Revised  Statutes. 

[1920,  June  4.  Special  allowances  to  naval  personnel.]  That  this  appro- 
priation and  the  appropriation  "Pay,  Marine  Corps,"  shall  be  available  for 
special  allowances  for  maintenance  to  officers  and  enlisted  men  of  the  Navy  and 
Marine  Corps  serving  under  unusual  conditions. —  (41  Stat.,  813,  chap.  228.) 

This  was  a  proviso  following  appropriations  for       See  note  to  section  1558,  Revised  Statutes, 
the  naval  service  under  the  caption  "Pay, 
Miscellaneous." 

[1920,  June  4.  Naval  petroleum  reserves.]  That  the  Secretary  of  the 
Navy  is  directed  to  talce  possession  of  all  properties  within  the  naval  petroleum 
reserves  as  are  or  may  become  subject  to  the  control  and  use  by  the  United 
States  for  naval  purposes,  and  on  which  there  are  no  pending  claims  or  appli- 
cations for  permits  or  leases  under  the  provisions  of  an  Act  of  Congress  approved 
February  25,  1920,  entitled  ''An  Act  to  provide  for  the  mining  of  coal,  phosphate, 
oil,  oil  shale,  gas,  and  sodium  on  the  public  domain,"  or  pending  applications 
for  United  States  patent  under  any  law;  to  conserve,  develop,  use,  and  operate 
the  same  in  his  discretion,  directly  or  by  contract,  lease,  or  otherwise,  and  to 
use,  store,  exchange,  or  sell  the  oil  and  gas  products  thereof,  and  those  from  all 
royalty  oil  from  lands  in  the  naval  reserves,  for  the  benefit  of  the  United  States: 
And  'provided further,  That  the  rights  of  any  claimant  under  said  Act  of  February 
25,  1920,  are  not  affected  adversely  thereby:  And  provided  further,  That  such 
sums  as  have  been  or  may  be  turned  into  the  Treasury  of  the  United  States 
from  royalties  on  lands  within  the  naval  petroleum  reserves  prior  to  July  1, 
1921,  not  to  exceed  $500,000,  are  hereby  made  available  for  this  purpose  until 
July  1,  1922:  Provided  further.  That  this  appropriation  shall  be  reimbursed 
from  the  proper  appropriations  on  account  of  the  oil  and  gas  products  from 
said  properties  used  by  the  United  States  at  such  rate,  not  in  excess  of  the 
market  value  of  the  oil,  as  the  Secretary  of  the  Navy  may  direct. — (41  Stat., 
813-814,  chap.  228.) 

See  act  of  February  25,  1920  (41  Stat.,  437-451);  see  also  acts  of  August  25,  1914  (38  Stat.. 
709)  and  August  29,  1916  (39  Stat.,  559-560). 

[1920,  June  4.   Claims  for  damage  caused  by  naval  aircraft.]     That  the 

Secretary  of  the  Navy  is  hereby  authorized  to  consider,   ascertain,   adjust, 

determine,  and  pay  out  of  this  appropriation  the  amounts  due  on  claims  for 

damages  whicli  liave  occurred  or  may  occur  to  private  property  growing  out  of 

the  operations  of  naval  aircraft,  where  such  claim  does  not  exceed  the  sum  of 

$500:  Provided  further.  That  all  claims  adjusted  under  this  authority  during 

any  fiscal  year  shall  be  reported  in  detail  to  the  Congress  by  the  Secretary  of 

the  Navy.— (41  Stat.,  814,  chap.  228.) 

Similar  provision  was  contained  in  act  of  July  11,  1919  (41  Stat.,  133);  see  also  act  of  .Tune 
24,  1910  (36  Stat.,  607),  and  references  thereunder. 

[1920,  June  4.  Hydrographic  Office,  naval  officers  detailed  to.]  That  the 
Secretary  of  the  Navy  is  authorized  to  detail  such  naval  officers  as  may  be 
necessary  to  the  Hydrographic  Office. —  (41  Stat.,  816,  chap.  228.) 


Similar  provision  was  contained  in  acts  of  July 
1,  1918  (40  Stat.,  708),  and  July  11,  1919 
(41  Stat.,  135). 


See  section  431,   Revised  Statutes,  and  note 
thereto. 


1545 


June  4,  1920. 


PL  S.  STATUTES  AT  LARGE. 


[1920,  June  4.  Summer  schools  for  boys ;  enrollments  in  Naval  Reserve  Force.] 
The  Secrettuy  of  the  Navy  is  hereby  authorized,  in  his  direction,  to  estabUsh 
at  two  of  the  permanent  naval  training  stations  experimental  summer  schools 
for  boys  between  the  ages  of  sixteen  and  twenty  years.  For  this  purpose  he  is 
authorized  to  use  such  buildings,  or  other  accommodations,  at  such  training 
stations;  to  loan  any  naval  equipment  necessary  for  such  purposes,  and  to  give 
instructions  which  will  fit  them  for  service  in  the  Navy  of  the  United  States. 
He  is  empowered  to  establish  and  enforce  such  rules  within  the  camp  as  may  be 
necessary  and  to  detail  such  members  of  the  naval  personnel  as  may  be  required 
in  order  to  encourage  and  execute  the  spirit  of  this  Act.  The  Secretary  of  the 
Navy  is  further  authorized  to  loan  the  necessary  naval  uniforms  during  the 
period  of  training  and  to  furnish  subsistence,  medical  attendance,  and  other 
necessary  incidental  expenses  for  those  attending  these  schools :  Provided,  That 
those  under  instruction,  with  the  consent  of  their  parents  or  their  guardians, 
shall  enroll  in  the  Naval  Reserve  Force  for  not  less  than  three  months,  and  no 
person  not  so  enrolled  shall  be  admitted  to  said  training  schools.  For  carrying 
out  the  provisions  of  this  paragraph  the  sum  of  $200,000  is  appropriated. — 
(41  Stat.,  817,  chap.  228.) 

See  act  of  August  29,  1916  (39  Stat.,  587),  as  to  enrollments  in  Naval  Reserve  Force. 

[1920,  June  4.  Naval  militia  made  part  of  Naval  Reserve  Force.] 


This  provision  read  as  follows: 
"That,  until  June  30,  1922,  of  the  Organized 
Militia  as  provided  by  law,  such  part  as  may  be 
duly  prescribed  in  any  State,  Territory,  or  the 
District  of  Columbia  shall  constitute  a  Naval 
Militia;  and,  until  June  30,  1922,  such  of  the 
Naval  Militia  as  now  is  in  existence,  and  as  now 
organized  and  prescribed  by  the  Secretary  of 
the  Na\'y  under  authority  of  the  Act  of  Con- 
gress approved  February  16,  1914,  shall  be  a 
part  of  the  Naval  Reserve  Force,  and  the  Sec- 
retary of  the  Navy  is  authorized  to  maintain 
and  provide  for  said  Naval  Militia  as  provided 
in  said  Act:  Provided  further,  That  upon  their 
enrollment  in  the  Naval  Reserve  Force,  and 
not  otherwise,  until  June  30,  1922,  the  mem- 
bers of  said  Naval  Militia  shall  have  all  the 
benefits,  gratuities,  privileges,  and  emoluments 
provided  by  law  for  other  members  of  the  Naval 
Reserve  Force;  and  that,  with  the  approval  of 


the  Secretary  of  the  Navy,  duty  performed  in 
the  Naval  Militia  may  be  counted  as  active 
service  for  the  maintenance  of  efficiency  re- 
quired by  law  for  members  of  the  Naval  Reserve 
Force:  And  provided  further,  That  all  moneys 
appropriated  for  the  Naval  Reserve  Force  or 
for  the  Naval  Militia  shall  constitute  one  fund 
and  hereby  are  made  available,  under  the  direc- 
tion of  the  Secretary  of  the  Navy,  for  both." 
(41  Stat.,  817-818,  chap.  228.) 

It  temporarily  modified  the  act  of  July  1, 
1918  (40  Stat.,  708),  which  repealed  all  laws 
relating  to  the  Naval  Militia.  The  act  of  Feb- 
ruary 16,  1914  (38  Stat.,  283-290),  referred  to 
above,  is  omitted  from  this  compilation,  in  bo 
far  as  relates  to  the  Naval  Militia,  because  of 
the  repealing  act  of  July  1,  1918,  above  cited, 
and  the  temporary  character  of  this  provision 
in  the  act  of  June  4,  1920. 


[1920,  June  4.  Automobiles,  quarterly  reports.]  Quarterly  reports  on  all 
gasoline  passenger  and  freight  automobiles  shall  be  made  on  Form  number  124, 
and  one  copy  of  each  report  shall  be  filed  in  the  Bureau  of  Yards  and  Docks. — 
(41  Stat.,  819,  chap.  228.) 

[1920,  June  4.  Retainer  pay,  Naval  Reserve  Force,  withheld  for  cause.]  That 
retainer  pay  provided  by  existing  law  shall  not  be  paid  to  any  member  of  the 
Naval  Reserve  Force  who  fails  to  train  as  provided  by  law  during  the  year  for 
which  he  fails  to  train. — (41  Stat.,  824,  chap.  228.) 

See  note  to  section  1556,  Revised  Statutes,  as  to  pay  of  Naval  Reserve  Force;  see  ajso  sec- 
tion 9  of  this  act  (41  Stat.,  837),  set  forth  below. 

[1920,  June  4.  Death  gratuity,  six  months'  pay.]  That  hereafter,  immediately 
upon  official  notification  of  the  death  from  wounds  or  disease,  not  the  result 


1546 


PL  3.  STATUTES  AT  LARGE. 


June  4,  1920. 


of  his  or  her  own  misconduct,  of  any  officer,  enlisted  man,  or  nurse  on  the  active 
list  of  the  Regular  Navy  or  Regular  Marine  Corps,  or  on  the  retired  list  when  on 
active  duty,  the  Paymaster  General  of  the  Navy  shall  cause  to  be  paid  to  the 
widow,  and  if  there  be  no  widow  to  the  child  or  children,  and  if  there  be  no  widow 
or  child,  to  any  other  dependent  relative  of  such  officer,  enlisted  man,  or  nurse 
previously  designated  by  him  or  her,  an  amount  equal  to  six  months'  pay  at  the 
rate  received  by  such  officer,  enlisted  man,  or  nurse  at  the  date  of  his  or  her  death. 
The  Secretary  of  the  Navy  shall  establish  regulations  requiring  each  officer  and 
enlisted  man  or  nurse  having  no  wife  or  child  to  designate  the  proper  dependent 
relative  to  whom  this  amount  shall  be  paid  in  case  of  his  or  her  death.  Said 
amount  shall  be  paid  from  funds  appropriated  for  the  pay  of  the  Navy  and  pay 
of  the  Marine  Corps,  respectively:  Provided,  That  nothing  in  this  section  or  in 
other  existing  legislation  shall  be  construed  as  making  the  provisions  of  this 
section  applicable  to  officers,  enlisted  men,  or  nurses  of  any  forces  of  the  Navy 
of  the  United  States  other  than  those  of  the  regular  Navy  and  Marine  Corps, 
and  nothing  in  this  section  shall  be  construed  to  apply  in  commissioned  grades 
to  any  officers  except  those  holding  permanent  or  probationary  appointments 
in  the  Regular  Navy  or  Marine  Corps :  Provided,  That  the  provisions  of  this  sec- 
tion shall  apply  to  the  officers  and  enlisted  men  of  the  Coast  Guard,  and  the  Sec- 
retary of  the  Treasury  will  cause  payment  to  be  made  accordingly. — (41  Stat., 
824-825,  chap.  228.) 

officers  on  active  duty,  having  previously  been 
limited  to  officers  of  the  active  list. 

On  the  same  day  another  act  (War  Risk 
Insurance  amendment  of  Oct.  6,  1917,  sec. 
312,  chap.  105)  enacted  that  "the  laws  provid- 
ing for  gratuities  or  payments  in  the  event  of 
death  in  the  service  and  existing  pension  laws 
shall  not  be  applicable  after  the  enactment  of 
this  amendment  to  persons  now  in  or  hereafter 
entering  the  military  or  naval  service,  or  to 
their  widows,  children,  or  their  dependents, 
except  in  so  far  as  rights  under  any  such  law 
shall  have  heretofore  accrued."  It  was  held 
by  the  Attorney  General  (31  Op.  Atty.  Gen., 
205)  that  the  enactment  last  quoted  (sec.  312 
of  the  act  of  Oct.  6,  1917,  40  Stat. ,  408\  repealed 
the  act  of  October  6,  1917  (40  Stat.,  392), 
pro^'iding  for  pavment  of  gratuities. 

Section  312  of 'the  act  of  October  6,  1917  (40 
Stat.,  408),  was  amended  and  reenacted  bv  act 
of  June  25,  1918,  section  17  (40  Stat.,  613),  so 
as  to  render  prior  gratuity  and  pension  laws 
inapplicable  to  persons  ' "  in  the  active  military 
or  naval  service"  on  October  6,  1917,  or  who 
thereafter  entered  the  '"active  military  or 
naval  service,"  or  to  their  widows,  etc. 


Prior  legislation.— An  allowance  of  six 
months'  pay  in  cases  of  death  occurring  in  line 
of  duty  was  first  authorized  in  the  Navy  by 
act  of  May  13,  1908  (35  Stat.,  128-129).  The 
provision  of  that  act  was  expressly  amended 
and  reenacted  by  act  of  August  22,  1912  (37 
Stat  329),  and  further  amendments  were  made 
by  acts  of  March  3,  1915  (38  Stat.,  938),  and 
August  29,  1916  (39  Stat.,  572),  relating  to 
deductions  from  the  gratuity  on  account  of 
funeral  expenses. 

By  the  same  act  of  March  3,  1915  (38  Stat., 
939),  provision  was  made  for  allowance  of  one 
year's  pay,  in  the  cases  of  officers  and  enlisted 
men  whose  death  resulted  from  aAiation 
accidents. 

By  act  of  October  6,  1917  (40  Stat.,  392, 
chap.  89),  it  was  provided  that  the  enactment 
of  August  22,  1912,  as  amended  by  act  of 
March  3,  1915,  both  above  cited,  ''be,  and  the 
same  is  hereby,  amended  by  inserting  after 
the  words  'on  the  active  list  of  the  Na^■y  or 
Iklarine  Corps '  a  comma  and  the  words  '  or 
of  any  retired  officer  or  enlisted  man  serving 
on  active  duty  during  the  continuance  of  the 
present  war,'"  thereby  extending  the  prior 
legislation  on  this  subject  to  include  retired 

[1920,  June  4.  Mining  coal  in  Alaska.]  That  $1,000,000  of  this  appro- 
priation shall  be  available  for  use,  in  the  discretion  of  the  Secretary  of  the 
Navy,  in  mining  coal  or  contracting  for  the  same  in  Alaska,  the  transportation 
of  the  same,  and  the  construction  of  coal  bunkers  and  the  necessary  docks  for 
use  in  supplying  ships  therewith;  and  the  Secretary  of  the  Navy  is  hereby 
authorized  to  select  from  the  public  coal  lands  in  Alaska  such  areas  as  may  be 


54641°— 22- 


-98 


1547 


June  4,  1920. 


PL  3.  STATUTES  AT  LARGE. 


necessary  for  use  by  him  for  the  purposes  stated  herein. —  (41  Stat.,  826,  chap. 
228.) 


This  was  a  proA-iso  following  appropriatione  for 
the  naval  service  under  tlie  caption 
"Fuel  and  transportation";  similar  pro- 
vision was  contained  in  acts  of  July  1,  1918 


(40  Stat.,  730),  and  July  11,  1919  (41  Stat., 
148). 
See  act  of  October  20,  1914,  section  2  (38  Stat., 
742). 

[1920,  June  4.  Change  in  name  of  bureau.]  The  Bureau  of  Steam  Engi- 
neering hereafter  sliall  he  designated  the  "Bureau  of  Engineering." — (41  Stat., 
828,  chap.  228.) 

See  section  419,  Revised  Statutes. 

[1920,  June  4.  Enlisted  strength,  Marine  Corps.]  The  authorized  enhsted 
strength  of  the  active  hst  of  the  Marine  Corps  is  hereby  permanently  estabhshed 
at  twenty-seven  thousand  four  hundred,  distribution  in  the  various  grades  to 
be  made  in  the  same  proportion  as  provided  under  existing  law. —  (41  Stat., 
830,  chap.  228.) 

See  note  to  section  1596,  Revised  Statutes. 

[1920,  June  4.  Temporary  and  reserve  officers.  Marine  Corps;  transfer  to 
permanent  service.] 


This  provision  read  as  follows: 

' '  That  all  officers  serving  temporarily  in  the 
grades  of  captain  and  below  upon  the  date  of 
the  passage  of  this  Act  shall  be  eligible  to  fill 
existing  vacancies  and  those  hereby  created 
in  the  permanent  authorized  strength  in  said 
grades  by  transfer  to  or  reappointment  in  the 
permanent  Marine  Corps  in  the  grades  not  above 
that  of  captain.  Transfers  so  made  shall  be 
without  regard  to  aoe,  and  if  found  not  quali- 
fied for  transfer  to  the  same  grade  as  that  held 
by  them  on  the  date  of  transfer  then  to  lower 
grades  after  qualification.  All  officers  so  trans- 
ferred shall  establish  to  the  satisfaction  of  the 
Secretary  of  the  Navy,  under  such  rules  as  he 
may  prescribe,  their  mental,  moral,  profes- 
sional, and  physical  qualifications  to  perform 
the  duties  of  the  grade  to  which  transferred  or 
reappointed  and  shall  take  precedence  with 
each  other  and  with  other  officers  of  the  Marine 
Corps  in  such  order  as  may  be  recommended 
by  a  board  of  marine  officers  and  approved  by 
the  Secretary  of  the  Navy:  Provided,  That  all 
persons  who  served  honorably  as  officers  in  the 
Marine  Corps  or  Marine  Corps  Reserve  on  active 
duty  at  any  time  between  April  6, 1917,  and  the 
date  of  the  passage  of  this  Act  and  who  have 
been    honorably    discharged    or    assigned    to 


inactive  duty  shall  be  eligible  for  permanent 
appointment  in  the  same  or  a  lower  rank  than 
that  held  on  discharge  or  assignment  to  in- 
active duty,  but  not  above  the  rank  of  captain, 
to  fill  vacancies  existing  or  hereby  created  in 
the  permanent  authorized  strength  of  the 
Marine  Corps  under  the  same  conditions  as 
those  above  prescribed  for  officers  now  in  the 
service:  Provided  further,  That  officers  now 
holding  temporary  commissions  in  the  Marine 
Corps  and  who  have  had  more  than  ten  years' 
service  therein,  if  not  found  qualified  for  per- 
manent commissions,  and  who  are  recom- 
mended by  the  board  herein  pro\ided  for, 
may  be  appointed  warrant  officers  in  the  Marine 
Corps;  and  the  authorized  number  of  warrant 
olhcers  is  hereby  increased  by  a  number  not 
to  exceed  fifty  to  provide  for  the  appointment 
of  the  aforesaid  officers:  Provided  further ,  That 
all  transfers  and  appointments  made  in  accord- 
ance with  the  provisions  of  this  section  shall  be 
accomplished  by  June  30,  1921:  Provided  fur- 
ther, That  the  officers  now  holding  temporary 
appointments  as  commissioned  officers  in  the 
Marine  Corps  may  retain  their  temporary  com- 
missions until  the  permanent  appointments 
provided  for  in  the  foregoing  section  shall  have 
been  made."     (41  Stat.,  830,  chap.  228.) 


[1920,  June  4,  sec.  2.  Naval  reservists,  active  duty  authorized;  enroll- 
ments restricted ;  commissioned  strength  of  Navy.]  That  the  Secretary  of  the 
Navy  is  hereby  authorized  to  employ  on  active  duty,  with  their  own  consent, 
members  of  the  Naval  Reserve  Force  in  enlisted  ratings,  the  number  so  employed 
not  to  exceed  during  any  fiscal  year  the  average  of  twenty  thousand  men: 
Provided,  That  the  number  of  naval  reservists,  so  employed  on  active  duty, 
together  with  the  total  number  of  enlisted  men  in  the  Regular  Navy,  shall  not 
exceed  the  total  enlisted  strength  of  the  Navy  as  authorized  by  law:  Provided 
further,  That  such  members  of  the  Naval  Reserve  Force  so  employed  shall 
serve  on  active  duty  for  not  less  than  twelve  nor  more  than  eighteen  months 


1548 


Pt.  3.  STATUTES  AT  LARGE.  June  4,  1920. 

unless  sooner  released:  Provided  further^  That  hereafter  no  person  shall  be  en- 
rolled in  the  Naval  Reserve  Force  except  for  general  service:  And  provided 
further,  That  the  number  of  commissioned  officers  of  the  line,  permanent,  tem- 
porary, and  reserve  on  active  duty  shall  not  exceed  4  per  centum  of  the  total 
authorized  enlisted  strength  of  the  Regular  Navy,  and  the  number  of  staff 
officers  on  active  duty  of  whatever  kind  shall  be  in  the  same  proportions  as 
authorized  by  existing  law:  Provided  further,  That  five  hundred  reserve  officers 
are  also  authorized  to  be  employed  in  the  aviation  and  auxiliary  service. — 
(41  Stat.,  834,  chap.  228.) 

See  act  of  August  29,  1916  (39  Stat.,  587-593), 
as  to  the  Naval  Reserve  Force;  see  note 
to  section  1417,  Revised  Statutes,  as  to 
authorized  enlisted  strength  of  the  Navy; 

[1920,  June  4,  sec.  2.  Temporary  and  reserve  officers  continued  on  duty.] 
This  provision  read  as  follows:  I    prescribed,  officers  of  the  Naval  Reserve  Force 


see  act  of  August  29,  1916  (39  Stat.,  576- 
577),  as  to  authorized  commissioned 
strength  of  the  Navy. 


"That,  until  December  31,  1921,  temporary 
appointments  now  existing  may  be  continued 
in  force  in  any  grade  or  rank,  not  to  exceed  the 
number  allowed  in  any  grade  or  rank  based 
upon  the  total  permanent  authorized  com- 
missioned strength  of  the  line  or  of  any  staff 
corps;    and,    within    the    limitations    herein 


may,  with  their  own  consent,  be  continued  on 
active  duty  ashore  or  afloat,  including  three 
on  shore  duty  in  the  Historical  Section  of  the 
Office  of  Naval  Intelligence,  who  may  be  re- 
tained on  active  duty  beyond  the  age  of  dis- 
enrollment  but  not  beyond  June  30,  1922. — 
(41  Stat.,  834,  chap.  228.) 


[1920,  June  4,  sec.  2.  Permanent  Navy  not  reduced.]  That  nothing  herein 
shall  be  construed  as  reducing  the  permanent  commissioned  or  enlisted  strength 
of  the  Regular  Navy  as  authorized  by  existing  law. —  (41  Stat.,  834,  chap. 
228.) 

[1920,  June  4,  sec.  2.  Retirement  of  reserve  and  temporary  officers.]  That 
all  officers  of  the  Naval  Reserve  Force  and  temporary  officers  of  the  Navy  who 
have  heretofore  incuiTcd  or  may  hereafter  incur  physical  disability  in  line  of 
duty  shall  be  eligible  for  retirement  under  the  same  conditions  as  now  provided 
by  law  for  officers  of  the  Regular  Navy  who  have  incurred  physical  disability 
in  line  of  duty.— (41  Stat.,  834,  chap.  228.) 


Retirement  of  officers  of  the  Regular  Navy  for 
physical  disability  is  provided  for  by  sec- 
tions 1448-1457,  Revised  Statutes;  retire- 
ment of  temporary  officers  was  pre\'iously 
authorized  by  act  of  May  22,  1917,  section 
9  (40  Stat.,  86);  retirement  of  enrolled 
members  of  the  Naval  Reserve  Force  after 
20  years'  service,  and  of  transferred  mem- 
bers of  the  Fleet  Naval  Reserve  after  30 


years'  service,  was  authorized  by  act  of 
August  29,  1916  (39  Stat.,  588  and  591\  as 
amended  bv  act  of  July  1,  1918  (40  Stat., 
710). 
By  act  of  July  1,  1918  (40  Stat.,  710),  it  was 
provided  "that  no  member  of  the  Naval 
Reserve  Force  shall  be  eligible  for  retire- 
ment other  than  for  physical  disability  in- 
curred in  line  of  duty." 


[1920,  June  4,  sec.  3.  Transfer  to  permanent  Navy  of  temporary,  reserve,  and 
Coast  Guard  officers;  naval  personnel  credited  with  Coast  Guard  service.]  That 
officers  holding  temporary  commissioned  and  warrant  ranks  in  the  Navy  and 
members  of  the  Naval  Reserve  Force  of  commissioned  and  warrant  ranks  shall 
be  eligible  for  transfer  to  an  appointment  in  the  permanent  grades  or  ranks  in 
the  Navy  for  wliich  they  may  be  found  qualified  not  above  that  held  by  them 
on  the  date  of  transfer,  but  not  to  exceed  a  total  of  one  thousand  two  hundred 
commissioned  officers  in  the  line,  of  which  number  five  hundred  may  be  appointed 
from  class  five,  Naval  Reserve  Flying  Corps,  with  proportionate  number  in  all 
Staff  Corps  as  now  authorized  by  law,  except  that  the  Medical,  Dental,  and 
Supply  Corps  shall  be  entitled  to  such  additional  numbers  as  are  necessary  to 
make  up  the  full  quota  of  officers  in  those  corps,  as  now  authorized  by  law: 

1549 


June  4,  1920.  Pi.  -i.  STATUTES  AT  LARGE. 

Provided,  That  officers  so  appointed  to  the  line  of  the  Navy  shall  take  rank  in 
accordance  with  their  precedence  while  holding  temporary  rank,  and  members' 
of  the  Nav^al  Reserve  Force  of  commissioned  and  warrant  ranks  found  qualified 
for  a  given  rank  shall  be  arranged  according  to  their  precedence  among  them- 
selves and  commissicmed  in  the  permanent  service  next  after  the  lowest  tempo- 
rary officer  who  qualifies  for  the  same  rank  and  is  appointed  in  accordance  with 
the  provisions  of  this  Act. 

Provided  further,  That  included  in  the  number  of  transfers  and  appoint- 
ments hereinbefore  allowed,  commissioned  officers  of  the  Coast  Guard,  who  have 
served  creditably  mider  the  Navy  Department  in  the  War  with  the  German 
Government,  upon  suitable  application  approved  by  the  Secretary  of  the  Navy 
and  the  Secretary  of  the  Treasury,  may  be  appointed  to  a  permanent  rank  or 
grade  in  the  Navy  for  which  found  qualified  by  a  board  of  naval  officers  under 
the  provisions  of  existing  law,  but  not  above  the  rank  of  lieutenant  commander, 
and  shall  take  such  precedence  therein  as  the  Secretary  of  the  Navy  may  deter- 
mine: Provided  fHriher,  That  for  the  purposes  of  computing  longevity  pay  and 
retirement  privileges  of  officers  and  enlisted  men  of  the  Navy,  all  creditable 
service  in  the  Coast  Guard  and  former  Revenue-Cutter  Service  shall  be  counted. — 
(41  Stat.,  834-835,  chap.  228.) 

Temporary  appointments  were  to  terminate  not 

later  than  December  31,  1921,  in  accordance 

with  section  2  of  this  act  (41  Stat.,  834),  set 

forth  above. 
Precedence  of  all  officers  transferred  under  this 

section  to  the  staff  corps  was  to  be  fixed 

upon  recommendation  of  a  board  of  naval 

officers  in  accordance  with  section  4  of  this 

act,  set  forth  below,  which  also  limited 

transfers  to  rank  of  lieutenant. 
Coast  Guard  Service  was  credited  to  naval  offi- 
cers for  pay  purposes  by  act  of  May  18, 1920, 

section  11  (41  Stat.,  604). 


Qualifications  for  transfer  and  appoint- 
ment.— -No  transfer  or  appointment  can  be 
made  under  this  pro\dsion  unless  the  appointee, 
at  the  time  of  such  appointment,  holds  a  tem- 
porary commissioned  or  warrant  rank  in  the 
Navy  or  is  a  member  of  the  Naval  Reserve 
Force.     (File  26521-473,  Oct.  24,  1921.) 

As  all  temporary  appointments,  if  not  sooner 
revoked,  will  automatically  terminate  on 
December  31,  1921,  under  section  2  of  this  act 
(set  forth  above),  that  date  would  be  the  latest 
on  which  temporary  officers  could  ])e  appointed 
to  the  Navy  under  "section  3.  (File  26521-473, 
Oct.  24,  1921.) 

[1920,  June  4,  sec.  4.  Commissioned  warrant  officers  with  war  service,  pro- 
motion of ;  precedence  of  transferred  officers ;  restriction  on  permanent  rank ; 
reversion  to  former  status  on  professional  failure.]  That  in  addition  to  the  num- 
ber of  tranfers  and  appointments  hereinbefore  allowed,  commissioned  warrant 
officers  of  more  than  fifteen  years'  service  since  date  of  warrant  or  date  of  first 
appointment  as  paymaster's  clerk,  pharmacist  or  mate,  who  have  creditably 
served  in  the  war  with  the  German  Government  in  temporary  commissioned 
ranks  or  grades  in  the  regular  Navy,  shall  be  appointed  to  a  permanent  rank 
or  grade  for  which  they  may  be  qualified  as  established  and  shown  by  their 
records  of  service  during  their  term  of  service  not  above  the  temporary  rank  or 
grade  held  by  them  at  the  time  of  transfer:  Provided,  That  officers  so  transferred 
to  the  line  of  the  Navy  shall  take  rank  therein  in  accordance  with  their  prece- 
dence while  holding  temporary  rank:  Provided  further,  That  all  officers  so  trans- 
ferred in  accordance  with  sections  3  and  4  of  this  Act  to  the  staff  corps  of  the 
Navy  shall  take  precedence  with  each  other  and  with  other  officers  in  the  Navy 
in  such  order  as  may  be  recommended  by  a  board  of  naval  officers  and  approved 
by  the  Secretary  of  the  Navy:  Provided  further,  That  no  transfers  or  appoint- 
ments made  in  accordance  with  sections  3  and  4  of  tliis  Act  shall  be  to  a  higher 
grade  or  rank  than  lieutenant  in  the  Navy:  And  provided  further.  That  officers 

1550 


Pt.  3.  STATUTES  AT  LARGE.  June  4,  1020. 

appointed  to  the  permanent  Navy  in  accordance  with  the  foregoing  sections 
who  now  hold  permanent  warrant  or  permanent  commissioned  warrant  rank 
in  the  United  States  Navy  shall,  if  they  thereafter  fail  professionally  on  exam- 
ination for  promotion,  revert  to  such  permanent  warrant  or  permanent  com- 
missioned warrant  status. — (41  Stat.,  835,  chap.  228.) 

[1920,  June  4,  sec.  5.  Age  limits  for  appointments  under  preceding  sections.] 
That  officers  appointed  under  M\y  of  the  foregoing  provisions  shall  be  not  more 
than  thirty-five  years  of  age  when  so  appointed  to  the  line  of  the  Navy,  Con- 
struction Corps,  or  Supply  Corps,  and  not  more  than  forty-three  years  of  age 
when  so  appointed  to  the  Corps  of  Chaplains,  or  to  the  Medical,  Dental,  or 
Civil  Engineering  Corps:  Provided,  That  said  age  limits  shall  be  increased  in 
the  cases  of  officers  who  have  rendered  prior  service  as  paymaster's  clerks,  or 
as  mates,  or  as  warrant  or  commissioned  officers  in  the  naval  service  to  the 
extent  of  all  prior  naval  service:  Provided  further ,  That  officers  originally 
appointed  to  the  Dental  Corps  above  the  said  age  limits  shall  be  eligible  for 
appointment  and  promotion  under  this  act  irrespective  of  age. — (41  Stat., 
835-836,  chap.  228.) 

[1920,  June  4,  sec.  5.  Statutory  requirements  for  promotion  temporarily 
suspended.]  That  officers  of  the  line  of  the  Navy  who  are  appointed  thereto 
pursuant  to  this  Act  from  sources  other  than  the  Naval  Academy  shall  not  be 
ineligible  for  promotion  by  reason  of  age  as  prescribed  by  the  Act  of  August  29, 
1916  (Thirty-ninth  Statutes,  page  579),  until  they  have  rendered  ten  years' 
service  in  the  grade  of  lieutenant  commander,  six  years'  service  in  the  grade  of 
commander,  or  eight  years'  service  in  the  grade  of  captain,  respectively,  upon 
the  completion  of  which  service  such  officers,  if  then  ineligible  for  promotion 
by  reason  of  age,  shall  be  retired  in  accordance  with  said  Act:  And  provided 
further,  That  until  June  30,  1923,  promotions  to  lieutenant  (junior  grade)  and 
lieutenant  may  be  made  without  regard  to  length  of  service:  And  provided 
further.  That  until  June  30,  1923,  officers  of  the  permanent  Navy  who  have 
served  satisfactorily  during  the  war  with  the  German  Government  in  a  tem- 
porary grade  or  rank  shall  be  eligible  under  the  provisions  of  existing  law  for 
selection  for  promotion  or  for  promotion  to  the  same  permanent  grade  or  rank 
without  regard  to  statutory  requirements  other  than  age  and  professional  and 
physical  examination. —  (41  Stats.,  836,  chap.  228.) 

[1920,  June  4,  sec.  6.  Temporary  appointments  in  lower  grades ;  precedence.] 


This  provision  read  as  follow^s: 
"That  in  making  reductions  in  rank  as  may 
be  required  by  this  Act,  officers  holding  tem- 
porary appointments  may  be  given  temporary' 


appointments  in  lower  grades,  and  officers  so 
appointed  shall  take  precedence  from  the 
dates  of  their  original  appointments  in  such 
lower  grades."     (41  Stat.,  836,  chap.  228.) 


[1920,  June  4,  sec.  6.  Bonus  and  travel  pay  on  extension  of  enlistment  or 
transfer  to  another  branch  of  naval  service.]  That  in  case  any  enlisted  man  or 
enrolled  man  who,  since  the  11th  day  of  November,  1918,  has  been  or  hereafter 
shall  be  discharged  from  any  branch  or  class  of  the  naval  service  for  the  purpose 
of  reenlisting  in  the  Navy  or  Marine  Corps  or  heretofore  has  extended  or  here- 
after shall  extend  his  enlistment  therein,  he  shall  be  entitled  to  the  payment  of 
the  .S60  bonus  provided  in  section  1406  of  the  Act  entitled  "An  Act  to  provide 
revenue,  and  for  other  purposes,"  approved  February  24,  1919,  and  to  travel 


1551 


June  4,  1920.  Pt.  S.  STATUTES  AT  LARGE. 

pay  as  authorized  in  section  3  of  the  Act  entitled  ''An  Act  permitting  any 
person  wlio  has  served  in  the  United  States  Army,  Navy,  or  Marine  Corps  in  the 
present  war  to  retain  his  imiform  and  personal  equipment  and  to  wear  the  same 
under  certain  conditiojis,"  approved  February  28,  1919:  Provided,  That  only 
one  bonus  shall  be  paid  to  the  same  person. — (41  Stat.,  836,  chap.  228.) 


The  act  of  February  24,  1919,  section  1406  (40 
Stat.,  1151),  was  temporary  legislation, 
providing  for  payment  of  $(50  bonus  to  men 
discharged  from  the  military  or  naval  forces 
or,  in  the  case  of  reservists,  released  from 
active  duty.  See  note  to  section  1569, 
Revised  Statutes,  under  "24.  Sixty  dollar 
bonus  on  discharge." 

The  act  of  February  28,  1919,  section  3  (40 
Stat.,  1203),  reenacted  with  amendments, 
section  126  of  an  act  approved  June  3,  1916 


(39  Stat.,  217).     See  the  latter  act  and  note 
thereto;    see   also    note    to   section    1569, 
Revised  Statutes,  under  "20.  Mileage  and 
transportation  on  discharge." 
Above  section  construed  as  temporary. 
— Section  6  of  the  act  of  June  4,  1920,  above  set 
forth,  was  held  by  the  Comptroller  of  the  Treas- 
ury to  apply  only  to  men  who  were  in  the  Navy 
or  Marine  Corps  on  November  11,  1918,  and  to 
be  inapplicable  to  anv  enlistment  accomplished 
after  that  date.     (27"Comp.  Dec,  32,  39,  305.) 

[1920,  June  4,  sec.  7.  Term  of  enlistment;  grades  and  ratings  established.] 
That  hereafter  enlistments  in  the  Navy  and  in  the  Marine  Corps  may  be  for  terms 
of  two,  three,  or  four  years,  and  all  laws  now  applicable  to  four-year  enlistments 
shall  apply,  under  such  regulations  as  may  be  prescribed  by  the  Secretary  of 
the  Navy,  to  enlistments  for  a  shorter  period  with  proportionate  benefits  upon 
discharge  and  reenlistment :  Provided,  That  hereafter  the  Secretary  of  the  Navy 
is  authorized,  in  his  discretion,  to  establish  such  grades  and  ratings  as  may  be 
necessary  for  the  proper  administration  of  the  enlisted  personnel  of  the  Navy 
and  Marine  Corps.— (41  Stat.,  836,  chap.  228.) 

See  notes  to  sections  1418,  1569,  1573,  and  1608,  Revised  Statutes. 

[1920,  June  4,  sec.  8.  Unauthorized  wearing  of  uniform.]  That  section  125  of 
the  Act  entitled  "An  Act  for  making  further  and  more  effectual  provisions  for 
the  national  defense,  and  for  other  purposes,"  approved  June  3,  1916,  shall 
hereafter  be  in  full  force  and  effect  as  originally  enacted,  notwithstanding  any- 
thing contained  in  the  Act  entitled  "An  Act  permitting  any  person  who  has 
served  in  the  United  States  Army,  Navy,  or  Marine  Corps  in  the  present  war  to 
retain  his  uniform  and  personal  equipment  and  to  wear  the  same  under  certain 
conditions,"  approved  February  28,  1918:  Provided,  That  the  words  ''or  the 
Secretary  of  the  Navy"  shall  be  inserted  inmaediately  after  the  words  "the 
Secretary  of  War"  wherever  those  words  appear  in  section  125  of  the  Act 
approved  June  3,  1916,  hereinbefore  referred  to. — (41  Stat.,  836,  chap.  228.) 


See  act  of  June  3,  1916,  section  125  (39  Stat., 

216-217),  and  note  thereto. 
The  reference  in  the  above  section  to  the  act  of 


"February  28,  1918,"  was  apparently 
intended  to  mean  the  act  of  February  28, 
1919  (40  Stat.,  1202-1203). 


[1920,  June  4,  sec.  9.  Naval  Reserve  Force,  withholding  retainer  pay  for  cause ; 
active  service  requirements.  Fleet  Naval  Reserve.]  That  hereafter  the  Secretary 
of  the  Navy  may,  in  his  discretion,  withhold  any  part  or  all  of  the  retainer  pay 
which  may  be  due  a  member  of  the  Naval  Reserve  Force  where  such  members 
fail  to  perform  such  duty  as  may  be  prescribed  by  law  for  the  maintenance  of 
the  efRciency  of  the  Naval  Reserve  Force :  Provided,  That  any  money  so  withheld 
shall  be  credited  to  the  appropriation  for  organizing  and  administering  the 
Naval  Reserve  Force  to  be  used  for  any  purpose  that  the  Secretary  of  the  Navy 
may  consider  proper  to  increase  the  efficiency  of  the  Naval  Reserve  Force: 
Provided  further ,  That  hereafter  the  minimum  amount  of  active  service  required 
for  the  maintenance  of  the  efficiency  of  the  Fleet  Naval  Reserve  shall  be  the  same 
as  for  the  Naval  Reserve.— (41  Stat.,  837,  chap.  228.) 

1552 


Pt.  3.  STATUTES  AT  LARGE. 


June  5,  1920. 


See  act  of  August  29,  1916  (39  Stat.,  587-593), 
and  note  to  section  1556,  Re\ised  Statutes, 
under  "37.  Naval  Reserve  Force";  see  also 


provision  in  this  act  (41  Stat.,  824)  set  forth 
above,  as  to  withholding  retainer  pay. 


[1920,  June  4,  sec.  10.  Age  limits  for  promotion  temporarily  deferred. 


] 


This  section  read  as  follows: 

'  'That  the  age  limits  for  promotion  by  selec- 
tion, which,  under  existing  law,  will  become 
effective  on  June  30,  1920,  are  hereby  deferred 
until  June  30,  1921,  in  the  cases  only  of  those 


officers   who  may   request   such   deferment." 
(41  Stat.,  837,  Chap.  228.) 

It  temporarily  modified  the  act  of  August 
29,  1916  (39  Stat.,  579). 


[1920,  June  5.  Titles  of  Coast  Guard  Officers.]  Titles  of  commissioned  officers 
of  the  Coast  Guard  are  hereby  changed  as  follows:  Senior  captain  to  commander, 
captain  to  lieutenant  commander,  first  lieutenant  to  lieutenant,  second  lieu- 
tenant to  lieutenant  junior  grade,  third  lieutenant  to  ensign,  captain  of  engineers 
to  lieutenant  commander  (engineering) ,  first  lieutenant  of  engineers  to  lieutenant 
(engineering),  second  lieutenant  of  engineers  to  lieutenant,  junior  grade  (engi- 
neering), and  third  lieutenant  of  engineers  to  ensign  (engineering):  Provided, 
That  all  laws  applicable  to  the  titles  hereby  abolished  in  the  Coast  Guard  shall 
apply  to  the  titles  hereby  established. — (41  Stat.,  879,  chap.  235.) 

See  note  to  section  1492,  Revised  Statutes. 

[1920,  June  5.  Hauling  for  Government  in  District  of  Columbia.]  Hereafter 
the  Secretary  of  the  Interior  may  have  sand,  gravel,  stone,  and  other  material 
hauled  for  the  municipal  government  of  the  District  of  Columbia  and  for 
branches  of  the  Federal  service  in  the  District  of  Columbia,  whenever  it  may  be 
practicable  and  economical  to  have  such  work  performed  by  using  trucks  of  the 
Government  fuel  yards  not  needed  at  the  time  for  the  hauling  of  fuel.  Payment 
for  such  work  shall  be  made  on  the  basis  of  the  actual  cost  to  the  Government  fuel 
yards.— (41  Stat.,  913,  chap.  235.) 

[1920,  June  5.  Advance  deliveries  of  Government  fuel,  District  of  Columbia.] 
Hereafter  the  Secretary  of  the  Interior  is  authorized  to  deliver,  durmg  the 
months  of  April,  May,  and  June  of  each  year,  to  all  branches  of  the  Federal 
service  and  the  municipal  government  in  the  District  of  Columbia,  such  quan- 
tities of  fuel  for  their  use  during  the  following  fiscal  year  as  it  may  be  prac- 
ticable to  store  at  the  points  of  consumption,  payment  therefor  to  be  made 
by  these  branches  of  the  Federal  service  and  municipal  government  from 
their  applicable  appropriations  for  such  fiscal  year. —  (41  Stat.,  913,  chap.  235.) 

See  acts  of  July  1,  1918  (40  Stat.,  672-673),  and  July  11,  1919  (41  Stat.,  148). 

[1920,  June  5,  sec.  3.  Annual  report,  Government  buildings.  District  of 
Columbia.]  That  hereafter  it  shall  be  the  duty  of  the  head  of  each  department 
and  independent  establishment  of  the  Government  to  submit  to  Congress 
annually  in  the  Book  of  Estimates,  a  statement  giving  for  each  of  the  Govern- 
ment-owned buildings  in  the  District  of  Columbia  under  their  respective  juris- 
diction the  following  information  for  the  preceding  fiscal  year:  The  location 
and  valuation  of  each  building,  the  purpose  or  purposes  for  which  used,  and  the 
cost  of  care,  maintenance,  upkeep,  and  operation  thereof  per  square  foot  of 
floor  space. —  (41  Stat.,  945,  chap.  235.) 


See  notes  to  sections  429-430,  Revised  Statutes. 

As  to  buildings  rented  in  District  of  Columbia, 

see  acts  of  July  16,  1892  (27  Stat.,  199), 


May  1,  1913,  section  3  (38  Stat.,  3),  and 
May  29,  1920,  section  7  (41  Stat.,  691). 


1553 


June  5,  1920.  Ft.  S.  STATUTES  AT  LARGE. 

[1920,  June  6,  sec.  7.  Typewriters,  restriction  on  sale  or  exchange.]  Here- 
after no  dopartmont  or  t)ther  Government  establishment  shall  dispose  of  any 
t^'pewriting  machines  by  sale,  exchange,  or  as  part  payment  for  another  type- 
writer, that  has  been  used  less  than  three  years. —  (41  Stat.,  947,  chap.  235.) 


A  somewhat  different  provision  on  this  subject 
was  contained  in  act  of  May  29,  1920, 
section  4  (41  Stat.,  689);  see  also  act  of 


March  3,  1921  (41  Stat.,  126.5-1266). 
See  act  of  March  4,  1915,  section  5  (38  Stat., 
1161). 


[1920,  June  6.  Aerial  operations,  jurisdiction  of  Army  and  Navy  defined.] 
That  hereafter  the  Army  Air  Service  shall  control  all  aerial  operations  from 
land  bases,  and  Naval  Aviation  shall  have  control  of  all  aerial  operations  attached 
to  a  fleet,  including  shore  stations  whose  maintenance  is  necessary  for  operation 
connected  with  the  fleet,  for  construction  and  experimentation  and  for  the 
training  of  personnel. —  (41  Stat.,  954,  chap.  240.) 

See  act  of  August  29,  1916  (39  Stat.,  582). 

[1920,  June  6.  Transportation  of  disabled  sailors,  marines,  etc.,  on  fur- 
lough ;  reduced  rates.]  The  Secretary  of  War  and  the  Secretary  of  the  Navy, 
under  such  regulations  and  restrictions  as  they  may  provide,  are  hereby  author- 
ized to  issue  to  all  wounded  and  otherwise  disabled  soldiers,  sailors,  or  marines 
under  treatment  in  any  Army,  Navy,  or  other  hospital,  w^ho  are  given  fur- 
loughs at  any  time,  a  furlough  certificate,  which  certificate  shall  be  signed  by 
the  commanding  ofiicer  at  such  hospital.  This  furlough  certificate  w^hen 
presented  by  such  furloughed  soldier,  sailor,  or  marine  to  the  agent  of  any 
railroad  or  steamship  company  over  whose  lines  said  soldier,  sailor,  or  marine 
may  travel  to  and  from  his  home  during  the  furlough  period  shall  entitle  said 
soldier,  sailor,  or  marine  to  purchase  a  ticket  from  the  point  of  departure 
to  point  of  destination  and  return  at  the  rate  of  1  cent  per  mUe,  and  on  pres- 
entation of  such  certificate  on  which  such  ticket  has  been  issued  the  railroad 
or  steamship  company  issuing  such  ticket  shall  be  entitled  to  receive  from  the 
Treasury  of  the  United  States  the  difference  between  the  amount  paid  for  such 
ticket  at  the  rate  of  1  cent  per  mile  and  the  regular  scheduled  rate  for  such 
ticket.  The  sum  of  S250,000,  or  so  much  thereof  as  may  be  necessary,  is  hereby 
appropriated,  out  of  any  funds  in  the  Treasury  not  otherwise  appropriated, 
for  the  purpose  of  carrying  out  the  provisions  of  this  paragraph. —  (41  Stat., 
975-976,  chap.  240.) 

[1920,  June  5.  Sale  of  subsistence  stores,  etc.,  to  discharged  persons  under 
Public  Health  treatment.]  That  hereafter  honorably  discharged  officers  and 
enlisted  men  of  the  Army,  Navy,  or  ]\Iarine  Corps  who  are  being  cared  for  and 
are  receiving  medical  treatment  from  the  Public  Health  Service  shall,  while 
undergoing  such  care  and  treatment,  be  permitted  to  purchase  subsistence 
stores  and  articles  of  other  authorized  supplies,  except  articles  of  the  uniform, 
from  the  Army,  Navy^,  and  Marine  Corps  at  the  same  price  as  charged  the 
officers  and  enlisted  men  of  the  Army,  Navy,  and  Marine  Corps. —  (41  Stat., 
976,  chap.  240.) 

See  act  of  March  4, 1913  (37  Stat.,  909),  and  references  thereunder. 

[1920,  June  5.  Development  of  merchant  marine  for  service  as  a  naval  auxil- 
iary.] That  it  is  necessary  for  the  national  defense  and  for  the  proper  growth 
of  its  foreign  and  domestic  commerce  that  the  United  States  shall  have  a  mer- 

1554 


PL  3.  STATUTES  AT  LARGE.  June  5,  1920- 

chant  marine  of  the  best  equipped  and  most  suitable  types  of  vessels  sufficient 
to  carry  the  greater  portion  of  its  commerce  and  serve  as  a  naval  or  military 
auxiliary  in  time  of  war  or  national  emergency,  ultimately  to  be  owned  and  op- 
erated privately  by  citizens  of  the  United  States;  and  it  is  hereby  declared  to 
be  the  policy  of  the  United  States  to  do  whatever  may  be  necessary  to  develop 
and  encourage  the  maintenance  of  such  a  merchant  marine,  and,  in  so  far  as 
may  not  be  inconsistent  with  the  express  provisions  of  this  Act,  the  United 
States  Shipping  Board  shall,  in  the  disposition  of  vessels  and  shipping  property 
as  hereinafter  provided,  in  the  making  of  rules  and  regulations,  and  in  the  admin- 
istration of  the  shipping  laws  keep  always  in  view  this  purpose  and  object  as 
the  primary  end  to  be  attained. —  (41  Stat.,  988,  chap.  250.) 

Seeact  of  March  3, 1891,  section  4  (26  Stat.,  831),  mail  vessels,  and  section  9  (26  Stat.,  832), 

as  to  construction  of  ocean  mail  vessels  as  to  the  taking  of  such  vessels  for  use  by 

with  particular  reference  to  their  prompt  the  United  States;  see  also  acts  of  Sep- 

conversion  into  auxiliary  cruisers;  see  also  tember  7,  1916,  section  10  (39  Stat.,  731), 

section  7  of  the  same  act  (26  Stat.,  832),  as  and  March  4,  1917  (39  Stat.,   1192-1193). 
to  detail  of  naval  officers  for  duty  on  ocean 

[1920,  June  5,  sec.  17.  Transfer  of  docks,  etc.,  from  Shipping  Board  to  Navy 
Department,  etc.]  That  the  board  is  authorized  and  directed  to  take  over  on 
January  1,  1921,  the  possession  and  control  of,  and  to  maintain  and  develop, 
all  docks,  piers,  warehouses,  wharves  and  terminal  equipment  and  facilities, 
including  all  leasehold  easements,  rights  of  way,  riparian  rights  and  other  rights, 
estates  and  interests  therein  or  appurtenant  thereto,  acquired  by  the  President 
by  or  under  the  Act  entitled  "An  Act  making  appropriations  to  supply  urgent 
deficiencies  in  appropriations  for  the  fiscal  year  ending  June  30,  1918,  and  prior 
fiscal  years,  on  account  of  war  expenses,  and  for  other  purposes,"  approved 
March  28,  1918. 

The  possession  and  control  of  such  other  docks,  piers,  warehouses,  wharves 
and  terminal  equipment  and  facilities  or  parts  thereof,  including  all  leasehold 
easements,  rights  of  way,  riparian  rights  and  other  rights,  estates  or  interests 
therein  or  appurtenant  thereto  which  were  acquired  by  the  War  Department 
or  the  Navy  Department  for  military  or  naval  purposes  during  the  war  emer- 
gency may  be  transferred  by  the  President  to  the  board  whenever  the  President 
deems  such  transfer  to  be  for  the  best  interests  of  the  United  States. 

The  President  may  at  any  time  he  deems  it  necessary,  by  order  setting  out 
the  need  therefor  and  fixing  the  period  of  such  need,  permit  or  transfer  the  pos- 
session and  control  of  any  part  of  the  property  taken  over  by  or  transferred  to 
the  board  under  this  section  to  the  War  Department  or  the  Navy  Department 
for  their  needs,  and  when  in  the  opinion  of  the  President  such  need  therefor 
ceases  the  possession  and  control  of  such  property  shall  revert  to  the  board. 
None  of  such  property  shall  be  sold  except  as  may  be  hereafter  provided  by 
law.— (41  Stat.,  994,  chap.  250.) 

[1920,  June  5.  Deficient  midshipmen,  reexamination  and  special  instruction 
required.]  That  until  otherwise  provided  by  law  no  midshipman  found  defi- 
cient at  the  close  of  the  last  and  succeeding  academic  terms  shall  be  involun- 
tarily discontinued  at  the  Naval  Academy  or  in  the  service  unless  he  shall  fail 
upon  reexamination  in  the  subjects  in  which  found  deficient  at  an  examination 
to  be  held  at  the  beginning  of  the  next  and  succeeding  academic  terms,  and  the 
Secretary  of  the  Navy  shall  provide  for  the  special  instruction  of  such  mid- 
1555 


June  5,  1920.  PL  3.  STATUTES  AT  LARGE. 

shipmcn  in  the  subjects  in  which  found  deficient  during  the  period  between 
academic  terms. —  (41  Stat.,  1028,  chap.  253.) 

See  note  to  section  1519,  Revised  Statutes,  under  "Act  of  June  5,  1920,  construed." 

[1920.  June  5,  Annual  report  of  Government  publications.]  Hereafter  the 
head  of  each  department  and  independent  estabhshment  of  the  Government 
shall  on  the  first  day  of  each  regular  session  submit  in  writing  a  report  to  the 
Congress  giving  the  aggregate  number  of  the  various  publications  it  has  issued 
iluring  the  preceding  fiscal  year  giving  same  in  detail,  and  shall  also  report  the 
cost  of  paper  used  for  such  publications,  cost  of  printing  and  the  cost  of  prepara- 
tion of  each  publication,  and  the  number  of  each  which  has  been  distributed. — 
(41  Stat.,  1037,  chap.  253.) 

See  act  of  January  12,  1895,  section  19  (28  Stat.,  603);  see  also  notes  to  sections  429-430, 
Revised  Statutes. 

[1920,  June  5.  Naval  officers  authorized  to  accept  offices  in  South  America.] 
That  the  President  of  the  United  States  be,  and  he  is  hereby,  authorized,  upon 
application  from  the  foreign  Governments  concerned,  and  whenever  in  his  dis- 
cretion the  public  interests  require,  to  detail  officers  of  the  United  States  naval 
service  to  assist  the  Governments  of  the  Republics  of  South  America  in  naval 
matters:  Provided,  That  the  officers  so  detailed  be,  and  they  are  hereby,  author- 
ized to  accept  offices  from  the  Government  to  which  detailed  with  such  com- 
pensation and  emoluments  therefor  as  may  be  first  approved  by  the  Secretary 
of  the  Navy:  Provided  further,  That  while  so  detailed  such  officers  shall  receive, 
in  addition  to  the  compensation  and  emoluments  allowed  them  by  such  Govern- 
ments, the  pay  and  allowances  of  their  rank  in  the  United  States  naval  service, 
and  they  shall  be  entitled  to  the  same  credit  while  so  detailed  for  longevity, 
retirement,  and  for  all  other  purposes  that  they  would  receive  if  they  were  serv- 
ing with  the  United  States  naval  service. — (41  Stat.,  1056,  chap.  261.) 

See  joint  resolution  of  October  13,  1914  (38  Stat.,  780),  and  references  thereunder. 

[1920,  June  5.  Operation  of  Government  radio  stations.]  That  all  land, 
ship,  and  airship  radio  stations,  and  all  apparatus  therein  owned  by  the  United 
States  may  be  used  by  it  for  receiving  and  transmitting  messages  relating  to 
Government  business,  compass  reports,  and  the  safety  of  ships.     *     *     * 

Sec.  3.  That  all  stations  owned  and  operated  by  the  Government,  except 
as  herein  otherwise  provided,  shall  be  used  and  operated  in  accordance  with  the 
provisions  of  the  Act  of  Congress  entitled  "An  Act  to  regulate  radio  communica- 
tion," approved  August  13,  1912.— (41  Stat.,  1061,  chap.  269,  Pub.  Res.  No. 
48.) 


Section  2  of  this  resolution  provided  as  follows : 
"That  the  Secretary  of  the  Navy  is 
hereby  authorized,  under  terms  and  condi- 
tions and  at  rates  prescribed  by  him,  which 
rates  shall  be  just  and  reasonable,  and 
which,  upon  complaint,  shall  be  subject 
to  review  and  revision  by  the  Interstate 
Commerce  Commission,  to  use  all  radio 
stations  and  apparatus,  wherever  located, 
owned  by  the  United  States  and  under  the 
control  of  the  Navy  Department — (a)  for 
the  reception  and  transmission  of  press 
messages  offered  by  any  newspaper  pub- 
lished in  the  United  States,  its  Territories 


or  possessions,  or  published  by  citizens  of 
the  United  States  in  foreign  countries,  or 
by  any  press  association  of  the  United 
States,  and  (b)  for  the  reception  and  trans- 
mission of  private  commercial  messages: 
Provided,  That  the  rates  fixed  for  the 
reception  and  transmission  of  commercial 
messages,  other  than  press  messages,  shall 
not  be  less  than  the  rates  charged  by 
privately  owned  and  operated  stations 
for  like  messages  and  service:  Provided 
further,  That  the  right  to  use  such  stations 
for  any  of  the  purposes  named  in  tliis 
section  shall  terminate  and  cease  as  be- 


1556 


PL  3,  STATUTES  AT  LARGE.  Mar.  3,  1921. 


tween  countries  or  localities  or  between 
any  locality  and  privately  operated  sliips, 
whenever  privately  owned  and  operated 
stations  are  capable  of  meeting  the  normal 
communication  requirements  between 
such  countries  or  localities  or  between  any 
locality  and  privately  operated  ships,  and 


the  Secretary  of  Commerce  shall  have 
notified  the  Secretary  of  the  Navy  thereof, 
and  all  rights  conferred  by  this  section 
shall  terminate  and  cease  in  any  event 
two  years  from  the  date  this  resolution 

See  act  of  August  13,  1912  (37  Stat.,  302-308). 


[1921,  Mar.  1.  Naval  supply  account  fund  established.]  That  deficiencies 
under  appropriations  for  the  naval  establishment  for  the  fiscal  year  1920  and 
prior  years  shall  be  charged  to  a  naval  supply  account  fund,  which  is  hereby 
established  and  to  which  shall  be  transferred  the  unexpended  balances  of  annual 
appropriations  for  the  naval  establishment  for  the  fiscal  years  1919  and  1920, 
after  two  years  from  the  expiration  of  the  fiscal  year  for  which  made,  and,  out 
of  any  funds  in  the  Treasury  not  otherwise  appropriated,  an  amount  equal  to 
the  value  of  all  stores  in  the  naval  supply  account  on  March  31,  1921,  prelimi- 
nary adjustments  on  account  of  stores  to  be  made  upon  the  certificate  of  the 
Secretary  of  the  Navy  that  stores  to  the  value  certified  are  on  hand;  and  from 
and  after  said  date  the  naval  supply  account  fund  shall  be  charged  with  the 
cost  of  all  stores  procured  for  and  credited  with  the  value  of  all  issues  or  sales 
made  from  the  naval  supply  account,  necessary  adjustments  being  made  on 
account  of  outstanding  contracts  or  orders. — (41  Stat.,  1169,  chap.  89.) 

See  act  of  March  4,  1911  (36  Stat.,  1279),  and  note  thereto,  as  to  the  naval  supply  account. 

[1921,  Mar.  1.  Naval  supply  account;  prices  of  material;  losses;  specific 
appropriations.]  The  prices  at  which  material  is  to  be  expended  from  the 
naval-supply-account  shall  be  fixed  by  the  Paymaster  General  of  the  Navy, 
subject  to  the  approval  of  the  Secretary  of  the  Navy,  and  materials  purchased 
during  the  war  shall  be  issued  at  reduced  prices  in  all  cases  appropriate,  such 
differences  in  values  and  losses  to  be  charged  to  the  respective  funds;  and 
hereafter  no  charges  on  this  account  shall  be  made  to  naval  appropriations. — 

(41  Stat,  1170,  chap.  89.) 

See  Act  of  March  4,  1911  (36  Stat.,  1279),  and  note  thereto. 

[1921,  Mar.  3.  Typewriters  and  computing  machines,  issued  for  exchange; 
repairs  in  District  of  Columbia.]  That  typewriters  and  computing  machines 
transferred  to  the  General  Supply  Committee  as  surplus,  where  such  machines 
have  become  unfit  for  fm-ther  use,  may,  in  the  discretion  of  the  Secretary  of 
the  Treasm-y,  be  issued  to  other  Government  departments  and  establishments 
at  exchange  prices  quoted  in  the  current  general  schedule  of  supphes  or  sold 
commercially  provided  the  price  obtained  is  in  excess  of  the  exchange  prices. — 
(41  Stat.,  1265-1266,  chap.  124.) 

Repairs  to  typewriting  machines  (except  bookkeeping  and  billing  ma- 
chines) in  the  Government  service  in  the  District  of  Columbia  may  be  made 
at  cost  by  the  General  Supply  Committee,  payment  therefor  to  be  effected  by 
transfer  and  counter  warrant,  charging  the  proper  appropriation  and  crediting 
the  appropriation  ''General  Supply  Committee,  Transfer  of  Office  IVIaterial, 
Supplies,  and  Equipment."— (41  Stat.,  1266,  chap.  124.) 

See  Acts  of  June  5,1 920,  section  7  (41  Stat.,  947),  and  March  4, 1915,section  5  (38  Stat.,  1161). 

[1921,  Mar.  3.  War  with  Germany  and  Austria  Hungary,  date  of  termina- 
tion for  certain  purposes.]  That  in  the  interpretation  of  any  provision  relating 
to  the  duration  or  date  of  the  termination  of  the  present  war  or  of  the  present 

1557 


Mar.  3,  1921.  PL  .?.  STATUTES  AT  LARGE. 

or  existing  emergency,  meaning  thereby  the  war  between  the  Imperial  German 
Government  and  the  Imperial  and  Royal  Austro-Himgarian  Government  and 
the  Government  and  people  of  the  United  States,  in  any  Acts  of  Congress, 
joint  resolutions,  or  proclamations  of  the  President  containing  provisions 
contingent  upon  the  duration  or  the  date  of  the  termination  of  such  war  or  of 
such  present  or  existing  emergency,  the  date  when  this  resolution  becomes 
effective  shall  be  construed  and  treated  as  the  date  of  the  termination  of  the 
war  or  of  the  present  or  existing  emergency,  notwithstanding  any  provision 
in  any  Act  of  Congress  or  joint  resolution  providing  any  other  mode  of  deter- 
mining the  date  of  such  termination.  And  any  Act  of  Congress,  or  any  provi- 
sion of  any  such  Act,  that  by  its  terms  is  in  force  only  during  the  existence  of  a 
state  of  war,  or  during  such  state  of  war  and  a  limited  period  of  time  thereafter, 
shaU  be  construed  and  administered  as  if  such  war  between  the  Governments 
and  people  aforesaid  terminated  on  the  date  when  this  resolution  becomes 
effective,  any  provision  of  such  law  to  the  contrary  notwithstanding;  excepting, 
however,  from  the  operation  and  effect  of  this  resolution  the  following  Acts 
and  proclamations,  to  wit:  Title  2  of  the  Act  entitled  "The  Food  Control  and 
District  of  Columbia  Rents  Act,"  approved  October  22,  1919  (Forty-first 
Statutes,  page  297),  the  Act  known  as  the  Trading  with  the  Enemy  Act,  ap- 
proved October  6,  1917  (Fortieth  Statutes,  page  411),  and  all  amendments 
thereto,  and  the  First,  Second,  Third,  and  Fourth  Liberty  Bond  Acts,  the 
Supplement  to  the  Second  Liberty  Bond  Act,  and  the  Victory  Liberty  Loan 
Act;  titles  1  and  3  of  the  War  Finance  Corporation  Act  (Fortieth  Statutes, 
page  506)  as  amended  by  the  Act  approved  March  3,  1919  (Fortieth  Statutes, 
page  1313),  and  Public  Resolution  Numbered  55,  Sixty-sixth  Congress,  entitled 
''Joint  resolution  directing  the  War  Finance  Corporation  to  take  certain  action 
for  the  relief  of  the  present  depression  in  the  agricultural  sections  of  the  country, 
and  for  other  purposes,"  passed  January  4,  1921;  also  the  proclamations 
issued  under  the  authority  conferred  by  the  Acts  herein  excepted  from  the 
effect  and  operation  of  this  resolution:  Provided,  however,  That  nothing  herein 
contained  shall  be  construed  as  effective  to  terminate  the  militarv  status  of 
any  person  now  in  desertion  from  the  military  or  naval  service  of  the  LTnited 
States,  nor  to  terminate  the  liability  to  prosecution  and  punishment  under  the 
selective  service  law,  approved  May  18,  1917  (Fortieth  Statutes,  page  76),  of 
any  person  who  failed  to  comply  with  the  provisions  of  said  Act,  or  of  Acts 
amendatory  thereof:  Provided  further.  That  the  Act  entitled  ''An  Act  to 
amend  section  3,  title  1,  of  the  Act  entitled  'An  Act  to  punish  acts  of  inter- 
ference with  foreign  relations,  the  neutrality,  and  the  foreign  commerce  of  the 
United  States,  to  punish  espionage,  and  better  to  enforce  the  criminal  laws  of 
the  United  States,  and  for  other  purposes,'  approved  June  15,  1917  (Fortieth 
Statutes,  page  217),  and  for  other  purposes,"  approved  May  16,  1918  (Fortieth 
Statutes,  page  553),  be,  and  the  same  is  hereby,  repealed,  and  that  said  section 
3  of  said  Act  approved  June  15,  1917,  is  hereby  revived  and  restored  with  the 
same  force  and  effect  as  originally  enacted. 

Nothing  herein  contained  shall  be  held  to  exempt  from  prosecution  or  to 
relieve  from  punishment  any  offense  heretofore  committed  in  violation  of  any 
Act  hereby  repealed  or  which  may  be  committed  while  it  remains  in  force  as 
herein  provided.— (41  Stat.,  1359-1360,  chap.  136,  Pub.  Res.  No.  64.) 

1558 


Pi.  3.  STj\TUTES  at  large.  Mar.  4,  1921. 


terms  to  "time  of  peace."     (32  Op.  Atty.  Gen., 
505.) 

By  said  resolution  Congress  meant  to  declare 
a  condition  of  peace  to  exist  as  to  the  laws  of 
and  governing  the  United  States;  hence  all 
laws  and  regulations  depending  for  their  force 
upon  a  state  of  war  or  emergency  thereby  ceased 
to  be  of  further  force.  (32  Op.  Atty.  Gen.,  505, 
listing  certain  acts  relating  to  the  Navy  which 
were  affected  by  the  above  resolution.) 


Navy  statutes  affected  by  resol'.il  on 
terminating  war-time  legfislation. — l^his 
resolution  affects  statutory  pro\isions  relating 
to  the  Navy  wliich  in  general  terms  apply  to 
any  emergency  or  national  emergency  and 
which  included,  without  specific  reference 
thereto,  the  emergency  incident  to  the  war  with 
Germany.     (32  Op.  Atty.  Gen.,  505.) 

Said  resolution  likewise  affects  statutory 
provisions  relating  to  the  NaAy  which  relate  in 

[1921,  Mar.  4.  Transfer  of  lands,  etc.,  to  the  Public  Health  Service.]  In 
carrying  out  the  purposes  herein  authorized  the  President  is  authorized  and 
empowered,  in  his  discretion,  to  assign  for  use  of  the  Public  Health  Service, 
under  the  jurisdiction  of  the  Secretary  of  the  Treasury,  such  lands  or  buildings 
now  owned  or  leased  by  the  United  States,  not  including  property  under  the 
jurisdiction  of  the  National  Home  for  Disabled  Volunteer  Soldiers,  which,  in 
his  judgment,  can  be  used  more  efficiently  for  the  care  of  patients  of  the  Bureau 
of  War  Risk  Insurance     *     *     *.— (41  Stat.,  1365,  chap.  156.) 

See  act  of  March  3,  1919,  section  3  (40  Stat.,  1303.) 

[1921,  Mar.  4.  Arlington  Memorial  Amphitheater,  memorials  and  entomb- 
ments in.]  That  a  commission  is  hereby  created,  to  be  composed  of  tlie  Secre- 
tary of  War  and  the  Secretary  of  the  Navy,  which  shall  submit  annually  to  the 
President,  who  shall  transmit  the  same  to  Congress  by  the  first  IVIonday  in 
December,  recommendations  as  to  what,  if  any,  inscriptions,  tablets,  busts,  or 
other  memorials  shall  be  erected,  and  what,  if  any,  bodies  of  deceased  members 
of  the  Army,  Navy,  and  Marine  Corps  shall  be  entombed  during  the  next  ensu- 
ing year  within  the  Arlington  Memorial  Amphitheater,  in  the  .Arlington  National 
Cemetery,  Virginia:  Provided,  That  no  memorial  shall  be  placed  and  no  body 
shall  be  interred  in  the  grounds  about  the  Arlington  Memorial  Amphitheater 
within  a  distance  of  two  hundred  and  fifty  feet  from  the  said  memorial. 

Sec.  2.  That  the  Secretary  of  War  shall  be  the  chairman  of  the  said  com- 
mission and  the  depot  quartermaster  of  the  Army  in  Washington  shall  be  its 
executive  and  disbursing  officer. 

Sec.  3.  That  no  inscription,  tablet,  bust,  or  other  memorial  shall  be  erected 
nor  shall  any  body  be  entombed  within  the  Arlington  Memorial  Amphitheater 
unless  specifically  authorized  in  each  case  by  Act  of  the  Congress. 

Sec.  4.  That  no  inscription,  tablet,  bust,  or  other  memorial  as  herein  pro- 
vided for  shall  be  erected  to  commemorate  any  person  who  shall  not  have 
rendered  conspicuously  distinguished  service  in  the  United  States  Army,  Navy, 
or  Marine  Corps,  nor  shall  the  body  of  any  such  person  be  entombed  in  the 
Arlington  Memorial  Amphitheater;  nor  shall  any  such  memorial  be  erected  or 
any  body  be  entombed  therein  within  ten  years  after  the  date  of  the  death  of 
the  person  so  to  be  commemorated,  except  as  heretofore  or  hereafter  authorized 
by  Congress. 

Sec.  5.  That  the  character,  design,  and  location  of  any  such  inscriptions, 
tablets,  busts,  or  other  memorials  when  authorized  as  herein  provided  shall  be 
subject  to  the  approval  of  the  commission  herein  created,  which  shall  in  each 
case  obtain  the  advice  of  the  Commission  of  Fine  Arts. — (41  Stat.,  1440,  chap. 
169.) 


See    section    4878,    Revised    Statutes,    as    to 


of    March    3,    1909   (35    Stat.,   773),    as    to 


burials  in  national  cemeteries;  and  see  act  memorials  in  Naval  Academy  chapel. 

1559 


Mar.  4,  1921. 


PL  S.  STATUTES  4  T  LARGE. 


The  Conunission  of  Fine  Arts  was  created 
by  act  of  May  17,  11)10  (3G  Stat.,  371),  which 
read  as  follows: 

•'That  a  jicnnancnt  Conimiasion  of  Fine  Arts 
is  hereby  created  to  be  composed  of  seven  well- 
qualified  judges  of  the  fine  arts,  who  shall  be 
aji])ointed  by  the  President,  and  shall  serve  for 
a  i)eriod  of  four  years  each,  and  until  their 
successors  are  appointed  and  qualified.  The 
President  shall  have  authority  to  lill  all  va- 
cancies. It  shall  be  the  duty  of  such  com- 
mission to  ad\i8c  upon  the  location  of  statues, 
fountains,  and  monuments  in  the  ])ublic 
squares,  streets,  and  parks  of  the  District  of 
Columbia,  and  upon  the  selection  of  models 
for  statues,  fountains,  and  monuments  erected 
under  the  authority  of  the  United  States  and 
upon  the  selection  of  artists  for  the  execution 
of  the  same.  It  shall  be  the  duty  of  the  of- 
ficers charged  by  law  to  determine  such  ques- 
tions in  each  case  to  call  for  such  advice. 
The  foregoing  provisions  of  this  act  shall  not 
apply  to  the  Capitol  building  of  the  United 
States  and  the  building  of  the  Library  of  Con- 
gress. The  commission  shall  also  advise  gen- 
erally upon  questions  of  art  when  required  to 
do  so  by  the  President,  or  by  any  committee  of 


eitl  ii-  House  of  Congress.  Said  commission 
shal*  have  a  secretary  and  such  other  assistance 
as  the  commission  may  authorize,  and  the 
members  of  the  commission  shall  each  be  paid 
actual  expenses  in  going  to  and  returning  from 
Washington  to  attend  the  meetings  of  said  com- 
mission and  while  attending  the  same. 

"Sec.  2.  That  to  meet  the  expenses  made 
necessary  by  this  Act  an  expenditure  of  not 
exceeding  ten  thousand  dollars  a  year  is  hereby 
authorized." 

By  Executive  Order  of  July  28,  1921  (No. 
3524),  it  was  provided  as  follows: 

"It  is  hereby  ordered  that  essential  matters 
relating  to  the  design  of  medals,  insignia  and 
coins,  produced  by  the  executive  departments, 
also  the  designs  of  statues,  fountains  and  monu- 
ments, and  all  important  plans  for  parks  and 
all  public  buildings,  constructed  by  executive 
departments  or  the  District  of  Columbia,  which 
in  any  essential  way  affect  the  appearance  of 
the  city  of  Washington,  or  the  District  of 
Columbia,  shall  be  submitted  to  the  Com- 
mission of  Fine  Arts  for  advice  as  to  the  merits 
of  such  designs  before  the  executive  officer 
having  charge  of  the  same  shall  approve  there- 
of." 


1500 


INDEX. 


[See  also  Analytical  Index  to  the  Constitution,  pp.  143-181., 


ABANDONED: 

Applications  for  patents,  1105,  1494, 1501. 
Office;  acquiescence  in  illegal  dismissal,  826,  989. 
ABBREVIATION: 

Signature  of  public  officer,  351. 
ABETTING: 

See  Accessories;  Articles  for  the  Government  of  the  Navy; 

Crimes. 
Combination  against  commanding  officer,  Navy,  984. 
Making  or  signing  of  a  false  muster,  985. 
ABSENCE: 

See  Absence  without  leave;  Leave  of  absence. 
Accused  not  present  at  trial,  126,  1030. 
Candidate  for  promotion;  examining  board's  proceed- 
ings illegal,  723,  728. 
Chiefsofbm«aus,213,  214,  466,  1222,   1224,  1261,  1280, 

1284,  1418. 
Disbursing  clerks;  substitute,  1315, 1316. 
From  command;  power  of  officer  to  convene  courts- 
martial  during,  1015. 
command  without  leave,  988. 
ship;  pay,  882,  8.S3. 

United  States;  statute  of  limitations,  1060. 
Heads  of  departments,  194,  212-217,  422. 
Judge  Advocate  General  of  the  Navy,  1418. 
Members  of  general  court-martial,  1029-1033. 
Misconduct  causing;  officers  and  enhsted  men,  Navy 

and  Marine  Corps,  825,  1436. 
Naval  officers  imprisoned  by  civil  authorities;  dropped 

from  rolls,  1503. 
Pay  of  officers,  Marine  Corps,  during,  941. 

Navy,  during,  823-825. 
Secretary  of  the  Navy,  212-217;  1401. 
Statute  of  limitations;  effect  on,  1057,  1058,  1060, 1062. 
Temporary;  quarters  and  commutation,  701. 
Vacancy  not  created  by,  473. 

Witnesses;  additional  charges  tried  on  return  of,  1025. 
admission  as  to  what  they   would  testify,   132, 

1055. 
procured  by  accused,  132. 
ABSENCE  WITHOUT  LEAl^E: 

Forfeiture  of  pay;  any  person  in  service  of  United 
States, 1297. 
enlisted  men,  869-871. 
From  station  or  duty;  punishment,  985. 
Leaving  station  before  being  regularly  relieved,  pun- 
ishment. Navy,  979. 
Member  of  court-martial;  penalty  dismissal,  1031. 
Officer;  absenting   himself  from   command    without 
leave,  988. 
dropped  from  rolls  for,  1011,  1012,  1503. 
whose  resignation  has  not  been  accepted,  989 
Pay,  naval  officer,  825. 

Naval  Reser^-e  Force,  814. 
Period  of  arrest  by  civil  authorities,  589. 
not  credited  as  a  period  of  service,  588. 
ABSTRACT  OF  TITLE: 
Exjjcnse  of  securing,  294. 


ACADEMIC  BOARD: 

Naval  Academy,  751,  753,  754. 
ACADEMIES: 

See  Military  Academy;  Naval  Academy. 
Details  of  naval  officers  to  educational  institutions,  435. 
ACCEPTANCE: 

Appointment,  96,  100,  207. 

implied  resignation  of  office  already  held,    .529. 
naval  officer;  date  pay  commences,  829. 
in  diplomatic  or  consular  service,  579. 
Bonds;  date  effective,  211. 

Foreign  medals,  decorations,  and  presents,  75,  76, 1516, 
1517. 
offices  by  naval  officers,  75, 1416, 1502, 1556. 
Pardon,  122. 

Presents  from  official  inferiors,  1073. 
Promotion,  97,  652,  654. 
Resignation,  583,  747,  989. 

Vessels  under  construction;  ownership  prior  to,  773. 
ACCESSORIES: 

Pimishment  of,  1354. 
ACCOUNTING  OFFICERS: 

See  Accounts;  Claims;  Mistake  of  fact;  Mistake  of  law . 
-Accounts  of  navy  disbursing  officers  rendered  direct 

to,  1097. 
Administrative  departments  delaying  transmission  of 
accoimts  to,  1226. 
examination  omitted;  procedure  in  auditing,  1226. 
Advance  decisions,  1225. 
Allowance  to  owner  of  lost  check,  274. 

to  retired  enlisted  men  who  resigned  to  reenlist  in 
higher  grade,  1514. 
Appointment  of  inspector,  weigher,  and  measurer  of 
fuel;  notification  to,  1110. 
without  consent  of  Senate;  notification  to,  1072. 
Approval  of  accounts  by  heads  of  departments,  242- 

244,  277. 
Attorney  General's  jurisdiction  with  relation  to,  311- 

320. 
Attorneys'  fees  not  to  be  deducted  in  naval  cases,  1272. 
Auditor  for  the  Navy  Department;  duties  of,  1224. 
Auditors,  general  pro\'isions  relating  to  265-274. 
Certificates  of  balances;  copies  sent  Secretary  of  the 

Navy,  1224. 
Checkages  of  pay;  jurisdiction,  233. 
Claims  allowed;  report  to  Congress,  1193. 
Commissions  or  inquiries,  accounts  not  to  be  allowed 

without  special  appropriation,  1105. 
Comptroller,  duties  of,  263,  264. 
Conclusive  effect  of  action  by,  246-248. 
Congress  not  bound  by  action  of,  247. 
Contracts  filed  in  offices  of,  1118. 

for  fuel;  credit  not  allowed   without  certificate, 

1110, 1111. 
settlements  by  departments  subject  to  revision, 
nil. 
Court  of  Claims'  jurisdiction,  where  account  not  acted 
on  by,  1362. 


1561 


INDEX. 


ACCOUNTING  OFFICERS— Continued. 
Courts;  jurisdiction  with  relation  to,  23.5,  247. 
Deccsasod  personnel.  Navy  and  Marine  Corps;  settle- 
ment of  accounts,  1305,  1306. 
Decisions  of  auditors  re\-ised  by  Comptroller,  1225. 
of  Comptroller;  applications  for,  1225. 

policy  of  Navy  Department  as  to  requesting, 
239. 
Decisions  relating  to  jwwers  and  jurisdiction  of,  etc., 

229-257. 
Deposit  of  public  money  required  by;  failure  of  dis- 
bursing officer  to  make,  1330. 
Disbursements  by  Treasurer  of  the  United  States,  275. 
Disbursing  officers  may  obtain  advance  decision  from, 

1225. 
Effect  of  action;  binding  on  executive  branch  of  gov- 
ernment, 225. 
Enlisted  men  on  vessels  sunk  or  destroyed;  payments 

to,  264. 
Equitable  claims,  jurisdiction  235. 
Equity  and  justice  in  settling  accounts,  enlisted  men 

on  lost  vessels,  268. 
Evidence  required  by,  244. 
Form  of  keeping  and  rendering  accounts  and  making 

returns,  259, 1224. 
General  account  of  ad\-ances,  adjustment  of  liabilities 

by,  1184. 
General  provisions  relating  to,  263-274,  1224-1227. 
Heads  of  departments;  jurisdiction  with  relation  to, 
236-244. 
may  obtain  advance  decision  from,  1225. 
Information;  books,  papers,  etc.,  open  to  inspection 
of,  229. 
refused  by  Navy  Department,  238,  239. 
Jurisdiction:  can  not  require  pajTnent  to  be  made,  240. 
cause  of  naval  officer's  incapacity,  605. 
checkages  of  pay,  233,  234. 

claims  for  lost  or  damaged  property,  naval  per- 
sonnel, 1492-1494. 
in  general,  231,  232. 
limitations  upon,  232. 
Navy  regulation  held  invalid  by,  239,  241,  273, 

838,839. 
payments  of  death  gratuity  in  Navy,  233. 
promotion  of  civil  employee,  242. 
property  accounts,  234,  1223. 
Secretary  of  the  Na^T  with  relation  to,  198,  236- 
240;  266,  268,  272,  273,  566,  605,  828,  829,  838,  839, 
903, 1315, 1514,  1527,  1528. 
ships'  stores  profits,  1359. 
Mandamus  proceedings  against,  233,  234,  256,  257. 
Na\^  accounts;  auditing  of,  266. 

disbursements,    by    order    of    superior    officer, 

allowed,  266. 
regulation  binding  on,  198,  786,  787. 
Notified  of  all  appointments  made  by  President  with- 
out consent  of  Senate,  1072. 
Oaths  administered  to  witnesses  by  auditors,  274. 
Orders  of  Secretary  of  the  Navy;  officer  disobeying 

can  not  be  relieved  of  responsibility,  239,  240. 
Pajrment  for  effects  lost  on  sunk  or  captured  vessel,  269. 
Pay,  miscellaneous,  credited  with  interest,  premiums, 

and  exchange,  1222. 
Property  accounts;  jurisdiction,  234,  1223. 
Recess  appointments;  notification  to,  1072. 
Regulations,  Havy,  binding  on,  241,  273. 

decision  as  to  vaUdity  of,  not  binding,  239. 
Reopening  of  accounts;  decisions  relating  to,  248-256. 
Requisitions  for  advances  of  money,  1104,  1225,  1226. 
Report  to  Congress  of  delinquent  disbursing  officers, 
1226. 


ACCOUNTING  OFFICERS— Continued. 

Revision  of  auditor's  settlements  by  Comptroller,  1224, 

1225. 
Secretary  of  the  Navy- 
Determination  binding  on;  responsibility  for  loss 

or  deficiency,  1527,  1528. 
Jurisdiction  with  relation  to,  198,  236-240,  266,  268, 
272,  273,  566,  605,  828,  829,  838,  839,  903,  1315, 
1514,  1527,  152H. 

To  determine  when  public  quarters  not  available, 

1514. 
To  direct,  in  fLxing  date  vessels  were  lost,  268. 
settlements  by,  266. 
Secretary  of  War;  jurisdiction  with  relation  to,  240-242. 
Set  off;  jurisdiction  as  to,  244-246. 
Settlements;  effect  of  accepting  payment  under,  1225. 
of  auditors  conclusive  unless  re\Tsed  by  Comj)- 
troller,  1224. 
Ships'  stores  profits  to  be  accounted  for  to  Bureau  of 

SuppUes  and  Accounts,  1359. 
Status  of,  230. 
Suit  against  delinquent  officer  and  sureties,  1072,  1097. 

on  bonds;  statute  of  limitations,  1199. 
Suspension  of  items  in  accounts  for  explanation  or 

e\'idence,  1225. 
Temporary  appointments,  notified  of,  1072. 
UnUquidated  claims,  jurisdiction,  234. 
Vessels  lost  or  captured;  credits  to  paymaster,  266. 
Warrants  in  settlement  of  accounts,  276. 
ACCOUNTS: 

See  Accounting  officers;    Claims;    Mistake  of  fact;    Mis- 
take of  law;  Naval  supply  account. 
Accepting  payment  under  settlements  by  accounting 

officers:  effect  of,  1225. 
Administrative — 

Departments  delaying  transmission  to  accounting 

officers,  1226. 
Examination  omitted:  auditing  of,  1226. 
regulations  governing,  1227. 
Appropriation  for  obtaining  information  from  abroad 

and  at  home,  1417. 
Approval  by  head  of  department;  effect  of,  242,  243. 

by  Secretary  of  the  Navy,  272, 1179, 1189. 
Armor  plants;  cost  of  product;  itemized,  to  be  kept, 

1419. 
Balances- 
Certified  by  the  auditors  conclusive,  unless  re- 
vised by  Comptroller,  1224, 1225. 
copy  of  certificate  sent  to  Secretary  of  the 
Navy,  1224. 
Contract  purchases:  consular  certificate  required  con- 
cerning foreign  supplies,  1114. 
Contractors  and  agents  to  render  for  settlement  to 

proper  department,  1111. 
Deceased  naval  personnel;  settlement  of,  1305,  1306. 
Deficiency;  Secretary  of  the  Na\'y  may  relieve  officers 
from  responsibility,  1527,  1528. 
suit  on  bond;  statute  of  limitations,  1199. 
Delinquency  in   rendering;  money   requisitions   dis- 
approved because  of,  1226. 
of  officers  reported  to  Congress,  1226. 
Disbursements  by  order  of  superior  officer  in  Navy,  266. 
Disbursing  officers  failing  to  render,  as  required,  1226, 
1330. 
unchanged  for  three  years,  279. 
Enlisted  men;  final  settlement  of;  duty  of  command- 
ing officer,  995. 
missing  vessels,  268. 

must  accompany  when  sent  from  ship  or  trans- 
ferred to  other  vessels,  995. 


1562 


INDEX. 


ACCOUNTS— Continued. 

Enlisted  men  sent  from  ship;  commanding  offlcer  and 

paymaster  to  sign,  995. 
Kvidence  required  by  accounting  officers,  244. 
Examination  of,  by  administrative  bureau,  1097. 
Falsification  of,  punishment,  1170,  1368. 
Fiscal  year,  257,  259. 
Form  of,  259,  1097,  1098, 1224. 

cost  of  work  under  naval  appropriations,  1365, 1366. 
Navy  Department  expenditures,  1 102, 1 103, 
General  account  of  advances  authorized  for  Navy,  1183. 
General  provisions  relating  to,  1224-1227. 
Inspection  of,  by  general  inspector  of  Supply  Corps, 

1304. 
Itemized  required,  231,  244. 
London  fiscal  agents;  receipts  for  interest,  1222. 
Miscellaneous  receipts,  1095. 

Naval  Supply  Account;  to  govern  purchase  and  issue  of 
stores,  etc.,  1366,  1367. 
value  of  stores  in,  transferred  to   naval   supply 
account  fimd,  1557. 
Navy- 
Auditing  of,  265,  1224. 
Department;  custody  of  chiefs  of  bureaus,  361. 

expenditures;  form  of,  1102, 1103. 
Disbursing  officers,  rendered  direct  to  accounting 
officers,  1097. 
Oaths  administered  to  witnesses  by  auditors,  274. 

who  may  administer  to,  1386. 
Officers  sent  from  ship  to  be  furnished  with,  995. 
Overhead  charges  distributed  between  naval  appro- 
priations, 1398. 
Payment  by  Treasurer  of  United  States,  275. 
Premium  on  sale  of  public  securities,  1100. 
Property;  audited  by  Paymaster  General  of  Navy; 
certificate  to  accounting  officers,  1223. 
Biu'eau  of  Supplies  and  Accounts  to  keep,  1203. 
charging  lost  property  to  responsible  officer,  788. 
jurisdiction  of  accounting  officers,  234. 
storekeeper  at  Naval  Academy  to  render,  1304. 
Quarterly  rendition  of,  1215. 
Receipts  from  post  laundries.  Marine  Corps,  1531. 
Reopening  of;  decisions  relating  to,  24&-256. 
"Settle"  defined,  233. 

Settlement  of  claims  and  demands,  229-257. 
Siiips'  stores  profits;  audited  by  Bureau  of  Supplies 

and  Accounts,  1359. 
Suspension  of  items  by  accounting  officers  for  evidence 

or  explanation,  1225. 
Time  for  rendering,  1097, 1215, 1225,  1226. 
Travel  claims;  approval  by  Secretary  of  the  Navy, 

237,  238. 
Traveling  expense;  Secretary  of  the  Navy  to  determine 

distances,  etc.,  1315. 
Vessels  lost  or  captured,  266. 

sunk  or  destroyed;  payments  to  enlisted    men, 
264. 
ACCUSED: 

See  Courts-martial;  Jeopardy;  Prisoners;  Sentence. 
Additional  charges  against;  restriction  on  trying,  1025. 
Arraignment;  waiver  of,  126. 
Arrest,  117, 1025,  1026. 

entitled  to  charges  at  time  of,  131,  1025. 
BiU  of  rights  for  protection  of,  116. 
Challenge,  right  of,  before  court-martial,  131. 
Change  of  status;  does  not  divest  jurisdiction,  403. 
Charges  against;  right  to  be  informed  of,  129, 131. 

to  be  furnished  at  time  of  arrest,  131, 1025. 
Compelling  exhibition  of  his  person,  not  unlawful,  123. 
Confession  by,  123. 


ACCUSED— Continued. 

Consent  does  not  confer  jurisdiction  on  court,  125,  977, 
1033. 

Counsel,  entitled  to  assistance  of,  129, 133. 
public  officers  not  to  accept  fees,  1333. 

Defects  in  charges  and  specifications  waived  by,  1045. 

Defense;  allowed  reasonable  time  to  make,  1025. 

Description  of,  in  charges,  1028. 

Due  process  of  law,  protection  of,  123. 

Evidence  received  in  absence  of,  1030. 

Health;  summary  court-martial  punishment  depend- 
ent upon,  1009. 

Impartial  trial,  right  to,  129,  131. 

Insanity  as  defense,  1030,  1031. 

Judge  Advocate  acting  as  counsel  for,  133. 
must  furnish  opinions  to,  133. 

New  trial  requested  by,  121. 

Offlcer;  commutation  of  quarters,  700. 
confined  to  certain  limits,  1029. 

Presence  of,  at  trial;  proceedings  in  absence,  68, 126-128. 

Public  trial,  right  to,  129,  130, 1030. 

Retired  officer;  mileage  for  travel  to  court-martial  for 
trial,  658. 

Right  to  be  confronted  with  witnesses  in  court-martial 
cases,  68. 

Self-crtmination,  protection,  121,  403. 

Speedy  trial,  right  of,  129,  130. 

Trial  after  expiration  of  enlistment,  1057, 1061. 

Waiver  of  rights  and  privileges,  121,  132,  1026,  1045, 
1057,  1058,  1062. 

Witnesses — 

Absence  procured  by  accused,  132. 
Right  to  confront ,  129,  132. 

process  for  obtaining,  129,  132,  133. 
Unable  to  hear,  126. 
ACKNOWLEDGMENTS : 

Bonds,  483. 

False,  by  officer  authorized  to  administer  oaths,  etc., 
1323. 

Officers  authorized  to  take,  1072, 1073. 

Powers  of  attorney;  claims  against  United  States ,  1093. 
ACQUIESCENCE: 

Illegal  dismissal;  effect  of,  826. 
ACQUITTAL: 

See  Jeopardy. 

Disapproval  of  court-martial  sentence  equivalent  to, 
988. 

Effect  of,  988. 

Plea  of  former  acquittal,  119. 
ACTING  OFFICERS: 

Assistant  surgeons,  527-530,  675,  802, 1184,  1261. 

Chaplains,  802,  1396. 

Chiefs  of  bureaus,  213,  214,  466,  1222,  1224,  1261,  1280, 
1284,  1418. 

Commanding  officers,  punishments  inflicted  by,  1005. 

Disbursing  clerks,  211,  1315,  1316. 

Ensigns,  799, 1435,  1436,  1438,  1439. 

Governors,  Guam  and  Samoa:  certificates  as  to  ac- 
knowledgments, 1291,  1292. 

Heads  of  departments,  194,  212-217,  422. 

Judge  Advocate  General,  Navy,  1418. 

Machinists,  1269. 

Master  at  arms;  refusing  to  receive  prisoners  or  suffer- 
ing their  escape,  985. 

Midshipmen,  739. 

Pay  clerks,  1406,  1407. 

PajTnasters,  472,  473,  839. 

Rear  admirals,  577,  665. 

Second  lieutenants,  1438, 1439. 

Secretary  of  the  Navy,  212-217;  1401. 


54641°— 22- 


-99 


1563 


INDEX. 


ACTING  OFFICERS— Continued. 

Status  of,  525. 

Warrant  officers,  525,  794,  803. 
.\CTIVE  OUTY: 

See  Naval  Jieserve  Force;  Pay  of  Naval  EstablMment; 

Retired  eiilisUd  men;  Retired  officers. 
Naval  officer  interned  by  neutral  nation  is  in  status 

of,  892. 
Naval  Reserve  Force;  confirmation  and  maiutenanee 
ofefficiency,  1444, 1445, 1449, 1452, 1453, 1454, 1509. 
during  war  or  emergency,  1443,  1447,  1452. 
enlisted   ratings,  to  supply  deficiencies  in  Navy, 

1548,  1549. 
maintenance  of  efficiency,  Naval  Reserve,  1509. 
officers,  in  aviation  and  auxiliary  ser\'lce,  1549. 
pay;  longevity;  computation  ofservice,  1511. 
released  from,  by  Secretary  of  the  Navy,  1510. 
released  from;  court-martial  jurisdiction  over,  976. 
restrictions  on  character  of,  on  shore,  1528. 
subject  to  laws  and  regulations  of  the  Navy;  en- 
rolled members,  1511. 
time  of  peace,  1510. 
Retired- 
Enlisted  men,  1405,  1406,  1451,  1514,  1546,  1547. 
Officers  and  enlisted  men;  death   gratuity   law 

applicable  to,  1546,  1547. 
Officers;  as  members  of  court-martial  1018. 
authorized,  656,  659,  660,    1380,   1512. 
Marine  Corps,  966-968. 

pay  and  allowances,  913-915,  1380,  1381,  1437. 
prohibited  except  in  time  of  war,  656,  659,  660. 
promotion;  pay,  1512,  1513. 
Warrant  or  commissioned  warrant   officers;  pay, 
etc.,  1503,  1504. 
ACTI\T;  LIST: 
Retired  officers — 

Not  eligible  for  office  limited  toactivelist,  643, 658. 
On  active  duty;  not  officers  of,  657. 

practically  restored  to,  658. 
Restoration  to,  660,  661. 

Withdrawn  from  line  of  promotion  on,  654,  655. 
ACTUAL  EXPENSES: 
See  Travel. 

Travel  under  orders,  naval  officers,  842,  843. 
Witnesses  in  Government  ser\'ice  allowed,  413. 
ADDING  MACHINES: 

Exchange  of,  in  part  payment  for  new  ones,  1409,  1410. 
ADDITIONAL  CHARGES: 

Restriction  on  preferring  against  accused  before  court- 
martial,  1025. 
ADDITIONAL  NUMBER  OFFICERS: 

Advanced  for  conduct  in  battle  or  heroism,  736,  1289- 

war  service,  1275,  1276. 
Engineer  officers,  1366,  1432. 
Excluded  from  computations  to  determine  number  in 

any  grade  or  rank,  line  or  staff,  1429. 
Grade  of  rear  admiral,  736. 
Marine  Corps,  1289,  1458. 

promoted  to  brigadier  general,  held  to  fill  a  va 

cancy,  1459. 
status  of  major  general  commandant,  929,  1392. 
Navy,  451,  452. 

Naval  Flj-ing  Corps;  officers  of,  1437. 
Number  of  vacancies  furnished  selection  boards  should 

not  include,  1431. 
Promotion  of,  1275,  1276,  1429,  1430,  1432. 
Special  act  authorizing  appointment  of,  532. 
Staff  officers  permanently  commissioned  with  rank  of 

rear  admiral,  1429. 
Vacancies  caused  by,  not  filled,  1275,  1276. 


ADEQUATE  PUNISHMENT: 

Courts-martial  required  to  adjudge,  1034. 
.\D  INTERIM: 

See  Recess  appointments. 
ADJUTANT  AND  INSPECTOR: 

Counted  as  colonel  in  computations,  1460. 
Oaths  administered  by,  1240. 
Rank,  pay,  and  allowances,  929,  1460. 
ADMINISTRATION : 

Changes  in;  decisions  binding  on  successors,  348,  349. 
ADMIRAL: 

Aid  to  does  not  rank  with  aid  to  general  in  the  Army, 

663. 
Allowances  same  as  general,  1512. 
Chief  of  Naval  Operations  to  have  rank  and  title  of, 

1418. 
Clerks  to,  at  sea;  civilians  not  allowed,  1182. 
Fleet  officers  to  have  rank  of,  1481. 
Grade  and  rank  of,  448. 
Historical  note  relating  to  Admiral  of  the  Navy,  447, 

448. 
Pay,  791,  797,  1301,  1481. 
Ranks  with  general,  663. 
Secretary  to,  455,  527,  794,  805,  1182. 
ADMIRALTY: 

Proceedings  in  foreign   coimtry;   counsel   for   naval 
officer,  224. 
ADMIRALTY  AND  MARITIME  JURISDICTION: 
Crimes  committed  within,  1348-1351. 
Judicial  power  with  relation  to,  105. 
ADMISSIONS: 

As  to  what  absent  witness  would  testify,  132,  1055. 
ADULTERY: 

Definition  and  punishment,  1354. 
•ADVANCEMENT: 
See  Promotion. 

Commission  not  necessary  for  advancement  in  rank, 
102. 
to  be  issued  retired  officers  advanced  in  rank,  1368. 
Consent  of  Senate  required  for  advancement  in  rank, 

734. 
Dental  officers,  considered  to  have  gained  length  of 

service,  1421. 
Effect  of;  precedence,  691. 
Marine  officers;  conduct  in  battle  or  extraordinary 

heroism,  933. 
Naval  officers;  conduct  in  battle  or  extraordinary  hero- 
ism, 453,  454,  734-736,  1275,  1276. 
Officers,  Navy  and  Marine  Corps;  to  be  additional 

numbers,  1289. 
Precedence  of  staff  officers  who  have  gained  numbers, 

1429. 
Rank  of  staff  officers;  examination,  1481.  1482. 
above  lieutenant  commander,  1513. 
up  to  lieutenant  commander,  1426. 
Retii'ed  officers;  commissions  issued  to,  1368. 
jurisdiction  of  accoimting  officers,  238. 
when  effective,  638-640. 
ADVANCES: 

General  account  of  advances  authorized  for  Navy,  1183. 
Mileage  books,  commutation  tickets,  etc.,  paid  for  in 

advance  of  travel,  1282. 
Partial  payments  to  contractors  as  work  progresses, 

1369. 
Payment  for  newspapers  and  periodicals,  1401. 
Pay  of  naval  establishment;  persons  on  distant  sta- 
tions, 838,  1472. 
Public  money,  restricted,  1099,  1100. 
Subscriptions  to  periodicals,  1408,  1409. 
Witness  fees  and  mileage,  naval  courts,  1022,  1310. 


1564 


INDEX. 


ADVERTISING: 

Agency  may  be  employed  in  advertising  for  recruits, 

1382,  1515. 
Appropriations  not  available  for  influencing  legisla- 
tion, 1527. 
Bids  for  steam  boilers  secured  without,  1182, 1183. 
Bunting  may  be  purchased  in  open  market,  1115. 
Contracts;  copies  of,  to  be  filed  in  returns  office.  Interior 
Department,  1118, 1119. 
foreign  supplies,  1114. 
gun  steel  and  armor.  Navy,  1223. 
naval  supplies  excepted,  1113, 1114. 
newspapers  in  District  of  Columbia,  1123. 
requirements  relating  to,  1109, 1111. 
Envelopes  for  Government  not  to  contain,  1239,  1240, 

1291. 
Estimates  and  appropriations  for.  Navy,  1103. 
Newspapers;  District  of  Columbia,  1123,  1187. 
rates  paid  for,  1184. 
sale  of  naval  vessels,  1192. 
written  authority  required  for,  1124. 
Persons,  firms,  or  corporations  practising  before  depart- 
ments, 1411. 
Rates  paid  for,  1184. 

District  of  Columbia,  1187. 
Recruits;  employment  of  advertising  agencies,   1382, 

1515. 
Sale  of— 

condemned  naval  supplies,  1204. 
naval  material,  1190. 

vessels,  1192. 
useless  papers;  executive  departments,  1202,  1203. 
naval  vessels,  1381. 
navy  yards  and  stations,  1401. 
Tobacco  for  Navy  purchased  after,  1250. 
AD^^CE: 

Legal;  Attorney  General  to  provide  for  Navy  Depart- 
ment, 321. 
AD^^SORY  BOARD: 

To  assist  appointing  power,  95. 
AERONAUTICS: 

See  Aviation;    Flying  Corps;   Pay  of  Naval  Establish- 
ment. 
Advisory  committee  for,  1402. 
AFFIDAVITS: 

See  Acknowledgments;  Oaths. 
Contract  returns  for  flUng  in  returns  office,  1119. 
Homestead  laws;  before  whom  executed,  1083. 
Not  admissible  in  proceedings  before  court  of  inquiry, 
1056. 
AFFIRMATION: 

Satisfies  requirement  as  to  oath,  185. 
AGE: 

Appointments;  above  retiring  age,  592. 
acting  ensigns,  1435. 
assistant  paymasters,  470,  1407. 

surgeons,  462,  463,  1427. 
candidates  for;  decisions  relating  to,  463,  464. 
chaplains,  502. 
dental  corps,  1422. 
ensigns,  from  warrant  officers,  1277. 
machinists,  512, 1268, 1269. 
Marine  Corps,  1270, 1461. 
midshipmen,  750,  751, 1472,  1473,  1507. 
warrant  officers  and  mates,  512. 
Enlistments,  Navy,  540,  551, 1402,  1403. 
Naval  Reserve  Force;  disenroUment  at  64  years,  1510. 

enrollment  in  Naval  Reserv'c,  1.509. 
Promotion  by  selection,  1434. 

temporarily  suspended  in  certain  cases,  1551. 


AGE— Continued. 
Retirement — 

chiefs  of  bureaus,  672,  673. 
civil  employees,  1536-1543. 
Marine  Corps,  964. 
naval  officers,  64  years,  589,  1435. 
iaeUgible  for  selection,  1434,  1551. 

staff  officers,  rank,  685. 
Selection  for  promotion;  requirement  not  appUcable 

to  staff  officers,  1513. 
Transfer  to  permanent  grades  from   temporary   or 
reserve  grades,  1551. 
.4^GENTS: 

Former  Government  employees  not  to  act  as,  against 

United  States,  224. 
London  fiscal;  account  of  Navy   Department   with, 
1222. 
AGGRAVATING  CIRCUMSTANCES: 

Officer  sued  for  illegal  act,  56. 
AGREEMENTS: 

Illegal;  to  defraud  United  States,  990. 
AID: 

Acting  rear  admiral  not  entitled  to,  577. 

Admiral's  aid  does  not  rank  with  aid  to  general,  663. 

CivUian  experts;  restrictions   on   emplojTnent   from 

naval  appropriations,  1281. 
Constructipn  officer  can  not  be  detailed  as,  508,  779. 
Line  officer  detailed  as,  669. 
Pay,  815-817,  941,  1303. 
Rank  and  precedence  of,  669. 
Regulations  governing;  vaUdity,  785. 
Secretary  of  the  Navy's,  can  not  super\-ise  chiefs  of 

bureaus,  360. 
Staff  officers  not  required  to  communicate  with  com- 
manding officer  through,  670. 
Status  and  pay,  670. 
AIRCRAFT: 

See  Aviation;  Flying   Corps;  Pay  of  Xaval  Establish- 
ment. 
ALASKA: 

Aliens  fishing  in  waters  of:  seizures  and  arrests  by 

naval  officers,  1289. 
Census  taken  of,  1525. 

Civil  employees:  sale  of  stores  to,  1313, 1314. 
Coal:  use  of  lands  for  Navy,  etc.,  1400. 
mining  in,  for  Navy,  1547,  1548. 
preference  right    to   purchase   for    Army    and 
Navy,  1307. 
Naval  officers  detailed  to,  1393. 
Railroads:  transportationof  coal:  employment  of  naval 

officers,  etc.,  1393,  1394. 
Shore  duty  in:  additional  pay  allowed,  1275. 
ALCOHOLIC  LIQUORS: 

.\bsence  from  duty  caused  by;  naval  personnel,  825, 

1436. 
Distilled  spirits  on  naval  vessels;  restrictions.  089. 
Midshipmen  to  be  instructed  as  to  nature  and  effects 

of,  1194, 119.5. 
Prohibition  of,  near  military  camps,  and  to  persons  in 
uniform,  etc.,  1477, 1478. 
ALIENS: 

See  Citizenship;  Naturalization. 
Enlistment  of.  in  Navy,  .5.54. 
Midshipmen, eligibility  for  appointment,  571. 
Natives  of  insular  possessions  are  not,  113. 
Naturalization  of.  36,  114,  137-140,  567,  568,  1077,  1078, 
1443,  1505-1507. 
ALLEGIANCE: 

Oath,  Naval  Reserve  Force,  1444. 
officers  and  men  of  Naw,  1271. 


1565 


INDEX. 


ALLEGIANCE-Continued. 

Oath,   persons  prosecuting  claims    against   United 
States.  1093. 
ALLIES: 

Failing  to  assist  vessels  of,  in  battle;  punishment, 
Navy,  9*1. 
ALLOTMENTS: 

Contintrent  and  general  approi)riations  to  be  appor- 
tioned to  avoid  deficiencies,  1104,  1105. 
Pay;  insane  ix>rsons.  naval  .service,  7.S9. 

men  missing  in  action:  continuance  of,  1520, 1521. 
naval  establishment,  S25,  S20,  1249,  1407,  1498. 
Secretary  of  the  Na^•y  can  not  increase,  789. 
ALLOWANCES: 

See  Commutation;  Heat  and  Light;  Medicines;  Medical 
attendance;  Mileage;  Naval  Reserve  Force;  Quarters; 
Rations;  Subsistence;  Transportation;  Travel. 
Additional,  for  extra  services,  restricted,  10C6-1071. 
Admirals,  1512. 
Artificiallimbs,1181. 

A\iation  duty;  not  to  be  increased  for,  1513. 
Chaplains,  1301-1303, 1396. 
Chief  of  Naval  Operations,  1512. 
Chiefs  of  bureaus,  1512. 

subsequently  retired,  1303. 
Clothing  outfit  on  enlistment,  876,  877,  1203, 1403. 
Commissioned  warrant  officers, 803-805, 1267, 1429, 1430. 
Definition,  440,  827,  828,  953,  1496. 
Enlisted  men — 

Discharged:    home  on    receiving    ship    ]»nding 

reenlistment,  1201,  1202. 
Effects  lost  on  vessels;  reimbursement,  1106. 
Hospital  Corps,  1420. 
Medal  of  honor  gratuity,  1275. 
Na\'y  •  compilation  of  orders  fixing  pay  and  allow- 
ances, 850-863. 
Forage,  not  allowed  naval  officers,  1267. 
Funeral  expenses,  905,  906,  1498. 
Gunnery  sergeants,  Marine  Corps,  1383. 
Homesteads:  general  provisions  relating  to,  1083-1087. 
Judge  Advocate  General,  1512. 
Maintenance,  attaches,  828. 
Marine  Band,  952,  1463,  1464. 
Marine  Corps,  936-954,  1435, 1460. 
Medical  attendance  not  pay,  but  an  aUowanee,  440. 
Naval  officers,  827-829,  1267,  1301,  1435,  1437. 

prisoners,  1310, 1311. 
Nurse  Corps,  female,  807,  808,  1303,  1304. 
Pension  to  disabled  enlisted  men  of  specified  service, 

1154, 1155. 
Pharmacists  and  chief  pharmacists,  1420. 
Promoted  officer;  increase  commences  from  date  stated 

in  commission,  1390. 
Rations  or  commutation  therefor,  an  allowance  and 

not  pay,  9.53. 
Rear  admirals,  upper  and  lower  half,  line  and  staff, 

1429. 
Retired  enlisted  men,  Navy  and  Marine  Corps,  1299. 

officers  on  active  duty,  1437,  1512,  1513. 
Sale  of  fuel  to  officers,  943,  9.51. 
Salvage,775, 1145, 1147. 
Secretaries  to  admiral  and  vice  admiral,  455. 
Servants;  mess  attendants;  naval  officers  making  use 

of,  829. 
Special,  to  naval  personnel  under  unusual  conditions, 

696,  828, 1545. 
Travel;  distances  determined  by   Secretary   of  the 

Navy,  1315. 
Trusses  furnished  enlisted  men,  1185. 
Vice  admirals,  1512. 


ALLOWANCES— Continued. 
Waiver  of,  877. 

Warrant  officers,  803-805,  1207,  1420. 
ALMANAC: 

See  Nautical  Almanac. 
ALTER.-VTION: 

Bonds,  4&1. 
ALTERNATES: 

Nomination  of,  for  Naval  Academy,  748, 1294. 
AMBULANCE: 

Service;  Hospital  Corps  to  perform,  1420. 
Ships;  Nurse  Corps,  female,  eligible  for  duty  on,  1303, 
1304. 
AMENDMENTS: 

Charges  and  specifications,  1028. 
AMERICAN  EPHEMERIS  AND  NAUTICAL  AL- 
MANAC: 
See  Ephemeris  and  Nautical  Almanac;  Nautical  Alma- 
nac; Printing  and  binding. 
AMMUNITION: 

Navy;  unlawfully  selling,  stealing,  etc.,  990,  1325. 
Sale  of,  1516. 

War  Department;  transfer  to  other  departments,  1527. 
Wasting  or  permitting  waste;  punishment,  Navy,  985. 
AMNESTY: 

Power  to  grant,  85,  86. 
ANALYTICAL  INDEX: 

Constitution,  143-lSl. 
ANCHORAGE: 

Vessels  in  waters  of  United  States,  1300, 1301, 1382, 1485. 
ANNAPOLIS: 

See  Naval  Academy. 
Naval  Academy  established  at,  738. 
ANNUAL  REPORTS: 

See  Reports. 
ANNUITIES: 

Retired  civil  employees,  1537,  1538, 1542. 
ANTEDATING: 
See  Date. 

Commissions;  midshipmen  on  graduation  1479. 
Rank- 
promotion,  649-651,  731-734. 

commencement  of  pay,  830-838. 
Marine  Corps,  931. 
retirement,  912. 
ANTIDIPHTHERIC  SERUM: 

Injections;  naval  personnel  must  submit  to,  458. 
APPEALS: 

Attorney  General  has  no  jurisdiction  over  decisions 

of  departments,  302. 
Court  of  Claims  decisions,  1365. 
Deck  court  decisions,  1309. 
Habeas  corpus  cases,  409. 
Not  required  by  due  process  of  law,  125. 
To  heads  of  departments,  79,  362. 
President,  79,  83. 
APPLICANTS: 

For  enlistment,  not  troops  of  United  States,  1180. 
APPLICATIONS: 

Quarters;  allowance  of  commutation  without,  7C2. 
APPOINTMENTS : 

See     Commission;    Examinations;    Examining    boards; 

Recess  appointments;  reinstatement. 
Acceptance,  96,  100,  207. 

date  pay  commences,  naval  officers,  829. 
implied  resignation  of  office  already  held,  529. 
not  necessary  to  complete,  96. 
promotion,  97,  652,  654. 
Accounting   officers   notified,    when    made    without 

consent  of  Senate,  1072. 
Acting;  assistant  surgeons,  527,  1184,  1261. 


1566 


INDEX. 


APPOINTMENTS— Continued. 
Acting;  chaplains,  1396. 

ensigns,  799,  1435,  1436,  1438,  1439. 
inherent  power  of  President  to  make,  473. 
macliinists,  1269. 
paymasters,  472,  473,  839. 
warrant  officers,  525,  794,  803. 
Admiral  of  the  Navy  may  appoint  secretary,  527. 
Age  requirements,  462-464,  470,  502,  512,  592,  750,  751, 
126,S-1270,  1277,  1407,  1422,  1427,  1435,  1461,  1472,  1473, 
1507. 
Assistant  paymasters,  469,  1407. 
Secretary  of  the  Navy,  1204. 
Board's  advice  not  binding  on  appointing  power,  95. 
Brigadier  generals.  Marine  Corps,  1459,  1460. 
Chaplains,  501,  502. 
Chief  of  Naval  Operations,  1401. 
Chiefs  of  bureaus.  Navy  Departments,  362-364,  1294. 

power  to  make,  207. 
Civil- 
engineer  corps,  531. 

Establishment,  heads  of  departments  empowered 
to  make,  205. 
navy  yards,  779,  780. 
CiviUan  storekeepers,  foreign  stations,  533. 
Commissioned  warrant  officers  from  warrant  officers, 

1282. 
Commissions  delivered  after  adjournment  of  Senate, 
1072. 

withheld  after  signing,  652. 
Competitive  examinations    required,   94,   1268,   1269. 

1277,  1472,  1473. 
Congress- 
can  not  make,  92. 

can  not  require  President  to  make,  767. 
may  change  rank  of  officer  but  not  appoint  to 
different  office,  910. 
impose  additional  duties  without  appointing 

to  new  office,  94. 
indirectly  limit  power  of  executive,  92. 
prescribe  general  qualifications,  95. 
Constitutional  provision  for,  89. 
Constitutionality  of— 

special  act  designating  appointee,  93. 
statutes  requiring  examinations ,  95,  709. 

requiring  promotion  by  seniority,  647, 648,  681. 
Construction  corps,  505,  506, 1408, 1428. 
Date  of,  97,  207. 

specified  in  commission;  conclusive  upon  account- 
ing officers,  238. 
when  length  of  service  for  promotion  commences, 
464. 
Decisions  relating  to,  89-100. 
Defined,  93,  513,  522,  653,  654,  830,  930. 
Delegation  of  power  to  make,  207,  533. 
Dental  Corps,  Navy,  1421, 1422. 
Diplomatic  or  consular  service;  naval  officer  accepting, 

579. 
Director    of    civilian    markmanship;  marine    officer 

eUgible,  1465. 
Disbursing  agents,  1095. 
clerks,  209,  211. 
officer,  foreign  station,  788. 
Discretionary  power,  95. 
Dismissal  of  naval  officers  by  President  and  Senate, 

1011. 
Dismissed  midshipmen;  restrictions  on,  582,  1281. 

officers;  ineUgible,  582,  1503. 
"Employ"  construed  to  mean  appoint,  206. 
Enlisted  men  as  warrant  or  commissioned  officers; 
discharge,  523. 


APPOINTMENTS— Continued. 

Ensign,  from  commissioned  warrant  officers,  1314. 
from  graduates  of  Naval  Academy,  765-768,  1193, 

1392. 
from  warrant  officers,  1277,  1280-1282. 
Examinations;  acting  chaplains,  1396. 
acting  ensigns,  1435. 
assistant  paymasters,  470. 
assistant  surgeons,  462. 
civil  employees,  202,  780. 
competitive  required,  94, 1268,  1269,  1472, 1473. 
constitutionality  of  statutes  requiring,  95,  709. 
ensigns  from  warrant  officers,  1277. 
machinists,  1268,  1269. 
Marine  Corps,  1270,  1461. 
midshipmen,  748,  1472,  1473. 
Naval  Reserve  Force,  1445,  1451. 
Nurse  Corps,  female,  1303,  1304. 
pay  clerks,  1407. 
pharmacists,  1420. 
subject  to,  768. 
Expiration  of,  208. 

Final  as  to  qualifications  of  candidate,  96. 
Flag  officers,  576. 
Fleet  staff  officers,  499. 
Form  of,  99. 
Inspector,  weigher,  and  measurer  of  fuel  for  public 

service,  1110. 
Judge  Advocate  General  of  the  Navy,  1186,  1187. 
Judicial  decisions  relating  to,  338. 
Machinists;  qualifications,  etc.,  1268,  1269. 
Major  general  commandant.  Marine  Corps,  929,  1392, 

1460. 
Major  generals,  Marine  Corps,  1512. 
Marine  Corps;  age  and  examination  of  candidates, 
1270,  1461. 
second  Ueutenants,  922,  925,  1270,  1392,  1461, 1462. 
Medical  Corps,  461-464. 
Members   of   Congress   accepting    consideration    for 

influencing;  1332, 1333. 
Midshipmen,  747,  748,  1281, 1294,  1295,  1472,  1473,  1502, 
1507. 
on  graduation,    765-768,    1188,   1189,    1193,    1221, 
1222, 1270,  1392,  1479. 
to  Navy  or  Marine  Corps;  commencement  of 
pay,  1221, 1222, 1479. 
Naval — 

Observatory;  board  of  visitors  to  recommend,  1276. 
officers  dismissed  or  dropped  from  rolls   for  un- 
authorized absence,  not  eUgible  for,  582, 1503. 
in  time  of  war,  1392,  1393. 
may  employ  laborers  at  navy  yards,  780. 
previously  convicted  of  desertion,  573. 
Reserve  Force,  1444,  1445. 
storekeepers,  531. 
Navy  mail  clerks;  mates  eligible  for,  522. 
Nomination  of  ineUgible;  effect  of,  96. 
Nurse  Corps,  female.  Navy,  1303,  1304. 
Oath  of  office — 

appointment  or  promotion;  chief  clerks  to  admia- 

ister,  1215. 
civil,  military,  and  naval  service,  1065,  1066. 
reappointment,  97. 
Paymaster  of  the  fleet,  474. 
Pharmacists,  by  Secretary  of  the  Navy,  1262. 
Preference  to  discharged  soldiers,  etc.,  in  civil  establish- 
ment, 1065,  1383,  1524,  1526. 
President  making,  without  consent  of  Senate,  577. 

accounting  officers  notified,  1072. 
Probationary;  acting  ensigns,  1435. 
Marine  Corps,  925,  1461, 1462. 


1567 


IXDEX. 


APPOINTMENTS— rontiniied. 

Proffssors  of  mathematics,  r>03,  504. 
Promotion  and,  definea,  93,  513,  522,  653,  654,  830,  930. 
by  seniority;  constitutionality  of  statutes  relating 
to,  &17,  648,  681. 
Qualifications  of  candidate  not  open  to  review  after 

appointment,  96. 
Rank,  change  in,  is  not  appointment  to  different 

ollice,  910. 
Reappointment  not  required  by  increase  in  pay  of 
ollice,  208,  341. 
of  naval  oilicers  who  have  been  honorably   dis- 
charged, 1393. 
Recess;  accounting  officers  notified  of,  1072. 
form  of,  217. 
no  salary  until  confirmation  if  vacancy  existed 

while  Senate  in  session,  1066. 
not  accepted,  461,  462. 
retirement  of  officer  while  holding,  frtO. 
Senate  temporarily  adjourned,  33,  217. 
vacancies  in  departments,  216,  217. 
Restoration  of  dismissed  officers,  94,  582, 1281,  1503. 
Retired  officers  to  command  squadrons  and   single 

ships.  659. 
Revocation  of,  524,  529,  652,  747,  1396, 1435, 1461, 1462. 
Secretary  of  the  Navy  acts  for  President,  500. 

authorize<l  to  make,  206, 337,  525,  627,  533,  745, 1184, 
1303,  1301,  1396,  1435. 
Senate's  consent  indirectly  given,  96. 

power,  96. 
Staff  departments,  Marine  Corps,  1460, 1461. 
Statutory  requirements  apply  to  subsequent  enact- 
ments, 462,463. 
not  applicable  to  temporary,  462. 
Superintendent,  Nurse  Corps,  female;  Secretary  of  the 

Navy  to  make,  1303, 1304. 
Supply  Corps,  469. 
Surgeon  of  the  fleet,  466. 
Temporary,  99. 

accounting  officers  notified  of,  1072. 

acting  paymasters,  472. 

disbursing  clerks,  1315, 1316. 

limitation  on,  vacancies  in  departments  due  to 

death  or  resignation,  216. 
no  extra  compensation  under,  217. 
not  accepted,  100. 
termination  of;  accepting  new  commission  in  same 

grade,  669. 
vacancy,  chief  of  bureau,  213,  214. 
head  of  department,  99,  212,  214. 
Territorial    offices;  naval   persoimel   restricted    from 

accepting,  1075. 
Transfer  of  naval  officers  to  different  branch  of  the 

service,  longevity  credits,  1249. 
Unconstitutional  precedents,  95 
Volunteer  officers  transferred  to  regular  Navy,  530. 
Warrant  officers;  Marine  Corps,  1462. 

Navy,  509,  523,  534,  1268,   1269,  1406,   1407,   1419, 
1420. 
What  necessary  to  constitute,  96. 
Withholding  commission  after  confirmation,  102. 
APPORTIONMENT: 

Contingent  and  general  appropriations;  to  avoid  defi- 
ciencies, 1101,  1105. 
APPREHENDING  DESERTERS: 

Estimates  and  appropriations  for.  Navy,  1103. 
APPRENTICES: 

-Vdditional  to  authorized  number  of  enlisted  men  in 

the  Navy,  536,  1248,  1249,  1478. 
Honorably  discharged;  preferred  for  appointment  as 
warrant  officers,  534. 


APPRENTICES— Continnod . 

Navy  yards;  not  ciihsled  men,  538. 

Number  authorized  to  be  enUsted,  534. 
APPROPRIATIONS: 

See  Contingent  fu7ids:  Estimates. 
Abstracts  of  title,  etc.,  294. 
Accounts  to  be  rendered  according  to,  1097. 
Adjustment  of,  for  supplies  and  services  to  other  de- 
partments or  bureaus,  579, 1409,  1536. 
Allotments,  to  avoid  deficiencies,  1104, 1105. 
Applied  solely  to  the  objects  for  which  made,  1104. 
Apportionment  of  general  and  contingent,  to  avoid 

deficiencies,  1101, 1105. 
Balances  unexpended;  disposition  of,  1107,  1177,  1188, 

1195,  1409,  1557. 
Books  of  reference,  law   books,   and  periodicals;  re- 
strictions on  purchase  of,  1073,  1261. 
Civil  establishment;  number  and  pay  of  employees 

Umited  by,  205,  1188,  1384,  1409. 
Clothing,    Marine   Corps;  available   for   reimbursing 
claimants  for  lost  clothing,  etc.,  1493. 
purchase  of  uniforms,  etc.,  lor  sale  to  officers,  1531. 
Coast  and  Geodetic  Survey;  expenses  defrayed  from 

naval,  1479. 
Coast  Guard  expenses — 

Defrayed  by  Navy  when  cooperating,  1091. 
Naval  appropriations  reimbursed  for,  1456. 
Commissions  or  inquiries;  expenses  of,  require  special 

appropriation,  1105,  1316. 
Compensation  of  officials  and  clerks;  contingent,  inci- 
dental, and  miscellaneous  not  available  for,  1105, 
1188,  1384. 
Conditions  upon;  constitutionality;  duties  of  Marine 

Corps,  954. 
Contingent — 

Annual  report  of  expenditures  from,  226. 
Apportionment  between  bureaus,  1384. 

to  avoid  deficiencies,  1104, 1105. 
Employment   of  civil   cstabUshment   restricted, 

1105, 1188, 1384. 
Enumerated;  expense  of  insane  patients,  788, 789. 
Expenditures;  jurisdiction  of  accounting  officers, 
243. 
written  order  of  head  of  department  required, 
1105, 1106. 
Expenses  of  commissions  and  inquiries  not  to  be 

paid  from,  1105. 
Navy  Department;  controlled  and  expended  by 

direction  of  the  Secretary,  1104. 
Restrictions  on  purchases,  1073. 

law  books,  books  of  reference,  and  periodicals, 
1261. 
Use  of,  828. 
Contracting  in  excess  of,  1104, 1116, 1288,  1331. 
Courts  martial  and  courts  of  inquiry;  expenses  of,  may 

be  allowed  without  special  appropriation,  1105. 
Deficiency — 

Contracts  for  naval  supplies  permitted,  1116,  1288. 
Contracts  for  tobacco,  butter,  and  cheese  for  periods 

more  than  one  year,  1113. 
Not  to  be  incurred,  1104, 1105, 1238. 
exceptions,  1288. 
Disbursing  clerk  employed  in  excess  of,  211. 
Equipment  of  vessels;  care  of  gifts  defrayed  from,  1305. 
Estimates  required  to  be  furnished  Secretary  of  the 

Navy  by  bureaus,  385. 
Exceeding  of,  prohibited,  1104,  1105,  1116,  1187,  1238, 

1288,  1331. 
Expenditures;  acciunulation    of  supplies   for   future 
years,  387,  1113. 
after  fiscal  year,  1107. 


1568 


INDEX. 


APPROPRIATIONS— Continued. 

Expenditures;  quarterly  publication  of,  262. 
Experiments,  Bureau  of  Ordnance;  use  of;  restrictions 

not  applicable  to,  1395,  1396. 
Fines  and  forfeitures,  courts-martial;  expenses  of  pris- 
oners paid  from,  1313. 
Fiscal  year  defined,  257. 
Foreign  hydrographic  surveys;  restrictions  on  use  of, 

1106, 1237. 
Form  of  bUls  maldng,  1290. 

Fuel  and  transportation ;  expenses  chargeable  to,  1407, 
1408,  1482,  1515,  1547, 1548. 
District  of  Columbia;  paj-ment  for  deliveries  dur- 
ing previous  fiscal  year,  1553. 
General  account  of  advances,  authorized  for  Navy, 

1183. 
General;  apportionment  of,  to  avoid  deficiencies,  1104 
1105. 
not  available  for  official  and  clerical  compensation, 

1105, 11S8, 1384. 
not  to  be  used  for  expenses  of  commissions  and 

inquiries,  1105, 1316. 
pro\-isions  relating  to,  1101-1108. 
Incidental,  not  to  be  used  for  official  or  clerical  com- 
pensation, 1105, 1188,  1384. 
Increase  of  the  Navy,  construction  and  macliinery; 
equipment  outfits  chargeable  to,  1408. 
report  of  civUians  employed  under,  1272. 
Interpretation  of,  22. 

Land  for  pubhc  building;  specific  appropriation  not 
to  be  exceeded,  1116. 
purchase  of;  decisions  relating  to,  294. 
Lighthouse  Service;  expenses  defrayed  from  naval, 

1456. 
Limited  to  year  for  which  made,  387. 
Lump  sum;  explanations  to  accompany  estimates, 
1385,  1386,  1417. 
personal  services  employed  under,  336, 1105, 1307, 
1312,  1313,  1389,  1398,  1418,  1419,  1491,  1492,  1503. 
Maintenance,  Bureau  of  Yards  and  Docks;  available 

for  naval  training  stations,  1530. 
Medal  of  honor  gratuity,  enUsted  men,  515. 
Miscellaneous  receipts,  appropriation  required  for  use 

of,  1095. 
Naval- 
Academy;  restriction  on  use  of,  751. 
Home;  payment   of  beneficiaries  employed    at, 

1294. 
Reserve  Force,  retainer  pay,  1455. 

withheld  and  credited  to;  use  of,  1552. 
service,  used  for  ci^^l  estabUshment;  annual  report 

of,  to  Congress,  1194. 
supply  account  fund;  appropriation  for  creation  of, 
1557. 
Navy- 
Annual  report  by  Secretary  of  the  Navy,  381. 
by  Secretary  of  Treasury,  261,  1183. 
to  Secretary  of  Treasury,  265,  266. 
balances;  estimates  of  probable  demands  on,  381. 
controlled  and  expended  by  direction  of  the  Sec- 
retary of  the  Navy,  1104. 
credited  with  appraised  value  of  stores,  etc.,  turned 

in  from  ships  and  stations,  1397. 
direct  and  indirect  charges  included  in  cost  of 

work,  1305, 1366. 
disbursements  made  by  order  of  Secretary;  re- 
sponsibility, 266. 
each  bureau's  to  be  kept  separate  in  Treasury, 
1104. 
expenditures  to  be  accounted  for,  1102,  1103. 


APPROPRIATIONS— Continued. 

Navy — Continued. 

indemnity  to  seamen  and  marines  for  lost  clothing, 

1106. 
information  from  abroad,  use  of,  828. 
insane  patients  m  institutions,  788,  789. 
maintenance  of  students  and  attaches;  use  of,  828. 
permanent  annual,  1106, 1107. 
petroleum  fund;  use  of,  1399. 
purchase  of  supplies  from,  without  regard  to  bu- 
reaus, 1216. 
salvage,  payment  to  salvors,  1106. 
titles  of,  1102, 1103. 
New  ships;  restrictions  on  employment  of  civQians 

from,  1281. 
Newspapers;  expenditures  limited,  225, 1073. 
ObUgating  in  excess,  prohibited,  1104,  1288,  1331. 
Obtaining  information  from  abroad  and  at  home; 

accounting  for  expenditures,  1417. 
Outfits  on  first  enlistment;  available  for  reimbursing 

naval  personnel  for  lost  clothing,  etc.,  1493. 
Outstanding;   amount  to  be  reported  in  annual  esti- 
mates, 1102. 
Overobligattng,  restrictioas  on,  1104, 1288, 1331. 
Passenger   vehicles;     restrictions    on   piu-chase   and 

maintenance,  1283,  1284, 1398. 
Pay — Marine  Corps;  avaUable  for  payment  of  claims 
for  damaged  or  lost  property,  1493. 
construed  as  permanent,  1-386. 
deposits  credited  to,  1295. 
death  gratuity  payable  from,  1547. 
retainer  pay.  Marine  Corps  Reserve,  chargeable 

to,  1455. 
special  allowances  paid  from,  1545. 
unexpended  balances,  1177, 1178, 1195. 
Pay,  miscellaneous;  credited  with  interest,  premiums, 
and  exchange,  1222. 
special  allowances  to  naval  personnel  paid  from, 
1545. 
Pay  of  ci\H  employees  not  appropriated  for,  204. 
Pay  of  the  Navy;  claims  for  damaged  property  paid 
from,  1493. 
compensation  of  Naval  Academy  band  payable 

from,  1355. 
construed  as  permanent,  1386. 
cost  of  Navy  medals,  crosses,  and  bars,  paid  from, 

1522. 
death  gratuity  payable  from,  1547. 
retainer  pay.  Naval  Resen-e  Force,  chargeable  to, 

1455. 
unexpended  balances,  1177,  1178,  1195. 
use  of,  515, 1183. 
Periodicals,  restrictions  on  purchase  of,  1073. 
Permanent,  HOG,  1107, 1386. 
Personal  services  in  excess  of,  restricted,  1104. 
Post  laundries.  Marine  Corps;    receipts  credited  to 

appropriations,  1531. 
Printing  and   binding;    hydrographic  surveys  and 
charts;  restrictions  on  use,  1106. 
must  be  specific,  1296. 
not  to  be  exceeded,  1238. 
Proceeds  of  sales,  condemned  Navy  clothing,  revert  to, 

1108. 
Receipts   from   sale   of  publications,    Hydrographic 

Office,  390. 
Rented  buildings.  District  of  Columbia;    specific  re- 
quired, 1181, 1182,  1187. 
Repairs  and  changes  in  naval  vessels;  must  be  made 

in  detail,  1299. 
Repairs  and  preservation:  available  for  naval  training 
stations,  15-30. 


1569 


INDEX. 


APPnOPRIATIONS— Continued. 

Requisitions  for  money  in  Treasury,  1104. 

Reserve  material,   Na\'y;    reimbursement  for  stock 

issued,  1473,  14S2. 
Restrictions  on  purchaser  from;    newspapers  .books, 

periodicals,  etc.,  1073. 
Reuse  of  proceeds  from  sale  of  timber  lands,  logs,  etc., 

151S. 
Royalties  on  lands  ulthin  naval  petroleum  reserves 

use  of,  1^A5. 
Shells  and  projectiles;    restrictions  on  expenditures 

for,  1395,  13%. 
Small  stores  fund  used  for  purchase  of  small  stores  in 

Na\-j',  1184. 
Specific  language  necessary  to  make,  1297. 
Supplies  for  departments;  restrictions  on  expenditure 

of,  1526. 
Telegrams,  telephones,  letters,  etc.;  restriction  on  use 

of,  to  influence  legislation,  1527. 
Title  of  acts  making,  1S7. 

Transfer  between  bureaus  and  departments,  for  sup- 
plies and  services,  579, 1409,  1536. 
of  property  specifically  appropriated  for  a  par- 
ticular navy  yard,  779. 
Transportation,  recruiting  and  contingent;   expenses 

chargeable  to,  1274, 1275. 
Unexpended  balances;  disposition  of,  1107, 1177, 1188, 
1195,  1409,  1557. 
for  civil  employees,  disposal  of,  1188. 
of  naval  appropriations  transferred  to  naval  sup- 
ply account  fund,  1557. 
reappropriation  of,  1409. 
Vehicles  for  public  officers;    must  be  specific,  1283, 

12S4, 1398.  ' 

Voluntary  services  prohibited,  1104. 
Witnesses'  fees,  413,  418, 1310. 
APPROVAL: 

Bonds,  480-481,  486,  487. 

Claims;  effect  of  action  by  Secretary  of  the  Navy,  237, 

238,  272. 
Court-martial  sentences,  1036, 1051, 1312. 
Expense  accounts,  jurisdiction  of  accounting  officers, 

242,  243,  244. 
Findings  of  examining  boards,    President's  action, 

724-728. 
Retiring  board  records;   President's  action,  616. 
ARLINGTON: 

Memorial  ampliitheater;  memorials  and  entombments 
in,  1559. 
ARMAMENT: 

Sale  of,  for  sentimental  reasons,  1284. 
ARMOR: 

Advertising  required  for  purchase.  Navy,  1223. 
ARMOR  PLANTS: 

Cost  of  product;  report  to  Congress,  1419. 
ARMS: 

Navy;  unlawfully  selling,  stealing,  etc.,  990,  1325. 
Right  of  people  to  carry,  117. 
ARMY: 

See  Articles  of  War;    Executive  departments;    Marine 

Corps;  Public  property;    War  Department. 
Allowances,  except  forage,  extended  to  naval  officers, 

12(57. 
Appointment  of  dismissed  midshipman  as  officer  of, 

restricted,  12S1. 
A\iation;  jurisdiction  of,  defined,  1554. 
Cadet  service  not  credited  to  naval  officers,  1390. 
Command  of  joint  Army  and  naval  forces,  443,  444, 668. 
Courts-martial;  convening  of,  on  naval  vessel,  65. 
jurisdiction  over  naval  personnel,  1544. 
marine  officers  may  serve  as  members  of,  1544. 


ARMY— Continued. 

Deserter;  appointment  as  officer  of  Navy,  573. 
Enlisted  men  transferred  to  Navy  or  Marine  Corps,  555. 
General  provisions  relating  to,  433-444. 
Jurisdiction  over  naval  personnel,  1544. 
Marine  Corps;  command  in,  443. 
cooperating  with,  %1. 
detached    for   service    with;    status  and   duties; 

decisions  relating  to,  443,  956-963. 
rank  in  relation  to,  930,  931. 
Midshipman  service  not  credited  to  officers  of,  1388. 
Naval  deserters  serving  in;  punishment  for  retaining, 
1544. 
forces  cooperating  with;  supplies  and  transporta- 
tion, 433. 
medical  personnel  serving  with,  1421. 
officers  credited  with  services  in,  1191. 

detailed  for  duty  in  connection  with,  578. 
Nurse  Corps;  laws  appUcable  to  Navy  Nurse  Corps, 

female,  1303,  1304. 
Oath  of  allegiance  extended  to  officers  and  men  of 

Navy,  1271. 
Officers'   Reserve  Corps;  leave  of  absence,  civil  em- 
ployees; reinstatement,  etc.,  1476. 
Pay  and  allowances;  applicable  to  Marine  Corps,  940- 

943. 
Promotion  laws  applicable  to  Marine  Corps,  924. 
Quartermaster's  Department  to  furnish  suppUes  and 
transportation  for  naval  and  marine  detachments, 
433. 
Reduction  of;  decisions  relating  to,  98-99. 
Relative  rank  with  Navy,  662. 

Retirement  laws  applicable  to  Marine  Corps,  964,  965. 
Rifle  ranges;  use  of  by  naval  service,  1412,  1413. 
Sale  of— 

Ordnance  and  ordnance  stores  to  other  depart- 
ments, 1388. 
Ordnance  to  naval  officers,  1312. 
Subsistence  stores,  to  Navy  and  Marine  Corps 
personnel,  1465. 
Service  credited  to  erdisted  men  of  Navy  and  Marine 
Corps  for  retirement,  1291, 1299. 
to  officers  for  longevity  pay  in  Navy,  Marine  Corps, 
etc.,  1535. 
Supplies,  real  estate,  etc.;  interchanged  between  Army 

and  Navy,  1528. 
Transports;  accommodations  available  for  naval  per- 
sonnel and  suppUes,  1298. 
families  of  naval  personnel  and   employees  may 

use,  1298. 
inspection  by  naval  officers,  507,  578. 
passengers  for  Guam  transported  on,  1298. 
ARRAIGNMENT: 

Waiver  by  accused,  126. 
ARREARS: 

W  ithholding  pay  of  officer,  1072. 
ARREST: 

Accused,  for  trial  by  court-martial,  117,  1025,  1026. 

furnished  with  charges  at  time  of,  131. 
Cixdl  authorities;  persons  in  naval  or  civU  service,  292, 

293,  825,  871,  950. 
CiviUans  by  naval  authorities,  1387, 1478. 
Commanding  officer  of  vessel  may  inflict  as  punish- 
ment, 1002. 
Definition  of,  1025,  1026. 
Deserters  from  the  Navy,  117,  987,  1103,  1311. 
Enlisted  man,  by  civil  authorities;  pay  during  ab- 
sence, 871,  950. 
Exemption  of  Federal  officers  from  State  jurisdiction, 
51. 
of  marines  in  certain  cases,  935. 
False  imprisonment,  responsibility  of  officer,  54,  57. 


1570 


INDEX. 


ARREST— Continued. 

Habeas  corpus;  enlisted  man  discharge  may  be  rear- 
rested, 409. 
officer  under  nominal  arrest,  1029. 
Illegal,  responsibility  for,  54,  57. 
Immunity  from,  Member  of  Congress,  33. 
Military  offenders,  117,  987, 1026, 1103,  1311. 
Naval- 
Authorities  may  make,  without  assistance  of  civil 

authorities,  1026. 
offenders  may  be  arrested  by  civil  officers  for  naval 

authorities,  1311. 
officers  authorized  to  make;  1387, 1478. 
for  trial  by  court-martial,  1029. 
not  in   custody;  habeas  corpus  proceedings 

by,  407. 
on  bail,  1026. 
Nominal;  moral  restraint,  1029. 
Offenders  who  have  been  discharged  or  dismissed  from 

naval  service,  991. 
Officer  awaiting  trial  by  civil  authorities;  pay,  825. 
to  deliver  up  sword,  1029. 
under;  commutation  of  quarters,  700,  701. 
Plea  of  former  arrest,  119. 
Rewards  for  arrest  of  deserters,  118. 
ARSENALS: 

Enticing  workmen  from,  1327. 
ARSON: 

Burning  of  vessel,  1353. 
Dwelling  house  or  other  building,  1350. 
Mailing  matter  tending  to  incite,  1340,  1341. 
ARTICLES  FOR  THE  GOVERNMENT  OF  THE 
NAVY: 
See  Courts-martial;  Crimes. 
Abetting  combination  against  commanding  officer,  984. 

the  making  or  signing  of  a  false  muster,  985. 
Absence — 

From  command  without  leave,  988. 

station  or  duty  without  leave,  or  after  ex- 
piration of,  985. 
Leaving  station  before  being  regularly  reheved ,  979 . 
Without  leave;  officer  whose  resignation  has  not 
been  accepted,  989. 
or  after  leave  has  expired,  985. 
Abusing  inhabitants  on  shore,  985. 
Accepting  challenge  to  fight  duel,  9S4. 
Accounts;  commanding  officer  and  paymaster  to  sign 
when  men  sent  from  ship,  995. 
final  pajrment  of  crew ;  duties  of  commanding  offi- 
cer relating  to  settlements,  995. 
to  accompany  men  transferred  to  other  vessels, 

995. 
to  be  furnished  officers  and  men  whenever  sent 
from  ship  for  any  cause,  995. 
Acting  commanding  officer,  punishments  by,  1005. 
master-at-arms  refusing  to  receive  prisoners  or  suf- 
fering them  to  escape,  985. 
Adequate  punislmient  required  by  court-martial,  1034. 
Advising  the  commission  of  frauds  upon  United  States, 

990,  991. 
Agreements  to  defraud  the  United  States,  990. 
Aiding  and  enticing  others  to  desert  in  time  of  peace, 
985. 
or  abetting  the  making  of  a  false  muster,  985. 
others  to  betray  trust  in  time  of  war,  979. 
Alcoholic  liquors;  restriction  on  admission  to  naval 

vessels,  989.    ■ 
AlUes;  faiUng  to  assist  vessels  of,  during  battle,  980. 
Ammunition  intended  for  naval  service;  unlawfully 
selling,  stealing,  etc.,  990. 
wasting  or  permitting  same,  985. 


ARTICLES  FOR  THE  GOVERNMENT  OF  THE 

NAVY— Continued. 
Arms  intended  for  naval  service,  unlawfully  selling, 

stealing,  etc.,  990. 
Army  courts-martial  may  punish   offenses  against, 

committed  by  marines,  1544. 
Arrest  by  commanding  officer  as  punishment,  1002. 

of  offenders  after  discharge  or  dismissal,  991. 
Articles  to  be  displayed  on  vessels,  996. 

to  be  read  once  a  month  to  ship's  company,  996. 
Assault  and  battery,  defined,  981. 

attempting  or  threatening  to  strike  or  assault 
superior  officer,  979. 
Assaulting  other  persons  in  the  Navy,  984. 

superior  officer  while  in  execution  of  his  duties,  979. 
Assembly,  mutinous,  979. 
Attempts;  desertion  in  time  of  peace,  985. 
fraud  against  United  States,  991. 
mutiny,  979. 

to  corrupt  person  in  Navy  to  betray  his  trust,  9S1. 
to  desert,  987. 

to  foment  quarrels  between  others  in  the  Navy,  984. 
to  strike  flag  to  enemy,  980. 
to  strike  or  assault  superior  officer  while  in  execu- 
tion of  his  duties,  979. 
Authority  of  officers  after  loss  of  vessel,  996. 
Bad-conduct  discharge  by  summary  court-martial, 

1006. 
Battle;    avoiding,   or  displaying  cowardly   conduct 
during,  980. 
deserting  duty  or  station  during,  or  enticing  others 

to  do  so,  980. 
failing  to  encourage  inferiors  to  fight  courageously, 
980. 
to  seek  encounter  or  to  assist  other  vessels,  9S0. 
neglecting  to  join  on  signal  for,  980. 

to  prepare  for,  980. 
negUgence  in  obeying  orders  during  or  when  pre- 
paring for,  980. 
treacherously  yielding  or  crying  for  quarter,  980. 
Betraj-ing  or  deserting  trust  in  time  of  war,  or  enticing 
or  aiding  others  to,  979. 
corrupting  person  in  Navy,  9S1. 
Branding  prohibited,  1034. 

Bread  and  water;   confinement  on,  by  commanding 
officer,  as  punishment.  1002. 
may  be  adjudged  by  summary  court-martial,  1006. 
Burning  public  property,  unlawfully,  980. 
Buying  property  of  United  States  unlawfully  sold,  990 
Capital  offenses,  979-982. 

punishment;   imprisonment  in  penitentiary  sub- 
stituted for,  983. 
Carelessness  in  obeying  orders,  984. 
Casualties  to  be  reported  to  Secretary  of  the  Navy  by 

vessels,  995. 
Catch-aU  clause,  996-1002. 

Certificate;  delivering  less  property  or   money  than 
called  for  in  receipt  or,  990. 
making  or  deUvering  without  knowing  truth  of; 
with  intent  to  defraud,  990. 
Challenge  to  fight  duel;  sending  or  accepting,  984. 
Chaplains  to  conduct  divine  services  on  Sunday,  979. 
Citizenship  of  men  to  be  entered  in  ship's  books,  995. 
Civilians  punishable  under,  for  acting  as  spies,  etc.,  982. 
Claims  against  United  States;   offenses  in  coimection 

with,  990,  991. 
Clothing  intended  for  naval  service;  unlawfully  selling, 

stcaUng,  etc.,  990. 
Coast  and  Geodetic  Survey  subject  to,  1479,  14S0. 
Coast  Guard  subject  to,  1455. 
Combinations  against  commanding  officer,  984. 


1571 


JXDEX. 


ARTICLES  FOR  THE  (JOVERNMENT  OF  THE 

X.4VY— Coulimied. 
Command,  absence  from  without  leave,  988. 

power  of,  continues  after  loss  or  wreck  of  vessel,  996- 
Commanding  officer:    combinations  against,  984. 
duties  of,  995,  996. 

duty  of  example  and  correction,  978,  979. 
puni.shments  by,  10()l'. 

IHini.sltment  of  offenses  committed  by,  978,  979,  996. 
reports  required  to  be  made  by,  to  Secretary  of  the 

Navy,  99."). 
rules  to  be  obeyed  by,  995,  996. 
temporary,  puni.shments  by,  1005. 
to  cause  divine  service  to  be  conducted  on  Sunday, 

979. 
to  inspect  conduct  of  subordinates,  978,  979. 
to  suppress  immoral  practices,  979. 
Commissioned  officers;    punishments  inflicted  upon 

by  commanding  officer,  1002. 
Conduct  of  personnel  to  be  inspected  by  commanding 
officer,  978,  979. 
to  the  prejudice  of  good  order  and  discipline,  1000. 
unbecoming  an  officer  and  a  gentleman,  998-1000. 
Confinement;   acting  commanding  officer  may  inflict 
as  punishment,  1005. 
by  commanding  officer  as  punishment,  1002. 
summary  court-martial  may  adjudge,  1006. 
Conspiracy  to-  defraud  the  United  States,  990. 
Contempt  of  superior  officer;  while  in  execution  of  his 
duties,  984,  9S6. 
punishable  by  general  court-martial,  1021. 
Conversion;  money  or  property  intended  for  the  naval 

service, 990. 
Convicts;  court-martial  prisoners  in  civil  institutions 

treated  as,  983. 
Convoying  merchant  or  other  vessels,  offenses  con- 
nected with,  985. 
Corrupting  person  in  Navy  to  betray  trust,  981. 
Countenancing  a  fraud  against  United  States,  991. 
Cotmterfeiting  signatures  in  connection  with  claims 

against  United  States,  990. 
Court-martial    sentence    required    for    pimishment, 
except  as  otherwise  specified,  1002. 
to  investigate  loss  of  vessel,  996. 
Courts  of  inquiry;    general  provisions  relating  to, 
1055-1057. 
to  investigate  loss  of  vessel,  996. 
Cowardly  conduct  in  battle,  980. 
Crew  separated  from  vessel  by  wreck  or  loss;  status  of; 

authority  of  officers,  996. 
Cruelty  toward  subordinates,  984. 
Culpable  inefficiency  in  performance  of  duty,  984. 
Dates  of  deaths  and  desertions  to  be  recorded  in  ship's 

books,  995. 
Dealing  in  supplies  for  private  benefit,  989. 
Death;  imprisonment  in  penitentiary  substituted  for, 
983. 
offenses  punishaV)le  by,  979,  980,  981,  982. 
officer  demanding  trial  may  be  sentenced  to,  1012. 
on  vessel;  effects  to  be  secured  for  legal  represen- 
tatives, 995. 
sentence  must  be  confirmed  by  President,  1036. 
prohibited   unless  speciflcaUy  authorized  in 

articles,  1034. 
two-thirds  of  members  must  concur  in,  1034. 
to  be  entered  in  ship's  books,  995. 
Deck  courts  may  impose  punishments  under,  1308. 

punishments,  1309. 
Demanding  compensation  for  convoying  merchant  or 
other  vessels,  985. 


ARTICLES  FOR  THE  (JOVERNMENT  OF  THE 

NAVY— Continued. 
Demanding  compensation  lor  transportation  of  articles 

other  than  gold,  silver,  or  jewels,  985,  9SG. 
Deprivation  of  liberty  on  shore;  by  commanding  offi- 
cer, as  ])unishment,  1002. 
on  forei.i;n  station:  summary  court-martial  sen- 
tence, 1006. 
Descriptive  list  of  men  to  be  entered  in  ship's  boo'<cs 
995.  ' 

to  accompany  men  transferred  to  other  vessels,  995. 
to  be  furnished  men  whenever  sent  from  ship  for 
any  cause,  995. 
Deserters;  in  time  of  war, penalty  for  enlistment  of, 994. 
names  of,  recorded  in  ship's  books,  with  date  0£ 

offense,  995. 
recei\Tng,  entertaining,  or  failing  to  give  notice  of, 
to  superiors,  985. 
Deserting  duty  or  station  in  battle  or  enticing  others 
to  do  so,  980. 
or  betraying  trust  in  time  of  war  or  enticing  or 
aiding  otliers  to,  979. 
Desertion;  by  resignation,  989. 
defined,  987. 

enticing  others  to  desert  in  time  of  war,  979. 
intent  to  remain  permanently  absent,  commis- 
sioned officer,  989. 
in  time  of  peace;  or  attempting  to  desert;  or  aiding 

and  enticing  others  to,  985. 
time  of  war;  punislunent,  979. 
Destniction  of  public  property;  failing  to  prevent,  984. 

not  in  possession  of  enemy,  etc.,  980. 

Directing  the  making  or  signing  of  a  false  muster,  985. 

Discharge;  no  bar  to  court  martial  for  certain  offenses, 

991. 

of  ship's  company;  vessel  lost;  discipline,  996. 

summary  courts-martial  may  adjudge,  1006. 

Discipline;  violation  of,  after  loss  of  vessel;  punishment, 

996. 
Discretionary  pimishments,  985,  979,  981,  983-985,  990, 
991,  994,  996. 
limitation  of,  in  time  of  peace,  1062-1064. 
Dismissal  mandatory  for  certain  offenses,  994,  1029, 
1031,  1064,  1287. 
no  bar  to  court-martial  for  certain  offenses,  991. 
of  commissioned  or  warrant  officer;  sentence  must 
be  confirmed  by  President,  1036. 
Disobedience  of— 

General  order  or  regulation  of  the  Secretary  of  the 

Navy,  985. 
Orders;  nature  of  the  offense,  980. 
negligence  in  obeying,  984. 
whether  constitutes  scandalous  conduct,  980. 
Disobeying  lawful  orders  of  superior  officer,  979. 
Disrating    for   incompetency,    by    summary    court- 
martial,  1007. 
Disrespect  to  superior  officer  while  in  execution  of  his 

duties,  984. 
Dissolute  practices;   commanding   officer's   duty   to 

suppress,  978,  979. 
Distilled  spirits  on  naval  vessels  only  for  medical 

purposes,  989. 
Di^-ine  services;  irreverent  behavior  during,  979. 

to  be  conducted  on  Sundays,  979. 
Drunkenness,  984,  986. 
Duels;  sending  or  accepting  challenge,  or  acting  as 

second,  984. 
Dutiable  goods;  importing  in  naval  vessel,  989. 
Duties;  absence  from,  without  leave  or  after  expira- 
tion of,  985. 


1572 


INDEX. 


ARTICLES  FOR   THE   GOVERXiVIEXT  OF  THE 

NAVY— Continued. 
Duties;  culpable  inelficiency  in  performance  of,  984. 
e.xtra,  imposed  by  commanding  officer  as  pimisli- 

ment.  1002. 
extra  police;  summary  court-martial  may  adjudge, 

1007. 
suspension    from,    by    commanding    officer,    as 
pimislmient.  1002. 
Effects  of  deceased  persons;  disposition  of,  995. 
Em))ezzlement — 

Decisions  relating  to,  997,  998. 
Money  or  property  intended  for  the  naval  service, 
990. 
on  prize,  994. 
Enemy  or  rebel:  intercourse  with,  979. 

yielding  or  striking  flag  to,  without  authority,  980. 
Enlisted  men — 

May  be  tried  by  summary  courts-martial,  1006. 
On  vessels;  information  concerning,  to  be  recorded 

in  ship's  books,  995. 
Pimishments    inflicted    upon    by    commanding 
officer,  1002. 
Enlisting  deserters,  insane  or  intoxicated   persons, 

minors,  994. 
Enlistment;  date,  place,  and  term  of  to  be  entered  in 

ship's  books,  995. 
Entertaining  deserters,  985. 
Enticing- 
Desertion  in  time  of  war,  979. 
Others  to  betray  or  desert  trust  in  time  of  war,  979. 
to  desert  in  time  of  peace,  985. 

station  or  duty  during  battle,  980. 
Entries  required  to  be  made  in  ship's  books,  995,  996. 
Equipments,  intended  for  naval  service;  unlawfully 

selling,  stealing,  etc.,  990. 
Escape,  prisoners;  acting  master  at  arms  permitting, 

985. 
Espionage  act  not  to  limit,  jurisdiction  of  courts-martial 

under,  1484. 
Example;  commanding  officers  to  show  good,  978,  979. 
E.xecuting  a  fraud  against  United  States,  991. 
Extra   duties  imposed    by   commanding   officer   as 
punishment,  1002. 
police  duties:  simimary  court-martial  may  adjudge, 
1007. 
Failing  to  do  utmost  to  suppress  mutiny,  979. 
to  give  notice  of  deserters  to  superiors,  985. 
to  inform  commanding  officer  of  intended  mutiny, 

979. 
to  inform  superior  officer  of  unlawful  communi- 
cation with  enemy  or  rebel,  979. 
to  perform  duties  in  convoying  merchant  or  other 

vessels,  985. 
to  use  best  efforts  to  prevent  destruction  of  public 
property,  984. 
Falsehood,  984,  986. 

False  muster;  making  or  signing,  or  aiding,  abetting 
or  directing,  985. 
or  fraudulent  claims  against  United  States,  990. 
receipts  or  certificates,  990. 

statements:  making  or  using  in  claims  against 
United  States,  990. 
Fines;  courts-martial  may  adjudge,  990. 
credited  to  naval  hospital  fimd,  1159. 
transportation  of  discharged  prisoners  paid  from, 
1313. 
Flogging  prohibited,  1034. 

Fomenting  quarrels  between  other  persons  in  the 
Navy,  984. 


ARTICLES  FOR   THE   OOVERNMEXT  OF  THE 

NAVY— Continued. 
Foreign  coimtry;  bad-conduct  discharge  not  to  he 
executed  in,  1006. 
station,  deprivation  of  shore  liberty  on,  by  sum- 
mary court-martial,  1(K)6. 
Forging  signatures  to  papers  in  coimection  with  claims 

against  United  States,  990. 
Fraud,  984. 

against  the  United  States,  990,  991. 
Fraudulent  claims  against  United  States,  990. 

enlistment,  996,  1000,  1222. 
Fugitive  from  service  or  labor;  pimislunent  for  return- 
ing, 994. 
Gambling,  984. 
General  courts-martial:  pro\-isions  relating  to,  1014- 

1055. 
General  offenses  not  specified;  how  pimished,  996-1002. 
General  orders  of  Secretary  of  the  Navy:  violating  or 

refusing  obedience  to,  985. 
Gestures,  provoking  or  reproacliful:  use  of,  toward  other 

persons  in  Navy,  984. 
Gold,  silver,  or  jewels;  transportation  on  naval  vessel, 

985,  986. 
Harboring  deserters,  985,  988. 
Hard  labor;  courts-martial  may  adjudge,  983,  984. 
Hazarding  vessel,  980. 

through  negligence,  985. 
Health    of   accused    before   summary    court-martial; 
punishment  dependent  upon,  1009. 
of  crew;  duties  of  commanding  officer  and  surgeon 
relating  to,  995. 
Honor;  commanding  officer  to  show  example  of,  978, 

979. 
Immoral    practices;  commanding    officer's    duty    to 

suppress,  978,  979. 
Importing  dutiable  goods  in  pubUc  vessel,  9S9. 
Imprisonment;  courts-martial  may  adjudge,  990. 

in  penitentiary,  983,  984. 
Incompetency;  summary  court-martial   may  disrate 

for,  1007. 
Inefficiency  in  performance  of  duty,  984. 
Inhabitants  on  shore;  offenses  against,  985. 
Insane  persons;  penalty  for  enlistment  of,  994. 
Intelligence;  giving  to  enemy  or  rebel,  979. 
Intercourse  with  an  enemy  or  rebel,  979. 

punishment  for  delivering  seducing  messages,  etc., 
981. 
Intoxicants;  distilled  spirits  on  naval  vessels  only  for 

medical  purposes,  989. 
Intoxicated  persons;  penalty  for  enlistment  of,  994. 
Intoxication,  984. 
I  Irons  abolished,  except  for  safekeeping  and  by  general 

court-martial  sentence,  1309. 
Irreverent  behavior  during  divine  service,  979. 
Jewels,  gold,  or  silver,  transporting  on  naval  vessel, 

985,  986. 
Joining  in  combination  against  commanding  officer, 

984. 
Language,    disrespectful    to    superior    officer    while 

executing  his  duties,  984. 
Larceny,  984. 

money  or  property  intended  for  naval  service,  990. 
Leave,  absence  without  or  after  expiration  of,  9%. 
Leaving  station  before  being  regularly  relieved,  979. 
Letters  from  enemy  or  rebel,  receiving  or  failing  to 
report,  979. 
punishment  for  delivering,  981. 
Liberty   on  shore;  deprivation   of,   by   commanding 
officer,  as  punishment,  1002. 


1573 


lyoEX. 


ARTICLES  FOR  THE  GOVERVMENT  OF  THE 

XAVY— Contiuucd. 
Liberty  on  shore;  on  foreign  station;  deprivation  of  by 

summary  court  martial,  1006. 
Lighthouse  Service,  subject  to,  1456,  1457. 
Limitation  of— 

Punishments  in  time  of  peace,  1062-1064. 
Trials;  desertion  in  time  of  peace,  1060-1062. 
general  offenses,  1057-1060. 
Log;  punishments   inflicted    by    commander    to    be 

entered  in,  1002. 
Loss  of  pay  by  sentence  of  summary  court  martial,  1007. 
Making  false  muster,  or  aiding,  abetting,  directing,  or 

procuring,  9S5. 
Maltreating  inhabitants  on  shore,  985. 

personnel  of  merchant  or  other  vessels  under  con- 
voy, 985. 
persons  on  prize,  994. 
subordinates,  984. 
Manslaughter,  998. 
Marine  Corps  subject  to,  960,  961. 
Marines;  punishments  inflicted  upon  by  commanding 

officer,  1002. 
Marking  on  the  body  prohibited  as  a  punishment,  1034. 
Master-at-arms,  acting,  refusing  to  receive  prisoners 

or  suffering  them  to  escape,  985. 
Medical  attendance;  sick  and  disabled  on  naval  vessels, 

995. 
Medical  officers;  distilled  spirits  on  vessels  to  be  under 

control  of,  989. 
Menaces,   provoking   or  reproachful;  use   of  toward 

other  persons  in  Navy,  984. 
Men  received  on  board;  entry  in  ship's  books,  995. 
Merchandise  received  on  board  for  freight,  sale  or 

traffic,  985,  986. 
Merchant  vessels,   convoying  of;  offenses  connected 

with,  985. 
Messages  from  enemy  or  rebel;  receiving,  or  failing  to 
report,  979. 
punishment  for  deUvering,  981. 
Minors;  penalty  for  unlawful  enlistment  of,  994. 
Misappropriating  money   or  property  intended   for 

naval  service,  990. 
Misprision — 

Failing  to  give  notice  of  deserters  to  superiors,  985. 
to  inform  commanding   officer    of  intended 
mutiny,  979. 
of  unlawful  intercourse  with  enemy,  979. 
to  use  efforts  to  bring  offenders  to  punishment, 
985. 
Money  of  the  United  States;  delivering  less  amount 
than  receipt  calls  for,  990. 
stealing,  embezzling,  misappropriating,  etc.,  990. 
Murder,  982. 
Muster;  falselj'  making  or  signing,  or  aiding,  abetting, 

directing,  or  procuring,  985. 
Mutinous  words,  uttering,  984. 
Mutiny,  mutinous  assembl}-,  etc.,  979. 
Naval  Reserve  Force  subject  to,  1446,  1447,  1451,  1511. 
Navy  yards  or  stations;  trading  at  for  private  benefit, 

989. 
Neglect  of  duty;  dismissal  mandatory  in  certain  cases, 

1287. 
Neghgence  during  batl-.e  or  when  preparing  for,  980. 

in  obeying  orders,  9S4. 
Negligently  stranding  or  hazarding  vessel,  or  running 

upon  rock  or  shoal,  985. 
Oath;  false  statements  under,  in   connection   with 

claims  against  United  States,  990. 
Offenses — 

not  specified,  how  charged,  1028. 


ARTICLES  FOR  THE  GOVERNl>IENT   OF  THE 

NAVY— Continued. 
Offenses — Continued . 

not  specified,  how  punished,  996-1002. 
on  shore,  against  inhabitants,  985. 
Officers  reduced  to  enlisted  rating,  988. 
Oppression  of  subordinates,  984. 
Orders;  disobeying,  of  superior  officer,  979. 

general,  issued  by  Secretary  of  the  Navy;  violating 

or  refusing  obedience  to,  985. 
importance  of  prompt  obedience  to,  980, 981. 
negligence  in  obeying,  984. 

during  battle  or  when  preparing  for,  980. 
Ordinary  seaman;  officer  reduced  to  rating  of,  988. 
Ordnance,  intended   for   naval   ser-\ace;  unlawfully 

selling,  stealing,  etc.,  990. 
Passenger  dying  on  naval  vessels;  effects  secured  for 
legal  representatives,  995. 
on  naval  vessels;  report  of  to  Secretary  of  the 
Navy,  995. 
Patriotism;  commanding  officers  to  show  example  of, 

978,  979. 
Pajonaster  to  secure  effects  of  deceased  persons  for 
legal  representatives,  995. 
sign  accounts  of  men  sent  from  ship  for  any  cause, 
995. 
Pay;  summary  court-martial  may  adjudge  loss  of, 

1007. 
Peace,  desertion  in  time  of,  or  attempting  to  desert. 

or  aiding  and  assisting  others,  9S5. 
Penitentiary;  imprisonment  in,  983,  984. 
Perjury  before  general  court-martial;  how  punished 
1021. 
in  connection  with  claims  against  United  States, 
990. 
Persons  amenable  to,  973-978. 

crew  of  lost  vessels,  until  discharge  from  service, 

996. 
discharged  or  dismissed  from  se^^^ce;   trial  after. 

991. 
enlisted  men  after  expiration  of  enlistment,  555, 

556. 
illegal  discharge  revoked;  jurisdiction  after,  1008. 
Petty  officers  may  be  tried  by  summary  courts-martial 
1006. 
punishments  inflicted  upon  by  commanding  offi- 
cer, 1002. 
Pledge,  receiving  United  States  property  as,  from 

unauthorized  person,  990. 
Plimdering  inhabitants  on  shore,  985. 
Police  duties,  extra;    summary  court  martial  may 

adjudge,  1007. 
Prisons,  civil;  offenders  may  be  sentenced  to,  98.3,  984. 
Prisoners;  acting  master-at-arms  refusing  to  receive, 
or  suffering  to  escape,  985. 
subject  to  discipline  of  institution  in  which  con- 
fined, 983,  984. 
Private  property;  deceased  persons;  secured  for  legal 
representatives,  995. 
importing  in  naval  vessels,  989. 
inhabitants  on  shore;  injuring  in  any  way,  985. 
Private  reprimand  by  commanding  officer,  1002. 
Prize:   maltreating  persons  on,  994. 
money;  list  of  persons  claiming,  994. 
removing  property  from,  994. 
Procuring  others  to  commit  frauds  upon  United  States, 
990,  991. 
the  making  or  signing  of  a  false  muster,  985. 
Profane  swearing,  984. 

Property  of  inhabitants  on  shore;  injuring  in  any  way, 
985. 


1574 


INDEX. 


ARTICLES  FOR  THE  GOVERNMENT   OF   THE 

NAVY— Continued. 
Provisions;    frequent  inspections  of  to  be  made  on 
vessels,  995. 
precautions  to  be  taken  for  preservation  of,  99o. 
wasting  or  permitting  same,  985. 
Provoking  words,  gestures,  or  menaces  toward  other 

persons  in  tlie  Navy,  984. 
Public  Healtli  Service  subject  to,  1491. 
Public  property;   buying  or  receiving  in  pledge  from 
one  without  authority,  990. 
delivering  less  amount  than  receipt  calls  for,  990. 
failing  to  prevent  destruction  of,  984. 
possession  or  custody  of;    offenses  committed  in 

connection  with,  990. 
stealing,  embezzling,  misappropriating,  unlawfully 

selling,  etc.,  990. 
unlawfully  destroying,  980. 
wasting  or  permitting  same,  985. 
Punishments — 

By  commander,  1002. 

to  be  entered  in  ship's  log,  1002. 
By  deck  courts,  1308. 
By  officer  temporarily  commanding,  1005. 
By  summary  courts-martial,  100<5,  1007,  1309. 
Fine  and  imprisonment,  990. 
General  courts-martial  may  inflict  same  as  sum- 
mary courts,  1010. 
Limitation  of.  in  time  of  peace,  1062-1064. 
On  vessels  restricted,  1002. 
Prohibited;  flogging,  branding,  etc.,  1034. 
To  be  adeciuate  for  nature  of  offense,  1034. 
Purchasing  property  of  United  States  from  unauthor- 
ized person,  990. 
Pusillanimously  crying  for  quarter,  980. 
Quarreling  with  other  persons  in  Navy,  984. 
Quarrels,  fomenting  between  other  persons  in  the 

Navy,  984. 
Quarter,  pusillanimously  crying  tor,  980. 
Rated  men;  complete  lists  of  to  be  furnished  Secretary 

of  the  Navy  by  vessels,  995. 
Rating — 

Incompetency;   summary  court  martial  may  dis- 
rate for,  1007. 
Of  men,  statement  of  must  accompany  on  transfer 

to  other  vessels,  995. 
Reduction  in  by  commanding  officer,  1002. 
by  summary  court-martial,  1006. 
Rebel;   intercourse  with;    punishment  for  unauthor- 
ized, 979. 
Receiving  merchandise  for  freight,  sale,  or  traffic  on 
naval  vessel,  985,  986. 
or  entertaining  deserters,  985. 
stolen  goods;  buying,  etc.,  property  of  the  United 
States  iUegally  sold,  990. 
Receipts;    delivering  less  property  or  money  than 
receipt  calls  for,  990. 
making  or  delivering  without  knowing  truth  of, 
990. 
Records  required  to  be  kept  by  commanding  officers 

of  vessels,  995,  996. 
Recruiting  officers  enlisting  prohibited  classes,  994. 
Reduction— 

In  rating  by  commanding  officer,  1002. 
by  summary  court-martial,  1006,  1007. 
,   01  officer  to  another  office,  988. 
to  enlisted  rating,  988. 

confirmation  of  sentence,  1045. 
Refusing  obedience  to  lawful  regulation  or  general 
order  of  Secretary  of  the  Navy,  985. 


ARTICLES  FOR  THE  GOVERNMENT  OF  THE 

NAVY— Continued. 
Refusing  or  failing  to  detect,  apprehend  and  bring  to 
punishment  all  offenders,  or  to  aid  all  persons 
for  that  purpose,  985. 
to  receive  prisoners;  acting  master  at  arms,  985. 
Regulations  of  Secretary  of  the  Navy;    violating  or 

refusing  obedience  to,  985. 
Repeated  offenses,  1003,  1004. 
Report  of  casualties  to  he  furnished  Secretary  of  Navy 

by  vessels,  995. 
Reprimand,  private,  by  commanding  officer,  1002. 
Reproachful   words,   gestures,    or   menances   toward 

other  persons  in  Navy,  984. 
Resignation,  acceptance  of  necessary  before  quitting 

duties,  989. 
Respect  due  commanding  officer;    combinations  to 

lessen,  984. 
Retired  officers  subject  to,  631. 
Rocks  or  shoals;  nmning  vessel  on,  980. 

through  negligence,  985. 
Scandalous  conduct  tending  to  the  destruction  of  good 
morals,  984,  986,  998,  1028. 
whether  disobedience  of  orders  constitutes,  980,  986. 
Secretary  of  the  Navy;  regulation  or  general  order  of; 
violating  or  refusing  obedience  to,  985. 
to  be  furnished  complete  list  of  persons  on  board 
vessels,  995. 
Seditious  words;  uttering,  984. 
Seducing    messages    from    enemy;     pimishment    for 

delivering,  981. 
Selling  property  intended  for  naval  service,   imlaw- 

fuUy,  990. 
Sending  or  accepting  challenge  to  fight  a  duel,  984. 
Setting  fire  to  puljlic  property  or  otherwise  unlawfully 

destroying,  980. 
Ship's  books;  entries  required  to  be  made  in,  995,  996, 
log;   punishments  inflicted  by  commander  to  be 
entered  in,  1002. 
Shoals  or  rocks;  running  vessel  on,  980. 

through  negligence,  985. 
Shore- 
Liberty;   deprivation  of,  by  commanding  officer, 
as  punishment,  1002. 
on  foreign  station,  deprivation  of  by  summary 
court  martial,  1006. 
Offenses  on,  against  inhabitants,  985. 
Sick  or  disabled  men;  separate  compartment  for  on 

naval  vessels,  995. 
Signatures;  forging  in  connection  with  claims  against 

United  States,  990. 
Signing  false  muster,  or  aiding,  abetting,  or  procuring, 

985. 
Silver,  gold,  or  jewels;  transporting  on  naval  vessel, 

985,  986. 
Sleeping  upon  watch,  979. 

Solitary  confinement  by  commanding  officer  as  punish- 
ment, 1002. 
summary  coiu-t-martial  may  adjudge,  1006. 
Spies,  981. 
Spirits,  distilled;  allowed  on  vessels  only  for  medical 

purposes,  989. 
Station  and  duty;  absence  from  without  leave  or  after 
expiration  of,  985. 
leaving  before  being  regularly  relieved,  979. 
Statute  of  limitations;  desertion  in  time  of  peace, 
1060-1062. 
general  offenses,  1057-1060. 
Stealing,  984. 

money  or  property  intended  for  naval  service,  990- 


1575 


INDEX. 


ARTICLES  FOR  THE  GOVERNMENT  OF  THE 

NAVY— Continued. 
Stores,  medical;  distilled  spirits  on  naval  vessels,  989. 
or  supplies;  dealing  in  for  private  benefit,  989. 
subsistence,  intended  for  naval  serWce;  unlawfully 
selling,  stealing,  etc.,  990. 
Stranding  vassel,  980. 

through  negligence,  985. 
Striking  flag  to  enemy,  980. 

other  persons  in  the  Navy,  984. 
superior  oilicer  while  in  execution  of  duties  of  his 
office,  979. 
Subordination;  commanding  officers  to  show  example 

of,  978,  979. 
Subsistence  stores;  intended  for  naval  service;  unlaw- 
fully selling,  stealing,  etc.,  990. 
Suffering  prisoners  to  escape;  acting  master  at  arms, 
98.5. 
vessel  to  be  stranded  or  run  upon  rocks  or  shoals  or 
improperly  hazarded,  980,  985. 
Summary  courts-martial — 

Pro\isions  relating  to,  1005-1010. 
Punishments,  1006,  1007,  1309. 
Sunday;  di\'ine  services  to  be  conducted  on,  979. 
Superior  officer — 

Contempt  or  disrespect  to,  while  in  execution  of 

his  duties,  984,  986. 
Definition  of,  980,  986. 
Disobeying  orders  of,  979. 
FaiUng  to  inform  of  intended  mutiny,  979. 
Striking,  assaulting,  etc.,  979. 
Supplies;  dealing  in  for  private  benefit,  989. 
Surgeon;  duties  relating  to  health  of  crew,  995. 

to  report  concerning  health  of  accused  sentenced 
by  simimary  court-martial,  1009. 
Suspension  from  duty  by  commanding  officer,  1002. 
Tattooing  prohibited  as  a  pimislmient,  1034. 
Text  of,  and  decisions  relating  to,  972-1064. 
Theft,  984. 
Threatening  to  strike  or  assault  superior  officer  while 

in  execution  of  his  duties,  979. 
Trading  for  private  benefit,  on  vessels  or  at  navy  yards 

or  stations,  989. 
Transportation  of  gold,  silver,  or  jewels,  985,  986. 

merchandise  for  freight,  sale,  or  traffic,  985,  986. 
Treating  superior   officer   with   contempt   while  in 

execution  of  his  duties,  984. 
Trust;  corrupting  person  to  betray,  981. 

deserting  or  betraying  in  time  of  war,  or  enticing 
or  aiding  others  to,  979. 
Uniting  with  mutiny  or  mutinous  assembly,  979. 
Using  provoking  or  reproachful  words,  gestures,  or 

menaces  toward  other  persons  in  Navy,  984. 
Uttering  seditious  or  mutinous  words,  984. 
A'essels — 

Articles  for  the  government  of  the  Navy  to  l)e 

displayed  on,  996. 
Complete  list  of  persons  on  board  to  be  furnished 

Secretary  of  Navy,  995. 
Importing  dutiable  goods  in,  989. 
Injury  to,  or  equipment,  so  as  to  hazard  safety  of, 

or  endanger  crew,  980. 
Log;  pmiishments  infUcted  by  commander  to  be 

entered  in,  1002. 
Men  transferred  to;  accounts  must  accompany, 

995. 
Pas.sengers  on,  995. 

Punishments  on.  by  acting  commanding  officer, 
1005. 
by  commanding  officer,  1002. 
restricted,  1002. 


ARTICLES   FOB  THE  GOVERNMENT  OF  THE 

NAVY-Continued. 
V^essels — Continued. 

Receiving  merchandise  on  board  for  freight,  sale, 

or  traffic,  985,  986. 
Records  required  to  be  kept  by,  995,  996. 
Separate  compartment  for  treatment  of  sick  or 

disabled,  995. 
Stranding,  hazarding,  or  running  upon  rocks  or 

shoals,  through  negligence,  985. 
SulTermg  to  be  stranded  or  nm  upon  rocks  or 

shoals,  or  improperly  hazarded,  980. 
Trading  on,  for  private  benefit,  989. 
Transporting  merchandise,  gold,  silver,  or  jewels 

on,  985,  986. 
Wrecked  or  lost;  court-martial  or  court  of  inquiry 
to  investigate,  996. 
status  of  crew;  authority  of  officers,  996. 
Violating  lawful  regulation  or  general  order  of  the 

Secretary  of  the  Navy,  985. 
^'i^tue;  commanding  officer's  example  of,  978. 
War;  alhes;  faihng  to  assist  vessels  of,  980. 

corrupting  person  in  Navy  to  betray  his  trust,  981. 
deUvering  message  from  enemy,  981. 
deserters  during;  penalty  for  enlistment  of,  994. 
deserting  or  betraying  trust  during,  or  aiding  or 

enticing  others  to,  979. 
desertion  in  time  of,  979. 
enticing  others  to  desert  in  time  of,  979. 
failing  to  encourage  inferior  officers  and  men  to 
fight,  980. 
to  seek  encounter  or  to  assist  other  vessels  dur- 
ing battle,  980. 
giving  intelligence  to,   or  communicating  with, 

enemy  or  rebel,  979. 
neglecting  to  join  on  signal  for  battle,  980. 

to  prepare  for  action,  whenenemyin  sight, 980. 
negUgencein  obeying  orders  during  battle  or  when 

preparing  for,  980. 
spies,  pimishment  of,  981. 
time  of,  construed,  981. 

yielding  or  cowardly  conduct  during  battle,  980. 
Warrant  officers;  punishments  inflicted  upon  by  com- 
manding oflicers,  1002. 
Wasting  ammunition,  provisions,  or  other  property, 

or  permitting  same,  985. 
Watch,  sleeping  upon,  979. 
When  on  shore  plundering,  abusing,  or  maltreating 

inhabitants,  or  injuring  their  property,  985. 
Words,  mutinous  or  seditious;  punishment  for  utter- 
ing, 984. 
provoking  or  reproachful,  use  of  toward   other 
persons  in  the  Navy,  984. 
Wreck  or  loss  of  vessels;  authority  of  officers  over  crew 
after,  996. 
ARTICLES  OF  WAR: 

See  Army;    Articles  for  the  Government  of  the  Navij: 

Courts-martial;  Marine  Corps. 
Command  when  different  corps  of  Army  happen  to 

join:  Marine  officers,  etc.,  1544,  1545. 
Deserters  from  Navy  or  Marine  Corps;  punishment  for 

retaining  in  Army,  1544. 
Enlisted  men  transferred  from  Army  to  Navy  or  Ma- 
rine Corps,  555. 
General  provisions,  442-444, 1544, 1545. 
Marine  Corps;  officers  may  serve  on  Army  courts-mar- 
tial, 1544. 
subject  to,  960,  961. 

when  detached  for  service  with  Army,  1544. 
Naval  personnel  not  subject  to,  except  in  special  in- 
stances, 442,  443. 


1576 


INDEX. 


ARTICLES  OF  WAR— Continued. 

Naval  personnel  not  '■ubject  to,  except  as  specifically 

provided,  1544. 
Navy  medical  personnel  serving  with  Army,  subject 

to,  1421. 
Offenses  against,  punishable  by  naval  courts-martial, 

1544. 
Persons  subject  to,  1544. 
ARTIFICIAL  LIMBS: 

Allowance  of,  to  disabled  personnel,  1156,  1157,  1181, 
1217. 
ARTS: 

Commission  of  Fine  Arts;  duties,  1559,  1560. 
ASSASSINATION: 

Mailing  matter  tending  to  incite,  1340,  1341. 
ASSAULT: 

Attempting  or  threatening  to  commit;  punishment 

for.  Navy,  979. 
Intent  to  commit  any  felony,  1349. 

rape,  1349. 
Mail  custodian,  oflense  against,  1339. 
Maiming,  etc.,  1350. 
Postal  cleric,  oflense  against,  1338. 
Pimishment  for  assaulting  other  persons  in  Navy,  984. 
superior  officer,  Navy,  979. 
ASSAULT  AND  BATTERY: 
Definition  of,  981. 

Striking  other  persons  in  Navy,  984. 
ASSEMBLY: 

Mutinous;  punishment  for,  Navy,  979. 
ASSIGNMENT: 

Claims  against  United  States,  1093. 
Contracts  with  United  States,  1117. 
Retirement  annuities,  etc.,  civil  employees,  1543. 
Wages,  naval  service,  573,  892. 
ASSIMILATED  RANK: 

Warrant  officers,  704. 
ASSISTANTS: 

See  Chiefs  of  bureaus;  Navy  mail  clerks. 
Authority  to  act  for  head  of  department,  194,  422. 
Chief  of  Naval  Operations,  1418. 

Chiefs  of  bureaus,  362,  466,  1222,  1224,  1261,  1280,  1284, 
1418. 
authority  of,  213-214. 
'   pay  of,  371,  372. 
status  and  powers  of,  377. 
Civil  engineers,  appointment,  531. 
pay,  803. 
rank,  1428,  1474. 
Construed  to  mean  only  statutory  assistant,  213. 
Dental  surgeons,  appointment,  etc.,  1421. 
Heads  of  departments,  authority  of,  213. 
Judge  Advocate,  223. 
Judge  Advocate  General,  1418. 
Messengers,  205,  209. 
Naval  constnictors,  506. 

appointment,  506,  1408,  1428. 
pay,  793,  802. 
promotion,  1266. 
rank,  677,  1266,  1427,  1428. 
Paymasters,  appointment,  469,  470,  1407. 
bonds,  474. 

commanding  officer  not  required  to  act  as,  574. 
defined,  497. 
pay,  793,  802. 

promoted  to  passed  assistant  paymasters,  471 . 
rank,  676. 
Secretary  of  the  Navy,  appointment,  1204. 
duties,  1217. 
general  provisions  relating  to,  333,  334. 


ASSISTANTS— Continued. 

Secretary  of  the  Navy,  Supreme  Court  reports  and 

digests  furnished  to,  i;565. 
Surgeons;  appointment,  461-464,  1427. 

detail  as  assistant  to  Bureau  of  Medicine  and  Sur- 
gery, 466. 
pay,  793,  802. 
precedence;  not  disturbed  by  act  of  August  29, 

1916;  1480,  1481. 
promotion  464,  12.51. 

rank  and  precedence,  673,  1273,  1426,  1480,  1481. 
ASSOCIATIONS: 

Membership  fees  and  expenses  of  pubUc  officers;  re- 
strictions on,  1371. 
ASYLUMS: 

General  provisions  relating  to,  1159-1163. 
Naval;  estabUshment  of  authorized,  11.59,  1160. 
ATLANTA: 

Penitentiary;  products  used  by  naval  forces,  1519,  1520. 
ATTACHMENT: 

Retirement  annuities,  etc.,  civil  employees,  1.543. 
Wages  of  enlisted  men,  573,  574. 
ATTAINDER: 

Bills  of,  defined,  73. 

forfeiture  of  citizenship  rights  by  desertion,  1078. 
ATTEMPTS: 

See  Articles  for  the  government  of  the  Navy;    Crimes. 
To  defraud,  investigation  of,  217. 
ATTEST: 

Powers  of  attorney;  assignment  of  wages;  duties  of 
commanding  officer,  573,  892. 
ATTORNEY: 
See  Counsel. 
Assisting  deserters,  790. 
Contracts;  parties  submitting  bids  may  have  attorneys 

present  at  opening,  1110. 
Court  of  inquiry  proceedings;  right  of  party  under  in- 
vestigation, 1056. 
Fees  not  to  be  deducted  by  accounting  officers,  naval 

cases,  1272. 
Notaries  public  appearing  before  executive  depart- 
ments, 1295. 
Practicing  before  departments;  advertising  by,  1411. 
Prosecuting  claims,  procuring  contracts,  etc.;  pubUc 

officers  not  to  act  as,  1332,  1333. 
PubUc  officers  accepting  fee  as,  before  courts-martial, 

departments,  etc.,  1.333. 
Records  not  furnished  to,  for  use  in  court,  356. 
ATTORNEY  GENERAL: 
See  DepartmeTit  of  Justice. 
Argument  of  cases  in  courts,  322. 
Coimsel  furnished  to  departments  investigating  claims' 

220. 
Court  decisions  binding  on  until  reversed,  320. 
Court  of  Claims  cases;  departments  must  furnish  in- 
formation to,  220. 
District  attorneys  and  marshals  supervised  by,  SZi. 
General  provisions  relating  to,  281-326. 

supervision  of  litigation  involving  the   Govern- 
ment, 281. 
Jurisdiction  with  relation  to  accounting  officers,  311- 

320. 
Navy  Department  to  be  furnished  legal  advice  by,  321. 
Opinions;  accounting  officers  bound  by,  318. 
constitutionahty  of  statutes,  321. 
decisions  relating  to,  29.5-321. 
foreign  law;  will  not  construe,  299. 
form  of  request  for,  307-309. 
heads  of  departments  requiring,  295. 
hypothetical  questions,  299-301. 


1577 


INDEX. 


ATTORNEY  GENERAL— Continued. 

Opinions ;  Judge  Advocate   (ieneral's   opinion  must 
accompany  requests  for,  309,  321. 
judicial  (|uestions;  will  not  answer,  306. 
jurisdiction  doubtful,  will  answer  question,  321. 
Members  of  Congress  desiring,  281,  303. 
naval  officer  desiring,  as  to  acceptance  of  civil 

appointment,  oSO. 
obiter  dicta,  311. 
President  rcciuiring,  282. 
publication  of,  326. 

question  must  arise  in  administration  of  depart- 
ment, 299-307. 
question  must  be  one  of  law,  296-299. 
reasons  for  declining  to  answer  certain  questions 

320,  321. 
subordinates  to  render  for  officers  of  departments, 

323. 
title  to  lands  purchased  by  United  States,  282. 
weight  of,  310,  311,  322. 
who  may  request,  295,  296. 
will  not  review  decisions  of  departments,  302. 
President  may  require  opinion  of,  S3. 
Supreme  Court  reports  and  digests  distributed  by,1365. 
AUCTION: 

Sale  of  old  naval  material,  1190, 1204. 
AUDITORS: 

See  A  ccounting  officers. 
AUSTRI.'V-HUNGARY: 

Termination  of  war  with;  date  fixed  for  certain  pur- 
poses, 1557-1559. 
AUTHENTICATION: 

Records  desired  for  use  in  court,  426,  427. 
State  laws  and  records,  429,  430. 
AUTHORIZED: 

Construed  as  mandatory,  1203. 
AUTHORIZED  ENLISTED  STRENGTH: 

Apprentices  additional  to  authorized  number,  536, 

1248,  1249,  1478. 
Daily  average,  537, 1396. 
Deficiencies  may  be  supplied  by  reservists  on  active 

duty,  1548,  1549. 
Definition  of,  537,  1478. 
Hospital  corps  additional  to,  1419. 
Increased  during  national  emergency,  1463,  1528. 
Marine  Corps,  919,  920,  1416,  1548. 
distribution  in  grades,  1463. 
number  authorized  by  personnel  act,  1271. 
permanently  authorized,  1548. 
Men  detailed  to  nautical  school  in  Philippines,  addi- 
tional to,  1297,  1298. 
furloughed  without  pay  additional  to,  1436. 
sentenced  to  discharge  not  included,      536,      1423, 
1463,  1478. 
Naval  Flying  Corps  additional  to,  1437. 
Navy,  534-539,  1478,  1511. 

general  provisions  relating  to,  534-539. 
Number  of  line  officers  based  on  total,  1549. 
Permanent  number  not  affected  by  act  of  July  11, 1919, 
1528. 
strength  not  reduced  by  act  of  June  4,  1920,  1549. 
Reservists  on  active  duty  counted  as  part  of,  1548,  1549. 
Total  authorized  enlisted  strength,  definition  of,  537. 
AUTOMOBILES: 

See  Vehicles. 
AUTOPSIES: 

.\uthority  of  naval  medical  officers  to  perform,  460,  461. 
AUXILIARY: 

Reserve,  Naval  Reserve  Force,  1452,  1453. 
Service,  active  duty,  naval  reserve  officers,  authorized 
in,  1549. 


AUXI  LI  ARY— Continued . 

Vessels;  officers  and  men  of  must  belong  to  Naval  Re- 
serve Force,  1448. 
AVERAGE: 

Authorized  number  of  enlisted  men,  537, 1396. 
AVIATION: 

Active  duty  authorized  of  reserve  officers  in,  1.549. 

Advisory  committee   for  aeronautics;   appointment, 
duties,  etc.,  1402. 

Allowances  not  increased  for,  1513. 

Claims  for  damages  caused  by  naval  aircraft:  settle- 
ment of;  reports,  1545. 

Coast  Guard  personnel  instructed  at  Navy  schools,  1456 

Detail  of  officers  and  enlisted  men  for,  1437-1440. 

Jurisdiction  of  Army  and  Navy  defined,  1554. 

Naval  Flying  Corps,  1437-1441. 

Pay,  817,  818,  865,  1403,  1404. 

Promotion   of  officers  commissioned   for  aeronautic 
duties  only,  1439. 
AWNINGS: 

Estimates  and  appropriations  for.  Navy,  1103. 
BAD-CONDUCT   DISCHARGE: 

Civilian  clothing  furnished,  1107. 

Illegal;  sentence  set  aside  by  Secretary  of  the  Navy, 
1008,  1009. 

Not  to  be  executed  in  foreign  coimtry,  1006. 

Summary  court-martial  may  adjudge,  1006. 

War  risk  compensation  excluded  by,  1500. 
BADGES: 

Military  societies;  wearing  of  by  naval  personnel,  1216, 
1224,  1273,  1280,  1299. 

Naval  Reserve  Force;  unauthorized  wearing  of,  1447. 
BAIL: 

Arrest  of  naval  officer  while  out  on,  1026. 

Court-martial  jurisdiction  over  man  released  on,  63,  64. 
BANDS: 

See  Marine  Band;  Naval  Academy. 

Marine  Band  not  to  compete  with  civilians,  1463,  1464. 

Navy,  not  to  compete  with  civilians,  1304,  1411,  1412. 
BANKS: 

Depositing  public  money  in,  contrary  to  law,  prohib- 
ited, 1098. 
BASE  PAY: 

Definition  of,  848,  849,  865. 
BATTALION: 

Separate  or  detached;  commanding  officer  of  may  con- 
vene summary  courts-martial,  1441. 
BATTLE: 

See  Articles  for  the  government  of  the  Navy:  War. 

Advancement  of  officers  for  conduct  in,  453,  454,  734- 
736,  921,  933,  1289. 

Cowardly  conduct  during;  punishment.  Navy,  980. 

Desertion  during,  9S0. 

Distinguished  conduct,  enlisted  men  during;  reward. 
512,  1275. 
medals  of  honor,  512,  1402, 1.521-1523. 

Highly  distinguished  conduct  in  conflict  with  enemy; 
thanks  of  of  Congress  for,  736. 

Memorial  to  officers  who  rendered  highly  distinguished 
service,  1314,  1315, 1559. 
BATTLESHIPS: 

See  Vessels  of  the  Navy. 

Naming  of,  1261,  1262. 

State  interference  with,  49. 
BELLIGERENTS: 

Property  of,  38. 
BENEFITS: 

Defined;  includes  retirement  for  disability,  602. 
BETRAYING  TRUST: 

In  time  of  war,  or  enticing  others  to,  979. 


1578 


INDEX. 


BETRAYING   TRUST— Continued. 

Punishment   for  endeavoring   to  corrupt  person  in 
Navy,  981. 
BEYOND  SEAS: 

See  Foreign  shore  duty. 
Definition  of;  foreign  shore  duty  pay,  1275. 
Pay  for  shore  duty,  officers.  Navy,  818-821,  1302. 
Shore  duty,  naval  officers  under  personnel  act,  1267. 
BIDS: 

See  Contracts. 

Sale  of  naval  vessels;  deposit  to  accompany,  1192. 
BIENNIAL  REGISTER: 

Data  to  be  furnished  for,  228,  1235,  1236. 
BIGAMY: 

Punishment  for,  1354. 
BILL: 

See  Injunction. 

Of  attainder;  definition,  73. 

Forfeiture  of  citizenship  rights,  1078. 
Of  exchange,  premium  on  sales  of,  credited  to  "Pay, 

miscellaneous,"  1222. 
Of  health,  estimates  and  appropriations  for.  Navy, 

1103. 
Of  rights,  accused,  waiver  of  protection,  121, 122. 
constitutional  amendments  establishing,  116. 
BINDING: 

See  Printing  and  binding. 
BLACKSMITH: 

Ratings  established  in  Navy,  1494,  1495. 
BLANK  BOOKS: 

Work  to  be  done  at  Government  Printing  Office,  1525. 
BLANKS: 

Public  Printer  to  furnish  to  departments,  1278. 
BLUE  BOOK: 

Data  required  for  biennial  register  of  employees,  228, 

1235, 1236. 
Printing  and  distribution  of,  1235, 1236. 
BOARDS: 

See  Examinations;  Examining  boards;  Retiring  boards. 
Academic  board.  Naval  Academy,  751,  753,  754. 
Advisory,  to  assist  appointing  power,  95. 
Army,  marine  serving  with;  jurisdiction  to  review,  961. 
Expenses  of  commissions  and  inquiries  not  to  be  paid 

without  special  appropriation,  1105. 
Foreign  hydrographic  surveys  to  be  pubUshed  only 

after  report  of,  1106,  1237. 
Illegally  constituted;  retiring,  971. 
Inquiry,  Naval  Acadamy;  investigation  of  midship- 
men, 1286. 
Inspection  and  survey  of  naval  vessels,  1190. 
Interdepartmental  social  hygiene;  creation  of,  etc., 

1517,  1518. 
Investigation,  oaths  administered  to  witnesses,  217. 
Irregularities  not  goverened  by  rules  applicable  to 

courts,  69. 
Jurisdiction  of  courts  over  proceedings,  examining 

board,  728. 
Labor  employment,  navy  yards;  mandamus  proceed- 
ings against,  780. 
Majority  vote,  board  of  visitors,  as  to  details  to  Naval 
Observatory,  1276. 
naval  examining  Ijoard,  721. 
two-thirds  required  for  promotion  by  selection, 
1432. 
Medical — 

Appointments  as  acting  ensigns,  1435. 

in  Naval  Reserve  Force,  1445. 
Convened  on  foreign  stations,  707,  1472. 
Naval  surgeons,  defined;  means  medical  officers, 
463. 


BO  ARDS— Continued . 
Medical— Continued. 

Naval  surgeons;  examinations  for  promotion,  707- 
710. 
number  of  members,  70S. 
President's  action  on,  72.5-728. 
retirement  of  officer  not  recommended  for  pro- 
motion by,  594. 
Secretary  of  the  Na^T  may  act  for  President, 
1481,  1482. 
Promotion,  acting  ensigns  to  lieutenant  (junior 
grade),  1436. 
Naval  Reserve  Force,  1445. 
Secretary  of  the  Navy  may  act  on,  for  Presi- 
dent, 1481, 1482. 
Survey;  transportation  of  enlisted  men  discharged, 
875,  1274,  1275. 
More  than  one  officer  required  to  constitute,  708. 
Naval  engineers;  to  report  upon  use  of  patented  arti- 
cles, 776. 
Plucking  board  for  retirement  of  naval  officers,  1266. 
Precedence  of  line  and  start  members,  704. 
President's  action,  .596,  616,  725-728,  1481,  1482. 

revocation  of,  619,  630,  734. 
Promotion;  physical  examination,  707-710. 
Quasi  judicial,  596. 

Reconsideration  of  action  on  own  initiative,  621. 
Repairs  to  vessels,  reports  by,  776,  777. 
Retiring;  Judge  .\dvocating  General's  duties  relating 
to,  1186,  1187. 
Marine  Corps,  963,  964. 
Navy,  598-617. 
Revocation  of  President's  action  on,  619,  630,  734. 
Samples  of  tobacco  for  Navy  examined  by,  1250. 
Secretary  of  the  Navy  to  convene;  examination  for 
assistant  paymaster,  470. 
for  report  concerning  foreign  hydrographic    sur- 
veys, 1106,  1237. 
for  selection  of  officers  for  promotion,  1430,  1431 , 
Selection  for  promotion,  1430-14.33. 
President's  action  on,  1433. 
records  of  officers  examined  by,  722,  723. 
Supervisory:  examinations  for  promotion,  724. 
Survey;  precedence  of  line  and  staff  members,  704. 

value  of  enemy  vessels  seized,  1477. 
Unauthorized;  expenses  of  not  payable,  1316. 
Visitors,  Naval  Academy,  1197, 1458. 
Naval  Observatory,  1276. 
BOATSWAINS: 

See  Warrant  officers. 
BOILERS: 

Steam;  purchase  of  for  Navy,  1182, 1183. 
BONA  FIDE: 

Home  or  residence;  definition,  876. 
BONDS: 

Acknowledgment,  483. 
Acting  disbursing  clerks,  1315, 1316. 
Alteration  of,  484. 

Amount;  biennial  examination  into  sufficiency  of,  486, 
1247. 
duties  of  officer  empowered  to  fix,  1247. 
may  be  increased  by  President,  1098. 
Navy  mail  clerks  and  assistants,  1387, 1388. 
officers  of  Supply  Corps,  474. 
Secretary  of  the  Navy  to  fix;  civilian  storekeepers, 
533. 
Approval,  486-487. 

duties  of  officer  having  power  of,  1247. 
naval  officers'  pay  commences  on  date  of,  829. 
Certificate  of  sufficiency,  483. 


54641°— 22- 


-100 


1579 


INDEX. 


BONDS- Continued. 

Civilian  storekeepers  required  to  give,  533. 
Condition  of,  4S7-l<JO. 
Conflict  oflaws,  490-491. 
Construction  of,  490,  491. 

Contractors;  certified  check  accepted  in  lieu  of,  1298. 
copartners  not  received  as  sureties  for  each  other, 

1114. 
copies  of,  furnished  laborers  and  material  men  on 

public  works,  1227,  1228. 
defaulters  in  previous  contracts  not  received  as 

sureties,  1114. 
not  received  as  sureties  for  each  other,  11 M. 
principal  or  surety  defaulting;  subsequent  bids  re- 
jected, 1114. 
protection  of  laborers  and  material  men,  1227, 122S. 
required  to  furnish,  1112. 

suit  against  siu-eties  for  liquidated  damages,  1113. 
Copies  of  for  use  in  suits,  427,  428, 1227, 1228. 
Date,  4.S0. 

from  which  takes  effect,  211,  480,  481. 
IMsbursing — 
Clerks,  209. 

applicable  to  temporary  substitutes,  131.5, 1316_ 
deputy,  premium  chargeable  on,  211. 
Officers:  delinquency,  notice  to  sureties,  time  for 
bringing  suit,  1199. 
Duplicate  checks  issued;  sureties  required,  1098,    1099. 
E.xamination,  biennial,  of  ofTicial,  486,  1247. 
E.xpense  of  furnishing  not  chargeable  to  Government, 

211,495. 
E.xpiration  of  office;  pending  appointment  of  successor, 

1247. 
Forgery  of,  1322. 
Form,  481-484. 

departure  from  statutory  requirements,  48-3-484. 
General  provisions  relating  to,  474-496. 
Head  of  department  may  demand  without  statutory 

authority,  211,476,  477. 
Intention  of  parties,  481. 
Liability  of— 

Officer;  insurer  of  funds,  487. 
Principal  and  sureties  continues  until  appointment 
of.successor,  1247. 
not  affected  by  neglect  of  other  officers,  1247. 
Liberty  or  other  United  States  bonds  accepted  in  lieu 

of  sureties,  1523,  1.524. 
Married  women  as  sureties,  484,  485. 
Misrepresentation;  sureties  induced  to  execute,  485. 
Names  of  parties,  482,  483. 
Naval  officers  disbursing  public  moneys,  1095. 
Navy  mail  clerks  and  assistants,  1306,  1387,  1388. 
Necessity  of  furnishing  before  entering  upon  duty,  477- 

480. 
New — 

Appointment;  effect  of,  496. 
Effect  of  failure  to  furnish,  496. 

of  giving,  on  liability  of  sureties,  493,  494. 
Officer  giving,  not  entitled  to  receive  old  bond,  495. 
Required  in  Supply  Corps,  496. 
Officer's  term  expired;  successor  not  appointed,  1247. 
Panama  Railroad,  1.368. 
Parties  jointly  and  severally  bound,  483. 
Pay  of  officer  commences  on  approval  of,  naval  service, 
829. 
prior  to  furnishing,  disbursing  officer,  211,  478-480, 
829. 
Premium;  amoimt  chargeable  by  surety  companies  re- 
stricted, 13.55. 
not  to  be  paid  by  United  States,  1355. 
rate  chargeable,  211,  495,  496. 


BONDS— Continued . 

Property  loaned  to  military  schools;  Secretary  of  Navy 

to  require  bond  for,  1277. 
Public  moneys;  definition  of,  492,  493. 
Regulations  can  not  change  officer's  liability  under,  211. 
Renewal  of,  486,  1247. 
Retroactive,  481. 

Sale  of  naval  vessels;  parties  bidding  mast  furnish,  1 IS2. 
Seal  omitted;  elTect  of,  482. 

re(iuired,  481,482. 
Special  agents  for  disbursement  of  public  moneys,  1095. 
Storekeepers  on  foreign  stations;  naval  officers  detailed 

as,  579. 
Strictissimi  juris;  lialiility  of  sureties,  491. 
Sufficiency  of  sureties:  biennial  examination  into,  1247. 
Suit— 

.Vgainst  delinciuent  officer  and  sureties,  1072. 

Statute  of  limitations,  1199. 
Supply  Corps,  474-496. 

new  commissions  not  to  affect,  681. 
Sureties,  484. 

companies  acting  as,  485,  486, 1228-1230,  1355. 

discharge  of,  494,  495. 

liability  of,  491-495. 

delinquent  officer  retained  in  office,  494. 

Liberty  or  other  United  States  bonds  accepted  in 
lieu  of,  1523,  1524. 

married  women,  484,  485. 

release  of,  495. 

sufficiency  of ;  biennial  examination,  1247. 

suit  against  delinquent  officer,  1072. 
Surety  companies  accepted;  provisions  relating  to,  485, 
486,  1228-12.30. 

premium  chargeable  by,  1355. 
Temporary  appointment,  483. 

United  States;  accepted  in  lieu  of  sureties,  1.52:<,  1524. 
Voluntary,  211,  476. 
Witnesses,  483. 

Who  are  required  to  give,  475-477. 
BONUS: 

Payment  of  $60  on  discharge,  877,  878. 

BOOK  OF  ESTIMATES: 

See  Estimates. 

BOOKS: 

See  Ephcmeris  and  Nautical  Almanac;  NaiUical  Alma- 
nac; Naval  Observatory;  Navy  Register;  Observations; 
OfflciaJ  Register;  Printing  andbinding;  Statutesaf  Large. 

Blank;  work  to  be  done  at  Government  Printing 
Office,  1525. 

Compliments  of  officers  not  to  accompany  distribution 
of  publications,  1236. 

Departmental  publications  furnished  Library  of  Con- 
gress, 1273,  1274. 
transferred  to  Library  of  Congress  or  District  of 
Columbia  public  library,  1280. 

Destroying,  removing,  stealing,  or  attempting  to  do  so, 
1:335, 1330. 

Distribution— 

By  executive  departments,  1239. 

Of  departmental  publications,  1384,  1385. 

Estimates  and  appropriations  for.  Navy,  1103. 

Exchange  of  documents  and,  1239. 

Gifts  to  naval  vessels;  acceptance  and  care  of,  1305. 

Government  publications,  ownership  of,  1236. 

Hydrographic  Office  publications;  preparation  and 
sale  of,  1236,  1237, 1543. 

Illustrations  in;  restrictions  on,  1284. 

Libraries  of  departments.  Naval  Academy,  etc.,  to  be 
furnished  Government  publications,  1240. 

Nautical  Almanac,  393. 


1580 


INDEX. 


BOOKS— Continued. 

Xautical;  prepared  and  sold  by  Hydrographic   Office, 

390. 
Navy  Regulations;  copy  to  be  furnished  officers,  7S7. 
Obscene;  importing  or  transporting,  1347. 
Official  use;  delivered  to  successors,  12.36. 
Report  to  Congress  of  cost,  distribution,  etc.,  of  de- 
partmental publications,  1556. 
Required  in  duplicating  processes;  Public  Printer  to 

furnish  to  departments,  1278. 
Restrictions  on  departmental  publications,  1284. 
purchase  of,  1073. 

law  books,  books  of  reference,  etc.,  1261. 
Secretary  of  the  Navy  custodian  of,  352. 
Secret  codes,  etc.;  negligently  permitting  same  to  be 

removed,  etc.,  1483. 
Supreme  Court  reports;  distribution  of,  1365. 
Titles  of  documents  ordered  printed  by  Congress,  1300. 
BOUNTY: 

-Assignment  of,  by  enlisted  men,  573. 
Clothing,  enlisted  men.  Navy,  876,  877,  1203. 

on  second  enlistment,  1403. 
Enlistment;  refund  of,  on  discharge,  1292,  1294,  1298. 
Lands,  supervision  of,  395. 

Sinking  of  enemy  vessels;  laws  granting,  repealed,  1268. 
BOXER  UPRISING: 

Held  to  be  a  time  of  war,  981. 
BOXES: 

Estimates  and  appropriations  for,  Navy,  1 103. 
BOYS: 

Enlistment  of,  in  the  Navy,  534. 
"BRANCH:" 

Not  synonymous  with  "department,"  192. 
BRANDING: 

Prohibited  in  the  Navy,  1034. 
BRAZIL: 

Naval  officers  appointed  to  office  in;  leave  of  absence, 
etc.,  1399. 
BREAD: 

Baked  for  Navy  under  contract,  1115. 
BREAD  AND  WATER: 

Confinement  on,  may  be  adjudged  by  summary  com-t- 

martial,  1006. 
Solitary  confinement  on,  inflicted  by  commanding 
officer  as  punishment,  1002. 
BREAKING  AND  ENTERING: 

Compartment  of  vessel,  etc.,  used  by  mail  service,  1.338. 
Post  office,  1338. 

Vessels ;  punishment  for,  1352, 1353. 
BREVETS: 

Marine  Corps,  931-933. 
BRIBERY: 

Judges,  jurors,  witnesses,  etc.,  1336. 
United  States  officer,  1325,  1326,  1334. 
BRIGADE: 

Commanding  officer  may  convene  summary  courts- 
martial,  1441. 
general  court-martial,  1442. 
Marine  Corps,  936. 

Philippine  Islands;  status  and  discipline  of,  955. 
BRIGADIER  GENERALS: 

Additional  number  officers  promoted  to  grade  of,  1459. 
Appointment  of,  1459. 

line;  permanent  staff  officers  not  eligible,  1460. 
Commodores  rank  with,  662. 
Number  of,  Marine  Corps,  1458. 
Rank  with  relation  to  rear  admirals  of  the  lower  half, 

66.5-667,  1501. 
Senior  staff  officers.  Marine  Corps,  to  have  rank,  pay, 
and  allowances  of,  1460. 


BUILDINGS: 

See  A  ppropriations;  Contracts;  Navy    BuiUing:  Public 

'properly. 
Condemnation  ofland  for,  1199,  1490,  1491. 
Construction  of;  disbursing  agents,  201. 
Contract    not    to     overobligate    appropriation     for 

erection  or  repair,  1116, 1331. 
Contractors  to  give  bond  for  protection  of  laborers  and 

material  men,  1227, 1228. 
Defined,  285. 

District  of  Columbia;  Government-owned;  reports  to 
Congress  concerning,  1553. 
laws  applicaljle  within,  332. 
Draping  in  mourning,  prohibited,  1220. 
Estimates  of  appropriations  required  for,  1102. 
Foreign  country;  erection  by  United  States,  280. 
Land  for;  condemnation  proceedings,  1199,  1490,  1491. 
leased  by  Navy;  improvements  to  become  property 

of lessor,  1508. 
not  to  be  purchased  without  a  specific  law  autlior- 

izing,  1117. 
rented  by  United  States,  285. 
Naval  hospitals;  purchase  and  erection  of,  1159,  llfiO. 
Navy   Department;  supervision  of,  Potomac  Park, 

1502,  1503. 
Plans  to  accompany  estimates  submitted  to  Congres.s, 

1102. 
Public  building  commission  to  control  office  space  in 

District  of  Columbia,  1-524, 1525. 
Rented — 

Annual  report  to  Congress  in  estimates,  1191. 
District  of  Columbia:  others  may  be  rented  instead 
of  ones  occupied,  1187. 
reports  concerning,  1218,  1:591,  1.543. 
specific  appropriation  required,  1181,  1182. 
Restrictions  on  erection  of,  etc.,  1116. 
Sale  of  by  executive  departments,  1516. 
Site  for  not  to  be  purchased  without  specific  appropri- 
ation, 1116. 
Temporary;  held  not  "public  building,"'  2s0. 
Title  to  and  jurisdiction  over  lands  purchased  for,  282. 
Transfer  to  Public  Health  Service,  1526,  1.5.59. 
BULLETINS: 

Pubhcation  of  by  Hydrographic  Office;  numlier  of 
copies,  12.38. 
BUNTING: 

Purchase  without  advertising,  1113, 1115. 
BURDEN  OF  PROOF: 

Candidate  under  examination  for  promotion,  720, 
Line  of  duty  cases,  612. 
BUREAU  OF  EFFICIENCY: 

-  Assistance  to  be  furnished  to,  1469, 1470. 
BUREAUS: 

See  Chief  Constructor;  Chief  of  Naval  O perations;  Chiefs 
of  Bureaus;  Engineer  in  Chief;  Judge  Advorale  General; 
Paymaster  General;  Surgeon  General. 
Appropriations — 

Accounts  to  show  expenditures  under  each.  1 102, 

1103. 
To  be  kept  separate  in  Treasury,  1 104. 
Transferred  for  expenditure  by  bureau  procuring 
suppUes  or  services,  1409,  1.5.36. 
Attorney  General  may  require  information  from  in 

Court  of  Claims  cases,  221. 
Chief  clerks,  duties  of,  209. 

to  administer  oaths  of  office,  1215. 
Consolidatioh  of  two  under  one  chief,  379. 
Construction  and  Repair;  appointment  of  chief,  37S. 
assistant,  1418. 
model  tank  for  vessels  under  jurisdiction  of,  1250. 


1581 


IXDEX. 


BIREAUS-Continucd. 

Contingent  funds;  annual  report  of  expenditures  from, 
22'>. 

restrictions  on  use  of;  written  order  re(|uired,  llO.'i. 
Creation  of,  statutory  authority  required,  359. 
Kngineering;  appointment  of  chief,  379. 

assistant  to  chief,  12S4. 

name  of  Sfeam  Knpineering  changed  to,  l.')4S. 
Kquipment;  appointment  of  chief,  377. 

duties  transferred  and  bureau  abolished,  i:}97,  139S. 
Kstiraates  of  e.xpenses,  385. 

Hydrographic  Office  attached  to  Bureau  of  Naviga- 
tion, 12.W5. 
Line  and  stalT  bureaus,  378,  672. 
Marine  Corps  held  not  to  be,  957. 
Medicine  and  Surgery;  appointment  of  chief,  380. 

detail  of  assistant  to,  466. 
Navigation;  appointment  of  chief,  377. 

assistant  chief,  1222. 

Hydrographic  Office  attached  to,  387,  1236,  1237. 
Navy  Department;  creation  and  designation  of,  357. 

duties  ot,  357,  359,  360. 

grouping  of  in  divisions,  360. 

Judge  Advocate  General's  office  not  different  from 
359. 

^^arine  Corps  not  one  of,  359. 

Navy  Pay  Office  at  Washington  is  not  one  of,  3.59. 
Ordnance:  appointment  of  chief,  377,  378. 

assistant  to  chief,  pay  and  duties,  1261. 
Provisions  and  Clothing;  name  changed  to  Supplies 
and  Accounts,  1218. 

Records;  custody  of,  361. 

Stall  and  line  bureaus,  378,  672. 

Steam  Engineering;  name  changed  to  Engineering, 

1548. 
Supplier  and  Accounts;  appointment  of  chief,  379. 
assistants,  1224,  1271,  1272,  1280. 
money   accounts   to   show   direct   and   indirect 

charges,  1365,  1366. 
name  changed  to,  1218. 
overhead  charges;  how  distributed,  1398. 
property  accounts  to  be  kept,  etc.,  1203. 
report  to  Congress  of  supplies  on  hand,  etc.,  1203. 
ship 's  stores  profits  accounted  for  to,  1359. 
witness  fees  and  mileage  paid  by,  1310. 
Supplies  purchased  and  issued   without  regard   to 

bureaus,  1216. 
Transfer  of  supplies  between,  with  and  without  charge, 

1203. 
Yards  and  Docks;  appointment  of  chief,  377. 
appropriation  for  maintenance;  use  of,  1530. 
assistant,  1418. 

power  plants  at  navy  yards  and  stations  consoli- 
dated under,  1282. 
(luarterly  reports  of  automobiles  made  to,  1546. 
BURGLARY: 
ISreaking^ 

and  entering  vessel,  i:?52,  1353. 
into  compartment  of  vessel,  etc.,  used  by  mail 
service,  1338. 
post  office,  1338. 
BURIAL,: 

See  Funeral. 

P2xpenses;  enlisted  men  furloughed  without  pay,  537. 
naval  personnel,  537,  905,  90G,  1103,  1305,  i:W3, 1498. 
National  cemeteries,  1103. 
BUTTER: 

Purchase  of  for  Navy,  1113, 1115. 
CABINET  OFFICERS: 
See  Heads  of  departments. 


CADET  ENGINEERS,  768-770,  795,806. 
CA»IPS: 

Marine  Corps  training  camps,  1464. 
CANDIDATES: 

Sco KTamininy  boards;  Appointments. 
CANDLES: 

Estimates  and  appropriations  for  Navy,  1 103. 
CANNON: 

Balls,  loan  or  gift  of,  to  societies  and  municipalities, 

1249. 
Sale  of  smooth-bore,  for  experimental  purposes,  1193. 
Tests  of,  for  ilavy,  1195. 
CAPITAL  PUNISHMENT: 

Court-martial  sentence  must  be  confirmed  by  Presi- 
dent, 1036. 
Mitigation  of  death  sentence,  10.54, 1055. 
Naval  offenses,  979-982. 

Officer  demanding  trial  may  be  sentenced  to,  10' 2. 
Prohibited  in  the  Navy  imless  specifically  authorized, 

1034. 
Two-thirds  of  court-martial  must  concur  in  sentence, 

1034. 
AVar  Risk  Insurance  benefits  excluded  by,  1500. 
CAPTAIN   OF  THE  YARD: 

Additional  pay  as  aid,  670. 
CAPTAINS: 

Army;  lieutenants  in  the  Navy  rank  with,  062. 
Marine  Corps;  number  of,  1458. 
Navy;  advancement  to  admiral  or  vice  admiral  during 
war,  1481. 
number  in  staff  corps,  1427,  1428. 
pay,  791,  798,  1.301,  1:302. 
promotion  by  selection  to;  line,  1430. 

staff  corps, 1513. 
proportion  of  inline,  1425. 
rank  with  colonels,  662. 
retired,  considered  as  having  been  retired  with 

rank  of  rear  admiral,  912. 
retirement  of,  for  piu-pose  of  creating  vacancies, 1265. 
CAPTAIN  S  CLERK: 

Civil  appointees  not  allowed  at  sea;  naval  officers  de- 

taUedas,  1182. 
Pay,  794,  806. 

Service  held  to  be  naval  service,  588. 
CAPTURES: 

See  Vessels  of  the  Nary. 

General  pro\isions  relating  to,  1130,  1131,  1137-1147. 
Power  of  Congress  to  regulate,  38. 
Vessels  belonging  to  alien  enemies,  1477. 
CARNAL  KNOWLEDGE: 

Female  under  sixteen,  1349. 
CARPENTERS: 

See  Warrant  officers. 
CARRIAGES: 
See  Vehicles. 
CARTS: 

Estimates  and  appropriations  for,  Navy,  1103. 
CASHIERED: 

Dismissal  distinguished,  1032. 
CASUALTIES: 

Report  of  to  Secretary  of  the  Navy,  995. 
CATCH-ALL  CLAUSE: 

Articles  for  the  Government  of  the  Navy,  996-1002. 
CATALOGUE: 

Government  publications,  1234. 
CEMETERIES: 

Burial  in  national  cemeteries,  1163. 

Entombments  in  Arlington  Memorial  Amphitheater, 

1559. 
Lands  acquired  for,  285. 


1582 


INDEX. 


CENSUS: 

Guam  and  Samoa;  Alaska,  etc.,  1525. 
CERTIFICATES: 

Discliarge,  in  true  names,  1379,  1380. 
False,  punishment  for  making  or  using,  990, 1332. 
Sufficiency  of  bonds,  483. 
CERTIFIED  COPIES: 

See  Copks. 
CERTIORARI: 

E.xamining  board's  proceedings  can  not  be  reviewed 
by  civil  courts,  728. 
CHALLENGE: 

Right  of  accused  before  court-martial,  131, 1018. 
CHAPEL: 

Naval  Academy;  use  of  for  memorials,  1314,  1315. 
CHAPLAINS: 

See  Acting  officers;  Pay  of  Xaval  Establishment;  Staff 

officers. 
Advancement  in  rank,  679,  680. 
Annual  reports  to  Secretary  of  the  Navy,  503. 
Dutj-  to  conduct  divine  services  on  Sunday,  979. 
Examination  of  acting  chaplains  for  appointment  as^ 

1396. 
Form  of  worship,  502. 

Number  and  appointment  of,  501,  502,  1396. 
Pay  and  allowances,  793,  802,  1301, 1302,  1303. 
Promotion,  1396,  1397. 
Qualifications,  502. 
Rank,  679,  680,  1268. 1396. 
Restriction  on  number  commissioned  in  any  one  year, 

1397. 
Total  number  of,  and  acting,  1396. 
CHARACTER: 
Evidence,  1024. 

right  of  accused  to  process  for  obtaining  witnesses, 
1.33. 
CHARGES: 

Investigation  of,  217,  340. 
Right  of  accused  to  be  informed  of,  129,  131. 
CHARGES  AND  SPECIFICATIONS: 

Accused  furnished  with,  at  time  of  arrest,  131,  1025. 

Additional;  restriction  on  trying,  1025,  102S,  1029. 

Amendment  of,  1028. 

"Charge''  and  "specification"  explained,  1026,  1027. 

Decisions  relating  to,  1026-1029. 

Defective;  acquittal  bar  to  second  trial,  120. 

Description  of  accused,  1028. 

Fatally  defective;  proceedings  and  sentence  a  nullity, 

lOOS,  1009. 
Joinder  of  offenses,  1028. 
Lesser  offense  included  in  charge,  1029. 
Objections  to,  waived  by  accused,  1045 
Offenses  not  specificaUy  provided  for,  how  charged, 

1028. 
Perjury;  averments  necessary,  431. 
Scandalous  conduct  tending  to  the  destruction  of  good 

morals,  1028. 
Subornation  of  perjury;  necessary  averments,  431. 
Sufficiency;  jurisdiction  of  civil  courts,  402. 
question  for  decision  of  court-martial,  1028. 
technical  averments,  1027. 
CHARTS: 

Hydrographic  Office  to  provide,  387. 

number  of  copies  to  be  printed,  1238. 
PUot  charts;  Hydrographic  Office,  388. 
Preparation  and  sale  of;  Hydrographic  Office,  390,1236, 
Publication  of  foreign  hydrographic  surveys  restricted, 

1103. 
Sale  of  at  cost,  1182,  1184, 1236. 

Wilkes's  Expedition;  plates  loaned  to  Navy  Depart- 
ment for  printing,  380. 


CHECKAGES: 

Lost  property,  788,  1223. 
Pay— 

Of  deserter  for  amount  of  reward,  unauthorized, 

1064. 
Of  naval  estabUshment;  court-martial  sentence  re- 
quired, or  statutory  authority,  1004. 
Of  officer  in  arrears,  1072. 

Prescribed  by  statute;  jurisdiction  of  accounting 
officers,  233. 
CHECKS: 

Amount  less  than  one  dollar;  punishment  for  drawing 

and  issuing,  1337. 
Certified,  accepted  in  lieu  of  bond  or  written  guaranty, 

naval  contracts,  1298. 
Duplicates  issued  for  lost  or  stolen,  1098,  1099. 
Larceny  of,  1350. 
Lost — 

Or  stolen,  allowance  to  owner,  274. 
Suits  for,  236. 
Outstanding — 

More  than  three  years,  276-278. 
Report  of,  279,  1417. 
CHEESE: 

Navy;  contracts  may  be  made  for  longer  periods  than 
one  year,  1113. 

purchases  without  advertising,  1113. 
CHIEF  BOATSWAINS: 

See  Commissioned  w arrant  officers. 
CHIEF  CARPENTERS: 

See  Commissioned  warrant  officers. 
CHIEF  CLERKS: 

Construed  to  mean  statutory  position  only,  213. 
Duties  of,  209. 
Held  to  be  clerks,  206. 

Oaths  administered  by,  accounts  for  travel,  appoint- 
ments, etc.,  1215,  1386. 
CHIEF  CONSTRUCTOR: 
Appointment  of,  378,  1222. 

Assistant,  detailed  from  Construction  Corps,  1418. 
Title  of:  Chief  of  Bureau  of  Construction  and  Repair, 
670,671. 
CHIEF  GUNNTIRS: 

See  Commissioned  warrant  officers. 
CHIEF  MACHINISTS: 

See  Commissioned  warrant  officers. 
CHIEF  NURSES: 

Na^-y  Nurse  Corps,  female,  1303,  1304. 
CHIEF  OF  NAV.AL  OPERATIONS: 

Allowances  same  as  general  in  Army,  1512. 

Rank  and  title;  pay;  orders;  assistants;  retirement, 
1418. 

Succession  to  duties  of  Secretary  of  the  Navy,  1401. 

Tenure;  appointment;  duties,  1401. 
CHIEF  PAY  CLERKS: 

See  Commissioned  warrant  officers. 

Grade  established;  pay,  etc.,  1406, 1407. 
CHIEF  PHAJaaUACISTS: 

See  Commissioned  warrant  officers. 

Numberandappolntmentof,etc.,1419, 1420. 
CHIEF  SAILMAKERS: 

See  Commissioned  warrant  officers. 
CHIEFS  OF  BUREAUS: 

See  Bureaus;  Chief  Constructor;  Engineer  in  Chief ^ 
Chief  of  Naval  Operations;  Judge  Advocate  General'. 
Paymaster  General;  Surgeon  General. 

Absence  of,  213,  214,  364,  466, 1222,  1224,  1261,  1280,  1284, 
1418. 

Allowances,  same  as  Army,  1512. 

Appeals  to  head  of  department  from  decisions  of,  362. 

Appointing  power  exercised  by,  207. 


1583 


IXDEX. 


CHIEFS  OF  BUREAUS— Continued. 
Appointments,  how  made,  362-364,  378. 

recess  of  Senate,  99. 
Assistants,  362. 

authority  of,  213-214. 

Construction  and  Repair,  1418. 

Engineering,  1284. 

Judge  .Vdvocate  (leneral,  1418. 

Me<licine  and  Surgery,  466. 

Naval  Operations,  1418. 

Navigation,  1222. 

Ordnance,  1261. 

pay  of,  371,372. 

status  and  powers  of,  377. 

Supplies  and  Accounts,  1224,  1271,  1272,  1280. 

Yards  and  Docks,  1418. 
Commencement  of  term,  364. 

Commission  to  take  testimony  of,  for  use  in  court,  424. 
Construction  and  Repair;  appointment,  378, 1222. 

assistant,  1418. 

boards  to  report  upon  repairs  to  vessels,  776. 

rank  and  title  of,  670,  671. 

rank  on  retirement,  672,  673. 
Contracts;  bids  for  foreign  supplies  to  be  opened  in 
presence  of,  1114. 

bids  may  be  rejected  for  specified  causes,  1114. 

supplies  and  transportation,  1111. 

to  be  executed  in  foreign  country,  1114. 
Court-martial  jurisdiction  over,  62,  366,  977. 
Custodians  of  books  of  record  and  accounts,  361. 
Death,  resignation,  absence,  or  siclcness  of,  213,  214, 

364,  460,  1222,  1224,  1261,  1280,  1284,  1418. 
Deficiencies    prohibited;    removal    from    office    for 

incurring,  1104, 1105. 
Department  of  Justice  to  aflord  all  necessary  legal 

services  for,  323. 
Designation  of  one  to  act  for  another,  379. 
Dismissal  by  sentence  of  court-martial,  839. 
Dual  status  of,  366. 
Engineering;  acting  as  Secretary  of  the  Navy,  333. 

appointment  of,  379. 

assistant,  pay  and  duties,  1284. 

rank  and  title  of,  670,  671. 

rank  on  retirement,  672,  673. 
Equipment;  appointment  of,  377. 

office  abolished,  1397, 1398. 
Estimates;  required  to  furnish  to  Secretary  of  the 

Na\-y,  385. 
Expiration  of  term,  365. 
Extra  compensation  disallowed  for  performing  duties 

temporarily,  217. 
(General  provisions  relating  to,  362-377. 
Judge  Advocate  General;  appointment,  duties,  rank 

and  pay,  etc.,  1186,  1187,  1512. 
Medicine  and  Surgery,  appointment  of,  380. 

assistant  to,  466. 

rank  and  title  of,  670,  671 . 

rank  on  retirement,  672,  673. 
Navigation;  acting  as  Secretary  of  the  Navy,  333. 

appointment  of,  377. 

assistant  to;  pay  and  duties,  1222. 

claims  for  reimbursement  of  private  property  lost 
or  damaged,  1492-1494. 

not  authorized  to  change  membership  of  court- 
martial,  1018. 
Office  held  not  to  be  a  "grade"  in  the  Na\'y,  366,  379. 

he'd  to  be  a  "grade"  in  the  Navy,  367. 
Offices  are  not  civil,  365. 

Orders  have  force  as  emanating  from  Secretary  of  the 
Navy,  361. 


CHIEFS  OF  BUREAUS-Continued. 

Ordnance;  acting  as  Secretary  of  the  Navy,  333. 

appointment  of,  377,  378. 

assistant,  pay  and  duties,  12(;i. 
Pay,  8:59, 1264, 1302, 1512. 

after  retirement,  377. 

assistants,  371,  372. 

decisions  relating  to,  371,  372. 

same  as  .\rmy,  1512. 
Permanent  commission  and  pay;  authority  for  repealed, 
1380. 

commissioning  of  incumbent;  effect  of,  379. 
Precedence;  decisions  relating  to,  367-371. 
President  does  not  act  through,  500. 
Rank,  670-672, 1264, 1512. 

decisions  relating  to,  367-371. 

made  permanent;  effect  of,  379. 

on  retirement,  372-376,  672,  673. 

same  as  Army,  1512. 
Removal  by  President,  365. 

by  sentence  of  court-martial,  366. 
Reports;  heads  of  departments  shall  direct  whether  to 
be  printed,  1238. 

number  of  copies  which  may  be  printed,  1238. 
Responsibility  for  official  acts,  350. 
Retain  permanent  office  in  Navy,  366. 
Retired;  continuance  in  office,  376. 

officer;  eligibility  for  appointment  363,  364. 
Retirement,  363,  372-377,  13a3. 

after  termination  of  office,  376. 

decisions  relating  to,  372-377. 

ordered  before  retiring  board,  376. 

titles  after,  376. 

vacancy  created  by,  379,  672. 

temporary  appointment  to  fill,  215,  364,  379. 
Secretary  of  the  Navy  may  perform  duties  of,  351,  361. 
Signatmes;  facsimile  stamps,  351 . 
Staff  officers  eligible  for  appointment  as,  362,  378. 

exempt  from  sea  service  after  expiration  of  term 
578. 
Status  of,  365-367. 
Steam  Engineering;  name  changed  to  E:ngineering, 

1548. 
Supervision  of;  exclusive  duty  of  Secretary  of  the 

Navy,  360. 
Supphes  and  Accounts;  appointment  of,  379. 

assistants,  1224,  1271,  1272,  1280. 
duties  of,  1224. 
pay,  1271,  1272. 

bond,  476. 

property  returns  audited  by,  1223. 

of  storekeeper  at  Naval  Academy  rendered  to, 
1304. 

rank  and  title  of,  670,  671. 

rank  on  retirement,  672,  673. 

report  of  receipts  and  expenditures  to  be  rendered 
by,  1304. 
Temporary  vacancies,  performance  of  duties,  213,  214, 
364,  466,  1222,  1224,  1261,  1280,  1284,  1418. 

retirement  of  incumbent;  how  filled,  215, 364,  3/9. 
Tenure  of  office,  362,  364,  365. 
Titles,  670,  671. 

after  retirement,  376. 

decisions  relating  to,  367-371. 

made  permanent  in  certain  cases,  379. 

retired  or  returning  to  active  service,  672. 
Yards  and  Docks,  appointment  of,  377,  1294. 

assistant,  1418. 
CHIEFS   OF  DIVISIONS: 
Held  to  be  clerks,  203,  206. 


1584 


INDEX. 


CHIEF  WARRANT  OFFICERS: 

See  Commissioned  warrant  officers;  Warrant  officers. 
Designated  as  commissioned  warrant  officers,  512. 
CHILDREN: 

Dependent;    death  gratuity  paid  to,  1546,  1547. 
Officers  and  enlisted  men;  transportation  furnished  for, 
1535, 1536. 
CHINESE: 

Citizenship  of,  138,  139. 

Naval  forces  employed  in  preventing  immigration  of, 
1081. 
CHURCHES: 

Chaplains  to  conduct  worship  according  to  forms  of, 
502. 
CITIZENSHIP: 

Decisions  relating  to,  137-141. 
Deserter,  convicted;  forfeiture  of,  573. 

pardoned  to  restore,  84. 
EnUsted  men,  additional  pay:   General   Order  No. 
34;  862,  867,  868. 
entered  in  ship's  books,  995. 
jurisdiction  of  accounting  officers,  2.39. 
Expatriation,  right  of  American  citizens,  140. 
Falsely  claiming;  punishment  for,  1328. 
Forfeiture  of,  by  desertion,  73-74,  981,  1077,  1078. 

power  of  Congress  to  provide,  140. 
Midshipmen,  571. 

NatuiaUzation  of  aUens  in  naval  service,  etc.,  1505-1507. 
Naval  officers,  571. 

Reserve  Force,  1443. 
Officers  of  vessels  of  the  United  States,  571. 
Power  of  Congress,  36. 

Retired  officer,  naturalized,  residing  abroad,  572. 
Territories  and  insular  possessions,  113. 
Virgin  Islands,  1472. 
CIVIL,  AUTHORITIES: 
See  Courts. 
Arrest  of— 

Deserters  by,  118. 

Naval  offenders  for  deUvery  to  Navy,  1311. 
Copies  of  records  desired  for  use  in  court  proceedings, 

424. 
Coroners;  right  to  hold  inquest   on   United   States 

reservation,  293. 
Court-martial  jurisdiction  over  persons  in  custody  of, 

63,  64. 
Delivery  to,  of  persons  in  Navy,  67,  68,  107. 
Enlisted  man  arrested  by;  pay  during  absence,  871,  950. 
Hospital  Corps  member  arrested  for  practising  medi- 
cine without  license,  460. 
Interference  by  States  with  Federal  instrumentalities, 

47. 
Jurisdiction,  commitment  of  insane  to  Saint  Eliza- 
beths Hospital,  789. 
health  reports  in  naval  cases,  461. 
illegal  acts  by  military  officers,  54. 
on  naval  reservations,  292-294. 
persons  in  naval  ser\ace,  65. 
soldiers  during  war,  42. 
United  States  property,  289-292. 
with  relation  to  courts-martial,  etc.,  1047-1051. 
Liability  of  commanding  officer  for  illegal  acts,  1003. 
Mihtary  officer  awaiting  trial  by;  pay,  825. 
Naval  offender  in  custody  of;  effect  on  statute  of  limita- 
tions, 1059. 
officers  imprisoned  by,  dropped  from  roUs,  1.503. 
prisoners  desired  as  witnesses  by,  403. 
Offenses  violating  both  military  and  civil  law,  120. 
Officer  undergoing  trial  by;  commutation  of  quarters, 

700,  701. 
Prisoners,  civilian,  confined  on  naval  vessels,  576. 


CIVIL  AUTHORITIES -Continued. 

Service  of  process  on  persons  in  naval  or  civil  service, 

292,  293. 
State  jurisdiction  over  Federal  officers,  51. 
CIVIL  EMPLOYEES: 

See   Civil  Establishmenl. 
CIVIL  EMPLOYMENT: 

Coimsel  before  courts-martial,  etc.:  piililic  officers  not 

to  accept  fee  as,  1333. 
Enlisted  men,  restricted;  competition  with  civiUans, 

352,  1304,  1411,  1412,  1463,  1404. 
Legality  of  accepting,  by  naval  officer,  not  subject  for 

Attorney  General's  opinion,  580. 
Marine  Band;  restrictions;  competition  with  civilians, 

1463,  1464. 
Naval- 
Officers  accepting  diplomatic  or  consular  office,  579. 
and  enlisted  men,  holding  offices  in  foreign 

countries,  1399,  1416,  1502,  1556. 
holding  private  employment,  576. 
not  allowed,  with  certain  private  companies, 
1250. 
Personnel  not  to  hold  offices  in  territories,  1075. 
Reserve  Force  permitted  to  hold,  1446. 
Navy  bands  not  to  compete  with  civilians,  1.304. 
Restrictions  on;  douljle  compensation;  additional  pay, 

1066-1071. 
Retired  officer;  eligibility  for  Congress,  643. 
Secretary  of  VVar  not  in  military  service,  34. 
CIVIL  ENGINEERS: 
See  Assistants. 
Advancement  in  rank  up  to  lieutenant  commander, 

1426. 
Appointment,  531. 

Assistant  to  chief  of  Bureau  of  Yards  and  Docks  de- 
tailed from,  1418. 
Chief  of  the  Bureau  of  Yards  and  Docks,  appointed 

from,  1294. 
Distribution  of  officers  in  grades,  1428. 
Held  to  be  staff  corps,  685. 
Number  of,  531,  1265, 1425. 
Pay,  794,  803. 
Rank,  678,  1428, 1474. 

and  precedence  of  assistants,  1474. 
CIVIL  ESTABLISHMENT: 

See  Appropriations;  Estimates;  Executive  departments; 
Hours;  Leave  o/  absence;  Pay  of  Civil  EslaUishment; 
Reports. 
Absence,  unauthorized;  forfeiture  of  pay  for,  1297. 
Age,  retirement  of  civil  employees,  1536-1543. 

retention  in  service  beyond,  1539, 1540. 
Appointments- 
Decisions  relating  to,  338. 
Heads  of  departments  to  make,  205. 
Inspector,  weigher,  and  measurer  of  fuel,  1110. 
Members  of  Congress  accepting  consideration  for 

influencing,  1332,  1333. 
Preference  to  discharged  soldiers  and  sailors,  their 

wives,  etc.,  1065,  1526. 
President  making,  without  consent  of  Senate,  1072. 
Secretary  of  the  Navy  to  make,  337. 
Appropriations;  inadequate;  right  to  pay  of  office,  205. 
Increase  of  the  Navy,  etc.,  report  of  employees 

under,  1272. 
limit  number  and  pay  of  employees,  205, 1104, 1180, 

USS,  1384,  1409. 
lump  sum;  restrictions  on  use  of,  336,  1188,  1281, 

1307,  1389,  1398,  1491,  1492,  1503. 
naval  service,  used  to  pay;  annual  report  of  to 

Congress,  1194. 
new  ships;  restrictions  on  use  of,  1281. 


1585 


IXDEX. 


CIVIL  ESTABLISH>IENT-Oontinucd. 

Appropriations  not  to  l)e  exceeded,  IKsO. 
Attorneys  for  claimants,  etc.;  punishment   of  em- 
ployees accepting  fees  as,  13:52,  1333. 
former  employees  not  to  act  against  United  States, 

224. 
not  to  lie  employed  by  heads  of  departments,  221. 
Cash  rewards  for  suggested  improvements,  1514. 
Changes  in  grades  of  clerks,  20.3,  1180. 
Chief  clerks:  oaths  administered  by,  121.'),  1386. 

to  supervise,  etc.,  209. 
Chiefs  of  iHireaus,  Na\-y  Department,  not  part  of,  365. 

of  divisions  are  clerks,  203. 
Civil  engineers  not  part  of,  532. 
Claims  against  United  States;  oflScers,  etc.,  interested 

in,  1332. 
Classification  of  employees  in  departments,  202. 
Classified  ser\ice;  examinations  for  employment  at 

navy  yards,  780. 
Clerks  held  to  be  officers,  90. 
Clerkships  open  to  women,  202,  l.i20,  l.'i26. 
Compensation  for  injuries,  etc.,  1467-1469. 

from  private  parties  to  employees,  restricted,  1470 . 
Congress  may  be  furnished  information  by,  13S8. 
Contagious  disease  in  family:  leave  granted,  1221. 
Contingent  apjjropriations  not  available  for,  without 

specific  authority,  liss. 
Contracts  for  services  to  be  made  after  advertising  for 

proposals,  1109. 
Contributions  for  political  purposes,  340,  341,  783, 1180, 
1181,  13.34,  1335. 
presents  to  superiors,  1073. 
Demotions,  1383, 1388. 

Details  from  Government  Printing  Office  to  executive 
departments,  1359, 1360. 
from  outside  of  District  of  Columbia;  restrictions 

on,  1188,  1290,  1291,  1384. 
to  other  departments,  disbursing  clerks,  212. 
Detectives:  employment  of,  restricted,  1220. 
Disability;  retirement  for,  1538,  1539. 
Disbursing  agents:  buildings  under  construction,  261. 
clerk  detailed  to  another  department,  212. 

executive  departments,  appointment,  etc.,  209. 
temporarOy  absent;  substitute,  1315, 1316. 
Discharge,  338. 

inefficiency;  rules  governing,  1383. 
injunction  to  prevent,  99. 
preference  in  retention,  1180. 
procedure  governing,  1388. 
Distribution    of   clerks,    temporary    details    within 

department,  203. 
Efficiency  experts;  restrictions  on  employment  of,  1394. 

ratings,  1383. 
Kight-hour  law,  requirements  for  Govenunent  work, 

1117, 1219, 1220, 1370, 1371, 1474. 
Employment  of  personal  services  in  excess  of  appro- 
priations, restricted,  1104,  IISO,  1188, 1384, 1409. 
in  connection  with  unauthorized  boards,  commis- 
sions, etc.,  1105, 1316. 
Estimate  official  to  be  designated  in  each  department, 
1391, 1392. 
for  civil  employees  paid  from  naval  appropriations, 
1194. 
Enticing  workmen  from  arsenals,  etc.,  1327. 
Examinations  for  ajjpointment,  202. 

for  employment,  navy  yards,  780. 
Extra  duties;  additional  pay  restricted,  217, 1066-1071 
General  provisions  relating  to,  189-228,  334-341,  1065- 

1073. 
Grades  and  number  of  clerks;  changes  in,  203, 1180. 


CIVIL  ESTABLISHMENT  -rontinucd. 

Head  of  department  can  not  abolish  positions,  212. 
Holidays,  201,781,782. 

allowed  per  diem  employees,  1194,  1198. 
days  declared  to  be,  1224. 

excluded  from  leave  of  absence,  employees  in 
departments,  12G3. 
Honorably  discharged  soldiers  and  sailors  preferred, 

1065,  1180,  1383,  1.324,  1526. 
Hours  of  labor;  executive  departments,  1220, 1221. 
Government  laborers,  workmen,  and  mechanics, 

1117,  1219,  1220,  1.370,  1371,  1474. 
suspension  of  work  by  Executive  order,  782. 
Impersonation  of  officer  or  employee,  1323. 
Incompatible  offices,  defined,  1069. 
Increasing  munber  of  lower  grade  and  reducing  number 

of  higher  grade,  203,  1180. 
Inefficient  employees;  report  to  Tongress  in  annual 

estimates,  1204. 
Influencing  legislation;  services  not  to  l)e  used  for 

purpose  of,  1,527. 
Insular  possessions:  pay  of  employees  while  in  transit, 
1278. 
sale  of  stores  to,  1313,  1314. 
travel  of  employees  to  and  from,  782. 
Investigation  of  alleged  misconduct, etc.,  217. 
Lump  sum  - 

Appropriations;  explanations  to  accompany  esti- 
mates, 138"),  1386. 
restrictions  on  employment  from  funds  for 
new  ships,  1281. 
Employees,  336. 

drafting,  technical  and  inspection  force,  Ul**, 

1419. 
navy  yards  and  stations;  number  and  rates  of 

pay  fixed  by  Secretary,  1312, 1313. 
restrictions  on  pay  of,  1389,  1398,  1491,  1492, 
1503. 
on  salaries  and  transfers,  etc.,  1389. 
specific  authorization  required  for,  1307. 
Married  women;  wives  of  soldiers  and  sailors,  1520, 

1526. 
Medical  attendance  furnished,  459. 
Members  of  Congress;  right  to  communicate  v  ith, 

individually  or  collectively,  1388. 
Misconduct;  investigation  of,  340. 
Naval  Home;  employment  of  beneficiaries,  1294. 
Naval  officer  not  eligible  to  hold  civil  office  in  Navy 

Department,  389. 
Naval  Reserve  Force  eligible  for  office  in,  1446. 

not  to  perform  duties  of  character  performed  liy, 
1528. 
Navy;    annual    report    concerning    mechanics    and 

laborers,  381. 
Navy  Department:  clerks  and  employees;  number  and 

compensation,  etc.,  334-341. 
Navy   yards  and  stations,  appointment   of  master 
workmen,  779,  780. 
boards  to  report  upon  repairs  to  vessels,  776,777. 
laborers:  employment  of,  780. 
mandamus  against  board  of  labor  employment,  780. 
naval  officers  not  to  be  appointed  to  positions,  779, 

780. 
number  and  pay  fixed  by  Secretary,  1312, 1313. 
offices  may  be  abolished,  533. 
Number  and  grades  of  employees;  changes  in,  203, 1180. 
and  pay  of  employees,  1104,  1180,  1384,  1409. 

to  be  in  accordance  with  specific  appropria- 
tions, 1188. 
of  employees  in  departments,  205. 

disbursing  clerk  not  appropriated  for,  211. 


1586 


INDEX. 


CIVIL,  ESTABLISHMENT    Continued. 

Number  of  employees  in  departments;  extra  clerks 
during  sessions  of  Congress,  208. 
penalty  for  violating  law  relating  to,  13S4. 
Oath— 

Of  oflTice,  337,  338,  1065,  1006. 

administered  by  chief  clerks,  1215. 
To  accounts,  etc.,  administered  by  chief  clerks  and 
designated  employees,  13S0. 
OfiBcer  includes  employee,  413. 
Offices  at  navy  yards  may  be  abolished,  533. 

can  not  be  abolished  without  statutory  authority, 
204. 
Official  Register  of  the  United  States;  data  contained 

in,  1235,  1236. 
PoUtical— 

Considerations  in  employment  of  laborers  at  navy 

yards,  780. 
Contributions,  783. 

constitutionaUty  of  statutes  relating  to,  340, 341. 
forbidden,  1180,  1181. 

soliciting,    giving,    etc.;    punishment,    1334, 
1335. 
Opinion  not  ground  for  discharge,  783. 
Positions  can  not  be  abolished  without  statutory  au- 
thority, 204. 
Preference  for  employment,  navy  yards  and  stations, 
780,  1313. 
honorably  discharged  sailors,  etc.,  338,  780,  1065. 

1180,  1383,  1524,  1526,  1530. 
in  appointment;  wives  of  disabled  soldiers,  etc., 

1526. 
in  retention  of  honorably  discharged  soldiers  and 

sailors,  and  widows  and  orphans  of,  1180. 
of  persons  disabled  in  miUtary  service,  1065. 
Presents  to  superiors  prohibited,  1073. 
Professors  and  instructors  at  Naval  Academy;  number 

and  compensation,  701,  1457,  1535. 
Promotions;  efficiency  ratings,  etc.,  1383.  . 
jurisdiction  of  accounting  officers,  242. 
Reducing  clerks  of  higher  grade,  and  increasing  num- 
ber in  lower  grade,  IISO. 
Reduction  of  force;  preference  in  retention,  338,  1180, 

138;3. 
Register  of  employees;  data  required  for  biennial,  228, 

1235, 1236. 
Reinstatement — 

After  service  in  National  Guard  and  Medical  Re. 
serve  Corps,  Army,  14G4. 
in  Officers'  Reserve  Corps,  1476. 
in  war  with  Germany,  1530. 
Of  employees  honorably  discharged  from  military 
service,  1524. 
transferred  to  Census  Office,  1526. 
service  credited  for  retirement,  1541. 
Removal  from  office,  99,  338,  1180,  138:3,  1388. 
Reports — 

By  heads  of  departments  in  cormection  with  re- 
tirement, 1542,  1543. 
To  be  submitted  annually  to  Congress  concerning, 

227. 
To  Congress  of  clerks,  etc.,  employed  from  naval 
appropriations,  1194. 
Retired  officers;  appointments  in,  337. 
Retirement;  general  provisions,  15:56-1543. 
Right  to  petition  Congress,  or  members  thereof,  or  to 

furnish  information,  1388. 
Sale  of  Marine  Corps  stores  to,  1391. 
Soldiers  and  sailors- 
Discharged,  preferred  for  appointment,  and  reten- 
tion, 1180,  1383,  1526. 


CIVIL  ESTABLISHMENT-Continued. 
Soldiers  and  sailors — Continued 
Honorably  discharged — 

From  war  with  Clermany;  reinstatement,  1530. 
Preference,  338,  1524. 
Preferred  for  appointment,  780,  1065. 
Wives  of,  1180,  1520,  1526. 
Soliciting  contributions  for  political  purposes,  1334, 
1335. 
for  presents  to  superiors  prohibited,  1073. 
Subsistence  for  travel  outside  District  of  Columbia, 
1394. 
Per  diem  for  travel  outside  District  of  Columbia, 
1398,  1399. 
Substitute  clerk,  regular  employee  on  leave,  207. 
Simdays  excluded  from  leave  of  absence,  employees  in 

departments,  1263. 
Suspension  of  employees,  340,  783. 
Temporary  clerks,  compensation  of,  205. 
employees:  sessions  of  Congress,  208,  341. 
vacancy,  head  of  department  or  bureau;  how  filled, 
212-217. 
Transfer  of  employees  between  bureaus;  explanation 
in  estimates,  1290. 
between  departments  and  independent  establish- 
ments, 1290,  1389,  1491. 
to  Census  Office;  reinstatement,  1526. 
Transportation  of,  and  families,  in  Army  transports, 

1298. 
Travel  to  points  outside  the  District  of  Columbia,  1305, 

1394,  1398,  1399. 
Two  offices;  restriction  on  double  salaries,  10G6-1071. 
Unauthorized  employment  prohibited,  1180. 

office;  no  salary  for,  1066. 
Witnesses  in  court;  actual  expenses  allowed,  413. 
Women;  employment  of,  202,  1520, 1526. 
CIVILIAN  MARKSMANSHIP: 

Director  of;  appointment  of  Marine  officer  as,  1465. 
CIVILIANS: 

Arrest  of  by  miUtary  authority,  57, 1387, 1478. 
Court-martial  jurisdiction,  62,  63,  973,  974. 
CIVIL  SERVICE: 

See  Civil  Establishment. 

Commission,  not  an  executive  department,  225. 
Efficiency  ratings;  promotions,  demotions  and  dismiss- 
als; preference,  etc.,  338, 1383. 
Examinations,  202. 
CIVIL  WAR: 

Lost  discharge;  certificate  in  lieu  of,  1203,  1204. 
Removal  of  charge  of  desertion;  issuance  of  discharge 

certificates,  etc.,  1200,  1201,  1272. 
Retirement  of  officers  who  served  during,  968,  1266, 
1282,  1293,  1312. 
CLAIMS: 

See  Accounting  offlcers;   Court  of  Claims;   Mistake  of 

fact;  Mistake  of  law. 
Accounting  offlcers — 

AUowance  of,  report  to  Congress,  1182. 
Jurisdiction;  statute  of  limitations,  1182. 
Appropriation  for  payment  exhausted;  report  of  to 

Congress,  1182. 
Approval  by  head  of  department ;  effect  of,  242,  243,  244. 

by  Secretary  of  the  Navy,  272. 
Assignment  of,  against  United  States,  1093. 
Attorneys- 
Fees  not  to  be  deducted  by  accounting  officers, 

naval  cases,  1272. 
Prosecuting;  notaries  pubUc  may  act  before  de- 
partments, 1295. 
restrictions  on,  224,  1093,  1332,  1333. 


1587 


IXDEX. 


CLAIMS— (out  imicd. 

Collision,  naval  vessels — 
Adjustment  of,  i:iri8,  1359. 
Suit  in  foreign  country,  223. 
Compensation  for  seizure  of  vessels  belonging  to  alien 

enemies,  1477. 
Counsel  to  be  furnished  departments  investigating, 

364. 
Court  of  Claims,  suits  against  United  States,  1362.    • 
Damages  by  Amercan  forces  abroad;  settlement  of, 
l.")04. 
by  naval  forces  abroad;  settlement  of,  1508. 
caused  by  naval  aircraft;  settlement  of;  report  to 
■   Congress,  1545. 

naval  personnel;  adjustment  of,  1527. 
naval  vessels,  settlement  of,  1358, 1359. 
Deceased  personnel,  Navy  and  Marine  Corps;  payment 

of  money  due,  1305,  1306. 
Definition  of  "claim  or  matter,"  1363. 
District  courts  to  have  jurisdiction  of  suits  agaiiist 

United  Stales,  1361,  1362. 
EfTects  lost  in  naval  service,  271, 1492-1494. 
Enlisted  men;  ellects  lost  on  vessels;  permanent  appro- 
priation for  payment,  1106. 
Equitable;  accounting  oflRcers'  jurisdiction,  235. 
Executive  departments  may  refer  to  Coiut  of  Claims, 

i:563,  1.364. 
Form  of;  lost  or  damaged  property,  naval  personnel, 

1493. 
Fraudulent,  1324. 

for  wages,  etc.,  1323. 
Heads  of  departments  not  authorized  to  submit  esti- 
mates for  payment  of,  235. 
Legal  assistance  required  by  departmental  investiga- 
tion, 220. 
Lost  or  damaged  property;  reimbursement  of  naval 

personnel,  271,  1492-1494. 
Mandamus  proceedings  to  compel  payment,  256-257. 
Merger  of  in  check,  277. 
Naval  pension  fund;  estimates  of,  1103. 
Oath  administered  to,  for  travel  and  other  expenses, 
1386. 
to  be  taken  by  persons  prosecuting  against  United 
States,  1093. 
Offenses  connected  with;  punishment.  Navy,  990,  991. 
Officers,  employees,  etc.,  interested,  against  United 

States,  1332. 
Payment  upon  warrants,  276. 
Prosecution  by  former  Government  employees,  224. 
of,  against  United  States;  oath  to  be  taken,  1093. 
notaries  public  not  disqualified,  1295. 
public  officers  forbidden  to  accept  compensa- 
tion, 1332, 1333. 
Reopening  of  accoimts;  decisions  relating  to,  248-256. 
Report  to  Congress  of  those  allowed,  1193. 

when  allowed  under  exhausted  appropriations, 
1182. 
Security  accepted  by  Government,  231. 
Set  off;  jiurisdiction  of  accounting  officers,  244-246. 
Settlement  of  by  Treasiu'y  Department,  229. 

from  private  funds,  231. 
Statute  of  limitations;  checks  outstanding  more  than 

three  years,  277. 
Suit  by  United  States  to  recover  from  delinquent 

officer,  1072. 
Tortious  conduct  of  public  officers;  adjustment,  1359. 
Travel,  approval  by  Secretary  of  the  Navy,  237,  238. 
shortest    usually    traveled    route;  Secretary    of 
Navy  to  determine,  1315. 
Unliquidated;  jurisdiction  of  accounting  officers,  234. 


CLAIMS— Continued. 

Witnesses  subpcrnaed  to  testify  before  departments, 
219,  220. 
CLASSIFICATION: 

Clerks,  202. 

Naval  vessels,  772,  1277. 
CLASSIFIED   SERVICE: 

Examinations  for  employment  at  navy  yards,  780. 
CLEMENCY: 

Members  of  naval  court-martial  may  recommend,  1034. 
Mitigation  of  court-martial  sentences,  85. 
CLERKS: 

See  Civil  Establishment;  Pay  of  Civil  Establishment; 

Pay  of  Naval  Establishment. 
Allowance  of,  to  officers  at  sea;  civilians  not  appointed, 

1182. 
Classification  of,  rates  of  pay,  204. 
Clerk  of  the  yard,  office  may  be  abolished  by  Secre- 
tary of  the  Na\'y,  533. 
Commandant's;  office  may  be  abolished  by  Secretary 

of  the  Navy,  533. 
Construed  to  include  chiefs  of  divisions,  chief  clerks, 

and  disbursing  clerks,  203,  206. 
Defined;  includes  an  employee,  413. 
Naval  Constructor's;  office  may  be  abolished  by  Sec- 
retary of  the  Navy,  533. 
Naval  officers  detailed  as,  at  sea,  1182. 
Paymaster's :  not  part  of  Supply  Corps,  470. 

subject  to  court-martial,  62. 
Storekeeper's;  office  may  be  abolished  by  Secretary 
ofthe  Navy,  533. 
CLOTHING: 

Advertising  for  proposals,  1111. 
Bounty,  enlisted  men.  Navy,  876,  877. 
Condemned;  proceeds  of  sales  available  for  expendi- 
ture, 1108. 
Discharged  naval  prisoners,  1313. 

as  undesirable,  etc.,  1107. 
Gratuity,    Naval   Reserve   Force;   not    checked    on 

temporary  appointment  to  Navy,  1510. 
Lost  on  vessels;  reimbursement  for,  271, 1106, 1492-1494. 
Marine  Corps- 
Appropriation  available  for  purchase  of  uniforms, 
etc.,  to  be  sold  at  cost,  1531. 
for  reimbursing  claimants  for  lost  clothing, 
etc.,  1493. 
Midshipmen,  procurement  of,  770. 
Naval  prisoners  furnished  on  discharge,  1310, 1311. 
Outfit- 
On  enlistment;  payment  of  cost  by  minor  dis- 
charged for  fraudulent  enlistment,  1402,  1403. 
On  first  enlistment,  1203. 
On  second  enlistment,  1403. 
Refund  of.  Naval  Reserve  Force,  on  discharge, 
1444,  1447. 
Navy,  on  discharge,  1292,  1294,  1298,  1402, 1403. 
Purchase  of  in  excess  of  appropriations,  1116,  1288. 

Navy,  contrary  to  law,  1324,  1325. 
Sale  of— 

At  cost,  to  officers  of  the  Navy  and  Marine  Corps 

and  midshipmen,  1521,  1531. 
Prohibited,  1121. 
Unlawfully  selling,  stealing,  etc.,  990. 
CLOTHING   AND  SMALL  STORES   FUND: 

Created  for  Navy,  1204, 1280. 
COAL: 

See  Contracts;  Fuel. 

Alaskan;  preference  right  to  purchase  for  Army  and 
Navy,  1307. 
use  of  for  Navy,  etc.,  1400. 
Mining  in  Alaska,  for  Navy,  1547, 1548. 


1588 


INDEX. 


COAL— Continued. 

Transportation  for  Navy,  American  vessels,  1283. 
in  Alaska,  1393,  1394. 
COAL  DEPOTS: 

Establishment  of  for  Navy,  789. 
COAL,  PASSER: 

Rating  changed  to  fireman  third-class,  1423. 
COAST  AXD  GEODETIC   SURVEY: 

Commissioned   officers  eligible   for   membership    on 

naval  courts-martial,  1494. 
Employment  of  naval  officers  in  surveying  the  coast, 

1151. 
Expenses  defrayed  from  naval  appropriations,  1479. 
General  provisions  relating  to,  262. 
Laws  and  regulations  of  Navy  applicable  to,  1479, 1480. 
Naval  officers  detailed  to;  subsistence,  121-5. 
Regulations  to  be  prescribed  by  Secretaries  of  War, 

Navy,  and  Commerce,  14S0. 
Service  credited  for  longevity  pay  in  Xa\-y,  Marine 

Corps,  etc.,  1535. 
Transfer  to  Xa^■y  during  war  or  emergency;  status 

and  rank  of  personnel,  1479, 1480. 
Vessels  of,  and  those  of  Fish  Commission,  to  have 
same  relation  to  Navy  Department,  11S6. 
COAST  DEFENSE  RESERVE: 

General  provisions  relating  to,  14.>?,  1454. 
COASTERS   HARBOR  ISLAND: 

Quarters  for  personnel,  training  force,  1248. 
COAST  GUARD: 

Commissioned   officers  eligible   for   membership    on 

naval  courts-martial,  1494. 
Cooperation  with  the  Navy,  1091. 
Duties,  1456. 
Enlisted  men  appointed  to  Naval  Academy,  743. 

serving  with  Navy,  are  enhsted  men  of  the  Navy, 
539. 
Established:  service  with  Navy;  expenses,  etc.,  1400. 
Expenses  of,  when  cooperating  with  Na^'y,  1091,  1400, 

14.56. 
Instruction  at  aviation  schools  of  the  Navy,  14.56. 
Laws  to  which  subject;  jurisdiction,  1455. 
Military  command  by  and  over,  1400. 
Navy  defined  to  include,  1524. 
Part  of  the  Na\'y.  rank  when  ser\-ing  as,  705. 
Precedence  with  naval  officers,  14.56. 
Rank  of  officers  with  relation  to  the  Na^'J%  705. 
Reimbursement  for  lost  or  damaged  clothing,  1493. 1494. 
Sale  of  naval  suppUes  to  personnel  of,  15.33. 

uniforms,  etc.,  to,  at  cost,  while  operating  with 
Navy,  1521. 
Secretary  of  the  Navy  to  direct  when  ordered  by  the 

President,  1091. 
Service  credited  to  naval  personnel  for  pay  and  retire- 
ment, 1535,  1550. 
in,  not  naval  service,  588. 
Status;  part  of  the  Navy,  706. 
Titles  of  officers,  705,  1553. 

Transfer  of  officers  to  permanent  Navy,  1549,  1550 
COHABITATION: 

Male  person  with  more  than  one  woman,  1354 
COLLATERAL: 

Authority  of  pubUc  officers  to  accept,  231. 
COLLECTOR  OF  CUSTOMS: 
Inspection  of  naval  vessels,  260. 
COLLEGES: 

Detail  of  naval  officers  to,  435,  1184,  118.5,  1247  1248 
COLLISIONS: 

Claims  against  naval  vessels;  adjustment  of,  1358,  1359. 
unhquidated;  jurisdiction  of  heads  of  departments 
2.34-235. 
Naval  vessel  in  foreign  waters,  suit  for,  223. 


COLLISIONS— Continued. 
Rules — 

For  preventing;  certain  inland  waters,  1240-1246. 
Great  Lakes,  etc.,  1240-; 246. 
harbors,   rivers,   and  inland   waters,   except 
Great  Lakes  and  Red  River  of  the  North, 
etc.,  1251-1261. 
international;  high  seas,  1204-1215. 
motor  boats,  13.56-1358. 

Red  River  of  the  North  and  rivers  emptying 
into  Gulf  of  Mexico,  112.5,  113.5,  1246,  1247. 
Governing  regattas  or  marine  parades,  1300,  1301. 
Vessels;  duty  of  master;  penalty,  1215,  1216. 
COLONELS: 

Appointment  of  major  general  commandant  from  rank 

of,  1460. 
Captains,  Na\-y,  rank  with,  662. 
Number  of,  Marine  Corps,  1458. 

Senior  staff  officers  counted  as,  in  making  computa- 
tions, Marine  Corps,  1460. 
COLORS: 
See  Flags. 

Gifts  to  naval  vessels;  acceptance  and  care  of,  1305. 
COMBINATIONS: 

Against  commanding  officers.  Navy,  984. 
COaOLVND: 

.\bsence  from  without  leave;  punishment,  Navy,  988. 
Army  and  Marine  Corps,  1.544,  1.545. 

and  Na^'y,  joint  forces,  443,  444,  668. 
Coast  Guard  and  naval  vessels;  President  to  direct,1400. 
Commissioned  warrant  officers.  1267. 
Constniction  officers  may  exercise  in  the  line  or  other 

staff  corps,  508. 
Consular  officers;  jurisdiction  over  military  authorities, 

576. 
Courts  can  not  exercise,  621. 
Crew  of  wrecked  or  lost  vessel,  996. 
Hospital  ships;  medical  officers,  703. 

validity  of  regulations,  785. 
Line  officers  detailed  to  duty  under  staff  officers,  1359. 
Naval  Reserve  Force — 

and  regular  Navy;  precedence,  1511. 
Restrictions  on,  1511. 

Naval  AuxiUary  Reser\-e,  14-53. 
Naval  vessels,  772-774. 

and  squadrons;  rules  governing  assignment  to, 

1277. 
how  officered  and  manned,  775. 
marine  officer  ineligible,  955. 
President's  power;  limitation  by  Congress,  578. 
Questions  of,  are  military  questions,  932. 
Retired  officers  assigned  to,  in  time  of  war,  659. 

withdrawn  from,  654,  655. 
Staff  officers;  effeot  of  relative  rank,  702. 

rank  not  to  confer,  1265. 
Succession  to;  line  officer  detailed  to  engineering  duty, 

1435. 
Warrant  officers  and  commissioned  warrant  officers, 
1267. 
C030IANDANT: 

See  Major  general  commandant . 

Clerks  of,  not  officers  or  enlisted  men,  534. 

office  may  be  aboUshed  by  Secretary  of  the  Navy, 

533. 
pay,  794,  806. 
service  not  miUtary,  588. 
status,  903,  904,  953. 
Mare  Island  Navy  Yard;  pay  of,  1177. 
Marme  Corps,  928, 1392, 1460. 

Naval  station;  duty  of  example  and  correction,  978,979. 
general  courts-martial  convened  by,  1310. 


1589 


INDEX. 


COMMAXDAXT— Continued. 

N'aval  station;  superintendent  of  Naval  Observatory 

held  to  be,  391. 
Navy  yards — 

and  stations;  construction  onTiccr  not  eligible  for 
duty  as,  507. 
deck  courts  may  be  ordered  by,  1308. 
general  courts-martial  convened  by,  1442. 
oaths  administered  by,  1240. 
Line  officer  detailed  as,  779. 
Mare  Island,  pay,  815. 
Marine  ofTicer  ineUgible,  955. 
C030IANDEERING: 
See  Condcmnalion. 

Coal  in  Alaska  for  Army  and  Navy,  1307. 
Factories,  vessels,  etc.,  during  war,  1475,  1476. 
Merchant  vessels  for  use  as  transports  or  cruisers,  1218. 
Ocean  mail  vessels  for  use  as  transports  or  cruisers,  1217. 
SuppUes  in  time  of  war,  1413. 
Vessels  for  naval  purposes,  1467. 
COMMANDER  IX  CHIEF: 

Fleet  or  squadron;  general  courts-martial  may  be  con- 
vened by,  1310. 
rank  authorized,  1481. 
Oaths  may  be  administered  by  for  purposes  of  naval 

administration,  1240. 
President's  power,. 81-83,  773. 

can  not  be  restricted  by  Congress,  58,  59,  81,  578. 
restricted  by  Congress;  appropriations,  954. 
President  to  assign  command  of  naval  vessels  and 

squadrons,  772,  775,  1277. 
Secretary  of  the  Navy  executes  orders  of  President,  342. 
Subordinate  can  not  be  made  independent  of  Presi- 
dent, 82. 
C01M3I  ANDERS: 

Number  in  staff  corps,  1427,  1428. 

Pay,  791,  798,  1301,  1302. 

Promotion  by  selection  to;  in  staff  corps,  1513. 

in  line  of  Navy,  1430. 
Proportion  of  in  line,  1425. 
Rank  with  lieutenant  colonels,  662. 
Retirement  of,  for  purpose  of  creating  vacancies,  1265. 
COMMANDING  OFFICERS: 

See  Articles  for  the  government  of  the  Navy. 
Absence  from  command;  power  to  convene  courts- 
martial  during,  1015. 
Acquittal  by  court-martial  not  a  bar  to  suit  against, 

for  damages,  1049. 
Acting;  punishments  inflicted  by,  1005. 
Aid  or  executive  of,  669. 

Assignment  of  wages  by  enlisted  men;  power  of  attor- 
ney attested  by,  892. 
BattaUons;  summary  court-martial  ordered  by,  1441. 
Brigade;  general  courts-martial  convened  by,  1442. 

summary  courts-martial  ordered  by,  1441. 
Civil  liability  for  abuse  of  power,  1003. 
Combinations  against,  Navy,  984. 
Consular  powers  may  be  exercised  by,  575. 
Disbursements  made  by  order  of,  266. 
Discouraging  crews  from  selling  wages,  etc.,  573. 
Discretion,  1003. 

Divisions;  general  courts-martial  convened  by,  1442. 
Duty  to  send  men  to  the  United  States  on  expiration 

of  enlistments,  555,  .5.56. 
Empowered  by  Sec-retary  of  the  Navy  to  order  courts- 
martial,  1441,  1442. 
Fleets;  rank  of  admiral  and  vice  admiral  authorized, 

1481. 
Flotilla;  general  courts-martial  convened  by,  1442. 
Foreign  stations;  examining  and  retiring  boards  con- 
vened by,  1472. 


COrMANDING  OFFICERS— Continued. 
Granting  of  honorable  discharges  by,  573. 
Hospital  or  hospital  ship;  may  convene  courts  and 

inflict  punishments,  1441. 
Leave  of  absence  and  liberty  granted  by,  574. 
Marine  Corps;  deck  courts  ordered  by,  1308. 
Marriages  not  to  be  performed  by,  575. 
Naval  vessel;  authority  over  all  persons  on  board,  1442. 
deck  courts  may  be  ordered  by,  1 308. 
duties  of,  995,  9%. 
or  station;  duty  of  example  and  correction  ,  978,979. 

oaths  administered  by,  1240. 
niles  to  be  obeyed  by,  995,  9%. 
Not  required  to  act  as  paymaster,  574. 
Powers  of  attorney  attested  by;  assignment  of  wages, 

573. 
Precedence,  669. 

retired  officer  commanding  squadron,  660. 
Piuiislmients  by,  119,  1002,  1441. 

by;  duty  to  correct  subordinates,  978,  979. 
of;  for  offenses,  996. 
Rank  of  flag  officer,  576. 
Recommendation  of  warrant  officers  for  appointment 

as  ensigns,  1277. 
Regiment;  summary  courts-martial  ordered  by,  1 141, 
Reports  required  to  be  made  to  Secretary  of  the  Navy. 

995. 
Separate    or    detached    command;  summary    courts- 
martial  ordered  by,  1441. 
Short  allowance  of  rations;  report  to  Navy  Depart- 
ment, 901. 
Squadrons;  general  courts-martial  convened  by,  1442. 
Staff  officers  communicate  directly  with,  670. 
Summarj'  courts-martial  ordered  by,  1441. 
COMMERCE: 

Detail  of  naval  officers  to  foreign  countries  in  interest 
of,  576. 
COMMERCE  AND  NAVIGATION: 

General  provisions  relating  to,  112.5-1131. 
COMMISSARY: 

Fimd,  midshipmen's,  771. 
Officer,  commutation  of  rations  paid  to,  1279. 
COMMISSION: 

See  Appointments;  Date;  Precedence. 

Advancement  in  rank  without  change  in  grade,  102, 

682,  1368. 
Brevet,  Marine  Corps,  931-933. 
Date  of,  103. 
defined,  668. 
fictitious  date,  669. 
is  date  stated  in,  652. 
midshipmen  on  graduation,  1479. 
precedence  determined  by,  1390. 
Coast  Guard  and  Navy,  14.56. 
dental  officers,  1421. 
line  officers,  668. 
Naval  Reserve  Force,  1511. 
staff  officers,  1429. 
promotion,  officers.  Navy,  1390. 
Date  stated  in;  conclusive  upon  accounting  officers, 
238. 
pay,   officers   graduated  from   Naval   Academy, 

1221,  1222. 
retired  officer,  912. 
Fine  arts;  duties,  etc.,  1559,  1560. 
Decisions  relating  to,  102,  103. 
Errors  in,  685. 
corrected,  103. 
issuing;  nail  and  void,  103. 
jurisdiction  of  courts  to  correct,  834,  835. 
Expenses  of  commissions  and  inquiries  not  to  be  al- 
lowed, without  special  appropriation,  1105,  1316. 


1590 


IXDEX. 


COMIVIISSION— Continued. 

Fine  arts;  duties,  etc.,  1559,  1560. 
Form  of,  1248. 

recess  appointment,  217. 
Governors  of  Guam  and  Tutuila,  102. 
Midshipmen  on  graduation;  date  of,  1479. 
Naval  Reserve  Force,  1444, 1451. 
Naval  vessels  kept  in  conxmission  in  time  of  peace,  774. 

stricken  from  register;  status  of,  779. 
Navy  Department  to  prepare,  record,  and  affix  seal  to, 

1248. 
Numbering  of,  for  precedence  purposes,  669. 
Passed  assistant  surgeons  to  have,  1251. 
Pay  on  promotion  from  date  stated  in,  830-832. 
President's  duty  to  issue,  102. 
President  to  sign  before  department  seal  annexed, 

1248. 
Retired  officers  advanced  in  rank,  1368. 
Revocation  of  recess  appointment,  100. 
Seal  of  department  affixed  to,  1248. 
Senate  adjourned;  officers  previously  confirmed,  1072. 
Signature  of  President  required  before  departmental 

seal  annexed,  1248. 
Signed  by  Secretary  of  the  Navy,  102. 
Staff  officers;  titles  and  grades  contained  in,  680. 
Testimony  taken  by,  421. 

authority  to  require  production  of  records,  423. 
chiefs  of  bureaus  as  witnesses,  424. 
for  Court  of  Claims,  1364. 
Unauthorized  commissions  and  inquiries;  expenses  of 

not  payable,  1105, 1316. 
Withholding;  after  confirmation,  102. 
officer  appointed  to  higher  grade,  652. 
CO>13iISSIONED  OFFICERS: 

See  Line  offlcers;  Officers  of  the  Marine  Corps;  Officers 

of  the  Navy;  Retired  officers;  Staff  officers. 
Defined  to  include  warrant  officers,  1496. 
Warrant  officers  are  not,  511. 
COMMISSIOXED  WARR.WT  OFFICERS: 
Appointed  to  higher  grades  for  war  service,  1550. 

may  revert  to  former  status,  1550,  1551. 
Chief  warrant  officers  designated  as,  512. 
Command,  right  of,  1267. 
Ensigns  appointed  from,  1314. 
Pay— 

And  allowances,  803,  1267,  1429,  1430. 

of  lieutenant  (junior  grade)  and   lieutenant; 

creditable  records,  1429,  1430. 
not  reduced  by  act  of  August  29,  1916, 1437. 
Quarters,  1267. 
Rank,  1267,  1314, 
Retired;  active  duty;  pay,  914. 

creditable  records,  etc.,  1503,  1504. 
increased  by,  913. 
Warrant  officers  promoted  to,  510,  1266,  1267,  1282, 
1314,  1406,  1407,  1419,  1420. 
C03IMISSI0NER  OF  PATENTS: 

Departments  interested  to  have  representative  before, 

1251. 
Inventions  may  be  ordered  kept  secret  during  war, 

1494. 
Withholding  of  patent  during  war,  1501. 
COMMISSIONER  OF  PENSIONS: 
Duties  of,  390. 
Jurisdiction — 

Of,  and  Secretary  of  the  Navy,  1155. 
Retirement  of  ci\al  employees,  1538. 
COMMITMENT: 

Insane  personnel.  Navy,  to  hospitals,  788,  789. 
COMMITTEE: 

Insane  persons;  pensions  not  payabe  to,  789. 


COMMODORE: 

Grade  abolished  on  the  active  list,  447,  663,  664. 
Omitted  from  grades  of  line  officers,  1264. 
Pay,  791,  798,  1301. 

retired  list,  1307. 
Rank- 
Changed  to  rear  admiral,  375,  672. 
Retired  staff  officers,  085. 
With  brigadier  generals,  662. 
Retirement  of,  1265. 

with  rank  of,  374,  375, 1265, 1266. 
COMMUTATION: 

Artificial  limbs,  1156,  1157,  1217. 
Defined,  902,  953,  954. 

is  an  allowance  and  not  pay,  953. 

emolument,  892. 
is  compensation,  701,  702. 
not  pay  proper,  702. 
reimbursement,  702. 
salary,  702. 
Forage;  Marine  Corps,  not  aUowed,  1194. 

naval  officers  not  aUowed,  1267. 
Nurse  Corps  (female)  allowed,  1482. 
Quarters,  697,  702. 

agreement  for  exchange  of  quarters;  unauthorized, 

702. 
amount  of,  942  943. 

application  for  quarters,  necessity  of,  702. 
arrest;  officer  undergoing  trial  by  court-martial  or 

civil  authorities,  700,  701. 
duty  without  troops;  definition  of,  702. 
educational  institution;  officer  detailed  to,  701. 
home,  officer  waiting  orders  or  performing  duty  at, 

700. 
mates,  same  as  second  lieutenants,  697,  827, 1275. 
officer  attached  to  vessel,  699. 

interned  in  neutral  coimtry,  892. 
retired  officers  detailed    to  educational   institu- 
tions, 440. 
Secretary   of  Navy   to   determine   when   public 

quarters  not  available,  1514. 
temporarily  absent  from  station,  701. 
waiting  orders,  700. 

warrant  officers,  same  as  second  lieutenants,  697, 
827,  1275. 
Rations,  893. 

aUowed  enlisted  men  and  naval  cadets  (midship- 
men), 1194. 
amount  of,  901,  902. 
court-martial  prisoners,  898. 
Nurse  Corps,  female,  807,  808. 
officers  attached  to  seagoing  vessel,  893-895. 
payment  to  commissary  officer,  902. 

to  messes,  1279. 
public  money,  232. 
Sentence — 

Court-martial;    definition    of;    mitigation   distin- 
guished, 85,  1054. 
President's  power,  1053-1054. 
Deck  court,  1308. 
General  court-martial,  1051-1055. 
Offlcers  dismissed  in  commutation  of  sentence,  441 
Summary  court-martial,  1009. 
Specific  statutory  authority  required  for  payment  of, 

950. 
Tickets;  payment  for  in  advance  of  travel,  1282. 
COMPANIES: 

Marine  Corps,  936. 
COMPENSATION : 

See  Effects;  Pay  of  Civil  Esiablishmerti;  Pay  of  Navai 
Establishment;  Veteranx;  War  Risk  Act. 


1591 


INDEX. 


COMPENSATION— Continued. 

Defined;  quarters,  heal  and  lipht,  commutation:  in- 
cluded, 701,  702. 
COMPKTITIVE  EX.\MIN.\TIONS: 

Appointments  depondinj;  on  results,  94. 
Assistant  surgeons;  requirement  held  illegal,  465,  466. 
Candidates  for  machinist  in  Navy,  r2<'>s,  1269. 
Enlisted  men  for  appointment  as  midshipmen,  1472, 

1473. 
Marine  Corps;  to  determine  precedence,  1462. 
Promotion;  not  authorized,  685. 
Warrant  officers  for  appointment  as  ensign,  1277. 
COMPLIMENTS: 

Public  documents  not  to  be  distributed  with,  1236. 
COMPTROLLER  OF  THE  TREASURY: 

See  Accounting  officers. 
COMPUTATIONS: 

Marine  Corps;  distribution  in  rank,  145S. 
final  fractions,  920,  921,  1428. 
major  general  commandant  counted  as  senior  to 

colonel,  1459. 
senior  staff  officers  counted  as  colonels,  1460. 
Navy;  additional  niunbcrs  excluded,  1429. 
disposition  of  final  fractions,  1428, 1429. 
times  for  making,  1529. 

to  determine  niunber  in  each  rank  and  grade,  1427. 
COMPUTING  MACHINES: 

Sale  to  departments  at  exchange  prices  by  General 
Supply  Committee,  1557. 
CONCEAL: 

Definition  of,  790. 
CONCURRENT  JURISDICTION: 

Courts-martial  and  civil  courts,  1001. 
CONDEMNATION: 
See  Commandeering. 
Lands — 

Expense  of  suit;  appropriation  available,  295. 
For  military  piUTioses,  1490,  1491. 
For  public  buildings,  etc.,  1199. 
Title  to  and  jurisdiction  over,  284,  285. 
Timber,  material,  supplies,  etc.,  for  the  Navy,  1518. 
CONDITIONAL: 

Pardon,  86. 
CONDUCT: 

Commanding  oflJcers  to  inspect  conduct  of  subordi- 
nates, 978,  979. 
Eminent  and  conspicuous,  marine  officer,  933. 
Enlisted  men  in  battle;  reward  for,  1275. 
In  battle;   advancement  of  naval  officer  for,  453,  454, 
734-736. 
thanks  of  Congress  for;  advancement  to  higher 
grade,  736. 
Retainer  pay,  Naval  Reserve  Force,  increased  for  good- 
conduct  marks,  1450. 
Scandalous;  punishment  for,  Na\'y,  998. 
To  the  prejudice  of  good  order  and  discipline,  1000. 
Unbecoming  an  officer  and  a  gentleman,  625,  998-1000. 
CONFESSION: 

Evidence  of,  123. 
CONFIDENTIAL: 

Books,  plans,  etc.;  punishment  for  losing,  1483. 
Information;  departments   not   required   to  furnish. 

Court  of  Claims,  221. 
Plans;  filing  of  in  returns  office,  397. 
Records  of  departments,  194. 
CONFINEMENT: 

Acting  commanding  officer  may  inflict  as  punish- 
ment, 1005. 
Commanding  officer  may  inflict  as  punishment,  1002. 
Deck  courts  may  adjudge;  limited,  1308. 


CONFINEMENT— Continued. 

Naval  officer  under  arrest  to  confine  himself  to  certain 

limits,  1029. 
On  bread  and  water;  commanding  officer  may  inflict. 
1002. 
summary  court-martial  may  adjudge,  100(i. 
Solitary;  summary  court-martial  may  adjudge,  1006. 
Witnesses,  to  insure  appearance,  425,  426. 
CONFIRMATION: 

See  Appointment;  Sentences. 

Court-martial  sentence,  before  execution,  1036-1051 . 

Ineligible;  effect  of,  96. 

Naval  Reserve  Force;  requirements,  1444,  144."),  1452, 

1453,  14,54. 
Senate,  appointments;  constitutional  provisions  relat- 
ing to,  89. 
assent  to  appointment  indirectly  given,  96,  652. 
CONFISCATION: 

Enemy  property,  40. 
CONFLICT: 

Highly  distinguished  conduct  in  conflict  with  enemy; 

thanks  of  Congress,  736. 
Of  laws;  bonds,  490-491. 
CONFRONTING  WITNESSES: 
Right  of  accused,  129,  131,  132. 
Waiver  of  right  by  accused,  132. 
CONGRESS: 

See  Members  of  Congress;  Senate;  Senators. 
Accounting  officers'  action  not  binding  on,  247. 
Appointments — 

And  promotions;  constitutionality  of  statutes,  647, 

648,681. 
Can  not  control  appointing  power,  92. 
Can  not  exercise  appointing  power,  92. 
Can  not  require  President  to  make,  767. 
May  prescribe  general  qualifications,  95. 
Attorney  General  can  not  advise,  281. 

wiU  not  render  opinions  for  information  of,  303. 
Bills  and  resolutions;  distribution   to  departments, 

1238. 
Can  not  interfere  with  powers  of  President,  58. 
Command;  can  not  interfere  with  President's  power, 
81,  578. 
restrictions  upon  President's  power,  954. 
Constitutionality  of  statutes  relating  to  retirement,  617. 
Correspondence  with;  penalty  envelopes  to  be  inclosed 

with  letters  from  departments,  1191. 
Court-martial  proceedings  re\'iewed  by,  1047. 
Extra  clerks  employed  in  departments  during  ses- 
sions of,  208. 
Influencing  legislation:  punishment   of  officers   and 

employees  violating  law  against,  1527. 
Joint  committee  on  disposal  of  useless  papers,  execu- 
tive departments,  1202,  1203. 
Journals  of;  extracts  evidence  in  court,  428. 
Medals  of  honor  presented  in  name  of,  1521. 
Pardoning  power;  general  amnesty,  85. 
Pay  of  officers,  power  to  change,  97,  910,  911. 
Petitioning:  right  of  civil  employees,  1388. 
President  can  not  usurp  powers  of,  784. 
Rank  and  pay  of  officers  may  be  reduced  by,  97,  910, 

911. 
Reducing  number  of  officers  in  Army  and  Navy,  1011. 
Regulations,  naval  forces;  delegation  of  power,  787. 
Removal  of  officers,  635. 
Retired  officer;  elegibility  for,  643. 
Retirement   of  naval   officers;  cause  of,   can  not    be 

changed  by  statute,  620. 
Special  act,  designating  appointee,  held  unconstitu- 
tional, 93. 


1592 


IXDEX. 


CONGRESS— Continued. 

Statutes  enacted  by;  copies  furnished  departments, 

1235. 
Temporary  employees  in  office  of  Judge  Advocate 

General  during  sessions  of,  341. 
Thanks  of— 

Marine  officer  advanced  for  receiving,  933. 
Officer  promoted  for  receiving,  736. 
Officers  receiving  during  CivU  War,  594. 

may  be  advanced  to  rear  admiral,  454. 
Retired  officer  recei^'ing,  restored  to  active  list, 
660,  661. 
Witnesses  before;  protection  of,  421. 
CONGRESSIONAL  DIRECTORY: 

Printing  and  distribution  of,  1235. 
CONGRESSIONAL,  RECORD: 

Daily  examination  of  to  be  made  in  departments,  1238. 
Navy  Department  and  Naval  Observatory  furnished 
with,  1235. 
CONQUERED  TERRITORY: 

Government  of,  109. 
CONSCRIPTION: 

Power  of  Congress,  47,  70. 
CONSENT: 

Accused;  does  not  confer  jurisdiction,  125,  977,  1033. 
Enlistment  of  minors,  544,  545,  54.S-551. 

guardianship  papers  prepared  by  register  of  wiUs, 
D.  C,  1217. 
Legislature    of   State;  lands    purchased    by    United 
States,  282. 
CONSIDERATIONS: 

Defined;  appointment  of  laborers  at  navy  yards,  780. 
CONSPICUOUS: 

Conduct  in  battle,  advancement  of  officers  for,  734-736, 
933. 
CONSPIRACY: 

Fraud  against  United  States,  990. 
Punishment  for,  1324. 
Seditious,  1317. 

To  commit  offense  agaiust  United  States,  1325. 
CONSTITUTION: 

Accused,  waiver  of  privileges,  121. 
AppHcatioQ  of,  lo  the  Navy,  68. 
Attorney  General  authorized  to  construe,  321. 
History  of,  27. 
Index  to,  143-181. 

Military  government  provided  for,  68. 
Statutes  contrary  to,  30,  95,  647,  648. 
Text  of,  30-142. 

Whether  applicable  to  Territories,  112. 
CONSTRUCTION: 

See  Buildings;  Statutes;  Vessels  of  the  Navy. 
CONSTRUCTION  AND  REPAIR; 

See  Bureaus;  Chief  constructor;  Chiefs  of  bureaus. 
CONSTRUCTION  CORPS: 

See  Naval  constructors;  Staff  officers. 
Additional  pay;  services  imder  War  Department,  507 
Advancement  in  rank  above  lieutenant  commander 
1513. 
up  to  lieutenant  commander,  1426. 
Appoiutments  in  to  fill  vacancies,  506,  1408,  1428. 

of  officer  as  chief  of  bureau,  378,  1222. 
Assistant  naval  constructors;  promotion  of,  1266. 

to  Chief  of  Bureau  of  Construction  and  Repair  de- 
tailed from,  1418. 
Chief  of  Bureau  of  Construction  and  Repair,  appoint- 
ment of,  378,  1222. 
Clerk  of  the  naval  constructor,  office  may  be  abolished, 

533. 
Command  in  the  Une  or  other  staff  corps,  508. 


CONSTRUCTION  CORPS— Continued. 
Detail  of  officers — 

As  aid  or  executive  at  navy  yard,  508,  779. 
As  commandant  of  navy  yard,  507,  779. 
To  duty  under  War  Department,  507,  579. 
To  inspect  ocean  mail  vessels,  1216. 
To  serve  on  boards  concerning  repairs  to  vessels, 
776. 
Distribution  of  officers  in  grades,  1427,  1428. 
Duties  of,  507-509,  1401. 

Number  of  officers  authorized,  505,  1266, 1408,  1425. 
Pay,  505,  793,  802. 

Promotion  of  assistant  naval  constructors,  1266. 
Rank  of  officers  in,  505,  677,  678, 1266. 
distribution,  1427. 
rear  admiral  authorized,  677. 
Transfer  of  ensigns  to  vacancies  in,  1428. 
of  line  officers  to,  1408. 
CONSTRUCTION   OF  STATUTES: 
See  Statutes. 
General  principles,  9-23. 
CONSTRUCTIVE: 

Pardon,  86,  573. 
CONSTRUCTIVE   SERVICE: 

Credited  to  naval  officers  for  pay  purposes,  1268. 

to  promoted  officer;  pay  from  date  of  rank,  838. 
Dental  officers  who  have  gained  or  lost  numbers,  1421 . 
EnUsted  men  discharged  three  months  prior  to  expi- 
ration of  enlistment,  1449. 
Longevity  pay,  officers,  Na\'y,  based  on,  821-823. 
Not  credited  to  officers  entering  Na\'y  after  March  4. 

1913;  1390. 
Precedence,  691,  694. 
CONSULAR: 

Courts;  naval  personnel  tried  by;  counsel  furnished, 
224. 
trial  of  capital  offenses  by,  69. 
Officers;  certificate  required  as  to  prevailing  prices; 
purchase  of  foreign  supplies,  1114. 
copies  of  records  admissible  in  court,  429. 
jurisdiction  of,  and  military  authorities,  57G. 
Powers;  commanding  officers  of  Navy  may  exercise, 

575. 
Service;  naval  officer  appointed  in,  vacates  office,  579. 
CONSULTATIONS: 

Medical  officers  of  fleets  and  squadrons,  466. 
CONTAGIOUS  DISEASES: 
See  Disease. 

Civil  employees  granted  leave  because  of,  1221. 
CONTE]\IPT: 

Court-martial  witnesses;  punishment,  1021,  1310. 
Courts  of  iaquiry  may  pimish,  1055. 
Of  court;  pardoning  power,  84. 

public  officer  refusing   to  obey  subpoena  or  to 
testify,  422,  424. 
Of  superior  officer,  punishment  for.  Navy,  984. 
Witnesses  in  departmental  investigations,  220. 
CONTINENTAL: 

Limits,  United  States;  convening  of  courts-martial  be- 
yond, 1310. 
shore  duty  beyond,  1275. 
CONTINGENT  FUNDS: 

See  A  ppropriations;  Estimates. 

Annual  report  of  expenditures  from,  226. 

Apportionment  of — 

Between  bureaus  by  heads  of  departments,  1384. 
To  avoid  deficiencies,  1104,  1105. 
Civil  establishment  not  to  be  employed  from,  without 

specific  authorization,  1105,  1188,  1384. 
Evidence  of  title;  expense  of  obtaining,  283. 
Expenditures- 
Jurisdiction  of  accounting  officers,  243. 


1593 


INDEX. 


CONTINGENT  FUNDS— Continued. 
Expenditures— Continued . 

Restricted;  written  order  of  head  of  department 
required,  1105,  1106. 
Expenses  of  commissions  and  inciuiries  not  to  be  paid 

from,  1105. 
Navy  Department;  estimates,  385. 
Navy:  expense  of  insane  patients,  789. 

use  of,  828. 
Official  and  clerical  compensation  not  payable  from, 

llfti,  ll.>vS  1384. 
Purchases  required  to  be  made  from,  1384. 
Restrictions  on  purchases  from:  newspapers,  books,  pe- 
riodicals, etc.,  1073. 
of  law  books,  books  of  reference,  and  periodicals, 
1261. 
CONTINUING: 

Odense;  desertion;  decisions  relating  to,  1060, 1061. 
Pimishment;  remission  of,  by  reviewing  authority, 
courts-martial,  1052,  1053. 
CONTINUOUS  SERVICE: 

Certificates;  issuance  of,  to  enlisted  men,  569. 
Pay;  definition  of,  8S6,  890. 

enlisted  men,  8S3-891,  1529,  1530. 
under  personnel  act,  1269. 
CONTRABAND  OF  WAR: 

Purchase  without  advertising  for  Navy,  1113, 1114. 
CONTRACTS: 

Accounting  officers;  originals  to  be  filed  in  offices  of, 
1118. 
to  be  notified  of  appointment  of  inspector,  weigher 

and  measurer  of  fuel,  1110. 
to  revise  settlements  by  Navy  Department,  1111. 
Accounts  of  agents  and  contractorsto  be  rendered,  1111. 
paymaster  on  foreign  station:  consular  certificate 
required  as  to  prices,  1114. 
Advances  of  public  money  restricted,  1099, 1100. 

to  contractors  as  work  progresses,  1369. 
Advertising;   bunting   may   be   purchased   in   open 
market,  1115. 
by  firms,  corporations,  etc.,  practicing  before  de- 
partments, 1411. 
copies  of  to  be  filed  in  returns  office.  Interior  De- 
partment, Ills,  1119. 
for  foreign  supplies,  1114. 
for  gim  steel  or  armor  for  Navy,  1223. 
for  proposals,  1109. 

by  Secretary  of  the  Navy,  1111. 
not  required  in  emergencies,  1109. 
sale  of  useless  papers  on  naval  vessels,  1381. 
newspapers,  1123. 
for  proposals,  1111. 
written  authority  required,  1124. 
not  required  for  purchase  of  certain  naval  suppUes, 
1113,  1114. 
material  for  steam  boilers.  Navy,  11S2. 
open  market  purchases  and  procurement  of  serv- 
ices, without,  1299. 
rates  paid  for,  11S4. 

District  of  Columbia,  11S7. 
sale  of  useless  papers  at  na^-y  yards  and  stations, 

1401. 
tobacco  for  Navy,  1250. 
Agents  and  contractors  to  render  accounts  tor  settle- 
ment, 1111. 
American  articles  preferred  for  Navy,  1115. 
bunting;  purchase  of,  in  open  market,  1115. 
growth  or  manufacture  preferred;  hemp  for  Navy, 
1115. 


CONTRACTS— Continued. 

American  steel  to  be  used  in  construction  of  naval 

vessels,  1195. 
Annual  report  to  Congress  of  proposals  submitted,  1 113. 
Appointment  of  inspector,  weigher,  and  measurer  of 
fuel,  1110. 
officers  to  make,  for  Navy,  1118, 1119. 
Appropriations — 

Available  after  fiscal  year,  1107. 

Inadequate,  1116. 

Not  to  be  exceeded,  1104,  1116, 1288,  1297,  1331. 

exceptions,  1288. 
Overobligated;  butter  and  cheese  for  periods  more 
than  one  year,  1113. 
public  buildings  and  improvements,  1116. 
tobacco  for  four  year  periods,  1113. 
Armor  or  gun  steel,  Navy;  advertising  and  competi- 
tion required,  1223. 
Arrest  for ;  marines  exempt  from,  935. 
Assignment  of,  unauthorized,  1117. 
Attorney  General  will  not  render  opinions  for  infor- 
mation of  contractors,  303. 
Attorneys  for  parties  submitting  bids  may  be  present 

when  opened,  1110. 
Authority  of  law  required  for  making,  1288, 1297. 
Award  of — 

Ry  items,  to  lowest  responsible  bidder.  Navy,  1390. 
Satisfactory  security  for  performance  required, 

1111. 
Tobacco,  Navy,  according  to  samples,  1250. 
Tolowest  bidder,  1111. 

for  foreign  supplies,  1114. 
Bidders;  certified  check  accepted  in  lieu  of  written 
guaranty,  1298. 
f  aiUiig  to  furnish  required  bond  in  specified  time, 

1112, 1113. 
lowest  on  each  item  awarded  contract  for  Na\-y 

provisions,  1390. 
may  be  present  at  tests  of  steam  boUers,  1182, 1183. 
must  furnish  satisfactory  security  for  performance, 

nil. 
required  to  furnish  guarantee  with  proposal,  1112; 
1113. 
to  submit  samples  of  tobacco  with  proposals, 
1250. 
Bids- 
Advertising  required  for  foreign  supplies,  1114. 
Competitors  may  inspect,  1114. 
Copies  of,  to  be  filed  in  Returns  Office,  Interior 

Department,  1118. 
Defaulters  in  previous  contract  rejected,  1114. 
Having  nominal  or  fictitious  prices  not  considered, 

1114. 
Inspection  of  by  parties,  1114. 
Lowest  bidder  t  o  furnish  supplies  and  transporta- 
tion for  Navy,  1111. 
Lowest  to  be  awarded  contract  for  foreign  supplies, 

1114. 
Manufactiu-er  or  regular  dealer,  1114. 
More  thau  one  by  same  party,  in  different  names; 

all  rejected,  1114. 
Not  required  for  certain  naval  supplies,  1113. 
Obtained  without  advertising;  material  for  steam 

boilers,  1182. 
Opened  in  presence  of  Secretary  of  the  Navy  and 

bureau  chiefs;    foreign  supplies,  1114. 
Opening  of,  for  naval  contracts,  1111. 
in  presence  of  parties,  1110, 1114. 
Rejected  for  specified  causes,  1114. 
Shells  and  projectiles  for  Navy,  1395,  1396. 


1594 


INDEX. 


CONTRACTS— Continued . 
Bids— Continued . 

Time  and  place  of  opening  to  be  communicated  to 

parties,  1110. 
To  be  preserved  and  recorded,  and  reported  an. 
nually  to  Congress,  1113. 
recorded  at  time  of  opening,  1110. 
Blank  forms  to  be  furnished  officer  making,  1119. 
Board  of  naval  officers  to  inspect  samples  of  tobacco, 

1250. 
Bonds;  certified  check  accepted  in  lieu  of,  1298. 
contractors  required  to  furnish,  1112, 1113. 
copartners  not  received  as  sureties  for  each  other, 

1114. 
defaulters  in  previous  contracts  not  received  as 

sureties,  1114. 
Liberty  or  other  United  States  issues  accepted  in 

lieu  of  sureties,  1523,  1524. 
not  required,  where  amount  less  than  $500;  1299. 
one  contractor  not  received  as  surety  for  another, 

1114. 
suit  against  sureties  for  liquidated  damages,  1113. 
sureties  defaulting;  subsequent  bids  by,  rejected, 
1114. 
Bread;  baking  of,  under  naval  supervision,  1115. 
Buildings;  site  not  to  be  purchased  or  contracted  for 

without  specific  appropriation,  1116. 
Bunting,  purchase  in  open  market  of  American  manu' 
facture,  1115. 
purchase  without  advertising,  1113. 
Bureau  chiefs;  contracts  by,  to  be  executed  in  foreign 
country,  1114. 
may  reject  bids  for  specified  causes,  1114. 
to  be  present  at  opening  of  bids  for  foreign  sup. 

plies,  1114. 
to  furnish  printed  schedules  to  bidders,  Navy,  1111. 
Butter;  may  be  made  for  more  than  one  year,  1113. 
purchase  for  Navy,  1115. 

without  advertising,  1113. 
Cancellation  by  consent  of  Navy  Department;  pay- 
ment of  reservation,  1115, 1116. 
during,  war,  1475, 1476. 
terms  relating  to,  are  binding,  361. 
Certified  check  in   lieu    of  bonds;   naval    supplies 

1298. 
Changes  in,  1197. 

during  war,  1475, 1476. 

time  of  delivery,  by  consent  of  Navj'  Department, 
1115, 1116. 
Cheese;  may  be  made  for  more  than  one  year,  1113. 

purchase  without  advertising,  1113. 
Clothing;   advertising  for  proposals,  1111. 

purchase  of  in  excess  of  appropriations,  1116, 1288. 
Coal- 
In  Alaska;  preference  right  to  purchase  for  Army 

and  Navy,  1307. 
To  beinspected  and  weighed  before deUvery,  1110. 
To  weigh  2,240  pounds  to  ton,  1110. 
Transportation  of,  by  sea,  American  vessels,  1283 
Commandeering  coal  in  Alaska  for  Army  and  Navy, 
1307. 
factories,  etc.,  during  war,  1475,  1476. 
merchant  vessels  for  use  as  transports  or  cruisers, 

1218. 
ocean  mail  vessels  for  use  as  transports  orcruiseis 

1217. 
supplies  in  t  ime  of  war,  1413. 
vessels  for  naval  purposes,  1467. 
Competing  bidders  have  right  to  inspect  bids,  1114. 
Confidential  plans  relating  to;    filing  of  in  returns 
office,  397. 


CONTRACTS— Continued. 

Congress  to  be  furnished  annual  report  of  proposals, 

1113. 
Consular  certificate  required  as  to  prevaiUng  prices^ 

contracts  for  foreign  suppUes,  1114. 
Contraband  of  war;    purchase  without  advertising, 

1113,  1114. 
Contractors — 

And  agents  to  render  accounts  for  settlement,  1111. 
Court-martial  jurisdiction  over,  62,  64. 
Defaulting;  subsequent  bids  rejected,  1114. 
Name  must  appear  on  naval  suppUcs,  1116. 
Not  received  as  sureties  for  each  other,  1114. 
PubUc  property  deUvered  to,  in  part  payment,  778. 
Receiver  appointed;   status  of  vessel  under  con- 
struction, 773. 
State  interference  with,  49. 

To  protect  laborers  and  material  men,  public 

works,  1227,  1228. 

Copartners  not  received  as  sureties  for  each  other,  1114. 

Copies  of,  certified  by  returns  office,  evidence  in  court, 

428. 

and  of  bids,  proposals,  advertisements,  etc.,  to  be 

filed  in  returns  office,  397,  1118,  1119. 
for  use  in  suits,  427,  428. 
furnished  by  returns  office,  398. 
furnished  laborers  and  material  men  on  public 
works,  1227,  1228. 
Court-martial  jurisdiction  over  contractors,  62,  64. 
Creditors  entitled  to  sue  for  labor  and  material  fur- 
nished, 1227,  1228. 
Damages;  deUnquent  bidder  charged  with  difference 
in  cost,  1112,  1113. 
delinquent  contractor  liable  to,  1113. 
forfeiture  of  double  contract  price  for  nonperform- 
ance, 1111. 
Date  of  delivery  to  be  communicated  to  prospective 

bidders,  1111. 
Dealers;  bids  submitted  by  persons  who  are  not,  1114, 
furnished  specifications  for  steam  boilers,  1182. 
1183. 
Defaulting  principal  or  surety;  subsequent  bids  of 

rejected,  1114. 
Deficiency  in  appropriation;  naval  suppUes  may  be 

piu^chased,  1116. 
Delay  in  completing  deliveries;  payment  of  reserva- 
tion, 1116. 
DeUnquency;  forfeiture  of  double  contract  price,  1111. 
principal  or  surety;  ground  for  rejecting  subsequent 
bids,  1114. 
Delinquent  bidder;  failure  to  furnish  required  bond, 
1112,  1113. 
contractor;  liquidated  damages,  1113. 
Delivery  completed  after  time  required;  payment  of 
reservation,  1115, 1116. 
of  naval  suppUes;  date  of,  to  be  communicated  to 

prospective  bidders,  1111. 
of  specified  quantity  shall  be  required  by,  1114. 
payment  of  10  per  cent  reservation,  1115,  1116. 
Desiccated  vegetables;  purchase  of  for  Navy,  1115. 
Disbursing  officers  not  allowed  credit  for  payment  for 

fuel  without  certificate,  1110,  1111. 
Dissolved  by  consent  of  Navy  Department;  payment 

of  reservation,  1115,  1116. 
District  of  Columbia;  fuel  to  be  inspected,  weighed, 

and  measured  before  delivery,  1110. 
Domestic  steel  to  be  used  in  construction  of  naval 

vessels,  1195. 
Eight-hour  law — 

Requirements  for  Government  work,  1117,  1219, 
1220. 


54641°— 22- 


-101 


1595 


INDEX. 


COXTRACTS-Continued . 
Kight-hour  law— Continued. 

Stipulations  concerning,  1370,  1371. 
Suspension  of,  in  national  emergency,  1474. 
Emergency  not  permitting  of  adverti-sing  for  supplies 
or  services,  1109. 
purchases  abroad  of  war  material,  1396. 
Enlistment;  may  be  extended  by  Congress,  543. 
Envelopes  for  departments;  Postmaster  General  to 

procure,  1259,  1240,  1291. 
Exceeding  appropriations  restricted,  1104,  1116,  1288, 

1297,  1331. 
Excessive  bids  rejected,  1114. 

Executive  departments;  General  Supply  Committee  to 
make,  1358. 
not  to  make  for  supplies  for  longer  than  one  year, 

1117. 
or  bureau  procuring  services  or  supplies  for  another, 
1536. 
Extension  of;  pa3rment  of  10  per  cent  reservation,  1115, 

1116. 
Fictitious  or  nominal  prices  in  bids,  1114. 
Filing  of  in  offices  of  accounting  officers,  1118. 
Firms;  members  of  not  received  as  sureties  for,  1114. 
Flour  for  Navy,  1115. 

Fodder,  transportation  in  American  vessels,  1283. 
Forage;  purchase  of  in  excess  of  appropriations,  1116, 

1288. 
Foreign  country,  to  be  executed  in,  1114. 
hemp;  purchase  of  for  Navy,  1115. 
stations;  purchase  of  supplies  for  without  adver- 
tising, 1113. 
steel  not  to  be  used  in  naval  vessels,  1195. 
supplies;  certificate  of  consul  required  as  to  pre- 
vaOing  prices,  1114. 
United  States  articles  preferred  to,  1115. 
war  material;  purchase  for  Navy;  duty,  1396,  1408. 
Forfeiture  of  double  contract  price  for  nonperformance, 
nil. 
of  penalty  by  delinquent  contractor,  1113. 
Form — 

Condition  that  Members  of  Congress  not  interested 

in,  1118. 
Eight-hour  provision,  1370,  1371. 
Guarantee  to  accompany  proposals,  1112,  1113. 
Printed  blanks  to  be  furnished  officers  making, 

1119. 
Return  for  filing  in  returns  office,  1119. 
Shall  provide  for  a  lien  in  favor  of  Government, 
1369. 
require  delivery  of  specified  quantity,  1114. 
Written  and  signed,  1118,  1119. 
Fraudulent;  duty  of  head  of  department,  352. 
Fuel- 
Departments;  purchase  in  advance  of  appropria- 
tions, 1553. 
Secretary  of  Interior  to  make,  1507. 
Inspector,  weigher,  and  measurer  of,  1110. 
Navy;  exceeding  appropriations  for,  1288. 
in  District  of  Columbia,  1530. 
power  of  Secretary  of  the  Navy  as  to  purchase, 
1115. 
Purchase  of  in  excess  of  appropriations,  1116. 
Furniture  for  buildings;  appropriation  not  to  be  ex- 
ceeded, 1116. 
General  provisions  relating  to,  352,  353,  354,  1109-1119. 
General  Supply  Committee;  duties,  etc.,  1.3.58. 
Guarantor  charged  with  damages  where  bidder  delin- 
quent, 1112,  1113. 
Guaranty;  certified  check  accepted  from  bidders  in 
lieu  of,  1298. 


CONTRACTS— Continued . 

Guaranty;  contractors    required   to  furnish  satisfac- 
tory security,  1111. 
required  of  bidders,  to  accompany  proposals,  1112, 
1113. 
Gunpowder  purchased  without  advertising,  1113. 
Gun  steel  or  armor.  Navy;  adverti.sing  and  competi- 
tion required,  1223. 
Head  of  department's  duties  respecting,  352. 
Hemp;  American  growth    or   manufacture  preferred, 
1115. 
Navy;  advertising  for  proposals,  1111. 
Home  growth  or  manufacture  preferred  for  Navy,  1115. 
Hospital  supplies;  purchase  of  in  excess  of  appropria- 
tions, 1116,  1288. 
Impairing  obligation  of,  76-77. 
Indexes  of;  kept  by  returns  office,  398. 
Inspection  of  bids  by  parties,  1114. 
Inspectors  of  fuel,  1110. 
Instructions  to  be  furnished  officers  appointed  to  make, 

1119. 
Interested  parties  not  to  act  as  Government  agents, 

1326. 
Laborers  and  material  men;  protection  of  1227,  1228. 
Land  not  to  be  purchased  without  a  specific  law 

authorizing,  1117. 
Law  governing;  official  bonds,  490,  491. 
Lease  of  lands  for  use  of  Navy;   improvements  to  be- 
come property  of  lessor,  1508. 
Liquidated  damages- 
Forfeiture  by  delinquent  contractor,  1113. 

of  double  contract  price  for  non])erformance, 

nil. 

Lowest  bidder;  certain  naval  supplies  not  required  to 
be  purchased  from,  1113,  1114. 
contracts  awarded  to  by  items,  Navy,  1390. 
for  foreign  supplies  shaU  receive,  1114. 
tobacco  for   Navy  purchased  from  bidder  sub- 
mitting best  sample,  1250. 
to  furnish  supplies  and  transportation  for  Navy, 
nil. 
Manufacturers — 

And  regular  dealers;  persons  qualified  to  bid,  1114. 
Furmshed  specifications  for  steam  boilers,  1182. 
Material  men;  protection  of,  1227,  122S. 
Measurer  of  fuel  wood,  1110. 
Meats,  preserved;  purchase  of  for  Navy,  1115. 
Medical  supplies- 
Procurement  of,  for  fleets  and  squadrons,  466. 
Purchase  of,  in  excess  of  appropriations,  1116, 1288. 
medicines  without  advertising,  1113. 
Members  of  Congress- 
Interested  in;  punishment,  1333,  1334. 
Not  to  have  interest;  stipulation  in  contract,  1118. 
Taking  consideration  for  procuring,  1332,  1333. 
Name  of  contractor  to  appear  on  naval  supplies,  1116. 
Naval;   accounts  to  be  rendered  by  contractors  and 
agents,  1111. 
advertising  not  required  for  certain  articles,  1113, 

1114. 
annual  report  of  bids  and,  381. 
chief  officer  of  department  to  make  or  direct,  1111. 
chiefs  of  bureaus  to  furnish  printed  schedules  to 

bidders,  nil. 
copies  filed  in  returns  office,  397. 
duties  of  bureaus  respecting,  359,  360. 
general  provisions  relating  to,  1111-1116. 
officers  empowered  to  make,  1111. 

prohibited   from   private   employment    with 
certain  contractors,  1250. 
petroleum  reserves;  development  of,  1545. 


1596 


INDEX. 


CONTRACTS— Continued. 

Naval;  purchases  and  contracts  for  supplies  and  serv- 
ices, 1111. 
supplies;  purchase,  1216. 

and  transportation;  advertising  for  proposals, 

1111. 
purchase  in  excess  of  appropriations  permitted , 
1116, 1288. 
supply  account  fund  charged  with  cost  of  stores 
procured;    adjustments  made  on  outstanding 
contracts  or  orders,  1557. 
transportation  in  American  vessels,  12S3. 
vessels;  domestic  steel  to  be  used,  1195. 
general  provisions,  1195-1197. 
Navy  orders;  proeiu-ement  of  vessels,  etc.,  during  war, 

1413,  1475,  1476. 
Newspaper  advertising;  District  of  Columbia,  1123, 
1187. 
for  foreign  suppUes,  1114. 
for  proposals,  1111. 
rates  paid  for,  1184. 
written  authority  required  for,  1124. 
Nominal  or  fictitious  prices  in  bids;    not  considered, 

1114. 
Numbering  of  copies  filed  in  returns  office,  lllS,  1119. 
Oath  of  officer  making  return  for  filing  in  returns  office, 

1119. 
Obligating  government  beyond  appropriations,  re- 
stricted, 1104,  1116,  1288,  1331. 
Office  not  held  by  contract,  124. 
Officers  appointed  to  make  shall  be  furnished  instruc- 
tions, blank  forms,  etc.,  1119. 
empowered  to  make  for  naval  service,  1111. 
making  not  to  receive  benefit  or  to  corruptly 
benefit  others,  1119. 
to  append  signatures,  etc.,  1118. 
right  to  salary,  97. 
Opening  of  bids,  1110. 

for  foreign  supplies;    presence  of  Secretary  and 

bureau  chiefs,  1114. 
for  naval  supplies  and  transportation,  1111. 
in  presence  of  parties,  1114. 
Open-market — 

Purchases,  naval  supplies,  1299. 

or   procurement    of   services    authorized    in 
emergencies,  1109. 
Services  procured  in,  1299. 
Operation  of  law,  termination  by;  payment  of  reserva- 
tion, 1115, 1116. 
Ordnance  purchased  without  advertising,  1113. 
Originals  of;  deposited  in  offices  of  accounting  officers, 

1118. 
Overobligattng  appropriations  restncted,  1104,  1116, 

1288, 1331. 
Panama  RaUroad,  1368. 
Partial  payments  authorized.  Navy,  1369. 
Payments;  advanced  as  work  progresses,  1369. 
advances  of  public  money  restricted,  1099, 1100. 
agents  and  contractors  to  render  accounts  for  set- 
tlement, nil. 
appropriations  available  after  fiscal  year,  1107. 
for  fuel  not  allowed  without  certificate,  1110,  1111. 
public  property  delivered  as  part  pa3mient,  778. 
ten  per  cent  reservation,  1115. 
to  laborers  and  material  men;  contractors  to  give 
security  for,  1227,  1228. 
Penalty — 

Delinquent  bidder  charged  with  difference  in  cost, 

1112,  1113. 
For  defaulting;  subsequent  bids  rejected,  1114. 


CONTRACTS— Continued. 
Penalty— Continued . 

For  nonperformance;  forfeiture  of  double  contract 
price,  nil. 
omitting  return  for  fiUngin  returns  office,  1119. 
Penitentiary  labor;  products  used  by  naval  forces, 

1519,  1520. 
Pickles;  purchase  of,  for  Navy,  1115. 
Powder;  purchase  of  gimpowder  without  advertising, 

1113. 
Preserved  meats  for  Navy,  1115. 
President's  finding  as  toexcessive  charges  by  American 

vessels,  1283. 
Prices;  competition  with  foreign  hemp,  1115. 

in  bids  nominal  or  fictitious;  not  considered,  1114. 
of  foreign  supplies;  consular  certificate  required, 

1114. 
United  States  and   foreign  supphes;  preference, 
1115. 
Principal  defaulting;  subsequent  bids  rejected,  1114. 
Procurement  of  stores  and  materials;  President  and 

Secretary  of  the  Navy,  342. 
Proposals — 

Advertising  for,  1109. 

Copies  of  to  be  filed  in  returns  office,  Interior 

Department,  1118, 1119. 
For  naval  supplies — 

And  transportation:  advertising  for,  1111. 
Annual  report  of,  381 . 
Not  to  be  advertised  for  in  emergencies,  1109. 
Sale  of  naval  vessels- 
Deposit  to  accompany,  1192. 
Record  of,  1192. 
Submitted  to  all  manufacturers  of  shells  and  pro- 
jectiles, 1395. 
To  be  accompanied  by  written  guarantee,  1112, 
1113. 
kept  sealed  until  date  of  opening,  1111. 
preserved  and  recorded  and  reported  armually 
to  Congress,  1113. 
Provisions,  Na\'y;  advertising  for  proposals,  1111. 

.  transportation  by  American  vessels,  1283. 
Public- 
Officers  not  to  accept  fees  for  procunng,  etc.,  1332, 

1333. 
Works;  appropriation  not  to  be  overobligated, 
1116. 
protection  of  laborers  and  material  men,  1127. 
Purchases  may  be  made  in  open  market  in  emergencies, 
1109. 
to  be  made  after  advertisement  for  proposals,  1109. 
Quarters;  exceeding  appropriations  for,  1116,  1288. 
Record  of  each  bid  to  be  made  when  opened,  1110. 
proposals  to  be  kept  and  reported  annually  to 
Congress,  1113. 
Regular  dealers;  bids  submitted  by  persons  who  are 

not,  1114. 
Regulations  becoming  part  of,  787. 

governing  purchase  of  stores  and   supplies  for 

Navy,  787,  788. 
may  operate  as,  198. 
Rejection  of  bids;  grounds  for,  1114. 
Relinquishment  of  10  per  cent  reservation,  1115. 
Reports  to  Congress  annually  of  proposals,  1113. 
Reservation  of  10  per  cent;  paj-ment,  1115. 
Restriction  on,  in  excess  of  appropnations,  1104,  1116, 

1288,  1331. 
Returns  office,   Interior   Department;  copies   to  be 

filed  in,  397,  1118,  1119. 
Samples  of  tobacco  to  be  examined  by  naval  board, 
1250. 


1597 


INDEX. 


CONTRACTS— Continued. 

Screw  threads;  standardized  to  be  used  by  Navy; 

specifications,  1520. 
Sealed  bids  for  foreign  supplies,  1114. 

proposals  for  naval  supplies  and  transportation, 
1111. 
Secretary  of  Iho  Navy — 
Can  not  vary  terms,  361. 
Judgement  concerning  excessive  bids,  1114. 
May  make,  where  bidder  fails  to  furnish  bond, 

1112,1113. 
Powers  as  to  purchase  of  fuel,  1 1 15. 
To  advertise  for  proposals,  1111. 

approve  specifications  for  steel,  1195. 
be  present  at  opening  of  bids  for  foreign  sup- 
plies, 1114. 
cause  officers  making,  to  sign  names  at  end, 

etc.,  1118, 1119. 
furnish   instructions   and    forms    to    officers 

authonzed  to  make,  1119. 
insure  quality  of  butter,  etc.,  purchased  for 

Navy,  1115. 
make  or  direct,  1111. 

report  annually  to  Congress  proposals  received, 
1113. 
Security  for  performance  required  of  bidders,  1111. 
Services  procured  after  advertising  for  proposals,  1109. 
in  open  market,  amount  less  than  $500;  1299. 
without  advertising,  in  emergencies,  1109. 
Settlement;  accounts  to  be  rendered  by  contractors 

and  agents,  1111. 
Shells  and  projectiles  for  Na^'y;  restnctions  on  pur- 
chase of,  1395,  1396. 
Signatures  of  officers  making,  1118. 
Sites  for   public   buildings;  not   to  exceed   specific 

appropriation,  1116. 
Special,  for  baking  bread,  1115. 
Specifications — 

For  steel  to  be  approved  by  Secretary  of  the  Navy, 

1195. 
Printed  schedules  to  be  furnished  bidders,  1111. 
Screw  threads,  1520. 
State  interference  with  Federal  contractors,  49. 
Stationery  and  supplies;  not  to  be  for  longer  term  than 

one  year,  1117. 
Steam  boilers;  purchase  of;  tests,  1182,  1183. 
Subsistence,  Navy;  exceeding  appropriations  for,  1116, 

1288. 
Suit  against  contractor  and  sureties  for  liqmdated 

damages,  1113. 
Supplies — 

And  transportation  for  Navy;  advertising  for  pro- 
posals, 1111. 
For  departments,  1358. 

to  be  purchased  from  other  departments  and 
establishments,  1526. 
For  other  bureaus  or  departments;  appropriation 

chargeable,  1409,  1536. 
Procured  in  excess  of  needs  for  current  year,  387, 

1113,1117. 
To  be  procured  after  advertising  except  in  emer- 
gencies, 1109. 
Sureties;  copartners  not  received  as,  for  each  other, 
1114. 
defaulters  in  previous  contracts  not  received  as, 

1114. 
liable  for  liqmdated  damages,  1113. 
one  contractor  not  received  as  surety  for  another, 
1114. 
Ten  per  cent  reservation;  pajTnent  of,  1115. 
Terminated  by  operation  of  law;  paj-ment  of  reserva- 
tion, 111.5, 1116. 


CONTRACTS— Coatinued. 

Term  of;  butter,  cheese,  and  tobacco,  for  periods  more 
than  one  year,  1113. 
not  to  exceed  one  year;  stationery  and  supplies, 
387,  1117. 
Time  and  place  of  opening  bids  to  be  communicated 
to  parties,  1110, 
for  filing  copies  in  returns  ofHce,  1118, 1119. 
Tobacco,  may  bo  made  for  four  years,  1113. 
Navy,  purchase  of,  1250. 
purchase  without  advertising,  1113. 
Transfer  of,  unauthorized,  1117. 
Transportation;  advertising  for,  1111. 
Army  transports,  1298. 
coal  in  Alaska  for  Navy,  etc.,  1393, 1394. 
exceeding  appropriations  for,  1116, 1288. 
fuel;  charges  excessive,  1407, 1408, 1482, 1515. 

purchase  of  vessels,  1515. 
troops,  etc.,  in  time  of  war,  1465. 
vessels  of  United  States  to  be  used  unless  charges 
excessive,  1283. 
Treasury  Department,  copies  certified  by,  for  use  in 

court,  427,  428. 
Unauthorized;  if  in  excess  of  appropriations,  1104, 
1116,  1288,  1297,  1331. 
purchase  of  land;  speciflclaw  required,  1117. 
Undertaking  required  to  be  furnished  by  bidders, 

1112, 1113. 
United  States  articles  preferred,  for  Navy,  1115. 
Vegetables,  desiccated,  purchase  of  for  Navy,  1115. 
Vessels — 

Navy,  under  construction;  ownership  before  ac- 
ceptance, 773. 
Procurement  of,  during  war  or  emergency,  1453. 
Voidable;  fraudulent  enlistment,  550. 
Void,  fraudulent  enlistment,  552. 
Weighers  of  fuel,  1110. 

Wood  to  be  inspected  and  measured  before  deUvery, 
1110. 
to  measme  128  cubic  feet  to  cord,  1110. 
Writing  required;  signatures,  etc.,  1118,  1119. 
CONTRIBUTIONS: 
SeePolitical. 

Political,  prohibited;  officers  and  employeas  of  United 
States,  783, 1180,  1181. 
soUciting,  giving,  etc.;  offenses  connected  with, 
1334, 1335. 
Presents  to  superiors,  1073. 
CONVENING  AUTHORITY: 

See  Courts-martial. 
CONVENTIONS: 

Expenses  of  public  officers  attending;  restrictions  on, 
1371. 
CONVERSION: 

See  Disbursing  officers;  Evihezzlevient;  Public  moneys; 

Public  property. 
Money  or  property  intended  for  naval  service;  punish- 
ment, Navy,  990. 
Public  moneys  by  custodians,  prohibited,  1098. 
CONVICTION: 
See  Jeopardy. 

Does  not  make  accused  incompetent  as  witness,  1047. 
Former  conviction,  plea  of,  119. 
Necessary  before  pardon  recommended,  84. 
Required  before  punishment,  73-74, 1078. 
CONVICTS: 

Court-martial  prisoners  confined  in  civil  institutions, 
treated  as,  9S3,  984. 
CONVOY: 

Merchant  or  other  vessels;  offenses  connected  with; 
punishment.  Navy,  985. 


1598 


INDEX. 


COOKS: 

Marines  detailed  as;  additional  pay  for,  1299. 
Pay,  864. 
COOLIES: 

Naval  forces  employed  in  preventing  immigration  of, 
1081. 
COOPERATION: 

Army  and  Marine  Corps;  jurisdiction,  961. 
and  Navy,  579. 

supplies  and  transportation  fmnished,  433. 
Coast  Guard  with  the  Navy,  1091. 
COPIES: 
Contracts — 

and  bonds  furnished  laborers  and  material  men  on 

public  works,  1227, 1228. 
Certified  by  returns  office,  428. 

by  Treasiuy  Department,  427,  428. 
Finished  by  returns  office,  398. 
To  be  filed  in  returns  office,  Interior  Department, 
397, 1118,  1119. 
Consular  records;  evidence  in  court,  429. 
Records  of  court-martial  furnished  interested  persons; 
evidence  in  other  cases,  1036. 
Navy  Department  desired  for  use  in  court,  424, 
426,  427,  1023. 
COPPERSMITH: 

Ratings  established  in  Navy,  1495. 
COPYISTS: 

See  Civil  establishment. 

Employment  from  naval  appropriations  restricted,1281 . 
Pay,  204. 
COPYRIGHTS: 

Government  pubUcations  not  to  be  copyrighted,  1232. 
Purchase  of,  by  Hydrographic  Office,  Navy  Depart- 
ment, 390, 1236. 
CORD: 

Wood  for  public  service  to  measure  128  cubic  feet, 
1110. 
CORONERS: 

Right  to  hold  inquests  on  United  States  reservations, 
293. 
CORPORATION: 

"  Person''  includes,  in  construing  criminal  code,  1355. 
CORPS: 

Army,  defined;  Marine  Corps  detached  for  ser\"ice 
with,  443,  444. 
CORRECTION: 
SeQ  Errors. 

Commanding  officer's  duty  as  to,  978,  979. 
CORRESPONDENCE : 

Penalty  envelopes  to  be  inclosed  in  letters  to  Congress, 
1191. 

COST: 

Work  under  naval  appropriations;  direct  and  indirect 
charges  included,  1365. 
COUNCIL: 

National  defense;  creation;  duties,  etc.,  1465, 1466. 
Unauthorized;  expenses  of  not  payable,  1105, 1316. 
COUNSEL: 

Accused  entitled  to,  129, 133. 

Appointment  of  special  assistants  by  Attorney  Gen- 
eral, 325. 
Attorney  General  will  furnish;  in  departmental  inves- 
tigations, 220. 
to  assist  naval  courts-martial,  1019, 1020. 
Claims  investigated  in  departments;  Department  of 
Justice  to  furnish,  325. 
prosecution  of  by  former  Government  employees, 
224. 
Court  of  inquiry  proceedings;  right  of  party  investi- 
gated, 1056. 


COUNSEL— Continued . 

Courts-martial;  public  officer  accepting  fee  as:  punish- 
ment, 1333. 
Damage  claim  against  captor  in  prize  cases,  1139. 
Department  of  Justice  provides  for  pubUc  officers,  323, 
460. 
subordinates  to  be  sent  into   Federal  or  State 
courts,  326. 
EnUsted  man  tried  by  civil  court;   assignment  of 
wages  to  pay,  893. 
charged  with  manslaughter  before  consular  court, 
224. 
Examining  boards  may  have,  723. 
Fees  not  allowed — 

For  services  rendered  to  public  officers,  323. 
Unless  on  certificate  of  Attorney  (Jeneral,  325. 
Foreign  countries,  how  obtained,  223,  321. 

oath  not  required,  224. 
Habeas  corpus  cases,  324. 
Heads  of  departments  can  not  employ,  221 . 
Notaries  public  acting  as,  before  departments,  1295. 
Naval  officers  sued  in  official  capacity,  324. 
Oath  required  to  be  taken  by,  224,  325. 
Secretary  of  the  Navy  not  authorized  to  employ  for 

courts-martial,  1019,  1020. 
Special,  employed  to  assist  district  attorneys,  324,  325. 
State  courts;  Department  of  Justice  can  not  prosecute 
cases  in,  324. 
COUNTERCLAIMS : 
See  Set  off. 

Jurisdiction  of  Covu-t  of  Claims,  1362,  1363. 
COUNTERFEITING : 

Honorable-discharge  blanks,  569. 
Signatures  in  connection  with  claims  against  United 
States;  punishment.  Navy,  990. 
COURT  OF  CLAIMS: 
See  Claims. 
Accounting  officers'  jurisdiction  with  relation  to,  235, 

236. 
Appeals  from  judgments  of,  1365. 
Attorneys,  former  Government  employees,  224. 
Attorney  General  and  subordinates  to  conduct  and 

argue  cases,  322. 
Calls  on  departments  for  information  and  records, 

1364,  1365. 
Can  not  require  confidential  information  from  Depart- 
ments, 221. 
Claims  referred  by  departments,  1363,  1364. 
Commissioners  to  take  testimony,  1364. 
Counterclaims  determined  by,  1362,  1363. 
Decree  on  accounts  of  disbursing  officers,  1363. 
Department  of  Justice  to  conduct  proceedings  in,  323. 
District  coin-ts  to  have  concurrent  jurisdiction  in  cer- 
tain cases,  1361,  1362. 
Heads  of  departments  to  furnish  Attorney  General 

with  information  concerning  suits,  220-221. 
Judgments;  how  paid,  276. 

jurisdiction  of  accounting  officers,  232. 
Jurisdiction- 
Date  of  naval  officer's  commission  not  bindin.^  on, 

835. 
Effects  lost  in  naval  service;  claims  for  reiml)urse- 

ment,  271. 
Private  property  lost  or  damaged  in  naval  service, 

1492-1494. 
ReUef  of  disbursing  officers,  etc.,  1362, 1363. 
New  trial  on  motion  of  United  States,  1365. 
Patents;  suit  for  use  of  by  Government,  1360,1494, 1502. 
Payment  of  judgments;  cases  referred  by  departments, 

1364. 
Procedure  in  cases  referred  by  departments,  1364. 


1599 


INDEX. 


tOUBTS: 

See      Civil     authorities;  Courts-martiat:  Judicial;   Wit- 
nesses. 
Accounting  officers'  jurisdiction  with  relation  to,  235, 

2-17,  248. 
Admiralty  and  maritime  jurisdiction,  lor). 
Attorney  General  and  subordinates  to  arpue  cases  in, 
322. 
bound  by  decisions  until  reversed,  320. 
has   general   supervision    of  litigation   involving 

United  States,  281. 
will  not  render  opinions  on  judicial  questions,  300. 
Civil  liability  of  commanding  officer  for  illegal  acts, 

loas. 

Commanding  officer  not  a  court,  119. 
Commission  to  take  testimony  for  use  in,  421, 1364. 
Consular,  trial  of  capital  oHenses  by,  69. 
Contempt  of;  pardoning  power,  84. 
Departmental  records;  production  in,  194. 
Department  of  Justice — 

Subordinates  to  be  sent  into  any  Federal  or  State, 

326. 
To  furnish  counsel  for  public  officers,  328. 
District  courts  of   United   States;  suits  in,  against 

United  States,  1361,  1362. 
General  provisions  relating  to,  399-432. 
Heads  of  departments'  decisions  not  binding  on,  348. 
may  apply  to,  for  subpoenas  in  pending  claims, 

219. 
may  decline  to  testify  or  furnish  records,  194. 
Injunction  to  prevent  dismissal,  99. 
Judicial  notice  of  duties,  public  officers  authorized  to 
perform,  213. 
system  explained,  37. 
Jurisdiction — 

Accounting  officers  with  relation  to,  235,  247,  248. 
Appointment  and  removal  of  employees,  338. 
Assistant  head  of  department,  deposition  required, 

422. 
Business  of  executive  departments,  345-348. 
Can  not  command  the  Army,  621. 
Concurrent  with  courts-martial,  lOOi. 
Court-martial,  over  person  in  custody  of  civil 
court,  63,  64. 
proceedings,  60,  128,  401-403,  1047-1051. 
Date  of  naval  officer's  commission  not  binding  on, 

835. 
Examining  boards  for  promotion,  728. 
Heads  of  departments,  78,  79,  778. 
Illegal  acts  by  military  officers,  54. 
Insane  persons  committed  to  Saint   Elizabeths 

Hospital,  789. 
International  law,  105. 
Mandamus;  accounting  officers,  256,  257. 

board  of  labor  employment  at  navy  yards,  780. 
heads  of  departments,  79. 
Secretary  of  the  Navy,  778. 
Naval  personnel,  65. 
Offenses  on  naval  vessels,  983. 
Perjury  committed  in  Federal  court,  53. 
Public  officers  sued  for  official  acts,  54,  350,  351. 
Retiring  boards  can  not  be  reviewed  by,  620,  621. 
Military  officer  awaiting  trial  by,  pay,  825. 
Naval  prisoners  as  witnesses  in,  403. 
Philippine  Islands,  jurisdiction  over  naval  vessel,  67. 
Political  questions,  lO-I. 
President  beyond  jurisdiction  of,  77. 
Proceedings  of  court-martial  bar  to  trial  by  civil,  1047. 
evidence  before  naval  examining  boards,  719,  720. 
Prohibition;  writ  of,  not  issued  to  court-martial,  977 


COURTS— Contini-.od. 

Records  of  court-martial  as  evidence,  1036. 
of  departments,  copies  for  u;>c  in,  426,  427. 
of  Navy  Department,  furnishing  for  use  in,  356,  424. 
Retirement  can  not  be  ordered  by,  620,  642. 
State- 
Attorney  General  not  empowered  to  conduct  cases 

in,  323. 
Department  of  Justice  can  not  prosecute  cases  in, 
324. 
subordinates  to  attend  to  suits  in,  326. 
Depositions  for  use  in,  424. 
Federal  officers  attending  as  witnesses,  416. 

property  in  possession  of;  right  of  Government 
to  recover,  773. 
Jurisdiction  in  habeas  corpus,  53. 
of  offenses  on  naval  vessels,  67. 
Subpoena  to  head  of  department,  79,  422,  424. 
United  States — 

Jurisdiction  by   habeas  corpus  over  persons  in 
Navy,  54. 
in  cases  of  arrest  by  State  authorities,  51-53. 
COURTS-MARTIAL : 

See  Accused;  Courts;  Documentary  evidence;  Evidence; 

Jeopardy;  Sentence;  Punishments;   Witnesses. 
Absence  of— 

Accused  at  trial,  126-128. 

Witnesses,  admission  as  to  what  they  would  tes- 
tify, 132. 
procured  by  accused,  132. 
Accused  can  not  confer  jurisdiction  by  consent,  125 
977,  1033. 
promoted  subjected  to  examination,  status  of,  652. 
waiver  of  rights  and  privileges,  121,  132,  1026,  1045, 
1057,  1058,  1062. 
cquittal;  disapproval  of  sentence  equivalent  to,  988. 
effect  of,  988. 

not  bar  to  suit  for  damages  against  accused,  1049. 
plea  of,  119. 
Adequate  punishment  required,  1034. 
Admissibility  of  evidence  determined  by,  1024,  1025. 
Appropriations,  special,  not  required  for  expenses  of, 

1105. 
Army,  convened  on  naval  vessel,  65. 

jurisdiction  over  Navy  and  Marine  Corps,  1544. 
Marine  officers  may  serve  as  members  of,  1544. 
Bribery  of  members,  witnesses,  etc.,  1336. 
Challenge,  right  of  accused,  131,  1018. 
Character  evidence,  right  of  accused  to  process  for 

obtaining,  133. 
Chiefs  of  bureaus  subject  to  trial,  62,  366,  839,  977. 
Civil  courts;  jmisdiction  with  relation  to,  60,  128, 

401-403,  1001,  1047-1051. 
Clemency  may  be  recommended  by  members,  1034. 
Coast  and  Geodetic  Survey,  officers  may  serve  on  naval. 
1494. 
subject  to  naval  jurisdiction,  978,  1479,  1480. 
Coast  Guard  officers  may  serve  on  naval,  1494. 

subject  to  naval  jiuisdiction,  978, 1455. 
Commutation  of  sentence — 

By  reviewing  authority,  1009. 
Deck  courts,  1308. 

Definition;  mitigation  distinguished,  85,  1054. 
General  courts,  1051-1055. 
Officers  dismissed  pursuant  to,  441. 
President's  power,  1053,  1054 
Summary  courts,  1009. 
Conclusiveness  of  record,  1035,  1030. 
Confirmation  of  sentence    by   reviewing    authority, 
10.36-1051. 


1600 


INDEX. 


COURTS-3IARTIAL— Continued. 

Confirmation  of  sentence;  mitigating  circumstances 

considered  by  reviewing  autliority,  1040. 
Congressional   committee  reviewing  proceedings   of, 

1047. 
Consent  of  accused  can  not  confer  judirisdiction,  1033. 
Constitution  authorizes,  68. 
Constitutional  limitations  applicable  to,  68. 
Convened  in  foreign  country,  65. 
Convening  authority  empowered  to  remit  or  mitigate 
sentence,  general  courts,  10.51-10.x>. 
outside  his  command,  1015. 
Conviction  does  not  make  accused  incompetent  as 
witness,  1047. 
necessary  before  pardon  recommended,  84. 
plea  of,  119. 

required  before  punishment  effective,  73,  74,  1078. 
Correction  of  record,  1035. 
Counsel — 

Accused  entitled  to,  129, 133. 
For  judge  advocate,  222,  223,  324. 
Judge  advocate  acting  for  accused,  133. 
Public  officers  acting  as;  punishment  for  accepting 
fee,  1333. 
Court  of  inquiry  proceedings  admissible  in  evidence, 

131,  10.56,  1057. 
Cumulative  evidence,  right  of  accused  to  process  for 

obtaining,  132. 
Death— 

Of  member  before  signing  record,  1034. 
Sentence  authorized,  979-982,  1012. 
liow  determined,  1034. 

life  imprisonment  may  be  substituted  for,  9S3 
mitigation  of,  1054,  1055. 

President  must  confirm  before  execution,  1036. 
prohibited  unless  specifically  authorized,  1034. 
Deck  courts- 
Appeal  from  decision,  1309. 
Approval  of  sentences,  1312. 
By  whom  convened,  1308. 
Constitution  of,  1308. 
Convening  of,  1441. 

by  commanding  ofiBcer  of  hospital  or  hospital 
ship,  1441. 
Discharge  from  service  can  not  be  adjudged  by, 

1308. 
Execution  of  sentences,  1308,  1312. 
General  provisions  relatmg  to,  1308,  1309. 
Judge  Advocate  General  to  re\iew  records  of,  1309. 
Jurisdiction  of  enlisted  men  under  command  of 

convening  officer,  1441. 
Oaths  administered  by,  1308. 
Objection  to  trial  by,  1309. 
Officers  of  Naval  Reserve  Force,  Coast  Guard,  etc., 

eligible  for,  1494. 
Punishments  which  may  be  adjudged  by,  1309. 
Recorder  of,  1308. 
Records  of,  1309. 

Regulations  of  President  to  govern,  1309. 
Re->.iewingauthority:  mitigation  of  sentence,  1308. 
Secretary  to  act  on,  in  certain  cases,  1309. 
Defense — 

Accused  allowed  reasonable  time  to  make,  1025. 

Former  arrest,  119. 

Insanity,  1030,  1031. 

Irresistible  impulse,  1031. 

Punishment  by  commanding  officer  not  bar  to 

trial,  1004. 
Statute  of  limitations,  1058, 1062. 
Depositions  of  witnesses,  131,  1023,  1311,  1312. 


COURTS-MARTIAL— Continued. 

Discretion  as  to  punishments,  979,  981, 983, 984, 985, 990, 

994,  996. 
Dismissalof— 

Member  absent  without  authority,  1031. 
Officers,  441, 1010-1014. 
.  mandatory  in  certain  cases,  994,  1029,  1031, 
1064, 1287. 
Dismissed  officer  may  demand  trial  by,  1012. 
Errors;  review  of  by  civil    courts,  60,    128,   401-403, 

1047-1051. 
Estimate  and  appropriations  for.  Navy,  1103. 
E\ideucc;  general  rules  of,  1024. 
should  all  be  recorded,  1034. 
Expenses  of,  may  be  paid  without  special  appropria- 
tion, 1105. 
Expert  witnesses,  241,  412,  611,  1025,  1056. 
Finality  of  proceedings,  60,  68. 
Finding- 
Guilty  of  lesser  offense  than  that  charged,  1029. 
Partial  disapproval;  effect  on  sentence,  1038. 
Fines  may  be  adjudged,  990. 

to  be  credited  to  naval  hospital  fund,  1159. 
to  be  used  for  transportation  of  discharged  prison- 
ers, 1313. 
Former  punishment  no  bar  to  trial,  1004. 
General- 
Absence  of  members,  1029-1033. 

restricted  imder  pain  of  dismissal,  1031. 
Absent    member    returning;  witnesses    recalled 
1032. 
witness;  additional  charges  may  be  tried  on 
return  of,  1025. 
Accused  allowed  reasonable  time  to  make  defense, 
1025. 
to  be  furnished  charges  when  put  under  arrest» 
1025. 
Additional  charges  not  to  be  urged  against  accused 
at  trial,  1025. 
triable  by  different  court,  1028. 
Adjournment^ 

By  convening  authority,  1029. 
From  day  to  day  in  absence  of  quorum,  1031. 
Arrested  officer  to  confine  himself,  etc.,  1029. 
Arrest  of  accused,  1025. 
Challenge  of  member,  131,  1018. 
Changes  in  membership  by  Bureau  of  Naviga- 
tion, 1018. 
Charges— 

And  specifications,  1025-1029. 
To   be  furnished  accused    when    put   under 
arrest;  additional  charges  restricted,  1025. 
Commutation  of  sentence,  1051-1055. 
Constitution  of,  1015-1019. 
Contempt  of  coiu-t  by  vsritness,  1021,  1310. 
Convening  authority,  1014-1015,  1310,  1442. 

may  inflict  punishments  without  trial,  1441. 
may  order  courts  of  inquiry,  1442. 

deck  courts,  1441. 
must  confirm  sentences,  1036. 
power  to  remit  or  mitigate,  but  not  commute 

sentence,  1051-10.55. 
temporarily  adjourning,  1029. 
trial  of  midshipmen,  1248. 
Delay  of  proceedings,  1029. 
E\idence,  1021-1025. 

after  court  cleared,  1030. 
to  be  recorded  by  judge  advocate,  1019. 
Execution  of  sentence;  confirmation  of  reviewing 
officer  required,  1036. 
Illegally  constituted,  1018. 


1601 


INDEX. 


COIRTS-MARTIAL— Continued. 

General— Continued . 

Irregularity  in  administering  oaths,  1020. 
Judge  Advocate- 
Duties,  1019. 
May  administer  oaths  for  purposes  of  naval 

administration,  1240. 
Not  sworn,  effect  of,  1020,  1021. 
Responsibility  for  verity  of  record,  1034. 
To  administer  oath  to  meniliers,  1019. 
Judgment  authenticated  by  signatures  of  members 

and  judge  advocate,  1034. 
Members,  1015-1019. 

as  witnesses,  131,  1019. 
responsible  for  tnith  of  record,  1034. 
Minor  eligible  as  member,  1018. 
Mitigation  of  sentence,  1051-10.55. 
New  trial,  former  members  ineligible,  1018. 
Number  of  members,  1015,  1010. 
reduced  below  minimum,  1031. 
who  may  proceed  with  case,  1029. 
Oath  of  judge  advocate,  1019. 
members,  1019. 
witnesses,  1021. 
Officers  of  Naval  Reserve  Force,  Coast  Guard,  etc. 

eligible  for  membership,  1494. 
Perjury  by  witness,  how  punished,  1021. 
Precedence  of  members,  101.5,  1010. 
Precepts,  changes  in,  1015,  lOlS. 

recitals  in,  1015. 
Presence  of  accused  during  trial,  1030. 
President's  action  on  sentence;  midshipmen  cases, 

1248. 
President  of,  1015, 1016. 

to  administer  oath  to  judge  advocate,  1019. 
to  swear  witnesses,  1021. 
Proceedings,  1029-1031. 

not  invalidated  by  unauthorized  absence  of 

member,  1031. 
to  be  recorded  by  judge  advocate,  1019. 
Prosecutor,  1020. 
Public  ses.sions,  1030. 
Quorum  may  proceed  with  case,  1029-1033. 

not  present;    may  adjourn  from  day  to  day, 
1031. 
Rank  of  members,  1015,  1017,  1031. 
Record  to  be  kept  by  judge  advocate,  1019. 
Remission  of  sentence,  1051-1055. 
Retired  officer  eligible  as  member,  1018. 
Return  of  absent   member;    witnesses  recalled, 

1032. 
Reviewing  authority's  action  on  sentence,  1051- 
1055. 
authority,  trial  of  midshipmen,  1248. 
Revision  of  proceedings;    absent  member,  1031, 

1032. 
Secrecy  of  votes  and  opinions  of  members,  1019. 
Secretary  of  the  Navy  may  convene  for  midship- 
men, 1248. 
Senior  member  to  preside,  1015, 1016. 
Sentence — 

How  determined,  1034. 

Not  to  be  di\nilged  until  approved  by  proper 

authority,  1019. 
Remitted  or  mitigated  by  reviewing  authority, 
1051-1055. 
Sittings  to  be  from  day  to  day,  Sundays  excepted, 

1029. 
Summary  court-martial  punishments  may  be  in- 
flicted oy,  1010. 
Sunday  sessions  not  required,  1029. 


COURTS-MARTIAL— Continued. 

General— Continued. 

Suspension  of  oflicer's  pay,  1033. 

of  proceedings,  1029. 
Temporary  adjournment  by  convening  authority- 

1029. 
To   punish    irreverent    behavior   during    divine 

service,  979. 
Vote  of  members  not  to  be  divulged,  1019. 
Waiver  of  objection  by  accused,  1026. 
Witnesses- 
Members  of  court  as,  131, 1019. 
Prevaricating,  how  punished,  1021. 
Recalled  on  return  of  absent  member,  1032. 
Sworn  by  president,  1021. 
Habeas  corpus  proceedings  relating  to,  401-403. 
Haste  in  conducting  proceedings,  130. 
Hours  of  spssion,  miu.sual  not  approved,  130. 
Illegally  constituted;  not  due  process  of  lav/,  125. 
Imprisonment  may  be  adjudged,  983,  990. 
Investigating  loss  of  naval  vessel,  996. 
Irregularities — 

And  fatal  defects,  distinguished,  1045-1047. 
Not  fatal,  1033. 

Waiver  of  objection  by  accused,  1026. 
Jeopardy;  new  trial,  1047. 
Judge  Advocate  General — 

Duties  relating  to,  1186,  11S7. 
Power  to  revise  proceedings,  1043. 
Subject  to  trial,  62,  366,  977. 
Judicial  notice;  State  laws,  429. 
Jurisdictional  facts  must  be  shown  by  record,  1034. 

omitted  from  record,  1034. 
Jurisdiction- 
Change  of  status  of  accused  does  not  divest,  403. 
Chiefs  of  bureaus,  62,  366,  &39,  977. 
Concurrent  with  ci\-il  courts,  1001. 
Consent  of  accused  can  not  confer,  125,  977,  1033. 
Discharged  or  dismissed  persons;  trial  of,  991, 1012. 
Embezzlement,  misappropriation,  false  accounts 

and  false  returns,  1170. 
Enlisted  men  not  discharged,  555,  556. 
Homicide  on  naval  vessel,  983. 
Marino  Corps,  960,  961. 
Midsliipmen,  124S. 
Not  conferred  by  consent  of   accused,  125,  977, 

1033. 
Not  limited  by  espionage  act,  1484. 
Of  civil  courts  to  re\iew,  etc.,  60,  12S,  401-403, 

1017-1051. 
Offenses,  65. 

against  Articles  of  War  committed  by  marines, 
1544. 
Of  State  courts  to  release  prisoners,  .53. 
Persons  amenable  to,  62,  973-978. 
civilian  spies,  etc.,  981,  982. 
crew  of  lost  vessels  until  discharge,  996. 
discharged  enlisted  men,  567,  991,  1060. 
dismissed  officer,  991,  1012-1014. 
enlistment  expired  but  not  discharged,  558, 

1057,  1061. 
illegal  discharge  revoked,  1008. 
Persons  not  amenable  to,  63. 
Retired  enlisted  men,  969,  970. 

officers,  62,  631,  643,  644. 
Specification  fatally  defective:    proceedings  and 
sentence  nullities,  1008,  1009. 
Jury  analogous  to,  1039. 
Law  and  facts  decided  by,  1024,  1045. 
Lighthouse  Ser^^ce,  officers  may  serve  on  naval,  1494. 
subject  to  naval  jurisdiction,  978,  1456,  1457. 


1602 


INDEX. 


COURTS-MARTI AL— Continued . 

Limitation  of— 

Punishments,  time  of  peace,  1062-1064. 

Trials;  desertion  in  time  of  peace,  1060-1062. 
general  oflenses,  1057-1060. 
Marine  Corps — 

Reserve,  ofHcers  may  serve  on  naval  courts,  1494. 

Subject  to  naval  jurisdiction,  956,  978. 
Members — 

May  recommend  clemency,  1034. 

Must  sign  judgment,  1034. 

Officers  of  auxiliary  naval  forces  eligible,  1494. 

Testifying  as  witnesses,  131, 1019. 
Midshipmen,  751-761, 1248. 

for  hazing,  1178, 1286, 1287. 

Secretary  of  the  Navy  to  convene  for  trial  of,  1248. 
Misconduct;  officers  to  be  tried    for,  and   not    re- 
tired, 622. 
Mitigating  circumstances  considered   by  reviewing 

authority,  1040. 
Mitigation  of  sentence,  85, 1009. 

Coast  Guard  personnel,  14r)5. 

deck  courts,  1308. 

general  courts,  1051-1055. 

Secretary  of  the  Navy  has  power,  1309. 

summary  courts,  1009. 
Naval- 
Academy,  how  constituted,  convened,  etc.,  1178. 

Militia,  convening  on  naval  vessels,  65,  71. 

Reserve  f'orce,  officers  may  sen,e  on  naval  courts, 
1494. 
subject  to  naval  jurisdiction,  978,  1446,  1447, 
1451,  1511. 
New  trials,  121,  1047. 

Oath  of  witnesses  before  any  court-martial,  1021. 
Officer  awaiting  trial  by;  pay,  825. 

not  to  be  dismissed  without  sentence  of,  in  time 
of  peace,  441,  1010-1014. 

of  auxiliary  naval  forces  eligible  for  duty  on,  1494. 
Omission  of  record  to  show  jurisdictional  fact,  1035. 
Pardon  of  punishment,  85. 
Partial  verdict,  1029. 
Perjury  before,  431, 1021. 
Plea  of  guilty ;  evidence  after,  1024. 
Power  of  Congress  to  create,  59. 
President  may  convene  without  statutory  authority, 
83,  1015. 

must  confirm  sentence  of  death  or  dismissal,  lO'M. 
President  of  court  to  sign  judgment,  1034. 
President's  power  to  mitigate  sentences,  1053,  1054. 
Proceedings  bar  to  trial  by  civil  court,  1047. 

interrupted  before  completion,  121. 

set  aside  by  Secretary  of  the  Navy,  1309. 
Proliibited  punishments,  1034. 
Promulgation  of  sentence,  1045. 
Pulilic  Health  Service,  officers  may  serve  on  naval, 
1494. 

subject  to  naval  jurisdiction,  978, 1491. 
Public  trials,  130. 

Punishments  without  sentence  of,  restricted,  1002. 
Questions  of  law  and  facts  decided  by,  1024,  1045. 
Recommendation  of  clemencj-  by  members,  1034. 
Reconvening  of,  for  revision  of  proceedings  and  sen- 
tence, 1043-1044. 

its  own  motion,  1044, 1045. 
Record — 

Conclusive  of  its  own  verity,  1035, 1036. 

Copies  furnished  to  persons  interested;  evidence 
in  other  cases,  1036. 

Death  of  member  before  signing,  10;J4. 

Decisions  relating  to,  1034-1036. 


COURTS-MARTIAL— Continued. 

Record — Continued . 

Evidence  before  examining  boards,  718,  719. 

Judgment  authenticated  by  signature  of  members 
and  Judge  Advocate,  1034. 

Of  proceedings  received,  revised,  and  recordf<l 
by  Judge  Advocate  General,  1186. 

Should  contain  aU  the  evidence,  1034. 

To  state  reasons  of  members  for  recommending 
clemency,  1034. 
Reduction  of  officer  to  enlisted  rating;  confirmation 

of  sentence,  1045. 
Regulations  governing  proceedings;  validity  of,  7S5, 

7S6. 
Remission  of  sentence,  85. 

Coast  Guard  personnel,  1455. 

deck  courts,  1308. 

general  courts,  1051-1055. 

Secretary  of  the  Navy  has  power,  1309. 

summary  courts,  1009. 

suspension  not  executed,  669. 
Responsibility  of  members  for  illegal  acts,  54. 
Retiring  boards  may  exercise  powers  of,  603. 
Reviewing  authority — 

Action  of  Judge  Advocate  General,  1043. 

Action  reconsidered,  1038,  1039. 

Decisions  relating  to,  1037-1055. 

Disapproval,  effect  of,  988. 

must  be  distinctly  expressed,  1042. 

Empowered  to  remit  or  mitigate  sentence,  general 
courts,  1051-1055. 

Form  of  President's  action:  personal  signature  not 
required,  1O40. 

General  courts;  confirmation  of  sentence  by,  1036. 

Personal  action  required,  1040. 

Place  of  imprisonment  designated  by,  1064. 

Power  of  Secretary  of  the  Navy,  1008,  1009,  1042, 
1043. 

Reconvening  court  for  revision,  1043, 1044. 

Relation  to  court;  analogous  to  judge  and  jury, 
1039. 

Remission   or   mitigation   of  sentence,    without 
commuting,  1009. 

Sentence  kept  secret  until  approved  by,  1019. 
Review  of,  by  civil  courts,  60,  128,  401-403,  1001,  1047- 
1051. 

by  Congress,  1047. 

hazing  cases,  1287. 
Re\-ision  of  proceedings;  court  reconvene<l,  1043,  1044. 

not  second  trial,  120. 
Secretary  of  the  Na\T's  action  on,  1042, 1043, 1287,  1309. 
Sentence- 
Adequate  punishment  required,  1034. 

Determined  by  majority  of  votes,  except  death, 
1034. 

Excessive;  not  void,  403. 

Final  when  confirmed,  402,  40;?. 

Jurisdiction  of  civil  courts  to  review,  402-403. 

Limitation  of,  in  time  of  peace,  1062-1064. 

Prohibited;  flogging,  etc.,  1034. 
Setting  aside  proceedings  of,  1309. 
Speedy  trial,  right  of  accused,  129. 
Status  of,  not  part  of  judicial  system,  37. 
Statute  of  limitations;  desertion  in  time  of  peace,  lOOO- 
1062. 

general  offenses,  1057-1000. 
Statutory  authority  necessary  to  convene,  1014. 
Subornation  of  perjury;  prosecution  of,  4;il. 
Sufficiency  of  charges  question  for  decision  of,  102.*<. 
Summary — 

Approval  of  sentences,  1312, 1442. 


1603 


INDEX. 


CO  I' KTS-M  ARTI AL— Com  inucd . 

Summary— ContiniU'd. 
Constitution  of,  1006. 
Convening  authority,  100.".,  100(1,  14U. 

commanding  officer  of  hospital  or  hospital  ship, 

1441. 
may  inflict  pimishments  without  trial,  1441. 
may  order  deck  courts,  1441. 
Execution  of  sentence,  1006,  1007,  1312,  1442. 

bad  conduct  discharge,  in  foreign  country,  1006. 
Jurisdiction,   enlisted   men   under   command    of 

convening  autliority.  Mil. 
May  disrate  for  incompetency,  1007. 
Members,  who  may  act  as,  1006. 
Oath  of  members  and  recorder,  1006. 

witnesses,  1006. 
Oflenses  punishable  by,  1005. 
Officers  of  Naval  Reserve  Force,  Coast  f!uard,etc., 

eligible  for  membership,  1494. 
Persons  amenable  to,  1005,  1441. 
Power  of  Secretary  of  the  Navy  over  sentence, 

1008,  1009. 
Proceedings  and  record  of,  1009,  1311. 
Punishments  by,  1006,  1007,  1309. 

may  be  inflicted  by  general  courts-martial,1010. 
Reconvening  for  dillerent  punishment,  1009. 
Recorder;  oath  of,  1006. 

who  may  act  as,  1006. 
Records- 
Evidence  in  civil  court,  1009, 1010. 
Evidence  to  be  kept  by  recorder,  1006. 
Filed  in  Navy  Department;  destroyed  after 
two  years,  1009. 
Reviewing  authority;  action  required,  1007-1009. 
Senior  member  to  administer  oath  to  recorder  and 

witnesses,  1006. 
Sentence,  action  of  reviewing  authority  required, 
1007-1009. 
remission  or  mitigation  of,  without  commuta- 
tion, 1009. 
remitted  by  another  court,  1009. 
Specification  fatally  defective;  proceedings  a  nul- 
lity, 1008,  1009. 
Submitting   case  to   second   court   for  dillerent 

punishment,  1009. 
Testimony  to  be  oral,  1006. 
To   punish   irreverent    behavior   during    divine 

service,  979. 
Witnesses,  oath  of,  1006. 
Trial  by,  mandatory;  officers  failing  to  report  offenses 

by  midshipmen,  1287. 
Veto  of  bill  annulling  finding,  35. 
Votes;  majority  determines  any  sentence  except  death, 

1034. 
Witnesses— 

CiviUans  required  to  appear  before,  1021,  1022. 
Compulsory  process  to  obtain,  1310. 
F"ees,  410-411. 

estimates  and  appropriations  for,  Navy,  1103. 
must  be  paid  or  tendered  in  advance,  1022. 
Members  of  Congress,  33. 
Refusal  to  appear  or  testify;  punishment,  1310. 
Right  to  compel  attendance,  132. 
Self-crimination,  102;3. 

To  besworn  by  president  of  any  court-martial, 1021. 
Wrecked,  lost,  or  captiu-ed  vessel;  conduct  of  officers 
and  men  investigated  by,  891. 
COURTS  OF  INQUIRY: 
Analogous  to  grand  jury,  1055. 

Attorney  of  party  investigated  entitled  to  cross-exam- 
ine witnesses,  1056. 


COURTS  OF  INQUIRY— Continued. 

Board  of  imiuiry  at  Naval  Academy,  1286. 
Constitution  of;  number  of  officers,  1055. 
Contempts  punished  by,  1055. 
Convening  authority;  by  whom  ordered,  1055,  1442. 
Counsel  for  defendant  may  cross-examine  witnesses, 132. 
Defendant  entitled  to  cross-examine  witnesses,  132. 
Depositions  may  be  procured  and  used  before,  1311, 

1312. 
Documentary  evidence  admissible,  10.56. 
Estimates  and  appropriations  for,  Navy,  1103. 
Expenses  of,  may  be  paid  without  special  appropria- 
tion, 1105. 
Evidence  before,  to  be  recorded,  10.56. 
Expert  witnesses,  10.56. 
Facts  to  be  stated  I)y,  10.55. 
Investigating  loss  of  naval  vessel,  996. 
Judge  advocate,  10.55. 

to  administer  oath  for  purposes  of  naval  adminis- 
tration, 1240. 
to  administer  oath  to  members,  1056. 
to  keep  record,  1056. 
to  besworn,  1056. 
Not  judicial  tribunals,  1055. 
Oath  administered  by,  1055. 

of  meml)ers  and  judge  advocate,  1056. 
Opinion  not  to  be  expressed  by,  unless  specifically 

authorized,  10.55. 
Powers  of,  1055. 

Precedence  of  line  and  staff  members,  704. 
President  of,  to  administer  oath  to  judge  advocate, 

1056. 
Proceedings — 

Admissibility  before  civil  court,  1057. 
Admissible  before  courts-martial,  131,  132,  1056, 

10.57. 
As  evidence  before  court-martial;  waiver  of  ob- 
jection by  accused,  1.32. 
Not  a  trial,  1055. 
Record  received,  revised,  and  recorded  by  Judge  Ad- 
vocate General,  1186,  1187. 
to  be  kept  by  judge  advocate,  1056. 

signed  by  president  and  judge  advocate,  1056, 
1057. 
Retiring  boards  may  exercise  powers  of,  603. 
Rights  of  party  inquired  of,  1056. 
Sentence  of;  crew  of  wrecked  or  lost  vessel,  891. 
Sessions  may  be  open  or  closed,  1056. 
Statute  of  limitations  not  applicable  to,  1056. 
Witnesses — 

Compulsory  process  to  obtain,  1310. 
Cross-examined  by  party  under  investigation,  1056. 
Fees;  estimates  and   appropriations    for.    Navy, 

1103. 
Refusal  to  appear  or  testify;  punishment,  1310. 
Summoned  by,  10.55. 
COXSWAINS: 

Additional  pay,  enlisted  men,  866. 
CREDITABLE  RECORD: 

Warrant   and    commissioned    warrant    officers;  pay, 
1429,  1430,  1503,  1504. 
CREDITORS: 

Enlisted  men;  attachment  of  wages,  573,  574. 
CREW: 

Assignment    of   wages;  commanding    officer   to   dis. 

courage,  573. 
Final  payment  to;  duty  of  commanding  officer,  995. 
Maltreatment  of  by  officers,  1351. 
Provisions  relating  to  health  of,  995. 
Report  of  members  entitled  to  honorable  discharge, 
573. 


1604 


INDEX. 


CREW— Continued. 

Separated  from  wrecked  or  lost  vessel;  pay  of,  891. 
Wrecked  or  lost  vessel;  discipline  of,  996. 
CRIMES: 

See  Articles  for  the  government  of  the  Navy. 
Accessories;  punishment  of,  1354. 
Admiralty  and  maritime  jurisdiction,  1348-1351. 
Adultery;  definition  and  punishment,  1354. 
Appointments  to  office;  Members  of  Congress,  etc. 

taking  consideration  for  procuring,  1332,  1333. 
Arsenals,  etc.;  enticing  workmen  from,  1327. 
Arson- 
Dwelling  house  or  other  building,  1350. 
Mailing  matter  tending  to  incite,  1340, 1341. 
Vessel,  1353. 
Assassination;  mailing  matter  tending  to  incite,  1340, 

1341. 
Assault  with  intent  to  commit  any  felony,  1349. 

to  commit  murder  or  rape,  1349. 
Assaulting  or  robbing  mail  custodian,  1339. 

postal  clerk,  1338. 
At  sea,  power  of  Congress,  38. 

Attorneys  before  departments,  courts-martial,  etc., 
public  officers  or  employees  acting  as,  1333. 
prosecuting    claims,    procuring    contracts,    etc., 
public  officers  acting  as,  1332, 1333. 
Bigamy,  1354. 
Books,  maps,  etc.;  destroying,  removing,  stealing,  or 

attempting  to  do  so,  1335, 1336. 
Breaking  and  entering  vessel,  etc.,  1352, 1353. 

into  compartment  of  vessel,  etc.,  used  by  mail  ser- 
vice, 1338. 

into  post  office,  1338. 
Briberj-;  judges,  jurors,  witnesses,  etc.,  1336. 
public  officers,  1334. 
United  States  officers,  1325, 1326. 
Carnal  knowledge  of  female  imder  sixteen,  1349. 
Checks;  drawing  and  issuing  for  amount  less  than  one 
dollar,  1337. 
larceny  of,  1350. 
Citizenship;  falsely  claiming,  1328. 
Civil-sen.-ice  law;  violations;  punishment,  1383,  1384. 
Claims  against  United  States;  fraudulent,  1323, 1324. 

officers,  employees,  etc.,  interested  in,  1-332. 
Code  books,  plans,  etc.,  relating  to  national  defense; 

negligence  in  losing,  etc.,  1483. 
Cohabiting  with  more  than  one  woman,  1354. 
ColUsion  between  vessels;  failure  to  render  assistance, 

1216. 
Conspiracy,  1324. 

to  commit  offense  against  United  States,  1325. 
Construction  of  certain  words  in  criminal  code,  1355. 
Contempt;  witnesses   summoned    by    naval    courts; 

punishment  by  civil  court,  1310. 
Contracts — 

Exceeding    appropriations    for   erection,    repair, 

or  furnishing  of  building  or  improvements,  1331. 

Interested  parties  not  to  act  as  Government  agents, 

1326. 
Members  of  Congress  interested  in,  1333,  1334. 

taking  consideration  for  procuring,  1332,  13.33. 
Omitting  to  file  return  in  returns  office,  1119. 
Contractors  refusing  to  comply  with  l<iavy  orders  dur- 
ing War,  1413. 
Contributions  by  private  parties  to  public  officers  or 

emploj^ees,  1470. 
Coimterfeiting  Government  seal,  etc.,  1489. 
Courts-martial;  public   officers   acting   as   attorneys 

before,  or  before  departments,  1333. 
Criminal  code,  1316-1355. 
statutes,  defined,  8. 
interpretation  of,  23. 


C  RIMES— Continued . 

Currency;  checks  for  less  than  one  dollar  not  to  be 

issued,  1337. 
Decorations  of  foreign  nations;  unauthorized  wearing 

of,  1515,  1516. 
Defensive  sea  areas;  offenses  concerning,  1327. 
Deficiencies  incurred  in  violation  of  law;  fine  and 

imprisonment;  dismissal,  1104, 1105. 
Deserting  the  mail,  1339. 
Desertion;  enticing   from    Navy;  assisting   deserters 

etc.,  1326, 1327. 
Destroying  mail  matter,  1338. 

public  property  during  war,  1504,  1505. 
Disbursing  officers- 
Converting,  loaning,  depositing,  withdrawing,  or 

transferring  money  contrary  to  law,  1329. 
Embezzlement,  1329-1331. 
Exchange  of  funds  by  custodians,  etc.,  1330. 
Failure  to  deposit  money  as  required,  1330. 

to  render  accounts,  1330. 
Issuing  checks  for  less  than  one  doUar,  1337. 
Making    unauthorized    exchange    of  funds;  sus- 
pended or  dismissed,  1100. 
Moneys  deposited  by;  failure  safely  to  keep,  etc., 

1329,  1330. 
Taking  receipt  for  larger  sum  than  paid,  1329,  1331. 
Trading  in  funds  or  property.  Federal  or  State, 
1332. 
Eight-hour  law  violations,  1220. 
Elective  franchise;  offenses  against,  1321. 
Embezzlement — 

Arms,  stores,  money,  etc.,  furnished  for  the  naval 

service,  1325. 
Disbursing  officers,  etc.,  1329-1331. 
Evidence  of;  records,  etc.,  1330, 1331. 
Indictment  for,  1330. 
Mail  matter,  133S. 

Money  or  property,  public  or  private,  by  pubUc 
officer, 1331. 
stores,  etc.,  furnished  for  naval  service,  1325. 
Naval  personnel,  public  or  private  money    or 

property;  insurrection,  1170. 
Postal  employees,  1344. 
Post-office  property,  1337. 
PubUc  money  or  property,  1328. 
Enlisting  in  foreign  service  within  United  States,  1318. 

to  serve  against  United  States,  1318. 
Envelopes,  penalty,  fradulent  use  of,  1345. 
Espionage,  1482. 
Exclusive  jurisdiction  of  United   States,   1348-1351, 

1353,  1354. 
Explosives  not  mailable,  1342, 1343. 

transportation  of ;  naval  forces  excepted,  1345, 1346. 
Exportation  of  arms,  etc.,  in  violation  of  law,  1488. 
Extortion  by  informer,  1336. 

by  officials,  1329. 
Extradition  from  foreign  government;  naval  forces 

used  to  protect  accused,  1167. 
Fading  to  report,  to  civil  or  rmlitary  authority,  1336, 

1337. 
False- 
Accounts,  naval  personnel;  insurrection,  1170. 

records,  reports,  etc.,  1.368. 
Acknowledgments  by  officer,  1323. 
Certificates  or  writings,  not  otherwise  punishable, 

1332. 
Impersonation  of  officer,  1323. 
Receipts,  1324. 

Returns;  naval  personnel;  insurrection,  1170. 
Falsification  of  records,  1336. 
Felonies  defined,  13.55. 


1605 


INDEX. 


CRIMES— Continued . 

Foreign  commission  to  serve  against  friendly  power; 
accepting,  131 S. 

governments;  correspondence  with,  1317. 

vessels;  augmenting  armed  force  of,  1319. 
Forged  papers;  having  in  possession,  1323. 
Forgery  of  bonds;  public  records,  or  other  wTitings_ 
1322. 

deeds,  powers  of  attorney,  receipts,   or    other 
writings,  1322,  1323. 

discharge  certificate,  naval  service,  1473. 

money  orders  or  signatures  thereon,  1343,  1344. 

seal,  executive  departments,  or  of  naval  pass  or 
permit,  etc.,  1489. 
Fornication ,  13M. 

Fortifications,  etc.,  injuries  to,  1327. 
Fraudulent  claims,  1324. 

for  wages,  etc.,  1323. 
General;  not  specified;  pianishment.  Navy,  99&-1002. 

provisions  relating  to,  1316-1355. 
Hard  labor;  power  to  impose,  135.'). 
Hiring  out  labor  of  United  States  prisoners,  1198. 
Incest;  definition  and  punishment,  13.54. 
Indecent  matter  on  wrappers  of  mall  or  postals,  1341 . 
Infamous,  defined,  118. 
Influencing  legislation;  punishment,  1527. 
Insurrection;  enlisting  to  serve  against  United  States, 
1318. 

general  provisions  relating  to,  1169-1172. 

inciting  rebellion,  etc.,  1317. 

mailing  matter  urging,  1489, 1490. 

use  of  militia  to  suppress,  69. 
Intoxicants  not  mailable,  1342, 1343. 

prohibition  of,  near  miUtary  camps  and  to  persons 
in  uniform,  etc.,  1477,  1478. 
Larceny,  1324. 

arms,  stores,  money,  etc.,  furnished  for  the  naval 
service,  1325. 

books,  maps,  records,  etc.,  1335, 1336. 

mail  matter,  1338. 

personal  property  of  United  States,  1328. 

post-office  property,  1337. 

private  property,  1350. 

pubUc  money,  property,  records,  etc.,  1328. 

value  of  written  instrument,  1350. 
Libelous  or  indecent  matter  on  wrappers  of  mail 

matter,  1341. 
Lottery  circulars,  etc.,  not  mailable,  1341, 1342. 

tickets;  importing,  etc.,  1346,1347. 
Mail  bags;  injuring,  1337. 

Mailing  matter  contrary  to  law;  espionage  act,  1489, 
1490. 

obscene  matter;  inciting  arson,  murder,  etc.,  1340. 
Maiming,  etc.,  1350. 
Manslaughter;  attempt  to  commit,  1349. 

definition  and  punishment,  1349. 

place  where  committed,  1355. 
MiUtary   or    naval    expedition;   organizing  against 

friendly  power,  1319. 
Military  reservations;  unlawfully  entering,  1327. 

State  laws  applicable  in,  1351. 
Misappropriation  of  arms,  stores,  money,  etc.,  fur- 
nished for  the  naval  service,  1325. 
Misdemeanors  defined,  1355. 
Misprision  of  felony,  1.3.36,  1337. 

of  treason,  1317. 
Money  orders;  issuing  unpaid  for,  1340. 
Murder,  assault  with  intent  to  commit,  1349. 

attempt  to  comjnit,  1349. 

definition  and  i)unishment,  1349. 

mailing  matter  tending  to  incite,  1340, 1341. 


CRIMES— Continued . 

Murder^  place  where  committed,  1355. 

Mutiny  or  rfevolt,  or  inciting  same,  on  shipboard, 

1351, 1352. 
Naval  clothing,  military  stores,  etc.;    unlawful  imr- 

ch;ise  of,  1324,  132.5. 
National  defense;  offenses  relating  to,  1327. 
Naval  forces — 

Employed  to  enforce  laws  against  slave  trade, 
1347, 1348. 
to  enforce  neutrality  laws,  1319, 1320. 
Excepted  from  restriction  on  transportation  of 
explosives,  1345,  1346. 
Naval  oflacers — 

Having  armed  forces  at  poUs,  1321. 
Interfering  with  elections,  1321. 
Intimidating  voters,  1321. 
Prescribing  qualifications  for  voters,  1321. 
Naval  personnel's  right  to  vote  not  restricted  by 
criminal  code,  1321. 
reser^^ations;  offenses  in,  1348-1351;   1353,1354. 

State  laws  applicable  in,  1351. 
Reserve  Force  badge  or  button;    unauthorized 
wearing  of,  1447. 
Neutrality;  offenses  against,  1318-1320;  14SG-1488. 
Obscene  books,  etc.;  importing  or  transporting,  1347. 
literature;  circulating,  etc.,  1353. 
matter  vmmailable,  1340. 
Obstructing  the  mail,  1339. 
Offenses — 

Against  elective  franchise,  1321. 

existence  of  the  Government,  131G-1318. 
foreign  and  interstate  commerce,  1345-1347. 
neutrality,  131.8-1320. 

operations  of  the  Government,  1322-132S. 
postal  service,  1337-1345. 
public  justice,  1335-1337. 
In  the  territories,  or  elsewhere  within  the  exclusive 

jurisdiction  of  the  United  States,  1353-1354. 
Relating  to  official  duties,  1328-1335. 
Within  the  admiralty   and  maritime   and   the 
territorial  (or  exclusive)  jurisdisction  of  United 
States,  1348-1351. 
Penalty  envelopes;  fraudulent  use  of,  1345. 
Perjury,  and  subornation  of  perjury,  1335. 
Piracy  and  other  offenses  upon  the  seas,  1351-1353. 
Poisons,  not  mailable,  1342, 1343. 
PoUtical  contributions,  1334,  1335. 

by  executive  oflScers  and  employees,  783, 1180, 1181. 
Postage;  collecting  excessive,  1339, 1340. 
failure  to  account  for  amoimt  due,  1340. 
fraudulently  using  penalty  envelopes  to  avoid, 

1345. 
stamps;  unlawfully  pledging  or  seUing,  1340. 
Postal- 
Employee  detaining,  destroying,   or  embezzling 
maU  matter,  1338,  1339. 
embezzling,   loaning,    pledging,    exchanging, 
depositing,  etc.,  pastal  funds  contrary  to 
law,  1344. 
liable  notwithstanding  omission  to  take  oath, 
1345. 
Service;  offenses  against,  1337-1345. 
Principals  defined,  1354. 
Prize  fight  films  and  pictures;  mailing,  transporting, 

receiving,  etc.,  forbidden,  1371, 1372. 
Prize;  interference  with  disposition  of,  etc.,  1325. 
Public  moneys;  withholding,  10%. 
Purchase  of  naval  clothing,  etc.,  1324,  1325. 
Rape;  assault  with  intent  to  commit,  1349. 
piuiishment,  1349. 


1606 


INDEX. 


CRIMES— Continued. 

Rebellion  or  insurrection;  inciting,  etc.,  1317. 
Receiving  stolen  goods,  etc.,  1350, 1351. 

stolen  public  property,  1328. 
Records — 

And  files;  unauthorized  removal  and  use  of,  1326. 
Destroying,  removing,  stealing,  or  attempting  to 

do  so,  1335, 1336. 
Falsification  of,  1336. 
Recruiting  for  service  against  United  States,  1318. 
Regulations,  violations  of,  198. 
Reports;  failure  to  make  at  time  required  by  law  or 

regulation,  1331. 
Robbery,  1350. 

mail  custodian,  1339. 
personal  property  of  United  States,  1328. 
Seditious  conspiracy,  1317. 
Seduction;  carnal  knowledge  of  female  imder  sixteen, 

1349. 
Selling  unlawfully  arms,  stores,  etc.,  furnished  for 

naval  service,  1325. 
Slave  trade;  seizure  of  vessels  in,  etc.,  1347, 1348. 
State  laws  adopted  in  Federal  reservations,  1351. 
Territorial  jurisdiction,  1348-1351, 1353, 1354. 
Threatening  matter  on  wrapper  of  mail,  1341. 
Threats  against  President,  1469. 
Timber  depredations,  1088, 1089. 
Treason,  1316,  1317. 

mailing  matter  advocating,  1489, 1490. 
Uniform  of  foreign  nations;  unauthorized  wearing  of  • 
1515, 1516. 
of  Navy,  etc.,  unauthorized  wearing  of,  1414, 1415. 
Vessels;  abandonment  of  mariner  in  foreign  port,  1352. 
arming  against  friendly  powers,  1319. 
breaking  and  entering,  etc.,  1352, 1353. 
destroying,  wrecking,  setting  on  fire,  etc.,  1353. 
failing  to  assist  persons  at  sea,  1372. 
in  distress;  pltmdering,  1352. 
in  slave  trade,  seizure  of;  use  of  naval  forces,  1347, 

1348. 
maltreatment  of  crew  by  oflJcers,  1351. 
mutiny  or  revolt,  or  inciting  same,  on  board,  1351, 

1352. 
of  the  United  States;  defined,  1353. 
War  time  oflenses;  espionage,  etc.,  1482-1490. 
CRIMINAL  CODE: 

See  Crimes. 
CRianNATION: 

See  Sclf<rimination. 
CROSS-EXAMINATION: 

Witnesses  before  court  of  inquiry,  1056. 
in  departmental  investigations,  219. 
CROSS-INTERROGATORIES : 
See  Depositions. 

Claims  pending  in  departments,  219. 
CRUEL  AND  UNUSUAL  PUNISHaiENTS: 
Court-martial  sentences,  1063. 
Decisions  relating  to,  134. 
Due  process  of  law,  125. 

Flogging,  branding,  marking,  or  tattooing,  prohibited 
in  the  Navy,  1034. 
CRUELTY: 

Toward  subordinates;  punishment  for  in  Navy,  984. 
CRUISE: 

Reports  on  return  from;  men  entitled  to  honorable 
discharge,  573. 
CULPABLE  INEFFICIENCY: 

Punishment  for,  Navy,  984. 
CUMULATIVE: 

Evidence;  accused  not  entitled  to  process  for  obtain- 
ing, 132. 
Sentences;  courts-martial,  1063. 


CUSTODY: 

Departmental  property  and  records,  193, 194. 
Prisoners;  Secretary  of  Navy  does  not  have,  404. 
CUSTOMS: 
See  Usages. 

Inspection  of  naval  vessels,  260. 
Navy;  equivalent  to  regulation,  885. 
power  of  President  to  changr,  59. 
Protection  of,  by  naval  forces,  1172. 
DAILY  AVERAGE: 

Authorized  number  of  enlisted  men,  537,  1396. 
DAIRY: 

Naval  Academy,  770-771. 
DAMAGES: 

Acquittal  by  court-martial  no  bar  to  suit  against  ac. 

cused,  1049. 
Civil  liability  of  commanding  officer  for  illegal  acts,100'5. 
Claims  for;  against  captor  in  prize  cases,  1139. 
caused  by  American  forces  abroad,  1504. 

by  naval  aircraft;  settlement;  report  to  Con- 
gress, 1545. 
by  naval  forces  abroad,  1508. 
by  naval  personnel,  1527. 
by  naval  vessels,  1358, 1359. 
Contractors,  delinquent;  forfeiture  of  double  contract 
price,  1111. 
forfeitiue  of  penalty,  1113. 
Contracts;  deUnquent  bidder  charged  with  difference 

in  cost,  1112, 1113. 
Officers  sued  for  official  acts,  350,  351 . 
Unliquidated,  accounting  officers'  jurisdiction,  234. 
DANISH  WEST  INDIES: 

See  Virgin  Islands. 
DATE: 

Bee  Antedating;  Appointments. 
Appointment — 

Midshipman,  746. 
When  service  commences,  838. 
Bond,  480. 
Commissions,  103. 

conclusive  upon  accounting  officers,  238. 
defined,  668. 

is  date  stated  in  commission,  652. 
erroneous;  jurisdiction  of  courts  to  correct,  834^  835. 
fictitious,  669. 

length  of  service  for  promotion;   whether  com- 
mences from,  464,  465. 
midshipmen  on  graduation,  1479. 
pay  graduates  of  Naval  Academy,  1221,  1222. 

on  promotion,  830-&32. 
precedence;  Army  and  Navy,  667. 
commanding  officers,  576. 
dental  oflacers,  1421. 
Coast  Guard  and  Navy,  1456. 
governed  by,  1390,  1421,  1429,  1456,  1511. 
line  officers,  068. 
Naval  Reserve  Force,  1511. 
Navy  and  Marine  Corps,  667. 
officer  holding  two  commissions,  669. 
staff  officers,  1429. 
promotion  of  naval  officers,  1390. 
seniority  determined  by,  652. 
Death,  to  be  entered  in  ship's  books,  995. 
DeUvery  of  naval  supplies;  bidders  informed  of  re- 
quirements, 1111. 
Desertion,  1057, 1060. 

to  be  entered  in  ship's  books,  995. 
Discharge,  826. 

enlisted  man,  568,  569. 
Enhstment,  546,  790. 

to  be  entered  in  ship's  books,  995. 


1607 


INDEX. 


D  ATE— Cont  inued . 

Examination  for  promotion,  710,  711. 

Kxpiration  of  enlistment,  561. 

Graduation,  midsliipmen,  688. 

Pay  of  naval  olTiccr;  when  commcncp,s  on  original 

entry,  829. 
Promotion;  antedating  rank,  649-651. 
Rank- 
Promotion  after  suspension,  731-733. 
Marine  Corps,  1159. 
pay  computed  from,  1178. 
Resignation,  826. 
Retirement,  591,  592,  638-640,  912. 
Vacancy — 

Commencement  of  pay  on  promotion,  naval  officer, 

832. 
Created  by  retirement,  649, 1431 . 

Advancement  of  officer  for  heroism,  734. 
N'cssels  missing;  fixing  date  of  loss,  268. 
DEAD  BODIES: 

Authority  of  naval  medical  officers  to  perform  autop- 
sies, 460,  461. 
DEAF: 

Accused  unable  to  hear  witnesses,  126. 
DEALERS: 

Bids  submitted  by  persons  who  are  not,  1114. 
DEATH: 

See  Capital  punishment;  Chief s  of  bureaus;  Line  of  duty . 

Additional  number  officer;  vacancy  not  filled,  1275, 
1276. 

Autopsies  performed  by  naval  medical  officers,  460, 

461. 
Closing  of  departments  for  ex-official,  forbidden,  1220. 
Compensation  for;  naval  persormel,  1498-1501. 
Date  of,  to  be  entered  in  ship's  books,  268,  995. 
Deserter  who  fraudulently  enlisted;  payment  of  gra- 
tuity, 554. 
Disbursing  officer;  allowance  to  owner  of  lost  check 
issued  by,  274. 
duplicate  checks,  1099. 
Disposition  of  eflects,  deceased  persons;  786,  995,  1395, 

1503. 
Enlisted  men- 
Payment,  eflEects  lost  on  sunk  or  captured  vessels, 
269. 
arrears  due,  264. 
Flags  issued  free  of  cost,  used  for  draping  coffins,  1397. 
Funeral  expenses,  537,  905,  906,  1103,  1.305,  1306,  1498. 
Gratuity,  not  payable  to  persons  in  service  on  or  after 
October  6,  1917;  1500. 
six  months  pay,  naval  personnel,  1546, 1547. 
Head  of  department,  temporarily  filling  vacancy,  212, 

214. 
Inmates  of  Naval  Home;  disposition  of  personal  eflects, 
1395. 
St.  Elizabeths  Hospital;  disposition  of  moneys, 
1296. 
Medal  of  honor,  Navy  cross,  etc.,  awarded  after,  1522. 
Member  of  court-martial  before  signing  record,  1034. 
Officer  of  department,  temporary  appointment,  212, 
214,216. 
promoted;  acceptance  presumed,  97. 
Presumption  of;  enlisted  men  on  missing  vessels,  268. 
Promotion  pending;  effect  of,  652. 
Public  buildings  not  to  be  closed,  1220. 

draped  in  mourning,  1220. 
Recording,  naval  personnel,  1500. 
Settlement  of  accounts;  payment  of  funeral  expenses  to 
claimants,  1305, 1306. 
DEBTS: 

See  Indebtedness. 


DECEASED: 

See  Death. 
DECK  COURTS: 

See  Courts  Martial. 

(ieneral  provisions  relating  to,  1308, 1309. 
DECORATIONS: 

Acceptance  of  foreign,  by  American  forces,  1516. 
Interelianged    between    United    States   and    foreign 

military  forces,  1516. 
President  may  confer  upon  foreign  militarv  forces, 

1517. 
Public  wearing  of  foreign,  forbidden,  1187. 
Tendered  through  State  Department,  1187. 
Unauthorized  wearing  of  foreign,  1515,  1516. 
Wearing  of  foreign,  by  American  citizens,  1516. 
DEEDS: 

Forgery  of,  1322,  1323. 
DE  FACTO: 

See  Fraudulent  enlistment. 
Congressman;  not  legally  elected,  33,  747. 
Enlisted  man,  discharge  of,  62,  567. 
Enlistment,  548. 

Naval  officer;  erroneously  promoted,  70S,  709. 
Retired  officers,  641,  912. 
Unauthorized  office;  no  salary  for,  1066. 
DEFENDANT: 

See  Accused;  Courts-martial. 

Court  of  inquiry,  entitled  to  cross  examine  witnesses, 
1.32. 
DEFENSE: 

See  Courts-martial. 
Illegal  order  not,  55. 
DEFENSIVE  SEA  AREAS: 

Offenses  relating  to,  1327. 
DEFICIENCIES: 

Contracts;  butter,   cheese,   and    tobacco,    for   Navy 
authorized  for  more  than  one  year,  1113. 
naval  supplies,  in  excess  of  appropriations,  1116, 
1288. 
Penalty  for  incurring,  1104,  1105. 
Restrictions  on  incurring,  1104,  1105,  1116,  1187,  1238, 
1288,1381. 
DEFINITIONS: 

Particular  words  in  Federal  statutes,  185,  186, 1355. 
DEGRADATION: 

Witnesses;  protection  of,  123, 1310. 
DELAYS: 

Business  of  executive  departments,  344. 
Examination  of  officer  for  promotion,  734. 
Proceedings  of  general  court-martial,  1029. 
Promotion;  new  physical  examination  not  required, 

709. 
Retiring  boards;  President's  action,  617. 
DELEGATION  OF  POWERS: 

Appointment  of  officers  cannot  be  delegated,  207,  533. 
Approval  of  bonds,  487. 

Commanding  officers;  aid  or  executive  acts  for,  670. 
Heads  of  departments;  to  subordinates,  193,  194,  213. 
President;  need  not  personally  sign  action  in  court- 
martial  cases,  1040-1042. 
to  flag  officers;  award  of  Navy  crosses,  1522. 
to  Secretary  of  the  Navy;  action  on  records  of 
boards,  1481,  1482. 
approval  of  regulations,  787. 
to  subordinates,  77,  78. 
Regulations  for  naval  forces.  Congress  may  authorize 

executive  to  make,  59,  195,  784,  787. 
Reviewing  authority,  court-martial  cases,  must  act 

personally,  1040. 
Secretary  of  the  Navy,  supervisory  power  over  chiefs 
of  bureaus,  360. 


1608 


INDEX. 


DELEGATION  OF  POWERS— Continued. 

Signature  of  official  papers,  351. 
Subordinate  officers  act  for  President,  77,  78. 
DEUNQUEXCY: 

Bidder  failing  to  furnish  required  bond,  1112, 1113. 
Contractors,  1111, 1113, 1U4. 

Disbursing  officers;  allowed  to  remain  in  office,  494. 
money  requisitions  disapproved  for,  1225,  1226. 
pay  withheld;  suit  against  sureties,  1072. 
proceedings  against,  427,  428. 
reported  to  Congress,  1226. 
suits  against,  1097, 1098. 
suit  on  bond;  statute  of  limitations,  1199. 
DEMANDS: 

See  Claims. 
DENTAL  CORPS: 

Organization;  number  of  officers;  appointment;  rank; 
promotion;  pay  and   allowances;  retirement,   etc., 
1421, 1422. 
Original  appointments  not  affected  by  act  of  March  4 

1917; 1473. 
Part  of  Medical  Department  of  Na\-j-,  1421. 
Pay,  806, 1421, 1422. 
Qualifications  for  appointment,  1422. 
Service  credited  to  officers  for  pay  and  promotion, 
1473. 
DENTAL,  RESERIT:   CORPS: 

Navy;  laws  relating  to  repealed,  1423, 1509. 
DENTAL  TREATMENT: 
Court-martial  prisoners,  903. 
Naval  officers,  904. 
DEPART3IENT: 

See  Executive  departments;  Navy  Department. 
Definition  of,  191. 
DEPART>IENT  OF  JUSTICE: 
See  Attorney  General. 
Argument  of  cases  in  court,  322. 
Counsel  furnished  to  departments  investigating  claims, 
220. 
to  Heads  of  departments,  221. 
to  naval  officer  in  foreign  country,  224. 
Duties,  222,  323. 

General  provisions  relating  to,  281-326. 
Litigation;  control  of,  2S1. 
Naval- 
Officers  detailed  to  duty  under,  578. 
Solicitor,  282. 

duties  assigned  to  Judge  Advocate  Oeneral, 
1186,  1187. 
Opinions  to  be  rendered  by  officers  of,  323. 
Subordinates;  duties  of,  323. 

sent  into  any  State  in  connection  with  suits,  326. 
DEPARTMENT  OF  THE  NAVY: 

See  Navy  Department. 
DEPENDENTS: 

Officers  and  enlisted  men;  death  gratuity  payable  to, 
1546, 1547. 
quarters  furnished  for,  696. 
transportation  furnished  for,  1.535, 1536. 
DEPOSITIONS: 

Admissibility  in  State  courts,  125. 
Attorney  General  may  secure  in  any  State,  323. 
Chiefs  of  bureaus  making  for  use  in  courts,  424. 
Claims  pending  in  departments,  how  obtained,  219. 
Evidence  before  court-martial,  131,  1023, 1311, 1312. 
For  use  in  States,  Territories,  or  foreign  countries,  424- 
Headsof  departments, assistants, required  tomake, 422- 
Manner  of  taking  and  transmitting,  425. 
Taking  of,  when  no  commission  appointed,  425. 
Use  of  in  Federal  courts,  421. 
Witness  fees  allowed  for  giving,  425. 


DEPOSITS: 

Contrary  to  law;  postal  employees,  1344. 
public  moneys,  1329. 
unauthorized  banks,  1098. 
Deductions  not  to  be  made  from  public  moneys,  prior 

to,  1095,  109G. 
Disbursing  officers,  1096. 

failure  to  make  when  required,  1.3.30. 
Enlisted  men;  furloughed  without  pay,  537. 
Marine  Corps,  951,  1295. 
Navy,  877, 1202. 

rated  as  mates  or  appointed  as  warrant  officers,  524. 
Proposals  for  purchase  of  naval  vessels  must  be  accom- 
panied by,  1192. 
DEPUTY: 

Disbursing  clerk;  premium  on  bond  of,  211. 
DEREUCTS: 

Marking  and  removal  of,  122:5. 

Permanent   appropriation   for  payment   to  salvors, 

under  Navy  Department,  1100. 
Removal  of  by  naval  vessels,  1284. 
DESCRIPTIVE  LIST: 

Enlisted  men    furnished  with  whenever  sent  from 
ship  or  transferred  to  other  vessels,  995. 
to  be  entered  in  ship's  books,  995. 
DESERTERS: 
See  Desertion. 
Aiding  or  assisting;  punishment  for,  789,   790,  985, 

1326,  1327. 
Applicants  failing  to  complete  enlistment,  790. 
Apprehending;  estimates  and  appropriations  for,  1103. 
.Ajrest  of,  117,  987, 1103, 1311. 
Attorneys  assisting,  790. 

Convicted;  appointment  as  officer  of  the  Navy,  573. 
Enlistment  of,  551. 

Entertaining,  punishment,  Na\-y,  985. 
Failing  to  give  notice  of,  to  naval  superior,  985. 
Forfeiture  of  pay  by,  869,  870. 
In  time  of  war;  penalty  for  enlistment  of,  994. 
Naval,  enlisting  in  Army;  punishment  for  retaining, 

1.544. 
Receiving,  without  giving  notice  to  naval  superior,  985. 
Record  of  in  ship's  books,  995. 
Status  not  affected  by  resolution  terminating  war  for 

certain  purposes,  1558. 
Reward  for;  checkage  of  amount  against  pay  unau- 
thorized, 1004. 
Time  lost  required  to  be  made  good  before  completion 

of  enlistment,  987,  988. 
Void  enlistment,  miaors  serving  under  cannot  be,  976, 
977. 
DESERTING  MAILS: 

By  any  person  in  charge,  1339. 
DESERTING  TRUST: 

In  time  of  war,  or  aiding  or  enticing  others  to,  979. 
DESERTION: 

Acquittal  of,  effect,  988. 

Aiding  others  to  desert  in  time  of  peace,  punishment. 

Navy,  985. 
Attempting  to  commit,  in  time  of  peace;  punishment, 

Navy,  98,5. 
Charge;  removal  of,  civil  war  cases,  1200,  1201,  1272. 
Citizenship  rights  forfeited  by,  73,  74,  140,  9.M,  1077, 

1078. 
Continuing  offense,  75, 1060, 1061. 
Date  of— 

Offense,  1057,  1000. 
To  be  entered  in  .ship's  books,  995. 
Definition  of,  987,  989. 
During  battle,  980. 
Enlistment  not  completed,  790. 


1609 


INDEX. 


UKSKRTION— Continued . 
Knticing — 

Orassisting  others  to  desert,  789, 790, 988, 1326, 1327. 
Time  of  peace,  Na^'y,  985. 
Time  of  war,  Navy,  979. 
l'"orfoitures  credited  to  uaval  hospital  fund,  1273. 
Fraudulent  enlistment  not  a  defense,  977. 
Increasing  penalties,  not  ex  posto  facto,  7-5. 
Intent  to  remain  permanently  absent;  commissioned 

officer,  9S9. 
Minor  serving  under  void  enlistment  can  not  commit, 

976,  977. 
Pardon  to  restore  citizenship  rights,  84. 
Resignation  of  officer  not  accepted,  989. 
Rewards  for  arrest  of  deserters,  118. 
Statute  of  limitations;  time  of  peace,  1060-1062. 

Time  of  war,  1057. 
Time  of  war,  punishment  for,  Navy,  979. 
DESICCATED  VEGETABLES: 

Purchase  of  for  Na\-y,  1115. 
DESTITUTE: 

Seamen,  575. 
DETACH: 

Definition  of,  443,  954. 
DETACHMENTS: 

^^arine  Corps,  936. 
DETAILS: 

.'^ee  Active   duty;  Civil   establishment;    Foreign   shore 
duty;  Line  officers;  Naval  forces;  Pay  of  Naval  Estab- 
lishment; Sea  service;  Vessels  of  the  Navy. 
Appropriations  transferred  for  expenditure  by  bureau 

or  department  performing  service,  1409, 1536. 
Civil  employees — 

From  outside  of  District  of  Columbia,  restricted, 

1188,  1290,  1384. 
Government  Printing  Office;  restrictions  on,  1359, 

1360. 
Restrictions  on  extra  pay  or  allowances,  1066-1071 . 
Toimauthorized  boards,  commissions, etc.,  1316. 
Within  department,  203. 
Coast  Guard  personnel;  duties,  1456. 
Duties  not  military;  court  martial  jurisdiction  with 

relation  to,  977. 
Enlisted  men — 

Of  20  years'  service  preferred  for,  1297, 1298. 
To  Dominican  Republic,  1502. 
executive  departments,  337. 
Haiti,  1416. 

nautical  school  in  Philippines,  1297. 
Executive  departments  to  assist  Smithsonian  Institu- 
tion in  acquisitions  for  Zoological  Park,  1204. 
Fisheries;  heads  of  departments  to  assist  commis- 
sioner of,  1133. 
Line  officers,  to  duty  under  staff  officers,  1359. 
Marine  Corps — 

As  cooks;  additional  pay  for,  1299. 

Shore  duties,  955. 

Staff  departments,  922, 1460, 1461. 

to  duty  away  from  headquarters,  922. 
To  naval  vessels,  954. 
To  duty  with  Army,  956. 
Naval  forces — 

Enforcement  of  immigration  law,  1081. 

of  sponge  law,  1289,1290. 
Protection  of  accused  extradited  from  foreign  gov- 
ernment, 1167. 
of  fur  seals,  1387. 
of  timber,  1088. 
Suppression  of  piracy,  1130, 1131. 
To  enforce  regulations,  regattas  or  marine  parades, 
1300, 1301. 


DETAILS— Continued. 

Naval  forces— Continued. 

To  prevent  aliens  fishing  in  Alaskan  waters,  1289. 
remove  derelicts  at  sea,  1284. 
.Naval  medical  officer — 

To  advisory  board:  Public  Health  Service,  1279. 
Hureau  of  War  Risk  Insurance,  1495. 
Red  Cross,  1436,  1437. 
Naval  officers — 

Aid  or  executive  of  commanding  officer,  669,  779. 
And  men;  transportation  of  families  and  house- 
hold elTects,  153'),  I5:;r). 
As  attache  to  diplomatic  officer,  828. 
commandant  of  navy  yard,  779. 
counsel  for  examining  board,  723. 
firstlieutenant  of  station  or  vessel,  577. 
governor  of  Virgin  Islands,  1470. 
professors  at  Naval  Academy;  relative  rank 

with  Army,  667. 
secretaries  and  clerks  at  sea,  1182. 
storekeeper  at  Naval  Academy,  770. 

on  foreign  station,  579. 
superintendent.  Naval  Observatory,  1276, 1277. 
supervisor  of  New  York  Harbor,  1198,  1199. 
Ineligible  for  civil  positions  at  navy  yards,  770,  780. 
Power  of  Congress  and  President,  578. 
Shore  duty — 

In  time  of  war  or  emergency;  eligibility  for 

promotion,  1434. 
Must  be  required  by  public  interests,  1191, 
1218, 1219. 
To  advisory  committee  for  aeronautics,  1402. 
Alaska,  1393. 
aviation  duty,  1437-1440. 
Brazil;  leave  of  absence,  etc.,  1399. 
Coast  and  Geodetic  Survey,  1151, 1215. 
command  squadrons  with  rank  of  flag  officer, 

576. 
Dominican  Republic,  1502. 
Department  of  Justice,  578. 
educational  institutions,    435-441,    701,    1184, 

1185,  1247,  1248. 
engineering  duty,  1435. 
examining  boards  upon  repairs  to  vessels,  776, 

777. 
Haiti,  1416. 

light-house  estaliUshment,  1149,  1298. 
Nautical  Almanac  Office,  391. 
Naval  Academy;  duties;  punishment  for  ne- 
glect, 1287. 
Naval  Observatory;  board  of  visitors  to  recom- 
mend, 1276. 
nautical  schools,  1368. 

Navy  Department,  213,  215,  333,  337,  3G4,  466. 
assistants  to  chiefs  of  bureaus  and  Judge- 
Advocate    General,  466,   1222,  1224, 
1261,  1284,  1418. 
to  Chief  of  Naval  Operations,  1418. 
chiefs  of  bureaus,  362. 
Hydrographic  Office,  389,  1508,  1545. 
ocean  mail  vessels;  1216, 1217. 
Shipping  Board,  1466. 
South  American  Repubhcs,  1556. 

commercial  interests,  576. 
vessels  of  the  Navy,  775. 
War  Department,  507,  578. 

additional  compensation  not  allowed,  1071 . 
supervisor  of  New  York  Harbor,  1198. 
Payment  for  services  rendered  by  one  department  for 

another,  579,  1409,  1536. 
Petty  officers  to  educational  institutions,  441. 


1610 


INDEX. 


DETAILS— Continued. 
Rear  admirals — 

And  captains  to  command  fleets  and  subdivisions, 

1481. 
To  selection  boards,  1430. 
Shore  duty  beyond  seas,  defined,  127'>. 
Smithsonian  Institution;  executive  departments  to 
assist  in  acquisitions  for  Zoo,  1204. 
DETECTIVES: 

Arrest  of  deserters  by,  118. 
Employment  of  restricted,  118, 1220. 
DETENTION: 

Defined;  voluntary  agreement  not  included,  559. 
Enlisted  men;  after  expiration  of  enlistment,  542,  543, 
555-562,  1064. 
pay,  873,  874,  883. 
DIPHTHERIA: 

Immunization  injections;  naval  personnel  required  to 
submit  to,  458. 
DIPLOMATIC  SERVICE: 

Jurisdiction  of,  and  military  authorities,  576. 
Naval  officer  appointed  in,  vacates  office,  579. 
DIRECTOR: 

Civilian  marksmanship;  marine  officer  eligible  for  ap- 
pointment as,  1465. 
DISABIUTT: 

SeeLineof  duty;  Retirement;  Veterans;  War  Risk  act. 
Admission  to  National  Home  for  Disabled  Volunteer 

Soldiers,  1400,  1401. 
Artificial  limbs  aUowed,  1156,  1157,  1181, 1217. 
Civil  employees;  compensation  for,  1467-1469. 

retirement  for,  1538,  1539. 
Compensation  for,  naval  personnel,  1498-1501. 
Disciiarge;  enlisted  men;  not  incurred  in  line  of  duty; 

refund  of  enlistment  bounty,  1292,  1294,  1298. 
Enlisted  men;  allowances  to,  1154-1157, 1498-1501. 
separate  compartment  on  vessels  for  treatment  of, 
995. 
Incident  to  the  service;  retirement,  603. 
Mental;  retirement  for,  593. 
Misconduct  causing;  absence  from  duty  on  account  of, 

1436. 
Soldiers,  sailors  ,  and  marines;  furlough  certificates;  re- 
duced railroad  fares,  1554. 
Trusses  furnished  to  enlisted  men  of  Navy,  1185. 
DISAPPROVAL: 

Court-martial  proceedings;  effect  of,  988,  1008,  1009, 
1038. 
DISASTER: 

Marine,  construed,  272. 
DISBURSING  AGENTS: 

Public  buildings,  261. 
DISBURSING  CLERKS: 

Authority  limited  to  payments  not  requiring  judg- 
ment, 212. 
Bonds  appUcable  to  temporary  substitute,  1315,  1316. 
Deputy,  premium  on  bond,  211. 
Detailed  to  disburse  moneys  for  another  department, 

212. 
Employed  in  excess  of  appropriations,  211. 
Executive  departments;  appointment,  bond,  and  com- 
pensation, 209. 
Held  to  be  clerks,  206. 
Position  can  not  be  abohshed  without  statutory  author- 

ity,  204,  212. 
Responsibility  for  payments,  212. 
Temporary  absence;  substitute,  1315, 1316. 
DISBURSING  OFFICERS: 

See  Accounting  officers;  Accounts;  Bonds;  Crimes;  Sup- 
ply Corps. 


DISBURSING  OFFICERS— Continued. 
Accounts — 

Failure  to  render,  1330. 

Falsification  of;  punishment,  1368. 

Form  of,  1097. 

Navy  Department  expenditures;   form  of,  1102, 
1103. 

To  be  kept  by;  receipts  and  expenditures,  109S. 
rendered  quarterly  and  when  otherwise  re- 
quired, 1215. 

Unchanged  for  three  years,  279. 
Additional  pay  for  disbursing  money  restricted,  10'>7. 
Advances  of  public  money  restricted,  1099,  1100. 
Acmual  statement  of  expenditures  required  to  be  sub- 
mitted, 226. 
Arrears;  withholding  pay  until  accounting,  1072. 
Checks;  issuing  for  less  than  one  dollar;  punishment, 
1337. 

lost  or  stolen;  dupUcates,  1098, 1099. 

outstanding,  276-278,  1417. 
Commanding  officer  not  required  to  act  as,  574. 
Commissions  and  inquiries;  expenses  of,  not  to  be  paid 

without  special  appropriation,  1105. 
Conversion  of  moneys  by,  1098, 1329. 
Death  of;  duplicate  checks  issued,  1099. 
Decision  of  accounting  officers  may  be  obtained  by, 

1225. 
DeUnquency — 

Money  requisitions  disapproved,  1225, 1226. 

Proceedings  against,  427,  428,  1097,  1098. 

Remaining  in  office  after,  494. 

Reported  to  Congress,  1226. 

Suit  on  bond;  statute  of  limitations,  1199. 

Withholding  pay;  suit  against,  1072. 
Deposit  of  money,  1096. 

contrary  to  law,  1098,  1329. 

failure  to  make  as  required,  1330. 
Disbursements  to  be  made  in  specified  currency,  1100. 
Dismissed  for  making  unauthorized  exchange  of  funds, 

1100. 
Drafts  to  be  promptly  presented  for  payment,  1100. 
Duplicate  checks  issued  for  lost  or  stolen,  1098, 1099. 
Duty,  1098. 

to  keep  moneys  safely,  1098. 
E  mbezzlement — 

Evidence  against,  428. 

General  provisions,  1329-1331. 

Public  or  private  money  or  property,  1331. 
Exchange  of  funds  restricted,  1098,  1100,  13,30. 
Failing  safely  to  keep  public  moneys,  1329,  1330. 
False  accounts,  records,  or  reports:  punishment,  1368. 
Foreign  stations;  appointment  of,  788. 
Fuel  payments;  credit  not  allowed  without  certificate, 

1110,  nil. 
Indebtedness;  failure  to  pay  into  Treasury  reported  to 

Congress,  1226. 
Larceny  of  checks;  dupUcates  issued,  1098,  1099. 
Loans  by,  prohibited,  1098,  1329. 
Lost  or  stolen  checks;  duplicates,  1098,  1099. 
Navy;  accounts  rendered  direct  to  accounting  officers, 
1097. 

amounts  lost  or  unaccounted  for  reported  annually 
to  Congress,  118:3. 
Payment  made  in  specified  currency,  1100. 

of  funds  re(iuired,  when  ordered,  1098. 
Premium  on  sale  of  public  securities,  1100. 
Receipts  for  larger  sum  than  paid  by,  1329,  1331. 
Regulations  governing  duties  of,  786,  1098. 
Relief  from  responsibility  for  losses,  488,  1362,  1363, 
1527, 1528. 


.M641°— 22- 


-102 


1611 


INDEX. 


DISBURSING  OFFICERS— ContinuPd. 

Report  to  Congress  of  expenditures  from  naval  appro- 
priations; Secretary  of  the  Treasury  to  submit,  1183. 
Responsibility  of;  insurer  of  funds,  487. 
Safe-keeping  of  public  moneys  required,  1098. 
Special  agents;  bonds  of,  1095. 
Stolen  checks;  duplicates,  1098,  1099. 
Suspended  for  making  unauthorized  exchange  of  funds, 

1100. 
Time  for  rendering  accounts,  1097, 1215,  1225, 1226. 
Trading  in  funds  or  property,  Federal  or  State,  1332. 
Transfer  of  funds  required  when  directed,  1098. 
Transferring  money  contrary  to  law,  1329. 
Use  of  funds  contrary  to  law,  prohibited,  1098. 
Witlidrawing  money  contrary  to  law,  1329. 
DISCHARGE: 

SeeDismiKsal;  Dropped;  Habeas  corpus;  WhoUy  rcUred . 
Acting  assistant  surgeon;  acceptance  of  another  office, 
529. 

chaplains  failing  on  examination,  1396. 

warrant  ofTicers:  reenlistment,  525. 
Bad  conduct;  illegal;  set  aside  by  Secretary  of  the 
Navy,  1008,  1009. 

men  furnished  with  clothing,  1107. 

not  to  be  executed  in  foreign  country,  1008. 

summary  court-martial  may  adjudge,  1006. 

war  risk  compensation  excluded  by,  1500. 
Certificate — 

Counterfeiting,  569, 1473. 

In  true  names,  1379,  1380. 

Necessity  for,  568. 

Theft  of,  509. 
Character    of;    Navy    Department's    determination 

final,  566. 
Civil  establishment,  99,  338,  IISO,  1388. 
Clothing  outfit  refunded  on,  1292,  1294,  1298, 1402, 1403. 
Commanding  officers  shall  grant,  573. 
Congress,  power  of,  to  remove  officer,  635. 
Continuous-sersice  certificates,  569. 
Court-martial  jurisdiction  after,  63,  567,  974,  991,  1060. 
Date  effective,  568,  569. 

pay  until  notified,  826. 
Deck  courts  may  not  adjudge,  1308. 
De  facto  enlisted  man,  62,  567. 

Disability;  not  in  line  of  duty;  refund  of  enlistment 
bounty,  1292,  1294,  1298. 

preference  in  appointment  to  civil  offices,  1035. 
Disbursing  officers  making  unauthorized  exchange  of 

funds,  1100. 
Dishonorable;  men  sentenced  to  arc  additional  to  en- 
listed strength,  536,  1423, 1463,  1478. 

war  risk  compensation  excluded  by,  1500. 
Due  process  of  law,  navarofficer  unfit  for  promotion,  124. 
Effect  of,  566,  567. 

on  indebtedness  of  enlisted  man,  245-246. 
Enlisted  men;  amenable  to  descipline  until  discharged, 
9%. 

appointed  as  commissioned  officers,  523. 
as  warrant  officers,  523. 

detained  after  expiration  of  enlistment,  555,  556. 

foreign  port,  555,  556. 

furlough  without  pay,  871,  872. 

general  provisions  relating  to,  562-570. 

indebted  to  Government,  500. 

jurisdiction  pending  reenlistment :  subject  to  regu- 
lations, etc.,  1201,  1202. 

mileage  and  transportation  furnished,  874-876, 1415. 

not  troops  of  United  States  after,  1180. 

rated  as  mates,  52;?. 

reenlistment  in  different  branch;  travel  pay  al- 
lowed, 1551, 15.52. 


DISCHARGE— Continued. 

Enlisted  men,  refund  of  bounty,  1292, 1294,  1298. 

reinstatement  in  civil  establishment,  1464,  1476, 

1524,  1530. 
sentenced  to;  additional  to  authorized  strength. 

Navy,  536,  1423,  1463,  1478. 
transferred  to  Fleet  Naval  Reserve,  871. 
transferred  to  Hospital  Corps,  555. 
Expiration  of  enlistment;  three  months  prior  to,  1381, 

1382. 
Female  nurses.  Navy,  1303,  1304. 
Forciini  country;  bad  conduct,  not  to  be  executed  in, 

1000. 
Forging  certificat&s  of,  569, 1473. 
Furlough  in  lieu  of,  1436. 

Honorable;  after  one  year's  service  as  enlisted  man; 
law  repealed,  1419. 
burial  in  national  cemeteries,  1163. 
commanding  officer  to  grant,  573. 
definition  of;  mileage  law,  875. 
effect  of,  870. 

enlisted   men  allowed   home   on  receiving  ship 
pending  reenlistment,  1201,  1202. 
entitled  to,  562. 
form  of,  569. 
graduates  of  Naval  Academy  not  needed  to  fill 

vacancies,  1188, 1189. 
gratuity  on  reenlistment,  883-891,  947. 
officers  may  be  reappointed  in  Navy  after,  1393. 

morally  imfit  for  promotion,  630. 
ordinary  discharge  distinguished;  definitions,  .564, 

886. 
preference  for  appointment  as  warrant  officers,  534. 
in  civil  employment,  338,  339,  780,  1065,  1180, 
1383,  1524,  1526,  1530. 
reinstatement  in  civil  establishment  after  war  with 

Germany,  1530. 
report  of  men  entitled  to,  573. 
testimonial  of  fidelity  and  obedience,  573. 
Illegal;  court-martial  sentence  set  aside  by  Secretary 

oftheNax-y,  1008. 
Inaptitude;  refund  of  enlistment  bounty,  1292,  1294, 

1298. 
Lost;  certificate  in  lieu  of,  1203,  1204. 
Medical  survey;  transportation  home,  875,  1274,  1275. 
Men  sentenced  to,  excluded  from  enlisted  strength, 

536,  1423,  1463,  1478. 
Minors,  on  request  of  parents,  1402,  1403. 
Naval   Reserve   Force;  refund   of   clothing  gratuity, 
1444,  1447. 
released  from  active  duty;  deposits  paid,  877. 
restrictions  on,  Fleet  Naval  Reserve,  1451. 
Ofllcer— 

Accepting  appointment  in  diplomatic  or  consular 

service,  579. 
Dropped  from  rolls  for  absence  without  leave,  1011, 
1012. 
for  unauthorized  absence,  imprisotmient,  etc., 
1503. 
Failing  to  pass  professional  rexamination.  Marine 
Corps,  1463. 
toquaUfy  for  promotion  in  Navy,  729-734, 1189. 
Incurring  deficiencies  in  violation  of  law,  1104, 1105. 
Unfit  for  promotion  by  reason  of  dnmkenness, 
etc.,  623,  6.30,  1189. 
Ordinary;  distinguished  from  honorable,  564,  886. 
Preference  of  soldiers  and  sailors  for  civil  employment, 

338,  339,  780,  1065,  1180,  1383,  1524,  1526,  1530. 
Prior  to  expiration  of  enlistment,  934. 
Prisoners;  not  troops  of  United  States  after,  1180. 
transportation  and  clothing  furnished,  1313. 


1612 


INDEX. 


DISCHARGE}— Continued. 

Purchase;  fiu-lough  in  lieu  of,  14^6. 
Navy  and  Marine  Corps,  1222. 
Refund  of  clothing  outfit,  1292,  1294,  1298,  1402,  1403. 

minor  who  fraudulently  enlisted,  1402,  1403. 
Request;  refund  of  enlistment  bounty  for,  1292,  1294, 

1298. 
Revocation — 

Amenabihty  to  court-martial  after,  975. 
Court-martial  sentence  held  illegal,  568,  1008,  1009- 
Fraud,  568. 

Of  appointment,  acting  chaplains,  1396. 
acting  ensigns,  1435. 
Marine  Corps,  1461,  1462. 
Ship's  company;  vessel  lost;  amenable  to  discipline 

until  discharged,  996. 
Special  order;  furlough  in  lieu  of,  1436. 
Terms  construed  and  distinguished,  97. 
Warrant  officer,  revocation  of  appointment,  524. 
AVhoUy  retired,  synonymous  with,  030. 
Undesirable;  refund  of  enlistment  bounty,  1292,  1294, 

1298. 
War  Risk  compensation,  etc.,  barred  by,  for  cause, 
1496. 
DISCIPLINE: 

See  Articles  for  the  government  of  the  yavy. 
Conduct  to  the  prejudice  of,  1000. 
Enlisted  men  amenable  to  until  discharged,  996. 
Jurisdiction  over  soldiers  during  war,  42. 
Marine  Corps;  regulations  governing,  956. 
Violation  of,  after  loss  of  vessel;  punishment,  Navy, 
996. 
DISCRETION: 

Appointing  power,  95. 

Commanding  officer  of  naval  vessel,  1003. 

President;  reference  of  cases  to  retiring  boards,  Na^^, 

598. 
Public  officer,  not  reviewable,  242,  243. 
Secretary  of  the  Navy,  344,  345. 

allowance  of  actual  expenses  for  repeated  travel, 
1272,  1273,  1274,  1278. 
of  pay  to  employees,  insular  possessions,  in 
transit,  1278. 
not  reviewable,  237,  828,  829. 
DISCRIMINATION: 

Against  uniform  of  Navy,  Marine  Corps,  etc.,  1360. 
DISEASE: 

See  Line  of  duty. 

Absence  from  duty  caused  by;  due  to  misconduct,  825, 

1436. 
Communicable;  cooperation  of  Navy  Medical  Depart- 
ment to  suppress,  1520. 
Compensation  for,  naval  personnel,  1498-1501. 
Contagious;  civil  employees  granted  leave  because  of, 

1221. 
Detention,  isolation,  quarantine,  or  commitment  to 

institutions  for  prevention  of,  1517. 
Injury  defined  to  include,  1496. 
Medical  injections  to  prevent;  naval  personnel  must 
submit  to,  458. 
officers  to  consult  in  difficult  cases,  466. 
treatment;  naval  personnel  required  to  submit  to, 
458. 
Protection  of  naval  forces  against,  1517. 
Records  to  be  kept  of  treatment  and  character  of,  466. 
DISMISSAL: 

See  Discharge;  Dropped;  Wholly  retired. 
Accepting  appointment  in  diplomatic  or  consular  ser- 
vice, 579. 
Acquiescence  in;  effect  of,  826,  989. 
Acting  master's  mate  not  a  warrant  officer,  1045. 


DIS>USSAI^— Continued. 

Additional  number  officer;  vacancy  not  filled,  1275^ 

1270. 
Cashiered  distinguished,  1032. 
Chief  of  bureau;  sentence  of  court-martial,  8:J9. 
Civil  establishment;  inefficiency,  etc.,  1383,  1388. 
instructor.  Naval  Academy,  1287. 
service  law;  persons  violating,  13S5,  1384. 
Commissioned  officer;  sentence  must  be  confirmed  by 

President,  1036. 
Compensation  and   benefits    under   War    Risk  act, 

barred  by,  1496. 
Confirmation  by  President;  form  of  action,  1010-1042. 

warrant  officer  reduced  to  enlisted  rating,  524. 
Congress;  power  of,  to  remove  officer,  635. 
Contributions  for  presents  to  superiors  ground  for, 

1073. 
Court-martial  jurisdiction  after,  63,  .567,  974,  991,  lOtiO. 
Disbursing  officers  making  unauthorized  exchange  of 

funds,  1100. 
Discharged,  dismissed,  and  wholly  retired;  terms  ex- 
plained, 97. 
Effect  of;  midshipman  dismissed  for  hazing,  1281. 
Illegal;  revocation  of,  1011. 
Indirect,  by  appointment  of  successor,  1011. 
Injunction  to  prevent,  99. 

Irregularities  of  board  by  which  officer  mustered  out ,  69. 
Mandator^'  in  certain  cases,  994,  1029,  1031,  1064. 

naval  officer  failing  to  report  offenses  by  midshii)- 
men,  1287. 
Member  of  court-martial  absent  without  authority, 

1031. 
Midshipmen,  752,  755-760. 

court-martial  sentence,  confirmation  of  I'rcsident 

required,  1248. 
effect  of,  761, 1178. 
eligibiUty  for  reappointment,  582. 
hazing,  1178,  12S1,  1286. 
procedure  to  be  followed,  1286. 
reinstatement,  1178. 

single  act  of  hazing;  court-martial  required,  12S6. 
without  court-martial,  exception,  1286. 
Mitigation  of  court-martial  sentence,  1053. 
Naval  officer — 

Dropped  from  roUs  for  unauthorized  absence,  etc., 

1503. 
Ineligible  for  reappointment,  582. 
Pay  on  restoration,  1178. 
Restrictions  on,  441,  1010-1014. 
Under  arrest  must  confine  himself,  under  penalty 

of,  1029. 
Unfit  for  promotion  by  reason  of  dnuikenness,  etc.; 
pay,  623, 1189. 
Niu-se  Corps,  female,  1303, 1304. 
Officer- 
Accepting  presents  from  inferiors,  1073. 
Appointed  for  fixed  term;  power  of  President,  365. 
Dropped  for  absence  without  leave,  or  confinement 

by  civil  authorities,  1010, 1012. 
Failing  to  qualify  for  promotion,  discharged,  72^ 

734. 
Influencing  legislation  or  attempting  to  do  so,  1527. 
May  demand  trial  after,  1012-1014. 
Withholding  public  moneys  punishable  by,  1096. 
Pharmacists  removable  in  the  discretion  of  the  Secre- 
tary of  the  Na\T,  1262. 
President's  power — 

Decisions  relating  to,  97-99. 
Restrictions  on,  441,  1010-1014. 
With  consent  of  Senate,  98. 


1613 


INDEX. 


DISMISSAL-Continued. 
Reappointment  of  ofBcers — 
And  midshipmen,  582, 1178. 
Dropped  from  rolls  for  unauthorized  absence,  etc., 
1503. 
Reconsideration  of  reviewing  authority's  action  ap- 
proving sentence,  103-8,  1039. 
Reduction  of  ofllcer  to  enUsted  rating;  sentence  con- 
firmed by  President,  1045. 
Resignation  to  escape;  naval  officer  ineligible  for  reap- 
pointment, 582. 
Restoration  of  officer,  94,  582, 1012,  1178. 
Revocation  of  appointment  as  mate,  522. 
of  recess  commission,  100. 
of  dismissal,  unauthorized,  761. 
Sentence  must  be  confirmed  by  President,  1036. 
Superintendent  of  Naval  Academy,  for  neglecting  in- 
structions to  midshipmen,  1195. 
Veto  of  bill  altering  records,  35. 

restoring  officer,  34. 
Void  in  certain  cases,  1012-1011. 
Warrant  officer;  revocation  of  appointment,  524. 

sentence  must  be  confirmed  by  President,  1036. 
War  Risk  compensation  barred  by,  1500. 
DISOBEDIENCE: 

Accounting  officers  can  not  relieve  officers  from  respon- 

sibiUty  for,  239,  240. 
Medical  treatment;  refusal  to  submit  to,  458. 
Nature  of  the  offense,  980, 981. 
Punishment  for.  Navy,  979. 

negligence  in  obeying  orders,  Navy,  984. 
Refusal  of  officer  to  submit  to  surgical  operation,  615, 

616. 
Repeated  offense,  1003. 

Violating  or  refusing  obedience  to  general  order  issued 
by  Secretary  of  the  Navy,  985. 
DISRATING: 

Incompetency;  siumnary  court-martial's  power,  1007. 
DISRESPECT: 

Punishment  for,  Navy,  984. 
DISTINGUISHED  CONDUCT: 

Advancement  of  naval  officers  for,  453,  454. 
Conflict  with  the  enemy,  thanks  of  Congress  for,  736. 
Enlisted  men  in  battle,  1275. 
Marine  officers  advanced  for,  921. 
Medals  for,  512,  1275,  1402,  1521-1523. 
DISTRESS: 

Naval  vessels  assisting   distressed   navigators,  775. 
estimates  and  appropriations  for,  1103. 
DISTRICT  ATTORNEYS: 

Attorney  General  to  supervise  and  direct,  323. 
('ompensation  for  examining  titles,  294. 
Duties;  prize  cases,  1139. 

titles  to  public  property,  283. 
Removal  by  President,  365. 

Services  performed  for  executive  departments,  222. 
Special  counsel  employed  to  assist,  324,  325. 
DISTRICT  OF  COLUMBI.l: 
See  Seat  of  Government. 
Advertising  in,  1123,  1187. 
Buildings — 

Executive  departments  may  rent  others  instead  of 

ones  occupied,  1187. 
Owned  by  Government;  reports  to  Congress  con- 
cerning, 1553. 
Rented;  reports  concerning,  1218,  1391,  1543. 
specific  appropriation  required,  1181,  1182. 
Courts  of;  Federal  employees  witnesses  before,  416. 
requiring  assistant  head  of  department  to  give 
testimony,  422. 


DISTRICT  OF  COLUMBIA-Continued. 

Deeds  to  land  in,  acknowledgments  in  Guam,  Samoa, 

and  Canal  Zone,  1291,  1292. 
Departmental  books  transferred  to  public  library  of, 

1280. 
Employees  of,  not  officers  of  the  United  States,  415. 
Fuel— 

For  departments  in;  purchase  and  storage,  1507. 

advance  deliveries  of,  1553. 
For  naval  establishment  in,  15C0. 
Yards  in;  trucks  to  be  used  for  other  hauling  for 
Government,  1553. 
Laws  of,  applicable  to  public  buildings,  332. 
Office  space  in,  controlled  by  Public  Building  Com- 
mission, 1524, 1525. 
Register   of  wills   to   prepare   guardianship   papers 

without  charge,  1217. 
Subsistence  of  officers  and  employees  traveling  outside 
of,  1394,  1398. 
DIVINE  SERVICES: 

Chaplains  to  conduct  on  Sunday,  979. 
DIVISION  OFFICERS: 

Ensigns:  duty  as,  704. 
DIVISIONS: 

Commanding  officer  of  may  convene  general  court- 
martial,  1442. 
DOCKAGE: 

Estimates  and  appropriations  for,  Navy,  110!. 
DOCKS: 

Transfer  of  floating  dry  dock  from  one  na\y  yard  to 
another,  779. 
DOCTORS: 

See  Medical  Corps. 
DOCUMENTARY  EVIDENCE: 

Affidavits  not  admissible  before  court  of  inquiry,  1050. 
Copies  of  consular  records,  429. 
of  court-martial  records,  1036. 
of  departmental  records,  424, 426,  427, 428, 1009, 1010, 
1023. 
Court  of  inquiry— 

Admissibility  of  papers  before,  1056. 
Proceedings  admissible  before  court-martial,  131, 
1056, 1057. 
Embezzlement  cases,  428, 1330,  1331. 
Extracts  from  journals  of  Congress,  428. 
Handwriting,  1389. 
Papers  illegally  seized;  whether  admissible  against 

accused,  1023,  1024. 
Transcript  of  Treasury  Department  records,  420,  427. 
Witness  refusing  to  produce  before  naval  court:  punish- 
ment, 1310. 
DOCUMENTS: 

See  Printing  and  binding. 
DOIVUCILE: 

Candidates  for  appointment  as  midshipmen,  750,  751. 
DOMINICAN  REPUBLIC: 

Detail  of  naval  personnel  to  assist;  appointment  to 
office  under,  1502. 
DONATIONS: 
See  Gifts. 

Civil  service  retirement  and  disability  fund  may  re- 
ceive, 1540,  1541. 
DOUBLE  JEOPARDY: 

See  Jeopardy. 
DOUBLE  SALARIES: 

Naval  officers  holding  offices  under  South  American 

Republics,  1556. 
Restriction  on,  208, 1066-1071,  1177,  1411. 
DRAFT: 

Disbursing  officers  to  present  promptly  for  payment, 
1100. 


1614 


INDEX. 


DRAFT— Continued . 

Liability  of  officers,  merchant  vessels,  to  service  in 

time  of  war,  1249. 
Power  of  Congress  to  compel  mUitary  service,  47. 
DRAFTSMEN: 

Employment  from  naval  appropriations  restricted, 
1281. 
DRAWING: 

Estimates  and  appropriations  for.  Navy,  1103. 
Professor  of,  Naval  Academy,  771. 
DROPPED: 

Officers  absent  without  leave  or  in  confinement  by 
civil  authorities,  1010,  1012,  1503. 
failing  to  qualify  for  promotion,  729-734. 
DRUGS: 

Absence  from  duty  caused  by,  825, 1436. 
DRUNKENNESS: 

Absence  from  duty,  naval  personnel,  caused  by,  825, 

1436. 
Naval  officer  unfit  for  promotion  by  reason  of;  dis- 
charge; pay,  1189. 
Punishable  by  naval  court-martial,  984. 
DRY  DOCKS: 

Transfer  of  floating,  from  one  navy  yard  to  another,779. 
DUELS: 

Sending  or  accepting  challenge  to  fight,  in  Navy,  984. 
DUE  PROCESS  OF  LAW: 
Decisions  relating  to,  123-126. 
Excessive  bail,  excessive  fines,  and  cruel  and  unusual 

punishments,  125. 
Fair  and  impartial  trial,  125, 126. 
Review  of  proceedings  of  trial  court,  125. 
Self-crimination,  ^25. 
DUTY: 

Absence  from,  without  leave,  or  after  expiration  of 

leave,  985. 
Coal  imported  for  Navy  subject  to,  140S. 
Culpable  ineflBciency  in  performance  of;  j)unishment, 

Navy,  984. 
Extra- 
Imposed  by  commanding  officer  as  pimishment, 

1002. 
Police;  summary  court-martial  may  adjudge,  1007. 
Foreign  war  material  for  Navy  imported  free  of,  1396. 
Importing  in  naval  vessel  goods  subject  to,  989. 
Questions  of,  are  military  questions,  932. 
Suspension  from,  by  commanding  officer,  as  punish- 
ment, 1002. 
Without  troops;  definition  of,  702. 
DYING  DECLARATIONS: 

Admissibility  as  e\'idence,  132. 
EDUCATIONAL  INSTITUTIONS: 
Enlisted  men  detailed  to,  441. 

Naval  officers  detaUed  to,  435-441,  701, 1184, 1185, 1247, 
1248. 
EFFECTS: 

Deceased  naval  personnel;  disposition  of,  786,  995, 

1395,  1503. 
Lost  in  naval  service — 

Decisions  relating  to,  269-274. 

Jurisdiction  of  accounting  officers  and  Secretary 

of  the  Navy,  272. 
Reimbursement,  271,  1492-1494. 
Lost  on  vessels,  269. 

permanent  appropriation  for  reimbursement,  1106. 
Transportation  of,  naval  personnel,  1535,  1536. 
EFFICIENCY: 

Bureau  of;  assistance  to  be  furnished  to,  1469, 1470. 
Experts;  restrictions  on  employment  of,  1394. 


EFFICIENCY— Continued. 

Improvements  suggested  by  civil  employees;  cash  re- 
wards, 1514. 
Ratings,  civil  establishment,  1383. 
EIGHT-HOUR  LAW: 

Contract  provisions  relating  to,  1370, 1371. 

Government  work,  1219, 1220. 

Laborers,  workmen,  and  mechanics  employed  by  or 

for  United  States,  1117. 
Suspension  of,  in  national  emergency,  1474. 
ELECTIONS: 

Army  and  Navy  officers  not  to  interfere  with,  1079. 
Force  at  navy  yard  not  to  be  increased  Ijefore,  1180. 
Naval  personnel's  right  to  vote  not  restricted   by 

criminal  code,  1321. 
Offenses  by  naval  officers  in  connection  with,  1321. 
ELLIGIBILITY: 

See  A  ppointmentfi . 
EMBARGO: 

Shipments  for  United  States  not  to  be  delayed  by,  in 
time  of  peace,  1198. 
EMBEZZLEMENT : 

Decisions  relating  to,  993,  997,  998. 

Definition  of,  1329-1331. 

Disbursing   officers   and   others;  general   provisions, 

1329-1331. 
Evidence;  records,  etc.,  1330,  1331. 

transcript  from  Treasmy  records,  428. 
Indictment  for,  1330. 
Loans  by  officers  of  Supply  Corps,  497. 
Mail  matter  by  postal  employee,  1338, 1339. 
Money — 

Or  property  intended  for  naval  service,  990,  1325. 

on  prize;  punishment,  Navy,  994. 
PubUc  or  private,  by  public  officer,  1331. 
Naval  personnel;  pubUc  or  private  money  or  properly; 

insurrection,  1170. 
Postal  funds  by  postal  employees,  1344. 
Post-office  property,  1337. 

Property,  public  or  private,  by  public  officer,  1331. 
Public  money  or  property,  1328. 
EMERGENCY: 

Appropriations  may  be  exceeded  in  case  of,  1105. 
Authorized  enlisted  strength  increased  during,  1463, 

1528. 
Coast  and  Geodetic  Survey  transferred  to  Navy  dur- 
ing, 1479,  1480. 
Commandeering  of  vessels  for  naval  purposes,  1467. 
Contracts  made  without  advertising  for  proposals, 

1109. 
Courts-martial,  naval;  how  constituted  during,  1494. 
Furlougbed  enlisted  men  subject  to  recall  during,  1436. 
Lighthouse  Service  transferred  to  jurisdiction  of  Navy 

during,  1456,  1457. 
Naval  Reserve  Force;  active  service  during,  1443, 1447, 
1452. 
precedence  during,  1511. 
promotion  during,  1510. 
Procurement   of  vessels   during,   by   contract   with 

owners,  1453. 
Retired  enlisted  men,  active  duty  during,  1451. 

officers,  active  duty,  pay  and  allowances,  1512, 
1513. 
Suspension  of  eight-hour  law  during,  1474. 
Voluntary  services  may  be  accepted  in  case  of,  1104. 
EMERGENCY  FLEET  CORPORATION: 

Restrictions  on  payment  of  lump-sum  employees,  1491, 

1492. 
Transfer  of  employees  to  and  from  departments,  1491. 


1615 


INDEX. 


ESniVENT: 

Coiuiuct  ill  battle,  734-736,  933. 

Domain;  condemnalioii  proceedings  to  obtain  laud 
for  buildings,  etc.,  1199, 
EIVIOLUIVIENTS: 

Deniiition,  827, 828, 892. 
EMPLOY: 

Definition,  206, 1250. 
E.\IPLOYEES: 

See  Civil  establishment. 

Compensation  act,  1467-1469. 

Nurse  Corps  (female)  not  entitled  to  benefits  of. 
1500. 
Held  to  be  officers,  413. 
E>IPLOYIVIENT: 
Definition,  1250. 
EXE^FY: 

See  Battle;  War. 

Confiscation  of  property,  40. 

Connict  with;  highly  distinguished  conduct;  thanks 

of  Congress  for,  736. 
Defined.  892. 

Delivering  messages  from,  981. 
Flags  of;  collected  by  Secretary  of  Navy,  381,  790. 
Inhabitants  in  country  of,  40. 
Intercourse  with;  punishment  for  unauthorized,  979. 
Seizure  of  vessels  belonging  to,  1477. 
YiekUng  or  striking  flag  to;  punishment,  Navy,  980 
EXGINEER  IN  CHIEF: 
Appointment,  379. 

Title:  chief  of  Bureau  of  Engineering,  670  671 
ENGINEERING: 

SeeBureaiis;  Chiefs  of  bureaus. 
Bureau  of;  name  changed  from  Steam  Engineering 
1548.  ^' 

ENGINEERS: 

Acting  ensigns;  appointment  and  promotion,  1435 
1436. 

Additional  numbers  in  grade- 
After  promotion  by  selection,  1432. 
Retirement  of,  1366. 

Appointment  as  chief  of  bureau,  379. 

Board  to  report  upon  repairs  to  vessels,  776. 

upon  use  of  patented  articles  by  naval  vessels,  776. 

Cadet  engineers,  768-770. 

Commissioned  in  the  Navy  for  engineering  duty  only, 

l<Jt70. 

Corps  of— 

Civil  engineer  corps  not  included,  532. 

Command;  relative  rank  did  not  confer,  702. 

General  provisions  relating  to,  498-501. 

Rank  of  officers  in,  677. 

Transfer  to  the  line,  1263-1264. 
Detail  of  Une  officers  for  engineering  duty;  status- 
promotion;  command,  etc.,  1435. 

to  duty  in  Alaska,  1393. 
Duties,  1401. 

Eligibility  for  selection,  1432. 
Fleet;  appointment  of ,  499. 

pay,  792,  801. 
Graduated  from  Naval  Academy,  689. 
Naval  Reserve  Force,  1443. 
Promotion,  1436. 

Sea  service  not  required  for  promotion  by  selection, 
1434.  ' 

Selection  boards  to  consist  of  officers  not  restricted  to 
shore  duty  only,  1430. 

for  promotion;  form  of  board's  report  concemine 
1433.  ^' 

ENGINEMAN: 

Ratings  established  in  Navy,  1494. 


ENGINES: 

Estimates  and  appropriations  for  fire  engines.  Navy, 

Marine;  use  of  patented  articles  connected  with  776 
Steam;  estimates  and  appropriations  for  repai'rs  and 
attendance,  navy  yards,  1103. 

ENGLISH: 

Professor  of.  Naval  Academy,  771. 

E.XGRAVINGS: 

Hydrographic  Office;  separate  estimates  required  1197 

Plates  of  Wilkes's  Expedition,  380. 

Restrictions  on,  in  departmental  pubUcations.  1284 
ENLISTED  MEN: 

See  Allowances;  Authorized  enlisted  strmgth-  Death- 
Descriptive  li.st;  Details;  Disability;  Discharge;  Effects- 
EiUistmenis;  Pay  of  Naval  Establishment;  Ratings'- 
Rations;  Retired  enlisted  men. 

Absence  from  duty  due  to  misconduct;  making  good 
the  time  lost  by,  1436. 

Acceptance  of  foreign  presents,  76. 

Acting  warrant  officers;  discharge  and  reenlistment, 
525. 

Advertising  for  recruits,  1382, 1515. 
Ages,  540. 

Allotments  of  pay,  892,  1497,  1498. 

Amusement,  comfort,  etc.;  expenditures  from  shins' 

stores  profits,  1359. 
Applicants  are  not,  1180. 
Appointment — 

As  machinists  in  Na^-y,  1268, 1269. 
National  Guard  officers,  1412. 
warrant  officers;  preference  to,  534. 

or  commissioned  officers;  discharge,  523. 
To  specified  ratings,  1495. 
Apprentices- 
Additional  to  authorized  enlisted  strength    536 
1248,  1249,  1478.  ' 

At  na\-y  yards,  are  not,  538. 
Number  of,  534. 

Army  service  credited  to,  for  retirement,  1291,  1299 
Arrest — 

By  civil  authorities;  pay  during,  950. 
Marines  exempted  from,  935. 
Artificial  Umbs  aUowed,  1156,  1157, 1181,  1217. 
Assignment  of  wages  by,  892,  1497,  1498. 
Assumed  names;  discharges  issued  in  true  names 
1379,  1380.  ' 

Bonds  required,  476. 
Captured  by  enemy;  pay  of,  891. 
Citizenship;  to  be  entered  in  ship's  books,  995. 

United  States;  additional  pay  for  length  of  service 
862,  867,  868.  ' 

Civil  employment- 
Preference  after  discharge,  338,  339,  780,  1065  1180 

1383,1524,1526,1530. 
Reinstatement  in  civil  positions  after  discharge 

1464,  1476,  1524,  1530. 
Restricted;  competition  with  civilians,  352   1304 
1411,  1412,  1463,  1464. 
in  Territories,  1075. 
Clothing  bounty  furnished  to,  1203,  1403. 

refunded  on  discharge,  1292,  1294,  1298,  1402   1403 
Coast  Guard  serving  with  Navy  are  enUsted  men  of 

the  Navy,  539. 
Commandant's  clerk  is  not,  534. 
Competition  with  civilians,  1411,  1412. 
law  construed,  352. 
Navy  bands,  1304. 
Continuous  service,  pay,  883-891. 
De  facto,  548. 

discharge  of,  62,  567. 


1616 


INDEX. 


ENLISTED  MEN— Continued. 
Definition  of,  526. 
Deposit  of  sa\-ings;  Marine  Corps,  951, 1295. 

Navy,  877,  1202. 
Descriptive  list,  995. 
Detail  to  Dominican  Republic,  1502. 
to  educational  institutions,  441. 
to  Haiti,  1416. 
to  nautical  school,  Philippines;  preference  to  those 

havmg  20  years'  service,  1297,  1298. 
to  Navy  Department,  337. 
Detention  after  expiration  of  enlistment,  542,   543, 
555-562. 
pay,  873,  874,  883. 

under  sentence  of  court-martial,  558,  1064. 
Discharge;  furlough  in  lieu  of,  871,  872. 

home  on  receiving  ship  pending  reenlistment, 

1201,  1202. 
jurisdiction  pending  reenlistment;  subject  to  regu- 
lations, etc.,  1201,  1202. 
not  troops  of  United  States  after,  1180. 
on  medical  survey;  transportation,  1274,  1275. 
preference  for  civil  employment,  338,  339,  780, 1065, 

1180,  13S3,  1524,  1526,  1530. 
prior  to  expiration  of  enUstment,  934,  935. 
purchase  of,  1222. 

reenlistment  in  diflerent  branch;  travel  pay  al- 
lowed, 1551, 1552. 
refund  of  enhstment  bounty,  1292,  1294,  1298,  1402, 

1403. 
revoked;  status,  568,  975,  1008,  1009. 
wearing  of  uniform  after,  1414,  1415, 1524,  1552. 
witliheld;  amenability  to  court-martial,  975. 
Emploj'ment;  in  excess  of  appropriations,  restricted, 
J1104. 
when  ships  are  docked  or  laid  up  for  repairs,  1383. 
EnUstments   expired;  subject   to   Navy   laws   until 

discharged,  555,  556. 
Extra  duty.  Marine  Corps,  restrictions  on,  1315. 
Faithful  and  obedient;  preference  in  granting  leave  of 

absence,  574. 
Families;  payment  of  death  gratuity  to,  1546,  1547. 
transportation  furnished  on  permanent  change  of 
station,  1535,  1536. 
Fidelity  and  obedience,  testimonial  of,  573. 
Flying    Corps;  additional    to    authorized    strength. 

Navy,  1478. 
Furloughed;  additional  to  authorized  strength,  Navy, 
1478. 
burial  expenses,  906. 
hospital  treatment,  903. 
in  lieu  of  discharge  by  purchase  or  special  order, 

1436. 
not  troops  of  United  States,  1180. 
pay,  871,  872. 

on  recall  to  active  duty,  890,  891. 
status,  537. 
Guimery  sergeants;  rank  and  allowance  of,  1271. 
Homesteads;  general  provisions  relating  to,  1083-1087. 
Honorable  discharge  gratuity,  883-891. 
Hospital  Corps,  additional  to  authorized  strength,  1478. 
Incompetency;   simimary  court-martial  may  disrate 

for,  1007. 
Indebted  to  Government;  discharge  not  delayed  for, 

560. 
Insane;  Saint  Elizabeths  Hospital  in  the  District  of 

Columbia,  1161-1163. 
Insular  force,  pay,  863,  864. 

status,  538. 
Marine  Corps;  distribution  in  grades,  919,  920,  921, 
1463, 1548. 


ENLISTED  MEN— Continued. 

Marine  Corps;  may  be  substituted  for  landsmen,  955. 
service  on  vessels,  954. 

special  qualifications,  details,  etc.,  pay,  947,  948. 
Mates  rated  from,  515. 
Medals  of  honor  and  gratuities  awarded  to,  512,  1275, 

1521-1523. 
Medical  attendance,  902-904. 
Mess  attendants  and  cooks,  pay  of,  864 
Midshipmen  appointed  from,  743, 1472, 1473, 1502. 
Minors;  discharged  on  request  of  parents,  1402, 1403. 

held  to  be,  530,  545. 
Naturalization,  1505-1507. 
Naval  militia  in  active  service,  arc  enlisted  men  of  the 

Navy,  539. 
Navy;  marines  may  be  substituted  for  landsmen,  9.')5. 
Oath  taken  by,  935,  1271. 
"OfTicer"  may  include,  76. 
Officer  reduced  to  rating  of,  by  court-martial  sentence, 

988. 
Petty  officers;  mates  held  to  be,  518. 
Promoted  to  warrant  officer,  512. 

when  pay  commences,  830. 
Punishments  inflicted  upon  by  commanding  officer, 

1002. 
Purchase  of  discharge  by,  1222. 
Qualifications  for  certain  ratings  to  be  prescribed  by 

regulations,  1495. 
Rated  as  mates;  discharge,  523. 
Reduction  of  officer  to  rating  of,  988. 
Reenlistment;  home  on  receiving  ship  pending;  sub- 
ject to  regulations,  1201,  1202. 
Retirement,  Navy  and  Marine  Corps;  computation 
of  service;  pay  and  allowances,  967,  1269,  1270,  1299. 
Servants;  restrictions  on  use  as,  829. 
Service  credited  to  naval  officers,  1191. 

in  Naval  Reserve  Force  credited  to,  1529, 1530. 
Shipkeepers;  detailed  for   duty   as,   in   Phihppines, 

1297,  1298. 
Special  duty;  additional  pay  for,  865-867. 
Trade  schools,  additional  to  authorized  strength,  1478. 
Transfer — 

From  military  service  to  Navy  or  Marine  Corps, 
555. 
Naval  Reserve  Force  or  Marine  Corps  Reserve, 
1529,  1530. 
To  and  from  Hospital  Corps,  555,  567, 1420. 
Fleet  Naval  Reserve,  1449. 
Naval  Reserve  Flying  Corps,  1454. 
Transporation  home,  on  expiration  of    enlistment, 
555,  550. 
on  discharge;  medical  survey  and  expiration  of 
enUstment,  555,  556, 1274, 1275. 
Vessel  lost  or  wrecked;  status  of;  amenable  to  dis- 
cipline until  discharged,  996. 
missing;  settlement  of  accounts,  268. 
sunk  or  destroyed;  pajTnent  of  arrears  due,  264. 
Voting  in  territories;  restrictions  on,  1075. 
Warrant  officers  are  not,  525. 
Widows  and  orphans  of,  preferred  for  retention  in  civil 

establishment,  1180. 
Witnesses  in  court,  414. 

Wives  of,  eUgible  for  Government  employment,  1520. 
Women  enUsted  in  naval  service,  1531. 

included  by  War  Risk  act,  1496. 
Wrecked  or  lost  vessel,  separated  from,  pay,  891. 
ENLISTMENT: 

See  Fraudulent  enlistment. 
Ages,  540. 
Aliens,  554. 


1617 


INDEX. 


ENLISTMENT— Continued. 
Allowance,  Marine  Corps,  942. 
Applicants  for,  not  troops  of  United  States,  1180. 
Bounty,  Marine  Corps,  942. 
Clothing  outfit,  876,  877, 1203. 

on  second  enlistment,  1403. 

refund  of  on  discharge,  1292,  1294, 1298. 

value  charged  to  minor  who  fraudulently  enlisted, 
1402,  1403. 
Date- 
To  be  entered  in  ship's  books,  995. 

When  complete,  546,  790. 
De  facto,  548. 
Deserters,  551. 
Detention  after  expiration  of,  542,  543,  555-562,  1064. 

pay,  873,  874,  883. 
Discharge  prior  to  expiration  of,  934. 
Errors  in,  548. 
Expiration — 

Court-martial  prisoners,  558. 

Date  of,  561. 

Detention  in  ser%ice,  542,  543,  555-562, 1064. 

Effect  on  court-martial  jurisdiction,  62,  64. 

Transportation  furnished,  1274, 1275. 
Extension,  544,  561, 13S1. 

by  Congress,  543,  544. 

detention  operates  as,  561. 

honorable    discharge    gratuity    and    continuous 
service  pay,  8S3-891 . 

Marine  Corps,  544. 

minority.  Navy  and  Marine  Corps,  1476. 

pay.  Navy,  872. 
Form  of,  555,  556. 
Fraudulent,  996, 1000. 

court-martial  jurisdiction,  976,  977. 

pay,  874. 

punishment,  1222. 
Indebtedness;  effect  of  reenlistment,  245,  246. 
Insane  persons,  551. 
Intoxicated  persons,  551. 
Marine  Corps — 

Navy  law  governs,  545. 

Term  of,  934. 
Minoritj',  540. 

certificate  required  as  to  age,  545. 

consent  of  parents  or  guardians,  544,  545,548-551. 

credited  as  four  years'  ser\ice,  1449. 

discharged  on  request  of  parents,  1402, 1403. 

extension  of,  1476. 

guardians  appointed;  papers  prepared  by  register 
ofwills,  D.  C,  1217. 

honorable   discharge;    appointment    as    warrant 
officers,  534. 

Marine  Corps,  545. 

policy  of  Congress,  545. 

underf ourteen  years,  prohibited,  551. 
Place  of,  875. 

to  be  entered  in  ship's  books,  995. 

transportation  of  discharged  enlisted  men  to,  1274, 
1275. 
Prohibited  classes.  551. 

penalty  for  officers  enlisting,  994. 
Reenlistment  construed,  935. 
Reservists  reenlisting  in  regular  Navy,  1450. 
Shipping  articles;  what  to  contain,  556. 
Term  of,  540,  1552. 

Congress  may  extend,  543. 

constructive  service  credited,  1449. 

discharge  three  months  prior  to  expiration,  1381, 
1382. 

extension,  544,  561,  1381,  1476. 


ENLI STMENT- Continued. 

Term  of;  making  good  the  time  lost  by  absence  due  to 
misconduct,  1436. 
making  good  unauthorized  absence,  987,  988. 
marines  transferred  to  Ilospital  Corps,  555. 
men  reenlisting  abroad,  556. 

transferred  to  Navy  or  Marine  Corp.s  frciu 
Army,  555. 
Naval  Flying  Corps;  regulations  governins:,  H4l. 
period  of  detention  abroad,  561. 
under  personnel  act,  1269. 
Void,  552,  976. 
Voidable,  550,  551,  977. 
ENROLLMENT: 

Term  of.  Naval  Reserve  Force,  1444. 
ENSIGNS: 

Appointment  from  commissioned  warrant  officers, 1314. 
from  midshipmen    on  graduation,  765-768,  1188, 

189, 1392, 
from  warrant  officers,  1277, 1280,  1281, 1282. 
Commissioned  warrant  officers  to  rank  with,  but  after, 

1267,  1314. 
Grade  of  midshipman  changed  to,  448. 
Junior  grade  abolished,  1193. 

midshipmen  designated  as,  1190. 
promotion  to;  regulations  governing,  1190,  1191. 
National;  pennant  of  Naval  Reserve  Force  not  to  be 

flown  in  lieu  of,  1448. 
Pay,  792,  799,  1301. 
Promotion  to  lieutenant  (junior  grade),  1264. 

length  of  service  requirement  suspended,  1551. 
Proportion  of  in  line,  1425. 
Rank  with  second  lieutenants,  662, 
Steerage  officers,  704. 

Transfer  to  Construction  Corps,  1408, 1428.    - 
Watch  and  division  officers;  duty  as,  704. 
ENVELOPES: 

SeePenaliy  envelopes. 

Contracts  for;  Postmaster  General  to  make,  1239,  1240, 

1291. 
Embossing  must  be  done  at   Government   Printing 

Office,  378. 
Penalty — 

Authority  to  use;  endorsements  on;  registered  mail, 

1185,  11S6,  1291. 
Fraudulent  use  of,  1345. 
Official  business,  free  of  postage,  1181. 
Self -addressed,  inclosed  in  letters  to  Congress  by 
departments,  1191. 
Printing  and  binding  law  not  applicable  to,  1239,  1296. 
EPHEMERIS  AND  NAUTICAL  ALMANAC: 
See  Nautical  Almanac. 
Exchange  of  data  with  foreign  offices;  use  of  employees, 

etc.,  1382,  13.'^3. 
Printing  and  binding,  number  of  copies,  1234, 1278. 
Sale  of,  1278. 

disposal  of  proceeds,  1234,  i;35. 
EPIDEMICS: 

Medical  injections  to  prevent  spread;  naval  personnel 
must  submit  to,  458. 
EQUIP3IENT: 

See  Vessels  of  the  Navy. 

Of  vessels;  appropriation  available  to  care  for  gifts  to 

naval  vessels,  1305, 
Outfits;  naval  vessels,  chargeable  to  "Increase  of  the 

Navy,  construction  and  macliiiiery, "  1408, 
Unlawfully  seUing,  stealing,  etc.,  990, 
EQUITABLE  CLAIMS: 

Accounting  officers' jurisdiction,  235. 
Accounts,  enUsted  men  on  missing  vessels;  settlement 
of,  268. 


1618 


INDEX. 


EQUITY: 

See  Injunction. 
ERRORS: 

See  Examinations. 

Commission  of  oflBcer;  effect,  103,  675,  685. 

jurisdiction  of  courts  to  correct,  834,  835. 
Court-martial  proceedings;  irregularities  and  fatal  de- 
fects distinguished,  1045-1047. 
Enlistments,  548. 

Examining  board;  courts  have  no  jurisdiction  to  cor- 
rect, 728. 
fataUy  defective,  616,  723,  728. 
President's  action  on  retiring  board,  9C8,  9C9. 
Procedure  of  courts;  due  process  of  law  requirement, 
125. 
eourts-martial;  jurisdiction  of  civil  courts,  401,  402, 
Retirement,  601,  602,  911,  912. 
correction  of,  641,  642. 
iUegal,  587,  621. 
Statute  invalidated  by,  287. 
ESCAPE: 

Naval  prisoners;  punislmient  of  master  at  arms  per- 
mitting, 985. 
Prisoners;  military  guard  charged  with  manslaughter, 
403. 
ESPIONAGE: 

Obtaining  information,  secret  books,  etc.,  concerning 

national  defense,  1482-1485. 
Text  of  act,  1482-1490. 
ESSENTIAL: 

Definition  of,  557. 
ESTIMATES: 

Additional;  1290,  1469. 

Annual;    explanation  of  variations  and  new  items, 

1102. 
Book  of  estimates  to  be  prepared  by  Secretary  of  the 

Treasury,  1103. 
Claims;  statutory  authority  required  for  submission  of, 

235. 
Collision  claims,  naval  vessels;  submission  to  Congress, 

1358,  1359. 
Deficiencies;  necessity  for  to  be  reported  to  Congress, 

1104,  1105. 
Demands  on  balances  of  appropriations;  Secretary  of 

the  Navy  to  submit,  381. 
Explanation  of,  1102,  1179. 
additional  estimates,  1290. 
general  or  lump-sum  appropriation ,  1385,  1386. 
transfer  of  salaries  between  bureaus,  1290. 
Explanatory  notes;  restrictions  on,  1386. 
Fiscal  year  defined,  257. 

Form  of,  1101, 1102, 1290, 1315, 138.5, 1391,  1392, 1469. 
General  provisions  relating  to,  385-387,  1101-1103. 
Hydrographic  Office,  printing  and  engraving,  1197. 
Limited  to  needs  of  year  for  which  made,  387. 
Lump-sum — 

Appropriations,  employees  to  be  paid  from;  spe- 
cific authority  required,  1307. 
information  accompanying,  1417. 
notes  in  book  of  estimates,  13S5,  1380. 
Employees,  navy  yards  and  stations,  1312,  1313. 
Manner  of  submitting  to  Congress,  1103,  1193,  U94. 
Naval  appropriations,  to  be  used  for  civil  establish- 
ment, 1194. 
pension  fund;  claims  on,  1103. 
Navy  Department — 

Chiefs  of  bureaus  to  furnish,  385. 
Form  of,  1102,  1103. 

Items  of  expenditure  required  to  be  included  in, 
1102,  1103. 
Navy;  value  of  stores  on  hand  in  navy  yards,  381. 


ESTIMATES— Continued. 

New  items  and  variations  in  annual,  to  be  exfilaincd, 

1102. 
Official  designated  for  preparation  of,  in  each  depart- 
ment, 1391,  1392. 
Pay  of  the  Navy,  form  of,  1312. 
Per  diem  allowance  in  lieu  of  subsistence;  travel  of 

civil  employees,  1398, 1399. 
Printing  and — 
Binding,  1101. 
annual,  1296. 

submission  to  Congress,  1232,  1248. 
to  accompany  reports  and  documents  sub- 
mitted to  Congress,  1230. 
Engraving,  Hydrographic  Office,  1197. 
PubUc  works,  form  of,  1102. 
Reduction  of,  to  meet  revenues,  1315. 
Repairs  and  changes  in  naval  vessels;  appropriation 

required  for,  1299. 
Reports  accompanjring — 

Buildings  owned  in  District  of  Columbia,  1553. 
rented,  1191. 

in  District  of  Columbia,  1218. 
CiviUans  employed  under  Increase  of  the  Navy, 

etc.,  1272. 
Expenditures  in  previous  year,  1102. 
Extracts  from  annual  reports,  1179. 
Inefficient  employees,  1204. 
Lump-sum  employees,  1312,  1313,  141S,  1419. 
Outstanding  appropriations,  1102. 
Persons  employed  during  previous  year,  1386. 
Proceeds  of  sales,  pubUc  property,  1103,  1104. 
Reason  for  waiving  apportionment  of  appropria- 
tions, 1104,  1105. 
Sales  of  old  material,  etc.,  1360. 
Revised  Statutes  and  Statutes  at  Large  to  be  cited  in, 

1101. 
.Salaries;  form  of,  1101,  1102. 
Special  or  additional;  form  of,  1469. 
Specific,  general,  and  contingent  expenses,  Navy  De- 
partment, 385. 
Time  for  submission  of,  1179,  1274,  isa'j. 
Treaties  to  be  cited  in,  1101. 
Variations  in,  annual,  to  be  explained,  1102. 
Vehicles;  passenger  carrying;  to  be  submitted  in  de- 
tail, 1398. 
ESTOPPEL: 

See  A  caused;  Waivers. 
ETHICS: 

Professor  of,  Naval  Academy,  771. 
EVIDENCE: 

See  Confession;  Documentary  evidence;  Self -criminatiun. 
Accoimts;  jurisdiction  of  accounting  ofiicers  to  require; 

244. 
Accused  absent;  can  not  be  received,  1030. 
Admissibihty  of;  court-martial  decides,  1024,  1025. 
Admission  as  to  what  absent  witness  would  testify,  1 32, 

1055. 
After  plea  of  guilty  before  court-martial,  1024. 
Character,  1024. 

right  of  accused  to  obtain  witnesses,  133. 
Compelling  accused  to  exhilnt  his  person,  12:^. 
Conspiracy  cases,  992,  993. 
Copies  of  consular  records,  429. 
court-martial  records,  1036. 

department  records,  424,  426,  427,  428,  1009,  1010, 
1023. 
Court  of  Claims;  how  obtained,  1364,  1365. 
Courts-martial,  1021-1025. 

all  evidence  should  be  recorded  by,  1019,  lOM. 


1619 


INDEX. 


KVIDEN'CE-Continucd. 

C'oiirl.s-nmrtial;  inadmissible  whilecourt  is  cleared,  1030' 

general  rules  governing,  1024. 
Courts    of    in<iuiry;  proeeedings    admissible    before 
courts-martial,  131, 132,  10.56,  1057. 
to  record,  1056. 
Cumulative,  accused  not  entitled  to  process  for  obtain- 
ing, 132. 
Depositions,  admissibility  in  naval  courts,  131,  1023, 
1311, 1312. 
in  State  courts,  125. 
Dying  declarations,  admissiV>ility  of,  132. 
Embezzlement;  records,  etc.,  1330,  1331. 

transcript  from  Treasury  records,  428. 
Examining    boards;  court-martial    proceedings    con- 
sidered by,  718,  719. 
records  of  department,  etc.,  considered  by,  722, 723. 
statements  submitted  to,  under  oath,  723. 
Extracts  from  journals  of  Congress,  428. 
General  provisions  relating  to,  421-430. 
Handwriting,  1024, 1389. 
Line  of  duty  cases,  611-612. 
Moral  unfitness  for  promotion,  627-628. 
Newly  discovered;  reopening  of  promotion  proceed- 
ings, 616. 
Oral,  before  simimary  courts-martial,  1006. 
Papers  unlawfully  seized,  123. 

Proceedings  before  congressional  committees,  restric- 
tion on  use  in  criminal  cases,  421. 
State  laws  and  records,  429,  430. 
Summary  courts-martial,  to  be  given  orally,  132,  1008. 
Territorial  records  and  laws,  429,  430. 
Title  to  lands  purchased  by  United  States;  expense  of 

obtaining,  283. 
Transcript  of  Treasury  Department  records,  427. 
EXAMINATIONS: 

See  Appointments;  ExaminiJig  boards;  Promotion;  Wit- 
nesses. 
Acting  ensigns  for  promotion  to  lieutenant  (junior 

grade),  1436. 
Advancement  in  rank  of  staff  officers,  1473,  1481,  1482. 
Applicants  for  reserved  list,  1392,  1393. 
Appointment — 

Acting  chaplains,  1396. 

ensigns  for  engineering  duty,  1435. 
Assistant  paymasters,  470. 

surgeons,  462. 
Ensigns  from  warrant  officers,  1277. 
Machinists,  1268, 1269. 
Marine  Corps,  1270,  1461. 
Midsliipmen,  748. 
Nurses,  female.  Navy,  1303,  1304. 
Pay  clerks.  Navy,  1407. 
Pharmacists,  1420. 
Aviation  officers,  for  promotion,  1439. 
Civil  employees,  202,  780. 
Competitive — 

Appointments  depending  on  result,  94. 
Assistant  surgeons;  held  illegal,  465,  466. 
Candidates  for  machinist,  1268,  1269. 
Enlisted  men  for  appointment  as  midshipmen, 

1472,  1473. 
Marine  Corps;  to  determine  precedence  of  officers, 

1462. 
Not  authorized  for  promotion,  685. 
Warrant  officers  appointed  as  ensigns,  1277. 
Coastitutionality  of  statutes  requiring,  709. 
Dental  officers,  for  increased  pay  and  allowances,  1421 
Engineer  officers,  promotion,  1435. 
Ensigns  for  promotion  to  lieutenant  (junior  grade), 
1190. 


EXAMINATIONS— Continued. 
Failure- 
Discharge;  due  process  of  law,  124. 

Former  warrant  and   commissioned  warrant 
officers,  1550,  1551. 
MoraUy,  Navy,  597,  623,  630,  1189. 
Physically,  Marine  Corps;  retired  rank,  965. 
Navy;  retired  rank,  1366. 

selected  officer  retired  with  actual  rank, 
1433. 
Professionally,    Marine   Corps;  loss   of  numbers, 
1463. 
Navy;  suspended  from  promotion,  729-734. 
selected  officer  thereafter  ineligible  for  pro- 
motion, 1433. 
Reexamination,  Marine  Corps,  discharge,  1463. 

Na\'y;  dropped  from  service,  729-734. 
Retirement  of  officer,  Navy,  not  recommended  for 
promotion,  594,  911. 
Irregularities;  courts  without  jurisdiction,  596. 
Machinists  for  promotion  to  chief  machinist,  1314. 
Maruie  Corps  promotions,  707-709,  924-927,  965,  1270, 

1463. 
Medical  Corps;  promotions,  1251. 
Midshipmen;  deficiency;  status,  751-755. 

final  graduating  examination  defined,  687. 
Naval  Reserve  Force;  appointment,  1445, 1451. 
eonflrmation,  1444, 1445. 
promotion,  1445. 
provisional  rank,  1444. 
Oral  or  written,  discretionary,  514. 
Pay  clerks  and  acting  pay  clerks,  for  promotion,  1407. 
Pharmacists  for  promotion  to  chief  pharmacist,  1420. 
Physical,  Marine  Corps,  707,  70**,  1463. 
President  to  prescribe  for  Marine  Corps  appointments, 

1270. 
Promotion- 
Delayed;  commencement  of  pay;  rank  antedated, 
832-838. 
new  physical  not  required,  709. 
Fatally  defective,  616. 

Navy;  facts  once  determined  not  reopened,  1183. 
mental,  moral,  and  professional,  711-721. 
physical,  707-710. 
retirement  of  officer  not  recommended  by  both 

boards,  594. 
selected  officers  required  to  take,  1433. 
Not  a  trial,  629. 

Not  sufficient  for  retirement,  601. 
Oral  or  written;  discretionary,  514. 
Pay  of  officer  undergoing,  709. 
Physical  disability  due  to  woimds  in  line  of  duty, 

709. 
Reopening  of  proceedings;  new  evidence,  616. 
Seniority,  684,  685. 
Special  for  enlisted  men  rewarded   for  heroism, 

614. 
Staff  officers;  required  only  for  advancement  in 

rank,  1481, 1482. 
Subject  to,  effect  of,  834. 
Time  of  holding,  710,  711,  734,  834,  924. 
Revocation  of  President's  action,  596,  630,  728,  734. 
Stafi  officers  for  advancement,  708, 1473,  1481,  1482. 

required  for  advancement  in  rank  only,  1481, 1482. 
Supervisory  boards;  examinations  for  promotion,  724. 
Supply  Corps;  promotions,  471. 
Temporary  promotion:  general  law  not  applicable,  721. 
Warrant  officers  for  promotion  to  commissioned  war- 
rant officers,  1267. 
to  ensign,  1277. 


1620 


INDEX. 


EXAj>UN1NG  BOARDS: 

Acting  chaplains  for  appointment  as  chaplain,  1396. 
Assistant  paymasters,  for  appointment,  470. 
Approval  of,  by  Secretary  of  the  Navy,  1481,  1482. 
by  President,  724-728,  1189. 
professional  failure,  Marine  officer,  1463. 
Burden  of  proof,  720,  721. 
Candidate — 

For  promotion,  right  to  be  present,  723. 

right  to  submit  statement  under  oath,  723. 
Not  to  be  rejected  without  public  examination,  728. 
Waiver  of  right  to  appear  before,  723,  728. 
Civil  courts;  no  jurisdiction  over,  728. 
Counsel  for,  detailed  by  Judge  Advocate  General,  723. 
Discharge  of  oflTicers  found  not  qualified  by,  124,  623, 

630,  729-734,  1189,  1463. 
Evidence  before;  records  of  department,  etc.,  722,  723. 
Fatally  defective,  616. 
Foreign  stations,  convening  of,  1472. 
Form  of  report  by,  728,  729. 

Judge  Advocate  General's  duties  relating  to,  1186. 
Machinists  for  promotion  to  chief  machinist,  1314. 
Marine  Corps — 

Promotion,  924-927. 

how  constituted,  1219. 

loss  of  numbers,  officer  found  not  qualified  by, 
1463. 
To  determine  precedence  of  officers,  1462. 
Naval  Reserve  Force;  appointment  and  promotion; 

how  constituted,  1445. 
Pay  clerks.  Navy;  for  appointment  of,  1407. 
Proceedings  not  a  trial,  629. 
Promotion — 
Navy,  711. 

candidate's  right  to  appear  before  board,  723, 

728. 
consideration   of    court-martial    proceedings, 

718,  719. 
duty  of,  to  weigh  evidence,  720. 
how  constituted,  722. 
majority  governs,  721. 
powers  of,  722. 
record  to  be  kept,  724. 

selection  by  board  of  naval  officers,  1430-1433. 
Secretary  of  the  Navy  empowered  to  take  action 

on  proceedings  of,  1481, 1482. 
Supervisory,  724. 
Questions  of  law  before,  712. 
Record— 

Of  officer  considered  by,  722,  723. 
President's  action  on  finding,  724-728. 
Secretary  of  the  Navy  may  act  for  President,  1481, 
1482. 
Reopening  of  proceedings;  new  evidence,  616. 
Repairs  to  vessels;  reports  concerning,  776,  777. 
Revocation  of  President's  action,  596,  630,  728,  734. 
Secretary  of  Navy  to  convene  for  examination  of  ap- 
plicants for  reserve  list,  1392, 1393. 
Statements  under  oath  submitted  to,  723. 
Suspension  of  officer  found  not  qualified  by,  729-734, 

1433. 
Warrant  officers  for  promotion  to  commissioned  war- 
rant officers,  1267. 
Witnesses  before;  testimony  recorded,  724. 
EXAaiPLE: 

Commanding  officer's  duty  as  to,  978,  979. 
EXCESSIVE: 

Definition;  bids  for  naval  supplies,  1114. 
Sentence,  not  void,  403. 


EXCHANGE:     . 

See  Embezzlement;  Public  property. 

Appreciation  in  value  of  foreign  coin,  credited  to  Pay, 

Miscellaneous,  1222. 
Public  moneys,  contrary  to  law,  1098,  1100,  13.30. 

postal  employees,  1344. 
Quarters;  agreement  relating  to,  unauthorized,  702. 
Stations;  officers  not  entitled  to  mileage  when  per- 
mitted to  make,  844. 
EXCLUSIVE  JURISDICTION: 

Lands  purchased  by  United  States,  282-284. 

Power  of  Congress  over  United  States  buildings,  etc., 

72. 
United  States;  crimes  committed  within,   1348-1351, 
1353, 1354. 
laws  of  States  applicable  in  Federal  reservations, 
1351. 
EXECUTIVE: 
See  A  id. 

Government  not  liable  for  illegal  acts  of,  79. 
Power — 

To  establish  regulations,  59,  82,  195,  784,  787. 
Vested  in  President,  77. 
Subordinate  officers  act  for  President,  78. 
EXECUTIVE  DEPARTMENTS: 

See  Appropriations;  Attorney;  Buildimgs;   Civil  estab- 
lishment;   Claims;    Contracts;  Delegation  of  poivers; 
Details;  Estimates;  Heads  of  departments;  Navy  De- 
partment; Pay   of  civil   establishmerU;  Printing    and 
binding;  Public  property;  Records;  Regulations;  Re- 
ports. 
Accounting  officers'  action  conclusive  upon,  246-248. 
Accumulated  documents;  disposal  of,  1234. 
Attorneys;  notaries  public  appearing  before,  1295. 

public  officers  or  employees  appearing  before,  1333. 
"Branch "  not  synonymous  with  "department, "  192. 
Buildings — 

In    District   of  Columbia;  distribution    of   office 

space,  1524,  1525. 
Not  to  be  draped  in  mourning,  1220. 
Owned  by  Government;  reports  to  Congress  con- 
cerning, 1553. 
Rented;  authority  to  rent  others  instead  of  those 
occupied,  1187. 
District  of  Columbia;   specific   appropriation 

required,  1181, 1182. 
report  to  Congress,  1191, 1218, 1391,  1543. 
Business;  delays  in  performing,  344. 
distribution  of,  193,  209. 
monthly  reports  as  to   condition;  extension   of 

hours  when  in  arrears,  1221. 
quarterly  reports  to  President,  1221. 
Chief  clerks,  duties  of,  209. 

to  administer  oaths  of  office,  1215. 
Claims;  Attorney  General  may  require  information  in 

suits,  220. 
Closing — 

Of,  for  deceased  ex-official,  forbidden,  1220. 
Onhohdays,  201. 
Constitutional  authority  for,  78,  83. 
Contingent  funds  not  expended  without  written  order 

of  head  of  department,  1105, 1106. 
Contracts  for  stationery,  etc.,  1117, 1358. 
Courts' jurisdiction  over  business  of,  345-348. 
Custody  of  property  and  records,  193,  194. 
Data  furnished  for  Official   Register  of  the  United 

States,  1235,  1236. 
Deficiencies  not  to  be  incurred  by,  1104,  1105,  1116, 

1238,  1288. 
Definition,  191,  225,  331. 


1621 


INDEX. 


EXECUTIVE  DEPARTMENTS— Continued. 

Definition  of  executive  and  judicial  departments,  192. 
Details  to,  from  outside  District  of  Columbia;  restric- 
tions on,  1188,  1290,  1291,  1384. 
Distribution  of  documents  and  other  publications  by , 

1239. 
Fuel  for  use  of,  1507,  1553. 
Ooneral  provisions  applicable  to,  189-228. 

provisions  applicable  to  public  olTioers,  10G5-1073. 
Holidays,  201,  781,  782,  1194,  1198,  1220,  1221,  1224,  1263. 
Hours  of  business,  201,  1220,  1221. 
Investigations,  administration  of  oaths,  217. 
Libraries  to  receive  public  documents,  etc.,  1240. 
Names  and  history  of,  189. 
Officers  of  Navy  not  part  of  unless  holding  statutory 

positions,  213,  215. 
Offices  not  at  seat  of  government,  191 . 
PoUtical  contributions,  783,  1180,  1181,  1334, 1335. 
Records — 

Copies  of  for  use  in  court,  426,  427. 

Students  and  others  afforded  facilities  for  study 

and  research,  1275. 
Transferred  to  Na\-y  Department,  1389. 
Regulations,  authority  to  make,  193. 
Seal  of— 

Affixed  to  commissions  of  officers,  1248. 
Counterfeiting,  etc.,  1489. 
Services  performed  or  supplies  obtained  for  another 
bureau  or  department;  appropriations   transferred 
579,  1409,  1536. 
Stationery,  etc.,  1117,  1358. 

Students,  scientific  investigators,  etc.,  afforded  facili- 
ties of,  1275. 
Suspension  of  officer  in,  does  not  create  vacancy,  215. 
Useless  papers  in  buildings  controlled  by;  disposal  of, 

1248. 
VoUmtary  services  not  to  be  accepted,  1104. 
Witness,  attendance  secured  in  cases  of  pending  claims, 
219. 
EXECUTIVE  ORDERS: 

Compilation  of,  fixing  pay  and  allowances  of  enlisted 

men,  Na\'y,  850-863. 
HoUdays  estabUshed  by,  1220,  1221. 
EXPATRIATION: 

Residence  abroad,  140,  572. 
EXPENDITURES: 

See  Appropriations;  Accounts;  Disbursing  officers. 
EXPENSES: 

See  Actual  expenses;  Travel;  Witnesses. 
EXPERTS : 

-Accounting  officers'  jurisdiction  as  to  payment  of  wit- 
nesses, 241. 
Civilian;  restrictions  on  employment  from  naval  ap- 
propriations, 1281. 
Employment  of  efficiency;  restrictions  on,  1394. 
Testimony  of,  611. 
Witnesses,  412,  1025,  10.56. 
EXPLOSIVES: 

Inspection  of  by  States,  49. 

Mailing  of,  punishment,  1342,  1343. 

Manufacture  and  possession  in  time  of  war  restricted, 

1492. 
Transportation  of,  1345, 1346. 
on  navigable  waters,  1519. 
EX  POST  FACTO: 

Deflnition  of,  74. 
EXTENSION: 

See  Enlistment;  Pay  of  Naval  Establishment. 
Enlistments,  1381, 1476. 

honorable    discharge    gratuity    and    continuous 
service  pay,  883-891. 


EXTENUATING   CIRCUMSTANCES: 

Clemency  recommended  by  members  of  naval  court- 
martial,  10:54. 
Officer  sued  for  illegal  act,  56. 
EXTORTION: 

By  informer,  1336. 
officials,  1329. 
EXTRADITION: 

Fees  of  witnesses,  416. 

Foreign;  naval  forces  employed  for  protection  of  ac- 
cused, 1167. 
Persons  in  tiaxy,  107. 
EXTRA  DUTY: 

Commanding  officer  may  impose  as  punishment,  1002. 
Pay,  Marine  Corps;  restrictions  on,  1315. 
Summary   court-martial   may   adjudge   extra  police 
duties,  1007. 
EXTRAORDINARY  HEROISM: 

Advancement  of  marine  officers  for,  921,  933. 

of  naval  officers  for,  453,  454,  734-736. 
Enlisted  men  rewarded  for,  512,  1275,  1521-1523. 
Medals  and   Navy  crosses  in  reward  for,  512,   1275, 

1402,  1521-1523. 
Officers  advanced  for,  to  be  additional  numbers  in 

grade,  1289. 
Retainer  pay.  Naval  Reserve  Force,  increased  because 

of,  1450. 
Thanks  of  Congress;  advancement  in  grade,  736. 
FACSIMILE: 

Signature  of  public  officer,  351. 
FACTS: 

Mistake  of;  reopening  of  accounts  for,  248-249. 
FALSE: 

.Vccoimts;  naval  personnel;  insurrection,  1170. 
records,  reports,  etc.,  punishment  for,  136S. 
.Vcknowledgments  by  officer  authorized  to  administer 

oaths,  etc.,  1323. 
Certificates;  punishment  for,  Navy,  990. 

or  writings;  punishment  for  offenses  not  otherwise 
specified,  1332. 
Claims  against  United  States,  990. 
Impersonation  of  officer  or  employee,  1323. 
Muster;  making  or  signing,  or  aiding,  abetting,  direct- 
ing or  procuring,  985. 
Receipts;  punishment  for  giving  or  receiving,  990,  1324. 
Records,  etc.,  1336,  1368. 
Report  by  mess  treasvu-er;  not  fraud  against  United 

States,  902. 
Returns;  naval  personnel;  insurrection,  1170. 
Statements;  claims  against  United   States;  punish- 
ment. Navy,  990. 
FALSEHOOD: 

Punishable  by  naval  court-martial,  984. 
FALSE  IMPRISONMENT: 

See  A  rrcst. 
FAMILIES: 
Officers— 

And  enlisted  men:  transportation  furnished,  1535, 
1536. 
and  nurses;  pasonent  of  death  gratuity  to,  1547. 
FEBRUARY: 

Compensation  during  month  of;  how  computed,  1297. 
FEES: 

See  Witnesses. 
FELONIES: 

At  sea,  power  of  Congress,  38. 
Definition  of,  1355. 
FEMININE: 

Masculine  includes,  in  construing   Federal  statutes, 
185, 1355. 


1622 


INDEX. 


FIDELITY: 

Honorable  discharge,  testimonial  of,  573. 
Leave  of  absence  reward  for,  574. 
nGHTS: 

Films  and  pictures  of  prize  fights,  1371, 1372. 
FILES: 

Useless,  at  navy  yards  and  stations,  1301. 

in  buildings  under  control  of  departments,  1248. 
in  executive  departments,  1202,  120:3. 
on  board  naval  vessels,  1381. 
FILING  DE\aCES: 

Public  Printer  to  furnish  to  departments,  1278. 
FILMS: 

Prize  fights,  1371, 1372. 
FINE  ARTS: 

Coramission  created;  duties,  etc.,  15.59, 1560. 
FINES: 

Courts-martial  authorized  to  adjudge,  990. 
Imprisonment  imtil  payment  of;  court-martial  sen- 
tence, 1063,  1064. 
Naval  courts-martial:  use  of  for  expenses  of  prisoners, 
1313. 
hospital  fund  to  be  credited  with,  1159. 
FIRE  ENGINES: 

Estimates  and  appropriations  for.  Navy,  lia3. 
FIREMEN: 

Enlisted  men  serving  as;  additional  pay  for,  878. 
Rating  of  coal  passer  changed  to,  1423. 
FIRST  LIEUTENANTS: 

Army:  lieutenants  (junior  grade)  rank  with,  662. 
Marine  Corps;  number  of,  1458. 
Na^•y;  detail  of  officers  to  duty  as,  577. 
FISC.\L  AGENTS: 

London;  account  of  Navy  Department  with,  1222 
FISCAL  YEAR: 

Accounts  to  be  settled  within,  259. 

Apportionment  of  appropriations  to  avoid  deficiencies 

during,  1104, 1105. 
Commencement  of,  257. 
Estimates  for,  1102. 

Expenditures  from  appropriations  after,  1107. 
FISH  COMMISSION: 

To  be  aided  by  heads  of  departments,  1133. 
Vessels  of;  relation  to  Navy  Department,  1186. 
FLAG   OFFICERS: 

Definition  of,  513,  514,  576,  577. 

Medals  of ionor  to  enlisted  men  on  approval  of,  512. 

President  may  delegate  power  to  award  Navy  crosses, 

1522. 
Rank  of;  commanding  officers  of  squadrons,  576,  660. 
FLAGS: 

Enemies';  collection  of,  381,  790. 

Estimates  and  appropriations  for,  Navy,  110:5. 

Issued  free  of  cost ;  used  for  draping  coffins  of  officers 

or  enlisted  men,  i:397. 
National  ensign;  pennant  of  Naval  Reserve  Force  not 

to  be  flown  in  lieu  of,  1448. 
Pennant  for  merchant  vessels  commanded  by  members 

of  Naval  Reserve  Force,  1448. 
Striking  or  attempting  to  strike,  to  enemy  or  rebel; 
punishment  for.  Navy,  980. 
FLAGSHIP: 

Surgeon  of  the  fleet  shall  be  surgeon  of,  466. 
FLEET: 

Chief  of  Naval  Operation  charged  with  operations 

of,  1401. 
Engineer;  appointment  of,  499. 

assignment  of  line  officers  to  duty  as,  1435. 
pay,  792,  801. 
Medical  stores;  procurement  of,  466. 


FLEET— Continued. 

Naval  reserve;  general  provisions  relating  to,  1448-1451. 
Officers  of,  to  have  rank  of  admiral  and  vice  admiral, 

1481. 
Paymaster;  appointment  of,  474. 

pay,  792,  801. 

Surgeon;  appointment  of,  466. 

duties  of,  466. 

pay,  792,  801. 

FLEET  CORPORATION: 

See  Shipping  Board. 
FLOGGING: 

Prohibited  in  the  Navy,  1034. 
FLORIDA: 

Timber  lands  in,  protection  of,  1088. 
FLOTILLAS: 

Commanding  officer  of  may   convene  general  court- 
martial,  1442. 
FLOUR: 

Purchase  of  for  Navy,  1115. 
FLYING  CORPS: 

Additional  to  authorized  strength.  Navy,  1478. 
Allowances  not  increased  for  aviation  duty,  1513. 
General  provisions  relating  to,  1437-1441. 
Naval  Reserve  Force,  1454. 
FODDER: 

Transportation  for  Navy,  American  vessels,  1283. 
FOOTNOTE: 

Effect  of  as  regulation,  1064. 
FORAGE: 

Army,  furnished  naval  officers  cooperating  with,  433. 
Marine  Corps;  conxmutation  not  paid,  1194. 
Naval  officers  not  allowed,  1267. 
Purchase  of  in  excess  of  appropriations,  1116,  1288. 
FOREIGN: 

Almanac  offices;  exchange  of  data  with,  1382,  1383. 
Coin;  appreciation  in  value  of,  credited  to  Pay,  Mis- 
cellaneous, 1222. 
Courts;  depositions  for  use  in,  424. 
Hydrographic  surveys,  1106,  1237. 
Law;  Attorney  General  will  not  render  opinion  con- 
cerning, 299. 
Relations;  neutrality;  espionage,  etc.,  1482-1490. 

political  questions;  jurisdiction  of  courts,  104. 
Squadrons;  stores  furnished  to,  579. 
SuppUes — 

Purchase  of  for  Navy  in  emergencies,  1396. 
Purchase  of  hemp  for  Navy,  1115. 
United  States  articles  preferred  for  Navy,  prices, 
etc.,  considered,  1115. 
Vessels;  transportation  of  Navy  coal  in,  1408. 
FOREIGN  COUNTRY: 
See  Neutrality. 
Appropriation  for  obtaining  information  from  abroad; 

accounting  for  expenditures,  1417. 
Bad-conduct  discharge  not  to  be  executed  in,  100(i. 
Claims  for  damages  caused  by  American  forces  to  pri- 
vate property  in,  1504,  1508. 
Contracts  made  to  be  executed  in,  1114. 
Correspondence  with,  criminal,  1317. 

not  to  be  sold  or  destroyed  with  useless  papers, 
1381. 
Coimsel  for  naval  officer  in,  223,  224,  321. 
Court-martial  convened  in,  65. 
Death  of  officer  in;  funeral  expenses,  905,  906. 
Decorations,  etc.,  of  United  States  may  be  conferred  on 
military  forces  of,  1517. 
presented  to  American  officers,  75,  1187,  1516. 
unauthorized  wearing  of;  punishment,  1515,  1516. 
wearing  of,  by  American  officers,  1187,  1516. 
Defined  to  include  high  seas,  905. 


1623 


INDEX. 


FOREIGN  COUNTRY— Continued. 

Detail  of  naval  personnel  to,  576,  1399.  1410,  1.502,  15,50. 
Enforcement  of  United  State."!  laws  in,  69,  70. 
Extradition  from;  use  of  naval  forces  to  protect  ac- 
cused, 1167. 
Jurisdiction  over  United  States  vessels,  67. 
Lauds  acquired  in,  by  United  States,  286. 
Laws  of,  violated  by  naval  oflTicer,  121. 
Naval  Academy  students  admitted  from,  743, 1294. 
GflBce  in —  ' 

Acceptance  by  naval  personnel,  Brazil,  1399. 
Dominican  Republic,  1502. 
Haiti,  1416. 

South  American  Republics,  1556. 
Acceptance  by  United  States  officers,  75. 
Postal  arrangements  with,  329. 
Retired  officers  residing  in,  572. 

Sale  of  war  supplies,  lands,  buildings,  etc.,  to  Govern- 
ment of,  1516. 
Uniforms  of,  punishment  for  unlawfully  wearing,  1515, 
1516. 
FOREIGN  PORT: 

Abandoning  mariner  in,  1352. 
Discharge  of  enlisted  men  in,  555,  556,  1006. 
Naval  officer  empowered  to  act  as  consul  in,  575. 
Naval  vessels  in;  bills  of  health  and  quarantine  ex- 
penses, 1103. 
Witnesses  transported  from,  to  United  States,  420, 
576. 
FOREIGN  SHORE  DUTY: 

Advances  to  naval  officers  ordered  to  and  from,  838, 

1472. 
Brazil,  1399. 

Dominican  Republic,  1502. 
Haiti,  1416. 
Pay  of — 

Marine  Corps,  941,  948, 1275. 
Naval  officers,  818-821,  1275,  1302. 
under  personnel  act,  1267. 
South  American  Republics,  1556. 
Warrant  officers,  Marine  Corps;  pay,  1474. 
Navy;  pay,  1529. 
FOREIGN  STATION: 

Acting  paymasters,  pay  of,  839. 

Advances  of  pay  to  persons  in  naval  establishment, 

838,  1472. 
Appointment  of  disbursing  officer  abroad,  788. 
Civilian  storekeepers  appointed  for,  533. 
Convening  of  examining  and  retiring  boards,  1472. 
Definition,  1472. 
Deprivation  of  shore  liberty  on,  by  summary  court 

martial,  1006. 
Government  transport  to  be  used  for  transportation  of 

families  to  and  from,  1536. 
Pay  of  storekeepers  on,  846,  847. 
Pro\'isions  and  stores,  Navy;  estimates  and  appro- 
priations for,  1103. 
Purchase  of  supplies;  consular  certificate  required  as 
to  prevailing  prices,  1114. 
without  advertising,  1113. 
Storekeepers,  naval  officers  detailed  for  duty  as,  579. 
FORESTS: 

Use  of  earth,  stone  and  timber  by  Na\'y,  1409. 
FORFEITURE: 

Absence  without  leave;  pay  of  persons  in  service  of 

United  States,  1297. 
Citizenship;  desertion  law  not  bill  of  attainder,  7.3-74. 
power  of  Congress  to  provide,  140. 
rights  by  desertion  in  time  of  war,  1077, 1078. 
Contractors;  double  contract  price  for  nonperformance, 
nil. 
liquidated  damages,  1113. 


FORFEITURE-Continued. 

Deposit  accompanying  proposal  for  purchase  of  naval 

vessel,  1192. 
Desertion;  amount  credited  to  naval  hospital  fund, 

1273. 
Imposed  by  naval  courts-martial;  used  for  expenses 

of  prisoners,  1313. 
Pay- 
Absence  due  to  misconduct,  825, 1436. 
Deck  courts  may  adjudge,  1308. 
Enlisted  men.  Marine  Corps,  950. 

Navy,  869-871. 
Naval  officers;  sentence  of  court-martial  required, 
820.1436. 
Retainer  pay,  Naval  Reserve  Force,  14.50, 1451,  1546, 
1.5.52. 

FORGERY: 

Bonds,  public  records,  or  other  writings,  1322. 
Deeds,  powers  of  attorney,  receipts  or  other  writings, 

1322,  1323. 
Discharge  certificates,  naval  ser\ice,  569, 1473. 
Having  forged  papers  in  possession,  1323. 
Money  orders  or  signatures  thereon,  1343, 1344. 
Seal  of  executive  department  or  naval  pass  or  permit, 

1489. 
Signatures  in  coimection  with  claims  against  United 
States;  punishment.  Navy,  990. 
FORMER  JEOPARDY: 

See  Jeopardy. 
FORMS: 
Accounts — 

Navy  Department  expenditures,  1102, 1103. 
Of  public  moneys,  1097. 

Prescribed  by  Comptroller  of  the  Treasury,  1224. 
Advertisement,  sale  of  naval  vessels,  1192. 
Affidavit  to  contract  returns,  1119. 
Annual  reports,  1239. 

Application  for  writ  of  habeas  corpus,  404. 
Appropriation  bills,  1290. 
Bonds,  481-484. 

Bonds:  departure  from  statutory  requirements,  483, 
484. 
special  disbursing  agents,  1095. 
Certificate  of  indebtedness  against  officer  losing  public 

property,  1223. 
Charges  and  specifications,  1027. 
Claims  for  compensation,  civil  employees  injured  in 
service,  1468. 
lost  or  damaged  property,  naval  persoimel,  1493. 
Commissions  of  officers,  217,  1248. 
Contracts— 

Eight-hoiU"  provision,  1370,  1371. 

Navy:  shall  provide  a  lien  in  favor  of  Government, 

1369. 
Printed  blanks  to  be  furnished  officers  making, 

1119. 
Returns  for  filing  in  returns  office,  1119. 
Shall  require  delivery  of  specified  quantity,  1114. 
Stipulation  that  Members  of  Congress  have  no 

interest,  1118. 
Writing  required:  signatures,  1118,  1119. 
Court-martial  sentence;  certainty  required,  1064. 
Deck-court  records,  what  to  contain,  1309. 
Enlistment,  555,  556. 

Estimates  of  Navy  Department,  1102,  1103. 
pay  of  the  N&vy,  1312. 
special  or  additional,  1469. 

submitted  to  Congress.  1101,  1102,  1290,  1315,  1385, 
1391,  1.392. 
Examining  board's  report,  candidate  recommended 
for  promotion,  728,  729. 


1624 


INDEX. 


FORMS— Continued. 

Guarantee  required  to  accompany  proposals  for  naval 
contracts,  1112,  1113. 

Honorable  discharge,  Navy,  569. 

Money  requisitions  on  Treasury,  1104. 

Oath  of  office,  328,  748, 1065, 1066; 

Orders  assigning  officer  to  duty  as  flag  officer,  577. 
to  shore  duty,  naval  officers;  recitals  in,  1191,  1218, 
1219. 

Power    of  attorney;  prosecution    of   claims    against 
United  States,  1093. 

Public  Printer  to  furnish  to  departments,  1278. 

Requisition  for  printing  and  binding,  1239. 

printing;  signed  by  chief  of  the  department,  1238. 

Resolutions,  187. 

Return  to  writ  of  habeas  corpus,  405,  406. 

Reviewing  authority's  action  in  court-martial  cases, 
1040-1042,  1052. 

Selection  board's  report,  1433. 

Senate's  confirmation  of  nomination,  735. 

Statutes,  187. 

Subpoenas,  425. 

Summary  court-martial  proceedings,  1009,  1311. 
FORNICATION: 

Punishment  for,  1354. 
FORTIFICATIONS: 

Injuries  to,  1327. 
FORWARD  WARRANT  OFFICERS: 

See  Vt'anant  officers. 

Promotion  of  enlisted  men  to,  512. 
FRACTIONS: 

Computation  of  officers  in  any  corps,  grade  or  rank, 
1428, 1429. 
in  Marine  Corps,  1458,  1459. 
FRANKS: 

See  Penalty  envelopes. 
FRAUD: 

Against  United  States,  990,  991. 

Claims  against  United  States,  990,  1324. 
for  wages,  etc.,  1323. 

Contracts;  duty  of  head  of  department,  352. 

Discharge  obtained  by;  revocation  of,  .568. 

False  reports  by  mess  treasurer,  not  fraud  against 
United  States,  902. 

Invalidating  appointment  to  office,  96. 

Investigation  of,  217. 

Making  or  signing  false  muster  or  aiding,  abetting, 
directing  or  procuring,  985. 

Punishable  by  naval  court-martial,  984,  990,  991. 
FRAUDULENT  ENLISTMENT: 

Death  before  discovery  of;  payment  of  gratuity,  554. 

Discharge  of  minor  on  request  of  parents,  1402,  1403. 

Marine  Corps,  409,  996,  1000,  1222. 

Minors;  not  void  but  voidable,  550,  551. 

Navy,  407-409,  996,  1000,  1222. 

Not  a  defense  to  desertion,  977. 

Offenses  during,  punishable  by  court-  martial,  62. 

Pay  of  enlisted  men.  Navy,  874. 

Prohibited  classes,  void  and  not  voidable,  .552. 

Punishment,  996,  1000,  1222. 

Voidalsle;  court-martial  jurisdiction,  977. 

Void;  court-martial  jurisdiction  during,  976. 
FREIGHT: 

Estimates  and  appropriations  for  freight  and  trans- 
portation, 1102. 

Excessive  charges   by   American   vessels   for   naval 
supplies,  1283. 

Transporting  on  naval  vessel,  985. 
FUEL: 

See  Contracts. 


FUEL— Continued. 

Alaskan  coal;  preference  right  to  purchase  for  Army 

and  Navy,  1307. 
District  of  Columbia — 

executive  departments,  1507,  1553. 
general  provisions  not  applicable  to  Naval  Es- 
tablishment in,  1530. 
Naval  hospital  in,  1530. 
Estimates  and  appropriations  for.  Navy,  1103. 
Navy;  purchase  of,  in  excess  of  appropriations,  1116, 

128S. 
Purchase  of  vessels  for  transportation  of,  1482, 1515. 
Sale  of,  to  officers,  943,  951. 

to  volunteer  patrol  squadrons,  1455. 
FUEL  AND  TRANSPORTATION: 

Appropriation  available  for  mining  and  transporting 

coal  in  Alaska,  1547. 
Appropriation  available  for  purchase  of  vessels,  1482, 

1515. 
Use  of  appropriation,  1407. 
FUGITIVES: 

From  labor  or  service;  naval  forces  not  to  return,  994. 
FUNDS: 

See  Public  moneys. 

Civil  service  retirement  and  disabiUty  fund,  1540, 1541. 

Clothing  and  small  stores  fimd  created,  1204. 

Fines  and  forfeitures;  naval  courts-martial;  expenses 

of  prisoners  paid  from,  1313. 
Midshipmen's  store,  770. 
Naval  hospital  fund,  1159,  1160. 
Naval  pension  fund;  1153,1154. 
Naval  supply  account  fund;  creation  of;  charges  and 

credits;  amount  of,  etc.,  1557. 
Navy  petroleum  fund;  use  of,  1399. 
Small  stores  fund  created  for  Navy,  1184. 
FUNERAL: 
See  Burial. 

Enlisted  man  furloughed  without  pay,  906. 
Estimates  and  appropriations  for  expenses,  1103. 
Expenses,  naval  personnel,  905,  906,  149S. 
Flags  issued  free  of  cost;  used  for  draping  coffins,  1397 
Payment  of  claims  for,  from  amounts  due  deceased 
naval  personnel,  1305,  1306. 
FURLOUGH: 

Disabled  soldiers,  sailors,  and  marines  under  treat- 
ment; reduced  railroad  fares,  1554. 
Enlisted    men,    additional    to    authorized    strength, 
Navy,  1478. 
burial  expenses,  906. 

clerical  duty  at  marine  headquartres,  1474. 
hospital  treatment,  903. 
in  lieu  of  discharge  by  purchase  or  special  order, 

1436. 
pay  on  recall  to  active  duty,  890,  891. 
status,  537,  871,  872,  906. 

not  troops  of  United  States,  1180. 
Officers;  by  Secretary  of  the  Navy,  5S3,  826. 

by  Secretary  of  the  Navy,  as  measure  of  economy, 

826,  827. 
may  be  placed  on,  if  not  dismissed  by  court- 
martial  sentence,  583. 
Retirement  distinguished  from,  583. 
FURLOUGH  PAY: 

Amount  of;  officers  of  Navy,  826,  827. 
Officer  detailed  to  ocean  mail  vessel,  1217. 
Retired  officers,  910,  915. 

transferred  from,  to  retired  pay  list,  916. 
Retirement  of  marine  officers  on;  illegal,  622,  968. 
of  Navy  officers  on,  authorized,  617. 
FURNITURE: 

Contracts  for,  not  to  exceed  appropriations,  1116. 


1625 


INDEX. 


FUR  SEALS: 

Use  of  naval  forces  to  protect,  1387. 
GAMBLING: 

Punishable  by  naval  court-martial,  984. 
GARBAGE: 

Proceeds  from  sale  of,  232,  S99. 
GARXISHMENT: 

Retirement  annuities,  etc.,  civil  employees,  1543. 
Wages  of  enlisted  men,  .')73,  574. 
GASOLINE: 

Sale  of,  to  vessels  of  volunteer  patrol  squadrons,  1455. 
GENERAL: 

Account  of  advances;  authorized  for  the  Navy,  1183. 

Admiral  ranks  with,  GtiS. 

Admirals  to  have  same  allowances  as,  1512. 

Amnesty,  power  to  grant,  85,  86. 

Board;  creation  of,  3.57. 

Location  of  armor  plants,  1419. 
Retired  oflicer  on  duty  with,  1 137. 
Inspector  of  Supply  Corps;  duties  of,  1304. 
Orders;  violating  or  refusing  obediciuc  to,  985. 
Supply  Committee,  computing  machines  sold  to  de- 
partments at  exchange  prices  by,  1557. 
procurement   of  supplies   for   executive   depart- 
ments, 1358. 
repair  of  ts^pewriters  by,  1557. 
typewriters  sold  to  departments  by,  15.")7. 
GENTLEMAN: 

Conduct  unbecoming  officer  and,  punishment.  Navy, 
998-1000. 
GERMANY: 

Termination  of  war  with;  date  fixed  for  certain  pur- 
poses, 1557-1559. 
War  with,  effect  of  termination  on  insurance  under 
war  risk  act,  1501 . 
effect  of  termination  on  war  risk  compensation, 
1498. 
GESTURES: 

Provoking  or  reproachful,  use  of,  toward  other  persons 
in  Navy,  984. 
GIFTS: 

See  Public  property. 

Acceptance  of,  by  Secretary  of  the  Navy  for  naval  ves- 
sels, 1305. 
Civil  service  retirement   and   disability   fund   may 

receive,  1540,  1541. 
Lands  acquired  by  United  States,  285. 
Superior  officials  not  to  accept,  1073. 
GOLD: 

Disbursements  to  be  made  in,  1100. 
Transporting  on  naval  vessel,  985. 
GOOD  CONDUCT: 

Medals,  additional  pay  for,  866. 

Retainer  pay,  Naval  Reserve  Force,  increased  because 
of,  1450. 
GOVERNMENT  FUEL  YARDS: 

District  of  Columbia;  storage  and  purchase  of  fuel  for 
departments,  1507. 
trucks  to  be  used  for  other  hauling  for  (iovernment, 
1553. 
GOVERNMENT  HOSPITAL  FOR  THE  INSANE: 

See  St.  Elizabeths  Hospi/al. 
GOVERNMENT  PRINTING   OFFICE: 

See  Printing  and  binding. 
GOVERNORS: 

Applications  for  naval  equipment  to  be  used  by  mili- 
tary schools,  1277. 
GRADES: 

Chiefs  of  bureaus;  whether  office  is  a  grade  in  the  Navy, 

366,  ;«>7,  379. 
Commander;  exists  only  in  line,  378, 507,  779. 


GRADES—Continued. 
Defined,  681,  r,s2,  779. 

and  distinguished  from  title,  rank  and  office,  449, 

450,  683. 
rank  distinguished,  378,  499,  577,  6.35-638,  682,  686. 
synonymous  with  rank,  379,  466,  678, 680,  907. 
Line  officers,  designations  of,  447. 
Marine  Corps  officers,  917, 918. 
Number  of  officers  exceeded,  736. 
Provisional,  Naval  Reserve  Force,  1444. 
Retired  officers,  631. 

Secretary  of  the  Navy  may  establish,  for  enlisted  men, 
1552. 
GRADUATES: 

Naval  Academy;  precedence,  687. 
GRADUATION: 
Date  of,  688. 
Definition  of,  687. 
GRAND  JURY: 

Constitutional  provision  relating  to,  118, 119. 
Court  of  inquiry  analogous  to,  1055. 
Government  employee  witness  before,  416. 
GRATUITY: 

Death  of  naval  personnel,  1546, 1547. 

not  applicable  to  persons  in  service  on  or  after 

October  6,  1917;  1500. 
payment  in  case  of  deserter  who  fraudulently  en- 
listed, 554. 
payments  by   Paymaster   General,    Navy;  juris- 
diction, 233,  234. 
Honorable  discharge,  883-891. 

enlisted  men.  Marine  Corps,  947. 
Jurisdiction  of  accounting  officers,  245. 
Medal-of-honor  men  allowed,  512,  1275. 
Naval  prisoners  paid,  on  discharge,  1310,  1311. 
One  year's  pay  to  oflTicer  wholly  retired  is  not,  621. 
Reimbursement  for  effects  lost  is  not,  272. 
Uniform,  Naval  Reserve  Force,  812,  813,  1510. 

not  checked  on  temporary  appointment  to  Navy, 

1510. 
not  reduced  by  appointment  to  office  in,  1444,  1451. 
War-risk  compensation  not  allowed  in  addition  to,  1499. 
GREAT  LAKES: 
See  Regattas. 
Loan  of  naval  equipment  to  military  schools  bordering 

on,  1277. 
Rules  for  preventing  collision,  1240-1246. 
GUAM: 

Acknowledgment  of  deeds  in,  1291, 1292. 

Census  to  be  taken  by  governor,  1525. 

Citizenship  in,  113. 

Civil  employees;  pay  while  in  transit,  1278. 

Governor  commissioned  by  President,  102. 

Governor's  certificate  as  to  acknowledgments  in,  1291, 

1292. 
Military  government  of,  109. 
governor's  powers,  HI. 
Passengers  transported  to,  by  Army  transports,  1298. 
Port  in,  is  not  port  of  United  States,  112. 
Secretary  of  the  Interior,  jurisdiction  relating  to,  395. 
Shore  duty  in;  additional  pay  allowed,  1275. 
Status  of;  unorganized  territory,  113. 
GUARANTEE: 

Contracts;  contractors  and  bidders  required  to  furnish, 
1111,1112. 
GUARANTOR: 

Contract  damages  charged  to  delinquent  bidder  and 
guarantor,  1112, 1113. 
GUARD: 

Military;  shooting  prisoner,  57,  403. 


1626 


INDEX. 


GUABDIAXS: 

Consent  of;  enlistment  of  minors,  548-551,  994. 
enrollment  in  Xaval  Reserve  Force,  1546. 
Insane  persons;  payment  of  pensions,  789. 
Minors  applying  for  enlistment;  papers  for  appoint- 
ment of,  prepared  witliout  charge,  1217. 
statement  required  as  to  age,  1402,  1403. 
GUILTY: 

Evidence  after  plea  of,  court-martial,  1024. 
GUNBOAT  COOUSSIOX: 

See  Recess  appointments. 
GUN  CAPTAINS: 

Enlisted  men,  Na\^;  additional  pay,  866. 
GUNNERS: 

See  Warrant  officers. 

Duties;  may  be  required  to  act  as  keeper  of  tlie  maga- 
zine, 533. 
GUNNERY  SERGEANTS: 

Pay,  allowances,  ranli,  retirement,  etc.,  1383. 
Rank  and  aUowanee  of  first  sergeants,  1271. 
GUN  POINTERS: 

Enlisted  men,  Is'a%-A',  additional  pay,  866. 
GUNPOWDER: 

Navy,  purchase  without  advertising,  1113. 
GUNS: 

Loan  or  gift  of  condemned,  to  societies  and  municipali- 
ties, 1249. 
Sale  of,  1516. 
SUN  STEEL: 

Advertising  required  for  purchase.  Navy,  1223. 
HABEAS  CORPUS: 

Allowance  of;  to  whom  directed,  404. 

Appeal  from  decision  in,  409. 

Arrest  of  petitioner  after  discharge,  409. 

Attorney  General  instructs  district  attorneys  concern  - 

ing,  324. 
Body  of  prisoner  to  be  produced  in  court,  407. 
Definition  of,  72. 
Form  of  application  for  writ  of,  404. 

return  to  writ,  405,  408. 
Fraudulent  enlistment  cases,  407-409. 
General  provisions  relating  to,  399-409. 
Hearing;  date  of,  407. 

Hearing;  summary;  disposition  of  party,  407. 
Inquiry  into  matters  not  of  record,  129. 
Issues  of  fact,  407. 

Jurisdiction,  civil  courts;  cases  tried  before  courts- 
martial,  128,  401-403,  1047-1051. 
Federal  courts  in  arrests  by  State  authorities,  51, 
52,  53. 
over  persons  in  Navy,  54. 
State  courts,  53. 
Naval  officers;  duty  when  served  with  writ,  405. 

under  nominal  arrest,  writ  not  granted  to,  1029. 
Refusal  to  obey;  punishment;  contempt  of  court,  405. 
Return  to  writ;  amendments  in,  407. 
Secretary  of  the  Navy  does  not  have  custody  of  prison- 
ers, 404. 
Suspension  of  privilege,  72. 
Time  allowed  for  return,  405. 
Writs  of,  explained,  400. 
HAITI: 

Detail  of  naval  persoimel  to,  holding  offices  in,  etc., 
1410. 
HANDWRITING: 

E\-idence  of,  1024,  1389. 
HARBOR: 

See  Regattas;  Rules  of  the  road. 

Commissioners;  collection  of  toll  from  United  States, 


50. 


New  York;  naval  officer  as  supervisor  of,  1198,  1199. 


HARBORING  DESERTER: 

Definition  of,  790. 

Punishment  for,  789,  790,  985,  988,  1326. 
HARD  LABOR: 

Authority  of  courts  to  impose;  criminal  code,  1355. 
Naval  courts-martial  may  sentence  to,  983,  984. 
HAULING: 

Secretary  of  the  Interior,  for  other  departments,  15.53. 
HAW.UI: 

Census  taken  of,  1525. 

Civil  employees:  pay  while  in  transit,  1278. 

Pearl  Harbor;  rules  governing  navigation,  anchorage, 

etc.,  1382. 
Status  of,  as  territory,  1075. 
H.4ZING: 

Brutal  or  cruel:  punishment,  1287. 
Definition,  1287. 

Pimishment,  752,  757-759,  1178, 1286,  1287. 
Rules  to  prevent,  1281 . 

Single  act  of;  midshipman  not  subject  to  dismissal 
without  court-martial,  12.SC. 
HEADS   OF  DEPARTMENTS: 

See  Delegation  of  powers;  Estimates;  Executive  depart- 
ments; Xavy    Department;  Oaths;    Regulations;    Re- 
ports; Secretary  of  the  Navy. 
Accounting  officers'  jurisdiction  with  relation  to,  236- 

244,  246-248. 
Act  for  President,  78,  191. 
Action  on  reports  of  chief  clerks,  209. 
Appeals  from,  83. 

to,  79,  362. 
Appointment  of  civil  employees,  205. 
of  special  disbursing  agents,  1095. 
imder  previous  administpation;  qualifications  not 
open  to  re\'iew,  96. 
Assistants,  authority,  213. 

authority  and  signature  of,  194. 
authority,  judicial  investigation  concerning,  422. 
Attorney  General  may  require  information  from,  220. 
Attorney  General's  opinions  required  by,  295. 
Attorneys  not  to  be  employed  by,  221. 
Bonds  may  be  demanded  by,  in  absence  of  statute, 

211,  476. 
Certificate  accompanying  applications  for  retirement 

of  civil  employees,  1540. 
Claims;  not  authorized  to  submit  estimates  for  pay- 
ment, 235. 
Commissioner  of  Fisheries  to  be  assisted  by,  1133. 
Commission  to  take  testimony  of,  422. 
Contingent  funds;  expenditures  require  written  order 

of,  1105,  1106. 
Com-t  of  Claims  may  call  on,  for  information   and 

records,  1364, 1365. 
Courts  desiring  evidence  or  records  of,  194. 

jurisdiction  as  to  appointment  and  removal  of 

employees,  338. 
jurisdiction  to  subpoena  as  witnesses,  424. 
jurisdiction  with  relation  to,  345-348. 
requiring  assistants  to  testify,  422. 
Data  furnished  by,  for  Official  Register  of  the  United 

States,  1235,  1236. 
Death,  resignation,  absence  or  sickness  of,  212,  214. 
Decisions,  Attorney  General  will  not  review,  302. 
binding  on  successors,  348,  349. 
binding  on  successors;  but  only  as  to  specific  case 

decided,  349. 
not  binding  on  courts,  348. 
of  accounting  officers  may  be  obtained  by,  1225. 
Deficiencies  proliibited;  removal  from  office  for  viola- 
tions, 1104,  1105. 


54641°— 22- 


-10.3 


1627 


INDEX. 


HEADS  OF  DEPARTMENTS-Continued. 

department  of  Justice  to  afford  all  legal  services  for, 
323. 

Evidence  to  be  furnished  Attorney  General  concerning 
title  to  lands,  2S3. 

Extra  compensation  disallowed  for  temporarily  per- 
forming duties  of,  217. 

Hours  of  labor  required  of  civil  establishment,  1220, 
1221. 

Information  furnished  to  Bureau  of  AVar  Risk  Insur- 
ance, 149."),  HOC). 

Leave  of  absence  granted  civil  establishment,  1221. 

Mandamus  proceedings  against,  79. 

May  use  force  to  prevent  removal  of  records,  194. 

Newspaper  advertising,   written  authority  required 
for,  1124. 

Opinions  required  by  the  President,  83. 

Pardoning  power  exercised  by,  85. 

Printing  of  annual  reports:  certificate  required  as  to 
matter  embodied  in,  1239. 
of  reports  from  bureau  chiefs;  discretionary,  1238. 
requisitions  to  be  signed  by,  1238. 

Records,  useless  papers,  disposal  of,  1202,  1203. 

Regulations  not  binding  on,  200. 
prescribed  by,  193,  1223. 

Reports  by,  as  to  condition  of  business,  1221. 

to,  as  to  condition  of  business;  action  taken  when 
in  arrears,  1221. 

Requisitions  for  printing  and  binding  made  by,   1239. 
report  to  Congress  concerning,  1231. 

Responsibility  for  official  acts;  decisions  relating  to, 
78,79,350,351. 

.Salary  of,  193. 

Signature,  what  constitutes,  351. 

Smithsonian  Institution  to  be  assisted  by,  in  acquisi- 
tions for  Zoological  Park,  1204. 

Subpoenaed  as  witness,  79. 

Temporary  vacancy,  how  filled,  99,  212,  214. 

Written  action  of,  required  to  waive  apportionment  of 
appropriations,  1105,  1384. 

Written  certificate  as  to  necessity  of  periodicals,  1408, 
1409. 
HEALTH: 

See  Disease. 

Accused  before  summary  court-martial:  punishment 
dependent  on,  1009. 

Bills  of,  expenses  and  appropriations  for,  Navy,  1103. 

Crews  of  naval  vessels:  duties  of  commanding  officer 
and  surgeon,  995. 

Fleet  surgeons  required  to  make  reports  to  Na\'y  De- 
partment, 466. 

State  authorities  can  not  require  reports  from  navaJ 
officers,  49,  50,  461. 
HEARING: 

Officer  entitled  to,  before  retirement.  Navy,  622. 
HEAT  AND  LIGHT: 

Accounting  officers'  jurisdiction,  234. 

Allowance  for  quarters ,  696,  827,  943. 

Civilian  professor  at  Naval  Academy,  701. 

Sale  of  fuel  to  officers,  943,  951. 

Warrant  officers:  allowance  for,  1430. 

Young  Men's  Christian  Association  buildings  in  na^^r 
yards,  1366. 
HELIUM: 

Right  of  United  States  to  extract  from  gas  produced 
by  leased  lands,  1532. 
HELPERS: 

Enlisted  men,  additional  pay  as  ship's  helpers,  866. 
HEMP: 

American  growth  or  manufacture  preferred,  1115. 


HEROISM: 

Advancement  of  naval  officers  for,  4.^3,  454,  734-736. 
Enlisted  men;  reward  for,  512, 1275, 1521-1523. 
Marine  officers,  advancement,  921,  933. 
Medals  and  Navy  crosses  in  reward  for,  512,  1275,  1402, 

1521-1523. 
Officers  advanced  for,  to  bo  additional  numbers  in 

grade,  1289. 
Retainer  pay.  Naval  Reserve  Force,  increased  because 

of,  1450. 
Thanks  of  Congress;  advancement  in  grade,  736. 
HIGH  SEAS: 

Commanding  officers.  Navy,  may  exercise  consular 

powers  upon,  575. 
Foreign  country  defined  to  include,  905. 
International  rules  for  preventing  collisions,  1204-1215. 
HISTORICAL  RECORDS: 

Alteration  of,  veto  of  bill  requiring,  35. 
HOLIDAYS: 

Closing  of  departments  on,  201. 

for  deceased  ex-officials,  forbidden,  1220. 
Days  declared  to  be,  781,  782,  1224. 
Excluded  from  leave  of  absence,  employees  in  de- 
partments, 1263. 
Executive  order  declaring,  1220,  1221. 
Hours  of  labor  in  executive  departments,  law  not 

applicable  to,  1220,  1221. 
Per  diem  employees,  days  allowed,  1194,  1198. 
Regulations  governing  pay  on,  787. 
Sundays;  following  day  observed,  782. 
Suspension  of  work  for  part  of  day  by   Executive 
order,  782. 
HOME: 

Commutation  of  quarters  for  officer  at,  700. 

Enlisted  men  on  receiving  ship,  after  discharge,  1201, 

1202. 
Naval;  establishment  of ,  authorized,  1159,  1160. 
Port,  change  of,  deemed  a  permanent  change  of  sta- 
tion, 1536. 
Residence  not  synonymous:  definitions,  876. 
Transportation  to;  enlisted  men  on  discharge,  1274, 

1275,  1415. 
Yard,  naval  vessels;  permanent  station  defined  to 
include,  1536. 
HOMESTEADS: 

General  provisions  relating  to,  1083-1087. 
HOMICIDE: 

See  Manslaughter;  Murder;  Suicide. 
Jurisdiction  of,  committed  on  naval  vessel,  66,  67. 
Murder  may  be  charged  as  manslaughter,  67. 
ResponsibiUty  of  military  guard  committing,  57,  403. 
Trial  of,  by  consular  court,  69. 
HONOR: 

Commanding  officers  to  show  example  of,  978. 
HONORABLE  DISCHARGE: 
See  Discharge. 
Gratuity,  883-891. 

enlisted  men.  Marine  Corps,  947. 
Navy,  under  personnel  act,  1269. 
HORSES: 

Army;  fiu-nished  naval  officers  cooperating  with,  433. 
Estimates  and  appropriations  for  purchase  and  main- 
tenance, Navy,  1103. 
Inspection  by  State  authorities,  50. 
Restrictions  on  use  of  by  public  officers,  1281. 
HOSPITAL  CORPS: 

Detailed  with  marines  detached  for  service  with  Army: 

jurisdiction,  1421. 
Enlisted  men:  additional  to  authorized  strength,  1478. 
transferred  to  and  from,  555,  557,  567,  1420. 


1628 


INDEX. 


HOSPITAL  CORPS^Continued. 
Hospital  service  performed  by,  1420. 
Number  of  enlisted  men  increased,  1416. 
Organization;  enlistments,  appointments  and  promo- 
tions: pay,  duties,  etc.,  1262,  1263,  1419,  1420. 
Part  of  Na\Tr  Medical  Department,  1420. 
Pay,  847. 
HOSPITALS: 

See  Naval  hospitals;  Naval  hospital  fund;  St.  Elizabeths 

Hospital. 
General  provisions  relating  to,  1159-1163. 
Insane;  St.  Elizabeths,  in  the  District  of  Columbia, 

1161-1163. 
Ration  allowance  of  inmates,  898. 
Treatment  of  men  after  expiration  of  enlistment,  903. 
furloughed  without  pay,  903. 
HOSPITAL  SmPS: 

Command  by  medical  officers,  703,  785. 
Nurse  Corps,  female,  eligible  for  duty  on,  1303, 1.304. 
HOSPITAL  SUPPLIES: 

Procurement  of,  for  fleets  and  squadrons,  466. 
Purchase  of,  in  excess  of  appropriations,  1116, 1288. 
HOURS : 

Contracts  provisions  relating  to  eight-hour  law,  1370. 
Eight-hour  law,  1117,1219,  1220, 1370. 
Executive  departments,  201,  1220,  1221. 
Suspension  of  eight-hour  law  in  national  emergency, 

1474. 
Work  suspended  by  Executive  order,  782,  783. 
HOUSEHOLD  EFFECTS: 

Transportation  of;  naval  personnel,  1535,  1536. 
HTDROGRAPHIC  OFFICE: 

Attached  to  Bureau  of  Na^-igation,  387, 1236. 
Branch  offices,  388, 1251. 
Detail  ofnaval  officers  to,  389, 1508, 1545. 
Duties  of,  387. 

Naval  Obsers-atory  and,  391. 
Foreign  hydrographic  surveys;  use  of  appropriations; 

report  of  board,  1237. 
General  pro^-isions  relating  to,  387-390. 
Jurisdiction  of,  and  Weather  Bureau,  388. 
Maps,  charts  and  nautical  books:  prepared  and  sold  at 

cost,  390,  1182,  11S4. 
Printing  and  engra^-ing  for,  estimates  to  be  separate 

and  in  detail,  1197. 
Publications;  number  of  copies  to  be  printed,  1238. 
receipts  from,  covered  into  Treasury  as  miscella- 
neous receipts,  1543. 
Purchase  of  plates  and  copyrights  of  maps,  charts,  etc., 

1236,  1237. 
Sale  of  maps,  charts,  nautical  books,  etc.,  390,  1182, 

1184, 1236,  1237, 1543. 
Super%ision  of  branch  offices,  388. 
Wilkes's  Expedition;  plates  loaned  to  Navy  Depart- 
ment, 380. 
HTDROGRAPHIC  SURVEYS: 

Coast  of  United  States:  employment  of  naval  officers, 

1151. 
Foreign,  preparation  and  publication  of;  duties  of 
Secretary  of  the  Na\-y,  1106. 
use  of  appropriations  for,  12.37. 
HTGIEXE  BOARD: 

Interdepartmental,  creation  of,  etc.,  1517, 1518. 
HYPOTHETICAL  QUESTIONS: 

Attorney  General  will  not  answer,  299-301. 
Secretary  of  the  Nax-y  will  not  decide,  349, 350. 
IDIOT: 

Insane  person  or  lunatic  includes,  185. 
ILLEGAL  ACTION: 

Civilliability  of  commanding  officer  for,  1003. 
Congress  may  protect  officers  from  responsibihty  for,  57. 


ILLEGAL  ACTION— Continued. 

Discharge  illegal:  court-martial  sentence  set  aside,  IOCS', 
1009. 

Dismissal  illegal;  revocation  of,  1011. 

Examinations  for  promotion,  616. 

President's  action  on  retiring  board:  effect,  96>t,  969. 

Responsiliility  of  heads  of  departments  for,  7s. 
•  of  officers  for,  350,  351,  1003. 

Retirement  illegal :  revocation  of ,  596 . 
statusof  officer,  641. 

Retirement  of  marine  officer  on  furlough  pay,  62!. 
of  naval  officer  invalid,  587. 
ILLEGAL  ORDERS: 

See  Orders. 

Subordinate  not  bound  to  obey,  352. 
ILLUSTRATIONS : 

Restrictions  on;  annual  reports  and  other  publications, 
1239,  1284. 
LVnnGRATIOX: 

Naval  forces  employed  in  enforcing  laws,  1081. 
nOIUNHTY: 

Member  of  Congress,  33. 
OIPARTIAL  TRIAL: 

Right  ofaccused,  129,  131. 
OIPORTS: 

Coal  for  Na\-y,  subject  to  duty,  1408. 

Dutiable  goods  in  naval  vessel,  989. 

Foreign  war  material  for  Na^-y>  free  of  duty,  1396. 

Lottery  tickets,  etc.,  1.346,  1347. 

Obscene  books,  etc.,  1-347. 
EMPRIS  ON'^IENT : 

See  Arrest;  Hard  labor;  Penitentiaries;  Prisoners;  Prisons. 

Beyond  term  of  enlistment,  1064. 

Courts-martial  authorized  to  adjudge,  990. 

Midshipmen,  for  brutal  or  cruel  hazing,  1287. 

Naval  officers  dropped  from  rolls  during,  1503. 
prisoners;  allowances  to  during,  1310,  1311. 

Place  of,  designated  by  renewing  authority,  court- 
martial  cases,  1064. 

Sentence  to,  until  payment  of  fine,  1063, 1064. 

Witnesses:  to  insure  appearance,  425,  426. 
OIPRO  VEMENTS : 

Cash  rewards  to  ci^^l  employees  for  suggesting,  1514. 

Erected  on  lands  leased  by  Navy;  property  of  lessor. 
1508. 

Jurisdiction  over  lands  on  which  erected,  284. 
INADEQUATE: 

See  Sentence. 
INAPTITUDE: 

Discharge  of  enUsted  men  for;  refund  of  enlistment 
bounty,  1292, 1294,  1298. 
INCAPACITY: 

Definition  of,  598. 

Retirement,  603. 
INCEST: 

Definition  and  punishment,  1354. 
INCIDENT  OF  THE  SERMCE: 

See  Line  of  duty. 

Incapacity  due  to;  retirement,  603. 

Line  of  duty  synonymous  with,  005. 

Retirement,  617. 

burden  of  proof,  915,  916. 

Retirement,  Marine  Corps,  964. 
staff  officers:  rank,  687. 
INCO>IE  TAX  RETURNS: 

Oaths  to,  executed  before  naval  officers,  218, 
INCOMPATIBLE  OFFICES: 

Definition,  1069. 

Naval  officer  and  draftsman  in  Hydrographic  Office, 
389. 

Vacancy  created  by  acceptance  of,  215,  989. 


1629 


INDEX. 


INCOMPKTEXCY: 

Summary  court-martial  may  disrate  for,  1007. 
INCREASE  OF  THE  NAVY: 

Equipment  outfits  chargeaVile  to  "Increase  of  the 
Navy,  construction  and  machinery, "  1108. 
INCRIMINATIOX: 

.^ee  Self-crimination. 
INDEBTEDNESS: 

.\rrest  for;  marines  exempt  from,  9.35. 
Conduct  unbecominK  an  officer,  025,  999, 
Enlisted  man;  discharge  not  delayed  for,  560. 
attachment  of  wages,  .'i7^,  574. 
effect  of  discharge,  567. 
transferred  from  Army  to  the  Navy  or  Marine 

Corps,  555. 
travel  allowance  on  discharge,  regardless  of,  876. 
Officer  found  not  morally  qualified  for  promotion  be- 
cause of,  624,  625. 
Previous  enlistment,  245. 

Private,  United  States  not  collecting  agency,  199. 
Suit  by  United  States  to  recover,  1072. 
Witliholding  pay  of  delinquent  officer,  1072. 
INDECENT: 

See  Obscene. 
INDEMNITY: 

Enlisted  men,  for  eflects  lost  on  vessels,  1106. 
INDEX: 

Contracts;  kept  by  returns  office,  398. 
Public  documents,  to  be  published,  1234. 
INDIANHEAD: 

Jurisdiction  of  United  States  and  Maryland,  294. 
INDIANS: 

Citizenship  of,  137. 
IN'EFFICIENCY: 

Civil  establishment;  annual  report  of,   to  Congress, 

1204. 
Civil    establishment;  dismissals,  1383. 
Culpable,    in    performance    of    duties;  punishment, 

Na-\T.  9S4. 

Summary  court-martial  may  disrate  for,  1007. 
INFAMOUS: 

Crimes,  118. 

Punishments,  118, 134. 
INFERIOR: 

Officers;  constitutional  provision  construed,  89-90. 

Petty  officer  entitled  to  obedience  from,  525. 
INFLUENCING: 

Legislation;  punishment,  1527. 
INFORMATION: 

Appropriation  for  obtaining,  at  home  and  abroad; 
accounting  for  expenditures,  1417. 
INHABITANTS: 

See  Natives. 

Foreign    countries;  claims    for    damages    caused    by 
American  forces,  1504,  1508. 

Insular  possessions,  status  of,  113. 

Offenses  against,  on  shore;  punishment,  Navy,  985. 
INJUNCTION: 

To  prevent  dismissal,  99,  338. 
INJURY': 

See  Courts  of  inquiry;  Death;  Disability;  Line  of  duty; 
Retirement;   Veterans;  War  risk  act. 

Absence  due  to,  caused  by  misconduct,  825,  1436. 

Compensation  for,  naval  personnel,  1498-1501. 

Defined  to  include  disease,  1496. 
INLAND  WATERS: 

See  Regattas. 

Rules  for  preventing  collision,  etc.,  1246,  1247,  1251- 
1201,  1.356-1358. 


INQUESTS: 

-Vutopsics;  authority  of  naval  medical  officers  to  per- 
form, 400,  401. 
Coroners;  right  to  hold  on  United  States  reservations, 
293. 
INQUIRIES: 

See  Board  of  inquiry;  Courts  of  inquiry. 
Expenses  of,  not  allowed  without  special  appropria- 
tion, 1105,  1316. 
INSANE: 

Defense  before  court-martial,  10.30,  1031. 

Defined,  185. 

Enlistment  prohibited,  551,  994. 

Interned  persons  and  prisoners  of  war;  admission  to 

St.  Elizabeths  Hospital,  1417,  1418. 
Naval  personnel,  commitment  to  hospitals,  788,  789. 
Pay  and  expenses  of,  confined  in  institutions,  788. 
St.  Elizabeths  Hospital  in  the  District  of  Columbia 
1161-1163. 
INSIGNIA; 

Acceptance  of,  from  foreign  State,  76. 
INSPECTION: 

Accounts,  by  general  inspector  of  Supply  Corps,  1304. 
Provisions  on  naval  vessels;   duties  of  commanding 
officer,  995. 
INSPECTION  AND  SURVEY: 

Naval  vessels;  board  of  naval  officers,  1190. 
INSPECTORS: 

Fuel  purchased  for  public  service,  1110. 
INSTITUTIONS: 

Detail  of  naval  officers  to  colleges,  etc.,  435. 
INSTRUCTORS: 

Naval   Academy;  number  and   compensation,    1457, 
1535. 
INSULAR  FORCE: 

Enlisted  men,  pay  of,  863,  864. 
status  of,  538. 
INSULAR  POSSESSIONS: 

Additional  pay  fot  shore  duty,  1275. 
Employees,  782. 

leave  of  absence  cumulative,  1417. 
pay  for  travel  to  and  from  United  States,  1278. 
pay  on  holidays;  regulations  governing,  787. 
sale  of  stores  to,  1313,  1314. 
Status  of.  111. 

inhabitants,  113. 
Virgin  Islands;  temporary  government,  1470-1472. 
INSURANCE: 

See  liar  risk  act. 
INSURRECTION: 

Enlisting  to  serve  against  United  States,  1318. 
General  provisions  relating  to,  1169-1172. 
Inciting  rebellion,  etc.,  1317. 
Mailing  matter  urging,  1489,  1490. 
Philippine;  whether  state  of  war,  272. 
Use  of  militia  to  suppress,  69. 
INTELLIGENCE: 

Giving  to  enemy  or  rebel;  punishment  for,  Navy,  979. 
INTENT: 

Bonds;  construction  of,  481. 

Desertion;  to  remain  permanently  absent;  commis- 
sioned officer,  989. 
Statutes;  construction  of,  10. 
INTERCOURSE: 

With  enemy  or  rebel,  punishment  for,  979. 
delivering  seducing  messages,  etc.,  981. 
INTERDEPARTMENTAL  SOCIAL  HYGIENE 
BOARD: 
Creation  of,  etc.,  1517,  1518. 


1630 


INDEX. 


INTEREST: 

Pay,  miscellaneous,  credited  with,  1222. 
INTERIOR  DEPARTMENT: 

Copies  of  contracts  to  be  filed  in  returns  office  of,  1118, 

1119. 
General  provisions  relating  to,  395-398. 
Jurisdiction  of  Commissioner  of  Pensions  and  Secre- 
tary of  the  Navy,  1155. 
Returns  office  estabUshed  in,  397. 
INTERNATIONAL: 

Agreement;  marking  and  removal   of  derelicts  and 

\VTecks,  1223. 
Law;  jurisdiction  of  courts,  105. 

otienses  against,  power  of  Congress,  38. 
Helations;  enforcement  of  neutrality;  espionage,  etc., 

1482-1490. 
Rules  for  preventing  coUision  at  sea,  1204-1215. 
INTERNMENT: 

Insane;  admission  to  St.   Elizabeths  Hospital,  1417, 

1418. 
Naval  officers  in  neutral  country;  pay  and  allow- 
ances during,  892. 
INTERPRETATION  OF  STATUTES: 
See  Statutes. 
General  principles,  9-24. 
INTERPRETER: 

Not  a  witness,  412. 
INTERROGATORIES: 
See  Depositions. 
Depositions,  219. 
INTOXICANTS: 

See  Alcoholic  liquors;  Drunkenness. 
Absence  from  duty  caused  bj-;  naval  personnel,  1436. 
Board  of  Visitors,  Naval  Academy;  expenses,  1197. 
Distilled  spirits  on  naval  vessels,  admitted  for  medical 

purposes,  989. 
Mailing  of;  punishment,  1342,  1343. 
Midshipmen  to  be  instructed  as  to  the  nature  and 

effects  of,  1194,  1195. 
Prohibition  of,  near  miUtary  camps,  and  to  persons  in 
uniform,  etc.,  1477,  1478. 
INTOXICATED  PERSONS: 
Enlistment  prohibited,  551. 
Penalty  for  enlistment  of,  994. 
Punishable  by  naval  court-martial,  984. 
INVENTIONS: 
See  Patents. 

Applications  for  patents;  Government  interested,  1165. 
Patents  obtained  by  officers  of  United  States,  1192, 

1193. 
PubUcation  of,  in  time  of  war,  restricted,  1494,  1501, 

1502. 
Secretary  of  the  Interior,  duties  relating  to,  395. 
Use  of,  by  Government,  1192,  1193,  1494. 
INVENTORIES: 

Department  property,  records  to  be  kept  of,  227. 
INVESTIGATIONS : 

Absence  from  duty  of  naval  personnel;  cause  of,  1436. 
Boards  may  administer  oaths,  217. 
Expenses  of,  not  allowed,  without  special  appropria- 
tion, 1105,  1316. 
Officers  appointed  to  conduct,  may  administer  oaths, 
217. 
INVOLUNTARY  SERVITUDE: 

Military  and  naval  enlistments  not  prohibited,  136. 
IRONS: 

Abolished  in  Navy,  except  by  sentence  of  general 
court-martial,  etc.,  1309. 
IRREGULARITIES: 
Acquiescence  in,  604. 
Court-martial,  1020,  1033, 1045-1047. 


IRREGULARITIES— Continued. 

Examinations  for  promotion,  ell'ect  of,  596. 
Examinations  for  promotion;  fatally  defective,  723,  72S. 
Fatal  defects  distinguished;  court-martial  proceedings, 

1045-1047. 
Investigation  of,  217. 

President's  action  on  retiring  board,  968,  969. 
Retirement  proceedings,  601,  602,  911,  912. 
IRRESISTIBLE  IMPULSE: 

Defense  of,  before  court-martial,  1031. 
JAPANESE: 

Citizensliip  of,  139. 

Naval  forces  employed  in  preventing  immigration 
of,  1081. 
JEOP.4RDT: 

Constitutional  provision  applies  to  Navy,  69. 
Court-martial  proceedings  bar  to  trial  by  civil  court, 

1047. 
Defined,  119. 

New  trial  by  court-martial,  1047. 
Protection  against  double,  119-121. 
Punishment  without  court-martial  not  bar  to  trial 
1004. 
JEWELS: 

Transporting  on  naval  vessel,  985. 
JOINDER: 

Offenses;  charges  and  specifications,  1028. 
JOINT  FORCES: 

Army  and  Na\'y;  command  of,  443,  444,  668. 
JOURNALS: 

Of  Congress;  extracts  evidence  in  court,  428. 
JUDGE  ADVOCATE: 

Accused  entitled  to  obtain  opinion  from,  133. 

Acting  as  counsel  for  accused,  133. 

Admissions  by;  what  absent  witness  would  testify, 

1055. 
Authorized  to  administer  oaths  for  purposes  of  naval 

administration,  1240. 
Counsel  furnished  by  Department  of  Justice  to  assist, 

222,  324. 
Court  of  inquiry,  1055.  ' 

Duties,  1019.  : 

Judgment  signed  by,  1034.  ' 

Oath  of,  1019.  ■ 

Presence  in  closed  court,  128. 
Quahflcation  for  service  as,  222,  223,  1019,  1020. 
ResponsibiUty  for  truth  of  record,  1034. 
JUDGE  ADVOCATE  GENERAL: 

Army;  jurisdiction  of  court-martial  over,  62,  366. 

suspension  of;  how  duties  temporarily  performed, 
215. 
Assistant  to,  detailed  from  line  of  Navy  or  Marine 

Corps,  1418. 
Deck-court  records  to  be  reviewed  by,  1309. 
Navy;  coimsel  for  examining  board  detailed  by,  723. 
court-martial  proceedings;  power  to  revise,  con- 
strued, 1043. 
duties,  321,  359.  » 

questions  of  law  before  examining  boards,  712. 
office  not  different  from  bureau,  359. 
opinion  must  accompany  request  for  Attorney- 
General's  opinion,  309,  321. 
pay,  371,  1512. 

rank  on  retirement,  372-376,  673. 
rank,  pay,  and  allowances,  1512. 
rations  not  allowed  to,  897. 
retirement  does  not  vacate  office,  376. 
soUcitor  in  office  of;  investigation  conducted  by,  218. 
sued  by  officer  for  damages,  55. 
Supreme  Court  reports  and  digests  furnished  to, 
1365. 


1631 


IXDEX. 


JUDGE  ADVOCATE  GENERAL— Continued. 

Navy;  tcmporarj'  rlerks  in  ofllce  of,  during  sessions  of 

Congress,  Ml. 
Oflicc  created;  to  be  in  Navy  Department;  duties; 

rank  and  pay;  appointment,  USO,  1187. 
Pay  after  retirement,  377. 
JUD(;MENT: 
See  Discretion. 

Naval  court-martial;  authenticated  by  signatures  of 
members  and  judge  advocate,  1034. 
JUDICIAL: 

Code,  1HC>0-I36r>. 

Court  of  inquiry  not,  105.'). 

Notice;  authority  of  public  officers,  213. 

State  laws,  429,  430. 
Power;  constitutional  provision  relating  to,  104. 
Questions;  .\ttorney  (ieneral  will  not  answer,  306. 
System;  courts-martial  not  part  of,  37. 
explanation  of,  37. 
JUDICIARY: 

(ieneral  provisions  relating  to,  399-432. 
JURISDICTION: 

See  Accnunti/ig  officers;  Courts-martial. 
Accounting  officers  and  courts,  235. 
and  heads  of  departments,  2.36-244. 
and  Secretary  of  the  Navy,  198,  268,  272,  273,  566, 
828,  829,  9a3,  1315. 
responsibility  for  loss  of  fimds,  1527,  1528. 
vaUdity  of  regulation,  838,  839. 
cause  of  incapacity,  retired  officer,  605. 
ships'  stores  profits,  13.59. 
Army  and  Navy  aviation,  defmed,  1554. 
Army,  over  naval  personnel,  1544. 
Attorney  General  and  Comptroller  of  the  Treasury, 
311-320. 
opinions  binding  on  accounting  officers,  318. 
supervision  of  litigation  involving  Government, 

281. 
will  render  opinion  where  jurisdiction  doubtful, 
321. 
Civil  authorities,  persons  in  naval  service,  65. 

courts  with  relation  to  courts-martial,  60,  128,  401- 
403,  1001,  1047-1051. 
Claims  for  effects  lost  in  naval  service,  271. 
Coast  and  Geodetic  Survey,  operating  with  Navy  dur- 
ing war  or  emergency,  1479,  1480. 
Coast  G.uard;  laws  to  which  subject,  1455. 
Commissioner  of  Pensions  and  Secretary  of  the  Navy, 

396,  397,  1155. 
Consent  can  not  confer  on  court,  125,  977,  1033. 
Consular  and  military  authorities,  576. 
Coroners,  United  States  reservations,  293. 
Courts  and  executive  departments,  345-348. 
Courts-martial;  change  of  status  does  not  divest,  403. 
enlistment  expired,  558. 
exceeding,  responsibility  for,  54. 
olTenses,  05. 
persons  subject  to,  62. 
Discharged  enlisted  men,  pending  reenhstment;  sub- 
ject to  regulations,  etc.,  1201, 1202. 
Enlisted  men  subject  to  Navy  laws  until  discharged, 

555,  .556. 
Examining  boards;  courts  can  not  review,  728. 
Foreign  nations  over  United  States  vessels,  67. 
Homicide  on  naval  vessel,  66,  67. 
Hydrngraphic  Office  and  Weather  Bureau,  388.  ■ 
International  law  questions,  105. 
l,and  purchased  by  United  States,  282. 
Lighthouse  Service  during  war  or  emergency,  1456, 
1457. 


JURISDICTION-Continued. 

Marines  embarked  on  naval  vessel,  1442. 
Militia,  Federal  and  State,  71. 
Murder  committed  on  naval  vessel,  983. 
Naval  reservations,  292-294. 

Naval  Reserve  Force;  laws  and  regulations  of  Na\-y 
applicable  to,  1446,  1447,  1451,  1511. 
while  wearing  imiforra,  but  not  in  active  ser\'ic6 
1511. 
Navy  medical  personnel  detailed  with  marines  de- 
tached for  service  with  .Vrmy,  1421. 
OlTenses  violating  both  miUtary  and  civil  law,  120. 
Political  questions,  104. 
Public  Health  Service  in  time  of  war,  1491. 
Public  officer  exceeding;  violation  of  oath,  .320. 
Responsibility  of  executive  officers  exceeding,  78. 
Secretary  of  the  Interior  and  Secretary  of  the  Navy; 

contracts,  397. 
State  and  Federal  authorities,  47,  51. 
State  authorities,  to  require  health  reports  from  naval 

officers,  49,  50,  461. 
Summary  courts-martial,  1005. 

United  States,  exclusive,  72,  282-284,  1348-1351,  1353, 
1354. 
property  purchased  in  States,  289-292. 
reservations  in  Maryland,  293-294. 
War,  discipline  of  Army,  42. 

military  power  over  civilians,  44. 
JURY: 

Court-martial  compared  to,  1039,  1055. 
Court  of  inquiry  analogous  to  grand  jury,  1055. 
Not  required  in  Navy,  59,  68. 
Trial  by,  in  criminal  cases,  129,  130. 
JUSTICE: 

Administration  of,  Navy,  1308-1312;  1441,  1442. 
KEEPER  OF  THE  MAGAZINE: 

Office  may  be  abolished  at  navy  yards,  533. 
KING: 

Acceptance  of  presents  from,  75. 
LABORERS: 

See  Civil  establishment;  Pay  of  civil  establishment. 
Appointment,  number,  pay,  etc.,  204,  205,  209,  381. 
Eight-hour  law  applicable  to,  1117. 
contract  provisions,  1370,  1371. 
Estimates  and  appropriations  for.  Navy,  1103. 
Material  men  and,  contracts  for  public  works,  1227, 

1228. 
Navy  yards;  employment  of,  780. 
Not  to  be  used  for  private  purposes,  702. 
LAND  AND  NAVAL  FORCES: 

See  Army;  Marine  Corps;  Naval  forces. 
Congress  to  make  regulations  for,  58. 
Defined,  58. 
LAND  GRANT: 

Railroads,  1179, 1180. 
LANDS: 

See  Condemnation:  Public  properly. 

Attorney  General  to  report  upon  title  and  jurisdiction, 

282. 
Condemnation  proceedings,  1199,  1518. 
Condemnation  proceedings,  for  military  purposes,  1490, 

1491. 
Leases  granted  by  Navy;   revocable;  term  of,  1419. 
Leased  to  Na^'y;  improvements  on  to  become  property 

of  lessor,  1508. 
Military  reservations,  1087. 

Oil;  petroleum  reserves,  etc.;  leases  of,  1532,  1533,  1545. 
Public;  general  provisions  relating  to,  1083-1089. 
Purchase  of,  for  United  States;  releases  obtained  by 
President,  1121. 


1632 


IXDEX. 


LANDS— Continued. 

Sale  of,  by  executive  departments,  1516. 

Sites  for  Na\-y  hospitals;  Secretary  may  procure,  1159, 

1160. 
Title  to  and  jurisdiction  over,  282. 
Transfers  between  Army  and  'Sa.yy,  1528. 
to  jurisdiction  of  Navy  Department,  1457. 
to  Public  Health  Service,  1526, 1559. 
JC4ANDSMEN: 

Marines  may  be  substituted  for,  955. 
I4ANGUAGE: 

Disrespectful,  to  superior  officer,  Navy,  984. 
LARCENY: 

Arms,  stores,  money,  etc.,  furnished  for  naval  service, 

990,  1325. 
Books,  maps,  records,  etc.,  1335,  1.336. 
Checks  for  public  money;  duplicates  issued,  1098,  1099. 
Honorable  discharge  blanks,  509. 
Mail  matter,  1338. 
Money  or  property  intended   for  naval  service,  990, 

1325. 
Personal  property  of  United  States,  1328. 
Post  office  property,  1337. 
Private  property,  1350. 
Public  money,  property,  records,  etc.,  1328. 
Punishable  by  naval  court-martial,  984,  990. 
Punishment  for,  1324. 
Written  instruments:  value  of,  1350. 
LAUNDRIES: 

Marine  Corps;  appropriations  credited  with  receipts 
from,  1531. 
LAW: 

See  Mistale  of  law. 

AccountLag  officers'  interpretation  not  binding,  239. 

Amendments  to;  Attorney  General  will  not  advise  as 

to  desirability  of,  299. 
Conflict  of;  bonds,  490-491. 
Contracts  terminated  by  operation  of:  payment  of 

reservation,  1115,  1116. 
Decisions  of  courts  and  law  officers,  effect  of,  6. 
Foreign;  Attorney  General  will  not  render  opinion  con- 
cerning, 299. 
Ignorance  of,  477. 
International,  oilenses  against,  38. 
Judicial  notice  of  State  laws,  429. 
Maintaining,  by  use  of  vessel  loaned  to  naval  miUtia, 

114. 
MUitia  may  be  used  to  execute,  69. 
Naval  forces  employed  in  enforcement  of,  1081,  1088, 

1130, 1131, 1169,  12S9,  1290,  1300,  1301,  1387. 
Na^•y;  appUcable  to  Marine  Corps,  962,  967,  968. 

where  found,  1. 
President's  duty  to  see  that  laws  are  faithfully  exe- 
cuted, 101. 
Questions  arising  before  examining  boards,  712. 

arisi-ag  in  Navy  Department;  .Vttorney  General  to 

dispose  of,  321. 
decided  by  courts-martial,  1024,  1045. 
Regulations  have  force  of,  197. 

State,  appUcable  in  Federal  reservations;  criminal  code, 
1351. 
laws  and  records;  e\'idence  of,  429,  4.30. 
United  States,  enforcement  of,  abroad,  70. 
LAW  BOOKS: 

Restrictions  on  purchase  of,  1261. 
LE-^SES: 

Land-  fur  use  of  Navy;  improvements  to  become  prop- 
erty of  lessor,  1508. 
Naval  lands;  revocable;  term  of,  1419. 
Naval  petroleum  reserves,  etc.,  1532,  1533,  1545. 


LEAVE  OF  ABSENCE: 

See  Absence;  Absence  without  leave;  Furlough;  Liberty; 
Line  of  duty;  Pay  of  civil  establishment;  Pay  of  Naval 
Establishment. 
Can  not  be  forced  on  officer  or  enlisted  man,  574. 
Ci^'il  employees:  belonging  to  National  Guard,  1412. 
disabled  in  line  of  duty,  1468. 
employment  of  substitute,  207. 
executive  departments,  1221,  1263. 
insular  possessions;  cumulative,  1417. 
members  of  Officers'  Reserve  Corps,  1476. 
na^'y  yards  and  stations,  781,  1464. 
pay  for  services  during,  1390. 
Sundays  and  holidays  excluded,  1263. 
Commanding  officers  to  grant,  574. 
Enlisted  men,  Navy;  pay  during,  869. 

on  clerical  duty  at  marine  headciuarters,  1474. 
Liberty  on  shore;  deprivation  of  by  commanding  offi- 
cer as  punishment,  1002. 
on  foreign  station;  deprivation  of  by  summary 
court  martial,  1000. 
Medical  expenses,  enlisted  men,  during,  903. 
Midshipmen,  764. 
Nurse  Corps,  female,  807. 
Officers,  Marine  Corps;  pay,  941. 

Na^'y,  appointed  to  office  in  Brazil,  1399. 
pay,  S23-S25. 
Retired  officers,  659. 

Sickness;  medical  expenses  of  officer,  904. 
Sundays  and  holidays  excluded  from,  employees  in 

departments,  1263. 
Suspension  of  officer  by  court-martial  sentence,  equiva- 
lent to,  584. 
Travel  of  officer,  to  and  from;  mUeage,  843,  844. 
Warrant  officers,  1430. 
Witnesses  in  Government  service,  413,  417. 
LEG.IL  REPRESENT.\TI\^S: 
See  Death;  Effects. 

Effects  of  deceased  persons  on  vessels  to  be  secured  for 
995. 
LEGAL  SERVICES: 

See  Attorney  General;  Counsel;  Department  of  Justice. 
Attorney  General  to  pro^ide  for  Na\-y  Department, 

321. 
Department  of  Justice  to  furnish  all  required  by  de- 
partments, 323. 
LEGISLATION: 

Delegation  of  power  by  Congress,  59,  195,  784,  787. 
Influencing;    restrictions   on   use   of  appropriations; 

punishment,  1527. 
Powers  of  Congress,  30. 
Procuring  by  private  soUcitation,  30. 
LEGISL.ATURE: 

State;  consent  to  purchase  of  land  by  United  States, 
i  282,283. 

LENGTH  OF  SERVICE: 

See  Pay  of  Naval  EstabUshmcnt;  Retirement:  Service. 
Army  and  Navy  service  credited  to  naval  officers,  1191. 
Army  cadet  service  not  credited  to  naval  officers,  1390. 
Computation  of,  for  pay  and  retirement:  officers  of  the 

Na-i-y,  587-589,  1191,  1390,  1535,  1550. 
Constructive,  credited  to  naval  officers  for  pay  pur- 
poses, 1268. 
for  precedence,  691,  694. 
Date  service  commences,  838. 

Dental  officers  who  have  gained  or  lost  numbers,  1421. 
Enlisted  men;  how  computed  for  retirement,  1269, 
1270,  1291,  1299. 
transferred  to  Naval  Reserve  Force;  how  com- 
puted, 1449. 


1633 


INDEX. 


LENGTH  OF  SERVICE— Continued. 
Marine  olTicers.  computation  of,  969. 

credited  with,  927. 
Midshipman  service  not  credited  to  Army  officers,  1388. 

not  credited  to  naval  oflicers,  1.390. 
Naval  Academy  band  members  credited  with  prior 

service,  1.355. 
Naval  Reser\-e  Force,  computation  of  service,  1509, 

1510. 
Oflicers  advanced  or  losing  numbers,  ellect  of,  691 ,  1421. 

transferred  to  diiTerent  branch  of  service,  1249. 
Pay  of  enlisted  men,  Navy,  increased  for,  862,  867,  868, 
8S.3-891. 
officers  of  Navy,  increased  for,  K21-82;?,  1.301,  1302. 
retired  officers,  908,  909. 
Precedence;  computation  of  service  for,  691. 
line  and  staCf  officers,  689-695. 
of  officers.  Army,  Navy  and  Marine  Corps,  having 
same  date,  668. 
Promotion  by  selection;  constructive  service  credited, 

694. 
Retirement;  cliiefs  of  bureaus,  672,  673. 
Marine  Corps,  964. 
naval  officers  for,  1303. 
stafi  officers,  rank,  685. 
LIBEL: 

'^ee  Privileged  communications. 
Indecent  matter  bn  wrappers  of  mail,  etc.,  1341. 
Prize  property;  proceedings,  1139. 
Records  furnished  for  use  in  civil  suit,  356,  357. 
Responsibility  of  officers  for  official  acts,  350,  351. 
LIBERTY: 

See  Leave  of  absence;  Line  of  duty. 

Commanding  officers  to  grant  to  faithful  and  obedient, 

574. 
Definition  of;  due  process  of  law,  124. 
Deprivation  of:  persons  in  naval  service,  1.36, 1002, 1006. 
LIBERTY  BONDS: 

Accepted  in  lieu  of  sureties,  1523,  1524. 
LIBRARIES: 

Designated  depositories  for  Government  publications; 
executive  departments.  Naval  Academj-,  etc.,  1240. 
LIBRARY  OF  CONGRESS: 

Departmental  books,  maps,  etc.,  transferred  to,  1280. 
publications  furnished  to,  1273, 1274. 
LICENSES: 

Chauffeur  of  Government  automobile,  48. 
Medical;  Hospital  Corps  member  arrested  for  prac- 
tising without,  400. 
Naval  officers  required  to  have,  when  serving  as  officer 

of  private  vessel,  1135,  1136. 
Na\'igation  requirements  not  applicable  to  officers  of 

public  vessels,  11-35,  1136. 
Officers  of  merchant  vessels;  duties  required  of  in  time 

of  war,  1249. 
Use  of  public  lands,  291 . 
LIEUTENANT  COLONELS: 
Commanders  rank  with,  602. 
Number  of.  Marine  Corps,  1458. 
LIEUTENANT  COM3IANDERS: 
Pay,  792,  798,  1301,  1302. 

Promotion  by  selection  to  commander,  1430, 1513. 
Proportion  of  in  line,  1425. 
Rank  with  majors,  662. 

Retirement  of,  for  purpose  of  creating  vacancies,  1265. 
LIEUTENANT  GENERALS: 
Vice  admirals  rank  with,  602. 

to  have  same  allowances  as,  1512. 
LIEUTENANTS  (JUNIOR  GRADE): 
Acting  ensigns  commissioned  as,  1436. 


LIEUTENANTS  (JUNIOR  (JRADE)— rontinuc.l. 
-Vssistant  civil  engineers  to  take  rank  and  precedence 
with,  1474. 
surgeons  to  rank  with  on  original  appointment, 
1426. 
Commissioned  warrant  officers  may  receive  pay  and 
allowances  of,  1429,  HM. 
retired,  allowed  pay  of,  1.503,  l.")04. 
Ensigns  promoted  to,  1204. 
Examinations  reiiuired  for  promotion  to,  1190. 
Grade  of  master  changed  to,  448, 1190. 
Pay,  792,  799,  1.301. 

Promotion  of  ensigns  to;  examinations  required,  1190. 
length  of  service  requirement.  1204. 
length  of  service  requirement  suspended,  1551. 
Promotion  to  lieutenant;  engineering  duty,  1436. 
length  of  service,  1425. 

length  of  ser\'ice  requirement  suspended,  1551. 
Proportion  of,  in  line,  1425. 
Rank  with  first  lieutenants,  662. 
Warrant  officer,  retired,  allowed  pay  of,  1503, 1504. 
LIEUTENANTS,  NAVY: 

See  First  lieutenants:  Lieutenants  {junior  grade);  Second 

lieutenants. 
Commissioned  warrant  officers  may  receive  pay  and 
allowances  of,  1429,  14.30. 
retired,  allowed  pay  of,  1503,  1.504. 
Examination  required  for  promotion  to,  1190. 
I^ength  of  service  requirement  for  promotion  to,  1425. 

requirement  suspended,  1.551. 
Pay,  792,  799,  1301. 

Promotion  of  lieutenants  (junior  grade)  to,  1190,  1425. 
Proportion  of  in  line,  1425. 
Rank  with  captain.  Army,  662. 
Warrant  officers,  retired,  allowed  pay  of,  1503,  1504. 
LIFE  SAVING  DRESS: 

Use  of  in  the  Na\'y,  1191. 
LIFE-SAVING  SERVICE: 

Consolidated  with  Revenue  Cutter  Service  under  ntme 
of  Coast  Guard,  1400. 
LIGHT: 

See  Heat  and  light. 
LIGHTHOUSE  SERVICE: 

Commissioned  officers  of,  eligible  for  membership  on 

naval  courts-martial,  1494. 
Expenses  defrayed  from  naval  appropriations,  1456, 

14.57. 
Naval  officers  not  allowed  additional  compensation 

under  detail  to,  1149. 
Status  and  duties  during  war  or  emergency,  1456, 1457. 
Traveling  expenses,  naval  officers  detailed  to,  1298. 
LIGHT  LISTS: 

Publication  by  Hydrographic  Office;  number  of  copies 
printed,  1238. 
LIMBS: 

Artificial;  allowance  to  disal)led  personnel,  1150,  1157, 
1181,  1217. 
LEVIITATION  OF  PUNISH3IENTS: 

Court-martial  sentences  in  time  of  peace,  1062-1064. 
LIMITATIONS: 

See  Statute  of  limitations. 
LINE  OF  DUTY: 

Burden  of  proof;  officer  before  retiring  board,  915,  916. 
Compensation  for  death  or  disability,  naval  personnel, 

1498-1501 . 
Decisions  relating  to,  605-616. 
Defined,  605. 

by  Court  of  Claims,  610. 
Discharge  for  disability  not  incurred  in;  refund  of  en- 
listment bounty,  1298. 


1634 


INDEX. 


UNE  OF  DUTY— Continued. 
Evidence,  611,612. 
E^^dence;  burden  of  proof,  612. 

medical  experts,  611. 
Incident  of  the  service  sjTionjmious  with,  605. 
Loss  or  deficiency  of  funds  incurred  by  NaAT  (dis- 
bursing officers  in,  1527,  1528. 
Presumption  in  favor  of,  611. 
Prisoners,  613,  614. 

Promotion  of  officer  receiving  wounds  in,  709. 
Rank  on  retirement  of  marine  officer  incapacitated 
for  promotion,  965. 
naval  officer  incapacitated  for  promotion,  1366. 
Refusal  of  officer  to  submit  to  surgical  operation,  615, 

616. 
Specific  cases  involving  question  of,  612. 
Suicide;  evidence  in  cases  of,  612. 
questions  relating  to,  614,  615. 
Wounds  received  in:  promotion  not  barred  by,  709. 
LINE  OFFICERS: 

Age  for  promotion  by  selection,  1434. 

Aid  or  executive  of  commanding  officer,  669. 

Appointed  from  graduates  of  Naval  Academy,  765- 

768,  11S8,  1189,  1193,  1392. 
Chiefs  of  bureaus,  appointments,  378. 
Commodore  omitted  from  grades  of,  1264. 
Construction  officers  may  exercise  command  over,  508, 

1359. 
Definition,  448. 

Detailed  as  assistant  to  chief.  Bureau  of  Ordnance,  1261. 
as  assistant  to  Judge  Advocate  General,  1418. 
as  commandant  of  navy  yard,  779. 
as  supervisor  of  New  York  Harbor,  1198,  1199. 
to  duty  under  staff  officers,  1359. 
to  engineering  duty,  1435. 
Distribution  of  in  grades,  1425. 

Duties  not  compatible  with  grades  of  staff  officers,  507. 
Grades  of,  447. 

Marine  Corps;  relation  of  staff  to,  921,  922. 
Midshipmen  appointed  as,  76.5-768, 1188, 1189, 1193,1392. 
Naval  Reserve  Force,  1443. 
Number  of,  450-453, 1424. 

permanent  strength  not  reduced  by  act  of  June  4, 

1920;  1549. 
reservists  on  active  duty  and  temporary  officers 

counted  as  part  of,  1549. 
when  may  be  exceeded,  453. 
Precedence;  date  of  commission,  668. 
with  staff  officers,  689-695. 

with  staff  officers  in  processions,  courts-martial, 
etc.,  704. 
Promotion  by  selection,  14.30-1434. 

by  selection;  time  for  convening  boards,  1.529. 
if  receiN-ing  thanks  of  Congress,  736. 
Retirement,  voluntary,  to  create  vacancies,  1265. 
Sea  ser\-ice  prior  to  promotion,  1434. 
Staff  officers  may  exercise  command  over,  508,  1359. 
Superintendent  of  Naval  Observatory  to  be  detailed 

from,  1276,  1277. 
Transfer  to  Construction  Corps,  1408. 
Vacancies,  insufficient  graduates  from  Naval  Academy, 
707. 
UNE   OF  PROMOTION: 

Retired  officers  withdra\^Ti  from,  654,  655. 
LIQUIDATED  DAMAGES: 

Forfeiture  by  delinquent  contractor,  1111,  1113. 
LIQUORS: 

See  Intoxicants. 

Prohibition  of  alcoholic,  near  military  camps  and  to 
persons  in  uniform,  etc.,  1477,  1478. 


LITIG.\TION: 

Records  of  Na%'y  Department  desired  for  use  in,  424. 
Responsibility  of  officers  for  official  acts,  350,  351. 
LOANS: 

See  PuWic  property. 

Public  moneys,  prohibited,  109S,  1329,  1344. 
Supply  officers  forbidden  to  make,  497. 
LOG: 

Punishments  inflicted  by  commander  of  naval  vessel 
to  be  entered  in,  1002. 
LONDON  FISCAL  AGENTS: 

Receipts  for  interest  on  account  of  the  Navy  Depart- 
ment with;  how  credited,  1222. 
LONGE\lTY: 

See  Length  of  service;  Pay  of  Naval  Establishment. 
LOSS   OF  NUMBERS: 

Continuing  punishment;  remission  of,  1052. 
Dental  officers,  considered  to  have  lost  service  ac- 
cordingly, 1421. 
Failure  to  qualify  for  promotion,  729-734,  1463. 
Officer  sentenced  to,  pending  promotion;  effect  of,  652. 
Precedence;  effect  of,  691, 1429. 
Remission  of  unexecuted  portion  of  sentence,  669. 
Substituted  for  dismissal,  1053. 
LOSS   OF  PAT: 

Summary  court-martial  may  adjudge,  1007. 
LOST: 

See  Effects;   Vessels  of  the  Navy. 
Discharge;  certificate  in  lieu  of,  1203,  1204. 
Property;  charging  value  to  responsible  individual,  788. 
LOTTERIES: 

Importing  tickets,  etc.,  1346,  1347. 
Mailing  of  circulars,  etc.,  1341,  1342. 
LOWEST  BIDDER: 

See  Contracts. 
LUMP  SUai: 

See  Appropriatiom;   Civil  establishment;  Pay   of  civil 
establishment. 
LU*N.ATIC: 

Defined,  185. 
I>IACHINERY: 

Estimates  and  appropriations  for,  Na-^T,  1103. 
Exchange  of,  in  part  paymet  for  like  articles,  1474. 
MACHINISTS: 

See  Warrant  officers. 

Appointment  of,  as  warrant  officers,  1268. 
MACHINISTS'   MATES: 

Increase  in  pay  of,  1495. 
MAGAZINES: 

Authority  of  law  necessary  for  printing  of,  by  Govern 

ment,  1525. 
Keeper  of;  office  may  be  aboUshed,  533. 
MAIL  CLERKS: 

See  Navy  mail  clerks. 
MAILS: 

Free  transmission,  official  business,  penalty  envelopes, 

1181,  118.5,  1186,  1191,  1291,  1-345. 
Illegal  use  of;  espionage  act,  1489, 1490. 
Offenses  relating  to,  1337-1345. 
MAIL  VESSELS: 

Commandeered  for  use  as  transports  or  cruisers,  1217. 
Construction  of,  subject  to  approval  by  Secretary  of  the 

Navy,  1216. 
Detail  of  naval  officers  for  duty  on,  1217. 
MAINTENANCE: 

Appropriation  for,  Bureau  of  Yards  and  Docks;  use  of, 
1530. 
MAJOR  GENERAL   COMMANDANT: 
Appointment  of,  1392,  14G0. 

Claims  for  reimbursement,  lost  or  damaged  private 
property,  1492-1494. 


1635 


INDEX. 


MAJOR  GENERAL  COniAXDANT-Continued. 
Counted  as  senior  to  colonel  in  making  computations, 

1409. 
Filling  of  temporary  vacancy,  929. 
Major  generals  junior  to,  at  all  times,  1512. 
Rank  of,  928,  1.W2,  1.M2. 

from  which  appointed,  9'29,  UOO. 
Retirement;  active  duty  after,  929. 

how  vacancy  temporarily  filled,  21.5. 
Status  as  additional  number,  929,  1:492. 
Teniu'e  of  office;  appointment:  retirement;  additional 
number  in  grade,  etc.,  1392. 
MAJOR  GENERALS: 

Marine  Corps:  one  permanent  and  one  temporary  au- 
thorized, 1.512. 
Rear  admiraLs  rank  with,  662. 

both  upper  and  lower  half,  665. 
MAJORS: 

Lieutenant  commanders  rank  with,  662. 
Number  of,  Marine  Corps,  1458. 
l\LiLTREATMEXT: 

Of  crew,  by  officers  of  vessel,  1351. 
Of  inhabitants  on  shore:  pimishment.  Navy,  985, 987. 
Of  personnel  of  merchant  vessel  under  convoy,  985. 
Of  persons  on  prize;  punishment,  Na'V'y,  994. 
Of  subordinates;  punishment  for,  in  Navy,  984. 
RLAXDA3IUS: 

Hoard  of  Labor  Employment,  navy  yards,  subject  to, 

7S0. 
Heads  of  departments  subject  to,  79. 
Jurisdiction  of  coiu-ts  over  business  of  departments, 
34.5-348. 
removal  of  employee  by  head  of  department,  338. 
Proceedings  against  accounting  officers,  2.56,  257. 
Sale  of  naval  vessel;  delivery  to  highest  bidder,  778. 
RLAXIFEST  OIPEDIMExf: 

Statute  of  limitations,  10.57,  10.59,  1060,  1062. 
MAXIFOLD  BLAXKS: 

Public  Printer  to  furnish  to  departments,  1278. 
MAXXED: 

Naval  vessels  to  be  manned  as  directed  by  President, 
775. 
MAXSLAUGHTER: 
See  Homicide. 
Attempt  to  commit,  1.349. 
Consular  coiu-t  proceeding  against  naval  personnel 

cliarged  with,  224. 
Definition  and  punishment,  1349. 
Military  guard  charged  with,  403. 
Murder  charged  as,  67. 
Place  where  committed,  1355. 
Punishment  for,  Navy,  998. 
MAXUALS: 

Hydrographic  Office  to  provide,  for  use  by  navigators, 
387. 
MANUFACTURERS: 

Bids  submitted  by  persons  who  are  not,  1114. 
MAPS: 

Departmental,  transferred  to  Library  of  Congress  or 

public  library.  District  of  Columbia,  1280. 
Destroying,  removing,  stealing,  or  attempting  to  do 

so,  1335,  13.36. 
Estimates  and  appropriations  for.  Navy,  1103. 
Preparation  and  sale  of,  Hydrographic  Office,  390, 

1236,  12.38. 
Restrictions  on  embodying  in  annual  reports,  1239. 
MARINE  BAND: 

Band  instruments;  exchange  of,  1474. 
Competition  with  civilians  352,  1463,  1464. 
Enlisted  strength,  Marine  Corps,  exclusive  of,  14.58. 


MARINE  BAND-Continued. 
Organization  of,  920,  1463,  1464. 

under  personnel  act,  1271. 
Status  and  pay  of,  951,  952, 1463, 1464. 
MARINE  CORPS: 

See  Allouanfcs:   Army;  Articles  for  the  Oovernmenl 
of  the  Xavy:  A  rticlcs  of  War;  Enlisted  men;  Enlistments; 
Major  General  Commandant;  Marine  Band;  Officers 
of  the  Marine  Corps;  Pay  of  Naval  Establishment:  Re- 
tired enlisted  men;  Retired  officers;  Retirement. 
Additional  number  officers,  1289,  1458. 
major  general  commandant,  929,  1.392. 
promotion  to  brigadier  general,  1459. 
war  ser\'ice  or  extraordinary  heroism,  1275,  1276, 
1289. 
Advancement  of  officers  for  conduct  in  battle  or  ex- 
traordinary heroism,  921,  933,  12S9. 
Appointment  of  officers:  age  and  examination  of  candi- 
dates, 1270. 
dismissed  midshipmen,  1281. 
qualifications,  922,  925. 

second  lieutenants;  from  graduates  of  Naval  .\.cad- 
emy,  IISS,  1189,  1270,  1281,  1392. 
Army  laws  applicable  to,  924,  940-943,  964,  965. 
Assistant  to  Judge  Advocate  General  detailed  from, 

1418. 
Brevet  commissions,  931-933. 
Brigades,  organization  of,  936. 

Pliilippine  Islands;  status  and  discipline  of,  955. 
Command  over  navy  yards  and  vessels,  9-55. 

when  serving  with  Army,  443. 
Cooperating  with  Army,  443. 

supplies  and  transportation,  433. 
Commissioned  officers,  number  and  grades  of,  917,  918, 
14.58. 
number  of;  when  may  be  exceeded,  921 . 
Companies,  organization  of,  936. 
Computations,   number   of  officers:   distribution   in 
rank,  1458. 
final  fractions,  920,  921,  1428,  1458. 
major  general  commandant  counted  as  senior  to 
colonel,  1459. 
Court-martial  jurisdiction  over,  960,  961. 
Date  of  rank  on  promotion,  931. 
Deck  courts  may  be  ordered  by  officers  of,  1308. 
Deposit  of  sa\-ings,  enlisted  men,  951,  1295. 
Detached,  definition  of,  954. 

Detached  service;  authority  of  liigher  officers  of  corps, 
955. 
with  Army;  command  ofjoint  forces,  443, 1544. 
jurisdiction,  1544. 

status  and  duties;  decisions  relating  to,  443, 
956-963. 
Detachments,  organization  of,  936. 
Duties;  on  shore,  9.55. 

service  on  vessels,  954. 
Enlisted  men  appointed  as  midsliipmen,  743. 
detained  in  service  under  Na\-y  laws,  557. 
distribution  of,  921. 

may  be  substituted  for  landsmen,  955. 
number  of,  919,  920. 
pay  grades,  945. 

ser\ing  as  firemen  on  vessels;  pay,  878. 
transferred  to,  from  Army,  555. 
transferred  to  and  from  Hospital  Corps,  555,  567, 
1420. 
Enlistment  allowance,  942. 
bounty,  942. 

governed  by  Na^"y  laws,  545. 
term  of,  934,  1552. 


1636 


INDEX. 


MARINE  CORPS— Continued. 

Examinations  for  appointment,  1461. 
promotion,  711,  924-927,  1270. 

failure  to  pass  reexamination;  discharge,  1463. 
loss  of  numbers  for  professional  failure,  1463. 
physical,  707,  70S,  1463. 
Exchange  of  sewing  machines,    band  instruments, 

etc.,  1474. 
Exemption  from  arrest  in  certain  cases,  935. 
Extension  of  minority  enlistments  in,  1476. 
Extra  duty,  enlisted  men;  restrictions  on,  1315. 
Funeral  expenses,  906. 
General  provisions  relating  to,  917-971. 
Grades  of  enlisted  men;  distribution  in,  1548. 
Gunnery  sergeants;  950,  1271,  13S3. 
Headquarters;  status  of;  191,  192,  331,  895,  957. 
Homesteads;  general  pro\-isions  relating  to,  1083-1087. 
Jurisdiction;  embarked  on  naval  vessels,  1442. 
Length  of  service  credited  1o  officers  of,  927,  928. 
Major  generals  authorized;  junior  to  major  general 

commandant,  1512. 
Medals  of  honor  and  gratuity  imder  Navy  law,  514, 

1275. 
Medical  attendance,  904. 
Medical  personnel  ser\'ing  with,  when  detached  for 

service  \\ith  Army,  1421. 
Midsliipmen  appointed  on  graduation,  1188, 1189,  1221, 

1222,  1270,  1281,  1392. 
Mileage  allowed  officers  traveling  under  orders  without 

troops,  1251. 
Naval  Academy  graduates  appointed  to;  commence- 
ment of  pay,  1221,  1222. 
ser\'ice  defined  toinclude,  920,  921. 
Na\T  laws  applicable  to,  962,  967,  968. 
Not  a  part  of  the  Navy  Department,  359. 
Number  of  enlisted  men,  919,  920,  1271,  1416, 1548. 
distribution  in  grades,  1463,  1548. 
during  national  emergency,  1463. 
exclusive  of  those  sentenced  to  discharge,  1463. 
permanently  authorized,  1548. 
Number  of  officers  and  enlisted  men  increased,  1416. 
officers;  distribution  in  ranks,  917,  918,  1458. 
pay  clerks,  1515. 

staff  officers;  appointment,  details,  etc.,  1460. 
warrant  officers,  1462. 
Oaths;  officers  authorized  to  administer,  1240. 

taken  by  officers  and  men,  935. 
Officers  may  liold  civil  appointments  in  Virgin  Islands, 
1075. 
rates  of  pay,  940,  941. 
Organization,  917-921. 

companies,  detachments,  regiments  and  brigades, 

936. 
under  personnel  act,  1270, 1271. 
Pay  and  allowances;  general  provisions  relating  to, 

936-954. 
Pay  clerks,  918,  919. 
pay  of,  950. 

title  established;  number,  pay,  etc.,  1515. 
Post  laundries;  operation  of;  reuse  of  appropriations, 

1531. 
Precedence  of  officers,  930,  931. 

Private  first  class;  rank  established;  number  author- 
ized, 1478. 
I'robationary  appointments,  925. 
Promotion;  Army  laws  extended  to,  1219. 
examinations,  711,  924-927,  1270,  1463. 
for  conduct  in  battle  or  heroism,  933. 
laws  and  decisions  relating  to,  924-927,  1219. 
Ust;  promotions  made  from,  according  to  seniority, 
1461. 


MARINE  CORPS— Continued. 

Promotion;  physical  examination,  707,  708, 1463. 

physical  incapacity;  retired  rank,  965. 
Punishments  infficted  by  commanding  officer,  1002. 
Rank  in  relation  to  the  Army,  930,  931. 
in  relation  to  the  Navy,  667. 
retired  officers,  964. 
Senior  staff  officers,  1460. 
Ratings  and  grades  for  enlisted  men  may  be  established 

by  Secretary  of  the  Navy,  1552. 
Rations,  enlisted  men,  9.53,  954, 1531. 

officers  not  entitled,  954. 
Reduction  in  number  of  officers;  power  of  Congress,  921. 
Regiments,  organization  of,  936. 
Regulations;  Army  and  Navy;  subject  to,  956,  961. 

President  to  prescribe,  956. 
Reimbursement  for  effects  lost  in  naval  service,  271, 

1492-1494. 
Retired  enlisted  men,  967,  1299. 
officers;  active  duty,  966. 

active  duty;  Navy  laws  govern,  659,  914,  967, 

968. 
and  enlisted  men;  status  of,  969,  970. 
Retirement,  civil  war  officers,  1282, 1293. 

disability  not  incident  to  service,  968,  969. 
enlisted  men,  1299. 

furlough  pay;  naval  laws  not  applicable  to,  621, 915. 
Judge  Advocate  General,  %8. 
laws  and  decisions  relating  to,  963-971. 
Sale  of  subsistence  stores,  etc.,  to  personnel  and  civil- 
ians, 1313,  1314,  1391,  1464. 
to  personnel  of  Army,   Coast  Guard  and  Public 
Health  Service,  1465,  1533. 
Sea-duty  pay,  officers  and  enlisted  men,  1408. 
Second  lieutenants;  appointment  of,  922,  925,   1188, 

1189,  1270,  1281. 
Secretary  of  the  Navy;  jurisdiction  over,  956,  957. 
Special  qualifications,  details,  etc.,  enlisted  men;  pay, 

947,  948. 
Specialist  ratings,  enlisted  men;  pay,  942,  946. 
Staff,  1460,  1461. 

detail  of  senior  officers  away  from  headquarters, 

784,  922. 
duties  of  senior  officers,  922. 
organization  under  personnel  act,  1271. 
rank  of  officers,  929. 
relation  to  the  line,  921,  922. 
Status;  cooperating  with  Army,  961. 

detached  for  service  with  Army,  443,  960. 
normally  part  of  Navy,  957-960. 
Subsistence,  enlisted  men,  954. 
Temporary  officers  transferred  to  permanent  service, 

1548. 
Thanks  of  Congress;  officer  advanced  for  receiving,  933. 
Training  camps,  1464. 
Transfer  of  enlisted  men  to  and  from  hospital  corps, 

555,  567,  1420. 
Warrant  officers,  918,  919. 

appointment,  rank,  pay,  retirement,  etc.,  1462. 
foreign  shore  duty  pay,  1474. 
number  increased,  1479. 
MARINE  CORPS  RESERVE: 

Commissioned   officers  eUgible   for   membership   on 

comts-martial,  1494. 
(ieneral  provisions  relating  to,  1454,  1455. 
National  Naval  Vohmteers  transferred  to,  1508, 1509. 
Service  in,  credited  to  officers  and  enlisted  men  of 

regular  service,  1529,  1530. 
Transfer  of  officers  to  permanent  Marine  Corps,  1.548. 
MARINE  DISASTER: 
Construed,  272. 


1637 


INDEX. 


MARINE  ENGINES: 

Naval  vessels;  use  of  patented  articles  connected  with, 
770.  ■ 
MARINE  GUNNERS: 

Appointment  as  warrant  oflicers,  Marine  Corps,  1462. 
MARINE  PARADES: 

UoRulations:  onforcemcnt  of  by  head  of  any  depart- 
ment, 1300,  1301. 
MARINERS: 

Hestitute  seamen,  575. 

Merchant  seamen  confined  as  prisoners  on  naval  ves- 
sels, 576. 

Naval  oflicers  may  exercise  consular  powers  in  relation 
to,  575. 

Notices  to;  publication  by  Hydrographic  Office;  num- 
ber of  copies,  1238. 
MARINE  SCHOOLS: 

See  Nautical  .vc/ioo/.t. 
MARITIME  JURISDICTION: 

Crimes  committed  within,  1:?4S-1351. 

Judicial  power  with  relation  to,  105. 
MARKSMANSHIP: 

Director  of  Civilian;  appointment  of  marine  officer 
as,  1465. 
MARRIAGES: 

Naval  vessels;  performing  on  board,  575. 
MARRIED  WOMEN: 

Sureties  on  bonds,  484,  485. 
MARSHALS: 

Attorney  General  to  supervise  and  direct,  323. 
MARTIAL  LAW: 

Decisions  relating  to,  44-47. 

Insurrections;  employment  of  naval  forces,  1169. 
MARYLAND: 

Laws  relating  to  United  States  jurisdiction  in,  293-294. 
MASCULINE: 

Includes  females,  in  Federal  statutes,  185, 1355. 
MASTER  AT  ARMS : 

Refusing  to  receive  prisoners,  or  suffering  to  escape; 
punishment,  Navy,  985. 
MASTER  RIGGER: 

Service  on  examining  boards  concerning  repairs  to 
vessels,  777. 
MASTERS: 

Grade  of  in  Navy,  changed  to  lieutenant  (junior  grade), 
448, 1190. 

Rank  with  first  lieutenant,  662. 
MASTER  SAILMAKER: 

Service  on  boards  concerning  repairs  to  vessels,  777. 
MASTER  WORKMEN: 

Navy  yards:  appointment  of,  779  ,  780. 

serv'ice  on  examining  boards  concerning  repairs  to 
vessels,  776. 
MATERIAL: 

See  Public  property. 

Sale  of  naval,  777-779, 1190. 
MATERIAL  MEN: 

Protection  of;  contracts  for  public  works,  1227, 1228. 
MATES: 

Appointment  as  Navy  mail  clerks,  522. 

Deposits,  enlisted  men  rated  as,  524. 

Enlisted  men  rated  as,  515. 

General  provisions  relating  to,  515-525. 

Honorable  discharge  gratuity  and  continuous  ser\'ice 
pay,  891. 

Pay  and  allowances  of,  521,  522,  792,  800,  864. 

Quarters;  same  commutation  as  second  lieutenants, 
097,  827,  1275. 

Rating  of  enlisted  man    as,  does  not  discharge  from 
enlistment,  523. 

Rations  allowed  to,  897. 


MATES— Continued. 

Retired;  honorable  discharge  gratuity  and  continuous 

service  pay,  890. 
Retirement  of,  519-521. 
Revocation  of  appointment,  522. 
MATHEMATICS: 

See  P  Toft  ssors  of  mcUhematics. 
MAYHEM: 

Definition  and  punishment,  1350. 
MAYOR: 

Retired  officer  may  accept  position  of,  1075. 
IWEASURERS: 

Fuel  wood  purchased  for  public  service,  1110. 
Office  of  measurer  and  inspector  of  timber  may  be 
abolished,  533. 
3IEATS: 

Preserved,  purchase  of  for  Navy,  1115. 
MECHANICS: 

See  Civil  cxtahlishmcnt;  Pay  of  civil  establishment. 
Eight-hour  law  appUcable  to,  1117,  1219,  1220,  1370, 
1371, 1474. 
MEDALS: 

Appropriation  for  cost  of,  1522. 

Bar  or  other  insignia  in  lieu  of  second  and  succeeding 

medals,  1521,  1522. 
Conduct  for  which  awarded,  1521. 
Death;  award  after,  1522. 

Duplicates  authorized  where  originals  lost,  1282. 
Enlisted  men;  distinguished  conduct  in  battle;  ex- 
traordinary heroism,  512,  1275. 
gratuity  allowed,  512,  865,  1275, 1521, 1522. 
rosettes  and  ribbons,  1262. 
Entire  ser\ice  prior  to  award  and  after  distinguished 

act  must  be  honorable,  1522. 
Flag  officers  may  Ise  empowered  to  award   Navy 

crosses,  1522. 
Foreign;  acceptance  and  wearing  of,  76,  1516. 
tendered  through  State  Department,  1187. 
wearing  of  by  officers,  76,  1187,  1516. 
General  provisions  relating  to  medals  and  crosses,  512- 

515,  1521-1523. 
Good  conduct;  additional  pay,  enlisted  men,  866. 
Interchanged    between    United    States   and    foreign 

military  forces,  1516,  1517. 
Medal-of-honor  roll.  Navy  Department;  special  pen- 
sion, 1410. 
Officers  of  Navy,  Marine  Corps  or  Coast  Guard,  1402. 
Replacement  of  lost  medals,  crosses  and  bars,  1522. 
Time  for  award  of  medals  and  crosses,  1522. 
MEDICAL  ATTENDANCE: 

Dental  treatment,  court-martial  prisoners,  903. 

Does  not  include  dental  treatment,  904. 

Naval  persoimel,  902-904. 

Not  pay,  but  an  allowance,  440. 

Persons  entitled   to;  deductions   for  naval  hospita 

fund,  904. 
Retired  officers,  440. 

Sick  or  disabled  men  on  naval  vessels,  995. 
Specialist's  expenses,  904. 
3IEDICAL  CORPS: 

See  Dental  Corps;  Hospital  Corps;  Retirement;  Retired 

officers;  Staff  officers. 
Acting  assistant  surgeons;  number,  rank,  and  pay, 
527,  529,  675,  1184,  1261. 
retirement,  528. 
Additional  compensation  for  professional  ser\'ices  to 

Federal  prisoners,  459. 
Advancement  in  rank,  1426,  1481,  1513. 
Appointments  in;  age  requirements,  1427. 

how  made,  461. 
Assistant  surgeons;  quaUfications  for  appointment,  462. 


1638 


INDEX. 


MEDICAL   CORPS— Continued. 

Assistant  surgeons;  qualifications  for  promotion,  464. 

Assistant  surgeons,  rank,  1273, 1426. 

Autopsies;  authority  to  perform,  460,  461. 

Command,  hospital  ships,  703,  785. 

Command,    hospital   ships    or    hospitals:  convening 

courts  and  inflicting  punishments,  1441. 
Command;  relative  rank  not  to  confer  right  of,  702. 
Communicable  diseases:  cooperation  to  suppress,  1520. 
Consultations  to  be  held  in  fleets  and  squadrons,  466. 
Detail  of  officer  as  assistant  to  Bureau  of  Medicine  and 
Surgery,  466. 
on  advisory  board.  Public  Health  Service,  1279. 
to  Red  Cross,  1436,  1437. 

with  marines  detached  for  service  with  Army; 
jurisdiction,  1421. 
Disease;  injections  to  prevent:  naval  persoimel  must 

submit  to,  458. 
Distilled  spirits  on  vessels,  imder  control  of  medical 

officers,  989. 
Distribution  of  officers  in  grades,  1427. 
General  provisions  relating  to,  455r466. 
Hospital  ships ;  command,  703,  785,  1441. 
Number  of  acting  assistant  surgeons,  1261. 
of  officers,  455,  456,  1425,  1436,  1437. 
and  enlisted  men  increased,  1416. 
Nurse  Corps,  female;  general  provisions,  1303,  1304. 
Officer  convicted  of  vulgar  and  indecent  acts;  unfitted 

for  duties,  5S3. 
Organization  of,  455. 
Passed  assistant  surgeons,  rank,  675,  676. 
status,  457,  458. 
to  have  commissions,  1251. 
Precedence  of  officers,  1426. 

not  disturbed  byact  of  August  29,  1916;  1480,  1481. 
Private  practice  by  members  of,  459,  460. 
Promotions  in,  464,  465. 

examinations,  1251,  1481,  1482. 
Rank,  acting  assistant  surgeons,  529,  1261. 

and  precedence  of  assistant  surgeons,  1273,  1426, 

1480. 
of  officers  in,  673-676. 
distribution,  1427. 
Reports  to  State  authorities,  49,  50,  461. 
Stores;  procurement  of  for  fleets  and  squadrons,  466. 
Surgeon  of  ship;  duties  relating  to  health  of  crew,  995. 

to  report  as  to  health  of  accused  persons,  1009. 
Surgeon  of  the  fleet,  appointment,  466. 
duties,  466. 
MEDICAL  DIRECTORS: 
Pay,  792,  801. 
Rank,  673,  1427. 
MEDICAL  EXAJVnNERS; 
See  Boards. 

Boards  convened  on  foreign  stations,  707, 1472. 
MEDICAL  EXPERTS: 

Testimony  of,  611. 
MEDICAL  INSPECTORS: 
Pay,  792,  801. 
Rank,  673,  1427. 
MEDICAL  RESERVE   CORPS: 

Army;  reinstatement  of  civil  employees  after  service 

in,  1464. 
Na\'y;  laws  relating  to  repealed,  1509. 
MEDICAL  SUPPLIES: 

DistiOed  spirits  on  naval  vessels,  989. 
Loan  to  Red  Cross,  1394,  1395. 
Procurement  of  for  fleets  and  squadrons,  466. 
Purchase  of  in  excess  of  app  opriations,  1116,  1288. 
MEDICAL  SURVEY: 

Discharge  on;  transportation  home,  875,  1274,  1275. 


MEDICAL  TREATMENT: 

Death  resulting  from;  line  of  duty,  613. 
Enlisted  man;  enlistment  expired,  559. 
Enlisted  man,  furloughed  wrthout  pay,  537,  903. 
Naval  personnel  required  to  submit  to,  458. 
Persons  not  in  Navy,  459,  460,  1468. 
Records  to  be  kept  of,  460. 
Refusal  of  officer  to  submit  to,  615,  616. 
Surgical  operations;  whether  naval  personnelrequire 
to  undergo,  458,  459. 
MEDICINE  AND  SURGERY: 

See  Bureaus;  Chiefs  nf  bureaus;  Surgeon  General. 
MEDICINES: 

See  Medical  attendance;  Medical  supplies. 
Allowance  of,  902-904 . 
Purchase  without  advertising,  1113. 
MEETINGS: 

Expenses  of  public  officers  attending  societies  and 
associations,  1371. 
MEMBERSHIP: 

Public  officers  in  societies  or  associations,  1371. 
MEMBERS   OF  CONGRESS: 

Accepting  fee  as  counsel  before  courts-martial,  depart- 
ments, etc.,  13:33. 
Advertising  names  of,  by  firms  or  corporations,  etc., 

practising  before  departments,  1411. 
Appointments  to  office;  accepting  consideration  for 

procuring,  1332,  i:333. 
Board  of  \'isitors.  Naval  Academy  selected  from,  1458. 
Civil  employees  may  petition,  or  furnish  information 

to,  etc.,  1388. 
Contracts;  not  to  be  interested  in,  1118, 1333, 1.334. 
De  facto  officers;  midshipmen  appointed  on  recom- 
mendation of,  747. 
Holding  other  offices,  34. 
Retired  officer  serving  as,  34. 
Subpoenaed  by  court-martial,  33. 
MEMORIALS: 

Erection  in  Arlington  Memorial  Amphitheater,  1559. 
Naval  Academy  Chapel,  use  for,  restricted,  1314,  1315. 
aiENACES: 

Punishment  for  using  toward  other  persons  in  Xa\'y, 
984. 
MENTAL: 

Defined;  moral  and  professional  distinguished,  712-721. 
Disability;  retirement  for,  593. 
Examination  for  promotion,  711-721. 
MERCHANDISE: 
Definition  of,  1408. 
Transporting  on  naval  vessel,  985. 
MERCHANT  MARINE: 

Charts  furnished  by  Hydrographic  Office,  Na\-y  De- 
partment, 3S7. 
Commandeering  vessels  for  use  as  transports  or  cruis- 
ers, 1218. 
Confinement  of  seamen  as  prisoners  on  naval  vessels, 

576. 
Development  of,  for  service  as  a  naval  auxiliary,  15.54, 
1555. 
jurisdiction  of  Shipping  Board,  1467. 

Licenses  required  of  naval  officers  serving  as  master 
of  vessel,  11.35. 

Maltreating  personnel  of  vessels  under  convoy,  985. 

Naval  vessels  to  protect  against  piracy,  1130. 
MERCY: 

Court-martiai  members  may  recommend,  1034. 
MERIDIANS,  391. 
MESS  ATTENDANTS: 

Pay,  864. 


1639 


INDEX. 


MESSENGERS: 

Soe  Civil  (stablishmeni;  Pay  of  civil  cstablishmenl. 
Appointment,  number,  pay,  etc.,  204,  20'),  209. 
MESSES: 

Commutation  of  rations  paid  to,  902, 1279. 

raise  reports  l)y  treasurer  of;  held  not  to  be  fraud 

against  United  States,  902. 
P'lmds  of;  whether  public  money,  232,  902. 
Ciarbage,  sale  of;  proceeds  public  money,  232,  899. 
Officers;  on  shore;  messmen  not  allowed,  829. 
MIDSHIPMEN': 

See  Appointnunls;  Naval  Academy. 
Academic  course,  762-765, 1369. 

reinstated;  not  required  to  repeat,  7G4. 
Age  requirements,  1507. 

appointments  from  enlisted  men,  1472, 1473. 
can  not  be  waived,  750. 
Aliens  appointed  as,  571. 
Appointment;  date  effective,  746. 
final  as  to  qualifications,  750. 
from  enlisted  men,  Coast  Guard;  eligibility,  743. 
Marine  Corps,  743. 
Navy,  743,  744. 

Secretary  of  the  Na^-y  authorized  to  make, 
1472,  1473,  1502. 
from  Naval  Reserv-e  Force,  744, 1502. 
from  Porto  Rico,  742,  743,  1281. 
illegal ;  appropriations  not  applied  to  support  of,751. 
on  graduation,  76.5-768,  IISS,  1189,  1392. 

commissioned  effective  from  date  of  gradua- 
tion, 1479. 
discretion  as  to  commissioning,  767. 
Filipinos  not  entitled  to  conmiissions  in  Navy, 

1424. 
pay,  commencement  of,  830, 1221, 1222, 1479. 
"subject  to  examination,"  768. 
to  be  ensigns,  766,  1193,  1392. 
to  Marine  Corps,  766,  1270. 
to  Marine  Corps  or  staff  corps,  766, 1392. 
vacancies  required,  767. 
qualifications  of  candidates,  749. 
recommendation  of  Senators  and  Representatives, 

744-749,  1294,  1295. 
recommendation  of  Senators  and  Representatives 

advisory  only,  745. 
residence  of  candidates,  750,  751, 1294, 1295. 
students  from  foreign  countries,  743,  1294. 

Philippine  Islands,  743,  1424. 
to  Marine  Corps,  after  failure  to  graduate,  1462. 
to  Naval  Reser\-e  Force,  former  midshipmen,  1445, 
1448. 
Cadet  engineers,  768-770. 

Candidate  not  qualified;  second  recommendation,  749- 
Clothing,  procurement  of,  770. 
Court-martial  of,  751-761. 

courts  convened  by  Secretary  of  the  Navy,  1248. 
for  hazing,  1178,  1286,  1287. 
Deficient  on  examination;  reexamination  and  specia] 
instruction  required,  1555,  1556. 
status  of,  751-755. 
Designation  changed  to  ensign,  junior  grade,  1190, 1191. 
Diploma;  certificate  of  graduation  given  on  discharge 

of  surplus,  1188,  1189. 
Discharge  for  deficiency  restricted,  1555,  1556. 

of  surplus  graduates  with  one  year's  sea  pay,  1188, 
1189. 
Dismissal,  752,  755-760. 
effect  of,  761. 

eligibility  for  reappointment,  582. 
for  hazing;  effect  of,  1178,  1281. 
for  single  act  of  hazing;  court-martial  required, 
1286. 


MIDSHIPMEN-Continued. 

Dismissal,  procedure  to  be  followed,  1286. 

without  court-martial;  exception,  1286. 
Dropped  for  deficiency,  751-755. 

Enlisted  men  appointed  as,  743,  744,  1472,  1473,  1502. 
Examination;  final  graduating  examination  defined, 
687. 

for  commission;  effect  of  deficiency,  754,  755. 

graduating;  appointments  if  successful,  765. 

of  candidates,  748. 
Foreign  countries;  students  from,  743,  1294. 
General  provisions  relating  to,  738-771. 
Grade  of,  changed  to  ensign,  448. 
Graduates,  surplus,  discharged  with  one  year's  sea 

pay,  1188. 
Graduation,  appointments  on;  general  provisions  relat- 
ing to,  765-768,  1188,  1189,  1193,  1270,  1392. 

certificates  given  on  discharge  of  surplus,  1188, 1 189. 

date  of,  688. 

defined,  687. 
Hazing,  defined,  1287. 

punishment  for,  752,  757-759, 1178, 1286,  1287. 

rules  to  prevent,  1281. 
Imprisonment  for  brutal  or  cruel  hazing,  1287.    - 
Instruction  of,  as  to  nature  and  effects  of  alcoholic 

drinks,  etc.,  1194,  1195. 
Leave  of  absence;  pay,  764. 
Medical  attendance,  903. 
Mileage  for  travel  abroad,  667. 

Naval  cadets  substituted  for  cadet  midshipmen  and 
cadet  engineers,  1188. 

title  changed  to  midshipmen,  1279. 
Nomination,  candidates  and  alternates,  744-749,  1294, 
1295. 

date  of,  747. 

second  recommendation,  749. 
Number  of,  741-744, 1472, 1473, 1502. 

graduates  insufficient  to  fill  vacancies,  767. 
Oath  of  office,  748. 

Obligation  assumed  to  serve  in  Navy,  746,  747. 
Official  Register  of  the  United  States  to  contain  names 

and  information  concerning,  12.36. 
Pay,  792,  799,  1302. 

when  commissioned  as  officers,  830, 1221, 1222,  1479. 
PhiUppiae  Islands,  students  from,  743, 1424. 
Porto  Rico,  appointments  from,  742,  743,  1281. 
President  to  select  candidates  from  District  of  Columbia 

and  at  large,  1294,  1295. 
Promotion  on  graduation,  general  provisions  relating 

to,  765-768,  1188,  1189,  1193,  1270,  1392. 
Qualifications;  residence,  age,  etc.,  748,  750,  751,  1294, 

1472,  1473,  1.507. 
Rank  and  precedence  on  graduation,  687,  765. 

no  correspondiag  rank  in  Army,  667. 
Rations  and  commutation  allowed,  893, 1194. 
Reinstatement,  582,  747,  749,  761,  762. 

after  dismissal  for  hazing,  1178, 1281. 

not  required  to  repeat  course,  764. 

qualifications  same  as  on  original  appointment,  750. 
Residence  of  candidates,  750,  751,  1294, 1295. 
Resignations;  revocation  of  acceptance,  747. 
Revocation  of  appointment,  747. 
Sea  service,  1369. 
Secretary  of  the  Navy  appoints,  745. 

appoints,  if  nomination  not  made,  1294, 1295. 

may  prescribe  special  course  of  study  for,  1 189. 
Service  as,  not  credited  to  Army  officers,  1388. 

or  to  naval  officers,  1390. 
Special  course  of  study  and  training  at  home  or  abroad 

authorized,  1189. 
Status  of,  740,  741,  755-757,  764,  903. 


1640 


INDEX. 


MID  SHIPMEN— Continued . 

Status  of,  after  graduation,  pending  appointment,  768. 
Students  from  foreign  countries,  743,  1294. 

Piiilippine  Islands,  743,  1424. 
Studies;  ethics,  Englisli;  Spanish  and  drawing,  771. 

not  to  be  pursued  on  Sunday,  770. 
Surplus  graduates   honorably   discharged   with   one 

year's  sea  pay,  1188,  1189. 
Suspension,  court-martial  sentence;  confirmation  by 
President  required.  1248. 
without  pay,  755. 

not  entitled  to  allowances,  828. 
Title  of  naval  cadet  changed  to,  1279. 
Uniforms,  etc.,  sold  to,  at  cost,  1J)21. 
MIDSHIPMEN'S  COMIVUSSARY  FUND: 

Payments  to  servants  from,  771,  1391. 
MIDSHIP3IEN'S  MESS: 

Funds  held  to  be  public  money,  232. 
ailDSHIPMEN'S  STORE: 

Accumulated  profits;  public  money,  232. 
Fund,  770,  1304. 
3ULEAGE: 

See  Travel;  Transportation. 

Actual  expenses;  Government  officers  attending  as 

witnesses,  413. 
Books  paid  for  in  advance  of  travel,  1282. 
Discharged  enlisted  men,  874-876,  1415. 
Exchange  of  stations;  voluntary;  officers  not  entitled 

to,  844. 
General  provisions  relating  to,  840-846. 
Government    transportation    furnished;  no    mileage 

paid,  843,  1395. 
Leave  of  absence;  officer  traveling  to  and  from,  843, 

844. 
Marine  Corps,  949. 

officers  traveling   under   orders  without  troops, 
1251. 
Midshipmen;  travel  abroad,  667. 
Naval  officers;  abroad;  actual  expenses  in  lieu  of,  1189. 
amount  allowed,  1180. 
in  the  United  States,  1272,  1273,  1274. 
traveling  on  vessel  during  trial  trip,  844. 
Officers;  can  not  be  deprived  of  statutoiy  allowance, 
844,  845. 
who  are,  within  meaning  of  law,  846. 
Repeated  travel;  actual  expenses  in  lieu  of,  1272, 

1273,  1274. 
Resignation  of  officer;  travel  home,  844. 
Retired  officer  ordered  before  court-martial  for  trial, 

658. 
Shortest  usually  traveled  route,  845, 1315. 
Travel  by  permission,  844. 
Witnesses,  410. 

before  naval  courts,  1310. 
no  testimony  given,  415. 
IVOLITART: 

Defined  to  include  Navy,  76,  579,  1517. 
Regulations;  President  to  prescribe  for  Marine  Corps, 
956. 
MIUTARY  ACADEMY: 

Cadet  faihng  to  graduate;   appointment  to   Marine 

Corps  restricted,  1462. 
Service  at,  not  credited  to  naval  officers,  1390. 
anLITARY  COMaiAND: 

Construction  officers  may  exercise  in  line   or  other 

staff  corps,  508. 
Engineer  officers;  succession  on  shore,  1435. 
Line  officers  detailed  under  staff  officers,  1359. 
Medical  officers;  hospital  ships,  703,  785. 
Naval  Reserve  Force;  restrictions  on,  1453,  1511. 
Naval  vessels  and  squadrons,  772-774,  775,  955,  1277. 


MILITARY  COMMAND— Continued. 

Staff  officers;  elloet  of  relative  rank,  702. 
rank  not  to  confer,  1265. 

Warrant  officers  and  commissioned  wsrrant  officers, 
1267. 
MILITARY  COMMANDER: 

Seizure  of  private  property,  40. 
MILITARY  COMRUSSIONS: 

Jurisdiction  of,  46,  47. 
MILITARY   DUTIES: 

Not  compatible  with  grades  of  staff  officers,  507. 
MILITARY   FORCES: 

See  Naval  forces. 

Coast  Guard  to  constitute  part  of,  1400. 

Definition  of,  1496. 
MILITARY  GOVERNMENT: 

Conquered  territory,  41. 

Conquered  territory,  after  war,  109. 

Constitution  provides  for,  08. 

Guam  and  Tutuila,  Samoa,  109. 

Power  of  military  commander,  110. 
MILITARY  INSTITUTES: 

Detail  ofnaval  officers  to,  435. 
MILITARY  QUESTIONS: 

Duty  and  command  are,  932. 
MILITARY  RESERVATIONS: 

See  Reservations. 

State  laws  applicable  in;  criminal  code,  135L 

Unlawfully  entering,  1327. 
MILITARY   SCHOOLS: 

Loan  ofnaval  equipment  to,  1277,  1359. 
MILITARY  SERVICE: 

Army  and  Navy  are  branches  of,  579. 

Compulsory  during  war,  47. 

Enhsted  men  transferred  from,  to  Navy  or  Marine 
Corps,  555. 

Jurisdiction  over,  during  war,  42. 

Money  or  property  intended  for  military  or   naval 
service;  offenses  against,  990,  1325. 
MILITARY  SOCIETIES: 

Badges  of,  worn  by  naval  personnel,  1216,  1224,  1273, 
1280,  1299. 

Loan  or  gift  of  condemned  ordinance,  etc.,  to,  1249. 
MILITIA: 

See  National  Guard;  Naval  Militia. 

Employment  of,  to  suppress  insurrection,  1169. 
MINES: 

See  Alaska'. 

Secretary  of  the  Interior;  supervision  of,  .395. 
aUNISTERIAL: 

Secretary  of  the  Navy's  duties  are  not,  344,  345. 
MINORS: 

See  Enlislments;  Fraudulent  enlistment. 

Eligible  to  sit  as  member  of  court-martial,  1018. 

Enlistment,  540. 

consent  of  parents  or  guardians,  544,  .545,  548-551. 
discharged  on  parent's  request,  1402,  1403. 
guardiansliip  papers  prepared  by  register  of  wills, 

D.C.,  1217. 
under  14  years,  prohibited,  551. 

Enrollment  in  Naval  Reserve  Force;  ages;  consent  of 
parents,  1546. 

Held  to  be  enlisted  men,  536,  545. 

Homestead  laws;  privileges  of,  1083. 

Unlawful  enlistment  of;  penalty  for  recruiting  officer, 
994. 
MISAPPROPRIATION: 

Money  or  properly  intended  for  naval  service,  990, 
1325. 

Naval  personnel;  public  or  private  money  or  property, 
1170. 


1641 


INDEX. 


>nSCELLAXEOUS  RECEIPTS: 

Coudomncd  Navy  clothing;  proceeds  of  sales  revert 

to  appropriations,  1 108. 
Garbage;  proceeds  of  sales,  2:!2,  899. 
Hydrographic  Oflice  publicatious;  proceeds  covered 

into  Treasury  as,  1543. 
Leases  of  naval  lands;  proceeds,  1419. 

naval  petroleum  reserves;  proceeds  credited    to, 
1533. 
Naval    Homo    property;  proceeds    from    sales,    etc., 

credited  to  naval  pension  fimd,  1472. 
Naval  vessels;  proceeds  from  sales,  1457. 
Operation  of  post  laundries;  proceeds  credited  to  ap- 
propriations from  which  maintained,  1531. 
Proceeds  of  sales  to  bo  covered  into  Treasury  as, 

1095. 
Sales  of  Government  supplies  between  departments, 
1526. 
RUSCONDUCT: 

Absence  due  to;  pay  during,  825,  1436. 
Death  not  result  of;  payment  of  gratuity,  naval  per- 
sonnel, 1546,  1547. 
Evidence  of,  before  promotion  board,  719. 
Investigation  of,  217. 
Naval  officer  not  to  be  retired  for,  622. 

unfit  for  promotion  by  reason  of;  discharge;  pay, 
11 S9. 
MISDEMEANORS: 
Definition  of,  1355. 
MISPRISION: 

Dismissal  of  naval  officers  for  failing  to  report  offenses 

by  midshipmen,  1287. 
Failing  to  give  notice  of  deserters  to  naval  superior,  985, 
to  inform  commanding  officer  of  intended  mutiny, 

punishment  for,  979. 
to  report  offenses  to  civil  or  military  authority, 

1336,  1337. 
to  use  efforts  to  bring  offenders  to  punishment. 
Navy,  985. 
Intercourse  with  enemy;  failing  to  inform  superior 

officer  of;  punishment.  Navy,  979. 
Treason;  definition  and  punishment,  1317. 
MISREPRESENTATION: 

Sureties  induced  to  execute  bonds,  485. 
MISSING  VESSELS: 

See  Vessels  of  the  Navy. 
IVnSTAKE: 

See  Errors. 
MISTAKE  OP  FACT: 

Reopening  of  accounts  for,  248-249. 
Responsibility  of  officer  making,  350. 
MISTAKE  OF  LAW: 

Marine  officer  overpaid;  right  of  Government  to  re- 
cover, 951. 
Payments  made  tay,  245. 
Reopening  of  accounts  for,  249-256. 
MITIGATION: 

Sentences  imposed  on  Coast  Guard  personnel,  1455. 
Sentences  of  courts-martial,  85. 
by  Secretary  of  the  Navy,  1309. 
deck  courts,  1308. 
general  courts-martial,  1051-1055. 
summary  courts-martial,  1009. 
MIXED  DUTY: 

Which  is  paramount,  881. 
MODEL  3IAKERS: 

Emplojrment  from  naval  appropriations  restricted, 
1281. 
MODELS: 

Estimates  and  appropriations  for.  Navy,  1103. 


MODEL  TANK: 

Navy  yard,  Washington,  D.  C,  use  of,  1250. 
MOLDER: 

Ratings  established  in  Navy,  1495. 
MONEY: 

Sec  Public  moneys. 
MONEY  ORDERS: 

Forging,  1343,  1344. 

Issuing  unpaid  for,  1340. 
MONEY  REQUISITIONS: 

Appropriations  drawn  from  Treasury  on,  1104. 
MONITORS; 

See  Vessels  of  the  Navy. 

Naming  of,  1201,  1262,  1304,  1305. 
MONTH: 

Division  of,  for  computing  compensation,  1297. 

Thirty-first  day,  pay  of  civil  employees  for,  207. 
MORAL: 

Cliaracter  of  candidates  for  civil  employment  at  navy 
yards,  780. 

Examination  for  promotion,  711-721. 

Unfitness  for  promotion,  .597. 

amount  of  pay  on  discharge,  630. 

naval  officer  to  be  discharged  for,  623,  624. 

Navy;  discharge;  pay,  1189. 

Unfitness;  what  constitutes,  624-627. 
MOTION  PICTURES: 

Films  of  prize  fights,  1371,  1372. 
MOTIVE: 

As  affecting  responsibility  of  officers  for  official  aets,350. 
MOTOR  BOATS: 

Owners  of  may  enroll  in  Naval  Coast  Defense  Re- 
serve, 14.53. 

Regulation  of,  on  navigable  waters,  1356-1358. 
MOTOR  VEHICLES: 

See  Vehicles. 
MOUNTED  PAY: 

Officers  of  Marine  Corps,  940. 
MOURNING: 

Draping  public  buildings  prohibited,  1220. 
MUNICIPALITIES: 

Lands  leased  from,  for  Navy;  improvements  to  become 
property  of  lessor,  1508. 

Loan  or  gift  to,  of  naval  ordnance,  etc.,  1249. 
MURDER: 

See  Homicide;  Manslaughter. 

Assault  with  intent  to  commit,  1349. 

Attempt  to  commit,  1349. 

Definition  and  punishment,  1349. 

Execution  of  subordinates  without  trial;  jurisdiction  of 
civil  courts,  982,  983. 

Jurisdiction  of  naval  court-martial  to  punish,  982. 

Mailing  matter  tending  to  incite,  1340,  1341. 

Place  where  committed,  1355. 

Trial  by  court-martial  as  manslaughter,  67. 
MUSTER: 

Falsely  making  or  signing,  etc.,  985. 

Into  the  service;  place  of;  mileage  on  discharge,  876. 
MUTINOUS: 

Assembly;  punishment  for.  Navy,  979. 

Words;  punishment  for  uttering,  in  Navy,  984. 
MUTINY: 

Committing  or  inciting  on  board  vessels,  1351,  1352. 

Homicide  committed  in  suppressing,  57. 

Punishment  for,  Navy,  979. 
NAMES: 

See  Vessels  of  the  Navy. 

Assumed;  discharge  certificates  and  orders  accepting 
resignations  in  true  name,  1379,  1380. 

Monitors,  1261,  1262,  1304,  1305. 


1642 


INDEX. 


NAMES— Continued. 
Naval  vessels,  774. 
Parties  to  bonds,  482,  483. 
NARCOTICS: 

Midshipmen  to  be  instructed  as  to  nature  and  effects 
of,  1194,  1195. 
NATIONAL  CEMETERIES: 

Burial  in,  1163. 
NATIONAL  DEFENSE: 

Council  of;  creation,  duties,  etc.,  1465, 1466. 
Offenses  relating  to,  1327,  1482. 
NATIONAL  ENSIGN: 

Pennant  of  Naval  Reserve  Force  not  to  be  flown  in 
lieu  of,  1448. 
NATIONAL  FORESTS: 

Use  of  earth,  stone,  and  timber  by  Navy,  1409. 
NATIONAL  GUARD: 

Appointment  of  officers  from  naval  and  reserve  officers, 

etc.,  1412. 
Leave  of  absence,  civil  employees  belonging  to,  1412. 
Reinstatement  of  civU  employees  after  service  in, 
1484. 
NATION.^L  HOME  FOR  DISABLED  VOLUNTEER 
SOLDIERS: 
Admission  to,  1400,  1401. 
NATIONAL  NAVAL  VOLUNTEERS: 
Laws  relating  to,  repealed,  1455,  1508. 
Members  transferred  to  Naval  Reser\-e  Force,  1508, 1509. 
NATION^IL  RIFLE  ASSOCI.ATION: 
Sale  of  guns  and  ammunition  to,  1516. 
NATIONAL  TROPHT: 

Contested  for,  by  naval  personnel,  1413. 
NATIVES: 

See  Inhabitants. 

Insular  possessions,  naturalization  of,  114. 
N  ATUR  ALIZ  ATI  ON : 

Aliens  in  the  naval  service,  etc.,  140, 1505-1507. 
Deserter  in  time  of  war;  prohibited,  1077, 1078. 
Discharged  enlisted  men,  567,  568. 
Filipinos,  Porto  Ricans  etc.  1506. 
Indians,  137. 
Japanese,  139. 

Natives  of  insular  possessions,  114. 
Naval  Reserve  Force,  1443. 
Power  of  Congress,  36. 
NAUTICAL  ALMANAC: 

Director  of;  recommendation  of  board  of  visitors.  Naval 

Observatory,  as  to  flUing  vacancy,  1276. 
Exchange  of  data  with  foreign  offices;  use  of  employees, 

etc.,  1382,  1383. 
General  provisions  relating  to,  391-393. 
Number  of  copies  to  be  printed,  1234,  1278. 
Pay  of  officer  in  charge  of,  391. 
Sale  of,  by  Navy  Department,  1278. 
disposal  of  proceeds,  1234,  1235. 
NAUTICAL  BOOKS: 

Preparation  and  sale  of,  Hydrographic  Office,  390, 1236, 
1237. 
NAUTICAL  SCHOOL: 

See  Marine  schools:  Military  schools. 
Detail  of  enlisted  men  to,  Philippines,  1297. 

naval  officers  for  duty  in,  1368. 
Loan  of  naval  equipment  to  military  schools,  1277. 
naval  vessels  and  equipment  to,  1367, 1368. 
to,  in  PhiUppines,  1297. 
NAVAL  ACADE>IY: 
See  Midshipmtn. 
Academic  Board,  authority  of,  751,  753,  754. 

course,  762-765,  1369. 
Academic  officers;  duty  to  report  offenses  by  midship- 
men, 1287. 


NAVAL  ACADEMY— Continued. 

Accounts  relating  to,  audited  by  Auditor  for  the  Navy 

Department,  1224. 
Appropriations,  how  applied,  751. 
Assistant  profassors;  duty  to  report  offenses  by  mid- 
shipmen, 1287. 
Band;  competition  with  civilians,  1304,  1411,  1412. 
organization,  etc.,  1355, 1356,  1530. 
pay  of,  818,  891, 1355, 1356,  1.530. 
retirement  of  members,  1355, 1530. 
Board  of  inquiry  to  determine  facts,  proposed  dismissal 
of  midshipman,  1286. 
Visitors;  appointment,  duties,  expenses,  etc.,  1197, 
1458. 
Cadet  engineers,  768-770. 
Cadet  officers,  duty  to  report  offenses  by  midshipmen, 

1287. 
Chapel:  use  of,  for  memorials,  1314, 1315. 
Civilian  instructors  dismissed  for  failing  to  report 

offenses,  12S7. 
Course  at,  to  be  four  years,  1369. 

special,  may  be  prescribed  by  Secretary  of  the 
Navy,  1189. 
Court-martial  for  hazing;  how  convened,  constituted, 
etc.,  1178,  1286,  1287. 
for  trial  of  midshipmen  reviewed  by  Superin- 
tendent, 1248. 
necessary  to  dismiss  midshipman  for  single  act  of 

hazmg,  1286. 
of  officers  for  failing  to  report  offenses  by  midship- 
men, 1287. 
Dauy,  770,  771. 
Date  of  graduation  from,  688. 
~      Dental  surgeon  at,  1422. 

Dismissal  of  civilian  instructor  for  failing  to  report  mid- 
shipman offenses^  1287. 
of  officers  at,  for  failing  to  report  midshipman 
offenses,  1287. 
Ethics,  English,  Spanish  and  drawing,  professors  of,  771 . 
Engineers  graduated  from,  689. 
Established  at  Annapolis,  Md.,  738. 
Examinations;  final  graduating  examination  defined, 

687. 
General  provisions  relating  to,  738-771. 
Hazmg  defined,  1287. 

punishment  for,  752,  757-759, 1178, 1286, 1287. 
mles  to  prevent,  1281. 
Instructions  as  to  nature  and  effects  of  alcoholic  drinks 

and  narcotics,  1194, 1195. 
Instructors;  duty  to  report  offenses  by  midshipmen, 

1287. 
Library  to  receive  public  documents,  etc.,  1240. 
Professors  and  instructors;  number  and  compensation, 
etc.,  1457,  1535. 
civilian;  allowances  to,  quarters,  etc.,  701. 
duty  to  report  offenses  by  midshipmen,  1287. 
naval  officer  detailed  as;  relative  rank  with  Army, 

667. 
of  mathematics;  duties  at,  771. 
Regulations,  738,  739. 

authority  to  make,  195. 
issue  of  clothing  to  midshipmen,  770. 
statutes  interpreted  in  connection  with,  787. 
to  prevent  hazing,  1281. 
violations  to  be  promptly  reported,  1287. 
Secretary  of,  pay,  794,  805. 
Secretary  of  the  Navy  may  prescribe  special  course  of 

study  at  home  or  abroad,  1189. 
Servants  in  commissary  department,  1391. 
Special  course  of  study  and  training  at  home  or  abroad, 
authorized,  1189. 


54641°— 22 104 


1643 


INDEX. 


NAVAL  ACADE>IY-rontiniied. 
Storekeeper  at,  770,  771. 

to  render  property  returns,  1304. 
Students  from  foroipii  countrips,  743,  1294. 
from  Pliilippine  Islands,  743,  1424. 
number  of,  741-744. 
status  of,  710,  741. 
title  of,  739,  lias,  1279. 
Sunday:  studies  not  pursued  on,  770. 
Superintendent;  courts-martial  convened  by,  1286. 
courts-martial  subject  to  review  by,  1287. 
discretion  as  to  causinp  trial  of  midshipman  by 

court-martial,  1286. 
dismissal  of  civilian  instructor  upon  approval  of 

Setretary  of  the  Navy,  1287. 
duties  respecting  dismissal  of  midshipmen,  1286. 
offenses  of  midshipmen  must  be  promptly  re- 
ported to,  1287. 
pay.  815,  1177. 

removal  of  for  neglecting  instructions  to  midship- 
men, 1195. 
rules  to  prevent  hazing  prepared  by,  1281. 
Supreme  Court  reports  and  digests  furnished  to,  1365. 
Title  of  students,  739,  1188,  1279. 
NAVAL  AUXILIARY  RESERVE: 

General  provisions  relating  to,  1452, 1453. 
NAVAL  AUXILIARY  SERVICE: 

Naturalization  of  aliens  with  service  in,  1506. 
NAVAL  CADET: 

Title  changed  to  midshipman,  1279. 
NAVAL  COAST  DEFENSE  RESERVE: 
General  provisions  relating  to,  1453, 1454. 
NAVAL  CONSTRUCTORS: 

See  Construction  Corps;  Staff  officers. 

Appointment  as  Chief  of  Bureau  of  Construction  and 

Repair,  1222. 
Detail  as  assistant  to  Bureau  of  Construction  and  Re- 
pair, 1418. 
Duties  of,  1401. 
Pay,  793,  802. 

Rank  of,  677,  678, 1266, 1427,  1428. 
NAVAL  FLYING  CORPS: 

See  Flying  Corps. 
NAVAL  FORCES: 

See  Coast  and  Geodetic  Survey;  Coast  Gimrd;  Details; 
Enlisted    men;    Land  and    Naval  forces;    Lighthouse 
Service;  Marine   Corps;  Naval  Reserve  Force;  Navy; 
Officers  of  the    Marine   Corps;  Officers   of  the  Navy; 
Vessels  of  the  Navy. 
Coast  Guard  part  of,  705,  706. 
Coast  Guard  to  cooperate  with,  1091. 
Coast  Guard  to  operate  as  part  of,  during  war,  1400. 
Command  of  joint  Army  and,  668. 
Cooperating  with  the  Army;  supplies  and  transporta- 
tion, 433. 
Defined,  58, 1496. 
Employment  of,  772,  773,  775. 
at  State  elections,  1079. 
to  assist  distressed  navigators,  775. 
to  enforce  immigration  law,  1081. 

law  against  slave  trade,  1.347,  1348. 

law  restricting  manufacture  and  possession  of 

explosives,  1492. 
neutrality  laws,  1319, 1320. 
provisions  of  espionage  act,  1486,  1488. 
regulations,  regattas  or  marine  parades,  1300, 

1301. 
sponge  law,  1289,  1290. 
to  prevent  aliens  fishing  in  Alaskan  waters,  1289. 
to  protect  accused  extradited  from  foreign  govern- 
ment, 1167. 


NAVAL  FORCES— Continued. 

Employment  of,  to  protect  customs,  1172. 
to  protect  fur  seals,  1387. 

timber,  1088. 
to  return  fugitives  from  service  or  labor,  994. 
to  suppress  insurrection,  1169. 
Marine  Corps  headquarters  part  of  Naval  Establish- 
ment, 331. 
President's  orders  executed  by  Secretary  of  the  Navy, 

342. 
Public  Health  Service;  duties  during  war,  1279. 
Regulations  governing;  power  of  Congress  and  Execu 

tive,  .59,  195,  784,  787. 
Transportation  of  explosives,  1345,  1346. 
War-time  oITenses  relating  to;  espionage,  etc.,  1482-1490. 
NAVAL  HOME: 

Deceased  inmates;  effects  of,  1395. 
Employment  of  beneficiaries,  1294. 
Establishment  of,  authorized,  1159,  1160. 
Pensions  of  inmates,  1154-1156,  1261,  1395. 
Regulations  for  government  of,  1160. 
Sales  and  rental  of  property;  proceeds  to  naval  pension 
fund,  1472. 
NAVAL  HOSPITAL  FUND: 

Deductions  from  pay  for,  953, 1159. 
commandant's  clerks,  904. 
Naval  Reserve  Force,  814. 
persons  entitled  to  medical  attendance,  904. 
Fines  credited  to,  1159. 
Forfeitures,  desertion,  credited  to,  1273. 
Pensions  of  inmates,  naval  hospitals,  1261. 
Rations  of  patients  credited  to,  898. 
NAVAL  HOSPITALS: 

Commanding  officer  may  convene  courts  and  inflict 

punishments,  1441. 
District  of  Columbia;  procurement  of  fuel  for,  1530. 
Female  nurses  eligilile  for  duty  at,  1303,  1304. 
General  provisions  relating  to,  1159-1163. 
Pensions  of  inmates,  1160,  1161,  1261. 
Purchase  and  erection  of,  1159, 1160. 
Rations  allowed  to,  for  inmates,  1160. 
Secretary  of  the  Nav'y,  supervision  over,  1159. 
Treatment  of  civil  employees  by  United  States  hos- 
pitals and  medical  officers,  1468. 
NAVAL  INTELLIGENCE: 

Publication,  number  of  copies  to  be  printed,  1272. 
NAVAL  MILITIA: 

Convening  courts-martial  on  naval  vessels,  65. 
Court-martial  jurisdiction  over,  62,  64. 
Decisions  relating  to,  69-71 . 

Enlisted  men  detailed  to  duty  with;  additional  to 
enlisted  strength,  536. 
in  active  service,  are  enlisted  men  of  the  Navy,  5:59. 
Laws  relating  to  repealed,  1455, 1508. 

temporarily  revived,  1546. 
Members  of,  attending  as  witnesses  before  naval  courts 

martial,  414. 
Naval  Reserve  Force  members  may  belong  to,  in 

States,  etc.,  1530. 
Power  of  Congress  over,  70. 
Purposes  for  which  may  be  used,  69. 
Repeal  of  laws  relating  to,  1455,  1508. 
Service  in,  not  naval  service,  588. 
Temporarily  part  of  Naval  Reserve  Force,  1546. 
Vessel  loaned  to;  use  of  to  maintain  law,  114. 
NAVAL  OBSERVATORY: 
Board  of  Visitors,  1276. 
Congressional  Record  furnished  to,  1235. 
Facilities  allowed  students,  1218. 
General  provisions  relating  to,  390-393. 
Observation  s  of;  number  of  copies  to  be  printed,  1235. 


1644 


INDEX. 


NAVAL  OBSERVATORY— Continued. 

Regulations;  prepared  by  board  of  visitors  for  Secre- 
tary of  the  Navy,  1276. 
Superintendent,  is  commandant  of  a  naval  station,  391 . 
is  lino  officer;  rank,  1276,  1277. 
pay  of,  390. 
NAVAL  OPERATIONS: 

See  Chkfof  Naval  Opcralions. 
NAVAL  PENSION  FUND: 

Credited  with  unclaimed  money,  deceased  inmates  of 

Naval  Home,  1395. 
Funds  of  deceased  naval  personnel  credited  to,  1503. 
General  pro\isions  relating  to,  llO:?,  1146,  1153-1156, 

1201. 
Proceeds  of  sales,  etc.,  credited  to,  1472. 
NAVAL  PETROLEUM  RESERVES: 
Leases,  etc.,  1532,  1533. 

Proceeds  from  leases  of,  credited  to  Miscellaneous  Re- 
ceipts, 1533. 
Proceeds  from;  use  of;  fimd  created,  1399. 
Use  of,  by  leasing,  etc.;  sale  of  products,  1545. 
NAVAL  RESERVATIONS: 
See  Reservations. 

Alaskan  coal  lands;  reserved  for  tinvj,  1547,  1548. 
Indianhead,  jurisdiction  of  United  States,  294. 
Jurisdiction,  292-294. 

Jurisdiction,  navy  yards  and  stations,  292. 
Leases  granted  by  Secretary  of  the  Nav-y;  oil,  min- 
eral, or  phosphate  lands  excepted,  1419. 
Lease  of  petroleum  reserves,  etc.,  1532,  1533. 
Offenses  committed  in;  criminal  code,  1348-1351;  1353- 

1354. 
Oil  lands;  development  of;  leases;  disposal  of  prod- 
ucts, etc.,  1545. 
Petroleum  reserves;  use   of  proceeds;  fund   created, 

1399. 
PuIjUc  land  provisions  not  applicable  to,  1087. 
State  laws  applicable  in;  criminal  code,  1351. 
Transfer  of,  to  other  departments;  295, 
NAVAL  RESERVE: 

Class  of  Naval  Reserve  Force,  1509. 

quaUfications  for,  etc.,  1451,  1452. 
General  provisions  relating  to;  whether  superseded  by 

later  law,  etc.,  1404, 1405. 
List  of  persons  eligible  for  appointment  in  time  of  war; 

1392,  1393. 
Repeal  in  part  of  law  estabUshing,  1455. 
NAVAL  RESERVE  FLYING  CORPS: 

General  provisions  relating  to,  1454. 
NAVAL  RESERVE  FORCE: 
SeePay  of  Navgl  Establishment. 

Active  service;  credited  to  enlisted  men,  warrant  offi- 
cers and  pay  clerks.   Navy  and  Marine  Corps, 
1529,  1530. 
diu'ing  peace;  afloat;  confirmed  members,  1510. 
other  than  training;  no  retainer  pay  allowed, 
1510. 
during  war,  1443. 

or  emergency,  1447. 

Naval  Auxiliary  Reserve,  1452. 
enlisted  ratings,  authorized  to  supply  deficiencies 

in  Navy,  1548, 1549. 
enrolled   members;  subject   to    Navy   laws   and 

regulations,  1511. 
for  confirmation,  1444,  1445. 
for  confirmation  and  efficiency.  Naval  Coast  De- 
fense Reserve,  1453. 
for  confirmation  and  efficiency.   Naval   Reserve 

Flying  Corps,  1454. 
for  confirmation;  Naval  Reserve,  1452. 
lor  efficiency;  Fleet  Naval  Reserve,  1552. 


N.4VAL  RESERVE  FORCE— Continued. 

Active  service  for  efficiency;   Naval  Auxiliary  Re- 
serve, 1452. 
for  efficiency;  Naval  Reserve,  1452,  1509. 
for  training,  1444. 

enrolled  members  of  Fleet  Naval  Reserve,  1449. 
members  reUeved  from  by  Secretary  of  the  Navy, 

1510. 
officers  counted  as  part  of  commissioned  strength 

of  the  Navy,  1549. 
officers,  in  the  aviation  and  auxiliary  service,  1549. 
on  shore,  restricted,  1528. 
pay;  computation  of  service  for,  1511. 
Age  for  disenroUment,  1510. 

for    enrollment;  imder    instruction    in    summer 

schools  for  boys,  1546. 
requirements  for  Naval  Reserve,  1509. 
Allowances  not  reduced  by  appointment  as  officers  in, 

1444,  1451. 
Appointments;  examinations  required  for,  1445. 
former  officers  and  midshipmen,  1445. 

Fleet  Naval  Reserve,  1448. 
how  made,  1444. 

members  in  Fleet  Naval  Reserve,  1451. 
Appropriation  credited  with  retainer  pay  withheld; 

use  of,  1552. 
Auxiliary  service;  active  duty  authorized  in,  1549. 
vessels  of  United  States;  officers  and  men  must 
belong  to  Reserve,  1448. 
Aviation  service;  active  duty  authorized  in,  1549. 
Badge  issued   members;    unauthorized   wearing  of, 

1447. 
Classes  in,  1442,  1443. 

Command;  restrictions  on.  Naval  Auxiliary  Reserve, 
1453. 
Naval  Coast  Defense  Reserve  and  Naval  Reserve 
Flying  Corps,  1511. 
Commissions  issued  members  of  the  Fleet  Naval  Re- 
serve, 1451. 
Commissioned  officers;  appointment  of,  1444. 

eUgible  for  membership  on  courts-martial,  1494. 
Confirmation  in  grade;  instruction  prior  to,  1444. 
requirements  for,  1444, 1445. 
requirements  for.  Naval  Auxiliary  Reserve,  1452. 
Court-martial  jurisdiction  after  release  from  active 

duty,  976. 
Death  gratuity  law  not  applicable  to,  1547. 
Dental  Reserve  Corps  memberstransferred  to,  15(K). 
Discharge,  Fleet  Naval  Reserve;  restrictions  on,  1451. 
on  request;   refund  of  clothing  gratuity,  1444, 
1447. 
DisenroUment  for  age,  1510. 
Engineering  duties,  1443. 

EnUsted  man.  Navy;  transferred  to,  871, 1449, 14,54. 
in  Navy  or  Marine  Corps;  travel  pay  allowed, 
1551,  1552. 
Enrolled  members;  laws  and  regulations  governing, 

1511. 
Enrollment;  term  of,  1444. 

to  be  for  general  service  only,  1549. 
Examination  for  appointment  and  promotion,  1445. 
for  appointment  to  office  in;  members  of  Fleet 

Naval  Reserve,  1451, 
for  confirmation,  1444,  1445. 
for  provisional  rank,  1444. 
Examining  board  for  appointment  and  promotion  in; 

how  constituted,  14-15. 
FaiUng  to  perform  duty  for  maintaining  efficiency; 
retainer  pay  withheld,  1552. 
to  train;  retainer  pay  withheld,  1546. 
Fleet  Naval  Reserve,  1448-1451. 


1645 


INDEX. 


NAVAL  KESERVE  FORCE-Continued. 

Fleet  N'uviil  Reserve,  minimum  sonice  for  mainte- 
nance of  efTiciency,  l'>o2. 
( icneral  provisions  relating  to,  1442-1455. 
liratuitics  not  reduced  by  appointment  to  office  in, 

1444,1451. 
Laws  and  regulations;  members  subject  to,  1446, 1447, 

1451. 
Line  officer  for  deck  or  engineering  duties,  1443. 
Marine  Corps  Reserve,  145-1,  1455. 
Medals   of  honor,   etc.;  additional   pay   to   enrolled 

persons,  1521. 
Medical  board  for  appointment  and  promotion,  1445. 
Medical  Reserve  Corps  members  transferred  to,  1509. 
Members;  character  of  service  for  which  enrolled,  1453. 
citizenship;    obUgation   assumed;   naturalization, 

1443. 
may  hold  public  employment,  except  in  mOitary 

service,  1440. 
may  revert  to  status  in  regular  Navy  or  Marine 

Corps,  1529,  1530. 
subject  to  naval  laws,  etc.,  1446,  1447, 1451. 
Midshipmen  appointed  from  members  of,  744,  1502. 
MUeagc  and  transportation  when  released  from  active 

duty,  1415. 
National  ensign;  pennant  not  to  be  flown  in  lieu  of, 

144S. 
National  Naval  Volunteers  transferred  to,  1508, 1509. 
Naval  Auxiliary  Reserve,  1452,  1453. 
Naval  Coast  Defense  Reserve,  1453-1454. 

restrictions  on  exercise  of  command,  1511. 
Naval  Jlilitia;  members  may  belong  to,  1530. 

temporarily  made  part  of,  1546. 
Naval  Reserve;  age  limits;  minimum  active  service, 
1509. 
qualifications,  etc.,  1451,  1452, 1509. 
repeal  of  old  law,  in  part,  1455. 
Naval  Reserve  Flying  Corps,  1454. 

restrictions  on  exercise  of  command,  1511. 
Oaths;  allegiance,  1444. 

authority  to  administer,  1240. 
Pay,  808-815. 

active  service;  computation  of  longevity.  1511. 
and  allowances  for  active  duty,  1447. 
when  not  actively  employed,  1447. 
Pennant  or  flag  for  merchant  vessels  commanded  by 

members,  1448. 
l^rccedence  of  members  with  each  other  and  regular 

service,  1511. 
Promotions;  examinations  required  for,  1445. 

in  time  of  peace  not  above  lieutenant  commander, 

1510. 
in  time  of  war  or  emergency  above  lieutenant 
comtmander,  1510. 
Provisional  grade  on  enrollment,  1444. 
Qualifications;  enrollments  to  be  for  general  service 
only,  1549. 
for  Fleet  Naval  Reserve,  1448. 
for  Naval  Auxiliary  Reserve,  1452. 
for  Naval  Coast  Defense  Reserve,  1453. 
for  Naval  Rcsers-e,  1451,  1509. 
for  Naval  Reserve  Flying  Corps,  1454. 
for  Volunteer  Naval  Reserve,  1454. 
Rank  of  members  limited  to  lieutenant  commander, 

1509. 
Ranks  and  ratings,  1443. 
Reenlistment  in  regular  Navy  after  service  in  Fleet 

Naval  Reserve,  1450. 
Rcenrollment  of  members  in  rank,  grade  or  rating 

held  on  last  enrollment,  1509. 
Regulations  governing,  1443. 


NAVAL  RESERVE  FORCE— Continued. 

Regulations  governing  enrollment  in  Naval  Coast  De- 
fense Reserve,  1453. 
examinations  for  confirmation,  1444,  1445. 
promotions  in,  1510. 

traveling  allowance.  Fleet  Naval  Reserve,  1449. 
Regulations  of  Navy;  members  subject  to,  1446,  1447, 
1451,  1511. 
subject  to  while  wearing  uniform,  1511. 
Release  from  active  duty;  deposits  paid  as  though 

discharged,  S77. 
Repeal  of  old  Reserve  law,  in  part,  1455. 
Retainer  pay,  after  confirmation,  1509. 
before  confirmation,  1445. 
chargeable  to  "Pay   of  the   Navy,"  and  "Pay, 

Marine  Corps,"  1455. 
conditions  of  payment,  1445. 
enrolled  men.  Fleet  Naval  Reserve,  1449. 
Fleet  Naval  Reserve;  increased  on  reenrollment, 
1450. 
reenrollment   without  performing  minimum 
service,  1449. 
forfeited  for  cause,  Fleet  Naval  Reserve,  14.50, 1451. 
increased  for  heroism  and  good   conduct  marks, 

1450. 
increased  on  reenrollment,  1445, 1446. 
Naval  Auxiliary  Reserve,  1453. 
Naval  Reserve  Fljing  Corps,  1454. 
not  allowed  in  time  of  peace  when  on  active  duty 

other  than  training,  1510. 
not  reduced  by  appointment  as  officer,  1444,  1451. 
service  credited  for,  1509. 

transferred  members  of  Fleet  Naval  Reserve,  1450. 
when  paid,  1446. 
while  on  active  duty,  1445. 
withlield  for  cause,  1546,  1552. 
Retirement,  enrolled  members,  20  years'  service,  1440. 
limited  to  physic  al  disability,  1509, 1510. 
of  officers  for  physical  disabOity,  1549. 
of  transferred  members;  30  years' ser-\-ice,  1449, 1451. 
service  credited  for,  1509. 
Schools  of  instruction  for  reservists  and  applicants,  144S. 
Service  credited  for  retainer  pay  and  retirement,  1509. 
credited  to  enlisted  men  transferred  to,  1449. 
to  members  for  active  duty  pay,  1511. 
Summer  schools  for  boys;  students  to  enroll  in  Naval 

Reserve  Force,  1546. 
Temporary   appointments  in   Navy   durmg  war  or 

emergency;  clothing  gratuity  not  checked,  1510. 
Term  of  enrollment,  under  instruction  in  schools  for 

boys,  1546. 
Transfer  betweeeti  classes  of,  1448. 

of  enlisted  men  to;  constructive  service  credited, 

1449. 
of  enlisted  men  to  Fleet  Naval  Reserve,  1449. 
of  enUsted  men  to  Naval  Reserve  Flying  Corps, 

1454. 
of  officers  to  Naval  Reserve  Flying  Corps,  1454. 
of  officers  to  regular  Navy,  1549,  1550. 
to  regular  Navy;  age  requirements,  1551. 
to  regular  Navy  or  Marine  Corps,  1529. 
to  regular  Navy;  rank  limited  to  lieutenant,  1550. 
Travel  allowance,  active  service  in  Fleet  Naval  Re- 
serve, 1449. 
Uniform  gratuity,  1510. 

amount  credited;  refund  on  discharge,  1444,  1447. 
not  checked  on  temporary  appoLatment  to  Navy 
during  war  or  emergency,  1510. 
Uniform  outfit,  Fleet  Naval  Reserve,  1451. 

wearing  of,  when  not  in  active  service;  oflfenses 
committed,  1511. 


1646 


INDEX. 


NAVAL,  RESERVE  FORCE— Continued. 

Vessels;  contracts  with  owners  for  use  of,  by  Navy 
during  war  or  emergency,  1453. 
owners  of,  may  eiiroU  in  Naval  Coast  Defense  Re- 
serve, 1453. 
Volunteer  Naval  Reserve,  1454. 
Warrant  officers;  appointment  of,  1444. 

appointment  of,  in  Fleet  Naval  Reser\-e,  1451. 
Women  enrolled  in,  1531. 
NAVAL,  SERVICE: 

See  Naval  Forces;  Navy. 

Defined;  Marine  Corps  included,  920,  921. 

to  include  service  on  any  vessel  pursuant  to  com- 
petent orders,  1493. 
Marine  officers  who  resign  from ,  may  be  reinstated ,  1461 . 
NAVAL  SOLICITOR: 

See  Judge  A,  dvocate  General. 
Office  of,  in  Department  of  Justice,  282,  359. 
NAV.4JL  STATIONS: 

See  Navy  yard  and  stations. 
NAVAL  STOREKEEPERS: 

Appointment  and  number  of,  531. 
NAVAL  SUPPLY  ACCOUNT: 

Appropriations   credited    with    appraised    value    of 

stores,  etc.,  1397. 
Creation  of,  1366, 1367. 
Losses,  how  charged,  1557. 
Prices  at  which  material  expended,  1557. 
Sales  from,  credited  to  naval  supplj^  account  fund,  1557. 
NAVAL  SUPPLY  ACCOUNT  FUND: 

Creation  of;  amount;  charges  and  credits,  1557. 
NAVAL  SURGEONS: 
See  Boards. 

Board  of;  examinations  for  promotion,  707-710. 
Board  of;  Secretary  of  the  Navy  may  act  for  President, 
1481, 1482. 
NAVIGATION: 

See  Bureaus;  Chiefs  of  bureaus. 
Collisions;  duties  of  master;  penalty,  1215, 1216. 
Derelicts  and  wrecks;  marking  and  removal  of;  Inter- 
national agreement,  1223. 
General  provisions  relating  to,  1125-1131. 
Hydrographic  Office;  duties  for  improving  means  of, 

387. 
Hydrographic  Office  publications;  preparation  and 

sale  of,  1236, 1237. 
Laws  and  regulations;  Shipping  Board  to  reeoiamend 

changes  to  Congress,  1467. 
License  regulations,  etc.,  not  applicaijle  to  officers  of 

public  vessels,  1135. 
Maps,  charts  and  nautical  books,  prepared  and  sold 

by  Hydrographic  Office,  390. 
Pilotage;  State  discrimination  against  national  vesseLs 

forbidden,  1130. 
Regulations  to  protect,  against  target  practice,  proving 
operations,  etc.,  1519. 
transportation  of  explosives,  etc.,  on  navigable 
waters,  1519. 
Rules  for  preventing  collisions  at  sea;  international, 
1204-1215. 
Great  Lakes,  etc.,  1240-1246. 
harbors,  rivers  and  inland  waters,  except  Great 
Lakes  and  Red  River  of  the  North,  etc.,  1251- 
1261. 
motor  boats,  1355-1358. 

on  the  Red  River  of  the  North  and  rivers  emptying 
into  the  Gulf  of  Mexico  and  their  tributaries, 
1125-1130,  1135, 1246,  1247. 
Rules  governing,  certain  inland  waters,  1246, 1247. 
Pearl  Harbor,  13^2. 
regattas  or  marine  parades,  1300, 1301. 


NAVIGATORS: 

Detail  of  officers  to  naval  vessels,  577. 
Hydrographic  Office  to  provide  manuals  for  use  of,  387. 
Naval  vessels  to  assist,  in  distress,  775. 
Sale  of  publications  to,  Hydrographic  Office,  1236, 1237. 
NAVY: 

See  Articles  for  the  Government  of  the  Navy;  Courts- 
Martial;  Enlisted  men;  Marine  Corps;  Naval  forces; 
Naval  Reserve  Force;  Officers  of  the  Marine  Corps; 
Officers  of  the  Navy;  Retired  enlisted  men;  Retired 
officers;  Staff  officers;  Vessel^  of  the  Navy. 
Appointments  in  regular  Navy  during  war,  1392. 
Coast  and  Geodetic  Survey  transferred  to,  during  war 

or  emergency,  1479, 1480. 
Coast  Guard  operating  as  part  of;  expenses;  adjust- 
ment of  appropriations,  1456. 
operating  as  part  of;  laws  to  which  subject,  14.55. 
part  of,  705,  706. 

when  serving  with,  539. 
Compulsory  service  in,  47. 

involuntary  servitude,  136. 
Congress  to  make  regulations  for,  58. 

to  provide  and  maintain,  47. 
Constitution  appUcable  to,  68. 
Defined,  .539. 

classes  of  personnel  included,  928. 
to  include  Coast  Guard,  1524. 
whether  Marine  Corps  included,  962,  963. 
Drafted  officers  of  merchant  vessels;  pensions,  wages, 

etc.,  1249. 
General  provisions  relating  to,  784^-790. 
Laws,  appUcable  to  Marine  Corps,  962. 

governing,  where  found,  1. 
Lighthouse   Service  transferred    to  juriscUction   of, 

during  war  or  emergency,  145<),  1457. 
Line  officers;  grades  of,  447. 
Marine  Corps  normally  part  of,  957-960. 
Naval  militia  part  of,  when  serving  with,  539. 
Officer's  responsibihty  for  illegal  acts,  54. 
Procurement  of  suppUes  and  stores  for;  regulations 

governing,  787,  788. 
Public  Health  Service;  duties  duiing  war,  1279. 
Stateinterference  with,  47. 
NA>Tr  AGENTS: 

Estimates  and  appropriations  for  expenses  of,  1103. 
NA\-Y  BANTJS: 

Defined;  ilarine  Band  not  included,  952. 
Not  to  compete  with  civilians,  1304. 
N.WT^  BUILDING: 

See  Buildings;  State,  War  and  Navy  Building. 
District  of  Columbia  laws  appUcable  to,  332. 
General  provisions  relating  to,  331,  332. 
Superintendent  of,  332. 
Supervision  of,  1.502, 1.503. 
NAVY  CROSSES: 

President  maj'  delegate  power  of  awarding,  1522. 
Provisions  relating  to,  1521-1523. 
NAVY  DEPARTMENT: 

See  Appropriations;  Bureaus;  Chiefs  of  Bureau.i;  Chief 
of  Naval  Operations;  Civil  establishment;  Contracts; 
Estimates;  Executive  departments;  Heads  of  depart- 
ments; Hydrographic  Office;  Judge  A  dvocate  General; 
Pay  of  civil  establishment;  Printing  and  binding;  Public 
property;  Records;  Reports;  Secretary  of  the  Navy. 
Accounts  of  expenditures  to  show  disbursements  of 

each  bureau,  1102, 1103. 
Appropriations  controUed  and  expended  by  direction 
oftheSeoretar^^  1104. 
for  each  bureau  to  be  kept  separate  in  Treasury, 

1104. 
permanent,  1106,  1107. 


1647 


INDEX. 


NAVY  DEPARTMENT-Continued . 

Assistant  Secretary,  appointment  of,  120-t. 
duties  of,  1217. 

Supreme  Court  reports  and  digests  furnished  to, 
1365. 
Bonds  of  disbursing  officers  may  be  increased  by  Pres- 

dcnt,  109S. 
Kulldings  occupied  by,  331,  332. 

super\-ision  of,  332,  l')02,  1503. 
Business,  distribution  of,  357. 

Clerks  and  employees:  general  provisions  relating  to, 
334-341. 
number  and  compensation  of,  334,  335. 
Commissions  of  officers  prepared  and  sealed  by,  1248. 
Congressional  Record  furnished  to,  1235. 
Contracts  to  be  filed  in  offices  of  accounting  officers, 

1118. 
EstabUshed  as  an  executive  department,  189. 

at  the  seat  of  Government,  331. 
Estimates,  385. 

items  of  expenditure  for  which  submitted,  1102, 
1103. 
General  provisions  relating  to,  331-393. 
Hours  of  business,  201. 

Hydrograpliic  Office  attached  to  Bureau  of  Navigation, 
1236. 

Judge  Advocate  General's  office;  duties,  etc..  Use, 

1187. 
Legal  advice;  Attorney  General  to  provide,  321. 
Marine  Corps  not  a  part  of,  192,  331,  957. 
Medals  of  honor  prepared  under  direction  of,  512. 
Naval  officers  appointed  as  chiefs  of  bureaus,  362. 
detailed  to  duty  in,  364,  389,  466. 
not  part  of  department,  333. 

unless  holding  statutory  position,  213,  215. 
Not  a  naval  station,  332. 
Official  Register  of  the  United  States  to  befurnished  to, 

1236. 
Permanent  annual  appropriations,  1106, 1107. 
Property,  books  and  records:  custody  of,  352. 
flags  captured  from  enemy,  381,  790. 
loaned  to,  380. 

loan  of  scientific  instruments,  1201. 
supplies  purchased  and  issued  without  regard  to 

bureaus,  1216. 
transfer  between  bureaus,  with  or  without  charge, 
1203. 
Records;  contracts  to  be  filed  in  offices  of  accounting 
officers,  1118. 
custody  of,  361. 
destroying    summary    court-martial,    after    two 

years,  1009,  1311. 
desired  for  use  in  court,  424. 
evidence  before  courts,  1009, 1010,  1023, 1036. 
promotion  boards  to  examine,  722,  723. 
publication  of,  1295. 

report  of  survey  upon  value  of  enemy  vessels,  1477. 
submitted  to  President,  promotion  cases,  724. 
transferred  from  other  departments,  1283,  1295, 

1389. 
treatment  and  character  of  diseases,  466. 
Session  laws  furnished  to,  1235. 
Statutes  at  Large  furnished  to,  1235. 
NAVY  aiAIL  CLERKS: 

Assistants;  designation  of,  etc.,  1306. 

Bonds,  1306,  1387,  1388. 

Designation  of;  duties;  oath;  bond;   compensation; 

regulations  governing,  1306. 
Duty  on  shore,  1513,  1514. 

with  expeditionary  forces,  1474. 
Jurisdiction  of  accounting  officers,  237. 
Mates  eligible  for  appointment,  522. 


NAVY  MAIL  CLERKS— Continued. 

Oath  of  office,  328,  1306. 

Pay  of,  865,  1306. 
NAVY  ORDERS: 

Procurement  of  supplies  during  war,  1413. 
of  vessels,  etc.,  during  war,  1475, 1476. 
NAVY  PAY  OFFICE: 

Not  an  office  of  Navy  Department,  359. 
N.AATT  PERSONNEL  ACT: 

March  3, 1899,  text  of,  1263-1271. 
NAVY  REGISTER: 

See  licgislcr. 

Advancement  for  war  service  designated  in,  1275,  (276. 
History  and  definition  of,  044-016. 
Printing  of  extra  number  authorized,  1235. 
Retired  officers;  names  of,  wholly  retired,   omitted 
from,  631 . 
Navy,  to  be  borne  on,  631. 
NAVY  REGULATIONS: 

See  Regulations. 
NAVY  YARDS  AND  STATIONS: 

See  Civil  establishment;  Pay  of  civil  establishment. 
Abolishing  navy  yards  without  legislative  authority, 

779. 
Aid  or  executive  of  commandant,  669. 
Aid  or  executive  of  commandant:  construction  officer 

ineligible,  508,  779. 
Apprentices  at,  are  not  enlisted  men,  538. 
Appropriations   for   maintenance   of  naval  training 

stations,  1530. 
Boards  to  report  upon  repairs  to  vessels,  776,  777. 
Captain  of  the  yard:  additional  pay  as  aid,  670. 
Civil  engineers  appointed  fpr  duty  at,  531. 
Civil  establishment;  appointment  of  master   work- 
men, 779,  780. 
leave  of  absence  outside  United  States;  cumula- 
tive, 1417. 
laborers,  employment  of,  780. 
no  increase  before  elections,  1180. 
nimiber   and   rates   of  pay  fl-xed   by  Secretary, 

1312,  1313. 
pay,  leave,  holidays,  etc.,  781-783. 
political  opinion  not  ground  for  discharge,  783. 
preference  for  appointment,  1313. 
wages,  how  fixed,  1177. 
Commandant,  appointment  of,  779. 
construction  officer  not  eligible,  507. 
deck  coiu'ts  ordered  by,  1308. 
duty  of  example  and  correction,  978, 979. 
general  court-martial  convened  by,  1310,  1442. 
marine  officer  ineligible,  955. 
oaths  administered  by,  1240. 
precedence  of,  669. 
Definition  of,  779. 

Divine  service  to  be  conducted  on  Sunday,  979. 
Eight-hour  law.  Government  work,  1117,  1219,  1220, 

1474. 
Elections;  force  not  increased  before,  1180. 
Enlisted  men;  employment  of,  when  ships  are  docked 

or  laid  up  for  repairs,  1383. 
Espionage;  illegally   obtaining   information   concern- 
ing, etc.,  1482. 
First  lieutenant;  detail  of  officer  to  duty  as,  577. 
General  provisions  relating  to,  772-783. 
Holidays  allowed  per  diem  employees,  1194, 1198. 

regulations  governing  pay  on,  787. 
Lands  purchased  for;  title  and  jurisdiction,  282. 
Leave  of  absence,  civil  employees,  1464. 
Line  officers  detailed  to  duty  under  staff  officers  at, 

1359. 
Mandamus  against  board  of  labor  employment  at,  780. 


1648 


INDEX. 


NAVY  YARDS  AND  STATIONS— Continued. 
Mare  Island;  pay  of  commandant,  815, 1177. 
Naval  Observatory  held  to  be  a  naval  station,  391. 
Naval  officers  not  to  be  appointed  to  civil  positions, 

779,  780. 
Navy  Department  is  not  a  naval  station,  332. 
Not  part  of  an  executive  department,  192. 
Offices  at  navy  yards  may  be  abolished  by  Secretary 

oftheNa^T,  533. 
Overhead  charges  distributed  between  appropriations, 

139S. 
Permanent  station,  defined,  1536. 
Political  contributions  prohilnted,  783. 
Power  plants  consolidated  under  Bureau  of  Yards 

and  Docks,  1282. 
Property  on  hand;  annual  report  of,  381. 
Repair  of  vessels,  776. 

for  Shipping  Board,  1466. 
Rope  wallis;  superintendent  of,  779,  780.  * 

Shipping  Board  may  have  vessels  repaired  and  con- 
structed in  na^-y  j'ards,  1466. 
Steam  engines;  estimates  and  appropriations  for  re- 
pairs and  attendance,  1103. 
Storekeepers  appointed  for  duty  at,  531. 
Trading  at,  for  private  benefit;  punishment,  Navy, 

989. 
Transfer  of  property  from  one  yard  to  another  requires 

legislative  authority,  779. 
Useless  papers;  disposal  of,  1401. 
Vessels  under  construction  at,  not  completed  because 

of  expense,  1190. 
Washington,  D.  C;  model  tank  for  experiments  at, 
1250. 
use  as  a  manufacturing  yard,  1189. 
Young   Men's    Christian    Association   buildings   in, 
1366. 
NEGLECT  OF  DUTY: 

Dismissal  mandatory  on  conviction,  in  certain  cases, 
1287. 
NEGLIGENCE: 

See  Ankles  for  the  government  of  the  Navy. 
Sti'anding  or  hazarding  naval  veosel,  or  running  upon 
rock  or  shoal,  985. 
NEUTRALITY: 

Enforcement  of,  1486-1488. 
Naval  forces  employed  to  enforce,  1319. 
Offenses  agamst,  1318-1320. 
NEWSPAPERS: 

Advertising,  District  of  Columbia,  1123. 

estimates  and  appropriations  for.  Navy,  1103. 

for  foreign  supplies,  1114. 

for  proposals  for  naval  supphes  and  transportation, 

nil. 
rates,  11&4. 

District  of  Columbia,  1187. 
sale  of  naval  vessels,  1192. 
written  authority  required  for,  1124. 
Expenditures  for,  limited,  225. 
Payment  for  subscriptions  in  advance,  1401. 
PubUcation  of  receipts  and  expenditures  relating  to 

Navy,  262. 
Restrictions  on  purchase  of,  1073. 
NEW  TRIAL: 

Accused  requesting;  former  jeopardy,  121. 
Court-martial,  1047. 

Court-martial;  members  of  former  court  ineligible,  1018. 
NEW  YORK  HARBOR: 

Naval  officer  detailed  as  supervisor  of,  1198,  1199. 
NITRATE  SUPPLY: 

Product  of  plants  available  for  Navy,  1413. 


N03nNATI0N; 

See  A  ppointments:  Midshipmen. 
Candidates  for  midsliipmen,  744-749,  1294,  1295. 
Confirmation  of  Senate  indirectly  given,  735. 
Ineligible;  effect  of  confirmation,  96. 
NONCOManSSIONKD  OFFICERS: 

Petty  officer  of  Na\'y  included,  441. 
NON  COMPOS: 

Insane  person  defined,  185. 
NOTARIES  PUBLIC: 

Employment  as  attorneys  before  executive  depart- 
ments, 1295. 
States  and  territories;  authorized  to  administer  oaths 

and  take  acknowledgments,  1072. 
States;  oath  of  allegiance  may  be  administered  by,  1093. 
NUMBERS: 

See  Advance mcTit:  Loss  of  numbers. 
NURSE  CORPS  (FEMALE): 
Commutation  allowed,  1482. 

Compensation  for  death  or  disability,  1498-1501,    1546, 
1.547. 
under  War  Risk  act  in  lieu  of  employees'  compen-' 
sation  benefits,  1.500. 
Deaih  gratuity  law  applicable  to,  1546, 1547. 
Organization,   appointments,   examinations,   duties, 

pay,  etc.,  13a3,  1304. 
Pay,  allowances,  leave  of  absence,  8C7,  808. 
Relative  rank  in  Army,  808. 
OATHS: 

Acknowledgment  of  deeds  in  Guam  and  Samoa,  1291, 

1292. 
Affirmation  satisfies  requirement,  185. 
Allegiance,  Naval  Reserve  Force,  1444. 
officers  and  men  of  the  Nax^y,  1271. 
persons  prosecuting  claims  against  United  States, 
1093. 
Authority  to  admmister,  217-219,  1072,  1073, 1240. 

prosecution  of  claims  againsi  United  States,  1093. 
Chief  clerks  may  administer  oaths  of  office,  1215. 

to  accounts  for  travel  and  other  expenses,  1386. 
Claims  for  lost  or  damaged  property,  naval  personnel, 

1493. 
Clerks  designated   may  administer   to   accounts   for 

travel  and  other  expenses,  1386. 
Contracts;  officer  filing  return  in  Returns  Office,  1119. 
Counsel  required  to  take  when  appointed  by  Attorney 

General,  325. 
Courts  of  inquiry  may  administer,  1055. 

members  and  judge  advocate  to  take,  1056. 
Deck  courts  may  administer,  1308. 
Enlisted  men.  Marine  Corps,  935. 

Navy,  1271. 
Examining  board;  statements  submitted  to,  723. 
False  acknowledgments  by  officer  authorized  to  ad- 
minister, 1323. 
in  connection  with  claims  against  United  States, 
990. 
General  courts-martial;  members  and  judge  advocate, 

1019. 
Homestead  laws;  administration  of,  108:J. 
Investigating  officers  may  administer,  217. 
Minor  enlisting  in  Navy,  1402,  1403. 
Naval  officers  authorized  to  administer  for  purposes  of 
naval  administration,  1240. 
may  administer  to  postal  employees,  328. 
Officers  authorized  to  administer,  217-219, 1240. 
Of  office;  chief  clerks  to  administer,  1215. 

civilian  appointed  on  retired  list,  .\rmy,  633. 
civil,  military,  or  naval  service,  1065,  1066. 
construed  as  acceptance  of  appointment,  96,  207. 


1649 


INDEX. 


OATHS— Continued . 

Of  oHicc;  general  provisions  relating  to,  337-338. 
Marine  Corps,  935. 
midshipmen,  748. 
naval  oflicers,  1271. 

Navy  mail  clerks  and  assistants,  328,  1306. 
omission  of  postal  employees  to  take,  does  not  allett 

criminal  liability,  1345. 
Postal  Service,  328. 
promotion,  654. 

promotion  of  civil  employee,  1215. 
reappointment  of  officer,  97. 
violated  by  officer  exceeding  jurisdiction,  320. 
Omitted;  statement  of  candidate  for  promotion,  724. 
Persons  prosecuting  claims  against  United  States  to 

take,  1093. 
Retiring  board  members,  603. 

Secretary  of  the  Navy  may  empower  oflBcers  to  ad- 
minister, 1240. 
Selection  board  members  required  to  take,  1431. 
Special  counsel  in  foreign  coimtry,  224. 
Summary  courts-martial;  members  and  recorder,  1006. 
Superintendent  of  Naval  Observatory  may  administer, 

391. 
Witnesses  before  any  naval  court-martial,  1021. 
summary  courts-martial,  1006. 
OBEDIENCE: 

Commanding  officers  entitled  to,  from  officers  having 

earlier  date,  576. 
Honorable  discharge  testimonial  of,  573. 
Petty  officers  entitled  to,  525. 
Preference  in  granting  leave  of  absence  to  faithful  and 

obedient,  574. 
Retired  officer  entitled  to,  when  commanding  in  time 
of  war,  660. 
OBITER  DICTA: 

Attorney  General's  opinions,  311. 
OBSCENE: 

Books,  etc.,  importing  or  transporting,  1347. 
Indecent,  etc.,  matter  unmailable,  1340. 
on  wrappers  of  mail  or  postals,  1341. 
I-iterature,  etc.,  circulation  of,  1353. 
OBSERVATIONS: 

Naval  Observatory;  number  of  copies  to  be  printed, 
1235. 
OBSERVATORY: 

See  Naval  Observatory, 
OCEAN  AND  LAKE  SURVEYS: 
Hydrographic  Office,  duties  of,  388. 
OCEAN  aiAIL  VESSELS: 

Commandeered  by  the  Navy  for  use  as  transports  or 

cruisers,  1217. 
Construction  of,  subject  to  approval  by  Secretary  of 

the  Navy,  1216. 
Detail  of  naval  officers  for  duty  on,  1217. 
OFFENDERS: 

Refusing  or  failing  to  bring  to  pimishment  or  to  aid 
others;  punishment,  Navy,  985. 
OFFENSES: 

See  Articles  for  the  Government  of  the  Navy;  Crimes. 
Different  in  degree;  plea  in  bar  of  trial,  120. 
General;  not  specified;  punishment.  Navy,  996-1002. 
On  shore,  against  inhabitants,  punishment.  Navy,  985. 
Violating  both  military  and  civil  law,  120. 
law  of  two  governments,  120. 
OFFICE: 
See  Grades. 

Acceptance  of  incompatible;  effect,  989, 1069. 
Chiefs  of  bureaus.  Navy  Department,  hold  two  offices 
366.  ' 


OFFICE— Continued . 

Civil;  additional  compensation  not  allowed  to  incum- 
bent, 1060-1071,  1177. 
chiefs  of  bureaus,  Navy  Department,  365. 
naval  officers  forbidden  to  hold  emplo^onent  with 

certain  contractors,  1250. 
preference  in  appointment  of  persons  disabled  in 

military  service,  1065. 
restrictions    on    holding;  double    compensation; 
additional  pay,  472,  950,  951, 1066-1071, 1177, 1411. 
Definition,  90,  1009,  1070. 

discharge  of  special  duties  does  not  constitute,  1075. 
distinguished  from  title,  grade,  and  rank,  449,  450, 
837,  910. 
Disqualification  to  hold;  deserter  in  time  of  war,  1077, 
1078. 
sentence  of  court-martial;  remission  of,  1053. 
Foreign  government,  acceptance  of  by  United  States 

of^cer,  75. 
Head  of  department  can  not  abolish,  194. 
Incompatible;  definition  of,  989,  1069. 

naval  office  and  civil  position  in  Navy  Depart- 
ment, 389. 
naval  office  and  diplomatic  or  consular  appoint- 
ment, 579. 
vacancy  created  by  acceptance  of,  215. 
Naval  officers  holding  private  employment,  576. 
Not  property,  124. 

Oath  of;  civil,  military  and  naval  service,  1065,  1066. 
Pay;  additional  not  allowed,  1177. 

of  two  offices  not  allowed,  472,  950,  951,  1066-1071, 
1411. 
Private  emplojrment;  persons  discharged  from  mili- 
tary service,  1065. 
Rank  distinguished,  449,  450,  837,  910. 
Secretary  of  the  Navy  may  abolish  at  navy  yards,  533. 
Territorial;  naval  personnel  not  to  hold,  1075. 
Two  offices;  chiefs  of  bureaus  in  Navy  Department, 
366. 
holding  of,  by  naval  officers  detailed  to  Dominican 

RepubHc  and  Haiti,  1416, 1502. 
holding  of,  by  naval  officers  detailed  to  South 

American  Republics,  1399, 1556. 
incompatible   resignation  implied,  529. 
naval  officer  may  hold  appointment  in  Virgin 

Islands,  1075. 
restrictions  on  double  salaries,  472,  950,  951,  1066- 

1071,  1411. 
retired  officer  and  Member  of  Congress,  643. 
retired  officers  holding,  337. 
Unauthorized;  no  salary  for,  1066. 
OFFICER  AND  GENTLEMAN: 

Conduct  unbecoming;  punishment.  Navy,  998-1000. 
OFFICERS: 

See    Appointments;  Civil   establishment;  Commission; 
De  facto;  Discharge;  Dismissal;  Oaths;  Officers  of  the 
Marine  Corps;  Officers  of  the  Navy;  Pay  of  civil  es- 
tablishment; Pay  of  Naval  Establishment . 
Acceptance  of  appointment  necessary  to  vest  office,  96. 

oath  of  office  constitutes,  96. 
Additional  duties  not  equivalent  to  new  appointment, 
94. 
pay  not  allowed,  1177. 
Appointing  power,  89. 

Biennial  register  of,  required,  228,  1235,  1236. 
Defined,  89, 1010. 

includes  clerks,  90,  413. 

persons  authorized  to  perform  duties,  185. 
President  and  Secretary  of  the  Navy,  1040. 
whether  includes  retired  officers,  224,  438. 
Dismissal,  97. 


1650 


INDEX. 


OFFICERS— Continued . 

Effects  lost  on  sunk  or  captured  vessel,  269. 
Emplo3rment  in  excess  of  appropriations  restricted, 

1104. 
Former,  not  to  prosecute  claims  against  United  States, 

224. 
General  provisions  relating  to,  1065-1073. 
Illegal  acts,  Congress  may  protect  from  responsibility 

for,  57. 
Pay  of  civil,  where  appropriation  inadequate,  204. 
Positions  can  not   be  abolished   without  statutory 

authority,  212. 
Qualifications  of  candidate  final  after  appointment,  96. 
Resignation;  right  of,  99. 
Reinstatement  after  dismissal,  94. 
Responsibility  for  illegal  acts,  54,  78,  350,  351. 
Retired  officers;  whether  "office"  includes,  224,  438. 
Temporary  appointments,  99. 
United  States,  defined,  89. 
Veto  of  bill  restoring  dismissed  officer,  34. 
OFFICERS   AND   ENLISTED  MEN: 

Definition  of,  928. 
OFFICERS  OF  THE  MARINE  CORPS: 

See   Acting   officers;  Additional  number   officer.?;  Ad- 
vancement; AllowaTices;  Appointments;  Army;  Ar- 
ticles for  the  Government  of  the  Navy;  Civil  employ- 
ment;  Courts-martial;  Details;  Dianmsal;  Examina- 
tions; Length  of  service;  Marine  Corps;  Marine  Corps 
Reserve;  Pay    of    Naval    Establishment;  Promotion; 
EanTc;  Retired  officers;  Retirement;  Second  lieutenants. 
Additional  numbers,  929,  1275,  1276,  12S9,  1392,  1458, 
1459. 
war  service,  1275,  1276,  1289. 
Advancement  for  conduct  in  battle  or  heroism,  921, 

933, 1275,  1276. 
Allotments  of  pay  by,  1249. 

Appointment,  922,  925,  1188,  1189,  1270,  1281, 1392. 
commencement  of  pay,  1221, 1222. 
major  general  commandant,  1392,  1460. 
Arrest;  exemption  from,  in  certain  cases,  935. 
Brevet  commissions,  931-933. 
Civil  employment  restricted;  private  companies,  1250. 

office  in  Virgin  Islands  may  be  held  by,  1075. 
Commandant,  215,  928,  929, 1392, 1459,  1460,  1512. 
Computation  of  numbers,  1458,  1459. 
final  fractions,  920,  921,  1428,  1458. 
major  general  commandant  counted  as  senior  to 

colonel,  1459. 
senior  stafi  officers  counted  as  colonels,  1460. 
Counsel  before  courts-martial,  etc.;  punishment  for 

accepting  fee,  1333. 
Detailed  as  assistant  to  chief  of  Naval  Operations,  1418. 

to  Judge  Advocate  General,  1418. 
Detailed  away  from  headquarters;  staff  officers,  921. 
for  service  on  vessels,  954. 
to  Dominician  Republic,  1502. 
to  Haiti,  1416. 
Director  of  civiMan  marksmanship;  appointment,  1465. 
Discharge;  failure  to  pass  professional  reexamination 

for  promotion,  1463. 
Distribution  in  rank,  1458, 1459. 

Dropped  from  rolls  for  unauthorized  absence,  etc.,  1.503. 
Examinations  for  promotion,  711,  924-927,  1270. 
failure  to  pass,  1463. 
physical,  707,  708, 1463. 
Families;  payment  of  death  gratuity  to,  1546, 1547. 
transportation  fiunished  on  permanent  change  of 
station,  1535,  1536. 
Gradesof,  917,  918, 14.58. 

Homesteads;  general  provisions  relating  to,  1083-1087. 
Influencing  legislation;  punishment,  1527. 


OFFICERS  OF  THE  MARINE  CORPS— Cont'd. 
Length  of  service  credited  to,  927,  928, 1535. 
Major  General  Commandant,  215,  928,  929,  1392,  1459, 

1400,  1512. 
Major  generals;  grade  created;  appointments  author- 
ized, 1512. 
National  Guard  officers  appointed  from,  1412. 
Navy  yards  and  vessels;  ineligible  for  command  of,  955. 
Number  of,  917-919,  1416,  1458. 

additional  numbers,  929,   1275,   1276,   1289,   1392, 

1458,  1459. 
computations,  920,  921,  1428, 1458. 
exceeding,  921. 
pay  clerks,  919,  1515. 
power  of  Congress  to  reduce,  921 . 
staff;  appointment,  detail,  etc.,  1460, 146i. 
warrant  officers,  918,  1462,  1479. 
Oaths  administered  by,  217-219,  1240. 

taken  by,  935. 
Official  Register  of  the  United  States  to  contain  names 

and  information  concerning  1235, 1236. 
Pay  and  allowances,  936-951. 
Pay  clerks,  918,  919,  1515. 
Precedence  of,  930,  931. 
Probationary  appointments,  925. 
Promotion;  Army  laws  extended  to,  1219. 
conduct  in  battle  or  heroism,  933. 
date  of  rank,  931,1459 
general  provisions  relating  to,  924-927. 
list;  seniority;  promotions  made  from,  1461. 
physical  incapacity;  retired  rank,  965. 
Punishments  inflicted  by,  without  court-martial,  1441. 
Rank;  date  of,  on  promotion,  931, 1459. 
distribution  in,  1458. 
in  relation  to  the  Army,  930,  931. 
of  senior  staff  officers,  1460. 
on  retirement,  964. 
Rations;  not  entitled  to,  9.54. 
Reappointment  after  resignation,  1461. 
Retirement,  963-971. 

civil  war  service,  968, 1293. 
Service  credited  to,  927,  928, 1535. 
Staff  departments,  921,  922, 1460, 1461. 
rank  of,  929, 1460. 
relation  to  line,  921,  922,  1460. 
Thanks  of  Congress;  advancement  for  receiving,  933. 
Transfer  to  different  branch  of  the  service,  longevity 

credit,  1249. 
Two  offices;  pay  of  both  not  allowed,  950,  951,  1066- 

1071. 
Uniforms,  etc.,  sold  to,  at  cost,  1521, 1531. 
Warrant  officers,  918, 1462, 1479. 
OFFICERS  OF  THE  NAVY: 

See  Acting  officers;  Additional  number  officers;  Advance- 
ment; Allowances;   Appointments;  Articles  for  the 
Government  of  the  Navy;  Civil  employment;  Commis- 
sioned warrant  officers;  Courts-martial;  Details;  Dis- 
missal; Examinations;   Length  of  service;   Naval  Re- 
serve Force;  Officers;  Pay   of  Naval  Establishment; 
Precedence;  Promotion;  Rank;   Records;  Retirement; 
Retired  officers;  Staff  officers,  Titles;  Warrant  officers. 
Absent  without  leave;  dropped  from  roUs,  1011, 1012. 
Acting  assistant  surgeons,  status  of,  527,  528. 
Acting,  status  of,  .525. 
Additional  numbers  authorized,  451,  452. 
engineer  officers  to  be,  1366. 
excluded  from  computations,  1429. 
Naval  Flying  Corps,  1437. 
war  service,  1275,  1276. 
Advancement  for  conduct  in  battle  or  extraordinary 
heroism,  453,  454,  734-736, 1275, 1276. 


1651 


INDEX. 


OFFICERS  OF  THE  NAVY  -Continued. 
Advancement  to  rear  adniiral  during  war,  454. 

when  pay  commences,  Si2-,s:i8. 
Allotments  of  pay  by,  1249. 
Allowances  same  as  Army,  1267. 
Appointment  as  chiefs  of  bureaus  in  Navy  Depart- 
ment, 362. 
as  National  Ouard  ofTicers,  1412. 
by  President  without  consent  of  Senate;  account- 
ing officers  notified  of,  1072. 
from  graduates  of  Naval  Academy,  765-768,  11S8, 

1189,  1392. 
from  graduates  of  Naval  Academy;  commence- 
ment of  increased  pay,  1221, 1222. 
of  convicted  deserters,  573. 
of  dismissed  midshipmen  restricted,  1281. 
to  civil  offices  at  navy  yards  forbidden,  779,  780. 
Captured  by  enemy;  pay,  891. 
Citizensliip,  571. 

Civil  employment;  ocean  mail  vessel;  compensation 
allowed  by  contractor,  1217. 
office  in  territories;  1075. 
office  in  Virgin  Islands,  1075. 
restricted,  1066-1071. 
restricted;  private  companies,  1250. 
Civil  engineers  held  to  be,  532. 

liability  for  illegal  acts,  1003. 
Civilians  commissioned  as,  in  time  of  war,  1392, 1393. 
Classified  as  commissioned,  warrant  and  petty,  448. 
Clerks,  status  of,  525,  534. 
Commissioned  warrant  officers;  designation  of  chief 

warrant  officers,  512. 
Commodore  omitted  from  grades  of  line,  1264. 
Computations,  1427. 

time  for  making,  1529. 
Counsel  before  courts-martial,  departments,  etc.,  1333. 
Courage,  skUl  and  genius  rewarded,  454. 
Definition  of,  .526. 

cadet  engineers  included,  832. 
mileage  laws,  846. 
retirement  laws,  586,  .587. 
Demanding  compensation  for  transportation  of  articles 

other  than  gold,  silver  or  jewels,  9S5. 
Detailed  as  assistants  to  chief  of  Naval  Operations, 
1418. 
as  assistants  to  chiefs  of  bureaus  and  Judge  Ad- 
vocate General,  466, 1222,  1224,  1261, 1284, 1418. 
as  naval  attach^,  828,  829. 
to  Coast  and  Geodetic  Survey,  1151. 
to  Dominican  Republic,  1502. 
to  educational  institutions,  435-441. 
to  examining  boards  coQceming  repairs  to  vessels, 

776,  777. 
to  Haiti,  1416. 

to  Lighthouse  Service,  1149. 
to  Nautical  Almanac  Office,  391. 
to  naval  vessels,  775. 

to  Navy  Department,  333,  337,  364,  389,  46«. 
to  Navy  Department  but  not  holding  statutory 

position,  213,  215. 
to  War  Department,  507. 
Diplomatic  or  consular  office  held  by;  effect  of  on 

commission,  579. 
Dismissal  of,  441,  1010-1014,  1036. 
Distribution  in  grades  and  ranks;  computations,  1427. 
computations,  time  for  making,  1.529. 
line  and  staff  officers,  1425, 1427. 
Distribution  of  rear  admirals  between  upper  and  lower 

half,  1428. 
Dropped  from  rolls  for  unauthorized  absence,  etc.,  1503. 
not  qualified  for  promotion,  729-734. 


OFFICERS  OF  THE  NAVY— Continued. 
Elections;  not  to  interfere  with  iu  States,  1079. 
Enlisted  men  appointed  as;  discharge,  523. 
Ensigns  (junior  grade)  abolished,  1193. 
K.xamination  for  promotion;  facts  once  determined 

not  reopened,  1183. 
Exceeding  number  in  grade,  736. 
Extra  duties;  restriction  on  additional  pay,  1066-1071. 
Families;  payment  of  death  gratuity  to,  1.540,  1.547. 
traasportation  furnished  on  permanent  change  of 
station,  1.").35,  1.536. 
Flag  officers:  rank  of,  576. 
Furloughed  by  Secretary  of  the  Navy,  583. 
Furlough  pay,  detailed  to  ocean  mail  vessels,  1217. 
General  provisions  relations  to  public  officers,  1065- 

1073. 
Grades  of  line  officers,  447,  1425. 
Holding  private  employment,  576. 
Homesteads;  general  provisions  relating  to,  1083-1087. 
Incompatible  offices  defined,  1069. 
Investigation  of  charges  against,  217. 
Insane;  St.  Elizabeths  Hospital  in  the  District   of 

Columbia,  1161-1163. 
Length  of  service;  how  computed;  Army  and  Navy 

service  credited,  1191. 
License  regulations  not  applicable  to,  1135,  1136. 

required  when  serving  as  master  of  merchant 
vessel,  1135,  1136. 
Lighthouse  Service;  detail  to,  1149. 
Mates;  status  of,  517-519. 
Medical  attendance,  902-904. 
Midshipmen,  status  of,  740,  741,  755-7.57,  764,  903. 
Minors  eligible  to  sit  as  members  of  court-martial,  1018. 
Misconduct;  officer  to  be  tried  by  court-martial  instead 

of  retired,  622. 
Number;  acting  assistant  surgeons,  527,  1261. 

additional  to  authorized  strength,  451,  452,  1275, 

1276,  1289,  1366,  1437. 
chaplains  and  acting  chaplams,  1396. 
Civil  Engineer  Corps,  531. 
commissioned  inline,  1424. 
computations  to  determine,  1427, 1428,  1429. 
computations,  time  for  making,  1529. 
Dental  Corps,  1421. 
effect  of  exceeding,  453. 
engineer  officers  to  he  additional,  1366. 
in   any    corps,    grade,    or   rank;  computations; 

disposition  of  fractions,  1427,  1428,  1429. 
in  any  grade  or  rank;  computations;  additional 

numbers  excluded,  1429. 
increase  in;  explicit  legislation  required,  452. 
line  officers,  450-453. 
line  officers;  when  may  be  exceeded,  453. 
medical  officers,  455,  456,  1436,  1437. 
midshipmen,  741-744. 
Naval  Flying  Corps;  additional,  1437. 
naval  storekeepers,  531. 
not  increased  by  implication,  506. 
not  to  be  exceeded,  1428. 
pay  clerks,  chief  pay  clerks,  and  acting  pay  clerks, 

1406,  1407. 
permanent,  not  affected  by  act  of  July  11, 1919;  1528. 

not  affected  by  act  of  June  4, 1920;  1549. 
pharmacists  and  chief  pharmacists,  1420. 
power  of  Congress  to  reduce,  1011. 
staff  officers,  1425. 
Supply  Corps,  466,  467. 
temporary  and  reserve  officers  on  active  duty 

counted  as  part  of,  1549. 
warrant  officers,  509. 
Oaths  administered  by,  217-219,  1240. 


1652 


INDEX. 


OFFICERS  OF  THE  NAVY— Continued. 
Oaths  of  allegiance,  1271. 

of  office,  1065,  1066. 
Official  Register  of  the  United  States  to  contain  names 

and  information  concerning,  1236. 
Pay  clerks,  status  of,  497. 
Presents  to  superiors  prohibited,  1073. 
President  acts  through,  500,  501. 
Promotion  by  selection,  1430-1434,  1513. 

line  and  staff;  time  for  convening  boards,  1529. 
Punishments  inflicted  upon  by  commanding  officer, 

1002. 
Rank  and  pay;  Congress  may  reduce,  910,  911. 
Reapointment  of  former  officers  during  war,  1392, 1393. 
Records  considered  in  examination  for  promotion,  722. 

submitted  to  selection  boards,  1431. 
Reduction  to  another  office  by  court  martial,  988. 

to  enlisted  rating  liy  court-martial,  524,  988. 
Relative  rank  with  Army,  662. 

with  Marine  officers,  667. 
Residence;  in  foreign  country,  572. 

medical  attendance  dependent  upon,  904. 
Restoration  of,  after  dismissal;  pay,  1178. 
Secretaries,  status  of,  525,  527. 
Service  credited  for  longevity  pay,  1535. 
Shore  duty:  must  be  required  by  public  interests,  1191, 

1218, 1219. 
Steerage;  ensigns  are,  704. 
Temporary;  status  of,  525. 

Thanks  of  Congress;  advanced  to  rear  admiral,  454. 
Title  of  master  changed  to  lieutenant,  junior  grade, 
1190. 
of  midshipman  changed  to  ensign,  junior  grade, 

1190. 
of  naval  cadet  changed  to  midshipman,  1279. 
of  staff  officers,  not  changed  by  rank,  1265. 
Total  number  of  commissioned  officers;  definition  of, 

1424,  1425,  1426. 
Transfer  of  ensigns  to  Construction  Corps,  1408. 

of  temporary,  reserve  and  Coast  Guard  officers  to 

permanent  Na"ST)  l^-t9,  1550. 
to  different  branch  of  the  service,  longevity  credit, 

1249. 
to  Naval  Reserve  Flying  Corps,  1454. 
Two  commissions  in  same  office;  precedence,  669. 
offices  held  by:  entitled  to  compensation  which  is 
larger,  472. 
pay  of  both  not  allowed,  950,  951,  1066-1071. 
Unauthorized  office;  no  salary  lor,  1066. 
Uniforms,  etc.,  sold  to,  at  cost,  1521. 
Vessel  lost  or  wrecked;  authority  over  crew,  996. 
Volunteer;  transfer  to  regular  Na-\-y,  530. 
Voting  in  territories,  restrictions  on,  1075. 
Watch  and  division  officers;  ensigns  assigned  as,  704. 
Witnesses  before  civil  courts,  414. 

in  Government  service,  allowed  actual  expenses, 
413. 
Wrecked  or  lost  vessel;  separated  from;  pay,  891. 
OFFICERS  RESERVE  CORPS: 

Government  employees,  members  of;  leave  of  absence 
reinstatement,  1476. 
OFFICIAL  ENVELOPES: 

See  Penalty  envelopes. 
OFFICIAL,  REGISTER: 

Officers  and  employees  of  United  States;  data  required 

for,  228, 1235,  12:36. 
Printing  and  distribution  of,  1235, 1236. 
OIL: 

Estimates  and  appropriations  for.  Navy,  1103. 

Sale  of,  to  vessels  of  Volunteer  Patrol  Squadrons,  1455. 


OIL  LANDS: 

Development  of;  leases,  disposal  of  products,  etc.,  1545. 
Excepted  from  authority  of  Secretary  of  the  Navy  to 

grant  leases,  1419. 
Leases  of  naval  petroleum  reserves,  etc.,  1532, 1533. 
OPEN  MARKET: 

See  Contracts. 
OPERATIONS: 

See  Chief  of  Naval  Operations. 

Surgical;  whether  naval  personnel  required  to  undergo, 
458,  459. 
OPINIONS: 

See  A  ttorney  General. 
OPPRESSION: 

Of  subordinates;  punishment  for  in  Na\'v,  984. 
ORAL: 

Examinations;  discretionary  for  promotion,  514. 
Testimony  before  stunmary  courts-martial,  1006. 
ORDERS: 

See  Disobedience;  Waiting  orders. 
Aid  or  executive;  emanatefrom  commandingofflcer,670. 
Appeal  to  President  from  Secretary  of  War,  83. 
Army  officers;  accoimting  officers  can  not  review,  240, 

241. 
Chiefs  of  bureaus;  emanate  from  Secretary  of  the  Navy, 

361,  1418. 
Disobedience  of;  accoimting  officers  can  not  relieve 

officers  from  responsibility  for,  239,  240. 
General:  violating  or  refusing  obedience  to,  985. 
Illegal,  may  be  defense,  56. 
not  a  defense,  55. 

subordinate  not  boimd  to  obey,  352. 
Importance  of  prompt  obedience  to,  980. 
Medical  treatment;  naval  personnel  required  to  sub- 
mit, 458. 
Mixed  duty;  which  is  paramount,  881. 
Negligence  in  obeying;  punishment  for;  Navy,  984. 
Officer  authorized  to  travel,  or  traveling  by  permis- 
sion, 844,  845. 
Petty  officers,  entitled  to  obedience,  525. 
President  issues  through  Secretary  of  the  Navy,  342. 

through  Secretary  of  War,  83. 
Regulations  operates  as,  196. 

Shore  duty,  naval  officers;  recitals  in,  1191,  1218,  1219. 
Travel  under;  expenses  allowed,  1179. 
mileage  aOowed,  840-846. 
without  troops,  mileage,  1251. 
Wording  of,  not  controlling  as  to  character  of  officer's 
service,  878,  879. 
as  to  character  of  travel  performed,  845. 
ORDINARY: 

Ships  laid  up  in,  774,  895,  897. 
ORDINARY  DISCHARGE: 
See  Discharge. 

Enlisted  men  of  the  Navy,  564,  565,  886. 
ORDINARY  SEAIVLAN: 

Officer  reduced  to  rating  of,  988. 
Rating  changed  to  seaman,  second  class,  1423. 
ORDNANCE: 

See  Bureaus;  Chiefs  of  bureaus;  Contracts;  Projectiles; 

Shells. 
Army;  sale  of,  to  naval  officers,  1312. 

to  other  departments,  1388. 
Loan  or  gift  of  condemned,  to  societies  and  munici- 
palities, 1249. 
Navy,  purchase  without  advertising,  1113. 
tests  of,  1195. 

unlawfully  selling,  stealing,  etc.,  990, 1325. 
Proving  operations;  regulations  to  protect  navigation, 

1519. 
Transfer  of  naval,  to  War  Department,  1515. 


1653 


INDEX. 


ORIGINAL  ENTRY: 

Defined;  officer  appointed  to  higher  position  in  Navy, 
S30. 
ORPHANS: 

CliiUiren  of  deceased  enlisted  men  preferred  for  civil 
emplojnnent,  1180. 
OUTFITS  ON  FIRST  ENLISTMENT: 

Appropriation  available  for  reimbursing  naval  per- 
sonnel for  lost  clothing,  etc.,  1493. 
Clothing  furnished,  Navy,  876,  877,  1203,  1403. 
OVERHEAD  CHARGES: 

Distributed  between  naval  appropriations,  1398. 
OXEN: 

Estimates  and  appropriations  for  purchase  and  main, 
tenance,  Navy,  1103. 
PACKING  BOXES: 

Estimates  and  appropriations  for,  Navy,  1103. 
PAMPHLETS: 

Restrictions  on  purchase  of,  1073. 
P.ANA3IA  RAILROAD: 

Bonds  and  contracts;  provisions  concerning,  1368, 1369. 
PAPERS: 

Useless;  files  at  navy  yards  and  stations;  disposal  of, 
1401. 
in  buildings  under  control  of  departments,  dis- 
posal of,  1248. 
in  departments,  disposal  of,  1202, 1203. 
on  naval  vessels,  disposal  of,  1381. 
PARADES: 

Marine,  and  regattas;  regulations;  enforcement  of  by 

any  head  of  Department,  1300,  1301. 
Precedence  of  line  and  staff  officers  in,  704. 
PARAMOUNT: 

Duty,  rule  for  determining,  881. 
PARDON: 

Acceptance,  86,  87, 122. 

Amnesty  distinguished,  86. 

Conditional,  86. 

Constructive,  86,  573- 

Contempt  of  court,  84. 

Continuing  punishment,  remission  of,  1052. 

Conviction  necessary  before  recommended,  84. 

Court-martial  sentences,  remission  or  mitigation  of, 

85,  1009,  1051-1055;  1308. 
Decisions  relating  to,  83-89. 
Deck-court  sentences,  by  reviewing  officer,  1308. 
Defined,  83. 

DeUvery  and  acceptance,  86,  S7,  122. 
Deserters;  effect  of,  on  disqualification  to  hold  office, 
582. 
effect  of,  on  forfeiture  of  citizenship  rights,  84,1078. 
on  reenUstment,  551. 
Effect  of,  87. 
Form  of,  87. 

Legislative  control  of  President's  power,  85. 
Loss  of  numbers,  continuing  punishment;  remission 

of,  1052. 
Partial,  86. 

Power  of  officers  other  than  President,  85. 
Procedure  to  obtain,  87. 
Secretary  of  the  Navy,  remission  of  unexecuted  portion 

of  sentence,  669. 
.Suspension  from  rank  and  grade,  continuing  punish- 
ment; remission  of,  1052. 
When  may  be  granted,  84. 
PARENTS: 

Consent;  enlistment  of  minors,  548-551,  994. 

to  enrollment  in  Naval  Reserve  Force,  1546. 
Enlisting  minors  without  consent  of;  penalty,  994. 
Statement  as  to  age  of  minor  applj-ing  for  enlistment, 
1402,  1403. 


PAROLE: 

Court-martial  jurisdiction  over  man  paroled  by  civil 
authorities,  <i3. 
PARTIAL: 

Pardon,  86. 

Payments;  Navy  contracts,  1369. 

Verdict,  court-martial  finding,  1029. 
PASSED  ASSISTANT  DENTAL  SURGEONS: 

Appointment,  etc.,  1421. 
PASSED  ASSISTANT  PAYALISTERS: 

S^ee  Supply  Corps. 

Bonds  of,  474. 

Commanding  officer  not  required  to  act  as,  574, 

Defined,  497. 

Promoted  from  assistant  paymasters,  471. 
to  pajTnasters,  471. 

Pay,  793,  802. 

Rank,  676. 
PASSED  ASSISTANT  SURGEONS: 

See  Medical  Corps. 

Commissions  to  be  issued  to,  1251. 

Detailed  as  assistant  to  Bureau  of  Medicine  and  Sur- 
gery, 466. 

Number  of  increased,  1416. 

Pay,  793,  802. 

Promoted  from  assistant  surgeons,  1251. 
to  surgeons,  1251. 

Rank,  673,  675,  676. 

Status,  457,  458. 
PASSENGERS: 

Naval  vessels;  death;  disposition  of  effects,  995. 
PASSENGER  VEHICLES: 

See  Vehicles. 
PASSPORTS: 

Government  officers  and  employees,  1543. 

PATENTS: 

See  Inventions. 

Abandonment  of,  1165,  1494,  1501. 

Applications  for,  expedited  by  departments  interested, 
1251. 
Government  interested,  1163. 

Boards  to  pass  upon  use  of  by  naval  vessels,  776. 

Departments  interested  to  be  represented  before  Com- 
missioner, 1251. 

Officers  of  the  Government  may  obtain,  1192,  1193. 

Power  of  Congress,  37. 

Purcliase  and  use  of  patented  articles  connected  with 
naval  vessels,  776. 

Secretary  of  the  Interior,  supervision  of,  395. 

Suit  for  use  of  by  Government,  1360,  1494,  1502. 

Use  of  by  Government,  37,  1192,  1193,  1360,  1494,  1502. 

Withholding  of,  during  war,  1494,  1501, 1502. 
PATRIOTISM: 

Commanding  officers  to  show  example  of,  978,  979. 
PATROL  SQUADRONS: 

Sale  of  gasoline,  etc.,  to  vessels  of,  1455. 
PATTERN   3IAKER: 

Ratings  established  in  Navy,  1495. 
PAY: 

See  Alloiranccs;  Pay  of  civil  establishment;  Pay  of  Naval 
Eslablishmcnf. 

Congress  has  power  to  change,  92,  97. 

Defined,  440,  827,  828,  886,  887. 

Definition;  allowances  excluded,  1496. 
PAY  AND  ALLOWANCES: 

Definition  of,  828.  948,  953. 

Taxation  by  States,  48. 
PAY  CLERKS: 

See  ^VaTra;H  officers. 

Appointment  of  chief  pay  clerks  and  pay  clerks  as 
assistant  paymasters,  1407. 


1654 


IXDEX. 


PAY  CLERKS— Continued. 
Bonds  required,  476. 
Duties,  1406,  1407. 
Grades  of  acting  pay  clerk,  pay  clerk  and  chief  pay 

clerk  estabUshed,  1406,  1407. 
Marine  Corps,  918,  919. 
number,  pay,  etc.,  1515. 
reserve  ser\'ice  credited  to,  1529, 1530. 
retirement   and  longevity   pay;   reserve   service 

credited  for,  1529,  15.30. 
reverting  to  status  as,  after  service  in  Naval  Re- 
serve Force,  1529,  1-530. 
title  of  clerks  for  assistant  paymasters  changed  to, 
1515. 
Not  part  of  Supply  Corps,  470. 
Number  of  chief  pay  clerks,  pay  clerks,  and  acting  pay 

clerks,  1406,  1407. 
Status,  497. 
PAY  CORPS: 

See  Supply  Corps. 

Name  changed  to  Supply  Corps,  1530. 
PAY  DIRECTORS: 
See  Supply  Corps. 
Bonds,  475-476. 
Pay,  792,  801. 
Rank,  676,  677,  1427. 
PAY  INSPECTORS: 
See  Supply  Corps. 
Bonds  of;  475,  476. 
Pay,  792,  801. 
Rank  of,  676,  1427. 
"PAY,  MARINE  CORPS:" 

See  Appropriations;  Pay  of  yaval  Establishment. 
Appropriation;  available  for  payment  of  claims,  lost  or 
damaged  property,  1493. 
available  for  pajTnent  of  death  gratuity,  1547. 
credited  with  deposits  by  enlisted  men,  12y5. 
Defined  as  permanent  appropriation,  1386. 
Retainer  pay,  Marine  Corps  Reserve,  chargeable  to, 

1455. 
Special  allowances  payable  from,  1545. 
Unexpended  balances,  1177,  1178,  1195. 
PAY1>IASTER  GENERAL: 

See  Bureaus;  Chiefs  of  bureaus;  Supply  Corps. 

Appointment,  379. 

Bond,  476. 

Death  gratuity;  payment;  jurisdiction  of  accounting 

officers,  233,  2:34,  1546,  1547. 
Prices  of  issues  from  naval  supply  account  fixed  by, 

1557. 
Property  accounts;  audited  by;  certificate  to  account- 
ing officers,  1223. 
jurisdiction  of  accounting  ofiBcers,  234. 
Requisitions  for  supplies  made  upon:  transfer  between 

bureaus,  1203. 
Title  conferred  on  chief  of  bureau  of  SuppUes  and  Ac- 
counts, 670,  671. 
PAY3IASTER  OF  THE  FLEET: 
Appointment  of,  474. 
Pay,  792,  SOI. 
PAY>L\STERS: 
See  Supply  Corps. 
Accounts  to  be  signed  by,  when  men  sent  from  sliip, 

995. 
Assignment  of  wages  attested  by,  892. 
Bonds,  474. 

Commanding  officers  not  required  to  act  as,  574. 
Defined;  means  officers  of  Supply  Corps,  380,  471,  497, 

575. 
Eflects  of  deceased  persons  oa  vessels  to  be  secured 
by,  995. 


PA  Yj>IASTERS— Continued. 

Foreign  stations;  accounts  require  consular  certificate 

as  to  prices  of  supplies,  1114. 
Marine  Corps;  counted  as  colonel  in  making  computa- 
tions, 1460. 
payment  of  claims  for  damaged  private  property, 

1493. 
rank,  pay  and  allowances,  929, 1460. 
Promoted  from  passed  assistant  paymasters,  471. 
Pay,  792,  801. 
Rank,  676. 
PAYMASTERS'  CLERKS: 
See  Pay  clerks. 

Laws  relating  to  repealed,  1407. 
Pay,  1302. 

Subject  to  court-martial,  62. 
PAYMASTER  S   STEWARD: 

Service  as,  held  to  be  naval  service,  928. 
PAY]\1ENTS: 

See  Contracts;  Mistake  of  fact;  Mistake  of  law . 
Accounting  officers  can  not  require  officer  to  make,  240. 
Death,  enlisted  men;  eflects  lost  on  sunk  or  captured 

vessels,  269. 
Enlisted  men  on  vessels  sunk  or  destroyed,  264. 
Mandamus  proceedings  to  compel,  256,  257. 
Merger  of  claims  in  checks  issued  for,  277. 
"FAY,  anSCELLANEOUS:" 
See  Appropriations. 

Appropriation ; available  forspecial  allowances  to  naval 
personnel,  1545. 
credited  with  interest,  premiums  and  exchange, 
1222. 
PAY    OF    CIVIL    ESTABLISHMENT: 
See  Checkages. 

Absence;  as  witnesses;  actual  expenses,  413. 
unauthorized;  forfeiture  of  pay  for,  1297. 
Additional  compensation  from  Government  prohib- 
ited, 208,  217, 1177. 
compensation  from  private  parties  restricted,  1470. 
extra  duties;  restriction  on  pay  of  two  offices,  1066- 

1071,  1177. 
not  allowed  for  overtime  work  in  departments, 

1220,  1221. 
not  allowed  for  service  during  leave,  1390. 
restriction  on  double  salaries,  1411. 
rewards  for  suggested  improvements,  1514. 
Annual  report  of,  381,  1194, 1272. 
Appropriations:  exceeding,  IISO,  1:384. 

for  contingent  and  miscellaneous  purposes  not 

available  for,  1105. 
for  naval  service  used  for;  report  of  to  Congress,  381, 

1194,  1272,  1418,  1419. 
for  new  ships;  restrictions  on  use  of,  1281. 
inadequate:  right  to  pay  of  office,  204-205. 
lump  sum;  restrictions  on  use  of,  1307  1389,  1398, 
1418,  1419,  1491,  1492,  1503. 
Assistant  messengers,  204. 

Changes  in  statutory  grades  and  number  of  clerks,  11  SO. 
Checkages;  officer  in  arrears,  1072. 
Commences,  bonded  officer,  prior  to  furnishing  bond, 

211. 
Compensation;  defined,  701,  702. 

for  disabilities,  1467-1469. 
Computation,  monthly  period,  thirty-first  day,  207. 
annual  or  monthly  compensation,  1297. 
for  actual  service  rendered,  1091. 
Contingent  funds  not  available  for,  1105. 

without  specific  authority,  1188. 
Copyists,  204. 

Deductions  for  retirement  fund,  1540, 1541. 
paid  on  separation  from  service,  etc.,  1542. 


1655 


INDEX. 


PAY  OF  CIML  ESTABLISIIMKNT— Continued. 
I>isl)ursing  clerks,  executive  departments,  20i>-210. 
Double  salaries:  restrictions  on,  208,  1066-1071,  1177, 

1411. 
Estimates;  form  of,  1101, 1102. 
Heads  of  departments,  19;5. 
Holidays,  201,  7S1,  782,  1224,  1263. 
per  diem  employees,  1194, 1198. 
regulations  part  of  contract,  787. 
Incompatible  offices,  1069. 

Increase  in:  not  promotion  to  new  office,  208,  341. 
Indebtedness:  withholding  pay  for,  1072. 
Insular  possessions:  period  of  travel  to  and  from  the 

United  States,  782,  1278. 
Laborers,  204. 

Leave  of  absence:  additional  pay  not  allowed  for  serv- 
ice during,  i:i90. 
employees  at  navy  yards  and  stations,  781,  1464. 
executive  departments,  1221,  1263. 
injury  in  line  of  duty,  1468. 
insular  possessions,  cumulative,  1417. 
members  of  Officers'  Reserve  Corps,  1476. 
National  Guard  members,  1412. 
Sundays  and  holidays  excluded,  1263. 
Lump-sum  employees;  restrictions  on,  1307,  1389,  1398, 
1491,  1492,  1503. 
Secretary  of  Navy  may  fix;  report  to  Congress,  . 
1418, 1419. 
Messengers,  204. 

Naval  Academy:  professors  and  instructors,  1457, 1.535. 
Professors;  quarters,  heat,  and  light;  commutation, 
701. 
Naval  Home;  beneficiaries  employed  at,  1294. 
Navy  yards  and  stations;  rates  fixed  by  Secretary  of 
the  Na-^T,  1312,  1313. 
general  provisions  relating  to,  780-783. 
wages,  how  fixed,  1177. 
Per  diem  employees,  781-783. 

hoUdays,  7S7,  1194, 1198. 
Rates  of  compensation  and  number  of  employees  lim- 
ited by  appropriations,  205,  1188,  1384,  1409. 
penalty  for  violating  law  fixing,  1384. 
Recess  appointment ;  no  salarj'  if  vacancy  existed  while 

Senate  in  session,  1066. 
Reduction  of,  by  executive  action,  208. 
Report  of,  under  Increase  of  the  Navy  and  other  general 

appropriations,  381,  1194,  1272,  1418,  1419. 
Retired  employees,  1536-1543. 
Salaries  of  persons  employed  in  departments,  204. 
Secretary  of  the  Naval  Academy,  794,  805. 
Storekeepers  on  foreign  stations,  847. 
Suspension  of  employee,  340,  783. 
Temporary  clerks,  205. 

sessions  of  Congress,  208. 
Thirty-first  day  of  month,  207. 
Transfer  of  salaries  between  bureaus;  explanation  in 

estimates,  1290. 
Two  offices;  restriction  on  double  salaries,  1066-1071, 

1177,  1411. 
Unauthorized  office;  no  salary  for,  1066. 
Waiver  of:  not  allowed,  414,  825. 
Watchmen,  204. 

Withholding:  officer  in  arrears,  1072. 
Women,  compensation  of,  202-204. 
PAY  OF  NAVAL  ESTABLISIOLENT: 

See    Clteckages;    Commutation;    Grafuities;    Heat   arid 
lighl;    Length    of  service;   Mileage;    Mistake  of  law; 
Quarters;  Rations;  Service. 
Absence;  from  duty  due  to  misconduct,  825,  1436. 
in  hands  of  civil  authorities,  588,  589,  871,  9.50. 
officers;  from  ship;  temporary,  882,  883. 


PAY  OF  NAVAL  ESTABLISHMENT— Continued. 
Absence;  officers  of  Marine  Corps,  941. 
officers  of  Navy,  S2.3-S25. 

without  leave;  forfeiture  of  pay  during,  869-871, 
1297. 
officer  of  Navy,  825. 
Acting  assistant  surgeons,  527,  529,  530,  802,  1261. 
chaplains,  802,  1396. 
ensigns,  799. 
paymaster,  839. 
warrant  officers,  794,  803. 
Act  of  March  3,  1899,  1264-1269. 

March  3,  1899,  not  to  reduce,  1268, 1273. 
Act  of  May  13,  1908,  1301-1304. 

May  13, 1908,  not  to  reduce,  1303. 
August  29,  1916,  1437. 
Act  of  August  29,  1916,  not  to  reduce,  14.35, 1437. 
July  11,  1919,  not  to  reduce,  1.529. 
May  18,  1920,  temporary  increases,  1534,  1535. 
Additional  compensation — 

allowed  by  contractor  to  naval  officer  on  ocean 

mail  vessel.  1217. 
enlisted   men;  continuous  service,   883-891,   1269, 
1529,  1530. 
detained  in  the  service,  555,  556. 
extra  duties;  restriction  on  pay  of  two  offices, 

106'>-1071,  1411. 
for  medals  of  honor,  etc.;  enlisted  or  enrolled  nieni 

512, 514, 1275. 1521. 
for  special  duty;  acting  paymaster,  472,  839. 
aid  or  executive:  captain  of  the  yard,  670. 
aid  to  Admiral,  663. 
aid  to  rear  admiral,  81.VS17,  1.303. 
assistant  to  Bureau  of  Engineering,  1284. 
Bureau  of  Medicine  and  Surgery,  466. 
Bureau  of  Navigation,  1222. 
Bureau  of  Ordnance,  1261. 
Bureau  of  Supplies  and  Accounts,  127', 
1272. 
a\-iation,  817,  818,  865,  1403,  1404,  1438,  1439. 
chief  of  bureau,  1302,  1512. 
Chief  of  Naval  Operations,  1418. 
commandant.  Mare   Island  navy  yard,  815, 

1177. 
commanding  fleets  or  subdi\-isions  thereof, 

1481. 
detailed  as  supervisor.   New   York  Harbor, 

1198,1199. 
detailed  to  Republic  of  Haiti,  1416. 
enlisted  men,  Na\-y,  865-S67,  1306. 
foreign  shore  duty,  1275,  1302. 
Marine  Corps,  941,  948,  1275. 
naval  officers,  Sl>^821,  1275,  1302. 
warrant  officers,  1529. 
warrant  officers.  Marine  Corps,  1474. 
Judge  Advocate  General,  1512. 
marines  detailed  as  cooks,  1299. 
Navj'  mail  clerks  and  assistants,  1306. 
officers.  Navy,  815-821. 
sea  duty  and  shore  duty  beyond  seas,  1302. 
sea  duty,  officers  and  enlisted  men  of  Marine 

Corps,  1408. 
services  performed  for  Department  of  Justice, 

459. 
shore  duty  beyond  seas,  818-821,  1275,  1302, 

1474, 1529. 
superintendent  of  Naval  Academy,  1177. 
for  transporting  freight,  jewels,  etc.,  on  naval  ves- 
sel, 985,  9S6. 
(rom  private  parties,  restricted,  1470. 
not  allowed  for  detail  as  superintendent.  Naval 
Observatory,  390. 


1656 


INDEX. 


PAT  OF  NAVAL  ESTABLISHMENT— Continued. 
Additional  compensation— Continued. 

not  allowed  for  detail  to  Coast  Survey,  1151. 

for  detail  to  duty  underWar  Department,  507, 

579. 
for  detail  to  Lighthouse  Service,  1149. 
for  detail  to  Nautical  Almanac  Office,  391. 
not  allowed  retired  officers  detailed  to  schools  or 

coUeges,  1247,  1248. 
restrictions  on  double  salaries,  1066-1071, 1177, 1411. 
Admiral,  791,  707,  1301,  1481. 

Chief  of  Naval  Operations,  1418. 
Advancement  of  officer  for  heroism;  when  pay  com- 
mences, 832. 
Advances;  by  order  of  commanding  officer,  498. 
to  naval  officers,  1472. 

to  persons  on  distant  stations,  838,  1099,  1100. 
Aids,  Marine  Corps,  941. 
Aid  or  executive;  additional  pay  as  aid,  670. 
Aid  to  acting  rear  admiral,  577. 
to  Admiral,  663. 
to  rear  admirals,  815-817, 1303. 
to  rear  admirals;  regulations  governing;  validity 
of,  785. 
AUotments,  825,  826,  1497,  1498. 
defined,  440,  827,  953,  1496. 

enlisted  men  missing  in  action;  continued  pay- 
ment of,  1520,  1521. 
increase  of;  power  of  Secretary  of  the  Navy,  789. 
insane  patients,  789. 

officers  of  Navy  and  Marine  Corps,  1249. 
Appropriations    for;  contingent    and    miscellaneous 
purposes;  not  available  for  official  compensation, 
1105. 
unexpended  balances,  1177,  1178,  1195. 
Army  laws  applicable  to  Navy  Nurse  Corps,  1303, 1304. 
Arrested  by  civil  authorities,  588,589,871,9.50. 
Assignment  of,  by  enlisted  men,  573,  892. 
Assistant  chief.  Bureau  of  Engineering,  1284. 
Bureau  of  Navigation,  1222. 
Bureau  of  Ordnance,  1261. 
Bureau  of  SuppUes  and  Accounts,  1271, 1272. 
Assistant  civil  engineers,  803. 
naval  constructors,  793,  802. 
surgeons  and  assistant  paymasters,  793,  802. 
Attachment  of,  by  creditors,  573,  574. 
Aviation  duty,  817,  818,  1403,  1404,  1438, 1439. 

enUsted  men,  865. 
Base  pay,  defined,  848,  849,  865. 
Bonded  officer;  when  pay  commences,  478-480,  829. 
Bonus  on  discharge;  sixty  dollars,  877,  878. 
Brazil;  officers  detailed  to,  1399. 
Captain  of  the  yard;  additional  pay  as  aid,  670. 
Captains,  Navy,  791,  798,  1301,  1302. 
Captured  vessel;  officers  and  men  attached  to,  891. 
Chaplains,  793,  802,  1301,  1302,  1303,  1396,  1437. 
acting,  1.396. 

to  receive  same  pay  as  other  officers,  according  to 
rank  and  service,  1437. 
Checkages;  court-martial  sentence  required,  1064. 
officer  in  arrears,  1072. 
value  of  lost  property,  788,  1223. 
Chief  machinists,  1314. 

of  Naval  Operations,  1418. 
of  bureaus,  839,  1302,  1380,  1512. 
decisions  relating  to,  371,  372. 
retired  from  active  service,  377. 
subsequently  retired,  1303. 
Citizenship;  enUsted  men;  General  Order  No.  34;  862, 

867,  868. 
Civil  authorities;  personnel  arrested  by,  588,  589,  825, 
871,  950. 


PAY  OF  NAVAL  ESTABLISHMENT-Continucd. 

Civil  employment;  retired  officers  detailed  to  schools  or 
colleges,  1247, 1248. 
with  contractors;    no  pay  allowed  in  certain 
cases,  1250. 
Civil  engineers,  794,  803. 
CiviUans  shipped  on  naval  vessels,  863. 
Clerks  to  commanders  of  squadrons,  commandants, 

paymasters,  etc.,  794,  795,  806. 
Coast  Survey;  additional  pay  not  allowed  for  detail 

to,  1151. 
Commandant  of  Mare  Island  Navy  Yard,  815, 1177. 
Commanders,  791,  798,  1301, 1302. 
Commanding  officers  of  fleets  and  subdivisions  thereof, 

14S1. 
Commencement  of;  bonded  officers,  478-480. 

commissioned  from  graduates  of  Naval  Academy, 

1221, 1222. 
enUsted  men,  869. 
increase  for  sea  duty  and  shore  duty  beyond  seas, 

1302. 
original  entry,  829,  830. 
promotion,  830-838,  1178,  1390. 
Commissioned  officers;  Marine  Corps;   annual  pay  of 
grades,  940. 
Marine   Corps;     general   provisions   relating   to, 

936-951. 
Navy;  annual  pay  of  grades,  1.301. 
Navy;  general  provisions  relating  to,  795-826. 
Navy;  rank  and  service  govern,  1301, 1437. 
Commissioned  warrant  officers,  803,  1267,  1314,  1429, 
1430. 
not  reduced  by  act  of  August  29,  1916;  14.37. 
not  to  receive  less  than  warrant  officers,  1314. 
with  creditable   records  and  length    of   service, 
1429,  1430. 
Commodores,  791,  798, 1301. 
on  the  retired  list,  1307. 
Computation  of;   annual  or  monthly  compensation 
826,  1297. 
for  actual  service  rendered,  1091. 
Construction  corps,  505. 

Constructive  service;  credited  to  officers  for  longevity 
pay,  821-823,  1268. 
not  credited  to  officers  appointed  after  March  4, 
1913;  1390. 
Contingent  appropriations  not  to  be  used  for  official 

compensation,  1105. 
Continuous-ser\ice  pay,  enlisted  men,  883-891,  1269, 

1529,  1530. 
Contractors,  pay  forfeited  for  employment  with,  1250. 
Court-martial;  officer  awaiting  trial  by,  825. 
prisoners;  enUstment  expired,  558,  559. 
suspension  of  officers  by  sentence  of,  1033. 
Coxswains,  866. 

Date  commences  on  promotion,  830-838. 
Date  of  commission  not  binding  on  courts;  rank  ante- 
dated on  promotion,  835. 
Death;  .six  months'  pay,  1546, 1547. 

settlement  of  accounts,  264,  1.305,  1306. 
Deductions  for  naval  hospital  fund,  953, 1159. 
Dc  facto  officer;  promoted  through  error,  708,  709. 
Dental  Corps,  806,  1421, 1422,  1473. 
Deposits,  enlisted  men;  furloughed  without  pay,  537. 
Marine  Corps,  951, 1295. 
Navy,  877,  1202. 

rated  as  mates  or  appointed  as  warrant  officers,  524. 
Deserters;  chcckagc  of  reward  against  pay;  unauthor- 
ized, 1064. 
forfeiture  of  pay,  869-871. 
fraudulently  enlisting,  552. 


1657 


INDEX. 


PAY  OF  NAVAL  ESTABLISHMENT- Continued. 
Discharged  ofnccr;  not  qualified  for  promotion,  630, 

729-734,  livj,  1 163. 
Dismissal  illegal;  effect  of  acquiescence,  826. 

officer  restored,  1178. 
Dominican  Republic;  detailed  to,  1502. 
Double  salaries;   restrictions  on,  208,  1066-1071,  1177, 

1411. 
Drafted  officers  of  merchant  vessels  in  time  of  war,  1249. 
Enlisted  men;  additional  pay  not  pay  of  rating,  8S3. 
assignment  of  pay,  573,  892. 
commencement  of  pay,  869. 
continuous  service  pay,  883-891,  1269,  1529,  1530. 
defined,  886,  890. 
regular  and  reserve  service  credited,  1529, 1530. 
deductions  for  naval  hospital  fund,  953,  1159. 
detained  after  expiration  of  enlistment,  555-562; 

873,  874,  883,  903. 
discharged  and  residing  on  receiving  ship  pending 

reenlistment,  1201, 1202. 
discharged  three  months  prior  to  expiration  of 

enUstment,  1381,  1382. 
distinguished  service  cross,  865, 1521. 
extension  of  enlistment,  872, 1381. 

honorable  discharge  gratuity  and  continuous- 
service  pay,  883-891 . 
final  settlement  of  accounts;  duties  of  command- 
ing officer,  995. 
forfeiture  of  pay,  869-871. 
fraudulent  enlistment,  551,  552,  874. 
furloughed  and  recalled  to  active  duty,  890. 
furloughed  and  reenlisting,  891. 
furloughed  in  lieu  of  discharge  by  purchase,  1436. 
furloughed  without  pay,  871,  872. 

status  of,  537. 
honorable  discharge  gratuity,  883-891,  947. 
hospital  corps,  1420. 
Marine  Corps;  deposit  of  savings,  1295. 
detained  in  service,  557,  558. 
sea  duty,  1408. 

transferred  to  Hospital  Corps,  555. 
medal  of  honor  gratuity,  512,  1275,  1521. 
Naval  Academy  band,  848,  891,  1355,  1356,  1530. 
Navy,  847-878,  1302. 

act  of  May  13,  1908,  construed,  863. 
additional  pay  for  special  duty,  865-867. 
certain  specified  ratings,  1494, 1495. 
citizenship,  802,  867,  868. 
compilation  of  orders  fixing  pay  and  allow- 
ances, 850-803. 
continuous  service  pay   and   honorable  dis- 
charge gratuity,  under  personnel  act,  12G9. 
deposit  of  savings,  877,  1202. 
detained  after  expiration  of  enlistment,  555- 

5G2,  873,  874,  883,  903. 
General  Order  No.  34;  802,  807,  808. 
general  provisions  relating  to,  847-878. 
leave  of  absence,  809. 
longevity,  862,  867,  868. 

what  service  counts,  1550. 
mileage    and    transportation    on    discharge, 

874-870. 
pay  of  certain  ratings  fixed,  1423. 
rates  to  continue  until  changed  by  Congress, 

1303. 
rating  advanced  or  reduced,  868,  869. 
retired,  872,  873. 
temporary  rates,  1479. 

ten  per  cent  additional;  how  computed,  863. 
transferred  to  Fleet  Naval  Reserve,  871. 
on  missing  vessels,  268. 


PAY  OF  NAVAL  ESTABLISHMENT— Continued. 
Enlisted  men;   promoted  to  pharmacist;  when  pay 
commences,  830. 
ratings  may  be  established  by  Secretary  of  the 

Navy,  1552. 
reenlistment  abroad,  555,  556. 

after  service  in  Fleet  Naval  Reserve,  1450. 
reenlistment  pay,  883-891. 

retired,  872,  873,  890,  1269,  1299,  1303,  1405,  1406, 
1411,1451,  1514. 
honorable  discharge  gratuity  and  continuous- 
service  pay,  890. 
sale  of  wages,  etc.,  to  be  discouraged,  573. 
serving  as  firemen,  878. 
short  term,  benefits  on  discharge  and  reenlistment, 

1552. 
special  duty;  leave  of  absence,  574. 
summary  court-martial  may  sentence  to  loss  of 
pay,  1007. 
Ensigns,  792,  799,  1301. 
Estimates;  form  of,  1101,  1102. 

Examination  for  promotion;  delayed;  antedating  rank; 
832. 
officer  absent  from  vessel  during,  709. 
officer  discharged  for  failure  to  qualify,  630,  729-734, 
1189,  1403. 
Extension  of  enlistment,  872,  8,83-891, 1381. 
Flag  officer;  captain  assigned  to  duty  with  rank  of 

rear  admiral,  577. 
Fleet  officers,  474. 

admiral  and  vice  admiral,  1481. 
Fleet  surgeons,  fleet  paymasters  and  fleet  engineers, 

792,  801. 
Flying  Corps,  1438,  1439. 

Foreign  shore  duty;  detailed  to  Brazil,  Haiti,  Domini- 
can RepubUc  and  South  American  Republics, 
1390,  1410,  1502,  1556. 
Marine  Corps,  941,  948,  1275. 
naval  officers,  818-821, 1275,  1302. 
under  personnel  act,  1267. 
warrant  officers,  1529. 
Marine  Corps,  1474. 
Forfeiture  of;  absence  caused  by  misconduct,  825, 143t3. 
absence  without  leave,  588,  589,  871,  950,  1297. 
adjudged  by  deck  coiu-ts,  1308. 
adjudged  by  summary  courts-martial,  1007. 
court-martial  sentence  required  for,  826. 
deserters;  credited  to  naval  hospital  fund,  1273. 
enlisted  men;  Marine  Corps,  950. 

Navy,  809-871. 
holding  employment  with  contractors,  1250. 
retainer  pay,  Naval  Reserve  Force,  for  cause,  1450, 
1451. 
Fraudulent  enlistment,  551,  552,  874. 
Furloughed  enlisted  men,  537,  871,  872,  1436. 
Marine  Corps,  on  duty  at  headquarters,  1474. 
recalled  to  active  duty,  890. 
reenlisting,  891. 
Furlough  pay;  officers  of  the  active  list,  583,  82G. 
officers  serving  on  ocean  mail  vessels,  1217. 
retired  officers,  617,  910,  915-916. 

not  applicable  to  Marine  Corps,  622,  968. 
General  Order  No.  34;  enlisted  men,  862,  867,  8C8. 
General  provisions  relating  to  Marine  Corps,  936-953. 

relating  to  Navy,  791-916. 
Good-conduct  medals,  pins  and  bars,  866,  807. 
Gratuities;  honorable  discharge,  883-891. 
honorable  discharge;  Marine  Corps,  947. 
medal  of  honor  men,  512,  514, 1275, 1521. 
Gun  captains  and  gun  pointers,  866. 
Gunnery  sergeants,  950,  1383. 


1658 


INDEX. 


PAY  OF  NAVAL  ESTABLISHIVIEIVT— Continued. 
Highest  pay,  defined,  882. 

shore-duty  pay;  assistant  to  Bureau  of  Medicine 
and  Surgery,  466. 
Honorable-discharge  gratuity,  883-891,  947. 
Hospital  corps,  847. 
Incompatible  offices,  1069. 

Indebtedness,  enlisted  men;  travel  allowance  on  dis- 
charge not  withheld  for,  876. 

erdistedmen;  under  previous  enlistment,  245. 

officers;  pay  withheld  for,  1072. 
Insane  patients,  naval  service,  788,  7S9. 
Instilar  force,  863,  864. 

Insular  force;  detention  after  enlistment  expires,  558. 
Interned  officers,  in  neutral  country,  892. 
Judge  Advocate  General,  371, 1186, 1512. 

after  retirement,  377. 
Leave  of  absence;  enlisted  men,  869. 

officers.  Marine  Corps,  941. 

officers.  Navy,  823-S25. 

special  duty,  574. 

warrant  officers,  1430. 
Lieutenant  commanders,  792,  798, 1301, 1302. 
Lieutenants,  junior  grade,  792,  799, 1301. 

Navy,  792,  799,  1301. 
Lighthouse    Service;     additional   compensation   not 

allowed  for  detail  to,  1149. 
Longevity;  enUsted  men.  Marine  Corps,  942, 946. 

enUsted  men.  Navy,  S62,  867,  868,  1550. 

officers,  Marine  Corps,  940,  941,  949. 

Marine  Corps;  what  service  credited,  927,  928, 

1529,  1535. 
Navy,  821-823,  1301, 1302. 

constructive  service  credited,  1268. 
constructive  service  not  credited,  1390. 
what  service  credited,  1529,  1535,  1550. 

service  as  commandant's  clerk,  534. 

retired  officers,  908,  909. 
Machinists,  1269. 

Mare  Island  Navj'  Yard;  commandant,  1177. 
Marme  band,  951,  952,  1463,  1464. 
Marine  Corps;  absence  of  enlisted  men;  arrested  by 
civU  authorities,  950. 

absence  of  officers  from  duty,  825,  941, 1436. 

aids,  941. 

Army  act  of  May  11, 1908;  940,  941. 

Army  laws  applicable  to,  940-943. 

brevet  pay,  932. 

clerical  duty,  enlisted  men,  1474. 

cooks,  additional  for  enlisted  men  detailed  as,  1299. 

deductions  for  naval  hospital  fimd,  953, 1159. 

deposit  of  savings,  951,  1295. 

enlistment  allowance,  942. 

extra  duty  pay,  942,  946. 
restrictions  on,  1315. 

foreign  shore  service,  941,  948, 1275. 

forfeiture,  enlisted  men,  950. 

general  provisions  relating  to,  936-954. 

gunnery  sergeants,  950,  13S3. 

laws  relating  specifically  to,  936-940. 

longe\^ty,  officers,  940,  941,  949. 

marksmen,  etc.,  enlisted  men,  942. 

mounted  pay,  940. 

overpaid,  by  mistake  of  law;  951. 

pay  grades,  enUsted  men,  945. 

pay  of  two  offices  not  allowed,  950,  951. 

rates  of  pay,  enlisted  men,  942,  945. 

rates  of  pay,  officers,  940,  941. 

reenUstment  pay;    honorable  discharge  gratuity, 
883-891,  947. 

retired  officers,  965. 

senior  staff  officers,  1460. 


PAT  OF  NAVAL  ESTABLISH>IENT-Continued. 
Marine  Corps;  specialist  ratings,  enlisted  men,  942, 
946. 
special  quaUflcations,  details,  etc.,  enlisted  men, 

947,  94S. 
temporary  increases,  941,  942. 
Marine  gimncrs,  1462. 
Mates,  521,  522,  792,  800,  864. 

retired;    honorable  discharge  gratuity  and  con- 
tinuous service  pay,  890,  891. 
Medal-of-honor  gratuity,  512,  514,  1275, 1521. 
Medical  attendance  not  pay,  but  an  allowance,  440. 
Medical  Corps;  officer  detailed  as  assistant  to  Bureau, 

466. 
Medical  directors  and  inspectors,  792,  801. 
Mess  attendants  and  cooks,  864. 

sergeants,  942. 
Midshipmen,  792,  799,  1302. 
leave  of  absence,  764. 
students  from  Philippine  Islands  allowed  same 

pay  as,  1424. 
suspended  without  pay,  755. 
Monthly  computation  of,  826, 1297. 
Nautical  Almanac;  officer  in  charge  of,  391. 
Naval  Academy  Band,  848,  891,  1355,  1356,  1530. 
Naval  constructors,  793,  802. 
Naval  hospital  fund,  deductions  for,  953,  1159. 
Naval  Reseri-e  Force,  active  duty,  808,  809,  1447. 
active  duty  credited  to  regular  officers  and  en- 
listed men,  1529,  1530. 
active  duty  in  time  of  peace;  retainer  pay  not 

allowed,  1510. 
active  duty;  longevity,  how  computed,  1511. 
court-martial  deductions,  814. 
court-martial;  member  awaiting  trial  by,  814. 
deduction  for  hospital  fund,  814. 
enlisted  men  transferred  to  Fleet  Naval  Reserve, 

871. 
general  provisions  relating  to,  808-815, 1442-1455. 
holding  other  offices,  812,  1446. 
honorable    discharge    gratuity  and    continuous 

ser\-ice  pay,  889,  890. 
medals  of  honor,  etc.,  additional  pay,  1521. 
retainer  pay,  809-812. 

after  confirmation,  1509. 

appropriation  chargeable,  1455. 

before  confirmation,  1445. 

conditions  of  payment,  1445. 

enrolled  men.  Fleet  Naval  Reserve,  1449. 

Fleet  Naval  Reserve,  increased  on  reenroll- 

ment,  1450. 
forfeited  for  cause.  Fleet  Naval  Reserve,  1450, 

1451. 
Fleet  Naval  Reserve;  minimum  service  not 

performed,  1449. 
increased  for  heroism  and  good -conduct  meda's, 

1450. 
increased  on  reenrollment,  1445,  1446. 
Naval  AuxiUarj-  Reserve,  1453. 
Naval  Reserve  Flying  Corps,  1454. 
not  allowed  in  time  of  peace  when  on  duty, 

1510. 
not  reduced  by  appointment  as  officer,  1444, 

1451. 
transferred  members  of  Fleet  Naval  Reserve, 

1450. 
when  paid,  1446. 
while  on  active  duty,  1445,  1510. 
withheld  for  cause,  1450, 1451, 1546, 1552. 
retired,  814,  815. 
travel  allowance,  813,  814. 
unauthorized  absence,  814. 


54641°— 22- 


-105 


1659 


INDEX. 


PAT  OF  NAVAL  ESTABLISHMENT-Continued. 
Naval  Reserve  Force,  uniform  gratuity,  812,  813. 

when  not  actively  employed,  1H7. 
Navy  cross,  enlisted  man,  additional  pay,  865. 
Navy  mailclerksandassistants,  86.5,1306. 
Nurse  Corps,  female,  807,  1303, 1304. 
Ocean  mail  vessels;  officers  on,  allowed  furlough  pay, 

1217. 
Officers,  Navy;  Army  pay  extended  to,  1267. 
general  provisions  relating  to,  795-826. 
rates  of,  791-S26. 

same  pay  according  to  rank  and  length  of  service, 
1301,  1437. 
Old  Navy  pay  retained  for  officers  where  higher  than 

new  rates,  1273. 
One  year's  pay  on  discharge;  oflScer  failing  to  pass 

examination,  630,  729-734,  11S9, 1463. 
Overpayment;  mistake  of  law;  right  of  Government 

to  recover,  951. 
Original    entry,    defined;  officer    accepting    another 

position  in  Navy,  830. 
Passed  assistant  surgeons  and  passed  assistant  pay- 
masters, 793,  802. 
Pay  and  allowances,  defined,  948,  953. 

commutation  not  pay,  953. 
Pay  clerks,  acting  pay  clerks  and  chief  pay  clerks, 
1406,  1407.     . 
Marine  Corps,  950,  1515. 

Marine  Corps;  longevity  pay;  reserve  service,  1529, 
1530. 
Pay  defined,  440,  827,  828,  886,  887,  1496. 
Pay  directors  and  inspectors,  792,  801. 
Paymasters,  792,  801. 

clerks,  1302. 
Pay  of  rating,  defined;  additional  pay  not  included,  883. 
Pay  proper  defined;  commutation  of  quarters  not,  702. 
Personnel  act  not  to  reduce  pay  which  commissioned 

officers  would  otherwise  receive,  1268, 1273. 
Petty  officers'  certificates,  866. 
Pharmacists  and  chief  pharmacists,  1420. 
Prisoners;  during  confinement  and  on  discharge,  1310, 
1311. 
officers  held  by  civil  or  military  authorities,  825. 
of  war,  891. 
Professors  of  mathematics,  794,  803. 
Promotion;  commencement  of  pay  on,  830-838,  1178, 
1390. 
date  of  rank;  officer  advanced  for  heroism,  734-736. 
of  warrant  officers  not  to  reduce  their  pay,  1314. 
Quartermaster  clerks,  1462. 

Rank;  dental  officers  may  receive  pay  of  higher,  1421. 
of  commissioned  officers,  Navj',  basis  of  pay,  1301, 
1437. 
Ratings  advanced  or  reduced;  enlisted  men,  Navy, 

868,  869. 
Rear  admirals,  791,  797. 

first  and  second  nine,  1301. 
officers  acting  as,  with  rank  of  flag  officer,  577. 
two  grades  for  pay  purposes,  447,  064,  665. 
upper  and  lower  half,  line  and  staff,  1429. 
Recess  appointment;  no  salary   if  vacancy   existed 

while  Senate  in  session,  1066. 
Reduction  not  to  result  from  acts  changing,  1268,  1273, 
1303,  1435,  1529. 
of,  without  statutory  authority,  826,  844,  845. 
Reserve  nurses  on  active  duty,  1303, 1304. 
Resignation  of  officer;  date  efTective,  826. 
Retainer  pay,  Naval  Reserve  Force,  809-812. 
Retired- 
chiefs  of  bureaus  and  Judge  Advocate  General,  377, 
673,  1303. 


PAY  OF  NAVAL  EST.ABLISHMENT— Continued. 
Retired — Continued . 

enlisted  men,  872,  873, 1269, 1299. 
active  duty,  1405,  1406,  1451. 

promotion,  1514. 
Navy,  based  on  pay  of  active  list,  1303. 
restrictions  on  double  salaries  not  applicable 
to,  1411. 
members.   Naval  Reserve   Force;  physical  disa- 
bility, 1549. 

members,  Naval  Reserve  Force,  20  years'  service, 
1446. 
.30  years'  service,  1451. 
officers,  906,  963. 

active  duty,  913-915,  1380,  1381,  1437. 

ill  time  of  war  or  emergency,  1512,  1513. 
warrant     and     commissioned     warrant 
officers,  1503,  1504. 
age  ineligibility  for  promotion,  1434. 
based  on  pay  of  active  list,  1303. 
Chief  of  Naval  Operations,  1418. 
chiefs  of  bureaus  subsequently  retired,  1303. 
Civil  War  service,  1266,  1293,  1312. 
commencement  of  retired  pay,  912. 
commodores,  1307. 

Congress  may  reduce  rank  and  pay  of,  910, 911. 
dental  corps,  1422. 
detailed  to  educational  institutions,  439,  440, 

1247,  1248. 
disability  not  incident  of  the  service;  furlough 

pay,  617,  915,  916. 
general    legislation,    whether    applicable    to, 

633,  634,  832,  908. 
general  provisions  relating  to,  906-916,  %3-970. 
holding  position  as  Member  of  Congress,  643. 
Marine  Corps,  963-970. 
not  increased  after  retirement,  1189. 
not  increased  or  reduced  by  personnel  act,  1268. 
not  recommended  for  promotion,  597,  911. 
one  year's  pay  when  wholly  retired,  617,621. 
pay  is  salary,  911. 
pay  is  not  a  pension,  635. 
President's  action  illegal,  622. 
promoted  on  retired  list,  912,  913. 
promotion    pending    when    retired;    subse- 
quently confirmed,  832. 
restriction  on  double  salaries  not  applicable  to, 

1411. 
sea  duty  increase  not  included  in  computation, 

1307. 
sea  pay  allowed  in  certain  cases,  1380. 
thirty  years'  service;  based  on  highest  pay  of 

grade,  1303. 
transferred  from  furlough  to  retired  pay  list, 

916. 
voluntarily  retired  to  create  vacancies,  1265, 
1380. 
Revised  Statutes  relating  to;  general  provisions,  791. 
Sea  duty;  definition  of;  decisions  relating  to,  878-883. 
increase  allowed   retired  officers  in  certain  cases, 
1265,  1380. 
not  included  in  computing,   retired   officers. 

Navy,  1307. 
when  begins  and  ends,  881,  882. 
leave  of  absence,  midshipman,  764. 
Marine  Corps,  948,  1408. 
naval  officers,  878-883, 1302. 

absent;  undergoing  examination  for  promotion, 
709. 
Seamen  gunners'  certificates,  866. 
Sea  pay  allowed  for  shore  duty,  882. 


1660 


J^DEX. 


PAY  OF  NAVAL  ESTABLISHMENT— Continued. 
Sea  pay  allowed  for  shore  duty — 

comiaandant,  Mare  Island  navy  yard,  1177. 

estimates  to  show  in  detail,  1312. 

officer  detailed  as  supervisor.  New  York  Harbor, 

1198, 1199. 
superintendent.  Naval  Academy,  1177. 
warrant  officers;  foreign  shore  duty,  1529. 
Secretaries  to  admirals,  vice  admirals  and  commanders 

of  squadrons,  455,  794,  805. 
Secretary  of  the  Naval  Academy,  794,  805. 
Ship's  tailors  and  sliip's  helpers,  866. 
Shore  duty;  assistant  to  Bureau  of  Medicine  and  Sur- 
gery, 466. 
beyond  seas,  Marine  Corps,  941,  948, 1275,  1474. 
beyond  seas,  naval  officers,  818-821, 1275, 1302, 1529. 
beyond  seas,  under  personnel  act,  1267. 
officer  in  charge  of  Nautical  Almanac,  391. 
sea  pay  aUowed  for,  882,  1177, 1198, 1199,  1312, 1529. 
superintendent  of  Naval  Observatory,  390. 
under  personnel  act,  1267. 
South  American  Republics;  officers  detailed  to,  1399, 

1556. 
Special  act  reappointing  officer,  830. 
Special  act  restoring  officer  to  former  rank,  733. 
Stoppage  of,  requires  court-martial  sentence,  1064. 
Storekeepers  on  foreign  stations,  846,  847. 
Submarine  duty,  865,  866. 
Summary  court-martial  may  sentence  to  loss  of  pay, 

1007. 
Superintendent  of  Naval  Academy,  815,  1177. 

of  Naval  Observatory,  390. 
Supervisor  of  New  York  Harbor;  sea  pay  allowed  to, 

1198. 
Suspension  of  midshipman  without  pay;  not  entitled 
to  allowances,  828. 
of  officer  by  court-martial  sentence,  1033. 
Surgeons,  792,  801. 

Temporary  increases;  act  of  May  18,  1920;  1534-1535. 
Termination  of,  826. 

Two  offices;  entitled  to  compensation  which  is  larger, 
389,  472. 
not  entitled  to  pay  of  both,  839. 
restriction  on  double  salaries,  1066-1071,  1177,  1411. 
Unauthorized  office;  no  salary  for,  1066. 
Vacancy  defined;  commencement  of  pay  on  promo- 
tion, 832. 
Vessel  sunk  or  destroyed;  payment  of  arrears  due  en- 
listed men,  264. 
Vice  admirals,  791,  797,  1481. 
Volunteers,  829. 

Waiting  orders,  officers  of  Navy,  700,  824,  825. 
Waiver  of  pay  or  allowances,  208,  414,  561,  825,  844,  845, 

877. 
Warrant  officers,  794,  803,  1267,  1302,  1472. 
commissioned,  803,  1267, 1314,  1429,  1430. 
foreign  shore  duty,  1529.  • 
leave  of  absence,  1430. 
machinists,  1269. 
Marine  Corps,  1462. 

foreign  shore  duty,  1474. 
Navy  and  Marine  Corps;  longevity  pay;  reserve 

service,  1529,  1530. 
on  promotion  not  to  suffer  reduction,  1314. 
pharmacists,  1420. 
shore  duty,  1472. 
Withholding;  officer  in  arrears,  1072. 
Wrecked  vessels;  officers  and  men  separated  from,  891. 
"PAY  OF  THE  NAVY:" 

See  A  ppropriations;  Pay  of  Natal  Establishment. 
Appropriation  available  for  cost  of   medals,  crosses 
and  barSj  etc.,  1522. 


"PAY  OF  THE  NAVY"— Continued. 

Appropriation  available  for  death  gratuity,  1.547. 

for  payment  of  claims  for  damaged  property,  1493. 
Defined  as  permanent  appropriation,  1386. 
Estimates  of  appropriations  for,  1312. 
Naval  Academy  band;  compensation  payable  from, 

1355. 
Retainer  pay,  Naval  Reserve  Force,  chargeable  to, 

1455. 
Unexpended  balances,  1177,  1178,  1195. 
Use  of  appropriation,  515. 

restricted  to  its  legitimate  purpose,  1183. 
PAY  PROPER: 

Definition  of,  702,  828. 
PEACE: 

Desertion,  etc.,  in  time  of;  punishment,  Navy,  985. 
Dismissal  of  naval  officers  in  time  of,  441, 1010-1014. 
Time  of,  construed,  1010,  1011. 

purchase  of  discharge  by  enlisted  men  during,  1222. 
PEARL  HARBOR: 

Rules  governing  navigation,  anchorage,  etc.,  1382. 
PENAL: 

See  Crimes. 
Code,  1316-1355. 
Laws,  defined,  8. 

interpretation  of,  23. 
Statutes,  act  requiring  discharge  of  officer  for  moral 
unfitness;  held  not,  628. 
PENALTY: 

Bidders  for  contracts  delinquent,  charged  with  difler- 

encein  cost,  1112,  1113. 
Contractor  dehnquent;  liquidated  damages,  1111,1113, 
or  sureties  defaulting;  subsequent  bids  by,   re- 
jected, 1114. 
Contracts;  officer  omitting  to  file  return  in  returns 
office,  1119. 
PENALTY  ENVELOPES: 

Authority  to  use;  endorsements  on;  registered  mail, 

1185,1186. 
Correspondence  with  foreign  countries,  329. 
Fraudulent  use  of,  1345. 
Loan  of  frank  forbidden,  1291. 
Official  business,  free  of  postage,  1181. 
Self-addressed,  inclosed  in  letters  to  Congress  requiring 

answers,  1191. 
Universal  postal  convention  regarding,  329. 
Use  of,  1291. 
PENITENTIARIES : 
See  Prisons. 

Atlanta;  products  used  by  naval  forces,  1519, 1520. 
Naval  courts-martial  may  sentence  to  imprisonment, 
in,  983,  984. 
officers  imprisoned  in;  dropped  from  roUs,  1503. 
Prisoners  in  not  to  be  hired  out,  1198. 
PENNANTS: 

Naval  Raserve  Force;  not  to  be  flown  in  lieu  of  national 
ensign,  1448. 
use  of  by  members  commanding  merchant  vessels, 
1448. 
PENSIONS: 

Allowance  in  addition  to,  1155. 
Duties  of  Commissioner  of  Pensions,  396. 
General  provisions  relating  to,  1153-1157. 
Insane  persons  in  Saint  Elizabeths;  payment  of,  789. 
Jurisdiction  of  Commissioner;  retirement  of  civil  em- 
ployees, 1538. 
of  Commissioner  and  Secretary  of  the  Navy,  1155. 
Laws  not  applicable  to  persons  in  service  October  6, 

1917,  or  thereafter,  1500. 
Medal-of-honor  roll.  Navy  Department;  special  pen- 
sion, 1410, 1411. 


1661 


INDEX. 


PENSIONS— Continued. 

Naval  Home  inmates;  disposition  of,  lau,  1595. 

Naval  hospitals  allowed,  for  inmates,  1160, 1161, 1261. 

Not  allowed  persons  in  naval  sor\ice,  active  or  retired, 
1217,  1218. 

Power  of  Congress  to  allow,  47. 

Retired  pay  held  not  to  be,  0:55. 

Secretary  of  the  Interior,  supervision  of,  395. 

Service;  enlisted  men  of  specified  service  entitled  to, 
IIM,  1155. 

War  risk  compensation  not  allowed  in  addition  to,  1499. 
substituted  for,  1500. 
PENSION  FUND: 

Navy,  1103,  1146,  1153-1156,  1261,  1395,  1472,  1503. 
PER  DIEM: 

See  Civil  establishment;  Pay  of  civil  establishment;  Wit- 
nesses. 

Persons  attending  courts-martial  and  courts  of  inquiry; 
estimates  and  appropriations  for,  Na\'y,  1103. 
PERIODICALS: 

Authority  of  law  necessary  for  printing  of  by  Govern- 
ment, 1525. 

Payment  for  subscriptions  in  advance,  1401,  1408. 

Restriction.s  on  purchase  of,  1073, 1261. 
PERJURY: 

Claims  against  United  States,  990. 

Fal.se  returns  of  contracts;  evidence  in  prosecution,  428 

Naval  courts-martial;  how  punished,  1021. 
courts-martial;  prosecutions  for,  431.- 

Punishment,  1335. 

State  jurisdiction  when  committed  in  Federal  court, 53. 

Subornation  of;  punishment,  1335. 

Testimony  before  congressional  committees,  421. 
PERMANENT: 

Appropriations,  defined,  1386. 
Navy  Department,  1106, 1107. 

Change  of  station;  transportation  furnished,  1535, 1536. 

Definition  of;  incapacity  for  duty,  598. 

Station;  defined,  1536. 
PERSON: 

Defined,  185, 1355. 
PERSONAL  EFFECTS: 

S,f:e  Effects. 
PERSONNEL  ACT: 

March  3,  1899;  1263-1271. 
PETITIONS: 

Civil  employees  to  Congress  or  members  thereof,  1388. 
PETROLEUM  RESERVES: 

See  Naval  petroleum  reserves. 
PETTY  OFFICERS: 

See  Enlisted  men. 

Additional  pay,  enlisted  men  holding  petty  oflacer's 
certificates,  866. 

Definition  of,  525. 

Entitled  to  obedience,  525. 

Mates  held  to  be,  518. 

"  Noncommissioned  officers"  includes,  441. 

Punishments  inflicted  upon  by  commanding  oflBcer, 
1002. 

Summary  courts-martial  may  punish,  1006. 
PHARMACISTS: 

See  Pay  of  Naval  Establishment;  Warrant  officers. 

Number  and  appointment  of,  etc.,  1262, 1419,  1420. 

Removable  in  the  discretion  of  the  Secretary  of  the 
Navy,  1262. 
PHILIPPINE  INSURRECTION: 

Whether  constituted  a  state  of  war,  272. 
PHILIPPINE  ISLANDS: 

Citizenship  in,  113, 1506. 

Civil  employees,  782. 

pay  while  in  transit,  1278. 


PHILIPPINE  ISLANDS-Continued. 

Civil  office  in;  military  officer  may  discharge  special 
duties  without  holding,  1075. 

Jurisdiction  of  courts  over  naval  vessels,  67. 

Marine  brigade;  status  and  discipline  of,  955. 

Naturalization  of  natives,  1500. 

Nautical  school ;  loan  of  naval  vessel  and  enlisted  men, 
etc.,  to,  1297, 1298. 

Shore  duty  in;  additional  pay  allowed,  1275. 

Students  for  instruction  at  Naval  Academy,  743, 1424. 

United  States  held  not  to  include,  1015. 
PHOTOGRAPHS: 

Restrictions  on,  in  departmental  publications,  1284. 
PHYSICAL: 

Examinations  for  promotion.  Navy,  707-710. 
PHYSICAL  INCAPACITY: 

Definition  of,  598. 
PICKLES: 

Purchase  of  for  Navy,  1115. 
PICTURES: 

Prize  fights;  films,  etc.,  1371, 1372. 
PILOTAGE: 

Estimates  and  appropriations  for,  Na\'y,  1103. 

State  discrimination  against  national  vessels  forbidden, 
1130. 
PILOT  CHARTS: 

Preparation  and  publication  of,  388. 
PILOTS: 

Licenses  as,  not  required  of  officers  of  public  vessels, 
1135, 1136. 

Rules  for  the  government  of,  1135. 

State  laws  requiring,  50. 
PINKERTON   DETECTIVE  AGENCY: 

Arrest  of  deserters,  118. 

Employment  of,  forbidden,  1220. 
PIRACY: 

Power  of  Congress  to  define  and  punish,  38. 

Punishment,  etc.,  1351-1353. 

Use  of  naval  vessels  to  suppress,  1130, 1131. 
PLANS: 

Confidential;  filing  of  in  Returns  Office,  397. 

Public  works  and  buildings;  to  accompany  estimates 
submitted  to  Congress,  1102. 

Relating  to  national  defense;  losing,  stealing,  etc.,  1483. 
PLATES: 

Engraved;  Wilkes's  Expedition,  380. 
PLEA  IN  BAR: 

See  Courts-martial;  Jeopardy. 
PLEDGE: 

Receiving  public  property  as,  from  unauthorized  per- 
son; punishment.  Navy,  990. 
PLUCKING  BOARD: 

Creation  of  board  for  retirement  of  ofiicers,  1266. 

Repeal  of  law  providing  for  involuntary  retirement, 
1403. 
PLUNDERING: 

Inhabitants  on  shore,  punishment.  Navy,  985. 
PLURAL: 

Includes  singular  in  Federal  statutes,  185, 1355. 
POISONS: 

Mailing  of;  punishment,  1342,  1343. 
POLICE  DUTIES: 

Extra;  summary  court-martial  may  adjudge,  1007. 
POLITICAL: 

Considerations;  employment  of  laborers  at  navy  yards, 
780. 

Contributions;  constitutionaUty  of  statutes  prohibit- 
ing, 340. 
oflenses  connected  with  soliciting,  giving,  etc., 

1334, 1335. 
prohibited,  783. 


1662 


INDEX. 


POLITIC  Air— Continued . 

Contributions;  prohibited;  executive  oflBcers  and  em- 
ployees, IISO,  llSl. 

Questions;  jurisdiction  of  courts,  104. 
POLL,  TAXES: 

Persons  in  Navy,  48. 
PORTO  RICO: 

Census  taken  of,  1525. 

Citizenship  in,  113, 1506. 

Civil  employees;  pay  while  in  transit,  1278. 
offices  in;  holding  of  by  naval  oflBcer,  1075. 

Midshipmen  appointed  from,  742,  1281. 

Naturalization  of  inhabitants,  1506. 

Status  of;  held  to  be  a  territory,  1075. 
is  within  the  United  States,  438. 
PORTS: 

See  Foreign  port. 

Collector  of;  inspection  of  naval  vessels,  260. 

Home  port  of  naval  vessel;  change  of,  1536. 

Naval  vessels  laid  up  in  ordinary  in,  774. 

United  States;  port  in  Guam,  112. 
POSSESSIONS: 

See  Insular  'possessions;  Military  government;  Territo- 
ries. 
POSTAGE: 

See  Penalty  envelopes. 

Collecting  excessive,  1339, 1340. 

Estimates  and  appropriations  for,  Navy,  1103. 

Failure  to  account  for  amount  due,  1340. 

Fraudulently  using  penalty  envelopes  to  avoid,  1345. 

Penalty  envelopes;  authority  to  use;  indorsements  on; 
registered  mail,  1185, 11S6. 
official  business,  without  postage,  llSl,  1291. 

Stamps;  unlawfully  pledging  or  selling,  1340. 
POSTAL  FUNDS: 

See  Crimes; Public  moneys. 
POSTAL  SERVICE: 

Arrangements  with  foreign  countries,  329. 

Laws  and  regulationsof ,  govern  Na\'y  mail  clerks  and 
assistants,  1306. 

Oath  of  office,  328. 

Offenses  against,  1337-1345. 
POST3IASTER  GENERAL: 

Bonds  of  Navy  mail  clerks  and  assistants  to  be  in 
amounts  fixed  by,  1387, 1388. 

Duties  of,  329. 

Envelopes  for  departments  procured  by,  including 
printing,  1239, 1240, 1291. 

Navy  mail  clerks  designated  by,  1306. 

Ocean  mail  vessels  not  to  be  employed  by,  unless 
approved  by  Secretary  of  the  Navy,  1216,  1217. 

Report  to,  of  inspection  made  by  naval  officer  of  ocean 
mail  vessel,  1216,  1217. 
POSTMASTERS: 

Recruits  enlisted  by,  1419. 
POST-MORTEM  EXAMINATIONS: 

Authority  of  naval  medical  officers  to  perform  autop- 
sies, 460,  461. 
POST  OFFICE  DEPARTMENT: 

General  provisions  relating  to  327-329. 

Ocean  mail  vessels  constructed,  subject  to  approval 
of  Secretary  of  the  Navy,  1216. 
POWDER: 

See  Explosives. 

Inspection  of,  by  States,  49. 

Purchase  of  gunpowder  without  advertising,  1113. 
POWER  OF  ATTORNEY: 

Assignment  of  claims  against  the  United  States,  1093. 

Assignment  of  wages  by  enlisted  men,  573,  892. 

Forgery  of,  1322, 1323. 


PRECEDENCE: 

Advancement  in  numbers;  effect  on,  652, 691, 1429. 
Aid  or  executive  of  commanding  officer,  669. 
Army  and  Marine  Corps,  930,  931. 

and  Navy,  602,  667. 

Navy  and  Marine  Corps,  931. 
Assistant  civil  engineers,  1474. 

surgeons,  1426. 
Brigadier  generals  and  rear  admirals  of  lower  half,  665- 

667,  1501. 
Chief  of  Naval  Operations,  1418. 
Chiefs  of  bureaus,  367-371. 
Coast  and  Geodetic  Survey,  members  serving  with  ■ 

Navy,  1480. 
Coast  Guard  and  Navy  officers,  705, 1456. 
Coast  Guard  officers  appointed  to  permanent  Navy, 

1550. 
Commanding  officers  and  subordinates  having  earlier 
date  of  commission,  576. 

of  vessels  and  naval  stations,  669. 
Commissions  numbered  when  issued  on  same  date,  669. 
Conflict  in  statutes  relating  to,  690,  691. 
Constructive  service  credited  for,  691,  694,  1390. 
Courts-martial,  members  of,  704, 1016. 
Date  of  commission  governs;  all  officers  entering  Na\T 
after  March  4,  1913;  1390. 

Army  and  Navy  officers  of  corresponding  grade, 
667. 

Coast  Guard  and  Navy,  1456. 

dental  officers,  1421. 

line  officers,  668. 

Marine  Corps  and  Navy,  667. 

Naval  Reserve  Force,  1511. 

staff  officers,  1429. 
Date  stated  in  commission  determines,  652. 
Dental  officers,  Na\-y,  1421. 
Effect  of,  on  promotion,  693,  694. 
General  provisions  relating  to,  662-706. 
Graduates  of  Naval  Academy,  687,  765. 
Importance  of  questions  involving,  689. 
Length  of  service,  computation  of,  691. 

line  and  staff  officers,  689-695. 

officers  having  same  date  of  commission,  668. 
Line  and  staff  officers,  in  processions,  courts-martial, 
and  boards,  etc.,  704. 

length  of  service,  689-695. 
Line  officers,  668. 

detailed  to  engineering  duty,  1435. 
Loss  of  numbers;  effect  of,  691,  1429. 
Marine  Corps  and  Navy,  667. 

Marine  officers,  reinstated  or  given  probationary  ap- 
pointments, 1461, 1462. 
Medical  officers,  1426. 

not  disturbed  by  act  of  August  29,  1916;  1480,  1481. 
Midshipmen  appointed  after  graduation,  687,  765. 
Naval  Resers-e  Force  officers  appointed  to  permanent 
Navy,  1550. 

and  regular  Navy,  1511. 
Promotion  by  selection,  effect  on,  652,  669,  694,  1433. 
Rear  admirals  and  brigadier  generals,  665-667, 1501. 
Regulations  governing;  right  to  change,  466. 

validity  of,  785. 
Retired  officers,  704. 

commanding  squadrons  in  time  of  war,  660. 
Rule  for  determining;  graduates  of  Naval  Academy, 

689. 
Secretary  of  the  Navy  has  authority  to  determine,  667, 

668. 
Selected  officers,  how  determined,  652, 669,  694, 1433. 
Staff  officers;  advancement  in  rank  according  to,  1426. 


1663 


INDEX. 


PRECEDENCE— Continued. 

Staff  officers;  date  of  commission,  1390, 1429. 
length  of  service,  CS9-695. 
not  entitled  to  additional  nuarters  by  virtue  of, 

695. 
transferred  from  temporary  and  reserve  service, 

1.550. 
who  have  gained  or  lost  numbers,  691, 1429. 
Staff  and  line  officers,  689-695,  704. 
Suspension,  officers  under,  668,  669. 
Temporary  commission,  669. 
Temporary  officers  appointed  to   permanent  Navy, 

1550. 
Two  commissions  in  same  rank,  669. 
Warrant  officers,  1269. 
PRECEPTS: 

General  courts-martial,  1015, 1018. 
PREFERENCE: 

See  Civil  establishment;  Discharge;  Soldiers  and  sailors. 
PREMIUMS: 
See  Bonds. 

Bonds,  rate  chargeable,  etc.,  21 1 . 
Recruiting  expenses ;  estimates  and  appropriations  for, 

1103. 
Sale  of  bills  of  exchange:  credited  to  pay,  miscella- 
neous, 1222. 
PRESENCE: 
See  Absence. 

Accused;  decisions  relating  to,  126-128, 1030. 
Candidate  before  promotion  board,  723,  728. 
PRESENTS: 

Contributions  for,  t  o  superiors,  1073. 
Foreign;  acceptance  of,  by  officers,  75. 

Governments  to  tender  to  officers  through  State 
Department,  1187. 
Superior  officials  not  to  accept,  1073. 
PRESENT  TENSE: 

Includes  future,  in  construing  criminal  code,  1355. 
PRESERVED  3IEATS: 

Purchase  of,  for  Navy,  1115. 
PRESIDENT: 

&ee  Appointments;    Commission;    Courts-martial; Dele- 
gation of  powers;  Recess  appointments. 
Acting  assistant  surgeons  appointed  by,  1261. 
Acts  through  heads  of  departments,  191. 

through  officers  of  the  Navy,  191,  500,  501. 
through  Secretary  of  the  Navy,  342,  343,  344,  474, 
500,  586,  642,  643,  787,  956,  957. 
Appeals  to,  79. 

in  military  cases,  83. 
Appointments  and  promotions;  constitutionality  of 
statutes  relating  to,  647,  648. 
Congress  can  not  require  him  to  make,  767. 
without   consent   of  Senate;  accounting   officers 
notified,  1072. 
Attorney  General's  opinion  required  by,  83, 282. 
Bonds  of  disbursing  officers  may  be  increased  by,  1098. 
Can  not  encroach  upon  powers  of  Congress,  58. 
Can  not  reopen  acts  of  prior  administration,   734. 
Chiefs  of  Ijureaus  do  not  act  for,  500. 
Classification  of  naval  vessels  established  by,  1277. 
Coal  prices  fixed  by,  for  Army  and  Navy,  Alaskan 

mines,  1307. 
Commander  in  chief,  81-83,  773. 
Commander  in  chief;  authority  to  designate  command 
of  joint  forces,  443,  444. 
command  of  naval  vessels  and  squadrons  assigned 

by,  772,  773,  1277. 
Congress  can  not  interfere  with,  58,  59,  81,  578. 
Congress  may  restrict  powers  of,  954. 
officering  and  manning  of  naval  vessels,  775. 


PRESIDENT-Continued. 

Commissions  of  officers  delivered  after  adjournment  of 

Senate:  previously  confirmed,  1072. 
Confirmation  of  death  sentence,  1036. 

of  sentence  dismissing  commissioned  or  warrant 
officer,  1036. 
Congress  can  not  interfere  with  powers  of,  58,  59,  81, 

578. 
Constitutionality  of  statutes  relating  to  retirement,  617. 
Courts-martial  may  be  convened  by,  83, 1015, 1310. 

power  to  mitigate  sentences  of,  85, 1053, 1054. 
Courts  without  power  over,  77. 

Dismissal  of  midshipmen;  written  approval  required, 
12S6. 
of  officers,  97,  441, 1010-1014. 
with  consent  of  Senate,  1011. 
Examinations  for  appointment  in  Marine  Corps  pre- 
scribed by,  1270. 
Examining  boards;  action  on,  724-728, 1189, 1481. 

revocation  of  action  on,  596,  6.30,  728,  734. 
Execution  of  laws;  duty  to  see  to,  101. 
Executive  power  vested  in,  77. 
General  courts-martial  may  be  convened  by,  83,  1015, 

1310. 
Limitations  of  punishment  in  time  of  peace  to  be  fixed 

for  Navy,  1032-1084. 
Loan  of  naval  equipment  to  miUtary  schools,  1277. 
Medals  and  decorations  may  be  conferred  on  foreign 

military  forces,  1517. 
Medals;  duplicates  may  be  issued  by,  1282. 
Medals  of  honor,  Na^-y  crosses,  etc.,  awarded  by, 

1521-1523. 
Midshipman  from  Porto  Kico  appointed  by,  1281. 
Mitigation  of  court-martialsentences,85, 1053, 1054. 
Naval  officers  act  for,  191,500,  501. 
Opinions  required  from  heads  of  departments,  83,  282. 
Pardoning  power,  ^3. 
Power  over  subordinates,  82, 101, 102. 
Promotion  of  officers;  seniority  law  not  obligatory  on, 

93. 
Recess  appointments;  accounting  officers  notified  of, 

1072. 
Regattas  or  marine  parades;  officials  designated  to 

enforce  regulations,  1301. 
Regulations:  approved  by.  Navy,  784. 
cannot  usurp  powers  of  Congress,  784. 
deck  courts;  issued  by,  1309. 
governing  supplies  to  be  made  by,  787, 788. 
to  be  prescribed  by;  purchase  of  discharge  from 
Navy,  1222. 
Reports    to,   concerning    business    of   departments; 

whether  in  arrears,  etc.,  1221. 
Retirement  of  marine  officer;  action  illegal ,  621,  822, 
968,  969. 
of  officers;  Secretary  of  the  Navy  acts  for,  642,  843. 
Retiring  boards;  action  on  proceedings,  616. 

action  on  proceedings;  illegal;  621,  622,  968,  969. 
may  direct  Secretary  of  the  Navy  to  refer  cases  to, 
598. 
Revision  of  examining  board's  proceedings,  724-728. 
Revocation  of  action  on  findings  of  examining  board, 

596,630,728,734. 
Sale  of  naval  vessels;  by  direction  of,  777. 

written  direction  required  if  less  than  appraised 
value,  1192. 
Secretary  of  the  Navy  acts  for,  342,  343,  344,  474,  500, 
586,  642,  643,  7S7,  956,  957,  1481,  1482. 
executes  orders  of,  342. 
Selection  for  promotion ;  action  on  report  of  board,  1433. 
Signing  of  commissions  by,  before  seal  affixed,  1248. 
Temporary  appointments;  accounting  officers  notified, 
1072. 


1664 


INDEX. 


rHESIDENT— Continued. 

Temporary  appointments;  power  to  make,  473. 
Threats  against;  punishment,  1469. 
War  powers,  38,  39,  58. 
PRESUMPTIONS: 
,      Knowledge  of  the  law,  477. 
Line  of  duty,  611. 

Official  duties  properly  performed,  352. 
PREVIOUS  ADMINISTRATION: 

See  Heads  of  departments;  lies  judicata. 
PRINCE: 

Acceptance  of  presents  from,  75. 
PRINCIPALS: 

Definition  of,  criminal  code,  1354. 
PRINTERS: 

Enlisted  men  advanced  to  printer,  first  class,  and 
chief  printer,  1423. 
PRINTING  AND  BINDING: 

Act  of  January  12, 1895;  1230-1240. 

Accounts  of  Public  Printer  with  departments;  report 

concerning,  1231, 1232. 
Accumulated  documents  in  departments;  disposal  of, 

1234. 
Allotments    of    Congress    and    departments   jointly 
charged  with  cost,  1285. 
of  departments;  chargeable  with  blanks,  flUng  de- 
vices, etc.,  1278. 
portion  to  be  reserved  for  special  purpose,  1285. 
American  Ephemeris  and  Nautical  Almanac,  number 
ofcopies,  1234, 1278. 
sale  of,  1234, 1235. 
AppUcation  of  private  parties  for  printing  additional 

copies,  1232. 
Apportionment  of  departmental  allotments,  1285. 
Appropriations  must  be  specific,  1296. 

not  to  be  exceeded,  1238. 
Authority  of  law  required  for,  1237, 1239. 
for  departmental  publications,  1284. 
for  printing  periodicals,  1525. 
Bills  and  resolutions;  distribution  of  to  departments, 

1238. 
Binding;  style  of,  1232, 1237. 
Blank  books;  work  to  be  done  at  Government  Printing 

Office,  1525. 
Blanks;  PubUc  Printer  to  furnish  to  departments,  1278. 
Blue  Book;  Official  Register  of  the  United  States,  1235, 

1236. 
Books  and  maps  transferred  by  departments  to  Li- 
brary of  Congress,  or  public  library,  D.  C,  1280. 
Books;  departmental;  restrictions  on  printing,  1284. 
for  duplicating  processes;  Public  Printer  tofiu-nish 
to  departments,  1278. 
Bureaus,  Navy  Department;  printing  must  be  done  at 

Government  Printing  Office,  378. 
Catalogue  of  Government  pubUcations,  1234. 
Compliments  of  officer  not  to  accompany  distribution 

of  documents,  1236. 
Congressional  Directory;  printing  and  distribution  of, 

1235. 
Congressional  Record;  distribution  of,  1235. 

to  be  examined  by  departments  and  documents 

ordered  therefrom,  1238. 

Copyright  of  Government  publications  forbidden,  1232. 

of  maps,  charts,  etc.;  purchase  of  by  Hydrographic 

Office,  1236, 1237. 

Cost  of,  divided  between  department  and  Congress  in 

certain  cases,  1285. 
Defijiition  of  executive  and  judicial  departments,  192. 
Delays  in  printing,  1230. 

copy  and  illustrations  to  be  furnished  within  one 

year,  1237. 
Joint  Committee  on  Printing  to  prevent,  1525. 


PRINTING  AND  BINDING— Continued. 

Delays  in  printing;  time  for  furnisliing  copy  to  Public 

Printer;  annual  reports,  1416,  1417. 
I>epartmcntal  edition  printed  concurrently  with  usual 

number,  1300. 
Departmental  publications;  distribution   by   Public 
Printer,  1384, 1385. 
furnished  designated  depositories,  etc.,  1233. 
furnished  Library  of  Congress,  1273,  1274. 
furnished  Superintendent  of  Documents,  1234. 
illustrations  restricted,  12S4. 
number  of  copies  limited,  1238. 
restrictions  on  printing,  1284. 
Designated    depositories;    departmental    publication 
distributed  to,  1233. 
furnished  with  publications,  1300. 
libraries  of  departments,  Naval  Academy,  etc., 
1240. 
Detail  of  employees  from  Government  Printing  Office, 

1359,  1360. 
Disposal  of  accumulated  documents  in  departments, 

1234. 
Distribution;  "compliments"  of  officers  omitted,  1236. 
departmental  pubUcations  by  Public  Printer,  1384, 
1385. 
funished  Library  of  Congress,  1273,  1274. 
documents;  accumulated  in  departments,  1234. 
furnished     departmental     libraries,     Naval 

Academy,  etc.,  1238,  1240. 
reports,  bills  and  resolutions,  1238. 
printed  matter,  to  designated  depositories,  etc., 

1233,  1300. 
publications;    measures  to  prevent  duplication, 
waste,  etc.,  1525. 
printed  for  or  received  by  departments,  1239. 
Documents;  acciunulated  in  departments;  disposal  of, 
1234. 
and  books;  exchange  of,  1239. 
catalogue  of,  1234. 
comprehensive  index  and  consoUdated  index  of,  to 

be  published,  1234. 
departmental;  number  Umited,  1238. 

restrictions  on  printing,  1284. 
either  House  may  order  printing  of,  1230. 
numbering  of,  1300. 

ownership  of  Government  pubUcations,  1236. 
restrictions  on  illustrations,  1284. 
Duplication;  measures  to  prevent,  1525. 
Editions;    number  of,  Hydrograpiiic  Office  pubUca- 
tions, 1238. 
two  or  more  permitted  of  departmental  publica- 
tions, 1285,  1286. 
Eleetrotyping,  matter  needed  a  second  time,  1232. 
Envelopes  for  departments  to  be  procured  by  Post- 
master General,  1239,  1240,  1291. 
excepted  from  general  provisions  concerning,  1296. 
restrictions  on  printing  contained  on,  1291. 
Ephemeris  and  Nautical  Almanac,  extra  copies  to  be 
printed,  1234. 
number  of  copies,  1278. 
sale  of,  1234,  1235. 
Estimates;    amount  of  aUotment  to  be  reserved  by 
department,  1285. 
Hydrographic  Office,  to  be  separate  and  detailed, 

1197. 
Navy  Department,  1102. 

of  cost;  furnished  departments  by  PubUc  Printer, 
1239. 
to    accompany    documents    before    oidered 
printed  by  Congress,  1230. 
submission  to  Congres.s,  1101,  1232,  1296. 
to  Congress  by  PubUc  Printer,  1248. 


1665 


INDEX. 


PRIXTIXG  AND  BINDING— Continued. 
Exchange  of  documents  and  books,  1231). 
Executive  departments;   distribution  of  publications 
by,  1239,  1384,  1385. 
libraries  to  receive  publications,  1240. 
submitting  reports  and  documents  to  Congress; 

estimates  must  accompany,  1230. 
work  to  be  done  at  Government  Printing  Office, 
192,  1101,  1237,  1525. 
Executive  and  judicial  departments,  construed,  192. 
Extra  copies  of  certain  publications  to  be  printed, 

1234-1230,  1238,  1272. 
Filing  de^•ices;    Public  Printer  to  furnish  to  depart- 
ments, 1278. 
Foreign  hydrographic  surveys,  HOC,  1237. 
Forms;    Public  Printer  to  furnish  blanks,  etc.,  to  de- 
partments, 1278. 
and  style  of  printing  and  binding,  1232,  1237,  1238. 
General  provisions  relating  to,  12:50-1240. 
Government  Printing  Office;  detail  of  employees  from, 
1359,  1360. 
duties  of  Public  Printer,  1231. 
to  do  all  printing,  binding,  blank-book  work;  ex- 
cept, 192,  1101,  1237,  1525. 
Heads  of  departments;   approval  required  for  reprint- 
ing, 12S1,  1282. 
certificate  as  to  necessity  for  illustrations,  1284. 
certificate  as  to  necessity  of  matter  embodied  in 
annual  reports,  1239. 
Hydrographic  Office;    separate  estimates  and  appro- 
priations for,  1197. 
publications;  number  of  copies  fixed  by  Secretary 
of  the  Navy,  1238. 
preparation  and  sale  of,  1230,  1237. 
proceeds  from  sale  of,  1237,  1543. 
sold  at  cost,  390. 
Hydrograpie  surveys;  foreign,  1100,  1237. 
Illustrations;  restrictions  on,  1239,  12S4. 

and  maps  must  be  furnished  before  printing  of 
documents,  1237. 
Index  of  documents  to  be  published,  1234. 
Joint  congressional  committee  on,  1230. 
Journals;  authority  of  law  necessary  for,  1525. 
Libraries  of  departments.  Naval  Academy,  etc.,  desig- 
nated depositories,  1240. 
Library  of  Congress;   departmental  publication?:,  etc. 

furnished  to,  1273,  1274. 
Magazines;  authority  of  law  necessary  for,  1525. 
Manifold  blanks;   Public  Printer  to  furnish  to  depart- 
ments, 1278. 
Nautical  Almanac;  number  of  copies,  1234,  1278. 

sale  of,  1234, 1235. 
Naval  InteUigence  publications;   extra  copies  author- 
ized, 1272. 
Naval  Observatory;  meteorological  and  magnetic  ob- 
servations, etc.;  number  printed,  1235. 
Navy  Register,  nvunber  of  extra  copies  to  be  printed, 

1235. 
Neglect  and  delays  in,  1230. 
measures  to  remedy,  1525. 
time  for  furnishing  copy  to  printer,  1237. 
Numbering  of  Congressional  documents,  1300. 
Number  of  copies;  American  Ephemeris  and  Nautical 
Almanac,  1234,  1278. 
departmental  reports,  publications  or  documents, 

1238. 
Hydrographic  Office  publications,  1238. 
Naval  InteUigence  publication';,  1272. 
Navy  Register,  1235. 

two  or  more  editions  jjcrmitted,  12S5,  1286. 
Number  of  documents,  reports,  etc.,  which  may  be 
ordered  by  deparlanents  interested,  1238. 


PRINTING  AND  BINDING— Continued. 

Observations  of  the  Naval  Observatorj-;   number  of 

copies  to  be  printed,  1235. 
Official  Register  of  the  United  States;  printing  and 

distribution  of,  12.35,  12.30. 
Ownership  of  fiovemment  publications,  1236. 
Periodicals;  authority  of  law  necessary  for  printing, 

1525. 
Public  Printer;  duties  of,  1231. 

to  decide  as  to  forms  and  style,  1232. 
to  distribute  departmental  publications,  13S4, 1385. 
to  furnish  blanks,  blank  books,  filing  devices,  etc., 
1278. 
Register  of  the  Navy;  number  of  copies,  1235. 

of  the  United  States,  printing  and  distribution  of, 
1235. 
Reports,  bureau  chiefs;  heads  of  departments  to  direct 
whether  shall  be  printed,  1238. 
distribution  of;  compliments  of  officer  omitted, 
1236. 
to  departments,  1238. 
departmental;   allotments  chargeable  with  cost, 

1285. 
general  provisions  relating  to,  383-385. 
number  of  copies,  1238. 
of  publications  issued  by  departments,  1556. 

received  and  distributed  by  departments,  1239. 
of  work  done  by  Public  Printer  for  departments, 

1231. 
restrictions  on  illustrations,  1284. 
time  for  furnishing  copy  to  Public  Printer,  227, 

1416,  1417. 
to    Congress    from    departments;    estimates  ac- 
companying, as  to  cost,  1230. 
type  and  form,  1238. 

unnecessary  matter  excluded  from,  before  print- 
ing; illustrations,  12:39. 
Reprinting  of  documents  for  sale,  1281, 1282. 
Requisitions;   all  copy  to   be    fiunished  within   one 
year,  1237. 
by  heads  of  departments;  report  to  Congress  con- 
cerning, 1231. 
by  private  parties  for  additional  printing  of  docu- 
ments, 1232. 
certificate  of  necessity  contained  in,  1239. 
departmental;  restrictions  on  printing  to  he  done 

under,  1284. 
for  blanks,  blank  books,  filing  devices,  etc.,  1278. 
for  documents,  reports,  etc.,  to  be  submitted  from 

examination  of  Congressional  Record,  1238. 
for,  made  by  heads  of  departments,  1239. 
for,  signed  by  chief  of  the  department,  1238. 
number  of  copies  which  may  be  ordered  on,  by 

departments,  123S. 
on  Postmaster  General  for  envelopes,  1239,  1240. 
reprinting  publications  for  sale;  head  of  depart- 
ment must  approve,  1281,  1282. 
Resolutions  and  bills;  distribution  to  departments, 

1238. 
Sale  of  documents;  acciunulated  in  departments,  1234. 
by  Superintendent  of  Documents,  1233,  1284. 
approval  of  department  required,  1281, 12>i2. 
disposal  of  proceeds,  1282. 
to  private  parties,  1232. 
Sale  of  duplicate  stereotype  or  electrotype  plates  to 
private  parties,  1232. 
of  Ephemeris  and  Nautical  Almanac,  1234,  1235, 

1278. 
of  Hydrographic  Office   publications,   390,    1236, 
12.37,  1343. 
Session  laws ;  distribution  of,  1235. 


1666 


INDEX. 


PRINTING  AND  BINDING-Continued. 

Secretary  of  the  Navy  may  prescribe  number  of  copies; 

Hydrographic  publications,  1238. 
Stationery  printed  in  course  of  manufacture  excepted 

from  general  provisions,  1296. 
Statutes;  printing  and  distribution  of,  1235. 
StereotiTDing,  matter  needed  a  second  time,  1232. 
Style  and  forms;  printing  and  binding,  1232,  1237,  1238. 
Superintendent  of  Documents;  departmental  publica- 
tions furnished  to,  1234. 
distribution  of  departmental  publications  by,  1233. 
duties  of,  1233,  1234. 

orders  for  reprinting  subject  to  approval  of  depart- 
ments, 1281, 1282. 
sale  of  documents  by,  1233,  1234, 
to  distribute  publications  to  departmental  libra- 
ries, etc.,  1240. 
Time  for  furnishing  copy  of  annual  reports  to  Pubhc 
Printer,  1416,  1417. 
and  illustrations  to  Public  Printer,  1237. 
Titles  of  documents  and  reports,  1300. 
Transfer  of  printing  equipment  to  Public  Printer,  lo31. 
Type,  size  of,  determined  by  Public  Printer,  1232. 

style  of,  for  annual  reports,  1238. 
Usual  number;  documents  ordered  printed  liy  Con- 
gress, 1232. 
estimates  to  accompany  reports  to  Congress  as  to 

cost  of  printing,  1230. 
exceeded  for  certain  publications,  1234-1236,  1238, 

1272,  1278. 
exceeded  when  ordered  by  either  House,  12;?2. 
not  to  be  printed  of  American  Ephemeris  and 

Nautical  Almanac,  1278. 
printed  concurrently  with  departmental  edition, 
1300. 
Waste  in;  measures  to  prevent,  1525. 
PRINTS: 

Restrictions  on  pinrchase  of,  1073. 
PRISONERS: 

See  Accused;  Hard  labor;  Punishments. 

Allowances  to;  clothing  and  gratuity  on  discharge, 

1310,  1311. 
Amenable  to  trial  during  imprisonment,  558,  976. 
Bringing  into  court  as  witnesses,  403. 
Commutation  of  rations,  898. 
Death  in  line  of  duty,  613,  614. 
Dental  treatment,  903. 
Discharged;  not  troops  of  United  States,  1180. 

transportation  and  clothing  furnished,  1313. 
Discharge  of  officer  serving  sentence  of  civil  court,  1010, 

1012,  1503. 
Escape;  pimishment  of  naval  master-at-arms  permit- 
ting, 985. 
miUtary  guard  charged  with  manslaughter  in  at- 
tempting to  prevent,  403. 
Habeas  corpus  proceedings  for  release  of,  401. 
Hiring  out  labor  of,  forbidden,  1198. 
Jurisdiction  to  punish,  558,  976. 
Manual  for  government  of  naval  prisoners;  force  of 

regulations,  786. 
May  be  confined  in  civil  prisons  and  penitentiaries, 

983,  984. 
Merchant  seamen;  confinement  on  naval  vessel,  576. 
Not  in  the  custody  of  the  Secretary  of  the  Navy,  404. 
Pay  after  enlistment  expires,  558. 

of  naval  persoimel  in  hands  of  civil  or  military 
authorities,  588,  589,  825,  871,  950. 
Presence  of  at  trial,  127. 

Punishment  of  master-at-arms  refusing  to  receive  or 
suffering  to  escape,  985. 


PRISONERS— Continued. 

Subject  to  discipline  of  institutions  in  which  confined, 

983,  984. 
Time  in  confinement  not  a  period  of  service,  589. 
Transportation  to  penitentiary,  984. 
Treated  as  convicts,  983,  984. 
United  States;  medical  treatment,  459. 
Witness  fees  in  case^  of,  414. 
PRISONERS  OF  WAR: 

Insane;  admission  to   St.  Klizabeths  Hospital,  1417, 

1418. 
Pay  of  officers  and  men  attached  to  captured  vessel,  891 . 
PRISONS: 

See  Pcnitcntiarks. 

Midshipmen  not  to  be  confined  in,  for  liazing,  1287. 
Naval  courts-martial  may  sentence  offenders  to  civil 
institutions,  983,  984. 
PRIVATE  DETECTIVES: 

See  Detectives.  » 

PRIVATE  PROPERTY: 

Damaged  by  naval  personnel;  claims;  settlement  of, 

1358,  1359,  1504,  1508,  1527,  1545. 
Deceased  inmates.  Naval  Home;  disposition  of  eficcts, 

1395. 
Deceased  personnel.  Navy;  disposition  of  effects,  786, 

1503. 
Effects  of  deceased  persons  on  naval  vessels;  disposi- 
tion of,  995. 
of  enUsted  men  lost  on  vessels;  reimbursement; 

permanent  appropriation  for,  1106. 
of  naval  personnel  lost  in  service;  reimbursement, 
1492-1494. 
Embezzlement  of,  by  public  officer,  i;331. 
Importing  in  naval  vessel,  989. 
Injuring  in  any  way;  punishment.  Navy,  98.5. 
Lost  in  naval  service;  decisions  relating  to,  269-274. 
jurisdiction  of  accounting  officers  and  Secretary  of 
the  Nax-y,  272. 
Lost  on  sunk  or  captured  vessels,  269. 
Reimbursement  for  loss  or  damage,  naval  service, 

1492-1494. 
Seizure  by  military  commander,  40. 
Transportation;  household  effects,   naval  personnel, 
1535, 1536. 
on  naval  vessel,  985. 
PRIVATE  REPRIMAND: 
See  Reprimand. 

Commanding  officer  may  inflict  as  punislmaent,  1002. 
PRIVATES: 

First  class.  Marine  Corps;  number  of;  rank  established, 
1478. 
PRIVILEGED  CO>IMUNIC.\TIONS: 

Official  corraspondence  in  departments,  356,  357. 
Report  by  chief  of  bureau  to  head  of  department,  350. 
PRIZE: 

.\ssignment  of  prize  money  by  enlisted  men,  573. 
Capture  and  condemnation  of  piratical  vessels,  li:M. 
Distribution  among  captors;  law  authorizing,  repealed, 

1268. 
Cieneral  provisions  relating  to,  1137-1147. 
Interference  with  disposition  of,  etc.,  1325. 
List  of  persons  claiming  share  of,  in  Navy,  994. 
Maltreating  persons  on;  pimishment,  Navy,  994. 
Money  accruing  to  United  States  credited  to  Navy 

pension  fund,  1153. 
Permanent  appropriation  for  payment  to  captors,  1 10(j. 
Property  taken  on  inland  waters,  1170. 
Removing  property  from;  punishment,  Navy,  994. 
PRIZEFIGHTS: 

Films  and  pictures;  offenses  relating  to,  1371,  1372. 


1667 


INDEX. 


PROBATION: 

Kmployei's  in  civil  establishment,  340. 
PKOBATIOXAKY: 

Appointments;  acting  ensigns  for  engineering  duty, 
1435. 
Marine  Corps,  1461, 14(J2. 
PROCEDURE: 

Errors  of;  courts-martial;  review  by  ci^^l  courts,  401- 
402. 
due  process  of  law  requirement,  125. 
PROCESS: 

Civil  authorities:  service  on  persons  in  naval  or  civil 

service,  292,  293. 
Courts-martial  may  issue,  for  witnesses,  1310. 
Right  of  accused  to  have,  for  obtaining  witnesses,  129, 
132, 133. 
PROCESSIONS: 

Precedence  of  line  and  staff  oflBcers,  704. 
PROFANITY: 

Pimishable  by  naval  court-martial,  984. 
PROFESSIONAL: 

Examination  for  promotion,  711-721. 
PROFESSORS: 

Civilian;  Naval  Academy;  number  and  compensation 

of,  14.57, 1535. 
Civilian;  Naval  Academy;  quarters,  heat  and  light, 

701. 
Line  officer  detailed  to  Naval  Academy;  relative  rank 
with  Army  officers,  667. 
PROFESSORS  OF  IVIATHEMATICS: 
Advancement  in  rank,  682,  683. 
Appointment  of,  503,  504. 

discontinued,  1428. 
Designation  a  misnomer,  771. 
Duties,  391,  504,  505,  771. 
General  provisions  relating  to,  503-505. 
Number,  503. 
Pay,  794,  803. 
Rank,  680,  682,  683. 

Supervision  of  Nautical  Almanac  Office,  391. 
PROFITS: 

See  Ship's  stores. 

Midshipmen's  store;  public  money,  232. 

Ships'  stores,  1359. 

not  public  money,  232. 
PROHIBITION: 

Intoxicating  liquor,  near  military  camps,  and  to  per- 
sons in  uniform,  etc.,  1477, 1478. 
Writ,  of  not  issued  to  courts-martial,  977. 
PROJECTILES: 

Restrictions  on  purchase  of,  1395, 1396. 
PROMOTION: 

See  Advancement;  Appointment;  Examinations;  Exam- 
ining boards. 
Acceptance;  effect  of,  654. 

presumed,  97. 
Acting  ensigns  to  lieutenant  (junior  grade),  1436. 
Additional  number  officers,  1275, 1276. 
by  selection,  1430,  1432. 
Marine  Corps,  1459. 

war  service  or  extraordinary  heroism,  1289. 
Advancement  in  rank  without  change  of  grade,  682. 
of  enlisted  man  held  not  to  be,  513. 
of  naval  officers  for  extraordinary  heroism,  453, 
454,734-736,921,933. 
Age  requirements,  line  officers,  1434. 
Antedating  rank  on,  649-651,  734,  931, 1459. 
Appointment  distinguished;  definitions,  93,  513,  522, 

653,  6.54,  830,  930. 
Assistant  surgeons  to  passed  assistant  surgeon,  1251. 
Aviation  officers,  1439. 


1'ROMOTION— Continued. 

Chaplains  in  Navy,  1396,  1397. 
Civil  establishment,  1383. 

jurisdiction  of  accounting  officers,  242. 
Commencement  of  pay  on;  naval  officers,  830-838, 1178, 

1390. 
Commissioned  warrant  officers  to  ensign,  1314. 
Commission;  erroneous,  103,  685,  708,  709. 

withheld,  652. 
Conduct  in  battle;  exceeding  number  in  grade,  736, 921. 
Confirmation;  Senate's  consent  indirectly  given,  652. 
Constitutionality  of  statutes  requiring  examinations, 

709. 
Courts  can  not  review  proceedings,  620,  621 . 
Court-martial  of  officer  pending,  652. 
Date  of,  464,  465. 

rank,  649-6.51, 734,  931, 1390, 1459. 

officer  promoted  after  suspension,  731-733. 
Death  of  officer  before  accepting,  97,  652. 
Definition  of;  appointment  distinguished,  93,  513,. 522, 
653,  654,  830,  930. 

officer  passing  from  lower  to  upper  half  of  rear 
admirals,  736. 
Delayed;  new  physical  examination  not  required,  709 
Dental  officers,  1421. 

service  credited  for,  1473.  • 
Disqualification;  seniority    law    not    obligatory    on 

President,  93. 
Ensigns,  junior  grade,  1190, 1191. 

to  lieutenant  (junior  grade),  1264. 

length  of  service  requirement  suspended,  1551. 
Errors  in  commission;  685. 

officer  not  qualified,  708,  709. 
Fleet  officers  during  war;  admiral  and  vice  admiral, 

1481. 
Increase  in  pay  held  not  to  be,  341. 

held  to  be,  736. 
Law  changed;  effect  on  existing  vacancies,  648. 
Length  of  service;  when  service  commences,  464, 465. 
Lieutenants  (jimior  grade)  to  lieutenant,  1425. 

examinations  required,  1190. 

length  of  service  requirement  suspended,  1551. 
Machinists  to  chief  machinist,  1314. 
Marine  Corps,  924-927. 

Army  laws  extended  to,  1219. 

common  list,  1461. 

date  of  rank,  1459. 

for  conduct  in  battle  or  extraordinary  heroism,  921, 
933. 

permanent  staff  officers,  1460. 

to  grade  of  brigadier  general,  1459. 
Medical  Corps,  464. 
Moral  unfitness  for,  597,  623,  630. 

discharge;  pay,  630, 1189. 

what  constitutes,  624-627. 
Naval  Reserve  Force,  1510. 
Navy;  general  provisions  relating  to,  707-737. 
Oath  of  office,  654. 

Passed  assistant  surgeons  to  surgeon,  1251. 
Pay  clerks.  Navy,  1406, 1407. 

Pay;  commencement  of,  in  higher  grade,  830-838, 1178, 
1390. 

of  officer  undergoing  examination  for,  709. 
Pharmacists  to  chief  pharmacist,  1420. 
Physical  unfitness;  Marine  Corps,  640,  641,  965. 

Navy,  640,  641,1366, 1433. 
Precedence;  effect  on  right  to,  693,  694. 
Professional  unfitness;  Marine  Corps,  1463. 

Navy,  729-734, 1433, 1550, 1.551. 
Rear  admirals;  selection  of,  1430, 1513. 

in  time  of  peace,  721 . 


1668 


INDEX. 


PROMOTION— Continued . 

Rear  admirals;  in  time  of  war,  454. 

Recess  appointment  not  confirmed;  status  of  officer, 

651. 
Retired  oflRcers;  in  time  of  war  or  emergency,  1512, 1513. 
prohibited,  1189. 
staff  corps;  length  of  service,  685. 
withdrawn  from  line  of,  654,  655. 
Retirement  of  officers,  Navy,  not  recommended  for, 
594,  91 1 . 
of  officers  pending  promotion,  592,  651,  832. 
Sea-service  requirement;  line  of  the  Navy,  1434. 
Selection;  line  officers,  1430-1434, 1551. 

line  and  staff;  time  for  convening  boards,  1529. 
Naval    Reserve    Force    above    lieutenant   com- 
mander, 1510. 
precedence  of  officers,  652,  669,  694, 14.33. 
professional  and  physical  examinations  required, 

1433. 
records  of  officers  examined  by  selection  board, 

722,  723. 
staff  officers,  1513. 
Senate's  consent  indirectly  given,  735. 
Seniority,  Army,  93. 

constitutionality  of  legislation  requiring,  647-648, 

681. 
Marine  Corps,  1461. 
Navy,  646,  680. 
staff  corps,  680,  681 . 
Staff  officers;  above  lieutenant  commander,  1513. 
below  lieutenant  commander,  1426. 
examinations  not  required,  except  for  advance 
mentinrank,  1481, 1482. 
Status  of  officer  pending,  651,  652. 
Supply  Corps,  471. 

effect  on  bonds ,  496. 
Temporary;  general  law  not  applicable  to,  721. 
selection  law  not  applicable  to,  1432. 
termination  of,  under  act  of  July  1,  1918;  1515. 
Thanks  of  Congress;  officer  receiving,  736. 
Vacancies  necessary  prior  to,  453. 
Vacancy  caused  by  promotion  of  additional  number 

officer  not  filled,  1275, 1276. 
Vested  right  to,  648. 
Warrant  officers,  510. 

to  commissioned  warrantofflcer,1266, 1267,  1282. 
to  ensign,  1277, 1280-1282. 
Wounds  in  line  of  duty,  not  bar  to,  709. 
PROPERTY: 

SeePrivate  property;  Public  property. 
Enemy,  confiscation  of,  40. 
Officeisnot,  124. 
PROPERTY  ACCOUNTS: 

See  Accounting  officers;  Accounts. 

Auditing  of,  1223. 

Bureau  of  Supplies  and  Accounts  to  keep,  1203. 

Jurisdiction  of  accounting  officers,  234. 

Loss  of  public  property;  charging  value  to  responsible 

officer,  788,  1223. 
Returns  to  be  examined  by  Paymaster  General  of 

Navy;  certificate  to  accounting  officers,  1223. 
Storekeeper  at  Naval  Academy  to  make  returns,  1304. 
PROPOSALS: 

See  Contracts. 
PROSECUTOR: 

General  courts-martial,  1020. 
PROVISIONAL: 

Rank,  grade  or  rating.  Naval  Reserve  Force,  1444. 
PROVISIONS: 

See  Contracts;  Stores;  Subsistence;  Supplies. 

Foreign  stations;  estimates  and  appropriations  for 

transportation.  Navy,  1103. 
Naval  vessels;  inspection  and  preservation  of,  995. 


PROVISIONS-Continued. 

Navy;  advertising  for  proposals  for,  1111. 
Transportation  for  Navy,  American  vessels,  1283. 
Wasting  or  permitting  waste;  punislmient.  Navy,  985. 
PROVISIONS  AND  CLOTHING: 

Name  of  bureau  changed  to  Supplies  and  Accounts, 
1218. 
PROVOKING  WORDS: 

Punislmient  for  using  in  Navy,  984. 
PUBLIC  ACCOUNTS: 

See  A ccounti7ig  officers;  Accounts;  Claims. 
PUBLICATIONS: 

SoePrinting  and  binding. 
PUBLIC   BUILDING  COMMISSION: 

Control  of  office  space  in  District  of  Colimibia,  1524, 
1525. 
PUBLIC  BUILDINGS: 

See  Buildings. 
PUBLIC  BUSINESS: 

Meaning  of;  mileage  law,  843,  844. 
Wording  of  orders  not  conclusive  as  to  character  of 
travel,  845. 
PUBLIC  HEALTH   SERVICE: 

Commissioned   officers  eligible  for   membership   on 

naval  courts-martial,  1494. 
Duties  in  time  of  war,  1279. 
Jurisdiction  of  Treasury  Department,  1283. 
Personnel  credited  with  service  in  other  organizations 

for  longevity  pay,  1533. 
Sale  of  naval  supplies  to  personnel  of,  1533. 
Service  credited  for  longevity  pay  in  Navy,  Marine 

Corps,  etc.,  1535. 
Subject  to  Navy  laws  in  time  of  war,  1491. 
Surgeon  General  of  Navy  to  detail  officer  for  advisory 

board,  1279. 
Transfer  of  lands,  buildings,  furniture,  etc.,  to,  1526, 
1559. 
PUBLIC   LANDS: 

See  Lands;  Military  reservations;  Naval  petroleum  re- 
serves; Naval  reservations;  Oil  lands;  Reservations. 
General  provisions  relating  to,  1083-1089. 
Military  or  other  reservations,  1087. 
Naval   petroleum   reserves,   use   of  proceeds;   fund 

created,  1399. 
Naval  reservation,  timber  lands,  1087-1089. 
Preservation  of  historic  monuments,  etc.,  on,  1288. 
Secretary  of  the  Interior,  supervision  by,  395. 
Timber  cut  from;  clearance  of  vessels  laden  with,  1125. 
PUBLIC  3IONEYS: 

See    Accounting    officers;  Accounts;    Appropriations; 

Crimes;  Disbursing  officers. 
Accounts;  distinct,  according  to  appropriations,  1097. 
examination  by  administrative  bureau,  1097. 
form  of,  1097. 

Navy  disbursing  officers,  render  direct  to  account- 
ing officers,  1097. 
premium  on  sale  of  public  securities,  1100. 
time  allowed  for  rendering,  1097. 
to  be  kept  of  receipts  and  expenditures,  1098. 
Advances  by  order  of  commanding  officer,  498. 

mileage  books,  commutation  tickets,  etc.,  paid  for 

in  advance  of  travel,  1282. 
partial  payments  to  contractors,  1369. 
pay  of  naval  establishment;  persons  on  distant 

stations,  838,  1099,  1100. 
pay  of  naval  officers,  1472. 
restricted,  1099,  1100. 
subscriptions  to  newspapers  and  periodicals,  1401, 

1408,  1409. 
witness  fees  and  mileage,  naval  courts,  1022, 1310. 
Attachment  by  creditors,  573,  574. 
Checks  lost  or  stolen;  duplicates,  1098, 1099. 


1669 


INDEX. 


PUBLIC  MONEYS— Continued. 
Converting,  990,  1098, 1329. 
Custodians;  duties  of,  109S. 
Definition  of,  232,  492,  493. 
Deposit  of;  by  disbursing  officers,  1096. 

contrary  to  law,  KWS,  1329. 
postal  employees,  1344. 

failure  of  disbursing  officers  to  make  as  required, 
1330. 

without  deduction,  1095,  1096. 
Disbursements;  additional  pay  for  making,  1067. 

currency  in  which  to  be  made,  1100. 
Disbursing  officers,  failing  safely  to  keep,  etc.,  1329, 

1330. 
Drafts  to  be  promptly  presented  by  disbursing  officers 

for  payment,  1100. 
Duplicate  checks  issued  for  lost  or  stolen,  1098,  1099. 
Duties  of  officers  to  keep  safelj',  1098. 
Embezzlement  of,  1328. 

by  naval  personnel,  990, 1170. 

by  postal  employees,  1344. 

by  public  officers,  1331. 

money  furnished  for  naval  service,  990, 1325. 
Exchanging  for  other  funds,  by  custodians,  etc.,  con- 
trary to  law,  1330. 

by  postal  employees,  1344. 

prohibited,  1098, 1100. 
Failing  safely  to  keep;  punishment,  1329,  1330. 
False  accounts  and  returns,  naval  personnel,  1170. 

accounts,  records  or  reports;  punishment,  1368. 

receipts;  punishment  for  giving  or  receiving,  990. 
General  pro^^sions  relating  to,  1095-1100. 
Larceny  of,  1328. 

of  checks;  duplicates  issued,  1098, 1099. 

of  money  furnished  for  naval  service  990, 1325. 
Loan  of,  by  officers  of  Supply  Corps,  497. 

by  postal  employees,  1344. 

contrary  to  law,  1329. 

prohibited,  1098. 
Loss  or  deficiency  of;  Secretary  of  the  Navy  may  re- 
lieve officers  from  responsibility  for,  1527,  1528. 
Lost  or  stolen  checks;  duplicates,  1098, 1099. 
Mess  funds;  commutation  of  rations,  902. 
Misappropriation  of;  furnished  for  naval  service,  990, 

132.5. 
Miscellaneous  receipts,  1095. 

purchase  of  discharge  by  enlisted  men,  1222. 

sale  of  maps,  charts,  etc.,  Hydrographic  Office, 
1.543. 

sales  of  garbage  from  general  mess,  899. 

sales  of  naval  vessels,  1192. 

sale  of  old  naval  material,  1190. 
Payments  of  to  be  made  when  directed,  1098. 
Pay,  miscellaneous,  credited  with  interest,  premiums 

and  exchange,  1222. 
Receipts  from  post  laundries,  Marine  Corps;  account- 
ing for,  1531. 
Regulations  of  Treasury  to  be  observed,  1098. 
Requisitions  for,  on  Treasury,  1104,  1225,  1220. 
Safe-keeping  of;  failure  of  officers,  1329, 1330. 

required,  1098. 
Special  disbursing  agents,  1095. 
Stolen  checks;  duplicates,  1098,  1099. 
Time  allowed  for  depositing,  1096. 
Transfer  of,  contrary  to  law,  1329. 

to  be  made  when  directed,  1098. 
Use  of,  contrary  to  law  prohibited,  1098. 
Warrants  for  drawing  appropriations  from  Treasury, 

1104. 
Withdrawing,  contrary  to  law,  1329. 
Withholding;  penalty  for,  1096. 

suits  to  recover,  1097,  1098. 


PUBLIC  OFFICERS: 

See  Civil  establishment;  Officers;  Officers  of  the  Marine 

Corps;  Officers  of  the  Navy. 
Acting  as  attorney  before  courts-martial,  departments, 

etc.,  1333. 
Bribery  of,  1325,  1326,  1334. 
Claims  against  United  States;  not  to  be  interested  in, 

1332. 
Compensation  to,  from  private  parties,  restricted,  1470. 
Deceased;  buildings  not  to  be  draped  in  mourning 
for,  1220. 
ex-officials;  closing  departments  for,  prohibited, 
1220. 
Deficiencies  prohibited;  removal  from  office  for  viola- 
tion, 1104,  1105. 
Double  salaries,  restrictions  on,  208,  1066-1071,  1177, 

1411. 
Employment  of  personal  services  in  excess  of  appro- 
priations restricted,  1104. 
General  provisions  relating  to,  1065-1073. 
Impersonation  of,  1323. 
Influencing  legislation,  1527. 
Membership  in  societies  or  associations,  1371. 
PUBLIC  PRINTER: 

SeePrinting  and  binding. 
PUBLIC  PROPERTY: 

See  Accounts;  Appropriations;  Buildings;    ContracUs; 

Lands;  Printing  and  binding;  Vessels  of  the  Navy. 
Accounts;  audited  by  Paymaster  General;  certificate 
to  accounting  officers,  1223. 
naval  supply  account  to  govern  purchase  and  issue 

of  stores,  etc.,  1366, 1367. 
to  be  kept  by  Bureau  of  Supplies  and  Accounts, 
1203. 
Advertising  sale  of,  1190. 

condemned  naval  supplies  and  material,  1204. 
naval  vessels,  1192. 
Appraisal  of  before  sale,  Navy,  1190, 1192. 
.\ppropriations  transferred  for  payment  of,  between 

bureaus  and  departments,  1409,  1536. 
Auction  sale  of  old  naval  material,  1190,  1204. 
Books;  exchange  of,  1239. 

departmental,  transferred  to  libraries,  1280. 
of  reference,  law  books,  etc.,  restrictions  on  pur- 
chase of,  1261. 
restrictions  on  purchase  of,  1073. 
Supreme   Court   reports   and    digests   furnished 
public  officers,  1365. 
Building  contracts  not  to  exceed  appropriations,  1116. 
Cannon  balls;  loan  or  gift  of  to  societies  and  municipali- 
ties, 1249. 
Clothing  and  small  stores  fund.  Navy,  1204. 
Clothing;  condemned;  sale  of ,  in  Navy;  proceeds,  1095. 

sale,  etc.,  prohibited,  1121. 
Commandeering  coal  in  Alaska  for  Army  and  Navy, 
1307. 
factories,  vessels,  etc.,  during  war,  1475, 1476. 
merchant  vessels  for  use  as  transports  or  cruisers, 

1218. 
ocean  mail  vessels  for  use  as  transports  or  cruisers, 

1217. 
suppUes  in  time  of  war,  1413, 
vessels  for  naval  purposes,  1467. 
Condemnation  of  land  for  buildings,  etc.,  1199. 
of  land  for  military  purposes,  1490,  1491. 
proceedings  to  acquire  timber,  material,  supphee, 
etc.,  for  Navy,  1518. 
Courts  of  States;  jurisdiction  over  Government  prop- 
erty, 773,  774. 
Custody  of,  193,  194. 

Delivering  less  amount  than  receipt  calls  for,  990. 
to  contractors  in  part  pajmaent,  778. 


1670 


INDEX. 


PUBLIC  PROPERTY— Continued. 
Destruction  of,  during  war,  1504, 1505. 

failure  to  use  best  efforts  to  prevent;  punishment, 

9S4. 
naval  vessel  or  equipment,  779,  980. 
pimishment,  980. 

summary  court-martial  records,  1009, 1311. 
useless  papers,  1202, 1203, 1248, 1301, 1381. 
valueless,  779. 
Disposition  of;  records  to  be  kept  concerning,  227,  228. 

regulations  governing,  787,  788. 
Embezzlement  of,  1328. 

by  naval  personnel,  990, 1170. 
by  public  officer,  1331. 

property  furnished  for  naval  service,  990, 1325. 
Estimates  and  appropriations  for,  Navy,  1102,  1103. 
Exchange  of  documents  and  books,  1239. 

of  motor  vehicles  in  part  payment  for  new  ones, 

1419. 
of  naval  material  prohibited  if  useful  for  repair  of 

vessels,  etc.,  1190. 
of  naval  vessels  prohibited,  778,  779. 
of  oil  and  gas  products  from  naval  petroleum  re- 
serves, etc.,  1545. 
of  sewing  machines,  band  instruments,  etc.,  1474. 
of  typewriters,  adding  machines,  etc.;  to  be  re- 
ported to  Congress,  1409, 1410. 
of  typewriters  as  part  pasTnent  for  new  ones,  re- 
stricted, 1543,  1554. 
False  accoimts  and  returns,  1170, 1368. 
Flags  captured  from  enemy,  381,  790. 
Flags  issued  free  of  cost;  used  for  draping  coffins,  1397. 
Gifts  of  condemned  ordnance,  etc.,  to  societies  and 
municipaUties,  1249. 
of  flags  used  for  draping  coffins  of  officers  or  enUsted 

men,  1397. 
to  naval  vessels;  acceptance  and  care  of,  1305. 
Government's  right  to  acquire  possession  of  its  prop- 
erty from  State  authorities,  773. 
Guns,  Navy;  loan  or  gift  of,  to  societies  and  municipali- 
ties, 1249. 
Improvements  on  leased  lands,  to  become  property  of 

lessor,  1508. 
Inventions,  1165. 

Inventories  required  to  be  kept  of,  227. 
Lands;  condemnation,  1199, 1490,  1491, 1518. 

condemnation;  title  to  and  jurisdictioii  over,  284, 

2S.5. 
licenses  granted  for  use  by  private  parties,  291. 
not  to  be  purchased  without  a  specific  appropria- 
tion, 1116. 
not  to  be  purchased  without  a  specific  law  author- 
izing, 1117. 
purchase  of;  appropriation  available,  294. 
for  naval  hospitals,  1159, 1160. 
for  United  States;  releases  obtained  by  Presi- 
dent, 1121. 
rented  by  United  States;  erection  of  buildings,  285, 

1508. 
supervision  of  Secretary  of  the  Interior,  395. 
title  to  and  jurisdiction  over,  282. 
transfer  of,  authority  of  executive,  295. 
between  Army  and  Navy,  1528. 
to  jurisdiction  of  Navy  Department,  1457. 
to  PubUc  Health  Service,  1526,  1559. 
Larceny  of,  1328,  1335,  1336. 

arms,  money,  stores,  etc.,   furnished  for  naval 

service,  990,  1325. 
personal  property  of  United  States,  1328. 
Leases  granted  by  Navy  to  lands,  1419. 

of  naval  petroleum  reserves,  etc.,  1532,  1533,  1545. 


PUBLIC  PROPERTY— Continued. 

Loan  of  condemned  ordnance,  etc.,  to  societies  and 
municipalities,  1249. 
of  naval  equipment,  etc.,  to  Red  Cross,  1394,  1395. 

to  miUtary  schools,  1277, 1359. 
of  naval  vessels  for  quarantine  service,  1186. 

and  equipment  to  nautical  schools,  1367,  1368. 
to  nautical  school  in  PhiUppines,  1297. 
of  scientific  instruments,  1201. 
of,  statutory  authority  required,  779. 
of,  to  Navy  Department  by  authority  of  Congress, 
380. 
Loss  of,  charged  to  responsible  officer,  788,  1223. 
Medical  stores;  procurement  of,  466, 1116, 1288. 
Misappropriation  of  arms,  stores,  money,  etc.,  fur- 
nished for  naval  service,  990,  1325. 
of,  by  naval  personnel,  990,  1170. 
Naval  hospitals;  purchase  of  and  sites  for,  1159, 1160. 
material,  old,  may  be  used  in  construction  and 
repair  of  vessels,  etc.,  1190. 
sale  of,  777-779,  1190,  1204. 
sale  or  exchange  forbidden  if  useful  for  repair 
of  vessels,  etc.,  1190. 
suppUes;  accounts  of;  reports  to  Congress;  trans- 
fer between  bureaus,  etc.,  1203. 
piu'chase  and  issue  of,  1216. 
purchase,   preservation    and    disposition   of; 
regulations  governing,  787,  788. 
Naval  supply  account;  is  to  govern  purchase  and  issue 
of  stores,  etc.,  1.366,  1367. 
sales  from;   prices;   how  credited,  etc.,  1557. 
value  of,  to  be  credited  to  naval  supply  account 
fund,  1557. 
Navy  Department,  custody  of,  352. 

general  provisions  relating  to,  352-357. 
Newspapers;  restrictions  on  purchase  of,  1073. 
Ordnance,  Navy;  loan  or  gift  of,  to  societies  and  munic- 
ipalities, 1249. 
Ownership  of,  194. 

of  Government  publications,  1236. 
of  vessels  in  hands  of  builders,  773. 
Patents,  1165. 

Periodicals;  restrictions  on  purchase  of,  1073. 
Pledge;  receiving    as,    from    unauthorized    person; 

punishment.  Navy,  990. 
Possession  of,  is  in  United  States,  194. 
Preserv'ation  of.  Navy;  regulations  governing,  787,  788. 
President's  direction  in  writing  necessary  for  sale  of 

naval  vessel,  1192. 
Proceeds  of  sales,  232,  390,  1095,  1108, 1190,  1202,  1203. 
Purchase  by  one  bureau  or  department  for  another; 
appropriations  transferred,  1409,  1536. 
from   unauthorized   person;  punishment.    Navy, 

990. 
of  hospitals  and  sites  for  Navy,  1159, 1 160. 
of  property  in  excess  of  needs  for  current  year, 

387,  1113. 
of  clothing  from  naval  personnel,  contrary  to  law, 

1324,  1325. 
of  newspapers,  periodicals,  books,  etc.;  restrictions 
on,  1073,  1261. 
Receiving  from  unauthorized  person,  990. 
Records,    destruction    of,    summary    court-martial, 
1009,  1311. 
disposal  of  useless  papers,  1202,  1203,  1248,  1301, 
1381. 
Regulations  governing  loan  or  gift  of  ordnance,  etc., 
1249. 
governing  purchase,  preservation  and  disposition 
of  naval  suppUes,  787,  788. 
sales  of  old  naval  material,  1190. 


1671 


INDEX. 


PUBLIC  PROPERTY— Continued. 

Repairs;  estimates  and  appropriations  for,  Na^'y,  1103. 
of  buildings;  contract  not  to  exceed  appropriation 

for, 1116. 
of  typewriting  macliines  by  General  Supply  Com- 
mittee, 1557. 
old  naval  material  to  be  used  for,  1190. 
.  Report  to  Congress  as  to  sales  of  war  .supplies,  lands, 
buildings,  etc.,  1516. 
by  Bureau  of  Supplies  and  Accounts,  annually, 

1203. 
concerning  exchange  of  typewriters,  adding  ma- 
chines, etc.,  1409,  1410. 
of  property  on  hand  at  navy  yards,  381. 
of  proceeds  of  sales,  and  expenditures  therefrom, 

1296. 
of  sale  of  old  naval  material,  1190. 
of  sales,  to  be  contained  in  book  of  estimates,  1103, 
1104. 
Reserve  material,  Navy;  issue  and  purchase  of  addi- 
tional stoclis,  1473, 14S2. 
Restrictions  on  use  of,  to  influence  legislation,  1527. 
Returns  to  be  rendered   by   storekeeper  at   Naval 

Academy,  1304. 
Robbbery  of  personal  property,  of  United  States,  1328. 
Sales;  advertising  required.  Navy,  1190, 1192, 1204. 
armament,  for  sentimental  reasons,  12S4. 
arms,  stores,  etc.,   furnished   for  naval  service; 

punishment  for  unauthorized,  990,  1325. 
Army  motor  vehicles  to  other  departments  and 

branches,  1531,  1532. 
Army,  Navy  and  Marine  Corps  subsistence  sup- 

pUes,  1465. 
Army    ordnance    stores    to    other    departments; 

price  charged;  payment,  1388. 
Army  ordnance  to  naval  officers,  1312. 
between  Army  and  Navy,  without  comjjensation; 

stores,  real  estate,  etc.,  1528. 
between  bureaus  of  Navy  Department,  1203. 
between  departments  and  bureaus;   transfer  of 

appropriations,  1409,  1536. 
between  departments  and  Government  establish- 
ments, 1526. 
bills    of   exchange;  premium    credited    to    Pay, 

Miscellaneous,  1222. 
charts  at  cost,  1182,  1184. 
computing  machines  to  departments  at  exchange 

prices  by  General  Supply  Committee,  1557. 
condemned  naval  clothing,  1095. 

naval  clothing;  proceeds  available  for  expen- 
diture, 1108. 
naval  suppUes,  stores,  and  materials,  1204. 
docks,  etc.,  under  Shipping  Board,  prohibited 

without  specific  authority,  1555. 
Ephemeris  and  Nautical  Almanac,  1234,  1235, 1278. 
from   naval   suppl}'   account  credited    to  naval 
supply  account  fund,  1557. 
prices  fixed  by  Paymaster  General,  1557. 
from  ships'  stores;  profits,  1359. 
fuel  to  officers,  943,  951. 
garbage  from  general  mess,  899. 
gasoline  fuel  and  oil  to  vessels  of  Volunteer  Patrol 

Squadrons,  1455. 
guns  and  ammunition,  1516. 
Hydrographic  Office  publications,  390,  1236,  1237, 

1543. 
Marine  Corps  stores  to  naval  and  civilian  i)ersonnel, 

1391, 14G4. 
Naval  Home,  property;  proceeds  credited  to  naval 

pension  fund,  1472. 
Naval  material  and  condemned  supplies,  777-779, 
1095,  1108,  1190,  1204. 


PUBLIC  PROPERTY— Continued. 

Sales— Continued. 

Naval  material  prohibited,  if  useful  for  repair  of 
vessels,  etc.,  1190. 
stores  to  naval  personnel,  533,  829, 1313, 1314. 
supplies;  proceeds,  1095. 
supplies  to  Coast  Guard  personnel,  1533. 
supplies  to  Public  Health  Ser\-iee  x)ersonnel, 

1533. 
vessels,  777-779, 1457. 
vessels  and  material;  annual  report,  381. 
vessels;  procedure,  1192. 
vessels;  proceeds  covered  into  Treasury,  1192. 
Navy  and  Marine  Corps  subsistence  stores,  etc., 

to  discharged  persons,  1554. 
oil  and  gas  products,  naval  petroleum  reserves  and 

royalty  oil,  1545. 
old  material,  etc.,  reported  to  Congress,  1360. 
oldnavalmaterialatpubUcauction,etc.,  1190, 1204. 
proceeds,  disposition  of,  390. 
proceeds  of;  garbage,  232. 
proceeds  of  miscellaneous  receipts,  1095. 
proceeds  of,  paid  into  Treasurv;  naval  material, 

1190. 
proceeds  of,  revert  to  original  appropriation,  1108. 
record  to  be  kept  of,  227. 
regulations  governing,  1190. 
report  concerning  proceeds  of,  1296. 
report  to  Congress  by  Secretary  of  the  Navy,  1190, 

in  Book  of  Estimates,  1103, 1104. 
securities;  premium  to  be  accounted  for,  1100. 
ships'  stores,  profits;  not  public  money,  232,  233. 
smooth-bore  cannon  for  experimental  purposes, 

1193. 
stores,  etc.,  to  naval  personnel  and  employees, 

533,  829,  1313,  1314. 
timber  lands,  logs,  etc.;  reuse  of  proceeds,  1518. 
typewriters,  restricted,  1.543, 1554. 

to  departments  at  exchange  prices  by  General 
Supply  Committee,  15.57. 
imiforms,  accouterments  and  equipment  to  Ma- 
rine officers,  1531. 
accouterments  and  equipment  to  naval  offi- 
cers and  midshipmen,  1521. 
at  cost  to  citizens  in  Marine  Corps  training 

camps,  1464. 
prohibited,  1121. 
unlawful:  punishment  for.  Navy,  990. 
useless  papers  at  na\'y  yards  and  stations,  1401. 
in  executive  departments,  1202, 1203. 
in  buildings  under  control  of  departments,  1248. 
on  naval  vessels,  1381. 
vessels  captured  as  prize,  1141, 1142. 
war  suppUes,  buildings,  lands,  etc.,  1516. 
Small  stores  fund  used  for  purchase  of  small  stores  in 

Navy,  1184. 
Stealing,   embezzling,   misappropriating,   unlawfully 

selling,  etc.,  990, 1325. 
Taxation  by  States,  48. 
Tests  of  naval  cannon,  1195. 
Timber;  clearance  of  vessels  laden  with,  1125. 

lands,  1087-1089. 
Trading  in;  punishment  for  disbursing  officers  and 
others,  1332. 
to  contractor  as  part  payment  of  money  due,  778. 
Transfer  of,  355,  356. 

ammunition,  etc.,  by  War  Department  to  other 

departments,  1527. 
approval  of  Congress  required,  194. 
Army  motor  vehicles  to  other  departments,  1531. 
Army  ordnance  stores  to  other  departments;  price 
charged,  etc.,  1388. 


1672 


INDEX. 


PUBLIC  PROPERTY— Continued. 

Transfer  of,  between  navy  yards  requires  legislative 
authority,  779. 
books  and  maps  to  Library  of  Congress  or  District 

of  Columbia  public  library,  1280. 
docks,  etc.,  from  Shipping  Board  to  Navy  De- 
partment, 1555. 
lands,  buildings,  furniture,  etc.,  to  PubUc  Health 

Service,  1526. 
lands  and  buildings  to  Public  Health  Service,  1559. 
lands;  authority  of  executive,  295. 
lands  to  jurisdiction  of  Navy  Department,  1457. 
naval  ordnance  to  War  Department;  payment  for, 

1515. 
naval  records  from  other  departments  to  Navy 

Department,  12S3, 1295, 1389. 
naval  vessels  to  Shipping  Board,  permanently  or 

temporarily,  1467. 
printing  equipment  to  PubUc  Printer,  1531. 
supplies,  real  estate,  etc.,  between  Army  and 

Na%'y,  1528. 
without  charge  between  bureaus  of  Navy  Depart- 
ment, 1203. 
Uniforms,  sale  of  prohibited,  1121. 
Useless  papers;  sale  of,  1202, 1203, 1248, 1381, 1401. 
Vessels,  Navy,  ownership;  in  hands  of  builders,  773. 
Wasting  or  permitting  same;  punishment,  Navy,  985. 
PUBLIC  QUARTERS: 

Definition  of,  698. 
PUBLIC  TRIAL: 

Naval  court-martial,  1030. 
Right  of  accused,  129,  130. 
PUBLIC  VESSELS: 

See  Vessels;  Vessels  of  the  Navy. 

Regulations  as  to  licenses,  etc.,  not  applicable  to,  1135. 
PUBLIC  WORKS: 

Contracts  not  to  overobligate  appropriations,  1116. 

Estimates;  form  of,  1102. 

Improvements  on  leased  lands  to  become  property 

oflessor,  1508. 
Plans  to  accompany  estimates  submitted  to  Congress, 

1102. 
Protection  of  laborers  and  material  men,  1227, 1228. 
PUNISHMENTS: 

See  Arrest;  Articles  for  the  Government  of  the  Navy; 
Commanding  officers;  Courts-martial;  Jeopardy;  Rep- 
rimand; Sentence;  Suspension. 
Bad-conduct  discharge  excludes  benefit  of  war-risk 

compensation,  1500. 
Capital,  excludes  benefits  of  war-risk  compensation, 

1500. 
Coast  Guard  personnel,  operating  as  part  of  Navy,  1455. 
Commanding  officer — 

acting,  may  infUct,  1005. 

may  iniUct  upon  officers  and  crew  of  vessel,  1002. 
of  hospital  or  hospital  ship  may  Inflict,  1441. 
punishments  Inflicted  by,  do  not  bar  trial,  119. 
Confinement  may  be  adjudged  by  deck  courts,  1308. 
Continuing;   remission    of,  by   reviewing  authority, 

courts-martial,  1052,  1053. 
Court-martial  sentence  required  for,  except  as  other- 
wise specified,  1002. 
Cruel  and  unusual,  1063. 
decisions  relating  to,  134. 
due  process  of  law,  125. 
Death,  prohibited  in  the  Navy  unless  specifically 

authorized,  1034. 
Deck  courts,  what  may  be  imposed  by,  1308,  1309. 
Desertion  in  time  of  war;  forfeiture  of  citizenship 
rights,  1078. 


PUNISHMENTS-Continucd . 

Discharge  of  officer  for  moral  imfitnoss  for  promotion,  is 

not,  630. 
Discretionary  with  courts-martial,  979,  981, 983, 984, 990, 

991,  994,  996. 
Dishonoral)lo  discharge  excludes  benefit  of  war-risk 

compensation,  1.500. 
Dismissal;  excludes  benefit  of  war-risk  compensation, 
1500. 
mandatory  in  certain  cases,  994,  1029,  1031,  1064, 
1287. 
Fines;  courts-martial  authorized  to  adjudge,  990. 
imprisonment  until  payment  of,  1063,  1064. 
naval  hospital  fimd  credited  with,  11.59. 
Forfeiture  of  pay ;  deck  courts  may  adjudge,  1308. 
summary  courts-martial  may  adjudge,  1007. 
General  courts-martial  may  inflict  same  as  summary 

courts-martial,  1010. 
Health  of  accused  endangered  by;  different  pimish- 

ment  to  be  substituted,  1009. 
Imprisonment;  beyond  term  of  enlistment,  1064. 

courts-martial  authorized  to  adjudge,  9&3,  984,  990. 
of  midshipmen  for  brutal  or  cruel  hazing,  12S7. 
place  of,  designated  by  reviewing  authority,  court- 
martial  cases,  1064. 
imtil  payment  of  fine,  1063, 1064. 
Infamous,  defined,  118,  134. 
Infliction  of,  on  naval  vessels,  restricted,  1002. 
Irons,  use  of,  abolished,  exceptions,  1309. 
Limitation  of;  Coast  Guard,  1455. 

time  of  peace;  naval  courts-martial,  1062-1064. 
Officers  authorized  to  inflict  without  court-martial, 

1441. 
On  naval  vessels,  power  of  militia  officers,  71. 
Prohibited  in  the  Navy;  flogging,  branding,  etc.,  1034. 
Repeated  offenses,  1003,  1004. 
Reprimand  without  court-martial  is  not,  351. 
Ship's  log;  to  be  entered  in,  1002. 
Statute   of  Hmitations  applicable   to   court-martial 

trials  or  other  pimishments,  1057-1000. 
Summary  courts-martial,  1006,  1007,  1309. 
PURCHASE: 
See  Contracts. 

Discharge  from  Navy  or  Marine  Corps,  1222,  1436. 
Furlough  in  lieu  of  discharge  by,  1436. 
QUARANTINE: 

Expenses,  naval  vessels;  estimates  and  appropriations 

for,  1103. 
Loan  of  naval  vessel  for,  US6. 

Measures  adopted  to  protect  naval  forces  against  dis- 
ease, 1517. 
State  laws,  50. 
QUARRELS: 

Punishment  for,  984. 
Punishment  for  fomenting,  984. 
QUARTERMASTER,  MARINE  CORPS: 

Counted  as  colonel  in  making  computations,  1460. 
Issue  of  clothing,  etc.,  in  lieu  of  lost  or  damaged,  1493. 
Pay  and  allowances,  1460. 
Rank  of,  929,  1460. 
QUARTERMASTER'S  CLERKS: 

Appointment  as  warrant   officers  in   Marine  Corps, 
1462. 
QUARTERMASTER'S   DEPARTMENT,   ARMY: 
Supplies  and  transportation  furnished  by,  to  naval 
and  marine  detachments,  433. 
QUARTERS: 

See  Commutation;  Heat  and  light. 
Allowance;  number  of  rooms,  943. 
Application  for;  commutation  allowed,  702. 


1673 


INDEX. 


QIIAUTERS— Continued. 
Assignment  of,  (i97. 

less  than  authorized  number  of  rooms,  699. 
Care  of;  imauthorized  use  of  (iovernment  laborer,  702. 
Civilian  professor  at  Naval  Academy,  701. 
Contracts  for,  in  excess  of  appropriations,  1116,  1288. 
Kxchange  of;  unauthorized  agreement,  702. 
Ceneral  provisions  relating  to,  C9.5-702. 
C.uest  of  another  officer,  698  699. 
Hire  of,  697,  698. 

in  Washington,  950. 
Marine  band:  second  leader,  952. 
Mates:  same  as  second  lieutenants,  697,  827, 1275. 
Navy:  contracts  permitted  in  excess  of  appropriations, 

1116,  12SS. 
No  public  quarters:  defined,  698. 
Public  quarters,  defined,  698. 

Retired  officer  detailed  to  educational  institution,  440. 
Secretary  of  the  Navy  to  determine  when  public  quar- 
ters not  available,  1514. 
Shore,  personnel  of  training  force,  124S. 
Telephones:  restrictions  on  installation  and  use  of, 

1384. 
Temporarily  absent  from  station,  701. 
Warrant  officers,  commissioned,  1267. 

same  as  second  lieutenants,  697,  827, 1267, 1275. 
RADIO: 

Operation  of  (Jovernment  stations,  1556, 1557. 
Regulation   of  radio   communication;  general  provi- 
sions, 1372-1379. 
Site  for  naval  radio  station  procured  from  other  de- 
partments, 1457. 
RAILROADS: 

Alaskan;  transportation  of  coal;  employment  of  naval 

officers,  etc.,  1393,  1394. 
Land  grant,  1179,  IISO. 
Payment  for  mileage  books,   commutation  tickets, 

etc.,  in  advance  of  travel,  1282. 
Reduced  rates    for   disabled    soldiers,    sailors    and 

marines  traveling  on  furlough,  1554. 
Transportation  of  troops  and  material  during  war,  1 198, 
1465. 
RANK: 

See  Precedence;  Relative  rank. 

Acting  assistant  surgeons,  529,  675,  1261. 

chaplains  in  Navy,  1396. 
Act  of  August  29,  1916,  not  to  reduce,  1435. 
Admiral;  conferred  on  Chief  of  Naval  Operations,  1418. 

conferred  on  officers  of  fleets,  1481. 
Advancement;  examination  of  staff  officers  for,  1473, 
1481, 1482. 
commissions  not  necessary,  102. 
commissions  to  be  issued  to  retired  officers,  1368. 
in  numbers  for  conduct  in  battle  or  extraordinary 

heroism,  453,  454,  734-736,  921,  933. 
in  rank,  without  change  of  grade,  652,  682. 

Senate's  consent  required,  734. 
of  fleet  officers  to  admiral  and  \'ice  admiral,  1481. 
of  retired  officers;  commissions  furnished,  1368. 
of  retired  officers;  jurisdiction  of  accounting  offi- 
cers, 238. 
of  staff  officers,  1426,  1513. 
of  staff  officers;  examinations,  1473, 1481, 1482. 
to  "flag  officer,"  576,  660. 
Aid  or  executive  of  commanding  officer,  669. 
Antedating  on  promotion,  649-651,  734,  931,  1390,  1459. 
after  suspension,  731-733. 
commencement  of  pay,  830-8:38,  1178,  1390. 
Antedating;  retirement  of  officer  ^vith  rank  of  higher 

grade,  912. 
Army  and  Marine  Corps  officers,  930,  931. 


RANK— Continued. 

Army  officers  by  relation  to  the  Navy,  662. 
Assimilated;  warrant  officers,  704. 
Assistant  civil  engineers,  1474. 
naval  constructors,  1266. 
surgeons,  1273,  1426. 
Brigadier  generals  and  rear  admirals  of  lower  half, 

665-667,1501. 
Chaplains,  679,  680,  1268, 1396. 
Chief  machinists,  1314. 
Chief  of  Naval  Operations,  1418. 
Chiefs  of  bureaus,  367,  368,  369,  670-672,  1512. 
retired,  372-376. 
subsequently  retired,  376,  1303. 
Chief  warrant  officers,  1267,  1314. 
Civil  engineer  corps,  oflicers  of,  678. 
rear  admiral  authorized  for,  678. 
Coast  and  Geodetic  Survey,  members  ser\^g  with 

Na\'y,  1480. 
Coast  Guard  officers,  705. 
Commissioned  warrant  officers,  1267, 1314. 
Commodore  changed  to  rear  admiral,  672. 
Commodore;  retired  staff  officers,  685. 
Congress  may  change  officer's  rank,  92,  910,  911. 
Construction  corps,  505,  677,  678. 
Court-martial  members,  1031. 

not  to  be  junior  to  accused,  except,  1015,  1017. 
Dental  officers,  Na\-y,  1421. 
Flag  officer:  commander  of  squadron,  576, 660. 
Former  bureau  chief  subsequently  retired,  376, 1303. 
General  provisions  relating  to,  662-706. 
Grade  distinguished;  deflnitions,  378,  499,  577,  635-638, 

682,  686. 
Grade  synonjTnous;  definitions,  379,  466,  678,  680,  907. 
Grade,  title,  and  office  distinguished;  definitions,  449, 

450,  683,  837,  910. 
Graduates  of  Naval  Academy,  687,  765. 
Judge  Advocate  General,  968,  1186, 1187, 1512. 

retired,  372-376,  673,  968. 
Machinists,  with  other  warrant  officers,  1269. 
Marine  Corps  and  Army  officers,  930,  931. 
Marine  Corps;  commandant  of,  928,  929,  1392, 1512. 
officers  reinstated  or  given  probationary  appoint- 
ments, 1461, 1462. 
staff  officers,  929, 1460. 
Medical  corps,  officers  of,  673-676. 
Midshipmen,  after  graduation,  687,  765. 
Naval  constructors,  1266. 
Office  distinguished;  deflnitions,  837,  910. 
Passed  assistant  surgeons,  675,  676. 
Pay  from  date  of;  graduates  of  Naval  Academy  com- 
missioned in  Navy  and  Marine  Corps,  1221,  1222. 
of  officer  advanced  for  heroism,  734. 
on  promotion,  830-838;  1178;  1390. 
Pharmacists  and  chief  pharmacists,  1420. 
Precedence  according  to;    line  and  staff  officers  in 
processions,  etc.,  704. 
of  court-martial  members  according  to,  704, 1016. 
Professor  at  Naval  Academy;  officer  detailed  as,  667. 
Professors  of  mathematics,  680. 
Provisional,  Naval  Reserve  Force,  1444. 
Rear  admiral;  rank  temporarily  assigned,  665. 

rank  with  major  generals,  662,  665. 
Regulations  governing,  may  be  changed  by  Secretary 

oftheNa\T,  466. 
Relative  rank  changed  to  actual  rank,  1265. 
Retired  officers,  631. 

active  duty  during  war  or  emergency,  1512, 1513. 
chiefs  of  bureaus;  age  or  length  of  service,  672,  673. 
civil  war  service,  1266, 1293,  1312. 
considered  as  having  been  retired  with  higher 
rank,  912. 


1674 


mDEX. 


RANK— Con  tinu  ed . 

Ketired  officers,  dental  corps,  1422. 

Judge  Advocate  General,  Navy,  372-376,  673,  968. 

Marine  Corps,  964. 

Medical  Corps;  next  higher  grade,  675. 

retired  for  purpose  of  creating  vacancies,  1265. 

same  as  when  retired,  1189.  Morinp 

who  tail  physically  for  promotion  in  the  Marine 

Corps,  965.  vr<,-.rv 

who  tail  physicaUy  for  promotion  in  the  Na%Tr, 

1366,1433.  ,        .,       , 

Retired  staff  officers;    retired  tor  age  or  length  of 
service,  685.  .  „  ks? 

retired  tor  causes  incident  to  the  service,  687. 
Secretaries  to  admiral  and  \ice  adnural,  455. 
Selection,  officers  promoted  by,  1433. 
Senate  must  consent  to  changes  in,  734. 
Special  act  restoring  to  officer,  733.  _ 

Staff  officers,  according  to  date  of  commission,  1429. 

advancement,  680-685. 

advancement  above  lieutenant  commander,  1513. 

below  commander,  1426. 

examinations,  1473, 1481, 1482. 
command  not  to  be  exercised  because  of,  702, 1265. 
distribution  in,  1427. 
general  provisions  relating  to,  673-685. 
Marine  Corps,  929, 1460. 

not  entitled  to  additional  quarters  by  virtue  of,  695. 
not  to  confer  miUtary  command,  1265. 
rear  admiral  not  a  grade,  682. 
Superintendent  of  Naval  Observatory,  1276, 1277. 

Supply  corps,  officers  of,  676,  677. 

rear  admiral  autliorized  for,  676,  677.  _ 

Suspension  from,  continuing  punishment;   reimsslon 

of,  1052. 
Titles  of  staff  officers  not  changed  by,  1265. 
Vice  admiral;  officers  of  fleets  to  have,  1481. 
Warrant  officers;  assimilated,  704. 
machinists,  1269. 
Marine  Corps,  1462. 
on  promotion,  1267. 
RANK  AND  PRECEDENCE: 

General  provisions  relating  to,  662-706. 

RAPE: 

Assault  with  intent  to  commit,  1349. 

Carnal  knowledge  of  female  under  sixteen,  1349. 

Punishment  tor,  1349. 

RATINGS: 

Advanced  or  reduced;  pay  of,  868,  869. 
Completelists  of  men  to  be  furnished  Secretary  of  the 

Navy,  995. 
Established  in  hospital  corps,  1419, 1420. 

in  Navy,  534, 1423, 1494,  1495, 1552. 
Naval  Flying  Corps,  1440, 1441. 
Naval  Reserve  Force,  1443, 1444. 
Naval  vessels,  774. 

Reduction  in,  by  commanding  officer,  1002. 
by  summary  court-martial,  1006. 
by  summary  court-martial,  f or  incompetency.lOOT^ 
secretary  of  the  Navy  may  estabUsh  m  Navy  and 
Str::t:?^?accompany  on  transfer  toother 

vessels,  995. 
RATIONS: 

See  Commutation;  Subsistence. 

Additional,  special  cases,  901. 

Army,  funli^^d  naval  and  marine  detachments  co 

operating  with,  433. 
Commutation  of;  public  money,  232. 

paid  to  messes,  1279. 

value  of,  901,  902.  ,,-„„„,  sq« 

Court-martial  prisoners;  commutation  of  ,898. 


RATIONS-Continued. 

Discharged  enUsted  men,  pending  reenlistment,  120L 

1202. 
Enlisted  man,  895-898, 1194. 
Extra  allowance  for  night  watches,  899,  900. 
General  provisions  relating  to,  893-902. 
Hospitals;  allowed  rations  for  patients,  1160. 

officers  and  men  temporarily  in,  898. 
Issue  of  fruits  with  fresh  meat,  9(X). 
Judge  Advocate  General  not  allowed,  897. 
Marine  Corps,  enlisted  men,  953,  954, 1531. 
officers  not  entitled  to,  954. 

Midshipmen,  893, 1194. 

Navy;  constituents  of,  898,  899. 

Nurse  Corps,  female,  807,  808. 

Officers  attached  to  seagoing  vessel ,  893-895. 

Property  accounts;  jurisdiction  of  accounting  officers, 

234. 
Refuse  of,  is  Government  property,  899. 
Regulations  governing,  prescribed  by  Secretary  of  the 

Navy,  1194. 
Retired  officers,  916. 
Short  allowance,  901. 
Stopped  for  the  sick;  accounting  for,  901. 
Substitutions  in,  899-901. 
REAPPOINTMENT: 

See  Appointments;  Reinstatement;  Restoration. 

REAR  ADMIRALS: 

Additional  numbers  in  grade,  736.  .„  v,„m 

Advancement  from  lower  to  upper  half  of  grade  held 
to  bo  a  promotion,  736. 

to  rank  of  admiral  or  vice  admhal,  1481. 
Aids  to;  pay,  815-817, 1303. 

regulations  governing;  ^'^l^^ty  of  785. 
Brigadier  generals  rank  with  lower  half,  665-667  loOl. 
Captains  considered  as  having  been  retired  with  rank 

of  912. 
CiWl  engineers;  rank  authorized  for,  678. 
Commodore  changed  to,  375,  672,  686. 
Construction  Corps;  rank  authorized  for,  677. 
Detail  to  selection  boards,  1430. 
Distribution  between  upper  and  lower  half,  line  and 

stafl,  1428. 
Flag  officer  construed  to  mean,  577. 
Number  in  stafl  corps,  1427, 1428. 
Pay,  791,  797. 

first  and  second  nine,  1264, 1301. 

upper  and  lower  half,  line  and  stafl,  1429. 
Promotion  by  selection  to,  1430,  1513. 

by  selection  to;  staff  corps,  1513. 

from  lower  to  upper  half,  730. 

to,  in  time  of  peace,  451,  455,  721,  722. 

to,  in  time  of  war,  454. 
Proportion  of  in  line,  1425. 

Rank  of  lower  half,  with  relation  to  brigadier  generals, 
665-667,  1501. 

temporarily  assigned,  status  of,  66o. 

with  major  generals,  G62. 

whether  upper  or  lower  half ,  665. 

Selection  of  officers  to  command  squadrons,  with  rank 

of  flag  officer,  576,  660. 
Staff  officers  permanently  commissioned  with  rank  of, 
additional  numbers,  1429. 
rank  of  not  a  grade,  682. 
Supply  Corps;  ^ank  authorized  in,  67MV7. 
Two  grades  for  pay  purposes,  447, 664r*b5. 

REBEL: 

See  Enemy;  Insurrection;  liar. 
Intercourse  with,  punishment  for.  979. 
REBELLION: 

Enlisting  to  serve  against  Umted  States,  1318. 
Inciting  insurrection,  etc.,  1317. 


54641^^—22 106 


1675 


INDEX. 


RECEIPTS: 

Disbursing  officers  taking,  for  larger  sum  than  paid, 

1329,  1331. 
False;  punishment  for  gi\'tng  or  receiving,  990,  1324. 
Forgcrj'  of,  1322,  1323. 
RECEIVERS: 

Appointment  for  contractor  building  naval  vessel,  773. 
RECEIVING  SHIPS: 

Home  on,  for  men  honorably  discharged,  1201-1202. 
Sea  pay  for  duty  on,  879. 
Status  of;  not  seagoing  vessels,  897. 
RECEIVING  STOLEN  GOODS: 

Buying,  etc.,  property  of  United  States  illegally  sold, 

etc.,  990. 
Punishment  for,  1328, 1350,  1351. 
RECESS  APPOINTMENTS: 
Acceptance  of,  461,  462. 
Accounting  officers  notified  of,  1072. 
Decisions  relating  to,  99,  100. 
No  salary  until  confirmation  if  vacancy  existed  while 

Senate  in  session,  1066. 
Officers  advanced  for  heroism,  735. 
Rear  admirals  holding,  are  qualified  for  membership 

on  selection  boards,  1431. 
Retirement  of  officers  holding,  640,  651. 
Revocation  of,  100. 

Status  of  officers  if  not  confirmed,  651. 
Tempoary  adjournment  of  Senate,  33,  217. 

appointments  to  fill  vacancies  occurring  in  depart- 
ments, 216,  217. 
RECOG^^ZANCE: 

Witnesses  required  to  give,  425, 426. 
RECORDER: 

Deck  court;  who  may  serve  as,  1308. 
Oaths  to  witnesses  administered  by,  217. 
Summary  courts-martial,  1006. 
RECORDS: 

Accoimting  officers  refused  information  from,  238,  239. 

Alteration  of,  357. 

Alteration  of;  veto  of  bill  requiring,  35. 

Bonds;  officer  not  entitled  to  old  bond  on  giving  new 

one,  495. 
Contracts;  bidstoberecordedat  time  of  opening,  1110. 
copies  to  be  filed  in  Returns  Office,  397. 
proposals  to  be  recorded  and  reported  annually 

to  Congress,  1113. 
to  be  filed  in  offices  of  accounting  officers,  1118. 
Copies  of  for  use  in  court,  424,  426,  427,  1009,  1010,  1023. 
Court  of  Claims  may  call  on  departments  for,  1364, 1365. 
Court    of  inquiry    proceedings;    admissible    before 
courts-martial,  1056, 1057. 
how  authenticated,  1056,  1057. 
judge  advocate  to  keep,  1056. 
Courts-martial;    conclusive;  can    not    be    collaterally 
attacked,  1036. 
evidence  before  examining  boards,  718,  719. 
judge  advocate  to  keep,  1019. 
signed  by  members  and  judge  advocate,  1034. 
Deck  courts,  1309. 
Departmental;  custody  of  193, 194. 

quasi  confidential,  194. 
Diseases;  treatment  and  character  of,  466. 
Evidence  in  trials  for  embezzlement,  1330, 1331. 
Examining  Vjoards,  promotion,  724. 
Falsification  of,  1336, 1368. 
Forging,  1322. 
Larceny  of,  1328. 
Naval;  transfer  to  the  Navy  Department,  1283,  1295, 

1389. 
Navy  Department,  custody  of,  352, 361. 


RECORDS-Continued. 

Navy  Department,  examining  boards  to  consider  in 
promotion  cases,  722,  723. 
general  provisions  relating  to,  354-356. 
submitted  to  President  in  promotion  cases,  724. 
Production  of,  before  commission  to  take  testimony, 
423. 
in  court,  194. 
Public  property;  heads  of  departments  required  to 

keep,  227. 
Removal  of;  custodian  should  use  force  to  prevent,  194. 

papers  from,  357. 
Retiring  board;  action  on  by  the  President,  616. 
Selection  boards  furnished  with,  1431. 
Students  and  others  afforded  facilities  for  study  and 

research,  1275. 
Summary  courts-martial;  filing  and  destruction  of, 
1009,  1311. 
recorder  to  keep,  1006. 
Treasury  Department;  transcripts  for  use  in  court,  427. 
Unauthorized  removal  and  use  of,  1326. 
Useless  papers  at  navy  yards  and  stations,  1401. 
in  buildings  under  control  of  departments,  1248. 
in  executive  departments,  1202,  1203. 
on  naval  vessels,  1381. 
RECRUITING: 

See  Enlisted  men;  Enlistments:  Fraudulent  enlistmeni. 
Advertising,  1382,  1515. 

Appropriation,  "Transportation,  recruiting,  and  con- 
tingent:" expenses  chargeable  to,  1274,  1275. 
Estimates  and  appropriations  for  expenses  of.  Navy, 

1103. 
Minors;  restrictions  governing  enlistment,  1402,  1403. 
Oaths  administered  by  recruiting  officers,  1240. 
Obstructing,  during  war,  1484. 
Penalty  for  enlistment  of  prohibited  classes,  994. 
Postmasters  making  enlistments,  1419. 
Premiums,  Navy;  estimates  and  appropriations  for, 
1103. 
RED   CROSS: 

Detail  of  Navy  medical  officers  to,  1436, 1437. 
Loan  of  naval  equipment,  etc.,  to,  1394, 1395. 
Use  of,  in  time  of  war,  1369. 
REDUCTION: 

Of  army;  decisions  relating  to,  98-99. 
Officers;  to  a  lower  office,  988. 
to  enlisted  rating,  524,  988. 

confirmation  of  sentence,  1045. 
Pay  of  office;  executive  can  not  reduce  statutory  com- 
pensation, 208. 
Rating  of  enlisted  men;  by  commanding  officer,  1002. 
by  summary  court-martial  sentence,  1006,  1007. 
pay,  868,  869. 
Warrant  officer  to  enlisted  man;  court-martial  sen- 
tence, 524. 
REENLISTMENT : 

Construed;  held  to  be  enlistment,  935. 
Pay;  Marine  Corps,  883-891,  947. 
REFUSE: 

Garbage  from  general  mess  public  property,  899. 
REGATTAS: 

Regulations;  enforcement  of  by  head  of  any  depart- 
ment, 1300,  1301. 
REGI3IENTS: 

Marine  Corps,  936. 

commanding  officer  may  convene  summary  courts- 
martial,  1441. 
REGISTER: 

See  Kavy  Register. 

Biennial,  public  officers  and  employees;  data  required 
for,  228,  1235,  1236. 


1676 


INDEX. 


REGISTER— Continued. 

Naval  vessels  stricken  from;  annual  report  to  Congress, 
1190. 
sale  of,  1192. 
status  of,  779. 
Navy;  advancement  for  war  service  designated  in 
1275, 1276. 
number  ofextra  copies  to  be  printed,  1235. 
Official  Register  of  the  United  States  to  contain  names, 
etc.,  of  naval  officers,  1235, 123G. 
data  to  be  furnished  for,  22S,  1235, 1236. 
printing  and  distribution  of,  1235, 1236. 
REGISTER  OF  WILLS: 

District  of  Columbia:  guardianship  papers  prepared  by, 
without  charge,  1217. 
REGULAR  DEALERS: 

Bids  submitted  by  persons  who  are  not,  1114. 
REGULATIONS: 
See  Rules  of  the  road. 
Absence  from  duty  caused  by  misconduct;  procedure, 

1436. 
Accounting  officers  bound  by,  Army,  241. 
bound  by,  Navy,  198,  273,  786,  787. 
refusing  to  follow,  838,  839. 
Acting  appointments  of  machinists  made  permanent 

according  to,  1269. 
Administration  of  law  and  justice  in  the  Navy;  validity 

of,  785,  786. 
Advances  of  pay;  vaUdity  of,  838,  839. 
Army;  Marine  Corps  subject  to,  956,  961. 
Attorney  General's  opinion  as  to  interpretation  or 

validity  of,  298,  299. 
Aviation  schools;  Coast  Guard  personnel  subject  to, 

1456. 
Board  of  inquiry  at  Naval  Academy  governed  by, 

12.86. 
Bonds,  liability  can  not  be  changed  by,  211. 
Business  of  Navy  Department;  reorganization  of,  360. 
Cash  rewards  to  civilians  for  suggested  improvements, 

1514. 
Coast  and  Geodetic  Survey;  prescribed  by  Secretaries 
of  Navy,  War  and  Commerce,  1480. 
subject  to  Navy,  1479, 1480. 
Command  of  vessels  and  squadrons;  President  to  for- 
mulate, 1277. 
Congress  to  make,  for  naval  forces,  58. 
Contracts  construed  in  connection  with,  787. 
Court-martial  proceedings;  validity  of,  785, 786. 
1        service  of  commissioned  officers  of  Coast  Guard, 
etc.,  as  members  of,  1494. 
Customs  equivalent  to,  196,  885. 
Death  gratuity;  designation  of  person  to  whom  pay- 
able, 1.546,  1547. 
Deceased  personnel,  Navy;  disposition  of  efiects,  786, 

1503. 
Decisions  relating  to,  194-201,  260,  261, 784-787. 
Deck  courts;  President  to  issue,  1309. 
Definition  of,  195. 
Delegation  by  Congress  of  power  to  make,  59,  195,  784, 

787. 
Departmental,  authority  to  make,  193. 
Disbursing  officers:  duties  of,  786. 

responsibility  for  disbursements,  267. 
Discharge  prior  to  expiration  of  enUstment;  Secretary  of 

Navy  to  prescribe,  1381, 1382. 
Discharged  enlisted  men  subject  to,  pending  reenUst- 

ment,  1201, 1202. 
Duties  of  Supply  corps;  authority  to  make,  468. 
Enlisted  men;  qualifications  for  specified  ratings,  1495. 

subject  to  until  discharged,  555,  556. 
Executive  power  to  establish,  82. 
Footnote;  effect  of  as  regulation,  1064. 


REGULATIOXS-Continued. 

Hazing,  rules  to  prevent  at  Naval  Academy,  1281. 
Heads  of  departments,  concerning  research  by  stu- 
dents and  others,  1275. 
Inconsistent  with  law;  discharge  of  enlisted  men,  524, 

784. 
Lighthouse  Service;  prescribed  by  Secretaries  of  War, 
Navy  and  Commerce,  jointly,  1457. 
subject  to  Navy,  during  war  or  emergency,  1456. 
Limitations  upon  power  to  make,  198,  784. 
Loan  of  naval  equipment,  etc.,  to  Red  Cross,  1394, 1395. 
Loan  or  gift  of  ordnance,  etc.,  to  societies  and  munici- 
palities, 1249. 
Mail  clerks.  Navy,  governed  by  postal  laws  and  regula- 
tions, 1306. 
Manual  for  government  of  naval  prisons,  786. 
Marine  Corps;  President  to  prescribe,  956. 
Marine  parades  and  regattas;  enforcement  of  by  heads 

of  departments,  1300,  1301. 
Medals  of  honor,  distinguished-service  medals  and 

Navy  crosses,  1522,  1523. 
Must  be  consistent  with  law,  524,  784. 
Naval  Academy,  738,  739. 

issue  of  clothing  to  midshipmen,  770. 
statutes  interpreted  in  connection  with,  787. 
violations  of  to  be  promptly  reported,  1287. 
Naval  Home;  disposition  of  effects,  deceased  inmates, 
1395. 
disposition  of  pensions  due  beneficiaries,  1395. 
Secretary  of  the  Navy  to  prescribe,  1160. 
Naval  Observatory:   board  of  visitors  to  prepare  for 

Secretary  of  the  Navy,  1276. 
Naval  Reserve  Force;  1443-1447, 1449,  1453. 
promotions,  1510. 

subject  to  Navy,  1446, 1447, 1451,  1511. 
Navigation,  etc..  Pearl  Harbor;  Secretary  of  Navy  to 

prescribe,  1382. 
Navy,  authority  to  issue,  784. 

approval  of  President;  whether  personal  action 

required,  787. 
changes  in,  784. 

copy  to  be  furnished  officers,  787. 
Marine  Corps  subject  to,  956,  961.   . 
retired  officers  subject  to,  631. 
Pay  clerks,  Navy;  appointment,  duties,  etc.,  1406, 1407. 
Practice  equivalent  to,  885. 
Precedence;  graduates  of  Naval  Academy;  validity  of, 

689. 
President  can  not  usurp  powers  of  Congress,  781. 
Private  property;  claims  for  loss  or  damages  in  naval 

service,  1493. 
Proliibition  of  liquors  near  military  camps  and  to 

members  of  the  service,  1477, 1478. 
Promotion  of  warrant  officers,  1267. 
Property  returns;  by  storekeeper  at  Naval  Academy, 
1304. 
charges  against  officers  losing  public  property,  1223. 
Purchase  of  copyrights  and  plates  for  Hydrographic 
Office,  12:56. 
discharge;  President  to  prescribe,  1222. 
Rank  and  precedence;   Secretary  of  the  Navy  may 
change,  466. 
enlisted  men  and  midshipmen.  Navy,  1194. 
Rations  of  enlisted  men,  Marine  Corps,  1531. 
Sale  of  old  material;  Secretary  of  the  Navy  may  pre- 
scribe, 1190. 
of  subsistence  stores,  etc.,  1313, 1314,  i;i91, 1464. 
of  uniforms,  etc.,  to  marine  officers  at  cost,  1531. 
Secretary  of  the  Navy  not  boimd  by,  352. 
Ships'  stores  profits,  expenditures  from,  1359. 
Statutes  interpreted  in  connection  with,  787. 
Summary  court-martial  proceedings,  1009, 1311. 


1677 


INDEX. 


REGULATIONS— Continued. 

Supplies;  use,  preservation  and  disposition  of,  787, 788. 
Treasury,  259. 

to  be  observed  respecting  public  moneys,  1098. 
Usages  equivalent  to,  196,  885. 
Validity  of;  accounting  officers'  decision  not  binding, 

239. 
Validity  of;  advances  in  pay  to  naval  personnel,  838, 839. 

rule  for  testing,  199. 
Violating  or  refusing  obedience  to,  punishment.  Navy, 

985. 
Waiver  of,  200. 

Weight  of;  force  of  law,  197,  784. 
REIMBURSEMENT: 

See  Claims;  Damages;  Effects;  Privaie  property. 
Commutation  is  form  of,  702. 
REINSTATEMENT: 

Civil  employees;  honorably  discharged  from  military 
service,  1524. 
members  of  National  Ouard  and  Medical  Reserve 

Corps,  1464. 
members  of  Officers'  Reserve  Corps,  1476. 
service  credited  for  retirement,  1541. 
transferred  to  Census  Office,  1526. 
who  served  in  Army  or  Na\'y  during  war  with 
Germany,  1530. 
Dismissed  officers,  94,  582,  1503. 
Former  officers,  honorably  discharged  from  the  Navy, 

1393. 
Marine  officers,  as  second  lieutenants,  1461. 
Midshipmen,  747,  749,  761,  762. 

Naval  officers  dropped  from  roljs  for  unauthorized 
absence,  etc.,  1503. 
RELATIVE  RANK: 
See  Precedence;  Rank. 

Abolished  in  the  Navy;  changed  to  actual  rank,  1265. 
Army  and  Navy  officers,  active  and  retired,  662. 
Brigadier  generals  and  rear  admirals  of  lower  half, 

665-667, 1501. 
Command  not  to  be  exercised  by  staff  officers  because 

of,  702. 
Defined,  674. 
Naval  officer  detailed  as  professor  at  Naval  Academy 

and  officers  of  Army,  667. 
Nurse  Corps,  female.  Army,  808. 
Officers  of  Marine  Corps  and  officers  of  the  Navy,  667. 
RELEASES: 

President  authorized  to  obtain  where  lands  purchased 
for  United  States,  1121. 
RELIGION: 

Form  of  worship;  chaplains,  502. 
REMISSION: 

Sentences  imposed  on  Coast  Guard  personnel,  1455. 
Sentences  of  courts-martial,  85. 

courts-martial,  by  Secretary  of  the  Navy,  1309. 
deck  courts,  1308. 
general  courts-martial,  1051-1055. 
summary  courts-martial,  1009. 
suspension,  669. 
REMOVAL  OF  OFFICERS: 

See  Dismissal;  Discharge;  Dropped;  WhoUy  retired. 
RENTED  BUILDINGS: 

District  of  Columbia;  others  may  be  rented  instead  of 
ones  occupied,  1187. 
reports  concerning,  1218, 1391, 1543. 
specific  appropriation  required,  1181, 1182. 
Estimates  and  appropriations  for,  Navy,  1103. 
Reports  to  Congress  in  annual  estimates,  1191. 
RENTED  LANDS: 

Public  buildings  erected  on,  285, 1508. 


REOPENING  OF  ACCOUNTS: 

See  Accounts. 
REPAIRS: 

See  Public  property;  Vessels  of  the  Navy. 
Estimates  and  appropriations  for.  Navy,  1103. 
Naval  vessels,  776,  777. 

Public  buildings  and  improvements;  contract  not  to 
exceed  appropriation,  1116. 
REPAIRS  AND  PRESERVATION: 

Appropriation  for:  use  at  naval  training  stations,  1530. 
REPE.\L: 

See  Statutes. 

Acts  embraced  in  Revised  Statutes,  1173. 

Effect  of,  on  former  statute,  187. 

on  penalties,  pending  prosecutions,  etc.,  187. 
REPE.\TED  TRAVEL: 

Actual  expenses  allowed  for,  842,  843, 1272-1274, 1278. 
REPLEVIN: 

Public  property  can  not  be  obtained  by  private  par- 
ties, 194. 
REPORTS: 

See  A  ppropriations;  Contracts;  Estimates;  Printing  and 

binding;  Public  property. 
Accounts;  delinquency  of  officers  required  to  render, 

1226. 
Annual;  extracts  from,  included  in  book  of  estimates, 
1179. 
fiscal  year  defined,  257. 

time  for  submitting  copy  to  printer,  227, 1416, 1417. 
Armor  plants;  cost  of  products,  1419. 
Automobiles:   quarterly,   to    Bureau   of  Yards  and 

Docks,  1546. 
Board  of  Visitors,  Naval  Observatory,  to  submit,  1276. 
Buildings  owned  in  District  of  Columbia:  statement 
concerning,  1553. 
rented,  included  in  estimates,  1191. 

in  District  of  Columbia,  1218, 1391,  1543. 
Bureau  of  Supplies  and  Accounts,  to  Congress:  money 
value  of  supplies  on  hand,  etc.,  1203. 
to  Secretary  of  the  isavj;  receipts  and  expendi- 
tures, 1304. 
Chaplains  required  to  make,  annually,  503. 
Checks  outstanding,  1417. 
Chief  clerks  to  submit  monthly,  209. 

Civil  establishment;  employed  under  Increase  of 
the  Navy  and  other  general  appropriations,  381, 
1194,  1272, 1312,  1313,  1418,  1419. 
in  departments,  227. 
inefficient  employees,  1204. 

number  and  compensation  of  professors  and  in- 
structors at  Naval  Academy,  1457. 
Claims  allowed;  Secretary  of  the  Treasury  to  Congress, 

1193. 
Claims  for  damages  caused  by  naval  aircraft,  1545. 
caused  by  naval  personnel,  1527. 
caused  by  naval  vessels,  1358,  1359. 
Commanding  officers  to  submit  to  Secretary  of  the 

Navy,  573,  901,  995. 
Condition    of    business    in    department;  submitted 
monthly  to  head  of  department,  1211. 
submitted  quarterly  to  President,  1221. 
Contingent  funds;  expenditiu-es  from,  226. 
Cost  of  work,  naval  appropriations;  direct  and  indirect 

charges,  1365,  13f>6. 
Departmental    publications;  cost    and    distribution, 

etc.,  1556. 
Disbursing  officers;  annual  statement  of  checks  out- 
standing, 279. 
Estimate  of  cost  to  print  usual  number  must  accom- 
pany, 1230. 


1678 


INDEX. 


REPORTS— Continued . 

Exchange  of  typewriters,  adding  macliines,  etc.,  in 

part  payment  for  new  ones,  1409,  1410. 
Expenditures;  to  be  submitted  annually  to  Congress, 
226, 1183. 
to  Secretary  of  Treasury,  261,  265,  266. 
Failure  to  make  at  time  required  by  law  or  regulaton, 

punishment,  1331. 
Fake  and  fraudulent,  902,  1170, 136S. 
General  provisions  relating  to,  3S1-385. 
Indebtedness  of  disbursing  officers,  1226. 
Not  to  be  distributed  with  compliments  of  officer,  1236. 
Printing  of,  from  bureau  chiefs;  head  of  department 
to  direct,  1238. 
number  of  copies  limited,  1238. 
time  for  furnishing  copy  to  Public  Printer,  227, 
1416, 1417. 
Proposals  for  contracts;  submitted  annually  to  Con- 
gress, 1113. 
Publications  received  and  distributed,  1239. 
Public  Printer  to  Congress,  work  done  for  departments, 

1231. 
Quarterly;  publication  of  Navj'  receipts  and  expendi- 
tures, 262. 
Rations,  short  allowance  of;  commanding  oflBcers  to 

report  to  Navy  Department,  901. 
Relief  granted  by  Secretary  of  the  Navy  to  disbursing 

officers  for  loss  of  funds,  1527, 1528. 
Repairs  and  changes  in  naval  vessels,  proposed,  1299. 
Repairs  to  naval  vessels,  1314. 
Retirement  of  civil  employees;  information  concerning 

records  of,  1.542, 1543. 
Sales  of  old  material,  and  other  public  property,  1190, 
1360. 
public  property;  proceeds  of,  and  other  miscel- 
laneous receipts,  1296. 
vessels;  statement  submitted  to  Congress,  777. 
war  supplies,  lands,  buildings,  etc.,  1516. 
Secretary  of  the  Navy  required  to  make  upon  certain 

subjects,  381. 
Supreme  Court;  distribution  of,  1365. 
Travel  by  employees  to  points  outside  the  District  of 

Columbia,  1305. 
Useless  papers  accumulated  in  files;  disposal  of,  1202, 

1203. 
Vessels  imfit  for  repairs  or  not  to  be  completed,  1190. 
REPRESENTATIVES : 

See  Death;  Members  of  Congress. 
Legal;  effects  of  deceased  persons  on  vessels  to  be  se- 
cured for,  995. 
REPRIMAND: 

Comanding  officer  may  inflict  as  punishment,  1002. 
Commanding  oflBcer  not  to  enter  in  ship's  log,  1002. 
Plea  of  former  piuiishment,  119. 

Secretary  of  the  Navy  may  reprimand  subordinates, 
119,  351,  352,  10O4. 
REPROACHFUL  WORDS: 

Punishment  for  using  in  Navy,  984. 
REQUISITIONS: 

SeePrinting  and  binding. 

Medical  stores  for  fleets  and  squadrons,  466. 

Money,  advances  of,  1225,  1226. 

drawn  on  Secretary  of  the  Treasury,  1104. 
Naval  supplies;  made  by  bureaus  upon  Paymaster 
General,  1203. 
RESEARCH: 

Departmental  facilities  open  to  students  and  others, 
1275. 
RESERVATIONS: 

Naval;  Indianhead;  jurisdiction  of  United  States,  294. 
Naval;  jurisdiction  over,  292-294. 


RESERVATIONS— Continued. 

Public  land  laws  not  applicable  to  military,  etc.,  1087. 
United  States;  jurisdiction  over,  289-292. 
Maryland;  jurisdiction,  293,  294. 
status  of  residents,  290. 
RESERVE: 

List  of  persons  eligible  for  conmiissions  in,  1392. 
RESERVE  CORPS: 

Army  officers;  leave  of  absence  to  civil  employees, 
members  of;  reinstatement,  1476. 
RESERVE  FORCE: 

See  Naval  Reserve  Force. 
RESERVE  MATERIAL: 

Appropriation  for.  Navy,  reimbursed  for  stock  issued, 
1473,  1482. 
RESERVE  NURSES: 

Nurse  Corps,  female.  Navy;  number,  active  duty, 
compensation,  1303,  1304. 
RESERVE  SUPPLIES: 

Appropriations  not  available  for  accumulation  of,  387. 
RESIDENCE: 

Candidates  for  appointment  as  midshipmeii,  7.50,  751. 

Home  not  synonymous;  definitions,  876. 

Naval  officers;  medical  attendance  dependent  upon, 

904. 
Retired  officers,  643. 
foreign  country,  572. 
RESIGNATION: 

Acceptance  of,  in  true  names,  1379, 1380. 

necessary  before  quitting  duties,  naval  officers,  989. 
Additional  number  officer;  vacancy  not  filled,  1275, 

1276. 
Cliiefs  of  bureaus;  vacancy  temporarily  filled,  212,  214, 

364,  466,  1222,  1224,  1261,  1280,  1284,  1418. 
Date  effective,  826. 

Desertion;  officer  quitting  post  before  notice  of  accept- 
ance, 9S9. 
Head  of  department,  temporary  appointment  to  fill 

vacancy,  212-217. 
Implied;  acceptance  of  another  office,  529. 

acquiescence  in    dismissal;  acceptance   of  other 

office,  etc.,  989. 
naval  officer  accepting   diplomatic   or   consular 
appointment,  579. 
Mileage  allowed  for  travel  home,  844. 
Naval  officers;  subsequent  appointment  to  Marine 

Corps  authorized,  1461. 
Officers  declining  to  submit,  340. 
Officers  in  departments,  limitation  on  temporary  ap- 
pointment to  fill  vacancy,  216. 
Retired  enlisted  men,  1514. 
Revocation  of  acceptance,  invalid,  583,  747. 
Right  of  officer  to  resign,  99. 

To  escape  dismissal;  naval  officer  ineligible  for  reap- 
pointment, 582. 
Undated;  filled  in  and  accepted  for  cause,  583. 
RES  JUDICATA: 

Advancement  of  officer  for  heroism;  prior  adminis- 
tration, 734. 
Applies  only  to  specific  case  decided,  349. 
Attorney  General  will  not  review  opinion  of  prede- 
cessors, 320. 
Decisions  of  heads  of  departments  are  binding  on  suc- 
cessors, 348-349. 
Examinations  for  promotion.  Navy;  facts  once  deter- 
mined not  reopened,  1183. 
Finality  of  court-martial  sentence  after  confirmation, 

1038,  1039. 
Qualifications  of  candidate  after  appointment,  96,  750. 
Reconsideration  of  action  by  reviewing  authority, 
general  courts-martial,  1051, 10.52. 


1679 


INDEX. 


RKS  JUDICATA— rontimicd. 

Reopening  of  accounts  by  subseiiuent  administration, 

255,  256. 
Retirement  of  officer;  cause  of,  909,  910. 
RESOLUTIONS: 

Form  of,  1S7. 
RESPONSIBIUTY: 
Disbursing  clerks,  212. 

Disbursing  officers,  for  losses,  etc.;  how  relieved  from, 
488,  1.362, 1363,  1527,  1528. 
for  expenditures  by  order  of  superior  officer,  266. 
wrecked  or  captured  vessels,  relief  of,  266. 
Heads  of  departments  for  official  acts,  78,  350,  .351. 
Military  officers  committing  illegal  acts,  54,  57, 1003. 
RESTORATION; 

Dismissed  officers,  94,  582, 1012,  1 178. 
RETAINER  PAT: 

See  Naval  Reserve  Force;  Pay  of  Naval  Establishment. 
RETIRED: 

Definition  of,  672. 
RETIRED  ENLISTED  RIEN: 
Active  duty,  1405,  1406,  1451. 

death  gratuity  law  applicable  to,  1.546,  1.547. 
pay  and  benefits,  872,  873,  890, 1269, 1299, 1514. 
Civil  employment;  restrictions  on  double  salaries  not 

applicable  to,  1411. . 
Computation  of  service;  pay  and  allowances,  1299. 
Detail  to  educational  institutions,  441. 
Honorable-discharge  gratuity  and  continuous-service 

pay,  890. 
Marine  Corps;  laws  relating  to,  967. 
Navy;  pay  of,  872,  873. 
Promotion,  1514. 
Rank,  1269. 

Resigning  to  reenlist,  1514. 
Status  of,  5:38,969,  1180. 
RETIRED  OFFICERS: 

See  Civil  employment;  Details;  Pay  of  Naval  Establish- 
ment; Retirement;  Retiring  boards;  Wholly  retired. 
Active  duty;  advice  and  consent  of  Senate  required  for 
command  of  vessels,  659. 
as  member  of  court-martial,  1018. 
attending  court-martial  as  witness  or  accused,  658. 
chiefs  of  bureaus  and  Judge  Advocate  General,  376, 

377. 
command  in  time  of  war,  659. 
death  gratuity  law  applicable  to,  1546, 1547. 
detachment  without  formal  order,  659. 
leave  of  absence  does  not  detach  from,  659. 
Marine  Corps,  under  Navy  laws,  659. 
not  an  officer  of  active  list,  657. 
orders  must  be  specific,  658. 
pay  and  aUowances,  913-915,  1380,  1381,  1437,  1512, 

1513. 
promotion  and  pay,  1512,  1512. 
policy  of  Congress,  655,  657. 
practical  restoration  to  active  list,  658. 
preparation  of  affidavit  is,  658. 
prohibited,  except  in  time  of  war,  656. 
special  enactment,  fixing  officer's  pay,  1437. 
warrant  and  commissioned  warrant  officers;  pay; 
creditable  record,  1503,  l.')04. 
Additional  compensation  allowed  by  college  to  which 

detailed,  439. 
Advancement  in  rank;  date  effective,  6.38-640. 
jiu^isdiction  of  accounting  officers,  238. 
new  commissions,  1368. 
not  promotion  to  higher  grade,  652. 
Allowances;  chiefs  of  bureaus  subsequently  retired, 

1.303. 
Appointment  as  flfeet  engineer,  500. 


RETIRED  OFFICERS-Continued. 

Appointment  as  prize  commissioners,  1139. 

to  office  limited  to  active  list;  not  eligible  for,  643, 
658. 
Attorney  against  United  States;  not  to  act  as,  224,  969, 

1.333. 
Chief  of  Naval  Operations;  rank  and  pay,  1418. 
Chiefs  of  bureaus  continuing  to  serve  after  retirement, 
376. 
subsequently  retired,  1303. 
Civil  employment;  prosecuting  claims  or  defending 
accused  before  courts-martial,  etc.,  224,  969,  1333. 
in  departments  held  by,  337. 
in  territories;  restrictions  on  holding,  1075. 
may  accept  position  as  mayor  of  a  city,  1075. 
restricted:  private  companies,  1250. 
restrictions  on  double  salaries  not  applicable  to, 

1411. 
restrictions  on  holding, 1066-1071. 
Civil  War  ser%ice;  rank  and  pay,  968,  1266,  1282,  1293, 

1312. 
Commissions  furnished  to,  when  advanced  in  rank, 

1368. 
Congressman;  whether  eligible  to  hold  both  places, 

34,  643. 
Counsel  before  courts-martial,  departments,  etc.,  224, 
,969, 1333. 

Courts-martial;  duty  as  members  of,  1018. 
jurisdiction  over.  62,  631,  643,  644. 
veto  of  bill  changing  law,  643,  644. 
Decisions  relating  to,  632-646. 
De  facto  officers,  641,  912. 
Dental  Corps:  rank  and  pay,  1422. 
Detailed  to  educational  institutions,  438-441, 1247, 1248. 
Diplomatic  or  consular  appointment;  restrictions  on, 

579,  580. 
Eligibility  for  seat  in  Congress,  34,  643. 
Furloughed  officers,  distinguished  from,  583. 
General  legislation,  whether  applicable  to,  438,  580, 

633,  634,  658,  832,  908. 
Grade  on  retired  list,  Navy,  631. 
Held  to  be  an  "  officer  of  the  United  States,"  224. 
lUegally  retired;  status  of,  641. 
Incompatible  offices,  1069. 
Marine  Corps,  active  duty,  966-968. 
Civil  War  service,  968, 1282, 1293. 
detail  to  educational  institutions,  441. 
status  of,  969. 
Medical  attendance,  440. 
Navy;  general  provisions  relating  to,  585-661. 

status  of,  631. 
Oath  of  office:  civilian  appointed  on  retired  list,  633. 
Pay;  held  to  be  salary,  911. 
held  not  a  pension,  635. 
Marine  Corps,  965. 

Nav-y,  general  provisions  relating  to,  906-916. 
Navy;  30  years'  service;  based  on  highest  pay  of 

grade,  1303. 
Navy  to  be  same  as  when  retired,  1189. 
not  increased  or  reduced  by  personnel  act,  1268. 
Places  of,  filled  by  seniority  promotion  in  the  Navy,  646. 
Precedence,  704. 

Promotion  on  retired  list  authorized  in  time  of  war  or 
emergency,  1512,  1513. 
on  retired  list:  pay  not  to  be  increased  by,  912,  913. 
prohibited,  1189. 
under  former  laws,  655,  656. 
pending  when  retired,  592,  651,  832. 
staff  officers  retired  for  length  of  service,  685. 
Rank,  chiefs  of  bureaus,  .372-376, 1303. 

Civil  War  service,  1266, 1282, 1293, 1312. 


1680 


INDEX. 


RETIRED  OFFICERS-Continiicd. 
Raak;  Congress  may  reduce,  910,  911. 

considered  as  having  been  retired  with  higher 
rank,  912. 

failing  physically  for  promotion,  640-641 ,  1366, 1433 

Judge  Advocate  General,  372-376,  673,  968. 

Marine  Corps,  964. 

retired  volimtarily  to  create  vacancies  in  the  Navy, 
1265,  13S0. 

same  as  when  retired,  1 189. 

selected  officer  not  physically  qualified  for  pro- 
motion, 1433. 

staff  officers;  age  or  length  of  service,  685. 

imder  recess  appointment,  640. 
Rations  not  allowed,  916. 
Relative  rank  with  Army  officers,  662. 
Removal  from  retired  list;  power  of  Congress,  635. 
Residence,  643. 

abroad;  citizenship,  572. 
Restoration  to  active  list,  660,  661. 
Signatures  of,  633. 
Status  of;  part  of  the  Navy,  632,  633. 

retired  on  furlough  pay,  619. 

whether  general  legislation  applicable  to,  438,  580, 
633,  634,  658,  832,  908. 

withdrawn  from  command  and  from  line  of  pro- 
motion, 654,  655. 
Status  of;  wholly  retired,  619,  631. 
Transfer  from  furlough  to  retired  pay  list,  916. 
Uniform  to  be  worn  by,  631. 
Veto  of  bill  restoring  to  active  list,  35,  36. 

to  render  not  amenable  to  court-martial,  643, 644. 
Witnesses  in  civil  court,  414. 
Wholly  retired;  status  of,  619,  631,  911. 
RETIREMENT: 

See  Pay  of  Naval  Establishment;  Retired  officers;  Eetiring 

board;  Wholly  retired. 
Acting  assistant  siu'geons,  528. 
Additional  number  engineer  officers,  1366. 

officer;  vacancy  not  filled,  1275, 1276. 
Age;  chiefs  of  bureaus,  672. 

dental  officers,  seventy  years,  1422. 

Marine  Corps,  964,  969. 

naval  officers  ineligible  for  selction  because  of, 
1434, 1551. 

not  applicable  to  certain  officers  of  the  Navy,  593. 
to  volunteer  officers,  592. 

sixty-two  years,  Na\'y,  589. 

sixty-four  years.  Navy,  589, 1435. 

staff  officers,  685. 
Appointment  of  successor  completes,  596. 
Army  decisions  applicable  to  Na\'y  cases,  632. 
Cause  of;  can  not  be  altered,  620,  909,  910. 

jurisdiction  of  accounting  officers,  605. 
Chief  of  Naval  Operations;  rank  and  pay,  1418. 
Chiefs  of  bureaus ;  age  or  length  of  service;  rank,  672, 673. 

decisions  relating  to,  372-377. 

rank,  672,  673. 

subsequently  retired,  1303. 

vacancy  created  by,  672. 

vacancy  not  created  by,  376. 

vacancy,  temporary,  created  by,  215. 
Civil  employees;  age,  1536. 

annuities  paid  monthly,  1542. 

applications;  certificates  of  heads  of  departments, 
1540. 

classification  and  rates  for  annuities,  1537. 

Commissioner  of  Pensions,  jurisdiction;  appeals, 
1538. 

computation  of  service,  1538. 


RETIREMENT— Continued . 

Civil  employees;  deductions  from  pay,  1540, 1541. 

deductions  from  pay  compulsory,  1541. 

dedaetioiis  from  pay,  donations,  etc.,  creflited  to 
retirement  fund,  1541. 

deductions  from  pay  refunded  on  separation  from 
service,  etc.,  1542. 

disability  retirement  in  lieu  of  other  compensation, 
1538,  1539. 

general  provisions,  1536-1543. 

moneys  not  subject  to  attachment,  etc.,  1543. 

persons  entitled  to,  1536. 

reinstated  employees,  etc.,  1541. 

reports  to  be  made  by  departments  concerning 
service,  etc.,  1542,  1.543. 

retention  in  service  beyond  retiring  age,  1539,  1540. 
CiviUans  not  entitled  to  benefits  of  Navy  laws,  586-587, 

632. 
Civil  War  officers;  rank  and  pay,  968,  1266,  1282,  1293, 

1312. 
Colonels  in  Marine  Corps  as  brigadier  generals,  1462. 
Compulsory,  to  create  vacancies,  1266. 

repeal  of  law,  1403. 
Congress  may  transfer  officer  to  retired  list,  92. 
Courts  without  jurisdiction  to  order,  620,  642. 
Date  of,  591,  592,  596,  638-640,  912. 

of  vacancy  caused  by,  649, 1431. 
Definition  of  retired  as  applied  to  chief  of  bureau,  672. 
Dental  officers,  1422. 
Disability;  held  to  be  a  benefit,  602. 

Marine  Corps,  964,  968,  969. 

Navy,  598-617. 

certain  officers  not  retired  for  other  cause,  593. 
not  incident  of  the  service,  617. 
not  incident  of  the  service;  wholly  retired,  617. 
Engineer  officers  who  are  additional  numbers  in  grade, 

1366. 
Enlisted  men;  computation  of  service,  1269,  1270, 1291, 
1299,  1529,  1550. 

Naval  Academy  band,  1355. 

thirty  years'  service,  538,  967,  1269,  1270,  1299. 
Errors  in,  587,  601,  602,  621,  641,  642,  911,  912,  968,  %9. 
Finality  of  proceedings  after  President's  action,  616. 
Fifty-five  years'  serx'ice,  Na^-y,  593. 
Former  chief  of  bureau,  376. 
Forty-five  years  service;  Marine  Corps,  964. 

Navy,  staff  officers,  685. 
Forty  years'  service;  Marine  Corps,  964. 

Navy,  585. 

Navy;  inapplicable  to  certain  officers,  593. 
staff  officers,  685. 
Furlough  pay;  marine  officers;  illegal,  621,  622. 

Navy,  disability  not  incident  of  the  service,  617. 
Illegal;  status  of  officer;  stiU  on  active  list,  587. 
Incapacity;  definition  of,  598. 
Incident  of  the  service;  disability,  617. 
Irregulatities,  601,  602. 

acquiescence  in,  004. 
Judge  Advocate  General,  rank,  372-376,  673,  968. 
Length  of  service,  cliiefs  of  bureaus,  672,  673. 

computation  of,  5S7,  927,  964,  969, 1191, 1390,  1550. 

Navy,  inapplicable  to  certain  officers,  593. 

staff  officers,  6S5. 
Line  of  duty;  decisions  relating  to,  605-616. 
Major  General  Commandant,  Marine  Corps;  rank  and 
pay,  1392. 

vacancy  temporarily  filled,  215. 
Marine  Corps;  laws  and  decisions  relating  to,  963-971 . 
Mates,  519-521. 

Mental  temperament;  peculiarities  of,  593,  598,  599. 
Misconduct;    officer  of  Navy  not  to  be  retired  for,  622. 


1681 


INDEX. 


RETIREMENT— Continued. 

Moral  iinfilness  for  promotion,  597. 

not  to  bo  retired  for,  11S9. 
Naval  Academy  band  members,  13o5. 
Naval   Reserve  Force;  enrolled  members,  20  years' 
service,  144G. 

limited  to  physical  disability,  1509,  1510. 

physical  disability,  1549. 

service  credited  for,  1  r)09. 

transferred  members;  tliirty  years'  service,  1449. 
Navy;  certain  officers  to  be  retired  only  for  physical 
disability,  593. 

general  provisions  relating  to,  5S.>-661. 

hearing  required  before  retiring  board,  622. 

officers  not  recommended  for  promotion,  594,  640, 
641,  911,  1366,  1433. 

voluntary  authorized,  to  create  vacancies,  1265, 
1380. 
Pay  clerks;  reserve  service  credited  for,  1529, 1530. 
Permanent  incapacity,  definition  of,  59S. 
Physical  examination  for  promotion  not  sufficient  for, 
601. 

incapacity  defined,  598. 
President's  action;  delay  in,  617. 

illegal,  622. 

revocation  of,  619. 
President's  power;  constitutionality  of  statutes,  617. 
Probationary  officer;  dental  surgeon,  621. 
Promotion  pending;  status  of  officer,  592,  651,  832. 
Rank,  chiefs  of  bureaus,  372-376. 

chiefs  of  bureaus;  age  or  length  of  service,  672,  673. 

chiefs  of  bureaus  subsequently  retired,  1303. 

CivU  War  officers,  968,  1266,  12S2,  1293,  1312. 

commodore  changed  to  rear  admiral,  672. 

considered  as  having  been  retired  with  higher  rank, 
912. 

dental  officers,  1422. 

failingtoqualifyforpromotion,640-641,  1366,  1433. 

increased  for  creditable  service;  policy  of  Congress, 
687. 

Judge  Advocate  General,  372-376,  673,  968. 

Marine  Corps,  964. 

medical  officer,  next  higher  grade,  675. 

of  higher  grade;  not  cliange  in  grade,  686. 

recess  appointment,  640. 

retired  to  create  vacancies,  1380. 

same  as  when  retired,  1189. 

selected  officer  not  physically  qualified  for  promo- 
tion, 1433. 

staff  officers;  age  or  length  of  service,  685. 
causes  incident  to  the  service,  687. 
Revocation  of;  officer  illegally  retired,  587. 
Secretary  of  the  Navy  acts  for  President,  586,  642,  643. 
Service;  computation  of,  587-589,  927,  964,  969,  1191, 

1390,  1550. 
Selected  officer  physically  disqualified  for  promotion; 

actual  rank,  1433. 
Special  act  of  Congress,  911. 
Staff  officers,  685,  687. 

rank  of  rear  admiral,  672,  675. 
Temperamental  unfitness  for  duty,  593,  598,  599. 
Temporary  officers,  physical  disabihty,  1549. 
Thirty  years'  service;  Marine  Corps,  964. 

Navy,  1303. 

Navy;  may  be  denied,  586. 
Vacancies  filled  by  seniority  promotion,  646. 
Waiting  orders  distinguished  from,  643. 
Waiver  of,  521,  523. 
Warrant  officers,  511,  512,  602. 

machinists,  1269. 

Marine  Corps,  1462. 


RETIREMENT— Continued. 

Warrant  officers,  Navy  and  Marine  Corps;  reserve 

service  credited  for  purpose  of,  1529,  1530. 
Wholly  retired  distinguished  from,  911. 
RETIRING  HOARDS: 

Burden  of  proof;  cause  of  disability,  915,  916. 
Cliiefs  of  bureaus  ordered  to  appear  before,  376. 
Courts  can  not  review  action  of,  620. 
Findings;  incident  of  the  service,  617. 
Hearing  before;  officers  of  Navj'  entitled  to,  622. 
Illegally  constituted,  971. 

Judge  Advocate  General's  duties  relating  to,  1186, 1187. 
Marine  Corps;  composition  of,  970. 
provisions  relating  to,  964,  970. 
Navy  and  Marine  Corps;  convening  of,  on  foreign  sta- 
tions, 1472. 
Navy,  598-617. 

action  by  the  President,  616. 

composition  of,  598. 

findings  of,  603,  617. 

oaths  of  members,  603. 

powers  of  court-martial  and  court  of  inquiry;  may 

exercise,  G03. 
reconsideration  on  own  initiative,  604. 
President's  action;  delays,  617. 
illegal,  effect,  %8,  969. 
revocation  of,  619. 
Reconsideration  on  own  initiative,  621. 
Report  of,  cause  of  disability,  915,  916. 
Revision  by  the  President,  616. 
Surplusage  in  finding,  604. 
RETURNS: 

See  Accounts;  Crimes;  Disbursing  officers. 
False,  1170,  1368. 

Form  of  keeping  and  rendering,  259. 
Habeas  corpus;  time  and  form  of,  405. 
RETURNS   OFFICE: 

Copies  of  contracts  to  be  filed  in,  1118, 1119. 
Copies  of  returns;  evidence  in  court,  428. 
Duties  of,  398. 

False  returns  filed  in;  prosecution  for,  428. 
Navy  contracts;  copies  to  be  filed  in,  397. 
Penalty  for  omitting  to  file  returns,  1119. 
REVENUE  CUTTERS: 

Cooperation  with  Navy,  1091. 
REVENUE  CUTTER  SERVICE: 

Consolidated  with   Life  Saving   Service  and    desig- 
nated as  Coast  Guard,  1400. 
Service  in,  credited  to  naval  personnel  for  pay  and 
retirement,  1550. 
REVIEWING  AUTHORITY: 

Court-martial  cases;  decisions  relating  to,  1037-1055. 
REVISE: 

Definition  of,  359, 1043. 
REVISED   STATUTES: 
Explanation  of,  2,  1173. 
Interpretation  of,  18,  22. 

Interpretation  of;  particular  words  defined,  185, 186. 
Repeal  provisions,  1173. 
REVISION: 

Court-martial  proceedings,  not  second  trial,  120. 
Examining  board's  proceedings,  724-728. 
Proceedings  of  court-martial,  reconvened,  1043, 1044. 
REVOCABLE  LICENSE: 

Use  of  public  land  by  private  parties,  291. 
REVOCATION: 

Acceptance  of  resignation,  invalid,  583,  747. 
Appointment  as  mate,  522. 

acting  assistant  surgeon,  529. 
acting  chaplain,  1396. 
acting  ensign,  1435. 


1682 


INDEX. 


REVOCATION— Continued . 

Appointment  as  midshipman,  747. 

second  lieutenant,  Marine  Corps,  1461, 1462. 
temporary  officer  in  a  higher  grade,  652. 
warrant  officer,  524. 
Discharge;  by  illegal  sentence  of  court  martial,  568, 975, 
1008, 1009. 
of  enlisted  man  obtained  by  fraud,  568. 
issued  by  mistake  of  law,  1011. 
Dismissal  of  midshipman;  unauthorized,  761. 
President's  action  on  examining  board  for  promotion, 
596,  630,  728,  734. 
on  retiring  board,  619,  620. 
Recess  commission,  100. 
Retirement,  587,  596. 

Temporary  commission;  officer  issued  new  cormnission 
in  same  grade,  669. 
REWARDS: 

Civil  employees,  for  suggested  improvements,  1514. 
Deserters  arrest  of,  US. 

checkage  of  amount  against  pay  unauthorized, 
1064. 
RIBBON'S: 

Presentation  of,  in  coimection  with  medals,  1521. 
RIFLE  PR-\CTICE: 

Use  of  ranges  by  naval  service,  1412,  1413. 
RIGGERS: 

Service  on  boards  concerning  repairs  to  vessels,  777. 
RIVERS: 

See  Regattas. 

Rules  for  preventing  collisions,  1125,  1130,  1135,  1251- 
1261. 
motor  boats,  1356-1358. 
ROAD  DUTY: 

State  interference  with  Federal  instrumentalities,  50. 
ROBBERY: 

Mail  custodian;  offense  against,  13.39. 
Personal  property  of  United  States,  1328. 
Punishment  for,  1350. 
ROPE  WALKS: 

Superintendent  of,  at  navy  yards,  779,  780. 
ROSETTE: 

Presentation  of,  to  be  worn  in  lieu  of  medals,  1521. 
ROYALTIES: 

Lands  in  naval  petroleum  reserves  and  royalty  oil  in 
naval  reserves,  1545. 
RUBBER  STAIVEP: 

Signature  of  pubUc  officer,  351. 
RULES: 

See  Regulations. 
RULES  OF  THE  ROAD: 

Collisions;  duty  of  master;  penalty,  1215,  1216. 

Great  Lakes,  etc.,  1240-1246. 

Harbors,  rivers    and  inland   waters,    except   Great 

Lakes  and  Red  River  of  the  North,  etc.,  12.51-1261. 
High  seas;  international,  1204-1215. 
Motor  boats;  regulation  of,  on  na\'igable  waters,  1356- 

1358. 
Navigation  of  certain  inland  waters,  1246,    1247,    1251- 

1261. 
Pearl  Harbor;  navigation,  anchorage,  etc.,  1382. 
Red  River  of  the  North  and  rivers  emptying  into  the 
Gulf  of  Mexico,  and  their  tributaries,   1125-11.30, 
1246, 1247. 
Red  River  of  the  North,  Mississippi  River,  etc.,    1135. 
Regattas  or  marine  parades;  rules  governing,  1300, 1301. 
Regulations  governing  vessels  propelled  by  steam,  etc., 

in  passing  each  other,  1135,  1246,  1260. 
Shipping  Board  to  recommend  changes  in  navigation 
laws  and  regulations,  1467. 


RUNNING  MATES: 

Advancement  of  stafi  officers  with,  1426. 
SAILING   DIRECTIONS: 

Hydrographic  Office  to  provide,  387, 1238. 
SAIL>I.4KERS: 

See  Warrant  officers. 

Service  on  boards  concerning  repairs  to  vessels,  777. 
SAINT  ELIZABETHS   HOSPITAL: 

Deceased  inmates;  disposition  of  moneys,  1296. 
Established  in  District  of  Columbia,  for  the  insane, 

1161-1163. 
Insane  patients,  naval;  pay  and  expenses  of,  788. 
prisoners  of  war  and  interned  persons;  admission 
to,  1417, 1418. 
Pensions  of  inmates,  how  paid,  1155. 
Secretary  of  the  Interior  charged  with  supervision 
of,  395 . 

Service  pensions  due  inmates,  paid  to  superintendent 

789.  ' 

SALARY: 

See  Double  salaries;  Pay  of  civil  eslablishment;  Pay  of 

Naval  Establishment. 
Commutation  of  quarters  held  to  be,  702. 
Pay  of  retired  officer  is,  911. 
SALES: 

See  Printing  and  binding;  Public  property. 
Wages  of  enlisted  men;  commanding  officer  to  dis- 
courage, 573. 
SALVAGE: 

Distribution  of,  awarded  to  naval  vessels,  114.5, 1147. 
Government-owned  vessels;  amount  collected;  dispo- 
sition of,  1533. 
Naval  appropriations  not  credited  with  value  of,  1397. 
Naval  vessels;  decisions  relating  to,  775. 

to  render  service;  compensation    collected    for, 
1508. 
Permanent  appropriation  for  pajTnent  of,  under  Navy 

Department,  1106. 
Remimeration;  public  vessels  excepted,  1372. 
SAMOA: 

Acknowledgment  of  deeds  in,  1291,  1292. 
Census  to  be  taken  by  governor,  1525. 
Civil  employees,  782. 

pay  while  in  transit,  1278. 
Governor:  certificate  as  to  acknowledgments  in,  1291 
1292. 
commissioned  by  President,  102. 
Military  government  of,  109. 
Secretary  of  the  Interior,  j  urisdiction  over,  395. 
Status  of,  and  of  naval  governor,  1292. 
SAMPLES: 

Tobacco,  inspected  by  board  of  naval  officers  before 
awarding  contract,  1250. 
SAN  DOMINGO: 

See  Dominican  Republic. 
SANITARIUM: 

Medical  expenses  of  officer  in,  904. 
SATURD.^Y: 

Afternoons;  holiday  in  District  of  Columbia,  782. 
SAVINGS: 

Deposit  of,  by  enlisted  men.  Marine  Corps,  951,  1295. 
Deposit  refunded; enlisted  men  rated  as  mates  or  ap- 
pointed as  warrant  officers,  524. 
Enlisted  men.  Navy;  deposit  of,  877, 1202. 
SCANDALOUS  CONDUCT: 

Offenses  not  specifically  provided  for,  charged  as,  1028. 
Punishable  by  naval  court-martial,  984,  998. 
SCHOOLS: 

See  Educalional  institutions;  Naval  Academy. 


1683 


INDEX. 


SCHOOLS— Continued. 

Aviation;  instruction  of  Coast  Guard  at  Navy  schools, 

1456. 
Detail  or  enlisted  men  to  nautical  school  in  Philip- 
pines, 1297. 
Instruction;  for  members  and  applicants,  Naval  Re- 
serve Force,  1448. 
Loan  of  naval  equipment  to  military  schools,  1277, 
1359. 
of  vessels  and  equipment  to  nautical  schools,  1297, 
1367,  1368. 
Nautical;  naval  officers  detailed  to,  1368. 
Retired  officers  detailed  to,  1247, 1248. 
Scientific;  detail  of  naval  officers  to,  1184, 1185. 
Summer  schools  for  boys;  Secretary  of  Na^•y  may  es- 
tablish; enrollment  in  reserve,  1546. 
SCIENTIFIC: 

Instruments;  loan  of,  by  Secretary  of  the  Na\'y,  1201. 
Investigators;  afforded  facilities  for  studies  and  re- 
search in  departments,  etc.,  1275. 
SCREW  THREADS: 

Standardized;  use  by  Navy;  specifications  in  proposals, 
1520. 
SEAL: 

Bonds,  481,  482. 

Commissions  of  naval  officers  to  have  Navy  Depart- 
ment seal  affixed,  1248. 
Definition  of;  impression  without  wax,  186. 
Executive  departments;   copies  of  records  certified 
under,  426,  427. 
counterfeiting,  etc.,  1489. 
Fur  seals;  use  of  naval  forces  to  protect,  1387. 
SEAMEN: 

See  Enlisted  men. 

Rating  of  ordinary  seaman  changed  to,  1423. 
SEAMEN  GUNNERS: 

Additional  pay,  enlisted  men  holding  certificates  as, 
866. 
SEARCH  AND  SEIZURE: 

Private  papers,  use  of,  in  evidence,  123. 
Protection  against  unreasonable,  117. 
SEA  SERVICE: 

See  Pay  of  Naval  Establishment, 
Advances  to  naval  officers  ordered  to  and  from,  1472. 
Definition  of;  decisions  relating  to,  878-883. 
Marine  Corps,  954. 

pay,  948. 
Pay  of  naval  officers,  1302. 

of  officers  and  enlisted  men.  Marine  Corps,  1408. 
Requirement  for  promotion,  line  of  the  Navy,  1434. 
Selection;  requirement  not  applicable  to  staff  corps, 

1513. 
Staff  officers  who  have  been  chiels  of  bureaus,  578. 
Volunteer  officers  credited  with,  on  transfer  to  regular 
Na^T,  530. 
SEAT  OF  GOVERNMENT: 
See  District  of  Columbia. 
Enemies'  flags  collected  at,  381. 
Executive  departments  located  at,  191. 
Navy  Department  established  at,  331. 
SECOND  LIEUTENANTS: 

Age  and  examination  of  candidates,  1270. 
Appointments,  922,  925. 

from  dismissed  midshipmen  restricted,  1281. 
from  graduates  of  Naval  Academy,  1188, 1189, 1270, 

1392. 
from  graduates  of  Naval  Academy;  commence- 
ment of  pay,  1221,  1222. 
from  midshipmen  or  Army  cadets  failing  to  gradu- 
ate; restricted,  1462. 


SECOND  LIEUTENANTS-Continued. 

Appointments,    qualifications;    ages,   examinations; 

former  officers;  prol>ation,  1461, 1462. 
F.nsigns  rank  with,  602. 
Number  of,  Marine  Corps,  1458. 

Precedence  determined  by  competitive  examination, 
1462. 
SECRETARIES: 

Admiral  and  vice  admiral  allowed,  455. 

at  sea;  no  civil  appointment  allowed,  1182. 
Admiral  of  the  Na\'y,  appointment  and  status  of  Sec- 
retary to,  527. 
Admiral;  pay  of  secretary,  794,  805. 
Naval  officers  detailed  as,  1182. 
Ranlc  and  allowances  of,  455. 
Status  of,  52.5. 

To  commanders  of  squadrons;  pay,  794,  805. 
Naval  Academy;  pay,  794,  805. 
vice  admiral;  pay,  794,  805. 
SECRETARY  OF  THE  INTERIOR: 

Fuel  for  departments  in  District  of  Columbia;  advance 
deliveries  by,  1553. 
purchase  and  storage  by,  1507. 
Hauling  for  Government  in  District  of  Columbia,  1553. 
Jurisdiction  over  Navy  contracts,  397. 
Office  created,  395. 
SECRETARY  OF  THE  NAVY: 

See  Assistants;  Delegation  of  powers;  Estimates;  Heads 
of  departments;    Navy  Department;  Regulations;   Re- 
ports. 
Absence,  death,  resignation   or  sickness;  temporary 

performance  of  duties,  333,  1401. 
Accounting  for  expenditures  from  appropriation  for 

obtaining  information,  1417. 
Accounting  officers  to  act  imder  direction  of,  266,  268. 
jurisdiction  with  relation  to,  236-240,  272,  273,828, 
829,  903,  1315, 1527, 1528. 
Accounts,  balances  arising  certified  to,  by  accounting 

officers,  1224. 
Acting  Secretary  during  temporary  absence,  333,  1401. 
Acts  for  the  President,  102,  342,  343,  344,  474,  500,  586, 
642,  643,  787,  9-56,  957. 
records  of  naval  examining  boards  and  boards  of 

naval  surgeons,  1481, 1482. 
regulations,  787. 
Advertising  for  proposals  for  supplies  and  transporta- 
tion, nil. 
for  suppUes;  certain  articles  excepted,  1113,  1114. 
for  tobacco,  1250. 
Allowances  to  naval  prisoners  fixed  in  discretion  of 

1311. 
Appointments,  acting  assistant  surgeons,  527, 1184. 
acting  chaplains,  1396. 
acting  ensigns,  1435. 
acting  pay  clerks,  1406. 
acting  warrant  officers,  525. 
civiUan  storekeepers  on  foreign  stations,  533. 
civil  establishment,  337. 
midshipmen,  745. 
nurses,  female,  1303,  1304. 
of  officers;  can  not  delegate  power  to  make,  533. 
pharmacists,  1262. 
Appropriations  controlled  and  expended  by  direction 

of,  1104. 
Approval  of  accounts  for  traveling  expenses,  237,  238, 
1179, 1189. 
claims;  effect  of,  272. 
Armor  plants;  cost  of  product;  itemized  accounts  to  be 

kept  by,  1419. 
Assistant  Secretary;  general   provisions  relating   to, 
333,  334. 


1684 


INDEX. 


SECRETARY  OF  THE  NAVT— Continued. 

Assistant  Secretary;  to  perform  duties  assigned  by, 

1217. 
Boards  appointed  by;  examinations  for  assistant  pay- 
master, 470. 
Boards  of  inquiry  convened  by;  investigation  of  mid- 
shipmen, 1286, 
of  survey  to  be  convened  by,  1477. 
to  be  ordered  by,  before  publishing  charts  and 
hydrographic  surveys,  1106,  12-37. 
Bonds  required  by,  for  property  loaned  to  military 

schools,  1277. 
Chaplains:  aimual  report  to,  503. 
Chief  of  Naval   Operations  performs  duties  under 

direction  of,  1401. 
Chiefs  of  bureaus  perform  duties  under  authority  of, 

361. 
Civil  employees,  navy  yards  and  stations;  number 

and  pay  fixed  by,  1312, 1313. 
Civil  office  held  by,  333. 
Claims  adjusted  by;   reports  to  Congress,  13.58,  1359, 

1508,  1527,  1545. 
Clemency  power  in  court-martial  cases,  85,  669,  1309. 
Coast  Guard  duties  performed  by  order  of,  1091, 1456. 
Collision  claims  involving  naval  vessels;  adjustment; 

report  to  Congress,  1358, 1359. 
Commissioner  of  Pensions;  jurisdiction  with  relation 

to,  396,  397,  1155. 
Commissions  of  officers  signed  by,  102. 
Computations  as  to  numbers  of  officers  in  grades.  1529. 
Condemnation  proceedings  instituted  by,  for  acquiring 

timber,  suppUes,  etc.,  1518. 
Contracts;  advertising  for  proposals  for  suppUes  and 
transportation,  1111. 
bids  regarded  as  excessive  may  be  rejected,  1114. 
conditions  relating  to  quality   of  supplies  pre- 
scribed by,  1115. 
foreign  supplies;  bids  to  be  opened  in  presence  of, 

1114. 
made  by,  where  bidder  fails  to  furnish  required 

bond,  1112, 1113. 
purchase  of  fuel,  1115. 
to  be  made  by  or  under  direction  of,  1111. 
to  cause  officers  maMng  same  to  sign  names  at  end, 

etc..  Ills,  1119. 
to     furnish    instructions    and    blank    forms    to 
officers  making,  1119. 
Council  of  National  Defense:  membership  in,  1465. 
Counsel  for  courts-martial  can  not  be  employed  by, 

1019,  1020. 
Courts;  jurisdiction  over;  mandamus  proceedings,  778. 
Courts-martial,  action  on,  1309. 

for  hazing  ordered  on  approval  of,  1286, 1287. 

subject  to  review  by,  1287. 
proceedings  re\iewed  by,  1042, 1287,  1309. 
Custodian  of  property,  books  and  records,  352. 
Decision  final  as  to  character  of  man's  discharge,  566. 
Deck-court  records  to  be  reviewed  by,  in  special  cases, 

1309. 
Delegation  of  power  to  approve  bonds,  487. 
Detail  of  officers  to  shore  duty;  public  interest  must 

require,  1191,  1218,  1219. 
Development  of  Navy  petroleimi  reserves  and  oil 

lands;  leases;  use  of  proceeds,  1545. 
Disbursements  made  by  order  of,  266. 
Discharge  of  enlisted  men;  rules  to  be  prescribed  by, 

1381,  1382. 
Discretion;    clothing  outfits  on  first  enlistment;   law 
mandatory,  1203. 
duties  involve,  344,  345. 
not  reviewable,  237,  828, 829. 


SECRETARY  OF  THE  NAVY— Continued. 

Dismissal  of  civiUaa  instructor,  Naval  Academy,  re- 
quires approval  by,  1287. 
of  midshipmen;  duties  relating  to,  1286. 
Distribution  of  departmental  business  by,  357. 
Duties  discretionary,  344,  345. 

flags  of  enemies  collected  by,  381. 
general  pro\isions  relating  to,  342-352. 
of  commandant.  Marine  Corps,  may  be  performed 
by,  929. 
Emergency  purchases  of  foreign  war  material,  1396. 
Estimates  furnished  to,  by  chiefs  of  bureaus,  385. 
submitted  by,  demands  on  balances  of  appropria- 
tions, 381. 
Examinations  for  appointment  in  Marine  Corps,  1461. 
for  promotion.  Medical  Corps,  prescribed  by,  1251. 
for  promotion  prescribed  by;    acting  ensigns  to 

lieutenant  (junior  grade),  1436. 
of  machinists  for  promotion  prescribed  by,  1314. 
Form  of  honorable  discharge  prescribed  by,  569. 
Furlough  of  officers,  583. 
General  courts-martial;  may  be  convened  by,  1248, 1310. 

may  empower  officers  to  convene,  1442. 
General  orders  issued  by;   violating  or  refusing  obedi- 
ence to,  985. 
provisions  relating  to,  332-333. 
Habeas  corpus  can  not  be  issued  to,  404. 
Hazing,  rules  to  prevent  approved  by,  1281. 
Head  of  the  Navy  Department,  331. 
Hydrographic   Office;    duties  performed  under  au- 
thority of,  387. 
publications:    number  of  copies  to  be  prescribed 
by,  1238. 
Hypothetical  questions  not  decided  by,  349,  350. 
Insane  personnel  committed  to  hospitals  by,  788,  789. 
Judge  Advocate  General's  duties  performed  under 

direction  of,  1186,  11S7. 
Leases  granted  by,  to  lands  other  than  oil,  mineral  or 

phosphate,  1419. 
Loan  of  naval  equipment,  etc.,  to  Red  Cross,  1394, 1395. 
Losses  by  disbursing  officers;    determination  as  to 

responsibility,  1527,  1528. 
Marine  Corps;  jurisdiction  over,  956,  957. 
May  aboUsh  offices  at  nav^  yards;  533. 
May  change  regulations  fixing  relative  rank  or  prece- 
dence of  officers,  466. 
May  not  act  for  chief  of  bureau  named  in  contract,  361. 
May  perform  duties  of  subordinates,  215,  351,  361. 
Medals  of  honor  to  enhsted  men  on  approval  of,  512. 
Member  of  Arlington  Memorial  Amphitheater  Com- 
mission, 1559. 
of  commission  for  care  of  State,  War  and  Navy 

Building,  332. 
of  Interdepartmental  Social  Hygiene  Board,  1517, 
1518. 
Midshipmen  miay  be  given  special  course  of  study 

prescribed  by,  1189. 
Naval  Home:  compensation  of  beneficiaries  employed 
at,  1294. 
disposition  of  effects,  deceased  iimiates,  1395. 
of  pensions  due  beneficiaries,  1395. 
Naval  supply  account  prices  to  be  approved  by,  1557. 
Navy  mail  clerks  selected  by,  1306. 
Oaths;  may  empower  officers  to  administer,  1240. 
Ocean  mail  vessels  constructed  subject  to  approval  of, 
1216. 
detail  of  naval  officers  for  duty  on,  1217. 
"Officer"  held  to  include,  1040. 
Orders  issued  through  chiefs  of  bureaus,  361. 

of  chief  of  Naval  Operations  to  have  effect  as 
orders  of,  1418. 


1685 


INDEX. 


SECRETARY  OF  THE  NAVY— Continued. 

(Irdors  to  officers  for  shore  duty;  <lo'erini nation  that 

public  interest  roiiiires,  1191,  IL'IS,  1219. 
Precedence  of  officers  determined  by,  667,  6CS. 
Pr&sident  may  direct  reference  of  cases  to  retiring 
boards  by,  598. 
orders  executed  by,  342. 
Property  records  to  be  kept  by,  227. 
Purchase  of  copyrights,  etc.,  for  Hydrographic  Office 

publications,  1236,  1237. 
Quarters;  jurisdiction todeterminewhennot  available, 

1,514. 
Ratings  and  grades  for  enlisted  men  may  be  estab- 
lished by,  1552. 
Records  transferred  from  other  departments  to  be  pre- 
served by,  1283,  1295. 
Regulations;  approval  by  President,  784. 
duties  of  Supply  Corps,  468. 
Naval  Home,  1160. 
not  binding  on,  352. 
or  general  orders  of;  violating  or  refusing  obedience 

to,  985. 
promotion  of  warrant  officers,  1267. 
rations,  1194. 
sale  of  old  material,  1190. 

of  stores  to  naval   personnel  and  civil  em- 
ployees, 1313,  1314. 
summary  courts  martial,  1009,  1311. 
Reports  required  to  be  made  by,  381. 

required  to  be  made  to,  by  commanding  officers  of 

vessels,  995. 
to  Congress,  of  civil  employees  paid  from  naval 
appropriations,  1194. 
Reprimand  of  officers  by,  119,  351,  352,  1004. 

acts  for  the  President,  642,  643. 
Revocation  of  appointments,  acting  chaplains,  1396. 
Sale  of  armament  for  sentimental  reasons;  judgment 
concerning,  1284. 
of  Marine  Corps  stores  to  naval  and  civilian  per- 
sonnel, 1391. 
of  vessels,  777-779. 

and  material;  annual  report  required,  381. 
captured  as  prize,  1141. 
procedure,  1192. 
Salvage  may  be  collected  by,  1508. 
Secretary  of  the  Interior;  jurisdiction  with  relation  to; 

Navy  contracts,  397. 
Selection  boards  appointed  by,  1430,  1431,  1529. 
Ships'  stores  profits  expended  in  discretion  of,  1359. 
Specifications  to  be  approved  by,  for  steel  in  construc- 
tion of  vessels,  1195. 
Subordinate's  duty  performed  by,  215, 351,  361. 
Summary  courts-martial;  may   empower  officers  to 
convene,  1441. 
records  destroyed  in  discretion  of,  1311. 
regulations  prescribed  by,  1009,  1311. 
Superintendence  of  naval  hospitals,  1159. 
Supervision  of  chiefs  of  bureaus,  300. 
Supreme  Court  reports  and  digests  furnished  to,  1365. 
Travel;  civil  employees  to  and  from  insular  possessions; 
pay  allowed  by,  1278. 
claims;  approval  of,  237,  238,  1179,  1189. 

distances  determined  by,  1315. 
repeated,  naval  officers;  actual  expenses  allowed 
in  discretion  of,  842,  843, 1272-1274,  1278. 
Trustee  of  Navy  pension  fund,  1153,  1154. 
Vessels  named  by,  774. 
SECRETARY   OF  THE  TREASURY; 

Annual  report  by,  of  expenditures  in  Navy  Depart- 
ment, 261,  1183. 
Reports  to  be  submitted  to,  of  expenditures  in  Navy 
Department,  261,  265,  266. 


SECRETARY  OF  WAR: 

Accounting  officers'  jurisdiction  with  relation  to,  240- 

242. 
Is  civil  officer,  34. 
Naval  officers  detailed  for  duty  under,  507,  578,  1198, 

1199. 
Navigation  regulations  prescribed  by;  transportation 

of  explosives,  etc.,  1519. 
Orders  of,  are  the  orders  of  the  President,  83. 
SECURITY: 

Debts  to  Government;  authority  to  accept,  231. 
SEDITIOUS: 

Conspiracy,  1317. 

Words;  punishment  for  uttering  in  Navy,  984. 
SEDUCTION: 

Carnal  knowledge  of  female  under  sixteen,  1349. 
SEIZURE: 

Papers  of  accused;  whether  admissible  in  evidence 

against  him,  1023,  1024. 
Protection  against  unreasonable,  117. 
SELECTION: 

Additional  number  officers,  1430, 1432. 
Age  requirements  for  promotion  by,  1434. 
not  applicable  to  stafi  corps,  1513. 
suspended  in  certain  cases,  1551. 
temporarily  deferred,  1553. 
Board;  convening  of;  how  constituted;   proceedings; 
oath  of  members;  etc.,  1430-1433,  1529. 
for  staff  officers;  how  constituted,  1513. 
recommendation  of:  number  of  vacancies  to  be 

fiUed,  1432,  1529. 
time  for  convening,  line  and  staff,  1529. 
to  submit  additional  names  in  place  of  those  not 
acceptable  to  President,  1433. 
Eligibility  for  selection;  when  terminated,  1433. 
Engineer  officers;  sea  service  not  required  for  promo- 
tion, 1434. 
eligibility  for;  are  additional  numbers  after  promo- 
tion, 1432. 
Examinations  following,  1433. 
engineer  officers,  1435. 
officer  failing  physically,  retired  with  actual  rank, 

1433. 
officer  failing  professionally,  thereafter  ineligible, 
1433. 
Grades  and  ranks  to  which  applicable,  1430. 
Line  officers,  1430-1434. 

Majority  report;  two-thirds  of  board  must  ccJncur,  1432. 
Members  of  board  holding  recess  appointment,  1431. 
Naval  Reser\'e  Force,  during  war  or  emergency,  1510. 
Number  of  officers  recommended  by  board  for  promo- 
tion, 1432,  1529. 
of  vacancies  to  be  furnished  board,  1431,  1529. 
Officers  selected  but  not  promoted;  status,  1431. 
Precedence  of  officers,  652,  653,  669,  694,  1433. 
President's  action  on  report  of  board,  1433. 
Professional  and  physical  examinations  prior  to  pro- 
motion, 1433. 
Rear  admirals  during  war,  454. 

Recommendation  of  board;  number  of  vacancies  to  be 
flUed,  1432,  1529. 
six  members  must  concur,  1432. 
to  be  in  writing;  form  of,  1433. 
Records  of  officers  furnished  board,  722,  723,  1431. 
Retirement  of  officers  ineUgible  on  account  of  age,  1434. 
Right  of  officers  to  send  communications  to  board, 

1431. 
Sea  service  necessary  before;  line  officers,  1434. 
not  required  of  certain  line  officers,  1434. 
of  staff  officers,  1513. 
Service  in  grade  necessarj'  before;  line  of  Navy,  1432, 
not  required  in  stafi  corps,  1513. 


1686 


INDEX. 


SELECTION— Continued . 

Shore  duty  in  time  of  war  or  emergency;  eligibility  for 

promotion,  1434. 
Staff  officers,  1513,  1529. 
Statutory  requirements,  except  age  and  examinations 

suspended  in  certain  cases,  1551. 
Temporary  promotions  not  governed  by  statutory 
pro-\-isions,  1432. 
SELF-CRI3UNATION : 

Pardon  does  not  deprive  of  privilege  unless  accepted, 

122. 
Protection  of  witnesses,  121, 125. 

Witnesses  before  naval  courts;  protection  of,  1023, 1310. 
Witnesses  refusing  to  answer  can  not  be  punished,  403. 
SEjVUN  ARIES: 

Detail  of  naval  officers  to,  435. 
SENATE: 

Adjournment  after  confirmation  of  officer;  commission 

may  be  delivered,  1072. 
Appointing  power,  96. 
Appointments  without  consent  of;  accounting  officers 

notified,  1072. 
Confirmation  of  ineligible;  effect  of,  %. 
Consent  required  to  changes  in  rank  of  naval  oflBcers, 
734. 
to  appointment  indirectly  given,  96,  652,  735. 
Dismissal  of  naval  officers  by  President  with  concur- 
rence of ,  1011. 
Recess;  appointments  during,  99. 

appointments;  filUng  vacancies  in  departments, 
216, 217. 
no  salary  if  vacancy  existed  while  Senate  in 
session,  1066. 
temporary  adjournment,  33,  217. 
SENATORS: 

Witnesses  in  court;  compensation,  414. 
SENIOR: 

Construed,  930. 
SENIORITY: 

Date  stated  in  commission  determines,  652. 
Promotions;  constitutionality  of  legislation  requiring, 
647,648,681. 
examinations  required,  684,  685. 
in  Army,  93. 
in  Marine  Corps,  1461. 
in  Navy,  646,  680. 
SENIOR  MEMBER: 

General  court-martial,  to  preside,  1015, 1016. 
Summary   court-martial,   oath   administered  by,   to 
witnesses  and  recorder,  1006. 
SENIOR  OFFICER  PRESENT: 

Execution  of  summary  court-martial  sentence  on  ap- 
proval of,  1442. 
Foreign  station;  convening  of  examining  and  retiring 
boards  by,  1472. 
SENTENCE: 

See  Courts-martial;  Punislnnents . 
Adequate  punishment  required,  1034. 
Approval;  effect  of,  1037-1039. 

of  sentence,  and  not  of  whole  proceedings,  re- 
quired, 1037. 
Bad-conduct  discharge  not  to  be  executed  in  foreign 

country,  1006. 
Cashiered;  member  of  court-martial  absent  without 

authority,  1031. 
Certainty  required,  1064. 

Chief  of  bureau  dismissed  by  court-martial,  839. 
Civil  courts;  jurisdiction  over  courts-martial,  402-403, 

1047-1051. 
Clemency;  court-martial  members  may  recommend, 
1034. 


SENTENCE— Continued. 
Commutation  of,  85. 
dock  court,  1308. 
defined;    mitigation    distingtiished;    President's 

power,  1054. 
general  courts-martial,  1051-1055. 
to  dismissal,  441,  1010. 
Confinement;  deck  courts  may  adjudge,  limited,  1308. 
Confirmation  of,  1036-1051. 

by  President;  death,  or  dismissal  of  officers,  1036. 

dismissal  of  midshipmen,  1248. 
disapproval  must  be  distinctly  expressed,  1042. 
form  of  President's  action;  personal  signature  not 

required,  1040. 
officer  ordering  the  court,  defined,  1040.  ' 
power  of  reviewing  officer  who  is  not  authorized  to 

confirm  sentence,  1043. 
reconsidered  by  reviewing  authority,  1038,  1039. 
reduction  of  officer  to  enlisted  rating,  1045. 
Secretary  of  the  Navy's  power,  1042,  1043. 
Continuing  punishment;  remission  of  by  reviewing 

authority,  1052,  1053. 
Court-martial   required   for   pimishments   except  as 

otherwise  specified,  1002. 
Court  of  inquiry,  891. 
Cumulative,  courts-martial,  1063. 
Death;  concurrence  of  two-thirds  necessary  to  ad- 
judge, 1034. 
confirmation  by  President  required,  1036. 
imprisonment  may  be  substituted  for,  983. 
mitigation  of,  1054,  1055. 
offenses  punishable  by,  979-982. 
officer  demanding  trial  may  be  sentenced  to,  1012. 
prohibited  unless  specifically  authorized,  1034. 
Deck  courts,  1308,  1309. 

Disapproval  of,  by  officer  not  empowered  to  confirm, 
1043. 
effect,  988,  1037,  1038. 
findings  in  part;  effect  on  sentence,  1038. 
must  be  distinctly  expressed,  1042. 
Discharge;  deck  courts  may  not  adjudge,  1308. 

enhsted  men  sentenced  to,  are  additional  to  au- 
thorized strength.  Navy,  1423,  1463,  1478. 
illegal;  revocation  of,  568,  975, 1008,  1009. 
Discretionary  with  court-martial,  979,  981,  983,  984, 

985,990,991,994,996. 
Dismissal;  confirmation  by  President,  1036,  1248. 

court-martial  sentence  required  for,  441,  1010-1014. 
effect  of;  officers  ineligible  for  reappointment,  582. 
mandatory  in  certain  cases,  994,  1029,  1031,  1064, 

1287. 
midsliipmen;    confirmation  by  President,  1248. 
mitigation  of,  1053. 
officers  dismissed  pursuant  to,  or  in  commutation 

or  mitigation  of,  441,  1010. 
reduction  of  officer  to  enlisted  rating  equivalent  to, 
1045. 
Disqualification  to  hold  office;  continuing  punishment; 

remission  of,  1053. 
Excessive;  not  void,  403. 
Execution  of;  confirmation  required,  1036. 
Execution  of,  deck  courts,  1308. 
Execution  of,  prior  to  confirmation,  1037. 

summary  courts-martial  and  deck  courts,  1312. 
Fines,  990. 

expenses  of  prisoners  paid  from,  1313. 
imprisonment  until  payment  of,  1063,  1064. 
naval  hosiiil  al  fund  credited  with,  1159. 
Forfeiture  of  pay;  deck  courts  may  adjudge,  1308. 

summary  courts-martial  may  adjudge,  1007. 
General  courts-martial;  may  inflict  same  punishments 
as  summary  courts,  1010. 


1687 


INDEX. 


SENTENCE-Continucd. 

Hard  labor;   naval  courts-martial  may  adjudge,  983, 

9S4. 
lloalth  of   accused  ondangorod   by;    substitution  of 

dillcrent  punishment,  KKHI. 
lUcgal;  discharge  revoked,  568,  975, 1008, 1009. 
Imprisonment,  990. 

at  hard  labor,  .n  ci\al  prison  or  penitentiary,  9S3, 
984. 
substituted  for  death,  983,  984. 
beyond  term  of  enUstmcnt,  1004. 
place  of,  designated  by  reviewing  authority,  1004. 
until  pajTncnt  of  fine,  1003,  1064. 
Inadequate;    medical  officer  convicted  of  scandalous 

conduct,  583. 
Inoperative  until  confirmed,  1037. 
Irons,  use  of  abolished;  exceptions,  1309. 
Jurisdiction  of  civil  courts  with  relation  to  courts- 
martial,  402,  403,  1047-1051. 
Limitation   of  punishment,   time   of  peace;     naval 

courts-martial,  1062-10(>4. 
Loss  of  numbers,  continuing  punishment;   remission 
of,  1052. 
officer's  promotion  pending;  effect  of,  652. 
Majority  of  votes  determines,  1034. 
Midshipmen  con\acted  of  brutal  or  cruel  hazing,  1287. 

for  hazing;   punishments  authorized,  1286,  1287. 
Mitigation  of,  85. 

by  Secretary  of  the  Navy,  1309. 
Coast  Guard  personnel,  1455. 
deck  courts,  1308. 
form  of  action,  1052. 
general  courts-mai  tial,  1051-1055. 
summary  courts-martial,  1009. 
to  dismissal,  441, 1010. 
Pardon  of,  85. 

deck  courts,  1308. 
President's  power  to  mitigate,  1053, 1054. 
Prohibited  punishments,  1034. 
Promulgation  of,  1045. 

Reconsideration  of  action  mitigating,  1051,  1052. 
Reduction  of  officer  to  another  office,  988. 
of  officer  to  enlisted  rating,  988. 

confirmation  by  President,  1045. 
of  warrant  officer  to  enlisted  man,  524. 
Remission  of,  85. 

by  Secretary  of  the  Navy,  1309. 
Coast  Guard  personnel,  1455. 
deck  courts,  1308. 
general  courts-martial,  1051-1055. 
loss  of  pay;  discharge  of  accused  operates  as,  567. 
summary    court-martial,    without    commuting, 
1009. 
Repeated  offenses,  1003, 10O4, 1063. 
Reviewing  authority;    place  of  imprisonment  desig- 
nated by,  1064. 
Revision  of  by  court-martial,  1043,  1044. 
Single,  for  all  offenses,  1063. 
Secretary  of  the  Navy's  power  over,  1008, 1009. 
Secret,  not  to  be  divulged  until  approved  by  proper 

authority,  1019. 
Summary  courts-martial,  1006, 1007, 1309. 
execution  of,  1312. 

approval  by  reviewing  authority,  1007-1009, 
1442. 
Suspension  from  rank  and  grade,  continuing  punish- 
ment; remission  of,  1052. 
midshipmen;  President's  action  on,  1248. 
naval  officer;  undesirable  punishment,  583. 
of  officer's  pay  by  court-martial,  1033. 
precedence  of  officer  under,  668,  669. 
remission  of  unexecuted  portion  of,  669. 


SERVANTS: 

Unauthorized  use  of  (Government  laborers,  702. 
Use  of  enlisted  men  by  naval  officers,  829. 
SERVICE: 

See  Length  of  service;  Pay  of  naval  Establishment;  Sea 

service. 
Absence  without  leave;  period  of  not  credited,  588. 
Appropriations  transferred  between  bureaus  or  de- 
partments in  payment  for,  579,  1409,  1536. 
Army  and  Navy,  credited  to  naval  officers,  1191. 
-Vrmy  cadet,  not  credited  to  naval  officers,  1390. 
Army,  credited  to  enlisted  men  of  Navy  and  Marine 

Corps  for  retirement,  1299. 

-Vrmy,   Navy,   Marine  Corps,   Coast   Guard,    PubUc 

Health  Service  and  Coast  and  Geodetic  Survey; 

credited  for  longevity  pay,  1535. 

Civil  employees,  for  retirement;  computation  of,  1538. 

Civil  war;  retirement  of  officers  for,  968, 1266, 1282, 1293, 

1312. 
Coast  Guard  and  Revenue  Cutter  Service;  naval  per- 
sonnel credited  with,  for  pay  and  retirement,  1550. 
Commandant's  clerk,  not  mihtary  service,  534. 
Computation  of,  in  Naval  Reser\'e  Force,  1509. 

for  retirement  and  longevity  pay,   587-589,    1191, 
1390,  1535,  1550. 
Constructive,  credited  to  naval  officers  for  pay  piu:- 
poses,  821-823, 1268. 
credited  to  naval  officers  for  precedence,  691-694, 

1390. 
not  credited  for  pay  to  officers  appointed  after 
March  4, 1913;  1390. 
Definition  of  "serve;"  period  of  confinement  not  in- 
cluded, 589. 
Dental  officers  who  have  gained  or  lost  numbers,  1421. 
EnUsted  men  credited  with,  for  retirement,  1269,  1270, 
1291,  1299. 
transferred  to  Naval  Reserve  Force;  how  computed, 
1449. 
Incapacity  incident  to;  retirement  for,  603. 
Length  of;  computation,  officers  transferred  to  differ- 
ent branch  of  the  service,  1249. 
Midshipman,  not  credited  to  Army  officers,  1388. 

not  credited  to  naval  officers,  1390. 
Naval  Reserve  Force;  computation  of  longevity  for 
active  duty  pay,  1511. 
and  Marine  Corps  Reserve;  regular  officers  and  en- 
listed men  credited  with,  1529, 1530. 
Pensions  allowed  disabled  enhsted  men  for,  1154,  1155. 
pajrment  to  superintendent.  Saint  Ehzabeths  Hos- 
pital, 789. 
Public  Health  Service  credited  with,  in  other  organi- 
zations, 1533. 
Requirement  lor  promotion  by  selection,  1432,  1434. 
Sea;  definition  of;  decisions  relating  to,  878-883. 
Time  under  arrest,  in  confinement,  on  bail,  etc.,  588, 

589. 
Warrant  officers.  Navy  and  Marine  Corps,  credited 
with  reserve  service  for  retirement  and  longevity 
pay,  1529, 1530. 
SERVITUDE: 

Involuntary;  military  and  naval  enlistments  are  not, 
136. 
SESSION  LAWS: 

Navy  Department  supphed  with,  1235. 
SET  OFF: 

Against  Government;  right  of  officer  to  retain  amount, 

246. 
Court  of  Claims'  jurisdiction,  1362. 
Jurisdiction  of  accounting  officers,  244-246. 
Public  moneys  to  be  deposited  without  deduction, 
1095, 1096. 


1688 


INDEX. 


SETTLE; 

Definition  of,  233. 
SEWING  aiACHINES: 

Exchange  of,  in  part  payment  for  new  ones,  1474. 
SHELLS: 

Restrictions  on  purchase  of,  1395,  1396. 
SHIP  KEEPERS: 

Enlisted  men  detailed  as,  nautical  school  in  Philip- 
pines, 1297, 1298. 
SHIPPING  ARTICLES: 

What  contained  in,  555,  556. 
SHIPPING  BOARD. 

Commandeering  of  vessels  leased,  chartered  or  pur- 
chased from,  1467. 
Detail  of  naval  oflScers  for  duty  with,  1466. 
Development  of  merchant  marine  for  use  as  naval 

auxihary,  1554, 1555. 
Emergency  Fleet  Corpoi^tion;  restriction  on  payment 
of  lump-sum  employees,  1491, 1492. 
transfer  of  employees  to  and  from  departments, 
1491. 
Navigation  laws  and  regulations;  revision  of,  1467. 
Operation  of  alien  vessels  seized,  1477. 
Procurement  of  vessels  and  construction  and  repair  of, 

in  na\-y  yards,  etc.,  1466. 
Sale  of  timber  lands,  logs,  etc.,  acquired  for  the  Navy 

1518. 
Transfer  of  docks,  etc.,  to  Navy  Department,  1555. 
Transfer  to,  of  naval  vessels,  1467. 
SHIPS: 

See  Vessels;  Vessels  of  the  Navy. 
SHIP'S  BOOKS: 

Entries  required  to  be  made  in,  995. 
SHIP'S  COMPANY: 

Articles  for  the  government  of  the  Navy  to  be  read  to 

996. 
Vessel  lost;  amenable  to  discipline  until  discharge,  996. 
SHIP'S  HELPERS: 

Enlisted  men,  additional  pay,  866. 
SHIP'S  LOG: 

Punishments  by  commander  of  naval  vessel  to  be 
entered  in,  1002. 
SHIP'S    STORES: 

Profits;  charged  on  sales  from,  13.59. 

jurisdiction  of  accounting  oflicers,  233. 
not  public  money,  232. 
SHIP'S  TAILORS: 

Enlisted  men;  additional  pay,  866. 
SHIPWRECK: 

See  Vessels  of  the  Navy. 
Construed,  272. 
SHORE: 

Offenses  committeed  on,  against  inhabitants;  punish- 
ment. Navy,  985. 
SHORE  DUTY: 

See  Details;  Foreign  shore  duty;  Officers  of  the  Navy;  Pay 

of  Naval  Establishment;  Service. 
Beyond  seas,  definition  of,  1275. 

pay  of  Marine  Corps,  941,  948, 1275. 
pay  of  naval  officers,  818-821, 1275, 1302. 
pay  of  naval  officers  under  personnel  act,  1267. 
Distinction  between  what  constitutes  sea  service  and 

shore  duty,  878-883. 
Engineer  officers  and  construction  officers,  1401. 
In  time  of  war  or  emergency;  ehgibility  for  promotion 

by  selection,  1434. 
Marine  Corps,  955. 
Naval  officers;  pubUc  interest  must  require  and  orders 

so  state,  1191, 1218, 1219. 
Naval  Reserve  Force;  restricted,  1528. 
Navy  mail  clerks,  1513, 1514. 


SHORE  DUTY-Continued. 

Pay  of  officer  detailed  as  assistant  to  Bureau  of  Medi- 
cine and  Surgery,  466. 
officer  in  charge  of  Nautical  Almanac,  391. 
officers  under  personnel  act,  1267. 
superintendent.  Naval  Observatory,  390. 
warrant  officers,  1472. 
Sea  pay  allowed  commandant.  Mare  Island  navy  yard, 
1177. 
allowed  superintendent,  Naval  Academy,  1177. 
Supervisor,  New  York  Harbor;  naval  officer  allowed 
sea  pay  as,  1198, 1199. 
SHORE  LIBERTY: 

Commanding  officers  to  grant,  574. 
Deprivation  of,  by  commanding  officer,  as  punish- 
ment, 1002. 
On  foreign  station;  deprivation  of,  by  summary  court- 
martial,  1006. 
SHORTEST  USUALLY   TRAVELED  ROUTE: 

Mileage  allowed  for,  845. 
SICK: 

Separate  compartment  for,  on  naval  vessels,  995. 
SICK  LEAVE: 

See  Leave  of  absence. 
SICKNESS: 

Absence  from  duty  caused  by;  due  to  misconduct, 

82.5, 1436. 
Chiefs  of  bureaus,  duties  of,  213,  214,  364,  466, 1222,  1224, 

1201,1280,1284,  1418. 
Discharge  for;  preference  in  appointments   to   civil 

offices,  1065. 
Head  of  department,  duties  temporarily  performed 

by  another,  212,  214. 
Medical  treatment;  naval  persoimel  required  to  sub- 
mit to,  458. 
SIGNATURES: 

Abbreviation  used  by  pubUc  officer,  351. 

Acting  chiefs  of  bureaus,  213. 

Assistant  head  of  department,  194,  213. 

Forging    or    counterfeiting;  claims    against    United 

States;  punishment.  Navy,  990. 
Heads  of  departments;  what  constitutes,  351. 
Mark  included,  in  construing  Criminal  Code,  1355. 
President's  confirmation   of  court-martial  sentence, 

1040-1042. 
President's  required  to  commissions  before  seal  an- 
nexed, 1248. 
Retired  officers,  633. 

Rubber  stamp  used  by  public  officer,  351. 
SILVER: 

Disbursements  to  be  made  in,  1100. 
Gifts  to  naval  vessels;  acceptance  and  care  of,  1305. 
Transporting  on  naval  vessel,  985. 
SINGULAR: 

Includes  plural  in  Federal  statutes,  18,5,  1355. 
SITES: 

Condemnation  proceedings  to  obtain,  1199,  1490,  1491. 
Land  not  to  be  purchased  without  specific  appropria- 
tion and  specific  law  authorizing,  1116,  1117. 
Leased  by  Navy;  improvements  to  become  property 

of  lessor,  1508. 
Naval  hospitals;  Secretary  of  the  Navy  may  procure, 

1159, 1160. 
Transferred  to  jurisdiction  of  Navy  Department,  1457. 
SLAVES: 

Naval  forces  not  to  return  fugitives  from  service  or 

labor,  994. 
Seizure  of  vessels  in  slave  trade,  1347, 1348. 
SLEEPING  ON  WATCH: 
Punishment  for.  Navy,  979. 


1689 


INDEX. 


SMALL  ARiMS: 

Target  practice;  sale  of  ammunition,  etc.,  to  societies 
promotinK,  1516. 
SMALL-STORES  FUND: 
Created  for  Navy,  1184. 
.Nii\  y,  consolidated  with  clothinR  fimd,  12ai. 
SMITIISOMAX  INSTITUTION: 

Heads  of  departments  to  assist,  in  acquisitions  for 
Zoological  Park,  1204. 
SOCIAL  HYGIENE  BOARO: 

Creation  of,  etc.,  1517,  1518. 
SOCIETIES: 

See  Badges:  Military  societies;   Uniforms. 
Membersliip  fees  and  o.xpenses  of  public  officers;  re- 
strictions on  payment  of,  ri71. 
.*^inall-arms  target  practice;  societies  organized  to  en- 
courage, 1516. 
SOLDIERS  AND  SAILORS: 

.See  Civil  estabtiishmcnl;  Enlisted  men. 
Honorably  discharged  from  war  with  Germany;  rein- 
statement in  civil  establishment,  1530. 
Preference  for  appointment  and  retention,  civil  estab- 
lishment, 338,  780,  1065,  1180,  1383,  1524,  1526,  1530. 
SOLICITING: 

Contributions  for  presents,  etc.,  10T3,  1334,  1335. 
SOLICITOR: 

See  Naval  Solicitor. 

Naval;  duties  assigned  to  Judge  Advocate  General, 

1186,  1187. 
Navy  Department;  appointment  made  by  Secretary 
of  the  Navy,  206. 
duties  of,  321. 

investigation  conducted  by,  218. 
SOLICITOR  GENERAL: 

Duties  of,  282,  322. 
SOLITARY  CONFINEMENT: 

Commanding  officer  may  inflict  as  punishment,  1002. 
Summary  coiu-t-raartial  may  adjudge,  1006. 
SOUTH  AMERICAN  REPUBLICS: 

Detail  of  naval  officers  to,  in  connection  with  United 
States  commerce,  576. 
of  naval  officers  to;  acceptance  of  offices  under; 
dual  compensation,  1556. 
Naval  officers  appointed  to  office' in  Brazil;  leave  of 
absence,  etc.,  1399. 
SPANISH: 

Professor  of.  Naval  Academy,  771. 
SPECIAL  ACTS: 

See  Statutes. 
SPECIAUSTS: 

Marine  Corps,  enlisted  men,  pay,  942,  946. 
SPECIAL  MECHANIC: 

Ratings  established  in  Navy,  1495. 
SPECIFICATIONS : 

See  Charges  and  specifications;  Contracts. 
SPEEDY  TRIAL: 

Coiut-martial  to  sit  from  day  to  day,  Simdays  ex- 
cepted, until  sentence,  1029. 
Right  of  accused,  129,  130. 
SPIES: 

Punishment  by  naval  court-martial,  981. 
SPIRITS: 

DistiUed;  admitted  on  naval  vessels  for  medical  pur- 
poses only,  989. 
SPONGES: 

Employment  of  naval  forces  to  enforce  law  relating  to, 
1289,  1290. 
SQUADRONS: 

Commanding  officers;  allowed  rank  of  flag  officer,  576, 
6G0. 
may  convene  general  courts-martial,  1442. 


SQUADRONS— Continued . 

Foreign;  stores  furnished  to,  579. 
Medical  stores;  procurement  of,  466. 
Retired  officers;  command  in  lime  of  war,  659. 
STAFF   BUREAUS: 

Navy  Department,  378,  672. 
STAFF  OFFICERS: 

See    Chaplains;    Civil  engineers;    Construction    Corps; 
Dental  Corps;  Marine  Corps:  Medical  Corps;  Officers 
of  the  Navy;  Professors  of  matlicmaiics;  Supply  Corps. 
Additional   numbers  excluded    from   computations, 
1429. 
officers  permanently  commissioned  with  rank  of 
rear  admiral,  1429. 
Advancement  in  rank,  680-685. 

above  lieutenant  commander,  1513. 
below  lieutenant  commander,  1426. 
examinations,  1473,  1481,  1482. 
without  change  of  grade,  682,  683. 
Appointment  from  graduates  of  Naval  Academy,  765- 

768,  1392. 
Chiefs  of  bureaus;  eligibility  for  appointment,  362,  378. 
Civil  engineers  held  to  be,  685. 
Command;  rank  not  to  confer,  702,  1265. 
Communicating  directly  with  commanding  officer,  670, 
Distribution  in  grades,  1427. 

Examinations  for  advancement   in  rank,  1473,  1481, 
1482. 
not  required  for  promotion  in  grade,  1481,  1482. 
Line  officers  detailed  to  duty  under,  1359. 
Marine  Corps,  1460,  1461. 

organization;  appointment,  details,  etc.,  1460, 1461. 
rank  of,  929, 1460. 
relation  to  the  line,  921,  922. 
Midshipmen  appointed  as,  765-768, 1392. 
Military  command,  rank  not  to  confer  right  to  exer- 
cise, 702, 1265. 
line  officers  detailed  to  duty  under,  1359. 
Military  duties  not  compatible  with  grade  of,  507. 
Number,  1425,  1549. 

in  any  corps,  grade  or  rank;  computations;  dispo- 
sition effractions,  1428, 1429. 
in  any  grade  or  rank;  computations;  additional 
numbers  excluded,  1429. 
not  to  be  reduced,  1429. 
permanent  strength  not  reduced  by  act  of  June  4, 
1920;  1549. 
Physical  examination  for  advancement,  708. 
Precedence;  communicate  directly  with  commanding 
officers,  670. 
date  of  commission,  1429. 
with  line  officers,  689-695. 

in  processions,  courts-martial,  etc.,  704. 
Promotion  by  selection,  1513. 

by  selection;  time  for  convening  boards,  1529. 
by  seniority,  680, 681. 
Quarters,  695. 
Rank,  advancement  in,  680-685. 

advancement  above  lieutenant  commander,  1513. 
advancement  below  lieutenant  commander,  1426. 
general  provisions  relating  to,  673-685. 
not  to  confer  right  to  exercise  military  commaiid, 

702, 1265. 
retired  for  age  or  length  of  service,  685. 
for  causes  incident  to  the  service,  687. 
Rear  admirals;  distribution  between  upper  and  lower 
half,  1428. 
not  a  grade,  682. 

upper  and  lower  half;  pay  and  allowances,  1429. 
Relative  rank;  changed  to  actual  rank,  1265. 
with  Army  officers,  667. 


1690 


INDEX. 


STAFF  OFFICERS— Continued. 

Relative  rank  with  Marine  officers,  667. 
Retirement;  age  or  length  of  service,  6cS5. 

with  rank  of  rear  admiral,  672,  675. 
Titles,  671,  6S3. 

not  changed  by  rank,  1265. 
STAMP: 

Facsimile  signature  of  public  ofBcer,  351. 
STANDARDS: 
See  Flags. 

Screw  threads;  used  by  Navy;  specifications  in  pro- 
posals, 1520. 
STATE  DEPARTMENT: 

Foreign  decorations,  presents,  etc.,  tendered  to  officers 
through,  1187. 
STATE  INSTITUTIONS: 

Detail  of  naval  officers  to  military  academies,  etc.,  435. 
STATES: 

Arrest  of  Federal  officers  by,  51. 

Cooperation  with  United  States  in  protection  of  naval 

forces  against  disease,  1517. 
Domestic  violence;  use  of  naval  vessel,  114. 
Elections;  naval  officers  not  to  interfere  with,  1079. 
Foreign,  acceptance  of  present  from,  75. 
Health  laws,  jurisdiction,  49,  50. 

reports  not  furnished  to,  in  naval  cases,  461. 
Insurrection  against;  emploj'ment  of  Federal  forces  to 

suppress,  1169. 
Interference  with  Federal  instnimentaUties,  47. 

with  Federal  property,  774. 
Jurisdiction  of  oflenses  on  naval  vessels,  67. 
of  perjury  committed  in  Federal  court,  53. 
over  militia,  71. 

over  United  States  property,  289-292. 
Lands  leased  from,  by  the  Navy;  improvements  to 
become  property  of  lessor,  1508. 
purchased  in ,  for  use  of  United  States,  282. 
Laws  and  records  evidence  in  court,  429,  430. 
Laws  of,  appUcable  in  Federal  reservations;  criminal 

code,  1351. 
Limitation  upon  exemption  of  Federal  agencies  from 

control  by,  51. 
Loan  of  naval  equipment  to  military  schools  on  gov- 
ernor's appUcation,  1277. 
Naval  forces  employed  to  suppress  insurrection  against, 

1169. 
Naval  vessel,  use  of,  to  maintain  law,  114. 
Notaries  public  of,  authorized  to  administer  oaths  and 
take  acknowledgments,  1072. 
may  administer  oath  of  allegiance,  1093. 
Offenses  violating  law  of  two  Governments,  120. 
Pilotage;  discrimination  against  national  vessels  for- 
bidden, 1130. 
Penitentiaries  and  prisons  may  be  used  by  naval 

authorities,  983,  984. 
Process;  service  on  persons  in  naval  or  civil  service, 

292,  293. 
Taxation  of  Federal  instnimentaUties,  48. 
STATE,  WAR  AND  NAVY  BUILDING: 
See  Navy  building. 
Apportionment  of  space  in,  331. 
Superintendent  of;  naval  officer.  Civil  Engineer  Corps, 
532. 
retired  officer  ineligible,  643. 
STATION: 

Absence  from,  without  leave  or  after  expiration  of 

leave,  985. 
Change  of;  transportation  furnished,  1535, 1536. 
Exchange  of  by  officers;  mileage,  844. 
Marine  Corps  headquarters  held  to  be,  895. 
Permanent;  defined,  1536. 


STATIONERY: 

Estimates  and  appropriations  for.  Navy,  1102. 
Printed   in   course  of  manufacture;   excepted   from 
printing  and  binding  law,  12%. 
STATUTES: 

Appropriation  acts;  title  of,  187. 
Bill  of  attainder,  73. 
Classes  of,  7. 
Constitutionality  of,  30. 

Attorney  General's  opinion,  321. 

promotion  by  seniority,  647,  648,  681. 
Enforcement  in  foreign  countries,  70. 
Errors  in;  effect  of,  287. 
Ex  post  facto,  74. 
Form  of,  1S7. 
Interpretation  of,  9-24. 

appropriations, 1297. 

"authorized ' "  held  mandatory,  1203. 

clerks  construed,  206. 

clerks,  includes  chiefs  of  divisions,  203. 

company  or  association,  defined,  186. 

contracts  not  authorized  unless  language  of  law 
specific,  1297. 

county  defined,  185. 

death,  resignation,   absence   and  sickness,  con- 
strued, 214,  215. 

definitions  of  particular  words,  185,  186. 

department  defined,  191. 

eflect  of  regulations,  787. 

errors  in;  effect  of,  287. 

general  principles,  9-24. 

"Insane  person"'  and  "lunatic"  defined,  185. 

masculine  applies  to  females,  185, 1355. 

"oath"  includes  affirmation. 

officer,  includes  persons  authorized   to  perform 
duties  of  office,  1S5. 

"persons"  applies  to  partnerships  and  corpora- 
tions, 185, 1355. 

plural  includes  singular,  185, 1355. 

present  tense  includes  future,  1355. 

seal  includes  impression  without  wax,  186. 

signature  or  subscription  includes  a  mark,  1355. 

singular  includes  plural,  185,  1355. 

vehicle  defined,  185. 

vessel  defined,  185. 

whether  Marine  Corps  included  in  Navy  laws,  962, 
963,  967,  968. 

whoever,  includes  corporation,  1355. 

writing  includes  printing  and  tj-pewrittng,  1355. 
Navy;  whether  applicable  to  Marine  Corps,  962,  963, 

907,  968. 
Penal ;  discharge  for  moral  un  fitness  held  not  to  be,  628. 
Repeal,  effect  of  on  former  act,  187. 

effect  of  on  penalties,  prosecutions,  etc.  187. 
Revised  Statutes,  explanation  of,  2. 
Special  act,  designating  appointee,  93,  532. 

for  reappointment  of  former  officer,  830. 

for  retirement  of  officer,  592,  911. 

restoring  officer  to  former  rank,  733. 
ST.4TUTES  .\T  L.\RGE: 

Definitions,  particular  words  in,  185, 186. 
Explanation  of,  5. 

Navy  Department  suppUed  with,  1235. 
STATUTES  OF  LIMIT.4TIONS: 

Claims  against  Government;  checks  outstanding  more 
than  three  years,  277. 

examined  by  accounting  officers,  1182. 
Courts  of  inquiry  not  bound  by,  1056. 
Desertion  in  time  of  peace,  1060-1062. 

in  time  of  war,  1057. 


54641°— 22- 


-107 


1691 


INDEX. 


STATITKS  OF  LIMITATIONS— Continued  . 

liciicral  offenses:  appluable  to  court-martial  or  other 

punishments,  1057-1000. 
Jurisdiction  of  court-martial  after  discharge  of  accused 

from  service,  KWO. 
Period  during  which  accused  was  in  custody  of  civil 

authorities,  1059. 
Suits  on  bonds  of  delinquent  oflRcers,  1199. 
Waiver  of;  decisions  relating  to,  1057,  1058,  1062. 
STKAM  BOILERS: 

Purchase  of,  for  Navy,  1182,  1183. 
STEAM  ENGINEERING: 

See  liurcaus;  Chiefs  of  bureaus.' 
Name  of  bureau  changed  to  Engineering,  1.548. 
STE.4M  ENGINES: 

Estimates  and  appropriations  for  repairs  and  attend- 
ance, navy  j'ards,  1103. 
STEAM  VESSELS: 

llcgulationof,  1135, 1136. 
STEEL: 

Domestic  manufacture  to  be  used  in  naval  vessels,  1195. 
STEERAGE  OFFICERS: 

Definition  of,  704. 
STEPCHILDREN: 

Citizenship  of,  139. 
STOLEN   GOODS: 

Punishment  for  receiving,  etc.,  1350, 1351. 
STONE: 

Use  of  by  Navy,  from  national  forests,  1409. 
STOREKEEPERS : 

Appointment  and  number  of,  531. 
Ci^^lians;  foreign  stations,  533. 
required  to  give  bond,  533. 
Clerks  of.  Secretary  of  the  Navy  may  abolish  offices,  533. 
Estimates  and  appropriations  for  expenses  of,  Navy, 

1103. 
Foreign  stations;  naval  officers  detailed  for  duty  as,  .579. 

naval  officers  to  give  bond,  579. 
Naval  Academy,  770,  771. 

property  returns  to  be  rendered  by,  1304. 
Pay  of,  on  foreign  stations,  846,  847. 
Rating  established  in  the  artificer  branch,  1423. 
STORES: 

See  Contracts:  Public  property. 

Annual  report   of,  used  in  construction,  repair  and 

equipment  of  vessels,  381. 
Dealing  in,  for  private  benefit;  punishment.  Navy,  989. 
Foreign  squadrons;  care  of,  579. 
Foreign    stations;    estimates  and   appropriations  for 

transportation.  Navy,  1103. 
Marine  Corps;  sale  to  naval  and  civilian  personnel, 

1391, 1464. 
Medical;  distilled  spirits  on  naval  vessels,  989. 

procurement  of,  for  fleets  and  squadrons,  466. 
Midshipmen's;  profits  are  public  money,  232. 
Misappropriation  of;  punishment,  1325. 
Naval  Supply  Account  to  govern  purchase  and  issue 

of,  etc.,  1366,  1367. 
Naval  vessels;  inspection  and  preservation  of  provi- 
sions, 995. 
Navy  and  Marine  Corps;  sale  to  Coast    Guard  and 
Public  Health  Service  personnel,  1533. 
.sale  to  discharged  persons  under  Public  Health 
treatment,  1554. 
Procurement  of,  by  one  department  or  bureau  for 
another;  transfer  of  appropriations,  1409,  1.536. 
general  provisions  relating  to,  352,  353,  354. 
Profit  on  sales  from  ships'  stores,  1359. 
Purchase  of.  Navy,  contrary  to  law,  1324, 1325. 

of  Navy,  from  small  stores  fimd,  1184. 
Purchase,  preservation   and   disposition   of;   regula- 
tions governing,  787,  78S. 


STORES— Continued . 

Sale  of.  Army,  Navy  and  Marine  Corps,  1465. 

to  naval  personnel  and  others,  53:<,  1313,  1314, 1391, 
1404,  1533,  1554. 
Subsistence;  unlawfully  selling,  stealing,  etc.,  990. 
Unauthorized  sale  of;  punishment,  1325. 
Value  of ,  charged  to  naval  supply  account  fimd:  issues 
or  sales  credited  to,  15.57. 
STRAGGLERS: 
Arrest  of,  118. 
STRICTISSIMI  JURIS: 

Sureties  on  bonds;  liability  of,  491. 
STRIKING: 

Flag  to  enemy,  punishment  for,  in  Navy,  980. 
Other  persons  in  Navy,  9S4. 
Superior  officer;  punishment  for.  Navy,  970. 
STUDENTS: 

Afforded  facilities  for  study  and  research  in  executive 
departments,  etc.,  1275. 
SUB3IARINES: 

Enlisted  men,  additional  pay  for  service  on,  865,  86(). 
SUBORDINATES: 

Maltreatment  or  oppression  of;  punishment,  984, 1351. 
SUBORDINATION: 

Commanding  officers  to  show  example  of,  97s,  979. 
SUBORNATION  OF  PERJURY: 

Naval  courts-martial;  prosecutions,  431. 
Punishment,  1335. 
SUBPOENAS: 

See^ccMSfd;  Courts-martial;  Process:  Witvcsscs. 
Accused  entitled  to  process  for  obtaining  witnesses, 

129,  132,  r.iZ. 
Application  lor,  in  departmental  cases;  form  of,  219, 220. 
Commission  to  take  testimony,  requiring  production 

of  records,  423. 
Form  of,  425. 

Heads  of  departments;  assistants  subpoenaed  to  testify 
before  commission,  422. 
whether  required  to  obey,  79,  348,  424. 
Member  of  Congress  subject  to,  33. 
President  not  required  to  obey,  77. 
Witnesses  required  to  appear  before  departments  in 
pending  claims,  219. 
I  to  make  depositions  for  use  in  Federal  courts,  421. 

SUBSCRIPTIONS: 

Newspapers  and  periodicals;  payments  in  advance, 
1401,  1408,  1409. 
SUBSISTENCE: 

See  Contracts:  Public  property;  Rations;  Stores. 

Absent  from  vessel,  891,  896. 

EnUsted  men,  896,  897,  954. 

Naval  officers  detailed  to  coast  and  Geodetic  Survey, 

1151, 1215. 
Purchase  of,  in  excess  otappropriations,  1116, 12SS. 
Travel  outside  District  of  Columbia,  1394,  i:59S,  1399. 
SUFFRAGE: 

Naval  personnel's  right  to  vote  not  restricted  by  crimi- 
nal code,  1321. 
SUICIDE: 

Line  of  duty,  questions  relating  to,  612,  614, 615. 

SUITS: 

See  Bonds;  Contracts;  Court  of  Claims;  Damages;  Dis- 

bursir}g  officers. 
Public  moneys  withheld;  recovery  of,  1097, 1098. 
SUMMARY  COURTS: 

Precedence  of  line  and  staff  officers  on,  704. 
SUMMARY  COURTS-MARTIAL: 

See  Courts-martial. 
SUMMER  SCHOOLS: 

Secretary  of  the  Navy  may  establish  for  boys:  enroU- 
ment  in  Naval  Reserve  Force,  1546. 


1692 


INDEX. 


SUXBATS: 

Closing  of  departments  on,  201. 

Divine  services  to  be  conducted  on  vessels  and  at  naval 

stations,  979. 
Excluded  from  leave  of  absence,  employees  in  depart- 
ments, 1263. 
General  court-martial  not  required  to  sit  on,  1029. 
Holidays  falling  on,  782. 

Hours  of  labor,  law  not  applicable  to,  1220,  1221. 
Midshipmen  not  to  pursue  studies  on,  770. 
SUPERINTEXDEXT: 
See  Naval  Academy. 

Naval  Academy;  duties  respecting  dismissal  of  mid- 
shipmen, 1286. 
pay,  815,  1177. 

removal  of,  for  neglecting  instructions  to  midship- 
men, 1195. 
rules  to  prevent  hazing,  1281. 
Naval  Observatory;  allowed  shore  duty  pay  of  his 
grade,  390. 
line  officer:  rank,  1276, 1277. 
Nurse  Corps,  female,  1303. 
Rope  walks,  at  na\'y  yards,  779-780. 
SUPEUIXTEXDEXT  OF  DOCU3IEXTS: 

SeePrinling  and  binding. 
SUPERIOR  OFFICER: 

See  A  Hides  for  the  Government  of  the  Navy;  Contribu- 
tions; Presents. 
Definition  of,  980,  986, 1073. 

Petty  officers  entitled  to  obedience  from  inferiors,  52.5. 
Senior  in  rank  construed,  930. 
SUPERVISORY  BO.^RDS: 

Examinations  for  promotion,  724. 
SUPPLIES: 

See    Contracts;   Hospital  supplies;    Medical  supplies; 

Naval  supply  account;  Public  property;  Stores. 
Accumulation  of,  beyond  needs  of  current  year,  387, 

1113,  1473.  1482. 
Appropriations  transferred  for  expenditure  by  bureau 

or  department  procuring,  1409,  15.36. 
Army;  furnished  naval  and  marine  detachments,  433. 
Dealing  in,  for  private  benefit;  punishment,  989. 
Executive  departments,  procurement  of,  1358. 
General  supply  committee;  duties,  etc.,  1358. 
Interchange  of,  between  departments;  payment  for 

1409,  1.526,  1528,  1536. 
Medical  stores,  procurement  of,  466. 
Naval;  purchase  and  issue  of,  1216. 
Naval  supply  account  to  govern  purchase  and  issue  of 

stores,  etc.,  1366,  1367. 
Naval  vessels;  inspection  and  preservation  of  provis- 
ions for,  995. 
Navy;  accounts  kept,  reports  to  Congress;  transfer  be- 
tween bureaus,  etc.,  1203. 
aimual  report  of  proposals  and  contracts,  381. 
transportation  in  American  vessels,  128:5. 
Procurement  of,  in  time  of  war,  1113,  1413,  1475,  1476. 
Purchase  of,  in  excess  of  needs  for  current  year,  387, 

1113, 1473,  1482. 
Purchase,  preser\'ation  and  disposition  of;  regulations 

governing,  787,  788. 
Regulations  governing;  President  to  make,  787,  788. 
Sale  of  Army,  Navy  and  Marine  Corps  subsistence, 
1465. 
Navy  and  Marine  Corps,  to  Coast  Guard  personnel, 

1533. 
i^&vy  and  Marine  Corps  to  Public  Health  Ser\'ice 

personnel,  1533. 
subsistence  stores  to  naval  personnel  and  others, 
5.33,  1313,  1314,  1391,  1464,  1.5:J3,  1554. 
Transfer  of,  between  Army  and  Navy,  1528. 


SUPPLIES  AND  ACCOUNTS: 

See  Bureaus;  Chiefs  of  bureaus;  Paymaster  general. 
Name  of  bureau  changed  to,  1218. 
SUPPLY  ACCOUNT: 

See  Naval  supply  account. 
SUPPLY  CORPS: 

See  Accounts;  Accounting  officers;  Bonds;  Disbursing 
officers;  Officers  of  the  Navy;  Public  moneys;  Staff 
officers. 
Accounts  of  officers  rendered  direct  to  accounting 
officers,  1097. 
unchanged  for  three  years,  279. 
Acting  pajTnasters;  appointment,  472. 
Advancement  in  rank,  1426,  1513. 
Advances  of  public  money  by;  order  of  commanding 

officer,  498. 
Appointments  in,  469. 

of  assistant  paymasters  from  pay  clerks  and  chief 

pay  clerks,  1407. 
of  officer  as  chief  of  bureau,  379. 
quaUflcations  for  assistant  paymasters,  470. 
Assignment  of  wages  attested  by  officer  of,  892. 
Bonds,  474-496. 

amount  of;  may  be  increased  by  President,  1098. 
effect  of  new  appointment,  496. 
not  affected  by  new  commissions,  681. 
renewal  of,  496. 
Checks  outstanding  more  than  three  years,  276-278. 
Clerks  allowed  officers  of,  496,  497. 

not  part  of,  470. 
Command;  relative  rank  not  to  conf  e  r  right  of,  702, 1265 
Defined;  only  commissioned  officers  included,  470. 
Delinquent  officers;  proceedings  against,  427,  428. 
Disbursing  officer  on  foreign  station,  appointment  of, 

788. 
Distribution  of  officers  in  grades,  1427. 
Duties  of,  468. 

disbursing  officers,  1098. 
regulations  prescribing,  786. 
Examinations  for  promotion,  471, 1473, 1481, 1482. 
Fleet  pajTuaster:  appointment  of,  474. 
Generalinspectorof;  duties,  1304. 
General  provisions  relating  to,  466-498. 
Loans  by  officers  of,  prohibited,  497. 
Name  changed  from  Pay  Corps  to,  1530. 
Naval  Academy;  storekeeper  detailed  from,  770. 
Number  of  officers  authorized,  466,  467, 1425. 
Officers;  cjommanding  officer  not  required  to  perform 

duties  of,  574. 
Officers'  records  lost  with  vessels  sunk  or  captured, 
268. 
relieved  from  responsibility  by  Secretary  of  the 

Navy,  1527, 1528. 
responsibility;  insurer  of  funds,  487. 

relieved  from,  488, 1362, 1363, 1527, 1528. 
Organization  of,  466. 
Pay  Corps  changed  to,  1530. 

Paymaster,  passed  assistant  paymaster  or  assistant 
paymaster,  defined,  497. 
defined;  means  officer  of  Supply  Corps,  380,  471. 
Promotions,  471, 1426, 1473, 1481, 1482, 1513. 

-  effect  on  bond,  496. 
Rank  of  officers  in,  676-677, 1427. 

rear  admiral  authorized  in,  676,  677. 
Report  of  checks  outstanding  more  than  three  years, 

279. 
Responsibility  of  officers;  disbursement  by  order  of 
superior,  266. 
vessels  wrecked  or  captured,  266. 
SUPRE.>IE  COURT: 

Appeals  to,  from  Court  of  Claims,  1365. 

Attorney  General  and  subordinates  to  argue  cases,  322. 


1693 


INDEX. 


SUPREME  COUKT— Continued. 

Department  of  Justice  to  conduct  proceedings  in,  323. 

Reports  and  digests:  distribution  of,  1365. 
SURETIES: 

See  Bondf. 
Bonds,  4S4-4S6. 

inarrie<l  women,  4S4,  485. 
of  officers,  Supplj'  Corps,  474. 
Companies  acting  as,  485,  486. 
Discharge  of,  494,  495. 
Liability  of,  491-495. 
President  not  authorized  to  release,  495. 
Responsibility  of:  new  bonds  given,  493,  494. 
SURETY  C03IPAN1ES! 
See  Bonds. 

Bonds;  provisions  relating  to,  1228-1230. 
SURGEON  GENERAL: 

See  Bureaus;  Chiefs  of  bureaus;  Medical  Corps;  Staff 

officers. 
Appointment  of,  380. 
Appointments  and  removals  in  Nurse  Corps,  female, 

made  by,  1303, 1304. 
Duties  of  female  nurses  prescribed  by,  1303, 1304. 
Navy:  member  of  Interdepartmental  Social  Hygiene 
Board,  1517. 
service  on  board  for  licensing  sale  of  viruses,  etc., 

1279, 1280. 
to  detail  officer  on  advisory  board,  PubUc  Health 
Senice,  1279. 
Title  of;  Chief  of  Bureau  of  Medicine  and  Surgery,  670, 
671. 
SURGEON  OF  THE  FLEET: 
Appointment  of,  466. 
Duties  of,  466. 
Pay,  792,  801. 
SURGEONS: 

See  Assistant  surgeons;  Medical  Corps; Passed  assistant 

surgeons;  Staff  officers. 
Board  of;  examinations  for  promotion,  707-710. 
Defined:  means  medical  officers,  463,  466. 
Detailed  as  assistant  to  Bureau  of  Medicine  and  Sur- 
gery, 466. 
to  Red  Cross;  number  increased  by  one,  14.36. 
Duties  relating  to  health  of  crew,  995. 
Number  of,  increased,  1416. 
Passed  assistant  surgeons  promoted  to,  1251. 
Pay,  792,  801. 
Rank  of,  673. 
SURGICAL  OPERATIONS: 

A\Tiether  naval  personnel  required  to  undergo,  458,  459, 
615,  616. 
SURVEY: 

Boards  of:  precedence  of  line  and  stafl  members,  704. 
Coast  of  United  States;  employment  of  naval  officers 

and  vessels,  1151. 
Foreign  hydrographic;  restrictions  on  preparation  and 

publication  of,  1106,  1237. 
Medical;  transportation  of  enlisted  men  discharged 
on,  875,  1274,  1275. 
SUSPENSION: 

Bonded  officer;  effect  of,  492. 
Chief  of  bureau,  does  not  create  vacancy,  215. 
Commanding  officer  may  inflict  as  punishment,  1002. 
Continuing  punishment:  remission  of,  669,  1052. 
Disbursing  officers  making  unauthorized  exchange  of 

public  funds,  1100. 
Employees,  civil  establishment,  340,  783. 
Failure  to  qualify  for  promotion,  729-734. 

loss  of  numbers  in  lieu  of,  Marine  Corps,  1463. 
Midshipmen,  755. 

court-martial  sentence;  confirmation  by  President, 
124S. 


SUSPENSION— Continued. 

Midshipmen,  without  pay;  not  entitled  to  allowances, 

828. 
Naval  officer  traveling  under;  expenses,  84:5. 
Pay  of  officer;  by  sentence  of  court-martial,  1033. 
Plea  of,  in  bar  of  trial,  119. 
Precedence  of  ofl^icer  under,  608,  669. 
Proceedings  of  general  court-martial  not  to  be  sus- 
pended, 1029.  % 
Status  of  officer;  not  on  sea  duty,  880. 
Substituted  for  dismissal,  1053. 
Undesirable  sentence,  583,  584. 
SWORD: 

Officer  to  deliver  up,  when  arrested,  1029. 
TAILORS: 

Enlisted  men,  additional  pay  as  ships'  tailors,  866. 
TARGET  PRACTICE: 

Regulations  to  protect  navigation,  1519. 
Rifle  ranges  open  to  naval  personnel,  1413. 
Sale  of  gims  and  ammunition  to  societies  for  encour- 
agement of,  1516. 
TATTOOING: 

Prohibited  as  a  punishment  in  the  Navy,  1034. 
TAXATION: 

Income  tax  returns,  executed  before  naval  officers,  218. 
PoU  taxes,  persons  in  Navy,  48. 
State  interference  with  Federal  instrumentalities,  48. 
Tonnage  tax  on  vessel  carrying  coal  for  Navy,  140S. 
TE  A:\IS: 

Estimates  and  appropriations  for  purchase  and  main- 
tenance of.  Navy,  1103. 
TECHNHCALITIES: 

Charges  and  specifications:  form  of,  1027. 
TELEGRA3IS: 

Appropriations  for,  not  available  to  influence  legisla- 
tion, 1527. 
TELEPHONES: 

Not  to  be  used  to  influence  legislation,  1527. 
Restriction  on  installation  and  use  of,  1384. 
TEMPER.V3IENTAL: 

Unfitness  for  duty,  retirement,  599. 
TEMPORARY: 

See  Absence;  Acting  officers;  Appointments. 
Absence;  allowance  for  quarters,  701 
from  ship;  pay,  882,  883. 

Secretary  of  the  Navy  and  Assistant  Secretary  of 
the  Navy,  1401. 
Appointments,  99. 

acting  paymasters,  472. 

bonds,  4S3. 

Executive  departments,  no  extra  compensation, 

217. 
limitation  on,  vacancies  in  department  caused 

by  death  or  resignation,  216. 
President  making,  without  consent  of  Senate:  ac- 
counting officers  notified,  1072. 
statutory  requirements  not  applicable  to,  462. 
Building:  held  not  to  be  a  "public  building"  286. 
Clerks;  compensation  of,  205. 

employment  during  sessions  of  Congress,  208. 
Commission:  precedence  under,  669. 
Details:  civil  employees,  within  department,  203. 
Employees;  witnesses  in  court;  fees  allowed,  414. 
Officers;  acting  assistant  surgeons,  527,  528,  1261. 
death  gratuity  law  not  applicable  to,  1547. 
Marine  Corps;  transferred  to  permanent  service, 

1548. 
retirement  for  physical  disability,  1549. 
status  of,  525. 

transfer  to  permanent  Navy,  1549,  1550. 
Promotions;  general  law  not  applicable  to,  721. 
termination  of,  under  act  of  July  1,  1918-  1515. 


1694 


INDEX. 


TEMPORARY— Continued. 

Vacancy;  chief  of  bureau,  how  filled,  213,  214. 
head  of  department,  how  filled,  212,  214. 
Major  General  Commandant,  Marine  Corps;  fill- 
ing of,  929. 
TENTS: 

Held  to  constitute  public  quarters,  698. 
TERM. 

See  Enlistments. 
TERRITORIES: 

Acquisition  of,  war  power,  40. 

Citizenship  in,  113. 

Constitution,  appUcability  to,  112. 

Crimes  committed  in,  1348-1351,  1.3.53, 1.354. 

Decisions  relating  to  powers  of  Congress  over,  108. 

Government  of  conquered,  41. 

Guam  and  Tutuila,  status  of,  109,  110. 

Hawaiian  Islands;  status  of,  1075. 

Laws  and  records;  evidence  in  courts,  429,  430. 

Military  government  of,  109. 

Naval  personnel  not  to  hold  civil  office  in,  1075. 

Organized  and  unorganized,  113. 

Porto  Rico  held  to  be,  1075. 

Secretary  of  the  Interior,  jurisdiction  over,  395. 

Virgin  Islands  not  organized,  1075. 

Voting  in,  by  naval  personnel;  restrictions,  1075. 

TESTIMONIAL: 

Of  fideUty  and  obedience;  honorable  discharge  is,  573. 
TESTIMONY: 

See  Evidence;  Self -crimination. 

Degrading,  protection  of  witness,  123. 

Summary  courts-martial;  to  be  given  oraUy  before, 
1006. 
THANKS  OF  CONGRESS: 

Effect  of,  736,  737. 

Marine  officer,  advancement  for  receiving,  933. 

Memorial  to  officers  receiving,  1314, 1315. 

Officer  advanced  to  rear  admiral,  if  receiving,  454. 

Ofiicers  who  received,  during  Civil  War,  594. 

Promotion  of  officer  receiving,  736. 

Retired  officer  receiving,  restored  to  active  list,  660. 
THEATERS: 

Discrimination    against   uniform    of   Navy,    Marine 
Corps,  etc.,  1360. 
THEFT: 

See  Larceny. 

Punishable  by  naval  court-martial,  984. 
THREATS: 

See  Articles  for  the  Government  of  the  Navy. 

Against  President;  punishment,  1469. 

Threatening  matter  on  wrapper  of  mail,  etc.,  1311. 
TIDE  TABLES: 

Publication  of,  by  Hydrographic  Office;  number  of 
copies,  1238. 
TIMBER: 

Clearance  of  vessels  laden  with;  cut  from  public  lauds, 
1125. 

Condemnation  of,  standing  or  fallen,  1518. 

National  forests;  use  of  by  Navy,  1409. 

Public  lands,  reserved  for  naval  use,  10S7-1089. 

Wheels;  estimates  and  appropriations  for,  Navy,  1103. 
TIME  OF  PEACE: 

Construction  of,  1010, 1011. 
TIRES: 

Exchange  of,  in  part  payment  for  like  articles,  1474. 
TITLES: 

Appropriation  acts,  how  entitled,  187. 

Chief  of  Naval  Operations,  1418. 

Chiefs  of  bureaus,  369,  370,  670,  671. 
after  retirement,  376,  672. 
returning  to  general  service,  672. 


TITLES— Continued. 

Civil  employees  traveling  to  points  outside  the  District 

of  Columbia,  1305. 
Coast  Guard  officers,  705,  1553. 
Documents  and  reports  ordered  printed  by  Congress, 

1300. 
Expense  of  securing  abstract,  294. 
Flag  officer;  construed  as  rear  admiral,  576,  577. 
Lands  purchased  by  United  States,  282. 
Master  changed  to  lieutenant,  junior  grade,  1190. 
Midshipman  changed  to  ensign,  junior  grade,  1190. 
Naval  cadet  changed  to  midsliipman,  1279. 
OflBcers;  assigned  to  duty  with  rank  and  title  of  rear 
admiral,  577. 
decisions  relating  to,  671. 

title,  grade,  rank  and  office  defined  and  distin- 
guished, 449,  450. 
Pay  clerk,  substituted  for  clerk  to  assistant  paymaster, 

Marine  Corps,  1515. 
Paymaster's  clerk  changed  to  pay  clerk,  Navy,  1406. 
Staff  officers,  683. 

commissions  to  contain,  680. 
not  changed  by  rank  conferred  on,  1265. 
Students  at  Naval  Academy,  739. 
Warrant  machinist  changed  to  machinist,  1314. 
Warrant  officers,  512. 
TOBACCO: 

Contracts  may  be  made  for  four-year  periods,  1113. 
Purchase  of,  after  advertising  and  examination   of 

samples,  1250. 
Piu'chase  without  advertising,  1113. 
TOLL: 

State  charges  for  use  of  wharves,  50. 
TON: 

Coal  for  public  service  to  weigh  2,240  pounds,  1110. 
TONNAGE  TAX: 

Vessels  transporting  coal  for  Navy,  1408. 
TOOLS: 

Estimates  and  appropriations  for  purchase  and  repair 
of,  Navy,  1103. 
TORTS: 

Claims  for,  against  Government,  79,  235,  13.59. 
TOTAL  AUTHORIZED  ENLISTED   STRENGTH: 

Definition  of,  537. 
TOWAGE: 

Estimates  and  appropriations  for.  Navy,  1103. 
TRADE: 

Dealing  in  supplies  for  private  benefit  on  naval  vessels 

or  at  yards  or  stations,  989. 
Detail  of  naval  officers  to  foreign  countries  in  interest 
of,  576. 
TRADE  SCHOOLS: 

EnUsted  men  under  instruction;  additional  to  au- 
thorized strength.  Navy,  1478. 
TRADING: 

Disbursing  officers,  etc.;  in  funds  or  property.  Federal 
or  State,  1332. 
TRAINING  CAMPS: 
Marine  Corps,  1464. 
TRANSFER: 

See  A  ppropriations;  Civil  establishment;  Details;  Public 

property. 
Contracts  with  Goverimient;  prohibited,  1117. 
Employees  between    bureaus;    explanation    in    esti- 
mates, 1290. 
between  departments  and  independent  establish- 
ments, 1290,  1491. 
Enlisted  men,  from  Army  toNa^'y  or  Marine  Corps,  555. 

to  and  from  Hospital  Corps,  5.55,  5()7, 1420. 
Public  moneys  contrary  to  law;  punishment  for,  1329. 
TRANSPORTATION: 
See  Mileage;  Travel. 


1695 


IXDEX. 


Tka.VSPORTATIOX— Continued. 

Alaskan  railroads:  coal  for  Navy,  troops,  etc.,  1393, 1394. 
Approjiriation  chargeable  with,  discharged  enlisted 

men,  1274,  1275. 
Army,  furnished  naval  and  marine  detachments,  433. 
transports  available  for  naval  personnel  and  sup- 
plies, 129S. 
Contracts  in  excess  of  appropriations,  1116, 1288. 
Di.sabled  persons  entitled  to,  when  obtaining  artificial 

lirabs,  11.57. 
Discharged  enlisted  men,  874-876, 1415. 

medical  sur\-ey  and  expiration  of  enlistment,  1274, 
1275. 
Enlisted  men  whose  enlistments  expire  abroad,  555. 
Estimates  and  appropriations  for,  Navy,  1102. 
Explosives,  1345,  1346. 

Families  of  officers  and  enlisted  men  on  permanent 
change  of  station,  1535, 1.530. 
of  officers,  enlisted  men  and  employees;  transports 
used  for,  1298,  1536. 
Foreign  vessels;  charges  by  American  vessels  excessive, 

1408. 
Fuel,  1407,  1408. 

purchase  of  vessels  for,  1515. 

when  chargas  are  excessive,  1482. 
Furlough  certificates,  disabled  soldiers,  sailors  and 

marines  under  treatment,  1554. 
Government;  mileage  not  allowed,  843, 1395. 

transport  to  be  used  ifavailable;  families  of  officers, 
1298,  1536. 
Hauling  in  District  of  Columbia  for  departments,  by 

Secretary  of  the  Interior,  1553. 
Household  effects,  naval  personnel,  1535, 1536. 
Land-grant  railroads,  1179, 1180. 
Marine  Corps,  949. 
Obscene  books,  etc.,  1347. 
Payment  for  tickets  in  advance  of  travel,  1282. 
Prisoners,  on  discharge,  1313. 
Private  property  on  naval  vessel,  985,  986. 
Provisions  and  stores.  Navy;  estimates  and  appropria- 
tions for  foreign  stations,  1103. 
Supplies:  advertising  for  proposals,  1111. 

vessels  of  United  States  to  be  used  unless  charges 
excessive,  1283. 
Tonnage  tax  on  vessels  carrying  coal  for  Navy,  1408. 
Troops  and  war  material,  1198,  1465. 
Waiver  of;  enlisted  man  discharged  abroad,  561. 
TRANSPORTS: 

Army,  available  for  naval  personnel  and  supplies, 
1298. 
inspection  by  naval  officers,  578. 
naval  constructor  detailed  to  duty  with,  507. 
Oovemment  transport  to  be  used  ifavailable,  by  fami- 
lies of  officers,  1536. 
TRAVEL: 

See  yfiUage;  TransportcUion. 

-Vbroad;  actual  expenses;  shortest  route;  Secretary's 

approval,  1189,  1272-1274. 
Accounts  approved  by  Secretary  of  the  Navy,  237,  238, 
1179,  1189. 
oaths  administered  to,  1386. 
Active  ser^-ice  in  Fleet  Naval  Reserve,  1449. 
Actual  expenses:  naval  officers,  842,  843,  1189,  1272- 

1274,  1278. 
.\ttach^  to  diplomatic  officer,  828. 
.\ttending  conventions  and  meetings  of  societies  or 
associations,  1-371. 
funeral  of  officer,  9ft5,  906. 
Baggage  transportation;  mileage  allowed  naval  officers 

in  lieu  of ,  1272,  127.3,  1274. 
Board  of  Visitors,  Naval  Academy,  1458. 


TRAVEL-Continued. 

Civil  emplo5'ees,  insular  possessions;    to  and   from 
United  States,  782, 1278. 
per  diem  in  lieu  of  subsistence,  1398, 1399. 
to  points  outside  District  of  Columbia,  1394. 

outside  District  of  Columbia;  report  to  Con- 
gress, 1305. 
Discharged  officers,  -Vrmy,  943. 
Enlisted  men  on  discharge,  874-876, 1415. 
on  discharge  in  debt  to  Government,  876. 
on  discharge;  reenlisting  in  different  branch,  1551, 

1552. 
on  extension  of  enlistment,  872, 1551, 1552. 
on  transfer  to  Fleet  Naval  Reserve,  871. 
General  pro\-isions  relating  to  expenses,  840-846. 
Land-grant  railroads,  1179,  1180. 
Leave  of  absence;  naval  officer,  843,  844. 
Lighthouse  Establishment,  naval  officers  detailed  to, 

1298. 
Marine  Corps,  943,  949. 

Mileage  books,  commutation  tickets,  etc.,  paid  for  in 
advance  of,  1282. 
not  allowed  where  Government  transportation  fur- 
nished, 843, 1395. 
Naval  officer  under  suspension;  expenses,  843. 
Naval  Reserve  Force,  allowance,  813,  814. 

allowance  in  Fleet  Naval  Reserve,  1449. 
Nurse  Corps,  female,  allowance,  807. 
Officers  and  others,  under  orders:  estimates  and  appro- 
priations for,  Na^-y,  1103. 
Orders  required  before  expenses  allowed,  845, 1179. 
Outside  United  States;  actual  expenses  allowed,  1189, 

1272-1274. 
Passports;  Government  officers  and  employees,  1543. 
Repeated;  actual  expenses  allowed  naval  officers  for, 

842,  843,  1272-1274,  1278. 
Shortest  usually  traveled  route;  Secretary  of  the  Navy 

to  determine,  1315. 
Without  troops,  under  orders;  mileage  allowed,  1251. 
Witness  before  grand  jury,  naval  officer,  843. 
in  Government  service,  413. 
TREASON: 

Decisions  relating  to,  106. 

Definition  and  punishment,  106, 107,  1316,  1317. 
Mail  matter  advocating,  14S9,  1490. 
Misprision  of;  definition  and  punishment,  1317. 
TREASURER: 

United  States;  general  provisions  relating  to,  275-279. 
TREASURY: 

Location  of,  275. 
TREASURY  DEPARTMENT: 
See  Accounting  officers;  Accounts. 
Claims  settled  by,  229. 
General  pro^'isions  relating  to,  229-279. 
Regulations,  259,  1098. 

Transcript  of  records  for  use  in  court,  427,  428. 
TREATIES: 

Estimates  of  appropriations  to  contain  reference  to, 
1101. 
TREAT]»IENT: 

See  Medical  treatment. 
TRIAL,: 

See  Accused;  Courts-martial;  Jeopardy;  New  trial. 
Examination  for  promotion  is  not,  629. 
Impartial,  right  of  accused,  129,  131. 
Interrupted  before  completion,  121. 
Officer  may  demand  after  dismissal,  1012. 
Proceedings  of  court  of  inquiry  are  not,  1055. 
Public,  right  of  accused  to,  129, 130. 
Speedy,  right  of  accused  to,  129, 130. 
Two  trials  for  same  offense,  119. 


1696 


INDEX. 


TRIAL  TKIP: 

Naval  vessel;  officer  uot  entitled  to  mileage  for  travel 
on,  844. 
ownership  before  acceptance,  773. 
TROOPS: 

Definition  of,  1179,  1180. 
Duty  without;  definition  of,  702. 
Travel  without,  mileage  allowed ,  12.51. 
TROPHY: 

Naval  personnel  may  contest  for  National  Trophy, 
1413. 
TRUSSES: 

AppUcation  for,  434. 
Purchase  of,  4^34. 
To  whom  furnished,  434,  1185. 
TRUST: 

Corrupting  person  in  Navy  to  betray,  981. 
Deserting  or  betrajdng  in  time  of  war  or  aiding  or  en- 
ticing others  to,  979. 
TRUST  FUND: 

Checks  outstanding  more  than  three  years;  liabiUty 
of  Government,  277. 
TUTUILA: 

Governor  commissioned  by  President,  102. 
Military  government  of,  109. 
TYPEWRITERS: 

Exchange  of,  in  part  payment  for  new  ones,  1409, 1410. 
Repaired  by  General  Supply  Committee;  payment  for, 

1557. 
Sale  or  exchange  restricted,  1543,  1551. 
Sale  to  departments  at  exchange  prices  by  General 
Supply  Committee,  15.57. 
TYPEWRITING: 

Writing  includes,  in  construing  Criminal  Code,  1355. 
TYPHOID  PROPHYLACTIC: 

Injections;  naval  personnel  must  .submit  to,  458. 
UNDESIRABLE: 

Discharge,  enUsted  men;  refund  of  enlistment  bounty, 
1292,  1294,  1298. 
UNIFORM: 

Badges  of  military  societies  worn  by  naval  personnel, 

1216, 1224, 1273,  1280,  1299. 
Discrimination  against,  Army,  Navy,  Marine  Corps, 

etc.,  1360. 
Enhsted  men;  clothing  outfit  furnished,  876,  877, 1203, 
1403. 
clothing  outfit  refimded  on  discharge,  1292,  1294, 
1298. 
Fleet  Naval  Reserve;  outfit  required,  1451. 
Foreign  decorations;  pubUc  wearing  of,  forbidden,  1187. 
medals  and  decorations  may  be  worn  by  Ameri- 
can citizens,  1516. 
Intoxicants  not  to  be  sold  to  military  forces  wearing, 

1477, 1478. 
Machinists',  prescribed  by  Navy  Department,  1269. 
Naval  Reserve   Force;  amount   credited;  refund   on 
discharge,  812,  813, 1444,  1447, 1510. 
may  wear  while  not  in  active  service,  1511. 
Retention   of,   after   discharge  from    Navy,    Marine 

Corps,  etc.,  1.524. 
Retired  oflScers  of  the  Navy,  031. 
Sale  at  cost  to  citizens  at  training  camps.  Marine  Corps, 
1464. 
to  marine  officers,  1,531. 
to  naval  officers  and  midshipmen,  1521. 
Sale  or  exchange  of,  etc.,  proliibited,  1121. 
Unauthorized  wearmg  of,  1414,  1415,  1515,  1516,  1552. 
foreign,  1515,  1516. 
decorations,  1515. 
Wearing  of,  after  discharge  from  Nav5',  Marine  Corps, 
etc.,  1414,  1415, 1524. 


UNITED  STATES: 

Absence  from;  statute  of  Limitations,  luoo. 
Continental  limits;  shore  duty  beyond,  1275. 
Defined,  1.505. 

to  include  Porto  Rico,  438. 
under  espionage  act,  1490. 
Officers  of,  defined,  89. 
Philippine  Islands  held  not  included,  1015. 
Port  in  Guam  is  not  port  of  United  States,  112. 
Waters  of,  construed,  1015. 
UNITED  STATES   ATTORNEYS: 

See  Attorney  General;  Department  of  Justice;  District 
attorneys. 
UNITED  STATES  NOTES: 

Disbursements  to  be  made  in,  1100. 
UNITED   STATES   SHIPPING   BOARD: 

See  Shipping  Board. 
UNITED  STATES  TREASURY: 

Location  of,  275. 
UNIVERSAL  POSTAL  CONVENTION: 
Use  of  penalty  envelopes  authorized,  229. 
UNIVERSITIES: 

Detail  of  naval  officers  to,  4.35. 
UNLIQUIDATED  DAMAGES: 

Accounting  officers'  jurisdiction,  234. 
UNREASONABLE  SEARCH  AND  SEIZURE: 

Protection  against,  117. 
UNUSUAL  PUNISIOIENTS: 

Decisions  relating  to,  134. 
USAGES: 

Regulations  include,  1%,  885. 
USELESS  PAPERS: 

Disposal  of,  by  executive  departments,  1202, 1203. 
in  buildings  under  control  of  departments,  1248. 
navy  yards  and  stations,  1401. 
on  naval  vessels,  1381. 
VACANCIES: 

Accepting  incompatible  offices  creates,  215. 
Additional  number  officers  causing:  not  to  be  filled, 

1275, 1276. 
Chiefs  of  bureaus;  retirement  creates,  672. 
Chiefs  of  bureaus;  retirement  does  not  create,  376. 
Created  by  operation  of  law;  naval  officers  accepting 

civil  offices,  580. 
Date  of;  advancement  of  officers  for  heroism,  734. 
caused  by  retirement,  649,  1431. 
commencement  of  pay  on  promotion,  naval  offi- 
cers, 832,  1178,  1390. 
Definition  of,  048,  832. 

Designations  by  President  to  perform  duties  of;  ac- 
counting officers  notified,  1072. 
FiUing  of,  after  change  in  law,  648. 
Midshipmen  can  not  be  commissioned  except  to  fill, 
767,  768. 
insufficient  to  fill,  767. 
Necessary  prior  to  promotion,  453. 
Promotion  to,  according  to  seniority,  646,  680. 
Rank  from  date  of,  on  promotion,  649-651,  931, 1459. 
Recess    appointments;  no    salary    if   existed    while 

Senate  in  session,  1066. 
Recess  of  the  Senate;  decisions  relating  to,  99-100. 

temporary-  appointments  in  departments,  216, 217. 
Retirement  of  line  officers  for  purpose  of  creating,  1265. 
Supply  Corps;  acting  appointments,  472. 
Suspension  of  officers  in  department  does  not  create, 

215. 
Temporary  absence  does  not  create,  473. 
Temporary;  chiefs  of  bureaus,  how  filled,  213,  214. 
executive    departments;  limitation   on   appoint- 
ments in  cases  of  death  or  resignation,  216. 


1697 


INDEX. 


VACANCIES— Continued. 

Temporary;  heads  of  departments;  President  may  fill, 
99,  212,  214. 
retirement  of  Major  General  Commandant,  Marine 
Corps,  929. 
VACCINATION: 

Medical  injections  to  prevent  disease,  458. 
VEGETABLES: 

Desiccated;  purchase  of  for  Navy,  1115. 
VEHICLES: 

Appropriation  for  purchase  and  operation  must  be 

specific,  1283,  1284. 
Automobiles;  quarterly  reports,  1546. 
Carriages;  restrictions  on  purchase  and  use  by  public 

officers,  1281,  1283,  1284. 
Definition  of,  185. 
Drivers;  restrictions  on  employment  of,  by  public  oflB- 

cers,  1281. 
Estimates  and  appropriations  for  carts,  Navy,  1103. 

for,  submitted  in  detail,  1398. 
Exchange  of  motor-propelled,  as   part   of  purchase 
price,  1419. 
of  tires  in  part  payment  for  like  articles,  1474. 
Hauling  for  departments  in  District  of  Columbia  by 

Secretary  of  the  Interior,  1553. 
Motor;  sale  of,  by  War  Department  to  other  depart- 
ments and  branches,  1531,  1532. 
Name  of  department  using,  must  be  conspicuously 

painted  on,  12S3,  1284. 
Passenger;  restrictions  on  purchase  and  maintenance 

1398. 
Restrictions  on  purchase  and  use  by  public  officers, 

1281, 1283,  1284. 
State  tax  on  Federal  automobiles,  48. 
VENEREAL  DISEASES: 

Protection  of  naval  forces  against,  1517. 
VESSELS: 

See  Vessels  of  the  Navy. 

Army  transports;  naval  constructor  detailed  to  duty 

with,  507. 
AuxiUary,  of  United  States;  officers  and  men  must 

belong  to  Naval  Reserve  Force,  1448. 
Coast  and    Geodetic   Survey;   transferred   to  Navy 

during  war  or  emergency,  1479,  1480. 
Commandeering  of  ocean  mail,  for  use  as  transports  or 

cruisers,  1217. 
Construction  and  repair  of,  by  Shipping  Board;  suit- 
able for  naval  purposes,  1466. 
Definition  of  "vessel,"  185. 

Fish  Commission;  relation  to  Navy  Department,  1186. 
Foreign  or  domestic,  in  ports  of  United  States,  during 

war  or  emergency,  1485. 
Lighthouse  Service,  transferred  to  Navy  during  war 

or  emergency,  1456,  1457. 
Merchant;  liability  of  officers  to  draft  in  time  of  war; 
duties;  wages,  1249. 
marine  to  be  developed  for  use  as  naval  auxiUary, 

1554, 1555. 
pennant  used  by  members  of  Naval  Reserve  Force 
commanding,    1448. 
Ocean  mail;  construction  of:  approval  by  Secretary  of 
the  Na^T,  1216. 
detail  of  naval  officers  for  duty  on,  1217. 
Owners  may  enroll  in  Naval  Coast  Defense  Reserve, 

1453. 
Public;  regulations  as  to  licenses,  etc.,  not  applicable 

to, 1135. 
Salvage  by  Government-owned;  disposition  of  money 

collected,  1533. 
Seizure  of;  belonging  to  alien  enemies,  1477. 

belonging   to   alien   enemies;   operated    through 

Shipping  Board,  etc.,  1477. 
in  slave  trade,  1347,  1348. 


VESSELS-Continued. 

Steam;  regulation  of,  1135, 1136. 
Tonnage  tax,  carrying  coal  for  Navy,  1408. 
Transportation  of  coal  for  Navy  in  foreign,  where 

American  charges  exces.sivc,  1408. 
United  States;  definition  of,  criminal  code,  1353. 

to  be  used  for  transporting  naval  supplies  unless 
charges  excessive,  1283. 
Volunteer  patrol  sciuadrons;  sale  of  gasoline  fuel  and 
oil  to,  1455. 
\TESSELS  OF  THE  NAVY: 

See  Contracts;  Crimes;  Public  property;  Vessels. 
Aid  or  executive  of  commanding  officer,  669. 
Ambulance  ships;  female  nurses  eligible  for  duty  on, 

1303,  1304. 
Appraisal  of,  before  sale,  1192. 

Appropriations   in   detail   required   for   repairs  and 
changes,  1299. 
restrictions  on  employment  of  civilians  from,  1281. 
Articles  for  the  Government  of  the  Navy  to  be  dis- 
played on,  996. 
Armament;  Secretary  of  the  Navy's  duties,  342. 
Assisting  vessels  in  distress;  estimates  and  appropria- 
tions for,  1103. 
Auxiliary;  officers  and  men  must  belong  to  Naval 

Reserve  Force,  1448. 
Bills  of  health;  estimates  and  appropriations  for,  1103. 
Boards  to  inspect  and  report  as  to  conditioUj  1190. 
to  pass  upon  use  of  patented  articles  by,  776. 
to  report  upon  repairs  to,  776,  777. 
Captured  by  enemy;  pay  of  officers  and  men  attached 

to,  891. 
Captures  by;  general  provisions  relating  to,  1130,  1131, 
1137-1147. 
on  inland  waters,  1170. 
Changes  in;  report  to  Congress  of  proposed,  1299. 

capital  ships;  statutory  limit  increased  to  $300,000, 
1457. 
Citizenship  of  officers,  571. 
Classification  of,  772, 1277. 

CoUisions;  claims  for  damages;  adjustment  of,  1358, 13.59. 
duties  of  master  or  person  in  charge;  penalty, 

1215, 1216. 
rules  for  preventing,  certain  inland  waters,  1246, 
1247. 
Great  Lakes,  etc.,  1240-1246. 
harbors,  rivers    and    inland   waters,   except 
Great  Lakes  and  Red  River  of  the  North, 
etc.,  1251-1261. 
motor  boats,  1356-1358. 

Red  River  of  the  North  and  rivers  emptying 
into  Gulf  of  Mexico,  1125-1130, 1135, 1246, 1247. 
regattas  or  marine  parades,  1300, 1301. 
Commandeering  of  vessels  for  naval  purposes,  1217, 

1218,  1467,  1475,  1476. 
Commanding  officer,  acting,  pimishments  by,  1005. 
authority  over  all  persons  on  board,  1442. 
duty  of  example  and  correction,  978,  979. 
hospital  ship;  may  convene  courts  and  inflict 

punishments,  1441. 
oaths  administered  by,  1240. 
precedence  of,  576,  669. 
punishments  inflicted  by,  1002. 
Command  of,  772-774,  1277. 
by  Army  officers,  444. 
by  retired  officers,  time  of  war,  659. 
hospital  ships,  703,  785. 
marine  officer  ineligible,  955. 
Commission,  number  to  be  kept  in,  774. 
Condemned;  removal  and  use  of  outfit  and  eqmpage, 

779. 
Confidential  plans;  filing  of,  in  returns  office,  397. 


1698 


INDEX. 


VESSELS  OF  THE  NAVY— Continued. 

Construction;  annual  report  of  expenditures  for,  381. 
disproportionate  expense  of  finishing,  1190. 
eight-hour  law,  1117,  1219,  1220,  1370,  1371. 
general  provisions  relating  to,  1195-1197. 
model  tank  for  experiments,  1250. 
old  material  to  be  used  for,  1190. 
ownership  before  acceptance,  773,  774. 
Secretary  of  the  Navy's  duties,  342. 
steel  material  to  be  of  domestic  manufacture,  1195. 
Courts-martial  other  than  naval,  convened  on,  65. 
Customs  inspection  of,  260. 
Deaths  on;  ellects  of  deceased  to  be  secured  for  legal 

representatives,  995. 
Definition  of,  mider  prize  laws,  1137. 
Derelicts;  removal  of,  1284. 
Destroying  or  injuring  vessel  or  equipment,  so  as  to 

hazard  safety  of,  980. 
Destruction  of  valueless,  779. 
Distilled  spirits  admitted  for  medical  purposes  only, 

989. 
Divine  service  to  be  conducted  on  Sunday,  979. 
Employment  of,  772,  773. 
agamst  pirates,  1130-1131. 
assisting  vessels  in  distress,  775, 1103. 
by  militia  to  maintain  law,  114. 
in  coast  survey,  1151. 
in  enforcing  immigration  laws,  1081. 
in  time  of  peace,  774. 
protection  of  customs,  1172. 
removal  of  dereUcts  at  sea,  1284. 
salvage,  1145,  1147. 
Secretary  of  the  Navy  executes  President's  orders, 

342. 
to  assist  distressed  navigators,  775,  1103. 
to  assist  vessels  in  distress;  salvage  collected  for 

service,  1508. 
to  enforce  neutrality  laws,  1319,  1320. 
to  enforce  regulations,  regattas  or  marine  parades, 

1300,  1301. 
to  enforce  sponge  law,  1289,  1290. 
to  prevent  aliens  fishing  in  Alaskan  waters,  1289. 
to  protect  fur  seals,  1387. 
Enlisted  men  attached  to;  employment  of,  when  ships 

are  docked  or  laid  up  for  repairs,  1383. 
Engines;  use  of  patented  articles  connected  with,  776. 
Equipment;  annual  report  of  expenditures  for,  381. 
outfits  chargeable  to  appropriation  "Increase  of 
the  Navy,  construction  and  machinery,"  1408. 
Espionage;  Ulegally  obtaining  information  concerning, 

etc.,  1482. 
Exchange  of,  prohibited,  778,  779. 
Exempt  from  foreign  and  State  interference,  67. 
First  Ueutenant;  detail  of  oflBcer  as,  577. 
Foreign  ports;  bills  of  health  and  quarantine  expenses, 

1103. 
Foreign  stations;  purchase  of  suppUes  for,  without 

advertising,  1113. 
General  provisions  relating  to,  772-779. 
Gifts  to;  acceptance  and  care  of,  1305. 
Home  port;  change  of,  1536. 
Home  yard;  permanent  station  defined  to  include, 

1536. 
Hospital  ships;  command,  703,  785. 

commanding    officer   may    convene   courts   and 

infUct  punishments,  1441. 
female  nurses  eligible  for  duty  on,  1303,  1304. 
Importing  dutiable  goods  in,  989. 
Jurisdiction  of  civil  and  naval  authorities,  292. 

of  homicide  committed  on,  66. 
License  regulations  not  applicable  to  officers  of,  1135, 
1136. 


VESSELS  OF  THE  N.WY-Continued. 
Loan  of;  for  quarantine  services,  1186. 

to  military  schools,  1277. 

to  nautical  schools,  1297,  1367,  136S. 
Log;  punishments   inflicted    by   commander   to    be 

entered  in,  1002. 
Lost  or  captured;  credits  to  paymaster,  266. 

or    sunk;  reimbursement    of    enhsted    men    for 
effects,  1106. 
Manning  of,  775. 
Marines  detached  for  service  on,  954. 

embarked  on;  jurisdiction,  1442. 
Marine  officer  ineligible  for  command  of,  955. 
Marriages  on  board,  575. 
Medical  officer  of,  to  report  upon  health  of  persons 

sentenced  by  summary  courts,  1009. 
Missing,  fixing  date  of  loss,  268. 
Model  tank  for  experiments,  1250. 
Monitors,  naming  of,  1261,  1262,  1304,  1305. 
Motor  boats;  regulation  of,  on  navigable  waters,  1356- 

1358. 
Names  stricken  from  Navy  Register,  1190. 
Naming  of,  774. 

battle  ships,  1261,  1262. 

monitors,  1261,  1262,  1304,  1305. 
Navigation  of;  duties  of  Hydrographic  Office,  387. 
Navigation  officer,  detail  of  officer  as,  577. 
Officering  of,  775. 
Official  Register  of  the  United  States  not  to  contain 

names  and  information  concerning,  1236. 
Ordinary,  laid  up  in,  774,  895,  897. 
Out  of  commission,  in  time  of  peace,  774. 
Ownership  of,  in  possesssion  of  builders,  773,  774. 
Passengers  dying  on;  disposition  of  effects,  995. 
Passengers;  report  of,  to  Secretary  of  the  Navy,  995. 
Patented  articles  used  in  connection  with,  776. 
Persons   on   board;  complete   lists   to   be   furnished 

Secretary  of  the  Navy,  995. 
Pilotage  and  towage;  estimates  and  appropriations 

for,  1103. 
Pilotage;  State  discrimination  against  prohibited,  1130. 
Pilots;  rules  for  the  government  of,  1135. 
Piracy;  use  for  suppression  of,  1130,  1131. 
Ports;  laid  up  iu  ordinary  in,  774. 
President's  direction  in  writing  necessary  for  sale  at 

less  than  appraised  value,  1192. 
Prisoners;  confinement  of  merchant  seamen  on,  576. 
Private  property,  receiving  on  board,  985. 

lost    or    damaged    on;  reimbursement    of   naval 
personnel,  1492-1494. 
Prizes  captured  by,  1137-1147. 

on  inland  waters,  1170. 
Procurement  of,  during  war  or  emergency,  by  contract 

with  owners,  1217, 1218, 1453, 1467, 1475, 1476. 
Provisions;  inspection  and  preservation  of,  £G5. 
Punishments  by  acting  commanding  officer,  1005. 

by  commanding  officer,  1002. 

by  naval  militia  officers  on  board,  71. 

on  board,  restricted,  1002. 
Purchased;  naming  of,  774. 
Purchase  of,  for  transportation  of  fuel,  1482, 1515. 
(iuarantine  expenses;  estimates  and  appropriations  for, 

1103. 
Hating  of,  774. 

Receiving  ship;  honorably  discharged  men  allowed 
home  on,  1201, 1202. 

not  a  seagoing  vessel,  897. 

sea  pay  for  duty  on,  879. 
Records  and  files  which  have  become  useless;  disposal 

of,  1381. 
Records  required  to  be  kept  by,  995,  996. 
Register;  names  stricken  from,  1190. 


1699 


INDEX. 


\'ESSELS  OF  THE  NAVY— Continued. 
Register;  elTect  of  striking  name  from,  779. 
Regulations  as  to  licenses,  etc.,  not  applicable  to,  1135. 
Repairs,  776,  777. 

annual  report  of  expenditures  for,  381 

and  changes  to  capital  ships:  statutory  limit  ir- 

ereased  to  $:{00,000,  1457. 
disproportionate;  names  stricken  from  Navy  Reg- 
ister, 1190. 
old  material  to  be  used  for,  1190. 
report  to  Congress  of  repairs  made,  1314. 
of  repairs  proposed,  1299. 
Reports  to  Congress,  vessels  stricken  from  Navy  Regis- 
ter, 1190. 
Reser\'e  material  for  fitting  out,  in  time  of  war  or  emer- 
gency, 1473,  1482. 
Rules  for  preventing  coUisions  at  sea;  international, 
1204-1215. 
certain  inland  waters,  1246, 1247. 
Great  Lakes,  etc.,  1240-1246. 

harbors,  rivers  and  inland  waters,  except  Great 
Lakes  and  Red  River  of  the  North,  etc.,  1251- 
1261. 
motor  boats,  1356-1358. 

Red  River  of  the  North  and  rivers  emptying  into 
Gulf  of  Mexico,  112.5-1130,  1135,  1246,  1247. 
Rules  governing  regattas  or  marine  parades,  1300, 1301. 
Sales,  777-779,  1457. 

annual  report  of,  381. 
bids  inadequate;  disposition  of  vessel,  779. 
of  useless  papers  on,  1381. 

of  vessels  that  have  been  stricken  from   Navy 
Register,  1192. 
Salvage  awarded  to;  distribution,  1145, 1147. 

decisions  relating  to,  775,  776. 
Services  rendered  for  other  departments;  adjustment 

of  appropriations,  579,  1409,  1536. 
Shipwreck  or  other  marine  disaster,  compensation  for 

personal  effects,  272,  1492-1494. 
Sick  and  disabled  on;  separate  compartment  for  treat- 
ment of,  995. 
State  discrimination  against;  pilotage  rates,  1130. 

interference  with,  49. 
Steerage  officers;  ensigns,  704. 
Stranding  or   hazarding   or   running  upon  rocks  or 

shoals,  9S0,  985. 
Stricken  from  register;  sea  pay  for  duty  on,  879. 

from  register;  status  of,  779. 
Sunk  or  captured;  compensation  for  lost  effects,  269, 
1492-1494. 
settlement  of  accounts  of  enlisted  men,  268. 
Sunk  or  destroyed;  arrears  of  pay  due  enlisted  men,  264. 
Towage;  estimates  and  appropriations  for,  1103. 
Trading  on,  for  private  benefit;  punishment,  989. 
Transfer  of,  to  Shipping  Board,  1467. 
Transporting  gold,  silver  or  jewels  on,  985. 
Trial  trip;  ownership  before  acceptance,  773. 

naval  officer  not  entitled  to  mileage  for  travel  on, 
844. 
Vessel  of  the  United  States,  defined:  criminal  code, 

1353. 
Watch  officer,  detail  of  officer  as,  577. 

and  division  officers;  ensigns  assigned  as,  704. 
Witnesses  transported  on,  from  foreign  country,  420, 

576. 
Wrecked,  lost  or  captured;  court-martial  or  court  of 
inquiry  to  investigate,  891,  996. 
or  lost;  pay  of  officers  and  men  separated  from,  891. 
status  of  crews;  authority  of  officers,  996. 
VETERANS: 

See  M'ar  Risk  act. 

Artificial  limbs  allowed,  1156, 1157, 1181, 1217. 


VETERANS— Continued . 

Compensation  for  death  or  disability,  1498-1501. 
not  assignable  or  subject  to  debts,  etc.,  1496. 
under  war  risk  act;  excludes  benefits  of  other  laws, 
1.300. 
not  affected  by  termination  of  war,  1498. 
Death;  for  crime,  bar  to  benefits,  1500. 

to  be  officially  recorded,  1500. 
Discharge  or  dismissal  for  cause,  bar  to  benefits,  1496. 
Dismissal,  dishonorable  or  bad-conduct  discharge  ex- 
cludes compensation,  1500. 
Hospital  and  medical  treatment,  1499. 
Insurance  under  war  risk  act:  effect  of  termination  of 

war  with  Germany,  1501. 
Medical  examinations  and  treatment;  refusal  to  sub- 
mit, 1499,  1500. 
Pensions;  effect  of  war  risk  act  on,  1155. 
Preference  for  appointment  and  retention  in  civil  es- 
tablishment, 338,  7S.5, 1065,  1180,  1383,  1524,  1526,  1.5.30. 
Service  pension  allowed  disabled  enlisted  men.  Navy 

and  Marine  Corps,  1154, 1155. 
Trusses  furnished  to,  434, 1185. 

War  risk  act:  effect  of,  on  allowance  to  enlisted  men, 
Na\-y  and  Marine  Corps,  1155. 
•    compensation  not  allowed  in  addition  to  pension 
or  gratuity,  1499. 
Widows  and  orphans  of,  preferred  for  retention  in  civil 
establishment,  1180. 
VETO: 

Bill  altering  military  records,  35. 

annulling  court-martial  finding,  35. 
restoring  dismissed  officer,  34. 

retired  officers,  35,  36. 
to  render  retired  officers  not  amenable  to  court- 
martial,  643,  644. 
Power  of  President,  34. 
VICE  AD3IIRALS: 

Allowances  same  as  Lieutenant  general,  1512. 

Fleet  officers  to  have  rank  of,  1481. 

Pay,  791,  797,  1481. 

Rank  with  lieutenant  generals,  662. 

Secretaries  allowed  for,  455. 

and  clerks  to,  at  sea;  civilians  not  allowed,  1182. 
pay  of,  794,  805. 
VICINITY: 

Definition  of,  843. 
VIRGIN  ISLANDS: 

Citizenship  in,  113,  1472. 

Naval  officer  may  be  appointed  to  office  in,  1075. 

may  be  detailed  as  governor  of,  1470. 
Status;  not  organized  territory,  113,  1075. 
Temporary  government  provided  for,  1470-1472. 
VIRTUE: 

Commanding  officers  to  show  example  of,  978. 
VISITORS: 
See  Boards. 

Board  of.  Naval  Academy,  1197, 1458. 
Naval  Observatory,  1276. 
VOID: 

Bad-conduct  discharge  of  enlisted  man,  1008-1009. 
Dismissal  of  naval  officer,  1012-1014. 
Enlistment,  552. 

court-martial  jurisdiction  during,  976. 
VOIDABLE: 

Enlistment,  550. 

court-martial  jurisdiction  during,  977. 
VOLUNTARY  BONDS: 
Qe.&  Bonds. 
Defined,  476. 
VOLUNTEER  NAVAL  RESERVE: 
General  provisions  relating  to,  1454. 


1700 


n^DEX. 


VOLUNTEER  OFFICERS: 

Transferred  to  regular  Navy;  credited  with  sea  serv- 
ice, 530. 
VOLIJXTEER   PATROL  SQUADRONS: 

Sale  of  gasoline  fuel  and  oil  to  vessels  of,  1455. 
VOLUNTEERS: 

List  of  persons  eligible  for  commissions  in,  during  war, 

1392. 
Pay  of;  same  as  regular  Navy,  829. 
VOTE: 

Naval  personnel,  in  territories,  1075. 

personnel's  right  to,  not  restricted  by  criminal 
code,  1321. 
of  member  of  court-martial  not  to  be  disclosed,  1019. 
State  elections;  naval  officers  not  to  interfere  with, 
1079. 
VOTE  OF  THANKS: 

See  Thanks  of  Congress. 
WAGES: 

See  Pay  of  civil  establishment;  Pay  of  Naval  Establish- 
ment. 
Assignment  of,  naval  service,  573,  892. 
Fraudulent  claims  for,  1323. 
Navy  yard  employees;  how  fixed,  1177. 
WAITING  ORDERS: 

Commutation  of  quarters,  700. 
Pay  of  naval  officers,  824,  825. 
Retirement  distinguished  from,  643. 

wai\t:r: 

Accused;  failure  to  arraign,  126. 

privilege  against  self-crimination,  121. 
right  to  confront  witnesses,  132. 
right  to  be  present  at  trial,  126-128. 
rights  and  privileges,  121, 132, 1026, 1045, 1057, 1058, 
1062. 

Apportionment   of  appropriations;  head    of  depart- 
ment must  make  in  writing,  1105. 

Candidate  for  promotion;  right  to  appear  before  board, 
723,  728. 

Defects  in  charges  and  specifications  not  promptly  ob- 
jected to,  1045. 

Mileage;  officer  can  not  be  deprived  of  statutory  al- 
lowance, 844,  845. 

Objections  by  accused  before  court-martial,  1026. 

Pay  or  allowances,  208,  414,  561,  825,  877. 

Regulations,  200. 

Retirement  pri\'ileges,  521,  523. 

Statute  of  limitations,  by  accused,  1057,  1058,  1062. 

Statutory  requirements  for  appointment  as  midship- 
man, 750. 

Transportation  home,  enlisted  man  discharged  abroad, 
561. 
WAR: 

See  Articles  for  the  government  of  the  Navy;  Battle;  In- 
surrection. 

Acting  assistant  surgeons  appointed  during,  1184. 

Advancement  of  officers  for  conduct  in  battle,  453,  454, 
734-736,  921,  933,  1275,  1276,  1289. 

Allies;  failing  to  assist  vessels  of;  punishment.  Navy, 
980. 

Authorized  enlisted  strength  increased  during  national 
emergency,  1403,  1.528. 

Burial  in  national  cemeteries  of  persons  having  service 
during,  1163. 

Captured  vessels;  officers  and  men  attached  to;  pay 
of,  891. 

Capture  of  prize  by  naval  vessels,  1137-1147,  1170. 
regulation  by  Congress,  38. 

Civilians  commissioned  in  regular  Na\'y  during,  1392, 
1393. 

Coast  and  Geodetic  Survey  transferred  to  Navy  dur- 
ing, 1479,  1480. 


WAR— Continued. 

Coast  Guard;  how  employed  during,  1400, 1456. 
Commandeering  of  factories;  procurement  of  vessels, 
etc.,  during,  1475,  1476. 
merchant  vessels  for  use  as  transports  or  cruisers, 

1218. 
ocean  mail  vessels  for  use  as  transports  or  cruisers, 

1217. 
supplies  during,  1413. 
vessels  for  naval  purposes,  1467. 
Conquest  of  territory,   10. 
Contraband   of;  purcLase  without   advertising    for. 

Navy,  1113. 
Courts-martial;  how  constituted  during,  1494. 

how  convened  during,  1442. 
Delivering  messages  from   enemy,   punishment  by 

naval  court-martial,  9S1. 
Desertion  during  battle;  punishment.  Navy,  980. 
during;  effect  of  resolution  terminating  war,  for 
certain  purposes,  1558. 
forfeiture  of  citizenship  rights,  981,  1077,  1078. 
penalty  for  enlisting  persons  guilty  of,  994. 
punishment,  979. 
statute  of  limitations,  10.57. 
enticing  others  to  desert  in  time  of,  979. 
or  betrayal  of  trust  during,  or  enticing  others,  979. 
Destroying  public  property  during,  1504,  1.505. 
Dismissal  of  officers  during,  441,  1010-1014. 
Distinguished  conduct  during;  advancement  of  officers 
for,  453,  4.54,  734-736,  921,  933,  1275,  1276,  1289. 
enhsted  men  rewarded  for,  512, 1275. 
memorial  to  naval  officers,  1314. 
Drafting  officers  of  merchant  vessels  for  service  dur- 
ing, 1249. 
Enemy  defined,  892. 

Espionage;  enforcement  of  neutrality,  etc.,  1482-1490. 
Furloughed  enlisted  men  subject  to  recall  during,  1436. 
Germany  and  Austria-Hungary;  date  of  termination, 

for  certain  purposes,  1557-1559. 
Giving  intelligence  to  enemy  or  rebel ;pimishment  for, 

979. 
Government  of  conquered  territory,  41, 109. 
Insane  prisoners  and  interned  persons  under  jurisdic- 
tion of  Navy  Department,  1417,  141S. 
Insurrection;  general  provisions  relating  to,  1169-1172. 
Intercourse  with  enemy  or  rebel,  punishment  for,  979. 
Internment  of  naval  officers  in  neutral  country;  pay 

and  allowances  during,  S92. 
Inventions;  patents  withheld  during,  1 194,  1501,  1502. 
Jurisdiction  over  civihans  during,  44. 

over  soldiers  during,  42. 
Lighthouse  Service;  status  and  duties  during,  1456, 

1457. 
Loss  or  damage  of  private  property  rturing;  reimburse- 
ment of  naval  personnel,  1492-1491. 
Manufacture  and  possession  of  explosives  during,  1492. 
Medals  and  decorations  interchanged  between  United 

States  and  foreign  forces,  1516,  3  517. 
Medals  of  honor,  etc.,  for  naval  p-!rsonnel  distinguish- 
ing themselves  in  battle,  etc..  512-515,  875,  1402, 
1521-1523. 
Men  missing  in  action;  allotments  ".ontinued,  1520, 1521. 
Naval  records  of;  collection,  pubhcation,  etc.,  12.s3, 

1295,  1389. 
Naval  Reserve  Force;  active  serv  ce  during,  1443, 1447, 

1452. 
Na^'y  statutes  relating  to;  cffccton.of  resolution  termi- 
nating war  with  Germany  for  certain  purposes,  1559. 
Philippine  insurrection,  272. 

Plans  for;  duties  of  Chief  of  Naval  Operations,  1401. 
Political  questions,  jurisdiction  of  courts,  105. 
Power  of  Congress,  38. 


1701 


INDEX. 


WAR— Continued . 

Power  of  President,  38,  39. 

Precedence  of  Naval  Reserve  Force  members  during, 

1511. 
Procurement   of  vessels   during,    by   contract   with 

owners,  1453. 
Promotion  of  Naval  Reser\-e  Force  members  during, 

1510. 
Property  of  belligerents,  39. 
Public  Health  Service;  duties  during,  1279. 

subject  to  Navy  laws  during,  1491. 
Rear  admirals;  selection  of,  during,  454. 
Red  Cross;  use  of,  during,  1369, 1370. 
Reser^-e  material.  Navy,  for  use  during,  1473, 1482. 
Retired  enlisted  men  employed  on  active  duty  during, 
872,  873,  890,  1269,  1299,  1405,  1406,  1451,  1514, 
1546,  1.547. 
Retired  officers;  active  duty, pay  and  allowances;  pro- 
motion, 656,  1512,  1513. 
assignment  to  comimand  during,  659. 
Sea  duty;  staff  officers  who  have  been  chiefs  of  bu- 
reaus, 578. 
Seizure  of  vessels  belonging  to  aUen  enemies,  1477. 
Selection  of  commanding  officers,  fleets  and  subdivi- 
sions, during,  1481. 
Shore  duty  during;  line  officers  of  Navy;  eligibility  for 

promotion  by  selection,  1434. 
Spies,  etc.,  punishment  by  naval  court-martial,  981. 
Termination  of,  with  Germany;  date  of,  for  certam 
purposes,  1557-1559. 
effect  of,  on  war  risk  act,  1498, 1501. 
Time  of  war,  construed,  981. 
Transportation  of  troops  and  material  during;  how 

expedited,  119S,  1465. 
Waiver  of  eight-hour  law  during,  1370, 1371. 
Yielding  or  cowardly  conduct  in  battle;  punishment 
for,  980. 
WAR  DEPARTMENT: 

See  Army;  Articles  for  the  Governvient  of  the  Navy; 
Articles  of  War; Eiecutiie  departments;  Marine  Corps; 
Public  property. 
Ammunition;  transfer  to  other  departments,  1527. 
Motor  \  chicles  sold  to  other  departments,  1531,  1532. 
Naval  officers  detailed  to  duty  under,  507,  578. 
supervisor  of  New  York  Harbor,  1198, 1199. 
Sale  of  ordnance  or  ordnance  stores  to  other  depart- 
ments, 1388. 
Transfer  of  naval  ordnance  to,  1515. 
WAR  MATERIAL: 

Destruction  of,  during  war;  punishment,  1504, 1505. 
WARRANT  MACHINIST: 

Title  changed  to  machinist,  1314. 
WARRANT  OFFICERS: 

See  Machinists;  Pay  clerks;  Pay  of  Naval  Establishment 

Pharmacists . 
Acting;  appointment  of,  525. 

appointments  as  machinists,  1269. 

made  permanent;  machinists;  regulations,1269. 
discharge  and  enlistment  of,  525. 
pay,  794,  803. 
Age  for  appointment  as,  512. 

Appointment  as  commissioned  warrant  officers,  1266, 
1267, 1282. 
as  ensigns,  1277, 1280-1282. 
of  boatswains,  gunners,  sailmakers  and  carpenters, 

509. 
of  convicted  deserter  from  the  Army,  573. 
of,  not  a  promotion,  522. 

to  commissioned  ranks  for  war  service;  may  revert 
to  former  status,  1550,  1551. 
Assistant  paymasters  appointed  from,  510. 


WARRANT  OFFICERS-Continued. 

Boatswains,  gunners,  carpenters  and  sailmakers,  pro- 
motion of,  1206,  1267. 
Command,  right  of,  1267. 
Commissioned  officer  defined  to  include,  1496, 
Commissioned  warrant  officers;  appointed  from,  1266, 
1267,  1282. 
chief  warrant  officers  designated  as,  512. 
Deposits;  enUsted  men  appointed  as,  524. 
Detailed  as  storekeeper  on  foreign  station,  579, 
Dismissal  of;  sentence  must  be  confirmed  by  President, 
1036. 
pharmacists  removable  by  Secretary  of  the  Navy, 
1262. 
Enlisted  men  appointed  as,  not  discharged  from  en- 
listment, 523. 
appointed  as,  not  promoted,  513. 

as  pharmacists,  1420. 
preference  in  appointment,  512,  534,  1268, 1269, 
promoted  to  pharmacist ;  when  pay  commences,  830. 
Ensigns  appointed  from,  1277, 1280-1282. 
Examination  for  promotion,  1267. 
Foreign  shore  duty;  pay,  1529. 
General  provisions  relating  to,  509-525. 
Gunners  may  be  required  to  perform  duty  of  keeper  of 

the  magazine,  533. 
Heat  and  light  allowance,  1430. 
Leave  of  absence,  1430. 
Line  and  staff,  448-449. 

Machinists,  appointment  of,  qualifications,  etc.,  1268, 
1269. 
promotion  of,  to  chief  machinist,  1314. 
Marine  Corps,  918,  919, 1462, 1479. 
foreign  shore  duty  pay,  1474. 
reserve  service  credited  to,  1529, 1530. 
Mates  appointed  as,  522. 
Mates  are  not,  517. 
Naval  Reserve  Force;  appointment  of  warrant  officers 

in,  1444,1451. 
Not  commissioned  officers,  511. 

enlisted  men,  525. 
Number  and  appointment  of,  509. 

of  pharmacists,  1419, 1420. 
Pay  clerks,  acting  pay  clerks  and  chief  pay  clerks,  1406, 

1407. 
Pay  of,  794,  803, 1267, 1302, 1529. 

commissioned  warrant  officers,  803. 
on  shore  duty,  1472. 
Pharmacists,  Hospital  Corps,  1262, 1419,  1420. 
Promotion  of,  510. 
of  machinists,  1314. 
of  pay  clerks,  1406, 1407. 
of  pharmacists  to  chief  pharmacist,  1420. 
to  commissioned  warrant  officer,  1286,  1267, 1282. 
to  ensign,  1277, 1280-1282. 
Punishments  inflicted  upon,  by  commanding  officer, 

1002. 
Quarters,  697,  827, 1267, 1275. 
Rank,  assimilated,  may  be  assigned  to,  704. 
of  machinists,  1269. 

of  machinists  on  promotion  to  chief  machinist,  1314. 
of,  on  promotion  to  commissioned  warrant  officers, 
1267. 
Reduction  of,  court-martial  sentence,  524. 
Regulations,  copy  to  be  furnished  to,  787. 
Retired;  active  duty  in  war  or  emergency;  promotion; 
pay  and  allowances,  1512, 1513. 
active  duty  pay,  913. 

creditable  record,  etc.,  1503, 1504. 
pay,  1303. 
Retirement  of,  511,  512, 602. 
machinists,  1269. 


1702 


INDEX. 


WARRANT  OFFICERS-Continued. 

Reverting  to  status  of;  after  failing  to  qualify  for  higher 
commissioned  grades,  1550,  1551. 
after  service  iu  Naval  Reserve  Force,  1529, 1530. 
Revocation  of  appointment,  524. 
Service  in  Naval  Reserve  Force  credited  to,  1529, 1530. 
Special  examination  for  promotion  of  enUsted  men  to, 

514. 
Title  of,  512. 

warrant  machinist  changed  to  macliiuist,  1314. 
Uniform,  machinists,  prescribed  by  Navy  Department, 

1269. 
Warrant  machinist;  title  changed  to  machinist,  1314. 
WARRANTS: 

Appropriations  drawn  from  Treasury  on,  1104. 
Arrest  of  miUtary  offenders  without,  117,  118. 
Defined;  commission  distinguished  from,  511. 
Payment  of  pubUc  accounts,  276. 
Search  and  seizure,  117. 
WAR  RISK  ACT: 
See  Veterans. 
Allotments,  1497, 1498. 

men  missing  in  action;  continued  payment,  1520, 
1521. 
Benefits  not  assignable,  not  subject  to  debts,  etc.,  1496. 
Compensation,  death  or  disabiUty,  1498-1.501. 
excludes  benefits  under  other  laws,  1500. 
not  allowed  if  receiving  pension  or  gratuity  under 

other  laws,  1499. 
provisions  not  affected  by  termination  of  war,  1498. 
to  Navy  Nurse  Corps  (female)  in  lieu  of  employees' 
compensation  benefits,  1500. 
Death;  for  crime  excludes  benefits,  1500. 

to  be  officially  recorded,  1500. 
Definitions,  1496. 

Detail  of  naval  surgeons  to  bureau  of,  1495. 
Director;  powers  of,  1495. 

Discharge  or  dismissal  for  cause,  bar  to  benefits,  1496. 
Effect  of,  on  service  pensions,  enlisted  men.  Navy  and 

Marine  Corps,  1155. 
Gratuities;  laws  providing  for,  not  applicable  to  per- 
sons in  service  on  or  after  October  6,  1917;  1500. 
Hospital  and  medical  treatment,  1499. 
Information  furnished  bureau  of,  by  heads  of  depart- 
ments, 1495,  1496. 
Insurance;  amount,  persons  to  whom  applicable,  1501. 
effect  on,  of  termination  of  war  with  Germany,  1501. 
time  for  making  application,  1501. 
Medical  examinations  and  treatment;  refusal  to  sub- 
mit to,  1449,  1500. 
Pension  laws  appUcable  to  persons  in  service  on  or 

after  October  6,  1917;  1500. 
Text  of  act,  1495-1501. 
WASTE: 

Of  public  property,  punishment  for,  985. 
WASTE   PAPERS: 

Disposal  of,  by  executive  departments,  1202,  1203. 
in  buildings  under  control  of  departments,  1248. 
on  naval  vessels,  1381. 
navy  yards  and  stations,  1401. 
W.ATCIOIEN: 

See  Civil  establishment. 

Estimates  and  appropriations  for,  Navy,  1103. 
Pay  of,  etc.,  204,  205. 
WATCH  OFFICERS: 

Detail  of,  on  naval  vessels,  577. 
Ensigns;  duty  as,  704. 
WATERS   OF  THE   UNITED  STATES: 

Construction  of,  1015. 
WATER  TENDERS: 
Increase  in  pay  of,  1495. 


WEAPONS: 

Right  of  people  to  bear  arms,  117. 
WEATHER  BUREAU: 

Data  furnished  to  Hydrographic  Office,  388. 
Jurisdiction  of  Hydrographic  Office  and,  388. 
WEIGHERS: 

Fuel  purchased  for  public  service,  1110. 
WEST  INDIAN  ISLANDS: 

See  Virgin  Islands. 
WEST  POINT: 

See  Military  A  cademy. 
WHARF: 

Not  pubUc  building,  285. 
State  toll  for  use  of,  50. 
WHARFAGE: 

Estimates  and  appropriations  for,  Navy,  1103. 
WHEELS: 

Estimates    and    appropriations    for    timber-wheels, 
Navy,  1103. 
WHOLLY   RETIRED: 
Defined,  618,  630,  911. 

Defined  and  distinguished  from  discharge  and  dis- 
missal, 97. 
Disabihty  not  incident  to  the  service,  617. 
Distinguislied  from  retirement,  911. 
Names  of  officers  omitted  from  Navy  Register,  631. 
S}monymous  with  discharge,  630. 
WIDOWS: 

Of  discharged  erfiisted  men;  preferred  for  civil  em- 
ployment, 1180. 
Payment  of  death  gratuity  to,  1546,  1547. 
WILKES'S   EXPEDITION: 

Engraved  plates  of;  use  by  Navy  Department,  380. 
WITNESSES: 

See     Courts-martial;    Evidence;    Self-crimination;  Sub- 
poenas. 
Absent;  accused  responsible  for  absence,  132. 

admission  of  what  would  be  testified  by,  132,  1055. 
court-martial  may  try  additional  charges  on  return 
of,  1025. 
Accoimting  officers  may  administer  oaths  to,  274. 
Accused  entitled  to  process  for  obtaiaing,  129, 132, 133. 
entitled  to  confront,  129,  131,  132. 
unable  to  hear,  126. 
Appropriation  for  compensation  of,  naval  courts,  1103, 

1310. 
Assistant  head  of  department  required  to  give  testi- 
mony, 422. 
Boards  of  investigation,  sworn,  217,  218. 
Bonds,  483. 
Bribery  of,  1336. 

Character,  right  of  accused  to  obtain,  133. 
Civilian,  before  courts-martial  and  courts  of  inquiry; 

compulsory  process,  1310. 
Compelhng  testimony  of,  in  departmental  cases,  220. 
Competency  of;  conviction  by  court-martial,  1047. 
Congressional  committees;  protection  of,  421. 
Contempt  of  court  punishable  by  general  court-martial, 

1021. 
Courts-martial  compelling  attendance  of,  1021,  1022, 
1310. 
fees  must  be  paid  or  tendered  in  advance,  1022. 
per  diem  pay;  estimates  and  appropriations  for. 

Navy,  1103. 
recalled  on  return  of  absent  member,  1032. 
Courts  of  inquiry,  cross-examination  of,  132,  1056. 
may  summon,  1055,  1310. 

per  diem  pay;  estimates  and  appropriations  for. 
Navy,  1103. 
Cross-examination  of,  departmental  cases,  219. 
Cumulative,  right  of  accused  to  obtain,  132. 


1703 


IXDEX. 


WITNESSES— Continued. 

Degradation  of,  naval  courts,  1310. 

Departnipnts  may  seciu-e  attendance  of;  in  connection 

with  claims,  219. 
Depositions  for  use  before  naval  courts,  1311,  1312. 
Examining  boards  for  promotion;  testimony  of,  re- 
corded, 724. 
E.xpenses;  naval  officer  before  grand  jury,  843. 
Experts,  412,  611,  1025. 

accounting  officers'  jurisdiction  as  to  payment  of, 

241. 
before  courts  of  Inquiry,  1056. 
Fees;  additional  allowance  to  witness  outside  of  juris- 
diction, 411. 
against  United  States,  413. 

appropriation  for  paying,  220,  413,  418,  1103,  1310. 
attending  from  foreign  country,  420. 

in  departmental  cases,  220. 
commission  to  take  testimony,  424. 
courts-martial,  415. 
District  of  Columbia  employee,  415. 
employed  in  Government  service,  413. 
estimates  and  appropriations  for.  Navy,  1103, 1310. 
expenses  of,  in  preparing  to  testify,  412. 
experts,  412. 

extradition  proceedings,  416. 
for  giving  depositions,  425. 
general  provisions  relating  to,  410-420. 
Government  employees;  character  of  expenses  al- 
lowed, 417. 
Government  employee;  witness  for  the  Govern- 
ment, 415. 
Government  employee  before  court-martial,  415. 
Government  employee;  witness  for  private  party, 

415. 
Government  officers  before  State  courts,  416. 
identifying  party  under  charges,  415. 
increased  allowances  in  certain  States,  412. 
naval  courts;  payment  of,  1310. 
naval  officer  testifying  against  the  Government, 

415. 
naval  personnel,  414. 
officers  of  courts  not  allowed,  413. 
outside  of  jurisdiction,  417. 
prisoners,  414. 
Senators,  414. 
temporary  employees,  414. 
transported  on  pubUc  vessel,  420. 
Government  employees  and  officers,  413. 
leave  of  absence,  417. 
salary  allowed,  415. 
Heads  of  departments;  jurisdiction  of  courts  to  sub- 
poena, 424. 
may  decline  to  testify  or  produce  records,  194. 
Imprisonment  to  insure  appearance  of,  425,  426. 
Interpreters  are  not,  412. 

Investigating  officer  may  administer  oath  to,  217,  218. 
Members  of  Congress,  33. 

of  court-martial  as  witness,  131,  1019. 
Mileage,  410. 

naval  courts;  payment  of,  1310. 
no  testimony  given,  415. 
Naval  boards  may  administer  oaths  to,  217,  21S. 
Naval  courts;  refusal  to  appear  or  testify;  punishment, 

1310. 
Naval  militia  members  before  naval  court-martial,  414. 
Naval  personnel,  allowances  of,  414. 
Oath  of,  before  any  court-martial,  1021. 


WITNESSES-Continued. 

Perjury  before  general  court-martial,  1021 
Prisoners,  414. 

securing  attendance  of,  403. 
Prize  cases;  fees,  1147. 

Protection  of,  in  examinations  by  departments,  219. 
Recognizance  required  to  insure  appearance  of,  425, 426. 
Retired  officers,  414. 

attending  court-martial  as,  658. 
Right  of  accused  to  be  confronted  with,  in  naval  cases,68. 
Self-crimination,  protection,  121, 1310. 
protection  for  refusing  to  answer,  403. 
requiring  witness  to  answer,  1023. 
Senators;  compensation,  414. 
Subpoena;  form  of,  425. 
Summary  courts-martial;  oath  of,  1006. 
Transportation  from  foreign  port,  420, 576. 
WIVES: 

Officers  and  enUsted  men;  transportation  furnished 
to,  1535. 
WOMEN: 

Clerkships  open  to,  202. 
Compensation  of,  in  departments,  204. 
Enlisted  man  defined  to  include,  1496. 
Sureties  on  bonds;  married,  484,  485. 
WOOD: 

See  Contracts. 
WORDS: 

Mutinous  or  seditious;  punishment  for  uttering  in 

Na\'y,  984. 
Provoking  or  reproachful;  use  of,  toward  other  persons 
in  Navy,  984. 
WORKMEN: 

Eight-hour  law  applicable  to,  1117, 1219, 1220, 1370, 1371. 
WORLD  WAR: 

Burial  in  national  cemeteries  of  persons  having  service 
during,  1163. 
WORSHIP: 

Form  of;  chaplains,  502. 

Naval  personnel  earnestly  recommended  to  attend 
divme  services,  979. 
WOUNDS: 

Line  of  duty;  definition  of,  710. 
not  bar  to  promotion,  709. 
WRECK: 

See  Vessels  of  the  Navy. 

Marking  and  removal  of,  international  agreement,  1223. 
Presumption  of,  missing  vessels,  268. 
WRITERS: 

Employment  from  naval  appropriations  restricted,1281. 
WRITING: 

False;  punishment  for  offenses  not  otherwise  specified 

1332. 
Forgery  of,  1322, 1323. 
Includes  printing   and    typewriting,   in   construing 

Criminal  Code,  1355. 
Larceny  of,  value,  1350. 
WRITS: 

See  Certiorari;  Habeas  corpus;  Mandamus;  Prohibition; 
Replevin. 
YARDS  AND   DOCKS: 

SeeBureaiis;  Chief s  of  bureaus . 
YOUNG  MEN'S  CHRISTIAN  ASSOCIATION: 

Heat  and  Ught  furnished  buildings  in  navy  yards,  1366. 
ZOOLOGICAL  PARK: 

Acquisitions  for;  heads  of  departments  to  assist  in 
collection,  1204. 


1704 


o 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW 


AN  INITIAL  FINE  OF  25  CENTS 

WILL  BE  ASSESSED  FOR  FAILURE  TO  RETURN 
THIS  BOOK  ON  THE  DATE  DUE.  THE  PENALTY 
WILL  INCREASE  TO  50  CENTS  ON  THE  FOURTH 
DAY  AND  TO  $1.00  ON  THE  SEVENTH  DAY 
OVERDUE. 


JUN  7  iai9 


DEC   9  1941 


^UG    15  1942 


MftR  26  1944 


M 


JAN  3   ly^^ 


MAY  22  %m 

LD  21-95»!  7,'37 

YD   15638 


r~' 


/ 


5034.'$! 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 


X' 


r  *•-*"'«** 


#11  #  T 


».,    •;    *!    tJ     *     *    *    ^J^JiJ^.^*M%W*m^*    *" 

•    »•    ,•    *   *■■    »    'fi  ii   .«  «   fi  -f  '*  ^  ♦  «   w  ■*  * 

«   *   «S   f  f   f   «   «   *^»  «.« 

Ai  *  «  f  «■*   «  «  «  «-^  <l  *i  «  *   '^  '♦^ 
»■   V   ♦■   ♦■  «   -f  ♦  #  «   (f  *  -*  •^ 

,    ,    %    t    ■*    #    «  -    ^ 

^    *    *    %'    *.«i    *i  ,-    i'    " 
^  it   I!    -♦   #    «    •    ''    >=    '., 


«   «    *. 


